the altruist in politics" by benjamin cardozo transcriber's note: "the altruist in politics" was delivered by cardozo as his commencement oration at columbia college in 1889. it was never copyrighted. columbia university, which administers cardozo's literary estate, has explicitly granted permission to project gutenberg to publish it. ***** there comes not seldom a crisis in the life of men, of nations, and of worlds, when the old forms seem ready to decay, and the old rules of action have lost their binding force. the evils of existing systems obscure the blessings that attend them; and, where reform is needed, the cry is raised for subversion. the cause of such phenomena is not far to seek. "it used to appear to me," writes count tolstoi, in a significant passage, "it used to appear to me that the small number of cultivated, rich and idle men, of whom i was one, composed the whole of humanity, and that the millions and millions of other men who had lived and are still living were not in reality men at all." it is this spirit-the spirit that sees the whole of humanity in the few, and throws into the background the millions and millions of other men-it is this spirit that has aroused the antagonism of reformers, and made the decay of the old forms, the rupture of the old restrictions, the ideal of them and of their followers. when wealth and poverty meet each other face to face, the one the master and the other the dependent, the one exalted and the other debased, it is perhaps hardly matter for surprise that the dependent and debased and powerless faction, in envy of their opponents' supremacy, should demand, not simple reform, but absolute community and equality of wealth. that cry for communism is no new one in the history of mankind. thousands of years ago it was heard and acted on; and, in the lapse of centuries, its reverberations have but swelled in volume. again and again, the altruist has arisen in politics, has bidden us share with others the product of our toil, and has proclaimed the communistic dogma as the panacea for our social ills. so today, amid the buried hopes and buried projects of the past, the doctrine of communism still lives in the minds of men. under stress of misfortune, or in dread of tyranny, it is still preached in modern times as plato preached it in the world of the greeks. yet it is indeed doubtful whether, in the history of mankind, a doctrine was ever taught more impracticable or more false to the principles it professes than this very doctrine of communism. in a world where self-interest is avowedly the ruling motive, it seeks to establish at once an all-reaching and all-controlling altruism. in a world where every man is pushing and fighting to outstrip his fellows, it would make him toil with like vigor for their common welfare. in a world where a man's activity is measured by the nearness of reward, it would hold up a prospective recompense as an equal stimulant to labor. "the more bitterly we feel," writes george eliot, "the more bitterly we feel the folly, ignorance, neglect, or self-seeking of those who at different times have wielded power, the stronger is the obligation we lay on ourselves to beware lest we also, by a too hasty wresting of measures which seem to promise immediate relief, make a worse time of it for our own generation, and leave a bad inheritance for our children." in the future, when the remoteness of his reward shall have weakened the laborer's zeal, we shall be able to judge more fairly of the blessings that the communist offers. instead of the present world, where some at least are well-to-do and happy, the communist holds before us a world where all alike are poor. for the activity, the push, the vigor of our modern life, his substitute is a life aimless and unbroken. and so we have to say to communists what george eliot might have said: be not blinded by the passions of the moment, but when you prate about your own wrongs and the sufferings of your offspring, take heed lest in the long run you make a worse time of it for your own generation, and leave a bad inheritance for your children. little thought has been taken by these altruistic reformers for the application of the doctrines they uphold. to the question how one kind of labor can be measured against another, how the labor of the artisan can be measured against the labor of the artist, how the labor of the strong can be measured against the labor of the weak, the communists can give no answer. absorbed, as they are, in the principle of equality, they have still forgotten the equality of work in the equality of pay; they have forgotten that reward, to be really equal, must be proportionate to effort; and they and all socialists have forgotten that we cannot make an arithmetic of human thought and feeling; and that for all our crude attempts to balance recompense against toil, for all our crude attempts to determine the relative severity of different kinds of toil, for all our crude attempts to determine the relative strain on different persons of the same kind of toil, yet not only will the ratio, dealing, as it does, with our subjective feelings, be a blundering one, but a system based upon it will involve inequalities greater, because more insidious, than those of the present system it would discard. instances, indeed, are not wanting to substantiate the claim that communism, by unduly exalting our altruistic impulses, proceeds upon a false psychological basis. yet if an instance is to be chosen, it would be hard to find one more suggestive than that afforded by the efforts of robert owen. the year 1824 saw the rise of owen's little community of new harmony, and the year of 1828 saw the community's final disruption. individuals had appropriated to themselves the property designed for all; and even owen, who had given to the enterprise his money and his life, was obliged to admit that men were not yet fitted for the communistic stage, and that the moment of transition from individualism to communism had not yet arrived. men trained under the old system, with its eager rivalry, its selfish interests, could not quite yet enter into the spirit of self-renunciation that communism demands. and owen, therefore, was led to put his trust in education as the great moulder of the minds of men. through this agency, he hoped, the eager rivalry, the selfish interests, the sordid love of gain, might be lost in higher, purer, more disinterested ends; and, animated by that hope-the hope that in the fullness of time another new harmony, free from contention and the disappointments of the old one, might serve to immortalize his name-animated by that hope, owen passed the last thirty years of his life; and with that hope still before his eyes he died. but years now have passed since owen lived; the second new harmony has not yet been seen; the so-called rational system of education has not yet transformed the impulses or the aims of men; and the communist of today, with a history of two thousand years of failure behind him, in the same pathetic confidence still looks for the realization of his dreams to the communism of the future. and yet, granting that communism were practicable, granting that owen's hopes had some prospect of fulfillment, the doctrine still embodies evils that must make it forever inexpedient. the readers of mr. matthew arnold's works must have noticed the emphasis with which he dwells on the instinct of expansion as a factor in human progress. it is the refutation alike of communism and socialism that they thwart the instinct of expansion; that they substitute for individual energy the energy of the government; that they substitute for human personality the blind, mechanical power of the state. the one system, as the other, marks the end of individualism. the one system, as the other, would make each man the image of his neighbor. the one system, as the other, would hold back the progressive, and, by uniformity of reward, gain uniformity of type. i can look forward to no blissful prospect for a race of men that, under the dominion of the state, at the cost of all freedom of action, at the cost, indeed, of their own true selves, shall enjoy, if one will, a fair abundance of the material blessings of life. some matthew arnold of the future would inevitably say of them in phase like that applied to the puritans of old: "they entered the prison of socialism and had the key turned upon their spirit there for hundreds of years." into that prison of socialism, with broken enterprise and broken energy, as serfs under the mastery of the state, while human personality is preferred to unreasoning mechanism, mankind must hesitate to step. when they shall once have entered within it, when the key shall have been turned upon their spirit and have confined them in narrower straits than even puritanism could have done, it will be left for them to find, in their blind obedience and passive submission, the recompense for the singleness of character, the foresight, and the energy, that they have left behind them. in almost every phase of life, this doctrine of political altruists is equally impracticable and pernicious. in its social results, it involves the substitution of the community in the family's present position. in its political aspects, it involves the absolute dominion of the state over the actions and property of its subjects. thus, though claiming to be an exaltation of the so-called natural rights of liberty and equality, it is in reality their emphatic debasement. it teaches that thoughtless docility is a recompense for stunted enterprise. it magnifies material good at the cost of every rational endowment. it inculcates a self-denial that must result in dwarfing the individual to a mere instrument in the hands of the state for the benefit of his fellows. no such organization of society-no organization that fails to take note of the fact that man must have scope for the exercise and development of his faculties-no such organization of society can ever reach a permanent success. however beneficent its motives, the hypothesis with which it starts can never be realized. the aphorism of emerson, "churches have been built, not upon principles, but upon tropes," is as true in the field of politics as it is in the field of religion. in a like figurative spirit, the followers of communism have reared their edifice; and, looking back upon the finished structure, seeking to discern the base on which it rests, the critic finds, not principles, but tropes. the builders have appealed to a future that has no warrant in the past; and fixing their gaze upon the distant dreamland, captivated by the vision there beheld, entranced by its ideal effulgence, their eyes were blinded to the real conditions of the human problem they had set before them. their enemies have not been slow to note such weakness and mistake; and perhaps it may serve to clear up misconceptions, perhaps it may serve to lessen cant and open the way for fresh and vigorous thought, if we shall once convince ourselves that altruism cannot be the rule of life; that its logical result is the dwarfing of the individual man; and that not by the death of human personality can we hope to banish the evils of our day, and to realize the ideal of all existence, a nobler or purer life. full text of the riot act (c. 1714-1715) typed in this february 8, 2002 by jonathan walther. the source was cap v, volume xiii, pages 142-146 of the "statutes at large" series, printed in the year 1764. also indexed as "anno primo georgeii i. stat. 2. c. 5." many sources on the internet claim the riot act was passed in 1715; according to statutes at large it was passed in 1714. the confusion may be caused by the fact that the act took _effect_ in august of 1715. this is, of course, the famous riot act that gave rise to the expression _"read them the riot act!_". cap. v. an act for preventing tumults and riotous assemblies, and for the more speedy and effectual punishing the rioters. i. whereas of late many rebellious riots and tumults have been in divers parts of this kingdom, to the disturbance of the publick peace, and the endangering of his majesty's person and government, and the same are yet continued and fomented by persons disaffected to his majesty, presuming so to do, for that the punishments provided by the laws now in being are not adequate to such heinous offences; and by such rioters his majesty and his administration have been most maliciously and falsly traduced, with an intent to raise divisions, and to alienate the affections of the people from his majesty therefore for the preventing and suppressing of such riots and tumults, and for the more speedy and effectual punishing the offenders therein; be it enacted by the king's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal and of the commons, in this present parliament assembled, and by the authority of the same, that if any persons to the number of twelve or more, being unlawfully, riotously, and tumultuously assembled together, to the disturbance of the publick peace, at any time after the last day of _july_ in the year of our lord one thousand seven hundred and fifteen, and being required or commanded by any one or more justice or justices of the peace, or by the sheriff of the county, or his under-sheriff, or by the mayor, bailiff or bailiffs, or other head-officer, or justice of the peace of any city or town corporate, where such assembly shall be, by proclamation to be made in the king's name, in the form herin after directed, to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, shall, to the number of twelve or more (notwithstanding such proclamation made) unlawfully, riotously, and tumultuously remain or continue together by the space of one hour after such command or request made by proclamation, that then such continuing together to the number of twelve or more, after such command or request made by proclamation, shall be adjudged felony without benefit of clergy, and the offenders therein shall be adjudged felons, and shall suffer death as in a case of felony without benefit of clergy. ii. and be it further enacted by the authority aforesaid, that the order and form of the proclamation that shall be made by the authority of this act, shall be as hereafter followeth (that is to say) the justice of the peace, or other person authorized by this act to make the said proclamation shall, among the said rioters, or as near to them as he can safely come, with a loud voice command, or cause to be commanded silence to be, while proclamation is making, and after that, shall openly and with loud voice make or cause to be made proclamation in these words, or like in effect: our sovereign lord the king chargeth and commandeth all persons, being assembled, immediately to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, upon the pains contained in the act made in the first year of king george, for preventing tumults and riotous assemblies. god save the king. and every such justice and justices of the peace, sheriff, under-sheriff, mayor, bailiff, and other head-officer aforesaid, within the limits of their respective jurisdictions, are hereby authorized, impowered and required, on notice or knowledge of any such unlawful, riotous and tumultuous assembly, to resort to the place where such unlawful, riotous, and tumultuous assemblies shall be, of persons to the number of twelve or more, and there to make or cause to be made proclamation in manner aforesaid. iii. and be it further enacted by the authority aforesaid, that if such persons so unlawfully, riotously, and tumultuously assembled, or twelve or more of them, after proclamation made in manner aforesaid, shall continue together and not disperse themselves within one hour, that then it shall and may be lawful to and for every justice of the peace, sheriff, or under-sheriff of the county where such assembly shall be, and also to and for every high or petty constable, and other peace-officer within such county, and also to and for every mayor, justice of the peace, sheriff, bailiff, and other head-officer, high or petty constable, and other peace-officer of any city or town corporate where such assembly shall be, and to and for such other person and persons as shall be commanded to be assisting unto any such justice of the peace, sheriff or under-sheriff, mayor, bailiff, or other head-officer aforesaid (who are hereby authorized and impowered to command all his majesty's subjects of age and ability to be assisting to them therein) to seize and apprehend, and they are hereby required to seize and apprehend such persons so unlawfully, riotously and tumultuously continuing together after proclamation made, as aforesaid, and forthwith to carry the persons so apprehended before one or more of his majesty's justices of the peace of the county or place where such persons shall be so apprehended, in order to their being proceeded against for such their offences according to law; and that if the persons so unlawfully, riotously and tumultuously assembled, or any of them, shall happen to be killed, maimed or hurt, in the dispersing, seizing or apprehending, or endeavouring to disperse, seize or apprehend them, that then every such justice of the peace, sheriff, under-sheriff, mayor, bailiff, head-officer, high or petty constable, or other peace-officer, and all and singular persons, being aiding and assisting to them, or any of them, shall be free, discharged and indemnified, as well against the king's majesty, his heirs and successors, as against all and every other person and persons, of, for, or concerning the killing, maiming, or hurting of any such person or persons so unlawfully, riotously and tumultuously assembled, that shall happen to be so killed, maimed or hurt, as aforesaid. iv. and be it further enacted by the authority aforesaid, that if any persons unlawfully, riotously and tumultuously assembled together, to the disturbance of the publick peace, shall unlawfully, and with force demolish or pull down, or begin to demolish or pull down any church or chapel, or any building for religious worship certified and registred according to the statute made in the first year of the reign of the late king _william_ and queen _mary_, intituled, _an act for exempting their majesty's protestant subjects dissenting from the church of_ england _from the penalties of certain laws_, or any dwelling-house, barn, stable, or other out-house, that then every such demolishing, or pulling down, or beginning to demolish, or pull down, shall be adjudged felony without benefit of clergy, and the offenders therein shall be adjudged felons, and shall suffer death as in case of felony, without benefit of clergy. v. provided always, and be it further enacted by the authority aforesaid, that if any person or persons do, or shall, with force and arms, wilfully and knowingly oppose, obstruct, or in any manner wilfully and knowingly lett, hinder, or hurt any person or persons that shall begin to proclaim, or go to proclaim according to the proclamation hereby directed to be made, whereby such proclamation shall not be made, that then every such apposing, obstructing, letting, hindering or hurting such person or persons, so beginning or going to make such proclamation, as aforesaid, shall be adjudged felony without benefit of clergy, and the offenders therein shall be adjudged felons, and shall suffer death as in case of felony, without benefit of clergy; and that also every such person or persons so being unlawfully, riotously and tumultuously assembled, to the number of twelve, as aforesaid, or more, to whom proclamation should or ought to have been made if the same had not been hindred, as aforesaid, shall likewise, in case they or any of them, to the number of twelve or more, shall continue together, and not disperse themselves within one hour after such lett or hindrance so made, having knowledge of such lett or hindrance so made, shall be adjudged felons, and shall suffer death as in case of felony, without benefit of clergy. vi. and be it further enacted by the authority aforesaid, that if after the said last day of _july_ one thousand seven hundred and fifteen, any such church or chapel, or any such building for religious worship, or any such dwelling-house, barn, stable, or other out-house, shall be demolished or pulled down wholly, or in part, by any persons so unlawfully, riotously and tumultuously assembled, that then, in case such church, chapel, building for religious worship, dwelling-house, barn, stable, or out-house, shall be out of any city or town, that is either a county of itself, or is not within any hundred, that then the inhabitants of the hundred in which such damage shall be done, shall be liable to yield damages to the person or persons injured and damnified by such demolishing or pulling down wholly or in part; and such damages shall and may be recovered by action to be brought in any of his majesty's courts of record at _westminster_, (wherein no effoin, protection or wager of law, or any imparlance shall be allowed) by the person or persons damnified thereby, against any two or more of the inhabitants of such hundred, such action for damages to any church or chapel to be brought in the name of the rector, vicar or curate of such church or chapel that shall be so damnified, in trust for applying the damages to be recovered in rebuilding or repairing such church or chapel; and that judgment being given for the plaintiff or plaintiffs in such action, the damages so to be recovered shall, at the request of such plaintiff or plaintiffs, his or their executors or administrators, be raised and levied on the inhabitants of such hundred, and paid to such plaintiff or plaintiffs, in such manner and form, and by such ways and means, as are provided by the statute made in the seven and twentieth year of the reign of queen _elizabeth_, for reimbursing the person or persons on whom any money recovered against any hundred by any party robbed, shall be levied: and in case any such church, chapel, building for religious worship, dwelling-house, barn, stable, or out-house so damnified, shall be in any city or town that is either a county of itself, or is not within any hundred, that then such damages shall and may be recovered by action to be brought in manner aforesaid (where no effoin, protection or wager of law, or any imparlance shall be allowed) against two or more inhabitants of such city or town; and judgment being given for the plaintiff or plaintiffs in such action, the damages so to be recovered shall, at the request of such plaintiff or plaintiffs, his or their executors or administrators, made to the justices of the peace of such city or town at any quarter-sessions to be holden for the said city or town, be raised and levied on the inhabitants of such city or town, and paid to such plaintiff or plaintiffs, in such manner and form, and by such ways and means, as are provided by the said statute made in the seven and twentieth year of the reign of queen _elizabeth_, for reimbursing the person or persons on whom any money recovered against any hundred by any party robbed, shall be levied. vii. and be it further enacted by the authority aforesaid, that this act shall be openly read at every quarter-session, and at every leet or law-day. viii. provided always, that no person or persons shall be prosecuted by virtue of this act, for any offence or offences committed contrary to the same, unless such prosecution be commenced within twelve months after the offence committed. ix. and be it further enacted by the authority aforesaid, that the sheriffs and their deputies, stewards and their deputies, bailies of regalities and their deputies, magistrates of royal boroughs, and all other inferior judges and magistrates, and also all high and petty constables, or other peace-officers of any county, stewartry, city or town, within that part of _great britain_ called _scotland_, shall have the same powers and authority for putting this present act in execution within _scotland_, as the justices of the peace and other magistrates aforesaid, respectively have by virtue of this act, within and for the other parts of this kingdom; and that all and every person and persons who shall at any time be convicted of any the offences aforementioned, within that part of _great britain_ called _scotland_, shall for every such offence incur and suffer the pain of death, and confiscation of moveables: and also that all prosecutions for repairing the damages of any church or chapel, or any building for religious worship, or any dwelling-house, barn, stable or out-house, which shall be demolished or pulled down in whole or in part, within _scotland_, by any persons unlawfully, riotously or tumultuously assembled, shall and may be recovered by summar action, at the instance of the party aggrieved, his or her heirs or executors, against the county, stewartry, city or borough respectively, where such disorders shall happen, the magistrates being summoned in the ordinary form, and the several counties and stewartries called by edictal citation at the market-cross of the head borough of such county or stewartry respectively, and that in general, without mentioning their names and designations. x. provided, and it is hereby declared, that this act shall extend to all places for religious worship, in that part of _great britain_ called _scotland_, which are tolerated by law, and where his majesty king _george_, the prince and princess of _wales_, and their issue, are prayed for in express words. the path of the law by oliver wendell holmes, jr. 10 harvard law review 457 (1897) when we study law we are not studying a mystery but a well-known profession. we are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. the reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. people want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. the object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts. the means of the study are a body of reports, of treatises, and of statutes, in this country and in england, extending back for six hundred years, and now increasing annually by hundreds. in these sibylline leaves are gathered the scattered prophecies of the past upon the cases in which the axe will fall. these are what properly have been called the oracles of the law. far the most important and pretty nearly the whole meaning of every new effort of legal thought is to make these prophecies more precise, and to generalize them into a thoroughly connected system. the process is one, from a lawyer's statement of a case, eliminating as it does all the dramatic elements with which his client's story has clothed it, and retaining only the facts of legal import, up to the final analyses and abstract universals of theoretic jurisprudence. the reason why a lawyer does not mention that his client wore a white hat when he made a contract, while mrs. quickly would be sure to dwell upon it along with the parcel gilt goblet and the sea-coal fire, is that he foresees that the public force will act in the same way whatever his client had upon his head. it is to make the prophecies easier to be remembered and to be understood that the teachings of the decisions of the past are put into general propositions and gathered into textbooks, or that statutes are passed in a general form. the primary rights and duties with which jurisprudence busies itself again are nothing but prophecies. one of the many evil effects of the confusion between legal and moral ideas, about which i shall have something to say in a moment, is that theory is apt to get the cart before the horse, and consider the right or the duty as something existing apart from and independent of the consequences of its breach, to which certain sanctions are added afterward. but, as i shall try to show, a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; and so of a legal right. the number of our predictions when generalized and reduced to a system is not unmanageably large. they present themselves as a finite body of dogma which may be mastered within a reasonable time. it is a great mistake to be frightened by the ever-increasing number of reports. the reports of a given jurisdiction in the course of a generation take up pretty much the whole body of the law, and restate it from the present point of view. we could reconstruct the corpus from them if all that went before were burned. the use of the earlier reports is mainly historical, a use about which i shall have something to say before i have finished. i wish, if i can, to lay down some first principles for the study of this body of dogma or systematized prediction which we call the law, for men who want to use it as the instrument of their business to enable them to prophesy in their turn, and, as bearing upon the study, i wish to point out an ideal which as yet our law has not attained. the first thing for a businesslike understanding of the matter is to understand its limits, and therefore i think it desirable at once to point out and dispel a confusion between morality and law, which sometimes rises to the height of conscious theory, and more often and indeed constantly is making trouble in detail without reaching the point of consciousness. you can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. a man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can. i take it for granted that no hearer of mine will misinterpret what i have to say as the language of cynicism. the law is the witness and external deposit of our moral life. its history is the history of the moral development of the race. the practice of it, in spite of popular jests, tends to make good citizens and good men. when i emphasize the difference between law and morals i do so with reference to a single end, that of learning and understanding the law. for that purpose you must definitely master its specific marks, and it is for that that i ask you for the moment to imagine yourselves indifferent to other and greater things. i do not say that there is not a wider point of view from which the distinction between law and morals becomes of secondary or no importance, as all mathematical distinctions vanish in presence of the infinite. but i do say that that distinction is of the first importance for the object which we are here to consider--a right study and mastery of the law as a business with well understood limits, a body of dogma enclosed within definite lines. i have just shown the practical reason for saying so. if you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience. the theoretical importance of the distinction is no less, if you would reason on your subject aright. the law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds. the law talks about rights, and duties, and malice, and intent, and negligence, and so forth, and nothing is easier, or, i may say, more common in legal reasoning, than to take these words in their moral sense, at some state of the argument, and so to drop into fallacy. for instance, when we speak of the rights of man in a moral sense, we mean to mark the limits of interference with individual freedom which we think are prescribed by conscience, or by our ideal, however reached. yet it is certain that many laws have been enforced in the past, and it is likely that some are enforced now, which are condemned by the most enlightened opinion of the time, or which at all events pass the limit of interference, as many consciences would draw it. manifestly, therefore, nothing but confusion of thought can result from assuming that the rights of man in a moral sense are equally rights in the sense of the constitution and the law. no doubt simple and extreme cases can be put of imaginable laws which the statute-making power would not dare to enact, even in the absence of written constitutional prohibitions, because the community would rise in rebellion and fight; and this gives some plausibility to the proposition that the law, if not a part of morality, is limited by it. but this limit of power is not coextensive with any system of morals. for the most part it falls far within the lines of any such system, and in some cases may extend beyond them, for reasons drawn from the habits of a particular people at a particular time. i once heard the late professor agassiz say that a german population would rise if you added two cents to the price of a glass of beer. a statute in such a case would be empty words, not because it was wrong, but because it could not be enforced. no one will deny that wrong statutes can be and are enforced, and we would not all agree as to which were the wrong ones. the confusion with which i am dealing besets confessedly legal conceptions. take the fundamental question, what constitutes the law? you will find some text writers telling you that it is something different from what is decided by the courts of massachusetts or england, that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions. but if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the massachusetts or english courts are likely to do in fact. i am much of this mind. the prophecies of what the courts will do in fact, and nothing more pretentious, are what i mean by the law. take again a notion which as popularly understood is the widest conception which the law contains--the notion of legal duty, to which already i have referred. we fill the word with all the content which we draw from morals. but what does it mean to a bad man? mainly, and in the first place, a prophecy that if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money. but from his point of view, what is the difference between being fined and taxed a certain sum for doing a certain thing? that his point of view is the test of legal principles is proven by the many discussions which have arisen in the courts on the very question whether a given statutory liability is a penalty or a tax. on the answer to this question depends the decision whether conduct is legally wrong or right, and also whether a man is under compulsion or free. leaving the criminal law on one side, what is the difference between the liability under the mill acts or statutes authorizing a taking by eminent domain and the liability for what we call a wrongful conversion of property where restoration is out of the question. in both cases the party taking another man's property has to pay its fair value as assessed by a jury, and no more. what significance is there in calling one taking right and another wrong from the point of view of the law? it does not matter, so far as the given consequence, the compulsory payment, is concerned, whether the act to which it is attached is described in terms of praise or in terms of blame, or whether the law purports to prohibit it or to allow it. if it matters at all, still speaking from the bad man's point of view, it must be because in one case and not in the other some further disadvantages, or at least some further consequences, are attached to the act by law. the only other disadvantages thus attached to it which i ever have been able to think of are to be found in two somewhat insignificant legal doctrines, both of which might be abolished without much disturbance. one is, that a contract to do a prohibited act is unlawful, and the other, that, if one of two or more joint wrongdoers has to pay all the damages, he cannot recover contribution from his fellows. and that i believe is all. you see how the vague circumference of the notion of duty shrinks and at the same time grows more precise when we wash it with cynical acid and expel everything except the object of our study, the operations of the law. nowhere is the confusion between legal and moral ideas more manifest than in the law of contract. among other things, here again the so-called primary rights and duties are invested with a mystic significance beyond what can be assigned and explained. the duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it--and nothing else. if you commit a tort, you are liable to pay a compensatory sum. if you commit a contract, you are liable to pay a compensatory sum unless the promised event comes to pass, and that is all the difference. but such a mode of looking at the matter stinks in the nostrils of those who think it advantageous to get as much ethics into the law as they can. it was good enough for lord coke, however, and here, as in many others cases, i am content to abide with him. in bromage v. genning, a prohibition was sought in the kings' bench against a suit in the marches of wales for the specific performance of a covenant to grant a lease, and coke said that it would subvert the intention of the covenantor, since he intends it to be at his election either to lose the damages or to make the lease. sergeant harra for the plaintiff confessed that he moved the matter against his conscience, and a prohibition was granted. this goes further than we should go now, but it shows what i venture to say has been the common law point of view from the beginning, although mr. harriman, in his very able little book upon contracts has been misled, as i humbly think, to a different conclusion. i have spoken only of the common law, because there are some cases in which a logical justification can be found for speaking of civil liabilities as imposing duties in an intelligible sense. these are the relatively few in which equity will grant an injunction, and will enforce it by putting the defendant in prison or otherwise punishing him unless he complies with the order of the court. but i hardly think it advisable to shape general theory from the exception, and i think it would be better to cease troubling ourselves about primary rights and sanctions altogether, than to describe our prophecies concerning the liabilities commonly imposed by the law in those inappropriate terms. i mentioned, as other examples of the use by the law of words drawn from morals, malice, intent, and negligence. it is enough to take malice as it is used in the law of civil liability for wrongs what we lawyers call the law of torts--to show that it means something different in law from what it means in morals, and also to show how the difference has been obscured by giving to principles which have little or nothing to do with each other the same name. three hundred years ago a parson preached a sermon and told a story out of fox's book of martyrs of a man who had assisted at the torture of one of the saints, and afterward died, suffering compensatory inward torment. it happened that fox was wrong. the man was alive and chanced to hear the sermon, and thereupon he sued the parson. chief justice wray instructed the jury that the defendant was not liable, because the story was told innocently, without malice. he took malice in the moral sense, as importing a malevolent motive. but nowadays no one doubts that a man may be liable, without any malevolent motive at all, for false statements manifestly calculated to inflict temporal damage. in stating the case in pleading, we still should call the defendant's conduct malicious; but, in my opinion at least, the word means nothing about motives, or even about the defendant's attitude toward the future, but only signifies that the tendency of his conduct under known circumstances was very plainly to cause the plaintiff temporal harm. in the law of contract the use of moral phraseology led to equal confusion, as i have shown in part already, but only in part. morals deal with the actual internal state of the individual's mind, what he actually intends. from the time of the romans down to now, this mode of dealing has affected the language of the law as to contract, and the language used has reacted upon the thought. we talk about a contract as a meeting of the minds of the parties, and thence it is inferred in various cases that there is no contract because their minds have not met; that is, because they have intended different things or because one party has not known of the assent of the other. yet nothing is more certain than that parties may be bound by a contract to things which neither of them intended, and when one does not know of the other's assent. suppose a contract is executed in due form and in writing to deliver a lecture, mentioning no time. one of the parties thinks that the promise will be construed to mean at once, within a week. the other thinks that it means when he is ready. the court says that it means within a reasonable time. the parties are bound by the contract as it is interpreted by the court, yet neither of them meant what the court declares that they have said. in my opinion no one will understand the true theory of contract or be able even to discuss some fundamental questions intelligently until he has understood that all contracts are formal, that the making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs--not on the parties' having meant the same thing but on their having said the same thing. furthermore, as the signs may be addressed to one sense or another--to sight or to hearing--on the nature of the sign will depend the moment when the contract is made. if the sign is tangible, for instance, a letter, the contract is made when the letter of acceptance is delivered. if it is necessary that the minds of the parties meet, there will be no contract until the acceptance can be read; none, for example, if the acceptance be snatched from the hand of the offerer by a third person. this is not the time to work out a theory in detail, or to answer many obvious doubts and questions which are suggested by these general views. i know of none which are not easy to answer, but what i am trying to do now is only by a series of hints to throw some light on the narrow path of legal doctrine, and upon two pitfalls which, as it seems to me, lie perilously near to it. of the first of these i have said enough. i hope that my illustrations have shown the danger, both to speculation and to practice, of confounding morality with law, and the trap which legal language lays for us on that side of our way. for my own part, i often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law. we should lose the fossil records of a good deal of history and the majesty got from ethical associations, but by ridding ourselves of an unnecessary confusion we should gain very much in the clearness of our thought. so much for the limits of the law. the next thing which i wish to consider is what are the forces which determine its content and its growth. you may assume, with hobbes and bentham and austin, that all law emanates from the sovereign, even when the first human beings to enunciate it are the judges, or you may think that law is the voice of the zeitgeist, or what you like. it is all one to my present purpose. even if every decision required the sanction of an emperor with despotic power and a whimsical turn of mind, we should be interested none the less, still with a view to prediction, in discovering some order, some rational explanation, and some principle of growth for the rules which he laid down. in every system there are such explanations and principles to be found. it is with regard to them that a second fallacy comes in, which i think it important to expose. the fallacy to which i refer is the notion that the only force at work in the development of the law is logic. in the broadest sense, indeed, that notion would be true. the postulate on which we think about the universe is that there is a fixed quantitative relation between every phenomenon and its antecedents and consequents. if there is such a thing as a phenomenon without these fixed quantitative relations, it is a miracle. it is outside the law of cause and effect, and as such transcends our power of thought, or at least is something to or from which we cannot reason. the condition of our thinking about the universe is that it is capable of being thought about rationally, or, in other words, that every part of it is effect and cause in the same sense in which those parts are with which we are most familiar. so in the broadest sense it is true that the law is a logical development, like everything else. the danger of which i speak is not the admission that the principles governing other phenomena also govern the law, but the notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms of conduct. this is the natural error of the schools, but it is not confined to them. i once heard a very eminent judge say that he never let a decision go until he was absolutely sure that it was right. so judicial dissent often is blamed, as if it meant simply that one side or the other were not doing their sums right, and if they would take more trouble, agreement inevitably would come. this mode of thinking is entirely natural. the training of lawyers is a training in logic. the processes of analogy, discrimination, and deduction are those in which they are most at home. the language of judicial decision is mainly the language of logic. and the logical method and form flatter that longing for certainty and for repose which is in every human mind. but certainty generally is illusion, and repose is not the destiny of man. behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. you can give any conclusion a logical form. you always can imply a condition in a contract. but why do you imply it? it is because of some belief as to the practice of the community or of a class, or because of some opinion as to policy, or, in short, because of some attitude of yours upon a matter not capable of exact quantitative measurement, and therefore not capable of founding exact logical conclusions. such matters really are battle grounds where the means do not exist for the determinations that shall be good for all time, and where the decision can do no more than embody the preference of a given body in a given time and place. we do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind. no concrete proposition is self evident, no matter how ready we may be to accept it, not even mr. herbert spencer's "every man has a right to do what he wills, provided he interferes not with a like right on the part of his neighbors." why is a false and injurious statement privileged, if it is made honestly in giving information about a servant? it is because it has been thought more important that information should be given freely, than that a man should be protected from what under other circumstances would be an actionable wrong. why is a man at liberty to set up a business which he knows will ruin his neighborhood? it is because the public good is supposed to be best subserved by free competition. obviously such judgments of relative importance may vary in different times and places. why does a judge instruct a jury that an employer is not liable to an employee for an injury received in the course of his employment unless he is negligent, and why do the jury generally find for the plaintiff if the case is allowed to go to them? it is because the traditional policy of our law is to confine liability to cases where a prudent man might have foreseen the injury, or at least the danger, while the inclination of a very large part of the community is to make certain classes of persons insure the safety of those with whom they deal. since the last words were written, i have seen the requirement of such insurance put forth as part of the programme of one of the best known labor organizations. there is a concealed, half conscious battle on the question of legislative policy, and if any one thinks that it can be settled deductively, or once for all, i only can say that i think he is theoretically wrong, and that i am certain that his conclusion will not be accepted in practice semper ubique et ab omnibus. indeed, i think that even now our theory upon this matter is open to reconsideration, although i am not prepared to say how i should decide if a reconsideration were proposed. our law of torts comes from the old days of isolated, ungeneralized wrongs, assaults, slanders, and the like, where the damages might be taken to lie where they fell by legal judgment. but the torts with which our courts are kept busy today are mainly the incidents of certain well known businesses. they are injuries to person or property by railroads, factories, and the like. the liability for them is estimated, and sooner or later goes into the price paid by the public. the public really pays the damages, and the question of liability, if pressed far enough, is really a question how far it is desirable that the public should insure the safety of one whose work it uses. it might be said that in such cases the chance of a jury finding for the defendant is merely a chance, once in a while rather arbitrarily interrupting the regular course of recovery, most likely in the case of an unusually conscientious plaintiff, and therefore better done away with. on the other hand, the economic value even of a life to the community can be estimated, and no recovery, it may be said, ought to go beyond that amount. it is conceivable that some day in certain cases we may find ourselves imitating, on a higher plane, the tariff for life and limb which we see in the leges barbarorum. i think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. the duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious, as i have said. when socialism first began to be talked about, the comfortable classes of the community were a good deal frightened. i suspect that this fear has influenced judicial action both here and in england, yet it is certain that it is not a conscious factor in the decisions to which i refer. i think that something similar has led people who no longer hope to control the legislatures to look to the courts as expounders of the constitutions, and that in some courts new principles have been discovered outside the bodies of those instruments, which may be generalized into acceptance of the economic doctrines which prevailed about fifty years ago, and a wholesale prohibition of what a tribunal of lawyers does not think about right. i cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions. so much for the fallacy of logical form. now let us consider the present condition of the law as a subject for study, and the ideal toward which it tends. we still are far from the point of view which i desire to see reached. no one has reached it or can reach it as yet. we are only at the beginning of a philosophical reaction, and of a reconsideration of the worth of doctrines which for the most part still are taken for granted without any deliberate, conscious, and systematic questioning of their grounds. the development of our law has gone on for nearly a thousand years, like the development of a plant, each generation taking the inevitable next step, mind, like matter, simply obeying a law of spontaneous growth. it is perfectly natural and right that it should have been so. imitation is a necessity of human nature, as has been illustrated by a remarkable french writer, m. tard, in an admirable book, les lois de l'imitation. most of the things we do, we do for no better reason than that our fathers have done them or that our neighbors do them, and the same is true of a larger part than we suspect of what we think. the reason is a good one, because our short life gives us no time for a better, but it is not the best. it does not follow, because we all are compelled to take on faith at second hand most of the rules on which we base our action and our thought, that each of us may not try to set some corner of his world in the order of reason, or that all of us collectively should not aspire to carry reason as far as it will go throughout the whole domain. in regard to the law, it is true, no doubt, that an evolutionist will hesitate to affirm universal validity for his social ideals, or for the principles which he thinks should be embodied in legislation. he is content if he can prove them best for here and now. he may be ready to admit that he knows nothing about an absolute best in the cosmos, and even that he knows next to nothing about a permanent best for men. still it is true that a body of law is more rational and more civilized when every rule it contains is referred articulately and definitely to an end which it subserves, and when the grounds for desiring that end are stated or are ready to be stated in words. at present, in very many cases, if we want to know why a rule of law has taken its particular shape, and more or less if we want to know why it exists at all, we go to tradition. we follow it into the year books, and perhaps beyond them to the customs of the salian franks, and somewhere in the past, in the german forests, in the needs of norman kings, in the assumptions of a dominant class, in the absence of generalized ideas, we find out the practical motive for what now best is justified by the mere fact of its acceptance and that men are accustomed to it. the rational study of law is still to a large extent the study of history. history must be a part of the study, because without it we cannot know the precise scope of rules which it is our business to know. it is a part of the rational study, because it is the first step toward an enlightened scepticism, that is, towards a deliberate reconsideration of the worth of those rules. when you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and see just what is his strength. but to get him out is only the first step. the next is either to kill him, or to tame him and make him a useful animal. for the rational study of the law the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. it is revolting to have no better reason for a rule of law than that so it was laid down in the time of henry iv. it is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past. i am thinking of the technical rule as to trespass ab initio, as it is called, which i attempted to explain in a recent massachusetts case. let me take an illustration, which can be stated in a few words, to show how the social end which is aimed at by a rule of law is obscured and only partially attained in consequence of the fact that the rule owes its form to a gradual historical development, instead of being reshaped as a whole, with conscious articulate reference to the end in view. we think it desirable to prevent one man's property being misappropriated by another, and so we make larceny a crime. the evil is the same whether the misappropriation is made by a man into whose hands the owner has put the property, or by one who wrongfully takes it away. but primitive law in its weakness did not get much beyond an effort to prevent violence, and very naturally made a wrongful taking, a trespass, part of its definition of the crime. in modern times the judges enlarged the definition a little by holding that, if the wrong-doer gets possession by a trick or device, the crime is committed. this really was giving up the requirement of trespass, and it would have been more logical, as well as truer to the present object of the law, to abandon the requirement altogether. that, however, would have seemed too bold, and was left to statute. statutes were passed making embezzlement a crime. but the force of tradition caused the crime of embezzlement to be regarded as so far distinct from larceny that to this day, in some jurisdictions at least, a slip corner is kept open for thieves to contend, if indicted for larceny, that they should have been indicted for embezzlement, and if indicted for embezzlement, that they should have been indicted for larceny, and to escape on that ground. far more fundamental questions still await a better answer than that we do as our fathers have done. what have we better than a blind guess to show that the criminal law in its present form does more good than harm? i do not stop to refer to the effect which it has had in degrading prisoners and in plunging them further into crime, or to the question whether fine and imprisonment do not fall more heavily on a criminal's wife and children than on himself. i have in mind more far-reaching questions. does punishment deter? do we deal with criminals on proper principles? a modern school of continental criminalists plumes itself on the formula, first suggested, it is said, by gall, that we must consider the criminal rather than the crime. the formula does not carry us very far, but the inquiries which have been started look toward an answer of my questions based on science for the first time. if the typical criminal is a degenerate, bound to swindle or to murder by as deep seated an organic necessity as that which makes the rattlesnake bite, it is idle to talk of deterring him by the classical method of imprisonment. he must be got rid of; he cannot be improved, or frightened out of his structural reaction. if, on the other hand, crime, like normal human conduct, is mainly a matter of imitation, punishment fairly may be expected to help to keep it out of fashion. the study of criminals has been thought by some well known men of science to sustain the former hypothesis. the statistics of the relative increase of crime in crowded places like large cities, where example has the greatest chance to work, and in less populated parts, where the contagion spreads more slowly, have been used with great force in favor of the latter view. but there is weighty authority for the belief that, however this may be, "not the nature of the crime, but the dangerousness of the criminal, constitutes the only reasonable legal criterion to guide the inevitable social reaction against the criminal." the impediments to rational generalization, which i illustrated from the law of larceny, are shown in the other branches of the law, as well as in that of crime. take the law of tort or civil liability for damages apart from contract and the like. is there any general theory of such liability, or are the cases in which it exists simply to be enumerated, and to be explained each on its special ground, as is easy to believe from the fact that the right of action for certain well known classes of wrongs like trespass or slander has its special history for each class? i think that the law regards the infliction of temporal damage by a responsible person as actionable, if under the circumstances known to him the danger of his act is manifest according to common experience, or according to his own experience if it is more than common, except in cases where upon special grounds of policy the law refuses to protect the plaintiff or grants a privilege to the defendant. i think that commonly malice, intent, and negligence mean only that the danger was manifest to a greater or less degree, under the circumstances known to the actor, although in some cases of privilege malice may mean an actual malevolent motive, and such a motive may take away a permission knowingly to inflict harm, which otherwise would be granted on this or that ground of dominant public good. but when i stated my view to a very eminent english judge the other day, he said, "you are discussing what the law ought to be; as the law is, you must show a right. a man is not liable for negligence unless he is subject to a duty." if our difference was more than a difference in words, or with regard to the proportion between the exceptions and the rule, then, in his opinion, liability for an act cannot be referred to the manifest tendency of the act to cause temporal damage in general as a sufficient explanation, but must be referred to the special nature of the damage, or must be derived from some special circumstances outside of the tendency of the act, for which no generalized explanation exists. i think that such a view is wrong, but it is familiar, and i dare say generally is accepted in england. everywhere the basis of principle is tradition, to such an extent that we even are in danger of making the role of history more important than it is. the other day professor ames wrote a learned article to show, among other things, that the common law did not recognize the defence of fraud in actions upon specialties, and the moral might seem to be that the personal character of that defence is due to its equitable origin. but if, as i said, all contracts are formal, the difference is not merely historical, but theoretic, between defects of form which prevent a contract from being made, and mistaken motives which manifestly could not be considered in any system that we should call rational except against one who was privy to those motives. it is not confined to specialties, but is of universal application. i ought to add that i do not suppose that mr. ames would disagree with what i suggest. however, if we consider the law of contract, we find it full of history. the distinctions between debt, covenant, and assumpsit are merely historical. the classification of certain obligations to pay money, imposed by the law irrespective of any bargain as quasi contracts, is merely historical. the doctrine of consideration is merely historical. the effect given to a seal is to be explained by history alone. consideration is a mere form. is it a useful form? if so, why should it not be required in all contracts? a seal is a mere form, and is vanishing in the scroll and in enactments that a consideration must be given, seal or no seal. why should any merely historical distinction be allowed to affect the rights and obligations of business men? since i wrote this discourse i have come on a very good example of the way in which tradition not only overrides rational policy, but overrides it after first having been misunderstood and having been given a new and broader scope than it had when it had a meaning. it is the settled law of england that a material alteration of a written contract by a party avoids it as against him. the doctrine is contrary to the general tendency of the law. we do not tell a jury that if a man ever has lied in one particular he is to be presumed to lie in all. even if a man has tried to defraud, it seems no sufficient reason for preventing him from proving the truth. objections of like nature in general go to the weight, not to the admissibility, of evidence. moreover, this rule is irrespective of fraud, and is not confined to evidence. it is not merely that you cannot use the writing, but that the contract is at an end. what does this mean? the existence of a written contract depends on the fact that the offerer and offeree have interchanged their written expressions, not on the continued existence of those expressions. but in the case of a bond, the primitive notion was different. the contract was inseparable from the parchment. if a stranger destroyed it, or tore off the seal, or altered it, the obligee count not recover, however free from fault, because the defendant's contract, that is, the actual tangible bond which he had sealed, could not be produced in the form in which it bound him. about a hundred years ago lord kenyon undertook to use his reason on the tradition, as he sometimes did to the detriment of the law, and, not understanding it, said he could see no reason why what was true of a bond should not be true of other contracts. his decision happened to be right, as it concerned a promissory note, where again the common law regarded the contract as inseparable from the paper on which it was written, but the reasoning was general, and soon was extended to other written contracts, and various absurd and unreal grounds of policy were invented to account for the enlarged rule. i trust that no one will understand me to be speaking with disrespect of the law, because i criticise it so freely. i venerate the law, and especially our system of law, as one of the vastest products of the human mind. no one knows better than i do the countless number of great intellects that have spent themselves in making some addition or improvement, the greatest of which is trifling when compared with the mighty whole. it has the final title to respect that it exists, that it is not a hegelian dream, but a part of the lives of men. but one may criticise even what one reveres. law is the business to which my life is devoted, and i should show less than devotion if i did not do what in me lies to improve it, and, when i perceive what seems to me the ideal of its future, if i hesitated to point it out and to press toward it with all my heart. perhaps i have said enough to show the part which the study of history necessarily plays in the intelligent study of the law as it is today. in the teaching of this school and at cambridge it is in no danger of being undervalued. mr. bigelow here and mr. ames and mr. thayer there have made important contributions which will not be forgotten, and in england the recent history of early english law by sir frederick pollock and mr. maitland has lent the subject an almost deceptive charm. we must beware of the pitfall of antiquarianism, and must remember that for our purposes our only interest in the past is for the light it throws upon the present. i look forward to a time when the part played by history in the explanation of dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them. as a step toward that ideal it seems to me that every lawyer ought to seek an understanding of economics. the present divorce between the schools of political economy and law seems to me an evidence of how much progress in philosophical study still remains to be made. in the present state of political economy, indeed, we come again upon history on a larger scale, but there we are called on to consider and weigh the ends of legislation, the means of attaining them, and the cost. we learn that for everything we have we give up something else, and we are taught to set the advantage we gain against the other advantage we lose, and to know what we are doing when we elect. there is another study which sometimes is undervalued by the practical minded, for which i wish to say a good word, although i think a good deal of pretty poor stuff goes under that name. i mean the study of what is called jurisprudence. jurisprudence, as i look at it, is simply law in its most generalized part. every effort to reduce a case to a rule is an effort of jurisprudence, although the name as used in english is confined to the broadest rules and most fundamental conceptions. one mark of a great lawyer is that he sees the application of the broadest rules. there is a story of a vermont justice of the peace before whom a suit was brought by one farmer against another for breaking a churn. the justice took time to consider, and then said that he has looked through the statutes and could find nothing about churns, and gave judgment for the defendant. the same state of mind is shown in all our common digests and textbooks. applications of rudimentary rules of contract or tort are tucked away under the head of railroads or telegraphs or go to swell treatises on historical subdivisions, such as shipping or equity, or are gathered under an arbitrary title which is thought likely to appeal to the practical mind, such as mercantile law. if a man goes into law it pays to be a master of it, and to be a master of it means to look straight through all the dramatic incidents and to discern the true basis for prophecy. therefore, it is well to have an accurate notion of what you mean by law, by a right, by a duty, by malice, intent, and negligence, by ownership, by possession, and so forth. i have in my mind cases in which the highest courts seem to me to have floundered because they had no clear ideas on some of these themes. i have illustrated their importance already. if a further illustration is wished, it may be found by reading the appendix to sir james stephen's criminal law on the subject of possession, and then turning to pollock and wright's enlightened book. sir james stephen is not the only writer whose attempts to analyze legal ideas have been confused by striving for a useless quintessence of all systems, instead of an accurate anatomy of one. the trouble with austin was that he did not know enough english law. but still it is a practical advantage to master austin, and his predecessors, hobbes and bentham, and his worthy successors, holland and pollock. sir frederick pollock's recent little book is touched with the felicity which marks all his works, and is wholly free from the perverting influence of roman models. the advice of the elders to young men is very apt to be as unreal as a list of the hundred best books. at least in my day i had my share of such counsels, and high among the unrealities i place the recommendation to study the roman law. i assume that such advice means more than collecting a few latin maxims with which to ornament the discourse--the purpose for which lord coke recommended bracton. if that is all that is wanted, the title de regulis juris antiqui can be read in an hour. i assume that, if it is well to study the roman law, it is well to study it as a working system. that means mastering a set of technicalities more difficult and less understood than our own, and studying another course of history by which even more than our own the roman law must explained. if any one doubts me, let him read keller's der romische civil process und die actionen, a treatise on the praetor's edict, muirhead's most interesting historical introduction to the private law of rome, and, to give him the best chance, sohn's admirable institutes. no. the way to gain a liberal view of your subject is not to read something else, but to get to the bottom of the subject itself. the means of doing that are, in the first place, to follow the existing body of dogma into its highest generalizations by the help of jurisprudence; next, to discover from history how it has come to be what it is; and finally, so far as you can, to consider the ends which the several rules seek to accomplish, the reasons why those ends are desired, what is given up to gain them, and whether they are worth the price. we have too little theory in the law rather than too much, especially on this final branch of study. when i was speaking of history, i mentioned larceny as an example to show how the law suffered from not having embodied in a clear form a rule which will accomplish its manifest purpose. in that case the trouble was due to the survival of forms coming from a time when a more limited purpose was entertained. let me now give an example to show the practical importance, for the decision of actual cases, of understanding the reasons of the law, by taking an example from rules which, so far as i know, never have been explained or theorized about in any adequate way. i refer to statutes of limitation and the law of prescription. the end of such rules is obvious, but what is the justification for depriving a man of his rights, a pure evil as far as it goes, in consequence of the lapse of time? sometimes the loss of evidence is referred to, but that is a secondary matter. sometimes the desirability of peace, but why is peace more desirable after twenty years than before? it is increasingly likely to come without the aid of legislation. sometimes it is said that, if a man neglects to enforce his rights, he cannot complain if, after a while, the law follows his example. now if this is all that can be said about it, you probably will decide a case i am going to put, for the plaintiff; if you take the view which i shall suggest, you possibly will decide it for the defendant. a man is sued for trespass upon land, and justifies under a right of way. he proves that he has used the way openly and adversely for twenty years, but it turns out that the plaintiff had granted a license to a person whom he reasonably supposed to be the defendant's agent, although not so in fact, and therefore had assumed that the use of the way was permissive, in which case no right would be gained. has the defendant gained a right or not? if his gaining it stands on the fault and neglect of the landowner in the ordinary sense, as seems commonly to be supposed, there has been no such neglect, and the right of way has not been acquired. but if i were the defendant's counsel, i should suggest that the foundation of the acquisition of rights by lapse of time is to be looked for in the position of the person who gains them, not in that of the loser. sir henry maine has made it fashionable to connect the archaic notion of property with prescription. but the connection is further back than the first recorded history. it is in the nature of man's mind. a thing which you have enjoyed and used as your own for a long time, whether property or an opinion, takes root in your being and cannot be torn away without your resenting the act and trying to defend yourself, however you came by it. the law can ask no better justification than the deepest instincts of man. it is only by way of reply to the suggestion that you are disappointing the former owner, that you refer to his neglect having allowed the gradual dissociation between himself and what he claims, and the gradual association of it with another. if he knows that another is doing acts which on their face show that he is on the way toward establishing such an association, i should argue that in justice to that other he was bound at his peril to find out whether the other was acting under his permission, to see that he was warned, and, if necessary, stopped. i have been speaking about the study of the law, and i have said next to nothing about what commonly is talked about in that connection--text-books and the case system, and all the machinery with which a student comes most immediately in contact. nor shall i say anything about them. theory is my subject, not practical details. the modes of teaching have been improved since my time, no doubt, but ability and industry will master the raw material with any mode. theory is the most important part of the dogma of the law, as the architect is the most important man who takes part in the building of a house. the most important improvements of the last twenty-five years are improvements in theory. it is not to be feared as unpractical, for, to the competent, it simply means going to the bottom of the subject. for the incompetent, it sometimes is true, as has been said, that an interest in general ideas means an absence of particular knowledge. i remember in army days reading of a youth who, being examined for the lowest grade and being asked a question about squadron drill, answered that he never had considered the evolutions of less than ten thousand men. but the weak and foolish must be left to their folly. the danger is that the able and practical minded should look with indifference or distrust upon ideas the connection of which with their business is remote. i heard a story, the other day, of a man who had a valet to whom he paid high wages, subject to deduction for faults. one of his deductions was, "for lack of imagination, five dollars." the lack is not confined to valets. the object of ambition, power, generally presents itself nowadays in the form of money alone. money is the most immediate form, and is a proper object of desire. "the fortune," said rachel, "is the measure of intelligence." that is a good text to waken people out of a fool's paradise. but, as hegel says, "it is in the end not the appetite, but the opinion, which has to be satisfied." to an imagination of any scope the most far-reaching form of power is not money, it is the command of ideas. if you want great examples, read mr. leslie stephen's history of english thought in the eighteenth century, and see how a hundred years after his death the abstract speculations of descartes had become a practical force controlling the conduct of men. read the works of the great german jurists, and see how much more the world is governed today by kant than by bonaparte. we cannot all be descartes or kant, but we all want happiness. and happiness, i am sure from having known many successful men, cannot be won simply by being counsel for great corporations and having an income of fifty thousand dollars. an intellect great enough to win the prize needs other food besides success. the remoter and more general aspects of the law are those which give it universal interest. it is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law. produced from scanned images of public domain material from the google books project.) _the new jersey law journal published monthly_ volume xlv february, 1922 no. 2 _some reminiscences, mostly legal_ _by hon. frederic adams, los angeles, cal._ iv. certain courts and lawyers. ever since my boyhood the drama of the courtroom has interested me more than the drama of the theatre. i well remember my introduction to litigated business. i was a youngster on a visit to boston when some one took me to a court where a patent case was on trial. i was duly impressed by the imposing personality of the judge, but my attention was soon fixed by the witness on the stand, whom i happened to know, for my father had once introduced me to him. he was professor james jay mapes, of newark, new jersey, a chemist and inventor, one of whose many activities was the manufacture of fertilizers. i had visited one of his factories, somewhere between newark and elizabeth, and was surprised to see him at boston in the rôle of a mechanical expert in a patent case. as the examination carefully proceeded i concluded, with the rashness of inexperience, that the examiner was a very dull man, for he seemed so slow to get an idea. what i then mistook for dullness i now recognize as professional skill, employed by counsel to unfold to the court and jury the details of a complex mechanism. i know now more about that case than i did then, for, rather to my surprise, i have recently found a report of it in the first volume of fisher's "patent cases," at page 108. the time was august, 1851, when i was not quite eleven years old. the courtroom was that of the circuit court of the united states for the first circuit. samuel colt was plaintiff. the massachusetts arms company was defendant. the counsel for the plaintiff were e. n. dickerson, c. l. woodbury and g. t. curtis, and for the defendant r. a. chapman, g. ashmun and rufus choate, and the judge was mr. justice levi woodbury of the supreme court of the united states, who was then testing the validity of the patent for the colt revolver. the charge is reported in full. the verdict was for the plaintiff. judge woodbury was a new hampshire man of some note, then in his sixty-second year, called by thomas h. benton "the rock of the new england democracy," who had been senator of the united states from new hampshire, and a member of the cabinets of jackson and van buren, and, on the nomination of president polk, had succeeded judge story as a member of the supreme court of the united states. the trial of the case in which i saw him was one of his last official duties, for he died in the following month. he was succeeded by benjamin r. curtis, of boston, on the nomination of president fillmore. while i was at the harvard law school in 1863-4, richard h. dana was united states district attorney at boston, and i often saw him at cambridge, where he lived. his book, "two years before the mast," was and is a favorite of mine. i suppose that i have read it twenty times, and i hope that the boys of this day read and love it. it is in a class by itself. there is, i think, not in english, and probably not in any language, another account of seafaring life written in the forecastle by one of the crew, who was also a gentleman and a scholar and master of a charming style. the veracity and spirit of the narrative have made it a classic both here and in england. in california it is particularly valued, for dana was one of the pioneers and had sailed through the golden gate on the "alert" in the winter of 1835-6, many years before the mexican war and the discovery of gold, when san francisco as yet was not. when, at the end of the visit, the good ship floated out on the tide, herds of deer came down to the northerly shore to watch the unusual sight. dana left college and went on this voyage to cure an affection of the eyes. after his return he graduated at harvard in the class of 1837 and became a lawyer. mr. dana was qualified by nature and training to become a leading figure in the public life of this country, and his ambition was that way, but the cards ran against him. as goldsmith said of burke, he was "too nice for a statesman, too proud for a wit," high-strung and sensitive as a race-horse, well bred and distinguished in bearing, a clear, graceful and forcible speaker, an admirable advocate, and an accomplished jurist. one of his greatest professional efforts and triumphs was his argument before the supreme court of the united states in the consolidated prize cases, when he had to make it clear to the court how it was that the stupendous struggle in which the country was engaged could be a-war with belligerent rights as between ourselves and other nations, and a local insurrection as between ourselves and the south. it may be remembered that, at the centennial anniversary of the battle of lexington, mr. dana delivered the oration. it begins with the words, "how mysterious is the touch of fate which gives immortality to a spot of earth, to a name." it is a noble commemorative address. concord has always plumed itself because it had a real fight, while the lexington men only stood up to be shot at and did not damage the english. as the anniversaries were approaching and good-natured rivalry was in the air, concord issued a prospectus of some kind, which did not suit mr. dana's fastidious taste, and he said to judge hoar, of concord: "how is it, judge, that you folks at concord have sent out such a shabby, badly-written paper? it is positively ungrammatical." "o," said the judge, "you know, dana, at concord we always did murder the king's english." while mr. dana was united states district attorney he tried the last slave-trading case. the vessel was the "margaret scott," which was fitted out, i think, at new bedford, but did not actually embark on the voyage. the trial was before mr. justice nathan clifford, of the supreme court of the united states. i heard mr. dana's summing up and the charge to the jury. judge clifford was a tall man of great girth. he stood throughout his admirable charge, which took him an hour to deliver. after about half an hour he told the jury that they might be seated. governor hoadley, of ohio, who was a friend of judge swayne of the united states supreme court, once told me this story, which he got from judge swayne. judge grier, when on the bench sat next to judge swayne and, during the latter part of his service, was crippled and dozed a good deal, and sometimes used to annoy judge swayne by speaking to him in a stage whisper. a prize case was on trial and there was discussion about belligerent rights, which one of the counsel pronounced belli_ge_rent. the novelty of the pronunciation roused judge grier, who said to judge swayne quite audibly: "brother swayne, brother swayne, judge clifford is the belli_ge_rent member of this court." in 1868, while at boston, i heard part of the argument in the remarkable case of hetty h. robinson v. thomas mandell, executor and others. the case was tried before judge clifford in the circuit court of the united states. sidney bartlett and benjamin r. curtis (who was then an ex-judge of the supreme court of the united states), were leading counsel for the complainant, and benjamin f. thomas, an ex-judge of the supreme court of massachusetts, was leading counsel for the respondents. the complainant, who is better known to us by her married name of hetty green, had filed her bill setting up a special contract between herself and her aunt, sylvia ann howland, for an exchange of mutual wills, and that neither should make any other will without notice to the other and a return of the other's will. miss howland had died, leaving a will not in favor of hetty, but largely to charity. the respondent, mandell, was her executor. the case is reported in 3 clifford's circuit court reports, page 169. judgment was for the respondents, judge clifford saying, in his decision: "in this case there was no competent evidence to show that there was any agreement as to the making of mutual wills, and there was nothing on the face of the instruments to warrant any such conclusion." mrs. green, whom i saw for the first time, was in court with her husband, a large, dressy man, looking like an english guardsman. much testimony had been taken. there was a question of forgery, and enlarged photographs of signatures were standing about. judge curtis spoke for two days, one day on the facts and one day on the law, a length unusual for him, for he was generally brief. i heard mr. bartlett's opening and part of judge curtis's discussion of the facts. mr. bartlett was a great lawyer, but not, i should say, a very good speaker. his reputation was for condensation and concentration; for making a direct thrust at the central point, with small regard for introductory and collateral matters. someone, i think a judge of the massachusetts supreme court, said that mr. bartlett's mental operations on matters of law bore about the same relation to those of the average lawyer that a book of logarithms does to a common school arithmetic. he continued in active practice until about the age of ninety, made a large fortune, and was famous for his high charges. he was no recluse, but a club man and citizen of the world. this was not the first time that i heard judge curtis. to follow any argument of his was an ever fresh delight. i remember as though it were yesterday the neatness and felicity with which, in the case just mentioned, he dismissed one of several propositions submitted by his adversary, saying, with his usual dignity and composure: "i now come to another of this series, i believe it is the ninth. like all of them, it is not pleaded; like most of them, it is not proved; and, like each and all of them, it would be totally immaterial if it were both pleaded and proved." and then, in his last sentence, with exquisite tact, he lightly touched a certain string: "on one side of this case stands the complainant, with a large fortune; on the other side is a charity; but this court observes the divine injunction, 'thou shalt not respect the person of the poor, nor honor the person of the mighty, but in righteousness shalt thou judge thy neighbor!'" my friend, mr. frank e. bradner, of the essex bar, has referred me to some lines in "the professor at the breakfast table" which speak of judge curtis, who was a classmate of dr. holmes: "there's a boy--we pretend--with a three-decker brain, that could harness a team with a logical chain; when he spoke for our manhood in syllabled fire, we called him 'the justice,' but now he's 'the squire'." he who runs may read. the class of '29 had its twenty-five years meeting, always a great event, in 1854. judge curtis was then on the bench and it was probably then that he spoke for the manhood of the class. he resigned his office in september, 1857, and became a "squire." judge curtis was a master of the difficult art of nisi prius duty. no one could be more courteous, patient and impartial, better equipped with law, more accurate as to fact, or clearer in his rulings and instructions. any judge who has spent several of the best years of his life in learning how easy it is to try badly a case with a jury and how hard it is to do it well, will be interested to read the passage which i quote from a private letter written by judge curtis to mr. webster after he had been on the bench for about a month: "i presume you will agree with me that there is no field for a lawyer which, for breadth and compass and the requisitions made on all the faculties, can compare with a trial by jury; and i believe it is as true of a judge as of a lawyer that, in the actual application of the law to the business of men, mingled as it is with all passions and motives and diversities of mind, temper and condition, in the course of a trial by jury what is most excellent in him comes out and finds its fitting work, and whatever faults or weaknesses he has are sensibly felt." the great event of his judicial career was his dissenting opinion in the case of dred scott v. sandford, (10 howard 393, dec. term, 1856), in which he asserted the constitutional power of congress to prohibit slavery in the territories. this was the doctrine of webster and mason and of the coming republican party. mr. lincoln, in his debate with douglas, carried this dissenting opinion with him. there were nine judges, each of whom filed an opinion. five judges were from slave states and were probably themselves slave-holders. chief justice taney wrote an opinion which is called "opinion of the court," but may be more accurately described as the opinion of chief justice taney and judge wayne, for judge wayne, who also filed a separate opinion, was the only one of the six judges voting with the chief justice who concurred in all his points, reasonings and conclusions. even at this day one cannot read without a shudder the chief justice's unflinching declaration as to the helpless and hopeless status of the negro. judges mclean and curtis filed dissenting opinions. there are complexities in the record which make it difficult for even a lawyer to determine just how much of the opinions filed by a majority of the court is decision and how much is _dictum_. the chief justice withheld from the files the so-called "opinion of the court," and made additions and alterations to the extent of eighteen pages, in evident answer to the filed dissenting opinion of judge curtis, and instructed the clerk not to furnish a copy of the "opinion of the court" to anyone without the permission of the chief justice before it was published in howard's "reports," so that judge curtis, on application to the clerk, was unable to obtain the amplified opinion. there ensued a correspondence between judge curtis and the chief justice in which judge curtis kept his temper admirably and the chief justice nearly, if not quite, lost his, and did so, i think, because he felt that he was in the wrong. judge curtis, by leaving office in 1857, at the age of forty-seven, surprised his friends and the country. there were two reasons for it. the state of the court was such that he did not feel comfortable in it. this does not refer to his controversy with the chief justice, to whose memory he afterwards paid a cordial tribute. indeed, it may be doubted whether he would have felt much more comfortable as a member of the court under the reign of lincoln than he was under the reign of buchanan. he was no party man and did not belong in either camp. his all-sufficient and avowed reason for resigning was that he could not live on a salary of $8,000, and felt bound to secure for himself and his family what burns calls "the glorious privilege of being independent." this purpose was amply realized. he went at once and inevitably to the front rank of the american bar and remained there for seventeen years, during which time his professional earnings amounted to about $650,000. this was not in our day of big business, when members of the bar, who are great men of affairs, but not necessarily great lawyers, receive, or are supposed to receive, rich rewards for services in the organization, manipulation and combination of colossal corporate interests. the annual income of judge curtis was not much over $38,000, but, like mercutio's wound, it was enough, it would serve, and it was fairly earned in the regular practice of his profession, at his office desk, in the trial of cases, and in writing opinions on important questions submitted to him from all parts of the country. he stood so high that his written opinion would often be accepted by both sides of a controversy as the veritable voice of the law itself. i first saw and heard judge curtis at new haven in 1864, in the trial of a suit in equity brought in the circuit court of the united states for the second circuit by the lowell manufacturing company against the hartford carpet company for an injunction and accounting. judge curtis led for the complainant, and the special interest of the case was that he had against him an opponent worthy of his steel, a man five years his senior, of different race, creed, politics and temperament, charles o'conor, the brilliant leader of the bar of new york. the two men were evidently no strangers to one another. judge curtis had said at a dinner party that he regarded mr. o'conor's management of the forest divorce case as the most remarkable exhibition of professional skill ever witnessed in this country. in the case which i heard at new haven the associate counsel were able men, mr. edwin w. stoughton for the complainant and mr. george gifford for the respondent, both prominent patent lawyers of new york. the judges were samuel nelson of the supreme court of the united states and william d. shipman of the district court. it was pleasant, after the crudities of county practice, to see the mutual courtesy of the two leaders. i happen to remember a few gracious words of judge curtis: "and such rights, as no one knows better than the admirable lawyer on the other side, do not lie in covenant, but do lie in grant." the argument was not fully intelligible to me, for it dealt largely with considerations arising out of written contracts with which i was not familiar, but it was entertaining and instructive to watch the two men. there came on each side a grateful gleam of fun. while mr. stoughton was speaking of the terms of a contract, judge curtis, who sat near him, interjected the words: "and no longer." mr. o'conor in his argument laid hold of this and said: "why, you might as well say, 'as long as grass grows and water runs,' 'and no longer'." i recall only one precedent for such an expression. it comes from a land from which we get very little law, though it has given us some lawyers. it is a verse of an old irish song: "then pat was asked would his love last, and the chancel echoed with laughter, o, o yes, said pat, you may well say that, to the end of the world and after, o." mr. gifford, in his argument, had referred to a certain united states statute which, as he said, the supreme court had found difficulty in construing. mr. curtis, in his closing argument, said: "that statute reminds me of a story of a learned divine of this state who once preached a sermon upon a difficult text in one of st. paul's epistles, and said, finally: 'my brethren, i have now given you the results of my most careful study and reflection upon this passage of scripture, but i feel that, in justice to myself, i ought to say that i very much wish that the apostle had not used those words'." when mr. o'conor, who followed his junior, mr. gifford, took his seat after speaking for five hours, the afternoon was getting late, and i heard judge curtis say to mr. stoughton: "i have to answer more than seven hours of solid argument. i cannot do it in two hours, and shall ask that the case go over until to-morrow." it was so ordered. in the evening he said to a friend of mine: "nothing has been said on the other side which cannot be answered. the question is whether i can do it." he spoke the next day for two hours and twenty minutes and closed the case. this litigation resulted in a victory for mr. o'conor and his associates. in july, 1864, judge nelson wrote a short opinion dealing with contractual rights and gave judgment for the hartford carpet company. (case no. 8569, 15 federal cases, page 1021, 2 fisher's patent cases, 472). the judges and counsel, with the juniors from the boston and hartford offices, dined together every day at the new haven house, and a congenial company it was. mr. o'conor, when he was at liberty, would put on the back of his head the silk hat which he always wore and say: "who's for a walk?" and go off on a tramp under the elms. he was a spare, active man, of nervous temperament and great vitality. in new york he lived at fort washington, on the hudson, and used to rise early, walk to his club on fifth avenue, breakfast there and then go down to his office. the keynote of judge curtis was serenity, that of mr. o'conor was intensity. beginning to tread law at the age of sixteen, mr. o'conor fought his way to the lead, an achievement which no one who knows new york city will be disposed to underrate. in the fine old common law phrase, he "made war for his clients." he was tremendously combative within the rules of the game, and absolutely fearless and independent. his opinions were often extreme and sometimes eccentric. i heard him say at the new haven house, in the middle of the war for the union, to a man who asked for political advice: "take the bull by the horns. every dollar spent and every life lost in this war is just so much thrown into the great deep." it was like him to offer his professional services to jefferson davis in his evil day. he prophesied or hoped that "some future tacitus" would arise to pronounce the verdict of history on chief justice taney as _ultimus romanorum_. there was a noble side to mr. o'conor's nature. with all his law he was an idealist. in accepting some now-forgotten nomination to the presidency, he wrote this ringing sentence: "to spend in one's allotted place a blameless life of honest effort, and at its end to perish nobly contending in the thermopylæ of an honest cause, has always been to me the perfection of a happy individual destiny." let this be his epitaph. it remained for judge curtis, a few years later, to perform a professional duty which made him for the second time a prominent figure in the law and politics of the country. this was his opening argument for the defense in the impeachment trial of president johnson. in a private letter written during that trial, he said: "there is not a decent pretense that the president has committed an impeachable offense." most intelligent persons will now agree with him. his argument is a masterpiece of luminous reasoning and exposition, and concludes with this grave warning: "it must be unnecessary for me to say anything concerning the importance of this case, not only now, but in the future. it must be apparent to everyone in any way connected with or concerned in this trial that this is and will be the most conspicuous instance which ever has been or can ever be expected to be found of american justice or american injustice, of the justice which mr. burke says is the great standing policy of all civilized states, or of that injustice which is sure to be discovered and which makes even the wise man mad, and which, in the fixed and immutable order of god's providence, is certain to return to plague its inventors." * * * * * a landlord is held to be deprived of his property without due process of law by a statute giving the tenant the privilege of holding over at pleasure at expiration of his lease, in hirsh v. block, 267 fed. 614, annotated in 11 a.l.r. 1238, on the constitutionality of rent laws. maxwell v. pinyuh. (n. j. supreme court, jan. 20, 1922). _new trial--rules of supreme court--orders of judges--relaxation of rules._ case of louise sylvester, plaintiff, against george s. pinyuh, defendant. on motions to vacate certain rules and orders. mr. harry r. cooper for plaintiff. mr. william j. hanley, mr. o. j. pellet and mr. harlan besson for defendant. heard before justices trenchard, bergen and minturn. per curiam: this is a motion by the defendant to vacate certain rules heretofore made in the above entitled cause, and a counter motion by the plaintiff to strike out the restraint imposed upon her in a rule to show cause granted by mr. justice minturn on the 25th day of october, 1921, and for permission to perfect her proceeding for a new trial. the facts are substantially as follows: in september, 1921, the case (a supreme court issue) was tried in the monmouth pleas on an order of reference made by a justice of the supreme court. the jury found a verdict for the defendant, and the plaintiff, on the 22d day of september, applied to the trial judge for a rule to show cause why a new trial should not be granted, which order was allowed by the trial judge and was made returnable before him on the 6th day of october, 1921. on the return day of the rule, the attorney for the defendant appeared before the judge and objected to his hearing the rule on the ground that, it being a supreme court issue, the rule must be heard by the supreme court. judge lawrence reserved decision in the matter, and thereafter came to the conclusion that the action had become a common pleas case, and that the rule could properly be heard before him, and fixed october 7th, 1921, for the hearing of same. in the meantime defendant's attorney procured from mr. justice minturn a rule to show cause, returnable before the supreme court on the first tuesday of november, 1921, why judgment should not be entered in favor of the defendant against the plaintiff on the postea, and why the trial judge should not sign the postea, and restraining the plaintiff from further proceedings until the further order of the court. a copy of this rule was served upon judge lawrence and he thereupon concluded that the rule must be heard before the supreme court, and he signed the postea. plaintiff's attorney was evidently under the impression that, after the postea had been signed by judge lawrence, the object of the rule allowed by justice minturn was served, and that the stay contained therein was no longer effective and did not restrain him from taking the necessary proceedings to bring on the argument of the rule before the supreme court. he accordingly obtained from judge lawrence (who evidently entertained the same view) a rule amending the previous rule granted by him to the extent that the argument should be heard before the supreme court on the first tuesday of february. apparently, because of the uncertainty on the part of plaintiff's attorney as to whether the rule originally granted by judge lawrence, and the reasons on which plaintiff rested her motion for a new trial, should be filed in the office of the clerk of the supreme court, or in the office of the clerk of the court of common pleas, these papers were withheld from the files and were not filed within the ten days required by the rules of this court. a copy of the reasons and rule were, however, immediately served on the attorney for the defendant. depositions were also taken by the plaintiff under the rule. on the 15th day of december, 1921, plaintiff's attorney obtained from mr. justice kalisch a rule permitting plaintiff to file the rule to show cause allowed on the 22d day of september, as amended by the rule made by judge lawrence on the 30th day of november and the reasons on which plaintiff based her motion for a new trial, with the same force and effect as if the same had been filed within the time limited by law, and, immediately after that rule was granted, filed the rule made by judge lawrence and the plaintiff's reasons in the office of the clerk of the supreme court. a copy of the depositions which were taken under the original rule granted by judge lawrence were also served on the defendant's attorney. no state of the case has yet been prepared and served, but it is stated to be the plaintiff's intention, should the court permit her to do so, to immediately prepare and print her case and bring on the rule for argument at the february term of the supreme court. the defendant moves to vacate the rule of september 22d, and the rule of november 30th, amending it; to vacate the rule allowed by justice kalisch permitting plaintiff to file such rules and the reasons. the plaintiff moves to vacate the restraint imposed upon her by the rule allowed by justice minturn october 25, 1921, and also moves to be allowed to perfect her proceedings for a new trial, and to bring on the same for argument, according to the rules and practice of the court, at the february term. we think the defendant's motion should be denied and the plaintiff's motions granted. it is of course apparent, and the plaintiff freely admits, that the rules to show cause why a new trial should not be granted were irregular and defective and that they have not been brought on in accordance with the rules of the supreme court; but evidently the sole reason therefor was the confusion existing, both in the mind of plaintiff's attorney and that of the trial judge, as to whether the application for a new trial should be heard before the trial judge or before the supreme court. it seems not to be disputed that substantial reasons exist for giving consideration to plaintiff's application for a new trial. in granting the rule to show cause why a new trial should not be granted the trial judge evidently felt that the plaintiff should be given her day in court upon the reasons which were presented to him why the verdict of the jury should not be set aside. we feel that this court should not allow the technical infirmities in the proceeding to deprive the plaintiff of an opportunity to be heard when, by a suspension or relaxation of its rules, a possible injustice may be avoided. rule 217 of the supreme court provides: "the time limited in these rules for the doing of any act may, for good cause, be extended (either before or after the expiration of the time), by order of the court, or a justice or a judge thereof." rule 218 provides: "these rules shall be considered as general rules for the government of the court and the conducting of causes; and as the design of them is to facilitate business and advance justice, they may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that a strict adherence to them will work surprise or injustice." we therefore deny defendant's motion to vacate the rules heretofore obtained by the plaintiff to perfect her proceedings for a new trial, and we grant the plaintiff's motion to vacate the restraint imposed in the order of mr. justice minturn, and also grant the plaintiff permission to perfect her proceedings for an application for a new trial, and also permission to bring the same on for argument at the february term of this court, according to the rules of this court. the relief thus granted to the plaintiff will be upon terms that she pay the defendant costs upon these motions; all other costs to abide the event. state v. gross. (n. j. supreme court, jan., 1922). _city ordinance against disorderly conduct--the disorderly act--removal of persons from railroad train._ case of the state against jacob gross, prosecutor. on certiorari dismissing conviction. mr. charles w. broadhurst for the rule. mr. joseph j. weinberger for prosecutor. argued before justice minturn by consent. minturn, j:. the prosecutor of this writ was convicted before the recorder of the city of passaic for violating section 72 of an ordinance of that city which provides as follows: "that any person, who shall in any place in the city of passaic, make, aid or assist in making any improper noise, riot, disturbance or breach of the peace, or shall behave in a disorderly manner, or make use of obscene or profane language ... shall each be liable to a penalty of five dollars for every offense." the violation complained of was that, while he was a passenger on an erie railroad train, and while the train had stopped at passaic, he refused to remove his baggage from between the seats to the baggage compartment at the request of the conductor, as a result of which the prosecutor became noisy and boisterous, and the conductor thereupon caused the removal of the prosecutor and his baggage from the car, and turned him and it over to a local police officer. he was thereafter prosecuted as a disorderly person and convicted of that offense. various legal grounds are advanced as a basis for vacating the conviction. one only i deem fatal to its validity. the ordinance in question was intended to apply to public places within the city for the purpose of suppressing disorderly conduct therein, and, while in a limited sense a steam railroad car is a quasi public place as between the state and the railroad, it cannot be reasonably construed as furnishing such a public place within the contemplation of the local legislative body, when they passed this ordinance. a similar contention was before this court in state v. lynch, 23 n. j. l. j. 45, where it was held that a saloon, although a public house in contemplation of law, is not a "public place" within the contemplation of the provisions of the disorderly act. the words "public places" in this connection were held to be "such places as are in general use for travel by all citizens, and in which all have at all times an equal right of passage and repassage." adopting this rule of construction the railroad coach in question was not a "place" to which the jurisdiction of the city can be said to extend, and the word "place," therefore, in this connection, must be held to be equivalent to "public place." that this is so is made manifest from the context of the section of the ordinance invoked upon the doctrine of _noscitur a sociis_. thus, the person charged must not only be in "a place in the city of passaic," but he must "make, aid or assist in making any improper noise, riot, disturbance or breach of the peace, or shall behave in a disorderly manner or make use of obscene or profane language." this enumeration of specific acts of misdemeanor connotes, generally speaking, the ordinary offense of disorderly conduct, such as is condemned in our disorderly act; and, as has been observed, such disorderly conduct, to be the subject of public prosecution, must occur in a "public place," within the jurisdiction of the city magistrate, and the environment of the city. a travelling car manifestly is not such a public place. 32 cyc. 1249 and cases. the fact that the prosecutor was noisy in asserting his rights can make no difference in the result, for we may, from experience, judicially notice the fact that the inter-urban railroad train presents no suitable accommodation for one inclined to indulge in either introspection or somnolence. therefore, an ordinary conversation in a major key when indulged, as was the case here, between a conductor, with a book of railroad rules in his hand emphasizing his duty, and a protesting commuter with an innocuous bag, the owner of which attempted to vindicate in yiddish-english the rights of the american travelling public, might be the means of provoking an innocent mental diversion for the benefit of the curious passengers, but could hardly be said to evolve the serious accusation of disorderly conduct in a public place, within the meaning of the ordinance. a discussion in an elevated key on a railway carriage, whether it concern a bag or the suspected contents of a bag, is not an unusual episode in everyday american railway life; nor can it be said to be without its compensation and exhilarating effect upon the general body of passengers, so long as it does not assume the intolerant form of vulgarity, or obscenity, and thus warrant the ejection from the train of the malodorous disputant. the fact, of course, is that the voluminous resonance of a conversation cannot be utilized as a standard to guage either its criminality or its literary value, and yet debates in the halls of legislation, in the courts of justice, not to speak of fulminations from the pulpit, are often measured by the volume of vocalization and the density of lung power behind them. if precedent were invoked from the classics, we have it in "sweet auburn;" where, in fancy, we hear the "loud laugh that spoke the vacant mind;" and goldsmith's pen picture has placed the vociferous schoolmaster among the immortals, whose "words of learnèd length and thundering sound amazed the gazing rustics ranged around." all of this, and more, is familiar experience on the railway train, and thus far has escaped the proscription of the authorities. in mullen v. state, 67 l. 450, the prosecutor in asserting his rights at a schoolmeeting became, in the language of this court, "quite noisy and excited." his conception of public duty led him to indulge in what the complainant called "loud language," and for this he was prosecuted under the provisions of the disorderly act, which prohibits in "public places" the use of "loud, offensive or indecent language." there was no proof of the indecency or offensiveness of his speech, and this court held that the uttering of "loud" language was not enough to sustain the complaint. these considerations, without reference to the other objections presented, lead me to conclude that the judgment of conviction should be vacated, and such will be the order. state v. caprio. (before hon. fred g. stickel, jr., as magistrate. nov. 2, 1921). _prohibition enforcement act--search warrant--seizure of liquor permits and certain liquors._ case of state against luigi caprio. on application to restore property and liquor taken under search warrant issued under the prohibition enforcement act. before hon. fred g. stickel, jr., a judge of the court of common pleas, acting as magistrate under the prohibition enforcement act. mr. anthony r. finelli for application. mr. j. henry harrison, prosecutor of the pleas, opposed. stickel, jr., magistrate: on october 3rd, 1921, acting as magistrate under the prohibition enforcement act, i issued a search warrant directed to richard roe, authorizing a search of the drug store, cellar and rooms attached at 7 bloomfield avenue, belleville, new jersey, and a seizure of the liquor there found, together with all vehicles, fixtures, containers, utensils, machines, contrivances, or paraphernalia whatsoever, there found used or intended to be used in the illegal keeping, manufacture, transportation or sale of liquor. this warrant was based upon an allegation by nick takush that he believed liquor was unlawfully possessed in such place, and that he based his belief upon the fact that he had on several occasions purchased whiskey at that address for beverage purposes, and on the 30th day of september, 1921, had purchased two gallons of alcohol there for beverage purposes. acting under this warrant, the sheriff, through under-sheriff alfred c. walker, returned the body of luigi caprio, admittedly the owner of said 7 bloomfield avenue and of the drug store, cellar and rooms attached. the said under-sheriff also filed an inventory showing that he had seized under said search warrant a two gallon can labeled, "columbia spirits;" a five gallon can labeled "alcohol;" one bottle labeled "columbia spirits;" some liquor permits; one five gallon can, full, labeled, "columbia spirits;" one bottle labeled "aromatic elixir;" one bottle labeled "alcohol." application is now made under sections 63 and 64 of the prohibition enforcement act to restore the liquor and property so taken, on the ground that there was no probable cause for believing the existence of the grounds on which the search warrant was issued, and on the further ground that the liquor and chattels taken upon such search warrant are not the same as referred to in the search warrant. there is absolutely nothing in the testimony taken before me to support the contention that there was no probable cause for believing the existence of the grounds upon which the search warrant was issued, but there is some merit in the other contention. the search warrant directs the taking by the sheriff of "liquor found in and upon the premises aforesaid, together with any and all vehicles, fixtures, containers, utensils, machines, contrivance, or paraphernalia whatsoever found, used or intended to be used in the illegal keeping or sale of liquor." it will be readily seen that the sheriff would only be justified in his seizure of the liquor permits if they came within the description "paraphernalia," and clearly the word "paraphernalia" cannot be interpreted, particularly in the light of the words which precede it in the search warrant, to cover liquor permits. the testimony also showed that the five gallon can labeled "columbia spirits" was delivered by a drug concern to caprio while the sheriff's men were there or about the time they arrived. certainly this liquor is not the liquor referred to in the search warrant, and consequently, not being the liquor referred to in the search warrant, it must be restored to the person from whom it was taken. therefore an order may be presented, reciting that, so far as the prohibition enforcement act is concerned, the search warrant issued by virtue of the authority thereof is not sufficient to justify the sheriff in retaining the liquor permits and five gallon can labeled "columbia spirits," and that in view of the prohibition enforcement act the said liquor permits and "columbia spirits" be restored to said caprio. harsel v. fichter & engelhardt. (essex common pleas, dec. 27, 1921). _workmen's compensation acts in new jersey and new york--applying to wrong tribunal--election of tribunal._ case of julia harsel, petitioner, against william fichter and john engelhardt, copartners trading as fichter & engelhardt, defendants. on petition for compensation under workmen's compensation act. messrs. kent & kent for petitioner. messrs. kalisch & kalisch (by mr. isador kalisch) for respondent. stickel, jr., j.: the employers contend that the petition for compensation in this case should be dismissed because the contract of employment was made in new york, and because the petitioner elected to proceed under the compensation law of new york, subsequently petitioning for compensation under the new jersey law. in considering the case, i felt i would be aided if i had before me the testimony taken in the new york compensation action, and counsel for the defendant very kindly supplied me therewith. from such testimony, which i have filed in this case, as well as from the deposition filed, i am satisfied and find as a fact that the deceased was hired in new jersey by fichter & engelhardt. it is quite clear to me that the deceased heard of the new jersey job of fichter & engelhardt at the union rooms in new york and that, being attracted thereby, he, after giving up the new york job, came to the new jersey job, was seen by the foreman, millhouse, and employed on the spot. engelhardt appears to be a silent partner of fichter, according to his own testimony, and the firm is, in fact, made up as stated in the title to this cause. furthermore, even though the contract of employment had been made in new york, the accident causing the deceased's death having taken place in new jersey, the case falls within the new jersey compensation act, and this notwithstanding the existence of a new york compensation act. american radiator company v. rogge, 86 n. j. l. 436, aff. 87 n. j. l. 314; 245 u. s. 630; david heiser v hay foundry & iron works, 87 n. j. l. 688 (at this time the new york compensation act was in force); west jersey trust company v. philadelphia & reading realty company, 88 n. j. l. 102. as to the question of election, the contention of the employers is wholly without merit. the petitioner, through attorneys other than those who now represent her, applied for compensation under the new york compensation act. the commission held that it had no jurisdiction; that the case was not within the new york jurisdiction, apparently, from the testimony taken, because the commission found that the contract of employment with petitioner was made in new jersey and the accident took place there. thereupon petitioner applied for compensation in new jersey, and an informal award had been made in new jersey, and a day fixed to hear the case on the formal petition, before someone in new york claiming to represent mrs. hassel, the petitioner, had applied for a reopening of the finding of no jurisdiction by the new york commission. petitioner in that posture of affairs advised the new york commission of the new jersey proceeding, and asked that the new york proceeding be stayed "pending the trial of her case in new jersey, and then after and when we receive compensation over there, as i understand the law in this state, mrs. hassel can still come in and get the deficiency claim from the compensation bureau here," and this request was duly granted. what acts of petitioner constitute the election which should bar this new jersey proceeding? certainly not the original application for compensation in new york, for that application was dismissed, and it now appears erroneously, for lack of jurisdiction, and, under such circumstances, it is clear that she has not made a final and binding election such as would preclude her applying to the tribunal in fact possessing jurisdiction. 15 cyc., p. 262, and cases cited; 20 corpus juris, p. 37, and cases cited. if a mistake of a petitioner in applying to the wrong tribunal for relief would not preclude application to the right tribunal (see 15 cyc., supra) certainly the erroneous finding of no jurisdiction by the tribunal applied to could not have a greater and more binding effect upon the petitioner. and even a correct finding of no jurisdiction would not preclude application for relief to the tribunal possessing jurisdiction. 20 corpus juris, p. 27. the only other conduct of petitioner which is relied upon to constitute an election is her request to the new york commission after someone unauthorizedly had applied for a re-opening of the case, and after the institution of the new jersey suit to stay the new york proceedings until the completion of the new jersey proceeding, so that petitioner might obtain in new york the difference between the new york compensation allowance and that of new jersey, and clearly such conduct, which is, in effect, an election to proceed in new jersey on the main case, cannot be held to constitute an election to proceed in new york. i, therefore, find that the petitioner is entitled to compensation for three hundred weeks at the rate of twelve dollars per week, and to one hundred dollars, the statutory allowance for funeral expenses, and i will allow counsel for the petitioner a counsel fee for services in this court of two hundred and fifty dollars. a determination of facts should be prepared by counsel for the petitioner, submitted to counsel for defendant for inspection, and then transmitted to me for signature. state v. ash. (essex common pleas jan. 6, 1922). _driving automobiles under influence of liquor--review of evidence below._ case of state of new jersey against joseph a. ash. on appeal from third criminal court of newark. mr. john p. manning for state. mr. andrew van blarcom for defendant. stickel, jr., j.: the defendant-appellant was found guilty in the third criminal court in the city of newark, judge horace c. grice presiding, for driving an automobile while under the influence of liquor, in violation of section 1, chapter 67, of the laws of 1913, a supplement to the disorderly person act, and he now appeals to this court. the first point urged as a ground for reversal of the conviction is that "at the close of the case there was a reasonable doubt as to the applicant's guilt; that the state had not sustained the burden of proof, and that the weight of the evidence favored the appellant." it is to be doubted whether this court has any power to review the evidence at all, in view of the laws of 1895, page 197, section 7, 3 comp. stat., p. 3993, providing: "that it shall not be necessary to set forth in said conviction [convictions in police courts of first-class cities] the whole or any part of the testimony upon which such convictions is had," but, assuming it possesses such power, it cannot extend beyond the point of determining whether there was any evidence before the trial court to support its finding. see sec. 39, laws of 1915, p. 411, supp. comp stat., p. 490; state v. lynch, 3 n. j. l. journal 45; lyons v. stratford, 43 n. j. l., 376; orange v. mcgonnell, 71 n. j. l. 418. no power to weigh the evidence rests in this court, and, if it did, i would be unwilling to say, after a reading of the evidence in this case, that the trial court was wrong in its conclusion of facts; that it should have disregarded the officer's testimony and that of doctor mitchell, and believe the story of the defendant and his friend; or even that the court must have or should have entertained a reasonable doubt of the defendant's guilt on the whole case. the trial court saw the witnesses, had the benefit of the atmosphere of the trial, witnessed the demeanor of the witnesses on the stand, their manner of testifying, and, consequently, was in a better position to determine questions of fact than this court is, relying, as it must, upon a paper record. there was ample evidence, if believed, to support the charge. the police officer testified that he saw the defendant driving the car, smelled alcohol on his breath, took him to doctor mitchell, the police surgeon, to whom the defendant admitted that he had been drinking, and who found him under the influence of liquor, and on the stand the defendant told of having had two drinks of whiskey. the point stressed--that the police officer's claimed identification of the defendant as the driver on south orange avenue is so improbable and impossible as to make his whole story increditable incredible and unbelievable--presents a question of fact and argument peculiarly the province of the trial court, but, in any event, the fair intendment from his testimony, it seems to me, is that either because of the speed of the auto in question, or because of the auto chasing the car in question, with the occupant waving his hand to the officer, he was attracted to the automobile in question, caught a glimpse of the driver, turned around, followed the car, ordered it to stop, saw the defendant while thus endeavoring to bring the car to a stand-still, and then saw him step out of the car and away from the driver's seat. the next point urged is that the court erred in sustaining an objection to this question addressed to officer moffatt by counsel for the defendant: "how many conferences have you had about this case this morning with captain mcrell, or doctor mitchell?" after this question was asked the court said: "is that material?" "mr. manning: i do not see that this is material. we have a right to prepare our case. i object." the court: "objection sustained. i think you [counsel for the defendant] probably talked about your case with your client." no objection was made to the court's ruling by counsel for the defendant, no exception taken thereto, and no effort made to point out the materiality or relevancy of the question, or that it was but the foundation for some legitimate attack upon the credibility of the witness. in that posture of affairs the overruling of the question was in the discretion of the court and was harmless. state v. panelli (n. j.) 79 atl. 1064. the third and last ground urged for reversal is the action of the court in permitting doctor mitchell to answer the following question over objection of counsel for defendant and exception duly taken: "and, in your opinion, would you say his condition to be such as to prevent his driving a car?" assuming the action of the court constituted legal error, it could not prejudice the defendant, for the state was not required to prove that the defendant was so far under the influence of liquor that he could not safely drive a car, but merely to prove that he drove the car while "under the influence of intoxicating liquor." this is clearly pointed out by justice trenchard in state v. rodgers, 102 atl. 433 (at p. 435), where the justice says: "it will be noticed that it is not essential to the existence of the statutory offense that the driver of the automobile should be so intoxicated that he cannot safely drive a car. the expression 'under the influence of intoxicating liquor,' covers only all the well known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in intoxicating liquors, and which tends to deprive him of that clearness of intellect and control of himself which he would otherwise possess." the state, prior to the propounding of the said question, had submitted testimony showing or designed to show that the defendant had driven the car while "under the influence of intoxicating liquor," and doctor mitchell had already testified that when he examined him he found him under the influence of intoxicating liquor. no legal error being shown or appearing in the record, the conviction is therefore affirmed. in re estate of eckert. (essex county orphans' court, aug. 16, 1920). _exceptions to accounting--depreciation of securities--continuing investments--new and unlawful investments._ in the matter of the estate of august f. eckert. on exceptions to account. messrs. riker & riker (mr. theodore mcc. marsh and harvey s. moore), proctors for exceptant. mr. edward r. mcglynn, proctor for the executor. stickel, jr., j.: august f. eckert, of orange, new jersey, died on or about october, 1914, leaving a last will and testament, whereby he bequeathed his property to his wife, caroline eckert, and to his children annie m. eckert and clara m. eckert, to be divided equally between them as soon as the youngest child should arrive at the age of twenty-one years. he appointed william scheerer, executor. both of the children were of the age of twenty-one years at the time of testator's death. scheerer duly qualified as executor, and from 1914 to the present time he has been in charge of the administration of the estate. after being cited to account he filed the account here in issue, and annie m. eckert, who has married and is now known as annie maxwell, filed numerous exceptions to the account. all of these exceptions were disposed of at the hearing except certain exceptions which fell into two classes, first, those relating to the depreciation on certain issues of bonds, generally described throughout the hearing as public service securities, and, second, the exceptions based upon the executor's failure to invest the cash on hand. i will overrule the exceptions falling within the first class, namely, those seeking to surcharge the executor for depreciation of securities invested in by the testator and received by the executor as part of his estate. the securities, the subject matter of the exceptions now under consideration, are investments made by the testator. consequently, unless it can be shown that in continuing these investments the executor failed to exercise reasonable discretion and that there was an absence of good faith in so continuing them, he cannot be charged with depreciation of such stock. the burden of proving such lack of good faith and failure to exercise reasonable discretion is upon the exceptant. this burden she has failed to sustain. i am convinced that whatever the executor did in the management of this estate was done solely with the best interests of the estate in mind. when the decedent died his widow and two daughters remained together as a family and the executor proceeded to administer the estate possessed of the complete and entire confidence of the beneficiaries of the man who had had sufficient confidence in him to appoint him his sole executor. it was his strict duty, perhaps, to close up the business of decedent, collect the assets, pay the debts and at the end of the year distribute, and had he done so he would early have been relieved of his responsibility. but he wanted to help the family, and so he departed from his strict duty and permitted the business to be continued for a time so that the family might benefit from the receipts thereof. again, he permitted the informal use and division of some of the debts collected and personal property left. but it is entirely clear to me that this was done by common consent of those concerned, including the exceptant. the three, constituting the family, were treated as an entity, and these and other departures from the strict line of the executor's duty were committed because they were for the common good. in line with this policy of helpfulness on scheerer's part, and of confidence and reliance upon the part of the devisees, the executor was given charge of the lands and permitted to continue the management of the estate long after it should have been wound up. he became, by tacit consent and common understanding, the trustee of the family. they wanted the benefit of his judgment and experience until the real estate could be sold and the proceeds properly invested. this he gave to them. this continued during 1915, 1916 and 1917. no question seems to have arisen as to the propriety of continuing the investments, nor, indeed, were the executor's acts in any respect challenged during this period. then the exceptant left the family and became mrs. maxwell, and in 1918 demanded an accounting. up to this point no evidence at all of bad faith or unreasonable exercise of discretion appears. the result of the demand of the exceptant was the agreement by the executor and the exceptant, in the office of john p. manning, her attorney, upon a settlement which provided for a payment of part of her share in cash and part in investments of decedent continued by the executor. the settlement fell through, not apparently because the securities or settlement were unsatisfactory, but because exceptant disapproved of the word "heirs" in the release requested of her by the executor. at the time, in 1918, the exceptant was willing to take, as her share of the estate, some of the same investments which she now declares the executor was negligent in continuing. thereafter, and up to the filing of the account, the attorneys of the exceptant and the attorneys of the executor were in frequent negotiation, endeavoring to settle the differences of the parties and agree upon a distribution or division. certainly, during this period, the executor would not be charged with bad faith or failure to exercise reasonable discretion in keeping the subject matter of the negotiations _in statu quo_, ready for immediate distribution or division in the event of an agreement. where, then, is the evidence of lack of good faith and failure to exercise reasonable discretion? i can find none. indeed, when it is realized that two of the beneficiaries are entirely content with the executor's retention of the securities in question; that that which the securities in question represent is as valuable to-day as when the decedent died; that the depreciation is a paper or market one, due to abnormal conditions general throughout the world; that with the return of normal conditions these securities are likely to find their old level, and that the exceptant herself has continued to hold her individual securities, of the same general type as those here in question, it is easy to believe that had the distribution of the estate taken place heretofore, to-day would have seen all parties holding on to their securities, collecting their accustomed income, hoping for the return of the conditions which would mean a rise in the market value of their said securities. the mere fact that the executor did not close up the estate within a year or two after the decedent's death, but continued to manage and administer it, including the real estate, with the consent of beneficiaries, did not increase or change his liability. he was bound to take the same care of the estate as before, no more, no less. perrine v. vreeland, 6 stew. 102. we will now take up the claim that the executor should have invested the cash on hand instead of keeping it in the bank, and that, having failed to do so, he must be charged with the difference between the interest he did get and that which he might have received had he invested it. this exception is also overruled. it is true that, generally speaking, it is the duty of an executor to invest funds in his hands; but the propriety of charging an executor or trustee with interest because he has failed to invest the funds depends upon other facts than the mere possession of the funds, and i know of no case holding that where, pending negotiations for settlement and distribution, an executor left the funds of the estate in saving banks, he must be charged with the interest he might have received had he invested the funds of the estate and perhaps thereby interfered with the immediate liquidation and settlement of the estate. on the contrary the tendency of the decisions is to uphold such conduct. his course prior to the demand in 1918 was acquiesced in by the exceptant; his actions since then were governed, and necessarily, by the continually pending negotiations. in any event the uninvested funds at best scarcely equalled at any time, as far as i can discover, two or three thousand dollars, sums perhaps not always easy to quickly and satisfactorily invest. this leaves for consideration only the act of the executor in investing five thousand dollars of his _cestui que_ money in public service funds. these were securities in which a trustee had no right to invest. they are not among those investments which our statute permits trustees to invest in, and, in establishing the investments, the exceptant has made out a _prima facie_ case requiring explanation by the executor. undoubtedly the executor acted in good faith, but that will not protect him as in the case of continuing investments made by a decedent. his explanation, other than that he acted in good faith, appears to be that the investment was made with the acquiescence of the exceptant; that she is estopped from questioning the investment. i doubt that the exceptant had actual knowledge of the investment when it was made, and the general acquiescence which negatived bad faith in the executor in continuing the decedent's investment would not suffice to protect the executor in making an investment of this kind. nor do i find that she possessed the knowledge of this transaction that would permit of the application of the doctrine of estoppel. as a consequence, unless there are facts which have escaped or have not been brought to my attention which relieve the executor from the normal effect of an investment of this kind, he must be charged with the depreciation of these bonds, unless the beneficiaries agree to accept the bonds as such. [note by editor.--the above case, which has attracted much local attention, was in part sustained and in part overruled in the prerogative court on jan. 31, and may go to the errors and appeals]. in re vreeland. (essex common pleas, jan. 19, 1922). _insolvent debtor_--a preferential payment of a bona fide debt by an insolvent debtor does not bar his discharge under the act for the relief of persons imprisoned on civil process. in the matter of frank a. vreeland. application for discharge as insolvent debtor. mr. richard h. cashion for debtor. mr. frederick j. ward for objecting creditor. flannagan, j.: on june 29th, 1921, peter m. dalton recovered a judgment in tort against frank a. vreeland, in the orange district court, in the sum of $211.80 and costs; execution was issued and returned unsatisfied. on september 9, 1921, the debtor was taken into custody on a capias ad satisfaciendum and released on bail on the following day. the debtor now applies to this court for a discharge as an insolvent debtor under the act for the relief of persons imprisoned on civil process, having filed what he claims is "a just and true account of all his real and personal estate," as provided by section 6 of the act. it appeared from the testimony of the debtor on the hearing before this court that, after entry of said judgment and on july 5, 1921, he executed to his sister, laura a. vreeland, a chattel mortgage, for the sum of $1,505, being the amount of a pre-existing debt for cash advanced by her to him between august 30, 1920, and the date of the mortgage (to wit, july 5, 1921). the debtor has no property of any substantial value remaining, and, while the value of the property mortgaged is questioned, it represented substantially all his resources and appears to be by no means equal in value to the amount of the loan against it, $1,505. the creditor contends that the debtor, having thus made a preference in favor of his sister since the entry of the judgment, he is not entitled to a discharge. this is the only question which is involved in the present application. the statute provides (section 8) that the court shall "consider and examine the truth and fairness of the account and inventory," and (section 11) that, if the court is "satisfied that the conduct of the debtor has been fair, upright and just," it may proceed to grant his discharge upon compliance by him with the further provisions as to assignment, etc., set forth in the statute. under section 15 of the act it is provided that if it shall appear that the debtors have "concealed or kept back any part of their estate or property, or made any ... mortgage ... with intent to defraud his creditor ... then ... said debtors shall be refused ... discharge." the provision which requires the debtor's conduct to be "fair, upright and just" is restricted to his conduct in making his account and inventory, and "in delivering up to his creditors all his estate" (meliski v. sloan, 47 n. j. l. 83; reford v. creamer, 30 n. j. l. 253), and, unless the mortgage to the debtor's sister was with intent to defraud, it would seem he is entitled to his discharge. of course, if the mortgage is fraudulent, he would not be entitled to it. iliff v. banhart, 60 n. j. l. 253; affd. 61 n. j. l. 286. there is no evidence in the case that the consideration paid for the mortgage by the debtor's sister was fictitious, or was not bona fide, or that the mortgage was with any promise or expectation of future benefit to the debtor, or was otherwise improper. on the contrary the testimony is that the mortgage was given for money advanced. the only objection to the discharge which the evidence would justify is that the mortgage was given when the debtor was in failing circumstances while insolvent and after the creditor's judgment had been entered. there is nothing fraudulent or wrong, within the meaning of the act for the relief of persons imprisoned on civil process in the giving of a preference knowingly by a person in an insolvent condition. at common law every man, even when in failing circumstances, has a right to dispose of his property, to pay one honest creditor in preference to another one. garretson v. brown, 26 n. j. l. 437; affd. 27 n. j. l. 644; stillman's ex. v. stillman, 21 n. j. eq. 126. if the debt was honestly due the debtor had a right to select his favorites. there is nothing in the act to change the common law on this subject and hence the debtor was within his legal rights when he made the preference referred to his sister. for these reasons the debtor is entitled to his discharge. n. y. and greenwood lake railway co., et al. v. essex co. park commission. (n. j. supreme court, dec. 10, 1921). _certiorari--railroad land acquired by park commission by condemnation--disuse of land by railroad._ new york and greenwood lake railway co., a corporation, and erie railroad co., a corporation, prosecutors, against essex county park commission. application for writ of certiorari before hon. william s. gummere, chief justice. messrs. parker, emery & van riper (by mr. john m. emery) for prosecutors. mr. alonzo church for respondent. gummere, c. j. (orally): as i understand the situation with relation to the law and the facts, it is this: the park commission, having been created by the legislature for the purposes specified in the act under which it was organized, conceived the idea of acquiring land to be devoted to the uses of a park up in verona, and that was done, of course, under a form of resolution, and i assume, unless i am corrected, that the land to be embraced in the park was described, in a general way at least, in the resolution. having taken that step they started in to acquire the land to be embraced in the proposed park, and in carrying out that purpose they approached this railroad company for the purpose of buying from them, for the purposes of a park, this particular piece of land, but they were unable to make any arrangement with the company with relation to its purchase and sale. i say that from my recollection of the provisions in the petition which was submitted to me, and the accompanying affidavits. the railroad company at that time, and that was prior to the first of november, knew that this park commission proposed to acquire a tract of land, of which this particular piece was an integral part, for the purposes of public recreation, not only for the citizens of verona and neighborhood, not only for the citizens of the county of essex, but for all the citizens of the state who desired to enjoy that public benefit. now, the park commission either had or had not the right to acquire this land in invitum, that is, against the will of the railroad company and by the exercise of the power of eminent domain given to them by the state itself, and so if they had desired to do so (and when i say "they" i mean the railroad company), they could have ascertained just what the steps were that had been taken by the park commission antecedent to the negotiations for the purchase of this land. they would have ascertained that this resolution had been passed and that this particular piece of land was only a part, perhaps a small part of the whole territory which was to be acquired and devoted as a unit to park purposes, but they did not do it. they sat still until they received notice that an application had been made to the presiding justice here for the appointment of commissioners to condemn that piece of land, and a representative of the railroad company appeared here in response to that notice. of course, there was nothing that could be done in that particular phase of the matter which would operate as a stay, because the judge in a matter of that kind sits as a mere legislative agent. but, after the court had appointed the commissioners, this railroad company, having neglected to act promptly in the way that i have already suggested, by certioraring the resolution, and thereby preventing the expenditure of comparatively large sums, i suppose, of public moneys, still waited; not only waited, without attempting to halt the proceedings, but they actually attended before the condemnation commissioners. counsel says with a reservation, or with an expostulation, or a protest, or what not, but they appeared there for some purpose, and i suppose to see what the award would be. i don't know whether they offered testimony or not as to the value of the land. that has not been spoken of. mr. church: they did offer testimony. the court: with the apparent idea, then, that they hold on to their legal rights with one hand, and, if the award justified them in letting go, they would let go of their legal rights and take the money. now the question is whether in that situation this railroad company is in a position to ask relief from a judge of the supreme court, the relief being in the shape of a writ of certiorari; and whether or not the writ will be awarded is a matter resting in the discretion of the court. i am not speaking about the question of laches, but, in determining whether this writ ought to issue, i must take into consideration all of the circumstances. it appears that the railroad company, instead of acting promptly, has stood by supinely and seen the county of essex expend a large amount of money for the purpose of acquiring property, the value of which for public purposes would be greatly depreciated if they were to be prevented from taking this land as a part of the scheme to be carried out. so, i would be inclined to say that, in view of that situation, in the exercise of a proper discretion, i ought to tell the railroad company that i cannot see my way clear to allow this writ; that it would be greatly injurious to the people of essex county and the people of the state, even, and would produce that injury, although the people and their representative, the park commission, are in no way responsible for it. then there is another reason why i think this writ ought not to be allowed. this railroad company received from the state of new jersey a grant, by the terms of which it was permitted to acquire lands for the construction and operation of a railroad between given points. that grant was not as a matter of course made to the railroad company for the purpose of benefitting it, but to provide a means of transportation by which the public would be served; and it was an implied part of the contract which was created by the tender of the grant and its acceptance, that this corporation would, within a reasonable time, not only acquire the land but build the railroad and carry the people of this state backward and forward across it for the compensation which the legislature permitted the railroad company to charge; and for over half a century they have violated the implied condition of their agreement. they have acquired the land. they have not attempted, and so far as i know never will attempt, to devote this land to the purposes for which alone they were entitled to acquire it. they are holding it out of the general property of the state, and by doing so prohibiting its use for the benefit of the state, or any of its citizens, or anybody else. in other words, it is not land that is being held by this company for railroad use. it has never been so used by them, since it was acquired over a half century ago, and, so far as anybody can tell, it is quite uncertain whether it ever will be used for the purposes for which its acquisition was permitted. now, in that situation, the state comes along and through its agent, the essex county park commission (for that commission is a state agent) says: 'we need this land for public use. you have had your chance to devote it to that use; you have consistently declined, by inaction at least, to so devote it, and now we are going to devote it to the uses and benefits of the state and of the people of that part of the state located within the borders of the county of essex,' and i am inclined to think that this was the situation contemplated by the legislature which induced the reservation in the act of 1921 that railroad companies should not be permitted to act as dogs in the manger and hold out land which they cannot use themselves, never have used, and perhaps never will use, for the only purpose to which they could devote it under their charter. and so, i think, for this reason also this application should be denied. abstracts of recent public utility decisions. _in re west shore & seashore r. r. co._--application to discontinue maintaining an agent at forest grove, as revenues do not warrant expense of the agency; the place to be put under the supervision of the agent at minetola, who would keep the station open, lighted, etc. the board permitted the discontinuance, adding that "if future conditions change to the extent of warranting the re-establishment of an agent, the matter will be given further consideration." report dated nov. 4, 1921. mr. george a. bourgeois for the company. mr. joseph little and mr. charles h. lincoln for protestants. another application was made at the same time by the same company for the discontinuance of the agent at buena. the board said: "while the reasonableness of the company's desire to reduce operating expenses is recognized, the discontinuance of the agent would undoubtedly result in inconveniencing shippers and receivers of freight and express to an extent that would not be justified considering the volume of business. the necessity for the presence of an agent or clerk for a portion of the day is manifest, and arrangement should be made to have a representativeat the station from 8 a. m. until 1.30 p. m. daily, excepting sundays: also that the station be kept open during the hours it is at present open for the convenience of passengers. if the company will arrange to have a representative at the station for the transaction of necessary business from 8 a. m. until 1.30 p. m., and keep the station open covering hours now in effect, the board will approve such an arrangement in lieu of agency now effective." report dated nov. 4, 1921. mr. george a. bourgeois for the company. mr. charles wray for protestants. _in re pennsylvania r. r._--application to discontinue an agent at allaire. permit granted. report dated nov. 4, 1921. mr. w. holt apgar for petitioner. _in re city of newark._--application for a change in the colorific standard of gas. the board was about to investigate the rates charged for gas by the public service gas co., when the city of newark gave notice of a demand for an increase in the standard. "there was thus," said the board, "injected into the proceeding a question which had to be decided before the board's investigation into the rates could proceed, it being impossible to fix a price for gas until the board should fix the standard for gas under newark's petition. the rule fixing the standard for gas being applicable to all gas companies in the state, general notice of hearing was given, and the gas companies were represented." testimony was begun in august last, and the general purport appears in the report. the board said: "it does not appear that the gas supplied by the public service gas company compares favorably with that furnished by other companies, which, confronted by the rule [ix of the standard adopted by the former utility board] alone, have applied it in accordance with its apparent literal significance. the rule, however, should be free from any misunderstanding as to its meaning. as the public service gas company supplies the greater part of the gas consumed in the state, and to now require it to change its interpretation of the rule might result in undesirable complications in the rate proceeding being conducted by the board without corresponding advantage to its customers, it is deemed inadvisable to insist upon such change. in order, however, that there may not be a continued apparent conflict between the rule as worded and the practice of the company, the board will change the wording of the rule so that there will be no doubt if gas is supplied with a minimum daily average of 525 b. t. u. it will be in compliance therewith." report dated nov. 4, 1921. messrs. e. w. wakelee, e. a. armstrong and g. h. blake for public service gas company. mr. jerome t. congleton and mr. j. g. wolber for the city of newark. mr. george l. record for city of jersey city. mr. benjamin natal for city of camden. mr. william a. kavanagh for city of hoboken. mr. joseph t. hague for city of elizabeth. mr. a. o. miller for city of passaic. mr. william p. hurley for town of nutley. mr. welcome w. bender for chamber of commerce of elizabeth. mr. f. r. cutcheon for consolidated gas company. mr. s. j. franklin for cumberland county gas company. mr. h. s. schutt for atlantic city gas company. mr. william wherry, jr. for new jersey gas association. dr. w. g. hanrahan for rent payers' association of essex county and federation improvement associations. mr. james w. howard on his own behalf. _in re blackwood water co._--application for increase in rates. the board required, first, that changes must be made in the system so as to provide for continuous operation of the filter plant, additional power to operate the pumping machinery, etc., six different improvements in all. doing this the company could make certain increases in rates beginning jan. 1, 1922. report dated nov. 9, 1921. mr. lewis starr for petitioner. mr. samuel p. hagerman for township of gloucester. some interesting out-of-state decisions. state prohibition laws and eighteenth amendment. in the habeas corpus proceeding of jones v. hicks, decided by the georgia supreme court and reported in 104 southeastern reporter, 771, portions of the statement of facts and opinion of the court by judge gilbert are as follows: "jones was arrested under a bench warrant issued by the judge of the city court of macon, based upon an accusation charging him with violating the prohibition law of this state on january 21, 1920. he filed a petition for the writ of habeas corpus, based upon the ground that the eighteenth amendment to the constitution of the united states, which was ratified on january 16, 1920, and the 'national prohibition act' known as the volstead act (41 stat. 305), superseded and abrogated all state laws on the subject covered by said eighteenth amendment, and that therefore, at the time this defendant is alleged to have committed the criminal offense charged in the accusation, there was no valid state law in existence. the court refused to release the petitioner, and that judgment is excepted to.... "the second section of the amendment as proposed to the states and ratified, provides that 'the congress and the several states shall have concurrent power to enforce this article by appropriate legislation.' "three views as to the proper construction of the second section have been generally discussed: (1) that concurrent power means joint power; (2) that the power is given to each, the legislation of either congress or the states being of equal force with the other; and (3) that the power is in each, but that the legislation of congress, as the supreme law of the land, will supersede any inconsistent state legislation.... "the supreme court of the united states having adversely disposed of the contention that 'concurrent power' means joint power [state of rhode island v. palmer, 40 sup. ct. 486], there remain two other views to be considered. similar, but not identical, questions have been discussed heretofore by courts of several states and by the supreme court of the united states. none of these involved construction of delegated powers to be exercised concurrently. they are cited here for comparison, and not as controlling.... "the sphere in which the congress, under the eighteenth amendment, may legislate for the enforcement of prohibition, is limited to the precise terms stated in the amendment, to wit, 'concurrent enforcement....' from a consideration of the question as above presented, we reject the view that the legislation of congress will supersede and abrogate the laws of the state which are appropriate for the enforcement of the amendment. we conclude that the power of congress and of the state is equal and may be exercised by the several states for the purpose of enforcement concurrently within their legitimate constitutional spheres. ex parte guerra (vt.) 110 atl. 224, and authorities cited. the first section of the amendment is in no way affected or qualified by the words 'concurrent power,' found in the second section." killing cows by automobile. an automobilist, driving his car at an excessive rate of speed along an improved country road in the night-time, struck and killed two cows being driven along the highway. the animals were walking, one behind the other, in or near the wheel track on the side of the road on which they belonged. the machine, after striking the leading animal, skidded and struck the other cow, killing her instantly and casting her dead body, a distance of 57 feet. the driver admitted he was going "about" 25 miles an hour; and the court comments: "the result of the catastrophe indicate rather strongly that he underestimated his speed." the vermont case of bombard v. newton, 111 atl. 510, is based on this occurrence, and was instituted by the owner of the animals to recover damages for their negligent killing. the court held that the right to drive an automobile along a public highway is not superior to that to drive cows along the highway. "the parties," states the opinion, "had equal and reciprocal rights to the use of the road, and each owed the other the duty of so exercising his own right as not to interfere with that of another. the fact that it was in the night-time affected the rights of the parties only as it bore upon the amount of vigilance each was bound to exercise. the fact that the defendant was operating an automobile, an instrumentality whose capacity for harm is well exemplified by the results in this case, and the fact that the plaintiff was driving cows, animals whose viatic vagaries have come to be known of all automobile drivers, were conditions affecting merely the degree of care required of the parties respectively." miscellany public service loses jitney suit on dec. 2 the court of errors and appeals, by a tie vote, 7 to 7, practically affirmed the decision of vice-chancellor griffin in denying an injunction to the public service railway co. to prevent operation of jitneys on the public highways. the affirmative votes were by justices black, kalisch, parker, swayze and trenchard, and judges white and van buskirk; the negative by chief justice gummere, justices bergen, katzenbach and minturn, and judges williams, gardner and heppenheimer. justice minturn wrote an opinion for the negative view. the essential points relied upon by counsel for the railway company in support of the application for an injunction against the jitney owners were that none of the defendants had applied for and obtained consent for the use of the streets and highways on which they operated, as required by the limited franchise act of 1906; that none of the defendants filed with the chief fiscal officer of the city in which they operate a policy of insurance, as required by the kates jitney act of 1916; that barnett, though filing a policy of insurance in newark, filed only a copy of the policy in elizabeth; that banker filed a policy in new brunswick, but none in south amboy; that the public service railway in the enjoyment of a legal franchise is entitled to an injunction against the alleged illegal competition on the part of jitneys, and that the public service is entitled to protection of its franchises and business by injunction under decisions of the new jersey court. merritt lane, counsel for the jitney owners, questioned the jurisdiction of the court of chancery to grant the injunction, contending that the rights of the public service are not of such a nature as to justify it in seeking relief in any court, and argued that the franchise of the company was not to transport passengers for hire and reward but to lay and maintain rails in public streets and to operate cars thereon. mr. lane also submitted that to grant the injunction would create a result manifestly opposed to public policy and would result to the disadvantage of the public. he submitted that the company was not in a position adequately to handle the traffic and that if the jitney were eliminated hundreds of thousands of persons would be obliged to walk or stand while riding. hunting by foreigners. the county clerk of sussex, mr. harvey s. hopkins, has appropriately called the attention of municipal clerks in that county to their neglect of duty under the hunting and fishing license law. doubtless the same neglect has resulted in other counties. in sending out the supply of 1922 licenses mr. hopkins wrote: "in every monthly report compiled by this office i can see instances where resident hunting licenses have been improperly issued to foreigners who have not yet acquired their final naturalization papers. this is both unjust and unlawful and sooner or later some issuing clerk will encounter serious trouble through his laxity in this matter. unless you have personal knowledge respecting the applicant, there is but one safe procedure: compel him to produce his certificate of final naturalization. his first papers, or declaration of intention are not sufficient." mr. hopkins also called the attention of the municipal clerks to the change in the fish and game laws which no longer exempt women from the necessity for procuring a license. formerly women were not required to have licenses to fish, although they had to get them to hunt. now they have to have licenses for both, as per chapter 112, laws of 1921. honor to mr. gaskill. mr. nelson b. gaskill, formerly assistant attorney-general of new jersey, and now a member of the federal trade commission, has been elected chairman of that body. he is the second jerseyman to enjoy that honor, the late j. franklin fort, former governor, having been chairman several years ago. mr. gaskill is a son of former judge joseph h. gaskill of burlington county, was for many years connected with the new jersey national guard and during the late war held the rank of lieutenant-colonel in the judge advocate-general's department. he was appointed to the federal trade commission by the then president wilson. jersey law school alumni. the new jersey law school alumni association has completed its organization. the officers elected are: judge clyde d. souter, president; john a. ammerman, first vice president; miss irene rutherford o'crowley, second vice president; john a. matthews, third vice president; miss helen oppenheimer, secretary; raymond foster davis, treasurer. at the dinner in the berwick hotel, newark, more than 100 lawyers in this state, all graduated from the school, attended. richard d. currier, president of the law school, told the guests of the advantages gained by promoting good fellowship in the form of an alumni association. humor of the law. a certain lawyer was asked by an acquaintance how it was that lawyers contrived to remain on such friendly terms with each other, although they were famed for their cutting remarks. the lawyer looked at him with a twinkle in his eye, and remarked: "yes, but they're like scissors; they only cut what comes between."--_japan advertiser._ * * * * * his honor: "get the prisoner's name, so we can tell his mother." rookie: "he sez his mither knows his name."--_vaudeville news._ * * * * * "prisoner at the bar," said the judge, "will you have trial by judge or jury?" "by jury, your honor," said the defendant. "i'll take no chance on you!" "what!" roared the court. "do you mean to say that i would--" "i don't mean t' say nothing," said the prisoner, stoutly, "but i ain't taking no chances. i done some plumbin' work for you last winter!"--_richmond times-dispatch._ * * * * * there recently died in illinois an aged farmer, reputed to be wealthy. after his death, however, it was discovered he left nothing. and his will ran like this: "in the name of god, amen. there's only one thing i have. i leave the earth. my relatives have always wanted it. now they can have it." * * * * * mr. hardfax: "so your son left us to go into a bank in the city? how did he acquit himself?" mr. timbertop: "he didn't acquit himself. it took the best lawyer in the county to get him acquitted."--_boston globe._ the legislature. the 146th session of the new jersey legislature opened at trenton on january 10. the senate consisted of 16 republicans and 5 democrats; the assembly of 45 republicans and 15 democrats. there are two women in the legislature, mrs. catherine brown, democrat, of hudson county, and mrs. margaret b. laird, republican, who was reëlected from essex county. senator william b. mackay, of bergen county was elected president of the senate; and assemblyman t. harry rowland, of camden, speaker of the house of assembly. governor's appointments. among the recent appointments by governor edwards the following will prove of special interest to the bar: justice james f. minturn, of hoboken, of the supreme court, reappointed. justice charles c. black, of jersey city, of the supreme court, reappointed. judge walter p. gardner, jr., of jersey city, member of the court of errors and appeals. mr. samuel m. shay, of merchantville, common pleas judge of camden county in place of judge john b. kates. judge william h. speer, of jersey city, circuit court judge, reappointed. mr. willis t. porch, of pitman, prosecutor of the pleas of gloucester county, to succeed oscar b. bedrow. mr. john o. bigelow, of newark, for prosecutor of the pleas. mr. john enright, of freehold, for commissioner of education. some state notes. on jan. 5 former judge maja leon berry, solicitor of the ocean county board of freeholders, entertained that body, the county officials and newspaper men at a dinner at the ocean house. the occasion was the host's forty-fifth birthday and he has followed this custom of entertaining the officials for the past twelve years. mr. james r. nugent, of newark, was nominated on january 16 by the governor for prosecutor of the pleas of essex county, but, a week later, was refused confirmation by the senate, by a vote of 17 to 3. mr. william e. holmwood, of newark, has removed his law office to 43 washington street. mr. j. victor d'aloia, of newark, has gone to europe for a stay of about two months, so as to visit his parents in italy. a testimonial dinner was given to judge rulif v. lawrence, of freehold, at the hotel belmont at that place, on january 2, and he was presented with the gift of a gold watch. the monmouth co. bar association held its annual meeting at freehold on january 3 and reëlected its president, halstead h. wainwright, of manasquan. the union co. bar association held its annual meeting at elizabeth on january 3 and elected as its president mr. clark mck. whittemore. it decided to ask the legislature to increase the jurisdiction of the district courts. state senator thomas brown, of perth amboy, was appointed counsel for the public utilities commission on january 3, to succeed mr. l. edward herrmann, although the latter is still retained by the commission as special counsel in the prosecution of the public service rate case before the united states supreme court. senator brown has practiced law at perth amboy since 1907. obituaries. mr. george w. jenkins. mr. george walker jenkins, one of the best known lawyers of morristown in former years, afterward as active in corporation matters in new york city, died in memorial hospital, new york city, on january 19, 1922. he had been out of health for some months, but went to the hospital only a few days before his death. mr. jenkins was born november 7, 1848, at catasauqua, pa., his parents being george and hannah (morgan) jenkins, who were welsh people and born in wales. after the usual early education he entered yale college, from which he was graduated in 1870. he studied law with messrs. parker & keasbey, in newark, and was admitted to the new jersey bar at the november term, 1873, and became counselor at the february term, 1880. he began practice at boonton, but later went to morristown, where he soon became one of the most active lawyers of the place. he had ability, assiduity and exactness in office matters, being so exact in fact that he became one of the most popular special masters of the court of chancery to whom other members of the bar referred their cases whenever practicable. taking early to politics he was soon prominent in the republican party, and was elected and served as a member of the assembly during the years 1883, 1884 and 1885. he was also counsel to the board of chosen freeholders, and at one time served as journal clerk of the new jersey senate. in 1886 he ran for state senator for morris county, but was defeated by george t. werts, who afterward became governor. about twenty-five years ago mr. jenkins, while not removing from morristown, went to new york city, and was engaged from then until recently, when his health became impaired, in carrying on legal business connected with various extensive corporation enterprises. he was vice-president and director of the bridgeport (conn.) gun implement co. and remington arms co., director of the m. hartley co., treasurer and director of the union metallic cartridge co., trustee of the washington trust co., etc., in all of which his legal knowledge was used with skill and real ability. he owned a large and handsome residence in morristown, and also the silver lake farms at green village. he was a member of the morristown club, morris county golf club and the university, yale and union league clubs of new york city. mr. jenkins married miss helen hartley, daughter of marcellus hartley, of new york city, who, with one daughter and two grandchildren, survive him. his eldest daughter, mrs. frances greer, of new york city, died about two years since; the surviving daughter is mrs. winter mead, of sand beach, conn. he is also survived by a sister, mrs. a. l. dennis, of plainfield, and by nieces. the interment was at boonton. mr. james a. gordon. mr. james a. gordon, an active practicing lawyer at jersey city, died suddenly at his home, 638 pavonia avenue, on january 11. complaining that he felt ill, mr. gordon left his office the day previous, but his illness gave no indication that death was near. mr. gordon was the son of john a. and isabella (leslie) gordon, and was born in the city of bergen (now jersey city), october 7, 1860. he was graduated from the jersey city high school in 1881; read law with mr. john linn and linn & babbitt, and was admitted as a new jersey attorney at the june term, 1885, and as counselor at the june term, 1888. he soon became one of the ablest of the younger members of the hudson bar. his office was at 586 newark avenue, jersey city, at the time of his death. he was unmarried and made his home with a sister, miss isabelle leslie gordon, who, with a brother, william stewart gordon, survives him. he belonged to the bergen lodge, f. and a. m., and the hudson bar association. mr. robert i. hopper. mr. robert imlay hopper, of paterson, long a prominent attorney of that city, died on january 24th after a few days illness from a general breakdown. mr. hopper was the son of the late judge john hopper and mary a. (imlay) hopper, of paterson, and was born in that city may 28, 1845. after a public school education he entered rutgers college, being graduated there in 1866. he studied law with his father and became a new jersey attorney at the june term, 1869, and a counselor three years later. for many years father and son were associated in practice in paterson, being severed only because the father was elevated to the bench. in 1878 he was chosen counsel to the passaic board of chosen freeholders and served as such for ten years. he was also secretary to the paterson & hudson river railroad (now part of the erie r. r.), holding that office at the time of his death. he was active in the national guard of new jersey, having been major and judge advocate, and was prominent in masonic circles and in various clubs. his wife, who was miss ida e. hughes, died april 24, 1878. one daughter, ida, survives. van ness act overthrown. on february 2 the court of errors and appeals of this state declared the van ness prohibition enforcement act unconstitutional. this decision reverses the supreme court in the three test cases involving the constitutionality of the enforcement act and sets aside the opinion written in the lower court by mr. justice minturn, presumably concurred in by justices trenchard and bergen, who heard the argument below. had they sat in the full court there would have been so close a division that the court would have stood, as we see it, almost even. the news comes to us just as we are going to press, so that the text of the decisions and dissents is not available. the newspapers state, however, that four opinions were filed and that results on single propositions tended to sustain the constitutionality of procedures while as a whole the act was overthrown. says one newspaper: "on the question of a jury trial, the justices found that the denial of it was proper, six votes to five. that the act was not unconstitutional in describing as a misdemeanor what the federal volstead act describes as a crime, the court agrees six to six, which upholds the act. on the two questions of whether the act was properly described in its title, and whether the functions put upon the magistrates by it could properly be exercised, the court upholds it nine to two. in other words, each one of these features is in itself constitutional. but there are eight justices who disagree with it on one point or another and only four who found nothing to disagree with. therefore, we have the curious phenomenon of a piece of legislation constitutional in each separate part, but under which, as it stands, it is impossible to secure a conviction that will be affirmed. in other words, the act will not stand as it is." chancellor walker devoted the main part of his opinion to consideration of the constitutional question involving the right of indictment and trial by jury, in which he held that the act was defective. among other things he said: "it is almost superfluous to say that the proceedings under view are void because there has been no indictment, as that is a mere corollary to the proposition that they are void because the defendant was denied the right of trial by jury. no one can be put upon trial before a traverse jury in new jersey for a commission of a crime unless upon the presentment of indictment of a grand jury, except in cases of impeachment or in cases cognizable by justices of the peace (or certain military or naval cases)." chief justice gummere's opinion was concurred in by justice swayze and judges gardner, ackerson and van buskirk. it approached the subject from a different angle than the chancellor, reaching the conclusion that, with the passage of the eighteenth amendment, the state had to surrender part of its police power to the federal government, and therefore was bound to legislate in conformity with the volstead act, which, passed under authority of the federal constitution, becomes the supreme law of the land. justice kalisch held that the supreme law of the land, embodied in the volstead act, having made certain offenses a crime, it was not within the power of the state to classify them as petty offenders. consideration was given by judge white to the questions relative to the right of trial by jury and the alleged erroneous interpretation on the question of concurrent power. as to the first objection, that relating to the right of trial by jury, judge white said he thought the real underlying historically established test depends upon the character of the offense involved rather than upon the penalty imposed. "the offense must be a petty and trivial violation of regulations established under the police power of the state in order that the offender may be summarily tried, convicted and punished without indictment by a grand jury and without trial by a petit jury." it must, of course, judge white said, be assumed that the punishment for a petty and trivial offense will also be comparatively petty and trivial, otherwise it would violate another provision of the state constitution which prohibits cruel and unusual punishment. transcriber notes: passages in italics were indicated by _underscores_. small caps were replaced with all caps. errors in punctuations and inconsistent hyphenation were not corrected unless otherwise noted. on page 38, a single quote was added after "and no longer" on page 48, "increditable" was replaced with "incredible". on page 48, "canot" was replaced with "cannot". on page 52, "execuetd" was replaced with "executed". on page 58, "nighttime" was replaced with "night-time". on page 60, a dash was added before "japan advertiser". on page 64, "qustions" was replaced with "questions". transcribed from the 1903 t. & t. clark edition by david price, email ccx074@coventry.ac.uk the oldest code of laws in the world the code of laws promulgated by hammurabi, king of babylon b.c. 2285-2242 _translated_ by c. h. w. johns, m.a. lecturer in assyriology, queens' college, cambridge author of "assyrian deeds and documents" "an assyrian doomsday book" edinburgh t. & t. clark, 38 george street 1903 printed by morrison and gibb limited for t. & t. clark, edinburgh london: simpkin, marshall, hamilton, kent, and co. limited new york: charles scribner's sons first impression . . . _february_ 1903. second impression . . . _march_ 1903. third impression . . . _may_ 1903. fourth impression . . . _june_ 1903. "the discovery and decipherment of this code is the greatest event in biblical archaeology for many a day. a translation of the code, done by mr. johns of queens' college, cambridge, the highest living authority on this department of study, has just been published by messrs. t. & t. clark in a cheap and attractive booklet. winckler says it is the most important babylonian record which has thus far been brought to light."--_the expository times_. introduction the code of hammurabi is one of the most important monuments in the history of the human race. containing as it does the laws which were enacted by a king of babylonia in the third millennium b.c., whose rule extended over the whole of mesopotamia from the mouths of the rivers tigris and euphrates to the mediterranean coast, we must regard it with interest. but when we reflect that the ancient hebrew tradition ascribed the migration of abraham from ur of the chaldees to this very period, and clearly means to represent their tribe father as triumphing over this very same hammurabi (amraphel, gen. xiv. 1), we can hardly doubt that these very laws were part of that tradition. at any rate, they must have served to mould and fix the ideas of right throughout that great empire, and so form the state of society in canaan when, five hundred years later, the hebrews began to dominate that region. such was the effect produced on the minds of succeeding generations by this superb codification of the judicial decisions of past ages, which had come to be regarded as 'the right,' that two thousand years and more later it was made a text-book for study in the schools of babylonia, being divided for that purpose into some twelve chapters, and entitled, after the semitic custom, _ninu ilu sirum_, from its opening words. in assyria also, in the seventh century b.c., it was studied in a different edition, apparently under the name of 'the judgments of righteousness which hammurabi, the great king, set up.' these facts point to it as certain to affect jewish views before and after the exile, in a way that we may expect to find as fundamental as the babylonian influence in cosmology or religion. for many years fragments have been known, have been studied, and from internal evidence ascribed to the period of the first dynasty of babylon, even called by the name code hammurabi. it is just cause for pride that assyriology, so young a science as only this year to have celebrated the centenary of its birth, is able to emulate astronomy and predict the discovery of such bright stars as this. but while we certainly should have directed our telescopes to babylonia for the rising of this light from the east, it was really in elam, at susa, the old persepolis, that the find was made. the elamites were the great rivals of babylonia for centuries, and it seems likely that some elamite conqueror carried off the stone from a temple at sippara, in babylonia. however that may be, we owe it to the french government, who have been carrying on explorations at susa for years under the superintendence of m. j. de morgan, that a monument, only disinterred in january, has been copied, transcribed, translated, and published, in a superb quarto volume, by october. the ancient text is reproduced by photogravure in a way that enables a student to verify word by word what the able editor, father v. scheil, _professeur a l'ecole des hautes-etudes_, has given as his reading of the archaic signs. the volume, which appears as _tome iv., textes elamites-semitiques_, of the _memoires de la delegation en perse_ (paris, leroux, 1902), is naturally rather expensive for the ordinary reader. besides, the rendering of the eminent french savant, while distinguished by that clear, neat phrasing which is so charming a feature of all his work, is often rather a paraphrase than a translation. the ordinary reader who desires to estimate for himself the importance of the new monument will be forced to wonder how and why the same word in the original gets such different renderings. prolonged study will be needed to bring out fully the whole meaning of many passages, and it may conduce to such a result to present the public with an alternative rendering in an english dress. needless to say, scholars will continue to use scheil's edition as the ultimate source, but for comparative purposes a literal translation may be welcome as an introduction. the monument itself consists of a block of black diorite, nearly eight feet high, found in pieces, but readily rejoined. it contains on the obverse a very interesting representation of the king hammurabi, receiving his laws from the seated sun-god samas, 'the judge of heaven and earth.' then follow, on the obverse, sixteen columns of writing with 1114 lines. there were five more columns on this side, but they have been erased and the stone repolished, doubtless by the elamite conqueror, who meant to inscribe his name and titles there. as we have lost those five columns we may regret that he did not actually do this, but there is now no trace of any hint as to who carried off the stone. on the reverse side are twenty-eight columns with more than 2500 lines of inscription. a great space, some 700 lines, is devoted by the king to setting out his titles, his glory, his care for his subjects, his veneration of his gods, and incidentally revealing the cities and districts under his rule, with many interesting hints as to local cults. he also invokes blessing on those who should preserve and respect his monument, and curses those who should injure or remove it. a translation of this portion is not given, as it is unintelligible without copious comment and is quite foreign to the purpose of this book, which aims solely at making the code intelligible. i desire to express my obligations to dr. f. carr for his many kind suggestions as to the meaning of the code. the index will, it is hoped, serve more or less as a digest of the code. one great difficulty of any translation of a law document must always be that the technical expressions of one language cannot be rendered in terms that are co-extensive. the rendering will have implications foreign to the original. an attempt to minimise misconceptions is made by suggesting alternative renderings in the index. further, by labelling a certain section, as the law of incest, for example, one definitely fixes the sense in which the translation is to be read. hence it is hoped that the index will be no less helpful than the translation in giving readers an idea of what the code really meant. no doubt this remarkable monument will be made the subject of many valuable monographs in the future, which will greatly elucidate passages now obscure. but it was thought that the interest of the subject warranted an immediate issue of an english translation, which would place the chief features of the code before a wider public than those who could read the original. the present translation is necessarily tentative in many places, but it is hoped marks an advance over those already published. dr. h. winckler's rendering of the code came into my hands after this work was sent to the publishers, and i have not thought it necessary to withdraw any of my renderings. in some points he has improved upon professor scheil's work, in other points he is scarcely so good. but any discussion is not in place here. i gratefully acknowledge my obligations to both, but have used an independent judgment all through. i hope shortly to set out my reasons for the differences between us in a larger work. a few of dr. winckler's renderings are quoted in the index, and marked--winckler's tr. c. h. w. johns. cambridge, _january_ 31, 1903. the text of the code section 1. if a man weave a spell and put a ban upon a man, and has not justified himself, he that wove the spell upon him shall be put to death. section 2. if a man has put a spell upon a man, and has not justified himself, he upon whom the spell is laid shall go to the holy river, he shall plunge into the holy river, and if the holy river overcome him, he who wove the spell upon him shall take to himself his house. if the holy river makes that man to be innocent, and has saved him, he who laid the spell upon him shall be put to death. he who plunged into the holy river shall take to himself the house of him who wove the spell upon him. section 3. if a man, in a case pending judgement, has uttered threats against the witnesses, or has not justified the word that he has spoken, if that case be a capital suit, that man shall be put to death. section 4. if he has offered corn or money to the witnesses, he shall himself bear the sentence of that case. section 5. if a judge has judged a judgement, decided a decision, granted a sealed sentence, and afterwards has altered his judgement, that judge, for the alteration of the judgement that he judged, one shall put him to account, and he shall pay twelvefold the penalty which was in the said judgement, and in the assembly one shall expel him from his judgement seat, and he shall not return, and with the judges at a judgement he shall not take his seat. section 6. if a man has stolen the goods of temple or palace, that man shall be killed, and he who has received the stolen thing from his hand shall be put to death. section 7. if a man has bought silver, gold, manservant or maidservant, ox or sheep or ass, or anything whatever its name, from the hand of a man's son, or of a man's slave, without witness and bonds, or has received the same on deposit, that man has acted the thief, he shall be put to death. section 8. if a man has stolen ox or sheep or ass, or pig, or ship, whether from the temple or the palace, he shall pay thirtyfold. if he be a poor man, he shall render tenfold. if the thief has nought to pay, he shall be put to death. section 9. if a man who has lost something of his, something of his that is lost has been seized in the hand of a man, the man in whose hand the lost thing has been seized has said, 'a giver gave it me,' or 'i bought it before witnesses,' and the owner of the thing that is lost has said, 'verily, i will bring witnesses that know my lost property,' the buyer has brought the giver who gave it him and the witnesses before whom he bought it, and the owner of the lost property has brought the witnesses who know his lost property, the judge shall see their depositions, the witnesses before whom the purchase was made and the witnesses knowing the lost property shall say out before god what they know; and if the giver has acted the thief he shall be put to death, the owner of the lost property shall take his lost property, the buyer shall take the money he paid from the house of the giver. section 10. if the buyer has not brought the giver who gave it him and the witnesses before whom he bought, and the owner of the lost property has brought the witnesses knowing his lost property, the buyer has acted the thief, he shall be put to death; the owner of the lost property shall take his lost property. section 11. if the owner of the lost property has not brought witnesses knowing his lost property, he has lied, he has stirred up strife, he shall be put to death. section 12. if the giver has betaken himself to his fate, the buyer shall take from the house of the giver fivefold as the penalty of that case. section 13. if that man has not his witnesses near, the judge shall set him a fixed time, up to six months, and if within six months he has not driven in his witnesses, that man has lied, he himself shall bear the blame of that case. section 14. if a man has stolen the son of a freeman, he shall be put to death. section 15. if a man has caused either a palace slave or palace maid, or a slave of a poor man or a poor man's maid, to go out of the gate, he shall be put to death. section 16. if a man has harboured in his house a manservant or a maidservant, fugitive from the palace, or a poor man, and has not produced them at the demand of the commandant, the owner of that house shall be put to death. section 17. if a man has captured either a manservant or a maidservant, a fugitive, in the open country and has driven him back to his master, the owner of the slave shall pay him two shekels of silver. section 18. if that slave will not name his owner he shall drive him to the palace, and one shall enquire into his past, and cause him to return to his owner. section 19. if he confine that slave in his house, and afterwards the slave has been seized in his hand, that man shall be put to death. section 20. if the slave has fled from the hand of his captor, that man shall swear by the name of god, to the owner of the slave, and shall go free. section 21. if a man has broken into a house, one shall kill him before the breach and bury him in it (?). section 22. if a man has carried on brigandage, and has been captured, that man shall be put to death. section 23. if the brigand has not been caught, the man who has been despoiled shall recount before god what he has lost, and the city and governor in whose land and district the brigandage took place shall render back to him whatever of his was lost. section 24. if it was a life, the city and governor shall pay one mina of silver to his people. section 25. if in a man's house a fire has been kindled, and a man who has come to extinguish the fire has lifted up his eyes to the property of the owner of the house, and has taken the property of the owner of the house, that man shall be thrown into that fire. section 26. if either a ganger or a constable, whose going on an errand of the king has been ordered, goes not, or hires a hireling and sends him in place of himself, that ganger or constable shall be put to death; his hireling shall take to himself his house. section 27. if a ganger or a constable, who is diverted to the fortresses of the king, and after him one has given his field and his garden to another, and he has carried on his business, if he returns and regains his city, one shall return to him his field and his garden, and he shall carry on his business himself. section 28. if a ganger or a constable who is diverted to the fortresses of the king, his son be able to carry on the business, one shall give him field and garden and he shall carry on his father's business. section 29. if his son is young and is not able to carry on his father's business, one-third of the field and garden shall be given to his mother, and his mother shall rear him. section 30. if a ganger or a constable has left alone his field, or his garden, or his house, from the beginning of his business, and has caused it to be waste, a second after him has taken his field, his garden, or his house, and has gone about his business for three years, if he returns and regains his city, and would cultivate his field, his garden, and his house, one shall not give them to him; he who has taken them and carried on his business shall carry it on. section 31. if it is one year only and he had let it go waste, and he shall return, one shall give his field, his garden, and his house, and he shall carry on his business. section 32. if a ganger or a constable who is diverted on an errand of the king's, a merchant has ransomed him and caused him to regain his city, if in his house there is means for his ransom, he shall ransom his own self; if in his house there is no means for his ransom, he shall be ransomed from the temple of his city; if in the temple of his city there is not means for his ransom, the palace shall ransom him. his field, his garden, and his house shall not be given for his ransom. section 33. if either a governor or a magistrate has taken to himself the men of the levy, or has accepted and sent on the king's errand a hired substitute, that governor or magistrate shall be put to death. section 34. if either a governor or a magistrate has taken to himself the property of a ganger, has plundered a ganger, has given a ganger to hire, has stolen from a ganger in a judgement by high-handedness, has taken to himself the gift the king has given the ganger, that governor or magistrate shall be put to death. section 35. if a man has bought the cattle or sheep which the king has given to the ganger from the hand of the ganger, he shall be deprived of his money. section 36. the field, garden, and house of a ganger, or constable, or a tributary, he shall not give for money. section 37. if a man has bought the field, garden, or house of a ganger, a constable, or a tributary, his tablet shall be broken and he shall be deprived of his money. the field, garden, or house he shall return to its owner. section 38. the ganger, constable, or tributary shall not write off to his wife, or his daughter, from the field, garden, or house of his business, and he shall not assign it for his debt. section 39. from the field, garden, and house which he has bought and acquired, he may write off to his wife or his daughter and give for his debt. section 40. a votary, merchant, or foreign sojourner may sell his field, his garden, or his house; the buyer shall carry on the business of the field, garden, or house which he has bought. section 41. if a man has bartered for the field, garden, or house of a ganger, constable, or tributary, and has given exchanges, the ganger, constable, or tributary shall return to his field, garden, or house, and shall keep the exchanges given him. section 42. if a man has taken a field to cultivate and has not caused the corn to grow in the field, and has not done the entrusted work on the field, one shall put him to account and he shall give corn like its neighbour. section 43. if he has not cultivated the field and has left it to itself, he shall give corn like its neighbour to the owner of the field, and the field he left he shall break up with hoes and shall harrow it and return to the owner of the field. section 44. if a man has taken on hire an unreclaimed field for three years to open out, and has left it aside, has not opened the field, in the fourth year he shall break it up with hoes, he shall hoe it, and harrow it, and return to the owner of the field, and he shall measure out ten _gur_ of corn _per gan_. section 45. if a man has given his field for produce to a cultivator, and has received the produce of his field, and afterwards a thunderstorm has ravaged the field or carried away the produce, the loss is the cultivator's. section 46. if he has not received the produce of his field, and has given the field either for one-half or for one-third, the corn that is in the field the cultivator and the owner of the field shall share according to the tenour of their contract. section 47. if the cultivator, because in the former year he did not set up his dwelling, has assigned the field to cultivation, the owner of the field shall not condemn the cultivator; his field has been cultivated, and at harvest time he shall take corn according to his bonds. section 48. if a man has a debt upon him and a thunderstorm ravaged his field or carried away the produce, or the corn has not grown through lack of water, in that year he shall not return corn to the creditor, he shall alter his tablet and he shall not give interest for that year. section 49. if a man has taken money from a merchant and has given to the merchant a field planted with corn or sesame, and said to him, 'cultivate the field, reap and take for thyself the corn and sesame which there is,' if the cultivator causes to grow corn or sesame in the field, at the time of harvest the owner of the field forsooth shall take the corn or sesame which is in the field and shall give corn for the money which he took from the merchant, and for its interests and for the dwelling of the cultivator, to the merchant. section 50. if the field was cultivated or the field of sesame was cultivated when he gave it, the owner of the field shall take the corn or sesame which is in the field and shall return the money and its interests to the merchant. section 51. if he has not money to return, the sesame, according to its market price for the money and its interest which he took from the merchant, according to the standard fixed by the king, he shall give to the merchant. section 52. if the cultivator has not caused corn or sesame to grow in the field, he shall not alter his bonds. section 53. if a man has neglected to strengthen his bank of the canal, has not strengthened his bank, a breach has opened out itself in his bank, and the waters have carried away the meadow, the man in whose bank the breach has been opened shall render back the corn which he has caused to be lost. section 54. if he is not able to render back the corn, one shall give him and his goods for money, and the people of the meadow whose corn the water has carried away shall share it. section 55. if a man has opened his runnel to water and has neglected it, and the field of his neighbour the waters have carried away, he shall pay corn like his neighbour. section 56. if a man has opened the waters, and the plants of the field of his neighbour the waters have carried away, he shall pay ten _gur_ of corn _per gan_. section 57. if a shepherd has caused the sheep to feed on the green corn, has not come to an agreement with the owner of the field, without the consent of the owner of the field has made the sheep feed off the field, the owner shall reap his fields, the shepherd who without consent of the owner of the field has fed off the field with sheep shall give over and above twenty _gur_ of corn _per gan_ to the owner of the field. section 58. if from the time that the sheep have gone up from the meadow, and the whole flock has passed through the gate, the shepherd has laid his sheep on the field and has caused the sheep to feed off the field, the shepherd who has made them feed off the field one shall watch, and at harvest time he shall measure out sixty _gur_ of corn _per gan_ to the owner of the field. section 59. if a man without the consent of the owner of the orchard has cut down a tree in a man's orchard, he shall pay half a mina of silver. section 60. if a man has given a field to a gardener to plant a garden and the gardener has planted the garden, four years he shall rear the garden, in the fifth year the owner of the garden and the gardener shall share equally, the owner of the garden shall cut off his share and take it. section 61. if the gardener has not included all the field in the planting, has left a waste place, he shall set the waste place in the share which he takes. section 62. if the field which has been given him to plant he has not planted as a garden, if it was corn land, the gardener shall measure out corn to the owner of the field, like its neighbour, as produce of the field for the years that are neglected, and he shall do the ordered work on the field and return to the owner of the field. section 63. if the field was unreclaimed land, he shall do the ordered work on the field and return it to the owner of the field and measure out ten _gur_ of corn _per gan_ for each year. section 64. if a man has given his garden to a gardener to farm, the gardener as long as he holds the garden shall give to the owner of the garden two-thirds from the produce of the garden, and he himself shall take one-third. section 65. if the gardener does not farm the garden and has diminished the yield, he shall measure out the yield of the garden like its neighbour. note.--here five columns of the monument have been erased, only the commencing characters of column xvii. being visible. the subjects of this last part included the further enactments concerning the rights and duties of gardeners, the whole of the regulations concerning houses let to tenants, and the relationships of the merchant to his agents, which continue on the obverse of the monument. [see page 58.] scheil estimates the lost portion at 35 sections, and following him we recommence with section 100. . . . the interests of the money, as much as he took, he shall write down, and when he has numbered his days he shall answer his merchant. section 101. if where he has gone he has not seen prosperity, he shall make up and return the money he took, and the agent shall give to the merchant. section 102. if a merchant has given to the agent money as a favour, and where he has gone he has seen loss, the full amount of money he shall return to the merchant. section 103. if while he goes on his journey the enemy has made him quit whatever he was carrying, the agent shall swear by the name of god and shall go free. section 104. if the merchant has given to the agent corn, wool, oil, or any sort of goods, to traffic with, the agent shall write down the price and hand over to the merchant; the agent shall take a sealed memorandum of the price which he shall give to the merchant. section 105. if an agent has forgotten and has not taken a sealed memorandum of the money he has given to the merchant, money that is not sealed for, he shall not put in his accounts. section 106. if an agent has taken money from a merchant and his merchant has disputed with him, that merchant shall put the agent to account before god and witnesses concerning the money taken, and the agent shall give to the merchant the money as much as he has taken threefold. section 107. if a merchant has wronged an agent and the agent has returned to his merchant whatever the merchant gave him, the merchant has disputed with the agent as to what the agent gave him, that agent shall put the merchant to account before god and witnesses, and the merchant because he disputed the agent shall give to the agent whatever he has taken sixfold. section 108. if a wine merchant has not received corn as the price of drink, has received silver by the great stone, and has made the price of drink less than the price of corn, that wine merchant one shall put her to account and throw her into the water. section 109. if a wine merchant has collected a riotous assembly in her house and has not seized those rioters and driven them to the palace, that wine merchant shall be put to death. section 110. if a votary, a lady, who is not living in the convent, has opened a wine shop or has entered a wine shop for drink, that woman one shall burn her. section 111. if a wine merchant has given sixty _ka_ of best beer at harvest time for thirst, she shall take fifty _ka_ of corn. section 112. if a man stays away on a journey and has given silver, gold, precious stones, or treasures of his hand to a man, has caused him to take them for transport, and that man whatever was for transport, where he has transported has not given and has taken to himself, the owner of the transported object, that man, concerning whatever he had to transport and gave not, shall put him to account, and that man shall give to the owner of the transported object fivefold whatever was given him. section 113. if a man has corn or money upon a man, and without consent of the owner of the corn has taken corn from the heap or from the store, that man for taking of the corn without consent of the owner of the corn from the heap or from the store, one shall put him to account, and he shall return the corn as much as he has taken, and shall lose all that he gave whatever it be. section 114. if a man has not corn or money upon a man and levies a distraint, for every single distraint he shall pay one-third of a mina. section 115. if a man has corn or money upon a man and has levied a distraint, and the distress in the house of his distrainer dies a natural death, that case has no penalty. section 116. if the distress has died in the house of his distrainer, of blows or of want, the owner of the distress shall put his merchant to account, and if he be the son of a freeman (that has died), his son one shall kill; if the slave of a free-man, he shall pay one-third of a mina of silver, and he shall lose all that he gave whatever it be. section 117. if a man a debt has seized him, and he has given his wife, his son, his daughter for the money, or has handed over to work off the debt, for three years they shall work in the house of their buyer or exploiter, in the fourth year he shall fix their liberty. section 118. if he has handed over a manservant or a maidservant to work off a debt, and the merchant shall remove and sell them for money, no one can object. section 119. if a debt has seized a man, and he has handed over for the money a maidservant who has borne him children, the money the merchant paid him the owner of the maid shall pay, and he shall ransom his maid. section 120. if a man has heaped up his corn in a heap in the house of a man, and in the granary a disaster has taken place, or the owner of the house has opened the granary and taken the corn, or has disputed as to the total amount of the corn that was heaped up in his house, the owner of the corn shall recount his corn before god, the owner of the house shall make up and return the corn which he took and shall give to the owner of the corn. section 121. if a man has heaped up corn in the house of a man, he shall give as the price of storage five _ka_ of corn _per gur_ of corn _per annum_. section 122. if a man shall give silver, gold, or anything whatever, to a man on deposit, all whatever he shall give he shall shew to witnesses and fix bonds and shall give on deposit. section 123. if without witness and bonds he has given on deposit, and where he has deposited they keep disputing him, this case has no remedy. section 124. if a man has given silver, gold, or anything whatever to a man on deposit before witnesses and he has disputed with him, one shall put that man to account, and whatever he has disputed he shall make up and shall give. section 125. if a man has given anything of his on deposit, and where he gave it, either by housebreaking or by rebellion, something of his has been lost, along with something of the owner of the house, the owner of the house who has defaulted all that was given him on deposit and has been lost, he shall make good and render to the owner of the goods, the owner of the house shall seek out whatever of his is lost and take it from the thief. section 126. if a man has lost nothing of his, but has said that something of his is lost, has exaggerated his loss, since nothing of his is lost, his loss he shall recount before god, and whatever he has claimed he shall make up and shall give to his loss. section 127. if a man has caused the finger to be pointed against a votary, or a man's wife, and has not justified himself, that man they shall throw down before the judge and brand his forehead. section 128. if a man has married a wife and has not laid down her bonds, that woman is no wife. section 129. if the wife of a man has been caught in lying with another male, one shall bind them and throw them into the waters. if the owner of the wife would save his wife or the king would save his servant (he may). section 130. if a man has forced the wife of a man who has not known the male and is dwelling in the house of her father, and has lain in her bosom and one has caught him, that man shall be killed, the woman herself shall go free. section 131. if the wife of a man her husband has accused her, and she has not been caught in lying with another male, she shall swear by god and shall return to her house. section 132. if a wife of a man on account of another male has had the finger pointed at her, and has not been caught in lying with another male, for her husband she shall plunge into the holy river. section 133. if a man has been taken captive and in his house there is maintenance, his wife has gone out from her house and entered into the house of another, because that woman has not guarded her body, and has entered into the house of another, one shall put that woman to account and throw her into the waters. section 134. if a man has been taken captive and in his house there is no maintenance, and his wife has entered into the house of another, that woman has no blame. section 135. if a man has been taken captive and in his house there is no maintenance before her, his wife has entered into the house of another and has borne children, afterwards her husband has returned and regained his city, that woman shall return to her bridegroom, the children shall go after their father. section 136. if a man has left his city and fled, after him his wife has entered the house of another, if that man shall return and has seized his wife, because he hated his city and fled, the wife of the truant shall not return to her husband. section 137. if a man has set his face to put away his concubine who has borne him children or his wife who has granted him children, to that woman he shall return her her marriage portion and shall give her the usufruct of field, garden, and goods, and she shall bring up her children. from the time that her children are grown up, from whatever is given to her children they shall give her a share like that of one son, and she shall marry the husband of her choice. section 138. if a man has put away his bride who has not borne him children, he shall give her money as much as her dowry, and shall pay her the marriage portion which she brought from her father's house, and shall put her away. section 139. if there was no dowry, he shall give her one mina of silver for a divorce. section 140. if he is a poor man, he shall give her one-third of a mina of silver. section 141. if the wife of a man who is living in the house of her husband has set her face to go out and has acted the fool, has wasted her house, has belittled her husband, one shall put her to account, and if her husband has said, 'i put her away,' he shall put her away and she shall go her way, he shall not give her anything for her divorce. if her husband has not said 'i put her away,' her husband shall marry another woman, that woman as a maidservant shall dwell in the house of her husband. section 142. if a woman hates her husband and has said 'thou shalt not possess me,' one shall enquire into her past what is her lack, and if she has been economical and has no vice, and her husband has gone out and greatly belittled her, that woman has no blame, she shall take her marriage portion and go off to her father's house. section 143. if she has not been economical, a goer about, has wasted her house, has belittled her husband, that woman one shall throw her into the waters. section 144. if a man has espoused a votary, and that votary has given a maid to her husband and has brought up children, that man has set his face to take a concubine, one shall not countenance that man, he shall not take a concubine. section 145. if a man has espoused a votary, and she has not granted him children and he has set his face to take a concubine, that man shall take a concubine, he shall cause her to enter into his house. that concubine he shall not put on an equality with the wife. section 146. if a man has espoused a votary, and she has given a maid to her husband and she has borne children, afterwards that maid has made herself equal with her mistress, because she has borne children her mistress shall not sell her for money, she shall put a mark upon her and count her among the maidservants. section 147. if she has not borne children her mistress may sell her for money. section 148. if a man has married a wife and a sickness has seized her, he has set his face to marry a second wife, he may marry her, his wife whom the sickness has seized he shall not put her away, in the home she shall dwell, and as long as she lives he shall sustain her. section 149. if that woman is not content to dwell in the house of her husband, he shall pay her her marriage portion which she brought from her father's house, and she shall go off. section 150. if a man to his wife has set aside field, garden, house, or goods, has left her a sealed deed, after her husband her children shall not dispute her, the mother after her to her children whom she loves shall give, to brothers she shall not give. section 151. if a woman, who is dwelling in the house of a man, her husband has bound himself that she shall not be seized on account of a creditor of her husband's, has granted a deed, if that man before he married that woman had a debt upon him, the creditor shall not seize his wife, and if that woman before she entered the man's house had a debt upon her, her creditor shall not seize her husband. section 152. if from the time that that woman entered into the house of the man a debt has come upon them, both together they shall answer the merchant. section 153. if a man's wife on account of another male has caused her husband to be killed, that woman upon a stake one shall set her. section 154. if a man has known his daughter, that man one shall expel from the city. section 155. if a man has betrothed a bride to his son and his son has known her, and he afterwards has lain in her bosom and one has caught him, that man one shall bind and cast her into the waters. section 156. if a man has betrothed a bride to his son and his son has not known her, and he has lain in her bosom, he shall pay her half a mina of silver and shall pay to her whatever she brought from her father's house, and she shall marry the husband of her choice. section 157. if a man, after his father, has lain in the bosom of his mother, one shall burn them both of them together. section 158. if a man, after his father, has been caught in the bosom of her that brought him up, who has borne children, that man shall be cut off from his father's house. section 159. if a man who has brought in a present to the house of his father-in-law, has given a dowry, has looked upon another woman, and has said to his father-in-law, 'thy daughter i will not marry,' the father of the daughter shall take to himself all that he brought him. section 160. if a man has brought in a present to the house of his father-in-law, has given a dowry, and the father of the daughter has said, 'my daughter i will not give thee,' he shall make up and return everything that he brought him. section 161. if a man has brought in a present to the house of his father-in-law, has given a dowry, and a comrade of his has slandered him, his father-in-law has said to the claimant of the wife, 'my daughter thou shalt not espouse,' he shall make up and return all that he brought him, and his comrade shall not marry his wife. section 162. if a man has married a wife and she has borne him children, and that woman has gone to her fate, her father shall have no claim on her marriage portion, her marriage portion is her children's forsooth. section 163. if a man has married a wife, and she has not granted him children, that woman has gone to her fate, if his father-in-law has returned him the dowry that that man brought to the house of his fatherin-law, her husband shall have no claim on the marriage portion of that woman, her marriage portion belongs to the house of her father forsooth. section 164. if his father-in-law has not returned him the dowry, he shall deduct all her dowry from his marriage portion and shall return her marriage portion to the house of her father. section 165. if a man has apportioned to his son, the first in his eyes, field, garden, and house, has written him a sealed deed, after the father has gone to his fate, when the brothers divide, the present his father gave him he shall take, and over and above he shall share equally in the goods of the father's house. section 166. if a man, in addition to the children which he has possessed, has taken a wife, for his young son has not taken a wife, after the father has gone to his fate, when the brothers divide, from the goods of the father's house to their young brother who has not taken a wife, beside his share, they shall assign him money as a dowry and shall cause him to take a wife. section 167. if a man has taken a wife, and she has borne him sons, that woman has gone to her fate, after her, he has taken to himself another woman and she has borne children, afterwards the father has gone to his fate, the children shall not share according to their mothers, they shall take the marriage portions of their mothers and shall share the goods of their father's house equally. section 168. if a man has set his face to cut off his son, has said to the judge 'i will cut off my son,' the judge shall enquire into his reasons, and if the son has not committed a heavy crime which cuts off from sonship, the father shall not cut off his son from sonship. section 169. if he has committed against his father a heavy crime which cuts off from sonship, for the first time the judge shall bring back his face; if he has committed a heavy crime for the second time, the father shall cut off his son from sonship. section 170. if a man his wife has borne him sons, and his maidservant has borne him sons, the father in his lifetime has said to the sons which the maidservant has borne him 'my sons,' has numbered them with the sons of his wife, after the father has gone to his fate, the sons of the wife and the sons of the maidservant shall share equally in the goods of the father's house; the sons that are sons of the wife at the sharing shall choose and take. section 171. and if the father in his lifetime, to the sons which the maidservant bore him, has not said 'my sons,' after the father has gone to his fate the sons of the maid shall not share with the sons of the wife in the goods of the father's house, one shall assign the maidservant and her sons freedom; the sons of the wife shall have no claim on the sons of the maidservant for servitude, the wife shall take her marriage portion and the settlement which her husband gave her and wrote in a deed for her and shall dwell in the dwelling of her husband, as long as lives she shall enjoy, for money she shall not give, after her they are her sons' forsooth. section 172. if her husband did not give her a settlement, one shall pay her her marriage portion, and from the goods of her husband's house she shall take a share like one son. if her sons worry her to leave the house, the judge shall enquire into her reasons and shall lay the blame on the sons, that woman shall not go out of her husband's house. if that woman has set her face to leave, the settlement which her husband gave her she shall leave to her sons, the marriage portion from her father's house she shall take and she shall marry the husband of her choice. section 173. if that woman where she has entered shall have borne children to her later husband after that woman has died, the former and later sons shall share her marriage portion. section 174. if she has not borne children to her later husband, the sons of her bridegroom shall take her marriage portion. section 175. if either the slave of the palace or the slave of the poor man has taken to wife the daughter of a gentleman, and she has borne sons, the owner of the slave shall have no claim on the sons of the daughter of a gentleman for servitude. section 176. and if a slave of the palace or the slave of a poor man has taken to wife the daughter of a gentleman and, when he married her, with a marriage portion from her father's house she entered into the house of the slave of the palace, or of the slave of the poor man, and from the time that they started to keep house and acquired property, after either the servant of the palace or the servant of the poor man has gone to his fate, the daughter of the gentleman shall take her marriage portion, and whatever her husband and she from the time they started have acquired one shall divide in two parts and the owner of the slave shall take one-half, the daughter of a gentleman shall take one-half for her children. if the gentleman's daughter had no marriage portion, whatever her husband and she from the time they started have acquired one shall divide into two parts, and the owner of the slave shall take half, the gentleman's daughter shall take half for her sons. section 177. if a widow whose children are young has set her face to enter into the house of another, without consent of a judge she shall not enter. when she enters into the house of another the judge shall enquire into what is left of her former husband's house, and the house of her former husband to her later husband, and that woman he shall entrust and cause them to receive a deed. they shall keep the house and rear the little ones. not a utensil shall they give for money. the buyer that has bought a utensil of a widow's sons shall lose his money and shall return the property to its owners. section 178. if a lady, votary, or a vowed woman whose father has granted her a marriage portion, has written her a deed, in the deed he has written her has not, however, written her 'after her wherever is good to her to give,' has not permitted her all her choice, after the father has gone to his fate, her brothers shall take her field and her garden, and according to the value of her share shall give her corn, oil, and wool, and shall content her heart. if her brothers have not given her corn, oil, and wool according to the value of her share, and have not contented her heart, she shall give her field or her garden to a cultivator, whoever pleases her, and her cultivator shall sustain her. the field, garden, or whatever her father has given her she shall enjoy as long as she lives, she shall not give it for money, she shall not answer to another, her sonship is her brothers' forsooth. section 179. if a lady, a votary, or a woman vowed, whose father has granted her a marriage portion, has written her a deed, in the deed he wrote her has written her 'after her wherever is good to her to give,' has allowed to her all her choice, after the father has gone to his fate, after her wherever is good to her she shall give, her brothers have no claim on her. section 180. if a father to his daughter a votary, bride, or vowed woman has not granted a marriage portion, after the father has gone to his fate, she shall share in the goods of the father's house a share like one son, as long as she lives she shall enjoy, after her it is her brothers' forsooth. section 181. if a father has vowed to god a votary, hierodule, or _nubar_, and has not granted her a marriage portion, after the father has gone to his fate she shall share in the goods of the father's house onethird of her sonship share and shall enjoy it as long as she lives, after her it is her brothers' forsooth. section 182. if a father, to his daughter, a votary of marduk, of babylon, has not granted her a marriage portion, has not written her a deed, after the father has gone to his fate, she shall share with her brothers in the goods of the father's house, one-third of her sonship share, and shall pay no tax; a votary of marduk, after her, shall give wherever it is good to her. section 183. if a father to his daughter, a concubine, has granted her a marriage portion, has given her to a husband, has written her a deed, after the father has gone to his fate, she shall not share in the goods of the father's house. section 184. if a man to his daughter, a concubine, has not granted a marriage portion, has not given her to a husband, after the father has gone to his fate, her brothers according to the capacity of the father's house, shall grant her a marriage portion and shall give her to a husband. section 185. if a man has taken a young child 'from his waters' to sonship, and has reared him up, no one has any claim against that nursling. section 186. if a man has taken a young child to sonship, and when he took him his father and mother rebelled, that nursling shall return to his father's house. section 187. the son of a _ner-se-ga_, a palace warder, or the son of a vowed woman no one has any claim upon. section 188. if an artisan has taken a son to bring up, and has caused him to learn his handicraft, no one has any claim. section 189. if he has not caused him to learn his handicraft, that nursling shall return to his father's house. section 190. if a man the child whom he took to his sonship and has brought him up, has not numbered him with his sons, that nursling shall return to his father's house. section 191. if a man, after a young child whom he has taken to his sonship and brought him up, has made a house for himself and acquired children, and has set his face to cut off the nursling, that child shall not go his way, the father that brought him up shall give to him from his goods one-third of his sonship, and he shall go off; from field, garden, and house he shall not give him. section 192. if a son of a palace warder, or of a vowed woman, to the father that brought him up, and the mother that brought him up, has said 'thou art not my father, thou art not my mother,' one shall cut out his tongue. section 193. if a son of a palace warder, or of a vowed woman, has known his father's house, and has hated the father that brought him up or the mother that brought him up, and has gone off to the house of his father, one shall tear out his eye. section 194. if a man has given his son to a wet nurse, that son has died in the hand of the wet nurse, the wet nurse without consent of his father and his mother has procured another child, one shall put her to account, and because, without consent of his father and his mother, she has procured another child, one shall cut off her breasts. section 195. if a man has struck his father, his hands one shall cut off. section 196. if a man has caused the loss of a gentleman's eye, his eye one shall cause to be lost. section 197. if he has shattered a gentleman's limb, one shall shatter his limb. section 198. if he has caused a poor man to lose his eye or shattered a poor man's limb, he shall pay one mina of silver. section 199. if he has caused the loss of the eye of a gentleman's servant or has shattered the limb of a gentleman's servant, he shall pay half his price. section 200. if a man has made the tooth of a man that is his equal to fall out, one shall make his tooth fall out. section 201. if he has made the tooth of a poor man to fall out, he shall pay one-third of a mina of silver. section 202. if a man has struck the strength of a man who is great above him, he shall be struck in the assembly with sixty strokes of a cowhide whip. section 203. if a man of gentle birth has struck the strength of a man of gentle birth who is like himself, he shall pay one mina of silver. section 204. if a poor man has struck the strength of a poor man, he shall pay ten shekels of silver. section 205. if a gentleman's servant has struck the strength of a freeman, one shall cut off his ear. section 206. if a man has struck a man in a quarrel, and has caused him a wound, that man shall swear 'i do not strike him knowing' and shall answer for the doctor. section 207. if he has died of his blows, he shall swear, and if he be of gentle birth he shall pay half a mina of silver. section 208. if he be the son of a poor man, he shall pay one-third of a mina of silver. section 209. if a man has struck a gentleman's daughter and caused her to drop what is in her womb, he shall pay ten shekels of silver for what was in her womb. section 210. if that woman has died, one shall put to death his daughter. section 211. if the daughter of a poor man through his blows he has caused to drop that which is in her womb, he shall pay five shekels of silver. section 212. if that woman has died, he shall pay half a mina of silver. section 213. if he has struck a gentleman's maidservant and caused her to drop that which is in her womb, he shall pay two shekels of silver. section 214. if that maidservant has died, he shall pay one-third of a mina of silver. section 215. if a doctor has treated a gentleman for a severe wound with a bronze lancet and has cured the man, or has opened an abscess of the eye for a gentleman with the bronze lancet and has cured the eye of the gentleman, he shall take ten shekels of silver. section 216. if he (the patient) be the son of a poor man, he shall take five shekels of silver. section 217. if he be a gentleman's servant, the master of the servant shall give two shekels of silver to the doctor. section 218. if the doctor has treated a gentleman for a severe wound with a lancet of bronze and has caused the gentleman to die, or has opened an abscess of the eye for a gentleman with the bronze lancet and has caused the loss of the gentleman's eye, one shall cut off his hands. section 219. if a doctor has treated the severe wound of a slave of a poor man with a bronze lancet and has caused his death, he shall render slave for slave. section 220. if he has opened his abscess with a bronze lancet and has made him lose his eye, he shall pay money, half his price. section 221. if a doctor has cured the shattered limb of a gentleman, or has cured the diseased bowel, the patient shall give five shekels of silver to the doctor. section 222. if it is the son of a poor man, he shall give three shekels of silver. section 223. if a gentleman's servant, the master of the slave shall give two shekels of silver to the doctor. section 224. if a cow doctor or a sheep doctor has treated a cow or a sheep for a severe wound and cured it, the owner of the cow or sheep shall give one-sixth of a shekel of silver to the doctor as his fee. section 225. if he has treated a cow or a sheep for a severe wound and has caused it to die, he shall give a quarter of its price to the owner of the ox or sheep. section 226. if a brander without consent of the owner of the slave has branded a slave with an indelible mark, one shall cut off the hands of that brander. section 227. if a man has deceived the brander, and has caused him to brand an indelible mark on the slave, that man one shall kill him and bury him in his house, the brander shall swear, 'not knowing i branded him,' and shall go free. section 228. if a builder has built a house for a man and has completed it, he shall give him as his fee two shekels of silver _per sar_ of house. section 229. if a builder has built a house for a man and has not made strong his work, and the house he built has fallen, and he has caused the death of the owner of the house, that builder shall be put to death. section 230. if he has caused the son of the owner of the house to die, one shall put to death the son of that builder. section 231. if he has caused the slave of the owner of the house to die, he shall give slave for slave to the owner of the house. section 232. if he has caused the loss of goods, he shall render back whatever he has caused the loss of, and because he did not make strong the house he built, and it fell, from his own goods he shall rebuild the house that fell. section 233. if a builder has built a house for a man, and has not jointed his work, and the wall has fallen, that builder at his own cost shall make good that wall. section 234. if a boatman has navigated a ship of sixty _gur_ for a man, he shall give him two shekels of silver for his fee. section 235. if a boatman has navigated a ship for a man and has not made his work trustworthy, and in that same year that he worked that ship it has suffered an injury, the boatman shall exchange that ship or shall make it strong at his own expense and shall give a strong ship to the owner of the ship. section 236. if a man has given his ship to a boatman, on hire, and the boatman has been careless, has grounded the ship, or has caused it to be lost, the boatman shall render ship for ship to the owner. section 237. if a man has hired a boatman and ship, and with corn, wool, oil, dates, or whatever it be as freight, has freighted her, that boatman has been careless and grounded the ship, or has caused what is in her to be lost, the boatman shall render back the ship which he has grounded and whatever in her he has caused to be lost. section 238. if a boatman has grounded the ship of a man and has refloated her, he shall give money to half her price. section 239. if a man has hired a boatman, he shall give him six _gur_ of corn per year. section 240. if a ship that is going forward has struck a ship at anchor and has sunk her, the owner of the ship that has been sunk whatever he has lost in his ship shall recount before god, and that of the ship going forward which sunk the ship at anchor shall render to him his ship and whatever of his was lost. section 241. if a man has taken an ox on distraint, he shall pay onethird of a mina of silver. section 242. if a man has hired a working ox for one year, he shall pay four _gur_ of corn as its hire. section 243. if a milch cow, he shall give three _gur_ of corn to its owner. section 244. if a man has hired an ox or sheep and a lion has killed it in the open field, that loss is for its owner forsooth. section 245. if a man has hired an ox and through neglect or by blows has caused it to die, ox for ox to the owner of the ox he shall render. section 246. if a man has hired an ox and has crushed its foot or has cut its nape, ox for ox to the owner of the ox he shall render. section 247. if a man has hired an ox and has caused it to lose its eye, he shall pay half its price to the owner of the ox. section 248. if a man has hired an ox, and has crushed its horn, cut off its tail, or pierced its nostrils, he shall pay a quarter of its price. section 249. if a man has hired an ox, and god has struck it and it has died, the man who has hired the ox shall swear before god and shall go free. section 250. if a wild bull in his charge has gored a man and caused him to die, that case has no remedy. section 251. if the ox has pushed a man, by pushing has made known his vice, and he has not blunted his horn, has not shut up his ox, and that ox has gored a man of gentle birth and caused him to die, he shall pay half a mina of silver. section 252. if a gentleman's servant, he shall pay one-third of a mina of silver. section 253. if a man has hired a man to reside in his field and has furnished him seed, has entrusted him the oxen and harnessed them for cultivating the field--if that man has stolen the corn or plants, and they have been seized in his hands, one shall cut off his hands. section 254. if he has taken the seed, worn out the oxen, from the seed which he has hoed he shall restore. section 255. if he has hired out the oxen of the man or has stolen the corn and has not caused it to grow in the field, that man one shall put him to account and he shall measure out sixty _gur_ of corn _per gan_ of land. section 256. if his compensation he is not able to pay, one shall remove the oxen from that field. section 257. if a man has hired a harvester, he shall give him eight _gur_ of corn per year. section 258. if a man has hired an ox-driver, he shall give him six _gur_ of corn per year. section 259. if a man has stolen a watering machine from the meadow, he shall give five shekels of silver to the owner of the watering machine. section 260. if he has stolen a watering bucket or a harrow, he shall pay three shekels of silver. section 261. if a man has hired a herdsman for the cows or a shepherd for the sheep, he shall give him eight _gur_ of corn _per annum_. section 262. if a man, ox, or sheep to [this section is defaced]. section 263. if he has caused an ox or sheep which was given him to be lost, ox for ox, sheep for sheep, he shall render to their owner. section 264. if a herdsman who has had cows or sheep given him to shepherd, has received his hire, whatever was agreed, and his heart was contented, has diminished the cows, diminished the sheep, lessened the offspring, he shall give offspring and produce according to the tenour of his bonds. section 265. if a shepherd to whom cows and sheep have been given him to breed, has falsified and changed their price, or has sold them, one shall put him to account, and he shall render cows and sheep to their owner tenfold what he has stolen. section 266. if in a sheepfold a stroke of god has taken place or a lion has killed, the shepherd shall purge himself before god, and the accident to the fold the owner of the fold shall face it. section 267. if a shepherd has been careless and in a sheepfold caused a loss to take place, the shepherd shall make good the fault of the loss which he has caused to be in the fold and shall pay cows or sheep and shall give to their owner. section 268. if a man has hired an ox, for threshing, twenty _ka_ of corn is its hire. section 269. if he has hired an ass, for threshing, ten _ka_ of corn is its hire. section 270. if he has hired a calf (goat?), for threshing, one _ka_ of corn is its hire. section 271. if a man has hired oxen, a wagon, and its driver, he shall give one hundred and eighty _ka_ of corn _per diem_. section 272. if a man has hired a wagon by itself, he shall give forty _ka_ of corn _per diem_. section 273. if a man has hired a labourer, from the beginning of the year till the fifth month, he shall give six _se_ of silver _per diem_; from the sixth month to the end of the year, he shall give five _se_ of silver _per diem_. section 274. if a man shall hire an artisan-(_a_) the hire of a . . . five _se_ of silver (_b_) the hire of a brickmaker five _se_ of silver (_c_) the hire of a tailor . five _se_ of silver (_d_) the hire of a stone-cutter . _se_ of silver (_e_) the hire of a . . . _se_ of silver (_f_) the hire of a . . . _se_ of silver (_g_) the hire of a carpenter four _se_ of silver (_h_) the hire of a . . . four _se_ of silver (_i_) the hire of a . . . _se_ of silver (_j_) the hire of a builder. . . _se_ of silver _per diem_ he shall give. section 275. if a man has hired a (boat?) _per diem_, her hire is three _se_ of silver. section 276. if a man has hired a fast ship, he shall give two and a half _se_ of silver _per diem_ as her hire. section 277. if a man has hired a ship of sixty _gur_, he shall give onesixth of a shekel of silver _per diem_ as her hire. section 278. if a man has bought a manservant or a maidservant, and he has not fulfilled his month and the _bennu_ sickness has fallen upon him, he shall return him to the seller, and the buyer shall take the money he paid. section 279. if a man has bought a manservant or a maidservant and has a complaint, his seller shall answer the complaint. section 280. if a man has bought in a foreign land the manservant or the maidservant of a man, when he has come into the land, and the owner of the manservant or the maidservant has recognised his manservant or his maidservant, if the manservant or maidservant are natives without price he shall grant them their freedom. section 281. if they are natives of another land the buyer shall tell out before god the money he paid, and the owner of the manservant or the maidservant shall give to the merchant the money he paid, and shall recover his manservant or his maidservant. section 282. if a slave has said to his master 'thou art not my master,' as his slave one shall put him to account and his master shall cut off his ear. * * * * * the judgements of righteousness which hammurabi the mighty king confirmed and caused the land to take a sure guidance and a gracious rule. the following three sections, which are known to belong to the code from copies made for an assyrian king in the seventh century b.c., are given here for the sake of completeness. they obviously come within the space once occupied by the five erased columns. section x. if a man has taken money from a merchant and has given a plantation of dates to the merchant, has said to him, 'the dates that are in my plantation take for thy money,' that merchant shall not agree, the dates that are in the plantation the owner of the plantation shall take, and he shall answer to the merchant for the money and its interests according to the tenour of his bond. the dates that are over, which are in the plantation, the owner of the plantation shall take forsooth. section y. . . . the man dwelling (in the house) has given to the owner (of the house) the money of its rent in full for the year, the owner of the house has ordered the dweller to go out when his days are not full, the owner of the house, because he has ordered the dweller to leave when his days are not full, (shall give) of the money which the dweller gave him. . . . section z. if a man has to pay, in money or corn, but has not money or corn to pay with, but has goods, whatever is in his hands, before witnesses, according to what he has brought, he shall give to his merchant. the merchant shall not object, he shall receive it. index _the numbers refer to the sections of the code_. abatement, of rent, for loss of crop, 45, 46. of interest, 48. accidental loss, by storm or deluge, falls on tenant, 45. shared by landlord, if before rent is paid, 46. by drought, storm, or deluge, postpones payment of debt, 48. adjournment, for production of witnesses, 13. not to exceed six months, 13. adoption, of natural son, 185. of child of living parents, 186. parents may object, 186. votary or palace official cannot object, 187. by artisan, 188. no one can reclaim child, if he has been taught handicraft, 188. otherwise can be reclaimed, 189. adopted son must be formally acknowledged, 190. if not, returns to real parents on death of adoptive father, 190. adopted son cannot be cut off without legal process, 191. has one-third child's share, 191. but no part of estate, 191. repudiation by adopted son severely punished, 192 ff. adultery, 129. penalty, drowning, 129. agent, relation to principal or merchant- must keep accounts, 100. of money received, 100. of interest due, 100. if unsuccessful, repays capital only, 101. if a loser, repays capital in full, 102. if robbed, can be excused payment, 103. must keep account of goods, 104. stating money value, 104. take inventory, 104. give receipt, 104. pays threefold for his defaults, 106. allotment, to ganger, constable, or tributary, 30. _see_ benefice. allowances, to divorced wife, 137. usufruct of field, garden, and goods. alteration of date for repayment, 48. called 'wetting tablet,' 48. approving lease, 44. _see_ lease. assault, of gentleman by gentleman, 202, 203. in a quarrel, 206. of poor man by poor man, 204. of gentleman by slave, 205. of pregnant woman, causing miscarriage- gentle woman, 209. poor woman, 211. slave, 213. causing her death- gentle woman, 210. poor woman, 212. slave, 214. _see_ under fines. assessment of damages- by sheep to growing crops, 57. ,, to ripe crops, 58. for cutting down tree in orchard, 59. for not carrying out terms of lease, 42, 44. for assault. _see_ fines. for carelessness. _see_ neglect. for culpable lack of skill. _see_ doctor. assignment for debt- of bare field, 49. of corn field, 50. of date plantation, x. of crop, y. of wife, child, or slave, to work off debt, 115. average yield, assessed damages, 42, 43, 44, 55, 62, 65. backbiting, 161. bailiff. _see_ reeve, ganger, constable, benefice. bailment, without witness or deed- from domestic inferior=theft, 7. banishment. _see_ exile. bearing sentence sought to be obtained. _see_ retaliation. benefice, the land, house, garden, and stock- assigned by king to ganger, constable, or tributary, 30. inalienable, 32, 36, 37. sale, or purchase, forbidden, 35. price paid forfeited, 35. not to be exchanged, 41. not to be devised to females, 38. may be deputed, 27. hereditary, 28. forfeited, by disuse, 30. may not be pledged, 38. saleable to other official (?), 40. betrothed, maiden lived in father's house, 130. bigamy, in ignorance, 135. blood money. _see_ wit. boatmen, their duties and privileges, 234-241. same word denotes boat-builder (winckler's tr.). boats, passenger, 276. freight boat, 277. building, 234. of 60 _gur_, built, 234 (winckler's tr.) collision of, 241. wreck of, 235, 236. bond, a written deed or contract- needed for legal purchase, 7. for debt, 52. for storage, 122. for legal marriage, 128. shepherd's, 264. branding, brander, 226, 227. on forehead, for slander, 127. slave without consent of owner, 226, 227. brawling, in wine shop, 109. breach of contract- by lessee, 42, 44, 256. _see_ lease, metayer, neglect. of promise, 159. breasts, cut off, 194. bride-price, a present to prospective father-in-law- usually returned with wife to bridegroom, 163. given back by husband to divorced wife, if not a mother, 138. returned to suitor, if not accepted, 160, 161. forfeited if suitor changes his mind, 159. if not given back to bridegroom with wife, deducted from marriage portion repaid to father-in-law, on death of wife, without children, 164. assessed at one mina of silver, for gentleman, 139. ,, one-third mina, for poor man, 139. to be set aside for unmarried son, by his brothers, on division of father's property, 166. brothel (?). _see_ wine shop. builder's duties and privileges, 228. of boats, 234 (winckler's tr.). burning, as penalty- for votary, opening or entering wine shop, 110. man and mother in incest, 157. thief at fire, 25. business. _see_ agent, merchant, office. buyer of benefice must discharge duties, 40. calling to account, 42, 108, 112, 113, 116, 124, 133, 141, 194, 255, 265. capital suit, 3. captives, 133, 280. carrier's privileges and responsibilities, 112. cattle, damage _feasant pauperies_, 57. changeling, foisted on parents, 194. charges, for warehousing, 121. one-sixtieth value, 121. children. _see_ custody, mother, remarriage, widow. born of wife remarried, uuder impression her husband was dead, stay with second husband, 135. not to dispute mother's settlement, 150. share equally at father's death, 165. reserving settlements by deed, 165. of second marriage to be furnished with bride-price, or portion, 166. of different mothers, share separately own mother's portions, 167. but father's property equally, 167. of bride and maid share equally, if latter acknowledged as sons in father's lifetime, former having preference, 170. otherwise, children of maid do not share, 171. of slave woman and free father are free, 171. of slave man and free mother are free, 175. these take half father's goods at death, 175. collision, 241. commission, trade on, 100-105. _see_ agent, merchant. compensation, for eviction of tenant, y. for highway robbery, 23. composition, for loss of life, 224. for bride-price, 139. concubine, divorced, 137. not allowed, if wife provides maid, 144. allowed, if votary wife has no children, 145. not to rival wife, 145. father may give daughter as, 183. and give marriage portion, 183. if so, she has no share of his goods at his death, 183. otherwise, brothers must give her a portion, 184. conjugal rights, denial of, 142. conscript. _see_ militia. constable, or bailiff, runner, 36-41. not to depute duty, 26. in enforced absence on royal business, 27. may depute, and resume on return, 27. son may be deputy, 28. provision for child, in absence, 29. neglect of benefice, 30. three years' limit, 30. one year does not forfeit, 31. captured abroad on king's business, 32. to be ransomed, 32. benefice inalienable, 33. benefice protected, 34. not to be hired out, 35. plundered, 35. oppressed, 35. sale of benefice illegal, 35. benefice not to be exchanged, 41. contract. _see_ bond. corn land, 62. corporate liability, 23, 32. corvee. _see_ militia. courtship, 159, 161. cow, in milk, hire of, 243. creditor. _see also_ merchant. must not ill treat pledge for debt, 116. must release at end of three years, 117. may sell pledged slave, on removal, 118. may not repay himself from debtor's goods, 113. crop, assigned for debt, 51. sold at king's price, 51. crown, man's. _see_ strength. cultivation of fields- operations needful, 43. custody of child, in mother, 29. cutting down trees- assessment of damage, half mina of silver per tree, 59. damage to crops, by sheep- assessed at twenty _gur per gan_, 57. to ripe crops, at sixty _gur per gan_, 58. by flooding field, 56. by cutting down trees, assessed at half mina of silver per tree, 59. damages, for breach of contract, 42, 44. for eviction from purchase, 12. for eviction from house, y. _damnum sine injuria_, 115, 118, 123, 250. date palm, plantation of, x. daughter cannot inherit benefice, 38. death penalty, inflicted for- witchcraft, 1. threatening witnesses, 3. perjury, 3. theft, 4. receiving stolen goods, 4. buying from domestic inferior, 7. taking on deposit from domestic inferior, 7. in default of multiple restitution, for theft of second order, 8. appropriation of lost properly, 9. selling lost property, 10. vexatious claim of property as lost, 11. kidnapping, 14. procuring desertion of slave, 15. harbouring fugitive slave, 18. ,, of defaulting militia, 16. detaining fugitive slave, 18. keeping recaptured slave, 19. housebreaking, 21. highway robbery, 22. theft at fire, 25. allowing seditious brawling in wine shop, 109. rape of betrothed maiden, 130. for ganger, constable, neglecting duty, 26. ,, ,, sending substitutes, 26. causing death of pregnant woman by assault, 210. for getting a slave branded unknown to owner, 227. for building so badly as to cause death of owner, 229. _see also_ burning, drowning, impalement. death of defendant, 12. debt, abatement for damage by storm, deluge, and drought, 48. not to be repaid from debtor's goods, without his consent, 113. hostages for, 117. to be well treated, 118. released after three years, 117. of man before marriage, not binding on wife, 151. of woman before marriage, not binding on husband, 151. of both after marriage, binding on both, 151. debtor's risk, 48. privileged to pay in kind, z. defamation, 161. deferred foreclosure, 48. degradation from office, 5. deification of river euphrates, 2. _delegatus non potest delegare_, 26, 33. deposit. _see_ storage, trust, warehouse, 7. not recoverable unless witnessed and sealed for, 123. from domestic inferior, illegal without witnessed contract, 7. desertion, by husband, of wife- involuntary, 133. of city and wife, 136. of adoptive parents, 193. detention of fugitive slave punished, 19. disinheritance, for incest, 159. of son, 168. not without legal process and for good cause, 168. distraint for debt, 114, 115. unjustified, fine one-third mina of silver, each time, 114. death of person taken in, 115, 110. not allowed on warehoused goods, 120. of working ox fined, 241. district liable, for highway robbery, 23. for ransom of official, 32. diverted to, perhaps 'captured in,' winckler's tr. divorce, 137, 138. wife takes her bride-price, 137. or fixed sum, one mina of silver from gentleman, 139. or fixed sum, one-third mina from poor man, 140. doctor, privileges and responsibilities, 215-221. fees for cures, 215, 221. causes death, 218-220. paid by assailant, 206. domestic inferior. _see_ minor. dowry. _see_ bride-price. drowning, as penalty for- selling drink too cheap, 109. adultery, 129. bad wife, 143. incest with daughter-in-law, 155. deserting husband's house in his enforced absence, being provided with proper maintenance, 133. dyke, 53. ear cut off as penalty, 205. endowment of office. _see_ benefice. equals, assault of, 200, 203, 206. evicted purchaser reimbursed, 9. tenant reimbursed, y. exchange, of benefice illegal, 41. exile, penalty for incest, 154. eye, torn out as penalty, 193. struck out in assault, 196. disease of, 215. cure of, fee for, ten shekels of silver, 215. loss of eye, assessed at five shekels of silver, 220. false judgement, penalty for, 5. claims for money or goods, 106, 107, 126. accusation of adultery, 131. farm. _see_ lease. fatal assault of gentleman by gentleman, 207. of gentleman by poor man, 208. favourite son, may be gifted by father, 165. in his lifetime, 165. by written deed, 165. other children no claim against, 165. takes equal share with them on father's death, 165. fees for curing wound, or disease of eye, by surgical operation- gentleman pays ten shekels of silver, 215. poor man pays five shekels of silver, 216. slave pays two shekels of silver, 216. cure of broken limb or diseased bowel- gentleman pays five shekels, 221. poor man pays three shekels, 222. slave pays two shekels, 223. cure of bad wound of ox or sheep, one-sixth of shekel, 224. for building house, two shekels _per sar_, 228. to boatman for navigating boat, two shekels, 234. warehousing goods, one-sixtieth value, 121. fines imposed for- unlawful distraint, one-third mina, 114. seducing daughter-in-law before marriage, half mina, 156. aggravated assault, gentleman on gentleman, one mina, 203. aggravated assault, poor man on poor man, ten shekels, 204. fatal wound in quarrel, gentleman to gentleman, half mina, 207. fatal wound in quarrel, poor man to poor man, third mina, 208. assault on pregnant gentlewoman, causing miscarriage, ten shekels, 209. assault on pregnant poor woman, causing miscarriage, five shekels, 211. assault on pregnant slave, causing miscarriage, two shekels, 213. assault on pregnant poor woman, causing her death, half mina, 212. assault on pregnant slave, causing her death, third mina, 214. causing death of ox or sheep, by careless operation, quarter price, 225. distraint on working ox, one-third mina, 241. mutilation of hired ox, quarter price, 248. letting vicious ox gore a man to death, half mina, 251. stealing corn or plants, on metayer, sixty _gur_ of corn _per gan_, 255. letting oxen, taken on metayer, sixty _gur_ of corn _per gan_, 255. theft of watering machine, five shekels, 259. theft of water bucket, or plough, (harrow?), three shekels, 260. (_n.b_.--fines reckoned in silver, 60 shekels to the mina.) fires, theft at, 25. floods, 45, 46, 48. forfeit of price paid in illegal purchase, 35, 37, 177. oxen and field, for neglect to cultivate, 256. forfeiture of claim- by self-help, 113. by cruelty, 116. fortress of the king, may be 'defeat of the king,' winckler's tr. foster mother, duties and liabilities, 194. freedom, of hostage for debt, after three years, 117. to marry, as she chooses, on part of divorced wife, after bringing up children, 137. daughter-in-law, seduced before marriage, 158. widow, leaving settlement to children, 172. free-men sold into slavery, to pay fine, 54. fugitive, slave, 16, 17. poor man, 16. ganger, associated with constable, _q.v_. gentleman, one of three estates, contrasted with poor man and slave, 196, 197, 199, etc. gift. _see_ favourite son. goring by ox, 250, 251. gouging out eye, 196. penalty, 196, 198. governor, duties and liabilities, 23, 33 ff. not to delegate duty, 34. nor accept substitute, 34. not to oppress subordinates, 35. granary, 113. guilty knowledge, by buyer of stolen goods, 10. hand of god, 45, 46, 48. hands cut off, penalty for- striking father, 195. causing death by careless operation on free-man, 218. branding slave, without owner's knowledge, 226. harbouring, fugitive slave, 16. militiaman, or conscript, 16. herdsmen. _see_ shepherds. highway robbery, 22. _see_ robbery. hire, of land, house, garden. _see_ lease. scale fixed by king, 44, 51. wages fixed for- boatman, 6 _gur_ of corn _per annum_, 239. working ox, 4 ,, ,, 242. cow in milk, (?) 3 ,, ,, 243. reaper 8 ,, ,, 257. thresher 6 ,, ,, 258. herdman, or shepherd, 8 ,, ,, 261. ox, for threshing, 20 _ka_ of corn _per diem_, 268. ass, for threshing, 10 ,, ,, 269. calf, for threshing, 1 _ka_ ,, ,, 270. oxen, wagon, and driver, 180 ,, ,, 271. wagon alone, 40 ,, ,, 272. labourer, first five months, 6 _se_ silver ,, 273. ,, last seven months, 5 ,, ,, 273. artisan, 5 ,, ,, 274. brickmaker, 5 ,, ,, 274. tailor, 5 ,, ,, 274. stonecutter, 5 (?) ,, ,, 274. milkman, 5 ,, ,, 274. carpenter, 4 ,, ,, 274. a _sa_, 4 ,, ,, 274. boat, 3 ,, ,, 275. passenger boat, 2.5 ,, ,, 276. freight boat of 60 _gur_, 1/6 shekel ,, 277. (_n.b_.--in corn measure, 1 _gur_=300 _ka_, worth one shekel of silver, and one shekel=80 _se_. hostage for debt. _see_ mancipium. housebreaking, 21, 125. husband. _see_ re-marriage, wife, divorce, separation. hypothecation, of crop, regulated, 49. identification of lost property, 9. ignorance, plea of, 206, 227. illegal purchase, 35, 37. impalement, as penalty, 153. for procuring husband's death, 153. incest, 154-158. of man and daughter, 154. of man and daughter-in-law, 155, 156. of man and mother, 157. of man and stepmother, 158. inheritance. _see_ share. innocent wife, separation from bad husband, 142. _see_ separation. interest on loan, etc., 49, 50, 100, x. abatement, 48. intimidation of witnesses, 3. jilting, 159. judge, duties and liabilities, 5, 9, 127, 167, 168, 172, 177. judgement, false. _see_ false. by default, 10. kidnapping, 14. king's standard, 44, 51. _see_ hire, scale. lancet, bronze, used in surgical operations, 215, 218, 220. landlord's risks, 46. lease, of house, y. field to cultivate, 42. ,, to reclaim, three years, 44. ,, to plant as garden, five years, 60. garden to till, 64. terms, not invalidated by neglect, 52. damages for not carrying _out_ terms, 63. _see_ metayer. levy. _see_ militia. _lex talionis_. _see_ retaliation. libel. _see_ slander. lion, referred to, 244, 266. local liability for- compensation for highway robbery, 23, 24. redemption of captive official, 32. loss, by burglary or rebellion, 125. of hired animal, by lion, 244. ,, by neglect, 245. ,, by blows, 245. ,, by hand of god, 249. of flock or herd, by hand of god, 266. ,, by lion, 226. of crop, when shared by landlord, 45. of interest. _see_ abatement. lost property, recovery by owner, 9. sale by finder=theft, 9. lying, 11, 12. magistrate, over township, 23, 24. maid, female slave- given by wife to husband, to bear children, 144. not to rival mistress, 146. if so, reckoned slave again, 146. not sold, if a mother, 146. may be sold, if not, 146. children, acknowledged by husband, in his lifetime, share equally with wife's children, 170. otherwise, free, but not heirs, 171. maintenance, of wife in absence, 133-135. of divorced wife, 137. or concubine, 137. _malice prepense_ 206. malicious abuse of process, 12. mancipium, hostage to work off debt- natural death, 115. done to death, 116. free after three years, if free born, 117. slave, can be sold, by creditor on removal, 118. but not if mother of debtor's children, 119. redeemed by debtor, 119. mansion, 'great house.' _see_ palace. manslaughter, of mancipium, 116. if slave, penalty one-third mina of silver, 116. by blow in quarrel, 207, 208. marks, on slave. _see_ branding. marriage portion, given by father to bride- returned on divorce, 137. not to bad wife, 141. returned to injured wife, 142. ,, to invalid wife, who leaves husband, 149. property of wife's children, 162. father of bride cannot reclaim, if she has children of the marriage, 162. returned, if wife dies childless, 163. less bride-price, if not repaid to husband, 164. if wife re-marry, shared by children of both marriages, 173. taken by children of first marriage, if none of second, 174. free wife of slave, takes her marriage portion, if any on his death, for self and children, 175. master's right over married slave's property, 175, 176. pays for slave's cure, 217, 223. _see_ slave. merchant, trader, relations with agent, 100-107. official (?), 40. as creditor, money-lender, 40, 49, 116, 118, 119, 152, x, z. bound to accept goods, for money or corn, z. pays fivefold for overcharging agent 107. likely to change residence, 118. metayer, system of lease, landlord finds seed, implements, working animals, etc. _see_ also lease, 253. militia, or conscript, for _corvee_- fugitive from, 9. granted to governor, 33. minor, status of, 7. miscarriage, 209. _see_ assault, fine. money, not sealed for, cannot enter account, 105. _see_ hire, price, fines. mortgage. _see_ debt. mortgagor's power of sale, 118. option to refuse foreclosure, x. mother, has custody of children, 29. incest with, 157. mutilation, as penalty. _see_ branding, ear, eye, hands, breasts, tongue. of hired ox, 248. either punishment of offending member, or retaliation for mutilation. _see_ retaliation. neglect, to cultivate field leased, 42, 43. to reclaim field leased, 44. to set up dwelling, 47. to strengthen dyke, 53. to plant garden leased, 61-63. to till garden, 65. to build house properly, 232. to cultivate on metayer, 253. to confine vicious ox, 251, 252. oath, in legal process. _see_ sworn deposition, 9. for purgation, 20, 131, 227, 266. as to loss, 23, 103, 126, 240, 249. as to deposit, 120. as to injury, 206. office, duty of official, 40. officials, _pa-pa_ and _nu-tur_- duties and liabilities, 33, 34. _see_ governor, ganger, constable, reeve, bailiff, runner, palace, judge. ordeal, by water, nature of, 2. for witchcraft, 2. purgation of slander, 132. ox, working, not to be distrained on, 241. ,, hire, 242. furious, 250. vicious, 251. palace, equivalent to state, king, gentleman's residence- property of, 11. ransom by, 32. place of judgement, 109. palace official, 'one who stands in the presence'- child of, may be adopted without demur, 192. perjury, 3, 4. personal property of official pledged, 39. pin-money. _see_ settlement. pledge, of benefice, illegal, 38. personal property allowed, 39. _see_ debt. poor man, separate estate, contrasted with gentleman and slave- theft from, 8. abduction of slave from, 15. liable to conscription or levy, 16. reduced charges for divorce, 140. owned slave, 15, 175, 176. his eye or limb valued at one mina of silver, 198. his tooth valued at one-third mina of silver, 201. assault by poor man, 204. assault by, 208. fee for cure of wound or eye, 208. fee for cure of limb or bowel, 222. pregnant woman. _see_ assault, fine. prescriptive right to benefice acquired by discharge of office, 30. presumption, 7. price of drink not to be less than corn, 108. except at harvest time, then five-sixths, 111. principal. _see_ merchant. procuration of desertion of slave from master, 15. produce rent, 42. of field, one-half or one-third crop, 46. of garden, two-thirds crop, 64. ransom, of captive official, 32. by serf, 32. by town, 32. by palace, 32. rape, of betrothed maiden, 130. rebellion, loss by, 125. receipt, sealed written document- to be taken by agent for goods committed, 104. to be taken by depositor, 124, 125. receiving of stolen goods, 10. reclaiming lease, 44. recovery, of lost property, 9, 10, 126. of deposit, 124, 125. redemption of pledge or mancipium, 119. debtor must redeem a maid who has borne him children, 119. reeve. _see_ ganger. referees. _see_ witnesses. refusal to name owner, 19. of conjugal rights, 141. reimbursement to evicted purchaser, 9. re-marriage of divorced woman, 141. of widow, 173. her marriage portion shared equally by children of both marriages, 173. if no children of second marriage, those of first take all, 174. remission of penalty, 129. rents, usually share of produce, 46, 64. fixed by code for- land leased to be reclaimed, three years free, fourth year ten _gur per gan_, 44; cf. 63. land leased to plant as garden, four years free, fifth year halfproduce, 60; cf. lev. xix. 25. garden leased to till, two-thirds produce, 64. abatement, if crop destroyed, 45. no abatement if culpable negligence, 52. repatriation of slave, 280, 281. repudiation of adoptive parents- by son of votary, or palace official, 192. _res perit domino_, 115. restitution, compensation, damages, reimbursement- simple, 9, 10, 12. goods for goods, 232. ox or ass, for same, 245, 246, 263. slave for slave, 219, 231. of deposit, 125. threefold, for cheating principal, 106. fivefold, for goods lost or stolen by carrier, 112; cf. 12. sixfold, for over-charging agent, 107. tenfold, for theft by poor man, 8. ,, for culpable loss by herdsman or shepherd, 265. twelvefold, for false sentence by judge, 5. thirtyfold, for theft by gentleman, 5. retaliation, eye for eye, 196. limb for limb, 197. tooth for tooth, 200. son for son, 116, 230. slave for slave, 219, 231. suitor to bear penalty he sought to bring, 4, 13. _see_ restitutions. return, of slave purchased- permissible within one month, for disease, 278. or other undisclosed defect, 279. reward, for capturing fugitive slave, 17. risks, landlord's, 45, 46. lessor's, 244. warehouseman's, 125. tenant's, 45. robbery, 22, 23. runnel, 55. runner. _see_ constable. sacrilegious theft- of first order, 6. of second order, 8. sale of, man and property, to pay fine, 54. wife or child, for debt, 117. crops to pay, according to scale, 51. scale damages. _see_ king's standard. scandal, 132. scourging, with cowhide whip, sixty strokes, 202. second marriage, 166, 167. _see_ re-marriage, widow. seduction, of betrothed daughter-in-law, 155. of slave, from service, 15. self-help, forbidden, 113. separation, of husband and wife- grounds for, on part of husband- gone out, deserted home, 142. belittled wife, 142. on part of wife- set to desert home, 141. quarrelsome, 141. ruinous, 141. belittled husband, 141. settlement, or pin-money, estate, or goods settled on wife- by husband, in lifetime, by written deed, 150. children not to dispute, 150. wife has freedom of testamentary devise, 150. among her children of that marriage, 150. wife may not leave to brothers, 150. widow enjoys for life, if she remains in husband's house, 171. widow bequeaths to children, 171. ,, resigns if she re-marries, 172. compare gift to favourite child. share, of father's property, on his death- equally by all children, 165. divorced wife, as one child, 137. with reservation apart, of gift to favourite, 165. ,, ,, of wife's settlement, 150. ,, ,, bride-price for unmarried son, 166. ,, ,, portion for votary sister, 178. of mother's marriage portion, on her death, 167. all her children equally, 167. children of second wife share own mother's portion, 167. children of both mothers share equally in father's property, 167. children of maid, if acknowledged, share equally with children of wife, latter taking precedence, 170. shepherds, duties and liabilities of, 262-267. slander, against votary or married woman, 127. of wife, 132. of suitor, 161. judiciary, against referees, 3. of title, 11. liability for, passively transmitted, 12. seditious, 109. slave, one of three estates, domestic inferior- not free to contract except by deed and bond, 6. seduction from service, penal, 15. fugitive, harbouring, 16. ,, capturing, 17. ,, retaining, 19. ,, refuses to name owner, 18. ,, re-escape of captured, 20. subject to levy, 16. marries free woman, 175. children free, 175. woman marries master, bears sons, not to be sold, 119. cure of, paid for by master, 218, 223. his eye or limb, valued at half-price, 199. assault on free-man by slave, 205. gored by ox, 251. of poor man, 219. captured and repatriated, 280. freed, if native, 281. rebellious, repudiates master, 282. speculation in crops, futures, discouraged, 49, 50, x. spell, magical. _see_ witchcraft. stay of case, for production of witnesses, 13. stolen goods, guilty purchase of=theft, 10. storage. _see_ warehouse, deposit. strength of a man, crown of the head (?), genitalia- penalty for wounding the, of- superior, 202. equal, 203. poor man, 204. free-man by slave, 205. striking or wounding. _see_ assaults. of father by son, 195. sub-letting, not to be objected to, 47. subornation, of perjury, 4. summons to appear before judge, 127. _see_ calling to account. superior, assault of, 202. surgeon. _see_ doctor. sworn deposition, 9, 23, 103, 120, 126, 206, 240, 249. tablet, broken, annulment of contract, 37. wetted, to rewrite date, 48. temple, property protected, 6, 8. bound to ransom captive, 32. tenant's risks, 45. theft, first order, involving entry, 6. second order, in the open, 8. by keeping property found, 9. by selling property found, 10. aggravated at fire, 25. from deposit, 120. under metayer, 254. _see_ bailment, lost property, sacrilegious, stolen goods, treasonable, receiving. threatening witnesses, 3. threshing floor, 113. tongue cut out, 192. treasonable theft, first order, 6. second order, 8. trespass, to realty, 54. dolus, 54. culpa, 55. tributary, a beneficed person, paid tribute, 36-41. benefice inalienable, 36. _see_ benefice. trust, deposit, regulated- corn in granary, 120. any goods, 122. undertaking. _see_ lease. untitled possession, 9, 10. veterinary surgeon, duties and liabilities of, 224, 225. vexatious claim of property as lost, 11. _vivum vadium_, 49. votary, not to open or enter wine shop, 110. protected from slander, 127. as wife, 145. gives maid to husband, to bear children, 146. not to be rivalled by maid, 147. dowered as for marriage, 178. free to leave her portion, if allowed by father's deed, 178, 179. otherwise, brothers assume charge of her estate and maintain her, 178. or if they do not content her, she farms it out, 178. if father gives her no portion, entitled on his death to one child's share, 180. but must leave to brothers, 180. if dedicated by father, and not portioned, entitled to one-third share at his death, 181. must leave this to brethren, 181. if dedicated by father to marduk of babylon, and not portioned, entitled to one-third share at his death, 182. pays no taxes, 182. leaves property as she likes, 182. her child may be adopted, without her consent, 193. ,, if adopted, severely punished for repudiating adopted parents, 193. usually lived in convent, 110. cannot alienate or mortgage estate, 178. unless power granted by father's deed, 179. when brothers cannot interfere, 179. wages. _see_ hire. warden. _see_ constable. wards, children of re-married widow, by first marriage, 177. warehousing, 120-126. fee for, one-sixtieth value, 121. liability for loss in warehouse, 125. waste, 59. land. _see_ reclaiming lease, 44, 63. weights, great, 108. widow, on husband's death- stays in his house, 171. takes her portion and settlement, 171. may not alienate them from children, 171. if no settlement, takes portion, and one child's share, 172. children cannot turn her out without legal process, 172. if she wishes to leave and re-marry, resigns settlement to children, but takes portion, 172. on her death, children of both marriages divide her portion equally, 172. with young children, may marry, but she and husband are bound trustees for the children, 177. wife, of free-man, not to be slandered, 127. not legally married, without bonds, 128. adultery by, drowned, 129. falsely accused, 131. slandered, 132. of captive husband, 133-135. bound to preserve fidelity if provided for, 133. otherwise, may re-marry, 134. but must rejoin husband, on return, 135. children, of second marriage, if any, stay with father, 135. deserted, 136. divorce of, who has borne children, 137. divorced, takes marriage portion, usufruct of field, garden, and property, only leaves house, has custody and education of children, then takes one child's share, and is free to re-marry, 137. ,, and if not a mother, takes marriage portion and bride-price, 138. ,, or in lieu of bride-price, fixed sum, 139, 140. may seek divorce, 141. bad, divorced without compensation, 141. ,, reduced to status of slave, 141. denies conjugal rights, 142. if bad, drowned, 143. if justified by husband's cruelty, separated, 142. good, stays at home, is not quarrelsome, economical, does not belittle her husband, has no vice, 142. may give maid to husband to bear children, 144. husband then may not take concubine, 144. maid may not rival, 145. childless, does not give maid, husband can take concubine, 145. concubine not to rival, 145. invalid, to be maintained, not divorced, 148. ,, husband can marry second wife, 148. ,, may leave husband, taking portion, 149. second wife only allowed, if first be invalid, or divorced, 137-141, 148. can leave settlement to any child she prefers, 150. liability for husband's debts, 151. procuring death of husband, for love of another, impaled, 153. of official, no claim on benefice, 38. deserted, free to marry, 136. wine seller, duties and liabilities, 108-110. not to sell drink cheaper than corn, 108. relaxation of this rule, 111. not to suffer brawling or seditious talk, 109. bound to hale brawlers to palace, 109. votary not to be, 110. wit, 24, 116. witchcraft, laws against, 1, 2. witnesses- (1) referees, elders of township, assessors of judge. (2) knowing facts, recognising property. (3) to document. penalty for threatening, death, 3. ,, bribing, to bear sentence, 4. necessary for legal purchase, 7, 9. time granted to produce, 13. to deposit, 122. knowing lost property, 9. working expenses, 49. wounds, given in quarrel, 206. grievous, cure by doctor, 215, 217, 218. to cattle, cure, 225. printed by morrison and gibb limited, edinburgh. images of public domain material from the google books project.) the new jersey law journal published monthly volume xlv january, 1922 no. 1 editorial notes. at least three decisions of nation-wide import were made by the united states supreme court in december. the first, american steel foundries v. tri-city trades' council we give, probably in full, elsewhere, as taken from the "new york times." it is on the subject of strikes and picketing, and speaks for itself. another tested the law of arizona, which made picketing, etc., that tended to destroy an employer's business, lawful, and the law was held to be unconstitutional, although by a divided court, 5 to 4. among the dissenters was mr. justice pitney. the main opinion was lengthy and explicit, and we think, fair and just. the third was on the subject of the "open competition" plan by which members of the national hardwood manufacturers' associations believed they were getting around the sherman act, but are now told by the court their practices are in restraint of trade. the association was prosecuted by the government in the federal court at memphis, and a permanent injunction was obtained against continuance of the practices of filing by hardwood concerns of reports of business operations with a central organization, such reports being open to all other members of the organization. the opinion holding the conduct of the members of the association to be illegal was delivered by justice clark. as usual, of late, there were dissents, this time by justices holmes, brandies and mckenna. the meetings of the members resulted in concerted action, justice clarke stated, to raise prices regardless of conditions, and the plan was termed by him "misleading and a misnomer" and "an old evil in a new dress and a new name." he added that instead of a plan to promote open competition it operated to restrict competition. it was futile, he said, to argue that the plan was merely to furnish information which could not be otherwise obtained. the secretary of the association, through an expert statistician, utilized replies to questionnaires and other information furnished by the members of the association as the basis for bulletins and advices. these replies also were utilized in predicting and promoting advances in prices, by withholding of products from the market, awaiting higher prices. * * * * * in the second case referred to in the preceding paragraph the united states supreme court thus laid down the rule as to the "secondary boycott": it is to be observed that this [the case in hand] is not the mere case of a peaceful secondary boycott, as to the illegality of which courts have differed and states have adopted different statutory provisions. a secondary boycott of this kind is where many combine to injure one in his business by coercing persons against their will to cease patronizing him by threats of similar injury. in such a case the many have a legal right to withdraw their trade from the one, they have the legal right to withdraw their trade from third persons and they have the right to advise third persons of their intention to do so when each act is considered singly. the question in such cases is whether the moral coercion exercised over a stranger to the original controversy by steps in themselves legal becomes a legal wrong. but here the illegality of the means used is without doubt and fundamental. the means used are the libelous and abusive attacks on the plaintiffs' reputation, like attacks on their employers and customers. threats of such attacks on would-be customers, picketing and patrolling of the entrance to their place of business and the consequent obstruction of free access thereto--all had the purpose of depriving the plaintiffs of their business. to give operation to a statute whereby serious losses inflicted by such unlawful means are in effect made remedyless, is, we think, to disregard fundamental rights of liberty and property and to deprive the person suffering the loss of due process of law." * * * * * it is with deepest regret that an announcement in our obituary columns in this issue includes the name of ex-justice bennet van syckel as a deceased member of the bar and jurist. those who practiced under him in the circuits in former years, or who knew him as the bright, fully-equipped ornament of the supreme bench, well understand that his passing cuts off the last link between the supreme court of a few decades ago and the court as constituted to-day. justice van syckel was approaching 92 years of age, and many were the hopes that he would retain his health and vigor of intellect until he reached an even hundred years. the courts wherein he sat, and the present older members of the bar will see to it that his merits are officially pronounced; we can only say now that no eulogy to be given to his memory will do him over-justice. his dignity, fairness and sound legal judgment on the bench were such that he deserved even greater honors than he received and his private life was immaculate. an excellent portrait of the justice as he appeared in 1905 will be found in the law journal of that year (vol. 28, facing p. 6). * * * * * the following seems almost an impossible propaganda to come even from germany at this time, but especially from one of the sources named. the "pathfinders league," of stuttgart, we assume to be a social (practically soviet) organization, but the "christian young people's societies," must be at least a quasi-religious body. a circular sent out and published by these organizations on july 22 last says: "war is the most exalted and holiest expression of human activity. some day the hour of battle will strike for us, too, when we, as officers, go forth against the enemy. the people, which is a minor politically, will then fall into line of itself. in the days of secret, happy expectation there then goes from heart to heart the cry: 'with god for king and fatherland!' still and deep in german hearts there must live the joy of battle and a longing for it. so, let's laugh to scorn those old women in men's breeches who fear war and wail that it is horrible and criminal. no and again, no! war is beautiful, and it is glorious to die for the fatherland and the hereditary ruling house. our great ally above will lead us splendidly." in new york city there is a municipal ordinance requiring landlords, who are to give tenants under a lease hot water, to furnish it or be arrested, fined and, if thought wise by the magistrate, imprisoned. recently a landlord in the bronx was found guilty of failure to supply hot water, and it appeared that the landlord and tenant had somehow become on unfriendly terms; that there was a special valve in the house which permitted hot water to go to one apartment and to be shut off from another; and that the landlord closed down the valve to shut off the hot water of the complaining tenant. thirty days in prison and a fine of $250 was the penalty imposed by the justices in special sessions. * * * * * among the important decisions in the court of errors and appeals in this state on nov. 14th last was one unanimously confirming the conviction of the negro, george washington knight, for the murder of mrs. edith marshall wilson, the church organist at perth amboy, in march last, which murder the prisoner had confessed. (see n. j. l. j., april, 1921, p. 102). although the court was unanimous in upholding the conviction of knight, three of the judges, chancellor walker, justice kalisch and judge black, differed with the view of the majority as to the constitutionality of the mackay act of 1921 (laws, ch. 349), empowering the court of errors and appeals to review the sufficiency of the evidence in criminal cases, where the defendant elects to take up the entire record. mr. justice kalisch wrote a minority opinion, concurring in the affirming of the conviction but differing with the majority as to the constitutional question involved. chief justice gummere, in the main opinion, said that the statute of 1921 was not novel, but is similar to an act passed more than twenty years ago, but subsequently repealed, under which the court of errors set aside a conviction for murder in the first degree. the first ground of attack was that the mackay act violates the provisions of the constitution relative to trial by jury, which provides that the guilt or innocence of a defendant shall be determined by an impartial jury. the court said, however, that the question of the verdict being in accordance with the weight of the evidence cannot be raised by the state, but only by the defendant. therefore, the court held, the constitutional protection afforded by a jury trial is not lessened by the law under which the accused may elect to have the evidence reviewed. the court also held that the right given the court of errors to order a new trial where the evidence seemed insufficient was not a novel proposition, but was rather extending to the reviewing tribunal a power now existing in the trial court; that such an extension of power, provided it does not trespass upon the inherent powers of any other court, is not unconstitutional. having decided the legal questions involved, the court reviewed the testimony upon which knight was convicted and concluded it was sufficient to justify the jury's verdict of murder in the first degree. later, mr. justice bergen, before whom the knight trial was held, resentenced the prisoner to be electrocuted. * * * * * at the convention of the real estate league of new jersey in newark recently, mr. frank b. jess, of haddon heights, whose experience on the state board of taxes and assessment has made him an authority on the subject of taxation, its inequalities and shortcomings, stated with positiveness that the personal property tax is a failure and always will be a failure. "it is obvious," he added, "that if all the taxable property in the state should be assessed at its true value, or at a uniform percentage of true value, the burden of taxation would be apportioned with exact equality. the chief objective of the assessing system of the state, therefore, is uniformity of valuation. it would be foolish to suppose that this ideal can ever be wholly attained. but it is more foolish not to aim at its attainment. the scheme of assessment should be devised with that end in view and so framed as to facilitate its achievement. the prevailing scheme provides as many assessors as there are taxing units. even if each assessor were an expert the grand result inevitably would be a great variety of valuations. as so many assessors are not experts the absence of uniformity is all the more conspicuous." mr. jess said that each assessor or assessing body is now a separate machine, functioning independently in a particular territory. he declared that an assessor should be a part of a system having a central power plant functioning for the entire state. * * * * * after three days of argument by lawyers in the federal case in new york city concerning the intent of and court decisions on the sherman law against trusts, judge hand imposed fines of $3,000 each on the seven corporations and ten individuals who had pleaded guilty to violating the sherman act. the defendants were those of the terra cotta trust, and included companies in new jersey, at perth amboy and rocky hill. nearly at the same time judge van fleet, so well known as a jurist of california, but descended from an old new york and new jersey family, did better as to real justice with four members of the tile and mantel trust, who also had pleaded guilty to violations of the sherman law, by sentencing three of them to pay a fine of $4,000 each and to spend four months in prison, and the fourth to pay a fine of $2,000 and to spend two months in prison. there were also fines on others. the fines on all members of the combine aggregated nearly $170,000. it is clear that only by heavy fines with imprisonment added can the sherman law against widely-extended and injurious trusts be made to act as a deterrent of such trusts in the future. * * * * * the attorney-general of the united states, in an address at the last meeting of the american bar association in cincinnati, gave, as suggestions, six rules for the handling of labor disputes. they were: "first--it is an undisputed fact that the public have a right to know what the quarrel is about in every actual or threatened strike or lockout and similar controversies. "second--there should be some definite agencies in government for ascertaining these facts fully and making an impartial finding by those specially qualified both by temperament and training to do this particular kind of work; and such finding should be reported so that it will be a reliable source of knowledge to which students and publicists and statesmen can resort. "third--compulsory jurisdiction over these two factors to compel them to submit to an inquiry of this sort is not only desirable but just. "fourth--at present our study of this question has not been sufficiently thorough to warrant legislation compelling the acceptance of such findings by the parties thereto. therefore, the jurisdiction of the proper agency should be obligatory upon the parties to submit to the investigation; the acceptance of the finding by the parties should be voluntary. "fifth--the experience of the past shows that in most cases full, accurate, reliable publicity has been sufficient to compel an adjustment of these cases. public sentiment is a controlling factor and it is important, in justice to both of the parties, that it should depend upon something more accurate than successful propaganda. "sixth--in the course of time knowledge of the nature and causes of these controversies derived in this way may crystallize public sentiment to the extent that laws can be enacted making such controversies impossible." it will thus be seen that mr. dougherty does not favor obligatory arbitration in the case of labor disputes, his view being that public sentiment will decide them. but we have always been clear in our own mind that there must be compulsory acquiescence in the findings of whatever tribunal hears such disputes; otherwise one party or the other will, too often, not acquiesce. * * * * * in a recent chancery case, where an injunction had been ordered by the court restraining a corporation from doing anything while the matter of a permanent receivership was under consideration, a voluntary petition in bankruptcy was filed. in proceedings against certain officers of the corporation for contempt in thus disobeying the injunction, chancellor fielder suspended sentence upon the ground that, as a mitigating circumstance, they had been badly advised, and said: "i think that the conduct of counsel in the case was absolutely reprehensible. counsel was bound to know the law, and if he did not know the law, he ought to have had common sense enough to know that an order of this court restraining any act of the corporation was sufficient to forbid the filing of a voluntary petition in bankruptcy. if the order to show cause had been directed to counsel i think i would find him guilty of contempt of court, and i don't think that any mitigating circumstance could be offered in his behalf." * * * * * our readers are receiving this month, in addition to the usual charming article by former judge frederic adams, a fourth of july oration delivered by mr. justice parker of our supreme court in the church of st. mary's-by-the-sea, northeast harbor, maine, two and a-half years ago. because this address is not recent gives special reason for its publication now. we only learned recently of this address and, after seeing it, requested of the judge the privilege of publishing it in the law journal, a request finally granted. it seemed to us not only that the general matter and fine, clear statement of facts and elevated american sentiments warranted the preservation of this address, but also that our readers might be interested to compare what some of our best minds thought of events at the close of the treaty at versailles and what has really happened since in american and world affairs. some reminiscences, mostly legal. by hon. frederic adams, los angeles, cal. iii. anecdotes of the harvard law school and of its famous triumvirate. i have on my shelves a beautiful book. "the centennial history of the harvard law school," 1817-1917, published by the harvard law school association, 1918. this work, of about four hundred pages, has been written and compiled by the faculty, with the assistance of graduates. it is admirably printed on excellent paper and liberally illustrated. the whole story of the great school is spread before the reader: its modest beginning; its golden age of story and greenleaf; the sedate and conservative era of the triumvirate, parker, parsons and washburn, in which my own lot fell; and then langdell, the apostle of a new idea, and his many brilliant and interesting followers. the centre of gravity has been shifted from the text-book to the case and this is philosophical, for evidently the cases are the original evidences of the law. but the idea of taking up what thackeray calls "the vast legend of the law" as a direct subject of study was so revolutionary that it won its way very slowly. i quote from the "centennial history" a spirited sketch of professor langdell's opening, and of the early history of the new system: "the day came for the first trial of the new method of study and teaching. the class gathered in the old amphitheater of dane hall--the one lecture room of the school--and opened their strange new pamphlets, reports bereft of their only useful part, the head-notes! the lecturer opened his. "'mr. fox, will you state the facts in the case of payne v. cave?' "mr. fox did his best with the facts of the case. "'mr. rawle, will you give the plaintiff's argument?' "mr. rawle gave what he could of the plaintiff's argument. "'mr. adams, do you agree with that?' "and the case-system of teaching law had begun.... consider the man's courage.... langdell was experimenting in darkness absolute save for his own mental illumination. he had no prestige, no assistants, no precedents, the slenderest of apparatus, and for the most part an uncompromising _corpus vile_. he was the david facing a complacent goliath of unshaken legal tradition, reinforced by social and literary prejudice. his attempts were met with the open hostility, if not of the other instructors, certainly of the bulk of the students. his first lectures were followed by impromptu indignation meetings. 'what do we care whether myers agrees with the case, or what fessenden thinks of the dissenting opinion? what we want to know is: "what's the law?"' "a controversy at once sprang up as to the efficacy of this method of instruction. to most of the students, as well as to langdell's colleagues, it was abomination. the students cut his lectures; only a few remained. but these few were the seed of the new school. they included several men who afterward attained national reputation: james barr ames, his greatest pupil and successor; franklin g. fessenden, member of the superior court of massachusetts; austen g. fox, a leader of the new york bar; edward q. keasbey, of new jersey; james j. myers, speaker of the massachusetts house of representatives and one of the leaders of the boston bar; and francis rawle of philadelphia, a president of the american bar association. working out his cases with these enthusiastic young men, patiently and thoroughly as he always worked, langdell did nothing to force upon others the acceptance of his system. in a few years ames was appointed to the faculty, and brought youth, fire, virility into the contest; but for many years the two were alone in their use of the new method. it was ten years before others acceded to it." the fact was that something had to be done. the school was on the down grade. i state this no more strongly than the history does at pages 21 to 25. this was the natural result, i think, of an extremely inefficient method of instruction. nothing could be less effective than a series of lectures which no one was bound to attend, without recitations or examinations, so that it was possible for a student to receive his degree after a year and a half of residence without learning any law. such a system might do for very zealous and ambitious students, but not for a large class. that the school held up its head as long as it did was due to two things: the _genius loci_, which counted for a good deal, and the personal influence and example of the professors, who were superior men. i write with the reserve proper to one who is considering an educational policy of which he has had no personal experience, but it seems to me that, in the last analysis, professor langdell's new idea was this: to rouse, develop, discipline and cultivate the judgment, and so, as far as possible, to equip each student with that valuable attribute, easily recognized but hard to define or describe, which is called a legal mind. it is judgment that does it. a mechanic of good judgment is already half a lawyer; an attorney of poor judgment will always remain in the apprentice class. i am reminded how i first saw langdell's name. after i left the law school i was for a time a member of the new york bar. as i went upstairs to my office at no. 16 wall street, i would see above me, at the top of the next flight, the sign of a law firm, pierrepont, stanley & langdell. i knew about pierrepont, who was a yale man of the class of 1837, and i somehow got the idea, perhaps unjust to mr. pierrepont, that one of the junior partners was an erudite man who acted as purveyor of legal ideas to the head of the firm, somewhat as sydney carton did for mr. stryver in "a tale of two cities." the selection of mr. langdell as a professor was due to the sagacity of president eliot. an interesting and valuable part of the history is a biographical list of the ninety-one men who were teachers in the school during the century covered by the book. one of the names is that of justice francis j. swayze, of the new jersey supreme court, who began in the centennial year, 1917, a course of lectures on legal ethics, which he continues. i now go back to my own time at the law school. there was a small jersey group there. nehemiah perry, henry young, job h. lippincott, abram q. garretson and john r. emery were men who, like othello, "have done the state some service." when vice-chancellor emery passed away, i became the only survivor of the little company. professor joel parker, as i knew him, was a courteous gentleman of the old school, sixty-nine years of age, _tenax propositi_ public-spirited, courageous and combative, who had established a high reputation as a jurist by his opinions as chief justice of new hampshire for fifteen years. as a conservative whig he had supported the compromises of 1850, but presided over a meeting of the citizens of cambridge, held june 2, 1856, to denounce the assault on senator sumner. the conclusion of his speech on that occasion showed the mettle of the man. "for myself, personally, i am perhaps known to most of you as a peaceful citizen, reasonably conservative, devotedly attached to the constitution, and much too far advanced in life for gasconade; but, under present circumstances, i may be pardoned for saying that some of my father's blood was shed on bunker hill, at the commencement of one revolution, and that there is a little more of the same sort left, if it shall prove necessary, for the beginning of another." the professor had a true instinct. the attack on senator sumner was the first act of civil war; the john brown raid the second; the firing on fort sumpter the third. professor parker, when chief justice of new hampshire, had a memorable struggle with judge story, who held the united states circuit court, over a question under the bankrupt law. the facts are stated on pages 245 and 246 of the history of the law school. in my time it was thought that professor parker did not like story, or story's rather showy law books. he probably would have agreed with the following remarks on page 12 of the history: "story was the kindly master who, in his lectures, smoothed the rough places and was profuse with instruction and help. we may suppose his lectures, like his books, to have been learned, fluent, often original and profound, sometimes, however, dodging a difficulty rather than trying to overcome it." i have heard it said that story stands higher as a writer of opinions than as a legal author. there was in my day a student named stevenson who was assigned to argue one side of a moot court case before professor parker, sitting as judge. stevenson, who knew and well understood the professor, in the course of his argument read a few sentences from one of story's books and then, pausing and looking at the judge, said: "may it please your honor. there follows this passage about half a page of latin. i have not read it, but it looks as though it were on our side." professor parker, during the war for the union was _pro_ the administration _saepe_; _pro lege, pro republica semper_. he had, of course, profound reverence for the writ of habeas corpus. a student once stated a strong case of treasonable conduct and asked him if he would not suspend the writ in such a case. "no, sir," said the professor, "i would not suspend the writ of habeas corpus, but i would suspend the corpus." professor theophilus parsons was a son of the great chief justice of massachusetts of the same name. he was sixty-six years of age when i knew him, a man of the world who had touched life at many points, a voluminous writer of law books and an instructive and entertaining lecturer. there was a side to his nature which he did not show to his class. i used to have among my books a small volume of sublimated swedenborgian doctrine written by him. it was difficult to associate it with the genial and jovial man you saw in the lecture room. i have tried to assimilate this message from the new jerusalem, but have failed, no doubt because of some invincible ignorance and innate incapacity of my own. professor parsons saw something of europe after graduating from harvard in 1815, and i think was at st. petersburg with william pinkney, then american minister, when the grand-duke nicholas, who was afterwards emperor, was married to a prussian princess in july, 1817. he described mr. pinkney as coming in from the ceremony in a real or affected huff, and complaining, as he tore off his gloves, that a beggarly grand-duke had obliged him to get up at eight o'clock in the morning. "but, mr. pinkney," said parsons, "the wedding was not until twelve o'clock." "true, sir," said pinkney, who affected to be a man of fashion, "but can a gentleman dress in less than four hours?" professor parsons wrote an interesting life of his father, who was an old-fashioned colossus of the common law. indeed, the chief justice took pretty much all knowledge for his province, and was a classical scholar and good mathematician. i moved, or was moved, at the early age of three months, from my birthplace in new hampshire to the parish of byfield, massachusetts, near newburyport, and lived there for seven years. the father of chief justice parsons was a congregational minister and pastor of the church in byfield for more than forty years. when i visit byfield, as i love to do, i read upon a tablet on the parsonage lawn "birthplace of theophilus parsons." the chief justice had an extraordinary knowledge of the early history, laws, institutions, manners and local usages of the settlers of new england. i had among my law books one that used to remind me of him. a young lawyer once asked him what was the best law dictionary. "kinnicum's is the best," was the answer. a few days later, the young man said to him, "i have asked everywhere for 'kinnicum's law dictionary' and cannot find it." the chief justice laughed and said: "ask for cunningham's." the book which i had was cunningham's "law dictionary," in two folio volumes. a similar incident is told of judge story, who was also a 'longshore man, born in marblehead, a place which abounded in local peculiarities, as we know from whittier's version of "flud oireson's ride." judge story was opening the circuit court of the united states at salem, and the clerk, as he went over the panel, called "michael treffery." no answer. "michael treffery!" no answer. "that is strange," said the clerk, "i saw the man here a few moments ago." "let me see the list," said the judge. he glanced at it and said, to the clerk, "call michael trevay." the clerk: "michael trevay." "present," said a juror. the clerk: "why did you not answer?" "you never called my name." mr. parsons, before he became chief justice, was sitting in his house at newburyport one sunday morning, when a client and friend, who lived at salem, was announced and said: "mr. parsons, i beg your pardon for making a call on sunday. i would not do it if it were my own matter, but the case is that i am guardian for some minor children and a matter of importance to them is coming up in the probate court at salem to-morrow morning. i have had no opportunity to get advice and so i have taken the liberty to ask your counsel." "never practice law on sunday," said parsons. "why, of course i understand that," said the other, but i thought that perhaps, under all the circumstances, you might be willing to aid me." "never practice law on sunday," said parsons. "good day, mr. parsons, i am sorry to have troubled you." "stop a minute," said parsons, "do you want advice as to the moral aspect of the case or as to the legal aspect of it?" "why, as to the legal aspect, of course. i am satisfied that my position is fair and right. i want to know whether it will stand law." "well, now, i will tell you," said parsons, "i don't know anything about your case and i don't want to hear anything about it, but i know you, and if you think that your position is fair and just you may go ahead on that and i will be responsible for the law." someone asked him, when he was chief justice, if it were true that he never lost a case while he was at the bar. "yes," said the chief justice, "that is true. i never lost a case, but my clients lost a great many." chief justice parsons, because of his preoccupation with his thoughts, was sometimes careless about his dress. he was a clubable man, to use dr. johnson's phrase, and some of his intimate friends thought that in a genial hour a useful hint might be given him. so it was arranged that mr. harrison gray otis should invite the group to dinner and manage the matter. mr. otis was the one to do it, for he was a man of taste, quite "the glass of fashion and the mould of form," of great personal elegance and public distinction, and a graceful entertainer. accordingly, the plan was carefully staged, and during the dinner the conversation took a natural turn toward social customs, usages, modes of dress and the like, and finally mr. otis, in a natural way, but with some distinctness, said: "for my own part, i always put on a clean shirt every day." the chief justice, who had apparently been giving his undivided attention to his dinner, here looked up and said: "why, otis, what a confoundedly dirty fellow you must be! i can wear a shirt for a whole week." jeremiah mason told of a professional conference between himself, when quite a young man, and mr. parsons before he became chief justice. among the elements in the case was a conveyance of parish land by a clergyman, and its nature and effect were under discussion. mr. mason suggested that it might be held to be a covenant to stand seized. mr. parsons turned to him quickly and said: "mason, i like that; that is a good idea of yours; in the relation between a clergyman and his parish there is some analogy to that between a man and his wife." mr. mason, in telling the story, said: "i didn't know, or had forgotten, that a consideration of blood or marriage was necessary to support a covenant to stand seized, but i said nothing, and as soon as i got home i took down my books and began to study the subject, and found the blood spurting out between the very lines of the page." it is grateful to recall the remaining member of the triumvirate, professor emery washburn, for he was an enthusiast, an indomitable and joyous worker at the age of sixty-three. i do not say that parker and parsons were not enthusiasts in their own way. they must have been so to accomplish what they did, but neither parker nor parsons manifested and imparted the contagious enthusiasm about their daily work which carried washburn and the class with him along the arid path of the law of real estate. he was always busy and always accessible and perhaps, on the whole, the most useful member of the triumvirate. he had been a leader of the very able bar of worcester and governor of the commonwealth, and was the author of valuable law books, with which the profession is familiar. i had a piece of good luck with him in my first and only moot court case. as i stood up to open the case, professor washburn, sitting as judge, said: "mr. adams, instead of reading the printed case, suppose you just state the facts in your own way." it happened that i was about to ask him to let me do that and was already prepared. so i came off with flying colors and probably got more credit for readiness than i deserved. i quote from the "history" at page 285: "in describing his first official visit to the law school, late in 1869, president eliot speaks of knocking at the door of washburn's room and, entering, received the usual salutation of the ever-genial governor washburn. 'oh, how are you? take a chair,' this without looking at me at all. when he saw who it was, he held up both his hands with his favorite gesture and said, 'i declare, i never before saw a president of harvard college in this building. then and there i took a lesson from one of the kindest and most sympathetic of teachers.'" there is, however, historical proof that on at least one prior occasion a president of harvard was in dane hall. john quincy adams one day mounted his horse at quincy and rode over to cambridge to see president quincy, who greeted him and pretty soon suggested that they call on judge story in his lecture room. the two distinguished visitors were gladly welcomed and were installed by judge story, one on each side of him, and he, at their request, proceeded with his lecture. both of these eminent gentlemen were stoics. president quincy went through the new england winters without wearing an overcoat, and mr. adams, when at washington, used to swim in the potomac and light his own fire in winter and, i believe, read a chapter of the old testament and a chapter of the new testament and wrote in what henry clay (who had been tripped up by mr. adams on some question of fact) called "that infernal diary of his in which he has put down everything that has happened since the adoption of the federal constitution"; and all this before breakfast. as judge story proceeded with the rapid and even flow of his lecture, he became aware of a smile upon the faces of his class. a quick glance to either side of him explained it, and, with a cautionary gesture and in a confidential tone, he said: "young gentlemen, you see before you two melancholy examples of the evil effect of early rising. always remember that it is of a great deal more importance to be awake after you are up, than simply to get up early." there is another story which does not relate to the law school, but which i will venture to tell, both as a picture of early cambridge days, and as a manifestation of harvard scholarship under adverse circumstances. there was then no harvard bridge and no horse-car line, and, when the culture of cambridge went to boston to hear emerson lecture in the winter evening, the best available vehicle was a large, open, four-horse sleigh, owned and driven by a liveryman named morse. on one such evening the lecture was over, and the return trip was on and so was a fine, powdery snowstorm. the sleigh proceeded across the cambridge bridge and then through east cambridge and so to cambridge, stopping now on one side of a street to discharge passengers at a small house, and now on the other side at a big house, and so on, and the fine snow kept sifting down and morse, perched high up in front, was growing more and more ghostly, when out from the sleigh rose the voice of james russell lowell, intoning a fragment from horace, adapted so as to embrace the charioteer of the sleigh: "_pallida mors[e] pulsat pede pauperum tabernas regumque turres_," which conington translates: "pale death, impartial, walks his round; he knocks at cottage-gate and palace portal." i have found both pleasure and profit in reviewing these associations, especially the memories of our wise and friendly teachers, and of fellow-students who were soon to be entrusted with the grave interests, the sacred issues of life, liberty and property. as experience and observation widen, one realizes how thin is the crust which separates civilized society from the elemental fires below, and comes more and more to value influences which preserve and institutions which stabilize. such an influence, such an institution is the harvard law school. such an influence, such an institution is the brotherhood of the bar, indissoluble save by death or dishonor. [_to be continued_] our third birth of freedom.[1] by justice charles w. parker. [1] fourth of july address at the church of saint mary's-by-the-sea, northeast harbor, maine. published herein by request of the editor of the law journal. see "editorial notes." the exercises of to-day are a revival, temporary perhaps, but still a revival, of the good old custom of celebrating the anniversary of the declaration of independence by public meetings, with prayer and song, the reading of the declaration, and a patriotic address. it was a good custom, though it tended to foster some erroneous ideas, particularly that england as a nation was blameworthy in revolutionary times, rather than the political machinations of george iii, the politician king. but it was a good custom for all that, and it is regrettable that it gave place to noise and fireworks. in the more recent years the date has been significant of other great crises in our history than that of revolutionary times. that was, of course, the greatest of all, and never to be forgotten, as it marks the definite transition of thirteen colonies into thirteen states, organized for war purposes as a nation. there had been over a year of war, beginning with the skirmish at lexington and the british retreat, followed quickly by ticonderoga, bunker hill, and the investment of boston. during the fall and winter there were the episodes of the burning of portland; the capture of montreal (later relinquished); the capture of norfolk in december; arnold's heartbreaking expedition to quebec through maine forests in the dead of winter; the battle of moore's creek, n. c., early in 1776, called the "southern lexington," and, to crown all, the evacuation of boston. these events and their concomitants, say the historians, made inevitable the declaration of independence, though the struggle began only as one for greater colonial self-government and modification of the taxing system. it was our first "birth of freedom," which has been re-born more than once since. i said the date marked other great crises in our history, and take time to mention two of them, both in the memory of living men. the first, and the greater, was in the midst of our civil war, when the news of the twin victories of gettysburg and vicksburg flashed over the land. dark days were still to come, and men were still discouraged; the war was to be proclaimed a failure by a great political party, but the power of the rebellion was broken, and, after july 4, 1863, the setbacks to the cause of nationality were but temporary and comparatively insignificant. a second great crisis was safely passed. the third great independence day, great for what it brought to others than ourselves, was thirty-five years later, when the tremendous news came that the spanish squadron, practically all remaining efficient of spain's navy, had been destroyed off santiago. that day marked the downfall of spanish power on this continent, and the liberation of oppressed peoples in both hemispheres; the culmination of a righteous war against a civilized and honorable foe, whose principal shortcoming was a hopelessly antiquated point of view and inability to deal intelligently with modern conditions. these great anniversaries all marked the definite passing of crises; the present one rather falls within a protracted period of crisis than marks the passing of one. if we were to celebrate the anniversary of the greatest crisis of recent times, i should name july 18th, 1918, when, as most of those here will remember, the glad peals of the bell above us sounded the news that the great allied offensive had opened. of this more in a few minutes. but july 4 as a date does not even mark the signing of the peace treaty. it is suggestive, however, of two things to be borne in mind at this time: the genius of our country as a lover of liberty and fair play, and the relation of that genius concretely to the problems of the recent past, and the present, and the immediate future. the announcement of such a subject gives me pause, for it is one for mature consideration and careful discussion by the best of statesmen. but there are some considerations, rather obvious perhaps, but still worthy of inclusion at this time, which i should like to present. i mentioned a moment ago our love of liberty and fair play. with these goes a constitutional tendency to mind our own business, let other people's business alone, and to avoid interference until convinced of its necessity. until 1914 we felt secure on our own continent, gave no offense and sustained none. fearing no war, we deemed preparation a waste of money and time; we were not disposed to pay expensive insurance premiums when our house was too far removed from others to be in danger of conflagration; against internal incendiarism we thought ourselves guarded. the warnings of manila bay in 1898 and venezuela a few years later made no impression. confident of our ultimate resources, we assumed no one would attack to court ultimate defeat; and above all, fair-minded ourselves, we were utterly incredulous of unfair-mindedness in others. wise and farseeing men gave warning from time to time, but the impressions were momentary. and so, when in 1914 the assassination at serajevo was quickly followed by an impossible ultimatum, and this in a very few days developed into a general european war, while our minds and souls revolted at a great injustice, our continental habit of thought resisted the suggestion that we should interfere to right that wrong. we did not see far enough; there were those who did; and i heard two wise men, summer residents here, agree in this very town in august, 1914, that this nation should take part, and at once. but public opinion did not run in that channel; nor was it led into it by our chosen rulers. these also were shortsighted, however their vision may have been clarified subsequently. we were told that a people should be neutral in thought as well as in deed; and so we stood by and watched belgium, a neutral country, ravaged and pillaged; france invaded and destroyed; serbia depopulated; russia crushed. a great crisis like the battle of the marne stirred men's souls, but without bringing home to us as a nation the ultimate danger to our liberty. the consummate outrage of the "lusitania" made an impression never effaced, but the rising indignation of the country was met with the caution that "a man may be too proud to fight," and this crisis passed over also. but the great giant was stirring in his sleep. trumpet calls came from men high in public esteem, among whom it is sufficient now to mention roosevelt and leonard wood. "preparedness" was their reveille. our young men heard it, and in 1916 at plattsburgh, and i think elsewhere, sprang up the training camps. the colleges offered their facilities; and although in the fall of 1916 there was still, as in 1860 and 1861, a large proportion of "peace-at-any-price" men, so large in 1916 as to permit the election of a president on the party slogan "he kept us out of war," the time was fast growing ripe. infatuated germany, confident of victory in europe and of later victory on this continent, or risking all on the submarine issue, went a step too far, and the giant woke up. woke up,--yes; but about as helpless as gulliver on the island of lilliput. the "man mountain" was tied fast with the cords of unpreparedness, red tape, departmental inefficiency, official jealousy and hostile intrigue. as in 1812, in 1847, in 1861 and in 1898, there was little or nothing ready; all had to be created. the lowering of the thunder-cloud had been unheeded. we had some destroyers and battleships and cruisers; these were sent at once where most needed. but to our shame, be it said, we had no trained men except the little regular army; no great guns; no appreciable number of field pieces; no machine guns; no small arms even, although our .30 cal. springfield rifle is justly pronounced the best small arm in the world. i have shot it and know it well. they cost at that time about fifteen dollars apiece. a million of them would have cost 15 million dollars, a sum which in these days makes us laugh at its insignificance; it is one-half of one per cent. of our first liberty loan. we had not even the special tools to make barrels for these small arms in quantity, and actually had to use english tools to make english type rifles, greatly inferior to our own, to get any at all for our men. the other day i saw it announced with pride in the newspapers that our rifle had won in competition over all others; but we did not have them when wanted, and probably have not made them yet. we had no field pieces to use abroad, and our artillery was equipped with the french .75. a few naval guns were landed and mounted toward the termination of hostilities. the aeroplane scandal is known of all men. and it was a year after we declared war before we entered europe in force, and equipped then with english rifles and french field guns; and our men were transported to europe mainly on british ships. but in this trying period several things stand out clear and bright, and as inspirations for the future. two are psychological: the spirit of americans of alien descent, and the participation of our great educational institutions; one, official as well as psychological, the selective service draft. the patriotism of the native american of the old stock goes, of course, without saying. the true ring of our heterogeneous population of foreign extraction was to many a joyful surprise. that so many who had never seemed to amalgamate with our customs, were largely uneducated, and did not even speak our language, should respond so willingly and gladly to the call to the colors, was a source of some amazement. not being in their confidence or intimacy, many of us little realized their loyalty: which reminds me of an italian bootblack who in conversation told me that he wished to travel. i spoke of the beauties of naples and sorrento and that neighborhood, and was rather abashed when he said: "yes, but i would rather see my own country first." i hope that lesson will always be fresh in memory. the same spirit of americanism marked all nationalities, not excepting the german. the lists of draft registrants from, let us say, the east side of manhattan borough, reminded one of the epistle for whitsunday: "parthians, and medes, and elamites, and the dwellers in mesopotamia, and in judã¦a, and cappadocia, in pontus, and asia, phrygia, and pamphylia, in egypt, and in the parts of libya about cyrene, jews and proselytes, cretes and arabians," all heard, and, with the deep realization of newly liberated peoples, showed themselves proud to answer the call. a recent war or liberty loan poster is most suggestive. you read on it a list of men's names, mostly unpronounceable, and suggestive, in the language of the same scripture just quoted, "of every nation under heaven," and this is summed up in the phrase, "americans all." truly, a fitting tribute to our adopted citizenry, equal in loyalty, bravery, and self-sacrifice to the best of the old americans. among them, as just noted, the german names stand out boldly. they are so numerous, in fact, as to attract less notice in this country than they deserve; let us hope that they will be noticed and taken to heart in the misguided country where such names originated. i would that our american army, made up in large part of such men, could occupy germany for a time as it formally occupied cuba, for its own good, and give a much needed object lesson in the theory and practice of free institutions. these men, as i have said, were largely uneducated. i turn now for a moment to those in our great seats of learning, and to the heads and faculties and trustees of those institutions. their stand was doubtless one to be expected, but is still worthy of remark. that the best blood in england suffered the most losses i think is conceded. that would have been the case with us if the war had broken on us as it did on great britain. as it was, our boys courted the posts of danger--aviation; submarine chasers; balloon observation, and so on. some left college to enter the service; others stayed at college awhile, but in order to train and perfect themselves in the art of war. the colleges themselves became military schools; the dormitories barracks. for a short time some anxious mothers held back, and it is little wonder that they did. but it was not for long, and soon the woman who could wear a pin, with one, two, or more stars in it on her bosom, gloried in it, while she who wore a star of gold, in all her grief still cherished the solemn pride, as lincoln called it, of having laid so costly a sacrifice upon the altar of her country. whether the son was a student or ploughboy, a bootblack or factory hand, or the son of a millionaire, the feeling was the same. in fact, there was a tendency at first among the people at large to suspect the well-to-do and moneyed classes of holding back their sons. this soon wore off; and one of the most inspiring as well as instructive sights i ever saw was on this very island; the parade of war mothers on the bar harbor fair grounds; women in all walks of life, some with gold stars on their badges. college presidents who encouraged the entry of students into military service came in for adverse criticism, but that soon passed, and now that college, the largest percentage of whose students and graduates went into the service, points with the greatest pride to its record in that respect. i think, however, that the greatest achievement of the war, and the one that makes most for the future safety of our country, is the success of the selective service draft. all the books ever written, all the lectures ever delivered, attacking the pacifistic tendencies of our people, fail to accomplish anything of consequence in comparison with that achievement. whether our people have undergone a great psychologic change i know not. it is certain that at no time previously had they submitted willingly to be drawn into service. for a century and a quarter militia and volunteers were the basis of the armed power on land. during the civil war drafting meant riots. during all our prior history bounties for enlistment were an accepted fact. some of us may have looked into general upton's great book called the "military policy of the united states." until recently it was withheld, for some reason, from general publication. it is the basis of a later work by another author, "the military unpreparedness of the united states," which appeared about 1916. both exhibit in startling fashion the fundamental evils of volunteering and bounties. but not until the stress of this great war did the old theories give way. we had a real man as provost marshal general, and his name is enoch h. crowder, and my own university (princeton) and others as well, honored themselves recently by conferring the ll.d. degree on him. i care not whether he evolved the draft machinery himself or whether it was suggested by others. probably it was a result of both processes; at least he knew a good thing when he saw it, and, like other large men, was unconcerned about whose idea it was. here was the problem: several million men of age 21 to 31 to be listed, with particulars about them; those available for military service to be selected; from these, a certain number to be drawn by lot. the system used in the civil war was hopelessly inadequate; army officers could not be spared to supervise the lists; how were the names to be obtained? how recorded? how drawn? the origin of the fundamental plan was told me by general crowder himself on the day when he received his princeton degree. he said that he was in his office racking his brain for a method of registry that would not take a year to operate, when a congressman came in, and to him he told his difficulties. the interview terminated much like that of alice in wonderland and the caterpillar, who told her how to change her height as it crawled off through the herbage. as the anonymous congressman was going out through the door, he said over his shoulder: "if they can elect a president in one day, they can register in one day." let us thank god that the general had good ears, and excellent communication between them and an active brain. "elect in one day"--48 states; each with so many counties; each county having so many municipalities; each municipality so many election districts; civil, not military, officers for all of them; officers known to and knowing the people; governors; mayors, election boards. _why not_? here is the machinery ready made, and at hand! all that is needed is to get it going. forty-eight governors responded enthusiastically; all forty-eight kept the great secret ready to pass it on to local officials; the result we all know. two other things were needed; the willingness of those that were of draft age to come and say so; and the confidence of the public in a fair drawing. the latter was secured by the use of master numbers applicable to every district; the former came naturally as a result of the system itself. every man of draft age became qualifiedly a volunteer, and marched to the polling place, saying: "here i am when wanted." to this the abolition of bounties and substitutes, the curses of the old system, largely contributed. these are three of the great things for which we should give thanks on this fourth of july: the solidarity of americanism; the leadership of our universities, and a practical and popularly acceptable method, now a precedent for all time, of calling up the man power of the nation. a fourth is the resultant of them all: a great army of young men (as has been said many times), future leaders in political life, keenly alive to the real freedom of our american system and determined to uphold it and to stand no nonsense about it. but for the consciousness of our possessing this element, and but for our faith in it, we might well look with most anxious foreboding at many troublesome and dangerous questions now uppermost in our national life. for in the midst of triumph sounds the note of anxiety--many discordant notes in fact. will the treaty finally be ratified? will peace last? will the germans respect their promises and fulfill them? or will they, already talking again of a scrap of paper, straightway begin to prepare for a fresh coup twenty-five years or so hence? must the peace-loving peoples of the world still apply themselves to that most distasteful of all tasks, the invention and manufacture and practice of means of destroying life and property in war? and what about internal affairs? are individual enterprise and talent to be smothered by rule? is the constitution of the united states a worn-out old one-horse shay, ready to drop to pieces all at once? is the senate a back number? is the peaceful rule by majority to be exchanged for bolshevik dictatorship? is our transportation industry to be ruined by taxes and rate control at one end and cost of labor at the other? should we take an active part in the affairs of the eastern hemisphere, and invite european and asiatic powers to help regulate our continent; in short should the national policy called the monroe doctrine be abolished? these and many similar questions are pressing for solution. they are not mere fancies; they are not partisan issues, though many stentorian shouters proclaim them such; they are live and vital questions which must be solved and will be solved, doubtless at great cost in treasure and perhaps at some cost in blood. that they will be rightly solved in the end i have no doubt. nothing is settled, said someone, i forget who, until it is settled right. it is for you and me and all of us to bear in mind that our work is only half done: that our sacrifices and labors and efforts during this great war that is just closed, i hope forever, are but the beginning, and that we owe it to our country and our children to do what we can to encourage sanity, deliberation and temperance of thought, speech and action in all classes of the people. mild as that sounds, it is a stupendous task to perform. there rarely was a time when unthinking people were not more inclined to listen to a demagogue rather than a statesman; and few people think at all; still fewer think straight. it is a rebellious people, saying "prophesy not unto us right things, speak unto us smooth things, prophesy deceits." it is a time of epithets rather than of logic, of lying epigrams rather than solid truths. all the wealthy, it seems, are corrupt; all money in large amounts is tainted; even the scales of justice are accused of falsity. ebullitions of this kind often indicate an undercurrent little suspected. i realize that i am saying little or nothing that is new, and i have no new methods or theories to offer for meeting the situation. one thing is certain; before we can teach other people to think clearly, we must be able to think clearly ourselves; to formulate and make others realize the real issues; to perceive the fallacy or confusion in the opposing line of thought, and point it out without offense. it is a maxim among lawyers that a case well stated is half argued, and nothing can be more to the point at this time. we still have real statesmen; let us listen to them with attention and take care not to hurry too much in deciding. impulse leads to irretrievable error much oftener than does deliberation. sober second thought is usually the better. but, notwithstanding this anxiety, let us rejoice in the great victory of liberty over autocracy and militarism. as we look back over the last five years we see many a vision; some dreadful nightmares, others with the seeming of the good god taking direct part in the affairs of men. the rape of belgium, the miracle of the marne, the tedious deadlock in the trenches, the ghastly failure at gallipoli, the collapse of rumania, the tragedy of russia, the debacle in italy, the heroism of ypres and passchendaele and verdun; then the ever present dark shadow of the submarine; the agonized cry of exhausted england and france for men, men, men, as one offensive broke towards calais, another towards amiens, another straight for paris by way of chateau thierry, while our brave boys seemed to be training interminably; the halting of the hun at belleau wood and chateau thierry; the crouch of the american wildcats for their spring; until, as men's hearts seemed to fail them, and the cry went up, "how long, o lord, how long?" the little bell of st. mary's-by-the-sea rang as it had never rung before. peal after peal: some good news: what is it? "the allies have attacked; the front between soissons and chateau thierry is all crumpled up: the germans cannot hold the salient." smash after smash: it is our turn now; in flanders, in picardy, in champagne, in lorraine: by britain, by france, by america, singly, doubly, and all together; each day a new victory headlined; the military lines approaching the french boundary; the thumbtacks moved each day on the war maps; st. mihiel salient wiped out; rheims freed of bombardment; argonne wood, our present day battle of the wilderness, takes time and its awful toll of human lives, but yields, for the first time in history, to an attack by american troops; grand prã© and open country beyond. forward again, until a great railroad line is cut, and sedan, the catastrophe of 1870, becomes the final triumph of 1918. how we watched the telegraphic bulletins! how we studied the maps! until, after one false report of an armistice, the real armistice came, and our peace-loving people, joint victors in the greatest war of all time, turned into a horde of lunatics. what a day it was, that eleventh of november! i was in boston to attend the wedding of a nephew, a colonel of artillery, who had commanded his regiment at cantigny and had later been ordered to this country in connection with organization and training of troops. the guests had to walk, as no vehicle could thread the crowd. late editions of the papers contained the armistice terms in full, and, as our somewhat numerous family was gathered for five o'clock tea, one member was deputed to read the terms aloud, and there were attentive listeners. after he had finished, no one spoke for a moment; and then a voice said, "that seems to cover the ground." truly we have much to thank god for, this fourth of july. we have left undone some things that we ought to have done, and we have done some things that we ought not to have done; but i cannot say now that there is no health in us. once again we have had a new birth of freedom; once again we highly resolve that our dead shall not have died in vain; once again we resolve, and i think that we have shown by deeds our determination, that "government of the people, by the people, and for the people shall not perish from the earth." american steel foundries v. tri-city trades council. (u. s. supreme court, dec. 5, 1921). _strikes--picketing--the clayton act--circumstances to be considered in injunction case_. [note--the following case on picketing is so important, being the latest and a final decision of the highest court in the united states on a matter which has been treated differently by various courts, that we reproduce the opinion here, as published in the "new york times."--editor]. taft, ch. justice: this is a picketing case. only two men in the employ of the foundries had responded to the calling of the strike by the tri-city council. they were picketers, were defendants, and were enjoined. only one of them was a member of a union of that council. the case involves, as to them, the application of section 20 of the clayton act, of which the provisions material here are those which forbid an injunction in behalf of an employer against, first, persuading others by peaceful means to cease employment and labor; second, attending at any place where such person or persons may lawfully be for the purpose of peacefully obtaining or communicating information; third, peaceably assembling in a lawful manner and for lawful purposes. the act emphasizes the words "peaceable" and "lawful" throughout the phrases which were used. we do not think that these declarations introduced any new principle into the equity jurisprudence of the federal courts. they are merely declaratory of what was the best practice always. congress thought it wise to stabilize this rule of action and to render it uniform. its object was to reconcile the rights of the employer in his business and in the access of his employã©s to his place of business without intimidation or obstruction, on the one hand, and the right of the employã©s, recent or expectant, to use peaceable and lawful means to induce prudent principles and would-be employã©s to join their ranks, on the other. if, in their attempts at persuasion or communication, those of the labor side adopt methods which, however, lawful in their announced purpose, inevitably lead to intimidation and obstruction, then it is the court's duty--and the terms of section 20 do not modify this--so to limit what the propagandists do as to time, manner and place as to prevent infractions of the law and violations of the right of the employã©s and of the employers for whom they wish to work. in going to and from work, men have a right to as free passage without obstruction as the streets afford, consistent with the right of others to enjoy the same privilege. we are a social people and the accosting by one of another in an inoffensive way and offer by the one to communicate and discuss information with a view to influencing the other's action, are not regarded as aggression, or a violation of that other's right. if, however, the offer is declined, as it may rightfully be, then persistence, importunity, and following do become unjustifiable annoyance and obstruction which is likely soon to savor of intimidation. the nearer this is to the place of business, the greater the interference with the business and especially with the property right of access of the employer. such an attempted discussion attracts the curious, or, it may be, interested bystanders. they increase the obstruction as well as the aspect of intimidation which the situation quickly assumes. in the present case, under the conditions which the evidence discloses, all information tendered, all arguments advanced and all persuasion used were intimidation--they could not be otherwise. it is idle to talk of peaceful communication in such a place and under such conditions. the numbers of the pickets in the groups constituted intimidation. the name "picket" indicated a militant purpose, inconsistent with peaceful persuasion. the employã©s were made to run the gauntlet. when one or more assaults or disturbances ensued, they characterized the whole campaign, which became effective because of its intimidating character, in spite of the admonitions given by the leaders to their followers as to lawful methods to be pursued, however sincere. our conclusion is that picketing thus instituted is unlawful and cannot be peaceable, and may be properly enjoined by the specific term of "picketing" because its meaning is clearly understood in the sphere of the controversy by those who are parties to it. we are supported in that view by many well-reasoned authorities, although there has been contrarity of view. a restraining order against picketing by that name will advise earnest advocates of labor's cause that the law does not look with favor on an enforced discussion of the merits of the issue between individuals who wish to work and groups of those who do not, under conditions which subject the individuals who wish to work to a severe test of their nerves and physical strength and courage. but while this is so, we must have every regard for the congressional intention manifested in the act to the principle of existing law which declares that ex-employã©s and others properly acting with them shall have an opportunity, so far as is consistent with peace and law, to observe who are still working for the employer, to communicate with them and to persuade them to join the ranks of his opponents in a lawful, economic struggle. regarding as primary the rights of the employã©s to work for whom they will, and to go freely to and from their place of labor, and keeping in mind the right of the employer incident to his property and business to free access of such employã©s, what can be done to reconcile the conflicting interests? each case must turn on its own circumstances. it is a case for the flexible, remedial power of a court of equity which may try one mode of restraint, and if it fails or proves to be too drastic, may change it. mcgann co. v. labrecque co. (essex circuit court, jan., 1922). _action of trespass--lease and sale of property--limitation of term--jurisdiction of district court_. case of joseph f. mccann, trading as the mcgann company, against la brecque company. action at law. trespass. mr. milton m. ungur for plaintiff. messrs. burnett, sorg, murray & duncan for defendant. (conclusions). dungan, j.: this is an action of trespass brought by the plaintiff against the defendant for the wrongful removal of plaintiff's goods from the defendant's premises under the following conditions: p. ballentine & sons, a corporation, demised the premises in question to defendant by lease dated august 1st, 1917, for a term commencing november 1st, 1916, and terminating april 30th, 1926. the lease provided: "it is further understood and agreed between the parties hereto that a sale of the property by the party of the first part shall terminate this lease upon six months' written notice to the party of the second part; and, in lieu of compensation, it is hereby agreed that the rent shall be waived during the six months notice to vacate." by deed dated october 15, 1918, proved october 30, 1918, and recorded october 31, 1918, p. ballentine & sons conveyed the premises in question by warranty deed to the plaintiff, subject to the above tenancy. by endorsement dated april 30, 1918, made upon the lease, p. ballentine & sons assigned said lease and all of the rights of the lessor thereunder, to the plaintiff. october 30, 1918, there was served personally upon defendant a notice, dated on that day, signed by both the grantor and the grantee in the deed last mentioned, as follows: "you will please take notice that the premises leased by you from p. ballentine & sons by written lease dated the first day of august, 1917, have this day been sold to labrecque company, inc., and notice of the cancellation of your said lease is hereby given you pursuant to that clause of your lease reading as follows: 'it is further understood and agreed between the parties hereto that a sale of the property by the party of the first part shall terminate this lease upon six months' written notice to the party of the second part, and in lieu of compensation it is hereby agreed that the rent shall be waived during the six months' notice to vacate.'" the defendant did not remove from said premises at the expiration of six months and the statutory demand for delivery of possession was personally served on defendant. after the expiration of said period, he refused to vacate the premises, and thereupon the defendant here instituted and prosecuted summary proceedings in the second district court of the city of newark, in which court judgment for possession of the premises was rendered may 23, 1919, and the removal of plaintiffs, being the alleged act of trespass for which this suit is brought, was, by virtue of the order of removal, made by that court upon said judgment. there is no contention that there was any irregularity in the proceedings of that court, if the court has jurisdiction; but the plaintiff here insists that the provisions of the lease above quoted constituted a condition, or covenant, and not a limitation of the term, and that consequently the district court did not have jurisdiction. the parties hereto have entered into a stipulation to submit this suit to the court for judgment upon the complaint, answer and reply, which correctly sets forth the facts as above stated, and adds: "if the court is of the opinion that the plaintiff is entitled to recover, judgment is to be rendered in favor of the plaintiff and against the defendant, and there is to be an assessment of the damages by a jury drawn for that purpose, reserving however all questions of law as to the measure of damages; and, if the court is of the opinion that the plaintiff is not entitled to recover, judgment shall be entered in favor of the defendant as if said cause had been tried and a verdict in favor of the defendant had been rendered"; both parties reserving the right to appeal from the judgment to be entered. it is admitted on behalf of the plaintiff that, if the said provision of the lease constituted limitation of mcgann's terms, then the district court had jurisdiction and the plaintiff cannot recover in this suit. the jurisdiction of the district court in such cases is confined in its application to the instant case, to "when any such person shall hold over and continue in possession ... after the expiration of his ... term," etc. admittedly the decision of this case rests upon whether or not the sale of the premises and the notice given by the lessor and labrecque company to the plaintiff ended the term of the mcgann company. if it did--if this was a limitation of the plaintiff's term,--the jurisdiction of the district court was complete. the case of quidort v. bullitt, 60 n. j. l. 119, is very much in point. in that case it appeared by the affidavit filed with the justice that the defendants, in may, 1885, leased to the prosecutor a seaside cottage at cape may for five years, which lease was extended for two successful periods. the lease contained the following provision: "lessors are to have the privilege of terminating the lease at any time upon giving six months' notice of their intention to do so, prior to the first day of july or any year during the lease.". on october 19, 1895, the defendants caused to be served on the prosecutor a written notice, which, after reciting the terms of the lease stated: "we have determined to avail ourselves of the privilege of terminating the lease. we now give you notice of the exercise of our privilege and of our intention to terminate the said lease on the first day of may, 1896, and demand that you surrender us possession of the leased premises at that time, in accordance with the provisions contained in the lease. this right to terminate the lease is exercised in accordance with the lease and the several extensions thereof. we shall expect you to deliver to us, on the first day of may, 1896, the cottage and bath houses mentioned in the said lease, and also the articles mentioned and set out in the inventory annexed thereto." the tenant refused to deliver possession and, on the 6th day of may, 1896, instituted proceedings before the justice, which were the subject of review by certiorari in that case. it is insisted on behalf of the plaintiff that whether or not the quoted provision of the lease and the giving of the notice constituted a mere condition or covenant or was a limitation, was not decided in that case; but, while it is not expressly so stated, it seems to me a decision of that question was absolutely essential to a decision of the case. chief justice gummere, in delivering the opinion of the supreme court (page 120) said: "the question for determination is whether the justice had jurisdiction of the cause; if he had jurisdiction, then the writ in this case should be dismissed, but, if he had not, then the proceedings before him should be set aside." again on page 122 he said: it is alleged by the prosecutor that the facts above recited did not bring the case within the jurisdiction of the justice for the following reasons: 1. that the privilege of terminating the lease was not a term, condition or limitation of the original lease, but a special privilege, reserved to the lessors, of ending the original term." thus it is plain that the precise question in issue in this case was before the court, and that it was necessary for the court, in order to reach the decision it did, to decide that the quoted provision would constitute a limitation upon the term fixed by the original lease. the case of miller v. levi, 44 n. y. 490, is also applicable to this case. in that case miller demised to levi, reserving the right to sell the demised premises and to limit levi's term thereon to the expiration of sixty days after notice of sale. the sale and notice specified in the lease was made. it was insisted that the justice had no jurisdiction of the summary proceedings, because this can only be resorted to where the term of the lease of the lessee "has expired by lapse of time," which it was said was not the fact in that case. the court said: "immediately upon sale by miller and notice thereof to the tenant the limitation attached to the estate of the latter, without further act on the part of miller. there then arose a limitation of his term, to wit, its expiration on the first of may following. the act itself, in the lease contemplated, to wit, a sale without notice, created the expiration. nothing further was necessary.... the 'term' of the lease must therefore be taken to have 'expired' on the first of may, 1864." i think, therefore, that when the leased property was sold, and the notice of sale given to mcgann on october 30th, 1918, the term of mcgann under the terms of the lease expired six months thereafter; that the sale and notice constituted a limitation of his term; that the second district court of the city of newark, before which proceedings to remove mcgann were instituted may 2nd, 1919, had jurisdiction to hear and determine the matter before it; and that, therefore, the defendant is not guilty of the trespass alleged against him. judgment is given, therefore, against the plaintiff and in favor of the defendant. * * * * * one hunting on sunday, in violation of statute, is held to be answerable for injuries accidentally inflicted upon a bystander by the voluntary discharge of his gun, in the vermont case of white v. levarn, 108 atl. 564, annotated in 11 a.l.r. 1219, on violation of sunday law as ground for civil action for damages. * * * * * the keeping of high explosives in a public highway in a populous community, without guard or signal, to the terror, alarm, and great danger of the citizens, is held to be a common nuisance, indictable at common law, in kentucky glycerine co. v. com. 188 ky. 820, 224 s. w. 360, annotated in 11 a.l.r. 715. * * * * * false swearing by a witness is held to be such an obstruction of justice as to constitute a direct contempt of court, in riley v. wallace, 188 ky. 471, 222 s. w. 1085, annotated in 11 a.l.r. 337. * * * * * a petition filed against a partnership by one partner alone must, under section 5a of the bankruptcy act and general order no. 8, conform to the requirements of an involuntary petition and must, therefore, allege insolvency and that an act of bankruptcy was committed by the partnership. matter of ollinger & perry. 47 am. b. r. 203. * * * * * a parent who takes a deed from his child soon after it reaches majority and while it is living under his roof is held to have the burden of clearing the transaction of every suspicion, and establishing its fairness and good faith, in the arkansas case of shackleford v. shackleford, 223, s. w. 561, annotated in 11 a.l.r. 730. * * * * * giving a broker the "exclusive sale" of a parcel of real estate is held not to preclude the owner from selling to one whom he had reason to believe had not been procured by the broker, in roberts v. harrington, 168 wis. 217, 169 n. w. 603, annotated in 10 a.l.r. 810, on whether an ordinary broker's contract excludes right of sale by owner. miscellany some state notes. on dec. 11 mrs. mary j. rellstab, wife of united states district court judge john rellstab, died at her home in trenton. she had been an invalid for many years. before her marriage, in 1905, she was miss mary johnston whittaker, daughter of the late george r. and mrs. mary whittaker. besides her husband, two sisters, mrs. j. f. clement of philadelphia and miss emily whittaker of trenton, survive. mrs. rellstab was for many years active in church and charity work. on nov. 25 the supreme court suspended three lawyers charged with unprofessional conduct: mr. william m. rysdyk, of jersey city, for one year; mr. charles sloff, of passaic, for one year, and mr. charles k. richmond, of passaic, for two years. in the first two cases the cause was financial misappropriation, and in the last case an endeavor to influence a juryman. new jersey bar examinations, november term, 1921. attorney's questions. 1. a party in a proceeding in the orphans' court appealed from the decree of said court to the court of errors and appeals. was this proper? 2. a held in trust for f certain lands and also certain bonds. he died intestate, leaving two sons b and c, b being the elder. c was appointed administrator. to whom did the title to the land and to whom do the bonds descend? 3. w being under indictment by a federal grand jury, applied to the court for compulsory process for the purpose of obtaining witnesses in his behalf. his application was denied. was the court right? 4. a railroad company made a mortgage upon its lands, chattels and franchises. it was duly recorded as a real estate mortgage but it was not recorded as a chattel mortgage. was it valid as to the chattels against creditors of the company? 5. s went to work for b and took two flags with him. he allowed b to use one of them and helped put it on b's building. subsequently a hail storm destroyed it. he then sued b for the value of the flag. should he recover? 6. g agreed to sell and deliver to j certain goods on or before the 15th of july. instead of delivering the whole of the goods he attempted to deliver the same in instalments, the last instalment to be delivered on july 15. j refused to accept the goods. was he bound to do so? 7. where there is a plain repugnancy between the provisions of an original contract, and those of a supplemental one between the same parties relating to the same subject matter, which one controls? 8. s, being indebted to a number of persons, advertised and sold at public sale all of his stock to one person. was this contrary to the bulk sales act of 1915? 9. one member of the firm of w & co. which was still in existence, without the authority of the other member, confessed a judgment to y, a creditor of the firm. was the judgment binding upon the firm? 10. an agent acting within the scope of his authority, did certain fraudulent acts. was the principal liable for these acts of the agent? 11. what are the requirements to make an instrument negotiable? 12. john smith made a will, wherein he gave his son, thomas, a legacy of $5,000, adding that the legacy should be void if thomas married any one of the daughters of robert jones. thomas having married one of jones' daughters, demanded the legacy, claiming that the condition was void. was his claim good? 13. (a) how soon after the death of a testator may his will be admitted to probate? (b) how soon after the death of an intestate may administration of his estate be granted? 14. what is the difference between the relief granted in equity in cases of mutual mistake and of the mistake of one party? 15. a made a conveyance of real estate to b for the purpose of defrauding his creditors. a having died intestate, his heirs brought suit in chancery to compel b to convey the property to them. what should the court do? 16. b made a will leaving all his property to d, whom his (b's) mistress had fraudulently represented to him to be his child. c, the heir at law of b, filed a bill in chancery to set aside the will on the ground of fraud. d moves to strike out. what should the court do? 17. b sued a for slander. a pleaded that he was intoxicated at the time he uttered the slander. b moved to strike out this defence. what should the court do? 18. a sued the city of n for damages. he showed that he had been run over by an ash-cart owned and operated by the city by reason of the driver's negligence and that the driver was drunk at the time and was drunk to the knowledge of the city's foreman when the latter sent him out with the cart. the city moved to nonsuit. should the motion be granted? 19. a sued b for damages by reason of injuries caused by the joint negligence of b and c. he recovered a judgment which b paid. b then sued c for contribution. could he recover? 20. a was indicted for murder of b. on the trial it was shown that a killed b while b was trying to rob him on the highway. the prosecutor contended that a could not be acquitted unless it appeared that he could not have rendered the attempt to rob abortive by any means less radical. the court overruled this contention. was the ruling correct? 21. a husband decided to move from new jersey to new york. his wife refused to go with him and filed a bill for maintenance. could she succeed? 22. how many incorporators must there be to incorporate a company in new jersey? what facts should appear in the certificate and how should it be executed? 23. a witness at a trial desired to use his own memorandum to refresh his memory. could he do so? 24. a promissory note on its face was made payable in money. parol evidence was offered to prove it was payable in stock and that interest on the note was equivalent to the amount of dividends on such stock. should this evidence be admitted? 25. a landlord and tenant were joined, as defendants, in an action for trespass arising out of the same act. an objection was made for misjoinder. is the objection good? 26. in a civil action against a husband and wife for damages resulting from an atrocious assault committed by the wife with the encouragement of the husband, an order was made to hold both to bail. was this legal? 27. a sued the state of new jersey on a book account. could he maintain his action? 28. at the hearing of a suit in chancery, defendant set up the statute of limitations, but this defense did not appear in the answer. could the defendant avail himself of it? 29. a bill in equity failed to state any equitable cause of action. what would you advise your client to do? 30. a and b came into the office of c, an attorney, to have him draw a deed from a conveying property to b. before the deed was drawn, c discovered that the title to the property was defective. should he divulge this fact to b, who has had nothing to do with his employment? counselors' questions. 1. a final judgment in the circuit court was brought by writ of error directly into the court of errors and appeals. was this legal? 2. a widow, whose dower had not been assigned to her, remained upon the homestead of her deceased husband and took to her own use the crops growing thereon. was she entitled to the same? 3. the board of aldermen of the city of j passed an ordinance that no one should conduct a grocery store in the city unless he was a citizen of the state of new jersey. a, a citizen of new york, having been found guilty of violating this ordinance, certioraried his conviction to the supreme court. what should the court do? 4. a mortgagee in a chattel mortgage held the same for ten days after the delivery of the mortgage and then recorded it. in the meantime a judgment was recovered against the mortgagor, execution issued and a levy made upon the goods and chattels named in the mortgage. which has priority? 5. s agreed to take the automobile of t to a shop to be repaired and to return it after it was repaired. he took it to the shop, but failed to return it. it was later destroyed by fire while in the shop, and t sued s because of his failure to return the automobile. was he liable? 6. a purchased an automobile from an infant and sold it to b in good faith for value, neither a nor b having notice of the infancy of a's vendor. was it a valid sale? 7. r was indebted to s and the latter started a suit to recover the amount due. thereupon g agreed with s that if he would discontinue his suit and wait for three months before again suing, he would be responsible for the debt. this was done. at the end of the three months was g liable? 8. l agreed to do certain work, part of it to be done on sunday. t subsequently agreed to pay l for such work. was he liable? 9. an agent received the instructions of his principal, knowing that in order to carry them out he would have to commit a nuisance, and did actually commit such nuisance. the person injured sued the agent. was he liable? 10. the partnership accounts between d and m were unsettled, although they had dissolved partnership. d alone could settle them, but refused to do so. what kind of action could m institute against d? 11. smith purchased a horse from jones, giving him in payment a check on a bank which he (smith) had had certified. smith having learned that jones had no title to the horse stopped payment on the check. jones sued the bank which answered, setting up want of consideration for the check. could it do so? 12. a died january 1, 1915, leaving a last will wherein he bequeathed $5,000 to his son, john, then aged 18, and $5,000 to the a hospital, and the residue of his estate to his daughter, jane. the legacies remaining unpaid on january 1, 1918, john and the hospital sued the executors for them, claiming also interest. from what date should interest be allowed, if at all? 13. mary jones died june 1, 1921, leaving a husband, peter jones, by whom she had never had children, and three children by a prior marriage. she left a will devising her real estate to her children, but made no disposition of her personal estate. to whom did her real and personal estate go on her death? 14. b, a creditor of the insolvent firm of j. & s., agreed to sell and assign his claim to d for the sum of $2,000. b thereafter refused to make the assignment. d thereupon filed a bill in chancery against b for specific performance. could he maintain his action? 15. a was in possession of a house and lot. b, his neighbor, insisted that a's house was over his line by a foot. how could a test his title, b refusing to bring an action? 16. brown, as executor of smith, filed his final account in the orphans' court of salem county, and gave notice of settlement. grey, one of the residuary legatees, desired to have the accounting in chancery. was this possible? if so, how should he proceed and what must he show? 17. in the trial of an action for libel wherein plaintiff claimed compensatory damages only, defendant offered in mitigation of damages evidence that the publication was made in good faith and with honest belief in its truth. the court excluded the offer, and this ruling was attacked on appeal. was it correct? 18. plaintiff, aged nine, who was struck and injured by an automobile while crossing a street, brought suit. the defense was contributory negligence. the court charged that a child of that age could be charged with contributory negligence, but that in considering that question it was for the jury to consider whether the plaintiff had exercised the caution which would reasonably be expected from one of his years. was this charge correct? 19. a, an owner of a dwelling house, brought an action against b, who had a tannery in the next block, alleging and showing on trial that noxious fumes from b's tannery had made plaintiff's house untenantable. b moved to nonsuit on the ground that these fumes injured a large number of houses, were a public nuisance and the only remedy was by indictment. the court refused to nonsuit. was this ruling correct? 20. in what case and under what circumstances can a writ of error issue directly from the court of errors and appeals to the court of oyer and terminer? 21. at common law what right had a husband in personal property acquired by the wife during coverture? what is the rule in new jersey? 22. the treasurer of a corporation died. there was no provision in the by-laws for the election of his successor. how can the place be filled? 23. on a bill for the construction of a will, evidence was offered of declarations made by the testator at the time of making the will as to his meaning and intention. should this evidence be received? 24. in a suit involving an account, it appears that the defendant had admitted that a certain sum was due. the defendant, however, demanded the production of the plaintiff's books and on refusal moved for a nonsuit. should the motion be granted? 25. how is an issue of fact created in a lawsuit? 26. where may the venue be laid in a transitory action? 27. how should service of summons and complaint be made in a case where an affidavit of merits is desired? 28. x in a bill against y in his prayer asked for answer without oath. y answered under oath. how should the answer be construed? 29. a filed a bill in chancery and failed to pray for general relief. can he succeed if the special relief prayed for fails? 30. a, clerk in a law firm, not yet admitted to the bar, receiving a regular salary, had his friends retain his employers. should the firm divide its fees with the clerk? new jersey bar admissions, november term, 1921. the following were admitted as attorneys by the supreme court of this state at the november term, 1921: elizabeth. bender, albert c., 714 elizabeth ave. eisenberg, henry m., 39 third st. liotta, eugene a., 95 broad st. weiner, frank s., 128 broad st. hoboken. capelli, george a., 227 madison st. greenberg, william, 84 washington st. levenson, jay m., 51 newark st. stover, harriet c., 1037 bloomfield st. jersey city. blumberg, leo, 139 magnolia ave. ewald, henry, jr., 587 summit ave. hoagland, inez, city hall. kelly, james francis, lincoln trust bldg. kriegel, louis j., 665 newark ave. kuebler, carl s., 75 montgomery st. mccarthy, james j., 15 exchange pl. pforr, arthur, 75 montgomery st. newark. brown, john s., central high school, new and high sts. citret, harry, 790 broad st. dorgeval, harold f., 164 market st. eisner, mortimer, 585 high st. eppston, joseph g., 20 clinton st. federici, christine a., 1025 kinney bldg. kinkelstein, milton j., 828 broad st. giordano, john c., 226 hunterdon st. halpin, julius h., 133 somerset st. merz, charles d., 324 hawthorne ave. padalino, frank p., 216 camden st. pollard, robert s., 164 market st. potoker, benjamin, 40 beacon st. reid, alexander f., jr., 296 mulberry st. schneider, louis, 790 broad st. thiele, richard hardie, prudential ins. co. vanderbilt, leslie l., 14 n. 9th st. trenton. cella, g. andrew, 345 hamilton ave. heher, john l., 301 commonwealth bldg. josephson, leon, 1009 greenwood ave. other places. bremer, philip m., 41 paterson st., new brunswick. colver, frederick b., tenafly. dart, william a., 201 sheen bldg., atlantic city. deyoe, willard l., u. s. trust bldg., paterson. fuller, ernest, 60 fairview ave., so. orange. galanti, benjamin p., main st., hackensack. greenberg, victor, 153 grove st., passaic. gottko, anthony a., 37 e. 26th st., bayonne. hahn, harold h., 120 broadway, n. y. city. hendler, louis l., 165 french st., new brunswick. hendrickson, frank a., 117 main st., mt. holly. jackson, george t., 706 n. ohio ave., atlantic city. loder, william w., 107 e. commerce st., bridgeton. lore, harry t., section of surety bonds, treas. dept., washington, d. c. mcdonough, peter j., jr., babcock bldg., plainfield. mcelroy, leon e., 115 main st., woodbridge. plympton, george f., 117 clinton pl., hackensack. preston, joseph a., 224 park ave., cliffside. ridgeway, s. paul, 1 n. iowa ave., atlantic city. thompson, rufus b., 505 federal st., camden. visscher, barent l., 84 william st., n. y. city. warsinski, carl h., 50 burnside ave., cranford. woods, elmer b., glassboro. zirpoli, anthony p., 126 market st., paterson. * * * * * the following were also admitted as counselors-at-law: counselors. bergen, francis l., 2nd nat. bk. bldg., somerville. bowne, edward a., south river. braelow, joseph c., 800 broad st., newark. buchanan, jessie c., 40 w. state st., trenton. deegan, joseph f., 415 raritan bldg., perth amboy. fleming, russell, 790 broad st., newark. gunther, edward c., hudson tr. bldg., w. hoboken. handford, james l., 790 broad st., newark. hirschberg, samuel l., 84 washington st., hoboken. isaacs, lionel, 143 summit ave., w. hoboken. kaplan, joseph d., 200 s. broad st., trenton. kepsel, julius a., 243 montgomery st., jersey city. krohn, herman, 763 broad st., newark. lesser, louis b., 9 clinton st., newark. matthews, john a., 31 clinton st., newark. mccloskey, w. durward, thompson bldg., lakewood. miele, philip j., 75 montgomery st., jersey city. morrison, george r., 190 college ave., new brunswick. praissman, maurice l., 537 arch st., camden. rauch, sylvan j., 53 penna. ave., newark. reussille, leon, jr., 34 broad st., red bank. satz, david m., 763 broad st., newark. schroth, godfrey w., jr., 412 broad st., trenton. schultz, vincent, 790 broad st., newark. seiler, isaac w., 472 broadway, bayonne. silberman, paul r., 776 broad st., newark. simandl, harold, 790 broad st., newark. stiles, harry a., 95 river st., hoboken. stover, charles w., 84 washington st., hoboken. sullivan, james a., 15 exchange pl., jersey city. tepper, harry l., 800 broad st., newark. varbalow, joseph, 540 federal st., camden. waldman, herman, 19 clinton st., newark. zimmerman, thomas l., jr., 232 rider ave., n. y. city. zucker, maurice j., 790 broad st., newark. obituaries. ex-justice bennet van syckel. on dec. 20th last, following a brief illness of bronchial pneumonia, supreme court justice bennet van syckel, almost ninety-two years old, the oldest alumnus of princeton university, died at his home in trenton. judge van syckel was the son of aaron van syckel, and mary van syckel, of bethlehem, hunterdon county, and was born there april 17, 1830. his father and his grandfather were country merchants, whose ancestors came with the old dutch settlers to that part of new jersey. his father was considered wealthy in those days and was able to give his four sons an excellent education. when bennet was nine years old he was sent to a boarding school at easton. at the age of thirteen he completed his preparatory studies and entered princeton in the sophomore class. three years later he was graduated with high honors and for one year was resident graduate assistant professor to joseph henry, who occupied the chair of natural philosophy. bennet next took up the study of law in the office of alexander wurts of flemington, and was prepared to take his law examination some time before he was of age, but as he could not be admitted to the bar while under twenty-one was forced to wait. on the twenty-first anniversary of his birthday, at the april term of the supreme court, 1851, he was admitted to the bar, and became counselor at the june term, 1854. he at once opened office in flemington, and practiced there with unusual success until february, 1858, when governor randolph appointed him justice of the supreme court. at that time he was the youngest member of the court. his circuits were in the counties of salem, cumberland, atlantic and cape may. when the number of supreme court justices was increased from seven to nine and the districts were readjusted, justice van syckel was assigned to union and ocean counties, where he presided twenty-nine years. he was five times reappointed. only a few months after his last appointment in 1904 he resigned because of ill health and increasing age. after his retirement justice van syckel was made the guest of the new jersey bench and bar, at trenton, upon which occasion a portrait of him painted in oil was presented to the state, to be hung on the wall of the supreme court room at the capitol. a few months later another portrait was hung in the new court house in union county, in honor of the justice who had presided there for so many years. during his term of service justice van syckel delivered some of the most important opinions of the supreme court and of the court of errors and appeals. in the prosecution of the linden and elizabeth race track gamblers in 1893 he proved a terror to poolsellers, bookmakers and evildoers. it was justice van syckel who wrote the opinion of the supreme court when an effort was made to challenge the majority cast in favor of the anti-gambling amendment to the state constitution, and his opinion upholding the adoption of the amendments was sustained by the court of errors and appeals. at the time of his death a membership in the directorate of the prudential life insurance company was the former justice's sole business affiliation. his activity in connection with this post caused his associates to marvel. he attended all the meetings and was as alert as the youngest of his colleagues. at the princeton alumni reunion in june, 1920, he led the parade around the baseball field and got a big ovation from the throng in attendance. in his automobile he arose repeatedly and raised his hat in acknowledgment of the applause. in 1911, woodrow wilson, when governor, appointed him and former state attorney general edmund wilson, of red bank, as a commission to study the proposed abandonment of the morris canal. the report was adverse to the state taking over the canal. the justice aided in the drafting of the "seven sisters" acts, passed during the wilson administration, which were designed to curb the activities of the trusts in new jersey. justice van syckel was a lover of outdoor sports. in his younger days he played town ball and football and later was a great admirer of baseball. he rode horseback, played golf and was a fine wing shot. in politics he was a democrat, but politics had no place with him while he sat on the bench. mr. van syckel married miss mary elizabeth sloane, daughter of mr. and mrs. william hand sloane. he is survived by two sons, charles s. and william s., and a daughter, bessie. judge william r. francis. former new jersey state senator and former supreme court judge of dakota, william r. francis, died in the city hospital in newark, this state, on dec. 15th last, aged 82 years. his death was the result of a fall in the bedroom of his home, 324 s. orange ave., newark. judge francis was born in connecticut. he was a graduate from oberlin college and then came to newark, where he became a member of the law firm of titsworth, francis & marsh. he served as city counsel of newark from 1871 to 1875 and in the state senate from 1879 to 1881. in 1882 mr. francis went to dakota. at that time the two dakotas were united in a territory of the united states. after completing his term as supreme court judge there he became attorney for the northern pacific railroad. about twenty years ago he returned to newark. mr. francis was a master in chancery and had offices with scharringhausen & hartpence, 800 broad street. mr. francis is survived by a widow, who was miss annie yeomans of newark. he is also survived by a niece, mrs. c. l. bryant of danbury, conn., and a cousin, miss mary francis, of newark. transcriber notes: passages in italics were indicated by _underscores_. small caps were replaced with all caps. throughout the dialogues, there were words used to mimic accents of the speakers. those words were retained as-is. errors in punctuations and inconsistent hyphenation were not corrected unless otherwise noted. on page 9, "migh" was replaced with "might". on page 22, the term "plaintiff's term" was obscured by a google logo. on page 23, "provsion" was replaced with "provision". on page 27, the phrase "committed by the wife with the en-" was moved to the top of the page, since it seemed to be put in the wrong line initially. on page 28, the question mark after "b thereafter refused to make the assignment" was replaced by a period on page 32, "prinecton" was replaced with "princeton". images of public domain material from the google books project.) the new jersey law journal published monthly volume xlv march, 1922 no. 3 editorial notes. happily it is not such a frequent occurrence as may be supposed that the judges of our court of errors and appeals split apart so curiously as they did in determining that the van ness enforcement act should be declared unconstitutional. the result only shows that, like the doctors, judges cannot all think alike. on the subject of whether whiskey is useful as a medicine or not our new jersey doctors, on a canvass, split, 520 to 308, or 490 to 319, according as one interprets the replies. in the nation at large it ran 51 per cent. to 49 per cent., a closer margin. but only half of those who were interrogated by the "journal of the american medical association" responded; what the rest thought we do not know. so on the legal questions involved in the van ness act, counting those judges who approved the act as constitutional in the supreme court, the difference between a yea and nay vote appears to have been only one. on the subject of whether the act could be sustained because it took away from defendants the right of trial by jury, which was the great burden in objections made by defendants themselves, the court held what this journal has held, that the legislature had the power to direct that trials might be by magistrates without a jury. it had done so over and over again in other matters and could do so in liquor legislation as well. on other points there were various differences of opinion. however, since the act as a whole is declared unconstitutional, on the ground that it does not conform to the federal act, which declares that the illegal possession, sale, etc., of liquors constitute a crime, instead of disorderliness, the legislature has passed new statutes which alter the basis of a conviction from a disorderly proceeding to a criminal proceeding. there is no hope in this for bootleggers, except as it permits them to escape by jury disagreements or "not guilty" verdicts. if no law were enacted the federal courts would be filled with cases, and the results there would give no hope to criminals. generally speaking, the upsetting of the van ness act is unfortunate, because jury trials are expensive as well as uncertain; trials before judges as magistrates are more certain and far less expensive. in the end, however, bootleggers will not win in the game. * * * * * on the question of the legality of "picketing" by strikes the court of errors and appeals of this state also held quite divergent views, but sustained the keuffel & esser injunction granted by vice-chancellor buchanan against the international association of machinists. the majority decision of the court was rendered on jan. 26th, in an opinion by mr. justice swayze. his finding was sustained by 9 affirmative and 5 negative votes. besides justice swayze, the members of the court voting to affirm were justices parker, bergen, kalisch and katzenbach, and judges white, williams, gardner and ackerson. voting to reverse were chief justice gummere, justices trenchard, minturn and black and judge van buskirk. "the object of the appeal avowedly is," said justice swayze, "to secure a decision as to the legality of picketing when unaccompanied with violence, molestation of others, annoying language or conduct--in short, what is sometimes called peaceful picketing. parading in the neighborhood of complainants with placards indicating that a strike is in progress is similar in its legal character to picketing." he then pointed out that the court is bound in a measure by the recent decision of the supreme court of the united states in the case of the american steel foundries v. the tri-city central trades council, in which chief justice taft wrote an opinion upon the rights of strikers, both at common law and as governed by the clayton act. taking the federal decision as a foundation, justice swayze said it held the employer had the right to the access of his employés to his place of business and of egress therefrom, without intimidation or obstruction; and the employés, recent or expectant, had the right to use peaceable and lawful means to induce present employés and would-be employés to join their ranks. he remarked that the legality of any particular conduct depends on the facts of the particular case and that picketing may or may not be lawful, as it has or has not an immediate tendency to intimidate the other party to the controversy. remarking that picketing is illegal if it has an immediate tendency to obstruct free passage such as the streets afford, consistent with the rights of others to enjoy the same privilege, justice swayze continued: "thus men may accost one another with a view of influencing action, but may not resort to persistence, importunity, following and dogging. the number of pickets may of itself make the picketing unlawful, since it may amount to intimidation. everyone knows that threats of bodily harm may be made by a mere show of force, without violence of language or breach of the peace, and that mere numbers may intimidate. the real question is, 'does the conduct under existing facts amount to intimidation?' twenty-five or fifty pickets may, when a single picket probably would not. if information alone were wanted in the pending case, all the information necessary for the defendants to enable them to prosecute their efforts to convert the complainants employés would have been obtained by a few men. the use of twenty-five or fifty or two hundred, as in fact used, was clearly unnecessary, and could not have been intended for any lawful purpose. in view of the testimony as to what actually went on, the vice-chancellor properly held that the conduct of the defendants was an illegal interference with the complainants' property rights." * * * * * the opinion noted above is, in the whole, a lengthy one. judge white concurred in it in a separate opinion. justice minturn filed a strong dissenting view, taking the ground that the court's conclusion served to mark another step in the cycle of judicial legislation, which, beginning with an appropriate effort to curb agitation of a forcible character, has concluded with an edict which will be construed to put an end to peaceable and constitutional economic agitation. "nothing further," he said, "would seem to be necessary to complete the chaplet of judicial legislation, unless it be the invocation of the provisions of the statute of laborers (edward iii.), under the provisions of which the laborer was effectually conscripted to the service of the master, and to that end was hounded as a helot, and labeled with the brand of cain. in every other walk of life the peaceful activities condemned by these adjudications are quiescently tolerated, if not approving recognized." * * * * * the cash bonus asked--not asked but demanded in formal resolutions--by various of the associations of the american legion throughout the country, and which has given the present congress and the president more concern than almost any domestic subject, has not struck a responsive chord in the popular ear except from the soldiers--a minority of them, as we believe--who want it. every business man knows it is not the time to pension well soldiers of the late war further than the states are doing it. we have always doubted that the best officers and soldiers of the country were behind the movement. it is to belittle their patriotism to believe that they desire to foist billions of taxes, direct or indirect, upon their country at the present moment. * * * * * when senator edge told an assembly at atlantic city recently that the senate of the united states, of which he is a member, failed alarmingly in performing its proper duties in a speedy and efficient manner, he only stated what public opinion has long held. the mere fact, to which he did not allude however, that a few men can talk any good project before that body to death, the senate rules permitting unlimited debate, has served again and again to prove the truth of his statements. the house of representatives, with its too-many members, is far more reflective of public sentiment than the senate, and actually does its work more expeditiously when a majority of members desire quick action. a reform in the senate is of such importance that too much public attention to its improper methods of carrying on public business cannot be given. the press of the country should be a unit in demanding a change in methods and results. the new york "times" thinks the trouble is largely due to the fact that there is a dearth of strong men in the senate; that there is no great inducement for a strong man to go to the senate as a new member, because he is practically "frozen out" of any good committee assignment for a long period of time. it says of a new member: "what will happen to him when he takes his seat in the senate? he will get only insignificant committee appointments. he will be expected to be silent for at least six months. if he undertakes, as a new senator, to impress upon the senate any positive convictions of his own, he will be 'hazed' like a college freshman in the effort to teach him his place. if there is in the senate a 'career open to talent,' it is open only after long waiting. in short, the senate that now professes an anxiety for the accession of strong men itself puts formidable obstacles in the way of a strong man. its rules, as senator wadsworth has just been lamenting, make it almost impossible to transact business. its time is mostly taken up by querulous and ineffective members. its committees are manned by the rule of seniority, which too often spells senility. indeed, about the only way in which the senate as it is at present can be said to be a nursery of political strength is in accordance with the maxim, suffer and be strong. a senator who can survive for a few years the suffering, mental and moral, which he has to undergo in the senate, may emerge into power and influence. but upon the strong man just arrived the senate always puts a damper." lots of truth in this. nevertheless, present senate rules combined with too much politics and too little statesmanship and business activity are responsible for a deterioration of the public esteem for our highest governing body. * * * * * dean stone of the columbia university law school of new york city in a report to the president of that institution made recently sounds a proper warning as to the quality and numbers of young men crowding into the bars of many of the states. among other things he said: "it may well be doubted whether there is any profession which makes greater demands than the law on the capacity of its members for sustained intellectual efforts, their powers of discrimination and their ability to master detail. yet, as i have often had occasion to point out in these reports, increasing numbers of men of mediocre ability and inadequate preliminary education are being attracted to the law by the ever-increasing facilities for law study. what, under the conditions of law study and admission to the bar of a generation ago, was a task of magnitude testing the patience, stability, character and intellectual power of the prospective lawyer to the utmost may now be performed with relative ease. this is partly attributable to the multiplication of opportunities for law and study nicely adapted to the peculiar type of bar examination prevailing in most of our states, and partly because law schools and bar examinations too often place the interests of the individual law student and sometimes their own interests ahead of the interests of the profession. it is the duty of law schools to dissuade the man of ordinary ability and meagre education from beginning law study, and, if he will not be dissuaded, to apply to him standards of proficiency and attainment worthy of the profession to whose membership he aspires." * * * * * the washington conference is over and the results are more than gratifying. only the blindest obtuseness on the part of the united states senate has prevented early ratification of the various treaties made by it. the great point gained by this conference is that it brought great britain, france, japan, china and five other powers face to face in friendliest attitude, and this is what should happen again when occasion calls for it. every country represented is happy over the result, and to say that america should be is a truism. it marked another great event in world history. * * * * * some day perhaps, every moving-picture theatre will have this description of the art it employs on its front curtain, for is it not the lucid description recently published in a magazine devoted to the "sublime art" of motion-picture writing? and it will be good for school boys and girls to interpret: "the photodramatist enters the great cosmic drama in keeping with the infinite plan; he will be, in the expanse of days to come, a master of new values in art, science, philosophy, religion. from the fastnesses of the invisible world of thought, fulgurous forces of the very essence of beauty are sweeping into his consciousness, attracted by the human desire for more complete expression." some reminiscences, mostly legal. by hon. frederic adams, los angeles, california. v. some new jersey courts and lawyers. in the early autumn of 1862, nearly sixty years ago, i became a law student in the office of amzi dodd, in newark. mr. dodd was then at the best of his mental and physical strength. in his office i came to know, admire and revere him, and there was begun a cordial friendship between us which continued unbroken until he passed away in extreme old age. i think that there was not in new jersey a sounder legal head than his, nor a better balanced and more sagacious legal judgment. nor was this all. he was profoundly ethical, not obtrusively but sensitively. there was a voice within to which he always listened, and he rested firmly on the fundamental morals which are part of the religion of every good man and underlie the law itself. nor was this all, for to the innermost recesses of his nature he was devoutly, rationally and serenely christian. mr. dodd was a princeton graduate and a contemporary of three remarkable rutgers men, cortlandt parker, frederick t. frelinghuysen and joseph p. bradley, any one of whom would have conferred distinction on any bar in the country. mr. dodd, though a good and persuasive speaker, had not the oratorical charm of mr. frelinghuysen, nor the forensic power of mr. parker. he and mr. bradley had a good deal in common. both were scholarly, excellent mathematicians, and had the judicial stamp. in my first year with mr. dodd i had an interesting experience. his cousin, chief justice edward w. whelpley, came to newark to hold the essex circuit, pursuant, i suppose, to some arrangement with judge daniel haines. he was in the office almost every day, and i lost no opportunity to attend court and hear him try cases. he was an impressive figure, a big man with a heavy voice and a commanding manner. i have sometimes wondered since whether he was really as powerful a judge as he then seemed to me to be, or whether perhaps his dominating personality threw a kind of spell over me. i remember that his charge would often efface the impressions made by the arguments of counsel. he seemed to be in exuberant health and spirits, and to have before him the prospect of many years of usefulness and distinction. he died on february 22, 1864, and was succeeded by mercer beasley, who held office for thirty-three years, and wrote his name high on the scroll of new jersey worthies. i wonder how many of the essex bar now remember seeing chief justice whelpley at the essex circuit. he held the union circuit also, and, i have heard, used to get his dinner in new york on the ground that there was nothing fit to eat in union county. he was probably unfortunate in his choice of a restaurant, or perhaps his requirements were unusual, for he is said to have spoken unfavorably of our national bird, the turkey, because a turkey is "too much for one and not enough for two." judge haines left the bench at the expiration of his term on november 15, 1866, and was succeeded by david a. depue, who held office as judge and chief justice and was a strong pillar of society, until november 16, 1901. a persian proverb says that a stone fit for the wall is never left in the road, and so, as it was according to the evident fitness of things that mr. dodd should become a judge, that event came to pass when chancellor zabriskie, in 1871, appointed him the first vice-chancellor. in 1875 he resigned his office, and in 1881 was reappointed by chancellor runyon. he became also a specially appointed judge of the court of errors and appeals, thus strengthening its equity side. in a court many of whose most important issues are in equity, and one of whose members is the chancellor, who is precluded from sitting in equity cases, it is always well that some of the judges should have, or have had, the valuable experience of sitting alone in equity, and dealing at first hand with the rules of equity practice and procedure. this has been the case with justice bergen and mr. dodd. no other instances occur to me. the highwater mark of vice chancellor dodd's judicial duty was reached in the memorable case of pennsylvania r. r. co. v. national railway co., 23 equity 441, decided at the february term, 1873. this was before the general railroad law, and there was a strong movement, backed by much public opinion, and attended by some public excitement and high feeling, to break the monopoly of the pennsylvania railroad company by uniting interests and connecting existing roads, so as to secure an independent through line between new york and philadelphia. the purpose was meritorious, for the state needed another through line. the case which vice-chancellor dodd decided was in form an application to enjoin the national railway company from proceeding with the construction of its road in new jersey with intent to use it as part of a through line from new york to philadelphia. the argument which, with the reading of proofs, took two weeks, was upon a rule to show cause why an injunction should not issue pursuant to the prayer of the bill. attorney-general stockton, mr. theodore cuyler and others were counsel for the complainant, and mr. cortlandt parker and others represented the defendants. i went to trenton to hear the opinion. the reading of it took about an hour. the gist of the opinion, which was for the complainant, was this,--not that several links might not form a chain, but that the defendants' so-called links formed no chain because the legislative acts which created them indicated no intent that they should connect. the opinion shows vice-chancellor dodd's strong judicial qualities; admirable language and style, clear statement, controversial force, persuasive reasoning and exposition, all, in their combination, leading up to a high level of jurisprudence. i know of nothing in the new jersey books more skillful or nobly ethical than portions of this opinion. vice-chancellor dodd would not have esteemed it praise to be told that the case was a test of his nerve, for, though his feelings were easily wounded, he was far above being moved by clamor, either before or after a decision. i will not dwell on vice-chancellor dodd's other opinions. they are numerous and may be consulted in the volumes in which they are printed, beginning with 22nd equity. a strong magnet was drawing vice-chancellor dodd away from the law to a pursuit attractive to one of his mathematical bent: i mean the intellectual side of the science and art of life insurance, and it finally captured him. perhaps some readers of the new jersey law journal have been favored, as i have been, by polite letters from one or more insurance companies, offering options between two or three propositions about equally unintelligible, and have, perhaps improvidently, solved the problem by selecting the one which seemed to promise most immediate cash. to such persons, if any there be, i respectfully commend the perusal of a valued and interesting book of about four hundred pages which lies before me, entitled "reports to the board of directors of the mutual benefit life insurance company, made by amzi dodd as mathematician or president, from october, 1877, to january 21, 1901." i can say like hamlet, "i am ill at these numbers," if i may be pardoned for perverting the meaning of the prince of denmark, but i have sufficient comprehension to see that the same man wrote the opinions and the reports, and that they are characterized by the same high mental and moral qualities. mr. dodd was fond of governor william pennington and liked to talk about him. they became acquainted when they met in a cow case at orange. an old woman's cow was run down and killed by a morris & essex train and young dodd sued the railroad. it had not then been judicially determined in new jersey whether a cow or the locomotive had the superior right of way. the case was tried before a justice of the peace with a jury. dodd was very much on his good behavior and treated the governor with extreme courtesy. he had the crowd with him and triumphantly won the verdict. the next day governor pennington called on him, or sent for him, complimented him on his management of the case, and spoke of his own friendship with amzi dodd, an uncle of young amzi, who was a capable newark lawyer, a careless, unsystematic man of whom i heard mr. cortlandt parker tell that he carried his papers in his hat, and was said sometimes to lose both hat and papers together. one day, amzi dodd, the uncle, came into governor pennington's office and said: "good morning, governor. confound these young fellows! they get all my books away from me. now there is 'elmer's forms.' i own a copy of it, and it has my name in it, but it is gone. it is a very useful book. i need it every day. governor, have you a copy that you can let me have?" governor pennington, who was a courtly gentleman of the old school and something of a wag, answered very gravely: "mr. dodd, i agree with you about 'elmer's forms.' it is an excellent office book. i consult it every day and should be sorry to be without it, but you know, mr. dodd, that i am always ready to oblige you, and i will cheerfully let you have it if you will promise in writing to return it when i need it." "certainly," said mr. dodd, and dashed off a serio-comic agreement to return the book when called for. he folded the document and handed it to the governor, and the governor handed him his own missing book. i told this to my old yale friend, william pennington of paterson, a nephew of the governor, who chuckled and said, "i can see him doing it." governor pennington used often to associate young dodd with him in the trial of causes. he had been governor under the old constitution and _ex-officio_ chancellor, but was not scholarly and relied very much on his knowledge of the world, tact, and strong common sense. mr. dodd once told me that while the governor knew very little law, he was a most dangerous antagonist before a jury. if he had the close he was almost sure to get the jury with him, and if you had the close he would sit in front of the jury and smile your speech away. mr. dodd is my authority for this story: ex-governor daniel haines, the justice of the supreme court who held the essex circuit, was a man of strict views, and mr. cortlandt parker, the prosecutor of the pleas, was discharging his important duties with a force and efficiency worthy of national issues and a wider stage, and so, what with the austerity of the judge and the zeal of the prosecutor, the way of the transgressor was growing hard, and it was getting to be common talk among the rounders and hangers-on at the courthouse that if a man was indicted he might as well plead guilty at once and save the county the expense of a trial. some malefactor, with more money or spirit than the others, paid governor pennington a good fee and instructed him to fight. the governor had been informed of the current gossip, and thought he would see what he could make out of it. so he told the jury in his most impressive manner, that a man is taken to be innocent until he is proved to be guilty; that this is the palladium of our liberties; and that he feared that this precious, fundamental right was not sufficiently borne in mind, even in the courthouse of the county of essex, and that it was too much assumed that conviction ought to follow indictment. at this point judge haines, with a flushed face and his eyes shining brightly through his gold-rimmed spectacles, interrupted the governor, and said that he had heard the remarks of the distinguished counsel with much surprise and regret; that they conveyed an imputation upon the court itself--an intimation that he was derelict in his duty toward an important class of suitors, the defendants in criminal cases, and that he desired to know and now asked counsel to state from what persons he heard these strictures upon the court. governor pennington, with his usual urbanity, bowed and said: "it is mainly from the criminals themselves." this answer occasioned such a sudden revulsion of thought and feeling as to discompose the judge and convulse the bar. it is now just seventy years since mr. dodd went to trenton to hear and see daniel webster and rufus choate in the case of charles goodyear against horace h. day, pending in the circuit court of the united states before judge grier of the supreme court, and a district judge. there is probably now no living member of the bench or bar of new jersey who attended that trial even as a spectator. as to this case i quote briefly from mr. choate's "commemorative discourse" on webster, delivered at dartmouth college on july 27, 1852: "the professional life of mr. webster began in the spring of 1805. it may not be said to have ended until he died; but i do not know that it happened to him to appear in court, for the trial of a cause, after his argument of the goodyear patent for improvements in the preparation of india-rubber, in trenton, in march, 1852. there i saw him and last heard him. the thirty-four years which had elapsed since, a member of this college, at home for health, i first saw and heard him in the supreme court of massachusetts, in the county of essex, defending jackman, accused of the robbery of goodrich, had in almost all things changed him. the raven hair, the vigorous, full frame and firm tread, the eminent but severe beauty of the countenance, not yet sealed with the middle age of man, the exuberant demonstration of all sorts of power, which so marked him at first--for these, as once they were, i explored in vain. yet how far higher was the interest that attended him now: his sixty-nine years robed, as it were, with honor and with love, with associations of great service done to the state, and of great fame gathered and safe; and then the perfect mastery of the cause in its legal and scientific principles, and in all its facts; the admirable clearness and order in which his propositions were advanced successively; the power, the occasional high ethical tone, the appropriate eloquence, by which they were made probable and persuasive to the judicial reason--these announced the leader of the american bar, with every faculty and every accomplishment, by which he had won that proud title, wholly unimpaired; the eye not dim nor the natural force abated." mr. webster represented goodyear, mr. choate represented day. the injunction which goodyear applied for was granted. day surrendered his license, transferred his factory and machinery to a representative of goodyear, and agreed to retire from the business for the sum of $350,000, and counsel fees amounting to $21,000 additional, which amounts were paid. mr. webster's retainer was $15,000. mr. dodd liked to talk about this case. mr. webster and mr. choate each spoke for two days, or parts of two days. chancellor green is said to have called mr. choate's argument the finest that he ever heard in court. lawyers came from all over the state to attend the trial. mr. dodd said that at times mr. choate would seem "to go up like a balloon." one who has heard or even read choate knows how at times he would seem to lift himself and his audience on the rushing wings of his magical oratory. one of the junior counsel for day had made some impression by dwelling on the hardships of operatives if the injunction should be granted. the day was getting late and judge grier suggested to mr. webster, who was to speak next, that the court adjourn until the next day. mr. webster assented, but said: "there is one thing that i wish to say now. if mr. day's operatives are likely to be distressed, it will be because of his own default, of his own breach of faith, of his own repudiation of his own solemn contract, under his own hand and seal," and, as he said it, his voice deepened and his eyes flashed, and the courtroom rang as with a peal of mellow thunder. mr. dodd came out of court with ex-chancellor halsted who said: "well, amzi, the old lion has given his first growl." the case is reported in 10 federal cases, page 638, case no. 5569. in a footnote is this extract from mr. webster's argument. it is interesting, for it shows him at his very best and is not generally known. his biographer, mr. g. t. curtis, speaks of this argument as one of the most remarkable and interesting of his forensic efforts. "i believe," said mr. webster, "that the man who sits at this table, charles goodyear, is to go down to posterity in the history of the arts in this country, in that great class of inventors at the head of which stands robert fulton, in which class stand the names of whitney and of morse, and in which class will stand '_non post long intervallo_' the humble name of charles goodyear. notwithstanding all the difficulties he encountered he went on. if there was reproach he bore it. if poverty, he suffered under it; but he went on, and these people followed him from step to step, from 1834 to 1839, or until a later period when his invention was completed, and then they opened their eyes with astonishment. they then saw that what they had been treating with ridicule was sublime; that what they had made the subject of reproach was the exercise of great inventive genius; that what they had laughed at was the perseverance of a man of talent with great perceptive faculties, which had brought out a wonder as much to their astonishment as if another sun had arisen in the hemisphere above. he says of his cell in the debtors' jail that 'it is as good a lodging as he may expect this side the grave'; he hopes his friends will come and see him on the subject of india rubber manufacture; and then he speaks of his family and of his wife. he had but two objects, his family and his discovery. in all his distress and in all his trials his wife was willing to participate in his sufferings, and endure everything, and hope everything; she was willing to be poor; she was willing to go to prison, if it was necessary, when he went to prison; she was willing to share with him everything; and that was his solace. may it please your honors, there is nothing upon the earth that can compare with the faithful attachment of a wife; no creature who, for the object of her love, is so indomitable, so persevering, so ready to suffer and to die. under the most depressing circumstances woman's weakness becomes mighty power; her timidity becomes fearless courage; all her shrinking and sinking passes away, and her spirit acquires the firmness of marble--adamantine firmness, when circumstances drive her to put forth all her energies under the inspiration of her affections. mr. goodyear survived all this, and i am sure he would go through the same suffering ten times again for the same consolation. he carried on his experiments perseveringly, and with success, and obtained a patent in 1844 for his great invention." there is a spirited report of the same case in 2 wallace jr., where, at pages 294 and 295, are some turns of thought and expression very characteristic of mr. webster. a few months later, on october 24, 1852, daniel webster died at marshfield. years after the trenton trial mr. dodd was in boston, and was inclined to call on mr. choate, at his office, but at the very door his diffidence made him withdraw. he should have gone on. an opportunity was lost. it was said of mr. choate that he treated every man with the courtesy due to a woman, and every woman as though she were a queen. he bore interruptions cheerfully, almost gladly. mr. choate would have been found working at a standing desk covered with his hieroglyphic notes, undecipherable except by himself; he would have cordially owned his visitor's fraternal claim to his attention; and he would have kindled to the depths of his nature at the memory of his last encounter with his mighty friend. * * * * * that the sale of whisky is prohibited by law is held in ellis v. com. 186 ky. 494, 217 s. w. 368, not to deprive it of its character as goods, wares, and merchandise, and a thing of value, within the meaning of a statute providing for punishment of one breaking into a storehouse and taking therefrom goods, wares, and merchandise or other thing of value. in re b. & b. motor sales corporation. (u. s. dist. court, dist. of new jersey, jan. 18, 1922). _bankruptcy--sale of auto truck--conditional agreement and its transfer--right to possession of property--uniform conditional sales act_. in the matter of b. & b. motor sales corporation, bankrupt. on exceptions to master's report denying the first people's trust petition for certain property held by the receiver. mr. harry green for exceptants, the first people's trust. mr. barney larkey for the receiver. rellstab, district judge: the first people's trust excepts to the master's findings that it is not entitled to apex truck no. 5365, found in the possession of the b. & b. motor sales corporation (hereinafter called the bankrupt,) at the time the receiver took charge of the bankrupt's estate. the facts are: the bankrupt carried on the business of buying and selling auto trucks. on july 12, 1920, it agreed in writing with robert jones to sell him the truck in question for $1,955, payable in monthly installments. in this writing (called a "conditional sale agreement"), signed by both parties, it was declared, inter alia, that the bankrupt had that day delivered the truck to the buyer; that the title to the truck was not to pass to the buyer, but was to "remain vested in and be the property of the seller or assigns until the purchase price has been fully paid;" that if jones failed to pay any of the installments when due the bankrupt might without demand, notice, or process, take possession of the truck, whereupon jones' right therein should terminate absolutely, and all payments made thereon be restrained by the bankrupt as liquidated damages and rent. at the same time, jones executed two notes to the bankrupt, one for the sum of $1,427.15 (in the conditional sale agreement recited to be the balance to be paid on the truck), payable in twelve monthly installments, wherein it was declared that "upon default in the payment of any installment when due, the whole amount remaining unpaid shall immediately become due;" the other note represented the remainder (or some part of it) of the purchase price. both the conditional sale agreement and the $1,427.15 note subsequently were transferred by the bankrupt to the first people's trust. the transfer of the agreement is dated july 12, 1920, and recites that it is simultaneous with the purchase of the note; in terms it sells, assigns and transfers the bankrupt's right, title and interest in the automobile in question and also in the conditional sale agreement, and asserts that the automobile was sold and not consigned to the buyer. the transfer of the note bears no date, is in the form of an endorsement, guarantees payment of the note, principal and interest, waives demand and protest, and is signed by the bankrupt by its president and secretary, and by the same persons individually. jones had possession of the truck for several months, and, after making some of the stipulated payments, defaulted in further payments on both notes. the bankrupt repossessed itself of the truck, and was in possession thereof at the time the receiver took charge. neither the conditional sale agreement nor the assignment was recorded. no rights or interests of any purchaser or creditor of jones, the buyer, are involved in these proceedings, the controversy being exclusively between the assignee of the conditional sale agreement and the creditors of the bankrupt (seller). the master held that the assignment of the conditional sale agreement "was to act as a mortgage for the payment of the notes;" and that, as neither the conditional sale agreement nor the assignment had "been recorded in accordance with the laws of the state of new jersey and ... the b. & b. motor sales corporation had repossessed the truck and had it in its possession at the time of the appointment of the receiver," the receiver, and not the first people's trust, was entitled to it. first, as to the conditional sale agreement. the new jersey uniform conditional sales act, approved april 15, 1919, effective from july 4, 1919 (n. j. p. l., p. 461), in section 1, defines a seller as "the person who sells or leases the goods covered by the conditional sale, or any legal successor in interest of such person." in section 4 it declares that: "every provision in a conditional sale reserving property in the seller after possession of the goods is delivered to the buyer, shall be valid as to all persons, except as hereinafter otherwise provided." the exceptions here referred to are contained in section 5, which declares that: "every provision in a conditional sale reserving property in the seller shall be void as to any purchaser from or creditor of the buyer, who, without notice of such provision, purchases the goods or acquires by attachment or levy a lien upon them, before the contract or a copy thereof shall be filed as hereinafter provided, unless such contract or copy is so filed within ten days after the making of the conditional sale." from this recital it will be seen that as no purchaser from or creditor of jones is questioning the validity of such reservation, as between the bankrupt and jones, the reservation to the bankrupt of title and property in the truck, was valid, notwithstanding the failure to record the agreement. second, as to the assignment of the conditional sale agreement: the new jersey chattel mortgage act (revision of 1892; 1 comp. stat. n. j., p. 463) in section 4, declares: "every mortgage or conveyance intended to operate as a mortgage of goods and chattels hereafter made, which shall not be accompanied by an immediate delivery, and followed by an actual and continued change of possession of things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, having annexed thereto an affidavit or affirmation made and subscribed by the holder of said mortgage, his agent, or attorney, stating the consideration of said mortgage and as nearly as possible the amount due and to grow due thereon, be recorded as directed in the succeeding section of this act." to constitute a mortgage the right of redemption must exist, and where such right is established the form of the conveyance is not controlling. wilmerding, heguet & co. v. mitchell, 42 n. j. l. (12 vr.) 476; hastings v. fithian (e. & a.), 71 n. j. l. (42 vr.) 311. an assignment of a chose in action, even if it be a security for the payment of a debt, is not a chattel mortgage within the meaning of the new jersey chattel mortgage act. bleakley v. nelson, 56 n. j. e. (11 dick. ch.) 674. this act applies only "when the goods mortgaged are capable of such open and visible possession that their holding by a mortgagor, who had given a secret mortgage, might tempt someone to deal with him as the absolute owner." cumberland national bank v. baker, 57 n. j. e. (12 dick. ch.) 231, 242. the assignment now under consideration was not given as a security. it was an absolute transfer of the seller's property and interest in the conditional sale agreement and the automobile mentioned therein, without right of redemption. by this assignment the people's trust became the "legal successor in interest" referred to in section one of the uniform conditional sales act, supra; and the reservation of property contained in the conditional sale agreement was transferred to it by the assignment. the assigned agreement recited that the automobile had been delivered to the buyer, and the assignment expressly recited that it had been sold to jones (the buyer); and the assignor at the time of the assignment was not in a position to retain the automobile, or to deliver it to the assignee. what the assignor could deliver to the people's trust was the conditional sale agreement, and that was done. had the transfer been to secure a debt, the delivery of the conditional sale agreement would savor more of a pledge than a chattel mortgage, but, as the assignment was absolute and not conditional, it was neither. such a transaction is not contemplated by the chattel mortgage act, which covers transactions where the title, but not possession, is transferred; but by the uniform conditional sales act, supra, which operates upon transactions where the possession, but not the title, is transferred. the right of the people's trust to the automobile is fixed by the assigned conditional sale agreement, and is superior to the rights of the bankrupt or its creditors--here represented by the receiver. as opposed to this view, and in support of the master's finding, the case of david straus co. v. commercial delivery co. (n. j. ct. ch.), 113 atl. 604, affirmed by the court of errors and appeals, 112 atl. 417, is cited by the receiver. that case, made up of facts which existed before the uniform conditional sales act went into effect, presents many features similar to the instant case. however, the differences, and not the similarities, are controlling. the pertinent facts were: coincident with the agreement (called a lease) relating to the delivery and use of the automobile truck, the lessee (driver) entered into a service contract with the lessor (commercial delivery company). in that contract the driver agreed to work the truck under the direction of the lessor for two years, and in no other way than as directed by it, and to deliver to the lessor the entire gross monthly earnings. the contract also provided that out of these moneys the latter was to retain a certain percentage for its services, pay the wages of the drivers, storage charges, repairs, etc., and credit the balance to the driver; and that the truck should at all times be stored in a garage furnished by the lessor. the lessor assigned to the morris plan company all its right, title and interest in the lease and the property therein described, and agreed, "in the event of any resale, release, or repossession of said property," to pay to the assignee any deficiency between the net proceeds of such resale and the amount necessary to pay the unpaid installments. at the time of this assignment the assignee took a note made jointly by the assignor and the driver for the sum advanced by the assignee as consideration for the assignment. subsequently an equity receiver in insolvency proceedings was appointed for the lessor, and the receiver found it in possession of the truck. the morris plan company petitioned that the truck be delivered to it as the legal owner thereof. the vice-chancellor held that the assignor was a debtor of the assignee; that the assignment was not an absolute sale of the truck, but collateral security for the payment of the debt; that while the lease apparently gave the right of possession to the driver (lessee), the actual possession, by reason of the service contract, was always in the lessor; that the assignment of the lease was in legal effect a chattel mortgage; and that not having been recorded it was void as against the receiver and creditors of the assignor. as already stated this finding was affirmed by the court of errors and appeals. in the cited case, as noted, it was held that the possession, as well as the title, of the truck was in the lessor at the time of the assignment of the lease or sale agreement; and that the assignment was not an absolute sale of the agreement, but a security for the payment of the advances made by the assignee for which payment the assignor was jointly liable with the driver. in the instant case, the actual, as well as the right of possession of the truck, was not in the bankrupt, but in a third person--the buyer--and the assignment was an absolute transfer of the bankrupt's property in the conditional sale agreement, without right of redemption. these differences are essential, and distinguish the cases. the fact that the truck was taken from the buyer by the bankrupt subsequent to the latter's assignment of the conditional sale agreement, gave it not property or right in the truck as against its assignee, the first people's trust. whatever rights such possession gave it as against the buyer, they were subordinate to the assignee's right of possession on the buyer's default in the terms of the conditional sale agreement then held by the assignee. such default having taken place, the assignee is entitled to the possession of the truck. the master's findings are disapproved, and an order will be made giving the first people's trust the possession of the truck in question. osborne & marsellis co. v. essex co. (essex co. circuit court, feb. 3, 1922). _compensation for road labor performed under county contract--ultra vires resolution_. case of the osborne & marsellis company against county of essex. messrs. edwin b. and philip goodell for plaintiff. mr. arthur t. vanderbilt for defendant. dungan, j.: this is a suit brought by osborne & marsellis company against the county of essex to recover compensation for labor performed and materials furnished in the improvement of a part of franklin avenue, a county road in the county of essex, prior to the allowance of a writ of certiorari to review the legality of the contract under which the work was done, which contract was set aside by the supreme court, and the decision of that court was affirmed by the court of errors and appeals. chamber of commerce v. county of essex, 114 atl. 426. the case is submitted upon a statement of the case and stipulation of facts for judgment, without pleadings; the parties agreeing that the issues be submitted to this court for decision, without trial by jury, and that "no appeal will be taken from the judgment entered on his findings." from the agreed statement of fact it appears that there was no irregularity on the part of osborne & marsellis in the bid, in the awarding of the contract, or in the execution of the contract, which was approved as to form by the county counsel, and a bond was furnished which was also approved, both in accordance with the resolution of the board awarding the contract. it also appears that, after the adoption of the resolution awarding the contract, the plaintiff commenced the work and performed work and furnished materials, the value of which, at the unit prices fixed by the contract, amounted to $18,562.80, all of which labor and materials were performed and furnished prior to the allowance of the writ and prior to notice that application would be made for the writ, "except such work as was necessary to leave the unfinished road in condition as required by law." the grounds upon which the contract was set aside appear fully in the case of chamber of commerce v. county of essex, 114 atl. 426. two defenses to the plaintiff's claim are urged: first, that the contract was not signed by the director of the board of freeholders; and, second, that the resolution constituted an ultra vires act of the board of freeholders and that there can be no recovery upon quantum meruit where the act is ultra vires. 1. the resolution of the board of freeholders relating to the awarding of the contract, which included other contracts, is as follows: "resolved that the contracts ... be and the same are _hereby awarded_;" and that "the director and clerk be and they are hereby authorized and directed to execute contracts with said companies pursuant to this resolution," the only conditions being that a proper bond be furnished and that the contract and bond be approved by the county counsel, and both contract and bond were so approved. the contract, therefore, was awarded by the resolution itself, and the formal document, approved by the county counsel, was actually signed by the clerk and the seal of the county affixed thereto by him, and the failure of the director to sign was a failure to perform a purely ministerial act, the performance of which could have been required by proper legal proceedings. therefore, i hold that the plaintiff is not prevented from recovering on account of the failure of the director to sign the contract. 2. the subject of the contract is one which was entirely within the powers of the board, and hence it cannot be said that the action of the board in awarding the contract to the plaintiff was ultra vires in that respect. after the adoption of the resolution awarding the contract, and after the approval of the plaintiff's bond and the form of the contract by the county counsel, and the affixing thereto of the signature of the clerk and the seal of the county, the plaintiff commenced the work contemplated by the contract. grade stakes were furnished by the county engineer's department, and the work which was performed was under the supervision and direction of an inspector furnished by that department, and the portion of the road upon which the work was done was completed and left ready for use and is now actually in use by the public. this situation, it seems to me, brings this case within the decision of the supreme court in wentink v. freeholders of passaic, 37 vroom, p. 65, in which it appeared that a contract to do the mason work of a bridge was let to wentink, which contract the court subsequently declared void because the firm to whom a contract for the same work had been originally awarded, but which had failed to furnish a bond, had no notice that their bid had been rejected. wentink expended $600 in attempting to secure materials and in the execution of the contract. the court held, that even though the county had derived no benefit from such expenditure, wentink might recover the amount expended. the court said: "there was no lack of power to make the contract with the plaintiff. the fatal defect was in an irregular exercise of such power. it would be too much to hold every contractor for a public body to a scrutiny at his peril of the corporate proceedings. all that he need look to is the power to make the ostensible contract." on the question of damages the court said: "in the case in hand the performance of the contract was not prevented by the fault of the defendant, but by _vis major_. the making of the contract was, however, induced by such fault, and on its annulment the defendant should answer, as on a quantum meruit for the work done thereunder," and that, "as to the measure of the quantum meruit for the work done the contract rate should govern." it is admitted that at the contract rate the work which was performed by the plaintiff would have amounted to $18,562.80. since this case is submitted for judgment without pleadings, and since the statement of the case and the stipulation of facts make no provision for interest, the judgment of the court will be in favor of the plaintiff and against the defendant for that sum. in re elizabeth avenue assessment. (union co. common pleas, jan., 1922). _assessment for repairing street--method employed--method suggested_. in re appeal from assessment for repairing elizabeth avenue from front street to seventh street, elizabeth. mr. alfred s. brown, appellant, in person. mr. joseph t. hague, for city of elizabeth. pierce, j.: this is an appeal from an assessment for repaving with granite blocks that portion of elizabeth avenue, elizabeth, extending from a point about 150 feet east of front street to seventh street. the error complained of is inequality as compared with other assessments. appellant is the owner of a triangular lot of land lying between elizabeth and first avenues, at their intersection at liberty square; the lot is bounded northerly 350 feet on elizabeth avenue, easterly 31 feet on liberty square, southerly about 350 feet on first avenue, and westerly 133 feet on abutting property; the lot is vacant except for an old house at the southwest corner fronting on first avenue. the general method of assessment adopted by the commissioners was as follows: from the whole cost of the improvement, $220,330.56, was deducted $23,127.29, paid by the public service company for repaving its trolley tracks, leaving $197,203.27, of which one-half was assumed by the city and the other half assessed upon abutting property, being at the rate of $8.82 per linear front foot. the commissioners adopted this linear front-foot rate as the bases of the assessment, and imposed it upon all lots one hundred feet deep; short lots were given concessions assumed by the city, viz., 12-1/2 per cent. off where the lot was 50 feet deep, 18-3/4 per cent. off where the lot was 25 feet deep, and in that proportion. the commissioners determined that as to all the lots the assessment was less than the value of the lot, and less than the benefit conferred, but gave no consideration as to the relative value of the lots as between themselves. in assessing appellant's triangular lot the following method was adopted: the lot was divided lengthwise by an imaginary line into two equal parts, one fronting on first avenue and the other on elizabeth avenue. the part on first avenue was not assessed. the part on elizabeth avenue was assessed at the regular rate of $8.82 for its 350 feet frontage, a total $3,087.00, less three concessions: a concession of 12-1/2 per cent. ($110.25) was allowed on the westerly 100 feet averaging fifty odd feet deep; a concession of 20 per cent. ($441.00) was allowed on the remaining 250 feet averaging thirty odd feet deep; and a concession of 25 per cent. ($68.35) was allowed for the 31 feet fronting on liberty square. total concessions, $619.61, leaving $2,467.40 as the assessment levied. in addition to the concessions the commissioners made no assessment against the lot for its frontage on liberty square. the result reached by the commissioners was to assess a lot 350 feet in front on elizabeth avenue, 15-1/2 feet deep at one end and 66-1/2 at the other, nearly four-fifths as much as though the entire frontage had been full lots 100 feet deep. this is unreasonable and i think more than appellant's entire lot should be assessed. i think the commissioners erred in two respects in their method of assessment: 1. it was improper to divide appellant's lot lengthwise for the purpose of assessment. the lot was already too shallow for the greater part of its frontage for ordinary building purposes, and to divide it further was to leave two narrow strips, one fronting on elizabeth avenue and the other on first avenue, neither of any sale value, or practical value for any purpose. it was held by the court of errors and appeals in aldridge v. essex road board (51 n. j. l. 166) that assessors may not divide a lot for the purpose of assessment so that, should a sale result to collect the tax, the property would not bring as much as if sold as part of the original parcel. the rule was followed in coward v. north plainfield (63 n. j. l. 61), where, as in the case at bar, an imaginary line was drawn midway between two avenues. 2. i think the commissioners erred also in disregarding the relative benefit received by lots along the line of the improvement resulting from location and value of the property. the assessment was strictly a front-foot assessment with concessions for short lots, but disregarding the element of location and relative value. the 4th ward assessment roll received in evidence shows substantial variations in the value of properties on elizabeth avenue, and inspection of the line of improvement about a mile in length shows greater traffic and better building and values toward seventh street than opposite and below appellant's lot. the intersection of elizabeth avenue and high street, a few feet west of seventh street, is a business center for that part of the city, and values and traffic are materially greater in that vicinity than below third street. it is manifest that business houses dependent upon traffic for their business are more benefited by a paving improvement than vacant lots at a distance where there is less traffic. it is well settled in new york that the relative value of lots and the buildings upon them must be considered in determining the benefits accruing from a paving improvement (donavan v. oswego, 39 misc. 291, and cases therein cited); and in state v. rahway (39 n. j. l. 646; affirmed by the court of errors and appeals in 11 vr. 615) a greater assessment upon lots nearer a business center was approved in a grading, curbing and guttering improvement. the statute provides that "all assessments ... levied for any local improvement shall in each case be as near as may be in proportion to the peculiar benefit, advantage or increase in value which the respective lots and parcels of land and real estate shall be deemed to receive by reason of the improvement." under the circumstances existing in the case at bar, there being, as i find, a difference in benefit along the line of the improvement resulting from location and value, these elements should have been considered by the commission and such weight given them as in the judgment of the commissioners they should receive. in reassessing appellant's lot i suggest a different ratio of concessions for short lots. the concessions adopted by the commissioners are one-half the concessions allowed by the newark, or hoffman rule, in valuing short lots in regular assessments. as evidenced by the result reached in the assessment appealed from, the concessions are inadequate, and i see no reason why the full concessions established by the newark rule should not be adopted. it is not easy to formulate a rule that will do justice in all cases in assessing irregular shaped lots, but i think a fair result would be reached in the case at bar by deducting from the frontage assessment of $3,087.00 a concession of 25% ($771.00) for the frontage and probable future paving assessment on first avenue; a further concession at the rates given by the newark rule for that portion of the lot under 100 feet in depth (20%--$441.00), less the added value under the same rule for that portion over 100 feet in length (7%--$61.74) net $379.26; total net $1,936.74; less such further concession for less than average benefit received by appellant's lot as in the judgment of the commissioners should be allowed by reason of inferior location, value and improvements. as appellant's lot is not assessed for paving liberty square, no concession should be made for frontage on liberty square. for the reasons given, the assessment appealed from should be set aside as to appellant's lot. * * * * * inexcusable delay in presenting a check for payment is held to discharge an indorser from liability thereon if the check is not paid, whether he is in fact injured or not, in the west virginia case of nuzum v. sheppard, 104 s. e. 587, annotated in 11 a.l.r. 1024. state v. gruich. (essex quarter sessions, dec. 27, 1921). _criminal abortion--new trial--postponing sentence days_. case of the state against anne gruich. on application for new trial. mr. frank bradner for petitioner. mr. john a. bernhard, assistant prosecutor of the pleas, for state of new jersey. stickel, jr., j.: anna gruich was tried before this court, judge harry v. osborne presiding, and, on february 21, 1919, convicted of abortion. the minutes of the court at the foot of the entry of the verdict of the jury contain the words, "sentence postponed." on the 23rd day of may, 1919, the said defendant was convicted by a jury on a second charge of abortion and, on june 5, 1919, sentence of both convictions was imposed by judge osborne, the sentences running concurrently. the conviction on the second charge of abortion having been reversed by the court of errors and appeals at a recent term of that court and a new trial ordered, application is now made to this court to grant a new trial on the charge of abortion of which the defendant was convicted on february 21st, 1919. [here two broad grounds are urged as warranting such action, the first ground involving a question of fact; that part of the opinion is not published. the second ground is that the court, having postponed sentence thereafter to in a new term of the court and without having noted in the minutes continuances of the day of sentence, imposed sentence upon the defendant, the contention being the court then had no jurisdiction to impose any sentence. the opinion continues.--editor]. and i am equally clear that there is no merit in her contention that the court had no jurisdiction to sentence in the april term upon a conviction had in the december term. the theory of the defendant seems to be that, because the minutes do not show that the time for sentence was fixed and then postponed from time to time until the sentence was actually imposed, therefore, no sentence day was, in fact, fixed, no continuance had, and, when the december term expired, the power of the court to fix a sentence day or impose a sentence ended. the sentence file of this court will show that the assumption of counsel is unwarranted, and that a day for sentence was fixed and regular adjournments of that sentence had from time to time until the day upon which sentence was imposed. but, even though we assume that no sentence day was fixed and no continuance in fact taken, the position of counsel in my judgment is unsound. this case is controlled by the principles laid down in the opinion in gehrmann v. osborn, 79 n. j. eq. 430; 82 atl. rep. 424, and by the decision in that case, and even though, as counsel for the defendant suggests, i may not be bound by the decision in that case, the reasoning, the logic and learning thereof is such that i am wholly content to be governed thereby in determining this case, and convinced that the decision in that case represents the law of this state. there, as in this case, sentence was postponed, and, although more than two years elapsed before the defendant was actually sentenced, and, although the original postponement was the practical equivalent of an indefinite postponement of sentence, the court upheld a sentence to state prison. here the sentence was imposed but a few months after conviction, and the postponement was not the equivalent of an indefinite postponement. and, like in the present case, there were no continuances of the sentence recorded in the minutes. "the conclusion which i have, therefore, reached," says vice-chancellor garrison, "in the gehrmann case, is that in the state of new jersey, if a defendant has pleaded nolle contendere, or guilty, or has been convicted upon trial, the court has the power, if the defendant does not object thereto, and therefore is assumed to assent thereto, to refrain from pronouncing a judgment or sentence, and may, at a subsequent time, hale the defendant before it, and impose the punishment in the same manner that it would have been justified in pronouncing upon the very day when the case was ripe for sentence." it will be observed from the opinion that the duty rests upon the defendant to object to an indefinite postponement of sentence; that his failure so to do creates a presumption that he assented thereto, and that his assent or acquiescence to such postponement disenables him to complain when thereafter the court imposes sentence, whether within or without the term in which the conviction is had or plea taken. here not only is there no proof of an objection, but on page 23 of the testimony it appears that the defendant at least acquiesced in the postponement from time to time of the sentence. moreover, just as the research of the learned vice-chancellor convinced him that an indefinite suspension of sentence has been the custom in our state beyond the memory of those then connected with the administration or practice of criminal law in this state, so, from my own experience as a practitioner in and judge of this court do i know that for years it has been the practice to sentence on a given monday after conviction; to sentence periodically all persons convicted or who have pleaded; to enter in the minutes "sentence postponed" in bail cases and prisoners "remanded for sentence" in jail cases and to advise defendant for counsel, or both, in open court of the regular sentence day; for the clerk to make up a sentence list for said day; for the court to use such list in sentencing; for the court to postpone to another day sentences set down upon such sentence day when it so determined, the clerk noting the postponement and placing the case on the new sentence list of the judge, and for the clerk to take the various sentence lists and file them as a part of the records of this court. this practice i find was followed in this case and probably accounts for the repeated attendance of the defendant at the courthouse for sentence. the defendant was convicted on february 21st and the first sentence day of judge osborne thereafter was february 24th, 1919. the defendant's name appears upon this list for sentence and a notation is made that the sentence was postponed to march 10th; the sentence list of march 10th shows a postponement to march 24th; that of march 24th a postponement to april 14th; that of april 14th a postponement to may 5th; that of may 5th a postponement to may 26th; that of may 26th to june 5th, and on june 5th sentence was imposed. if there is any question about this and the case is to be appealed, i would suggest that the prosecutor submit as part of the record on this rule evidence of the practice of this court in sentencing, together with the sentence lists of judge osborne covering the period in question. the rule obtained in this case is discharged and the application of the defendant for a new trial denied. in re will of marion. (essex co. orphans' court, jan. 12, 1922). _probate of will--signing will "for sake of peace"--burden of undue influence--facts considered_. in the matter of the probate of a certain paper writing purporting to be the last will and testament of elizabeth marion, deceased. on caveat. mr. edwin b. goodell and mr. philip goodell for proponent. mr. paul m. fischer for caveator. stickel, jr., j: i was satisfied at the conclusion of the hearings in this matter that the paper writing purporting to be the will of the decedent had been properly executed, and i was also satisfied that she was capable of making a will; in other words, that she had testamentary capacity; but i had some doubt whether the decedent had not consented to the making of the document in question and signed the same for the sake of peace. being thus in doubt i asked counsel to submit briefs on that point alone, and counsel for the proponent have submitted a brief. counsel for the caveator has not submitted a brief, and, as i understand it, does not intend to submit one. the decedent was a woman between fifty and sixty years old. she had several children, two or three sons and two daughters, as i recall it, and one of the daughters, mrs. appleton, resided, together with her three children, with the decedent, and had done so for sometime prior to the execution of the document in question. the decedent and her husband had lived apart for some years, and the whereabouts of the husband of mrs. appleton were unknown, so that both the decedent and the daughter daily went out to work. the decedent had never made a will. she was not on unfriendly relations with her children, although there is some suggestion that she disagreed with all of them at different times. so far as the testimony shows, she had not indicated definitely to anyone at any time prior to the making of the document in question what she intended to do with her estate. she executed the papers purporting to be her will between five and six o'clock, p. m., on the 21st day of december, 1920. she died about one a. m., the succeeding day. she received the last rites at eleven o'clock in the morning of the day she made the will. at three o'clock in the afternoon, two or three hours before she made her will, she inquired of her daughter where certain insurance papers were, and, being told that they were in possession of the daughter and that the insurance had been paid, she seemed relieved and said she did not want any trouble over her affairs. the daughter then asked her whether she had a will and received a reply in the negative. the daughter, mrs. appleton, followed this with an inquiry whether the decedent wanted to have things fixed up, and the decedent did not answer her. the daughter, nevertheless, thinking, as she said, that the employer and friend of her mother, mrs. hill, had a will, called up mrs. hill and, apparently, either told mrs. hill that the decedent wanted a lawyer to make a will, or that she had no will and was dying, for, in any event, mrs. hill, shortly after the telephone call, came to the decedent's house with mr. edwin b. goodell, a lawyer of montclair, to prepare a will for the decedent. the decedent was not asked whether she wanted to make a will prior to this time, and did not in anyway, so far as the testimony shows, request the attendance of mr. goodell or anyone else to make a will. when mr. goodell acquainted the decedent with the reason for his attendance, she said she did not want to make a will "tonight," or words to that effect; indicating, as mr. goodell put it, that she would prefer not to make a will that night. at that time there were in the room with the decedent, who was in bed, very sick, a mrs. fischer, mrs. wickham, who was holding her up or propping her up in bed, mrs. appleton, the daughter, mrs. hill and mr. goodell. in an adjoining room was a son of the decedent with his child or children. someone of the persons in the room--the testimony does not agree as to who it was, and it may be that it was more than one--urged and encouraged the decedent to make a will after her remark that she did not want to make one that night. mr. goodell says he did not, although he felt that the decedent wanted to make a will, and that if she did not make it that night she would never make it, because he thought she would die before morning. in any event, a short time after she said that she did not want to make a will that night, mr. goodell inquired of her what she wanted to do with her property, and someone in the room, he thinks it was mrs. wickham--but mrs. wickham says it was not, although all seem to agree that it was not mrs. appleton--suggested that she wanted to leave her house, the one in which she was then living with her daughter and grandchildren, to the three grandchildren. the decedent assented to this. but mr. goodell took the precaution to ask her directly whether she wanted her house to go that way and reminded her it would tie up the sale of the property, because the children were minors. the decedent, in replying to this, said that was what she wanted to do; she wanted it so that it could not be "spent." mrs. hill and mr. goodell agree as to this testimony, and mrs. wickham, the only other person in the room, who was interrogated on this point, said that she had no recollection one way or the other. then mr. goodell inquired of the decedent what she wanted to do with the residue of her estate, and again someone volunteered that she wanted it to go equally among her children. whereupon mr. goodell, having interrogated the decedent, she replied that she wanted the residue to go in that way. mr. goodell's recollection is that the decedent nominated the executor, herself, although he said it is possible that someone else in the room suggested it and that the decedent assented thereto. thereupon, the will having been read, paragraph by paragraph, the decedent and the witnesses duly executed it. the burden of proving undue influence, of course, rests upon the person or persons charging undue influence, and, as was said in the case of schuchhart v. schuchhart, in the fourth syllabi, 62 eq. 710, 49 atl. 485: "when undue influence is claimed to be established by inference from certain facts proved, and, upon all the facts proved, an equally justifiable inference may be drawn that the will executed was what testator would have made under the circumstances, the burden on contestants is not supported." see also in re richter's will, 89 n. j. eq. 162. the inference which the contestants would have the court draw from the facts is that the decedent intended to die intestate, so that her property would go to her children equally, and that her objection to making a will that night indicated her desire to die intestate, for she knew that her end was near and believed that if the making of the will were put off until the next day she would be dead and dead intestate. this is an inference which may be drawn from the facts, but an equally justifiable inference is that the decedent had the all-too-common disinclination to draw a will; that she sought to shirk the responsibility of deciding what disposition to make of her property, to avoid making and executing a will; that when brought face to face with her responsibility she yielded to the advice and suggestions of her friends, and, although originally preferring not to make the will, determined to discharge her responsibility and make the will. in no other way can the statement of the decedent that she wanted to tie up the house, so the children could not spend it, be reconciled. that remark indicated that the decedent had aroused herself to the task of making her will, had overcome her disinclination, determined to perform the duty of making a will and had considered the question of the disposition of her property. it is true that others made the suggestion as to what the decedent wanted to do with the property, and i am inclined to think that everyone in the room knew from talking with the decedent that she wanted to leave her property as she actually did leave it, although there is no direct testimony on this point, but the remark about preventing the children from spending the property was the product of the decedent's own mind; she initiated the remark, and thereby revealed her state of mind, both as to the matter of making a will at all and as to how she wanted her property to go. and it is not strange that she wanted the property to go in this way, for she knew it was her grandchildren's home (and we all know the wonderful love that grandparents have for grandchildren); she knew that they could not depend upon a father for support and upbringing and that their mother was the breadearner. her own children were grown up, married, most of them, and so far as the record shows not to need of assistance. that the devise of the house to the grandchildren is a natural, normal one, is emphasized by her disposition of the residue of her estate, for, having taken care of her grandchildren, assured them of a home during their minority at least, she proceeded to give to her children everything else that she had; and i am inclined to think she believed that the residue of the estate would be much larger than it actually is; that the return she would get from the estate of timothy arnold would be larger than it actually was. it is undoubtedly true that, except for the presence of the lawyer, which was brought about by mrs. hill and mrs. appleton, and except for the advice and encouragement to make a will and at once by those in the room to the decedent, she would have died without a will. but, instead of the presence of the lawyer and the said advice and encouragement dominating the deceased and destroying her free agency, it seems only to have served to arouse in her the necessity for making a will, if she would protect her grandchildren, to re-awaken and revive her apparently dormant and pre-existing desire to provide a home for her grandchildren, to do this and to give her the opportunity to carry out such desire or intention, which opportunity she seized and made the best of, for how else can her response to mr. goodell, that she wanted to tie up the house so that it could not be "spent," "that is what i want to do," be accounted for? certainly acts which produce such a result cannot be said to be acts of undue influence. stewart v. jordon, 50 n. j. eq. 733-741. and it is well settled that it is not the exercise of undue influence to advise, encourage, or urge the making of a will. in re barber's will, 49 atl. 826; in the matter of seagrist, 1 n. y. app. div. 615; 37 n. y. supp. 496; aff. 153 n. y. 682; 43 n. e. 1107. mr. goodell, who drew the will, is a reputable and careful lawyer, and i feel sure that he would not have prepared this will or permitted the decedent to execute it except he felt it represented her real wishes. nor do i think he would have permitted her to have executed this document if he for one moment conceived that she was making it for the sake of peace or to be rid of her visitors. that fact must also be considered in determining the question in hand. it seems to me, therefore, that the more probable inference to be drawn from the facts in this case is one which requires the upholding of the document as the will of the decedent and that the contestants have not sustained the burden of proving undue influence. the paper writing purporting to be the will of elizabeth marion is consequently admitted to probate. women jurors. does the right of suffrage entitle women to serve as jurors? this question has been answered in the affirmative in michigan, where it was held, in people v. barltz, 180 n. w. 423, 12 a.l.r. 520, that a constitutional declaration that every inhabitant of the state, being a citizen, shall be an elector and entitled to vote, makes women electors within the meaning of a statute requiring jurors to be drawn from the electors, and they are therefore entitled to perform jury duty. this decision seems to stand alone. a contrary conclusion was reached in re grilli, 110 misc. 45, 179 n. y. supp. 795, affirmed on opinion below in 192 app. div. 885, 181 n. y. supp. 938, which involved the right of an enfranchised woman to compel the board of assessors and the commissioner of jurors to complete the county jury lists by including therein the qualified women voters of the county. the court said: "the only claim made by the petitioner in connection with her application is that jury service is incidental to and a part of suffrage, and since, by the recent amendment of the state constitution, women are qualified to vote, they must be made jurors. the fallacy of this contention is found in an examination of the history of the jury system since the adoption of the first constitution in the state of new york. while citizenship has always been a qualification of jury service, every voter has not been included within the jury lists. the various laws with reference to jurors show that men who were entitled to vote have been excluded from jury service." in illinois, the fact that women are legal voters for the election of statutory officers, and certain other purposes, is held not to make them eligible for jury service in criminal cases, in people v. krause, 196 ill. app. 140, and people v. goehringer, 196 ill. app. 475. in virginia, according to 6 va. l. reg. n. s. 780, judge gardner, in instructing jury commissioners, distinguished between the right to vote and the duty to render jury service, by stating that the former is a constitutional right conferred, while the latter is a legislative duty imposed. he concluded that women cannot lawfully serve as jurors under the virginia statute, which limits that duty to "male citizens over twenty-one years of age," until the legislature so modifies the statute as to make it applicable to "all male and female citizens twenty-one years old." the court, in the wyoming case of mckinney v. state, 3 wyo. 719, 30 pac. 293, 16 l.r.a. 710, seems to have been of the opinion that a constitutional provision that "the rights of citizens of the state of wyoming to vote and to hold office shall not be abridged or denied on account of sex," and that "both male and female citizens of this state shall equally enjoy all civil, political, and religious rights and privileges," did not require that women voters be allowed to serve as jurors. the supreme judicial court of massachusetts, in re opinion of justices, 130 n. e. 685, answered questions submitted by the house of representatives by holding that, under the constitution of the united states and the constitution and laws of massachusetts, women are not liable to jury duty. the state statute subjects to jury service persons "qualified to vote for representatives to the general court." these words, while broad enough to include women, are held not to do so, when interpreted in connection with the history of the times and the entire system of which the statute forms a part. it was determined, however, that the general court had constitutional power to enact legislation making women liable to jury duty.--_case and comment_. miscellany new chancery rule. the chancery rules have been supplemented by the addition of a new rule numbered 165a, promulgated january 6, 1922, as follows: 165a. all pleadings, proofs and other papers presented to, and all orders and decrees signed by the chancellor or a vice-chancellor or advisory master at the state house in trenton, shall be forthwith filed with the clerk; and all such which shall be so presented and signed at chambers or elsewhere shall be marked filed by the chancellor or vice-chancellor or advisory master (which need only be over the initials of his name and office, and may be done by his official stenographer or sergeant-at-arms at his direction), and all such papers shall be retained by the chancellor or vice-chancellor or advisory master and delivered or forwarded by him, or at his direction, to the clerk with all convenient speed. supplementary proceedings. attention has been called to the bar of bergen county by mr. justice parker to a laxity of practice in relation to supplementary proceedings in cases of judgment and execution, and, as the matter should interest the bar of the state generally we give, herewith, what has been spread before the bergen attorneys: "1. originally an attorney or agent could not make the affidavit. westfall v. dunning, 50 n. j. l. 459. this was changed by statute. p. l. 1890, p. 185. but it should appear as one of the direct statements in the affidavit that the attorney is the attorney, i. e., "j. s., being duly sworn, says that he is the attorney herein for a. b. the plaintiff," and not merely, "j. s., attorney for the plaintiff, being duly sworn," which is a mere appositive and not a definite statement. "2. such affidavits frequently say: "that he has read the foregoing petition, and that the statements thereof so far as they relate to his own acts are true, and so far as they relate to the acts of others he believes them to be true." this, it would seem, is not a compliance with section 24 of the executions act. such an affidavit in chancery was considered in barr v. voorhees, 55 eq. 561, and held sufficient for an order for discovery, but not for an injunctive order. but it is to be noted that this was under section 90 of the chancery act of 1875 (rev. 121; g. s. 1895, p. 389) which reads "that he believes the contents thereof are true," whereas, section 24 of the executions act requires the creditor or his agent to verify the petition, in which he shall state the amount due on the execution, the return by the officer, _and his belief_ that the creditor has assets, etc. the belief is, therefore, restricted to the debtor's assets and does not apply to the recovery of the judgment or the issue or return of execution. as to these facts, the late chief justice depue said he doubted the sufficiency (at law) of such an allegation. 10 n. j. l. j. 223-4; frankel v. miner, 10 n. j. l. j. 341. "there is no difficulty about an attorney deposing from personal knowledge that a judgment was entered, and execution issued and returned, as these things are matters of record; and as chief justice beasley said in westfall v. dunning, 50 n. j. l. 461 already cited: "it is obvious that such a statement could be safely made by anyone who was possessed of the loosest information," etc. he was there speaking of verifying the belief of the _creditor_; under the present act the belief of the attorney may do as well, but the criticism seems applicable to the other allegations also. "the printed forms in jeffery and on some of the law blanks are open to criticism in the above respects, and debtors should not be hauled before commissioners for examination unless the statute is complied with." accident to mrs. emery. mrs. john r. emery, widow of the late vice-chancellor emery, while traveling with friends in algiers, met with an automobile accident about feb. 12th. the automobile turned over on the edge of a mine shaft, and it is stated she sustained a fracture of both arms. she went abroad oct. 8th. death of newark's mayor. mayor alexander archibald, of newark, died on feb. 11th, after an operation for a pressure on the brain nerves. he is said to have been the first mayor of newark to die while in office. he was born in edinburgh, scotland, december 13, 1869; was three years of age when his parents came to america. he was a silverware manufacturer in newark. he was elected to the council of newark in 1910; became city clerk in 1914, and in 1917 was elected city commissioner and became mayor. he was a democrat and was talked of as a candidate for governor. his funeral was large and observed generally throughout the city. humor of the law. a memphis lawyer entered his condemned client's cell: "well," he said, "good news at last!" "a reprieve?" exclaimed the prisoner eagerly. "no, but your uncle has died leaving you $5,000 and you can go to your fate with the satisfying feeling that the noble efforts of your lawyer in your behalf will not go unrewarded." governor's appointments. adam o. robbins, of flemington, common pleas judge of hunterdon county in place of george k. large. henry e. newman, of lakewood, common pleas judge of ocean county in place of william h. jeffrey. marshall miller, of bloomsbury, prosecutor of the pleas for hunterdon county in place of harry j. able. wilfred h. jayne, jr., prosecutor of the pleas for ocean county in place of richard c. plumer. mahlon margerum, member of the state board of taxes and assessment. j. harry foley, secretary to governor edwards, state superintendent of weights and measures. joseph a. delaney, of paterson, common pleas judge in place of william w. watson. joseph f. autenreith, of jersey city, in place of president john j. treacy, resigned, on public utilities commission. austin h. swackhamer, of woodbury, judge of gloucester common pleas, in place of francis b. davis. book received. the nature of the judicial process. by benjamin n. cardozo, new haven: yale university press, 1821. this book is especially welcome just now, after reading judge cardozo's article in the december number of the "harvard law review," entitled "a ministry of justice," which shows that his study of the nature of the judicial process has led him to seek for practical means to correct the errors that have crept into the law in the application of legal principles. this article in the "harvard law review" is in itself the result of his study during his long experience on the bench of the problem he deals with in these lectures on the nature of the judicial process. the book consists of four lectures delivered in the william l. storrs' lecture series in the law school of yale university, 1921. the titles of the lectures suggest the scope of his inquiry. they include: the method of philosophy; the methods of history, tradition and sociology; the judge as a legislator; adherence to precedent; the subconscious element in the judicial process. "any judge," he says, "one might suppose, would find it easy to describe the process which he had followed a thousand times and more. nothing could be farther from the truth." in telling of the study of precedents in arriving at the rule of law to be applied to the decision of cases, he takes up, first, in the introduction, the method of philosophy and inquiries, in what proportions different sources of information shall be allowed to contribute to the result. if a precedent is applicable, when shall he refuse to follow it, and if no precedent is applicable, how does he reach the rule that will make a precedent for the future? "if," he says, "i am seeking logical consistency, the symmetry of the legal structure, how far shall i seek it? at what point shall the quest be halted by some discrepant custom, by some consideration of the social welfare; by my own or the common standards of justice or morals?" and again, he says: "the first thing he does is to compare the case before him with the precedents, whether stored in his mind or hidden in the books. i do not mean that the precedents are ultimate sources of the law, supplying the sole equipment for the legal armory, the sole tools, to borrow maitland's phrase, 'in the legal smithy.' back of precedents are the basic juridical conceptions which are the postulates of judicial reasoning, and farther back are the habits of life, the institutions of society, in which those conceptions had their origin, and which, by a process of interaction, they have modified in turn." in the lecture on the methods of history, tradition and sociology, he shows how the method of philosophy comes in competition with other tendencies which find their outlets in other methods. the tendency of a principle to expand itself to the limit of its logic may be counteracted by the tendency to confine itself within the limits of its history. "very often," he says, quoting justice holmes, "the effect of history is to make the path of logic clear. history, in illuminating the past, illuminates the present, illuminates the future." the law of real property supplies the readiest example of a field where there can be no progress without history, and where "a page of history," to quote holmes again, "is worth a volume of logic." he refers to leading examples of cases in which history has moulded the rules established by precedents and customs, and how the law merchant has not been moulded into a code, but has been expanded and enlarged to meet the wants of trade, and how the course of dealing to be followed is defined by the customs, or, more properly speaking, the usages of a particular trade, or market, or profession, and the natural and spontaneous evolutions of habit fix the limitation of right and wrong. the law of real estate is taken merely as an example. maitland, holmes, pollock and pound, and many others, have pointed out the historical origins and development in the forms of action, the law of pleading, the law of contract, and the law of torts. the historic influences are strong in some departments of the law, and in others larger and fundamental conceptions tend to control the judicial mind, and there is a tendency to harmony of the law of different countries. from history and philosophy and custom he passes to the power of social justice, which he says is the force that in our day is becoming the greatest of the directive forces of the law. it is by the way of history and tradition that he comes to the method of sociology. it is by the common law method of applying old principles to new conditions that courts have been able to preserve the continuity of the law in changing conditions. among the leading cases cited is the bakeries case, lochner v. new york, 198 u. s. 45, wherein judge cardozo suggested that in this decision the dissenting opinion of justice holmes was the beginning of a new point of view in the dealing with the social welfare, which, he said, has since written itself into law. justice holmes made the remark, "the fourteenth amendment does not enact herbert spencer's social status," and judge cardozo cites later cases in the supreme court to the effect that "a constitution is not intended to embody a particular economic theory, whether of paternalism ... or of _laissez faire_." it was by careful research of the effect of long hours of work for women that the change of opinion was brought about. there is a short and very interesting lecture on precedents that are of doubtful value questioning what ought to be done with them. he quotes president roosevelt's message to congress, december 8, 1908, in which he says: "the chief lawmakers in our country may be, and often are, the judges, because they are the final seal of authority.... the decisions of the courts on economic and social questions depend upon their economic and social philosophy; and, for the peaceful progress of our people during the twentieth century, we shall owe most to those judges who hold a twentieth century economic and social philosophy and not a long and out-grown philosophy which was itself the product of primitive economic conditions." this aroused at the time, he says, a storm of criticism and betrayed ignorance of the nature of the judicial process, but the author said he had no quarrel with the doctrine that judges ought to be in sympathy with the spirit of their times. yet this does carry us very far upon our road to the truth. the spirit of the age, as it is revealed to each of us, is only too often only the spirit of the group in which the accidents of birth, or education, or fellowship have given us a place. no effort or revolution of mind will overthrow utterly and at all times the empire of these unconscious loyalties. the relation of the law to the economic and social progress is of great importance at this time, and it is well for us to have the help of this thoughtful and suggestive discussion by an experienced and conscientious judge. e. q. k. obituaries. mr. thomas w. randall. mr. thomas william randall, long prominent as a lawyer in paterson, died at his residence at upper preakness, a few miles from that city, on feb. 9, 1922, after a long illness. up until a few days of his death he expected to live at least through the coming summer, but the final end came with little warning. mr. randall was born at slough, in buckinghamshire, england, about twenty miles from london, near the historic windsor castle and famous stoke pogis church, on june 24, 1853, and is a descendant of some of the most substantial and oldest families in that locality. he arrived in the united states, with his parents, on june 8, 1866, sailing from london, and resided first in franklin township, bergen county, and later at hawthorne, in passaic county, until he entered upon the study of his profession. he first studied law in the office of judge hopper, in paterson, and afterwards with messrs. pennington & dewitt, of newark, and also attended the columbia law school in new york. he was admitted to the new jersey bar at the june term of the supreme court in 1877, and, after spending some time abroad, came to paterson and entered upon the practice of law, in which he was actively engaged ever after until his last illness. he became a counselor at the february term, 1889. mr. randall took no active part in politics, and never held a political office; he had no liking for mere partisanship. his practice was large in the orphans' court and in chancery proceedings, as he settled many estates. he was a special master of the court of chancery and as such many matters of reference were heard by him, and always with promptness and efficiency. he was also a supreme court commissioner. he was counsel for many of the old passaic families and for various corporations. in the great paterson fire he lost every thing in his office except what was in his safe. he was an extensive reader of good books and had an excellent memory, a refined taste and the best of habits. he had none of the common vices of the day. for many years mr. randall was a member of the second presbyterian church. he served there on the board of trustees and was also a member of the session. mr. randall served the second church in a legal capacity without cost to the congregation and was always glad to give legal advice to the poor in need of it. he also served for many years on the board of trustees of the new jersey presbytery and was known by every clergyman in that presbyterian body. he was seldom absent at a stated meeting. mr. randall was also the recognized friend of the young men's christian association and his services in legal transactions were also at the disposal of the board of managers. he was counsel for the young women's christian association and served as a member of the investment committee, with other prominent men of the city. when in 1886 the people of the people's park district appealed to the late dr. charles d. shaw and the elders of the second presbyterian church for the establishment of a sunday school in that district of the city, mr. randall was one of the most interested members of the session in the movement to that end. through the aid extended on behalf of the plan the sunday school was opened a few weeks after the request was considered, and mr. randall became the superintendent. he frequently referred to that service as one of the happy experiences of his life. later the school movement grew into the establishment of the madison avenue presbyterian church, now one of the most thriving congregations in the city, under the pastorate of the rev. franklin j. miller. mr. randall frequently visited the people's park church and school to note the progress of the work he had a prominent part in starting. he was also interested in the st. augustine presbyterian church, and in establishing headquarters for the colored men on governor street. mr. randall was a christian citizen and was concerned in the welfare of paterson. he was a member of the passaic county bar association, a director of the paterson building and loan association, and was identified with the old board of trade. when the centennial celebration of paterson was held in 1892 he was one of the hundred prominent men of the city selected to plan for that big event. for several years before his death mr. randall was a member of the church of the redeemer. mr. randall was specially fond of his native england, and made various journeys to that county. the editor of this journal has special cause to know of his interest in travel and fine qualities as a traveler, having been in his company abroad in 1898, 1903, 1907 and 1910, in some of which occasions he extended his trip to france, switzerland, italy, germany and holland; also to ireland and scotland. in 1910 he saw the passion play. he was also a frequent visitor to lake mohonk. from its beginning he was a patron and valued friend of this journal, frequently sending to it copies of legal articles from english newspapers and occasionally contributing to its pages. the article we shall publish in our next issue, entitled "a letter to portia," was received from him only a few days before his death, as were some notes concerning the death of his friend, mr. robert hopper, also of the paterson bar. in 1879 mr. randall married miss jennie s. perry, a well known and highly esteemed teacher in the paterson public schools, and at one time principal of school number two. mrs. randall died in 1912. there survives one son, edmund brown randall, who is now the judge of the paterson district court. a brother of thomas w., mr. richard randall, also a member of the paterson bar, died oct. 16, 1913. col. e. livingston price. colonel edward livingston price, for 56 years past a member of the essex county bar, died at his home, 112 bruen street, newark, on february 4, from a heart attack, after an illness of about one year. colonel price was born in new york city dec. 20, 1844, being a brother to former governor rodman m. price, and a son of francis and maria louisa (hart) price of new york city. he received his education at dr. cattell's edgehill school, princeton; dr. woodhull's school, freehold, and dr. john f. pingry's school, then in newark and now in elizabeth. he would have gone to college had it not been for the outbreak of the civil war. he entered the union army in april, 1861, when he was sixteen, as second lieutenant of company e, 74th regiment, new york volunteers, having been unable to get a commission in new jersey. shortly afterward he was promoted to first lieutenant. in this capacity he served from july, 1861, to april, 1862, when major general hooker placed him on his personal staff as ordinance officer of the third army corps, "hooker's division." as ordinance officer he served at the siege of yorktown, va., and during the whole of the peninsular campaign. in august, 1862, he became major of his old regiment, the 74th new york, which he commanded through pope's campaign in virginia, in the battles of bristow station, second manassas and chantilly. his promotion to the colonelcy of the 145th new york volunteers took place on february 18, 1863. he served with this regiment until january, 1864, taking part in the battles of chancellorsville and gettysburg. at the end of the war he studied law with the late u. s. justice joseph bradley, and was admitted as a new jersey attorney at the june term, 1866, but did not become counselor until february, 1879. he also became admitted to the various united states courts. he became, in newark, an active lawyer not only but a strong political speaker and manager, and was long chairman of the essex county democratic committee and, for a time, of the state democratic committee. his ability as an organizer and his forcefulness as a speaker made him a powerful factor in moulding sentiment in party conventions. his tall figure and military bearing added their effect. in the latter years of his political activity he was familiarly referred to as the "old war horse of the democracy." as a lawyer he ranked high in municipal practice. he was counsel for the city of newark and various outlying townships and for many of the boards in newark. in 1865, before he became of age, he accepted a nomination for assembly from essex county and was sworn into office just after he rounded his twenty-first year. he was re-elected in 1867. as a legislator he applied his active intelligence to a study of the needs of his constituents and of the state in general and was the author of many laws now on the statute books. in later life colonel price bought a farm near branchville, sussex county, and spent much of his time there. on june 1, 1864, colonel price married emma, daughter of william and mary ann marriott of newark. on april 27, 1887, he was married again, the second wife being frederica theresa, daughter of edward c. and eva elizabeth eberhardt of newark. his surviving children are a son, frank m. price, who lives at the price home, and two daughters, mrs. frances maria josephine spear, wife of edwin m. spear of trenton, and mrs. marion white, a widow, also of trenton. edward livingston price, the eldest son, died three years ago. the eldest daughter, marie louise jones, died in kansas city, mo. mr. charles j. roe. mr. charles j. roe, of the jersey city bar, died in faith hospital, st. petersburg, florida, on feb. 10th. for some time past he had not been in good health, and he went south the latter end of january to seek improvement. soon after his arrival there he became worse and entered the hospital where he died. in jersey city he had recently made his home, for himself and wife, in the fairmount hotel on the boulevard. mr. roe was the son of charles roe and elizabeth ann (coult) roe, and was born in sussex county, sept. 11, 1850. his father was the surrogate of that county for three terms (1863-'78) and then opened a drug store in newton. the son obtained his preparatory education at chester institute and newton collegiate institute; then entered princeton college and was graduated therefrom in 1870, in the same class as chief justice gummere and ex-judge george m. shipman of belvidere. he then studied law with the late levi shepherd of newton, and became an attorney at the june term, 1873, and a counselor three years later. he practiced very successfully in newton until 1894, a portion of the time having a law partner, mr. frank shepherd; at the last named date, he removed to jersey city. recently he has had, as a law partner, j. haviland tompkins, the firm being roe & tompkins. mr. roe was an advisory master of the court of chancery and supreme court commissioner. his practice was a general one, but he somewhat specialized in chancery work. he was recognized as an able attorney, of scholarly instincts, being learned not only in his profession but in the arts and sciences. he knew some foreign languages and had traveled extensively in europe as well as in this country. mr. roe married margaret, daughter of james f. and sarah (northrup) martin, and is survived by his wife, and his sister, mrs. john r. hardin of newark. transcriber notes: passages in italics were indicated by _underscores_. small caps were replaced with all caps. throughout the dialogues, there were words used to mimic accents of the speakers. those words were retained as-is. errors in punctuations and inconsistent hyphenation were not corrected unless otherwise noted. on page 67, "complaintants" was replaced with "complainants". on page 74, "breaking a storehouse" was replaced with "breaking into a storehouse". on page 76, "b & b" was replaced with "b. & b.". on page 78, a period was deleted after "essex". on page 88, "37 n. y. supp, 496" was replaced with "37 n. y. supp. 496". on page 90, "haled" was replaced with "hauled". on page 94, "christain" was replaced with "christian". on page 94, "assocaition" was replaced with "association". california 1849-1913 or the rambling sketches and experiences of sixty-four years' residence in that state by l. h. woolley member of the society of california pioneers and of the vigilance committee of 1856 california 1849-1913 trip across the plains. the year 1849 has a peculiarly thrilling sensation to the california pioneer, not realized by those who came at a later date. my purpose in recording some of my recollections of early days is not for publication nor aggrandizement, but that it may be deposited in the archives of my descendants, that i was one of those adventurers who left the green mountains of vermont to cross the plains to california, the el dorado--the land of gold. in starting out i went to boston, new york, philadelphia, cincinnati, st. louis and independence, missouri. here i joined the first mule train of turner, allen & co.'s pioneer line. it consisted of forty wagons, one hundred and fifty mules, and about one hundred and fifty passengers. we left the frontier on the fourteenth of may 1849, and here is where our hardships commenced. many of us had never known what it was to "camp out" and do our own cooking. some of the mules were wild and unbroken, sometimes inside the traces, sometimes outside; sometimes down, sometimes up; sometimes one end forward and sometimes the other; but after a week or two they got sobered down so as to do very well. our first campfire at night was on the little blue river, a few miles from independence; it was after dark when we came to a halt, and it was my friend gross' turn to cook, while the rest brought him wood and water and made a fire for him by the side of a large stump. i knew he was a fractious man, so i climbed into one of the wagons where i could see how he got along. the first thing that attracted my attention was the coffee pot upside down, next away went the bacon out of the pan into the fire. by this time he was getting warm inside as well as outside, and i could hear some small "cuss words"; next he looked into the dutch oven, and saw that his dough had turned to charcoal. i got down into the wagon out of sight, and peeked through a crack; he grew furious, danced around the fire, and the air was full of big words. finally we got a little coffee and some cakes and bacon, then i undertook to do a little sleeping but it was no go. thus ended my first night on the plains. in the morning we started on our journey to travel over a level untimbered, uninhabited country for nearly four hundred miles, without anything of especial interest occurring save cholera, from which there was terrible suffering. we lost about seventy-five of our number before we reached fort laramie, seven hundred miles from missouri. there was a dutchman in my mess by the name of lamalfa, who understood but little of english. we had dubbed him "macaroni" for having brought a lot of the stuff with him and on our second night out it came his turn to stand guard. he was detailed to the inner guard and instructed as to his duties. on the relief of the outer sentinel and his return to camp, lamalfa issued the challenge which was to repeat three times "who comes there?" and in case of no response to fire, and as the outer sentinel came upon him he called out "who comes there three times" and fired; fortunately he was a poor shot and no harm was done. it seems that "macaroni" was not aware of there being an outer guard. when near fort childs, four hundred miles out, all the passengers left the wagons, except the drivers, and walked on in advance, leaving the wagons light (they were canvas covered). there came up one of those terrible hailstorms, common in that country, which pelted the mules with such severity as to cause them to take fright and run away, breaking loose from the wagons which were taken by the storm in another direction, first wheels up, then top, until the latter was all in rags; then they stopped. when we came into camp at night they looked sorry enough and you would have thought they had just come out of a fierce fight. we pursued our journey along the south bank of the platte until we reached fort laramie, capturing some antelopes and occasionally a buffalo. up to this time we had had a great deal of sickness in camp. i remember one poor fellow (his name i have forgotten), we called him chihuahua bob; he was a jovial, good natured fellow and drove one of the eight-mule baggage wagons. i enquired about him one morning and was told that he had died during the night of cholera, and had been left in his shallow grave. we met some returning emigrants that morning who had become discouraged and were going back to their old homes this made me think of home and friends, the domestic happy fireside, and all that i had left behind, "but," said i to myself, "this won't do, i am too far out now; pluck is the word and i'm not going back on it." early next morning we were once more upon our long journey, slowly traveling towards the far, far west. the first place of interest that presented itself to our view was a narrow passage for the river between two perpendicular rocky banks, which were about one hundred feet high and looked as though a man could jump from one to the other at the top. this was called the "devil's gate." above and below was the broad prairie. at intervals along the platte were villages of prairie dogs, who were about the size of large grey squirrels, but more chunky' of a brownish hue, with a head somewhat resembling a bulldog. they are sometimes eaten by the indians and mountaineers. their earth houses are all about two feet deep; are made in the form of a cone; are entered by a hole in the top, which descends vertically some two or more feet and then takes an oblique course, and connects with others in every direction. these towns or villages sometimes cover several hundred acres and it is very dangerous riding over them on horseback. we will now pass to another interesting object called "chimney rock" which is not altogether unlike bunker hill monument. it stands by itself on the surrounding level country, with a conical base of about one hundred and fifty feet in diameter and seventy-five feet high where the nearly square part of the column commences, which is about fifty feet on each of the four sides. it is of sandstone and certainly a very singular natural formation. altogether it is about two hundred feet high. i will mention here that the banks of the platte are low, that the bed is of quicksand, that the river is very shallow and that it is never clear. one of our company attempted to ford it on foot. when about two-thirds over, in water up to his waist, he halted, being in doubt as to whether he should proceed or return. while hesitating between two opinions his feet had worked down into the quicksand and became so imbedded that he could not extricate them. realizing his perilous position he at once gave the masonic grand hailing sign of distress and in a moment there were several men in the water on their way to his relief. they reached him in time and brought him safely into camp. about this time there was considerable dissatisfaction manifested in camp on account of the slow progress we were making. some left the train and went on by themselves, others realized the necessity of holding to together to the last in order to protect themselves as well as to care for those among us who were sick. the peculiar characteristics of the party at this time seemed to be recklessness and indifference to the situation, but the better judgment finally prevailed and we went on in harmony. the next three hundred miles were devoid of any especial interest. this brings us to the summit of the rocky mountains (at south pass) which divides the rivers of the atlantic and pacific oceans, and ends their course thousands of miles apart. here are the ever snow-capped peaks of the wind river mountains looming up on the north. they are conical in form and their base is about one thousand feet above the plain that extends south. this brings us to the nineteenth day of july, 1849. on the night of this day water froze to the thickness of one-fourth of an inch in our buckets. the following day we commenced descending the western slope, which was very rapid and rough. the twenty-first brought us to green river which was swollen and appeared to be a great barrier. here, for the first time, we brought our pontoons into use and swam the mules, so that after two days of hard work we were all safely landed on the west bank. we are now at the base of the rocky mountains on the west, passing from one small valley to another, until we reached a bend in the bear river. here let us pause for a moment and study the wonders of nature. first, the ground all around is covered with sulphur; here, a spring of cold soda water; there, a spring of hot soda water; fourth, an oblong hole about four by six inches in the rocky bank, from which spouts hot soda water, like the spouting of a whale. it is called "steamboat spring." it recedes and spouts about once in two minutes. all of these are within a hundred steps of each other. now, our canteens, and every available vessel is to be filled with water, for use in crossing forty-five miles of lava bed, where there is neither water nor grass to be found and must be accomplished by traveling day and night. this was called "subletts' cutoff," leaving salt lake to the south of us, and brings us to the base of the mountains at the source of the humboldt river. on the west side, in crossing over, we encountered a place in a gorge of the mountain called "slippery ford," now called the "devil's half-acre." it was a smooth inclined surface of the rock and it was impossible for the mules to keep their footing. we had great difficulty in getting over it. now we are at the headwaters of the humboldt river, along which we traveled for three hundred miles, over an alkali and sandy soil until we came to a place where it disappeared. this was called the "sink of the humboldt." this valley is twenty miles wide by about three hundred long. during this part of our journey there was nothing of interest to note. the water of this river is strongly impregnated with alkali. about forty miles in a southerly direction from the sink of the humboldt (now called the lake) is old "ragtown" on the banks of the carson river, not far from fort churchill. in traveling from one river to the other there was no water for man or beast. when we were about half way we found a well that was as salt as the ocean. we reached this well sometime in the night of the first day and our mules were completely fagged out, so we left the wagons, turned the mules loose, and drove them through to the carson, arriving there on the night of the second day. here was good grass and fine water, and bathing was appreciated to its fullest extent. we remained for several days to let our animals recruit, as well as ourselves, then we went back and got the wagons. we traveled westward through carson valley until we entered the six mile canon, the roughest piece of road that we found between missouri and california. there were great boulders from the size of a barrel to that of a stage coach, promiscuously piled in the bed of this tributary to the carson, and over which we were obliged to haul our wagons. it took us two days to make the six miles. arrival in california. now we see silver lake, at the base of the sierra nevadas on the east side; our advance to the summit was not as difficult as we anticipated. having arrived at this point we are at the source of the south fork of the american river and at the summit of the sierra nevadas. we now commenced the descent on a tributary of this river. after a day or two of travel we arrived at a place called weaverville, on the tenth day of september, 1849. this place consisted of one log cabin with numerous tents on either side. here was my first mining, but being weary and worn out, i was unable to wield the pick and shovel, and so i left in a few days for sacramento where i undertook to make a little money by painting, but it was a failure, both as to workmanship and as to financial gain. however, by this time i had gained some strength and left for beal's bar at the junction of the north and south forks of the american river. here i mined through the winter with some success. in the spring of 1850 thirty of us formed a company for the purpose of turning the south fork through a canal into the north fork, thereby draining about a thousand yards of the river bed. just as we had completed the dam and turned the water into the canal, the river rose and away went our dam and our summer's work with it. winter coming on now nothing could be done until spring, so i left for san francisco where i had heard of the death of a friend at burns' old diggings on the merced river, about seventy-five miles from stockton, and knowing that his life was insured in favor of his wife i went there and secured the necessary proof of his death so that his widow got the insurance. there was considerable hardship in this little trip of about one week. on my return, and when within about thirty miles of stockton, i camped for the night at knight's ferry, picketed my pony out, obtained the privilege of spreading my blankets on the ground in a tent and was soon in a sound sleep, out of which i was awakened at about two o'clock in the morning by feeling things considerably damp around me (for it had been raining). i put out my hand and found i was lying in about three inches of water. i was not long getting out of it, rolled up my blankets, saddled my pony and left for stockton. here i arrived at about nine o'clock, sold the pony, and was ready to leave at four o'clock for san francisco. while waiting here (stockton) i became acquainted with a kentucky hunter who told me the story of his experiences of the day previous. he said: "i came to the place where you stayed last night, yesterday morning, and was told that there were a number of bears in the neighborhood, and that no one dared to hunt them. i remarked that that was my business, and i would take a hand at it; i strapped on my revolvers and knife, shouldered my kentucky rifle and started out. i had not gone more than half a mile, when i discovered one of the animals i was in search of, and away my bullet sped striking him in the hip. i made for a tree and he made for me! i won the race by stopping on the topmost branch, while he howled at the base; while reloading my rifle i heard an answer to his wailing for me or for his companion--it didn't matter which. very soon a second cry came from another direction, and still one more from the third point of the compass. by this time one had reached the tree and i fired killing him. hastily reloading, i was just in time to fire as the second one responded to the first one's howl; he fell dead; then the third arrived and shared the same fate. having allowed the first one to live as a decoy, his turn came last; then i descended and looked over my work--four full-grown bears lay dead at my feet." to corroborate this statement i will say that i saw one of them on the hooks in front of a butcher shop in stockton, and the other three went to san francisco on the same boat that i did. i met the hunter on the street about a week later and he told me that he realized seven hundred dollars for his bears. i do not make the statement as a bear story, but as a bare fact. life in the mines. the preceding pages were written about twenty years ago, and only covered about one and one-half years after leaving the green mountains of old vermont. since which time, i have experienced nearly all of the vicissitudes of the state to the present time (1913). i will now attempt to give an account of my stewardship from that time on. i date my arrival in the state, weaverville, about three miles below hangtown (now placerville), september 10th, 1849. this was where i did my first mining, which was not, much of a success, on account of my weak condition caused by my having the so-called "land scurvy," brought on from a want of vegetable food, and i left for sacramento city where i remained for a week or two and then left and went to grass valley. there i made a little money, and went to sacramento city and bought two wagon loads of goods, went back to grass valley and started a hotel, ran it a few weeks, and the first thing i knew i was "busted." it is now in the winter of '49 and '50 and i went to sacramento again, and from sacramento to beal's bar on the north fork of the american river at the junction of the north and south forks. by this time i had gained my strength so that i was more like myself, and i bought a rocker, pick, shovel and pan and went into the gulches for gold. i had fairly good luck until spring. by this time i had laid by a few hundred dollars, and i joined a company of thirty to turn the south fork of the american river into the north fork, by so doing we expected to drain about one-fourth of a mile of the bed of the south fork. the banks of the river were rich and everything went to show that the bed of the river was very rich, and we went to work with great hopes of a big harvest of gold. the first thing we did was to build a dam, and dig a canal, which we accomplished in about four months. about this time snow and rain came on in the mountains, raised the water in the river and washed away part of our dam. it was now too late to build again that season. now you see the hopes and disappointments of the miner. while we were at work on the canal we had occasion to blast some boulders that were in our way. we had a blacksmith to sharpen the picks and drills who had a portable forge on the point of land between the two rivers. when we were ready to blast the rock we gave him timely warning, he paid no heed, the blast went off, and a portion of a boulder weighing about 500 pounds went directly for his forge and within about six inches of his legs and went on over into the north fork. the man turned about and hollered to the boys in the canal "i surrender." about this time the river had risen to such an extent that it was thought advisable to suspend operations until the next spring. this was a dividing of the roads, and each member had to look out for himself. i went to mokelumne hill, staked out some claims and went to work to sink a shaft through the lava to bedrock. the lava on the surface is very hard, but grows softer as you go down. while i was thus banging away with my pick and not making much headway, there came along a mr. ferguson from san francisco, on a mule. he stopped and looked at me a minute and then said, "young man, how deep do you expect to go before you reach bedrock?" i said, "about 65 or 75 feet." "well," said he, "by ---you have got more pluck than any man i ever saw." he went on and so did i, and i have not seen him since. it took me about two weeks to get so that i could not throw the dirt to the surface, then i had to make a windlass, get a tub and rope, and hire a man to help me at eight dollars a day, and 50 cents a point for sharpening picks. these things completed and in operation, i was able to make two or three feet per day, and we finally reached the bedrock at a depth of 97 feet. the last two feet in the bottom of the shaft i saved for washing, and had to haul it about one mile to water. i washed it out and realized 3 1/2 ounces of very coarse gold. now we were on the bedrock and the next thing to do was to start three drifts in as many directions. this called for two more men to work the drifts, and a man with his team to haul the dirt to the water, while i stood at the windless and watched both ends. this went on for one week. when i washed out my dirt, paid off my help and other expenses, i had two dollars and a half for myself. about this time i was feeling a little blue and i gave directions for each man in the drifts to start drifts to the left at the end of each drift. this was done, and we went on for another week as before, and this time i came out about one hundred dollars ahead. about this time a couple of miners came along and offered me thirteen hundred dollars for my claim, and i sold it, took the dust and went to sacramento and sent it to my father in vermont. that paid up for all the money that i had borrowed, and made things quite easy at home. now, i am mining again with cradle, pick, shovel and pan in gulches, on the flats, in the river and on the banks, with miner's luck, up and down, most of the time down. however, "pluck" was always the watchword with me. i floated some of the time in water, some of the time in the air, some of the time on dry land, it did not make much difference with me at that time where i was. i was at home wherever night overtook me. but finally i got tired of that and began to look about and think of home and "the girl i left behind me." home again. married. return to california. in the spring of '52 i left san francisco on the steamer "independence" via the "nicaragua route" for new york, arrived there in course of a month, and took train for boston, where i found my father from vermont with a carload of horses. this was clover for me. we remained there a week or ten days, then left for home. the "girl i left behind" was a vermont lady but was visiting a sister in cincinnati, ohio. in the spring of 1853 i went on to ohio to see the "girl i left behind me," and married the "girl i had left behind me." we then went to vermont, where we remained until the year of 1854. in the summer of this year i had the second attack of the "california fever." i called in dr. hichman and he diagnosed my case, and pronounced it fatal, and said there was no medicine known to science that would help me, that i must go, so i took the "girl i left behind me" and started for san francisco. vigilance committee of 1865. on my return to san francisco it did not take me long to discover that the city was wide open to all sorts of crime from murder, to petty theft. in a very short time i became interested in the pacific iron works, and paid very little attention to what else was going on around me until the spring of '56. here was a poise of the scales, corruption and murder on one side, with honesty and good government on the other. which shall be the balance of power, the first or the last? on may 14th, 1856, james king, editor of the "evening bulletin," was shot by jas. p. casey on the corner of washington and montgomery streets. he lingered along for a few days and died. this was too much for the people and proved the entering wedge for a second vigilance committee. during the first 36 hours after the shooting there were 2,600 names enrolled on the committee's books. of that number, i am proud to say, i was the 96th member, and the membership increased until it amounted to over 7,000. shooting of gen. richardson. i will first relate a crime that had happened the november previous (november 17, 1855), in which charles cora had shot and killed general william h. richardson, united states marshal for the northern district of california. these men had a quarrel on the evening of november 17th, 1855, between 6 and 7 o'clock, which resulted in the death of general richardson by being shot dead on the spot in front of fox & o'connor's store on clay street, between montgomery and leidesdorff streets, by cora. shortly after this cora was arrested and placed in custody of the city marshal. there was talk of lynching, but no resort was had to violence. mr. samuel brannan delivered an exciting speech, and resolutions were declared to have the law enforced in this trial. general richardson was a brave and honorable man, and beloved by all. he was about 33 years of age, a native of washington, d. c., and married. cora was confined in the county jail. we will now leave this case in the mind of the reader and take it up later on. shooting of james king, of william. on may 14th, 1856, the city was thrown into a great excitement by an attempt to assassinate james king, of william, editor of the "evening bulletin," by james p. casey, editor of the "sunday times." both casey and king indulged in editorials of a nature that caused much personal enmity, and in one of the issues of the "bulletin" king reproduced articles from the new york papers showing casey up as having once been sentenced to sing sing. casey took offense at the articles, and about 5 o'clock in the afternoon, at the corner of montgomery and washington streets, intercepted king who was on his way home, drew a revolver, saying, "draw and defend yourself," and shot him through the left breast near the armpit. mr. king exclaimed, "i am shot," and reeling, was caught up and carried to the pacific express office on the corner casey was quickly locked up in the station house[1]. immediately following the shooting large crowds filled the streets in the neighborhood anxious to hang to the nearest lamp post the perpetrator of the crime. casey was immediately removed to the county jail for safer keeping. here crowds again congregated, demanding the turning over to them of casey and threatening violence if denied. mayor van ness and others addressed them in efforts to let the law take its course but the crowd which had been swelled into a seething mass, remonstrated, citing the shooting of marshal richardson, and demanding cora, his assassin, that he, too, might be hanged. military aid was called to the defense of the jail and its prisoners and after a while the multitude dispersed, leaving all quiet. casey and cora turned over to vigilance committee. sunday, may 18th, a deputation of the committee was delegated to call at the door of the jail and request the sheriff to deliver up the prisoner, casey. upon arriving at the door three raps were made. sheriff scannell appeared. the delegation desired him to handcuff the prisoner and deliver him at the door. without hesitation, the sheriff repaired to the cell of casey and informed him of the request of the vigilantes. the sheriff, after going through some preliminaries, brought the prisoner to the front door of the jail and delivered him into the hands of the committee. my company was stationed directly across the street lined up on the sidewalk. immediately in front of us was a small brass cannon, which a detachment had shortly before secured from the store of macondray & co. it was the field piece of the first california guard. it was loaded, and alongside was the lighted match, and all was in readiness should any resistance be offered. other companies were stationed so as to command the entire surroundings. we marched from the general headquarters of the committee at 41 sacramento street (fort gunnybags), one block from the water front, up that street to montgomery, thence to pacific and along kearny to the jail, which was situated on the north side of broadway, between kearny and dupont streets. other companies came via stockton and dupont streets[2]. casey was then ironed and escorted to a coach in waiting and, at his request, mr. north took a seat beside him; wm. t. coleman and miers f. truett also riding in the same conveyance. another conference was held with the sheriff, requesting the prisoner, charles cora, who had murdered general richardson, to be turned over to the committee. scannell declined and asked time to consider. the committee gave the sheriff one hour in which to decide. in less than half that time the sheriff appeared at the door of the jail and turned cora over to the committee. the committee reached the rooms on sacramento street about 2 o'clock. casey was placed under guard in a room above headquarters. cora was also removed to the committee's rooms in the same manner as casey, the committee having to go back to the jail for the second time. about three hundred men remained on guard at the committee rooms after their removal there. fort gunnybags. our headquarters and committee rooms were at the wholesale liquor house of truett & jones, no. 41 sacramento street, about a block from the water front, and embraced the block bounded by sacramento, california, front and davis streets, and covered by brick buildings two stories high. the name "fort gunnybags" was ascribed to it on account of the gunnybags filled with sand which we piled up in a wall some six feet through and about ten feet high. this barricade was about twenty feet from the building. guards were stationed at the passageways through it as well as at the stairs and committee by the members of the monumental fire engine company no. 6, stationed on the west side of brenham place, opposite the "plaza." our small field pieces and arms were kept on the ground floor, and the cells, executive chamber and other departments were on the second floor. may 19th found mr. king still suffering from his wound, but no great alarm was felt as to his condition. death of james king, of william. may 20th mr. king's condition took a turn for the worse, and at 12 o'clock he was sinking rapidly, being weakened from the probing and dressing of the wound. he passed away. sorrow and grief were shown by all. he left a widow and six children. he was born in georgetown, d. c., and was only 34 years old. trial of casey and cora. casey and cora were held for trial may 20th, having been supplied with attorneys and given every opportunity to plead their cases. the committee sat all night and took no recess until the next morning when the trials were ended. the verdict of "guilty of murder" was found in each case and they were ordered to be executed friday, may 23rd, at 12 o'clock noon. while the trial was going on mr. king passed away[3]. hanging of casey and cora. the committee, for fear that an attempt might be made to rescue casey and cora, arranged their companies, which numbered three thousand men and two field pieces, cleared the streets in the immediate vicinity and had had constructed a platform from out of the two front windows. these platforms were hinged, the outer ends being held up by cords which were fastened to a projecting beam of the roof, to which a rope had been adjusted for the purpose of hanging. arabella ryan or belle cora was united in marriage to charles cora just before the execution. about one o'clock both casey and cora, who had their arms tied behind them, were brought to the platform and with firm steps stepped out upon them. casey addressed a few remarks, declaring that he was no murderer, and weakened at the thought of his dear old mother. he almost fainted as the noose was placed around his neck. cora, to the contrary, said nothing, and stood unmoved while casey was talking, and apparently unconcerned. the signal was given at twenty minutes past one o'clock and the cord cut, letting the bodies drop six feet. they hung for fifty-five minutes and were cut down and turned over to the coroner. we, the rank and file of the vigilance committee, were immediately afterwards drawn up in a line on sacramento street, reviewed and dismissed after stacking our arms in the committee room, taking up our pursuits again as private citizens[4]. yankee sullivan. james (or yankee) sullivan, whose real name was francis murray, had been taken by the vigilance committee and was then (may 20th, 1856), in confinement in the rooms of the committee. he was very pugilistic and had taken an active part in ballot-box frauds in the several elections just previous. he had been promised leniency by the committee and assured a safe exit from the country, but he was fearful of being murdered by the others to be exiled at the same time. he experienced a horrible dream, going through the formality and execution of hanging. he called for a glass of water, which was given him by the guard, who at the same time endeavored to cheer him up, and when breakfast was taken him at 8 o'clock that morning he was found dead in his bed, he having made an incision with a common table knife in his left arm near the elbow, cutting to the bone and severing two large arteries[5]. "law and order" party. on the 2nd of june, 1856, governor j. neely johnson having declared the city of san francisco to be in a state of insurrection, issued orders to wm. t. sherman to enroll as militia, companies of 150 men of the highest standard and to have them report to him, sherman, for duty. the response was light and the order looked upon as a joke and little or no stock taken in it. so on the 7th sherman tendered his resignation as major general, claiming that no plan of action could be determined upon between himself and the governor. the action taken by the governor in this move was by virtue of the constitution of the state, his duty to enforce the execution of the laws, he claiming that the vigilance committee had no right to arm and act without respect to the state laws. terry and hopkins affair. on the 2nd of june, 1856, the city was in great excitement at an attempt by david s. terry to stab sterling a. hopkins, a member of the committee. terry was one of the judges of the supreme court. hopkins and a posse were arresting one rube maloney when set upon by terry. hopkins was taken to engine house no. 12 where dr. r. beverley cole examined and cared for his wound which was four inches deep and caused considerable hemorrhage. the blade struck hopkins near the collar bone and severed parts of the left carotid artery and penetrated the gullet. terry and maloney at once fled to the armory of the "law and order party" on the corner of jackson and dupont streets. the alarm was at once sounded on the bell at fort gunnybags and in less than fifteen minutes armed details were dispatched to and surrounded the headquarters of the "law and order party" where terry had taken refuge, and in less than half an hour had complete control of the situation, and by 4:15 o'clock in the afternoon terry and maloney and the others found there had been taken to the committee rooms as well as the arms (a stand of 300, muskets) and ammunition. about 150 "law and order" men together with about 250 muskets were also taken from the california exchange. several other places were raided and stripped of their stands of arms. terry was held by the vigilance committee until august 7th and charged with attempt to murder. mr. hopkins recovered and terry, after a fair and impartial trial, was discharged from custody, though many were dissatisfied at his dismissal and claimed that he should have been held. terry was requested to resign and resigned his position as judge of the supreme court. duel between terry and broderick. in 1859 judge terry had an altercation with united states senator daniel c. broderick which caused the former to challenge the latter to a duel. this duel which was with pistols was fought september 13, 1859, near lake merced, near the present site of the ocean house. it resulted in broderick's death, whose last words were, "they killed me because i was opposed to a corrupt administration, and the extension of slavery." terry was indicted for his duel with broderick, as it came in conflict with the state laws. the case was transferred to another county, marin, and there dismissed. during the civil war terry joined the confederate forces, attained the rank of brigadier-general, and was wounded at the battle of chickamauga. at the close of the conflict he repaired to california and in 1869 located at stockton and resumed the practice of the legal profession. some years later he became advocate for a lady who was one of the principals in a noted divorce suit. subsequently she became his wife. legal contention arising from the first marriage caused her to appear before the circuit court held in oakland, over which stephen j. field, associate justice of the united states supreme court, presided. terry and field, shooting of terry. in open court the justice proceeded to read the decision. as he continued, the tenor was manifestly unfavorable to mrs. terry. she suddenly arose and interrupted the reading by violently upbraiding field. he ordered her removal from the judicial chamber. she resisted, and terry coming to his wife's assistance, drew a knife and assaulted the bailiffs. he was disarmed, and together with his wife, overpowered and secured. the court of three judges sentenced mrs. terry to one month, and her husband to six months imprisonment, which they served in full. justice field returned to washington, and the next year in fulfillment of his official requirements came again to california. he had been informed that terry uttered threats of violence against his person, and therefore he was accompanied by a man employed by the government to act in the capacity of body-guard. on the journey from los angeles to san francisco, field and his companion, with other passengers, left the train to lunch at lathrop. terry and his wife, who had boarded the cars en route, also left the cars and shortly afterwards entered the same restaurant. a few minutes later terry arose from his seat, walked directly back of field and slapped or struck the venerable justice on the face, while he was seated. nagle, the guard who attended field, leaped to his feet and shot terry twice. terry fell and died instantly. this event occurred on the 15th day of august, 1889, not quite thirty years from the time he shot broderick. hetherington and randall. on the evening of july 24, 1856, the vigilance committee had another case on their hands which called for immediate action. joseph hetherington, a well-known desperate character with a previous record, picked a quarrel with dr. randal in the lobby of the nicholas hotel. they both drew their revolvers and shot: after the second report the doctor dropped and hetherington, stooping, shot again, striking the prostrate form in the head, rendering the victim almost unconscious. he died the next morning. the shooting was brought about through randal's inability to repay money borrowed from hetherington on a mortgage on real estate. hetherington, who was captured by the police, had been turned over to the committee by whom he was tried, the committee going into session immediately after the shooting, found him guilty of murder and sentenced him to be hanged. we were again called out on the 29th and were stationed so as to command the situation. this time a gallows was erected on davis street, between sacramento and commercial. another man, philander brace by name, was also to be hanged at the same time, and at about 5:30 in the afternoon of july 29th they were both conveyed in carriages, strongly guarded, to the execution grounds. hetherington had previously proclaimed his innocence, claiming that the doctor had shot first and he had simply shot in self-defense, but his previous record was bad, he having killed a doctor baldwin in 1853 and had run a gambling joint on long wharf, and eye witnesses claimed that he not only provoked but shot first. brace was of a different nature, he was a hardened criminal of a low type. the charge against him being the killing of captain j. b. west about a year previous, out in the mission, and of murdering his accomplice. he had also confessed to numerous other crimes. hanging of hetherington and brace. thousands of people were on the house-tops and in windows and on every available spot from which a view of the gallows was to be had. the prisoners mounted the scaffold, being accompanied by three vigilance committee officers who acted as executioners and a rev. mr. thomas. after the noose had been adjusted, hetherington addressed the crowd, claiming to be innocent, and ready to meet his maker. brace, every once in a while, interrupted him, using terrible and vulgar language. the caps were adjusted, the ropes cut and the two dropped into eternity. they were left hanging 40 minutes, after which the bodies were removed by the committee to their rooms and afterwards turned over to the coroner. they were both young men--hetherington 35, a native of england, had been in california since 1850, while brace was but 21, a native of onandaigua county, n. y. ballot box stuffing. the ballot boxes that had been used by casey and his ilk were of a peculiar construction, having false slides on the sides and bottoms that could be slipped out and thereby letting enough spurious votes drop into the box to insure the election of their man or men. it was claimed that nearly the entire set of municipal officers then holding office had secured their election through this man. they were afterwards requested by the vigilance committee to resign their offices, but at the first election that was held on november 4th, they were all displaced by men selected by a new party (the people's party) that was the outcome of the efforts of the vigilance committee. billy mulligan. william mulligan was shipped out of the state on the steamer "golden age" on june 5th, 1856, with instructions never to return under penalty of death. however, after three or four years of absence he returned to san francisco. he was often seen on the street, but was not molested until sometime in the summer of 1862 when he got a crowd of boys around him on the crossing of prospect place and clay street, between powell and mason streets. it was not long before he had trouble with them and shot into the crowd, injuring a boy, however, not seriously. the police were soon on the ground, but mulligan had made his way into the old st. francis hotel on the corner of clay and dupont streets which was vacant at that time. the police came and they were directed to the building where billy could be found. when the police entered they found they were half a story below the floor of a very large room in the second story. billy was called upon to surrender. he told them that the first one that put his head above the floor would be a dead man, and knowing the desperate character they were dealing with, they thought best to retire and get instruction from the city attorney, who told them they had a right to take him dead or alive, whereupon they proceeded to arm themselves with rifles and stationed themselves on the second floor of a building on the opposite side of the street from the st. francis on dupont street, and when mulligan was passing one of the windows the police fired. mulligan dropped to the floor, dead as a door nail. he was turned over to the coroner and has not been seen on the streets since. charles p. duane is another one of twenty-seven men who were shipped out of the state and returned. he shot a man named ross on merchant street, near kearny. i do not remember whether the man lived or died, or what became of duane. black list. from the book entitled "san francisco vigilance committee of '56," by f. w. smith, i quote the following, with some corrections and alterations: "i am informed by an ex-vigilante that the committee roll call of '56, just before its disbandment, numbered between eight and nine thousand. in concluding our history of this society, we will give the names and penalties inflicted on those who came under its eye during the latter year; whose conduct was so irreparably bad that it could not be excused. those who suffered the death penalty did so in expiation for lives they had taken. the names of these culprits are familiar to the reader. we also give the names of those who were required to leave the state; all of whom, in the archives of the vigilantes, fall under the head of the black list:" james p. casey, executed may 22nd, 1856. charles cora, executed may 22nd, 1856. joseph hetherington, executed july 29th, 1856. philander brace, executed july 29th, 1856. yankee sullivan (francis murray), suicided may 31st, 1856. chas. p. duane, shipped on "golden age," june 5th, 1856. william mulligan, shipped on "golden age," june 5th, 1856. woolley kearney, shipped on "golden age," june 5th, 1856. bill carr, sent to sandwich islands, june 5th, 1856, bark "yankee." martin gallagher, sent to sandwich island, june 5th, 1856, bark "yankee." edward bulger, sent to sandwich islands, june 5th, 1856, bark "yankee." peter wightman, ran away about june 1st, 1856. ned mcgowan, ran away about june 1st, 1856. john crow, left on "sonora," june 20th, 1856. bill lewis, shipped on "sierra nevada,"--june 20th, 1856. terrence kelley, shipped on "sierra nevada," june 20, 1856. john lowler, shipped on "sierra nevada," june 20th, 1856. william hamilton, shipped on "sierra nevada," june 20th, 1856. james cusick, ordered to leave but refused to go, and fled into the interior. james hennessey, ordered to leave, but fled to the interior. t. b. cunningham, shipped july 5th, 1856, on "john l. stephens." alex. h. purple, shipped july 5th, 1856, on "john l. stephens." torn mulloy, shipped july 5th, 18,56, on "john l. stephens." lewis mahoney, shipped july 5, 1856, on "john l. stephen,." j. r. maloney, shipped july 5th, 1856, on "john l. stephens." dan'l aldrich, shipped july 5th, 1856, on "john l. stephens." james white, shipped july 21st, 1856, on "golden age." james burke, alias "activity," shipped july 21st, 1856, on "golden age." wm. f. mclean, shipped july 21st, 1856, on "golden age." abraham kraft, shipped july 21st, 1856, on "golden age." john stephens, shipped september 5, 1856, on "golden age." james thompson, alias "liverpool jack," shipped september 5, 1856, on "golden age." many others either left of their own volition or under orders to leave the state. bulger and gallagher who had been shipped out of the country on june 5th returned to san francisco. in their haste the committee had failed to read their sentences to them and they were not aware of the penalty of returning. they were again shipped out of the country and ordered not to return under penalty of death. there were 489 persons killed during the first 10 months of 1856. six of these were hanged by the sheriff, and forty-six by the mobs, and the balance were killed by various means by the lawless element. "fort gunnybags" 1903. on march 21, 1903, the california historic landmarks league placed a bronze tablet on the face of the building at 215 sacramento street that had formerly been the headquarters of the vigilance committee of 1856, inscribed as follows: "fort gunnybags was situated on this spot, headquarters of the vigilance committee in the year 1856." many of the old committee and pioneers participated in the ceremonies. the old monumental bell which had been used those stirring days was also in evidence and pealed out its last "call to arms." closing chapter of vigilance committee. as a closing chapter to the history of the vigilance committee of 1856, or at least the immediate cause of its coming into existence, there was sold at public auction in san francisco on the evening of january 14th, 1913, the very papers that james king, of william, had had transcribed from the records in new york and published in his paper the "evening bulletin" showing the record of casey's indictment, imprisonment and pardon, the publication of which he, casey, resented by shooting king. in addition to these documents were sold many of the books, papers, etc., of as well as other books and papers relating to the vigilance committee that had been collected together by mr. c. j. king, a son of james king of william. vigilance committee work in 1849, '50 and '51. while there has been a great deal said about the vigilance committee in california in 1856, there has not been much said about it in '49, '50 and '51. that the reader may know what was going on up to that time, i must now draw largely from previously published accounts for my information, for a condensed statement. on the 30th day of january, 1847, mr. washington a. bartlet became the first alcalde of san francisco, under the american flag. at this time the population numbered 500, including indians. during '47 and '48 it increased to two thousand, and by the last of july, 1849, it was over five thousand. the condition of the town at this time was terribly demoralized, gambling, drunkenness and fights on every corner. about this this came a class of offscourings of other countries and the curses to california. it was during this dreadful state of uncertainty that the famous vigilance committee of 1851 was organized, and it now became known that there was an organized committee for the purpose of dealing with criminals. it was about this time the case of john jenkins came up and he was arrested and tried by the committee, and condemned to be hanged. he was then hanged until he was dead. the tragic fate of jenkins, and the determination manifested to deal severely with the villains had the effect of frightening many away. the steamers to stockton and sacramento were crowded with the flying rascals. the sydney coves and the more desperate characters remained. at this, time the city served notices on all persons known to be vicious characters to leave the city at once, on fear of being forcibly expelled to the places whence they had come. this was rigidly enforced and had a very wholesome effect. the next one to come before the committee was james stuart, who was transported from england to australia for forgery. it is not worth while to go into details on account of this man, for he confessed to crimes enough to hang him a dozen times. on the morning of july 11th, 1851, the taps on the bell of the monumental engine house summoned the entire vigilance committee. the prisoner was then allowed two hours grace, during which time the rev. dr. mills was closeted with him in communion. after the expiration of the two hours, the condemned was led forth under a strong guard. he was taken down battery street to the end of the market street wharf, where everything had been previously arranged for the execution. very soon after the procession reached the spot the fatal rope was adjusted and the condemned hoisted up by a derrick. the hanging of stuart seems to have been a very bungling piece of work, but this man's life was given to evil doing, and the great number of crimes confessed and committed by him would seem to say that he was not deserving of any more sympathy than which he got. this was a sorry spectacle, a human being dying like a dog, but necessity, which dared not trust itself to feelings of compassion, commanded the deed, and unprofitable sentiment sunk abashed. two more criminals and i am done with rough characters--samuel whittaker and robert mckenzie, who had been arrested and duly and fairly tried by the committee. they confessed their guilt and were condemned to be hanged. their names being familiar and repulsive to all decent citizens. they were hanged side by side in public view on august 24th, 1851. the sight striking terror to the hearts of other evildoers, who were impressed by these examples that they could no longer be safe in san francisco, such as had been suspected and notified by the committee, quickly left the city; they, however, found no shelter in the interior. this brings me to where i took up the vigilance committee of 1856. san francisco in 1847. in view of the great and growing importance of the town of san francisco (yerba buena), situated on the great bay of the same name, we will give our readers a few pertinent and fully reliable statements. "the townsite, as recently surveyed, embraces an extent of one and one-half square miles. it is regularly laid out, being intersected by streets from 60 to 80 feet in width. the squares are divided into lots of from 16 1/2 varas (the spanish yard of 33 1/3 inches) front and 50 deep, to 100 varas square. the smaller and more valuable of these lots are those situated between high and low water mark. part of these lots were sold in january last at auction, and brought from $50 to $600. the established prices of 50 and 100 vara lots are $12 and $25. san francisco, last august, contained 459 souls, of whom 375 were whites, four-fifths of these being under 40 years of age. some idea of the composition of the white population may be gathered from the following statement as to the nationality of the larger portion: english, 22; german, 27; irish, 14; scotch, 14: born in the united states, 228; californians, 89. previously to the first of april, 1847, there had been erected in the town 79 buildings, nearly all of which had been erected within the two years preceding, whereas in the next four months 78 more had been constructed. there can be no better evidence of the advantages and capabilities for improvement of the place than this single fact."--st. louis "reville," february 12, 1848. john a. sutter. i remember standing on the bank of the sacramento river, talking with captain sutter, in the fall of '49; he remarked, "i have moored my boats in the tops of those cottonwood trees, where the driftwood showed not less than 25 feet from the ground." "the plaza." portsmouth square or the "plaza," as we then called it, was located in the hub of the old settlement on the cove, and occupied half a block to the west of kearny street, between clay and washington. it was the scene of all public meetings and demonstrations. it was named after the old sloop-of-war "portsmouth," whose commanding officer, captain montgomery, landed with a command of 70 sailors and marines on july 8, 1846, raised the american flag here and proclaimed the occupancy of northern california by the united states. a salute of twenty-one guns was fired from the "portsmouth" simultaneously. on the east side of kearny street, opposite the plaza, was the "el dorado," a famous gambling saloon, adjoining which was the parker house, afterwards the jenny lind theatre, while on the north side of washington street stood the bella union theatre, and on the west on brenham place was the old monumental fire engine house whose fire bell played so prominent a part in the days of the vigilantes. in the spring of 1850 the writer was in san francisco, and made the acquaintance of captains egery and hinkley, who were the owners of the pacific foundry. they being in need of some molding sand for small work, i consented to go to san jose and get some for them. i engaged mr. watts, who had a little schooner that would carry about six tons. he was captain and i was super-cargo, and we made the trip down in about one day. i found what i wanted on the banks of a slough, loaded the schooner and returned to san francisco. while in san jose i came across two young ladies. i had a very pleasant chat with them. i learned later on that they were the daughters of mr. burnett, who became the first governor of california. i heard no more of them until 1910, when i was on my way to monterey to attend the unveiling of the sloat monument. i enquired for them of a man in the depot, and he told me that one of them was lying over there, dead (pointing in the direction), i could not help expressing my sorrow. the captain landed me and my cargo in san francisco in good shape, without any mishap on the voyage. i delivered the cargo in good order and was well paid. early realty values. in 1850 i was in san francisco and by chance was on clay street where the city was selling 50-vara water lots in the neighborhood of sansome, battery and front streets, at auction, $25 for inside lot, and $30 for corner lots. i stood there with my hands in my pockets, and gold dust and gold coin on my person that was a burden to me and bought not a single lot. there were many others who were in the same fix that i was. you may say, "what a lot of fools," and i would say, "yes." here is another little joke: sometime before this i made a deposit of a sack of gold dust with adams & co.'s express in san francisco. when the time came for me to leave the city, i went into the office to draw my sack of dust. the clerk brought it forward at once and i said, "how much for the deposit?" he said, "five dollars." then i said, "you will have to take it out of the sack as i have no coin." he said, "are you going to sell it?" "yes," i said. "well," said he, "you can sell it at the counter on the other side, and pay that clerk." "all right," said i, and sold my dust. it amounted to $425. he counted out the $25 in small change, and slipped it out onto the counter. i let it lay there until he had counted out the rest. a deal in "slugs." at this time the $50 slugs were in circulation. he counted out the $400 in a pile and took hold of the bottom one and set the pile over to my side of the counter, as much as to say, "there is your money." i said to him "there is five dollars coming to you for the deposit of the dust." he picked the five dollars out of the change on the counter. i picked up the balance of the change and put it into my pocket. i also picked up the pile of slugs by the bottom one in the same way that he handed them to me and dropped them into an outside pocket of my coat without counting them, and started for the four o'clock boat for stockton. on my way to the wharf i thought that pile of slugs looked large and i took them out and counted them. i found that i had twelve instead of eight. i turned around and went back to the office, to the same counter and clerk, and said to him, "do you rectify mistakes here?" he said, "not after a man leaves the office." i said, "all right," and left the office and made the stockton boat all right. but there were no insane asylums there at that time. harry meiggs. in the early fifties honest harry meiggs (as he was called) was one of our most enterprising, generous and far-seeing citizens. his first venture was in the banking business. it was while engaged in this pursuit that he gained the name "honest harry meiggs." his banking business was good for a year or so and then he conceived the idea of building a wharf at north beach. it commenced at francisco street between powell and mason streets. it extended north several hundred feet and was used for a landing place for lumber in the rough, to be conveyed to his mill on the south side of francisco street near powell. in order to accommodate the demands of trade an "l" was extended eastward from the end of his wharf. about this time he got into financial troubles. in october, 1854, he departed with his family for chili between two days and passed out through the golden gate, and no more was heard of him for a long time. it finally became known that he was in peru, engaged in building bridges for that government. he took contracts and was very successful and became well off in a few years. he sent an agent to san francisco to hunt up all his creditors and pay them, dollar for dollar with interest. i knew a widow in san francisco in the late '60s by the name of rogers who was a creditor, who married a man by the name of allen; i think that was in 1867. they went to peru and saw mr. meiggs. he paid all she demanded, about $300. allen returned and reported to the children that their mother died while in peru of fever, but they never got a cent of the money. mr. meiggs was born in new york in 1811 and died in peru in 1877. san francisco's first town clock. the first public clock ever erected in san francisco was placed on the frontage of the upper story of a four-story building at nos. 425-427 montgomery street, that was being built by alexander austin. this was in 1852. the clock was ordered by him and brought via the "panama route" from new york, arriving in san francisco on the steamer panama. mr. austin occupied the ground floor as a retail dry goods establishment and it was one of the first, if not the first, of any prominence in the city. he afterwards moved to the southeast corner of sutter and montgomery streets and continued there until 1869 when he was elected city and county tax collector. the clock remained on the building until january 20th, 1886, when the then owner of the building, mr. d. f. walker, had it removed so as to arrange for the remodeling of the interior. mr. w. h. wharff, the architect in charge of the remodeling, purchased the clock and retained it in his possession until november 24, 1911, when he presented it to the memorial museum of the golden gate park, where the curator, mr. g. h. barron, placed it in the "pioneer room." it is to be seen there now. admission day flag. here is an interesting fact that has never been given publicity before, and i simply relate it as told me by sarah connell, the daughter of the man that carried it. "mr. d. s. haskell, manager of the express and banking business of adams & co., conceiving the patriotic idea of having an american flag carried in the division of which his firm was to be a part, endeavored to procure an american flag, but found that nothing but flags of the size for ships or poles were to be had. he then started to find material from which to have one made, but in this he was unsuccessful also. so, undaunted, he at last found a dressmaker who lived somewhere in the neighborhood of washington and dupont streets, who found in her 'piece-bag' that she had brought from new york, enough pieces of silk and satin (they were not all alike) to make a flag three feet by two feet. he was so delighted with her handiwork that he gave her a $50 slug for her work[6]. "thus it was that adams & co. were able to parade under the stars and stripes in that memorable parade of october 28, 1850, in celebration of the admission of california as a state into the union. after the parade mr. haskell presented the flag to their chief messenger, my father, mr. thomas connell, and it has been in our possession since." mr. thomas connell. mr. connell was one of the few of the early comers who never went to the mines, though of course, that was his intention. he started, but somewhere on the contra costa side--it was all contra costa then--he fell ill of malaria fever. there was no one with time to bother with a sick man and he was unable to proceed or return so he expected to end his life there. when the disease abated he concluded that he had no desire to penetrate further into the wilderness, so he turned his face towards san francisco again. he was a shipwright by trade and though there was nothing doing in his line, he saw the possibilities of a boating business when there were no wharves, piers or other accommodations for freight or passengers. one of the curious uses to which his boats were put was the carrying of a water supply. they were chartered by a company and fitted with copper tanks which were filled from springs near sausalito. on this side of the bay the water was transferred to wagons like those now used for street sprinkling and the precious fluid was supplied to householders at a remunerative rate of twenty-five cents a pail, every family having one or two hogsheads fitted with a spigot to hold the supply. mr. connell also carried the first presidential message received in the state, rowing up the sacramento river day and night in his own boat to deliver the document at the capitol, and for sake of the sentiment he also carried the last one received by steamer as far as oakland, whence the delivery was completed by train. uncle phil roach, happy valley. uncle phil roach, editor and founder of the "san francisco examiner," lived on clementina street near first. he was one of those good natured, genial old men that everybody liked, was at one time president of the society of california pioneers (1860-1), and later elected to the state legislature. he afterwards acted as administrator of the blythe estate, but died before its final settlement. the place where he lived was called happy valley and the only entrance to it was at the intersection of market, bush and first streets, this crossing being at the east end of a sand dune about 30 feet high, extending westerly about half a mile. at this time the waters of the bay came up to the corner of market and first streets, but it was not long before this, and many other sand dunes, disappeared, being scraped and carted off to fill the nearby mud flats. there was at this time a little wharf 50 feet wide extending out into the cove from the foot of clay street at davis 1550 feet to a depth of 35 feet. it was called "long wharf." to the north of this wharf the water lapped what is now sansome street for a block (to washington street) and followed the shore line to the corner of jackson and montgomery streets. early water supply. my mind drifts back to the days when our water system was dependent in part upon a well near the corner of market and first streets. this was in 1855 when the population of san francisco was between 40,000 and 50,000. i was then living on third street near mission and got my supply of water from a man named somers who conveyed water about the city to his various customers in a cart. i took water from him for about three years at the rate of $1.50 per week. many's the time i have gone out to the mission hunting rabbits. all that part of the city was as wild as it ever was, sand dunes and low grounds. about three years later a company built a plank toll road on mission street from some point near the water front to the mission, a distance of about three miles. this made an opening through the sand dunes and that section filled up rapidly. postoffice. the postoffice was situated on the lot at the northwest corner of washington and battery streets. it was built in 1855. previous to the erection of this building the pioneers obtained their mail from the postoffice on clay street and waverly place, and on clay street near kearny opposite the plaza (portsmouth square), and afterwards on clay and kearny streets. the great fire of 1852 destroyed these places. to avoid confusion and facilitate the delivery of the mail on the day the steamer arrived, long lines were formed of people who expected letters from home. it was a frequent occurrence to see the same people standing in place all day waiting their turn, the delivery windows being arranged alphabetically. oft-times persons would sell their places for as much as ten and even twenty dollars. john parrott. john parrott, the banker, was a good natured man and could take a joke with much grace. here is one: "a broker came to him one day and said: 'mr. parrott, i want to borrow one thousand dollars on a lot of hams in the warehouse.' 'all right,' said mr. parrott. it went on for some time and mr. parrott looked around for his ham man, but could not find him, but he found the hams and the greater part of the weight of them was maggots. mr. parrot was very much disgusted. time went on for a number of years and another man came to him to borrow money on hams in the warehouse. mr. parrott said to him, shaking his finger before the man's face, 'no more hams, no more hams,' and walked off." it was a standing joke on the street for a long time. this was late in the '50's. in 1858-59 i built two very good houses on the south side of howard street near fourth. i lived in one of them about two years and then bought on the north side of taylor street between clay and washington streets and resided there 17 years. pony express. i was present when the first messenger mounted his pony to start on the first trip across the continent. he started from kearny street between clay and washington, opposite the "plaza"--this was on the 3rd of april, 1860. it was a semi-weekly service, each rider to carry 15 pounds of letters--rate $5 per half ounce. stations were erected about 25 miles apart and each rider was expected to span three stations, going at the rate of eight miles per hour. the first messenger to reach san francisco from the east arrived april 14, 1860, and was enthusiastically received. time for letters from new york was reduced to 13 days, the actual time taking from 10 1/2 to 12 days. the best horses and the bravest of men were necessary to make these relays, over the mountains, through the snow and across the plains through the indian-infested country. the distance from san francisco to st. joseph, mo., was 1996 miles and the service was established by majors, russell & co., of leavenworth, kansas. now i will go back a few years and pick up a little experience that was scattered along the road. in 1861 i took my family around the bay for an outing in a private carriage. we went through san mateo, redwood city, santa clara, san jose, hot springs, hayward, san leandro, oakland and back to san francisco by boat. we enjoyed the trip very much without any mishap to mar its pleasure. a venture in flour. about this time i bought out loring & mason who were in the retail grocery business on the corner of taylor and clay streets. this was another venture in which i had never had any experience, "but," said i, "here goes for what there's in it." a few days later there came a man in his buggy from over the hill with whom i was very little acquainted. he had charge of the empire warehouse in the lower part of the city. his name was mr. garthwait. he called at my store and said, "woolley, i have a lot of oregon standard flour in the warehouse. the storage is paid for one month, and i will sell you what you want for $6 and three bits a barrel, and you can take it out from time to time as you like." after looking the situation over for a few minutes i came to the conclusion that i could not buy any lower. i said, "well, i will take one hundred barrels." "all right," said he, and drove off. in a few days i went down and paid for it. about the middle of december 1861 it commenced to rain in the valleys and a few days later it rained in the mountains throughout the state, and the snow commenced to melt and that, together with the rain in the valleys, started the rivers to rising, and as the rivers went up so did the flour. the water gauge at sacramento indicated feet and inches in going up while flour indicated dollars and cents in going up. on the first of january, 1862, it was still raining and the water coming down in a greater volume. communication was cut off from all parts of the country except by water. the legislature was in session that winter and was obliged to adjourn and go to san francisco to finish its labors. in order that my readers may adequately realize the greatness of this flood it is no more than fair to say that the river boats from san francisco went up j and k streets in sacramento city and took people out of the second-story windows. now, then we will call this high-water mark and flour $10 a barrel and going up. during this time i was letting my customers have what they wanted at the quotation price. it continued to advance about one dollar per day until it reached sixteen dollars per barrel. at this time i had very little left and it all went at that price. very soon after this flour came in from oregon and the price went down, as well as the water, and the market assumed a lower level and business went on as usual. it must be remembered that all transportation at this time was either by water or highway. a venture in oil. in this year was the beginning of the civil war and for the benefit of those who came into active life later on i will give them a little of my experience in a small way. at the time i purchased the store of which i have spoken i took over a standing contract they had with a firm in boston to send them a specified amount of coal oil around cape horn, as near six weeks as any vessel would be leaving for san francisco. i took what was on the way at that time and the shipments were continued to me. at this time it took from sixty to seventy days to get answers to letters from the east. time and business go on. we had on an average of about two steamers a month from new york with the mails. in 1862 the war tax and stamp act came in force. it was high and quite a hardship for some but everybody paid it cheerfully and with a good grace, and felt that they were getting off easy. about this time greenbacks came into circulation as money. it was legal tender and you could not refuse it. it made a great deal of hard feeling on many occasions but after a long time it set settled down to a premium on gold, which fluctuated from day to day. finally the premium on gold was so high that currency was only fifty cents on a dollar, that is, one dollar in gold would buy two dollars in currency. on account of this many debtors would buy currency and pay their creditors with it. this was considered very crooked on the part of the debtor. i myself was a victim to some extent. the "evening bulletin" exposed a great many men by publishing their names but by so doing it made enemies and it did not last long. all bills rendered from this time on were made payable in united states gold coin. my coal oil cost me fifty cents per gallon in boston, payable in currency. the freight was also payable in currency. now my readers will readily see that my coal oil cost me a little over twenty-five cents per gallon laid down in san francisco. about 1863 there was an unusual demand for coal oil and it was scarce and there was very little on the way around cape horn, consequently the market price went up very rapidly until it reached $1.50 and $1.75 per gallon. the result was that i sold all i had in the warehouse and on the way around the horn. i kept what i had in the store for my retail trade. i do not look upon these speculations as any foresight of mine, but the change of circumstances and conditions of the market. flood of '61 and '62. the great flood of '61 and '62 was an occasion seldom known in the state. early in december '61 it commenced to rain in the valleys and snow in the mountains. in about two weeks it turned to rain in the mountains and valleys. the melting of the snow caused the rivers to rise very rapidly, the levees gave way and the waters flooded the city. the merchants commenced to put their goods on benches and counters, anywhere to keep them above water. families who had an upper story to their house moved into it. the water continued to rise until it reached a point so that the boats running between sacramento and san francisco went up j and k streets and took people out of the second story of their houses. the islands were all flooded and there was great suffering along the river besides the great loss of property. this flood did more damage than any high water since '49, but it was as an ill wind as far as it concerned my business, as i related previously. civil war times in s. f. in 1861 dr. wm. a. scott, pastor of the calvary presbyterian church, on the north side of bush street between montgomery and sansome streets, closed his services praying for the presidents of the union and of the confederate states. as soon as the benediction was pronounced mrs. thomas h. selby smuggled him out of the side door into her carriage and off to her home, fearing the congregation, which had became a seething mob, might capture and do him bodily harm. there was no demonstration at this time but the next morning there was to be seen in effigy dr. scott's form hanging from the top of the second story of a building in course of construction on the same block. it created some excitement for the time being, but it soon simmered out. lloyd tevis was getting badly frightened about this time for fear his home on the corner of taylor and jackson streets would be destroyed and appealed to the police for protection. he was told to go home and drape his home in black. this he did most effectually, the occasion being the assassination of president abraham lincoln. one of the exciting times in san francisco in 1865 was when a mob went to the office of "the examiner" on washington street near sansome and carried everything that was movable into the street and piled it up with the intention of burning. it seems that this paper was so pronounced in its sympathy with the cause of the confederacy that it aroused such a feeling as to cause drastic measures. the police authorities were informed of what was going on and colonel wood, captain of police, got a squad of policemen together and proceeded to the scene, but their movements were so slow that it was hard to tell whether they were moving or not and by the time they had reached the place the boys had carried off nearly everything that had been thrown out. i have two pieces of type now that i picked up in the street about that time. uncle phil roach, the editor, was in later years a member of the state legislature and tried to get an appropriation to cover his loss but his efforts were of no avail. president lincoln and gen. vallejo. president lincoln in the early part of the civil war called general vallejo to washington on business. while there general vallejo suggested to mr. lincoln that the united states build a railroad into mexico, believing as he said, it would be a benefit to both nations. mr. lincoln smilingly asked, "what good would it do for our people to go down to mexico even if the railroads were built? they would all die of fever and according to your belief go down yonder," with a motion of his hand towards the supposed location of the infernal regions. "i wouldn't be very sorry about that," remarked general vallejo coolly. "how so?" said mr. lincoln. "i thought you liked the yankees." "so i do," was the answer. "the yankees are a wonderful people, wonderful. wherever they go they make improvements. if they were to emigrate in large numbers to hell itself, they would somehow manage to change the climate." off to the nevada mines. uncle billy rodgers, from peoria, ill., was a fellow passenger of mine when crossing the plains in 1849 in the first division of the "turner, allen & co. pioneer mule train," consisting of 40 wagons, 150 mules and 150 passengers. he was a gambler before he left home and he gambled all the way across the plains. many people think that a gambler has no heart but this man was all heart. i knew him on one occasion, after visiting a sick man in camp, to take off his shirt and give it to the sick man and go about camp for an hour to find one for himself. we arrived in california on september 10, 1849. we parted about that time and i saw no more of him until the winter of '68 and '69 when i was on my way to white pine in nevada. we had to lay over a few days at elko, nevada, in order to get passage in the stage. as we had saddles and bridles we made an effort to get some horses and furnish our own transportation, and we had partly made arrangements with a man by the name of murphy. the day previous to this i overheard a conversation between two gentlemen sitting at the opposite end of a red hot stove. after they parted i approached the one left and said, "is this uncle billy?" he said, "yes, everybody calls me 'uncle billy' but i do not know you." i gave him my name and he was as glad to see me as i was to see him. we had a long and very pleasant chat. now to take up the line of march where i left off, i said, "hold on boys a little while i go and see a friend of mine." "all right," said they. i called on uncle billy and told him what we were doing and asked him what kind of a man murphy was, and his answer was, "he's a very good blacksmith," and repeated it two or three times, then said, "i am in a wild country and never say anything against anybody." i said, "that's enough uncle billy, i understand you thoroughly." i parted with him and we took the stage for hamilton and treasure hill. the last i heard of uncle billy was that he went north as an escort to some party and died there. uncle billy was a gambler all his life but not a drinker. his heart, his hand and his pocket were ever open and ready to respond to the relief of the distress of others. the writing of the above calls to mind another meeting with uncle billy of which i had lost sight, the date of which i cannot fix. i think it was in the first half of '60 i met him on the street in san francisco and our meeting was most cordial. we had a very pleasant street visit and he said to me, "woolley, i am going home, i shall take the next steamer for new york." i said to him, "how are you fixed, uncle billy?" he said, "i have eleven thousand dollars and i am going home." i congratulated him for his courage and good luck and wished him a pleasant voyage and a happy reunion with his old friends. about a week later i met uncle billy on the street again and said to him, "how is this uncle billy, i thought you were going home on the last steamer?" "yes," said he, "i thought so too; at the same time, i thought i would just step into a faro bank and win just enough to pay my passage home so that i would have even money when i got home. but instead of that i lost every dollar i had and i am going back into the mountains again. my readers know the rest." my friends this is only one of thousands who had the same experience. in 1868 "the girl i left behind me" went east on a visit of six months, taking with her our two children. in the fall of that year (1868) i went to white pine in nevada. it was a very cold trip for me and i came home in june "thawed out," sold out my grocery business and went into the produce commission business and followed it for ten years. martin j. burke. chief of police martin j. burke i knew very well in the early sixties. he was a genial and good natured man, well liked by everybody who knew him. i went to him one time with a curb bit for a bridle which would bring the curb rein into action with only one pair of reins. he was much pleased with it and used one for a long while. george c. shreve, the jeweler, had one also, as did charles kohler, of the firm of kohler & frohling, wine men of san francisco. he offered me $3000 for my right but i refused it. i applied for a patent only to find that another was about twenty years ahead of me. the donahue brothers. james, peter and michael donahue, the founders of the union iron works on first and mission streets, were three honorable, upright and just men. their works have since been removed to the potrero south of the third and townsend streets depot of the southern pacific co., and have of late passed into the hands of the united steel corporation. they are the largest of their kind on the pacific coast and stand a monument to their founders. james dunahue built and owned the occidental hotel on montgomery street between sutter and bush streets. peter donahue had the foundry and machine shop. at one time there was a little misunderstanding understanding between the two and they did not speak to each other for quite a while. during this time peter started to build an addition of brick on the north side of the foundry, got up one story and stopped. the two brothers met one day opposite the unfinished building and james said, "peter why don't you go on and finish your building?" peter replied, "i have not got money enough." "oh!" said james, "go ahead and finish it up and i will let you have all the money you want." 'from that time on they resumed their brotherly relations. peter went on in his business. his last venture was to build the petaluma railroad. both are now dead. michael went east early in the '50s and i knew very little of him. the take of a young bull. in 1870 i was in the produce commission business in san francisco and had a consignor in vacaville by the name of g. n. platt who had been presented with a fine young bull by frank m. pixley, who lived in sausalito, in the hills about two miles from town. mr. platt requested me to go and get the bull and ship him to vacaville, so i left next morning for sausalito. here i sought a man who could throw the lasso. after two hours i found the man i wanted. he had the mustangs and all the necessary equipment. we mounted and left for mr. pixley's residence where we were informed that the animal we wanted was somewhere in the hills with the other cattle. this was rather indefinite information, but we had to make the best of it and started out. our mustangs were well calculated for the occasion and we went over the hills like kites. finally we saw some cattle about a mile away and we made for them, found what we were in search of and made for him. he had horns about two inches long and was as light on his feet as a deer, and gave us a lively chase for about one hour. when we had him at the end of a rope he was determined to go just the opposite way than we wanted him to, but the man and the mustang at the other end of the rope had their way part of the time, so after about two hours hard fighting we succeeded in getting the little fellow down to the wharf where i found that there would not be another boat until after dark, so i concluded to wait and come over in the morning and ship him. the next thing was to dispose of the bull for the night. i said, "here is a coal bunker, we will put him in here." so after getting permission we started for it with the bull at one end of the rope and the vaquero at the other. the bull got a little the better of the man and went up the wharf full tilt with the vaquero in tow. the vaquero said, "there is a post on the wharf, the bull will go one side and i will go the other and round him up." but he got rounded up himself and left sprawled out on the wharf. this let the curtain down for the night and the bull went back to the hills with the rope. i returned to san francisco, went back in the morning, hunted up my man and mustangs, mounted and went into the hills again for my bull. this was a bully ride, i enjoyed it hugely, found our game about noon, picked up the rope with the bull on the end of it. he was still wild and full of resistance. he was the hardest fellow of his size that i ever attempted to handle. we made our way back to the landing, found the boat waiting. i called the boat hands to help put him on board. they came. i put one at his head, one on each side and one behind, and they all had as much as they wanted to keep control of him. finally he was made fast on the boat. while on our way to san francisco a lady from the upper deck called down to me, saying, "i will give you one hundred dollars for that bull." i said, "no, madam, you cannot have him, he is going into the country for business." after landing in san francisco i had to take him from one wharf to another so as to take the vacaville boat. i got a job wagon and the boat hands to take him out and tie the fellow to the hind axle of the wagon and then go by his side to the other boat. we fastened him securely to a stanchion and tagged to his destination. this relieved me of any further responsibility. i saw him about three years later in vacaville. he was a fine large fellow with all the fire in his eye that he had in his younger days. he had a large ring in his nose with a chain running from it to the end of each horn. now as my readers have had the bear story, and now the bull story, they will excuse me on those two subjects. admission day 1875. another event that might be of interest and worthy of reciting here on account of the many noted personages that partook in the celebration was the ceremonies connected with the 25th anniversary of the admission of california as a state into the union, september 9, 1875. the principal places of business, banks and offices were all closed and the buildings and streets were gaily bedecked with flags and bunting. the "bear flag" being in evidence everywhere. the shipping presented a pretty sight, the vessels seeming to outvie each other in their efforts to display the greatest amount of bunting and flags. one of the features of the day was the parade. the procession started from in front of the hall of the pioneers on montgomery street north of jackson, marched along montgomery to market, to eleventh, to mission and thence to woodward's gardens, where the exercises were held. when opposite the lick house, james lick, the honored president of the society, who reviewed the passing pioneers from his rooms, was given a rousing salute by each of the delegations as they passed. in this parade were members of the pioneer organizations from sacramento, stockton, marysville, vallejo, sonoma, marin, napa, mendocino, lake and placerville, as well as the parent organization of san francisco. the escort consisted of the 1st, 2nd and 3rd regiments, 2nd brigade, n. g. c., col. w. h. l. barnes, col. john mccomb and col. archie wason, respectively. brig. gen. john hewston, jr., commanding. marshal huefner and his aide followed. next came the several visiting pioneer organizations, then the carriages of invited guests, orator, reader and others. then the home society, turning out 427 strong. among the persons of note to have been seen and who wore the golden badge indicating that they had come here prior to 1849, were carlos f. glein, a. a. green, a. g. abel, george graft, w. p. toler, thos. edgar, g. w. ross, p. kadel, f. ballhaus, w. c. hinckley, h. b. russ, a. g. russ, owen murry, b. p. kooser, j. e. winson, arthur cornwall, e. a. engleberg, wm. jeffry, capt. hinckley, wm. huefner, thos. roche, f. g. blume, john c. ball and thomas eagar. among the others present were ex-gox. low, mayor otis, ex-sen. cole, chas. clayton, paul k. hubbs of vallejo, eleazer frisbie, l. b. mizner, niles searles, f. w. mckinstry and dr. o. m. wozencraft, a member of the first constitutional convention of california. in the sonoma delegation were nicholas carriger, ex-president and director; wm. hargrave, a member of the original bear flag party of 1846, mrs. w. m. boggs and mrs. a. j. grayson, who came here in 1846 in advance of the donner party. in the vallejo delegation were john paul jones donaldson, then 84 years old, who was on this coast as early as 1823 and who came back to reside here in 1848. wm. boggs and his delegation from sonoma were mostly all 1846 arrivals. james w. marshall, the man who discovered gold at coloma, about 45 miles northeast from sacramento, on january 19th, 1848, was with the sacramento delegation. he was then 67 years old, hale and hearty. mr. murphy, a survivor of the donner party, was with the marysville delegation. in addition to these were many others who have since become well known through their doings in the political arena and business world, and have made names for themselves that are honored and respected to this day and will ever find a place in this state's history. at the pavilion in woodward's gardens the literary services were held. d. j. staples, acting-president, delivered a stirring address, rehearsing the events of the past 25 years. dr. j. b. stillman then followed with an oration in which he spoke of the gold discovery in california, the effect upon the east of col. mason's report, the sudden influx of seekers of the "golden fleece" by sea and overland, of their hardships and endurance, and their experiences at the mines, etc., etc. mr. j. b. benton read a poem by mrs. james neall. the literary exercises were followed by a lunch and that by an entertainment of mixed character. billy emerson, ben cotton, billy rice, ernest linden, f. oberist, w. f. baker, j. g. russell and billy arlington of maguire's minstrel troupe, and w. s. lawton, capt. martin and l. p. ward, and the buisley family being among the entertainers. a balloon ascension followed the entertainment and during the day the "great republic" made an excursion around the bay. on an s. p. pay-car. in the summer of 1874 the paymaster of the southern pacific railroad company, major j. m. hanford, sent me an invitation to accompany him on the pay car through the san joaquin valley, to pay off the employees of the company. i was delighted to have an opportunity of going through the valley. at the appointed time i was on hand with two boxes of cigars, for i knew the major was likely to have some lively, good natured fellows with him, and i wanted to have something with me to help me along. now i must say something about this pay car, for it was a wonderful thing for me. it had the appearance on the inside of a hotel on wheels. at the rear end was a window through which the employees were paid; the depth of the room in which were the pay master and his two check clerks, was about the same as the width of the car. in it were the safe, rifles, shotguns, pistols, ammunition galore, with an opening into what was used as the dining room and berths, which would accommodate about 12 people. then came the cook's room on one side, with a narrow passageway on the other, into a small room in the front end of the car. this car was sixty feet in length and would make you think you were in a palace hotel on wheels. hank small, who had hands as big as a garden spade, was the engineer, with engine no. 96, which was always expected to pull the pay car. then there was a man by the name of olmsby who was one of the check clerks, young and very fine looking. then there was another man in the employ of the company by the name of gerald who was auditor for the company and had feet twice as large as any other man. now i want my readers to hold these three men in mind and their peculiarities for i shall refer to them later on. we are all now seated at the supper table, ten in all, and all railroad men except myself, with the dignified paymaster at the head of the table and his check clerk, olmsby, at the foot, who assumed the duty of saying grace by making motions around his chest and head, accompanied with these words, "bucksaws filed and set." this created some amusement and was the only time it occurred. the supper went on and the tables were cleared away, and then there was chatting and story telling. finally i started to tell a story and had gotten fairly into it when i suddenly discovered that every man in the room was sound asleep. it did not take me long to wake them up and have every man on his feet or on the floor. this did not last long, for i brought out one of my boxes of cigars and that settled the question right there. the next day we were in the san joaquin valley and continued the trip, paying the men as we went along, until we reached bakersfield. this was the end of the road at that time. then we returned to stockton, to sacramento, to red bluff, which was the end of the road in that direction at that time. from there we returned to san francisco, having had a very fine and agreeable trip, and each one returned to his former allotted position. i at this time was in the produce commission business on washington street near front street. inside of a year mr. olmsby left the railroad company, married and went to chico, in the sacramento valley, to run a stationery store. in 1876, the year that president hayes was elected, his wife gave birth to a child and olmsby sent a telegram to mr. hanford reading like this: "boy, born last night, has gerald's feet, hank small's hands, my good looks, and hollered for hayes all night." employ of the southern pacific. in 1884 i went into the employ of the southern pacific co. where i remained for twenty years. in 1904 on account of a rule of the company pertaining to long service and age, i was retired on a pension. i protested, they insisted, i accepted (because i could not help myself). the company was right and i appreciated the pension as they appreciated my services. in all those years i had no reason to complain of the company. shortly after my retirement from the employ of the southern pacific company i had sickness in my family and lost "the girl i left behind me," after fifty-three years of happy married life. this was in 1906, it is now 1913, and i am still behind, but i shall get there bye-and-bye and we will go on together side by side. sloat monument. on june 4, 1910, i went to monterey, calif., to attend the ceremonies of the unveiling and dedication of the sloat monument at the presidio of monterey. the idea, conception and putting through to a successful termination of the erection of this monument, was the work of, we might say, one man, major edwin a. sherman, v. m. w. it has taken the greater part of his time for twenty-four years. a large proportion of the money necessary was raised by subscription, but things lagged for a while, when the major applied to the u. s. congress for an appropriation of $10,000 to complete the work and got it. the monument was then finished under the supervision of lieutenant-colonel john biddle. at the dedication which was held under the auspices of the grand lodge of masons, col. c. w. mason, u. s. a., delivered the address of welcome, major sherman gave a brief sketch of the work and lt.-col. biddle made a few remarks. m. w. w. frank pierce, 33rd degree mason, officiated. the monument was erected to commemorate the raising of the american flag at monterey, the capital of california, july 7, 1846, by the forces under command of com. jonathan drake sloat, u. s. n. war had been declared between the u. s. and mexico. nob hill. in later days, about 1877, the term nob hill was applied to the crown of california street from powell street westward three blocks to jones street, on account of its having been selected by the railroad magnates of the state upon which to build their new homes, it being their desire to live together in their home life as well as in their business life. on the north side of california street commencing at powell was the residence of mr. david porter. this was torn down to make way for the fairmont hotel, ground for which was broken october 15, 1902. there were other small homes on other parts of the block but they too were removed and the entire block was used as a site for this famous hostelry. in the early days a long shanty 40 feet by 10 to 12 feet in width stood where the porter residence formerly stood. a man by the name of mcintire owned it. it was literally covered with california honeysuckle, and a view point of the town. this entire block was acquired by the late james g. fair, one of the famous mining men of nevada, and it still remains in the family estate. the hotel was in the course of construction at the time of the great fire of april 18-21, 1906, and the interior had to be rebuilt entirely as well as the stonework about the exterior openings. the next of the large homes was that of james c. flood, a handsome and imposing structure of connecticut brownstone. this building stood upon the eastern half of the block between mason and taylor streets and in order to build, a huge hill of rock as high as the building now is, had to be removed. this was in 1876. after the fire of 1906 this building was remodeled and is now occupied by the pacific-union club. mason street had just been cut through this same hill. on the west half of the block stood the home of the late d. d. colton, who made his fortune out of construction contracts on the central pacific railroad. it was afterwards purchased by c. p. huntington, another of the famous railroad magnates. on the next corner stood the large frame mansion of charles crocker, one of the builders of the c. p. r. r., built at an expense of $2,500,000. his son william h. built himself a home on the far corner of the same block. this takes us to jones street. when the late charles crocker selected this site for his home there was one piece of property facing on sacramento street that he could not buy, so in order to get even with the owner, a mr. young, he had a tall spite fence built around the house. the owner lived there for a while, but being shut off as he was from the sunlight, had his house removed; still he would not sell and the fence stood there for years afterwards. on the south side of the street commencing at powell stood the mansion of ex-governor leland stanford. when stanford purchased the property there stood there a fine house built by the actress julia dean hayne, with an entrance at the corner. this house was removed to the corner of pine and hyde streets. the stone retaining wall on powell and pine streets, owing to a spring on the property, gave way and had to be taken down (at the corner) and rebuilt. at the corner it extends 20 feet below the sidewalk and is 20 feet thick and 30 feet high. the ground was then terraced. the building cost in the neighborhood of $2,000,000. on the corner above, mark hopkins built his home. at his death it passed into the hands of a mr. searles who had married hopkins' widow and, not caring to live in california, he had it converted into an art gallery, and the beautiful conservatory into art rooms for the art association of the university of california, to whom he bequeathed the property. the building cost in the neighborhood of $2,750,000. on the next block, between mason and taylor streets, were the hamilton home, the home of ex-mayor e. b. pond and that of the tobins. while on the block from taylor to jones street stood the a. n. towne, h. h. sherwood and george whittell residences. just beyond jones street, on the same side, stood the home of e. j. (lucky) baldwin of race horse fame. in 1861 i moved to 1211 taylor street, between clay and washington, and resided there continuously until 1878, a period of 17 years. and i knew of stanford, hopkins, crocker and huntington, the quartet of railroad magnates, better than they knew of me. but what shall i say of them? they have all gone beyond the boundaries of human existence and their mansions, together with all the other homes on the hill, were burned in the fire of april 18-21, 1906. they were all men of master minds and are deserving the highest praise for their enterprise, determination and perseverance in the great work they undertook. it was not their money that did it, it was their heads. and there is where the great indebtedness of the state of california comes in to these men. going down the eastern slope on california, just below powell on the south side, at the corner of prospect place, stood a house once occupied by lieut. john charles fremont, while on the corner below stood the home of col. jonathan d. stevenson. this building was built in 1851 and had two tiers of verandas that extended entirely around the building. the colonel died at the age of 94 but had not owned or lived there for many years. it had been converted into a hotel and known as the harvey house. across the street on the other corner stood the grace episcopal church. the crocker heirs, not desiring to rebuild on their property on california, between taylor and jones streets, bequeathed it to the episcopal diocese on which to build a new grace church. it is now in course of construction. on pine street, at the southwest corner of stockton, stood the wilson home. on the southeast corner of mason stood the home of j. d. oliver, while on the southwest corner stood the home of mr. fred mccrellish, the owner of the "alta california," while just beyond were the homes of woods, jarboe and harrison and others. on the next block was the old stow residence while across the street isaiah w. lees, chief of police, resided. he was the greatest detective this coast has ever had--his was instinct and intuition, and his records will always remain a lasting monument. on the northwest corner of jones stood the home of the late james g. fair, of mining fame, of nevada. going north on powell street, at no. 812, mr. chilion beach, the bookseller, lived, while next door, no. 814, mr. d. d. shattuck resided. this building was erected in 1854--mr. shattuck came to california via the isthmus and resided here 47 years. on the next block (same side) stood a little one-story house with a high basement in which j. d. spencer, a brother of spencer the sociologist, lived for many years. just beyond stood the old high school building. on the next block, at no. 1010, resided for many years another of the old booksellers, mr. george b. hitchcock, proprietor of the "pioneer book store," opposite the "plaza." at the northwest corner of washington stood the first brick building built in san francisco. it was built in 1851 by john truebody, the brick being brought from new york. it was originally two stories high but upon the grading of the streets it was built another story downward to the new grade. he later added another story, the fourth, on top. even to the time of the fire (1906) you could see the various stairway landings on the washington street frontage. mr. truebody originally owned this entire block. the first church building in yerba buena (as san francisco was formerly called) was the first presbyterian church on the west side of powell near washington. it was built in 1849 of hand-hewn timbers from oregon. upon the erection of the first methodist church it was moved to the rear and used as a sunday school. john truebody constructed it. in this immediate neighborhood were many a frame building that had been brought around the horn "in the knocked down state." powell street, from clay to north beach, was graded in 1854. it and stockton street to the east, from sacramento street north to green street, were lined with neat homes and was then considered the fashionable residence section of the city, while on powell street were three churches. the streets in those days were all planked. beyond mason streets ran the trail westward to the presidio, past scattered cottages, sheds, dairies and vegetable gardens. on the east side of stockton street, between sacramento and clay streets, stood the old pioche residence, wherein were given many lavish entertainments, for its owner was an epicure and hospitable to a degree. he was a heavy speculator and at one time possessed of much property. his death was a mystery and has never been solved. during the '90's his home was used as the chinese consulate. on the west side of taylor street at the corner of sacramento street stood the home of capt. j. b. thomas, after occupied by addison e. head, while on the corner of clay i had my grocery business, living on the next block, between clay and washington, no. 1211. win. t. coleman, the leader of the vigilance committee, lived on the corner of washington street; this house was built by w. f. walton, and occupied in turn by s. c. hastings, wm. t. coleman and d. m. delmas, all men of prominence, while on the next corner stood the home of my old friend, gross, who came across the plains with me in 1849. in later days, mr. chilion beach resided there. on the east side at the southeast corner of washington, stood the j. b. haggin home, while on the northeast corner stood that of the beavers, and at the corner of jackson, the tevis.' in this neighborhood also lived ina d. coolbrith, whose home was the center of the literary genius of the state, amongst them being bret harte, joaquin miller, and charles warren stoddard. josiah stanford, a brother of leland stanford, lived on the south side of jackson street, just below the tevis home. here is as good a place as any to give my readers a short account of the clay street hill underground cable railroad, which operated on clay street from leavenworth to kearny streets, a distance of seven blocks, and at an elevation of 307 feet above the starting point. the cable car was the invention of mr. a. s. hallidie, who organized the company which built the line. this was the first time that the application of an underground cable was ever used to move street cars, and on august 1, 1873, the first run up the clay street hill from kearny to leavenworth street, was made, and by september 1st the road was in operation. it was a wonderful exhibition, and half the town was there to witness it. many were in doubt as to the success of the enterprise. the company required the property holders on the hill to subscribe and donate towards the expense, which they did. the writer owning some property there at that time, gave $100.00 to further the enterprise. this was in 1872. an interested chinese watched the moving cars and remarked: "no pushee, no pullee, go like hellee." the california street railroad company used the same device. this line was operated along california street from kearny to fillmore and first operated april 9, 1878. it was afterwards extended eastward to drumm and market streets and westward to central avenue. the sutter street r. r. co. was in operation january 27, 1877, and the geary street line, february 16, 1880. cable cars were also operated over sacramento and washington streets as well as over powell at later dates. [1] a few words might be said concerning the principals of this trouble. king, whose name was james king (before coming to california he had added "of william" so as to distinguish himself from others of that name), came to california november 10th, 1848, engaged in mining and mercantile pursuits and in december 1849 engaged in the banking business in san francisco. in 1854 he merged with adams & co. shortly afterwards they failed, and he lost everything he possessed. through the financial backing of his friends, he started the "daily evening bulletin," october 8th, 1855, a small four-page sheet about 10 x 15 inches in size. he was fearless in his editorials, but always within the bounds of right and justice, and took a strong position against corruption of the city officials and their means of election. his paper grew in circulation and size, and soon outstripped all the other papers combined. november 17th, 1855, the cora and richardson affair held the attention of the public, and king in his fearlessness inflamed the population into taking matters into their own hands after the courts had failed to convict. and by his so doing had aroused an enmity, and determination from the lawless element to stop his utterances, even at the cost of his life, so when he attacked in his paper, one james p. casey, a lawless character, gambler and ballot box manipulator and supervisor, as having served an eighteen-months sentence in sing sing, n. y., before coming to california, who also published a paper, "the sunday times," it brought matters to a crisis, for casey taking offense at this and other attacks on his ilk, shot king on the evening of may 14, 1856. the shooting of king was the cause of the formation of the vigilance committee of 1856 and the direct means of cleaning the city of the corruptness that had had swing for so many years.--[editor.] [2] two of the unused cartridges of mr. woolley's, at the end of the troublous time of the vigilance committee, are to be seen in the oakland public museum.--[editor.] [3] a large number of the citizens of san francisco interested themselves toward caring and providing for the family of the deceased, mr. king, and through the efforts of mr. f. w. macondray and six others, collected nearly $36,000. they had erected a monument in lone mountain cemetery, supported the family, and in 1868 the money which, had by judicious investment amounted to nearly $40,000, about half of this fund, was turned over to the elder children, leaving $22,000 on deposit, but this, through the bank's failure, netted the family only $15,000. [4] the body of james king, of william, was buried in lone mountain cemetery, that of james p. casey in mission dolores cemetery, by the members of crescent engine company no. 10, of which he was foreman, while that of charles cora was delivered to belle cora and its final resting place is unknown to this day, though it has been stated that she had it buried in mission dolores cemetery.--[editor.] [5] his body was interred in mission dolores cemetery.--[editor.] [6] the name of this "betsy ross" has been lost, though mr. connell probably knew it at the time. the flag, except for the blue field, is badly faded.--[editor.] by the google books project, with a creative commons license granted by the ludwig von mises institute, auburn, alabama the law by frédéric bastiat ludwig von mises institute auburn, alabama cover: prise de la bastille ("the storming of the bastille"); 1789. painting by jean-pierre hoiiel (1735-1813). permission was obtained from the bibliothèque nationale de france for its use. copyright © 2007 by the ludwig von mises institute. printed in china. published by the ludwig von mises institute 518 west magnolia avenue, auburn, alabama 36832 isbn: 978-1-933550-14-5 this book is licensed under a creative commons license. foreword {v} anyone building a personal library of liberty must include in it a copy of frédéric bastiat's classic essay, "the law." first published in 1850 by the great french economist and journalist, it is as clear a statement as has ever been made of the original american ideal of government, as proclaimed in the declaration of independence, that the main purpose of any government is the protection of the lives, liberties, and property of its citizens. bastiat believed that all human beings possessed the god-given, natural rights of "individuality, liberty, property." "this is man," he wrote. these "three gifts from god precede all human legislation." but even in his time--writing in the late 1840s--bastiat was alarmed over how the law had been "perverted" into an instrument of what he called legal plunder. far from protecting individual rights, the law was increasingly used to deprive one group of citizens of those rights for the benefit of another group, and especially for the benefit of the state itself. he condemned the legal plunder of protectionist {vi} tariffs, government subsidies of all kinds, progressive taxation, public schools, government "jobs" programs, minimum wage laws, welfare, usury laws, and more. bastiat's warnings of the dire effects of legal plunder are as relevant today as they were the day he first issued them. the system of legal plunder (which many now celebrate as "democracy") will erase from everyone's conscience, he wrote, the distinction between justice and injustice. the plundered classes will eventually figure out how to enter the political game and plunder their fellow man. legislation will never be guided by any principles of justice, but only by brute political force. the great french champion of liberty also forecast the corruption of education by the state. those who held "government-endowed teaching positions," he wrote, would rarely criticize legal plunder lest their government endowments be ended. the system of legal plunder would also greatly exaggerate the importance of politics in society. that would be a most unhealthy development as it would encourage even more citizens to seek to improve their own well-being not by producing goods and services for the marketplace but by plundering their fellow citizens through politics. bastiat was also wise enough to anticipate what modern economists call "rent seeking" and "rent avoidance" behavior. these two clumsy phrases refer, respectively, to the phenomena of lobbying for political favors (legal plunder), and of engaging in political activity directed at protecting oneself from being the victim of plunder seekers. (for example, the steel manufacturing industry lobbies for high tariffs on steel, whereas steel-using industries, like the automobile industry, can be expected to lobby against high tariffs on steel). {vii} the reason why modem economists are concerned about "rent seeking" is the opportunity cost involved: the more time, effort and money that is spent by businesses on conniving to manipulate politics--merely transferring wealth--the less time is spent on producing goods and services, which increases wealth. thus, legal plunder impoverishes the entire society despite the fact that a small (but politically influential) part of the society benefits from it. it is remarkable, in reading "the law," how perfectly accurate bastiat was in describing the statists of his day which, it turns out, were not much different from the statists of today or any other day. the french "socialists" of bastiat's day espoused doctrines that perverted charity, education, and morals, for one thing. true charity does not begin with the robbery of taxation, he pointed out. government schooling is inevitably an exercise in statist brainwashing, not genuine education; and it is hardly "moral" for a large gang (government) to (legally) rob one segment of the population, keep most of the loot, and share a little of it with various "needy" individuals. socialists want "to play god," bastiat observed, anticipating all the future tyrants and despots of the world who would try to remake the world in their image, whether that image would be communism, fascism, the "glorious union," or "global democracy." bastiat also observed that socialists wanted forced conformity; rigid regimentation of the population through pervasive regulation; forced equality of wealth; and dictatorship. as such, they were the mortal enemies of liberty. "dictatorship" need not involve an actual dictator. all that was needed, said bastiat, was "the laws," enacted {viii} by a congress or a parliament, that would achieve the same effect: forced conformity. bastiat was also wise to point out that the world has far too many "great men," "fathers of their countries," etc., who in reality are usually nothing but petty tyrants with a sick and compulsive desire to rule over others. the defenders of the free society should have a healthy disrespect for all such men. bastiat admired america and pointed to the america of 1850 as being as close as any society in the world to his ideal of a government that protected individual rights to life, liberty, and property. there were two major exeptions, however: the twin evils of slavery and protectionist tariffs. frédéric bastiat died on christmas eve, 1850, and did not live to observe the convulsions that the america he admired so much would go through in the next fifteen years (and longer). it is unlikely that he would have considered the u.s. government's military invasion of the southern states in 1861, the killing of some 300,000 citizens, and the bombing, burning, and plundering of the region's cities, towns, farms, and businesses as being consistent in any way with the protection of the lives, liberties and properties of those citizens as promised by the declaration of independence. had he lived to see all of this, he most likely would have added "legal murder" to "legal plunder" as one of the two great sins of government. he would likely have viewed the post-war republican party, with its 50 percent average tariff rates, its massive corporate welfare schemes, and its 25-year campaign of genocide against the plains indians as first-rate plunderers and traitors to the american ideal. in the latter pages of "the law" bastiat offers the sage advice that what was really needed was "a science of {ix} economics" that would explain the harmony (or lack thereof) of a free society (as opposed to socialism). he made a major contribution to this end himself with the publication of his book, _economic harmonies_, which can be construed as a precursor to the modern literature of the austrian school of economics. there is no substitute for a solid understanding of the market order (and of the realities of politics) when it comes to combating the kinds of destructive socialistic schemes that plagued bastiat's day as well as ours. anyone who reads this great essay along with other free-market classics, such as henry hazlitt's economics in one lesson and murray roth-bard's power and market, will possess enough intellectual ammunition to debunk the socialist fantasies of this or any other day. thomas j. dilorenzo may 2007 thomas dilorenzo is professor of economics at loyola college in maryland and a member of the senior faculty of the mises institute. the law [1] {1} the law perverted! the law--and, in its wake, all the collective forces of the nation--the law, i say, not only diverted from its proper direction, but made to pursue one entirely contrary! the law become the tool of every kind of avarice, instead of being its check! the law guilty of that very iniquity which it was its mission to punish! truly, this is a serious fact, if it exists, and one to which i feel bound to call the attention of my fellow citizens. we hold from god the gift that, as far as we are concerned, contains all others, life--physical, intellectual, and moral life. but life cannot support itself. he who has bestowed it, has entrusted us with the care of supporting it, of developing it, and of perfecting it. to that end, he has provided us with a collection of wonderful faculties; he has plunged us into the midst of a variety of elements. it is by {2} the application of our faculties to these elements that the phenomena of assimilation and of appropriation, by which life pursues the circle that has been assigned to it are realized. existence, faculties, assimilation--in other words, personality, liberty, property--this is man. it is of these three things that it may be said, apart from all demagogic subtlety, that they are anterior and superior to all human legislation. it is not because men have made laws, that personality, liberty, and property exist. on the contrary, it is because personality, liberty, and property exist beforehand, that men make laws. what, then, is law? as i have said elsewhere, it is the collective organization of the individual right to lawful defense. nature, or rather god, has bestowed upon every one of us the right to defend his person, his liberty, and his property, since these are the three constituent or preserving elements of life; elements, each of which is rendered complete by the others, and that cannot be understood without them. for what are our faculties, but the extension of our personality? and what is property, but an extension of our faculties? if every man has the right of defending, even by force, his person, his liberty, and his property, a number of men have the right to combine together to extend, to organize a common force to provide regularly for this defense. collective right, then, has its principle, its reason for existing, its lawfulness, in individual right; and the common force cannot rationally have any other end, or any other mission, than that of the isolated forces for which it is substituted. thus, as the force of an individual cannot lawfully touch the person, the liberty, or the property of {3} another individual--for the same reason, the common force cannot lawfully be used to destroy the person, the liberty, or the property of individuals or of classes. for this perversion of force would be, in one case as in the other, in contradiction to our premises. for who will dare to say that force has been given to us, not to defend our rights, but to annihilate the equal rights of our brethren? and if this be not true of every individual force, acting independently, how can it be true of the collective force, which is only the organized union of isolated forces? nothing, therefore, can be more evident than this: the law is the organization of the natural right of lawful defense; it is the substitution of collective for individual forces, for the purpose of acting in the sphere in which they have a right to act, of doing what they have a right to do, to secure persons, liberties, and properties, and to maintain each in its right, so as to cause justice to reign over all. and if a people established upon this basis were to exist, it seems to me that order would prevail among them in their acts as well as in their ideas. it seems to me that such a people would have the most simple, the most economical, the least oppressive, the least to be felt, the most restrained, the most just, and, consequently, the most stable government that could be imagined, whatever its political form might be. for under such an administration, everyone would feel that he possessed all the fullness, as well as all the responsibility of his existence. so long as personal safety was ensured, so long as labor was free, and the fruits of labor secured against all unjust attacks, no one would have any difficulties to contend with in the state. when {4} prosperous, we should not, it is true, have to thank the state for our success; but when unfortunate, we should no more think of taxing it with our disasters than our peasants think of attributing to it the arrival of hail or of frost. we should know it only by the inestimable blessing of safety. it may further be affirmed, that, thanks to the nonintervention of the state in private affairs, our wants and their satisfactions would develop themselves in their natural order. we should not see poor families seeking for literary instruction before they were supplied with bread. we should not see towns peopled at the expense of rural districts, nor rural districts at the expense of towns. we should not see those great displacements of capital, of labor, and of population, that legislative measures occasion; displacements that render so uncertain and precarious the very sources of existence, and thus enlarge to such an extent the responsibility of governments. unhappily, law is by no means confined to its own sphere. nor is it merely in some ambiguous and debatable views that it has left its proper sphere. it has done more than this. it has acted in direct opposition to its proper end; it has destroyed its own object; it has been employed in annihilating that justice which it ought to have established, in effacing amongst rights, that limit which it was its true mission to respect; it has placed the collective force in the service of those who wish to traffic, without risk and without scruple, in the persons, the liberty, and the property of others; it has converted plunder into a right, that it may protect it, and lawful defense into a crime, that it may punish it. how has this perversion of law been accomplished? and what has resulted from it? {5} the law has been perverted through the influence of two very different causes--naked greed and misconceived philanthropy. let us speak of the former. self-preservation and development is the common aspiration of all men, in such a way that if every one enjoyed the free exercise of his faculties and the free disposition of their fruits, social progress would be incessant, uninterrupted, inevitable. but there is also another disposition which is common to them. this is to live and to develop, when they can, at the expense of one another. this is no rash imputation, emanating from a gloomy, uncharitable spirit. history bears witness to the truth of it, by the incessant wars, the migrations of races, sectarian oppressions, the universality of slavery, the frauds in trade, and the monopolies with which its annals abound. this fatal disposition has its origin in the very constitution of man--in that primitive, and universal, and invincible sentiment that urges it towards its well-being, and makes it seek to escape pain. man can only derive life and enjoyment from a perpetual search and appropriation; that is, from a perpetual application of his faculties to objects, or from labor. this is the origin of property. but also he may live and enjoy, by seizing and appropriating the productions of the faculties of his fellow men. this is the origin of plunder. now, labor being in itself a pain, and man being naturally inclined to avoid pain, it follows, and history proves it, that wherever plunder is less burdensome than labor, it prevails; and neither religion nor morality can, in this case, prevent it from prevailing. when does plunder cease, then? when it becomes more burdensome and more dangerous than labor. it is {6} very evident that the proper aim of law is to oppose the fatal tendency to plunder with the powerful obstacle of collective force; that all its measures should be in favor of property, and against plunder. but the law is made, generally, by one man, or by one class of men. and as law cannot exist without the sanction and the support of a preponderant force, it must finally place this force in the hands of those who legislate. this inevitable phenomenon, combined with the fatal tendency that, we have said, exists in the heart of man, explains the almost universal perversion of law. it is easy to conceive that, instead of being a check upon injustice, it becomes its most invincible instrument. it is easy to conceive that, according to the power of the legislator, it destroys for its own profit, and in different degrees amongst the rest of the community, personal independence by slavery, liberty by oppression, and property by plunder. it is in the nature of men to rise against the injustice of which they are the victims. when, therefore, plunder is organized by law, for the profit of those who perpetrate it, all the plundered classes tend, either by peaceful or revolutionary means, to enter in some way into the manufacturing of laws. these classes, according to the degree of enlightenment at which they have arrived, may propose to themselves two very different ends, when they thus attempt the attainment of their political rights; either they may wish to put an end to lawful plunder, or they may desire to take part in it. woe to the nation where this latter thought prevails amongst the masses, at the moment when they, in their turn, seize upon the legislative power! {7} up to that time, lawful plunder has been exercised by the few upon the many, as is the case in countries where the right of legislating is confined to a few hands. but now it has become universal, and the equilibrium is sought in universal plunder. the injustice that society contains, instead of being rooted out of it, is generalized. as soon as the injured classes have recovered their political rights, their first thought is not to abolish plunder (this would suppose them to possess enlightenment, which they cannot have), but to organize against the other classes, and to their own detriment, a system of reprisals--as if it was necessary, before the reign of justice arrives, that all should undergo a cruel retribution--some for their iniquity and some for their ignorance. it would be impossible, therefore, to introduce into society a greater change and a greater evil than this--the conversion of the law into an instrument of plunder. what would be the consequences of such a perversion? it would require volumes to describe them all. we must content ourselves with pointing out the most striking. in the first place, it would efface from everybody's conscience the distinction between justice and injustice. no society can exist unless the laws are respected to a certain degree, but the safest way to make them respected is to make them respectable. when law and morality are in contradiction to each other, the citizen finds himself in the cruel alternative of either losing his moral sense, or of losing his respect for the law--two evils of equal magnitude, between which it would be difficult to choose. it is so much in the nature of law to support justice that in the minds of the masses they are one and the same. there is in all of us a strong disposition to regard what is lawful as legitimate, so much so that many falsely derive {8} all justice from law. it is sufficient, then, for the law to order and sanction plunder, that it may appear to many consciences just and sacred. slavery, protection, and monopoly find defenders, not only in those who profit by them, but in those who suffer by them. if you suggest a doubt as to the morality of these institutions, it is said directly--"you are a dangerous experimenter, a utopian, a theorist, a despiser of the laws; you would shake the basis upon which society rests." if you lecture upon morality, or political economy, official bodies will be found to make this request to the government: that henceforth science be taught not only with sole reference to free exchange (to liberty, property, and justice), as has been the case up to the present time, but also, and especially, with reference to the facts and legislation (contrary to liberty, property, and justice) that regulate french industry. that, in public lecterns salaried by the treasury, the professor abstain rigorously from endangering in the slightest degree the respect due to the laws now in force.[2] so that if a law exists that sanctions slavery or monopoly, oppression or plunder, in any form whatever, it must not even be mentioned--for how can it be mentioned without damaging the respect that it inspires? still further, morality and political economy must be taught in connection with this law--that is, under the supposition that it must be just, only because it is law. {9} another effect of this deplorable perversion of the law is that it gives to human passions and to political struggles, and, in general, to politics, properly so called, an exaggerated importance. i could prove this assertion in a thousand ways. but i shall confine myself, by way of an illustration, to bringing it to bear upon a subject which has of late occupied everybody's mind: universal suffrage. whatever may be thought of it by the adepts of the school of rousseau, which professes to be very far advanced, but which i consider 20 centuries behind, universal suffrage (taking the word in its strictest sense) is not one of those sacred dogmas with respect to which examination and doubt are crimes. serious objections may be made to it. in the first place, the word universal conceals a gross sophism. there are, in france, 36,000,000 inhabitants. to make the right of suffrage universal, 36,000,000 electors should be reckoned. the most extended system reckons only 9,000,000. three persons out of four, then, are excluded; and more than this, they are excluded by the fourth. upon what principle is this exclusion founded? upon the principle of incapacity. universal suffrage, then, means: universal suffrage of those who are capable. in point of fact, who are the capable? are age, sex, and judicial condemnations the only conditions to which incapacity is to be attached? on taking a nearer view of the subject, we may soon perceive the reason why the right of suffrage depends upon the presumption of incapacity; the most extended system differing from the most restricted in the conditions on which this incapacity depends, and which constitutes not a difference in principle, but in degree. {10} this motive is, that the elector does not stipulate for himself, but for everybody. if, as the republicans of the greek and roman tone pretend, the right of suffrage had fallen to the lot of every one at his birth, it would be an injustice to adults to prevent women and children from voting. why are they prevented? because they are presumed to be incapable. and why is incapacity a reason for exclusion? because the elector does not reap alone the responsibility of his vote; because every vote engages and affects the community at large; because the community has a right to demand some assurances, as regards the acts upon which its well-being and its existence depend. i know what might be said in answer to this. i know what might be objected. but this is not the place to settle a controversy of this kind. what i wish to observe is this, that this same controversy (in common with the greater part of political questions) that agitates, excites, and unsettles the nations, would lose almost all its importance if the law had always been what it ought to be. in fact, if law were confined to causing all persons, all liberties, and all properties to be respected--if it were merely the organization of individual right and individual defense--if it were the obstacle, the check, the chastisement opposed to all oppression, to all plunder--is it likely that we should dispute much, as citizens, on the subject of the greater or lesser universality of suffrage? is it likely that it would compromise that greatest of advantages, the public peace? is it likely that the excluded classes would not quietly wait for their turn? is it likely that the enfranchised classes would be very jealous of their privilege? and is it not clear, that the interest of all being one and the same, some would act without much inconvenience to the others? {11} but if the fatal principle should come to be introduced, that, under pretense of organization, regulation, protection, or encouragement, the law may take from one party in order to give to another, help itself to the wealth acquired by all the classes that it may increase that of one class, whether that of the agriculturists, the manufacturers, the ship owners, or artists and comedians; then certainly, in this case, there is no class which may not try, and with reason, to place its hand upon the law, that would not demand with fury its right of election and eligibility, and that would overturn society rather than not obtain it. even beggars and vagabonds will prove to you that they have an incontestable title to it. they will say: we never buy wine, tobacco, or salt, without paying the tax, and a part of this tax is given by law in perquisites and gratuities to men who are richer than we are. others make use of the law to create an artificial rise in the price of bread, meat, iron, or cloth. since everybody traffics in law for his own profit, we should like to do the same. we should like to make it produce the right to assistance, which is the poor man's plunder. to effect this, we ought to be electors and legislators, that we may organize, on a large scale, alms for our own class, as you have organized, on a large scale, protection for yours. don't tell us that you will take our cause upon yourselves, and throw to us 600,000 francs to keep us quiet, like giving us a bone to pick. we have other claims, and, at any rate, we wish to stipulate for ourselves, as other classes have stipulated for themselves! how is this argument to be answered? yes, as long as it is admitted that the law may be diverted from its true mission, that it may violate property instead of securing it, {12} everybody will be wanting to manufacture law, either to defend himself against plunder, or to organize it for his own profit. the political question will always be prejudicial, predominant, and absorbing; in a word, there will be fighting around the door of the legislative palace. the struggle will be no less furious within it. to be convinced of this, it is hardly necessary to look at what passes in the chambers in france and in england; it is enough to know how the question stands. is there any need to prove that this odious perversion of law is a perpetual source of hatred and discord, that it even tends to social disorganization? look at the united states. there is no country in the world where the law is kept more within its proper domain--which is, to secure to everyone his liberty and his property. therefore, there is no country in the world where social order appears to rest upon a more solid basis. nevertheless, even in the united states, there are two questions, and only two, that from the beginning have endangered political order. and what are these two questions? that of slavery and that of tariffs; that is, precisely the only two questions in which, contrary to the general spirit of this republic, law has taken the character of a plunderer. slavery is a violation, sanctioned by law, of the rights of the person. protection is a violation perpetrated by the law upon the rights of property; and certainly it is very remarkable that, in the midst of so many other debates, this double legal scourge, the sorrowful inheritance of the old world, should be the only one which can, and perhaps will, cause the rupture of the union. indeed, a more astounding fact, in the heart of society, cannot be conceived than this: that law should have become an instrument of injustice. and if this fact occasions consequences so formidable to the united {13} states, where there is but one exception, what must it be with us in europe, where it is a principle--a system? mr. montalembert, adopting the thought of a famous proclamation of mr. carlier, said, "we must make war against socialism." and by socialism, according to the definition of mr. charles dupin, he meant plunder. but what plunder did he mean? for there are two sorts: extralegal and legal plunder. as to extralegal plunder, such as theft, or swindling, which is defined, foreseen, and punished by the penal code, i do not think it can be adorned by the name of socialism. it is not this that systematically threatens the foundations of society. besides, the war against this kind of plunder has not waited for the signal of mr. montalembert or mr. carlier. it has gone on since the beginning of the world; france was carrying it on long before the revolution of february--long before the appearance of socialism--with all the ceremonies of magistracy, police, gendarmerie, prisons, dungeons, and scaffolds. it is the law itself that is conducting this war, and it is to be wished, in my opinion, that the law should always maintain this attitude with respect to plunder. but this is not the case. the law sometimes takes its own part. sometimes it accomplishes it with its own hands, in order to save the parties benefited the shame, the danger, and the scruple. sometimes it places all this ceremony of magistracy, police, gendarmerie, and prisons, at the service of the plunderer, and treats the plundered party, when he defends himself, as the criminal. in a word, there is a legal plunder, and it is, no doubt, this that is meant by mr. montalembert. this plunder may be only an exceptional blemish in the legislation of a people, and in this case, the best thing {14} that can be done is, without so many speeches and lamentations, to do away with it as soon as possible, notwithstanding the clamors of interested parties. but how is it to be distinguished? very easily. see whether the law takes from some persons that which belongs to them, to give to others what does not belong to them. see whether the law performs, for the profit of one citizen, and, to the injury of others, an act that this citizen cannot perform without committing a crime. abolish this law without delay; it is not merely an iniquity--it is a fertile source of iniquities, for it invites reprisals; and if you do not take care, the exceptional case will extend, multiply, and become systematic. no doubt the party benefited will exclaim loudly; he will assert his acquired rights. he will say that the state is bound to protect and encourage his industry; he will plead that it is a good thing for the state to be enriched, that it may spend the more, and thus shower down salaries upon the poor workmen. take care not to listen to this sophistry, for it is just by the systematizing of these arguments that legal plunder becomes systematized. and this is what has taken place. the delusion of the day is to enrich all classes at the expense of each other; it is to generalize plunder under pretense of organizing it. now, legal plunder may be exercised in an infinite multitude of ways. hence come an infinite multitude of plans for organization; tariffs, protection, perquisites, gratuities, encouragements, progressive taxation, free public education, right to work, right to profit, right to wages, right to assistance, right to instruments of labor, gratuity of credit, etc., etc. and it is all these plans, taken as a whole, with what they have in common, legal plunder, that takes the name of socialism. now socialism, thus defined, and forming a doctrinal body, what other war would you make against it than a {15} war of doctrine? you find this doctrine false, absurd, abominable. refute it. this will be all the easier, the more false, absurd, and abominable it is. above all, if you wish to be strong, begin by rooting out of your legislation every particle of socialism which may have crept into it--and this will be no light work. mr. montalembert has been reproached with wishing to turn brute force against socialism. he ought to be exonerated from this reproach, for he has plainly said: "the war that we must make against socialism must be one that is compatible with the law, honor, and justice." but how is it that mr. montalembert does not see that he is placing himself in a vicious circle? you would oppose law to socialism. but it is the law that socialism invokes. it aspires to legal, not extralegal plunder. it is of the law itself, like monopolists of all kinds, that it wants to make an instrument; and when once it has the law on its side, how will you be able to turn the law against it? how will you place it under the power of your tribunals, your gendarmes, and of your prisons? what will you do then? you wish to prevent it from taking any part in the making of laws. you would keep it outside the legislative palace. in this you will not succeed, i venture to prophesy, so long as legal plunder is the basis of the legislation within. it is absolutely necessary that this question of legal plunder should be determined, and there are only three solutions of it: 1. when the few plunder the many. 2. when everybody plunders everybody else. 3. when nobody plunders anybody. partial plunder, universal plunder, absence of plunder, amongst these we have to make our choice. the law can only produce one of these results. {16} partial plunder. this is the system that prevailed so long as the elective privilege was partial; a system that is resorted to, to avoid the invasion of socialism. universal plunder. we have been threatened by this system when the elective privilege has become universal; the masses having conceived the idea of making law, on the principle of legislators who had preceded them. absence of plunder. this is the principle of justice, peace, order, stability, conciliation, and of good sense, which i shall proclaim with all the force of my lungs (which is very inadequate, alas!) till the day of my death. and, in all sincerity, can anything more be required at the hands of the law? can the law, whose necessary sanction is force, be reasonably employed upon anything beyond securing to every one his right? i defy anyone to remove it from this circle without perverting it, and consequently turning force against right. and as this is the most fatal, the most illogical social perversion that can possibly be imagined, it must be admitted that the true solution, so much sought after, of the social problem, is contained in these simple words--law is organized justice. now it is important to remark, that to organize justice by law, that is to say by force, excludes the idea of organizing by law, or by force any manifestation whatever of human activity--labor, charity, agriculture, commerce, industry, instruction, the fine arts, or religion; for any one of these organizings would inevitably destroy the essential organization. how, in fact, can we imagine force encroaching upon the liberty of citizens without infringing upon justice, and so acting against its proper aim? here i am taking on the most popular prejudice of our time. it is not considered enough that law should be just, {17} it must be philanthropic. it is not sufficient that it should guarantee to every citizen the free and inoffensive exercise of his faculties, applied to his physical, intellectual, and moral development; it is required to extend well-being, instruction, and morality, directly over the nation. this is the fascinating side of socialism. but, i repeat it, these two missions of the law contradict each other. we have to choose between them. a citizen cannot at the same time be free and not free. mr. de lamartine wrote to me one day thus: "your doctrine is only the half of my program; you have stopped at liberty, i go on to fraternity." i answered him: "the second part of your program will destroy the first." and in fact it is impossible for me to separate the word fraternity from the word voluntary. i cannot possibly conceive fraternity legally enforced, without liberty being legally destroyed, and justice legally trampled under foot. legal plunder has two roots: one of them, as we have already seen, is in human greed; the other is in misconceived philanthropy. before i proceed, i think i ought to explain myself upon the word plunder. i do not take it, as it often is taken, in a vague, undefined, relative, or metaphorical sense. i use it in its scientific acceptation, and as expressing the opposite idea to property. when a portion of wealth passes out of the hands of him who has acquired it, without his consent, and without compensation, to him who has not created it, whether by force or by artifice, i say that property is violated, that plunder is perpetrated. i say that this is exactly what the law ought to repress always and everywhere. if the law itself performs the action it ought to repress, i say that plunder is still perpetrated, and even, in a social point of view, under aggravated circumstances. in this case, {18} however, he who profits from the plunder is not responsible for it; it is the law, the lawgiver, society itself, and this is where the political danger lies. it is to be regretted that there is something offensive in the word. i have sought in vain for another, for i would not wish at any time, and especially just now, to add an irritating word to our disagreements; therefore, whether i am believed or not, i declare that i do not mean to impugn the intentions nor the morality of anybody. i am attacking an idea that i believe to be false--a system that appears to me to be unjust; and this is so independent of intentions, that each of us profits by it without wishing it, and suffers from it without being aware of the cause. any person must write under the influence of party spirit or of fear, who would call into question the sincerity of protectionism, of socialism, and even of communism, which are one and the same plant, in three different periods of its growth. all that can be said is, that plunder is more visible by its partiality in protectionism, [3] and by its universality in communism; whence it follows that, of the three systems, socialism is still the most vague, the most undefined, and consequently the most sincere. be that as it may, to conclude that legal plunder has one of its roots in misconceived philanthropy, is evidently to put intentions out of the question. {19} with this understanding, let us examine the value, the origin, and the tendency of this popular aspiration, which pretends to realize the general good by general plunder. the socialists say, since the law organizes justice, why should it not organize labor, instruction, and religion? why? because it could not organize labor, instruction, and religion, without disorganizing justice. for remember, that law is force, and that consequently the domain of the law cannot properly extend beyond the domain of force. when law and force keep a man within the bounds of justice, they impose nothing upon him but a mere negation. they only oblige him to abstain from doing harm. they violate neither his personality, his liberty, nor his property. they only guard the personality, the liberty, the property of others. they hold themselves on the defensive; they defend the equal right of all. they fulfill a mission whose harmlessness is evident, whose utility is palpable, and whose legitimacy is not to be disputed. this is so true that, as a friend of mine once remarked to me, to say that the aim of the law is to cause justice to reign, is to use an expression that is not rigorously exact. it ought to be said, the aim of the law is to prevent injustice from reigning. in fact, it is not justice that has an existence of its own, it is injustice. the one results from the absence of the other. but when the law, through the medium of its necessary agent--force--imposes a form of labor, a method or a subject of instruction, a creed, or a worship, it is no longer negative; it acts positively upon men. it substitutes the will of the legislator for their own will, the initiative of the legislator for their own initiative. they have no need to consult, to compare, or to foresee; the law does all that for them. the intellect is for them a useless {20} encumbrance; they cease to be men; they lose their personality, their liberty, their property. try to imagine a form of labor imposed by force, that is not a violation of liberty; a transmission of wealth imposed by force, that is not a violation of property. if you cannot succeed in reconciling this, you are bound to conclude that the law cannot organize labor and industry without organizing injustice. when, from the seclusion of his office, a politician takes a view of society, he is struck with the spectacle of inequality that presents itself. he mourns over the sufferings that are the lot of so many of our brethren, sufferings whose aspect is rendered yet more sorrowful by the contrast of luxury and wealth. he ought, perhaps, to ask himself whether such a social state has not been caused by the plunder of ancient times, exercised in the way of conquests; and by plunder of more recent times, effected through the medium of the laws? he ought to ask himself whether, granting the aspiration of all men to well-being and improvement, the reign of justice would not suffice to realize the greatest activity of progress, and the greatest amount of equality compatible with that individual responsibility that god has awarded as a just retribution of virtue and vice? he never gives this a thought. his mind turns towards combinations, arrangements, legal or factitious organizations. he seeks the remedy in perpetuating and exaggerating what has produced the evil. for, justice apart, which we have seen is only a negation, is there any one of these legal arrangements that does not contain the principle of plunder? you say, "there are men who have no money," and you apply to the law. but the law is not a self-supplied {21} fountain, whence every stream may obtain supplies independently of society. nothing can enter the public treasury, in favor of one citizen or one class, but what other citizens and other classes have been forced to send to it. if everyone draws from it only the equivalent of what he has contributed to it, your law, it is true, is no plunderer, but it does nothing for men who want money--it does not promote equality. it can only be an instrument of equalization as far as it takes from one party to give to another, and then it is an instrument of plunder. examine, in this light, the protection of tariffs, subsidies, right to profit, right to labor, right to assistance, free public education, progressive taxation, gratuitousness of credit, social workshops, and you will always find at the bottom legal plunder, organized injustice. you say, "there are men who want knowledge," and you apply to the law. but the law is not a torch that sheds light that originates within itself. it extends over a society where there are men who have knowledge, and others who have not; citizens who want to learn, and others who are disposed to teach. it can only do one of two things: either allow a free operation to this kind of transaction, i.e., let this kind of want satisfy itself freely; or else preempt the will of the people in the matter, and take from some of them sufficient to pay professors commissioned to instruct others for free. but, in this second case there cannot fail to be a violation of liberty and property--legal plunder. you say, "here are men who are wanting in morality or religion," and you apply to the law; but law is force, and need i say how far it is a violent and absurd enterprise to introduce force in these matters? {22} as the result of its systems and of its efforts, it would seem that socialism, notwithstanding all its self-complacency, can scarcely help perceiving the monster of legal plunder. but what does it do? it disguises it cleverly from others, and even from itself, under the seductive names of fraternity, solidarity, organization, association. and because we do not ask so much at the hands of the law, because we only ask it for justice, it alleges that we reject fraternity, solidarity, organization, and association; and they brand us with the name of individualists. we can assure them that what we repudiate is not natural organization, but forced organization. it is not free association, but the forms of association that they would impose upon us. it is not spontaneous fraternity, but legal fraternity. it is not providential solidarity, but artificial solidarity, which is only an unjust displacement of responsibility. socialism, like the old policy from which it emanates, confounds government and society. and so, every time we object to a thing being done by government, it concludes that we object to its being done at all. we disapprove of education by the state--then we are against education altogether. we object to a state religion--then we would have no religion at all. we object to an equality which is brought about by the state then we are against equality, etc., etc. they might as well accuse us of wishing men not to eat, because we object to the cultivation of corn by the state. how is it that the strange idea of making the law produce what it does not contain--prosperity, in a positive sense, wealth, science, religion--should ever have gained ground in the political world? the modern politicians, particularly those of the socialist school, found their different {23} theories upon one common hypothesis; and surely a more strange, a more presumptuous notion, could never have entered a human brain. they divide mankind into two parts. men in general, except one, form the first; the politician himself forms the second, which is by far the most important. in fact, they begin by supposing that men are devoid of any principle of action, and of any means of discernment in themselves; that they have no initiative; that they are inert matter, passive particles, atoms without impulse; at best a vegetation indifferent to its own mode of existence, susceptible of assuming, from an exterior will and hand an infinite number of forms, more or less symmetrical, artistic, and perfected. moreover, every one of these politicians does not hesitate to assume that he himself is, under the names of organizer, discoverer, legislator, institutor or founder, this will and hand, this universal initiative, this creative power, whose sublime mission it is to gather together these scattered materials, that is, men, into society. starting from these data, as a gardener according to his caprice shapes his trees into pyramids, parasols, cubes, cones, vases, espaliers, distaffs, or fans; so the socialist, following his chimera, shapes poor humanity into groups, series, circles, subcircles, honeycombs, or social workshops, with all kinds of variations. and as the gardener, to bring his trees into shape, needs hatchets, pruning hooks, saws, and shears, so the politician, to bring society into shape, needs the forces which he can only find in the laws; the law of tariffs, the law of taxation, the law of assistance, and the law of education. it is so true, that the socialists look upon mankind as a subject for social experiments, that if, by chance, they {24} are not quite certain of the success of these experiments, they will request a portion of mankind, as a subject to experiment upon. it is well known how popular the idea of trying all systems is, and one of their chiefs has been known seriously to demand of the constituent assembly a parish, with all its inhabitants, upon which to make his experiments. it is thus that an inventor will make a small machine before he makes one of the regular size. thus the chemist sacrifices some substances, the agriculturist some seed and a corner of his field, to make trial of an idea. but think of the difference between the gardener and his trees, between the inventor and his machine, between the chemist and his substances, between the agriculturist and his seed! the socialist thinks, in all sincerity, that there is the same difference between himself and mankind. no wonder the politicians of the nineteenth century look upon society as an artificial production of the legislator's genius. this idea, the result of a classical education, has taken possession of all the thinkers and great writers of our country. to all these persons, the relations between mankind and the legislator appear to be the same as those that exist between the clay and the potter. moreover, if they have consented to recognize in the heart of man a capability of action, and in his intellect a faculty of discernment, they have looked upon this gift of god as a fatal one, and thought that mankind, under these two impulses, tended fatally towards ruin. they have taken it for granted that if abandoned to their own inclinations, men would only occupy themselves with religion to arrive at atheism, with instruction to come to ignorance, and with labor and exchange to be extinguished in misery. {25} happily, according to these writers, there are some men, termed governors and legislators, upon whom heaven has bestowed opposite tendencies, not for their own sake only, but for the sake of the rest of the world. whilst mankind tends to evil, they incline to good; whilst mankind is advancing towards darkness, they are aspiring to enlightenment; whilst mankind is drawn towards vice, they are attracted by virtue. and, this granted, they demand the assistance of force, by means of which they are to substitute their own tendencies for those of the human race. it is only needful to open, almost at random, a book on philosophy, politics, or history, to see how strongly this idea--the child of classical studies and the mother of socialism--is rooted in our country; that mankind is merely inert matter, receiving life, organization, morality, and wealth from power; or, rather, and still worse--that mankind itself tends towards degradation, and is only arrested in its tendency by the mysterious hand of the legislator. classical conventionalism shows us everywhere, behind passive society, a hidden power, under the names of law, or legislator (or, by a mode of expression which refers to some person or persons of undisputed weight and authority, but not named), which moves, animates, enriches, and regenerates mankind. we will give a quotation from bossuet: one of the things which was the most strongly impressed (by whom?) upon the mind of the egyptians, was the love of their country.... nobody was allowed to be useless to the state; the law assigned to every one his employment, which descended from father to son. no one was permitted to have two professions, nor to adopt another. ... but there was one occupation which was {26} obliged to be common to all, this was the study of the laws and of wisdom; ignorance of religion and the political regulations of the country was excused in no condition of life. moreover, every profession had a district assigned to it (by whom?).... amongst good laws, one of the best things was, that everybody was taught to observe them (by whom?). egypt abounded with wonderful inventions, and nothing was neglected which could render life comfortable and tranquil. thus men, according to bossuet, derive nothing from themselves; patriotism, wealth, inventions, husbandry, science--all come to them by the operation of the laws, or by kings. all they have to do is to be passive. it is on this ground that bossuet takes exception when diodorus accuses the egyptians of rejecting wrestling and music. "how is that possible," says he, "since these arts were invented by trismegistus?" it is the same with the persians: one of the first cares of the prince was to encourage agriculture.... as there were posts established for the regulation of the armies, so there were offices for the superintending of rural works.... the respect with which the persians were inspired for royal authority was excessive. the greeks, although full of mind, were no less strangers to their own responsibilities; so much so, that of themselves, like dogs and horses, they would not have ventured upon the most simple games. in a classical sense, it is an undisputed thing that everything comes to the people from without. the greeks, naturally full of spirit and courage, had been early cultivated by kings and colonies who had come from egypt. from them they had {27} learned the exercises of the body, foot races, and horse and chariot races.... the best thing that the egyptians had taught them was to become docile, and to allow themselves to be formed by the laws for the public good. fenelon--reared in the study and admiration of antiquity and a witness of the power of louis xiv, fenelon naturally adopted the idea that mankind should be passive, and that its misfortunes and its prosperities, its virtues and its vices, are caused by the external influence that is exercised upon it by the law, or by the makers of the law. thus, in his utopia of salentum, he brings the men, with their interests, their faculties, their desires, and their possessions, under the absolute direction of the legislator. whatever the subject may be, they themselves have no voice in it--the prince judges for them. the nation is just a shapeless mass, of which the prince is the soul. in him resides the thought, the foresight, the principle of all organization, of all progress; on him, therefore, rests all the responsibility. in proof of this assertion, i might transcribe the whole of the tenth book of _telemachus_. i refer the reader to it, and shall content myself with quoting some passages taken at random from this celebrated work, to which, in every other respect, i am the first to render justice. with the astonishing credulity that characterizes the classics, fénelon, against the authority of reason and of facts, admits the general felicity of the egyptians, and attributes it, not to their own wisdom, but to that of their kings: we could not turn our eyes to the two shores, without perceiving rich towns and country seats, agreeably situated; fields that were covered every year, {28} without intermission, with golden crops; meadows full of flocks; laborers bending under the weight of fruits that the earth lavished on its cultivators; and shepherds who made the echoes around repeat the soft sounds of their pipes and flutes. "happy," said mentor, "is that people who is governed by a wise king."... mentor afterwards desired me to remark the happiness and abundance that was spread over all the country of egypt, where twenty-two thousand cities might be counted. he admired the excellent police regulations of the cities; the justice administered in favor of the poor against the rich; the good education of the children, who were accustomed to obedience, labor, and the love of arts and letters; the exactness with which all the ceremonies of religion were performed; the disinterestedness, the desire of honor, the fidelity to men, and the fear of the gods, with which every father inspired his children. he could not sufficiently admire the prosperous state of the country. "happy" said he, "is the people whom a wise king rules in such a manner." fénelon's idyll on crete is still more fascinating. mentor is made to say: all that you will see in this wonderful island is the result of the laws of minos. the education that the children receive renders the body healthy and robust. they are accustomed, from the first, to a frugal and laborious life; it is supposed that all the pleasures of sense enervate the body and the mind; no other pleasure is presented to them but that of being invincible by virtue, that of acquiring much glory... there they punish three vices that go unpunished amongst other people--ingratitude, dissimulation, and avarice. as to pomp and dissipation, there is no need to punish these, for they are unknown in crete.... no costly furniture, no magnificent clothing, no delicious feasts, no gilded palaces are allowed. {29} it is thus that mentor prepares his scholar to mould and manipulate, doubtless with the most philanthropic intentions, the people of ithaca, and, to confirm him in these ideas, he gives him the example of salentum. so we receive our first political notions. we are taught to treat men very much as oliver de serres teaches farmers to manage and to mix the soil. montesquieu- to sustain the spirit of commerce, it is necessary that all the laws should favor it; that these same laws, by their regulations in dividing the fortunes in proportion as commerce enlarges them, should place every poor citizen in sufficiently easy circumstances to enable him to work like the others, and every rich citizen in such mediocrity that he must work, in order to retain or to acquire. thus the laws are to dispose of all fortunes. although in a democracy, real equality be the soul of the state, yet it is so difficult to establish that an extreme exactness in this matter would not always be desirable. it is sufficient that a census be established to reduce or fix the differences to a certain point, after which, it is for particular laws to equalize, as it were, the inequality by burdens imposed upon the rich and reliefs granted to the poor. here, again, we see the equalization of fortunes by law, that is, by force. there were, in greece, two kinds of republics. one was military, as sparta; the other commercial, as athens. in the one it was wished (by whom?) that the citizens should be idle: in the other, the love of labor was encouraged. it is worth our while to pay a little attention to the extent of genius required by these legislators, that {30} we may see how, by confounding all the virtues, they showed their wisdom to the world. lycurgus, blending theft with the spirit of justice, the hardest slavery with extreme liberty, the most atrocious sentiments with the greatest moderation, gave stability to his city. he seemed to deprive it of all its resources, arts, commerce, money, and walls; there was ambition without the hope of rising; there were natural sentiments where the individual was neither child, nor husband, nor father. chastity even was deprived of modesty. by this road sparta was led on to grandeur and to glory. the phenomenon that we observe in the institutions of greece has been seen in the midst of the degeneracy and corruption of our modern times. an honest legislator has formed a people where probity has appeared as natural as bravery among the spartans. mr. penn is a true lycurgus, and although the former had peace for his object, and the latter war, they resemble each other in the singular path along which they have led their people, in their influence over free men, in the prejudices which they have overcome, the passions they have subdued. paraguay furnishes us with another example. society has been accused of the crime of regarding the pleasure of commanding as the only good of life; but it will always be a noble thing to govern men by making them happy. those who desire to form similar institutions will establish community of property, as in the republic of plato, the same reverence as he enjoined for the gods, separation from strangers for the preservation of morality, and make the city and not the citizens create commerce: they should give our arts without our luxury, our wants without our desires. {31} vulgar infatuation may exclaim, if it likes, "it is montesquieu! magnificent! sublime!" i am not afraid to express my opinion, and to say: what! you have the gall to call that fine? it is frightful! it is abominable! and these extracts, which i might multiply, show that according to montesquieu, the persons, the liberties, the property, mankind itself, are nothing but grist for the mill of the sagacity of lawgivers. rousseau--although this politician, the paramount authority of the democrats, makes the social edifice rest upon the general will, no one has so completely admitted the hypothesis of the entire passiveness of human nature in the presence of the lawgiver: if it is true that a great prince is a rare thing, how much more so must a great lawgiver be? the former has only to follow the pattern proposed to him by the latter. this latter is the engineer who invents the machine; the former is merely the workman who sets it in motion. and what part have men to act in all this? that of the machine, which is set in motion; or rather, are they not the brute matter of which the machine is made? thus, between the legislator and the prince, between the prince and his subjects, there are the same relations as those that exist between the agricultural writer and the agriculturist, the agriculturist and the clod. at what a vast height, then, is the politician placed, who rules over legislators themselves and teaches them their trade in such imperative terms as the following: would you give consistency to the state? bring the extremes together as much as possible. suffer neither wealthy persons nor beggars. {32} if the soil is poor and barren, or the country too much confined for the inhabitants, turn to industry and the arts, whose productions you will exchange for the provisions which you require.... on a good soil, if you are short of inhabitants, give all your attention to agriculture, which multiplies men, and banish the arts, which only serve to depopulate the country.... pay attention to extensive and convenient coasts. cover the sea with vessels, and you will have a brilliant and short existence. if your seas wash only inaccessible rocks, let the people be barbarous, and eat fish; they will live more quietly, perhaps better, and most certainly more happily. in short, besides those maxims which are common to all, every people has its own particular circumstances, which demand a legislation peculiar to itself. it was thus that the hebrews formerly, and the arabs more recently, had religion for their principal object; that of the athenians was literature; that of carthage and tyre, commerce; of rhodes, naval affairs; of sparta, war; and of rome, virtue. the author of the "spirit of laws" has shown the art by which the legislator should frame his institutions towards each of these objects.... but if the legislator, mistaking his object, should take up a principle different from that which arises from the nature of things; if one should tend to slavery, and the other to liberty; if one to wealth, and the other to population; one to peace, and the other to conquests; the laws will insensibly become enfeebled, the constitution will be impaired, and the state will be subject to incessant agitations until it is destroyed, or becomes changed, and invincible nature regains her empire. but if nature is sufficiently invincible to regain its empire, why does not rousseau admit that it had no need of the legislator to gain its empire from the beginning? {33} why does he not allow that by obeying their own impulse, men would of themselves apply agriculture to a fertile district, and commerce to extensive and commodious coasts without the interference of a lycurgus, a solon, or a rousseau, who would undertake it at the risk of deceiving themselves? be that as it may, we see with what a terrible responsibility rousseau invests inventors, institutors, conductors, and manipulators of societies. he is, therefore, very exacting with regard to them. he who dares to undertake the institutions of a people, ought to feel that he can, as it were, transform every individual, who is by himself a perfect and solitary whole, receiving his life and being from a larger whole of which he forms a part; he must feel that he can change the constitution of man, to fortify it, and substitute a social and moral existence for the physical and independent one that we have all received from nature. in a word, he must deprive man of his own powers, to give him others that are foreign to him. poor human nature! what would become of its dignity if it were entrusted to the disciples of rousseau? raynal- the climate, that is, the air and the soil, is the first element for the legislator. his resources prescribe to him his duties. first, he must consult his local position. a population dwelling upon maritime shores must have laws fitted for navigation.... if the colony is located in an inland region, a legislator must provide for the nature of the soil, and for its degree of fertility.... it is more especially in the distribution of property that the wisdom of legislation will appear. as a {34} general rule, and in every country, when a new colony is founded, land should be given to each man, sufficient for the support of his family.... in an uncultivated island, which you are colonizing with children, it will only be needful to let the germs of truth expand in the developments of reason!... but when you establish old people in a new country, the skill consists in only allowing it those injurious opinions and customs which it is impossible to cure and correct. if you wish to prevent them from being perpetuated, you will act upon the rising generation by a general and public education of the children. a prince or legislator ought never to found a colony without previously sending wise men there to instruct the youth.... in a new colony, every facility is open to the precautions of the legislator who desires to purify the tone and the manners of the people. if he has genius and virtue, the lands and the men that are at his disposal will inspire his soul with a plan of society that a writer can only vaguely trace, and in a way that would be subject to the instability of all hypotheses, which are varied and complicated by an infinity of circumstances too difficult to foresee and to combine. one would think it was a professor of agriculture who was saying to his pupils the climate is the only rule for the agriculturist. his resources dictate to him his duties. the first thing he has to consider is his local position. if he is on a clayey soil, he must do so and so. if he has to contend with sand, this is the way in which he must set about it. every facility is open to the agriculturist who wishes to clear and improve his soil. if he only has the skill, the manure which he has at his disposal will suggest to him a plan of operation, which a professor can only vaguely trace, and in a way that would be subject to the uncertainty of all hypotheses, which vary and are complicated by an {35} infinity of circumstances too difficult to foresee and to combine. but, oh! sublime writers, deign to remember sometimes that this clay, this sand, this manure, of which you are disposing in so arbitrary a manner, are men, your equals, intelligent and free beings like yourselves, who have received from god, as you have, the faculty of seeing, of foreseeing, of thinking, and of judging for themselves! mably--(he is supposing the laws to be worn out by time and by the neglect of security, and continues thus): under these circumstances, we must be convinced that the bonds of government are slack. give them a new tension (it is the reader who is addressed), and the evil will be remedied.... think less of punishing the faults than of encouraging the virtues that you want. by this method you will bestow upon your republic the vigor of youth. through ignorance of this, a free people has lost its liberty! but if the evil has made so much way that the ordinary magistrates are unable to remedy it effectually, have recourse to an extraordinary magistracy, whose time should be short, and its power considerable. the imagination of the citizens requires to be impressed. in this style he goes on through twenty volumes. there was a time when, under the influence of teaching like this, which is the foundation of classical education, everyone was for placing himself beyond and above mankind, for the sake of arranging, organizing, and instituting it in his own way. condillac- take upon yourself, my lord, the character of lycurgus or of solon. before you finish reading {36} this essay, amuse yourself with giving laws to some wild people in america or in africa. establish these roving men in fixed dwellings; teach them to keep flocks.... endeavor to develop the social qualities that nature has implanted in them.... make them begin to practice the duties of humanity.... cause the pleasures of the passions to become distasteful to them by punishments, and you will see these barbarians, with every plan of your legislation, lose a vice and gain a virtue. all these people have had laws. but few among them have been happy. why is this? because legislators have almost always been ignorant of the object of society, which is to unite families by a common interest. impartiality in law consists in two things, in establishing equality in the fortunes and in the dignity of the citizens.... in proportion to the degree of equality established by the laws, the dearer will they become to every citizen. how can avarice, ambition, dissipation, idleness, sloth, envy, hatred, or jealousy agitate men who are equal in fortune and dignity, and to whom the laws leave no hope of disturbing their equality? what has been told you of the republic of sparta ought to enlighten you on this question. no other state has had laws more in accordance with the order of nature or of equality. it is not to be wondered at that the seventeenth and eighteenth centuries should have looked upon the human race as inert matter, ready to receive everything--form, figure, impulse, movement, and life, from a great prince, or a great legislator, or a great genius. these ages were reared in the study of antiquity; and antiquity presents everywhere--in egypt, persia, greece, and rome, the {37} spectacle of a few men molding mankind according to their fancy, and mankind to this end enslaved by force or by imposture. and what does this prove? that because men and society are improvable, error, ignorance, despotism, slavery, and superstition must be more prevalent in early times. the mistake of the writers quoted above is not that they have asserted this fact, but that they have proposed it as a rule for the admiration and imitation of future generations. their mistake has been, with an inconceivable absence of discernment, and upon the faith of a puerile conventionalism, that they have admitted what is inadmissible, viz., the grandeur, dignity, morality, and well-being of the artificial societies of the ancient world; they have not understood that time produces and spreads enlightenment; and that in proportion to the increase of enlightenment, right ceases to be upheld by force, and society regains possession of herself. and, in fact, what is the political work that we are endeavoring to promote? it is no other than the instinctive effort of every people towards liberty. and what is liberty, whose name can make every heart beat, and which can agitate the world, but the union of all liberties, the liberty of conscience, of education, of association, of the press, of movement, of labor, and of exchange; in other words, the free exercise, for all, of all the inoffensive faculties; and again, in other words, the destruction of all despotisms, even of legal despotism, and the reduction of law to its only rational sphere, which is to regulate the individual right of legitimate defense, or to repress injustice? this tendency of the human race, it must be admitted, is greatly thwarted, particularly in our country, by the fatal disposition, resulting from classical teaching and common to all politicians, of placing themselves beyond {38} mankind, to arrange, organize, and regulate it, according to their fancy. for whilst society is struggling to realize liberty, the great men who place themselves at its head, imbued with the principles of the seventeenth and eighteenth centuries, think only of subjecting it to the philanthropic despotism of their social inventions, and making it bear with docility, according to the expression of rousseau, the yoke of public felicity as pictured in their own imaginations. this was particularly the case in 1789. no sooner was the old system destroyed than society was to be submitted to other artificial arrangements, always with the same starting point--the omnipotence of the law. saint-just- the legislator commands the future. it is for him to will for the good of mankind. it is for him to make men what he wishes them to be. robespierre- the function of government is to direct the physical and moral powers of the nation towards the object of its institution. billaud varennes- a people who are to be restored to liberty must be formed anew. ancient prejudices must be destroyed, antiquated customs changed, depraved affections corrected, inveterate vices eradicated. for this, a strong force and a vehement impulse will be necessary.... citizens, the inflexible austerity of lycurgus created the firm basis of the spartan republic. the feeble and trusting disposition of solon plunged athens into slavery. this parallel contains the whole science of government. {39} lepelletier- considering the extent of human degradation, i am convinced--of the necessity of effecting an entire regeneration of the race, and, if i may so express myself, of creating a new people. men, therefore, are nothing but raw material. it is not for them to will their own improvement. they are not capable of it; according to saint-just, it is only the legislator who is. men are merely to be what he wills that they should be. according to robespierre, who copies rousseau literally, the legislator is to begin by assigning the aim of the institutions of the nation. after this, the government has only to direct all its physical and moral forces towards this end. all this time the nation itself is to remain perfectly passive; and billaud varennes would teach us that it ought to have no prejudices, affections, nor wants, but such as are authorized by the legislator. he even goes so far as to say that the inflexible austerity of a man is the basis of a republic. we have seen that, in cases where the evil is so great that the ordinary magistrates are unable to remedy it, mably recommends a dictatorship, to promote virtue. "have recourse," says he, "to an extraordinary magistracy, whose time shall be short, and his power considerable. the imagination of the people requires to be impressed." this doctrine has not been neglected. listen to robespierre: the principle of the republican government is virtue, and the means to be adopted, during its establishment, is terror. we want to substitute, in our country, morality for self-indulgence, probity for honor, principles for customs, duties for decorum, the empire of reason for the tyranny of {40} fashion, contempt of vice for contempt of misfortune, pride for insolence, greatness of soul for vanity, love of glory for love of money, good people for good company, merit for intrigue, genius for wit, truth for glitter, the charm of happiness for the weariness of pleasure, the greatness of man for the littleness of the great, a magnanimous, powerful, happy people, for one that is easy, frivolous, degraded; that is to say, we would substitute all the virtues and miracles of a republic for all the vices and absurdities of monarchy. at what a vast height above the rest of mankind does robespierre place himself here! and observe the arrogance with which he speaks. he is not content with expressing a desire for a great renovation of the human heart, he does not even expect such a result from a regular government. no; he intends to effect it himself, and by means of terror. the object of the discourse from which this puerile and laborious mass of antithesis is extracted, was to exhibit the principles of morality that ought to direct a revolutionary government. moreover, when robespierre asks for a dictatorship, it is not merely for the purpose of repelling a foreign enemy, or of putting down factions; it is that he may establish, by means of terror and as a preliminary to the operation of the constitution, his own principles of morality. he pretends to nothing short of extirpating from the country by means of terror, self-interest, honor, customs, decorum, fashion, vanity, the love of money, good company, intrigue, wit, luxury, and misery. it is not until after he, robespierre, shall have accomplished these miracles, as he rightly calls them, that he will allow the law to regain her empire. truly it would be well if these visionaries, who think so much of themselves and so little of mankind, who want to {41} renew everything, would only be content with trying to reform themselves, the task would be arduous enough for them. in general, however, these gentlemen, the reformers, legislators, and politicians, do not desire to exercise an immediate despotism over mankind. no, they are too moderate and too philanthropic for that. they only contend for the despotism, the absolutism, the omnipotence of the law. they aspire only to make the law. to show how universal this strange disposition has been in france, i had need not only to have copied the whole of the works of mably, raynal, rousseau, fenelon, and to have made long extracts from bossuet and montesquieu, but to have given the entire transactions of the sittings of the convention. i shall do no such thing, however, but merely refer the reader to them. no wonder this idea suited bonaparte so well. he embraced it with ardor, and put it in practice with energy. playing the part of a chemist, europe was to him the material for his experiments. but this material reacted against him. more than half undeceived, bonaparte, at st. helena, seemed to admit that there is an initiative in every people, and he became less hostile to liberty. yet this did not prevent him from giving this lesson to his son in his will--"to govern is to diffuse morality, education, and well-being." after all this, i hardly need show, by fastidious quotations, the opinions of morelly, babeuf, owen, saint simon, and fourier. i shall confine myself to a few extracts from louis blanc's book on the organization of labor. "in our project, society receives the impulse of power." in what does the impulse that power gives to society consist? in imposing upon it the project of mr. louis blanc. {42} on the other hand, society is the human race. the human race, then, is to receive its impulse from mr. louis blanc. it is at liberty to do so or not, it will be said. of course the human race is at liberty to take advice from anybody, whoever it may be. but this is not the way in which mr. louis blanc understands the thing. he means that his project should be converted into law, and consequently forcibly imposed by power. in our project, the state has only to give a legislation to labor, by means of which the industrial movement may and ought to be accomplished in all liberty. it (the state) merely places society on an incline (that is all) that it may descend, when once it is placed there, by the mere force of things, and by the natural course of the established mechanism. but what is this incline? one indicated by mr. louis blanc. does it not lead to an abyss? no, it leads to happiness. why, then, does not society go there of itself? because it does not know what it wants, and it requires an impulse. what is to give it this impulse? power. and who is to give the impulse to power? the inventor of the machine, mr. louis blanc. we shall never get out of this circle--mankind passive, and a great man moving it by the intervention of the law. once on this incline, will society enjoy something like liberty? without a doubt. and what is liberty? once for all: liberty consists not only in the right granted, but in the power given to man to exercise, to develop his faculties under the empire of justice, and under the protection of the law. and this is no vain distinction; there is a deep meaning in it, and its consequences are imponderable. for {43} when once it is admitted that man, to be truly free, must have the power to exercise and develop his faculties, it follows that every member of society has a claim upon it for such education as shall enable his faculties to display themselves, and for the tools of labor, without which human activity can find no scope. now, by whose intervention is society to give to each of its members the requisite education and the necessary tools of labor, unless by that of the state? thus, liberty is power. in what does this power consist? in possessing education and tools of labor. who is to give education and tools of labor? society, who owes them. by whose intervention is society to give tools of labor to those who do not possess them? by the intervention of the state. from whom is the state to obtain them? it is for the reader to answer this question, and to notice whither all this tends. one of the strangest phenomena of our time, and one that will probably be a matter of astonishment to our descendants, is the doctrine which is founded upon this triple hypothesis: the radical passiveness of mankind,--the omnipotence of the law,--the infallibility of the legislator: this is the sacred symbol of the party that proclaims itself exclusively democratic. it is true that it professes also to be social. so far as it is democratic, it has an unlimited faith in mankind. so far as it is social, it places mankind beneath the mud. are political rights under discussion? is a legislator to be chosen? oh, then the people possess science by instinct: they are gifted with an admirable discernment; their will is always right; the general will cannot err. suffrage cannot {44} be too universal. nobody is under any responsibility to society. the will and the capacity to choose well are taken for granted. can the people be mistaken? are we not living in an age of enlightenment? what! are the people to be forever led about by the nose? have they not acquired their rights at the cost of effort and sacrifice? have they not given sufficient proof of intelligence and wisdom? are they not arrived at maturity? are they not in a state to judge for themselves? do they not know their own interest? is there a man or a class who would dare to claim the right of putting himself in the place of the people, of deciding and of acting for them? no, no; the people would be free, and they shall be so. they wish to conduct their own affairs, and they shall do so. but when once the legislator is duly elected, then indeed the style of his speech alters. the nation is sent back into passiveness, inertness, nothingness, and the legislator takes possession of omnipotence. it is for him to invent, for him to direct, for him to impel, for him to organize. mankind has nothing to do but to submit; the hour of despotism has struck. and we must observe that this is decisive; for the people, just before so enlightened, so moral, so perfect, have no inclinations at all, or, if they have any, these all lead them downwards towards degradation. and yet they ought to have a little liberty! but are we not assured by mr. considerant that liberty leads fatally to monopoly? are we not told that liberty is competition? and that competition, according to mr. louis blanc, is a system of extermination for the people, and of ruination for trade? for that reason people are exterminated and ruined in proportion as they are free--take, for example, switzerland, holland, england, and the united states? does not mr. louis blanc tell us again that competition {45} leads to monopoly, and that, for the same reason, cheapness leads to exorbitant prices? that competition tends to drain the sources of consumption, and diverts production to a destructive activity? that competition forces production to increase, and consumption to decrease--whence it follows that free people produce for the sake of not consuming; that there is nothing but oppression and madness among them; and that it is absolutely necessary for mr. louis blanc to see to it? what sort of liberty should be allowed to men? liberty of conscience?--but we should see them all profiting by the permission to become atheists. liberty of education?--but parents would be paying professors to teach their sons immorality and error; besides, if we are to believe mr. thiers, education, if left to the national liberty, would cease to be national, and we should be educating our children in the ideas of the turks or hindus, instead of which, thanks to the legal despotism of the universities, they have the good fortune to be educated in the noble ideas of the romans. liberty of labor? but this is only competition, whose effect is to leave all products unconsumed, to exterminate the people, and to ruin the tradesmen. the liberty of exchange? but it is well known that the protectionists have shown, over and over again, that a man will inevitably be ruined when he exchanges freely, and that to become rich it is necessary to exchange without liberty. liberty of association? but according to the socialist doctrine, liberty and association exclude each other, for the liberty of men is attacked just to force them to associate. you must see, then, that the socialist democrats cannot in conscience allow men any liberty, because, by their own {46} nature, they tend in every instance to all kinds of degradation and demoralization. we are therefore left to conjecture, in this case, upon what foundation universal suffrage is claimed for them with so much importunity. the pretensions of organizers suggest another question, which i have often asked them, and to which i am not aware that i ever received an answer: since the natural tendencies of mankind are so bad that it is not safe to allow them liberty, how comes it to pass that the tendencies of organizers are always good? do not the legislators and their agents form a part of the human race? do they consider that they are composed of different materials from the rest of mankind? they say that society, when left to itself, rushes to inevitable destruction, because its instincts are perverse. they presume to stop it in its downward course, and to give it a better direction. they have, therefore, received from heaven, intelligence and virtues that place them beyond and above mankind: let them show their title to this superiority. they would be our shepherds, and we are to be their flock. this arrangement presupposes in them a natural superiority, the right to which we are fully justified in calling upon them to prove. you must observe that i am not contending against their right to invent social combinations, to propagate them, to recommend them, and to try them upon themselves, at their own expense and risk; but i do dispute their right to impose them upon us through the medium of the law, that is, by force and by public taxes. i would not insist upon the cabetists, the fourierists, the proudhonians, the academics, and the protectionists renouncing their own particular ideas; i would only have them renounce the idea that is common to them all--viz., {47} that of subjecting us by force to their own categories and rankings to their social laboratories, to their ever-inflating bank, to their greco-roman morality, and to their commercial restrictions. i would ask them to allow us the faculty of judging of their plans, and not to oblige us to adopt them if we find that they hurt our interests or are repugnant to our consciences. to presume to have recourse to power and taxation, besides being oppressive and unjust, implies further, the pernicious assumption that the organized is infallible, and mankind incompetent. and if mankind is not competent to judge for itself, why do they talk so much about universal suffrage? this contradiction in ideas is unhappily to be found also in facts; and whilst the french nation has preceded all others in obtaining its rights, or rather its political claims, this has by no means prevented it from being more governed, and directed, and imposed upon, and fettered, and cheated, than any other nation. it is also the one, of all others, where revolutions are constantly to be dreaded, and it is perfectly natural that it should be so. so long as this idea is retained, which is admitted by all our politicians, and so energetically expressed by mr. louis blanc in these words--"society receives its impulse from power," so long as men consider themselves as capable of feeling, yet passive--incapable of raising themselves by their own discernment and by their own energy to any morality, or well-being, and while they expect everything from the law; in a word, while they admit that their relations with the state are the same as those of the flock with the shepherd, it is clear that the responsibility of power is immense. fortune and misfortune, wealth and destitution, equality and inequality all proceed from it. it is charged {48} with everything, it undertakes everything, it does everything; therefore it has to answer for everything. if we are happy, it has a right to claim our gratitude; but if we are miserable, it alone must bear the blame. are not our persons and property in fact, at its disposal? is not the law omnipotent? in creating the educational monopoly, it has undertaken to answer the expectations of fathers of families who have been deprived of liberty; and if these expectations are disappointed, whose fault is it? in regulating industry, it has undertaken to make it prosper, otherwise it would have been absurd to deprive it of its liberty; and if it suffers, whose fault is it? in pretending to adjust the balance of commerce by the game of tariffs, it undertakes to make commerce prosper; and if, so far from prospering, it is destroyed, whose fault is it? in granting its protection to maritime armaments in exchange for their liberty, it has undertaken to render them self-sufficient; if they become burdensome, whose fault is it? thus, there is not a grievance in the nation for which the government does not voluntarily make itself responsible. is it any wonder that every failure threatens to cause a revolution? and what is the remedy proposed? to extend indefinitely the dominion of the law, i.e., the responsibility of government. but if the government undertakes to raise and to regulate wages, and is not able to do it; if it undertakes to assist all those who are in want, and is not able to do it; if it undertakes to provide work for every laborer, and is not able to do it; if it undertakes to offer to all who wish to borrow, easy credit, and is not able to do it; if, in words that we regret should have escaped the pen of mr. de lamartine, "the state considers that its mission is to enlighten, to {49} develop, to enlarge, to strengthen, to spiritualize, and to sanctify the soul of the people"--if it fails in this, is it not obvious that after every disappointment, which, alas! is more than probable, there will be a no less inevitable revolution? i shall now resume the subject by remarking, that immediately after the economical part [4] of the question, and before the political part, a leading question presents itself. it is the following: what is law? what ought it to be? what is its domain? what are its limits? where, in fact, does the prerogative of the legislator stop? i have no hesitation in answering, law is common force organized to prevent injustice;--in short, law is justice. it is not true that the legislator has absolute power over our persons and property, since they pre-exist, and his work is only to secure them from injury. it is not true that the mission of the law is to regulate our consciences, our ideas, our will, our education, our sentiments, our works, our exchanges, our gifts, our enjoyments. its mission is to prevent the rights of one from interfering with those of another, in any one of these things. law, because it has force for its necessary sanction, can only have the domain of force, which is justice. and as every individual has a right to have recourse to force only in cases of lawful defense, so collective force, so which is only the union {50} of individual forces, cannot be rationally used for any other end. the law, then, is solely the organization of individual rights that existed before law. law is justice. so far from being able to oppress the people, or to plunder their property, even for a philanthropic end, its mission is to protect the people, and to secure to them the possession of their property. it must not be said, either, that it may be philanthropic, so long as it abstains from all oppression; for this is a contradiction. the law cannot avoid acting upon our persons and property; if it does not secure them, then it violates them if it touches them. the law is justice. nothing can be more clear and simple, more perfectly defined and bounded, or more visible to every eye; for justice is a given quantity, immutable and unchangeable, and which admits of neither increase or diminution. depart from this point, make the law religious, fraternal, equalizing, industrial, literary, or artistic, and you will be lost in vagueness and uncertainty; you will be upon unknown ground, in a forced utopia, or, what is worse, in the midst of a multitude of contending utopias, each striving to gain possession of the law, and to impose it upon you; for fraternity and philanthropy have no fixed limits, as justice has. where will you stop? where is the law to stop? one person, mr. de saint cricq, will only extend his philanthropy to some of the industrial classes, and will require the law to slight the consumers in favor of the producers. another, like mr. considérant, will take up the cause of the working classes, and claim for them by means of the law, at a fixed rate, clothing, lodging, food, and {51} everything necessary for the support of life. a third, mr. louis blanc, will say, and with reason, that this would be an incomplete fraternity, and that the law ought to provide them with tools of labor and education. a fourth will observe that such an arrangement still leaves room for inequality, and that the law ought to introduce into the most remote hamlets luxury, literature, and the arts. this is the high road to communism; in other words, legislation will be--as it now is--the battlefield for everybody's dreams and everybody's covetousness. law is justice. in this proposition we represent to ourselves a simple, immovable government. and i defy anyone to tell me whence the thought of a revolution, an insurrection, or a simple disturbance could arise against a public force confined to the repression of injustice. under such a system, there would be more well-being, and this well-being would be more equally distributed; and as to the sufferings inseparable from humanity, no one would think of accusing the government of them, for it would be as innocent of them as it is of the variations of the temperature. have the people ever been known to rise against the court of appeals, or assail the justices of the peace, for the sake of claiming the rate of wages, free credit, tools of labor, the advantages of the tariff, or the social workshop? they know perfectly well that these matters are beyond the jurisdiction of the justices of the peace, and they would soon learn that they are not within the jurisdiction of the law quite as much. but if the law were to be made upon the principle of fraternity, if it were to be proclaimed that from it proceed all benefits and all evils--that it is responsible for every individual grievance and for every social inequality--then {52} you open the door to an endless succession of complaints, irritations, troubles, and revolutions. _law is justice_. and it would be very strange if it could properly be anything else! is not justice right? are not rights equal? with what show of right can the law interfere to subject me to the social plans of messrs. mimerel, de melun, thiers, or louis blanc, rather than to subject these gentlemen to my plans? is it to be supposed that nature has not bestowed upon me sufficient imagination to invent a utopia too? is it for the law to make choice of one amongst so many fancies, and to make use of the public force in its service? _law is justice_. and let it not be said, as it continually is, that the law, in this sense, would be atheistic, individual, and heartless, and that it would mold mankind in its own image. this is an absurd conclusion, quite worthy of the governmental infatuation which sees mankind in the law. what then? does it follow that if we are free, we shall cease to act? does it follow that if we do not receive an impulse from the law, we shall receive no impulse at all? does it follow that if the law confines itself to securing to us the free exercise of our faculties, our faculties will be paralyzed? does it follow, that if the law does not impose upon us forms of religion, modes of association, methods of education, rules for labor, directions for exchange, and plans for charity, we shall plunge headlong into atheism, isolation, ignorance, misery, and greed? does it follow, that we shall no longer recognize the power and goodness of god; that we shall cease to associate together, to help each other, to love and assist our unfortunate brethren, to {53} study the secrets of nature, and to aspire after perfection in our existence? _law is justice_. and it is under the law of justice, under the reign of right, under the influence of liberty, security, stability, and responsibility, that every man will attain to the fullness of his worth, to all the dignity of his being, and that mankind will accomplish with order and with calmness--slowly, it is true, but with certainty--the progress ordained for it. i believe that my theory is correct; for whatever be the question upon which i am arguing, whether it be religious, philosophical, political, or economical; whether it affects well-being, morality, equality, right, justice, progress, responsibility, property, labor, exchange, capital, wages, taxes, population, credit, or government; at whatever point of the scientific horizon i start from, i invariably come to the same thing--the solution of the social problem is in liberty. and have i not experience on my side? cast your eye over the globe. which are the happiest, the most moral, and the most peaceable nations? those where the law interferes the least with private activity; where the government is the least felt; where individuality has the most scope, and public opinion the most influence; where the machinery of the administration is the least important and the least complicated; where taxation is lightest and least unequal, popular discontent the least excited and the least justifiable; where the responsibility of individuals and classes is the most active, and where, consequently, if morals are not in a perfect state, at any rate they tend incessantly to correct themselves; where transactions, meetings, and associations are the least fettered; where labor, capital, and production suffer the least from artificial {54} displacements; where mankind follows most completely its own natural course; where the thought of god prevails the most over the inventions of men; those, in short, who realize the most nearly this idea that within the limits of right, all should flow from the free, perfectible, and voluntary action of man; nothing be attempted by the law or by force, except the administration of universal justice. i cannot avoid coming to this conclusion--that there are too many great men in the world; there are too many legislators, organizers, institutors of society, conductors of the people, fathers of nations, etc., etc. too many persons place themselves above mankind, to rule and patronize it; too many persons make a trade of looking after it. it will be answered--"you yourself are occupied upon it all this time." very true. but it must be admitted that it is in another sense entirely that i am speaking; and if i join the reformers it is solely for the purpose of inducing them to relax their hold. i am not doing as vaucauson did with his automaton, but as a physiologist does with the human frame; i would study and admire it. i am acting with regard to it in the spirit that animated a celebrated traveler. he found himself in the midst of a savage tribe. a child had just been born, and a crowd of soothsayers, magicians, and quacks were around it, armed with rings, hooks, and bandages. one said--"this child will never smell the perfume of a calumet, unless i stretch his nostrils." another said--"he will be without the sense of hearing, unless i draw his ears down to his shoulders." a third said--"he will never see the light of the sun, unless i give his eyes an oblique direction." a fourth said--"he will never be upright, unless i bend his legs." a fifth said--"he will not be able to think, unless i press his {55} brain." "stop!" said the traveler. "whatever god does, is well done; do not pretend to know more than he; and as he has given organs to this frail creature, allow those organs to develop themselves, to strengthen themselves by exercise, use, experience, and liberty." god has implanted in mankind also all that is necessary to enable it to accomplish its destinies. there is a providential social physiology, as well as a providential human physiology. the social organs are constituted so as to enable them to develop harmoniously in the grand air of liberty. away, then, with quacks and organizers! away with their rings, and their chains, and their hooks, and their pincers! away with their artificial methods! away with their social laboratories, their governmental whims, their centralization, their tariffs, their universities, their state religions, their inflationary or monopolizing banks, their limitations, their restrictions, their moralizations, and their equalization by taxation! and now, after having vainly inflicted upon the social body so many systems, let them end where they ought to have begun--reject all systems, and try liberty--liberty, which is an act of faith in god and in his work. footnotes: [footnote 1: first published in 1850.] [footnote 2: general council of manufactures, agriculture, and commerce, 6th of may, 1850.] [footnote 3: if protection were only granted in france to a single class, to the engineers, for instance, it would be so absurdly plundering, as to be unable to maintain itself. thus we see all the protected trades combine, make common cause, and even recruit themselves in such a way as to appear to embrace the mass of the national labor. they feel instinctively that plunder is slurred over by being generalized.] [footnote 4: political economy precedes politics: the former has to discover whether human interests are harmonious or antagonistic, a fact which must be settled before the latter can determine the prerogatives of government.] index action, human. see individualism; mankind agriculture analogy to society, 35 persian, 26 antiquity. see greece; rome authority. see government beggars, 11 billaud-varennes, jean nicolas, 38 blanc, louis competition, 45 doctrine, 42, 43 force of society, 47, 48 labor, 42 law, 50, 52 bonaparte, napoleon, 41 bossuet, jacques bénigne, 25, 26 cabetists, 46, 47 capital displacement, 2 carlier, pierre, 13 carthage, 32 charity, vii, 5, 17 see also wealth, equality of; welfare classical studies, 25, 26, 36, 37, 38 collectivism, 2, 3 see also government communism, 18 competition meaning, 45 results, 45 condillac, étienne bonnot de, 35, 38 constituent assembly, 24 conventionality, 37 crete, 28 defense right of, 2, 3, 37, 49, 50 democracy, vi, 43, 44 democrats, 43 dictatorship, vii, 39, 40 disposition, fatal, 5, 37, 38 distribution, 33, 34 dole, 10, 11 see also welfare dupin, charles, 13 education classical, 26, 38 controlled, 33 greek, 26 {57} {58} liberty in, 44 free, 21, 22 government provided, 22, 48 egypt, 25, 26, 27 elections, 43, 44 see also voting employment assigned, 26 see also labor equality of wealth, 11, 20, 29, 36 fénelon, françois de salignac de la mothe antiquity, 27, 29 telemachus, 27 force common or collective, 2, 3 individual, 2, 3 motive, of society, 40, 43 see also government; law forced conformity, viii fourier, françois marie charles, 41 fourierists, 46 france revolutions, 47 fraternity legally enforced, 16, 17, 21, 22 fraud, 13, 14 freedom. see liberty french revolution, 38 public services, 10, 11 purpose of, v relaxed, 35 republican, 30, 39 responsibility and, 3, 47, 48, 51 results, 28 stability, 31 virtue, 39 see also communism, socialism greece education, 26 law, 26, 27 republic, 29, 30 sparta, 32, 36, 38 greed, 5 happiness of the governed, 28 history, 5 humanity lost, 19, 20 imports. see trade individualism, 3 industry, protected. see protectionism jobs. see employment justice and injustice, distinction between, 7 generalized, 7 immutable, 49, 50 intentions and, 17, 18 law and, 3, 6, 49 reigning, 19 general welfare, 19 government american ideal of, v corrupting education by, vi democratic, 29, 43, 44 education, 23, 48 force, 2, 3 function, 38 monopoly, 45 morality, 39 motive force, 40, 43 power, v, 47 labor displaced, 4 land. see property law cretan, 28 defined, 2, 16 {59} egyptian, 25, 26, 27, 28 fraternity and, 17 functions, 16, 31, 33, 49, 50 greek, 26, 28, 29 justice and, 3, 4, 16, 51 morality and, 7, 21 motive force, 25 object of, 19 omnipotence, 44, 49 persian, 26 perverted, v, 1, 5 philanthropic, 17 plunder and, 5, 13 posterior and inferior, 2, 3 respect for, 7, 9 rousseau's views, 31, 33, 38 spirit of, 32 study of, 25 united states, 12 see also legislation lamartine, alphonse marie louis de, fraternity, 17 government power, 48, 49 lawgiver, 38, 43 legislation conflict in, 32 monopoly on, 5 struggle for control of, 11, 12 universal right of, 7 see also law legislator. see lawgiver; politicians lepéletier, louis michel de saint fargeau, 39 liberty competition and, 44, 45 defined, 42 denied, 44, 45 described, 53 education and, 44, 45 individual, 3 as power, 43 returned to, 55 seeking, 38 life, faculties of, 1 louis xiv 27 lycurgus government, 30, 35, 36 influence, 33, 40 mably, abbé gabriel bonnot de, 35, 39 mankind assimilation, 2 concern for, 54 degraded, 25 divided, 23 inert, 23, 25, 26, 28, 31, 35, 36, 38, 39, 42, 43, 44, 47 inertia, 44 as machine, 31 nature of, 33 violation of, 52 melun, armand de, 52 mentor, 28, 29 mimerel de roubaix, pierre auguste remi, 52 monopoly, 5, 45 montalembert, charles, comte de, 13, 15 montesquieu, charles louis de secondât, baron de, 29, 31 morality law and, 21, 22 morelly, 41 napoleon, 41 natural rights, v nature, gifts of, 1 oliver de serres, guillaume antoine, 29 order, 3 owen, robert, 41 ownership. see property paraguay, 30 persia, 26 {60} personality, 2 phalansteries, 55 philanthropy. see charity plato republic, 30 plunder absence of, 16 burdens of, 5, 6 defined, 17 general welfare and, 19 extralegal, 13 kinds, 13 legal, v, ix, 6, 13, 22 organized, 14 origin of, 6 partial, 15, 16 socialistic, 13 universal, 15, 16 politicians dreams of, 36 genius of, 30 goodness of, 25 importance of, 22, 23 responsibility of, 27 social engineers, 22, 24, 32, 34, 37, 38, 40, 42, 44, 45 superior, 46, 54 politics exaggerated importance of, 8 and favors, vi plunder through, vi poor relief. see charity; welfare power. see government property man and, 2 origin of, 5 protectionism, 18 united states, 12 proudhonians, 46 providence, 55 public relief, 10, 20, 29 raynal, abbé guillaume, 33, 35 religion, state, 22 rent seeking, vi, vii republic kinds of, 29 virtues of, 39 revolt, 6 revolution, 47 french, 38 rhodes, 32 rights individual, v, 2, 3 roberspierre, jean jacques government, 38 lawgiver, 40 rome virtue, 32 rousseau, jean jacques disciples, 8, 9 on the lawgiver, 31, 33 saint-cricq, barthélémy, pierre laurent, comte de, 50 saint-just, louis antoine léon de, 38 saint-simon, claude henri, comte de doctrine, 41 salentum, 27, 29 security consequences, 3 self-defense, 2, 37, 49, 50 selfishness, 5 serres, oliver de, 29 slavery, united states, viii, 12 universality, 5 socialism confused, ix, 22 defined, 14, 15 disguised, 22 experiments, 23, 24 legal plunder, 13 sincerely believed, 18 social engineers, 22, 24 refutation of, 15 socialists, vii society enlightened, 37 {61} experiments, 23 motive force, 40, 43 object of, 36, 37 parable of the traveler, 54, 55 solon, 33, 35 sparta, 32, 36 spoliation. see plunder state. see government suffrage. see universal suffrage tariffs, vi, viii telemachus, 27 terror as means of republican government, 39, 40 theirs, louis adolphe doctrine, 52 education, 45 tyre, 32 united states, viii, 12 declaration of independence, v universal suffrage demand for, 9, 43, 44, 46, 47 importance of, 10 incapacity and, 9 objections, 9 vaucanson, jacques de, 54 vested interests, 13, 14 virtue and vice, 28, 30, 35, 36, 40 voting responsibility and, 9, 10 right of, 10 see also universal suffrage want satisfaction, 4 wealth equality of, 11, 21, 29, 36 transfer of, vii welfare, 10, 20, 28 the law perverted! the law--and, in its wake, all the collective forces of the nation. the law, i say, not only diverted from its proper direction, but made to pursue one entirely contrary! the law becomes the tool of every kind of avarice, instead of being its check! the law guilty of that very inequity which it was its mission to punish! truly, this is a serious fact, if it exists, and one to which i feel bound to call the attention of my fellow-citizens. --frédéric bastiat the law's lumber room _of this edition 600 copies have been printed for england and america._ the law's lumber room by francis watt london john lane, the bodley head, vigo st. chicago: a. c. mcclurg & co. mdcccxcv to william ernest henley flotsam and jetsam from his old journal prefatory to the lumber room you drag furniture no longer fit for daily use, and there it lies, old fashioned, cumbrous, covered year by year with fresh depths of dust. is it fanciful to apply this image to the law? has not that its lumber room of repealed statutes, discarded methods, antiquated text-books--"many a quaint and curious volume of forgotten lore"? but law, even when an actual part of the life of to-day is like to prove a tedious thing to the lay reader, can one hope to find the dry bones of romance in its antiquities? i venture to answer, "yes." among all the rubbish, the outworn instruments of cruelty, superstition, terror, there are things of interest. "benefit of clergy," the "right of sanctuary," bulk large in english literature; the "law of the forest" gives us a glimpse into the life of mediæval england as actual as, though so much more sombre than, the vision conjured up in chaucer's magic _prologue_. "trial by ordeal" and "wager of battle" touch on superstitions and beliefs that lay at the very core of the nation's being. "as full of fictions as english law," wrote macaulay in the early part of the century; but we have changed that, we are more practical, if less picturesque, and john doe and all his tribe are long out of date. between the reign of james i. and that of victoria all the subjects here discussed have suffered change, with one exception. the "press-gang" is still a legal possibility, but how hard to fancy it ever again in actual use! i fear that these glimpses of other days may seem harsh and sombre; there is blood everywhere; the cruel consequences of law or custom are pushed to their logical conclusions with ruthless determination. the contrast to the almost morbid sentimentalism of to-day is striking. so difficult it seems to hit the just mean! but the improvement is enormous. gibes at the law are the solace of its victims, and no one would deprive them of so innocent a relief, yet if these cared to enquire they would often find that the mark of their jest had vanished years ago to the lumber room. the plan of these papers did not permit a detailed reference to authorities, but i have mentioned every work from which i derived special assistance. i will only add that this little book originally appeared as contributions to the _national observer_ under mr w. e. henley's editorship. i have made a few additions and corrections. contents page benefit of clergy 1 peine forte et dure 10 a passage in shakespeare (fines and recoveries) 26 the custom of the manor 36 deodands 54 the law of the forest 62 par nobile fratrum (john doe and richard roe) 74 sanctuary 84 trial by ordeal 98 wager of battle 107 the press gang 120 sumptuary laws 129 benefit of clergy "benefit of clergy" is a phrase which has entered into english literature and english thought. the thing itself exists no longer, though the last traces of it were only removed during the present reign; but it so strikingly illustrates certain peculiarities of english law-making, it has, moreover, so curious a history as to be interesting even to-day. it took its rise in times when the pretensions of the church, high in themselves, were highly favoured by the secular power. the clergy was a distinct order, and to subject its members to the jurisdiction of the secular courts was deemed improper; so, when a clerk was seized under a charge of murder, or some other crime, the ordinary stepped forth and claimed him for the "court christian," whereto the whole matter was at once relegated. there the bishop or his deputy sat as judge. there was a jury of twelve clerks before whom the prisoner declared his innocence on oath. he was ready with twelve compurgators (a species of witnesses to character) who, after their kind, said more good of him than they had any warrant for; after which, on the question of fact, some witnesses were examined for, but none against him. this curious proceeding, which was not abolished till the time of elizabeth, soon became a sham. nearly every accused got off, and the rare verdict of guilty had no worse result than degradation or imprisonment. now, so far, the system is intelligible, but in the succeeding centuries it lost this quality. english legal reformers have ever shown a strong disinclination to make a clean sweep of a system, but they keep tinkering at it year after year with a view of making it more rational or better adapted to current needs. they did so here, and the result was a strange jumble of contradictions. first, the privilege was confined to such as had the clerical dress and tonsure, afterwards it was extended to mere assistants, the very door-keepers being held within the charmed circle; yet the line had to be drawn somewhere, and how to decide when every ruffian at his wits' end for a defence was certain with blatant voice to claim the privilege? well, could he read? if so, ten to one he was an ecclesiastic of some sort, and therefore entitled to his clergy. and it soon came that this was the only test demanded. if you could read you were presumed a parson, and had your right to at least one crime free. as no woman could possibly be ordained, she could not "pray her clergy"--(an exception was made in the case of a professed nun)--nor might a _bigamus_, who was not a man who had committed bigamy, but one who "hath married two wives or one widow." however, a statute (1 edw. vi., c. 12, s. 16, _temp._ 1547) made an end of this latter distinction by declaring, with quaint tautology that _bigami_ were to have their clergy, "although they or any of them have been divers and sundry times married to any single woman or single women, or to any widow or widows, or to two wives or more." before this it might well be that your chance of saving your neck depended on whether you had married a widow or not; which species was dangerous in a sense undreamt of by mr weller. as regards the reading, it must not be supposed that a difficult examination was passed by the prisoner before he escaped. you had but to read what came to be significantly called the neck-verse from the book which the officer of court handed you when you "prayed your clergy." the neck-verse was the first verse of the fifty-first psalm in the vulgate. it was only three words--_miserere mei, deus_: "have mercy on me, o god." it seems strange that it was ever recorded of anyone that he did not read, and was therefore condemned to be hanged; for surely it were easy to get these words by heart and to repeat them at the proper time? this must have been done in many cases, and yet sometimes criminals were so densely ignorant and stupid, or it might be merely bewildered, that they failed; then the wretch paid the penalty of his life. "_suspendatur_," wrote the scribe against his name, and off he was hauled. the endless repetition of this word proved too much for official patience, and with brutal brevity the inscription finally appears, "sus." or "s." and now the neck-verse was free to everyone were he or were he not in holy orders, and he claimed the privilege after conviction, but in the reign of henry vii. (1487) an important change was made. a person who claimed clergy was to be branded on the crown of his thumb with an "m" if he were a murderer, with a "t" if he were guilty of any other felony; if he "prayed his clergy" a second time this was refused him, unless he were actually in orders. of course the mark on the thumb was to record his previous escape from justice. it was with this "tyburn t" (as it was called in elizabethan slang) that ben jonson was branded. it is only within the last few years that careful mr cordy jeaffreson has exhumed the true story from the middlesex county records. the poet quarrelled and fought a duel with gabriel spencer, an actor, and probably a former colleague. the affair came off at shoreditch. jonson, with his rapier, which the indictment (for a reason explained in the chapter on "deodands") values at three shillings, briskly attacked his opponent, and almost immediately gave him a thrust in the side, whereof spencer died then and there. ben was forthwith seized and thrown into prison. whilst waiting his trial he said that spies were set on him, but he was too much for them, and afterwards all the judges got from him was but "ay" and "no." why spies should have been necessary in so plain a case is far from clear. it is more significant that a devoted priest succeeded in converting him for the time to roman catholicism, and he afterwards confessed to drummond of hawthornden that he had come near the gallows. however, what he said, or did not say, is of little weight as compared with the evidence of contemporary judicial records. the fact is clear that the poet of _every man in his humour_, the cunning artist of _queen and huntress_, and _drink to me only with thine eyes_, had a true bill found against him by the grand jury, who sat, by the way, in a tavern, for as yet hicks hall, the predecessor of the session's-house on clerkenwell green, was not. in october 1598, he was taken to the old bailey to stand his trial. he pleaded guilty, asked for the book, read like a clerk ("jonson's learned sock," forsooth!), and as the strangely abbreviated latin of the record has it, "_sign' cum lra' t et del_," that is, marked with the letter "t," and set at large to repair to "the sun," "the bolt," "the triple tun," or some other of those dim, enchanting elizabethan taverns, there to give such an account of the transaction as sufficed to dissemble it till this age of grubbers and dictionaries wherein you are destined to nose every ancient scandal as you go up the staircase of letters. it has been suggested that the officer, moved to inexplicable tenderness, touched him with a cold iron. the only ground for this is that dekker, in his savage satiro mastix; or, _the untrussing of the humourous poet_, makes no reference to the "tyburn t." one fancies that ben speedily acquired a trick of carrying his hand so that the mark was not readily seen, or he may have cut or burnt it out as others did. all the same, the best evidence shows it to have been there. in the reign of james i. another change was made. women got the benefit of clergy in certain cases, and afterwards they were put on the same footing as men. then in 1705 the necessity for reading was abolished, and in 1779 so was branding. but another process was going on all this time. a great and ever-increasing number of crimes were declared to be without benefit of clergy. the selection was somewhat capricious. among the exempted felonies were abduction with intent to marry, stealing clothes off the racks, stealing the kings' stores, and so on. naturally the whole subject fell into inextricable confusion, and when it was abolished in 1827, even pedants must have given a sigh of relief. one detail escaped the reformer: since the time of edward vi. every peer ("though he cannot read," saith the statute) enjoyed a privilege akin to that of clergy, and it was not till 1841 that this last vestige of the system vanished from the statute-book. i will only add that, in its details, "benefit of clergy" was even more grotesque and fantastic than it has here been possible to set forth. peine forte et dure in england during many centuries a prisoner was called to the bar before trial and enjoined to hold up his right hand, by which act he was held to admit himself the person named in the indictment. the clerk then asked him, "how say you, are you guilty or not guilty?" if he answered, "not guilty," the next question was: "culprit, how will you be tried?" to which he responded, "by god and my country." "god send you a good deliverance," rejoined the official, and the trial went forward. if the accused missed any of these responses, or would not speak at all, and if the offence were treason or a misdemeanour, his silence was taken for confession of guilt, and sentence was passed forthwith. if the charge were felony, a jury was empanelled to try whether he stood "mute of malice," or "mute by the visitation of god." if this last were found, the trial went on; if the other, he was solemnly warned by the judges of the terrible consequences summed up by lord coke (trial of sir richard weston in 1615, for sir thomas overbury's murder) in the three words--_onere, frigore, et fame_. the proceedings were most commonly adjourned to give him time for reflection; but if after every exhortation he remained obdurate, then he was adjudged to suffer the _peine forte et dure_. the judgment of the court was in these words: "that you return from whence you came, to a low dungeon into which no light can enter; that you be stripped naked save a cloth about your loins, and laid down, your back upon the ground; that there be set upon your body a weight of iron as great as you can bear--and greater; that you have no sustenance, save on the first day three morsels of the coarsest bread, on the second day three draughts of stagnant water from the pool nearest the prison door, on the third day again three morsels of bread as before, and such bread and such water alternately from day to day; till you be pressed to death; your hands and feet tied to posts, and a sharp stone under your back." there is but one rational way to discuss an institution of this sort. let us trace out its history, for thus only can we explain how it came to have an existence at all. for the prisoner himself there was usually a very strong reason why _he_ should stand mute. if he were convicted of felony his goods were forfeited; while in case of capital felony, the result of attainder was corruption of blood so that he could neither inherit nor transmit landed property. often he must have known that conviction was certain. had he fondness enough for his heirs--children or other--to make him choose this hideous torture instead of milder methods whereby the law despatched the ordinary convict from this world? well, very many underwent the punishment. between 1609-1618 the number was thirty-two (three of them women) in rural middlesex alone. "_mortuus en pen' fort' et dur'_," so the clerk wrote for epitaph against each name, and something still stranger than the penalty itself is revealed to us by an examination of the original records. many of the culprits were evidently totally destitute, and these underwent the _peine forte et dure_ from stupidity, obstinacy, or sheer indifference to mortal suffering and death. the custom of pressing did not obtain its full development at once, and there is some difficulty as to how it began. a plausible explanation is given in pike's "history of crime," and is supported by the authority of the late mr justice stephen. at one time a man charged with a serious offence was tried by ordeal; but by paying money to the king, it was possible to get the exceptional privilege of a trial by jury. thus, when the accused was asked how he would be tried, his answer originally ran, "by god" (equal to by ordeal), or "by my country" (equal to by jury), since to put yourself on the country meant to submit yourself to this last. but trial by ordeal was abolished about 1215, and the alternative was a privilege to be claimed, not a necessity to be endured. offenders soon discovered that by standing mute and declining to claim this privilege, they put the court in a difficulty. the ideas of those distant days were simple exceedingly, and a legal form had strange force and efficacy. to put a prisoner before a jury without his consent was not to be thought of; but how to get his consent? at first the knot was rather cut than loosened. thus, in some cases, the accused were put to death right off for not consenting to be tried "according to the law and custom of the realm." then this was held too severe, and under edward i., in the proceedings of the parliament of westminster, occurs the earliest definite mention of the punishment. it was enacted that notorious felons refusing to plead should be confined in the _prison forte et dure_. here they went "barefooted and bareheaded, in their coat only in prison, upon the bare ground continually night and day, fastened down with irons," and only eating and drinking on alternate days as already set forth. it was bad enough, no doubt, but not of necessity fatal. so the authorities perceived, and they again cut the knot by a policy of starvation. so one infers from the case of cecilia, wife of john rygeway, in the time of edward iii. cecilia was indicted for the murder of her husband; she refused to plead. being committed to prison, she lived without meat or drink for forty days; and this being set down to the virgin mary, she was thereupon allowed to go free. this procedure seems to have been found too slow, and the increase of business at the assizes seemed like to end in a hopeless block. were the judges to encamp in a country town while the prisoners made up their mind as to pleading? something was wanted to "mend or end" the stubborn rascals; and under henry iv., in the beginning of the fifteenth century, the "prison" _forte et dure_ became the "peine" _forte et dure_: with the consequence that, if the accused declined to plead, there was an end of him in a few hours, the provision of bread and water being a mere remnant of the older form of sentence. this procedure lasted till 1772, when the 12 geo. iii., c. 20 made "standing mute in cases of felony equivalent to conviction." in 1827 it was enacted by 7 and 8 geo. iv., c. 28, "that in such cases a plea of not guilty should be entered for the person accused." the curious formal dialogue between the clerk and the prisoner was abolished that same year. something stronger than exhortation was now and again used before the obdurate prisoner was sentenced to pressing, thus at the old bailey in 1734, the thumbs of one john durant were tied together with whipcord, which the executioner strung up hard and tight in presence of the court; he was promised the _peine forte et dure_ if this did not answer, but upon a little time being given him for reflection, he speedily made up his mind to plead not guilty. it is difficult to explain the distinction drawn between ordinary felony on the one hand and treason and misdemeanours on the other. perhaps the explanation is that the last, being much lighter offences, were never made the subject of trial by ordeal, and that treason being a crime endangering the very existence of the state, a sort of necessity compelled the judge to proceed in the most summary manner. no student of english history needs to be reminded that a trial for treason resulted almost as a matter of course in a conviction for treason. peers of the realm had many privileges, but they were not exempt from the consequences of standing mute. nor, as already noted, were women. perhaps it were unreasonable to expect a criticism of the system from contemporary judges or text writers; but what they did say was odd enough; they did not condemn pressing, but they highly extolled the clemency of the law which directed the court to reason with and admonish the accused before it submitted him to this dread penalty. i shall now give some examples of practice. fortunately (or unfortunately you may think as you read) we have at least one case recorded in great detail, though, curiously enough, it has escaped the notice of an authority so eminent as mr justice stephen. margaret clitherow was pressed to death at york on lady day, march 25th, 1586, and the story thereof was written by john mush, secular priest, and her spiritual director. margaret's husband was a protestant, though his brother was a priest, and all his children appear to have been of the older faith. accused of harbouring jesuit and seminary priests, of hearing mass, and so on, she was committed to york castle, and in due time was arraigned in the common hall. in answer to the usual questions, she said that she would be tried "by god and by your own consciences," and refused to make any other answer. it was sheer obstinacy: she was a married woman, and she could have lost nothing by going to trial. but she coveted martyrdom, which everybody concerned appears, at first at any rate, to have been anxious to deny her. it was plainly intimated that if she would let herself be tried she would escape: "i think the country," said clinch, the senior judge, "cannot find you guilty upon the slender evidence." the proceedings were adjourned, and the same night "parson whigington, a puritan preacher," came and argued with her, apparently in the hope of persuading her to plead; but he failed to change her purpose; the next day she was brought back to the hall. something of a wrangle ensued between herself and clinch, and in the end the latter seemed on the point of pronouncing sentence. then whigington stood up and began to speak; "the murmuring and noise in the hall would not suffer him to be heard;" but he would not be put off, and "the judge commanded silence to hear him." he made a passionate appeal to the court ("did not perhaps god open the mouth of balaam's ass?" is the somewhat ungracious comment of father mush.) "my lord," said he, "take heed what you do. you sit here to do justice; this woman's case is touching life and death, you ought not, either by god's law or man's, to judge her to die upon the slender witness of a boy;" with much more to the same effect. clinch was at his wits' end, and went so far as to entreat the prisoner to plead in the proper form: "good woman, i pray you put yourself to the country. there is no evidence but a boy against you, and whatsoever they (the jury) do, yet we may show mercy afterwards." she was moved not a whit; and then rhodes, the other judge, broke in: "why stand we all day about this naughty, wilful woman?" yet once again she was entreated, but as vainly as before; it was evident that the law must take its course; and "then the judge bade the sheriff look to her, who pinioned her arms with a cord." she was carried back to prison through the crowd, of whom some said, "she received comfort from the holy ghost;" others, "that she was possessed of a merry devil." when her husband was told of her condemnation, "he fared like a man out of his wits, and wept so vehemently that the blood gushed out of his nose in great quantity." some of the council suggested that she was with child. there seems to have been some foundation for the remark, at any rate, clinch caught eagerly at the idea. "god defend she should die if she be with child," said he several times, when the sheriff asked for directions, and others of sterner mould were pressing for her despatch. kind-hearted whigington tried again and again to persuade her; and the lord mayor of york, who had married her mother ("a rich widow which died before this tragedy the summer last"), begged her on his knees, "with great show of sorrow and affection," to pronounce the words that had such strange efficacy. it was all in vain, so at last even whigington abandoned his attempt, and "after he had pitied her case awhile, he departed and came no more." her execution was fixed for friday, and the fact was notified to her the night before. in the early morning of her last day on earth she quietly talked the matter over with another woman. "i will procure," the woman said, "some friends to lay weight on you, that you may be quickly despatched from your pain." she answered her that it must not be. at eight the sheriffs came for her, and "she went barefoot and barelegged, her gown loose about her." the short street was crowded with people to whom she dealt forth alms. at the appointed place, one of the sheriffs, "abhorring the cruel fact, stood weeping at the door;" but the other, whose name was fawcett, was of harder stuff. he "commanded her to put off her apparel," whereupon she and the other woman "requested him, on their knees, that she might die in her smock, and that for the honour of womankind they would not see her naked." that could not be granted, but they were allowed to clothe her in a long habit of linen she had herself prepared for the occasion. she now lay down on the ground. on her face was a handkerchief. a door was laid upon her. "her hands she joined towards her face"; but fawcett said they must be bound, and bound they were to two posts, "so that her body and her arms made a perfect cross." they continued to vex the passing soul with vain words, but at last they put the weights on the door. in her intolerable anguish she gave but a single cry: "jesu! jesu! jesu! have mercy upon me!" then there was stillness; though the end was not yet. "she was in dying one quarter of an hour. a sharp stone as much as a man's fist put under her back, upon her was laid a quantity of seven or eight hundredweight to the least, which, breaking her ribs, caused them, to burst forth of the skin." it was now nine in the morning, but not till three of the afternoon were the braised remains taken from the press. stories of violence and cruelty serve not our purpose unless they illustrate some point, and i shall but refer to two other cases. major strangeways was arraigned in 1658 (under the commonwealth be it noted) for the murder of his brother-in-law. in presence of the coroner's jury he was made to take the corpse by the hand and touch its wounds, for it was supposed that, if he were guilty, these would bleed afresh. there was no bleeding, but this availed him nothing, and he was put on his trial at the old bailey in due course. he refused to plead, and made no secret of his motive; he foresaw conviction, and desired to prevent the forfeiture of his estate. he was ordered to undergo the _peine forte et dure_. the press was put on him angle-wise; it was enough to hurt, but not to kill, so the bystanders benevolently added their weight, and in ten minutes all was over. the dead body was then displayed to the public. again, in 1726, a man named burnworth was arraigned at kingston for murder. at first he refused to plead, but after being pressed for an hour and three-quarters with four hundredweight of iron, he yielded. he was carried back to the dock, said he was not guilty, and was tried, convicted, and hanged. there was at least one case in the reign of george ii.--but enough of such horrors. a passage in shakespeare fines and recoveries "is this the fine of his fines, and the recovery of his recoveries, to have his fine pate full of fine dust? will his vouchers vouch him no more of his purchases, and double ones too, than the length and breadth of a pair of indentures?" thus the prince of denmark moralising in the graveyard scene in hamlet over the skull of a supposed lawyer: with more to the same effect, all showing that shakespeare had a knowledge of law terms remarkable in a layman, and that he used them with curious precision. in the huge body of shakespearian literature there are special works (one by lord chancellor campbell) on the fact, which has been used to buttress up the baconian authorship theory (indeed, it is the only positive fact at all in point). again, it has been conjectured that the dramatist spent some time in a lawyer's office, and that phrases from the deeds he engrossed stuck in his memory. it is far more likely that, being the man of his age he was, he would read in and round the law as well as much else for its own sake, and that fines and recoveries were so odd in themselves, and so excellently illustrative of english history and procedure, that they fairly took his mighty fancy. recoveries were already some two hundred years old in his time, and, to judge from the tone of the passage, people must even then have held them in derision. but they were to last full two hundred years more; for not till 1833 did they vanish from the scene. recoveries were methods of disentailing an estate by means of a complicated series of fictions. they arose in this way:--before 1285, when land was given to a man and the heirs of his body, the judges ruled that, the moment a son was born, the father held the estate as a simple freehold, which he could sell or make away with very much as he chose. the great landowners were ill-content at this; they meant their tenants to enjoy their estates only as long as they rendered useful service in return, and if issue failed a man, they thought the land should revert to his lord on his death. hence in that year an act procured by their influence, called _de donis conditionalibus_, or the statute of westminster the second (13 ed. i., c. 1), created the estate tail (_i.e._ _taillé_, or restricted). it provided that land given to a man and his heirs as above, reverted to the original donor on failure of the donee's issue. blackstone waxes eloquent over the evils that ensued. children declined obedience to a father who could not disinherit; farmers lost their leases, which had no force against the heir; and creditors were defrauded of their debts, which constituted no charge on the land, nay, treasons were fostered, insomuch as the traitor's interest lapsing at his death, nothing was left for the king to seize. yet it was not till the reign of edward iv. that a device was found to evade the statute. _taltarum's case_ was decided in 1472. it is loosely said that this established the validity of recoveries, but they were in use some time before, and sir frederick pollock will have it that it was the oddity of the name which made a landmark of the decision. a recovery was a sort of friendly or fictitious action, whereby the estate was adjudged to an outsider, whose claim, though baseless--if one did not look beyond the four corners of the action--was acquiesced in by the nominal defendant. the mediæval lawyer was usually a priest, and he had found those entails grievous obstacles in the way of the church's aggrandisement. perhaps, too, as the country grew in wealth, so rigid a law of settlement bore hard on an ever-waxing commercial class. to repeal the statute seemed impossible, but the great landowners, while proof against force and impermeable to argument, were not hard to outwit. a legal complication passed their understanding; and this one, however brazen, had the patronage of many powerful interests. thus, and thus only, may the fact of their acquiescence be explained. and now let us trace out the steps in a common recovery with "double voucher." the judges had already made one preparatory breach in the law. a tenant in tail could dispose of his estate if he left other lands of the same value; for these his heirs held under the same conditions as the original property. the principle of this decision was ingeniously used as a lever to overthrow the system. suppose a, tenant in tail, had contracted to sell his land to b: he began by formally disposing of it to c, usually his attorney, and technically called "tenant to the _præcipe_," or writ. then b commenced an action in the common pleas against c to recover the estate in question, which, he asserted, had been wrongfully taken from him. c, instead of defending the action, "vouched to warranty" a: that is, he called in a to defend, on the ground that the said a had covenanted to support his title; but a, instead of defending the action, "vouched to warranty" d. this last, called the "common vouchee" (in the form in blackstone he appears as "jacob morland"), was always the "crier to the court," and for playing his part received the modest fee of fourpence on each recovery. at first he (jacob) made a great show at fight; he denied all b's statements, and "put himself upon the country:" _i.e._ he demanded that the case should go before a jury for trial. b then craved leave "to imparl" (_i.e._ to have a private conference with jacob), and the proceedings were solemnly adjourned. when they were resumed jacob was not to be found: "he hath (it was adjudged) departed in contempt of the court." evidently, or so it seemed, he had no answer to make. then b's claim was allowed; c was to have of the lands of a a quantity equal to what he had nominally lost; whilst a, in his turn, was to have the same remedy against jacob, who, having no means at all, cheerfully accepted much paper responsibility. then a writ was issued to the sheriff of the county wherein the lands were situate, directing him to give possession to b, whose title was constituted by a record of all the aforesaid transactions. as the centuries went by the proceedings became ever less substantial, the action was always commenced by the issue of a writ in the usual way, but most of the other steps were only taken on paper. sir frederick pollock says, that if the disentailer were a peer, a sergeant was actually briefed to move the court in the matter: also, one must note that lands held from the crown were never subject to this process (nor can they now be disentailed without a special act of parliament). by another barefaced fiction, colonial property might be disentailed in england. the deed roundly asserted that the island of antigua (or wherenot) lay in the parish of st mary, islington--the operation of this geographical miracle giving jurisdiction to the court of common pleas. one would suppose that something simpler might have served; but though laymen jeered, lawyers regarded these quaint formalities with strange reverence. my lord coke mentions with solemn reprobation a counsel named hoord who scoffed thereat in the house of lords, and whom a judge gravely rebuked as not worthy to be of the profession of the law, for that he "durst speak against common recoveries;" and as late as 1820, thomas coventry, esq., of lincoln's inn, concludes his learned treatise on the subject with an eloquent if slightly confused protest against any change, "which could know no end but an apparent confusion, or clearing away a path for the access of some modern pretender to strip the ivy from the venerable oak of our boasted constitution, the only emblem that remains of its antiquity and endurance." and now for a word on fines. these were so called for that they made an end of a controversy. they were simpler and even more ancient than recoveries. a fictitious action was begun by the purchaser against the vendor of an estate, wherein the latter soon gave in: the case was compromised, a fine was paid to the crown, upon the court giving its consent to this termination of the proceedings, and the record thereof became the purchaser's title. they were likewise used to bar entails, though they were not so effectual as recoveries. one of the first acts of the reform parliament of 1833 was the statute for the abolition of fines and recoveries. it was a mere question of procedure, for the law itself remained unaltered: but disentailment was effected by the enrolment of a deed in chancery. and now the dust lies thick on shelves of text-books--a whole system of learning, full of intricate details, the creation of centuries of perverse ingenuity. and the land-owners? these, too, long since availed themselves of the dark and subtle devices of the conveyancer. sir orlando bridgman, a great lawyer of the commonwealth, and finally chief justice of the common pleas under charles ii., invented and perfected the system of family settlements which to-day secures the secular interests of our great historic houses, as well as, if less directly than, any enactment could do. the custom of the manor has chance or necessity ever opened to you the charter-chest of the respectable solicitor in some country town? then, among his records, you have noted an interminable series of parchment volumes--very thick, very closely written, some centuries old, and one in current use. these are the court-rolls of the manor of wherenot. if you can spell out the beautifully written mediæval characters, you are sure to light on many a quaint record of by-gone folk and their ways, for, better than aught else, the manor and its muniments preserve for us the english past. manors, they used to say, arose in this fashion. a great lord obtained a piece of land from the king; part he disposed of to tenants who held of him in freehold (this sub-infeudation was stopped by the statute _quia emptores_ in 1290); the rest was his domain, on part of which he built the manor house, another part was cultivated by villeins, then the cotters had dwellings with portions of land, and the residue was waste, where the folk of the manor pastured their cattle, gathered fuel, and made their ways. sometimes these villeins were slaves, but each had his patch of soil, wherefor he rendered some servile office to his lord, ploughing his land, garnering his crops, or such like. the business of the manor was transacted in two courts, the court baron and the customary court. the first was attended by the freeholders, who themselves constituted the court; the second by the villeins, who merely hearkened to and witnessed the doings of the lord or his steward. when a villein died, the fact that the new tenant had such and such a field on condition of rendering so many days' labour yearly was noted in the records or roll of the customary court, and this roll, or a copy of it, becoming his title, he was dubbed a copyholder. in theory he was a mere tenant at the will of the lord, but time fettered the lord's will, until the principle was evolved that it must be exercised according to the custom of the manor, for "custom" as lord coke put it, "is the life of the manor," and so it came about that the holder had fixity of tenure while he did his service. his position steadily improved, the slave became free, the servile toil a money payment, and now the court agenda merely register changes of title. this account of the manor may serve for description, but does not represent the real origin, which has not yet been exactly ascertained. it was a fragment of old england, with a lord usually of norman race as head, and the relations between head and members elaborated and controlled by the theories and devices of the mediæval lawyer. as manorial law was custom, old local usages were preserved unaltered; thus, whilst the root idea of feudalism was that the eldest son should inherit his father's land, and the manor itself did so descend, within it an extraordinary diversity of usage obtained. by a custom similar to that of gavelkind (in kent), the copyholder's estate was sometimes parted equally among all his sons. in other places, borough-english prevailed, that is, the youngest son took everything, to the exclusion of his elder brothers; nay, by an odd application of the maxim "better late than never," a posthumous child ousted the brother already in possession; or, again, the widow or widower inherited. when the tenant died, the lord had a right to seize his best chattel (usually a beast), this was called a heriot, and it is yet here and there exacted. many customs are old saxon, many customs were invented, or at any rate twisted into fantastic rights from mere whim or a not very cleanly sense of humour, but here one must often merely accept the fact, for to try it by the rule of right reason were absurd. most manors were held of the crown, in return for services sometimes of the oddest character; thus, solomon de campis (or solomon at-field) had land in kent on condition that, "as often as our lord the king would cross the sea, the said solomon and his heirs should go along with him to hold his head on the sea, if it was needful;" and certain jurors solemnly present on their oath that "the aforesaid solomon fully performed the aforesaid service." our early kings provided against every possible contingency. one tenant enjoyed land by the service of holding the king's stirrup when he mounted his horse at cambridge castle. another must make _hastias_ in the king's kitchen on the day of his coronation. the glossaries are dumb as to this mysterious dish, though the learned darkly hint at haggis! or was it "a certain potage called the mess of _giron_," which, being enriched with lard, was called _maupygernon_--which last is possibly mediæval welsh for a haggis? thomas bardolf, who died, lord of addington, in 5 edward iii., was pledged to compound three portions of this dainty dish against coronation day, and serve them up smoking hot, one to the king, one to his grace of canterbury, and the third "to whomsoever the king would." other manors were held on the tenure of presenting to the king a white young brach ("lady the brach" of _king lear_) with red ears; of delivering a hundred herrings baked in twenty pasties; of finding the king a penny for an oblation, whenever he came to hear mass at maplescamp, in kent: gifts of roses, falcons, capons (which last dainties your mediæval sovereign held in special favour), were abundant. but how to riddle this one? the manor of shrivenham, in berks, was held (_temp._ edward iii.) by the family of becket, whose head, whenever the king passed over a certain bridge in those parts, must present himself with two white capons, whereto he directed the royal attention in choice mediæval latin, "behold," he said, "my lord, these two capons, which you shall have another time, but not now," which pleasantry reminds one of the current vulgarism, "will you have it now, or wait till you get it?" the service of the dymocks, owners of scrivelsby in lincoln, as king's champions, and of the duke of norfolk, as earl marshal of england, curious enough in themselves, are too notorious for this crowded page. a few quaint tenures are of quite modern origin. thus the honour of woodstock (an honour was a lordship over several manors: so "waverley honour" in scott's great romance) is held by the tenure of presenting a banner each second of august at windsor castle; that being the anniversary of blenheim, fought in 1704; and on each 18th of june the duke of wellington must likewise send to the same place, for the estate of strathfieldsay, a tri-coloured flag to commemorate waterloo. the last century legal antiquary pricked up his ears at a fine scandal which he fondly imagined in connection with the manors of poyle and catteshill, both near guildford. their holders were bound to provide a certain number (twelve in one instance) of young women, called _meretrices_, for the service of the royal court. dry-as-dust shook his solemn head, invented pimp-tenure (a "peculiarly odious kind of tenure" he explained), and the forerunner of the man who writes to _the times_ (it was then to the _gentleman's magazine_) cracked some not particularly choice jokes on the subject. a wider knowledge restored the moral character of the king, his lords, and the much-slandered young women, whose decent dust may now repose in peace. in mediæval latin the word was widely used for the female servant general or special, and these were, it seems, neither more nor less than laundry-maids. manors of an early date were ofttimes held under other manors on equally whimsical conditions. a snowball at summer and a red rose at christmas are extravagantly picturesque. a hawk was a common rent; but in one case it was carried to the earl of huntingdon's house, by the yielder, attended by his wife, three boys, three horses, and three greyhounds; and these must be housed for forty days at the earl's expense, while his countess must give the lady her second best gown. again, the tenant of brindwood in essex, upon every change, must come with his wife, his man, and his maid, all a-horseback to the rectory, "with his hawke on his fist and his greyhound in his slip"; he blows three blasts with his horn, and then receives curious gifts, and thereafter departeth. the lord of the manor of essington, in stafford, must bring a goose every new year's day to the head manor-house at hilton. here he drives it about the fire, which jack of hilton blows furiously, and (one regrets to add) most improperly. but jack may be forgiven, for he is but "an image of brass about twelve inches high," whose description you read at length in old thomas blount, the great recorder of all these mad pranks. the holding of pusey in berks by the pusey horn, gifted, it is said, by king canute, is well-known. sir philip de somerville, knight, was bound to hunt and capture the earl of lancaster's _greese_ (wild swine) for my lord's larder upon st peter's day in august. this he did till holy-rood day, when he dined with the steward, and after dinner "he shall kiss the porter and depart." this same sir philip de somerville held the manor of whychenover at half terms from the earl on condition that there ever hung in his hall one bacon flitch to be assigned to a happy married couple yearly in lent, after a variety of ceremonies like those in the more famous case of dunmow: the disposal of the flitch there being likewise according to "the custom of the manor." in the customs that made up the inner life of the manor one finds a diversity too great for classification. however, those old english folk were a merry lot; with usages not sad nor savage, but having much sensible joy in good meat and drink. at baldock, in hertfordshire, the customary court was holden at dinner-time, whereto every baker and vintner within the bounds must send bread and ale which the steward and his jury "cam' to pree," and presently gave their verdict "if these be wholesome for man's body or no." to the manor of hutton conyers there was attached a great common, where many townships pastured their sheep; and the shepherd of each township "did fealty by bringing to the court a large apple pie, and a twopenny sweet cake." for refreshment, "furmity and mustard, well mixed in an earthen pot, is placed before the shepherds, which they sup with spoons provided by themselves, and if any forget his spoon then, for so the customary law wills it, he must lay him down upon his belly, and sup the furmity with his face to the pot or dish." and the custom further permits the bystanders "to dip his face into the furmity," to the great delight of all present. to finer issues is the money provided by magdalen college, oxford, for certain manors of theirs in hampshire, _pro mulieribus hockantibus_, as the dog latin of the college accounts hath it. on hock day, annually, "the women stop the ways with ropes, and pull passengers to them, desiring something to be laid out in pious uses": the men having hocked the women after the same fashion the day before. there are traces of this usage further afield than hampshire. not less jovial were the tenants of south malling, in kent, who were bound to pay scot-ale, which fund they agreeably expended in "drink with the bedel of the lord archbishop." the case of stamford, in lincoln, is noteworthy as showing the origin of one peculiar custom. in the time of king john, william, earl warren, was lord of the place. one day he saw from his castle wall "two bulls fighting for a cow in the castle meadow;" their bellowing attracted all the butcher's dogs in the place; and these, in company with a host of rag-tag and bobtail, chased one of the champions in and out the town till he went mad; all which so delighted earl warren, that he forthwith gifted the common to the butchers on condition that they provided a mad bull six weeks before christmas day, "for the continuance of that sport for ever." it is impossible even to conjecture the origin of other customs. in most manors, when a copy-holder died, his widow had in free-bench (or what the common law calls dower) the whole or part of his lands. there was one restriction: she must remain "sole and chaste." yet, if she forgot herself, her case was not altogether past praying for in the manor of enborne in berkshire. at the next customary court she appeared strangely mounted upon a black ram, her face to the tail, the which grasping in her hand, she recited, sure the merriest, maddest rhyme it ever entered into the heart of man to conceive- "here i am riding upon a black ram"---alas, that the rest must be silence! the _spectator_, greatly daring, gives it in full; but that was as far back as november 1st, 1714. a like custom ruled the manor of kilmersdon, in somerset, where the doggerel, if briefer and blunter, is at least equally gross. and here one must refer to the _jus primæ noctis_, that lewd historic jest which, in england at any rate, was ever a sheer delusion. true that on the marriage of a villein's daughter a fine was paid to the lord, but this was not to spare her blushes, but as compensation to him for the loss of her services--inasmuch as she took the domicile of her husband. nay, the custom of the manor usually made for morality. there was a fine called child-wit exacted on the birth of an illegitimate child, sometimes from the infant's father, or, again, from the father of its mother. nay, in one or two places the unlucky lover forfeited all his goods and chattels. on the other hand a curious privilege attached to an oak in knoll wood in the manor of terley in staffordshire: "in case oath were made that the bastard was got within the umbrage or reach of its boughs," neither spiritual nor temporal power had ought to say, and the man got off scot free. the curious tenacity of the manorial custom is well shown in the case of pomber in hampshire: the annual court, in accordance with immemorial usage, must be held in the open air, but the inconvenience of this was obviated by an immediate adjournment of the proceedings to the nearest tavern. the records were not kept on parchment, but "on a piece of wood called a tally, about three feet long and an inch and a half square, furnished every day by the steward." in time these strange muniments became worm-eaten and illegible; and, as occupying much needed room, were thrown to the flames by the dozen. (it will be remembered that the old houses of parliament were set on fire and destroyed on the burning of the exchequer tallies, october 1834.) some of the survivors were produced as evidence in a case heard at winchester, which fact provoked "a counsellor on the opposite side of the question" to dub it "a wooden cause." the obvious retort--that his was a wooden joke--seems lacking; but possibly this gem of legal humour emanated from the bench: how often one has seen its like! still stranger was the lawless court of the honour of raleigh: it was held in the darkness of cockcrow; the steward and the suitors (i.e., those bound to attend the court) mumbled their words in scarce audible fashion; candles, pens, ink, were all forbidden; for, as the authorities vaguely put it, "they supply that office with a coal." to ensure a punctual attendance, the suitor "forfeits to his lord double his rent every hour he is absent." the learned camden affirms it was all to punish the aboriginal tenants for a conspiracy hatched in the darkness of the night; again he sees in it a remnant of an old teutonic custom; and in the end you suspect that he knows as little as yourself. then there was the white bull which the tenants of the monks of bury st edmunds were bound by their leases to provide, that childless women might present it to the shrine of the martyred king of east anglia; there was the fine called "thistletake," which the owner of beasts crossing the common, and snatching at the "symbol dear," must pay to the lord of the manor of halton; there are the "three clove-gillieflowers" which the tenants of hame in surrey shall render at the king's coronation; there are all sorts of minute details as to house-bote and fire-bote, and common of piscary and turbary. one more custom and we have done. in the time of richard the lion-heart, randal blundeville, earl of chester, was on one occasion sore pressed by the flintshire welsh. he summoned to his aid his constable of cheshire, one roger lacy, "for his fierceness surnamed hell." it was fair-time at chester, and roger, putting himself at the head of the motley crowd marched off to his relief. the welsh heard, saw, and bolted, and the grateful earl there and then promulgated a charter granting to roger and his heirs for ever, "power over all fiddlers, lechers, light ladies (the charter has a briefer and stronger term), and cobblers in chester." under henry vii. we find the then grantee exacting from the minstrels (_inter alia_) "four flagons of wine and a lance," whilst each of the aforesaid ladies must pay fourpence on the feast of st john the baptist. under elizabeth, various acts were aimed at rogues, vagabonds, and sturdy beggars, but always with a saving provision as to this chester jurisdiction, and in later times the vagrant act (17 george ii., cap. 5) had a like reservation. deodands at one time or other you have looked, one supposes, into that huge collection of curiosities and horrors known as the state trials. you may possibly have noted the form of indictment in the murder cases; and if so, one odd detail must have impressed you. having set forth the weapon used by the murderer, the document invariably goes on to estimate its money value: for, having been instrumental in taking human life, it was forfeit to the crown, and it or its price had to be duly accounted for. it was called a deodand, but the name was applied to many things besides arms used with malice aforethought. thus, a man died by misadventure: then was the material cause active or passive? for instance, his end might come because a tree fell on him, or because he fell from a tree, in either case the wood was a deodand, and so forfeited. the name is from _deo dandum_--a thing that must be offered to god, and this because in early mediæval times the church or the poor had the ultimate benefit. for the origin of the custom one must go far back. in hebrew, greek, and roman legislation, the physical object that caused the loss of human life was held accursed, and hence was destroyed or forfeited. in england a thing became a deodand only when the coroner's jury (or more rarely some other authority) had found it the cause of death; which death, moreover, must happen within a year and a day of the accident. if it did, the thing was seized, no matter where it was, or who had it. in default of delivery the township was liable, and it was the sheriff's duty to get the value therefrom. if a man had _per infortunium_ (or without blame) used the article, the jury found that as a fact, and he was acquitted, or rather pardoned; but in strict law his goods were forfeit as late as 1828. and not everything causing death was a deodand. if a man fell into the water, was carried under a mill-wheel, and perished, the wheel was forfeit but not the mill. the distinction was sometimes difficult. here are two actual examples. a cart and a waggon came into collision; the man in the cart was pitched out under the waggon-wheels and died. the two vehicles, all they held, the horses that drew them, were adjudged deodands, "because they all moved _ad mortem_." again, a ship was hauled up for repairs, toppled over on a shipwright at work, and was declared forfeit. your mediæval lawyer was nothing if not subtle, and he soon raised doubts enough to gravel a schoolman. he questioned if things fixed to the freehold could become deodands. suppose a man were ringing a church bell, and the rope, getting twisted round his windpipe in some strange fashion, choked the life out of him: how then? the rope seemed past praying for, but what about the bell? the learned differed, yet all agreed that if the timber holding the bell got loose, and came crashing down on the sexton, the royal treasury, of clear right, pounced on rope, and bell, and timber. how furiously, with what a wealth of legal learning and invention, one fancies the utter barristers must have "mooted" those fascinating points after supper in the halls of their ancient inns! the decisions were hard to reconcile. thus, in edward the third's time, it was held that if a man fall to his death from his horse against the trunk of a tree, the horse is forfeit, but not the tree. but in the same reign a distinction was drawn. one william daventry, a servant to john blaburgh, engaged in watering a horse, was grievously hurt. he was carried to his master's house "_apud fleet street in suburbio london_", and there at even he died. at first the horse was adjudged a deodand, but blaburgh got the inquisition quashed on the ground that the horse had not thrown his rider. again, if a lad under fourteen fell from a cart and was killed, there was no deodand: as some opined, because the masses might be dispensed with, in the case of one presumed sinless from his tender age, and the proper end of deodands was to procure masses; but others urged it was "because he was not of discretion to look to himself." the further question--what possible difference this could make--was not raised; for even a mediæval lawyer's speculation must stop somewhere. but how if the slayer were a lad? a cornish case, _temp._ 1302, supplies an answer. jack of burton, a boy of twelve, had a mind to draw the bow. he rigged up a target in a house, and shot thereat from the outside. one arrow missed the mark, and, glancing off a hook, transfixed a woman called rose. rose died forthwith, and jack fled in horror. it was held that _le hoke_ was a deodand, but that the boy, on account of his age, was no whit to blame, and (with a touch of kindliness) a proclamation was made far and wide that he might return in safety. in this connection one recalls the awkward misadventure of abbot, archbishop of canterbury, in the reign of james i., who, being out a-hunting, killed, by pure accident, peter hawkins, his keeper. he had many enemies, and all sorts of ecclesiastical and temporal penalties were threatened: at least, it was said, let all his goods be confiscate. but the king turned a deaf ear to these suggestions: he comforted the unlucky prelate with kindly words, and a full pardon, dated 26th september 1621, removed all possible danger from his reverend person. if a man met his death afloat, there was deodand or no deodand as the water was fresh or salt, for these rules had no force on the high seas or in tidal rivers: because, said some, "there were so many deaths at sea." "nay," said others, "how forfeit the ocean?" "but at least," it was replied, "one could take the ship"----but here again speculation must stop. although deodands first went to the crown, and were properly applied to pious or charitable uses, yet they were often granted to lords of manors: so often, indeed, that one of the few references to them in english literature--a couplet in samuel butler's _hudibras_--treats this as the general rule. "for love should, like a deodand, still fall to the owner of the land." this owner was not seldom exacting, and his claim was met in characteristic english fashion. the coroner's jury returned the value of the deodand at next to nothing, _e.g._, "a horse, value three shillings," and the court of "king's bench" refused to disturb the finding. hence one absurdity balanced another, and the doctrine was long defended. in 1820, joseph chitty, in his standard work on _prerogatives_, maintains that "the forfeiture is rational so far as it strengthens the natural sensation of the mind at the sudden destruction of human life." but in later years these mediæval ghosts began to walk again to some purpose. in 1840 the london and birmingham railway company was amerced in £2000 as a deodand! railway directors were no doubt convinced that 9 and 10 vic., c. 62, which in 1846 made an end of the whole business, came not a day too soon. had the law of twenty years before that been restored, there might have been some warrant for stripping those same directors of all their property after each railway accident, and one shudders to think of the consequences had the coroner's jury found the plant used not _per infortunium_. one thing must be added, many held that the instruments of a murder, though forfeited to the crown, were not, properly speaking, deodands, and they quoted as illustration the curious case of one rempston, who forced his boat's crew to row under london bridge _invitis corum dentibus_ in dangerous weather. he was thrown out and drowned, and the jury, it was said, brought in a verdict of _felo de se_, to save the boat from forfeiture. but the weight of authority was emphatically against this view. the law of the forest "a stretch of land, thick planted with trees;" so you picture a forest to yourself, but old english law held otherwise. there were miles of woodland that were not forest at all, and acres of pasture that were. john manwood, the elizabethan lawyer, still our chief authority on the subject, defines it as "a certain territory of woody grounds and fruitful pastures, privileged for wild beasts and fowls of forest, chase, and warren, to rest and abide in under the safe protection of the king." such a preserve was exactly delimited, and might contain villages, churches, and so forth, within its bounds, as the new forest does to-day. the king had certain rights over all, yet it was mainly private property; nay, there might be spaces in it, but not of it,--within its bounds, but not within its regard, as the phrase ran,--and so exempt from its peculiar laws. manwood gives a picturesque, though quite erroneous derivation of the term: it was _for rest_ of the wild beasts; but a sounder etymology traces the word to _foris_ (= outside), for that it was outside the jurisdiction of the common law, and had codes, courts, and officers of its own. the whole business was for centuries alike insult and wrong to the commons of england. hunting was not merely the chief amusement of our early kings: it was a necessary pursuit for the keeping down of the wild beasts then a real danger to the fields and their cultivators. the forest charter of canute the dane (dated 1016) is a myth; but it is certain that, before the conquest, the sovereign had a peculiar--howbeit, an undefined--property in the woodland. the conqueror, who, according to the saxon chronicle, loved the tall deer as if he had been their father, devastated far and wide to make the new forest; and he and his immediate successors punished hurt done to the deer with loss of life or limb. the great charter contained provisions against this odious abuse of power, and under henry iii. a special charter of the forest enacted that no man should lose life or limb for killing deer, at the same time that it disafforested (_i.e._, removed from the forest to which they had been improperly joined) vast tracts of country. after the new there was but one other forest made in england, that was the land round hampton court, afforested under henry viii. by act of parliament. an attempt to revive royal rights over the woodland hastened the fall of charles the first, and then the commonwealth gave the forest system its death-blow, though it was not till the time of george iii. that the great mass of enactments was formally repealed. a court of swainmote lingers in the new forest and elsewhere, and its officials, called verderers, albeit shorn of their ancient power and splendour, do their quaint antics still; but by an odd, though happily not singular inversion, those old popular wrongs are now become popular privileges; epping forest, for instance, could never have become a public park but for the crown rights, and these same rights over the woodlands throughout the country now yield an income which more than covers the cost of the whole civil list. had the crown looked more sharply to its own, the profit to ourselves had been still vaster. the forest laws, however complex in detail, were all inspired by one consistent idea--the preservation, to wit, of the king's venison. even under edward i.'s comparatively humane rule the verderer held an inquest upon a deer found dead in the regard, just as the coroner did upon a man's body, and the jury found how the creature came to its end. the very arrows gleaned there were entered in the verderer's role. the freeholder within that charmed ground might not fell his own timber without leave, lest he should spoil the _cover_: nor could he turn out his goats to browse, for they would taint the pasture; whilst he must feed his sheep in moderation, else he committed the grievous offence of _surcharging_ the forest. the forest had a huge staff of officers. first was a multitude of subordinates; foresters--who, if they kept ale-houses in the regard, and encouraged folk to drink therein, committed a special crime called _scotale_--agistors, woodwards, keepers, verminers, sub-verminers, and what not. these haled trespassers before the court of attachments, which was held every forty days. in command of them were the verderers, constituting, with representatives from the forest townships, the court of swainmote, which met thrice a year for (_inter alia_) the trial of the more important offences. judgment on its findings was given at the court of justice seat, held but once in the three years, under the presidency of a lord chief justice in eyre of the forest. there were but two--one for the north, the other for the south of the trent; and inasmuch as this officer was commonly some great noble--"a man," says my lord coke, with a touch of irony, "of greater dignity than of knowledge of the laws of the forest"--some skilled professional folk were joined with him in the commission. the last court of justice seat was held in 1670 by the earl of oxford. it was a mere form: the last but one (in 1635) had created a fine pother by its exactions. offences were either trespasses _in vert_ or trespasses _in venison_. the vert (= green) was of course the cover; and the destruction thereof was called _waste_, while _assart_ was stubbling it up to make ploughland: and _purpestre_ (a most grievous business) was building on or enclosing part of the forest. (as late as the reign of charles i., sir sampson darnell was heavily fined for erecting a windmill on his own ground in windsor chase). moreover, vert might be _over vert_ or _hault-bois_, or it might be _nether-vert_ or _sous-bois_, according as it was underwood or not; and in either case it was _special vert_ if it bore fruit, such as pears, crabs, hips, and haws, whereon the deer might feed. venison, as lawyers understood it, was composed of beasts of forest--to wit, the hart, the hind, the hare, the boar, and the wolf--and beasts of chase. a chase, which was like a park, but was not enclosed, might be held by a subject; but every forest was likewise a chase and a warren, and the beasts of chase were the buck, the doe, the martern, and the roe. these were described with wondrous detail. the hart--"the most stately beast which goeth on the earth, having as it were a majesty both in its gait and countenance"--was in his first year a calf, in his second a broket, in his third a spayad, in his fourth a staggard, in his fifth a stag, and in his sixth a hart. if he escaped the pursuit of king or queen he became a hart royal, which no subject might molest. in 1194, richard coeur-de-lion hunted a noble beast out of the forest of sherwood into barnsdale in yorkshire, and there losing him, made proclamation "that no person should kill, hunt, or chase the said hart, but that he might safely return into the forest again." an animal thus honoured was called a hart royal proclaimed, and in the 21st of king henry vii., a man was indicted for taking so precious a life, but the case apparently went off for want of technical proof of proclamation. your precise woodman talked of a bevy of roes, a richesse of marterns, a lease of bucks. he said that a hart harboureth, whilst a buck lodgeth, and a hare was seated. he dislodged the buck, but he started the hare. he would tell you that the hart belloweth, the buck groaneth, the boar freameth; and whilst the hart had a tail, the roe had a single, the boar a wreath, and the fox a bush (not brush be it noted) or holy water sprinkle. their amours (_e.g._ a fox went to clicketing), their young, their very excrements were dignified in a long array of special terms, the divisions and subdivisions of the deers' antlers being enough of themselves to gravel the tyro in woodcraft. the peace of those precious animals was elaborately safeguarded, and it was specially forbidden "to haunt the forest" during the _fence moneth_, which was fifteen days before and after midsummer. most forests were surrounded by purlieus, that is, territory which had been disafforested. officers called rangers patrolled this debateable territory to drive back the errant deer, and whilst the purlieu-man (namely, the freeholder therein) might hunt on his own lands, he must call off his dogs if the beast once touched the forest. and every three years there was a special drift of the forest, which was a sort of census of the venison. a man taken _with the manner_ (main ouverte), that is, in the act of doing for the deer, was attached without bail. the offender might thus be caught red-handed in four ways:--(1) in _dog-draw_ he was chasing a wounded beast with hounds; (2) in _stable-stand_ he was drawing his bow in ambush; (3) in _back-bare_ he was carrying off his quarry; (4) in _bloudy-hand_ he bore the red marks of his spoil. divers statutes put a yet keener edge upon the common law, as that under henry vii., whereby hunting in the forest at night with painted vizards was made a felony. and what of the dogs? the forest freeholders might keep mastiffs for the protection of home and homestead; but a court of regards was held every three years for their lawing or expeditation. thereat your mastiff was made to place one of his paws upon a billet of wood, "then one with a mallet, setting a chisel of three inches broad upon the three claws of his forefoot, at one blow doth smite them clean off." other dogs of any size were summarily banished the precincts. royalty was ever jealous of these rights. a fee-buck and a fee-doe were allotted to every verderer yearly (but these were but wages in kind); and every lord of parliament going or returning through the forest, on summons from the king, might take one or two beasts, but if no forester was at hand, he must sound his horn, lest the kill might seem done in secret. but all the king's horses and all the king's men could not quench english love of sport. robin hood and his merry band are but the glorified types of a very multitude who chased the deer night and day, for the forest stretched mile after mile over hill and dale, and the tall deer were fair to look on, and the taste of their flesh was as sweet to the wanderer and the outlaw as to the noble or the monarch; and the law, albeit cruel, was weak, and a touch of danger but gave zest to the pursuit. to take a later instance, was not shakespeare himself the most illustrious of poachers? not on such rovers but on the poor hard-working folk within the regard did the forest laws press with cruel weight, and yet old manwood highly extols their sweet reasonableness--"the king," he says, "wearied with his anxious care for the weal of his subjects, is given by law these forests that he may delight his eye at sight of the vert, and mind and body by the hunting of the wild beasts," and so he finds it in his heart to regret that in his day the forests were somewhat diminished. and since the sovereign's good is now the peoples' good, we may agree with him, though not for the same reason. par nobile fratrum john doe and richard roe old english law being full of fictions, had pressing need ever and anon of imaginary characters to play imaginary parts. sometimes a name was picked at random from the street, and smith, you hear without surprise, was in great request, or, as those shadows came and went in couples, you find richard smith as often as not paired with william styles. but your ancient scribe lusted after quaintness. he loved a jingle, so names like john den and richard fen--rare in actual life--peopled his parchment, and strove for mastery in his mock combats. but his prime favourites were doe and roe, nor would he raise den or fen or any other ghost, excepting he had need of more than two. here is a simple instance of their use. in early times a man who commenced an action had to give surety that he would go on with it; nowadays, if he discontinue, he must pay the costs of the other side, but costs, incredible as it may sound, were not always the necessary shadow, or perhaps the substance, of law; and hence the need for the pledge. under edward iii. the practice went out of use, but the form of it, as legal forms are apt to do, lingered on for centuries in this style:- _pledges of prosecution_ { john doe. { richard roe. in the old action of ejectment the pair were most active. so strange were their gambols that even the lay world was impressed. in the early years of victoria john and richard were common butts of popular satire. nothing seemed more gratuitous, more idly superfluous; but, turn to their history, and you find how important and how serviceable were the parts they once played. one must begin far back. in early feudal times the cultivator of another's land was either a serf or a person of no importance, holding at his lord's will. the tenant's position improved with the times, leases were granted, and if their conditions were broken, a writ of covenant, as the form of action was called, secured him in possession, and gave him damages for his wrongs. but this action lay, as the technical term is, between the original parties alone; so that if he were turned out by a complete stranger, or by a person claiming through another grant of the same landlord, his remedy was merely pecuniary. in the time of henry iii. a writ was invented giving him full protection against anyone interfering under colour of another lease from his lord: but the case of an ouster (or dispossession) by an utter stranger was not adequately provided for until the beginning of edward iii.'s reign, when the writ of _ejectio firmæ_, or ejectment, was adapted from the proceeding in trespass. it called upon the wrong-doer of every species to show why, "with force and arms," he had entered on and taken possession of the plaintiff's land. but, again, the result was only money damages: so that he was driven for relief to the equitable jurisdiction of the chancellor, who, by injunctions and so forth, secured him in, or restored him to, possession of the very land itself. presently the common law courts took it ill that so much of their legitimate business should go elsewhere; and, at the end of the fifteenth century, they allowed the term itself, as well as damages for the ouster, to be recovered under a writ of ejectment, and this remedy was held proper against every species of wrong-doer. and if, not the tenant, but the landlord himself, were deprived of his property? or, if anyone not in possession claimed a piece of land as his freehold? these forms of procedure were not available, since they were personal actions, and a claimant to the freehold must proceed by a real action. these last were in early times the most important of all. but their forms were numerous and varied (the assizes of _morte d'ancestor_ and _novel disseisin_, as they were called in old law french, were two of the best known), and their cumbersome and complicated technicalities were cause of much expense, irritation, and delay. at last it occurred to some ingenious, though forgotten, jurist so to twist this writ of ejectment, which had all the last improvements, as to make it available in an action for the recovery of the freehold. that was done in this way. a. was (let us suppose) the legal and rightful owner of an estate occupied in fact by b.; he entered on the land with c., to whom he, then and there, signed, sealed, and delivered a lease for the property in question; to them so engaged entered b., attracted by their manoeuvring, and speedily kicked both into the boundary ditch. here were all the materials for the action of ejectment, since c. might truly declare himself dispossessed _vi et armis_ by b. from land whereof he held a lease from a. in this action the main point evidently was: had a. a right to grant c. the lease? in other words, was a. the real owner of the land? if the jury said "yes," then judgment for possession followed for c., who, being merely the nominee of a., forthwith passed the property over to him. improvements were speedily suggested. actual ejection was like to prove unpleasant, so a. and c., instead of ostentatiously soliciting b.'s attention, took with them a confederate d., who, in a friendly and affable manner, performed the function of a chucker-out, and this casual ejector (as they named him) was made nominal defendant in the action wherein c. was nominal plaintiff. lest b. should be condemned unheard, it was provided that the casual ejector must give him notice of the proceedings, whereupon he was let in to defend in place of d. this device was a brilliant practical success. real actions pure and simple fell speedily into disuse, though it was not till 1833 that, with a few exceptions further tampered with in 1860, they were legally abolished. the commonwealth was a time of legal as well as political change. the lord protector had, with quaint emphasis, described the court of chancery as "an ungodly jumble," and rolle, his lord chief justice of the upper bench, before and since known as the king's bench, laid violent hands on the action of ejectment. "what," urged he in effect, "was the use of actual entry, lease and ouster? let all be held as done: so that the court may apply itself at once to the real question at issue." finally, the action was in name _doe_ against _roe_, but the writ as a mere form was suppressed, and the first step was the declaration and notice to appear, both served on the real defendant or his tenant. the declaration stated that the land in question had been demised by a. (the real claimant) to john doe; but that richard roe had entered thereon by force and arms and ejected him, "to the great damage of the said john doe, and against the peace of our lord the now king;" and that therefore he brought this action. to this there was appended a letter, signed "your loving friend richard roe," addressed to b., the real defendant, and informing him that the sender, hearing that he claimed the land, must now tell him that he (richard), being sued "as a casual ejector only, and having no title to the same," he advised him (b.) to enter appearance as defendant, "otherwise i shall suffer judgment therein to be entered against me by default, and you will be turned out of possession." now, to succeed in his action, the plaintiff must clearly prove four things--title, lease, entry, and ouster; and the three last he could not do, since they never happened. this little difficulty was got over by a consent rule: the courts allowed b. to take richard roe's place as defendant, only on condition that he would confess those three things to have happened which never did happen: whereupon the real question of title alone remained. so strangely had this action varied from its first use--which was to recover damages for wrongful possession of land--that in the result these were nominally estimated at a shilling; and if a. really wished to make b. disgorge the spoils of possession, he sued him again for mesne profits. although the action was nominally "_doe_ against _roe_," the cases are usually cited as "_doe on the demise of a._" (the real plaintiff) "against b." (the real defendant), and whilst john and richard were the favourite styles, we have occasionally "_good title_ against _bad title_": a comically impudent begging of the question at issue. if the outside public mocked these venerable figures, _par nobile fratrum_, the suitor did so at his peril. a certain unitt (_temp._ george i.), being served with a copy of a declaration in ejectment, "pronounced contemptuous words on the delivery of it," and the judges in solemn conclave held that he was in contempt, and was deserving of punishment therefor. so the masque of shadows went on till 1852, when the common law procedure act removed an obstacle which lawyers had walked round for centuries, and consigned john doe and richard roe to that limbo where so much legal rubbish lies buried under ever-thickening clouds of dust. sanctuary your old-world lawyer was an ardent, if uncritical, antiquary. he began at the beginning, and where facts ran short his fancy filled up the blank. in discussing sanctuary he started with the biblical cities of refuge. he had something to say of romulus and the foundation of rome. geoffrey of monmouth supplied him with the name of a sovereign--dunwallo molmutius to wit--who flourished in druidical britain (b.c. 500 it was said), under whom cities and even ploughs were arks of refuge for the despairing fugitive. it might have been objected that the ancient britons had neither ploughs nor cities; but such criticism was not yet in the land. we touch firmer ground in the centuries immediately preceding the conquest. in early english legislation churches safeguarded the criminal from hasty vengeance, and so allowed time to settle the money compensation payable for his offence. sanctuary was among the privileges that the conqueror conferred upon his foundation of battle abbey--one of many cases wherefrom the norman lawyers built up a system for mediæval england. that system was not always consistent or clear, but its main outlines were as follows:--sanctuaries were of two kinds--general, as all churches and churchyards; special, as st martin's le grand and westminster. no doubt these last had originally also a religious sanction. such places were twice consecrate: pope and king, the canon and the common law united in their favour. they protected felons, but not those guilty of sacrilege or (some held) of treason. they were not properly for debtors, whose reception was nevertheless justified by an ingenious quibble. imprisonment might endanger life, and therefore (so the learned argued) the runaway debtor must be received. a man took sanctuary thus--having stricken (let us say) his fellow, he fled to the cathedral and knocked (with how trembling a hand!) at the door of the galilee. over the north porch were two chambers where watchers abode night and day. on the instant the door swung open, and had scarce closed behind the fugitive when the galilee bell proclaimed to the town that another life was safe from them that hunted. then the prior assigned him a gown of black cloth marked on the left shoulder with the yellow cross of st cuthbert, and therewith a narrow space where he might lie secure of life, though ill at ease. so it was at durham. at westminster the sanctuary man bore the cross keys for a badge, and walked in doleful state before the abbot at procession times; and there were, no doubt, countless variations. a phrase of the time reveals how close the watch was now and again. under edward ii. it was complained that the sanctuary man might not remove so much as a step beyond the precincts, _causâ superflui deponendi_, without being seized and haled to prison. he was fed and lodged in some rough sort for forty days, within which time he must confess his crime before the coroner at the churchyard gate, and so constitute himself the king's felon. then he swore to abjure the realm. the coroner assigned him a port of embarcation (chosen by himself), whither he must hasten with bare head, carrying in his hand a cross, not departing, save in direst need, from the king's highway. he might tarry on the shore but a single ebb and flow of the tide, unless it were impossible to come by a ship, in which case he must wade up to his knees in the sea every day. he was thus protected for another forty days, when, if he could not find passage, he returned whence he came, to try his luck elsewhere. he who refused to confess and abjure was not driven forth, but if, after much spiritual admonition, he still refused to conform, he had neither meat nor drink given him, and so was ended, if not mended. a man unjustly deprived of sanctuary could plead the right before his judges. it was a declinatory plea, and must be urged before he answered as to his guilt or innocence; it availed him nothing to do so after, for he was strung up forthwith. this system, however harsh, had two very plain advantages. it was a short and easy method with a rascal, and it powerfully made for scientific accuracy in pleading. if a fugitive were caught and condemned ere he "took westminster," as the town phrase ran, it was no advantage for him to escape on the way to execution, inasmuch as he was promptly haled forth to the gallows. a curious case in the eighth of edward ii. perplexed the ancient student. a woman was condemned to death, but a jury of matrons had no doubt as to her condition, and she was reprieved. she escaped to sanctuary before the arrival of the hangman's cart, and when the gaoler dragged her out, the judges bade him put her back again, whereat the learned shook their heads, opining that hard cases make bad law, and the jade should have swung like other folk. on the whole the privilege was strictly respected. for instance, the king's justices were wont to hold session in st martin's gate. they sat on the very border. the accused were placed on the other side of the street; a channel ran between them and their judges, and if they once got across _that_ they claimed sanctuary, and all proceedings against them were annulled. and one sees the reason why perkin warbeck took such care "to squint one eye upon the crown and the other on the sanctuary" (as bacon curiously phrases it); yet the great case of beckett is there to show that nothing was absolutely sacred in these violent years. nor does it stand alone. in 1191, jeffrey, archbishop of york, and son of henry ii., was seized at the altar of st martin's priory, dover; and dragged, episcopal robes and all, through dirty streets to the castle: this, too, by order of william longchamp, bishop of ely, and papal legate. in 1378, archbishop sudbury complained in parliament that one robert hawley had been slain at the high altar even while the priest was saying a mass. it was rumoured indeed that one thurstian, a knight, chasing a sanctuary man with drawn sword, was of a sudden stricken with grievous ailments. but this and other like stories did not deter the citizens of london (_circa_ 1349) from assembling at supper time in a great crowd, and dragging forth a soldier who had escaped on the way from newgate to guildhall, where he was being taken for trial. in another case (_temp._ henry vi.), where a youth had taken sanctuary after having foully slain a kind mistress, the good women about st martin's broke in and despatched him with their distaffs. of those who took sanctuary to good purpose the most famous was elizabeth, widow of edward iv., who, in 1471, registered herself a sanctuary woman in westminster, and there sat, in sir thomas more's phrase, "alow in the rushes." but you have read the tragic story in shakespeare. and in a later age "beastly skelton" (as pope will have him), from that same westminster safely lampooned the mighty wolsey, though for that he needs must live and die there. to catalogue the evils of the sanctuary system were to show lack of historical sympathy, nay, even of humour. the former days were not as these; it had its place with the shrine and the pilgrimage, the knight errant, and the trial by ordeal in the strange economy of a vanished world. as the times grew modern its practical inconvenience was felt for the first time. yet the occasion of the first assault on the privilege of sanctuary was one where the benefits were conspicuous, and the assailant had the worst of motives. it was the case just noted of edward iv.'s widow; she had the young duke of york as yet safe with her. her enemies were at a loss for the moment, and buckingham, then the sworn ally of richard of gloucester, took occasion in the privy council to attack her place of refuge. "there were two chief plague-spots in london," he snarled: "one at the elbows of the city (westminster), the other in the very bowels thereof (st martin's le grand). these places were the refuge of theeves, murtherers, and malitious, heynous traytors! nay," he added, "men's wives ran hither with their husbands' plate, and say they dare not abide their husbands for beating," with more to the same effect. had not elizabeth yielded, westminster might have witnessed a violation as affecting as that of canterbury. under henry viii. the old order was broken up, and sanctuary law, like much else, was changed and amended again and again. first, all special places save wells, westminster, and six others, lost the privilege. divers classes of criminals --as traitors, and pirates (and afterwards) egyptians--were formally rendered incapable of its enjoyment. before the sanctuary man abjured the realm he was burned on the crown of the thumb "with the signe of an a," and if he did not depart on the instant, he had no further protection. but it occurred to over-anxious legislators that such a fugitive might carry beyond seas precious hints of the mysteries of trade or politics, or that, making as if for the nearest port, he might but proceed to infest another place. so he was ordered to abjure the liberty of the realm, but not the realm itself; and being branded, was confined under a governor in one or other of the sanctuaries. whenever he ventured forth--as he might in the daytime--he must wear the prescribed badge of the refuge. he dare carry no weapon save a meat-knife, and that but at meal-times. he must likewise answer to the daily roll-call. if he committed another felony--and crimes done _sub spe redeundi_ had been a sore grievance of late--he was to lose his rights. the governor was empowered to hold courts for debt and minor offences within his bounds. and so "the sanctuary person abjured," as the tudor lawyers phrased him, spent the last days of his evil life. i need not dwell on minor tinkerings of the system under henry's children. in 1623 the statute 21 james i., c. 28, s. 7 made a legal end of the right of sanctuary. the last of our story is not yet. certain places still assumed the right of giving shelter against civil process. when the bailiffs invaded the liberty, the whole population forthwith set on, and pommelled them so lustily that they were fortunate if they escaped sound in limb. the precincts of whitefriars and the savoy were the worst places in london. the first, renowned in slang, nay, in literature, as alsatia, because (some explained) it neighboured the temple on the east, as alsace did france, was a base and villainous bohemia. ram alley (now mitre court), a local lombard street, salisbury court (now salisbury square) were its chief ways, though probably all between fleet street and the river, which was not the temple, held of this lawless republic. a bully or bravo, or squire of alsatia was a cant name for a penniless and violent fellow of the time. he is pictured by otway in his _soldier's fortune_ with flopping hat pinned up on one side, with a tawdry weather-beaten peruke, dirty linen, and a long scandalous iron sword jangling at his heels. the sheriff with the _posse comitatus_ did on occasion raid alsatia, but his prey, if too weak to fight, had ever timely warning to escape by land or water to some other like burrow. _the fortunes of nigel_ tells as much of the place as the general cares to know, and there is much curious matter mined out by the zealous antiquary as to other like places of refuge in the capital. thus fullwood's, sometime fuller's rents, was related to gray's inn as alsatia to the temple. in 1673 the gentlemen of that ancient house so far forgot themselves as to engage in "pumping" some bailiffs who attempted to take goods from out the rents upon an execution. "they were charged with a body of thirty lusty bailiffs," and a "strong ryot" ensued. possibly they recollected that their most illustrious fellow-member, "broad-browed verulam," had taken refuge there some sixty years before, a circumstance which gave my lord coke occasion to "gall the kibe"--as indeed he never lost any chance to do--of his great contemporary. then there was the mint in southwark, whereto an ex-poet laureate, "poor nahum tate," as dr. johnson calls him, was driven by extreme poverty. pope's cruel satire pictures it half grub street half bedlam, the last refuge of the hack and the poetaster. the clink and deadman's place are now forgotten, whilst baldwin's gardens and the minories have a more commonplace reputation. about a century after james's act, parliament again interfered, and professed to strip the "pretended privileged places" of every shred of exemption, but it required two other statutes, the 9 geo. i. c. 28, 1722, and the 11 geo. i. c. 22, 1724, to make the law's process as effectual there as elsewhere. trial by ordeal before the conquest, and for long after, local justice in england was administered by two courts--that of the hundred and that of the shire. the first nominally consisted of the freeholders of the district, but the real business was done by a committee of twelve. the second was made up of the chief men of the district, and representatives from each township; but here, again, the work was left to a select few. if a man were charged with (say) theft before either court, he was tried in a fashion vastly different from that obtaining to-day. the complainant was sworn on the holy relics: "by the lord i accuse not this man either for hatred, or for envy, or for unlawful lust of gain." this solemn accusation made out a _primâ facie_ case against the suspect, who instantly rebutted oath with oath. "by the lord i am guiltless, both in deed and in counsel of this charge." then he produced twelve compurgators, who swore by the lord, "the oath is clean and unperjured which this man hath sworn"; then the prisoner went free. these compurgators were witnesses to character. their testimony had no reference to the particular facts of the case; they simply alleged their belief in accused's innocence, but sometimes their oath "burst" (as the curious technical phrase ran), that is, he could not find compurgators, or those he produced said little good of him; or he was a stranger of whom nothing was known; or a welshman whose veracity has never been an article of faith; or the accused was caught with his booty; or was a woman; or the charge was peculiarly odious, as treason, or witchcraft; then in all these cases there was an appeal to the _judicium dei_, the creator was called upon to prove beyond dispute the guilt or innocence of the accused. trial by ordeal was more ancient than the church itself. there are traces of it in the old testament; it is discussed in great detail in the laws of manu; a famous passage in the _antigone_ (verses 264-267) reveals it as well known to the greeks, and before augustine came, or st columba preached, it prevailed in some form or other in britain. yet the higher ecclesiastical powers continually thundered against it, and finally brought about its disuse. there were several varieties, but many forms were common to all. first, there was the ordeal of cold water, chiefly reserved for the baser fellow. as a preliminary the accused submitted to a fast of three days, during which he was watched by a priest, then he was taken to church to hear mass; and was adjured by father, son, and holy ghost, by the gospels and relics of the saints, by everything held most sacred, not to partake of communion if he were guilty. next came the _adjuratio aquæ_, wherein the water was enjoined to cast him forth if he were guilty, but to receive him into its depths if innocent. and now, having been stripped, he kissed the book and the cross, was sprinkled with holy water and was cast in, to float if he were guilty, to sink if he were not. but there was the rub--how about death by suffocation? sir james stephen suggests that it was all a mode of happy despatch! or (one fancies) it might be an elementary form of the famous verdict "not guilty, but don't do it again," with the chance of doing it again effectually provided against. on the other hand, a recipe for immersion in a thirteenth century ms. of the monastery of becca reduces the proceedings to the level of farce. the hands of the accused were tied, and a rope was put round his waist; "and let a knot be made in the rope as high up as the longest hair of the man's head will reach, and then in this way let him be gently lowered into the water; and if he sinks down to the knot, let him be pulled out as innocent; if not, let him be adjudged guilty." how _not_ to sink under such conditions? the practice of testing witches by throwing them, securely tied, into the nearest pond was clearly a survival of this form of ordeal. in the ordeal by hot water the accused, plunging his hand to the wrist in the boiling fluid, brought forth a stone suspended therein by a cord. (this was the single ordeal, and it became the triple when the plunge was up to the elbow.) the arm was done up in bandages not to be removed till after three days; if the scald had healed the man was innocent, if it still festered he was guilty. in the ordeal by hot iron, a piece of red-hot metal was carried a distance of nine feet; it was then dropped and the hand was bandaged as already set forth. a knight had to thrust his fist into a glowing gauntlet; another form was a walk with naked feet over a sequence of red-hot ploughshares. we have a picturesque circumstantial and absolutely untrustworthy monkish account of how emma, mother of edward the confessor, being suspected of an all too intimate acquaintance with alwyn, bishop of winchester, underwent this trial. she took nine steps for herself and five for the bishop, fixing her eyes the while on heaven. "when shall we reach these ploughshares?" queried she. how agreeable a surprise to find her little promenade already past and done with! no need to swathe _her_ feet, the red-hot iron had marked them not at all! the last mode was the _corsnæd_, or cursed morsel--a piece of barley-bread (or cheese), one ounce in weight. this "creature of sanctified bread" was adjured, in terms terrible enough to make the sinner quake, to stick in the guilty throat, and cause the guilty jaws to be clenched and locked up. if in spite of all it went softly down, who dared to refuse belief in the man's innocence? it was chiefly for the clergy, and from every point of view must have been the most agreeable of the three, though a legend as untrustworthy as that of emma ascribes to it the death of earl godwin, father of harold. as he sat at meat with edward the confessor, the king brought up an old scandal about his brother's murder, "may god cause this morsel to choke me," passionately exclaimed the earl, "if i am guilty of the crime!" edward blessed the bread; godwin made an effort to swallow, choked and died. "take away that dog," said the monarch in what would seem an outburst of savage glee. this was on april 15th, 1053, thirteen years before the conquest. godwin in truth died of a fit. it soon was the policy of the monkish chroniclers to write down the national party of which he had been the head, a fact which explains the fable were it worth serious examination. more interesting to note the survival of the rite in the still current rustic formula, "may this bit choke me if i lie!" if the ordeal proved a man guilty, the punishment was fine, death or outlawry, but even if he escaped, the assize of clarendon (1164) ordered that, in certain cases, he should abjure the realm. by that time compurgation was gone; in 1215 the lateran council issued a solemn decree against trial by ordeal; and soon after it had vanished from english law. there is a curious reference to it in the state trials as late as 1679. john govan, a jesuit priest, was indicted in that year at the old bailey for an alleged share in the popish plot. with some hesitation he claimed the right of trial by ordeal as an ecclesiastical privilege of a thousand years' standing, but scroggs and north peremptorily refused to listen to his plea. "we have no such law now," said the latter. sir james stephen assures us that the formula, "by god and by my country," wherein, till 1827, a prisoner must answer the question how he would be tried, sets forth a memory of it. of the customs akin to trial by ordeal only one can find mention here. it was held that if the murderer touched, nay, even approached, the body of his victim, the wounds gushed forth blood, thus in _richard the third_, "dead henry's wounds" are seen "to open their congealed mouths and bleed afresh" as gloucester draws near the bier. and according to one of the picturesque legends of english history, when richard the lion-heart encountered at fontevrault his father's body, the blood gushed from the nostrils of the dead king, a proceeding which, as richard's offence was at the worst but unkindness, showed a somewhat excessive sensibility on the part of the royal clay. the oddest and latest case of all is from scotland. in 1688 philip stanfield was tried for parricide at edinburgh; one count of the indictment stated how his father's body had bled at his sacrilegious touch. the lord advocate, sir george mackenzie of rosehaugh, the "bluidy mackenzie" of covenanting legend and tradition, conducted the prosecution, and philosophic and cultured jurist as he was, he yet dwelt with much emphasis on the portentous sign. there was no lack of more satisfactory if more commonplace evidence, and young stanfield assuredly merited the doom in the end meted out to him. wager of battle judicial combat is a fascinating yet perplexing subject, having many side-issues whereupon the writer must sternly refrain. the case of david and goliath was gravely urged (a.d. 867) as a precedent to pope nicholas i., and by him disdainfully put aside. the thing itself was unknown in roman law, though the old legend of the horatii and curatii was part of its lore. but it was of the essence of chivalry, and the duel and the prize-fight were its legitimate offspring. "where the hazel grew," so mr george nelson, our chief modern authority, picturesquely defines its region, but our attention here must be limited to england. that it was _not_ with us before the conquest moves bishop stubbs to something of the scholar's mild amazement. the normans, it seems clear, brought it with them from their continental home. a native accused of a serious crime by one of the invaders was tried by ordeal of battle, but a norman had choice of the oath as well, and it was also used to decide which of the claimants should have a disputed piece of land. after the legal reforms of henry ii., it became an alternative proceeding in a limited class of actions. these were the writ of right (the most solemn method of trying title to land), accusations of murder, and treason. it had place only in appeals, in actions, that is to say, brought not in the king's name, but by an interested subject here called the appellor, against whom the accused or appellee might offer to prove his innocence by his body. the appellor must accept the challenge unless he were maimed by age or wound. likewise he could "oust the battle" (_i.e._ prove this mode of trial improper) if the accused were caught red-handed. the parties exchanged gloves, and gave pledges or wads (_vadiare bellum_); whence came wager of battle, afterwards the technical term for the whole process. in civil cases, if the litigants came to terms, the judge exacted a fine, called the concord, while he who fought and lost must pay the mulct of recusancy. in criminal matters he who resisted not till the stars shone forth was branded as recreant or craven and was forthwith strung up, and all his goods were declared forfeit. the charters of exemption purchased from overlord or king show how hateful the system was to the old english citizen. henry i. enacted for a consideration that no londoner should do battle, and in due course the men of winchester, lincoln, and northampton obtained the like privilege. the story of leicester is worth the telling. in the time of henry i. earl robert of mellant ruled the town. it chanced that two burghers, nicholas and jeffrey, waged battle on a plea of land. for nine long hours they mauled each other with varying fortune, when one of them took to flight, and staggered, all unwitting, on the edge of a pit. the other saw his danger, and remembered that they twain were kinsmen. "'ware o' the pit," he shouted; "turn back, lest thou fall therein." the spectators so lustily roared their approval, that the earl heard it in his castle, and he, after due enquiry, granted that in time coming twenty-four jurors of leicester should determine all civic disputes. one strange product of trial by combat was the approver: a rascal who turned king's evidence, and fought with his late companions. sometimes he accused other malefactors, and if he came off victor in five combats he was released, and banished the country. this system fell into gross abuse, for the approver, greedy of freedom or hush-money, appealed honest men right and left. in the chronicle of william gregory the skinner (1456) we have an account of a duel fought by one thomas whitehorne, a criminal, caught in the new forest, and lodged in prison at winchester, where he remained for about three years, fighting ever and anon. "and that fals and untrewe peler (= appelar) hadde of the kynge every day 1d. ob." at last a proposed victim retorted the lie in his throat, and said that "he wold prove hyt with hys handys and spende hys lyfe and blode a-pone hys fals body." then the judge "fulle curtesly informed this sympylle man" that "he and the peler moste be clothyed all in whyte schepys leter." also each must have a stave of green ash, three feet long, the point thereof "a horne of yryn i-made lyke unto a rammy's horne;" and if these ash-plants broke, then they "moste fight with hyr handys, fystys, naylys, tethe, fete, and leggys." moreover, they must strive fasting on the "moste sory and wrechyd greene about the town;" but "huyt ys to schamfulle to reherse alle the condycyons of thys foule conflycte." and we must follow gregory's precept rather than his example. the appellee, asking for inquiry as to his character, was reported "a fyscher and tayler of crafte," and therewith the "trewyste laborer and the moste gentellyte." the peler, with brazen insolence, offered _his_ character for inspection. there was much dubiety as to where and how he had lived when at large, but "hange uppe thome whythorne" was the response of every reference he tendered. at last the day came. the appellee, as became an innocent man, told his beads, and prayed long and earnestly, and wept full sore, and all present prayed for and with him. the "fals peler" scoffed thereat. "thou fals trayter," yelled he; "why arte thou soo longe in fals bytter beleve?" the defendant's sole answer was so lusty a thwack that his staff flew all to pieces. thereupon the peler's stave was taken away from _him_; "ande thenn they wente togedyr by the neckys," so using teeth and fist, "that the lethyr of clothing and fleshe was alle to rente in many placys of hyr bodys." it fared ill at first with the "meke innocent." his opponent had him down on the ground, and near choked the life out of him. but presently the meek one got up on his knees, and (the combat not being under queensberry rules), "toke that fals peler by the nose with hys tethe, and put hys thombe in hys yee, that the peler cryde owte ande prayde hym of marcy, for he was fals unto god and unto hym." the peler's subsequent record is of the briefest, but, one is thankful to add, of the most edifying description. "and thenn he was confessyd and hanggyd, of whose soule god ha' marcy." amen. "_victus est et susp_," so for epitaph wrote the official scribe against his name. and the exchequer parchments knew him and his "_1d. ob. per diem_" no more. the champion, now but the shadow of a name, was a nobler offshoot of the system. originally a witness, he was finally indispensable in civil cases wherein--for a legal reason not here to be discussed--the parties themselves must not engage. he was the proper advocate for churchmen, for women, and for the crown; and his last appearance for royalty was in 1820, at the coronation of george iv. the dymocks have held the manor of scrivelsby in lincolnshire for centuries by this tenure, and possibly their representative claimed a part in the pageant on the two subsequent occasions, but to have him ride up westminster hall in full armour and clang his gauntlet on the floor (as he did of old) would have savoured too much of drury lane pantomime for the taste of a cynical age. the champion's dress and bearing were minutely ordered. his head (_e.g._) was shaven, but whether this was to give no hold to his foe, or to fulfil some old superstition, is still in debate among the learned. in the end he was usually a hireling, which fact may very well have accentuated the absurdity of the system. at any rate, towards the close of the thirteenth century it was only kept alive by the approvers. then chivalry came with its treason duel, and by the time of richard ii. the chivalry court was in full swing. its forms, mainly imported, were after this wise. upon the accusation and the exchange of gloves, time and place were assigned for the duel, and here the lists were set and staked. there were two gates, and hard by each a pavilion--one eastward for the appellant, and the other westward for the defendant. to the south was the judge's seat; and right and left were benches for the high-born, while the commons were made free of the unenclosed field. near the judge an altar was decked with relics; and not far off there stood a gibbet and a scaffold. men-at-arms were stationed between the palisades. there were heralds in gay tabards, a priest in full canonicals stood at the altar--but it were wearisome to enumerate all the officials. the trial was held not less than forty days after the challenge; and the time being come, the heralds demanded silence; and the appellant was summoned three times by voice and by sound of trumpet. as he marched forward he was addressed by the constable, "who art thou, and wherefore comest thou armed to the door of these lists?" his answer given, he was taken to his pavilion, and afterwards was made to swear on the altar that his cause was just. the other did in like fashion. then the pavilions were replaced by chairs whereon the combatants might take an occasional rest. napkins holding a loaf and a bottle of water were hung on opposite ends of the lists. the marshal cried three times "_laissez les aller_," and the pair went at it. far better death than defeat. if either yielded, the marshal cried "hoo," to declare the combat at an end. then the wretch was taken to the scaffold on which his shield was hung reversed, his sword was broken, and his spurs hacked from his heels. he was now taken to the church where a mass for the dead was sung over him, and at last he was haled to the gibbet where the hangman claimed his prey. this is the form of judicial combat that caught the fancy of our great writers. in chaucer's _knight's tale_ there is the elaborate set to between palamon and arcite. in shakespeare's _richard ii._ there is the fiasco of norfolk and hereford. in _lear_ we have the fight to the death between edmund and edgar, and "every schoolboy knows" the templar's duel in _ivanhoe_. chivalry passed, yet not the half-forgotten wager of battle. a claim so to determine a civil dispute was made in 1571, to the great perplexity of the lawyers. elaborate preparations were made, but the case was settled in other fashion. under james i. bills were introduced into parliament to abolish it, but they fell through, and in 1774, at the beginning of the north american troubles, when it was proposed to punish the new englanders by depriving them of the appeal of murder, dunning, afterwards lord ashburton, described it as that great pillar of the constitution. burke concurred, and the motion was lost. perhaps they have it yet in the states, at least dr cooper, in editing, in 1857, the statutes at large of south carolina, treats wager of battle as an existing fact. in england the end came in dramatic fashion. in may 1817 mary ashford--a young woman of langley in warwickshire, was found drowned under suspicious circumstances. a certain abram thornton was suspected of the murder; he was tried and acquitted, but there was much evidence against him, and he had played so ill a part in a horrid though vulgar tragedy that the relatives of the dead girl cast about to carry the matter further. now, an old act provided that no acquittal by jury should bar an appeal of murder, so william ashford, mary's brother, appealed thornton in the court of king's bench. he was attached, and when called upon pleaded "not guilty, and am ready to defend the same by my body." he then threw down his glove on the floor of the court. it was a curious turn; for no doubt men thought that he would put himself upon the country, and stand a second trial by jury. there was much legal argument (set forth at great length in the reports of the time), for the prosecuting counsel tried hard to "oust his battle," but to no purpose, and in the end thornton was set free. in 1819, two years after the drowning of mary ashford, the appeal of murder act (59 geo. iii. c. 46) abolished the last remnant of wager of battle. the press-gang smollett, galt, marryatt, and the other naval novelists, not those well-nigh forgotten dry-as-dusts whose works encumber the back shelves of our law libraries, are the authorities for the press-gang of popular imagination. the sea-port invaded, the house surrounded at dead of night by man-o'-war's men with stout cudgels, and by naval officers with cutlasses; the able-bodied mariner knocked down _first_ and _then_ bid stand in the king's name; the official shilling thrust into his reluctant palm before he is hauled off in irons--who has not devoured with joy this wild romance, with its tang of the sea, its humour and rough frolic, the daring and exciting prelude to much more daring and more exciting achievements? but how far can we trust these entertaining authors? and what was the legal status of the press-gang? we are like to get nearest the truth in a law case with its official documents and sifted evidence and considered decision. the trial of one alexander broadfoot for the murder of one calahan is the best available. in the april of 1774 h.m.s. _mortar_ lay at anchor off bristol. the captain held a warrant of impressment, but he could delegate his authority only to a commissioned officer, whose name must be inserted in his order; and the only one aboard was the lieutenant. on the 25th the ship's boat was sent down channel, _with neither captain nor lieutenant_ to look for men. she had no luck till evening, when she came across the _bremen factor_, a homeward bound merchantman, still some leagues from port, but beating thitherward up channel. the man-o'-war's men having boarded her, were proceeding to search the hold, when they were confronted by broadfoot, the boatswain, armed to the teeth. he demanded what they came for. "for you and your comrades," was the plain and honest, though no doubt irritating answer. "keep back, i have a blunderbuss loaded with swan shot," said broadfoot, levelling his piece. the press-gang stopped. "where is your lieutenant?" he went on. (evidently this boatswain knew a little of the law.) "he is not far off," was the evasive answer, showing that the man's acts and words had impressed his assailants. did broadfoot grasp the fact that they were trespassers? at any rate, he let fly, killed calahan on the spot, and wounded two others. he was tried at bristol, and acquitted of the capital charge--for the action of the man-o'-war's men was plainly irregular; but he was found guilty of manslaughter, for that he had used more force than was necessary. another case is that of robert goldswain, a small freeholder at marlow, in bucks. in the march of 1778 he was a bargeman on the thames, engaged in carrying timber to the king's yard; with a protection order from the navy board to him by name so long as he should continue in that service. but these were troubled times, the french had just declared for the revolted american colonists and our war-ships were frightfully undermanned; so, on the 16th of march, the admiralty fixed the next night for a general press on the thames, with direction to seize--despite protection orders--on all sailors and watermen whatsoever, saving and excepting merchant skippers and men exempted by special acts. goldswain was in the net, and was passed from ship to ship down to the nore, where his captors were overtaken by an order from the court requiring a return to a writ of habeas corpus issued on his behalf. counsel's argument for the admiralty--that the device of first issuing protection orders to lure sea and watering men from their lurking-places, and then pouncing on them under the authority of a general press, was excellent--did not commend itself to the court, which, in the battle over poor goldswain's body, suspected some antagonism between the admiralty and the naval board. in the end my lords gave way, and marlow received again her ravished freeholder. during the strain and stress of our eighteenth century war-making, when we had every need of seamen to man our battle-ships, and could not afford the market price for them, there was much impressment, and through frequent appeals to the courts the law on the subject was exactly determined. it was a prerogative of the crown, a remnant of larger rights which at one time took in soldiers and ships, or their equivalent in cash (hampden's famous trial scarce needs mention); it could not be justified (it was allowed) by reason, but only by public necessity. on command of the king all sea and river-faring men were liable to naval service in time of war. the right to impress was founded on immemorial usage, for, though given by no statute, it was recognised by many. it was so held on the authority of a case in queen elizabeth's reign: the sole customary exception was a ferryman; but merchant captains were in practice likewise allowed to go free. only in charles i.'s reign, when all the crown prerogatives were jealously overhauled, was there any serious questioning of its legality, but it was exercised by the commonwealth as well as by the monarchy. given up in fact some fifty years since, it has never been so in law. you find in horner's _crown practice_ (1844) a form of _habeas corpus ad subjiciendum_ for impressed men, with the comment that it is little needed now. of the enormous number of commissions and statutes relating to impressment, an example taken here and there must suffice. the acts express amazement and virtuous indignation at mariners unwilling to serve. one (_temp._ henry vii.) sets forth that such as are chosen, and have received their wages, shall, if they give leg-bail, be amerced in double, and go to prison for a year--when they are caught. another (_temp._ philip and mary) reproves the thames watermen who, in pressing time, "do willingly and obstinately withdraw, hide, and convey themselves into secret places and outcovers; and, after the said time of pressing is o'erpassed, return to their employments." after the revolution an attempt was made to establish a naval reserve by means of a voluntary register, and so do away with impressment, but this was a complete failure. then, to foster the coal and other trades, certain exceptions were granted; and still later, sailors in outward bound merchantmen were exempted because of the hardship inflicted on their employers (the hardship of the sailor impressed in sight of port after a long voyage was not considered). when a warship fell in with a merchantman on the high seas she impressed what men she would. british sailors found on board american vessels were hauled out forthwith, and this was one cause of the war of 1812. press-gang stories, more or less authentic, are numerous. here are samples which serve to show that the searchers did not nicely discriminate between those who were and were not legally subject to impressment. a well-dressed man was seized. he protested that he was a gentleman of position. "the very boy we want," gleefully replied his captors; "for we've such a set of topping blackguards aboard the tender, that we wanted a gentleman to teach 'em manners." sham press-gangs for the black-mailing of honest citizens were common. in one case a couple had given all their money to go free, when the real gang coming up made booty of both parties, and had them aboard in no time. the quarrymen at denny bowl, sixty strong, were heard to brag in their cups what _they_ would do did the press-gang dare to molest _them_, whereupon "three merry girls" got into breeches, put cockades in their hats, took sword and pistol, and advanced, when the quarrymen ran like hares. and to conclude, there is the legend of the gang that raided "the cock and rummer" in bow street. they seized the cook. the customers, fearing for their dinner, or themselves, rushed to the rescue. long the strife hung dubious, when the constable (he ought to have been a bow street runner) stalked in. the gang, with a fine sense of humour, let the cook go, seized _him_, and away at a great rate, though not fast enough to get clear. sumptuary laws "act of parliament" is a term apt to mislead. to-day it is enforced by so powerful a machinery that practice conforms to precept; but in mediæval england much law was dead letter. statutes were often mere admonitions; they expressed but an ideal, a pious intention. this was specially true of the sumptuary laws, whereby the dress and food of the king's subjects were nicely regulated. if you turn over a book of costumes you find that man's attire has varied more than woman's. the sorts and conditions of men were marked by rigid lines. this fact was shown forth in their dress, and that again re-acted on their modes of thought and habits of life. "men's apparel," says edmund spenser, "is commonly marked according to their condition, and their conditions are often-times governed by their garment, for the person that is gowned is by his gown put in mind of gravity, and also restrained from lightness by the very unaptness of his tweed." of old time man's dress was rich and varied, but how to catch its vanished effect? in courts of justice there is still the splendid, if occasional, bravery of the judge. see the same man in private, gaze on divinity disrobed, and the disenchantment measures for you what is lost in the splendid garb of other days. in mediæval europe the church first condemned a too ornate appearance. thus, under our early norman kings, long hair was much in vogue. in 1104 bishop serlo, preaching before henry i. and his court in normandy, attacked this fashion roundly, compared his hearers to "filthy goats," and moved them by his eloquence to tears of contrition. he saw and seized that softer hour. descending from the pulpit he then and there clipped the polls of them that heard him till he must fain sheath his shears for lack of argument. this rape of the locks was followed by a royal edict against long hair. alas! for this story. rochester cathedral still bears the effigies of henry and maud his queen; each is adorned even as absalom, and time, whilst it has mauled their faces in cruel fashion, has with quaint irony preserved intact those stone tresses. two centuries pass ere the sumptuary laws proper begin. the 10 edward iii. c. 3 (1336) ordered that no man was to have more than two courses at dinner, nor more than two kinds of meat, with potage in each course; but on eighteen holidays in the year the lieges might stuff at will. next parliament common folk were forbidden to wear furs; but the 37 edward iii. was the great session for such work, made needful (it was thought) by the sudden increase of luxury from the plunder of the french wars. some half-dozen acts prescribed to each rank, from peers to ploughmen, its wear; nay, the very price of the stuff was fixed; whilst all wives were to garb themselves according to their husbands' means--a pious wish, repeated a century afterwards, in an act of the scots james ii. the veils of the baser sort were not to cost more than 12d. apiece: embroidery or silk was forbidden to servants, and these were to eat of flesh or fish but once a day. cloth merchants were to make stuff enough, and shopkeepers to have stock enough, to supply the anticipated demand. such apparel as infringed the statute was forfeit to the king. the knight's dress will serve for sample of what was required. it was to be cloth of silver, with girdles reasonably embellished with silver, and woollen cloth of the value of six marks the piece. under richard ii. monstrous sleeves were much affected. a monkish scribe inveighs bitterly against these "pokys, like bag-pipes." some hung down to the knees; yea, even to the feet. servants were as bad as their masters! when potage is brought to table, "the sleeves go into them and get the first taste." nay, they are "devil's receptacles," since anything stolen is safely lodged therein. and so a statute of the time prohibited any man below a banneret from wearing large hanging sleeves, open or closed. the fashion changed to _dagges_, a term explained by the 8th of henry iv., which forbade "gown or garment cut or slashed into pieces in the form of letters, rose-leaves, and posies of various kinds, or any such devices." the fantastic peaked shoes of the fifteenth century, sometimes only held up by a chain from the girdle, were fair mark for the lawgiver, and under edward iv. no less person than a lord was allowed peaks exceeding two inches. an act in the same reign banned the costly head-gear of women. henry viii. saw to men's garb as well as their beliefs. his first parliament forbade costly apparel, and there is preserved in the record office a letter from wolsey enclosing to the king, at his request, the act of apparel, with an abstract, for examination and correction. exemptions were not unknown: thus, in 1517, henry conway of bermondsey obtained license to wear "camlet, velvet, and sarcenet, satin and damask, of green, black, or russet colour in his clothing." under queen mary common folk who wore silk on "hat, bonnet, girdle, scabbard, hose, shoes, or spur-leathers," were grievously amerced. under elizabeth the regulations were numberless: thus there is an act for "uttering of caps, and for true making of hats and caps." no one was to engage in this business unless he had been "a prentice or covenant servant" by the space of seven years. no one under the degree of knight was to wear a cap of velvet. but these were not pure sumptuary regulations: they were for protection of home industries. a statute of the previous reign had declared that no man was to buy more than twelve hats or caps, be it out of this realm; and a previous act of elizabeth had strangely provided that if anyone sold foreign apparel on credit for longer than eight days to persons not having £3000 a year he should be without legal remedy against his debtor. on the 15th june 1574, an elaborate proclamation complained of "the wasting and undoying of a great number of young gentlemen" who were "allured by the vayne shewe of those thyngs." a schedule was appended in which the costumes prescribed for all sorts and conditions of men were set forth. in the star chamber on june 12th, 1600, my lord keeper gravely admonished the judges to look to all sorts of abuses--"solicitors and pettifoggers," "gentlemen that leave hospitality and housekeeping and hide in cities and borough towns," "masterless men that live by their sword and their wit, meddlers in princes' matters and libellers," and last, but not least, "to the vanity and excess of woman's apparel." all was in vain, if we are to believe the fierce invective of stubb's _anatomie of abuses_. "there is now," he groans, "such a confused mingle-mangle of apparel, and such preposterous excess thereof as every one is permitted to flaunt it out in whatever apparel he listeth himself, or can get by any kind of means." it was horrible to hear that shirts were sold at £10 a piece, and "it is a small matter now to bestow twenty nobles, ten pound, twenty pound, forty pound, yea, a hundred pound, of one pair of breeches (god be merciful to us!)" after this aught else were anti-climax, and so for the women he can only say they were worse than the men. a new order of things came in with the next reign, for the act jac. i. c. 25, sec. 45, repealed at one stroke all statutes against apparel. in scotland they kept up the game some time longer, but one need not pursue the subject there, though a curious statute of the scots james ii. (1457) must have a word. it provided that "na woman cum to kirk nor mercat with her face mussled that she may nocht be kenn'd under the pain of escheit of the curchie" (forfeiture of the hood). in ireland there was a law (says spenser) which "forbiddeth any to weare theyre beardes on the upper lip and none under the chinn:" another "which putteth away saffron shirtes and smockes," and so forth; but these were of english importation. in the north american colonies sumptuary legislation has a history of its own. in massachusetts an edict of september 1639, declaims against the "much waste of the good creatures (not the tipplers, but the tipple) by the vain drinking of healths," which practice is straightway forbidden. excess or bravery of apparel is condemned, and no one is to wear a dress "with any lace on it, silver, gold silk, or thread under the penalty of forfeiture." again, it is provided that children or servants are not to have ornamental apparel. here is an individual case. robert coles, in march 1634, for drunkenness is disfranchised and condemned for a whole year to "wear about his neck, and so to hang upon his outward garment a d made of red cloth and set upon white"--a very unromantic scarlet letter! these things, too, passed away, but in the maine liquor law of 1851, one traces the revival of the old idea. in england the thing lived not again. under the commonwealth public opinion enforced a "sober garb." charles ii. had some idea of a national costume, but he was too wise or too careless to attempt legislation. in 1747 the wearing of the highland dress was forbidden, but that was policy, just as centuries before the jews had a special garb ordained for them. also a number of laws were passed to promote home manufactures: so under charles i. and charles ii. the entry of foreign bone-lace was prohibited, though the second monarch granted licence for importing same to john eaton for the use of the royal family. it would also serve, he coolly remarked, for patterns. there is one other curious example. too much foreign linen was used, and so the 30th of charles ii. c. 3 ordered the dead (save the plague-stricken) to be buried in woollen shrouds. the relatives must file an affidavit with the clergyman as to this, and £5 was the fine for _him_ if he neglected his part. did the vision of that unseemly shroud really disturb poor nance oldfield's last moments, as pope would have us believe? "odious! in woollen! 'twould a saint provoke!" were the last words that poor narcissa spoke. "no: let a charming chintz and brussels lace wrap my cold limbs and shade my lifeless face!" "narcissa" had her wish: the "brussels lace" of her head-dress, her "holland shift," a "pair of new kid gloves on her cold hands," were the talk of the town; so they tricked her out for westminster abbey. almost up to waterloo the act lingered on the statute book, till some ingenious rascal brought an action against various clergymen for the £5 penalty, for that they had not certified to churchwardens the cases of non-compliance. and so, in 1814, the 54th george iii. c. 108 swept away the strange provision. printed by turnbull and spears, edinburgh transcriber's notes: text in italics is surrounded with underscores: _italics_. obvious typographical errors have been corrected. inconsistencies in spelling, punctuation, and hyphenation have been standardized. english interference with irish industries. english interference with irish industries. by j. g. swift macneill, m.a., christ church, oxford; barrister-at-law, professor of constitutional and criminal law in the honourable society of the king's inns, dublin; and author of "the irish parliament: what it was, and what it did." cassell & company, limited: _london, paris, new york & melbourne_. 1886. [all rights reserved.] preface. agriculture is at the present time almost the only industry in ireland. this fact has frequently been noticed and deplored. public men of widely different views on other matters agree in their estimate of ireland's economic condition, of which they give but one explanation. thus mr. gladstone, on the introduction of the irish land bill in april, 1881, spoke of "that old and standing evil of ireland, that land-hunger, which must not be described as if it were merely an infirmity of the people for it, and really means land scarcity."[1] "in ireland," says mr. bright, "land, from certain causes that are not difficult to discover, is the only thing for the employment of the people, with the exception of some portion of the country in the north; the income for the maintenance of their homes, and whatever comfort they have, or prospect of saving money for themselves or their families, comes from the cultivation of the soil, and scarcely at all from those various resources to which the people of england have recourse in the course of their industrial lives."[2] "it is generally admitted, i think, on both sides of the house," mr. bright observes in another debate, "that in discussing the irish question one fact must always be kept in mind--that is, that apart from the land of ireland there are few, if any, means of subsistence for the population, and, consequently, there has always been for its possession an exceptional and unnatural demand. this, again, has led to most serious abuses, including nearly all those constant causes of trouble and complaint we are for ever hearing of in ireland."[3] "the truth is," says mr. chaplin, from his place in the house of commons, "that the english parliament and the english people are mainly responsible for those conditions of the country which have driven the people to the land, and the land alone, for their support. it was not always so; there were other industries in ireland in former days, which flourished, and flourished to a considerable extent, until they first aroused, and were afterwards suppressed by, the selfish fears and commercial jealousy of england--england, who was alarmed at a rivalry and competition that she dreaded at the hands and from the resources and energy of the irish people."[4] "i am convinced that it is in the history of these cruel laws that lies the secret of that fatal competition for the land, in which--and it may well be a just retribution upon us--the source of all the troubles and all the difficulties that you have to deal with will be found."[5] "to understand the irish land question of to-day," writes sir c. russell, the present attorney-general for england, "it is necessary to look back. i have no desire needlessly to rake up bygone wrongs. i wish to heaven the irish people could forget the past. for them it is in the main a melancholy retrospect. but england ought not to forget the past--until, at least, a great act of reparation has been done. even among men of some education in england, remarkable ignorance of the evil wrought in past times by england towards ireland prevails. there is, indeed, a vague general impression that in very remote times england, when engaged in the endeavour to conquer ireland, was guilty of cruelties, as most conquering nations are, but that those things have done very little harm; that their effects have ceased to tell, and that the only purpose served by keeping alive their memory is to irritate the temper of the irish people and prompt them to look back rather than look forward. emphatically i say this is not so. the effects have not ceased. it is not too much to say that ireland and irishmen of to-day are such as english government has made them." sir charles russell then proceeds to place foremost among "the agencies employed by england which have left enduring evil marks upon ireland," "the direct legislation avowedly contrived to hinder the development of irish commerce and manufactures."[6] "if people felt impatient with the irish," said mr. fawcett, addressing a political meeting at shoreditch on november 2nd, 1881, "they should remember that the irish were, to a great extent, what england had made them. if there were some irishmen now displaying bitter hostility to england, it should be remembered that for a long time ireland had been treated as if she had been a hostile or a foreign country. a mass of vexatious restrictions were imposed on her industry, and it was thought that if any branch of irish trade interfered with english profits, that branch of irish trade was immediately to be discouraged. for a long time, for instance, to please the agricultural interests of this country, the importation of live cattle from ireland was absolutely prohibited." these statements of leading public men are strong evidence of the far-reaching effects upon ireland of a system which mr. john morley, writing on a literary topic, has not hesitated to designate as "the atrocious fiscal policy of great britain,"[7] and for which earl cowper, speaking at belfast as lord-lieutenant of ireland, could find no gentler adjectives than "unjust and iniquitous."[8] in the following pages i propose to exhibit summarily the material injuries inflicted upon ireland by the commercial or anti-commercial arrangements of great britain. with this view, i will endeavour to sketch in outline the political relations of ireland to great britain which rendered such arrangements possible (chap. i.); the principal laws made by the english parliament in restraint of irish trade stating them in a plain and popular manner (chap. ii.); the opposition of the english government to the efforts of the irish parliament to promote irish trade (chap. iii.); the immediate effects of english legislation on irish trade (chap. iv.); the irish volunteer movement and free trade (chap. v.); the commercial arrangements between great britain and ireland, 1782-1800 (chap. vi.); the commercial arrangements effected between great britain and ireland by the act of legislative union (chap. vii.). in this inquiry i will, as far as possible, confine myself to an examination of the statutes, which will speak for themselves; to the journals of the parliaments of england and ireland; and to the statements of contemporary speakers and writers whose accuracy has not, so far as i am aware, been impeached. footnotes: [1] hansard, 260, third series, p. 893. [2] hansard, 261, third series, p. 96. [3] hansard, 261, third series, pp. 831, 832. [4] hansard, 261, third series, p. 851. [5] hansard, 261, third series, p. 853. [6] "new views on ireland," by c. russell, q.c., m.p., pp. 83, 84. [7] "english men of letters"--"edmund burke," by john morley, p. 76. [8] _freeman's journal_, nov. 24th, 1881. contents. page chapter i. the political relations of ireland to great britain 13 chapter ii. english legislation in restraint of irish trade 16 chapter iii. english opposition to efforts of the irish parliament in favour of irish trade 42 chapter iv. the immediate effects of english legislation on irish trade 56 chapter v. the irish volunteer movement and free trade 74 chapter vi. the commercial arrangements between england and ireland, 1782-1800 91 chapter vii. the commercial arrangements between england and ireland effected by the act of legislative union 104 english interference with irish industries. chapter i. the political relations of ireland to great britain. the interference of the english government with irish trade before 1782 was twofold, direct and indirect. the direct interference arose from statutes passed in the english parliament in restraint of irish commerce. the indirect interference arose from the influence of the english government over the legislation of the irish parliament, under the provisions of the statute known as poynings' act. "from the admitted dependence," says mr. butt, "of the crown of ireland upon that of england, arose the claim of the english parliament to legislate for ireland. over all the colonies and dependencies of the british crown, the british parliament had exercised the right of legislation. over ireland they asserted the same right. i need not tell you how fiercely it was contested, and that it was finally abandoned in 1782. but, up to 1782, the right was asserted, and occasionally exercised."[9] these english statutes were chiefly aimed against the irish manufactures, and were, of course, clear violations of ireland's parliamentary independence. the 6th geo. i. passed by the english parliament[10] claimed the power of british legislation over ireland, a power which had been exercised long previously. "if that power," said mr. o'connell, "so claimed, had really existed, where was the necessity for passing that statute? and while this act proclaims the slavery of ireland, it admits the pre-existence of freedom."[11] the nature and effects of poynings' act, and the control given to the english government by its provisions over irish legislation, are thus concisely stated by mr. butt: "to complete our view of the irish parliament, we must remember that by an act of that parliament itself a most important restriction was placed upon its legislative powers. by an irish act of parliament, passed in the reign of henry vii., in the year 1495, it was enacted that no bill should be presented to the irish parliament until the heads of it had been submitted to the english privy council, and certified as approved of under the great seal of england. this law is known as poynings' law, from the name of the person who was lord deputy when it was passed. this law was a matter entirely distinct from any claim of the english parliament to legislate for ireland; it was a law of the irish parliament itself, passed by the king, lords, and commons of ireland, deriving its authority from a source entirely independent of the english claim, and continuing in force when that claim was abandoned. the original law required the assent of the english privy council to be given to the intended bill before parliament met. in the reign of queen mary it was modified so as to admit of that assent being given while parliament was sitting; but that assent was still necessary to authorise the introduction of the bill. with this modification the law of poynings continued in force up to 1782."[12] we see, accordingly, that england claimed or exercised direct legislative control in her own parliament over ireland; while no irish bills could become law or, indeed, in strictness, be introduced into the irish parliament without the sanction of the english privy council.[13] "ireland," says mr. froude, "was regarded as a colony to be administered, not for her own benefit, but for the convenience of the mother country."[14] footnotes: [9] "proceedings of the home rule conference," 1873, p. 8. [10] 6 geo. i., c. 5 (eng.). [11] "report of the discussion in the dublin corporation on repeal of the union," 1843, p. 23. [12] "proceedings of the home rule conference," 1873, pp. 8, 9. [13] for further account of the constitution and powers of the irish parliament, see "the irish parliament: what it was, and what it did," by j. g. swift macneill, published by cassell & company, limited. [14] "english in ireland," vol. i., p. 178. chapter ii. english legislation in restraint of irish trade. persons familiar with the relative economic conditions of great britain and ireland at the present time, will find it difficult to realise that at one period ireland enjoyed natural advantages in no respect inferior to those of the sister country. this, before the development of steam-power, was undoubtedly the fact. this would be still the case were it not for the dearth of coal in ireland.[15] the evidence of public men of the last century, who were well acquainted with the circumstances of both countries, is on this point conclusive. "ireland," writes edmund burke in 1778, "is a country in the same climate and of the same natural qualities and productions with this (england)."[16] "in ireland," writes hely hutchinson in 1779, "the climate, soil, growth, and productions are the same as in england."[17] plunket, in his speech against the union, delivered in the irish parliament on the 15th of january, 1800, draws a comparison between england and ireland, in which he describes england as "another happy little island placed beside her (ireland) in the bosom of the atlantic, of little more than double her territory and population, and possessing resources not nearly so superior to her wants."[18] mr. froude's researches lead him to a similar conclusion: "before the days of coal and steam, the unlimited water-power of ireland gave her natural advantages in the race of manufactures, which, if she had received fair play, would have attracted thither thousands of skilled immigrants."[19] i do not propose to furnish an exhaustive statement of the various laws passed by the english parliament for the avowed purpose of destroying irish trade and manufactures. i will deal only with the salient features of that system whose effects are, at the present day, sadly apparent. till the reign of charles ii., england placed no restriction on irish commerce or manufactures. "before the restoration," says lord north, in the british house of commons, "they (the irish) enjoyed every commercial advantage and benefit in common with england."[20] "ireland," writes hely hutchinson, "was in possession of the english common law and of magna charta. the former secures the subject in the enjoyment of property of every kind, and by the latter _the liberties of all the ports of the kingdom are established_."[21] "our trade," says mr. gardiner in the irish house of commons, "was guaranteed by magna charta, our exports acknowledged by that venerable statute--no treaty was made in which we were not nominally or virtually included."[22] by one of the provisions of poynings' law, passed in 1495, all statutes hitherto in force in england were extended to ireland. before that enactment, however, ireland is expressly mentioned in several english commercial statutes, in which clauses are inserted for the protection of her trade.[23] "at this period (1495)," says hely hutchinson, "the english commercial system and the irish, so far as it depended on english statute law, was the same; and before this period, so far as it depended on the common law and magna charta, was also the same. from that time till the 15th of king charles ii., which takes in a period of 167 years, the commercial constitution of ireland was as much favoured and protected as that of england."[24] the first navigation act of 1660 put england and ireland on exact terms of equality.[25] this community of rights was emphasised by an act of the following year, which provided that foreign-built ships should not have the privilege of ships belonging to england and ireland.[26] "but," as mr. froude observes, "the equality of privilege lasted only till the conclusion of the settlement and till the revenue had been assigned to the crown."[27] in the amended navigation act of 1663, ireland was left out. lord north, on december 13, 1779, when prime minister of england, in introducing a bill to abrogate some of the restrictions on irish trade, thus described the act of 1663: "the first commercial restriction was laid on ireland not directly, but by a side-wind and by deductive interpretation. when the act (the navigation act of 1660) first passed there was a general governing clause for giving bonds to perform the conditions of the act; but when the act was amended in the 15 car. ii. the word 'ireland' was omitted, whence a conclusion was drawn that the acts of the two preceding parliaments, 12 & 13 and 14 car. ii., were thereby repealed, though it was as clearly expressed in those acts as it was possible for words to convey, that ships built in ireland, navigated with the people thereof, were deemed british, and qualified to trade to and from british plantations, and that ships built in ireland and navigated with his majesty's subjects of ireland, were entitled to the same abatement and privileges to which imports and exports of goods in british-made ships were entitled by the book of rates. ireland was, however, omitted in the manner he had already mentioned."[28] this act, which is entitled "an act for the encouragement of trade," prohibited all _exports_ from ireland to the colonies.[29] it likewise prohibited the importation of irish cattle into england. it states that "a very great part of the richest and best land of this kingdom (england) is, and cannot so well otherwise be employed and made use of as in the feeding and fattening of cattle, and that by the coming in of late in vast numbers of cattle already fatted such lands are in many places much fallen, and like daily to fall more in their rents and values, and in consequence other lands also, to the great prejudice, detriment, and impoverishment of this kingdom;"[30] and it imposes a penalty on every head of great cattle imported. a subsequent british act declares the importation of irish cattle into england to be "a publick and common nuisance."[31] it likewise forbids the importation of beef, pork, or bacon. butter and cheese from ireland were subsequently excluded, and the previous statute excluding cattle was made perpetual.[32] in 1670 the exportation to ireland from the english plantations of sugar, tobacco, cotton-wool, indigo, ginger, fustic or other dyeing wood, the growth of the said plantations, was prohibited by statute. it is stated in the statute that this restraint was intended by the act of 1663, but not effectively expressed.[33] "there are," says lord north, "anecdotes still extant relative to the real causes of those harsh and restrictive laws. they were supposed to have originated in a dislike or jealousy of the growing power of the then duke of ormonde, who, from his great estate and possessions in ireland, was supposed to have a personal interest in the prosperity of that kingdom. indeed, so far was this spirit carried, whether from personal enmity to the duke of ormonde, from narrow prejudices, or a blind policy, that the parliament of england passed a law to prohibit the importation of irish lean cattle."[34] an extensive and profitable cattle trade which ireland had established with bristol, milford, and liverpool was annihilated by this legislation. with the restriction of her chief exports, her shipping trade suffered a simultaneous eclipse. such direct trade as she retained was with france, spain, and portugal, as if england wished to force her, in spite of herself, to feel the catholic countries to be her best friends.[35] till 1663 the irish had, according to carte, no commerce but with england, and scarcely entertained a thought of trafficking with other countries.[36] this writer gives melancholy evidence as to the immediate effect of that restrictive legislation. "the people," he says, "had no money to pay the subsidies granted by parliament, and their cattle was grown such a drug, that horses that used to be sold for 30s. were now sold for dogs' meat at 12d. apiece, and beeves that brought before 50s. were now sold for ten."[37] deprived of their trade, the irish people, under the guidance of the duke of ormonde, set themselves resolutely to improve their own manufactures. "the history of ireland," says chief justice whiteside, "for nigh half a century may be read in the life, actions, and adventures of this able, virtuous, and illustrious man. his chivalrous courage, his unflinching loyalty, his disinterested patriotism, mark him out as one of the foremost men of his noble family, and as one of the finest characters of his age."[38] in 1692, lord sydney, the lord-lieutenant, in his speech from the throne, was able, from his former knowledge of the country, to testify to its vastly increased prosperity.[39] "the cause of this prosperity should," says hely hutchinson "be mentioned. james, the first duke of ormonde, whose memory should ever be revered by every friend of ireland, to heal the wound that this country had received by the prohibition of the export of her cattle to england, obtained from charles ii. a letter, dated the 23rd of march, 1667, by which he directed that all restraints upon the exportation of commodities of the growth or manufacture of ireland to foreign parts should be taken off, but not to interfere with the plantation laws, or the charters to the trading companies, and that this should be notified to his subjects of this kingdom, which was accordingly done by a proclamation from the lord-lieutenant and council; and at the same time, by his majesty's permission, they prohibited the importation from scotland of linen, woollen, and other manufactures and commodities, as drawing large sums of money out of ireland, and a great hindrance to manufactures. his grace successfully executed his schemes of national improvement, having by his own constant attention, the exertion of his extensive influence, and the most princely munificence, greatly advanced the woollen and revived the linen manufactures."[40] ormonde established a woollen manufactory at clonmel, "the capital of his county palatine of tipperary, bringing over five hundred walloon families from the neighbourhood of canterbury to carry it on, and giving houses and land on long leases with only an acknowledgment instead of rent from the undertakers. also in kilkenny and carrick-on-suir the duke established large colonies of those industrious foreigners, so well skilled in the preparation and weaving of wool."[41] the woollen manufacture was the "true and natural staple of the irish, their climate and extensive sheep-grounds insuring to them a steady and cheap supply of the raw material, much beyond their home consumption."[42] it was cultivated for several years after the revolution without any interference by the english parliament. it had, however, long previously excited the jealous hatred of english statesmen. "i am of opinion," says lord strafford, writing, when lord-lieutenant, from ireland to charles i. in 1634, "that all wisdom advises to keep this kingdom as much subordinate and dependent upon england as is possible, and holding them from the manufacture of wool (which, unless otherwise directed, i shall by all means discourage), and then enforcing them to fetch their clothing from thence, and to take their salt from the king (being that which preserves and gives value to all their native staple commodities), how can they depart from us without nakedness and beggary? which is of itself so mighty a consideration that a small profit should not bear it down."[43] this proposal i will not characterise. "in 1673, sir william temple, at the request of the earl of essex, then viceroy of ireland, publicly proposed that the manufacture of woollens (except in the inferior branches) should be relinquished in ireland as tending to interfere prejudicially with the english trade. in all probability the irish manufacturers of broadcloths would gain on their english rivals, and the improvement of woollen fabrics in ireland, argued the statesman, 'would give so great a damp to the trade of england, that it seems not fit to be encouraged here.'"[44] these suggestions were not immediately acted on. in 1660 no doubt the exportation of irish woollen goods to england was prohibited, but this enactment did not at the time inflict material injury on ireland.[45] in 1697 a bill was introduced into the english house of commons, forbidding all export from ireland of her woollen manufactures. it reached the house of lords, but parliament was dissolved before it passed its final stage in that assembly. the destruction of the woollen trade is one of the most disastrous chapters of irish history. the circumstances attending this transaction are detailed in an appendix to the "report from the select committee on the linen trade of ireland," which was printed on the 6th of june, 1825, by order of the house of commons. this paper was prepared by lord oriel, who, as mr. foster, was chancellor of the irish exchequer and afterwards speaker of the irish house of commons. he was one of the greatest authorities of his time on trade and finance. the report thus describes an incident which is, i believe, without parallel. "this export (the woollen) was supposed to interfere, and very probably did, with the export from britain, and a plan was in consequence undertaken there to annihilate the woollen trade of ireland, and to confine us to the linen manufacture in its place. "accordingly an act was passed in england, 1696 (7 & 8 will., c. 39), for inviting foreign protestants to settle in ireland, as the preamble recites, and with that view enacting that the imports of all sorts of hemp and flax, and all the productions thereof, should from thenceforth be admitted duty free from ireland into england, giving a preference by that exemption from duty to the linen manufacture of ireland over the foreign, estimated at the time, as a report of the irish house of commons, on the 11th february, 1774, states, to be equal to 25 per cent. "this happened in 1696, and in pursuance of the foregoing plan both houses of the english parliament addressed king william on the 9th june, 1698. "the lords stated in their address that 'the growing manufacture of cloth in ireland, both by the cheapness of all sorts of necessaries of life, and the goodness of materials for making all manner of cloth, doth invite your subjects of england, with their families and servants, to leave their habitations and settle there, to the increase of the woollen manufacture in ireland, which makes your loyal subjects in this kingdom very apprehensive that the further growth of it may greatly prejudice the said manufacture here, by which the trade of this nation and the value of lands will greatly decrease, and the number of your people be much lessened here; wherefore we humbly beseech your most sacred majesty that your majesty would be pleased, in the most public and effectual way that may be, to declare to all your subjects of ireland that the growth and increase of the woollen manufacture there hath long and will be ever looked upon with great jealousy by all your subjects of this kingdom, and if not timely remedied, may occasion very strict laws totally to prohibit and suppress the same; and, on the other hand, if they turn their industry to the settling and improving the _linen manufacture_, for which generally the lands are very proper, _they shall receive all the countenance, favour, and protection from your royal influence for the encouragement and promotion of the linen manufacture to all the advantage and profit they can be capable of_.' "the commons stated their sentiments at the same time in the following terms: 'we,[46] your majesty's most dutiful and loyal subjects, the commons in parliament assembled, being very sensible that the wealth and power of this kingdom do in a great measure depend on the preservation of the woollen manufacture as much as possible entire to this realm, think it becomes us, like our ancestors, to be jealous of the increase and establishment of it elsewhere, and to use our utmost endeavours to prevent it. and, therefore, we cannot without trouble observe that ireland, which is dependent on and protected by england in the enjoyment of all they have, and which is so proper for the linen manufacture, the establishment and growth of which there would be so enriching to themselves, and so profitable to england, should of late apply itself to the woollen manufacture, to the great prejudice of the trade of this kingdom, and so unwillingly promote the linen trade, which would benefit both themselves and us; the consequence whereof will necessitate your parliament of england to interpose to prevent the mischief that threatens us, unless your majesty by your authority and great wisdom shall find means to secure the trade of england, by making your subjects of ireland to pursue the joint interests of both kingdoms. and we do most humbly implore your majesty's protection and favour in this matter, that you will make it your royal care, and enjoin all those you employ in ireland to make it their care, and use their utmost diligence, to hinder the exportation of wool from ireland except to be imported hither, and for discouraging the woollen manufacture and encouraging the linen manufacture of ireland, _to which we shall always be ready to give our utmost assistance_.' "his majesty thus replied to the commons[47]:--'_i shall do all that in me lies to_ discourage the woollen manufacture in ireland _and encourage the linen manufacture there_, and to promote the trade of england.' "stronger declarations could not well be made than in these addresses and answers, that if the irish would come into the compact of giving up their then great staple of woollens to england, and cultivating the linens in lieu thereof, they should receive '_all the countenance, favour, and protection for the encouragement and promotion of their linen manufacture to all the advantages their kingdom was capable of_,' that the commons would always be ready to give their utmost assistance, and his majesty would do all that in him lay _to encourage the linen manufacture there_; and they had the effect of inducing the parliament of ireland to accede, as will appear from what follows. "the lords justices of ireland say, in their speech to the irish parliament, the 27th september, 1698:[48] 'amongst those bills there is one for the encouragement of the linen and hempen manufactures. at our first meeting we recommended to you that matter, and we have now endeavoured to render that bill practicable and useful for that effect, and as such we now recommend it to you. the settlement of this manufacture will contribute much to people the country, and will be found much more advantageous to this kingdom than the woollen manufacture, which, being the settled staple trade of england, can never be encouraged here for that purpose; _whereas the linen and hempen manufactures will not only be encouraged, as consistent with the trade of england, but will render the trade of this kingdom both useful and necessary to england_.' "the commons replied: 'we pray leave to assure your excellencies that we shall heartily endeavour to establish a linen and hempen manufacture here, and to render the same useful to england, as well as advantageous to this kingdom; and we hope to find such a _temperament_ in respect to the woollen trade here that the same may not be injurious to england.'[49] in pursuance of this answer they evinced that _temperament_ most effectually by passing an act[50] for laying prohibitory duties on the export of _their own_ woollen manufacture--thus accepting the national compact and fully performing their part of the agreement, and by that performance giving an incontrovertible claim to ireland upon england, and consequently upon great britain, for a perpetual encouragement of the linen manufacture '_to all the advantage and profit that ireland should at any time be capable of_.' "it is to be observed that so anxious was england to confirm and enforce this ratification given by ireland, that their parliament soon after passed a law affecting to enact what subsequent times have shown it was incompetent to, and which we therefore here mention merely to point out the stress which england laid on the sacrifice made by ireland of its great and natural staple trade, in exchange for a new staple resting on a material not the natural growth of the country, and the establishment of which was but in its infancy, though nurtured for near sixty years by the government of the kingdom. the act we refer to is the 10 & 11 will. iii., cap. 10, which recites 'that wool and the woollen manufacture of cloth, serge, bays, kerseys, and other stuffs made or mixed with wool, are the greatest and most profitable commodities of the kingdom, on which the value of lands and the trade of the nation do chiefly depend; that great quantities of the _like manufactures_ have of late been made, and _are daily increasing in the kingdom of ireland_, and in the english plantations in america, _and are exported from thence to foreign markets heretofore supplied from england_: all which inevitably tends to injure the value of lands, and to ruin the trade and woollen manufactures of the realm; and that for the prevention thereof the export of wool and of the woollen manufacture from ireland be prohibited under the forfeiture of goods and ship, and a penalty of â£500 for every such offence.'" ireland's woollen manufacture was thus sacrificed to england's commercial jealousy.[51] i will give hereafter some account of the widespread misery this industrial calamity entailed. it might have been expected that the solemn compact for the encouragement of the linen trade would have been scrupulously observed. this, however, was not the case. the english parliament deliberately broke faith with the irish people. this charge i will substantiate by quotations from the speeches of public men in the english parliament, the words of the english statute book, and the admissions of english writers. lord rockingham, speaking in the english house of lords on the 11th of may, 1779, "reminded their lordships of the compact made between both kingdoms in king william's time, when the parliament of ireland consented to prohibit the export of their own woollen manufacture, in order to give that of england a preference, by laying a duty equal to a full prohibition on every species of woollens, or even of the raw commodity, and of the solemn assurances given by both houses of the british parliament that they would give every possible encouragement, and abstain from every measure which could prevent the linen manufacture to be rendered the staple of ireland. but how had england kept its word? by laying duties or granting bounties to the linens of british manufacture equal to a prohibition of the irish, and at the same time giving every kind of private and public encouragement to render scotland a real rival to ireland in almost every species of her linen fabrics."[52] "ireland," says lord north when prime minister of england, in the speech from which i have previously quoted, "gave up her woollen trade by compact. the compact was an exclusive linen trade, rather a fair competition with england. ireland, of her own accord, gave up the woollen trade by an act of her own legislature, which, when it expired, was made perpetual by an act of the british parliament. but this compact was no sooner made than it was violated by england, for, instead of prohibiting foreign linens, duties were laid on and necessarily collected, so far from amounting to a prohibition on the import of the dutch, german, and east country linen manufactures, that those manufactures have been able, after having the duties imposed on them by the british parliament, to meet, and in some instances to undersell, ireland both in great britain and the west indies, and several other parts of the british empire."[53] writing in 1778 to the opponents of some trifling relaxation of the commercial restraints of ireland, edmund burke asks: "do they forget that the whole woollen manufacture of ireland, the most extensive and profitable of any, and the natural staple of that kingdom, has been in a manner so destroyed by restrictive laws of _their own_, that in a few years it is probable they (the irish) will not be able to wear a coat of their own fabric? is this equality? do gentlemen forget that the understood faith upon which they were persuaded to such an unnatural act has not been kept, and that a linen manufacture has been set up and highly encouraged against them?"[54] in the year 1750 heavy taxes were laid on the import to england of sail-cloth made of irish hemp, contrary, of course, to the express stipulation of 1698. an address presented in 1774 to lord harcourt, the viceroy, by the irish house of commons thus describes the effect of this measure: "they had been confined by law to the manufacture of flax and hemp. they had submitted to their condition, and had manufactured these articles to such good purpose that at one time they had supplied sails for the whole british navy. their english rivals had now crippled them by laying a disabling duty on their sail-cloths, in the hope of taking the trade out of their hands, but they had injured ireland without benefiting themselves. the british market was now supplied from holland and germany and russia, while to the empire the result was only the ruin of ulster and the flight of the protestant population to america."[55] i have dwelt thus at length on the chief commercial restraints laid on ireland by the direct legislation of england. this interference was, however, carried to almost every branch of irish trade. to take a few examples. lord north in the english parliament gives the following account of england's dealings with the irish glass trade:-"previous to the 19th geo. ii., ireland imported glass from other countries, and at length began to make some slow progress in the lower branches of the manufacture itself. by the act alluded to, however, the irish were prohibited from importing any kind of glass other than the manufacture of great britain, and in section 24 of that act a most extraordinary clause was inserted. it not only ordained that no glass, the manufacture of that kingdom, should be exported, but it was penned so curiously, and with so much severe precision, that no glass of the manufacture of ireland was to be exported, or so much as to be laden on any horse or carriage with intent to be so exported. this was, in his opinion, a very extraordinary stretch of the legislative power of great britain, considering the smallness of the object. the act was much, very much complained of in ireland, and apparently with very great justice both as to principle and effect. it was an article of general use in ireland. the manufacturers of glass there, when thus restrained both as to export and import, could not pretend to vie with the british; the consequence of which was that the latter, having the whole trade to themselves, fixed the price of the commodity as they liked."[56] by the 9 anne, c. 12, and 5 geo. ii., c. 2, and 7 geo. ii., c. 19, no hops but of british growth could be imported into ireland. by the 6 geo. i., it was enacted that the duty on hops exported from england should not be drawn back in favour of irish consumers.[57] irish cotton manufactures imported to england were subject to an import duty of twenty-five per cent., while a statute of geo. i. enacted penalties on the wearing of such manufactures in great britain unless they were made there. the raw material for silk came to ireland through england. the original import duty in england was 12d. in the pound, of which 3d. in the pound was retained there.[58] irish beer and malt, too, were excluded from england, whereas english beer and malt were imported into ireland at a nominal duty. "hats, gunpowder, coals, bar-iron, iron-ware, and several other matters, some of which ireland had not to export, and others of which she had very little, were at different times the objects of english restrictions, whenever it was fancied that english interests were at all threatened by them."[59] it was this legislation that caused edmund burke to ask, "is ireland united to the crown of great britain for no other purpose than that we should counteract the bounty of providence in her favour, and in proportion as that bounty has been liberal that we are to regard it as an evil which is to be met with in every sort of corrective?"[60] "england," says mr. froude, "governed ireland for what she deemed her own interest, making her calculation on the gross balance of her trade ledgers, and leaving her moral obligations to accumulate, as if right and wrong had been blotted out of the statute book of the universe."[61] "one by one of each of our nascent industries," observes lord dufferin, "was either strangled in its birth, or handed over gagged and bound to the jealous custody of the rival interest of england, until at last every fountain of wealth was hermetically sealed, and even the traditions of commercial enterprise have perished through desuetude." this sketch of english legislation for irish trade would leave the impression that the parliaments of great britain were as lavish in their efforts to suppress industrial enterprise in that country as any british trader could reasonably desire. it will surprise us to find that this atrocious code was not regarded as sufficiently thorough. "in the year 1698," says hely hutchinson, "two petitions were preferred from folkestone and aldborough, stating a singular grievance that they suffered from ireland 'by the irish catching herrings at _waterford and wexford_, and sending them to the streights, and thereby _forestalling_ and ruining petitioners' markets;' but these petitioners had the _hard lot_ of having motions in their favour rejected."[62] footnotes: [15] ireland, however, has natural advantages which must not be forgotten in any estimate of her economical position, and which, although they do not compensate her for the want of coal, would under proper application do much to promote her prosperity. thus mr. o'connell, towards the conclusion of his speech in his own defence, in the state trials of 1844, says: "the country is intersected with noble estuaries. ships of 500 tons' burthen ride into the heart of the country, safe from every wind that blows. no country possesses such advantages for commerce; the machinery of the world might be turned by the water-power of ireland. take the map and dissect it, and you will find that a good harbour is not more remote from any spot in ireland than thirty miles." (r. _v._ o'connell, p. 649.) mr. chaplin, in the speech to which i have referred, remarks: "no doubt ireland does possess exceptional advantages in water-power which might be turned to great advantage." (hansard, 261, third series, p. 836.) ireland is not, however, absolutely devoid of coal. "though," says mr. c. dawson, "we make no boast of our mineral treasures, they are, according to competent authority, well worthy of development. according to professor hull, the leinster coal-basin contains 118 million tons, only outputting 83,000 tons per annum. in the north, especially in tyrone, at coal island, there are 17,000 acres of coal-bed (30,000,000 tons), which the professor says are by far the most valuable in ireland. in the other districts in ireland there are over 70,000,000 tons. sir r. kane supports the suggestion that borings should be made by the government in this district to ascertain if the mineral wealth existed to the extent computed by professor hull, and he adds that when the panic arose in england about the duration of its coal supply, coal was looked for then outside the limits of the recognised coal-fields, and following them down into the chalk in kent and other places, of which ireland was one." ("the influence of an irish parliament on irish industries," lecture by mr. charles dawson, _freeman's journal_, jan. 5, 1886.) [16] "burke on irish affairs," by m. arnold, p. 101. [17] "commercial restraints," p. 156. mr. secretary orde, in introducing in the irish house of commons, in 1785, the commercial propositions, said: "great britain was aware of the preferable commercial situation of ireland." ("irish debates," iv., p. 120.) [18] "life and speeches of lord plunket," by the right hon. d. plunket, vol. i., pp. 173, 174. [19] "english in ireland," vol. i., p. 178. [20] "parliamentary debates," xv., p. 175. [21] "commercial restraints," p. 164. [22] "irish debates," iii., p. 123. henry, archbishop of dublin, is mentioned in magna charta as one of the barons whose "advice" led to the signing of that instrument by john. this prelate, henry de loundres, or "the londoner," erected st. patrick's church, dublin, into a cathedral, and created the offices of precentor, chancellor, treasurer, and dean--the last a post destined to be rendered famous five centuries later by the incumbency of swift. strange that at far-distant periods of time st. patrick's cathedral should be associated with the names of two illustrious assertors of liberty! [23] these enactments are mentioned in the "commercial restraints," pp. 164-169. [24] "commercial restraints," p. 169. [25] 12 car. ii., c. 18. [26] 13 & 14 car. ii., c. 11, s. 6. [27] "english in ireland," i., p. 179. [28] "parliamentary debates," xv., pp. 175, 176. edmund burke, speaking in the british house of commons, on may 6th, 1778, thus commented on this transaction: "in the 12 car. ii. the navigation acts passed, extending to ireland, as well as england. a kind of left-handed policy, however, had deprived her of the freedom she enjoyed under that act, and she had ever since remained under the most cruel, oppressive, and unnatural restrictions." ("parliamentary debates," viii., p. 265.) [29] except victuals, servants, horses, and salt, for the fisheries of new england and newfoundland. [30] 15 car. ii., c. 7, s. 13. [31] 18 car. ii., c. 2. [32] 32 car. ii., c. 2. irish cattle were readmitted into england by the 32 geo. ii., c. 11. this was but a temporary enactment, but it was renewed without difficulty. hely hutchinson says it was acknowledged that the importation did not lower english rents. ("commercial restraints," p. 86.) [33] 22 & 23 car. ii., c. 26. [34] "parliamentary debates," xv., p. 176. [35] "english in ireland," i. 180. [36] carte's "ormonde," ii. 357. [37] carte's "ormonde," ii. 329. [38] "life and death of the irish parliament," p. 69. [39] "irish commons' journals," ii. 577. [40] "commercial restraints," p. 20. [41] "irish wool and woollens," by s. a., p. 67. [42] "report from the select committee on the linen trade of ireland, 6th june, 1825." [43] "life of thomas wentworth, earl of strafford," by elizabeth cooper, i., pp. 185, 186. miss cooper comments severely "on the stolid unconsciousness of wrongdoing by such a design, the undreamed-of suspicion that such a proposal could be received with any other feeling than that of approbation." it is but just to the memory of strafford to state that he endeavoured to develop the linen manufacture in ireland. he sent to holland for flax seed, and invited flemish and french artisans to settle in ireland. "in order to stimulate the new industry, the earl himself embarked in it, and expended not less than â£30,000 of his private fortune in the enterprise. it was afterwards made one of the grounds of his impeachment that he had obstructed the industry of the country by introducing new and unknown processes into the manufacture of flax. it was, nevertheless, greatly to the credit of the earl that he should have endeavoured to improve the industry of ireland by introducing the superior processes employed by foreign artisans, and had he not attempted to turn the improved flax manufacture to his own advantage by erecting it into a personal monopoly, he might have been entitled to regard as a genuine benefactor of ireland." (smiles's "huguenots," p. 126.) dr. smiles, in this passage, speaks of the linen manufacture as a "new industry." the "report from the select committee on the linen trade of ireland" states that that trade was "first planted in ireland by lord strafford" (appendix, p. 6), and miss cooper gives him credit "for the establishment of the linen manufacture in ireland." ("life of lord strafford," i., p. 346.) these statements are not, i think, historically correct. mr. lecky shows that, although lord strafford stimulated the linen trade, he did not found it. "the linen manufacture may, indeed, be dimly traced far back into irish history. it is noticed in an english poem in the early part of the fifteenth century. a century later guicciardini, in his 'description of the low countries,' mentions coarse linen as among the products imported from ireland to antwerp. strafford had done much to encourage it, and after the calamities of the cromwellian period the duke of ormonde had laboured with some success to revive it." ("england in the eighteenth century," ii., pp. 211, 212.) see also, for some very valuable remarks on this subject, "irish wool and woollens," pp. 63, 64. [44] "irish wool and woollens," p. 70. see also newenham on "the population of ireland," pp. 40, 41. [45] 12 car. ii., c. 4. a duty equal to a prohibition was laid on those goods. [46] "english commons' journals," xii., p. 338. [47] "english commons' journals," xii. 339. [48] "irish commons' journals," ii., p. 241. [49] "irish commons' journals," ii., p. 243. [50] irish statutes, 10 will. iii., c. 3. [51] subsequent acts completed this annihilation. "the next act," says lord north, after enumerating the acts mentioned above, "was an act of the 5th geo. i., the next the 5th and 12th of the late king (geo. ii.), which last went so far as to prohibit the export of a kind of woollen manufacture called waddings, and one or two other articles excepted out of the 10th and 11th of king william; but these three last acts swept everything before them." ("parliamentary debates," xv. 176, 177.) [52] "parliamentary debates," vol. xiii., 330. [53] "parliamentary debates," vol. xv., 181. [54] "irish affairs," pp. 112, 113. [55] "english in ireland," vol. ii., p. 177. mr. lecky thus succinctly states the particulars attending the breach of the linen compact:--"the main industry of ireland had been deliberately destroyed because it had so prospered that english manufacturers had begun to regard it as a competitor with their own. it is true, indeed, that a promise was made that the linen and hempen manufacture should be encouraged as a compensation, but even if it had been a just principle that a nation should be restricted by force of law to one or two forms of industry, there was no proportion between that which was destroyed and that which was to be favoured, and no real reciprocity established between the two countries." mr. lecky having stated the antiquity of the linen manufacture and its vicissitudes in ireland, and having mentioned that "in 1700 the value of the export of irish linen amounted to little more than â£14,000," thus proceeds:--"the english utterly suppressed the existing woollen manufacture in ireland in order to reserve that industry entirely to themselves, but the english and scotch continued, as usual, their manufacture of linen. the irish trade was ruined in 1699, but no legislative encouragement was given to the irish linen manufacture till 1705, when, at the urgent petition of the irish parliament, the irish were allowed to export their white and brown linens, but these only to the british colonies, and they were not permitted to bring any colonial goods in return. the irish linen manufacture was undoubtedly encouraged by bounties, but not until 1743, when the country had sunk into a condition of appalling wretchedness. in spite of the compact of 1698, the hempen manufacture was so discouraged that it positively ceased. disabling duties were imposed on irish sail-cloth imported into england. irish checked, striped, and dyed linens were absolutely excluded from the colonies. they were virtually excluded from england by the imposition of a duty of 30 per cent., and ireland was not allowed to participate in the bounties granted for the exportation of these descriptions of linen from great britain to foreign countries."--"eighteenth century," vol. ii., pp. 211-212. see also, "an argument for ireland," by j. o'connell, m.p., pp. 147-154. [56] "parliamentary debates," vol. xv., 179, 180. [57] "commercial restraints," pp. 229, 230. [58] see "an argument for ireland," p. 161. [59] "an argument for ireland," by j. o'connell, m.p., p. 161. [60] burke on "irish affairs," p. 101. [61] "english in ireland," vol. i., p. 657. [62] "commercial restraints," pp. 125, 126. see "english commons' journals," 22, p. 178. in this summary of the laws enacted by the english parliament in restraint of irish trade, i have dealt merely with legislation of a permanent character. "when," says hely hutchinson, in 1779, "the commercial restraints of ireland are the subject, a source of occasional and ruinous restrictions ought not to be passed over. since the year 1740 there have been twenty-four embargoes in ireland, one of which lasted three years." "commercial restraints," pp. 231, 232. the system of embargoes called forth the indignation of arthur young, the celebrated english traveller. the prohibition of woollens, etc., was, he says, at least advantageous to similar manufactures in england, but "in respect to embargoes, even this shallow pretence is wanting; a whole kingdom is sacrificed and plundered, not to enrich england, but three or four london contractors." see also lecky's "eighteenth century," iv., p. 442. chapter iii. english opposition to efforts of the irish parliament in favour of irish trade. mr. fox, speaking in the british house of commons on the 17th of may, 1782, as a responsible minister of the crown, thus stated the nature and effect of the legislation of the english parliament with reference to irish trade: "the power of external legislation had been employed against ireland as an instrument of oppression, to establish an impolitic monopoly in trade, to enrich one country at the expense of the other."[63] the english government was, previously to the revolution of 1782, able to dominate the legislation of the irish parliament under the provisions of poynings' law. that power was used to induce the irish parliament to pass laws prejudicial to the liberties or the commerce of their country, and to prevent the enactment of laws for the protection of irish liberty, and the development of irish industrial energies. thus, when the english houses of parliament addressed william iii. on the subject of the irish woollen trade, both lords and commons suggested that the king should use his influence to induce the irish parliament to restrain that manufacture, without rendering english legislation for the purpose necessary. a few days after these addresses were presented, the king wrote to lord galway, one of the lords justices of ireland, as follows:-"the chief thing that must be prevented is that the irish parliament take no notice of this here, and that you make effectual laws for the linen manufacture, and discourage as far as possible the woollen. it never was of such importance to have a good session of parliament."[64] ireland was thus, in the words of mr. froude, "invited to apply the knife to her own throat."[65] "the irish houses, in dread of abolition if they refused, relying on the promise of encouragement to their linen trade, and otherwise unable to help themselves, acquiesced."[66] the enactment which they passed was temporary. hely hutchinson says that this law has every appearance of being framed on the part of the administration. the servile body who assented to it soon had reason to know that to tolerate slavery is to embrace it. the law did not satisfy the english parliament, who passed the perpetual enactment to which reference has been previously made.[67] this is, however, one of the few instances in which the irish parliament was prevailed on to pass laws in restraint of their own trade. even in this case the destruction of the woollen industry was not considered complete until english legislation gave it a final blow. the direct attacks on irish trade were almost exclusively the work of the english parliament; while the english privy council strangled at its birth every beneficial enactment of the irish parliament. the following instances will explain and illustrate the difficulties with which the irish parliament had to contend in every effort to promote the material prosperity of their country:-"with," says mr. froude, "their shipping destroyed by the navigation act, their woollen manufactures taken from them, their trade in all its branches crippled and confined, the single resource left to those of the irish who still nourished dreams of improving their unfortunate country was agriculture. the soil was at least their own, which needed only to be drained, cleared of weeds, and manured to produce grass crops and corn crops as rich as the best in england. here was employment for a population three times more numerous than as yet existed. here was a prospect, if not of commercial wealth, yet of substantial comfort and material abundance."[68] after some further observations, mr. froude thus proceeds:--"the tenants were forbidden in their leases to break or plough the soil. the people no longer employed were driven away into holes and corners, and eked out a wretched subsistence by potato gardens or by keeping starving cattle of their own on the neglected bogs. their numbers increased, for they married early, and they were no longer liable, as in the old times, to be killed off like dogs in forays. they grew up in compulsory idleness, encouraged once more in their inherited dislike of labour,[69] and inured to wretchedness and hunger; and on every failure of the potato crop, hundreds of thousands were starving. of corn very little was grown anywhere in ireland. it was imported from england, holland, italy, and france, but in quantities unequal to any sudden demand. the disgrace of allowing a nation of human beings to subsist upon such conditions forced itself at last on the conscience of the irish parliament, and though composed of landowners who were tempted as much as others to let their farms on the terms most profitable to them, the house of commons in 1716 resolved unanimously to make an effort for a general change of system, and to reclaim both people and country by bringing back and stimulating agriculture. they passed a vote that covenants which prohibited the breaking soil with the plough were impolitic, and should have no binding force. they passed heads of a bill, which they recommended with the utmost earnestness to the consideration of the english council, enjoining that for every hundred acres which any tenant held he should break up and cultivate five, and, as a further encouragement, that a trifling bounty should be granted by the government on corn grown for exportation. "and what did england answer? england which was so wisely anxious for the prosperity of the protestant interest in ireland: england which was struggling so pathetically to make the irish peers and gentlemen understand the things that belonged to their peace? the bounty system might or might not have been well calculated to produce the effect which ireland desired. it was the system which england herself practised with every industry which she wished to encourage, and it was not on economic grounds that the privy council rejected a bill which they ought rather to have thrust of their own accord on irish acceptance. the real motive was probably the same which had led to the suppression of the manufactures--the detestable opinion that to govern ireland conveniently ireland must be kept weak. although the corn consumed in ireland had been for many years imported, the english farmers were haunted with a terror of being undersold in their own and foreign markets by a country where labour was cheap. a motive so iniquitous could not be confessed, but the objections which the council were not ashamed to allege were scarcely less disgraceful to them. the english manufacturers having secured, as they supposed, the monopoly of irish wool on their own terms, conceived that the whole soil of ireland ought to be devoted to growing it. the merchants of tiverton and bideford had recently memorialised the crown on the diminution of the number of fleeces which reached them from the irish ports. they attributed the falling off to the contraband trade between ireland and france, which shortened their supplies, enhanced the price, and gave the french weavers an advantage over them. their conjecture, as will be hereafter shown, was perfectly just. the contraband trade, as had been foreseen when the restrictions were imposed, had become enormous. but the commissioners of the irish revenue were unwilling to confess to carelessness. they pretended that the irish farmers, forgetting their obligations to england, and thinking wickedly only of their own interests, were diminishing their stock of sheep, breaking up the soil, and growing wheat and barley. the allegation, unhappily, was utterly untrue. but the mere rumour of a rise of industry in ireland created a panic in the commercial circles of england. although the change existed as yet only in desire, and the sheep-farming, with its attending miseries, was increasing rather than diminishing, stanhope, walpole, sutherland, and the other advisers of the english crown, met the overtures of the irish parliament in a spirit of settled hostility, and, with an infatuation which now appears insanity, determined to keep closed the one remaining avenue by which ireland could have recovered a gleam of prosperity. "the heads of the bill were carried in ireland without a serious suspicion that it would be received unfavourably. a few scornful members dared to say that england would consent to nothing which would really benefit ireland, but they were indignantly silenced by the friends of the government. it was sent over by the duke of grafton, with the fullest expectation that it would be returned. he learnt first with great surprise that 'the tillage bill was meeting with difficulties.' 'it was a measure,' he said, 'which the gentlemen of the country had very much at heart, as the only way left them to improve their estates while they were under such hard restrictions in point of trade.' 'it would be unkind,' he urged, in a second and more pressing letter, 'to refuse ireland anything not unreasonable in itself. he conceived the corn bill was not of that nature, and therefore earnestly requested his majesty would be pleased to indulge them in it.' "stanhope forwarded in answer a report of the english commissioners of customs, which had the merit of partial candour. 'corn,' they said, 'is supposed to be at so low a rate in ireland in comparison with england, that an encouragement to the exportation of it would prejudice the english trade.' "the lords justices returned the conclusive rejoinder that for some years past ireland had imported large quantities of corn from england, which would have been impossible had her own corn been cheaper. 'they could not help representing,' they said, 'the concern they were under to find that verified which those all along foretold who obstructed the king's affairs, and which his friends had constantly denied, that all the marks they had given of duty and affection would not procure one bill for the benefit of the nation.' "the fact of the importation of corn from england could not be evaded; but the commercial leaders were possessed with a terror of irish rivalry which could not be exorcised. the bill was at last transmitted, but a clause had been slipped in empowering the council to suspend the premiums at their pleasure; and the house of commons in disgust refused to take back a measure which had been mutilated into a mockery."[70] to take another instance, illustrative of the same system, which was in full operation sixty years later. the heads of a bill were introduced in 1771 to prevent corn from being wasted in making whisky, and to put some restraint on the vice of drunkenness, which was increasing. this bill was warmly recommended to the english privy council by townshend, the lord-lieutenant of the day, who said, "the whisky shops were ruining the peasantry and the workmen. there was an earnest and general desire to limit them. it will be a loss to the revenue, but it is a very popular bill, and will give general content and satisfaction throughout the kingdom."[71] "the whisky bill," says mr. froude, "was rejected because the treasury could not spare a few thousand pounds which were levied upon drunkenness."[72] it must also be borne in mind that although the english parliament could, and, in fact, did, place prohibitory duties on irish goods imported into england, it was quite impossible for the irish parliament to exercise the same power. bills of such a nature would, of course, never obtain the sanction of the english privy council, to whom they must have been submitted. the difference between the duties on the same goods when imported from england into ireland, and from ireland into england, were in some cases striking. "in ireland," says mr. parsons, speaking in the irish parliament in 1784, "no more than 6d. a yard was imposed on the importation of english cloths, while ours in england were charged with a duty of â£2 0s. 6d."[73] mr. pitt, speaking as prime minister in the british house of commons in february, 1785, stated that on most of the manufactures of ireland prohibitory duties were laid by great britain. "they (the irish) had not," he said, "admitted our commodities totally free from duties; they bore, upon an average, about ten per cent."[74] the helplessness of the irish parliament during this period is demonstrated by hely hutchinson. he states that in 1721, during a period of great distress, the speech from the throne, and the addresses to the king and the lord-lieutenant declare in the strongest terms the great decay of trade, and the very low and impoverished state to which the country was reduced. "but," he says, "it is a melancholy proof of the desponding state of this kingdom, that no law whatever was then proposed for encouraging trade or manufactures, or, to follow the words of the address, for reviving trade or making us a flourishing people, unless that for amending laws as to butter and tallow casks deserves to be so called. and why? because it was well understood by both houses of parliament that they had no power to remove those restraints which prohibited trade and discouraged manufactures, and that any application for that purpose would at that time have only offended the people on one side of the channel, without bringing any relief to those on the other."[75] the irish parliament did, however, what they could. thus, "in the sessions of 1703, 1705, and 1707, the house of commons resolved unanimously that it would greatly conduce to the relief of the poor and the good of the kingdom, that the inhabitants thereof should use none other but the manufactures of this kingdom in their apparel, and the furniture of their houses; and in the last of those sessions, the members engaged their honours to each other that they would conform to the said resolution."[76] many of their suggestions for the encouragement of home produce are of extraordinary ingenuity. in 1727, the privy council allowed a bill to become law, entitled "an act to encourage the home consumption of wool by burying in wool only," providing that no person should be buried "in any stuff or thing other than what is made of sheep or lambs' wool only."[77] the custom, now grotesque and unmeaning, but still in vogue in ireland, of wearing scarfs at funerals, was recommended in the interest of the linen manufacture, and was first introduced in 1729 at the funeral of mr. conolly, speaker of the irish house of commons.[78] so, too, spinning schools were established in every county, and a board of trustees was appointed to watch over the interests of the linen manufacture; "but the utter want of capital, the neglect of the grand juries, the ignorance, poverty, and degradation of the inhabitants, made the attempt to create a new manufacture hopeless."[79] these efforts of the irish parliament, though of little practical effect, demonstrate their keen appreciation of the sufferings around them and their sympathy with the wants and wishes of their people, who were crushed by a system which mr. pitt has characterised as one "of cruel and abominable restraint."[80] speaking in the english house of commons in 1785, that statesman bade members "recollect that from the revolution to a period within the memory of every man who heard him, indeed until these very few years, the system had been that of debarring ireland from the enjoyment and use of her own resources, to make that kingdom completely subservient to the interests and opulence of this country, without suffering her to share in the bounties of nature, in the industries of her citizens, or making them contribute to the general interests and strength of the empire."[81] "no country," says mr. lecky, "ever exercised a more complete control over the destinies of another than did england over those of ireland, for three-quarters of a century after the revolution. no serious resistance of any kind was attempted. the nation was as passive as clay in the hands of the potter, and it is a circumstance of peculiar aggravation that a large part of the legislation i have recounted was a distinct violation of a solemn treaty.[82] the commercial legislation which ruined irish industry, the confiscation of irish land which demoralised and impoverished the nation, were all directly due to the english government, and the english parliament."[83] "if," says mr. froude, "the high persons at the head of the great british empire had deliberately considered by what means they could condemn ireland to remain the scandal of their rule, they could have chosen no measures better suited to their end than those which they pursued unrelentingly through three-quarters of a century."[84] footnotes: [63] "parliamentary register," p. 7. [64] rapin, xvii., p. 417. the date of this letter is 16th of july, 1698. the matter was so urgent that william iii. wrote two letters. see "english in ireland," i. 297. [65] "english in ireland," vol. i., p. 297. [66] _ibid._, p. 297. [67] 10 & 11 will. iii., c. 10. [68] "english in ireland," vol. i., p. 439. [69] the charge of indolence which mr. froude has here preferred against the irish peasantry has frequently been refuted. the accusation is an old one. speaking in the irish house of commons in 1784, the right hon. luke gardiner thus repelled it:--"those who render our people idle are the first to ridicule them for that idleness, and to ridicule them without a cause. national characteristics are always unjust, as there never was a country that has not produced both good and bad." "they are general assertions, as false as they are illiberal. irishmen have shown spirit and genius in whatever they have undertaken." "i call upon gentlemen to specify one instance where the people were indolent when the laws of their country protected them in their endeavours." ("irish debates," iii., p. 127.) "it is a cant in england," says mr. o'connell, "that they (the irish) are an idle people, but how can that be said when they are to be found seeking employment through every part of the world? they are to be found making roads in scotland and digging canals in the poisonous marshes of new orleans." ("discussion in dublin corporation on repeal of the union," in 1843, p. 58) the _times_ of the 26th of june, 1845, in an article to which i will refer hereafter, says "the irishman is disposed to work." [70] "english in ireland," vol. i., 441-446. the subsequent history of this bill as related by mr. froude is interesting. it became law in 1727, but was practically ineffective. see lecky's "eighteenth century," ii., 248. [71] "english in ireland," vol. ii., 113, 114. [72] "english in ireland," vol. ii., 114. [73] "irish debates," vol. iii., 132. [74] "parliamentary register," 17, 255. [75] "commercial restraints," pp. 40-41. speaking of the great distress in the years 1740 and 1741, hely hutchinson again deplores the inability of the irish parliament to alleviate the misery of the poor. "they (the commons) could not have been insensible of the miseries of their fellow-creatures, many thousands of whom were lost in those years, some from absolute want and many from disorders occasioned by bad provisions. why was no attempt made for their relief? because the commons knew that the evil was out of their reach, and the poor were not employed because they were discouraged by restrictive laws from working up the materials of their own country, and that agriculture could not be encouraged when the lower classes of the people were not enabled by their industry to purchase the produce of the farmer's labour."--("commercial restraints," pp. 47-48.) [76] "commercial restraints," pp. 210, 211. [77] 7 george ii. (irish) c. 13. this irish statute was framed on the model of an act passed by the english parliament in 1678, providing that all dead bodies should be wrapped in woollen shrouds. dean swift warmly approved of this measure which, however, he seemed to think would never pass the privy councils. "what," he says, "if we should agree to make burying in woollen a fashion, as our neighbours have made it a law?" swift's works (scott's ed.), vi., p. 274. [78] finlayson's "monumental inscriptions in christ church cathedral, dublin," p. 27. [79] lecky's "eighteenth century," vol. ii., 215. [80] "parliamentary register," 17, 249. mr. lecky pays a high compliment to the exertions of the irish parliament to protect the material interests of their country. "during the greater part of the century (18th century) it had little power except that of protesting against laws crushing irish commerce, but what little it could do it appears to have done."--"leaders of public opinion in ireland," p. 187. [81] "parliamentary register," 17, 249. [82] mr. lecky refers doubtless to the treaty of limerick. [83] "eighteenth century," vol. ii., 256. [84] "english in ireland," vol. ii., 213. chapter iv. the immediate effects of english legislation on irish trade. the immediate effects produced upon ireland by the commercial policy of great britain were such as might reasonably be anticipated from the brief and necessarily imperfect account i have given of that system. the best and most energetic members of the industrial community sought refuge in exile from a land where honest labour was robbed by law of its reward. the weaker ones, who were compelled to remain, this terrible system defrauded, impoverished, and degraded. it afflicted every irishman, whether at home or abroad, with a sense of intolerable wrong, and created that passionate resentment towards england, which has been transmitted to succeeding generations. "one of the most obvious consequences," says mr. lecky, "was that for the space of about a century ireland underwent a steady process of depletion, most men of energy, ambition, talent, or character being driven from her shores."[85] "if the ambition of an irishman lay in the paths of manufacture and commerce he was almost compelled to emigrate, for industrial and commercial enterprise had been deliberately crushed."[86] this legislation, it must be remembered, fell most severely on the protestant population of ireland, although, of course, it grievously affected every class, and, indeed, every member of the community. twenty thousand puritans left ulster on the destruction of the woollen trade.[87] "until the spell of tyranny was broken, in 1782, annual ship-loads of families poured themselves out from belfast and londonderry. the resentment they carried with them continued to burn in their new homes; and, in the war of independence, england had no fiercer enemies than the great-grandsons of the presbyterians who had held ulster against tyrconnel."[88] at the beginning of the eighteenth century, mr. lecky thinks the population of ireland slightly exceeded two millions,[89] and he adopts the calculation of a contemporary writer that the woollen manufacture at the time of its suppression afforded employment to 12,000 protestant families in the metropolis, and 30,000 dispersed over the rest of the kingdom.[90] we can, therefore, see at a glance how large a fraction of the entire population of the country were directly deprived of bread by that measure. swift, whose deanery lay in the liberties of dublin, the principal seat of the woollen manufacture, and who witnessed the results of its suppression, thus writes:--"three parts in four of the inhabitants of that district of the town where i dwell were english manufacturers, whom either misfortunes in trade, little petty debts contracted through illness, or the presence of a numerous family, had driven into our cheap country. these were employed in working up our worse wool, while the finest was sent into england. several of these had taken the children of the native irish apprentices to them who, being humbled by the forfeiture of upwards of three millions by the revolution, were obliged to stoop to a mechanic industry. upon the passing of this bill, we were obliged to dismiss thousands of these people from our service. those who had settled their affairs returned home, and overstocked england with workmen; those whose debts were unsatisfied, went to france, spain, and the netherlands, where they met with good encouragement, whereby the natives having got a firm footing in the trade, being acute fellows, so became as good workmen as any we have, and supply the foreign manufacturers with a constant supply of artisans."[91] "upon the checking the export of our woollen manufactures," writes mr. arthur dobbs, in 1729, "and by laying on heavy duties on its being exported to england in 1699 and 1700, equivalent to a prohibition, most of those who were embarked in it were laid under a necessity of removing elsewhere; and, being piqued at the difficulties they were laid under, many of the protestants removed into germany, and settled in the protestant states there, who received them with open arms. several papists at the same time removed into the northern parts of spain, where they laid the foundations of a manufacture highly prejudicial to england. many also of the protestants who were embarked with papists in the woollen manufacture, removed into france, and settled at roan and other parts. notwithstanding louis xiv. had repealed the edict of nantes, and forced abroad the french protestants into different parts of europe, yet these were kindly received by him, had great encouragement given to them, and were protected in their religion. from these beginnings they have in many branches so much improved the woollen manufactures of france, as not only to supply themselves, but even to vie with the english in the foreign markets; and by their correspondence they have laid the foundation for the running of wool thither both from england and ireland, highly to the prejudice of britain, which pernicious practice is still carried on in spite of all the care and precaution made use of to discountenance and prevent it. thus a check is put upon the sale of our woollen manufactures abroad, which would have given employment to all the industrious poor both of britain and ireland, had not our manufacturers been forced away into france, spain, and germany, where they are now so improved as in great measure to supply themselves with many sorts they formerly had from england."[92] in 1773 the irish house of commons "had to hear from the linen board that 'many thousands of the best manufacturers and weavers, with their families, had gone to seek their bread in america, and thousands were preparing to follow.' again a committee was appointed to inquire. this time the blame was laid on england, which had broken the linen compact, given bounties to lancashire mill-owners, which belfast was not allowed to share, and in 'jealousy of irish manufactures,' had laid duties on irish sail-cloth contrary to express stipulation. the accusation, as the reader knows, was true."[93] "if," wrote mr. newenham, in 1805, "we said that, during fifty years of the last century, the average annual emigration to america and the west indies amounted to 4,000, and consequently that in that space of time 200,000 had emigrated to the british plantations, i am disposed to think we should rather fall short of than exceed the truth."[94] it would be easy to adduce further evidence of the extent of this emigration caused by the destruction of irish manufactures and its results. the speech, however, of the right hon. luke gardiner, delivered in the irish house of commons on the 2nd of april, 1784, is noteworthy. having described the destruction of the woollen trade, which was initiated by the irish act laying it under temporary prohibitions, passed by "a corrupt majority in this house;" the consequent emigration of the manufacturers, their favourable reception in foreign countries, and especially in france, who, availing herself of their industry, was enabled, not only "to rival great britain, but to undersell her in every market in europe," the speaker proceeded thus-"england, from unhappy experience, is convinced of the pernicious effects of her impolicy. the emigration of the irish manufacturers in the reign of king william is not the only instance that has taught that nation the ruinous effects of restrictive laws. our own remembrance has furnished a sad instance of the truth of this assertion--furnished it in the american war. america was lost by irish emigrants. these emigrations are fresh in the recollection of every gentleman in this house; and when the unhappy differences took place, i am assured, from the best authority, that the major part of the american army was composed of irish, and that the irish language was as commonly spoken in the american ranks as english. i am also informed it was their valour determined the conquest; so that england not only lost a principal protection of her woollen trade, but also had america detached from her by force of irish emigrants."[95] the weaker and more defenceless members of the irish industrial community were forced by circumstances to remain at home, and were accordingly exposed to the sufferings entailed by this policy of unenlightened selfishness and exasperation. the following extracts, taken from a mass of contemporaneous documents, will give some idea of their condition. "from the time," says hely hutchinson, "of this prohibition [of the woollen manufactures] no parliament was held in ireland till the year 1703. five years were suffered to elapse before any opportunity was given to apply a remedy to the many evils which such a prohibition must necessarily have occasioned. the linen trade was then not thoroughly established in ireland; the woollen manufacture was the staple trade, and wool the principal material of that kingdom. the consequences of the prohibition appear in the session of 1713. the commons lay before queen anne a most affecting representation containing, to use their own words, 'a true state of our deplorable condition,' protesting that no groundless discontent was the motive for that application, but a deep sense of the evil state of their country, and of the further mischiefs they have reason to fear will fall upon it if not timely prevented. they set forth the vast decay and loss of its trade, its being almost exhausted of coin that they are hindered from earning their livelihoods, and from maintaining their own manufactures; that their poor have thereby become very numerous; that great numbers of protestant families have been constrained to remove out of the kingdom, as well into scotland as into the dominions of foreign princes and states; and that their foreign trade and its returns are under such restrictions and discouragements as to be then become in a manner impracticable, although that kingdom had by its blood and treasure contributed to secure the plantation trade to the people of england. "in a further address to the queen, laid before the duke of ormonde, then lord-lieutenant, by the house, with its speaker, they mention the distressed condition of that kingdom, and more especially of the industrious protestants, by the almost total loss of trade and decay of their manufactures, and, to preserve the country from utter ruin, apply for liberty to export their linen manufactures to the plantations. "in a subsequent part of this session the commons resolve that, by reason of the great decay of trade and discouragement of the manufactures of this kingdom, many poor tradesmen were reduced to extreme want and beggary. this resolution was agreed to _nem. con._, and the speaker, mr. broderick, then his majesty's solicitor-general, and afterwards lord chancellor, in his speech at the end of the session, informs the lord-lieutenant that 'the representation of the commons was, as to the matters contained in it, the unanimous voice and consent of a very full house, and that the soft and gentle tones used by the commons in laying the distressed condition of the kingdom before his majesty, showed that their complaints proceeded not from querulousness, but from a necessity of seeking redress.'"[96] in his proposal for the use of irish manufactures, which was published in 1720, dean swift says: "the scripture tells us that oppression makes a wise man mad, therefore, consequently speaking, the reason why some men are not mad is because they are not wise. however, it were to be wished that oppression would in time teach a little wisdom to fools."[97] "whoever travels in this country and observes the face of nature, and the faces and habits and dwellings of the natives, will hardly think himself in a land where law, religion, or common humanity is professed."[98] nicholson, an englishman, translated from the bishopric of carlisle to that of derry, in a letter to the archbishop of canterbury, written in the same year, gives a similar account of the prevailing destitution: "never did i behold in picardy, westphalia, and scotland, such dismal marks of hunger and want as appeared in the countenances of most of the poor creatures i met with on the road." he states that one of his carriage horses having been killed by accident, it was surrounded by "fifty or sixty famished cottagers, struggling desperately to obtain a morsel of flesh for themselves and their children."[99] swift, writing in 1727, says: "the conveniency of ports and harbours, which nature has bestowed so liberally on this country, is of no more use to us than a beautiful prospect to a man shut up in a dungeon."[100] "ireland is the only kingdom i ever heard of, either in ancient or modern story, which was denied the liberty of exporting their native commodities and manufactures wherever they pleased, except to countries at war with their own prince or state; yet this privilege, by the mere superiority of power, is refused us in the most momentous parts of our commerce; besides an act of navigation, to which we never consented, pinned down upon us, rigorously executed, and a thousand other unexampled circumstances, as grievous as they are invidious to mention."[101] "if we do flourish it must be against every law of nature and reason, like the thorn of glastonbury, that blossoms in the midst of the winter."[102] "the miserable dress, diet, and dwelling of the people, the general desolation in most parts of the kingdom, the old seats of the nobility in ruins, and no new ones in their stead, the families of farmers, who pay great rents, living in filth and nastiness, upon butter-milk and potatoes, without a shoe or stocking to their feet, or a house so convenient as an english hogsty to receive them. these, indeed, may be comfortable sights to an english spectator, who comes for a short time only to learn the language, and returns back to his own country whence he finds all his wealth transmitted. "nostra miseria magna est. there is not one argument used to prove the riches of ireland which is not a logical demonstration of its poverty."[103] "ireland is the poorest of all civilised countries, with every advantage to make it one of the richest."[104] "the great scarcity of corn," says hely hutchinson, "had been so universal in this kingdom in the years 1728 and 1729 as to expose thousands of families to the utmost necessities, and even to the danger of famine, many artificers and housekeepers having been obliged to beg for bread in the streets of dublin."[105] this is probably the distress to which swift, writing in 1729, alludes: "our present calamities are not to be represented. you can have no notion of them without beholding them. numbers of miserable objects crowd our doors, begging us to take their wares at any price to prevent their families from immediate starving."[106] "in twenty years," says mr. lecky, "there were at least three or four of absolute famine."[107] the writer of a pamphlet entitled "the groans of ireland in a letter to a member of parliament," published in dublin in 1741, thus begins:-"i have been absent from this country for some years, and on my return to it last summer found it the most miserable scene of universal distress that i ever read of in history. "want and misery in every face, the rich unable, almost as they were unwilling, to relieve the poor; the roads spread with dead and dying bodies; mankind of the colour of the docks and nettles which they fed on; two or three, sometimes more, on a car going to the grave for want of bearers, to carry them, and many buried only in the fields and ditches where they perished. this universal scarcity was ensued by malignant fevers, which swept off multitudes of all sorts; whole villages were laid waste by want and sickness and death in various shapes, and scarce a house in the whole island escaped from tears and mourning. "it were to be wished, sir, that some curious enquirer had made a calculation of the numbers lost in this terrible calamity. if one for every house in the kingdom died (and that is very probable, when we consider that whole families and villages were swept off in many parts together), the loss must have been upwards of 400,000 souls. if but one for every other house (and it was certainly more), 200,000 perished--a loss too great for this ill-peopled country to bear and the more grievous as the loss was mostly of the grown-up part of the working people." the writer then proceeds to emphasise the fact to which swift had previously directed attention: that irish famines are _artificial_. "sir,--when a stranger travels through this country and beholds its wide extended and fertile plains, its great flocks of sheep and black cattle, and all its natural wealth and conveniences for tillage, manufactures, and trade, he must be astonished that such misery and want could possibly be felt by its inhabitants; but you, who know the constitution and are acquainted with its weaknesses, can easily see the reason."[108] writing in the year 1779, hely hutchinson says, "in this and the last year about twenty thousand manufacturers in this metropolis were reduced to beggary for want of employment; they were for a considerable length of time supported by alms; a part of the contribution came from england, and this assistance was much wanting, from the general distress of all ranks of people in this country. public and private credit are annihilated."[109] again, "a country will sooner recover from the miseries and devastation occasioned by war, invasion, rebellion, and massacre, than from laws restraining the commerce, discouraging the manufactures, fettering the industry, and, above all, breaking the spirits of the people."[110] he thus summarises the effects of the eighty years' restrictive legislation, between the destruction of the woollen trade in 1699 and 1779, the date at which he was writing. "can the history of any other fruitful country on the globe, enjoying peace for fourscore years, and not visited by plague or pestilence, produce so many recorded instances of the poverty and wretchedness, and of the reiterated want and misery of the lower orders of the people? there is no such example in ancient or modern story. if the ineffectual endeavours by the representatives of those poor people to give them employment or food had not left sufficient memorials of their wretchedness, if their habitations, apparel, and food were not sufficient proofs, i should appeal to the human countenance for my voucher, and rest the evidence on that hopeless despondency that hangs on the brow of unemployed industry."[111] such were the more striking effects of this pernicious legislation. its remoter consequences were likewise disastrous. crime and outrage were promoted by the suppression of national industry. "in the year 1762," says hely hutchinson, "a new evil made its appearance, which all the exertions of the government and of the legislature have not since been able to eradicate. i mean the risings of the white boys. they appear in those parts of the kingdom where manufactures are not established, and are a proof of the poverty and want of employment of the lower classes of our people."[112] then again, this system divorced law from public opinion. sir henry maine has well observed, that social necessities and social opinion are always more or less in advance of law, and that the greater or less happiness of a nation depends on the degree of promptitude with which the gulf between them is narrowed.[113] in ireland that gulf was deliberately widened; and the people learned, with good reason, to regard the law, not as a protector, but as a plunderer of their rightful gains, and as an agency to make havoc of their industry. "when england," says mr. froude, "in defence of her monopolies, thought proper to lay restrictions on the irish woollen trade, it was foretold that the inevitable result would be an enormous development of smuggling."[114] "the entire nation, high and low, was enlisted in an organised confederacy against the law. distinctions of creed were obliterated, and resistance to law became a bond of union between catholic and protestant, irish celt and english colonist."[115] hely hutchinson, in a paper laid before lord buckinghamshire, in july, 1779, places this matter in a clear light. "you have forced us into an illicit commerce, and our very existence depends now upon it. ireland has paid great britain for eleven years past double the sum that she collects from the whole world in all the trade which great britain allows her, a fact not to be paralleled in the history of the world. whence did the money come? but one answer is possible. it came from the contraband trade, and surely it is madness to suffer an important part of the empire to continue in that condition. you defeat your own objects."[116] again, this system embittered the relations between landlord and tenant in ireland by raising unduly the creation of farms, the cultivation of the soil being the only industrial resource left to the people. "rents," says mr. lecky, "were regulated by competition; but it was competition between a half starving population, who had no other resource except the soil, and were prepared to promise anything rather than be deprived of it.[117] the mass of the people," the same writer continues, "became cottiers, because it was impossible to gain a livelihood as agricultural labourers or in mechanical pursuits. this impossibility was due to the extreme paucity of circulating capital, and may be chiefly traced to the destruction of irish manufactures and to the absence of a considerable class of resident landlords, who would naturally give employment to the poor."[118] such were some of the more immediate effects upon ireland of the commercial arrangements of great britain. that system was thus described in the irish house of commons in october, 1779, by hussey burgh, who then held the office of prime serjeant, and afterwards became lord chief baron of the court of exchequer. "the usurped authority of a foreign parliament has kept up the most wicked laws that a jealous, monopolising, ungrateful spirit could desire, to restrain the bounty of providence and enslave a nation whose inhabitants are recorded to be a brave, loyal, generous people; by the english code of laws, to answer the most sordid views, they have been treated with a savage cruelty; the words penalty, punishment, and ireland are synonymous; they are marked in blood on the margin of their statutes, and though time may have softened the calamities of the nation, the baneful and destructive influence of those laws have borne her down to a state of egyptian bondage. the english have sowed their laws like serpents' teeth; they have sprung up as armed men."[119] few will be disposed to disagree with mr. froude in his estimate of the effects of this policy. "by a curious combination this system worked the extremity of mischief, commercially, socially, and politically."[120] footnotes: [85] "eighteenth century," vol. ii., 257, 258. [86] "eighteenth century," vol. ii., 259. [87] "english in ireland," vol. i., 435. [88] "english in ireland," vol. i., 436. [89] "eighteenth century," vol. ii., 255. [90] "eighteenth century," vol. ii., 213. [91] swift's works (scott's ed.), vol. vii., 195. [92] "an essay upon the trade of ireland"--"tracts and treatises" (ireland), 2, p. 335-6. [93] "english in ireland," vol. ii., 137. [94] newenham on "population," p. 60. this remark is quoted by mr. lecky. [95] "irish debates," vol. iii., 130. [96] "commercial restraints," pp. 24-27. [97] swift's works (scott's edition), vol. vi., p. 277. [98] swift's works (scott's edition), vol. vi., 281, 282. [99] "england in the eighteenth century," vol. ii., 216. [100] swift's works (scott's edition), vol. vii., p. 115. [101] _ibid._, pp. 115, 116. [102] _ibid._, p. 118. [103] swift's works (scott's edition), vol. vii., pp. 118, 119. [104] _ibid._, p. 135. [105] "commercial restraints," p. 44. [106] swift's works (scott's edition), vol. vii., p. 199. [107] "eighteenth century," vol. ii., p. 218. [108] the resemblance between this account of the famine of 1740 and the account of the condition of ireland in the june preceding the last irish famine, as given by the _times_, is striking. in an article of the 26th june, 1845, that paper says--"the facts of irish destitution are ridiculously simple. they are almost too commonplace to be told. the people have not enough to eat. they are suffering a real, though an artificial, famine. nature does her duty. the land is fruitful enough. nor can it be fairly said that man is wanting. the irishman is disposed to work. in fact, man and nature together do produce abundantly. the island is full and overflowing with human food. but something ever interposes between the hungry mouth and the ample banquet. the famished victim of a mysterious sentence stretches out his hand to the viands which his own industry has placed before his eyes, but no sooner are they touched than they fly. a perpetual decree of _sic vos non nobis_ condemns him to toil without enjoyment. social atrophy drains off the vital juices of the nation." mr. lecky quotes from "the groans of ireland," a copy of which he found in the halliday collection of pamphlets in the irish academy ("eighteenth century," vol. ii., p. 218). my attention was attracted by the reference, and, on inquiry, i ascertained that there were several copies of this pamphlet in the library of the king's inns. [109] "commercial restraints," p. 3. [110] _ibid._, pp. 31, 32. [111] "commercial restraints," pp. 78, 79. [112] _ibid._, p. 69. [113] "ancient law," p. 24. [114] "english in ireland," vol. i., p. 497. [115] _ibid._, p. 500. [116] _ibid._, vol. ii., p. 247. [117] "eighteenth century," vol. ii., p. 241. [118] _ibid._, p. 243. [119] "macnevin's volunteers," p. 117. mr. froude well observes that these memorable words "had nothing to do with penal laws, and related entirely to the restrictions on trade." "english in ireland," vol. ii., p. 264. [120] "english in ireland," vol. i., p. 502. in these pages i have designedly refrained from referring to the penal code. i have confined myself entirely to a recital of the leading features of the restrictions imposed by england on irish trade. it is, in my opinion, impossible to estimate, in distinct scales, the evils done by these terrible agencies. they acted and re-acted on each other, and affected not merely the special objects of legislation, but more or less directly every interest in the community. the able writer of a pamphlet, "irish wool and woollens," to which i have frequently referred, says:--"possibly the laws that annihilated the wool trade wrought more destruction than the legislation that aimed at stamping out the catholic faith, for the trade acts snatched bread from the mouth, filched hope from the heart, and wrenched power from the hands of the industrial sections of the community." (p. 43.) from this opinion i am constrained to differ. speaking as a protestant, i have no hesitation in saying that the injuries inflicted on ireland by the penal code exceeded the injuries inflicted on her by the trade regulations. "well," says the rev. canon maccoll, "may mr. matthew arnold speak of that penal code, of which the monstrosity is not half known to englishmen, and may be studied by them with profit." ("arguments for and against home rule," p. 60.) chapter v. the irish volunteer movement and free trade. the nature and effects of the irish volunteer movement have often been stated and explained. i can only touch upon this movement in a very cursory manner, confining myself strictly to its bearings on the commercial arrangements between great britain and ireland. a very superficial study of irish history will show that national movements have a tendency to grow out of controversies on trade and mercantile questions. thus the destruction of the woollen trade by the english parliament led irish politicians to question the right of that parliament to legislate for ireland at all. william molyneux, in his celebrated "case of ireland stated," published in 1698, asks, "shall we of this kingdom be denied the birthright of every free-born english subject by having laws imposed on us when we are neither personally nor representatively present?"[121] "that book," says chief justice whiteside, "met with a fate which it did not deserve. the english parliament ordered that it should be burned, and thereby much increased the estimation in which it was held in ireland."[122] thus, too, the agitation against wood's half-pence, a purely commercial topic, assumed insensibly a national complexion. in his fourth drapier's letter, swift changes the controversy into an examination of ireland's political condition. "the remedy," he says, "is wholly in your own hands, and therefore i have digressed a little in order to refresh and continue that spirit so seasonably raised among you, and to let you see that by the laws of god, of nature, and of nations, and of your country, you are and ought to be as free a people as your brethren in england."[123] swift's prosecution by the government of the day and its failure are well known. lord chief justice whiteside thus comments on his public conduct. "had there been a few in the irish parliament possessed of the originality, energy, honesty, and capacity of swift, the management of political affairs and the true interests of the country would have been speedily improved instead of being shamefully neglected. swift created a public opinion; swift inspired hope, courage, and a spirit of justifiable resistance in the people; swift taught irishmen they had a country to love, to raise, and to cherish. no man who recalls the affectionate respect paid by his countrymen to swift while he lived, to his memory when dead, can impute political ingratitude to be amongst the vices of the irish people."[124] then, again, besides actively disputing england's right to destroy the trade and manufactures of the country, there was another remedy which lay in the people's own hands. they could, by the exercise of self-control, use irish manufactures alone. "england," says mr. froude, "might lay a veto on every healthy effort of parliamentary legislation; but england could not touch the self-made laws which the conscience and spirit of the nation might impose upon themselves." hely hutchinson has pointed out, that "the not importing goods from england is one of the remedies recommended by the council of trade in 1676 for alleviating some distress that was felt at the time; and sir william temple, a zealous friend to the trade and manufactures of england, recommends to lord essex, then lord lieutenant, to introduce, as far as can be, a vein of parsimony throughout the country in all things that are not perfectly the native growths and manufactures. the people of england cannot reasonably object to a conduct of which they have given a memorable example. in 1697 the english house of lords presented an address to king william to discourage the use and wearing of all sorts of furniture and cloths not of the growth and manufacture of that kingdom, and beseech him, by his royal example, effectually to encourage the use and wearing of all sorts of furniture and wearing cloths that are the growth of that kingdom or manufactured there; and king william assures them that he would give the example to his subjects, and would endeavour to make it effectually followed. the reason assigned by the lords for this address was that the trade of the nation had suffered by the late long and expensive war. but it does not appear that there was any pressing necessity at the time, or that their manufacturers were starving for want of employment. "common sense must discover to every man that when foreign trade is restrained, discouraged, or prevented in any country, and where that country has the materials for manufactures, a fruitful soil, and numerous inhabitants, the home trade is its best resource. if this is thought by men of great knowledge to be the most valuable of all trades, because it makes the speediest and surest returns, and because it increases at the same time two capitals in the same country, there is no nation on the globe whose wealth, population, strength, and happiness would be promoted by such a trade in a greater degree than ours."[125] the author of the "commercial restraints" was a barrister of great eminence, who had been prime serjeant, was a member of the irish privy council, principal secretary of state, and provost of trinity college, and a distinguished member of the irish parliament. this book, however, obtained a reception similar to that accorded to the "case of ireland," and the fourth drapier's letter. in the fly-leaf of the copy in the library of the honourable society of the king's inns, which i have utilised in arranging this treatise, there are the following observations:--"of this remarkable book see the _times_ of february 14, 1846. extract of a letter of sir valentine blake, m.p. for galway, in which he says, 'that immediately after its publication it was suppressed, and burned by the common hangman, and that mr. flood, in his place in the house of commons, said he would give one thousand pounds for a copy, and that the libraries of all the three branches of the legislature could not procure one copy of this valuable work.'" the editor of a new edition tells us that there are two copies of the work in the library of trinity college, dublin, both of which have been recently obtained, and from one of them the reprint is taken.[126] when hely hutchinson, in 1779, advocated "the necessity of using our own manufactures," he stated with accuracy that such arguments, though never so universal as at that time, were no new idea in ireland. it had been recommended half a century before by swift, and the celebrated bishop berkeley. "i heard," said swift, writing in 1720, "the late archbishop of tuam (dr. john vesey) make a pleasant observation that ireland would never be happy till a law was made for burning everything that came from england, except their people and their coals."[127] again, in 1727, he says, "the directions to ireland are very short and simple, to encourage agriculture and home consumption, and utterly discard all importations that are not absolutely necessary for health or life."[128] bishop berkeley, in the "querist," published in 1731, asks these questions, which show clearly his views:--"whether there be upon the earth any christian or civilised people so beggarly wretched or destitute as the common irish? whether, nevertheless, there is any other people whose wants may be more easily supplied from home?"[129] this advice was acted on by the irish people "after fifty years of expectation." "a great figure," says chief justice whiteside, "now appears upon the stage of public life--henry grattan, who took his seat for charlemont in december, 1775, and began his splendid, though chequered career. the condition of ireland at this epoch was deplorable. her industry was shackled, her trade was paralysed, her landed interest was depressed, her exchequer empty, her pension list enormous, her shores undefended, her army withdrawn. the policy and maxims of swift were revived, a spirit of discontent and a spirit of independence pervaded the nation; the colonies had revolted, republican ideas were afloat in the world, and ireland was menaced with invasion. the government, on being applied to for troops, declared they had none to spare, and that ireland must protect herself. the volunteer movement then commenced, and, to the amazement of ministers, they soon stood face to face with an armed nation."[130] mr. froude draws this picture of the condition of ireland in 1779. "the grand juries represented that the fields and highways were filled with crowds of wretched beings half naked and starving. foreign markets were closed to them. the home market was destroyed by internal distress, and the poor artisans who had supported themselves by weaving were without work and without food. they had bought english goods as long as they had the means to buy them. now in their time of dire distress they had hoped the english parliament would be their friend. they learnt with pain and surprise that the only boon which could give them relief was still withheld. they besought the king to interpose in their favour, and procure them leave to export and sell at least the coarse frieze blankets and flannels, which the peasants' wives and children produced in their cabins. eloquence and entreaty were alike in vain. the english parliament, though compelled at least to listen to the truth, could not yet bend itself to act upon it. the house of commons still refused to open the woollen trade in whole or in part, and ireland, now desperate and determined, and treading ominously in the steps of america, adopted the measures which long before had been recommended by swift, and resolved to exclude from the irish market every article of british manufacture which could be produced at home."[131] the earl of shelburne, speaking in the british house of lords on the 1st of december, 1779, thus described the attitude of ireland:-"ireland disclaimed any connection with great britain, she instantly put herself in a condition of defence against her foreign enemies; oppressed at one time by england, and at length reduced to a state of calamity and distress experienced by no other country that ever existed, unless visited by war or famine, and perceiving that all prospect of justice or relief was in a manner finally closed, and that she must perish or work out her own salvation, she united as one man to rescue herself from that approaching destruction which seemed to await her. the people instantly armed themselves and the numbers armed soon increased to upwards of 40,000 men, and were daily augmenting. this most formidable body was not composed of mercenaries, who had little or no interest in the issue, but of the nobility, gentry, merchants, citizens, and respectable yeomanry, men able and willing to devote their time and part of their property to the defence of the whole and the protection and security of their country. the government had been abdicated and the people resumed the powers vested in it, and in doing so were fully authorised by every principle of the constitution, and every motive of self-preservation, and whenever they should again delegate their inherent power they firmly and wisely determined to have it so regulated and placed upon so large and liberal a basis that they should not be liable to suffer from the same oppression in time to come, nor feel the fatal effects and complicated evils of maladministration, of calamity without hope of redress, or of iron-handed power without protection. "to prove that these were the declared and real sentiments of the whole irish nation, he should not dwell upon this or that particular circumstance, upon the resolutions of country or town meetings, upon the language of the associations, upon the general prevalent spirit of all descriptions of men of all religions; matters of this kind, however true or manifest, were subject to and might admit of controversy. he would solely confine himself to a passage contained in a state paper, he meant the address of both houses of the irish parliament, declaring that nothing but the granting the kingdom a 'free trade' could save it from certain ruin. here was the united voice of the country conveyed through its proper constitutional organs, both houses of parliament, to his majesty, against which there was but one dissentient voice in the houses, not a second, he believed, in the whole kingdom. church of england men and roman catholics, dissenters, and sections of all denominations, whigs and tories, if any such were to be found in ireland, placemen, pensioners, and county gentlemen, englishmen by birth, in short, every man in and out of the house, except the single instance mentioned, had all united in a single opinion that nothing would relieve the country short of a free trade."[132] his lordship proceeds to explain the meaning of the expression "free trade," which was used in a sense different from the modern acceptation of that term:-"a free trade, he was well persuaded, by no means imported an equal trade. he had many public and private reasons to think so. a free trade imported, in his opinion, an unrestrained trade to every part of the world, independent of the control, regulation, or interference of the british legislature. it was not a speculative proposition, confined to theory or mere matter of argument; the people of ireland had explained the context, if any ambiguity called for such an explanation; he received accounts from ireland that a trade was opened between the northern part of ireland and north america with the privity of congress, and indemnification from capture by our enemies; that provision ships had sailed to the same place--nay, more, that doctor franklyn, the american minister at paris, had been furnished with full power to treat with ireland upon regulations of commerce and mutual interest and support, and that whether or not any such treaty should take place, the mutual interests of both countries, their very near affinity in blood, and their established intercourse, cemented farther by the general advantages arising from an open and unrestrained trade between them, would necessarily perfect what had already actually begun."[133] mr. lecky thus accurately and distinctly describes the nature of the commercial arrangements under which ireland obtained the limited free trade which she enjoyed, with some modifications, till the union:-"the fear of bankruptcy in ireland; the non-importation agreements, which were beginning to tell upon english industries; the threatening aspect of an armed body, which already counted more than 40,000 men; the determined and unanimous attitude of the irish parliament; the prediction of the lord-lieutenant that all future military grants in ireland depended upon his (lord north's) course; the danger that england, in the midst of a great and disastrous war, should be left absolutely without a friend, all weighed upon his mind; and at the close of 1779, and in the beginning of 1780, a series of measures was carried in england which exceeded the utmost that a few years before the most sanguine irishman could have either expected or demanded. the acts which prohibited the irish from exporting their woollen manufactures and their glass were wholly repealed, and the great trade of the colonies was freely thrown open to them. it was enacted that all goods that might be legally imported from the british settlements in america and africa to great britain, may be in like manner imported directly from those settlements into ireland, and that all goods which may be legally exported from great britain into those settlements may in like manner be exported from ireland, on the sole condition that duties equal to those in british ports be imposed by the irish parliament on the goods and exports of ireland. the acts which prohibited carrying gold and silver into ireland were repealed. the irish were allowed to import foreign hops. they were allowed to become members of the turkey company, and to carry on a direct trade between ireland and the levant sea.[134] "thus fell to the ground that great system of commercial restriction which began under charles ii., which under william iii. acquired a crushing severity, and which had received several additional clauses in the succeeding reigns. the measures of lord north, though obviously due in a great measure to intimidation and extreme necessity, were at least largely, wisely, and generously conceived, and they were the main sources of whatever material prosperity ireland enjoyed during the next twenty years. the english parliament had been accustomed to grant a small bounty--rising in the best years to â£13,000--on the importation into england of the plainer kinds of irish linen. after the immense concessions made to irish trade, no one could have complained if this bounty had been withdrawn, but north determined to continue it. he showed that it had been of real use to the irish linen manufacture, and he strongly maintained that the prosperity of ireland must ultimately prove a blessing to england."[135] speaking at the guildhall in bristol in 1780, edmund burke thus described the concessions to ireland and the series of circumstances to which these measures owed their origin:-"the whole kingdom of ireland was instantly in a flame. threatened by foreigners, and, as they thought, insulted by england, they resolved at once to resist the power of france and to cast off yours. as for us, we were able neither to protect nor to restrain them. forty thousand men were raised and disciplined without commission from the crown; two illegal armies were seen with banners displayed at the same time and in the same country. no executive magistrate, no judicature in ireland, would acknowledge the legality of the army which bore the king's commission, and no law or appearance of law authorised the army commissioned by itself. in this unexampled state of things, which the least error, the least trespass on our part would have hurried down the precipice into an abyss of blood and confusion, the people of ireland demanded a freedom of trade with arms in their hands. they interdict all commerce between the two nations; they deny all new supply in the house of commons, although in time of war; they stint the trust of the old revenue given for two years to all the king's predecessors to six months. the british parliament, in a former session frightened into a limited concession by the menaces of ireland, frightened out of it by the menaces of england, were now frightened back again, and made an universal surrender of all that had been thought the peculiar, reserved, uncommunicable rights of england--the exclusive commerce of america, of africa, of the west indies, all the enumerations of the acts of navigation, all the manufactures--iron, glass, even the sacred fleece itself--all went together. no reserve, no exception, no debate, no discussion. a sudden light broke in upon us all. it broke in, not through well-contrived and well-disposed windows, but through flaws and breaches, through the yawning chasms of our ruin. we were taught wisdom by humiliation. no town in england presumed to have a prejudice or dared to mutter a petition. what was worse, the whole parliament of england, which retained authority for nothing but surrenders, was despoiled of every shadow of its superintendence. it was, without any qualification, denied in theory as it had been trampled upon in practice."[136] "the chain," says mr. froude, "was allowed to remain till it was broken by the revolt of the american colonies, and ireland was to learn the deadly lesson that her real wrongs would receive attention only when england was compelled to remember them through fear."[137] the commercial privileges thus obtained would have been practically valueless unless accompanied with legislative independence. i have explained the system by which measures proposed by the irish parliament were robbed of their efficiency by the action of the english and irish privy councils. "to prevent," says mr. froude, "the irish parliament from being troublesome, it was chained by poynings' act; and when the parliament was recalcitrant, laws were passed by england over its head." at this time the english privy council actively exercised its influence on the commercial legislation of the irish parliament. "the business of sugar-refining had recently taken great head in ireland, and the irish parliament sought to defend it against the english monopoly by an import duty on refined sugar; while they sought to give it a fair stimulus by admitting raw sugar at a low rate. this the privy council reversed, reducing the duty on refined sugar 20 per cent. under the drawback allowed in england to the english refiner on export, and thereby giving the latter a virtual premium to that amount, and also increasing the duty on the raw sugar. the time was ill-chosen for further invasions on irish rights."[138] "several minor circumstances concurred to exasperate the irish people still further, and to render irrevocable and, soon after, irresistible, their determination to have a free parliament, without which they said they never could obtain the extension of their trade amongst other benefits sought, nor even be sure of preserving what had been conceded to them."[139] chief justice whiteside has given, in a few words, this spirited and accurate description of the attainment of irish legislative independence--"down went poynings' law, useful in its day; down went the act of philip and mary; down went the obnoxious statute of george i.; the mutiny bill was limited; restrictions on irish trade vanished; the ports were opened; the judges were made irremovable and independent. i cannot join in the usual exultation at the proceedings of the volunteers; on the contrary, i regret their occurrence. not that i think the resolutions carried at dungannon were in themselves unjust; not that i would hesitate to claim for ireland all the rights possessed by our english fellow-subjects; but because all these inestimable advantages were not granted by the wisdom of the government, through the recognised channel of parliament, and were carried at the point of the bayonet. the precedent was dangerous. had walpole been alive he would have repented his blunder in listening to primate boulter, and refusing to be advised by the counsels of swift. but the deed was done."[140] on the 16th of april, 1782, in the irish house of commons, grattan thus expressed his high-wrought enthusiasm:-"i found ireland on her knees. i watched over her with an eternal solicitude. i have traced her progress from injuries to arms, and from arms to liberty. spirit of swift, spirit of molyneux, your genius has prevailed. ireland is now a nation. in that new character i hail her, and bowing in her august presence, i say, esto perpetua."[141] footnotes: [121] reg. _v._ o'connell, p. 533. this observation was made by mr. (afterwards chief justice) whiteside in his speech in defence of mr. (now sir c. gavan) duffy, in the state trials, 1844. [122] "case of ireland," p. 105. [123] swift's works (scott's edition), vol. vi., p. 448. [124] "life and death of the irish parliament," p. 89. [125] "commercial restraints," pp. 211-213. [126] "commercial restraints," re-edited, with sketch of the author's life, introduction, notes, and index, by rev. w. g. carroll, m.a. dublin: m. h. gill & son. [127] swift's works (scott's edition), vol. vi., p. 275. [128] _ibid._, vol. vii., p. 182. [129] "tracts and treatises" (ireland), 2, p. 161. [130] "life and death of the irish parliament," p. 125. [131] "english in ireland," ii. 239, 240. [132] the dissentient voice was that of sir r. heron, secretary to the lord-lieutenant. [133] "parliamentary debates," 14, pp. 83-85. [134] 20 geo, iii. (eng.), cc. 6, 10, 18. [135] "eighteenth century," iv. 500, 501. some commercial concessions which were, however, manifestly insufficient, had been previously granted. see "eighteenth century," iv., pp. 429, 430, 451. [136] edmund burke on "irish affairs," edited by m. arnold, pp. 129, 130. [137] "english in ireland," vol. ii., p. 104. [138] "an argument for ireland," by j. o'connell, m.p., p. 171. [139] "an argument for ireland," p. 172. [140] "life and death of the irish parliament," p. 126. [141] grattan's "speeches," i. 183. chapter vi. the commercial arrangements between england and ireland, 1782-1800. the commercial relations between england and ireland in the interval between 1782 and 1800 should be clearly understood. ireland had, by the acts of 1779 and 1780, obtained the freedom of foreign and colonial trade, both of export and of import. by an act of 1793, she had obtained liberty to re-export foreign and colonial goods from her own shores to england.[142] she had, by an english act of the same year, got the illusory privilege of having an eight-hundred-ton east indiaman to make up a cargo for the east in her ports. but she had not free trade to the east, nor had she the admission to english ports for her goods.[143] "the practical boon," says mr. butt, "that was won for the irish nation (by the volunteers), was the right of the parliament of ireland to control our own harbours, and to regulate our own trade. of course the trade of ireland was subject to the interference which england could exercise by her dominion over the colonies and dependencies of the imperial crown. a law which would have prohibited the exportation of irish goods either to england or france or canada, would have been beyond the power of the english parliament to pass, but it was perfectly competent to that parliament to prohibit the importation of these goods into england or canada, just in the same manner as the french government might have prohibited their importation into france. the english parliament was the supreme legislature for england and the colonies, and had just the same power of legislating against the importation of irish products, as they would have had against those of holland or of france." thus stood the irish parliament in constitutional position from 1782 until its dissolution.[144] england, as we have seen, had laid prohibitory duties on irish manufactures, whereas ireland, bound by the chain of poynings' law, was unable to protect her own industries. "it was very natural," in the words of mr. pitt, "that ireland, with an independent legislature, should now look for perfect equality." in 1783 mr. griffiths, advocating in the irish house of commons the protection of irish manufacturers, said: "lord north knew very well when he granted you a free trade that he gave you nothing, or, at most, a useless bauble, and when petitions were delivered against our free trade by several manufacturing towns in england, he assured them in circular letters that nothing effectual had or should be granted to ireland."[145] the irish parliament, however, on obtaining legislative independence, refrained from measures of retaliation in the hope that the commercial relations of both countries would be settled on a satisfactory basis. mr. pitt, in introducing in the english house of commons his celebrated commercial propositions for the regulation of trade between england and ireland, thus speaks: "to this moment (february, 1785) no change had taken place in the intercourse between great britain and ireland themselves. some trivial points, indeed, had been changed, but no considerable changes had taken place in our manufactures exported to ireland, or in theirs imported to england. that, therefore, which had been done was still believed by the people of ireland to be insufficient, and clamours were excited and suggestions published in dublin and elsewhere of putting duties on our products and manufactures under the name of protecting duties."[146] chief justice whiteside thus states summarily the scope of mr. pitt's propositions:-"it was proposed to allow the importation of the produce of all other countries through great britain into ireland, or through ireland into great britain, without any increase of duty on that account. it was proposed, as to any article produced or manufactured in ireland or in england, where the duties were then different on importation into either country, to reduce those duties in the kingdom where they were highest down to the lower scale. and it was asked from ireland that when the gross hereditary revenue should rise above a fixed sum, the surplus should be appropriated towards the support of the naval force of the empire. these propositions passed through both branches of the irish legislature, were remitted to england, and by pitt laid before the british house of commons. he was immediately attacked by fox and the whigs, aided by lord north, who one and all declared themselves the uncompromising enemies of free trade. and these factious men declared that in the interests of the british manufacturers they could not allow irish fustians to be brought into england to ruin english manufacturers. the fustian they affected to fear was nothing to be compared with the fustian of their speeches. the enlightened views of the great conservative minister were in a measure baffled by the shameful opposition of fox, and of his friends in parliament, and of thick-headed cotton manufacturers out of the house. the result was that pitt was coerced to introduce exceptions and limitations. the eleven propositions grew up to twenty, the additional propositions relating to various subjects, patents, copyrights, fisheries, colonial produce, navigation laws, the enactment as to which was that whatever navigation laws were then, or should thereafter be enacted by the legislature of great britain, should also be enacted by the legislature of ireland; and in favour of the old east india company monopoly, ireland was debarred from all trade beyond the cape of good hope to the straits of magellan." "there seemed to be nothing hurtful to the pride of ireland in the affair. but when fox found that his great rival defeated him on the commercial part of the question, he artfully, as lord stanhope shows, changed his ground of attack, and availing himself of the limitations which pitt had been compelled to introduce into his original scheme, fox cried out that this was a breach of ireland's newly-granted independence. 'i will not,' said fox, with incredible hypocrisy, or with incredible folly, 'i will not barter english commerce for irish slavery, this is not the price i would pay, nor is this the thing i would purchase.'" "when the twenty propositions of mr. pitt were returned to the irish parliament, they encountered a fierce and protracted opposition. mr. grattan's speech has been extolled as one of his ablest--it is not intemperate. his chief objection was to the fourth resolution, by which he said, 'we are to agree to subscribe whatever laws the parliament (of england) shall subscribe respecting navigation; we are to have no legislative power--then there is an end of your free trade and of your free constitution.' he also curiously objected that the measure was 'an union--an incipient and a creeping union--a virtual union establishing one will in the general concerns of commerce and navigation, and reposing that will in the parliament of great britain.'" "dublin was illuminated, the people exulted in the abandonment of the scheme."[147] "it was not," says mr. john o'connell, "till after a fair experiment and delay that the irish parliament, despairing of getting england to terms by fair means, commenced retaliation. to this we have the incontestable testimony of the commissioners of revenue inquiry in 1822, an authority by no means disposed to be over-favourable to irish interests or over-anxious for the credit of the irish parliament. in their fourth report, speaking of the system of restrictions on english goods and bounties on their own, to which that parliament had recourse, they say: "ireland was undoubtedly instigated to the adoption of this course by the exclusive spirit of the commercial policy of england. it will be found that few exceptions in favour of the sister kingdom were inserted in the list of goods absolutely prohibited to be imported into this country (england), in which list all goods made of cotton-wool, every description of manufactured woollen, silk, and leather, together with cattle, sheep, malt, stuffs, and other less important articles were at one time comprehended. in this embarrassing situation of exclusion from the markets of great britain, and deriving little assistance from foreign trade, ireland had no other course to pursue for the protection of her own industry except that of maintaining, by restrictive duties on the importations from great britain, the manufacturing means she possessed for the supply of her own markets."[148] that ireland made a great advance in prosperity in the interval between 1782 and 1800 is in my judgment incontrovertible. mr. o'connell, when conducting his own defence in the state trials of 1844, thus spoke with reference to this subject: "i may be asked whether i have proved that the prophecy of fox was realised--that the prosperity that was promised to ireland was actually gained by reason of her legislative independence. now, pray, listen to me; i shall tell you the evidence by which i shall demonstrate this fact. it is curious that the first of them is from mr. pitt, again in the speech he made in 1799 in favour of the resolutions for carrying the union. if he could have shown that ireland was in distress and destitution, that her commerce was lessened, that her manufactures were diminished, that she was in a state of suffering and want by reason of, or during the legislative independence of the country, of course he would have made it his topic in support of his case, to show that a separate legislature had worked badly, and produced calamities and not blessings; but the fact was too powerful for him. he had ingenuity to avail himself of the fact, which fact he admitted; and let us see how he admitted it. he admitted the prosperity of ireland, and here was his reasoning. now, mark it. 'as ireland,' he said, 'was so prosperous under her own parliament, we can calculate that the amount of her prosperity will be trebled under a british legislature.' he first quoted a speech of mr. foster's in 1785, in these words:--'the exportation of irish produce to england amounts to two millions and a half annually, and the exportation of british produce to ireland amounts to one million.' instead of saying, 'you are in want and destitution; unite with england, and you will be prosperous,' he was driven to admit this: 'ireland is prosperous now with her own parliament, but it will be trebly prosperous when you give up that parliament, or have it joined with the parliament of england.' so absurd a proposition was never yet uttered; but it shows how completely forced he was to admit irish prosperity, when no other argument was left in his power; but the absurd observation i have read to you. he gives another quotation from foster, in which it is said britain imports annually â£2,500,000 of our products, all, or nearly all, duty free, and we import a million of hers, and raise a revenue on almost every article of it. this relates to the year 1785. pitt goes on to say: 'but how stands the case now (1799)? the trade at this time is infinitely more advantageous to ireland. it will be proved from the documents i hold in my hand--as far as relates to the mere interchange of manufactures--that the manufactures exported to ireland from great britain in 1797 very little exceeded one million sterling (the articles of produce amount to nearly the same sum); whilst great britain, on the other hand, imported from ireland to the amount of more than three millions in the manufacture of linen and linen-yarn, and between two and three millions in provisions and cattle, besides corn and other articles of produce.' 'that,' said mr. pitt, 'was in 1785, three years after her legislative independence; that was the state of ireland.' you have seen, gentlemen, that picture. you have heard that description. you have heard that proof of the prosperity of ireland. she then imported little more than one million's worth of english manufacture; she exported two and a half millions of linen and linen-yarn, adding to that the million of other exports. there is a picture given of her internal prosperity. recollect that we now (1844) import largely english manufactures, and that the greatest part of the price of these manufactures consists of wages which the manufacturer gives to the persons who manufacture them. â£2,500,000 worth of linen and linen-yarn were exported, and one million of other goods. compare that with the present state of things. does not every one of you know there is scarcely anything now manufactured in ireland, that nearly all the manufactures used in ireland are imported from england? i am now showing the state of irish prosperity at the time i am talking of. i gave you the authority of foster (no small one) and of pitt for irish prosperity during that time. i will give you the authority of another man that was not very friendly to the people of this country--that of lord clare. lord clare made a speech in 1798, which he subsequently published, and in which i find this remarkable passage, to which i beg leave to direct your particular attention. 'there is not,' said his lordship, 'a nation on the face of the habitable globe which has advanced in cultivation, in manufactures, with the same rapidity in the same period as ireland' (namely, from 1782 to 1798). that was the way in which irish legislative independence worked, and i have in support of it the evidence of pitt, foster, and lord clare; and lord grey, in 1799, talking of scotland in the same years, says: 'in truth, for a period of more than forty years after the [scottish] union, scotland exhibited no proofs of increased industry and rising wealth.' lord grey, in continuation, stated that 'till after 1748 there was no sensible advance of the commerce of scotland. several of her manufactures were not established till sixty years after the union, and her principal branch of manufacture was not set up, i believe, till 1781. the abolition of the heritable jurisdictions was the first great measure that gave an impulse to the spirit of improvement in scotland. since that time the prosperity of scotland has been considerable, but certainly not so great as that of ireland has been within the same period.' lord plunket, in his speech in 1799, in one of his happiest efforts of oratory, speaks of her as of 'a little island, with a population of four or five millions of people, hardy, gallant, and enthusiastic, possessed of all the means of civilisation, agriculture, and commerce well pursued and understood, a constitution fully recognised and established, her revenues, her trade, her manufactures thriving beyond her hope, or the example of any other country of her extent, within these few years advancing with a rapidity astonishing even to herself, not complaining of deficiency in these respects, but enjoying and acknowledging her prosperity.' "gentlemen of the jury, i will now direct your attention to such documents as will tend to corroborate the facts contained in those i have already adverted to. you have heard that in 1810 a meeting was held in dublin to petition the legislature for a repeal of the union. i will read an unconnected passage from a speech delivered by a gentleman belonging to a most respectable house in this city.[149] it is as follows:--'some of us remember this country before we recovered and brought back our constitution in the year 1782. we are reminded of it by the present period. then as now our merchants were without trade, our shopkeepers without customers, our workmen without employment; then as now it became the universal feeling that nothing but the recovery of our rights could save us. our rights were recovered, and how soon afterwards, as if by magic, plenty smiled on us, and we soon became prosperous and happy.' let me next adduce the testimony of a class of citizens who, from their position and the nature of their avocations, were well calculated to supply important evidence on the state of ireland subsequent to the glorious achievements of 1782. the bankers of dublin held a meeting on the 18th of december, 1798, at which they passed the following resolutions:--'resolved, that since the renunciation of the power of great britain in 1782 to legislate for ireland, the commerce and prosperity of this kingdom have eminently increased,' 'resolved, that we attribute these blessings, under providence, to the wisdom of the irish parliament.' the guild of merchants met on the 14th january, 1799, and passed a resolution declaring 'that the commerce of ireland has increased, and her manufactures improved beyond example, since the independence of this kingdom was restored by the exertions of our countrymen in 1782. resolved, that we look with abhorrence on any attempt to deprive the people of ireland of their parliament, and thereby of their constitutional right and immediate power to legislate for themselves.' i have given abundance of proofs, from extracts i have read, of the prosperity of ireland under the fostering care of her own parliament. a parliamentary document shows that, from 1785 to the period of the union, the increase in the consumption of teas in ireland was 84 per cent., while it was only 45 per cent. in england. the increase of tobacco in ireland was 100 per cent., in england 64; in wine, in ireland 74 per cent., in england 52; in sugar, 57 per cent. in ireland, and in england 53; in coffee, in ireland 600 per cent., in england 75. you have this proof of the growing prosperity of ireland from the most incontestable evidence. no country ever so rapidly improved as ireland did in that period."[150] footnotes: [142] 33 geo. iii. (eng.), c. 63. [143] "an argument for ireland," p. 210. [144] "irish federalism," pp. 38, 39. [145] "irish debates," iii. 133. [146] "parliamentary register," xvii., p. 250. [147] "life and death of the irish parliament," pp. 142-145. mr. morley's account of the part taken by fox in this transaction is substantially in accord with that given by chief justice whiteside. see "english men of letters"--"edmund burke," by john morley, p. 125. [148] "an argument for ireland," p. 211. [149] a mr. hutton, the head of a great carriage manufactory in dublin. [150] "r. _v._ o'connell," pp. 623-626. this part of mr. o'connell's speech is simply an echo of the speech he delivered in 1843 during the discussion in the dublin corporation on repeal of the union, in which he relied on the same documentary evidence of ireland's material prosperity between 1782 and 1800. these proofs could easily be multiplied. thus mr. jebb, afterwards a justice of the court of king's bench in ireland, published a pamphlet in 1798, in which he says: "in the course of fifteen years our commerce, our agriculture, and our manufactures have swelled to an amount that the most sanguine friends of ireland could not have dared to prognosticate." chapter vii. the commercial arrangements between england and ireland effected by the act of legislative union. the commercial arrangements effected between england and ireland at the time of the union are embodied in the sixth article of the act of union. this article provides that in respect of trade and navigation the subjects of great britain and ireland are to be on the same footing from the 1st of january, 1801; that there are to be no duties or bounties on the exportation of produce of one country to the other; that all articles (except certain specified articles scheduled, which were to be subject to certain countervailing duties) the produce of either country are to be imported free from duty; that articles enumerated in schedule ii. are to be subject for twenty years to the duties therein mentioned; that the woollen manufacturers are to pay on importation into each country from the other the duties now payable on importation into ireland; that the duties on salt, hops, and wools are not to exceed the duties that were then paid on importation into ireland; that the duties on calicoes and muslins are to be liable to the duties then payable on these commodities on importation from great britain to ireland till the 5th of january, 1808; that after that date these duties are to be reduced to 10 per cent. till january 5th, 1821, and then to cease altogether; that duties on cotton-yarn and cotton-twist are to be liable to the duties then payable on these commodities[151] till january 5th, 1808; that these duties are to be reduced annually from that date, and on the 5th of january, 1816, to cease altogether; that the produce of either country, subject to internal duty, is, on importation into each country, to be subject to countervailing duty; that the produce of either country exported through the other is to be subject to the same charges as if it had been exported directly from the country producing it; that duties charged on the import of foreign or colonial produce into either country are, on their export to the other, to be drawn back so long as the expenditure of the united kingdom shall be defrayed by proportional contributions, but that this provision is not to extend to duties on corn. the speaker of the irish commons--the right hon. john foster (afterwards lord oriel)--was the chief among several able opponents of these regulations. in 1799 and in 1800 he made powerful speeches in opposition, and went largely into the subject of the commercial relations of the two countries, and exposed their past and future inequalities and injustices towards irish interests. his objections to the 6th article of union were, briefly, as follows:-"that they lowered all protecting duties that were above 10 per cent. to that amount, and thus exposed the infant manufactures of ireland (which the irish parliament had in latter years begun to protect) to the overwhelming competition of the great capital and long-established skill and ability of england. that no less than seventy articles of our manufacture would thus be injured, and our cotton manufactures in particular, in which we had begun to make most promising advances, would be nearly ruined. that no preference over foreign goods in the british market was given. that the 'new and excessive' duties on salt were made perpetual, those on hops and coals unalterable. that our brewery was left unprotected, etc., etc." the opponents of the union drew up a solemn and elaborate protest in order to perpetuate on the records of parliament, and hand down to posterity, their views on that subject. lord corry moved the protest and address to the king, which thus speaks of the commercial arrangements proposed and subsequently carried out under the provisions of the act of union: "were all the advantages which without any foundation they have declared that this measure offers, to be its instant and immediate consequence, we do not hesitate to say expressly that we could not harbour the thought of accepting them in exchange for our parliament, or that we could or would barter our freedom for commerce, or our constitution for revenue; but the offers are mere impositions, and we state with the firmest confidence that in commerce or trade their measure confirms no one advantage, nor can it confirm any, for by your majesty's gracious and paternal attention to this your ancient realm of ireland, every restriction under which its commerce laboured has been removed during your majesty's auspicious reign, and we are now as free to trade to all the world as britain is. in manufactures, any attempt it makes to offer any benefit which we do not now enjoy is vain and delusive, and whenever it is to have effect, that effect will be to our injury. most of the duties on imports which operate as protections to our manufactures, are under its provisions either to be removed or reduced immediately, and those which will be reduced are to cease entirely at a limited time, though many of our manufacturers owe their existence to the protection of those duties, and though it is not in the power of human wisdom to foresee any precise time when they may be able to thrive without them. your majesty's faithful commons feel more than an ordinary interest in laying this fact before you, because they have under your majesty's approbation raised up and nursed many of those manufactures, and by so doing have encouraged much capital to be vested in them, the proprietors of which are now to be left unprotected, and to be deprived of the parliament on whose faith they embarked themselves, their families, and properties in the undertaking."[152] mr. pitt could not have been ignorant of the effect which english competition would produce on the infant and practically unprotected manufactures of ireland. thus fifteen years previously, when introducing his commercial propositions of 1785 in the english house of commons, he calmed the fears and raised the hopes of the english manufacturers:-"it was said that our manufactures were all loaded with heavy taxes. it was certainly true, but with that disadvantage they had always been able to triumph over the irish in their own markets, paying an additional ten per cent. on the importation to ireland, and all the charges. but the low price of labour was mentioned. would that enable them to undersell us? manufacturers thought otherwise--there were great obstacles to the planting of any manufacture. it would require time for arts and capital, and the capital would not increase without the demand also, and in an established manufacture improvement was so rapid as to bid defiance to rivalship."[153] the irish parliament, in wishing to protect their infant manufactures, were strictly within the lines of modern economic science. thus mr. john stuart mill speaks of the wisdom of protecting duties in countries whose conditions are similar to those of ireland as described by mr. pitt:-"the only case in which, on mere principles of political economy, protecting duties can be defensible, is when they are imposed temporarily (especially in a young and rising nation) in the hopes of naturalising a foreign industry in itself perfectly suitable to the circumstances of the country. the superiority of one country over another in a branch of production often arises only from having begun it sooner. there may be no inherent advantage on one part or disadvantage on the other, but only a present superiority of acquired skill and experience. a country which has this skill and experience yet to acquire may in other respects be better adapted to the production than those that were earlier in the field; and, besides, it is a just remark of mr. rae that nothing has a greater tendency to promote improvements in any branch of production than its trial under a new set of conditions. but it cannot be expected that individuals should at their own risk, or rather to their certain loss, introduce a new manufacture and bear the burthen of carrying it on until the producers have been educated up to the level of those with whom the processes are traditional. a protecting duty continued for a reasonable time will sometimes be the least inconvenient mode in which the nation can tax itself for the support of such an experiment. but the protection should be confined to cases in which there is good ground of assurance that the industry which it fosters will, after a time, be able to dispense with it, nor should the domestic producers ever be allowed to expect that it will be continued to them beyond the time necessary for a fair trial of what they are capable of accomplishing."[154] the irish manufactures, which had revived by the protecting care of the irish parliament, died when that safeguard was removed. mr. bushe, who was eighteen years solicitor-general under a tory administration, and twenty years chief justice of ireland, thus briefly described in the irish parliament the course of policy pursued by england towards the "sister country":-"for centuries have the british nation and parliament kept you down, shackled your commerce, paralysed your exertions, despised your character, and ridiculed your pretensions to any privileges, commercial or constitutional."[155] "i cannot think," says mr. chaplin, from his place in the english house of commons, "that any reforms or remedial legislation that may be adopted (for ireland) can be considered satisfactory or complete which do not include encouragement and, if necessary, assistance for the re-establishment of those industries which in former days were destroyed by the bitterly unjust and selfish policy of england."[156] printed by cassell & company, limited, la belle salvage, london, e.c. footnotes: [151] on importation from great britain to ireland. [152] mr. whiteside read this protest in his speech in defence of mr. c. g. duffy, in the state trials, 1844. ("r. _v._ o'connell," pp. 528, 529.) [153] "parliamentary register," xvii., pp. 255, 256. [154] "principles of political economy," p. 556. [155] "life of plunket," ii., p. 354. [156] hansard, 261, third series, p. 836. _by the same author._ the irish parliament: what it was and what it did. by j. g. swift macneill, m.a. price 1s. "_it contains, i think, within a wonderfully narrow compass, the heart and pith of a large as well as sad chapter of history._"--rt. hon. w. e. gladstone, m.p. "mr. swift macneill explains the constitution of the irish parliament, both before 1782 and--what has been called grattan's parliament--after 1782, and shows the differences and relations between it and the english parliament; and he offers such an account of the working of the system--impartial in spirit and supported by abundant quotations from contemporary public men, both irish and english--as is fitted to warn us against its revival, at least without serious modifications."--_contemporary review._ "the history of the national parliamentary government of ireland is but vaguely known, and it is important just now that information respecting it should be accessible in a popular form. this work puts the subject into a nutshell."--_literary world._ "we have never seen the workings of the old irish parliament placed before the reader in so accessible a form as in this volume, for which both mr. macneill and messrs. cassell & co., who are the publishers, deserve the best thanks of every reader."--_liverpool mercury._ "the book has a value which it would not be easy to overrate, and should find its way into the hands of every politician."--_plymouth western daily mercury._ "a little book of exceeding value."--_londonderry journal._ "this concise but clear and comprehensive treatise from the pen of mr. j. g. swift macneill, m.a., is issued at a peculiarly appropriate time, and will from that circumstance, no less than from its own merits, be gratefully welcomed by those who are anxious for light and leading on a question which has suddenly become one of the most pressing, as it has long been one of the most important, with which the statesmen of the present day are called upon to grapple."--_nottingham guardian._ cassell & company, limited, _ludgate hill, london_. _eleventh and cheap edition, cloth_, 3s. 6d. the life of the right hon. w. e. gladstone. _by g. barnett smith._ "a trustworthy and interesting picture of a noble life and character."--_daily news._ "a sober, solid, but interesting contribution to the political history of the victorian epoch."--_daily telegraph._ "the book should be read by every one who takes the least interest in the political history of the country."--_daily chronicle._ "an elaborate and ably-written biography of mr. gladstone as a statesman and a writer."--_echo._ "mr. barnett smith's life of mr. gladstone is _a work of national importance_, and it should be read and studied by all classes."--_nottingham daily express._ "many a thoughtful working man will hasten to add this book to his little store of fondly-cherished volumes."--_north british daily mail._ "a very complete account of mr. gladstone's relations to the history of the past forty years."--_observer._ "a noble biography of a noble man."--_aberdeen free press._ "the minute accuracy of the painstaking record is indeed wonderful, considering the vastness of the field over which the biographer has been obliged to travel. _the volumes are, in fact, a history of england during the past half century_, as well as a biography of the individual whose name they bear."--_freeman._ "the most superficial glance at the book is enough to secure the impression of great power in many departments on the part of the subject of it, and of great penetration, care, deliberation, and tact on the part of the author."--_nonconformist._ "_the most comprehensive and satisfactory life of mr. gladstone_ which has yet been compiled and given to the public."--_edinburgh daily review._ cassell & company, limited, _ludgate hill, london_. a collection of state-papers. [price two shillings.] a collection of state-papers, relative to the first acknowledgment of the sovereignty of the united states of america, and the reception of their minister plenipotentiary, by their high mightinesses the states general of the united netherlands to which is prefixed, the political character of john adams, ambassador plenipotentiary from the states of north america, to their high mightinesses the states general of the united provinces of the netherlands. by an american. likewise, an essay on canon and feudal law, by john adams, esq; london: printed for john fielding, no. 23, pater-noster-row; john debrett, opposite burlington-house, piccadilly; and john sewell, no. 32, cornhill. 1782. [entered at stationers-hall.] introduction as the states general of the united provinces have acknowledged the independency of the united states of north america, and made a treaty of commerce with them, it may not be improper to prefix a short account of john adams, esq; who, pursuing the interests of his country, hath brought about these important events. mr. adams is descended from one of the first families which founded the colony of the massachusets bay in 1630. he applied himself early to the study of the laws of his country; and no sooner entered upon the practice thereof, but he drew the attention, admiration, and esteem of his countrymen, on account of his eminent abilities and probity of character. not satisfied with barely maintaining the rights of individuals, he soon signalized himself in the defence of his country, and mankind at large, by writing his admirable dissertation on the canon and feudal laws; a work so well worth the attention of every man who is an enemy to ecclesiastical and civil tyranny, that it is here subjoined. it showed the author at an early period capable of seconding efficaciously the formation of republics on the principles of justice and virtue. such a man became most naturally an object of governor barnard's seduction. the perversion of his abilities might be of use in a bad cause; the corruption of his principles might tarnish the best. but the arts of the governor, which had succeeded with so many, were ineffectual with mr. adams, who openly declared he would not accept a favour, however flatteringly offered, which might in any manner connect him with the enemy of the rights of his country, or tend to embarrass him, as it had happened with too many others, in the discharge of his duty to the public. seduction thus failing of its ends, calumny, menaces, and the height of power were made use of against him. they lost the effect proposed, but had that, which the show of baseness and violence ever produce on a mind truly virtuous. they increased his honest firmness, because they manifested, that the times required more than ordinary exertions of manliness. in consequence of this conduct, mr. adams obtained the highest honours which a virtuous man can receive from the good and the bad. he was honoured with the disapprobation of the governor, who refused his admission into the council of the province; and he met with the applause of his countrymen in general, who sent him to assist at the congress in 1774, in which he was most active, being one of the principal promoters of the famous resolution of the 4th of july, when the colonies declared themselves free and independent states. this step being taken, mr. adams saw the inefficacy of meeting the english commissioners, and voted against the proposition; congress, however, having determined to pursue this measure, sent him, together with dr. franklin and mr. rutledge, to general howe's head quarters. these deputies, leading with them, in a manly way, the hostages which the general had given for their security, marched to the place of conference, in the midst of twenty thousand men ranged under arms. whether this military shew was meant to do honour to the americans, or to give them an high idea of the english force, is not worth enquiry. if its object was to terrify the deputies of congress, it failed; making no more impression on them, than the sudden discovery of elephants did upon certain embassadors of old. the utmost politeness having passed on both sides, the conference ended, as had been foreseen, without any effect. mr. adams having been fifteen months one of the commissioners of the war department, and a principal suggestor of the terms to be offered to france, for forming treaties of alliance and commerce, he was sent to the court of versailles, as one of the ministers plenipotentiary of the united states. after continuing some time invested with this important trust, he returned to america; where he no sooner appeared, than he was called upon by the state of massachusets bay, to assist in forming a system of government, that might establish the rights of all on clear, just, and permanent grounds. he was never employed in a business more agreeable to himself; for, the happiness of his fellow-citizens is his great object. he sought not honour in this arduous undertaking, but it fell ultimately upon _him_. he has gained it all over europe. if he endeavoured to obtain by it the esteem and love of his countrymen, he has succeeded; for they know they are chiefly indebted to him for the constitution of the state of massachusets bay, as it stands at this day. this important business being completed to the satisfaction of all, he came back to europe, with full powers from congress to assist at any conferences which might be opened for the establishment of peace; and had sent him, soon after, other powers to negociate a loan of money for the use of the united states; and to represent them, as their minister plenipotentiary, to their high mightinesses the states general of the united provinces. such important trusts shew, in what estimation he is held by his country; and his manner of executing them, that confidence is well placed. on his arrival in holland, nothing could have been more unpromising to the happy execution of his mission, than were the affairs of that country. the influence of the court of st. james's over a certain set of men, the interest that many had in the funds and commerce of england, and the dread of her power, which generally prevailed throughout the provinces, obliged him to act with the utmost circumspection. unknown, and at first unnoticed, (at least but by a few) he had nothing to do but to examine into the state of things, and characters of the leading men. this necessary knowledge was scarcely acquired, when the conduct of the british ministry afforded him an opportunity of shewing himself more openly. the contempt, insult and violence, with which the whole belgic nation was treated, gave him great advantages over the english embassador at the hague. he served himself of his rivals rashness and folly with great coolness and ability; and, by consequence, became so particularly obnoxious to the prevailing party, that he did not dare to go to a village scarcely a day's journey from his residence, but with the utmost secrecy: the fate of dorislaus was before his eyes. having been therefore under the necessity of making himself a burgher of amsterdam, for protection against the malice of the times, he soon gained the good opinion of the magistrates by his prudent conduct as a private citizen. the bad policy of england, enabled him to step forward as a public character. as such he presented to the states general his famous memorial, dated the 19th of april, 1781, wherein the declaration of the independency of america on the 4th of july, 1776, was justified; the unalterable resolution of the united states to abide thereby asserted; the interest that all the powers of europe, and particularly the states general, have in maintaining it, proved; the political and natural grounds of a commercial connection between the two republics pointed out; and information given that the memorialist was invested with full powers from congress to treat with their high mightinesses for the good of both countries. the presenting this memorial was a delicate step; mr. adams was sensible, that he alone was answerable for its consequences, it being taken not merely from his own single suggestion, but contrary to the opinion and advice of some of great weight and authority. however, maturely considering the measure, he saw it in all its lights, and boldly ventured on the undertaking. the full and immediate effect of it was not expected at once. the first object was, that the nation should consider the matter thoroughly; it being evident, that the more it was ruminated on, the more obvious would be the advantages and necessity of a connection between the two countries. when, therefore, the memorial was taken by the states general _ad referendum_, the first point was gained; the people thought of, and reasoned on the matter set before them; many excellent writings appeared, and they made the greatest impression; a weekly paper in particular, entitled le politique hollandois, drew the attention of all, on account of its information, the soundness of its argument, and its political judgment and patriotism. at length the time came when the work was to be compleated: the generality of the people of holland, seeing the necessity of opening a new course to their trade, which the violent aggression of england, and the commercial spirit of other nations tended to diminish, demanded an immediate connection with the united states of america, as a means of indemnifying themselves for the loss which a declared enemy had brought on them, and the rivalship of neighbouring nations might produce. mr. adams seized the occasion which the public disposition afforded him, and presented his ulteriour address of the 9th of january, 1782; referring therein to his memorial of the 19th of april, 1781, and demanding a categorical answer thereto. the towns, cities, quarters, and states of the several provinces took the whole matter into immediate deliberation, and instructed their several deputies, in the states general, to concur in the admission of mr. adams in quality of minister plenipotentiary of the united states of north america. this was done by a resolution, passed by their high mightinesses the 19th of april, 1782; and on the 22d of the same month, mr. adams was admitted accordingly, with all the usual ceremonies. this event seems to have been as great a blow as any that has been given to the pride and interests of england during the war. it shewed the dutch were no longer over-awed by the power of their enemy, for they dared to brave him to his teeth. it set an example to other nations, to partake of the commerce of those countries, which england had lost by her inconsiderate conduct. it confounded at once the english partisans in holland, and proved that sir joseph yorke was not the great minister he had hitherto been supposed to be. it gave occasion to an ambassador of one of the greatest monarchs of europe to say to mr. adams: _vous avez frappé, monsieur, le plus grand coup de tout l' europe. c'est le plus grand coup, qui à etè frappé dans le cause americain. c'est vous qui à effrayé et terrasse les anglomannes. c'est vous qui à rempli cette nation d'enthousiasme._ and then turning to another gentleman, he said, _ce n'est pas pour faire compliment a monsieur adams, que je dis cela: c'est parcequ'en verité, je crois que c'est sa due._ this diplomatic compliment has been followed by others. i transcribe with pleasure a convivial one contained in the following lines, which an ingenious and patriotic dutchman addressed to his excellency mr. adams, on drinking to him out of a large beautiful glass, which is called a _baccale_, and had inscribed round its brim, _aurea libertas_: aurea libertas! _gaude! pars altera mundi vindice te renuit subdere colla jugo. hæc tibi legatum quem consors belga recepit pectore sincero pocula plena fero. utraque gens nectet, mox suspicienda tyrannis, quæ libertati vincula sacra precor!_ they who have an opportunity of knowing his excellency mr. adams trace in his features the most unequivocal marks of probity and candour. he unites to that gravity, suitable to the character with which he is invested, an affability, which prejudices you in his favour. although of a silent turn, as william the prince of orange was, and most great men are, who engage in important affairs, he has nevertheless a natural eloquence for the discussion of matters which are the objects of his mission, and for the recommending and enforcing the truths, measures, and systems, which are dictated by sound policy. he has neither the corrupted nor corrupting principles of lord chesterfield, nor the qualities of sir joseph yorke, but the plain and virtuous demeanor of sir william temple. like him too he is simple in negociation, where he finds candour in those who treat with him. otherwise he has the severity of a true republican, his high idea of virtue giving him a rigidness, which makes it difficult for him to accommodate himself to those intrigues which european politics have introduced into negociation. "_il sait que l'art de negocier n'est pas l'art d'intriguer et de tromper; quil ne consiste pas à corrompre; à se jouer des sermens et à semer les alarmes et les divisions; qu'un negociateur habile peut parvenir à son but sans ces expediens, qui sont la triste ressource des intriguans, sans avoir recours à des manoeuvres detournès et extraordinaires. il trouve dans la nature même des affaires quil négocie des incidens propres à faire réussir tous ses projéts._" memorial to their high mightinesses the states general of the united provinces of the low countries. _high and mighty lords_; the subscriber has the honour to propose to your high mightinesses, that the united states of america, in congress assembled, have lately thought fit to send him a commission (with full powers and instructions) to confer with your high mightinesses concerning a treaty of amity and commerce, an authentic copy of which he has the honour to annex to this memorial. at the times when the treaties between this republic and the crown of great britain were made, the people, who now compose the united states of america, were a part of the english nation; as such, allies of the republic, and parties to those treaties; entitled to all their benefits, and submitting chearfully to all their obligations. it is true, that when the british administration, renouncing the ancient character of englishmen for generosity, justice, and humanity, conceived the design of subverting the political systems of the colonies; depriving them of the rights and liberties of englishmen, and reducing them to the worst of all forms of government; starving the people by blockading the ports, and cutting off their fisheries and commerce; sending fleets and armies to destroy every principle and sentiment of liberty, and to consume their habitations and their lives; making contracts for foreign troops, and alliances with savage nations to assist them in their enterprise; casting formally, by act of parliament, three millions of people at once out of the protection of the crown: then, and not till then, did the united states of america, in congress assembled, pass that memorable act, by which they assumed an equal station among the nations. this immortal declaration, of the 4th of july, 1776, when america was invaded by an hundred vessels of war, and, according to estimates laid before parliament, by 55,000 of veteran troops, was not the effect of any sudden passion or enthusiasm; but a measure which had been long in deliberation among the people, maturely discussed in some hundreds of popular assemblies, and by public writings in all the states. it was a measure which congress did not adopt, until they had received the positive instructions of their constituents in all the states: it was then unanimously adopted by congress, subscribed by all its members, transmitted to the assemblies of the several states, and by them respectively accepted, ratified, and recorded among their archives; so that no decree, edict, statute, placart, or fundamental law of any nation was ever made with more solemnity, or with more unanimity or cordiality adopted, as the act and consent of the whole people, than this: and it has been held sacred to this day by every state, with such unshaken firmness, that not even the smallest has ever been induced to depart from it; although the english have wasted many millions, and vast fleets and armies, in the vain attempt to invalidate it. on the contrary, each of the thirteen states has instituted a form of government for itself, under the authority of the people; has erected its legislature in the several branches; its executive authority with all its offices; its judiciary departments and judges; its army, militia, revenue, and some of them their navy: and all those departments of government have been regularly and constitutionally organized under the associated superintendency of congress, now these five years, and have acquired a consistency, solidity, and activity equal to the oldest and most established governments. it is true, that in some speeches and writings of the english it is still contended that the people of america are still in principle and affection with them: but these assertions are made against such evident truth and demonstration, that it is surprising they should find at this day one believer in the world. one may appeal to the writings and recorded speeches of the english for the last seventeen years, to shew that similar misrepresentations have been incessantly repeated through that whole period; and that the conclusion of every year has in fact confuted the confident assertions and predictions of the beginning of it. the subscriber begs leave to say from his own knowledge of the people of america, (and he has a better right to obtain credit, because he has better opportunities to know, than any briton whatsoever) that _they are unalterably determined to maintain their independence_. he confesses, that, notwithstanding his confidence through his whole life in the virtuous sentiments and uniformity of character among his countrymen, their unanimity has surprised him. that all the power, arts, intrigues, and bribes which have been employed in the several states, should have seduced from the standard of virtue so contemptible a few, is more fortunate than could have been expected. this independence stands upon so broad and firm a bottom of the people's interests, honour, consciences, and affections, that it will not be affected by any successes the english may obtain either in america, or against the european powers at war, nor by any alliances they can possibly form; if indeed, in so unjust and desperate a cause they can obtain any. nevertheless, although compelled by necessity, and warranted by the fundamental laws of the colonies, and of the british constitution, by principles avowed in the english laws, and confirmed by many examples in the english history; by principles interwoven into the history and public right of europe, in the great examples of the helvetic and belgic confederacies, and many others; and frequently acknowledged and ratified by the diplomatic body; principles founded in eternal justice, and the laws of god and nature, to cut asunder for ever all the ties which had connected them with great britain: yet the people of america did not consider themselves as separating from their allies, especially the republic of the united provinces, or departing from their connections with any of the people under their government; but, on the contrary, they preserved the same affection, esteem and respect, for the dutch nation, in every part of the world, which they and their ancestors had ever entertained. when sound policy dictated to congress the precaution of sending persons to negotiate natural alliances in europe, it was not from a failure in respect that they did not send a minister to your high mightinesses, with the first whom they sent abroad: but, instructed in the nature of the connections between great britain and the republic, and in the system of peace and neutrality, which she had so long pursued, they thought proper to respect both so far, as not to seek to embroil her with her allies, to excite divisions in the nation, or lay embarrassments before it. but, since the british administration, uniform and persevering in injustice, despising their allies, as much as their colonists and fellow-subjects; disregarding the faith of treaties, as much as that of royal charters; violating the law of nations, as they had before done the fundamental laws of the colonies and the inherent rights of british subjects, have arbitrarily set aside all the treaties between the crown and the republic, declared war and commenced hostilities, the settled intentions of which they had manifested long before; all those motives, which before restrained the congress, cease: and an opportunity presents itself of proposing such connections, as the united states of america have a right to form, consistent with the treaties already formed with france and spain, which they are under every obligation of duty, interest and inclination, to observe sacred and inviolate; and consistent with such other treaties, as it is their intention to propose to other sovereigns. if there was ever among nations a natural alliance, one may be formed between the two republics. the first planters of the four northern states found in this country an asylum from persecution, and resided here from the year 1608 to the year 1620, twelve years preceding their migration. they ever entertained and have transmitted to posterity, a grateful remembrance of that protection and hospitality, and especially of that religious liberty they found here, having sought it in vain in england. the first inhabitants of two other states, new-york and new-jersey, were immediate emigrants from this nation, and have transmitted their religion, language, customs, manners and character: and america in general, until her connections with the house of bourbon, has ever considered this nation as her first friend in europe, whose history, and the great characters it exhibits, in the various arts of peace, as well as atchievements of war by sea and land, have been particularly studied, admired and imitated in every state. a similitude of religion, although it is not deemed so essential in this as in former ages to the alliance of nations, is still, as it ever will be thought, a desirable circumstance. now it may be said with truth, that there are no two nations, whose worship, doctrine and discipline, are more alike than those of the two republics. in this particular therefore, as far as it is of weight, an alliance would be perfectly natural. a similarity in the forms of government, is usually considered as another circumstance, which renders alliances natural: and although the constitutions of the two republics are not perfectly alike, there is yet analogy enough between them, to make a connection easy in this respect. in general usages, and in the liberality of sentiments in those momentous points, the freedom of enquiry, the right of private judgment and the liberty of conscience, of so much importance to be supported in the world, and imparted to all mankind, and which at this hour are in more danger from great britain and that intolerant spirit which is secretly fomenting there, than from any other quarter, the two nations resemble each other more than any others. the originals of the two republics are so much alike, that the history of one seems but a transcript from that of the other: so that every dutchman instructed in the subject, must pronounce the american revolution just and necessary, or pass a censure upon the greatest actions of his immortal ancestors: actions which have been approved and applauded by mankind, and justified by the decision of heaven. but the circumstance, which perhaps in this age has stronger influence than any other in the formation of friendships between nations, is the great and growing interest of commerce; of the whole system of which through the globe, your high mightinesses are too perfect masters for me to say any thing that is not familiarly known. it may not, however, be amiss to hint, that the central situation of this country, her extensive navigation, her possessions in the east and west indies, the intelligence of her merchants, the number of her capitalists, and the riches of her funds, render a connection with her very desirable to america: and, on the other hand, the abundance and variety of the productions of america, the materials of manufactures, navigation and commerce; the vast demand and consumption in america of the manufactures of europe, of merchandises from the baltic, and from the east indies, and the situation of the dutch possessions in the west indies, cannot admit of a doubt, that a connection with the united states would be useful to this republic. the english are so sensible of this, that notwithstanding all their professions of friendship, they have ever considered this nation as their rival in the american trade; a sentiment which dictated and maintained their severe act of navigation, as injurious to the commerce and naval power of this country, as it was both to the trade and the rights of the colonists. there is now an opportunity offered to both, to shake off this shackle for ever. if any consideration whatever could have induced them to have avoided a war with your high mightinesses, it would have been the apprehension of an alliance between the two republics: and it is easy to foresee, that nothing will contribute more to oblige them to a peace, than such a connection once completely formed. it is needless to point out, particularly, what advantages might be derived to the possessions of the republic in the west indies from a trade opened, protected and encouraged, between them and the continent of america; or what profits might be made by the dutch east india company, by carrying their effects directly to the american market; or how much even the trade of the baltic might be secured and extended by a free intercourse with america; which has ever had so large a demand, and will have more for hemp, cordage, sail-cloth, and other articles of that commerce: how much the national navigation would be benefited by building and purchasing ships there: how much the number of seamen might be increased, or how much more advantageous it would prove to both countries, to have their ports mutually opened to their men of war and privateers, and to their prizes. if, therefore, an analogy of religion, government, origin, manners, and the most extensive and lasting commercial interests, can form a ground and an invitation to political connections, the subscriber flatters himself that, in all these particulars, the union is so obviously natural, that there has seldom been a more distinct designation of providence to any two distant nations to unite themselves together. it is further submitted to the wisdom and humanity of your high mightinesses, whether it is not visibly for the good of mankind, that the powers of europe, who are convinced of the justice of the american cause, (and where is one to be found that is not?) should make haste to acknowledge the independence of the united states, and form equitable treaties with them, as the surest means of convincing great britain of the impracticability of her pursuits? whether the late marine treaty concerning the rights of neutral vessels, noble and useful as it is, can be established against great britain, who will never adopt it, nor submit to it, but from necessity, without the independence of america? whether the return of america, with her nurseries of seamen and magazines of materials for navigation and commerce, to the domination and monopoly of great britain, if that were practicable, would not put the possessions of other nations beyond seas wholly in the power of that enormous empire, which has been long governed wholly by the feeling of its own power, at least without a proportional attention to justice, humanity, or decency. when it is obvious and certain that the americans are not inclined to submit again to the british government, on the one hand, and that the powers of europe ought not and could not with safety consent to it, if they were so inclined, on the other; why should a source of contention be left open, for future contingencies to involve the nations of europe in still more bloodshed, when, by one decisive step of the maritime powers, in making treaties with a nation long in possession of sovereignty by right and in fact, it might be closed? the example of your high mightinesses would, it is, hoped, be followed by all the maritime powers, especially those which are parties to the late marine treaty: nor can the apprehension that the independence of america would be injurious to the trade of the baltic, be any objection. this jealousy is so groundless that the reverse would happen. the freight and insurance in voyages across the atlantic are so high, and the price of labour in america so dear, that tar, pitch, turpentine, and ship-timber never can be transported to europe at so cheap a rate, as it has been and will be afforded by countries round the baltic. this commerce was supported by the english before the revolution with difficulty, and not without large parliamentary bounties. of hemp, cordage, and sail-cloth there will not probably be a sufficiency raised in america for her own consumption in many centuries, for the plainest of all reasons, because these articles may be imported from amsterdam, or even from petersburg and archangel, cheaper than they can be raised at home. america will therefore be for ages a market for these articles of the baltic trade. nor is there more solidity in another supposition, propagated by the english to prevent other nations from pursuing their true interests, that the colonies of other nations will follow the example of the united states. those powers, who have as large possessions as any beyond seas, have already declared against england, apprehending no such consequences. indeed there is no probability of any other power of europe following the example of england, in attempting to change the whole system of the government of colonies, and reducing them by oppression to the necessity of governing themselves: and, without such manifest injustice and cruelty on the part of the metropolis, there is no danger of colonies attempting innovations. established governments are founded deep in the hearts, the passions, the imaginations and understandings of the people; and without some violent change from without, to alter the temper and character of the whole people, it is not in human nature to exchange safety for danger, and certain happiness for very precarious benefits. it is submitted to the consideration of your high mightinesses, whether the system of the united states, which was minutely considered and discussed, and unanimously agreed on in congress in the year 1776, in planning the treaty they proposed to france, to form equitable commercial treaties with all the maritime powers of europe, without being governed or monopolized by any: a system which was afterwards approved by the king, and made the foundation of the treaties with his majesty: a system to which the united states have hitherto constantly adhered, and from which they never will depart, unless compelled by some powers declaring against them, which is not expected, is not the only means of preventing this growing country from being an object of everlasting jealousies, rivalries, and wars among the nations. if this idea be just, it follows, that _it is the interest of every state in europe to acknowledge american independency immediately_. if such benevolent policy should be adopted, the new world will be a proportional blessing to every part of the old. the subscriber has the farther honour of informing your high mightinesses, that the united states of america, in congress assembled, impressed with an high sense of the wisdom and magnanimity of your high mightinesses, and of your inviolable attachment to the rights and liberties of mankind, and being desirous of cultivating the friendship of a nation, eminent for its wisdom, justice, and moderation, have appointed the subscriber to be their minister plenipotentiary to reside near you, that he may give you more particular assurances of the great respect they entertain for your high mightinesses; beseeching your high mightinesses to give entire credit to every thing, which their said minister shall deliver on their part, especially when he shall assure you of the sincerity of their friendship and regard. the original letter of credence, under the seal of congress, the subscriber is ready to deliver to your high mightinesses, or to such persons as you shall direct to receive it. he has also a similar letter of credence to his most serene highness the prince stadtholder. all which is respectfully submitted to the consideration of your high mightinesses, together with the propriety of appointing some person, or persons, to treat on the subject of his mission, by leyden 19 april 1781. j. adams guelderland. in the assembly of the states of guelderland, holden in october 1781, to consider of the requisition of the king of france, of a negotiation of five millions of florins, under the warranty of the republic, some were for an alliance with france. the baron nagel, seneschal of zutphen, avoided putting of the question, and said among other things, "that he had rather acknowledge the independence of the americans, than contract an alliance with france." the baron van der capellen de marsch was for an alliance with france and america too. he observed, "that nothing being more natural than to act in concert with the enemies of our enemy, it was an object of serious deliberation, to see, if the interest of the republic did not require to accept, without farther tergiversations, the invitations and offers of the americans: that no condescension for england could hinder us, at present, from uniting ourselves against a common enemy, with a nation so brave and so virtuous: a nation, which, after our example, owes its liberty to its valour, and even at this moment is employed in defending itself from the tyranny of the enemy of the two nations: that, consequently, nothing could restrain us from acknowledging the independence of this new republic: that our conduct differed very much from that holden by our ancestors, who allied themselves with the portuguese, as soon as they shook off the yoke of the spaniards: that there was no doubt, that the said alliances with the enemies of our enemy would soon restrain his fury, and operate a general peace advantageous for us." the quarter of oostergo. _the quarter of oostergo, in the province of friesland, in december, 1781, was the first public body which proposed a connection with the united states of america in these words._ every impartial patriot has a long time perceived that, in the direction of affairs relative to this war with england, there have been manifested an inconceivable lukewarmness and sloth; but they discover themselves still more, at this moment, by the little inclination which, in general, the regencies of the belgic provinces testify to commence a treaty of commerce and friendship with the new republic of the thirteen united states of north america; and to contract engagements, at least during the continuance of this common war with the crowns of france and spain. nevertheless, the necessity of these measures appears clearly, since, according to our judgments, nothing was more natural, nor more conformable to sound policy, founded upon the laws of the nature the most precise, than that this republic, immediately after the formal declaration of war by the english (not being yet able to do any thing by military exploits, not being in a state of defence sufficiently respectable to dare, at sea, to oppose one fleet or squadron, to our perfidious enemy) should have commenced by acknowledging, by a public declaration, the independence of north america. this would have been from that time the greatest step to the humiliation of england, and our own re-establishment; and by this measure, the republic would have proved her firm resolution to act with vigour. every one of our inhabitants, all europe, who have their eyes fixed upon us, the whole world expected, with just reason, this measure from the republic. it is true, that before the formal declaration of war by england, one might perhaps have alleged some plausible reason, to justify, in some degree, the backwardness in this great and interesting affair. but, as at present great britain is no longer our secret, but declared enemy, which dissolves all the connections between the two nations; and as it is the duty, not only of all the regencies, but also of all the citizens of this republic, to reduce, by all imaginable annoyances, this enemy so unjust to reason, and to force him, if possible, to conclude an honourable peace; why should we hesitate any longer, to strike, by this measure so reasonable, the most sensible blow to the common enemy? will not this delay occasion a suspicion that we prefer the interest of our enemy to that of our country? north america, so sensibly offended by the refusal of her offer; france and spain, in the midst of a war supported with activity, must they not regard us as the secret friends, and favourers of their and our common enemy? have they not reason to conclude from it, that our inaction ought to be less attributed to our weakness, than to our affection for england? will not this opinion destroy all confidence in our nation heretofore so renowned in this respect? and our allies, at this time natural, must they not imagine, that it is better to have in us declared enemies than pretended friends? and shall we not be involved in a ruinous war, which we might have rendered advantageous, if it had been well directed? while on the other hand it is evident, that by a new connection with the states of north america, by engagements at least during this war with france and spain, we shall obtain, not only the confidence of these formidable powers, instead of their distrust, but by this means we shall moreover place our colonies in safety against any insult; we shall have a well grounded hope, of recovering, with the aid of the allied powers, our lost possessions, if the english should make themselves masters of them; and our commerce at present neglected, and so shamefully pillaged, would reassume a new vigour; considering that in such case, as it is manifestly proved by solid reasons, this republic would derive from this commerce the most signal advantages. but, since our interest excites us forcibly to act in concert with the enemies of our enemy; since the united states of america invited us to it long ago; since france appears inclined to concert her military operations with ours (although this power has infinitely less interest to ally itself with us, whose weakness manifests itself in so palpable a manner, than we have to form an alliance, the most respectable in the universe) it is indubitably the duty of every regency, to promote it with all their forces, and with all the celerity imaginable. to this end, we have thought it our duty, to lay it before your noble mightinesses, in the firm persuasion that the zeal of your noble mightinesses will be as earnest as ours, to concur to the accomplishment of this point, which is for us of the greatest importance; that, consequently, your noble mightinesses will not delay to co-operate with us, that, upon this important subject, there may be made to their high mightinesses, a proposition so vigorous, that it may have the desired success: and that this affair, of an importance beyond all expression for our common country, may be resolved and decided by unanimous suffrages, and in preference to every particular interest. ulteriour address. _on the 9th january, 1782, mr. adams waited on the president van den sandheuvel, and addressed him as follows._ on the fourth of may, i had the honour of a conference with the president of their high mightinesses, in which i informed him, that i had received from the united states of america a commission, with full powers and instructions to propose and conclude a treaty of amity and commerce, between the said united states of america and the united provinces of the netherlands. at the same conference, i had the honour to demand an audience of their high mightinesses, in order to present to them my letters of credence and full powers. the president assured me, that he would make report of all that i had said to him to their high mightinesses, in order that it might be transmitted to the several members of the sovereignty of this country, for their deliberations and decisions.--i have not yet been honoured with an answer. i now do myself the honour to wait on you, sir, to demand, as i do, a categorical answer, that i may be able to transmit it to the united states of america. guelderland. in an extraordinary assembly of the county of zutphen, held at nimeguen the 23d of february, 1782, the following measures were taken. after the report of the committee of this province to the generality, laid this day upon the table, relative to what passed in the precedent assembly, and after the examination of an extract of the register of the resolutions of their high mightinesses the states general of the low countries, of the ninth of last month, in relation to the ulteriour address of mr. adams to the president of their high mightinesses, concerning the presentation of his letters of credence to their high mightinesses, in behalf of the united states of america, demanding a categorical answer, whereof the lords the deputies of the respective provinces have taken copies; the baron robert jasper van der capellen de marsch, first by word of mouth, and afterwards in writing, proposed, and insisted, at the assembly of this quarter, that, at present, and without delay, we should make a point of deliberation, and that we should make upon the table the necessary overture, conceived more at length, in the advice of this nobleman, inserted in these terms: noble and mighty lords! the subscriber judges, upon good grounds, and with out fear of being contradicted, that he is able to affirm, that it is more than time that we should give a serious attention to the offer and the invitation, in every sense honourable and advantageous for this republic, of friendship, and reciprocal connections with the thirteen american provinces, now become free _at the point of the sword_, in such sort, that the categorical answer demanded by their minister mr. adams, may become a subject of the deliberations of your grand mightinesses, and that you may decide as soon as possible, concerning their respective interests. he judges, that he ought not to have any farther scruple in this regard; and that the uncertain consequences of the mediation offered by russia cannot, when certain advantages for this republic are in question, hinder that, out of regard for an enemy, with whom we (however salutary the views of her imperial majesty are represented) cannot make any peace, at the expence of a negligence so irreparable: that a longer delay, to unite ourselves to a nation already so powerful, will have for its consequence, that our inhabitants will lose the means of extending, in a manner the most advantageous, their commerce and their prosperity: that by the vigorous prohibition to import english manufactures into america, our manufactures, by means of precautions taken in time, will rise out of their state of languor: and that, by delaying longer to satisfy the wishes of the nation, her leaders will draw upon them the reproach of having neglected and rejected the favourable offers of providence: that, on the contrary, by adopting these measures, the essential interests of this unfortunate people will be taken to heart. the subscriber declaring, moreover, that he will abandon this unpardonable negligence of an opportunity favourable for the republic, to the account of those whom it may concern; protesting against all the fatal consequences that a longer refusal of these necessary measures will certainly occasion: whereupon he demanded, that for his discharge, this note should be inserted in the registers of the quarter. _signed_ r. j. van der capellen. this advice having been read, mr. jacob adolf de heekeren d'enghuisen, counsellor and first master of accounts in guelderland, president at this time of the assembly of the quarter, represented to the said robert jasper van der capellen de marsch, that "although he must agree to the justice of all that he had laid down, besides several other reasons, equally strong, which occurred to his mind, the deliberation upon the point in question appeared to him premature, considering that the lords the states of holland and west friesland, and of zealand, as the principal commercial provinces, who are directly interested, had not nevertheless as yet explained themselves in this regard; consequently that it would not be so convenient for the states of this duchy and county, who are not interested in it, but in a consequential and indirect manner, to form the first their resolutions in this respect: for this reason he proposed to consideration, whether it would not be more proper to postpone the deliberations upon this matter to a future opportunity." nevertheless, the before-mentioned robert jasper van der capellan de marsch insisting, that the voices should be collected upon the proposition and advice in question, and thereupon having deliberated, their noble mightinesses have thought fit to resolve, that although the motives alledged by this nobleman in his advice, appear to merit a serious consideration, nevertheless, for the reasons before alleged, they judge, that they ought to suspend the decision of it, until the commercial provinces have formed their resolutions concerning it: and that, upon the requisition of robert jasper van der capellan de marsch, there be delivered to him an extract of the present, upon one as well the other. _signed_ herm. schomaker. petition of leyden. to the noble, great, and venerable lords of the grand council of the city of leyden. the undersigned, all manufacturers, merchants, and other traders of this city, most respectfully give to understand, that it is a truth, as melancholy, as it is universally known, that the declension of manufactures, which all the well-disposed citizens have remarked with the most lively grief, from the beginning of this century, has increased more and more for several years; and that this principal branch of the subsistence of the good citizens, has fallen into such a state of languor, that our city, once so flourishing, so populous, so celebrated, on account of its commerce and of its trades, appears to be threatened with total ruin; that the diminution of its merchants houses, on the one hand, and on the other, a total loss, or the sensible decrease of several branches of commerce, furnish an evident proof of it; which the petitioners could demonstrate by several examples, if there were need of them to convince. your noble and grand lordships, to whom the increase of the multitude of the poor, the deplorable situation of several families, heretofore in easy circumstances, the depopulation of the city, which one cannot observe without emotion in the ruins of several streets, once neat and well inhabited, are fully known, will recollect no doubt upon this occasion, with grief, that this state of languor must appear so much the more desperate, if your noble and grand lordships will take into consideration, that in this decay of trades and manufactures, we find a new reason of their farther fall, considering, that from the time there is not continual employment, and an uninterrupted sale, the workmen desert in such manner, that when considerable commissions arrive, we cannot find capable hands, and we see ourselves entirely out of a condition to execute these orders. that the petitioners, with all the true friends of their country, extremely affected with this alarming situation of so rich a source of the public prosperity, have indeed sought the means of a remedy, in amending some defects, from which it seemed to arise, at least in part; but that the measures taken in this view, as is well know to your noble and grand lordships, have not had the desired effect; at least, that they have not produced a re-establishment so effectual, that we have been able to observe a sensible influence in the increase of the sales of the manufactures of leyden, as appears most evidently, by a comparison of the pieces fabricated here, which have been heretofore carried to the divers markets of this city, with those which are carried there at this day; a comparison which a true citizen cannot of consider without regret. that experience has also taught the petitioners, that the principal cause of the decay of the manufactures of holland, particularly those of leyden, is not to be found in any internal vice, either in the capacity, or the oeconomy of the inhabitants, but in circumstances which have happened abroad; and to which it is, consequently, beyond the power of the petitioners, or of any citizen whatsoever, to provide a remedy. that we might cite, for example, the commerce of our manufactures with dantzic; and, through that commercial city, with all poland; a commerce which was carried on with success and advantage heretofore in our city, but is absolutely interrupted at this day, and vanished, by the revolution which has happened in that kingdom, and by the burthensome duties to which the navigation of the vistula has been subjected. but that, without entering into a detail of similar particular shackles, of which we might reckon a great number; the principal cause of the languishing state of our manufactures consists in the jealous emulation of the neighbouring nations, or rather of all the people of europe; considering that, in this age, the several princes and governments, enlightened in the real sources of the public prosperity, and the true interests of their subjects, attach themselves with emulation to revive in their kingdoms and states the national industry, commerce, and navigation; to encourage them, and promote them even by exclusive privileges, or by heavy impositions upon foreign merchandizes; privileges and impositions, which tend equally to the prejudice of the commerce and the manufactures of our country, as your noble and grand lordships will easily recollect the examples in the austrian states and elsewhere. that in the midst of these powers and nations, emulous or jealous, it is impossible for the citizens of our republic, however superior their manufactures may be in quality and fineness, to resist a rivalry so universal; especially considering the dearness of labour, caused by that of the means of subsistence; which, in its turn, is a necessary consequence of the taxes and imposts which the inhabitants of this state pay in a greater number, and a higher rate, than in any other country, by reason of her natural situation, and of its means to support itself; so that by the continual operation of this principal, but irreparable cause of decline, it is to be feared, that the impoverishment and the diminution of the good citizens increasing with the want of employment, the dutch nation, heretofore the purveyor of all europe, will be obliged to content itself with the sale of its own productions in the interior of the country; (and how much does not even this resource suffer by the importation of foreign manufactures?) and that leyden, lately so rich and flourishing, will exhibit desolated quarters in its declining streets; and its multitude, disgraced with want and misery; an affecting proof of the sudden fall of countries formerly overflowing with prosperity. that, if we duly consider these motives, no citizen, whose heart is upright, (as the petitioners assure themselves) much less your noble and grand lordships, whose good dispositions they acknowledge with gratitude, will take it amiss, that we have fixed our eyes on the present conjuncture of affairs, to enquire whether these times might not furnish them some means of reviving the languishing manufactures of leyden; and that after a consideration well matured, they flatter themselves with the hope (a hope which unprejudiced men will not regard as a vain chimera) that in fact, by the present circumstances, there opens in their favour an issue for arriving at the re-establishment desired. that from the time when the rupture between great britain and the colonies upon the continent of north america appeared to be irreparable, every attentive spectator of this event perceived, or at least was convinced, that this rupture, by which there was born a republic, as powerful as industrious, in the new world, would have the most important consequences for commerce and navigation; and that the other commercial nations of europe would soon share in a very considerable commerce, whereof the kingdom of great britain had reserved to itself, until that time, the exclusive possession by its act of navigation, and by the other acts of parliament prescribed to the colonies; that in the time of it, this reflection did not escape your petitioners; and they foresaw, from that time, the advantage which might arise, in the sequel, from a revolution so important for the united provinces in general, and for their native city in particular. but that they should have been afraid to have placed this favourable occasion before the eyes of your noble and grand lordships, at an epoch when the relations which connected our republic with great britain, her neighbour, seemed to forbid all measures of this nature, or at least ought to make them be considered as out of season. that, in the mean time, this reason of silence has entirely ceased, by the hostilities which the said kingdom has commenced against our republic, under pretences, and in a manner the injustice of which has been demonstrated by the supreme government of the state, with an irrefragable evidence, in the eyes of impartial europe; whilst the petitioners themselves, by the illegal capture of so large a number of dutch ships, and afterwards by the absolute stagnation of navigation, and of voyages to foreign countries, have experienced in the most grievous manner, the consequences of this hostile and unforeseen attack, and feel them still every day, as is abundantly known to your noble and grand lordships. that since that epoch, a still more considerable number of workmen must have remained without employment, and several fathers of families have quitted the city, abandoning, to the farther expense of the treasury of the poor, their wives and their children plunged in misery. that during this rupture, which has subsisted now for fifteen months, there has occurred another circumstance, which has encouraged the petitioners still more, and which to them appears to be of such a nature, that they would be guilty of an excessive indifference, and an unpardonable negligence towards the city, towards the lower class of inhabitants, towards their own families, and towards themselves, if they should delay any longer to lay open their interests to your noble and grand lordships, in a manner the most respectful, but the most energetic; to wit, that the united states of america have very rigorously forbidden, by a resolution of congress, agreed to in all the thirteen states, the importation of all english manufactures, and in general, all the merchandizes fabricated in the dominions which yet remain to great britain. that the effect of this prohibition must necessarily be a spirit of emulation between all the commercial nations to take place of the british merchants and manufacturers in this important branch of exportation, which is entirely cut off from them at this day. that nevertheless, among all the nations there is none which can entertain a hope, better founded, and more sure, in this respect, than the citizens of this free republic, whether on account of the identity of religion, the fashion of living, and the manners, whether because of the extent of its commerce, and the convenience of its navigation, but above all, by reason of the activity and good faith, which still distinguishes (without boasting too much) the dutch nation above all other people; qualities in consideration of which, the citizens of united america are inclined even at present, to prefer, in equal circumstances, the citizens of our free states, to every other nation. that, nevertheless, all relations and connections of commerce between the two people, cannot but be uncertain and fluctuating, as long as their offers and reciprocal engagements are not fixed and regulated by a treaty of commerce. that at this day, if ever, (according to the respectful opinion of the petitioners) there exists a necessity the most absolute for the conclusion of a similar treaty of commerce, there, where we may say with truth, that there arises for the republic, for our leyden especially, a moment, which once escaped, perhaps never will return; since the national assembly of great britain, convinced, by a terrible and fatal experience, of the absolute impossibility of re-attaching united america to the british crown, has laid before the throne its desire to conclude a necessary peace with a people, free as this day at the price of their blood: so that if this peace should be once concluded, the dutch nation would see itself perhaps excluded from all advantages of commerce with this new republic, or at least would be treated by her with an indifference, which the small value which we should have put upon its friendship in former times, would seem to merit. that, supposing, for a moment, that a peace between england and united america were not so near as we have reason to presume, not without probability, there would be found in that case nations enough who will be jealous of acquiring, after the example of france, the earliest right to commerce with a country, which already peopled by several millions of inhabitants, augments every day in population, in a manner incredible; but, as a new people, unprovided as yet with several necessary articles, will procure a rich, even an immense outlet, for the fabricks and manufactures of europe. that, however manifest the interest which the petitioners and all the citizens of leyden would have in the conclusion of such a treaty of commerce, they would however have made a scruple to lay before the paternal eyes of your noble and grand lordships the utility, or rather the necessity of such a measure, in respect to them, if they could believe, that their particular advantage would be, in any wise, contrary to the more universal interests of all the republic. but, as far as the petitioners may judge, as citizens, of the situation, and the political existence of their country, they are ignorant of any reasons of this kind: but, on the contrary, they dare appeal to the unanimous voice of their fellow-citizens, well intentioned, in the other cities and provinces, even of the regents the most distinguished; since it is universally known that the province of friesland has already preceded the other confederates, by a resolution for opening negotiations with america; and that in other provinces, which have an interest less direct in commerce and manufactures, celebrated regents appear to wait merely for the example of the commercial provinces, for taking a similar resolution. that the petitioners will not detain the attention of your noble and grand mightinesses by a more ample detail of their reasons and motives, since, on one hand, they assure themselves, that these reasons and motives will not escape the enlightened and attentive judgment of your grand and noble lordships; and on the other, they know by experience, that your grand and noble lordships are disposed not to suffer any occasion to pass for promoting the well-being of their city, for advancing the prosperity of the citizens, to render their names dear to their contemporaries, and make them blessed by posterity. in which firm expectation, the petitioners address themselves to this grand council with the respectful but serious request, that it may please your noble and great lordships, to direct, by their powerful influence, thing in such sort, that, in the assembly highly respected of their noble and grand mightinesses the lords the states of holland and west friesland, there be opened deliberations, or if already opened, carried as speedily as possible to an effectual conclusion, such as they shall find the most proper for obtaining the lawful end, and fulfilling the desires of the petitioners, or as they shall judge conformable to the general interest. so doing, &c. leyden. _an address of thanks, with a farther petition_. to the noble, great, and venerable lords, the great council of the city of leyden, the undersigned manufacturers, merchants, and other traders, interested in the manufactures and fabrics of this city, give respectfully to understand, that a number of the undersigned, having taken, the 18th of march, the liberty to present to your noble and great lordships, a respectful request to obtain the conclusion of connections of commerce with united america, "the petitioners judge that they ought to hold it for a duty, as agreeable as indispensible, to testify their sincere gratitude, not only for the gracious manner in which your noble and great lordships have been pleased to accept that request, but also for the patriotic resolution that your noble and great lordships have taken upon its object; a resolution, in virtue of which the city of leyden (as the petitioners have the best reasons to suppose) hath been one of the first cities of this province, from whose unanimous co-operation has originated the resolution of their noble and grand mightinesses, of the date of the 28th of march last, to direct things on the part of their noble and grand mightinesses, in the assembly of the states general, and to make there the strongest instances, to the end that mr. adams may be admitted and acknowledged as minister of the united states of america." that the petitioners regard, with all honest-hearted citizens, the present epoch as one of the most glorious in the annals of our dear country, seeing that there has been manifested, in a most signal manner, on the one hand, a confidence the most cordial of the good citizens towards their regents, and on the other hand a paternal attention and deference of the regents to the respectful but well-founded prayers of their faithful citizens; and, in general, the most exemplary unanimity throughout the whole nation, to the confusion of those who, having endeavoured to sow the seeds of discord, would have rejoiced if they could say, with truth, that a dissention so fatal had rooted itself to the ruin of the country and of the people. that the petitioners, feeling themselves penetrated with the most pleasing emotions, by an harmony so universal, cannot pass over in silence the reflection that your noble and great lordships, taking a resolution the most favourable upon the said request, have discovered thereby, that they would not abandon the footsteps of their ancestors, who found, in the united sentiments of magistrates and citizens, the resources necessary to resist a powerful oppressor, who even would not have undertaken that difficult, but glorious task, if they had not been supported by the voice of the most respectable part of the nation. that encouraged by this reflection, the petitioners assure themselves, that your noble and great lordships will honour, with the same approbation, the step which they take to day, to recommend to your noble and great lordships, in a manner the most respectful, but at the same time the most pressing, the prompt and efficacious execution of the aforesaid resolution of their noble and grand mightinesses of the 28th of march last, with every thing which depends thereon; a proceeding which does not spring from a desire, on the part of the petitioners, to raise themselves above the sphere of their duties and vocations, or to interfere, indiscreetly, in the affairs of government, but only from a conviction that it cannot but be agreeable to well intentioned regents (such as your noble and great lordships have shewn yourselves by deeds to your good citizens) to see themselves applauded in their salutary efforts and patriotic designs, and supported against the perverse views, and secret machinations of the ill-disposed, who, however small their number, are always found in a nation. that although the petitioners may be convinced that their noble and grand mightinesses, having taken a resolution so agreeable to all true patriots, will not neglect to employ means to carry it to an efficacious conclusion among the other confederates, and to procure to the good citizens the real enjoyment of the commerce with united america, they cannot, nevertheless, dissemble that, lately, some new reasons have arisen, which make them conceive some fears respecting the prompt consummation of this desirable affair. that the probability of an offer of peace, on the part of great-britain, to united america, whereof the petitioners made mention in their former request, having at present become a full certainty by the revolution arrived since in the british ministry, they have not learned without uneasiness the attempt made, at the same time, by the new ministers of the court of london, to involve this state in a negociation for a separate peace, the immediate consequence of which would be (as the petitioners fear) a cessation of all connections with the american republic, whilst that in the mean time our republic, deprived on the one hand of the advantages which it reasonably promises itself from these connections, might, on the other hand, be detained by negociations, spun out to a great length, and not effect till late, perhaps after the other belligerent powers, a separate peace with england. that, in effect, the difficulties which oppose themselves to a like partial pacification are too multiplied for one to promise himself to see them suddenly removed, such as the restitution of the possessions taken from the state, and retaken from the english by france, a restitution which is become thereby impracticable, the indemnification of the immense losses that the unexpected and perfidious attack of england hath caused to the dutch nation in general, to the petitioners in particular; the assurance of a free navigation for the future, upon the principles of the armed neutrality, and conformably to the law of nations; the dissolution of the bonds which, without being productive of any utility to the two nations, have been a source of contestations, always springing up, and which, in every war between great-britain and any other power, have threatened to involve our republic in it, or have in effect done it; the annihilation, if possible, of the act of navigation, an act which carries too evident marks of the supremacy affected by england over all other maritime people, not to attract attention at the approaching negociation of peace; finally, the necessity of breaking the yoke that great-britain would impose on our flag, to make her's respected in the northern ocean, as the seat of her maritime empire; and other objects of this nature, which, as the petulant proceedings of the court of london have given rise to them, will certainly furnish matter for claims and negociations. that as, by these considerations, a speedy consummation of a separate peace with england is out of all probability, especially when one compares with them the dubious and limited manner in which it is offered; on the other hand, a general peace appears not to be so far distant, as that to obtain a more prompt reconciliation with england, the republic hath occasion to abandon its interests relative to north america, seeing that the british government hath resolved, upon the request of the national assembly, even to discontinue offensive hostilities against the new republic; and that, even under the present administration of the new ministers, it appears ready to acknowledge positively its independence; an acknowledgment which, in removing the principal stumbling block of a negociation of a general peace, will pave the way to a prompt explication of all the difficulties between the belligerent powers. that the petitioners should exceed much the bounds of their plan, if they entered into a more ample detail of the reasons which might be alleged upon this subject, and which certainly will not escape the political penetration of your noble and great lordships; among others, the engagements recently entered into with the court of france, and which will not be violated by our republic, which acknowledges the sanctity of its engagements, and respects them: but which will serve much rather to convince the empress of russia of the impossibility of entering, in the present juncture of affairs, into such a negociation as the court of london proposes, when even it will not be permitted to presume but that sovereign will feel herself the change of circumstances which have happened with regard to america since the offer of her mediation, by the revolution in the british ministry, and that she ought even to regard a separate peace between our state and england, as the most proper mean to retard the general tranquillity, that she hath endeavoured to procure to all the commercial nations now in war. that from these motives the petitioners respectfully hope that the aforesaid offer of england will occasion no obstacle which may prevent that the resolution of their noble and grand mightinesses to acknowledge the independence of north america, and to conclude with that power a treaty of commerce, may not have a prompt execution, nor that even one only of the other confederates will suffer itself to be diverted thereby from the design of opening unanimously with this province, and the others which have declared themselves conformably with holland, negociations with the united states, and of terminating them as soon as possible. that the favourable resolutions already taken for this effect in zealand, utrecht, overyssel, and at present (as the petitioners learn) in the province of groningen after the examples of holland and friesland, confirm them in that hope, and seem to render entirely superfluous, a request that, in every other case, the petitioners would have found themselves obliged to make with the commercial citizens of the other cities, to the end that, by the resistance of one province, not immediately interested in commerce and navigation, they might not be deprived of the advantages and of the protection, that the sovereign assembly of their proper provinces had been disposed to procure them, without it; but that, to the end to provide for it, their noble and grand mightinesses, and the states of the other provinces in this respect, unanimous with them, should make use of the power which belongs to each free state of our federative republic; at least in regard to treaties of commerce, of which there exists an example in 1649, not only in a treaty of redemption of the toll of the sound, but also in a defensive treaty concluded with the crown of denmark, by the three provinces of guelderland, holland, and friesland. but as every apprehension of a similar dissension, among the members of the confederation, appears at present absolutely unseasonable, the petitioners will confine themselves rather to another request, to wit, that after the formation of connections of commerce with north america, the effectual enjoyment of it may be assured to the commercial citizens of this country, by a sufficient protection of their navigation; without which the conclusion even of such a treaty of commerce would be absolutely illusory. that, for a long time, especially the last year, the petitioners have tasted the bitter fruits of the defenceless state in which the dutch flag has been incessantly found; as they have already said, conformably to the truth, in their first request, "that by the total stagnation of the navigation, and of expeditions, they have felt, in the most painful manner, the effects of the hostile and unexpected attack of great britain, and that they feel them still every day." that, in the mean time, this stagnation of commerce, absolutely abandoned to the rapacity of an enemy greedy of pillage, and destitute of all protection whatever, hath appeared to the petitioners, as well as to all the other commercial inhabitants; yes! even to all true citizens, so much the more hard and afflicting, as they not only have constantly contributed, with a good heart, to all the public imports, but that, at the time even that the commerce was absolutely abandoned to itself, and deprived of all safeguard, it supported a double charge to obtain that protection which it hath never enjoyed; seeing that the hope of such a protection (the republic not being entirely without maritime force) hath appeared indeed more than once, but always vanished in the most unexpected manner, by accidents and impediments, which, if they have given rise, perhaps wrongfully, to discontent and to distrust among the good citizens, will not nevertheless be read and meditated by posterity without surprize. that, without intention to legitimate, in any manner, the suspicions arising from this failure of protection, the petitioners believe themselves, nevertheless, with all proper respect, warranted in addressing their complaints on this head, to the bosoms of your noble and great lordships, and (seeing that the commerce with north america cannot subsist without navigation, no more than navigation without a safeguard) in reckoning upon the active direction, the useful employment, and prompt augmentation of our naval forces, in proportion to the means which shall be the most proper effectually to secure to the commerce of this republic the fruits of its connections with united north america. for which reasons, the petitioners, returning their solemn thanks to your noble and great lordships, for the favourable resolution taken upon their request the 18th of march last, address themselves anew to you on this occasion, with the respectful prayer, "that it may graciously please your noble and great lordships to be willing to effectuate by your powerful influence, whether in the illustrious assembly of their noble and grand mightinesses, whether among the other confederates, or elsewhere, there, and in such manner, as your noble and great lordships shall judge most proper, that the resolution of their noble and grand mightinesses of the date of the 28th of march last, for the admission of mr. adams, in quality of minister of the united states of america, be promptly executed; and that the petitioners, with the other commercial citizens, obtain the effectual enjoyment of a treaty of commerce with the said republic, as well by the activity of the marine of the state, and the protection of commerce and navigation, as by all other measures, that your noble and great lordships with the other members of the sovereign government of the republic, shall judge to tend to the public good, and to serve to the prosperity of our dear country, as well as to the maintenance of its precious liberties." _so doing, &c._ rotterdam. _petition of the merchants, insurers, and freighters of rotterdam to the regency of that city_. give to understand, in the most respectful manner, that it is sufficiently notorious that the inhabitants of this republic have, as well as any other nation, an interest, that they give us an opportunity to open a free communication and correspondence with the inhabitants of america, by making a treaty of commerce, as mr. adams has represented in his memorial; to which they add, that the advantages which must result from it, are absolutely the only means of reviving the fallen commerce of this country; for re-establishing the navigation, and for repairing the great damages which the perfidious proceedings of the english have, for so many years, caused to the commercial part of this country. that with all due respect, they represent to the venerable regency the danger we run, in prolonging farther the deliberations concerning the article of an alliance of commerce with north america; being moreover certain that the interposition of this state cannot add any thing more to the solidity of its independence, and that the english ministry has even made to the deputies of the american congress propositions to what point they would establish a correspondence there, to our prejudice, and thereby deprive the inhabitants of this country of the certain advantages which might result from this reciprocal commerce; and that thus we ought not to delay one day, nor even one hour, to try all the efforts, that we may pursue the negociation offered by mr. adams, and that we may decide finally upon it. whereupon the petitioners represent, with all respect possible, but at the same time with the firmest confidence, to the venerable regency of this city, that they would authorize and qualify the lords theirs deputies at the assembly of their noble and grand mightinesses, to the end, that they insist in a manner the most energetic, at the assembly of their noble and grand mightinesses, that the resolution demanded may be taken without the least delay, to the end that, on the part of this province, it be effected, at the assembly of the states general, that the american minister, mr. adams be as soon as possible admitted to the audience which he has demanded, and that they take with him the determinations necessary to render free and open to the reciprocal inhabitants, the correspondence demanded. _so doing, &c._ _the petitions of the merchants, and manufacturers of haerlem, leiden, and amsterdam, which have been presented, on the twentieth of march, to their high mightinesses, were accompanied with another to the states of holland and west friesland, conceived in these terms._ the subscribers, inhabitants of this country, merchants, manufacturers, and others, living by commerce, give with all respect to understand, that they have the honour to annex hereto a copy of a petition presented by them to their high mightinesses, the states-general of the united low countries. the importance of the thing which it contains, the considerable commerce which these countries might establish in north america, the profits which we might draw from it, and the importance of industry and manufactures, by the relation which they have with commerce in general, as well as the navigation to that extensive country; all these objects have made them take the liberty to represent, in the most respectful manner, this great affair for them, and for the connections which the petitioners may have, in quality of manufacturers, with the merchants, most humbly praying your noble and grand mightinesses, for the acquisition of these important branches of commerce, and for the advantage of all the manufactures, and other works of labour and of traffic, to be so good as to take this petition, and the reasons which it contains, into your high consideration, and to favour it with your powerful support and protection, and by a favourable resolution, which may be taken at the assembly of their high mightinesses, to direct, on the part of this province, things in such a manner, that for obtaining this commerce so desired and so necessary for this republic, that there be concerted such efficacious measures, as the high wisdom and patriotic sentiments of your noble and grand mightinesses may find convenient, for the well-being of so great a number of inhabitants, and for the prejudice of their enemies. _so doing, &c._ dordrecht. at dordrecht there has not been presented any petition. but on the twentieth of march, the merchants, convinced by redoubled proofs of the zeal, and of the efforts of their regency, for the true interests of commerce, judged it unnecessary to present a petition after the example of the merchants of other cities. they contented themselves with testifying verbally their desire that there might be contracted connections of commerce with the united states of america: that this step had been crowned with such happy success, that the same day 20th of march, 1782, it was resolved, by the ancient council, to authorize their deputies, at the assembly of holland, to concur in every manner possible, that, without delay, mr. adams be acknowledged in his quality of minister plenipotentiary; that his letters of credence be accepted; and conferences opened upon this object. zwoll in overyssel. the subscribers, all merchants, manufacturers, and factors of the city of zwoll, give respectfully to understand, that every one of them, in his private concerns, finds by experience, as well as the inhabitants of the republic in general, the grievous effects of the decay into which commerce, and the manufactures of this country are fallen, little by little, and above all, since the hostile attack of the kingdom of england against this state; that it being their duty to their country, as well as to themselves, to make use of all the circumstances which might contribute to their re-establishment, the requisition made not long since by mr. adams to the republic, to wit, to conclude a treaty of commerce with the united states of north america, could not escape their attention; an affair, the utility, advantage, and necessity of which, for these provinces, are so evident, and have been so often proved in an incontestible manner, that the petitioners will not fatigue your noble lordships, by placing them before you, nor the general interests of this city, nor the particular relations of the petitioners, considering that they are convinced, in the first place, that england making against the republic the most ruinous war, and having broken every treaty with her, all kind of complaisance for that kingdom is unseasonable. in the second place, that america, which ought to be regarded as become free at the point of the sword, and as willing, by the prohibition of all the productions and manufactures of england, to break absolutely with that kingdom; it is precisely the time, and perhaps the only time, in which we may have a favourable opportunity to enter into connection with this new and powerful republic; a time which we cannot neglect without running the greatest risque of being irrevocably prevented by the other powers, and even by england. thus we take the liberty respectfully to supplicate your noble lordships, that, having shewn, for a long time, that you set a value upon the formation of alliances with powerful states, you may have the goodness, at the approaching assembly of the nobility, and of the cities forming the states of this province, to redouble your efforts, to the end that, in the name of this country, it may be decided at the generality, that mr. adams be acknowledged, and the proposed negotiations opened as soon as possible. so doing, &c. petition of amsterdam. to their high mightinesses, the states general of the united provinces, the undersigned, merchants, manufacturers, and others, inhabitants living by commerce in this country, give respectfully to understand: that, although the petitioners have always relied, with entire confidence, upon the administration and the resolutions of your high mightinesses, and it is against their inclinations to interrupt your important deliberations, they think, however, that they ought, at this time to take the liberty; and believe as well intentioned inhabitants, that it is their indispensible duty in the present moment, which is most critical for the republic, to lay humbly before your high mightinesses their interests. what good citizen in the republic, having at heart the interest of his dear country, can dissemble, or represent to himself without dismay, the sad situation to which we are reduced by the attack, equally sudden, unjust, and perfidious of the english? who would have dared two years ago to foretell, and, notwithstanding the dark clouds which even then began to form themselves, could even have imagined that our commerce and our navigation, with the immense affairs which depend upon them, the support and the prosperity of this republic, could have fallen and remained in such a terrible decay? that in 1780, more than two thousands of dutch vessels having passed the sound, not one was found upon the list in 1781? that the ocean, heretofore covered with our vessels, should see at present scarcely any? and that we may be reduced to see our navigation, formerly so much respected and preferred by all the nations, pass entirely into the hands of other powers? it would be superfluous to endeavour to explain at length the damages, the enormous losses, which our inhabitants have sustained by the sudden invasion and the pillage of the colonies, and of their ships; disasters, which not only fall directly upon the merchant, but which have also a general influence, and make themselves felt in the most melancholy manner, even by the lowest artisans and labourers, by the languor which they occasion in commerce. but, how great soever they may be, it might, perhaps, be possible, by the aid of the paternal cares of your high mightinesses, and by opposing a vigorous resistance to the enemy, already enervated, to repair in time all these losses, (without mentioning indemnifications) if this stagnation of commerce was only momentary, and if the industrious merchant did not see beforehand the sources of his future felicity dried up. it is this gloomy foresight which, in this moment, afflicts, in the highest degree, the petitioners; for, it would be the height of folly and inconsideration to desire still to flatter ourselves, and to remain quiet, in the expectation that, after the conclusion of the peace, the business, at present turned out of its direction, should return entirely into this country; for experience shews the contrary in a manner the most convincing; and it is most probable, that the same nations, who are actually in possession of it, will preserve, at that time, the greatest part of it. your alarmed petitioners throw their eyes round every where, to discover new sources, capable of procuring them more success, in future. they even flatter themselves that they have found them upon the new theatre of commerce which the united states of america offer them; a commerce, of which, in this moment, but in this moment only, they believe themselves to be in a condition to be able to assure to themselves a good share; and the great importance of which, joined to the fear of seeing escape from their hands this only and last resource, has induced them to take the resolution to lay open respectfully their observations concerning this important object to your high mightinesses, with the earnest prayer that you would consider them with a serious attention, and not interpret in ill part this measure of the petitioners, especially as their future well-being, perhaps even that of the whole republic, depends on the decision of this affair. no man can call in question that england has derived her greatest forces from her commerce with america; those immense treasures, which that commerce has poured into the coffers of the state; the uncommon prosperity of several of her commercial houses, the extreme reputation of her manufactures, the consumption of which, in quantities beyond all bounds, contributes efficaciously to their perfection, are convincing proofs of it. however it may be, and notwithstanding the supposition, too lightly adopted, that we cannot imitate the british manufactures, the manufacture of painted linens of rouen; those of wool of amiens, of germany, of overyssel; and the pins of zwoll prove visibly that all things need not be drawn from england; and that, moreover, we are as well in a condition, or shall soon be, to equal them in several respects. permit us, high and mighty lords, to the end to avoid all further digression, to request in this regard the attention of your high mightinesses to the situation of commerce in france at the beginning of the war. continual losses had almost ruined it altogether. like ours, several of her merchants failed of capitals; and others wanted courage to continue their commerce; her manufactures languished; the people groaned; in one word, every thing there marked out the horrors of war. but, at present, her maritime towns, overpeopled, have occasion to be enlarged; her manufactures, having arrived at a degree of exportation unknown before, begin to perfect themselves more and more, in such a degree, that the melancholy consequences of the war are scarcely felt in that kingdom. but, since it is incontestible that this favourable alteration results almost entirely from its commerce with america, that even this has taken place in time of war; which, moreover, is ever prejudicial, we leave it to the enlightened judgment of your high mightinesses to decide, what it is that we may expect from a commerce of this nature, even at present, but especially in time of peace. in the mean time, we have had the happiness to make a trial, of short duration it is true, but very strong in proportion to its continuance, in our colony of st. eustatia, of the importance of the commerce, though not direct, with north america. the registers of the west india company may furnish proofs of it very convincing to your high mightinesses; in fact, their productions are infinitely suitable to our market; whilst, on our side, we have to send them several articles of convenience and of necessity from our own country; or from the neighbouring states of germany. moreover, several of our languishing manufactures, scattered in the seven united provinces, may perhaps be restored to their former vigour, by means of bounties, or the diminution of imposts. the importance of manufactures for a country is sufficiently proved, by the considerable gratifications promised and paid by british policy for their encouragement, and by the advantages which that kingdom has procured to itself by this means, even beyond what had been expected. the petitioners know perfectly well the obstacles, almost insurmountable, which always oppose themselves to the habitual use of new manufactures, although certainly better in quality; and they dare advance, without hesitation, that several of our manufactures are superior to those of the english. a moment more favourable can never offer itself than the present, when, by a resolution of congress, the importation of all the effects of the produce of great britain, and of her colonies, is forbidden; which reduces the merchant and the purchaser to the necessity of recurring to other merchandises, the use of which will serve to dissipate the prejudice conceived against them. it is not only the manufactures, high and mighty lords, which promise a permanent advantage to our republic. the navigation will derive also great advantages; for it is very far from being true (as several would maintain) that the americans, being once in the tranquil possession of their independence, would themselves exercise with vigour these two branches; and that in the sequel, we shall be wholly frustrated of them. whoever has the least knowledge of the country of america, and of its vast extent, knows that the number of inhabitants is not there in proportion. that even the two banks of the mississippi, the most beautiful tract of this country, otherwise so fertile, remain still uncultivated; and as there are wanted so many hands, it is not at all probable to presume, that they will or can occupy themselves to establish new manufactures, both because of the new charges, which they would put upon the augmentation and exportation of their productions. it is then for these same reasons (the want of population) that they will scarcely find the hands necessary to take advantage of the fisheries, which are the property of their country; which will certainly oblige them to abandon to us the navigation of freight. there is not therefore any one of our provinces, much less any one of our cities, which cannot enjoy the advantage of this commerce: no, high and mighty lords, the petitioners are persuaded that the utility and the benefit of it will spread itself over all the provinces and countries of the generality. guelderland and overyssel cannot too much extend their manufactures of wool, of swanskin, and other things; even the shoemakers of the mayoralty, and of langstret, will find a considerable opening; almost all the manufactures of utrecht and of leyden will flourish anew. harlem will see revive its manufactures of stuffs, of laces of ribbons, of twist, at present in the lowest state of decay. delft will see vastly augmented the sale of its earthen ware, and gouda that of its tobacco-pipes. however great may be the advantages foreseen by the petitioners, from a legal commerce duly protected with america, their fear is not less, lest we should suffer to escape the happy moment of assuring to them, and to all the republic, these advantages. the present moment must determine the whole. the english nation is weary of the war; and as that people runs easily into extremes, the petitioners are afraid, with strong probable appearances, that a compleat acknowledgment of american independence will soon take place; above all, if the english see an opportunity of being able still to draw from america some conditions favourable for them, or at least something to our disadvantage. ah! what is it which should instigate the americans in making peace, and renewing friendship with great britain, to have any regard for the interests of our republic? if england could only obtain for a condition, that we should be obliged to pay duties more burthensome for our vessels, this would be not only a continual and permanent prejudice; but would be sufficient to transmit to posterity, a lamentable proof of our excessive deference for unbridled enemies. the petitioners dare flatter themselves that a measure so frank of this republic, may powerfully serve for the acceleration of a general peace. a general ardour to extinguish the flames of war reigns in england; an upright and vigorous conduct, on the part of this republic, will contribute to accelerate the accomplishment of the wishes for peace. we flatter ourselves, high and mighty lords, that we have in this regard alleged sufficient reasons for an immediate decision; and that we have so visibly proved the danger of delay, that we dare to hope from the paternal equity of your high mightinesses, a reasonable attention to the respectful proposition which we have made. it proceeds from no other motive than a sincere affection for the precious interests of our dear country; since we consider it as certain, that as soon as the step taken by us shall be known by the english, and that they shall have the least hope of preventing us, they will not fail, as soon as possible, to acknowledge american independence. supported by all these reasons, the petitioners address themselves to your high mightinesses, humbly requesting that it may please your high mightinesses, after the occurrences and affairs above-mentioned, to take, for the greatest advantage of this country, as soon as possible, such resolution as your high mightinesses shall judge most convenient. this doing, &c. petition to the burgomasters and regents of amsterdam: the subscribers, all merchants and manufacturers of this city, with all due respect, give to understand: that the difference arisen between the kingdom of great britain and the united states of america, has not only given occasion for a long and violent war, but that the arms of america have covered themselves with a success so happy, that the congress, assisted by the courts of france and spain, have so well established their liberty and independence, and reduced great britain to extremities so critical, that the house of commons in england, notwithstanding all the opposition of the british ministry, have lately formed the important resolution to turn the king from an offensive war against america, with no other design than to accelerate, if it is possible, a reconciliation with america. that to this happy revolution in the dispositions of the english in favour of the liberty and independence of america, according to all appearances, the resolution taken by the congress, towards the end of the last year, to wit, to forbid in all america the importation of british manufactures and productions, has greatly contributed: a resolution, of which they perceive in england, too visibly, the consequences ruinous to their manufactures, trade, commerce, and navigation, to be able to remain indifferent in this regard. for all other commercial nations, who take to heart, ever so little, their own prosperity, will apply themselves ardently, to collect from it all the fruit possible. to this effect, it would be unpardonable for the business and commerce of this republic in general, and for those of this city in particular, to suffer to escape this occasion so favourable for the encouragement of our manufactures so declined, and languishing in the interior cities, as well as that of the commerce and navigation in the maritime cities; or to suffer that other commercial nations, even with a total exclusion of the mercantile interests of this republic, should profit of it, and this, upon an occasion, when, by reason of the war, equally unjust and ruinous, in which the kingdom of great britain has involved this republic, we cannot, and ought not to have the least regard or condescension for that jealous state, being able even to oblige this arrogant neighbour, in the just fear of the consequences which a more intimate connection between this republic and north america would undoubtedly have, to lay down the sooner her arms, and restore tranquility to all europe. that the petitioners, notwithstanding the inclination they have for it, ought not nevertheless to explain themselves farther upon this object, nor make a demonstration in detail of the important advantages which this republic may procure itself by a connection and a relation more intimate with north america; both, because that no well-informed man can easily call the thing in question, or contradict it; but also, because the states of friesland themselves have very lately explained themselves, in a manner so remarkable, in this respect; and which is still more remarkable, because in very different circumstances, with a foresight, which posterity will celebrate by so much the more, as it is attacked in our time by ill designing citizens, the lords your predecessors thought, four years ago, upon the means of hindering this republic from being excluded from the business of the new world, and from falling into the disagreeable situation in which the kingdom of portugal is at present, considering that according to the informations of your petitioners, the congress has excluded that kingdom from all commerce and business with north america, solely, because it had perceived that it suffered itself to be too strongly directed by the influence of the british court. this example makes us fear with reason that if the propositions made, in the name of america, by mr. adams to this republic, should remain, as they still are, without an answer, or that, if, contrary to all expectation, they should be rejected, in that case the republic ought not to expect a better treatment. that, for these reasons and many others, the petitioners had flattered themselves that we should long ago have opened negotiations, and a closer correspondence, with the united states of america. but this important work appeared to meet with difficulties with some, as incompatible with the accession of this republic to the armed neutrality, and, in course, with the accepted mediation; whilst that others cannot be persuaded to make this so necessary step, in the opinion that we cannot draw any advantage, or at least of much importance, from a more strict connection with america: reasons, according to the petitioners, the frivolity of which is apparent to every one who is not filled with prejudice, without having occasion to employ many words to point it out. for, as to the first point, supposing, for a moment, that it might be made a question whether the republic, after her accession to the armed neutrality, before the war with england, could take a step of this nature, without renouncing at the same time the advantages of the armed neutrality which it had embraced; it is at least very certain, that every difficulty concerning the competency of the republic to take a similar step vanishes and disappears of itself at present, when it finds itself involved in a war with great britain, since from that moment she could not only demand the assistance and succour of all the confederates in the armed neutrality, but that thereby the finds herself authorized, for her own defence, to employ all sorts of means, violent and others, which she could not before adopt nor put in use, while she was really in the position of a neutral power which would profit of the advantages of the armed neutrality. this reasoning then proves evidently, that, in the present situation of affairs, the republic might acknowledge the independence of america; and, notwithstanding this, claim of full right the assistance of her neutral allies, at least, if we would not maintain one of the two following absurdities: that, notwithstanding the violent aggression of england in resentment of our accession to the armed neutrality, we dare not defend ourselves, until our confederates shall think proper to come to our assistance; or, otherwise, that being attacked by the english, it should be permitted us, conformably to the rights of the armed neutrality, to resist them in arms, whether on the doggers-bank or elsewhere, but not by contracting alliances, which certainly do no injury or harm to the convention of the armed neutrality, notwithstanding even the small hope we have of being succored by the allies of the armed confederation. the argument of the mediation is still more contrary to common sense in this, that it supposes, that the republic, by accepting the mediation, has also renounced the employment of all the means, by the way of arms, of alliances, or otherwise, which it might judge useful or necessary to annoy her enemy: a supposition, which certainly is destitute of all foundation, and which would reduce it simply to a real suspension of hostilities on the part of the republic only; to which the republic can never have consented, neither directly nor indirectly. besides this last argument, the petitioners ought to observe, in the first place, that by means of a good harmony and friendship with the united states of america, there will spring up, not only different sources of business for this republic, founded solely on commerce and navigation, but in particular the manufactures and trade will assume a new activity in the interior cities; for they may consume the amount of millions of our manufactures in that new country, of so vast extent: in the second place, abstracted from all interests of commerce, the friendship or the enmity of a nation, which, after having made prisoners of two english armies, has known how to render herself respectable and formidable, if it were only in relation to the western possessions of this state, is not and cannot be in any manner indifferent for our republic. in the last place, it is necessary that the petitioners remark farther in this respect, that several inhabitants of this republic, in the present situation of affairs, suffer very considerable losses and damages, which at least hereafter might be wholly prevented, or in part, in case we should make with the united states of america, with relation to vessels and effects recaptured, a convention similar to that which has been made with the crown of france the last year; for, venerable regents, if a convention of this nature had been contracted in the beginning of this war, the inhabitants of the republic would have already derived important advantages from it, considering that several ships and cargoes, taken by the english from the inhabitants of this state, have fallen into the hands of the americans; among others, two vessels from the west indies, richly loaded, and making sail for the ports of the republic, and both estimated at more than a million of florins of holland; which, captured by the english at the commencement of the year past, were carried into north america, where, after the capitulation of general cornwallis, they passed from the hands of the english into others. that, although the petitioners are fully convinced, that the interests of the commerce of this common country, and of this city, have constantly, but especially in these last years, attracted, and still attract every day, a great part of the cares of the venerable regency; nevertheless, having regard to the importance of the affair, the petitioners have thought that they might, and that they ought to take the liberty to address themselves with this petition to you, venerable regents, to inform you, according to truth, that the moments are precious, that we cannot lose any time, how little soever it may be, without running the greatest risque of losing all; since, by hesitating longer, the republic, according to all appearances, would not derive any advantage, not even more than it has derived from its accession to the armed neutrality; because that in the fear of british menaces, we did not determine to accede to it, until the opportunity of improving the advantage of it was passed. for these causes, the petitioners address themselves to you, venerable regents, respectfully soliciting, that your efficacious influence may condescend, at the assembly of their noble and grand mightinesses the states of this province, to direct affairs in such a manner, that upon this important object there may be taken as soon as possible, and, if possible, even during the continuance of this assembly, a final and decisive resolution, such as you, venerable regents, and their noble and grand mightinesses, according to their high wisdom, shall judge the most convenient: and if, contrary to all expectation, this important operation should meet with any obstacle on the part of one or more of the confederates, that in that case you, venerable regents, in concert with the province of friesland, and those of the other provinces who make no difficulty to open a negotiation with america, will condescend to consider the means, which shall be found proper and convenient to effectuate, that the commerce of this province, as well as that of friesland, and the other members adopting the same opinion, may not be prejudiced by any dilatory deliberations, nor too late resolved, for the conclusion of a measure as important as necessary. so doing, &c. amsterdam _address of the merchants, &c. to their regency_. noble, great, and venerable lords! it is for us a particular satisfaction to be able to offer to your noble and great lordships, as heads of the regency of this city, this well intentioned address that a multitude of our most respectable fellow-citizens have signed. it was already prepared and signed by many, when we learned, as well by the public papers as otherwise, the propositions of a particular peace, with an offer of an immediate suspension of hostilities on the part of great-britain, made to this state by the mediation of the russian ambassador. this is the only reason why no immediate mention was made of it in the address itself. it is by no means the idea, that these offers would have made any impression upon the merchants; since we can, on the contrary, in truth assure your noble and great lordships, that the unanimous sentiment nearly of the exchange of amsterdam, as much as that is interested in it, is entirely conformable to that which the merchants of rotterdam have made known in so energetic a manner: that consequently we have the greatest aversion to like offers, as artful as dangerous, which, being adopted, would very probably throw this republic into other situations very embarrassing, the immediate consequences of which would be, to ruin it totally: whereas, on the other hand, these offers shew that we have only to deal with an enemy exhausted; whom we could force to a general and durable peace in the end, by following only the example of france, spain, and north america; and by using the means which are in our hands. it is improper for us, however, to enlarge farther upon this project, important as it may be, being well assured, that your noble and great lordships see those grievous consequences more clearly than we can trace them. the merchants continue to recommend their commerce and navigation to the constant care and protection of your noble and great lordships, and to insist only, that in case these offers of the court of england should be, at any time, the cause that the affair of the admission of mr. adams, in quality of minister plenipotentiary of the united states of america, should meet with any difficulty or delay on the part of the other confederates, that your noble and great lordships, conformably to the second article of our requisition, inserted in this request, would have the goodness to think upon measures which would secure this province from the ruinous consequences of such a proceeding. _to the foregoing was joined the address presented to the burgomasters and the council, which is of the following tenor._ noble, great, venerable, and noble and venerable lords! the undersigned merchants, citizens, and inhabitants of the city of amsterdam, have learned with an inexpressible joy, the news of the resolution taken the 28th of march last by their noble and grand mightinesses, the lords the states of holland and west-friesland. their noble and grand mightinesses have thereby not only satisfied the general wishes of the greatest and best part of the inhabitants of this province, but they have laid the foundations of ulteriour alliances and correspondencies of friendship and of good understanding with the united states of america, which promise new life to the languishing state of our commerce, navigation, and manufactures. the unanimity with which that resolution was decided in the assembly of holland, gives us grounds to hope that the states of the other provinces will not delay to take a similar resolution; whilst the same unanimity fills with the most lively satisfaction the well intentioned inhabitants of this city, and without doubt those of the whole country, in convincing them fully that the union among the sage and venerable fathers of the country increases more and more; whilst that the promptness and activity with which it hath been concluded, make us hope, with reason, that we shall reap, in time, from a step so important and so necessary for this republic, the desired fruits. who then can call in question, or disavow that the moment seems to approach nearer and nearer, when this republic shall enter into new relations with a people, who find themselves in circumstances which differ but little from those in which our ancestors found themselves two centuries ago, with a people which conciliates more and more the general affection and esteem. the conformity of religion and government, which is found between us and america, joined to the indubitable marks that she hath already long since given of the preference that she feels for our friendship, makes the undersigned not only suppose, but inspires them with a confidence that our connections with her will be equally solid, advantageous, and salutary to the interests of the two nations. the well-being and prosperity which will very probably result from them; the part which you noble, great, venerable, and noble and venerable lords, have had in the conclusion of a resolution so remarkable; the conviction that the venerable council of this city had of it, upon the proposition of the noble, great, and venerable lords, almost consented to, before the request relative to this project presented not long since to you, noble, great, and venerable lords, had come to the knowledge of the council; finally the remembrance of that which was done upon this matter in the year 1778, with the best intentions and the most laudable views, finding itself at present crowned with an approbation as public as it is general, indispensibly oblige the undersigned to approach you with this address; not only to congratulate you upon so remarkable an event, but to thank you at the same time with as much zeal as solemnity, for all those well intentioned cares, and those well concerted measures, for that inflexible attachment, and that faithful adherence to the true interests of the country in general, and of this city in particular, which manifest themselves in so striking a manner, in all the proceedings and resolutions of your noble, great, and venerable lordships, and of the venerable council of this city, and which certainly will attract the esteem and veneration of the latest posterity, when comparing the annals and events of the present with those of former times, it shall discover that amsterdam might still boast itself of possessing patriots who dared sacrifice generously all views of private interests, of grandeur and consideration to the sacred obligations that their country requires of them. we flatter ourselves, noble, great, venerable, noble and venerable lords, that the present public demonstration of our esteem and attachment will be so much the more agreeable, as it is more rare in our republic, and perhaps even it is without example; and as it is more proper to efface all the odious impressions that the calumny and malignity of the english ministry, not long ago so servilely adored by many, but whose downfal is at present consummated, had endeavoured to spread, particularly a little before and at the beginning of this war, insinuations, which have since found partisans in the united provinces, among those who have not been ashamed to paint the exchange of amsterdam (that is to say the most respectable and the most useful part of the citizens of this city, and at the same time the principal support of the well-being of the united provinces) as if it consisted in a great part of a contemptible herd of vile interested souls, having no other object than to give loose to their avidity, and to their desire of amassing treasures, in defrauding the public revenues, and in transporting articles, against the faith of treaties; calumniators, who have had at the same time, and have still the audacity to affront the most upright regency of the most considerable city of the republic, and to expose it to public contempt, as if it participated by connivance, and otherwise, in so shameful a commerce; insinuations and accusations which have been spread with as much falshood as wickedness, and which ought to excite so much the more the indignation of every sensible heart, when it is considered that not only the merchants of this city, but also those of the whole republic have so inviolably respected the faith of treaties that, to the astonishment of every impartial man, one cannot produce any proofs, at least no sufficient proofs; that there hath ever been transported from this country contraband merchandizes; whilst that the conjuncture in which imputations of this kind have been spread rendered the proceeding still more odious, seeing it has been done at an epoch when the commerce and navigation of amsterdam, and of the whole republic, would have experienced the first and almost the only attack of an unjust and perfidious ally, for want of necessary protection, upon which you, noble, great, venerable, and noble and venerable lords, have so often and so seriously insisted, even before the commencement of the troubles between great britain and the united states of america; at an epoch, when the merchant, formed for enterprises, was obliged to see the fruit of his labour, and of his cares, the recompence of his indefatigable industry, and the patrimony destined to his posterity, ravished from his hands by foreign violence and an unbounded rapacity; at an epoch finally, when the wise and prudent politicians, who had exhausted themselves and spared no pains for the public good, saw their patriotic views dissipated, and their projects vanish. receive then, noble, great, venerable, and noble and venerable lords, this solemn testimony of our lively gratitude, as graciously as it is given sincerely on our part. receive it as a proof of our attachment to your persons; an attachment which is not founded upon fear, nor an exteriour representation of authority and grandeur, but which is founded on more noble and immoveable principles, those of esteem and respect, arising from a sentiment of true greatness and of generosity. be assured that when contemptible discord, with its odious attendants, artifice and imposture, could effectuate nothing, absolutely nothing, at the moment when the present war broke out, to prejudice in the least the fidelity of the citizens of the amstel, or to shake them in the observance of their duties; the inconveniencies and the evils that a war naturally and necessarily draws after it will not produce the effect neither. yes, we will submit more willingly to them, according as we shall perceive that the means that god and nature have put into our hands are more and more employed to reduce and humble an haughty enemy. continue then, noble, great, venerable, noble and venerable lords, to proceed with safety in the road that you follow, the only one, which in our opinion can, under the divine benediction, tend to save the country from its present situation. let nothing divert or intimidate you from it. you have already surmounted the greatest difficulties, and the most pointed cares. a more pleasing perspective already opens. great britain, not long since so proud of her forces, that she feared not to declare war against an ancient and faithful ally, already repents of that unjust and rash proceeding; and, succumbing under the weight of a war, which becomes more and more burthensome, she sighs after peace; whilst that the harmony among the members of the supreme government of this country increases with our arms, according as your political system, whose necessity and salutary influence were heretofore less acknowledged, gains every day more numerous imitators. the resolution lately taken by the states of friesland, and so unanimously adopted by our province, furnishes, among many others, one incontestible proof of it; whilst the naval combat fought the last year on doggersbank, hath shewn to astonished europe, that so long a peace hath not made the republic forget the management of arms, but that, on the contrary, it nourishes in its bosom warriors who tread in the footsteps of the _tromps_ and _ruiters_, from whose prudence and intrepidity, after a beginning so glorious, we may promise ourselves the most heroic actions; that their invincible courage, little affected with an evident superiority, will procure, one day, to our country an honourable and permanent peace, which, in eternizing their military glory, will cause the wise policy of your noble, great, venerable, and noble and venerable lordships, to be blessed by the latest posterity. utrecht. _24th april, 1782._ to their noble mightinesses, the lords the states of the country of utrecht. the undersigned manufacturers, merchants, and other traders of this city give, with due respect, to understand, that the petitioners, placing their confidence in the interest that your noble mightinesses have always appeared to take in the advancement of manufactures and commerce, have not been at all scrupulous to recommend to the vigilant attention of your noble mightinessess, the favourable occasion that offers itself in this moment, to revive the manufactures, commerce, and trades fallen into decay in this city and province, in case that your noble mightinesses acknowledged, in the name of this city, mr. adams as minister plenipotentiary of the united states of america, to the end that there might be formed with them a treaty of commerce for this republic. as the petitioners founded themselves thus upon the intimate sentiment of the execution of that which your noble mightinesses judge proper to the advancement of the well-being of the petitioners and of their interests, the petitioners have further the satisfaction of seeing the most agreeable proofs of it, when your noble mightinesses, in your last assembly, resolved unanimously to consent, not only to the admission of mr. adams in quality of minister of the congress of north america, but to authorise the lords the deputies of this province at the generality, to conform themselves in the name of this province, to the resolutions of the lords the states of holland and west friesland, and of friesland; and, doing this, to consent to the acknowledgment and admission of mr. adams, as minister of the united states of america. as that resolution furnishes the proofs the best intentioned, the most patriotic, for the advancement of that which may serve to the well-being and to the encouragement of manufactures, of commerce, and of decayed trades, as well in general, as of this city and province in particular, and which had been so ardently desired; the petitioners think themselves indispensibly obliged to testify, in the most respectful manner, their gratitude for it to your noble mightinesses. the petitioners find themselves absolutely unable to express, in words, the general satisfaction that this event hath caused; not only to them; but also to the great and small of this province; joined to the confirmation of the perfect conviction in which they repose themselves, also, for the future, upon the paternal care of your noble mightinesses, that the consummation of the desired treaty of commerce with the americans may be soon effected. the petitioners attest by the present, before your noble mightinesses, their solemn and well-meant gratitude, which they address at the same time to your noble mightinesses, as the most sincere mark of veneration and respect for the persons, and the direction of public affairs, of your noble mightinesses; praying that almighty god may deign to bless the efforts and the councils of your noble mightinesses, as well as those of the confederates; that moreover this province, and our dear country, by the propositions of an armistice, and that which depends thereon, should not be involved in any negotiations for a particular peace with our perfidious enemy, but that we obtain no other peace than a general peace, which (as your noble mightinesses express yourselves in your resolution) may be compatible with their honour and dignity; and serve not only for this generation, but also for the latest posterity, as a monument of glory, of eternal gratitude to, and esteem for the persons and public administration of the present time. friesland. _extract from the register-book of the lords the states of friesland_. the requisition of mr. adams, for presenting his letters of credence from the united states of america to their high mightinesses, having been brought into the assembly, and put into deliberation, as also the ulteriour address to the same purpose, with a demand of a categorical answer, made by him, as is more amply mentioned in the minutes of their high mightinesses of the 4th of may, 1781, and the 9th of january, 1782; whereupon it having been taken into consideration that the said mr. adams would probably have some propositions to make to their high mightinesses, and to present to them the principle articles and foundations upon which the congress, on their part, would enter into a treaty of commerce and friendship, or other affairs to propose, in regard to which dispatch would be requisite. it has been thought fit and resolved to authorize the lords the deputies of this province at the generality, and to instruct them to direct things, at the table of their high mightinesses, in such a manner that the said mr. adams be admitted forthwith as minister of the congress of north america; with further order to the said deputies that if there should be made moreover any similar propositions by the same, to inform immediately their noble mightinesses of them. and an extract of the present resolution shall be sent them for their information, that they may conduct themselves conformably. thus resolved at the province house the 26th february, 1782. compared with the aforesaid book to my knowledge. _signed_ a. j. v. sminia. holland and westfriesland. _extract of the resolutions of the lords the states of holland and westfriesland, taken in the assembly of their noble and grand mightinesses, thursday 28th march, 1782_. deliberated by resumption upon the address and the ulteriour address of mr. adams, made the 4th of may, 1781, and the 9th of january, 1782, to the president of the states general, communicated to the assembly the 9th may, 1781, and the 22d of last month, to present his letters of credence, in the name of the united states of america, to their high mightinesses; by which ulteriour address, the said mr. adams hath demanded a categorical answer, that he may acquaint his constituents thereof: deliberated also upon the petitions of a great number of merchants, manufacturers and other inhabitants of this province, interested in commerce to support their request presented to the states general, the twentieth current, to the end, that efficacious measures might be taken to establish a commerce between this country and north america, copy of which petitions have been given to the members, the twenty-first; it hath been thought fit and resolved that the affair shall be directed on the part of their noble and grand mightinesses, at the assembly of the states general, and that there shall be made the strongest instances that mr. adams be admitted and acknowledged, as soon as possible, by their high mightinesses, in quality of ambassador of the united states of america. and the counsellor pensionary hath been charged to inform under hand the said mr. adams of this resolution of their noble and grand mightinesses. zealand. _extract of the resolutions of their high mightinesses the states general of the united provinces. monday 8th april, 1782_. the deputies of the province of zealand have brought to the assembly, and have caused to be read there, the resolution of the states of the said province, their principals, to cause to be admitted, as soon as possible, mr. adams in quality of ambassador of the congress of north america, according to the following resolution. _extract from the register of the resolutions of the lords the states of zealand, 4th of april, 1782_. it hath been thought fit and ordered, that the lords, the ordinary deputies of this province at the generality, shall be authorised, as it is done by the present, to assist, in the direction of affairs at the assembly of their high mightinesses, in such a manner, that mr. adams may be acknowledged, as soon as possible, as ambassador of the congress of north america; that his letters of credence be accepted; and that he be admitted in that quality, according to the ordinary form; enjoining further upon the said lords the ordinary deputies, to take such propositions, as should be made to this republic by the said mr. adams, for the information and deliberation of their high mightinesses, to the end to transmit them here as soon as possible. and an extract of this resolution of their noble mightinesses shall be sent to the lords, their ordinary deputies, to serve them as an instruction. _signed_ j. m. chalmers. upon which having deliberated, it hath been thought fit and resolved to pray, by the present, the lords the deputies of the province of guelderland, utrecht, and groningen and ommelanden, who have not yet explained themselves upon the subject, to be pleased to do it as soon as possible. overyssel. _extract from the register of the resolutions of the equestrian order, and of the cities composing the states of overyssel. zwoll, 5th april, 1782._ mr. the grand bailiff of saalland, and the other commissioners of their noble mightinesses for the affairs of finance, having examined, conformably to their commissorial resolution of the third of this month, the addresses of mr. adams, communicated to the assembly the 4th of may, 1781, and the 22d of february, 1782, to present his letters of credence to their high mightinesses, in the name of the united states of america; as well as the resolution of the lords the states of holland and westfriesland, dated the 28th of march, 1782, carried the 29th of the same month to the assembly of their high mightinesses, for the admission and acknowledgment of mr. adams, have reported to the assembly, that they should be of opinion, that the lords the deputies of this province in the states general ought to be authorised and charged to declare in the assembly of their high mightinesses, that the equestrian order and the cities judge that it is proper to acknowledge, as soon as possible, mr. adams in quality of minister of the united states of north america to their high mightinesses. upon which, having deliberated, the equestrian order and the cities have conformed themselves to the said report. compared with the aforesaid register. _signed_ derk dunbar. groningen. _extract from the register of the resolutions of their noble mightinesses, the states of groningen and ommelanden. tuesday 9th april, 1782._ the lords the states of groningen and ommelanden, having heard the report of the lords the commissioners for the petitions of the council of state and the finances of the province, and having carefully examined the demand of mr. adams, to present his letters of credence from the united states of america to their high mightinesses, have, after deliberation upon the subject, declared themselves of opinion, that in the critical circumstances in which the republic finds itself at present, it is proper to take, without loss of time, such efficacious measures, as may not only repair the losses and damages that the kingdom of great britain hath caused in a manner so unjust, and against every shadow of right, to the commerce of the republic, as well before as after the war, but particularly such as may establish the free navigation and the commerce of the republic, for the future, upon on the most solid foundations, as may confirm and re-assure it, by the strongest bonds of reciprocal interest; and that, in consequence, the lords the deputies at the assembly of their high mightinesses ought to be authorised, on the part of the province, as they are by the present, to admit mr. adams to present his letters of credence from the united states of america, and to receive the propositions which he shall make, to make report of them to the lords the states of this province. _signed_ e. lewe, secretary. the states general, having deliberated the same day upon the resolution, have resolved, that the deputies of this province of guelderland, which has not yet declared itself upon the same subject, should be requested, to be pleased to do it as soon as possible. utrecht. _extract of the resolutions of their noble mightinesses, the states of the province of utrecht, 10 april 1782_. heard the report of mr. de westerveld and other deputies of their noble mightinesses for the department of war, who, in virtue of the commissorial resolutions of the 9th of may 1781, 16th january and 20th march of the present year 1782, have examined the resolutions of their high mightinesses of the 4th of may 1781, containing an overture, that mr. the president of the assembly of their high mightinesses had made, "that a person styling himself j. adams had been with him, and had given him to understand, that he had received letters of credence for their high mightinesses from the united states of america, with a request, that he would be pleased to communicate them to their high mightinesses; as well as the resolution of their high mightinesses of the 9th of january, containing an ulteriour overture of mr. the president, that the said mr. adams had been with him, and had insisted upon a categorical answer, whether his said letters of credence would be accepted or not; finally the resolution of their high mightinesses of the 5th of march last, with the insertion of the resolution of friesland, containing a proposition to admit mr. adams in quality of minister of the congress of north america." upon which having deliberated, and remarked that the lords the states of holland and west friesland, by their resolution carried the 29th of march to the states general, have also consented to the admission of the said mr. adams in quality of minister of the congress of north america, it hath been thought fit and resolved, that the lords the deputies of this province in the states general should be authorised, as their noble mightinesses authorise them by the present, to conform themselves, in the name of this province, to the resolution of the lords the states of holland and westfriesland, and of friesland, and to consent by consequence, that mr. adams be acknowledged and admitted as minister of the united states of america; their noble mightinesses being, in the mean time, of opinion, that it would be necessary to acquaint her majesty the empress of russia, and the other neutral powers, with the resolution to be taken by their high mightinesses upon this subject, in communicating to them, as much as shall be necessary, the reasons which have induced their high mightinesses to it, and giving them the strongest assurances that the intention of their high mightinesses is by no means to prolong thereby the war, which they would have willingly prevented and terminated long since; but on the contrary, that their high mightinesses with nothing with more ardor, than a prompt re-establishment of peace; and that they shall be always ready, on their part, to co-operate in it, in all possible ways, and with a suitable readiness, so far as that shall be any way compatible with their honour and their dignity, and for this end an extract of this shall be carried by missive to the lords the deputies at the generality. guelderland. _extract from the recès of the ordinary diet, holden in the city of nimeguen, in the month of april 1782. wednesday, 17 april 1782._ the requisition of mr. adams, to present his letters of credence to their high mightinesses in the name of the united states of america, having been brought to the assembly and read, as well as an ulteriour address made upon this subject, with a demand of a categorical answer by the said mr. adams, more amply mentioned in the registers of their high mightinesses of the date of the 4th of may 1781, and of the 9th of january 1782; moreover the resolutions of the lords the states of the five other provinces, carried successively to the assembly of their high mightinesses, and all tending to admit mr. adams in quality of ambassador of the united states of america to this republic; upon which their noble mightinesses, after deliberation, have resolved to authorise the deputies of this province at the states general, as they authorise them by the present, to conform themselves in the name of this province to the resolution of the lords the states of holland and westfriesland, and to consent, by consequence, that mr. adams may be acknowledged and admitted in quality of ambassador of the united states of america to this republic. in consequence, an extract of the present shall be sent to the said deputies, to make as soon as possible the requisite overture of it to the assembly of their high mightinesses. in fidem extracti. _signed_ j. in de betouw. the states general. _extract from the register of the resolutions of their high mightinesses the states general of the united provinces. friday 19 april, 1782._ deliberated by resumption, upon the address and the ulteriour address, made by mr. adams the 4th of may 1781, and the 9th of january of the current year to mr. the president of the assembly of their high mightinesses, to present to their high mightinesses his letters of credence in the name of the united states of north america; and by which ulteriour address the said mr. adams hath demanded a categorical answer, to the end to be able to acquaint his constituents thereof; it hath been thought fit and resolved that mr. adams shall be admitted and acknowledged in quality of ambassador of the united states of north america to their high mightinesses, as he is admitted and acknowledged by the present. _signed_ w. boreel, _president_. _lower down_ compared with the aforesaid register. _signed_ h. fagel. _extract from the register of the resolutions of their high mightinesses the states general of the united provinces, monday, 22d april, 1782_. mr. boreel, who presided in the assembly the last week, hath reported to their high mightinesses, and notified to them, that mr. john adams, ambassador of the united states of america, had been with him last saturday, and presented to him a letter from the assembly of congress, written at philadelphia, the first of january, 1781, containing a credence, for the said mr. adams, to the end to reside in quality of its minister plenipotentiary near their high mightinesses: upon which having deliberated, it hath been thought fit and resolved, to declare by the present: "that the said mr. adams is agreeable to their high mightinesses; that he shall be acknowledged in quality of minister plenipotentiary; and that there shall be granted to him an audience, or assigned commissioners, when he shall demand it." information of the above shall be given to the said mr. adams, by the agent van der burch de spieringshoek. _signed_ w. van citters, _president_. _lower down_ compared with the aforesaid register. _signed_ h. fagel. medal. to the noble and mighty lords, the states of friesland, the society of citizens, established at leeuwarden, under the motto, "by liberty and zeal," most humbly represents, that it desires to have an opportunity of testifying publicly, by facts, to your noble mightinesses, the most lively, but, at the same time, the most respectful sentiments of gratitude, which not only animate them, but also, as they assure themselves, all the well intentioned citizens, especially, with relation to the resolutions equally important, and full of wisdom; which your noble mightinesses have taken upon all the points, in regard to which the critical circumstances, in which our dear country finds itself plunged, have furnished to your noble mightinesses, objects equally numerous and disagreeable, particularly, at the ordinary diet of the year 1782, and at the extraordinary diet holden in the month of april last; resolutions which bear not only the characters of wisdom, but also those of the best intentioned solicitude, and the purest love of our country; and which prove, in the most convincing manner, that your noble mightinesses have no greater ambition than its universal prosperity; assiduously proposing to yourselves, as the most important object of your attention, of your enterprises, and of your attachment, the rule, _salus populi suprema lex esto_; resolutions, in fine, which ought perfectly to re-assure the good citizens of this province, and encourage them to persevere in that full and tranquil confidence which has hindered them from representing to your noble mightinesses the true interests of the country, and to exhort them, at the same time, by their supplications, to act with courage, and to fulfil their duties; considering that the said resolutions have fully assured them, that their possessions, with that which is above all things dear to them, their liberty (that right which is more precious to them than their lives; to which the smallest injury cannot be done, without doing wrong and dishonour to humanity; a right, nevertheless, which, if we consider the world in general, has been, alas! almost every where equally violated) are deposited in safety, under the vigilant eye of your noble mightinesses. the society has thought that it might accomplish its wishes, in the most convenient and decent manner, in causing to be stricken, at its expence, a medal of silver, which may remain to posterity a durable monument of the perfect harmony which at the present dangerous epoch has reigned between the government and the people. it has conceived, for this purpose, a sketch or project, as yet incomplete, according to which one of the sides of the medal should bear the arms of friesland, held by an hand, which descends from the clouds, with an inscription in the following terms: _to the states of friesland, in grateful memory of the diets of february and of april, 1782, dedicated by the society_ liberty and zeal. an inscription, which would thus contain a general applause of all the resolutions taken in these two diets; whilst upon the reverse, one should distinguish, more particularly, the two events which interest the most our common country, in regard of which your noble mightinesses have given the example to the states of the other provinces, and which merit, for this reason, as placed in the foremost situation, to shew itself the most clearly to the fight: to wit, "the admission of mr. adams in quality of minister of the united states of america to this republic; and the refusal of a separate peace with great britain." events which should be represented symbolically by a frisian, dressed according to the ancient characteristic custom of the frisians, holding out his right-hand to an inhabitant of north america, in token of friendship and brotherly love; whilst with the left-hand he rejects the peace which england offers him. the whole with such convenient additions, and symbolical ornaments, which the society, perhaps, would do well to leave to the invention of the medalist, &c. [_the remainder of this request relates to other subjects._] done at leeuwarden the 8th may, 1782. the society "by liberty and zeal." _signed at its request_ w. wopkens, _in the absence of the secretary_. an essay on canon and feudal law. by john adams, ambassador plenipotentiary from the united and independent states of north america, to their high mightiness the states general of the united provinces of holland. an essay on canon and feudal law. "ignorance and inconsideration, are the two great causes of the ruin of mankind."--this is an observation of dr. _tillotson_, with relation to the interest of his fellow-men, in a future and immortal state: but it is of equal truth and importance, if applied to the happiness of men in society, on this side the grave.--in the earliest ages of the world, _absolute monarchy_ seems to have been the universal form of government.--kings, and a few of their great counsellors and captains, exercised a cruel tyranny over the people who held a rank in the scale of intelligence, in those days, but little higher than the camels and elephants, that carried them and their engines to war. by what causes it was brought to pass, that the people in the middle ages, became more _intelligent_ in general, would not perhaps be possible in these days to discover: but the fact is certain, and wherever a general knowledge and sensibility have prevailed among the people, arbitrary government and every kind of oppression have lessened and disappeared in proportion.--man has certainly an exalted soul! and the same principle in human nature; that aspiring noble principle, founded in benevolence and cherished by knowledge; i mean the love of power, which has been so often the cause of _slavery_, has, whenever freedom has existed, been the cause of freedom. if it is this principle, that has always prompted the princes and nobles of the earth, by every species of fraud and violence, to shake off all the limitations of their power; it is the same that has always stimulated the common people to aspire at independency, and to endeavour at confining the power of the great, within the limits of equity and reason. the poor people, it is true, have been much less successful than the great--they have seldom found either leisure or opportunity to form an union and exert their strength--ignorant as they were of arts and letters, they have seldom been able to frame and support a regular opposition. this, however, has been known, by the great, to be the temper of mankind, and they have accordingly laboured, in all ages, to wrest from the populace, as they are contemptuously called, the knowledge of their rights and wrongs, and the power to assert the former or redress the latter. i say rights, for such they have, undoubtedly, antecedent to all earthly government--_rights_, that cannot be repealed or restrained by human laws--_rights_, derived from the great legislator of the universe. since the promulgation of christianity, the two greatest systems of tyranny, that have sprung from this original, are the _cannon_ and the _feudal_ law--the desire of dominion, that great principle by which we have attempted to account for so much good, and so much evil, is, when properly restrained, a very useful and noble movement in the human mind: but when such restraints are taken off, it becomes an encroaching, grasping, restless and ungovernable power. numberless have been the systems of iniquity, contrived by the great, for the gratification of this passion in themselves: but in none of them were they ever more successful, than in the invention and establishment of the _canon_ and the _feudal_ law. by the former of these, the most refined, sublime, extensive, and astonishing constitution of policy, that ever was conceived by the mind of man, was framed by the romish clergy for the aggrandisement of their own order. all the epithets i have here given to the romish policy are just; and will be allowed to be so, when it is considered, that they even persuaded mankind to believe, faithfully and undoubtingly, that god almighty had intrusted them with the keys of heaven, whose gates they might open and close at pleasure--with a power of dispensation over all the rules and obligations of morality--with authority to license all sorts of sins and crimes--with a power of deposing princes, and absolving subjects from allegiance--with a power of procuring or withholding the rain of heaven, and the beams of the sun--with the management of earthquakes, pestilence and famine.----nay, with the mysterious, awful, incomprehensible power of creating out of bread and wine, the flesh and blood of god himself.--all these opinions they were enabled to spread and rivet among the people, by reducing their minds to a state of sordid ignorance and staring timidity; and by infusing into them a _religious_ horror of letters and knowledge. thus was human nature chained fast for ages, in a cruel, shameful, and deplorable servitude, to him and his subordinate tyrants; who, it was foretold, would exalt himself above all that was called god, and that was worshipped.---in the latter we find another system similar in many respects to the former; which, although it was originally formed perhaps for the necessary defence of a barbarous people, against the inroads and invasions of her neighbouring nations; yet, for the same purposes of tyranny, cruelty and lust, which had dictated the _canon_ law, it was soon adopted by almost all the princes of europe, and wrought into the constitutions of their government.--it was originally a code of laws, for a vast army in a perpetual encampment.--the general was invested with the sovereign propriety of all the lands within the territory.--of him, his servants and vassals, the first rank of his great officers held the lands; and in the same manner, the other subordinate officers held of them; and all ranks and degrees, held their lands, by a variety of duties and services, all tending to bind the chains the faster, on every order of mankind. in this manner, the common people were holden together, in herds and clans, in a state of servile dependance on their lords; bound, even by the tenure of their lands to follow them, whenever they commanded, to their wars; and in a state of total ignorance of every thing divine and human, excepting the use of arms, and the culture of their lands. but, another event still more calamitous to human liberty, was a wicked confederacy, between the two systems of tyranny above described.--it seems to have been even stipulated between them, that the temporal grandees should contribute every thing in their power to maintain the ascendency of the priesthood; and that the spiritual grandees, in, their turn, should employ that ascendency over the consciences of the people, in impressing on their minds, a blind, implicit obedience to civil magistracy.-thus, as long as this confederacy lasted, and the people were held in ignorance; liberty, and with her, knowledge, and virtue too, seem to have deserted the earth; and one age of darkness succeeded another, till god, in his benign providence, raised up the champions, who began and conducted the reformation.--from the time of the reformation, to the first settlement of america, knowledge gradually spread in europe, but especially in england; and in proportion as that increased and spread among the people, ecclesiastical and civil tyranny, which i use as synonymous expressions, for the _canon_ and _feudal_ laws, seem to have lost their strength and weight. the people grew more and more sensible of the wrong that was done them, by these systems; more and more impatient under it; and determined at all hazards to rid themselves of it; till, at last, under the execrable race of the stuarts, the struggle between the people and the confederacy aforesaid of temporal and spiritual tyranny, became formidable, violent and bloody.---it was this great struggle that peopled america.--it was not religion alone, as is commonly supposed; but it was a love of _universal_ liberty, and an hatred, a dread, an horror of the infernal confederacy before described, that projected, conducted, and accomplished the settlement of america.---it was a resolution formed by a sensible people, i mean the _puritans_ almost in despair. they had become intelligent in general, and many of them learned.--for this fact i have the testimony of archbishop _king_ himself, who observed of that people, that they were more intelligent, and better read than even the members of the church whom he censures warmly for that reason.--this people had been so vexed, and tortured by the powers of those days, for no other crime than their knowledge, and their freedom of enquiry and examination; and they had so much reason to despair of deliverance from those miseries on that side the ocean, that they at last resolved to fly to the _wilderness_ for refuge, from the temporal and spiritual principalities and powers, and plagues, and scourges of their native country. after their arrival here, they began their settlement, and formed their plan both of ecclesiastical and civil government, in direst opposition to the _canon_ and the _feudal_ systems.----the leading men among them, both of the clergy and the laity were men of sense and learning: to many of them, the historians, orators, poets and philosophers of greece and rome were quite familiar: and some of them have left libraries that are still in being, consisting chiefly of volumes, in which the wisdom of the most enlightened ages and nations is deposited, written however in languages, which their great grandsons, _though educated in european universities_, can scarcely read. thus accomplished were many of the first planters of these colonies.--it may be thought polite and fashionable, by many modern fine gentlemen, perhaps, to deride the characters of these persons as enthusiastical, superstitious and republican: but such ridicule is founded in nothing but foppery and affectation, and is grosly injurious and false.----religious to some degree of enthusiasm, it may be admitted they were; but this can be no peculiar derogation from their character, because it was at that time almost the universal character, not only of england but of christendom. had this however been otherwise, their enthusiasm, considering the principles in which it was founded, and the ends to which it was directed, far from being a reproach to them, was greatly to their honour: for i believe it will be found universally true, that no great enterprize, for the honour or happiness of mankind, was ever atchieved without a large mixture of that noble infirmity. whatever imperfections may be justly ascribed to them, which however are as few as any mortals have discovered, their judgment in framing their policy was founded in wise, humane and benevolent principles. it was founded in revelation and in reason too: it was consistent with the principles of the best, and greatest, and wisest legeslators of antiquity.----tyranny in every form, shape and appearance, was their disdain and abhorrence; no fear of punishment, nor even of death itself, in exquisite tortures, had been sufficient to conquer that steady, manly, pertinacious spirit, with which they had opposed the tyrants of those days, in church and state. they were very far from being enemies to monarchy; and they knew as well as any men, the just regard and honour that is due to the character of a dispenser of the mysteries of the gospel of grace: but they saw clearly, that popular powers must be placed as a guard, a controul, a balance, to the powers of the monarch and the priest in every government; or else it would soon become the man of sin, the whore of babylon, the mystery of iniquity, a great and detestable system of fraud, violence and usurpation. their greatest concern seems to have been to establish a government of the church more consistent with the scriptures, and a government of the state more agreeable to the dignity of human nature, than any they had seen in europe: and to transmit such a government down to their posterity, with the means of securing and preserving it for ever. to render the popular power in their new government as great and wise as their principles of theory, i. e. as human nature and the christian religion require it should be, they endeavoured to remove from it as many of the feudal inequalities and dependencies as could be spared, consistently with the preservation of a mild limited monarchy. and in this they discovered the depth of their wisdom, and the warmth of their friendship to human nature.--but the first place is due to religion.----they saw clearly, that of all the nonsense and delusion which had ever passed through the mind of man, none had ever been more extravagant than the notions of absolutions, indelible characters, uninterrupted successions, and the rest of those fantastical ideas, derived from the canon law, which had thrown such a glare of mystery, sanctity, reverence and right, reverend eminence, and holiness around the idea of a priest, as no mortal could deserve and as always must, from the constitution of human nature, be dangerous in society. for this reason, they demolished the whole system of diocesan episcopacy, and deriding, as all reasonable and impartial men must do, the ridiculous fancies of sanctified effluvia from episcopal fingers, they established sacerdotal ordination on the foundation of the bible and common sense.----this conduct at once imposed an obligation on the whole body of the clergy, to industry, virtue, piety and learning; and rendered that whole body infinitely more independent on the civil powers, in all respects, than they could be where they were formed into a scale of subordination, from a pope down to priests and friars and confessors, necessarily and essentially, a sordid, stupid, and wretched herd; or than they could be in any other country, where an archbishop held the place of an universal bishop, and the vicars and curates that of the ignorant, dependent, miserable rabble aforesaid; and infinitely more sensible and learned than they could be in either.----this subject has been seen in the same light by many illustrious patriots, who have lived in america, since the days of our forefathers, and who have adored their memory for the same reason.----and methinks there has not appeared in new england, a stronger veneration for their memory, a more penetrating insight into the grounds and principles and spirit of their policy, nor a more earnest desire of perpetuating the blessings of it to posterity, than that fine institution of the late chief justice dudley, of a lecture against popery, and on the validity of presbyterian ordination. this was certainly intended by that wise and excellent man, as an eternal memento of the wisdom and goodness of the very principles that settled america. but i must again return to the feudal law.----the adventurers so often mentioned, had an utter contempt of all that dark ribaldry of hereditary indefeasible right,--the lord's anointed,--and the divine miraculous original of government, with which the priesthood had inveloped the feudal monarch in clouds and mysteries, and from whence they had deduced the most mischievous of all doctrines, that of passive obedience and non-resistance. they knew that government was a plain, simple, intelligible thing, founded in nature and reason, and quite comprehensible by common sense.----they detested all the base services, and servile dependencies of the feudal system.----they knew that no such unworthy dependencies took place in the ancient seats of liberty, the republic of greece and rome: and they thought all such slavish subordinations were equally inconsistent with the constitution of human nature, and that religious liberty with which jesus had made them free. this was certainly the opinion they had formed, and they were far from being singular or extravagant in thinking so.----many celebrated modern writers in europe have espoused the same sentiments.--lord kaims, a scottish writer of great reputation, whose authority in this case ought to have the more weight, as his countrymen have not the most worthy ideas of liberty, speaking of the feudal law, says, "a constitution so contradictory to all the principles which govern mankind, can never be brought about, one should imagine, but by foreign conquest or native usurpations." brit. ant. p. 2.--rousseau speaking of the same system, calls it, "that most iniquitous and absurd form of government, by which human nature was so shamefully degraded." social compact, page 164.----it would be easy to multiply authorities; but it must be needless, because as the original of this form of government was among savages, as the spirit of it is military and despotic, every writer, who would allow the people to have any right to life or property or freedom, more than the beasts of the field, and who was not hired or inlisted under arbitrary lawless power, has been always willing to admit the feudal system to be inconsistent with liberty and the rights of mankind. to have holden their lands allodially, or for every man to have been the sovereign lord and proprietor of the ground he occupied, would have constituted a government, too nearly like a commonwealth.--they were contented, therefore, to hold their lands of their king, as their sovereign lord, and to him they were willing to render homage: but to no mesne and subordinate lords, nor were they willing to submit to any of the baser services.--in all this they were so strenuous, that they have even transmitted to their posterity, a very general contempt and detestation of holdings by quit rents: as they have also an hereditary ardour for liberty, and thirst for knowledge.-they were convinced by their knowledge of human nature derived from history and their own experience, that nothing could preserve their posterity from the encroachments of the two systems of tyranny, in opposition to which, as has been observed already, they erected their government in church and state, but knowledge diffused generally through the whole body of the people.--their civil and religious principles, therefore, conspired to prompt them to use every measure, and take every precaution in their power to propagate and perpetuate knowledge. for this purpose they laid very early the foundations of colleges, and invested them with ample privileges and emoluments; and it is remarkable, that they have left among their posterity, so universal an affection and veneration for those seminaries, and for liberal education, that the meanest of the people contribute chearfully to the support and maintenance of them every year, and that nothing is more generally popular than productions for the honour, reputation, and advantage of those seats of learning. but the wisdom and benevolence of our fathers rested not here. they made an early provision by law, that every town, consisting of so many families, should be always furnished with a grammar school.--they made it a crime for such a town to be destitute of a grammar school-master for a few months, and subjected it to an heavy penalty.--so that the education of all ranks of people was made the care and expence of the public in a manner, that i believe has been unknown to any other people ancient or modern. the consequences of these establishments we see and feel every day.--a native of america who cannot read and write, is as rare an appearance as a jacobite, or a roman catholic, i. e. as rare as a comet or an earthquake.--it has been observed, that we are all of us lawyers, divines, politicians, and philosophers.--and i have good authorities to say, that all candid foreigners who have passed through this country, and conversed freely with all sorts of people here, will allow, that they have never seen so much knowledge and civility among the common people in any part or the world.--it is true there has been among us a party for some years, consisting chiefly, not of the descendants of the first settlers of this country, but of high churchmen and high statesmen, imported since, who affect to censure this provision for the education of our youth as a needless expence, and an imposition upon the rich in favour of the poor;--and as an institution productive of idleness and vain speculation among the people, whose time and attention, it is said, ought to be devoted to labour, and not to public affairs, or to examination into the conduct of their superiors. and certain officers of the crown, and certain other missionaries of ignorance, foppery, servility, and slavery, have been most inclined to countenance and encrease the same party.--be it remembered, however, that liberty must at all hazards be supported. _we have a right to it, derived from our_ maker! but if we had not, our fathers have earned and bought it for us at the expence of their ease, their estates, their pleasure, and their blood.--and liberty cannot be preserved without a general knowledge among the people, who have a right, from the frame of their nature, to knowledge, as their great creator, who does nothing in vain, has given them understandings and a desire to know; but besides this they have a right, an indisputable, unalienable, indefeasible, divine right, to that most dreaded and envied kind of knowledge, i mean of the characters and conduct of their rulers. _rulers are no more than attornies, agents, and trustees for the people_: and if the cause, the interest, and trust are insidiously betrayed, or wantonly trifled away, the people have a right to revoke the authority that they themselves have deputed, and to constitute abler and better agents, attornies, and trustees. and the preservation of the means of knowledge, among the lowest rank, is of more importance to the public, than all the property of all the rich men in the country. it is even of more consequence to the rich themselves, and to their posterity.--the only question is, whether it is a public emolument? and if it is, the rich ought undoubtedly to contribute in the same proportion as to all other public burdens, i. e. in proportion to their wealth, which is secured by public expences.--but none of the means of information are more sacred, or have been cherished with more tenderness and care by the settlers of america, than the press. care has been taken that the art of printing should be encouraged, and that it should be easy and cheap, and safe for any person to communicate his thoughts to the public.--and you, messieurs printers, whatever the tyrants of the earth may say of your paper, have done important service to your country, by your readiness and freedom in publishing the speculations of the curious. the stale, impudent insinuations of slander and sedition, with which the gormandizers of power have endeavoured to discredit your paper, are so much the more to your honour; for the jaws of power are always opened to devour, and her arm is always stretched out, if possible to destroy, the freedom of thinking, speaking, and writing.--and if the public interest, liberty and happiness have been in danger, from the ambition or avarice of any great man, or number of great men, whatever may be their politeness, address, learning, ingenuity, and in other respects integrity and humanity, you have done yourselves honour, and your country service, by publishing and pointing out that avarice and ambition.--these views are so much the more dangerous and pernicious, for the virtues with which they may be accompanied in the same character, and with so much the more watchful jealousy to be guarded against. "curse on such virtues, they've undone their country." _be not intimidated, therefore, by any terrors, from publishing, with the utmost freedom whatever can be warranted by the laws of your country; nor suffer yourselves to be wheedled out of your liberty by any pretences of politeness, delicacy, or decency._ these, as they are often used, are but three different names for hypocrisy, chicanery, and cowardice. much less, i presume, will you be discouraged by any pretences, that malignants on this side the water[a] will represent your paper as facetious and seditious, or that the great on the other side the water will take offence at them. this dread of representation has had for a long time in this province effects very similar to what the physicians call an _hydrophobia_, or dread of water.--it has made us delirious--and we have rushed headlong into the water, till we are almost drowned, out of simple or phrensical fear of it. believe me, the character of this country has suffered more in britain, by the pusillanimity with which we have borne many insults and indignities from the creatures of power at home, and the creatures of those creatures here, than it ever did, or ever will by the freedom and spirit that has been or will be discovered in writing or action. believe me, my countrymen, they have imbibed an opinion on the other side the water, that we are an ignorant, a timid, and a stupid people; nay, their tools on this side have often the impudence to dispute your bravery.--but i hope in god the time is near at hand, when they will be fully convinced of your understanding, integrity, and courage. but can any thing be more ridiculous, were it not too provoking to be laughed at, than to pretend that offence should be taken at home for writings here?--pray let them look at home. is not the human understanding exhausted there? are not reason, imaginations, wit, passion, senses and all, tortured to find out satire and invective against the characters of the vile and futile fellows who sometimes get into place and power?--the most exceptionable paper that ever i saw here is perfect prudence and modesty, in comparison of multitudes of their applauded writings. yet the high regard they have for the freedom of the press, indulges all.--i must and will repeat it, newspapers deserve the patronage of every friend to his country. and whether the defamers of them are arrayed in robes of scarlet or sable, whether they lurk and skulk in an insurance office, whether they assume the venerable character of a priest, the sly one of a scrivener, or the dirty, infamous, abandoned one of an informer, they are all the creatures and tools of the lust of domination.---[footnote a: boston in america.] the true source of our sufferings, has been our timidity. we have been afraid to think.--we have felt a reluctance to examining into the grounds of our privileges, and the extent in which we have an indisputable right to demand them, against all the power and authority on earth.--and many who have not scrupled to examine for themselves, have yet, for certain prudent reasons, been cautious, and diffident of declaring the result of their enquiries. the cause of this timidity is perhaps hereditary, and to be traced back in history, as far as the cruel treatment the first settlers of this country received, before their embarkation for america, from the government at home.--every body knows how dangerous it was, to speak or write in favour of any thing, in those days, but the triumphant system of religion and politicks. and our fathers were, particularly, the objects of the persecutions and proscriptions of the times.--it is not unlikely therefore, that, although they were inflexibly steady in refusing their positive assent to any thing against their principles, they might have contracted habits of reserve, and a cautious diffidence of asserting their opinions publicly.--these habits they probably brought with them to america, and have transmitted down to us.--or, we may possibly account for this appearance, by the great affection and veneration, americans have always entertained for the country from whence they sprang--or by the quiet temper for which they have been remarkable, no country having been less disposed to discontent than this--or by a sense they have that it is their duty to acquiesce under the administration of government, even when in many smaller matters grievous to them, and until the essentials of the great compact are destroyed or invaded. these peculiar causes might operate upon them; but without these, we all know, that human nature itself, from indolence, modesty, humanity or fear, has always too much reluctance to a manly assertion of its rights. hence perhaps it has happened, that nine-tenths of the species, are groaning and gasping in misery and servitude. but whatever the cause has been, the fact is certain, we have been excessively cautious of giving offence by complaining of grievances.----and it is as certain, that american governors, and their friends, and all the crown officers, have availed themselves of this disposition in the people.--they have prevailed on us to consent to many things, which were grossly injurious to us, and to surrender many others with voluntary tameness, to which we had the clearest right. have we not been treated formerly, with abominable insolence, by officers of the navy?----i mean no insinuation against any gentleman now on this station, having heard no complaint of any one of them to his dishonour.--have not some generals, from england, treated us like servants, nay, more like slaves than like britons?--have we not been under the most ignominious contribution, the most abject submission, the most supercilious insults of some custom-house officers? have we not been trifled with, browbeaten, and trampled on, by former governors, in a manner which no king of england since james the second has dared to indulge towards his subjects? have we not raised up one family, placed in them an unlimited confidence, and been soothed, and flattered, and intimidated by their influence, into a great part of this infamous tameness and submission?----"these are serious and alarming questions, and deserve a dispassionate consideration."-this disposition has been the great wheel and the main spring in the american machine of court politics.--we have been told, that "the word _rights_ is an offensive expression." that "the king, his ministry, and parliament, will not endure to hear americans talk of their _rights_." that "britain is the mother and we the children, that a filial duty and submission is due from us to her," and that "we ought to doubt our own judgment, and presume that she is right, even when she seems to us to shake the foundations of government." that "britain is immensely rich, and great, and powerful, has fleets and armies at her command, which have been the dread and terror of the universe, and that the will force her own judgment into execution, right or wrong." but let me intreat you, sir, to pause--do you consider yourself as a missionary of loyalty or of rebellion? are you not representing your k--, his ministry and parliament, as tyrants, imperious, unrelenting tyrants, by such reasoning as this?--is not this representing your most gracious sovereign, as endeavouring to destroy the foundations of his own throne?--are you not representing every member of parliament as renouncing the transactions at _runyn mead_; [the meadow, near windsor, where _magna charta_ was signed,] and as repealing in effect the bill of rights, when the lords and commons asserted and vindicated the rights of the people and their own rights, and insisted on the king's assent to that assertion and vindication? do you not represent them, as forgetting that the prince of orange was created king william by the people, on purpose that their rights might be eternal and inviolable?--is there not something extremely fallacious, in the common place images of mother country and children colonies? are we the children of great britain, any more than the cities of london, exeter and bath? are we not brethren and fellow-subjects, with those in britain, only under a somewhat different method of legislation, and a totally different method of taxation? but admitting we are children, have not children a right to complain when their parents are attempting to break their limbs, to administer poison, or to sell them to enemies for slaves? let me intreat you to consider, will the mother be pleased, when you represent her as deaf to the cries of her children? when you compare her to the infamous miscreant, who lately stood on the gallows for starving her child? when you resemble her to lady macbeth in shakespear, (i cannot think of it without horror) who "had given suck, and knew "how tender 'twas to love the babe that milk'd her." but yet, who could "even while 'twas smiling in her face, "have pluck'd her nipple from the boneless gums, "and dash'd the brains out." let us banish for ever from our minds, my countrymen, all such unworthy ideas of the k--g, his ministry, and parliament. let us not suppose, that all are become luxurious, effeminate and unreasonable, on the other side the water, as many designing persons would insinuate. let us presume, what is in fact true, that the spirit of liberty is as ardent as ever among the body of the nation, though a few individuals may be corrupted.--let us take it for granted, that the same great spirit, which once gave cæsar so warm a reception; which denounced hostilities against john, 'till magna charta was signed; which severed the head of charles the first from his body, and drove james the second from his kingdom; the same great spirit (may heaven preserve it till the earth shall be no more!) which first seated the great grandfather of his present most gracious majesty on the throne of britain, is still alive and active, and warm in england; and that the same spirit in america, instead of provoking the inhabitants of that country, will endear us to them for ever, and secure their good-will. this spirit, however, without knowledge, would be little better than a brutal rage.----let us tenderly and kindly cherish therefore the means of knowledge. let us dare to read, think, speak and write.----let every order and degree among the people rouse their attention and animate their resolution.--let them all become attentive to the grounds and principles of government, ecclesiastical and civil.--let us study the law of nature; search into the spirit of the british constitution; read the histories of ancient ages; contemplate the great examples of greece and rome; set before us the conduct of our own british ancestors, who have defended, for _us_, the inherent rights of mankind against foreign and domestic tyrants and usurpers, against arbitrary kings and cruel priests, in short against the gates of earth and hell.--let us read and recollect, and impress upon our souls the views and ends of our own more immediate forefathers, in exchanging their native country for a dreary, inhospitable wilderness. let us examine into the nature of that power, and the cruelty of that oppression which drove them from their homes. recollect their amazing fortitude, their bitter sufferings! the hunger, the nakedness, the cold, which they patiently endured! the severe labours of clearing their grounds, building their houses, raising their provisions, amidst dangers from wild beasts and savage men, before they had time or money, or materials for commerce! recollect the civil and religious principles, and hopes, and expectations, which constantly supported and carried them through all hardships, with patience and resignation! let us recollect it was liberty! the hope of liberty for themselves and us and ours, which conquered all discouragements, dangers and trials!----in such researches as these, let us all in our several departments chearfully engage! but especially the proper patrons and supporters of law, learning and religion. let the pulpit resound with the doctrines and sentiments of religious liberty.----let us hear the danger of thraldom to our consciences, from ignorance, extream poverty and dependance, in short from civil and political slavery.--let us see delineated before us, the true map of man. let us hear the dignity of his nature, and the noble rank he holds among the works of god! that consenting to slavery is a sacrilegious breach of trust, as offensive in the sight of god, as it is derogatory from our own honour, or interest or happiness; and that god almighty has promulgated from heaven, liberty, peace, and good-will to man!---let the bar proclaim, "the laws, the rights, the generous plan of power," delivered down from remote antiquity; inform the world of the mighty struggles, and numberless sacrifices, made by our ancestors, in the defence of freedom.--let it be known, that british liberties are not the grants of princes or parliaments, but original rights, conditions of original contracts, co-equal with prerogative, and co-eval with government.--that many of our rights are inherent and essential, agreed on as maxims and established as preliminaries, even before a parliament existed.--let them search for the foundation of british laws and government in the frame of human nature, in the constitution of the intellectual and moral world.--there let us see, that truth, liberty, justice, and benevolence, are its everlasting basis; and if these could be removed, the superstructure is overthrown of course.-let the colleges join their harmony, in the same delightful concert.--let every declamation turn upon the beauty of liberty and virtue, and the deformity, turpitude and malignity of slavery and vice.--let the public disputations become researches into the grounds and nature and ends of government, and the means of preserving the good and demolishing the evil.--let the dialogues and all the exercises become the instruments of impressing on the tender mind, and of spreading and distributing, far and wide, the ideas of right and the sensations of freedom. in a word, let every sluice of knowledge be opened and set a flowing. the encroachments upon liberty, in the reigns of the first james and the first charles, by turning the general attention of learned men to government, are said to have produced the greatest number of consummate statesmen, which has ever been seen in any age, or nation. the brooke's, hamden's, falkland's, vane's, milton's, nedham's, harrington's, neville's, sydney's, locke's, are all said to have owed their eminence in political knowledge, to the tyrannies of those reigns. the prospect, now before us, in america, ought, in the same manner, to engage the attention of every man of learning to matters of power and of right, that we may be neither led nor driven blindfolded to irretrievable destruction.----_nothing less than this seems to have been meditated for us, by somebody or other in great britain._ there seems to be a direct and formal design on foot, to enslave all america.--this however must be done by degrees.----the first step that is intended seems to be an entire subversion of the whole system of our fathers, by the introduction of the canon and feudal law, into america.----the canon and feudal systems though greatly mutilated in england, are not yet destroyed. like the temples and palaces, in which the great contrivers of them were once worshiped and inhabited, they exist in ruins; and much of the domineering spirit of them still remains.--the designs and labours of a certain society, to introduce the former of them into america, have been well exposed to the public by a writer of great abilities; and the further attempts to the same purpose that may be made by that society, or by the ministry or parliament, i leave to the conjectures of the thoughtful.--but it seems very manifest from the stamp act itself, that a design is formed to strip us in a great measure of the means of knowledge, by loading the press, the colleges, and even an almanack and a news-paper, with restraints and duties; and to introduce the inequalities and dependencies of the feudal system, by taking from the poorer sort of people all their little subsistence, and conferring it on a set of stamp officers, distributors and their deputies.--but i must proceed no farther at present.--the sequel, whenever i shall find health and leisure to pursue it, will be a "disquisition of the policy of the stamp act."----in the mean time, however, let me add, these are not the vapours of a melancholy mind, nor the effusions of envy, disappointed ambition, nor of a spirit of opposition to government: but the emanations of an heart that burns for its country's welfare. no one of any feeling, born and educated in this once happy country, can consider the numerous distresses, the gross indignities, the barbarous ignorance, the haughty usurpations, that we have reason to fear are meditating for ourselves, our children, our neighbours, in short for all our countrymen, and all their posterity, without the utmost agonies of heart, and many tears. finis. transcriber's notes: 18th century english typography has been modernized for ease of reading, for example, long-s has been rendered using an ordinary s. spelling conventions of the times have been maintained. several misprints and punctuation errors corrected. page 7, added close quotes to end of quotation. page 13, "achievements" spelled "atchievements" left as is. page 26, added close quotes to end of quotation. page 43, "necessay" changed to "necessary". page 77, "extrardinary" changed to "extraordinary". page 87, "achieved" spelled "atchieved" left as is. ligatures removed in ascii version: man[oe]oeuvres to manoeuvres, [oe]conomy to oeconomy. [illustration: the old courthouse about 1920. copy courtesy lee hubbard.] the fairfax county courthouse [illustration] the fairfax county courthouse by ross d. netherton and ruby waldeck published by the fairfax county office of comprehensive planning under the direction of the county board of supervisors in cooperation with the fairfax county history commission july 1977 the following history publications are available from: fairfax county administrative services fairfax building 10555 main street fairfax, va. 22030 703-691-2781 _beginning at a white oak.... the patents and northern neck grants of fairfax county, virginia_--mitchell _carlby_--spann _centreville_: its history and architecture--smith _colchester_: colonial port on the potomac--sprouse _colvin run mill_--netherton _dunbarton, dranesville, virginia_--poland _the fairfax county courthouse_--netherton and waldeck _the fairfax county courthouse_--1800--ocp--brochure _fairfax county in virginia: selections from some rare sources_--ocp _fairfax county tour map_--ocp and history commission _fairfax family in fairfax county: a brief history_--kilmer and sweig _historic preservation for fairfax county_--ocp _historical highlights of bull run regional park_--cooling _huntley_--wrenn _indices to selected maps from hopkins' atlas, 1879_--mcmillion _maplewood_--rafuse _moorefield_--dibacco _mount air_--sprouse _registrations of free blacks, fairfax county, virginia, 1822-1861_--ed. sweig _wakefield chapel_--evans * * * * * _sully: the biography of a house_--gamble book available from the fairfax county park authority * * * * * library of congress catalog card number 77-84441 table of contents illustrations acknowledgments foreword introduction 1 i. fairfax county's early courthouses: 1742-1800 3 ii. the providence courthouse and its related buildings: 1800-1860 12 iii. the county court and its officers 18 iv. the war years: 1861-1865 33 v. the years of rebuilding: 1865-1903 42 vi. the twentieth century courthouse 50 vii. the architecture of the courthouse and its related buildings 58 1. the courthouse complex 58 2. the courthouse 73 3. restoration of the original wing of the courthouse, 1967 87 appendixes a. county court clerks: 1742-1976 107 b. justices and judges: 1742-1976 108 c. portraits in the old courthouse--biographies 117 d. clerk's office specifications, _alexandria gazette_, july 15, 1853 121 e. schedule of reconstruction of the courthouse, 1967 123 list of sources 127 illustrations front cover--courthouse about 1920 back cover--court papers, 1976 five colonial justices of the fairfax county court: george washington; george mason; thomas, sixth lord fairfax; george william fairfax; and bryan, eighth lord fairfax 2 cartograph of alexandria courthouse square 6 surveys of courthouse lot, 1798-1924 15 civil war view, 1862 32 hopkins' map of fairfax court house, 1879 44 marr monument's dedication, 1904 49 the tavern, c. 1932 51 1907 courthouse picture 51 two aerials of the courthouse and county center complex, 1970s 55 clerk's office, 1907 61 county jail, 1886 63 police department, c. 1947 63 naval cannon 67 marr monument 67 war memorial plaques 68 central staircase mural 69 18th century english town and market halls 76 two-story windows, c. 1966; double row windows, 1967 80 courtroom remodeled in 1920 82 central entrance, 1954 addition 83 floor plans 88 three views of the gutted courthouse, 1966 90 two interiors of the courthouse restoration, c. 1968 92 acknowledgments this monograph is one of a series of research reports on the historical and architectural landmarks of fairfax county, virginia. it has been prepared under the supervision of the fairfax county office of comprehensive planning, in cooperation with the fairfax county history commission, pursuant to a resolution of the board of county supervisors calling for a survey of the county's historic sites and buildings. the authors of this report wish to acknowledge with thanks the assistance of lindsey carne, mrs. j. h. elliott, lee hubbard, mrs. jean johnson rust, and mrs. barry sullivan, who provided information and graphics for this publication. also valuable were the comments of the honorable james keith, circuit court judge; mrs. edith m. sprouse; john k. gott; mrs. catharine ratiner; and mayo s. stuntz, all of whom reviewed the manuscript with care prior to its final revisions. special thanks are tendered to the honorable thomas p. chapman, jr. and the honorable w. franklin gooding, former clerks of the courts of fairfax county; the honorable james hoofnagle, present clerk of the courts; and to walter m. macomber, architect of the 1967 reconstruction of the original wing of the courthouse, who granted extensive interviews which filled many of the gaps created by lack of documentary sources. throughout the entire research and writing of this report, the authors received valuable guidance and comments from the members of the fairfax county history commission and assistance from the staffs of the fairfax county public library and the virginia state library. finally, the authors acknowledge with thanks the help of jay linard, mrs. verna mcfeaters, ms. virginia inge, ms. irene rouse, ms. annette thomas, and ms. robin pedlar in manuscript preparation. ross netherton ruby waldeck foreword _the fairfax county courthouse_ is an important addition to the historical record of fairfax county, virginia. it brings together in one volume a history of the fairfax county courthouses and a manual of the organization and operation of governmental affairs centered within them over the years. a particular insight with regard to the early years of the county is evident. dr. netherton and mrs. waldeck describe the consequential role the courthouse enjoyed as a social center as they examine the governmental role which made it the centerpiece of fairfax county. the reader will note that the early fairfax county officials gained an understanding of the importance of democratic government in our nation through their participation in county government while the people they served developed a sense of community through their interaction at the courthouse. the present courthouse stands as a monument to the governmental and social prosperity fairfax county has enjoyed. this text documents the story of the building which has stood at the center of almost two centuries of political life in fairfax county. the extensive footnotes will prove an invaluable aid to scholars exploring the history of the county. history students in our county's schools will find _the fairfax county courthouse_ an important addition to their reading lists. we are all indebted to ross netherton and ruby waldeck for their contribution in casting such a revealing light upon the roots of fairfax county, her people and government. james e. hoofnagle clerk of the fairfax county court introduction each generation of americans has acknowledged its debt to virginia's leaders whose skill in politics was demonstrated so well in a half-century that saw independence achieved and a new republic established. they were products of a system of government which itself had been perfected over more than 150 years before the colonies declared their independence. to these men--george washington, george mason, thomas jefferson, patrick henry, john marshall, george wythe, james madison, and the carters--the county court was an academy for education in the art of government. important as it was to sit in the house of burgesses at williamsburg, the lessons of politics and public administration were learned best in the work of carrying on the government of a county. virginia counties were unique in colonial history, for the considerable degree of autonomy enjoyed by the county courts gave them both a taste of responsibility for a wide range of public affairs and a measure of insulation from the changes of political fortune which determined events in williamsburg, and later richmond. in virginia, the county courthouse was the focal point of public affairs. usually built in a central location, with more regard for accessibility from all corners of the county than for proximity to established centers of commerce, the courthouse came to be a unique complex of buildings related to the work of the court. in time, most of these clusters of buildings grew into towns or cities, but throughout the eighteenth and nineteenth centuries many places shown on virginia maps as "court house" consisted literally of a county courthouse and its related structures standing alone beside a crossroads. on court days, however, the scene changed. the monthly sessions of the court, conducted in colonial times by the "gentleman justices", provided opportunities to transact all manner of public business--from issuing licenses and collecting taxes to hearing litigation and holding elections. they also were social events and market days; there people came to meet their friends, hear the news, see who came circuit-riding with the justices, sell their produce, and buy what they needed. in the two centuries since independence, profound changes have occurred in all phases of life that were centered in the courthouse. in fairfax county, the pace and extent of these changes have been extensive. architectural historians who note uniqueness in the fact that virginia courthouses developed as a complex of related buildings may see ominous symbolism in the fact that today one of the structures in the cluster around fairfax county's courthouse is a modern fifteen-story county office building. yet, at the same time this office building was being planned, workmen were rehabilitating the original section of the courthouse to represent its presumed appearance in an earlier time, thus providing a reminder of the historic role of county government in virginia. [illustration: five colonial justices of the fairfax county court--george mason.] [illustration: five colonial justices of the fairfax county court--george washington.] [illustration: five colonial justices of the fairfax county court--bryan, later eighth lord fairfax.] [illustration: five colonial justices of the fairfax county court--thomas, sixth lord fairfax.] [illustration: five colonial justices of the fairfax county court--george william fairfax.] chapter i fairfax county's early courthouses, 1742-1800 once the survival of the colony of jamestown seemed assured, provision for the efficient and orderly conduct of public affairs received attention. the jamestown colonist and his backers in the virginia company of london were familiar with county government structure in england, and from early colonial times the county was the basic unit of local government in virginia. in the concept of county government, the role of the county court was central. as early as 1618, governor sir george yeardley established the prototype of the county court in his order stating that "a county court be held in convenient places, to sit monthly, and to hear civil and criminal cases."[1] the magistrates or justices who comprised the court were, as might be expected, the owners of the large plantations and estates in the vicinity, and all were used to administering the affairs of the people and lands under their control. accordingly, administrative duties as well as judicial duties were given to the court, and the justices' responsibilities included such matters as the issuance of marriage licenses, the planning of roads, and assessment of taxes.[2] colonial virginia statutes specified that each county should "cause to be built a courthouse of brick, stone or timber; one common gaol, well-secured with iron bars, bolts and locks, one pillory, whipping post and stocks."[3] in addition, the law authorized construction of a ducking stool, if deemed necessary, and required establishment of a 10-acre tract in which those imprisoned for minor crimes might, on good behavior, walk for exercise. in addition, buildings were customarily provided to house the office of the clerk of the court, and to accommodate the justices of the assize and their entourage of lawyers and others who accompanied them as they rode circuit among the counties of the colony. in england, the "assizes" were sessions of the justices' courts which met, generally twice a year in each shire, for trial of questions of fact in both civil and criminal cases. the county courts in colonial virginia continued to be called assizes for much of the 18th century. when events moved toward the partition of prince william county to create the county of fairfax, the journal of the governor in council in williamsburg recorded the following entry: saturday, june ye 19th, 1742 .... ordered that the court-house for fairfax county be appointed at a place call'd spring fields scituated between the new church and ox road in the branches of difficult run, hunting creek and accotinck.[4] whether this was the first seat of the fairfax county court is not positively known. it is possible that the first sessions of the court may have been held at colchester. although no records of the transactions at these sessions have been found, an early history of the county cites entries in an early deed book which order the removal of the county court's records from colchester to a new courthouse more centrally located in the county.[5] be this as it may, the plan to establish a courthouse which was formalized by the governor in council apparently was deliberately designed to accommodate the increasing settlement of areas inland from the river plantations--an interest which the proprietor, thomas sixth lord fairfax, shared. "spring fields", the site of the court house, was part of a tract of 1,429 acres owned in 1740 by john colvill, and conveyed by him in that year to william fairfax.[6] in this tract were numerous springs forming the sources of difficult run, accotinck creek, wolf trap run, scott's run and pimmit run. it was high ground, comprising part of the plateau area of the northern part of the county, and the site selected for the courthouse had a commanding view for many miles around. the location specified in the council order was on the new church road (later known variously as the eastern ridge road, the alexandria-leesburg road, or the middle turnpike) running from the falls church to vestal's gap in the blue ridge mountains, at a point where this road intersected the ox road, running north and west from the mouth of the occoquan river. a map of 1748 also shows roads running from the courthouse west in the direction of aldie, and southwest toward newgate (now called centreville).[7] the site was roughly equidistant for persons coming from alexandria, newgate, and the goose creek settlements, but somewhat farther for those from colchester. the land on which courthouse was built was conveyed to the county by deed from william fairfax, dated september 24, 1745,[8] and described six acres "where the court house of the said county is to be built and erected," to be held by the county "during the time the said court shall be located there but no longer." according to a survey made in march 1742, the site was a rectangle, 40 poles long by 24 poles wide, described in metes and bounds starting from a post on the west side of "court house spring branch".[9] no other landmarks or monuments capable of surviving to modern times were mentioned in the deed, and today the site of the springfield courthouse can be determined as approximately one-quarter mile south and west of tyson's corner. having in mind the statutory requirements, it is presumed that the complex of buildings at springfield consisted of a courthouse, a jail with related structures, a clerk's office, and one or more "necessary houses" (outhouses), all conveniently located with respect to each other and the roads. county records show surveys for two ordinaries (inns) located on or adjacent to the courthouse tract. one of these, surveyed in 1746, was a two-acre parcel containing john west's ordinary and related buildings, and the other, also surveyed in 1746, was for one acre within the courthouse tract on which john colvill was allowed to build an ordinary. no contemporary descriptions of the courthouse have survived, but it is likely that the buildings were of log construction, on stone foundations, with brick chimneys. a 16-foot-square addition to the courthouse was ordered in 1749, with the specification that it have a brick chimney.[10] an item from the court order book, dated december 23, 1750, states: on motion of the clerk of the court that papers lying on the table are frequently mixed and confused, and many times thrown down by persons crowding in and throwing their hats and gloves on the said table, the ill consequences thereof being considered, it is ordered that charles broadwater, gent. agree with some workman to erect a bar around the said clerk's table for the better security of the books and papers.[11] [illustration: cartograph of the market square and fairfax county courthouse in alexandria, as they might have appeared in the eighteenth century. drawn by worth bailey, 1949.] in 1750, fairfax county's western border closely approached the edge of english settlement in virginia. settlements in the western part of the county were growing far less rapidly than in the centers of population in the eastern part. alexandria, established as a town in 1749, showed signs of becoming a major seaport, and its merchants complained that travel to the courthouse at springfield was burdensome, and that service of process and execution of writs was well-nigh impossible.[12] they actively campaigned for moving the courthouse to alexandria, and overcame the opposition of the "up-country" residents by offering to provide a suitable lot and build a new courthouse in alexandria. alexandria prevailed in 1752, and the records of the colonial governor in council showed the following entries: march 23, 1752. a petition subscribed by many of the principal inhabitants of fairfax county for removing the court house and prison of that county to the town of alexandria, which they propose to build by subscription, was this day read, ordered that the justices of the said county be acquainted therewith and required to signify their objection against such removal, if they have any, by the 25th of next month, on which day the board will resume the consideration thereof. and: april 25, 1752. upon the petition of many of the inhabitants of fairfax county for removing the court house and prison of the said county by subscription to the town of alexandria, the board being satisfy'd that it is generally desired by the people, and on notice given, no objection being made to it, ordered that the court house and prison be removed accordingly to the town of alexandria.[13] by may 1752, the county court's minute book carried the final record of business transacted at the spring fields courthouse. in alexandria, the townspeople set aside two lots in the block of the original town survey bounded by fairfax street, cameron street and king street.[14] by ordinance, all buildings in the town had to face the street and have chimneys of brick or stone, rather than wood, to prevent fires.[15] the building erected as the new courthouse faced fairfax street, between cameron and king streets. a prison was built behind the courthouse building in the dedicated lots. the gallows, however, are said to have remained at spring fields for some time.[16] neither the architect nor the builder of the courthouse at alexandria are known, although there is evidence that john carlyle helped with the building of both the courthouse and market square.[17] in the last half of the eighteenth century, alexandria prospered as the principal seaport of the northern neck. its wharves and warehouses were busy, and its politics were enlivened by the presence of some of the colonies' most distinguished residents and visitors. as tobacco gave way to diversified farming, wheat and flour comprised two of alexandria's major commodities of trade, and enforcement of the flour inspection and marking laws became an important governmental function. criminal justice was dispensed publicly in the courthouse and jail yard, furnishing moral lessons for both the culprits and observing crowds. it was in this jail, too, that tradition has it jeremiah moore, a dynamic baptist minister of colonial virginia, delivered a sermon to crowds outside his cell window while he was confined for preaching without a license.[18] the court records for the years 1752 to 1798 show the names of many virginians who were leaders in the war of independence and the subsequent establishment of the new state government. independence did not significantly affect the judicial system, however, and, except for their new allegiance, state and local officials conducted public business much as they had in the 1760's. during the years of war, however, the courthouse suffered substantially because of lack of maintenance. after the war, repairs frequently were postponed due to arguments over whether the state or locality should raise the money for them. thus, the court records of the post-war period show frequent references to the need for repairs on the courthouse and jail,[19] most, apparently, without success. there were more serious questions being raised about the future of the courthouse in alexandria's market square. alexandria no longer was central to the county's most important interests. its port was losing trade to rivals, principally baltimore, and the voice of the growing numbers of settlers in the western part of the county complained that alexandria merchants gained at the expense of others by having the court meet in their town. george mason of gunston hall felt that alexandria politicians were building up too strong a hold on the machinery of county government, and sought the aid of members of the general assembly to arrange for changing the location of the courthouse.[20] finally, in 1798, the virginia general assembly directed that fairfax county's court house be relocated to a site closer to the center of the county.[21] the search for a suitable site had gone on for almost ten years previously and might not have been concluded even then if its urgency had not been sharpened by the passage of congressional legislation leading to creation of the district of columbia, and the threat that alexandria would fall within the boundaries of the new federal capital. since by law the county court could not meet outside the boundaries of the county, no further delay could be permitted. land was acquired, a new courthouse was built, and the county court moved into its new quarters early in 1800.[22] notes for chapter i [1] albert o. porter, _county government in virginia_, (new york: columbia university press, 1947), p. 13. [2] _a hornbook of virginia history_, (richmond: virginia state library, 1965), p. 64. [3] virginia, laws, 1748, c. 7, revising earlier statutes on courts enacted in 1662 and 1679. [4] wilmer hall (ed.), _executive journals of the council of colonial virginia_, (richmond: virginia state library, 1945), v. 93. [5] _industrial and historical sketch of fairfax county_, (fairfax: county board of county supervisors, 1907), p. 45. [6] northern neck grants book, liber e, p. 182. william fairfax was a cousin of the proprietor, and acted as his agent. [7] the so-called truro parish partition map, purporting to lay out boundaries for a division of truro parish to create a new parish for the western settlements. see _virginia magazine of history and biography_, xxxvi, 180. [8] fairfax county deed book, liber a, no. 2, p. 494. [9] fairfax county deed book, liber a, pt. 1, p. 52, survey, march 17, 1742. [10] e. sprouse (ed), fairfax county abstracts: court order books, 1749-1792, citing order book, 1749-54, december 26, 1749, p. 49. [11] _ibid._, p. 131. charles broadwater was one of the justices. [12] there was some reason to support this, apparently, for in 1748 the general assembly reduced the number of court meetings to four per year for these reasons. see virginia, laws, 1742, c. 32; laws, 1748, c. 59; laws, 1752, c. 7. [13] _virginia gazette_, reprinted in _william & mary quarterly_, xii, 215. [14] cited in mary g. powell, _the history of old alexandria, virginia from july 13, 1749 to may 24, 1861_, (richmond: william byrd press, 1928), p. 35. [15] _ibid._, p. 22. [16] jeanne rust, _history of the town of fairfax_, (washington: moore & moore, 1960), p. 30. [17] gay m. moore, _seaport on the potomac_, (richmond: garrett & massie, 1949), p. 12. [18] william c. moore, "jeremiah moore: 1746-1815," _william & mary quarterly_, 2d ser., xiii, 18, 21. tradition also holds that jeremiah moore was defended by patrick henry, but this has not been verified. [19] robert anderson, "the administration of justice in the counties of fairfax, and alexandria and the city of alexandria", _arlington historical magazine_, ii, no. 1 (october 1961), 19-21. [20] "letters of george mason to zachariah johnston", _tyler's quarterly review_, v (january 1924), 189. [21] virginia, laws, 1797-98, c. 37; shepherd, _statutes at large_, ii, 107. [22] during the 1780's the court was compelled to leave the original courthouse building for temporary quarters. harrison, _landmarks_, p. 343, states that during this period the county court met in the alexandria town house, located next door, which also housed the hustings court. he also states that the clerk of the county court set up his offices in a nearby school building. the _alexandria gazette_, november 13, 1878, reported the demolition of an old house on the south side of duke street, east of st. asaph's street, which it stated had served as the office of the clerk of alexandria's hustings court and the fairfax county court commencing in the spring of 1793. chapter ii the providence courthouse and its related buildings: 1800-1860 _location and construction_ the resolution of the general assembly ordering relocation of the courthouse was not specific as to the site on which it would be built. accordingly, in may 1790, the court appointed a commission to inspect a site near ravensworth, within a mile of the crossroads at price's ordinary, and to negotiate for purchase of a two-acre parcel.[23] the commissioners' report was not favorable to the site, however, and negotiations for other land continued until, in may 1798, a group of commissioners was appointed to inspect a site at earp's corner (between a road which later became the little river turnpike and the ox road), owned by richard ratcliffe.[24] the commissioners reported favorably, and ratcliffe was persuaded to sell four acres to the county for one dollar. a sale was made, and the deed recorded on june 27, 1799.[25] work had begun on the new courthouse some six months earlier, as indicated by the following notice appearing in the _columbia mirror and alexandria advertiser_: the fairfax court house commissioners have fixed on thursday the 28th instant for letting out the erection of the necessary public buildings to the lowest bidder. as they have adopted the plan of mr. wren, those workmen who mean to attend may have sight of the plan. charles little david stuart william payne james wren charles minor[26] the successful bidders at this event were john bogue, a carpenter and builder newly arrived in the united states, and his partner, mungo dykes. they completed the construction of the courthouse late in 1799, and on january 27, 1800, the commissioners reported to the county court that they had received the "necessary buildings for the holding of the court", and found them "executed agreeably to the contract".[27] within the four-acre courthouse tract, a half-acre was laid off to provide space to build an office for the clerk of the court.[28] this original tract did not provide enough ground for the jail yard and other grounds comprising the courthouse compound.[29] accordingly, in march 1800 the court ordered william payne to prepare a new survey of the compound, enlarged to accommodate all of the facilities required by the law. the area of this new survey was ten acres, capable of accommodating courthouse, jail, clerk's office, gallows and pillory, a stable, a storehouse and possibly an ordinary.[30] the equipping of the courthouse and transfer of the court's records were accomplished by march 1800, so that the _columbia mirror and alexandria advertiser_ was able to carry a notice its march 29th edition that the county court of fairfax is adjourned from the town of alexandria to the new court house, in the center of the county, where suitors and others who have business are hereby notified to attend on the 3d monday in april next. thus, the first recorded meeting of the court in the new courthouse was on april 21, 1800.[31] meanwhile, in alexandria, the mayor and council adopted a resolution giving to peter wagener the title to the bricks of the old courthouse on alexandria's market square as indemnity for pulling it down.[32] _fairfax courthouse and the town of providence_ the central location of the new courthouse and the improvement of its accessibility through the construction of several turnpike roads commencing in the early 1800's, led naturally to the growth of a community around the courthouse. in the vicinity of the crossroads a few buildings antedated the courthouse. earp's store, probably built in the late 1700's, was one such building, as were dwelling houses reputedly built by the moss family and thomas love.[33] development of more nearby land was not long delayed. in 1805 the general assembly authorized establishment of a new town at earp's store, to be named providence.[34] the future growth of the town was forecast in a plat laying off a rectangular parcel of land adjacent to the little river turnpike into nineteen lots for building.[35] settlement during the next few decades was relatively slow. rizen willcoxen built a brick tavern across the turnpike from the courthouse.[36] a variety of "mechanics" and merchants opened their workshops and stores to serve the local residents and travellers on the turnpike, and, on the north side of the turnpike, a store was established by a man named gerard boiling.[37] also, a school for girls occupied land across the turnpike from the present truro episcopal church, and, east of the courthouse crossroads, a frenchman named d'astre built a distillery and winery and developed a vineyard.[38] martin's 1835 _gazetteer of virginia and the district of columbia_ described fairfax court house post office as follows: "in addition to the ordinary county buildings, some 50 dwelling houses (for the most part frame buildings), 3 mercantile stores, 4 taverns, and one school."[39] the "mechanics" located in the town included boot and shoe makers, saddlers, blacksmiths and tailors. the town's population totalled 200, of which four attorneys and two physicians comprised the professions. somewhat later, the town's industry was augmented by establishment of the cooper carriage works on the turnpike west of the courthouse.[40] this growth of services around the seat of the county government was an added inducement for the county's residents to gather in town when court was in session, to trade, transact their business at the courthouse, and exchange the news of the day. by the 1830's the schedule of court days had expanded to include sessions of the county court (3d monday each month), the quarter sessions (in march, june, august and november), and the circuit superior court (25th of may and october).[41] at these times the court would sit for several days--as long as necessary--to complete the county's business. a quorum of the total panel of appointed justices was necessary to conduct the court, but this number generally was small enough so that no hardship was suffered by those who had to leave their private concerns. in every third month, the meetings of the court would also be the occasion for convening the successor to the colonial courts of the quarter sessions, at which criminal charges not involving capital punishment were tried. throughout the first half of the nineteenth century, the sessions of the county court continued to be the chief feature of life in the town of providence, or fairfax court house, as it frequently was called. when the court was not in session, the regular passage of carriages, wagons, and herds along the little river turnpike was the main form of contact which residents had with areas outside the locality. this situation continued even after the coming of the railroads, for when the orange & alexandria railroad was chartered in 1848, its route was laid out several miles south of providence. thus, the nearest rail stations for the courthouse community were at fairfax station, on the orange & alexandria railroad, and at manassas, where the manassas gap railroad left the orange & alexandria and ran to harrisonburg.[42] [illustration: four acres of richard ratcliffe's land near caleb earp's store laid off for the courthouse and other public buildings. record of surveys, section 2, p. 79, 1798.] [illustration: ten acres of land surrounding the courthouse laid off for the prison bounds. record of surveys, section 2, p. 93, 1800.] [illustration: ten acres of land surrounding the courthouse intended for the prison bounds. fairfax county deed book v-2, p. 208, 1824.] [illustration: one-half acre, part of the four-acre courthouse lot, laid off for the clerk of the county and his successors. record of surveys, section 2, p. 115, 1799.] notes for chapter ii [23] fairfax county court order book, 1789-1791, p. 93. [24] _ibid._, pp. 189-191. [25] fairfax county deed book b-2, pp. 373-377. [26] _columbia mirror & alexandria advertiser_, june 19, 1798. john bogue had arrived in the united states with his family in 1795. on june 20, 1795, the _alexandria gazette_ published his signed statement thanking the captain of the ship "two sisters" for a good voyage. in the august 1, 1795 issue of the _gazette_, he advertised as a joiner and cabinet maker on princess street near hepburn's wharf, "hoping to succeed as his abilities shall preserve him deserving." [27] fairfax county deed book, b-2, p. 503. [28] fairfax county record of surveys, 1742-1850, p. 115. [29] fairfax county deed book, b-2, p. 503. [30] interview with former clerk of courts, thomas chapman of fairfax, virginia, february 13, 1970. [31] one of the items to come before the court at this session involved winding up the county's contract with john bogue and mungo dykes. the court's clerk, robert moss, was summoned to appear and show cause why he had not paid the contractors in conformance with the commissioners' report accepting the buildings. moss produced a receipt for this payment, signed by mr. bogue's agent, who apparently had not passed it along to his principal. fairfax county court order book, 1799-1800, p. 509. [32] powell, _old alexandria_, p. 38. [33] elizabeth burke, "our heritage: a history of fairfax county", _yearbook of the historical society of fairfax county_, 1956-7, 5:4. [34] _ibid._, 32. [35] fairfax county deed book, m-2, p. 56. [36] rust, _town of fairfax_, p. 3. [37] gerard bolling was the father-in-law of richard ratcliffe who had provided the four-acre tract on which the courthouse had been built. rust, _fairfax_, p. 31. [38] _ibid._ [39] joseph martin, _gazetteer of virginia and the district of columbia_, (charlottesville, 1835), p. 168. the name "providence" apparently was less favored than the traditional virginia style of referring to the seat of county government. [40] rust, _fairfax_, p. 37. [41] martin, _gazetteer_, pp. 168-169. [42] marshall andrews, "a history of railroads in fairfax county", _yearbook of the historical society of fairfax county_, iii (1954), 30-31. chapter iii the county court and its officers _the functions and officers of the colonial court_ in colonial virginia local government was centered in the county court. its origins as a political and social institution have been attributed to various prototypes in tudor and earlier english history. by the time fairfax county was established in 1742, this institution and its functions in colonial virginia had been clearly formulated and accepted.[43] the county court evolved from the colony's original court established at jamestown and consisting of the governor and council sitting as a judicial tribunal. in 1618, the governor ordered courts to be held monthly at convenient places throughout the colony to save litigants the expense of traveling to jamestown. steadily the numbers of these courts increased and their jurisdiction expanded until, by the end of the seventeenth century, these local courts could hear all cases except those for which capital punishment was provided. in effect, their jurisdiction combined the contemporary english government's king's bench, common pleas, chancery, exchequer, admiralty, and ecclesiastical courts. during this period the local courts acquired numerous non-judicial responsibilities connected with the transaction of public and private affairs. because of both tradition and convenience, the county court was the logical agency to set tax rates, oversee the survey of roads and construction of bridges, approve inventories and appraisals of estates, record the conveyance of land, and the like. therefore, the court's work reflected a mixture of judicial and administrative functions, and the officers of the court became the chief magistrates of the crown and of their communities. once this pattern of authority and organization was developed, it continued with very few basic changes throughout the eighteenth and most of the nineteenth centuries. highest in the hierarchy of the officers of the county and the court were the justices. originally designated as "commissioners", and, by the 1850's referred to as "magistrates", their full title was "justice of the peace" after their english counterparts of this period.[44] popular usage in virginia, however, fostered the custom of speaking of the members of the court as "gentleman justices". they were both the products and caretakers of a system that placed control of public affairs in the hands of an aristocratic class, and at any time in the county's history up to mid-nineteenth century a list of the county's justices was certain to include the best leadership the county had. appointments were for life, and lacked any provision for compensation. service on the court was, therefore, considered an honorable obligation of those whose position and means permitted them to perform it. that this was considered a serious and active responsibility was indicated by the fact that justices could be fined for non-attendance at court.[45] through the colonial period and well after the war of independence the justices of the county court were appointed by the governor, and, although episodes during this period indicated the recurrence of friction between the governor and general assembly over the power to make these appointments, neither the local court nor the assembly was able to assert permanently its claim to participate in the appointment process.[46] the number of justices of the county court varied considerably in different counties and times. by law the number was set at eight members; yet in 1769 fairfax county had 17 justices, and appeared to be typical of other counties in the region.[47] appointments to the county court in some instances seemed almost hereditary, for when a justice of one of the prominent local families died or retired to attend to other interests it frequently occurred that his place was taken by a younger relative. historian charles sydnor has noted that during the twenty years prior to the war of independence three-fourths of the 1600 justices of the peace appointed in virginia came from three hundred to four hundred families.[48] directly or indirectly, the justices of the county court influenced the selection of all other county officers. the clerk of the court was elected outright, but others--including the sheriff, coroner, inspectors and commissioners for special duties, and militia officers below the rank of brigadier--were commissioned by the governor from lists submitted by the justices. the office of clerk of the county court presumably dates from the origin of the court itself, for references to clerk's fees are found in the law as early as 1621,[49] and authority for appointment by the governor is noted in 1642.[50] from the tables of fees authorized by law, one may see that the clerk performed a wide range of functions growing out of the work of the court. these included issuing orders for all stages of court proceedings, taking depositions and inventories, recording documents, and administering or probating estates of all kinds. in addition, the county's records of births, deaths and marriages were maintained from reports made to the clerk. in time, some of the tasks of issuing certificates--such as marriage licenses--which started as duties of the court were turned over to the clerk to perform.[51] frequently the clerk could and did exercise great influence with the justices in the handling of legal matters. as the members of the court were laymen, it often occurred that the clerk was the only person who was learned in the law, and his advice must have been a determining factor in many situations. his tenure in office also strengthened his position of influence, for it was customary to retain clerks in office for long periods of time, during which they had daily contact with the workings of the law and events in the county. unlike the justices, who came from all parts of the county and seldom were present except on court days, the clerk was much more available at the courthouse, and so generally was the first to hear news from the colonial capital or the outside world. as a result, the clerks of the court were consulted on a variety of matters whenever a justice was not available. fees charged for performing the various services connected with the work of the court made up the income of the clerk, and occasionally the same person might hold the positions of clerk and surveyor, notary, or special commissioner. under certain circumstances, clerks also could practice law, and all of these sources combined to produce an income which was for the times comfortable. in the eighteenth century, two significant changes in the law prescribing the clerk's office occurred--it was made a salaried position, and the county court was given full authority to appoint the clerk--but in other respects the office was changed very little either by the passage of time or the transformation from colony to commonwealth. ranking roughly equal to the clerk in importance to the operations of county government was the sheriff. the office of sheriff appeared when counties began to be established in the 1630's; and until after the war of independence, sheriffs were appointed by the governor on recommendation of the county court. almost from the beginning, too, it appears to have been customary to appoint deputies or "under-sheriffs". so it is not surprising to find that after 1661 it was customary for the office of the sheriff to rotate annually among the members of the court who, in turn, appointed their deputies directly. but in the eighteenth century this system proved too disruptive, and deputies were retained throughout several terms of sheriff's appointments.[52] from the beginning the sheriff and his deputies were compensated by fees which they collected for a wide variety of duties. these ranged from tasks connected with execution of the court's orders in criminal cases, to enforcement of the law and administration of the jail. in addition, the sheriff was due a fee from a master whose runaway servant or employee he apprehended and returned, or for collecting private debts or administering corporal punishment to servants for their owners.[53] sheriffs also collected the levies which financed county government. however, being subject to the pressures of their own circumstances, there often was a tendency to give first priority to activities which brought in their own fees. this led the general assembly to require that sheriffs collect public levies before they take any fees for themselves, and to prescribe a number of other rules for improvement of the conduct of their offices.[55] the role of the sheriff in the tax collection process always was a difficult one. the procedure for financing the county, initially, was for the justices simply to compile lists of their expenses and the freeholders of the county, compute how much was needed from each freeholder to cover the cost of government, and direct the sheriff to collect it. when the sheriff made his return to the court he was entitled to deduct a percentage as his commission.[56] however, revenue was often not collected, either because the job was farmed out to others who defaulted, or the county was too poor, or its residents were scattered and could not be found.[57] these problems ultimately led the general assembly to establish other officers whose exclusive duties were the levying and collecting of revenue, but throughout the seventeenth and eighteenth centuries the sheriff performed a central role in the revenue process. the sheriff was also the custodian of the county jail and its prisoners. he had the authority to decide on and collect bail, and he was liable for a fine if a prisoner escaped. he appears generally to have taken his responsibility for the county jail lightly, for there is evidence of widespread contracting for others to provide the guard for the jail and the food for the prisoners. other officials who were part of the colonial county government performed specialized functions, but unlike the clerk and sheriff, took no part in the general administration of county business. the office of county surveyor was created early in the seventeenth century to meet the obvious need for accurate measurement and recording of land. initially, the surveyor was appointed by the county court, and sometimes treated as an additional duty of the clerk or sheriff. however, by the end of the eighteenth century a significant change had occurred in the legislation which called for appointment by the governor after a candidate had been examined and approved by the faculty of the college of william & mary. by 1783, therefore, the surveyor became the first county official to be required to show professional competence as a condition of appointment.[58] the office of constable appeared in 1645, and may be described as similar to that of sheriff, except that it served the court of a single justice.[59] constables were appointed by the justices of the county court and served in precincts delineated by the justices. the function of coroner in colonial virginia was similar in all essential respects to that in england at that time, that is, to represent the crown by investigating the circumstances of unexplained deaths. originally, this function was performed by the justices, acting without fee. however, by the 1670's, coroners were being appointed by the governor, and authorized to collect fees for their services from the estate of the deceased or, lacking that, from the county. in the absence of the sheriff, the coroner could be designated by the court to perform the duties of the sheriff's office.[60] roughly a century after the appearance of the coroner, the next significant addition to the machinery of county government came with the creation of the commissioners of the tax. forced by the increased military expenses of the 1760's and 1770's[61] to find new sources of revenue, virginia created an official to take over the specialized function of assessment of property for tax purposes. he was elected by the freeholders of the county. in office, his task became one of laying off the county into districts, assessing property, and notifying the owner of the tax due. the commissioners of the tax were created in 1777, and lasted until 1782 when a new official, the commissioner of the revenue was established.[62] the new commissioner took responsibility for making assessments of taxable property under a simplified procedure, and the office has remained as a unique feature of virginia's local government to the present time. _court days_ as the institution of the county court grew during the seventeenth and eighteenth centuries and became the hub of county government, the monthly sessions of the court furnished an opportunity for general gatherings of the county's residents and visitors to transact both public and personal business. a scene that must have been typical of almost any virginia county in the early nineteenth century has been described by historian john wayland as follows: court day once a month was looked upon as a great event; everyone that could leave home was at hand. it was a day of great interest; farmers coming in with their produce, such as butter and eggs, and other articles which they exchanged for groceries and dry goods. the streets around the courthouse were thronged with all sorts of men; others, on horseback, riding up and down trying to sell their horses. men in home made clothes, old rusty hats that had seen several generations, coarse shoes and no stockings, some without coat or vest, with only shirt and pants.... this was a day to settle old grudges. when a man got too much whiskey he was very quarrelsome and wanted to fight.... it was, also, a great day for the gingerbread and molasses beer. the cake sellers had [tables] in front of the courthouse, spread with white cloths, with cakes piled high upon them and with kegs of beer nearby. i have seen the jurymen let down hats from the windows above, get them filled with gingerbread and a jug of beer sent up by rope. about four or five o'clock the crowd began to start for home.[63] for anyone who had business with the court, whether he or she came as a petitioner or a penitent, the justices, clerk, sheriff, and other officials represented the presence of power and authority as colonial virginia knew it. but it was a presence in which men stood on little ceremony or formality with each other. except in unusual circumstances all were likely to be laymen, for in colonial virginia there was little formal education in the professions and, at most, one might have attended lectures at the college of william & mary or a school in england. if the gentlemen justices were widely read in history, philosophy, government and literature--as well they might be--these advantages of their means and leisure did not destroy their appreciation for the issues they were asked to decide. for in their own right they were planters who had to face and deal with these issues in their own lives. accordingly, their decisions, as reflected in the minutes of their sessions, were based on this realism which comes from personal experience. yet it remained true that the gentlemen justices of the county court were, for most practical purposes, beyond any control of the community they governed. any complaint about the manner in which the justices conducted their business could only be directed to the governor.[64] should the court cease to function for long periods of time because of quarreling among the justices, or should the occurrence of an emergency require replacement of justices, the freeholders of the county had no method of dealing with their problem except through the pressure of public opinion.[65] even with the best of good will among the members of the court, they could not escape the usual difficulties of handling legal matters before a bench of lay judges, who not only lacked professional training, but were handicapped by the scarcity and cost of law books.[66] decisions which seemed wrong could, from earliest colonial times, be appealed to the governor and general court. later the establishment of district courts, and their successors the circuit courts, provided an intermediate tribunal for determining matters which turned on points of law. but the business of the gentlemen justices on court days was a mix of legal and administrative matters, and in the latter area of activity there was no appeal. _election days_ among the non-judicial activities carried on at the courthouse, none was as colorful and few were more important than elections of members of the house of burgesses. elections were ordered by writs issued by the governor, and in each county they were conducted by the sheriff. unless reasons of the greatest gravity prevented it, the polling place was the county courthouse.[67] voting, or "taking the poll" as it was called, was conducted in the court chambers, or, in warm weather, in the courthouse yard, with the sheriff presiding at a long table. on either side of the sheriff were justices of the court, and at the ends of the table were the candidates and their tally clerks. the sheriff opened the election by reading the governor's writ and proclaiming the polls open. if there was no contest or a clearly one-sided election, the sheriff might take the vote "on view"--that is, by a show of hands of those assembled at the courthouse. generally, however, a poll of the individual voters was taken. as the polling went on, each freeholder came before the sheriff when his name was called and was asked by the sheriff how he voted. as he answered, the tally clerk for the candidate receiving the vote enrolled it and the candidate, in his turn, generally acknowledged the vote with a bow and expression of appreciation. at the close of the polling a comparison of the tally sheets showed the winner. this method of voting enhanced the excitement of a close election, and, since elections frequently were held on court days when many people came to the courthouse on other business, activity outside the courthouse sometimes was spirited. wagers were offered and taken, arguments broke out and fights sometimes followed.[68] those attending the elections usually were in good spirits, for they were aided by the custom of the candidates to provide cider, rum punch, ginger cakes, and, generally, a barbecued bullock or pigs for picnic-style refreshment of the voters waiting at the courthouse.[69] the candidates and their friends also kept open house for voters traveling to the courthouse on election day, offering bed and breakfast to as many as came. on election night, the winning candidates customarily provided supper and a ball for their friends and other celebrants.[70] the law was explicit that no one should directly or indirectly give "money, meat, drink, present, gift, reward or entertainment ... in order to be elected, or for being elected to serve in the general assembly",[71] but the practice of treating the voters on election day was deeply rooted in virginia's political tradition. thus the law was interpreted as only prohibiting one offering refreshment "in order to get elected"--something extremely difficult to prove--but not preventing one from treating his friends. so, while occasionally voices were heard to condemn candidates for "swilling the planters with bumbo",[72] or bemoan the "corrupting influence of spiritous liquors, and other treats ... inconsistent with the purity of moral and republican principles", the complainants almost always turned out to be candidates who themselves had recently been rejected at the polls.[73] _the transition from colony to commonwealth_ the war of independence caused little change in virginia's system of county government. the county court system was carried over into the state constitution of 1776 with only the oath of office changed to call for support and defense of the constitution and government of the commonwealth of virginia.[74] the general assembly became the successor to most of the functions of the colonial house of burgesses and governor in council, but significantly the principle of the separation of powers established for the commonwealth was not extended to the counties. thus, the mix of powers, privileges and duties which comprised the authority of the gentlemen justices in colonial times was continued, as was the custom of appointment for life. how little the transition from colony to commonwealth changed the justices' own view of their position was illustrated in 1785 when the new governor issued new commissions reappointing the justices of fairfax county's court. the justices refused to accept the new commissions, and pointed out to the governor in a long letter that this duplication of oaths would set a bad precedent and risk giving the executive undue powers over the court. far from being an artificial objection, the letter noted, this latter point was extremely touchy for the justices' standing in a great many matters was based on seniority, and both the prestige and chances for financial rewards that went with the office depended on this standing.[75] the most noteworthy changes in the organization of local functions came as a result of the disestablishment of the church of england. that portion of all local officials' oaths which called for supporting and defending the church was dropped, but, more important, abolition of the parish vestry made it necessary to lodge its non-religious functions elsewhere. in 1780, therefore, the general assembly created county boards of overseers of the poor.[76] most other welfare activities were added to the responsibilities of the county court.[77] while the basic philosophy of virginians regarding their local government did not change as a result of independence, certain new governmental institutions were created because colonial ways were not efficient enough to meet the demands placed on them by social and economic growth. although the general jurisdiction of the county court was continued, in 1788 a new court, called the district court, was established to relieve the pressure of judicial business.[78] these district courts were the direct antecedents of the present circuit courts of the counties which were created by the general assembly in 1818.[79] if the district court did not displace the county court immediately, it forecast its eventual decline as a judicial tribunal. the new court introduced the beginnings of professionalism on the bench, and offered the prospect of full-time attention to the administration of justice by trained judges. establishment of the office of the commonwealth attorney in 1788 added to this trend toward professionalism.[80] most of the administrative duties of the county court in colonial times remained after independence. consequently, the records of the county court continued to show actions connected with the licensing of inns, ordinaries, mills, ferries, peddlers, and other similar activities, along with attention to the survey and maintenance of roads, bridges, and fords.[81] regulatory powers over the practices of tradesmen and artisans was broad, and used by the county court to set rates which could be charged and to prescribe trade practices which affected the quality of the products involved. in this area of activity, the county court was performing what virginians generally regarded as matters of purely local concern. except in connection with the production of tobacco and milling and shipping of grain, economic activities seldom affected anyone beyond the county neighborhood.[82] therefore, the county court was deemed to be the best body to understand and accommodate the interests involved. this attitude began to change only as the improvement of transportation facilities increased travel and commerce in the period from 1830 to 1860. notes for chapter iii [43] see generally, martha hiden, _how justice grew: virginia counties: an abstract of their formation_, (williamsburg: virginia 350th anniversary celebration, 1957). also, because time-honored tradition as well as law influenced the organization of virginia counties, the description of english local government in j. b. black, _the reign of elizabeth, 1558-1603_, (oxford: oxford university, 1936), pp. 174-177, applies to virginia's county government in the colonial and early federal periods. [44] the first statute on this subject, in 1628, used the term "commissioners" (i hening, _statutes_, 133). in 1662, this term was replaced by "justices". p. a. bruce, _institutional history of virginia in the seventeenth century_, (new york: putnam, 1910), i, 488. however, porter, _county government_, p. 170, states that "justice of the peace" was the full title during most of the seventeenth and eighteenth centuries. [45] porter, _county government_, p. 168. [46] in 1657, for example, the house of burgesses enacted legislation requiring that appointments be recommended by the county court and approved by the assembly. (i hening, _statutes_, 402, 480) but this requirement appears to have been repealed after the restoration of charles ii. [47] porter, _county government_, p. 49, cites the _calendar of state papers_, i, 261, listing the numbers of justices in nearby counties as follows: fauquier, 18; prince william, 18; loudoun, 17. [48] charles sydnor, _american revolutionaries in the making_, (new york: collier, 1962), p. 64. [49] hening, _statutes_, i, 117. [50] hening, _statutes_, i, 305. [51] hening, _statutes_, ii, 28, 280. [52] porter, _county government_, p. 42. [53] _ibid._, pp. 27-28. [54] hening, _statutes_, i, 330, 484. [55] these rules included prohibitions against extortion of excessive fees, acting as lawyers in their own courts, falsifying revenue returns, multiple job-holding and the like. see hening, _statutes_, i, 265, 297, 330, 333, 465, 523; ii, 163, 291. porter, _county government_, 68, comments that "the office of sheriff, judging from the number of acts which the assembly found it necessary to pass, was the problem child of ... [the 18th century], not only in regard to the duties of the office, but also in the method of appointment." [56] shepherd, _laws of virginia_, i, 367. [57] _calendar of state papers_, iv, 416. [58] hening, _statutes_, xi, 352. [59] hening, _statutes_, iv, 350. [60] hening, _statutes_, ii, 419; iv, 350. [61] hening, _statutes_, ix, 351. [62] hening, _statutes_, xii, 243. [63] john wayland, _history of rockingham county, virginia_, (dayton, virginia: ruebush-elkins, 1912), pp. 424-425. [64] porter, _county government_, p. 109, citing _calendar of state papers_, iv, 170. [65] sydnor, _american revolutionaries_, pp. 77-78. [66] as a result law books were the property of the court rather than the individual justices, and on the death or resignation of a justice his law books were surrendered to the court and divided among the remaining members of the court. hening, _statutes_, iv, 437. [67] in unusual circumstances, such as an outbreak of smallpox, the sheriff might chose an alternate site. h. r. mcilwaine (ed), _journals of the house of burgesses, 1742-49_, (richmond, 1909), p. 292. [68] douglas s. freeman, _george washington: a biography: young washington_, (new york: scribner, 1948), ii, 146, notes that washington became involved in an election-day brawl at the election of members of the house of burgesses in december 1755. the contest between john west, george william fairfax, and william ellzey was very close, and washington (supporting fairfax) met william payne (who opposed fairfax). angry words led to blows, and payne knocked washington down with a stick. there was talk of a duel, but the next day washington apologized for what he had said, and friendly relations were restored. [69] sydnor, _american revolutionaries_, p. 53. [70] nicholas cresswell, _the journals of nicholas cresswell, 1774-1777_, (pt. washington, n. y.: kennikat press, 1968), pp. 27-28. [71] hening, _statutes_, iii, 243. [72] "bumbo" was an eighteenth century slang term for rum. sydnor, _american revolutionaries_, p. 53. [73] william c. rives, _history of the life and times of james madison_, (boston: little, brown, 1873), i, 180-81. [74] porter, _county government_, p. 107. [75] calendar of state papers, iv, 337. [76] hening, _statutes_, x, 198; xi, 432; xii, 273, 573; shepherd, _laws_, i, 114. [77] hening, _statutes_, x, 385 (orphans); xii, 199 (mental health). [78] the district court's jurisdiction included civil cases of a value of â£30 or 2,000 lbs of tobacco, all criminal cases, and appeals from the county court in criminal cases. hening, _statutes_, xii, 730 et seq. [79] virginia, _code of 1819_, i, 226. [80] hening, _statutes_, xiii, 758. [81] hening, _statutes_, xii, 174. [82] in the late eighteenth century, virginia millers and warehousemen were major sources of grain and flour for new england, the west indies and mediterranean. the house of burgesses, and later the general assembly, enacted comprehensive laws regulating the quality, grading and marking of these products. see, lloyd payne, _the miller in eighteenth century virginia_, (williamsburg: colonial williamsburg, 1963) and charles kuhlman, _the development of the flour-milling industry in the united states_, (boston: houghton mifflin, 1929), pp. 27-33, 47-54. [illustration: fairfax county courthouse, june 1863. photo by t. h. o'sullivan. copy from the library of congress.] chapter iv the war years: 1861-1865 as events in the winter of 1860 and the spring of 1861 carried the nation into the crisis of civil war, fairfax county aligned itself with richmond rather than washington. thus, at the state's convention on secession in may 1861, the fairfax county delegation voted to ratify the secession ordinance.[83] the consequences of this action were prompt in coming and far-reaching in their effects, for with the commencement of military operations in northern virginia it became impossible to carry on the normal processes of county government. fairfax court house (the town of providence) was outside the ring of fortifications which were built on the virginia side of the potomac to protect the national capital. inside this line, stretching in a great arc from alexandria, through the vicinity of the falls church, to chain bridge, union army commanders exercised military authority and administered justice through provost courts.[84] outside this area the authority of the general assembly of virginia nominally remained in effect, and the justices of the courts and the sheriffs of the county continued to hold their positions under the laws of the seceded state. serious difficulties in the transaction of public business soon appeared throughout fairfax county, where patrolling and skirmishing outside the ring of permanent fortified positions were daily occurrences. this was recognized in an ordinance adopted by the secession convention providing that when the court of any county failed to meet for the transaction of business or the public was prevented from attending the court "by reason of the public enemy", the court of the adjoining county where such obstructions did not exist had jurisdiction of all matters referrable to the court or the clerk of the court where normal business had ceased.[85] as virginia armed, troops of the confederacy placed themselves in positions to repel invaders, and in may 1861, a company of the warrenton rifles established a camp at fairfax court house. on the morning of june 1, 1861, a body of union cavalry rode through the town, and in the confused exchange of fire which followed, a captain of the rifles, john quincy marr, became the first officer casualty of the war.[86] a month later, the tide of union forces under mcdowell swept past the courthouse on the way to its rendezvous at bull run, and back again to the safety of the fortified positions along the potomac. in the wake of their victory at bull run, troops of the confederacy established an outpost at fairfax court house to watch for signs that the union army might resume the offensive by moving against the confederate earthworks near centreville. this outpost did not see any fighting for the time being, but it provided the site for what later was regarded as one of the decisive moments of the war. in september 1861, general beauregard had established his headquarters at fairfax court house, and urgently pressed the newly-formed government of confederate president jefferson davis for reinforcements with which to sweep into pennsylvania and maryland and, hopefully, to carry the federal capital itself. a meeting was arranged at beauregard's headquarters in which davis, generals beauregard and j. j. johnston, and certain of their trusted staff officers considered this plan. their decision was to adopt a defensive posture and protect the borders of virginia rather than take the offensive and invade the north. as events turned out, this decision had consequences of the greatest effect, for it was not until lee marched out of the valley on the road to gettysburg in 1863 that there was another opportunity for the confederacy to carry the war to the soil of the northern states.[87] in the spring of 1862, the confederate army retired from fairfax court house, and soon after that its line of fortifications at centreville--the most extensive system of field fortifications in military history up to that time--was abandoned. as the union armies took the initiative in their repeated efforts to reach richmond, the crossroads at fairfax court house had key importance in the communication and supply systems of these forces. from 1862 to the end of the war, union troops remained in control of the crossroads and the courthouse. contemporary photographs of the building show it being used as a lookout point and station for patrols. other descriptions indicate that the courthouse was loopholed,[88] the furnishings were removed, and the interior generally was gutted so that only the walls and roof remained.[89] for all practical purposes, the courthouse and its related buildings were, in the years 1863 and 1864, a military outpost and minor headquarters in the union army's system to protect its supply and communications lines from the irregular troops who kept hostilities constantly smoldering in northern virginia. throughout the western part of fairfax county, and in loudoun, fauquier and prince william counties, lived many who gave the appearance of innocent farmers during the daylight hours, but who changed into confederate uniforms at night and on weekends to ride against isolated outposts or supply points of the union army or destroy vulnerable bridges and communications centers. the operations of these guerilla bands kept thousands of union troops pinned down on rear area security guard duty, and preoccupied the forces assigned to fairfax court house. the difficulty of their task under the circumstances that prevailed in northern virginia was dramatized in the famous confederate raid on fairfax court house by men under the command of col. john s. mosby when, on the night of march 8, 1863, the confederate commander with about 30 men captured and carried off 33 prisoners, including union brigadier general edwin h. stoughton, and a large number of horses and quantity of supplies. throughout 1863, 1864 and the spring of 1865 hardly a night went by without some cries of alarm and shots being fired because of the activities of the confederate irregulars. yet they took a substantial toll from the wealth and welfare of the very people they claimed to represent, for the union troops soon learned more efficiency in their rear area operations, and increased the restrictions on movement of civilian traffic. the transaction of personal business in normal ways became virtually impossible. the historian, bruce catton, has assessed the activities of the guerilla bands as follows: the quality of these bands varied greatly. at the top was john s. mosby's courageous soldiers led by a minor genius, highly effective in partisan warfare. most of the groups, however, were about one degree better than plain outlaws, living for loot and excitement, doing no actual fighting if they could help it, and offering a secure refuge to any number of confederate deserters and draft evaders.... the worst damage which this system did to the confederacy, however, was that it put yankee soldiers in a mood to be vengeful.[90] during the years when normal business at the courthouse was suspended and the county officials who held authority from the general assembly were dispersed, some of the county's records were removed from the courthouse for safekeeping, and some were not.[91] in either case they were subject to the risks of loss and damage. some were carried off and in later years have been brought to light as the descendents of union and confederate soldiers have found them in places where they had been put for safekeeping. the jail building ceased to be used for its original purpose, and, during the latter months of the war, the jail of alexandria county (now arlington county) was utilized for fairfax county's prisoners.[92] the effort to provide a legitimate successor to the secession government in richmond started in the wheeling conventions of may and june 1861, from which came the unionist government of francis h. pierpont.[93] the admission of west virginia to the union in december 1862[94] left governor pierpont in control of only those parts of northern virginia, the shenandoah valley, and chesapeake bay that were occupied by federal troops. within this area, the pierpont administration collected taxes and attempted to supply the essential services of civilian government. closer touch with these problems was possible after june 1863, when governor pierpont moved his government to alexandria. on january 19, 1863, a new county court for fairfax county was convened pursuant to a proclamation by governor pierpont which directed that the place for the court's sessions should be changed from fairfax court house to the village of west end[95] near alexandria. here, in january 1863, the court met in a structure known as bruin's building. the minutes of this and other sessions which followed recite many of the same problems and disputes that always had occupied the time of county courts--dockets of minor criminal and civil cases, petitions to higher levels of government, determination of minor civil disputes, issuances of permits and licenses, and appointment of public officials.[96] certain items in the minutes of this january 19, 1863 meeting documented the strains created by the wartime conditions: a petition to the secretary of war prayed that the "bruin building" in the village of west end be placed at the court's disposal; the deputy commissioner of revenue was directed to discharge the duties of the commissioner until the latter, currently a prisoner in richmond, could return to his duties; payments were approved for wagonowners who had hauled books, papers and records to the courthouse from various points in fairfax and nearby counties. one item of particular interest stated: the fact having been brought to the notice of the court that degradations were being committed upon the mt. vernon estate, the court, under the chancery powers vested therein, appointed jonathan roberts, the present sheriff, curator, to take charge of all property in fairfax county, va. belonging to the heirs of john a. washington, dec.[97] after the cessation of fighting in april 1865, governor pierpont moved his government from alexandria to richmond. however, without the presidential support which lincoln had provided during his lifetime, the pierpont administration found it increasingly difficult to carry on effective government as the years immediately after the war saw numerous plans for reconstruction competing for favor. the situation was further complicated by the fact that in february 1864 the pierpont administration had sponsored a constitutional convention which had adopted a new constitution for virginia, and that this constitution had nominally gone into effect in alexandria and fairfax counties.[98] a complex legal problem regarding the succession of governmental authority thus was added to the formidable task of reconstructing fairfax county's economy and physical facilities. this task was made difficult because many of the records of the county had been scattered or destroyed during the fighting. records were searched out and retrieved whenever their places of safekeeping were known, a process requiring years of effort. some record books were never found. the accounts of how the wills of george and martha washington were recovered are frequently cited to illustrate the difficulties of reassembling fairfax county's records. when, in the fall of 1861, beauregard's confederate troops withdrew from fairfax county, the will of george washington was secretly removed from the courthouse by the court clerk, alfred moss, and taken to richmond. here it was placed for safekeeping with the secretary of the commonwealth of virginia. following the cessation of hostilities, it was returned to fairfax county.[99] martha washington's will was not removed from the courthouse to richmond, but remained there during the time union troops occupied the building as a patrol point. as might be expected, cabinets were broken open and papers scattered. one day, late in 1862, a troop of soldiers from new england was in the building and engaged in shoveling out the debris from the floor. a union lieutenant named thompson grew curious about these papers and interrupted the work long enough to examine some of them. he picked up the will of martha washington and, recognizing it, took it with him. following the war, the will next was heard of in 1903 in england where a descendant of lt. thompson sold it to j. p. morgan. the sale was reported to the commonwealth attorney of fairfax county who wrote mr. morgan seeking the return of the will, but no answer was ever received. after mr. morgan's death, the county sought to obtain the will from his son. negotiations were unsuccessful until court action was begun by the county. finally, one day before the matter was to be argued before the united states supreme court, the will was returned.[100] notes for chapter iv [83] thomas chapman, jr., "the secession election in fairfax county, may 23, 1861", _yearbook of the historical society of fairfax county_, iv (1955) 50. [84] robert anderson, "the administration of justice in the counties of fairfax, alexandria (arlington) and the city of alexandria (part ii)", _the arlington historical magazine_, ii (october 1962) 10-11. [85] ordinance 67, passed by the virginia convention, 26 june, 1861, cited by anderson, "administration of justice", p. 10. [86] governor william smith, "the skirmish at fairfax court house", _the fairfax county centennial commission_, (vienna, virginia: 1961) p. 4. because of the confusion in the confederate ranks, no officer took charge, and so governor smith ordered the confederate troops to return the fire of the federal soldiers. [87] the fairfax court house meeting, which took place in gen. beauregard's headquarters near the courthouse, has been the subject of controversy in the memoirs of those involved. see, for example, jefferson davis, _the rise and fall of the confederate government_, (new york: yoseloff, 1958), i, 368, 448-452, 464; alfred roman, _military operations of gen. beauregard_, (new york: harper & bros., 1884), i, 137-139. [88] _washington post_, april 10, 1921. [89] _alexandria gazette_ and _fairfax news_, october 17, 1862. [90] bruce catton, _a stillness at appomatox_, (new york: cardinal giant edition, pocket books, inc., 1958), pp. 318-319. [91] two items from the _alexandria gazette_ in july 1862 illustrate the problems regarding these records. the edition of july 12, 1862 printed a letter to the newspaper stating that records of fairfax county had lately been found in warrenton, having been removed there, it was supposed, by lawyers. the new sheriff of the county took possession of these records. the edition of july 23, 1862 reported that the new county court of fairfax held its july term in the clerk's office, the courthouse not being in condition for that purpose, and that one of the court's actions was to order that application be made for a new seal, the old one not being found. [92] fairfax county court minute book, 1863-1867, p. 130. this order was entered november 25, 1864, and was rescinded by a subsequent order entered november 22, 1865. minute book, 1863-1867, p. 289. [93] the unionists in northern and western virginia met twice in conventions held at wheeling. in may 1861 a convention of some 400 so-called delegates from the counties in these regions met to consider their stake in the state's constitutional crisis, but took no action since virginia had not yet ratified the secession ordinance. a second convention at wheeling was held in june 1861, and organized a unionist government for the state which claimed the authority of the general assembly (which it asserted had forfeited its authority by rebellion) and other constitutional officials. francis h. pierpont served as governor of this unionist government of virginia. [94] the congressional approval of west virginia's admission occurred in december 1862, but it was not until june 1863 that president lincoln proclaimed the admission of the new state and approval of its constitution. [95] fairfax county court minute book, 1863-1867, p. 2. [96] _ibid._ minutes of a meeting of the court on january 19, 1863. [97] _ibid._ the practical effect of this order has been questioned, however, since mt. vernon was sold out of the washington family in 1859 to the mt. vernon ladies' association of the union, and the washingtons had, by 1863, moved to fauquier county, leaving neither relatives or property in fairfax county. interview with judge james keith, april 1972. [98] as described in william hemphill, marvin schlegel and sadie engelberg, _cavalier commonwealth: history and government of virginia_, (new york: mcgraw-hill, 1957), 339-340, this constitution contained various new provisions, such as the abolition of slavery and denial of suffrage to all men who held office under a confederate government. [99] eugene e. prussing, _the estate of george washington, deceased_, (boston: little, brown, and co., 1927) pp. 39-40. "martha washington's will and the story of its loss and recovery by fairfax county," _yearbook of the historical society of fairfax county, virginia_, ii (1952-53) 40-62. [100] "martha washington's will," p. 61. chapter v the years of rebuilding: 1865-1903 with the end of the war the formidable tasks of rebuilding both state and local governments were begun. president abraham lincoln's view of reconstruction had been that the government which took virginia out of the union should be the one to bring her back into the union,[101] and president andrew johnson generally sought to follow this principle. others, mainly the radical republican leaders, argued that virginia had forfeited her sovereignty by rebellion, and so could not return to the union except on new terms.[102] in this respect, president johnson found that the presence of governor pierpont in richmond--purporting to govern under the constitution which his government had drafted and ratified in alexandria in 1864--was a complicating factor. not only was the legitimacy of this constitution questioned, but all evidence pointed to the conclusion that the state's leaders who had served the confederacy could not and would not accept it. an unsuccessful attempt to improve the constitution was made in the summer of 1865, and thereafter a series of confusing elections and administrations followed as the radical republican leaders in congress overrode president johnson's reconstruction program.[103] in march 1867, the territory of nine former confederate states was divided into five military districts, in which army commanders were authorized to oversee the civil administrations of the states. in virginia's military district, the army commander, general john schofield, interfered very little with the administration of francis pierpont, who served as provisional governor. pierpont provided a measure of needed stability compared to what had preceded it, and as a result slow but steady progress was made toward reconstituting some of the essential elements of local government in the state.[104] the prospect of restoration of full political power to the states appeared briefly in march 1867 when congress provided that the confederate states would be readmitted to the union and their delegations would be seated in congress when they adopted constitutions which conformed to the constitution of the united states with the new fourteenth amendment. a convention, dominated largely by republican reconstructionists, met in december 1867 and brought forth the so-called "underwood constitution," named for judge john underwood who presided at the convention. the proposed new constitution contained the main features which were needed to secure reinstatement of virginia's sovereignty. in addition, however, it contained a controversial provision which, in effect, disenfranchised thousands who had served the confederacy. thus, the choice offered in the impending ratification referendum was difficult for most virginians. so controversial was this matter that the army commander was moved to intervene and postpone the referendum indefinitely.[105] stalemate followed during 1868 and 1869. francis pierpont was replaced in the office of provisional governor by henry horatio wells, a new yorker who was favored by the radical republicans. progress toward reconstitution of local government lost momentum as state leadership lapsed. intervention by president grant finally brought action on the underwood constitution by proposing that virginians vote on the controversial disenfranchisement clauses separate from the main features of the document. in july 1869, the vote was taken, with the expected result that the "test oath" provision was defeated while the constitution was approved. in the general assembly elected under this constitution, the conservative party enjoyed a working majority over the republicans, who had been badly split by the referendum controversy. henry wells resigned, and was replaced by gilbert walker, who served first by appointment of the army commander and later by virtue of election to a constitutional four-year term. in january 1870, legislators from virginia resumed their seats in the congress, and the last federal occupation troops left the state. the underwood constitution introduced major changes into the structure of local government.[106] it adopted the northern system of dividing counties into townships,[107] with a justice of the peace exercising his authority only within his township. other elective offices introduced at this time were county supervisors, a county clerk, collector, assessor, overseer of the poor, and overseer of roads. all these officials--some serving the township and others the county--were salaried, and greatly increased the size of the governmental apparatus formerly centered in the county court. the board of county supervisors was the general governing body of the county, comprised of members elected from each township. although this expansion of the structure of county government came in response to recognition that problems of the 1870's could not be solved with government geared to the 1770's, the impact of these problems plus virginians' conservative political tradition led to dissatisfaction with the township system from its inception. as soon as the original force of the reconstruction movement was spent, therefore, this system was modified to bring it more into line with virginia's historic governmental institutions. in 1875 and 1884 the number of separate elective offices was decreased, the independent powers of the townships were reduced, and the townships were converted into "magisterial districts."[108] gradually the power to appoint all county officers except those with constitutional status was given to the board of county supervisors and the county's circuit court judge. [illustration: map of fairfax court house from g. m. hopkins, _atlas of fifteen miles around washington_, 1879.] the last quarter of the nineteenth century saw the appearance and disappearance of a number of public offices now only dimly remembered. for example, the county office of commissioner of roads dated from 1831, but the constitution of 1869 created township overseers of roads who, with the commissioner of roads, formed the county road board. when the townships were abolished, the duties of these boards were transferred to the commissioner of roads and road surveyor. by 1900 this highly decentralized system had resulted in enactment of several hundred local road laws by the states and led to a confused situation that was not cured until the state highway system and highway department were established in 1919.[109] from the time of the disestablishment of the church of england, care of the county's poor and orphans had been the responsibility of the county's overseer of the poor. public health measures to suppress smallpox also were carried on by this officer. the constitution of 1869 created a superintendent of the poor for each county, elected by popular vote, and the overseers of the poor became township officers. with the abolition of the townships, the superintendent of the poor also disappeared and the overseers became officers of the magisterial districts.[110] in the early days of the nineteenth century, the justices of the county court had been responsible for the county's militia. this system was changed in 1833 when the militia were reorganized to form divisions, brigades and regiments on a state-wide basis. officers were appointed by the governor on recommendation of the county court. this system continued until the civil war, and when the militia was established after the war it was managed entirely from the state level.[111] in the changes that followed the shift of governing power to the board of county supervisors, one of the chief losers was the county sheriff. he ceased to have any control of elections or revenue matters, and his other powers and prerogatives connected with administrative functions of county government were lost to others. he became exclusively a peace officer and custodian of the county jail, and these are the duties of his office today. as the nineteenth century ended, virginia moved toward another constitutional convention--its fifth since 1776--with the hope of modernizing the machinery of government. as matters turned out, however, the resulting constitution of 1902 was not a forward-looking document, and its chief results were to formalize changes which had already occurred in practice. thus, much debate was spent on how voting qualifications should be regulated, and whether the old county court should be abolished or not. fairfax county's representatives in the convention voted for retaining the county court, arguing that the monthly sessions had significant social values--an "heirloom of great psychological importance." ultimately, however, the vote went against retention of the county court and it was abolished. its judicial functions were assigned to the circuit court, and its legislative and administrative functions were performed by the board of supervisors.[112] the disappearance of this political institution which had been the focal point of virginia's local government for almost 300 years, marked the end of an era which reflected the tradition that public affairs were best managed by the county's gentlemen freeholders. but it did not immediately usher in as its successor an era of professionalism and responsiveness to the wishes of the public. progress in these latter respects was postponed by slowness in widening the suffrage and the opportunity to hold public office. in this respect the constitution of 1902 perpetuated the restrictive system which had prevailed since 1875 by retaining the capitation tax and the requirements of literacy and/or the ability to explain any part of the constitution. the beginning of the twentieth century also marked the end of the rebuilding years which had followed the civil war. the simple struggle for subsistence, which had been the foremost theme when scarcities existed in all types of goods and the sources of capital were meager, no longer was the overriding consideration. a measure of normalcy had, by 1902, returned to life in northern virginia. and if the pace of this style of life was not as vigorous or spectacular as in some other areas of the nation at that time, it offered, at least, the substantial attractions of a comfortable and secure rural setting with ready access to the centers of commerce and culture in nearby washington, alexandria, and georgetown. notes for chapter v [101] hemphill, et al., _cavalier commonwealth_, p. 346. [102] samuel e. morison and henry s. commager, _the growth of the american republic_, (new york: oxford, 1937), ii, 37-41. [103] porter, _county government_, p. 241. [104] walter l. fleming, _the sequel of appomatox_, (new haven: yale university, 1921), pp. 146-147. [105] explaining his action to general grant, then supreme commander of all the military districts, general schofield stated that the members of the underwood convention "could only hope to obtain office by disqualifying everybody in the state who is capable of discharging official duties, and all else to them was of comparatively slight importance. even the question of whether their constitution will be ratified or rejected they treat with indifference. congress, they say, will make it all right anyway." hemphill, et al., _cavalier commonwealth_, p. 352. [106] see porter, _county government_, pp. 243-246, 258-259, 293. [107] the introduction of the township was probably due to the fact that a number of new yorkers participated in the convention. townships had never been part of the tradition of virginia's local government. [108] virginia, laws of 1874-75, c. 270. [109] porter, _county government_, pp. 249, 271; _code of virginia_ (1950 edn.) title 33, c. 1. [110] porter, _county government_, pp. 258-59, 289. [111] _ibid._, p. 177. [112] ralph mcdanel, _the virginia constitutional convention of 1891-92_, (baltimore: johns hopkins university press, 1928), p. 103, reports that r. walton moore was one of fairfax county's delegation to the convention, and that he argued strongly for the social values of retaining the court. the motion to retain the monthly county court was defeated, however, by a vote of 41 to 19. [illustration: the dedication of the marr monument in 1904. copy by lee hubbard.] chapter vi the twentieth century courthouse the twentieth century brought fairfax county more than a new constitutional framework; it brought a new outlook and spirit. something of this spirit was reflected in the following quotation from a short history and prospectus of the county published by the county board of supervisors in 1907: verily, fairfax county, old in its history, and hoary in its traditions, is throbbing with a new life and enterprise. only yesterday were her advantages and possibilities appreciated; yet, today she is attracting settlers from all parts of the union, and even from foreign countries. certainly no other section extends a more cordial welcome and more attractive inducements to the investor and home-seeker.[113] if this statement seemed perhaps a bit too eager, it was at least hopeful and optimistic in contrast to the spirit that had prevailed during the long years of reconstruction. it expressed a feeling of confidence that came from having weathered the depression which followed the panic of 1893 better than many parts of the country.[114] [illustration: "the tavern," across little river turnpike from the courthouse. photo by helen hill miller, 1932.] [illustration: the courthouse about 1907.] one reason for this was fairfax county's expanding contacts with the city of washington, chiefly by having become a supplier of its dairy and truck garden produce, and by becoming the residential area for increasing numbers of employees of the federal governmental establishment. these elements of the economy of northern virginia offered more resistance to the depression of the 1890's than was possible in the areas of south and central virginia which depended on cotton and tobacco. in turn, it was the development of rapid railroad service, both steam and electric, that made both of these developments possible at this time. the critical importance of this transportation was recognized by the county supervisors' publication: the eastern part of the county is in the immediate vicinity of the cities of washington and alexandria; while all sections of it are within a few hours' drive of these cities. in addition to the accessibility of these cities by roadways, three steam and three electric railways connect the county with washington. the greatest trunk lines north and south traverse fairfax county. through trains on the pennsylvania, southern, chesapeake and ohio, norfolk and western, seaboard air line, and the atlantic coast line, are hourly passing through this county, affording convenient and direct connection with all parts of the country. every section of the county is within easy reach of some one of these roads; and with their double track facilities, and consequent excellent local accommodations, great activity in suburban home building is observed on every hand. especially is this true along the lines of the electric railways, where numerous villages are springing into existence. the proximity and accessibility to washington, the most magnificent city in the world, together with the splendid natural advantages of fairfax, must inevitably make the county rich, populous and great.[115] the heydays of the steam and electric railroads in northern virginia were followed in the 1920's by improvement and expansion of the road system.[116] as the number of automobiles increased--and their prevalence was forecast by designation of present lee highway as the initial segment of the first transcontinental highway running westward from the zero milestone on the ellipse in washington--the paving of roads became a major concern of local communities. both free public highways and toll turnpikes built by subscription and bond issues were undertaken in fairfax county. even after the county elected to turn over its roadbuilding to the state under the byrd road act in 1932, the county's leaders continued to have a deep interest in the increased population growth that roads and railroads made possible. increased population brought increased needs for various new public services. shortly after the first state board of health was established in virginia in 1900, the counties of the state established local boards. the chairman of the board of county supervisors automatically became chairman of the health board in this early experiment in public health services.[117] the machinery for raising revenue was made more efficient by redrawing the division of labor between the commissioner of revenue and the county treasurer. most far-reaching in the long run, however, was the enactment in 1920 of state legislation giving counties the option of adopting various managerial forms of government if they so desired. fairfax county exercised this option in 1951 by adopting the county executive form of government.[118] under this form of county government, the board of supervisors remained the sole legislative authority of the county, but the executive functions were placed under the supervision of a new officer, the county executive. the county executive, as well as all boards and commissions responsible for special services and administrative functions, were appointed by the board of supervisors, and served either for specified terms or at the pleasure of the board. the supervisors continued to be elected by the county's voters, each from one of the magisterial districts. this method of election was adopted deliberately as a means of maintaining a balance of political representation of the western and southern parts of the county, which still were rural in their economic and social orientation, and the north, east and central areas of the county, which had been intensively developed as part of the suburbs of washington and alexandria. the involvement of the public in county government was seen in many forms. service on county boards and commissions was one. also, as newcomers poured into the county seeking homes, the neighborhoods and communities formed civic organizations or citizens associations to provide means for group action on problems of common concern. parallel to these groups, others, such as parent-teachers associations, formed to deal with school-related problems which were both inside and outside the scope of governmental services in the field of education. these forms of citizen involvement in public affairs--prompted partly by the sheer size of the new demands for service and partly because the newcomers to fairfax county came from areas where wide participation in local government was taken for granted--had a profound effect on the county's historic outlook on public affairs. no longer was it accepted that certain families or individuals held among themselves the privileges, powers and obligations of governing. this tradition, symbolized by the gentlemen justices of colonial times and the nineteenth century, was replaced by a new system where political leadership was established through service in the community and verified by the ability to win in competition at the polls. the new dimensions of government's role necessitated finding more space for the county's offices. the clerk's office, which historically had been the focal point for the county's continuing administrative functions, ceased to be able to contain all the county's offices as early as the 1920's. an additional building was authorized, but delays in financing and construction postponed its completion until 1934.[119] however, by 1940 this building was so crowded that both its attic and basement had been converted to office space, and many county agencies were using additional rented space in non-county buildings. plans were developed in the early-1940's for a major addition to the courthouse building. delays were encountered, first because of the shortages of materials and manpower during the years of world war ii, and then because of problems of funding this work amid other urgent demands for tax revenue. ultimately, both shortages were relieved, and work was begun on the central block and south wing of the courthouse as they appear today.[120] the jail section and wing containing the clerk's records of land transactions and court proceedings were added to the building in 1956.[121] as the county's need for space to house its governmental offices continued to grow through the 1960's, some consideration was given to moving the courthouse to a new location.[122] the transformation of fairfax from a town into a city in 1961 added a complicating factor to this issue for it meant that technically the county had no control over the land on which its seat of government stood. the city of fairfax, however, was anxious to keep the center of county government in its existing location, and offered to condemn sufficient land for the county's building needs.[123] the seat of county government remained at fairfax, but the courthouse square no longer sufficed to contain the complex of buildings involved. by 1969 construction had been completed on a county governmental center, later named the massey building, to honor carlton massey, the first county executive, who served from 1952 to 1971. a separate building was erected nearby for the county police department, and plans were made for other buildings in the future.[124] [illustration: rear view of the fairfax county courthouse complex. photo by the office of public affairs, about 1972.] [illustration: view of the fairfax county courthouse, the massey building, and downtown fairfax. photo by bernie boston, 1976.] overshadowing the old courthouse tract, the new center of government nevertheless preserves the evidence of the past by continuing use of the original (north) section of the courthouse building and its 1953 addition, all in an architectural style reminiscent of the colonial period in virginia. the presence of the past combine with a sense of the present and the future to make the fairfax county courthouse both a symbol and a functioning seat of a county government which in the year 1976 had been in existence for more than two centuries. notes for chapter vi [113] fairfax county board of supervisors, _industrial and historical sketch of fairfax county, virginia_, (fairfax: county board of supervisors, 1907), p. 5. [114] allen w. moger, "the rebuilding of the old dominion," (unpublished doctoral dissertation, columbia university, 1940), pp. 95-96. [115] fairfax county board of supervisors, _industrial and historical sketch_, pp. 5-6. [116] the campaign to improve virginia's roads had been waged since the 1890's. see, for example, the rhetoric and argument in favor of road improvements set forth in the _programme of the virginia good roads convention_, (roanoke: stone printing, co., 1894) held in richmond in october 1894. as to the effects of the rise of automotive travel, see fairfax county chamber of commerce, _historic, progressive fairfax county in old virginia_, (alexandria: newell-cole, 1928), pp. 20-21, containing a road map of the county's hard-surfaced roads and unimproved roads in 1928. [117] porter, _county government_, p. 291. [118] fairfax county board of supervisors, _annual report, 1969_, p. 6. [119] fairfax county board of supervisors, minute book, v. 5, 318, william deming was the architect of this project. as with previous expansions of the clerk's office, the old building was torn down and the bricks re-used in the new building. [120] fairfax county board of supervisors, minute book, v. 5, 318; v. 9 (1939-40), 501; v. 10 (1941-42), 175; v. 12 (1949-50), 4; v. 18 (1950-51), 497; v. 20 (1953), 519. [121] fairfax county board of supervisors, minute book, v. 30 (1960), pp. 418-23. [122] fairfax county board of supervisors, minute book, v. 32, 264-65 notes that reston offered 50 acres for the use of the courthouse, and tyson's corner and the intersection of routes 495 and 50 also were considered. see also, _ibid._, v. 39 (1964), 117. [123] fairfax county deed book, b-2, pp. 373-376; 503-504. the courthouse commissioners were charles little, david stuart, william payne, james wren, and george minor. [124] fairfax county board of supervisors, minute book, v. 36, 313; v. 39, 544. on april 7, 1965 the board of supervisors voted to construct a new office building and authorize a referendum for a $5,500,000 bond issue for this project. the bonds were approved by the voters, and the building was built on a 35-acre tract belonging to mary ambler, which was condemned by the city and then purchased by the county from the condemnor. the architect for the project was william vosbeck, and the contractor was the blake construction company, fairfax county board of supervisors, _annual report_, 1968, p. 4. chapter vii the architecture of the courthouse and its related buildings 1. the courthouse complex among the courthouses built in england's north american colonies, those of virginia developed characteristics which expressed peculiarly well the prevailing patterns of landholding and manner of conducting local government. unlike new england, where each small community had its frame meeting house, containing within its walls "all the ideals, political, moral, intellectual and religious of the people who attended,"[125] the seats of county government in colonial virginia were centrally located in rural settings. a few county courthouses grew into regional centers of commerce, industry and finance; but most remained independent and apart from any surrounding community, and some may still be seen today standing "as solitary sentinels, symbolic of government."[126] it was also characteristic of virginia that these courthouses were not single buildings, but were complexes of several structures. the typical courthouse compound was enclosed by a brick wall, inside which were a courthouse, a jail, a clerk's office, and, sometimes, a row or cluster of offices for lawyers. invariably, also, an inn or ordinary occupied a site within the compound or immediately adjacent to it. this style of courthouse may be found through virginia, dating from earliest colonial times; and, although many fine courthouses are found in the early architecture of delaware, maryland, pennsylvania and north carolina, none of these areas developed the design concept of a courthouse compound. this design concept was used in the courthouses of fairfax county at springfield (1742-1752) and alexandria (1752-1800); and it was followed in the county's third courthouse which was completed in 1800. the courthouse tract was situated near the geographical center of the county, at the intersection of the little river turnpike and the old colchester road. the tract consisted of four acres, acquired by a deed from richard ratcliffe and his wife serian. specified in the deed were structures including a courthouse, clerk's office and goal, "... and every other building and machine necessary ..."--the latter presumably referring to gallows, pillory, stocks, and the like. the may 1798 fairfax county court order book did specify that the courthouse should be forty-by-thirty feet with a twelve-foot portico, the gaol forty-by-twenty, the clerk's office twenty-by-eighteen and covered with slate or tile, a gaoler's house twenty-four-by-eighteen feet, and that stocks, pillory and whipping post also be provided by letting the entire "... building of the same to the lowest bidder."[127] in accordance with statutory requirements, space was delineated for the prison bounds. this was done in march 1800, and the area was described in a survey and report of the commissioners, as follows:[128] in obedience to the order of the worshipful court of this county, hereunto annexed, we the subscribers in company with col. william payne, the surveyor of this county, proceeded this thirteenth day of march eighteen hundred, to lay off ten acres of ground for the prison rules of this county, and have ascertained and bounded the same by the following meets and boundaries, ... including the said four acres, the court house, gaol, clerk's office, the brick tavern, kitchen, stables and store house, and beg leave to report the same with the plat thereof hereunto also annexed.--given unto our hands and seals: thomas gunnell (seal) n. fitzhugh (seal) t. ellzey (seal) whether all of the buildings mentioned in this report actually existed at that time may be questioned, since the survey plat shows only the courthouse, clerk's office and jail. as to these three, the plat showed the courthouse situated as at present, with the clerk's office almost directly south a distance of about 300 feet, and the jail about the same distance south, but in back and west of the clerk's office. the plat does not show roads or other features of the platted parcel, but the known position of the courthouse in relation to the turnpike supports the suggestion that the brick tavern referred to was located on the north side of the turnpike, the building later known variously as the willcoxen tavern, the union tavern and the fairfax tavern. the other buildings referred to in the report apparently left no traces, for except through an occasional glimpse of them in old photographs of the courthouse, they are not noted in the records of the court. these buildings formed a cluster which, if it was not all neatly enclosed within the courthouse fence, at least was immediately adjacent to and integrated with the activities centered in the court. in the first three decades of the nineteenth century, the town of providence grew up around the courthouse, and by 1835 some 50 dwellings and 200 residents were listed.[129] but the town never eclipsed the courthouse; and, from its commanding position on the gentle hill at the crossroads, the courthouse itself continues to serve as a focal point and symbol of government. _the clerk's office._ an office for the clerk of the county court was mentioned in the survey of the courthouse lot made in march 1800, and was shown on a location south of the courthouse about 200 feet and east of the jail about sixty feet. according to the survey the office was a relatively small building, one or one-and-one-half stories high, with a chimney at the south end and a door opening on the east side. this office was the depository of all important public records in the county, and therefore was a focal point for much of the activity that occurred at the courthouse throughout the year. a news report in the _alexandria daily advertiser_ of february 10, 1806 called for bids for an addition to the clerk's office and repairs on the "public building," all of which should be in accordance with a plan lodged with col. james wren, and constructed of brick "covered with slate."[130] during the next forty years, the functions of the clerk grew in both size and importance as he was called upon to serve both the county court and the circuit court. the need for repairs combined with the need for more space required increasing attention to the old building, until, in 1853, it was determined that a new office building for the clerk must be built. newman burke, george w. hunter, jr. and alfred moss were appointed commissioners to oversee the demolition of the old office building and the construction of a new one. fortunately, the commissioners' notice to builders, inviting bids on these jobs, was published in the _alexandria gazette and virginia advertiser_ of july 15, 1853, and provides a detailed description of the materials and construction to be used. it included the instruction that such of the old materials as could be used in the rebuilding should be so used. like the courthouse building, the clerk's office suffered damage and deterioration during the war years of 1861-65. when the courthouse compound became a headquarters for union army patrols, and civilian government either ceased or moved to a temporary seat elsewhere, care and custody of the clerk's office could not be guaranteed. many of the record books and files were taken to places of safekeeping in private homes. however, many could not be moved in time to prevent them from being scattered, taken, lost or destroyed as soldiers occupied the office building. when the war ended, the task of re-equipping the office and restoring it to usefulness was a major one. [illustration: the clerk's office about 1907.] in 1875, the clerk's office burned and subsequently, a new office building was added to the courthouse complex. it was a two-story brick building, larger than the old clerk's office and located beyond it to the south of the courthouse. it was probably completed by 1881, at which time the board of supervisors was appropriating funds for new furnishings. the architecture of this newest office presented a mixture of three styles. in overall appearance, its square shape, hipped roof and functional design were reminiscent of the eighteenth century buildings of james wren. the late nineteenth century's preference for exterior decoration was illustrated by a dentiled cornice, a belt of corbelling three courses wide in the brickwork below the cornice, and brick pilasters on each side of the main doorway, topped by scrolls and brackets supporting the pediment. in the center of the building on the second floor, a palladian-style window was installed, providing a contrast to the design of the other windows. two courses of corbelling also appeared on the two chimneys located at the back and in the center section of the building. notwithstanding these exterior decorations, the general design of the office represented a recognition of the needs of office workers and the response of late nineteenth century architects to provide light, air, and functional efficiency in the arrangement of space for offices. telephone service and electric lights were installed in the clerk's office in 1902.[131] after 1932, the old clerk's office was demolished. a new office building was erected south of the courthouse in 1934, with labor and materials provided by federal and virginia relief funds. this building was demolished when the extensive addition was made to the courthouse, 1951-1954. a new wing was put on the back of the courthouse in 1956 to accommodate the rapidly increasing quantities of archives generated by the business of courts and the clerk's office in a county whose population was growing at an unprecedented rate.[132] _the jail._ as shown in the survey of the courthouse tract, made in march 1800 by the county surveyor, william payne, the jail was located on the southwestern corner of the original four-acre tract. no contemporary descriptions or records of the jail have survived, but the survey sketch shows a two-story building with chimneys at each end. presumably the construction material for the jail was brick, since the other principal buildings in the fairfax courthouse compound were made of this material. with regard to the interior arrangement and description of major features, conjecture is also necessary. but, again presumptions may be made that its facilities were the same as others of the time--for example, that the bars used on doors and windows were the flat type (rather than round or other shapes), which were laid across each other to form a lattice and riveted together where they overlapped. also, in accordance with contemporary custom, it may be presumed that the jailor and his family made their home in the same building with the prisoners, and so attended to their meals and other needs. exactly when and how the first jail was constructed at the courthouse site is not entirely clear. payne's survey in 1800 showed a jail building on the site. yet only nine years later the _alexandria daily advertiser_, april 8, 1809, carried an invitation for bids to build a jail at fairfax court house. moreover, although the records of the county court for the next fifty years contain references to repairs and construction work for the jail, they customarily fail to include descriptions of work to be done. accordingly, little can be gleaned from these sources to aid the architectural history of the courthouse complex. [illustration: the jail, built about 1886. photo taken in 1972.] [illustration: police department, about 1947. photo courtesy the fairfax county historical society.] along with the other public buildings at the courthouse compound, the jail suffered during the years of war from 1861 to 1865. when civil government ceased to function at the courthouse, competing groups that claimed civil authority in fairfax county used jail facilities in neighboring alexandria and leesburg when the need arose. during the latter years of the war, when union troops occupied the courthouse, the jail offered its facilities as a storehouse as well as a place of detention for military prisoners. but the army of the potomac had little time or incentive to keep the jail in good repair, and so, like the courthouse, it suffered extensively from the war. during the 1870's, repairs and construction of additions to the original building restored the jail to service. the 1879 g. m. hopkins _atlas_ showing the courthouse complex depicts the jail as being larger than the courthouse in size. in 1884, fire destroyed this building, and arrangements had to be made to use the alexandria city jail until a proper new jail could be constructed for the county.[133] the new jail was located directly behind (west of) the courthouse, facing onto the little river turnpike. its materials and construction indicate that the original portion was added to on two later occasions. when finally completed, the jail was a two-story t-shaped brick building, with a one-story wooden porch across the full length of the front. in the original section (facing onto the turnpike) the windows have plain wooden pediments. the cornice and chimney tops are corbelled, and there are iron cresting and finials on the ridge of the hipped roof. in the second section, which forms part of the stem of the "t," there are segmental arches over the windows and an ornamental cornice consisting of a course of bricks laid vertically. in the third section, which completes the stem of the "t," the brickwork is laid in flemish bond (matching the courthouse brickwork in contrast to the common bond of the rest of the jail), and the windows are topped with flat arches. the second and third parts of the building are covered with a gable roof.[134] in this new jail building, the jailor had living quarters in the front portion, and until 1948 these were used as his residence. the building itself ceased to be used for detention of prisoners shortly after that time, for when the addition to the courthouse was completed in 1956, jail facilities were incorporated into this addition. since 1956, the old jail building has been used for offices of various county agencies, including the juvenile court and probation office, civil defense office, fire board, police dispatcher, and recreation department.[135] _associated buildings and structures._ certain structures were associated with the courthouse because they were required by statute, and others had their origin in custom and convenience. in 1792, when the legislature of the new state government revised the law relating to organization of the local courts, it reenacted most of the features of the system which had been followed in colonial times. by law all counties had to build and maintain a courthouse, jail, pillory, whipping post, and stocks. this law also required that there be two acres of land around the buildings of the courthouse, and that prison bounds of ten acres should be provided for the "health and exercise of prisoners."[136] a report of a survey of the courthouse tract in march 1800 shows metes and bounds for a four-acre tract within a larger ten-acre area, and states that this land was for the purpose of erecting a courthouse, jail, clerk's office, kitchen, stable, and storehouse plus providing an area to serve as the prison bounds. additionally, a well was dug a short distance south of the courthouse. altogether, these comprised the complex of structures associated with the court in the first half of the nineteenth century. _the tavern._ the brick tavern was a substantial building, built on the north side of the little river turnpike directly across from the courthouse complex. no detailed description of this building as it appeared in 1800 has been found. it was, at least in later years, a multi-story building which rivalled the courthouse in size, and expanded as the patronage of the circuit-riding judges and their entourages of attorneys and others combined with the regular passage of travellers on the little river turnpike to create a prosperous business climate. after the civil war, the brick tavern was purchased by col. h. b. taylor, who operated it during the 1870's and 1880's. because of its favorable location near the courthouse, the tavern continued to be frequented by those who had business with the court, and lawyers maintained their offices there. an advertisement in the _fairfax herald_ of april 8, 1887 refers to the building as the union hotel, and describes it as a three-story brick building with annex, containing about twenty-five rooms, with stable and outbuildings, a two-acre garden and a fine well--"a desirable residence for summer boarders." later in 1887 the name was changed from union hotel to fairfax hotel and its management was taken over by james w. burke.[137] the hotel continued to be operated until 1932 when it was demolished to clear the site for subsequent construction of a building for the national bank of fairfax. the bricks, mantels and doors from the hotel were re-used in construction of the home of helen hill and francis pickens miller, called "pickens hill." it is located on chain bridge road north of fairfax, and in recent years has become a major building of the flint hill private school complex. _the well._ at the time of construction of the courthouse, a well was dug on the south side of the building. over the years, pictures show a variety of overhead coverings to shelter the well and its users. the well was a large one, appearing to be four or five feet in diameter at the top, and was surrounded by a raised platform. standing on this platform, one drew water from the well by a windlass operated by a hand-crank. later the box on which the windlass was mounted was fitted with a hand pump, and a trough for filling buckets or other containers was placed at the side of the well. this well served the courthouse into the twentieth century, but was closed and capped when the town of fairfax installed underground water mains. the gazebo-like well structure was moved to sully. "_public comfort station._" many references to the early privies in use on the courthouse grounds appear in both the court order books and the board of supervisors minute books. as recently as 1931, outside toilets were still in use. in october of that year, "the county engineer was instructed to make necessary repairs to the public comfort station on the court house lawn."[138] _memorials_ _memorials of the wars._ on the lawn in front of the old courthouse stand two monuments to the honored dead of four wars. the john quincy marr monument was erected on june 1, 1904, by the marr camp, confederate veterans, commemorating the first confederate officer killed in the civil war. the second monument was erected under the auspices of the fairfax county chapter of the daughters of the american revolution. on a bronze plaque on one side are listed those fairfax countians who gave their lives in world war i and on the other, a plaque listing those who gave their lives in world war ii and the korean conflict. [illustration: naval cannon in front of the courthouse.] [illustration: the marr monument commemorating the first confederate officer killed in the civil war, june 1861. photo from the national archives.] two naval cannons stand on either side of the marr monument, pointed toward the national bank of fairfax, formerly the site of the brick tavern. facing the bank, the cannon on the left is inscribed with an anchor and the following lettering: 12 pdr boat howitzer 1856 j.a.d. u.s.n.y. washington 757 lbs. 58 pre no. 45. the cannon on the right has inscriptions which are very worn and indistinct. there is an engraved anchor, but except for a letter here-and-there, the inscription is unreadable. [illustration: world war i memorial plaque.] [illustration: world war ii and korean conflict memorial plaque.] _plaques and portraits._ mounted in the inside north entrance hall beside the oldest portion of the courthouse are three plaques. one is a tablet with 160 names of civil war veterans of marr camp, confederate states of america. the second is a memorial to george auld (1832-1919), born in scotland, who "was for many years chairman of the board of supervisors of fairfax county, virginia...." the third is a plaque commemorating the building of the first addition to the courthouse, a.d. 1929, w. i. deming, architect, and c. h. brooks, builder. in the central entrance hall, there is a bronze plaque commemorating the large addition to the courthouse completed in 1954, robert a. willgoos and dwight g. chase, architects, and eugene simpson and bro., contractor. a large mural, painted by esther l. stewart in 1954, is hung above the landing of the grand central staircase. it depicts fairfax county scenes, buildings, and portraits of lord fairfax, george washington, and george mason. [illustration: mural at the central staircase, fairfax county courthouse. painted in 1954 by esther l. stewart.] on the brick floor of the arcaded porch of the first (1800) section of the courthouse, is a national register plaque (1974 listing) placed by the fairfax county history commission in 1976. in the hall inside hangs a plaque from the virginia historic landmarks commission commemorating the building's placement on the state register in 1973. hanging on the walls of this oldest court chamber are oil portraits of county notables. (see appendix for biographical listing.) on the courthouse lawn, a dogwood tree was planted in 1954 dedicated to the firemen of fairfax county. a small bronze plaque with a poem and the dedication was set in a cement post under the tree, by the firemen's auxiliary. in the wake of its many unresolved historical mysteries, the restored courthouse remains a functional courtroom, as required by the terms authorizing the work. yet it cannot claim to represent any particular period of fairfax county's history with full historical or architectural integrity. as now redesigned and rebuilt, the courthouse presents an outward appearance presumably similar to its original form. the interior achieves the pleasant appearance and atmosphere of a working courtroom of the past. notes for chapter vii [125] catherine fennelly, _the new england village scene: 1800_, (sturbridge: old sturbridge village, 1955), p. 9. [126] sidney hyman, "empire of liberty" in _with heritage so rich_, (new york: random house, 1966), pp. 5-6. [127] fairfax county deed book, b-2, pp. 373-377; 503-504. [128] fairfax county, record of surveys, 1742-1856, p. 93. [129] joseph martin, _gazetteer of virginia and the district of columbia_, (charlottesville: martin, 1835), p. 168. [130] fairfax county, record of surveys, section ii, p. 93, march 13, 1800. [131] fairfax county board of supervisors minute book, #1, pp. 89, 91, 196, 206 (1871-1881). [132] interview with thomas chapman, jr., former clerk of the circuit court; fairfax county board of supervisors minute book #6, pp. 580-582, august 20, 1934; architectural drawings, 1951-1956, facilities management office. [133] fairfax county court minute book, 1882-1885, april court, 1884, "the county jail having been destroyed by fire ...," the county court ordered that alexandria city jail be used until a proper jail could be erected in the county. [134] fairfax county court minute book, june court, 1891. [135] interview with thomas p. chapman, jr. [136] hening, _statutes_, october 1792, xiii, 453-455. [137] _fairfax herald_, may 13, 1887, notes that mr. t. r. sangster has removed his law office to the fairfax hotel; the union hotel and fairfax hotel sometimes have been assumed to be separate buildings. however, identical advertisements of this hotel appeared in the _fairfax herald_ on april 8, 1887 and may 6, 1887, the former calling it the union hotel, and the latter calling it the fairfax hotel. the april 29, 1887 _fairfax herald_ reports the rental of the union hotel by burke. by tradition, the hotel building across from the courthouse has been known as the willcoxen tavern or just simply "the tavern." [138] fairfax county board of supervisors minute book, #6 p. 139, october 2, 1931. 2. the courthouse _the courthouse plan and its architect._ the design of the fairfax county courthouse followed the virginia tradition that the seats of civil government should be designed with dignity as well as adequacy for their function.[139] consequently, the courthouse building, which in other respects was a plain rectangular two-story brick structure, departed from strict utilitarian design with its open arcade on the ground floor front, and its cupola in the center of the roof, serving as a base for the flag pole and housing the bell which was used to announce the convening of court. the advantages of the two-story building for innovations in design and decoration were even more evident with respect to the interior. entered through the front door which opened into the arcade, the courtroom gave the same impression of vaulted space that is associated with the nave of a church.[140] the space over the arcade on the second floor was enclosed, and presumably used as the jury room. this room was entered from a balcony located across the front of the building (the back of the court chamber) and along each side of the building. at the front of the chamber (as it appeared in the late nineteenth century) was a raised bench, and directly to the left of the judge's seat was a doorway leading into a pair of rooms used by the court. no descriptions of the interior of the courtroom as it appeared in the early part of the nineteenth century have been found; but it is probably that the business of the court was transacted, as it had been since early colonial times, at a large table, centered in the main chamber of the courthouse and spacious enough to seat the justices of the county court and the sheriff, if the business of the day concerned him. one or more separate tables customarily were provided for the clerk of the court and those of his staff who attended the court session. it was also customary to separate the portion of the courtroom occupied by the court from that occupied by the public, and this was accomplished by installation of a wooden railing or partition. fireplaces heated the courtroom chamber and a second-floor fireplace heated the jury room above the open arcade. details of the plastering and woodwork, the lighting fixtures and other hardware are not known, yet it seems certain they must have been of good taste and design, for their selection was in accordance with a plan prepared by james wren, the designer of the falls church, christ church in alexandria, and probably pohick church. although james wren's name appears frequently in the public records of fairfax county during the eighteenth century, his principal legacy was the architecture he designed and helped to build. in the 1760's references to him are found throughout the vestry books of truro parish and fairfax parish.[141] in 1763 he prepared the plans for construction of the falls church, which formed the nucleus of the village which grew up around it. in 1767 he designed the plans for christ church in alexandria. wren and william weit were each paid forty shillings in 1769 for plans furnished to the vestry, for pohick church.[142] he had, through design of these and other structures, earned a reputation as the foremost builder and designer of buildings in his locality[143]--a reputation attested to by numerous contracts, recorded in the fairfax county court order books, under which young men were apprenticed to him to learn the "trade sciences or occupation of a carpenter and joiner." according to melvin lee steadman's genealogy of the wren family,[144] james wren was born in king george county about 1728, the son of john wren and ann turner wren. he learned his trade of carpentry and joining there, and about 1755 he moved to truro parish, fairfax county. the first reference to james wren in the land records of fairfax county is found in a deed dated june 15, 1756 in which one james scott conveyed to wren a tract of 200 acres on which wren was then living. ultimately, wren built a home, now called "long view," adjacent to the present city of falls church, and assembled a substantial plantation, known as "winter hill," now within falls church city. he also operated, at winter hill, "colo. wren's tavern." james wren served as a justice of the county court. he was a trustee of the town of turberville which in 1798 was laid off on land near the little falls of the potomac but never fulfilled the hopes of its promoters. following his military service in the revolutionary war he held various offices in the county government, including that of sheriff and commissioner of the tax. he acquired extensive landholdings in fairfax and loudoun counties. james wren was married three times; first, in 1753, to catherine brent of overwharton parish (aquia church); next, about 1771-74 to valinda wade, and last, to sarah jones of alexandria in 1804. he died in 1815 and was buried at long view.[145] the architecture which james wren created for the courthouse--as well as his churches and the numerous private buildings he designed and built under contract or for his friends--reflect the general level to which that art had advanced in colonial virginia. the styles were adapted from prototypes in england.[146] innovations which were made in adapting these styles to american use were, in most instances, attributable to the differences in building materials and the types of skilled labor which were available to the american builder. _the origin of the courthouse design._ the architectural design which james wren selected for the fairfax county courthouse utilized several features which already were familiar hallmarks of public buildings in colonial virginia, and in particular the colonial capitol at williamsburg--probably the most impressive public building in virginia at that time. the use of brick as building material, the use of two stories, topped by a cupola, and, most strikingly, the use of arches, all combined to suggest the influence of this capitol building on the courthouse design.[147] the courthouse was far from being a copy of the capitol and wren added to these familiar features several new ones that made the courthouse an architectural innovation in its own right. when it was completed in 1800, the fairfax county courthouse was the first example of a new design which architectural historians have called "the town hall style,"[148] and have traced to english town halls of the late seventeenth and eighteenth centuries. like the fairfax county courthouse, these town halls were two-story brick or stone buildings which presented to their front a gable-end, ground-floor arcade (or piazza) covering the main opening onto the street, an entrance set into the end wall, and, frequently, a cupola. the town halls of blandford in dorset (1734), and amersham in buckinghamshire (1682) illustrate these features with variations of details. no documentary evidence has been found to show how james wren evolved his design for the fairfax county courthouse; but it seems probable that he knew of this style that was enjoying current popularity in england, and that john bogue, the "undertaker" who built the courthouse, was familiar with the methods of constructing such buildings, for bogue had just come to america from england in 1795. while the similarity of geometric and structural exterior design strongly suggests that the fairfax county courthouse had its architectural ancestry in the english town halls of that period, the analogy is weaker when functions are compared. the courthouse for fairfax county was designed and used entirely as the seat of local government. the commercial activity that was attracted to the courthouse site on "court days" enjoyed no special privileges or facilities in the building. in contrast, town halls in eighteenth century england often served the dual purpose of providing a facility for transaction of public business and carrying on the commerce of the community. the style of the english town halls provided space in the open arcade of the ground floor to house a farmers' and tradesmen's market, and space in the second floor chamber for the town council to meet and do its work.[149] the origin of this type of building is not entirely clear. it is difficult to imagine it growing naturally in the political and social climate of the villages which grew up clustered around england's medieval castles and monasteries. at the time when town-and-market halls were common in the central squares of free towns in italy, germany and the low countries, they were absent in england. their appearance in england dates from the seventeenth century when town government developed its own identity, and when british political and cultural alliances with the dutch were established.[150] imported to virginia as a form of courthouse building, this town hall style became a popular prototype for buildings erected in several counties during the first three decades of the nineteenth century. after being introduced in fairfax county in 1800, this style appears in the nelson county courthouse built in 1807, the caroline county courthouse built in 1808, the sussex county courthouse built 1825-28, and the madison county courthouse built 1829-30. variations in the layout of the interior appeared in the use of the space over the arcade; sometimes it was used for the jury room, and at other times it was used to accommodate a balcony for spectators.[151] after 1824, however, a new style of courthouse building may be seen in the public buildings of virginia counties. based on the neo-classical lines of the state capitol, designed by thomas jefferson, there came into being a series of courthouses which were suggestive, if not actual, representations of the seat of state government.[152] _the courthouse._ in its exterior appearance the fairfax county courthouse underwent little change during the first century of its service. indeed, looking at the courthouse square in 1900, it might have seemed that the courthouse was the only building that had not been rebuilt, relocated or significantly expanded. the effects of passing time were more evident in the evolution of the layout and furnishings of the court. throughout the first half of the nineteenth century the interior of the courthouse probably remained similar to the layout described in colonial times. generally the focal point of the court chamber was a long table at which the county court was seated, flanked by smaller tables where the court's clerks did their work. customarily, also, a railing across the room separated this space from visitors whose business or curiosity led them to crowd in upon the court and its staff. as long as the gentlemen justices of the court were in reality, as well as name, the governing authority of the county, this arrangement of the courthouse chamber was the most sensible that could be suggested. as the purely judicial duties were isolated and assigned to the professional judges of the district court it became customary to renovate the court rooms to install the features which have become associated with litigation--the raised bench of the judge, the jury box, the witness stand, and counsels' tables. these changing ideas of what a court chamber should look like became established during the first half of the nineteenth century, and were reflected in the courthouses built in virginia during that period. therefore, when the fairfax county courthouse was restored to service after the civil war, its interior design resembled that which was customary for judicial chambers.[153] that the task of renovation and restoration was extensive is indicated by a report in the _alexandria gazette_ of october 17, 1862 stating that "the interior of the courthouse of fairfax county has been entirely destroyed. nothing remains of the building but the walls and the roof." moreover, the work of renovation had to be carried out under the double difficulty of shortages of funds and labor that was skilled in cabinetmaking and metalworking. in the end, the restoration of the courthouse was a gradual process in which first one and then another improvement was added. no grand design seems to have been followed or a complete record of accomplishments maintained. hence, evidence of the courthouse furnishings is seen in such separate notations in the court minute books as follow: october court, 1866. ordered that the com. of public buildings be instructed to purchase enough green-baise to cover the table in the bar and have it covered before the circuit court commenses.[154] december 11, 1876. ordered that the com'r of public buildings have the sawdust removed from the floor of the courtroom, and have said floor covered with a substantial cocoa matting at the expense of the court.[155] december court, 1882. ... some person or persons have entered the court house building in the night, without authority and have damaged said building and have greatly annoyed the citizens living nearby by violently ringing the bell. it is therefore ordered by the court, that such trespass ... will be punished to the full extent of the law.[156] the bell referred to by the court was a standard feature of many virginia courthouses, and was rung to announce the convening of court sessions. in the fairfax county courthouse, the bell was hung in a cupola on the roof, and rung with a bell-pull passing through the building's attic to the balcony level of the courtroom.[157] a major change in the appearance of the courtroom occurred with the installation of wooden benches in the public section of the chamber. tradition holds that the benches had been pews at one time in jerusalem baptist church located on the ox road between fairfax and fairfax station. this church had been built on the site of the old colonial "payne's church." illustrating the period when gaslights replaced candles, an elaborate brass chandelier fitted for gas illumination has been found in the courthouse attic. it is possibly the fixture which the sheriff was directed at the february 1890 court to purchase, for a price not to exceed $25.00. in about 1902, electric lights were installed.[158] during the restoration of the courthouse following the civil war one major alteration of the exterior appearance of the courthouse occurred when the brickwork between the windows on the first and second floors was removed to change the windows into single two-story-long vertical openings. the courthouse windows remained this way until 1968 when renovation of the original section of the courthouse was carried out, and double rows were reestablished as they appeared in photographs taken during the civil war. [illustration: the old courthouse, 1800, prior to restoration in 1967.] [illustration: the old courthouse after restoration in 1967.] reportedly, another major refurbishment of the courtroom occurred about 1920. in keeping with the style of that time, the emphasis was on panelling with dark, polished woods, and moderately ornamental carving which achieved an appearance of massiveness and dignity. the judge's bench was located at the west end of the courtroom on a raised platform and behind a heavy wooden balustrade. against the west wall of the room and behind the judge's bench, wooden panelling covered the space from the southwest corner of the room to a doorway beside the bench which led into smaller chambers in the rear. this panelling was topped with a swan's neck pediment behind the judge's chair. at floor level, beside the judge's bench and behind the balustrade, were the witness stand and clerk's desk. the jury box was located along the south wall of the room and faced an enclosure where tables for counsel and reporters were placed. these, in turn, were separated from the public seats by a carved wooden balustrade. seating for the public on the ground floor was provided in two sections of wooden benches--the former church pews referred to earlier--separated by a center aisle. at the rear of this section was another balustrade setting it apart from the open space inside the door to the entrance arcade. the two fireplaces in the corners of the east end of the room were bricked-in and covered with plaster. on the south wall, a stairway provided access to the balcony over the open portion of the room adjacent to the outer entrance. from the rear of the balcony were doorways into a jury room and small office which occupied the second-floor space over the entrance arcade. three rows of benches, each raised one step above the one in front, provided additional seating space for visitors in the balcony. the ceiling of the courtroom was sheet metal (tin) with a pattern of ridges arranged in rectangular shapes. central heating was provided by hot water radiators. in 1929, an addition was constructed on the south side at the rear of the original courthouse, making an l-shaped building. in this process the clerk's office which was built in 1876 was torn down. harmony of scale, materials and style were maintained between the old and new sections.[159] [illustration: the old court room prior to restoration. photo by lee hubbard, 1966.] twenty years later, in 1951-56, the courthouse again was expanded by addition of a center block, and another wing identical with the original and first addition segments. at the rear (west side) of these new portions, two wings were added to house, respectively, the records of the clerk's office and a new, larger jail. with the completion of this construction, the old courtroom in the original wing of the building ceased to be used regularly for judicial business. two large courtrooms and several smaller chambers in the center block of the building provided facilities for hearing cases. the new and larger building also provided space for the offices of the county's elected officials and most of the major boards, commissions and administrative departments which comprised the county's government in the 1950's.[160] in both exterior and interior appearance, the courthouse additions of 1931 and 1954 were designed to harmonize with the original style james wren established in 1800. the use of brick, gable-end roof lines, proportioning of the scale of various segments of the building, compatible fenestration and colonial period styles in hardware and painting all contributed to this result. most influential of all in maintaining this architectural integrity, perhaps, was the use of archways and open arcades at the entrances to the center block and two wings. these open arcades, with their simple, undecorated keystone arches are the distinguishing features of the fairfax county courthouse in the 1970's as they were in 1800. [illustration: the central entrance to the 1954 addition to the courthouse.] notes--2. the court house [139] william o'neal, _architecture in virginia_, (new york: walker, 1968), p. 17, remarks that "traditionally, in virginia buildings housing civil government have been developed beyond the utilitarian. this tradition, of course, has given us not only a remarkable group of eighteenth and nineteenth century courthouses, but, just yesterday, the very beautiful city hall complex of norfolk by vincent king." [140] _university of virginia newsletter_, (charlottesville: institute of government, university of virginia), xliii, no. 11, (july 15, 1967). [141] a summary of these references is contained in melvin steadman, _falls church by fence and fireside_, (falls church, va.: falls church public library, 1964), pp. 463-520. [142] o'neal, _virginia architecture_, pp. 127, 133, 143, _minutes of the vestry, truro parish, virginia_, 1732-1785, (lorton, va.: pohick church, 1974), p. 114. [143] steadman, _falls church_, p. 471. [144] the genealogy and a summary history of the wren family, both in england and america, is in steadman, _falls church_, pp. 463-520. [145] janice artemel, "james wren, gentleman joiner," (unpublished manuscript, falls church, va., 1976). [146] according to sir banister fletcher, _a history of architecture_, rev. ed., (new york: scribners, 1963), p. 1126, "in general, the architecture of a particular area mirrored that of the homeland of the colonizers or settlers of that area, with modifications occasioned by climate, the types of building material obtainable, and the quality of labour available. thus, in seventeenth century new england building followed the pattern of english weather-boarded heavy timber-frame prototypes, while in eighteenth century virginia we find a 'georgian' architecture often almost indistinguishable from that of eighteenth century england." [147] carl feiss, "court houses of virginia," lecture delivered at the meeting of the latrobe (washington) chapter, society of architectural historians, held at the arts club of washington, november 8, 1968. [148] marcus whiffen, "the early courthouses of virginia," _journal of the society of architectural historians_, xviii, no. 1 (march 1959), pp. 2, 5-6. [149] thus the term "market hall" is sometimes also used to designate these buildings. at times, the market activities may even overshadow the building's associations with government, as in the case of blandford, dorset, where a sign on the building identifies it as the corn exchange, without mention of the council's chamber. [150] sir kenneth clark, in his book, _civilisation_. (new york: harper & row, 1969), pp. 194-220, describes the impact of dutch accomplishments in the arts, and the impact of their influence on such englishmen as christopher wren. the adoption of the dutch style of market hall in england may well have been a gradual one, utilizing the already familiar design of the house of a typical town tradesman, which presented to the street a series of arched openings where work was done and wares were displayed during the day. at night these arches were shuttered, and the tradesman had his living quarters on the second floor over his shop. sir banister fletcher, _a history of architecture_, (new york: scribners, 1961), p. 463. [151] whiffen, "early courthouses," p. 6. [152] william o'neal, _architecture in virginia_, (new york: walker, 1968), pp. 22-25. [153] whiffen, "early courthouses," p. 3. [154] fairfax county court minute book, 1863-1867, p. 484. [155] fairfax county court minute book, 1875-1879, p. 162. [156] fairfax county court minute book, 1882-1885, p. 34. [157] examination of the courthouse attic in july 1967 revealed a bell, complete with mounting and wheel, with the following inscription: "tw & rc smith alexandria 1844." it has not been determined when this bell was installed in or removed from the cupola. it was rehung in the cupola and rung again in 1976. [158] examination of the courthouse attic in july 1967 revealed a brass chandelier with six arms, approximately 24 inches long, fixed to a central hub. burners at the end of each arm were fitted to hold glass globes or lamp chimneys. fairfax county court minute book, 1888-1892, p. 216. the end of the gaslight era occurred shortly after 1900, when, according to thomas chapman, former clerk of circuit court, electric lights were installed in the clerk's office in 1902 and shortly thereafter in the courtroom. [159] interview with thomas chapman, former clerk of circuit court. [160] fairfax county board of supervisors minute books, no. 17, p. 4, november 21, 1949; no. 18, pp. 2-9, november 15, 1950, pp. 296-298, may 22, 1951. 3. restoration of the original wing of the courthouse, 1967 _origin of the restoration project._ after the second addition to the courthouse was completed in 1954, the old courtroom in the original wing of the building ceased to be the focal point of the court's activity. similarly, it ceased to receive the attention needed to deal with the natural deterioration produced by use and the passage of time. by the early 1960's these effects were evidenced by leaking roofs, unreliable plumbing in the heating system, cracked and crumbling plaster, loosened floors and hardware, and the like. in order to retain its usefulness, the original wing of the courthouse needed substantial renovation. at this time, an interest in the old courtroom was expressed by the fairfax county bar association and the county's newly formed historical landmarks preservation commission which together proposed that the work of renovation be done in such a way as to restore the original appearance of the courtroom. the bar association formed a special committee for restoration of the old court room under the chairmanship of c. douglas adams, jr., and the assistance of the board of supervisors was sought.[161] in december 1964, the board appropriated funds for developing a restoration plan. walter macomber, a local restoration architect who had done similar work on a number of early virginia landmarks, was retained to prepare the necessary plans. in march 1966, the bar association's committee reported the completion of this preliminary work to the board, and successfully secured the latter's approval together with an appropriation of $90,000 for actual construction work. this work was commenced without further delay and was completed in the spring of 1967.[162] _problems of the restoration._ while the work undertaken in 1965 and 1966 was at the time referred to as a restoration, it was in fact impossible under the circumstances to reproduce with complete accuracy the appearance of the courthouse in 1800. no descriptions of the courtroom or other records of building specifications had been found; nor was any special research in eighteenth century sources undertaken for this purpose. as a result, the work produced a courtroom with idealized colonial-period interior design and furnishings in a building shell with reconstructed floor plan and structural design of the early federal-period (during which it had initially been built). numerous difficult problems were faced in this reconstruction, and, for the most part, they were resolved in ways that served primarily to create a room with the atmosphere of virginia's colonial period, and secondarily to build an authentic replica of the fairfax courthouse as of any particular historical date. [illustration: floor plans.] an initial problem connected with the exterior alterations was that of securing bricks and mortar to match those of the original courthouse. bricks secured from a manufacturer of specialty bricks turned out to be a close match for the originals which were thought to have been fired from clay dug in fairfax county.[164] specially mixed mortar made from sand, lime and white cement also closely simulated the color and texture of the older mortar. bricks were laid in flemish bond which matched the courthouse and part of the old jail building. using these new materials, broken and crumbling bricks were replaced throughout the building, and the three long windows on both the north and south sides of the courthouse were altered to form two rows of smaller windows, with the space between the first and second-floor rows filled with new brickwork. this change in the fenestration restored the building to its appearance as shown in civil war photographs of the courthouse. shutters similar to those shown in the same pictures were added to the windows on both floors. on the roof, some repairs were needed to restore the slate shingles. in the cupola, wooden louvres were repaired, the cupola was painted, and a weathervane restored to the top. an existing galvanized sheet metal roof was allowed to remain unchanged. for the inside of the building there were no photographs or drawings of the earlier periods, and reconstruction was influenced largely by physical evidence disclosed as the interior was systematically dismantled down to the building's outer shell. when woodwork, hardware, plaster and flooring were removed, it was found that much of the framing timber was infested by termites, and had to be replaced. in this process numerous signs of earlier workmanship were revealed. beneath the existing tin-plate ceiling was a plastered ceiling and remnants of a painted frieze of red, yellow, blue and green. behind this ceiling were laths laid over hand-hewn oak rafters. a few of the original hand-split laths and hand-made nails remained in this ceiling. in its reconstruction, the ceiling was furred and replastered without any decoration. no lathwork was found on the side walls, and in the reconstruction fresh plaster was applied directly to the bricks.[165] [illustration: interior of the gutted courthouse during restoration in 1966. photo by lee hubbard.] the flooring which was removed from the central section of the courtroom sloped from the back (east end) of the room toward the judge's bench (at the west end). beneath this floor was an older floor of brick. it was not determined whether this brick work had been the original floor of the courtroom or whether another wooden floor had overlaid it prior to the one just removed. in its reconstruction, however, the architect specified that a flat floor of polished pine should be laid over the bricks.[166] in one part of the main floor the older brick work was allowed to remain exposed. this was in the vicinity of the fireplaces in the two corners of the open area at the rear (east end) of the courtroom. these two fireplaces were reopened and restored and their brickwork was extended to form spacious hearthstones. the corner fireplaces showed signs of a three-stage evolution. they were originally used as open fireplaces. holes in the brickwork above them suggested, however, that at some later time the open fireplaces were replaced by wood-burning or coal-burning stoves standing on the brick hearths with their stovepipes fitted into the chimneys. finally, when the stoves were replaced by central heating and hot water radiators, the entire fireplace wall was sealed with brick and plastered over. in their restoration the corner fireplaces were reopened and refurbished as they were thought to have appeared in their original condition. as the side walls were cleared of plaster, they showed signs of staircases from the ground level the balcony along the north as well as the south side of the courtroom. thus when the stairs along the south wall were replaced, a similar set of stairs was built and installed on the north side of the courtroom. no dates for the original installation or removal of these staircases were determined, and it was presumed that the dual staircases were part of the original design of the courthouse. a more difficult puzzle was presented by a series of holes in the outer wall aligned at the level of the balcony and about the size used for beams. speculation by the architect suggested that these holes might have been intended for use in extending the balcony along three sides of the courtroom instead of merely along the back end, or in covering the entire room and creating a full second story for the courthouse. no determination of their use was made, and they were disregarded in the reconstruction of the courtroom. [illustration: interior of restored courtroom facing the judges' bench. photo by charles baptie, 1971.] [illustration: interior of restored courtroom facing balcony. photo by lee hubbard, 1969.] still another mystery which was not solved in the restoration concerned the two chimneys located in the corners at the west end of the old courtroom. no fireplaces or hearthstones were found in the courtroom floor, and when the interior was dismantled it was discovered that the chimneys rested on beams above the courtroom ceiling. these chimneys were not utilized in reconstructing the courtroom, and the only suggestion offered was that they probably had been connected by long pipes to stoves in the room below.[167] two doors in the west wall of the courtroom on either side of the judge's bench presented a further problem since they were not part of the original 1800 building, but had been part of the addition built in 1929. one of these doors led into a set of judge's chambers and the other (in one corner) opened into a corridor leading to the main portion of the addition running south from the old courthouse. in the restoration these doors were retained, but fitted inconspicuously into the panelling behind the judge's bench. above the doors, the architect restored two windows which he felt had been part of the original building.[168] restoration of the judge's bench brought still more difficulties to maintaining the original design of the courtroom. as plaster was removed from the wall behind the judge's bench, the bricks showed marks of an arch. the judge's bench which ultimately was constructed and installed at the west end of the courtroom was, like the other woodwork, created by the architect "according to patterns used in colonial times."[169] other details of the interior were handled the same way. hardware used by the architect was all new, but used old designs. since the original colors used in the interior were not determined, the architect used white and gray shades of paint similar to those in colonial buildings. from the ceiling in the center of the courtroom were hung chandeliers found in the courthouse attic. while not of "colonial" design, they were used because they were considered appropriate due to former association with the courthouse. and, as noted earlier, the pews which possibly had been obtained from the jerusalem baptist church were retained in the restored courtroom.[170] _general setting and building site._ the original fairfax county courthouse today comprises the north end section of the courthouse building. together with its immediately adjacent grounds, the present courthouse complex occupies almost the entire four-acre tract which was the original site. this tract still forms a square near the center of the city of fairfax, at the intersections of two main roads, routes 236 (little river turnpike) and 123 (chain bridge road). the general setting is gently rolling terrain, and the courthouse site is on a slightly higher elevation than the surrounding area, with stone retaining walls on the two sides facing the turnpike and road. on the west side of the courthouse building is a parking lot occupying approximately two acres. the twelve-story county office building (massey building) completed in 1969 is located approximately 200 yards south and west of the courthouse. _the exterior_ _overall dimensions._ the restored, original courthouse building is a plain rectangle, 61 feet long by 32 feet wide. it is oriented with the long sides facing north and south, with the main entrance at the east end of the building. a portico extends across the entire east end of the building, covering an area 12 by 32 feet. the height of the building at the gable ends is 32 feet; and the height of the eaves from the ground is 21 feet. _foundations._ as originally built, the courthouse rested on brick foundation walls, anchored at the corners in brick piers, with a crawl space of approximately 1-1/2 to 2 feet in height beneath all but the front (east) quarter of the floor space. additional brick bases, approximately 18 inches square and resting on the ground, were located in the crawl space beneath the two columns supporting the courthouse balcony. in the late nineteenth century, a partial basement was dug beneath the central section of the courtroom.[171] as reconstructed, the exterior foundation walls were pointed up and repaired, and were strengthened by the addition of several new footings. across the back (west end) of the building, the crawl space was deepened to a uniform 3 feet, and four 12 ã� 12 inch brick piers were placed on concrete footings. in the center section of the courthouse, the basement walls were extended 1 foot to carry the joists of the new floor, the outside entrance was closed up, and a new staircase for the interior entrance was built at the south end of the basement. next to the basement toward the front (east end) of the building, another crawl space (measuring 8-1/2 ã� 25-1/2 feet) was deepened to a uniform 3 feet, and a new wall was built on the east side, extending the full width of the building. this new wall was 8 inches thick, and constructed of cinder block and brick, anchored with 16 ã� 16 ã� 12 inch concrete footings. beneath both crawl spaces and the basement a 3-inch thick concrete slab was laid. the crawl space did not extend to the front exterior wall of the building. a space of 13 ã� 30 feet across the front of the building, consisting of the area beneath the open entrance foyer of the courtroom, originally had been covered only by a layer of bricks resting on the bare ground. as reconstructed, this brick was taken up and re-laid on a 4-inch thick slab of concrete which had been poured on a base of 4 inches of crushed stone covered by polyethylene film. _walls._ the exterior walls of the courthouse are constructed of red brick, with new bricks specially selected during the 1967 restoration to match the remaining original materials, and laid in flemish bond, 1-1/2 feet thick. across the front of the building, the portico is entered through a series of arches supporting the second-floor front section of the building. the three arches across the front of the building are 7 feet wide and 11 feet high at the center of the arch. the arches at the north and south ends of the portico are 6-1/2 feet wide by 11 feet high. the brick columns supporting the arches are 1-1/2 feet square. the arches and columns are plain except for white marble keystones and white marble slabs, 6 inches thick, placed at the foot of each arch and serving as bases for the columns. _chimneys._ all five of the chimneys which the courthouse had in the early nineteenth century were retained in the reconstruction. the two chimneys on each of the north and south sides stand at points which correspond to the four corners of the courtroom, and rise 11-1/2 feet above the roofline at the eaves. in the center of the table end at the front of the building, the fifth chimney stands, extending 5 feet above the ridge of the roof. all five chimneys are corbelled with two courses of brick at the top, and with a single course of brick 1-1/2 feet below the chimney top. all of the chimneys measure 2 feet by 1 foot 9 inches. _doors and windows._ in the 1967 reconstruction of the courthouse, the fenestration was changed to resemble the appearance of the building in about 1861. accordingly the three tall (14-1/2 foot) existing windows on the north and south sides of the building were converted into two sets of smaller windows, one above the other, and regularly spaced along the sides of the courtroom. in the upper row, a fourth window was located over the arch in the portico, and serves the rooms in the second-floor chamber at the front of the building. the chamber also has two windows on the front of the building. the upper row windows are of a double-hung sash design, with 12 over 8 panes (9 inches ã� 10-3/4 inches) set in wooden frames and sills. overall dimensions of these windows are 4 ã� 5-1/2 feet. the three windows on the lower level are slightly larger--4 feet ã� 6 feet 9 inches, and have 12 over 12 panes. both rows of windows are shuttered; those of the upper row are louvred, and those in the lower row have solid panels.[172] on the ground level at the front of the building, the main doorway of the courthouse is located in the center of the wall, and flanked by one window on each side. the door is panelled, and 8-1/2 ã� 4-1/2 feet in size. in the reconstruction, new window sashes and a new door were installed, but the existing jambs were used wherever possible. all shutters, glazing materials and hardware used in the reconstruction were new. _roof._ the original roof of the courthouse was covered with slate shingles, and the reconstruction of the building merely applied repairs to these shingles as needed. little of the slate which remained in 1967 was thought to have dated from the original construction, however, because of the extensive repairs and renovations carried out after the civil war. _cupola._ the cupola, located at the ridge of the roof, 9-1/2 feet from the gable end at the front, was part of the original design of the courthouse and houses a bell once used to announce the convening of the court sessions. the cupola was constructed of white pine, and consists of a square box in which is mounted an octagonal compartment with louvred sides. topping the panelled portion of the cupola is an onion-shaped dome, culminating in a ball which, according to photographs over the years, served as a base for a weathervane or flagpole. in reconstruction, a weathervane found in the courthouse attic was installed on the cupola's top. the roofing of the cupola dome is sheet metal. _ornamentation._ the overall appearance of the courthouse is plain, and, with the possible exception of the cupola, there is only one feature which shows the intention to combine ornamentation with functionalism in the architectural design. this feature is a round "fan window" framed by a circle of bricks in the center of the gable end of the building's front wall. the lower half of this window consists of four pie-shaped wooden panels. the upper half of the window consists of louvres. _the interior_ _foyer._ the double doors in the center of the portico at the east end of the courthouse open inward into a foyer at the rear of the courtroom. this area is 29 feet long, the full width of the building. the width of the area varies, however, because of the fireplaces across each of the front corners and the curving rear edge of the central (or spectator) portion of the courtroom. at its narrowest point in front of the double doors the foyer is 10 feet 4 inches wide, and at its widest points on either end of the room, it is 12 feet wide. the foyer space is entirely open, with flooring composed of bricks (8 ã� 3-1/2 inches) varying in color from deep red to charcoal gray. these bricks are laid with three-quarter inch seams and white mortar. the fireplaces in the corners at each end of the foyer have square (2 foot-8 inch) openings, with brick lining and a 5 inch facing surrounding the opening and painted flat black. the fireplaces are entirely framed with plain architraves and friezes, and are topped with simple mantels. each fireplace measures 3 feet 11 inches wide by 4 feet 3 inches high. along the walls of the foyer, panelled wainscotting, painted white, is installed. because of the unevenness of the floor, the height of this wainscotting varies from 4 feet 2 inches to 4 feet 3 inches. its panels are of varying width, from 3 to 6 inches, and are beaded. at the base of the wainscotting is a 5-inch baseboard. above the wainscotting, the walls and ceiling are finished in plain plaster with walls painted mauve and the ceiling white. lighting needs are minimal because of four outside windows located in the foyer, and because of light received from the central section of the courtroom. on each side of the double door and at each end of the foyer lanterns are mounted on the wall. these fixtures are of the type commonly used as carriage gate or guardhouse lanterns, and are 9 ã� 6-1/2 ã� 5 inches, with glass panels on three sides set in dark metal frames. the tops are of curved metal designed to shield the lanterns from the wind. inside the lanterns, light comes from a single candle-shaped light bulb, set inside a small hurricane lamp chimney. the hardware on the double door consists of a box lock with the brass knob polished and the lock-box and keeper painted flat black. at the top and bottom of the door black metal shot bolts of designs commonly found in eighteenth century buildings are installed. _central section._ space for the seating of spectators is provided in the central section of the courtroom. the floor level of this section is raised 7-3/4 inches above the floor of the foyer, and free-standing wainscotting of the same style and height as are around the foyer walls separate the foyer from the central section. the floor of this section is constructed of 5-1/4 inch dark-stained pine boards. entry into this section is along two aisles at the sides, running between the spectator seats in the center of the room and the balcony staircases set against the walls on the north and south sides of the room. spectator seating is provided in five rows of benches of pine, with natural finish on the seats and back rests, white painted sides and bases, and natural cherry moldings along the top of the back rests and arms. along the base at the front of each bench, is a 6 inch strip painted black. the back of the back rest is painted white down to a point 6 inches above the floor, where a foot rest of dark-stained pine is installed, and below this the base is painted black. the five rows of benches in the center section are curved, generally following the arc of the edge of the raised flooring, and measure 17 feet 9 inches from end to end. each bench seats about twelve people. the walls of the center section are painted mauve, and the ceiling is white. there are no lighting fixtures in this section of the courtroom. at the rear of the central section, two lightly stained solid oak pillars support the balcony. _staircases._ staircases to the balcony are located along the north and south walls of the central section. the initial plans for reconstruction of the courtroom in 1967 called for only one staircase, on the south wall. the decision to add a staircase on the north side came during the reconstruction when evidence of an earlier staircase on that side was revealed as the plaster was removed. from this it was conjectured that the courthouse of the early nineteenth century had had two staircases, but that one had been abandoned in reconstructing the building after the civil war. the present stairways each have 18 steps with 8 inch risers and treads 2 feet 11 inches wide by 10 inches deep. they form a single flight, open style stairs, with no brackets and plain balusters, 1 inch square, painted white and supporting a cherry handrail. newel posts at the top and foot of the stairway have turned shafts with cube bases and capitals. a flat sphere of solid wood tops the capital of the newel post. beneath the staircase on the north side of the building is a closet, and on the south side is a stairway leading into the basement. the doors to this closet and stairway are made of vertical beaded boards similar to the wainscotting, each equipped with two "h" hinges of black metal having a pebble finish and black metal box locks with small polished brass doorknobs. _balcony._ the courtroom balcony contains three rows of wooden benches similar to those on the ground floor, except that they are straight instead of curved. the rows are arranged so the two rear benches are on daises raised 9 inches above the one in front. solid-panelled free-standing wainscotting is set along the back of the rearmost bench. the first two rows of benches are 17 feet 7-3/4 inches long, while the rear bench is 22 feet long, allowing space at each end for the steps of the raised dais. in front of these benches, across the full width of the balcony between the two staircases, is a railing of plain white spokes (matching the balusters of the staircase) and a plain cherry handrail 2 feet 11 inches in height. the ceiling of the balcony is painted flat white and the walls are mauve. white beaded board wainscotting standing 3 inches high is around the sides and rear wall of the balcony similar to that on the ground level. three recessed lights provide light for the balcony. _jury room._ at the rear of the balcony an aisle 3 feet wide runs the full width of the building, allowing passage behind the rows of balcony benches and access to the jury room through doors near each end of the aisle. the jury room uses the space above the first-floor portico, an area 12 ã� 19 feet. the doors to the room are 2 feet 10 inches by 6 feet 10 inches, with 4 panels. doors and frames are painted white, with brass doorknobs and modern locks set in the doors. the wall between the jury room and balcony is a new stud partition which is finished with white plaster, as is the ceiling. lighting is provided by 3 recessed lights set in the ceiling and equally spaced. the walls of the room have a 3-inch baseboard, but no wainscotting. centered in the exterior (east) wall of the room is a fireplace, reopened in the 1967 reconstruction. this fireplace measures 4 feet 6-1/2 inches by 4 feet 7-3/4 inches, and is framed with a plain white architrave and mantel. a hearth of brick extends 18 inches out from the fireplace. opposite the fireplace is a 12 by 18 inch plastered masonry pier extended up from the exterior wall at the rear of the portico on the first floor below. in the ceiling next to the pier is located a 30 by 36 inch opening into the attic, with a ladder built into the partition wall immediately below. _bench, bar and jury box._ across the front of the courtroom is a railing separating the judges bench, jury box, and space for counsel tables from the central section of the courtroom. this railing, similar to those of the staircases and balcony, stands 2 feet 8-1/2 inches high. gates 3 feet wide and mounted on double spring hinges are placed in the railing at the head of each side aisle in the central section. each gate has an s-curve wooden support built into it for added support. the enclosure formed by the railing or bar is raised 7-1/2 inches above the floor level of the central section, and is floored with yellow pine, tongue-and-groove, 3-inch wide flooring. in the center of this enclosure, against the west wall of the courtroom is the judge's bench, flanked on its right by the witness stand. the bench itself is relatively small, measuring 6 feet 5 inches across and 4 feet 7 inches from back to front. three steps on each side permit access from both directions, and have balustrades on the front side similar to the railings and other balustrades in the courtroom. on the wall behind the judge's bench, there are two, high 12-over-8 pane windows, backed by closed, full-louvred shutters. behind the shutters is the solid plaster wall of the present courthouse's main corridor. between and below these windows is a wooden raised-panel screen serving as a back for the judge's bench. two 6-panelled sections at each end of this screen are flanked by fluted pilasters with modified capitals supporting a plain entablature. between these sections are 3 panels, the two on either end being composed of 3 tiers of panels edged with fluted pilasters. the center element of this panel consists of two large raised rectangular panels topped by a semi-circular louvred wooden fan design, then a round keystone arch, the whole portion of the composition topped by a high monumental pediment. at its center point, the height of this composition is 8 feet 6 inches. this ornamental panelling also covers the space where doorways previously had been cut for passage between the courtroom and other portions of the courthouse as they were built from 1930 onward. prior to the 1967 reconstruction, a doorway in the west wall was located on the judge's left side as he sat on the bench. as presently reconstructed, this doorway has been closed and covered by panelling, but a new door was cut through on the judge's right-hand side, and the inside of the door is constructed and fitted so as to serve as the end piece of the ornamental woodwork behind the judge's bench. the jury box is in the southwest corner of the courtroom. across the front of the box is a panelled solid railing, standing 2 feet 8 inches from the floor of the west end of the courtroom. the jury box contains 2 rows of benches, each raised an 8-inch step above the one in front. the front row is 9 feet 3 inches long, with aisles 18 inches wide at each end allowing passage from the second row to the front, and openings in the railing. not having this function of access, the back row of the jury benches is 14 feet 1 inch in length. benches in the jury box are designed and constructed similar to those of the balcony. the witness box is located between the judge's bench and the jury box. this box is constructed of solid wooden screen, painted white and topped with a cherry handrail. the screen forming the back of the box is plain; the screen at the front is in the shape of half of an octagon, and the face of each element contains a single recessed panel similar to those on the front of the judge's bench. the side of the witness box facing the jury is open to allow entry into the box, and the side next to the judge's bench is formed by the side of that fixture. the flooring of the box is made of 3-inch wide, yellow pine boards, finished naturally, and the flooring is raised one step (7-1/2 inches) from the courtroom floor. the dimensions of the box are 2 feet 10 inches across and 3 feet 8 inches from back to front. illumination of the area of the bench and jury box is provided by a variety of fixtures. on the wall at the rear of the jury box two carriage gate or guardhouse lanterns are attached. opposite these, on the wall at the north side of the room, two other, similar lanterns are located. in the ceiling above the area enclosed by the bar, 10 recessed lights are installed in two rows of 4 lights across the front and rear sections, and a pair are located equidistant between these rows. hanging from the ceiling over the central area are chandeliers which were found in the attic of the courthouse during the 1967 reconstruction, and refurbished and wired for electric lights. the lighting fixtures consist of six 24-inch arms, made of hollow brass tubing, extending out from a central hub. the hub, in the shape of a cup and decorated with a series of radial ridges, is on the lower end of a 38-inch hollow brass shaft, equipped at the top with a hook for suspension from the ceiling. as installed in the courthouse, each chandelier hangs from a fixture in the ceiling by a metal chain approximately 5 feet long. at the end of each arm of the chandelier are plain disc-shaped bases (3 inches in diameter) which holds one candle-shaped electric socket and a glass hurricane lamp chimney. _basement._ a small basement measuring 11 feet in width lies across the center section of the courthouse. an interior entrance to this basement is provided by a staircase located at its south end. this stairway, 3 feet 6 inches wide with 7-3/4 inch risers, has 10 steps, and is not panelled or painted. at the present time, the basement is used to house heating and air conditioning equipment. small windows are located at both the north and south ends of the basement. approximately square, these windows measure 2 feet 2 inches by 2 feet 9 inches, with 3-over-2 panes (6 by 12 inches). both have sills composed of a single slab of stone 2 inches thick. both also are below ground level, and open into brick-lined spaces for light and air dug out by the wall's foundations. the space for the window on the north side of the building measures 4 feet 1 inch by 3 feet 3 inches. on the south side of the building, however, the dug-out space measures 7 feet 8 inches by 2 feet 9 inches and suggests that this was, at an earlier date, the point where an outside entrance to the basement was located. this is corroborated by markings on the inside of the basement wall which show that a doorway in the north end of the basement has been bricked up, and also that a second window similar to the existing one has been closed up with bricks, leaving the sill slab in place. from the basement, galvanized steel ducts covered with insulating material are run through the crawl spaces beneath the courtroom floor to outlets and intakes for circulation of air. these openings are located in the sills of the recessed windows of the courtroom and in the bases of the benches for spectators and jurors, and are covered with steel grilles painted to blend with the fixtures in which they are set. 3. restoration of the original wing of the courthouse, 1967 [161] other members of the special committee were edward d. gasson, james keith, john t. hazel, jr.; w. franklin gooding, assistant clerk of the courts; senior circuit judge paul e. brown; and bayard evans, chairman of the fairfax historical landmarks preservation commission. [162] the cost of restoration was originally estimated at $74,488, exclusive of architect's fee, which was to be 12 per cent of the total cost. ultimately, the cost of the work was slightly in excess of $84,500, including the architect's fee, according to the architect's records; fairfax county board of supervisors minute book #45, pp. 192, 301, 406; cost sheet, walter m. macomber. [163] the building contractor for this work was e. l. daniels. [164] interview with thomas chapman, former clerk of the circuit court. [165] the frieze was disregarded because it was not considered part of the original courtroom interior, and no drawings, photographs or descriptions of it were preserved. [166] the sloping floor which was replaced was not dated, but probably was installed when the courthouse was renovated following the civil war. [167] on this matter the following statement in the _northern virginia sun_, january 8, 1966, 1, is of interest: "anyone familiar with the old courthouse will have noticed that it has five chimneys. the two closest to the bench are resting on wood above the ceiling, macomber discovered. this, he said 'confused' him. he thinks that they probably were connected by long pipes to stoves in the courtroom. yet he is not sure. it appears to macomber that they were added at some later time, but he will not know until he examines them more closely during the restoration. if ... [there] are post-1800 andirons [in these fireplaces], out they will go in the restoration." in an interview on march 2, 1970, however, macomber stated he felt that these chimneys had been connected to stoves after the fireplaces which they served were blocked up. [168] the architect expressed the opinion that the addition to the west end of the courthouse dated from about 1900; _northern virginia sun_, january 8, 1966, 1. however, no documentary evidence from the county records supports this date; _fairfax county free press_, august 25, 1966. [169] transcript of interview with walter macomber, march 2, 1970. as to the arch marks, mr. macomber said: "on the front wall i found a semi-circle deeply incised in the brick wall. i concluded there had been an original arched design there and i reproduced such an arch as it might have looked based on my studies of colonial architecture." [170] transcript of interview with walter macomber, march 2, 1970, contains the following: question: do you know what the original color of the room was? macomber: no. but since most of the buildings of that period were either white or light gray, i used these colors. question: was any of the original ironwork left? macomber: no. the ones installed are new but made from old designs used in the colonial period. question: where did the old chandeliers you installed in the ceiling come from? macomber: they were discovered in storage. they are not colonial, but since they were probably used at some time i thought it appropriate to use them. question: where did you get your ideas for the woodwork? macomber: i created it according to patterns used in colonial times. the benches were brought in after the civil war and had come from the payne [jerusalem] baptist church. i thought it appropriate to use them. [171] _fairfax county free press_, august 25, 1966; the basement measured 11 ã� 25-1/2 feet and was located across the midsection of the building. at the north end of the basement a stairway led to an outside entrance, and at the south end another stairway provided interior access. the basement was lined with 8-inch thick brick walls, and was divided into two rooms of approximately equal size connected by a doorway 2-1/2 feet wide. [172] prior to the reconstruction of the courthouse in 1967, the shutters at the windows on the first floor of the front of the building were louvred in the top half and solid panel in the lower half. in the reconstruction, these shutters were replaced using shutters with solid panels. appendix a fairfax county clerks of the court 1742-1976 sources: frederick johnston, _memorials of old virginia clerks_; fairfax county court order books. catesby cocke 1742-46 john graham 1746-52 peter wagener 1752-72 peter wagener, jr. 1772-98 george deneale 1798-1801 william moss 1801-33 f. d. richardson, _pro tem_ 1833-35 thomas moss 1835-39 alfred moss, _pro tem_ oct.-nov., 1839 s. m. ball 1839-52 alfred moss 1852-61 henry t. brooks (military) 1861-65 w. b. gooding (military) 1865-66 william m. fitzhugh (military) 1866-67 f. d. richardson, _pro tem_ 1866-69 d. f. dulany (military) 1869-70 f. d. richardson 1870-80 f. w. richardson, _pro tem_ 1880-81 f. w. richardson 1881-87 w. e. graham 1887-1903 f. w. richardson 1904-35 john m. whalen 1936-45 thomas p. chapman, jr. 1945-67 w. franklin gooding 1967-75 james e. hoofnagle 1976appendix b justices and judges of the fairfax county, circuit and district courts 1742-1976 lists compiled by e. sprouse, p. howe, v. peters, a. lewis, and n. netherton. (because of missing books and records, this listing is incomplete.) first commission for fairfax county, _1742_ william fairfax john colvill richard osborne jeremiah bronaugh lewis elzey william payne thomas pearson john minor william henry terrett john gregg gerard alexander edward barry daniel jennings thomas arbuthnot (_1742-1748_ fairfax county court order books are missing.) _1749_ john minor william h. terrett daniel jennings john carlyle william ramsay charles broadwater daniel mccarty john colvill moses linton lewis ellzey william payne richard osborn george w. fairfax anthony russell joseph watkins george mason jeremiah bronaugh thomas, sixth lord fairfax chief justice stephen lewis _1750_ john west lawrence washington catesby cocke _1752_ fielding turner _1753_ thomas colvill _1754_ hugh west _1755_ john west, jr. sampson turley sampson darrell james hamilton oneas campbell _1757_ henry gunnell _1758_ john hunter robert adam william bronaugh william payne, jr. _1759_ bryan fairfax townshend dade benjamin grayson edward blackburn lee massey william adams _1762_ hector ross _1764_ george william fairfax william ellzey john west george mason daniel mccarty john carlyle william ramsay charles broadwater thomas colvill dead john west, junior bryan fairfax sampson dorrell sher. townshend dade quo: henry gunnell _1767_ marmaduke beckwith robert adam john hunter dead richard sanford wm. payne benjamin grayson william adams edward blackburn hector ross & alexander henderson gent. george william fairfax lewis ellzey john west george mason daniel mccarty john carlyle wm. ramsay charles broadwater john west, junr bryan fairfax sampson dorrell quo: townshend dade henry gunnell wm. adams george washington & daniel french gent: _1768_ george w fairfax lewis ellzey john west george mason daniel mccarty john carlyle wm. ramsey charles broadwater john west junior bryan fairfax sampson darrel townshend dade quorum henry gunnell marmaduke beckwith robert adam richard sanford wm. payne benjamin grayson dead wm. adams hector ross alexander henderson george washington daniel french & edward payne gent: _1770_ john west george mason daniel mccarty john carlyle william ramsay charles broadwater john west junr bryan fairfax sampson darrell quor. henry gunnell robert adam william payne william adams hector ross alexander henderson george washington and edward payne gent. (_1774-1782_ fairfax county court order books are missing.) _1783_ john gibson george gilpin richard chichester robert mccrea charles little james hendricks josiah watson henry darne thomas lewis robert t. hooe _1784_ james wren david stuart david arell charles alexander _1785_ william deneale john moss _1786_ george minor william herbert _1787_ roger west richard conway thomas gunnell john fitzgerald william brown benjamin dulany thomas pollard james waugh john potts _1788_ martin cockburn william lyles (_1793-1796_ fairfax county court order books are missing.) _1797_ thompson mason james keith, jr. _1798_ francis adams john stewart alexander james coleman elisha c. dick charles eskridge john gunnell william gunnell john jackson william lane, jr. ludwell lee richard bland lee samuel love john potts, jr. richard ratcliffe william stanhope george summers william h. washington _1801_ francis adams charles alexander john s. alexander charles broadwater james coleman richard conway william deneale elisha c. dick benjamin dulany charles eskridge john fitzgerald george gilpin john gunnell thomas gunnell william gunnell william herbert robert t. hooe john jackson william lane, jr. ludwell lee richard b. lee charles little samuel love daniel mccarty thompson mason george minor john moss william payne john potts, jr. richard ratcliffe william stanhope david stewart (_sic._) george summers william h. washington james waugh john west roger west james wren now dead: love, fitzgerald, t. gunnell, r. west, j. gunnell, j. s. alexander, d. mccarty now moved: ludwell lee now refuses to qualify: summers now in d. c.: gilpin, hooe, alexander, conway, herbert, potts, dick, washington now disqualified: adams _1802_ augustine j. smith humphrey peake john keene james h. blake _1803_ samuel adams, jr. _1804_ richard coleman spencer jackson george graham _1807_ present: william gunnell, jr. william payne wm. deneale augustine j. smith hancock lee humphrey peake spencer jackson absent: george summers, gentleman persons to be recommended to the governor as proper persons to be commissioned by him as justices of the peace, or added to the commission of the peace for the county: john c. hunter john c. scott daniel mccarty chichester joseph powell edward dulin james l. triplett john y. ricketts george mason _1808_ present: william gunnell, jr. james waugh william lane, jr. thomson mason george summers humphrey peake george graham james l. triplett absent: james coleman william gunnell, jr. david stuart william payne william deneale thompson mason richard ratcliffe george summers augustine j. smith james waugh hancock lee humphrey peake george graham john coleman acting in _1816-17_ james coleman wm. lane, jr. thompson mason rich. ratcliffe john jackson augustine j. smith rich. m. scott humphrey peake rich. coleman spencer jackson john c. hunter james l. triplett john t. ricketts lawrence lewis wm. h. terrett henry gunnell, jr. alex'r waugh geo. minor geo. gunnell francis l. lee john w. ashton dan'l m. chichester geo. taylor wm. h. foote james waugh james sangster thomas moss dan'l dulany chas. g. broadwater wm. h. fitzhugh _1819-1826_ william a. g. dade acting in _1824_ rich. ratcliffe rich. m. scott lawrence lewis spencer jackson john c. hunter james l. triplett alex'r waugh geo. gunnell geo. mason augst. j. smith john w. ashton geo. taylor wm. h. foote james sangster thos. moss dan'l dulany chas. l. broadwater wm. h. fitzhugh chas. f. ford benedict m. lang eli offutt john jackson robt. ratcliffe chas. ratcliffe wm. e. beckwith john geanit mottrom ball rich. c. mason joshua hutchison sam'l summers _1831-1838_ john scott acting between _1825-42_ geo. millan silas burke rich. h. cockerille rich. c. mason dennis johnston john d. bell john gunnell frederick carper spencer m. ball edward sangster james millan thomas nevett john h. halley wm. ball john millan geo. mason john b. hunter henry fairfax wm. h. alexander frederick a. hunter wm. a. chichester alfred moss chas. c. stuart james hunter benj. f. rose james cloud fred. m. ford wm. r. selectman nelson conrad w. w. ball jno. powell jno. a. washington wm. h. wren _1839-52_ john scott john w. tyler _1852-55_ silas burke william ball wm. r. selectman w. w. ball john millan nelson conrad william h. wrenn james hunter ira williams thomas suddath george h. padgett james m. benton john r. dale thos. a. davis s. t. stuart levi burke james fox robert m. whaley abner brush john cowling f. w. flood francis e. johnston john w. hickey r. c. mason r. mcc. throckmorton w. w. elzey willis b. mccormick william barker f. m. ford francis c. davis john w. hickey spencer jackson john n. taylor john b. farr j. c. gunnell john r. grigsby _1858-60_ john c. gunnell tenley s. swink richard l. nevitt daniel kincheloe francis c. davis richard johnson w. b. mccormick f. c. davis ira williams francis e. johnston geo. h. padgett george burke john burke john dole john a. washington alfred leigh francis c. davis james hunter w. b. mccormick william l. lee wm. w. ellzey john cowling benjamin f. shreve william s. seitz james p. machen george padgett james simpson ---mann w. w. ball richard johnston b. d. utterback f. m. ford cyrus hickey a. s. mckenzie r. c. mason henry jenkins _1863-1867_ thomas p. brown james h. rice wm. terry andrew sagar herain cockrill samuel pullman reuben ives daniel w. lewis e. e. mason levi dening harry bready william a. ferguson william walters william t. rumsey talmadege thorne courtland lukens metrah makely john b. troth george b. ives josiah b. bowman job hawxhurst george f. m. walters j. w. barcroft george w. millan cyrus hickey james c. dentz b. d. utterback thomas e. carper _1866_ john powell lewis george francis davis _1867_ t. wm. barcroft w. b. bowman thomas e. carper francis c. davis james c. dentz m. e. fora wm. e. ford john b. troth job hawxhurst george b. ives richard johnson william lee alfred leigh courtland lukens metrah makely e. e. mason samuel pullman james h. rice w. t. rice jonathan roberts silas simpson daniel sims cyrus stickey b. d. utterback wm. f. mcwalters _1868_ t. wm. barcroft w. b. bowman thomas c. carper n. p. dennison francis c. davis james c. dentz wm. e. ford john b. troth job hawxhurst richard johnson george b. ives alfred leigh courtland lukens metrah makely e. e. mason sam pullman w. t. rice silas simpson daniel w. sims cyrus stickey r. d. utterback geo. f. m. walters _1869_ t. wm. barcroft w. b. bowman jacob brooks carter burton john l. detwiler wm. e. ford john b. troth george b. ives job hawxhurst richard johnson alfred leigh daniel w. m. lewis courtland lukens e. e. mason samuel pullman james h. rice t. w. rice samuel shaw silas simpson d. sims cyrus stickey b. d. utterback e. w. wakefield wm. walters _1870_ t. wm. barcroft w. b. bowman jacob brooks carter burton george b. ives job hawxhurst courtland lukens samuel pullman e. w. wakefield geo. f. w. walters _1870-1874_ richard h. cockerille _1874-1885_ james sangster _1886-1899_ d. m. chichester _1897-1903_ james m. love _virginia circuit court judges_ john m. tyler, 1852-1860 no record of a court held, 1861-1863 edward k. snead, 1864-1865 henry w. thomas, 1866-1868 w. willoughby, june 1869 lysander hill, november 1869 james keith, 1870-1894 c. e. nicol, 1895-1907 louis c. barely, 1907 j. b. t. thornton, 1908-1918 samuel g. brent, 1918-1928 howard w. smith, 1928-1930 walter t. mccarthy, 1931-1944 paul e. brown, 1944-1966 arthur w. sinclair, 1950-1977 harry l. carrico, 1956-1961 calvin van dyck, 1961-1967 albert v. bryan, jr., 1962-1971 barnard f. jennings, 1964 james keith, 1966 william g. plummer, 1967 lewis d. morris, 1968 percy thornton, jr., 1968-1977 burch millsap, 1968 james c. cacheris, 1971 thomas j. middleton, 1975 richard j. jamborsky, 1976_county general district court_ robert fitzgerald, 1951-1955 john corboy, 1954-1955 john a. rothrock, jr., 1955 j. mason grove, 1955 martin e. morris, 1965 donald c. crounse, 1966-1974 robert m. hurst, 1972 lewis hall griffith, 1974 g. william hammer, 1976_juvenile court judges_ frank l. deierhoi, 1965 richard j. jamborsky, 1968-1976 philip n. brophy, 1973 arnold b. kassabian, 1976 raymond o. kellam, 1976-1977 appendix c portraits in the old courthouse _james roberdeau allison_, (1864-1927), was born in orange county, virginia, grew up in centreville and taught school in fairfax and loudoun counties. he served the county as deputy treasurer, deputy sheriff and then was elected sheriff in 1904. consistently re-elected, he was sheriff until his death. _paul e. brown_, (1904-1968), was born in oklahoma, and moved to fairfax county with his family in 1919. he served as commonwealth attorney for three terms and was appointed judge of the fairfax county circuit court in 1944. he served as senior court judge from 1951 until his death. _daniel mccarty chichester_, (1834-1897), was born in fairfax county, served in the confederate army and later taught school in maryland and tennessee. he practiced law and was for a short time superintendent of schools and a delegate to the state legislature. he was elected judge of fairfax and alexandria (arlington) counties in 1886 and served until his death. _bryan fairfax_, (1737-1802), was born in westmoreland county, virginia and grew up at belvoir, in fairfax county. he was a justice of the fairfax county court and was ordained as an episcopal minister, serving as rector of fairfax parish 1790-1792. he held the title of eighth lord fairfax, baron of cameron, from 1800 until his death. _thomas, sixth lord fairfax, baron of cameron_, (1693-1781) was born at leeds castle in kent, england and immigrated to fairfax county in 1747. in 1749, he was commissioned a justice of the peace in each county within the entire northern neck, of which he was proprietor. he was a trustee of the town of alexandria and in 1754 became commandant of the frontier militia. he lived at belvoir until 1761, when he moved to "greenway court," his estate in the shenandoah valley where he spent the remainder of his life. _c. vernon ford_, (1871-1922), was born in the town of fairfax, and practiced law with his cousin, joseph e. willard. ford was appointed commonwealth's attorney for fairfax county in 1879 and, later elected, served in this capacity until his death. _william edwin graham_, (1850-1916), was born in fairfax county. he succeeded his father as clerk of the circuit court in 1887, serving until 1904, at which time he became deputy clerk under f. w. richardson, serving in this position until his death. _george johnston_, (1700-1766), was a son of dr. james johnston, who settled in maryland in the seventeenth century. he was a trustee of alexandria and practiced law there and in winchester. he represented fairfax county in the house of burgesses from 1758 until his death and was the author of certain resolutions presented by patrick henry in 1765, in opposition to the stamp act. _walter jones_, (1776-1861), was born in northumberland county, virginia and practiced law in fairfax and loudoun counties. appointed u. s. attorney for the district of columbia, 1804-1821, he practiced law before the u. s. supreme court and in virginia and maryland. he was one of the founders of the american colonization society. at the time of his death, he was major-general of the militia of the district of columbia. _william henry fitzhugh lee_, (1837-1891), was born at "arlington." he rose to the rank of major-general of cavalry in the confederate army. after the civil war, he was elected a state senator and then a congressman. he died at "ravensworth" in fairfax county while serving his second term in congress. _george mason_, (1725-1792), the fourth of that name in the virginia colony was born on dogue's neck, now mason neck, then in stafford county, but now in fairfax county. he was a justice of the county for most of his adult life, and a trustee of the town of alexandria. he built his home, "gunston hall" in 1758. in 1774, he was the principal author of the fairfax resolves, and in 1776, the principal writer of the virginia constitution and declaration of rights. the first ten amendments of the constitution were added, in part, because of his insistence on the necessity for a federal bill of rights. _robert walton moore_, (1859-1941), was born in the town of fairfax, and practiced law in the county. he served as a state senator and as a congressman. in 1933 he was appointed an assistant secretary of state, and in 1937, he became counselor of the department of state. throughout his adult life he was a member of numerous boards and commissions including the boards of visitors of the university of virginia and the college of william and mary. _ferdinand dawson richardson_, (----1880), entered the clerk's office in 1826 under william moss, clerk, and served as an assistant clerk or deputy clerk until 1870, when he was appointed clerk of the court, which position he held until his death. _frederick wilmer richardson_, (1853-1936), was born in fairfax, and was the son of f. d. richardson. he was deputy clerk under his father for nine years, succeeding him in 1880. elected to the new position of clerk of the circuit court in 1881, he served in that capacity until 1887, and again from 1904 to 1935. _henry wirt thomas_, (1812-1890), was born in loudoun county, virginia. he served as commonwealth's attorney in fairfax and was elected to the state legislature for a number of terms between 1841 and 1875. following the civil war, he was appointed judge of the ninth circuit court of virginia and later appointed lieutenant governor to fill out an unexpired term. _john webb tyler_, (1795-1862), served fairfax county as a judge in the circuit court of virginia from 1850-1861. the circuit included fairfax, prince william, loudoun and fauquier counties and the quarterly courts were held at the county seats, including fairfax court house. _george washington_, (1732-1799), was born in westmoreland county, virginia, and moved to "mount vernon" in fairfax county when he was sixteen. he became a surveyor, was elected a burgess, and appointed a justice of the fairfax county court. during the american revolution, he was appointed commander-in-chief of the armed forces of the united colonies. he was elected the first president of the united states of america under the new constitution in 1789, and again in 1793. _joseph edward willard_, (1865-1924), was born in washington, d. c. he practiced law, and was lieutenant governor of virginia, 1902-1906. president woodrow wilson appointed him minister to spain in 1913; later he was elevated to ambassador to spain. he owned the willard hotel in washington, but lived part of his life in the town of fairfax, at "layton hall." appendix d clerk's office excerpt from the _alexandria gazette and virginia advertiser_ july 15, 1853. notice to builders--sealed proposals will be received by the undersigned, commissioners, until saturday, the 16th day of july next, at 12 o'clock m, for taking down the present clerk's office of the circuit court of fairfax county, and rebuilding it on the same ground, with the materials and of the size and description, following, to wit: the foundation wall to be 2 feet below the surface, and 15 inches thick, of good stone, laid in mortar--the walls above the ground to be laid on the stone foundation, of brick, fourteen inches thick, and laid in good mortar,--the building to be 36 feet long by 24 feet wide including the walls, two stories high, and of the height of the present building, with a passage of entry 12 feet wide, adjoining the county court office; the passage wall also resting on a stone foundation and running from bottom to top--doors at each end of the entry, and one door to each of the rooms--each room to have four windows, twenty lights and 8 ã� 10 glass. the outer doors and window frames to be of cast iron, with stone sills, and the doors and window shutters to be covered with sheet iron, so as to be fire proof. the joists to be 2 ã� 10 inches, 16 inches apart on the lowest floor, resting upon a girder 6 ã� 12 inches; on the upper, without a girder, but properly braced, and the flooring of the rooms to be of the best north carolina boards, planed, tongued and grooved, and one and a quarter inches thick. the entry floor of best flagging brick, and the stairway of stone. the roofing to be of slate, of good quality, and the rafters to be substantially framed, and suitable for slate roof. to each of the rooms there is to be a fireplace. the woodwork is to be of the best material and workmanship, and corresponding with the other work. the house is to be guttered, and the iron, wood, and guttering to have two coats of paint on it. each door to be provided with suitable locks, the house walls plastered, and the whole completed on or before the last day of january 1854, at which time the work if approved by the commissioners, and also by the court, will be paid for. the proposals will state what the entire work will be done for, including the furnishing of all materials and labor, and, also, including the taking down of the old building and the use of such of the old materials as can be used for rebuilding; also for what the work will be done without regard to the old building, either in taking down or the use of old materials. notice to the successful bidder will be given within five days after opening the bids, and bond with security required from the person to whom the contract may be awarded, but the commissioners reserve the right to reject all. for further information, apply to either of the undersigned at fairfax court house. . newman burke ) geo. w. hunter, jr. ) comm'rs alfred moss ) appendix e courthouse restoration schedule of work to be performed in the reconstruction of the fairfax county courthouse, 1967 the following list comprises the schedule of work to be performed in the reconstruction of the fairfax county courthouse as set forth in the drawings prepared by walter m. macomber, architect for the project, in december 1965: _demolition_--remove main floor, subfloor and joists, taking care to leave two columns supporting balcony, and beams beneath floor untouched. remove all material in such a manner as to be re-usable if suitable. remove all woodwork within building: wainscot, railings, bench, window & door casing, etc. remove all frame partitions. remove cantilevered forward section of balcony back to existing beam, including stair. remove existing segmental-top two-storey windows at sides of building. remove sash only from existing small windows, unless jambs are rotted or otherwise found unsuitable for re-use. carefully remove all finished flooring in balcony and porch chamber, taking care not to damage subfloor. all heating pipes shall be removed and temporarily capped off below the first floor. all electrical wiring shall be removed and recapped below the first floor level except such as shall be needed for power tools, etc. contractor shall carefully remove all existing monuments and plaques within building, securely store them, and reset them upon completion at direction of architect. _materials_--all new joists and studs shall be of construction grade fir, free of all parasites & decay, having a moisture content no greater than 18%. all new subfloor to be 5/8" plyscord. apply sisalcraft paper between subfloor and finished floor. all flooring shall be 25/32" ã� 5-1/2" tongue and groove clear southern long leaf yellow pine, with relieved back & face edges slightly eased. the use of resawn used mill framing obtained from demolition companies is recommended in order to obtain straight grain. architect must be submitted samples of flooring for his approval before use. no pieces shorter than eight feet will be used, except where necessary at juncture of floor & wall. all stair treads shall be of 1' 8" thick clear yellow pine, bull-nosed. all interior woodwork to be of clear western white pine, s 4 s, of thickness as shown on plans. wainscot shall be of 3/4' thick by 3-5/8", 5-1/2" & 7-1/2" clear white pine, tongue & grooved, with a 1/4" bead on one face edge. doors, windows (sash & jamb) & balusters will be of clear western white pine. front door jamb shall be of 1-5/8 th. clear yellow pine. interior jambs of 1-1/8" th. cl. yellow pine. pew material to be of 1-1/8" clear yellow pine, s 4 s. rails to be birch for staining. moisture content for all to be no greater than 12%. _foundation work_--point up all existing foundations, piers, footings, etc. in basement and crawl space. replace all supporting beams rotted or otherwise unsuitable for re-use. excavate existing crawl space to a minimum of three feet below joists, and cover with 2-1/2-3" thick broom finished concrete slab, on 4 mil polyethylene film. move existing basement stair to location on plan, and floor-over opening thus made to top of stairs. _masonry_--carefully remove several sample face bricks from existing sidewalls, clean all but weather-face, and submit to locher brick co., glasgow, va. for duplication. remove segmental arches above two storey window openings, and extend window openings to same height as those of porch chamber windows. using existing downstairs window sills, brick-in two rough openings required by new windows. set steel lintels as called for on plan, and brick between vertical window openings. take care that the new brickwork appears continuous with existing masonry & is properly toothed & bonded. architect shall approve colour of mortar and duplicated brick before setting in place. repoint or rebuild existing chimneys & fireplaces. build new hearths of duplicated brick for downstairs fireplaces. repoint all existing brickwork, interior & exterior, as may be requisite. _weatherstripping_--all double-hung windows shall be weatherstripped with "chamberlain" no. 100-a zinc heavy-duty, full-sash units, with protection at head, meeting rail & sill. front entrance door shall have spring bronze weatherstripping all around, except at sill which is to receive "chamberlain" no. 869-a narrow brass threshhold with no. 826 bronze door hook. _insulation_--entire building to be covered with 4" thick batts of rock-wool or fibre-glass, combination aluminum foil insulation, applied immediately over lath between ceiling joists. _painting & decorating_--all woodwork, interior or exterior, shall be back primed with white lead before erection. all exterior woodwork to receive two coats of white lead in oil. remove loose or heavy accumulations of paint from existing woodwork before painting. all interior woodwork to receive one coat of primer, one coat half primer & half enamel & finish coat of semi-gloss enamel. plaster surfaces, when thoroughly dry, shall be washed with zinc sulphate neutralizer. first paint coat shall be wall size and primer. second coat two parts flat wall paint & one part size. finish with egg-shell wall paint. plaster cornice to receive first coat of size, second coat half size & half enamel. finish coat semi-gloss enamel. architect shall select all colours. _floor finishing_--floors shall be lightly sanded to remove stains and imperfections & to reasonably level. floors shall be stained, filled, shellaced and waxed. colour of stain shall be selected by architect. _lathing & plastering_--all interior surfaces of exterior masonry walls shall receive 3/8" gypsum lath securely nailed to 1" ã� 2" wood furring strips anchored to masonry. coat masonry before furring with "thoroseal" from standard dry wall products co., new eagle, penna. entire ceiling to be lathed with high-rib metal lath securely nailed directly to ceiling joists. stud partitions to receive 3/8" gypsum lath. ceiling of porch to receive high-rib metal lath applied over existing wood ceiling. all inside corners to receive expanded metal cornerite. outside corners to receive metal corner bead. apply strips of metal lath 6" wide over openings in stud partitions. all plaster cornices shall be run in place and formed over heavy gauge metal lath, with moulding plaster. all surfaces to be plastered minimum 3/4" thick (including lath) in two coats; brown & finish white. white coat to have smooth float sand finish. _glazing_--all windows to be glazed with 9" ã� 10-3/4" welded glass edge or metal edged insulating glass one-half inch thick composed of two sheets of 1/8" double strength "a" window glass with one-quarter inch air space between. all glass to be set in frames with glaziers points. back-bed w/thin coating of elastic glazing compound and putty-in smoothly. _screening_--all louvres in cupola to be back screened with fine mesh, copper screen wire. _finished hardware_--all hinges, locks, latches, shutter hardware, etc. shall be selected by the architect. allow $400.00 for finished hardware. list of sources _books_ black, j. b. _the reign of elizabeth, 1558-1603._ oxford: oxford university, 1936. bruce, p. a. _institutional history of virginia in the seventeenth century._ new york: putnam, 1910. catton, bruce. _a stillness at appomatox._ new york: cardinal giant edition, pocket books, inc., 1958. clark, sir kenneth. _civilisation._ new york: harper & row, 1969. cresswell, nicholas. _the journals of nicholas cresswell, 1774-1777._ pt. washington, n. y.: kennikat press, 1968. davis, jefferson. _the rise and fall of the confederate government._ new york: yoseloff, 1958. fairfax county board of supervisors. _industrial and historical sketch of fairfax county, virginia._ fairfax: county board of supervisors, 1907. fairfax county chamber of commerce. _historic, progressive fairfax county in old virginia._ alexandria: newell-cole. 1928. fennelly, catherine. _the new england village scene: 1800._ sturbridge: old sturbridge village, 1955. fleming, walter l. _the sequel of appomatox._ new haven: yale university, 1921. fletcher, sir banister. _a history of architecture._ new york: scribners, 1961. freeman, douglas s. _george washington: a biography: young washington._ new york: scribner, 1948. hall, wilmer, ed. _executive journals of the council of colonial virginia._ richmond: virginia state library, 1945. harrison, fairfax. _landmarks of old prince william._ richmond: old dominion press, 1924. reprint berryville, va.: chesapeake book co., 1964. hiden, martha. _how justice grew: virginia counties: an abstract of their formation._ williamsburg: virginia 350th anniversary celebration, 1957. _a hornbook of virginia history._ richmond: virginia state library. [1965]. kuhlman, charles. _the development of the flour-milling industry in the united states._ boston: houghton mifflin, 1929. martin, joseph. _gazetteer of virginia and the district of columbia._ charlottesville, 1835. mcdanel, ralph. _the virginia constitutional convention of 1891-92._ baltimore: johns hopkins university press, 1928. mcilwaine, h. r., ed. _journals of the house of burgesses, 1742-49._ richmond, 1909. _minutes of the vestry, truro parish, virginia, 1732-1785._ lorton, va.: pohick church, 1974. moore, gay m. _seaport on the potomac._ richmond: garrett & massie, 1949. morison, samuel e. and commager, henry s. _the growth of the american republic._ new york: oxford, 1937. o'neal, william. _architecture in virginia._ new york: walker, 1968. payne, lloyd. _the miller in eighteenth century virginia._ williamsburg: colonial williamsburg, 1963. porter, albert o. _county government in virginia._ new york: columbia university press, 1947. powell, mary g. _the history of old alexandria, virginia from july 13, 1749 to may 24, 1861._ richmond: william byrd press, 1928. _programme of the virginia good roads convention._ roanoke: stone printing co. [1894]. prussing, eugene e. _the estate of george washington, deceased._ boston: little, brown, and co., 1927. rives, william c. _history of the life and times of james madison._ boston: little, brown, 1873. roman, alfred. _military operations of gen. beauregard._ new york: harper & bros., 1884. rust, jeanne. _history of the town of fairfax._ washington: moore & moore, 1960. steadman, melvin. _falls church by fence and fireside._ falls church, va.: falls church public library, 1964. sydnor, charles. _american revolutionaries in the making._ new york: collier, 1962. wayland, john. _history of rockingham county, virginia._ dayton, va.: ruebush-elkins, 1912. _articles_ anderson, robert. "the administration of justice in the counties of fairfax, and alexandria and the city of alexandria." _arlington historical magazine_, ii (1961): 1. andrews, marshall. "a history of railroads in fairfax county." _yearbook of the historical society of fairfax county_," iii (1954): 30-31. burke, elizabeth. "our heritage: a history of fairfax county." _yearbook of the historical society of fairfax county._ 1956-7. chapman, thomas, jr. "the secession election in fairfax county, may 23, 1861." _yearbook of the historical society of fairfax county_, iv (1955): 50. hyman, sidney. "empire of liberty." _with heritage so rich._ new york: random house, 1966. "letters of george mason to zachariah johnston." _tyler's quarterly review_, v. (january 1924.) "martha washington's will and the story of its loss and recovery by fairfax county." _yearbook of the historical society of fairfax county, virginia_, ii (1952-53): 40-62. moore, william c. "jeremiah moore: 1746-1815." _william and mary quarterly_, 2d ser. xiii, 18, 21. smith, governor william. "the skirmish at fairfax court house." _the fairfax county centennial commission._ vienna, virginia: 1961. _university of virginia newsletter._ charlottesville: institute of government, university of virginia. xliii (july 15, 1967): 1. whiffen, marcus. "the early courthouses of virginia." _journal of the society of architectural historians._ xviii (march 1959): 1. _public records_ fairfax county board of supervisors _annual report_, 1969. fairfax county board of supervisors minute books fairfax county court minute books fairfax county deed books fairfax county record of surveys, 1742-1850. northern neck grant books virginia laws _interviews and unpublished works_ architectural drawings, 1951-1956, facilities management office, county of fairfax. artemel, janice, "james wren, gentleman joiner," (unpublished manuscript) falls church, va., 1976. chapman, thomas. fairfax county, virginia. interview, 13 february 1970. feiss, carl. "court houses of virginia," lecture. latrobe (washington) chapter, society of architectural historians, 8 november 1968. macomber, walter. fairfax, virginia. interview, 2 march 1970. moger, allen w. "the rebuilding of the old dominion," (unpublished doctoral dissertation) columbia university, 1940. sprouse, edith m., ed. fairfax county abstracts: court order books 1749-1792. _newspapers_ _alexandria gazette_ _columbia mirror & alexandria advertiser_ _fairfax county free press_ _fairfax herald_ _fairfax news_ _northern virginia sun_ _virginia gazette_ _washington post_ board of supervisors john f. herrity, chairman martha v. pennino, vice-chairman joseph alexander warren i. cikins alan h. magazine audrey moore james m. scott john p. shacochis marie b. travesky history commission edith m. sprouse, chairman donie rieger, vice-chairman bernard n. boston c. j. s. durham william elkjer denzil o. evans mary m. fahringer ceres gaskins john p. liberty virginia b. peters mayo s. stuntz charles cecil wall architectural review board john j. gattuso, chairman glenn ovrevik, vice-chairman thomas cagley donald c. cannon donald r. chandler donovan e. hower louis papa s. richard rio james d. webber mary m. fahringer, ex officio office of comprehensive planning theodore j. wessel, director peter t. johnson, branch chief nan netherton, historian elizabeth david, historic preservation planner donald sweig, research historian jay linard, copy editor annette thomas, copy preparation gloria matthews, designer robin pedlar, assistant [illustration: back cover photo, court papers by bernie boston, 1976.] +--------------------------------------------------------------------+ | transcriber's note. | | | | copyright material in the original (the image on p. 76) has been | | omitted from this ebook. | | | | no anchors for footnotes 54 and 163 are present in the text. | | | | discrepancies have been preserved between titles in the list of | | illustrations and the illustrations themselves. | | | +--------------------------------------------------------------------+ gutenberg department of the interior ethnological survey publications volume iv, part i studies in moro history, law, and religion by najeeb m. saleeby manila bureau of public printing 1905 letter of transmittal department of the interior, the ethnological survey, manila, december 21, 1904. sir: i have the honor to transmit a series of papers on moro history, law, and religion consisting of original studies and translations from moro texts made by dr. najeeb m. saleeby. i recommend that these papers be published as part i of volume iv of the scientific studies edited by the survey. very respectfully, merton l. miller, acting chief of the ethnological survey. hon. dean c. worcester, secretary of the interior, manila, p. i. contents page chapter i history of magindanao 11 magindanao history and genealogies 11 introduction 11 the transliteration 11 geographical sketch of the chief moro settlements mentioned in the tarsila of mindanao 13 the mythology of mindanao 16 manuscripts: i. from adam to mohammed 20 genealogy of mohammed 20 translation 20 ii. genealogy of kabungsuwan and his coming to magindanao, or the conversion of magindanao to islam 21 introduction 21 translation 23 iii. genealogy of bwayan 25 introduction 25 translation 26 iv. history of the dumatus and the conversion of mindanao to islam 28 introduction 28 translation 29 v. oldest copy of the genealogy of magindanao and the iranun datus 31 introduction 31 translation 33 vi. history and genealogy of magindanao proper 36 introduction 36 translation 37 vii. genealogy of bagumbayan 41 introduction 41 translation 42 history of bagumbayan 47 viii. ancestors of the datus of mindanao 49 introduction 49 translation 49 history of magindanao 50 chapter ii laws of the moros 63 general introduction 63 the luwaran, or the laws of magindanao 64 introduction 64 translation of the luwaran, the magindanao code of laws 66 arabic marginal quotations of the luwaran 81 introduction 81 translation of the arabic marginal quotations of the luwaran 82 transliteration of articles i to viii of the luwaran 88 sulu codes 89 the principal sulu code 89 introduction 89 the code 90 the new sulu code 94 introduction 94 the code 95 chapter iii two sulu orations 101 sulu oration for the feast of ramadan 101 sulu friday oration 105 illustrations after page plate i. first page of an original manuscript copy of the luwaran 64 ii. second page of an original manuscript copy of the luwaran 64 iii. third page of an original manuscript copy of the luwaran 64 iv. fourth page of an original manuscript copy of the luwaran 64 v. first page of the sulu code made and used by sultan jamalu-l-a'lam 90 vi. second page of the sulu code made and used by sultan jamalu-l-a'lam 90 vii. third page of the sulu code made and used by sultan jamalu-l-a'lam 90 viii. fourth page of the sulu code made and used by sultan jamalu-l-a'lam 90 ix. first page of the new sulu code in the sulu dialect 94 x. second page of the new sulu code in the sulu dialect 94 xi. first page of the sulu oration for the feast of ramadan 102 xii. second page of the sulu oration for the feast of ramadan 102 xiii. third page of the sulu oration for the feast of ramadan 102 xiv. first page of the sulu friday oration 106 xv. second page of the sulu friday oration 106 xvi. third page of the sulu friday oration 106 diagrams no. 1. rulers of bwayan from the first datu, mamu 22 2. rulers of bwayan from maytum, to the present time 22 3. rulers of magindanao from kabungsuwan to sultan pakir mawlana kamza 36 4. rulers of magindanao from sultan pakir mawlana kamza to the present time 36 5. rulers of bagumbayan from raja bwayan 48 chapter i history of magindanao magindanao history and genealogies introduction the history of mindanao prior to the advent of islam is traditional and mythological, and no effort has been made to put it on record. with islam came knowledge, art, and civilization. a new system of government was instituted and its records were registered. tarsila [1] were written and the noble lineage of the datus was carefully kept. each sultanate or datuship kept a separate genealogy. these genealogies, called tarsila or salsila, were very limited in their scope and brief in their narration of events. they are our only source of written information on the early history of the moros, and are valuable on that account. previously the moros withheld these tarsila and kept them away from all foreigners and non-mohammedans; but their attitude has changed lately, and several different salsila were secured from the chief datus of the rio grande valley. the original manuscripts could not be bought, but exact and true copies of the same have been secured and translated and their translations are herein published for the first time. the transliteration these tarsila are written in the magindanao dialect with arabic characters, and a great part of their text is magindanao names which have never yet been expressed by means of romanic characters. in translating these tarsila such a large number of words have to be transliterated that it is deemed necessary to adopt a system of transliteration which can be easily understood by every english reader and which is more adequate to express magindanao sounds than either spanish or english. such a system is herein adopted and is briefly described as follows: with the exception of ng and sh, the characters used in this system are simple and represent simple sounds only. every radical modification of a certain simple sound is regarded as a different simple sound and is represented by a separate and distinct character. every compound sound is represented by those characters that express its simple constituent sounds. it is an unvarying rule in this system that every character represents an invariable sound and every sound has only one invariable character. the magindanao dialect has only twenty-seven simple sounds and can be expressed by twenty-seven simple characters. these characters are the following: a, a, i, i, u, u, u, b, d, g, ng, h, j, k l, m, n, ñ, p, q, r, s, sh, t, w, y, z the sounds which these characters represent conform very closely to the original roman sounds of the letters. a is the short sound of a; it is pronounced midway between the a in bad and the e in bed a is pronounced as the a in far, father i is pronounced as the i in fin, ill i is pronounced as the i in machine, police u is pronounced as the u in put, push u is pronounced as the u in rude, flute u is a midvowel, pronounced with the tongue slightly moved from its normal position; it is intermediate between u and e, and is somewhat related to the u in hurt b, d, k, l, m, n, p, r, s, t are pronounced as in english g is always hard, as the g in gold, get ng has a guttural-nasal sound like the ng in ring h has an aspirate sound and should be always pronounced like the h in hill, behind j is rarely used; when used it is pronounced like the s in adhesion, vision ñ has a distinct palato-nasal sound and is related to the spanish ñ in señor; it is generally followed by ya q is a clicking, guttural sound related to k sh is equivalent to sh in ship w is always consonantal and sounds like the w in we, twin, water y is always consonantal and sounds like the y in you, yes, beyond z is pronounced midway between z and s the triphthongs herein expressed by tsha and nya are used in words of malay origin, and are represented by single characters in malay and magindanao. in many cases when u precedes w and i precedes y the natives omit the u and the i, and the same word may be written either with or without the u or the i. when written they are pronounced very short; u at the beginning of a word, as in undu, unggu, is often omitted both in pronunciation and in writing. such words may be written ndu and nggu. to write magindanao words by means of arabic characters correctly a certain knowledge of arabic grammar and orthography is necessary. the moros lack that knowledge and write very inaccurately and inconsistently. they neither punctuate nor use the accent sign. in transliterating these tarsila that pronunciation which seemed consistent and characteristic of each tarsila was adopted in the transliteration of the same. the text is punctuated. the accent sign is used very frequently. it is generally omitted when the accent is upon the first syllable in words of two syllables and when it is upon the syllable containing the long vowel. some stress should be put on the last syllable as a rule. the magindanao tongue is energetic and strong. its pronunciation is generally forcible, the last syllable being spoken abruptly and with a certain amount of stress. the word mohammed is written with o in spite of the fact that it is pronounced with u sound in both arabic and magindanao. the combinations ay, ay, aw, aw are not diphthongs, but simple syllables. the y and w in these cases and in all cases where they precede a vowel have pure and distinct consonantal sounds. a geographical sketch of the chief moro settlements mentioned in the tarsila of mindanao the term mindanao [2] or magindanao was originally given to the town now known as cotabato and its immediate vicinity. as the power of the sultan of magindanao extended over the adjacent territory it was next applied to the lower rio grande valley and later to all the valley and the whole seacoast that was brought under the rule of the sultan. the word is derived from the root "danao," which means inundation by a river, lake, or sea. the derivative "mindanao" means "inundated" or "that which is inundated." "magindanao" means "that which has inundation." this is the most appropriate term which could have been given to this land. for more than 10 miles from the sea the rio grande, aided by the rise of the tide, periodically overflows its banks and floods all the adjacent lands. in the rainy season this inundation extends farther up and includes an extensive tract of country. the word "cotabato" is in moro kuta watu, which means a stone fort. batu is the equivalent of watu in malay, sulu, tagalog, and visaya. this name is very modern, for the older maps that are still in use give the name mindanao in place of cotabato. the little stream that rises in the sulphur springs of cotabato and empties into the rio grande at its junction with the matampay in front of the present guardhouse is still known as the stream of magindanao. the name of the rio grande in the magindanao dialect is "pulangi," which means "large river." the rio grande divides, 20 miles before it reaches the sea, into the north branch and the south branch. cotabato is situated on the left bank of the north branch, about 5 miles from its mouth. the hill of cotabato is called "tantawan," which means "extensive view." paygwan means "the place of washing," and is on the left bank of the river at its mouth and above the bar. the spanish maps give it as paiuan. tinundan is at the mouth of a dead estuary of the same name that joins the pulangi about half a mile above paygwan and on the same side. slangan is the western part of present cotabato and extends along the manday stream. the moros call the manday "masurut." simway extends along the river of the same name for about 2 miles from its mouth and lies about 4 miles north of cotabato. the matampay river is a dead stream which joins the pulangi at cotabato. tagiman is the name of an old settlement built on the matampay river some distance above cotabato. it is now called binilwan. matampay and lusudun were built on the matampay river east of cotabato. katitwan is an old settlement on the right bank of the river 3 miles below libungan. libungan is built at the junction of a river of the same name with the pulangi, about 9 miles above cotabato. the point at the fork is called tambao. three miles below tambao on the right bank of the south branch is the site of bagumbayan. three miles below bagumbayan on the left bank of the river is taviran or tapidan. ten miles below taviran comes tamontaka, which is nearly south of cotabato and about 4 miles distant. tamontaka is about 4 miles from the mouth of the south branch of the pulangi. lumbayanági lies a little below tamontaka, on the right bank of the river. immediately above the fork and on the left bank of the main river lies the old site of kabuntalan. fourteen miles above the fork lies dulawan, the settlement at present occupied by datu piang. here empties one of the largest tributaries of the pulangi, which is navigable by launches for 12 miles farther up, to sapakan, datu utu's main residence. rakungan lies in the foothills of the tiruray mountains about 12 miles south of sapakan. talayan lies in the foothills of the tiruray mountains 15 miles southwest of dulawan. two miles below dulawan lies the old site of bwayan, on the left bank of the pulangi. opposite bwayan and dulawan lies the land of kudarangan. tinunkup is reina regente and kabarukan is the wooded hill beyond. sarunayan is the stretch of country lying north of reina regente and northeast of kudarangan and extending to the base of the kulingtan mountains, which separate the rio grande valley from the ranao region. the country occupying the declivities of these mountains north of sarunayan is called pidatan. bagu ingud is an old settlement that lies along the left bank of the river about 16 or 20 miles above reina regente. matbangan is on the right bank of the river and extends a short distance below piket. the malitigaw or malidigaw is a large tributary of the pulangi, about 15 miles above piket. matinggawan is located at the junction of the kabakan tributary and about 30 miles above piket. it is the chief settlement of the last moro district in the rio grande valley whose farthest boundary is the mulita stream, which is about 115 miles by river above cotabato. immediately south of the mouth of the south branch of the rio grande and rising above the seashore at linuk is the lofty and picturesque pyramidal peak of mount kabalalan. from kabalalan and the hills of taviran there stretches an extensive mountainous region or table-land which extends as far south as the bay of sarangani. this table-land is designated as the tiruray table-land or mountains for the reason that its northern half is inhabited by the tribe of pagans of the same name who are not met with anywhere else. the bay of sarangani is called in moro sugud bwayan. sugud means "bay," and bwayan is the chief settlement at the head of the bay. north of the head of sarangani bay and at the southern terminus of one of the ranges of the apo system of mountains towers the picturesque and conical peak of mount matutun. matutun means "burning," and the mountain is an extinct volcano. lying between matutun on the east and the previously mentioned table-land on the west is the country of talik. north of talik lie lake buluan or bulwan and farther north lake ligwasan, which empties into the rio grande through a stream called maytum ig or black water. this junction occurs at kukmun, about 8 or 10 miles above reina regente. balabagan is about 10 miles south of malabang. magulalung is in the neighborhood of balabagan. the iranun sultanate was on the shore of illana bay, and the term iranun signifies, in general, the people who live along the shores of that bay. iranun is also pronounced and written as ilanun; hence the corrupted spanish name given to the bay. the former iranun sultanate must have occupied the country in the vicinity of malabang. tubuk is the territory immediately bordering on malabang to the north of the malabang stream. baras lies a few miles north of malabang. ramitan is in the immediate vicinity of baras. malalis is near tukurun. dinas is the principal settlement on the western coast of illana bay. kumaladan is at the head of dumanquilas bay. sibugay is the name of the large bay east of the zamboanga peninsula. the word "ranao" means a lake and is the name the moros give to the upland lake lying midway between malabang and iligan and to the region surrounding the lake. the mountain range separating the ranao table-land from the rio grande valley is called the kulingtan range on account of the resemblance its peaks bear to the knobs of the row of kulingtan on which the moros make their music. the highest peak in this range north of parang and above barira is supposed to be mount bita. the highest ridge west of ranao is called mount gurayn, at the base of which lies the settlement of bacolod or bakulud. the ranao settlements which are mentioned in the tarsila are kadingilan, bayan, makadar, and bakayawan in the south, and the bayabaw settlements of marawi (marahui), madaya, and others in the north; also sikun, didagun, and dupilas. at the time of the spanish invasion of mindanao all the southern and western shores of the island of mindanao except the eastern shore of illana bay were ruled and controlled by the sultan and datus of magindanao. the ranao inhabitants are related to the iranun in language and tribal characteristics. the word mindanao unless restricted by the sense of the sentence is generally used to mean the island of mindanao, while the term magindanao is limited to the old district or town of cotabato proper. the mythology of mindanao long ago, before the days of kabungsuwan, magindanao was covered by water and the sea extended all over the lowlands and nothing could be seen but mountains. the people lived on the highlands on both sides. they were numerous and prosperous, and many villages and settlements arose everywhere. but their prosperity and peace did not last very long. there appeared in the land pernicious monsters which devoured every human being they could reach. one of these terrible animals was called kurita. it had many limbs and lived partly on land and partly in the sea. it haunted mount kabalalan [3] and extirpated all animal life in its vicinity. the second was called tarabusaw. this ugly creature had the form of a man, but was very much larger. it was extremely voracious and spread terror far and wide. it haunted mount matutun and its neighborhood. the third was a monstrous bird called pah. [4] this bird was so large when on the wing that it covered the sun and produced darkness underneath. its egg was as large as a house. it haunted mount bita and the eastern ranao region. it devoured the people and devastated the land. the people were awe-struck, and those who escaped hid themselves in the caves of the mountains. the fourth was a dreadful bird, also, which had seven heads. it lived in mount gurayn and the adjacent country. the havoc was complete and the ruin of the land was awful. the sad news found its way to strange and far lands, and all nations felt sorry for the fate that befell mindanao. when the news reached raja indarapatra, the king of mantapuli, it grieved him very much and filled his heart with sympathy. raja indarapatra called his brother, raja sulayman (solomon) and asked him to come to mindanao to save the land from those destructive animals. raja sulayman was moved with sorrow, mingled with enthusiasm and zeal, and consented to come. raja indarapatra handed to his brother his ring and his kris, juru pakal, [5] and wished him safety and success. but before they parted raja indarapatra took a sapling and planted it in the ground in front of his window. this he thought was a sure sign by which he could tell what would happen to sulayman after his departure. he said to sulayman, "if this tree lives, you will live also; and if this tree dies, you will die too." raja sulayman left mantapuli and came over to mindanao in the air. he neither walked nor used a boat. the first place he reached was kabalalan. there he stood on the summit of the mountain and viewed the land and the villages, but he could not see a single human being anywhere. the sight was woeful, and raja sulayman exclaimed, "alas, how pitiful and dreadful is this devastation!" as sulayman uttered these words the whole mountain moved and shook, and suddenly there came out of the ground a dreadful animal which attacked sulayman and fixed its claws in his flesh. the minute sulayman saw the kurita he knew that it was the evil scourge of the land, and he immediately drew his sword and cut the kurita to pieces. from there sulayman went to matutun. there he saw greater devastation and a more awful condition of affairs. as he stood on the mountain he heard a noise in the forest and saw a movement in the trees. soon there appeared tarabusaw, which drew near and gave a loud yell. it cautioned sulayman and threatened to devour him. sulayman in his turn threatened to kill tarabusaw. the animal said to sulayman, "if you kill me, i shall die the death of a martyr," and as it said these words it broke large branches from the trees and assailed sulayman. the struggle lasted a long while, until at last the animal was exhausted and fell to the ground; thereupon sulayman struck it with his sword and killed it. as the animal was dying it looked up to sulayman and congratulated him on his success. sulayman answered and said, "your previous deeds brought this death on you." the next place sulayman went to was mount bita. here the devastation was worse still. sulayman passed by many houses, but they were all vacant and not a soul lived there. "alas, what havoc and what misfortune has befallen this country!" he exclaimed, as he went on. but suddenly there came a darkness upon the land and sulayman wondered what it could mean. he looked up to the sky and beheld a wonderful and huge bird descending from the sky upon him. he at once recognized the bird and understood its purpose, and as quick as he could draw his sword he struck the bird and cut off its wing. the bird fell dead, but its wing fell on sulayman and killed him. at this same time raja indarapatra was sitting in his window, and he looked and saw the little tree wither and dry up. "alas!" he said, "raja sulayman is dead;" and he wept. sad at heart but full of determination and desire for revenge, he got up, put on his sword and belt, and came over to mindanao to search for his brother. he traveled in the air with wonderful speed and came to kabalalan first. there he looked around and saw the bones of the kurita and concluded that his brother had been there and had gone. at matutun he saw the bones of tarabusaw, but sulayman was not there. so he passed on to mount bita and resumed the search. there he saw the dead bird lying on the ground, and as he lifted the severed wing, he saw the bones of sulayman, and recognized them by means of the sword that was lying by their side. as he looked at the sword and at the bones he was overwhelmed with grief and wept with tears. raising up his head he turned around and beheld a small jar of water near him. he knew that the jar was sent down from heaven, so he took it and poured its water on the bones of his brother, and his brother came to life again. sulayman stood up, greeted his brother, and talked with him. raja indarapatra had thought that sulayman was dead, but sulayman assured him that he had not been dead, but that he had been asleep. raja indarapatra rejoiced and life and happiness filled his heart. raja sulayman returned after that to mantapuli, but raja indarapatra continued his march to mount gurayn. there he met the dreadful bird that had seven heads and killed it with his sword, juru pakal. having destroyed all these noxious animals, and having restored peace and safety to the land, raja indarapatra set himself searching for the people that might have escaped destruction. he was of the opinion that some people must have contrived to hide in the earth and that they might be alive yet. one day during his search he saw a beautiful woman at some distance, and as he hastened to meet her she disappeared quickly through a hole in the ground where she was standing. having become tired and pressed with hunger, he sat down on a rock to rest. looking around for food, he saw a pot full of uncooked rice and a big fire on the ground in front of it. coming to the fire he placed it between his legs and put the pot over his knees to cook the rice. while so occupied he heard a person laugh and exclaim, "oh, what a powerful person this man is!" he turned around and, lo, there was an old woman near by looking at him and wondering how he could cook his rice on a fire between his legs. the woman drew nearer and conversed with raja indarapatra, who ate his rice and stood talking to her. he inquired of her about her escape and about the inhabitants of the land. she answered that most of them had been killed and devoured by the pernicious animals, but that a few were still alive. she and her old husband, she said, hid in a hollow tree and could not come out from their hiding place until raja sulayman killed the awful bird, pah. the rest of the people and the datu, she continued, hid in a cave in the ground and did not dare to come out again. he urged her to lead him to the cave and show him the people, and she did so. the cave was very large, and on one side of it were the apartments of the datu and his family. he was ushered into the presence of the datu and was quickly surrounded by all the people who were in the cave. he related to them his purpose and his mission and what he had accomplished and asked them to come out and reinhabit the land. there he saw again the beautiful girl whom he had observed at the opening of the cave. she was the daughter of the datu, and the datu gave her to him in marriage in appreciation of the good he had done for them and the salvation he had brought to the land. the people came out of the cave and returned to their homes, where they lived in peace and prosperity again. at this time the sea had withdrawn and the lowland had appeared. one day as raja indarapatra was considering his return home he remembered sulayman's ring and went out to search for it. during the search he found a net near the water and stopped to fish to replenish his provisions for the continuation of the march. the net caught a quantity of buganga fish, some of which he ate. inside one of the fish he found his ring. this cheered raja indarapatra's heart and completed his joy. later he bade his father-in-law and his wife good-bye and returned to mantapuli pleased and happy. raja indarapatra's wife was pregnant at the time of their parting and a few months later gave birth to twins, a boy and a girl. the boy's name was rinamuntaw and the girl's name was rinayung. these two persons are supposed to be the ancestors of some of the ranao tribes or datus. this narration was secured from datu kali adam, who learned it from the late maharaja layla of magindanao and from alad, one of the oldest and most intelligent moros living. alad says that mantapuli was a very great city far in the land of the sunset; where, exactly, he does not know, but he is sure it was beyond the sea. mantapuli was so large, he said, and its people were so numerous, that it blurred the eyes to look at them move; they crushed the bamboo very fine if it was laid in the street one day. raja indarapatra is the mythological hero of magindanao and mantapuli is his city. these names are very frequently mentioned in moro stories, and various miracles are ascribed to them. kabalalan, matutun, bita, and gurayn are the most prominent and picturesque peaks of mindanao and ranao with which the moros are familiar. the whole narration is native and genuine, and is typical of the magindanao style and superstitions. some arabic names and mohammedan expressions have crept into the story, but they are really foreign and scarcely affect the color of the story. the animal kurita seems to bear some resemblance to the big crocodiles that abound in the rio grande river. tarabusaw may signify a large variety of ape. a heinous bird is still worshiped and is greatly feared by the tirurays and manobos who live in the mountains south of cotabato. the hateful balbal, in which all moros believe, is described as a night bird, and its call is supposed to be familiar and distinctly audible every night. what relation the names of rinamuntaw and rinayung bear to the ancestors of the ranao moros it will be very interesting to find out in the future. manuscripts manuscript no. i from adam to mohammed the genealogy of mohammed this manuscript was copied from datu mastura's book. it relates, in the dialect of magindanao, what the moros of mindanao know about adam, the death of abel, and the ancestors of the prophet mohammed. the first line is arabic and is generally written at the beginning of every book they write. the second line is malay; this also is the rule with most moro writers. the moros derived what learning they have from malay and arabic sources, and consequently take pride in what malay and arabic they know and can write; hence their custom of beginning their books with an arabic and malay introduction. literal translation of manuscript no. i in the name of god the compassionate and the merciful this chapter speaks of the story of the prophet of god, adam. adam and sitti kawa (eve) begot first the twins abdu-l-lah and amata-l-lah. they also begot abdu-r-rakman and amatu-r-rakman, other twins. they also begot habil (abel) and kalima, who were twins also. they again begot kabil (cain) and aklayma, his sister; these also were twins. a story about habil and kabil kabil killed habil in order to take away his wife. adam and sitti kawa wept on the death of habil, therefore god sent jabrayil (gabriel) to admonish them. the lord said to jabrayil, "if they simply lament for their child, i will restore him to them." the lord then replaced him by the prophet of god, sit. sit begot yanas. yanas begot kinana. kinana begot mahalayla. mahalayla begot idris. idris begot uknuk. uknuk begot mustáwsalik. [6] lamik, nuk, samir, paksal, sakih, amir, palik, ragu, ruk, pakur, azara, ibrahim, ismayil, sabit, yaskib, yarab, batrik, taku, mukáwim, ádadi, adnani, madi, nazar, mudri, ilyas, mudákih, karima, kinana, nadri, malik, kahri, galib, lúway, kabu, múrat, kilab, kusay, abdu-l-manap, hasim, abdu-l-mútalib, abdu-l-lah, mohammed, may the mercy and the blessing of god be his. the father of baginda (caliph or sayid) ali was talib. the father of usman was apan. the father of umar was kattab. abu bakar was surely beloved by god. [the end] manuscript no. ii the genealogy of kabungsuwan and his coming to magindanao; or, the conversion of magindanao to islam introduction part i this manuscript is a copy of the original in the possession of datu mastura of magindanao. the original copy is neat and very well written. it gives first the descent of kabungsuwan from mohammed, then a narrative of his departure from juhur, his arrival in mindanao, and the conversion of the people of mindanao to islam. the latter half of it gives the genealogy of the reigning family of bwayan from pulwa to pakih mawlana and pakaru-d-din, his brother. it is a very good type of the style and composition of the mindanao dialect. it is original and borrows nothing of its text and form from either malay or arabic. the combination of the genealogy of bwayan with the story of the conversion of magindanao to islam brings the history of bwayan into attention before that of mindanao; but, as very little is known of the early history of bwayan, it matters not when it comes. the rule of bwayan extends all the way from the head of the delta or from the kakal (canal) to bagu-ingud, which is a few miles below piket. in fact the datus of the surrounding country, all through the upper valley of the rio grande, owed more or less allegiance to the rulers of bwayan through all ages. the sultan of bwayan is known as raja bwayan. the rajas of bwayan attained a distinction and a power second to none, except that of the sultan of magindanao. the greatest datus of bwayan who have figured prominently in the recent history of the country are datu utu and datu ali of tinunkup, both of whom will be referred to later. diagram no. 1 ends with sultan sakandar. the relation between him and sultan maytum, the next raja of bwayan, is not given in the records. the second diagram begins with sultan maytum and ends with the present generation of rulers. part ii diagrams nos. 1 and 2 show plainly that the sultanate of bwayan did not follow any direct line of succession, that the rajas of bwayan did not always stay at bwayan, and that bwayan was not the only capital of the sultanate. the datus and the sultans of the neighboring datuships who married the principal princesses of bwayan seem to have assumed the title of raja bwayan also. the order of succession was a very complicated one. it is not stated in the records nor can it be exactly inferred from the genealogies kept. sharif ali of sapakan gives the following order: 1. raja sirungan 2. sultan tambingag kaharu-d-din 3. sultan sabaraba jamalu-d-din 4. kayib alimu-d-din 5. malang jalalu-d-din 6. sahid amiru-d-din 7. sakandar jamalu-l-alam 8. pakir mawlana alimu-d-din 9. sultan maytum sharif afdal of dulawan gives the following order: 1. raja sirungan 2. datu maputi 3. tapudi 4. tamay 5. malang 6. sakandar, sultan of lakungan 7. burhan 8. jamalu-l-alam 9. banswil 10. sayid wapat 11. pakih 12. maytum these two orders represent the best opinions of the saraya or upper valley, but there is no doubt that both of them are wrong. the order of sharif ali is, generally speaking, nearer the truth. from an examination of the records the following order seems the best of all: 1. raja sirungan 2. datu maputi 3. tambingag 4. datu tapudi 5. baratamay 6. sabaraba 7. malang 8. manuk 9. sakandar 10. maytum sultan kayib given by sharif ali probably is baratamay. there is no indication in the records that tamay, burhan, jamalu-l-alam, and banswil were ever rajas of bwayan, as sharif afdal seems to think. the records that seem most reliable are those in the possession of datu mastura, which are herein translated. the missing link, as far as these records and the notes of the author are concerned, is the relation between sultan maytum and his predecessors. common opinion declares him to be a son of pakir mawlana, but this does not seem probable, and it is certainly not in the records of magindanao, though these are reasonably accurate and complete. sharif ali, in his list, makes no distinction between a successor and a son; most people have the same idea, which is very misleading, to say the least. from the facts obtainable it seems probable that sultan maytum was the son of either sultan sakandar of rakungan or datu maputi, the uncle of sakandar. this is corroborated by the fact that the chief line of descent has been in the line of datu maputi, the son of raja sirungan, and his grandson, sabaraba. the opinion of the sheikh-a-datu of mindanao is that sultan maytum was the son of datu maputi, who would be the most eligible to the succession. jamalu-l-alam mentioned here is sultan kaharu-d-din kuda of magindanao. sahid wapat, or amiru-d-din, is sultan japar sadik manamir of magindanao. mupat batwa is sultan dipatwan anwar. pakih mawlana alimu-d-din is sultan pakir mawlana kayru-d-din kamza. panglu is sultan pakaru-d-din. from sultan maytum down the succession is accurately known. the sultanate has evidently been divided. marajanun or bangun, the older brother, succeeded to bwayan and all the country lying on the left bank of the pulangi and the sapakan rivers and all the country between sapakan and the lakes of ligwasan and bulawan. bayaw, known as the sultan of kudarangan, succeeded to kudarangan and all the northern half of the sultanate. datu utu succeeded his father, marajanun, and lived first at bwayan. after the terrero campaign of 1886 he moved to sapakan. his full name is sultan anwaru-d-din utu. the sultan of kudarangan was succeeded by his son, the sultan of tambilawan. tambilawan is the name of the sultan's residence and lies on the right bank of the rio grande a short distance above kudarangan. the sultan of tambilawan is a weak leader, and the chief power of the land has fallen to his brother, datu ali, who is a noted warrior among the moros. literal translation of manuscript no. ii praise be to god. i have full satisfaction that god is my witness this book gives the genealogy of the descendants of the apostle of god who came into magindanao. it is learned that the apostle of god begot patima zuhrah, who begot sarip [7] hasan and sarip husayn. the latter begot sarip zayna-l-abidin; sarip mohammadu-l-bakir; sarip japar sadik; sarip ali; sarip isa; sarip akmad; sarip abdu-l-lah; sarip mohammad alawi; sarip ali; sarip alawi; sarip abdu-l-lah; sarip ali; sarip mohammad; sarip abdu-l-lah; sarip akmad; sarip ali zayna-l-abidin. sarip zayna-l-abidin came to juhur and heard that the sultan of juhur, sultan sulkarnayn, had a daughter called putri jusul asikin. the sarip married putri jusul asikin and begot sarip kabungsuwan. as sarip kubungsuwan grew up and reached maturity he obtained his father's permission and set out on a sea voyage with a large number of followers from juhur. as they got out to the open sea they unfurled their sails to make speed, but a very strong wind blew and scattered them in all directions, so that they lost track of one another. as a result sarip kabungsuwan arrived at magindanao. the others scattered to bulunay (bruney), kuran, tampasuk, sandakan, palimbang, bangjar, sulug, tubuk, and malabang. sarip kabungsuwan anchored at natúbakan, at the mouth of the rio grande. tabunaway and mamalu directed some people of magindanao to carry their net for them and went down to the mouth of the river. there they met sarip kabungsuwan, and tabunaway sent mamalu up the river to bring down all the men of magindanao. after the arrival of the men tabunaway invited kabungsuwan to accompany him to magindanao. kabungsuwan refused to accompany them unless they became moslems. tabunaway and mamalu then repeated their invitation and all of them promised to become moslems. kabungsuwan insisted that he would not land at all unless they came together then and there and were washed and became mohammedans. this they did, and on account of the bathing at that place they changed its name to paygwan. kabungsuwan then accompanied tabunaway and mamalu, and the men towed them up all the way from tinundan to magindanao. thus kabungsuwan converted to islam all the people of magindanao, matampay, slangan, simway, and katitwan. soon after his arrival in magindanao sarip kabungsuwan married putri tunina, whom mamalu found inside a stalk of bamboo. this occurred at the time tabunaway and mamalu were cutting bamboo to build their fish corral. as mamalu, who was felling the bamboo tree returned, tabunaway inquired whether all the tree was felled or not. mamalu answered that all the tree was felled except one young stalk. tabunaway then said, "finish it all, because it omens ill to our fish corral to leave that one alone." mamalu struck it and it fell down, and there came out of it a child who was called putri tunina. her little finger was wounded, for the bolo had cut through the bamboo. some time later sarip kabungsuwan and putri tunina begot three children--putri mamur, putri milagandi, and bay batula. putri mamur married malang-sa-ingud, the datu of bwayan. malang-sa-ingud died later, and pulwa, his brother, came down to magindanao and married the widow of his elder brother, putri mamur. malang-sa-ingud and pulwa were the children of budtul. budtul was the son of mamu, the first datu of bwayan. pulwa and putri mamur begot raja sirungan, who was the first raja of bwayan. raja sirungan begot datu maputi, tambingag, tangkwag, and the daughters kdaw, banitik, malilumbun, duni, and libu. datu maputi begot two daughters, gimbulanan and gawang. gawang married datu tapudi of tawlan and begot sabaraba and a daughter, dumbay. dumbay begot tamay, who married a concubine and begot linug-bulawan and the daughters nanun, pinayu, antanu, and putri. sabaraba begot datu maputi and malang, who was raja bwayan, in bwayan. malang begot sakandar, who was sultan of rakungan. tambingag begot burhan and the daughters kalima, tambil, and sinal. sinal married jamalu-l-alam, who was treacherously murdered. she bore banswil and kuning. kuning was married to sahid wapat and begot pakih mawlana and panglu, who was mupat hidayat, and the daughters salilang, entitled baya-labi, and gindulungan, who was the mother of baya-labi of lakungan. tangkwag begot mukarna and buntang, who was the son of a concubine. kdaw was married to makadulu and begot baratamay and bani. makadulu begot also undung and nawang by a concubine. baratamay married gimbulanan and begot lalanu, entitled baya budtung, who married sultan barahaman and died without offspring; she was overshadowed by panabwan, a lady of tajiman. baratamay and bani were both born of a princess; so one day baratamay said to bani, "you rule bwayan, for i am going away and shall be absent," and baratamay left for sulug. there he married a lady of sulug and begot pangyan ampay. some time after that baratamay returned to the land of bwayan and went up as far as bagu ingud. there he married a lady of bagu ingud and begot munawal and gangga. munawal married mupat batwa and begot manuk, raja bwayan in bagu ingud. manuk begot manman, tapudi, and raja muda of matingawan. manman was sultan of bagu ingud. baratamay begot also tuntu, who begot dungkulang, a datu of kabulukan, and ambuludtu, and ugu niga; also pandaligun, anib, kabaw, manabu, talibubu, danaw, and the daughters gayang and tundwan. these were all the children of baratamay--in all, fourteen. [the end] manuscript no. iii the genealogy of bwayan introduction this manuscript is copied from a scroll written for the sultan of kudarangan by twan kali, a noted moro judge who was in the service of the sultan. it was obtained through the favor of sharif afdal, the son-in-law of the late sultan. the few books or documents belonging to the family of bwayan or kudarangan that i have seen are neat and well written. the dialect spoken in saraya differs a little from that of magindanao, but in the main they are one and the same dialect. this manuscript is strictly magindanao in its dialect and in its style. the first two pages of this copy give the genealogy of kabungsuwan from mohammed and adam; it is similar to that of manuscripts nos. i and ii, and ends with putri mamur, the daughter of sarip kabungsuwan, who married pulwa, the first mohammedan datu of bwayan. the second part gives the descendants of pulwa and the genealogy of the rajas of bwayan. this is, however, incomplete and deficient. it stops at the seventh generation, which is practically midway, and does not distinctly state who were the rajas of bwayan. it is fuller than manuscript no. ii in giving the descendants of all the sons of raja sirungan, but it does not proceed in the main line of descent as far and as fully as manuscript no. ii. the original scroll from which this copy was taken is evidently older than datu mastura's copy. literal translation of manuscript no. iii part i ... mahlayl begot uknuk, who is idris. idris begot mustawsilik, lamik, the prophet of god nuh, samir, arpaksal, sakih, amir, palih, ragu, saruk, pakur, azara, the prophet of god ibrahim, ismayil, sabit, yuskab, yarab, yatrah, taku, makum, adadi, adnani, madi, nazar, madri, ilyas, mudrika, karima, kinana, nalil, malik, kahri, galib, lway, kabun, murrat, kilab, kusay, abdul-manap, hashim, abd-l-muttalib, abd-l-lah, mohammed, the apostle of god. the apostle of god, mohammed, begot patima zuhrah; sayid sarip husayn; sarip ali akbar and ali asgar and zayna-l-abidin and patima; sarip zayna-l-abidin begot sarip mohammed; bakir; sarip japar sadik; sarip ali; sarip mohammed; sarip isa; sarip akmad; sarip abdullah; sarip alawi; sarip mohammed; sarip alawi; sarip ali; sarip mohammed; sarip alawi; sarip abdu-r-rakman; sarip akmad; sarip abdullah; sarip ali; sarip mohammed; sarip abdullah; sarip akmad; sarip ali; sarip mohammed; sarip husayn; sarip ali bakar; sarip ali, not the former ali, but the one who came to juhur and married the sister of sultan iskandar of juhur. they begot sarip kabungsuwan. sarip kabungsuwan begot, in juhur, sambgan and a daughter, mazawang. some time after that sarip kabungsuwan came to magindanao and married putri tunina, whom tabunaway and mamalu found inside the bamboo. by putri tunina he begot putri milagandi and putri mamur. sarip kabungsuwan brought his children sambgan and mazawang to the town of magindanao. this finishes the book relative to the earlier ancestors. part ii the first ruler of bwayan was mamu. in the name of god the compassionate and merciful. the first datu of the town of bwayan was mamu. mamu begot budtul. budtul begot pulwa and malang-sa-ingud. pulwa married putri mamur in the town of magindanao. putri mamur was the daughter of sarip kabungsuwan from putri tunina, whom tabunaway and mamalu found inside the bamboo. pulwa begot raja sirungan from putri mamur. by another wife he begot dikaya; by a concubine, sababnun, butaku, and balatukay. raja sirungan begot datu maputi, kdaw, tambingag, tungkwang, binitis, malilimbun, duni, libu. the children of datu maputi were all girls. the oldest was gimbulanan, another was gawang. tapudi, a tawlan datu, married gayang and begot sabaraba and a daughter, dumbay. dumbay begot tamay. tamay married a concubine and begot linug bulawan and the daughters nanum, pinayu, antanu, and putri. sabaraba begot datu maputi and malang. by a concubine he begot kuba, ndaw, and taming. malang begot sakandar, who was entitled sultan of lakungan. kdaw married makadulu and begot baratamay, and bani, and nawung, a datu of talayan, and undung, a datu of matabangan. baratamay married gimbulanan, the daughter of datu maputi, and begot lalanu, the lady of budtung, who had no children. by a sulu lady baratamay begot pangyan ampay; by a lady of bagu ingud, munawal, danaw, gayang, and tindwan; by a concubine, ambuludtu, ugu niga, ani, gabaw, ganggay, manabu, talibubu, pundu, tuntu, sawal; by another concubine, pandaligan, he begot also magalang, who married a lady from lagindingan. tambingag, the son of raja sirungan, married sinal and begot burhan; by a concubine he begot kasim and tambil. tungkwang begot mukarna and buntang. binitis begot sayim, dimamamala, bunsal, piniyata, kasangkalan, miza, tapuli, buludan, salab; a daughter, kanggay, and dimakaling. malilimbun begot manding, the father of panalan samu. duni, the daughter of raja sirungan, married the datu of bansayan, whose name was arugung, and bore burwa, and a daughter called indingu. after the death of the datu of bansayan she married alip and bore ugu. dikaya, the son of pulwa by a concubine, begot duka. duka married a lady of malitigaw called rantyan, whose mother was agb. to duka and rantyan there were born bulus, manalidtu, pwi, and a daughter, miyandung. burwa married nungku, the sister of nuni, and begot muluk, nanak, banálak, mama-sa-palu, kalangit, and wapagáy. later malilimbu married balbal, the datu of magulaling, and bore abad, mama-rapat, and a daughter, gansawu. gansawu married uku, the son of punduma from ampas, and bore alawa-d-din, also called aluyudan and jannatu-n-nayim, and alim, and ariraw, and igang or buging. jannatu-n-nayim begot baduyan or adwi, inal, limbayan, sayimbu, bayu, mbayu. he also begot tungkaling, buliyungan, and anggurung by a concubine. adwi and dungklang married and there were born to them dunding, ratkan, pataw, gayang, ariraw, and pimbarat, who was sultan of balabagan. ratkan, the datu of isikun, begot dimalawang and marang. dimalawang begot arani. arani begot antaw, sayu, and arawa. arawa married bayu and begot baya. manuscript no. iv history of the dumatus and the conversion of mindanao to islam introduction this manuscript is a correct copy of the original which is in the possession of datu kali adam of kalangnan, one of the principal present representatives of the dumatus. the dumatus are a distinct class of the moros of magindanao who trace their origin back to the former chiefs of the country who reigned before the introduction of mohammedanism. the original was written by datu kali adam himself, copied from a previous manuscript handed down to him from his father, who was a prominent judge, with some later additions of his own. it was neither neat nor well kept. it abounds with grammatical mistakes and has several errors in the text. its style is mixed; ranao words, pronouns, and terminations occur; still, in general it is a fair specimen of the literature of the magindanao dialect. it is the best authority on its subject, and is greatly valued by the people. it is the oldest manuscript known on this subject. the ruler of magindanao at the time of kabungsuwan's arrival was tabunaway. tabunaway was not a datu; he was a timuway. the word timuway or timway means chief or leader, and is still generally used by the tirurays and manobos and other hill tribes. kabungsuwan evidently conquered magindanao, and its sovereignty passed over from tabunaway to him, and to his descendants after him. the moros greatly regard and respect every mohammedan who is related to the prophet, and look upon every arabian as of noble birth and equal in rank to their datu class. descent from kabungsuwan constitutes all their claim to nobility and their right to the datuship. the descendants of tabunaway are naturally jealous. they claim to have come from an arabian ancestor who is descended from the prophet, and take great pride in the fact. they assert that the datus omitted this part of the history from their books intentionally in order to give more importance to kabungsuwan and to their own descent. the descendants of tabunaway are called dumatus, which is the future tense of the verb datu. the dumatus are well known, and i have met several of them. chief among them i mention datu mawlana sa-magindanao and datu kali adam. the former has lately been favored with the honorary title of datu by datu mastura, because his mother was a datu's daughter and he personally deserved the honor. both datu mawlana and datu kali claim that sharif maraja, the father of tabunaway, was an uncle of sharif kabungsuwan and that he and his children were mohammedans prior to the arrival of kabungsuwan, though their people were not so until kabungsuwan converted them. the story that the angels brought paradise to mindanao does not appear in the other manuscripts, but it is generally believed by all the datus and people of magindanao. i heard both datu mastura and datu mawlana sa-magindanao affirm the fact. they say that a part of the white earth of paradise was left in the hill behind cotabato and they call it the sacred dust. it was the custom in magindanao to bring this earth before the new sultan after his appointment that he might step on it for the confirmation of his sultanate. they believed no sultan could be successful and prosperous in his reign unless he performed this rite. the last sultan who obeyed this custom was sultan untung qudratul-lah, datu mastura's father, during the latter part of whose reign the spaniards came into magindanao and occupied cotabato. the later three sultans did not perform this rite; this the moros cite as the cause of the decline of the sultans' power and the lack of prosperity in the country. they believe this white earth still exists in the hill of cotabato, but nobody can find it except the oldest living dumatus whose forefathers have not intermarried with either datus or the common people, and to whom the secret has been handed down from tabunaway. this they keep away from everybody except their children. the dumatus are a privileged class of people, and claim they can follow any datu they choose, and that they should not pay any tribute. they assert that when tabunaway resigned his sovereignty in favor of his older brother, kabungsuwan, he reserved this privilege for his children, which privilege kabungsuwan promised to respect. for these reasons the dumatus keep their own records of the history of their country, and the genealogy of their line. sambug, who is mentioned here, is stated to be the son of tabunaway. manuscript no. iii states that kabungsuwan had a son named sambgan, who was born in juhur. whether these two are one and the same name or not it is very difficult to say. probably they are two different names. literal translation of manuscript no. iv the genealogy and history of the people of mindanao the land of paradise was brought by the angels from the west (arabia) to mindanao. later the angels moved paradise to madinat, but the earth did not balance and tipped on the side of mindanao. they then measured the earth to find its center, but it had none. then the angels took paradise and carried it to mecca, but a part of it remained in mindanao. sharif awliya knew that and came to mindanao to search for it. he saw a column of smoke, and as he came to this smoke he found that it was a woman. he took her and married her and begot a daughter whose name was paramisúli, whom he left in the blessed land. afterwards there came from juhur sharif hasan and sharif maraja, who were brothers. sharif hasan came to sulu, and from him descended all the datus of sulu. sharif maraja had two sons, sharif bidayan and sharif timbangan. he or one of his sons lived at basilan. sharif hasan and sharif maraja were followed by sharif kabungsuwan, a nephew of sharif maraja. sharif maraja was the first mohammedan who came to bawangin, which is mindanao. he first came to slangan (the western part of cotabato), where he saw burak (an animal intermediate between a bird and a horse) light on a bamboo tree. burak slipped and let fall his load, which was the lady, paramisúli. sharif maraja dived into the river and brought up paramisúli; later he married her and begot several children. the oldest of his children was tabunaway, the youngest mamalu. the daughters were sarabanun and pindaw. some time after that sharif kabungsuwan came from juhur and anchored at tinundan (a stream or estuary very near the mouth of the rio grande of mindanao). there was nobody there then; but the sharif saw a taro plant and a cornstalk floating down, and said, "there must be some people at the head of this river; let us wait until they come down." later there came down the river manúmbali, the datu of slangan, with seven men, to fish at tinundan. they saw sharif kabungsuwan. the sharif called them, but they could not understand him. he beckoned to them, but one of them died on that account, and they were frightened and returned. later the people of katittwan, having heard of this, came down the river to see the sharif, but they also could not understand him, and one of their men died of the same cause. they again returned and told tabunaway, who came down the river and saw sharif kabungsuwan. the sharif called to tabunaway and mamalu, who both understood him and came into his boat. tabunaway saw the ring of sharif kabungsuwan, and the sharif observed the ring of tabunaway. the sharif then asked tabunaway how he had become possessed of this ring, and if he had bought or inherited it. tabunaway replied that he had not bought the ring, but that he had inherited it. "then," said the sharif, "you must be a descendant of my uncle." he then informed tabunaway of his relation to him, and they became acquainted with each other. they then went up the river together in the boat of sharif kabungsuwan and came to magindanao (which is cotabato). there kabungsuwan met sarabanun, the sister of tabunaway, and asked to marry her. tabunaway consented and the sharif married sarabanun, but she died before her child was born. after the death of his father tabunaway became datu of magindanao. sitti paramisúli, the mother of tabunaway, had asked her son to bury her comb, after her death, underneath her window. this he did. the comb grew and become a large bamboo tree. as mamalu was cutting the tree one day he found a lady in one of the bamboo joints which he had cut. the blow had reached her little finger and cut it slightly. he took the child to tabunaway who told mamalu to adopt her because he had no children. they called her putri tunina, because they thought their mother had come to life again. as she was a virgin and of age she was married to sharif kabungsuwan and bore three daughters. the first daughter was called mamuranda, and married pulwa, the datu of bwayan. the second was called milagandi, and married malang-sa-ingud, who is also a datu of bwayan. the third daughter was called putri batula. sambug, the son of tabunaway, married and begot dagansina. dagansina begot ampan; ampan begot alang; alang begot dumaya, who married duyuttanan, who is from liyámin in balabagan. dumaya begot lawana and mandawa and taluwa. lawana begot bansara. bansara begot iput and ibrahim and jubayr and the following daughters: lamyuna, kalima, and malubay, the mother of sultan izra of ramitan. from lamyuna descended mohammed, whose children are gayag and sakandar and undang. kalima bore antim. antim begot jayra and tunug. iput begot karija. ibrahim begot ugu. ugu begot mintal and umar, one of whom was a judge (kali). the judge begot ruranun and gansing and mamalu and a daughter called mandi. kali ruranun begot nyaw and tarawya and mangilay. mamalu begot kudarat and dawuntánan and mantag. nyaw begot jamarun and kawali. tarawya begot anggris and sayd. mangilay begot abbas and payag and dadaw. mandi begot gawi and mindang and inding. gawi begot lambway and bkaran and gandayra. mindang begot rakman. inding begot dindaw. manuscript no. v the oldest copy of the genealogy of magindanao and the iranun datus introduction this manuscript is a copy of the original which is in the possession of datu kali adam of kalangnan mentioned in the previous manuscript (no. iv). it is written partly in the mindanao dialect and partly in malay. it refers to three subjects and comprises three distinct parts. the first part includes the first three pages and three lines of the fourth page. the first two pages are written in the mindanao dialect and the rest in malay. it gives the genealogy of many of the iranun datus, but is very ambiguous and lacks interest. the malay part is written by the same mindanao author, no doubt, and is neither correctly written nor clear. this part has no special interest except for the student who desires to investigate the oldest records referring to the origin of the ruling datus of the country. the second part is much more interesting. it is the oldest record on hand referring to the genealogy of magindanao proper with distinct information as to the source from which it was obtained. it is all in malay, but it is so poorly written and composed that its translation is a very difficult task. pakir mawlana, the authority this book claims, was one of the most intelligent sultans magindanao had. the substance of this text was transmitted in malay by pakir mawlana himself to capt. thomas forest in the year 1775. it appears that there have always been in mindanao natives who could converse and write in malay. the statement of captain forest would lead one to infer that the book from which pakir mawlana translated was written in the native dialect, and not in malay. probably the text of this manuscript is not identical with that of pakir mawlana's copy, but derived from the same source and written in malay instead of magindanao. its text is by no means as reliable as that of manuscript no. vi, but it gives some very interesting information which is not mentioned in the other copies. sultan barahaman, to whom the principal source and authority of the tarsila is referred, was the fifth grandson of sarip kabungsuwan and the first grandson of sultan qudrat, the famous corralat of combés. he had several children who figured prominently in the history of the country, four of whom are quoted here as authorities, and who are surnamed sahid wapat, wapat batwa, jarnik, and sumannap. their full and exact titles were sultan japar sadik manamir, sultan dipatwan anwar, gugu jarnik, and datu ma-as sumannap. manamir was assassinated by his nephew, malinug, and is always referred to as sahid wapat, which means, in arabic, "dead martyr." jamalu-l-alam, the brother of barahaman, is sultan mohammed kaharu-d-din kuda, who usurped the sultanate after the death of his brother. pakih mawlana amiru din was the eldest son of sahid wapat, and his correct full title was sultan pakir mawlana mohammed kayru-d-din kamza. he is generally referred to as pakir mawlana, and is sometimes called pakih instead of pakir. though the text of this manuscript varies from that of no. vi, it very often mentions facts and names that are lacking in the latter and which help to complete the sense and the subject-matter of the tarsila. the first two words of the address paduk sari sultan do not belong to the mindanao dialect, but are malay. this tarsila ends with the children of barahaman and jamalu-l-alam, and evidently belongs to the period prior to the death of pakir mawlana, or his name and those of his brothers would otherwise have been mentioned. the third part is written in the magindanao dialect and comprises the twelfth and thirteenth pages only. it shows the exact ancestral relation that exists between the ruling datus of magindanao and the iranun datus, and throws considerable light upon the nature and the tribal characteristics of the datuships or moro communities. the principal ancestors of the sultans of ramitan, tubuk, dissan, and tapurug were umang nagu, anta, and umbun, respectively, and they were the grandchildren of dimasangkay, the brother of kapitan lawut bwisan, whose descendants are the sultans of magindanao. ramitan lies a little north of baras and malabang. tubuk is the principal district in the immediate vicinity of malabang. dissan lies on the north shore of lake lanao. being mainly written in malay, this manuscript is of no literary value at all. that part of it written in the magindanao dialect shows a slight admixture of the iranun dialect. both its composition and style are poor, and mistakes in spelling and writing abound. literal translation of manuscript no. v part i this is the genealogy of the forefathers of rahaban. [8] ami and palu were brothers from one father and one mother. ami begot mangqaw. mangqaw begot layna and linawan, and the sons of luntung and makabuyu. layna begot rahaban, kusin, malin, and usman. linawan begot anggab, amiru, nudin, and musa, and the daughters limbwan, ambay, and alima. luntung's sons were palu and mamangking; his daughters were idaw, ubaw, baylawa, and gnaw. makabuyu begot asan, ibrahim, kambal, dunggi, malnang, linaw, and ami. palu begot dingan, ansi, alumay, and a son, ganap. dingan begot sultan padinding. sultan padinding begot paramata, sultana wata, sultan alud, raja muda dawd of balangingi, badang, daga of lyangan, badwi, mawung, muna, and ktim. talama was the sister of maka-kuyung, the sultan of tapurug. dmak of tatarikun, the son of magi and dabulawan, begot aluyudan, palala, amilulung, dilabayan, zumukar, kandigan, makalinug, and midaray. midaray married a lady from tatarikun and begot matanug, tapu, mapundilu, and tumug. aluyudan begot anzang, dapamagi, laygu, and madayaw. madayaw begot ilunayn, datu kabu, and andabu. anzang begot antus. antus begot mpas. dapamagi begot adadang, aryung, and aryung begot bagang. layngu begot mangakut and mangakut begot daba. andabu begot maslang, kaluyunan, and umbayu. kaluyunan begot datu kayu. umbayu begot saygu. saygu begot rabsar, baypat, and binisa. binisa begot angudap and antus. matanug begot also angalin. angalin begot ujyaw and utuq. utuq begot abayug, kubag, angalin, and the daughter awyanu. abayug begot gi. gi begot saliling zaynudin. zaynudin begot ayad and the daughters ijag and alay. alay [9] bore tarid, bayutuga, and the daughter agayun. agayun* bore badri. badri begot datu gibang. datu gibang begot mama-sati and datu badar adayaw. datu badar begot mbayug. zaynudin saliling begot also the daughters nurun, the mother of apki, and agunuku, padangan, and layma, the grandmother of diping. part ii this book is the genealogy of the descendants of hashim and kureish, who came from mecca to mindanao, bwayan, and the land of ilanun. it was obtained from pakih mawlana mohammed amiru-din, who acquired it from his father, sahid wapat. sahid wapat and his brothers umar maya, wapat batwa, jarnik, and sumannap received it from their father, barahaman, who was surnamed minuli karakmatu-l-lah, and jamalu-l-alam. later it passed into the possession of kali akmad and sapak, [10] who married duyan. the descendant of the apostle of god, sarip mohammed, came to juhur and married a woman related to the sultan of juhur and begot sarip kabungsuwan, who came to mindanao and introduced the religion of islam. the ruler of mindanao then was raja tabunaway. kabungsuwan married banun, the sister of raja tabunaway, who died before any children were born to them. after that kabungsuwan married putri tunina, who became human and was begotten by mamalu out of the bamboo. putri tunina bore three daughters--putri milagandi, putri mamur, and putri batula. putri mamur married pulwa, raja bwayan. putri milagandi married malang-sa-ingud. putri batula married ambang. later sarip kabungsuwan married angintabu of malabang, whose mother was mazawang and whose father was sambahan. angintabu bore maka-alang, surnamed saripada, angintabu had a brother whose name was maka-apun. maka-alang married a bilan woman who was begotten out of a crow's egg, and begot bangkaya. bangkaya married two women of mindanao and begot two sons, dimasangkay and gugu sarikula, one from each wife. later he married maginut of malabang, the daughter of maka-apun, and begot kapitan lawut. dimasangkay married a woman of lusud, called mira, and another of simway who bore umun and butu-na-samar. butu-na-samar was surnamed jukulanu, but died young and had no children. dimasangkay married also ampas, the sister of sandab, and begot umburung. umburung married umun and begot nuni, who was surnamed amatanding. ampas married again pinduma. nuuni married gayang, the daughter of kapitan laawut bwisan and the sister of qudrat, who was surnamed mupat, and begot anta, nagu, umbun, and the daughters patawu, pindaw, bayu, and sa-ib. sarikula married a lady of sulug called raja putri, who was the sister of raja husayn, both of whom descended from the original rulers of sulug. raja putri begot one daughter, raja mampay. kapitan lawut married a lady of slangan called imbang, who descended from raja tabunaway, and begot a son called qudrat, and a daughter called gayang, who married nuni. qudrat married raja mampay and begot tiduray. tiduray married myayu of lwan and begot paramata asya, who was known as baya-labi. he married again angki, the daughter of natib syam by his wife sawakung of puntiyabaq, and begot two sons--barahaman, known as minuli sa-rakamatu-l-lah, and jamalu-l-alam. barahaman married a woman of tagman named panubawun and begot four sons--bagas, also known as raja muda; anwal, who was entitled paduka sari sultan and surnamed wapat batwa; jarnik, who was entitled gugu; and sumana, who was datu ma-as; also four daughters--ngway, lugung, awu, and tundug. by basing of sangir, the daughter of makalindi and timbang saribu, he begot manamir, who was entitled paduka sari sultan and surnamed sahid wapat; and tubu-tubu, entitled umar maya; maginut; atika; and patima. by a samal woman he begot datu sakaludan jamalu-d-din and manjanay. raja muda bagas begot ampwan, dayang, and bayaw by a concubine. jamalu-l-a'lam married sinal of bwayan and begot a son, banswil, and a daughter, karani. he also begot ija, ila, awu, ampan, and sayka-datu abdu-r-rakun. manamir married karani and banswil married manjanay, all of whom are first cousins, the children of barahaman and jamalu-l-a'lam. part iii amatunding married gayang, the sister of qudrat, and begot anta, nagu, and umbun and the daughters pindaw, dawa-dawa, bayu, sayib, and umang. umang was the grandmother of the sultan of ramitan. nagu was the grandfather of the sultan of tubuk. anta was the grandfather of the sultan sarip ulu of dissan. umbun was the grandfather of makakuyung, the sultan of tapurug. umbun begot burwa. burwa begot mama and nanak. nanak begot bnul, who married baya wata of kabuntalan. bnul left baya wata and went to unayan with an understanding that unless he returned in forty days their marriage would be null. bnul did not return, so baya wata married timbang sulug, and soon after gave birth to damda, whom she conceived by bnul. mana, the brother of nanak, married the daughter of the sister of the sultan of sulug and begot datu milbahar, bantilan, and datu adana. manuscript no. vi the history and genealogy of magindanao proper introduction this manuscript is a copy of the original which is in the possession of datu mastura, the best-informed datu of magindanao, and the son of sultan qudrat jamalu-l-a'lam untung, the greatest of the late sultans of magindanao. datu mastura has the best collection of magindanao books and records and owns the most reliable of the royal documents that have been preserved. this copy is one of the best specimens of magindanao literature extant. it is principally genealogy and speaks briefly of the early history of magindanao and the rise of its sultanate, its main purpose being to preserve the record of descent and determine the right of succession to the sultanate. the first page describes the birth of putri tunina and her relation to tabunaway, the ruler of magindanao. the second page describes the coming of sharif kabungsuwan to magindanao, his conversion of mindanao to islam, and his marriage to putri tunina. the third page gives an account of kabungsuwan's marriage to a princess from malabang and his descendants from her. the rest of the manuscript is a detailed account of births and descendants down to the birth of the great grandfather of the present sultan, which must have occurred shortly before the beginning of the nineteenth century. it is the most complete and the most nearly correct copy that exists. it is written at a later period than that of no. v, and covers two later generations. the history and genealogy of the nineteenth century were obtained by personal investigation and inquiry from the oldest and most reliable datus and other persons living. diagrams nos. 3 and 4 show the descent of the rulers of magindanao from kabungsuwan to the present time. the full names and titles of the sultans in the order of their succession are as follows: 1. sharif kabungsuwan 2. sharif maka-alang 3. datu bangkaya 4. datu dimasangkay 5. datu gugu sarikula 6. datu kapitan lawut bwisan 7. sultan dipatwan qudrat (corralat) 8. sultan dundang tidulay 9. sultan barahaman 10. sultan kaharu-d-din jamalu-l-alam kuda 11. sultan mohammed japar sadik manamir, generally known as sahid mupat or wapat 12. sultan dipatwan anwar, also known as wapat batwa 13. sultan mohammed tahiru-d-din malinug 14. sultan pakir mawlana mohammed kayru-d-din kamza, generally known as pakir mawlana or pakih mawlana 15. sultan pakaru-d-din 16. sultan mohammed amiru-l-umara alimu-d-din kibad sahriyal 17. sultan kawasa anwaru-d-din 18. sultan qudrata-l-lah jamalu-l-a'lam untung 19. sultan mohammed makakwa 20. sultan mohammed jalalu-d-din pablu, sometimes called sultan wata 21. sultan mangigin literal translation of manuscript no. vi in the name of god the compassionate and merciful. praise be to god the lord of the universe. i have full satisfaction that god is my witness this book speaks of the origin of the rulers of magindanao. the first known rulers were tabunaway and his brother mamalu. one day they were cutting bamboo to build a fish corral. mamalu cut down all the trees except one small stalk that was left standing alone. tabunaway then called to mamalu, "finish it up, because it omens ill to our fish corral." mamalu therefore cut it and found in it a girl whose little finger was slightly cut by a slip of the bolo. he carried the girl to tabunaway, but tabunaway told him to keep her and adopt her as his child. this girl was named by tabunaway putri tunina. on the other hand, there came out from mecca sharif ali zayna-l-abidin, who proceeded to bawangin (malaysia) and settled at juhur. here he married the daughter of sultan iskandar thul-qarnayn of juhur, whose name was jusul asiqin, and begot sharif kabungsuwan. sharif kabungsuwan came to magindanao to the mouth of the tinundan. there he met tabunaway and accompanied him to the town of magindanao. this is sharif kabungsuwan, who converted to islam all the people of magindanao, slangan, matampay, lusud, katittwan, and simway, and who was followed by all those who accepted islam in the land of magindanao. and it came to pass that tabunaway married sharif kabungsuwan to the girl that was found inside the bamboo stalk, whose name was putri tunina. to them were born three daughters--putri mamur, who married malang-sa-ingud, an older brother of pulwa; putri milagandi, who married pulwa, the datu of bwayan; and putri bay batula, who had no children. later sharif kabungsuwan married angintabu, the daughter of maka-apun, a coast datu of malabang, and begot sharif maka-alang. sharif maka-alang married buli, a bilan woman who was found by parasab in a crow's egg. there were born to them a boy called bangkaya and a girl called maginut. bangkaya married a woman of magindanao and begot dimasangkay. he also married a woman of matampay and begot gugu sarikula. later he married umbun of slangan and begot kapitan lawut bwisan and tagsan and pinwis. dimasangkay married a simway woman and begot butu-na samal, who had no offspring, and uman, a woman. he married also umpas, the sister of sandab, and begot umburung, who was not well known. gugu sarikula married raja putri, a sulug lady, who gave birth to putri mampay. he also married the sister of dasumalung of linilwan and begot gawu. kapitan lawut bwisan married ambang, the daughter of dalamba of slangan, whose son was sultan dipatwan qudrat and whose daughter was gayang. sultan dipatwan qudrat married putri and begot dundang tidulay and arawaldi. dundang tidulay married paramata asiya, a bitalan lady, and begot putri gunung lidang, who was the first bayalabi of magindanao and who had no offspring. his children from a concubine were ila and ija; from angki, the daughter of katib syam and puntyabak of sawakungan, sultan mohammed barahaman and sultan mohammed kaharu-d-din kuda. ila married tawbalay and begot gantar and lumampaw and a daughter sarabanun. ija was married to binulukan and begot maraja layla dangkaya and the following daughters: tumam, pudtad, darisay, nurun, layin, imbu, lilang, abu, and ampay, who had no offspring. sultan barahaman begot from panubawun raja muda bulagas and sultan dipatwan anwar, and gugu jarnik and datu ma-as sumannap, and a daughter anig, and gawu, and datu sakaludan jamalu-d-din, and manjani and awu and tundug, and ngwa and lugung. from lady basing, the daughter of makalindi, and timbang saribu, a lady of sangil, he begot sultan japar sadik manamir and umarmaya tubu-tubu, and the following daughters: maginut, fatima, and atik. sultan kaharu-d-din kuda married lady sinal, the daughter of datu tambinag, and begot balingkul, hajji sayk abdu-r-rakman banswil, and putri kalani kuning. by a concubine he begot maraja layla bahar, paki abdu-l-kahar ampan, and hajji sayk abdu-r-rakim, dinda, dangsabu, ila, talama. raja muda bulagas married tumbayu, a lady of bwayan, and begot baratamay and the daughters nanun, mayay, antanu, and putri. by a concubine he begot parasab, gugu ampwan, and the daughters musturi, bayu, and dabu. sultan dipatwan anwar married a lady of agakan munawal and begot raja bwayan manuk. by a bwayan lady he begot tambayu and kandug; by lady payak, sultan mohammed tahiru-d-din malinug and datu sakaludan gantar; by a concubine, datu lukus ganwi and maraja layla yusup and talinganup, and the daughters daging, dayang, dawung, and dang. gugu jarnik begot nanu and kunan. datu ma-as sumannap begot midtud-sa-ingud bani and asan. nway begot anday. awu married aradi and begot talila and andu. lugung married lubas and begot uranjib and pinaw. datu sakaludan jamalu-d-din married layma, the daughter of sultan kuda, and begot mawlana kudanding sabiru-l-lah and datu sakaludan lagat. tundug married ajipati and begot rannik and ami. by palug he begot dingan. umarmaya tubu-tubu married babak and begot sharif kunyaw and sultan digra alam and pataw. he also married andaw-mada, a tawlan lady and begot bagumba, sarabanun, and bay. by a concubine he begot jukulanu adiwa, bal, buli, and a daughter, sajar. fatima married datu gulay of sulug and begot raja baginda timbang. sultan mohammed japar sadik manamir married putri kalani kuning, the daughter of sultan kuda, and begot sultan pakir mawlana mohammed kayru-d-din kamza, sultan mohammed pakaru-d-din bulagas armansa, and samal, and the daughters bayalabi sari and gindulungan. by a concubine he begot dipatwan palti, jalalu-d-din tambi, maraja layla abdu-l-lah, maraja dinda jamburang, rastam, kahar, mamalum´pung, and the daughters amina, inam, panubawun, atshar, bitun, angki, and labyah. hajji sayk abdu-r-rakman banswil married manjani, the daughter of sultan barahaman, and begot datu sakaludan, a lingkung tidulay, and putri kintay, kaludan, the son of a concubine, japar, undung, kapitan lawut mohammed, and ibrahim, and the following daughters: duni, pindaw, and dasumbay. maraja layla bahar begot badaru-d-din and sakandar, and the daughters dina and bidury. paki hajji abdu-l-kahar ampan begot ismayil and milug. hajji sayk abdu-r-rakim begot namli, amina-l-lah, yasin kamim, mohammed, mawug, akmad, and the daughters latipa, badalya, bulawan dagayug, dindyaw, sitti. dinda married abdul patah, a sulug datu, and begot pangyan ampay. papani married sumuku and begot mahraja layla mindug and a daughter, sinal. ungki married simping and begot iday. ila married datu wata maputi and begot milug and mayug. the children of talama by dumlinaw are jiwana jaya, nasari, palawan, and a daughter, kurays. the children of maharaja layla parasab by pangyan bata, the daughter of gugu, are mayug and tahir. the children of gugu ampwan are makalapun, kanday, tawug, and udin, the last two being daughters. the children of sultan dipatwan malinug are watamama, gulay, tawpan, uku, bay mayung, dingan, and musturi. datu sakaludan a kantar, begot by nanaw, anni and mangki. maraja layla yusup begot iday, ndawmada, munay, bayu, dayang, zaman, muning, tamama, undung, ga-as, and palti. the children of datu lukus ganwi are munay from bayu, and manun and jamalya by a concubine. the children of talinganup are dindu, bungayu, ampay, nanaw, and kunan. dayang begot by tuwyla answay. dang begot by sumapa jamalu-d-din and sabdulla. panubawun begot by bagwa datu tabunaway, tamama, ulu, timbang, gindu, and ampay. the children of atshar from sultan yusup are isra-il, watababay payak, musturi, dadaw, lyaw, and kunan. bitun married mawlana taray and begot agas and kuntay. angki married raja muda kaludan and begot jamalu-d-din, milug, ismayil, ayung, ayu, and fatima. rastam married pinaw and begot dingan and kiram; he also begot indim by a concubine. maraja dinda jamburang married pinaw and begot danding, isra-il, ani, bantilan, ayung, ija, and nanun. jalalu-d-din tambi begot angkaya, panji, gulay, manalantang, lugung, mangki, anday, gayung, latipa, ami, buli, bahar, darisay, and pataw; the last eight being females. dipatwan palti married buli and begot sarabanun. he also begot sahabu-d-din, ampan, ija, kuntay, and ayung by a concubine; the last three are females. pakir mawlana mohammed amiru-d-din kamza begot the following: by dang, raja muda amiru-l-umara mohammed alimu-d-din kibad sahriyal; by dawung the daughter of dipatwan anwar, lidang and paywa; by dawa-dawa, kuda, and lalanu; by bay linaw, burhanu-d-din; by sapar, basing and hajar; by kanul, paku; by sinayan, mohammed sahru-d-din, asim, and tawung; by dalikayin, jamalu-d-din, gindu, amina, and ampay; by talangami, jamalya, ami, zamzam, and ismayil; by muna, sara, yasin, malinug, and abdu-l-lah; by mida, idu, and sad; by untay, isra-il, angkaya, and tambi; by palambi, ndaw; by jalya, dudawa; by anggun, payak; by kalima, badaru-d-din; by janim, maryam; by limbay, isa; by linuyaman, sinal; by milagandi, bilangkul. sultan mohammed pakaru-d-din bulagas armansa married badwi and begot kartaw, atik, anday, and pindaw, the last three being females. he also married a concubine and begot zaman, sumannap, bayna, and nanaw, the last two being females. datu sakaludan lingkung tidulay begot kaka-it. datu sakaludan lagat begot parasab, ampan, manunggul, dading umar, dubwa, ta-ib, nanun, mayay, and gayang. nanun married datu-a-wata maputi and bore tamayug, dawa-dawa, and idayu. mayay married raja bwayan manuk and bore maman, tapudi, kudaw, and ampay. putri married datu maytum bwisan and bore dubwa. tamaying married bungu and begot gangga. he also married mangilay and begot answay and anig. he again married a concubine and begot parasab and tuli. baya-labi sari married mawlana kudanding purang sabilu-l-lah and bore maman, abu bakar, kuntay, mindarakma, and mimya. kibad sahriyal married ninig, the daughter of datu sakaludan gantar, and begot yusup and fatima; by watababay apayak he begot anwar and sul-karnayn; by angki, palti; by kindaw, badaru-d-din and mayug; by jami, nasaru-d-din; by lina, imran; by julya, dingan and ibrahim; by istipanya, abidin. babay basing married watamama sahabu-d-din and bore barahaman, kuda, manamir, fatima zuhra, sari, and mindarakma. púyuwa married raja bwayan malang and bore sajar. burhan married kudi and begot jamalu-d-din and ila. mohammed sahru-d-din married mulak and begot dumalúndung. paku married sultan ajipat and bore kuning. sinal married mundug and bore daru-d-din. jamalya married sayduna and bore mohammed idris and tuli. to gantar, the son of jiwana kunik, she bore samal and ninig. jamalu-d-din married gayang, the daughter datu sakaludan lagat, and begot amina and dawung. zamzam married dindyaw, the child of sayka datu, and bore paramata. buli married mupalal, the son of namli, and bore harmansa. badaru-d-din married putri, the daughter of namli, and begot jalalu-d-din. sari married amil and bore ibrahim and sitti. nasaru-d-din married ayu and begot kamid. kartaw married paramata, the daughter of watamama gulay, and begot putri lidang, ani, jumjuma, and gindulungan; by jayba he begot jaya; by jamila, ndaw and nangka; by uyam, dadawa and naw; by alima, nunay. pindaw married lintang and begot milug. ndima married hajji kari abdu-r-rakman and bore mohammed, taha, banun, and panubawun. completed on the day thursday of the month shaban. god's knowledge is superior. manuscript no. vii the genealogy of bagumbayan introduction the sultanate of bagumbayan occupies the middle ground between the saylud or lower rio grande valley and the saraya or upper rio grande valley. it is located at the head of the delta, and really comprises the upper part of the saylud, and lies mainly along the banks of the southern branch of the rio grande. it extends as far down the banks of the southern rio grande as the upper borders of tamontaka, and as far down as libungan, along the banks of the northern branch of the rio grande. its upper limit is maysawa, a little above the kakar or canal. the present sultan, abu-bakar, lives at bagumbayan proper, which is located on the right bank of the southern rio grande about 3 miles below tambao or the fork. he is still addressed, at times, as the sultan of talakuku, which was the proper address of his father, named after the older name of the capital. the word bagumbayan means "newly built," and has lately been applied to the sultanate on account of the late change of the residence of the sultan. talakuku is the word that appears in all spanish records and histories. kabuntalan is still older and is more used by the moros themselves. the old site of kabuntalan was on the left bank of the main river just above the fork. it has been completely abandoned. nagtangan is the oldest name and the one which appears first in this manuscript. this manuscript is copied from the original, which is in the possession of the sultan himself. it was obtained through the favor of datu balabadan, who is a relative of the sultan and who belongs to the same family or an allied branch of the same. the original is a very old copy and many of the leaves and margins are torn and have fallen into pieces. the handwriting is fair and plain, but the composition and grammar are very poor. the orthographical errors committed in writing moro names in arabic characters are very numerous and greatly change the expression of the words. it is evident that the original author was a poor writer, and did not have the usual practical knowledge in writing in arabic characters that other moro authors had. the dialect is strictly that of magindanao. the titles of the datus are similar to those used in magindanao. two new titles, jukulanu and jiwana, appear often, and in all probability are applied to subdatus of the same rank as gugu, umar maya, maraja layla, etc. literal translation of manuscript no. vii genealogy of kabuntalan in the name of god the compassionate and merciful this book speaks of the ancestors of the datus of nagtangan. daman asked for a datu from bwayan and got dikaya. dikaya married a nagtangan wife and begot duka. duka married lantyan, a malitigaw woman, and begot myadung. he also married a woman called ambun and begot babak and naw and suman. babak married umar maya, tubu-tubu, and bore saripada kunyaw, sultan digra alam, and pataw. umar maya married also andawmada, a tawlan lady, and begot bagamba, sarabanun, and bay. by a concubine he begot jukulanu diwa and bal, and the daughters buli and gaw and bahar. saripada kunyaw married anik and begot sultan mohammed alimu-d-din, who had no offspring, mawlana mundug, and datu sakaludan dudin. he also married andawmada, an ipuktn lady, and begot baya-wata. by a concubine he begot jiwana jambang, and the following daughters: kumkuma, ayag, payak, talilah, and minding. sultan digra alam married nya, a magindanao woman, and begot raja muda mangindra and mohammed; by bay he begot baya-labi; by a talayan woman he begot baya-wata lilang. bagamba married raja bwayan and bore sultan darimbang. sarabanun begot kamad, ubuk, and dumpiras. jukulanu diwa begot marajal, baya nayug, jukulanu kunuk, jukulanu badal, and undung, and the daughters atik, ilug, nawila. bal begot ginda, abas, duwi, and dangkay, and a daughter, buli. buli married mupat salam and bore banun. she also married aspa and bore jiwana kunik. mawlana mundug begot wata-mama kamad and ngyan. by a concubine he begot dula, dastara, jaynal, and alam, and the daughters dadaw and sambasing. by lamidas he begot kadija; by a concubine, daldal; by saban, aminu-l-lah. datu sakaludan dudin married amina, the daughter of jukulanu diwa, and begot danding, madaga, kudanding, patima, gindulungan, and anat. by a concubine he begot ganwi and kunan. baya-wata married timbang sulug and begot wata-mama damda. jiwana jimbang begot asab and pata. raja muda mangindra married mayung, a binilwan lady, and begot anig, umun, daywa, and dawada; and the sons, sultan mohammed-sa-barahaman, kunday, pataw, janipan, and dindyaw. by a concubine he begot lubaba; by baya-labi, ingkung. baya-wata married aman and begot inuk, uku, and anti, and the daughter wata-babay didu. gugu kiram begot anti, nanun, lintang, didu, ngulu, and banun. maraja layla dikaya begot maraja layla kandug, kunan, maraja layla amad, and papung. sultan mohammed darimbang begot raja bwayan paki, damda, and pidtaylan. by a concubine he begot kakayt. kamad married anig and begot bulawan, inuk, and dagayug. by a concubine he begot mama-sa-ilud, and kuntay. ubuk begot daga, mama-santi, bulug, and tawp. dupiras begot lyaw and dabu by a concubine. jukulanu kunuk married dawada, the daughter of raja muda mangindra, and begot tamay and diyug. jukulanu badal married mayakay and begot panggu. he also married ginu, the daughter of wata-mama kamad, and begot ungji, ulanulan, indalan, udamag, kadidung, aslan, aminalla, duwag, nyugaw, and tiban. udung married ninaw and begot mamag, tuli, lilang, lastam, aning, and alungan. by baybay he begot namar; by lumba, indig and dandung. nawila married lugung, the son of jalaludin tambi, and bore putri and kirig. ginda begot malaga. abas married ngyan, the daughter of mawlana mundug, and begot atshar and pinayu; and nanaw by a concubine. wata-mama kamad begot ginu. dulay begot bandun, jawala, buli, and dyaw. by payaka he begot kubung and paygwan. dastara's children lived in kuran. alam married gindulungan and begot malatunul. gindulungan married mawg, the son of the sultan of tuba, and bore qudrat. ngyan married abas and begot atshar and pinayu. dadaw married badang and begot jambrang, a twan (sir) of lawgan. kadija married atun, datu of burungan; her children lived at burungan. daldal married kayag and begot saripa and nyaw. talilah begot sabu-din. sabu-din begot abu bakar, mindung, kawan, itug, and pimbar. nanaw married tamama and begot kalumpunit. datu sakaludan married lady tidung and begot tima and randu. he also married yungayu and begot andam and basing. barayim married anu, the daughter of maraga, and begot rapruk. raja bwayan mohammed alimu-din married ani, a lady of magindanao, the grandmother of mupat idayat, and begot kabayan. by mayay, a lady of kabalukan, he begot the sultan of magindanao; by a concubine, gugu jamburang; by salaya, gugu panasang; by dadayu, nugal and gansing; by pandarágan, gaga; by sitti, itug; by kasimna, atung and panunggu; by takdung, basing; by inam, atabwan; by inding, apun; by amil, nangalung. alimu-din, the grandson of baya-labi sari, married maraga, the daughter of ginda, and begot tuka and dubwang. kudanding married kindang and begot ayung. by tima, a lady of tidung, he begot putri; by ija, limulang and sina; by nayung, gandang and kutay; by nawg, babayasi. datu tamay and diyug were cousins. kibad was their second cousin. tagi was a brother, the son of maryam. qudrat was another cousin. anatan, datu of kabuntalan, was their uncle. madaga married sultan mohammed-sa-barahaman and bore mayug and sultan iskandar manamir, which makes three datus of kabuntalan. anatan, datu of kabuntalan, married jawya and begot didu, untung, and padidu. by malali, he begot pawag and kirig and dyaw and parug; by sitti, umbag; by madidu, anaw and baralaga. wata-mama balindung adamunda married ani and begot asim, iday, kalug, kuntay, nanun, and tayting. by a woman of kadingilan he begot bantilan. asab begot putri. pata married jiwana aryung and begot kibad, kanapya, sarapudin, and ilm. daywa married datu palug of binirwan and bore kunik, banun, and iyaw. dindyaw married maraja layla kandug and bore talawung and dastara. mawlana mawg married iday, the daughter of balindung, and begot maning, ampal, lilang, anti, bagwa datu, and tapudi. kawan married timbay and begot paydu, dandayung, and iday. panggu married talung, the daughter of maraja layla kandug, and begot ulanan, tubu-tubu, and a daughter, tya. he also married kubra and begot ula. tamay married antam and begot limulang and makabwat. diyug married tuli, the daughter of undung, and begot paki, dada, tingaw pulwa, myayu, malug, and tinabun. mamag married didung and begot babay, mama, diruyudun, and manángka. anti, the son of gugu kiram, begot muyuka, pinagunay, kunaw, pindaw, and bungayu. nglu married tababay and begot nawila and amil. lintang begot bantugun. brayim married anu and begot ----. raja married dabu and begot kirig and pakamaman. ingkung married dubung and begot arimaw, kalug, saribu, padaw, dukin, and a daughter, mayla. by a concubine he begot pinu, bilalang, and talawd. maraja layla akad married miyayu and begot inal, idu, and atshar. sultan mohammed iskandar manamir married sarip, the daughter of the sultan of magindanao, and begot iskandar sulkarnayn and sahabu-d-din. by gayang he begot idris; by kati, mamunu-r-rashid, kindang, and puyuwa; by apsa, kadija. the grandfather of baya-labi sarip, by her father, was raja bwayan. her grandfather, by her mother, was sultan diruyudun of bagu ingud. tagi married manjanay and begot lintang and paramata. by putri, the daughter of kudanding, he begot pindaw; by apsa, an ilanun, dubuwa, tuku, pakir, and pandita; by bayid, mama-sa-ingud; by dabu, bwisan; also kúmkuma. idris married minda, the grandmother of umar-maya anti, and begot sindad. by another woman he begot kunik. sultan mohammed-sa-barahaman begot also kamsa. kamsa begot itaw, jimbah, antil, limpul, and mandi. dipatwan minug married madaga and begot tandwal, pipikan, pamupun, diluyudun, and talambungan. kunik married pinduk and begot ninig, marajal, and kumipang. by kumala he begot bunti and muyuk; by paydu, atik. namal married tima and begot tantung, sawad, and mohammed. bulawan married rajalam and begot bula, anggris, and pindug. raja muda asim begot pintay and ubab. kalug begot talulad and mayay, and katampara and talama, the last two from kurma. kintay married balug and begot dalmatan, muntya, talib, and alungan. ganwi married itug and begot gayug. he also married basing and begot anday, atshar, luping, and utung. qudrat married idayu, the daughter of the sultan of balilah, and begot bwisan, dundang, and nuni. by lilang he begot asibi; by tapaya migayad; and by agak, mohammed. rastam married dawag and begot tawp, ampan, igay, and payluyan. he also married uman and begot saligan, gambil, and timbaw. kibad married ninig and begot pinduma and dulan. bantugan married lagay and begot ayug and gambis. he married also tubu and begot dawa, dulan, and balalagay. by abu, he begot bwanda. andam married pudin and bangkas, mayung, mama-sa-ingud, gandi, and gimbang. aminula married basing and begot raginut, angjum, and anu. pawag married tapudi and begot talila, maytum, mantya, and sandag. kirig married baliwan and begot nanwi. sapula begot mindal, awa, ijang, ruging, and nyaw. datu sa-dalikan married dagayug and begot payak, who lived in the care of a manobo of dalikan--not the one who was intrusted to the care of sultan mohammed iskandar manamir of kabuntalan by a tiruray of dalikan. this latter woman was the daughter of the former and was not an inheritance for the nagtanganun because the datu did not furnish her with a dowry. angki married puwi and begot dangus and tapudi, the cousin of the sultan's mother. sultan diluyudun of bagu ingud married jumjuma, the daughter of dipatwan marajanun, and begot danding and mayung. by kabayan, a lady of kabalukan, he begot apan, bwat, and timbukung; by adung, panalaw; by paku, gasing and dgaw; by raja, muntya; by ampas, kambang; by angkung, salamat and gindu; by bitu, kapya, timu, and naypitan and pinamili; by idag, uyag, makalay, singag; by kalimah, umbul; by ibad, amad; by batata, dalding, the daughter of gandum, maguman; by anuk, kulaga; by ingi, paytakay, bungalus pimpingan, and idag. the sultan of magindanao married mayung, the daughter of the sultan of bagu ingud, sarip, and begot bangun, the sultan raja muda bayaw, bagu, and gidu. by atik, a lady of makatudugan, he begot laga and tandu; by wayda, talumpa and taganuk; by matundun, malatunul, sarabanun, and bisinti; by awig, gubal; by kudaw, isad; by myayug, atik, blaw, ngyan; by malayu, makaw; by kumbay, byalung. in the name of god the compassionate and merciful. the first datu of bwayan was budtul, who married a woman from magindanao and begot malang-sa-ingud and pulwa. putri mamur was married first to malang-sa-ingud, but after his death she married pulwa. pulwa married also budang of tijaman, and begot dikaya. the history of bagumbayan. the two greatest powers that figured prominently in the rio grande valley are the sultan of magindanao and the raja of bwayan. these rulers have at all times been considered as greater in power and higher in rank than any other ruler in the valley. in the latter part of the eighteenth century and during the main part of the nineteenth century the sultan of kabuntalan also figured prominently and held a very intimate relation and a close position to both of the other sultans, which position he still holds at the present time. it appears that the first ruler of kabuntalan was dikaya, the son of a raja bwayan, who simply held the honorary title of datu. his successor had no male heir, and one of his daughters, babak, married umar maya tubu-tubu of magindanao, who became ruler of kabuntalan and whose son was the first mentioned sultan there. this makes the line of descent of kabuntalan related by babak to the line of bwayan and by umar maya to that of magindanao. this relation to both magindanao and bwayan and the intermediate position kabuntalan holds to both saylud and saraya have been very prominent factors in the history-making events of the valley, and have successively been taken advantage of by both spanish and american authorities managing the affairs of the country. diagram no. 5 gives in a very explicit and clear manner the names of the rulers of kabuntalan or bagumbayan, the order of their descent and succession, and the relation they hold to each other. their names in the order of precedence are as follows: 1. datu dikaya 2. datu duka 3. datu umar maya 4. sultan digra alam 5. sultan mohammed alimu-d-din 6. sultan sa-barahaman 7. sultan mohammed iskandar manamir 8. sultan iskandar sul-karnayn 9. sultan idris 10. sultan abu bakar the diagram shows also the principal relations of bagumbayan to bwayan and to magindanao. very little is known about the early history of kabuntalan. datu kali ibrahim, who is the chief judge of bagumbayan, told the following story: soon after the arrival of dikaya in kabuntalan the chief people of the village took their new datu in a boat on a little excursion. when they had gone some distance from the village they engaged in a sham fight and one party attacked the datu. this affair was prearranged and planned to test the courage and power of their datu. they made their attack with krises and bamboo lances. dikaya was frightened and ran away. the people lost respect for him and expelled him from the village. some time later he won their friendship by his good behavior and was reinstated as datu of kabuntalan. the statement on page 47 that dikaya was the son of pulwa was taken from the bwayan tarsila and is added on account of the relation it bears to the subject. the part of the tarsila of bwayan which bears on this subject states that dikaya was the son of pulwa by a concubine, and that dikaya begot duka, who married rantyan, a malitigaw lady whose mother was agub. the children of duka and rantyan were bulus, manalidtu, puwi, and miyandung. as pulwa must have lived about the year 1550, and as digra alam must have ruled about the year 1770, the statement that duka married ambun and begot babak, the mother of digra alam, can not be accepted as true. some links in the list are evidently missing, but the fact is that the right to rule kabuntalan belonged to the descendants of duka, and was principally derived from bwayan. the first ruler of kabuntalan addressed as sultan was digra alam, the son of umar maya and babak. diagram no. 5 shows plainly that digra alam must have ruled about the same time as sultan pakir mawlana kanza of mindanao, or his brother, pakaru-d-din, that is about the year a. d. 1770. in a treaty between the spanish government and the sultan of kabuntalan in the year 1857 the sultan is addressed as sultan of tambao. he must be either sultan iskandar sul-karnayn or sultan idris, probably the latter. about midway between tambao and libungan on the left bank of the river is a small monument, possibly a tomb, erected in memory of those who died during the fight between the spaniards and sultan idris. in 1861 tambao and taviran or tapidan were occupied by the spaniards. in 1884 sultan idris submitted unconditionally to the spanish authorities and received their protection against datu utu. datu ayunan of taviran, datu balabadan's brother, aided the spanish authorities in the war against datu utu and was one of the most prominent datus of talakuku and magindanao. manuscript no. viii the ancestors of the datus of mindanao introduction this manuscript is a copy of the original in the possession of datu mastura. it was written by the same original author as manuscript no. ii and belongs to the same class and style of composition. it consists of nineteen paragraphs that give the names of the first rulers or datus of nineteen datuships of mindanao. a few malay words are used at the beginning of each paragraph. each paragraph begins as if it were written as a separate document or statement, distinct from all the rest, and in the same manner as their letters and books generally begin. the arabic words surat, riwayat, kissa, hadis, asal, meaning book, narrative, story, discourse, origin, respectively, are all used to signify book or history. the word tsharetra is malay and means a story. sarsila or salsila and tarsila mean genealogy or history and are used in the same sense. literal translation of manuscript no. viii in the name of god the compassionate and merciful 1. this book tells about the ruler of bwayan. the first ruler of bwayan was pulwa, the first raja bwayan. he begot raja sirungan, the second raja bwayan. pulwa married the daughter of sarip kabungsuwan. 2. this is a statement about the ruler of the country of mandanawi, the land of peace. the first datu of magindanao was mangalang or maka-alang, the son of sarip kabungsuwan, from angintabu. maka-alang was the second sarip; sarip kabungsuwan was the first. 3. this is the genealogy of the ruler of the country (or town) of ilanun. the first datu of malabang was gantar, the father of maka-apun and angintabu. 4. this story tells about the ruler of bakayawan. the first datus of bakayawan were mirugung and dimalawang. 5. this is the history of the ruler of bayabaw. the first datu of bayabaw was kalangit. his son was pundama, who married umpas. the end. 6. this is the history of the ruler of balabagan. the first datu of balabagan was dungkulang. his son rimba was sultan of balabagan. the end. 7. this is the history of the ruler of pidatan. the first datu of pidatan was dyam, sultan of pidatan. he begot punduma. punduma begot tawgung. 8. the first datu of lumbayanági was sultan gulambay. he begot ranu. 9. the first datu of dupilas was dindu, who was called datu sa-palaw. he begot dimalawang. 10. the first datu of sulug was sarip payang, who begot raja hasan, sultan of sulug. 11. the first datu of sangir was makalindi. makalindi married timbang saribu and begot manamil, sultan of sangir. 12. the first datu of malalis was ampwan, sultan of malalis. 13. the first datu of dulangan was alip, the son of abu, sultan of dulamgan. 14. the first datu of makadar was sultan limba, who also is a son of abu. 15. the first datu of didagun was abad. abad begot dumalundung, who was sultan of didagun. 16. the first datu of barira was dumak. dumak begot antagu, who was sultan of barira. 17. the first datu of sikun was amat. amat begot salumbay, datu of islnun. 18. the first datu of kadingilan was kapusan, the brother of salumbay, son of amat. 19. the first datu of magulalngun was balbal, who married maradi, the daughter of the sultan of tatarikun, and begot burwa. burwa became sultan of tatarikun. here ends the genealogy of all the countries or towns. the history of magindanao before the first mass was celebrated on the northern shore of mindanao mosques had been built on the fertile banks of the pulangi, and before legaspi landed on cebu kabungsuwan had been declared and acknowledged datu of magindanao. the mohammedan conqueror of mindanao was neither an admiral of a fleet nor a leader of an army of regular troops. he had no nation back of him to reënforce his battalions nor a royal treasury to support his enterprise. his expedition was not prompted by mere chivalry or the gallant adventures of discovery. he was not looking for a new route to rich lands nor searching for spices and gold dust. the emigrant sought a new land to live in, and trusted his fortune and success to the valor of his crew and the influence of his witchcraft. having a fair admixture of malay blood in him and sufficient arabian energy and enthusiasm to push on, he came and conquered and soon found himself at home in mindanao as well as at juhur. there was no racial prejudice to contend against and the language of the new land was akin to his own. but true to his religion, as he was true to his ancestry, his faith suffered no defeat. no submission was accepted without conversion, and no friendship was cultivated with the unfaithful. he married in the land of his conquest, and the ties of faith were soon strengthened by the ties of blood and kinship; and as the first generation passed and the second generation followed, the conqueror and the conquered became one in blood and sympathy, one in faith, and one in purpose. a new dynasty which stood for islam, for progress, and for civilization arose on the ruins of barbarism and heathenism. savage and fierce as the moros look, they are greatly superior to the surrounding pagans who inhabit the hills and the interior of mindanao. once their equals and kinsmen, they have vastly surpassed them now and are preëminently above them. with mohammedanism came art and knowledge, and communication with the outside world was established. for four centuries two different agencies of civilization have been at work in the philippine islands. one started in the north and worked its way south, continually progressing and constantly growing in power and improving in character. the other began in the south and extended north, but it soon reached a definite limit, and like a tree stunted in its growth it reverted to its wild nature and grew thorny and fruitless. the first graft of the tree of magindanao was not aided by later irrigation. the first wave of immigration was not reënforced, and with an ebb tide it lost most of its size and force. the moros of mindanao figured very prominently in the history of the philippines. they were never united under one flag, but they formed different sultanates, some of which attained considerable power and fame. in the fullness of his glory, the sultan of magindanao ruled over the whole southern coast of mindanao from point tugubum, east of mati, to zamboanga, and beyond this latter point to the outskirts of dapitan. all the pagan tribes living around the gulf of davao and in the sarangani country, and all the subanos west of tukurun and dapitan submitted to his power and paid him tribute. in the upper rio grande valley the power of the rajas of bwayan was felt and respected as far as the watershed of the cagayan valley on the north and the inaccessible slopes of mount apo on the east. the ranao moros controlled the whole country and the seacoast west of cagayan de misamis and north of the illana bay. the large majority of the moro sultanates are, however, small, and have never been fully numbered or described. they generally represent small divisions of territory and subdivisions of tribes, each under one chief who calls himself sultan or datu. nevertheless, tribal relations and language group these petty divisions into two large distinct groups, the magindanao and the iranun. the magindanao group includes the majority of the tribes. the iranun group is restricted to the tribes living along the eastern coast of the bay of illana from the point of polloc to the neighborhood of tukurun, and the whole ranao region lying between that line and the bay of iligan. the magindanao group is the greater of the two in number, in the extent of its territory, and in fame. indeed, all the moros of mindanao, except the iranun, were at one time under one influence and were brought under the sole control of the sultan of magindanao. the samal moros, who are variously classified by different writers and who are often mentioned as one of the main divisions of the moros of mindanao, are really foreign to mindanao and belong to a distinct and separate group. until recently they had never been independent, but had lived under the protection of various datus, and always served the datu for the protection he afforded them, or paid him tribute. they were sea rovers and had no claim on territory anywhere. lately they have settled down on the island of basilan, the sulu archipelago, and around the zamboanga peninsula. the samals were the latest of the malay people to arrive in the philippine islands. in fact, they are the only malay people of whom we have positive historical statement of emigration from the malay peninsula to sulu and mindanao, and were in all probability mohammedans prior to their arrival in the philippine islands. with the magindanao and iranun peoples it is different. they were in the land and belonged to the native element of the country long before their conversion to islam. islam was successfully introduced and firmly established in mindanao by one man. this same man founded the sultanate of magindanao and reformed the whole system of government among his converts. his full name was sharif mohammed kabungsuwan, generally known as sharif kabungsuwan. kabungsuwan was without doubt the greatest mohammedan adventurer who trod the soil of the island. but both the traditions of magindanao and its written records state that he was preceded by two pioneers, the first of whom was sharif awliya. awliya was universally regarded as a relative and a predecessor of kabungsuwan. his history is wrapped in myths. he is said to have come to mindanao in the air to search for paradise, or that part of it which remained in mindanao, and, while he was looking for it on the hill of tantawan (cotabato), to have found a houri who was sent to him from heaven. he married this houri and she bore a daughter called paramisuli. later the sharif returned to the west, but his wife and daughter remained in magindanao. the second arrival in magindanao was sharif maraja, who married paramisuli and was thought to have begotten tabunaway and mamalu, who were the chiefs of magindanao when kabungsuwan arrived in the land. sharif maraja is said to have had a brother called sharif hasan, who accompanied him as far as basilan, but who stopped there and founded the sultanate of sulu. whether bidayan, the son of sharif hasan, who is mentioned in the fourth tarsila, should be bidin, the abbreviated form of zainul-abidin, who was the first sultan of sulu, it is not easy to say. no copy of the sulu genealogy has been obtained as yet, and no authoritative statement can be made. but it is universally believed that the first sultan of sulu came from basilan, and that the ancestors of the sultans of bruney, sulu, and magindanao were brothers. sharif kabungsuwan was the son of sharif ali zainul abidin, a descendant of the prophet mohammed who emigrated from hadramut, southern arabia, to juhur, malay peninsula. the sultan of juhur, was evidently a mohammedan then, and was called iskandar thul-karnayn, the arabic appellation of alexander the great. the word "sharif" is arabic and means "noble." it is a title which is universally given to the descendants of the prophet mohammed. the full title is "sayid sharif," the "master and noble." the arabians generally use the first word, sayid, alone, but the moros have adopted the second. being highly respected on account of his ancestry, zainul-abidin was given the hand of the sultan's daughter in marriage. her name was jusul asiqin, a corrupted form of the arabic name "jawzul-'ashiqin." it is generally believed that she bore three children, the youngest of whom was called kabungsuwan. the word "kabungsuwan" is malay and means "the youngest." the names of the two older brothers of kabungsuwan were variously given. they were not mentioned in the tarsila and have been obtained from mere traditions. one authority gave them as ahmad and alawi, the other as mohammed and ahmad. both authorities agreed on the fact that the oldest founded the sultanate of bruney, and the second the sultanate of sulu. kabungsuwan probably knew some arabic, but he necessarily spoke and used the malay language, his mother's tongue. the incidents connected with his departure from juhur are of considerable historical interest. no dates have been obtained relative to this departure. the early moros never dated their events or documents. their narratives were very brief and crude. when they dated their events or wars they used a cycle of eight years, and designated its years by the letters a, h, j, z, d', b, w, d''. whenever one cycle ended they began another without any relation or reference to the corresponding mohammedan year. the earliest date that has been obtained which has immediate bearing on mindanao history is that bwisan, the father of the corralat of combés, was living in 1597; the next date was that of corralat's defeat by general corcuera in 1636. bwisan had two older brothers, and he was probably preceded in the sultanate by both of them. his father, bangkaya, was the son of makaalang, the son of kabungsuwan. it will therefore be within safe limits to say that kabungsuwan's departure from juhur or his arrival in mindanao occurred about the end of the fifteenth or the beginning of the sixteenth century. captain forest, who visited magindanao in 1775, placed that event roughly at a. d. 1475, which is near enough to assume as correct. tarsila no. ii states that there departed with sharif kabungsuwan from juhur many people who were dispersed by the storm and ultimately found their way to different ports. the places to which they went were balimbang, bangjar, kuran, tampasuk, bruney, sandakan, sulu, malabang, tubuk, and mindanao. there is no doubt that this statement refers to an emigration from juhur east as far as mindanao, and that with this emigration came kabungsuwan. the samal people generally believe that they came from juhur and its neighborhood. the traditions of magindanao distinctly state that the people who came with kabungsuwan were samals. the samals or bajaws are the sea nomads of the malay archipelago and their emigrations are frequent. the samals of the sulu archipelago are ruled by the sulu datus and are generally very submissive. they are allowed to live on sulu soil, but they have never made themselves independent anywhere. indeed, all the evidence that can be obtained seems to point distinctly to the fact that they are of late arrival and do not belong to the older peoples of the philippine islands. the early magindanao records give the impression that the arrival of kabungsuwan and the conversion of the people of magindanao to islam were accomplished peaceably. the word samal is never mentioned and the samals are always considered as aliens in every respect. the samals seem never to have settled in magindanao itself, but they did settle for some time on the island of bongo or bungud, that lies opposite the mouth of the pulangi, and at batwan and banago, near malabang. from these places they moved later to sibugay and sarangani and the gulf of davao. combés called the samals lutaw and said that they were in the employ of corralat, and manned some of his boats, fighting and carrying on piracy side by side with the people of magindanao and with the iranun. summing up the preceding evidence, we can unhesitatingly say that the samals came to magindanao with kabungsuwan, but that they did not settle on the soil of magindanao, nor did they intermarry sufficiently to assimilate with the magindanao people. the character of the conquest kabungsuwan achieved and the bearing it has on the admixture of races in mindanao is therefore of special interest. when kabungsuwan arrived at the mouth of the pulangi there were on the neighboring soil of magindanao the following settlements: slangan, magindanao proper, lusud, matampay, tagiman, and katitwan. the first and the last were probably the greatest and the strongest of all, for they were the first to meet kabungsuwan and interrupted his advance at tinundan. after some fighting they were evidently defeated and retreated up the river. the people of magindanao, under the leadership of the brothers tabunaway and mamalu, came next, but their attitude was not hostile. for some reason they secured an alliance or agreement with kabungsuwan and invited him to magindanao. they submitted to a form of mohammedan baptism and to circumcision, and towed kabungsuwan's boat from that place up to magindanao. hence the meaning of the word tinundan, the place of towing. the ceremony for circumcision occurred at katuri, the little settlement on the river just opposite cotabato; the baptism or washing occurred at paygwan at the mouth of the river. the word katuri means circumcision. the dumatus urge that tabunaway and mamalu had been mohammedans previous to that incident and that they had some intimate relation to kabungsuwan. this is possible, but it is very difficult to understand how such a submission could have been enforced or obtained had kabungsuwan been a mere relative and guest whom they had never seen before. the people of magindanao proper were, even in the best days of the sultanate, far outnumbered by the people of slangan. yet, soon after his arrival in magindanao, kabungsuwan went on conquering and converting to islam all the surrounding tribes and chiefs, and succeeded. this seems impossible of achievement unless kabungsuwan had some force with him which commanded the fear and respect of the natives, and which, with the aid of magindanao, was able to carry his arms to victory over all the neighboring native chiefs and tribes of the land. this force was in all probability made up of the samals who accompanied him from juhur and who remained in his service and in the neighboring seas for a certain period of time. but having married in mindanao, the succession to kabungsuwan's sultanate naturally reverted to the native element, and the samals were gradually alienated and their sympathy with their master grew steadily weaker. not being agricultural in their habits and preferring the sea, they gradually withdrew from magindanao. the natives proved superior to the samals and, though converted to islam, they preserved, to a great extent, their own identity and their language. knowing how insignificant the former chiefs and their settlements had been, it is not difficult for us to conceive how kabungsuwan, with a small foreign force but with superior talent and with superior arms, could so easily accomplish the conquest of magindanao. it is commonly believed that the natives who fought kabungsuwan had no swords and depended chiefly on their wooden arrows as implements of war, and that the mohammedans who attacked the natives fought with swords and gained an easy victory. possibly they used gunpowder, too. the inhabitants of slangan, magindanao, katitwan, and those of all the other settlements of the valley were pagans and were very similar to the present tirurays in language and worship. those who adopted the new religion remained in the rich lowlands of the valley, but those who refused fled to the mountains and have stayed away ever since. those who wavered in accepting the new terms of submission and who were later suffered to stay in the neighboring hills were called tiruray. those who refused to submit, fled to more distant places, and kept up their enmity and opposition were called manobos. the pagans who are thus spoken of as related to the moros of mindanao in origin, besides the above, are the bilans, the tagabilis, and the subanos. every settlement of these former pagan tribes had its chief. the chief was called timway. tabunaway was the last timway of magindanao. manumbali was the last timway of slangan. the tirurays and the manobos still call their chief timway. the ruler of the mohammedan dynasty assumed the title of datu. the noun datu means king or ruler; the verb datu means to rule. kabungsuwan retained the title sharif. his son maka-alang also is always referred to as sharif. later the term datu prevailed, and the first datu who is mentioned in the tarsila as sultan was sultan qudrat, whom combés called corralat. soon after kabungsuwan had established his power in magindanao he received the submission of many chiefs, all of whom he converted to islam. later he advanced up the valley to bwayan and along the coast to malabang. some believe that he went to the ranao country, but it is difficult to support all the statements made. his descendants and his converts carried on the war and the conversion, so that before the spaniards reached their country their conquest and conversion had reached the present limits. the story of putri tunina and her marriage to kabungsuwan is universally known to the moros of mindanao. the custom of burying the dead next to the house, as practiced by tabunaway, is still common everywhere, and trees are often planted around the tomb. by sarabanun, the sister of tabunaway, kabungsuwan begot no children. by putri tunina he begot three daughters, one of whom, putri mamur, married the first moslem datu of bwayan, malang-sa-ingud. at malabang kabungsuwan married angintabu, the daughter of the chief of that place, and begot sharif maka-alang, who succeeded him. the people of magindanao who aided kabungsuwan in his wars secured from him certain privileges and favors over their neighbors. these privileges are still claimed by the dumatus, the present descendants of tabunaway. they have not paid tribute to the datus and have often intermarried with the datu class. it was different with the people of slangan. the descendants of manumbali and his subjects all became subjects and servants to the datus. their descendants are, however, still known and live in lugaylugay, about 1 mile below cotabato, and on the same side of the pulangi. little is known about sharif maka-alang. he in all probability ruled in magindanao, not in malabang. his wife was a bilan woman related to parasab, a bilan chief. bangkaya succeeded maka-alang and married three wives, daughters of the principal chiefs of slangan, magindanao, and matampay, by each one of whom he begot a son. his sons were dimasangkay, gugu sarikula, and kapitan lawut bwisan, all of whom become datus and succeeded to the rule of magindanao in order. sarikula married a sulu princess called raja putri, who was supposed to be the noblest lady of her day in magindanao and who probably was the daughter of the sultan of sulu. the word putri is equivalent to "princess," and raja putri means "royal princess." kapitan means "holder" or "leader." lawut is a malay word meaning "sea." bwis means "tax." kapitan lawut bwisan distinguished himself more than his predecessors and was the most powerful enemy spain encountered in the south in her first effort to reduce the moro land. in 1597, in company with silungan, the raja of bwayan, he checked the invasion of marquis rodriguez and defeated him at tampakan. bwisan was succeeded by his son, sultan dipatwan qudrat, the corralat of combés. the word dipatwan is malay in origin and means "master" or "sir." the word qudrat is arabic and means "power." the letters d and r and r and l are interchangeable in moro, and the word qudrat is commonly pronounced kudlat or kurlat; hence the corrupted form "corralat." sultan qudrat overshadowed his father, bwisan, and ruled with a strong hand. he was probably the strongest and greatest mindanao sultan that ever lived. he fought the spaniards bitterly and held their sovereignty in check for many years. his pirates terrorized luzon and the visayas and controlled the southern seas for a long time. in 1636 general corcuera led an expedition against him and after considerable difficulty reduced his fort and defeated his forces. qudrat appears to have had a large number of firearms, and his fort was very strongly fortified. the spaniards captured 8 bronze cannons, 27 lantaka or culverins, and 100 muskets. in 1645 his relations with spain had undergone a distinct change. he had become more powerful, but he was desirous of peace and made a treaty with the spanish government. this treaty was in the nature of an alliance for mutual aid and protection. it secured better commercial facilities and gave the jesuits the privilege of building a church in the sultan's capital. thirteen years later hostilities were renewed and another campaign was directed against simway. this time qudrat succeeded in blocking the river at different places and successfully checked the invasion. qudrat was followed by his son, dundang tidulay, of whom very little is known. sultan dundang tidulay begot sultan mohammed sa-barahaman and sultan mohammed kaharu-d-din kuda. barahaman ruled peacefully and begot several children, two of whom, japar sadik manamir and dipatwan anwar, became sultans. after the death of sultan barahaman his son manamir was declared sultan. as manamir was very young, his succession was considered illegal and an act of enmity directed against his uncle, kuda. kuda therefore "usurped the government and went to simway, carrying with him the effects of the deceased sultan." civil war ensued and the peace of the state was greatly disturbed. this war must have lasted more than thirty years, and its story is variously related by the moros. the tarsila do not mention it at all. the best description was given by captain forest, who learned its details from the mouth of pakir mawlana, the chief person who conducted the campaign and terminated the struggle. kuda invited a party of sulus living in magindanao to simway to support him against his nephew. the sulus came, but finding him with only a small force, they treacherously murdered him and plundered his camp and possessed themselves of many pieces of heavy cannon, which kuda had transported from magindanao to simway. "the sulus returned home with their booty, and manamir's party got the ascendency." but the sulus, conscious of their iniquity and fearful of resentment when peace should be restored, fomented trouble between manamir and his brother anwar, and supported the latter. the state was again divided against itself, and the second struggle proved worse than the first. skirmishes were kept up and nightly attacks and assassinations were continued until both sides were very much weakened. their enmity grew bitter and malinug, the son of anwar, killed his uncle manamir. manamir was the rightful sultan, and on account of his assassination he has ever since been called sahid mupat, which means "died a martyr." pakir mawlana and pakaru-d-din, the sons of sahid mupat, were obliged to leave magindanao, and retired to tamontaka. "the country then suffered much. the great palace at the town was first plundered and then burned. in the conflagration many of the houses of magindanao were destroyed, as was also a great part of the town of slangan. the groves of cocoanut trees were also mostly destroyed, as being convenient and at hand to make palisades for temporary forts." in the meantime sultan anwar died at batwa and has ever since been referred to as mupat batwa, which means "died in batwa." malinug assumed the sultanate after his father's death and kept up the fight. "after a tedious, desultory war, malinug fled up the pulangi to bwayan. pakir mawlana then got possession of all the lands about magindanao, and peace was made soon after. malinug died a natural death, and some time later his two sons visited pakir mawlana." pakir mawlana was a man of low stature, smiling countenance, and communicative disposition. he acquired a great reputation for wisdom and bravery during the civil war, which he brought to a happy conclusion. he spoke malay and wrote the best tarsila of magindanao. magindanao flourished in his day and regained its former glory and prosperity. his pirates invaded the celebes and had several encounters with dutch and english vessels, often with success. his relations with spain were friendly, but spain had very little influence outside of the zamboanga colony. the greater part of magindanao was in his days built on the point and the adjacent narrow strip of land which lies at the junction of the matampay and the pulangi and between them. a longitudinal raised street began at the point and extended for half a mile to a canal which was cut from river to river. more than 150 houses were situated on both sides of this street. the other part of the town of magindanao did not exceed 20 houses. the town of slangan was really continuous with magindanao and extended for about half a mile down the river, forming one continuous street. slangan was the larger town and had over 200 houses. both towns had large numbers of mechanics, vessel builders, and merchants. many chinese carpenters, arrack distillers, and millers lived in both towns, but chiefly in slangan. gardens and rice fields surrounded the town. the chief datus at that time had forts and kept small bodies of troops as bodyguards and artillery corps to take care of the muskets and guns. kibad sahriyal, son of the sultan, had the best and strongest fort at that time. this fort was called kuta intang (diamond fort) and was located at the extreme point of the land and commanded the river and the town. the fort had five pieces of cannon, 6 and 9 pounders, and a large number of swivels and lantaka. the magindanao warriors of those days wore armor coats and helmets and carried krises, spears, and shields. the natives made gunpowder and secured their saltpeter from a cave near taviran. they built vessels of all dimensions and cruised as far as java and the celebes. their vessels were always long for the breadth and very broad for their draft of water. in 1774 mawlana retired from office in favor of his brother, pakaru-d-din. pakar was a weaker man than his brother and practically had very little control over affairs, and always acted in important state questions with the advice and consent of kibad, his nephew. during his time the english tried to get bongo island and to establish a footing near the mouth of the pulangi. sultan pakaru-d-din was succeeded by kibad sahriyal, who possessed many of the good qualities of his father and ruled with firmness and success. in the meantime the power of spain in mindanao had revived and her forces became active again. kibad maintained friendly relations with spain and signed a treaty with her in 1794, in which he promised not to enter into any treaty or agreement with another power. like his father he had many wives and concubines and begot many children, chief among whom are sultan kawasa and alamansa sul-karnayn. kawasa succeeded his father and maintained the dignity of his office and the prosperity of his sultanate. he is often called anwaru-d-din (lights of religion) and amiru-l-umara (the prince of the princes). he had many children, chief of whom was intirinu or amirul. alamansa died at dansalan. he had many children, two of whom were raja twa, and datu dakula, the prince of sibugay. raja twa begot untung and perti. the nation looked to raja twa to succeed sultan kawasa, but he died before his uncle, and the sultanate fell to his young son, untung. intirinu was rejected for family reasons and datu dakula was set aside to give representation to the favorite house of twa. untung was known as sultan sakandar qudratu-l-lah (alexander, the power of god). he was also surnamed jamalu-l-a'lam (a'zham), which means "greatest beauty." qudrat the second was the last sultan who observed all the customs and rites of the sultanate. he was young when he assumed power, and his reign marked the beginning of the downfall of the sultanate and the actual occupation by spain of the rio grande valley. in the treaty of 1837 he submitted to the sovereignty of spain and accepted the subordinate title of feudatory king of tamontaka. spain appointed his successor and prohibited his people from invading any territory west of point flechas. she regulated the licensing of boats sailing beyond zamboanga and erected a trading house at paygwan, at the mouth of the rio grande. in 1843 datu dakula ceded to spain the west coast of the zamboanga peninsula, promised to aid in suppressing slavery, and acknowledged spanish protection. in 1845 sultan qudrat confirmed the treaty of 1837, with a more definite submission, and allowed the establishment of a spanish trading house at cotabato. this aggression on the part of spain was prompted by her increased strength and an additional naval revival. steamboats and improved firearms ended moro aggression and solved the moro question. in 1851 polloc was occupied and was made a naval station. in 1857 spanish boats advanced as far up as tambao and drew up a treaty with the sultan of talakuku in which he acknowledged his surrender and his submission to the authority of spain. in 1861 camps were established at cotabato, libungan, tambao, taviran, and tamontaka. sultan qudrat begot mamaku, ambuludtu, mastura, raja putri, and others. mamaku is the present raja muda of magindanao and lives at cran, sarangani. ambuludtu and mastura are living at nuling, about 1 mile above cotabato. raja putri, generally known as the princesa, was datu utu's wife. sultan mohammed makakwa, the son of intirinu, succeeded qudrat. he was the last sultan of magindanao who lived in cotabato. the spaniards paid him a monthly salary of 70 pesos, but kept him under complete control. in his days modern cotabato was built, and in 1871 it was made the capital of mindanao. an earthquake destroyed the town that year, and in 1872 it was abandoned as capital in favor of zamboanga. makakwa died about 1883, and his son, pablu, became sultan. pablu's full title was sultan mohammed jalalu-d-din pablu. he lived at banubu, opposite cotabato, and was the last sultan who received a salary from the spanish government. in 1884 the spanish engaged the forces of idris, the sultan of talakuku, on the banks of the river at tambao and completely defeated him. idris then signed a treaty acknowledging unconditional surrender and submission. during pablu's life general terrero conducted the campaign of 1886-87 against datu utu of bwayan, and the spanish gunboats destroyed every fort on the river. datu utu resisted the spanish invasion vigorously and repeatedly, but he was repeatedly defeated, and the moros of the rio grande felt convinced that the arms of spain were much superior to their own, and have submitted peacefully ever since. pablu's sultanate was nominal and powerless. in 1888 pablu died, and the seat of the sultanate remained vacant until about 1896. pablu died without a male heir. mamaku, the raja muda of magindanao, did not meet the requirements of the sultanate, so the sultanate passed over to the house of datu dakula the first. the prince of sibugay had three sons, pagat, puyu or jamalu-l-kiram, and datu dakula the second. pugat, the eldest, begot mamuppun, the last prince of sibugay, and mangigin. datu dakula the second begot datu dakula the third, who lives at kumaladan, at the head of damanquilas bay. mamuppun was passed over by the council of the datus in favor of mangigin, the present sultan. mangigin is a weak man. after his succession he went to libungan and lived there during spanish rule. after the spanish evacuation and after the attack on cotabato by datus ali, jimbangan, and piang, which occurred in 1899, he became fearful of the saraya datus and returned to peaceful sibugay, his birthplace and the land of his father. in her conquest of mindanao spain directed her forces against the district of sibugay first, and then against mindanao. the district of sibugay was in a state of complete submission before the rio grande moros were controlled. the subjection of sibugay advanced to such an extent that in 1896 the region was divided into three districts, to each one of which a datu was assigned by spanish authority. the datus received orders and directions from the governor of zamboanga direct, and an annual tax of one real was imposed upon every subano and moro male above the age of 18 years. chapter ii laws of the moros general introduction the mohammedan conquerors of mindanao and sulu established a new form of government planned on lines similar to those of the arabian caliphate, and adopted written codes of law for guidance in the administration of the state. in all probability the art of writing was not known in mindanao and sulu prior to the mohammedan invasion. the author has no knowledge of the existence of any written law among the pagan tribes of mindanao, nor of any written material that antedates islam in mindanao or sulu. the moros are not savage, though they seem so at first sight. as early as the end of the fifteenth century they could read and write. mohammedanism encouraged education and invited learning. the arabic alphabet was applied to the mindanao tongue, and old arabic and malay books on religion and law were translated into the native magindanao and ranao dialects. the moros of magindanao have translations of the quran, hadeeth, some books on law, some commentaries on the quran, some magic, and other varied literature. their original writings in the magindanao tongue consist of many genealogies and stories. the sulu moros have done the same. they acted independently, but on the same general lines. the languages of mindanao and sulu are members of the general malayan family of languages, but they differ so much as to render intercourse impracticable without an interpreter. the moros are several tribes, and each tribe differs as much from the others as the visayan and the ilocano and the igorot tribes differ one from another. the laws of these tribes are different. they came from similar sources, but they were worked out and compiled separately and independently. the present chapter includes the best official codes of magindanao and sulu. the manuscripts themselves are undoubtedly authentic and complete. every care has been taken to render the translations as accurate and complete and useful as possible. the luwaran; or, the laws of magindanao introduction the term luwaran, which the mindanao moros apply to their code of law, means "selection" or "selected." the laws that are embodied in the luwaran are selections from old arabic law and were translated and compiled for the guidance and information of the mindanao datus, judges, and pandita who do not understand arabic. the mindanao copies of the luwaran give no dates at all, and nobody seems to know when this code was made. they say it was prepared by the mindanao judges some time ago, but none of those judges is known by name. datu mastura's copy of this code was written about 1886, and it is undoubtedly copied from some older manuscript. the original manuscript [11] accompanying this code is older still, but it bears no date at all. the arabic books quoted in the luwaran are minhaju-l-arifeen, taqreebu-l-intifa, fathu-l-qareeb, and miratu-t-tullab. the first of these, generally known as the minhaj, is the chief authority quoted. datu utu had an old copy of the minhaj that looked more than two hundred years old. the author of the minhaj must have lived in the ninth or tenth century. the compilation of the luwaran must have been made before the middle of the eighteenth century. each mindanao datu is assisted in the administration of justice by a judge and a vizier. the judge is called datu kali. the word kali is derived from the arabic word meaning "judge." the datu kali is the chief pandita of the district and is supposed to be the best-informed man of the community. the pandita is the scholar who can read and write and perform the functions of a priest. the vizier is called "wazir;" he is a pandita, too, and acts in a semijudicial and clerical capacity. mohammedan law being based on the teachings of the quran, the chief pandita of the district is naturally regarded as the most competent expounder of the law and the best-fitted person in the community to act as a judge. as the wazir is a pandita, he should be a well-informed and wise man. some datus are pandita themselves, and some take all matters into their own hands and delegate none of their offices or duties to a judge or a vizier; but this is the exception, not the rule. in making the luwaran the mindanao judges selected such laws as in their judgment suited the conditions and the requirements of order in mindanao. they used the arabic text as a basis, but constructed their articles in a concrete form, embodying genuine examples and incidents of common occurrence in mindanao. in some places they modified the sense of the arabic so much as to make it agree with the prevailing customs of their country. in a few instances they made new articles which do not exist in arabic but which conform to the national customs and common practices. the authority of the luwaran is universally accepted in mindanao and is held sacred next to that of the quran. the mindanao judge is at liberty to use either of them as his authority for the sentence to be rendered, but as a rule a quotation from the quran bearing on the subject is desirable. all datus and viziers and all persons acting in the capacity of a chief or a vizier find the luwaran very convenient and helpful. very few people can become kali, but all who are able to read can study and use the luwaran. consequently the luwaran has had general use, and copies of it are seen in all the districts that speak the magindanao dialect. to establish this fact copies of it were secured from the ruling datus of bagumbayan and of saraya or the upper valley. the copy [12] secured from datu mastura is by far the most complete of all. the text is well written, neat, and distinct. the original arabic articles are written separately on the margin of the book and opposite the magindanao articles with which they were supposed to correspond. datu mastura is the best living descendant and representative of the house of mindanao, and he probably owns the most reliable books and documents that have been transmitted from the previous generations. this book is certainly the best specimen of magindanao literature; it is genuine, correct, and well written. on account of inability to secure the book itself, an accurate and exact copy of the same was taken. the magindanao articles are written separately and are numbered for convenience in reference. the translation is not exactly literal, but nearly so. the arabic marginal quotations are copied separately and are numbered in the order in which they appeared in the original copy. they are also translated, and a table indicating the arabic quotation which corresponds to each article of the luwaran is attached to the introduction to the translation. in actual practice the moros do not distinguish between custom and law. many of their customs are given the force of law, and many laws are set aside on account of contradiction to the prevailing customs of the day. slavery is such an established custom and institution of the land that it is generally sanctioned and supported in the luwaran. an oath on the quran is so firmly binding and the fear of perjury is so strong in the mind of the moro that oaths are generally taken and are always regarded as sufficient confirmation even in the absence of evidence. the moros are not strict nor just in the execution of the law. the laws relating to murder, adultery, and inheritance are seldom strictly complied with. indeed, the laws of inheritance as given in the luwaran are generally disregarded and are seldom considered at all. mohammedan law does not recognize classes, except the slave class. but moro law is not applied equally to all classes. great preference is shown the datu class, and little consideration is given to the children of concubines. the luwaran, nevertheless, is the recognized law of the land and compliance with it is a virtue. translation of the luwaran, the magindanao code of laws in the name of god the compassionate and merciful, praise be to god, who led us to the faith and religion of islam. may god's blessing be with our master mohammed and with all his people and followers. the following articles are taken from the minhaj and fathu-l-qareeb and taqreebu-l-intifa and mir-atu-t-tullab and have been translated from the arabic into the java (malay) dialect of mindanao, the land of peace: article i if two people disagree as to the ownership of a certain property, the actual possessor has the right to the property if he swears to that effect. in case both of them are in actual possession of the property, both ought to swear. if both of them swear to that effect, the property shall be divided between them equally. if only one person swears, the property shall be given to that person alone. article ii if a person borrows an article and loses it, he shall replace it or pay its value. the same rule shall apply in case the article is stolen. there shall also be paid a reasonable additional compensation for the lost article. article iii if a person borrows an ax or a button, and the ax is broken or the button lost while being used for the purpose for which it was loaned, and not on account of carelessness, the lost article shall not be replaced. but if the ax is used at a place overhanging the water or is used to cut a stock of bamboo without being well tied or fastened, and is lost, it shall then be replaced. article iv if two persons disagree as to whether or not a certain debt has been paid and have no witness to the fact, the plaintiff's claim shall be sustained in case he confirms it by an oath. in case he refuses to take an oath the defendant's claim shall be sustained. article v if a person intrusts another with his property and later calls for it and it is denied him on the plea that it has been taken back or that it was lost, and no witness can be obtained, the trustee's plea shall be sustained if he confirms it by oath. article vi if a person enters a claim to his lost property which has been found and kept by another person, and the finder refuses to deliver the property on the plea that it is his own property and that it has been in his possession for a long time, and there be a witness who testifies that the property is a find and not an old possession of the finder, the finder shall return the property found and pay a compensation of one cuspidor or two. article vii the seizer of another's property shall return the seized property and pay an additional amount proportional to the interest derived from the property. article viii if a person enters the house of another at night without the consent of the owner thereof, and the said owner complains of the offense, the defendant shall be fined four cuspidors. article ix if a man enters the house of another with the intention of holding private intercourse with a woman therein with whom it is unlawful for him to associate privately, and the woman objects, he shall be fined four cuspidors or four pesos, or shall suffer from twenty to thirty-nine lashes, or shall be slapped on his face, at the discretion of the judge. article x if a woman comes into the house of a man with the intention of marrying him and of living with him, and the man refuses to marry her and she is later taken away by her people, the man shall not be liable to fine or punishment. article xi section 1. if a man divorces his wife after the conclusion of the marriage act or ceremonies, and before any sexual intercourse has taken place, the woman shall have half of the dower only. if the divorce occurs after sexual intercourse has taken place, the woman shall have all the dower. sec. 2. if a man refuses to marry a woman after having been engaged to her, the whole dower shall be returned to him, excepting the expenses for the feast incurred by the father of the woman. article xii if a person curses or abuses another person without cause, he shall be fined not more than three cuspidors. article xiii section 1. if a person falsely claims another person as his slave, he shall be fined the value of one slave. sec. 2. if a person defames another person by calling him balbal (a human being who transforms at night into an evil spirit which devours dead people) or poisoner, he shall be fined one slave or the value of one slave. article xiv if both the giver and the receiver understand that a return gift shall be made for a certain given property and the receiver fails to make the gift, the giver can take back the gift. article xv no gift given without expectation of reward can be recovered after the receiver has had possession of it. but if the giver changes his mind before the receiver takes possession of the gift, the giver resumes his ownership of the given property. article xvi property the gift of parents to their child shall be recoverable if it has not been expended or destroyed. article xvii in the discretion of the judge and the datu, a thief of property amounting to the value of one malong or more shall have his hand cut off and shall return the stolen property. if the stolen property does not amount to the value of one malong, the thief shall suffer thirty-nine lashes or pay a fine of four cuspidors. article xviii if there is any doubt of the truth of evidence or the truthfulness of a witness, they shall be confirmed by oath. article xix testimony of a slave which is detrimental to himself shall be accepted. article xx testimony of children and of the insane or imbecile shall be held invalid. article xxi if a person enters a house without permission and in the absence of the owner, he shall be held responsible for and shall restore or pay for any article that may be found missing from said house. a person who enters the field of another shall likewise be held responsible for and shall restore or pay for any article that may be found missing from said field. article xxii if a person loans or sells to a slave without the knowledge or consent of the master of the slave, the person who loans or sells shall be guilty of a misdemeanor; and the master of the slave shall not be held responsible for the transaction of his slave. article xxiii if in the course of an agreement for the sale of property questions arise respecting the price or the amount of the sold property, and no witness can be obtained, the seller shall be sustained if he confirms his statement by oath; but the statement of the buyer shall be sustained if the seller fails to take oath. article xxiv if the seller and the buyer differ as to whether a certain defect in the purchased property developed prior to or later than the date of the purchase, the seller's statement shall be sustained if he confirms it by oath; otherwise the buyer's statement shall be sustained. article xxv if after the purchase of property the buyer discovers a defect in the property which existed prior to the sale or purchase, he may return the property to the seller and pay him a reasonable compensation proportional to the decrease occasioned in the value of the property through the detection of the defect; and the buyer shall then recover the purchase price of the property. article xxvi no purchased property shall be returnable to the seller on account of a defect therein which has developed after the sale. article xxvii if a person buys a slave and later discovers a defect in him and returns him to the seller, but the seller denies the slave's identity, the statement of the seller shall be sustained if he confirms it by oath; otherwise the statement of the buyer shall be sustained. similar cases pertaining to other kinds of property shall be judged similarly. article xxviii it shall be lawful to return promptly purchased property which is defective. the return shall not be delayed longer than prayer time or mealtime, or one night in event of the purchase having been made in the evening. article xxix if a creditor dies and his heirs sue his debtor, but the debtor denies the debt on the plea that the deceased creditor gave him as a gift, or in charity, or that he has paid for that for which he is sued, and there is no witness, the heir must swear. failure to swear on the part of the heir shall render the debtor free from payment of the debt. article xxx if a person buys property or a slave, and another person recognizes the slave or property as his own and lays claim thereto, and is able to produce a witness to that effect, the buyer shall return the purchased property or the slave to the seller, but shall recover whatever he has paid. article xxxi if a person finds his property in the possession of another, and is able to recover it without any injury or injustice, he shall be justified in so doing. but in the event of an objection being raised to the recovery or in case an injury or injustice is unavoidable in recovering the property, he shall present the matter to the datu and to the judge, after which it shall be justifiable for him to take his property even though it be necessary to break through a door or through walls to do so. under any circumstances he shall have the right to recover his property, or its equivalent in kind, or any other substitute not in excess of the value of the property. article xxxii if, while a person is spying on the house of another, the occupants throw a stone or other thing out of the house and thereby cause the death of the spy, no guilt shall be attached to their action. article xxxiii if the provisions or the fowls of a person are eaten by cats or cattle, and the owners thereof are notified by the injured person to secure their animal or animals, and the warning or notice is disregarded so that the provisions or fowls are eaten up, the owners of the cats or cattle shall be held responsible for the loss. article xxxiv section 1. if a person seduces or cohabits with a female slave, held by him as security for debt, with the knowledge or consent of the debtor, he shall not be held guilty; but he shall give her a dower. sec. 2. if the seduction or cohabitation occurs without the consent of the debtor, the creditor shall be liable to a fine, or shall give the woman a dower to be paid to the debtor. sec. 3. if the creditor begets a child of the slave held as security in the preceding section, he shall buy the child from the debtor; otherwise the child shall become the slave of the debtor. article xxxv if the creditor and the debtor differ as to the security or its amount, the debtor's statement shall be sustained if confirmed by oath; otherwise the statement of the creditor shall be sustained. article xxxvi if the security is lost and no blame is attached to the creditor, he shall not be held responsible for the loss, and the debtor shall not be relieved from his debt. article xxxvii if a principal and his agent differ, and the agent claims that he has acted in accordance with the orders of his principal, and the claim be denied by the principal, the statement of the latter shall be sustained if confirmed by oath. article xxxviii if a married woman commits adultery, both adulterer and adulteress shall suffer eighty lashes. if the lashes are changed or reduced to a fine, half the number of the woman's lashes shall be added to the man's fine. article xxxix if a person charges another with the payment of his debt, and the creditor sues the proxy for the unpaid debt, but the proxy claims to have paid the same, the creditor's statement shall be sustained if confirmed by oath. article xl if a man seduces a maiden, both shall suffer one hundred lashes, and the man shall marry the woman and live with her even though he is married. article xli the statement of the plaintiff shall be sustained if confirmed by a witness. if there is no witness, the defendant shall take an oath. article xlii if slaves commit adultery, both man and woman shall suffer fifty lashes. article xliii if a married man commits adultery with a free woman, both shall be stoned to death. the punishment of the man may be reduced to imprisonment. the woman shall be buried up to her chest and be stoned with medium-sized stones. article xliv if a free man seduces a maiden slave, the property of another person, and she becomes pregnant and dies during childbirth, the seducer shall then pay the value of the slave to her owner. article xlv if a bachelor or widower commits adultery and is killed by a non-mohammedan, the non-mohammedan shall be put to death. but a mohammedan who may kill such an adulterer shall not be put to death. article xlvi if a man recognizes his cattle or his trees in another's charge and notifies him of the fact, and has a witness to confirm his statement that the cattle or trees are his, he shall be entitled to the produce of the cattle or of the trees although they remain in the charge of the other. likewise, if a slave who has been lost is recognized by his master in the charge of another person, and the master of the slave notifies that person of the fact that the slave is his and has a witness to confirm his statement, he shall be entitled to whatever his slave may produce if he remains in the charge of the person aforesaid. article xlvii if a man rents a field of another with the intention of cultivating it, but later fails to do so and returns it to the owner thereof, he shall be liable for the rent and shall pay the same at harvest time, as though he had cultivated the land and reaped the produce. likewise, if a boat is hired, the hire thereof shall be paid to its owner, whether or not it has been used for the intended travel. article xlviii if a slave runs away and enters the house of a certain person, or if a person finds a runaway slave, the owner of which is known to him but to whom he fails to give notice of the fact, and the slave again runs away, he, the finder, shall be responsible for the slave to the owner thereof. article xlix if a married man leaves his home on a long journey and nothing is heard of him, his wife shall not have the right to marry another; but if she learns that he has died or that he has divorced her, she shall then wait four years, after which she shall observe the customary mourning for his death; then she may marry again. the judges shall be careful not to change this decree in order that their power and influence may not suffer. article l if a boat is in danger of sinking, it shall be right and proper to throw its cargo overboard. but if a man throws away property without the knowledge of the owner thereof, and the boat does not sink, he shall replace the property. if a person tells another to throw his property overboard, promising to replace it, and the property is thrown overboard but the boat does not sink, he shall replace the property; but where there has been no promise to replace the property he shall not be held liable. article li section 1. if a debtor dies, his debts shall be payable from his estate, his estate being regarded in the nature of a security. sec. 2. if a debtor dies and leaves no estate, his heirs shall not be liable for his debt. by heirs is here meant parents, children, brothers, sisters, grandchildren, or grandparents. sec. 3. if a debtor dies and leaves an estate to his heirs, the estate shall be expended in payment of his debts whether it is sufficient in amount or not. sec. 4. if the heirs divide their inheritance before they know of the existence of a claim for debt against the estate, they shall return their shares to pay the debt, whether the inheritance is sufficient or not; and if they have used their inheritance prior to the knowledge of the debt, they shall pay out of their own property an amount equal thereto in payment of the debt. article lii if a man orders another to shoot at a deer, believing that he is ordering him to shoot at a deer, and the person shoots believing also that he is shooting at a deer, but hits a man, neither the shooter nor the man who has ordered him to shoot shall be liable to punishment, but shall pay only a light fine as blood money. likewise, if a man orders another to shoot at a tree, believing that he is ordering him to shoot at a tree, and the person shoots, believing also that he is shooting at a tree, but hits a man, neither the shooter nor the man who has ordered him to shoot shall be liable to punishment, but shall pay only a light fine as blood money. article liii in case a person orders another person to climb up a tree and the climber falls from the tree, there shall be no liability to punishment, whether the person dies or not. a medium fine only shall be paid as blood money. article liv if a female slave in the possession of a certain person has a child which is recognized by another person as his own child and born of the slave during her stay in his possession, and the claim is denied by her present owner and there is a witness to the truth of the claim, the plaintiff shall confirm his testimony by oath. failure to confirm this testimony by oath and the lack of conclusive evidence that the child is a free child, begotten by the plaintiff of the slave, shall render the claim null. article lv if a man recognizes a slave whom he has liberated in the possession of another man who denies the claim, and there is a witness who bears out the claim of the plaintiff, the plaintiff shall confirm his statement by an oath, and, having taken an oath, may recover his slave and reliberate him. but his statement shall not be sustained if an oath is not taken. article lvi section 1. if two persons enter into partnership and later one of them asks the other to sell the property or stock and divide the proceeds, and the property is sold and its amount received, but the seller claims the whole amount as his, to which the other partner objects on the ground that it belongs to the partnership; or if the seller claims that it belongs to the partnership, and the other partner claims that it is his own, the statement of the person in possession of the property or its price shall be sustained if confirmed by oath; but otherwise it shall be rejected. sec. 2. if in the preceding case the seller divides the proceeds and gives his partner a part thereof and holds the remainder for himself, claiming that the amount of the proceeds has been divided, but the other partner refuses to accept the division on the ground that it has not occurred, the claim against the division by the complaining partner shall be sustained if confirmed by oath; otherwise it shall not be sustained. sec. 3. if one of the two partners in the preceding case buys and takes possession of the property of the partnership and then denies that it is the former property, claiming that it has been bought by some one else, to which the other partner objects as a false claim, the statement of the latter shall be sustained if confirmed by oath; otherwise the buyer's statement shall be sustained. article lvii section 1. if a free man kills another free man, or a free woman kills another free woman, or a slave kills another slave, the slayer shall be punished. sec. 2. if a free man kills a slave, the free man shall not be put to death. sec. 3. if a slave or other servant kills a free person, he shall be put to death. article lviii the blood money for the life of a woman or of a hermaphrodite shall be half that of a man; so also shall the fines for wounding a woman be rated as half those for wounding a man. article lix if a free man divorces his wife three times, or a slave divorces his wife twice, it shall not be lawful for him, the man, to marry again before the divorced woman is married to another person. article lx section 1. if the husband of a pregnant free woman dies, or a free woman is divorced, she shall mourn four months and ten days. sec. 2. if a slave woman is divorced, she shall mourn two months and five days. sec. 3. if a pregnant free woman is divorced, she shall mourn until childbirth. article lxi if a person throws the sweepings of a house or the parings of fruits on the road, and a person carrying certain articles and passing on the road steps on them and thereby slips and falls and loses his property, the person who threw the sweepings or the fruit parings on the road shall pay for the lost property. he shall also be responsible for any injury resulting from the fall. article lxii if a person gives an imbecile or an insane person or a child poison to eat, and said child, insane person, or imbecile dies as a result thereof, he shall be punished. article lxiii if a man gets drunk and fights or kills another, he shall be liable to punishment. article lxiv if a child or an imbecile or an insane person kills another person, he shall not be liable to punishment, but shall pay blood money. article lxv if a child under age is in a high place and is frightened by some person and as a result thereof falls and dies, the person who frightened him shall pay his blood money. article lxvi if a person who is shooting or hunting startles a child who happens to be in some high place, and the child falls and dies as a result thereof, he shall pay a small fine as blood money. article lxvii if a slave is wounded, the fine in compensation for his injury shall be the price of the slave in case of death, or an amount equal to the decrease in the value of the slave in case he does not die. article lxviii section 1. if a slave is guilty of cutting another, he shall be liable for the fine thereby incurred; if his master does not pay the fine, he may sell the guilty slave and pay the fine from the amount received therefor. sec. 2. if the master of the guilty slave refuses to sell him, he shall compensate for the decreased value of the slave who has been cut. article lxix section 1. if a plaintiff produces a witness, his statement shall be sustained. sec. 2. if a plaintiff has not a witness, the defendant shall take an oath; but if the defendant refuses to take an oath, the plaintiff shall swear and his statement shall be sustained. article lxx if the owner of a slave dies and his heirs claim the slave, and the slave objects on the ground that he had been liberated by his deceased master, the slave shall take an oath to that effect, which oath shall confirm his statement; but if an oath is not taken by the slave, the claim of the heirs shall be sustained. article lxxi all property loaned shall be paid back in kind, but if that be impracticable, the value thereof shall be accepted. article lxxii the will of a free person shall be legitimate whether he be a non-mohammedan or a person of bad character; but the will of an insane person or an imbecile or a child or a slave shall not be legitimate. article lxxiii if the legatee dies before the testator, the will shall be held invalid; but if the legatee dies after the death of the testator, the heirs of the legatee shall be entitled to his share under the will. article lxxiv if a person wills his estate to one of his heirs, the will shall be sustained if the other heirs consent to it; but if they do not consent, the will shall not be sustained. article lxxv if a person recognizes his property in the possession of another, which property he has neither sold nor given away as charity or otherwise, it shall be lawful for him to take or recover his property, unless he is afraid of being killed. in case he is afraid, he shall present the matter to the datu and then to the judge. article lxxvi the action of a guardian or agent shall be binding on the ward or the principal, respectively. the insane, imbeciles, or children shall never be guardians or agents. article lxxvii if two persons collide unintentionally and one person is injured, the liability of the guilty person for the fine or compensation thereby incurred shall extend to his heirs. the fine shall be small. article lxxviii if in the preceding case the collision is intentional, the liability shall be the same, but the fine shall be equal to half the limit. article lxxix if children or imbeciles or insane persons collide, the same law shall govern as in the case of sui juris persons. article lxxx section 1. a son, the only child, shall inherit all of the estate of his father and mother. sec. 2. a daughter, the only child, shall inherit half the estate of her father and mother. sec. 3. two or more sons, the only children, shall share the estate of their father and mother equally. sec. 4. in case one son and one daughter are the only children, the estate of the father and mother shall be divided into three equal parts, of which the son shall receive two parts and the daughter one part. sec. 5. in case of multiplicity of sons and daughters, the estate shall be so divided as to give each daughter half the share of one son. article lxxxi a husband shall inherit half the estate of his wife in event of her death and when she has neither a child nor a grandchild. article lxxxii in the event of the death of a wife who has children or grandchildren, her husband shall inherit one-quarter of her estate only, and the other heirs shall inherit the remaining three-quarters. article lxxxiii in the event of the death of a man who has no children or grandchildren, his wife shall inherit one-quarter of his estate only. article lxxxiv in the event of the death of a man who has children or grandchildren, his wife shall inherit one-eighth of his estate only. article lxxxv section 1. a father or son or wife or husband can not be disinherited by other heirs. sec. 2. a son disinherits full brothers and sisters, and all other heirs. sec. 3. full brothers and sisters disinherit more remote heirs. sec. 4. a grandfather, a father, and a grandson disinherit a brother or sister from the mother alone, or other heirs. sec. 5. a grandfather, brother, son, and uncle or aunt on the father's side disinherit a full nephew or niece, or more remote heirs. sec. 6. a full nephew disinherits another nephew who is not from a full brother or sister. sec. 7. a nephew on the father's side disinherits a full cousin and more remote heirs. sec. 8. a full uncle [13] or aunt disinherits an uncle or aunt on the father's side. sec. 9. a full cousin disinherits a cousin on the father's side. god's knowledge surpasses our knowledge. [the end] this copy [the original] was made at noon of the 20th day of jamadu-l-awal, in the year of the war between bwayan and the infidels [non-mohammedans]. wounds wounds are classified with respect to depth, locality, and tissue cut. to each class of wound a definite fine is fixed. class i simple wounds the fine for wounds of the skin unaccompanied by bleeding shall be three pesos. [14] class ii bleeding wounds the fine for wounds of the skin accompanied by bleeding shall be five pesos. class iii skin-penetrating wounds the fine for wounds of the skin where the skin is cut through and the flesh exposed shall be ten pesos. class iv flesh wounds the fine for wounds where the skin and flesh are cut through shall be fifteen pesos. class v periosteal wounds the fine for wounds where the skin and flesh are cut through and the periosteum exposed shall be twenty pesos. class vi deep wounds the fine for wounds that cut into the bone shall be twenty-five pesos. class vii fracture wounds the fine for wounds where the bone is fractured and cut through shall be fifty pesos. class viii dislocating wounds the fine for wounds where the bone is dislocated shall be seventy pesos. class ix skull-penetrating wounds the fine for wounds where the membranes of the brain are penetrated shall be two hundred and fifty pesos. class x brain wounds the fine for wounds where the brain is penetrated shall be three hundred pesos. class xi blood money the blood money for the intentional or willful murder of a moslem shall be one hundred camels or one thousand three hundred and seventy pesos. class xii the fine for amputating or cutting off one hand at the wrist, or higher, shall be fifty camels or six hundred pesos. class xiii deep bone wounds of the head or face the fine for deep wounds of the head or face shall be five camels, or sixty-eight and one-half pesos. class xiv fracture wounds of the head or face the fine for fracture wounds of the head or face shall be ten camels, or one hundred and thirty-seven pesos. class xv deep stab wounds the fine for deep stab wounds shall be thirty-three camels and one-third, or four hundred and fifty-six and two-thirds pesos, which is one-third of the amount of blood money. class xvi the minimum amount of the blood money of a moslem shall be eight hundred and sixty-eight and one-quarter pesos. class xvii the minimum blood money of a heathen or pagan, fifty-seven and one-quarter pesos. class xviii the fine for an involuntary deep wound of a pagan shall be two and four-tenths pesos. class xix the blood money for the accidental or involuntary murder of a pagan shall be forty-three and one-third pesos. class xx the fine for the intentional deep wound of a pagan shall be four and two-tenths pesos. arabic marginal quotations of the luwaran introduction these quotations are given here in the same order in which they appear on the margin of the original copy of the luwaran, with only a few clerical corrections. they are selections from arabic books on law and religion, and form the basis of the magindanao law as given in the luwaran. the order they come in does not always conform to the order of the corresponding articles of the luwaran to which they are appended. the magindanao judges who prepared the luwaran used these texts or quotations as authority for the corresponding magindanao articles they made. but subsequent scribes must have changed the order of these texts on account of their ignorance of the meaning of the arabic text and the places where they should be applied. for aid in reference the following table is prepared: article of corresponding arabic luwaran marginal quotations 1 1 2 2 3 3 4 4 5 4 6 8, 9 7 7 8 12 9 --- 10 --- 11 14-16 12 --- 13 --- 14 17 15 18, 19 16 19 17 20, 21 18 23 19 26 20 25 21 13 22 27 23 30 24 29 25 31 26 32 27 33 28 34 29 36 30 37 31 38 32 39 33 40 34 41 35 42 36 43 37 44 38 45 39 46 40 47 41 48 42 49 43 50 44 51 45 52 46 53 47 54 48 55 49 56 50 57, 58 51 59, 60 52 61-63 53 64 54 65 55 66 56 67-69 57 70-72 58 73 59 74 60 75, 76 61 78 62 79 63 81 64 82 65 83 66 84 67 85, 86 68 87 69 88 70 89 71 90 72 91 73 92 74 93 75 94 76 95, 96 77 97 78 98 79 99 80 100-103 81 104 82 105 83 106 84 107 85 108 translation of the arabic marginal quotations of the luwaran 1. the person in charge of a property the subject of a suit has the first right to that property; his right must, however, be confirmed by oath. if both parties have charge of the property, their rights shall be regarded equal, and both parties shall take oath. 2. the compensation for a slave shall be equal to his value. the loss of a limb shall be compensated for by the amount by which that loss reduces the value of the slave. 3. no indemnity shall attach to the loss or damage of an article borrowed if such loss or damage be incurred in the proper use of such article. 4. the plea of the defendant in reference to the loss of a borrowed article shall be confirmed by oath. in cases of doubt the loss shall be established first by evidence, and the plea of the defendant shall then be confirmed by oath. 5. if the borrowed article or property is subjected to insecurity or danger, responsibility shall attach to such an action. 6. no suit shall be triable after the lapse of fifteen years from the date of the act giving rise to the suit. imam shafii restricted the application of this law to cases where the plaintiff and the defendant live in one town, and where the delay was avoidable. 7. lost or damaged finds shall be compensated for in kind or in value. 8. a find shall be the property of the finder irrespective of his religion or character. 9. the find shall be delivered to its owner, if the owner is known. the finder shall be held responsible for loss of the find or damage to it as long as the find is in his charge. 10. property seized by force shall be returned to its owner with compensation for any loss that may have been incurred by the seizure. if the seized property be lost, the seizer shall compensate for the loss in kind or in value. 11. if the seizer and the owner differ concerning a defect in the property, the owner's statement shall be valid if confirmed by oath. 12. god said, "to you believers i say, you shall not enter the houses of others without their permission." 13. mohammed said, "whoever enters the house of another shall be responsible for the loss that may occur therein." 14. if a divorce occurs after marriage but prior to sexual intercourse, half the dower shall be paid. if the divorce occurs after sexual intercourse, all the dower shall be paid. 15. no dower shall be paid if the marriage contract is broken prior to sexual intercourse. 16. the expenses of the marriage feast shall not be recovered. 17. a gift conditioned on compensation may be recovered in kind or value. 18. the will of the giver and the acceptance of the receiver shall determine the gift. 19. a gift not conditioned on compensation shall not be recoverable. 20. a thief shall have his hands cut off. 21. the thief shall return the stolen property or compensate for its loss. 22. the confession of the thief and the oath of the plaintiff shall confirm the theft. 23. the plaintiff's oath if corroborated by evidence shall confirm the theft. 24. if the statement of the defendant begins with confession and ends with denial, the confession shall be regarded valid. 25. the testimony of a minor or insane person is null. 26. the testimony of a slave shall be valid when it bears a disadvantage or punishment to himself. 27. a slave shall not be contracted with or loaned without the permission of his master. 28. a slave shall be liable for the payment of a debt contracted prior to liberation. 29. if the vender and the vendee differ as to the time a certain defect developed in the property sold, the vender's claim shall be sustained if confirmed by oath. 30. differences between the vender and the vendee as to the amount or price of the property sold or date of the purchase shall be subject to oaths by both parties. 31. if a defect in the purchased property is recognized after the conclusion of the sale, the property may be returned to the vender, who shall retain of its price an amount equal to the reduction in the value of the property occasioned by the discovery of the defect. 32. the occurrence of a defect in a slave after the conclusion of the contract does not constitute a right by which the vendee can revoke the sale contract. 33. if a person purchases a slave and later presents a defective slave and requests the revocation of the purchase contract, and the vender denies the identity of the slave, the vender's statement or plea shall be sustained if confirmed by oath. 34. if a defect is observed during prayer or meals or at night, notice thereof may be delayed for the time necessary to finish the prayer or meal, or overnight. 35. other nonpermissible delays annul the right to revoke a sale contract. 36. if a debtor is sued by the legatee of the creditor and makes the plea that the debt was canceled, the legatee shall take oath to the effect that he has no knowledge of the cancellation of the debt. 37. a sale contract may be revoked if it does not define the price of the property sold. 38. the right to property justifies breaking a door or breaking through walls for the purpose of securing it, or its equivalent in kind. 39. if a person spies on the wife of another person through cracks or holes in her house and an occupant throws a stone at him which hurts or kills him, no fault shall attach to such action. 40. if the owner of a cat is warned of the fact that his cat eats fowls or provisions of others and the cat repeats such an act, the owner of the cat shall be held responsible for its action. 41. if a woman is held as security for debt, and her trustee cohabits with her, without the knowledge and consent of the debtor, his action shall be regarded as adultery and he shall pay her dower. if such cohabitation is with the consent of the debtor, no blame shall attach to such action, but the creditor shall pay her dower. the child born under such conditions shall be regarded as a free child, but his value shall be paid to the debtor. 42. in cases of difference between the debtor and the creditor in reference to the security and its value, the debtor's statement shall be sustained if confirmed by oath. 43. the creditor shall not be held responsible for the unavoidable loss or destruction of the security. 44. in cases of difference between the principal and his agent in reference to the compliance of the latter with the instructions of the former, the statement of the principal shall be sustained if confirmed by oath. 45. the penalty for adultery committed with a married woman shall be eighty lashes. 46. if an agent is intrusted with the payment of a debt of his principal and is sued by the creditor for his failure to pay the debt, the statement of the creditor shall be valid if confirmed by oath. 47. the penalty for adultery committed with an unmarried woman is, according to the letter of the law, stoning to death of both adulterers. this is generally reduced to 100 lashes for each offender. 48. the judge shall first hear the evidence of the plaintiff if he has any, and render judgment accordingly. if no evidence is produced, the statement of the defendant shall be valid if confirmed by oath. 49. the punishment for adultery committed by slaves is fifty lashes. 50. in stoning adulterers both men and women shall be buried to the level of the chest and the stones shall be of medium size. 51. if a man has sexual intercourse with the slave of another man and she dies during childbirth, he shall pay a fine equal to her value. 52. if a married mohammedan is killed by a christian on account of adultery, the christian shall be put to death; but if he is killed by another mohammedan, the latter mohammedan shall not be put to death. 53. if a plaintiff proves by evidence his ownership to a certain animal or tree, he shall be entitled to the future produce of that animal or tree. 54. if a person secures a lease on a certain piece of land for the purpose of cultivating it, he shall be bound by the terms of the lease whether he cultivates the land or not. the payment is generally made at harvest time. 55. if a slave runs away from his master and seeks refuge in the house of another person who knows the master of the slave and such person does not inform the master of the slave of the fact, such person shall be held responsible for the slave whether the slave stays with him or runs away again. 56. if a husband's absence is unusually long and no information can be obtained concerning him, his wife shall not marry another person unless she knows surely that he is dead or that she is divorced. 57. if a ship is in danger of foundering, the cargo should be cast overboard for the purpose of saving the passengers; but if a person cast overboard another person's property without order or permission, he shall be held responsible for the loss. 58. if a person under conditions similar to the preceding case orders another person to cast his property overboard and such other person casts his property overboard, no responsibility shall be attached to the order, unless express responsibility is stated in the order. 59. the estate of a deceased person shall be held as security for the payment of his debt, whether the debt be known to his heirs prior to or after the division of the estate. 60. the heir has the right to take possession of the estate if he pays the debt with his own money. 61. no punishment shall attach to accidental murder while hunting, whether the shooting be voluntary or forced. 62. if in such a case a fine is imposed, it shall be equally divided between the shooter and the person who ordered the shooting. 63. if a person shoots at a tree and kills a person, or shoots at a person and kills another, such murder shall be regarded as accidental murder. 64. if a person is ordered to climb a tree and he falls and dies, no blood money shall be paid by the person who gave the order, for such murder is not intentional. 65. if a person claims that a certain child was born of a female slave who conceived the child while in his possession, and confirms his claim by witness and by oath, his claim shall be valid and the child shall be regarded as a free child. 66. if a person claims that a certain slave had been his and was liberated, and his claim is confirmed by a witness and by oath, the slave shall be liberated again. 67. if two parties differ as to whether a certain property belongs to one of the parties or to both of them as partners, the statement of the party in charge of the property shall be valid if confirmed by oath. 68. if a person claims that the partnership has been dissolved and that a certain property has become his own, and his claim is contested by another party to the partnership, the statement of the latter party shall be valid if confirmed by oath. 69. if a person who is a party to a partnership buys a certain property and states that such property has been bought for the partnership, and his statement is contested by another party to the partnership, the statement of the purchasing party shall be valid if confirmed by oath. 70. god said, "the punishment for murder has been ordained for you, a free person for a free person, a slave for a slave, and a woman for a woman." 71. such punishment shall not be executed without the authority of the imam (caliph). 72. a free person shall not be put to death for killing a slave, but all grades of slaves shall be subject to such punishment. 73. a free woman or a hermaphrodite shall be regarded as half a man in all considerations referring to person or injury. 74. if a free man divorces his wife three times or a slave divorces his wife twice, it shall not be lawful for either of them to marry the same woman again before she has been married to another person. 75. a nonpregnant woman shall mourn for her husband four months and ten days in full. a nonpregnant slave woman shall mourn for her husband two months and five days. 76. god said: "your widows shall not be allowed to marry again before the lapse of four months and ten days. pregnant widows shall not marry again before childbirth." 77. a divorced wife who is still in the period of suspension can inherit unless she has been divorced three times. 78. if a person throws sweepings or melon rinds on the road, he shall be responsible for the consequences. 79. if a person helps a child or insane person to poisoned food, he shall be punished. 80. adults and sane persons shall be liable to punishment for murder; an intoxicated man is also liable to punishment for the same offense. 81. intentional intoxication fixes the liability to punishment. 82. a defendant's plea on the ground that he was a child or insane at the time the murder or crime was committed, if reasonable and confirmed by oath, shall be valid. a child is exempt from oath and from punishment. 83. if a person startles a minor standing near the edge of a roof (flat roof) and the minor falls and dies on that account, he shall pay a heavy fine. 84. if a minor is accidentally alarmed and falls from a roof and dies, the fine shall be light. 85. injuries done to a slave are compensated for by the amount of the reduction affecting his value. 86. similar to 85. 87. a slave is liable to fine for his crimes; his master shall either pay his fine for him or sell him to pay the fine, if the price exceeds the fine. if the fine exceeds the price, the slave shall be held personally responsible. 88. in case the plaintiff can not produce evidence or witness, the defendant shall take the oath. but if the defendant refuses to take oath, the plaintiff shall take oath and confirm the charge. 89. if the plaintiff claims that a certain adult person is his slave, and the defendant denies the charge, the defendant's statement shall be valid if confirmed by oath. 90. what is borrowed shall be returned in kind. 91. the will of a free adult shall be legitimate whether he be an immoral person or an infidel. the will of the insane, the intoxicated, the child, and the slave shall not be legitimate. 92. a will is null if the legatee dies before the testator; otherwise it is legitimate, and [the property] may be transmitted to the heirs of the legatee. 93. a will can not exclude legitimate heirs in the interest of one heir alone, except with the consent of the excluded heirs. 94. a person may recover his property directly if that can be done peaceably; otherwise he shall submit the case to the judge. 95. to be legal and binding the instructions and the trust of a principal must be authentic. 96. the agent must be capable of independent action and must be of age and sane. the agent shall not be a minor or insane. 97. in case of involuntary collision attended with the death of both parties, the respective heirs shall pay a light fine. (this is intended to secure aid for funeral expenses.) 98. if the collision is intentional, the fine shall be heavy. if only one party intended the collision, such party shall be punished on the merits of the case. 99. minors and insane persons shall be judged like sane adult people. (this has reference to conditions similar to those of the two preceding cases.) 100. male children, whether single or multiple, shall inherit all the estate of the parents. 101. a daughter shall inherit one-half. 102. two or more daughters shall inherit two-thirds. 103. in case of multiplicity of children, males and females, the male child shall receive twice as much as the female child. the word of god said: "this command god gives you concerning your children, the male shall have the shares of two females." 104. god said: "each man shall have half of the inheritance of his wife if she have neither a child nor a grandchild born of a son." 105. god said: "if a man's wife dies and leaves a child or a grandchild born of a son, he shall have a quarter of her inheritance." 106. god said: "if a husband dies without a child or a grandchild born of a son, the wife shall inherit a quarter of his estate." 107. god said: "if a husband dies and leaves a child or a grandchild born of a son, the wife shall inherit an eighth part of his estate." 108. the father, the son, and the husband can not be disinherited. transliteration of articles i-viii of the luwaran bismi-l-lahi-r-rakmani-r-rahim. alhamdu lillahi-l-lazi hadana lil iman wal islam, wa sálla-l-lahu ala sáyyidina muhammad wa ala alihi wa sahbihi ajmain. article i. nini isa a húkum. amayka adun uttuntuta a duwa a taw atawa i ya tigu sakataw tamúkku inín ya manum tigu sakataw tamúkku inín, i ya bunárun su uppákakámal kanu tamuk sarta ussápanin. amáyka silandun a duwa kataw uppákakámal kanu tamuk sapan silan a duwa kataw; amayka ussápa silan a duwa kataw badun sakanilan su tamuk sapapagíssanun. amayka ya bu ussápa su sakataw ya bu makákwa kanu tamuk su ussápa salkanín su tamuk. hatta wal-lahu alam. article ii. nini isa a húkum. anunu sumu´mbay su isa a taw kanu pudin unggu dun mádadag su sinumbayan, báliwanan dun kanu háraganin. píssan rinámpas su sinu´mbayan u kanu sinumu´mbay báliwanan dun kanu háraganin unggu úmanan sa undáwi (ndáwi) kapatúta kaúmanun kanu tamuk u nádadag. hatta tamat al-lahu alam. article iii. nini isa a húkum. anúnu sumu´mbay su isa ataw kanu pudin sapárati patuk atawa tambuku unggu dun matupud su patukatawa mágbang atawa mádagag su tambuku, amayka ya katupudu patuk atawa ya, kakbángu patuk atawa ya kadádagu tambuku su átagu kina-su´mbayninún unggu dikna táksir su sinumu´mbay dili kabáliwanán su sinumbayan. amayka sin itímbas su patuk sa átaga ig atawa sin itímbas kanu sápun a tamlang undu dili íktan su patuk unggu dun mádadag disadíli baliwanan dunu sinumumbay su sinumbaynin. tamat wal-lahu alam. article iv. nini isa a húkum. anunu malidu duwa kataw i ya, tigu sakataw su utángku nábayadángku dun, i ya manum tigu sakataw dalaka makabáyad, amayka dala sáksi nu duwa kataw bunárun su panúntut sarta ussápanin; amayka dili ussápa, i ya bunárun su pudtuntutan. tamat wal-lahu alam. article v. nini isa a húkum. anunu itágunu isa ataw su tamukin kanu púdin, máwli nggu dun kuwánu (kwánu) tinumágu su tamukin, i ya tigu tinágwan kinwanungka dun atawa ya nin tig nádadag, amayka dala saksi nilan a duwa kataw ya bunár su tinágwan sarta ussápanin. tamat wal-lahu alam. article vi. nini isa a húkum. anunu su támuku taw a nadagag sábap sa natágakin nggu dun matunu isa a taw nggu nin dun itábun, mawli nggu dun maylaynu ugkwan kanu támuk i ya nin tig támuku inín a natagákku, i ya tigu nakatun dikna nungka tamuk dan dun a tamuku; amayka adun saksi kanu tamuk a natun a dikna tamuk a dan dun sabap sa támuk a natun, yuli su tamuk sarta úmanan su undáwi kapatútin, isa a dúdan atawa duwa a dúdan. tamat wal-lahu alam. article vii. nini isa a húkum. anunu rinámpas su támuku taw wájib i yulinu rinumámpas sarta úmanan sa kiira kiranu gúnanin kanu kínarámpasun. tamat wal-lahu alam. article viii. nini isa a húkum. anunu mánik su taw kanu walaynu salakáw sálkanin a dikna kiyúgu ugkwan kanu walay unggu dun malipungu't su gkwan kanu walay, amayka mágabi masála su minánik sa pata dúdan. tamat wal-lahu alam. sulu codes the principal sulu code this code was prepared by sultan jamalu-l-a'lam and was used without any modification by sultan harun. the present sultan's minister, hajji butu abdul-baqi, has made a new code which has just been proclaimed, but which has not yet met with general approval. this copy of the old sulu code is the original which was used by the sultan jamalu-l-a'lam himself, and also by sultan harun. it was written by asmawil, the chief clerk and minister of jamalu-l-a'lam. the manuscript was secured from sheikh mustafa, former minister to sultan harun. this code differs considerably from the former one used by sultan pulalun, the father of jamalu-l-a'lam, which was more in conformity with the letter of the quran, much more severe in its sentences; hence the change was welcomed. introduction this book is a guide for the proper execution of the duties of office in accordance with the law and rules of the country. it is concurred in by all, and is promulgated with the general consent of all the datus, panglima, and subordinate officers of state. this on sunday, the fourth day of the month rabi' akir, in the year dal akir, which corresponds to the year 1295 a. h. may it enhance the good and the prosperity of our country; and may god give blessing and peace to its author. the code article i section 1. whoever shall abduct the child of a free man, and be found out, shall be fined twenty rolls or pieces (gajahilaw) of calico (siddip) or its value. [15] the abductor shall return the child. a bail also is required which shall be equal in character and value to the abducted child. sec. 2. if the abductor of a free person is a slave, the master of the slave shall be examined to find out whether or not the abduction was committed with his knowledge and consent. in case he says that it was done without his knowledge and consent he must be sworn on the quran. but, though he swears to that effect, he shall be held responsible for the return of the abducted person. then if the actual abductor or abductors do not return the person or persons abducted, he or they shall be taken in payment thereof. but if the master of the slave does not swear to that effect, he shall be held responsible personally for the abduction, and the case shall be treated as a case of abduction by a free man. the condition of the slave, whether privileged to live independently or not, does not affect this decision. article ii section 1. (a) if property of any kind of the sultan is stolen, the thief shall be fined fifty pieces (gajahilaw) of calico. (b) if property of datus with official titles or that of twan sarip usman is stolen, the thief shall be fined thirty-five pieces of calico. (c) if datus without official title or descendants of a sarip or of panglima adaq are robbed, the thief shall be fined thirty pieces of calico. (d) if ministers of state or panglima pihaq are robbed, the thief shall be fined twenty-five pieces of calico. (e) if subordinate officers below the panglima [16] or inland country pandita or the agents of the sultan or panglima are robbed, the thief shall be fined twenty pieces of calico. (f) if children of subordinate rulers or chiefs are robbed, the thief shall be fined ten pieces of calico. sec. 2. (a) theft of small articles (petit larceny) such as articles of diet, etc., of the value of one piece or half of a kusta or sarong, shall not be punished by fines, but the articles themselves shall be restored to the proper owner or owners, twofold, and the thief shall suffer fifty lashes; if the theft is repeated on two or three occasions, the offense shall then be regarded as a case of great theft. (b) theft of property of the value of one kusta and over is great theft (grand larceny) and shall be punished by fine as provided in section one: provided further, that the articles of property stolen shall be restored to the owner or owners thereof, and the thief shall suffer one hundred lashes. the fine shall be divided between the person robbed and the governor (the chief usually acts as judge), in the following manner: when no trial shall have been held, the robbed party shall receive seven parts and the governor three parts; if a trial is held, the fine shall be divided equally between the governor and the party robbed, whether he be a person of rank or otherwise. (c) if the thief is a great or noted person or a governor, the fine shall be doubled. (d) the same penalty shall be applied to all persons convicted of theft, whether male or female. (e) in all cases of theft the stolen property shall be restored to the owner or owners thereof. (f) the buyer of stolen property shall be regarded as a thief unless he proves the truth of the sale in the presence of the governor. if he fails to have the seller examined and brought before the governor, he shall be regarded as a partner in the theft. article iii section 1. a false claim to property or debt shall be regarded as theft and shall be adjudicated accordingly. article iv section 1. whoever exacts a claim by force without the permission or direction of the governor shall return whatever he exacts and forfeit his claim; and in case the claim is not substantiated he shall return the exacted object, and shall be fined two pieces of calico, to be equally divided between the governor and the person from whom he has exacted. article v section 1. complainants who disagree upon the authority before which they should appear shall come to a panglima. in case they do not agree upon a panglima they must come to the sultan. but in case they agree, it is preferable that they should appear before the local governor or authority. article vi section 1. whoever attempts to kill and kills a freeman shall be fined fifty pieces of calico as blood money, also twenty gajahilaw to be paid to the governor. whoever attempts to kill, but fails to kill, a freeman shall be fined twenty-five pieces of calico, to be paid to the attacked party, and ten gajahilaw to be paid to the governor. cases of unintentional and accidental killing and cases where the killing is done by an undetermined party shall be regarded alike. the blood money in each case shall be thirty gajahilaw. note.--in case a murder occurs in a neighborhood or village, and the actual murderer is unknown, the blood money is paid by the people of that neighborhood or village. they pay the full amount of blood money in case they do not swear to the effect that they did not commit the murder, but in case they swear to that effect they pay only half the fine. article vii section 1. the fine for marriage by abduction [17] shall be six pieces of calico and the woman's dower [18] shall be doubled. in case the dower is expressed in terms of slaves, the value of the slave shall be considered equal to four pieces or gajahilaw. the price of the bride, usually paid to the parents of the woman, in ounces of gold, called in sulu basing, will be paid at the rate of one gajahilaw for a basing. the governor's share of the fine shall be four gajahilaw. sec. 2. the fine for elopement is four gajahilaw and the dower shall not be doubled. the slave's rate of exchange shall be four gajahilaw in case it is the custom of her family to receive actual slaves as a dower. the basing's rate of exchange is one gajahilaw. in case the slave dower is nominal, the slave's rate of exchange shall be three gajahilaw of calico, and the basing one piece of kusta, of low grade. sec. 3. in case of seduction admitted or disguised, marriage shall be concluded if the woman requests it. the man shall be fined two gajahilaw and the woman shall be treated as if she eloped. in cases of actual slave dowers, the slave's rate shall be four gajahilaw and the basing one gajahilaw. in cases of nominal slave dower, the slave's rate shall be three gajahilaw and the basing's one piece of kusta of the low grade. sec. 4. compulsory marriage is treated as marriage by abduction. sec. 5. (a) if adultery is committed with a panglima's wife, the man shall be fined fifty gajahilaw, which can not be exchanged with anything except gold, silver, brass drums, or lantaka. if unable to pay, the man himself shall become the property of the panglima. [19] (b) if adultery is committed with the wife of a maharaja pahlawan, [20] the man shall be fined forty gajahilaw; which can not be exchanged except as in the previous case. (c) if adultery is committed with the wife of a subordinate officer of state or a country pandita, or an agent of a governor, the man shall pay a fine of thirty gajahilaw, unexchangeable except as in section five (a). (d) if adultery is committed with the wife of a pandita who is in the council or in the capital of the sultan, the man shall pay forty gajahilaw. (e) if adultery is committed with any married woman, the man shall pay a fine of twenty gajahilaw, unexchangeable except as in section five (a). (f) if a married woman commits adultery with her own consent, she becomes a slave to her husband; but if it is compulsory and without her consent, she will not be subjected to slavery; it is her duty then to tell her husband or his nearest relatives of the fact at the earliest opportunity--the next morning in case it occurs at night. (g) if a male slave commits adultery with a free married woman, the slave becomes the property of the husband of that woman. (h) if a free man commits adultery with a married female slave, the decision will be the same as if the crime had been committed with a free married woman. (i) if a male slave commits adultery with a married female slave against her consent, the male slave becomes the property of the master of the married female slave; but if the crime is committed with her consent, she becomes the property of the master of her husband. her master pays the fine due the governor. (j) if a man commits adultery with the sister of his wife, his wife not being divorced, he will be judged as if he had committed adultery with the wife of another man. all the subordinate officers [21] of state are hereby requested to exercise all care in administering justice to all who come to them for judgment and decision. they should all adhere to the seven articles of mohammedan law and be deliberate in their just application. in case any complainant appeals to one of you from the decision of another authority, do not accept the appellant's statement and render your decision unless you inquire well about the case from the previous authority who judged it. in case you find the decision of that authority wrong do not be ready and quick to blame him and criticise him, but try to act in conformity and union. in case you find his decision right, notwithstanding the appellant's complaints, bring both the appellant and the appellee to the panglima. if the panglima can not render a solution, he should bring them to the sultan, together with the authority from whose decision the appeal was made and the authority to whom the appeal was made. if the governor or the authority to whom they appeal does not investigate or inquire about the case from the governor from whom they have appealed, his decision shall be null and void. any person who exercises the right to judge without authority from the sultan shall be fined one male slave. all governors and their subjects ought to abide by and aid in carrying out all the articles of this code. any person who does not fulfill this duty will have all the curses and the calamities of this world and the world to come that befall the man who swears falsely by the thirty parts of the quran. the new sulu code the new code is a rearrangement of the old code with some changes and modifications. its author is hajji butu abdu-l-baqi, the present prime minister or adviser of the sultan jamalu-l-kiram the second. it was issued in the latter part of 1902, but there has been so much objection to it on the part of many datus and chiefs that its general adoption seems impossible. for a sulu hajji butu is a man of talent and understanding. he knows some arabic and is probably the best sulu scholar in the archipelago. this code greatly increases the fines exacted from the people, creates a treasury under the control of hajji butu, and entitles the sultan to a share of the fines collected by the various datus and chiefs. the chiefs and the people look upon it as another form of unjust taxation. the opposition to its adoption is so strong and so bitter that nothing except force of arms can enforce its use. this is beyond the power of the present sultan. introduction this book is a guide to the proper execution of the duties of office in accordance with the law and the rules of the country. it is concurred in by all and is promulgated with the general consent of all datus, ministers, panglima, and subordinate officers of state. may god enhance by it the good and prosperity of our country. this at 9 o'clock, saturday, the 11th of the month jul kaidat of the year b, which corresponds to the year 1320 a. h. this is to proclaim hereby the decrees of padukka mahasari mawlana hajji mohammed jamalu-l-kiram. the subjects discussed in the following articles are, first, theft; second, murder; third, adultery; fourth, opprobrium; fifth, cases arising from unwitnessed purchase; sixth, false claims; seventh, unlawful or unauthorized exactions; eighth, debt; ninth, finds; tenth, unjust actions and decisions. to every crime or misdemeanor which comes under these articles a fine is attached, differing according to the nature and the degree of the crime. the code article i section 1. the thief shall be fined seventy pesos, no matter what he steals. the fine shall always be seventy pesos irrespective of the person robbed, be he low or high in rank. the manner in which the fine shall be divided between the person robbed and the treasury differs. (a) if the sultan's property is stolen, fifty pesos shall go to the sultan and twenty pesos to the treasury. (b) if datus with official titles or twan habib mura are robbed, forty pesos shall go to the person robbed and thirty pesos shall go to the treasury. (c) if other datus or twan hajji butu or a descendant of a sarip are robbed, thirty-five pesos shall be paid to the person robbed and thirty-five to the treasury. (d) if a minister of rank and official title or a hajji in the council of the sultan is robbed, thirty pesos shall be paid to the person robbed and forty pesos to the treasury. (e) if a minister of rank without any official title or a panglima pihaq [22] or a pandita of the capital is robbed, twenty-five pesos shall be paid to the person robbed and forty-five to the treasury. (f) if a subordinate officer of state or an agent of the sultan or a country pandita is robbed, twenty pesos shall be paid to the person robbed and fifty to the treasury. (g) if a common person is robbed, fifteen pesos shall be paid to him and fifty-five to the treasury. (h) the thefts referred to above include cattle, slaves, and every article of value. sec. 2. (a) if a free person is abducted, the fine shall be divided equally between his agnate and cognate heirs and the treasury. (b) the abducted person should be returned. no one except the child or wife of the abductor, in case the abductor is a free man, can be substituted for the abducted person. (c) if a free person is abducted by a slave, the master of the slave will be held responsible. if the abducted person is not returned, the abducting party, whether one person or many, will be taken instead. (d) small thefts below the value of one peso shall not be punishable by fines. the stolen object shall be returned twofold and the thief shall suffer fifty lashes. article ii section 1. murder is of four kinds--the first is intentional; the second, semiintentional; the third is accidental; the fourth, murder committed by a crowd. sec. 2. the fine for intentional murder shall be one hundred and five pesos; seventy for the agnate and cognate heirs of the murdered person and thirty-five for the treasury. sec. 3. an attempt to kill that does not result in death shall be punished by a fine of fifty-two pesos and a half; thirty-four pesos and a half shall be paid to the near relatives of the attacked or injured person and eighteen pesos shall be paid to the treasury. sec. 4. all cases of semiintentional and of accidental murder and cases of murder committed by a crowd shall be treated alike and fined equally. the fine shall be fifty-two pesos and a half; thirty-four pesos and a half shall be paid to the heirs of the murdered person and eighteen pesos to the treasury. sec. 5. if more than one person is killed, one hundred and five pesos shall be paid for each person killed as his blood money. article iii immoral conduct section 1. if a married woman commits adultery, she shall become the slave of her husband, and the guilty man shall pay a fine of one hundred pesos to the treasury, and in case he can not pay that sum he shall become a slave himself. sec. 2. if a married woman is simply guilty of immoral conduct, such as a kiss or an embrace with another man, and quickly reports the facts to her husband or his immediate relatives, her conduct will then be regarded as compulsory and she will not be liable to any punishment; but the man shall be liable to a fine of one hundred pesos, half of which shall be paid to the husband of the woman and the other half to the treasury. sec. 3. the abduction of a woman and cases of compulsory marriage shall be treated alike. the guilty man shall pay a fine of fifty pesos, out of which the treasury shall receive twenty pesos. the woman's dower under such circumstances will be like that of her mother, and nothing else of the usual formalities shall be given to her people. sec. 4. in cases of seduction, admitted or inferred by the woman's request to marry the man, both man and woman shall be fined. the man shall pay a fine of fifty pesos, twenty of which shall be paid to the treasury, and the woman shall pay a fine of ten pesos to the treasury. sec. 5. cases of elopement are considered as seduction, though there be no actual sexual intercourse between the man and the woman, because elopement occurs by the mutual consent of both parties. sec. 6. (a) in case a woman was regularly engaged and has lost her virginity, her dower and her basingan (the bridal price expressed in ounces of gold, and paid to the parents of the bride) and all other gifts shall be returned to her husband. the expenses of the marriage, as of rice and meat, etc., shall not be paid back. (b) but in case a woman who has lost her virginity is abducted or married by compulsion, the husband shall forfeit all claim to her dower or her basingan, etc. sec. 7. (a) if a male slave commits adultery with a married free woman, he becomes the slave of her husband. (b) if a free man commits adultery with a married slave woman, he becomes the slave of her husband. (c) if a male slave commits adultery with a married female slave, he becomes the property of her master. (d) cases of seduction or marriage between slaves, in which the woman is a maid, shall be treated the same as if they were free persons, except that the fines shall be half as much. article iv opprobrium section 1. an adult who insults, abuses, defames, or slanders another adult, without any provocation or in a way that is inappropriate to the guilt committed, shall, if brought to trial, be fined ten pesos. sec. 2. children who commit the aforesaid offense are not liable to trial. sec. 3. if in such cases an adult interferes with children and hurts a child, he shall compensate for the harm done. sec. 4. if in such cases an adult interferes with children and he hurts himself, he forfeits all claim for compensation. sec. 5. women who commit the same offense shall, as in the case of children, not be liable to trial. article v trade and exchange section 1. under this article is included the sale or exchange of slaves, cattle, arms, and all commodities. sec. 2. whoever trades or exchanges without the knowledge and the authorization of the governor or his representative shall be fined seventy pesos. each party to a sale or exchange, no matter what the rank of the person may be, shall pay the fine. all of the fine shall go to the treasury. sec. 3. to buy a stolen article is the same as to steal it. article vi false claim section 1. a false charge, a false claim of debt, and a false complaint or suit shall be regarded as cases of robbery. article vii unlawful exactions section 1. whoever exacts or enforces a claim without either the permission or the advice of the governor shall forfeit that claim and all rights to a just trial of the case. sec. 2. if a person fails to respect or disobeys the advice or decision of the governor, he shall forfeit his right to the contested object. sec. 3. if a person is not sure of the exact amount of the claim he exacts, he shall forfeit his right, and shall return the amount exacted, and pay a fine of ten pesos, to be divided equally between the governor and the treasury. sec. 4. (a) if a fight starts unexpectedly between two parties and results in harm to a third noncombatant party, the combatants shall be held equally responsible for the harm. (b) if the harm in the above case amounts to death, both combatants shall be liable for the blood money and the crime shall be regarded as intentional murder. (c) if harm in the same case falls short of death, the combatants shall be liable for half the blood money and a fine of twenty pesos, to be paid to the treasury. sec. 5. whoever attacks or invades the house of another without the permission of the governor and causes the death of another party shall be guilty of intentional murder and shall be liable for the blood money of the person killed and a fine of twenty pesos to the treasury. sec. 6. (a) if in the above case the attacking party is killed the blood money shall be forfeited. (b) if the attacking party is only injured, he shall be liable to a fine of twenty pesos and shall pay for all that is lost or destroyed by reason of his attack. (c) if the attacking party is multiple, each person shall be liable to a fine of twenty pesos, no matter how many they may be, but the damage done shall be compensated for by the leader or instigator of the attack alone. article viii debt section 1. the creditor shall ask and investigate about the debtor from those who know him and shall also inform the heirs of the debtor concerning the debt to be contracted, for in case the debt is contracted without the knowledge of the heirs and the debtor dies the heirs shall not be held responsible for the payment of the debt. sec. 2. in case the debtor dies and leaves property inheritance and wives and children, his debt shall be paid from that inheritance. sec. 3. a debt is void unless it is called for before the lapse of three years in case both debtor and creditor live in the same town. this shall not hold true in case they live in two different towns, especially when they are separated by sea. article ix finds section 1. the finder of any property, whether it be a horse or head of cattle, or a runaway slave, or any forgotten or fallen article, shall be rewarded, no matter who finds it. sec. 2. the customary reward for a find is at the rate of one cent for every dollar's worth of the find. sec. 3. in case the find is made within the limits of the town and belongs to a member of the same party, it shall be returned without any reward. sec. 4. any person who makes a find shall make it known to the public, or bring it to the governor, or return it to its owner. if this is not done, and the find is not submitted to the governor within seven days, the case shall be regarded as robbery and the finder shall be fined seventy pesos, to be paid to the treasury. the same rule shall govern similar cases that occur out in the country or on the sea, except that the fine shall be equally divided between the governor and the treasury. the share that belongs to the treasury shall be intrusted to the governor for safe-keeping and future payment to the treasury. any dishonesty committed in this matter will be a sin that results in loss both in this world and in the world to come. article x all subordinate officers of state are hereby enjoined to exercise all care and justice in their judgments and to adhere with all devotion to the seven articles of mohammedan law. in case any complainant appeals to one of you from the decision of another authority, do not accept the appellant's statement and render your decision without inquiring well about the case from the previous authority who judged it. in case you find the decision of that authority wrong, do not be ready and quick to blame and criticise him, but try to act in conformity and union. in case you find his decision right, bring both the appellant and the appellee to the panglima. if the panglima does not furnish a solution, he shall bring them to the sultan, together with the authority from whose decision the appeal was made and the authority to whom the appeal was made. if the authority to whom they appeal does not investigate or inquire from the authority from whom they have appealed, his decision shall be null and void. any person who exercises the right to judge without authority from the sultan shall be fined one male unmarried slave. all governors and their subjects shall abide by and aid in carrying out all the articles and provisions of this code. any person who does not fulfill this duty will have all the curses and the calamities of this world and of the world to come that befall the man who swears falsely by the thirty parts of the quran. chapter iii two sulu orations the sulu oration for the feast of ramadan (written in the six semicircles) praise be to god. glory be to god. there is no god but god. god is almighty this oration was finished at noon, friday, the 29th of rabi-el-akhir, in the year 1321 hejira. in the name of god the compassionate and merciful. god is greatest. god is exalted. he is the master of the world and the king of the universe who rules with conquering power. invisible to the eye, he is visible through his power and might. his is all the power and glory. his is all kindness and glory. he is the almighty and the ruler of all. he is everlasting and never dies. there is no god but he. everything vanishes but the face of god. he is our governor, and to him all shall return. before him the learned men are humiliated; and the mighty humble themselves in his presence. all the prophets have spoken of his lordship; and all the men of old have borne witness to his unity. all the men of learning have spoken of his eternal being. the wise men are unable to give an adequate description of his attributes. all that is in the earth and the heavens acknowledge his worship, and praise him day and night without ceasing. god is greatest. he is the lord of lords and the liberator of the world. he inspired the book and commands the clouds. he overcomes all difficulties. he is the cause of all causes. he opens all doors and answers all who call him. the lord has said, "call me, and i shall answer you. all who despise my worship shall enter hell." god is almighty. all the heavens praise him. the sandy deserts, the shades and all darkness, on the right and on the left, praise him morning and night. there is nothing that does not sing his praises; but you can not understand their praises. oh, how kind and forgiving he is! god is almighty. all the angels praise him. the heavens, the earth, the mountains and hills, and all the birds praise him. praise and glory be to thee, o lord. thou art the lord of indescribable might and honor. peace be to the missionaries, and praise to god, the lord of the universe. here the orator shall repeat, "god is almighty," seven times, then say the following: god is almighty. praise be to god, the god of kindness and of grace, who ordained that the faithful should observe the month of fasting and gave them at the end thereof a feast, to all whether near or far, in token of his hospitality and generosity. let us praise him always. he is righteous and all sacredness. the king of the universe, land and sea. he ordained for the mohammedans the two feasts, ramadan and that of the sacrifice. i bear witness that there is but one god, who is alone without a partner. he made the two feasts for the observance of all mohammedans and the time of their celebration the greatest season of the year. i testify that mohammed is his servant and apostle. god bless mohammed at all times and through all ages. oh, you people, fear god. may god have mercy on you fellow-mohammedans and brothers in the faith. he has sent down to you this exalting and magnifying day as an expression of his generosity and hospitality. on this day he permits you to feast and forbids you to fast. respectful observance of this day is pleasing to god and he who so observes it shall be greatly blessed. charity on this day is highly acceptable. all you ask on this day shall be given you. on this day every call is answered. the prophet, god bless him, said, "on this day give charity for everyone, male and female, for every free man, for every slave, for the young, and for the old give a measure of flour or a measure of dates, a measure of rice, a measure of raisins, or a measure of barley, or whatever you eat on this day give as charity for all the people who are of your religion, of your nation and under your law. this will atone for your sins and all your misdeeds during the days of fasting." the prophet, god bless him, has said, "he who fasts the month of ramadan and withholds his measure of charity on the feast day, his fasting shall not be acceptable to god, and he shall not reach heaven, but shall be stopped halfway between earth and heaven." the prophet said, "he who fasts the month of ramadan and follows it with six days of shawal shall be regarded as if he had fasted forever." may god make us successful and honest and enlist us in the ranks of his faithful followers. the best of all speech is the word of god, the all-knowing king, the exalted and the respected. god himself, whose word is perfect truth, said, "when the quran is read, listen to it with attention, that ye may obtain mercy." when the quran is read, ask refuge in god from the accursed devil. jesus, the son of mary, said, "god our lord, send us a table from heaven that we may all, from the first to the last, feast thereon." be thou generous to us for thou art the best of all givers. exalted is god the true king. there is no god but god, the lord of the great throne. he who calls another god whose deity he can not prove shall render account to the lord his god. infidels can not succeed. say my lord, forgive me, and have mercy upon me. thou art most merciful. he who may deliver this oration shall here repeat the chapter of the salvation, after which he shall rise and read the following oration twice, and shall say, "god is almighty," seven times: god is almighty. praise be to god, whose praise is exalted and glorious. i testify that there is no god but god, and that he is alone and has no partner. i bear witness that mohammed is his servant and apostle, and the bright light of the world. may god bless mohammed and all his people and descendants. oh, ye people, depart from evil and draw near to good. avoid excess and ye shall be happy. god and his angels bless the prophet. ye who have faith bless him also. ye servants of god answer his call, and bless him through whom god has directed you. o god, bless mohammed and his descendants, for he has directed us to paradise and the roads that lead thereto. o god, bless mohammed and his descendants because he warned us of the fire and its evils. o god, forgive his followers, and his caliphs abu-bakar, omar, othman, ali, talhat, zubayr, abdu-r-rahman the son of awf, sa'din saidin, and abi ubaydat, because they are the princes of the faithful and the best of all people. o god, forgive all other followers and friends of your prophet, and all who follow them. be kind to them in the day of judgment. give them and us mercy, for thou art most merciful. o god, perpetuate the power and the victories and the conquests of him whom thou hast chosen for the administration and good management of temporal affairs and religion; he who beseeches the intercession of the faithful prophet, our master, the sultan mohammed pudhalun, the son of the late sultan mohammed jamalu-l-kiram, and the sultan, the master, and the noble whom thou hast chosen, sultan esh-sharifu-l-hashim, the kindled light of god; and our thoughtful and wise master the late sultan kamalu-d-din; and protect the kind and generous late sultan alawa-d-din, whose descendants became the kings of the sulu country. protect the champion of the mohammedan religion and faith, the late sultan amirul umara, and the late sultan shah muizzu-l-mutawadhi-in. protect the power of the generous and victorious late sultan shah nasiru-d-din the first. defend the conqueror, the late sultan shah mohammed el halim; defend the intelligent late sultan batara shah; protect the noble late sultan muwalli el wasit shah; aid our great master, the excellent and powerful and the victorious on land and sea, the sultan shah nasiru-d-din the last; aid the just and honorable and ascetic master, the late sultan shah salahu-d-din. o god, support islam and all mohammedans. fight against atheism and heresy and evil, the enemies of religion. aid the ever-victorious sultan ali shah, the great and most superior sultan; sultan of the land and sea; and his heir, the late sultan shah shahabu-d-din mohammed, who was versed in law and all learning; and the late sultan shah shafi-d-din mohammed mustafa, the best of all things. defend the late sultan and wise governor shah badaru-d-din mohammed, the victorious. may god perpetuate on earth his power, and his kingdom, and his justice. o god, support the late sultan nasaru-d-din, the victorious, the administrator, and the able supporter of our religion; the late sultan alimu-d-din the first, mohammed, the prince of the faithful, the seeker of god's mercy; and the obedient to his will; the late sultan shah muizzi-d-din mohammed, the emigrant, the learned, the truthful, and the generous; the late patient sultan shah mohammed israyil; the late sultan shah alimu-d-din the second, mohammed, the peaceful, the chosen, and the powerful; the late sultan shah sharafu-d-din mohammed, the merciful, seeker of knowledge, and doer of good deeds; the late noble sultan shah alimu-d-din the third, mohammed; the late sultan shah aliu-d-din mohammed, the great and victorious; the late sultan shah shakira-l-lah mohammed, conqueror of atheism and heresy, who was versed in mohammedanism and monotheism; the late sultan shah jamalu-l-kiram mohammed, the kind and the wise and beloved of his people, master of truth and good, whom god alone prevented from making the pilgrimage to the house, and who was patient, lenient, and good, who encouraged good deeds and forbade evil, and who was good in his administration. may god perpetuate his kingdom, his power, his justice, and his kindness. may god forgive him and his forefathers and be good to all of them and give them a place in paradise. o god, aid all who befriend him; be the enemy of all his enemies; uphold all who uphold him; reject those who reject him; and vanquish those who may vanquish him. be thou his help and aid, and use him as a sword of vengeance against all offenders. thou art my god, the god of truth and lord of the universe. o god, set right our leaders and our nation, our judges, our rulers, our learned men, our lawgivers, our wise men, and our old men. aid them in righteousness, and guide us. o god, destroy the enemies of our religion and unite the hearts of the faithful. free the captives and pay the debts of the debtors. relieve the distressed and forgive the living and the dead. god grant peace and safety to us and to the pilgrims and to the travelers on land and on sea who are of the people of mohammed, for thou art the most powerful, the best master and the best helper. o god, drive away famine and distress, and disease, and iniquity, and oppression, and all calamities, and all evils outward and secret that may exist in our country especially and the countries of the mohammedans in general, for thou hast power over everything. our lord, forgive us and forgive our brothers who preceded us in the faith, and cast away from our hearts all jealousies and ill feeling toward the faithful. o god, our lord, thou art kind and gracious and generous and compassionate and able to forgive. this was written by the poor and humble pilgrim hajji abdu-l-baqi, who hopes for forgiveness from the forgiving lord and who was the son of twan hatib jawari, a native of sulug and follower of shafi'i and ash'ari. may god forgive them and all mohammedans and all the faithful. amen. the sulu friday oration in the name of god the compassionate and merciful. to god be all the praise and glory. there is no other god but god this i repeat a thousand times more than others. god is greater, far greater, than he is thought to be. i testify that there is no god but god alone. god is one, and only one. he has no partner. god is the owner of the heavens and the earth and all that is therein. god is owner of all. i testify that mohammed is his servant and his apostle, sent by him to guide all people to the true religion, and that his religion may thereby be exalted above all others, though the unfaithful and the worshipers of many gods may reject it. we ask thee, o god, to bless mohammed and all his descendants and bestow on them all the blessings that can be named and all the blessings that can be forgotten. i advise ye, o people, and myself, servants of god, with fear of god which is the sign of faith and god's command to us all. fellow-mohammedans, the mercy of god be upon you. friday is the chief of all days. the apostle of god said: "the day friday is the chief of all days." it is greater than the day of ramadan and the day of el-adha and the day of ashura. charity on friday is preferable to all charity. good deeds done on friday are preferable to all good deeds, and evil done on friday is the greatest evil that can be done. the noblest and best men have testified to its greatness over other days. it is the beauty of all days and years. it is a pilgrimage that the poor can make once every seven days. its observance intercedes for the offender before the king of unbounded knowledge. it has been told of the chosen prophet that he said: "god registers the name of the person who leaves out three successive fridays, on a tablet on which he keeps the number of liars." the prophet said that he who leaves out three successive fridays shall have written on his forehead when the day of judgment comes: "he has no hope of the mercy of god." may god bless us and give us all peace. may it be that god has declared us among the successful and the faithful and enlisted us into the number of his good servants. the best of all utterances and constitutions are in the word of god, king of unbounded knowledge, possessor of glory and of all reverence. it is god the highest who speaks and who is the truest of all speakers. when the quran is read you should listen attentively so that you may obtain mercy. he said, and his saying is most precious and full of wisdom, "when you read the quran ask god's help against the accursed satan." i take refuge in god the all hearing and all knowing from the accursed satan. oh, ye who have believed, when you hear the call for prayers on friday go ye to hear god's word. leave your business, for you have a greater good and benefit in this. may god bless the great quran for us, and may he benefit us through its texts and the wise mention of his name. may he reward us all with mercy from the painful punishment. i command you, and myself, with what god demands for good obedience so that you may obey him. and i prohibit you from doing evil and from disobedience as he prohibits you so that you may not disobey him. i pray for the plentiful reward of god for you and for myself, so that you may seek him; and i ask the pardon and forgiveness of god for you and for myself and for all the faithful mohammedans for he is gracious and forgiving. praise be to god. i praise and exalt god with all my strength and i testify that, there is no god but god. god is one and only one. god has no partner. he knows all and has good news for you all. i testify that mohammed is the servant of god and his apostle, and a shining light to the world. we ask thee, o god, to bless mohammed and his people and descendants because he is our preacher and warner. to ye, oh, people, i say, fear god, draw near to good, and depart from evil. god and all his angels bless the prophet. all ye believers bless him, too. ye servants of god, obey the call of god, and bless him who directed you to god. we ask thee, o god, to bless mohammed and the people of mohammed, for he directed us to paradise and to the roads that lead thereto. we ask thee, o god, to bless mohammed and the descendants of mohammed, because he warned us of the fire and its destruction. we ask thee, o god, to bless mohammed because he conquered the kings of the infidels and their empires. we ask thee, o god, to forgive his followers and his successors, abu bakar, omar, othman, ali, abi ubaydat, for they are the princes of the faithful and the best of all people. we ask thee, o god, to forgive his two sons, hasan and husein, and his two noble uncles, hamzat and abbas; and mayst thou be kind to all the emigrants and all the allies and followers till the judgment day, that we may share thy mercy with them and through them, for thou art most merciful. we ask thee, o god, to perpetuate the power, the victory, and the valor of those whom thou hast chosen for the good administration and good conduct of our religious and worldly affairs, chief among whom is he who begs the intercession of the faithful prophet, our master, the sultan and the pilgrim, mohammed jamalu-l-kiram, the brother of the late sultan, the pilgrim mohammed badaru-d-din the second, both of whom made the pilgrimage to the house al-haraam. may god give them a place with the faithful. they are the children of the late sultan mohammed jamalu-l-a'lam. may god perpetuate his kingdom and his power, and his justice and kindness. and may god forgive his predecessors and his grandfathers and be good to them and give them a place in paradise. we ask thee, o god, to be friendly with those who are friendly with him, and to antagonize them who are against him; give victory to those who aid him; reject those who reject him; vanquish those who disobey him, and be his help and helper and make him thy sword of vengeance against the offender. o god, my god, thou art truth and the lord of the universe. o god, set right our leaders and our nation, our judges, our rulers, our learned men, our lawgivers, our wise men, and our old men. aid them in righteousness, and guide us. o god, destroy the enemies of our religion and unite the hearts of the faithful. free the captives and pay the debts of the debtors. relieve the distressed and forgive the living and the dead. god grant peace and safety to us and to the pilgrims and to the travelers on land and on sea who are of the people of mohammed, for thou art the most powerful, the best master and the best helper. o god, drive away famine and distress, and disease and iniquity, and oppression, and all calamities, and all evils outward and secret that may exist in our country especially and in the countries of the mohammedans in general, for thou hast power over everything. our lord, forgive us and forgive our brothers who preceded us in the faith, and cast away from our hearts all jealousies and ill feeling toward the faithful. o god, our lord, thou art kind and gracious and generous and compassionate and able to forgive. notes [1] throughout this paper foreign words which do not often appear in an english text are given the same form for both singular and plural. [2] mindanao, magindanao, and a few other words with the same terminal sound are written in this paper with the final "ao" because they are well-known words. other words ending with the same sound are written with the final "aw," in accordance with the author's rules for transliteration.--[editor.] [3] the word kabalalan means the place of the rattan, because the rattan plant used to grow abundantly on the mountain and its base. [4] this word may be a corruption of the name of the bird rock or rokh, mentioned in the arabian nights. [5] this word is a corruption of the arabic word thul-fakar, the name of the famous sword of the caliph ali. ali was a noted warrior. [6] the translation here omits the formal words and repetitions and simply gives the names of the descendants in order. [7] sarip and sharif are both in common use and have the same meaning. the latter is the arabic form of the word. [8] it will be noticed both here and elsewhere that the genealogies are confused and that often it is not possible to make out in the text the descent of a given individual. in explanation of this confusion the translator says: "the moros do not know any better. this is the way they write. no attempt was made in the translation to change the order of the original text."--[editor.] [9] it is not clear in moro who the parents were. these are chosen pursuant to the general rule that the pronoun refers to the nearest noun, unless otherwise indicated. [10] the malay version said three people, but mentions only the above two, akmad and sapak. [11] see pls. i-iv. this manuscript is purely magindanao in its style and is the oldest copy that i have seen. the main text is a little inferior to that of datu mastura's copy, but its marginal arabic quotations are more nearly correct and better written. the spelling and the grammar differ in many places, but the general sense of the text is mainly the same and does not warrant a separate translation. [12] this copy is in the possession of the ethnological survey. it is not reproduced here because of the expense of half-tone work--the only satisfactory method of reproduction in this case. [13] by a full uncle is meant a brother of one's father or mother who had both the same father and the same mother as one's own father or mother, as distinguished from a half uncle; so of a full aunt. [14] these fines are stated in mexican currency. the peso was worth about 50 cents, united states currency. [15] the gajahilaw of siddip or piece of calico used is worth 1.50 pesos. it used to be the rule to demand the son of the abductor as bail for the return of the abducted free child or person. [16] the words panglima and pandita are used in a plural sense in this paragraph. [17] abduction and elopement are regarded as crimes by the sulus. the consent of the parents is always necessary for the marriage contract. [18] dower is a provision for a widow on the death of the husband or on separation by divorce. it is generally paid or delivered or guaranteed before marriage. [19] such slaves are generally killed by the authority against whom the offense was committed. [20] the maharajah pahlawan form the highest grade of maharaja, their rank being next below that of a panglima. [21] the term tuku-pipul, which is applied in sulu to all officers subordinate to panglima, means the small and large poles or pillars that support the house. [22] a panglima pihaq is one of the regularly chosen panglima of the island of sulu. the island used to be divided into five main divisions for administrative purposes, each of which used to have one panglima intrusted with its rule. an introduction to the philosophy of law the addresses contained in this book were delivered in the william l. storrs lecture series, 1921, before the law school of yale university, new haven, connecticut an introduction to the philosophy of law by roscoe pound new haven: yale university press london: humphrey milford oxford university press copyright, 1922, by yale university press printed in the united states of america first published, may, 1922. second printing, december, 1924. third printing, may, 1925. fourth printing, april, 1930. to joseph henry beale in grateful acknowledgment of many obligations the present volume is the second work published under the imprint of the yale university press in memory of arthur p. mckinstry, who died in new york city, july 21, 1921. born in winnebago city, minnesota, on december 22, 1881, he was graduated from yale college in 1905, and in 1907 received the degree of ll.b. _magna cum laude_ from the yale law school, graduating at the head of his class. throughout his career at yale he was noted both for his scholarship and for his active interest in debating, which won for him first the presidency of the freshman union and subsequently the presidency of the yale union. he was also class orator in 1905, and vice-president of the yale chapter of phi beta kappa. following his graduation from the school of law he entered upon the practice of his profession in new york city and early met with the success anticipated for him by his friends,--his firm, of which he was the senior member, being recognized at the time of his death as among the most prominent of the younger firms in the city. he was counsel for the post-graduate hospital of new york, the heckscher foundation for children, of which he was also a trustee, and from 1912 to 1914 served as associate counsel to the agency of the united states in the american and british claims arbitration. by his untimely death the bar of the city of new york lost a lawyer outstanding for his ability, common sense, conscientiousness, and high sense of justice; and yale university lost an alumnus of whom she was proud, who gave freely of his time and thought to his class of 1905, to the development of the yale school of law, and to the upbuilding of the yale university press, which he served as counsel. preface this book is a written version of lectures delivered before the law school of yale university as storrs lectures in the school year 1921-1922. a metaphysician who had written on the secret of hegel was congratulated upon his success in keeping the secret. one who essays an introduction to the philosophy of law may easily achieve a like success. his hearers are not unlikely to find that he has presented not one subject but two, presupposing a knowledge of one and giving them but scant acquaintance with the other. if he is a philosopher, he is not unlikely to have tried a highly organized philosophical apparatus upon those fragments of law that lie upon the surface of the legal order, or upon the law as seen through the spectacles of some jurist who had interpreted it in terms of a wholly different philosophical system. looking at the list of authorities relied upon in spencer's justice, and noting that his historical legal data were taken from maine's ancient law and thus came shaped by the political-idealistic interpretation of the english historical school, it is not difficult to perceive why positivist and hegelian came to the same juristic results by radically different methods. on the other hand, if he is a lawyer, he will very likely have been able to do no more than attempt none too intelligently to work with the complicated and delicate engines of others upon the toughest and most resistant of legal materials. until some anglo-american jurist arises with the universal equipment of josef kohler the results of common-law incursions into philosophy will resemble the effort of the editorial writer who wrote upon chinese metaphysics after reading in the encyclopædia britannica under china and metaphysics and combining his information. yet such incursions there must be. philosophy has been a powerful instrument in the legal armory and the times are ripe for restoring it to its old place therein. at least one may show what philosophy has done for some of the chief problems of the science of law, what stands before us to be done in some of the more conspicuous problems of that science today in which philosophy may help us, and how it is possible to look at those problems philosophically without treating them in terms of the eighteenth-century natural law or the nineteenth-century metaphysical jurisprudence which stand for philosophy in the general understanding of lawyers. roscoe pound. harvard law school, october 25, 1921. contents i. the function of legal philosophy 15 ii. the end of law 59 iii. the application of law 100 iv. liability 144 v. property 191 vi. contract 236 bibliography 285 index 309 i the function of legal philosophy for twenty-four hundred years--from the greek thinkers of the fifth century b. c., who asked whether right was right by nature or only by enactment and convention, to the social philosophers of today, who seek the ends, the ethical basis and the enduring principles of social control--the philosophy of law has taken a leading rôle in all study of human institutions. the perennial struggle of american administrative law with nineteenth-century constitutional formulations of aristotle's threefold classification of governmental power, the stone wall of natural rights against which attempts to put an end to private war in industrial disputes thus far have dashed in vain, and the notion of a logically derivable super-constitution, of which actual written constitutions are faint and imperfect reflections, which has been a clog upon social legislation for a generation, bear daily witness how thoroughly the philosophical legal thinking of the past is a force in the administration of justice of the present. indeed, the everyday work of the courts was never more completely shaped by abstract philosophical ideas than in the nineteenth century when lawyers affected to despise philosophy and jurists believed they had set up a self-sufficient science of law which stood in no need of any philosophical apparatus. in all stages of what may be described fairly as legal development, philosophy has been a useful servant. but in some it has been a tyrannous servant, and in all but form a master. it has been used to break down the authority of outworn tradition, to bend authoritatively imposed rules that admitted of no change to new uses which changed profoundly their practical effect, to bring new elements into the law from without and make new bodies of law from these new materials, to organize and systematize existing legal materials and to fortify established rules and institutions when periods of growth were succeeded by periods of stability and of merely formal reconstruction. such have been its actual achievements. yet all the while its professed aim has been much more ambitious. it has sought to give us a complete and final picture of social control. it has sought to lay down a moral and legal and political chart for all time. it has had faith that it could find the everlasting, unchangeable legal reality in which we might rest, and could enable us to establish a perfect law by which human relations might be ordered forever without uncertainty and freed from need of change. nor may we scoff at this ambitious aim and this lofty faith. they have been not the least factors in the power of legal philosophy to do the less ambitious things which in their aggregate are the bone and sinew of legal achievement. for the attempt at the larger program has led philosophy of law incidentally to do the things that were immediately and practically serviceable, and the doing of these latter, as it were _sub specie aeternitatis_, has given enduring worth to what seemed but by-products of philosophical inquiry. two needs have determined philosophical thinking about law. on the one hand, the paramount social interest in the general security, which as an interest in peace and order dictated the very beginnings of law, has led men to seek some fixed basis of a certain ordering of human action which should restrain magisterial as well as individual wilfulness and assure a firm and stable social order. on the other hand, the pressure of less immediate social interests, and the need of reconciling them with the exigencies of the general security, and of making continual new compromises because of continual changes in society, has called ever for readjustment at least of the details of the social order. it has called continually for overhauling of legal precepts and for refitting of them to unexpected situations. and this has led men to seek principles of legal development by which to escape from authoritative rules which they feared or did not know how to reject, but could no longer apply to advantage. these principles of change and growth, however, might easily prove inimical to the general security, and it was important to reconcile or unify them with the idea of a fixed basis of the legal order. thus the philosopher has sought to construct theories of law and theories of lawmaking and has sought to unify them by some ultimate solving idea equal to the task of yielding a perfect law which should stand fast forever. from the time when lawgivers gave over the attempt to maintain the general security by belief that particular bodies of human law had been divinely dictated or divinely revealed or divinely sanctioned, they have had to wrestle with the problem of proving to mankind that the law was something fixed and settled, whose authority was beyond question, while at the same time enabling it to make constant readjustments and occasional radical changes under the pressure of infinite and variable human desires. the philosopher has worked upon this problem with the materials of the actual legal systems of the time and place, or with the legal materials of the past upon which his generation had built. hence in closer view philosophies of law have been attempts to give a rational account of the law of the time and place, or attempts to formulate a general theory of the legal order to meet the needs of some given period of legal development, or attempts to state the results of the two former attempts universally and to make them all-sufficient for law everywhere and for all time. historians of the philosophy of law have fixed their eyes chiefly on the third. but this is the least valuable part of legal philosophy. if we look at the philosophies of the past with our eyes upon the law of the time and place and the exigencies of the stage of legal development in which they were formulated, we shall be able to appreciate them more justly, and so far as the law of the time and place or the stage of legal development was similar to or different from the present to utilize them for the purposes of today. we know greek law from the beginnings of a legal order as pictured in the homeric poems to the developed commercial institutions of the hellenistic period. in its first stage the kings decide particular causes by divine inspiration. in a second stage the customary course of decision has become a tradition possessed by an oligarchy. later, popular demand for publication results in a body of enactment. at first enactments are no more than declaratory. but it was an easy step from publication of established custom to publication of changes as if they were established custom and thus to conscious and avowed changes and intentional new rules through legislation. the law of athens in the fifth and fourth centuries b. c. was a codified tradition eked out by legislation and individualized in its application through administration of justice by large popular assemblies. thus in spite of formal reduction to writing it preserved the fluidity of primitive law and was able to afford a philosophy for roman law in its stage of equity and natural law--another period of legal fluidity. the development of a strict law out of codified primitive materials, which in rome happily preceded the stage of equity and natural law, did not take place in the greek city. hence the rules of law were applied with an individualized equity that reminds us of the french _droit coutumier_--a mode of application which, with all its good points, must be preceded by a body of strict law, well worked out and well understood, if its results are to be compatible with the general security in a complex social order. in athens of the classical period the word [greek: nómos], meaning both custom and enacted law as well as law in general, reflected the uncertainty with respect to form and the want of uniformity in application, which are characteristic of primitive law, and invited thought as to the reality behind such confusion. we may understand the materials upon which greek philosophers were working if we look at an exhortation addressed by demosthenes to an athenian jury. men ought to obey the law, he said, for four reasons: because laws were prescribed by god, because they were a tradition taught by wise men who knew the good old customs, because they were deductions from an eternal and immutable moral code and because they were agreements of men with each other binding them because of a moral duty to keep their promises. it was not long since that men had thought of legal precepts as divinely revealed, nor was it long since that law had been a tradition of old customs of decision. philosophers were seeking a better basis for them in eternal principles of right. in the meantime in political theory, at least, many of them were the agreements of athenian citizens as to how they should conduct themselves in the inevitable clashes of interests in everyday life. what was needed above all was some theory of the authority of law which should impose bonds of reason upon those who enacted, upon those who applied and upon those who were subject to law in such an amorphous legal order. a sure basis of authority resting upon something more stable than human will and the power of those who govern to impose their will for the time being was required also for the problem of social control in the greek city-state. in order to maintain the general security and the security of social institutions amid a strife of factions in a society organized on the basis of kinship and against the wilfulness of masterful individuals boasting descent from gods, in order to persuade or coerce both the aristocracy and the mass of the low born to maintain in orderly fashion the social _status quo_, it would not do to tell them that law was a gift of god, nor that what offended the aristocrat as a radical bit of popular legislation enacted at the instance of a demagogue was yet to be obeyed because it had been so taught by wise men who knew the good old customs, nor that demos chafing under some item of a class-possessed tradition was bound by it as something to which all citizens had agreed. the exigencies of the social order called for a distinction between [greek: nómos] and [greek: tà nomizómena]--between law and rules of law. the minos, which if not actually a dialogue of plato's seems clearly platonic and very close to plato in time, is taken up with this distinction and gives us a clue to the juristic problems of the time. another example may be seen in aristotle's well-known discussion in the nicomachean ethics. it is significant that greek thinkers always couple custom and enactment; things which today we contrast. these were the formal bases of legal authority. so aristotle considers, not natural _law_ and positive _law_, but what is just in itself--just by nature or just in its idea--and what derives its sole title to be just from convention or enactment. the latter, he says, can be just only with respect to those things which by nature are indifferent. thus when a newly reconstituted city took a living spartan general for its eponymus, no one was bound by nature to sacrifice to brasidas as to an ancestor, but he was bound by enactment and after all the matter was one of convention, which, in a society framed on the model of an organized kindred, required that the citizens have a common heroic ancestor, and was morally indifferent. the distinction was handed down to modern legal science by thomas aquinas, was embodied in anglo-american legal thought by blackstone, and has become staple. but it is quite out of its setting as a doctrine of _mala prohibita_ and _mala in se_. an example of the distinction between law and rules of law has become the basis of an arbitrary line between the traditionally anti-social, penalized by the common law, and recently penalized infringements of newly or partially recognized social interests. although the discrimination between what is just and right by nature and what is just because of custom or enactment has had a long and fruitful history in philosophical jurisprudence and is still a force in the administration of justice, i suspect that the permanent contribution of greek philosophy of law is to be found rather in the distinction between law and rules of law, which lies behind it and has significance for all stages of legal development. roman lawyers came in contact with philosophy in the transition from the strict law to the stage of equity and natural law, and the contact had much to do with enabling them to make the transition. from a purely legal standpoint greek law was in the stage of primitive law. law and morals were still largely undifferentiated. hence greek philosophical thinking of a stage of undifferentiated law and morals lent itself to the identification of the legal and the moral in juristic thinking which was characteristic of the classical roman law. but the strict law obviously was indifferent to morals and in many vital points was quite at variance with the moral ideas of the time. the greek distinction of just by nature and just by convention or enactment was suggested at once by such a situation. moreover the forms of law at the end of the republic and at the beginning of the empire invited a theory of law as something composite, made up of more than one type of precept and resting immediately on more than one basis of authority. cicero enumerates seven forms of law. three of these are not heard of thereafter in roman juristic writing. evidently already in cicero's time they belonged to the past and had ceased to be effective forms of the actual law. the four remaining, namely, statutes, resolutions of the senate, edicts of the magistrates, and the authority of those learned in the law, come to three--legislation, administrative edicts, and juristic reasoning on the basis of the legal tradition. and these correspond to the three elements which made up the law. first, there was the _ius ciuile_: the twelve tables, subsequent legislation, interpretation of both, and the traditional law of the city. second, there was the mass of rules, in form largely procedural, which was contained in the edicts. the growing point of the law had been here and to some extent growth was still going on through this means. indeed this part of the law reached its final form under hadrian. third, there were the writings of the jurisconsults. the growing point of the law had begun to be here and this was the most important form of law in the classical period from augustus to the third century. this part of the law got its final form in the digest of justinian. of the three elements, the first was thought of originally as declared and published custom. later it was thought of as resting on the authority of the state. it was obviously local and peculiar to rome. in form it rested on the legislative power of the roman people, supplemented by a mere interpretation of the legislative command with only the authority of customary acceptance. in greek phrase it rested on convention and enactment. the second purported to be the rules observed by civilized peoples, and on points of commercial law may well have been an approximation thereto. apart from this, however, according to ancient ideas of personal law, the rules which obtained among civilized peoples were eminently a proper law to apply between citizen and non-citizen. in greek phrase it was law by convention. the basis of the third was simply reason. the jurisconsult had no legislative power and no _imperium_. the authority of his _responsum_, as soon as law ceased to be a class tradition, was to be found in its intrinsic reasonableness; in the appeal which it made to the reason and sense of justice of the _iudex_. in greek phrase, if it was law, it was law by nature. as the rise of professional lawyers, the shifting of the growing point of law to juristic writing and the transition from the law of a city to a law of the world called for a legal science, there was need of a theory of what law was that could give a rational account of the threefold body of rules in point of origin and authority, which were actually in operation, and would at the same time enable the jurists to shape the existing body of legal precepts by reason so as to make it possible for them to serve as law for the whole world. the perennial problem of preserving stability and admitting of change was presented in an acute form. above all the period from augustus to the second quarter of the third century was one of growth. but it was revolutionary only if we compare the law at the end of the period with the law of the generation before cicero. the jurisconsults were practical lawyers and the paramount interest in the general security was ever before their eyes. while as an ideal they identified law with morals, they did not cease to observe the strict law where it was applicable nor to develop its precepts by analogy according to the known traditional technique when new phases of old questions came before them. hence what to the greeks was a distinction between right by nature and right by convention or enactment became to them a distinction between law by nature and law by custom or legislation. the latin equivalent of [greek: to dikaion] (the right or the just) became their word for law. they said _ius_ where cicero said _lex_. and this convenient ambiguity, lending itself to identification of what ought to be and what is, gave a scientific foundation for the belief of the jurisconsults that when and where they were not bound by positive law they had but to expound the reason and justice of the thing in order to lay down the law. it must be borne in mind that "nature" did not mean to antiquity what it means to us who are under the influence of the idea of evolution. to the greek, it has been said, the natural apple was not the wild one from which our cultivated apple has been grown, but rather the golden apple of the hesperides. the "natural" object was that which expressed most completely the idea of the thing. it was the perfect object. hence the natural law was that which expressed perfectly the idea of law and a rule of natural law was one which expressed perfectly the idea of law applied to the subject in question; the one which gave to that subject its perfect development. for legal purposes reality was to be found in this ideal, perfect, natural law, and its organ was juristic reason. legislation and the edict, so far as they had any more than a positive foundation of political authority, were but imperfect and ephemeral copies of this jural reality. thus the jurists came to the doctrine of the _ratio legis_, the principle of natural law behind the legal rule, which has been so fruitful both of practical good and of theoretical confusion in interpretation. thus also they came to the doctrine of reasoning from the analogy of all legal rules, whether traditional or legislative, since all, so far as they had jural reality, had it because and to the extent that they embodied or realized a principle of natural law. natural law was a philosophical theory for a period of growth. it arose to meet the exigencies of the stage of equity and natural law, one of the great creative periods of legal history. yet, as we have seen, even the most rapid growth does not permit the lawyer to ignore the demand for stability. the theory of natural law was worked out as a means of growth, as a means of making a law of the world on the basis of the old strict law of the roman city. but it was worked out also as a means of directing and organizing the growth of law so as to maintain the general security. it was the task of the jurists to build and shape the law on the basis of the old local materials so as to make it an instrument for satisfying the wants of a whole world while at the same time insuring uniformity and predicability. they did this by applying a new but known technique to the old materials. the technique was one of legal reason; but it was a legal reason identified with natural reason and worked out and applied under the influence of a philosophical ideal. the conception of natural law as something of which all positive law was but declaratory, as something by which actual rules were to be measured, to which so far as possible they were to be made to conform, by which new rules were to be framed and by which old rules were to be extended or restricted in their application, was a powerful instrument in the hands of the jurists and enabled them to proceed in their task of legal construction with assured confidence. but the juristic empiricism by which the _ius ciuile_ was made into a law of the world needed something more than a theoretical incentive. it was a process of analogical development by extension here and restriction there, of generalization, first in the form of maxims and later by laying down broad principles, and of cautious striking out of new paths, giving them course and direction by trial and error. it was a process very like that by which anglo-american judicial empiricism has been able to make a law of the world on the basis of the legal precepts of seventeenth-century england. such a process required something to give direction to juristic reasoning, to give definite content to the ideal, to provide a reasonably defined channel for juristic thought. this need was met by the philosophical theory of the nature of things and of the law of nature as conformity thereto. in practice jurist-made and judge-made law have been molded consciously, or unconsciously, by ideas as to what law is for; by theories as to the end of law. in the beginnings of law men had no more ambitious conception than a peaceable ordering of society at any cost. but the greeks soon got a better conception of an orderly and peaceable maintaining of the social _status quo_. when the theory of natural law is applied to that conception, we get the notion of an ideal form of the social _status quo_--a form which expresses its nature, a perfect form of the social organization of a given civilization--as that which the legal order is to further and maintain. thus judge and jurist obtain a guide which has served them well ever since. they are to measure all situations by an idealized form of the social order of the time and place and are so to shape the law as to make it maintain and further this ideal of the social _status quo_. we shall meet this idea in various forms throughout the subsequent history of the philosophy of law. it constitutes the permanent contribution of rome to legal philosophy. as soon as scientific legal development begins in the middle ages the law once more comes in contact with philosophy through the study of both in the universities. what was the need of the time which philosophy was called upon to satisfy? following an era of anarchy and disunion and violence men desired order and organization and peace. they called for a philosophy that would bolster up authority and rationalize their desire to impose a legal yoke upon society. the period was one of transition from the primitive law of the germanic peoples to a strict law, through reception of roman law as authoritative legislation or through compilation of the germanic customary law more or less after the roman model, as in the north of france, or through declaration of the customary law in reported decisions of strong central courts, as in england. thus it soon became a period of strict law. scholastic philosophy, with its reliance upon dialectic development of authoritatively given premises, its faith in formal logic and its central problem of putting reason as a foundation under authority, responded exactly to these demands. it is no misnomer to style the commentators or post-glossators of the fourteenth and fifteenth centuries the "scholastic jurists." for it was in large part the philosophy that met the needs of the time so completely which enabled them to put the roman law of justinian in a form to be received and administered in the europe of nine centuries later. while they made the gloss into law in place of the text and made many things over, as they had to be made over if they were to fit a wholly different social order, the method of dialectical development of absolute and unquestioned premises made it appear that nothing had been done but to develop the logical implications of an authoritative text. men could receive the law of bartolus so long as they believed it but the logical unfolding of the pre-existing content of the binding legislation of justinian. it is interesting to note in fortescue an application of this to the rules of the common law in its stage of strict law. he assumes that these rules are the principles of which he reads in the commentators on aristotle and that they may be compared to the axioms of the geometrician. the time had not yet come to call rules or principles or axioms in question. the need was to rationalize men's desire to be governed by fixed rules and to reconcile, in appearance at least, the change and growth which are inevitable in all law with the need men felt of having a fixed, unchangeable, authoritative rule. the scholastic philosophy did notable service in these respects and, i venture to think, left as a permanent contribution to legal science the method of insuring certainty by logical development of the content of authoritatively defined conceptions. on the breakdown of the feudal social organization, the rise of commerce and the era of discovery, colonization and exploitation of the natural resources of new continents, together with the rise of nations in place of loose congeries of vassal-held territories, called for a national law unified within the national domain. starkey proposed codification to henry viii and dumoulin urged harmonizing and unifying of french customary law with eventual codification. the protestant jurist-theologians of the sixteenth century found a philosophical basis for satisfying these desires of the time in the divinely ordained state and in a natural law divorced from theology and resting solely upon reason, reflecting the boundless faith in reason which came in with the renaissance. thus each national jurist might work out his own interpretation of natural law by dint of his own reason, as each christian might interpret the word of god for himself as his own reason and conscience showed the way. on the other hand, the catholic jurists of the counter-reformation found a philosophical basis for satisfying these same desires in a conception of natural law as a system of limitations on human action expressing the nature of man, that is, the ideal of man as a rational creature, and of positive law as an ideal system expressing the nature of a unified state. for the moment these ideas were put at the service of a growing royal authority and bore fruit in the byzantine theory of sovereignty which became classical in public law. in private law they soon took quite another turn. for a new period of growth, demanded by the expansion of society and the breaking over the bonds of authority, was at hand to make new and wholly different demands upon philosophy. glossators and commentators had made or shaped the law out of roman materials for a static, locally self-sufficient, other-worldly society, revering authority because authority had saved it from what it feared, regarding chiefly the security of social institutions and negligent of the individual life because in its polity the individual lived his highest life in the life of another whose greatness was the greatness of those who served him. in the seventeenth and eighteenth centuries jurists were required to make or shape a law out of these medievalized roman materials to satisfy the wants of an active and shifting, locally interdependent, this-worldly society, impatient of authority because authority stood in the way of what it desired, and jealously individualist, since it took free individual self-assertion to be the highest good. in england the strict law made for feudal england out of germanic materials, sometimes superficially romanized, was likewise to be made over to do the work of administering justice to a new world. a period of legal development resulted which is strikingly analogous to the classical period of roman law. once more philosophy took the helm. once more there was an infusion into law of ideas from without the law. once more law and morals were identified in juristic thinking. once more men held as a living tenet that all positive law was declaratory of natural law and got its real authority from the rules of natural law which it declared. once more juridical idealism led the jurist to survey every corner of the actual law, measuring its rules by reason and shaping, extending, restricting or building anew in order that the actual legal edifice might be a faithful copy of the ideal. but the theory of natural law, devised for a society organized on the basis of kinship and developed for a society organized on the basis of relations, did not suffice for a society which conceived of itself as an aggregate of individuals and was reorganizing on the basis of competitive self-assertion. again the convenient ambiguity of _ius_, which could mean not only right and law but "a right," was pressed into service and _ius naturale_ gave us natural rights. the ultimate thing was not natural law as before, not merely principles of eternal validity, but natural rights, certain qualities inherent in man and demonstrated by reason, which natural law exists to secure and to which positive law ought to give effect. later these natural rights came to be the bane of juristic thinking. yet they achieved great things in their day. under the influence of this theory jurists worked out a scheme of "legal rights" that effectively secures almost the whole field of individual interests of personality and individual interests of substance. it put a scientific foundation under the medieval scheme of the claims and duties involved in the relation of king to tenants in chief, out of which the judges had developed the immemorial rights of englishmen, and enabled the common-law rights of englishmen to become the natural rights of man, intrenched as such in our bills of rights. thus it served as a needed check upon the exuberance of growth stimulated by the theory of natural law. it kept a certain needed rigidity in a time when law threatened to become wholly fluid. and this steadying influence was strengthened from another quarter. the roman jurisconsult was teacher, philosopher and practitioner in one. as a lawyer he had the exigencies of the general security ever before him in that he felt the imperative need of being able to advise with assurance what tribunals would do on a given state of facts. the seventeenthand eighteenth-century jurists were chiefly teachers and philosophers. happily they had been trained to accept the roman law as something of paramount authority and so were able to give natural law a content by assuming its identity with an ideal form of the law which they knew and in which they had been trained. as the roman jurisconsult built in the image of the old law of the city, they built on idealized roman lines. if roman law could no longer claim to be embodied authority, they assumed that, corrected in its details by a juristic-philosophical critique, it was embodied reason. both of these ideas, natural rights and an ideal form of the actual law of the time and place as the jural order of nature, were handed down to and put to new uses in the nineteenth century. in the growing law of the seventeenth and eighteenth centuries they were but guides to lead growth into definite channels and insure continuity and permanence in the development of rules and doctrines. whether natural rights were conceived as qualities of the natural man or as deductions from a compact which expressed the nature of man, the point was, not that the jurist should keep his hands off lest by devising some new precept or in reshaping some old doctrine he infringe a fundamental right, but that he should use his hand freely and skilfully to shape rules and doctrines and institutions that they might be instruments of achieving the ideal of human existence in a "state of nature." for the state of nature, let us remember, was a state which expressed the ideal of man as a rational creature. if a reaction from the formal over-refinement of the eighteenth century came to identify this with a primitive simplicity, in juristic hands it was the simplicity of a rational ideal in place of the cumbrous complexity of legal systems which had become fixed in their ideas in the stage of the strict law. thus pothier, discussing the roman categories of contract and rejecting them for the "natural" principle that man, as a moral creature, should keep his engagements, declares that the complex and arbitrary system of roman law, made up of successive additions at different times to a narrow primitive stock of legally enforceable promises, is not adhered to because it is "remote from simplicity." again the ideal form of the actual law, which gave content to natural law, was not an ideal form of historically found principles, constraining development for all time within historically fixed bounds, as in the nineteenth century, but an ideal form of the _ratio legis_--of the reason behind the rule or doctrine or institution whereby it expressed the nature of the rational human being guided only by reason and conscience in his relations with similar beings similarly guided. attempts to fix the immutable part of law, to lay out legal charts for all time, belong to the transition to the maturity of law. the eighteenth-century projects for codification and the era of codification on the continent, in which the results of two centuries of growth were put in systematic form to serve as the basis of a juristic new start, in form rested upon the theory of natural law. by a sheer effort of reason the jurist could work out a complete system of deductions from the nature of man and formulate them in a perfect code. go to, let him do so! this was not the mode of thought of a period of growth but rather of one when growth had been achieved and the philosophical theory of a law of nature was called upon for a new kind of service. at the end of the eighteenth century lord kenyon had determined that "mansfield's innovations" were not to go on. indeed some of them were to be undone. equity was soon to be systematized by lord eldon and to become "almost as fixed and settled" as the law itself. the absorption of the law merchant was complete in its main lines although in details it went on for two decades. moreover the legislative reform movement which followed only carried into detail the ideas which had come into the law in the two preceding centuries. for a time the law was assimilating what had been taken up during the period of growth and the task of the jurist was one of ordering, harmonizing and systematizing rather than of creating. likewise law had been codifying on the continent. down to the end of the nineteenth century the codes, whatever their date, in reality speak from the end of the eighteenth century and with few exceptions are all but copies of the french code of 1804. where there were no codes, the hegemony of the historical school led to a movement back to the law of justinian which would have undone much of the progress of the last centuries. the energies of jurists were turned for a time to analysis, classification and system as their sole task. where codes obtained, analytical development and dogmatic exposition of the text, as a complete and final statement of the law, was to occupy jurists exclusively for the next hundred years. we may well think of this time, as it thought of itself, as a period of maturity of law. the law was taken to be complete and self-sufficient, without antinomies and without gaps, wanting only arrangement, logical development of the implications of its several rules and conceptions, and systematic exposition of its several parts. legislation might be needed on occasion in order to get rid of archaisms which had survived the purgation of the two prior centuries. for the rest, history and analysis, bringing out the idea behind the course of development of legal doctrines and unfolding their logical consequences, were all the apparatus which the jurist required. he soon affected to ignore philosophy and often relegated it to the science of legislation, where within narrow limits it might still be possible to think of creating. yet the nineteenth century was no more able to get on without philosophy of law than were its predecessors. in place of one universally recognized philosophical method we find four well-marked types. but they all come to the same final results, are marked by the same spirit and put the same shackles upon juristic activity. they are all modes of rationalizing the juristic desires of the time, growing out of the pressure of the interest in the general security by way of reaction from a period of growth and in the security of acquisitions and security of transactions in a time of economic expansion and industrial enterprise. in the united states, since the natural law of the eighteenth-century publicists had become classical, we relied largely upon an american variant of natural law. it was not that natural law expressed the nature of man. rather it expressed the nature of government. one form of this variant was due to our doctrine that the common law of england was in force only so far as applicable to our conditions and our institutions. the attempt to put this doctrine philosophically regards an ideal form of the received common law as natural law and takes natural law to be a body of deductions from or implications of american institutions or the nature of our polity. but yesterday the supreme court of one of our states laid down dogmatically that primogeniture in estates tail (which by the way is still possible in one of the oldest of the original states) could not co-exist with "the axioms of the constitution" which guarantees to each state a republican form of government. more generally, however, the american variant of natural law grew out of an attempt at philosophical statement of the power of our courts with respect to unconstitutional legislation. the constitution was declaratory of principles of natural constitutional law which were to be deduced from the nature of free government. hence constitutional questions were always only in terms questions of constitutional interpretation. they were questions of the meaning of the document, as such, only in form. in substance they were questions of a general constitutional law which transcended the text; of whether the enactment before the court conformed to principles of natural law "running back of all constitutions" and inherent in the very idea of a government of limited powers set up by a free people. now that courts with few exceptions have given over this mode of thinking and the highest court in the land has come to apply the limitations of the fifth and fourteenth amendments as legal standards, there are some who say that we no longer have a constitutional law. for how can there be law unless as a body of rules declaring a natural law which is above all human enactment? the interpretation of a written instrument, no matter by whom enacted, may be governed by law, indeed, but can yield no law. such ideas die hard. in the language of the eighteenth century, our courts sought to make our positive law, and in particular our legislation, express the nature of american political institutions; they sought so to shape it and restrain it as to make it give effect to an ideal of our polity. later in the nineteenth century natural law as a deduction from american institutions or from "free government" gave way to a metaphysical-historical theory worked out in continental europe. natural rights were deductions from a fundamental metaphysically demonstrable datum of individual free will, and natural law was an ideal critique of positive law whereby to secure these rights in their integrity. history showed us the idea of individual liberty realizing itself in legal institutions and rules and doctrines; jurisprudence developed this idea into its logical consequences and gave us a critique of law whereby we might be delivered from futile attempts to set up legal precepts beyond the necessary minimum for insuring the harmonious co-existence of the individual and his fellows. this mode of thought was well suited to a conception of law as standing between the abstract individual and society and protecting the natural rights of the former against the latter, which american law had derived from the seventeenth-century contests in england between courts and crown. it was easy to generalize this as a contest between the individual and society, and it became more easy to do so when the common-law rights of englishmen secured by common-law courts against the crown had become the natural rights of man secured to individual men as against the state by the bills of rights. others in england and america turned to a utilitarian-analytical theory. the legislator was to be guided by a principle of utility. that which made for the greatest total of individual happiness was to be the lawmaker's standard. the jurist was to find universal principles by analysis of the actual law. he had nothing to do with creative activity. his work was to be that of orderly logical development of the principles reached by analysis of what he found already given in the law and improvement of the form of the law by system and logical reconciliation of details. as it was assumed that the maximum of abstract individual free self-assertion was the maximum of human happiness, in the result the legislator was to be busied with formal improvement of the law and rendering it, as bentham put it, more "cognoscible," while the jurist was exercising a like restricted function so far as he could work with materials afforded exclusively by the law itself. not unnaturally metaphysical and historical and analytical jurists, at the end of the century, were quite willing to say that their several methods were not exclusive but were complementary. toward the end of the last century a positivist sociological thinking tended to supersede the metaphysical-historical and the utilitarian-analytical. all phenomena were determined by inexorable natural laws to be discovered by observation. moral and social and hence legal phenomena were governed by laws as completely beyond the power of conscious human control as the movements of the planets. we might discover these laws by observation of social phenomena and might learn to submit to them intelligently instead of rashly or ignorantly defying them. but we could hope to do no more. except as he could learn to plot some part of the inevitable curve of legal development and save us from futile flyings in the face of the laws by which legal evolution was inevitably governed, the jurist was powerless. many combined this mode of thought with or grafted it on the metaphysical-historical theory and fought valiantly against the social legislation of the last decade of the nineteenth century and the first decade of the present century with this reinforced juristic pessimism as a base. superficially it appeared that the greek idea of the naturally just, which in its roman form of natural law and its eighteenth-century form of natural rights had made for a creative legal science as long as such a science had existed, had at length exhausted its possibilities. today, however, we hear of a revival of natural law. philosophy of law is raising its head throughout the world. we are asked to measure rules and doctrines and institutions and to guide the application of law by reference to the end of law and to think of them in terms of social utility. we are invited to subsume questions of law and of the application of law under the social ideal of the time and place. we are called upon to formulate the jural postulates of the civilization of the time and place and to measure law and the application of law thereby in order that law may further civilization and that the legal materials handed down with the civilization of the past may be made an instrument of maintaining and furthering the civilization of the present. we are told that observation shows us social interdependence through similarity of interest and through division of labor as the central fact in human existence and are told to measure law and the application of law functionally by the extent to which they further or interfere with this interdependence. for the era of legal self-sufficiency is past. the work of assimilating what had been received into the law from without during the period of equity and natural law has been done. the possibilities of analytical and historical development of the classical materials have been substantially exhausted. while jurists have been at these tasks, a new social order has been building which makes new demands and presses upon the legal order with a multitude of unsatisfied desires. once more we must build rather than merely improve; we must create rather than merely order and systematize and logically reconcile details. one has but to compare the law of today on such subjects as torts, or public utilities or administrative law with the law of a generation ago to see that we are in a new stage of transition; to see that the juristic pessimism of the immediate past, which arose to save us from taking in more from without while what had been taken already remained undigested, will serve no longer; and to see that the jurist of tomorrow will stand in need of some new philosophical theory of law, will call for some new philosophical conception of the end of law and at the same time will want some new steadying philosophical conception to safeguard the general security, in order to make the law which we hand down to him achieve justice in his time and place. ii the end of law making or finding law, call it which you will, presupposes a mental picture of what one is doing and of why he is doing it. hence the nature of law has been the chief battleground of jurisprudence since the greek philosophers began to argue as to the basis of the law's authority. but the end of law has been debated more in politics than in jurisprudence. in the stage of equity and natural law the prevailing theory of the nature of law seemed to answer the question as to its end. in the maturity of law the law was thought of as something self-sufficient, to be judged by an ideal form of itself, and as something which could not be made, or, if it could be made, was to be made sparingly. the idea of natural rights seemed to explain incidentally what law was for and to show that there ought to be as little of it as possible, since it was a restraint upon liberty and even the least of such restraint demanded affirmative justification. thus, apart from mere systematic and formal improvement, the theory of lawmaking in the maturity of law was negative. it told us chiefly how we should not legislate and upon what subjects we should refrain from lawmaking. having no positive theory of creative lawmaking, the last century was little conscious of requiring or holding a theory as to the end of law. but in fact it held such a theory and held it strongly. as ideas of what law is for are so largely implicit in ideas of what law is, a brief survey of ideas of the nature of law from this standpoint will be useful. no less than twelve conceptions of what law is may be distinguished. first, we may put the idea of a divinely ordained rule or set of rules for human action, as for example, the mosaic law, or hammurapi's code, handed him ready-made by the sun god, or manu, dictated to the sages by manu's son bhrigu in manu's presence and by his direction. second, there is an idea of law as a tradition of the old customs which have proved acceptable to the gods and hence point the way in which man may walk with safety. for primitive man, surrounded by what seem vengeful and capricious powers of nature, is in continual fear of giving offence to these powers and thus bringing down their wrath upon himself and his fellows. the general security requires that men do only those things and do them only in the way which long custom has shown at least not displeasing to the gods. law is the traditional or recorded body of precepts in which that custom is preserved and expressed. whenever we find a body of primitive law possessed as a class tradition by a political oligarchy it is likely to be thought of in this way just as a body of like tradition in the custody of a priesthood is certain to be thought of as divinely revealed. a third and closely related idea conceives of law as the recorded wisdom of the wise men of old who had learned the safe course or the divinely approved course for human conduct. when a traditional custom of decision and custom of action has been reduced to writing in a primitive code it is likely to be thought of in this way, and demosthenes in the fourth century b. c. could describe the law of athens in these terms. fourth, law may be conceived as a philosophically discovered system of principles which express the nature of things, to which, therefore, man ought to conform his conduct. such was the idea of the roman jurisconsult, grafted, it is true, on the second and third ideas and on a political theory of law as the command of the roman people, but reconciled with them by conceiving of tradition and recorded wisdom and command of the people as mere declarations or reflections of the philosophically ascertained principles, to be measured and shaped and interpreted and eked out thereby. in the hands of philosophers the foregoing conception often takes another form so that, fifth, law is looked upon as a body of ascertainments and declarations of an eternal and immutable moral code. sixth, there is an idea of law as a body of agreements of men in politically organized society as to their relations with each other. this is a democratic version of the identification of law with rules of law and hence with the enactments and decrees of the city-state which is discussed in the platonic minos. not unnaturally demosthenes suggests it to an athenian jury. very likely in such a theory a philosophical idea would support the political idea and the inherent moral obligation of a promise would be invoked to show why men should keep the agreements made in their popular assemblies. seventh, law has been thought of as a reflection of the divine reason governing the universe; a reflection of that part which determines the "ought" addressed by that reason to human beings as moral entities, in distinction from the "must" which it addresses to the rest of creation. such was the conception of thomas aquinas, which had great currency down to the seventeenth century and has had much influence ever since. eighth, law has been conceived as a body of commands of the sovereign authority in a politically organized society as to how men should conduct themselves therein, resting ultimately on whatever basis was held to be behind the authority of that sovereign. so thought the roman jurists of the republic and of the classical period with respect to positive law. and as the emperor had the sovereignty of the roman people devolved upon him, the institutes of justinian could lay down that the will of the emperor had the force of a law. such a mode of thought was congenial to the lawyers who were active in support of royal authority in the centralizing french monarchy of the sixteenth and seventeenth centuries and through them passed into public law. it seemed to fit the circumstances of parliamentary supremacy in england after 1688, and became the orthodox english juristic theory. also it could be made to fit a political theory of popular sovereignty in which the people were thought of as succeeding to the sovereignty of parliament at the american revolution or of the french king at the french revolution. a ninth idea of law takes it to be a system of precepts discovered by human experience whereby the individual human will may realize the most complete freedom possible consistently with the like freedom of will of others. this idea, held in one form or another by the historical school, divided the allegiance of jurists with the theory of law as command of the sovereign during almost the whole of the past century. it assumed that the human experience by which legal principles were discovered was determined in some inevitable way. it was not a matter of conscious human endeavor. the process was determined by the unfolding of an idea of right and justice or an idea of liberty which was realizing itself in human administration of justice, or by the operation of biological or psychological laws or of race characters, whose necessary result was the system of law of the time and people in question. again, tenth, men have thought of law as a system of principles, discovered philosophically and developed in detail by juristic writing and judicial decision, whereby the external life of man is measured by reason, or in another phase, whereby the will of the individual in action is harmonized with those of his fellow men. this mode of thought appeared in the nineteenth century after the natural-law theory in the form in which it had prevailed for two centuries had been abandoned and philosophy was called upon to provide a critique for systematic arrangement and development of details. eleventh, law has been thought of as a body or system of rules imposed on men in society by the dominant class for the time being in furtherance, conscious or unconscious, of its own interest. this economic interpretation of law takes many forms. in an idealistic form it thinks of the inevitable unfolding of an economic idea. in a mechanical sociological form it thinks of class struggle or a struggle for existence in terms of economics, and of law as the result of the operation of forces or laws involved in or determining such struggles. in a positivist-analytical form it thinks of law as the command of the sovereign, but of that command as determined in its economic content by the will of the dominant social class, determined in turn by its own interest. all of these forms belong to transition from the stability of the maturity of law to a new period of growth. when the idea of the self-sufficiency of law gives way and men seek to relate jurisprudence to the other social sciences, the relation to economics challenges attention at once. moreover in a time of copious legislation the enacted rule is easily taken as the type of legal precept and an attempt to frame a theory of legislative lawmaking is taken to give an account of all law. finally, twelfth, there is an idea of law as made up of the dictates of economic or social laws with respect to the conduct of men in society, discovered by observation, expressed in precepts worked out through human experience of what would work and what not in the administration of justice. this type of theory likewise belongs to the end of the nineteenth century, when men had begun to look for physical or biological bases, discoverable by observation, in place of metaphysical bases, discoverable by philosophical reflection. another form finds some ultimate social fact by observation and develops the logical implications of that fact much after the manner of the metaphysical jurist. this again results from the tendency in recent years to unify the social sciences and consequent attention to sociological theories. digression is worth while in order to note that each of the foregoing theories of law was in the first instance an attempt at a rational explanation of the law of the time and place or of some striking element therein. thus, when the law has been growing through juristic activity, a philosophical theory of law, as declaratory of philosophically ascertainable principles, has obtained. when and where the growing point of law has been in legislation, a political theory of law as the command of the sovereign has prevailed. when the law has been assimilating the results of a prior period of growth, a historical theory of law as something found by experience, or a metaphysical theory of law as an idea of right or of liberty realizing in social and legal development, has tended to be dominant. for jurists and philosophers do not make these theories as simple matters of logic by inexorable development of philosophical fundamentals. having something to explain or to expound, they endeavor to understand it and to state it rationally and in so doing work out a theory of what it is. the theory necessarily reflects the institution which it was devised to rationalize, even though stated universally. it is an attempt to state the law, or the legal institution of the time and place in universal terms. its real utility is likely to be in its enabling us to understand that body of law or that institution and to perceive what the men of the time were seeking to do with them or to make of them. accordingly analysis of these theories is one way of getting at the ends for which men have been striving through the legal order. what common elements may we find in the foregoing twelve pictures of what law is? for one thing, each shows us a picture of some ultimate basis, beyond reach of the individual human will, that stands fast in the whirl of change of which life is made up. this steadfast ultimate basis may be thought of as the divine pleasure or will or reason, revealed immediately or mediately through a divinely ordained immutable moral code. it may be put in the form of some ultimate metaphysical datum which is so given us that we may rest in it forever. it may be portrayed as certain ultimate laws which inexorably determine the phenomena of human conduct. or it may be described in terms of some authoritative will for the time and place, to which the wills of others are subjected, that will deriving its authority ultimately and absolutely in some one of the preceding forms, so that what it does is by and large in no wise a matter of chance. this fixed and stable starting point is usually the feature upon which the chief emphasis is placed. next we shall find in all theories of the nature of law a picture of a determinate and mechanically absolute mode of proceeding from the fixed and absolute starting point. the details may come from this starting point through divine revelation or a settled authoritative tradition or record, or an inevitable and infallible philosophical or logical method, or an authoritative political machinery, or a scientific system of observation, or historically verifiable ideas which are logically demonstrable to be implications of the fundamental metaphysically given datum. third, we shall see in these theories a picture of a system of ordering human conduct and adjusting human relations resting upon the ultimate basis and derived therefrom by the absolute process. in other words, they all picture, not merely an ordering of human conduct and adjustment of human relations, which we have actually given, but something more which we should like to have, namely, a doing of these things in a fixed, absolutely predetermined way, excluding all merely individual feelings or desires of those by whom the ordering and adjustment are carried out. thus in these subconscious picturings of the end of law it seems to be conceived as existing to satisfy a paramount social want of general security. certainly the nineteenth-century jurist had this conception. but is this because the function of law is limited to satisfaction of that one want, or is it because that want has been most conspicuous among those which men have sought to satisfy through law, and because the ordering of human conduct by the force of politically organized society has been adapted chiefly to satisfying that one want in the social order of the past? if we turn to the ideas which have obtained in conscious thinking about the end of law, we may recognize three which have held the ground successively in legal history and a fourth which is beginning to assert itself. the first and simplest idea is that law exists in order to keep the peace in a given society; to keep the peace at all events and at any price. this is the conception of what may be called the stage of primitive law. it puts satisfaction of the social want of general security, stated in its lowest terms, as the purpose of the legal order. so far as the law goes, other individual or social wants are ignored or are sacrificed to this one. accordingly the law is made up of tariffs of exact compositions for every detailed injury instead of principles of exact reparation, of devices to induce or coerce submission of controversies to adjudication instead of sanctions, of regulation of self-help and self-redress instead of a general prohibition thereof, and of mechanical modes of trial which at any rate do not admit of argument instead of rational modes of trial involving debate and hence dispute and so tending to defeat the purpose of the legal order. in a society organized on the basis of kinship, in which the greater number of social wants were taken care of by the kin-organizations, there are two sources of friction: the clash of kin-interests, leading to controversies of one kindred with another, and the kinless man, for whom no kin-organization is responsible, who also has no kin-organization to stand behind him in asserting his claims. peace between kindreds and peace between clansmen and the growing mass of non-gentile population is the unsatisfied social want to which politically organized society must address itself. the system of organized kindreds gradually breaks down. groups of kinsmen cease to be the fundamental social units. kin-organization is replaced by political organization as the primary agency of social control. the legal unit comes to be the free citizen or the free man. in this transition regulation of self-redress and prevention of private war among those who have no strong clan-organizations to control them or respond for them are demanded by the general security. the means of satisfying these social wants are found in a legal order conceived solely in terms of keeping the peace. greek philosophers came to conceive of the general security in broader terms and to think of the end of the legal order as preservation of the social _status quo_. they came to think of maintaining the general security mediately through the security of social institutions. they thought of law as a device to keep each man in his appointed groove in society and thus prevent friction with his fellows. the virtue on which they insisted was _sophrosyne_, knowing the limits which nature fixes for human conduct and keeping within them. the vice which they denounced was _hybris_, wilful bondbreaking--wilful transgression of the socially appointed bounds. this mode of thinking follows the substitution of the city-state political organization of society for the kin-organization. the organized kindreds were still powerful. an aristocracy of the kin-organized and kin-conscious, on the one hand, and a mass of those who had lost or severed their ties of kinship, or had come from without, on the other hand, were in continual struggle for social and political mastery. also the politically ambitious individual and the masterful aristocrat were continually threatening the none too stable political organization through which the general security got a precarious protection. the chief social want, which no other social institution could satisfy, was the security of social institutions generally. in the form of maintenance of the social _status quo_ this became the greek and thence the roman and medieval conception of the end of law. transition from the idea of law as a device to keep the peace to the idea of law as a device to maintain the social _status quo_ may be seen in the proposition of heraclitus, that men should fight for their laws as for the walls of their city. in plato the idea of maintaining the social order through the law is fully developed. the actual social order was by no means what it should be. men were to be reclassified and everyone assigned to the class for which he was best fitted. but when the classification and the assignment had been made the law was to keep him there. it was not a device to set him free that he might find his own level by free competition with his fellows and free experiment with his natural powers. it was a device to prevent such disturbances of the social order by holding each individual to his appointed place. as plato puts it, the shoemaker is to be only a shoemaker and not a pilot also; the farmer is to be only a farmer and not a judge as well; the soldier is to be only a soldier and not a man of business besides; and if a universal genius who through wisdom can be everything and do everything comes to the ideal city-state, he is to be required to move on. aristotle puts the same idea in another way, asserting that justice is a condition in which each keeps within his appointed sphere; that we first take account of relations of inequality, treating individuals according to their worth, and then secondarily of relations of equality in the classes into which their worth requires them to be assigned. when st. paul exhorted wives to obey their husbands, and servants to obey their masters, and thus everyone to exert himself to do his duty in the class where the social order had put him, he expressed this greek conception of the end of law. roman lawyers made the greek philosophical conception into a juristic theory. for the famous three precepts to which the law is reduced in justinian's institutes come to this: everyone is to live honorably; he is to "preserve moral worth in his own person" by conforming to the conventions of the social order. everyone is to respect the personality of others; he is not to interfere with those interests and powers of action, conceded to others by the social order, which make up their legal personality. everyone is to render to everyone else his own; he is to respect the acquired rights of others. the social system has defined certain things as belonging to each individual. justice is defined in the institutes as the set and constant purpose of giving him these things. it consists in rendering them to him and in not interfering with his having and using them within the defined limits. this is a legal development of the greek idea of harmoniously maintaining the social _status quo_. the later eastern empire carried it to the extreme. stability was to be secured by rigidly keeping everyone to his trade or calling and his descendants were to follow him therein. thus the harmony of society and the social order would not be disturbed by individual ambition. in the middle ages the primitive idea of law as designed only to keep the peace came back with germanic law. but the study of roman law presently taught the roman version of the greek conception and the legal order was thought of once more as an orderly maintenance of the social _status quo_. this conception answered to the needs of medieval society, in which men had found relief from anarchy and violence in relations of service and protection and a social organization which classified men in terms of such relations and required them to be held to their functions as so determined. where the greeks thought of a stationary society corrected from time to time with reference to its nature or ideal, the middle ages thought of a stationary society resting upon authority and determined by custom or tradition. to each, law was a system of precepts existing to maintain this stationary society as it was. in the feudal social order reciprocal duties involved in relations established by tradition and taken to rest on authority were the significant legal institutions. with the gradual disintegration of this order and the growing importance of the individual in a society engaged in discovery, colonization and trade, to secure the claims of individuals to assert themselves freely in the new fields of human activity which were opening on every side became a more pressing social want than to maintain the social institutions by which the system of reciprocal duties was enforced and the relations involving those duties were preserved. men did not so much desire that others perform for them the duties owing in some relation, as that others keep hands off while they achieved what they might for themselves in a world that continually afforded new opportunities to the active and the daring. the demand was no longer that men be kept in their appointed grooves. friction and waste were apprehended, not from men getting out of these grooves, but from attempts to hold them there by means devised to meet the needs of a different social order whereby they were made to chafe under arbitrary restraint and their powers were not utilized in the discovery and exploitation of the resources of nature, to which human powers were to be devoted in the succeeding centuries. accordingly the end of law comes to be conceived as a making possible of the maximum of individual free self-assertion. transition to the newer way of thinking may be seen in the spanish jurist-theologians of the sixteenth century. their juristic theory was one of natural limits of activity in the relations of individuals with each other, that is, of limits to human action which expressed the rational ideal of man as a moral creature and were imposed upon men by reason. this theory differs significantly from the idea of antiquity, although it goes by the old name. the greeks thought of a system of limiting men's activities in order that each might be kept in the place for which he was best fitted by nature--the place in which he might realize an ideal form of his capacities--and thus to preserve the social order as it stands or as it shall stand after a rearrangement. the sixteenth-century jurists of the counter-reformation held that men's activities were naturally limited, and hence that positive law might and should limit them in the interest of other men's activities, because all men have freedom of will and ability to direct themselves to conscious ends. where aristotle thought of inequalities arising from the different worth of individual men and their different capacities for the things which the social order called for, these jurists thought of a natural (i.e., ideal) equality, involved in the like freedom of will and the like power of conscious employment of one's faculties inherent in all men. hence law did not exist to maintain the social _status quo_ with all its arbitrary restraints on the will and on employment of individual powers; it existed rather to maintain the natural equality which often was threatened or impaired by the traditional restrictions on individual activity. since this natural equality was conceived positively as an ideal equality in opportunity to do things, it could easily pass into a conception of free individual self-assertion as the thing sought, and of the legal order as existing to make possible the maximum thereof in a world abounding in undiscovered resources, undeveloped lands and unharnessed natural forces. the latter idea took form in the seventeenth century and prevailed for two centuries thereafter, culminating in the juristic thought of the last generation. law as a securing of natural equality became law as a securing of natural rights. the nature of man was expressed by certain qualities possessed by him as a moral, rational creature. the limitations on human activity, of which the spanish jurist-theologians had written, got their warrant from the inherent moral qualities of men which made it right for them to have certain things and do certain things. these were their natural rights and the law existed simply to protect and give effect to these rights. there was to be no restraint for any other purpose. except as they were to be compelled to respect the rights of others, which the natural man or ideal man would do without compulsion as a matter of reason, men were to be left free. in the nineteenth century this mode of thought takes a metaphysical turn. the ultimate thing for juristic purposes is the individual consciousness. the social problem is to reconcile conflicting free wills of conscious individuals independently asserting their wills in the varying activities of life. the natural equality becomes an equality in freedom of will. kant rationalized the law in these terms as a system of principles or universal rules, to be applied to human action, whereby the free will of the actor may co-exist along with the free will of everyone else. hegel rationalized the law in these terms as a system of principles wherein and whereby the idea of liberty was realizing in human experience. bentham rationalized it as a body of rules, laid down and enforced by the state's authority, whereby the maximum of happiness, conceived in terms of free self-assertion, was secured to each individual. its end was to make possible the maximum of free individual action consistent with general free individual action. spencer rationalized it as a body of rules, formulating the "government of the living by the dead," whereby men sought to promote the liberty of each limited only by the like liberty of all. in any of these ways of putting it, the end of law is to secure the greatest possible general individual self-assertion; to let men do freely everything they may consistently with a like free doing of everything they may by their fellow men. this is indeed a philosophy of law for discoverers and colonizers and pioneers and traders and entrepreneurs and captains of industry. until the world became crowded, it served well to eliminate friction and to promote the widest discovery and utilization of the natural resources of human existence. looking back at the history of this conception, which has governed theories of the end of law for more than two hundred years, we may note that it has been put to three uses. it has been used as a means of clearing away the restraints upon free economic activity which accumulated during the middle ages as incidents of the system of relational duties and as expressions of the idea of holding men to their place in a static social order. this negative side played an important part in the english legislative reform movement in the last century. the english utilitarians insisted upon removal of all restrictions upon individual free action beyond those necessary for securing like freedom on the part of others. this, they said, was the end of legislation. again it has been used as a constructive idea, as in the seventeenth and eighteenth centuries, when a commercial law which gave effect to what men did as they willed it, which looked at intention and not at form, which interpreted the general security in terms of the security of transactions and sought to effectuate the will of individuals to bring about legal results, was developed out of roman law and the custom of merchants through juristic theories of natural law. finally it was used as a stabilizing idea, as in the latter part of the nineteenth century, when men proved that law was an evil, even if a necessary evil, that there should be as little law made as possible, since all law involved restraint upon free exertion of the will, and hence that jurist and legislator should be content to leave things legal as they are and allow the individual "to work out in freedom his own happiness or misery" on that basis. when this last stage in the development of the idea of law as existing to promote or permit the maximum of free individual self-assertion had been reached, the juristic possibilities of the conception had been exhausted. there were no more continents to discover. natural resources had been discovered and exploited and the need was for conservation of what remained available. the forces of nature had been harnessed to human use. industrial development had reached large proportions, and organization and division of labor in our economic order had gone so far that anyone who would could no longer go forth freely and do anything which a restless imagination and daring ambition suggested to him as a means of gain. although lawyers went on repeating the old formula, the law began to move in another direction. the freedom of the owner of property to do upon it whatever he liked, so he did not overstep his limits or endanger the public health or safety, began to be restricted. nay, the law began to make men act affirmatively upon their property in fashions which it dictated, where the general health was endangered by non-action. the power to make contracts began to be limited where industrial conditions made abstract freedom of contract defeat rather than advance full individual human life. the power of the owner to dispose freely of his property began to be limited in order to safeguard the security of the social institutions of marriage and the family. freedom of appropriating _res nullius_ and of using _res communes_ came to be abridged in order to conserve the natural resources of society. freedom of engaging in lawful callings came to be restricted, and an elaborate process of education and examination to be imposed upon those who would engage in them, lest there be injury to the public health, safety or morals. a regime in which anyone might freely set up a corporation to engage in a public service, or freely compete in such service, was superseded by one of legal exemption of existing public utilities from destructive competition. in a crowded world, whose resources had been exploited, a system of promoting the maximum of individual self-assertion had come to produce more friction than it relieved and to further rather than to eliminate waste. at the end of the last and the beginning of the present century, a new way of thinking grew up. jurists began to think in terms of human wants or desires rather than of human wills. they began to think that what they had to do was not simply to equalize or harmonize wills, but, if not to equalize, at least to harmonize the satisfaction of wants. they began to weigh or balance and reconcile claims or wants or desires, as formerly they had balanced or reconciled wills. they began to think of the end of law not as a maximum of self-assertion, but as a maximum satisfaction of wants. hence for a time they thought of the problem of ethics, of jurisprudence, and of politics as chiefly one of valuing; as a problem of finding criteria of the relative value of interests. in jurisprudence and politics they saw that we must add practical problems of the possibility of making interests effective through governmental action, judicial or administrative. but the first question was one of the wants to be recognized--of the interests to be recognized and secured. having inventoried the wants or claims or interests which are asserting and for which legal security is sought, we were to value them, select those to be recognized, determine the limits within which they were to be given effect in view of other recognized interests, and ascertain how far we might give them effect by law in view of the inherent limitations upon effective legal action. this mode of thinking may be seen, concealed under different terminologies, in more than one type of jurist in the last three decades. three elements contributed to shift the basis of theories as to the end of law from wills to wants, from a reconciling or harmonizing of wills to a reconciling or harmonizing of wants. the most important part was played by psychology which undermined the foundation of the metaphysical will-philosophy of law. through the movement for unification of the social sciences, economics also played an important part, especially indirectly through the attempts at economic interpretation of legal history, reinforcing psychology by showing the extent to which law had been shaped by the pressure of economic wants. also the differentiation of society, involved in industrial organization, was no mean factor, when classes came to exist in which claims to a minimum human existence, under the standards of the given civilization, became more pressing than claims to self-assertion. attention was turned from the nature of law to its purpose, and a functional attitude, a tendency to measure legal rules and doctrines and institutions by the extent to which they further or achieve the ends for which law exists, began to replace the older method of judging law by criteria drawn from itself. in this respect the thought of the present is more like that of the seventeenth and eighteenth centuries than that of the nineteenth century. french writers have described this phenomenon as a "revival of juridical idealism." but in truth the social utilitarianism of today and the natural-law philosophy of the seventeenth and eighteenth centuries have only this in common: each has its attention fixed upon phenomena of growth; each seeks to direct and further conscious improvement of the law. in its earlier form social-utilitarianism, in common with all nineteenth-century philosophies of law, was too absolute. its teleological theory was to show us what actually and necessarily took place in lawmaking rather than what we were seeking to bring about. its service to the philosophy of law was in compelling us to give over the ambiguous term "right" and to distinguish between the claims or wants or demands, existing independently of law, the legally recognized or delimited claims or wants or demands, and the legal institutions, which broadly go by the name of legal rights, whereby the claims when recognized and delimited are secured. also it first made clear how much the task of the lawmaker is one of compromise. to the law-of-nature school, lawmaking was but an absolute development of absolute principles. a complete logical development of the content implicit in each natural right would give a body of law adequate to every time and place. it is true an idea of compromise did lurk behind the theory of the metaphysical jurists in the nineteenth century. but they sought an absolute harmonizing rather than a working compromise for the time and place. conflicting individual wills were to be reconciled absolutely by a formula which had ultimate and universal authority. when we think of law as existing to secure social interests, so far as they may be secured through an ordering of men and of human relations through the machinery of organized political society, it becomes apparent that we may reach a practicable system of compromises of conflicting human desires here and now, by means of a mental picture of giving effect to as much as we can, without believing that we have a perfect solution for all time and for every place. as the neo-kantians put it, we may formulate the social ideal of the time and place and try juristic problems thereby without believing ourselves competent to lay out a social and political and legal chart for all time. as the neo-hegelians put it, we may discover and formulate the jural postulates of the civilization of the time and place without assuming that those postulates are a complete and final picture of ultimate law, by which it must be measured for all time. social utilitarianism has stood in need of correction both from psychology and from sociology. it must be recognized that lawmaking and adjudication are not in fact determined precisely by a weighing of interests. in practice the pressure of wants, demands, desires, will warp the actual compromises made by the legal system this way or that. in order to maintain the general security we endeavor in every way to minimize this warping. but one needs only to look below the surface of the law anywhere at any time to see it going on, even if covered up by mechanical devices to make the process appear an absolute one and the result a predetermined one. we may not expect that the compromises made and enforced by the legal order will always and infallibly give effect to any picture we may make of the nature or ends of the process of making and enforcing them. yet there will be less of this subconscious warping if we have a clear picture before us of what we are seeking to do and to what end, and if we build in the image thereof so far as we consciously build and shape the law. difficulties arise chiefly in connection with criteria of value. if we say that interests are to be catalogued or inventoried, that they are then to be valued, that those which are found to be of requisite value are to be recognized legally and given effect within limits determined by the valuation, so far as inherent difficulties in effective legal securing of interests will permit, the question arises at once, how shall we do this work of valuing? philosophers have devoted much ingenuity to the discovery of some method of getting at the intrinsic importance of various interests, so that an absolute formula may be reached in accordance wherewith it may be assured that the weightier interests intrinsically shall prevail. but i am skeptical as to the possibility of an absolute judgment. we are confronted at this point by a fundamental question of social and political philosophy. i do not believe the jurist has to do more than recognize the problem and perceive that it is presented to him as one of securing all social interests so far as he may, of maintaining a balance or harmony among them that is compatible with the securing of all of them. the last century preferred the general security. the present century has shown many signs of preferring the individual moral and social life. i doubt whether such preferences can maintain themselves. social utilitarians would say, weigh the several interests in terms of the end of law. but have we any given to us absolutely? is the end of law anything less than to do whatever may be achieved thereby to satisfy human desires? are the limits any other than those imposed by the tools with which we work, whereby we may lose more than we gain, if we attempt to apply them in certain situations? if so, there is always a possibility of improved tools. the greek philosopher who said that the only possible subjects of lawsuit were "insult, injury and homicide," was as dogmatic as herbert spencer, who conceived of sanitary laws and housing laws in our large cities as quite outside the domain of the legal order. better legal machinery extends the field of legal effectiveness as better machinery has extended the field of industrial effectiveness. i do not mean that the law should interfere as of course in every human relation and in every situation where some one chances to think a social want may be satisfied thereby. experience has shown abundantly how futile legal machinery may be in its attempts to secure certain kinds of interests. what i do say is, that if in any field of human conduct or in any human relation the law, with such machinery as it has, may satisfy a social want without a disproportionate sacrifice of other claims, there is no eternal limitation inherent in the nature of things, there are no bounds imposed at creation, to stand in the way of its doing so. let us apply some of the other theories which are now current. the neo-hegelians say: try the claims in terms of civilization, in terms of the development of human powers to the most of which they are capable--the most complete human mastery of nature, both human nature and external nature. the neo-kantians say: try them in terms of a community of free-willing men as the social ideal. duguit says: try them in terms of social interdependence and social function. do they promote or do they impede social interdependence through similarity of interest and division of labor? in these formulas do we really get away from the problem of a balance compatible with maintaining all the interests, with responding to all the wants and claims, which are involved in civilized social existence? for the purpose of understanding the law of today i am content with a picture of satisfying as much of the whole body of human wants as we may with the least sacrifice. i am content to think of law as a social institution to satisfy social wants--the claims and demands involved in the existence of civilized society--by giving effect to as much as we may with the least sacrifice, so far as such wants may be satisfied or such claims given effect by an ordering of human conduct through politically organized society. for present purposes i am content to see in legal history the record of a continually wider recognizing and satisfying of human wants or claims or desires through social control; a more embracing and more effective securing of social interests; a continually more complete and effective elimination of waste and precluding of friction in human enjoyment of the goods of existence--in short, a continually more efficacious social engineering. iii the application of law three steps are involved in the adjudication of a controversy according to law: (1) finding the law, ascertaining which of the many rules in the legal system is to be applied, or, if none is applicable, reaching a rule for the cause (which may or may not stand as a rule for subsequent cases) on the basis of given materials in some way which the legal system points out; (2) interpreting the rule so chosen or ascertained, that is, determining its meaning as it was framed and with respect to its intended scope; (3) applying to the cause in hand the rule so found and interpreted. in the past these have been confused under the name of interpretation. it was assumed that the function of the judge consisted simply in interpreting an authoritatively given rule of wholly extra-judicial origin by an exact process of deducing its logically implied content and in mechanically applying the rule so given and interpreted. this assumption has its origin in the stage of the strict law in the attempt to escape from the overdetail on the one hand, and the vague sententiousness on the other hand, which are characteristic of primitive law. for the most part primitive law is made up of simple, precise, detailed rules for definite narrowly defined situations. it has no general principles. the first step toward a science of law is the making of distinctions between what comes within and what does not come within the legal meaning of a rule. but a body of primitive law also often contains a certain number of sententious legal proverbs, put in striking form so as to stick in the memory, but vague in their content. the strict law by means of a conception of results obtained inevitably from fixed rules and undeviating remedial proceedings seeks relief from the uncertainty inherent in the finding of a larger content for overdetailed special rules through differentiation of cases and the application of legal proverbial sayings through the "equity of the tribunal." it conceives of application of law as involving nothing but a mechanical fitting of the case with the strait-jacket of rule or remedy. the inevitable adjustments and extendings and limitations, which an attempt to administer justice in this way must involve, are covered up by a fiction of interpretation in order to maintain the general security. philosophical rationalizing of the attempt to avoid the overpersonal administration of justice incident to the partial reversion to justice without law in the stage of equity and natural law, reinforced the assumption that judicial application of law was a mechanical process and was but a phase of interpretation. in the eighteenth century it was given scientific form in the theory of separation of powers. the legislative organ made laws. the executive administered them. the judiciary applied them to the decision of controversies. it was admitted in anglo-american legal thinking that courts must interpret in order to apply. but the interpretation was taken not to be in any wise a lawmaking and the application was taken not to involve any administrative element and to be wholly mechanical. on the continent interpretation so as to make a binding rule for future cases was deemed to belong only to the legislator. the maturity of law was not willing to admit that judge or jurist could make anything. it was not the least service of the analytical jurisprudence of the last century to show that the greater part of what goes by the name of interpretation in this way of thinking is really a lawmaking process, a supplying of new law where no rule or no sufficient rule is at hand. "the fact is," says gray most truly, "that the difficulties of so-called interpretation arise when the legislature has had no meaning at all; when the question which is raised on the statute never occurred to it; when what the judges have to do is, not to determine what the legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind had the point been present." the attempt to maintain the separation of powers by constitutional prohibitions has pointed to the same lesson from another side. lawmaking, administration and adjudication cannot be rigidly fenced off one from the other and turned over each to a separate agency as its exclusive field. there is rather a division of labor as to typical cases and a practical or historical apportionment of the rest. finding the law may consist merely in laying hold of a prescribed text of a code or statute. in that event the tribunal must proceed to determine the meaning of the rule and to apply it. but many cases are not so simple. more than one text is at hand which might apply; more than one rule is potentially applicable, and the parties are contending which shall be made the basis of a decision. in that event the several rules must be interpreted in order that intelligent selection may be made. often the genuine interpretation of the existing rules shows that none is adequate to cover the case and that what is in effect, if not in theory, a new one must be supplied. attempts to foreclose this process by minute, detailed legislation have failed signally, as, for example, in the overgrown code of civil procedure in new york. providing of a rule by which to decide the cause is a necessary element in the determination of a large proportion of the causes that come before our higher tribunals, and it is often because a rule must be provided that the parties are not content to abide the decision of the court of first instance. cases calling for genuine interpretation are relatively few and simple. moreover genuine interpretation and lawmaking under the guise of interpretation run into one another. in other words, the judicial function and the legislative function run into one another. it is the function of the legislative organ to make laws. but from the nature of the case it cannot make laws so complete and all-embracing that the judicial organ will not be obliged to exercise a certain lawmaking function also. the latter will rightly consider this a subordinate function. it will take it to be one of supplementing, developing and shaping given materials by means of a given technique. none the less it is a necessary part of judicial power. pushed to the extreme that regards all judicial lawmaking as unconstitutional usurpation, our political theory, a philosophical classification made over by imperfect generalization from the british constitution as it was in the seventeenth century, has served merely to intrench in the professional mind the dogma of the historical school, that legislative lawmaking is a subordinate function and exists only to supplement the traditional element of the legal system here and there and to set the judicial or juristic tradition now and then in the right path as to some particular item where it had gone astray. in anglo-american law we do not think of analogical development of the traditional materials of the legal system as interpretation. in roman-law countries, where the law is made up of codes supplemented and explained by the codified roman law of justinian and modern usage on the basis thereof, which stands as the common law, it seems clear enough that analogical application whether of a section of the code or of a text of the roman law is essentially the same process. both are called interpretation. as our common law is not in the form of authoritative texts, the nature of the process that goes on when a leading case is applied by analogy, or limited in its application, or distinguished, is concealed. it does not seem on the surface to be the same process as when a text of the digest is so applied or limited or distinguished. hence it has been easy for us to assume that courts did no more than genuinely interpret legislative texts and deduce the logical content of authoritatively established traditional principles. it has been easy to accept a political theory, proceeding on the dogma of separation of powers, and to lay down that courts only interpret and apply, that all making of law must come from the legislature, that courts must "take the law as they find it," as if they could always find it ready-made for every case. it has been easy also to accept a juristic theory that law cannot be made; that it may only be found, and that the process of finding it is a matter purely of observation and logic, involving no creative element. if we really believed this pious fiction, it would argue little faith in the logical powers of the bench in view of the diversity of judicially asserted doctrines on the same point which so frequently exist in our case law and the widely different opinions of our best judges with respect to them. as interpretation is difficult, when it is difficult, just because the legislature had no actual intent to ascertain, so the finding of the common law on a new point is difficult because there is no rule of law to find. the judicial and the legislative functions run together also in judicial ascertainment of the common law by analogical application of decided cases. as interpretation on the one side runs into lawmaking and so the judicial function runs into the legislative function, on the other side interpretation runs into application and so the judicial function runs into the administrative or executive. typically judicial treatment of a controversy is a measuring of it by a rule in order to reach a universal solution for a class of causes of which the cause in hand is but an example. typically administrative treatment of a situation is a disposition of it as a unique occurrence, an individualization whereby effect is given to its special rather than to its general features. but administration cannot ignore the universal aspects of situations without endangering the general security. nor may judicial decision ignore their special aspects and exclude all individualization in application without sacrificing the social interest in the individual life through making justice too wooden and mechanical. the idea that there is no administrative element in the judicial decision of causes and that judicial application of law should be a purely mechanical process goes back to aristotle's politics. writing before a strict law had developed, in what may be called the highest point of development of primitive law, when the personal character and feelings for the time being of kings or magistrates or dicasts played so large a part in the actual workings of legal justice, aristotle sought relief through a distinction between the administrative and the judicial. he conceived that discretion was an administrative attribute. in administration regard was to be had to times and men and special circumstances. the executive was to use a wise discretion in adjusting the machinery of government to actual situations as they arose. on the other hand, he conceived that a court should have no discretion. to him the judicial office was a procrustean one of fitting each case to the legal bed, if necessary by a surgical operation. such a conception met the needs of the strict law. in a stage of legal maturity it was suited to the byzantine theory of law as the will of the emperor and of the judge as the emperor's delegate to apply and give effect to that will. in the middle ages it had a sufficient basis in authority and in the needs of a period of strict law. later it fitted well into the byzantine theory of lawmaking which french publicists adopted and made current in the seventeenth and eighteenth centuries. in the united states it seemed to be required by our constitutional provisions for a separation of powers. but in practice it has broken down no less completely than the analogous idea of entire separation of the judicial from the lawmaking function. almost all of the problems of jurisprudence come down to a fundamental one of rule and discretion, of administration of justice by law and administration of justice by the more or less trained intuition of experienced magistrates. controversies as to the nature of law, whether the traditional element or the imperative element of legal systems is the typical law, controversies as to the nature of lawmaking, whether the law is found by judicial empiricism or made by conscious legislation, and controversies as to the bases of law's authority, whether in reason and science on the one hand or in command and sovereign will on the other hand, get their significance from their bearing upon this question. controversies as to the relation of law and morals, as to the distinction of law and equity, as to the province of the court and of the jury, as to fixed rule or wide judicial power in procedure, and as to judicial sentence and administrative individualization in punitive justice are but forms of this fundamental problem. this is not the place to discuss that problem. suffice it to say that both are necessary elements in the administration of justice and that instead of eliminating either, we must partition the field between them. but it has been assumed that one or the other must govern exclusively, and there has been a continual movement in legal history back and forth between wide discretion and strict detailed rule, between justice without law, as it were, and justice according to law. the power of the magistrate has been a liberalizing agency in periods of growth. in the stage of equity and natural law, a stage of infusion of moral ideas from without into the law, the power of the magistrate to give legal force to his purely moral ideas was a chief instrument. today we rely largely upon administrative boards and commissions to give legal force to ideas which the law ignores. on the other hand rule and form with no margin of application have been the main reliance of periods of stability. the strict law sought to leave nothing to the judge beyond seeing whether the letter had been complied with. the nineteenth century abhorred judicial discretion and sought to exclude the administrative element from the domain of judicial justice. yet a certain field of justice without law always remained and by one device or another the balance of the supposedly excluded administrative element was preserved. in the strict law individualization was to be excluded by hard and fast mechanical procedure. in practice this procedure was corrected and the balance between rule and discretion, between the legal and the administrative, was restored by fictions and by an executive dispensing power. roman equity has its origin in the _imperium_ of the _praetor_--his royal power to dispense with the strict law in particular situations. also english equity has its origin in the royal power of discretionary application of law and dispensing with law in particular cases, misuse of which as a political institution was one of the causes of the downfall of the stuarts. thus we get a third agency for restoring the balance in the form of systematic interposition of praetor or chancellor on equitable grounds, leading to a system of equity. carried too far in the stage of equity and natural law, overdevelopment of the administrative element brings about a reaction and in the maturity of law individualization is pushed to the wall once more. yet this elimination of the administrative takes place more in theory and in appearance than in reality. for justice comes to be administered in large measure through the application of legal standards which admit of a wide margin for the facts of particular cases, and the application of these standards is committed to laymen or to the discretion of the tribunal. moreover a certain judicial individualization goes on. partly this takes the form of a margin of discretionary application of equitable remedies, handed down from the stage of equity and natural law. partly it takes the form of ascertainment of the facts with reference to the legal result desired in view of the legal rule or of choice between competing rules in effect covering the same ground, although nominally for distinct situations. in other words, a more subtle fiction does for the maturity of law what is done for the strict law by its relatively crude procedural fictions. of these five agencies for preserving the administrative element in judicial justice, in periods when legal theory excludes it, two call for special consideration. it is usual to describe law as an aggregate of rules. but unless the word rule is used in so wide a sense as to be misleading, such a definition, framed with reference to codes or by jurists whose eyes were fixed upon the law of property, gives an inadequate picture of the manifold components of a modern legal system. rules, that is, definite, detailed provisions for definite, detailed states of fact, are the main reliance of the beginnings of law. in the maturity of law they are employed chiefly in situations where there is exceptional need of certainty in order to uphold the economic order. with the advent of legal writing and juristic theory in the transition from the strict law to equity and natural law, a second element develops and becomes a controlling factor in the administration of justice. in place of detailed rules precisely determining what shall take place upon a precisely detailed state of facts, reliance is had upon general premises for judicial and juristic reasoning. these legal principles, as we call them, are made use of to supply new rules, to interpret old ones, to meet new situations, to measure the scope and application of rules and standards and to reconcile them when they conflict or overlap. later, when juristic study seeks to put the materials of the law in order, a third element develops, which may be called legal conceptions. these are more or less exactly defined types, to which we refer cases or by which we classify them, so that when a state of facts is classified we may attribute thereto the legal consequences attaching to the type. all of these admit of mechanical or rigidly logical application. a fourth element, however, which plays a great part in the everyday administration of justice, is of quite another character. legal standards of conduct appear first in roman equity. in certain cases of transactions or relations involving good faith, the formula was made to read that the defendant was to be condemned to that which in good faith he ought to give or do for or render to the plaintiff. thus the judge had a margin of discretion to determine what good faith called for and in cicero's time the greatest lawyer of the day thought these _actiones bonae fidei_ required a strong judge because of the dangerous power which they allowed him. from this procedural device, roman lawyers worked out certain standards or measures of conduct, such as what an upright and diligent head of a family would do, or the way in which a prudent and diligent husbandman would use his land. in similar fashion english equity worked out a standard of fair conduct on the part of a fiduciary. later the anglo-american law of torts worked out, as a measure for those who are pursuing some affirmative course of conduct, the standard of what a reasonable, prudent man would do under the circumstances. also the law of public utilities worked out standards of reasonable service, reasonable facilities, reasonable incidents of the service and the like. in all these cases the rule is that the conduct of one who acts must come up to the requirements of the standard. yet the significant thing is not the fixed rule but the margin of discretion involved in the standard and its regard for the circumstances of the individual case. for three characteristics may be seen in legal standards: (1) they all involve a certain moral judgment upon conduct. it is to be "fair," or "conscientious," or "reasonable," or "prudent," or "diligent." (2) they do not call for exact legal knowledge exactly applied, but for common sense about common things or trained intuition about things outside of everyone's experience. (3) they are not formulated absolutely and given an exact content, either by legislation or by judicial decision, but are relative to times and places and circumstances and are to be applied with reference to the facts of the case in hand. they recognize that within the bounds fixed each case is to a certain extent unique. in the reaction from equity and natural law, and particularly in the nineteenth century, these standards were distrusted. lord camden's saying that the discretion of a judge was "the law of tyrants," that it was different in different men, was "casual" and dependent upon temperament, has in it the whole spirit of the maturity of law. american state courts sought to turn the principles by which the chancellors were wont to exercise their discretion into hard and fast rules of jurisdiction. they sought to reduce the standard of reasonable care to a set of hard and fast rules. if one crossed a railroad, he must "stop, look and listen." it was negligence _per se_ to get on or off a moving car, to have part of the body protruding from a railroad car, and the like. also they sought to put the duties of public utilities in the form of definite rules with a detailed, authoritatively fixed content. all these attempts to do away with the margin of application involved in legal standards broke down. the chief result was a reaction in the course of which many states turned over all questions of negligence to juries, free even from effective advice from the bench, while many other jurisdictions have been turning over subject after subject to administrative boards and commissions to be dealt with for a season without law. in any event, whether the standard of due care in an action for negligence is applying by a jury, or the standard of reasonable facilities for transportation is applying by a public service commission, the process is one of judging of the quality of a bit of conduct under its special circumstances and with reference to ideas of fairness entertained by the layman or the ideas of what is reasonable entertained by the more or less expert commissioner. common sense, experience and intuition are relied upon, not technical rule and scrupulously mechanical application. we are familiar with judicial individualization in the administration of equitable remedies. another form, namely, individualization through latitude of application under the guise of choice or ascertainment of a rule, is concealed by the fiction of the logical completeness of the legal system and the mechanical, logical infallibility of the logical process whereby the predetermined rules implicit in the given legal materials are deduced and applied. to a large and apparently growing extent the practice of our application of law has been that jurors or courts, as the case may be, take the rules of law as a general guide, determine what the equities of the cause demand, and contrive to find a verdict or render a judgment accordingly, wrenching the law no more than is necessary. many courts today are suspected of ascertaining what the equities of a controversy require, and then raking up adjudicated cases to justify the result desired. often formulas are conveniently elastic so that they may or may not apply. often rules of contrary tenor overlap, leaving a convenient no-man's-land wherein cases may be decided either way according to which rule the court chooses in order to reach a result arrived at on other grounds. occasionally a judge is found who acknowledges frankly that he looks chiefly at the ethical situation between the parties and does not allow the law to interfere therewith beyond what is inevitable. thus we have in fact a crude equitable application, a crude individualization, throughout the field of judicial administration of justice. it is assumed by courts more widely than we suspect, or at least, more widely than we like to acknowledge. ostensibly there is no such power. but when one looks beneath the surface of the law reports, the process reveals itself under the name of "implication" or in the guise of two lines of decisions of the same tribunal upon the same point from which it may choose at will, or in the form of what have been termed "soft spots" in the law--spots where the lines are so drawn by the adjudicated cases that the court may go either way as the ethical exigencies of the special circumstances of the case in hand may require, with no apparent transgression of what purport to be hard and fast rules. such has been the result of attempts to exclude the administrative element in adjudication. in theory there is no such thing except with respect to equitable remedies, where it exists for historical reasons. in practice there is a great deal of it, and that in a form which is unhappily destructive of certainty and uniformity. necessary as it is, the method by which we attain a needed individualization is injurious to respect for law. if the courts do not respect the law, who will? there is no exclusive cause of the current american attitude toward the law. but judicial evasion and warping of the law, in order to secure in practice a freedom of judicial action not conceded in theory, is certainly one cause. we need a theory which recognizes the administrative element as a legitimate part of the judicial function and insists that individualization in the application of legal precepts is no less important than the contents of those precepts themselves. three theories of application of law obtain in the legal science of today. the theory which has the largest following among practitioners and in dogmatic exposition of the law is analytical. it assumes a complete body of law with no gaps and no antinomies, given authority by the state at one stroke and so to be treated as if every item was of the same date as every other. if the law is in the form of a code, its adherents apply the canons of genuine interpretation and ask what the several code provisions mean as they stand, looked at logically rather than historically. they endeavor to find the pre-appointed code pigeonhole for each concrete case, to put the case in hand into it by a purely logical process and to formulate the result in a judgment. if the law is in the form of a body of reported decisions, they assume that those decisions may be treated as if all rendered at the same time and as containing implicitly whatever is necessary to the decision of future causes which they do not express. they may define conceptions or they may declare principles. the logically predetermined decision is contained in the conception to which the facts are referred or involved in the principle within whose scope the facts fall. a purely logical process, exactly analogous to genuine interpretation of a legislative rule, will yield the appropriate conception from given premises or discover the appropriate principle from among those which superficially appear to apply. application is merely formulation in a judgment of the result obtained by analysis of the case and logical development of the premises contained in the reported decisions. among teachers a historical theory has the larger following. if the law is in the form of a code, the code provisions are assumed to be in the main declaratory of the law as it previously existed; the code is regarded as a continuation and development of pre-existing law. all exposition of the code and of any provision thereof must begin by an elaborate inquiry into the pre-existing law and the history and development of the competing juristic theories among which the framers of the code had to choose. if the law is in the form of a body of reported decisions, the later decisions are regarded as but declaring and illustrating the principles to be found by historical study of the older ones; as developing legal conceptions and principles to be found by historical study of the older law. hence all exposition must begin with an elaborate historical inquiry in which the idea that has been unfolding in the course of judicial decision is revealed and the lines are disclosed along which legal development must move. but when the content of the applicable legal precept is discovered in these ways, the method of applying it in no way differs from that which obtains under the analytical theory. the process of application is assumed to be a purely logical one. do the facts come within or fail to come within the legal precept? this is the sole question for the judge. when by historical investigation he has found out what the rule is, he has only to fit it to just and unjust alike. analytical and historical theories of application of law thus seek to exclude the administrative element wholly and their adherents resort to fictions to cover up the judicial individualization which none the less obtains in practice or else ignore it, saying that it is but a result of the imperfect constitution of tribunals or of the ignorance or sloth of those who sit therein. the latter explanation is no more satisfying than the fictions, and a new theory has sprung up of late in continental europe which may be understood best by calling it the equitable theory, since the methods of the english chancellor had much to do with suggesting it. to the adherents of this theory the essential thing is a reasonable and just solution of the individual controversy. they conceive of the legal precept, whether legislative or traditional, as a guide to the judge, leading him toward the just result. but they insist that within wide limits he should be free to deal with the individual case so as to meet the demands of justice between the parties and accord with the reason and moral sense of ordinary men. they insist that application of law is not a purely mechanical process. they contend that it involves not logic only but moral judgments as to particular situations and courses of conduct in view of the special circumstances which are never exactly alike. they insist that such judgments involve intuitions based upon experience and are not to be expressed in definitely formulated rules. they argue that the cause is not to be fitted to the rule but the rule to the cause. much that has been written by advocates of the equitable theory of application of law is extravagant. as usually happens, in reaction from theories going too far in one direction this theory has gone too far in the other. the last century would have eliminated individualization of application. now, as in the sixteenthand seventeenth-century reaction from the strict law, come those who would have nothing else; who would turn over the whole field of judicial justice to administrative methods. if we must choose, if judicial administration of justice must of necessity be wholly mechanical or else wholly administrative, it was a sound instinct of lawyers in the maturity of law that led them to prefer the former. only a saint, such as louis ix under the oak at vincennes, may be trusted with the wide powers of a judge restrained only by a desire for just results in each case to be reached by taking the law for a general guide. and st. louis did not have the crowded calendars that confront the modern judge. but are we required to choose? may we not learn something from the futility of all efforts to administer justice exclusively by either method? may we not find the proper field of each by examining the means through which in fact we achieve an individualization which we deny in theory, and considering the cases in which those means operate most persistently and the actual administration of justice most obstinately refuses to become as mechanical in practice as we expect it to be in theory? in anglo-american law today there are no less than seven agencies for individualizing the application of law. we achieve an individualization in practice: (1) through the discretion of courts in the application of equitable remedies; (2) through legal standards applied to conduct generally when injury results and also to certain relations and callings; (3) through the power of juries to render general verdicts; (4) through latitude of judicial application involved in finding the law; (5) through devices for adjusting penal treatment to the individual offender; (6) through informal methods of judicial administration in petty courts, and (7) through administrative tribunals. the second and fourth have been considered. let us look for a moment at the others. discretion in the exercise of equitable remedies is an outgrowth of the purely personal intervention in extraordinary cases on grounds that appealed to the conscience of the chancellor in which equity jurisdiction has its origin. something of the original flavor of equitable interposition remains in the doctrine of personal bar to relief, and in the ethical quality of some of the maxims which announce policies to be pursued in the exercise of the chancellor's powers. but it was possible for the nineteenth century to reconcile what remained of the chancellor's discretion with its mode of thinking. where the plaintiff's right was legal but the legal remedy was not adequate to secure him in what the legal right entitled him to claim, equity gave a concurrent remedy supplementing the strict law. as the remedy in equity was supplementary and concurrent, in case the chancellor in his discretion kept his hands off, as he would if he felt that he could not bring about an equitable result, the law would still operate. the plaintiff's right was in no wise at the mercy of anyone's discretion. he merely lost an extraordinary and supplementary remedy and was left to the ordinary course of the law. such was the orthodox view of the relation of law and equity. equity did not alter a jot or tittle of the law. it was a remedial system alongside of the law, taking the law for granted and giving legal rights greater efficacy in certain situations. but take the case of a "hard bargain," where the chancellor in his discretion may deny specific performance. in england and in several states the damages at law do not include the value of the bargain where the contract is for the sale of land. hence unless specific performance is granted, the plaintiff's legal right is defeated. it is notorious that bargains appeal differently to different chancellors in this respect. in the hands of some the doctrine as to hard bargains has a tendency to become wooden, as it were. there is a hard and fast rule that certain bargains are "hard" and that equity will not enforce them. in states where the value of the bargain may be recovered at law, it may well be sometimes that the bargain might as well be enforced in equity, if it is not to be cancelled. but the chancellor is not unlikely to wash his hands of a hard case, saying that the court of law is more callous; let that court act, although that court is the same judge with another docket before him. in other hands, the doctrine tends to become ultro-ethical and to impair the security of transactions. in other words, the margin of discretion in application of equitable remedies tends on the one hand to disappear through crystallization of the principles governing its exercise into rigid rules, or on the other hand, to become overpersonal and uncertain and capricious. yet as one reads the reports attentively he cannot doubt that in action it is an important engine of justice; that it is a needed safety valve in the working of our legal system. at common law the chief reliance for individualizing the application of law is the power of juries to render general verdicts, the power to find the facts in such a way as to compel a different result from that which the legal rule strictly applied would require. in appearance there has been no individualization. the judgment follows necessarily and mechanically from the facts upon the record. but the facts found were found in order to reach the result and are by no means necessarily the facts of the actual case. probably this power alone made the common law of master and servant tolerable in the last generation. yet exercise of this power, with respect to which, as lord coke expressed it, "the jurors are chancellors," has made the jury an unsatisfactory tribunal in many classes of cases. it is largely responsible for the practice of repeated new trials which makes the jury a most expensive tribunal. the crude individualization achieved by juries, influenced by emotional appeals, prejudice and the peculiar personal ideas of individual jurors, involves quite as much injustice at one extreme as mechanical application of law by judges at the other extreme. indeed the unchecked discretion of juries, which legislation has brought about in some jurisdictions, is worse than the hobbled court and rigid mechanical application of law from which it is a reaction. our administration of punitive justice is full of devices for individualizing the application of criminal law. our complicated machinery of prosecution involves a great series of mitigating agencies whereby individual offenders may be spared or dealt with leniently. beginning at the bottom there is the discretion of the police as to who and what shall be brought to the judicial mill. next are the wide powers of our prosecuting officers who may ignore offences or offenders, may dismiss proceedings in their earlier stages, may present them to grand juries in such a way that no indictment results, or may enter a _nolle prosequi_ after indictment. even if the public prosecutor desires to prosecute, the grand jury may ignore the charge. if the cause comes to trial, the petit jury may exercise a dispensing power by means of a general verdict. next comes judicial discretion as to sentence, or in some jurisdictions, assessment of punishment by the discretion of the trial jury. upon these are superposed administrative parole or probation and executive power to pardon. the lawyer-politician who practices in the criminal courts knows well how to work upon this complicated machinery so as to enable the professional criminal to escape as well as those or even instead of those for whom these devices were intended. they have been developed to obviate the unhappy results of a theory which would have made the punishment mechanically fit the crime instead of adjusting the penal treatment to the criminal. here, as elsewhere, the attempt to exclude the administrative element has brought about back-handed means of individualization which go beyond the needs of the situation and defeat the purposes of the law. even more striking is the recrudescence of personal government, by way of reaction from an extreme of government of laws and not of men, which is involved in the setting up of administrative tribunals on every hand and for every purpose. the regulation of public utilities, apportionment of the use of the water of running streams among different appropriators, workmen's compensation, the actual duration and nature of punishment for crime, admission to and practice of professions and even of trades, the power to enter or to remain in the country, banking, insurance, unfair competition and restraint of trade, the enforcement of factory laws, of pure food laws, of housing laws and of laws as to protection from fire and the relation of principal and agent, as between farmers and commission merchants, are but some of the subjects which the living law, the law in action, is leaving to executive justice in administrative tribunals. to some extent this is required by the increasing complexity of the social order and the minute division of labor which it involves. yet this complexity and this division of labor developed for generations in which the common-law jealousy of administration was dominant. chiefly our revival of executive justice in the present century is one of those reversions to justice without law which are perennial in legal history. as in the case of like reversions in the past it is the forerunner of growth. it is the first form of reaction from the overrigid application of law in a period of stability. a bad adjustment between law and administration and cumbrous, ineffective and unbusinesslike legal procedure, involving waste of time and money in the mere etiquette of justice, are doing in our time what like conditions did in english law in the middle of the sixteenth century. if we look back at the means of individualizing the application of law which have developed in our legal system, it will be seen that almost without exception they have to do with cases involving the moral quality of individual conduct or of the conduct of enterprises, as distinguished from matters of property and of commercial law. equity uses its powers of individualizing to the best advantage in connection with the conduct of those in whom trust and confidence have been reposed. legal standards are used chiefly in the law of torts, in the law of public utilities and in the law as to fiduciary relations. jury lawlessness is an agency of justice chiefly in connection with the moral quality of conduct where the special circumstances exclude that "intelligence without passion" which, according to aristotle, characterizes the law. it is significant that in england today the civil jury is substantially confined to cases of defamation, malicious prosecution, assault and battery and breach of promise of marriage. judicial individualization through choice of a rule is most noticeable in the law of torts, in the law of domestic relations and in passing upon the conduct of enterprises. the elaborate system of individualization in criminal procedure has to do wholly with individual human conduct. the informal methods of petty courts are meant for tribunals which pass upon conduct in the crowd and hurry of our large cities. the administrative tribunals, which are setting up on every hand, are most called for and prove most effective as means of regulating the conduct of enterprises. a like conclusion is suggested when we look into the related controversy as to the respective provinces of common law and of legislation. inheritance and succession, definition of interests in property and the conveyance thereof, matters of commercial law and the creation, incidents and transfer of obligations have proved a fruitful field for legislation. in these cases the social interest in the general security is the controlling element. but where the questions are not of interests of substance but of the weighing of human conduct and passing upon its moral aspects, legislation has accomplished little. no codification of the law of torts has done more than provide a few significantly broad generalizations. on the other hand, succession to property is everywhere a matter of statute law and commercial law is codified or codifying throughout the world. moreover the common law insists upon its doctrine of _stare decisis_ chiefly in the two cases of property and commercial law. where legislation is effective, there also mechanical application is effective and desirable. where legislation is ineffective, the same difficulties that prevent its satisfactory operation require us to leave a wide margin of discretion in application, as in the standard of the reasonable man in our law of negligence and the standard of the upright and diligent head of a family applied by the roman law, and especially by the modern roman law, to so many questions of fault, where the question is really one of good faith. all attempts to cut down this margin have proved futile. may we not conclude that in the part of the law which has to do immediately with conduct complete justice is not to be attained by the mechanical application of fixed rules? is it not clear that in this part of the administration of justice the trained intuition and disciplined judgment of the judge must be our assurance that causes will be decided on principles of reason and not according to the chance dictates of caprice, and that a due balance will be maintained between the general security and the individual human life? philosophically the apportionment of the field between rule and discretion which is suggested by the use of rules and of standards respectively in modern law has its basis in the respective fields of intelligence and intuition. bergson tells us that the former is more adapted to the inorganic, the latter more to life. likewise rules, where we proceed mechanically, are more adapted to property and to business transactions, and standards; where we proceed upon intuitions, are more adapted to human conduct and to the conduct of enterprises. according to him, intelligence is characterized by "its power of grasping the general element in a situation and relating it to past situations," and this power involves loss of "that perfect mastery of a special situation in which instinct rules." in the law of property and in the law of commercial transactions it is precisely this general element and its relation to past situations that is decisive. the rule, mechanically applied, works by repetition and precludes individuality in results, which would threaten the security of acquisitions and the security of transactions. on the other hand, in the handmade, as distinguished from the machine-made product, the specialized skill of the workman gives us something infinitely more subtle than can be expressed in rules. in law some situations call for the product of hands, not of machines, for they involve not repetition, where the general elements are significant, but unique events, in which the special circumstances are significant. every promissory note is like every other. every fee simple is like every other. every distribution of assets repeats the conditions that have recurred since the statute of distributions. but no two cases of negligence have been alike or ever will be alike. where the call is for individuality in the product of the legal mill, we resort to standards. and the sacrifice of certainty in so doing is more apparent than actual. for the certainty attained by mechanical application of fixed rules to human conduct has always been illusory. iv liability a systematist who would fit the living body of the law to his logical analytical scheme must proceed after the manner of procrustes. indeed, this is true of all science. in life phenomena are unique. the biologist of today sometimes doubts whether there are species and disclaims higher groups as more than conveniences of study. "dividing lines," said a great american naturalist, "do not occur in nature except as accidents." organization and system are logical constructions of the expounder rather than in the external world expounded. they are the means whereby we make our experience of that world intelligible and available. it is with no illusion, therefore, that i am leading you to a juristic _ultima thule_ that i essay a bit of systematic legal science on a philosophical basis. even if it never attains a final system in which the law shall stand fast forever, the continual juristic search for the more inclusive order, the continual juristic struggle for a simpler system that will better order and better reconcile the phenomena of the actual administration of justice, is no vain quest. attempts to understand and to expound legal phenomena lead to generalizations which profoundly affect those phenomena, and criticism of those generalizations, in the light of the phenomena they seek to explain and to which they give rise, enables us to replace them or modify them or supplement them and thus to keep the law a growing instrument for achieving expanding human desires. one of the stock questions of the science of law is the nature and system and philosophical basis of situations in which one may exact from another that he "give or do or furnish something" (to use the roman formula) for the advantage of the former. the classical roman lawyer, thinking in terms of natural law, spoke of a bond or relation of right and law between them whereby the one might justly and legally exact and the other was bound in justice and law to perform. in modern times, thinking, whether he knows it or not, in terms of natural rights and by derivation of legal rights, the analytical jurist speaks of rights _in personam_. the anglo-american lawyer, thinking in terms of procedure, speaks of contracts and torts, using the former term in a wide sense. if pressed, he may refer certain enforceable claims to exact and duties of answering to the exaction to a romanist category of quasi-contract, satisfied to say "quasi" because on analysis they do not comport with his theory of contract, and to say "contract" because procedurally they are enforced _ex contractu_. pressed further, he may be willing to add "quasi tort" for cases of common-law liability without fault and workmen's compensation--"quasi" because there is no fault, "tort" because procedurally the liability is given effect _ex delicto_. but cases of duties enforceable either _ex contractu_ or _ex delicto_ at the option of the pleader and cases where the most astute pleader is hard pushed to choose have driven us to seek something better. obligation, the roman term, meaning the relation of the parties to what the analytical jurists have called a right _in personam_ is an exotic in our law in that sense. moreover the relation is not the significant thing for systematic purposes, as is shown by civilian tendencies in the phrases "active obligation" and "passive obligation" to extend the term from the relation to the capacity or claim to exact and duty to answer to the exaction. the phrase "right _in personam_" and its co-phrase "right _in rem_" are so misleading in their implications, as any teacher soon learns, that we may leave them to the textbooks of analytical jurisprudence. in this lecture, i shall use the simple word "liability" for the situation whereby one may exact legally and the other is legally subjected to the exaction. using the word in that sense, i shall inquire into the philosophical basis of liability and the system of the law on that subject as related to that basis. yellowplush said of spelling that every gentleman was entitled to his own. we have no authoritative institutional book of anglo-american law, enacted by sovereign authority, and hence every teacher of law is entitled to his own terminology. so far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. the idea is put strikingly in the anglo-saxon legal proverb, "buy spear from side or bear it," that is, buy off the feud or fight it out. one who does an injury or stands between an injured person and his vengeance, by protecting a kinsman, a child or a domestic animal that has wrought an injury, must compound for the injury or bear the vengeance of the injured. as the social interest in peace and order--the general security in its lowest terms--comes to be secured more effectively by regulation and ultimate putting down of the feud as a remedy, payment of composition becomes a duty rather than a privilege, or in the case of injuries by persons or things in one's power a duty alternative to a duty of surrendering the offending child or animal. the next step is to measure the composition not in terms of the vengeance to be bought off but in terms of the injury. a final step is to put it in terms of reparation. these steps are taken haltingly and merge into one another, so that we may hear of a "penalty of reparation." but the result is to turn composition for vengeance into reparation for injury. thus recovery of a sum of money by way of penalty for a delict is the historical starting point of liability. one's neighbor whom one had injured or who had been injured by those whom one harbored was not the only personality that might desire vengeance in a primitive society. one might affront the gods, and by one's impiety in so doing might imperil the general security, since the angered gods were not unlikely to hit out indiscriminately and to cast pestilence or hurl lightning upon just and unjust alike in the community which harbored the impious wrongdoer. hence if, in making a promise, one called the gods to witness it was needful that politically organized society, taking over a field of social control exercised by the priesthood, give a legal remedy to the promisee lest he invoke the aid of the gods and jeopardize the general security. again in making a promise one might call the people or the neighborhood to witness and might affront them by calling them to witness in vain. here, too, the peace was threatened and politically organized society might give a remedy to the promisee, lest he invoke the help of his fellow citizens or his neighbors. a common case might be one where a composition was promised in this way for an injury not included in the detailed tariff of compositions that is the staple of ancient "codes." another common case was where one who held another's property for some temporary purpose promised to return it. such a case is lending; for before the days of coined money, the difference between lending a horse to go to the next town and lending ten sheep to enable the borrower to pay a composition is not perceptible. thus another starting point of liability is recovery of a thing certain, or what was originally the same, a sum certain, promised in such wise as to endanger the general security if the promise is not carried out. in roman law, the condiction, which is the type of actions _in personam_, and thus the starting point historically of rights _in personam_ and of theories of obligation, was at first a recovery of a thing certain or a sum certain due upon a promise of this sort. in juristic terms, the central idea of the beginnings of liability is duty to make composition for or otherwise avert wrath arising from the affronted dignity of some personality desirous of vengeance, whether an injured individual, a god or a politically organized society. greek law and roman law give the name of "insult" to legally cognizable injury to personality. insult to a neighbor by injury to him or to one of his household, insult to the gods by impious breach of the promise they had witnessed, insult to the people by wanton disregard of the undertaking solemnly made in their presence, threatened the peace and order of society and called for legal remedy. lawyers begin to generalize and to frame conscious theories in the later part of the stage of the strict law. at first these theories are analytical rather than philosophical. the attempt is to frame general formulas by which the rigid rules of the strict law may be reconciled where they overlap or conflict or may be distinguished in their application where such overlapping or conflict threatens. by this time, the crude beginnings of liability in a duty to compound for insult or affront to man or gods or people, lest they be moved to vengeance, has developed into liability to answer for injuries caused by oneself or done by those persons or those things in one's power, and liability for certain promises made in solemn form. thus the basis of liability has become twofold. it rests on the one hand upon duty to repair injury. it rests on the other hand upon duty to carry out formal undertakings. it is enough for this stage of legal development that all cases of liability may be referred to these two types and that useful distinctions may be reached therefrom. consideration of why one should be held to repair injury, and why he should be held to formal undertakings, belongs to a later stage. juristic theory, beginning in the transition from the strict law to the stage of equity or natural law, becomes a force in the latter stage. as the relations with which the law must deal become more numerous and the situations calling for legal treatment become more complicated, it is no longer possible to have a simple, definite, detailed rule for every sort of case that can come before a tribunal, nor a fixed, absolute form for every legal transaction. hence, under the leadership of philosophical jurists, men turn to logical development of the "nature" or ideal form of situations and to ethical ideas of what "good faith" or "good conscience" demands in particular relations or transactions. the strict law, relying on rule and form, took no account of intention as such. the words took effect quite independently of the thought behind them. but as lawyers began to reflect and to teach something more than a class or professional tradition, as they began to be influenced by philosophy to give over purely mechanical methods and to measure things by reason rather than by arbitrary will, emphasis shifted from form to substance; from the letter to the spirit and intent. the statute was thought of as but the lawmaker's formulation of a principle of natural law. it was not the _uerba_ that were efficacious, as in the strict law, which had inherited the primitive faith in the power of words and thought of the legal formula as if it were a formula of incantation possessing inherent magical force. it was the _ratio iuris_, which transcended words and formulas. so also the traditional rule was not a magic formula discovered by our fathers. it was a customary expression of a principle of natural law. likewise the formal transaction was not a bit of private magic employed to conjure up legal liability. it was the clothing in legally recognized vestments of an intention to do what reason and good faith demand in a given situation. when form and intention concurred the promisor must answer for what he undertook. when the form used did not express or went beyond the intention or was the product of an apparent but not a real intention, the promisee was not to be enriched unjustly at the promisor's expense on the sole basis of the form. moreover the duty was to be one of doing what good faith demanded, not one of doing literally and exactly what the letter of the undertaking called for. and although there was no express undertaking, there might be duties implied in the relation or situation or transaction, viewed as one of good faith, and one might be held to a standard of action because an upright and diligent man, who was his own master, would so act. such is the mode of thinking in the classical period of the roman law and it is closely paralleled by an independent development of juristic thought in the rise of equity and the absorption of the law merchant in our law. it was easy to fit the two categories, delict and formal undertaking, which had come down from the strict law, into the new mode of thought. the typical delict required _dolus_--intentional aggression upon the personality or the substance of another. indeed aquilian _culpa_, in which the fault did not extend to intentional aggression, is a juristic equitable development. hence when the legal was identified with the moral, and such identification is a prime characteristic of this stage, the significant thing in delict seemed to be the moral duty to repair an injury caused by wilful aggression. the legal precept was _alienum non laedere_. also the duty to perform an intentional undertaking seemed to rest on the inherent moral quality of a promise that made it intrinsically binding on an upright man. the legal precept was _suum cuique tribuere_. thus liability seemed to flow from intentional action--whether in the form of aggression or in the form of agreement. the "natural" sources of liability were delict and contract. everything else was assimilated to one or the other of them. liability without fault was quasi-delictal. liability imposed by good faith to prevent unjust enrichment was quasi-contractual. the central idea had become one of the demands of good faith in view of intentional action. in the nineteenth century the conception of liability as resting on intention was put in metaphysical rather than ethical form. law was a realization of the idea of liberty, and existed to bring about the widest possible individual liberty. liberty was the free will in action. hence it was the business of the legal order to give the widest effect to the declared will and to impose no duties except in order to effectuate the will or to reconcile the will of one with the will of others by a universal law. what had been a positive, creative theory of developing liability on the basis of intention, became a negative, restraining, one might say pruning, theory of no liability except on the basis of intention. liability could flow only from culpable conduct or from assumed duties. the abstract individual will was the central point in the theory of liability. if one was not actually culpable and yet established legal precepts which were not to be denied held him answerable, it was because he was "deemed" culpable, the historical legal liability being the proof of culpability. if he had not actually assumed a duty, and yet established legal precepts which were not to be denied held him to answer for it, this must be because he had assumed some relation or professed some calling in which an undertaking to that effect was "implied" or had participated in some situation in which it was "implied,"--the implication being a deduction from the liability. the bases of liability were culpable conduct and legal transaction, and these came down to an ultimate basis in will. the fundamental conception in legal liability was the conception of an act--of a manifestation of the will in the external world. roman law and english law begin with a set of what might be called nominate delicts or nominate torts. in roman law there were _furtum_ (conversion), _rapina_ (forcible conversion) and _iniuria_ (wilful aggression upon personality). all these involved _dolus_, i.e. intentional aggression. the _lex aquilia_ added _damnum iniuria datum_ (wrongful injury to property). later there were added what might be called the equitable delicts of _dolus_ (fraud) and _metus_ (duress). here also there was wilful aggression, and the delict of _dolus_ gets its name from the intentional misleading that characterizes it in roman law as it does deceit in english law. in _damnum iniuria datum_, a wider conception of fault, as distinguished from intentional aggression, grew up by juristic development, and aquilian _culpa_, that is, a fault causing injury to property and therefore actionable on the analogy of the _lex aquilia_, furnished the model for the modern law. all these may be fitted to the will theory and modern systematic writers regularly do so. but noxal liability for injury done by a child or slave or domestic animal did not fit it, nor did the liability of a master of a ship, an innkeeper or a stable keeper to respond without regard to fault. liability for injury done by child or slave or domestic animal was enforced in a noxal action on the analogy of the action which lay for the same injury if done by the defendant in person. hence procedurally it seemed liability for a delict involving intentional aggression, and it was possible to say that there was fault in not restraining the agency that did the injury, although no fault had to be shown nor could absence of fault be shown as a defence. there was fault because there was liability, for all liability grew out of fault. such treadings on the tail of its own argument are very common in legal reasoning. likewise in the case of the absolute liability of the master of a ship, the innkeeper and the stable keeper, the institutional writers could say that they were at fault in not having proper servants, although here also fault need not be established by proof nor could want of fault be made a defence. as procedurally these liabilities arose in actions on the facts of particular cases, the jurists at first lumped them with many other forms of liability, which were not in fact dependent on intention and were enforced in actions _in factum_, as obligations arising from the special facts of cases (_obligationes ex uariis causarum figuris_). later they were called quasi-delictual obligations and they are so designated in the fourfold classification of the institutes. buckland has remarked that in almost all of the liabilities included under quasi-delict in the institutes there is liability at one's peril for the act of another, especially for one's servant, as in the noxal actions, the _actio de deiectis et diffusis_ (for things thrown or poured from buildings upon a way) and the _actio de recepto_ against an innkeeper. in other words, in these cases one was held without regard to fault for injuries incidental to the conduct of certain enterprises or callings and for failure to restrain potentially injurious agencies which one maintained. modern law has given up both the nominate delicts and quasi-delict, as things of any significance. the french civil code made the idea of aquilian _culpa_ into a general theory of delictal liability, saying, "every act of man which causes damage to another obliges him through whose fault it happened to make reparation." in other words, liability is to be based on an act, and it must be a culpable act. act, culpability, causation, damage, were the elements. this simple theory of liability for culpable causation of damage was accepted universally by civilians until late in the nineteenth century and is still orthodox. taken up by text writers on torts in the last half of that century, it had much influence in anglo-american law. but along with this generalization the french code preserved a liability without fault, developed out of the noxal actions, whereby parents and teachers may be held for injuries by minors under their charge, masters for injuries by their apprentices, employers for injuries by employees and those in charge of animals for injuries by such animals. also it provided an absolute liability for injury by a _res ruinosa_, developed out of the roman _cautio damni infecti_. in the case of parents, teachers and masters of apprentices, there is only a presumption of fault. they may escape by showing affirmatively that they were without fault and that what happened could not have been prevented by diligence on their part. in the case of employers no excuse is admitted. the liability is absolute. in the case of animals, fault of the victim, inevitable accident and _vis maior_ may be shown affirmatively by way of defence. in the case of a _res ruinosa_ there is no presumption of fault. but if the structure fell or did injury because of a defect of construction or want of repair, the owner is liable absolutely and may not show that he had no notice of the defect and no reason to suspect it, or that it was not in his power to prevent the structure from falling. thus it will be seen that french law came very near to a logically consistent scheme of liability for fault, and civil liability for fault only, throughout the whole delictal field. employer's liability remained absolute, and liability for animals but little short of absolute. for the rest there was in certain cases an imposition of the burden of proof that there had been no fault, leaving the ultimate liability to rest upon a presumed fault, if want of fault was not established. none the less this, the most thoroughgoing attempt to make delictal liability flow exclusively from culpability--to make it a corollary of fault and of fault only--fell short of complete attainment of its aim. recent french authors do not hesitate to say that the attempt must be given over and that a new theory of civil delictal liability must be worked out. meanwhile the same movement away from the simple theory of delictal liability for culpable causation of damage had taken place elsewhere on the continent. binding had subjected the _culpa-prinzip_ to thorough analysis, and following him it had come to be rejected generally by recent german and swiss jurists. in the common law, as has been said, we begin likewise with a set of nominate torts--assault, battery, imprisonment, trespass on lands, trespass on chattels, conversion, deceit, malicious prosecution, slander and libel--developed procedurally through the action of trespass and the action of trespass on the case. all of these, except trespass on lands, trespass upon possession of chattels and conversion, are cases of intentional injury. trespass on lands, trespass on chattels and conversion involve more than the general security and must be considered in connection with ideas of property. the social interest in security of acquisitions demands that we be able to rely on others keeping off of our lands and not molesting our chattels; that they find out for themselves and at their own risk where they are or with whose chattels they are meddling. but even here there must be an act. if there is no act, there is no liability. to these nominate torts, each with its own special rules, coming down from the strict law, we added a new ground of liability, namely, negligence, going on a principle, not of duty to answer for aggression, but of duty to answer for injuries resulting from falling short of a legal standard of conduct governing affirmative courses of action. some, indeed, sought to give us a "tort of negligence" as a nominate tort. but it was soon recognized that in negligence we have a principle of liability dependent upon a standard, not a tort to be ranged alongside of assault or imprisonment. later, with the rise of doctrines as to injury to advantageous relations and the failure of negligence to account for all unintended harms of which the law actually was taking note, we developed an indefinite number of innominate torts. today with the obsolescence of procedural difficulties, there is no reason why we should not generalize, as the civil law did at the beginning of the last century; and such a generalization was attempted in the last third of the nineteenth century. it became orthodox common law that liability was a corollary of fault. so far as established common-law rules imposed a liability without fault, they were said to be historical exceptions, and some of our courts, under the influence of this theory, were willing to go a long way in abrogating them. liability, without regard to fault, for the acts of servants and employees was reconciled with this theory by the fiction of representation, exposed long ago by mr. justice holmes and later by dr. baty. finally it came to be thought that no liability without fault was not merely common law but was natural law and that any legislative imposition of such liability was arbitrary and unreasonable in itself and hence unconstitutional. on that theory, the new york court of appeals held workmen's compensation unconstitutional, and a minority of the supreme court of the united states recently announced the same proposition. because of its implications for constitutional law, in view of the increasing frequency of legislation imposing responsibility at one's peril in certain enterprises, in the case of certain dangerous agencies and in situations where it is felt that the loss should be borne by all of us rather than by the luckless individual who chances to be hurt, the basis of tort liability has become a question of moment beyond the immediate law of torts. it is a practical question of the first importance, as well as a theoretical question of interest, whether we are to generalize our whole system of tort liability by means of one principle of liability for fault and for fault only, as the french sought to do and as we later sought to do largely under their influence, or, on the other hand, are to admit another source of delictal liability alongside of fault, as the french law does in fact and is coming to do in theory, and as our law has always done in fact. for in our law as it stands one may perceive readily three types of delictual liability: (1) liability for intentional harm, (2) liability for unintentional culpable harm, (3) liability in certain cases for unintended non-culpable harm. the first two comport with the doctrine of no liability without fault. the third cannot be fitted thereto. we must either brand cases of the third type as historical anomalies, of which we are gradually to rid ourselves, or else revise our notions of tort liability. let us remember that the nineteenth century was well advanced before we understood the subject of negligence and that before we had convinced ourselves that no liability without fault was orthodox common law, the highest court of england had given absolute liability a new field by the decision in _rylands_ v. _fletcher_. we are not questioning a long-established dogma in anglo-american administration of justice, therefore, when we ask whether the orthodox theory of the last generation is adequate as an analytical statement of the law that is, or as a philosophical theory of the law that ought to be. my own belief is that it is neither. suppose that instead of beginning with the individual free will we begin with the wants or claims involved in civilized society--as it has been put, with the jural postulates of civilized society. one such postulate, i think we should agree, is that in civilized society men must be able to assume that others will do them no intended injury--that others will commit no intentional aggressions upon them. the savage must move stealthily, avoid the sky-line and go armed. the civilized man assumes that no one will attack him and so moves among his fellow men openly and unarmed, going about his business in a minute division of labor. otherwise there could be no division of labor beyond the differentiation of men of fighting age, as we see it in a primitive society. this postulate is at the foundation of civilized society. everywhere _dolus_ is first dealt with. the system of nominate delicts or nominate torts, both in roman law and in our law, proceeds on this postulate. is it not another such postulate that in civilized society men must be able to assume that their fellow men, when they act affirmatively, will do so with due care, that is with the care which the ordinary understanding and moral sense of the community exacts, with respect to consequences that may reasonably be anticipated? such a postulate is the basis of delictal _culpa_, using _culpa_ in the narrower sense, and of our doctrine of negligence. in roman law and at one time in our law attempts were made to develop this postulate contractually. if in a transaction involving good faith--that is an informal legal transaction--one's conduct fell short of action to which the other party was justified by the understanding of upright men in expecting him to adhere, there was contractual _culpa_; there was a violation of a promise implied in the transaction and consequent liability. we borrowed something of this mode of thought from the romans in our law of bailments and hence think indifferently in terms of tort or contract in that connection, although historically our action for such cases is delictal. in other connections also our law for a time sought to develop this postulate contractually by means of an "implied undertaking to use skill" for which one must answer if his skill fell short of that which the legal standard of affirmative conduct called for under the circumstances. also in the year books an undertaking implied in certain relations or callings to use the skill or diligence which the relation or calling demanded is often made the basis of liability. but here the basis of liability must be found in a relation. the fiction of an undertaking to use the skill or diligence involved in a relation or calling is a juristic way of saying that one who deals with another in such a relation or with another who professes such a calling is justified in assuming the skill and diligence ordinarily involved therein, so that the law holds those in the relation or engaged in the calling to that standard in order to maintain the general security. in other words another, though closely related, postulate of civilized society is involved. it is worth a moment's digression to suggest that such things show how little the historical categories of delict and contract represent any essential or inherent need of legal thinking. austin thought that "the distinction of obligations (or of duties corresponding to rights against persons specifically determined) into obligations which arise from contracts, obligations which arise from injuries, and obligations which arise from incidents which are neither contracts nor injuries," was a "necessary distinction," without which a "system of law evolved in a refined community" could not be conceived. this "necessary" systematic scheme, which must be "a constituent part" of any imaginable developed legal system, is but the roman division into obligations _ex contractu_, obligations _ex delicto_ and obligations _ex uariis causarum figuris_, in which the third category is obviously a catch-all. in trying to fit our law into this necessary scheme, we find three types of cases must go in the third: (a) duties or liabilities attached by law to a relation, (b) duties imposed by law to prevent unjust enrichment, (c) duties involved in an office or calling. in the third of these our anglo-american procedure allows recovery either _ex delicto_ or _ex contractu_. in the second our law sometimes goes on a property theory of constructive trust. in the first duties are sometimes sanctioned affirmatively by conferring legal powers or negatively by legal non-restraint of natural powers, as in the law of domestic relations, where the wife has a power to pledge the husband's credit for necessaries and the law does not interfere with the parent's administering reasonable "correction" to the child. are we to say that these dogmatic departures of our law from the roman scheme are inconceivable or that because of them our law is not matured or was not "evolved in a refined community?" or are we to say that austin derived his systematic ideas, not from scientific study of english law, but from scientific study of roman law in a german university? are we to say that we cannot "imagine coherently" a system of law which enforces warranties indifferently _ex contractu_ or _ex delicto_ as our law does, or which goes further and applies the contract measure of damage _ex delicto_ as does the law of massachusetts? but enough of this. what we have here is not any necessary distinction. it is rather what austin calls a "pervading notion," to be found generally in the systematic ideas of developed legal systems by derivation from the roman books. roman law may have a contractual conception of obligation _ex delicto_--thinking of the delict as giving rise to a debt--and the common law a delictual conception of liability upon contract--thinking in terms of recovery of damages for the wrong of breaking a promise--without much difference in the ultimate results. the fundamental things are not tort and contract but justifiable assumptions as to the mode in which one's fellow men will act in civilized society in many different situations of which aggression and undertaking are but two common types. returning to our second postulate of due care in affirmative courses of conduct, we may note that in the society of today it is no less fundamental than the postulate of no intentional aggression. aggression is the chief if not the only form of anti-social conduct in a primitive society. indeed, a greek writer on law and politics of the fifth century b. c. knew of no other subject of legal precepts. but with the development of machinery and consequent increase in human powers of action, the general security comes to be threatened quite as much by the way in which one does things as by what he does. carelessness becomes a more frequent and more serious source of danger to the general security than aggression. hence a set of nominate delicts requiring _dolus_ is supplemented by a theory of _culpa_. hence a set of nominate torts, characterized by intentional aggression, is supplemented by liability for negligence, and the latter becomes the more important source of legal liability in practice. must we not recognize also a third postulate, namely, that men must be able to assume that others, who keep things or maintain conditions or employ agencies that are likely to get out of hand or escape and do damage, will restrain them or keep them within proper bounds? just as we may not go effectively about our several businesses in a society dependent on a minute division of labor if we must constantly be on guard against the aggressions or the want of forethought of our neighbor, so our complex social order based on division of labor may not function effectively if each of us must stay his activities through fear of the breaking loose or getting out of hand of something which his neighbor harbors or maintains. there is danger to the general security not only in what men do and the way in which they do it, but also in what they fail to do in not restraining things they maintain or agencies they employ which may do injury if not kept strictly in hand. the general security is threatened by wilful aggression, by affirmative action without due regard for others in the mode of conducting it, and by harboring and maintaining things and employing agencies likely to escape or to go out of bounds and do damage. looked at in this way, the ultimate basis of delictal liability is the social interest in the general security. this interest is threatened or infringed in three ways: (1) intentional aggression, (2) negligent action, (3) failure to restrain potentially dangerous things which one maintains or potentially dangerous agencies which one employs. accordingly these three are the immediate bases of delictal liability. controversial cases of liability without fault involve the third postulate. systematic writers have found no difficulty in reconciling the law of negligence with the will theory of liability and the doctrine of no liability without fault. yet they must use the term fault in a strained sense in order to fit our law of negligence with its objective standard of due care, or the roman cases of liability for _culpa_ judged by the abstract standard, into any theory of moral blameworthiness. the doctrine of liability for fault and for fault only has its roots in the stage of equity and natural law, when the moral and the legal are identified, and means that one shall respond for injuries due to morally blameworthy conduct upon his part. as ames puts it, "the unmoral standard of acting at one's peril" is replaced by the question, "was the act blameworthy?" but is an act blameworthy because the actor has a slow reaction time or was born impulsive or is naturally timid or is easily "rattled" and hence in an emergency does not come up to the standard of what a reasonably prudent man would do in such an emergency, as applied _ex post facto_ by twelve average men in the jury box? if our use of "culpable" here were not, as it were, pickwickian, we should allow the defendant in such cases to show what sort of man nature had made him and to call for individualization with respect to his character and temperament as well as with respect to the circumstances under which he acted. as the romanist would say, we should apply a concrete standard of _culpa_. but what the law is really regarding is not his culpable exercise of his will but the danger to the general security if he and his fellows act affirmatively without coming up to the standard imposed to maintain that security. if he acts, he must measure up to that standard at his peril of answering for injurious consequences. whenever a case of negligence calls for sharp application of the objective standard, fault is as much a dogmatic fiction as is representation in the liability of the master for the torts of his servant. in each case the exigencies of the will theory lead us to cover up a liability irrespective of fault, imposed to maintain the general security, by a conclusive imputation of fault to one who may be morally blameless. this is no less true of cases where we speak of "negligence _per se_." reconciliation of common-law absolute liabilities for the getting out of hand of things likely to escape and do damage with the doctrine of no liability without fault has been sought by means of a fiction of negligence, by pronouncing them disappearing historical anomalies, by an economic interpretation that regards them as results of class interest distorting the law, and by a theory of _res ipsa loquitur_. blackstone resorted to the first of these. "a man is answerable," he said, "for not only his own trespass but for that of his cattle also; for if by his negligent keeping they stray upon the land of another ... this is a trespass for which the owner must answer in damages." but note that the negligence here is a dogmatic fiction. no proof of negligence is required of the plaintiff, nor may the defendant show that there was in fact no negligence. the negligence is established by the liability, not the liability by the negligence. in the last century it was usual to refer to absolute liability for trespassing animals, for injuries by wild animals and for injuries by domestic animals, known to be vicious, as disappearing rudiments of the old liability to make composition. the common american doctrine as to cattle running at large upon uncultivated lands seemed to confirm this. yet one need but look beneath the surface to see that the english rule was rejected for a time in america, not because it was in conflict with a fundamental principle of no liability without fault, but because it presupposed a settled community, where it was contrary to the general security to turn cattle out to graze, whereas in pioneer american communities of the past vacant lands which were owned and those which were not owned could not be distinguished and the grazing resources of the community were often its most important resources. the common-law rule, without regard to its basis, was for a time inapplicable to local conditions. it is significant that as the conditions that made the rule inapplicable have come to an end the rule has generally re-established itself. in england it is in full vigor so that the owner of trespassing animals is held for disease communicated by them although he had no knowledge or reason to suppose they were diseased. a rule that can re-establish itself and extend its scope in this way is not moribund. it must have behind it some basis in the securing of social interests. nor have the attempts of some american courts to narrow common-law liability for injuries by known vicious animals to cases of negligent keeping made much headway. the weight of american authority remains with the common-law rule and in england the court of appeal has carried the rule out to the extent of holding the owner notwithstanding the animal was turned loose by the wrongful act of an intermeddling third person. nor have the predictions that the doctrine of _rylands_ v. _fletcher_ would disappear from the law through the courts' smothering it with exceptions--predictions commonly made at the end of the last century--been verified in the event. in 1914 the english courts refused to limit the doctrine to adjacent free-holders and they have since extended it to new situations. moreover in america, where we had been told it was decisively rejected, it has been applied in the past decade by more than one court. the leading american cases that profess to reject the doctrine did not involve it nor did they involve the postulate of civilized society on which, as i think, it is based. also the court of appeals of new york, the leading exponent of no liability without fault, had theretofore imposed a liability without regard to negligence in the case of blasting. an ingenious explanation of the doctrine of _rylands_ v. _fletcher_ by means of the economic interpretation of legal history demands more notice. we are told that the english courts were manned by landowners or by judges drawn from the land-owning class; that the doctrine of _rylands_ v. _fletcher_ is a doctrine for landowners and so was not accepted by artisans in the united states. but consider which states applied the rule and which rejected it. it was applied in massachusetts in 1872, in minnesota in 1872, in ohio in 1896, in west virginia in 1911, in missouri in 1913, in texas in 1916. it was rejected by new hampshire in 1873, by new york in 1873, by new jersey in 1876, by pennsylvania in 1886, by california in 1895, by kentucky in 1903, by indiana in 1911. is new york a community of artisans but massachusetts a community of landowners? did the united states begin to change from a country of artisans to one of landowners about the year 1910 so that a drift toward the doctrine began at that time after a steady rejection of it between 1873 and 1896? _rylands_ v. _fletcher_ was decided in 1867 and is connected with the movement dicey calls collectivism, which, he says, began in 1865. it is a reaction from the notion of liability merely as a corollary of culpability. it restrains the use of land in the interest of the general security. if this view is well taken, if it was an attempt to take account of the social interest in the general security in a crowded country, this may explain the reluctance with which it was received in the united states at first, where pioneer ideas, appropriate to a less crowded agricultural country, lingered at least to the end of the nineteenth century. in the actual american decisions, some follow _rylands_ v. _fletcher_ as an authoritative statement of the common law. other cases go rather on the principle that liability flows from culpability. agricultural states and industrial states alike divide along these doctrinal lines. massachusetts and pennsylvania, both industrial states, are on opposite sides. so are texas and kentucky, which are agricultural states. massachusetts and new jersey, each with an appointive bench, are on opposite sides, and so are ohio and new york, each with an elective bench. in truth the massachusetts court followed authority. in new hampshire chief justice doe was not willing to go on mere authority and decided on the general principle that liability must flow from fault. another view is that the doctrine of _rylands_ v. _fletcher_ is a crude attempt, when negligence and the doctrine of _res ipsa loquitur_ were none too well understood, to apply the principle of the latter doctrine, and that those doctrines will suffice to reach the actual result. no doubt _res ipsa loquitur_ gives a possible mode of treating cases where one maintains something likely to get out of hand and do injury. for four possible solutions may be found for such cases. one is absolute liability, as in _rylands_ v. _fletcher_. another is to put the burden of proof of due care on the defendant, as french law does in some cases and as is done by some american decisions and some statutes in case of fires set by locomotives. a third is to apply the doctrine of _res ipsa loquitur_. a fourth would be to require the plaintiff to prove negligence, as is done by the supreme court of new jersey where a known vicious animal breaks loose. that the fourth, which is the solution required by the theory of no liability without fault, has found but two courts to uphold it, and that only in the case of vicious domestic animals, is suggestive. _res ipsa loquitur_ may easily run into a dogmatic fiction, and must do so, if made to achieve the result of the doctrine of _rylands_ v. _fletcher_, which does not permit the defendant to go forward with proof, short of _vis maior_ or the unanticipated unlawful act of a third person beyond defendant's control. the vitality and persistence of the doctrine against theoretical assault for more than a generation show that it is more than a historical anomaly or a dogmatic blunder. another type of common-law liability without fault, the so-called liability of the carrier as an insurer and the liability of the innkeeper, is relational and depends upon a different postulate. nineteenth-century courts in the united states endeavored to hold down the former, restricting it because of its inconsistency with the doctrine of liability as a corollary of fault. but it has proved to have abundant vitality, has been extended by legislation in some states to carriers of passengers and has been upheld by recent legislation everywhere. two other types of liability, contractual and relational, must receive brief notice. the former has long done valiant service for the will theory. not only liability arising from legal transactions but liability attached to an office or calling, liability attached to relations and liability to restitution in case of unjust enrichment have been referred to express or implied undertaking and hence to the will of the person held. but beneath the surface the so-called contract by estoppel, the cases of acceptance of a wrongly transmitted offer, the doctrine that a public utility has no general power of contract as to facilities or rates except to liquidate the terms of its relational duties in certain doubtful cases, and cases of imposition of duties on husband or wife after marriage by change of law, have caused persistent and recurring difficulties and call everywhere for a revision of our ideas. also the objective theory of contract has undermined the very citadel of the will theory. may we not refer these phenomena, not to the will of the person bound, but to another postulate of civilized society and its corollaries? may we not say that in civilized society men must be able to assume that those with whom they deal in the general intercourse of society will act in good faith? if so, four corollaries will serve as the bases of four types of liability. for it will follow that they must be able to assume (a) that their fellow men will make good reasonable expectations created by their promises or other conduct, (b) that they will carry out their undertakings according to the expectation which the moral sentiment of the community attaches thereto, (c) that they will conduct themselves with zeal and fidelity in relations, offices and callings, and (d) that they will restore in specie or by equivalent what comes to them by mistake or unanticipated situation whereby they receive what they could not have expected reasonably to receive under such circumstances. thus we come back to the idea of good faith, the idea of the classical roman jurists and of the philosophical jurists of the seventeenth century, out of which the will theory was but a metaphysical development. only we give it a basis in social philosophy where they sought a basis in theories of the nature of transactions or of the nature of man as a moral creature. looking back over the whole subject, shall we not explain more phenomena and explain them better by saying that the law enforces the reasonable expectations arising out of conduct, relations and situations, instead of that it proceeds upon willed action and willed action only, enforcing the willed consequences of declared intention, enforcing reparation for willed aggression and enforcing reparation for culpable carrying on of willed conduct? if we explain more and explain it more completely by saying that the ultimate thing in the theory of liability is justifiable reliance under the conditions of civilized society than by saying that it is free will, we shall have done all that we may hope to do by any theory. v property economic life of the individual in society, as we know it, involves four claims. one is a claim to the control of certain corporeal things, the natural media on which human existence depends. another is a claim to freedom of industry and contract as an individual asset, apart from free exercise of one's powers as a phase of personality, since in a highly organized society the general existence may depend to a large extent upon individual labor in specialized occupations, and the power to labor freely at one's chosen occupation may be one's chief asset. third, there is a claim to promised advantages, to promised performances of pecuniary value by others, since in a complex economic organization with minute division of labor and enterprises extending over long periods, credit more and more replaces corporeal wealth as the medium of exchange and agency of commercial activity. fourth, there is a claim to be secured against interference by outsiders with economically advantageous relations with others, whether contractual, social, business, official or domestic. for not only do various relations which have an economic value involve claims against the other party to the relation, which one may demand that the law secure, but they also involve claims against the world at large that these advantageous relations, which form an important part of the substance of the individual, shall not be interfered with. legal recognition of these individual claims, legal delimitation and securing of individual interests of substance is at the foundation of our economic organization of society. in civilized society men must be able to assume that they may control, for purposes beneficial to themselves, what they have discovered and appropriated to their own use, what they have created by their own labor and what they have acquired under the existing social and economic order. this is a jural postulate of civilized society as we know it. the law of property in the widest sense, including incorporeal property and the growing doctrines as to protection of economically advantageous relations, gives effect to the social want or demand formulated in this postulate. so also does the law of contract in an economic order based upon credit. a social interest in the security of acquisitions and a social interest in the security of transactions are the forms of the interest in the general security which give the law most to do. the general safety, peace and order and the general health are secured for the most part by police and administrative agencies. property and contract, security of acquisitions and security of transactions are the domain in which law is most effective and is chiefly invoked. hence property and contract are the two subjects about which philosophy of law has had the most to say. in the law of liability, both for injuries and for undertakings, philosophical theories have had much influence in shaping the actual law. if they have grown out of attempts to understand and explain existing legal precepts, yet they have furnished a critique by which to judge those precepts, to shape them for the future and to build new ones out of them or upon them. this is much less true of philosophical theories of property. their rôle has not been critical or creative but explanatory. they have not shown how to build but have sought to satisfy men with what they had built already. examination of these theories is an illuminating study of how philosophical theories of law grow out of the facts of time and place as explanations thereof and then are given universal application as necessarily explanatory or determinative of social and legal phenomena for all time and in every place. it has been said that the philosophy of law seeks the permanent or enduring element in the law of the time and place. it would be quite as true to say that it seeks to find in the law of the time and place a permanent or enduring picture of universal law. it has been said that the individual in civilized society claims to control and to apply to his purposes what he discovers and reduces to his power, what he creates by his labor, physical or mental, and what he acquires under the prevailing social, economic or legal system by exchange, purchase, gift or succession. the first and second of these have always been spoken of as giving a "natural" title to property. thus the romans spoke of them as modes of "natural acquisition" by occupation or by specification (making a species, i.e., creation). indeed, taking possession of what one discovers is so in accord with a fundamental human instinct that discovery and occupation have stood in the books ever since substantially as the romans stated them. a striking example of the extent to which this doctrine responds to deep-seated human tendencies is afforded by the customs as to discovery of mineral on the public domain upon which american mining law is founded and the customs of the old whale-fishery as to fast-fish and loose-fish which were recognized and given effect by the courts. but there is a difficulty in the case of creation or specification in that except where the creation is mental only materials must be used, and the materials or tools employed may be another's. hence grotius reduced creation by labor to occupation, since if one made from what he discovered, the materials were his by occupation, and if not, the title of others to the materials was decisive. this controversy as to the respective claims of him who creates by labor and him who furnishes the materials goes back to the roman jurists of the classical period. the proculians awarded the thing made to the maker because as such it had not existed previously. the sabinians awarded it to the owner of the materials because without materials the new thing could not have been made. in the maturity of roman law a compromise was made, and various compromises have obtained ever since. in modern times, however, the claim of him who creates has been urged by a long line of writers beginning with locke and culminating in the socialists. the romans spoke of what one acquired under the prevailing social, economic or legal system as held by "civil" acquisition and conceived that the principle _suum cuique tribuere_ secured the thing so acquired as being one's own. roman jurists recognized that certain things were not subject to acquisition in any of the foregoing ways. under the influence of the stoic idea of _naturalis ratio_ they conceived that most things were destined by nature to be controlled by man. such control expressed their natural purpose. some things, however, were not destined to be controlled by individuals. individual control would run counter to their natural purpose. hence they could not be the subjects of private ownership. such things were called _res extra commercium_. they might be excluded from the possibility of individual ownership in any of three ways. it might be that from their nature they could only be used, not owned, and from their nature they were adapted to general use. these were _res communes_. or it might be that they were made for or from their nature they were adapted to public use, that is use for public purposes by public functionaries or by the political community. these were _res publicae_. again it might be because they had been devoted to religious purposes or consecrated by religious acts inconsistent with private ownership. such things were _res sanctae_, _res sacrae_ and _res religiosae_. in modern law, as a result of the medieval confusion of the power of the sovereign to regulate the use of things (_imperium_) with ownership (_dominium_) and of the idea of the corporate personality of the state, we have made the second category into property of public corporations. and this has required modern systematic writers to distinguish between those things which cannot be owned at all, such as human beings, things which may be owned by public corporations but may not be transferred, and things which are owned by public corporations in full dominion. we are also tending to limit the idea of discovery and occupation by making _res nullius_ (e.g., wild game) into _res publicae_ and to justify a more stringent regulation of individual use of _res communes_ (e.g., of the use of running water for irrigation or for power) by declaring that they are the property of the state or are "owned by the state in trust for the people." it should be said, however, that while in form our courts and legislatures seem thus to have reduced everything but the air and the high seas to ownership, in fact the so-called state ownership of _res communes_ and _res nullius_ is only a sort of guardianship for social purposes. it is _imperium_, not _dominium_. the state as a corporation does not own a river as it owns the furniture in the state house. it does not own wild game as it owns the cash in the vaults of the treasury. what is meant is that conservation of important social resources requires regulation of the use of _res communes_ to eliminate friction and prevent waste, and requires limitation of the times when, places where and persons by whom _res nullius_ may be acquired in order to prevent their extermination. our modern way of putting it is only an incident of the nineteenth-century dogma that everything must be owned. it is not hard to see how the romans came to the distinction that has obtained in the books ever since. some things were part of the roman's _familia_, were used by him upon the public domain which he occupied or were traded by him to those with whom he had legal power of commercial intercourse. he acquired them by discovery, by capture in war, by labor in agriculture or as an artisan, by commercial transactions or by inheritance. for these things private actions lay. other things were no part of his or of anyone's household. they were used for political or military or religious purposes or, like rivers, were put to use by everyone without being consumed thereby. as to these, the magisterial rather than the judicial power had to be invoked. they were protected or use of them was regulated and secured by interdicts. one could not acquire them so as to maintain a private action for them. thus some things could be acquired and conveyed and some could not. in order to be valid, however, according to juristic theory the distinction must lie in the nature of things, and it was generalized accordingly. in a time when large unoccupied areas were open to settlement and abundant natural resources were waiting to be discovered and developed, a theory of acquisition by discovery and appropriation of _res nullius_, reserving a few things as _res extra commercium_, did not involve serious difficulty. on the other hand, in a crowded world, the theory of _res extra commercium_ comes to seem inconsistent with private property and the theory of discovery and occupation to involve waste of social resources. as to the latter, we may compare the law of mining and of water rights on the public domain, which developed along lines of discovery and reduction to possession under the conditions of 1849 and the federal legislation of 1866 and 1872, with recent legislation proceeding on ideas of conservation of natural resources. the former requires more consideration. for the argument that excludes some things from private ownership may seem to apply more and more to land and even to movables. thus herbert spencer says, in explaining _res communes_: "if one individual interferes with the relations of another to the natural media upon which the latter's life depends, he infringes the like liberties of others by which his own are measured." but if this is true of air and of light and of running water, men will insist upon inquiring why it is not true of land, of articles of food, of tools and implements, of capital and even, it may be, of the luxuries upon which a truly human life depends. accordingly, how to give a rational account of the so-called natural right of property and how to fix the natural limits of that right became vexed questions of philosophical jurisprudence. antiquity was content to maintain the economic and social _status quo_ or at least to idealize it and maintain it in an ideal form. the middle ages were content to accept _suum cuique tribuere_ as conclusive. it was enough that acquisition of land and movables and private ownership of them were part of the existing social system. upon the downfall of authority, seventeenth-and eighteenth-century jurists sought to put natural reason behind private property as behind all other institutions. when kant had undermined this foundation, the nineteenth-century philosophical jurists sought to deduce property from a fundamental metaphysical datum; the historical jurists sought to record the unfolding of the idea of private property in human experience, thus showing the universal idea; the utilitarian demonstrated private property by his fundamental test and the positivist established its validity and necessity by observation of human institutions and their evolution. in other words, here as elsewhere, when eighteenth-century natural law broke down, jurists sought to put new foundations under the old structure of natural rights, just as natural rights had been put as a new foundation to support institutions which theretofore had found a sufficient basis in authority. theories by which men have sought to give a rational account of private property as a social and legal institution may be arranged conveniently in six principal groups, each including many forms. these groups may be called: (1) natural-law theories, (2) metaphysical theories, (3) historical theories, (4) positive theories, (5) psychological theories and (6) sociological theories. of the natural-law theories, some proceed on a conception of principles of natural reason derived from the nature of things, some on conceptions of human nature. the former continue the ideas of the roman lawyers. they start with a definite principle found as the explanation of a concrete case and make it a universal foundation for a general law of property. as it has been put, they find a postulate of property and derive property therefrom by deduction. such theories usually start either from the idea of occupation or from the idea of creation through labor. theories purporting to be based on human nature are of three forms. some proceed on a conception of natural rights, taken to be qualities of human nature reached by reasoning as to the nature of the abstract man. others proceed upon the basis of a social contract expressing or guaranteeing the rights derived by reason from the nature of man in the abstract. in recent thinking a third form has arisen which may be called an economic natural law. in this form of theory, a general foundation for property is derived from the economic nature of man or from the nature of man as an economic entity. these are modern theories of natural law on an economic instead of an ethical basis. grotius and pufendorf may be taken as types of the older natural-law theories of property. according to grotius, all things originally were _res nullius_. but men in society came to a division of things by agreement. things not so divided were afterward discovered by individuals and reduced to possession. thus things came to be subjected to individual control. a complete power of disposition was deduced from this individual control, as something logically implied therein, and this power of disposition furnished the basis for acquisition from others whose titles rested directly or indirectly upon the natural foundation of the original division by agreement or of subsequent discovery and occupation. moreover, it could be argued that the control of an owner, in order to be complete, must include not only the power to give _inter vivos_ but also the power to provide for devolution after death as a sort of postponed gift. thus a complete system of natural rights of property was made to rest mediately or immediately upon a postulated original division by agreement or a subsequent discovery and occupation. this theory should be considered in the light of the facts of the subject on which grotius wrote and of the time when he wrote. he wrote on international law in the period of expansion and colonization at the beginning of the seventeenth century. his discussion of the philosophical foundation of property was meant as a preliminary to consideration of the title of states to their territorial domain. as things were, the territories of states had come down in part from the past. the titles rested on a sort of rough adjustment among the invaders of the roman empire. they could be idealized as the result of a division by agreement and of successions to, or acquisitions from, those who participated therein. another part represented new "natural" titles based on discovery and occupation in the new world. thus a romanized, idealized scheme of the titles by which european states of the seventeenth century held their territories becomes a universal theory of property. pufendorf rests his whole theory upon an original pact. he argues that there was in the beginning a "negative community." that is, all things were originally _res communes_. no one owned them. they were subject to use by all. this is called a negative community to distinguish it from affirmative ownership by co-owners. he declares that men abolished the negative community by mutual agreement and thus established private ownership. either by the terms of this pact or by a necessary implication what was not occupied then and there was subject to acquisition by discovery and occupation, and derivative acquisition of titles proceeding from the abolition of the negative community was conceived to be a further necessary implication. in anglo-american law, the justification of property on a natural principle of occupation of ownerless things got currency through blackstone. as between locke on the one side and grotius and pufendorf on the other, blackstone was not willing to commit himself to the need of assuming an original pact. apparently he held that a principle of acquisition by a temporary power of control co-extensive with possession expressed the nature of man in primitive times and that afterwards, with the growth of civilization, the nature of man in a civilized society was expressed by a principle of complete permanent control of what had been occupied exclusively, including as a necessary incident of such control the _ius disponendi_. maine has pointed out that this distinction between an earlier and a later stage in the natural right of property grew out of desire to bring the theory into accord with scriptural accounts of the patriarchs and their relations to the land grazed by their flocks. in either event the ultimate basis is taken to be the nature of man as a rational creature, expressed in a natural principle of control of things through occupation or in an original contract providing for such ownership. with the revival of natural law in recent years a new phase of the justification of property upon the basis of human nature has arisen. this was suggested first by economists who deduced property from the economic nature of man as a necessity of the economic life of the individual in society. usually it is coupled with a psychological theory on the one side and a social-utilitarian theory on the other side. in the hands of writers on philosophy of law it has often taken on a metaphysical color. from another standpoint, what are essentially natural-law theories have been advocated by socialists, either deducing a natural right of the laborer to the whole produce of his labor from a "natural" principle of creation or carrying out the idea of natural qualities of the individual human being to the point of denying all private property as a "natural" institution and deducing a general regime of _res communes_ or _res publicae_. metaphysical theories of property are part of the general movement that replaced seventeenth-and eighteenth-century theories of natural rights, founded on the nature of the abstract man or on an assumed compact, by metaphysical theories. they begin with kant. he first sets himself to justify the abstract idea of _a_ law of property--the idea of a system of "external _meum_ and _tuum_." here, as everywhere else, he begins with the inviolability of the individual human personality. a thing is rightfully mine, he says, when i am so connected with it that anyone who uses it without my consent does me an injury. but to justify the law of property we must go beyond cases of possession where there is an actual physical relation to the object and interference therewith is an aggression upon personality. the thing can only be mine for the purposes of a legal system of _meum_ and _tuum_ where i will be wronged by another's use of it when it is not actually in my possession. this raises in the first instance the question "how is a merely juridical or rational [as distinguished from a purely physical] possession possible?" he answers the question by a metaphysical version of the occupation theory of the eighteenth century. conceding that the idea of a primitive community of things is a fiction, the idea of a logically original community of the soil and of the things upon it, he says, has objective reality and practical juridical reality. otherwise mere objects of the exercise of the will, exempted therefrom by operation of law, would be raised to the dignity of free-willing subjects, although they have no subjective claim to be respected. thus the first possessor founds upon a common innate right of taking possession, and to disturb him is a wrong. the first taking of possession has "a title of right" behind it in the principle of the original common claim to possession. it results that this taker obtains a control "realized by the understanding and independent of relations of space," and he or those who derive from him may possess a parcel of land although remote from it physically. such a possession is only possible in a state of civil society. in civil society, a declaration by word or act that an external thing is mine and making it an object of the exercise of my will is "a juridical act." it involves a declaration that others are under a duty of abstaining from the use of the object. it also involves an admission that i am bound in turn toward all others with respect to the objects they have made "externally theirs." for we are brought to the fundamental principle of justice that requires each to regulate his conduct by a universal rule that will give like effect to the will of others. this is guaranteed by the legal order in civil society and gives us the regime of external mine and thine. having thus worked out a theory of _meum_ and _tuum_ as legal institutions, kant turns to a theory of acquisition, distinguishing an original and primary from a derived acquisition. nothing is originally mine without a juridical act. the elements of this legal transaction of original acquisition are three: (1) "prehension" of an object which belongs to no one; (2) an act of the free will interdicting all others from using it as theirs; (3) appropriation as a permanent acquisition, receiving a lawmaking force from the principle of reconciling wills according to a universal law, whereby all others are obliged to respect and act in conformity to the will of the appropriator with respect to the thing appropriated. kant then proceeds to work out a theory of derivative acquisition by transfer or alienation, by delivery or by contract, as a legal giving effect to the individual will by universal rules, not incompatible with a like efficacy in action of all other wills. this metaphysical version of the roman theory of occupation is evidently the link between the eighteenth century and savigny's aphorism that all property is founded in adverse possession ripened by prescription. when kant's theory is examined it will be found to contain both the idea of occupation and the idea of compact. occupation has become a legal transaction involving a unilateral pact not to disturb others in respect of their occupation of other things. but the pact does not derive its efficacy from the inherent moral force of a promise as such or the nature of man as a moral creature which holds him to promises. its efficacy is not found in qualities of promises or of men, but in a principle of reconciling wills by a universal law, since that principle requires one who declares his will as to object a to respect the declaration of his neighbor's will as to object b. on the other hand, the idea of creation is significantly absent. writing at the end of the eighteenth century, in view of the ideas of rousseau, who held that the man who first laid out a plot of ground and said, "this is mine," should have been lynched, and of the interferings with vested rights in revolutionary france, kant was not thinking how those who had not might claim a greater share in what they produced but how those who had might claim to hold what they had. hegel develops the metaphysical theory further by getting rid of the idea of occupation and treating property as a realization of the idea of liberty. property, he says, "makes objective my personal, individual will." in order to reach the complete liberty involved in the idea of liberty, one must give his liberty an external sphere. hence a person has a right to direct his will upon an external object and an object on which it is so directed becomes his. it is not an end in itself; it gets its whole rational significance from his will. thus when one appropriates a thing, fundamentally he manifests the majesty of his will by demonstrating that external objects that have no wills are not self-sufficient and are not ends in themselves. it follows that the demand for equality in the division of the soil and in other forms of wealth is superficial. for, he argues, differences of wealth are due to accidents of external nature that give to what a has impressed with his will greater value than to what b has impressed with his, and to the infinite diversity of individual mind and character that leads a to attach his will to this and b to attach his will to that. men are equal as persons. with respect to the principle of possession they stand alike. everyone must have property of some sort in order to be free. beyond this, "among persons differently endowed inequality must result and equality would be wrong." nineteenth-century metaphysical theories of property carry out these ideas or develop this method. and it is to be noted that they are all open to attack from the standpoint of the theory of _res extra commercium_. thus hegel's theory comes to this: personality involves exercise of the will with respect to things. when one has exercised his will with respect to a thing and so has acquired a power of control over it, other wills are excluded from this thing and are to be directed toward objects with which other personalities have not been so identified. so long as there are vacant lands to occupy, undeveloped regions awaiting the pioneer, unexploited natural resources awaiting the prospector--in short, so long as there are enough physical objects in reach, if one may so put it, to go round--this would be consistent with the nineteenth-century theory of justice. but when, as at the end of the nineteenth century, the world becomes crowded and its natural resources have been appropriated and exploited, so that there is a defect in material nature whereby such exercise of the will by some leaves no objects upon which the wills of others may be exerted, or a deficiency such as to prevent any substantial exertion of the will, it is difficult to see how hegel's argument may be reconciled with the argument put behind the conception of _res extra commercium_. miller, a scotch hegelian, seeks to meet this difficulty. he says that beyond what is needed for the natural existence and development of the person, property "can only be held as a trust for the state." in modern times, however, a periodical redistribution, as in antiquity, is economically inadmissible. yet if anyone's holdings were to exceed the bounds of reason, "the legislature would undoubtedly interfere on behalf of society and prevent the wrong which would be done by caricaturing an abstract right." in view of our bills of rights, an american hegelian could not invoke the _deus ex machina_ of an act of parliament so conveniently. perhaps he would fall back on graduated taxation and inheritance taxes. but does not miller when hard pressed resort to something very like social-utilitarianism? lorimer connects the metaphysical theory with theories resting on human nature. to begin with, he deduces the whole system of property from a fundamental proposition that "the right to be and to continue to be implies a right to the conditions of existence." accordingly he says that the idea of property is inseparably connected "not only with the life of man but with organic existence in general"; that "life confers rights to its exercise corresponding in extent to the powers of which it consists." when, however, this is applied in explaining the basis of the present proprietary system in all its details resort must be had to a type of artificial reasoning similar to that employed by the jurists of the seventeenth and eighteenth centuries. the abstract idea of ownership is not the only thing the legal philosopher has to consider. moreover the reasoning by which that application is made may not be reconciled with the arguments by which the doctrine of _res extra commercium_ is regarded also as a bit of natural law. although it purports to be wholly different, the positive theory of the basis of property is essentially the same as the metaphysical. thus spencer's theory is a deduction from a fundamental "law of equal freedom" verified by observation of the facts of primitive society. but the "law of equal freedom" supposed to be ascertained by observation, in the same way in which physical or chemical laws are ascertained, is in fact, as has often been pointed out, kant's formula of justice. and the verification of deductions from this law by observation of the facts of primitive civilization is not essentially different from the verification of the deductions from the metaphysical fundamental law carried on by the historical jurists. the metaphysical jurist reached a principle metaphysically and deduced property therefrom. the historical jurist thereupon verified the deduction by showing the same principle as the idea realizing itself in legal history. in the hands of the positivists the same principle is reached by observation, the same deduction is made therefrom, and the deduction is verified by finding the institution latent in primitive society and unfolding with the development of civilization. the most notable difference is that the metaphysical and historical jurists rely chiefly on primitive occupation of ownerless things, while the positivists have been inclined to lay stress upon creation of new things by labor. in any event, laying aside the verification for the moment, the deduction as made by spencer involves the same difficulties as those involved in the metaphysical deduction. moreover, like the metaphysical deduction, it accounts for an abstract idea of private property rather than for the regime that actually exists. inequalities are assumed to be due to "greater strength, greater ingenuity or greater application" of those who have acquired more than their fellows. hence, as the end of law is taken to be the bringing about of a maximum of individual free self-assertion, any interference with one's holding the fruits of his greater strength or greater ingenuity or greater application, and his resulting greater activity in creative or acquisitive self-assertion, would contravene the very purpose of the legal order. it will be noted also that this theory, like all that had gone before, assumes a complete _ius disponendi_ as implied in the very notion of property. but does not this also require demonstration? is the _ius disponendi_ implied in the idea which they demonstrate or is it only an incident of the institution they are seeking to explain by the demonstration? historical jurists have maintained their theory on the basis of two propositions: (1) the conception of private property, like the conception of individual personality, has had slow but steady development from the beginnings of law; (2) individual ownership has grown out of group rights just as individual interests of personality have been disentangled gradually from group interests. let us look at each of these propositions in some detail. if we examine the law of property analytically, we may see three grades or stages in the power or capacity which men have of influencing the acts of others with respect to corporeal objects. one is a mere condition of fact, a mere physical holding of or physical control over the thing without any other element whatever. the roman jurists called this natural possession. we call it custody. writers on analytical jurisprudence regard it as an element of possession. but this natural possession is something that may exist independently of law or of the state, as in the so-called _pedis possessio_ of american mining law, where, before law or state authority had been extended to the public domain in the mining country, the miners recognized the claim of one who was actually digging to dig without molestation at that spot. the mere having of an object in one's actual grasp gives an advantage. but it may be only an advantage depending on one's strength or on recognition of and respect for his personality by his fellow men. it is not a legal advantage except as the law protects personality. it is the physical person of the one in natural possession which is secured, not his relation to the thing held. analytically the next grade or stage is what the romanist calls juristic possession as distinguished from natural possession. this is a legal development of the extra-legal idea of custody. where custody or the ability to reproduce a condition of custody is coupled with the mental element of intention to hold for one's own purposes, the legal order confers on one who so holds a capacity protected and maintained by law so to hold, and a claim to have the thing restored to his immediate physical control should he be deprived of it. as the romanist puts it, in the case of natural possession the law secures the relation of the physical person to the object; in juristic possession the law secures the relation of the will to the object. in the highest grade of proprietary relation, ownership, the law goes much further and secures to men the exclusive or ultimate enjoyment or control of objects far beyond their capacity either to hold in custody or to possess--that is, beyond what they could hold by physical force and beyond what they could actually hold even by the help of the state. natural possession is a conception of pure fact in no degree dependent upon law. the legally significant thing is the interest of the natural possessor in his personality. possession or juristic possession is a conception of fact and law, existing as a pure relation of fact, independent of legal origin, but protected and maintained by law without regard to interference with personality. ownership is a purely legal conception having its origin in and depending on the law. in general the historical development of the law of property follows the line thus indicated by analysis. in the most primitive social control only natural possession is recognized and interference with natural possession is not distinguished from interference with the person or injury to the honor of the one whose physical contact with the physical object is meddled with. in the earlier legal social control the all-important thing is seisin, or possession. this is a juristic possession, a conception both of fact and of law. such institutions as tortious conveyance by the person seised in the common law are numerous in an early stage of legal development. they show that primarily the law protected the relation to an object of one who had possession of it. indeed the idea of _dominium_, or ownership as we now understand it, was first worked out thoroughly in roman law, and other systems got their idea of it, as distinguished from seisin, from the roman books. recognition of individual interests of substance, or in other words individual property, has developed out of recognition of group interests, just as recognition of individual interests of personality has evolved gradually from what in the first instance was a recognition of group interests. the statement which used to be found in the books that all property originally was owned in common means nothing more than this: when interests of substance are first secured they are interests of groups of kindred because in tribally organized society groups of kindred are the legal units. social control secures these groups in the occupation of things which they have reduced to their possession. in this sense the first property is group property rather than individual property. yet it must be noted that wherever we find a securing of group interests, the group in occupation is secured against interference of other groups with that occupation. two ideas gradually operated to break up these group interests and bring about recognition of individual interests. one of these is the partition of households. the other is the idea of what in the hindu law is called self-acquired property. in primitive or archaic society as households grow unwieldy there is a partition which involves partition of property as well as of the household. indeed in hindu law partition is thought of as partition of the household primarily and as partition of property only incidentally. also in roman law the old action for partition is called the action for partitioning the household. thus, at first, partition is a splitting up of an overgrown household into smaller households. presently, however, it tends to become a division of a household among individuals. thus in roman law on the death of the head of a household each of his sons in his power at his death became a _pater familias_ and could bring a proceeding to partition the inheritance although he might be the sole member of the household of which he was the head. in this way individual ownership became the normal condition instead of household ownership. in hindu law household ownership is still regarded as the normal condition. but with changes in society and the rise of commercial and industrial activity, a change has been taking place rapidly which is making individual ownership the normal type in fact, if not in legal theory. self-acquired property, the second disintegrating agency, may be seen in hindu law and also in roman law. in hindu law all property is normally and _prima facie_ household property. the burden is upon anyone who claims to be the individual owner of anything. but an exceptional class of property is recognized which is called self-acquired property. such property might be acquired by "valor," that is, by leaving the household and going into military service and thus earning or acquiring by way of booty, or by "learning," that is, by withdrawing from the household and devoting oneself to study and thus acquiring through the gifts of the pious or the exercise of knowledge. a third form was recognized later, namely, property acquired through the use of self-acquired property. in the same way in roman law the son in the household, even if of full age, normally had no property. legally all property acquired by any member of the household was the property of the head of the household as the legal symbol and representative thereof. later the head of the household ceases to be thought of as symbolizing the household and the property was regarded legally as his individual property. but roman law recognized certain kinds of property which sons in the household might hold as their own. the first of these was property earned or acquired by the son in military service. later property earned in the service of the state was added. finally it came to be law that property acquired otherwise than through use of the patrimony of the household might be held by the son individually though he remained legally under the power of the head. in the two ways just explained, through partition and through the idea of self-acquired property, individual interests in property came to be recognized throughout the law. except for the institution of community property between husband and wife in civil-law countries, or as it is called the matrimonial property regime, there is practically nothing left of the old system of recognized group interests. and even this remnant of household group ownership is dissolving. all legally recognized interests of substance in developed legal systems are normally individual interests. to the historical jurist of the nineteenth century, this fact, coupled with the development of ownership out of possession, served to show us the idea which was realizing in human experience of the administration of justice and to confirm the position reached by the metaphysical jurists. individual private property was a corollary of liberty and hence law was not thinkable without it. even if we do not adopt the metaphysical part of this argument and if we give over the idealistic-political interpretation of legal history which it involves, there is much which is attractive in the theory of the historical jurists of the last century. yet as we look at certain movements in the law there are things to give us pause. for one thing, the rise and growth of ideas of "negotiability," the development of the maxim _possession vaut titre_ in continental law, and the cutting down in other ways of the sphere of recognition of the interest of the owner in view of the exigencies of the social interest in the security of transactions, suggests that the tendency involved in the first of the two propositions relied on by the historical school has passed its meridian. the roman doctrine that no one may transfer a greater title than he has is continually giving way before the demand for securing of business transactions had in good faith. and in roman law in its maturity the rules that restricted acquisition by adverse possession and enabled the owner in many cases to reclaim after any lapse of time were superseded by a decisive limitation of actions which cut off all claims. the modern law in countries which take their law from rome has developed this decisive limitation. likewise in our law the hostility to the statute of limitations, so marked in eighteenth-century decisions, has given way to a policy of upholding it. moreover the rapid rise in recent times of limitations upon the _ius disponendi_, the imposition of restrictions in order to secure the social interest in the conservation of natural resources, and english projects for cutting off the _ius abutendi_ of the landowner, could be interpreted by the nineteenth-century historical jurists only as marking a retrograde development. when we add that with the increase in number and influence of groups in the highly organized society of today a tendency is manifest to recognize practically and in back-handed ways group property in what are not legal entities, it becomes evident that the segment of experience at which the historical jurists were looking was far too short to justify a dogmatic conclusion, even admitting the validity of their method. it remains to consider some twentieth-century theories. these have not been worked out with the same elaboration and systematic detail as those of the past, and as yet one may do no more than sketch them. an instinctive claim to control natural objects is an individual interest of which the law must take account. this instinct has been the basis of psychological theories of private property. but thus far these theories have been no more than indicated. they might well be combined with the historical theory, putting a psychological basis in place of the nineteenth-century metaphysical foundation. a social-psychological legal history might achieve much in this connection. of sociological theories, some are positivist, some psychological and some social-utilitarian. an excellent example of the first is duguit's deduction from social interdependence through similarity of interest and through division of labor. he has but sketched this theory, but his discussion contains many valuable suggestions. he shows clearly enough that the law of property is becoming socialized. but, as he points out, this does not mean that property is becoming collective. it means that we are ceasing to think of it in terms of private right and are thinking of it in terms of social function. if one doubts this he should reflect on recent rent legislation, which in effect treats the renting of houses as a business affected with a public interest in which reasonable rates must be charged as by a public utility. also it means that cases of legal application of wealth to collective uses are becoming continually more numerous. he then argues that the law of property answers to the economic need of applying certain wealth to definite individual or collective uses and the consequent need that society guarantee and protect that application. hence, he says, society sanctions acts which conform to those uses of wealth which meet that economic need, and restrains acts of contrary tendency. thus property is a social institution based upon an economic need in a society organized through division of labor. it will be seen that the results and the attitude toward the law of property involved are much the same as those which are reached from the social-utilitarian standpoint. psychological sociological theories have been advanced chiefly in italy. they seek the foundation of property in an instinct of acquisitiveness, considering it a social development or social institution on that basis. social-utilitarian theories explain and justify property as an institution which secures a maximum of interests or satisfies a maximum of wants, conceiving it to be a sound and wise bit of social engineering when viewed with reference to its results. this is the method of professor ely's well-known book on property and contract. no one has yet done so, but i suspect one might combine this mode of thought with the civilization interpretation of the neo-hegelians and argue that the system of individual property, on the whole, conduces to the maintaining and furthering of civilization--to the development of human powers to the most of which they are capable--instead of viewing it as a realization of the idea of civilization as it unfolds in human experience. perhaps the theories of the immediate future will run along some such lines. for we have had no experience of conducting civilized society on any other basis, and the waste and friction involved in going to any other basis must give us pause. moreover, whatever we do, we must take account of the instinct of acquisitiveness and of individual claims grounded thereon. we may believe that the law of property is a wise bit of social engineering in the world as we know it, and that we satisfy more human wants, secure more interests, with a sacrifice of less thereby than by anything we are likely to devise--we may believe this without holding that private property is eternally and absolutely necessary and that human society may not expect in some civilization, which we cannot forecast, to achieve something different and something better. vi contract wealth, in a commercial age, is made up largely of promises. an important part of everyone's substance consists of advantages which others have promised to provide for or to render to him; of demands to have the advantages promised which he may assert not against the world at large but against particular individuals. thus the individual claims to have performance of advantageous promises secured to him. he claims the satisfaction of expectations created by promises and agreements. if this claim is not secured friction and waste obviously result, and unless some countervailing interest must come into account which would be sacrificed in the process, it would seem that the individual interest in promised advantages should be secured to the full extent of what has been assured to him by the deliberate promise of another. let us put this in another way. in a former lecture i suggested, as a jural postulate of civilized society, that in such a society men must be able to assume that those with whom they deal in the general intercourse of the society will act in good faith, and as a corollary must be able to assume that those with whom they so deal will carry out their undertakings according to the expectations which the moral sentiment of the community attaches thereto. hence, in a commercial and industrial society, a claim or want or demand of society that promises be kept and that undertakings be carried out in good faith, a social interest in the stability of promises as a social and economic institution, becomes of the first importance. this social interest in the security of transactions, as one might call it, requires that we secure the individual interest of the promisee, that is, his claim or demand to be assured in the expectation created, which has become part of his substance. in civil-law countries the interest of the promisee, and thus the social interest in the security of transactions, is well secured. the traditional requirement of a _causa ciuilis_, a civil, i.e., legal, reason for enforcing a pact, gave way before natural-law ideas in the eighteenth century. pothier gave over the contract categories of the roman law as being "very remote from simplicity." then came the rise of the will theory of legal transactions in the nineteenth century. french law made intention of gratuitously benefiting another a _causa_. the austrian code of 1811 presumed a _causa_, requiring a promisor to prove there was none. and this means that he must prove the promise was not a legal transaction--that there was no intention to enter into a binding undertaking. in the result, abstract promises, as the civilian calls them, came to be enforced equally with those which came under some formal roman category and with those having a substantial presupposition. modern continental law, apart from certain requirements of proof, resting on the same policy as our statute of frauds, asks only, did the promisor intend to create a binding duty? likewise in civil-law countries the enforcing machinery is modern and adequate. the oldest method of enforcement in roman law was seizure of the person, to coerce satisfaction or hold the promisor in bondage until his kinsmen performed the judgment. later there was a pecuniary condemnation or, as we should say, a money judgment in all cases, enforced in the classical law by universal execution or, as we should say, by involuntary bankruptcy. but along with this remedy specific relief grew up in the _actio arbitraria_, a clumsy device of specific performance on the alternative of a heavy money condemnation, which repeated itself in pennsylvania before equity powers were given the courts, and is substantially repeating in our federal courts in their attempts to apply equitable relief to torts committed in foreign jurisdictions. the civil law developed, or perhaps the canon law developed and the civil law took over, an _actio ad implendum_ or action to require performance, with natural execution, that is a doing by the court or its officers at the expense of the defendant, of that to which he is bound as ascertained by the judgment. in general in civil-law countries today what we call specific performance is the rule. a money reparation for breach of contract is the exceptional remedy. it is only when for some reason specific relief is impracticable or inequitable, as in contracts of personal service, that money relief is resorted to. in countries governed by the common law we do not secure this interest so completely nor so effectively. for one thing we do not recognize as legally enforceable all intentional promises intended to be binding upon the promisor. many technical rules as to consideration, rules having chiefly a historical basis, stand in the way. many jurisdictions have abolished private seals and have made no provision for formal gratuitous or abstract promises. moreover, we do not give specific relief ordinarily but only exceptionally where pecuniary relief is considered inadequate. hence in the great majority of cases the promisee cannot compel performance in specie. if we look into the reasons for this wide and effective enforcement of promises in the one system and narrower and less effective enforcement in the other, we come in both cases upon a mixture of historical background and philosophical reasoning, each influencing the other and neither governing the subject completely. philosophical theories have arisen to explain existing rules and have been the basis of new rules and of remaking of old ones. but they have been the means also, at times, of intrenching the rules they sought to explain and of fastening on the law doctrines of which it were better rid. nowhere is the reciprocal action of legal rules and philosophical theories more strikingly manifest than in our law of contractual liability. law did not concern itself at first with agreements or breaches of agreements. its function was to keep the peace by regulating or preventing private war and this only required it to deal with personal violence and with disputes over the possession of property. i may remind you of the proposition of hippodamus in the fifth century b. c. that there were but three subjects of lawsuits, namely, insult, injury and homicide. if a dispute over breach of an agreement led to an assault and a breach of the peace, tribunals might be called on to act. but it was the assault not the breach of agreement with which they were concerned. controversy as to possession of property was a fertile source of disturbance of the peace and tribunals would entertain an action to recover possession. agreements to compound for a wrong are perhaps the earliest type. but the law had its eye upon the need of composition, not upon the agreement. no basis for a law of contracts was to be found in the power of the tribunals with respect to injuries although our law did make assumpsit out of trespass on the case. on the other hand recovery of property could be used for this purpose. hence the first legal, as distinguished from religious, contract was worked out on the analogy of a real transaction. before this, however, another possibility had developed in the religiously sanctioned promise. religion, the internal discipline of the organized kindred, and the law of the state were three co-ordinate agencies of social control in ancient society. nor was law for a long time the chief of these nor the one which covered the widest field. if the gods had been called to witness or good faith had a religious sanction, the duty to keep a promise was a matter for religion. otherwise the mere pact or agreement not within the cognizance of the priests was but a matter for self-help. hindu law shows the idea of religious duty to keep faith in full vigor. in the hindu system the relation between the parties to a debt is not legal but religious and now that a law has grown up under english influence it is said that there is a legal obligation because there is a religious obligation. a man is bound in law because and to the extent that he is bound in religion and not otherwise and no more. to the hindu lawyer a debt is not an obligation merely. it is a sin the consequences whereof follow the debtor into another world. vrihaspati says: "he who, having received a sum lent or the like does not return it to the owner, will be born hereafter in his creditor's house a slave, a servant, a woman or a quadruped." narada says that when one dies without having paid his debt, "the whole merit of his devotions or of his perpetual fire belongs to his creditors." in short the debtor is looked on as one who wrongfully withholds from the creditor the latter's property and hence as in some sort a thief. the legal idea, so far as there is one, is not one of obligation but of a property right in the creditor. one may suspect that religious obligation arising from the detention of property is a legal way of putting it in a polity in which social control is primarily religious and religious precepts are turning into legal precepts. at any rate the hindus carry the idea of religious obligation so far that a descendant is bound to pay the debts of his ancestor in many cases whether he receives any assets of the ancestor or not. the liability of the son to pay the father's debt is held to arise from the moral and religious duty of rescuing the father from the penalties attaching in a future state to non-payment of debts. accordingly if the debt is of such a kind that no penalties would so attach, there is no religious duty and hence no obligation imposed upon the descendant. roman law in its earliest stage was not unlike this. agreements of themselves were not cognizable by the tribunals. it was no ground for summoning a defendant before the magistrate that he had made a promise and had broken it. agreements were matters for religion or for kin or guild discipline. if one had called on the gods to witness his promise or sworn to fulfil it, he was liable to pontifical discipline. the presence of an impious oath breaker was a social danger and he might be devoted to the infernal gods. as law replaced religion as the controlling regulative agency, the old religiously sanctioned promise becomes a formal legal contract. thus in the strict law we get formal contracts with their historical origin in religious duty, and formal contracts with their historical origin in a legal duty created by a real transaction of suretyship or conveyance, perhaps by calling the people to witness so that there is an affront to the state if they are called upon in vain. when contact with greek philosophers set the roman jurists to thinking about the basis of obligation, there were two sorts of promises: (1) formal promises, (a) by stipulation, using the sacramental word _spondeo_ and thus assuming the pouring out of a libation that the gods might take notice of the promise, (b) by public ceremony apparently symbolizing a real transaction before the whole people, (c) entered upon the household books of account, and (2) mere informal promises not recognized by law. the latter depended wholly on the good faith of the maker since the law had put down self-help which formerly had been available to the promisee. accordingly roman jurists distinguished civil obligations and natural obligations--those recognized and secured legally and those which primarily had only a moral efficacy. a _nudum pactum_ or mere agreement or mere promise, not clothed with legal efficacy because it did not come within any of the categories of legal transactions sanctioned by the _ius ciuile_, created only a natural obligation. it was right and just to adhere to such a pact, but only contracts, undertakings recognized by law because of their form or nature, were enforceable. with increasing pressure of the social interest in the security of transactions through economic development and commercial expansion, the natural-law philosophy slowly affected this simple scheme of formal undertakings legally recognized and enforceable and informal undertakings of only moral efficacy, and brought about the complicated system of enforceable undertakings in the maturity of roman law with which you are familiar. four features of this movement are noteworthy. in the first place it led to a juristic theory of formal contract which has affected our ideas ever since. in the strict law the source of obligation was in the form itself. for in primitive thinking forms have an intrinsic efficacy. it has often been pointed out that the faith in legal forms belongs to the same order of thought as faith in forms of incantation and that legal forms are frequently symbols to be classed psychologically with the symbols of magic. the stage of equity and natural law, relying on reason rather than on form, governed by philosophy instead of by naïve faith, looked for the substance and found it in a pact preceding and presupposed by the formal ceremony. thus a formal contract was a pact with the addition of legal form. the pact was the substance of the transaction. the form was a _causa ciuilis_ or legal reason for enforcing the pact. but if the form was only a legal reason for enforcing something that got its natural efficacy in another way, it followed that there might well be other legal reasons for enforcement besides form. consequently new categories of contract were added to the old formal contracts and it is significant that while the latter were transactions _stricti iuris_ the former were considered transactions _bonae fidei_ involving liability to what good faith demanded in view of what had been done. in the scope of their obligation these contracts responded exactly to the postulate of civilized society that those with whom we deal will act in good faith and will carry out their undertakings according to the expectations of the community. on the other hand the old formal contracts responded thereto in part only since their obligation was one to do exactly what the terms of the form called for, no more and no less. when one makes _nexum_, said the twelve tables, as he says orally so be the law. new categories were added in successive strata, as it were, and juristic science sought afterward to reduce them to system and logical consistency. thus real contracts, consensual contracts and innominate contracts were added. but it is evident that many of these are juristic rationalizings of what had been done for a long time through formal transactions. thus the consensual contract of sale with its implied warranties rationalizes transfer by _traditio_ with stipulations for the price and for warranties. the real contract of _depositum_ rationalizes _fiducia cum amico_. the real contract of _mutuum_ rationalizes _pecunia credita_. but the latter was so thoroughly established as a formal transaction that the case of a loan of money, analytically a real contract, preserved the incidents of the strict law. moreover certain pacts, _pacta adiecta_, _pacta praetoria_, became actionable which do not fit into the analytical scheme of the institutes. for example, a _causa_ or reason for enforcing these pacts was found in their being incidental to something else or in a pre-existing natural obligation which they undertook to satisfy. there still remained natural obligations which had not been given legal efficacy as the basis of actions. the mere will of the person who undertook or the claim of the promisee was not a reason for enforcing. yet in reason they were morally binding and the legal and moral should coincide. hence they might be used defensively or as the basis of a set-off. meanwhile the forms of stipulation and of literal contract had been reduced to their lowest terms by conceiving them in terms of substance, and taking orally expressed agreement to be the substance of the one and writing to be the substance of the other. the results have defied analysis although the best that juristic ingenuity could do has been expended upon them for centuries. in the middle ages primitive ideas came back for a time through germanic law. general security in its lowest terms of peace and order was the pressing social interest. there was little commercial activity. the civilization of the time did not involve the corollaries of our jural postulate. religiously sanctioned undertakings by promissory oath and real transactions of pledge of person or property and of exchange gave rise to a simple system of formal undertakings. out of these came a theory of _causa debendi_, or reason for owing the promised performance, which has had a profound influence upon subsequent thinking. the roman _causa ciuilis_ was a legal reason for enforcing a pact. under the influence of the germanic idea _causa_ becomes a reason for making the pact, the good reason for making it furnishing a sufficient reason for enforcing it. for a time it seemed that the church might succeed in establishing a jurisdiction over promises. oaths and vows involved religious duties and might well be claimed as the province of the spiritual. but the moral obligation of pacts, binding the conscience of a christian, might also be cognizable by a zealous corrector of the conduct of the faithful for their soul's welfare. had not the power of the canon law broken down and the law of the state developed rapidly in respect of the security of transactions after the sixteenth century, the law of contracts might have grown along religious instead of along philosophical lines, and perhaps not to its advantage. as it is, one need but read doctor and student with the title _de pactis_ of the _corpus iuris canonici_ and casuist writings as to the moral efficacy of promises before him, to see that religion paved the way for much that was done presently in the name of philosophy. to the jurists of the seventeenth and eighteenth centuries no distinction between natural obligations and civil obligations was maintainable since all natural rights or obligations must for the very reason that they were natural be legal also. if it was morally obligatory that one adhere to a pact, then it must be treated as a contract. however much systematized analytically, the roman categories of contract did not deal with undertakings from this standpoint. what the jurists desired was not analytical categories but a principle upon which men were to be held or not to be held upon their promises. thus the philosophy of contract, the principles underlying the binding force of promises and agreements, became the chief problem of philosophical jurisprudence of the seventeenth century, as interests of personality were the chief subject of discussion in the eighteenth century, and interests of substance, the philosophy of the law of property, the chief subject of discussion in the nineteenth century. the decisive element in seventeenth-century thought as to contract was the idea of natural law; the idea of deduction from the nature of man as a moral creature and of legal rules and legal institutions which expressed this ideal of human nature. but the idea was put to work upon existing materials and the result was a reciprocal influence of the conception of enforcing promises as such because morally binding, on the one hand, shaped to some extent by canon law and casuist discussions of what promises were binding in conscience and when, and the ideas of _nudum pactum_ and _causa debendi_ on the other hand. roman law was assumed to be embodied reason. as d'aguesseau put it, rome was ruling by her reason, having ceased to rule by her authority. hence all consideration of the subject starts with the assumption that there are morally naked agreements which for that reason are to be naked legally. where there was an exchange of promises there was the authority of justinian for enforcement (_synallagma_) and it was easy to find a reason in the analogy of exchange of property. where something was exchanged for a promise, that something was a _causa debendi_. but suppose there was no exchange of promises nor was anything exchanged for the promise. there was nothing but a promise assented to. in roman law this would have to take the form of a stipulation. in the germanic law it would have required an oath or the form of a real transaction of pledge or exchange. at common law it required delivery of a sealed instrument. clearly there was no moral efficacy inherent in these forms. why should these "abstract" promises be enforced and not others? should every such promise be enforced or should none be enforced without something in the way of exchange, or should such promises be classified for the purpose of enforcement, and if so, how? two theories arose in the seventeenth century. one may be called the theory of an equivalent. this theory is obviously a rationalization of the germanic _causa debendi_ influenced by canon law and casuist writings. according to this theory an abstract promise, no equivalent having been given for it, is not naturally and hence is not legally binding. three reasons have been given for this which have figured in juristic discussion of the subject ever since. it was said that one who trusts another who makes a promise for no equivalent does so rashly. he cannot ask to be secured in such an unfounded expectation. this is too much in the spirit of the strict law. it denies any interest except where the law secures it. it says that if the law does not secure the interest, one is a fool to rely on the promise and so has no interest. in like manner the strict law said that if one gave his formal undertaking through fraud or mistake or coercion, he was a fool or a coward and was not to be helped. but we cannot prove the interest by the law. we must measure the law with reference to the interest. again it was said that if one promises without equivalent he does so more from "ostentation" than from real intention and so an equivalent shows that he acted from calculation and deliberately. it is only deliberate promises that are morally binding, for only such promises are relied upon by the prudent, upright man in his intercourse with his neighbors. if this reason is sound, equivalent is only a mode of proving deliberation and the real point should be that the promise was made deliberately as something by which the maker expected to be bound, not that the deliberation was evidenced in a particular way by an equivalent. a third reason was that one who parted with an equivalent in exchange for or in reliance on a promise is injured in his substance if the promise is not kept. but if this is the reason, the law should simply require restitution in case of non-performance. if the interest involved is the deduction from substance through rendering the equivalent, the obligation should be _quasi ex contractu_ rather than _ex contractu_. our anglo-american law of contracts was much influenced by this theory of equivalents. in the seventeenth century four types of promise were legally enforceable at common law: (1) a formal acknowledgment of indebtedness by bond under seal, often conditioned upon performance of a promise for which it was a security, (2) a covenant or undertaking under seal, (3) the real contract of debt, and (4) a simple promise upon consideration, that is, in exchange for an act or for another promise. the first conclusively acknowledged an equivalent, in the second it could be said that the seal presupposed or implied one, in the third the obligation arose from the detention of something by him to whom it had been delivered, and in the fourth the act or counter-promise was the motive or consideration for the promise and as a cause of or reason for making it was the equivalent for which the promisor chose to assume the undertaking. with some aid from a dogmatic fiction in the case of covenants, the common law could be adjusted to this theory reasonably well. accordingly as far back as bacon we find consideration treated from this standpoint in the english books. but it was never a satisfactory explanation. if the theory was sound it ought not to matter whether the equivalent was rendered before the promise or after it or simultaneously with it. indeed, english equity in the nineteenth century took subsequent action in reliance upon a promise of a gift to be a common-law consideration on the basis whereof the promise was specifically enforceable. equity never wholly adopted this or any other theory. at least after the middle of the eighteenth century equity was supposed to follow the law as to what was a contract. but the common law was not settled till the nineteenth century and we find the chancellors using consideration frequently to mean not equivalent but any reason for making the promise and thus making it synonymous with the civilian's _causa_. the so-called meritorious consideration, consideration of blood and of love and affection, and the cases of promises sustained by moral obligation of a debtor to secure his creditor, of a husband to settle property on his wife and of a parent to provide for a child, show the idea of _causa_ at work in equity. it is significant that doctor and student was often cited in these connections. the most thoroughgoing attempt to apply the equivalent theory to be found in the books is langdell's working out of a system of the so-called conditions implied in law or dependent promises on that basis. as an example of vigorous legal analysis it rivals austin. but it did not succeed in shaping the law. on the continent the second theory, the theory of the inherent moral force of a promise made as such, came to prevail. this was the theory of grotius. it was generally adopted by continental writers of the eighteenth century and, as has been seen, it broke down the roman categories and led to the rule that a promise as such, intending a legal transaction, created legal obligation. at the end of the eighteenth century lord mansfield came very near establishing it in our law by his doctrine that no promise made as a business transaction could be _nudum pactum_. but he was too late. growth stopped for a season and the nineteenth century set itself to systematize and harmonize what it had received rather than to carry the development further. when the natural-law foundation of enforcing promises crumbled, the metaphysical jurists sought to provide a new one. kant said that it was impossible to prove that one ought to keep his promise, considered merely as a promise, and deduced contract from property as a form of conveyance or alienation of one's substance involved in the very idea of individual rights. so far as consistent with abstract freedom of will according to a universal law one might alienate his services as well as his property, and an undertaking to perform something was an alienation of that sort. this view was generally taken so that while the seventeenth century sought to rest rights upon contract and the eighteenth century rested contract on the inherent moral significance of a promise, the nineteenth century, making the philosophy of property the important thing, rested contract on property. three of these theories are worth a moment's notice. fichte says that the duty of performing an agreement arises when one party thereto begins to act under it. juristically this seems to be a rationalization of the roman innominate contract. there, in case a pact was performed on one side, he who performed might claim restitution _quasi ex contractu_ or claim the counter-performance _ex contractu_. philosophically the idea seems to be that of the equivalent theory, in the form with which we are familiar in anglo-american discussion of this subject as the injurious-reliance theory. according to the latter, unless the promisee has parted with an equivalent or has begun to act in reliance upon the agreement, he has no moral claim to fulfilment. this is not a theory of the law as it is or as it ever has been. formal contracts require nothing of the sort. it is true, english equity, under the influence of the equivalent theory, did lay down in the nineteenth century that a contract under seal with no common-law consideration behind it would not be enforced. but that proposition was subject to many exceptions when it was announced, more have since developed and more are developing. as things are, the exceptions are of more frequent application than the rule itself. nor is fichte's theory a statement of moral ideas of his day or of ours. then and now the moral duty to keep abstract promises was and is recognized. that a man's word should be "as good as his bond" expresses the moral sentiment of civilized society. but the philosopher saw that the law did not go so far and was trying to frame a rational explanation of why it fell short. it should be noticed that fichte is really trying to show why a promise may be regarded as a part of one's substance and why one's claim to performance may be treated as his property. hegel also explains contract in terms of property, treating a promise as a disposition of one's substance. hence in his view the so-called abstract promise is a mere subjective qualification of one's will which he is at liberty to change. this theory and the foregoing assume the roman law or the older law of continental europe, and speak from the reaction from natural law which in england at the same time was overruling the liberal doctrines of lord mansfield. later metaphysical jurists rely upon the idea of personality. the romanist thinks of a legal transaction as a willing of some change in a person's sphere of rights to which the law, carrying out his will, gives the intended effect. if the transaction is executed, revocation would involve aggression upon the substance of another. if it is executory, however, why should the declared intent that the change take place in the future be executed by law despite the altered will of the promisor? some say that this should be done where there is a joint will from which only joint action may recede. where the parties have come to an agreement, where their wills have been at one, the law is to give effect to this joint will as a sort of vindication of personality. it is evident, however, that this explanation assumes the will theory, the subjective theory of legal transactions. if we start from the objective theory it breaks down. take for instance the case of an offer, which a reasonable man would understand in a given way, accepted by the offeree in that understanding when the offerer really meant something else. or take the case of an offer wrongly transmitted by telegraph and accepted in good faith as it is transmitted. here there is no community of will and yet the law may well hold, as we do in america, in both cases, that there is a contract. no metaphysical theory has prevailed to prevent the steady march of the law and of juristic thought in the direction of an objective doctrine of legal transactions. nowhere, indeed, has the deductive method broken down so completely as in the attempt to deduce principles upon which contracts are to be enforced. later in the nineteenth century men came to think more about freedom of contract than about enforcement of promises when made. to spencer and the mechanical positivists, conceiving of law negatively as a system of hands off while men do things, rather than as a system of ordering to prevent friction and waste so that they may do things, the important institution was a right of free exchange and free contract, deduced from the law of equal freedom as a sort of freedom of economic motion and locomotion. justice required that each individual be at liberty to make free use of his natural powers in bargains and exchanges and promises except as he interfered with like action on the part of his fellow men, or with some other of their natural rights. whether all such transactions should be enforced against him or only some, and if the latter, which, are questions belonging to an affirmative rather than to a negative science of law. historical jurists accepted the will theory and have been its leading advocates in modern times. they saw that the whole course of legal history had been one of wider recognition and more effective enforcement of promises. those who accepted the ethical idealistic interpretation of legal history could see freedom as an ethical idea realizing itself in a larger freedom of self-assertion and self-determination through promises and agreements and a wider giving effect to the will so asserted and determined. for the most part they wrote on the continent where the field of legally enforceable promises had ceased to be bounded by a narrow fence of roman historical categories. thus they had no call to rationalize dogmas of not enforcing promises made as business transactions. those who accepted the political interpretation saw freedom as a civil or political idea realizing itself in a progress from _status_ to contract in which men's duties and liabilities came more and more to flow from willed action instead of from the accident of social position recognized by law. the english historical jurists might well have asked how far english rules as to consideration were consonant with the implications of such a theory, and whether they must not be expected to give way as the idea unfolded more completely in experience of popular action and judicial decision. but the leader of this school was not a common-law lawyer and the american historical jurists devoted their energies to devising a historical-analytical theory of consideration rather than to the wider question of what promises should be enforced and why. here as in other places the historical jurist and the utilitarian were in agreement as to results although they differed widely as to the mode of reaching them. the former saw in contract a realization of the idea of liberty. the latter saw in it a means of promoting that maximum of individual free self-assertion which he took to be human happiness. hence the former called for freedom of contract and should have called for wide general enforcement of promises. the latter held to a doctrine of unshackling men and allowing them to act as freely as possible, which involved the complementary position of extending the sphere and enforcing the obligation of contract. the difference between these ways of thinking and those of the end of the eighteenth century is brought out if we compare blackstone (1765) with a dictum of sir george jessel a century later (1875). the former says that the public is "in nothing so essentially interested as in securing to every individual his private rights." the latter, discussing a question of what agreements are against public policy and therefore unenforceable, says: "if there is one thing more than another which public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting and that such contracts shall be enforced by courts of justice." but the utilitarians put the emphasis upon the first, the negative, rather than upon the second, the affirmative, part of this twofold program. this is true also of the historical jurists and of the positivists. the english trader and entrepreneur was not seeking for legal instruments. he could work passably with those which the law furnished if the law would but let him. what he sought was to be free from legal shackles which had come down from a society of a different nature organized on a different basis and with other ends. hence juristic thought addressed itself to this for a season rather than to the doctrine of consideration and the reason for non-enforcement of deliberate promises where not put in the form of bargains. no one of the four theories of enforcing promises which are current today is adequate to cover the whole legal recognition and enforcement of them as the law actually exists. putting them in the order of their currency, we may call them (1) the will theory, (2) the bargain theory, (3) the equivalent theory, (4) the injurious-reliance theory. that is, promises are enforced as a giving effect to the will of those who agree, or to the extent that they are bargains or parts of bargains, or where an equivalent for them has been rendered, or where they have been relied on by the promisee to his injury, according to the theory chosen. the first is the prevailing theory among civilians. but it must give way before the onward march of the objective theory of legal transactions and is already fighting a rear-guard action. in our law it is impossible. we do not give effect to promises on the basis of the will of the promisor, although our courts of equity have shown some tendency to move in that direction. the attempt in the nineteenth century to romanize our theories of liability involved a romanized will-theory of contract. but no one who looks beneath the surface of our law reports can doubt that the attempt has failed wholly. we no longer seek solutions on every side through a pedantic romanized law of bailments and in the law of bailments itself we are coming to talk in common-law terms of negligence in view of the circumstances and not in romanist terms of the willed standard of diligence and corresponding degrees of negligence. in america, at least, the objective theory of contract is orthodox and the leader of english analytical jurists of the present generation has expounded it zealously. courts of equity, which inherit modes of thought from the time when the chancellor searched the conscience of a defendant by an examination under oath, and believed he could reach subjective data that were beyond the cognizance of a jury, are the last stronghold of the exotic subjective theory in the common law. probably the bargain theory is the one most current in common-law thinking. it is a development of the equivalent theory. it will not cover formal contracts but under its influence the formal contracts have been slowly giving way. the seal "imports" a consideration. legislation has abolished it in many jurisdictions and often it does no more than establish a bargain _prima facie_, subject to proof that there was in fact no consideration. courts of equity require a common-law consideration, at least on the face of their general rule, before they will enforce a sealed contract. also the formal contracts of the law merchant are subject to defeat by showing there was no consideration, except when in the hands of holders for value without notice. here, however, consideration is used in the sense of equivalent, to the extent of admitting a "past consideration," and the bargain theory, appropriate to simple contracts, is not of entire application. on the other hand the extent to which courts today are straining to get away from the bargain theory and enforce promises which are not bargains and cannot be stated as such is significant. subscription contracts, gratuitous promises afterwards acted on, promises based on moral obligations, new promises where a debt has been barred by limitation or bankruptcy or the like, the torturing of gifts into contracts by equity so as to enforce _pacta donationis_ specifically in spite of the rule that equity will not aid a volunteer, the enforcement of gratuitous declarations of trust, specific enforcement of options under seal without consideration, specific performance by way of reformation in case of security to a creditor or settlement on a wife or provision for a child, voluntary relinquishment of a defense by a surety and other cases of "waiver," release by mere acknowledgment in some states, enforcement of gifts by way of reformation against the heir of a donor, "mandates" where there is no _res_, and stipulations of parties and their counsel as to the conduct of and proceedings in litigation--all these make up a formidable catalogue of exceptional or anomalous cases with which the advocate of the bargain theory must struggle. when one adds enforcement of promises at suit of third-party beneficiaries, which is making headway the world over, and enforcement of promises where the consideration moves from a third person, which has strong advocates in america and is likely to be used to meet the exigencies of doing business through letters of credit, one can but see that lord mansfield's proposition that no promise made as a business transaction can be _nudum pactum_ is nearer realization than we had supposed. yet the equivalent theory and the injurious-reliance theory are even less adequate to explain the actual law. the equivalent theory must wrestle at the outset with the doctrine that inadequacy of consideration is immaterial so that the equivalency is often pickwickian. hegel could argue for it on the basis of the roman _laesio enormis_. but when a court of equity is willing to uphold a sale of property worth $20,000 for $200, even a dogmatic fiction is strained. moreover the catalogue of anomalies with which the bargain theory must wrestle contains more than one difficulty for the adherent of either theory. stipulations in the course of litigation do not need equivalents nor do they need to be acted on in order to be enforceable. a release by mere acknowledgment, when good at all, needs no equivalent and need not be acted on. waiver by a surety of the defense of release by giving time to the principal needs no element of consideration nor of estoppel. defectively executed securities, settlements and advancements need no equivalent and need not be acted on in order to be reformed. options under seal are held open in equity on the basis of the seal alone. a gratuitously declared trust creates an obligation cognizable in equity without more. in truth the situation in our law is becoming much the same as that in the maturity of roman law and for the same reason. we have three main categories. first, there are formal contracts, including sealed instruments, recognizances, and the formal contracts of the law merchant, in which latter the form consists in the use of certain words, requirements as to sum certain, payment at all events, and certainty as to time. second, there are the real contracts of debt and bailment. third, there are simple contracts, without form and upon consideration. the latter is the growing category although the formal contracts of the law merchant have shown some power of growth and the business world has been trying to add thereto letters of credit using the formal words "confirmed" or "irrevocable." but the category of enforceable simple promises defies systematic treatment as obstinately as the actionable pacts in roman law. successive additions at different times in the endeavor of courts to hold men to their undertakings, in view of the social interest in the security of transactions and the jural postulates of the civilization of the day, proceed on all manner of different theories and different analogies and agree only in the result--that a man's word in the course of business should be as good as his bond and that his fellow men must be able to rely on the one equally with the other if our economic order is to function efficiently. it is evident that many courts consciously or subconsciously sympathize with lord dunedin's feeling that one can have no liking for a doctrine which enables a promisor to snap his fingers at a promise deliberately made, fair in itself, and in which the person seeking to enforce it has a legitimate interest according to the ordinary understanding of upright men in the community. it is significant that although we have been theorizing about consideration for four centuries, our texts have not agreed upon a formula of consideration, much less our courts upon any consistent scheme of what is consideration and what is not. it means one thing--we are not agreed exactly what--in the law of simple contracts, another in the law of negotiable instruments, another in conveyancing under the statute of uses and still another thing--no one knows exactly what--in many cases in equity. letters of credit afford a striking illustration of the ill-adaptation of our american common law of contract to the needs of modern business in an urban society of highly complex economic organization. well known abroad and worked out consistently on general theories in the commercial law of continental europe, these instruments came into use in this country on a large scale suddenly during the war. there was no settled theory with respect to them in our books and the decisions warranted four or five views leading to divergent results in matters of vital moment to the business man who acted on them. characteristically the business world set out to make of them formal contracts of the law merchant by the use of certain distinctive words which gave the instruments character and made their nature clear to those who inspected them anywhere in the world. but for a season our category of mercantile specialties had ceased to admit of growth and the doctrine of consideration with its uncertain lines stood in the way of many things which the exigencies of business called for and business men found themselves doing in reliance on each other's business honor and the banker's jealousy of his business credit, with or without assistance from the law. certainly no one would say that such a situation bears witness to wise social engineering in an economically organized society resting on credit. two circumstances operate to keep the requirement of consideration alive in our law of simple contract. one is the professional feeling that the common law is the legal order of nature, that its doctrines in an idealized form are natural law and that its actual rules are declaratory of natural law. this mode of thinking is to be found in all professions and is a result of habitual application of the rules of an art until they are taken for granted. in law it is fortified by the theory of natural law which has governed in our elementary books since blackstone, was taught to all lawyers until the present century, and is assumed in much of our judicial decision. later it was strengthened by the theories of the historical school which ruled in our law schools in the last quarter of the nineteenth century and taught us to think that growth must inevitably follow lines which might be discovered in the year books. these things co-operated with the temper of the last century and the instinctive aversion of the lawyer to change, lest in some unperceived way a door be opened to magisterial caprice or to the personal equation of the judge. thus some thought of consideration, whatever it was, as inherent in the very idea of enforceable promises. others assumed that it was a historically developed principle by which the future evolution of the law of contracts must be governed. many others simply thought that it was dangerous to talk of change. and yet change has gone on rapidly, if subconsciously, until the present confused mass of unsystematized and unsystematizable rules has resulted. the second circumstance operating to keep alive the requirement of consideration is a more legitimate factor. nowhere could psychology render more service to jurisprudence than in giving us a psychological theory of _nuda pacta_. for there is something more than the fetish of a traditional latin phrase with the hallmark of roman legal science behind our reluctance to enforce all deliberate promises simply as such. it should be compared with the reluctance of courts to apply the ordinary principle of negligence to negligent speech, with the doctrine as to seller's talk, with the limitations upon liability for oral defamation and with many things of the sort throughout our law. all of these proceed partly from the attitude of the strict law in which our legal institutions first took shape. but they have persisted because of a feeling that "talk is cheap," that much of what men say is not to be taken at face value and that more will be sacrificed than gained if all oral speech is taken seriously and the principles applied by the law to other forms of conduct are applied rigorously thereto. this is what was meant when the writers on natural law said that promises often proceeded more from "ostentation" than from a real intention to assume a binding relation. but this feeling may be carried too far. undoubtedly it has been carried too far in the analogous cases above mentioned. the rule of _derry_ v. _peek_ goes much beyond what is needed to secure reasonable limits for human garrulousness. the standard of negligence, taking into account the fact of oral speech and the character and circumstances of the speech in the particular case, would amply secure individual free utterance. so also the doctrine that one might not rely on another's oral representation in the course of a business transaction if he could ascertain the facts by diligence went much too far and has had to be restricted. likewise we have had to extend liability for oral defamation. accordingly because men are prone to overmuch talk it does not follow that promises made by business men in business dealings or by others as business transactions are in any wise likely to proceed from "ostentation" or that we should hesitate to make them as binding in law as they are in business morals. without accepting the will theory, may we not take a suggestion from it and enforce those promises which a reasonable man in the position of the promisee would believe to have been made deliberately with intent to assume a binding relation? the general security is more easily and effectively guarded against fraud by requirements of proof after the manner of the statute of frauds than by requirements of consideration which is as easy to establish by doubtful evidence as the promise itself. this has been demonstrated abundantly by experience of suits in equity to enforce oral contracts taken out of the statute of frauds by great hardship and part performance. revived philosophical jurisprudence has its first and perhaps its greatest opportunity in the anglo-american law of contracts. the constantly increasing list of theoretical anomalies shows that analysis and restatement can avail us no longer. indeed the lucid statement of williston but emphasizes the inadequacy of analysis even when eked out by choice from among competing views and analytical restatements of judicial dogma in the light of results. projects for "restatement of the law" are in the air. but a restatement of what has never been stated is an impossibility and as yet there is no authoritative statement of what the law of consideration is. nothing could be gained by a statement of it with all its imperfections on its head and any consistent analytical statement would require the undoing of much that the judges have done quietly beneath the surface for making promises more widely enforceable. given an attractive philosophical theory of enforcement of promises, our courts in a new period of growth will begin to shape the law thereby and judicial empiricism and legal reason will bring about a workable system along new lines. the possibilities involved may be measured if we compare our old law of torts with its hard and fast series of nominate wrongs, its distinctions growing out of procedural requirements of trespass and trespass on the case and its crude idea of liability, flowing solely from causation, with the law of torts at the end of the nineteenth century after it had been molded by the theory of liability as a corollary of fault. even if we must discard the conception that tort liability may flow only from fault, the generalization did a service of the first magnitude not only to legal theory but to the actual administration of justice. no less service will be rendered by the twentieth-century philosophical theory, whatever it is, which puts the jural postulate of civilized society in our day and place with respect to good faith, and its corollary as to promises, in acceptable form, and furnishes jurist and judge and lawmaker with a logical critique, a workable measure of decision and an ideal of what the law seeks to do, whereby to carry forward the process of enlarging the domain of legally enforceable promises and thus enlarging on this side the domain of legal satisfaction of human claims. bibliography lecture i plato (b. c. 427-347), republic. ----, laws. translations in jowett's plato. the translation of the republic is published separately. pseudo-plato, minos. now generally considered not to be a genuine work of plato's and variously dated from as early as c. 337 b. c. to as late as c. 250 b. c. there is a convenient translation in bohn's libraries. aristotle (b. c. 384-322), nicomachean ethics. convenient translation by browne in bohn's libraries. ----, politics. translation by jowett should be used. reference may be made to berolzheimer, system der rechts und wirthschaftsphilosophie, ii, §§ 13-16 (world's legal philosophies, 46-77); hildenbrand, geschichte und system der rechtsund staatsphilosophie, §§ 1-121. cicero (b. c. 106-43), de legibus. reference may be made to berolzheimer, system der rechts und wirthschaftsphilosophie, ii, §§ 17-20 (world's legal philosophies, 78-92); hildenbrand, geschichte und system der rechtsund staatsphilosophie, §§ 131-135, 143-147; voigt, das ius naturale, aequum et bonum und ius gentium der römer, i, §§ 16, 35-41, 44-64, 89-96. thomas aquinas (1225 or 1227-1274), summa theologiae. convenient translation of the parts relating to law in aquinas ethicus. reference may be made to berolzheimer, system der rechts und wirthschaftsphilosophie, ii, §§ 21-23 (world's legal philosophies, 93-111). oldendorp, iuris naturalis gentium et ciuilis [greek: eisagôgê] (1539). hemmingius (henemingsen) de iure naturale apodictica methodus (1562). winckler, principiorum iuris libri v (1615). these are collected conveniently in kaltenborn, die vorläufer des hugo grotius. reference may be made to berolzheimer, system der rechts und wirthschaftsphilosophie, ii, § 24 (world's legal philosophies, 112-114); hinrichs, geschichte der rechts und staatsprincipien seit der reformation, i, 1-60; gierke, johannes althusius, 2 ed., 18-49, 142-162, 321. soto, de justitia et iure (1589). suarez, de legibus ac deo legislatore (1619). reference may be made to figgis, studies of political thought from gerson to grotius, lect. v. grotius, de iure belli et pacis (1625). whewell's edition with an abridged translation is convenient. pufendorf, de jure naturae et gentium (1672). kennet's translation (1703) may be found in several editions. burlamaqui, principes du droit naturel (1747). nugent's translation is convenient. wolff, institutiones juris naturae et gentium (1750). rutherforth, institutes of natural law (1754-1756). vattel, le droit des gens, préliminaires (1758). there are many translations of vattel. rousseau, contrat social (1762). tozer's translation is convenient. blackstone, commentaries on the laws of england, introduction, sect. ii (1765). reference may be made to berolzheimer, system der rechts und wirthschaftsphilosophie, ii, §§ 25-27, 29 (world's legal philosophies, 115-134, 141-156); hinrichs, geschichte der rechtsund staatsprincipien seit der reformation, i, 60-274, ii, iii, 1-318; korkunov, general theory of law, transl. by hastings, § 7; charmont, la renaissance du droit naturel, 10-43. hobbes, leviathan (1651). spinoza, ethica (1674). ----, tractatus theologico-politicas (1670). elwes' translation of the two last in bohn's libraries must be used with caution. bentham, principles of morals and legislation (1780). a convenient reprint is published by the clarendon press. ----, theory of legislation. (originally published in french, 1820). translated by hildreth (1864), and in many editions. mill, on liberty (1859). courtney's edition (1892) is convenient. reference may be made to duff, spinoza's political and ethical philosophy; berolzheimer, system der rechtsund wirthschaftsphilosophie, ii, § 28 (world's legal philosophies, 134-141); dicey, law and public opinion in england, lect. 6; albee, history of english utilitarianism; stephen, the english utilitarians; solari, l'idea individuale e l'idea sociale nel diritto privato, §§ 31-36. kant, metaphysische anfangsgründe der rechtslehre (2 ed. 1798). translated by hastie as "kant's philosophy of law" (1887). fichte, grundlage des naturrechts (1796, new ed. by medicus, 1908). translated by kroeger as "fichte's science of rights" (1889). hegel, grundlinien der philosophie des rechts (1821), ed. by gans (1840), new ed. by lasson (1911). translated by dyde as "hegel's philosophy of right" (1896). this translation must be used cautiously. krause, abriss des systemes der philosophie des rechtes (1828). ahrens, cours de droit naturel (1837, 8 ed. 1892). twenty-four editions in seven languages. the german 6th edition (naturrecht, 1870-1871) contains important matter not in the french editions. green, principles of political obligation. lectures delivered in 1879-1880. reprinted from his complete works (1911). lorimer, institutes of law (2 ed. 1880). lasson, lehrbuch der rechtsphilosophie (1882). miller, lectures on the philosophy of law (1884). boistel, cours de philosophie du droit (1870, new ed. 1899). herkless, lectures on jurisprudence (1901). brown, the underlying principles of modern legislation (1912). mention may be made of beaussire, les principes du droit (1888); beudant, le droit individuel et l'état (1891); carle, la vita del diritto (2 ed. 1890); dahn, rechtsphilosophische studien (1883); giner y calderon, filosofia del derecho (1898); harms, begriff, formen und grundlegung der rechtsphilosophie (1889); hennebicq, philosophie de droit et droit naturel (1897); herbart, analytische beleuchtung des naturrechts und der moral (1836); jouffroy, cours de droit naturel (5 ed. 1876); kirchmann, grundbegriffe des rechts und der moral (2 ed. 1873); krause, das system der rechtsphilosophie (posthumous, ed. by röder, 1874); miraglia, filosofia del diritto (3 ed. 1903, transl. in modern legal philosophy series, 1912); röder, grundzüge des naturrechts oder der rechtsphilosophie (2 ed. 1860); rosmini, filosofia del diritto (2 ed. 1865); rothe, traité de droit naturel, théorique et appliqué (1884); schuppe, grundzüge der ethik und rechtsphilosophie (1881); stahl, philosophie des rechts (5 ed. 1878); tissot, introduction historique et philosophique à l'étude du droit (1875); trendelenburg, naturrecht auf dem grunde der ethik (1868); vareilles-sommières, les principes fondamentaux du droit (1889); wallaschek, studien zur rechtsphilosophie (1889). reference may be made to gray, nature and sources of the law, §§ 7-9; bryce, studies in history and jurisprudence, essay 12; pollock, essays in jurisprudence and ethics, 1-30; korkunov, general theory of law, translated by hastings, § 4; bergbohm, jurisprudenz und rechtsphilosophie, §§ 6-15; pound, the scope and purpose of sociological jurisprudence, 24 harvard law rev., 501; pound, the philosophy of law in america, archiv für rechtsund wirthschaftsphilosophie, vii, 213, 285. jhering, der zweck im recht (1877-1883, 4 ed. 1904). the first volume is translated by husik under the title "law as a means to an end" (1913). jhering, scherz und ernst in die jurisprudenz (1884, 9 ed. 1904). reference may be made to the appendices to jhering, law as a means to an end, transl. by husik; berolzheimer, system der rechtsund wirthschaftsphilosophie, ii, § 43 (world's legal philosophies, 327-351); korkunov, general theory of law, translated by hastings, §§ 13-14; tanon, l'évolution du droit et la conscience sociale (3 ed. 1911), pt. i, ch. 3. stammler, ueber die methode der geschichtlichen rechtstheorie (1888). ----, wirthschaft und recht (1896, 2 ed. 1905). ----, die gesetzmässigkeit in rechtsordnung und volkswirthschaft (1902). ----, lehre von dem rechtigen rechte (1902). ----, systematische theorie der rechtswissenschaft (1911). ----, rechtsund staatstheorien der neuzeit (1917). del vecchio, the formal bases of law, translated by lisle (1914). a translation of i presupposti filosofici della nozione del diritto (1905), il concetto del diritto (1906, reprinted 1912), il concetto della natura e il principio del diritto (1908). for critiques of stammler, see berolzheimer, system der rechtsund wirthschaftsphilosophie, ii, § 48 (world's legal philosophies, 398-422); kantorowicz, zur lehre vom richtigen recht; croce, historical materialism and the economics of karl marx, ch. 2; geny, science et technique en droit privé positif, ii, 127-130; binder, rechtsbegriff und rechtsidee (1915); binder, kritische und metaphysische rechtsphilosophie, archiv für rechtsund wirthschaftsphilosophie, ix, 142, 267; vinogradoff, common sense in law, ch. 9. kohler, rechtsphilosophie und universalrechtsgeschichte, in holtzendorff, enzyklopädie der rechtswissenschaft, i (6 ed. 1904, 7 ed. 1913). (not in prior editions.) kohler, lehrbuch der rechtsphilosophie (1909, 2 ed. 1917). translated by albrecht as "philosophy of law" (1914). kohler, moderne rechtsprobleme (1907, 2 ed. 1913). berolzheimer, system der rechts-und wirthschaftsphilosophie (1904-1907). vol. ii, history of juristic thought, translated by jastrow (somewhat abridged) under the title "the world's legal philosophies" (1912), vol. iii, general system of legal and economic philosophy, vol. iv, philosophy of interests of substance, vol. v, philosophy of criminal law, are important for our purposes. see also berolzheimer, rechtsphilosophische studien (1903); barillari, diritto e filosofia (1910-1912); kohler, das recht (1909); kohler, recht und persönlichkeit in die kultur der gegenwart (1914). radbruch, grundzüge der rechtsphilosophie (1914). miceli, principii di filosofia del diritto (1914). tourtoulon, principes philosophiques de l'histoire du droit (1908-1920). demogue, notions fondamentales du droit privé (1911). geny, méthode d'interprétation et sources en droit privé positif (1899, 2 ed. 1919). a book of the first importance. ----, science et technique en droit privé positif (1913). duguit, l'état, le droit objectif et la loi positive (1901). ----, le droit social, le droit individuel et la transformation de l'état (2 ed. 1911). ----, les transformations générales du droit privé (1912). translated in continental legal history series, vol. xi, ch. 3. ----, law and the state (1917). reference may be made to modern french legal philosophy (1916) in the modern legal philosophy series; jung, das problem des natürlichen rechts (1912). see also boucaud, qu'est-ce que le droit naturel (1906); charmont, la renaissance du droit naturel (1910); charmont, le droit et l'esprit democratique (1908); djuvara, le fondement du phénomène juridique (1913); fabreguettes, la logique judiciaire et l'art de juger (1914); leroy, la loi (1908). compare cathrein, recht, naturrecht und positives recht (1901). see also cohen, jus naturale redivivum, philosophical rev., xxv, 761 (1916). spencer, justice (1891). see also anzilotti, la filosofia del diritto e la sociologia (1907); brugi, introduzione enciclopedica alle scienze giuridiche e sociale (4 ed. 1907, 1 ed. 1890); cosentini, filosofia del diritto e sociologia (1905); cosentini, criticismo e positivismo nella filosofia del diritto (1912); daguanno, la genesi e l'evoluzione del diritto civile (1890); eleutheropoulos, rechtsphilosophie, sociologie und politik (1908); fragapane, obbietto e limiti della filosofia del diritto (1897); levi, il diritto naturale nella filosofia di r. ardigo (1904); nardi greco, sociologia giuridica (1906); porchat, sociologia e direito (1902); ratto, sociologia e filosofia del diritto (1894); vadale papale, la filosofia del diritto a base sociologica (1885); vander eycken, méthode positive de l'interprétation juridique (1907). post, der ursprung des rechts (1876). ----, bausteine für eine allgemeine rechtswissenschaft (1880). ----, die grundlagen des rechts und die grundzüge seiner entwickelungsgeschichte (1884). kuhlenbeck, natürliche grundlagen des rechts (1905). a discussion of fundamental problems of jurisprudence from the darwinian standpoint. richard, origine de l'idée de droit (1892). vaccaro, les bases sociologiques du droit et de l'état (1898). translation of le basi del diritto e dello stato (1893). a theory of law as the outcome of class struggles. for critiques of the foregoing, see tanon, l'évolution du droit et la conscience sociale (3 ed. 1911); tourtoulon, principes philosophiques de l'histoire du droit (1908-1920); charmont, la renaissance du droit naturel (1910). tarde, les transformations du droit (6 ed. 1909). first published in 1894. vanni, lezioni di filosofia del diritto (3 ed. 1908). first published in 1901-1902. see also bonucci, l'orientazione psicologica dell' etica e della filosofia del diritto (1907); bozi, die weltanschauung der jurisprudenz (1907, 2 ed. 1911); bozi, die schule der jurisprudenz (1910); cruet, la vie du droit et l'impuissance des lois (1914); grasserie, principes sociologiques du droit civil (1906); jellinek, die sozialethische bedeutung von recht, unrecht und strafe (2 ed. 1908, 1st ed. 1878); lagorgette, le fondement du droit (1907); miceli, le fonti del diritto dal punto di vista psichico-sociale (1905); miceli, lezioni di filosofia del diritto (1908). holmes, the path of the law, 10 harvard law review, 467 (1897); collected papers, 167-202. ehrlich, soziologie und jurisprudenz (1903). wurzel, das juristische denken, 98-102 (1904). translated in the science of legal method (modern legal philosophy series, vol. 9, 421-428). gnaeus flavius (kantorowicz), der kampf um die rechtswissenschaft (1906). kantorowicz, rechtswissenschaft und soziologie (1911). kelsen, ueber grenzen zwischen juristischer und soziologischer methode (1911). brugeilles, le droit et la sociologie (1910). rolin, prolégomènes à la science du droit (1911). ehrlich, erforschung des lebenden rechts, in schmoller's jahrbuch für gesetzgebung, xxv, 190 (1911). ----, grundlegung der soziologie des rechts (1913). ----, das lebende recht der völker der bukowina (1913). page, professor ehrlich's czernowitz seminar of living law, proceedings of fourteenth annual meeting of association of american law schools, 46 (1914). cosentini, filosofia del diritto (1914). ehrlich, die juristische logik (1918). kornfeld, allgemeine rechtslehre und jurisprudenz (1920). see also cosentini, la réforme de la législation civile (1913) (revised and augmented translation of la riforma della legislazione civile, 1911); kornfeld, soziale machtverhältnisse, grundzüge einer allgemeinen lehre vom positiven rechte auf soziologischer grundlage (1911); levi, la société et l'ordre juridique (1911); levi, contributi ad una teoria filosofica dell' ordine giuridico (1914). lecture ii miller, the data of jurisprudence, ch. 6. salmond, jurisprudence, § 9. pulszky, theory of law and civil society, § 173. bentham, theory of legislation, principles of the civil code, pt. i, ch. 1-7. holland, jurisprudence, ch. 6. kant, philosophy of law (hastie's translation) 45-46. spencer, justice, ch. 5-6. willoughby, social justice, ch. 2. paulsen, ethics (thilly's translation), ch. 9. gareis, vom begriff gerechtigkeit. demogue, notions fondamentales de droit privé, 119-135. picard, le droit pur, liv. 9. pound, the end of law as developed in legal rules and doctrines, 27 harvard law review, 195. holmes, common law, lect. 1. post, ethnologische jurisprudenz, ii, §§ 58-59. fehr, hammurapi und das salische recht, 135-138. ames, law and morals, 22 harvard law review, 97. voigt, das ius naturale, aequum et bonum und ius gentium der römer, i, 321-323. stephen, liberty, equality, fraternity, 189-255. maine, early history of institutions (american ed.), 398-400. ritchie, natural rights, ch. 12. demogue, notions fondamentales de droit privé, 63-110, 136-142. jhering, scherz und ernst in die jurisprudenz (10 ed.), 408-425. pound, liberty of contract, 18 yale law journal, 454. ----, the end of law as developed in juristic thought, 27 harvard law review, 605, 30 harvard law review, 201. berolzheimer, the world's legal philosophies, §§ 17-24. figgis, studies of political thought from gerson to grotius, lect. 6. berolzheimer, the world's legal philosophies, §§ 25-27. hobbes, leviathan, ch. 15. berolzheimer, the world's legal philosophies, § 29. korkunov, general theory of law (translated by hastings), § 7. ritchie, natural rights, ch. 3. charmont, la renaissance de droit naturel, 10-43. berolzheimer, the world's legal philosophies, §§ 35-37. korkunov, general theory of law (translated by hastings), 320-322. gray, nature and sources of the law, § 58. berolzheimer, the world's legal philosophies, § 28. mill, on liberty, ch. 4. dicey, law and public opinion in england, lect. 6. berolzheimer, the world's legal philosophies, §§ 43-48, 52. stammler, wesen des rechts und der rechtswissenschaft (in systematische rechtswissenschaft, i-lix). kohler, rechtsphilosophie und universalrechtsgeschichte, §§ 13-16, 33-34, 51. lecture iii geny, méthode d'interprétation et sources en droit privé positif (2 ed. 1919). vander eycken, méthode positive de l'interprétation juridique (1907). mallieux, l'exégèse des codes (1908). ransson, essai sur l'art de juger (1912). see wigmore, problems of law, 65-101; pound, the enforcement of law, 20 green bag, 401; pound, courts and legislation, 7 american political science review, 361-383. science of legal method, modern legal philosophy series, vol. 9 (1917). gnaeus flavius (kantorowicz), der kampf um die rechtswissenschaft (1906). fuchs, recht und wahrheit in unserer heutigen justiz (1908). ----, die gemeinschädlichkeit der konstruktiven jurisprudenz (1909). oertmann, gesetzeszwang und richterfreiheit (1909). rumpf, gesetz und richter (1906). brütt, die kunst der rechtsanwendung (1907). gmelin, quousque? beiträge zur soziologischen rechtsfindung (1910). reichel, gesetz und richterspruch (1915). jellinek, gesetz, gesetzesanwendung und zweckmässigkeitserwägung (1913). kübl, das rechtsgefühl (1913). heck, gesetzesauslegung und interessenjurisprudenz (1914). stampe, grundriss der wertbewegungslehre (1912, 1919). see kohler, lehrbuch des bürgerlichen rechts, i, §§ 38-40; austin, jurisprudence (3 ed.), 1023-1036; pound, spurious interpretation, 7 columbia law review, 379; gray, nature and sources of the law, §§ 370-399; somlo, juristische grundlehre, §§ 110-122; stammler, rechtsund staatstheorien der neuzeit, § 18; pound, introduction to english translation of saleilles, individualization of punishment; saleilles, individualization of punishment, translated by jastrow, ch. 9; pound, administrative applications of legal standards, 44 rep. american bar assn., 445; laun, das freie ermessen und seine grenzen (1910). lecture iv holmes, collected papers, 49-116 (1920). baty, vicarious liability (1916). hasse, die culpa des römischen rechts (2 ed. 1838). jhering, der schuldmoment im römischen privatrecht (1867). rümelin, schadensersatz ohne verschulden (1910). triandafil, l'idée de faute et l'idée de risque comme fondement de la responsabilité (1914). see binding, die normen und ihre uebertretung, i, §§ 50-51; meumann, prolegomena zu einem system des vermögensrechts, 80 ff. (1903); duguit in progress of continental law in the nineteenth century (continental legal history series, vol. xi), 124-128; geny, risque et responsabilité, revue trimestrielle de droit civil, i, 812; rolin, responsabilité sans faute, revue de droit international et legislation comparée, xxxviii, 64; demogue, fault, risk and apportionment of risk in responsibility, 15 illinois law review, 369; thayer, liability without fault, 29 harvard law review, 801; smith, tort and absolute liability, 30 harvard law review, 241, 319, 409; bohlen, the rule in rylands v. fletcher, 59 university of pennsylvania law review, 298, 373, 423; isaacs, fault and liability, 31 harvard law review, 954. lecture v ely, property and contract in their relation to the distribution of wealth, i, 51-93, 132-258, 295-443, ii, 475-549. hobson and others, property, its rights and duties, historically, philosophically and religiously considered (2 ed.), essays 1-3, 5-8. green, principles of political obligation, §§ 211-231. miller, lectures on the philosophy of law, lect. 5. herkless, jurisprudence, ch. 10. russell, social reconstruction, ch. 4. spencer, justice, ch. 12. kohler, philosophy of law, albrecht's translation, 120-133. maine, ancient law, ch. 8. ----, early history of institutions (american ed.), 98-118. ----, early law and custom (american ed.), 335-361. duguit, in progress of the law in the nineteenth century (continental legal history series, vol. xi), 129-146. wagner, volkswirthschaft und recht, besonders vermögensrecht (1894). perreau, cours d'économie politique, ii, §§ 623-695 (1916). de la grasserie, les principes sociologiques du droit civil, ch. 3. cosentini, la réforme de la législation civile, 371-422 (1913). fouillée, la propriété sociale et la democratie (1884). landry, l'utilité sociale de la propriété individuelle (1901). meyer, l'utilité publique et la propriété privée (1893). thézard, la propriété individuelle: étude de philosophie historique du droit (1872). thomas, l'utilité publique et la propriété privée (1904). berolzheimer, system der rechtsund wirthschaftsphilosophie, iv, §§ 1-13. felix, entwickelungsgeschichte des eigenthums (1883-1899). karner, die sociale funktion der rechtsinstitute, besonders des eigenthums (1904). conti, la proprietà fondiaria nel passato e nel presente (1905). cosentini, filosofia del diritto, 250-279 (1914). fadda, teoria della proprietà (1907). labriola, sul fondamento della proprietà privata (1900). loria, la proprietà fondiaria e la questione sociale (1897). piccione, concetto positivo del diritto di proprietà (1890). velardita, la proprietà secondo la sociologia (1898). grotius, de jure belli et pacis, ii, 3, 1-5, ii, 6, 1 and 14, § 1. pufendorf, de jure naturae et gentium, iv, 4, §§ 2-6, 14. locke, on government, ch. 5. blackstone, commentaries, ii, 3-10. kant, metaphysische anfangsgründe der rechtslehre (2 ed.), §§ 1, 6-7, 8, 10, 18-21. hegel, grundlinien der philosophie des rechts, §§ 44, 46, 49. lorimer, institutes of law (2 ed.), 215 ff. lecture vi ely, property and contract in their relation to the distribution of wealth, ii, 576-751. amos, systematic view of the science of jurisprudence, ch. 11. herkless, jurisprudence, ch. 12. kohler, philosophy of law, albrecht's translation, 134-191. de la grasserie, les principes sociologiques du droit civil, ch. 6. duguit, in progress of the law in the nineteenth century (continental legal history series, vol. xi), 100-124. kant, metaphysische anfangsgründe der rechtslehre (2 ed.), §§ 18-21. hegel, grundlinien der philosophie des rechts, §§ 71-81. richte, grundlage des naturrechts, §§ 18-20. williston, contracts, i, §§ 99-204. ames, the history of assumpsit, 2 harvard law review, 1, 53. ----, two theories of consideration, 12 harvard law review, 515; 13 harvard law review, 29. beale, notes on consideration, 17 harvard law review, 71. langdell, mutual promises as a consideration for each other, 14 harvard law review, 496. pollock, afterthoughts on consideration, 17 law quarterly review, 415. hershey, letters of credit, 32 harvard law review, 1. lorenzen, causa and consideration in the law of contracts, 28 yale law journal, 621. pound, consideration in equity, 13 illinois law review, 667 (wigmore celebration essays, 435). index abstract promise 262, 263 acquisition by creation 195 by discovery 195, 201 by occupation 196, 211 civil 196-197 derivative 207 in roman law 194-200 kant's theory of 210-213 natural 195 things not subject to 197 act, as basis of liability 158 acting at one's peril 167, 178 action _de deiectis et diffusis_ 162 _de recepto_ 162 _in factum_ 160 _in personam_ 151 _noxal_ 162 adjudication administrative element in 122-123 steps in 100 administration 108 adjustment with law 137 administrative tribunals 130, 136 ames, james barr 178 analogy, reasoning by 32 analysis 53 analytical application 123-125 reasoning 105 theory 53-54 anglo-saxon law 148 application of law 100 ff. agencies of individualizing 129-138 analytical 123-125 equitable 122, 126-129 historical 125-126 latitude of 120, 129 margin of 112 rules 142 theories of 123-129 aquilian _culpa_ 156, 159, 162 aquinas, st. thomas 25-26 aristotle 25, 38, 76, 82, 138 on application of law 109-110 threefold classification of governmental powers 15 austin, john 172-174, 259 bacon 258 bailment 170, 270, 275 bartolus 37 baty, t. 166 bentham 54, 84 bergson 141 bills of rights 43, 53, 216 binding 164 blackstone 26, 180, 208, 268, 278 buckland, w. w. 161 callings, restrictions on engaging in 88 camden, lord 119 canon law 252, 254 carrier, liability of 186 casuists 254 catholic jurist-theologians 39 _causa_ 259 _civilis_ 248, 250, 251 _debendi_ 251, 254, 255 causation 162, 164 certainty 142-143 change, reconciliation with stability 30, 38 cicero 27, 30, 31, 117 civilization, as a measure of value 98 jural postulates of, 56, 169-179, 284 civil law, 237-240 classes, social, 91 codification, 46-47, 139-140 coke, sir edward, 133 commentators, the, 37 common law, the, and legislation, 139-140 professional view as to, 278 types of delictal liability in, 168 community property, 229 composition, 149, 241-242 compromises, 94-95 conceptions, legal, 116 conditions "implied in law", 259 conduct, application of law to, 137-139 expectations arising from, 189 consciousness, as starting point, 84 consideration, 240, 258-259, 267, 268, 271-273, 278-279 adequacy of, 273-274 circumstances keeping doctrine alive, 278-282 in equity, 258-259, 277 meanings of, 276-277 meritorious, 259 contract analogy of real transactions, 242 anglo-american law of, 257-259 anomalies in law of, 282 bargain theory of, 269, 271-273 by estoppel, 187 categories of, 248 civil-law enforcement of, 238-240 common-law categories of, 274-275 common-law enforcement of, 240 consensual, 249 equivalent theory of, 255-256, 257-259, 269, 273-277 fichte's theory of, 261-262 formal, 245-271 hegel's theory of, 263 historical background of law of, 241 ff. historical category of, 172 historical theory of, 266-269 injurious-reliance theory of, 261 innominate, 249, 261 kant's theory of, 261 metaphysical theories of, 260-265 natural-law theory of, 260 "natural principle of", 45-46 objective theory of, 264-265 oral, 282 philosophy of, 253 philosophical theories of, 241 positive theory of, 265 real, 249, 275 religious origins of, 242-247, 252 roman categories of, 45, 253, 260, 266 romanist theory of, 263-265 simple, 275 specific enforcement of, 238-240 spencer's theory of, 265 subjective theory of, 271 theory of basis in personality, 263-265 theory of inherent moral force, 259-260, 261 third-party beneficiaries of, 273 will theory of, 264-265, 269-271, 281-282 _corpus iuris canonici_, 252 court and jury, 111 courts, contest with crown, 53 _culpa_, 170, 175 abstract standard of, 177 concrete standard of, 178 contractual, 170 delictal, 170 culpability 158 as basis of liability 184 fiction of 158, 178 custody 222-223 d'aguesseau 254 debt 174, 244, 275 defamation 280, 281 delicts, equitable 159 historical category of 172 nominate 162, 169-170, 175 demosthenes 22 _depositum_ 249 derivative acquisition 207 derry v. peek 281 dicey, a. v. 184 digest of justinian 107 discovery 195, 201 discretion 117, 119, 129 margin of 132 of the chancellor 130-133 relation of to rule 112, 141-143 dispensing power 113 distributions, statute of 142 division of labor 56, 176, 191 doctor and student 252, 259 doe, chief justice 185 _dolus_ 156, 159, 169, 175 _dominium_ 199, 225 due care 170, 175 standard of 119-120 duguit, l. 98, 232 dumoulin 39 dunedin, lord 276 duress 159 duties 173 relational 85 economic interpretation 66-67, 179-180 eldon, lord 47 empiricism, judicial 34, 283 juristic 34 end of law 54, 59-99 as a measure of value 96 greek conception of 74-77 ideals of as basis of juristic theories 71-72 keeping the peace as 72-74 maximum individual self-assertion as 84-87 medieval conception of 78-80 nineteenth-century conception of 83-85 preserving social _status quo_ as 74-81 rise of new ideas as to 87-99 roman conception of 77-78 theories of 72-99 english juristic theory 64 englishmen, common-law rights of 43, 53 enterprises, conduct of 137-189 equality 82-85 equitable application of law 122, 126-129 equities 121 equity 28, 47, 57, 59, 117, 130-133, 137-138, 258-259, 271 and natural law 41, 102, 112, 114, 153, 178 of the tribunal 102 provision for a child as consideration in 272, 274 securing a creditor as consideration in 272 settlement on a wife as consideration in 272, 274 will not aid a volunteer 272 ethical interpretation 266 _familia_ 200 fichte, theory of contract 261-262 fictions 102-108, 115 dogmatic 179, 180, 274 of culpability 178-179 of negligence 179 of representation 166, 179 of undertaking 171 _fiducia cum amico_ 249 fifth amendment 51 finding law 100, 104-105 form and intention 154-155 formal contracts, 245, 271, 275 historical origin of, 245-247 formal undertaking, 155 forms in primitive thinking, 247-248 formulas, elasticity of, 121 fortescue, 38 fourteenth amendment, 51 freedom of contract, 191, 265, 267-269 freedom of industry, 191 french civil code, 48, 162, 163 law of delictal liability, 167-168 monarchy, legal theory under, 64 functional attitude, 91 generalizations, 145 general security, 72, 96, 149-150, 171, 175, 176, 179, 193, 282 how infringed, 177 germanic law, 36, 41, 79, 251, 254 gifts, reformation of, 273 gloss, the, 37 glossators, 40 good faith, 153, 155, 157, 170 corollaries of, 188-189 gray, j. c., 102 greek city, problem of order in, 75 security of social institutions in, 75 greek law, 20-27, 151, 175 greek philosophers, conception of the end of law, 35, 74-77 conception of the nature of law, 81 conception of the general security, 74 on subjects of litigation, 97, 241 grotius, 196, 205-207, 260 hammurapi, 60 hard bargains, 132 hegel, 84, 216, 274 theory of contract, 262 theory of property, 214-216 heraditus, 76 hindu law, 226-227, 243-245 hippodamus, 241 historical application of law, 125-126 historical categories, 172 historical school, 279 holmes, mr. justice, 166 household, partition of, 226-227 husband and wife, 188 matrimonial property regime, 229 _hybris_, 77 idealism, juridical, 41-42, 91 idealistic interpretation, 266 _imperium_, 199 "implied" undertakings, 158, 171 individual free self-assertion, 54 individualization, 111, 113-114 by juries, 133-134 in criminal procedure, 138 in punitive justice, 134-135 judicial, 120-121 moral element in, 137 of penal treatment, 129-130 individual life, 96 inheritance, 139 innkeeper, liability of, 186 insult, 151 intention, 189 as source of liability, 157 interdependence, 56 interdicts, 200 interests, 89-90 compromises of, 94-95 delimitation of, 192 giving effect to, 90 group, 225 harmony of, 96 individual, in promised advantages, 236 intrinsic importance of, 95 inventory of, 90 of substance, 139, 237 recognition of, 90, 192 securing of 96, 97 valuing of 89, 95-99 weighing of 89, 94 interpretation 51-52, 100 fiction of 102-108 genuine 105, 124 relation to law making 105 jessel, sir george 268 judicial, contrasted with administrative 108 jural postulates 169-179, 188, 192-193, 193-194, 237, 249, 284 juridical idealism 41-42, 91 jurisconsults 30, 43-44 jurisprudence, problems of 111 juristic theories, nature of 69 jurists, metaphysical 52, 68 search for the more inclusive order 145 seventeenth and eighteenth-century 43-44 jurist-theologians 39 spanish 81-82, 83 jury 129, 133-134 lawlessness of 138 _jus_ 31 _jus disponendi_ 221 just, the, by nature or by convention 25, 27, 31, 55 justice, aristotle on 25, 77 definition of in the institutes 77 executive 137 idea of 65 without law 102, 113 justinian, institutes of 77-78 kant 84, 202, 219, 260 theory of contract 260-261 theory of property 210-214 kenyon, lord 47 kin organization 74 _laesio enormis_ 274 langdell, c. c. 259 law, adjustment with administration 137 and morals 27, 30, 41, 111, 112 application of 100 ff. as an aggregate of rules 110 as a body of agreements 63 as a body of commands 64 as a body of divinely ordained rules 60 as a keeping of the peace 72-74 as a reflection of divine reason 63 as a system of principles 62, 66 as custom 61, 62 as declaratory of economic or social laws 67-68 as precepts discovered by experience 65 as recorded traditional wisdom 61 as restraint on liberty 60 as rules imposed by dominant class 66 as standing between the individual and society 53 as unfolding an idea of right 65 basis of authority of 19, 23-24, 27, 28-29, 38, 69-72 byzantine theory of 110 distinguished from rules of law 24 elements of 115-116 end of 35-36, 59 ff. effectiveness of 193 finding 100, 104-105 forms of 27-28 government of 136 historical theory of 65, 68 how far made 107-108 idea of self-sufficiency of 17, 67 judge made 35 jurist made 35 maturity of 48, 59, 102 merchant 155, 271, 275 nature of 59, 91, 111 nature of theories of 68-69 political theory of 68 restatement of the 282 science of 101 soft spots in the 282 theories of the nature of 60-68 law making, judicial 105 presuppositions of 59 legal standards 51, 114, 116-120, 129, 141 legal transactions 153 _bonae fidei_ 248 categories of 247 formal 249 _stricti iuris_ 248 lending 150 letters of credit 275, 276-277 _lex_ 31 _lex aquilia_ 159 liability, absolute 179 act as basis of 158, 182 analytical theory of 152-153 as corollary of fault 163-164, 166, 168, 181, 187, 283-284 basis of delictal 177 delictal 163, 167-169 elements of 162-163 employer's 163 fault as basis of 160, 163-164, 167 for cattle going on vacant lands 180-181 for injury by animal 163, 164, 180 for injury by child 159 for injury by minor 162 for injury by a _res ruinosa_ 162 for injury by slave 159 for intentional harm 168 for negligence 175, 180 for non-restraint of agencies 176 for tort, basis of 167 for tort, common-law theory of 168-169 for trespassing cattle 180 for unintended non-culpable harm 168 for unintentional culpable harm 168 for vicious animals 182, 186 from culpability 184 from legal transactions 187 fundamentals of 174 historical anomalies in 166, 179, 186 in french law 161-164 intention as basis of 157, 160 justifiable reliance as basis of 189 meaning of 147 natural sources of 156 noxal 159 of carrier 186 of innkeeper 159, 160, 186 of master of ship 159, 160 of stable keeper 159, 160 on "implied" terms of transaction 170 philosophical theories of 193-194 primitive grounds of 149-151 quasi-contractual 156 quasi-delictal 156 relational 186-188 to make restitution 187 theories of 148 will-theory of 157, 177, 179, 189 without fault 156, 162, 166, 177, 179 liberty 84-85 idea of 65, 267 idea of as source of liability 157 law and 60 locke, john 208 lorimer, james 218 louis ix 128 magistrate, power of 112 maine, sir henry 208 _mala prohibita_ 26 mandate 272 mansfield, lord 47, 260, 262, 273 manu 60 maturity of law 48, 59, 102 maxims 34 metaphysical jurists 92 _metus_ 159 middle ages, conception of end of law in 78-80 idea of law in 77-81 juristic need in 36 miller, w. g. 216-217 mining customs 195 law 201, 222 minos (pseudo-platonic dialogue) 24 mosaic law 60 _mutuum_ 249 narada 244 nationalism in law 39 natural, meaning of in philosophy of law 31-32 natural law 25, 31, 35, 40, 41, 45-52, 55, 154, 166, 209, 253, 278, 280 american variant of 50 as a theory of growth 33-34 as deduced from "a free government" 52 as ideal critique 52 economic 205 theory of 42 natural obligation 250 natural reason 202 natural rights 15, 42-43, 55, 83, 92-93, 146, 204, 205 historical-metaphysical theory of 52 theories of 44-45 to produce of labor 209 nature, meaning of in greek philosophy 31-32 state of 45 necessary distinctions 172, 174 negative community 207 negligence 119-120, 165, 168, 177, 179, 270, 280 fiction of 179, 180 in speaking 280, 281 _per se_ 179 neo-hegelians 94, 98 neo-kantians 93, 98 new york, code of civil procedure 105 _nexum_ 249 _nomos_, meanings of 22 noxal liability 159 _nudum pactum_ 246, 254, 273, 280 oaths and vows 251 obligation, civil 252 _ex contractu_ 146, 172 _ex delicto_ 146, 172, 174 _ex uariis causarum figuris_ 16, 172 meaning of 147 moral basis of 250 natural 250, 252-253 nature of 145 oaths as basis of 251-252 _quasi ex contractu_ 257 religious 244 will as basis of 250 occupation 196, 211 as a legal transaction 213-214 office or calling, duties attached to 173 options 272, 274 ownership, analytical theory of 222-224 development of the idea of 221-231 dogma that everything must be owned 199 things excluded from 199 _pacta donationis_ 272 pacts 248, 250, 261, 275 partition 226-227, 228 part performance 282 paul, st. 77 _peculium_ 227-228 _pecunia credita_ 249 _pedis possessio_ 222 penal treatment, individualizing of 129-130 penalty, for delict 149 of reparation 149 personal government 135-136 personality 191 pessimism, juristic 57 petty courts 130, 138 philosophers, attempt to unify law and law making 19 attempt to reconcile authority with need of change 19 quest for an ultimate solving idea 19 philosophical thinking, achievements of in law 16-18 as a force in administration of justice 16 needs determining as to law 18 possibilities of in law of contracts 284 plato 24, 76 pledge 251 political interpretation 266 positivism 54-56 possession 233-234 post-glossators 37 pothier 45 primitive law 72-74 faith of in verbal formulas 154 primogeniture 50 principles 34, 53, 116 procedure 111 proculians 196 promised advantages 191 promises, abstract 255, 262, 263 an element in wealth 236 exchange of 254 "from ostentation" 256, 280, 281 moral duty to keep 262 philosophical theory of enforcing 283 simple 275 theories of enforcing 269-276 theory of inherent force of 259-260 promissory oath 150-151, 251 property, acquisition of 194-200, 204 analytical theory of 221-224 basis in creation 209 basis in division by agreement 205 basis in economic nature of man 205, 209 community 229 effectiveness of law as to 193 grotius' theory of 205-207 hegel's theory of 214-216 historical development of law of 224-232 historical theory of 219, 221-232 household 226-227, 229 inequalities in 215, 221 in natural media of life 201-202 jural postulates of 193, 194 kant's theory of 210-214 law of 141 lorimer's theory of 218 medieval theory of 202 metaphysical theories of 210-218 modes of acquiring 194-202 "natural" acquisition of 195 natural-law theories of 204-210 natural limits of right of 195 negative community in 207 philosophical theories of 194 ff. positive theory of 219-221 psychological theory of 209, 23, 234 restrictions on appropriation of 88 restrictions on use and disposition of 87-88 self-acquired 227-228 seventeenth-century theory of 202 socialization of 233 social-utilitarian theory of 225 sociological theories of 232 spencer's theory of 219 theories of 202-225 theory of in anglo-american law 208 theory of in antiquity 202 things not subject to 197 titles to 195-197, 211 twentieth-century theories of 232 protestant jurist-theologians 39 psychology 90, 94, 279-280 publicists, french 110 public utilities 117, 136 exemption of from competition 88-89 power to contract 187 pufendorf 207-208 punitive justice 111 individualization of 134-135 quasi-delict 161, 162 _ratio legis_, doctrine of 32, 46 reason, excessive faith in 39, 46-47 reform movement, legislative 47, 85 relations 171 duties attached to 173 economic value of 192 interference with 192 legal protection of 193 release 272, 274 religion 242 ff. reparation 149 representation 179 _res communes_ 197, 198, 199, 207, 210 _extra commercium_ 197, 201, 216, 217 _ipsa loquitur_ 180, 185-186 _nullius_ 199, 205 _publicae_ 198, 210 _religipsae_ 198 _ruinosa_ 162-163 _sacrae_ 198 _sanctae_ 198 responsibility at one's peril 167 right, idea of 65 natural and conventional 15, 25-26, 31 rights, _in personam_ 146 _in rem_ 147 roman conception of end of law 77-78 jurisconsults 30, 43 roman law 26, 36, 41, 45, 105-106, 145, 151, 155, 170, 173-174, 195, 199, 200, 225, 228, 245-250, 254, 275 as basis of medieval law 40 as basis of law in xvii and xviii centuries 41 contribution of to legal philosophy 36 rousseau 214 rules 115-116 adapted to commercial transactions 141 adapted to property 141 and discretion 141-143 application of 142 as guides 121 mechanical application of 142-143 rylands v. fletcher 168, 182-186 sabinians 196 sale 249 satisfaction of wants, as an ideal 98-99 savigny, f. c. von 213 scholastic philosophy 36 permanent contribution of 38 seals 240, 271, 275 contract under seal 255 security of transactions 193, 237 seisin 225 self help 73 seller's talk 280 separation of powers 102-103, 107 set off 250 social contract 204 social control 99, 225 social engineering 99 social ideal 56 as a measure of values 98 social interdependence 232 as a measure of values 98 social interests 99 in peace and order 148 in security of transactions 237 social laws 54-55 social order, feudal 79-80 idealized form of the 35 static 85 social sciences, unification of 91 social status quo, as end of law 35-36 social utilitarianism 92-98 socialists 209 society, greek conception of 79 jural postulates of civilized 169-179 kin-organized 73-74 medieval conception of 79 sociology 94 _sophrosyne_ 77 sovereignty, byzantine theory of 40 specification 195 specific performance 131-132, 238-240 spencer, herbert 84, 97, 201, 265 his law of equal freedom 219 his theory of property 219-221 spirit and letter 154 standards, legal 51, 114, 116-120, 129, 141 _stare decisis_ 140 status to contract 266 statute of frauds 282 statute of uses 277 stipulation 246 of counsel 273, 274 stoics 197 strict law 33, 101, 112-113, 153, 155, 165, 280 substance, interests of 139, 225 super constitution 15, 51 symbols 248 teleology, legal 92 theories of law, elements in 70-71 third-party beneficiaries 273 title, by creation 195 by discovery 195 by occupation 196, 211 "natural" 195 "tort of negligence" 105 torts 283 development of liability for 164-167 generalization of liability for 167 law of 117, 167 nominate 164, 165, 170, 175, 283 _traditio_ 249 trust, constructive 173 gratuitous declaration of 272, 274 twelve tables 249 unjust enrichment 173, 187 utilitarians 267, 268 utility 53 value, criteria of 89, 95-99 vrihaspati 243 waiver 272, 274 wants, as juristic starting point 89-90 limitations on satisfaction of 97-98 satisfaction of 89-90 warranties 174, 249 whale fishing 195 will, as basis of liability 157, 169 as basis of obligation 250 as juristic starting point 84, 89 will theory 189 of contract 264-265 williston, s. 282 wills, harmonizing of 84, 90, 92-93 workman's compensation 167 storrs lectures published by yale university press the reform of legal procedure. by moorfield storey. the judiciary and the people. by frederick n. judson. concerning justice. by lucilius a. emery. woman's suffrage by constitutional amendment. by henry st. george tucker. the nature of the judicial process. by benjamin n. cardozo. transcriber's notes 1. passages in italics are surrounded by _underscores_. 2. the original text includes greek characters. for this text version these letters have been replaced with transliterations. 3. the following misprints have been corrected: "predicability" corrected to "predictability" (page 33) "aristole" corrected to "aristotle" (page 313) 4. other than the corrections listed above, printer's inconsistencies in spelling, punctuation, and hyphenation have been retained. generously made available by the internet archive.) the lawyer in history, literature, and humour. edited by william andrews, f.r.h.s. "a welcome addition to the lighter literature of the law."--_the times._ "a considerable amount of historical and literary information."--_daily news._ "an entertaining work. it is rich in the lore and the humour of the law, and ought to be as interesting to the layman as to the lawyer."--_the globe._ "a handsome volume.... the work is printed and got up in a style that does credit to the well-known firm of publishers."--_chester courant._ [illustration: trial of a pig at lausanne in the fourteenth century.] legal lore: curiosities of law and lawyers edited by william andrews. london: william andrews & co., 5, farringdon avenue, e.c. 1897. preface. the favourable reception given to my volume issued under the title of "the lawyer in history, literature, and humour," has induced me to prepare, on similar lines, the present book, dealing with curiosities of the law. i hope those who are interested in the study of the byways of literature may find entertainment and instruction in its pages, and that it will win a welcome not only from the legal profession, but from the reading public. i am enabled by the courtesy of messrs. chatto & windus, to reproduce for my frontispiece, an illustration from a work published by them, under the title of "credulities past and present." william andrews. the hull press, 10th december, 1896. contents. page bible law. by s. burgess, m.a. 1 sanctuaries. by william e. a. axon, f.r.s.l. 13 trials in superstitious ages. by ernest h. rann 23 on symbols. by george neilson 43 law under the feudal system. by cuming walters 58 the manor and manor law. by england howlett 83 ancient tenures. by england howlett 95 laws of the forest. by edward peacock, f.s.a. 109 trial by jury in old times. by thomas frost 122 barbarous punishments. by sidney w. clarke 132 trials of animals. by thomas frost 149 devices of the sixteenth century debtors. by james c. macdonald, f.s.a., scot. 161 laws relating to the gipsies. by william e. a. axon, f.r.s.l. 165 commonwealth law and lawyers. by edward peacock f.s.a. 179 cock-fighting in scotland. 197 cockieleerie law. by robert bird 200 fatal links. by ernest h. rann 205 post-mortem trials. by george neilson 224 island laws. by cuming walters 237 the little inns of court. 258 obiter. by george neilson 267 index 277 legal lore. bible law. by s. burgess, m.a. at the very outset of any treatment of so delicate a subject as that indicated by the title of this chapter, we are met by no small difficulty. this consists in the danger of committing unintentional errors of irreverence, and thus offending the prejudices of those who are more or less pledged to their belief in the verbal inspiration of every bible chapter and verse. with this risk before us, we can only trust to our own sense of a rational view of a subject so full of capabilities of misconstruction. those of us who can remember the outburst of righteous indignation at the publication of the "essays and reviews" and of "ecce homo," feel surprise at the quiet indifference with which views expressed in them are now received. this does not at all, or necessarily, mean that men's faith is colder, or that the spirit of reverent religious feelings has died away. the advance of accurate scientific investigation may have upset the faith of some, and given a subject for outbursts of intolerant pulpit denunciations, but we must think that there are signs plainly discernible of a quiet acceptation of modern discovery by the majority of thoughtful and devout believers in the inspiration of holy scripture. these remarks will be found not unneedful as we pursue the examination of this particular branch of biblical study, namely, the law as it is found in the bible, and this will be seen at once when it is laid down as an absolutely necessary condition of our investigation that this same law can plainly be divided into two distinct portions--that which is of divine, and that which is of human origin. the bare statement of this fact will offend certain prejudices. the divine "fiat" stamps with as marvellous and undoubted clearness, certain portions, as other parts are marked by the progress of human intelligence, the needs of human society, and the force of the human will. the very fact of the existence of law entails the necessity of penalty, and this may be spiritual or corporal. the former depends on the acknowledgment of the rule over us of a superior being. the latter is a necessary accompaniment of all and every human life, believing or unbelieving. so in the bible law we can easily distinguish between the penalty affixed to the breaking of the first of the ten commandments, and that which followed on the breaking of the sixth. on the authority of hebrew scholars, we are told that the use of the hebrew article shows that _the law_ refers to the expressed will of god. if this rule be invariable, it would be of great value, and especially so in the use of the greek article. the writers of the psalms gave forth an intense reflection of the old law; always presuming, as they of course did, that it emanated from the deity. now let us be allowed to start with the assumption that the mosaic is the earliest form of tabulated law. a most excellent book has just been published, "the history of babylonia," by the society for promoting christian knowledge. it is a cheap little book, but full of information upon which one feels able to rely. we find there that the moral law of babylonia represents the spirit of bible law so accurately that it would be absurd to set up any theory of an independent basis. we must make a date somewhere, and therefore we cannot do better than choose a date that can be fairly tested, and safely on this side of mythical eras,--and that is about 1500 b.c. this must appear a very safe and modest date to fall back upon. the babylonians want us to go back 432,000 years, but to accept this assertion requires more faith than most of us possess. for our present purpose there is nothing gained by comparing the mosaic law with that discovered with such infinite care and learning in the babylonian records. the utmost that can be said is that we have startling coincidences, and an intensely interesting subject opened out. but there is no single grain of information, and that is what we are just now in search of. we feel quite distrustful of documents, especially _stone_ ones, which give the lifetime of alorus as extending to 36,000 years. that was before the deluge. the wandering jew sinks into insignificance, and is a mere puling infant by the side of such figures as these, because the son of alorus reigned for 46,800 years. however short the "year" was, the period of life was quite lengthy. if a year was our week, the last named patriarch was about 1,000 years old. this is a departure somewhat from the law as it is in our bibles. but it will be an interesting study for some kind student to compare that law with the echoes thereof found in asiatic literature, even far away on the eastern shores of china. the mystery still unsolved is, "_how did it get there?_" with the greatest diffidence we make the statement that the first notion of law was in connection with sacrifice. the time may come when this can be refuted. but at present, leaving out of the question natural and unwritten law, we find no bond but this. sacrifice comes to us as a law from a superior being. heathen nations have recognized the efficacy of sacrifice and offerings. man without law was an impossibility. no living thing can exist without some law. thus we look back to the first records of created living things for some law. science sheds a great, broad, and even scaring, light on the law prevailing over inanimate nature. the seas and the fields obey it. but for us to make a record of law as it made its beginning, is a task too great, and it is indeed then we feel that "fools may rush in" where better souls have had to languish in doubt. let us take the law in the bible as we can read it, and how few care to read it! there was a man once who had read the whole of the first five books through _twice_. thinking there might be something to gain from such abnormal study, we propounded a few questions on this very subject. the result was a senseless repetition of verses from leviticus. and yet, to tell the honest truth, there is very little left us to do but to _quote_. there is a little assistance we can give, and most thankful we are to have it in our power to do so. let us all the time remember that the bible law is the sole foundation of every law, human and divine, as far as we can discover. if it can be proved that the babylonian record with its 40,000 year old kings is to be relied on, then by all means let us accept it. we start with the sacrifice as the "_companion_" of the law. no one can feel hurt by this. it is no good to any of us to ask whether abel's sacrifice was according to revealed law or anterior to it. it is plain that sacrifice came to be the great medium of the law between man and the great prevailing law. with this allowed, all the rest is easier to grasp. the early law among the first people seemed to have no force but in its connection with some higher power. this power has been now deputed to earthly sources. the writers of the psalms represent to us a perfect intercourse with the deity. the question then arises, "on what grounds was this intercourse conducted?" the answer seems clearly to be on the conditions of the laws of sacrifice. now, by comparing the elaborate list of these contained in smith's "dictionary of the bible" with a very careful one in "notes on the hebrew psalms," by w. r. burgess (1879), we can make out a clear and very useful _resumé_. leaving out the great sin offerings for the _whole people_ and for the priests, we have the following sin offerings:-1. for any sin of ignorance. lev. iv. a most elaborate ceremonial of sacrifice and blood sprinkling. we should like to know when the "plea of ignorance" was done away with altogether, as we believe it has no force at all in modern law. 2. for refusal to bear witness on oath. lev. v. this is of very great interest in the light of recent legislation as to affirmation. we have come across many people, it is needless to add grossly ignorant, who have entirely lost sight of the obvious emphasis on the word "false" in the 9th commandment, placing the whole force on the fact of "witness." 3. the laws as to defilement. these, we presume, have left no trace on modern law. 4. the breach of a rash oath, the keeping of which would involve sin. lev. v., 4. this opens a most interesting subject, but we have not space to enter upon it. from the days of jephthah and his oath with regard to his daughter until this day, the question has been full of difficulties, and is divided amongst, perhaps, equal advocates for the two opposed views of it. 5. sacrilege in ignorance, fraud, _suppressio veri_, and perjury, were punished by enforced compensation, and the addition of a fifth part of the value concerned in the matter to the priest, or to the person wronged. 6. illtreatment of betrothed slaves. lev. xix., 20. this is only curious, but at the same time has a connection with late enactments in criminal law. 7. the law as to the powers of a father is extraordinary. when one considers the relation now existing and defined by our law, the revolution is beyond all measure out of reasonable proportion. for a curse, a blow, or even wilful disobedience, the penalty was _death_! 8. the law of usury is difficult, but the chief points are well known. the main principle of the law prevails to this day. let us only notice the striking fact that usury could not be exacted upon the jews themselves. does this not offer a fine comment on the grievous usury so cruelly enforced in after years by these people upon the _gentile_ races? 9. debt. all debts were released at the seventh year. so there was a year of limitation. 10. tithe. this law has been so frequently and ably set forth, that it is entirely one's own fault if it needs any comment. 11. poor laws. these are conspicuous by their absence. there was a legal right of gleanings, a second tithe to be given in charity, and wages were to be paid day by day. (deut. xxiv.) a few rather important forms of legislation must be placed here as addenda. we notice the entirely despotic power of the husband over the wife, and all belonging to her. compare _our_ useful but very late enactment as to married women's property, apart from her almost complete irresponsibility. the slander against a wife's virginity is punished by a fine only, but the fact of its truth, and therefore no longer a slander, is punished by the death of the woman. this is a most striking proof of the lower room in social judgment awarded to the female israelite. we notice also that the power of the master over his servant was absolute, but that the master suffered a penalty if his servant or slave died under castigation! ex. xxi. if he was maimed, he was by this fact allowed his freedom. the rule as to _hebrew_ slaves is very interesting. it is too long to be quoted here, but it can be easily mastered by a reference to ex. xxi., deut. xv., lev. xxv. we notice that there is no protection _legally_ allowed to _strangers_, and so we find kindness and protection enjoined as a sacred duty. we believe that the old list of "prohibited degrees," which we saw placed in churches in our infancy, and is still to be seen, is in all respects enforced by our present law. but we are not quite sure of this. we can only remember the vague sense of mystery underlying the clause, which was always put in the largest type:- "a man may not marry his grandmother." another most interesting law must be carefully noticed, and if possible, more deeply studied. in cases of accidental homicide, there was mostly an "avenger of blood" to be looked for. to escape this untoward follower, cities of refuge or sanctuaries were named, and in these the poor wretch was safe until the death of the high priest. as to the legal penalty of adultery, are we quite sure that, according to results, we have greatly improved upon the old bible law? under this the punishment was _death_ of _both offenders_. was it the fear lest the population of the world should be so very seriously lessened that gradually brought this law to less than a penal one, so that at this day a royal "commission" is placed on the offence in the shape of the absolute freedom of the offenders to seek for _another opportunity_? just a few words more as to those who interpreted the law. these were the priests and the levites. the "judges," as we read of them in the book of that name, had, with the exception of samuel, mostly to do with the settlement of political disputes, and the leading out of the people to victory or defeat, as the case might be. but in later times the power of the sanhedrim was undoubtedly great. the king's power was legally limited. but so it is, and has been, in all ages and in all dominions _in theory_! yet we find rehoboam expelled by jereboam, and the latter as despotic as the former, just as we find a firm will in cromwell after the despotism of charles, in what had been then for centuries the most "constitutionally" governed country in the world! sanctuaries. by william e. a. axon, f.r.s.l. in all ages men have attributed a special sanctity to certain localities, usually those devoted to the purposes of worship, and this sentiment has in many lands been utilised in the interests of mercy by exempting those within the precincts from arrest for some, or even all, crimes and offences. in the earlier stages of development, the punishment of crime was not regarded as a duty of the community, but as an obligation, or privilege of the injured or of those nearest to him in blood or social relationship. thus the son of a murdered man had the right to murder the murderer. the general principle of the earlier forms of justice is the _lex talionis_, but the infliction of the penalty was mostly in the discretion of the avenger. he might be afraid to attempt to slay a strong or powerful homicide, and be willing to pardon the offence for a money consideration. a criminal who took refuge in a sacred place secured at least a breathing time in which his friends might effect a compromise with his adversary. greece had its famous _asyla_, but the custom of our own country was probably influenced from hebrew rather than classical sources. in the narrative of the death of joab, the hesitation of benaiah shows that it was unusual to slay one who had taken hold of the horns of the altar. the six cities of refuge were appointed as places of safety for involuntary homicides, where they were protected from the avenger of blood. amongst our anglo-saxon ancestors, the church exerted a moderating influence. every consecrated church had the right to shelter the fugitive from justice for seven days, and when the building was needed, he might be placed in a house provided for that purpose by the church, which was not to have more doors than the church itself. if the criminal was dragged forth from his refuge, the violators of the sanctuary were fined in varying degrees according to the rank of the ecclesiastical edifice. in addition to the inherent right of each church, special privileges were conferred on certain places by the exercise of the royal prerogative. in 1378, it was decided that the property of fraudulent debtors who had taken sanctuary should be liable for the satisfaction of the claims of their creditors. in 1486, pope innocent viii. issued a bull relating to english sanctuaries, by which it was provided that when the refugee left his asylum, he lost his right of protection, even though he subsequently returned to the sanctuary. at the same time, the king was empowered to appoint keepers to look after those who having been accused of treason, had taken sanctuary. great changes were made in the law during the reign of henry viii. traitors were wholly exempted from the privilege; those abjuring the realm were not actually banished, but were to remain throughout life in the sanctuary, and if they left it and committed any offence, they might then be brought to trial. all inmates were to wear a badge twenty inches in length and breadth, were forbidden the use of weapons, and were not to leave their lodgings between sunrise and sunset. in 1538, the right of sanctuary was further restricted, and wells, manchester, northampton, york, derby, and launceston were declared sanctuaries. manchester found this privilege to be of such doubtful value that two years later it was transferred to chester, and afterwards to stafford. in the reign of james i., the right of sanctuary was abolished almost everywhere. the palatine counties had their special sanctuaries. in cheshire, hoole heath, overmarsh, and rudheath were such places of refuge. the abbey of vale royal had also a grant. but generally the county palatine of chester was a place of resort for those who had come into conflict with the law in other parts of the kingdom, and it was not until the reign of charles ii. that the king's writ ran in the palatinates and other privileged places. many privileged places in london, westminster, and southwark were brought within the regular jurisdiction in the reign of william iii. and george ii. we have an instructive picture of the working of the sanctuary system in the case of manchester. the act of 32 hen. viii., c. 8, abolished the right of refuge in all places except, and the exception is a considerable one--churches, hospitals, and churchyards. perhaps a more important exception was that sanctuary was to be denied to those guilty of murder, rape, highway robbery, burglary, house-burning, or sacrilege. whilst abolishing many sanctuaries, certain additional places were named as cities of refuge for minor offenders. one of these was manchester. a year later the town petitioned to be relieved from this distinction. the inhabitants set forth that manchester had a great trade in the bleaching of linen yarn, and in the making of linen and woollen cloths and dressing of cotton, and that the influx of dissolute persons to the sanctuary had caused serious damage to the prospects of the town, which, having no mayor, sheriff, or bailiff, and no jail, was badly circumstanced for dealing with these lawless invaders. the request was granted, and the sanctuary removed from manchester to chester. but the city of the deva found it desirable to obtain relief, and a further removal was made to stafford. the fridstool at hexham still remains, although nearly everything else of the saxon foundation has perished. this "chair of peace" was the central point of the sanctuary, which extended a mile around. a durham example of the working of the law may be cited. "memorandum: that on the 13th day of the month of may, a.d. 1464, one colson, of wolsyngham, durham, who had been detected in a theft, and therefore put and detained in gaol, at length contrived to escape, and fled to the cathedral church of durham, in order to avail himself of its immunities, and whilst he was there standing near the bier of st. cuthbert, prayed, that a coroner might be assigned to him. upon john raket, coroner of the ward of chester in strata (sic) coming to him, the same colson confessed the felony, making upon the spot the corporeal oath that he abjured the realm of england, and would withdraw from it as soon as he could conveniently, and would never return thither, and which oath he took at the bier of st. cuthbert in the presence of master george cornworth, sacristan of the cathedral church of durham; ralph bows, knight and sheriff of durham; john raket (the coroner); robert thrylkett, deputy sheriff; hugh holand, and nicholas dixson, and of many others; by reason of which renunciation and oath all the dress of the said colson belonged to the said sacristan and his office; wherefore the said colston was enjoined to take off to his shirt all his garments, and deliver them to the aforesaid sacristan, and he did so, placing them all into his possession, the sacristan gave up and delivered to him again, gratuitously, all his dress that he had up to this occasion been clothed in; and after that colstone withdrew from the church, and was handed over to the nearest constable by the aforesaid sheriff, and so on from constables to constables, holding a white cross made of wood as a fugitive, and so he was to be conducted to the nearest seaport to take vessel as one never to return. this was done on the day, month, and year aforesaid."[1] the system was one that led to gross abuse. it was held that the right did not extend to others than those whose offences entailed forfeiture of life and limb, but in practice knavish debtors, fraudulent executors, etc., availed themselves of the protection. there was plenty of scope for dispute as to jurisdiction. in 1427, the abbot of beaulieu was required to give proof of his right to shelter william wawe, who is described as a heretic, traitor, common highwayman and public robber. "wille wawe was hanged," is the sum of the matter as recorded by stowe. between 1478 and 1539, at durham, 283 persons took refuge who were, as principals or accessories, accused of homicide. there were sixteen debtors, four horse-stealers, nine cattle-stealers, and four house-breakers. one had been charged with rape, and seven with theft. one had been backward in his accounts, one had harboured a thief, and one had failed to prosecute. sir john holland, in revenge for the death of his esquire, killed the son and heir of hugh, second earl of stafford, and then took sanctuary at beverley. the murderer, in this case, was the half-brother of richard ii., but it was with great difficulty that the king was induced to grant a pardon. the church of st. john of beverley had a charter from athelstan, and near the altar was the fridstool, or chair of peace, "to which what criminal soever flies hath full protection." the privilege extended for a radius of about a mile round the minster, and the limits were marked by stone crosses. infraction of the right of sanctuary was punishable by severe penalties, and to take a refugee from the fridstool was to incur both secular and ecclesiastical penalties, the latter extending to excommunication.[2] the widow of edward iv. fled with her younger children for safety to the sanctuary of westminster after her eldest son had fallen into the keeping of the duke of gloucester. sir thomas more reports the discussion in the council of the protector, and the arguments used by cardinal bourchier, which induced the queen to give up the duke of york. the boy king, who was never crowned, and his brother were murdered in the tower. it is noteworthy that this unfortunate monarch was born in the sanctuary of westminster when his father was in exile. skelton, the poet, died in this same sanctuary. the privileges of the sanctuary were not always respected. when geoffrey, archbishop of york, took refuge in st. martin's priory, dover, he was dragged from the altar in his pontifical robes by order of the bishop of ely, who was then chancellor of the kingdom. but this arbitrary proceeding was not the least of the causes of the downfall of william of longchamp. when william longbeard, who had been condemned to death, took sanctuary at st. mary-le-bow, hubert de burgh ordered the church tower to be set on fire to compel him to come forth. longbeard abandoned his place of refuge, and was dragged to tyburn, and there hanged. but although de burgh was archbishop of canterbury and justiciary of the kingdom, and the church was his own peculiar, his violation of sanctuary led to the loss of his great secular dignity. later, when he had himself to seek refuge, a great debate arose as to his having been forcibly taken from a sanctuary, and he was restored to its protection, and escaped to wales. whilst the same rights of sanctuary existed in ireland and in wales, they were apparently not made use of to any great extent. in scotland, the churches of wedale, near galashiels, and of lesmahagow, near lanark, were the most famous of the religious sanctuaries. the latter had also a royal charter from david i. these sanctuaries ended with the reformation. the abbey of holyrood and its precincts, which include arthur's seat and the queen's park, gave protection to debtors until, by the abolition of imprisonment for debt, its privileges ceased to have any meaning. one of those who thus sought refuge at holyrood during a part of his career was thomas de quincey. sanctuaries probably served a useful purpose in ages when the law was harsh and indiscriminate in its punishment of offenders. the limited protection afforded by the church sanctuaries at least gave an opportunity for the first heat of revengeful feeling to subside, and the greater sanctuaries protected not merely vulgar offenders, but those whom the stormy tide of politics had placed at the mercy of their enemies. as the law became stronger, and the course of justice more certain, the need for these refuges ended, and those that continued were public nuisances, and mere centres of crime and anarchy, such as scott has described for us in his picture of alsatia. we may be thankful that sanctuaries are now merely objects of antiquarian interest and speculation. trials in superstitious ages. by ernest h. rann. in superstitious ages, when belief in the power of the law to adjust all quarrels, to hold the balance equally between man and man, and to accord to each one his rights, was less prevalent than it is at the present day, disputants naturally resorted to other tribunals for the settlement of their claims. a perfect system of law was impossible; what law existed was arbitrarily administered, often for the benefit of the most powerful litigant, and the claimant with only justice on his side often had the mortification of seeing a verdict given against him. during the development of a system of law-giving, when the accumulated experience of humanity had not sufficed to produce perfection, man in his darkness, his ignorance, and superstition, turned to the supernatural, and devised certain ceremonies by which the judgment of god might be evoked to demonstrate the guilt or innocence of the accused. the antiquity of the ordeal, as it was called, cannot be measured. such a form of trial is found to have existed in the earliest ages, and even now traces of it linger among savage tribes of the earth. in africa especially the ordeal is well known. during his travels among the negro tribes north of the zambesi, dr. livingstone encountered the curious practice of the "mauvi," which consisted of making all the women of a tribe drink an infusion of "goho," for the purpose of ascertaining which of them had bewitched a particular man. the accused women were drawn up in a row before the hut of the king, and the draught administered to them. those who were unable to retain the horrible decoction, and vomited, were considered innocent of the charge: those who were purged were adjudged guilty, and put to death by burning. the calabar bean is also used by the natives of africa in the form of an emulsion as an ordeal for persons accused of witchcraft, proof of innocence consisting of ability to throw off the poison by vomiting. among the barotse tribes the process is conducted by deputy, the testing liquid being poured down the throat of a dog or cat, and the accused person being treated according to the effect produced on the animal. among the dyak tribes lumps of salt are thrown into a bowl of water by the accuser and accused, and judgment is given against the owner whose lump disappears first. another method adopted by the dyaks is for each of the two parties to choose a mollusc, and to squeeze over it a few drops of lime-juice; the owner of the mollusc which moves first under the acid stimulant losing the case. ratzel mentions that among the malay tribes ordeals by fire, ducking, pulling a ring out of boiling water, or licking red-hot iron, are still frequent. where the ordeal fails to produce the desired result, wager of battel, in reality another form of ordeal, is resorted to. among the tagals it is usual to light a consecrated candle, and to consider the person guilty of the crime under consideration to whom the candle flame is blown during the performance of the ceremony. the igorrotes have a more painful method of fixing guilt. the accuser and the accused are placed together; the backs of their heads are scratched with a sharply-pointed bamboo stick, and the man who loses most blood also loses his case. in hawaii ordeals are administered by the priests, the suspected person being compelled to hold his hands over consecrated water, and adjudged guilty if the liquid trembles in the vessel while the priest looks at him. the siamese have a form of ordeal which consists of making the two parties to a suit swallow consecrated purgative pills, the man who retains them for the greater length of time winning the case. even among the comparatively enlightened races of the peninsula of india, ordeals of the most elaborate and curious character are practised at the present time. warren hastings mentions that in his day no fewer than nine forms were in use among the hindoos. the ordeal of the balance was commonly employed, and is still in force in certain districts. the beam is adjusted, and both scales made perfectly even. after the accused has been bathed in sacred water, and the deities worshipped, he is placed in the scale-pan and carefully weighed. when he is taken out the pandits pronounce an incantation, and place round his head a piece of paper setting forth the charge against him. six minutes later he again enters the scale, and the balance is called upon to show his fault or innocence. if he weigh more than before, he is held guilty; if less, innocent; if exactly the same, he must be weighed a third time, when, according to the _mitácsherá_, a difference in his weight will be observable. should the balance break down, the mishap would be considered as proof of the man's guilt. the ordeal of the balance is not altogether unknown in english history, for an incident is recorded in which susannah haynokes, of aylesbury, was accused of bewitching her neighbour's spinning-wheel, and preventing it from working properly. susannah loudly protested her innocence, and demanded an ordeal to prove it. she was taken to the church, and weighed in a semi-nude condition against a copy of the bible, and being able to outweigh the scriptures, was considered to be innocent of the offence charged against her. possibly it never occurred to the owner of the spinning-wheel that lack of oil was the cause of its refusal to go round. among other ordeals in use by the hindoos is that of iron, the accused being required to lick a red-hot bar of the metal. if his tongue be burnt, he is considered guilty, if not, he is reckoned innocent, but it cannot be supposed that among tribes addicted to this practice the injury to the tongue is considered sufficient punishment for the offence with which the suspect is charged. the poison ordeal, employed also, it may be noted, by the hovas of madagascar, is commonly practised. a small quantity of _vishanága_, a poisonous root, is mixed with clarified butter, which the accused must eat from the hand of a brahman. if the poison produce no visible effect, he is absolved; otherwise, condemned. in other cases the hooded snake called _nága_ is placed in a deep earthen pot, from which the accused has to take a ring, seal, or coin without being bitten, when he is considered innocent. in trial by the cósha the accused is made to drink three draughts of water in which images of the sun, of dévì, and other deities have been washed. if, within fourteen days, he is afflicted with any form of sickness, he is considered guilty. for the fire ordeal an excavation is made in the ground, and filled with burning pippal wood. into this a person must walk bare-footed without hurt in order to prove his innocence. hot oil ordeals are also in force, when the accused has to thrust his hand into the liquid without being burned; and chewing a grain of consecrated rice, which, if it comes from the man's mouth dry or stained with blood, is considered proof of his guilt. at other times a silver image of the genius of justice, called _dharma_, is thrown with an image of iron or clay, called _adharma_, into an earthen jar; and the accused is acquitted if he bring out the silver image, but condemned if he draw forth the iron. the history of the middle ages furnishes numerous examples of ordeals employed in the settlement of disputes, which in the absence of a strong and impartial system of law-giving, found great favour with the people of all ranks. they were peculiarly distinguished by the appellation of _judicium dei_, or judgments of god, and sometimes called _vulgaris purgatio_. the law of the church sanctioned the ordeal throughout europe for a considerable period, and faculties were freely given by the clergy for the performance of these strange ceremonials. indeed, the whole business, as a judgment of god, was frequently conducted by the servants of the church, always in consecrated ground, and the sacred edifice itself was occasionally requisitioned in order to add greater solemnity to the proceedings. the ordeal of fire, practised, curiously enough, by the greeks in the time of sophocles, was allowed only to persons of high rank. the accused was required to carry a piece of red-hot iron for some distance in his hand, or to walk nine feet, bare-footed and blind-fold, over red-hot ploughshares. the hands or feet were then immediately bound up, and inspected three days afterwards. if, on examination, no injury was visible, the accused was considered innocent; if traces of the burning remained, he was reckoned guilty, and received punishment commensurate with his offence, without any discount for the harm he had already suffered. the most notable historic instance of this form of ordeal is that of queen emma, mother of edward the confessor. she was accused of a criminal intrigue with alwyn, bishop of winchester, and condemned to the ordeal of fire, which, on this particular occasion, took the form of nine red-hot ploughshares, laid lengthwise at irregular intervals, over which she was required to walk with bandaged eyes. she passed successfully through the severe trial, and at the conclusion innocently asked when the ordeal was about to begin. the queen's innocence was, to the popular mind, established more substantially than would have been possible in any existing court of law. she was not the only gainer by the restoration of her reputation, for in consideration of the success which had attended her, she settled twenty-one manors on the bishopric and church of winchester. in the eastern empire the fire ordeal was largely used by the emperor theodore lascoris for the discovery of the origin of the sickness with which he was afflicted. his majesty attributed the malady to magic, and all suspected persons were required to handle red-hot iron in order to establish their guilt or innocence, "thus joining," as an ancient scribe exclaims, "to the most dubious crime in the world the most dubious proof of innocence." fire, as we have said, was employed for persons of high rank: those of baser degree, especially bondsmen and rustics, were tried by the ordeal of boiling water. "i will go through fire and water for my friend" was a common expression in the middle ages, and, though having lost its original significance, the saying has persisted to the present time as a declaration of self-sacrifice. the accused person was required to take a stone from a pan of boiling water, to insert the hand and wrist into the liquid, and in case of the triple ordeal, to plunge the arm in up to the elbow. when cold water was employed, and in cases of witchcraft this was generally resorted to, the suspect was flung into a river or pond. if he floated without appearance of swimming, he was pronounced innocent; if he sank, he was condemned as guilty--rather a superfluous proceeding, considering that the man was in all probability already drowned. it would be going too far to assert that in all cases these ordeals were carried out with the strictest impartiality and consideration for the ends of justice. means were not unknown to circumvent the peculiar forms of the trial, and precautions were often taken by the clergy, as might have been done in the case of queen emma, to protect those whom they desired to clear of suspicion. it is a well-known fact that white-hot iron may be licked with impunity, and the mevleheh dervishes are proficient in the trick of holding red-hot iron between their teeth. sometimes cold iron, painted red, was employed, and at others the fire reduced in temperature at the critical moment, the suspect receiving only such injury as would heal in the three days allowed before his hand was examined. artificial preparations were frequently employed, while the suspect had at times the option of going alone into the church, and in all cases of keeping the crowd of spectators at a distance, which made minute inspection of the proceedings impossible. another form of ordeal was the _judicium crucis_, or trial of the cross, employed largely in criminal cases. when an accused person had declared his innocence on oath, and appealed to the judgment of the cross, two sticks were prepared precisely like one another. the figure of the cross was cut upon one of these sticks, and the other left blank. each of them was wrapped in fine white wool, and laid upon the altar or the relics of the saints, after which a prayer was uttered that god might discover by unmistakable signs whether the prisoner was innocent or guilty. the priest then approached the altar, took up one of the sticks, and uncovered it. if it happened to be the stick marked with the cross, the prisoner was pronounced innocent; if it were the other, he was condemned as guilty. a different form of this ordeal was adopted when the judgment of the cross was invoked in civil cases. the judges and all parties to the suit assembled in the church. representatives, generally the youngest and strongest priests, were then chosen, and required to stand one on each side of a crucifix. at a given signal they stretched out their arms at full length, so as to form a cross with their body, and in this painful posture they continued to stand during divine service. the party whose representative dropped his arms first, or shifted his position, lost his cause. history records a dispute over a monastery, between the bishop of paris and the abbot of st. denis, which was settled in this manner. a crowd assembled, and arranged bets on the result, but those who supported the bishop's man were sadly disappointed, for he dropped his arms at an early stage, and lost the cause of his employer. the ordeal of the cross was abolished by louis de debonnaire in 816, on the ground that it was irreverent in character. ecclesiasticism also played a prominent part in the ordeal of the corsnedd, to which persons accused of robbery had to submit. the corsnedd was a piece of bread made of unleavened barley, to which cheese made of ewe's milk in the month of may was added. over the whole, one ounce in weight, a form of exorcism was uttered, desiring of the almighty that the corsnedd might cause convulsions and paleness, and find no passage, if the man were really guilty, but might turn to health and nourishment if he were innocent. the practice is strongly remindful of the trial of jealousy in use among the israelites, by which an unfaithful woman was compelled to drink holy water containing dust of the floor of the tabernacle, the belief being that she would be stricken with illness if she were guilty. the corsnedd was given to the suspected person, who at the same time read the sacrament. godwin, earl of kent, was, in the reign of edward the confessor, accused of murder, and forced to the ordeal of the corsnedd, when, according to ancient chroniclers, the consecrated food stuck in his throat, and caused his death. both the expressions, "i will take the sacrament upon it," and "may this morsel be my last," are supposed to have been derived from this curious form of law-giving. a somewhat similar custom is in vogue in russia at the present day. balls of bread are made and dropped into consecrated water, the priest meanwhile reciting the formula:--"ivan ivanoff, if you are guilty, as this ball falls to the bottom, so your soul will fall into hell." as a rule the culprit confesses immediately. in ceylon, also, a similar form of ordeal is by no means unusual. a man suspected of theft is required to bring the person he holds in greatest affection before the judge, and placing a heavy stone on the head of his substitute, say, "may this stone crush thee to death if i am guilty of the offence." the tartar sets a wild bear and a hatchet before the tribunal, saying as he does so, "may the bear devour me, and the hatchet chop off my head, if i am guilty of the crime laid to my charge." another form of ordeal which was cherished and practised with assiduity was that of the bier, founded on the belief that the body of a murdered man would show signs, by bleeding or movement, when his assassin approached. the accused had to place his hand on the naked breast of the corpse, and declare his innocence, though the slightest change in the body was considered proof of his guiltiness. this method of finding out murderers had its origin, it is believed, in denmark, where it was in the first instance adopted by king christian ii. for the discovery of the murderer of one of his courtly followers. the belief has survived to a certain extent to the present day, for even english peasants still expect all persons present at a funeral to touch the body in proof of their bearing no ill-will towards the dead man. not so frequently employed, but still occasionally met with in ancient history, was the ordeal of compurgation, where the innocence of the accused was sworn to by his friends, and judgment went against the party whose kindred refused to come forward, or who failed to provide the necessary number of compurgators. it was a conflict of numerical strength, and the higher number carried the day. another custom, still surviving, was to tie a key in a bible opened at psalm l, verse 18, "when thou sawest a thief, then thou consentedst with him," and balance the whole, the belief being that the book would turn in the hands of a guilty person. challenging the accuser to mortal combat was a proceeding which found much favour with the warlike spirit of the middle ages. of course it was considered that providence would defend the right, even if a miracle were needful, but nevertheless each party placed considerable reliance on his own strength of arm and fighting skill. these judicial combats were in ancient times practised among the jews, and were also common in germany in remote ages, though they do not find mention in anglo-saxon laws, and were apparently not in use in england until after the norman conquest. in germany a bier was placed in the midst of the lists, accuser and accused stood respectively at the head and foot, and remained for some minutes in profound silence before they commenced fighting. civil, criminal, and military cases were, in the absence of sufficient direct evidence, decided by means of the judicial combat or wager of battel. the offended party had the right to challenge his accuser to settle the dispute by force of arms, and the forms and ceremonies connected with the trial are well illustrated in the opening scenes of "king richard ii." the combat took place in the presence of the court itself, heaven being expected to give the victory to the innocent or injured party. it was commonly resorted to in charges of treason, as in the above-mentioned dispute between henry bolingbroke and thomas mowbray, when the ceremonies were of an imposing character. as in the majority of ordeals, deputies could be chosen to perform the requisite duties, but the principals were in all cases answerable for the consequences. no commoner was allowed to challenge a peer of the realm, nor could the citizens of london, for some obscure reason, indulge in these popular forms of legal administration. each of the combatants professed his willingness to make good his claims, body for body- "for what i speak my body shall make good upon this earth, or my divine soul answer it in heaven." neither sorcery nor witchcraft had to be employed, and the battel was to continue until the shades of evening had fallen, and the stars appeared. if the accused were killed, his blood was attainted, but if he were only vanquished, he was immediately condemned to an ignominious death by hanging, providing he accepted his fate without demur. the defeated party, however, might crave his life, in which case he was allowed to live as a recreant, on condition that he retracted unreservedly the false statements that he had sworn. at the durham assizes, on august 6, 1638, a wager of battel was offered and accepted, for deciding the rights to land at thickley, between ralph claxton, demandant, and richard lilburne, tenant. according to an old chronicle, "the defendant appeared at 10 o'clock in the forenoon, by his attorney, and brought in his champion, george cheney, in full array, with his stave and sandbag, who threw down his gauntlet on the floor of the court, with five small pieces of coin in it. the tenant then introduced his champion, william peverell, armed in the same manner, who also threw down his gage." but the champions, instead of being allowed to fight, were ordered to appear at the court of pleas in the following month. legal arguments followed, and the trial by battel was eventually postponed indefinitely. in criminal trials no deputies were allowed, and the parties were compelled to settle their quarrel in person, unless one of them was a woman, an infant, or a man over the age of sixty, or was afflicted with lameness or blindness. in the case of any of these disqualifications, trial by jury could be claimed and insisted upon. one of the most remarkable wagers of battel occurred in 1817. a young woman named mary ashford, living at erdington, near birmingham, was supposed to have been murdered early one morning when returning from a dance. suspicion fell on abraham thornton, a partner of the previous night, who was tried for the crime and acquitted. evidence for another trial was collected, and thornton was _appealed_ by william ashford, the direct heir male of the murdered woman. but when the proceedings commenced, thornton's counsel took refuge under a very old act, by which no man could be tried on a second charge of murder, on which he had been acquitted, except by wager of battel before the king, between the heir-at-law of the person murdered and the accused. the appellant, mary ashford's brother, declined the combat on the ground of physical inferiority, and thornton was discharged. immediately afterwards the antiquated law was removed from the statute book. this marked the end of trials by ordeal as recognised by law. the process of extermination had long been in progress, but popular opinion was against reform, and certain of these curious customs survived. although the clergy had at first taken part in these ceremonials, and presided over them in church, they came in time to discountenance them. the canon law declared against ordeals as being the work of the devil, and a decree to this effect was issued in the eighteenth canon of the fourth lateran council in november, 1215. upon this authority it was thought proper, says blackstone (as had been done in denmark a century ago), "to disuse and abolish these trials entirely in our courts of justice by an act of parliament, henry iii., according to sir edward coke, or rather by an order of the king in council." the actual date of the abolition of ordeals by fire and water was 1261. on the continent these forms of trial had been abolished by civil and ecclesiastical law much earlier, although in 1498 an attempt was made to test the doctrine of savonarola by means of a challenge from one of his disciples to a franciscan friar to walk through a pile of burning wood. old customs die hard, and the incident is a curious and interesting instance of the persistence of a popular form of trial even among the members of a party by which it had been condemned. on symbols. by george neilson. the wayward fancies of mankind are well illustrated in the diversity of symbolic observances, some never losing their meaning, some absolutely unintelligible in their historic form, and some as much characterised by a befitting dignity, as others are by the want of it. all once were self-explanatory and possessed a measure of propriety proportioned to the state of the people amidst whom they originated. but tradition is long, centuries elapse, each modifying a ceremony, and when the procedure emerges within the knowledge of record, it has often so lost touch with its surroundings, that it is hopeless to speculate how it arose. symbols are drawn from and applied to every field of human activity. of course in a general sense man expresses himself only so, and a regular alphabet is but a comparatively trifling advance on the language of signs. what we call civilization, is at bottom little more than a clear recognition of certain symbols of government. the queen's crown, the judge's ermine, the mayor's mace, what are they else? the sceptre is only a glorified stick, of which the policeman's baton is a humbler shape. each embodies the great thought that behind it stands a nation's determination to be ruled by law. in the history of law, symbol and the traces of symbol meet us at every turn. the middle ages teemed with them. roman law had bequeathed not a few. perhaps the most wondrous of them all is one that has long ceased to have any legal connection, although its mark is all-powerful over civilisation. how daring was the imagination which prompted the choice, for the heraldic badge of christianity, of the dread emblem of capital punishment by crucifixion! in the pure domain of the law of the early and middle ages, a perfect wilderness of symbols presents itself to eyes which strive to explore the origins of institutions. law is ever beset by a tendency towards formalism, and in early times a severe insistence upon ceremony, no doubt, gave prominence and prescriptive sanction to symbolic acts. law and custom after all only mean that the way things were done yesterday is the safest way of doing them to-day. the acceptance of a common form implies a very large public consent, which is equally necessary to its abrogation, once it is accepted. no small part of its value lies in its certainty, "certainty which," coke well says, "is the mother of quiet and repose." hence the fixity and longevity of many emblematic methods of performing acts affecting status or property rights. the constitution or discharge of slavery, or the transfer of a slave from one master to another, had a variety of set forms. a freeman might deliver himself to serfage by putting a leathern thong upon his neck. when a church was the donee, the ceremony might take place at the altar, and the man present himself there with cords round his throat. "thus he offered himself," says an old record, "to the almighty lord." a coin or two on the head was also a customary part of the process. in the manumission or liberation of the slave, these coins struck off the head served the purpose of declaring him free, as did the companion symbol of open doors, or the placing him at four cross roads, and bidding him go whither he would. another common symbol of enfranchisement was the delivery of an arrow, thought to denote the right confined to freemen of bearing arms. even a short account of legal symbols would make a very large treatise. single instances such as the ring, the staff, the glove, and the horn would each furnish material for an elaborate monograph. the theme would call for a discussion of the great war of investitures, and would touch very many points of ecclesiastical, civil, and criminal law and history. the scope of the present unambitious article is only directed to a few illustrations in relation to the transfer of land, the act of divesting the old proprietor and clothing the new with his rights. although such symbols usually had a connexion with the subject conveyed, there are many types in which that connexion is not readily traceable. why for example amongst the saxons should a resignation of all interest in an estate have been made by a gesture with curved fingers? one can understand why a sod should be so often a token, but why does the glove play so large a part in merovingian and carolingian conveyancing? was it, indeed, as german scholars speculate, because the donor metaphorically took it off and the donee put it on, making his the covered hand, the _vestita manus_, that would defend the land conveyed? how came an eleventh century magnate to attest his renunciation of justiciary rights to a monastery "by cutting off the top of the silk band by which his fur robes were fastened to his breast, and with that segment re-investing three monks therein?" in this case a portion of that silken band was carefully sewn up, as an adminicle of evidence, in the writ recording the transaction. how again came it that a claim of feudal service might be departed from by the delivery and placing of a wand (_virgula_) upon the altar? all these are much more personal symbols than real. they are mainly guarantees of the grantor's good faith. they do not seem to be primarily emblems of possession. the contrast between these two classes will be best appreciated by considering types of the latter. when a purchaser proceeded to set up fresh boundary marks, or to take a spade and dig, or when he received delivery of a sod with grass or shrubbery upon it, or lifted from the ground the charter granted by the seller with amongst other things a sod laid thereon, the act of seisin, the formal occupation is visibly completed. of this class of symbol, the sod (_cespes_) is probably the best and most typical for a few words of illustration. we read of litigants laying judicial claim to land in the mall or public court by putting their spears into a sod, representative of the subject in dispute. we hear of the sods being cut in the shape of bricks, and of their being preserved as memorials, with the twigs growing in and incorporated with them. we hear of sods offered on the altar when the grant of land was being made to a church. we hear of transfer from one vassal to another being accomplished by the grantor delivering the sod to the over-lord, and the latter passing it on to the grantee. of all the symbols employed in connection with feoffments, however, the rod (_festuca_) had the widest vogue on the continent. not that it was restricted to transactions in land; it was a more or less lineal descendant of the roman stipulation, a contract visibly expressed by the parties breaking a straw between them. under charlemagne a renunciation by certain priests was made by them "holding straws in their hands and casting them from them before god and his angels." later this appears as a recognised method of renunciation, but with a rod substituted for the straw. in some cases the fact of renunciation is emphasised by the rod being not only thrown to the ground by the resigner, but trodden under foot when there. the rôle of the _festuca_ was peculiarly important amongst the frankish peoples.[3] galbert of bruges, a flemish twelfth century historian, states that the counts of flanders gave investitures to their vassals, after receiving their fealty and homage, by a wand (_virgula_) held in hand, and he has a dramatic passage describing how the people of bruges, in token of their renunciation of their feudal bond to hacket the castellan, "picking up bits of stick exfestucated their homage and fealty," _i.e._ cast the rods from them, and so doing severed all connexion with their former chief. in england and in scotland, this rod symbol (_fustis et baculus_) also played a large part. bracton referred it specially to land without houses. tenure by the verge, a species of copyhold, had its name, we learn from littleton, from _un petite verge_, delivered by the old tenant to the steward or bailiff of the manor, who re-delivered it to the new holder. jordan fantosme tells us that when brien, messenger of ranulf glanvil, in 1174, announced in westminster the capture of the scottish king at alnwick, henry ii. rewarded him for his good news by handing him a stick (_bastuncel_), which vested him in ten librates of land. in scotland the feudal resignation by a vassal to his overlord for the re-investure of a fresh owner was effected by "staff and baton" (_fustis et baculus_), and references to those symbols occurred in every day conveyancing until far into the present century. indeed this picturesque ritual was, strictly speaking, not abrogated, although made unnecessary, by the act 8 and 9 victoria ch. 35. the commonest conveyancing symbol for land in england was the formal delivery of turf or twig of the ground conveyed, made by a representative of the grantor, to a representative of the grantee. the most familiar in scotland was the handing over of "earth and stone." this latter was the normal form of seisin, and its history goes far back, not only in scotland, but on the continent as well. a curious saxon legend attests this. widukind narrates that some saxons, having landed from their ships in thuringia, one of them, wearing a golden torque and bracelets, met a thuringian, who asked if he would sell his ornaments. the sly saxon entered into an odd transaction; the thuringian gave him in exchange for his gold, a lapful of soil. the thuringians rejoiced exceedingly over the smart bargain their countryman had made, but changed their tune when soon afterwards the saxons claimed the land as theirs, purchased with their own gold, and by force of arms made good the demand. our chronicles have a good many stories about symbols. in the norman _brevis relatio_, a sketch of the origin of william the conqueror, is told of his grandfather, duke richard the good, that once when staying at a monastery, after prayer in the morning he laid a spindle on the altar. upon being asked what it meant, he named the manor which he had by so homely a symbol bestowed for the good of his soul. when the infant william came into the world, it was said,--and afterwards noted as prophetic--that when they laid him down upon some straw, the little hands each clutched a handful. acquisitive tendencies were foreshadowed! the _roman de rou_ tells that in 1066, when william landed in england, he stumbled and fell, an omen which for the moment disconcerted his followers, but rising with a shout, he swore by the splendour of god that with his two hands he had taken possession of the land. prompt to catch the occasion, one of his men ran forward to a cottage, tore a handful of thatch from the roof, and passed it to his chief, with the cry, "receive this seisin,"--quasi-ceremonial words which with william's pious, "god be with me," the curious may compare with the formalities of english livery in deed, as described (sec. 59), in coke upon littleton. the normal symbol of seisin for a house in england, was (before the act 7 and 8 victoria ch., 76, superseded these archaic ceremonies), was the ring or hasp of the door, known in scotland for houses in burghs as "hasp and staple." in the latter country also, there were a good many special types of symbol characteristically appropriate to seisin in special kinds of property. thus for mills "clap and hopper," for fishings "net and coble," for teinds (anglice tithes) a sheaf of corn, for the patronage or advowson of a church a psalm-book and keys, attained the figurative purpose requisite. there were many others less familiar amongst them, one, a hat, worthy of a few words all to itself. our own generation may not regard this as a particularly dignified symbol, but there is a cloud of witnesses to shew its very various applicability. the priest's cap or biretta was sometimes employed to instal him in a chaplainry or benefice. and apart from the place of the hat in the regulations of the tilting ring, it was occasionally used in scotland as a symbol in connection with what were known as heirship goods. but it had in the twelfth century been accorded the very loftiest use to which secular symbolism could be turned. in 1175, king william the lion, taken prisoner the year before, relinquished the independence of scotland, and did homage to the english king at york, as a condition of his liberation. the contemporary records are silent regarding symbolic details, but in 1301 edward i. stated in his letter to the pope that "in token of his fealty, william the king of scotland, had, on the altar of st. peter's, at york, offered his cap (_chappelus_), lance, and saddle, which until this day remain and are preserved in said church." any incredulity which a fair-minded scot can entertain, regarding this allegation that the freedom of his country was once symbolically surrendered in king william's cap, will be materially lessened, and scottish patriotism so far consoled, by the recollection that under very similar circumstances the realm of england was in 1193 given away with the bonnet (_pilleus_) of the captive richard i., who, thus (as hoveden tells us), gave investiture of his kingdom to his arch-enemy, the emperor henry vi. this was, however, only formal: the emperor at once re-invested king richard in his realm with a double crown of gold, though subject to an annual tribute of £15,000--a business transaction painfully illustrative of the christian chivalry of the crusades. the annals of scotland boast one instance of a royal symbol much more regal than either of these two. about the beginning of the year 1124, king alexander i., restoring by charter to the bishopric of st. andrews an extensive tract of land, completed the grant according to andrew of wyntoun (vii., 5), in a truly stately fashion. he- gert than to the awtare bryng hys cumly sted off araby sadelyd and brydelyd costlykly coveryd with a fayre mantlete off precyous and fyne welvet wyth his armwris off turky that pryncys than oysid generaly and chesyd mast for thare delyte wyth scheld and spere off sylvyr qwhyt. it was a special occasion, for bishop robert's appointment, which had led to the grant, was a scottish victory over the pretensions of the see of york. there is an appeal to the imagination so strong in the scene, that, in spite of the interval of 300 years betwixt the event and this oldest record of it, one is slow to offer any criticism on the charger; more especially as the entire verity of the silver spear is corroborated by walter bower's enshrining in his scotichronicon the fact that in the fifteenth century it was doing duty as the shaft of the cross in the cathedral. yet the unexampled symbol, coupled with the analogy from york in 1175, compels the suggestion, that perhaps during these 300 years an original _capellus_ have been mis-read as _caballus_, or mistaken for scottish _capul_, and thus by the magic of mistranslation, a king's cap _may_ have been transmuted into an arab steed. whilst of course a crown was the standard symbol of investiture for a kingdom, inferior rights of principality were often typified by other things, such as a sword, a spear, or a banner. and as feudal forms were observed in the bestowal, so were they sometimes in the taking away. england dispensed with several of her monarchs, but apparently in no case was a deposition attended by the feudal solemnities. in scotland when, in 1296, king john balliol was pulled out of the throne by the same hands as had placed him in it, edward i. spared his vassal little of the indignity of the situation. balliol, deprived of his royal ornaments, with the ermine stripped from his tabard, resigned his realm by the symbol of a white wand. than this jhon tuk a quhyt wand and gave wp in till edwardis hand off this kynryk all the rycht. no scottish historian has noticed the absolute legal propriety of this, and it is worth noticing. by contemporary law (_britton_, ii., 22), _une blaunche verge_ was the recognised symbol of disseisin by consent. the thirteenth century was very particular, even in small things, about its law. _disseisin_, provided for by statute of 1429, in disputed successions to real property, and known to scotland as the breaking of seisin, was symbolically affected--_frangendo discum_--by the curiously expressive act of breaking a dish or dishes, with fire underneath. law under the feudal system. by cuming walters. to the historian proper feudalism presents a wide subject with diverse points of interest, but its legal aspect is comparatively a small matter, and it can be considered without detailed reference to the whole vast scheme which existed from early german and gothic times, and overspread the greater part of europe. it is a common error to suppose that it was introduced into england by the normans. william the conqueror only superimposed a french form of feudalism upon that which already existed; and all historians agree that the measures he adopted, the restrictions he made, and the original conditions he established, were evidence of his farseeing genius, and a masterpiece of statecraft. his was a feudalism which, while giving the lords great personal power and influence, retained them still as the servants of the king, and totally prevented them from using their strength against the throne. in this respect the feudal system in england never resembled that of germany and france, or even that which the norman barons established in scotland. the conqueror had no intention of allowing the owners of territory to supersede his own authority, and to be beyond the sovereign's control. while, therefore, he allowed them all liberty in dealing with their dependents, he made it impossible for them to defy his own authority, first by distributing their possessions so that they could not have a great army of followers at command, and, secondly, by insisting upon a formal declaration of allegiance from both the barons and their vassals. the former, therefore, were not beyond the law, and the latter had nominally, if not actually, some right of appeal to the monarch. these points it is necessary to bear in mind for a full understanding of legal procedure during the long period feudalism prevailed. the feudal lord's claims upon his vassals were numerous. first came his claim to their military service. he could demand from them service as assessors in his courts of various fines and payments and confiscations of land. he could dispose of females in marriage; not infrequently he consigned them to a debased existence. when the tenant was invested with possession of his feud or fief, he paid homage to his lord, that is, he proclaimed himself the "man" to help and to serve his master. kneeling humbly before the baron, he took oath of fealty, and practically enslaved himself. it was here that king william showed his wisdom by ordaining that the oath of allegiance should be not only to the feudal superior, but to the monarch as the head of all, and thus he secured the ultimate service of all vassals to the crown, and deprived the barons of autocratic power. the saxon feudalism had been of the most tyrannical character, the owners of slaves making their own laws, and carrying them out with the utmost barbarism. records exist which prove that for slight offences mistresses were accustomed to order their servants to be scourged to death, or subjected to fearful tortures. for breaking a dish, or spilling wine from a cup, for example, a servant might have his ears cut off, his nose slit, or suffer the loss of his hand, according to the caprice or fancy of his lord or lady. while murderers and robbers could find sanctuary in the church, servants had no such refuge. they were torn away from the altar to which they clung in their terror, and none could or would intervene to protect them. according to the decree of king ethelred, public punishments were to be mild, and death sentences were seldom to be passed; but the sovereign's wishes had no effect upon the treatment of bondmen. high-born women were as cruel as their husbands, and king ethelred's own mother is said to have beaten him so severely when he was a child that he regarded whipping instruments with horror to the end of his life. flagellation was not recognised as a legal punishment by the saxons, though a husband might beat his wife and incur no penalty, while the whipping of slaves was accounted no more than the whipping of animals, and perhaps less. for all other classes money-fines were almost the only authorised penalty, a fixed price being set upon persons of different degrees. but the slave had no real value, and hence could be mutilated or killed at the pleasure of his lord. the ideal of feudalism, never realised in england, was that the king and his tenants-in-chief should hold law-courts, which the tenant or the sub-tenants should be bound to attend to have their cases tried according to statute rules. but the system was only imperfectly carried out, and the fact that the tenant-in-chief, or feudal lord, had the right to levy taxes (called "tallage" or "tailles") on his vassels, speedily led to all sorts of tyranny and abuse. still, the feudal courts could not engross the legislation for the excellent reason that the quick-witted conqueror had preserved the witanagenot and the courts of the shire and the hundred to check the barons. the latter made a big effort to introduce the continental system of feudalism, by which each of them would have been supreme in his domain; but the plans were defeated as we have seen. william's successors were men of a different stamp, and the system proved unworkable in the hands of weaker men. "the prince," says hume, "finding that greater opposition was often made to him when he enforced the laws than when he violated them, was apt to render his own will and pleasure the sole rule of government, and on every emergency to consider the power of the persons whom he might offend rather than the rights of those whom he might injure." the mischievous course pleased none, and the royal prerogative was at last systematically assailed by the barons in the time of john, and the magna charta wrestled from him. the concessions then made were of benefit to the barons rather than to the landless and dependent classes, and it remained for the third edward to diminish their power and increase the liberties of the populace. law in england during all this period was chiefly a system of oppression, proceeding stage by stage from the highest to the lowest. the revenues of the crown were obtained by extravagant rents, forfeits, taxes, reliefs, fines, aids, and other devices which show the amazing ingenuity of the extortioners. the result was that most tyrannical exactions were made in turn by the feudal lords, and the dependents groaned for six centuries under these lawless yet legalised oppressions. personal property was at the mercy of the lords, who adopted the most cruel means to enforce their "rights." they, in turn, could be the victim of extortions, as was proved in the case of roger of dudley, who was summoned to receive the honour of knighthood in 1233. he found the honour so expensive that he declined to appear, whereupon a writ was issued--"because roger de someri, at the feast of pentecost last past, has not appeared before the king to be girded with the military girdle, the sheriff of worcestershire is hereby commanded to seize on the house of dudley and all other lands of the said roger within his jurisdiction, for the king's use; and to keep them with all the cattle found upon them, so that nothing may be moved off without the king's permission." the same roger had a twelve years' dispute with william de birmingham touching the service due for the manor of birmingham, for which the latter was required to perform the service of eight knights' fees, a half and a fourth part, and also to do suit to the court at dudley once every three weeks. in such wise did these cheftains rule. another curious piece of law relating to the dudley lands is told by leland:--"the lorde powis, grauntfather that is now, being in a controversy for asawte made upon hym goying to london by the lord dudeley, dudeley castelle condesended by entreaty, that his son and heir should mary the olde lorde of dudleis' daughter." a very amiable method of atoning for personal violence. the feudal lord had absolute power over his own family, as well as over his dependents, the laws of household government being entirely of his own devising and prompted by his passion, his ignorance, and his wickedness. robert de belesme, earl of shropshire and of arundel and shrewsbury, one of the most powerful and defiant barons of norman times, tore out the eyes of his own children when they had, in sport, hidden their faces beneath his cloak. he cast his wife in a dungeon, heavily fettered; but every night he sent his servants to drag her to his bed, and in the morning sent her back to her prison. this torture he inflicted upon her to gain money from her family. he disdained to allow his captives in war to be ransomed, but impaled them, men and women, upon stakes. his friends were terrified to approach him, for by way of pleasantry he would engage them in merry chat and suddenly plunge his sword into their sides with a loud laugh. no law could touch this man, and no avenger arose to overcome him. the warden of the welsh and english marches made also his own laws, which were conceived in a spirit of the utmost cruelty. border foragers, for example, were cast into a dungeon, and subjected to the punishment of having their right hands chopped off with the axe. this prescribed penalty was often aggravated by additional torture or death. feudalism was deep-rooted, so deep-rooted that not the enactments of all the normans and plantagenets could do more than check its growth and gradually ameliorate its severities. but while some of the old customs were abolished, the bulk of the laws remained based upon the anglo-saxon customs, so that as one writer has tersely explained, "the land laws and game laws are derived from the normans, the common law from the anglo-saxons, and almost all our statute laws breathe the spirit of pre-norman england." to this macaulay refers with ill-disguised scorn in his history: "our laws and customs have never been lost in general irreparable ruin. with us the proceedings of the middle ages are still valid precedents, and are still cited on the gravest occasions by the most eminent statesmen.... thus in our country the dearest interests of parties have been staked on the results of the researches of antiquaries." the historian, however, does admit that there is compensation for the anomalies which result from this polity. "other societies possess written constitutions more symmetrical. but no other society has yet succeeded in uniting revolution with prescription, progress with stability, the energy of youth with the majesty of immemorial antiquity." that the spirit of olden feudalism should sometimes be found surviving in modern laws is inevitable. villenage is extinguished, and yet in the very character of certain classes, as well as in the operation of certain laws affecting lands and personal privileges, we see a direct connection between the submission of the bondman in the past to his hereditary master and the readiness of the poor in the present to yield to one in higher station. what struck the philosophic emerson most, on his visit to england, was that englishmen should maintain their old customs, repeat the ceremonies of the eleventh century, and consider in so many things that "antiquity of usage is sanction enough." "the middle ages," he said, "still lurk in the streets of london." the stocks and the whipping-post, which stood in front of every castle, were the commonest instruments in use for the punishment of the ceorl and villein who displeased their masters. for the ceorl, who could not quit the land on which he was born, or free himself from slavery, life was particularly hard. he could not absolve himself by money payments, like the rest of his fellow-men, if once he gave offence; while the majority could rob and murder and escape with a fine, the ceorl's slightest defect, real or imagined, was punished with merciless rigour. tithings and the process of compurgation came to the assistance of other criminals, but the ceorl could appeal to none, and expect neither pity nor aid. such facts give point to emerson's dictum that "castles are proud things, but 'tis safest to be outside them." the villein was in a much happier state than the ceorl. he was free against everybody except his lord, and the criminal code accorded him the same privileges as a free man. the lord was even liable to punishment for killing or mutilating his villein, and the _mirror of justice_ in the thirteenth century laid down the fact that "the villein is no serf in any sense of the word; he is a free man; his land is a free tenure." but all this is largely comparative, and our estimate of the advantages enjoyed by the villein must depend upon whether we view it by the standards of the time, or by modern standards. at all events, while the ceorl tasted all the bitterness of his serfdom, the adjudged felon in other stations was able to obtain much leniency. the common form of oath or abjuration in king edward's time was this: "this heare, thou sir coroner, that i am a robber and a murderer, and a fellow of our lord the king of england; and because i have done many such evils in his lande i do abjure the lande of our lord edward, and i shall haste me towards the port of ----, which thou hast given me, and that i shall not goe out of the highway, and if i doe, i will that i be taken as a robber and a felon. and that at such a place i will diligentlie seeke for passage, and i will tarrie there but one ebbe and flood, if i can have passage; and unlesse i can have it in such a place i will goe every day into the sea up to my knees, assaying to pass over; and unlesse i can do this within fortie days i will put myselfe again into the church as a robber and a felon, so god me helpe and his holy judgment." but king richard showed no disposition to put so much trust in the honour of these gentry, and when setting out for palestine, he made a law against peculating sailors, which was calculated to dismay them: "whosoever is convicted of theft shall have his head shaved, melted pitch poured upon it, and the feathers from a pillow shaken over it, that he may be known; and shall be put on shore on the first land which the ship touches." this punishment reminds us of a modern american institution. the law of "englishry" deserves a passing note. it dates back to the time of canute, and was continued by the normans. when canute sent away the greater portion of his danish troops, "the witan pledged themselves that the rest should be safe in life and limb, and that any englishman who killed any of them should suffer punishment. if the murderer could not be discovered, the township or hundred was fined." the proud and tyrannical normans used this law to their own advantage. a mere englishman being a vassal, and of no importance, could be killed with impunity, but it was ordained that when a man was found killed, and evidence was not brought to prove that he was english, he should be held to be a frenchman, so that a penalty could be imposed upon the township. this law of "englishry" is often illustrated in old chronicles. men were found murdered by the roadside, on heaths, and in woods; the chronicles state that "no englishry was proved," and the towns were accordingly amerced. the "frankpledge" was not so feudal in character, though it was based upon the principle that "every landless man shall have a lord who shall answer for his appearance in the courts of law." the custom prevailed before the conquest, ten men forming a "tithing," the members of which were answerable each for others. the present court leet is a survival of the system, though in a very modified form. the feudalism which the norman barons imposed upon scotland, and which was unchecked by king william, so that it reproduced all the evils of the ferocious continental system, was marked by terrible excesses. no institution was more shameful and abhorrent, or so vividly reveals the baseness to which unrestricted feudalism sank, than the horrible depravity of maiden-rights, or _droits de seigneur_. beaumont and fletcher founded upon the historic incidents their drama of "the custom of the country," and though a few mild attempts have been made to throw doubt upon the facts, there is no question that these domestic tyrannies spread rapidly from scotland to france and germany, and took numerous odious forms. isaac disraeli, in his "curiosities," devotes a chapter to the subject, which can scarcely be dealt with in detail in a work appealing to the general reader. the shameful institution was abolished by malcolm iii., who, however, put the matter upon a business basis by ordering that it should be redeemed by a quit-rent. but the lord still considered himself privileged to manifest his authority over his vassals by thrusting his booted leg into the bed of a newly-married couple, or by sousing the bridegroom in a river. the wardships enjoyed by the feudal lords were equally absurd, one of their favourite methods of raising money being to arrange an unsuitable marriage, and on the refusal of the persons to carry out the contract, to claim the revenue of the wards' estate as "forfeit." the feudal lord could sell his vassals as he did his animals, and they were often bartered away with fields and houses. the value of a serf was roughly apprised as four times that of an ox, and he could also be used as "live money." mr. ruskin, in his third letter in "fors clavigera," gives an account of the laws promulgated by king richard, coeur de lion, whom he declared to be the truest representative of the british "squire," under all the significances of that name. the ideal lord was an admixture of the patriarch and the tyrant, and if we examine richard's legislation, and endeavour to recognise the objects he had in view, we see that with a considerable amount of selfishness he also possessed a real wish to add to the welfare of his people. he simplified and adjusted the weights and measures of the country to put an end to cheating, and he took severe measures "to prevent the extortions of the jews." if the people would be honest, he was quite willing to do the fighting for them; if they made good cloth, he was ready to see that they got good pay; and when they bought and sold, he was determined that each should give the other good measure. but with much power comes caprice, and the feudal lords too soon forgot the interests of their dependents in serving their own ends. the english barons never made the formal claim of the german barons to rob on the highways in their own territories, though, without asserting the right, they frequently performed the act. a case in point is that of william de birmingham, who so late as the sixteenth century went out with a hundred men to molest and rob travellers on foot. the ordinary laws were unequal to calling them to account for these misdeeds; nothing but conquest by battle could have checked them. besides, there were lord palatines whose rule in their own domains was equal to that of the sovereigns, and they could make or abrogate laws at will. these kings _in petto_ appointed their own judges and courts, could reverse sentences, pardon at will for any crime, and indict at pleasure. offences committed in the county palatine were said to be "against the peace" of the lord, and not against the peace of the king, and it was with a rod of iron that these despots governed the territory allotted to them. still there was a show of legality in this. it differed from the wanton caprice of geoffrey of coventry, who oppressed the inhabitants, was amenable to no law for so doing, but consented to remit the burdensome taxes if his wife would ride naked through the streets. as a specimen of the barbarous humour of these lords, the godiva story is instructive. at the end of king stephen's troublous reign, there were eleven hundred and fifteen castles in england, each of them a centre of power, at that particular time almost absolute. the wise provisions of the conqueror had to some extent been overcome, and the feudal lords had become so unmanageable that henry ii. found himself compelled to stipulate for the destruction of a number of the strongholds. at the same time he prevented the erection of others except by royal licence, and so began to limit the oppression which had prevailed. we find, too, that in consequence of the frequent over-riding of the common law by men in authority, the monarch reserved to himself more and more of sovereign power, "by which," says sir robert filmer in his famous "patriarcha"--answered by john locke in the still more famous treatises on civil government--"he did supply the want or correct the rigour of the common law, because the positive law, being grounded upon that which happens for the most part, cannot forsee every particular which time and experience bring forth. already sundry things do fall out," he continues later, "both in war and peace, that require extraordinary help ... so that rare matters do grow up meet to be referred to the absolute authority of the prince." we find such a case in the time of richard ii., when, on a question of freehold, the appeal went direct to the king because "of maintenance, oppression, or other outrages the common law cannot have duly her course." how the lords could avoid and defy the common law is proved by two curious instances in the history of the dudleys, the family previously referred to. lord edward dudley, in 1592, had a dispute with the neighbouring lyttelton family, and raising some 150 persons, he went one night and stole all the cattle on the latter's estate. lyttelton obtained judgment against dudley, who was ordered to return the cattle, but he posted his servants at the gates, and bade them cut the bailiffs to pieces. lyttelton then armed sixty men and took the cattle back by force; dudley armed 700 men to fetch them back and kill them. for this offence the nobleman and eighty followers were indicted, but by one means and another the proceedings were made to last four years, and then an agreement was entered into by the parties. lord edward's son, ferdinando, was the hero of the next exploit. he purchased the property of an oppressed widow, named martha grovenor, for £1200, but only paid £100. she sued him in the exchequer for the remainder, and obtained judgment for the balance. no notice was taken of this. the following year the widow obtained a second decree, and this again was ignored. his lordship was next called upon for costs, and this led him to make an effort to compromise the matter. he entered into an agreement to pay all arrears and costs, but, having done so much, refused to fulfil his obligations. an execution of ejectment was then levied against his lordship. this he avoided for nine years, and it was only twelve years after negotiations had begun that the widow was able to obtain her dues. a very brief glance at continental feudalism and its influence upon statute law may now be given. it enables us to mark some of the differences between the english and the foreign systems, the one with its restrictions and the other all-powerful. in the eleventh century, all france and the german empire were one vast feudal possession. the powers of the lords have been classed by the historian hallam as follows--first, the right of coining money; second, that of waging private war; third, exemption from all public tributes except the feudal aids; fourth, freedom from legislative control; and fifth, the exclusive exercise of original judicature in their dominions. it is easy to perceive how, with these initial powers conceded, the seigneurs were enabled to make themselves the veritable masters of the kingdom. in germany the lawlessness of the barons became as proverbial as did their cruelty towards their slaves. the whole country was divided up into territories over which the feudal chiefs reigned as absolute and despotic kings. nor is the spirit of feudalism in that country yet extinct, for, unlike france, it has not had its bloody revolt against "aristocrats." no one can have travelled in germany and seen the castle towering high on crag or rock, and the diminutive houses scattered about its base, without realising at a glance how the chieftains and their serfs lived in the old days. in germany the feudal system was seen at its strongest and its worst, and law was paralysed while the men of lust and blood were supreme in their own dominions. austria has a similar story to tell of barbarity towards serfs, and the abrogation of law by powerful chieftains. but it is remarkable that in russia, where the feudal spirit still most strongly survives, and is marked by many excesses utterly repugnant to the feeling and customs of the times, the earliest attempts to establish a feudal system were quelled by the princes. in this land, where a mistress might, until recently, have her maid whipped to death for dropping a teacup, or for any other trivial offence, real or imagined, where again it was taken for granted that "a count carbonadoes his ignorant serfs with the knout," feudalism, once instituted, deepened its hold with the progress of years. while there was no law for the lower classes, save that dictated by the caprice of their masters, there were special exemptions and priveleges for the noble and wealthy. the russian lords pay no taxes, and they retain, in almost undiminished force, that power to abuse, insult, and destroy the peasantry which was possessed by the _ancienne noblesse_ of france before the revolution. mr. morley roberts, in one of his russian historical sketches, relates that not long ago a noble threw a hebrew into a dungeon for an offence, and a week later asked his jäger what had become of him. "oh," said the fellow with a laugh, "he made so much noise that i shot him." the state of bohemia from the ninth to the fourteenth century shows to what deplorable depths a race may sink under an unrestrained and licentious feudalism. the bohemian nobles practically abolished the marriage laws, and in addition to oppressing their dependents, frequently sold them into slavery. when st. adalbert endeavoured to effect a reformation, he found every impediment put in his way, and his wishes openly defied. he had a horror of bloodshed, and preached the hatefulness of murder. by way of response, a man, whose wife had been put in a nunnery to save her from his brutality, was dragged out and butchered in the streets. adalbert had to wait long before he could influence these men who, secure in their castles, could indulge their rapacity without fear of punishment. reforms, effected in the tenth century, however, were not permanent, and in the twelfth century the nobles had succeeded in converting the local assembly, with its power of appointing judges, to their own uses. mr. edmund maurice, in his history of bohemia, relates that the nobles began to secure the judgeships for themselves, and then sold or bequeathed the offices to heirs. they thus made the appointments a means of tyranny and a source of profit, and with the money acquired purchased the lands of freemen. others, owing to the unpopularity of the local tribunals, strengthened the power of their own feudal courts, and again reduced their dependents to abject slavery. "the coolness," says mr. maurice, "with which many of the grants of land transferred workmen of various kinds as mere appendages of fields and fishponds, is in itself a proof of the degraded position to which the peasant class had been reduced; and the fact that military service seemed one of the few means of escaping from serfdom, led the peasants to favour those wars which in the end increased their misery." eventually king wenceslas, famed in ballad, and still more famed in bohemian history, came to the rescue, and ordained "that no baron or noble of the land shall have power in the city of brünn, or shall do any violence in it, or shall detain anyone, without the license and proclamation of the judge of the city." the wide survey we have taken enables a fair estimate to be made of the state of the law in europe when the castle was the court of justice, and the baron was the judge. england alone of all europeon countries seems to have been able to place a check upon the more flagrant abuses, and in later times of reform to have succeeded, while abolishing what was essentially evil in the system, in retaining whatever of it was of worth. whether there be still laws too deeply impressed with feudal ideas for modern acceptance is a question for legislators to consider. the manor and manor law. by england howlett. everything relating to the manor reminds us forcibly of the baron of olden days, with his little territory, in which he was practically a king. estates in copyhold are essentially distinct both in their origin and in their nature from those of freehold estates. copyhold lands are holden by _copy_ of court roll, that is to say, the muniments of the title to such lands are _copies_ of the roll or book in which an account is kept of the proceedings in the _court_ of the manor to which the lands belong. for it must be remembered that all copyhold lands belong to and are parcel of some manor. an estate in copyhold is not a freehold; but, according to construction of law, merely an estate _at the will of the lord_ of the manor, at whose will copyhold estates are expressed to be holden. copyholds are also said to be holden _according to the custom_ of the manor to which they belong, for custom is of course the life and being of copyholds. we must remember that in former days, a baron, or great lord, becoming possessed of a large tract of land, granted part of it to freemen for estates in fee simple. part of the land he reserved to himself, and this formed the demesnes of the manor, properly so called: other parts of the land he granted out to his villeins, or slaves, permitting them, as an act of pure grace and favour, to enjoy such lands at his pleasure; but sometimes enjoining, in return for such favour, the performance of certain agricultural services, such, for instance, as ploughing the demesne, carting the manure, and other such servile work. the lands remaining after this parcelling out, generally the poorest, formed the waste lands of the manor, over which rights of commons were enjoyed by the tenants. in this way arose a manor, of which it will be seen the tenants formed two classes, the freeholders and the villeins. now for each of these classes a separate court was held--for the freeholders a court baron; for the villeins another called a customary court. in the former court the suitors were the judges; in the latter the lord only, or his steward. in some manors the villeins were allowed to have life interests, but these grants were not extended so as to admit any of their children. hence arose copyholds for life. again, in other manors a much greater degree of liberality was shown by the lords; and on the death of a tenant, the lord permitted his eldest son, or indeed sometimes all his sons, or sometimes the youngest only, and afterwards other relations to succeed him by way of heirship; for which privilege, however, the payment of a fine was usually required on the admittance of the heir to the tenancy. frequently it happened that the course of descent of estates of freehold was chosen as the model for such inheritances; but in many cases dispositions of the most capricious kind were adopted by the lord of the manor, and in course of time actually became the custom of the manor. and thus it was that copyholds of inheritance arose. again, if a villein tenant wished to part with his own parcel of land to some other of his fellows, the lord would allow him to _surrender_ or yield up again the land, and then, on the payment of a fine, would indulgently _admit_ as his tenant, on the same terms, the other, to whose use and in whose favour the surrender had been made. thus arose the method now prevalent at the present day, of conveying copyholds by _surrender_ into the hands of the lord of the manor to the use of the purchaser, and the subsequent admittance of the latter. by long custom and continued indulgence that which at first was a pure favour gradually grew up into a right, and thus it came to pass that the will of the lord, which had of course originated the custom, came at last to be controlled by it.[4] the rise of the copyholder from a state of uncertainty to certainty of tenure appears to have been very gradual. britton, who wrote in the reign of edward i., thus describes this tenure under the name of villeinage. "villeinage is to hold part of the demesnes of any lord entrusted to hold at his will by villein services to improve for the advantage of the lord." and he further adds that "in manors of ancient demesne there were pure villeins of blood and of tenure, who might be ousted of their tenements at the will of their lord." in the reign of edward iii. a case occured in which the entry of a lord on his copyholder was adjudged lawful, _because he did not do his services_, by which he broke the custom of the manor, which seems to show that even at that time the lord could not have ejected his tenant without a cause. and later, in the reign of edward iv., the judges gave to copyholders a certainty of tenure by allowing them an action of trespass on ejectment by their lords without just cause. "now," says sir edward coke, "copyholders stand upon a sure ground; now they weigh not their lord's displeasure; they shake not at every sudden blast of wind; they eat, drink, and sleep securely; only having a special care of the main chance, namely, to perform carefully what duties and services soever their tenure doth exact and custom doth require; then let lord frown, the copyholder cares not, knowing himself safe." in the present day a copyholder has as good a title as a freeholder; in some respects a better; for all the transactions relating to the conveyance of copyholds are entered on the court rolls of the manor, and thus a record is preserved of the title of all the tenants. since the passing of the statute of _quia emptores_, 18 edward i., it has not been lawful to create a tenure of an estate in fee simple; so that every manor bears date at least as far back as that reign; to this rule the few seignories, which may have been subsequently created by the king's tenants in capite, form the only exception. the name "manor" is of norman origin, but the estate to which it was given existed, in its essential character, long before the conquest; it received a new name as the shire also did, but neither the one nor the other was created by this change. the local jurisdiction of the thegns who had grants of sac and soc, or who exercised judicial functions amongst their free neighbours, were identical with the manorial jurisdictions of the new owners. although long continued custom has now rendered copyholders quite independent of the will of the lords, yet all copyholds, properly so called, are still expressly stated, in the court rolls of manors, to be holden at the will of the lord; and, more than this, estates in copyholds are still liable to some of the incidents of mere estates at will. in ancient times the law laid great stress on the feudal possession or seisin of lands, and this possession could only be had by the holder of an estate of freehold, that is, an estate sufficiently important to belong to a free man. now, as we have seen, copyholders in ancient times belonged to the class of villeins or bondsmen, and held, at the will of the lord, lands of which the lord himself was alone feudally possessed. the lands held by the copyholders still remained part and parcel of the lord's manor; and the freehold of these lands still continued vested in the lord; and this is the case at the present day with regard to all copyholds. the lord of the manor is actually seised of all the lands in the possession of his copyhold tenants. the lord, having the legal fee simple in the copyhold lands comprised in his manor, possesses all the rights incident to such an estate, controlled only by the custom of the manor, which is now the tenant's safeguard. thus he possesses a right to all the mines and minerals under the land, and also to all timber growing on the surface, and this even though the timber may have been planted by the tenant. however, it must be borne in mind that these rights are somewhat interfered with by the rights which long continued custom has given to the tenants, for the lord cannot come upon the lands to open his mines, or to cut his timber, without the copyholder's leave. a copyholder cannot commit any waste, either voluntary, by opening mines, cutting down timber or pulling down buildings; or permissive, by neglecting to repair. for the land, with all that is under it or upon it, belongs to the lord of the manor; the tenant has nothing but a customary right to enjoy the occupation; and if he should in any way exceed this right, a cause of forfeiture to his lord would at once accrue.[5] by the customs of manors, on every change of tenancy, whether by death, sale, or otherwise, fines of more or less amount become payable to the lord. by the customs of some manors the fine payable was anciently arbitrary; but now in modern times, fines, even when arbitrary by custom, are restrained to two years' improved value of the land after deducting quit rents. in some manors a fine is due on the change of the lord; but in this case the change must always be by act of god, and not by any act of the party. the tenure of an estate in copyholds involves an oath of fealty from the tenant, and together also with suit to the customary court of the manor. another incident of the tenure, and this sometimes a very profitable one, is the escheat to the lord on failure of heirs. before the abolition of forfeiture for treason and felony, the lord of a copyholder had a great advantage over the lord of a freeholder in this respect, that, whilst freehold lands in fee simple were forfeited to the crown by the treason of the tenant, the copyholds of a traitor escheated to the lord of the manor of which they were held. one of the most curious incidents of the tenure is the right of the lord, on the death of a tenant, to seize the tenant's best beast, horse, or other chattel under the name of a heriot. now it would appear that heriots were introduced into england by the danes. the heriot of a military tenant was his arms and habiliments of war, which belonged to the lord for the purpose of equipping his successor. and it would seem that in analogy to this purely feudal custom, the lords of manors usually expected that the best beast or other chattel of each tenant, whether he were a freeman or a villein, should on his death be left to them. in old wills of copyholders we constantly find this legacy to the lord of the manor the first bequest mentioned: in fact the tenant really making a bounty of what was actually an obligation. in cases where the tenant died intestate the heriot of the lord was taken in the first place out of his effects, unless indeed the lord seized the whole of the goods, which not unfrequently happened in days before custom had so completely controlled the rights of the lord, and at the same time protected the interests of the tenant. heriots survive to this day in many manors, a true badge of the ancient servility of the tenure. now, however, the right of the lord is confined to such a chattel as the custom of the manor, grown into a law, will permit him to take; and in most cases the heriot consists not of a chattel at all, but merely of a money payment. the mode in which copyhold land is transferred from one person to another still retains much of the primitive simplicity of bygone ages. the copyholder personally surrenders the lands into the hands of the lord, generally through his steward, and this surrender is evidenced by the delivery of some article varying according to the custom of the particular manor: in some manors the surrender is effected by the delivery of a rod, in others of a straw, and again in others by a glove. the surrender having been duly effected, the purchaser is admitted, and the various documents used are all entered upon the court rolls of the manor. the steward is the person who makes the entries on the court rolls, and they are kept in his custody, but subject however to the right of the tenants to inspect them. the steward also usually presides at the copyhold courts of the manor. a special custom is required to entitle the wife of a copyholder to any interest in her husband's lands on his death intestate. where such a custom does exist the wife's interest is termed her _freebench_, and it consists generally of a life interest in one-third part of the lands of which the husband died possessed. freebench in most manors differs from the ancient right of dower in this most important particular, that whilst the widow could claim her dower out of all the freehold lands which her husband actually possessed at any time during the marriage, the right to freebench does not in general attach until the actual death of the husband, and of course may be defeated by a devise of lands by the husband's will. from this it will be seen that freebench is no impediment to free alienation by the husband of his copyholds without any consent on the part of his wife. to this general rule, however, the manor of cheltenham forms an important exception; for by the custom of this manor the widow's freebench attaches in the same way as the ancient right of dower did on all the land of copyhold tenure, of which the husband at any time during the marriage had been possessed. centuries have robbed the manor of much of its importance; most of the honour and prestige has decayed which once surrounded the lord, his power has become controlled by long continued custom, so that the copyhold tenants are practically independent of him, and have as good a title to their lands as freeholders. little remains beyond the most prominent of the old formalities, which at one time gave dignity and importance to the lord of the manor and his court. most of the dealings with copyhold land are now effected out of court, and although the courts are still held at the customary periods, they are for the most part an empty formality, their glamour gone, yet still possessing an especial interest of their own as evidence of the surviving of ancient customs, which have practically remained unchanged through the roll of centuries. ancient tenures. by england howlett. practically all the landed property in england is, by the policy of our laws, supposed to be granted by, dependent upon, and holden of some superior lord, in consideration of certain services to be rendered to such lord by the possessor of this property, and the terms or manner of their possession is therefore called a _tenure_. thus all the land in the kingdom is supposed to be held, mediately or immediately, of the sovereign who is consequently styled the lord or lady _paramount_. all tenures being thus derived, or supposed to be derived, from the sovereign, those who held directly under such sovereign, and in right of the crown and dignity, were called tenants _in capite_, or _in chief_, which was the most honourable species of tenure, although at the same time it subjected the tenants to far greater and more burthensome services than the inferior tenures did, and this distinction ran through all the different sorts of tenure. william i., and other feudal sovereigns, although they made large and numerous grants of land, always reserved a rent or certain annual payments, which were collected by the sheriffs of the counties in which the lands lay, to show that they still retained the _dominium directum_ in themselves. with our ancestors the most honourable and highly esteemed species of tenure was that by knight service, and this was purely and entirely a military tenure, being, in fact, the result of the feudal establishment in england. now to make a tenure by knight service, a determinate quantity of land was necessary, which was called a knight's fee, _feodum militare_; the measure of which in 3 edward i., was estimated at twelve ploughlands, and its value (although it varied with the times) in the reigns of edward i. and edward ii. was stated at £20 per annum. the knight who held this proportion of land was bound to attend his lord to the wars for forty days in every year, if called upon so to do, which attendance was his rent or service for the land he claimed to hold. if, however, he held only half a knight's fee, he was only bound to attend his lord twenty days, and so on in proportion. this tenure of knight service drew with it several consequences as inseparably incident to the tenure in chivalry, and one of the most profitable, and, at the same time, arbitrary of these was marriage. this incident called marriage was the right which the lord possessed of disposing of his infant wards in matrimony, at their peril of forfeiting to him, in case of their refusing a suitable match, a sum of money equal to the value of the marriage; that is, what the suitor was willing to pay down to the lord as the price of marrying his ward; and double the market value was to be forfeited, if the ward presumed to marry without the consent of the lord. the personal attendance rendered necessary by knight service growing troublesome and inconvenient in many respects, the tenants found means of compounding for it; first, by sending others in their stead, and then in process of time making a pecuniary satisfaction to the lord in lieu of it. this pecuniary satisfaction at last came to be levied by assessments at so much for every knight's fee; the first time this appears to have been done was in 5 henry ii., on account of his expedition to toulouse; but it soon became so universal that personal attendance fell quite into disuse. from this period we find, from our ancient histories, that when the kings went to war, they levied scutages on their tenants, that is, on all the landowners of the kingdom, to defray their expenses, and to pay for the hire of troops. these assessments, in the time of henry ii., seem to have been made in a most arbitrary manner, and entirely at the king's will and pleasure. the prerogative became, indeed, abused to such an extent, that at last it became a matter of national clamour, and king john was obliged to consent by his _magna carta_, that no scutage should be imposed without the consent of parliament. but this clause was omitted in the charter of henry iii., where we only find that scutages, or escuage, should be taken as they were used to be taken in the time of henry ii.; that is, in a reasonable and moderate manner. yet afterwards, by statute 25 edward i., and many subsequent statutes, it was again provided, that the king should take no aids or tasks but by the common assent of the realm; hence it was held that scutage, or escuage, could not be levied except with the consent of parliament; such scutages being indeed the groundwork of all succeeding subsidies, and the land tax of later times. it will easily be seen that with the degenerating of knight service, or personal military duty into a pecuniary assessment, all the advantages were destroyed, and nothing in fact remained but the hardships. instead of having a national militia, composed of barons, knights, and gentlemen, bound by their interests and their honour to defend the king and country, the whole system of military tenures tended to nothing else but a wretched means of raising money to pay an army of occasional mercenaries. at length the military tenures, with all their heavy appendages were destroyed at one blow by statute, 12 charles ii., c. 24, which enacts "that the courts of wards and liveries, and all wardships, liveries, primer seisins, and ousterlemains, values and forfeitures of marriage, by reason of any tenure of the king or others, be totally taken away. and that all fines for alienation, tenures by homage, knight service, and escuage, and also aids for marrying the daughter, or knighting the son, and all tenures of the king _in capite_, be likewise taken away. and that all sorts of tenures, held of the king or others, be turned into free and common socage; save only tenures in frank almoign, copyholds, and the honorary services of grand serjeanty." another ancient tenure was that by _grand serjeanty_, whereby the tenant was bound, instead of serving the king generally in the wars, to do some special honorary service for the king in person; as to carry his banner, his sword, or the like; or to be his butler, champion, or other officer at his coronation. tenure by _cornage_ was a species of grand serjeanty, being a grant of land upon condition that the tenant was to wind a horn when the scots or other enemies entered the land, in order to warn the king's subjects. the tenure of petit serjeanty bears a great resemblance to the tenure of grand serjeanty; for as the one is a personal service, so the other is a rent or render, both tending to some purpose relative to the king's person. petit serjeanty as defined by littleton, consists in holding lands of the king, by service of rendering to him annually some small implement of war, as a bow, a sword, a lance, an arrow, or the like. this, of course, is but socage in effect, for it is no personal service, but a certain rent. the tenure by which the grants to the duke of marlborough and the duke of wellington, for their great military services to the country, are held, are of this kind, each rendering a small flag or ensign annually, which is deposited in windsor castle. bury house (new forest), the property of sir charles mill, bart., is held by the tenure of presenting the king whenever he enters the new forest with a brace of milk-white greyhounds. a breed of these dogs is preserved by the family in readiness. king george iii. received dogs in recognition of this tenure in 1789, and the incident is the subject of one of lawrence's pictures. in beckwith's edition of blount's "fragmenta antiquitatis," the following tenure is inserted from the "black book of hereford."--"the tenants at hampton bishop, in the county of hereford, were to get yearly six horse loads of rods or wattels, in the hay wood, near hereford, and bring them to hereford to make booths (or hurdles to pen sheep in) at the fair when they should be required; and for every load of the said rods they were to be allowed a halfpenny at the fairs." this tenure would appear to relate to one particular fair only, and not to all the fairs formerly held at hereford. the particular fair is supposed to have been the one beginning on may 19th, and commonly called the nine-days' fair, from the circumstance of its continuing for that length of time. from time immemorial this fair was proclaimed, with certain formalities, by the bishop of hereford's bailiff, or his deputy, the tolls of the fair belonging to one or both of these officers. during the continuance of the fair, the bishop's bailiff superseded the mayor of hereford as acting magistrate, the fair being held in a street opposite the bishop's palace. brienston, in dorsetshire, was held in grand serjeanty by a curious jocular tenure, viz.:--by finding a man to go before the king's army for forty days when he should make war in scotland (some records say in wales) bareheaded and bare-footed, in his shirt, and linen drawers, holding in one hand a bow, and in the other an arrow without feathers.[6] the dukes of athol hold the blair athol estate by the tenure of presenting a white rose to the sovereign whenever he visits them there. land was frequently held by the tenure of protecting the church property in times of war. scott tells us how the bishop of durham gave lands to the danish count, witikind, to be held by this tenure. the story is not true, but the tenure is; broad lands he gave him on tyne and wear, to be held of the church by bridle and spear; part of monkwearmouth, of tynedale part, to better his will and soften his heart. _harold the dauntless._ canto i., iv. the tenure of ancient demesne exists in those manors, and in those only, which belonged to the crown in the reigns of edward the confessor and william the conqueror, and in domesday book are called _terroe regis edwardi_. the tenants are freeholders and possessed certain privileges, the chief of which was a right to sue and be sued only in their lord's court. another kind of ancient tenure, still subsisting, is the tenure of frankalmoign, or free alms, and this is the tenure by which the lands of the church are for the most part held. this tenure is expressly excepted from the statute, 12 charles ii., by which the other ancient tenures were destroyed. it has no peculiar incidents, the tenants not being bound even to do fealty to the lords, because, as littleton says, the prayers and other divine services of the tenants are better for the lords than any doing of fealty. as the church is a body having perpetual existence, there is, moreover, no chance of any escheat. by this tenure almost all the monasteries and religious houses held their lands. it was an old saxon tenure; and continued under the norman revolution, through the great respect that was shewn to religion and religious men in ancient times. this too, no doubt, is the reason that tenants in frankalmoign were discharged from all other services except the repairing of highways, building castles, and repelling invasions; just in fact as the druids, among the ancient britons, had similar privileges. the tenure being purely spiritual, the lord had no remedy for neglect by distress or otherwise, but merely a complaint to the ordinary to correct it. one of the most interesting tenures is that of borough english. there are a great number of manors throughout the country in which this tenure prevails; they are not however confined to one county or one district. borough english is the right of succession of the youngest son, instead of the eldest, to real estate in case of intestacy, but the custom is not always the same; it differs in different manors. in some it is confined to the sons only, and if there should be no son the estate is shared equally amongst all the daughters. in other manors, principally sussex, the youngest daughter inherits. again, there are cases to be found where if there be no children, the youngest brother inherits, and in others it goes according to the rules of the common law. there are, moreover, places in which the copyhold land only is borough english, while the freehold is held by the ordinary tenure, and in others the freehold and copyhold alike follow the borough english custom. the area over which this borough english tenure prevails is an exceedingly wide one. it is found in nearly every part of europe, except perhaps italy and spain--in germany, hungary, the ural mountains, and in asia as far as the borders of china. many attempts have been made to explain the custom. littleton suggests that the youngest son, by reason of his tender age, is not so capable as the rest of his brethren to help himself. it is possible the origin may have come to us from the tartars, amongst whom this custom of descent to the youngest son also prevails. that nation is composed almost entirely of shepherds and herdsmen, and the elder sons, as soon as they are capable of leading a pastoral life, migrate from their father with a certain allotment of cattle, and go to seek a new habitation. and thus we find that, among many other northern nations, it was the custom for all the sons, but one, to migrate from the father, which one became his heir. the tenure of gavelkind prevails principally in the county of kent. it is universally known what struggles the kentish men made to preserve their ancient liberties, and with how much success those struggles were attended. it seems fair therefore, to conclude that this custom was a part of those liberties, agreeably to the general opinion, that gavelkind, before the norman conquest, was the general custom of the realm. the distinguishing properties of this tenure are various; some of the principal are these: 1. the tenant is of age sufficient to alienate his estate by feoffment at the age of fifteen. 2. there never was any escheat in case of an attainder and execution for felony; their maxim being "the father to the bough, the son to the plough." 3. in most places, the tenant had the power of devising his lands by will, before the statute for that purpose was made. 4. the lands descend not to the eldest, youngest, or any one son only, but to all the sons together. this last incident is, of course, the most important affecting the tenure, and not only this, but also the most interesting, in that, like borough english, it prevails to the present day. true it is that certain lands in kent, once gavelkind, have been made descendable according to the rules of the common law, by special statutes; however, these statutes only affect a very small portion of the county. gavelkind and borough english, being customs already acknowledged by the law, need not be specially pleaded; it is sufficient to show that the lands are affected and regulated by the same; but all other private customs must be pleaded. the ancient barons of buccleuch, both from feudal splendour and from their frontier situation, retained in their household at branksome a number of gentlemen of their own name, who held lands from their chief for the military service of watching and guarding his castle. nine and twenty knights of fame hung their shields in branksome hall nine and twenty squires of name brought them their steeds from bower to stall. nine and twenty yeomen tall waited duteous on them all. they were all knights of metal true, kinsmen to the bold buccleuch. "lay of the last minstrel."--scott. canto i., iii. laws of the forest. by edward peacock, f.s.a. the subject of "the laws of the forest" and of the wild things which have their homes therein, both in our own island and elsewhere, has been a matter of discussion for ages; but very little has been written thereon which is of much service, except to legal specialists. it is, indeed, one of those difficult subjects which is hardly possible to make interesting to those whose thoughts range in the present rather than in the past. there can be no doubt whatever, that from the birth of the human race, long ere we can trace our history back in written documents, the killing of animals has been a sport as well as a means of procuring food; both these may be considered, whatever certain dreamers may aver to the contrary, as among the necessities of human life. we cannot be quite certain whether the stone axes, hammers, and spears, of which we see such numbers in our museums, were wrought in anticipation of the delights of the chase, or whether they were simply, what may be called, the tools of the primæval butcher; but, knowing as we do, the contempt in which every man at the present hour is held, who having wealth and leisure enough to indulge in what is called "sport," abstains from amusing himself in some form of slaughter, we may well believe that our palæolithic predecessors, however empty the larder might be, would try to impose on themselves that what they did was done to amuse themselves, as a manly exercise, not a stern necessity. in confirmation of this, we must call mind that there have been found several weapons with the reindeer and other animals carved, or perhaps it would be better to say scratched, upon them with a high degree of pictorial excellence; we may therefore infer that amusement, as well as appetite, occupied the minds of those early artists, who so deftly represented the creatures on whom they waged war. had they merely been regarded as things to be eaten, such as the tinned meats we now buy from the provision merchant, they would never have been held worthy of artistic treatment. one of the oldest proverbs that have come down to us, if indeed it be not the very oldest, is that wherein we are told something "of nimrod the founder of empire and chace, who made the woods wonder and quake for their race." that he was the first of the great hunters is a dream of lord byron's, not in any way countenanced by holy scriptures, or any of the old authorities. we are simply told in genesis that nimrod was a son of cush, and that "he began to be a mighty one in the earth. he was a mighty hunter before the lord. wherefore it is said, even as nimrod the mighty hunter before the lord."[7] the precise meaning of this has been questioned. it most likely signifies that nimrod was the first person who organised those mighty hunting expeditions, which were so famous in the days of the great oriental despotisms. from these tyrants it is probable that the forest laws of mediæval europe had their origin. in the sculptures that have been unearthed in the dead cities of the east, hunting scenes of great magnificence are not uncommon, nor are they unknown in egypt, where, however, the capture of fish was the more common sport, as the nile may be said to have been at every man's door. that forest laws of some kind or other existed in these far-off times may be accepted as certain, and we may take it for granted, when we call to mind the general legislation then in force, that they were terribly cruel according to our modern ideas, but we can at present only arrive at these conclusions by inference. when rome became the mistress of the world, we know that in many parts of the empire the wild creatures were rigorously preserved, but we do not think that they were often hunted by their owners. such was rather the duty of freed men and slaves. those which were fit for food were preserved as delicacies for the table, but the larger beasts, such as the lion, the tiger, the bear, the lynx, and perhaps even the wild cat, were reserved for the sports of the amphitheatre. amphitheatres were much more common than is usually supposed. in a few places their remains exist still, but most of them have perished, serving as quarries for stone during the whole of the middle ages, and in mohammedan lands to a much more modern period, perhaps even to the present day. we are not sure that any list of them has been preserved, or could now be compiled, but they were so numerous throughout the empire that the possession of wild beasts on the immense estates of the roman patricians must have been a great source of wealth to their owners. the roman nobles did not care for field-sports as the northern nations did. a feeling or instinct of this kind dies hard. at the present day the italian cares much less for such amusements than the englishman, the german, or the inhabitants of northern france. virgil, who represents more fully than any other heathen poet, the feelings of the better sort of romans of his own time, says, attributing the words to another, but evidently speaking his own thoughts:- "above aught else let the woods be dear to me."[8] this was, however, not for the sake of the slaughter that might be perpetrated therein, but on account of their many beauties and the grateful shade which they afforded. virgil was in many respects a modern in his love of scenery, though we doubt whether snow-clad mountains and craggy heights would have appealed to him as they have done to us during the short time that has elapsed since we have been able to see them without discomfort. when the roman empire was in the zenith of its glory, there does not seem to have been in gaul or britain any vast stretches of forest. the country was no doubt well wooded when we compare it with the france or england of to-day, for during the last two hundred years trees have been wantonly destroyed, to the great injury of agriculture as well as local beauty, for the sake of supplying land-owners with ready money. long continued wars have also desolated the national forests for the sake of supplying timber to the shipbuilder. after the various invasions which desolated so many parts of the roman empire, large portions of gaul reverted to a state of nature. towns and villages were burned, their inhabitants slaughtered, or scattered far away from their homes. a picturesque account of what followed is given in montalembert's _les moines d'occident_, from which we gather that much of gaul had reverted to a state of nature, such as it was in ere civilisation had made its first incursions on the untamed wilderness. the lives of the early gallic saints, found scattered through the many volumes of the _acta sanctorum_, bear the like testimony, as do many parts of the old romances, the scenes of which so often lie in the trackless forest. in england, things may not have been quite so woeful. the population, we believe, never became so scanty as in eastern gaul. it is still a matter of controversy whether here the native folk were slaughtered or driven into the mountains of wales, or whether the greater part of them were made bondmen. we hold the latter opinion, but the whole subject is beset with great difficulties. however this may be, it is quite certain that the population was very much reduced; many wide districts, which had been carefully cultivated by the roman settlers, or natives who had adopted their manners, were laid waste. the picturesque villas, with their adjoining peasant homesteads, were all gone--burnt with fire,--and woodland, scrub, or mere sandy desolation supplied the place of the adjoining pleasure-grounds, farms, and pastures. one of these desolate tracts named andredsweald stretched from kent to the hampshire downs, at some points almost touching the thames. another great forest appears to have extended from a point a little to the north of london, till it reached the forests of rockingham and sherwood. the great level of hatfield chace seems to have been a spur of this, if not so, they were but separated by a narrow stretch of cultivated land from the forest itself. deer were plentiful on hatfield chace until the reign of charles the first. they even continued to exist longer on the eastern side of the trent, on a long and narrow belt of scrub which extended from morton, near gainsburgh, to the point where the trent falls into the humber. an ancestor of our own, who died as recently as 1758, was accustomed to hunt them there. as well as these larger forests, the whole land was dotted over with places once the sites of roman dwellings, but which now had become either mere wastes, or woodlands covered with tall timber trees, interspersed with the elder, the nut, the thorn, the birch, the maple, and the alder. in some places the yew and the holly were abundant also, but they seem to have flourished only in widely separated patches. the saxon and the danish conquests came about gradually, and the country was in so disturbed a state that it was impossible for rigid forest laws to be enacted, or even if written on parchment to be put in force. besides this, the saxon and danish leaders were of a different character from their norman successors. a vague memory still haunted them of the free life once lived in germany and scandinavia; a life as different as can well be imagined from that of modern democracy, but still one in which every thrall, bondman, and slave had certain well ascertained rights, which were under the protection of the state and the church. thus it came to pass that there were in almost every district stretches of forest land, which were, in a great degree, open to the people, where men could fell timber for their dwellings and slaughter animals for food; though even before the norman conquest had come as a shadow on the liberties of englishmen, there is reason for thinking that forestal-rights had become, in name at least, a privilege of the king and his great theïgns. the norman forest law was of a similar character to that which william's forefathers had enforced in normandy. the country, which we have for ages known as france, was, in earlier times, broken up into many provinces, and it was only by a slow process that it became one. each of these provinces had a forest law of its own. when the normans settled in the goodly land which they called after themselves, they retained the customs which they found there. when william transferred the laws of his old duchy to his new kingdom, it could, at the first, only be by an act of favour that anyone could kill a beast of chase except himself or his retainers. this from the nature of things did not last long. william never could have intended to retain the whole of the vast territories which the victory of senlac had given him in his own possession. he divided the kingdom among his chief tenants--tenants _in capite_,--and to these great men, with some slight exceptions, he handed over all forestal rights which existed in their domains, the king retaining to himself for his own pleasure, and as a mark of dignity, some great forests, which for ages have remained in royal hands. notwithstanding certain danish and saxon charters, it has always been traditionally held that our forest laws come from william the first, and this is substantially true, though objections to the statement might be taken. it would not be unsafe to say that no one but the conqueror could have enforced so drastic a regulation. as the bishop of oxford has so truly said, "the king made and kept good peace. the dane-geld and the forest-law were not too much to pay for the escape from private war and feudal disruption."[9] it is true that william had desolated large tracts of land to make them serve him for the chase; the crime was terrible, though exaggerated by modern historians; but he had many noble qualities, so that those who had not personally suffered were willing to overlook the evil. with his son, william the red, the forest laws became unbearable, and were hated by baron and villain alike. he was one of the worst kings which ever disgraced the english throne. in a deeply religious age he was wantonly opposed to all godliness. alike the enemy of god and man, a type and representative of all things evil, we need not wonder when he fell by an arrow in the new forest, that men saw a visible judgment of god. to him, and to henry the first, are commonly ascribed the ferocity of the forest laws. men believed that in after time kings would have mitigated matters had it been in their power. they said, and there is much truth in the averment, that these bad laws required the support of an army of evil men to work them efficiently, and that for the ordinary court officials, or the king himself, to thwart these people would be especially dangerous. when we call to mind what have been from time to time the characters of the farmers of the taxes at naples, and various parts of france, we cannot deny that there is much truth in the statement. affairs reached their most evil point when henry ii. was king. it was then the custom for the royal foresters to be a complete law unto themselves, they put to death and mutilated whom they would without any trial whatever, or with but the mockery of the water-ordeal, a farce which had already been condemned by the church, but which was very fashionable with ruffians who were anxious to secure a conviction. one of these fellows laid hold of an ecclesiastic, with the intention of extracting from him a large sum of money. well was it for him that he was of the diocese of lincoln, and that at that time hugh of avalon was its bishop. the thunders of excommunication were at once heard, the ecclesiastic escaped from the forester's clutches, and from that time forward, though much yet remained to be done, the tide turned, and the forest laws were administered with something more nearly approaching to justice. trial by jury in old times. by thomas frost. when we congratulate ourselves, as we are so apt to do, on the length of time the system of trial by jury has been established in england, and the safeguard it affords against attempts to strain the law to the prejudice of the accused, we are often unmindful of the fact that the institution has not always proved a safeguard when the court, acting under the influence of the crown, endeavoured to obtain a conviction. it was only in the latter half of the sixteenth century that juries began to evince that determination not to yield their own judgment to the wishes of those in high authority, which became further developed in the course of the seventeenth. an interesting illustration of the old spirit of judges, and the new spirit of juries, is afforded by the trial of sir nicholas throckmorton, in 1554, on a charge of high treason, in conspiring the death or deposition of the queen, and the seizure by force of arms of the tower of london. the prosecution was conducted by serjeant stanford and the attorney-general, griffin, the former leading; and it is noteworthy that both they and chief justice bromley questioned the prisoner in much the same manner as is still customary in france and belgium, striving to procure evidence that would convict him out of his own mouth. the endeavour failed, and the only criminating evidence against the prisoner was contained in the alleged confessions of winter and crofts, who, however, were not called as witnesses. the jury, after several hours' deliberation, returned a verdict of not guilty, upon which the lord chief justice addressed them in threatening tones, saying, "remember yourselves better. have you considered substantially the whole evidence as it was declared and recited? the matter doth touch the queen's highness and yourselves also. take good heed what you do." the jury were firm, however, and the foreman replied to the remonstrance of the bench, "we have found him not guilty, agreeable to all our consciences." then the attorney-general rose, and addressing the court, said, "an it please you, my lords, forasmuch as it seemeth these men of the jury, which have strangely acquitted the prisoner of his treasons whereof he was indicted, will forthwith depart the court, i pray you for the queen that they and every one of them may be bound in a recognizance of £500 a-piece, to answer to such matters as they shall be charged with in the queen's behalf, whensoever they shall be charged or called." the court went beyond even this audacious request, for they actually committed the jury to prison! four of them were discharged shortly afterwards, having so little moral stamina left as to make a humble confession that they had done wrong; but the remaining eight were brought before the star chamber and severely dealt with, three being ordered to pay a fine of £2,000 each, and the others £200 each. in the following reign, in a case in which three persons were indicted for murder, and the jury found them guilty of manslaughter only, contrary to the direction of the court, the jurors were both fined and bound in recognizances for their future "good behaviour." a decision of the lord chancellor, the two chief justices, and the chief baron, in the reign of james i., sets forth that when a person is found _guilty_ on indictment, the jury should not be questioned; but when a jury has acquitted a prisoner against what the court holds to be proof of guilt, they may be charged in the star chamber, "for their partiality in finding a manifest offender not guilty." in 1667, we find this view extended to the case of grand juries ignoring a bill on grounds which the court did not consider sufficient. chief justice kelying in that year having fined a grand jury of the county of somerset, for not finding a true bill against a man accused of murder; but, says the report, "because they were gentlemen of repute in the county, the court spared the fine." this case, and several others in which the same judge had acted in a similar manner, were brought under the notice of the house of commons, however, and that assembly resolved "that the precedents and practice of fining or imprisoning jurors for verdicts is illegal." notwithstanding this resolution of the house of commons, william penn, and another member of the society of friends, named mead, being indicted at the old bailey for having, with other persons unknown, unlawfully and tumultuously assembled in gracechurch street, in the city of london, the recorder dealt with the jury in a manner which caused the illegality of fining jurors for their verdicts to be again brought into question. the indictment set forth that penn, by agreement with and abetment of mead, did in the open street speak and preach to the persons there assembled, by reason whereof a great concourse of people gathered and remained a long time, in contempt of the king and the law, and to the great terror and disturbance of many of his majesty's liege subjects. the trial took place before the recorder, the lord mayor, and the aldermen; and when witnesses had deposed that penn had preached, and that mead was there with him, the recorder summed up the evidence, and the jury retired to consider their verdict. they were absent a considerable time, at length returning with the verdict that penn was "guilty of speaking in gracechurch street." "is that all?" the recorder asked. "that is all i have in commission," replied the foreman. "you had as good say nothing," observed the recorder, and the lord mayor added, "was it not an unlawful assembly? you mean he was speaking to a tumult of people there." "my lord," returned the foreman, "that is all i have in commission." "the law of england," said the recorder "will not allow you to part until you have given in your verdict." "we have given in our verdict," returned the jury, "and we can give in no other." "gentlemen," said the recorder, "you have not given in your verdict, and you had as good say nothing; therefore go and consider it once more, that we may make an end of this troublesome business." the jury then asked for pen, ink, and paper, and the request being complied with, they again retired, returning after a brief interval with their verdict in writing. they found penn "guilty of speaking or preaching to an assembly met together in gracechurch street," and mead not guilty. "gentlemen," said the recorder, regarding the jury angrily, "you shall not be dismissed till we have a verdict that the court will accept; and you shall be locked up, without meat, drink, fire, and tobacco. you shall not think thus to abuse the court. we will have a verdict, or you shall starve for it." penn protested against this course, upon which the recorder ordered the officers of the court to stop his mouth or remove him. the jury not leaving their box, the recorder again directed them to retire and re-consider their verdict. penn made a spirited remonstrance. "the agreement of twelve men," said he, "is a verdict in law, and such a one having been given by the jury, i require the clerk of the peace to record it, as he will answer at his peril. and if the jury bring in another verdict contradictory to this, i affirm they are perjured men in law. you are englishmen," he added, turning to the jury, "mind your privilege; give not away your right." the court then adjourned to the following morning, when the prisoners were brought to the bar, and the jury, who had been locked up all night, were sent for. they were firm of purpose, and through their foreman persisted in their verdict. "what is this to the purpose?" demanded the recorder, "i will have a verdict." then addressing a juror, named bushel, whom he had threatened on the previous day, he said, "you are a factious fellow; i will set a mark on you, and whilst i have anything to do in the city, i will have an eye on you." penn again protested against the jury being threatened in this manner, upon which the lord mayor ordered that his mouth should be stopped, and that the gaoler should bring fetters and chain him to the floor; but it does not appear that this was done. the jury were again directed to retire and bring in a different verdict, and they withdrew under protest, the foreman saying, "we have given in our verdict, and all agreed to it; and if we give in another, it will be a force upon us to save our lives." according to the narrative written by penn and mead, and quoted in forsyth's "history of trial by jury," this scene took place on sunday morning, and the court adjourned again to the following day, when, unless they were supplied with food surreptitiously, they must have fasted since saturday. the foreman gave in their verdict in writing, as before, to which they had severally subscribed their names. the clerk received it, but was prevented from reading it by the recorder, who desired him to ask for a "positive verdict." "that is our verdict," said the foreman. "we have subscribed to it." "then hearken to your verdict," said the clerk. "you say that william penn is not guilty in manner and form as he stands indicted; you say that william mead is not guilty in manner and form as he stands indicted; and so say you all." the jury responded affirmatively, and their names were then called over, and each juror was commanded to give his separate verdict, which they did unanimously. "i am sorry, gentlemen," the recorder then said, "you have followed your own judgments and opinions, rather than the good and wholesome advice which was given you. god keep my life out of your hands! but for this the court fines you forty marks a man, and imprisonment till paid." penn was about to leave the dock, but was prevented from doing so, upon which he said, "i demand my liberty, being freed by the jury." "you are in for your fines," the lord mayor told the prisoners. "fines, for what?" demanded penn. "for contempt of court," replied the lord mayor. "i ask," exclaimed penn, "if it be according to the fundamental laws of england, that any englishman should be fined or amerced but by the judgment of his peers or jury; since it expressly contradicts the fourteenth and twenty-ninth chapters of the great charter of england, which say, 'no freeman ought to be amerced but by the oath of good and lawful men of the vicinage.'" "take him away," cried the recorder. "they then," continues the narrative, "hauled the prisoners into the bail-dock, and from thence sent them to newgate, for non-payment of their fines; and so were their jury. but the jury were afterwards discharged upon an _habeas corpus_, returnable in the common pleas, where their commitment was adjudged illegal." even then, judges appear to have remained unconvinced of the illegality of the practice, or stubborn in their desire to enforce their own views or wishes upon juries; for the question was not regarded as finally settled until the decision in the court of common pleas was clinched, in the same year, by a similar judgment of the court of king's bench. barbarous punishments. by sidney w. clarke. that the world has become more merciful as it has grown older, is a truism at once apparent to anyone who gives even a cursory glance at any of the numerous works dealing with the criminal laws of the olden time. still the approach to the most excellent quality has been regretably and painfully slow, and it is surely a stain on the boasted enlightenment of the nineteenth century, that the century had run through nearly three-fourths of its existence before the terrible and vindictive punishment of drawing and quartering disappeared from our statute book. in most states the early laws have been of a blood-thirsty and fear-inspiring nature, but what excuse can be urged for the fact that until the fourth day of july, in the year of grace 1870, the punishment ordained by law for the crime of high treason, was that the unfortunate offender should be drawn on a hurdle to the place of execution, there to be hanged by the neck till he be dead; that his head be severed from his body; that his body be divided into four quarters; and that his head and quarters be at the disposal of the crown. in blackstone's time the sentence was still more savage, or, as the great commentator puts it, "very solemn and terrible." it was that the offender be drawn to the gallows, and not be carried or walk; "though usually," says blackstone, "by connivance, at length ripened by humanity into law, a sledge or hurdle was allowed to preserve the offender from the extreme torment of being dragged on the ground or pavement;" that he be hanged by the neck and then cut down alive; that his entrails be taken out, and burned before his eyes, while he was still alive; that his head be cut off, his body be divided into four parts, and his head and quarters be at the king's disposal. what our tender-hearted monarchs did with the quivering pieces of flesh let the stones of temple bar, the city gates, and the tower bear witness. here are a couple of extracts from that perennial fountain of information, the diary of mr. samuel pepys. under date of october 13th, 1660, he writes, "i went out to charing cross to see major-general harrison," one of the regicides, "hanged, drawn, and quartered, which was done there, _he looking as cheerful as any man could do in that condition_." note the grim humour of the words in italics. "he was presently cut down, and his head and heart shown to the people, at which there was great shouts of joy." again, on october 20th, in the same year:--"this afternoon going through london and calling at crowe's, the upholsterer's, in st. bartholomew's, i saw the limbs of some of our new traytors set upon aldersgate, which was a sad sight to see; and a bloody week this and the last have been, there being ten hanged, drawn, and quartered." it will be observed that the masculine gender is used in the foregoing sentences for high treason; for, if the offender was a woman, the law with a delicacy (!) one would hardly have expected, recognised that "the decency due to the sex forbids the exposing and publicly mutilating their bodies;" so a woman was simply to be drawn to the gallows, and there burned alive. and these punishments for treason sir edward coke attempted to justify on scriptural grounds, adding "it is punishment undoubtedly just, for our liege lord the king is lord of every one of our members, and they have severally conspired against him, and should each one suffer." evidently justice has not always spelt humanity. another of the horrible punishments decreed by english law was that of boiling to death, which in the reign of henry viii. was inflicted for poisoning, and recalls the most cruel tortures of china and the orient, where slicing to death and impalement alive are or were common forms of punishment. the awful fate of being boiled alive was specially devised for the benefit of john roose, a cook, who had been convicted of throwing poison into a pot of broth intended for the family of the bishop of rochester and for the poor of the parish; in 1542, margaret davey suffered the same lingering death at smithfield. so fearful were our ancestors of poison, that in scotland, in 1601, thomas bellie, a burgess of brechin, and his son were banished for life by the high court of justiciary, for the heinous offence of poisoning a couple of troublesome hens belonging to a neighbour. even the laws of draco, said on account of their severity to have been written not in ink but in blood, can scarcely compete with these examples of british barbarity. among the romans strangulation, precipitation from a rocky height (a mode of carrying out the death sentence still found amongst savage tribes), and lashing to death were forms of punishment. soldiers guilty of military offences had to run the gauntlet. upon a given signal all the soldiers of the legion to which the offender belonged fell upon him with sticks and stones, and generally killed him on the spot. if, however, he succeeded in making his escape, he was thenceforth an exile from his native country. offending slaves were first scourged and then crucified. they were compelled to carry the cross to the place of execution, and after being suspended were left to perish by slow degrees. crucifixion was abolished throughout the roman empire by constantine, out of reverence to the sacred symbol. other cruel punishments were burning alive, exposure to wild animals, and condemnation to fight as gladiators in the arena for the amusement of the citizens. the second of these modes of death, for death was the invariable result, was the one usually meted out to the early christians--"if the tiber overflows its banks; if there be a famine or plague; if there be a cold, a dry, or a scorching season; if any public calamity overtakes us; the universal cry of the people is--"to the lion with the christians _christiani ad leonem_!" parricide was punished in a strange manner. the criminal, after being scourged, was tied or sewed up in a leather bag, with a dog, a cock, a viper, and an ape to keep him company, and so cast into the sea. the egyptians punished the same offence by sticking the prisoner all over with pointed reeds, and then throwing him upon a fire of burning thorns, where he lay till he was consumed. with most nations the _lex talionis_, or punishment of retaliation--an eye for an eye, a limb for a limb--has found a place in the penal system. it was not, indeed, always carried out to its logical conclusion, but rather became the subject of many subtle distinctions. among the athenians, solon decreed that whoever put out the eye of a one-eyed person should for so doing lose both his own. but what, it was asked, should be done where a one-eyed man happened to put out one of his neighbour's eyes? should he lose his only eye by way of retaliation? if so, he would then be quite blind, and would so suffer a greater injury than he had caused. the law of the jews and egyptians compelled anyone, who without lawful excuse was found with a deadly poison in his possession, to himself swallow the poison. an instance of a kind of _lex talionis_ in our own country is found in the reign of edward i., when incendiaries were burnt to death. another example is that, from the reign of henry viii. to that of george iv., to strike a blow and draw blood within the precincts of the king's palace, entailed on the offender the loss of his right hand. here are some of the regulations prescribed by the statute 33 henry viii., chapter 12, for the infliction of the punishment:- "viii. and for the further declaration of the solemn and due circumstance of the execution appertaining and of long time used and accustomed, to and for such malicious strikings, by reason whereof blood is, hath been, or hereafter shall be shed against the king's peace. it is therefore enacted by the authority aforesaid, that the sergeant or chief surgeon for the time being, or his deputy of the king's household, his heirs and successors, shall be ready at the time and place of execution, as shall be appointed as is aforesaid, to sear the stump when the hand is stricken off. "ix. and the sergeant of the pantry shall be also then and there ready to give bread to the party that shall have his hand so stricken off. "x. and the sergeant of the cellar shall also be then and there ready with a pot of red wine to give the same party drink after his hand is so stricken off and the stump seared. "xi. and the sergeant of the ewry shall also be then and there ready with cloths sufficient for the surgeon to occupy about the same execution. "xii. and the yeoman of the chandry shall also be then and there, and have in readiness seared cloths sufficient for the surgeon to occupy about the same execution. "xiii. and the master cook shall be also then and there ready, and shall bring with him a dressing-knife, and shall deliver the same knife at the place of execution to the sergeant of the larder, who shall be also then and there ready, and hold upright the dressing-knife till execution be done. "xiv. and the sergeant of the poultry shall be also then and there ready with a cock in his hand, ready for the surgeon to wrap about the same stump, when the hand shall be so stricken off. "xv. and the yeoman of the scullery to be also then and there ready, and prepare and make at the place of execution a fire of coals, and there to make ready searing-irons against the said surgeon or his deputy shall occupy the same. "xvi. and the sergeant or chief ferror shall be also then and there ready, and bring with him the searing-irons, and deliver the same to the same sergeant or chief surgeon or to his deputy when they be hot. "xvii. and the groom of the salcery shall be also then and there ready with vinegar and cold water, and give attendance upon the said surgeon or his deputy until the same execution be done. "xviii. and the sergeant of the woodyard shall bring to the said place of execution a block, with a betil, a staple, and cords to bind the said hand upon the block while execution is in doing." in addition to losing his hand, the unfortunate offender was imprisoned for life. it was not until 1829 that this punishment was abolished, after having been in existence for a period of 287 years. a curious mode of punishment, intended to make its victim the object of popular ridicule, was in vogue in the ancient german empire, where persons who endeavoured to create tumults and to disturb the public tranquility were condemned to carry a dog upon their shoulders from one large town to another. the penal laws of france were every wit as inhuman as our own--burning alive, breaking on the wheel, hanging, beheading, and quartering were common forms of punishment. awful atrocities were committed on living victims, such as tearing off the flesh with red-hot pincers, pouring molten lead and brimstone into the wounds, and cutting out the tongue. the following is the sentence passed upon ravaillac, the assassin of henry iv., in 1610:--he was first to be privily tortured and then carried to the place of execution. there the flesh was to be torn with red-hot pincers from his breasts, his arms and thighs, and the calves of his legs; his right hand, holding the knife wherewith he committed his crime, was to be scorched and burned with flaming brimstone; on the places where the flesh had been torn off a mixture of melted lead, boiling oil, scalding pitch, wax, and brimstone was to be poured; after this he was to be torn in pieces by four horses, and his limbs and body burned to ashes and dispersed in the air. his goods and chattels were confiscated; the house in which he was born was pulled down; his father and mother were banished, and his other relatives commanded to change the name of ravaillac for some other. this sentence was not, surely, a vindication of outraged justice, but rather a purile and barbarous legal revenge. to return to the laws of our own country. mutilation of one sort or another was long a favourite mode of punishment; pulling out the tongue for slander, cutting off the nose for adultery, emasculation for counterfeiting money, and so on. in foxe's "book of martyrs" there is an account of a miracle which was worked on the person of a mutilated criminal. a bedfordshire man was convicted of theft, and for his crime his eyes were pulled out and other abominable mutilations were inflicted on him. the sufferer repaired to the shrine of st. thomas at canterbury, where after devout and steadfast prayer the parts he had lost were, so we are told, miraculously restored. anyone who fought with weapons in a church had an ear cut off, or if he had already lost both his ears was branded in the cheek with the letter f. by an act passed in the reign of queen elizabeth, the punishment for forgery was that the offender should stand in the pillory and have his ears cut off by the common hangman, his nostrils slit up and seared, and then suffer imprisonment for life. in 1731 joseph cook, aged 70 years, underwent this punishment, the mutilation taking place while he stood in the pillory at charing cross. the coventry act (22-23 charles ii., chapter 1.) was passed in consequence of sir john coventry having been assaulted in the street and his nose slit, out of revenge as was supposed. it enacted that if any person should of malice, aforethought, and by lying in wait, cut out or disable the tongue, put out an eye, slit the nose, or cut off or disable any limb or member of any other person, with intent to maim or to disfigure him, such person, his councillors, aiders, and abettors, should be guilty of felony without benefit of clergy, which implied the punishment of death. this act was not repealed until 1828, and resulted in at least one curious case. in 1772, one coke and a labourer named woodburn were indicted under the act--coke for hiring and abetting woodburn, and woodburn for the actual offence of slitting the nose of one crispe, who was coke's brother-in-law. the intention of the accused was to murder crispe, and they left him for dead, having terribly hacked and disfigured him with a hedge-bill, but he recovered. an attempt to murder was not then a felony, but under the coventry act to disfigure with an intent to disfigure was; and the accused were indicted for the latter offence. coke, in the course of his defence, raised the point that the attack on crispe was made with intent to murder him and not with intent to disfigure, therefore, he contended, the offence was not within the statute under which he was indicted. but the court held that if a man attacked another intending to murder him, with such an instrument as a hedge-bill, which could not but endanger a disfiguring of the victim, and in such attack happened not to kill but only to disfigure, he might be indicted for disfiguring. the jury found the prisoners guilty, and they were condemned and duly executed. the laws for the protection of trade decreed many cruel punishments. thus, in the reign of elizabeth, an act passed for the encouragement of the woollen industry prescribed that the penalty for taking live sheep out of the country should be forfeiture of goods, imprisonment for a year, and that at the end of the year the left hand of the prisoner should be cut off in a public market, and be there nailed up in the most public place. a second offence was punishable with death. by statute 21 james i. chapter 19, anyone unfortunate enough to become a bankrupt was nailed by one ear to the pillory for two hours, and then had the ear cut off. under the romans a bankrupt was treated still more unmercifully, for at the option of his creditors he was either cut to pieces or sold to foreigners beyond the tiber. a longstanding disgrace to the intelligence and humanity of our countrymen was the fact that in former times burning alive was the inevitable fate of poor wretches convicted of witchcraft, the penal laws against which were not repeated until 1736. so late as 1712, five so called witches were hung at northampton, and in 1716 mrs. hicks, and her daughter, aged nine, were condemned to death at huntingdon for selling their souls to the devil. even children of tender years were not spared, but with their elders alike fell victims to our law's barbarity; there are many recorded instances of children under ten years of age being executed. in scotland the last execution for witchcraft took place in 1722. space will not permit any attempt to run through the whole gamut of legal iniquities; at most we can only attempt a very incomplete catalogue of the inhumanities at one time or another incident to our penal codes, and with a final horror we must bring this article to an end. the punishment with which we are now about to deal, that of pressing to death, _peine forte et dure_ as it was called, is perhaps the most noteable example of the former barbarity of our law, since it was inflicted before trial on innocent and guilty alike, who refused to plead "guilty" or "not guilty" to an indictment for felony. what this punishment was, which was first instituted in 1406, can best be told by giving the form of the judgment of the court against the person who refused to plead:--that the prisoner shall be remanded to the place from whence he came, and put in some low, dark room, and that he shall lie without any litter or other thing under him, and without any manner of covering; that one arm shall be drawn to one quarter of the room with a cord and the other to another, and that his feet shall be used in the same manner; and that as many weights shall be laid upon him as he can bear, and more; that he shall have three morsels of barley bread a day, and that he shall have the water next the prison, so that it be not current; and that he shall not eat the same day on which he drinks, nor drink the same day on which he eats; and that he shall continue so till he die or answer. _peine forte et dure_ was not abolished till 1772, and was frequently undergone by accused persons in order to preserve their estates from being forfeited to the crown, which would have been the case if they had stood their trial and been found guilty. the year 1741 is probably the last date on which the punishment was inflicted. in 1721, two men, thomas cross and thomas spigot, were ordered to be pressed to death at the old bailey. cross gave in on seeing the preparations made for his torture, but spigot was made of sterner stuff. in the "annals of newgate" is a description of his sufferings:--"the chaplain found him lying in the vault upon the bare ground with 350 pounds weight upon his breast, and then prayed by him, and at several times asked him why he would hazard his soul by such obstinate kind of self-murder. but all the answer that he made was--'pray for me, pray for me!' he sometimes lay silent under the pressure, as if insensible to pain, and then again would fetch his breath very quick and short. several times he complained that they had laid a cruel weight upon his face, though it was covered with nothing but a thin cloth, which was afterwards removed and laid more light and hollow; yet he still complained of the prodigious weight upon his face, which might be caused by the blood being forced up thither, and pressing the veins as violently as if the force had been externally upon his face. when he had remained for half-an-hour under this load, and 50 pounds weight more laid on, being in all 400 pounds, he told those who attended him he would plead. the weights were at once taken off, the cords cut asunder; he was raised by two men, some brandy was put into his mouth to revive him, and he was carried to take his trial." in 1735, a man, who pretended to be dumb at the sussex assizes, was sent to horsham gaol to be pressed to death unless he would plead. he endured in agony a weight of 350 pounds, and then the executioner, who weighed over 16 stones, laid himself upon the board upon which the weights were placed, and killed the wretched man instantly. trials of animals. by thomas frost. one of the most singular features of the jurisprudence of the middle ages, and one which was retained in the french code down to nearly the middle of the last century, was the indictment of domestic animals for injuries inflicted on mankind. the records of the criminal tribunals of france disclose ninety-two such judicial processes between 1120 and 1741, when the last of these grotesque trials took place in poitou. the practice seems to have been based on the mosaic law, it being there ordered that, "if an ox gore a man or a woman that they die, then the ox shall be stoned, and his flesh shall not be eaten." (exodus, c. xxi., v. 28.) oxen and pigs were the animals that most frequently were the subjects of these strange proceedings, the indictment against the former being for goring persons, while the latter suffered for killing and sometimes devouring very young children. the earliest instance of which any particulars can be gathered occurred in 1314, when, according to m. carlier, who relates the story in his history of the duchy of valois, a bull escaped from a farm-yard in the village of moisy, and gored a man so severely that death ensued. the count of valois, being informed of the fatility, directed that the bull should be captured, and formally prosecuted for causing the man's death. this was done, and evidence was given by persons who had seen the man attacked and killed. the bull was thereupon sentenced to suffer death, which was inflicted by strangulation, after which the carcase was suspended from a tree by the hind legs. but the affair did not end thus, for the sentence was appealed against, probably by the owner of the bull, on the ground that the retainers of the count of valois had no legal authority to execute the sentence. this plea was debated at great length, and the provincial parliament eventually decided that, though the sentence was a just one, the count of valois had no justiciary authority in the district of moisy. next in the order of time comes the trial at falaise of a sow which had torn the face and arm of a child, from the effects of which injuries it died. the sow was condemned to be mutilated in the head and one fore leg, and afterwards to be strangled, which sentence was executed in the public square of the town. this was in 1386. three years later, a horse was condemned to death at dijon for having killed a man. in 1403, simon de baudemont, lieutenant of meulan; jean, lord of maintenon; and the bailiff of mantes and meulan, signed an attestation of the expenses incurred in the prosecution and execution of a sow that had killed and partially eaten a child. the following is a copy of the document, to which it may be added that the story of the trial and execution may be found in the "curiosités judiciaires et historiques du moyen age" of m. aguel:--"item, for expenses within the gaol, 6 sols. item, to the executioner, who came from paris to meulan to put the sentence in execution, by command of our lord the bailiff and of the king's attorney, 54 sols. item, for the carriage that conveyed her to execution, 6 sols. item, for ropes to tie and haul her up, 2 sols, 8 deniers. item, for gloves, 12 deniers; amounting in the whole to 69 sols, 8 deniers." in connection with the first item of this curious document, it may be observed that, in a receipt delivered five years later by a notary of pont de l'arche to the gaoler of the prison of that town, the same amount is allowed for the daily food of a pig, imprisoned on the charge of killing a child, as for a man in the same prison. the last item, the gloves, is supposed by m. aguel to be a customary allowance to the executioner. in 1457, a sow and her six young pigs were tried at lavegny, on the charge of having killed and partially eaten a child. the sow was convicted, and condemned to death; but the little ones were acquitted on the ground of their tender years or months, the bad example of their mother, and the absence of direct evidence of their having partaken of the unnatural feast. in 1494, sentence of death was pronounced on a pig by the mayor of laon for having mutilated and destroyed an infant in its cradle, full particulars of which case were given in the "annuaire du departement de l'aisne" for 1812. the act of condemnation, as there given, concludes as follows:--"we, in detestation and horror of this crime, and in order to make an example and satisfy justice, have declared, judged, sentenced, pronounced, and appointed that the said hog, being detained a prisoner, and confined in the said abbey, shall be, by the executioner, strangled and hanged on a gibbet, near and adjoining the gallows in the jurisdiction of the said monks, being near their copyhold of avin. in witness of which we have sealed this present with our seal." this document was sealed with red wax, and endorsed:--"sentence on a hog, executed by justice, brought into the copyhold of clermont, and strangled on a gibbet at avin." three years later, a sow was condemned to be beaten to death for having mutilated the face of a child of the village of charonne. the act of condemnation in this case directed further that the flesh of the sow should be given to the dogs of the village, and that the owner of the sow and his wife should make a pilgrimage to the church of our lady at pontoise, and bring on their return a certificate that this injunction had been duly complied with. in 1499, a bull was strangled for having killed a boy in the lordship of cauroy, which belonged to the abbey of beaufiré. lionnois gives, in his history of nancy, a full report of the proceedings on the delivery of a condemned pig to the executioner of that city in 1572. he mentions, among other details, that the animal, secured by a cord, was led to a cross near the cemetery; that from the most remote period the justice of the lord, the abbot of moyen moutier, was accustomed to deliver to the provost, or marshal of st. diez, near to this cross, all condemned criminals, that execution might ensue; and that, the said pig being a brute beast, the mayor and the justice held a conference at that place, and left the said pig tied with a cord, without prejudice to the judicial rights of the lord. judicial proceedings against the lower animals were not confined to france, for the list of such cases compiled by m. berriat st. prix, and published in the "memoires de la societé des antiquaires" for 1829, mentions one tried at lausanne in 1364, another at the same town in 1451, a third at basle in 1474, another at lausanne in 1479, and a fifth at the same place in 1554. concerning the first of these swiss trials, ruchat states, in his history of the protestant reformation in switzerland, that the victim was a pig that had killed a child in the village of chattens, situated among the jorat hills. it was cited to appear in the bishop's court at lausanne, convicted of murder, and sentenced to death--the executioner being a pork butcher. the basle case was a very singular one. a farm-yard cock was tried on the absurd charge of having laid an egg. it was contended in support of the prosecution that eggs laid by cocks were of inestimable value for use in certain magical preparations; that a sorcerer would rather possess a cock's egg than the philosopher's stone; and that satan employed witches to hatch such eggs, from which proceeded winged serpents most dangerous to mankind. on behalf of the gallinaceous prisoner, the facts of the case were admitted, but his advocate submitted that no evil animus had been proved against his client, and that no injury to man or beast had resulted. besides, the laying of the egg was an involuntary act, and as such not punishable by law. if it was intended to impute the crime of sorcery to his client, he was entitled to an acquittal; for there was no instance on record of satan having made a compact with one of the brute creation. in reply, the public prosecutor stated that, though the evil one did not make compacts with brutes, he sometimes entered into them; and though the swine possessed by devils, as related by the evangelists, were involuntary agents, yet they, nevertheless, were punished by being caused to run down a steep decline into the lake of galilee, where they were drowned. the poor cock was convicted, and condemned to death, not as a cock, however, but as a sorcerer, or perhaps a devil, in the form of a cock, on which finding it was, with the egg attributed to it, burned at a stake, with all the form and solemnity of a judicial execution. as the lower animals were amenable to the law in switzerland in those dark ages, so, in certain circumstances, they could be put into the witness box. if a house was broken into between sunset and sunrise, and the occupier killed the intruder, the act was regarded as justifiable homicide. but it was thought right to provide by law against the case of a man, living alone, who might invite a person whom he wished to kill to spend the evening with him, and having slain him, might assert that he committed the act in self-defence, or to protect his property, the dead man having been a burglar. therefore, when a man was killed in such circumstances, the occupier of the house was required to produce some domestic animal that was an inmate of the house, and had witnessed the tragedy, and to declare his innocence on oath in the presence of such animal. if the brute witness did not contradict him, he was acquitted; the law taking it for granted that god, rather than allow a murderer to go unpunished, would intervene by causing a miraculous manifestation by the mouth of a dumb witness. even more strange than the trials of oxen, pigs, etc., for offences against mankind, were the legal proceedings often taken in the middle ages against noxious insects and the smaller quadrupeds, such as rats. the "memoires de la societé royale academique de savoie" contain a very curious account of the proceedings instituted in 1445 and 1487 against certain beetles that had committed great ravages in the vineyards of st. julien. advocates were named on behalf of the vine-growers and the beetles respectively; but, by a singular coincidence, the insects disappeared when cited to answer for the mischief they had done, and the proceedings were in consequence abandoned. that was in 1445. in 1487, however, they re-appeared, and a complaint was thereupon addressed to the vicar-general of the bishop of maurienne, who named a judge, and also an advocate to represent the beetles. counsel having been heard on both sides, the judge suggested that the vine-growers should cede to the defendants certain land, where they could live without encroaching on the vineyards. the plaintiffs agreed to this compromise, with the proviso that, in default of the defendants accepting the terms offered them, the judge would order that the vineyards should be respected by the beetles under certain penalties. the advocate for the beetles demanded time for consideration, and on the resumption of the proceedings stated that he could not accept, on behalf of his clients, the suggestion of the court, as the land proposed to be given up to them was barren, and afforded nothing upon which they could subsist. the court then appointed assessors to survey the land in question, and on their report that it was well wooded and provided with herbage, the conveyance was ordered to be engrossed in due form and executed. the matter was then regarded by the plaintiffs as settled; but the beetles discovered, or their advocate discovered for them, that a quarry of an ochreous earth, used as a pigment, had formerly been worked on the land conveyed to the insects, and though it had long since been worked out, some person possessed an ancient right of way to it, the exercise of which would be extremely prejudicial to them. consequently, the agreement was held to be vitiated, and the legal proceedings had to be recommenced _de novo_. how they eventually terminated cannot be told, owing to the mutilation of the documents relating to the proceedings subsequent to 1487. nearly a century later, legal proceedings were commenced by the inhabitants of a village in the diocese of autun against the rats by which their houses and barns were infested; the trial being famous in the annals of french jurisprudence as that in which chassanee, the celebrated jurisconsult, first achieved distinction. the rats not appearing on the first citation, chassanee, who was retained for the defence, argued that the summons was of too local a character, and that, as all the rats in the diocese of autun were interested in the case, they should be summoned throughout the diocese. this plea being admitted, the curé of every parish in the diocese was instructed to summon all the rats within its limits to attend on a day named in the summons. the day having arrived, and the rats failing to appear, chassanee said that, as all his clients were summoned, including old and young, sick and healthy, great preparations had to be made, and certain necessary arrangements effected, and he had to ask, therefore, for an extension of time. this also being granted, another day was appointed, but again not a single rat put in an appearance. chassanee then made an objection to the legality of the summons. a summons from that court, he said, implied full protection to the parties summoned, both on their way to it and on their return to their homes; and his clients, the rats, though most anxious to appear in obedience to the court, did not dare to leave their homes to come to autun, on account of the number of evil-disposed cats kept by the plaintiffs. if the latter would enter into bonds, under heavy pecuniary penalties, that their cats should not molest his clients, the summons would be immediately obeyed. the court acknowledged the validity of this plea, but the plaintiffs declined to be bound for the good behaviour of their cats. the further hearing of the case was, therefore, adjourned _sine die_, and thus chassanee gained his cause. full particulars of the proceedings are given in a latin work, written by him, and published in 1588. devices of the sixteenth century debtors. by james c. macdonald, f.s.a., scot. in the year 1531, a certain john scott, residenter in the good town of edinburgh, was financially in a condition of chronic decrepitude. his household goods were rapidly going to the hammer, and one creditor, bolder than his fellows, decided to attack the impecunious personality of the common debtor. writs from court and messengers of the law were severally set in motion; and on the earliest possible day one of those myrmidons served upon the debtor personally, a writ bearing the terrible title of "letters of iv forms." the "coinless" john was therein warned that if he failed forthwith to pay or satisfy the lawful debt, for which decreet has gone out, he would (unless he went to prison in a peaceful way) be declared a rebel against the king's majesty. now john reasoned with himself that payment he could not make; outlawry he rather feared; and _squalor carceris_ he could not endure. what was to be done? he had heard of the horns of the hebrew altars: how that personal safety resulted from any manual attachment thereto. was there some such boon in bonny scotland? there was holyrood, with its sanctified abbey. it was near; any port in such a storm. down the canongate, and straight to the sanctuary he ran--all to the manifest loss, injury, and damage of his creditors who followed, having got wind of this unique _hegira_ from the red-nosed city guard. in vain the creditors pleaded; equally in vain were their threats. the canny scot was warranted safe and skaithless against "all mortal." annoyed at his debtor's immunity from arrest, chagrined that any money john possessed had now been further dissipated in the abbey admission dues to its protection giving portals--each creditor turned sadly to his "buiks of compts" and superscribed over against john scott's name the expressive legend "bad debt." and this john scott became the forerunner, _de facto_, of a long line of "distressed" persons. nay more, he secured an immortality as lasting as that of the sovereign whose solemnly sounding "letters of iv forms," he spurned and left unanswered. a generation later, and another _new_ way of paying old debts is placed on record. to balance international honours it is of anglican origin. scoggan, the jester of the elizabethan court, falls into financial distress. he borrows £500 from the queen--_mirabile dictu_. only a fool would have tried such a thing. it was put down as a "short loan," but it soon became clear to the royal lender that its longevity would outlast her reign. to all demands the clownish borrower smilingly cried "long live the queen," until at last his existence as court fool was in danger of being ended. but he would rather die than be evicted; and die he did. he became, theatrically speaking, defunct. the _late_ scoggan was accordingly borne, to solemn music, past the royal garden; and the queen, seeing the mournful show--and knowing nought of its hollowness--asked whose it was. "scoggan, your majesty," was the reply. "poor fellow," she exclaimed, "the £500 he owed me i now freely forgive." whereupon the "defunct" sat up and declared that the royal generosity had given him a new lease of life. "thou rogue," said the queen, "thou art more rogue than fool. thou hast improved upon the plan of that john scott, who, in the reign of my late cousin of scotland, as sir james melvil tells me, got rid of the oldest debt and the longest loan." laws relating to the gipsies. by william e. a. axon, f.r.s.l. early in the fifteenth century the gipsies made their appearance in europe, and as strangers were not favourably regarded in those days the advent of these dark-skinned people, speaking a language of their own, dressing in a picturesque, but uncommon costume, and having their own rulers, and their own code of morals, and owning no allegiance to the laws of the land in which they sojourned, naturally attracted attention. at first some credence was given to their high-sounding pretensions, and the dukes, counts, and lords of lesser egypt received safe conducts and protection under the idea that they were engaged in religious pilgrimages. but the seal of the emperor sigismund would not protect them when the term of their pretended pilgrimage had expired, nor would the manners and customs of the gipsies substantiate any special claim to sanctity or religious fervour. even the ages when the divorce was most marked between religion and morals would be staggered by the thefts, and worse outrages that were laid to their charge. sigismund's safe conducts are said to have been given not as emperor, but as king of hungary, and some of the gipsies were early employed as ironworkers in the realm of st. stephen. in 1496 king ladislaus gave a charter of protection to thomas polgar and his twenty five tents of gipsies because they had made musket bullets and other military stores for bishop sigismund at fünfkirchen, but whatever consideration may have been shewn to them in the beginning, they speedily became objects of suspicion and dislike. there is not a country in europe which has not legislated against them or endeavoured to exile them by administrative acts. their expulsion from spain was decreed in 1492, from france in 1562, and from various italian states about the same time. denmark, sweden, and the netherlands have also pronounced against them. the diet of augsburg in 1500, ordered their expulsion from germany on the ground that they were spies of turkey seeking to betray the christians. this edict, though several times repeated, was non-effective. in hungary and transylvania the authorities, hopeless of getting rid of the troublesome immigrants, took strong measures to bring them into line with the rest of the population. they were prohibited from using the romany tongue, from retaining their gipsy surnames, from wandering about the country, from eating carrion, and from dealing in horses. those fit for military service were to be taken into the army, and the rest were to live and dress and deport themselves in the same manner as the peasantry of the country. these regulations were not wholly effective, but the result of the efforts put forward by maria theresa, and her successors may be seen in the sedentary gipsies of the austro-hungarian empire. at times they have been subjected to fierce persecution. in 1782, a dreadful accusation was brought against the hungarian romanis, when more than a hundred of them were accused of murder and cannibalism. the gang were said to have lived by highway robbery and murder, and to have cooked and eaten the bodies of their victims. at frauenmark four women were beheaded, six men were hanged, two were broken on the wheel, and one was quartered alive. altogether forty-five were executed and many more were imprisoned. how much of this was suspicion substantiated by torture? the gipsies came frequently in contact with the myrmidons of the law. "as soon as the officer seizes or forces away the culprit," says grellmann, "he is surrounded by a swarm of his comrades who take unspeakable pains to procure the release of the prisoner.... when it comes to the infliction of punishment, and the malefactor receives a good number of lashes well laid on, in the public market place, a universal lamentation commences among the vile crew; each stretches his throat to cry over the agony his dear associate is constrained to suffer. this is oftener the fate of the women than of the men; for as the maintenance of the family depends most upon them, they more frequently go out for plunder." it is a noteworthy fact that grellmann writing in 1783, has not a word of condemnation of the barbarous practice of flogging women. in england as elsewhere the earliest of these romantic people were welcomed. in 1519, the earl of surrey entertained "gypsions" at tendring hall, suffolk, and gave them a safe-conduct. still earlier in 1505, anthony gaginus, earl of little egypt, had a letter of recommendation from james iv. of scotland to the king of denmark. james v. bestowed a charter upon james faa, lord and earl of little egypt, by which he was privileged to execute justice upon his followers, much in the same way as the great barons were authorised to deal with their vassals. but they soon fell out of favour. in england, in the twenty-second year of henry viii. an act of parliament was passed which sets forth that there are certain outlandish people, who not profess any craft, or trade, whereby to maintain themselves, but go about in great numbers from place to place, using craft and subtlety to impose on people, making them believe that they understood the art of foretelling to men and women their good or ill fortune, by palmistry, whereby they frequently defraud people of their money, likewise are guilty of thefts and highway robberies; it is ordered that the said vagrants, commonly called egyptians, in case they remain sixteen days in the kingdom, shall forfeit their goods and chattels to the king and be further liable to imprisonment. in 1537, cromwell writes to the lord president of the marches of wales, that the "gipcyans" had promised to leave the kingdom in return for a general pardon for their previous offences, and exhorts the authorities to see that their deportation is effected. many were sent to norway, but the effort to extirpate them from the kingdom entirely failed.[10] by an act of 1554, a penalty of £40 was to be inflicted upon any one knowingly importing them. those gipsies, following "their old accustomed devlishe and noughty practises," were to be treated as felons, but exception was made in favour of such as placed themselves in the service of some "honest and able inhabitant." many were executed, but the remnant survived and managed to hold a yearly meeting at the peak cavern or kelbrook, near blackheath. still sterner was the law passed in 1562-3, which made it felony for any one born within the kingdom to join the fellowship of vagabonds calling themselves egyptians. the previous acts had referred to the gipsies as an outlandish people, but now the native born were brought equally within the meshes of this sanguinary law. "throughout the reign of elizabeth," as borrow remarks, "there was a terrible persecution of the gipsy race; far less, however, on account of the crimes which were actually committed, than from a suspicion which was entertained that they harboured amidst their companies priests and emissaries of rome." the harrying of the missionary priests was in part dictated by the spirit of religious persecution, but in a still greater degree by the conviction that they were political emissaries, aiming at the subversion of the kingdom. the priests on the english mission had often to disguise themselves, and at times may have assumed the garb of wandering beggars, but they are not likely to have consorted with the romans, whose language would be strange to them, and whose heathenish indifference to all dogmas, rites, and ceremonies, would be specially distasteful to zealous catholics. after "the spacious times" of great elizabeth, the gipsies had a rest from special oppression, though they were of course still in jeopardy from the harsh laws as to vagrancy and those minor crimes, that are their characteristic failings. romany girls were flogged for filching and fortune-telling, and romany men were hanged for horse-stealing. they were looked upon with suspicion, and it was easy enough to raise prejudice against them. this was shewn in the notorious case of elizabeth canning. she was a girl of eighteen, employed as a domestic servant at aldermanbury, and in 1753, disappeared for four weeks. on her return she asserted that she had been abducted and detained in a loft by gipsies, who gave her only bread and water to eat. their aim she declared was to induce her to adopt an immoral life. mrs. wells, mary squires, george squires, virtue hall, fortune and judith natus, were arrested, and wells and squires were committed for trial. the proceedings, partly before henry fielding the novelist, were conducted with a laxity that seems now to be almost inconceivable. at the old bailey trial there was a remarkable conflict of evidence, but in the end mrs. wells was condemned to be burned in the hand, and mary squires to be hanged. sir christopher gascoyne then lord mayor, was satisfied that there had been a miscarriage of justice and made enquiries, a respite was obtained and finally the law officers of the crown recommended the grant of a free pardon to squires. the natural sequel was the prosecution of canning for perjury. fortune and judith natus now swore that they had slept each night in the loft where canning declared she had been imprisoned, but it was very natural that people should ask why they had not given this important evidence at the previous trial. mary squires' alibi was sworn to by thirty-eight witnesses who had seen her in dorsetshire, and was, to some extent, invalidated by twenty-seven who swore that she was in middlesex at the time. as she was too remarkable for her ugliness to be easily mistaken, there must have been some very "hard swearing." canning was convicted of perjury and transported, but the secret of her absence from new year's day, 1553, until the 29th of january was never divulged. the case excited great interest, and the controversy divided the whole of the busy, idle "town," into "canningites" and "gipsyites." the tudor law (22 henry viii., c. 10) was repealed as "of excessive severity" in 1783 (23 george iii., c. 51). the later legislation provides that persons wandering in the habit and form of egyptians, and pretending to palmistry and fortune-telling, are to be deemed rogues and vagabonds (17 geo. ii., c. 5., 3 geo. iv., c. xl.), and is liable to three months' imprisonment (5 geo. iv., c. lxxxiii.), and encamping on a turnpike road involved a penalty of forty shillings (3 geo. iv., c. cxxvi., 5 and 6 william iv., c. 50). some of the older enactments remained on the statute book, though not enforced, until the passing of the statute law revision act of 1863, by which many obsolete parliamentary enactments were swept away. by the famous poynings act, english laws were declared applicable to ireland. the gipsies were never common in the isle of saints, but by a special act they were, in 1634, declared to be rogues and vagabonds (10 and 11 car. i., c. 4). there are acts of the scottish parliament as early as 1449, directed against "sorners, overliers, and masterful beggars with horse, hounds, or other goods," and that this would well describe the earlier gangs of gipsies is undeniable, but whether they were romanis or scots is a matter of controversy not easily decided in the absence of more definite evidence. a tradition of the maclellans of bombie says that the crest of the family was assumed on the slaying of the chief of a band of saracens or gipsies from ireland. the conqueror received the barony of bombie from the king as a reward. having thus restored the fortunes of the family, the young laird of bombie took for his crest a moor's head with the motto "think on." if this legend was evidence, which it is not, there were gipsy marauders in galloway in the middle of the fifteenth century. but in 1505, we have the entry of a gift by the king of scotland of seven pounds to the "egiptianis." in the same year there is a letter already named, in which "anthonius gagino," or gawino, is recommended to the king of denmark. in 1527, eken jacks, master of a band of gipsies, was made answerable for a robbery from a house at aberdeen. in 1539, a similar charge was brought, but not proved, against certain friends and servants to "earl george, callet of egipt." this chieftain was one of the celebrated faa tribe. in 1540, george and john faa were ordered by the bailies of aberdeen to remove their company and goods from the town. this is the first action of a scottish authority against the gipsies as gipsies. but, by a charter dated four days before the municipal decree, james v. confirms to "our lovit johnne faw, lord and erle of little egipt," full power to execute justice over his tribe, some of whom had rebelled and forsaken his jurisdiction. in 1541, an act of the lords of council and session decreed the banishment of the gipsies from the realm within thirty days, because of "the gret theftes and scathis" done by them. some of them passed over the border, but not for long, and in 1553 the faas again had a charter upholding their rights of lordship against lalow and other rebels of their company. and in the next year their is a pardon to four faas for the "slachter of umquhile ninian smaill." the gipsies had the favour of the roslyn family, and it is said that sir william sinclair rescued "ane egiptian" from the gibbet in the burgh muir, "ready to be strangled," and that in gratitude the tribe used to go to roslyn yearly and act several plays in may and june. in 1573, and again in 1576, the gipsies were ordered to leave the realm, but the decree was never put in force. when lady foulis was tried in 1590, one charge was that she had sent a servant to the gipsies for advice as to poison to be administered to "the young laird of fowles and the young lady balnagoune." when james vi. held a high court of justicary at holyrood in 1587, for the reformation of enormities, the offenders to be dealt with included "the wicked and counterfeit thieves and limmers calling themselves egyptians." there were several enactments of the scottish parliament in 1574, 1579, 1592, and 1597. these were all aimed at the nomadic habits of the race, but the settled gipsies were left unmolested. "strong beggars and their children" were to be employed in common work for their whole life, and it is said that salt masters and coal masters thus made serfs of many. in 1603, there was a special "act anent the egiptians," which declared it "lesome" for anyone to put to death any gipsy, man, woman, or child, remaining in the country after a certain date. moses faa appealed against it as a loyal subject, and found a security in david, earl of crawford. this was in 1609, but in 1611 four of the faas were tried at edinburgh under the acts against the gipsies, and were convicted and executed on the same day. constables and justices of the peace were exhorted to put the law in force. four gipsies, who could not find securities that they would leave the kingdom, were sentenced to be hanged in 1616, but were reprieved and probably released. in 1624, eight were executed on the burgh muir, but the women and children were simply exiled. in 1636, a number were condemned at haddington, the men to be hanged and _the women to be drowned_. women who had children were to be scourged and branded in the face. in the latter half of the seventeenth century many were sent to the plantations in virginia, barbadoes, and jamaica. generally, however, the stringent laws were not stringently administered, and from fear or influence of some kind the gipsies often escaped. the british gipsies in our own day find that whilst the law is dealt out to them with perfect impartiality, the social pressure is decidedly against them. at such watering-places as brighton and blackpool--to name two extremes--they tell fortunes as though there were no statutes in that case made and provided. but it is not easy for them to keep on the road. the time cannot be far off when they must live with the _gaújos_[11] as house-dweller or perish from the land. commonwealth law and lawyers. edward peacock, f.s.a. the great civil war as it is called, that is the struggle between charles the first and his parliament, is memorable in many respects. no student of modern history can dispense with some knowledge of it, and the more the better, for it was the result of many things which had happened in the far distant past, and we may safely say that the great french revolution, which produced some good, and such an incalculable amount of evil would have run a far different course to that which it did, had not the political ideals of the men who took part in that terrible conflict been deeply influenced by what had taken place in england a century and a half before. as to the civil wars which had occurred in england in previous days, little need be said. they were either dynastic--the struggle of one man or one family against another--or they were religious revolts against the tudors, by those who vainly endeavoured to re-establish the old order of things in opposition to the will of the reigning monarch and the political servants who supported the throne. the struggle between charles and the long parliament was far different from this. that religion in some degree entered into the conflict which was raging in men's mind long ere the storm burst it would be childish to deny, but it was not so much, except in the case of a very few fanatics, a conflict between different forms of faith as because a great number of the english gentry, and almost the whole of the mercantile class, which had then become a great power, felt that they had the best reasons for believing that it was the deliberate intention of the king and the desperate persons who advised him, to levy taxes without the consent of parliament. this may occasionally have been done in former reigns, but it is the opinion of most of those who have studied the subject in latter days, so far as we can see, without prejudice, that in every case it was illegal. whether this be so or not, it must be remembered that times were in the days of charles the first, far different from what his predecessors the plantagenets and tudors had known. a great middle class had arisen partly by the division of property consequent on the dispersion of the monastic lands, and partly also by the break up of the vast feudal estates, some of which had fallen into the hands of the crown by confiscation, others been sold by their owners to pay for their own personal extravagence. though murmurs had existed for many years, it was not until the memorable ship-money tax was proposed that affairs became really grave. had england been threatened by an invasion such as the spanish armada, there can be no doubt that a mere illegality in the mode of levying taxes to meet the emergency would have been regarded as of little account, but in the present case there was no overwhelming need, and it must be borne in mind that to add to the national irritation the two first stuarts were almost uniformally unsuccessful in their foreign wars. it is to attorney general noy that we owe the arbitrary ship-money tax. he was a dull, dry, legal antiquary of considerable ability, whose works, such as his _treatise concerning tenures and estates_; _the compleat lawyer_; _the rights of the crown_, and others of a like character, are yet worth poring over by studious persons. such a man was well fitted for historical research, no one of his time could have edited and annotated _the year books_ more efficiently, but he had no conception of the times in which he lived, the narrow legal lore which filled his mind produced sheer muddle-headedness, when called upon to confront an arbitrary king face to face with an indignant people. that there was less to be said against this form of royal taxation than any other that legal ingenuity could light upon must be admitted, but as events shewed the course he advised the king to take, was little short of madness. john hampden, who represented one of the oldest and most highly respected races of the english gentry--nobles as they would be called in any land but our own--set the example of refusing to pay this unjust levy. the trial lasted upwards of three weeks, and the men accounted most learned in the law were employed in the case. sir john bankes, the owner of corfe castle, sir edward littleton, and others were for the king. oliver saint john and mr. holborn were for hampden. concerning holborn little seems to be known, but saint john made for himself a great name. his speeches are marvellously learned, shewing an amount of reading which is simply wonderful when we call to mind that in those days all our national records were unprinted, and almost all of them without calendar or index of any sort. it must, however, be remembered that in those days lawyers of both branches of the profession were well acquainted not only with the language in which our records were written, but also with the hands employed at various periods, and the elaborate system of contraction used in representing the words. a full report of this memorable trial is to be found in rushworth's _historical collections_, volume ii. parts 1 and 2. carlyle in his _letters and speeches of oliver cromwell_, in the emphatic diction he was accustomed to use says that saint john was "a dark, tough man of the toughness of leather,"[12] but he does not dwell on his great learning and general ability, as he ought to have done. that saint john's heart was in his work for his client we are well assured. that from a legal point of view, hampden was his only client, we well know, but as a matter of fact, it is no exaggeration to say that he represented the people of england. the decision went in favour of the crown, which was from the first a foregone conclusion. it was a legal victory, but like many lesser victories won before and since success was the sure road to ruin. the sum contended for was absurdly small--twenty shillings only--but on that pound piece hung all our liberties; whether we were to continue a free people or whether we were to have our liberties filched away from us, as had already been the case in france and spain. a sullen discontent brooded over the land, there was no rioting, but in hall and castle, country parsonage and bar-parlour, grave men were shaking their heads and asking what was to come next, all knew that a storm was brewing, the only question was when and where it would burst. events changed rapidly, and saint john though he took no very prominent part in the party struggles ere the war broke out, was undoubtedly the chief legal adviser of those who were in opposition to the faction which desired to make england a despotic monarchy. such was the case during the war which ended in the tragic death of the king, and the establishment of a republican form of government under the name of the commonwealth. saint john once again appears in a public manner which indicates that he was a brave man who had no more fear of the pistol and dagger of the assassin, than he had of the corrupt dealings of those who for a time, to their own imminent peril had misgoverned our country. this time we find him sent by the commonwealth as ambassador to the seven united provinces, then as now commonly called holland, on account of the two provinces of north and south holland, being by far the most influential states in that republic. the dutch though republicans themselves, had during the latter part of our civil war shewn sympathy with the cause of the royalists. after the execution of the king, this feeling became naturally much intensified. on the other hand our newly established republic was for many reasons both of politics and religion very desirous of being on good terms with a sister commonwealth so very near at hand. to explain matters and perhaps to settle the heads of a definite treaty, the english government sent isaac doreslaus, or doorslaer as their ambassador. he was by birth a dutchman and a very learned lawyer. he had come to this country before, the war broke out in 1642. he was then made, probably through the influence of his friend sir henry mildmay, "advocate of the army."[13] his great knowledge of civil law, which had been much neglected in england in times subsequent to the reformation, rendered him of great service in his new position of judge advocate of the army. for the same reason he soon afterwards was created one of the judges of the admiralty court. he became especially hateful to the royalists from his having assisted in preparing the charges against charles the first. in may, 1649, he sailed for holland as envoy of the english government to the hague. he had only spent a short time there, when, while at supper in the witte zwaan (white swan) inn, some five or six ruffians with their faces hidden by masks, rushed into the room where he, in company with eleven other guests were sitting. two of these wretches made a murderous attack on a dutch gentleman of the company, mistaking him for dorislaus. finding out their error they set upon the envoy and slew him with many wounds, crying out as they did so, "thus dies one of the king's judges." the leader of this execrable gang was col. walter whitford, son of walter whitford, d.d. the murderer received a pension for this "generous action"[14] after the restoration. the english parliament gave their faithful servant a magnificent funeral in westminster abbey, june 14, 1649, but when charles the second ascended the throne, his body was disturbed. his dust rests along with that of admiral blake and other patriots in a pit somewhere in saint margaret's churchyard.[15] dorislaus, though a foreigner, ought to rank among our great english lawyers, for his services were devoted entirely to his adopted country. whatever our opinions may be as to those differences which were the forerunners of so much bloodshed and crime, we must bear in mind that many of the foremost men on both sides were actuated by the highest principles of honour. the study of canon law had been prohibited in the preceding century, and the civil law with which it has so intimate a connection, though not made contraband, was so much discouraged that it is no exaggeration to say that the knowledge of it was confined to a very few. selden, whose wide grasp of mind took in almost every branch of learning as it was known in his day, is the only english lawyer we can think of who had mastered these two vast subjects. this is the more remarkable as he was of humble parentage; the son of a wandering minstrel it is said, but from the first his passion for learning overmastered all difficulties. it must, however, be borne in mind that according to the custom of those times when his abilities became known, he met with more than one generous patron. we must for a moment return to saint john who was selected in 1652, to represent his country in holland. there was not, as there is now a trained body of men devoted to the diplomatic service. the reasons why saint john was chosen for this important office are not clear. he was a great and widely read lawyer, who we apprehend was trusted with this difficult mission, not only because the government were assured of his probity, but because the relations between holland and this country depended on many subtile antiquarian details which a mere student of the laws as they were then, would have been unable to unravel. the basis of the sea codes by which the various nations of christendom professed to be ruled, was the laws of oleron (leges uliarences). they were promulgated by richard the first of england, on an island in the bay of acquitaine. how far they were ever suited for their purpose may be questioned, but it is certain that as centuries rolled on, they had though often quoted, ceased to have any restraining power, and as a consequence spain, england, holland, and other powers were guilty of constant acts of what we should now call piracy. a lasting treaty with holland, could saint john achieve it, would have been of immense advantage, but the dutch were in no mood for an alliance on equal terms. it was a brave thing for saint john to undertake so arduous a mission, for he not only run the risk of ignominous failure, but also was in no little danger from the savage desperadoes who thought they did the cause of their exiled master service by murdering the agents of the english government. when saint john arrived at the hague he was put off by slow and evasive answers, which soon shewed to him not only that his own time was being wasted, but what was to him of far more account, the honour of his country was being played with. he gave a proud, short, emphatic reply to the dutch sophistries, and at once returned home again, to cause the celebrated navigation act to be passed, forbidding any goods to be imported into england, except in english ships, or in the ships of the country where the articles were produced. this was well-nigh ruin to the trade of the dutch, who were then the great carriers of the world. in no sketch however brief of the lawyers of this disturbed time, can the name of william prynne be entirely passed over, and yet it is not as a lawyer that his name has become memorable. had he been a mere barrister at law he would long since have been forgotten, but he was an enthusiastic puritan of the presbyterian order, and a no less enthusiastic antiquary. he had probably read as many old records as saint john or selden, but had by no means their faculty of turning them to good account. he first comes prominently before us as attacking the amusements of the court, especially theatrical entertainments. for this he was proceeded against in the star chamber, sentenced to pay five thousand pounds and have his ears cut off; for an attack on episcopacy he was fined another five thousand pounds and sentenced once more to have his ears cut off. he afterwards bore a prominent part in the trial of archbishop laud. all along he continued to pour forth a deluge of pamphlets. he attacked cromwell with such boldness, that the protector felt called upon to imprison him in dunster castle, where however, his confinement was of a most easy character. he is said while there to have amused himself by arranging the lutterell charters, for which that noble home is famous. he took the side of charles the second at the restoration, and as a reward was made keeper of the records in the tower, a post for which he was peculiarly well fitted. there is probably nothing which distinguishes the periods of the commonwealth and the protectorate more markedly from other times of successful insurrection, than the very slight alteration which the new powers introduced into the laws of england. the monarchy, it is true, was swept away, but the judges went on circuit; the courts of chancery and common-law sat as usual, the lords of manors held their courts, and the justices of peace discharged their various functions as if they had been the times of profoundest peace. no confiscations took place, as had been the case in the reign of henry the eighth and his successor, except in cases where the owners had been engaged in what the state regarded as rebellion, and even with regard to those who had fought in what is known as the first war, almost everyone was let off by a heavy fine. a list of these sufferers may be seen in _a catalogue of the lords knights and gentlemen that have compounded for their estates_ (_london printed for thomas dring at the signe of the george in fleet street_, neare clifford's inne, 1655.) the book is imperfect and very inaccurate. this is not of much consequence however, as the documents from which it is compiled known as _the royalist composition papers_, are preserved in the record office, and are open to all enquirers. those who madly engaged in what is known as the second war, had their estates confiscated by three acts of parliament of the years 1651 and 1652. these were reprinted and indexed for the _index society_ in 1879. these latter had their estates given back to themselves or their heirs on the restoration. it does not seem that those who were fined, except in a very few cases had any return made to them. there have been few civil wars ancient or modern wherein the unsuccessful have been so tenderly treated. yet sufferings of the poorer classes among the royalists must have been very great. next to the arbitrary conduct of the king and those immediately about his person, was the provocation which the parliamentarians thought that the established church had given, firstly because many of the bishops and clergy maintained an extreme theory of the divine right of kings, which is said first to have been taught in this country by archbishop cranmer. if this opinion were really accepted as more than a mere figure of flattering oratory, it made those who complied with it mere slaves to the sovereign, however tyrannical or wicked he might prove himself. the second ground of resentment was that they thought archbishop laud and many of the bishops and clergy, concealed roman catholics, "disguised papists," as the common expression ran. we do not believe this charge with regard to laud or most of the others so rashly accused. we are _quite sure_ it was not so if their writings are to be taken as a test of their feelings. whatever may have been the truth, there is no doubt that even the more tolerant of what may be called the low-church party feared the worst. as early as 11th february, 1629, oliver cromwell, who was then member for huntingdon, made a speech in which he said, "he had heard by relation from one dr. beard ... that dr. alablaster had preached flat popery at paul's cross, and that the bishop of winchester (dr. neale), had commanded him as his diocesan, he should preach nothing to the contrary."[16] so inflamed, however, were men's minds that as soon as the parliamentary party was strong enough, laud was indicted for high treason and beheaded. one of the first works of the parliament when strong enough, was to abolish the _book of common prayer_, and put a new compilation called the _directory_ in its place. the use of the prayer book was forbidden not only in public offices of religion, but in private houses also. for the first offence five pounds was to be levied, for the second ten, and for the third the delinquent was to suffer one year's imprisonment.[17] whether this stringent law was rigorously inforced we cannot tell. probably in many cases the local justices would be far more lenient to the clergy who were their neighbours, that would be the legislators at westminster, whose passions were fanned by listening to the popular preachers. not content with interfering with the service-book, various acts were passed relating to "scandalous, ignorant, and insufficient ministers." that the commissioners who put these acts in force removed some evil persons we do not doubt, but if john walker's _attempt towards recovering an account of the number and sufferings of the clergy of the church of england, who were sequestered ... in the grand rebellion_, be not very grossly exaggerated, which we see no reason, to believe, many innocent persons must have had very hard treatment. the marriage laws of england were in a vague and unsatisfactory state from the reign of edward the sixth, until the commonwealth time. an attempt was made in 1653 to alter them. banns were to be published either at church or in the nearest market town on three market days, after this the marriage was to take place before a justice of peace. many entries of marriages of this kind are to be found in our parochial registers. english was made the language of the law in 1650, but latin was restored to the place of honour it had so long held, when the restoration took place. cock-fighting in scotland. it is highly probable that the romans introduced cock-fighting into this country. it is generally believed that the sport was made popular by themistocles. on one occasion he saw two cocks fighting, and their courage greatly impressed him, and he felt such exhibitions might teach a useful lesson of bravery to those who witnessed them. periodical contests were exhibited, and were popular amongst the greeks and romans and with other nations, and were much appreciated by a large section of the inhabitants of this land. in "bygone england," by william andrews, f.r.h.s. (london 1892), will be found a long account of "fighting-cocks in schools." one of the earliest accounts of the pastime in england, says mr. andrews, occurs in a "description of the city of london," by william fitzstephen, who wrote in the reign of henry ii., and died in the year 1191. he records that it was the annual custom on shrove tuesday for the boys to bring their game cocks to the schools, to turn the schoolrooms into cockpits, the masters and pupils spending the morning witnessing the birds fighting. old town accounts contain many references to this custom, for example at congleton, cheshire, is the following item:- "1601. payd john wagge for dressynge the schoolhouse at the great [congleton] cockfyghte." £0 0s. 4d. hugh miller, the famous geologist, who was born in the year 1802, in his popular volume "my schools and schoolmasters," gives a graphic account of that amusement in the cromarty grammar school where he received his education. "the school," says miller, "like almost all other grammar schools of the period in scotland, had its yearly cock-fight, preceded by two holidays and a half, during which the boys occupied themselves in collecting and bringing up the cocks. and such was the array of fighting birds mustered on the occasion, that the day of the festival from morning till night used to be spent in fighting out the battle. for weeks after it had passed, the school floor continued to retain its deeply stained blotches of blood, and the boys would be full of exciting narratives regarding the glories of gallant birds who had continued to fight until their eyes had been pecked out; or who in the moment of victory, had dropped dead in the middle of the cock-pit." miller at some length denounces the cruel sport. in england cock-fighting is prohibited by statute 12 and 13 vict. 3, 92, under which every person who shall in any manner encourage, aid, or assist at the fighting or baiting of any bull, bear, badger, dog, cock, or other animal, shall forfeit and pay a penalty not exceeding £5 for every such offence. in scotland it was not illegal until quite recently. an act was passed in 1850 known as the "cruelty to animals (scotland) act," but the wording of the statute was found not to include the game or fighting-cock. the sport became popular and the law could not touch those that took part in the cruel amusement. it was felt to be a national scandal, and to prevent it, a short statute was passed on 30th may, 1895, whereby the definition of the word _animal_ in the 11th section was amended by adding at the end thereof the words "or any game or fighting-cock, or other domestic fowl or bird." mr. robert bird, the genial and gifted author of "law lyrics," a volume which has been warmly welcomed by the public and the press, has made cock-fighting the subject of a clever poem. cockieleerie-law. by robert bird. _in full court, edinburgh, 23rd december, 1892._ six legal wigs, like well-plumed tappit hens, sat brooding o'er a pair of fighting cocks; while lesser wigs, begowned, and brief in hand, declaimed in flowing periods, of the fray, like ancient bards, that wanted but their harps, their wallets, ballad verse, and song, to make the very goose quills, sleeping on the bench, awake! take sides and spill each other's ink. and as they spake, a legal fog dropt down upon the learned six, and each beheld, in green mirage, born of the cloud of words, two cocks, game cocks, crop-combed, erect, and slim, with feathers dipped in crimson, gold, and blue, frill-necked, with trailing wings and spurs of steel, that on each other flew and pecked and spurred, and spurred and pecked again, until the court reeked like a cock-pit, and the crowd of wigs,- of boyish idle wigs,--took bonnet shapes that hooded scowling brows of cursing men, who laid their bets on this bird, and on that, as, with quick panting breath and beaks agape, they pranced, flew, fought, until the oaken bar seemed spattered o'er with feathers and cock blood. at length one cock the other overthrew, and struck quick spurs into his quivering breast until he died; then he, with croaking crow, fell, wounded, bleeding, dying by his side amid the applauding cheers of thirsty throats, soon to be slaked with liquid bets, and so the battle ended, but the fog remained. a rustling of silk plumes upon the bench, five wigs bent low, and thus great solon spake- "'twas in kilbarchan that this fight was fought, and straight the men who prompted it were ta'en, and jailed, and tried, and sentenced for the same; but now they seek release, and this their plea, that in the gracious act which says that men shall not treat brutes and beasts with cruelty, the name of "_cock_" is absent; therefore they claim full exemption for their brutish deeds, and we, vicegerents of our gentle queen, with spectacle on nose, must well explore this vital point in _cockieleerie-law_. the illumined page of history reveals cock-fighting as an ancient royal sport. the early greeks and romans in their day found pastime sweet in setting cock on cock; the sage themistocles took keen delight in battling fowls; while glorious cæsar, too, loved much to back his bird; and, furthermore, marc antony's gamecocks did always lose when pitted against cæsar's fiercer breed. king henry viii., of sainted memory! at whitehall had a special cock-pit built, wherein his royal birds made lively sport for gentle dames and all his merry knights. the most accomplished scholar of his day, squire roger ascham, tutor to queen bess, much as he loved his books, loved cocks the more, and loved them most when victors in the fight. and last of all, that great and noble duke, the conqueror of blenheim, in game birds found something that reminded him of self; and thus we see the fighting instinct strong in cocks, and other nobles of past time. "game cocks, we find, from earliest cockereldom, delight in war, as dogs to bark and bite, and raining blows upon each other's ribs do best fulfil their part of nature's plan, which built them slim and bade them love the fray; and while we hope no preference here to show,- 'tis open question, whether rearing fowls to wring their necks, or match them in the pit, does more exalt the brute or sink the man. "but here, the cocks were armed with spurs of steel, and 'tis a subtle matter, whether they with iron shod, or spurred with native horn, do deal the deadliest blows in angry fray; and, while we have our own opinion strong! 'tis not within our province to pronounce. "if it be wrong with steel to prick a fowl, what of the spurs with which hard riders goad the bleeding sides of horses in the race, or in the steeplechase, or country hunt? and what of hares in coursing run to death? of quivering foxes torn by yelling hounds? of wheeling pigeons slaughtered for a prize? we make no mention of the common use, of otter hunting, grouse and pheasant drives. and of the sport termed _noble_, where the stag is forced upon the guns that lay him low. no doubt, two blacks can never make one white, nor multiplying blacks turn black to grey; but if to brutalise mankind be thought amiss, then there are other ways, than fighting cocks. "still that's beside our purpose, which is this- to scan the statute, microscope in hand, and note if in its sweep humane, we see a roosting place for fighting chanticleer. and there we find, or rather fail to find, the name of "cock" among the saving list of nineteen beasts protected by the law, though thus the list concludes, "_and other kinds of animals domestic_," or like words. are we to find game cocks, domestic fowls? are we to hold that birds, are animals? our view is quite the contrary, or else there's not a beast, bird, fish, or insect but the term "domestic" would to them apply, and make it penal e'en to slay a louse. "and while, in other parts of this same act, we find "cock" followed by the general phrase, "_or other kind of animal_," we hold it bears not on the matter now in hand, but only serves to show that parliament, when brooding, clucking, hen-like, o'er this act, had cocks well in their eye, and plainly did, of purpose full, omit them from the list; and while bear-fights, bull-fights, dog-fights, and all vile sports and brutish cruelty to beasts, the spirit and the letter of the law do quite forbid, _unanimous we hold cock-fighting is a lawful use of cocks, and finding so we liberate these men_. "it will be said, this statute has been read reversely in our sister england, where it is the charter of proud chanticleer; but what of that? it alters not our mind! but only shews, that they, of feebler clay, stick not at trifles, so the end be good, and let the heart o'erbeat the legal mind; while we, of sterner stuff, fail not to find motes in the sunshine of their simple wits, and gnats to strain out of their cups of wine; for in the nice accomplishment and use of splitting hairs, and weighing feathers small, of riddling wisdom from a peck of words, we are more skilled, more subtle, more profound than our legal brethren of the south." whereat five horse-hair wigs again bowed down in low obeisance to the mighty sage, and straight the court was cleared of cocks and men. fatal links. by ernest h. rann. a consideration of the detection of crime brings forcibly to the mind the fact that officers of law have frequently to depend for success on the accidental discovery of the most trifling items and incidents. conversely the criminal section of the community who prey on the weakness or folly of their neighbours have to fear not only a knowledge of their principal movements, but the discovery of the connecting link which shall complete the chain of evidence against them. the deepest laid plot, the most cunning scheme, contains a flaw which may be fatal to their operations, to their liberty, and even their life, a flaw which no amount of previous examination may detect, a weakness which can rarely be adequately guarded against. justice and the vindication of the law, therefore, depend largely on a proper regard being paid to minor occurrences, which at first sight would seem to have no bearing whatever on the particular case under consideration. the history of crime contains numberless instances where the criminal has been brought to justice through one or other of these causes--the presence of particular hairs or threads on his clothing or on the weapon used, the direction of certain cuts on the body of his victim, the possession of trifling articles. at other times dreams have played no inconsiderable part in the vindication of the law, which has also been aided by supernatural visitants, or by the self-consciousness of the criminal. it would be impossible in a short article like the present to offer a full list of cases of this description, but a few typical instances may be taken with the object of showing how crimes, long hidden, have been discovered in the most remarkable manner. probably the best example occurred at augsburg, in 1821. a woman named maria anna holzmann lived in a house in the town belonging to one sticht. her means only permitted her to occupy a few of the rooms, and the remaining parts of the premises were let to lodgers, among whom were george rauschmaier and joseph steiner. on good friday, april 20th, holzmann disappeared. she had not given notice of her intended departure, and nothing was known of it until some days later when rauschmaier and steiner also left the premises, saying that their landlady had previously quitted the house, leaving them in possession of her keys. this information, however, was not given to the police until may 17th. in the meantime holzmann's relatives had become apprehensive of her safety, and being reluctantly forced to the conclusion that foul play had befallen her, they decided to take an inventory of her property, as it was known that, although in humble circumstances, the woman had managed by care and economy to amass considerable wealth. it was found, however, that the greater part of her money and other valuables were missing. in spite of active enquiries no further action of importance in the matter was possible until the following january, when theresa belter, a washerwoman who also lived in the house, announced that she had found a thigh of a human body hidden in the loft. further investigations revealed a leg and the other thigh in a heap of rubbish in a corner of the room, and between the chimney and the roof, a trunk without head or limbs was discovered. an old gown and a petticoat, identified as portions of the dress of holzmann, were also brought to light, while search in rauschmaier's room disclosed other parts of a woman's body. the head was missing, but when news of the unmistakeable crime was noised abroad, a neighbouring manufacturer stated that during the preceding year he had found a skull, still bearing portions of flesh and hair, in his factory weir, but had not considered the "find" worthy of preservation. there could be no doubt that maria anna holzmann had been murdered, and the whole machinery of the law was put in motion to bring the criminals to justice. suspicion fastened itself strongly upon the two men, rauschmaier and steiner, but actual evidence against them, or indeed against anyone, was of the scantiest description until the separate pieces of the woman's body were placed together. while the left arm was being examined, a brass ring fell out of the bend of the elbow, whence it had evidently slipped from the finger of the murderer. whose was the ring? then became the all important question. rauschmaier was arrested and confessed that he had stolen and pawned several articles of holzmann's property, but he sternly denied having committed the murder. the property, including a pair of ear-rings, had been recovered from the pawnbroker's, and these, with the brass ring, were laid before the accused. he had not wit enough to discern the trap laid for him, and immediately on seeing the ornaments, he exclaimed "the ear-rings and the gold and brass rings are mine. the brass ring i always wore until within four or five weeks after easter, since when i have worn gold ones. the brass ring fits the little finger of my left hand; it slips on and off with ease." this foolish statement, and the place of the discovery of the ring, proved conclusively that rauschmaier was the murderer of the unfortunate holzmann. subsequently he made full confession of the crime, stating that the brass ring must have slipped off while he was cutting up the body. he paid the penalty of his sins with death. the "greenacre" case, which occurred in 1836, was similar to the foregoing in many of its details. in that year, portions of the mutilated trunk of an old woman named brown were found in a house in edgeware road, wrapped in old rags and sacking. subsequently the head was discovered in regent's canal, and the limbs in a drain in the neighbourhood of camberwell. comparison between the various portions left no doubt as to the identity of the deceased, and james greenacre, whom brown intended to marry, and to whose house she had gone with all her property, was accused of the murder. a woman named gale with whom he lived was also charged with complicity in the deed. once more suspicion, however strong, was insufficient to bring the crime right home to the accused, but the discovery, among greenacre's property, of some rags corresponding with the pieces covering the mutilated remains, together with a few articles belonging to brown, turned suspicion into actual proof. greenacre was condemned to death, and his companion sentenced to transportation for life. the murder of william begbie, at edinburgh, is a remarkable case of the manner in which the author of a crime may remain long hidden, and only then be discovered by accident. begbie was a bank porter, and on november 30th, 1806, he was employed to carry a parcel of notes, worth about £4,000, to one of the bank's customers. on his way he had to pass through a narrow, dark, and tortuous entry, and there he was brutally murdered and the notes were stolen. although a knife, of a particular pattern, was left in the body, the murderer remained at large, and no clue to the terrible crime could be unearthed. nine months later the bundle of notes, untouched, was found hidden in a wall, but long years passed before the mystery was completely solved. in 1822 a bow street runner named denovan, while visiting leith, chanced to fall into conversation with a sailor lately returned from captivity among the french. speaking of old times the mariner accidentally mentioned that coming ashore one morning he had noticed a man like william begbie, followed by a person dressed in black and of respectable demeanour. he lost sight of them for a few moments, but later on he was surprised to see the man in black rush out of the narrow entry with a bundle under his arm. on the next day he heard of the murder, and feeling confidant that he could throw light on the crime, he informed the mate of his vessel of what he had seen. permission to go ashore was, however, refused. the vessel sailed, was captured by the french, and the sailor witness did not recover his liberty for fifteen years. denovan set to work with this important clue, and enquiries proved that the man in black was no other than a notorious criminal named mackoul, who had lived in edinburgh in 1806. the law had claimed its own, however, previous to the sailor's disclosures. in 1820 mackoul had suffered death for robbery; still, though he was beyond punishment for his old crime in edinburgh, it was satisfactory to know that the mystery of the bank porter's death had at last been solved. probably the most notorious case in english annals of murder discovered by extraordinary means is that of the killing of daniel clarke by eugene aram. the main facts of the case are so well known that it is scarcely necessary to enter into them here. aram, assisted by a man named houseman, it may be remembered, murdered clarke for the sake of his wealth, and hid the body in st robert's cave, near knaresborough. there it remained from 1745 till 1759, when it was accidentally discovered by a labourer. close examination led to the conclusion that the body, or rather the skeleton, was that of a murdered man, and when the mysterious and almost forgotten disappearance of clarke was remembered, steps were taken to arrest his quondam companions aram and houseman. the latter turned king's evidence, and on his testimony aram was executed, leaving a shady memory to be invested with undeserved romance by a poet and a novelist of the following century. researches into modern criminal records also reveal a number of interesting cases similar to those cited above. a few years ago a pole named lipski was convicted in london of the murder of a woman. strenuous efforts were made to obtain a pardon, on the ground that he had been wrongly convicted, but the solitary fact on which the home secretary decided to allow the law to take its course was that the door of the room had been locked in which the woman was found murdered, with lipski himself hiding under the bed. and in tracing the muswell hill murder to its authors, the police were aided in their endeavours by the discovery of a common lantern which had been left on the scene of the crime. it was supposed to belong to a relative of one of the suspected men, and in order to verify this important link in the chain of evidence, a youthful agent of the detective force was employed to spin his top in front of the supposed owner's house, engage him in conversation if possible, and obtain evidence of the ownership of the lantern. the result was completely satisfactory; the suspicions of the police were confirmed, and the murderers brought to justice, mainly, it may be said, through the lantern's silent testimony. another case of murder, which occurred in 1806, was brought home in a singular and complete manner. a deptford gentleman, named blight, was killed by a pistol-shot, and sir astley cooper, from an examination of the victim's wounds and of the place of his murder, arrived at the opinion that none other than a left-handed man could have committed the crime. acting on this conclusion the police arrested one patch, who had been seen in the locality. when patch was asked to hold up his hand to plead the indictment, he put up his left hand. the jury brought in a verdict of guilty, and before execution the criminal made full confession of his terrible deed. dreams also have played no inconsiderable part in the discovery of crime. we have not space in the present article to notice all trials where dream-evidence has been offered to the court; a brief notice of those cases in which it has had an important bearing must suffice. the most notorious instance, of course, is that of maria martin, the victim of the red barn tragedy. after her departure from home, in order, as was supposed, to many william corder, nothing, either by way of letters, or otherwise, was heard of her, except brief mention in corder's communications. nearly twelve months passed, when mrs. martin was startled and horrified by dreaming, on three successive nights, that maria had been murdered and buried in the red barn. after much persuasion her husband and son consented to search the place, and there, in the exact spot indicated by mrs. martin as having been pointed out in her dreams, was found the body of her missing daughter, buried under the flooring in a sack. mention may also be made of the case of ulick maguire, an irish farmer, whose wife dreamed that her husband had been murdered by a disappointed lover of hers, named o'flanagan. a few days later an idiot boy, who lived in the house, was heard shrieking in terror: "shanus dhu more o'flanagan (big black james) has kilt ulick, and buried him under the new ditch at the back of the garden. i dhramed it last night, evry wurrd av it." the singular coincidence of the lad's dream with her own excited mrs. maguire's suspicions to the utmost, especially as her husband was away from home at the time. she ordered a search at the particular spot mentioned by the idiot boy, and there, to her horror, was found the body of ulick, with the skull cleft in twain. immediate request was made for "big black james." he had absconded and enlisted in the army, but on being charged with the crime he admitted his guilt, and suffered the penalty of death. in one instance, by far the most wonderful of its kind, the victim of a murder has appeared in successive dreams, and played the part of detective with admirable skill and effectiveness. a grub street victualler, named stockton, was murdered towards the close of the seventeenth century. three men were suspected of the crime, but neither of them could be discovered, and the affair seemed likely to become one of the mysteries of crime, when a mrs. greenwood dreamed that stockton, who had been a neighbour during life, had taken her to a house in thomas street, telling her that his murderer was inside. on going to the house in person mrs. greenwood was told that maynard, one of the suspected men, had gone abroad. the following night stockton appeared and showed her the features of maynard, and gave her such particulars of the man's habits and resorts that he was captured within a few hours. from maynard the names of his partners in guilt, bevel and marsh, were obtained, but again the authorities were at fault, until stockton indicated the house where marsh visited, and the yard (afterwards discovered to be the yard of marshalsea prison) in which bevel would be found. from a crowd of other prisoners mrs. greenwood identified bevel, and shortly afterwards, through her strange testimony, marsh also was arrested. then, as an old chronicle of the case affirms, stockton appeared for the last time, and thanked her for her good offices. we have given the story as it has come down through two centuries; a whole body of clergymen attested its accuracy at the time, and present-day enquirers would have great difficulty, we imagine, in conclusively proving that the murder of stockton was traced by other and less extraordinary means. closely allied to the evidence furnished by dreams, and indeed, as in the foregoing case of stockton, sometimes barely distinguishable from it, is that offered by ghosts, actually seen by witnesses in a waking, but hallucinatory, state. such evidence would scarcely be admissable in modern courts of law, but in past ages it was freely employed, and has served to bring criminals to the gallows. it must be admitted that the other testimony against the accused was strong, but in numerous instances ghosts have been instrumental in putting the officials on to a clue or track which they would most likely never have discovered by their own unaided efforts. in his "history of durham," surtees mentions the case of anne walker, who lived in 1630, and had become engaged in an intrigue with a relative of the same name. the girl was placed for a time under the care of a friend in a neighbouring village, but one night she was removed from there by walker and a man named sharp. from that date no one saw her alive. a fortnight afterwards, graime, a fuller, was terrified by the appearance in his mill of anne walker's ghost, "dishevelled, blood-stained, and with five wounds in her head." she told him the whole story of her murder; how sharp had killed her with a collier's pick, and then thrown her body down a shaft. graime hesitated to use this strangely acquired information. apparently incensed at his delay, anne walker repeatedly appeared, and in order to rid himself of these visitations, the frightened fuller at length acquainted the authorities with his story. immediate enquiry confirmed his statements in every particular. walker and sharp were arrested, charged with the murder of the girl, found guilty, and executed, though to the last they maintained their innocence of the crime. a case, somewhat similar, has occurred even in the present century, and in matter-of-fact, new world australia, where visions might be expected to be few and far between. the friends of a well-to-do settler near sydney were surprised to hear from his steward that he had been suddenly called to england on important legal business. remembering the vast wealth of the man, and the necessity for precautions in regard to it, they accepted the statement, and also recognised the steward's control of the estate during his master's absence. what was the astonishment, however, of one of these friends, when on riding over the estate he saw the owner, whom he thought to be in england, sitting on a neighbouring stile? the figure looked at him silently and sorrowfully, then walked towards a pond and disappeared. drags were procured and the water searched, when the body of the absent owner was brought to the surface. confronted with the corpse the steward confessed that he had murdered his master at the identical stile on which the ghost had sat. pierre le loyer, a french writer on law and the supernatural, mentions in his "discours des spectres," the case of a man who mysteriously vanished, having, as was supposed, been murdered. a few weeks later the ghost of the absentee appeared to his brother, took him to a lonely spot, and there pointed out where he had been murdered and buried by his own wife and her lover. enraged at this domestic perfidy and wickedness the brother denounced his sister-in-law, and on his testimony she was condemned to be strangled and her body afterwards burned. about half a century ago a peculiar case of fraud was disclosed by remarkable means during the hearing of a law-suit in tuscany. the decision of the court turned on the point whether a certain word had been erased from a particular document of importance. chemical processes were alleged to have been employed, and acting on scientific knowledge one of the lawyers proposed that the document should be heated, as thereby a slight difference of shade or colouring between the paper and the letters supposed to have been removed might become visible. permission was given to try the experiment, and on the application of heat the important word in question immediately appeared, and the court gave a verdict in accordance with this ingeniously devised testimony. since that time the progress and development of science have enabled criminal investigation to be conducted by methods which would otherwise be impossible, and with almost unerring certainty and decision. the microscope and the spectroscope have been employed in numerous cases of murder and forgery where less subtle means of discovery would have proved useless; chemical analysis has become an important agent of detection, while photography has also rendered signal service in the cause of justice. we may not have concerned ourselves with the numerous methods by which bank-note forgeries are detected; hitherto our references have been mainly to the more serious crime of murder, and with a few instances of this character brought to light through modern science our list must close. although, generally speaking, the microscope cannot discern any difference between the blood of man and that of other mammalia, yet the merest examination suffices to show the difference between mammalian blood and that of birds, reptiles, or fishes. in the one case the red blood corpuscles are round, and without a nucleus; in the other they are oval and nucleated. on this fact the evidence for a prisoner at chelmsford charged with murder was completely rebutted. blood stains had been found on his clothes, which, according to his counsel, had been caused by chicken's blood. but the prosecution brought forward a microscopist, who stated that the blood stains were mammalian, and on this testimony the plea of the prisoner was rejected. in the following year, and at the same assizes, the testimony against a man charged with murder was strengthened by the microscopical discovery of cotton fibres on a certain weapon, which he was said to have used, while the murderers of a man who had been kicked to death were convicted on the evidence of two doctors, who found on the boots of the accused a number of hairs corresponding with the hair on the head of the victim. evidence of this kind is becoming of extreme importance. hardly a serious crime is investigated without the application of one or other of these scientific methods of detection, and with each success the career of the criminal becomes increasingly difficult and arduous, and his chances of success more remote. of remarkable discoveries of crime the microscope, the camera, and the spectroscope furnish the most subtle instances, and it is quite possible that before long other methods of investigation, founded on the most recent scientific achievements, will also be brought into operation. the phonograph and the röntgen rays are only waiting their turn to serve in the cause of justice. post-mortem trials. by george neilson. it might be thought that a man's death made an end of him, and that his mere body had no rights or duties except that of getting decently buried. the middle age had other ideas. the dead still had status and duties. continental laws recognised acts of renunciation in which a widow laid the keys on her husband's corpse, or tapped his grave with the point of a halberd. the body of a murdered person, or, it might be his hand merely, might be carried before the judge to demand vengeance.[18] by english thirteenth century law[19] legal possession of real estate was thought to remain in a man, not until he died, but until his body was borne forth to burial. the dead might be a very potent witness, as shewn by the ordeal of bier-right,[20] a practice founded on the belief that the murderer's touch would cause the victim's wounds to bleed afresh. thus variously qualified to act as witness or prosecutor as occasion required, it is not surprising to find the dead as defendant also. english history[21] remembers the strange scene enacted in the monastery of caen in 1087, when william the conqueror lay dead there, and the ceremonials of his interment were interrupted by a weird appeal. ascelin, the son of arthur, loudly claimed as his, neither sold nor given, the land on which the church stood, and, forbidding the burial, he appealed to the dead to do him justice. more than one[22] old english poem turned its plot round the ancient canon law, by which a burial might be delayed for debt. the dead was arrestable: a law afterwards set aside, "for death dissolved all things." but in more codes than one death did not dissolve liability for the consequences of high treason. in scotland,[23] in the year 1320, at the "black parliament" of scone, several scotsmen were convicted of conspiracy against king robert the bruce. most of them were drawn, hanged, and beheaded. but a scottish historian of the time tells us that roger of mowbray, one of the accused, having died before his trial, "his body was carried to the place, convicted of conspiracy, and condemned to be drawn by horses, hung on the gallows, and beheaded." it is to the credit of bruce that he did not allow the corporal part of the sentence to be carried out, although many entries in the charter rolls[24] shew that the consequent escheats of the traitor's lands served to reward the loyalty of others. his body convicted of conspiracy! how came this singular procedure into scottish practice? in england, towards the close of the fourteenth century, although escheats were not less keenly looked after than in scotland--and that sometimes in cases[25] where men had died unconvicted,--the purpose of attainder appears to have been effected without the expedient of calling the dead to the bar. the dead, however, was convicted. in the case of robert plesyngton,[26] for instance, in 1397, the judgment of parliament bore an express conviction of treason, "_noun-obstant la mort de dit roberd_." in 1400, john, earl of salisbury, challenged for treason by lord morley, was killed before the day appointed for the duel. the court not only adjudged him a traitor,[27] but on grounds eked out by roman law subjected his sureties in costs to his accuser--said costs including the handsome fee of 100s. and twelve yards of scarlet cloth to the lawyer adam of usk.[28] in all features save perhaps that of the actual presence of the body in the trial, warrant can be found for the scottish practice in roman law. the offence of "majesty," or high treason, formed an exception to the great humane general rule that responsibility for crime ended with the criminal's breath. under the lex julia[29] death was no defence to a charge of "majesty;" proceedings could be raised to stamp the dead man's name with the brand of treason; his kinsmen might if they chose deny and defend; but if they failed to clear him his goods were confiscated and his memory damned. there is in the annals of rome at least one instance[30] of a death-sentence of this sort pronounced after the accused was in his grave. nor was its scope confined absolutely to high treason. the church had a quiet way of appropriating tit-bits of barbaric policy for pious uses. the emperor theodosius[31] said that the inquisition for heresy ought to extend to death itself; and as in the crime of majesty, so in cases of heresy, it should be lawful to accuse the memory of the dead. the popes endorsed the analogy,[32] for heretics had goods, which sometimes were worth forfeiting. the spiritual authority however was of more moment. the church claimed the power to bind and loose even after death,[33] and a welsh twelfth century bishop did not stand alone when he carried it so far as to scourge the body of a king who had died excommunicate.[34] on the same principle dead heretics--dead before sentence of heresy--were burnt.[35] it was by a close following up of roman jurisprudence, with, peradventure, some added light from the law and practice of the church, that the french devised their _procés au cadavre_,[36] by which the memory of a dead traitor was attacked. its special application was to lesemajesty described as divine and human, the former an elastic term covering offences against god and religion. allied to this latter category, though not exactly of it, was the mortal sin of suicide. self-slaughter was so deeply abhorrent to mediæval thought as not only to be reckoned more culpable, but to call for more shameful punishment, than almost any other crime. so coupling the traitor and the self-slayer in the same detestation, the law assailed both by the same strange post-mortem process, and (by methods of reasoning which voltaire was one of the first to ridicule) consigned their souls to perdition, their memories to infamy, and their bodies to the gibbet.[37] the treatment of the suicide was peculiar in its refinements of symbolic shame. the body was, by the customary law (for example, of beaumont[38]), to be drawn to the gibbet as cruelly as possible, _pour monstrer l'experience aux aultres_. the very door-step of the house in which he lay was to be torn up, for the dead man was not worthy to pass over it. impalement, transfixture by a stake, though well enough known on the continent as a punishment of the living, became there and in england alike, the special doom of the suicide. yet the _procés au cadavre_ had no footing in english law, and although it was already in 1320 received in scotland, we shall find reason for thinking it not wholly welcome. after the trial in 1320 before alluded to, the records in scotland are silent for over two centuries, and it is not until 1540 that the process is heard of again. in that year[39] the heirs of one robert leslie were summoned to the court of parliament to hear his name and memory "delete and extinct," for certain points and crimes of lesemajesty, and his lands and goods forfeited to the king. legal authorities,[40] obviously forgetful of the fourteenth century instance, follow one another in the mistake of regarding leslie's as the first of its kind. the legality of the procedure was called in question at the time. indeed, so loud was the murmur that it can still be heard in the act passed to put it to silence. "it is murmurit," says the enactment, "that it is ane noveltie to rais summondis and move sic ane actioun aganis ane persoun that is deide, howbeit the commoun law directly providis the samin."[41] the three estates of parliament therefore on the motion of the lord advocate, declared unanimously "all in ane voce, but[42] variance or discrepance," that the cause was just and conform to common law. in another case of the following year[43] the charge and judgment were enrolled in the acts of parliament. the widow and the heir of the late james colville were summoned "to see and hear that the said deceased james, whilst he lived had committed the crime of lesemajesty." the deliverance of parliament as tribunal was by its terms an actual sentence upon the dead--that the deceased james "hes incurrit the panis of crime of lesemajeste" for which causes the court decerned "the memoure of the said umquhile james to be deleit," and his possessions confiscated to the crown. parliament which had unanimously voted the procedure well based in law, found that it was dangerous. it was necessary to restrict its scope. in 1542, it is on parliamentary record[44] that "the lordis thinkis the said act [_i.e._, of 1540], ower generale and prejudiciale to all the barions of this realme." this would never do:--an act prejudicial to the barons! so it became statute law in 1542, that it should apply only to cases of grave treason, public and notorious during the offender's life, and that prosecution for the future must be raised within five years after the traitor's death. it was a reasonable restraint, not always observed. during the reigns of mary and james vi. a number of trials occurred in which this singular process was resorted to, and in some, if not all, of which the body of the dead appeared at the bar. occasionally it was embalmed for the purpose.[45] it had been a part of the border code, prevalent on the marches of england and scotland, that an accused should, although dead, be brought to the place of judgment in person. in 1249, the marchmen of both realms had declared the law in that sense. they said that, in any plea touching life and limb, if the defendant died the body of him should be carried to the march on the day and to the place fixed between the parties, because--concludes this remarkable provision[46]--"no man can excuse himself by death." and in the end of the sixteenth century the borderers had not forgotten the tradition their forefathers had inherited in the thirteenth, for in 1597, when scotsmen and englishmen were in fulfilment of their treaty obligations presenting their promised pledges, the custom was scrupulously observed on the english side. all were there,--all, though all included one that was no more.[47] "thoughe one of the nomber were dead, yet was he brought and presented at this place." they evidently believed on the borders, which sir robert cary with some reason called[48] an "uncristned cuntry," that a man could best prove that he was dead by attendance in person. in trials for treason this principle was pushed in some instances to strange extremes. probably one underlying reason of this, at a date so late, was to make sure that no formality should be lacking to make the forfeiture effective. but the main reason one must believe lay in its being a traditional observance. in the trial in 1600, of the earl of gowrie and his brother for an alleged attempt on the king's life, the privy council on the preamble[49] that it was necessary to have their corpses kept and preserved unburied, issued an act to that effect, and the treasurer's accounts contain an entry "for transporting of the corpis of gowrie and his brother." their bodies were accordingly produced at the trial, and the sentence which pronounced them guilty of treason and lesemajesty during their lifetime, declared[50] their name, memory, and dignity extinguished, and ordained that "the dead bodeis of the saidis treatouris," should be hanged, quartered, and gibbetted. their "twa hedis," a grim diarist[51] tells, were set upon the tolbooth, "thair to stand quhill[52] the wind blaw thame away." the last case[53] in the annals, in which this revolting scottish "practick" was put into effect, occurred in 1609. robert logan, of restalrig, had been nearly three years in his grave when it was given out that he had been a party to the alleged gowrie conspiracy against king james. a process[54] was at once taken in hand to proscribe his memory and escheat his property. as death was no excuse, neither was burial; and the ghastly form was gone through of exhuming the bones for presentation at the trial. it was a case plainly within the exception provided for in the act of 1542, for the man was not "notourly" a traitor, he had died in repute of loyalty: but the crown was eager for a conviction. much incredulity had been rife with regard to the gowrie conspiracy. the evidences now adduced were--on the surface at any rate, although, perhaps, as many critics still think, on the surface only,--circumstantial and strong. the prosecution was therefore keenly pressed, and the reluctance of some of the judges overcome. a jocular jurist-commentator on these post-mortem trials, has remarked[55] that the bones of a traitor could neither plead defences, nor cross-question witnesses. but in the dawn of the seventeenth century they could turn the sympathy of the court against the charge, as it appears they did in logan's case. the proofs, however, looked overwhelming, and the forfeiture was carried without a dissenting voice from the bench--from the bench, because it was, as all scots treason-trials then were, a trial by judges only, not by judge and jury. logan's memory was declared extinct and abolished, and his possessions forfeited. the judgment, however, wreaked no vengeance on the exhumed remains. humanity was asserting itself even in the trial of the dead, and that institution itself was doomed. although in disuse ever after, it did not disappear from the theory of law until 1708, when the act 7 anne, chapter 21, prescribing jury-trial for treason, assimilated the scots law on the subject to that of england, and thus brought to an unregretted end one of the most gruesome of legal traditions. island laws. by cuming walters. a very curious and interesting phase of self-government is that which is supplied by the independent legal system established in various small islands in the united kingdom. it is amusing to notice these little communities on rocky islets tenaciously preserving their ancient privileges, and revelling in the knowledge that they have a code of their own by no means in harmony with the statute law of the country of which they are an insignificant part. the tribunals and the legal processes in the channel islands, in the scilly islands, in the isle of man, and even in some of the smaller islands round the english coast, differ entirely from those established in the motherland; and any suggestion of change is warmly resented. in many cases it has not, of course, been worth while to insist on reform, inasmuch as the islands are inhabited only by a few families, who may be left in peace to settle their own differences if any occur. there are a great many scattered islets about the sinuous line of irish coast, very few of which are ever visited by strangers. the conditions of life in these isolated places are seldom investigated, and yet we find there are some remarkable survivals of old customs and relics of ancient laws. the people are independent, because they feel they are totally separated from the mainland, and possess neither the means nor the desire to cross over to it. they are in many respects a race by themselves, and their attachment to their little homes of rock is such that one of their severest punishments for offenders is to transport them to ireland. such an island is raghlin, or rathlin, six miles distant from the north-west of antrim, but might be six hundred miles, judging by the slight intercourse the handful of inhabitants has with the larger world. another such island is tory, ten miles from the donegal coast, where up to a few years ago the dwellers were unacquainted with any other law than that of the brehon code. a visitor in 1834 found them choosing their own judge, and yielding ready obedience to mandates "issued from a throne of turf." in this case, and in the case of the cape clear islanders, it was found that the threat of banishment to the mainland was severe enough to prevent serious crime. these feelings probably have been modified in more recent times, yet the intensity of the attachment of islanders to their native rock is one of the ineradicable characteristics which account for the sturdy independence manifested in their laws and customs. their little homes are miniature worlds which they prefer to govern themselves in their own way. we may take the scillies as a favourable example, where the natives cling to the system of civil government by twelve principal inhabitants forming a court presided over by a military officer. the court is held every month, and it has jurisdiction in civil suits and minor causes. the sheriff for cornwall has, or, at all events, had, no jurisdiction in the islands, though persons prosecuted for felonies (which are extremely rare) have to be relegated to the assizes at launceston. the patriarchal system has always been much in evidence in the small scotch islands, which, for the most part, are the possessions of the descendants of feudal chieftains. dr. johnson adverted to this fact on the occasion of his famous journey in the north:--"many of the smaller islands have no legal officers within them. i once asked, if a crime should be committed, by what authority the offender could be seized, and was told that the laird would exert his right; a right which he must now usurp, but which merely necessity must vindicate, and which is therefore yet exercised in lower degrees by some of the proprietors when legal process cannot be obtained." but after observing how the system operated, dr. johnson freely admitted that when the lairds were men of knowledge and virtue, the convenience of a domestic judicature was great. owing to the remoteness of some of the islands and the difficulty of gaining access to others, it was scarcely possible to bring them under the common law, and we find that in some instances the proprietors were allowed to act as magistrates by the lord-lieutenant's commission. some of the old lairds had a very effective but unjudicial method of enforcing their laws. lord seaforth, high chief of kintail, was anxious to abolish a very odious custom of woman-servitude which prevailed in the island of lewis. the men were wont to use the women as cattle, compelling them to draw boats like horses, and, among other things, to carry men across the deep and dangerous fords on their backs. this practice greatly disgusted lord seaforth, who found, however, that it was one particularly hard to check. he arrived one day on horseback at a stream which a peasant was contentedly crossing, mounted on a woman's shoulders. when the middle of the stream was reached, the laird urged his horse forward, and came up with the couple, when by vigorously laying his whip about the back of the man, he compelled him to dismount, and wade as best he could to the opposite bank. this practical indication of the laird's wishes aided considerably in producing a change. the scotch islanders are a law-abiding people, and patriarchal government sufficed. it was recorded of the inhabitants of skye that, during a period of unusual distress and semi-starvation, not a single sheep was stolen. so keen is the sense of propriety in that island that a whole family has been known to slink away, unable to bear the disgrace brought upon them by an individual delinquent. orkney and shetland once possessed all the characteristics of a separate kingdom, the laws of no other countries being imposed upon them. there was none to dispute the laird's right, and legal administration was entirely in his hands, except for the period that the islands were placed under episcopal rule. it is worth noting that the most famous of the governing bishops, robert reid (_tempus_ 1540), also filled the high office of president of the court of session at edinburgh, and he and his successors are said to have ruled with conspicuous mildness and equity. we may now turn to one or two english islands before devoting attention to the most important examples of all--those supplied by the isle of man and the channel islands. the isle of wight is only regarded as "separate" from hampshire for one legal purpose, so far as i have been able to ascertain. it is part of the "county of southampton" for all purposes except the land-tax payment: for this it has a separate liability. but the land-tax divisions are the most irregular, and the least uniform of any legal divisions in the country, and it is therefore not surprising that the isle of wight should in this respect be subject to peculiar usage. purbeck is one of those "isles" in england which now depend more upon tradition for their designation, than natural accordance with the geographical definition. what is remarkable is that these "isles"--such as the isle of purbeck, the isle of ely, the isle of glastonbury, and the isle of meare--nearly all have certain well-established and recognised laws of their own for the little communities which dwell within their borders. the quarrymen of purbeck consider themselves a race apart, and their guild is one of the closest and strictest character. their homage is paid exclusively to the lord of the manor, and the "marblers" claim to have received a special charter from king edward. on shrove tuesday they elect their officers, and celebrate the occasion by kicking a football round the boundaries. one ancient custom observed on these occasions is to carry a pound of pepper to the lord of the manor, as an acknowledgement to him in respect to a "right of way." until comparatively recent times the government of the island was patriarchal in character. the isle of glastonbury had its "house of twelve hides" for the trial of petty cases in the locality, and tradition reports that unusually large dungeons were prepared for the immuring of those who offended in the renowned avalonian isle. the isle of man, when subject to the kings of norway, was a subordinate feudatory kingdom. it afterwards came under the dominion of the english kings, john and henry iii., but passed afterwards to the scotch. henry iv. eventually claimed the little isle, and disposed of it to the earl of northumberland, but upon this famous nobleman's attainder it went to sir john de stanley. its government seemed destined to be unsettled, however, and though the title of king was renounced by the possessors of the land, they maintained supreme and sovereign authority as to legal process. in the isle of man no english writ could be served, and as a result it became infested with smugglers and outlaws. this was unsatisfactory, and, in 1765, the interest of the proprietor was purchased, in order that the island should be subject to the regulations of the british excise and customs. according to blackstone, than whom there could be no greater authority, the isle of man is "a distinct territory from england, and is not governed by our laws; neither doth an act of parliament extend to it unless it be particularly named therein." it is consequently a convenient refuge for debtors and outlaws, while its own roundabout and antiquated methods of procedure have been found to favour the criminal rather than to aid prosecutors and complainants. perhaps this was never more vividly illustrated than in the recent case of the murderer cooper, who profited by the cumbrous and lenient processes of manx law to the extent of getting an atrocious crime reduced to manslaughter. the laws have often been amended. prior to 1417 they were "locked up in the breasts of the deemsters," but sir john stanley found that so much injustice was being done under the pretence of law, that he ordered a promulgation to be made. but "breast laws" continued to be administered for another two centuries, until lord strange, in 1636, commanded that the deemsters should "set down in writing, and certify what these breast laws are." in 1777, and also in 1813, the laws of the island were again amended, and every criminal was allowed three separate and distinct trials before different bodies. first the high bailiff hears his case, then the deemster and six jurymen, and, thirdly, if he has been committed for trial, he is brought before the governor and the deemsters. by the time the case gets to the final court it has usually been "whittled down" to the smallest possible proportions, and doubts have often been raised whether justice is not marred by misplaced and unwarranted lenity. another strange practice is that the manx advocates combine the parts of barrister and attorney. the law is hard upon debtors, who can be lodged as prisoners in castle rushen, if it is suspected that they are about to leave the island; but there are no county courts. on the other hand, there are courts of law of almost bewildering variety--the chancery court, the admiralty, the general gaol delivery, the exchequer, the ecclesiastical, the common law, the two deemsters' courts for the north and south of the island, the seneschal's court, the consistorial, the licensing, and the high bailiff's. each sheading, or subdivision, has its own coroner or sheriff, who can appoint a "lockman" as his deputy; and each parish (there are seventeen) has its own captain and a "sumner," whose duty in old times was to keep order in church and "beat all the doggs." manx law had, and perhaps to some extent still has, a similar reputation either for allowing criminals in the island to escape easily, or for permitting english criminals to remain unpunished; hence the old ribald verse which represents the devil singing- "that little spot i cannot spare, for all my choicest friends are there." the deemster's oath is a curiosity in itself:--"i do swear that i will execute the laws of the isle justly betwixt party and party as indifferently as the herring's backbone doth lie in the midst of the fish." formerly the elective house of keys possessed judicial as well as legislative functions, but this power was taken from it by the act of 1866. laws are initiated in the council and the tynwald court, which promulgates them, consists of the members of the council, and the house of keys, who unite for the occasion. tynwald day as described by mr. hall caine is an interesting, historic, but not an impressive ceremony. a thousand years ago the norsemen established a form of government on the island, and every fifth of july the manxman has his open-air parliament for the promulgation of laws. but it is a gala day rather than a day of business. "reluctantly i admit," writes mr. hall caine, "that the proceedings were, in themselves, long, tiresome, ineffectual, formless, unimpressive, and unpicturesque. the senior deemster, the amiable and venerable sir wm. drinkwater, read the titles of the new laws in english. then the coroner of the premier sheading, glenfaba, recited the same titles in manx. hardly anybody heard them; hardly anybody listened." the channel islands were part of the duchy of normandy, and their laws are mostly the ducal customs as set forth in an ancient book known as "le grand coustumier." acts of the english parliament do not apply to these islands unless specifically mentioned, and all causes are determined by their own courts and officers. in mr. ansted's standard work on the channel islands (revised and edited by e. toulmin nicolle, 1893), a long chapter is devoted to the whole subject, and it is so complete and well expressed that i venture without much alteration of phraseology to summarise its leading points. jersey and guernsey have diverged greatly from each other in their legal customs, and it is also curious to find that each of the smaller islands possesses its own particular constitutions and courts. the rights and customs of the "states," which are an outcome of the mediæval royal court, have constantly undergone modification and have been remodelled, but they retain many of the ancient characteristics. the bailiff (_bailli_), or chief magistrate, is the first civil officer in each island, and usually retains his office for life. he presides at the royal court, takes the opinions of the elected jurats, and when their voices are equal has a casting vote both in civil and criminal cases. the bailiff is not required either in jersey or guernsey to have had a legal education. he is appointed by the crown, but has usually held some position at the island bar. formerly the advocates practising in the court of jersey were nominated by the bailiff, and were limited to six in number. in 1860, however, the bar was thrown open to every british subject who had been ten years resident in the island, and who was qualified by reason of being a member of the english bar, having taken a law degree at a french university, and having passed an examination in the island. in guernsey the advocates are also notaries, and frequently hold agencies. the judicial and legislative powers in jersey are to some extent separate, but in guernsey they are intimately associated--a fact which accounts for much of the difference in custom in the two islands. the ancient norman law contained in "le grand coustumier" dates back to the thirteenth century, was badly revised in the time of queen elizabeth, and became the code. trial by jury was established in 1786, and the laws on the subject have undergone considerable change. there is a committing magistrate, and the trial takes place at the criminal assizes of which there are six in the year. the jury numbers twenty-four; if twenty agree, the verdict is taken; if less than twenty the prisoner is set free. minor offences are referred to a court of correctional police presided over by a magistrate who is independent of the royal court. the same magistrate presides over the court for the recovery of small debts, and there is no appeal from his decision. then there are subsidiary courts for various police purposes, while the court of héritage entertains suits regarding real estate. the arbitrary operation of these courts may have very evil results, especially for strangers who are unlearned in the peculiarities of jersey law. i find a striking example of this in a magazine of june 15th, 1861, in which a hard experience is detailed with comments which appear to be fully justified by the circumstances. the writer says:-"before leaving england i had had a serious quarrel with a former friend and medical attendant, and no long time elapsed after our arrival in the island, before this gentleman sent me in a bill of monstrous proportions--a true 'compte d'apothecaire' as the french express it. at that time i was quite ignorant of the singular constitution of jersey law, and how it placed me in the power of any man who chose to sue me whether i owed him money or not. i wrote to the doctor, refusing to pay the full amount of his claim, and referring him to a solicitor in london. he was, however, better acquainted with the jersey law than myself, as the result will show. here, before proceeding with my story, i will enter into some explanation of the law of debtor and creditor as it exists in jersey. this law enables the creditor to enforce his demands summarily, depriving the party sued of his liberty, and leaving him in gaol till the costs of his imprisonment have swelled the amount to be paid: and further, supposing the defendant ultimately gains his suit, and proves his non-liability, no damages for false imprisonment are obtainable. the law leaves him no remedy, for the plaintiff makes no affidavit; and a simple letter from england, requesting a jersey advocate to enforce payment of a claim, is enough to cast the defendant at once into prison, prior to any judicial investigation into the merits of his case. "thus, in jersey, every man (unless he be a landed proprietor) is at the mercy of every other man, both in the island and out of it. in short, one man can arrest another simply by drawing up an imaginary account on a common bit of paper, and handing it to the nearest lawyer, who will send his clerk with the sheriff's man and imprison the unfortunate victim in default of immediate payment. what is worse still, an arrest can be carried into effect, by means of a simple letter sent through the post. the exception in favour of land-owners of course includes the owners of house property, an exception which mostly benefits jersey-men, as few but natives possess property in the island. it is only a proprietor who must be sued _before_ he can be imprisoned. if the jersey laws confined the persons merely of strangers sued by the inhabitants of the island, in the arbitrary manner described, the justice of such a practice might still be defended on the plea of preventing them from leaving the island; but no excuse can be found when the jersey law is made an instrument in the hands of strangers, living out of the jurisdiction of the island, and when it is used to enforce payment of debts incurred in another place, and in which no inhabitant of the island is interested, and when (as sometimes happens) it is employed as a means of extortion. in the first case it can be urged that, at least, it gives protection to the islander, which may be all proper enough, though the system is liable to abuse. in the second, the injustice and folly of the law is flagrant. by what right or reason ought the jersey code, without previous inquiry, to deprive one man of his liberty at the demand of another, when both are strangers, and when the dispute relates to matters wholly beyond its pale, and in reference to which it has no means of obtaining information on oath? yet such is the case, and thus the jersey law is converted into a mere tool of iniquity and oppression. in speaking of this strange anomaly in jersey law, i am not referring to bills of exchange, or to securities of any sort, but merely to simple debts, free from any acknowledgment or signature whatever. in any other court, such claims would not be entertained for a moment. surely the law is barbarous enough for the people of jersey, without its consequences being extended beyond its circumference. but, as matters stand at present, the case stands thus: a and b fall out together. now b is a rogue. they go to law together, and b demands of a more than he is entitled to. the courts in england are about to decide upon the merits of the case. meanwhile b learns that a is gone to jersey for a short time on business, perhaps connected with this very affair, such, for instance, as looking up an important witness. what does b do? he immediately sends off a letter enclosing his little account to a jersey lawyer, instructing him to demand payment or lock up a forthwith. the lawyer obeys, of course; a storms--protests--all in vain. he is incarcerated, and is told he may explain as much as he likes afterwards; but, in the meantime, must go to prison, or _pay_. at last poor a, whose liberty is important to him, wearied with the delays which it is the interest of the jersey lawyers to raise in his suit for judgment, pays the demand into court (au greffe) to be adjudicated on--costs of law, costs of imprisonment and all. the latter item includes 10s. every time the prison door is opened to let him pass on his way to court--a journey he has too often to perform without much approach to a _dénoûment_, and whither he is obliged to go under escort like a criminal; and this process is repeated several times, without the cause even being called on for hearing. worst of all, when a comes out, he has to decide upon the merits of the case. meanwhile no remedy against b, who, of course, being satisfied, withdraws his suit at home." another seeming anomalous process may be cited. an appeal lies from some of the small courts to the full court, or _nombre supérieur_, but the jurats who sit in the court of first instance are not debarred from sitting in the full court when an appeal from their own judgment is being heard! all the proceedings are carried on in the french language, which is again extremely inconvenient for the english residents. the bailiff comments on the evidence and on the arguments of the pleaders, collects the opinion of the jurats, and delivers judgment. in guernsey the decisions are given in private. "pleadings in these courts are very simple," says mr. ansted. "the plaintiff must serve on the defendant a summons or declaration, setting forth the nature of his claim, and in some cases the reasons on which it is grounded are added. if not sufficiently definite the declaration is sent back by the court for amendment. if the defendant means to plead any objections by way of demurrer or special plea, these are at once heard and disposed of. if the parties join issue on the merits of the case, the court hears the parties, or their counsel, and decides. if the case be intricate the parties are sometimes sent before the greffier--in guernsey before one of the jurats,--who reports, condensing the matter in dispute, and presenting the points to the court for decision." trial by jury does not exist in guernsey. the court at alderney is subordinate to that of guernsey. the jurisdiction in matters of correctional police is final where the offence can be punished by a month's imprisonment or a fine not exceeding £5; otherwise it is referred to guernsey for trial. the court of sark, which has undergone many strange vicissitudes since its institution in 1579, consists of the seneschal, or judge, the prévôt and the greffier, all appointed by the feudal lord, or seigneur. the seneschal is an absolute authority in small cases, but his right of punishment is limited to the narrow bounds of inflicting a fine of about four shillings, and of sentencing to three days' imprisonment. all cases demanding severer treatment are relegated to the guernsey courts. enough has been said to show that mr. ansted was justified in declaring that though the islanders were unfitted by their habits and education for any radical change in their peculiar institutions, yet "the practice of the law courts both in jersey and guernsey has long been felt to be in many cases cumbrous, not to say objectionable. indeed, where so much that is personal interferes in the administration of justice, and where personal and family influence cannot but be felt, it is not astonishing that reasonable complaints are sometimes heard." three times during the present century royal commissions have enquired into jersey law, but their recommendations have been systematically ignored. no remedies have been carried out, and the islanders cling with extraordinary pertinacity to customs which are notoriously abused and to priveleges which are opposed to fair-dealing. the channel islands and the isle of man are standing evidence of the danger incurred by such independence of legal authority as they have hitherto been permitted to enjoy. the little inns of court. the origin of the decadent institutions located in certain grim and dreary-looking piles of building dotting the district of the inns of court proper, and known as the little inns of court, is involved in considerable obscurity. they appear to have originally held a similar position to the great seats of legal education as the halls of oxford and cambridge do to the universities. but at the present time their relation to the inns of court proper is not very clear, and the uses they serve, otherwise than as residential chambers, are just as hard to discover. this state of mistiness concerning them has existed so long that no one now seems to know anything about them, and the evidence taken more than forty years ago by a royal commission did so little to clear away the dust and cobwebs hanging about them that they still remain, in the words of lord dundreary, "things that no fellow can understand." lyon's inn has since that time been swept away to make room for the new courts of law, without any person evincing the smallest interest in its fate. concerning this institution all that could be learned by the royal commission was contained in the evidence of timothy tyrrell, who "believed" that it consisted of members or "ancients," he could not say which; he believed the terms were synonymous. there were then only himself and one other, and within his recollection there had never been more than five, and they had nothing to do beyond receiving the rents of the chambers. there were no students, and the only payment made on account of legal instruction was a sum of £7 13s. 4d. paid to the society of the inner temple for a reader; but there had been no reader since 1832. he had heard his father say that the reader "burlesqued the things so greatly" that the ancients were disgusted, and would not have another. there was a hall, but it was used only by a debating society; and there was a kitchen attached to it, but he had never heard of a library. new inn appears to have been somewhat more alive than lyon's, though it does not seem to have done any more to advance the cause of legal education. the property is held under the society of the middle temple, by a lease of three hundred years from 1744, at a rent of four pounds a year. among the stipulations of the lease is one allowing the lessors to hold lectures in the hall, but none had been held since 1846, in consequence, it was believed, of the middle temple ceasing to send a reader. the lectures never numbered more than five or six in a year; and there is now no provision of any kind for legal education. samuel brown jackson, who represented the inn before the royal commission, said he knew nothing concerning any ancient deeds or documents that would throw any light on the original constitution and functions of the body. if any there were, he "supposed" they were in the custody of the treasurer. the only source of income was the rents of chambers, which then amounted to between eighteen and nineteen hundred pounds a year; and the ancients have no duties beyond the administration of the funds. concerning the origin of clement's inn, thomas gregory, the steward of the society, was unable to afford full information, but he had seen papers dating back to 1677, when there was a conveyance by lord clare to one killett, followed by a chancery suit between the latter and the principal and ancients of the society, which resulted in a decree under which the property so conveyed became vested in the inn. some of the papers relating to the inn had been lost by fire, and "some of them," said the witness, "we can't read." the inn, he believed, was formerly a monastery, and took its name from st. clement. it had once been in connection with the inner temple, but he could find no papers showing what were the relations between the two societies, "except," he added, "that a reader comes once a term, but that was dropped for twenty years--i think till about two or three years ago, and then we applied to them ourselves, and they knew nothing at all about it; the under-treasurer said he did not know anything about the reader, and had forgotten all about it." it was the custom for the inner temple to submit three names to the ancients; and, said the witness, "we chose one; but then they said that the gentleman was out of town, or away, and that there was no time to appoint another." but no great loss seems to have resulted thereby to the cause of legal education, for it appears that all a reader had ever done was to explain some recent act of parliament to the ancients and commoners, there being no students. the inn had no library and no chapel, but as a substitute for the latter had three pews in the neighbouring church of st. clement, and also a vault, in which, said the witness, "the principals or ancients may be buried if they wish it." some remarkable evidence was given concerning staples inn, and the more remarkable for being given by edward rowland pickering, the author of a book on the subject, which publication one of the commissioners had before him while the witness was under examination. "you state here," said the commissioner, "that in the reign of henry v., or before, the society probably became an inn of chancery, and that it is a society still possessing the manuscripts of its orders and constitutions." "i am afraid," replied the witness, "that the manuscript is lost. the principal has a set of chambers which were burnt down, and his servant and two children were burnt to death, seventy years ago; and i rather think that these manuscripts might be lost." where the learned historian of the inn had obtained the materials for that work is a question which he does not appear to have been in a position to answer; for when asked whether he knew of any trace of a connection between the society and an inn of court, he replied, "certainly, i should say not. it is sixty years since i was there, boy and all." a very strange answer considering the statement in his book. during the sixty years he had been connected or acquainted with the society, he had never heard of the existence of a reader, or of any association of the inn with legal education or legal pursuits. the only connection claimed for the inn by the principal, andrew snape thorndike, was that, when a serjeant was called from gray's inn, that society invited the members of staples inn to breakfast. there is a singular provision respecting the tenure of chambers in this inn by the ancients. "a person," said this witness, "holds them for his own life, and though he may be seventy years of age, if he can come into the hall, he may surrender them to a very young man, and if that young man should live he may surrender them again at the same age." if a surrender is not made, the chambers revert to the society. barnard's inn is a very old one, and the property has been held on lease from the dean and chapter of lincoln for more than three hundred years. the society consists of a principal, nine ancients, and five companions, which latter are chosen by the ancients; but we fail to gather from the evidence of charles edward hunt, treasurer and secretary of the inn, by what principles the ancients are guided in the selection. we learn, however, that applications for admission by solicitors are not allowed. such a thing had occurred once, but it was as long ago as 1827, and "of course," said the witness, "we refused him, and he applied to the court, and after some difficulty he got a rule _nisi_ for a mandamus. it came on to be tried before lord tenterden, and lord tenterden said it could not be granted; that we were a voluntary association, and the court had no jurisdiction." the applicant seems to have based his claim on the ground that barnard's was an inn of chancery, and that, as a solicitor, he had a right to be admitted. the matter was scarcely worth contention, as the privileges of the companions are confined to dining in hall and the chance of being made an ancient, that favoured grade being entitled to "their dinners and some little fees." the books of the society showed no trace of there ever having been any students of law connected with the inn. "the oldest thing i find," said the witness, "is that a reader came occasionally from gray's inn to read; but what he read about, or who paid him, there is no minute whatever." he did not know when a reader last came from gray's inn; he thought it was about two hundred years ago. it only remains to be told of barnard's inn that it has not even a library; there had been a few books at one time, the witness told the commission, but they were sold as useless! concerning the remaining little inns--clifford's, symond's, and furnival's--no evidence was taken. they appear to be merely residential chambers, much the same as some of those concerning which we have information in the report of the royal commission and the evidence given before it, and the chambers are far from being used exclusively by members of the legal profession. nearly sixty years ago the present writer found a retired army officer occupying chambers in clifford's, and on a later occasion made at symond's inn, the acquaintance of a curate who resided there with his wife and a young family! concerning furnival's inn, it was incidentally stated by michael doyle, who represented lincoln's inn before the royal commission, that the latter society received £576 a year under a lease of the former property granted to the late henry peto for ninety-nine years, £500 being for rent, and the remainder in lieu of land tax. the witness was, however, unable to give any information as to the manner in which, or the date when, the property was acquired by lincoln's inn. the inquiry by the royal commission resulted in the recommendation of some very important changes in the constitution of the little inns of court and the administration of the several properties; but these, we learn, have been modified so much in their adoption as to have been of very little value. the societies have long outlived the purposes for which they were instituted, though their principals and officials seem to attach considerable importance to their continued existence. it is probable, however, that their _raison d'étre_ being gone, they will all sooner or later go the way of lyon's inn, and become things of the past. obiter. by george neilson. the claims of the legal profession to culture were cleverly belittled by burns, when he made the new brig of ayr wax sarcastic over the town councillors of the burgh:- "men wha grew wise priggin owre hops an' raisins, or gathered lib'ral views in bonds and seisins." bonds and seisins are certainly not the happiest intellectual feeding ground. "i assure you," said john riddell, a great peerage antiquary, "that to spend one's time in seeking for a name or a date in a bit of crabbed old writing does not improve the reasoning powers." riddell was a keen critic of cosmo innes, who subsequently had the happiness of passing the comment upon riddell's observation that "perhaps it is not in _reasoning_ that mr. riddell excels." yet the annals of the law shew many splendid examples of the union of close textual study of manuscript, with an enlarged outlook on first principles and with keen critical insight. perhaps madox was a more permanently serviceable scholar than selden. one can see from coke's margins, his infinite superiority to bacon in exact knowledge at first hand of older english law. but when all is said, we could have done much better without coke and madox than without bacon or selden. it is delightful to be able to appeal to chaucer for perhaps the most emphatic compliment to law, in respect to its capacity for literature, that it has ever received. amongst all the canterbury pilgrims, there was no weightier personage than the man of law:- "nowher so bisy a man as he ther nas, and yet he semed bisier than he was. in termes hadde he caas and domes alle that from the tyme of king william were falle, therto he coude endyte and make a thing ther could no wight pinche at his wryting, and every statut coude he pleyn by rote." yet it was this learned and successful counsel, alone of the party, who knew the poet's works through and through, and had the list of them at his finger-ends. good master chaucer for this touch we offer hearty thanks! was it in herrick's mind when he penned his fine tribute to selden? "i, who have favoured many, come to be graced, now at last, or glorified by thee." * * * * * wits and poets have had many hard things to say in jest and in earnest about the legal profession and its work. herrick bracketed law and lawyers with diseases and doctors, in a fashion hinting that the relation of cause and effect existed between both pairs:- "as many laws and lawyers do express, nought but a kingdom's ill-affectedness. even so those streets and houses do but show store of diseases where physicians flow." * * * * * it was an old story this linking of the practitioners of law and medicine in one yoke of abuse. the reason given for both categories in early satire is sufficiently curious. it was because they took fees! walter map declared the cistercian creed to be that no man could serve god without mammon. ancient satire equally objected to the service of man, either legally or medically, under these conditions. "the romaunt of the rose" has the traditional refrain of other strictures in verse, when it declares that "physiciens and advocates, gon right by the same yates, _yates, gates_ they selle hir science for winning. _winning, gain_ * * * * * for they nil in no maner gree _no kind of good will_ do right nought for charitee." the same idea, precisely, finds voice in the poem attributed to walter map, wherein the doctor and the lawyer come together under the lash, because no hope can be based upon either of them unless there be money in the case. "but if the marvellous man see coin, the very worst disease is quite curable, the very falsest cause just, praiseworthy, pious, true, and pleasing to god." perhaps these ancient sarcasms were keener on the leech than the lawyer. "the romaunt of the rose" goes so far as to say that if the physicians had their way of it, "everiche man shulde be seke, and though they dye, they set not a leke after: whan they the gold have take ful litel care for hem they make. they wolde that fourty were seke at onis! ye, two hundred in flesh and bonis! and yit two thousand as i gesse for to encresen her richesse." * * * * * no doubt the men of medicine would have been much more vulnerable on another line, for it was no satirist but a learned medical professor, arnauld de villeneuve, who, in the beginning of the fourteenth century, advised his students as follows:--"the seventh precaution," said he, "is of a general application. suppose that you cannot understand the case of your patient, say to him with assurance that he hath an obstruction of the liver." no legal professor surely was ever guilty of the indiscretion of _saying_ such a thing as this! * * * * * the ineradicable public prejudice against legal charges as flagrantly exorbitant is only a modified form of an older idea exemplified above that lawyers should have no fees at all. and as to this day the plain man has never fully reconciled himself to the doctrine that the lawyer is only an agent, and not called upon to sit in the first instance in judgment on his client, so in the past the professional defence of a criminal appeared a very venal transaction. "thow i have a man i-slawe, and forfetyd the kynges lawe i sal fyndyn a man of lawe wyl takyn myn peny and let me goo." * * * * * how reprehensible a thing to take fees was long reckoned admits of curious illustration. "before the end of the thirteenth century," says that never-failing authority, pollock and maitland's "history of english law," "there already exists a legal profession, a class of men who make money by representing litigants before the courts and by giving legal advice. the evolution of this class has been slow, for it has been withstood by certain ancient principles." amongst these retarding influences lay the half-religious scruple about the propriety of payment--men as usual swallowing the camel first and straining at the gnat afterwards. of course the subject had to be illuminated by monkish tales and death-bed repentances. there was, according to the carlisle friar who penned the "the chronicle of lanercost,"--writing under the year 1288,--a young clerk in the diocese of glasgow, whose mind "was given rather to the court of the rich than to the cure of souls. he was called adam urri, and was laically learned in the laic laws, disregarding the commands of god against the praecorialia [so in the printed text, but, query, praetorialia?] of ulpian. he used the statutes of the emperor in litigating causes, for payment of money. but when he had grown old and famous in this his wickedness, and was striving by his astuteness to entangle the affairs of a poor little widow, the divine mercy laid hold on him, assailing his body with sudden infirmity, and bringing his mind to plead (_enarraret_) more for another life." condemning utterly the lawyer's court, he turned over a new leaf, predicted the day of his own death, and died punctually conform to the prophecy, leaving an example unctuously used by the friar to teach future generations "how wide was the gulf betwixt the service of god and the vanity of this world." we shall not be far wrong in regarding, as of more historic interest, the indication of the immorality of fees, and the important reference to ulpian as an authority in the _forum causidicorum_ of thirteenth century scotland. * * * * * amongst the amiable conceptions of the middle age was the notion that the evil one often manifested a particular zeal against sin. he was regarded with a different eye from that with which we regard him, and he rewarded faith with actual appearances such as only spiritualists can now-a-days command. some of them were not very engaging, however praiseworthy may have been their object and occasion. simeon of durham, an eminently respectable contemporary author, wrote of the death of king william rufus in the year 1100 that the popular voice considered the wandering flight of tyrell's arrow a token of the "virtue and vengeance of god." and he added that about that time the devil had frequently shewn himself in the woods "and no wonder, because in those days law and justice were all but silent." the logic of this _because_, not apparent on the surface, becomes less obscure when it is remembered that in the mediæval devil the character of arch-enemy is so much subordinated to that of arch-avenger. * * * * * the direct relation of not only the saints but of the deity itself to human affairs was a conception so clear to the mediæval mind that it saw nothing irreverent in a title deed being taken in the supreme name, or in marshalling "_deus omnipotens_" at the head of the list of witnesses to a charter. this anthropomorphic practice gave occasion to one of the sharpest of walter map's jokes against the cistercians. three abbots of that order petitioning on behalf of one of their number and his abbey for the restoration of certain lands by king henry ii. as having been injuriously taken away from the claimant's abbey, represented to the king in his court that for god's sake he ought to cause the lands to be restored and they assured him and gave him god himself as their guarantor (_fidejussorem_) that if he did, god would greatly increase his honour upon earth. king henry found it difficult to resist the appeal thus made to him but called the archdeacon walter map to advise. this he did well-knowing that this counsellor did not love the cistercians, and that he might thus find a creditable way out of a tight corner. the archdeacon was equal to the occasion. "my lord," said he to the king, "they offer you a guarantor; you should hear their guarantor speak for himself." "by the eyes of god," replied henry, "it is just and conform to reason that guarantors themselves should be heard upon the matter of their guarantee." then rising with a gentle smile (not a grin, expressly says giraldus cambrensis) the shrewd monarch retired leaving the disappointed abbots covered with confusion. * * * * * of the many ties between literature and law, one, not by any means the least interesting on the list, is the quantity of legal citations, phrases, metaphors and analogies which got swept into the wide nets of the poets. amongst such scraps there are few so successful and still fewer so pathetic as one in which a metrical historian, drawing near the close, both of his days and his chronicle, figured himself as summoned on short _induciæ_ at the instance of old age to appear at a court to answer serious charges, where no help was for him save through grace and the virgin as his advocate. elde me maistreis wyth hir brevis, _elde, age_ ilke day me sare aggrevis, _brevis, writ_ scho has me maid monitioune _ilke, each_ to se for a conclusioune _quhilk, which_ the quhilk behovis to be of det; _of det, of right_ quhat term of tyme of that be set i can wyt it be na way, _wyt, know_ bot weill i wate on schort delay at a court i mon appeire fell accusationis thare til here quhare na help thare is bot grace. _bot, without_ the maikless madyn mon purchace _maikless, matchless_ that help; and to sauff my state _purchace, procure_ i haiff maid hir my advocate. _sauff, save_ androw of wyntoun's verse it must be owned was verse on the plane of a notary public, and oft the common form of legal writ supplied sorrily enough the deficiencies of his imagination. but here for once the simple dignity of the thought bore him up and carried him through. index. aberdeen, gipsies at, 175 abjuring the realm, 15 abjuration, 69 abolishing right of sanctuary, 16 adultery, penalty of, 11 africa, ordeal in, 24-25 amphitheatre, sports of, 112 an eye for an eye, 137 ancient tenures, 93-108 andrews, william, cock-fighting, 196-200 anglo-saxon church, 14 aram, eugene, 212 ashford, mary, 40-41 asyla in greece, 14 axon, w. e. a., sanctuaries, 13-22; laws relating to the gipsies, 165-178 babylonia, law of, 3-4 balance, ordeal of, 27 barbarous punishments, 132-148 barnard's inn, 263 beetles, trial of, 157 begbie, william, murder of, 210 beverley, sanctuary at, 19-20 bible law, 1-12 bible, ordeal of the, 37 bible, weighing against, 27 bier, ordeal of, 36 bird, robert, cockieleerie law, 200-204 biretta, 53 black book of hereford, 101 black parliament, 225 blood, laws written in, 135; stains, 222 boiling to death, 135 book of common prayer, abolished, 194 borough english, 104-106 breaking straws, 48; rods, 49 buccleuch, barons of, 107 bull relating to english sanctuaries, 15 bull, trial of, 150 burned alive, 134 burgess, s., bible law, 1-12 canning, elizabeth, 172-173 canon law, 187, 225 castles, a centre of power, 74 cattle stealing, 74 channel islands, laws of the, 242-243, 248-257 charges, prejudice against, 271 charles i., trial of, 182 chaucer's compliment to the law, 268 cheltenham, manor of, 94 chemical test, 220 christians, early punishment of, 137 church and ordeals, 29 clarke, sidney w., barbarous punishments, 132-144 clement's inn, 260 cock-fighting in scotland, 196-204 cockieleerie law, 200-204 cock, tried for laying an egg, 154 commonwealth law and lawyers, 178-196 continental feudalism, 77-82 conveyancing symbols, 50-51 copyhold, 49, 83 corsnedd, ordeal of, 35 commandments, breaking, 3 cross, ordeal of the 33 crown, 56 coventry acts, 142-143 court baron, 84 customary court, 84 crucifixion, 136 dead bodies brought to place of judgment, 232 debts, limitation of, 9 declining knighthood, 63-64 defilement, 8 delivery of turf or twig, 50 deposition of kings, 56 devices of the sixteenth century debtors, 161-164 divine right of kings, 193 dog carrying, 140 dogs in recognition of tenure, 101 dream evidence, 214-217 dudley lands, 64 durham sanctuary, 17, 19 escheats, 226 emma, queen, tried by ordeal, 30 englishry, law of, 70 executing gipsies, 167, 170 failure to extripate gipsies from england, 170 fatal links, 205-223 father, powers of, 9 ferocity of forest laws, 119 feudal lord, powers of the, 64 feudal system, 58-62 fining jurymen, 124 fire ordeal, 28 flagellation, 61 flags, rendering for tenure, 101 forests, great, 115-116 forgery, punishments, 142 fortune telling, 169 france, penal laws of, 140-141; trials of animals in, 149-154 frankalmoign, 103 free alms, 103-104 fridstools, 17, 20 frost, thomas, trial by jury in old times, 122-131; trials of animals, 149-160; little inns of court, 258-266 furnival's inn, 265 gavelkind, 106-107 ghosts, 217-220 gibbet, gipsy rescued from, 176 gipsies, laws relating to the, 165-178 glove, 92 godiva story, 74 grand serjeantry, 100 great civil war, 179 greenacre case, 209 hampden, john, 182 hanged, drawn, and quartered, 133-134 hasp and staple symbol, 52-53 hat as a symbol, 53-54 hawaii, ordeals in, 25 henry viii., laws against gipsies, 169 hereford fair, 101 heresy, 228 heriots, 91-92 herrick on lawyers, 269 high treason, trial for, 122-124; punishments for, 132-135 hindoos, ordeals of the, 26-27 holzmann, maria ann, murder of, 206-209 homage, 53 homicide, 11 horse, trial of, 151 hot iron, ordeal of, 27, 30, 31, 32 howlett, england, the manor and manor law, 83-94; ancient tenures, 95-108 hugh of avalon, 120 ignorance, sin of, 7 iniquities, legal, 145 irish island laws, 238-239 isle of man, laws of the, 243-247 island laws, 237-257 jews, extortions of, 73 jocular tenure, 102 king's power limited, 12 knight, service of, 96 lanercost, the chronicle of, 272 law under the feudal system, 58-82 law and medicine abused, 269-270 laws of the forest, 109-121 laws relating to the gipsies, 165-178 left-handed murder, 214 letters of iv. forms, 163 lesemajesty, crimes of, 229-231 lincoln's inn, 266 lipski, 213 literature and law, 275 little inns of court, 258-266 lords, power of, 58 lord chief justice popham, stolen by gipsies, 170 loss of right hand, 138 lyon's inn, 259 macdonald, james c., devices of the sixteenth century debtors, 161-164 magna charta, 63, 98 manchester, sanctuary at, 15, 16, 17 manor and manor law, 83-94 manor, origin of, 88 marriage in feudal times, 59 marriage laws, altering, 195 marrying to atone for violence, 64 martin, maria, 214 middle ages, ordeals of, 29 military service, 59 military punishments, 136 money raised by marriage, 72 mortal combat, 37-41 mosaic law, 3 mutilation, a favourite mode of punishment, 141-144 muswell hill murder, 213 neilson, george, on symbols, 43-57; post mortem trials, 224-236; obiter, 267-276 new inn, 259 new way of paying old debts, 163 nimrod, 111 norman forest laws, 117 oath, refusal to bear witness of, 8; of fealty, 60 on symbols, 43-57 oppression of gipsies under queen elizabeth, 171 ordeals, 24-42 palace regulations, 138-140 parricide, punishment for, 137 paul's cross, preaching at, 194 peacock, edward, laws of the forest, 109-121; commonwealth law and lawyers, 179-196 peine forte et dure, 145-148 penal code, english, 145 penn and mead, trial of, 125 persecution of gipsies, 171 plantations, gipsies sent to, 178 plays acted by gipsies, 176 pigs, trial of, 150, 151, 152, 153, 157 pillory, 142, 144 poison, 135, 138 poison, ordeal, 28 poisoning, punishment for, 135 poor laws, 9 post-mortem trials, 224-236 prejudice against gipsies, 172 protecting the church in war time, 102-103 proverb, oldest, 111 punishments under saxons, 61 quakers, trial of, 125-131 rann, ernest h., trials in superstitious ages, 22-42; fatal links, 205-223 reasoning power, 267 rebel heads on city gates, 134 refuge, cities of, 14 regicides, 134 robbing travellers in feudal times, 73-74 robert de belesone, cruel acts of, 65 robert the bruce, conspiracy, 225 rod in scotland, 49 roman empire in its glory, 114 rose tenures, 102 ruskin, jno., on coeur de lion, 72 sacrifice, laws relating to, 5-7 sacrilege, 8 sanctuaries, 13-22 scilly islands, laws of the, 239 scoggan, queen's jester, 163-164 scotch islands, laws of the, 239-242 scotland, sanctuaries of, 21-22 scott, john, of edinburgh, 161-163 scutage, 98 self-slaughter, 229 ship-money tax, 181 shaving the head for theft, 69 siamese, ordeals of the, 26 silver spear, 55 slavery, discharge from, 45 slaves, ill treatment of, 8, 10; under the saxons, 60 slaying gipsies, 175-176 sods offered at the altar, 48 spindle on the altar, 51 staff and baton, 50 staples inn, 262 star chamber, 124-125 strangulation, punishment by, 136 straws, breaking, 48 stocks, 67 switzerland, trials of animals in, 154 symond's inn, 265 thornton, abraham, 40-41 towns amerced, 70 traitors, exempted from the sanctuary, 15 treason, trials for, 233 trial by jury in old times, 122-131 trials of animals, 149-160 trials in superstitious ages, 22-42 tynwald day, 247 usury, law of, 9 villeinage, 86 violating the sanctuary, 14, 21 wager of battel, 37, 41 walters, cuming, law under the feudal system, 58-82; island laws, 237-257 wand, 49 welcoming gipsies to england, 168 westminster, sanctuary of, 20 whipping, 61; post, 67 william i., forest laws of, 118; burial of, 225 william the red, forest laws of, 119 witchcraft, 144-45 wollen industry, protection of, 144 women, free bench of, 93 working of the sanctuary system, 16, 17 footnotes: [1] this and other documents have been collected by mr. t. j. de' massinghi, whose monagraph on "sanctuaries" (stafford, 1888) is the chief source of information on the subject. [2] see andrews' "old church lore," 1891, and the authorities there cited. [3] the material facts in this paper up to this point are derived from _thevenin's textes relatifs aux institutions privées_ and _du cange art. investitura_. [4] williams' "real property law." [5] williams' "real property law." [6] southey's common place book, 4th series, 1851, p. 175. [7] chapter x., verses 8 and 9. [8] ecl. ii., line 62. [9] constitutional history of england, i. ed., vol. i., p. 289. [10] the lord chief justice, john popham, who was born in 1531, is said to have been stolen when a child by the gipsies. they disfigured him and placed on his arm a cabalistic mark. apparently it was a case of tattooing. but the story is discredited. [11] _gaújo_ is the name given by the gipsies to all strangers who are not of the romany race. [12] _edition_ 1857, vol. i., p. 77. [13] peacock. _army lists of roundheads and cavaliers_, 2nd edit., 1874, p. 21. [14] wood, _athenae oxon_, sub nom. [15] john loden gollpried's _kronyck_, vol. iv., p. 454. van der aa, _biographisch woordenboek_, sub voce. [16] carlyle, _letters and speeches of oliver cromwell_, vol. i., p. 50. [17] henry scobell, _acts and ordinances_, 1645, chapter 57. [18] "michelet's history of france," viii., ch. 1. "cheruel's dictionnaire des institutions," art. "cadavre." [19] "pollock and maitland's history of english law," ii., 60. bracton 51b, 262. [20] "lea's superstition and force" (ed. 1892), 359-70. [21] "roman de rou," ii., 9320-40. [22] "three metrical romances" (camden socy.), xxvi., 33. see "decretals of gregory," lib. ii., tit. 28, cap. 25, _qua fronte_; also "lyndwood's provinciale," p. 278. [23] "bower's scotichronicon," ii., 275. "extracta e cronicis," 150. "scalacronica," 144. [24] "robertson's index," 5, 10, 12, 19, 20, 21. [25] "rolls of parliament," ii., 335. [26] "rolls of parliament," iii., 384. [27] "rolls of parliament," iii., 459. [28] "chronicle of adam of usk," pp. 44, 45. [29] "justinian's institutes," iv., 18. "digest," xlviii., 4, 11. "code," ix., 8. [30] "tacitus," xvi., 11. [31] "code," i., 5, 4. [32] "decretals of gregory," v., 7, 10. [33] "decretals of gregory," v., 39, 28. "lea's studies in church history," 264-66. [34] "haddan and stubbs's councils," i., 393. "lea's studies," 384, 425. [35] "lea's chapters from the religious history of spain," 372, 492. [36] "cheruel's dictionnaire," and "denisart's collection de decisions," art. "lesemajeste, memoire, suicide." [37] for a curious english case of gibbetting a suicide in 1234, see "maitland's bracton's note book," 1114: compare "bracton," fo. 150. [38] "la loy de beaumont" (reims 1864), p. 241. [39] "acts of parliament, scotland," ii., 356. [40] "mackenzie's criminal law," i., 6, 21-2. "hume's law of crimes," i., 539. "pitcairn's criminal trials," ii., 278. "riddell's scottish peerages," ii., 757-58. [41] "acts parl. scot.," ii., 356. [42] but = without. [43] "acts parl. scot.," ii., 369. [44] "acts parl. scot.," ii., 415. [45] case of earl of huntly in 1562. tytler's "hist. of scotland," iii., 167. [46] "acts parl. scot.," i., 415. [47] "bain's calendar of border papers," ii., 417. [48] "border papers," ii., 711. [49] "pitcairn's crim. trials," ii., 233, 241. [50] pitcairn, ii., 167-8. "acts parl. scot.," iv., 199. [51] "birrel," quoted in "pitcairn," ii., 247. [52] _quhill_, until. [53] for an example in 1603, that of francis mowbray, see "pitcairn," ii., 406-9. [54] a full account of the trial is given in "pitcairn," ii., 276-92. [55] lord hailes quoted in "pitcairn," ii., 277. some recent books published by william andrews & co., 5, farringdon avenue, london, e.c. "valuable and interesting."--_the times._ "readable as well as instructive."--_the globe._ "a valuable addition to any library."--_derbyshire times._ the bygone series. in this series the following volumes are included, and issued at 7s. 6d. each. demy 8vo., cloth gilt. these books have been favourably reviewed in the leading critical journals of england and america. carefully written articles by recognised authorities are included on history, castles, abbeys, biography, romantic episodes, legendary lore, traditional stories, curious customs, folk-lore, etc. etc. the works are illustrated by eminent artists, and by the reproduction of quaint pictures of the olden time. bygone berkshire, edited by rev. p. h. ditchfield, m.a., f.s.a. bygone cheshire, edited by william andrews, f.r.h.s. bygone derbyshire, edited by william andrews, f.r.h.s. bygone essex, edited by william andrews, f.r.h.s. bygone england, by william andrews, f.r.h.s. bygone kent, edited by richard stead, b.a. bygone lancashire, edited by ernest axon. bygone leicestershire, edited by william andrews, f.r.h.s. bygone lincolnshire (2 vols.), edited by william andrews, f.r.h.s. bygone london, by frederick ross, f.r.h.s. bygone nottinghamshire, by william stevenson. bygone scotland, by david maxwell, c.e. bygone somersetshire, edited by cuming walters. bygone southwark, by mrs. e. boger. bygone surrey, edited by george clinch and s. w. kershaw, f.s.a. bygone warwickshire, edited by william andrews, f.r.h.s. bygone yorkshire, edited by william andrews, f.r.h.s. antiquities and curiosities of the church. edited by william andrews, f.r.h.s. _demy 8vo., 7s. 6d. numerous illustrations._ contents:--church history and historians--supernatural interference in church building--ecclesiastical symbolism in architecture--acoustic jars--crypts--heathen customs at christian feasts--fish and fasting--shrove-tide and lenten customs--wearing hats in church--the stool of repentance--cursing by bell, book, and candle--pulpits--church windows--alms-boxes and alms-dishes--old collecting boxes--gargoyles-curious vanes--people and steeple rhymes--sun-dials--jack of the clock-house--games in churchyards--circular churchyards--church and churchyard charms and cures--yew trees in churchyards. 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"a book of equal interest to artists, archæologists, architects, and the clergy has been written by the rev. g. s. tyack, upon 'the cross in ritual, architecture, and art.' although mr. tyack has restricted himself to this country, this work is sufficiently complete for its purpose, which is to show the manifold uses to which the cross, the symbol of the christian faith, has been put in christian lands. it treats of the cross in ritual, in church ornament, as a memorial of the dead, and in secular mason work; of preaching crosses, wayside and boundary crosses, well crosses, market crosses, and the cross in heraldry. mr. tyack has had the assistance of mr. william andrews, to whom he records his indebtedness for the use of his collection of works, notes, and pictures; but it is evident that this book has cost many years of research on his own part. it is copiously and well illustrated, lucidly ordered and written, and deserves to be widely known."--_yorkshire post._ "this is an exhaustive treatise on a most interesting subject, and mr. tyack has proved himself to be richly informed and fully qualified to deal with it. all lovers of ecclesiastical lore will find the volume instructive and suggestive, while the ordinary reader will be surprised to find that the cross in the churchyard or by the roadside has so many meanings and significances. mr. tyack divides his work into eight sections, beginning with the pre-christian cross, and then tracing its development, its adaptations, its special uses, and applications, and at all times bringing out clearly its symbolic purposes. we have the history of the cross in the church, of its use as an ornament, and of its use as a public and secular instrument; then we get a chapter on 'memorial crosses,' and another on 'wayside and boundary crosses.' the volume teems with facts, and it is evident that mr. tyack has made his study a labour of love, and spared no research in order, within the prescribed limits, to make his work complete. he has given us a valuable work of reference, and a very instructive and entertaining volume."--_birmingham daily gazette._ "an engrossing and instructive narrative."--_dundee advertiser._ "as a popular account of the cross in history, we do not know that a better book can be named."--_glasgow herald._ in the temple. by a barrister-at-law. _price one shilling._ this book opens with a chapter on the history of the temple. next follows an account of the knight templars. the story of the devil's own is given in a graphic manner. a sketch of christmas in the temple is included. in an entertaining manner the reader is informed how to become a templar, the manner of keeping terms is described, and lastly, the work concludes with a chapter on call parties. "amusing and interesting sketches."--_law times._ "pleasing gossip about the barristers' quarters."--_the gentlewoman._ "a pleasant little volume."--_the globe._ the red, red wine. by the rev. j. jackson wray. _crown 8vo., 330 pp. a portrait of the author and other illustrations._ _price 3s. 6d._ "this, as its name implies, is a temperance story, and is told in the lamented author's most graphic style. we have never read anything so powerful since 'danesbury house,' and this book in stern and pathetic earnestness even excels that widely-known book. it is worthy a place in every sunday school and village library; and, as the latest utterance of one whose writings are so deservedly popular, it is sure of a welcome. it should give decision to some whose views about local option are hazy."--_joyful news._ "the story is one of remarkable power."--_the temperance record._ "an excellent and interesting story."--_the temperance chronicle._ faces on the queen's highway. by flo. jackson. _elegantly bound, crown 8vo., price 2s. 6d._ though oftenest to be found in a pensive mood, the writer of this very dainty volume of sketches is always very sweet and winning. she has evidently a true artist's love of nature, and in a few lines can limn an autumn landscape full of colour, and the life which is on the down slope. and she can tell a very taking story, as witness the sketch "at the inn," and "the master of white hags," and all her characters are real, live flesh-and-blood people, who do things naturally, and give very great pleasure to the reader accordingly. miss jackson's gifts are of a very high order.--_aberdeen free press._ old church lore. by william andrews, f.r.h.s. _demy 8vo., 7s. 6d._ contents--the right of sanctuary--the romance of trial--a fight between the mayor of hull and the archbishop of york--chapels on bridges--charter horns--tho old english sunday--the easter sepulchre--st. paul's cross--cheapside cross--the biddenden maids charity--plagues and pestilences--a king curing an abbot of indigestion--the services and customs of royal oak day--marrying in a white sheet--marrying under the gallows--kissing the bride--hot ale at weddings--marrying children--the passing bell--concerning coffins--the curfew bell--curious symbols of the saints--acrobats on steeples--a carefully prepared index--illustrated. "an interesting volume."--_the scotsman._ "a worthy work on a deeply interesting subject.... we commend this book strongly."--_european mail._ "the book is eminently readable, and may be taken up at any moment with the certainty that something suggestive or entertaining will present itself."--_glasgow citizen._ "mr. andrews' book does not contain a dull page.... deserves to meet with a very warm welcome."--_yorkshire post._ a lawyer's secrets. by herbert lloyd. author of "the children of chance," etc. _price one shilling._ "mr. herbert lloyd gives us a succession of stories which may reasonably be taken to have their origin in the experience of a lawyer practicing at large in the criminal courts. it is natural that they should be of a romantic nature; but romance is not foreign to a lawyer's consulting room, so that this fact need not be charged against this lawyer's veracity.... the stories, seven in all, cover the ground of fraud and murder, inspired by the prevailing causes of crime--greed and jealousy. our lawyer is happy in having the majority of his clients the innocent victims of false charges inspired and fostered in a great measure by their own folly; but this is a natural phase of professional experience, and we are only concerned with the fact that he generally manages it as effectively in the interests of his clients as his editor does in presenting them to his audience."--_literary world._ "a volume of entertaining stories.... the book has much the same interest as a volume of detective stories, except that putting the cases in a lawyer's mouth gives them a certain freshness. it is well written, and makes a capital volume for a railway journey."--_the scotsman._ "a very entertaining volume."--_birmingham daily gazette._ california sketches new series. by o. p. fitzgerald with an introduction by bishop george f. pierce. the bearded men in rude attire, with nerves of steel and hearts of fire, the women few but fair and sweet, like shadowy visions dim and fleet, again i see, again i hear, as down the past i dimly peer, and muse o'er buried joy and pain, and tread the hills of youth again. 1883. a word. encores are usually anticlimaxes. i never did like them. yet here i am again before the public with another book of "california sketches." the kind treatment given to the former volume, of which six editions have been printed and sold; the expressed wishes of many friends who have said, give us another book; and my own impulse, have induced me to venture upon a second appearance. if much of the song is in the minor key, it had to be so: these sketches are from real life, and "all lives are tragedies." the author. nashville, september, 1881. introduction. the first issue of the "california sketches" was very popular, deservedly so. the distinguished author has prepared a second series. in this fact the reading public will rejoice. in these hooks we have the romance and prestige of fiction; the thrill of incident and adventure; the wonderful phases of society in a new country, and under the pressure of strong and peculiar excitements; human character loose from the restraints of an old civilization--a settled order of things; individuality unwarped by imitation--free, varied, independent. the materials are rich, and they are embodied in a glowing narrative. the writer himself lived amid the scenes and the people he describes, and, as a citizen, a preacher, and an editor, was an important factor among the forces destined to mold the elements which were to be formulated in the politics of the state and the enterprises of the church. a close observer, gifted with a keen discrimination and retentive memory, a decided relish for the ludicrous and the sportive, and always ready to give a religions turn to thought and conversation, he is admirably adapted to portray and recite what he saw, heard, and felt. these sketches furnish good reading for anybody. for the young they are charming, full of entertainment, and not wanting in moral instruction. they will gratify the taste of those who love to read, and, what is more important, beget the appetite for books among the dull and indifferent. he who can stimulate children and young men and women to read renders a signal service to society at large. mental growth depends much upon reading, and the fertilization of the original soil by the habit wisely directed connects vitally with the outcome and harvest of the future. dr. fitzgerald is doing good service in the work already done, and i trust the patronage of the people will encourage him to give us another and another of the same sort. at my house we all read the "california sketches"--old and young--and long for more. g. f. pierce. contents. dick the diggers the california mad-house san quentin "corralled" the reblooming the emperor norton camilla cain lone mountain newton the california politician old man lowry suicide in california father fisher jack white the rabbi my mining speculation mike reese uncle nolan buffalo jones tod robinson ah lee the climate of california after the storm bishop kavanaugh in california sanders a day winter-blossomed a virginian in california at the end dick. dick was a californian. we made his acquaintance in sonora about a month before christmas, anno domini 1855. this is the way it happened: at the request of a number of families, the lady who presided in the curious little parsonage near the church on the hill-side had started a school for little girls. the public schools might do for the boys, but were too mixed for their sisters--so they thought. boys could rough it --they were a rough set, anyway--but the girls must he raised according to the traditions of the old times and the old homes. that was the view taken of the matter then, and from that day to this the average california girl has been superior to the average california boy. the boy gets his bias from the street; the girl, from her mother at home. the boy plunges into the life that surges around him; the girl only feels the touch of its waves as they break upon the embankments of home. the boy gets more of the father; the girl gets more of the mother. this may explain their relative superiority. the school for girls was started on condition that it should be free, the proposed teacher refusing all compensation. that part of the arrangement was a failure, for at the end of the first month every little girl brought a handful of money, and laid it on the teacher's desk. it must have been a concerted matter. that quiet, unselfish woman had suddenly become a money-maker in spite of herself. (use was found for the coin in the course of events.) the school was opened with a psalm, a prayer, and a little song in which the sweet voices of the little jewish, spanish, german, irish, and american maidens united heartily. dear children! they are scattered now. some of them have died, and some of them have met with what is worse than death. there was one bright spanish girl, slender, graceful as a willow, with the fresh castilian blood mantling her cheeks, her bright eyes beaming with mischief and affection. she was a beautiful child, and her winning ways made her a pet in the little school. but surrounded as the bright, beautiful girl was, satan had a mortgage on her from her birth, and her fate was too dark and sad to be told in these pages. she inherited evil condition, and perhaps evil blood, and her evil life seemed to be inevitable. poor child of sin, whose very beauty was thy curse, let the curtain fall upon thy fate and name; we leave thee in the hands of the pitying christ, who hath said, "where little is given little will be required." little was given thee in the way of opportunity, for it was a mother's hand that bound thee with the chains of evil. among the children that came to that remarkable academy on the hill was little mary kinneth, a thin, delicate child, with mild blue eyes, flaxen hair, a peach complexion, and the blue veins on her temples that are so often the sign of delicacy of organization and the presage of early death. mike kinneth,--her father, was a drinking irishman, a good-hearted fellow when sober, but pugnacious and disposed to beat his wife when drunk. the poor woman came over to see me one day. she had been crying, and there was an ugly bruise on her cheek. "your riverence will excuse me," she said, curtseying, "but i wish you would come over and spake a word to me husband. mike's a kind, good craythur except when he is dhrinking, but then he is the very satan himself." "did he give you that bruise on your face, mrs. kinneth?" "yis; he came home last night mad with the whisky, and was breaking ivery thing in the house. i tried to stop him, and thin he bate me--o! he never did that before! my heart is broke!" here the poor woman broke down and cried, hiding her face in her apron. "little mary was asleep, and she waked up frightened and crying to see her father in such a way. seeing the child seemed to sober him a little, and he stumbled on to the bed, and fell asleep. he was always kind to the child, dhrunk or sober. and there is a good heart in him if he will only stay away from the dhrink." "would he let me talk to him?" "yis; we belong to the old church, but there is no priest here now, and the kindness your lady has shown to little mary has softened his heart to ye both. and i think he feels a little sick and ashamed this mornin', and he will listen to kind words now if iver." i went to see mike, and found him half-sick and in a penitent mood. he called me "father fitzgerald," and treated me with the utmost politeness and deference. i talked to him about little mary, and his warm irish heart opened to me at once. "she is a good child, your riverence, and shame on the father that would hurt or disgrace her!" the tears stood in mike's eyes as he spoke the words. "all the trouble comes from the whisky. why not give it up?" "by the help of god i will!" said mike, grasping my hand with energy. and he did. i confess that the result of my visit exceeded my hopes. mike kept away from the saloons, worked steadily, little mary had no lack of new shoes and neat frocks, and the kinneth family were happy in a humble way. mike always seemed glad to see me, and greeted me warmly. one morning about the last of november there was a knock at the door of the little parsonage. opening the door, there stood mrs. kinneth with a turkey under her arm. "christmas will soon be coming, and i've brought ye a turkey for your kindness to little mary and your good talk to mike. he has not touched a dhrop since the blissed day ye spake to him. will ye take the turkey, and my thanks wid it?" the turkey was politely and smilingly accepted, and mrs. kinneth went away looking mightily pleased. i extemporized a little coop for our turkey. having but little mechanical ingenuity, it was a difficult job, but it resulted more satisfactorily than did my attempt to make a door for the miniature kitchen attached to the parsonage. my object was to nail some cross-pieces on some plain boards, hang it on hinges, and fasten it on the inside by a leather strap attached to a nail. the model in my mind was, as the reader sees, of the most simple and primitive pattern. i spent all my leisure time for a week at work on that door. i spoiled the lumber, i blistered my hands, i broke several dollars' worth of carpenter's tools, which i had to pay, and--then i hired a man to make that door! this was my last effort in that line of things, excepting the turkey-coop, which was the very last. it lasted four days, at the end of which time it just gave way all over, and caved in. fortunately, it was no longer needed. our turkey would not leave us. the parsonage fare suited him, and he staid, and throve, and made friends. we named him dick. he is the hero of this sketch. dick was intelligent, sociable, and had a good appetite. he would eat any thing, from a crust of bread to the pieces of candy that the schoolgirls would give him as they passed. he became as gentle as a dog, and would answer to his name. he had the freedom of the town, and went where he pleased, returning at meal-times, and at night to roost on the western end of the kitchen-roof. he would eat from our hands, looking at us with a sort of human expression in his shiny eyes. if he were a hundred yards away, all we had to do was to go to the door and call out, "dick!" "dick!" once or twice, and here he would come, stretching his long legs, and saying, "oot," "oot," "oot" (is that the way to spell it?). he got to like going about with me. he would go with me to the post-office, to the market, and sometimes he would accompany me in a pastoral visit. dick was well known and popular. even the bad boys of the town did not throw stones at him. his ruling passion was the love of eating. he ate between meals. he ate all that was offered to him. dick was a pampered turkey, and made the most of his good luck and popularity. he was never in low spirits, and never disturbed except when a dog came about him. he disliked dogs, and seemed to distrust them. the days rolled by, and dick was fat and happy. it was the day before christmas. we had asked two bachelors to take christmas-dinner with us, having room and chairs for just two more persons. (one of our four chairs was called a stool--it had a bottom and three legs, one of which was a little shaky, and no back.) there was a constraint upon us both all day. i knew what was the matter, but said nothing. about four o'clock in the afternoon dick's mistress sat down by me, and, after a pause, remarked: "do you know that tomorrow is christmas-day?" "yes, i know it." another pause. i had nothing to say just then. "well, if--if--if any thing is to be done about that turkey, it is time it were done." "do you mean dick?" "yes," with a little quiver in her voice. "i understand you--you mean to kill him--poor dick! the only pet we ever had." she broke right down at this, and began to cry. "what is the matter here?" said our kind, energetic neighbor, mrs. t--, who came in to pay us one of her informal visits. she was from philadelphia, and, though a gifted woman, with a wide range of reading and observation of human life, was not a sentimentalist. she laughed at the weeping mistress of the parsonage, and, going to the back-door, she called out: "dick!" "dick!" dick, who was taking the air high up on the hillside, came at the call, making long strides, and sounding his "oot," "oot," "oot," which was the formula by which he expressed all his emotions, varying only the tone. dick, as he stood with outstretched neck and a look of expectation in his honest eyes, was scooped up by our neighbor, and carried off down the hill in the most summary manner. in about an hour dick was brought back. he was dressed. he was also stuffed. the diggers. the digger indian holds a low place in the scale of humanity. he is not intelligent; he is not handsome; he is not very brave. he stands near the foot of his class, and i fear he is not likely to go up any higher. it is more likely that the places that know him now will soon know him no more, for the reason that he seems readier to adopt the bad white man's whisky and diseases than the good white man's morals and religion. ethnologically he has given rise to much conflicting speculation, with which i will not trouble the gentle reader. he has been in california a long time, and he does not know that he was ever anywhere else. his pedigree does not trouble him; he is more concerned about getting something to eat. it is not because he is an agriculturist that he is called a digger, but because he grabbles for wild roots, and has a general fondness for dirt. i said he was not handsome, and when we consider his rusty, dark-brown color, his heavy features, fishy black eyes, coarse black hair, and clumsy gait, nobody will dispute the statement. but one digger is uglier than another, and an old squaw caps the climax. the first digger i ever saw was the best-looking. he had picked up a little english, and loafed around the mining-camps picking up a meal where he could get it. he called himself "captain charley," and, like a true native american, was proud of his title. if it was self-assumed, he was still following the precedent set by a vast host of captains, majors, colonels, and generals, who never wore a uniform or hurt anybody. he made his appearance at the little parsonage on the hill-side in sonora one day, and, thrusting his bare head into the door, he said: "me cappin charley," tapping his chest complacently as he spoke. returning his salutation, i waited for him to speak again. "you got grub--coche carne?" he asked, mixing his spanish and english. some food was given him, which he snatched rather eagerly, and began to eat at once. it was, evident that captain charley had not breakfasted that morning. he was a hungry indian, and when he got through his meal there was no reserve of rations in the unique repository of dishes and food which has been mentioned heretofore in these sketches. peering about the premises, captain charley made a discovery. the modest little parsonage stood on a steep incline, the upper side resting on the red gravelly earth, while the lower side was raised three or four feet from the ground. the vacant space underneath had been used by our several bachelor predecessors as a receptacle for cast-off clothing. malone, lockley, and evans, had thus disposed of their discarded apparel, and drury bond and one or two other miners had also added to the treasures that caught the eye of the inquisitive digger. it was a museum of sartorial curiosities--seedy and ripped broadcloth coats, vests, and pants, flannel mining-shirts of gay colors and of different degrees of wear and tear, linen shirts that looked like battle-flags that had been through the war, and old shoes and boots of all sorts, from the high rubber water-proofs used by miners to the ragged slippers that had adorned the feet of the lonely single parsons whose names are written above. "me take um?" asked captain charley, pointing to the treasure he had discovered. leave was given, and captain charley lost no time in taking possession of the coveted goods. he chuckled to himself as one article after another was drawn forth from the pile which seemed to be almost inexhaustible. when he had gotten all out and piled up together, it was a rare-looking sight. "mucho bueno!" exclaimed captain charley, as he proceeded to array himself in a pair of trousers. then a shirt, then a vest, and then a coat, were put on. and then another, and another, and yet another suit was donned in the same order. he was fast becoming a "big indian" indeed. we looked on and smiled, sympathizing with the evident delight of our visitor in his superabundant wardrobe. he was in full-dress, and enjoyed it. but he made a failure at one point--his feet were too large, or were not the right shape, for white men's boots or shoes. he tried several pairs, but his huge flat foot would not enter them, and finally he threw down the last one tried by him with a spanish exclamation not fit to be printed in these pages. that language is a musical one, but its oaths are very harsh in sound. a battered "stove-pipe" hat was found among the spoils turned over to captain chancy. placing it on his head jauntily, he turned to us, saying, adios, and went strutting down the street, the picture of gratified vanity. his appearance on washington street, the main thoroughfare of the place, thus gorgeously and abundantly arrayed, created a sensation. it was as good as a "show" to the jolly miners, always ready to be amused. captain charley was known to most of them, and they had a kindly feeling for the good-natured "fool injun," as one of them called him in my hearing. the next digger i noticed was of the gentler (but in this case not lovelier) sex. she was an old squaw, who was in mourning. the sign of her grief was the black adobe mud spread over her face. she sat all day motionless and speechless, gazing up into the sky. her grief was caused by the death of a child, and her sorrowful look showed that she had a mother's heart. poor, degraded creature! what were her thoughts as she sat there looking so pitifully up into the silent, far-off heavens? all the livelong day she gazed thus fixedly into the sky, taking no notice of the passersby, neither speaking, eating, nor drinking. it was a custom of the tribe, but its peculiar significance is unknown to me. it was a great night at an adjoining camp when the old chief died. it was made the occasion of a fearful orgy. dry wood and brush were gathered into a huge pile, the body of the dead chief was placed upon it, and the mass set on fire. as the flames blazed upward with a roar, the indians, several hundred in number, broke forth into wild wailings and howlings, the shrill soprano of the women rising high above the din, as they marched around the burning pyre. fresh fuel was supplied from time to time, and all night long the flames lighted up the surrounding hills which echoed with the shouts and howls of the savages. it was a touch of pandemonium. at dawn there was nothing left of the dead chief but ashes. the mourners took up their line of march toward the stanislaus river, the squaws bearing their papooses on their backs, the "bucks" leading the way. the digger believes in a future life, and in future rewards and punishments. good indians and bad indians are subjected to the same ordeal at death. each one is rewarded according to his deeds. the disembodied soul comes to a wide, turbid river, whose angry waters rush on to an unknown destination, roaring and foaming. from high banks on either side of the stream is stretched a pole smooth and small, over which he is required to walk. upon the result of this post-mortem blondinizing his fate depends. if he was in life a very good indian he goes over safely, and finds on the other side a paradise, where the skies are cloudless, the air balmy, the flowers brilliant in color and sweet in perfume, the springs many and cool, and the deer plentiful and fat. in this fair clime there are no bad indians, no briers, no snakes, no grizzly bears. such is the paradise of good diggers. the indian who was in life a mixed character, not all good or bad, but made up of both, starts across the fateful river, gets on very well until he reaches about half-way over, when his head becomes dizzy, and he tumbles into the boiling flood below. he swims for his life. (every indian on earth can swim, and he does not forget the art in the world of spirits.) buffeting the waters, he is carried swiftly down the rushing current, and at last makes the shore, to find a country which, like his former life, is a mixture of good and bad. some days are fair, and others are rainy and chilly; flowers and brambles grow together; there are some springs of water, but they are few, and not all cool and sweet; the deer are few, and shy, and lean, and grizzly bears roam the hills and valleys. this is the limbo of the moderately-wicked digger. the very bad indian, placing his feet upon the attenuated bridge of doom, makes a few steps forward, stumbles, falls into the whirling waters below, and is swept downward with fearful velocity. at last, with desperate struggles he half swims, and is half washed ashore on the same side from which he started, to find a dreary land where the sun never shines, and the cold rains always pour down from the dark skies, where the water is brackish and foul, where no flowers ever bloom, where leagues may be traversed without seeing a deer, and grizzly bears abound. this is the hell of very bad indians--and a very had one it is. the worst indians of all, at death, are transformed into grizzly bears. the digger has a good appetite, and he is not particular about his eating. he likes grasshoppers, clover, acorns, roots, and fish. the flesh of a dead mule, horse, cow, or hog, does not come amiss to him--i mean the flesh of such as die natural deaths. he eats what he can get, and all he can get. in the grasshopper season he is fat and flourishing. in the suburbs of sonora i came one day upon a lot of squaws, who were engaged in catching grasshoppers. stretched along in line, armed with thick branches of pine, they threshed the ground in front of them as they advanced, driving the grasshoppers before them in constantly increasing numbers, until the air was thick with the flying insects. their course was directed to a deep gully, or gulch, into which they fell exhausted. it was astonishing to see with what dexterity the squaws would gather them up and thrust them into a sort of covered basket; made of willow-twigs or tule-grass, while the insects would be trying to escape; but would fall back unable to rise above the sides of the gulch in which they had been entrapped. the grasshoppers are dried, or cured, for winter use. a white man who had tried them told me they were pleasant eating, having a flavor very similar to that of a good shrimp. (i was content to take his word for it.) when bishop soule was in california, in 1853, he paid a visit to a digger campoody (or village) in the calaveras hills. he was profoundly interested, and expressed an ardent desire to be instrumental in the conversion of one of these poor kin. it was yet early in the morning when the bishop and his party arrived, and the diggers were not astir, save here and there a squaw, in primitive array, who slouched lazily toward a spring of water hard by. but soon the arrival of the visitors was made known, and the bucks, squaws, and papooses, swarmed forth. they cast curious looks upon the whole party, but were specially struck with the majestic bearing of the bishop, as were the passing crowds in london, who stopped in the streets to gaze with admiration upon the great american preacher. the digger chief did not conceal his delight. after looking upon the bishop fixedly for some moments, he went up to him, and tapping first his own chest and then the bishop's, he said: "me big man--you big man!" it was his opinion that two great men had met, and that the occasion was a grand one. moralizers to the contrary notwithstanding, greatness is not always lacking in self-consciousness. "i would like to go into one of their wigwams, or huts, and see how they really live," said the bishop. "you had better drop that idea," said the guide, a white man who knew more about digger indians than was good for his reputation and morals, but who was a good-hearted fellow, always ready to do a friendly turn, and with plenty of time on his hands to do it. the genius born to live without work will make his way by his wits, whether it be in the lobby at washington city, or as a hanger-on at a digger camp. the bishop insisted on going inside the chief's wigwam, which was a conical structure of long tule-grass, air-tight and weather-proof, with an aperture in front just large enough for a man's body in a crawling attitude. sacrificing his dignity, the bishop went down on all-fours, and then a degree lower, and, following the chief; crawled in. the air was foul, the smells were strong, and the light was dim. the chief proceeded to tender to his distinguished guest the hospitalities of the establishment, by offering to share his breakfast with him. the bill of fare was grasshoppers, with acorns as a side-dish. the bishop maintained his dignity as he squatted there in the dirt--his dignity was equal to any test. he declined the grasshoppers tendered him by the chief, pleading that he had already breakfasted, but watched with peculiar sensations the movements of his host, as handful after handful of the crisp and juicy gryllus vulgaris were crammed into his capacious mouth, and swallowed. what he saw and smelt, and the absence of fresh air, began to tell upon the bishop--he became sick and pale, while a gentle perspiration, like unto that felt in the beginning of seasickness, beaded his noble forehead. with slow dignity, but marked emphasis, he spoke: "brother bristow, i propose that we retire." they retired, and there is no record that bishop soule ever expressed the least desire to repeat his visit to the interior of a digger indian's abode. the whites had many difficulties with the diggers in the early days. in most cases i think the whites were chiefly to blame. it is very hard for the strong to be just to the weak. the weakest creature, pressed hard, will strike back. white women and children were massacred in retaliation for outrages committed upon the ignorant indians by white outlaws. then there would be a sweeping destruction of indians by the excited whites, who in those days made rather light of indian shooting. the shooting of a "buck" was about the same thing, whether it was a male digger or a deer. "there is not much fight in a digger unless he's got the dead-wood on you, and then he'll make it rough for you. but these injuns are of no use, and i'd about as soon shoot one of them as a coyote" (ki-o-te). the speaker was a very red-faced, sandy-haired man, with blood-shot blue eyes, whom i met on his return to the humboldt country after a visit to san francisco. "did you ever shoot an indian?" i asked. "i first went up into the eel river country in '46," he answered. "they give us a lot of trouble in them days. they would steal cattle, and our boys would shoot. but we've never had much difficulty with them since the big fight we had with them in 1849. a good deal of devilment had been goin' on all roun', and some had been killed on both sides. the injuns killed two women on a ranch in the valley, and then we set in just to wipe 'em out. their camp was in a bend of the river, near the head of the valley, with a deep slough on the right flank. there was about sixty of us, and dave was our captain. he was a hard rider, a dead shot, and not very tender-hearted. the boys sorter liked him, but kep' a sharp eye on him, knowin' he was so quick and handy with a pistol. our plan was to git to their camp and fall on em at daybreak, but the sun was risin' just as we come in sight of it. a dog barked, and dave sung out: "'out with your pistols! pitch in, and give 'em the hot lead!' "in we galloped at full speed, and as the injuns come out to see what was up, we let 'em have it. we shot forty bucks--about a dozen got away by swimmin' the river." "were any of the women killed?" "a few were knocked over. you can't be particular when you are in a hurry; and a squaw, when her blood is up, will fight equal to a buck." the fellow spoke with evident pride, feeling that he was detailing a heroic affair, having no idea that he had done any thing wrong in merely killing "bucks." i noticed that this sane man was very kind to an old lady who took the stage for bloomfield--helping her into the vehicle, and looking after her baggage. when we parted, i did not care to take the hand that had held a pistol that morning when the digger camp was "wiped out." the scattered remnants of the digger tribes were gathered into a reservation in round valley, mendocino county, north of the bay of san francisco, and were there taught a mild form of agricultural life, and put under the care of government agents, contractors, and soldiers, with about the usual results. one agent, who was also a preacher, took several hundred of them into the christian church. they seemed to have mastered the leading facts of the gospel, and attained considerable proficiency in the singing of hymns. altogether, the result of this effort at their conversion showed that they were human beings, and as such could be made recipients of the truth and grace of god, who is the father of all the families of the earth. their spiritual guide told me he had to make one compromise with them--they would dance. extremes meet--the fashionable white christians of our gay capitals and the tawny digger exhibit the same weakness for the fascinating exercise that cost john the baptist his head. there is one thing a digger cannot bear, and that is the comforts and luxuries of civilized life. a number of my friends, who had taken digger children to raise, found that as they approached maturity they fell into a decline and died, in most cases of some pulmonary affection. the only way to save them was to let them rough it, avoiding warm bed-rooms and too much clothing. a digger girl belonged to my church at santa rosa, and was a gentle, kind-hearted, grateful creature. she was a domestic in the family of colonel h--. in that pleasant christian household she developed into a pretty fair specimen of brunette young womanhood, but to the last she had an aversion to wearing shoes. the digger seems to be doomed. civilization kills him; and if he sticks to his savagery, he will go down before the bullets, whisky, and vices of his white fellow-sinners. the california mad-house. on my first visit to the state insane asylum, at stockton, i was struck by the beauty of a boy of some seven or eight years, who was moving about the grounds clad in a strait-jacket. in reply to my inquiries, the resident physician told me his history: "about a year ago he was on his way to california with the family to which he belonged. he was a general pet among the passengers on the steamer. handsome, confiding, and overflowing with boyish spirits, everybody had a smile and a kind word for the winning little fellow. even the rough sailors would pause a moment to pat his curly head as they passed. one day a sailor, yielding to a playful impulse in passing, caught up the boy in his arms, crying: "'i am going to throw you into the sea!' "the child gave one scream of terror, and went into convulsions. when the paroxysm subsided, he opened his eyes and gazed around with a vacant expression. his mother, who bent over him with a pale face, noticed the look, and almost screamed: "'tommy, here is your mother--don't you know me?' "the child gave no sign of recognition. he never knew his poor mother again. he was literally frightened out of his senses. the mother's anguish was terrible. the remorse of the sailor for his thoughtless freak was so great that it in some degree disarmed the indignation of the passengers and crew. the child had learned to read, and had made rapid progress in the studies suited to his age, but all was swept away by the cruel blow. he was unable to utter a word intelligently. since he has been here, there have been signs of returning mental consciousness, and we have begun with him as with an infant. he knows and can call his own name, and is now learning the alphabet." "how is his health?" "his health is pretty good, except that he has occasional convulsive attacks that can only be controlled by the use of powerful opiates." i was glad to learn, on a visit made two years later, that the unfortunate boy had died. this child was murdered by a fool. the fools are always murdering children, though the work is not always done as effectually as in this case. they cripple and half kill them by terror. there are many who will read this sketch who will carry to the grave, and into the world of spirits, natures out of which half the sweetness, and brightness, and beauty has been crushed by ignorance or brutality. in most cases it is ignorance. the hand that should guide, smites; the voice that should soothe, jars the sensitive chords that are untuned forever. he who thoughtlessly excites terror in a child's heart is unconsciously doing the devil's work; he that does it consciously is a devil. "there is a lady here whom i wish you would talk to. she belongs to one of the most respectable families in san francisco, is cultivated, refined, and has been the center of a large and loving circle. her monomania is spiritual despair. she thinks she has committed the unpardonable sin. there she is now. i will introduce you to her. talk with her, and comfort her if you can." she was a tall, well-formed woman in black, with all the marks of refinement in her dress and bearing. she was walking the floor to and fro with rapid steps, wringing her hands, and moaning piteously. indescribable anguish was in her face--it was a hopeless face. it haunted my thoughts for many days, and it is vividly before me as i write now. the kind physician introduced me, and left the apartment. there is a sacredness about such an interview that inclines me to veil its details. "i am willing to talk with you, sir, and appreciate your motive, but i understand my situation. i have committed the unpardonable sin, and i know there is no hope for me." with the earnestness excited by intense sympathy, i combated her conclusion, and felt certain that i could make her see and feel that she had given way to an illusion. she listened respectfully to all i had to say, and then said again: "i know my situation. i denied my saviour after all his goodness to me, and he has left me forever." there was the frozen calmness of utter despair in look and tone. i left her as i found her. "i will introduce you to another woman, the opposite of the poor lady you have just seen. she thinks she is a queen, and is perfectly harmless. you must be careful to humor her illusion. there she is--let me present you." she was a woman of immense size, enormously fat, with broad red face, and a self-satisfied smirk, dressed in some sort of flaming scarlet stuff, profusely tinseled all over, making a gorgeously ridiculous effect. she received me with a mixture of mock dignity and smiling condescension, and surveying herself admiringly, she asked: "how do you like my dress?" it was not the first time that royalty had shown itself not above the little weaknesses of human nature. on being told that her apparel was indeed magnificent, she was much pleased, and drew herself up proudly, and was a picture of ecstatic vanity. are the real queens as happy? when they lay aside their royal robes for their grave clothes, will not the pageantry which was the glory of their lives seem as vain as that of this tinseled queen of the mad-house? where is happiness, after all? is it in the circumstances, the external conditions? or, is it in the mind? such were the thoughts passing through my mind, when a man approached with a violin. every eye brightened, and the queen seemed to thrill with pleasure in every nerve. "this is the only way we can get some of them to take any exercise. the music rouses them, and they will dance as long as they are permitted to do so." the fiddler struck up a lively tune, and the queen, with marvelous lightness of step and ogling glances, ambled up to a tall, raw-boned methodist preacher, who had come with me, and invited him to dance with her. the poor parson seemed sadly embarrassed, as her manner was very pressing, but he awkwardly and confusedly declined, amid the titters of all present. it was a singular spectacle, that dance of the mad-women. the most striking figure on the floor was the queen. her great size, her brilliant apparel, her astonishing agility, the perfect time she kept, the bows, the smiles and blandishments, she bestowed on an imaginary partner, were indescribably ludicrous. now and then, in her evolutions, she would cast a momentary reproachful glance at the ungallant clergyman who had refused to dance with feminine royalty, and who stood looking on with a sheepish expression of face. he was a kentuckian, and lack of gallantry is not a kentucky trait. during the session of the annual conference at stockton, in 1859 or 1860, the resident physician invited me to preach to the inmates of the asylum on sunday afternoon. the novelty of the service, which was announced in the daily papers, attracted a large number of visitors, among them the greater part of the preachers. the day was one of those bright, clear, beautiful october days, peculiar to california, that make you think of heaven. i stood on the steps, and the hundreds of men and women stood below me, with their upturned faces. among them were old men crushed by sorrow, and old men ruined by vice; aged women with faces that seemed to plead for pity, women that made you shrink from their unwomanly gaze; lion-like young men, made for heroes but caught in the devil's trap and changed into beasts; and boys whose looks showed that sin had already stamped them with its foul insignia, and burned into their souls the shame which is to be one of the elements of its eternal punishment. a less impressible man than i would have felt moved at the sight of that throng of bruised and broken creatures. a hymn was read, and when burnet, kelsay, neal, and others of the preachers, struck up an old tune, voice after voice joined in the melody until it swelled into a mighty volume of sacred song. i noticed that the faces of many were wet with tears, and there was an indescribable pathos in their voices. the pitying god, amid the rapturous hallelujahs of the heavenly hosts, bent to listen to the music of these broken harps. this text was announced, my peace i give unto you; and, the sermon began. among those standing nearest to me was "old kelley," a noted patient whose monomania was the notion that he was a millionaire, and who spent most of his time in drawing checks on imaginary deposits for vast sums of money. i held one of his checks for a round million, but it has never yet been cashed. the old man pressed up close to me, seeming to feel that the success of the service somehow depended on him. i had not more than fairly begun my discourse, when he broke in: "that's daniel webster!" i don't mind a judicious "amen," but this put me out a little. i resumed my remarks, and was getting another good start, when he again broke in enthusiastically: "henry clay!" the preachers standing around me smiled--i think i heard one or two of them titter. i could not take my eyes from kelley, who stood with open mouth and beaming countenance, waiting for me to go on. he held me with an evil fascination. i did go on in a louder voice, and in a sort of desperation; but again my delighted hearer exclaimed: "calhoun!" "old kelley" spoiled that sermon, though he meant kindly. he died not long afterward, gloating over his fancied millions to the last. "if you have steady nerves, come with me and i will show you the worst case we have--a woman half tigress, and half devil." ascending a stairway, i was led to an angle of the building assigned to the patients whose violence required them to be kept in close confinement. "hark! don't you hear her? she is in one of her paroxysms now." the sounds that issued from one of the cells were like nothing i had ever heard before. they were a series of unearthly, fiendish shrieks, intermingled with furious imprecations, as of a lost spirit in an ecstasy of rage and fear. the face that glared upon me through the iron grating was hideous, horrible. it was that of a woman, or of what had been a woman, but was now a wreck out of which evil passion had stamped all that was womanly or human. i involuntarily shrunk back as i met the glare of those fiery eyes, and caught the sound of words that made me shudder. i never suspected myself of being a coward, but i felt glad that the iron bars of the cell against which she dashed herself were strong. i had read of furies--one was now before me. the bloated, gin-inflamed face, the fiery-red, wicked eyes, the swinish chin, the tangled coarse hair falling around her like writhing snakes, the tiger-like clutch of her dirty fingers, the horrible words--the picture was sickening, disgust for the time almost, extinguishing pity. "she was the keeper of a beer-saloon in san francisco, and led a life of drunkenness and licentiousness until she broke down, and she was brought here." "is there any hope of her restoration?" "i fear not--nothing short of a miracle can, retune an instrument so fearfully broken and jangled." i thought of her out of whom were cast the seven devils, and of him who came to seek and to save the lost, and resisting the impulse that prompted me to hurry away from the sight and hearing of this lost woman, i tried to talk with her, but had to retire at last amid a volley of such language as i hope never to hear from a woman's lips again. "listen! did you ever hear a sweeter voice than that?" i had heard the voice before, and thrilled under its power. it was a female voice of wonderful richness and volume, with a touch of something in it that moved you strangely--a sort of intensity that set your pulses to beating faster, while it entranced you. the whole of the spacious grounds were flooded with the melody, and the passing teamsters on the public highway would pause and listen with wonder and delight. the singer was a fair young girl, with dark auburn hair, large brown eyes, that were at times dreamy and sad, and then again lit up with excitement, as her moods changed from sad to gay. "she will sit silent for hours gazing listlessly out of the window, and then all at once break forth into a burst of song so sweet and thrilling that the other patients gather near her and listen in rapt silence and delight. sometimes at a dead hour of the night her voice is heard, and then it seems that she is under a special afflatus--she seems to be inspired by the very soul of music, and her songs, wild and sad, wailing and rollicking, by turns, but all exquisitely sweet, fill the long night-hours with their melody." the shock caused by the sudden death of her betrothed lover overthrew her reason, and blighted her life. by the mercy of god, the love of music and the gift of song survived the wreck of love and of reason. this girl's voice, pealing forth upon the still summer evening air, is mingled with my last recollection of stockton and its refuge for the doubly miserable who are doomed to death in life. san quentin. "i want you to go with me over to san quentin next thursday, and preach a thanksgiving-sermon to the poor fellows in the state-prison." on the appointed morning, i met our party at the vallejo-street wharf, and we were soon steaming on our way. passing under the guns of fort alcatraz, past angel island--why so called i know not, as in early days it was inhabited not by angels but goats only--all of us felt the exhilaration of the california sunshine, and the bracing november air, as we stood upon the guards, watching the play of the lazy-looking porpoises, that seemed to roll along, keeping up with the swift motion of the boat in such a leisurely way. the porpoise is a deceiver. as he rolls up to the surface of the water, in his lumbering way, he looks as if he were a huge lump of unwieldy awkwardness, floating at random and almost helpless; but when you come to know him better, you find that he is a marvel of muscular power and swiftness. i have seen a "school" of porpoises in the pacific swimming for hours alongside one of our fleetest ocean-steamers, darting a few yards ahead now and then, as if by mere volition, cutting their way through the water with the directness of an arrow. the porpoise is playful at times, and his favorite game is a sort of leap-frog. a score or more of the creatures, seemingly full of fun and excitement, will chase one another at full speed, throwing themselves from the water and turning somersaults in the air, the water boiling with the agitation, and their huge bodies flashing in the light. you might almost imagine that they had found something in the sea that had made them drunk, or that they had inhaled some sort of piscatorial anaesthetic. but here we are at our destination. the bell rings, we round to, and land. at san quentin nature is at her best, and man at his worst. against the rocky shore the waters of the bay break in gentle splashings when the winds are quiet. when the gales from the southwest sweep through the golden gate, and set the white caps to dancing to their wild music, the waves rise high, and dash upon the dripping stones with a hoarse roar, as of anger. beginning a few hundreds of yards from the water's edge, the hills slope up, and up, and up, until they touch the base of tamalpais, on whose dark and rugged summit, four thousand feet above the sea that laves his feet on the west, the rays of the morning sun fall with transfiguring, glory while yet the valley below lies in shadow. on this lofty pinnacle linger the last rays of the setting sun, as it drops into the bosom of the pacific. in stormy weather, the mist and clouds roll in from the ocean, and gather in dark masses around his awful head, as if the sea-gods had risen from their homes in the deep, and were holding a council of war amid the battle of the elements; at other times, after calm, bright days, the thin, soft white clouds that hang about his crest deepen into crimson and gold, and the mountaintop looks as if the angels of god had come down to encamp, and pitched here their pavilions of glory. this is nature at san quentin, and this is tamalpais as i have looked upon it many a morning and many an evening from my window above the sea at north beach. the gate is opened for us, and we enter the prison-walls. it is a holiday, and the day is fair and balmy; but the chill and sadness cannot be shaken off, as we look around us. the sunshine seems almost to be a mockery in this place where fellow-men are caged and guarded like wild beasts, and skulk about with shaved heads, clad in the striped uniform of infamy. merciful god! is this what thy creature man was made for? how long, how long? seated upon the platform with the prison officials and visitors, i watched my strange auditors as they came in. there were one thousand of them. their faces were a curious study. most of them were bad faces. beast and devil were printed on them. thick necks, heavy back-heads, and low, square foreheads, were the prevalent types. the least repulsive were those who looked as if they were all animal, creatures of instinct and appetite, good-natured and stupid; the most repulsive were those whose eyes had a gleam of mingled sensuality and ferocity. but some of these faces that met my gaze were startling--they seemed so out of place. one old man with gray hair, pale, sad face, and clear blue eyes, might have passed, in other garb and in other company, for an honored member of the society of friends. he had killed a man in a mountain county. if he was indeed a murderer at heart, nature had given him the wrong imprint. my attention was struck by a smooth-faced, handsome young fellow, scarcely of age, who looked as little like a convict as anybody on that platform. he was in for burglary, and had a very bad record. some came in half laughing, as if they thought the whole affair more a joke than anything else. the mexicans, of whom there was quite a number, were sullen and scowling. there is gloom in the spanish blood. the irrepressible good nature of several ruddy-faced irishmen broke out in sly merriment. as the service began, the discipline of the prison showed itself in the quiet that instantly prevailed; but only a few, who joined in the singing, seemed to feel the slightest interest in it. their eyes were wandering, and their faces were vacant. they had the look of men who had come to be talked at and patronized, and who were used to it. the prayer that was offered was not calculated to banish such a feeling --it was dry and cold. i stood up to begin the sermon. never before had i realized so folly that god's message was to lost men, and for lost men. a mighty tide of pity rushed in upon my soul as i looked down into the faces of my hearers. my eyes filled, and my heart melted within me. i could not speak until after a pause, and only then by great effort. there was a deep silence, and every face was lifted to mine as i announced the text. god had touched my heart and theirs at the start. i read the words slowly: god hath not appointed us to wrath, but to obtain salvation by our lord jesus christ. then i said: "my fellow-men, i come to you today with a message from my father, and your father in heaven. it is a message of hope. god help me to deliver it as i ought! god help you to hear it as you ought! i will not insult you by saying that because you have an extra dinner, a few hours respite from your toil, and a little fresh air and sunshine, you ought to have a joyful thanksgiving today. if i should talk thus, you would be ready to ask me how i would like to change places with you. you would despise me, and i would despise myself, for indulging in such cant. your lot is a hard one. the battle of life has gone against you--whether by your own fault or by hard fortune, it matters not, so far as the fact is concerned; this thanksgiving-day finds you locked in here, with broken lives, and wearing the badge of crime. god alone knows the secrets of each throbbing heart before me, and how it is that you have come to this. fellow-men, children of my father in heaven, putting myself for the moment in your place, the bitterness of your lot is real and terrible to me. for some of you there is no happier prospect for this life than to toil within these walls by day, and sleep in yonder cells by night, through the weary, slow-dragging years, and then to die, with only the hands of hired attendants to wipe the death-sweat from your brows; and then to be put in a convict's coffin, and taken up on the hill yonder, and laid in a lonely grave. my god! this is terrible!" an unexpected dramatic effect followed these words. the heads of many of the convicts fell forward on their breasts, as if struck with sudden paralysis. they were the men who were in for life, and the horror of it overcame them. the silence was broken by sobbings all over the room. the officers and visitors on the platform were weeping. the angel of pity hovered over, the place, and the glow of human sympathy had melted those stony hearts. a thousand strong men were thrilled with the touch of sympathy, and once more the sacred fountain of tears was unsealed. these convicts were men, after all, and deep down under the rubbish of their natures there was still burning the spark of a humanity not yet extinct. it was wonderful to see the softened expression of their faces. yes, they were men, after all, responding to the voice of sympathy, which had been but too strange to many of them all their evil lives. many of them had inherited hard conditions; they were literally conceived in sin and born in iniquity; they grew up in the midst of vice. for them pure and holy lives were a moral impossibility. evil with them was hereditary, organic, and the result of association; it poisoned their blood at the start, and stamped itself on their features from their cradles. human law, in dealing with these victims of evil circumstance, can make little discrimination. society must protect itself, treating a criminal as a criminal. but what will god do with them hereafter? be sure he will do right. where little is given, little will be required. it shall be better for tyre and sidon at the day of judgment than for chorazin and bethsaida. there is no ruin without remedy, except that which a man makes for himself by abusing mercy, and throwing away proffered opportunity. thoughts like these rushed through the preacher's mind, as he stood there looking in the tear-bedewed faces of these men of crime. a fresh tide of pity rose in his heart, that he felt came from the heart of the all-pitying one. "i do not try to disguise from you, or from myself the fact that for this life your outlook is not bright. but i come to you this day with a message of hope from god our father. he hath not appointed you to wrath. he loves all his children. he sent his son to die for them. jesus trod the paths of pain, and drained the cup of sorrow. he died as a malefactor, for malefactors. he died for me. he died for each one of you. if i knew the most broken, the most desolate-hearted, despairing man before me, who feels that he is scorned of men and forsaken of god, i would go to where he sits and put my hand on his head, and tell him that god hath not appointed him to wrath, but to obtain salvation by our lord jesus christ, who died for us. i would tell him that his father in heaven loves him still, loves him more than the mother that bore him. i would tell him that all the wrongs and follies of his past life may from this hour be turned into so much capital of a warning experience, and that a million of years from today he may be a child of the heavenly father, and an heir of glory, having the freedom of the heavens and the blessedness of everlasting life. o brothers, god does love you! nothing can ruin you but your own despair. no man has any right to despair who has eternity before him. eternity? long, long eternity! blessed, blessed eternity! that is yours--all of it. it may be a happy eternity for each one of you. from this moment you may begin a better life. there is hope for you, and mercy, and love, and heaven. this is the message i bring you warm from a brother's heart, and warm from the heart of jesus, whose life-blood was poured out for you and me. his loving hand opened the gate of mercy and hope to every man. the proof is that he died for us. o son of god, take us to thy pitying arms, and lift us up into the light that never, never grows dim--into the love that fills heaven and eternity!" as the speaker sunk into his seat, there was a silence that was almost painful for a few moments. then the pent-up emotion of the men broke forth in sobs that shook their strong frames. dr. lucky, the prisoner's friend, made a brief, tearful prayer, and then the benediction was said, and the service was at an end. the men sat still in their seats. as we filed out, of the chapel, many hands were extended to grasp mine, holding it with a clinging pressure. i passed out bearing with me the impression of an hour i can never forget; and the images of those thousand faces are still painted in memory. "corralled." "so you were corralled last night?" this was the remark of a friend whom i met in the streets of stockton the morning after my adventure. i knew what the expression meant as applied to cattle, but i had never heard it before in reference to a human being. yes, i had been corralled; and this is how it happened: it was in the old days, before there were any railroads in california. with a wiry, clean-limbed pinto horse, i undertook to drive from sacramento city to stockton one day. it was in the winter season, and the clouds were sweeping up from the south-west, the snow-crested sierras hidden from sight by dense masses of vapor boiling at their bases and massed against their sides. the roads were heavy from the effects of previous rains, and the plucky little pinto sweated as he pulled through the long stretches of black adobe mud. a cold wind struck me in the face, and the ride was a dreary one from the start. but i pushed on confidently, having faith in the spotted mustang, despite the evident fact that he had lost no little of the spirit with which he dashed out of town at starting. when a genuine mustang flags, it is a serious business. the hardiness and endurance of this breed of horses almost exceed belief. toward night a cold rain began to fall, driving in my face with the headwind. still many a long mile lay between me and stockton. dark came on, and it was dark indeed. the outline of the horse i was driving could not be seen, and the flat country through which i was driving was a great black sea of night. i trusted to the instinct of the horse, and moved on. the bells of a wagon-team meeting me fell upon my ear. i called out, "halloo there!" "what's the matter?" answered a heavy voice through the darkness. "am i in the road to stockton, and can i get there tonight?" "you are in the road, but you will never find your way such a night as this. it is ten good miles from here; you have several bridges to cross --you had better stop at the first house you come to, about half a mile ahead. i am going to strike camp myself." i thanked my adviser, and went on, hearing the sound of the tinkling bells, but unable to see any thing. in a little while i saw a light ahead, and was glad to see it. driving up in front and halting, i repeated the traveler's "halloo" several times, and at last got a response in a hoarse, gruff voice. "i am belated on my way to stockton, and am cold, and tired, and hungry. can i get shelter with you for the night?" "you may try it, if you want to," answered the unmusical voice abruptly. in a few moments a man appeared to take the horse, and taking my satchel in hand, i went into the house. the first thing that struck my attention on entering the room was a big log-fire, which i was glad to see, for i was wet and very cold. taking a chair in the corner, i looked around. the scene that presented itself was not reassuring. the main feature of the room was a bar, with an ample supply of barrels, demijohns, bottles, tumblers, and all the et ceteras. behind the counter stood the proprietor, a burly fellow with a buffalo-neck, fair skin and blue eyes, with a frightful scar across his left under-jaw and neck; his shirt-collar was open, exposing, a huge chest, and his sleeves were rolled up above the elbows. i noticed also that one of his hands was minus all the fingers but the half of one--the result probably of some desperate reencounter. i did not like the appearance of my landlord, and he eyed me in a way that led me to fear that he liked my looks as little as i did his; but the claims of other guests soon diverted his attention from me, and i was left to get warm and make further observations. at a table in the middle of the room several hard-looking fellows were betting at cards, amid terrible profanity and frequent drinks of whisky. they cast inquiring and not very friendly glances at me from time to time, once or twice exchanging whispers and giggling. as their play went on, and tumbler after tumbler of whisky was drunk by them, they became more boisterous. threats were made of using pistols and knives, with which they all seemed to be heavily armed; and one sottish-looking brute actually drew forth a pistol, but was disarmed in no gentle way by the big-limbed landlord. the profanity and other foul language were horrible. many of my readers have no conception of the brutishness of men when whisky and satan have full possession of them. in the midst of a volley of oaths and terrible imprecations by one of the most violent of the set, there was a faint gleam of lingering decency exhibited by one of his companions: "blast it, dick, don't cuss so loud--that fellow in the corner there is a preacher!" there was some potency in "the cloth" even there. how he knew my calling i do not know. the remark directed particular attention to me and i became unpleasantly conspicuous. scowling glances were bent upon me by two or three of the ruffians, and one fellow made a profane remark not at all complimentary to my vocation--where at there was some coarse laughter. in the meantime i was conscious of being very hungry. my hunger, like that of a boy, is a very positive, thing at, least it was very much so in those days. glancing toward the maimed and scarred giant who stood behind the bar, i found he was gazing at me with a fixed expression. "can i get something to eat? i am very hungry, sir," i said in my blandest tones. "yes, we've, plenty of 'cold' goose, and maybe pete can pick up something else for you if he, is sober and in a good humor. come this way." i followed him through a narrow passage-way, which led to a long, low-ceiled room, along nearly the whole length of which was stretched a table, around which were placed rough stools for the rough men about the place. pete, the cook; came in and the head of the house turned me over to him, and returned to his duties behind the bar. from the noise of the uproar going on, his presence was doubtless needed. pete set before me a large roasted wild-goose, not badly cooked, with bread, milk, and the inevitable cucumber pickles. the knives and forks were not very bright --in fact, they had been subjected to influences promotive of oxidation; and the dishes were not free from signs of former use. nothing could be said against the tablecloth--there was no tablecloth there. but the goose was fat, brown, and tender; and a hungry man defers his criticisms until he is done eating. that is what i did. pete evidently regarded me with curiosity. he was about fifty years of age, and had the look of a man who had come down in the world. his face bore the marks of the effects of strong drink, but it was not a bad face; it was more weak than wicked. "are you a preacher?" he asked. "i thought so," he added, after getting my answer to his question. "of what persuasion are you?"! he further inquired. when i told him i was a methodist, he said quickly and with some warmth: "i was sure of it. this is a rough place for a man of your calling. would you like some eggs? we've plenty on hand. and may be you would like a cup of coffee," he added, with, increasing hospitality. i took the eggs, but declined the coffee, not liking the looks of the cups and saucers, and not caring to wait. "i used to be a methodist myself," said pete, with a sort of choking in his throat, "but bad luck and bad company have brought me down to this. i have a family in iowa, a wife and four children. i guess they think i'm dead, and sometimes i wish i was." pete stood by my chair, actually crying. the sight of a methodist preacher brought up old times. he told me his story. he had come to california hoping to make a fortune in a hurry, but had only ill luck from the start. his prospectings were always failures, his partners cheated him, his health broke down, his courage gave way, and--he faltered a little, and then spoke it out--he took to whisky, and then the worst came. "i have come down to this--cooking for a lot of roughs at five dollars a week, and all the whisky i want. it would have been better for me if i had died when i was in the hospital at san andreas." poor pete! he had indeed touched bottom. but he had a heart and a conscience still, and my own heart warmed toward my poor backslidden brother. "you are not a lost man yet. you are worth a thousand dead men. you can get out of this, and you must. you must act the part of a brave man, and not be any longer a coward. bad luck and lack of success are a disgrace to no man. there is where you went wrong. it was cowardly to give up and not write to your family, and then take to whisky." "i know all that, elder. there is no better little woman on earth than my wife"--pete choked up again. "you write to her this very night, and go back to her and your children just as soon as you can get the money to pay your way. act the man, and all will come right yet. i have writing materials here in my satchel --pen, ink, paper, envelopes, stamps, every thing; i am an editor, and go fixed up for writing." the letter was written, i acting as pete's amanuensis, he pleading that he was a poor scribe at best and that his nerves were too unsteady for such work. taking my advice, he made a clean breast of the whole matter, throwing himself on the forgiveness of the wife whom he had so shamefully neglected, and promising by the help of god to make all the amends possible in time to come. the letter was duly directed, sealed, and stamped; and pete looked as if a great weight had been lifted from his soul, he had made me a fire in the little stove, saying it was better than the barroom; in which opinion i was fully agreed. "there is no place for you to sleep tonight without corralling you with the fellows; there is but one bedroom, and there are fourteen bunks in it." i shuddered at the prospect-fourteen bunks in one small room, and those whisky-sodden, loud-cursing card-players to be my roommates for the night! "i prefer sitting here by the stove all night," i said; "i can employ most of the time writing, if i can have a light." pete thought a moment, looked grave, and then said: "that won't do, elder; those fellows would take offense, and make trouble. several of them are out now goose-hunting; they will be coming in at all hours from now till daybreak, and it won't do for them to find you sitting up here alone. the best, thing for you to do is to go in and take one of those bunks; you, needn't takeoff any thing but your coat and boots, and"--here he lowered his voice, looking about him as he spoke--"if you have any money about, keep it next to your body." the last words were spoken with peculiar emphasis. taking the advice given me, i took up my baggage and followed pete to the room where i was to spend the night. ugh! it was dreadful. the single window in the room was nailed down, and the air was close and foul. the bunks were damp and dirty beyond belief, grimed with foulness, and reeking with ill odors. this was being corralled. i turned to pete, saying: "i can't stand this--i will go back to the kitchen." "you had better follow my advice, elder," said he very gravely. "i know things about here better than you do. it's rough, but you had better stand it." and i did; being corralled, i had to stand it. that fearful night! the drunken fellows staggered in one by one, cursing and hiccoughing, until every bunk was occupied. they muttered oaths in their sleep, and their stertorous breathings made a concert fit for tartarus. the sickening odors of whisky, onions, and tobacco filled the room. i lay there and longed for daylight, which seemed as if it never would come. i thought of the descriptions i had heard and read of hell, and just then the most vivid conception of its horror was to be shut up forever with the aggregated impurity of the universe. by contrast i tried to think of that city of god into which, it is said, "there shall in no wise enter into it any thing that defileth, neither whatsoever worketh abomination, or maketh a lie; but they which are written in the lamb's book of life." but thoughts of heaven did not suit the situation; it was more suggestive of the other place. the horror of being shut up eternally in hell as the companion of lost spirits was intensified by the experience and reflections of that night when i was corralled. day came at last. i rose with the first streaks of the dawn, and not having much toilet to make, i was soon out-of-doors. never did i breathe the pure, fresh air with such profound pleasure and gratitude. i drew deep inspirations, and, opening my coat and vest, let the breeze that swept up the valley blow upon me unrestricted. how bright, was the face of nature, and how sweet her, breath after the sights, sounds, and smells of the night! i did not wait for breakfast, but had my pinto and buggy brought out, and, bidding pete good-by, hurried on to stockton. "so you were corralled last night?" was the remark of a friend, quoted at the beginning of this true sketch. "what was the name of the proprietor of the house?" i gave him the name. "dave w--!" he exclaimed with fresh astonishment. "that is the roughest place in the san joaquin valley. several men have been killed and robbed there during the last two or three years." i hope pete got back safe to his wife and children in iowa; and i hope i may never be corralled again. the reblooming. it is now more than twenty years since the morning a slender youth of handsome face and modest mien came into my office on the corner of montgomery and clay streets, san francisco. he was the son of a preacher well known in missouri and california, a man of rare good sense, caustic wit, and many eccentricities. the young man became an attache of my newspaper-office and an inmate of my home. he was as fair as a girl, and refined in his taste and manners. a genial taciturnity, if the expression may be allowed, marked his bearing in the social circle. everybody had a kind feeling and a good word for the quiet, brightfaced youth. in the discharge of his duties in the office he was punctual and trustworthy, showing not only industry but unusual aptitude for business it was with special pleasure that i learned that he was turning his thoughts to the subject of religion. during the services in the little pine-street church he would sit with thoughtful face, and not seldom with moistened eyes. he read the bible and prayed in secret. i was not surprised when he came to me one day and opened his heart. the great crisis in his life had come. god was speaking to his soul, and he was listening to his voice. the uplifted cross drew him, and he yielded to the gentle attraction. we prayed together, and henceforth there was a new and sacred bond that bound us to each other. i felt that i was a witness to the most solemn transaction that can take place on earth--the wedding of a soul to a heavenly faith. soon thereafter he went to virginia, to attend college. there he united with the church. his letters to me were full of gratitude and joy. it was the blossoming of his spiritual life, and the air was full of its fragrance, and the earth was flooded with glory. a pedestrian tour among the virginia hills brought him into communion with nature at a time when it was rapture to drink in its beauty and its grandeur. the light kindled within his soul by the touch of the holy spirit transfigured the scenery upon which he gazed, and the glory of god shone round about the young student in the flush and blessedness of his first love. o blessed days! o days of brightness, and sweetness, and rapture! the soul is then in its blossoming-time, and all high enthusiasms, all bright dreams, all thrilling joys, are realities which inwork themselves into the consciousness, to be forgotten never; to remain with us as prophecies of the eternal springtime that awaits the true-hearted on the hills of god beyond the grave, or as accusing voices charging us with the murder of our dead ideals! amid the dust and din of the battle in after-years we turn to this radiant spot in our journey with smiles or tears; according as we have been true or false to the impulses, aspirations, and purposes inspired within us by that first, and brightest, and nearest manifestation of god. such a season is a natural to every life as the april buds and june roses are to forest and garden. the springtime of some lives is deferred by unpropitious circumstance to the time when it should be glowing with autumnal glory, and rich in the fruitage of the closing year. the life that does not blossom into religion in youth may have light at noon, and peace at sunset, but misses the morning glory on the hills, and the dew that sparkles on grass and flower. the call of god to the young to seek him early is the expression of a true psychology no less than of a love infinite in its depth and tenderness. his college-course finished, my young friend returned to california, and in one of its beautiful valley-towns he entered a law-office, with a view to prepare himself for the legal profession. here he was thrown into daily association with a little knot of skeptical lawyers. as is often the case, their moral obliquities ran parallel with their errors in opinion. they swore, gambled genteelly, and drank. it is not strange that in this icy atmosphere the growth of any young friend in the christian life was stunted. such influences are like the dreaded north wind that at times sweeps over the valleys of california in the spring and early summer, blighting and withering the vegetation it does not kill. the brightness of his hope was dimmed, and his soul knew the torture of doubt--a torture that is always keenest to him who allows himself to sink in the region of fogs after he has once stood upon the sunlit summit of faith. just at this crisis, a thing little in itself deepened the shadow that was falling upon his life. a personal misunderstanding with the pastor kept him from attending church. thus he lost the most effectual defense against the assaults that were being made upon his faith and hope, in being separated from the fellowship and cut off from the activities of the church of god. have you not noted these malign coincidences in life? there are times when it seems that the tide of events sets against us when, like the princely sufferer of the land of uz, every messenger that crosses the threshold brings fresh tidings of ill, and our whole destiny seems to be rushing to a predoomed perdition. the worldly call it bad luck; the superstitious call it fate; the believer in god calls it by another name. always of a delicate constitution, my friend now exhibited symptoms of serious pulmonary disease. it was at that time the fashion in california to prescribe whisky as a specific for that class of ailments. it is possible that there is virtue in the prescription, but i am sure of one thing, namely, that if consumption diminished, drunkenness increased; if fewer died of phthisis, more died of delirium tremens. the physicians of california have sent a host of victims raving and gibbering in drunken frenzy or idiocy down to death and hell! i have reason to believe that my friend inherited a constitutional weakness at this point. as flame to tinder, was the medicinal whisky to him. it grew upon him rapidly, and soon this cloud overshadowed all his life. he struggled hard to break the serpent-folds that were tightening around him; but the fire that had been kindled seemed to be quenchless. an uncontrolled evil passion is hellfire. he writhed in its burnings in an agony that could be understood only by such as knew how almost morbidly sensitive was his nature, and how vital was his conscience. i became a pastor in the town where he lived, and renewed my association with him as far as i could. but there was a constraint unlike the old times. when under the influence of liquor, he would pass me in the streets with his head down, a deeper flush mantling his cheek as he hurried by with unsteady step. sometimes i met him staggering homeward through a back street, hiding from the gaze of men. he was at first shy of me when sober, but gradually the constraint wore off, and he seemed disposed to draw nearer to me, as in the old days. his struggle went on, days of drunkenness following weeks of soberness, his haggard face after each debauch wearing a look of unspeakable weariness and wretchedness. one of the lawyers who had led him into the mazes of doubt--a man of large and versatile gifts, whose lips were touched with a noble and persuasive eloquence--sunk deeper and deeper into the black depths of drunkenness, until the tragedy ended in a horror that lessened the gains of the saloons for at least a few days. he was found dead in his bed one morning in a pool of blood, his throat cut by his own guilty hand. my friend had married a lovely girl, and the cottage in which they lived was one of the coziest, and the garden in front was a little paradise of neatness and beauty. ah! i must drop a veil over a part of this true tale. all along i have written under half protest, the image of a sad, wistful face rising at times between my eyes and the sheet on which these words are traced. they loved each other tenderly and deeply, and both were conscious of the presence of the devil that was turning their heaven into hell. "save him, doctor, save him! he is the noblest of men, and the tenderest, truest husband. he loves you, and he will let you talk to him. save him, o save him! help me to pray for him! my heart will break!" poor child! her loving heart was indeed breaking; and her fresh young life was crushed under a weight of grief and shame too heavy to be borne. what he said to me in the interviews held in his sober intervals i have not the heart to repeat now. he still fought against his enemy; he still buffeted the billows that were going over him, though with feebler stroke. when their little child died, her tears fell freely, but he was like one stunned. stony and silent he stood and saw the little grave filled up, and rode away tearless, the picture of hopelessness. by a coincidence; after my return to san francisco, he came thither, and again became my neighbor at north beach. i went up to see him one evening. he was very feeble, and it was plain that the end was not far off. at the first glance i saw that a great change had taken place in him. he had found his lost self. the strong drink was shut out from him, and he was shut in with his better thoughts and with god. his religious life rebloomed in wondrous beauty and sweetness. the blossoms of his early joy had fallen off, the storms had torn its branches and stripped it of its foliage, but its root had never perished, because he had never ceased to struggle for deliverance. aspiration and hope live or die together in the human soul. the link that bound my friend to god was never wholly sundered. his better nature clung to the better way with a grasp that never let go altogether. "o doctor, i am a wonder to myself! it does seem to me that god has given back to me every good thing i possessed in the bright and blessed past. it has all come back to me. i see the light and feel the joy as i did when i first entered the new life. o it is wonderful! doctor, god never gave me up, and i never ceased to yearn for his mercy and love, even in the darkest season of my unhappy life?" his very face had recovered its old look, and his voice its old tone. there could be no doubt of this soul had rebloomed in the life of god. the last night came--they sent for me with the message, "come quickly! he is dying." i found him with that look which i have seen on the faces of others who were nearing death--a radiance and a rapture that awed the beholder. o solemn, awful mystery of death! i have stood in its presence in every form of terror and of sweetness, and in every case the thought has been impressed upon me that it was a passage into the great realities. "doctor," he said, smiling, and holding my hand; "i had hoped to be with you in your office again, as in the old days--not as a business arrangement, but just to be with you, and revive old memories, and to live the old life over again. but that cannot be, and i must wait till we meet in the world of spirits, whither i go before you. it seems to be growing dark. i cannot see your face hold my hand. i am going--going. i am on the waves--on the waves--." the radiance was still upon his face, but the hand i held no longer clasped mine-the wasted form was still. it was the end. he was launched upon the infinite sea for the endless voyage. the emperor norton. that was his title. he wore it with an air that was a strange mixture of the mock-heroic and the pathetic. he was mad on this one point, and strangely shrewd and well-informed on almost every other. arrayed in a faded-blue uniform, with brass buttons and epaulettes, wearing a cocked-hat with an eagle's feather, and at times with a rusty sword at his side, he was a conspicuous figure in the streets of san francisco, and a regular habitue of all its public places. in person he was stout, full-chested, though slightly stooped, with a large head heavily coated with bushy black hair, an aquiline nose, and dark gray eyes, whose mild expression added to the benignity of his face. on the end of his nose grew a tuft of long hairs, which he seemed to prize as a natural mark of royalty, or chieftainship. indeed, there was a popular legend afloat that he was of true royal blood--a stray bourbon, or something of the sort. his speech was singularly fluent and elegant. the emperor was one of the celebrities that no visitor failed to see. it is said that his mind was unhinged by a sudden loss of fortune in the early days, by the treachery of a partner in trade. the sudden blow was deadly, and the quiet, thrifty, affable man of business became a wreck. by nothing is the inmost quality of a man made more manifest than by the manner in which he meets misfortune. one, when the sky darkens, having strong impulse and weak will, rushes into suicide; another, with a large vein of cowardice, seeks to drown the sense of disaster in strong drink; yet another, tortured in every fiber of a sensitive organization, flees from the scene of his troubles and the faces of those that know him, preferring exile to shame. the truest man, when assailed by sudden calamity, rallies all the reserved forces of a splendid manhood to meet the shock, and, like a good ship, lifting itself from the trough of the swelling sea, mounts the wave and rides on. it was a curious idiosyncrasy that led this man, when fortune and reason were swept away at a stroke, to fall back upon this imaginary imperialism. the nature that could thus, when the real fabric of life was wrecked, construct such another by the exercise of a disordered imagination, must have been originally of a gentle and magnanimous type. the broken fragments of mind, like those of a statue, reveal the quality of the original creation. it may be that he was happier than many who have worn real crowns. napoleon at chiselhurst, or his greater uncle at st. helena, might have been gainer by exchanging lots with this man, who had the inward joy of conscious greatness without its burden and its perils. to all public places he had free access, and no pageant was complete without his presence. from time to time he issued proclamations, signed "norton i.," which the lively san francisco dailies were always ready to print conspicuously in their columns. the style of these proclamations was stately, the royal first person plural being used by him with all gravity and dignity. ever and anon, as his uniform became dilapidated or ragged, a reminder of the condition of the imperial wardrobe would be given in one or more of the newspapers, and then in a few days he would appear in a new suit. he had the entree of all the restaurants, and he lodged--nobody knew where. it was said that he was cared for by members of the freemason society to which he belonged at the time of his fall. i saw him often in my congregation in the pine-street church, along in 1858, and into the sixties. he was a respectful and attentive listener to preaching. on the occasion of one of his first visits he spoke to me after the service, saying, in a kind and patronizing tone: "i think it my duty to encourage religion and morality by showing myself at church, and to avoid jealousy i attend them all in turn." he loved children, and would come into the sunday-school, and sit delighted with their singing. when, in distributing the presents on a christmas-tree, a necktie was handed him as the gift of the young ladies, he received it with much satisfaction, making a kingly bow of gracious acknowledgment. meeting him one day, in the springtime, holding my little girl by the hand, he paused, looked at the child's bright face, and taking a rose-bud from his button-hole, he presented it to her with a manner so graceful, and a smile so benignant, as to show that under the dingy blue uniform there beat the heart of a gentleman. he kept a keen eye on current events, and sometimes expressed his views with great sagacity. one day he stopped me on the street, saying: "i have just read the report of the political sermon of dr.--(giving the name of a noted sensational preacher, who was in the habit, at times, of discussing politics from his pulpit). i disapprove political-preaching. what do you think?" i expressed my cordial concurrence. "i will put a stop to it. the preachers must stop preaching politics, or they must all come into one state church. i will at once issue a decree to that effect." for some unknown reason, that decree never was promulgated. after the war, he took a deep interest in the reconstruction of the southern states. i met him one day on montgomery street, when he asked me in a tone and with a look of earnest solicitude: "do you hear any complaint or dissatisfaction concerning me from the south?" i gravely answered in the negative. "i was for keeping the country undivided, but i have the kindest feeling for the southern people, and will see that they are protected in all their rights. perhaps if i were to go among them in person, it might have a good effect. what do you think?" i looked at him keenly as i made some suitable reply, but could see nothing in his expression but simple sincerity. he seemed to feel that he was indeed the father of his people. george washington himself could not have adopted a more paternal tone. walking along the street behind the emperor one day, my curiosity was a little excited by seeing him thrust his hand into the hip-pocket of his blue trousers with sudden energy. the hip-pocket, by the way, is a modern american stupidity, associated in the popular mind with rowdyism, pistol shooting, and murder. hip-pockets should be abolished wherever there are courts of law and civilized men and women. but what was the emperor after? withdrawing his hand just as i overtook him, the mystery was revealed--it grasped a thick bologna sausage, which he began to eat with unroyal relish. it gave me a shock, but he was not the first royal personage who has exhibited low tastes and carnal hankerings. he was seldom made sport of or treated rudely. i saw him on one occasion when a couple of passing hoodlums jeered at him. he turned and gave them a look so full of mingled dignity, pain, and surprise, that the low fellows were abashed, and uttering a forced laugh, with averted faces they hurried on. the presence that can bring shame to a san francisco hoodlum must indeed be kingly, or in some way impressive. in that genus the beastliness and devilishness of american city-life reach their lowest denomination when the brutality of the savage and the lowest forms of civilized vice are combined, human nature touches bottom. the emperor never spoke of his early life. the veil of mystery on this point increased the popular curiosity concerning him, and invested him with something of a romantic interest. there was one thing that excited his disgust and indignation. the bohemians of the san francisco press got into the practice of attaching his name to their satires and hits at current follies, knowing that the well-known "norton i." at the end would insure a reading. this abuse of the liberty of the press he denounced with dignified severity, threatening extreme measures unless it were stopped. but nowhere on earth did the press exhibit more audacity, or take a wider range, and it would have required a sterner heart and a stronger hand than that of norton i. to put a hook into its jaws. the end of all human grandeur, real or imaginary, comes at last. the emperor became thinner and more stooped as the years passed. the humor of his hallucination retired more and more into the background, and its pathetic side came out more strongly. his step was slow and feeble, and there was that look in his eyes so often seen in the old and sometimes in the young, just before the great change comes--a rapt, far-away look, suggesting that the invisible is coming into view, the shadows vanishing and the realities appearing. the familiar face and form were missed on the streets, and it was known that he was dead. he had gone to his lonely lodging, and quietly lain down and died. the newspapers spoke of him with pity and respect, and all san francisco took time, in the midst of its roar-and-rush fever of perpetual excitement, to give a kind thought to the dead man who had passed over to the life where all delusions are laid aside, where the mystery of life shall be revealed, and where we shall see that through all its tangled web ran the golden thread of mercy. his life was an illusion, and the thousands who sleep with him in lone mountain waiting the judgment-day were his brothers. camilla cain. she was from baltimore, and had the fair face and gentle voice peculiar to most baltimore women. her organization was delicate but elastic--one of the sort that bends easily, but is hard to break. in her eyes was that look of wistful sadness so often seen in holy women of her type. timid as a fawn, in the class-meeting she spoke of her love to jesus and delight in his service in a voice low and a little hesitating, but with strangely thrilling effect. the meetings were sometimes held in her own little parlor in the cottage on dupont street, and then we always felt that we had met where the master himself was a constant and welcome guest. she was put into the crucible. for more than fifteen years she suffered unceasing and intense bodily pain. imprisoned in her sick chamber, she fought her long, hard battle. the pain-distorted limbs lost their use, the patient face waxed more wan, and the traces of agony were on it always; the soft, loving eyes were often tear washed. the fires were hot, and they burned on through the long, long years without respite. the mystery of it all was too deep for me; it was too deep for her. but somehow it does seem that the highest suffer most: the sign of rank in nature is capacity for pain, and the anguish of the singer makes the sweetness of the strain. the victory of her faith was complete. if the inevitable why? sometimes was in her thought, no shadow of distrust ever fell upon her heart. her sick-room was the quietest, brightest spot in all the city. how often did i go thither weary and faint with the roughness of the way, and leave feeling that i had heard the voices and inhaled the odors of paradise! a little talk, a psalm, and then a prayer, during which the room seemed to be filled with angel-presences; after which the thin, pale face was radiant with the light reflected from our immanuel's face. i often went to see her, not so much to convey as to get a blessing. her heart was kept fresh as a rose of sharon in the dew of the morning. the children loved to be near her; and the pathetic face of the dear crippled boy, the pet of the family, was always brighter in her presence. thrice death came into the home-circle with its shock and mighty wrenchings of the heart, but the victory was not his, but hers. neither death nor life could separate her from the love of her lord. she was one of the elect. the elect are those who know, having the witness in themselves. she was conqueror of both--life with its pain and its weariness, death with its terror and its tragedy. she did not endure merely, she triumphed. borne on the wings of a mighty faith, her soul was at times lifted above all sin, and temptation, and pain, and the sweet, abiding peace swelled into an ecstasy of sacred joy. her swimming eyes and rapt look told the unutterable secret. she has crossed over the narrow stream on whose margin she lingered so long; and there was joy on the other side when the gentle, patient, holy camilla cain joined the glorified throng. o though oft depressed and lonely, all my fears are laid aside, if i but remember only such as these have lived and died! lone mountain. the sea-wind sweeps over the spot at times in gusts like the frenzy of hopeless grief, and at times in sighs as gentle as those heaved by aged sorrow in sight of eternal rest. the voices of the great city come faintly over the sand-hills, with subdued murmur like a lullaby to the pale sleepers that are here lying low. when the winds are quiet, which is not often, the moan of the mighty pacific can be heard day or night, as if it voiced in muffled tones the unceasing woe of a world under the reign of death. westward, on the summit of a higher hill, a huge cross stretches its arms as if embracing the living and the dead-the first object that catches the eye of the weary voyager as he nears the golden gate, the last that meets his lingering gaze as he goes forth upon the great waters. o sacred emblem of the faith with which we launch upon life's stormy main--of the hope that assures that we shall reach the port when the night and the tempest are past! when the winds are high, the booming of the breakers on the cliff sounds as if nature were impatient of the long, long delay, and had anticipated the last thunders that wake the sleeping dead. on a clear day, the blue pacific, stretching away beyond the snowy surf-line, symbolizes the shoreless sea that rolls through eternity. the cliff house road that runs hard by is the chief drive of the pleasure-seekers of san francisco. gayety, and laughter, and heart-break, and tears, meet on the drive; the wail of agony and the laugh of gladness mingle as the gay crowds dash by the slow-moving procession on its way to the grave. how often have i made that slow, sad journey to lone mountain--a via doloroso to many who have never been the same after they had gone thither, and coming back found the light quenched and the music bushed in their homes! thither the dead senator was borne, followed by the tramping thousands, rank on rank, amid the booming of minute-guns, the tolling of bells, the measured tread of plumed soldiers, and the roll of drums. thither was carried, in his rude coffin, the "unknown man" found dead in the streets, to be buried in potter's-field. thither was borne the hard and grasping idolater of riches, who clung to his coin, and clutched for more, until he was dragged away by the one hand that was colder and stronger than his own. here was brought the little child, out of whose narrow grave there blossomed the beginnings of a new life to the father and mother, who in the better life to come will be found among the blessed company of those whose only path to paradise lay through the valley of tears. here were brought the many wanderers, whose last earthly wish was to go back home, on the other side of the mountains, to die, but were denied by the stern messenger who never waits nor spares. and here was brought the mortal part of the aged disciple of jesus, in whose dying-chamber the two worlds met, and whose death-throes were demonstrably the birth of a child of god into the life of glory. the first time i ever visited the place was to attend the funeral of a suicide. the dead man i had known in virginia, when i was a boy. he was a graduate of the virginia military institute, and when i first knew him he was the captain of a famous volunteer company. he was as handsome as a picture--the admiration of the girls, and the envy of the young men of his native town. he was among the first who rushed to california on the discovery of gold, and of all the heroic men who gave early california its best bias none was knightlier than this handsome virginian; none won stronger friends, or had brighter hopes. he was the first state senator from san francisco. he had the magnetism that won and the nobility that retained the love of men. some men push themselves forward by force of intellect or of will--this man was pushed upward by his friends because he had their hearts. he married a beautiful woman, whom he loved literally unto death. i shall not recite the whole story. god only knows it fully, and he will judge righteously. there was trouble, rage, and tears, passionate partings and penitent reunions--the old story of love dying a lingering yet violent death. on the fatal morning i met him on washington street. i noticed his manner was hurried and his look peculiar, as i gave him the usual salutation and a hearty grasp of the hand. as be moved away, i looked after him with mingled admiration and pity, until his faultless figure turned the corner and disappeared. ten minutes afterward he lay on the floor of his room dead, with a bullet through his brain, his hair dabbled in blood. at the funeral-service, in the little church on pine street, strong men bowed their heads and sobbed. his wife sat on a front seat, pale as marble and as motionless, her lips compressed as with inward pain; but i saw no tears on the beautiful face. at the grave the body had been lowered to its resting-place, and all being ready, the attendants standing with uncovered heads, i was just about to begin the reading of the solemn words of the burial service, when a tall, blue-eyed man with gray side-whiskers pushed his way to the head of the grave, and in a voice choked with passion, exclaimed: "there lies as noble a gentleman as ever breathed, and he owes his death to that fiend!" pointing his finger at the wife, who stood pale and silent looking down into the grave. she gave him a look that i shall never forget, and the large steely-blue eyes flashed fire, but she spoke no word. i spoke: "whatever maybe your feelings, or whatever the occasion for them, you degrade yourself by such an exhibition of them here." "that is so, sir; excuse me, my feelings overcame me," he said, and retiring a few steps, he leaned upon a branch of a scrub-oak and sobbed like a child. the farce and the tragedy of real life were here exhibited on another occasion. among my acquaintances in the city were a man and his wife who were singularly mismatched. he was a plain, unlettered, devout man, who in a prayer-meeting or class-meeting talked with a simple-hearted earnestness that always produced a happy effect. she was a cultured woman, ambitious and worldly, and so fine-looking that in her youth she must have been a beauty and a belle. they lived in different worlds, and grew wider apart as time passed by--he giving himself to religion, she giving herself to the world. in the gay city circles in which she moved she was a little ashamed of the quiet, humble old man, and he did not feel at home among them. there was no formal separation, but it was known to the friends of the family that for months at a time they never lived together. the fashionable daughters went with their mother. the good old man, after a short sickness, died in great peace. i was sent for to officiate at the funeral-service. there was a large gathering of people, and a brave parade of all the externals of grief, but it was mostly dry-eyed grief, so far as i could see. at the grave, just as the sun that was sinking in the ocean threw his last rays upon the spot, and the first shovelful of earth fell upon the coffin that had been gently lowered to its resting-place, there was a piercing shriek from one of the carriages, followed by the exclamation: "what shall i do? how can i live? i have lost my all! o! o! o!" it was the dead man's wife. significant glances and smiles were interchanged by the bystanders. approaching the carriage in which the woman was sitting, i laid my hand upon her arm, looked her in the face, and said: "hush!" she understood me, and not another sound did she utter. poor woman! she was not perhaps as heartless as they thought she was. there was at least a little remorse in those forced exclamations, when she thought of the dead man in the coffin; but her eyes were dry, and she stopped very short. another incident recurs to me that points in a different direction. one day the most noted gambler in san francisco called on me with the request that i should attend the funeral of one of his friends, who had died the night before. a splendid-looking fellow was this knight of the faro-table. more than six feet in height, with deep chest and perfectly rounded limbs, jet black hair, brilliant black eyes, clear olive complexion, and easy manners, he might have been taken for an italian nobleman or a spanish don. he had a tinge of cherokee blood in his veins. i have noticed that this cross of the white and cherokee blood often results in producing this magnificent physical development. i have known a number of women of this lineage, who were very queens in their beauty and carriage. but this noted gambler was illiterate. the only book of which he knew or cared much was one that had fifty-two pages, with twelve pictures. if he had been educated, he might have handled the reins of government, instead of presiding over a nocturnal banking institution. "parson, can you come to number--, on kearney street, tomorrow at ten o'clock, and give us a few words and a prayer over a friend of mine, who died last night?" i promised to be there, and he left. his friend, like himself, had been a gambler. he was from new york. he was well educated, gentle in his manners, and a general favorite with the rough and desperate fellows with whom he associated, but with whom he seemed out of place. the passion for gambling had put its terrible spell on him, and be was helpless in its grasp. but though he mixed with the crowds that thronged the gambling-hells, he was one of them only in the absorbing passion for play. there was a certain respect shown him by all that venturesome fraternity. he went to frazer river during the gold excitement. in consequence of exposure and privation in that wild chase after gold, which proved fatal to so many eager adventurers, he contracted pulmonary disease, and came back to san francisco to die. he had not a dollar. his gambler friend took charge of him, placed him in a good boarding-place, hired a nurse for him, and for nearly a year provided for all his wants. newton. the miners called him the "wandering jew." that was behind his back. to his face they addressed him as father newton. he walked his circuits in the northern mines. no pedestrian could keep up with him, as with his long form bending forward, his immense yellow beard that reached to his breast floating in the wind, he strode from camp to camp with the message of salvation. it took a good trotting-horse to keep pace with him. many a stout prospector, meeting him on a highway, after panting and straining to bear him company, had to fall behind, gazing after him in wonder, as he swept out of sight at that marvelous gait. there was a glitter in his eye, and an intensity of gaze that left you in doubt whether it was genius or madness that it bespoke. it was, in truth, a little of both. he had genius. nobody ever talked with him, or heard him preach, without finding it out. the rough fellow who offended him at a camp-meeting, near "yankee jim's," no doubt thought him mad. he was making some disturbance just as the long bearded old preacher was passing with a bucket of water in his hand. "what do you mean?" he thundered, stopping and fixing his keen eye upon the rowdy. a rude and profane reply was made by the jeering sinner. quick as thought newton rushed upon him with flashing eye and uplifted bucket, a picture of fiery wrath that was too much for the thoughtless scoffer, who fled in terror amid the laughter of the crowd. the vanquished son of belial had no sympathy from anybody, and the plucky preacher was none the less esteemed because he was ready to defend his master's cause with carnal weapons. the early californians left scarcely any path of sin unexplored, and were a sad set of sinners, but for virtuous women and religion they never lost their reverence. both were scarce in those days, when it seemed to be thought that gold-digging and the decalogue could not be made to harmonize. the pioneer preachers found that one good woman made a better basis for evangelization than a score of nomadic bachelors. the first accession of a woman to a church in the mines was an epoch in its history. the church in the house of lydia was the normal type--it must be anchored to woman's faith, and tenderness, and love, in the home. he visited san francisco during my pastorate in 1858. on sunday morning he preached a sermon of such extraordinary beauty and power that at the night-service the house was crowded by a curious congregation, drawn thither by the report of the forenoon effort. his subject was the faith of the mother of moses, and he handled it in his own way. the powerful effect of one passage i shall never forget. it was a description of the mother's struggle, and the victory of her faith in the crisis of her trial. no longer able to protect her child, she resolves to commit him to her god. he drew a picture of her as she sat weaving together the grasses of the little ark of bulrushes, her hot tears falling upon her work, and pausing from time to time with her hand pressed upon her throbbing heart. at length, the little vessel is finished, and she goes by night to the bank of the nile, to take the last chance to save her boy from the knife of the murderers. approaching the river's edge, with the ark in her hands, she stoops a moment, but her mother's heart fails her. how can she give up her child? in frenzy of grief she sinks upon her knees, and lifting her gaze to the heavens, passionately prays to the god of israel. that prayer! it was the wail of a breaking heart, a cry out of the depths of a mighty agony. but as she prays the inspiration of god enters her soul, her eyes kindle, and her face beams with the holy light of faith. she rises, lifts the little ark, looks upon the sleeping face of the fair boy, prints a long, long kiss upon his brow, and then with a firm step she bends down, and placing the tiny vessel upon the waters, lets it go. "and away it went," he, said, "rocking upon the waves as it swept beyond the gaze of the mother's straining eyes. the monsters of the deep were there, the serpent of the nile was there, behemoth was there, but the child slept as sweetly and as safely upon the rocking waters as if it were nestled upon its mother's breast--for god was there!" the effect was electric. the concluding words, "for god was there!" were uttered with upturned face and lifted hands, and in a tone of voice that thrilled the hearers like a sudden clap of thunder from a cloud over whose bosom the lightnings had rippled in gentle flashes. it was true eloquence. in a revival meeting, on another occasion, he said, in a sermon of terrific power: "o the hardness of the human heart! yonder is a man in hell. he is told that there is one condition on which he may be delivered, and that is that lie must get the consent of every good being in the universe. a ray of hope enters his soul, and he sets out to comply with the condition. he visits heaven and earth, and finds sympathy and consent from all. all the holy angels consent to his pardon; all the pure and holy on earth consent; god himself repeats the assurance of his willingness that he maybe saved. even in hell, the devils do not object, knowing that his misery only heightens theirs. all are willing, all are ready--all but one man. he refuses; he will not consent. a monster of cruelty and wickedness, he refuses his simple consent to save a soul from an eternal hell! surely a good god and all good beings in the universe would turn in horror from such a monster. sinner, you are that man! the blessed god, the holy trinity, every angel in heaven, every good man and woman on earth, are not only willing but anxious that you shall be saved. but you will not consent. you refuse to come to jesus that you may have life. you are the murderer of your own immortal soul. you drag yourself down to hell. you lock the door of your own dungeon of eternal despair, and throw the key into the bottomless pit, by rejecting the lord that bought you with his blood! you will be lost! you must be lost! you ought to be lost." the words were something like these, but the energy, the passion, the frenzy of the speaker must be imagined. hard and stubborn hearts were moved under that thrilling appeal. they were made to feel that the preacher's picture of a self doomed soul described their own eases. there was joy in heaven that night over repenting sinners. this old man of the mountains was a walking encyclopedia of theological and other learning. he owned books that could not be duplicated in california; and he read them, digested their contents, and constantly surprised his cultivated bearers by the affluence of his knowledge, and the fertility of his literary and classic allusion. he wrote with elegance and force. his weak point was orthography. he would trip sometimes in the spelling of the most common words. his explanation of this weakness was curious: he was a printer in mobile, alabama. on one occasion a thirty-two-page book-form of small type was "pied." "i undertook,", said he, "to set that pied form to rights, and, in doing so, the words got so mixed in my brain that my spelling was spoiled forever!" he went to oregon, and traveled and preached from the cascade mountains to idaho, thrilling, melting, and amusing, in turn, the crowds that came out to hear the wild-looking man whose coming was so sudden, and whose going as so rapid, that they were lost in wonder, as if gazing at a meteor that flashed across the sky. he was a yankee from new hampshire, who, going to alabama, lost his heart, and was ever afterward intensely southern in all his convictions and affections. his fiery soul found congenial spirits among the generous, hotblooded people of the gulf states, whose very faults had a sort of charm for this impulsive, generous, erratic, gifted, man. he made his way back to his new england hills, where he is waiting for the sunset, often turning a longing eye southward, and now and then sending a greeting to alabama. the california politician. the california politician of the early days was plucky. he had to be so, for faint heart won no votes in those rough times. one of the marshalls (tom or ned--i forget which), at the beginning of a stump speech one night in the mines, was interrupted by a storm of hisses and execrations from a turbulent crowd of fellows, many of whom were full of whisky. he paused a moment, drew himself up to his full height, coolly took a pistol from his pocket, laid it on the stand before him, and said: "i have seen bigger crowds than this many a time. i want it to be fully understood that i came here to make a speech tonight, and i am going to do it, or else there will be a funeral or two." that touch took with that crowd. the one thing they all believed in was courage. marshall made one of his grandest speeches, and at the close the delighted miners bore him in triumph from the rostrum. that was a curious exordium of "uncle peter mehan," when he made his first stump-speech at sonora: "fellow-citizens, i was born an orphin at a very early period of my life." he was a candidate for supervisor, and the good-natured miners elected him triumphantly. he made a good supervisor, which is another proof that book-learning and elegant rhetoric are not essential where there are integrity and native good sense. uncle peter never stole any thing, and he was usually on the right side of all questions that claimed the attention of the county-fathers of tuolumne. in the early days, the virginians, new yorkers, and tennesseans, led in politics. trained to the stump at home, the virginians and tennesseans were ready on all occasions to run a primary-meeting, a convention, or a canvass. there was scarcely a mining-camp in the state in which there was not a leading local politician from one or both of these states. the new yorker understood all the inside management of party organization, and was up to all the smart tactics developed in the lively struggles of parties in the times when whiggery and democracy fiercely fought for rule in the empire state. broderick was a new yorker, trained by tammany in its palmy days. he was a chief, who rose from the ranks, and ruled by force of will. thick-set, strong-limbed, full-chested, with immense driving-power in his back-head, he was an athlete whose stalwart physique was of more value to him than the gift of eloquence, or even the power of money. the sharpest lawyers and the richest money-kings alike went down before this uncultured and moneyless man, who dominated the clans of san francisco simply by right of his manhood. he was not without a sort of eloquence of his own. he spoke right to the point, and his words fell like the thud of a shillalah; or rang like the clash of steel. he dealt with the rough elements of politics in an exciting and turbulent period of california politics, and was more of a border chief than an ivanhoe in his modes of warfare. he reached the united states senate, and in his first speech in that august body he honored his manhood by an allusion to his father, a stone mason, whose hands, said broderick, had helped to erect the very walls of the chamber in which he spoke. when a man gets as high as the united states senate, there is less tax upon his magnanimity in acknowledging his humble origin than while he is lower down the ladder. you seldom hear a man boast how low he began until he is far up toward the summit of his ambition. ninety-nine out of every hundred self-made men are at first more or less sensitive concerning their low birth; the hundredth man who is not is a man indeed. broderick's great rival was gwin. the men were antipodes in every thing except that they belonged to the same party. gwin still lives, the most colossal figure in the history of california. he looks the man he is. of immense frame, ruddy complexion, deep-blue eyes that almost blaze when he is excited, rugged yet expressive features, a massive bead crowned with a heavy suit of silver-white hair, he is marked by nature for leadership. common men seem dwarfed in his presence. after he had dropped out of california politics for awhile, a sacramento hotel-keeper expressed what many felt during a legislative session: "i find myself looking around for gwin. i miss the chief." my first acquaintance with dr. gwin began with, an incident that illustrates the man and the times. it was in 1856. the legislature was in session at sacramento, and a united states senator was to, be elected. i was making a tentative movement toward starting a southern methodist newspaper, and visited sacramento on that business. my friend major p. l. solomon was there, and took a friendly interest in my enterprise. he proposed to introduce me to the leading men of both parties, and i thankfully availed myself of his courtesy. among the first to whom he presented me was a noted politician who, both before and since, has enjoyed a national notoriety, and who still lives, and is as, ready as ever to talk or fight. his name i need not give. i presented to him my mission, and he seemed embarrassed. "i am with you, of course. my mother was a methodist, and all my sympathies are with the methodist church. i am a southern man in all my convictions and impulses, and i am a southern methodist in principle. but you see, sir, i am a candidate for united states senator, and sectional feeling is likely to enter into the contest, and if it were known that my name was on your list of subscribers, it might endanger my election." he squeezed my arm, told me he loved me and my church, said he would be happy to see me often, and so forth--but he did not give me his name. i left him, saying in my heart, here is a politician. going on together, in the corridor we met gwin. solomon introduced me, and told him my business. "i am glad to know that you are going to start a southern methodist newspaper. no church can do without its organ. put me down on your list, and come with me, and i will make all these fellows subscribe. there is not much religion among them, i fear, but we will make them take the paper." this was said in a hearty and pleasant way, and he took me from man to man, until i had gotten more than a dozen names, among them two or three of his most active political opponents. this incident exhibits the two types of the politician, and the two classes of men to be found in all communities--the one all "blarney" and selfishness, the other with real manhood redeeming poor human nature, and saving it from utter contempt. the senatorial prize eluded the grasp of both aspirants, but the reader will not be at a loss to guess whose side i was on. dr. gwin made a friend that day, and never lost him. it was this sort of fidelity to friends that, when fortune frowned on the grand old senator after the collapse at appomattox, rallied thousands of true hearts to his side, among whom were those who had fought him in many a fierce political battle. broderick and gwin were both, by a curious turn of political fortune, elected by the same legislature to the united states senate. broderick sleeps in lone mountain, and gwin still treads the stage of his former glory, a living monument of the days when california politics was half romance and half tragedy. the friend and protege of general andrew jackson, a member of the first constitutional convention of california, twice united states senator, a prominent figure in the civil war, the father of the great pacific railway, he is the front figure on the canvas of california history. gwin was succeeded by mcdougall. what a man was he! his face was as classic as a greek statue. it spoke the student and the scholar in every line. his hair was snow-white, his eyes bluish gray, and his form sinewy and elastic. he went from illinois, with baker and other men of genius, and soon won a high place at the bar of san francisco. i heard it said, by an eminent jurist, that when mcdougall had put his whole strength into the examination of a case, his side of it was exhausted. his reading was immense, his learning solid. his election was doubtless a surprise to himself as well as to the california public. the day before he left for washington city, i met him in the street, and as we parted i held his hand a moment, and said: "your friends will watch your career with hope and with fear." he knew what i meant, and said, quickly: "i understand you. you are afraid that i will yield to my weakness for strong drink. but you may be sure i will play the man, and california shall have no cause to blush on my account." that was his fatal weakness. no one, looking upon his pale, scholarly face, and noting his faultlessly neat apparel, and easy, graceful manners, would have thought of such a thing. yet he was a--i falter in writing it--a drunkard. at times he drank deeply and madly. when half intoxicated he was almost as brilliant as hamlet, and as rollicking as falstaff. it was said that even when fully drunk his splendid intellect never entirely gave way. "mcdougall commands as much attention in the senate when drunk as any other senator does when sober," said a congressman in washington in 1866. it is said that his great speech on the question of "confiscation," at the beginning of the war, was delivered when he was in a state of semi-intoxication. be that as it may, it exhausted the whole question, and settled the policy of the government. "no one will watch your senatorial career with more friendly interest than myself; and if you will abstain wholly from all strong drink, we shall all, be proud of you, i know." "not a drop will i touch, my friend; and i'll make you proud of me." he spoke feelingly, and i think there was a moisture about his eye as he pressed my hand and walked away. i never saw him again. for the first few months he wrote to me often, and then his letters came at longer intervals, and then they ceased. and then the newspapers disclosed the shameful secret california's brilliant senator was a drunkard. the temptations of the capital were too strong for him. he went down into the black waters a complete wreck. he returned to the old home of his boyhood in new jersey to die. i learned that he was lucid and penitent at the last. they brought his body back to san francisco to be buried, and when at his funeral the words "i know that my redeemer liveth," in clear soprano, rang through the vaulted cathedral like a peal of triumph, i indulged the hope that the spirit of my gifted and fated friend had, through the mercy of the friend of sinners, gone from his boyhood hills up to the hills of god. the typical california politician was coffroth. the "boys" fondly called him "jim" coffroth. there is no surer sign of popularity than a popular abbreviation of this sort, unless it is a pet nickname. coffroth was from pennsylvania, where he had gained an inkling of polities and general literature. he gravitated into california polities by the law of his nature. he was born for this, having what a friend calls the gift of popularity. his presence was magnetic; his laugh was contagious; his enthusiasm irresistible. nobody ever thought of taking offense at jim coffroth. he could change his politics with impunity without losing a friend--he never had a personal enemy; but i believe he only made that experiment once. he went off with the know-nothings in 1855, and was elected by them to the state senate, and was called to preside over their state convention. he hastened back to his old party associates, and at the first convention that met in his county on his return from the legislature, he rose and told them how lonesome he had felt while astray from the old fold, how glad he was to get back, and how humble he felt, concluding by advising all his late supporters to do as he had done by taking "a straight chute" for the old party. he ended amid a storm of applause, was reinstated at once, and was made president of the next democratic state convention. there he was in his glory. his tact and good humor were infinite, and he held those hundreds of excitable and explosive men in the hollow of his hand. he would dismiss a dangerous motion with a witticism so apt that the mover himself would join in the laugh, and give it up. his broad face in repose was that of a quaker, at other times that of a bacchus. there was a religious streak in this jolly partisan, and he published several poems that breathed the sweetest and loftiest religious sentiment. the newspapers were a little disposed to make a joke of these ebullitions of devotional feeling, but they now make the light that casts a gleam of brightness upon the background of his life. i take from an old volume of the christian spectator one of these poems as a literary curiosity. every man lives two lives. the rollicking politician, "jim coffroth," every californian knew; the author of these lines was another man by the same name: amid the silence of the night. "behold, he that keepeth israel shall neither slumber nor sleep." psalm cxxi. amid the silence of the night, amid its lonely hours and dreary, when we close the aching sight, musing sadly, lorn and weary, trusting that tomorrow's light may reveal a day more cheery; amid affliction's darker hour, when no hope beguiles our sadness, when death's hurtling tempests lower, and forever shroud our gladness, while grief's unrelenting power goads our stricken hearts to madness; when from friends beloved we're parted, and from scenes our spirits love, and are driven, broken-hearted, o'er a heartless world to rove; when the woes by which we've smarted, vainly seek to melt or move; when we trust and are deluded, when we love and are denied, when the schemes o'er which we brooded burst like mist on mountain's side, and, from every hope excluded, we in dark despair abide; then, and ever, god sustains us, he whose eye no slumber knows, who controls each throb that pains us, and in mercy sends our woes, and by love severe constrains us to avoid eternal throes. happy he whose heart obeys him! lost and ruined who disown! o if idols e'er displace him, tear them from his chosen throne! may our lives and language praise him! may our hearts be his alone! he took defeat with a good nature that robbed it of its sting, and made his political opponents half sorry for having beaten him. he was talked of for governor at one time, and he gave as a reason, why he would like the office that "a great many of his friends were in the state-prison, and he wanted to use the pardoning power in their behalf." this was a jest, of course, referring to the fact that as a lawyer much of his practice was in the criminal courts. he was never suspected of treachery or dishonor in public or private life. his very ambition was unselfish: he was always ready to sacrifice himself in a hopeless candidacy if he could thereby help his party or a friend. his good nature was tested once while presiding over a party convention at sonora for the nomination of candidates for legislative and county offices. among the delegates was the eccentric john vallew, whose mind was a singular compound of shrewdness and flightiness, and was stored with the most out-of-the-way scraps of learning, philosophy, and poetry. some one proposed vallew's name as a candidate for the legislature. he rose to his feet with a clouded face, and in an angry voice said: "mr. president, i am surprised and mortified. i have lived in this county more than seven years, and i have never had any difficulty with my neighbors. i did not know that i had an enemy in the world. what have i done, that it should be proposed to send me to the legislature? what reason has anybody to think i am that sort of a man? to think i should have come to this! to propose to send me to the legislature, when it is a notorious fact that you have never sent a man thither from this county who did not come back morally and pecuniarily ruined!" the crowd saw the point, and roared with laughter, coffroth, who had served in the previous session, joining heartily in the merriment. vallew was excused. coffroth grew fatter and jollier; his strong intellect struggled against increasing sensual tendencies. what the issue might have been, i know not. he died suddenly, and his destiny was transferred to another sphere. so there dropped out of california-life a partisan without bitterness, a satirist without malice, a wit without a sting, the jolliest, freest, readiest man that ever faced a california audience on the hustings--the typical politician of california. old man lowry. i had marked his expressive physiognomy among my hearers in the little church in sonora for some weeks before he made himself known to me. as i learned afterward, he was weighing the young preacher in his critical balances. he had a shrewd scotch face, in which there was a mingling of keenness, benignity, and humor. his age might be sixty, or it might be more. he was an old bachelor, and wide guesses are sometimes made as to the ages of that class of men. they may not live longer than married men, but they do not show the effects of life's wear and tear so early. he came to see us one evening. he fell in love with the mistress of the parsonage, just as he ought to have done, and we were charmed with the quaint old bachelor. there was a piquancy, a sharp flavor, in his talk that was delightful. his aphorisms often crystallized a neglected truth in a form all his own. he was an original character. there was nothing commonplace about him. he had his own way of saying and doing every thing. society in the mines was limited in that day, and we felt that we had found a real thesaurus in this old man of unique mold. his visits were refreshing to us, and his plain-spoken criticisms were helpful to me. he had left the church because he did not agree with the preachers on some points of christian ethics, and because they used tobacco. but he was unhappy on the outside, and finding that my views and habits did not happen to cross his peculiar notions, he came back. his religious experience was out of the common order. bred a calvinist, of the good old scotch-presbyterian type, he had swung away from that faith, and was in danger of rushing into universalism, or infidelity. that once famous and much-read little book, "john nelson's journal," fell into his hands, and changed his whole life. it led him to christ, and to the methodists. he was a true spiritual child of the unflinching yorkshire stone-cutter. like him he despised half-way measures, and like him he was aggressive in thought and action. what he liked he loved, what he disliked he hated. calvinism he abhorred, and he let no occasion pass for pouring into it the hot shot of his scorn and wrath. one night i preached from the text, should it be according to thy mind? "the first part of your sermon," he said to me as we passed out of the church, "distressed me greatly. for a full half hour you preached straight out calvinism, and i thought you had ruined every thing; but you had left a little slip-gap, and crawled out at the last." his ideal of a minister of the gospel was dr. keener, whom he knew at new orleans before coming to california. he was the first man i ever heard mention dr. keener's name for the episcopacy. there was much in common between them. if my eccentric california bachelor friend did not have as strong and cool a head, he had as brave and true a heart as the incisive and chivalrous louisiana preacher, upon whose head the miter was placed by the suffrage of his brethren at memphis in 1870. he became very active as a worker in the church. i made him class-leader, and there have been few in that office who brought to its sacred duties as much spiritual insight, candor, and tenderness. at times his words flashed like diamonds, showing what the bible can reveal to a solitary thinker who makes it his chief study day and night. when needful, he could apply caustic that burned to the very core of an error of opinion or of practice. he took a class in the sunday-school, and his freshness, acuteness, humor, and deep knowledge of the scriptures, made him far more than an ordinary teacher. a fine pocket bible was offered as a prize to the scholar who should, in three months, memorize the greatest number of scripture verses. the wisdom of such a contest is questionable to me now, but it was the fashion then, and i was too young and self-distrustful to set myself against the current in such matters. the contest was an exciting one--two boys, robert a--and jonathan r--, and one girl, annie p--, leading all the school. jonathan suddenly fell behind, and was soon distanced by his two competitors. lowry, who was his teacher, asked him what was the reason of his sudden breakdown. the boy blushed, and stammered out: "i didn't want to beat annie." robert won the prize, and the day came for its presentation. the house was full, and everybody was in a pleasant mood. after the prize had been presented in due form and with a little flourish, lowry arose, and producing a costly bible, in a few words telling how magnanimously and gallantly jonathan had retired from the contest, presented it to the pleased and blushing boy. the boys and girls applauded california fashion, and the old man's face glowed with satisfaction. he had in him curiously mingled the elements of the puritan and the cavalier--the uncompromising persistency of the one, and the chivalrous impulse and openhandedness of the other. the old man had too many crotchets and too much combativeness to be popular. he spared no opinion or habit he did not like. he struck every angle within reach of him. in the state of society then existing in the mines there were many things to vex his soul, and keep him on the warpath. the miners looked upon him as a brave, good man, just a little daft. he worked a mining-claim on wood's creek, north of town, and lived alone in a tiny cabin on the hill above. that was the smallest of cabins, looking like a mere box from the trail which wound through the flat below. two little scrub-oaks stood near it, under which he sat and read his bible in leisure moments. there, above the world, he could commune with his own heart and with god undisturbed, and look down upon a race he half pitied and half despised. from the spot the eye took in a vast sweep of hill and dale: bald mountain, the most striking object in the near background, and beyond its dark, rugged mass the snowy summits of the sierras, rising one above another, like gigantic stair-steps, leading up to the throne of the eternal. this lonely height suited lowry's strangely compounded nature. as a cynic, he looked down with contempt upon the petty life that seethed and frothed in the camps below; as a saint, he looked forth upon the wonders of god's handiwork around and above him. there was an intensity in all that he did. passing his mining-claim on horseback one day, i paused to look at him in his work. clad in a blue flannel mining-suit, he was digging as for life. the embankment of red dirt and gravel melted away rapidly before his vigorous strokes, and he seemed to feel a sort of fierce delight in his work. pausing a moment, he looked up and saw me. "you dig as if you were in a hurry," i said. "yes, i have been digging here three years. i have a notion that i have just so much of the earth to turn over before i am turned under," he replied with a sort of grim humor. he was still there when we visited sonora in 1857. he invited us out to dinner, and we went. by skillful circling around the hill, we reached the little cabin on the summit with horse and buggy. the old man had made preparations for his expected guests. the floor of the cabin had been swept, and its scanty store of furniture put to rights, and a dinner was cooking in and on the little stove. his lady-guest insisted on helping in the preparation of the dinner, but was allowed to do nothing further than to arrange the dishes on the primitive table, which was set out under one of the little oaks in the yard. it was a miner's feast--can-fruits, can-vegetables, can-oysters, can-pickles, can-every thing nearly, with tea distilled from the asiatic leaf by a receipt of his own. it was a hot day, and from the cloudless heavens the sun flooded the earth with his glory, and the shimmer of the sunshine was in the still air. we tried to be cheerful, but there was a pathos about the affair that touched us. he felt it too. more than once there was a tear in his eye. at parting, he kissed little paul, and gave us his hand in silence. as we drove down the hill, he stood gazing after us with a look fixed and sad. the picture is till before me the lonely old man standing sad and silent, the little cabin, the rude dinner-service under the oak, and the overarching sky. that was our last meeting. the next will be on the other side. suicide in california. a half protest rises within me as i begin this sketch. the page almost turns crimson under my gaze, and shadowy forms come forth out of the darkness into which they wildly plunged out of life's misery into death's mystery. ghostly lips cry out, "leave us alone! why call us back to a world where we lost all, and in quitting which we risked all? disturb us not to gratify the cold curiosity of unfeeling strangers. we have passed on beyond human jurisdiction to the realities we dared to meet. give us the pity and courtesy of your silence, o living brother, who didst escape the wreck!" the appeal is not without effect, and if i lift the shroud that covers the faces of these dead self-destroyed, it will be tenderly, pityingly. these simple sketches of real california life would be imperfect if this characteristic feature were entirely omitted; for california was (and is yet) the land of suicides. in a single year there were one hundred and six in san francisco alone. the whole number of suicides in the state would, if the horror of each case could be even imperfectly imagined, appall even the dryest statistician of crime. the causes for this prevalence of self-destruction are to be sought in the peculiar conditions of the country, and the habits of the people. california, with all its beauty, grandeur, and riches, has been to the many who have gone thither a land of great expectations, but small results. this was specially the case in the earlier period of its history, after the discovery of gold and its settlement by "americans," as we call ourselves, par excellence. hurled from the topmost height of extravagant hope to the lowest deep of disappointment, the shock is too great for reaction; the rope, razor, bullet, or deadly drug, finishes the tragedy. materialistic infidelity in california is the avowed belief of multitudes, and its subtle poison infects the minds and unconsciously the actions of thousands who recoil from the dark abyss that yawns at the feet of its adherents with its fascination of horror. under some circumstances, suicide becomes logical to a man who has neither hope nor dread of a hereafter. sins against the body, and especially the nervous system, were prevalent; and days of pain, sleepless nights, and weakened wills, were the precursors of the tragedy that promised change, if not rest. the devil gets men inside a fiery circle, made by their own sin and folly, from which there seems to be no escape but by death, and they will unbar its awful door with their own trembling hands. there is another door of escape for the worst and most wretched, and it is opened to the penitent by the hand that was nailed to the rugged cross. these crises do come, when the next step must be death or life-penitence or perdition. do sane men and women ever commit suicide? yes--and, no. yes, in the sense that they sometimes do it with even pulse and steady nerves. no, in the sense that there cannot be perfect soundness in the brain and heart of one who violates a primal instinct of human nature. each case has its own peculiar features, and must be left to the all-seeing and all-pitying father. suicide, where it is not the greatest of crimes, is the greatest of misfortunes. the righteous judge will classify its victims. a noted case in san francisco was that of a french catholic priest. he was young, brilliant, and popular--beloved by his flock, and admired by a large circle outside. he had taken the solemn vows of his order in all sincerity of purpose, and was distinguished as well for his zeal in his pastoral work as for his genius. but temptation met him, and he fell. it came in the shape in which it assailed the young hebrew in potiphar's house, and in which it overcame the poet-king of israel. he was seized with horror and remorse, though he had no accuser save that voice within, which cannot be hushed while the soul lives. he ceased to perform the sacred functions of his office, making some plausible pretext to his superiors, not daring to add sacrilege to mortal sin. shutting himself in his chamber, he brooded over his crime; or, no longer able to endure the agony he felt, he would rush forth, and walk for hours over the sand-dunes, or along the sea-beach. but no answer of peace followed his prayers, and the voices of nature soothed him not. he thought his sin unpardonable--at least, he would not pardon himself. he was found one morning lying dead in his bed in a pool of blood. he had severed the jugular-vein with a razor, which was still clutched in his stiffened fingers. his handsome and classic face bore no trace of pain. a sealed letter, lying on the table, contained his confession and his farewell. among the lawyers in one of the largest mining towns of california was h. b--. he was a native of virginia, and an alumnus of its noble university. he was a scholar, a fine lawyer, handsome and manly in person and bearing, and had the gift of popularity. though the youngest lawyer in the town, he took a front place at the bar at once. over the heads of several older aspirants, he was elected county judge. there was no ebb in the tide of his general popularity, and he had qualities that won the warmest regard of his inner circle of special friends. but in this case, as in many others, success had its danger. hard drinking was the rule in those days. horace b--had been one of the rare exceptions. there was a reason for this extra prudence. he had that peculiar susceptibility to alcoholic excitement which has been the ruin of so many gifted and noble men. he knew his weakness, and it is strange that he did not continue to guard against the danger that he so well understood. strange? no; this infatuation is so common in everyday life that we cannot call it strange. there is some sort of fatal fascination that draws men with their eyes wide open into the very jaws of this hell of strong drink. the most brilliant physician in san francisco, in the prime of his magnificent young manhood, died of delirium tremens, the victim of a self-inflicted disease, whose horrors no one knew or could picture so well as himself. who says man is not a fallen, broken creature, and that there is not a devil at hand to tempt him? this devil, under the guise of sociability, false pride, or moral cowardice, tempted horace b--, and he yielded. like tinder touched by flame, he blazed into drunkenness, and again and again the proud-spirited, manly, and cultured young lawyer and jurist was seen staggering along the streets, maudlin or mad with alcohol. when he had slept off his madness, his humiliation was intense, and he walked the streets with pallid face and downcast eyes. the coarser-grained men with whom he was thrown in contact had no conception of the mental tortures he suffered, and their rude jests stung him to the quick. he despised himself as a weakling and a coward, but he did not get more than a transient victory over his enemy. the spark had struck a sensitive organization, and the fire of hell, smothered for the time, would blaze out again. he was fast becoming a common drunkard, the accursed appetite growing stronger, and his will weakening in accordance with that terrible law by which man's physical and moral nature visits retribution on all who cross its path. during a term of the court over which he presided, he was taken home one night drunk. a pistol-shot was heard by persons in the vicinity some time before daybreak; but pistol-shots, at all hours of the night, were then too common to excite special attention. horace b--was found next morning lying on the floor with a bullet through his head. many a stout, heavy-bearded man had, wet eyes when the body of the ill-fated and brilliant young virginian was let down into the grave, which had been dug for him on the hill overlooking the town from the south-east. in the same town there was a portrait-painter, a quiet, pleasant fellow, with a good face and easy, gentlemanly ways. as an artist, he was not without merit, but his gift fell short of genius. he fell in love with a charming girl, the eldest daughter of a leading citizen. she could not return his passion. the enamored artist still loved, and hoped against hope, lingering near her like a moth around a candle. there was another and more favored suitor in the case, and the rejected lover had all his hopes killed at one blow by her marriage to his rival. he felt that without her life was not worth living. he resolved to kill himself, and swallowed the contents of a two-ounce bottle of laudanum. after he had done the rash deed, a reaction took place. he told what he had done, and a physician was sent for. before the doctor's arrival, the deadly drug asserted its power, and this repentant suicide began to show signs of going into a sleep from which it was certain he would never awake. "my god! what have i done?" he exclaimed in horror. "do your best, boys, to keep me from going to sleep before the doctor gets here." the doctor came quickly, and by the prompt and very vigorous use of the stomach-pump he was saved. i was sent for, and found the would-be suicide looking very weak, sick, silly, and sheepish. he got well, and went on making pictures; but the picture of the fair, sweet girl, for love of whom he came so near dying, never faded from his mind. his face always wore a sad look, and he lived the life of a recluse, but he never attempted suicide again--he had had enough of that. "it always makes me shudder to look at that place," said a lady, as we passed an elegant cottage on the western side of russian hill, san francisco. "why so? the place to me looks specially cheerful and attractive, with its graceful slope, its shrubbery, flowers, and thick greensward." "yes, it is a lovely place, but it has a history that it shocks me to think of. do you see that tall pumping-apparatus, with water-tank on top, in the rear of the house?" "yes; what of it?" "a woman hanged herself there a year ago. the family consisted of the husband and wife, and two bright, beautiful children. he was thrifty and prosperous, she was an excellent housekeeper, and the children were healthy and well-behaved. in appearance a happier family could not be found on the hill. one day mr. p--came home at the usual hour, and, missing the wife's customary greeting, he asked the children where she was. the children had not seen their mother for two or three hours, and looked startled when they found she was missing. messengers were sent to the nearest neighbors to make inquiries, but no one had seen her. mr. p ----'s face began to wear a troubled look as he walked the floor, from time to time going to the door and casting anxious glances about the premises. "about dusk a sudden shriek was heard, issuing from the water-tank in the yard, and the irish servant-girl came rushing from it, with eyes distended and face pale with terror. "holy mother of god! it's the missus that's hanged herself!" the alarm spread, and soon a crowd, curious and sympathetic, had collected. they found the poor lady suspended by the neck from a beam at the head of the staircase leading to the top of the inclosure. she was quite dead, and a horrible sight to see. at the inquest no facts were developed throwing any light on the tragedy. there had been no cloud in the sky portending the lightning stroke that laid the happy little home in ruins. the husband testified that she was as bright and happy the morning of the suicide as he had ever seen her, and had parted with him at the door with the usual kiss. every thing about the house that day bore the marks of her deft and skillful touch. the two children were dressed with accustomed neatness and, good taste. and yet the bolt was in the cloud, and it fell before the sun had set! what was the mystery? ever afterward i felt something of the feeling expressed by my lady friend when, in passing, i looked upon the structure which had been the scene of this singular tragedy. one of the most energetic business men living in one of the foothill towns, on the northern edge of the sacramento valley, had a charming wife, whom he loved with a deep and tender devotion. as in all true love-matches, the passion of youth had ripened into a yet stronger and purer love with the lapse of years and participation in the joys and sorrows of wedded life. their union had been blessed with five children, all intelligent, sweet, and full of promise. it was a very affectionate and happy household. both parents possessed considerable literary taste and culture, and the best books and current magazine literature were read, discussed, and enjoyed in that quiet and elegant home amid the roses and evergreens. it was a little paradise in the hills, where love, the home-angel, brightened every room and blessed every heart. but trouble came in the shape of business reverses; and the worried look and wakeful nights of the husband told how heavy were the blows that had fallen upon this hard and willing worker. the course of ruin in california was fearfully rapid in those days. when a man's financial supports began to give way, they went with a crash. the movement downward was with a rush that gave no time for putting on the brakes. you were at the bottom, a wreck, almost before you knew it. so it was in this case. every thing was swept away, a mountain of unpaid debts was piled up, credit was gone, clamor of creditors deafened him, and the gaunt wolf of actual want looked in through the door of the cottage upon the dear wife and little ones. another shadow, and a yet darker one, settled upon them. the unhappy man had been tampering with the delusion of spiritualism, and his wife had been drawn with him into a partial belief in its vagaries. in their troubles they sought the aid of the "familiar spirits" that peeped and muttered through speaking, writing, and rapping mediums. this kept them in a state of morbid excitement that increased from day to day until they were wrought up to a tension that verged on insanity. the lying spirits; or the frenzy of his own heated brain, turned his thought to death as the only escape from want. "i see our way out of these troubles, wife," he said one night, as they sat hand in hand in the bedchamber, where the children were lying asleep. "we will all die together! this has been revealed to me as the solution of all our difficulties. yes, we will enter the beautiful spirit-world together! this is freedom! it is only getting out of prison. bright spirits beckon and call us. i am ready." there was a gleam of madness in his eyes, and, as he took a pistol from a bureau-drawer, an answering gleam flashed forth from the eyes of the wife, as she said: "yes, love, we will all go together. i too am ready." the sleeping children were breathing sweetly, unmindful of the horror that the devil was hatching. "the children first, then you, and then me," he said, his eye kindling with increasing excitement. he penciled a short note addressed to one of his old friends, asking him to attend to the burial of the bodies, then they kissed each of the sleeping children, and then--but let the curtain fall on the scene that followed. the seven were found next day lying dead, a bullet through the brain of each, the murderer, by the side of the wife, still holding the weapon of death in his hand, its muzzle against his right temple. other pictures of real life and death crowd upon, my mind, among them noble forms and faces that were near and dear to me; but again i hear the appealing voices. the page before me is wet with tears--i cannot see to write. father fisher. he came to california in 1855. the pacific conference was in session at sacramento. it was announced that the new preacher from texas would preach at night. the boat was detained in some way, and he just had time to reach the church, where a large and expectant congregation were in waiting. below medium height, plainly dressed, and with a sort of peculiar shuffling movement as he went down the aisle, he attracted no special notice except for the profoundly reverential manner that never left him anywhere. but the moment he faced his audience and spoke, it was evident to them that a man of mark stood before them. they were magnetized at once, and every eye was fixed upon the strong yet benignant face, the capacious blue eyes, the ample forehead, and massive head, bald on top, with silver locks on either side. his tones in reading the scripture and the hymns were unspeakably solemn and very musical. the blazing fervor of the prayer that followed was absolutely startling to some of the preachers, who had cooled down under the depressing influence of the moral atmosphere of the country. it almost seemed as if we could hear the rush of the pentecostal wind, and see the tongues of flame. the very house seemed to be rocking on its foundations. by the time the prayer had ended, all were in a glow, and ready for the sermon. the text i do not now call to mind, but the impression made by the sermon remains. i had seen and heard preachers who glowed in the pulpit--this man burned. his words poured forth in a molten flood, his face shone like a furnace heated from within, his large blue eyes flashed with the lightning of impassioned sentiment, and anon swam in pathetic appeal that no heart could resist. body, brain, and spirit, all seemed to feel the mighty afflatus. his very frame seemed to expand, and the little man who had gone into the pulpit with shuffling step and downcast eyes was transfigured before us. when, with radiant face, upturned eyes, an upward sweep of his arm, and trumpet-voice, he shouted, "hallelujah to god!" the tide of emotion broke over all barriers, the people rose to their feet, and the church reechoed with their responsive hallelujahs. the new preacher from texas that night gave some californians a new idea of evangelical eloquence, and took his place as a burning and a shining light among the ministers of god on the pacific coast. "he is the man we want for san francisco!" exclaimed the impulsive b. t. crouch, who had kindled into a generous enthusiasm under that marvelous discourse. he was sent to san francisco. he was one of a company of preachers who have successively had charge of the southern methodist church in that wondrous city inside the golden gate--boring, evans, fisher, fitzgerald, gober, brown, bailey, wood, miller, ball, hoss, chamberlin, mahon, tuggle, simmons, henderson. there was an almost unlimited diversity of temperament, culture, and gifts among these men; but they all had a similar experience in this, that san francisco gave them new revelations of human nature and of themselves. some went away crippled and scarred, some sad, some broken; but perhaps in the great day it may be found that for each and all there was a hidden blessing in the heart-throes of a service that seemed to demand that they should sow in bitter tears, and know no joyful reaping this side of the grave. o my brothers, who have felt the fires of that furnace heated seven times hotter than usual, shall we not in the resting-place beyond the river realize that these fires burned out of us the dross that we did not know was in our souls? the bird that comes out of the tempest with broken wing may henceforth take a lowlier flight, but will be safer because it ventures no more into the region of storms. fisher did not succeed in san francisco, because he could not get a hearing. a little handful would meet him on sunday mornings in one of the upper-rooms of the old city hall, and listen to sermons that sent them away in a religious glow, but he had no leverage for getting at the masses. he was no adept in the methods by which the modern sensational preacher compels the attention of the novelty-loving crowds in our cities. an evangelist in every fiber of his being, he chafed under the limitations of his charge in san francisco, and from time to time he would make a dash into the country, where, at camp-meetings and on other special occasions, he preached the gospel with a power that broke many a sinner's heart, and with a persuasiveness that brought many a wanderer back to the good shepherd's fold. his bodily energy, like his religious zeal, was unflagging. it seemed little less than a miracle that he could, day after day, make such vast expenditure of nervous energy without exhaustion. he put all his strength into every sermon and exhortation, whether addressed to admiring and weeping thousands at a great camp-meeting, or to a dozen or less "standbys" at the saturday-morning service of a quarterly-meeting. he had his trials and crosses. those who knew him intimately learned to expect his mightiest pulpit efforts when the shadow on his face and the unconscious sigh showed that he was passing through the waters and crying to god out of the depths. in such experiences, the strong man is revealed and gathers new strength; the weak one goes under. but his strength was more than mere natural force of will, it was the strength of a mighty faith in god--that unseen force by which the saints work righteousness, subdue kingdoms, escape the violence of fire, and stop the mouths of lions. as a flame of fire, fisher itinerated all over california and oregon, kindling a blaze of revival in almost every place he touched. he was mighty in the scriptures, and seemed to know the book by heart. his was no rose-water theology. he believed in a hell, and pictured it in bible language with a vividness and awfulness that thrilled the stoutest sinner's heart; he believed in heaven, and spoke of it in such a way that it seemed that with him faith had already changed to sight. the gates of pearl, the crystal river, the shining ranks of the white-robed throngs, their songs swelling as the sound of many waters, the holy love and rapture of the glorified hosts of the redeemed, were made to pass in panoramic procession before the listening multitudes until the heaven he pictured seemed to be a present reality. he lived in the atmosphere of the supernatural; the spirit-world was to him most real. "i have been out of the body," he said to me one day. the words were spoken softly, and his countenance, always grave in its aspect, deepened in its solemnity of expression as he spoke. "how was that?" i inquired. "it was in texas. i was returning from a quarterly-meeting where i had preached one sunday morning with great liberty and with unusual effect. the horses attached to my vehicle became frightened, and ran away. they were wholly beyond control, plunging down the road at a fearful speed, when, by a slight turn to one side, the wheel struck a large log. there was a concussion, and then a blank. the next thing i knew i was floating in the air above the road. i saw every thing as plainly as i see your face at this moment. there lay my body in the road, there lay the log, and there were the trees, the fence, the fields, and every thing, perfectly natural. my motion, which had been upward, was arrested, and as, poised in the air, i looked at my body lying there in the road so still, i felt a strong desire to go back to it, and found myself sinking toward it. the next thing i knew i was lying in the road where i had been thrown out, with a number of friends about me, some holding up my head, others chafing my hands, or looking on with pity or alarm. yes, i was out of the body for a little, and i know there is a spirit-world." his voice had sunk into a sort of whisper, and the tears were in his eyes. i was strangely thrilled. both of us were silent for a time, as if we heard the echoes of voices, and saw the beckonings of shadowy hands from that other world which sometimes seems so far away, and yet is so near to each one of us. surely you heaven, where angels see god's face, is not so distant as we deem from this low earth. 'tis but a little space, 'tis but a veil the winds might blow aside; yes, this all that us of earth divide from the bright dwellings of the glorified, the land of which i dream. but it was no dream to this man of mighty faith, the windows of whose soul opened at all times godward. to him immortality was a demonstrated fact, an experience. he had been out of the body. intensity was his dominating quality. he wrote verses, and whatever they may have lacked of the subtle element that marks poetical genius, they were full of his ardent personality and devotional abandon. he compounded medicines whose virtues, backed by his own unwavering faith, wrought wondrous cures. on several occasions he accepted challenge to polemic battle, and his opponents found in him a fearless warrior, whose onset was next to irresistible. in these discussions it was no uncommon thing for his arguments to close with such bursts of spiritual power that the doctrinal duel would end in a great religious excitement, bearing disputants and hearers away on mighty tides of feeling that none could resist. i saw in the texas christian advocate an incident, related by dr. f. a. mood, that gives a good idea of what fisher's eloquence was when in full tide: "about ten years ago," says dr. m., "when the train from houston, on the central railroad, on one occasion reached hempstead, it was peremptorily brought to a halt. there was a strike among the employees of the road, on what was significantly called by the strikers 'the death-warrant.' the road, it seems, had required all of their employees to sign a paper renouncing all claims to moneyed reparation in case of their bodily injury while in the service of the road. the excitement incident to a strike was at its height at hempstead when our train reached there. the tracks were blocked with trains that had been stopped as they arrived from the different branches of the road, and the employees were gathered about in groups, discussing the situation--the passengers peering around with hopeless curiosity. when our train stopped, the conductor told us that we would have to lie over all night, and many of the passengers left to find accommodations in the hotels of the town. it was now night, when a man came into the car and exclaimed, 'the strikers are tarring and feathering a poor wretch out here, who has taken sides with the road--come out and see it!' nearly every one in the car hastened out. i had risen, when a gentleman behind me gently pulled my coat, and said to me, 'sit down a moment.' he went on to say: 'i judge, sir, you are a clergyman; and i advise you to remain here. you may be put to much inconvenience by having to appear as a witness; in a mob of that sort, too, there is no telling what may follow.' i thanked him, and resumed my seat. he then asked me to what denomination i belonged, and upon my telling him i was a methodist preacher, he asked eagerly and promptly if i had ever met a methodist preacher in texas by the name of fisher, describing accurately the appearance of our glorified brother. upon my telling him i knew him well, he proceeded to give the following incident. i give it as nearly as i can in his own words. said he: "'i am a californian, have practiced law for years in that state, and, at the time i allude to, was district judge. i was holding court at [i cannot now recall the name of the town he mentioned], and on saturday was told that a methodist camp-meeting was being held a few miles from town. i determined to visit it, and reached the place of meeting in good time to hear the great preacher of the occasion--father fisher. the meeting was held in a river canyon. the rocks towered hundreds of feet on either side, rising over like an arch. through the ample space over which the rocks hung the river flowed, furnishing abundance of cool water, while a pleasant breeze fanned a shaded spot. a great multitude had assembled--hundreds of very hard cases, who had gathered there, like myself, for the mere novelty of the thing. i am not a religious man --never have been thrown under religious influences. i respect religion, and respect its teachers, but have been very little in contact with religious things. at the appointed time, the preacher rose. he was small, with white hair combed back from his forehead, and he wore a venerable beard. i do not know much about the bible, and i cannot quote from his text, but he preached on the judgment. i tell you, sir, i have heard eloquence at the bar and on the hustings, but i never heard such eloquence as that old preacher gave us that day. at the last, when he described the multitudes calling on the rocks and mountains to fall on them, i instinctively looked up to the arching rocks above me. will you believe it, sir?--as i looked up, to my horror i saw the walls of the canyon swaying as if they were coming together! just then the preacher called on all that needed mercy to kneel down. i recollect he said something like this: "'every knee shall bow, and every tongue shall confess;' and you might as well do it now as then." the whole multitude fell on their knees--every one of them. although i had never done so before, i confess to you, sir, i got down on my knees. i did not want to be buried right then and there by those rocks that seemed to be swaying to destroy me. the old man prayed for us; it was a wonderful prayer! i want to see him once more; where will i be likely to find him?' "when he had closed his narrative, i said to him: 'judge, i hope you have bowed frequently since that day.' 'alas! no, sir,' he replied; 'not much; but depend upon it, father fisher is a wonderful orator--he made me think that day that the walls of the canyon were falling.'" he went back to texas, the scene of his early labors and triumphs, to die. his evening sky was not cloudless--he suffered much--but his sunset was calm and bright; his waking in the morning land was glorious. if it was at that short period of silence spoken of in the apocalypse, we may be sure it was broken when fisher went in. jack white. the only thing white about him was his name. he was a piute indian, and piutes are neither white nor pretty. there is only one being in human shape uglier than a piute "buck"--and that is a piute squaw. one i saw at the sink of the humboldt haunts me yet. her hideous face, begrimed with dirt and smeared with yellow paint, bleared and leering eyes, and horrid long, flapping breasts--ugh! it was a sight to make one feel sick. a degraded woman is the saddest spectacle on earth. shakespeare knew what he was doing when he made the witches in macbeth of the feminine gender. but as you look at them you almost forget that these piute hags are women--they seem a cross between brute and devil. the unity of the human race is a fact which i accept; but some of our brothers and sisters are far gone from original loveliness. if eve could see these piute women, she would not be in a hurry to claim them as her daughters; and adam would feel like disowning some of his sons. as it appears to me, however, these repulsive savages furnish an argument in support of two fundamental facts of christianity. one fact is, god did indeed make of one blood all the nations of the earth; the other is the fact of the fall and depravity of the human race. this unspeakable ugliness of these indians is owing to their evil living. dirty as they are, the little indian children are not at all repulsive in expression. a boy of ten years, who stood half-naked, shivering in the wind, with his bow and arrows, had well-shaped features and a pleasant expression of countenance, with just a little of the look of animal cunning that belongs to all wild tribes. the ugliness grows on these indians fearfully fast when it sets in. the brutalities of the lives they lead stamp themselves on their faces; and no other animal on earth equals in ugliness the animal called man, when he is nothing but an animal. there was a mystery about jack white's early life. he was born in the sagebrush desert beyond the sierras, and, like all indian babies, doubtless had a hard time at the outset. a christian's pig or puppy is as well cared for as a piute papoose. jack was found in a deserted indian camp in the mountains. he had been left to die, and was taken charge of by the kind hearted john m. white, who was then digging for gold in the northern mines. he and his good christian wife had mercy on the little indian boy that looked up at them so pitifully with his wondering black eyes. at first he had the frightened and bewildered look of a captured wild creature, but he soon began to be more at ease. he acquired the english language slowly, and never did lose the peculiar accent of his tribe. the miners called him jack white, not knowing any other name for him. moving to the beautiful san ramon valley, not far from the bay of san francisco, the whites took jack with them. they taught him the leading doctrines and facts of the bible, and made him useful in domestic service. he grew and thrived. broad-shouldered, muscular, and straight as an arrow, jack was admired for his strength and agility by the white boys with whom he was brought into contact. though not quarrelsome, he had a steady courage that, backed by his great strength, inspired respect and insured good treatment from them. growing up amid these influences, his features were softened into a civilized expression, and his tawny face was not unpleasing. the heavy under-jaw and square forehead gave him an appearance of hardness which was greatly relieved by the honest look out of his eyes, and the smile which now and then would slowly creep over his face, like the movement of the shadow of a thin cloud on a calm day in summer. an indian smiles deliberately, and in a dignified way--at least jack did. i first knew jack at santa rosa, of which beautiful town his patron, mr. white, was then the marshal. jack came to my sunday-school, and was taken into a class of about twenty boys taught by myself. they were the noisy element of the school, ranging from ten to fifteen years of age --too large to show the docility of the little lads, but not old enough to have attained the self-command and self-respect that come later in life. though he was much older than any of them, and heavier than his teacher, this class suited jack. the white boys all liked him, and he liked me. we had grand times with that class. the only way to keep them in order was to keep them very busy. the plan of having them answer in concert was adopted with decided results. it kept them awake and the whole school with them, for california boys have strong lungs. twenty boys speaking all at once, with eager excitement and flashing eyes, waked the drowsiest drone in the room. a gentle hint was given now and then to take a little lower key. in these lessons, jack's deep guttural tones came in with marked effect, and it was delightful to see how he enjoyed it all. and the singing made his swarthy features glow with pleasure, though he rarely joined in it, having some misgiving as to the melody of his voice. the truths of the gospel took strong hold of jack's mind, and his inquiries indicated a deep interest in the matter of religion. i was therefore not surprised when, during a protracted-meeting in the town, jack became one of the converts; but there was surprise and delight among the brethren at the class-meeting when jack rose in his place and told what great thing the lord had done for him, dwelling with special emphasis on the words, "i am happy, because i know jesus takes my sins away--i know he takes my sins away." his voice melted into softness, and a tear trickled down his cheek as he spoke; and when dan duncan, the leader, crossed over the room and grasped his hand in a burst of joy, there was a glad chorus of rejoicing methodists over jack white, the piute convert. jack never missed a service at the church, and in the social-meetings he never failed to tell the story of his newborn joy and hope, and always with thrilling effect, as he repeated with trembling voice, "i am happy, because i know jesus takes my sins away." sin was a reality with jack, and the pardon of sin the most wonderful of all facts. he never tired of telling it; it opened a new world to him, a world of light and joy. jack white in the class-meeting or prayer-meeting, with beaming face, and moistened eyes, and softened voice, telling of the love of jesus, seemed almost of a different race from the wretched piutes of the sierras and sagebrush. jack's baptism was a great event. it was by immersion, the first baptism of the kind i ever performed--and almost the last. jack had been talked to on the subject by some zealous brethren of another "persuasion," who magnified that mode, and though he was willing to do as i advised in the matter, he was evidently a little inclined to the more spectacular way of receiving the ordinance. mrs. white suggested that it might save future trouble, and "spike a gun." so jack, with four others, was taken down to santa rosa creek, that went rippling and sparkling along the southern edge of the town, and duly baptized in the name of the father, and of the son, and of the holy ghost. a great crowd covered the bridge just below, and the banks of the stream; and when wesley mock, the asaph of santa rosa methodism, struck up- o happy day that fixed my choice on thee, my saviour and my god, and the chorus- happy day, happy day, when jesus washed my sins away, was swelled by hundreds of voices, it was a glad moment for jack white and all of us. religiously it was a warm time; but the water was very cold, it being one of the chilliest days i ever felt in that genial climate. "you were rather awkward, brother fitzgerald, in immersing those persons," said my stalwart friend, elder john mccorkle, of the "christian" or campbellite church, who had critically but not unkindly watched the proceedings from the bridge. "if you will send for me the next time, i will do it for you," he added, pleasantly. i fear it was awkwardly done, for the water was very cold, and a shivering man cannot be very graceful in his movements. i would have done better in a baptistery, with warm water and a rubber suit. but of all the persons i have welcomed into the church during my ministry, the reception of no one has given use more joy than that of jack white, the piute indian. jack's heart yearned for his own people. he wanted to tell them of jesus, who could take away their sins; and perhaps his indian instinct made him long for the freedom of the hills. "i am going to my people," he said to me; "i want to tell them of jesus. you will pray for me?" he added, with a quiver in his voice and a heaving chest. he went away, and i have never seen him since. where he is now, i know not. i trust i may meet him on mount sion, with the harpers harping with their harps, and singing, as it were, a new song before the throne. postscript.--since this sketch was penciled, the rev. c. y. rankin, in a note dated santa rosa, california, august 3, 1880, says: "mrs. white asked me to send you word of the peaceful death of jack white (indian). he died trusting in jesus." the rabbi. seated in his library, enveloped in a faded figured gown, a black velvet cap on his massive head, there was an oriental look about him that arrested your attention at once. power and gentleness, childlike simplicity, and scholarliness, were curiously mingled in this man. his library was a reflex of its owner. in it were books that the great public libraries of the world could not match--black-letter folios that were almost as old as the printing art, illuminated volumes that were once the pride and joy of men who had been in their graves many generations, rabbinical lore, theology, magic, and great volumes of hebrew literature that looked, when placed beside a modern book, like an old ducal palace alongside a gingerbread cottage of today. i do not think he ever felt at home amid the hurry and rush of san francisco. he could not adjust himself to the people. he was devout, and they were intensely worldly. he thundered this sentence from the teacher's desk in the synagogue one morning: "o ye jews of san francisco, you have so fully given yourselves up to material things that you are losing the very instinct of immortality. your only idea of religion is to acquire the hebrew language, and you don't know that!" his port and voice were like those of one of the old hebrew prophets. elijah himself was not more fearless. yet, how deep was his love for his race! jeremiah was not more tender when he wept for the slain of the daughter of his people. his reproofs were resented, and he had a taste of persecution; but the jews of san francisco understood him at last. the poor and the little children knew him from the start. he lived mostly among his books, and in his school for poor children, whom he taught without charge. his habits were so simple and his bodily wants so few that it cost him but a trifle to live. when the synagogue frowned on him, he was as independent as elijah at the brook cherith. it is hard to starve a man to whom crackers and water are a royal feast. his belief in god and in the supernatural was startlingly vivid. the voice that spoke from sinai was still audible to him, and the arm that delivered israel he saw still stretched out over the nations. the miracles of the old testament were as real to him as the premiership of disraeli, or the financiering of the rothschilds. there was, at the same time, a vein of rationalism that ran through his thought and speech. we were speaking one day on the subject of miracles, and, with his usual energy of manner, he said: "there was no need of any literal angel to shut the mouths of the lions to save daniel; the awful holiness of the prophet was enough. there was so much of god in him that the savage creatures submitted to him as they did to unsinning adam. man's dominion over nature was broken by sin, but in the golden age to come it will be restored. a man in full communion with god wields a divine power in every sphere that he touches." his face glowed as he spoke, and his voice was subdued into a solemnity of tone that told how his reverent and adoring soul was thrilled with this vision of the coming glory of redeemed humanity. he knew the new testament by heart, as well as the old. the sayings of jesus were often on his lips. one day, in a musing, half-soliloquizing way, i heard him say: "it is wonderful, wonderful! a hebrew peasant from the hills of galilee, without learning, noble birth, or power, subverts all the philosophies of the world, and makes himself the central figure of all history. it is wonderful!" he half whispered the words, and his eyes had the introspective look of a man who is thinking deeply. he came to see me at our cottage on post street one morning before breakfast. in grading a street, a house in which i had lived and had the ill luck to own, on pine street, had been undermined, and toppled over into the street below, falling on the slate-roof and breaking all to pieces. he came to tell me of it, and to extend his sympathy. "i thought i would come first, so you might get the bad news from a friend rather than a stranger. you have lost a house; but it is a small matter. your little boy there might have put out his eye with a pair of scissors, or he might have swallowed a pin and lost his life. there are many things constantly taking place that are harder to bear than the loss of a house." many other wise words did the rabbi speak, and before he left i felt that a house was indeed a small thing to grieve over. he spoke with charming freedom and candor of all sorts of people. "of christians, the unitarians have the best heads, and the methodists the best hearts. the roman catholics hold the masses, because they give their people plenty of form. the masses will never receive truth in its simple essence; they must have it in a way that will make it digestible and assimilable, just as their, stomachs demand bread, and meats, and fruits, not their extracts or distilled essences, for daily food. as to judaism, it is on the eve of great changes. what these changes will be i know not, except that i am sure the god of our fathers will fulfill his promise to israel. this generation will probably see great things." "do you mean the literal restoration of the jews to palestine?" he looked at me with an intense gaze, and hastened not to answer. at last he spoke slowly: "when the perturbed elements of religious thought crystallize into clearness and enduring forms, the chosen people will be one of the chief factors in reaching that final solution of the problems which convulse this age." he was one of the speakers at the great mortara indignation-meeting in san francisco. the speech of the occasion was that of colonel baker, the orator who went to oregon, and in a single campaign magnetized the oregonians so completely by his splendid eloquence that, passing by all their old party leaders, they sent him to the united states senate. no one who heard baker's peroration that night will ever forget it. his dark eyes blazed, his form dilated, and his voice was like a bugle in battle. "they tell us that the jew is accursed of god. this has been the plea of the bloody tyrants and robbers that oppressed and plundered them during the long ages of their exile and agony. but the almighty god executes his own judgments. woe to him who presumes to wield his thunderbolts! they fall in blasting, consuming vengeance upon his own head. god deals with his chosen people in judgment; but he says to men, touch them at your peril! they that spoil them shall be for a spoil; they that carried them away captive shall themselves go into captivity. the assyrian smote the jew, and where is the proud assyrian empire? rome ground them under her iron heel, and where is the empire of the caesars? spain smote the jew, and where is her glory? the desert sands cover the site of babylon the great. the power that hurled the hosts of titus against the holy city jerusalem was shivered to pieces. the banners of spain, that floated in triumph over half the world, and fluttered in the breezes of every sea, is now the emblem of a glory that is gone, and the ensign of a power that has waned. the jews are in the hands of god. he has dealt with them in judgment, but they are still the children of promise. the day of their long exile shall end, and they will return to zion with songs and everlasting joy upon their heads!" the words were something like these, but who could picture baker's oratory? as well try to paint a storm in the tropics. real thunder and lightning cannot be put on canvas. the rabbi made a speech, and it was the speech of a man who had come from his books and prayers. he made a tender appeal for the mother and father of the abducted jewish boy, and argued the question as calmly, and in as sweet a spirit, as if he had been talking over an abstract question in his study. the vast crowd looked upon that strange figure with a sort of pleased wonder, and the rabbi seemed almost unconscious of their presence. he was as free from self-consciousness as a little child, and many a gentile heart warmed that night to the simple-hearted sage who stood before them pleading for the rights of human nature. the old man was often very sad. in such moods he would come round to our cottage on post street, and sit with us until late at night, unburdening his aching heart, and relaxing by degrees into a playfulness that was charming from its very awkwardness. he would bring little picture-books for the children, pat them on their heads, and praise them. they were always glad to see him, and would nestle round him lovingly. we all loved him, and felt glad in the thought that he left our little circle lighter at heart. he lived alone. once, when i playfully spoke to him of matrimony, he laughed quietly, and said: "no, no--my books and my poor schoolchildren are enough for me." he died suddenly and alone. he had been out one windy night visiting the poor, came home sick, and before morning was in that world of spirits which was so real to his faith, and for which he longed. he left his little fortune of a few thousand dollars to the poor of his native village of posen, in poland. and thus passed from california-life dr. julius eckman, the rabbi. my mining speculation. "i believe the lord has put me in the way of making a competency for my old age," said the dear old doctor, as he seated himself in the armchair reserved for him at the cottage at north beach. "how?" i asked. "i met a texas man today, who told me of the discovery of an immensely rich silver mining district in deep spring valley, mono county, and he says he can get me in as one of the owners." i laughingly made some remark expressive of incredulity. the honest and benignant face of the old doctor showed that he was a little nettled. "i have made full inquiry, and am sure this is no mere speculation. the stock will not be put upon the market, and will not be assessable. they propose to make me a trustee, and the owners, limited in number, will have entire control of the property. but i will not he hasty in the matter. i will make it a subject of prayer for twenty-four hours, and then if there be no adverse indications i will go on with it." the next day i met the broad-faced texan, and was impressed by him as the old doctor had been. it seemed a sure thing. an old prospector had been equipped and sent out by a few gentlemen, and he had found outcroppings of silver in a range of hills extending not less than three miles. assays had been made of the ores, and they were found to be very rich. all the timber and waterpower of deep spring valley had been taken up for the company under the general and local preemption and mining laws. it was a big thing. the beauty of the whole arrangement was that no "mining sharps" were to be let in; we were to manage it ourselves, and reap all the profits. we went into it, the old doctor and i, feeling deeply grateful to the broad-faced texan, who had so kindly given us the chance. i was made a trustee, and began to have a decidedly business feeling as such. at the meetings of "the board," my opinions were frequently called for, and were given with great gravity. the money was paid for the shares i had taken, and the precious evidences of ownership were carefully put in a place of safety. a mill was built near the richest of the claims, and the assays were good. there were delays, and more money was called for, and sent up. the assays were still good, and the reports from our superintendent were glowing. "the biggest thing in the history of california mining," he wrote; and when the secretary read his letter to the board, there was a happy expression on each face. at this point i began to be troubled. it seemed, from reasonable ciphering, that i should soon be a millionaire. it made me feel solemn and anxious. i lay awake at night, praying that i might not be spoiled by my good fortune. the scriptures that speak of the deceitfulness of riches were called to mind, and i rejoiced with trembling. many beneficent enterprises were planned, principally in the line of endowing colleges, and paying church-debts. (i had had an experience in this line.) there were further delays, and more money was called for. the ores were rebellious, and our "process" did not suit them. fryborg and deep spring valley were not the same. a new superintendent--one that understood rebellious ores--was employed at a higher salary. he reported that all was right, and that we might expect "big news" in a few days, as he proposed to crush about seventy tons of the best rock, "by a new and improved process." the board held frequent meetings, and in view of the nearness of great results did not hesitate to meet the requisitions made for further outlays of money. they resolved to pursue a prudent but vigorous policy in developing the vast property when the mill should be fairly in operation. all this time i felt an undercurrent of anxiety lest i might sustain spiritual loss by my sudden accession to great wealth, and continued to fortify myself with good resolutions. as a matter of special caution, i sent for a parcel of the ore, and had a private assay made of it. the assay was good. the new superintendent notified us that on a certain date we might look for a report of the result of the first great crushing and cleanup of the seventy tons of rock. the day came. on kearny street i met one of the stockholders--a careful presbyterian brother, who loved money. he had a solemn look, and was walking slowly, as if in deep thought. lifting his eyes as we met, he saw me, and spoke: "it is lead!" "what is lead?" "our silver mine in deep spring valley." yes; from the seventy tons of rock we got eleven dollars in silver, and about fifty pounds of as good lead as was ever molded into bullets. the board held a meeting the next evening. it was a solemn one. the fifty-pound bar of lead was placed in the midst, and was eyed reproachfully. i resigned my trusteeship, and they saw me not again. that was my first and last mining speculation. it failed somehow--but the assays were all very good. mike reese. i had business with him, and went at a business hour. no introduction was needed, for he had been my landlord, and no tenant of his ever had reason to complain that he did not get a visit from him, in person or by proxy, at least once a month. he was a punctual man--as a collector of what was due him. seeing that he was intently engaged, i paused and looked at him. a man of huge frame, with enormous hands and feet, massive head, receding forehead, and heavy cerebral development, full sensual lips, large nose, and peculiar eyes that seemed at the same time to look through you and to shrink from your gaze--he was a man at whom a stranger would stop in the street to get a second gaze. there he sat at his desk, too much absorbed to notice my entrance. before him lay a large pile of one-thousand-dollar united states government bonds, and he was clipping off the coupons. that face! it was a study as he sat using the big pair of scissors. a hungry boy in the act of taking into his mouth a ripe cherry, a mother gazing down into the face of her pretty sleeping child, a lover looking into the eyes of his charmer, are but faint figures by which to express the intense pleasure he felt in his work. but there was also a feline element in his joy--his handling of those bonds was somewhat like a cat toying with its prey. when at length he raised his head, there was a fierce gleam in his eye and a flush in his face. i had come upon a devotee engaged in worship. this was mike reese, the miser and millionaire. placing his huge left-hand on the pile of bonds, he gruffly returned my salutation, "good morning." he turned as he spoke, and east a look of scrutiny into my face which said plain enough that he wanted me to make known my business with him at once. i told him what was wanted. at the request of the official board of the minna-street church i had come to ask him to make a contribution toward the payment of its debt. "o yes; i was expecting you. they all come to me. father gallagher, of the catholic church, dr. wyatt, of the episcopal church, and all the others, have been here. i feel friendly to the churches, and i treat all alike--it won't do for me to be partial--i don't give to any!" that last clause was an anticlimax, dashing my hopes rudely; but i saw he meant it, and left. i never heard of his departing from the rule of strict impartiality he had laid down for himself. we met at times at a restaurant on clay street. he was a hearty feeder, and it was amusing to see how skillfully in the choice of dishes and the thoroughness with which he emptied them he could combine economy with plenty. on several of these occasions, when we chanced to sit at the same table, i proposed to pay for both of us, and he quickly assented, his hard, heavy features lighting up with undisguised pleasure at the suggestion, as he shambled out of the room amid the smiles of the company present, most of whom knew him as a millionaire, and me as a methodist preacher. he had one affair of the heart. cupid played a prank on him that was the occasion of much merriment in the san francisco newspapers, and of much grief to him. a widow was his enslaver and tormentor--the old story. she sued him for breach of promise of marriage. the trial made great fun for the lawyers, reporters, and the amused public generally; but it was no fun for him. he was mulcted for six thousand dollars and costs of the suit. it was during the time i was renting one of his offices on washington street. i called to see him, wishing to have some repairs made. his clerk met me in the narrow hall, and there was a mischievous twinkle in his eye as he said: "you had better come another day--the old man has just paid that judgment in the breach of promise case, and he is in a bad way." hearing our voices, he said, "who is there?--come in." i went in, and found him sitting leaning on his desk, the picture of intense wretchedness. he was all unstrung, his jaw fallen, and a most pitiful face met mine as he looked up and said, in a broken voice, "come some other day--i can do no business today; i am very unwell." he was indeed sick--sick at heart. i felt sorry for him. pain always excites my pity, no matter what may be its cause. he was a miser, and the payment of those thousands of dollars was like tearing him asunder. he did not mind the jibes of the newspapers, but the loss of the money was almost killing. he had not set his heart on popularity, but cash. he had another special trouble, but with a different sort of ending. it was discovered by a neighbor of his that, by some mismeasurement of the surveyors, he (reese) had built the wall of one of his immense business houses on front street six inches beyond his own proper line, taking in just so much of that neighbor's lot. not being on friendly terms with reese, his neighbor made a peremptory demand for the removal of the wall, or the payment of a heavy price for the ground. here was misery for the miser. he writhed in mental agony, and begged for easier terms, but in vain. his neighbor would not relent. the business men of the vicinity rather enjoyed the situation, humorously watching the progress of the affair. it was a case of diamond cut diamond, both parties bearing the reputation of being hard men to deal with. a day was fixed for reese to give a definite answer to his neighbor's demand, with notice that, in case of his noncompliance, suit against him would be begun at once. the day came, and with it a remarkable change in reese's tone. he sent a short note to his enemy breathing profanity and defiance. "what is the matter?" mused the puzzled citizen; "reese has made some discovery that makes him think he has the upper-hand, else he would not talk this way." and he sat and thought. the instinct of this class of men where money is involved is like a miracle. "i have it!" he suddenly exclaimed; "reese has the same hold on me that i have on him." reese happened to be the owner of another lot adjoining that of his enemy, on the other side. it occurred to him that, as all these lots were surveyed at the same time by the same party, it was most likely that as his line had gone six inches too far on the one side, his enemy's had gone as much too far on the other. and so it was. he had quietly a survey made of the premises, and he chuckled with inward joy to find that he held this winning card in the unfriendly game. with grim politeness the neighbors exchanged deeds for the two half feet of ground, and their war ended. the moral of this incident is for him who hath wit enough to see it. for several seasons he came every morning to north beach to take sea-baths. sometimes he rode his well-known white horse, but oftener he walked. he bathed in the open sea, making, as one expressed it, twenty-five tents out of the pacific ocean, by avoiding the bathhouse. was this the charm that drew him forth so early? it not seldom chanced that we walked downtown together. at times he was quite communicative, speaking of himself in a way that was peculiar. it seems he had thoughts of marrying before his episode with the widow. "do you think a young girl of twenty could love an old man like me?" he asked me one day, as we were walking along the street. i looked at his huge and ungainly bulk, and into his animal face, and made no direct answer. love! six millions of dollars is a great sum. money may buy youth and beauty, but love does not come at its call. god's highest gifts are free; only the second-rate things can be bought with money. did this sordid old man yearn for pure human love amid his millions? did such a dream cast a momentary glamour over a life spent in raking among the muck-heaps? if so, it passed away, for he never married. he understood his own case. he knew in what estimation he was held by the public, and did not conceal his scorn for its opinion. "my love of money is a disease. my saving and hoarding as i do is irrational, and i know it. it pains me to pay five cents for a streetcar ride, or a quarter of a dollar for a dinner. my pleasure in accumulating property is morbid, but i have felt it from the time i was a foot peddler in charlotte, campbell, and pittsylvania counties, in virginia, until now. it is a sort of insanity, and it is incurable; but it is about as good a form of madness as any, and all the world is mad in some, fashion." this was the substance of what he said of himself when in one of his moods of free speech, and it gave me a new idea of human nature--a man whose keen and penetrating brain could subject his own consciousness to a cool and correct analysis, seeing clearly the folly which he could not resist. the autobiography of such a man might furnish a curious psychological study, and explain the formation and development in society of those moral monsters called misers. nowhere in literature has such a character been fully portrayed, though shakespeare and george eliot have given vivid touches of some of its features. he always retained a kind feeling for the south, over whose hills he had borne his peddler's pack when a youth. after the war, two young ex-confederate soldiers came to san francisco to seek their fortunes. a small room adjoining my office was vacant, and the brothers requested me to secure it for them as cheap as possible. i applied to reese, telling him who the young men were, and describing their broken and impecunious condition. "tell them to take the room free of rent--but it ought to bring five dollars a month." it took a mighty effort, and he sighed as he spoke the words. i never heard of his acting similarly in any other case, and i put this down to his credit, glad to know that there was a warm spot in that mountain of mud and ice. a report of this generous act got afloat in the city, and many were the inquiries i received as to its truth. there was general incredulity. his health failed, and he crossed the seas. perhaps he wished to visit his native hills in germany, which he had last seen when a child. there he died, leaving all his millions to his kindred, save a bequest of one hundred and fifty thousand dollars to the university of california. what were his last thoughts, what was his final verdict concerning human life, i know not. empty-handed he entered the world of spirits, where, the film fallen from his vision, he saw the eternal realities. what amazement must have followed his awakening! uncle nolan. he was black and ugly; but it was an ugliness that did not disgust or repel you. his face had a touch both of the comic and the pathetic. his mouth was very wide, his lips very thick and the color of a ripe damson, blue-black; his nose made up in width what it lacked in elevation; his ears were big, and bent forward; his eyes were a dull white, on a very dark ground; his wool was white and thick. his age might be anywhere along from seventy onward. a black man's age, like that of a horse, becomes dubious after reaching a certain stage. he came to the class-meeting in the pine-street church, in san francisco, one sabbath morning. he asked leave to speak, which was granted. "bredren, i come here sometime ago, from vicksburg, mississippi, where i has lived forty year, or more. i heered dar was a culud church up on de hill, an' i thought i'd go an' washup wid'em. i went dar three or fo' sundays, but i foun' deir ways didn't suit me, an' my ways didn't suit dem. dey was yankees' niggers, an' [proudly] i's a southern man myself. sumbody tole me dar was a southern church down here on pine street, an' i thought i'd cum an' look in. soon 's i got inside de church, an' look roun' a minit, i feels at home. dey look like home-folks; de preacher preach like home-folks; de people sing like home-folks. yer see, chillan, i'se a southern man myself [emphatically], and i'se a southern methodis'. dis is de church i was borned in, an' dis is de church i was rarred in, an' [with great energy] dis is de church which de scripter says de gates ob hell shall not prevail ag'in it! ["amen!" from father newman and others.] when dey heerd i was comin' to dis church, some ob 'em got arter me 'bout it. dey say dis church was a enemy to de black people, and dat dey was in favor ob slavery. i tole 'em de scripter said, 'love your enemies,' an' den i took de bible an' read what it says about slavery--i can read some, chillun servants, obey yer masters in all things, not wid eye-service, as men-pleasers, but as unto de lord;' and so on. but, bless yer souls, chillun, dey wouldn't lis'en to dat --so i foun' out dey was abberlishem niggers, an' i lef' 'em.!" yes, he left them, and came to us. i received him into the church in due form, and with no little eclat, he being the only son of ham on our roll of members in san francisco. he stood firm to his southern methodist colors under a great pressure. "yer ought ter be killed fer goin' ter dat southern church," said one of his colored acquaintances one day, as they met in the street. "kill me, den," said uncle nolan, with proud humility; "kill me, den; yer can't cheat me out ob many days, nohow." he made a living, and something over, by rag-picking at north beach and elsewhere, until the chinese entered into competition with him, and then it was hard times for uncle nolan. his eyesight partially failed him, and it was pitiful to see him on the beach, his threadbare garments fluttering in the wind, groping amid the rubbish for rags, or shuffling along the streets with a huge sack on his back, and his old felt hat tied under his nose with a string, picking his way carefully to spare his swollen feet, which were tied up with bagging and woolens. his religious fervor never cooled; i never heard him complain. he never ceased to be joyously thankful for two things--his freedom and his religion. but, strange as it may seem, he was a pro-slavery man to the last. even after the war, he stood to his opinion. "dem niggers in de south thinks dey is free, but dey ain't. 'fore it's all ober, all dat ain't dead will be glad to git back to deir masters," he would say. yet he was very proud of his own freedom, and took the utmost care of his free-papers. he had no desire to resume his former relation to the peculiar and patriarchal institution. he was not the first philosopher who has had one theory for his fellows, and another for himself. uncle nolan would talk of religion by the hour. he never tired of that theme. his faith was simple and strong, but, like most of his race, he had a tinge of superstition. he was a dreamer of dreams, and he believed in them. here is one which he recited to me. his weird manner, and low, chanting tone, i must leave to the imagination of the reader: uncle nolan's dream. a tall black man came along, an' took me by de arm, an' tole me he had come for me. i said: "what yer want wid me?" "i come to carry yer down into de darkness." "what for?" "cause you didn't follow de lord." wid dat, he pulled me 'long de street till he come to a big black house, de biggest house an' de thickest walls i eber seed. we went in a little do', an' den he took me down a long sta'rs in de dark, till we come to a big do'; we went inside, an' den de big black man locked de do' behin' us. an' so we kep' on, goin' down, an' goin' down, an' goin' down, an' he kep' lockin' dem big iron do's behin' us, an' all de time it was pitch dark, so i couldn't see him, but he still hel' on ter me. at las' we stopped, an' den he started to go 'way. he locked de do' behin' him, an' i heerd him goin' up de steps de way we come, lockin' all de do's behin' him as he went. i tell you, dat was dreafful when i heerd dat big key turn on de outside, an' me 'way down, down, down dar in de dark all alone, an' no chance eber to git out! an' i knowed it was 'cause i didn't foller de lord. i felt roun' de place, an' dar was nothin' but de thick walls an' de great iron do'. den i sot down an' cried, 'cause i knowed i was a los' man. dat was de same as hell [his voice sinking into a whisper], an' all de time i knowed i was dar, 'cause i hadn't follered de lord. bymeby somethin' say, "pray." somethin' keep sayin', "pray." den i drap on my knees an' prayed. i tell you, no man eber prayed harder 'n i did! i prayed, an' prayed, an' prayed! what's dat? dar's somebody a-comin' down dem steps; dey 's unlockin' de do'; an' de fus' thing i knowed, de place was all lighted up bright as day, an' a white-faced man stood by me, wid a crown on his head, an' a golden key in his han'. somehow, i knowed it was jesus, an' right den i waked up all of a tremble, an' knowed it was a warnin' dat i mus' foller de lord. an', bless jesus, i has been follerin' him fifty year since i had dat dream. in his prayers, and class-meeting and love-feast talks, uncle nolan showed a depth of spiritual insight truly wonderful, and the effects of these talks were frequently electrical. many a time have i seen the pine-street brethren and sisters rise from their knees, at the close of one of his prayers, melted into tears, or thrilled to religious rapture, by the power of his simple faith, and the vividness of his sanctified imagination. he held to his pro-slavery views and guarded his own freedom-papers to the last; and when he died, in 1875, the last colored southern methodist in california was transferred from the church militant to the great company that no man can number, gathered out of every nation, and tribe, and kindred, on the earth. buffalo jones. that is what the boys called him. his real christian name was zachariah. the way he got the name he went by was this: he was a methodist, and prayed in public. he was excitable, and his lungs were of extraordinary power. when fully aroused, his voice sounded, it was said, like the bellowing of a whole herd of buffaloes. it had peculiar reverberations --rumbling, roaring, shaking the very roof of the sanctuary, or echoing among the hills when let out at its utmost strength at a camp-meeting. this is why they called him buffalo jones. it was his voice. there never was such another. in ohio he was a blacksmith and a fighting man. he had whipped every man who would fight him, in a whole tier of counties. he was converted after the old way; that is to say, he was "powerfully" converted. a circuit-rider preached the sermon that converted him. his anguish was awful. the midnight hour found him in tears. the ohio forest resounded with his cries for mercy. when he found peace, it swelled into rapture. he joined the church militant among the methodists, and he stuck to them, quarreled with them, and loved them, all his life. he had many troubles, and gave much trouble to many people. the old adam died hard in the fighting blacksmith. his pastor, his family, his friends, his fellow-members in the church, all got a portion of his wrath in due season, if they swerved a hair-breadth from the straight-line of duty as he saw it. i was his pastor, and i never had a truer friend, or a severer censor. one sunday morning he electrified my congregation, at the close of the sermon, by rising in his place and making a personal application of a portion of it to individuals present, and insisting on their immediate expulsion from the church. he had another side to his character, and at times was as tender as a woman. he acted as class-leader. in his melting moods he moved every eye to tears, as he passed round among the brethren and sisters, weeping, exhorting, and rejoicing. at such times, his great voice softened into a pathos that none could resist, and swept the chords of sympathy with resistless power. but when his other mood was upon him, he was fearful. he scourged the unfaithful with a whip of fire. he would quote with a singular fluency and aptness every passage of scripture that blasted hypocrites, reproved the lukewarm, or threatened damnation to the sinner. at such times his voice sounded like the shout of a warrior in battle, and the timid and wondering hearers looked as if they were in the midst of the thunder and lightning of a tropical storm. i remember the shock he gave a quiet and timid lady whom i had persuaded to remain for the class-meeting after service. fixing his stern and fiery gaze upon her, and knitting his great bushy eyebrows, he thundered the question: "sister, do you ever pray?" the startled woman nearly sprang from her seat in a panic as she stammered hurriedly, "yes, sir; yes, sir." she did not attend his class-meeting again. at a camp-meeting he was present, and in one of his bitterest moods. the meeting was not conducted in a way to suit him. he was grim, critical, and contemptuous, making no concealment of his dissatisfaction. the preaching displeased him particularly. he groaned, frowned, and in other ways showed his feelings. at length he could stand it no longer. a young brother had just closed a sermon of a mild and persuasive kind, and no sooner had he taken his seat than the old man arose. looking forth upon the vast audience, and then casting a sharp and scornful glance at the preachers in and around "the stand," he said: "you preachers of these days have no gospel in you. you remind me of a man going into his barnyard early in the morning to feed his stock. he has a basket on his arm, and here come the horses nickering, the cows lowing, the calves and sheep bleating, the hogs squealing, the turkeys gobbling, the hens clucking, and the roosters crowing. they all gather round him, expecting to be fed, and lo, his basket is empty! you take texts, and you preach, but you have no gospel. your baskets are empty." here he darted a defiant glance at the astonished preachers, and then, turning to one, he added in a milder and patronizing tone: "you, brother sim, do preach a little gospel in your basket there is one little nubbin!" down he sat, leaving the brethren to meditate on what he had said. the silence that followed was deep. at one time his conscience became troubled about the use of tobacco, and he determined to quit. this was the second great struggle of his life. he was running a sawmill in the foothills at the time, and lodged in a little cabin near by. suddenly deprived of the stimulant to which it had so long been accustomed, his nervous system was wrought up to a pitch of frenzy. he would rush from the cabin, climb along the hill-side, run leaping from rock to rock, now and then screaming like a maniac. then he would rush back to the cabin, seize a plug of tobacco, smell it, rub it against his lips, and away he would go again. he smelt, but never tasted it again. "i was resolved to conquer, and by the grace of god i did," he said. that was a great victory for the fighting blacksmith. when a melodeon was introduced into the church, he was sorely grieved and furiously angry. he argued against it, he expostulated, he protested, he threatened, he staid away from church. he wrote me a letter, in which he expressed his feelings thus: san jose, 1860. dear brother:--they have got the devil into the church now! put your foot on its tail and it squeals. z. jones. this was his figurative way of putting it. i was told that he had, on a former occasion, dealt with the question in a more summary way, by taking his ax and splitting a melodeon to pieces. neutrality in politics was, of course, impossible to such a man. in the civil war his heart was with the south. he gave up when stonewall jackson was killed. "it is all over--the praying man is gone," he said; and he sobbed like a child. from that day he had no hope for the confederacy, though once or twice, when feeling ran high, he expressed a readiness to use carnal weapons in defense of his political principles. for all his opinions on the subject he found support from the bible, which he read and studied with unwearying diligence. he took its words literally on all occasions, and the old testament history had a wonderful charm for him. he would have been ready to hew any modern agag in pieces before the lord. he finally found his way to the insane asylum. the reader has already seen how abnormal was his mind, and will not be surprised that his storm-tossed soul lost its rudder at last. but mid all its veerings he never lost sight of the star that had shed its light upon his checkered path of life. he raved, and prayed, and wept, by turns. the horrors of mental despair would be followed by gleams of seraphic joy. when one of his stormy moods was upon him, his mighty voice could be heard above all the sounds of that sad and pitiful company of broken and wrecked souls. the old class-meeting instinct and habit showed itself in his semi-lucid intervals. he would go round among the patients questioning them as to their religious feeling and behavior in true class-meeting style. dr. shurtleff one day overheard a colloquy between him and dr. rogers, a freethinker and reformer, whose vagaries had culminated in his shaving close one side of his immense whiskers, leaving the other side in all its flowing amplitude. poor fellow! pitiable as was his case, he made a ludicrous figure walking the streets of san francisco half shaved, and defiant of the wonder and ridicule he excited. the ex-class-leader's voice was earnest and loud, as he said: "now, rogers, you must pray. if you will get down at the feet of jesus, and confess your sins, and ask him to bless you, he will hear you, and give you peace. but if you won't do it," he continued, with growing excitement and kindling anger at the thought, "you are the most infernal rascal that ever lived, and i'll beat you into a jelly!" the good doctor had to interfere at this point, for the old man was in the very act of carrying out his threat to punish rogers bodily, on the bare possibility that he would not pray as he was told to do. and so that extemporized class-meeting came to an abrupt end. "pray with me," he said to me the last time i saw him at the asylum. closing the door of the little private office, we knelt side by side, and the poor old sufferer, bathed in tears, and docile as a little child, prayed to the once suffering, once crucified, but risen and interceding jesus. when he arose from his knees his eyes were wet, and his face showed that there was a great calm within. we never met again. he went home to die. the storms that had swept his soul subsided, the light of reason was rekindled, and the light of faith burned brightly; and in a few weeks he died in great peace, and another glad voice joined in the anthems of the blood-washed millions in the city of god. tod robinson. the image of this man of many moods and brilliant genius that rises most distinctly to my mind is that connected with a little prayer-meeting in the minna-street church, san francisco, one thursday night. his thin silver locks, his dark flashing eye, his graceful pose, and his musical voice, are before me. his words i have not forgotten, but their electric effect must forever be lost to all except the few who heard them. "i have been taunted with the reproach that it was only after i was a broken and disappointed man in my worldly hopes and aspirations that i turned to religion. the taunt is just"--here he bowed his head, and paused with deep emotion "the taunt is just. i bow my head in shame, and take the blow. my earthly hopes have faded and fallen one after another. the prizes that dazzled my imagination have eluded my grasp. i am a broken, gray-haired man, and i bring to my god only the remnant of a life. but, brethren, it is this very thought that fills me with joy and gratitude at this moment--the thought that when all else fails god takes us up. just when we need him most, and most feel our need of him, he lifts us up out of the depths where we had groveled, and presses us to his fatherly heart. this is the glory of christianity. the world turns from us when we fail and fall; then it is that the lord draws higher. such a religion must be from god, for its principles are god-like. it does not require much skill or power to steer a ship into port when her timbers are sound, her masts all rigged, and her crew at their posts; but the pilot that can take an old hulk, rocking on the stormy waves, with its masts torn away, its rigging gone, its planks loose and leaking, and bring it safe to harbor, that is the pilot for me. brethren, i am that hulk; and jesus is that pilot!" "glory be to jesus!" exclaimed father newman; as the speaker, with swimming eyes, radiant face, and heaving chest, sunk into his seat. i never heard any thing finer from mortal lips, but it seems cold to me as i read it here. oratory cannot be put on paper. he was present once at a camp-meeting, at the famous toll-gate camp-ground, in santa clara valley, near the city of san jose. it was sabbath morning, just such a one as seldom dawns on this earth. the brethren and sisters were gathered around "the stand" under the live-oaks for a speaking-meeting. the morning glory was on the summits of the santa cruz mountains that sloped down to the sacred spot, the lovely valley smiled under a sapphire sky, the birds hopped from twig to twig of the overhanging branches that scarcely quivered in the still air, and seemed to peer inquiringly into the faces of the assembled worshipers. the bugle-voice of bailey led in a holy song, and simmons led in prayer that touched the eternal throne. one after another, gray-haired men and saintly women told when and how they began the new life far away on the old hills they would never see again, and how they had been led and comforted in their pilgrimage. young disciples, in the flush of their first love, and the rapture of newborn hope, were borne out on a tide of resistless feeling into that ocean whose waters encircle the universe. the radiance from the heavenly hills was reflected from the consecrated encampment, and the angels of god hovered over the spot. judge robinson rose to his feet, and stepped into the altar, the sunlight at that moment falling upon his face. every voice was hushed, as, with the orator's indefinable magnetism, he drew every eye upon him. the pause was thrilling. at length he spoke: "this is a mount of transfiguration. the transfiguration is on hill and valley, on tree and shrub, on grass and flower, on earth and sky. it is on your faces that shine like the face of moses when he came down from the awful mount where be met jehovah face to face. the same light is on your faces, for here is god's shekinah. this is the gate of heaven. i see its shining hosts, i hear the melody of its songs. the angels of god encamped with us last night, and they linger with us this morning. tarry with us, ye sinless ones, for this is heaven on earth!" he paused, with extended arm, gazing upward entranced. the scene that, followed beggars description. by a simultaneous impulse all rose to their feet and pressed toward the speaker with awestruck faces, and when grandmother bucker, the matriarch of the valley, with luminous face and uplifted eyes, broke into a shout, it swelled into a melodious hurricane that shook the very hills. he ought to have been a preacher. so he said to me once: "i felt the impulse and heard the call in my early manhood. i conferred with flesh and blood, and was disobedient to the heavenly vision. i have had some little success at the bar, on the hustings, and in legislative halls, but how paltry has it been in comparison with the true life and high career that might have been mine!" he was from the hill-country of north carolina, and its flavor clung to him to the last. he had his gloomy moods, but his heart was fresh as a blue ridge breeze in may, and his wit bubbled forth like a mountain-spring. there was no bitterness in his satire. the very victim of his thrust enjoyed the keenness of the stroke, for there was no poison in the weapon. at times he seemed inspired, and you thrilled, melted, and soared, under the touches of this western coleridge. he came to my room at the golden eagle, in sacramento city, one night, and left at two o'clock in the morning. he walked the floor and talked, and it was the grandest monologue i ever listened to. one part of it i could not forget. it was with reference to preachers who turn aside from their holy calling to engage in secular pursuits, or in politics. "it is turning away from angels' food to feed on garbage. think of spending a whole life in contemplating the grandest things, and working for the most glorious ends, instructing the ignorant, consoling the sorrowing, winning the wayward back to duty and to peace, pointing the dying to him who is the light and the life of men, animating the living to seek from the highest motives a holy life and a sublime destiny! o it is a life that might draw an angel from the skies! if there is a special hell for fools, it should be kept for the man who turns aside from a life like this, to trade, or dig the earth, or wrangle in a court of law, or scramble for an office." he looked at me as he spoke, with flashing eyes and curled lip. "that is all true and very fine, judge, but it sounds just a little peculiar as coming from you." "i am the very man to say it, for i am the man who bitterly sees its truth. do not make the misstep that i did. a man might well be willing to live on bread and water, and walk the world afoot, for the privilege of giving all his thoughts to the grandest themes, and all his service to the highest objects. as a lawyer, my life has been spent in a prolonged quarrel about money, land, houses; cattle, thieving, slandering, murdering, and other villainy. the little episodes of politics that have given variety to my career have only shown me the baseness of human nature, and the pettiness of human ambition. there are men who will fill these places and do this work, and who want and will choose nothing better. let them have all the good they can get out of such things. but the minister of the gospel who comes down from the height of his high calling to engage in this scramble, does that which makes devils laugh and angels weep." this was the substance of what he said on this point. i have never forgotten it. i am glad he came to my room that night. what else he said i cannot write, but the remembrance of it is like to that of a melody that lingers in my soul when the music has ceased. "i thank you for your sermon today--you never told a single lie." this was his remark at the close of a service in minna street one sunday. "what is the meaning of that remark?" that the exaggerations of the pulpit repel thousands from the truth. moderation of statement is a rare excellence. a deep spiritual insight enables a religious teacher to shade his meanings where it is required. deep piety is genius for the pulpit. mediocrity in native endowments, conjoined with spiritual stolidity in the pulpit, does more harm than all the open apostles of infidelity combined. they take the divinity out of religion and kill the faith of those who hear them. none but inspired men should stand in the pulpit. religion is not in the intellect merely. the world by wisdom cannot know god. the attempt to find out god by the intellect has always been, and always must be, the completest of failures. religion is the sphere of the supernatural, and stands not in the wisdom of men, but in the power of god. it has often happened that men of the first order of talent and the highest culture have been converted by the preaching of men of weak intellect and limited education, but who were directly taught of god, and had drunk deep from the fount of living truth in personal experience of the blessed power of christian faith. it was through the intellect that the devil seduced the first pair. when we rest in the intellect only, we miss god. with the heart only can man believe unto righteousness. the evidence that satisfies is based on consciousness. consciousness is the satisfying demonstration. "eye hath not seen, nor ear heard, neither have entered into the heart of man, the things which god hath prepared for them that love him. but god hath revealed them unto us by his spirit. they can be revealed in no other way." here was the secret he had learned, and that had brought a new joy and glory into his life as it neared the sunset. the great change dated from a dark and rainy night as he walked home in sacramento city. not more tangible to saul of tarsus was the vision, or more distinctly audible the voice that spoke to him on the way to damascus, than was the revelation of jesus christ to this lawyer of penetrating intellect, large and varied reading, and sharp perception of human folly and weakness. it was a case of conversion in the fullest and divinest sense. he never fell from the wonder-world of grace to which he had been lifted. his youth seemed to be renewed, and his life had rebloomed, and its winter was turned into spring, under the touch of him who maketh all things new. he was a new man, and he lived in a new world. he never failed to attend the class-meetings, and in his talks there the flashes of his genius set religious truths in new lights, and the little band of methodists were treated to bursts of fervid eloquence, such as might kindle the listening thousands of metropolitan churches into admiration, or melt them into tears. on such occasions i could not help regretting anew that the world had lost what this man might have wrought had his path in life taken a different direction at the start. he died suddenly, and when in the city of los angeles i read the telegram announcing his death, i felt, mingled with the pain at the loss of a friend, exultation that before there was any reaction in his religious life his mighty soul had found a congenial home amid the supernal glories and sublime joys of the world of spirits. the moral of this man's life will be seen by him for whom this imperfect sketch has been penciled. ah lee. he was the sunniest of mongolians. the chinaman, under favorable conditions, is not without a sly sense of humor of his peculiar sort; but to american eyes there is nothing very pleasant in his angular and smileless features. the manner of his contact with many californians is not calculated to evoke mirthfulness. the brickbat may be a good political argument in the hands of a hoodlum, but it does not make its target playful. to the chinaman in america the situation is new and grave, and he looks sober and holds his peace. even the funny-looking, be-cued little chinese children wear a look of solemn inquisitiveness, as they toddle along the streets of san francisco by the side of their queer-looking mothers. in his own land, overpopulated and misgoverned, the chinaman has a hard fight for existence. in these united states his advent is regarded somewhat in the same spirit as that of the seventeen year locusts, or the cotton-worm. the history of a people may be read in their physiognomy. the monotony of chinese life during these thousands of years is reflected in the dull, monotonous faces of chinamen. ah lee was an exception. his skin was almost fair, his features almost caucasian in their regularity; his dark eye lighted up with a peculiar brightness, and there was a remarkable buoyancy and glow about him every way. he was about twenty years old. how long he had been in california i know not. when he came into my office to see me the first time, he rushed forward and impulsively grasped my hand, saying: "my name ah lee--you doctor plitzjellie?" that was the way my name sounded as he spoke it. i was glad to see him, and told him so. "you makee christian newspaper? you talkee jesus? mr. taylor tellee me. me christian--me love jesus." yes, ah lee was a christian; there could be no doubt about that. i have seen many happy converts, but none happier than he. he was not merely happy--he was ecstatic. the story of the mighty change was a simple one, but thrilling. near vacaville, the former seat of the pacific methodist college, in solano county, lived the rev. iry taylor, a member of the pacific conference of the methodist episcopal church, south. mr. taylor was a praying man, and he had a praying wife. ah lee was employed as a domestic in the family. his curiosity was first excited in regard to family prayers. he wanted to know what it all meant. the taylor's explained. the old, old story took hold of ah lee. he was put to thinking and then to praying. the idea of the forgiveness of sins filled him with wonder and longing. he hung with breathless interest upon the word of the lord, opening to him a world of new thought. the tide of feeling bore him on, and at the foot of the cross he found what he sought. ah lee was converted--converted as paul, as augustine, as wesley, were converted. he was born into a new life that was as real to him as his consciousness was real. this psychological change will be understood by some of my readers; others may regard it as they do any other inexplicable phenomenon in that mysterious inner world of the human soul, in which are lived the real lives of us all. in ah lee's heathen soul was wrought the gracious wonder that makes joy among the angels of god. the young chinese disciple, it is to be feared, got little sympathy outside the taylor household and a few others. the right-hand of christian fellowship was withheld by many, or extended in a cold, half-reluctant way. but it mattered not to ah lee; he had his own heaven. coldness was wasted on him. the light within him brightened every thing without. ah lee became a frequent visitor to our cottage on the hill. he always came and went rejoicing. the gospel of john was his daily study and delight. to his ardent and receptive nature it was a diamond mine. two things he wanted to do. he had a strong desire to translate his favorite gospel into chinese, and to lead his parents to christ. when he spoke of his father and mother his voice would soften, his eyes moisten with tenderness. "i go back to china and tellee my fader and mudder allee good news," he said, with beaming face. this peculiar development of filial reverence and affection among the chinese is a hopeful feature of their national life. it furnishes a solid basis for a strong christian nation. the weakening of this sentiment weakens religious susceptibility; its destruction is spiritual death. the worship of ancestors is idolatry, but it is that form of it nearest akin to the worship of the heavenly father. the honoring of the father and mother on earth is the commandment with promise, and it is the promise of this life and of life everlasting. there is an inter blending of human and divine loves; earth and heaven are unitary in companionship and destiny. the golden ladder rests on the earth and reaches up into the heavens. about twice a week ah lee came to see us at north beach. these visits subjected our courtesy and tact to a severe test. he loved little children, and at each visit he would bring with him a gayly-painted box filled with chinese sweetmeats. such sweetmeats! they were to strong for the palates of even young californians. what cannot be relished and digested by a healthy california boy must be formidable indeed. those sweetmeats were--but i give it up, they were indescribable! the boxes were pretty, and, after being emptied of their contents, they were kept. ah lee's joy in his new experience did not abate. under the touch of the holy spirit, his spiritual nature had suddenly blossomed into tropical luxuriance. to look at him made me think of the second chapter of the acts of the apostles. if i had had any lingering doubts of the transforming power of the gospel upon all human hearts, this conversion of ah lee would have settled the question forever. the bitter feeling against the chinese that just then found expression in california, through so many channels, did not seem to affect him in the least. he had his christianity warm from the heart of the son of god, and no caricature of its features or perversion of its spirit could bewilder him for a moment. he knew whom he had believed. none of these things moved him. o blessed mystery of god's mercy, that turns the night of heathen darkness into day, and makes the desert soul bloom with the flowers of paradise! o cross of the crucified! lifted up, it shall draw all men to their saviour! and o blind and slow of heart to believe! why could we not discern that this young chinaman's conversion was our lord's gracious challenge to our faith, and the pledge of success to the church that will go into all the world with the news of salvation? ah lee has vanished from my observation, but i have a persuasion that is like a burning prophecy that he will be heard from again. to me he types the blessedness of old china newborn in the life of the lord, and in his luminous face i read the prophecy of the redemption of the millions who have so long bowed before the great red dragon, but who now wait for the coming of the deliverer. the climate of california. had shakespeare lived in california, he would not have written of the "winter of our discontent," but would most probably have found in the summer of that then undiscovered country a more fitting symbol of the troublous times referred to; for, with the fogs, winds, and dust, that accompany the summer, or the "dry season," as it is more appropriately called in california, it is emphatically a season of discontent. in the mountains of the state only are these conditions not found. true, you will find dust even there as the natural consequence of the lack of rain; but that is not, of course, so bad in the mountains; and with no persistent, nagging wind to pick it up and fling it spitefully at you, you soon get not to mind it at all. but of summer in the coast country it is hard to speak tolerantly. the perfect flower of its unloveliness flourishes in san francisco, and, more or less hardily, all along the coast. from the time the rains cease--generally some time in may --through the six-months' period of their cessation, the programme for the day is, with but few exceptions, unvaried. fog in the morning --chilling, penetrating fog, which obscures the rays of the morning sun completely, and, dank and "clinging like cerements," swathes every thing with its soft, gray folds. on the bay it hangs, heavy and chill, blotting out everything but the nearest objects, and at a little distance hardly distinguishable from the water itself. at such times is heard the warning-cry of the foghorns at fort point, goat island, and elsewhere--a sound which probably is more like that popularly supposed to be produced by an expiring cow in her last agony than any thing else, but which is not like that or any thing in the world but a foghorn. the fog of the morning, however, gives way to the wind of the afternoon, which, complete master of the situation by three o'clock p.m., holds stormy sway till sunset. no gentle zephyr this, to softly sway the delicate flower or just lift the fringe on the maiden's brow, but what seamen call a "spanking breeze," that does not hesitate to knock off the hat that is not fastened tightly both fore and aft to the underlying head, or to fling sand and dust into any exposed eye, and which dances around generally among skirts and coat-tails with untiring energy and persistency. to venture out on the streets of san francisco at such times is really no trifling matter; and to one not accustomed to it, or to one of a non-combative disposition, the performance is not a pleasant one. still the streets are always full of hurrying passengers; for, whether attributable to the extra amount of vitality and vim that this bracing climate imparts to its children, or to a more direct and obvious cause, the desire to get indoors again as soon as possible, the fact remains the same--that the people of california walk faster than do those of almost any other country. not only men either, who with their coats buttoned up to their chins, and hats jammed tightly over their half-shut eyes, present a tolerably secure surface to the attacks of the wind, but their fairer sisters too can be seen, with their fresh cheeks and bright eyes protected by jaunty veils, scudding along in the face or the track of the wind, as the case may he, with wonderful skill and grace, looking as trim and secure as to rigging as the lightest schooner in full sail on their own bay. but it is after the sun has gone down from the cloudless sky, and the sea has recalled its breezes to slumber for the night, that the fulfillment of the law of compensation is made evident in this matter. the nights are of silver, if the days be not of gold. and all over the state this blessing of cool, comfortable nights is spread. at any season, one can draw a pair of blankets over him upon retiring, sure of sound, refreshing slumber, unless assailed by mental or physical troubles to which even this glorious climate of california cannot minister. the country here during this rainless season does not seem to the eastern visitor enough like what he has known as country in the summer to warrant any outlay in getting there. he must, however, understand that here people go to the country for precisely opposite reasons to those which influence eastern tourists to leave the city and betake themselves to rural districts. in the east, one leaves the crowded streets and heated atmosphere of the great city to seek coolness in some sylvan retreat. here, we leave the chilling winds and fogs of the city to try to get warm where they cannot penetrate. warm it may be; but the country at this season is not at its best as to looks. the flowers and the grass have disappeared with the rains, the latter, however, keeping in its dry, brown roots, that the sun scorches daily, the germ of all next winter's green. of the trees, the live-oak alone keeps to the summer livery of eastern forests. farther up in the mountain counties it is very different. no fairer summer could be wished for than that which reigns cloudless here; and with the sparkling champagne of that clear, dry air in his nostrils, our eastern visitor forgets even to sigh for a summer shower to lay the dreadful dust. and even in the valleys and around the bay, we must confess that some advantages arise from the no-rain-for-six-months policy. picnickers can set forth any day, with no fear of the fun of the occasion being wet-blanketed by an unlooked-for shower; and farmers can dispose of their crops according to convenience, often leaving their wheat piled up in the field, with no fear of danger from the elements. still we do get very tired of this long, strange summer, and the first rains are eagerly looked for and joyously welcomed. the fall of the first showers after such a long season of bareness and brownness is almost as immediate in its effects as the waving of a fairy's magic wand over cinderella, sitting ragged in the ashes and cinders. the change thus wrought is well described by a poet of the soil in a few picturesque lines: week by week the near hills whitened, in their dusty leather cloaks; week by week the far hills darkened, from the fringing plain of oaks; till the rains came, and far breaking, on the fierce south-wester tost, dashed the whole long coast with color, and then vanished and were lost. with these rains the grass springs up, the trees put out, and the winds disappear, leaving in the air a wonderful softness. in a month or two the flowers appear, and the hills are covered with a mantle of glory. bluebells, lupins, buttercups, and hosts of other blossoms, spring up in profusion; and, illuminating every thing, the wild california poppy lifts its flaming torch, typifying well, in its dazzling and glowing color, the brilliant minds and passionate hearts of the people of this land. all these bloom on through the winter, for this is a winter but in name. with no frost, ice, or snow, it is more like an eastern spring, but for the absence of that feeling of languor and debility which is so often felt in that season. true it rains a good deal, but by no means constantly, more often in the night; and it is this season of smiles and tears, this winter of flowers and budding trees, in which the glory of the california climate lies. certainly nothing could be more perfect than a bright winter day in that state. still, after all i could say in its praise, you would not know its full charm till you had felt its delicious breath on your own brow; for the peculiar freshness and exhilaration of the air are indescribable. sometimes in march, the dwellers on the bay are treated to a blow or two from the north, which is about as serious weather as the inhabitant of that favored clime ever experiences. after a night whose sleep has been broken by shrieks of the wind and the rattling of doors and windows, i wake with a dullness of head and sensitiveness of nerve that alone would be sufficient to tell me that the north wind had risen like a thief in the night, and had not, according to the manner of that class, stolen away before morning. on the contrary, he seems to be rushing around with an energy that betokens a day of it. i dress, and look out of my window. the bay is a mass of foaming, tossing waves, which, as they break on the beach just below, cast their spray twenty feet in air. all the little vessels have come into port, and only a few of the largest ships still ride heavily at their anchors. the hue separating the shallow water near the shore from the deeper waters beyond is much farther out than usual, and is more distinct. within its boundary, the predominant white is mixed with a dark, reddish brown; without, the spots of color are darkest green. the shy has been swept of every particle of cloud and moisture, and is almost painfully blue. against it, mounts tamalpais and diablo stand outlined with startling clearness. the hills and islands round the bay look as cold and uncomfortable in their robes of bright green as a young lady who has put on her spring-dress too soon. the streets and walks are swept bare, but still the air is filled with flying sand that cuts my face like needles, when, later, overcoated and gloved to the utmost, i proceed downtown. such days are nature's cleaning days, very necessary to future health and comfort, but, like all cleaning-days, very unpleasant to go through with. with her mightiest besom does the old lady sweep all the cobwebs from the sky, all the dirt and germs of disease from the ground, and remove all specks and impurities from her air-windows. one or two such "northers" finish up the season, effectually scaring away all the clouds, thus clearing the stage for the next act in this annual drama of two acts. this climate of california is perfectly epitomized in a stanza of the same poem before quoted: so each year the season shifted, wet and warm, and drear and dry, half a year-of cloud and flowers, half a year of dust and sky. after the storm. (penciled in the bay-window above the golden gate, north beach, san francisco, february 20, 1873.) all day the winds the sea had lashed, the fretted waves in anger dashed against the rocks in tumult wild above the surges roughly piled--no blue above, no peace below, the waves still rage, the winds still blow. dull and muffled the sunset gun tells that the dreary day is done; the sea-birds fly with drooping wing--chill and shadow on every thing--no blue above, no peace below, the waves still rage, the winds still blow. the clouds dispart; the sapphire dye in beauty spreads o'er the western sky, cloud-fires blaze o'er the gate of gold, gleaming and glowing, fold on fold--all blue above, all peace below, nor waves now rage, nor winds now blow. souls that are lashed by storms of pain, eyes that drip with sorrow's rain; hearts that burn with passion strong, bruised and torn, and weary of wrong--no light above, no peace within, battling with self, and torn by sin-hope on, hold on, the clouds will lift; god's peace will come as his own sweet gift, the light will shine at evening-time, the reflected beams of the sunlit clime, the blessed goal of the soul's long quest, where storms ne'er beat, and all are blest. bishop kavanaugh in california. he came first in 1856. the californians "took to" him at once. it was almost as good as a visit to the old home to see and hear this rosy-faced, benignant, and solid kentuckian. his power and pathos in the pulpit were equaled by his humor and magnetic charm in the social circle. many consciences were stirred. all hearts were won by him, and he holds them unto this day. we may hope too that many souls were won that will be stars in his crown of rejoicing in the day of jesus christ. at san jose, his quality as a preacher was developed by an incident that excited no little popular interest. the (northern) methodist conference was in session at that place, the venerable and saintly bishop scott presiding. bishop kavanaugh was invited to preach, and it so happened that he was to do so on the night following an appointment for bishop scott. the matter was talked of in the town, and not unnaturally a spirit of friendly rivalry was excited with regard to the approaching pulpit performances by the northern and southern bishops respectively. one enthusiastic but not pious kentuckian offered to bet a hundred dollars that kavanaugh would preach the better sermon. of course the two venerable men were unconscious of all this, and nothing of the kind was in their hearts. the church was thronged to hear bishop scott, and his humility, strong sense, deep earnestness, and holy emotion, made a profound and happy impression on all present. the church was again crowded the next night. among the audience was a considerable number of southerners--wild fellows, who were not often seen in such places, among them the enthusiastic kentuckian already alluded to. kavanaugh, after going through with the preliminary services, announced his text, and began his discourse. he seemed not to be in a good preaching mood. his wheels drove heavily. skirmishing around and around, he seemed to be reconnoitering his subject, finding no salient point for attack. the look of eager expectation in the faces of the people gave way to one of puzzled and painful solicitude. the heads of the expectant southerners drooped a little, and the betting kentuckian betrayed his feelings by a lowering of the under-jaw and sundry nervous twitchings of the muscles of his face. the good bishop kept talking, but the wheels revolved slowly. it was a solemn and "trying time" to at least a portion of the audience, as the bishop, with head bent over the bible and his broad chest stooped, kept trying to coax a response from that obstinate text. it seemed a lost battle. at last a sudden flash of thought seemed to strike the speaker, irradiating his face and lifting his form as he gave it utterance, with a characteristic throwing back of his shoulders and upward sweep of his arms. those present will never forget what followed. the afflatus of the true orator had at last fallen upon him; the mighty ship was launched, and swept out to sea under full canvas. old kentucky was on her feet that night in san jose. it was indescribable. flashes of spiritual illumination, explosive bursts of eloquent declamation, sparkles of chastened wit, appeals of overwhelming intensity, followed like the thunder and lightning of a southern storm. the church seemed literally to rock. "amens" burst from the electrified methodists of all sorts; these were followed by "hallelujahs" on all sides; and when the sermon ended with a rapturous flight of imagination, half the congregation were on their feet, shaking hands, embracing one another, and shouting. in the tremendous religious impression made, criticism was not thought of. even the betting kentuckian showed by his heaving breast and tearful eyes how far he was borne out of the ordinary channels of his thought and feeling. he came to sonora, where i was pastor, to preach to the miners. it was our second year in california, and the paternal element in his nature fell on us like a benediction. he preached three noble sermons to full houses in the little church on the red hillside, but his best discourses were spoken to the young preacher in the tiny parsonage. catching the fire of the old polemics that led to the battles of the giants in the west, he went over the points of difference between the arminiau and calvinistic schools of theology in a way that left a permanent deposit in a mind which was just then in its most receptive state. we felt very lonesome after he had left. it was like a touch of home to have him with us then, and in his presence we have had the feeling ever since. what a home will heaven be where all such men will be gathered in one company! it was a warm day when he went down to take the stage for mariposa. the vehicle seemed to be already full of passengers, mostly mexicans and chinamen. when the portly bishop presented himself, and essayed to enter, there were frowns and expressions of dissatisfaction. "mucho malo!" exclaimed a dark-skinned senorita, with flashing black eyes. "make room in there--he's got to go," ordered the bluff stage-driver, in a peremptory tone. there were already eight passengers inside, and the top of the coach was covered as thick as robins on a sumac-bush. the bishop mounted the step and surveyed the situation. the seat assigned him was between two mexican women, and as he sunk into the apparently insufficient space there was a look of consternation in their faces--and i was not surprised at it. but scrouging in, the newcomer smiled, and addressed first one and then another of his fellow-passengers with so much friendly pleasantness of manner that the frowns cleared away from their faces, even the stolid, phlegmatic chinamen brightening up with the contagious good humor of the "big mellican man." when the driver cracked his whip, and the spirited mustangs struck off in the california gallop --the early californians scorned any slower gait--everybody was smiling. staging in california in those days was often an exciting business. there were "opposition" lines on most of the thoroughfares, and the driving was furious and reckless in the extreme. accidents were strangely seldom when we consider the rate of speed, the nature of the roads, and the quantity of bad whisky consumed by most of the drivers. many of these drivers made it a practice to drink at every stopping-place. seventeen drinks were counted in one forenoon ride by one of these thirsty jehus. the racing between the rival stages was exciting enough. lashing the wiry little horses to full speed, there was but one thought, and that was, to "get in ahead." a driver named white upset his stage between montezuma and knight's ferry on the stanislaus, breaking his right-leg above the knee. fortunately none of the passengers were seriously hurt, though some of them were a little bruised and frightened. the stage was righted, white resumed the reins, whipped his horses into a run, and, with his broken limb hanging loose, ran into town ten minutes ahead of his rival, fainting as he was lifted from the seat. "old man holden told me to go in ahead or smash everything, and i made it!" exclaimed white, with professional pride. the bishop was fortunate enough to escape with unbroken bones as he dashed from point to point over the california hills and valleys, though that heavy body of his was mightily shaken up on many occasions. he came to california on his second visit, in 1863, when the war was raging. an incident occurred that gave him a very emphatic reminder that those were troublous times. he was at a camp-meeting in the san joaquin valley, near linden--a place famous for gatherings of this sort. the bishop was to preach at eleven o'clock, and a great crowd was there, full of high expectation. a stranger drove up just before the hour of service--a broad shouldered man in blue clothes, and wearing a glazed cap. he asked to see bishop kavanaugh privately for a few moments. they retired to "the preachers' tent," and the stranger said: "my name is jackson--colonel jackson, of the united states army. i have a disagreeable duty to perform. by order of general mcdowell, i am to place you under arrest, and take you to san francisco." "can you wait until i preach my sermon?" asked the bishop, good-naturedly; "the people expect it, and i don't want to disappoint them if it can be helped." "how long will it take you?" "well, i am a little uncertain when i get started, but i will try not to be too long." "very well; go on with your sermon, and if you have no objection i will be one of your hearers." the secret was known only to the bishop and his captor. the sermon was one of his best--the vast crowd of people were mightily moved, and the colonel's eyes were not dry when it closed. after a prayer, and a song, and a collection, the bishop stood up again before the people, and said: "i have just received a message which makes it necessary for me to return to san francisco immediately. i am sorry that i cannot remain longer, and participate with you in the hallowed enjoyments of the occasion. the blessing of god be with you, my brethren and sisters." his manner was so bland, and his tone so serene, that nobody had the faintest suspicion as to what it was that called him away so suddenly. when he drove off with the stranger, the popular surmise was that it was a wedding or a funeral that called for such haste. these are two events in human life that admit of no delays: people must be buried, and they will be married. the bishop reported to general mason, provost-marshal general, and was told to hold himself as in duress until further orders, and to be ready to appear at headquarters at short notice when called for. he was put on parole, as it were. he came down to san jose and stirred my congregation with several of his powerful discourses. in the meantime the arrest had gotten into the newspapers. nothing that happens escapes the california journalists, and they have even been known to get hold of things that never happened at all. it seems that someone in the shape of a man had made an affidavit that bishop kavanaugh had come to the pacific coast as a secret agent of the southern confederacy, to intrigue and recruit in its interest! five minutes' inquiry would have satisfied general mcdowell of the silliness of such a charge--but it was in war times, and he did not stop to make the inquiry. in kentucky the good old bishop had the freedom of the whole land, coming and going without hinderance; but the fact was, he had not been within the confederate lines since the war began. to make such an accusation against him was the climax of absurdity. about three weeks after the date of his arrest, i was with the bishop one morning on our way to judge moore's beautiful country-seat, near san jose, situated on the far-famed alameda. the carriage was driven by a black man named henry. passing the post-office, i found, addressed to the bishop in my care, a huge document bearing the official stamp of the provost-marshal's office, san francisco. he opened and read it as we drove slowly along, and as he did so he brightened up, and turning to henry, said: "henry, were you ever a slave?" "yes, sah; in mizzoory," said henry, showing his white teeth. "did you ever get your free-papers?" "yes, sah--got 'em now." "well, i have got mine--let's shake hands." and the bishop and henry had quite a handshaking over this mutual experience. henry enjoyed it greatly, as his frequent chucklings evinced while the judge's fine bays were trotting along the alameda. (i linger on the word alameda as i write it. it is at least one beneficent trace of the early jesuit fathers who founded the san jose and santa clara missions a hundred years ago. they planted an avenue of willows the entire three miles, and in that rich, moist soil the trees have grown until their trunks are of enormous size, and their branches, overarching the highway with their dense shade, make a drive of unequaled beauty and pleasantness. the horse-cars have now taken away much of its romance, but in the early days it was famous for moonlight drives and their concomitants and consequences. a long-limbed four-year-old california colt gave me a romantic touch of a different sort, nearly the last time i was on the alameda, by running away with the buggy, and breaking it and me--almost--to pieces. i am reminded of it by the pain in my crippled right-shoulder as i write these lines in july, 1881. but still i say, blessings on the memory of the fathers who planted the willows on the alameda!) an intimation was given the bishop that if he wanted the name of the false-swearer who had caused him to be arrested he could have it. "no, i don't want to know his name," said he; "it will do me no good to know it. may god pardon his sin, as i do most heartily!" a really strong preacher preaches a great many sermons, each of which the hearers claim to be the greatest sermon of his life. i have heard of at least a half dozen "greatest" sermons by bascom and pierce, and other noted pulpit orators. but i heard one sermon by kavanaugh that was probably indeed his master-effort. it had a history. when the bishop started to oregon, in 1863, i placed in his hands bascom's lectures, which, strange to say, he had never read. of these lectures the elder dr. bond said "they would be the colossal pillars of bascom's fame when his printed sermons were forgotten." those lectures wonderfully anticipated the changing phases of the materialistic infidelity developed since his day, and applied to them the reductio ad absurdum with relentless and resistless power. on his return from oregon, kavanaugh met and presided over the annual conference at san jose. one of his old friends, who was troubled with skeptical thoughts of the materialistic sort, requested him to preach a sermon for his special benefit. this request, and the previous reading of the lectures, directed his mind to the topic suggested with intense earnestness. the result was, as i shall always think, the sermon of a lifetime. the text was, there is a spirit in man; and the inspiration of the almighty giveth them understanding. (job xxxii. 8.) that mighty discourse was a demonstration of the truth of the affirmation of the text. i will not attempt to reproduce it here, though many of its passages are still vivid in my memory. it tore to shreds the sophistries by which it was sought to sink immortal man to the level of the brutes that perish; it appealed to the consciousness of his hearers in red-hot logic that burned its way to the inmost depths of the coldest and hardest hearts; it scintillated now and then sparkles of wit like the illuminated edges of an advancing thundercloud; borne, on the wings of his imagination, whose mighty sweep took him beyond the bounds of earth, through whirling worlds and burning suns, he found the culmination of human destiny, in the bosom of eternity, infinity, and god. the peroration was indescribable. the rapt audience reeled under it. inspiration! the man of god was himself its demonstration, for the power of his word was not his own. "o i thank god that be sent me here this day to hear that sermon! i never heard any thing like it, and i shall never forget it, or cease to be thankful that i heard it," said the rev. dr. charles wadsworth, of philadelphia, the great presbyterian preacher--a man of genius, and a true prose-poet, as any one will concede after reading his published sermons. as he spoke, the tears were in his eyes, the muscles of his face quivering, and his chest heaving with irrepressible emotion. nobody who heard that discourse will accuse me of too high coloring in this brief description of it. "don't you wish you were a kentuckian?" was the enthusiastic exclamation of a lady who brought from kentucky a matchless wit and the culture of science hill academy, which has blessed and brightened so many homes from the ohio to the sacramento. i think the bishop was present on another occasion when the compliment he received was a left-handed one. it was at the stone church in suisun valley. the bishop and a number of the most prominent ministers of the pacific conference were present at a saturday-morning preaching appointment. they had all been engaged in protracted labors, and, beginning with the bishop, one after another declined to preach. the lot fell at last upon a boyish-looking brother of very small stature, who labored under the double disadvantage of being a very young preacher, and of having been reared in the immediate vicinity. the people were disappointed and indignant when they saw the little fellow go into the pulpit. none showed their displeasure more plainly than uncle ben brown, a somewhat eccentric old brother, who was one of the founders of that society, and one of its best official members. he sat as usual on a front seat, his thick eyebrows fiercely knit, and his face wearing a heavy frown. he had expected to hear the bishop, and this was what it had come to! he drew his shoulders sullenly down, and, with his eyes bent upon the floor, nursed his wrath. the little preacher began his sermon, and soon astonished everybody by the energy with which he spoke. as he proceeded, the frown on uncle ben's face relaxed a little; at length he lifted his eyes and glanced at the speaker in surprise. he did not think it was in him. with abnormal fluency and force, the little preacher went on with the increasing sympathy of his audience, who were feeling the effects of a generous reaction in his favor. uncle ben, touched a little with honest obstinacy as he was, gradually relaxed in the sternness of his looks, straightening up by degrees until he sat upright facing the speaker in a sort of half-reluctant, pleased wonder. just at the close of a specially vigorous burst of declamation, the old man exclaimed, in a loud voice: "bless god! he uses the weak things of this world to confound the mighty!" casting around a triumphant glance at the bishop and other preachers. this impromptu remark was more amusing to the hearers than helpful to the preacher, i fear; but it was away the dear old brother had of speaking out in meeting. i must end this sketch. i have dipped my pen in my heart in writing it. the subject of it has been friend, brother, father, to me since the day he looked in upon us in the little cabin on the hill in sonora, in 1855. when i greet him on the hills of heaven, he will not be sorry to be told that among the many in the far west to whom he was helpful was the writer of this too imperfect sketch. sanders. he belonged to the church militant. in looks he was a cross between a grenadier and a trappist. but there was more soldier than monk in his nature. he was over six feet high, thin as a bolster, and straight as a long-leaf pine. his anatomy was strongly conspicuous. he was the boniest of men. there were as many angles as inches in the lines of his face. his hair disdained the persuasions of comb or brush, and rose in tangled masses above a head that would have driven a phrenologist mad. it was a long head in every sense. his features were strong and stern, his nose one that would have delighted the great napoleon--it was a grand organ. you said at once, on looking at him, here is a man that fears neither man nor devil. the face was an honest face. when you looked into those keen, dark eyes, and read the lines of that stormy countenance, you felt that it would be equally impossible for him to tell a lie or to fear the face of man. this was john sanders, one of the early california methodist preachers. he went among the first to preach the gospel to the gold-hunters. he got a hearing where some failed. his sincerity and brainpower commanded attention, and his pluck enforced respect. in one case it seemed to be needed. he was sent to preach in placerville, popularly called in the old days, "hangtown." it was then a lively and populous place. the mines were rich, and gold-dust was abundant as good behavior was scarce. the one church in the town was a "union church," and it was occupied by sanders and a preacher of another sect on alternate sundays. all went well for many months, and if there were no sinners converted in that camp, the few saints were at peace. it so happened that sanders was called away for a week or two, and on his return he found that a new preacher had been sent to the place, and that he had made an appointment to preach on his (sanders's) regular day. having no notion of yielding his rights, sanders also inserted a notice in the papers of the town that he would preach at the same time and place. the thing was talked about in the town and vicinity, and there was a buzz of excitement. the miners, always ready for a sensation, became interested, and when sunday came the church could not hold the crowd. the strange preacher arrived first, entered the pulpit, knelt a few moments in silent devotion, according to custom, and then sat and surveyed the audience which was surveying him with curious interest. he was a tall, fine-looking man, almost the equal of sanders in height, and superior to him in height. he was a kentuckian originally, but went from ohio to california, and was a full-grown man, of the best western physical type. in a little while sanders entered the church, made his way through the dense crowd, ascended the pulpit, cast a sharp glance at the intruder, and sat down. there was a dead silence. the two preachers gazed at the congregation; the congregation gazed at the preachers. a pin might have been heard to fall. sanders was as imperturbable as a statue, but his lips were pressed together tightly, and there was a blaze in his eyes. the strange preacher showed signs of nervousness, moving his hands and feet, and turning this way and that in his seat. it was within five minutes of the time for opening the service. the stranger rose, and was in the act of taking hold of the bible that lay on the cushion in front of him, when sanders rose to his full height, stepped in front of him, and darting lightning from his eyes as he looked him full in the face, said: "i preach here today, sir!" that settled it. there was no mistaking that look or tone. the tall stranger muttered an inarticulate protest and subsided. sanders proceeded with the service, making no allusion to the difficulty until it was ended. then he proposed a meeting of the citizens the next evening to adjudicate the case. the proposal was acceded to. the church was again crowded; and though ecclesiastically sanders was in the minority, with the genuine love for fair-play which is a trait of anglo-saxon character, he was sustained by an overwhelming majority. it is likely, too, that his plucky bearing the, day before made him some votes. a preacher who would fight for his rights suited those wild fellows better than one who would assert a claim that he would not enforce. sanders preached to larger audiences after this episode in his "hangtown" pastorate. it was after this that he went out one day to stake off a lot on which he proposed to build a house of worship. it was near the roman catholic church. a zealous irishman, who was a little more than half drunk, was standing by. evidently he did not like any such heretical movements, and, after sanders had placed the stake in the earth, the hibernian stepped forward and pulled it up. "i put the stake back in its place. he pulled it up again. i put it back. he pulled it up again. i put it back once more. he got fiery mad by this time, and started at me with an ax in his hand. i had an ax in my hand, and as its handle was longer than his, i cut him down." the poor fellow had waked up the fighting preacher, and fell before the sweep of sanders's ax. he dodged as the weapon descended, and saved his life by doing so. he got an ugly wound on the shoulder, and kept his bed for many weeks. when he rose from his bed he had a profound regard for sanders, whose grit excited his admiration. there was not a particle of resentment in his generous irish heart. he became a sober man, and it was afterward a current pleasantry among the "boys" that he was converted by the use of the carnal weapon wielded by that spunky parson. nobody blamed sanders for his part in the matter. it was a fair fight, and he had the right on his side. had he shown the white feather, that would have damaged him with a community in whose estimation courage as the cardinal virtue. sanders was popular with all classes, and placerville remembers him to this day. he was no rose-water divine, but thundered the terrors of the law into the ears of those wild fellows with the boldness of a john the baptist. many a sinner quaked under his stern logic and fiery appeals, and some repented. i shall never forget a sermon he preached at san jose. he was in bad health, and his mind was morbid and gloomy. his text was, who hath hardened himself against him, and hath prospered? (job ix. 4.) the thought that ran through the discourse was the certainty that retribution would overtake the guilty. god's law will be upheld. it protects the righteous, but must crush the disobedient. he swept away the sophisms by which men persuade themselves that they can escape the penalty of violated law; and it seemed as if we could almost hear the crash of the tumbling wrecks of hopes built on false foundations. god almighty was visible on the throne of his power, armed with the even thunders of his wrath. "who hath defied god and escaped?" he demanded, with flashing eyes and trumpet voice. and then he recited the histories of nations and men that had made the fatal experiment, and the doom that had whelmed them in utter ruin. "and yet you hope to escape!" he thundered to the silent and awestruck men and women before him. "you expect that god will abrogate his law to please you; that he will tear down the pillars of his moral government that you may be saved in your sins! o fools, fools, fools! there is no place but hell for such a folly as this!" his haggard face, the stern solemnity of his voice, the sweep of his long arms, the gleam of his deep-set eyes, and the vigor of his inexorable logic, drove that sermon home to the listeners. he was the keenest of critics, and often merciless. he was present at a camp-meeting near san jose, but too feeble to preach. i was there, and disabled from, the effects of the california poison-oak. that deceitful shrub! its pink leaves smile at you as pleasantly as sin, and, like sin, it leaves its sting. the "preachers' tent" was immediately in the rear of "the stand," and sanders and i lay inside and listened to the sermons. he was in one of his caustic moods, and his comments were racy enough, though not helpful to devotion. "there! he yelled, clapped his hands, stamped, and--said nothing!" the criticism was just: the brother in the stand was making a great noise, but there was not much meaning in what he said. "he made one point only--a pretty good apology for lazarus's poverty." this was said at the close of an elaborate discourse on "the rich man and lazarus," by a brother who sometimes got "in the brush." "he isn't touching his text--he knows no more theology than a guinea-pig. words, words, words!" this last criticism was directed against a timid young divine, who was badly frightened, but who has since shown that there was good metal in him. if he had known what was going on just behind him, he would have collapsed entirely in that tentative effort at preaching the gospel. sanders kept up this running fire of criticism at every service, cutting to the bone, at every blow, and giving me new light on homiletics, if he did not promote my enjoyment of the preaching. he had read largely and thought deeply, and his incisive intellect had no patience with what was feeble or pointless. disease settled upon his lungs, and he rapidly declined. his strong frame grew thinner and thinner, and his mind alternated between moods of morbid bitterness and transient buoyancy. as the end approached, his bitter moods were less frequent, and an unwonted tenderness came into his words and tones. he went to the lokonoma springs, in the hills of napa county, and in their solitudes he adjusted himself to the great change that was drawing near. the capacious blue sky that arched above him, the sighing of the gentle breeze through the solemn pines, the repose of the encircling mountains, bright with sunrise, or purpling in the twilight, distilled the soothing influences of nature into his spirit, and there was a great calm within. beyond those california hills the hills of god rose in their supernal beauty before the vision of his faith, and when the summons came for him one midnight, his soul leaped to meet it in a ready and joyous response. on a white marble slab, at the "stone church," in suisun valley, is this inscription: rev. john sanders. many are the afflictions of the righteous, but the lord delivereth him out of them all. the spring flowers were blooming on the grave when i saw it last. a day. ah, that blessed, blessed day! i had gone to the white sulphur springs, in napa county, to get relief from the effects of the california poison-oak. gay deceiver! with its tender green and pink leaves, it looks as innocent and smiling as sin when it woos youth and ignorance. like sin, it is found everywhere in that beautiful land. many antidotes are used, but the only sure way of dealing with it is to keep away from it. again, there is an analogy: it is easier to keep out of sin than to get out when caught. these soft, pure white sulphur waters work miracles of healing, and attract all sorts of people. the weary and broken down man of business comes here to sleep, and eat, and rest; the woman of fashion, to dress and flirt; the loudly-dressed and heavily-bejeweled gambler, to ply his trade; happy bridal couples, to have the world to themselves; successful and unsuccessful politicians, to plan future triumphs or brood over defeats; pale and trembling invalids, to seek healing or a brief respite from the grave; families escaping from the wind and fog of the bay, to spend a few weeks where they can find sunshine and quiet--it is a little world in itself. the spot is every way beautiful, but its chief charm is its isolation. though within a few hours' ride of san francisco, and only two miles from a railroad-station, you feel as if you were in the very heart of nature --and so you are. winding along the banks of a sparkling stream, the mountains--great masses of leafy green--rise abruptly on either hand; the road bends this way and that until a sudden turn brings you to a little valley hemmed in all around by the giant hills. a bold, rocky projection just above the main hotel gives a touch of ruggedness and grandeur to the scene. how delicious the feeling of rest that comes over you at once!--the world shut out, the hills around, and the sky above. it was in 1863, when the civil war was at its white heat. circumstances had given me undesired notoriety in that connection. i had been thrust into the very vortex of its passion, and my name made the rallying-cry of opposing elements in california. the guns of manassas, cedar mountain, and the chickahominy, were echoed in the foothills of the sierras, and in the peaceful valleys of the far-away pacific coast. the good sense of a practical, people prevented any flagrant outbreak on a large scale, but here and there a too ardent southerner said or did something that gave him a few weeks' or months' duress at fort alcatraz, and the honors of a bloodless martyrdom. i was then living at north beach, in full sight of that fortress. it was kindly suggested by several of my brother editors that it would be a good place for me. when, as my eye swept over the bay in the early morning, the first sight that met my gaze was its rocky ramparts and bristling guns, the poet's line would come to mind: "'t is distance lends enchantment to the view." i was just as close as i wanted to be. "i have good quarters for you," said the brave and courteous captain mcdougall, who was in command at the fort; "and knowing your penchant, i will let you have the freedom of a sunny corner of the island for fishing in good weather." the true soldier is sometimes a true gentleman. the name and image of another federal officer rise before me as i write. it is that of the heroic soldier, general wright, who went down with the "brother jonathan," on the oregon coast, in 1865. he was in command of the department of the pacific during this stormy period of which i am speaking. i had never seen him, and i had no special desire to make his acquaintance. somehow fort alcatraz had become associated with his name for reasons already intimated. but, though unsought by me, an interview did take place. "it has come at last!" was my exclamation as i read the note left by an orderly in uniform notifying me that i was expected to report at the quarters of the commanding-general the next day at ten o'clock. conscious of my innocence of treason or any other crime against the government or society, my pugnacity was roused by this summons. before the hour set for my appearance at the military headquarters, i was ready for martyrdom or any thing else except alcatraz. i didn't like that. the island was too small, and too foggy and windy, for my taste. i thought it best to obey the order i had received, and so, punctually at the hour, i repaired to the headquarters on washington street, and ascending the steps with a firm tread and defiant feeling, i entered the room. general mason, provost-marshal, a scholar and polished gentleman, politely offered me a seat. "no; i prefer to stand," i said stiffly. "the general will see you in a few minutes," said he, resuming his work, while i stood nursing my indignation and sense of wrong. in a little while general wright entered--a tall and striking figure, silver-haired, blue-eyed, ruddy faced, with a mixture of the dash of the soldier and the benignity of a bishop. declining also his cordial invitation to be seated, i stood and looked at him, still nursing defiance, and getting ready to wear a martyr's crown. the general spoke: "did you know, sir, that i am perhaps the most attentive reader of your paper to be found in california?" "no; i was not aware that i had the honor of numbering the commanding-general of this department among my readers." (this was spoken with severe dignity.) "a lot of hotheads have for sometime been urging me to have you arrested on the ground that you are editing and publishing a disloyal newspaper. not wishing to do any injustice to a fellowman, i have taken means every week to obtain a copy of your paper, the pacific methodist; and allow me to say, sir, that no paper has ever come into my family which is such a favorite with all of us." i bowed, feeling that the spirit of martyrdom was cooling within me. the general continued: "i have sent for you, sir, that i might say to you, go on in your present prudent and manly course, and while i command this department you are as safe as i am." there i stood, a whipped man, my pugnacity all gone, and the martyr's crown away out of my reach. i walked softly downstairs, after bidding the general an adieu in a manner in marked contrast to that in which i had greeted him at the beginning of the interview. now that it is all over, and the ocean winds have wailed their dirges for him so many long years, i would pay a humble tribute to the memory of as brave and knightly a man as ever wore epaulettes or fought under the stars and stripes. he was of the type of sidney johnston, who fell at shiloh, and of mcpherson, who fell at kennesaw--all californians; all americans, true soldiers, who had a sword for the foe in fair fight in the open field, and a shield for woman, and for the noncombatant, the aged, the defenseless. they fought on different sides to settle forever a quarrel that was bequeathed to their generation, but their fame is the common inheritance of the american people. the reader is beginning to think i am digressing, but he will better understand what is to come after getting this glimpse of those stormy days in the sixties. the guests at the springs were about equally divided in their sectional sympathies. the gentlemen were inclined to avoid all exciting discussions, but the ladies kept up a fire of small arms. when the mails came in, and the latest news was read, comments were made with flashing eyes and flushed cheeks. the sabbath morning dawned without a cloud. i awoke with the earliest song of the birds, and was out before the first rays of the sun had touched the mountaintops. the coolness was delicious, and the air was filled with the sweet odors of aromatic shrubs and flowers, with a hint of the pine-forests and balsam-thickets from the higher altitudes. taking a breakfast solus, pocket-bible in hand i bent my steps up the gorge, often crossing the brook that wound its way among the thickets or sung its song at the foot of the great overhanging cliffs. a shining trout would now and then flash like a silver bar for a moment above the shaded pools. with light step a doe descending the mountain came upon me, and, gazing at me a moment or two with its soft eyes, tripped away. in a narrow pass where the stream rippled over the pebbles between two great walls of rock, a spotted snake crossed my path, hurrying its movement in fright. fear not, humble ophidian. the war declared between thee and me in the fifteenth verse of the third chapter of genesis is suspended for this one day. let no creature die today but by the act of god. here is the lake. how beautiful! how still! a landslide had dammed the stream where it flowed between steep, lofty banks, backing the waters over a little valley three or four acres in extent, shut in on all sides by the wooded hills, the highest of which rose from its northern margin. here is my sanctuary, pulpit, choir, and altar. a gigantic pine had fallen into the lake, and its larger branches served to keep the trunk above the water as it lay parallel with the shore. seated on its trunk, and shaded by some friendly willows that stretch their graceful branches above, the hours pass in a sort of subdued ecstasy of enjoyment. it is peace, the peace of god. no echo of the world's discords reaches me. the only sound i hear is the cooing of a turtledove away off in a distant gorge of the mountain. it floats down to me on the sabbath air with a pathos as if it voiced the pity of heaven for the sorrows of a world of sin, and pain, and death. the shadows of the pines are reflected in the pellucid depths, and ever and anon the faintest hint of a breeze sighs among their branches overhead. the lake lies without a ripple below, except when from time to time a gleaming trout throws himself out of the water, and, falling with a splash, disturbs the glassy surface, the concentric circles showing where he went down. sport on, ye shiny denizens of the deep; no angler shall cast his deceitful hook into your quiet haunts this day. through the foliage of the overhanging boughs the blue sky is spread, a thin, fleecy cloud at times floating slowly along like a watching angel, and casting a momentary shadow upon the watery mirror below. that sky, so deep and so solemn, woos me--lifts my thought till it touches the eternal. what mysteries of being lie beyond that sapphire sea? what wonders shall burst upon the vision when this mortal shall put on immortality? i open the book and read. isaiah's burning song makes new music to my soul attuned. david's harp sounds a sweeter note. the words of jesus stir to diviner depths. and when i read in the twenty-first chapter of revelation the apocalyptic promise of the new heavens and the new earth, and of the new jerusalem coming down from god out of heaven, a new glory seems to rest upon sky, mountain forest, and lake, and my soul is flooded with a mighty joy. i am swimming in the infinite ocean. not beyond that vast blue canopy is heaven; it is within my own ravished heart! thus the hours pass, but i keep no note of their flight, and the evening shadows are on the water before i come back to myself and the world. o hallowed day! o hallowed spot! foretaste and prophecy to the weary and burden-bowed soul of the new heavens and the new earth where its blessed ideal shall be a more blessed reality! it is nearly dark when i get back to the hotel. supper is over, but i am not hungry--i have feasted on the bread of angels. "did you know there was quite a quarrel about you this morning?" asks one of the guests. the words jar. in answer to my look of inquiry, he proceeds: "there was a dispute about your holding a religious service at the picnic grounds. they made it a political matter--one party threatened to leave if you did preach, the other threatened to leave if you did not preach. there was quite an excitement about it until it was found that you were gone, and then everybody quieted down." there is a silence. i break it by telling them how i spent the day, and then they are very quiet. the next sabbath every soul at the place united in a request for a religious service, the list headed by a high-spirited and brilliant pennsylvania lady who had led the opposing forces the previous sunday. winter-blossomed. i think i saw him the first sunday i preached in san jose, in 1856. he was a notable-looking man. i felt attracted toward him by that indefinable sympathy that draws together two souls born to be friends. i believe in friendship at first sight. who that ever had a real friend does not? love at first sight is a different thing--it may be divine and eternal, or it may be a whim or a passing fancy. passion blurs and blinds in the region of sexual love: friendship is revealed in its own white light. i was introduced after the service to the stranger who had attracted my attention, and who had given the youthful preacher such a kind and courteous hearing. "this is major mccoy." he was a full head higher than anybody else as he stood in the aisle. he bowed with courtly grace as he took my hand, and his face lighted with a smile that had in it something more than a conventional civility. i felt that there was a soul beneath that dignified and courtly exterior. his head displayed great elevation of the cranium, and unusual breadth of forehead. it was what is called an intellectual head; and the lines around the eyes showed the traces of thought, and, as it seemed to me, a tinge of that sadness that nearly always lends its charm to the best faces. "i have met a man that i know i shall like," was my gratified exclamation to the mistress of the parsonage, as i entered. and so it turned out. he became one of the select circle to whom i applied the word friend in the sacredest sense. this inner circle can never be large. if you unduly enlarge it you dilute the quality of this wine of life. we are limited. there is only one heart large enough to hold all humanity in its inmost depths. my new friend lived out among the sycamores on the new almaden road, a mile from the city, and the cottage in which he lived with his cultured and loving household was one of the social paradises of that beautiful valley in which the breezes are always cool, and the flowers never fade. my friend interested me more and more. he had been a soldier, and in the mexican war won distinction by his skill and valor. he was with joe lane and his gallant indianians at juamantla, and his name was specially mentioned among those whose fiery onsets had broken the lines of the swarthy foe, and won against such heavy odds the bloody field. he was seldom absent from church on sunday morning, and now and then his inquiring, thoughtful face would be seen in my smaller audience at night. one unwelcome fact about him pained me, while it deepened my interest in him. he was a skeptic. bred to the profession of medicine and surgery, he became bogged in the depths of materialistic doubt. the microscope drew his thoughts downward until he could not see beyond second causes. the soul, the seat of which the scalpel could not find, he feared did not exist. the action of the brain, like that of the heart and lungs, seemed to him to be functional; and when the organ perished did not its function cease forever? he doubted the fact of immortality, but did not deny it. this doubt clouded his life. he wanted to believe. his heart rebelled against the negations of materialism, but his intellect was entangled in its meshes. the great question was ever in his thought, and the shadow was ever on his path. he read much on both sides, and was always ready to talk with any from whom he had reason to hope for new light or a helpful suggestion. did he also pray? we took many long rides and had many long talks together. pausing under the shade of a tree on the highway, the hours would slip away while we talked of life and death, and weighed the pros and cons of the mighty hope that we might live again, until the sun would be sinking into the sea behind the santa cruz mountains, whose shadows were creeping over the valley. he believed in a first cause. the marks of design in nature left in his mind no room to doubt that there was a designer. "the structure and adaptations of the horse harnessed to the buggy in which we sit, exhibit the infinite skill of a creator." on this basis i reasoned with him in behalf of all that is precious to christian faith and hope, trying to show (what i earnestly believe) that, admitting the existence of god, it is illogical to stop short of a belief in revelation and immortality. the rudest workman would not fling the fragments of his work away, if every useless bit of clay he trod on were a sentient thing. and does the wisest worker take quick human hearts, instead of stone, and hew and carve them one by one, nor heed the pangs with which they break? and more: if but creation's waste, would he have given us sense to yearn for the perfection none can earn, and hope the fuller life to taste? i think, if we most cease to be, it is cruelty refined to make the instincts of our mind stretch out toward eternity. wherefore i welcome nature's cry, as earnest of a life again, where thought shall never be in vain, and doubt before the light shall fly. my talks with him were helpful to me if not to him. in trying to remove his doubts my own faith was confirmed, and my range of thought enlarged. his reverent spirit left its impress upon mine. "mccoy is a more religious man than either you or i, doctor," said tod robinson to me one day in reply to a remark in which i had given expression to my solicitude for my doubting friend. yes, strange as it may seem, this man who wrestled with doubts that wrung his soul with intense agony, and walked in darkness under the veil of unbelief; had a healthful influence upon me because the attitude of his soul was that of a reverent inquirer, not that of a scoffer. the admirable little treatise of bishop mcilvaine, on the "evidences of christianity," cleared away some of his difficulties. a sermon of bishop kavanaugh, preached at his request, was a help to him. (that wonderful discourse is spoken of elsewhere in this volume.) a friend of his lay dying at redwood city. this friend, like himself; was a skeptic, and his doubts darkened his way as he neared the border of the undiscovered country. mccoy went to see him. the sick man, in the freedom of long friendship, opened his mind to him. the arguments of the good bishop were yet fresh in mccoy's mind, and the echoes of his mighty appeals were still sounding in his heart. seated by the dying man, he forgot his own misgivings, and with intense earnestness pointed the struggling soul to the saviour of sinners. "i did not intend it, but i was impelled by a feeling i could not resist. i was surprised and strangely thrilled at my own words as i unfolded to my friend the proofs of the truth of christianity, culminating in the incarnation, death, and resurrection, of jesus christ. he seemed to have grasped the truths as presented, a great calm came over him, and he died a believer. no incident of my life has given me a purer pleasure than this; but it was a strange thing! nobody could have had access to him as i had--i, a doubter and a stumbler all my life; it looks like the hand of god!" his voice was low, and his eyes were wet as he finished the narration. yes, the hand of god was in it--it is in every good thing that takes place on earth. by the bedside of a dying friend, the undercurrent of faith in his warily and noble heart swept away for the time the obstructions that were in his thought, and bore him to the feet of the blessed, pitying christ, who never breaks a bruised reed. i think he had more light, and felt stronger ever after. death twice entered his home-circle--once to convey a budding flower from the earth-home to the skies, and again like a lightning-stroke laying young manhood low in a moment. the instinct within him, stronger than doubt, turned his thought in those dark hours toward god. the ashes of the earthly hopes that had perished in the fire of fierce calamity, and the tears of a grief unspeakable, fertilized and watered the seed of faith which was surely in his heart. the hot furnace-fire did not harden this finely-tempered soul. but still he walked in darkness, doubting, doubting, doubting all he most wished to believe. it was the infirmity of his constitution, and the result of his surroundings. he went into large business enterprises with mingled success and disappointment. he went into politics, and though he bore himself nobly and gallantly, it need not be said that that vortex does not usually draw those who are within its whirl heavenward. he won some of the prizes that were fought for in that arena where the noblest are in danger of being soiled, and where the baser metal sinks surely to the bottom by the inevitable force of moral gravitation. from time to time we were thrown together, and i was glad to know that the great question was still in his thought, and the hunger for truth was still in his heart. ill health sometimes made him irritable and morbid, but the drift of his inner nature was unchanged. his mind was enveloped in mists, and sometimes tempests of despair raged within him; but his heart still thirsted for the water of life. a painful and almost fatal railway accident befell him. he was taken to his ranch among the quiet hills of shasta county. this was the final crisis in his life. shut out from the world, and shut in with his own thoughts and with god, he reviewed his life and the argument that had so long been going on in his mind. he was now quiet enough to hear distinctly the still small voice whose tones he could only half discern amid the clamors of the world when he was a busy actor on its stage. nature spoke to him among the hills, and her voice is god's. the great primal instincts of the soul, repressed in the crowd or driven into the background by the mob of petty cares and wants, now had free play in the nature of this man whose soul had so long cried out of the depths for the living god. he prayed the simple prayer of trust at which the gate flies open for the believing soul to enter into the peace of god. he was born into the new life. the flower that had put forth its abortive buds for so many seasons, burst into full bloom at last. with the mighty joy in his heart, and the light of the immortal hope beaming upon him, he passed into the world of certainties. a virginian in california. "hard at it, are you, uncle?" "no, sah--i's workin' by de day, an' i an't a-hurtin' myself." this answer was given with a jolly laugh as the old man leaned on his pick and looked at me. "you looked so much like home-folks that i felt like speaking to you. where are you from?" "from virginny, sah!" (pulling himself up to his full height as he spoke). "where's you from, massa?" "i was brought up partly in virginia too?" "wbar'bouts, in virginny?" "mostly in lynchburg." "lynchburg! dat's whar i was fotched up. i belonged to de widder tate, dat lived on de new london road. gib me yer han', massa!" he rushed up to the buggy, and taking my extended hand in his huge fist he shook it heartily, grinning with delight. this was uncle joe, a perfect specimen of the old virginia "uncle," who had found his way to california in the early days. yes, he was a perfect specimen--black as night, his lower limbs crooked, arms long, hands and feet very large. his mouth was his most striking feature. it was the orator's mouth in size, being larger than that of henry clay--in fact, it ran almost literally from ear to ear. when he opened it fully, it was like lifting the lid of a box. uncle joe and i became good friends at once. he honored my ministry with his presence on sundays. there was a touch of dandyism in him that then and there came out. clad in a blue broadcloth dress-coat of the olden cut, vest to match, tight-fitting pantaloons, stove-pipe hat, and yellow kid gloves, he was a gorgeous object to behold. he knew it, and there was a pleasant self-consciousness in the way he bore himself in the sanctuary. uncle joe was the heartiest laugher i ever knew. he was always as full of happy life as a frisky colt or a plump pig. when he entered a knot of idlers on the streets, it was the signal or a humorous uproar. his quaint sayings, witty repartee, and contagious laughter, never failed. he was as agile as a monkey, and his dancing was a marvel. for a dime he would "cut the pigeon wing," or give a "double-shuffle" or "breakdown" in a way that made the beholder dizzy. what was uncle joe's age nobody could guess--he had passed the line of probable surmising. his own version of the matter on a certain occasion was curious. we had a colored female servant--an old-fashioned aunty from mississippi--who, with a bandanna handkerchief on her head, went about the house singing the old methodist choruses so naturally that it gave us a home-feeling to have her about us. uncle joe and aunt tishy became good friends, and he got into the habit of dropping in at the parsonage on sunday evenings to escort her to church. on this particular occasion i was in the little study adjoining the dining-room where aunt tishy was engaged in cleaning away the dishes after tea. i was not eavesdropping, but could not help hearing what they said. my name was mentioned. "o yes," said uncle joe; "i knowed massa fitchjarals back dar in virginny. i use ter hear 'im preach dar when i was a boy." there was a silence. aunt tishy couldn't swallow that. uncle joe's statement, if true, would have made me more than a hundred years old, or brought him down to less than forty. the latter was his object; he wanted to impress aunt tishy with the idea that he was young-enough to be an eligible gallant to any lady. but it failed. that unfortunate remark ruined uncle joe's prospects: aunt tishy positively refused to go with him to church, and just as soon as he had left she went into the sitting-room in high disgust, saying: "what made dat nigger tell me a lie like dat? tut, tut, tut!" she cut him ever after, saying she would n't keep company with a liar, "even if he was from de souf." aunt tishy was a good woman, and had some old-time notions. as a cook, she was discounted a little by the fact that she used tobacco, and when it got into the gravy it was not improving to its flavor. uncle joe was in his glory at a dinner-party, where he could wait on the guests, give droll answers to the remarks made to call him out, and enliven the feast by his inimitable and "catching" laugh. in a certain circle no occasion of the sort was considered complete without his presence there was no such thing as dullness when he was about. his peculiar wit or his simplicity was brought out at a dinner-party one day at dr. bascom's. there was a large gathering of the leading families of san jose and vicinity, and uncle joe was there in his jolliest mood. mrs. bascom, whose wit was then the quickest and keenest in all california, presided, and enough good things were said to have made a reputation for sidney smith or douglas jerrold. mrs. bascom, herself a virginian by extraction, had engaged in a laughing colloquy with uncle joe, who stood near the head of the table waving a bunch of peacock's feathers to keep off the flies. "missus, who is yer kinfolks back dar in virginny, any way?" the names of several were mentioned. "why, dem's big folks," said uncle joe. "yes," said she, laughingly; "i belong to the first families of virginia." "i don't know 'bout dat, missus. i was dar 'fore you was, an' i don't 'long to de fus' families!" he looked at it from a chronological rather than a genealogical standpoint, and, strange to say, the familiar phrase had never been heard by him before. uncle joe joined the church. he was sincere in his profession. the proof was found in the fact that he quit dancing. no more "pigeon wings," "double-shuffles," or "breakdowns," for him--he was a "perfessor." he was often tempted by the offer of coin, but he stood firm. "no, sah; i's done dancin', an' don't want to be discommunicated from de church," he would say, good-naturedly, as he shied off, taking himself away from temptation. a very high degree of spirituality could hardly be expected from uncle joe at that late day; but he was a christian after a pattern of his own --kind-hearted, grateful, simple-minded, and full of good humor. his strength gradually declined, and he was taken to the county hospital, where his patience and cheerfulness conciliated and elicited kind treatment from everybody. his memories went back to old virginia, and his hopes looked up to the heaven of which his notions were as simple as those of a little child. in the simplicity of a child's faith he had come to jesus, and i doubt not was numbered among his little ones. among the innumerable company that shall be gathered on mount zion from every kindred, tribe, and tongue, i hope to meet my humble friend, uncle joe. at the end. among my acquaintances at san jose, in 1863, was a young kentuckian who had come down from the mines in bad health. the exposure of mining-life had been too severe for him. it took iron constitutions to stand all day in almost ice-cold water up to the waist with a hot sun pouring down its burning rays upon the head and upper part of the body. many a poor fellow sunk under it at once, and after a few days of fever and delirium was taken to the top of an adjacent hill and laid to rest by the hands of strangers. others, crippled by rheumatic and neuralgic troubles, drifted into the hospitals of san francisco, or turned their faces sadly toward the old homes which they had left with buoyant hopes and elastic footsteps. others still, like this young kentuckian, came down into the valleys with the hacking cough and hectic flush to make a vain struggle against the destroyer that had fastened upon their vitals, nursing often a vain hope of recovery to the very last. ah, remorseless flatterer! as i write these lines, the images of your victims crowd before my vision: the strong men that grew weak, and pale, and thin, but fought to the last inch for life; the noble youths who were blighted just as they began to bloom; the beautiful maidens etherealized into almost more than mortal beauty by the breath of the death-angel, as autumn leaves, touched by the breath of winter, blush with the beauty of decay. my young friend indulged no false hopes. he knew he was doomed to early death, and did not shrink from the thought. one day, as we were conversing in a store uptown, he said: "i know that i have at most but a few months to live, and i want to spend them in making preparation to die. you will oblige me by advising me what books to read. i want to get clear views of what i am to do, and then do it." it need scarcely be said that i most readily complied with his request, and that first and chiefly i advised him to consult the bible, as the light to his path and the lamp to his feet. other books were suggested, and a word with regard to prayerful reading was given, and kindly received. one day i went over to see my friend. entering his room, i found him sitting by the fire with it table by his side, on which was lying a bible. there was an unusual flush in his face, and his eye burned with unusual brightness. "how are you today?" i asked. "i am annoyed, sir--i am indignant," he said. "what is the matter?" "mr. ----, the--preacher, has just left me. he told me that my soul cannot be saved unless i perform two miracles: i must, he said, think of nothing but religion, and be baptized by immersion. i am very weak, and cannot fully control my mental action--my thoughts will wander in spite of myself. as to being put under the water, that would be immediate death; it would bring on a hemorrhage of the lungs, and kill me." he leaned his head on the table and panted for breath, his thin chest heaving. i answered: "mr.--is a good man, but narrow. he meant kindly in the foolish words he spoke to you. no man, sick or well, can so control the action of his mind as to force his thoughts wholly into one channel. i cannot do it, neither can any other man. god requires no such absurdity of you or anybody else. as to being immersed, that seems to be a physical impossibility, and he surely does not demand what is impossible. my friend, it really makes little difference what mr.--says,or what i say, concerning this matter. what does god say? let us see." i took up the bible, and he turned a face upon me expressing the most eager interest. the blessed book seemed to open of itself to the very words that were wanted. "like as a father pitieth his children, so the lord pitieth them that fear him." "he knoweth our frame, and remembereth that we are dust." "ho, everyone that thirsteth, come to the waters." glancing at him as i read, i was struck with the intensity of his look as he drank in every word. a traveler dying of thirst in the desert could not clutch a cup of cold water more eagerly than he grasped these tender words of the pitying father in heaven. i read the words of jesus: "come unto me all ye that labor and are heavy-laden, and i will give you rest." "him that cometh unto me i will in no wise east out." "this is what god says to you, and these are the only conditions of acceptance. nothing is said about any thing but the desire of your heart and the purpose of your soul. o my friend, these words are for you!" the great truth flashed upon his mind, and flooded it with light. he bent his head and wept. we knelt and prayed together, and when we rose from our knees he said softly, as the tears stole, down his face: "it is all right now--i see it clearly; i see it clearly!" we quietly clasped hands, and sat in silent sympathy. there was no need for any words from me; god had spoken, and that was enough. our hearts were singing together the song without words. "you have found peace at the cross--let nothing disturb it," i said, as he pressed my hand at the door as we left. it never was disturbed. the days that had dragged so wearily and anxiously during the long, long months, were now full of brightness. a subdued joy shone in his face, and his voice was low and tender as he spoke of the blessed change that had passed upon him. the book whose words had been light and life to him was often in his hand, or lay open on the little table in his room. he never lost his hold upon the great truth he had grasped, nor abated in the fullness of his joy. i was with him the night he died. he knew the end was at hand, and the thought filled him with solemn joy. his eyes kindled, and his wasted features fairly blazed with rapture as he said, holding my hand with both of his: "i am glad it will all soon, be over. my peace has been unbroken since that morning when god sent you to me. i feel a strange, solemn joy a the thought that i shall soon know all." before daybreak the great mystery was disclosed to him, and as he lay in his coffin next day, the smile that lingered on his lips suggested the thought that he had caught a hint of the secret while yet in the body. among the casual hearers that now and then dropped in to hear a sermon in sonora, in the early days of my ministry there, was a man who interested me particularly. he was at that time editing one of the papers of the town, which sparkled with the flashes of his versatile genius. he was a true bohemian, who had seen many countries, and knew life in almost all its phases. he had written a book of adventure which found many readers and admirers. an avowed skeptic, he was yet respectful in his allusions to sacred things, and i am sure his editorial notices of the pulpit efforts of a certain young preacher who had much to learn were more than just. he was a brilliant talker, with a vein of enthusiasm that was very delightful. his spirit was generous and frank, and i never heard from his lips an unkind word concerning any human being. even his partisan editorials were free from the least tinge of asperity--and this is a supreme test of a sweet and courteous nature. in our talks he studiously evaded the one subject most interesting to me. with gentle and delicate skill he parried all my attempts to introduce the subject of religion in our conversations. "i can't agree with you on that subject, and we will let it pass" he would say, with a smile, and then he would start some other topic, and rattle on delightfully in his easy, rapid way. he could not stay long at a place, being a confirmed wanderer. he left sonora, and i lost sight of him. retaining. a very kindly feeling for this gentle-spirited and pleasant adventurer, i was loth thus to lose all trace of him. meeting a friend one day, on j street, in the city of sacramento, he said: "your old friend d--is at the golden eagle hotel. you ought to go and see him." i went at once. ascending to the third story, i found his room, and, knocking at the door, a feeble voice bade me enter. i was shocked at the spectacle that met my gaze. propped in an armchair in the middle of the room, wasted to a skeleton, and of a ghastly pallor, sat the unhappy man. his eyes gleamed with an unnatural brightness, and his features wore a look of intense suffering. "you have come too late, sir," he said, before i had time to say a word. "you can do me no good now. i have been sitting in this chair three weeks. i could not live a minute in any other position, hell could not be worse than the tortures i have suffered! i thank you for coming to see me, but you can do me no good--none, none!" he paused, panting for breath; and then he continued, in a soliloquizing way: "i played the fool, making a joke of what was no joking matter. it is too late. i can neither think nor pray, if praying would do any good. i can only suffer, suffer, suffer!" the painful interview soon ended. to every cheerful or hopeful suggestion which i made he gave but the one reply: "too late!" the unspeakable anguish of his look, as his eyes followed me to the door, haunted me for many a day, and the echo of his words, "too late!" lingered sadly upon my ear. when i saw the announcement of his death, a few days afterward, i asked myself the solemn question, whether i had dealt faithfully with this lighthearted, gifted man when he was within my reach. his last rook is before me now, as i pencil these lines. "john a--is dying over on the portrero, and his family wants you to go over and see him." it was while i was pastor in san francisco. a--was a member of my church, and lived on what was called the portrero, in the southern part of the city, beyond the long bridge. it was after night when i reached the little cottage on the slope above the bay. "he is dying and delirious," said a member of the family, as i entered the room where the sick man lay. his wife, a woman of peculiar traits and great religious fervor, and a large number of children and grandchildren, were gathered in the dying man's chamber and the adjoining rooms. the sick man--a man of large and powerful frame--was restlessly tossing and roving his limbs, muttering incoherent words, with now and then a burst of uncanny laughter. when shaken, he would open his eyes for an instant, make some meaningless ejaculation, and then they would close again. the wife was very anxious that he should have a lucid interval while i was there. "o i cannot bear to have him die without a word of farewell and comfort!" she said, weeping. the hours wore on, and the dying man's pulse showed that he was sinking steadily. still he lay unconscious, moaning and gibbering, tossing from side to side as far as his failing strength permitted. his wife would stand and gaze at him a few moments, and then walk the floor in agony. "he can't last much longer," said a visitor, who felt his pulse and found it almost gone, while his breathing became more labored. we waited in silence. a thought seemed to strike the wife. without saying a word, she climbed upon the bed, took her dying husband's head upon her lap, and, bending close above his face, began to sing. it was a melody i had never heard before--low, and sweet, and quaint. the effect was weird and thrilling as the notes fell tremulous from the singer's lips in the hush of that dead hour of the night. presently the dying man became more quiet, and before the song was finished he opened his eyes as a smile swept over his face, and as his glance fell on me i saw that he knew me. he called my name, and looked up in the face that bent above his own, and kissed it. "thank god!" his wife exclaimed, her hot tears falling on his face, that wore a look of strange serenity. then she half whispered to me, her face beaming with a softened light: "that old song was one we used to sing together when we were first married in baltimore." on the stream of music and memory he had floated back to consciousness, called by the love whose instinct is deeper and truer than all the science and philosophy in the world. at dawn he died, his mind clear, and the voice of prayer in his ears, and a look of rapture in his face. dan w--, whom i had known in the mines in the early days, had come to san jose about the time my pastorate in the place began. he kept a meat-market, and was a most genial, accommodating, and good-natured fellow. everybody liked him, and he seemed to like everybody. his animal spirits were unfailing, and his face never revealed the least trace of worry or care. he "took things easy," and never quarreled with his luck. such men are always popular, and dan was a general favorite, as the generous and honest fellow deserved to be. hearing that he was very sick, i went to see him. i found him very low, but he greeted me with a smile. "how are you today, dan?" i asked, in the offhand way of the old times. "it is all up with me, i guess," he replied, pausing to get breath between the words; "the doctor says i can't get out of this--i must leave in a day or two." he spoke in a matter-of-fact way, indicating that he intended to take death, as he had taken life, easy. "how do you feel about changing worlds, my old friend?" "i have no say in the matter. i have got to go, and that is all there is of it." that was all i ever got out of him. he told me he had not been to church for ten years, as "it was not in his line." he did not understand matters of that sort, he said, as his business was running a meat-market. he intended no disrespect to me or to sacred things--this was his way of putting the matter in his simple-heartedness. "shall i kneel here and pray with you?" i asked. "no; you needn't take the trouble, parson," he said, gently; "you see i've got to go, and that's all there is of it. i don't understand that sort of thing--it's not in my, line, you see. i've been in the meat business." "excuse me, my old friend, if i ask if you do not, as a dying man, have some thoughts about god and eternity?" "that's not in my line, and i couldn't do much thinking now any way. it's all right, parson--i've got to go, and old master will do right about it." thus he died without a prayer, and without a fear, and his case is left to the theologians who can understand it, and to the "old master" who will do right. i was called to see a lady who was dying at north beach, san francisco. her history was a singularly sad one, illustrating the ups and downs of california life in a startling manner. from opulence to poverty, and from poverty to sorrow, and from sorrow to death--these were the acts in the drama, and the curtain was about to fall on the last. on a previous visit i had pointed the poor sufferer to the lamb of god, and prayed at her bedside, leaving her calm and tearful. her only daughter, a sweet, fresh girl of eighteen, had two years ago betrothed herself to a young man from oregon, who had come to san francisco to study a profession. the dying mother had expressed a desire to see them married before her death, and i had been sent for to perform the ceremony. "she is unconscious, poor thing!" said a lady who was in attendance, "and she will fail of her dearest wish." the dying mother lay with a flushed face, breathing painfully, with closed eyes, and moaning piteously. suddenly her eyes opened, and she glanced inquiringly around the room. they understood her. the daughter and her betrothed were sent for. the mother's face brightened as they entered, and she turned to me and said, in a faint voice: "go on with the ceremony, or it will be too late for me. god bless you, darling!" she added as the daughter bent down sobbing, and kissed her. the bridal couple kneeled together by the bed of death, and the assembled friends stood around in solemn silence, while the beautiful formula of the church was repeated, the dying mother's eyes resting upon the kneeling daughter with an expression of unutterable tenderness. when the vows were taken that made them one, and their hands were clasped in token of plighted faith, she drew them both to her in a long embrace, and then almost instantly closed her eyes with a look of infinite restfulness, and never opened them again. of the notable men i met in the mines in the early days, there was one who piqued and puzzled my curiosity. he had the face of a saint with the habits of a debauchee. his pale and student-like features were of the most classic mold, and their expression singularly winning, save when at times a cynical sneer would suddenly flash over them like a cloud-shadow over a quiet landscape. he was a lawyer, and stood at the head of the bar. he was an orator whose silver voice and magnetic qualities often kindled the largest audiences into the wildest enthusiasm. nature had denied him no gift of body or mind requisite to success in life; but there was a fatal weakness in his moral constitution. he was an inveterate gambler, his large professional earnings going into the coffers of the faro and monte dealers. his violations of good morals in other respects were flagrant. he worked hard by day, and gave himself up to his vices at night. public opinion was not very exacting in those days, and his failings were condoned by a people who respected force and pluck, and made no close inquiries into a man's private life, because it would have been no easy thing to find one who, on the score of innocence, was entitled to cast the first stone. thus he lived from year to year, increasing his reputation as a lawyer of marked ability, and as a politician whose eloquence in every campaign was a tower of strength to his party. his fame spread until it filled the state, and his money still fed his vices. he never drank, and that cool, keen intellect never lost its balance, or failed him in any encounter on the hustings on at the bar. i often met him in public, but he never was known to go inside a church. once, when in a street conversation i casually made some reference to religion, a look of displeasure passed over his face, and he abruptly left me. i was agreeably surprised when, on more than one occasion, he sent me a substantial token of goodwill, but i was never able to analyze the motive that prompted him to do so. this remembrance softens the feelings with which these lines are penciled. he went to san francisco, but there was no change in his life. "it is the old story," said an acquaintance of whom i made inquiry concerning him: "he has a large and lucrative practice, and the gamblers get all he makes. he is getting gray, and he is failing a little. he is a strange being." it happened afterward that his office and mine were in the same building and on the same floor. as we met on the stairs, he would nod to me and pass on. i noticed that he was indeed "failing." he looked-weary and sad, and the cold or defiant gleam in his steel-gray eyes, was changed into a wistful and painful expression that was very pathetic. i did not dare to invade his reserve with any tender of sympathy. joyless and hopeless as he might be, i felt instinctively that he would play out his drama alone. perhaps this was a mistake on my part: he may have been hungry for the word i did not speak. god knows. i was not lacking in proper interest in his well-being, but i have since thought in such cases it is safest to speak. "what has become of b--?" said my landlord one day as we met in the hall. "i have been here to see him several times, and found his door locked, and his letters and newspapers have not been touched. there is something the matter, i fear." instantly i felt somehow that there was a tragedy in the air, and i had a strange feeling of awe as i passed the door of b--'s room., a policeman was brought, the lock forced, and we went in. a sickening odor of chloroform filled the room. the sight that met our gaze made us shudder. across the bed was lying the form of a man partly dressed, his head thrown back, his eyes staring upward, his limbs hanging loosely over the bedside. "is he dead?" was asked in a whisper. "no," said the officer, with his finger on b--'s wrist; "he is not dead yet, but he will never wake out of this. he has been lying thus two or three days." a physician was sent for, and all possible efforts made to rouse him, but in vain. about sunset the pulse ceased to beat, and it was only a lump of lifeless clay that lay there so still and stark. this was his death--the mystery of his life went back beyond my knowledge of him, and will only be known at the judgment-day. one of the gayest and brightest of all the young people gathered at a may-day picnic, just across the bay from san francisco, was ada d--. the only daughter of a wealthy citizen, living in one of the lovely valleys beyond the coast-range of mountains, beautiful in person and sunny in temper, she was a favorite in all the circle of her associations. though a petted child of fortune, she was not spoiled, envy itself was changed into affection in the presence of a spirit so gentle, unassuming, and loving. she had recently been graduated from one of the best schools, and her graces of character matched the brilliance of her pecuniary fortune. a few days after the may-day festival, as i was sitting in my office, a little before sunset, there was a knock at the door, and before i could answer the messenger entered hastily, saying: "i want you to go with me at once to amador valley. ada d--is dying, and wishes to be baptized. we just have time for the six o'clock boat to take us across the bay, where the carriage and horses are waiting for us. the distance is thirty miles, and we must run a race against death." we started at once: no minister of jesus christ hesitates to obey a summons like that. we reached the boat while the last taps of the last bell were being given, and were soon at the landing on the opposite side of the bay. springing ashore, we entered the vehicle which was in readiness. grasping the reins, my companion touched up the spirited team, and we struck across the valley. my driver was an old californian, skilled in all horse craft and road-craft. he spoke no word, putting his soul and body into his work, determined, as he had said, to make the thirty miles by nine o'clock. there was no abatement of speed after we struck the hills: what was lost in going up was regained in going down. the mettle of those california-bred horses was wonderful; the quick beating of their hoofs upon the graveled road was as regular as the motion of machinery, steam-driven. it was an exciting ride, and there was a weirdness in the sound of the night-breeze floating by us, and ghostly, shapes seemed looking at us from above and below, as we wound our way through the hills, while the bright stars shone like funeral-tapers over a world of death. death! how vivid and awful was its reality to me as i looked up at those shining worlds on high, and then upon the earth wrapped in darkness below! death! his sable coursers are swift, and we may be too late! the driver shared my thoughts, and lashed the panting horses to yet greater speed. my pulses beat rapidly as i counted the moments. "here we are!" he exclaimed, as we dashed down the hill and brought up at the gate. "it is eight minutes to nine," he added, glancing at his watch by the light of a lamp shining through the window. "she is alive, but speechless, and going fast," said the father, in a broken voice, as i entered the house. he led me to the chamber of the dying girl; the seal of death was upon her. i bent above her, and a look of recognition came into her eyes. not a moment was to be lost. "if you know me, my child, and can enter the meaning of what i say, indicate the fact if you can." there was a faint smile and a slight but significant inclination of the fair head as it lay enveloped with its wealth of chestnut curls. with her hands folded on her breast, and her eyes turned upward, the dying girl lay in listening attitude, while in a few words i explained the meaning of the sacred rite and pointed her to the lamb of god as the one sacrifice for sin. the family stood round the bed in awed and tearful silence. as the crystal sacramental drops fell upon her brow a smile flashed quickly over the pale face, there was a slight movement of the head--and she was gone! the upward look continued, and the smile never left the fair, sweet face. we fell upon our knees, and the prayer that followed was not for her, but for the bleeding hearts around the couch where she lay smiling in death. dave douglass was one of that circle of tennesseans who took prominent parts in the early history of california. he belonged to the sumner county douglasses, of tennessee, and had the family warmth of heart, impulsiveness, and courage, that nothing could daunt. in all the political contests of the early days he took an active part, and was regarded as an unflinching and unselfish partisan by his own party, and as an openhearted and generous antagonist by the other. he was elected secretary of state, and served the people with fidelity and efficiency. he was a man of a powerful physical frame, deep-chested, ruddy-, faced, blue-eyed, with just enough shagginess of eyebrows and heaviness of the under-jaw to indicate the indomitable pluck which was so strong an element in his character. he was a true douglass, as brave and true as any of the name that ever wore the kilt or swung a claymore in the land of bruce. his was a famous methodist family in tennessee, and though he knew more of politics than piety, he was a good friend to the church, and had regular preaching in the schoolhouse near his farm on the calaveras river. all the itinerants that traveled that circuit knew "douglass's schoolhouse" as an appointment, and shared liberally in the hospitality and purse of the general--(that was his title). "never give up the fight!" he said to me, with flashing eye, the last time i met him in stockton, pressing my hand with a warm clasp. it was while i was engaged in the effort to build a church in that place, and i had been telling him of the difficulties i had met in the work. that word and handclasp helped me. he was taken sick soon after. the disease had taken too strong a grasp upon him to be broken. he fought bravely a losing battle for several days. sunday morning came, a bright, balmy day. it was in the early summer. the cloudless sky was deep-blue, the sunbeams sparkled on the bosom of the calaveras, the birds were singing in the trees, and the perfume of the flowers filled the air and floated in through the open window to where the strong man lay dying. he had been affected with the delirium of fever during most of his sickness, but that was past, and he was facing death with an unclouded mind. "i think i am dying," he said, half inquiringly. "yes--is there any thing we can do for you?" his eyes closed for a few moments, and his lips moved as if in mental prayer. opening his eyes, he said: "sing one of the old camp-meeting songs." a preacher present struck up the hymn, "show pity, lord, o lord forgive." the dying man, composed to rest, lay with folded hands and listened with shortening breath and a rapt face, and thus he died, the words and the melody that had touched his boyish heart among the far-off hills of tennessee being the last sounds that fell upon his dying ear. we may hope that on that old camp-meeting song was wafted the prayer and trust of a penitent soul receiving the kingdom of heaven as a little child. during my pastorate at santa rosa, one of my occasional hearers was john i--. he was deputy-sheriff of sonoma county, and was noted for his quiet and determined courage. he was a man of few words, but the most reckless desperado knew that he could not be trifled with. when there was an arrest to be made that involved special peril, this reticent, low-voiced man was usually intrusted with the undertaking. he was of the good old primitive baptist stock from caswell county, north carolina, and had a lingering fondness for the peculiar views of that people. he had a weakness for strong drink that gave him trouble at times, but nobody doubted his integrity any more than they doubted his courage. his wife was an earnest methodist, one of a family of sisters remarkable for their excellent sense and strong religious characters. meeting him one day, just before my return to san francisco, he said, with a warmth of manner not common with him: "i am sorry you are going to leave santa rosa. you understand me, and if anybody can do me any good, you are the man." there was a tremor in his voice as he spoke, and he held my hand in a lingering grasp. yes, i knew him. i had seen him at church on more than one occasion with compressed lips struggling to conceal the strong emotion he felt, sometimes hastily wiping away an unbidden tear. the preacher, when his own soul is aglow and his sympathies all awakened and drawn out toward his hearers, is almost clairvoyant at times in his perception of their inner thoughts. i understood this man, though no disclosure had been made to me in words. i read his eye, and marked the wishful and anxious look that came over his face when his conscience was touched and his heart moved. yes, i knew him, for my sympathy had made me responsive, and his words, spoken sadly, thrilled me, and rolled upon my spirit the burden of a soul. his health, which had been broken by hardships and careless living, began to decline more rapidly. i heard that he had expressed a desire to see me, and made no delay in going to see him. i found him in bed, and much wasted. "i am glad you have come. i have been wanting to see you," he said, taking my hand. "i have been thinking of my duty to god for a good while, and have felt more than anybody has suspected. i want to do what i can and ought to do. you have made this matter a study, and you ought to understand it. i want you to help me." we had many interviews, and i did what i could to guide a penitent sinner to the sinner's friend. he was indeed a penitent sinner--shut out from the world and shut in with god, the merciful father was speaking to his soul, and all its depths were stirred. the patient, praying wife had a wishful look in her eyes as i came out of his room, and i knew her thought. god was leading him, and he was receptive of the truth that saves. he had one difficulty. "i hate meanness, or any thing that looks like it. it does look mean for me to turn to religion now that i am sick, after being so neglectful and wicked when i was well." "that thought is natural to a manly soul, but there is a snare in it. you are thinking what others may say, and your pride is touched. you are dealing with god only. ask only what will please him. the time for a man to do his duty is when he sees it and feels the obligation. let the past go--you cannot undo it, but it may be forgiven. the present and an eternal future are yours, my friend. "do what will please god, and all will be right." the still waters were reached, and his soul lay at rest in the arms of god. o sweet, sweet rest! infinitely sweet to the spirit long tossed upon the stormy sea of sin and remorse. o peace of god, the inflow into a human heart of the very life of the lord! it is the hidden mystery of love divine whispered to the listening ear of faith. it had come to him by its own law when he was ready to receive it. the great change had come to him--it looked out from his eyes and beamed from his face. he was baptized at night. the family had gathered in the room. in the solemn hush of the occasion the whispers of the night-breeze could be heard among the vines and flowers outside, and the rippling of the sparkling waters of santa rosa creek was audible. the sick man's face was luminous with the light that was from within. the solemn rite was finished, a tender and holy awe filled the room; it was the house of god and the gate of heaven. the wife, who was sitting near a window, rose, and noiselessly stepped to the bed, and without a word printed a kiss on her husband's forehead, while the joy that flushed her features told that the prayer of thirty years had been answered, we sung a hymn and parted with tears of silent joy. in a little while he crossed the river where we may mingle our voices again by and by. there is not money enough in the california hills to buy the memory of that visit to santa rosa. note: project gutenberg also has an html version of this file which includes the original illustrations. see 12911-h.htm or 12911-h.zip: (http://www.gutenberg.net/1/2/9/1/12911/12911-h/12911-h.htm) or (http://www.gutenberg.net/1/2/9/1/12911/12911-h.zip) a backward glance at eighty recollections & comment by charles a. murdock massachusetts 1841 humboldt bay 1855 san francisco 1864 1921 [illustration: a camera glance at eighty] this book is gratefully dedicated to the friends who inspired it contents chapter i. new england ii. a hidden harbor iii. nine years north iv. the real bret harte v. san francisco--the sixties vi. later san francisco vii. incidents in public service viii. an investment ix. by-product x. concerning persons xi. outings xii. occasional verse epilogue illustrations a camera glance at eighty humboldt bay, winship map francis bret harte (saroney, 1874) the clay-street office the day after thomas starr king (original given bret harte) horatio stebbins, san francisco, 1864-1900 horace davis, harvard in 1836 outings: the sierras, hawaii foreword in the autumn of 1920 the board of directors of the pacific coast conference of unitarian churches took note of the approaching eightieth birthday of mr. charles a. murdock, of san francisco. recalling mr. murdock's active service of all good causes, and more particularly his devotion to the cause of liberal religion through a period of more than half a century, the board decided to recognize the anniversary, which fell on january 26, 1921, by securing the publication of a volume of mr. murdock's essays. a committee was appointed to carry out the project, composed of rev. h.e.b. speight (chairman), rev. c.s.s. dutton, and rev. earl m. wilbur. the committee found a very ready response to its announcement of a subscription edition, and mr. murdock gave much time and thought to the preparation of material for the volume. "a backward glance at eighty" is now issued with the knowledge that its appearance is eagerly awaited by all mr. murdock's friends and by a large number of others who welcome new light upon the life of an earlier generation of pioneers. the publication of the book is an affectionate tribute to a good citizen, a staunch friend, a humble christian gentleman, and a fearless servant of truth--charles a. murdock. memorial committee. genesis in the beginning, the publication of this book is not the deliberate act of the octogenarian. separate causes seem to have co-operated independently to produce the result. several years ago, in a modest literary club, the late henry morse stephens, in his passion for historical material, urged me from time to time to devote my essays to early experiences in the north of the state and in san francisco. these papers were familiar to my friends, and as my eightieth birthday approached they asked that i add to them introductory and connecting chapters and publish a memorial volume. to satisfy me that it would find acceptance they secured advance orders to cover the expense. under these conditions i could not but accede to their request. i would subordinate an unimportant personal life. my purpose is to recall conditions and experiences that may prove of historical interest and to express some of the conclusions and convictions formed in an active and happy life. i wish to express my gratitude to the members of the committee and to my friend, george prescott vance, for suggestions and assistance in preparation and publication. c.a.m. chapter i new england my very early memories alternate between my grandfather's farm in leominster, massachusetts, and the pemberton house in boston. my father and mother, both born in leominster, were schoolmates, and in due time they married. father was at first a clerk in the country store, but at an early age became the tavern-keeper. i was born on january 26, 1841. soon thereafter father took charge of the pemberton house on howard street, which developed into whig headquarters. being the oldest grandson, i was welcome at the old homestead, and i was so well off under the united care of my aunts that i spent a fair part of my life in the country. my father was a descendant of robert murdock (of roxbury), who left scotland in 1688, and whose descendants settled in newton. my father's branch removed to winchendon, home of tubs and pails. my grandfather (abel) moved to leominster and later settled in worcester, where he died when i was a small boy. my father's mother was a moore, also of scotch ancestry. she died young, and on my father's side there was no family home to visit. my mother's father was deacon charles hills, descended from joseph hills, who came from england in 1634. nearly every new england town was devoted to some special industry, and leominster was given to the manufacture of horn combs. the industry was established by a hills ancestor, and when i was born four hills brothers were co-operative comb-makers, carrying on the business in connection with small farming. the proprietors were the employees. if others were required, they could be readily secured at the going wages of one dollar a day. my grandfather was the oldest of the brothers. when he married betsy buss his father set aside for him twenty acres of the home farm, and here he built the house in which he lived for forty years, raising a family of ten children. i remember quite clearly my great-grandfather silas hills. he was old and querulous, and could certainly scold; but now that i know that he was born in 1760, and had nineteen brothers and sisters, i think of him with compassion and wonder. it connects me with the distant past to think i remember a man who was sixteen years old when the declaration of independence was signed. he died at ninety-five, which induces apprehension. my grandfather's house faced the country road that ran north over the rolling hills among the stone-walled farms, and was about a mile from the common that marked the center of the town. it was white, of course, with green blinds. the garden in front was fragrant from castilian roses, sweet williams, and pinks. there were lilacs and a barberry-bush. a spacious hall bisected the house. the south front room was sacred to funerals and weddings; we seldom entered it. back of that was grandma's room. stairs in the hall led to two sleeping-rooms above. the north front room was "the parlor," but seldom used. there on the center-table reposed baxter's "saints' rest" and young's "night thoughts." the fireplace flue so seldom held a fire that the swallows utilized the chimney for their nests. back of this was the dining-room, in which we lived. it had a large brick oven and a serviceable fireplace. the kitchen was an ell, from which stretched woodshed, carriage-house, pigpen, smoking-house, etc. currant and quince bushes, rhubarb, mulberry, maple, and butternut trees were scattered about. an apple orchard helped to increase the frugal income. we raised corn and pumpkins, and hay for the horse and cows. the corn was gathered into the barn across the road, and a husking-bee gave occasion for mild merrymaking. as necessity arose the dried ears were shelled and the kernels taken to the mill, where an honest portion was taken for grist. the corn-meal bin was the source of supply for all demands for breakfast cereal. hasty-pudding never palled. small incomes sufficed. our own bacon, pork, spare-rib, and souse, our own butter, eggs, and vegetables, with occasional poultry, made us little dependent on others. one of the great-uncles was a sportsman, and snared rabbits and pickerel, thus extending our bill of fare. bread and pies came from the weekly baking, to say nothing of beans and codfish. berries from the pasture and nuts from the woods were plentiful. for lights we were dependent on tallow candles or whale-oil, and soap was mostly home-made. life was simple but happy. the small boy had small duties. he must pick up chips, feed the hens, hunt eggs, sprout potatoes, and weed the garden. but he had fun the year round, varying with the seasons, but culminating with the winter, when severity was unheeded in the joy of coasting, skating, and sleighing in the daytime, and apples, chestnuts, and pop-corn in the long evenings. i never tired of watching my grandfather and his brothers as they worked in their shops. the combs were not the simple instruments we now use to separate and arrange the hair, but ornamental structures that women wore at the back of the head to control their supposedly surplus locks. they were associated with spanish beauties, and at their best estate were made of shell, but our combs were of horn and of great variety. in the better quality, shell was closely imitated, but some were frankly horn and ornamented by the application of aquafortis in patterns artistic or grotesque according to the taste and ability of the operator. the horns were sawed, split, boiled in oil, pressed flat, and then died out ready to be fashioned into the shape required for the special product. this was done in a separate little shop by uncle silas and uncle alvah. uncle emerson then rubbed and polished them in the literally one-horsepower factory, and grandfather bent and packed them for the market. the power was supplied by a patient horse, "log cabin" by name, denoting the date of his acquisition in the harrison campaign. all day the faithful nag trod a horizontal wheel in the cellar, which gave way to his efforts and generated the power that was transmitted by belt to the simple machinery above. uncle emerson generally sung psalm-tunes as he worked. deacon hills, as he was always called, was finisher, packer, and business manager. i was interested to notice that in doing up the dozen combs in a package he always happened to select the best one to tie on the outside as a sample. that was his nearest approach to dishonesty. he was a thoroughly good man, but burdened and grave. i do not know that i ever heard him laugh, and he seldom, if ever, smiled. he worked hard, was faithful to every duty, and no doubt loved his family; but soberness was inbred. he read the _cultivator_, the _christian register_, and the almanac. after the manner of his time, he was kind and helpful; but life was hard and joyless. he was greatly respected and was honored by a period of service as representative in the general court. my grandmother was a gentle, patient soul, living for her family, wholly unselfish and incapable of complaint. she was placid and cheerful, courageous and trusting. i had four fine aunts, two of whom were then unmarried and devoted to the small boy. one was a veritable ray of sunshine; the other, gifted of mind and nearest my age, was most companionable. only one son lived to manhood. he had gone from the home, but faithfully each year returned from the city to observe thanksgiving, the great day of new england. holidays were somewhat infrequent. fourth of july and muster, of course, were not forgotten, and while christmas was almost unnoticed thanksgiving we never failed to mark with all its social and religious significance. almost everybody went to meeting, and the sermon, commonly reviewing the year, was regarded as an event. the home-coming of the absent family members and the reunion at a bountiful dinner became the universal custom. there were no distractions in the way of professional football or other games. the service, the family, and plenty of good things to eat engrossed the day. it was a time of rejoicing--and unlimited pie. sunday was strictly observed. grandfather always blacked his boots before sundown of saturday night, and on sunday anything but going to meeting was regarded with suspicion, especially if it was associated with any form of enjoyment. in summer "log cabin" was hitched into the shafts of the chaise, and with gait slightly accelerated beyond the daily habit jogged to town and was deposited in the church shed during the service. at noon we rejoined him and ate our ginger-bread and cheese while he disposed of his luncheon of oats. then we went back to sunday-school, and he rested or fought flies. in winter he was decked with bells and hitched in the sleigh. plenty of robes and a foot-stove, or at least a slab of heated soap-stone, provided for grandmother's comfort. the church when it was formed was named "the first congregational." when it became unitarian, the word, in parentheses, was added. the second congregational was always called "the orthodox." the church building was a fine example of early architecture. the steeple was high, the walls were white, the pews were square. on a tablet at the right of the pulpit the ten commandments were inscribed, and at the left the beatitudes were found. the first minister i remember was saintly hiram withington, who won my loyalty by his interest manifested by standing me up by the door-jamb and marking my growth from call to call. i remember rufus p. stebbins, the former minister, who married my father and mother and refused a fee because my father had always cut his hair in the barberless days of old. amos a. smith was later in succession. i loved him for his goodness. sunday-school was always a matter of course, and was never dreaded. i early enjoyed the rollo books and later reveled in mayne reid. the haymow in the barn and a blessed knothole are associated with many happy hours. reading has dangers. i think one of the first books i ever read was a bound volume of _merry's museum_. there was a continued story recounting the adventures of one dick boldhero. it was illustrated with horrible woodcuts. one of them showed dick bearing on a spirited charger the clasped form of the heroine, whom he had abducted. it impressed me deeply. i recognized no distinction of sex or attractiveness and lived in terror of suffering abduction. when i saw a stranger coming i would run into the shop and clasp my arms around some post until i felt the danger past. this must have been very early in my career. indeed one of my aunts must have done the reading, leaving me to draw distress from the thrilling illustrations. a very early trial was connected with a visit to a school. i was getting proud of my ability to spell small words. a primer-maker had attempted to help the association of letters with objects by placing them in juxtaposition, but through a mistake he led me to my undoing. i knew my letters and i knew some things. i plainly distinguished the letters p-a-n. against them i was puzzled by a picture of a spoon, and with credulity, perhaps characteristic, i blurted out "p-a-n--spoon," whereat to my great discomfiture everybody laughed. i have never liked being laughed at from that day to this. i am glad that i left new england early, but i am thankful that it was not before i realized the loveliness of the arbutus as it braved the snow and smiled at the returning sun, nor that i made forts or played morris in the snow at school. i have passed on from my first impressions in the country perhaps unwarrantedly. it is hard to differentiate consistently. i may have mixed early memories with more mature realization. i did not live with my grandmother continuously. i went back and forth as convenience and others' desires prompted. i do not know what impressions of life in the pemberton house came first. very early i remember helping my busy little mother, who in the spring of the year uncorded all the bedsteads and made life miserable for the festive bedbugs by an application of whale oil from a capable feather applied to the inside of all holes through which the ropes ran. the re-cording of the beds was a tedious process requiring two persons, and i soon grew big enough to count as one. i remember also the little triangular tin candlesticks that we inserted at the base of each of the very small panes of the window when we illuminated the hotel on special nights. i distinctly recall the quivering of the full glasses of jelly on tapering disks that formed attractive table ornaments. daniel webster was often the central figure at banquets in the pemberton. general sam houston, senator from texas, was also entertained, for i remember that my father told me of an incident that occurred many years after, when he passed through san antonio. as he strolled through the city he saw the senator across the street, but, supposing that he would not be remembered, had no thought of speaking, whereupon houston called out, "young man, are you not going to speak to me!" my father replied that he had not supposed that he would be remembered. "of course i remember meeting you at the pemberton house in boston." i remember some of the boarders, regular and transient, distinguished and otherwise. there was a young grocery clerk who used to hold me in his lap and talk to me. he became one of the best of california's governors, frederick f. low, and was a close friend of thomas starr king. a wit on a san francisco paper once published at thanksgiving time "a thanksgiving proclamation by our stuttering reporter--'praise god from whom all blessings f-f-low.'" in my memory he is associated with haymaker square. i well remember the famous circus clown of the period, joe pentland, very serious and proper when not professionally funny. a minstrel who made a great hit with "jim crow" once gave me a valuable lesson on table manners. one barrett, state treasurer, was a boarder. he had a standing order: "roast beef, rare and fat; gravy from the dish." madame biscaccianti, of the italian opera, graced our table. so did the original drew family. the hotel adjoined the howard athenaeum, and i profited from peeping privileges to the extent of many pins. i recall some wonderful trained animals--van amberg's, i think. a lion descended from back-stage and crawled with stealth upon a sleeping traveler in the foreground. it was thrilling but harmless. there were also some viennese dancers, who introduced, i believe, the cracovienne. i remember a "sissy madigan," who seemed a wonder of beauty and charm. there was great excitement when the athenaeum caught on fire. i can see the trunks being dragged down the stairs to the damage of the banisters, and great confusion and dismay among our boarders. a small boy was hurried in his nightie across the street and kept till all danger had passed. a very early memory is the marching through the streets of soldiers bound for the mexican war. off and on, i lived in boston till 1849, when my father left for california and the family returned to leominster. my first school in boston was in the basement of park street church. hermann clarke, son of our minister, rev. james freeman clarke, was a fellow pupil. afterward i went to the mayhew grammar school, connected in my mind with a mild chastisement for imitating a trombone when a procession passed by. the only other punishment i recall was a spanking by my father for playing "hookey" and roaming in the public garden. i remember sunday-school parades through certain public streets. but the great event was the joining of all the day schools in the great parade when cochituate water was introduced into the city. it was a proud moment when the fountain in the frogpond on the common threw on high the water prodigiously brought from far cochituate. another boston memory is the boston theater, where william warren reigned. cinderella and her pumpkin carriage are fresh in my mind. i also recall a waxwork representation of the birth in the manger. i still can see the heads of the cattle, the spreading horns, and the blessed babe. as i recall my early boyhood, many changes in customs seem suggested. there may be trundle-beds in these days, but i never see them. no fathers wear boots in this era, and bootjacks are as extinct as the dodo. i have kept a few letters written by my mother when i was away from her. they were written on a flat sheet, afterward folded and fastened by a wafer. envelopes had not arrived; neither had postage-stamps. sealing-wax was then in vogue and red tape for important documents. in all well-regulated dwellings there were whatnots in the corner with shells and waxworks and other objects of beauty or mild interest. the pictures did not move--they were fixed in the family album. the musical instruments most in evidence were jew's-harps and harmonicas. the rollo books were well calculated to make a boy sleepy. the franconia books were more attractive, and "the green mountain boy" was thrilling. a small boy's wildest dissipation was rolling a hoop. and now california casts her shadow. my father was an early victim. i remember his parting admonition, as he was a man of few words and seldom offered advice. "be careful," he said, "of wronging others. do not repeat anything you hear that reflects on another. it is a pretty good rule, when you cannot speak well of another, to say nothing at all." he must have said more, but that is all that i recall. father felt that in two years he would return with enough money to provide for our needs. in the meantime we could live at less expense and in greater safety in the country. we returned to the town we all loved, and the two years stretched to six. we three children went to school, my mother keeping house. in 1851 my grandfather died, and in 1853 my grandmother joined him. during these leominster days we greatly enjoyed a visit from my father's sister, charlotte, with her husband, john downes, an astronomer connected with harvard university. they were charming people, bringing a new atmosphere from their cambridge home. uncle john tried to convince me that by dividing the heavens i might count the visible stars, but he did not succeed. he wrote me a fine, friendly letter on his returning home, in 1852, using a sheet of blue paper giving on the third page a view of the college buildings and a procession of the alumni as they left the church sept. 6, 1836. in the letter he pronounced it a very good view. it is presented elsewhere, in connection with the picture of a friend who entered the university a few years later. school life was pleasant and i suppose fairly profitable. until i entered high school i attended the ungraded district school. it was on the edge of a wood, and a source of recess pleasure was making umbrageous homes of pine boughs. on the last day of school the school committee, the leading minister, the ablest lawyer, and the best-loved doctor were present to review and address us. we took much pride in the decoration. wreaths of plaited leaves were twisted around the stovepipe; the top of the stove was banked with pond-lilies gathered from a pond in our woods. medals were primitive. for a week i wore a pierced ninepence in evidence of my proficiency in mental arithmetic; then it passed to stronger hands. according to present standards we indulged in precious little amusement. entertainments were few. once in a while a circus came to town, and there were organizations of musical attractions like the hutchinson family and the swiss bell ringers. ossian e. dodge was a name with which to conjure, and a panorama was sometimes unrolled alternating with dissolving views. seen in retrospect, they all seem tame and unalluring. the lyceum was, the feature of strongest interest to the grownups. lectures gave them a chance to see men of note like wendell phillips, emerson, or william lloyd garrison. even boys could enjoy poets of the size of john g. saxe. well do i remember the distrust felt for abolitionists. i had an uncle who entertained fred douglass and was ready at any time to help a fugitive slave to canada. he was considered dangerous. he was a shoemaker, and i remember how he would drop his work when no one was by and get up to pace the floor and rehearse a speech he probably never would make. occasionally our singing-school would give a concert, and once in a farmers' chorus i was costumed in a smock cut down from one of grandfather's. i carried a sickle and joined in "through lanes with hedgerows, pearly." i kept up in the singing but let my attention wander as the farmers made their exit and did not notice that i was left till the other boys were almost off the stage. i then skipped after them, swinging my scythe in chagrin. in the high school we gave an exhibition in which we enacted some scotch scene. i think it had to do with roderick dhu. we were to be costumed, and i was bothered about kilts and things. mr. phillips, the principal, suggested that the stage be set with small evergreen trees. the picture of them in my mind's eye brought relief, and i impulsively exclaimed, "that will be good, because we will not have to wear pants," meaning, of course, the kilts. he had a sense of humor and was a tease. he pretended to take me literally, and raised a laugh as he said, "why, murdock!" one bitterly cold night we went to fitchburg, five miles away, to describe the various pictures given at a magic-lantern exhibition. my share was a few lines on a poor view of scarborough castle. at this distance it seems like a poor investment of energy. i wonder if modern education has not made some progress in a generation. here was a boy of fourteen who had never studied history or physics or physiology and was assigned nothing but latin, algebra and grammar. i left at fourteen and a half to come to california, knowing little but what i had picked up accidentally. a diary of my voyage, dating from june 4, 1855, vividly illustrates the character of the english inculcated by the school of the period. it refers to the "crowd assembled to witness our departure." it recounts all we saw, beginning with washacum pond, which we passed on our way to worcester: "of considerable magnitude, ... and the small islands which dot its surface render it very beautiful." the buildings of new york impressed the little prig greatly. trinity church he pronounces "one of the most splendid edifices which i ever saw," and he waxes into "opalian" eloquence over barnum's american museum, which was "illuminated from basement to attic." we sailed on the "george law," arriving at aspinwall, the eastern terminal of the panama railroad, in ten days. crossing the isthmus, with its wonders of tropical foliage and varied monkeys, gave a glimpse of a new world. we left panama june 16th and arrived at san francisco on the morning of the 30th. let the diary tell the tale of the beginning of life in california: "i arose about 4-1/2 this morning and went on deck. we were then in the golden gate, which is the entrance into san francisco bay. on each side of us was high land. on the left-hand side was a lighthouse, and the light was still burning. on my right hand was the outer telegraph building. when they see us they telegraph to another place, from which they telegraph all over san francisco. when we were going in there was a strong ebb tide. we arrived at the wharf a little after five o'clock. the first thing which i did was to look for my father. him i did not see." father had been detained in humboldt by the burning of the connecting steamer, so we went to wilson's exchange in sansome near sacramento street, and in the afternoon took the "senator" for sacramento, where my uncle and aunt lived. the part of a day in san francisco was used to the full in prospecting the strange city. we walked its streets and climbed its hills, much interested in all we saw. the line of people waiting for their mail up at portsmouth square was perhaps the most novel sight. a race up the bay, waiting for the tide at benicia, sticking on the "hog's back" in the night, and the surprise of a flat, checkerboard city were the most impressive experiences of the trip to sacramento. a month or so on this compulsory visit passed very pleasantly. we found fresh delight in watching the chinese and their habits. we had never seen a specimen before. a very pleasant picnic and celebration on the fourth of july was another attractive novelty. cheap john auctions and frequent fires afforded amusement and excitement, and we learned to drink muddy water without protest. on the 15th the diary records: "last night about 12 o'clock i woke, and who should i behold, standing by me, but my father! is it possible that after a separation of nearly six years i have at last met my father? it is even so. this form above me is, indeed, my father's." the day's entry concludes: "i have really enjoyed myself today. i like the idea of a father very well." we were compelled to await an upcoast steamer till august, when that adventurous craft, the steamer "mckim," now newly named the "humboldt," resumed sea-voyages. the pacific does not uniformly justify the name, but this time it completely succeeded. the ocean was as smooth as the deadest mill-pond--not a breath of wind or a ripple of the placid surface. treacherous humboldt bar, sometimes a mountain of danger, did not even disclose its location. the tar from the ancient seams of the humboldt's decks responded to the glowing sun until pacing the deck was impossible, but sea-sickness was no less so. we lazily steamed into the beautiful harbor, up past eureka, her streets still occupied by stumps, and on to the ambitious pier stretching nearly two miles from uniontown to deep water. and now that the surroundings may be better understood, let me digress from the story of my boyhood and touch on the early romance of humboldt bay--its discovery and settlement. chapter ii a hidden harbor the northwesterly corner of california is a region apart. in its physical characteristics and in its history it has little in common with the rest of the state. with no glamour of spanish occupancy, its romance is of quite another type. at the time of the discovery of gold in california the northwestern portion of the state was almost unknown territory. for seven hundred miles, from fort ross to the mouth of the columbia, there stretched a practically uncharted coast. a few headlands were designated on the imperfect map and a few streams were poorly sketched in, but the great domain had simply been approached from the sea and its characteristics were mostly a matter of conjecture. so far as is known, not a white man lived in all california west of the coast range and north of fort ross. here is, generally speaking, a mountainous region heavily timbered along the coast, diversified with river valleys and rolling hills. a marked peculiarity is its sharp slope toward the northwest for its entire length. east of the coast range the sacramento river flows due south, while to the west of the broken mountains all the streams flow northwesterly--more northerly than westerly. eel river flows about 130 miles northerly and, say, forty miles westerly. the same course is taken by the mattole, the mad, and the trinity rivers. the watershed of this corner to the northwest is extensive, including a good part of what are now mendocino, trinity, siskiyou, humboldt, and del norte counties. the drainage of the westerly slope of the mountain ranges north and west of shasta reaches the pacific with difficulty. the klamath river flows southwest for 120 miles until it flanks the siskiyous. it there meets the trinity, which flows northwest. the combined rivers take the direction of the trinity, but the name of the klamath prevails. it enters the ocean about thirty miles south of the oregon line. the whole region is extremely mountainous. the course of the river is tortuous, winding among the mountains. the water-flow shows the general trend of the ranges; but most of the rivers have numerous forks, indicating transverse ridges. from an aeroplane the mountains of northern california would suggest an immense drove of sleeping razor-backed hogs nestling against one another to keep warm, most of their snouts pointed northwest. less than one-fourth of the land is tillable, and not more than a quarter of that is level. yet it is a beautiful, interesting and valuable country, largely diversified, with valuable forests, fine mountain ranges, gently rolling hills, rich river bottoms, and, on the upper trinity, gold-bearing bars. mendocino (in humboldt county) was given its significant name about 1543. when heceta and bodega in 1775 were searching the coast for harbors, they anchored under the lee of the next northerly headland. after the pious manner of the time, having left san blas on trinity sunday, they named their haven trinidad. their arrival was six days before the battle of bunker hill. it is about forty-five miles from cape mendocino to trinidad. the bold, mountainous hills, though they often reach the ocean, are somewhat depressed between these points. halfway between them lies humboldt bay, a capacious harbor with a tidal area of twenty-eight miles. it is the best and almost the only harbor from san francisco to puget sound. it is fourteen miles long, in shape like an elongated human ear. it eluded discovery with even greater success than san francisco bay, and the story of its final settlement is striking and romantic. neither cabrillo nor heceta nor drake makes mention of it. in 1792 vancouver followed the coast searchingly, but when he anchored in what he called the "nook" of trinidad he was entirely ignorant of a near-by harbor. we must bear in mind that spain had but the slightest acquaintance with the empire she claimed. the occasional visits of navigators did not extend her knowledge of the great domain. it is nevertheless surprising that in the long course of the passage of the galleons to and from the philippines the bays of san francisco and humboldt should not have been found even by accident. the nearest settlement was the russian colony near bodega, one hundred and seventy-five miles to the south. in 1811 kuskoff found a river entering the ocean near the point. he called it slavianski, but general vallejo rescued us from that when he referred to it as russian river. the land was bought from the indians for a trifle. madrid was applied to for a title, but the spaniards declined to give it. the russians held possession, however, and proceeded with cultivation. to better protect their claims, nineteen miles up the coast, they erected a stockade mounting twenty guns. they called the fort kosstromitinoff, but the spaniards referred to it as _el fuerte de los rusos_, which was anglicized as fort russ, and, finally, as fort ross. the colony prospered for a while, but sealing "pinched out" and the territory occupied was too small to satisfy agricultural needs. in 1841 the russians sold the whole possession to general sutter for thirty thousand dollars and withdrew from california, returning to alaska. in 1827 a party of adventurers started north from fort ross for oregon, following the coast. one jedidiah smith, a trapper, was the leader. it is said that smith river, near the oregon line, was named for him. somewhere on the way all but four were reported killed by the indians. they are supposed to have been the first white men to enter the humboldt country. among the very early settlers in california was pearson b. redding, who lived on a ranch near mount shasta. in 1845, on a trapping expedition, he struck west through a divide in the coast range and discovered a good-sized, rapid river flowing to the west. from its direction and the habit of rivers to seek the sea, he concluded that it was likely to reach the pacific at about the latitude of trinidad, named seventy years before. he thereupon gave it the name of trinity, and in due time left it running and returned to his home. three years passed, and gold was discovered by marshall. redding was interested and curious and visited the scene of marshall's find. the american river and its bars reminded him of the trinity, and when he returned to his home he organized a party to prospect it. gold was found in moderate quantities, especially on the upper portions. the trinity mines extended confidence and added to the excitement. camps sprang up on every bar. the town of weaverville took the lead, and still holds it. quite a population followed and the matter of provisioning it became serious. the base of supplies was sacramento, two hundred miles distant and over a range of mountains. to the coast it could not be more than seventy miles. if the trinity entered a bay or was navigable, it would be a great saving and of tremendous advantage. the probability or possibility was alluring and was increasingly discussed. in october, 1849, there were at rich bar forty miners short of provisions and ready for any adventure. the indians reported that eight suns to the west was a large bay with fertile land and tall trees. a vision of a second san francisco, a port for all northern california, urged them to try for it. twenty-four men agreed to join the party, and the fifth of november was set for the start. dr. josiah gregg was chosen leader and two indians were engaged as guides. when the day arrived the rain was pouring and sixteen of the men and the two guides backed out, but the remaining eight were courageous (or foolhardy) and not to be thwarted. with a number of pack animals and eight days' supplies they started up the slippery mountainside. at the summit they encountered a snowstorm and camped for the night. in the morning they faced a western view that would have discouraged most men--a mass of mountains, rough-carved and snow-capped, with main ridges parallel on a northwesterly line. in every direction to the most distant horizon stretched these forbidding mountains. the distance to the ocean was uncertain, and their course to it meant surmounting ridge after ridge of the intervening mountains. they plunged down and on, crossed a swollen stream, and crawled up the eastern side of the next ridge. for six days this performance was repeated. then they reached a large stream with an almost unsurmountable mountain to the west. they followed down the stream until they found it joined another of about equal size. they had discovered the far-flowing south fork of the trinity. they managed to swim the united river and found a large indian village, apparently giving the inhabitants their first view of white men. the natives all fled in fright, leaving their camps to the strange beings. the invaders helped themselves to the smoked salmon that was plentiful, leaving flour in exchange. at dusk about eighty of the fighting sex returned with renewed courage, and threateningly. it took diplomacy to postpone an attack till morning, when powder would be dry. they relied upon a display of magic power from their firearms that would impress superior numbers with the senselessness of hostilities. they did not sleep in great security, and early in the morning proceeded with the demonstration, upon which much depended. when they set up a target and at sixty yards pierced a scrap of paper and the tree to which it was pinned the effect was satisfactory. the indians were astonished at the feat, but equally impressed by the unaccountable noise from the explosion. they became very friendly, warned the wonder-workers of the danger to be encountered if they headed north, where indians were many and fierce, and told them to keep due west. the perilous journey was continued by the ascent of another mountainside. provisions soon became very scarce, nothing but flour remaining, and little of that. on the 18th they went dinnerless to their cold blankets. their animals had been without food for two days, but the next morning they found grass. a redwood forest was soon encountered, and new difficulties developed. the underbrush was dense and no trails were found. fallen trees made progress very slow. two miles a day was all they could accomplish. they painfully worked through the section of the marvelous redwood belt destined to astonish the world, reaching a small prairie, where they camped. the following day they devoted to hunting, luckily killing a number of deer. here they remained several days, drying the venison in the meantime; but when, their strength recuperated, they resumed their journey, the meat was soon exhausted. three days of fasting for man and beast followed. two of the horses were left to their fate. then another prairie yielded more venison and the meat of three bears. for three weeks they struggled on; life was sustained at times by bitter acorns alone. at length the welcome sound of surf was heard, but three days passed before they reached the ocean. three of the animals had died of starvation in the last stretch of the forest. the men had not eaten for two days, and devoted the first day on the beach to securing food. one shot a bald eagle; another found a raven devouring a cast-up fish, both of which he secured. all were stewed together, and a good night's sleep followed the questionable meal. the party struck the coast near the headland that in 1775 had been named trinidad, but not being aware of this fact they named it, for their leader, gregg's point. after two days' feasting on mussels and dried salmon obtained from the indians, they kept on south. soon after crossing a small stream, now named little river, they came to one by no means so little. dr. gregg insisted on getting out his instruments and ascertaining the latitude, but the others had no scientific interest and were in a hurry to go on. they hired indians to row them across in canoes, and all except the doctor bundled in. finding himself about to be left, he grabbed up his instruments and waded out into the stream to reach the canoe, which had no intention of leaving him. he got in, wet and very angry, nursing his wrath till shore was reached; then he treated his companions to some vigorous language. they responded in kind, and the altercation became so violent that the row gave the stream its name, mad river. they continued down the beach, camping when night overtook them. wood, the chronicler of the expedition, [footnote: "the narrative of l.k. wood," published many years after, and largely incorporated in bledsoe's "history of the indian wars of northern california," is the source of most of the incidents relating to gregg's party embraced in this chapter.] and buck went in different directions to find water. wood returned first with a bucketful, brackish and poor. buck soon after arrived with a supply that looked much better, but when gregg sampled it he made a wry face and asked buck where he found it. he replied that he dipped it out of a smooth lake about a half mile distant. it was good plain salt water; they had discovered the mythical bay--or supposed they had. they credulously named it trinity, expecting to come to the river later. the next day they proceeded down the narrow sand strip that now bounds the west side of humboldt bay, but when they reached the harbor entrance from the ocean they were compelled to retrace their steps and try the east shore. the following day they headed the bay, camping at a beautiful plateau on the edge of the redwood belt, giving a fine view of a noble landlocked harbor and a rich stretch of bottom land reaching to mad river. here they found an abundant spring, and narrowly missed a good supper; for they shot a large elk, which, to their great disappointment, took to the brush. it was found dead the next morning, and its head, roasted in ashes, constituted a happy christmas dinner--for december 25th had arrived, completing an even fifty days since the start from rich bar. they proceeded leisurely down the east side of the bay, stopping the second day nearly opposite the entrance. it seemed a likely place for a townsite, and they honored the water-dipping discoverer by calling it bucksport. then they went on, crossing the little stream now named elk river, and camping near what was subsequently called humboldt point. they were disappointed that no river of importance emptied into so fine a bay, but they realized the importance of such a harbor and the value of the soil and timber. they were, however, in no condition to settle, or even to tarry. their health and strength were impaired, ammunition was practically exhausted, and there were no supplies. they would come back, but now they must reach civilization. it was midwinter and raining almost constantly. they had little idea of distance, but knew there were settlers to the south, and that they must reach them or starve. so they turned from the bay they had found to save their lives. the third day they reached a large river flowing from the south, entering the ocean a few miles south of the bay. as they reached it they met two very old indians loaded down with eels just taken from the river, which the indians freely shared with the travelers. they were so impressed with them and more that followed that they bestowed on the magnificent river which with many branches drains one of the most majestic domains on earth the insignificant, almost sacrilegious name of _eel_! for two days they camped, consuming eels and discussing the future. a most unfortunate difference developed, dividing the little group of men who had suffered together so long. gregg and three others favored following the ocean beach. the other four, headed by wood, were of the opinion that the better course would be to follow up eel river to its head, crossing the probably narrow divide and following down some stream headed either south or east. neither party would yield and they parted company, each almost hopeless. wood and his companions soon found their plan beset with great difficulties. spurs of the mountains came to the river's edge and cut off ascent. after five days they left the river and sought a mountain ridge. a heavy snowfall added to their discomfiture. they killed a small deer, and camped for five days, devouring it thankfully. compelled by the snow, they returned to the river-bed, the skin of the deer their only food. one morning they met and shot at five grizzly bears, but none were killed. the next morning in a mountain gully eight ugly grizzlies faced them. in desperation they determined to attack. wood and wilson were to advance and fire. the others held themselves in reserve--one of them up a tree. at fifty feet each selected a bear and fired. wilson killed his bear; wood thought he had finished his. the beast fell, biting the earth and writhing in agony. wilson sensibly climbed a tree and called upon wood to do likewise. he started to first reload his rifle and the ball stuck. when the two shots were fired five of the bears started up the mountain, but one sat quietly on its haunches watching proceedings. as wood struggled with his refractory bullet it started for him. he gained a small tree and climbed beyond reach. unable to load, he used his rifle to beat back the beast as it tried to claw him. to his horror the bear he thought was killed rose to its feet and furiously charged the tree, breaking it down at once. wood landed on his feet and ran down the mountain to a small buckeye, the bear after him. he managed to hook his arm around the tree, swinging his body clear. the wounded bear was carried by its momentum well down the mountain. wood ran for another tree, the other bear close after him, snapping at his heels. before he could climb out of reach he was grabbed by the ankle and pulled down. the wounded bear came jumping up the mountain and caught him by the shoulder. they pulled against each other as if to dismember him. his hip was dislocated and he suffered some painful flesh wounds. his clothing was stripped from his body and he felt the end had come, but the bears seemed disinclined to seize his flesh. they were evidently suspicious of white meat. finally one disappeared up the ravine, while the other sat down a hundred yards away, and keenly watched him. as long as he kept perfectly still the bear was quiet, but if he moved at all it rushed upon him. wilson came to his aid and both finally managed to climb trees beyond reach. the bear then sat down between the trees, watching both and growling threateningly if either moved. it finally tired of the game and to their great relief disappeared up the mountain. wood, suffering acutely, was carried down to the camp, where they remained twelve days, subsisting on the bear wilson had killed. wood grew worse instead of better, and the situation was grave. little ammunition was left, they were practically without shoes or clothing, and certain death seemed to face them. wood urged them to seek their own safety, saying they could leave him with the indians, or put an end to his sufferings at any time. failing to induce the indians to take him, it was decided to try to bind him on his horse and take him along on the hard journey. he suffered torture, but it was a day at a time and he had great fortitude. after ten days of incredible suffering they reached the ranch of mrs. mark west, thirty miles from sonoma. the date was february 17th, one hundred and four days from rich bar. the four who started to follow the beach had experiences no less trying. they found it impossible to accomplish their purpose. bold mountains came quite to the shore and blocked the way. they finally struck east for the sacramento valley. they were short of food and suffered unutterably. dr. gregg grew weaker day by day until he fell from his horse and died from starvation, speaking no word. the other three pushed on and managed to reach sacramento a few days after the wood party arrived at sonoma. while these adventurous miners were prosecuting the search for the mythical harbor, enterprising citizens of san francisco renewed efforts to reach it from the ocean. in december, 1849, soon after wood and his companions started from the trinity river, the brig "cameo" was dispatched north to search carefully for a port. she returned without success, but was again dispatched. on this trip she rediscovered trinidad. interest grew, and by march of 1850 not less than forty vessels were enlisted in the search. my father, who left boston early in 1849, going by panama and the chagres river, had been through three fires in san francisco and was ready for any change. he joined with a number of acquaintances on one of these ventures, acting as secretary of the company. they purchased the "paragon," a gloucester fishing-boat of 125 tons burden, and early in march, under the command of captain march, with forty-two men in the party, sailed north. they hugged the coast and kept a careful lookout for a harbor, but passed the present humboldt bay in rather calm weather and in the daytime without seeing it. the cause of what was then inexplicable is now quite plain. the entrance has the prevailing northwest slant. the view into the bay from the ocean is cut off by the overlapping south spit. a direct view reveals no entrance; you can not see in by looking back after having passed it. at sea the line of breakers seems continuous, the protruding point from the south connecting in surf line with that from the north. moreover, the bay at the entrance is very narrow. the wooded hills are so near the entrance that there seems no room for a bay. the "paragon" soon found heavy weather and was driven far out to sea. then for three days she was in front of a gale driving her in shore. she reached the coast nearly at the oregon line and dropped anchor in the lee of a small island near point st. george. in the night a gale sprang up, blowing fiercely in shore toward an apparently solid cliff. one after another the cables to her three anchors parted, and my father said it was with a feeling of relief that they heard the last one snap, the suspense giving way to what they believed to be the end of all. but there proved to be an unsuspected sandspit at the base of the cliff, and the "paragon" at high tide plowed her way to a berth she never left. her bones long marked the spot, and for many years the roadstead was known as paragon bay. no lives were lost and no property was saved. about twenty-five of the survivors returned to san francisco on the "cameo," but my father stayed by, and managed to reach humboldt bay soon after its discovery, settling in uniontown in may, 1850. the glory of the ocean discovery remained for the "laura virginia," a baltimore craft, commanded by lieutenant douglass ottinger, a revenue officer on leave of absence. she left soon after the "paragon," and kept close in shore. soon after leaving cape mendocino she reached the mouth of eel river and came to anchor. the next day three other vessels anchored and the "general morgan" sent a boat over the river bar. the "laura virginia" proceeded north and the captain soon saw the waters of a bay, but could see no entrance. he proceeded, anchoring first at trinidad and then at where crescent city was later located. there he found the "cameo" at anchor and the "paragon" on the beach. remaining in the roadstead two days, he started back, and tracing a stream of fresh-looking water discovered the mouth of the klamath. arriving at trinidad, he sent five men down by land to find out if there was an entrance to the bay he had seen. on their favorable report, second officer buhne was instructed to take a ship's boat and sound the entrance before the vessel should attempt it. on april 9, 1850, he crossed the bar, finding four and a half fathoms. buhne remained in the bay till the ship dropped down. on april 14th he went out and brought her in. after much discussion the bay and the city they proposed to locate were named humboldt, after the distinguished naturalist and traveler, for whom a member of the company had great admiration. let us now return to l.k. wood, whom we left at the mark west home in the sonoma valley, recovering from the serious injuries incident to the bear encounter on eel river. after about six weeks of recuperation, wood pushed on to san francisco and organized a party of thirty men to return to humboldt and establish a settlement. they were twenty days on the journey, arriving at the shore of the bay on april 19th, five days after the entrance of the "laura virginia." they were amazed to see the vessel at anchor off humboldt point. they quietly drew back into the woods, and skirting the east side of the bay came out at the bucksport site. four men remained to hold it. the others pushed on to the head of the bay, where they had enjoyed their christmas dinner. this they considered the best place for a town. for three days they were very busily engaged in posting notices, laying foundations for homes, and otherwise fortifying their claims. they named the new settlement uniontown. about six years afterward it was changed to arcata, the original indian name for the spot. the change was made in consideration of the confusion occasioned by there being a uniontown in el dorado county. and so the hidden harbor that had long inspired legend and tradition, and had been the source of great suffering and loss, was revealed. it was _not_ fed by the trinity or any other river. the mouth of the trinity was _not_ navigable; it did not boast a mouth--the klamath just swallowed it. the klamath's far-northern mouth was a poor affair, useless for commercial purposes. but a great empire had been opened and an enormously serviceable harbor had been added to california's assets. it aided mining and created immense lumber interests. strange as it may seem, humboldt bay was not discovered at this time. some years ago a searcher of the archives of far-off st. petersburg found unquestionable proof that the discovery was made in 1806, and not in 1849-50. early in the nineteenth century the russian-american company was all-powerful and especially active in the fur trade. it engaged an american captain, jonathan winship, who commanded an american crew on the ship "ocean." the outfit, accompanied by a hundred aleut indians, with fifty-two small boats, was sent from alaska down the california coast in pursuit of seals. they anchored at trinidad and spread out for the capture of sea-otter. eighteen miles south they sighted a bay and finally found the obscure entrance. they entered with a boat and then followed with the ship, which anchored nearly opposite the location of eureka. they found fifteen feet of water on the bar. from the large number of indians living on its shores, they called it the bay of the indians. the entrance they named resanof. winship made a detailed sketch of the bay and its surroundings, locating the indian villages and the small streams that enter the bay. it was sent to st. petersburg and entered on a russian map. the spaniards seem never to have known anything of it, and the americans evidently considered the incident of no importance. humboldt as a community developed slowly. for five years its real resources were neglected. [illustration: humboldt bay--from russian atlas the hidden harbor--thrice discovered winship, 1806. gregg, 1849. ottinger, 1850.] it was merely the shipping point from which the mines of the trinity and klamath rivers were supplied by mule trains. gradually agriculture was developed, and from 1855 lumber was king. it is now a great domain. the county is a little less than three times the size of the state of rhode island, and its wealth of resources and its rugged and alluring beauty are still gaining in recognition. its unique glory is the world-famous redwood belt. for its entire length, one hundred and six miles of coast line, and of an average depth of eight miles, extends the marvelous grove. originally it comprised 540,000 acres. for more than sixty years it has been mercilessly depleted, yet it is claimed that the supply will not be exhausted for two hundred years. there is nothing on the face of the earth to compare with this stand of superb timber. trees reach two hundred and fifty feet in height, thirty feet in diameter, and a weight of 1,250,000 pounds. through countless centuries these noble specimens have stood, majestic, serene, reserved for man's use and delight. in these later years fate has numbered their days, but let us firmly withstand their utter demolition. it is beyond conception that all these monuments to nature's power and beauty should be sacrificed. we must preserve accessible groves for the inspiration and joy of those who will take our places. the coast highway following down one of the forks of the eel river passes through the magnificent redwood belt and affords a wonderful view of these superb trees. efforts are now being made to preserve the trees bordering the highway, that one of the most attractive features of california's scenic beauty may be preserved for all time. california has nothing more impressive to offer than these majestic trees, and they are an asset she cannot afford to lose. chapter iii nine years north uniontown (now arcata) had enjoyed the early lead among the humboldt bay towns. the first consideration had been the facility in supplying the mines on the trinity and the klamath. all goods were transported by pack-trains, and the trails over the mountains were nearer the head of the bay. but soon lumber became the leading industry, and the mills were at eureka on deep water at the center of the bay, making that the natural shipping point. it grew rapidly, outstripping its rival, and also capturing the county-seat. arcata struggled valiantly, but it was useless. her geographical position was against her. in an election she shamelessly stuffed the ballot box, but eureka went to the legislature and won her point. arcata had the most beautiful location and its people were very ambitious. in fruitless effort to sustain its lead, the town had built a pier almost two miles in length to a slough navigable to ocean steamers. a single horse drew a flat car carrying passengers and freight. it was the nearest approach to a railroad in the state of california at the time of our arrival on that lovely morning in 1855. we disembarked from the ancient craft and were soon leisurely pursuing our way toward the enterprising town at the other end of the track. it seemed that we were met by the entire population; for the arrival of the steamer with mail and passengers was the exciting event of the month. the station was near the southwest corner of the plaza, which we crossed diagonally to the post-office, housed in the building that had been my father's store until he sold out the year before, when he was elected to the assembly. murdock's hall was in the second story, and a little way north stood a zinc house that was to be our home. it had been shipped first to san francisco and then to humboldt. its plan and architecture were the acme of simplicity. there were three rooms tandem, each with a door in the exact middle, so that if all the doors were open a bullet would be unimpeded in passing through. to add to the social atmosphere, a front porch, open at both ends, extended across the whole front. a horseman could, and in fact often did, ride across it. my brother and i occupied a chamber over the post-office, and he became adept in going to sleep on the parlor sofa every night and later going to bed in the store without waking, dodging all obstructing objects and undressing while sound asleep. we were quite comfortable in this joke of a house. but we had no pump; all the water we used i brought from a spring in the edge of the woods, the one found by the gregg party on the night of christmas, 1849. the first time i visited it and dipped my bucket in the sunken barrel that protected it i had a shock. before leaving san francisco, being a sentimental youth and knowing little of what humboldt offered, i bought two pots of fragrant flowers--heliotrope and a musk-plant--bringing them on the steamer with no little difficulty. as i dipped into the barrel i noticed that it was surrounded by a solid mass of musk-plants growing wild. the misapprehension was at least no greater than that which prompted some full-grown man to ship a zinc house to the one spot in the world where the most readily splitting lumber was plentiful. one of the sights shown to the newcomer was a two-story house built before the era of the sawmill. it was built of split lumber from a single redwood tree--and enough remained to fence the lot! within a stone's throw from the musk-plant spring was a standing redwood, with its heart burned out, in which thirteen men had slept one night, just to boast of it. later, in my time, a shingle-maker had occupied the tree all one winter, both as a residence and as a shop where he made shingles for the trade. we had a very pleasant home and were comfortable and happy. we had a horse, cows, rabbits, and pigeons. our garden furnished berries and vegetables in plenty. the indians sold fish, and i provided at first rabbits and then ducks and geese. one delicious addition to our table was novel to us. as a part of the redwood's undergrowth was a tall bush that in its season yielded a luscious and enormous berry called the salmon-berry. it was much like a raspberry, generally salmon in color, very juicy and delicate, approximating an inch and a half in diameter. armed with a long pole, a short section of a butt limb forming a sort of shepherd's crook, i would pull down the heavily laden branches and after a few moments in the edge of the woods would be provided with a dessert fit for any queen, and so appropriate for my mother. california in those early days seemed wholly dependent on the foreign markets. flour came from chile, "haxall" being the common brand; cheese from holland and switzerland; cordials, sardines, and prunes from france; ale and porter from england; olives from spain; whiskey from scotland. boston supplied us with crackers, philadelphia sent us boots, and new orleans furnished us with sugar and molasses. the stores that supplied the mines carried almost everything--provisions, clothing, dry goods, and certainly wet goods. at every store there was found an open barrel of whiskey, with a convenient glass sampler that would yield through the bunghole a fair-sized drink to test the quality. one day i went into a store where a clever chinaman was employed. he had printed numerous placards announcing the stock. i noticed a fresh one that seemed incongruous. it read, "codfish and cologne water." i said, "what's the idea?" he smilingly replied, "you see its place? i hang it over the whiskey-barrel. some time man come to steal a drink. i no see him; he read sign, he laugh, i hear him, i see him." there was no school in the town when we came. it troubled my mother that my brother and sister must be without lessons. several other small children were deprived of opportunity. in the emergency we cleaned out a room in the store, formerly occupied by a county officer, and i organized a very primary school. i was almost fifteen, but the children were good and manageable. i did not have very many, and fortunately i was not called upon to teach very long. there came to town a clever man, robert desty. he wanted to teach. there was no school building, but he built one all by his own hands. he suggested that i give up my school and become a pupil of his. i was very glad to do it. he was a good and ingenious teacher. i enjoyed his lessons about six months, and then felt i must help my father. my stopping was the only graduation in my experience. my father was an inveterate trader, and the year after our coming he joined with another venturer in buying the standing crop of wheat in hoopa valley, on the trinity river. i went up to help in the harvesting, being charged with the weighing of the sacked grain. it was a fine experience for an innocent yankee boy. we lived out of doors, following the threshers from farm to farm, eating under an oak tree and sleeping on the fragrant straw-piles. i was also the butt of about the wildest lot of jokers ever assembled. they were good-natured, but it was their concerted effort to see how much i could stand in the way of highly flavored stories at mealtime. it was fun for them, besides they felt it would be a service to knock out some of the boston "sissiness." i do not doubt it was. they never quite drove me away from the table. in the meantime i had a great good time. it was a very beautiful spot and all was new and strange. there were many indians, and they were interesting. they lived in rancherias of puncheons along the river. each group of dwellings had a musical name. one village was called matiltin, another savanalta. the children swam like so many ducks, and each village had its sweathouse from which every adult, to keep in health and condition, would plunge into the swiftly flowing river. they lived on salmon, fresh or dried, and on grass-seed cakes cooked on heated stones. they were handsome specimens physically and were good workers. the river was not bridged, but it was not deep and canoes were plenty. if none were seen on the side which you chanced to find yourself, you had only to call, "wanus, matil!" (come, boat!) and one would come. if in a hurry, "holish!" would expedite the service. the indian language was fascinating and musical. "iaquay" was the word of friendly greeting. "aliquor" was indian, "waugee" was white man, "chick" was the general word for money. when "waugee-chick" was mentioned, it meant gold or silver; if "aliquor-chick," reference was made to the spiral quill-like shells which served as their currency, their value increasing rapidly by the length. [footnote: in the hawaiian islands short shells of this variety are strung for beads, but have little value.] there are frequent combined words. "hutla" is night, "wha" is the sun; "hutla-wha" is the moon--the night-sun. if an indian wishes to ask where you are going, he will say, "ta hunt tow ingya?" "teena scoia" is very good. "skeena" is too small. "semastolon" is a young woman; if she is considered beautiful, "clane nuquum" describes her. the indians were very friendly and hospitable. if i wanted an account-book that was on the other side of the river, they would not bother for a canoe, but swim over with it, using-one hand and holding the book high in the air. i found they had settled habits and usages that seemed peculiar to them. if one of their number died, they did not like it referred to; they wished for no condolence. "indian die, indian no talk," was their expression. it was a wonder to me that in a valley connected with civilization by only a trail there should be found mccormick's reapers and pitt's threshers. parts too large for a mule's pack had been cut in two and afterwards reunited. by some dint of ingenuity even a millstone had been hauled over the roadless mountains. the wheat we harvested was ground at the hoopa mill and the flour was shipped to the trinity and klamath mines. all the week we harvested vigorously, and on sunday we devoted most of the day to visiting the watermelon patches and sampling the product. of course, we spent a portion of the day in washing our few clothes, usually swimming and splashing in the river until they were dry. the valley was long and narrow, with mountains on both sides so high that the day was materially shortened in the morning and at night. the tardy sun was ardent when he came, but disturbed us little. the nights were blissful--beds so soft and sweet and a canopy so beautiful! in the morning we awoke to the tender call of cooing doves, and very soon lined up for breakfast in the perfectly ventilated out-of-doors. happy days they were! wise and genial captain snyder, sonnichsen, the patient cook, jim brock, happy tormentor--how clearly they revisit the glimpses of the moon! returning to uniontown, i resumed my placid, busy life, helping in the garden, around the house, and in the post-office. my father was wise in his treatment. boylike i would say, "father, what shall i do?" he would answer, "look around and find out. i'll not always be here to tell you." thrown on my own resources, i had no trouble in finding enough to do, and i was sufficiently normal and indolent to be in no danger of finding too much. the post-office is a harborer of secrets and romance. the postmaster and his assistants alone know "who's who." a character of a packer, tall, straight, and bearded, always called joe the marine, would steal in and call for comely letters addressed to james ashhurst, esq. robert desty was found to be mons. robert d'esti mauville. a blacksmith whose letters were commonly addressed to c.e. bigelow was found entitled to one inscribed c.e.d.l.b. bigelow. asked what his full name was, he replied, "charles edward decatur la fitte butterfield bigelow." and, mind you, he was a _blacksmith_! his christening entitled him to it all, but he felt that all he could afford was what he commonly used. phonetics have a distinct value. uncertain of spelling, one can fall back on remembered sound. i found a letter addressed to "sanerzay." i had no difficulty in determining that san jose was intended. hard labor was suggested when someone wrote "youchiyer." the letter found its resting-place in ukiah. among my miscellaneous occupations was the pasturage of mules about to start on the return trip to the mines. we had a farm and logging-claim on the outskirts of town which afforded a good farewell bite of grass, and at night i would turn loose twenty to forty mules and their beloved bell-mare to feed and fight mosquitoes. early the next morning i would saddle my charger and go and bring them to the packing corral. never shall i forget a surprise given me one morning. i had a tall, awkward mare, and was loping over the field looking for my charges. an innocent little rabbit scuttled across kate's path and she stopped in her tracks as her feet landed. i was gazing for the mule train and i did not stop. i sailed over her head, still grasping the bridle reins, which, attached to the bit, i also had to overleap, so that the next moment i found myself standing erect with the reins between my legs, holding on to a horse behind me still standing in her arrested tracks. remounting, i soon found the frisky mules and started them toward misery. driven into the corral where their freight had been divided into packs of from one hundred to one hundred and fifty pounds, they were one by one saddled, cinched, and packed. a small mule would seem to be unequal to carrying two side-packs, each consisting of three fifty-pound sacks of flour, and perhaps a case of boots for a top-pack. but protests of groans and grunts would be unavailing. two swarthy mexicans, by dint of cleverly thrown ropes and the "diamond hitch," would soon have in place all that the traffic would bear, and the small indian boy on the mother of the train, bearing a tinkling bell, would lead them on their way to salmon river or to orleans bar. another frequent duty was the preparation of the hall for some public function. it might be a dance, a political meeting, or some theatrical performance. different treatment would be required, but all would include cleaning and lighting. at a dance it was floor-scrubbing, filling the camphene lamps, and making up beds for the babies to be later deposited by their dancing mothers. very likely i would tend door and later join in the dance, which commonly continued until morning. politics interested me. in the frã©mont campaign of 1856 my father was one of four republicans in the county, and was by no means popular. he lived to see humboldt county record a six hundred majority for the republican ticket. some of our local legislative candidates surprised and inspired me by their eloquence and unexpected knowledge and ability. it was good to find that men read and thought, even when they lived in the woods and had little encouragement. occasionally we had quite good theatrical performances. very early i recall a thespian named thoman, who was supported by a julia pelby. they vastly pleased an uncritical audience. i was doorkeeper, notwithstanding that thoman doubted if i was "hefty" enough. "little lotta" crabtree was charming. her mother traveled with her. between performances she played with her dolls. she danced gracefully and sang fascinatingly such songs as "i'm the covey what sings." another prime favorite was joe murphy, irish comedian and violinist, pleasing in both roles. i remember a singing comedian who bewailed his sad estate: "for now i have nothing but rags to my back, my boots scarce cover my toes, while my pants are patched with an old flour-sack, to jibe with the rest of my clo'es." the singing-school was pleasure-yielding, its greatest joy being incidental. when i could cut ahead of a chum taking a girl home and shamelessly trip him up with a stretched rope and get back to the drugstore and be curled up in the woodbox when he reached his final destination, i am afraid i took unholy joy. not long after coming we started a public library. mother and i covered all the books, this being considered an economical necessity. somewhat later arcata formed a debating society that was really a helpful influence. it engaged quite a wide range of membership, and we discussed almost everything. some of our members were fluent of speech from long participation in methodist experience meetings. others were self-trained even to pronunciation. one man of good mind, always said "here_dit_ary." he had read french history and often referred to the _gridironists_ of france. i have an idea he was the original of the man whom bret harte made refer to the greek hero as "old ashheels." our meetings were open, and among the visitors i recall a clerk of a commander in the indian war. he afterwards became lieutenant-governor of the state, and later a senator from nevada--john p. jones. an especial pleasure were the thoroughness and zest with which we celebrated the fourth of july. the grown-ups did well in the daylight hours, when the procession, the oration, and the reading of the declaration were in order; but with the shades of night the fireworks would have been inadequate but for the activity of the boys. the town was built around a handsome plaza, probably copied from sonoma as an incident of the wood sojourn. on the highest point in the center a fine flagstaff one hundred and twenty feet high was proudly crowned by a liberty-cap. this elevated plateau was the field of our display. on a spot not too near the flagstaff we planned for a spectacular center of flame. during the day we gathered material for an enormous bonfire. huge casks formed the base and inflammable material of all kinds reached high in the air. at dark we fired the pile. but the chief interest was centered in hundreds of balls of twine, soaked in camphene, which we lighted and threw rapidly from hand to hand all over the plaza. we could not hold on to them long, but we didn't need to. they came flying from every direction and were caught from the ground and sent back before they had a chance to burn. the noise and excitement can be easily imagined. blackened and weary boys kept it up till the bonfire was out and the balls had grown too small to pick up. nothing interfered with our celebrations. when the indians were "bad" we forsook the redwoods and built our speaker's stand and lunch tables and benches out in the open beyond firing distance. our garden was quite creditable. vegetables were plentiful and my flower-beds, though formal, were pleasing. stock-raising was very interesting. one year i had the satisfaction of breaking three heifers and raising their calves. my brother showed more enterprise, for he induced a plump young mother of the herd to allow him to ride her when he drove the rest to pasture. upon our arrival in uniontown we found the only church was the methodist. we at once attended, and i joined the sunday-school. my teacher was a periodically reformed boatman. when he fell from grace he was taken in hand by the sons of temperance, which i had also joined. "morning star division, no. 106," was never short of material to work on. my first editorial experience was on its spicy little written journal. i went through the chairs and became "worthy patriarch" while still a boy. the church was mostly served by first-termers, not especially inspiring. i recall one good man who seemed to have no other qualification for the office. he frankly admitted that he had worked in a mill and in a lumber-yard, and said he liked preaching "better than anything he'd ever been at." he was very sincere and honest. he had a uniform lead in prayer: "o lord, we thank thee that it is as well with us as what it is." the sentiment was admirable, but somehow the manner grated. when the presiding elder came around we had a relief. he was wide-awake and witty. one night he read the passage of scripture where they all began with one accord to make excuses. one said: "i have married a wife and cannot come." the elder, looking up, said, "why didn't the pesky fool bring her with him?" in the process of time the presbyterians started a church, and i went there; swept out, trimmed the lamps, and sang in the choir. the preacher was an educated man, and out of the pulpit was kind and reasonable; but he persisted that "good deeds were but as filthy rags." i didn't believe it and i didn't like it. the staid pastor had but little recreation, and i am afraid i was always glad that ulrica schumacher, the frisky sister of the gunsmith, almost always beat him at chess. he was succeeded by a man i loved, and i wonder i did not join his church. we were good friends and used to go out trout-fishing together. he was a delightful man, but when he was in the pulpit he shrank and shriveled. the danger of presbyterianism passed when he expressed his doubt whether it would be best for my mother to partake of communion, as she had all her life in the unitarian church. she was willing, but waited his approval. my mother was the most saintly of women, absolutely unselfish and self-sacrificing, and it shocked me that any belief or lack of belief should exclude her from a christian communion. when my father, in one of his numerous trades, bought out the only tinshop and put me in charge he changed my life and endangered my disposition. the tinsmith left the county and i was left with the tools and the material, the only tinsmith in humboldt county. how i struggled and bungled! i could make stovepipe by the mile, but it was a long time before i could double-seam a copper bottom onto a tin wash-boiler. i lived to construct quite a decent traveling oilcan for a eureka sawmill, but such triumphs come through mental anguish and burned fingers. no doubt the experience extended my desultory education. the taking over of the tinshop was doubly disappointing, since i really wanted to go into the office of the _northern californian_ and become a printer and journalist. that job i turned over to bret harte, who was clever and cultivated, but had not yet "caught on." leon chevret, the french hotelkeeper, said of him to a lawyer of his acquaintance, "bret harte, he have the napoleonic nose, the nose of genius; also, like many of you professional men, his debts trouble him very little." there were many interesting characters among the residents of the town and county. at times there came to play the violin at our dances one seth kinman, a buckskin-clad hunter. he became nationally famous when he fashioned and presented elkhorn chairs to buchanan and several succeeding presidents. they were ingenious and beautiful, and he himself was most picturesque. one of our originals was a shiftless and merry iowan to whose name was added by courtesy the prefix "dr." he had a small farm in the outskirts. gates hung from a single hinge and nothing was kept in repair. he preferred to use his time in persuading nature to joke. a single cucumber grown into a glass bottle till it could not get out was worth more than a salable crop, and a single cock whose comb had grown around an inserted pullet breastbone, until he seemed the precursor of a new breed of horned roosters, was better than much poultry. he reached his highest fame in the cure of his afflicted wife. she languished in bed and he diagnosed her illness as resulting from the fact that she was "hidebound." his house he had never had time to complete. the rafters were unobstructed by ceiling, so she was favorably situated for treatment. he fixed a lasso under her arms, threw the end around a rafter, and proceeded to loosen her refractory hide. one of our leading merchants was a deacon in the methodist church and so enjoyed the patronage of his brother parishioners. one of them came in one day and asked the paying price of eggs. the deacon told him "sixty cents a dozen." "what are sail-needles?" "five cents apiece." the brother produced an egg and proposed a swap. it was smilingly accepted and the egg added to the pile of stock. the brother lingered and finally drawled, "deacon, it's customary, isn't it, to _treat_ a buyer?" "it is; what will you take?" laughingly replied the deacon. "sherry is nice." the deacon poured out the sherry and handed it to his customer, who hesitated and timidly remarked that sherry was improved by a raw egg. the amused deacon turned around and took from the egg-pile the identical one he had received. as the brother broke it into his glass he noticed it had an extra yolk. after enjoying his drink, he handed back the empty glass and said: "deacon, that egg had a double yolk; don't you think you ought to give me another sail-needle?" when thomas starr king was electrifying the state in support of the sanitary commission (the red cross of the civil war), arcata caught the fever and in november, 1862, held a great meeting at the presbyterian church. our leading ministers and lawyers appealed with power and surprising subscriptions followed. mr. coddington, our wealthiest citizen, started the list with three hundred dollars and ten dollars a month during the war. others followed, giving according to their ability. one man gave for himself, as well as for his wife and all his children. on taking his seat and speaking to his wife, he jumped up and added one dollar for the new baby that he had forgotten. when money gave out other belongings were sacrificed. one man gave twenty-five bushels of wheat, another ten cords of wood, another his saddle, another a gun. a notary gave twenty dollars in fees. a cattleman brought down the house when he said, "i have no money, but i will give a cow, and a calf a month as long as the war lasts." the following day it was my joy as secretary to auction off the merchandise. when all was forwarded to san francisco we were told we had won first honors, averaging over twenty-five dollars for each voter in the town. one interesting circumstance was the consignment to me of the first shipments of two novelties that afterward became very common. the discovery of coal-oil and the utilization of kerosene for lighting date back to about 1859. the first coal-oil lamps that came to humboldt were sent to me for display and introduction. likewise, about 1860, a grover & baker sewing-machine was sent up for me to exhibit. by way of showing its capabilities, i sewed the necessary number of yard-widths of the length of murdock's hall to make a new ceiling, of which it chanced to stand in need. humboldt county was an isolated community. sea steamers were both infrequent and uncertain, with ten days or two weeks and more between arrivals. there were no roads to the interior, but there were trails, and they were often threatened by treacherous indians. the indians living near us on mad river were peaceful, but the mountain indians were dangerous, and we never knew when we were really safe. in arcata we had one stone building, a store, and sometimes the frightened would resort to it at night. in times of peace, settlers lived on mad river, on redwood creek, and on the bald hills, where they herded their cattle. one by one they were killed or driven in until there was not a white person living between the bay and trinity river. mail carriers were shot down, and the young men of arcata were often called upon at night to nurse the wounded. we also organized a military company, and a night duty was drilling our men on the plaza or up past the gruesome graveyard. my command was never called out for service, but i had some fortunate escapes from being waylaid. i walked around the bay one morning; a few hours later a man was ambushed on the road. on one occasion i narrowly escaped participation in warfare. in august, 1862, there had been outrages by daring indian bands, killing unprotected men close to town. once a few of us followed the tracks of a party and traced the marauders across mad river and toward a small prairie known to our leader, ousley the saddler. as we passed along a small road he caught the sign. a whiff of a shred of cotton cloth caught on a bush denoted a smoky native. a crushed fern, still moist, told him they had lately passed. at his direction we took to the woods and crawled quietly toward the near-by prairie. our orders were to wait the signal. if the band we expected to find was not too large, we should be given the word to attack. if there were too many for us, we should back out and go to town for help. we soon heard them plainly as they made camp. we found about three times our number, and we retired very quietly and made for the nearest farmhouse that had a team. in town many were anxious to volunteer. my mother did not want me to go, and i must confess i was in full accord with her point of view. i therefore served as commissary, collecting and preparing quantities of bread, bacon, and cheese for a breakfast and distributing a packed bag to each soldier. the attack at daylight resulted in one death to our command and a number to the indians. it was followed up, and a few days later the band was almost annihilated. the plunder recovered proved them guilty of many late attacks. this was toward the end of the indian war that had for so many years been disastrous to the community, and which in many of its aspects was deeply pathetic. originally the indian population was large. the coast indians were spoken of as diggers, and inferior in character. they were generally peaceful and friendly while the mountain dwellers were inclined to hostility. as a whole they did not represent a very high type of humanity, and all seemed to take to the vices rather than to the virtues of the white race, which was by no means represented at its best. a few unprincipled whites were always ready to stir up trouble and the indians were treacherous and when antagonized they killed the innocent rather than the guilty, for they were cowards and took the fewest possible chances. i have known an indian hater who seemed to think the only good indian was a dead one go unmolested through an entire campaign, while a friendly old man was shot from behind while milking his cow. the town was near the edge of the woods and no one was secure. the fine character whom we greatly respected,--the debater of original pronunciation,--who had never wronged a human being of any race, was shot down from the woods quite near the plaza. the regular army was useless in protection or punishment. their regulations and methods did not fit. they made fine plans, but they failed to work. they would locate the enemy and detail detachments to move from various points to surround and capture the foe, but when they got there the bushes were bare. finally battalions of mountaineers were organized among men who knew indian ways and were their equals in cunning. they soon satisfied the hostiles that they would be better off on the reservations that were provided and the war was at an end. it was to the credit of humboldt county that in the final settlement of the contest the rights of the indians were quite fairly considered and the reservations set aside for their residence were of valuable land well situated and fitted for the purpose. hoopa valley, on the trinity, was purchased from its settlers and constituted a reservation protected by fort gaston and a garrison. it was my pleasure to revisit the scene of my boyhood experience and assist in the transfer largely conducted through the leadership of austin wiley, the editor and owner of the _humboldt times_. he was subsequently made superintendent of indian affairs for the state of california, and as his clerk i helped in the administration. when i visited the smith river reservation, to which the bay indians had been sent, i was hailed with joy as "major's pappoose," whom they remembered of old. (my father was always called major.) among the warm friendships formed at this time two stand out. two boys of about my age were to achieve brilliant careers. very early i became intimate with alexander brizard, a clerk in the store of f. roskill, a russian. he was my companion in the adventure of following the indian marauders, and my associate in the church choir and the debating club. in 1863 he joined a fellow clerk in establishing a modest business concern, the firm being known as a. brizard & co.; the unnamed partner was james alexander campbell van rossum, a hollander. they prospered amazingly. van rossum died early, brizard became the leading merchant of northern california, and his sons still continue the chain of stores that grew from the small beginning. he was a strong, fine character. the other boy, very near to me, was john j. dehaven, who was first a printer, then a lawyer, then a state senator, then a congressman, and finally a u.s. district judge. he was very able and distinguished himself in every place in life to which he advanced. in 1861, when my father had become superintendent of a nevada county gold mine, he left me to run the post-office, cut the timothy hay, and manage a logging-camp. it was wartime and i had a longing to enlist. one day i received a letter from him, and as i tore it open a startling sentence caught my eye, "your commission will come by the next steamer." i caught my breath and south particulars. it informed me that senator sargent, his close friend, had secured for me the appointment of register of the land office at humboldt. [illustration: presidential commission as registrar of the land office at humboldt, california] there had been a vacancy for some time, resulting from reduction in the pay from $3000 in gold to $500 in greenbacks, together with commissions, which were few. my father thought it would be good experience for me and advised my acceptance. and so at twenty-two i became a federal officeholder. the commission from president lincoln is the most treasured feature of the incident. i learned some valuable lessons. the honor was great and the position was responsible, but i soon felt constrained to resign, to accept a place as quartermaster's clerk, where i had more pay with more work. i was stationed at fort humboldt, where grant spent a few uncomfortable months in 1854. it was an experience very different from any i had ever had. army accounting is wholly unlike civilian, books being dispensed with and accounts of all kinds being made in quadruplicate. i shed quantities of red ink and made my monthly papers appear well. i had no responsibility and obeyed orders, but i could not be wholly comfortable when i covered in all the grain that every mule was entitled to when i had judicial knowledge that he had been turned out to grass. nor could i believe that the full amount of cordwood allowed officers was consumed when fires were infrequent. i was only sure that it was paid for. aside from these ethical informalities the life was socially agreeable, and there is glamour in the military. my period of service was not very long. my father had settled in san francisco and the family had joined him. i was lonely, and when my friend, the new superintendent of indian affairs, offered me employment i forsook fort humboldt and took up my residence in the city by the golden gate. chapter iv the real bret harte before taking up the events related to my residence in san francisco i wish to give my testimony concerning bret harte, perhaps the most interesting character associated with my sojourn in humboldt. it was before he was known to fame that i knew him; but i am able to correct some errors that have been made and i believe can contribute to a more just estimate of him as a literary artist and a man. he has been misjudged as to character. he was a remarkable personality, who interpreted an era of unusual interest, vital and picturesque, with a result unparalleled in literary annals. when he died in england in 1902 the english papers paid him very high tribute. the _london spectator_ said of him: "no writer of the present day has struck so powerful and original a note as he has sounded." this is a very unusual acknowledgment from a source not given to the superlative, and fills us with wonder as to what manner of man and what sort of training had led to it. causes are not easily determined, but they exist and function. accidents rarely if ever happen. heredity and experience very largely account for results. what is their testimony in this particular case? francis bret harte was born in albany, new york, february 25, 1836. his father was a highly educated instructor in greek, of english-jewish descent. his mother was an ostrander, a cultivated and fine character of dutch descent. his grandmother on his father's side was catherine brett. he had an elder brother and two younger sisters. the boys were voracious readers and began shakespeare when six, adding dickens at seven. frank developed an early sense of humor, burlesquing the baldness of his primer and mimicking the recitations of some of his fellow pupils when he entered school. he was studious and very soon began to write. at eleven he sent a poem to a weekly paper and was a little proud when he showed it to the family in print. when they heartlessly pointed out its flaws he was less hilarious. his father died when he was very young and he owed his training to his mother. he left school at thirteen and was first a lawyer's clerk and later found work in a counting-room. he was self-supporting at sixteen. in 1853 his mother married colonel andrew williams, an early mayor of oakland, and removed to california. the following year bret and his younger sister, margaret, followed her, arriving in oakland in march, 1854. he found the new home pleasant. the relations with his cultivated stepfather were congenial and cordial, but he suffered the fate of most untrained boys. he was fairly well educated, but he had no trade or profession. he was bright and quick, but remunerative employment was not readily found, and he did not relish a clerkship. for a time he was given a place in a drugstore. some of his early experiences are embalmed in "how reuben allen saw life" and in "bohemian days." in the latter he says: "i had been there a week,--an idle week, spent in listless outlook for employment, a full week, in my eager absorption of the strange life around me and a photographic sensitiveness to certain scenes and incidents of those days, which stand out in my memory today as freshly as on the day they impressed me." it was a satisfaction that he found some congenial work. he wrote for _putnam's_ and the _knickerbocker_. in 1856, when he was twenty, he went to alamo, in the san ramon valley, as tutor in an interesting family. he found the experience agreeable and valuable. a letter to his sister margaret, written soon after his arrival, shows a delightful relation between them and warm affection on his part. it tells in a felicitous manner of the place, the people, and his experiences. he had been to a camp-meeting and was struck with the quaint, old-fashioned garb of the girls, seeming to make the ugly ones uglier and the pretty ones prettier. it was raining when he wrote and he felt depressed, but he sent his love in the form of a charming bit of verse wherein a tear was borne with the flowing water to testify to his tender regard for his "peerless sister." this letter, too personal for publication, his sister lately read to me, and it was a revelation of the matchless style so early acquired. in form it seemed perfect--not a superfluous or an ill-chosen word. every sentence showed rhythm and balance, flowing easily and pleasantly from beginning to end, leaving an impression of beauty and harmony, and testifying to a kindly, gentle nature, with an admiring regard for his seventeen-year-old sister. from alamo he seems to have gone directly to tuolumne county, and it must have been late in 1856. his delightful sketch "how i went to the mines" is surely autobiographical. he says: "i had been two years in california before i ever thought of going to the mines, and my initiation into the vocation of gold-digging was partly compulsory." he refers to "the little pioneer settlement school, of which i was the somewhat youthful, and, i fear, not over-competent master." what he did after the school-teaching episode he does not record. he was a stage messenger at one time. how long he remained in and around the mines is not definitely known, but it seems clear that in less than a year of experience and observation he absorbed the life and local color so thoroughly that he was able to use it with almost undiminished freshness for forty years. it was early in 1857 that bret harte came to humboldt county to visit his sister margaret, and for a brief time and to a limited extent our lives touched. he was twenty-one and i was sixteen, so there was little intimacy, but he interested and attracted me as a new type of manhood. he bore the marks of good breeding, education, and refinement. he was quiet of manner, kindly but not demonstrative, with a certain reserve and aloofness. he was of medium height, rather slight of figure, with strongly marked features and an aquiline nose. he seemed clever rather than forcible, and presented a pathetic figure as of one who had gained no foothold on success. he had a very pleasant voice and a modest manner, and never talked of himself. he was always the gentleman, exemplary as to habits, courteous and good-natured, but a trifle aristocratic in bearing. he was dressed in good taste, but was evidently in need of income. he was willing to do anything, but with little ability to help himself. he was simply untrained for doing anything that needed doing in that community. he found occasional work in the drugstore, and for a time he had a small private school. his surviving pupils speak warmly of his sympathy and kindness. he had little mechanical ability. i recall seeing him try to build a fence one morning. he bravely dug postholes, but they were pretty poor, and the completed fence was not so very straight. he was genial and uncomplaining, and he made a few good friends. he was an agreeable guest, and at our house was fond of a game of whist. he was often facetious, with a neatness that was characteristic. one day, on a stroll, we passed a very primitive new house that was wholly destitute of all ornaments or trimming, even without eaves. it seemed modeled after a packing-box. "that," he remarked, "must be of the _iowan_ order of architecture." he was given to teasing, and could be a little malicious. a proud and ambitious schoolteacher had married a well-off but decidedly cockney englishman, whose aspirates could be relied upon to do the expected. soon after the wedding, harte called and cleverly steered the conversation on to music and songs, finally expressing great fondness for "kathleen mavourneen," but professing to have forgotten the words. the bridegroom swallowed the bait with avidity. "why," said he, "they begin with 'the 'orn of the 'unter is 'eard on the 'ill.'" f.b. stroked his dundrearies while his dark eyes twinkled. the bride's eyes flashed ominously, but there seemed to be nothing she felt like saying. in october, 1857, he removed to the liscom ranch in the suburbs at the head of the bay and became the tutor of two boys, fourteen and thirteen years of age. he had a forenoon session of school and in the afternoon enjoyed hunting on the adjacent marshes. for his convenience in keeping run of the lessons given, he kept a brief diary, and it has lately been found. it is of interest both in the little he records and from the significant omissions. it reveals a very simple life of a clever, kindly, clean young man who did his work, enjoyed his outdoor recreation, read a few good books, and generally "retired at 9 1/2 p.m." he records sending letters to various publications. on a certain day he wrote the first lines of "dolores." a few days later he finished it, and mailed it to the _knickerbocker_. he wrote and rewrote a story, "what happened at mendocino." what happened to the story does not appear. he went to church generally, and some of the sermons were good and others "vapid and trite." once in a while he goes to a dance, but not to his great satisfaction. he didn't dance particularly well. he tells of a christmas dinner that he helped his sister to prepare. something made him dissatisfied with himself and he bewails his melancholy and gloomy forebodings that unfit him for rational enjoyment and cause him to be a spectacle for "gods and men." he adds: "thermometer of my spirit on christmas day, 1857, 9 a.m., 40â°; temperature, 12 a.m., 60â°; 3 p.m., 80â°; 6 p.m., 20â° and falling rapidly; 9 p.m., at zero; 1 a.m., 20â° below." his entries were brief and practical. he did not write to express his feelings. at the close of 1857 he indulged in a brief retrospect, and an emphatic statement of his determination for the future. after referring to the fact that he was a tutor at a salary of twenty-five dollars a month and board, and that a year before he was unemployed, at the close he writes: "in these three hundred and sixty-five days i have again put forth a feeble essay toward fame and perhaps fortune. i have tried literature, albeit in a humble way. i have written some passable prose and it has been successfully published. the conviction is forced on me by observation, and not by vain enthusiasm, that i am fit for nothing else. perhaps i may succeed; if not, i can at least make the trial. therefore i consecrate this year, or as much as god may grant for my services, to honest, heartfelt, sincere labor and devotion to this occupation. god help me! may i succeed!" harte profited by his experience in tutoring my two boy friends, gaining local color quite unlike that of the sierra foothills. humboldt is also on the grand scale and its physical characteristics and its type of manhood were fresh and inspiring. his familiarity with the marsh and the sloughs is shown in "the man on the beach" and the "dedlow marsh stories," and this affords fine opportunity for judging of the part played by knowledge and by imagination in his literary work. his descriptions are photographic in their accuracy. the flight of a flock of sandpipers, the flowing tides, the white line of the bar at the mouth of the bay--all are exact. but the locations and relations irrelevant to the story are wholly ignored. the characters and happenings are purely imaginary. he is the artist using his experiences and his fancy as his colors, and the minimum of experience and small observation suffice. his perception of character is marvelous. he pictures the colonel, his daughters, the spruce lieutenant, and the irish deserter with such familiarity that the reader would think that he had spent most of his life in a garrison, and his ability to portray vividly life in the mines, where his actual experience was so very slight, is far better understood. many of the occurrences of those far-away days have faded from my mind, but one of them, of considerable significance to two lives, is quite clear. uniontown had been the county-seat, and there the _humboldt times_ was published; but eureka, across the bay, had outgrown her older sister and captured both the county-seat and the only paper in the county. in frantic effort to sustain her failing prestige uniontown projected a rival paper and the _northern californian_ was spoken into being. my father was a half owner, and i coveted the humble position of printer's devil. one journeyman could set the type, and on wednesday and saturday, respectively, run off on a hand-press the outside and the inside of the paper, but a boy or a low-priced man was needed to roll the forms and likewise to distribute the type. i looked upon it as the first rung on the ladder of journalism, and i was about to put my foot thereon when the pathetic figure of bret harte presented itself applying for the job, causing me to put my foot on my hopes instead. he seemed to want it and need it so much more than i did that i turned my hand to other pursuits, while he mounted the ladder with cheerful alacrity and skipped up several rungs, very promptly learning to set type and becoming a very acceptable assistant editor. in a community where popular heroes are apt to be loud and aggressive, the quiet man who thinks more than he talks is adjudged effeminate. harte was always modest, and boasting was foreign to his nature; so he was thought devoid of spirit and strength. but occasion brought out the unsuspected. there had been a long and trying indian war in and around humboldt. the feeling against the red men was very bitter. it culminated in a wanton and cowardly attack on a tribe of peaceful indians encamped on an island opposite eureka, and men, women, and children were ruthlessly killed. harte was temporarily in charge of the paper and he denounced the outrage in unmeasured terms. the better part of the community sustained him, but a violent minority resented his strictures and he was seriously threatened and in no little danger. happily he escaped, but the incident resulted in his return to san francisco. the massacre occurred on february 5, 1860, which fixes the approximate time of harte's becoming identified with san francisco. his experience was of great advantage to him in that he had learned to do something for which there was a demand. he could not earn much as a compositor, but his wants were simple and he could earn something. he soon secured a place on the _golden era_, and it became the doorway to his career. he was soon transferred to the editorial department and contributed freely. for four years he continued on the _golden era_. these were years of growth and increasing accomplishment. he did good work and made good friends. among those whose interest he awakened were mrs. jessie benton frã©mont and thomas starr king. both befriended and encouraged him. in the critical days when california hung in the balance between the north and the south, and starr king, by his eloquence, fervor, and magnetism, seemed to turn the scale, bret harte did his part in support of the friend he loved. lincoln had called for a hundred thousand volunteers, and at a mass meeting harte contributed a noble poem, "the reveille," which thrillingly read by starr king brought the mighty audience to its feet with cheers for the union. he wrote many virile patriotic poems at this period. in march, 1864, starr king, of the glowing heart and golden tongue, preacher, patriot, and hero, fell at his post, and san francisco mourned him and honored him as seldom falls to the lot of man. at his funeral the federal authorities ordered the firing of a salute from the forts in the harbor, an honor, so far as i know, never before accorded a private citizen. bret harte wrote a poem of rare beauty in expression of his profound grief and his heartfelt appreciation: relieving guard. came the relief. "what, sentry, ho! how passed the night through thy long waking?" "cold, cheerless, dark--as may befit the hour before the dawn is breaking." "no sight? no sound?" "no; nothing save the plover from the marshes calling, and in yon western sky, about an hour ago, a star was falling." "a star? there's nothing strange in that." "no, nothing; but, above the thicket, somehow it seemed to me that god somewhere had just relieved a picket." this is not only good poetry; it reveals deep and fine feeling. [illustration: francis bret harte] through starr king's interest, his parishioner robert b. swain, superintendent of the mint, had early in 1864 appointed harte as his private secretary, at a salary of two hundred dollars a month, with duties that allowed considerable leisure. this was especially convenient, as a year or so before he had married, and additional income was indispensable. in may, 1864, harte left the _golden era_, joining charles henry webb and others in a new literary venture, the _californian_. it was a brilliant weekly. among the contributors were mark twain, charles warren stoddard, and prentice mulford. harte continued his delightful "condensed novels" and contributed poems, stories, sketches, and book reviews. "the society on the stanislaus," "john brown of gettysburg," and "the pliocene skull" belong to this period. in the "condensed novels" harte surpassed all parodists. with clever burlesque, there was both appreciation and subtle criticism. as chesterton says, "bret harte's humor was sympathetic and analytical. the wild, sky-breaking humor of america has its fine qualities, but it must in the nature of things be deficient in two qualities--reverence and sympathy--and these two qualities were knit into the closest texture of bret harte's humor." at this time harte lived a quiet domestic life. he wrote steadily. he loved to write, but he was also obliged to. literature is not an overgenerous paymaster, and with a growing family expenses tend to increase in a larger ratio than income. harte's sketches based on early experiences are interesting and amusing. his life in oakland was in many ways pleasant, but he evidently retained some memories that made him enjoy indulging in a sly dig many years after. he gives the pretended result of scientific investigation made in the far-off future as to the great earthquake that totally engulfed san francisco. the escape of oakland seemed inexplicable, but a celebrated german geologist ventured to explain the phenomenon by suggesting that "there are some things that the earth cannot swallow." my last recollection of harte, of a purely personal nature, was of an occurrence in 1866, when he was dramatic critic of the _morning call_ at the time i was doing a little reporting on the same paper. it happened that a benefit was arranged for some charity. "nan, the good-for-nothing," was to be given by a number of amateurs. the _nan_ asked me to play _tom_, and i had insufficient firmness to decline. after the play, when my face was reasonably clean, i dropped into the _call_ office, yearning for a word of commendation from harte. i thought he knew that i had taken the part, but he would not give me the satisfaction of referring to it. finally i mentioned, casually like, that i was _tom_, whereat he feigned surprise, and remarked in his pleasant voice, "was that you? i thought they had sent to some theater and hired a supe." in july, 1868, a. roman & co. launched the _overland monthly_, with harte as editor. he took up the work with eager interest. he named the child, planned its every feature, and chose his contributors. it was a handsome publication, modeled, in a way, on the _atlantic monthly,_ but with a flavor and a character all its own. the first number was attractive and readable, with articles of varied interest by mark twain, noah brooks, charles warren stoddard, william c. bartlett, t.h. rearden, ina coolbrith, and others--a brilliant galaxy for any period. harte contributed "san francisco from the sea." mark twain, long after, alluding to this period in his life, pays this characteristic acknowledgment: "bret harte trimmed and trained and schooled me patiently until he changed me from an awkward utterer of coarse grotesqueness to a writer of paragraphs and chapters that have found favor in the eyes of even some of the decentest people in the land." the first issue of the _overland_ was well received, but the second sounded a note heard round the world. the editor contributed a story--"the luck of roaring camp"--that was hailed as a new venture in literature. it was so revolutionary that it shocked an estimable proofreader, and she sounded the alarm. the publishers were timid, but the gentle editor was firm. when it was found that it must go in or he would go out, it went--and he stayed. when the conservative and dignified _atlantic_ wrote to the author soliciting something like it, the publishers were reassured. harte had struck ore. up to this time he had been prospecting. he had early found color and followed promising stringers. he had opened some fair pockets, but with the explosion of this blast he had laid bare the true vein, and the ore assayed well. it was high grade, and the fissure was broad. "the luck of roaring camp" was the first of a series of stories depicting the picturesque life of the early days which made california known the world over and gave it a romantic interest enjoyed by no other community. they were fresh and virile, original in treatment, with real men and women using a new vocabulary, with humor and pathos delightfully blended. they moved on a stage beautifully set, with a background of heroic grandeur. no wonder that california and bret harte became familiar household words. when one reflects on the fact that the exposure to the life depicted had occurred more than ten years before, from very brief experience, the wonder is incomprehensibly great. nothing less than genius can account for such a result. "tennessee's partner," "m'liss," "the outcasts of poker flat," and dozens more of these stories that became classics followed. the supply seemed exhaustless, and fresh welcome awaited every one. it was in september, 1870, that harte in the make-up of the _overland_ found an awkward space too much for an ordinary poem. an associate suggested that he write something to fit the gap; but harte was not given to dashing off to order, nor to writing a given number of inches of poetry. he was not a literary mechanic, nor could he command his moods. however, he handed his friend a bundle of manuscript to see if there was anything that he thought would do, and very soon a neat draft was found bearing the title "on the sinfulness of ah sin as reported by truthful james." it was read with avidity and pronounced "the very thing." harte demurred. he didn't think very well of it. he was generally modest about his work and never quite satisfied. but he finally accepted the judgment of his friend and consented to run it. he changed the title to "later words from truthful james," but when the proof came substituted "plain language from truthful james." he made a number of other changes, as was his wont, for he was always painstaking and given to critical polishing. in some instances he changed an entire line or a phrase of two lines. the copy read: "till at last he led off the right bower, that nye had just hid on his knee." as changed on the proof it read: "till at last he put down a right bower, which the same nye had dealt unto me." it was a happy second thought that suggested the most quoted line in this famous poem. the fifth line of the seventh verse originally read: "or is civilization a failure?" on the margin of the proof-sheet he substituted the ringing line: "we are ruined by chinese cheap labor," --an immense improvement--the verse reading: "then i looked up at nye, and he gazed unto me, and he rose with a sigh, and said, 'can this be? we are ruined by chinese cheap labor!' and he went for that heathen chinee." the corrected proof, one of the treasures of the university of california, with which harte was for a time nominally connected, bears convincing testimony to the painstaking methods by which he sought the highest degree of literary perfection. this poem was not intended as a serious addition to contemporary verse. harte disclaimed any purpose whatever; but there seems just a touch of political satire. "the chinese must go" was becoming the popular political slogan, and he always enjoyed rowing against the tide. the poem greatly extended his name and fame. it was reprinted in _punch_, it was liberally quoted on the floors of congress, and it "caught on" everywhere. perhaps it is today the one thing by which harte is best known. one of the most amusing typographical errors on record occurred in the printing of this poem. in explanation of the manner of the duplicity of _ah sin, truthful james_ was made to say: "in his sleeves, which were long, he had twenty-one packs:" and that was the accepted reading for many years, in spite of the physical impossibility of concealing six hundred and ninety-three cards and one arm in even a chinaman's sleeve. the game they played was euchre, where bowers are supreme, and what harte wrote was "jacks," not "packs." probably the same pious proofreader who was shocked at the "luck" did not know the game, and, as the rhyme was perfect, let it slip. later editions corrected the error, though it is still often seen. harte gave nearly three years to the _overland_. his success had naturally brought him flattering offers, and the temptation to realize on his reputation seems to have been more than he could withstand. the _overland_ had become a valuable property, eventually passing into control of another publisher. the new owners were unable or unwilling to pay what he thought he must earn, and somewhat reluctantly he resigned the editorship and left the state of his adoption. harte, with his family, left san francisco in february, 1871. they went first to chicago, where he confidently expected to be editor of a magazine to be called the _lakeside monthly_. he was invited to a dinner given by the projectors of the enterprise, at which a large-sized check was said to have been concealed beneath his plate; but for some unexplained reason he failed to attend the dinner and the magazine was given up. those who know the facts acquit him of all blame in the matter; but, in any event, his hopes were dashed, and he proceeded to the east disappointed and unsettled. soon after arriving at new york he visited boston, dining with the saturday club and visiting howells, then editor of the _atlantic_, at cambridge. he spent a pleasant week, meeting lowell, longfellow, and emerson. mrs. aldrich, in "crowding memories," gives a vivid picture of his charm and high spirits at this meeting of friends and celebrities. the boston atmosphere as a whole was not altogether delightful. he seemed constrained, but he did a fine stroke of business. james r. osgood & co. offered him ten thousand dollars for whatever he might write in a year, and he accepted the handsome retainer. it did not stimulate him to remarkable output. he wrote four stories, including "how santa claus came to simpson's bar," and five poems, including "concepcion de arguello." the offer was not renewed the following year. for seven years new york city was generally his winter home. some of his summers were spent in newport, and some in new jersey. in the former he wrote "a newport romance" and in the latter "thankful blossom." one summer he spent at cohasset, where he met lawrence barrett and stuart robson, writing "two men of sandy bar," produced in 1876. "sue," his most successful play, was produced in new york and in london in 1896. to earn money sorely needed he took the distasteful lecture field. his two subjects were "the argonauts" and "american humor." his letters to his wife at this time tell the pathetic tale of a sensitive, troubled soul struggling to earn money to pay debts. he writes with brave humor, but the work was uncongenial and the returns disappointing. from ottawa he writes: "do not let this worry you, but kiss the children for me, and hope for the best. i should send you some money, but there _isn't any to send_, and maybe i shall only bring back myself." the next day he added a postscript: "dear nan--i did not send this yesterday, waiting to find the results of last night's lecture. it was a fair house, and this morning--paid me $150, of which i send you the greater part." a few days later he wrote from lawrence, the morning after an unexpectedly good audience: "i made a hundred dollars by the lecture, and it is yours for yourself, nan, to buy minxes with, if you want to." from washington he writes: "thank you, dear nan, for your kind, hopeful letter. i have been very sick, very much disappointed; but i am better now and am only waiting for money to return. can you wonder that i have kept this from you? you have so hard a time of it there, that i cannot bear to have you worried if there is the least hope of a change in my affairs. god bless you and keep you and the children safe, for the sake of frank." no one can read these letters without feeling that they mirror the real man, refined of feeling, kindly and humorous, but not strong of courage, oppressed by obligations, and burdened by doubts of how he was to care for those he loved. with all his talent he could not command independence, and the lot of the man who earns less than it costs to live is hard to bear. harte had the faculty of making friends, even if by neglect he sometimes lost them, and they came to his rescue in this trying time. charles a. dana and others secured for him an appointment by president hayes as commercial agent at crefeld, prussia. in june, 1878, he sailed for england, leaving his family at sea cliff, long island, little supposing that he would never see them or america again. on the day he reached crefeld he wrote his wife in a homesick and almost despondent strain: "i am to all appearance utterly friendless; i have not received the first act of kindness or courtesy from anyone. i think things must be better soon. i shall, please god, make some good friends in good time, and will try and be patient. but i shall not think of sending for you until i see clearly that i can stay myself. if worst comes to worst i shall try to stand it for a year, and save enough to come home and begin anew there. but i could not stand it to see you break your heart here through disappointment as i mayhap may do." here is the artistic, impressionable temperament, easily disheartened, with little self-reliant courage or grit. but he seems to have felt a little ashamed of his plaint, for at midnight of the same day he wrote a second letter, half apologetic and much more hopeful, just because one or two people had been a little kind and he had been taken out to a _fest_. soon after, he wrote a letter to his younger son, then a small boy. it told of a pleasant drive to the rhine, a few miles away. he concludes: "it was all very wonderful, but papa thought after all he was glad his boys live in a country that is as yet _pure_ and _sweet_ and _good_--not in one where every field seems to cry out with the remembrance of bloodshed and wrong, and where so many people have lived and suffered that tonight, under this clear moon, their very ghosts seemed to throng the road and dispute our right of way. be thankful, my dear boy, that you are an american. papa was never so fond of his country before as in this land that has been so great, powerful, and so very hard and wicked." in may, 1880, he was made consul at glasgow, a position that he filled for five years. during this period he spent a considerable part of his time in london and in visiting at country homes. he lectured and wrote and made many friends, among the most valued of whom were william black and walter besant. a new administration came in with 1885 and harte was superseded. he went to london and settled down to a simple and regular life. for ten years he lived with the van de veldes, friends of long standing. he wrote with regularity and published several volumes of stories and sketches. in 1885 harte visited switzerland. of the alps he wrote: "in spite of their pictorial composition i wouldn't give a mile of the dear old sierras, with their honesty, sincerity, and magnificent uncouthness, for a hundred thousand kilometers of the picturesque vaud." of geneva he wrote: "i thought i should not like it, fancying it a kind of continental boston, and that the shadow of john calvin and the old reformers, or still worse the sentimental idiocy of rousseau and the de staels, still lingered." but he did like it, and wrote brilliantly of lake leman and mont blanc. returning to his home in aldershot he resumed work, giving some time to a libretto for a musical comedy, but his health was failing and he accomplished little. a surgical operation for cancer of the throat in march, 1902, afforded a little relief, but he worked with difficulty. on april 17th he began a new story, "a friend of colonel starbottle." he wrote one sentence and began another; but the second sentence was his last work, though a few letters to friends bear a later date. on may 5th, sitting at his desk, there came a hemorrhage of the throat, followed later in the day by a second, which left him unconscious. before the end of the day he peacefully breathed his last. pathetic and inexplicable were the closing days of this gifted man. an exile from his native land, unattended by family or kin, sustaining his lonely life by wringing the dregs of memory, and clasping in farewell the hands of a fancied friend of his dear old reprobate colonel, he, like kentuck, "drifted away into the shadowy river that flows forever to the unknown sea." in his more than forty years of authorship he was both industrious and prolific. in the nineteen volumes of his published work there must be more than two hundred titles of stories and sketches, and many of them are little known. some of them are disappointing in comparison with his earlier and perhaps best work, but many of them are charming and all are in his delightful style, with its undertone of humor that becomes dominant at unexpected intervals. his literary form was distinctive, with a manner not derived from the schools or copied from any of his predecessors, but developed from his own personality. he seems to have founded a modern school, with a lightness of touch and a felicity of expression unparalleled. he was vividly imaginative, and also had the faculty of giving dramatic form and consistency to an incident or story told by another. he was a story-teller, equally dexterous in prose or verse. his taste was unerring and he sought for perfect form. his atmosphere was breezy and healthful--out of doors with the fragrance of the pine-clad sierras. he was never morbid and introspective. his characters are virile and natural men and women who act from simple motives, who live and love, or hate and fight, without regard to problems and with small concern for conventionalities. harte had sentiment, but was realistic and fearless. he felt under no obligation to make all gamblers villains or all preachers heroes. he dealt with human nature in the large and he made it real. his greatest achievement was in faithfully mirroring the life of a new and striking epoch. he seems to have discovered that it was picturesque and to have been almost alone in impressing this fact on the world. he sketched pictures of pioneer life as he saw or imagined it with matchless beauty and compelled the interest and enjoyment of all mankind. his chief medium was the short story, to which he gave a new vogue. translated into many tongues, his tales became the source of knowledge to a large part of the people of europe as to california and the pacific. he associated the far west with romance, and we have never fully outlived it. that he was gifted as a poet no one can deny. perhaps his most striking use of his power as a versifier was in connection with the romantic spanish background of california history. such work as "concepcion de arguello" is well worth while. in his "spanish idylls and legends" he catches the fine spirit of the period and connects california with a past of charm and beauty. his patriotic verse has both strength and loveliness and reflects a depth of feeling that his lighter work does not lead us to expect. in his dialect verse he revels in fun and shows himself a genuine and cleanly humorist. if we search for the source of his great power we may not expect to find it; yet we may decide that among his endowments his extraordinary power of absorption contributes very largely. his early reference to "eager absorption" and "photographic sensitiveness" are singularly significant expressions. experience teaches the plodder, but the man of genius, supremely typified by shakespeare, needs not to acquire knowledge slowly and painfully. sympathy, imagination, and insight reveal truth, and as a plate, sensitized, holds indefinitely the records of the exposure, so harte, forty years after in london, holds in consciousness the impressions of the days he spent in tuolumne county. it is a great gift, a manifestation of genius. he had a fine background of inheritance and a lifetime of good training. bret harte was also gifted with an agreeable personality. he was even-tempered and good-natured. he was an ideal guest and enjoyed his friends. whatever his shortcomings and whatever his personal responsibility for them, he deserves to be treated with the consideration and generosity he extended to others. he was never censorious, and instances of his magnanimity are many. severity of judgment is a custom that few of us can afford, and to be generous is never a mistake. harte was extremely sensitive, and he deplored controversy. he was quite capable of suffering in silence if defense of self might reflect on others. his deficiencies were trivial but damaging, and their heavy retribution he bore with dignity, retaining the respect of those who knew him. as to what he was, as man and author, he is entitled to be judged by a jury of his peers. i could quote at length from a long list of associates of high repute, but they all concur fully with the comprehensive judgment of ina coolbrith, who knew him intimately. she says, "i can only speak of him in terms of unqualified praise as author, friend, and man." in the general introduction that harte wrote for the first volume of his collected stories he refers to the charge that he "confused recognized standards of morality by extenuating lives of recklessness and often criminality with a single solitary virtue" as "the cant of too much mercy." he then adds: "without claiming to be a religious man or a moralist, but simply as an artist, he shall reverently and humbly conform to the rules laid down by a great poet who created the parables of the prodigal son and the good samaritan, whose works have lasted eighteen hundred years, and will remain when the present writer and his generations are forgotten. and he is conscious of uttering no original doctrine in this, but only of voicing the beliefs of a few of his literary brethren happily living, and one gloriously dead, [footnote: evidently dickens.] who never made proclamation of this from the housetops." bret harte had a very unusual combination of sympathetic insight, emotional feeling, and keen sense of the dramatic. in the expression of the result of these powers he commanded a literary style individually developed, expressive of a rare personality. he was vividly imaginative, and he had exacting ideals of precision in expression. his taste was unerring. the depth and power of the great soul were not his. he was the artist, not the prophet. he was a delightful painter of the life he saw, an interpreter of the romance of his day, a keen but merciful satirist, a humorist without reproach, a patriot, a critic, and a kindly, modest gentleman. he was versatile, doing many things exceedingly well, and some things supremely well. he discerned the significance of the remarkable social conditions of early days in california and developed a marvelous power of presenting them in vivid and attractive form. his humor is unsurpassed. it is pervasive, like the perfume of the rose, never offending by violence. his style is a constant surprise and a never-ending delight. his spirit is kindly and generous. he finds good in unsuspected places, and he leaves hope for all mankind. he was sensitive, peace-loving, and indignant at wrong, a scorner of pretense, independent in thought, just in judgment. he surmounted many difficulties, bore suffering without complaint, and left with those who really knew him a pleasant memory. it would seem that he was a greater artist and a better man than is commonly conceded. in failing to honor him california suffers. he should be cherished as her early interpreter, if not as her spirit's discoverer, and ranked high among those who have contributed to her fame. he is the representative literary figure of the state. in her imaginary temple of fame or hall of heroes he deserves a prominent, if not the foremost, niche. as the generations move forward he must not be forgotten. bret harte at our hands needs not to be idealized, but he does deserve to be justly, gratefully, and fittingly realized. chapter v san francisco--the sixties we are familiar with the romantic birth of san francisco and its precocious childhood; we are well acquainted with its picturesque background of spanish history and the glorious days of '49; but i doubt if we are as well informed as to the significant and perhaps equally important second decade. it was my fortune to catch a hurried glance of san francisco in 1855, when the population was about forty-five thousand. i was then on the way from new england to my father's home in humboldt county. i next saw it in 1861 while on my way to and from attendance at the state fair. in 1864 i took up my residence in the city and it has since been continuous. that the almost neglected sixties may have some setting, let me briefly trace the beginnings. things moved slowly when america was discovered. columbus found the mainland in 1503. ten years later balboa reached the pacific, and, wading into the ocean, modestly claimed for his sovereign all that bordered its shores. thirty years thereafter the point farthest west was named mendocino, for mendoza, the viceroy ordering the expedition of cabrillo and ferrelos. thirty-seven years later came drake, and almost found san francisco bay. but all these discoveries led to no occupation. it seems incredible that two hundred and twenty-six years elapsed from cabrillo's visit to the day the first settlers landed in san diego, founding the first of the famous missions. historically, 1769 is surely marked. in this year napoleon and wellington were born and civilized california was founded. san francisco bay was discovered by a land party. it was august 6, 1775, seven weeks after the battle of bunker hill, that ayala cautiously found his way into the bay and anchored the "san carlos" off sausalito. five days before the declaration of independence was signed moraga and his men, the first colonists, arrived in san francisco and began getting out the timber to build the fort at the presidio and the church at mission dolores. vancouver, in 1792, poking into an unknown harbor, found a good landing-place at a cove around the first point he rounded at his right. the spaniards called it yerba buena, after the fragrant running vine that abounded in the lee of the sandhills which filled the present site of market street, especially at a point now occupied by the building of the mechanics-mercantile library. there was no human habitation in sight, nor was there to be for forty years, but friendly welcome came on the trails that led to the presidio and the mission. an occasional whaler or a trader in hides and tallow came and went, but foreigners were not encouraged to settle. it was in 1814 that the first "gringo" came. in 1820 there were thirteen in all california, three of whom were americans. in 1835 william a. richardson was the first foreign resident of yerba buena. he was allowed to lay out a street and build a structure of boards and ship's sails in the calle de fundacion, which generally followed the lines of the present grant avenue. the spot approximates number 811 of the avenue today. when dana came in 1835 it was the only house visible. the following year jacob p. leese built a complete house, and it was dedicated by a celebration and ball on the fourth of july in which the whole community participated. the settlement grew slowly. in 1840 there were sixteen foreigners. in 1844 there were a dozen houses and fifty people. in 1845 there were but five thousand people in all the state. the missions had been disbanded and the presidio was manned by one gray-haired soldier. the mexican war brought renewed life. on july 9, 1846, commodore sloat sent captain montgomery with the frigate "portsmouth," and the american flag was raised on the staff in the plaza of 1835, since called portsmouth square. thus began the era of american occupation. lieutenant bartlett was made alcalde, with large powers, in pursuance of which, on february 27, 1847, he issued a simple order that the town thereafter be known as san francisco,--and its history as such began. the next year gold was discovered. a sleepy, romantic, shiftless but picturesque community became wide-awake, energetic, and aggressive. san francisco leaped into prominence. every nation on earth sent its most ambitious and enterprising as well as its most restless and irresponsible citizens. in the last nine months of 1849, seven hundred shiploads were landed in a houseless town. they largely left for the mines, but more remained than could be housed. they lived on and around hulks run ashore and thousands found shelter in happy valley tents. a population of two thousand at the beginning of the year was twenty thousand at the end. it was a gold-crazed community. everything consumed was imported. gold dust was the only export. from 1849 to 1860, gold amounting to over six hundred million dollars was produced. the maximum--eighty-one millions--was reached in 1852. the following year showed a decline of fourteen millions, and 1855 saw a further decline of twelve millions. alarm was felt. at the same ratio of decline, in less than four years production would cease. it was plainly evident, if the state were to exist and grow, that other resources must be developed. in the first decade there were periods of great depression. bank and commercial failures were very frequent occurrences in 1854. the state was virtually only six years old--but what wonderful years they had been! in the splendor of achievement and the glamour of the golden fleece we lose sight of the fact that the community was so small. in the whole state there were not more than 350,000 people, of whom a seventh lived in san francisco. there were indications that the tide of immigration had reached its height. in 1854 arrivals had exceeded departures by twenty-four thousand. in 1855 the excess dropped to six thousand. my first view of san francisco left a vivid impression of a city in every way different from any i had ever seen. the streets were planked, the buildings were heterogeneous--some of brick or stone, others little more than shacks. portsmouth square was the general center of interest, facing the city hall and the post office. clay street hill was higher then than now. i know it because i climbed to its top to call on a boy who came on the steamer and lived there. there was but little settlement to the west of the summit. the leading hotel was the international, lately opened, on jackson street below montgomery. it was considered central in location, being convenient to the steamer landings, the custom house, and the wholesale trade. probably but one building of that period has survived. at the corner of montgomery and california streets stood parrott's granite block, the stone for which was cut in china and assembled in 1852 by chinese workmen imported for the purpose. it harbored the bank of page, bacon & co., and has been continuously occupied, surviving an explosion of nitroglycerine in 1866 (when wells, fargo & co. were its tenants) as well as the fire of 1906. wilson's exchange was in sansome street near sacramento. the american theater was opposite. where the bank of california stands there was a seed store. on the northeast corner of california and sansome streets was bradshaw's zinc grocery store. the growth of the city southward had already begun. the effort to develop north beach commercially had failed. meiggs' wharf was little used; the cobweb saloon, near its shore end, was symbolic. telegraph hill and its semaphore and time-ball were features of business life. it was well worth climbing for the view, which bayard taylor pronounced the finest in the world. at this time san francisco monopolized the commerce of the coast. everything that entered california came through the golden gate, and it nearly all went up the sacramento river. it was distinctly the age of gold. other resources were not considered. this all seemed a very insecure basis for a permanent state. that social and political conditions were threatening may be inferred when we recall that 1856 brought the vigilance committee. in 1857 came the fraser river stampede. twenty-three thousand people are said to have left the city, and real-estate values suffered severely. in 1860 the pony express was established, bringing "the states," as the east was generally designated, considerably nearer. it took but ten and a half days to st. louis, and thirteen to new york, with postage five dollars an ounce. steamers left on the first and fifteenth of the month, and the twenty-eighth and fourteenth were religiously observed as days for collection. no solvent man of honor failed to settle his account on "steamer day." the election of lincoln, followed by the threat of war, was disquieting, and the large southern element was out of sympathy with anything like coercion. but patriotism triumphed. early in 1861 a mass meeting was held at the corner of montgomery and market streets, and san francisco pledged her loyalty. in november, 1861, i attended the state fair at sacramento as correspondent for the _humboldt times_. about the only impression of san francisco on my arrival was the disgust i felt for the proprietor of the hotel at which i stopped, when, in reply to my eager inquiry for war news, he was only able to say that he believed there had been some fighting somewhere in virginia. this to one starving for information after a week's abstinence was tantalizing. after a week of absorbing interest, in a fair that seemed enormously important and impressive, i timed my return so as to spend sunday in san francisco, and it was made memorable by attending, morning and evening, the unitarian church, then in stockton near sacramento, and hearing starr king. he had come from boston the year before, proposing to fill the pulpit for a year, and from the first aroused great enthusiasm. i found the church crowded and was naturally consigned to a back seat, which i shared with a sewing-machine, for it was war-time and the women were very active in relief work. the gifted preacher was thirty-seven years old, but seemed younger. he was of medium height, had a kindly face with a generous mouth, a full forehead, and dark, glowing eyes. in june, 1864, i became a resident of san francisco, rejoining the family and becoming a clerk in the office of the superintendent of indian affairs. the city was about one-fifth its present size, claiming a population of 110,000. i want to give an idea of san francisco's character and life at that time, and of general conditions in the second decade. it is not easy to do, and demands the reader's help and sympathy. let him imagine, if he will, that he is visiting san francisco for the first time, and that he is a personal friend of the writer, who takes a day off to show him the city. in 1864 one could arrive here only by steamer; there were no railways. i meet my friend at the gangplank of the steamer on the wharf at the foot of broadway. to reach the car on east street (now the embarcadero), we very likely skirt gaping holes in the planked wharf, exposing the dark water lapping the supporting piles, and are assailed by bilge-like odors that escape. two dejected horses await us. entering the car we find two lengthwise seats upholstered in red plush. if it be winter, the floor is liberally covered by straw, to mitigate the mud. if it be summer, the trade winds are liberally charged with fine sand and infinitesimal splinters from the planks which are utilized for both streets and sidewalks. we rattle along east and intersecting streets until we reach sansome, upon which we proceed to bush, which practically bounds the business district on the south, thence we meander by a circuitous route to laurel hill cemetery near lone mountain. a guide is almost necessary. an incoming stranger once asked the conductor to let him off at the american exchange, which the car passed. he was surprised at the distance to his destination. at the cemetery end of the line he discovered that the conductor had forgotten him, but was assured that he would stop at the hotel on the way back. the next thing he knew he reached the wharf; the conductor had again forgotten him. his confidence exhausted, he insisted on walking, following the track until he reached the hotel. in the present instance we alight from the car when it reaches montgomery street, at the occidental hotel, new and attractive, well managed by a new yorker named leland and especially patronized by army people. we rest briefly and start out for a preliminary survey. three blocks to the south we reach market street and gaze upon the outer edge of the bustling city. across the magnificently wide but rude and unfinished street, at the immediate right, where the palace hotel is to stand, we see st. patrick's church and an orphan asylum. a little beyond, at the corner of third street, is a huge hill of sand covering the present site of the glaus spreckels building, upon which a steam-paddy is at work loading flat steam cars that run mission-ward. the lot now occupied by the emporium is the site of a large catholic school. at our left, stretching to the bay are coal-yards, foundries, planing-mills, box-factories, and the like. it will be years before business crosses market street. happy valley and pleasant valley, beyond, are well covered by inexpensive residences. the north beach and south park car line connects the fine residence district on and around rincon hill with the fine stretches of northern stockton street and the environs of telegraph hill. at the time i picture, no street-cars ran below montgomery, on market street; traffic did not warrant it. it was a boundary rather than a thoroughfare. it was destined to be one of the world's noted streets, but at this time the city's life pulsed through montgomery street, to which we will now return. turning from the apparent jumping-off place we cross to the "dollar side" and join the promenaders who pass in review or pause to gaze at the shop windows. montgomery street has been pre-eminent since the early days and is now at its height. for a long time clay street harbored the leading dry-goods stores, like the city of paris, but all are struggling for place in montgomery. here every business is represented--beach, roman, and bancroft, the leading booksellers; barrett & sherwood, tucker, and andrews, jewelers; donohoe, kelly & co., john sime, and hickox & spear, bankers; and numerous dealers in carpets, furniture, hats, french shoes, optical goods, etc. of course barry & patten's was not the only saloon. passing along we are almost sure to see some of the characters of the day--certainly emperor norton and freddie coombs (a reincarnated franklin), probably colonel stevenson, with his punch-like countenance, towering isaac friedlander, the poor rich michael reese, handsome hall mcallister, and aristocratic ogden hoffman. should the fire-bell ring we will see knickerbocker no. five in action, with chief scannell and "bummer" and "lazarus," and perhaps lillie hitchcock. when we reach washington street we cross to make a call at the bank exchange in the montgomery block, the largest structure on the street. the "exchange" is merely a popular saloon, but it boasts ten billiard tables and back of the bar hangs the famous picture of "samson and delilah." luncheon being in order we are embarrassed with riches. perhaps the mint restaurant is as good as the best and probably gives a sight of more prominent politicians than any other resort; but something quite characteristic is the daily gathering at jury's, a humble hole-in-the-wall in merchant street back of the _bulletin_ office. four lawyers who like one another, and like good living as well, have a special table. alexander campbell, milton andros, george sharp, and judge dwinelle will stop first in the clay street market, conveniently opposite, and select the duck, fish, or english mutton-chops for the day's menu. one of the number bears the choice to the kitchen and superintends its preparation while the others engage in shrimps and table-talk until it is served. if jury's is overflowing with custom, there are two other french restaurants alongside. after luncheon we have a glimpse of the business district, following back on the "two-bit" side of the street. at clay we pass a saloon with a cigar-stand in front and find a group listening to a man with bushy hair and a reddish mustache, who in an easy attitude and in a quaintly drawling voice is telling a story. we await the laugh and pass on, and i say that he is a reporter, lately from nevada, called mark twain. very likely we encounter at commercial street, on his way to the _call_ office, a well-dressed young man with dundreary whiskers and an aquiline nose. he nods to me and i introduce bret harte, secretary to the superintendent of the mint, and author of the clever "condensed novels" being printed in the _californian_. at california street we turn east, passing the shipping offices and hardware houses, and coming to battery street, where israelites wax fat in wholesale dry goods and the clothing business. for solid big business in groceries, liquors, and provisions we must keep on to front street--front by name only, for four streets on filled-in land have crept in front of front. following this very important street past the shipping offices we reach washington street, passing up which we come to battery street, where we pause to glance at the custom house and post office at the right and the recently established bank of california on the southwest corner of the two streets. having fairly surveyed the legitimate business we wish to see something of the engrossing avocation of most of the people of the city, of any business or no business, and we pass on to montgomery, crossing over to the center of the stock exchange activities. groups of men and women are watching the tapes in the brokers' offices, messengers are running in and out the board entrances, intense excitement is everywhere apparent. having gained admission to the gallery of the board room we look down on the frantic mob, buying and selling comstock shares. how much is really sold and how much is washing no one knows, but enormous transactions, big with fate, are of everyday occurrence. as we pass out we notice a man with strong face whose shoes show dire need of patching. asked his name, i answer, "jim keane; just now he is down, but some day he is bound to be way up." we saunter up clay, passing burr's savings bank and a few remaining stores, to kearny, and portsmouth square, whose glory is departing. the city hall faces it, and so does exempt engine house, but dentists' offices and cheap theaters and chinese stores are crowding in. clay street holds good boarding-houses, but decay is manifest. we pass on to stockton, still a favorite residence street; turning south we pass, near sacramento, the church in which starr king first preached, now proudly owned by the negro methodists. at post we reach union square, nearly covered by the wooden pavilion in which the mechanics' institute holds its fairs. diagonally opposite the southeast corner of the desecrated park are the buildings of the ambitious city college, and east of them a beautiful church edifice always spoken of as "starr king's church." very likely, seeing the church, i might be reminded of one of mr. king's most valued friends, and suggest that we call upon him at the golden gate flour-mill in pine street, where the california market was to stand. if we met horace davis, i should feel that i had presented one of our best citizens. dinner presents many opportunities; but i am inclined to think we shall settle on frank garcia's restaurant in montgomery near jackson, where good service awaits us, and we may hear the upraised voices of some of the big lawyers who frequent the place. for the evening we have the choice between several bands of minstrels, but if forrest and john mccullough are billed for "jack cade" we shall probably call on tom maguire. after the strenuous play we pass up washington street to peter job's and indulge in his incomparable ice-cream. on sunday i shall continue my guidance. churches are plentiful and preachers are good. in the afternoon i think i may venture to invite my friend to the willows, a public garden between mission and valencia and seventeenth and nineteenth streets. we shall hear excellent music in the open air and can sit at a small table and sip good beer. i find such indulgence far less wicked than i had been led to believe. when there is something distinctive in a community a visitor is supposed to take it in, and in the evening we attend the meeting of the dashaway association in its own hall in post street near dupont. it numbers five thousand members and meets sunday mornings and evenings. strict temperance is a live issue at this time. the sons of temperance maintain four divisions. there are besides two lodges of good templars and a san francisco temperance union. and in spite of all this the city feels called upon to support a home for inebriates at stockton and chestnut streets, to which the supervisors contribute two hundred and fifty dollars a month. i shall feel that i am derelict if i do not manage a jaunt to the cliff house. the most desirable method demands a span of horses for a spin out point lobos avenue. we may, however, be obliged to take a mcginn bus that leaves the plaza hourly. it will be all the same when we reach the cliff and gaze on ben butler and his companion sea-lions as they disport themselves in the ocean or climb the rocks. wind or fog may greet us, but the indifferent monsters roar, fight, and play, while the restless waves roll in. we must, also, make a special trip to rincon hill and south park to see how and where our magnates dwell. the 600 block in folsom street must not be neglected. the residences of such men as john parrott and milton s. latham are almost palatial. it is related that a visitor impressed with the elegance of one of these places asked a modest man in the neighborhood if he knew whose it was. "yes," he replied, "it belongs to an old fool by the name of john parrott, and i am he." we shall leave out something distinctive if we do not call at the what cheer house in sacramento street below montgomery, a hostelry for men, with moderate prices, notwithstanding many unusual privileges. it has a large reading-room and a library of five thousand volumes, besides a very respectable museum. guests are supplied with all facilities for blacking their own boots, and are made at home in every way. incidentally the proprietor made a good fortune, a large part of which he invested in turning his home at fourteenth and mission streets into a pleasure resort known as woodward's gardens, which for many years was our principal park, art gallery and museum. these are a few of the things i could have shown. but to know and appreciate the spirit and character of a city one must live in it and be of it; so i beg to be dismissed as a guide and to offer experiences and events that may throw some light on life in the stirring sixties. when i migrated from humboldt county and enlisted for life as a san franciscan i lived with my father's family in a small brick house in powell street near ellis. the golden west hotel now covers the lot. the little houses opposite were on a higher level and were surrounded by small gardens. both street and sidewalks were planked, but i remember that my brother and i, that we might escape the drifting sand, often walked on the flat board that capped the flimsy fence in front of a vacant lot. on the west of powell, at market, was st. ann's garden and nursery. on the east, where the flood building stands, was a stable and riding-school. much had been accomplished in city building, but the process was continuing. few of us realize the obstacles overcome. fifteen years before, the site was the rugged end of a narrow peninsula, with high rock hills, wastes of drifting sand, a curving cove of beach, bordered with swamps and estuaries, and here and there a few oases in the form of small valleys. in 1864 the general lines of the city were practically those of today. it was the present san francisco, laid out but not filled out. there was little west of larkin street and quite a gap between the city proper and the mission. size in a city greatly modifies character. in 1864 i found a compact community; whatever was going on seemed to interest all. we now have a multitude of unrelated circles; then there was one great circle including the sympathetic whole. the one theater that offered the legitimate drew and could accommodate all who cared for it. herold's orchestral concerts, a great singer like parepa rosa, or a violinist like ole bull drew all the music-lovers of the city. and likewise, in the early springtime when the unitarian picnic was announced at belmont or fairfax, it would be attended by at least a thousand, and heartily enjoyed by all, regardless of church connection. such things are no more, though the population to draw from be five times as large. in the sixties, church congregations and lecture audiences were much larger than they are now. there seemed always to be some one preacher or lecturer who was the vogue, practically monopolizing public interest. his name might be scudder or kittredge or moody, but while he lasted everybody rushed to hear him. and there was commonly some special fad that prevailed. spiritualism held the boards for quite a time. changes in real-estate values were a marked feature of the city's life. the laying out of broadway was significant of expectations. banks in the early days were north of pacific in montgomery, but very soon the drift to the south began. in 1862, when the unitarian church in stockton street near sacramento was found too small, it was determined to push well to the front of the city's growth. two lots were under final consideration, the northwest corner of geary and powell, where the st. francis now stands, and the lot in geary east of stockton, now covered by the whitney building. the first lot was a corner and well situated, but it was rejected on the ground that it was "too far out." the trustees paid $16,000 for the other lot and built the fine church that was occupied until 1887, when it was felt to be too far down town, and the present building at franklin and geary streets was erected. incidentally, the lot sold for $120,000. the evolution of pavements has been an interesting incident of the city's life. planks were cheap and they held down some of the sand, but they grew in disfavor. in 1864 the superintendent of streets reported that in the previous year 1,365,000 square feet of planks had been laid, and 290,000 square feet had been paved with cobbles, a lineal mile of which cost $80,000. how much suffering they cost the militia who marched on them is not reported. nicholson pavement was tried and found wanting. basalt blocks found brief favor. finally we reached the modern era and approximate perfection. checker-board street planning was a serious misfortune to the city, and it was aggravated by the narrowness of most of the streets. kearny street, forty-five and one-half feet wide, and dupont, forty-four and one-half feet, were absurd. in 1865 steps were taken to add thirty feet to the west side of kearny. in 1866 the work was done, and it proved a great success. the cost was five hundred and seventy-nine thousand dollars, and the addition to the value of the property was not less than four million dollars. when the work began the front-foot value at the northern end was double that at market street. today the value at market street is more than five times that at broadway. the first sunday after my arrival in san francisco i went to the unitarian church and heard the wonderfully attractive and satisfying dr. bellows, temporary supply. it was the beginning of a church connection that still continues and to which i owe more than i can express. dr. bellows had endeared himself to the community by his warm appreciation of their liberal support of the sanitary commission during the civil war. the interchange of messages between him in new york and starr king in san francisco had been stimulating and effective. when the work was concluded it was found that california had furnished one-fourth of the $4,800,000 expended. governor low headed the san francisco committee. the pacific coast, with a population of half a million, supplied one-third of all the money spent by this forerunner of the red cross. the other states of the union, with a population of about thirty-two million, supplied two-thirds. but california was far away and it was not thought wise to drain the west of its loyal forces, and we ought to have given freely of our money. in all, quite a number found their way to the fighting front. a friend of mine went to the wharf to see lieutenant sheridan, late of oregon, embark for the east and active service. sheridan was grimly in earnest, and remarked: "i'll come back a captain or i'll not come back at all." when he did come back it was with the rank of lieutenant-general. while san francisco was unquestionably loyal, there were not a few southern sympathizers, and loyalists were prepared for trouble. i soon discovered that a secret union league was active and vigilant. weekly meetings for drill were held in the pavilion in union square, admission being by password only. i promptly joined. the regimental commander was martin j. burke, chief of police. my company commander was george t. knox, a prominent notary public. i also joined the militia, choosing the state guard, captain dawes, which drilled weekly in the armory in market street opposite dupont. fellow members were horace davis and his brother george, charles w. wendte (now an eastern d.d.), samuel l. cutter, fred glimmer of the unitarian church, henry michaels, and w.w. henry, father of the present president of mills college. our active service was mainly confined to marching over the cruel cobble-stones on the fourth of july and other show-off occasions, while commonly we indulged in an annual excursion and target practice in the wilds of alameda. once we saw real service. when the news of the assassination of lincoln reached san francisco the excitement was intense. newspapers that had slandered him or been lukewarm in his support suffered. the militia was called out in fear of a riot and passed a night in the basement of platt's hall. but preparedness was all that was needed. a few days later we took part in a most imposing procession. all the military and most other organizations followed a massive catafalque and a riderless horse through streets heavily draped with black. the line of march was long, arms were reversed, the sorrowing people crowded the way, and solemnity and grief on every hand told how deeply lincoln was loved. i had cast my first presidential vote for him, at turn verein hall, bush street, november 6, 1864. when the news of his re-election by the voters of every loyal state came to us, we went nearly wild with enthusiasm, but our heartiest rejoicing came with the fall of richmond. we had a great procession, following the usual route--from washington square to montgomery, to market, to third, to south park, where fair women from crowded balconies waved handkerchiefs and flags to shouting marchers--and back to the place of beginning. processioning was a great function of those days, observed by the cohorts of st. patrick and by all political parties. it was a painful process, for the street pavement was simply awful. sometimes there were trouble and mild assaults. the only recollection i have of striking a man is connected with a torchlight procession celebrating some union victory. when returning from south of market, a group of jeering toughs closed in on us and i was lightly hit. i turned and using my oil-filled lamp at the end of a staff as a weapon, hit out at my assailant. the only evidence that the blow was an effective one was the loss of the lamp; borne along by solid ranks of patriots i clung to an unilluminated stick. party feeling was strong in the sixties and bands and bonfires plentiful. at one election the democrats organized a corps of rangers, who marched with brooms, indicative of the impending clean sweep by which they were to "turn the rascals out." for each presidential election drill crops were organized, but the blaine invincibles didn't exactly prove so. the republican party held a long lease of power, however. governor low was a very popular executive, while municipally the people's party, formed in 1856 by adherents of the vigilance committee, was still in the saddle, giving good, though not far-sighted and progressive, government. only those who experienced the abuses under the old methods of conducting elections can realize the value of the provision for the uniform ballot and a quiet ballot box, adopted in 1869. there had been no secrecy or privacy, and peddlers of rival tickets fought for patronage to the box's mouth. one served as an election officer at the risk of sanity if not of life. in the "fighting seventh" ward i once counted ballots for thirty-six consecutive hours, and as i remember conditions i was the only officer who finished sober. during my first year in government employ the depreciation in legal-tender notes in which we were paid was very embarrassing. one hundred dollars in notes would bring but thirty-five or forty dollars in gold, and we could get nothing we wanted except with gold. my second year in san francisco i lived in howard street near first and was bookkeeper for a stock-broker. i became familiar with the fascinating financial game that followed the development of the comstock lode, discovered in 1859. it was 1861 before production was large. then began the silver age, a new era that completely transformed california and made san francisco a great center of financial power. within twenty years $340,000,000 poured into her banks. the world's silver output increased from forty millions a year to sixty millions. in september of 1862 the stock board was organized. at first a share in a company represented a running foot on the lode's length. in 1871, mr. cornelius o'connor bought ten shares of consolidated virginia at eight dollars a share. when it had been divided into one thousand shares and he was offered $680 a share, he had the sagacity to sell, realizing a profit of $679,920 on his investment of $80. at the time he sold, a share represented one-fourteenth of an inch. in six years the bonanza yielded $104,000,000, of which $73,000,000 was paid in dividends. the effect of such unparalleled riches was wide-spread. it made nevada a state and gave great impetus to the growth of san francisco. it had a marked influence on society and modified the character of the city itself. fifteen years of abnormal excitement, with gains and losses incredible in amount, unsettled the stability of trade and orderly business and proved a demoralizing influence. speculation became a habit. it was gambling adjusted to all conditions, with equal opportunity for millionaire or chambermaid, and few resisted altogether. few felt shame, but some were secretive. a few words are due adolph sutro, who dealt in cigars in his early manhood, but went to nevada in 1859 and by 1861 owned a quartz-mill. in 1866 he became impressed with the idea that the volume of water continually flowing into the deeper mines of the comstock lode would eventually demand an outlet on the floor of carson valley, four miles away. he secured the legislation and surprised both friends and enemies by raising the money to begin construction of the famous sutro tunnel. he began the work in 1859, and in some way carried it through, spending five million dollars. the mine-owners did not want to use his tunnel, but they had to. he finally sold out at a good price and put the most of a large fortune in san francisco real estate. at one time he owned one-tenth of the area of the city. he forested the bald hills of the san miguel rancho, an immense improvement, changing the whole sky-line back of golden gate park. he built the fine sutro baths, planted the beautiful gardens on the heights above the cliff house, established a car line that meant to the ocean for a nickel, amassed a library of twenty thousand volumes, and incidentally made a good mayor. he was a public benefactor and should be held in grateful memory. the memories that cluster around a certain building are often impressive, both intrinsically and by reason of their variety. platt's hall is connected with experiences of first interest. for many years it was the place for most occasional events of every character. it was a large square auditorium on the spot now covered by the mills building. balls, lectures, concerts, political meetings, receptions, everything that was popular and wanted to be considered first-class went to platt's hall. starr king's popularity had given the unitarian church and sunday-school a great hold on the community. at christmas its festivals were held in platt's hall. we paid a hundred dollars for rent and twenty-five dollars for a christmas-tree. persons who served as doorkeepers or in any other capacity received ten dollars each. at one dollar for admission we crowded the big hall and always had money left over. our entertainments were elaborate, closing with a dance. my first service for the sunday-school was the unobserved holding up an angel's wing in a tableau. one of the most charming of effects was an artificial snowstorm, arranged for the concluding dance at a christmas festival. the ceiling of the hall was composed of horizontal windows giving perfect ventilation and incidentally making it feasible for a large force of boys to scatter quantities of cut-up white paper evenly and plentifully over the dancers, the evergreen garlands decorating the hall, and the polished floor. it was a long-continued downpour, a complete surprise, and for many a year a happy tradition. in platt's hall wonderfully fine orchestral concerts were held, under the very capable direction of rudolph herold. early in the sixties caroline richings had a successful season of english opera. later the howsons charmed us for a time. all the noteworthy lecturers of the world who visited california received us at platt's hall. beecher made a great impression. carl schurz, also, stirred us deeply. i recall one clever sentence. he said, "when the time came that this country needed a poultice it elected president hayes and got it." of our local talent real eloquence found its best expression in henry edgerton. the height of enthusiasm was registered in war-time by the mighty throng that gathered at lincoln's call for a hundred thousand men. starr king was the principal speaker. he had called upon his protã©gã©, bret harte, for a poem for the occasion. harte doubted his ability, but he handed mr. king the result of his effort. he called it the "reveille." king was greatly delighted. harte hid himself in the concourse. king's wonderful voice, thrilling with emotion, carried the call to every heart and the audience with one accord stood and cheered again and again. one of the most striking coincidences i ever knew occurred in connection with the comparatively mild earthquake of 1866. it visited us on a sunday at the last moments of the morning sermon. those in attendance at the unitarian church were engaged in singing the last hymn, standing with books in hand. the movement was not violent but threatening. it flashed through my mind that the strain on a building with a large unsupported roof must be great. faces blanched, but all stood quietly waiting the end, and all would have gone well had not the large central pipe of the organ, apparently unattached, only its weight holding it in place, tottered on its base and leaped over the heads of the choir, falling into the aisle in front of the first pews. the effect was electric. the large congregation waited for no benediction or other form of dismissal. the church was emptied in an incredibly short time, and the congregation was very soon in the middle of the street, hymnbooks in hand. the coincidence was that the verse being sung was, "the seas shall melt, and skies to smoke decay, rocks turn to dust, and mountains fall away." we had evening services at the time, and dr. stebbins again gave out the same hymn, and this time we sang it through. the story of golden gate park and how the city got it is very interesting, but must be much abridged. in 1866 i pieced out a modest income by reporting the proceedings of the board of supervisors and the school board for the _call_. it was in the palmy days of the people's party. the supervisors, elected from the wards in which they lived, were honest and fairly able. the man of most brains and initiative was frank mccoppin. the most important question before them was the disposition of the outside lands. in 1853 the city had sued for the four square leagues (seventeen thousand acres) allowed under the mexican law. it was granted ten thousand acres, which left all land west of divisadero street unsettled as to title. appeal was taken, and finally the city's claim was confirmed. in 1866 congress passed an act confirming the decree, and the legislature authorized the conveyance of the lands to occupants. they were mostly squatters, and the prize was a rich one. congress had decreed "that all of this land not needed for public purposes, or not previously disposed of, should be conveyed to the persons in possession," so that all the latitude allowed was as to what "needs for public purposes" covered. there had been agitation for a park; indeed, frederick law olmstead had made an elaborate but discouraging report, ignoring the availability of the drifting sand-hills that formed so large a part of the outside lands, recommending a park including our little duboce park and one at black point, the two to be connected by a widened and parked van ness avenue, sunken and crossed by ornamental bridges. the undistributed outside lands to be disposed of comprised eighty-four hundred acres. the supervisors determined to reserve one thousand acres for a park. some wanted to improve the opportunity to secure without cost considerably more. the _bulletin_ advocated an extension that would bring a bell-shaped panhandle down to the yerba buena cemetery, property owned by the city and now embraced in the civic center. after long consideration a compromise was made by which the claimants paid to those whose lands were kept for public use ten per cent of the value of the lands distributed. by this means 1,347.46 acres were rescued, of which golden gate park included 1,049.31, the rest being used for a cemetery, buena vista park, public squares, school lots, etc. the ordinances accomplishing the qualified boon to the city were fathered by mccoppin and clement. other members of the committee, immortalized by the streets named after them, were clayton, ashbury, cole, shrader, and stanyan. the story of the development of golden gate park is well known. the beauty and charm are more eloquent than words, and john mclaren, ranks high among the city's benefactors. the years from 1860 to 1870 marked many changes in the character and appearance of san francisco. indeed, its real growth and development date from the end of the first decade. before that we were clearing off the lot and assembling the material. the foundation of the structure that we are still building was laid in the second decade. statistics establish the fact. in population we increased from less than 57,000 to 150,000--163 per cent. in the first decade our assessed property increased $9,000,000; in the second, $85,000,000. our imports and exports increased from $3,000,000 to $13,000,000. great gain came through the silver production, but greater far from the development of the permanent industries of the land--grain, fruit, lumber--and the shipping that followed it. the city made strides in growth and beauty. our greatest trial was too much prosperity and the growth of luxury and extravagance. chapter vi later san francisco in a brief chapter little can be offered that will tell the story of half a century of life of a great city. no attempt will be made to trace its progress or to recount its achievement. it is my purpose merely to record events and occurrences that i remember, for whatever interest they may have or whatever light they may throw on the life of the city or on my experience in it. for many years we greatly enjoyed the exhibits and promenade concerts of the mechanics' institute fairs. the large pavilion also served a useful purpose in connection with various entertainments demanding capacity. in 1870 there was held a very successful musical festival; twelve hundred singers participated and camilla urso was the violinist. the attendance exceeded six thousand. the mercantile library was in 1864 very strong and seemed destined to eternal life, but it became burdened with debt and sought to extricate itself by an outrageous expedient. the legislature passed an act especially permitting a huge lottery, and for three days in 1870 the town was given over to gambling, unabashed and unashamed. the result seemed a triumph. half a million dollars was realized, but it was a violation of decency that sounded the knell of the institution, and it was later absorbed by the plodding mechanics' institute, which had always been most judiciously managed. its investments in real estate that it used have made it wealthy. a gala day of 1870 was the spectacular removal of blossom rock. the early-day navigation was imperiled by a small rock northwest of angel island, covered at low tide by but five feet of water. it was called blossom, from having caused the loss of an english ship of that name. the government closed a bargain with engineer von schmidt, who three years before had excavated from the solid rock at hunter's point a dry dock that had gained wide renown. von schmidt guaranteed twenty-four feet of water at a cost of seventy-five thousand dollars, no payment to be made unless he succeeded. he built a cofferdam, sunk a shaft, planted twenty-three tons of powder in the tunnels he ran, and on may 25th, after notice duly served, which sent the bulk of the population to view-commanding hills, he pushed an electric button that fired the mine, throwing water and debris one hundred and fifty feet in the air. blossom rock was no more, deep water was secured, and von schmidt cashed his check. on my trip from humboldt county to san francisco in 1861 i made the acquaintance of andrew s. hallidie, an english engineer who had constructed a wire bridge over the klamath river. in 1872 he came to my printing office to order a prospectus announcing the formation of a small company to construct a new type of street-car, to be propelled by wire cable running in a conduit in the street and reached by a grip through a slot. it was suggested by the suffering of horses striving to haul cars up our steep hills and it utilized methods successfully used in transporting ores from the mines. on august 2, 1873, the first cable-car made a successful trial trip of seven blocks over clay street hill, from kearny to leavenworth. later it was extended four blocks to the west. from this beginning the cable-roads spread over most of the city and around the world. with the development of the electric trolley they were largely displaced except on steep grades, where they still perform an important function. mr. hallidie was a public-spirited citizen and an influential regent of the university of california. in 1874 there was forced upon the citizens of san francisco the necessity of taking steps to give better care and opportunity to the neglected children of the community. a poorly conducted reform school was encouraging crime instead of effecting reform. on every hand was heard the question, "what shall we do with our boys?" encouraged by the reports of what had been accomplished in new york city by charles l. brace, correspondence was entered into, and finally the boys and girls aid society was organized. difficulty was encountered in finding any one willing to act as president of the organization, but george c. hickox, a well-known banker, was at last persuaded and became much interested in the work. for some time it was a difficult problem to secure funds to meet the modest expenses. a lecture by charles kingsley was a flat failure. much more successful was an entertainment at platt's hall at which well-known citizens took part in an old-time spelling-match. in a small building in clementina street we began with neighborhood boys, who were at first wild and unruly. senator george c. perkins became interested, and for more than forty years served as president. through him senator fair gave five thousand dollars and later the two valuable fifty-vara lots at grove and baker streets, still occupied by the home. we issued a little paper, _child and state_, in which we appealed for a building, and a copy fell into the hands of miss helen mcdowell, daughter of the general. she sent it to miss hattie crocker, who passed it to her father, charles crocker, of railroad fame. he became interested and wrote for particulars, and when the plans were submitted he told us to go ahead and build, sending the bills to him. these two substantial gifts made possible the working out of our plans, and the results have been very encouraging. when the building was erected, on the advice of the experts of the period, two lockups were installed, one without light. experience soon convinced us that they could be dispensed with, and both were torn out. an honor system was substituted, to manifest advantage, and failures to return when boys are permitted to visit parents are negligible in number. the three months of summer vacation are devoted to berry-picking, with satisfaction to growers and to the boys, who last year earned eleven thousand dollars, of which seven thousand dollars was paid to the boys who participated, in proportion to the amount earned. william c. ralston was able, daring, and brilliant. in 1864 he organized the bank of california, which, through its virginia city connection and the keenness and audacity of william sharon, practically monopolized the big business of the comstock, controlling mines, milling, and transportation. in san francisco it was _the_ bank, and its earnings were huge. ralston was public-spirited and enterprising. he backed all kinds of schemes as well as many legitimate undertakings. he seemed the great power of the pacific coast. but in 1875, when the silver output dropped and the tide that had flowed in for a dozen years turned to ebb, distrust was speedy. on the afternoon of august 26th, as i chanced to be passing the bank, i saw with dismay the closing of its doors. the death of ralston, the discovery of wild investments, and the long train of loss were intensely tragic. the final rehabilitation of the bank brought assurance and rich reward to those who met their loss like men, but the lesson was a hard one. in retrospect ralston seems to typify that extraordinary era of wild speculation and recklessness. no glance at old san francisco can be considered complete which does not at least recognize emperor norton, a picturesque figure of its life. a heavy, elderly man, probably jewish, who paraded the streets in a dingy uniform with conspicuous epaulets, a plumed hat, and a knobby cane. whether he was a pretender or imagined that he was an emperor no one knew or seemed to care. he was good-natured, and he was humored. everybody bought his scrip in fifty cents denomination. i was his favored printer, and he assured me that when he came into his estate he would make me chancellor of the exchequer. he often attended the services of the unitarian church, and expressed his feeling that there were too many churches and that when the empire was established he should request all to accept the unitarian church. he once asked me if i could select from among the ladies of our church a suitable empress. i told him i thought i might, but that he must be ready to provide for her handsomely; that no man thought of keeping a bird until he had a cage, and that a queen must have a palace. he was satisfied, and i never was called upon. the most memorable of the fourth of july celebrations was in 1876, when the hundredth anniversary called for something special. the best to be had was prepared for the occasion. the procession was elaborate and impressive. dr. stebbins delivered a fine oration; there was a poem, of course; but the especial feature was a military and naval spectacle, elaborate in character. the fortifications around the harbor and the ships available were scheduled to unite in an attack on a supposed enemy ship attempting to enter the harbor. the part of the invading cruiser was taken by a large scow anchored between sausalito and fort point. at an advertised hour the bombardment was to begin, and practically the whole population of the city sought the high hills commanding the view. the hills above the presidio were then bare of habitations, but on that day they were black with eager spectators. when the hour arrived the bombardment began. the air was full of smoke and the noise was terrific, but alas for marksmanship, the willing and waiting cruiser rode serenely unharmed and unhittable. the afternoon wore away and still no chance shot went home. finally a whitehall boat sneaked out and set the enemy ship on fire, that her continued security might no longer oppress us. it was a most impressive exhibit of unpreparedness, and gave us much to think of. on the evening of the same day, father neri, at st. ignatius college, displayed electric lighting for the first time in san francisco, using three french arc lights. the most significant event of the second decade was the rise and decline of the workingmen's party, following the remarkable episode of the sand lot and denis kearney. the winter of 1876-77 had been one of slight rainfall, there had been a general failure of crops, the yield of gold and silver had been small, and there was much unemployment. there had been riots in the east and discontent and much resentment were rife. the line of least resistance seemed to be the clothes-line. the chinese, though in no wise responsible, were attacked. laundries were destroyed, but rioting brought speedy organization. a committee of safety, six thousand strong, took the situation in hand. the state and the national governments moved resolutely, and order was very soon restored. kearney was clever and knew when to stop. he used his qualities of leadership for his individual advantage and eventually became sleek and prosperous. in the meantime he was influential in forming a political movement that played a prominent part in giving us a new constitution. the ultra conservatives were frightened, but the new instrument did not prove so harmful as was feared. it had many good features and lent itself readily to judicial construction. while we now treat the episode lightly, it was at the time a serious matter. it was jack cade in real life, and threatened existing society much as the bolshevists do in russia. the significant feature of the experience was that there was a measure of justification for the protest. vast fortunes had been suddenly amassed and luxury and extravagance presented a damaging contrast to the poverty and suffering of the many. heartlessness and indifference are the primary danger. the result of the revolt was on the whole good. the warning was needed, and, on the other hand, the protestants learned that real reforms are not brought about by violence or even the summary change of organic law. in 1877 i had the good fortune to join the chit-chat club, which had been formed three years before on very simple lines. a few high-minded young lawyers interested in serious matters, but alive to good-fellowship, dined together once a month and discussed an essay that one of them had written. the essayist of one meeting presided at the next. a secretary-treasurer was the only officer. originally the papers alternated between literature and political economy, but as time went on all restrictions were removed, although by usage politics and religion are shunned. the membership has always been of high character and remarkable interest has been maintained. i have esteemed it a great privilege to be associated with so fine a body of kindly, cultivated men, and educationally it has been of great advantage. i have missed few meetings in the forty-four years, and the friendships formed have been many and close. we formerly celebrated our annual meetings and invited men of note. our guests included generals howard, gibbons, and miles, the lecontes, edward rowland sill, and luther burbank. we enjoyed meeting celebrities, but our regular meetings, with no formality, proved on the whole more to our taste and celebrations were given up. when i think of the delight and benefit that i have derived from this association of clubbable men i feel moved to urge that similar groups be developed wherever even a very few will make the attempt. in 1879 i joined many of my friends and acquaintances in a remarkable entertainment on a large scale. it was held in the mechanics' pavilion and continued for many successive nights. it was called the "carnival of authors." the immense floor was divided into a series of booths, occupied by representative characters of all the noted authors, shakespeare, chaucer, dickens, irving, scott, and many others. a grand march every evening introduced the performances or receptions given at the various booths, and was very colorful and amusing. my character was the fortune-teller in the alhambra, and my experiences were interesting and impressive. my disguise was complete, and in my zodiacal quarters i had much fun in telling fortunes for many people i knew quite well, and i could make revelations that seemed to them very wonderful. in the grand march i could indulge in the most unmannered swagger. my own sister asked in indignation: "who is that old man making eyes at me?" i held many charming hands as i pretended to study the lines. one evening charles crocker, as he strolled past, inquired if i would like any help. i assured him that beauty were safer in the hands of age. a young woman whom i saw weekly at church came with her cousin, a well-known banker. i told her fortune quite to her satisfaction, and then informed her that the gentleman with her was a relative, but not a brother. "how wonderful!" she exclaimed. a very well-known irish stock operator came with his daughter, whose fortune i made rosy. she persuaded her father to sit. nearly every morning i had met him as he rode a neat pony along a street running to north beach, where he took a swim. i told him that the lines of his hand indicated water, that he had been born across the water. "yes," he murmured, "in france." i told him he had been successful. "moderately so," he admitted. i said, "some people think it has been merely good luck, but you have contributed to good fortune. you are a man of very regular habits. among your habits is that of bathing every morning in the waters of the bay." "oh, god!" he ejaculated, "he knows me!" some experiences were not so humorous. a very hard-handed, poorly dressed but patently upright man took it very seriously. i told him he had had a pretty hard life, but that no man could look him in the face and say that he had been wronged by him. he said that was so, but he wanted to ask my advice as to what to do when persecuted because he could not do more than was possible to pay an old debt for which he was not to blame. i comforted him all i could, and told him he should not allow himself to be imposed upon. when he left he asked for my address down town. he wanted to see me again. the depth of suffering and the credulity revealed were often embarrassing and made me feel a fraud when i was aiming merely to amuse. i was glad again to become my undisguised self. it was in the late eighties that julia ward howe visited her sister near the city, and i very gladly was of service in helping her fill some of her engagements. she gave much pleasure by lectures and talks and enjoyed visiting some of our attractions. she was charmed with the broadway grammar school, where jean parker had achieved such wonderful results with the foreign girls of the north beach locality. i remember meeting a distinguished educator at a dinner, and i asked him if he had seen the school. he said he had. "what do you think of it?" i asked him. "i think it is the finest school in the world," he said. i took mrs. howe to a class. she was asked to say a few words, and in her beautiful voice she gained instant and warm attention. she asked all the little girls who spoke french in their homes to stand. many rose. then she called for spanish. many more stood. she followed with scandinavian and italian. but when she came to those who used english she found few. she spoke to several in their own tongue and was most enthusiastically greeted. i also escorted her across the bay to mills college, with which she was greatly pleased. she proved herself a good sport. with true bohemianism, she joined in luncheon on the ferryboat, eating ripe strawberries from the original package, using her fingers and enjoying the informality. she fitted every occasion with dignity or humor. in the pulpit at our church she preached a remarkably fine sermon. mozoomdar, the saintly representative of the brahmo somaj, was a highly attractive man. his voice was most musical, and his bearing and manner were beautiful. he seemed pure spirit and a type of the deeply religious nature. nor was he without humor. in speaking of his visit to england he said that his hosts generally seemed to think that for food he required only "an unlimited quantity of milk." politics has had a wide range in san francisco,--rotten at times, petty at others, with the saving grace of occasional idealism. the consolidation act and the people's party touched high-water mark in reform. with the lopping off of the san mateo end of the peninsula in 1856, one board of supervisors was substituted for the three that had spent $2,646,000 the year before. with e.w. burr at its head, under the new board expenditures were reduced to $353,000. the people's party had a long lease of power, but in 1876 mccoppin was elected mayor. later came the reigns of little bosses, the specter of the big corporation boss behind them all, and then the triumph of decency under mcnab, when good men served as supervisors. then came the sinister triumph of ruef and the days of graft, cut short by the amazing exposure, detection, and overthrow of entrenched wickedness, and the administration of dr. taylor, a high idealist, too good to last. early in 1904 twenty-five gentlemen (five of whom were members of the chit-chat club) formed an association for the improvement and adornment of san francisco. d.h. burnham was invited to prepare a plan, and a bungalow was erected on a spur of twin peaks from which to study the problem. a year or more was given to the task, and in september, 1905, a comprehensive report was made and officially sanctioned, by vote and publication. to what extent it might have been followed but for the event of april, 1906, cannot be conjectured, but it is matter of deep regret that so little resulted from this very valuable study of a problem upon which the future of the city so vitally depends. it is not too late to follow its principal features, subject to such modifications as are necessary in the light of a good deal that we have accomplished since the report. san francisco's possibilities for beauty are very great. the earthquake and fire of april, 1906, many san franciscans would gladly forget; but as they faced the fact, so they need not shrink from the memory. it was a never to be effaced experience of man's littleness and helplessness, leaving a changed consciousness and a new attitude. being aroused from deep sleep to find the solid earth wrenched and shaken beneath you, structures displaced, chimneys shorn from their bases, water shut off, railway tracks distorted, and new shocks recurring, induces terror that no imagination can compass. after breakfasting on an egg cooked by the heat from an alcohol lamp, i went to rescue the little i could from my office, and saw the resistless approaching fire shortly consume it. lack of provisions and scarcity of water drove me the next morning across the bay. two days afterward, leaving my motherless children, i returned to bear a hand in relief and restoration. every person going up market street stopped to throw a few bricks from the street to make possible a way for vehicles. for miles desolation reigned. in the unburned districts bread-lines marked the absolute leveling. bankers and beggars were one. very soon the mighty tide of relief set in, beginning with the near-by counties and extending to the ends of the earth. among our interesting experiences at red cross headquarters was the initiation of dr. devine into the habits of the earthquake. he had come from new york to our assistance. we were in session and j.s. merrill was speaking. there came a decidedly sharp shake. an incipient "oh!" from one of the ladies was smothered. mr. merrill kept steadily on. when he had concluded and the shock was over he turned to dr. devine and remarked: "doctor, you look a little pale. i thought a moment ago you were thinking of going out." dr. devine wanly smiled as he replied: "you must excuse me. remember that this is my first experience." i think i never saw a little thing give so much pleasure as when a man who had been given an old coat that was sent from mendocino county found in a pocket a quarter of a dollar that some sympathetic philanthropist had slipped in as a surprise. it seemed a fortune to one who had nothing. perhaps a penniless mother who came in with her little girl was equally pleased when she found that some kind woman had sent in a doll that her girl could have. one of our best citizens, frederick dohrmann, was in germany, his native land, at the time. he had taken his wife in pursuit of rest and health. they had received kindly entertainment from many friends, and decided to make some return by a california reception, at the town hostelry. they ordered a generous dinner. they thought of the usual wealth of flowers at a california party, and visiting a florist's display they bought his entire stock. the invited guests came in large numbers, and the host and hostess made every effort to emphasize their hospitality. but after they had gone mr. dohrmann remarked to his wife: "i somehow feel that the party has not been a success. the people did not seem to enjoy themselves as i thought they would." the next morning as they sought the breakfast-room they were asked if they had seen the morning papers. ordering them they found staring head-lines: "san francisco destroyed by an earthquake!" their guests had seen the billboards on their way to the party, but could not utterly spoil the evening by mentioning it, yet were incapable of merriment. mr. dohrmann and his wife returned at once, and though far from well, he threw himself into the work of restoration, in which no one was more helpful. the dreadful event, however, revealed much good in human nature. helpfulness in the presence of such devastation and suffering might be expected, but honor and integrity after the sharp call of sympathy was over have a deeper meaning. one of my best customers, the bancroft-whitney company, law publishers, having accounts with lawyers and law-booksellers all over the country, lost not only all their stock and plates but all their books of accounts, and were left without any evidence of what was owing them. they knew that exclusive of accounts considered doubtful there was due them by customers other than those in san francisco $175,000. their only means of ascertaining the particulars was through those who owed it. they decided to make it wholly a matter of honor, and sent to the thirty-five thousand lawyers in the united states the following printed circular, which i printed at a hastily assembled temporary printing office across the bay: _to our friends and patrons_: _a_--we have lost all our records of accounts. _b_--our net loss will exceed $400,000. simply a question of honor. _first_--will each lawyer in the country send us a statement of what he owes us, whether due or not due, and names of books covered by said statement on enclosed blank (blue blank). _second_--information for our records (yellow blank). _third_--send us a postal money order for all the money you can now spare. please fill out and send us as soon as possible the forms enclosed. may 15, 1906. returns of money and of acknowledgment were prompt and encouraging. some of those considered doubtful were the first to acknowledge their indebtedness. before long they were able to reproduce their books and the acknowledged balances nearly equaled their estimated total of good accounts. remittances were made until over $170,000 was paid. of this amount about $25,000 covered accounts not included in their estimate of collectible indebtedness. this brought their estimated total to $200,000, and established the fact that over eighty-five per cent of all that was owed them was acknowledged promptly under this call on honor. four years later they were surprised by the receipt of a check for $250 from a lawyer in florida for a bill incurred long before, of which they had no memory. let those who scoff at ideals and bemoan the dishonesty of this materialistic age take note that money is not all, and let those who grudgingly admit that there are a few honest men but no honest lawyers take notice that even lawyers have some sense of honor. some few instances of escape are interesting. i have a friend who was living on the taylor street side of russian hill. when the quake came, his daughter, who had lived in japan and learned wise measures, immediately filled the bathtub with water. a doomed grocery-store near by asked customers to help themselves to goods. my friend chose a dozen large siphon bottles of soda water. the house was detached and for a time escaped, but finally the roof caught from flying embers and the fire was slowly extending. when the time came to leave the house a large american flag was raised to a conspicuous staff. a company of soldiers sent from the presidio for general duty saw the flag several blocks away, and made for the house to save the colors. finding the bathroom water supply, they mixed it with sand and plastered the burning spots. they arrested the spreading flames, but could not reach the fire under the cornice. then they utilized the siphon bottles; one soldier, held by his legs, hung over the roof and squirted the small stream on the crucial spot. the danger was soon over and the house was saved with quite a group of others that would have burned with it. while many individuals never recovered their property conditions or their nerve, it is certain that a new spirit was generated. great obstacles were overcome and determination was invincible. we were forced to act broadly, and we reversed the negative policy of doing nothing and owing nothing. we went into debt with our eyes open, and spent millions in money for the public good. the city was made safe and also beautiful. the city hall, the public library, and the auditorium make our civic center a source of pride. the really great exposition of 1915 was carried out in a way to increase our courage and our capacity. we have developed a fine public spirit and efficient co-operation. we need fear nothing in the future. we have character and we are gaining in capacity. vocation and avocation have about equally divided my time and energy during my residence in san francisco. i have done some things because i was obliged to and many others because i wished to. when one is fitted and trained for some one thing he is apt to devote himself steadily and profitably to it, but when he is an amateur and not a master he is sure to be handicapped. after about a year in the indian department a change in administration left me without a job. for about a year i was a bookkeeper for a stock-broker. then for another year i was a money-broker, selling currency, silver, and revenue stamps. when that petered out i was ready for anything. a friend had loaned money to a printer and seemed about to lose it. in 1867 i became bookkeeper and assistant in this printing office to rescue the loan, and finally succeeded. i liked the business and had the hardihood to buy a small interest, borrowing the necessary money from a bank at one per cent a month. i knew absolutely nothing of the art and little of business. it meant years of wrestling for the weekly pay-roll, often in apprehension of the sheriff, but for better or for worse i stuck to it and gradually established a good business. i found satisfaction in production and had many pleasant experiences. in illustration i reproduce an order i received in 1884 from fred beecher perkins, librarian of the recently established free public library. (he was father of charlotte perkins stetson.) san francisco free public library [handwritten: dec 19 1884 c.a. murdock & co gent. we need two hundred (200) more of those blue chex. please make and deliver same pdq and oblige yours truly f.b. perkins librarian. p.s. the _substance_ of this order is official. the _form_ is slightly speckled with the spice of unofficiality. f.b.p.] [illustration: the clay street office the day after] in 1892, as president of the san francisco typothetae, i had the great pleasure of cooperating with the president of the typographical union in giving a reception and dinner to george w. childs, of philadelphia. our relations were not always so friendly. we once resisted arbitrary methods and a strike followed. my men went out regretfully, shaking hands as they left. we won the strike, and then by gradual voluntary action gave them the pay and hours they asked for. when the earthquake fire of 1906 came i was unfortunately situated. i had lately bought out my partner and owed much money. to meet all my obligations i felt obliged to sell a controlling interest in the business, and that was the beginning of the end. i was in active connection with the printing business for forty-seven years. i am forced to admit that it would have been much to my advantage had i learned in my early life to say "no" at the proper time. the loss in scattering one's powers is too great to contemplate with comfort. i had a witty partner who once remarked, "i have great respect for james bunnell, for he has but one hobby at a time." i knew the inference. a man who has too many hobbies is not respectable. he is not even fair to the hobbies. i have always been overloaded and so not efficient. it is also my habit to hold on. it seems almost impossible to drop what i have taken up, and while there is gain in some ways through standing by there is gross danger in not resolutely stopping when you have enough. in addition to the activities i have incidentally mentioned i have served twenty-five years on the board of the associated charities, and still am treasurer. i have been a trustee of the california school of mechanical arts for at least as long. i have served for years on the board of the babies aid, and also represent the protestant charities on the home-finding agency of the native sons and daughters. it is an almost shameful admission of dissipation. no man of good discretion spreads himself too thin. when i was relieved from further public service, and had disposed of the printing business, it was a great satisfaction to accept the field secretaryship of the american unitarian association for the pacific coast. i enjoyed the travel and made many delightful acquaintances. it was an especial pleasure to accompany such a missionary as dr. william l. sullivan. in 1916 we visited most of the churches on the coast, and it was a constant pleasure to hear him and to see the gladness with which he was always received, and the fine spirit he inspired. i have also found congenial occupation in keeping alive _the pacific unitarian_. thirty years is almost venerable in the life of a religious journal. i have been favored with excellent health and with unnumbered blessings of many kinds. i rejoice at the goodness and kindness of my fellow men. my experience justifies my trustful and hopeful temperament. i believe "the best is yet to be." i am thankful that my lot has been cast in this fair city. i love it and i have faith in its future. there have been times of trial and of fear, but time has told in favor of courage not to be lost and deep confidence in final good. it cannot be doubted that the splendid achievement of the panama-pacific exposition gave strong faith in power to withstand adverse influences and temporary weakness. when we can look back upon great things we have accomplished we gain confidence in ability to reach any end that we are determined upon. it is manifest that a new spirit, an access of faith, has come to san francisco since she astonished the world and surprised herself by creating the magnificent dream on the shores of the bay. at its conclusion a few of us determined it should not be utterly lost. we formed an exposition preservation league through which we salvaged the palace of fine arts, the most beautiful building of the last five centuries, the incomparable marina, a connected driveway from black point to the presidio, the lagoon, and other features that will ultimately revert to the city, greatly adding to its attractiveness. fifty years of municipal life have seen great advance and promise a rich future. materially they have been as prosperous as well-being demands or as is humanly safe--years of healthy growth, free of fever and delirium, in which natural resources have been steadily developed and we have somewhat leisurely prepared for world business on a large scale. in population we have increased from about 150,000 to about 550,000, which is an average advance from decade to decade of thirty-three per cent. bank clearances are considered the best test of business. our clearing house was established in 1876, and the first year the total clearances were $520,000. we passed the million mark in 1900, and in 1920 they reached $8,122,000,000. in 1870 our combined exports and imports were about $13,000,000. in 1920 they were $486,000,000, giving california fourth rank in the national record. the remarkable feature in all our records is the great acceleration in the increase in the years since the disaster of 1906. savings bank receipts in 1920 are twice as large as in 1906, postal receipts three times as large, national bank resources four times as large, national bank deposits nine times as large. there can be no reasonable doubt that san francisco is to be a very important industrial and commercial city. every indication leads to this conclusion. the more important consideration of character and spirit cannot be forecast by statistics, but much that has been accomplished and the changed attitude on social welfare and the humanities leave no doubt on the part of the discerning that we have made great strides and that the future is full of promise. chapter vii incidents in public service at twenty-two i found myself register of the humboldt land office, with offices on the first floor of a building at eureka, the second story of which was occupied by a school. an open veranda extended across the front. when i first let myself into the office, i carelessly left the key in the lock. a mischievous girl simply gave it a turn and i was a prisoner, with a plain but painful way of escape--not physically painful, but humiliating to my official pride. there was nothing for it but ignominiously to crawl out of the window onto the veranda and recover the key--and that i forthwith did. the archives of the office proved interesting. the original register was a missouri congressman, who had been instructed to proceed to humboldt city and open the office. humboldt city was on the map and seemed the logical location. but it had "died aborning" and as a city did not exist. so the register took the responsibility of locating the office at eureka, and in explanation addressed to the president, whom he denominated "buckhannan," a letter in which he went at length into the "hole" subject. the original draft was on file. i was authorized to receive homestead applications, to locate land warrants, to hear contests, and to sell "offered land." the latter was government land that had been offered for sale at $1.25 an acre and had not been taken. strangely enough, it embraced a portion of the redwood belt along mad river, near arcata. but one man seemed aware of the opportunity. john preston, a tanner of arcata, would accumulate thirty dollars in gold and with it buy fifty dollars in legal-tender notes. then he would call and ask for the plat, and, after considerable pawing, he would say, "well, charlie, i guess i'll take that forty." whereupon the transaction would be completed by my taking his greenbacks and giving him a certificate of purchase for the forty acres of timber-land that had cost him seventy-five cents an acre, and later probably netted him not less than three hundred dollars an acre for stumpage alone. today it would be worth twice that. the opportunity was open to all who had a few cents and a little sense. sales of land were few and locations infrequent, consequently commissions were inconsiderable. now and then i would hold a trial between conflicting claimants, some of them quite important. it was natural that the respective attorneys should take advantage of my youth and inexperience, for they had known me in my verdant boyhood and seemed to rejoice in my discomfiture. i had hard work to keep them in order. they threatened one another with ink-bottles and treated me with contempt. they would lure me on when i rejected evidence as inadmissible, offering slightly changed forms, until i was forced to reverse myself. when i was uncertain i would adjourn court and think it over. these were trying experiences, but i felt sure that the claimants' rights would be protected on appeal to the commissioner of the general land office and finally to the secretary of the interior. i was glad that in the biggest case i guessed right. one occurrence made a strong impression on me. it was war-time, and loyalty was an issue. a rancher from mendocino county came to eureka to prove up on his land and get a patent. he seemed to me a fine man, but when he was asked to take the oath of allegiance he balked. i tried my best to persuade him that it was harmless and reasonable, but he simply wouldn't take it, and went back home without his patent. my experiences while chief clerk in the office of the superintendent of indian affairs are too valuable to be overlooked. i traveled quite freely and saw unfamiliar life. i had a very interesting trip in 1865, to inspect the round valley indian reservation and to distribute clothing to the indians. it was before the days of railroads in that part of california. two of us drove a light wagon from petaluma to ukiah, and then put saddles on our horses and started over the mountains to the valley. we took a cold lunch, planning to stay overnight at a stockman's ranch. when we reached the place we found a notice that he had gone to a rodeo. we broke into his barn to feed our horses, but we spared his house. failing to catch fish in the stream near by, we made our dinner of its good water, and after a troubled night had the same fare for breakfast. for once in my life i knew hunger. to the nearest ranch was half a day's journey, and we lost no time in heading for it. on the way i had an encounter with a vicious rattlesnake. the outcome was more satisfactory than it might have been. at noon, when we found a cattleman whose indian mate served venison and hot bread of good quality and abundant quantity, we were appreciative and happy. the remainder of the trip was uneventful. the equal division of clothing or supplies among a lot of indians throws helpful light on the causes of inequality. a very few days suffice to upset all efforts at impartiality. a few, the best gamblers, soon have more than they need, while the many have little or nothing. the valleys of mendocino county are fascinatingly beautiful, and a trip direct to the coast, with a spin along ten miles of perfect beach as we returned, was a fine contrast to hungry climbing over rugged heights. another memorable trip was with two indians from the mouth of the klamath river to its junction with the trinity at weitchpec. the whole course of the stream is between lofty peaks and is a continuous series of sharp turns. after threading its winding way, it is easy to understand what an almost solid resistance would be presented to a rapidly rising river. with such a watershed as is drained by the two rivers, the run-off in a storm would be so impeded as to be very slow. the actual result was demonstrated in 1861. in august of that year, a.s. hallidie built a wire bridge at weitchpec. he made the closest possible examination as to the highest point the river had reached. in an indian rancheria he found a stone door-sill that had been hollowed by constant use for ages. this was then ninety-eight feet above the level of the flowing river. he accepted it as absolutely safe. in december, 1861, the river rose thirty feet above the bridge and carried away the structure. the indians living on lower mad river had been removed for safety to the smith river indian reservation. they were not happy and felt they might safely return, now that the indian war was over. the white men who were friendly believed that if one of the trusted indians could be brought down to talk with his friends he could satisfy the others that it would be better to remain on the reservation. it was my job to go up and bring him down. we came down the beach past the mouth of the klamath, gold bluff, and trinidad, to fort humboldt, and interviewed many white settlers friendly to the indians until the representative was satisfied as to the proper course to follow. in 1851 "gold bluff" was the first great mining excitement. the klamath river enters the ocean just above the bluff that had been made by the deposit of sand, gravel, and boulders to the height of a hundred feet or more. the waves, beating against the bluff for ages, have doubtless washed gold into the ocean's bed. in 1851 it was discovered that at certain tides or seasons there were deposited on the beach quantities of black sand, mingled with which were particles of gold. nineteen men formed a company to take up a claim and work the supposedly exhaustless deposit. an expert report declared that the sand measured would yield each of the men the modest sum of $43,000,000. great excitement stirred san francisco and eight vessels left with adventurers. but it soon was found that black sand was scarce and gold much more so. for some time it paid something, but as a lure it soon failed. when i was first there i was tremendously impressed when shown at the level of the beach, beneath the bluff and its growing trees, an embedded redwood log. it started the imagination on conjectures of when and where it had been clad in beauty as part of a living landscape. an interesting conclusion to this experience was traveling over the state with charles maltby, appointed to succeed my friend, to turn over the property of the department. he was a personal friend of president lincoln, and he bore a striking resemblance to him and seemed like him in character. in 1883 a nominee for the assembly from san francisco declined the honor, and it devolved on a group of delegates to select a candidate in his place. they asked me to run, and on the condition that i should solicit no votes and spend no money i consented. i was one of four republicans elected from san francisco. in the entire state we were outnumbered about four to one. but politics ordinarily cuts little figure. the only measure i introduced provided for the probationary treatment of juvenile delinquents through commitment to an unsectarian organization that would seek to provide homes. i found no opposition in committee or on the floor. when it was reached i would not endanger its passage by saying anything for it. it passed unanimously and was concurred in by the senate. my general conclusion is that the average legislator is ready to support a measure that he feels is meritorious and has no other motive than the general good. we were summoned in extra session to act on matters affecting the railroads. it was at a time when they were decidedly in politics. the central pacific was generally credited with controlling the legislative body of the state. a powerful lobby was maintained, and the company was usually able to thwart the passage of any legislation the political manager considered detrimental to its interests. the farmers and country representatives did all in their power to correct abuses and protect the interests of the people of the state, but the city representatives, in many instances not men of character, were usually controlled by some boss ready to do the bidding of the railroad's chief lobbyist. the hope for decency is always in free men, and they generally are from the country. it was pathetic at times to watch proceedings. i recall one instance, where a young associate from san francisco had cast a vote that was discreditable and pretty plainly indicated corrupt influence. the measure he supported won a passage, but a motion for reconsideration carried, and when it came up the following day the father of the young man was seated by his side as the vote was taken. he was a much-respected plasterer, and he came from his home on a hurried call to save his son from disgrace. it was a great relief when on recall the son reversed his vote and the measure was lost. of course, there were punitive measures, unreasonable and unjust, and some men were afraid to be just if the railroad would in any way be benefited. i tried to be discriminating and impartial, judging each measure on its merits. i found it was a thankless task and bred suspicion. an independent man is usually distrusted. at the end of the session a fine old farmer, consistently against the railroad, said to me: "i couldn't make you out for a long time. some days i gave you a white mark, and some days a black one. i finally give you a white mark--but it was a close shave." i was impressed with the power of the speaker to favor or thwart legislation. at the regular session some senator had introduced a bill favoring the needs of the university of california. he wanted it concurred in by the assembly, and as the leading democrats were pretty busy with their own affairs he entrusted it to me. the speaker favored it, and he did not favor a bill in the hands of a leader of the house involving an appropriation. he called me to his seat and suggested that at the reassembling of the assembly after luncheon i should take the floor to move that the bill be placed on the first-reading file. he knew that the leader would be ready with his pet bill, but he would recognize me. when the gavel fell after luncheon three men leaped for the floor. i arose well at the side of the chamber, while the leader stood directly in front, but the speaker happened (?) to see me first, and the entrusted bill started for speedy success. it is always pleasant to discover unsuspected humor. there was a very serious-appearing country member who, with the others of a committee, visited the state prison at san quentin. we were there at the midday meal and saw the prisoners file in to a substantially laden table. he watched them enjoy the spread, and quietly remarked, "a man who wouldn't be satisfied with such food as that deserves to be turned out of the state prison." some reformer had introduced a bill providing for a complete new code of criminal procedure. it had been referred to the appropriate committee and in due time it made its report. i still can see the committee chairman, a country doctor, as he stood and shook a long finger at the members before him, saying: "mr. speaker, we ask that this measure be read in full to the assembly. i want you to know that i have been obliged to hear it, and i am bound that every member of the house shall hear it." my conclusion at the end of the session was that the people of the state were fortunate in faring no worse. the many had little fitness; a few had large responsibility. doubtful and useless measures predominate, but they are mostly quietly smothered. the country members are watchful and discriminating and a few leaders exercise great power. to me it was a fine experience, and i made good friends. i was interested in proposed measures, and would have willingly gone back the next term. some of my friends sounded the political boss of the period and asked if i could be given a place on the ticket. he smiled and said, "we have no use for him." when the nominating convention was held he sent in by a messenger a folded piece of paper upon which was inscribed the name of the man for whom they had use--and my legislative career was at an end. i went back to my printing business, which never should have been neglected, and stayed mildly by it for eleven years. then, there being a vacancy on the board of education, i responded to the wish of friends and accepted the appointment to help them in their endeavor to better our schools. john swett, an experienced educator, was superintendent. the majority of the board was composed of high-minded and able men. they had turned over the selection of teachers to the best-fitted professors of the university and were giving an economical and creditable administration. if a principalship was vacant, applications were apt to be disregarded, and the person in the department considered most capable and deserving was notified of election. there were, however, some loose methods. all graduates of the high schools were privileged to attend a normal class for a year and then were eligible without any examination to be appointed teachers. the board was not popular with the teachers, many of whom seemed to consider that the department was mainly for their benefit. at the end of the unexpired term i was elected a member of the succeeding board, and this was continued for five years. when the first elected board held a preliminary canvass i naturally felt much interest as to my associates, some of whom were entire strangers. among them was henry t. scott, of the firm of shipbuilders who had built the "oregon." some one remarked that a prominent politician (naming him) would like to know what patronage would be accorded him. mr. scott very forcibly and promptly replied: "so far as i am concerned, not a damned bit. i want none for myself, and i will oppose giving any to him or anyone else." i learned later that he had been elected without being consulted, while absent in the east. upon his return a somewhat notorious woman principal called on him and informed him that she was responsible for his election--at least, his name had been submitted to her and received her approval. he replied that he felt she deserved no thanks for that, as he had no desire to serve. she said she had but one request to make; her janitress must not be removed. he gave her no assurances. soon afterward the matter of appointments came up. mr. scott was asked what he wanted, and he replied: "i want but one thing. it involves the janitress of mrs. ----'s school. i want her to be removed immediately." "all right," replied the questioner. "whom shall we name?" "whomever you please," rejoined scott. "i have no candidate; but no one can tell me what i must or must not do." substitution followed at once. later mr. scott played the star part in the most interesting political struggle i ever knew. a democratic victory placed in the superintendent's office a man whose christian name was appropriately andrew jackson. he had the naming of his secretary, who was ex-officio clerk of the board, which confirmed the appointment. one george beanston had grown to manhood in the office and filled it most satisfactorily. the superintendent nominated a man with no experience, whom i shall call wells, for the reason that it was not his name. mr. scott, a democratic member, and i were asked to report on the nomination. the superintendent and the committee discussed the matter at a pleasant dinner at the pacific-union club, given by chairman scott. at its conclusion the majority conceded that usage and courtesy entitled the superintendent to the appointment. feeling that civil service and the interest of the school department were opposed to removal from position for mere political differences, i demurred and brought in a minority report. there were twelve members, and when the vote to concur in the appointment came up there was a tie, and the matter went over for a week. during the week one of the beanston supporters was given the privilege of naming a janitor, and the suspicion that a trade had been made was justified when on roll-call he hung his head and murmured "wells." the cause seemed lost; but when later in the alphabetical roll scott's name was reached, he threw up his head and almost shouted "beanston," offsetting the loss of the turncoat and leaving the vote still a tie. it was never called up again, and beanston retained the place for another two years. early in 1901 i was called up on the telephone and asked to come to mayor phelan's office at once. i found there some of the most ardent civil service supporters in the city. richard j. freud, a member of the civil service commission, had suddenly died the night before. the vacancy was filled by the mayor's appointment. eugene schmitz had been elected mayor and would take his seat the following day, and the friends of civil service distrusted his integrity. they did not dare to allow him to act. haste seemed discourteous to the memory of freud, but he would want the best for the service. persuaded of the gravity of the matter, i accepted the appointment for a year and filed my commission before returning to my place of business. i enjoyed the work and its obvious advantage to the departments under its operation. the police department especially was given an intelligent and well-equipped force. an amusing incident of an examination for promotion to the position of corporal concerned the hopes we entertained for the success of a popular patrolman. but he did not apply. one day one of the board met him and asked him if he was not to try for it. "i think not," he replied. "my early education was very unlimited. what i know, i know; but i'll be damned if i'm going to give you fellows a chance to find out what i don't know!" i chanced to visit washington during my term as commissioner, and through the courtesy of senator perkins had a pleasant call on president roosevelt. a senator seems to have ready access to the ordinary president, and almost before i realized it we were in the strenuous presence. a cordial hand-clasp and a genial smile followed my introduction, and as the senator remarked that i was a civil service commissioner, the president called: "shake again. i used to be one of those fellows myself." senator perkins went on: "mr. murdock and i have served for many years as fellow trustees of the boys and girls aid society." "ah," said the president, "modeled, i presume, on brace's society, in which my father was greatly interested. do you know i believe work with boys is about the only hope? it's pretty hard to change a man, but when you can start a boy in the right way he has a chance." turning to me he remarked, "did you know that governor brady of alaska was one of brace's placed-out boys!" then of perkins he asked, "by the way, senator, how is brady doing?" "very well, i understand," replied the senator. "i believe he is a thoroughly honest man." "yes; but is he also able? it is as necessary for a man in public life to be able as to be honest." he bade us a hearty good-by as we left him. he impressed me as untroubled and courageous, ready every day for what came, and meeting life with cheer. the story of the moral and political revolution of 1907 has never been adequately told, nor have the significance and importance of the event been fully recognized. the facts are of greater import than the record; but an eyewitness has responsibility, and i feel moved to give my testimony. perhaps so complete a reversal of spirit and administration was never before reached without an election by the people. the faithfulness and nerve of one official backed by the ability of a detective employed by a public-spirited citizen rescued the city government from the control of corrupt and irresponsible men and substituted a mayor and board of supervisors of high character and unselfish purpose. this was accomplished speedily and quietly. with positive proof of bribery that left conviction and a term in prison as the alternative to resignation, district attorney william h. langdon had complete control of the situation. in consultation with those who had proved their interest in the welfare of the city, he asked edward robeson taylor to serve as mayor, privileged to select sixteen citizens to act as supervisors in place of the implicated incumbents, who would be induced to resign. dr. taylor was an attorney of the highest standing, an idealist of fearless and determined character. no pledges hampered him. he was free to act in redeeming the city. in turn, he asked no pledge or promise of those whom he selected to serve as supervisors. he named men whom he felt he could trust, and he subsequently left them alone, asking nothing of them and giving them no advice. it was the year after the fire. i was conducting a substitute printing-office in the old car-barn at geary and buchanan streets. one morning dr. taylor came in and asked if he might speak to me in private. i was not supplied with facilities for much privacy, but i asked him in and we found seats in the corner of the office farthest from the bookkeeper. without preliminary, he said, "i want you to act as one of the supervisors." wholly surprised, i hesitated a moment and then assured him that my respect for him and what he had undertaken was so great that if he was sure he wanted me i would serve. he went out with no further comment, and i heard nothing more of it until i received a notice to meet at his office in the temporary city hall on july 16th. in response to the call i found fifteen other men, most of whom i knew slightly. we seemed to be waiting for something. mr. langdon was there and mr. burns, the detective, was in and out. mr. gallagher, late acting mayor and an old-time friend of the district attorney, was helping in the transfer, in which he was included. langdon would suggest some procedure: "how will this do, jim?" "it seems to me, billy, that this will be better," gallagher would reply. burns finally reported that the last of the "bunch" had signed his resignation and that we could go ahead. we filed into the boardroom. mayor taylor occupied the chair, to which the week before he had been obediently but not enthusiastically elected by "those about to die." the supervisor alphabetically ranking offered his written resignation, which the mayor promptly accepted. he then appointed as successor the first, alphabetically, on his list. the deputy county clerk was conveniently near and promptly administered the oath and certified the commission. the old member slunk or swaggered out and the new member took his place. so the dramatic scene continued until the transformation was accomplished and a new era dawned. the atmosphere was changed, but was very serious and determined. everyone felt the gravity of the situation and that we had no easy task ahead. solemnity marked the undertaking and full realization that hard work alone could overcome obstacles and restore endurable conditions. many of the men selected by dr. taylor had enjoyed experience and all were anxious to do their best. with firm grasp and resolute procedure, quick results followed. there was to be an election in november. some of the strongest members had accepted service as an emergency call and could not serve longer; but an incredible amount of planning was accomplished and a great deal disposed of, so that though ten of the appointed board served but six months they had rendered a great service and fortunately were succeeded by other men of character, and the good work went steadily on. in looking back to the problems that confronted the appointed board and the first elected board, also headed by dr. taylor, they seem insurmountable. it is hard now to appreciate the physical conditions of the city. it was estimated that not less than five million dollars would be required to put the streets into any decent condition. it was at first proposed to include this, sum in the bond issue that could not be escaped, but reflection assured us that so temporary a purpose was not a proper use of bond money, and we met the expenditure from the annual tax levy. we found the smallest amount required for urgent expenditure in excess of the tax levy was $18,200,000, and at a special election held early in 1908 the voters endorsed the proposed issue by a vote of over 21,000 to 1800. the three largest expenditures were for an auxiliary water system for fire protection ($5,200,000), for school buildings ($5,000,000), and for sewers ($4,000,000). i cannot follow the various steps by which order was brought out of chaos, nor can i give special acknowledgment where it is manifestly due; but i can bear testimony to the unselfishness and faithfulness of a remarkable body of public officials and to a few of the things accomplished. to correct gross evils and restore good conditions is no slight task; but to substitute the best for the worst is a great achievement. this san francisco has done in several marked instances. there was a time when about the only thing we could boast was that we spent a _less_ sum per capita than any city in the union for the care of hospital patients. i remember hearing that fine citizen, frederick dohrmann, once say, "every supervisor who has gone out of public service leaving our old county hospital standing is guilty of a municipal crime." it was a disgrace of which we were ashamed. the fire had spared the building, but the new supervisors did not. we now have one of the best hospitals in the country, admirably conducted. our city prison is equally reversed. it was our shame; it is our pride. the old almshouse was a discreditable asylum for the politician who chanced to superintend it. today our "relief home" is a model for the country. in 1906 the city was destroyed because unprotected against fire. today we are as safe as a city can be. in the meantime the reduced cost of insurance pays insured citizens a high rate of interest on the cost of our high-pressure auxiliary fire system. our streets were once noted for their poor construction and their filthy condition. recently an informed visitor has pronounced them the best to be found. we had no creditable boulevards or drives. quietly and without bond expenditure we have constructed magnificent examples. our school buildings were shabby and poor. many now are imposing and beautiful. this list could be extended; but turn for a moment to matters of manners. where are the awful corner-groceries that helped the saloons to ruin men and boys, and where are the busy nickel-in-the-slot machines and shameless smokers in the street-cars? where are the sellers of lottery tickets, where the horse-races and the open gambling? it was my fortune to be re-elected for eight years. sometimes i am impressed by how little i seem to have individually accomplished in this long period of time. one effect of experience is to modify one's expectations. it is not nearly so easy to accomplish things as one who has not tried is apt to imagine. reforming is not an easy process. inertia is something really to be overcome, and one is often surprised to find how obstinate majorities can be. initiative is a rare faculty and an average legislator must be content to follow. one can render good service sometimes by what he prevents. again, he may finally fail in some good purpose through no fault of his own, and yet win something even in losing. early in my term i was convinced that one thing that ought to be changed was our absurd liquor license. we had by far the lowest tax of any city in the union, and naturally had the largest number of saloons. i tried to have the license raised from eighty-four dollars to one thousand dollars, hoping to reduce our twenty-four hundred saloons. i almost succeeded. when i failed the liquor interest was so frightened at its narrow escape that it led the people to adopt a five-hundred-dollar substitute. i was led to undertake the correction of grave abuses and confusion in the naming of the city streets. the post-office authorities were greatly hampered in the mail delivery by the duplicate use of names. the dignified word "avenue" had been conferred on many alleys. a commission worked diligently and efficiently. one set of numbered streets was eliminated. the names of men who had figured in the history of the city were given to streets bearing their initials. anza, balboa, and cabrillo gave meaning to a, b, and c. we gave columbus an avenue, lincoln a "way," and substituted for east street the original name of the waterfront, "the embarcadero." in all we made more than four hundred changes and corrections. there were occasional humorous incidents connected with this task. there were opposition and prejudice against names offered. some one proposed a "st. francis boulevard." an apparently intelligent man asked why we wanted to perpetuate the name of "that old pirate." i asked, "who do you think we have in mind?" he replied, "i suppose you would honor sir francis drake." he seemed never to have heard of saint francis of assisi. it was predicted that the taylor administration with its excellent record would be continued, but at the end of two years it went down to defeat and the workingmen's party, with p.h. mccarthy as mayor, gained strong control. for two years, as a minority member, i enjoyed a different but interesting experience. it involved some fighting and preventive effort; but i found that if one fought fairly he was accorded consideration and opportunity. i introduced a charter amendment that seemed very desirable, and it found favor. the charter prescribed a two-year term for eighteen supervisors and their election each alternate year. under the provision it was possible to have every member without experience. by making the term four years and electing nine members every other year experience was assured, and the ballot would be half the length, a great advantage. it had seemed wise to me to allow the term of the mayor to remain two years, but the friends of mayor mccarthy were so confident of his re-election that they insisted on a four-year term. as so amended the matter went to the people and was adopted. at the following election mayor james rolph, jr., was elected for four years, two of which were an unintentional gift of his political opponents. i served for four years under the energetic rolph, and they were fruitful ones. most of the plans inaugurated by the taylor board were carried out, and materially the city made great strides. the exposition was a revelation of what was possible, and of the city hall and the civic center we may well be proud. some of my supervisorial experiences were trying and some were amusing. discussion was often relieved by rare bits of eloquence and surprising use of language. pronunciation was frequently original and unprecedented. amazing ignorance was unconcealed and the gift of gab was unrestrained. nothing quite equaled in fatal facility a progress report made by a former member soon after his debut: "we think we shall soon be able to bring chaos out of the present disorder, now existing." on one of our trips of investigation the city engineer had remarked on the watershed. one of the members later cornered him and asked "where is the watershed?" expecting to be shown a building that had escaped his attention. a pleasant episode of official duty early in rolph's term was an assignment to represent the city at a national municipal congress at los angeles. we were called upon, in connection with a study of municipal art, to make an exhibit of objects of beauty or ornament presented to the city by its citizens. we felt that san francisco had been kindly dealt with, but were surprised at the extent and variety of the gifts. enlarged sepia photographs of structures, monuments, bronzes, statuary, and memorials of all kinds were gathered and framed uniformly. there were very many, and they reflected great credit and taste. properly inscribed, they filled a large room in los angeles and attracted much attention. interest was enhanced by the cleverness of the young woman in charge. the general title of the collection was "objects of art presented by its citizens to the city of san francisco." she left a space and over a conspicuous panel printed the inscription "objects of art presented by its citizens to the city of los angeles." the panel was empty. the ordinarily proud city had nothing to show. moses at pisgah gazed upon the land he was not to enter. my pisgah was reached at the end of 1916. my halls of service were temporary. the new city hall was not occupied until just after i had found my political moab; the pleasure of sitting in a hall which is pronounced the most beautiful in america was not for me. as i look back upon varied public service, i am not clear as to its value; but i do not regret having tried to do my part. my practical creed was never to seek and never to decline opportunity to serve. i feel that the effort to do what i was able to do hardly justified itself; but it always seemed worth trying, and i do not hold myself responsible for results. i am told that in parts of california infinitesimal diatoms form deposits five thousand feet in thickness. if we have but little to give we cannot afford not to give it. chapter viii an investment on the morning of october 18, 1850, there appeared in san francisco's morning paper the following notice: religious intelligence there will be religious services (unitarian) on sunday morning next, october 20th, at simmons' athenaeum hall. entrance on commercial and sacramento streets. a discourse will be preached by rev. charles a. farley. san francisco at this time was a community very unlike any known to history. two years before it is said to have numbered eight hundred souls, and two years before that about two hundred. during the year 1849, perhaps thirty thousand men had come from all over the world, of whom many went to the mines. the directory of that year contained twenty-five hundred names. by october, 1850, the population may have been twenty thousand. they were scattered thinly over a hilly and rough peninsula, chaparral-covered but for drifting sand and with few habitable valleys. from pacific to california streets and from dupont to the bay was the beginning of the city's business. a few streets were graded and planked. clay street stretched up to stockton. to the south mountains of sand filled the present market street, and protected by them nestled happy valley, reaching from first to third streets and beyond mission. in 1849 it was a city of tents. wharves were pushing out into the bay. long wharf (commercial street) reached deep water about where drumm street now crosses it. among the motley argonauts were a goodly number of new englanders, especially from boston and maine. naturally some of them were unitarians. it seems striking that so many of them were interested in holding services. they had all left "home" within a year or so, and most of them expected to go back within two years with their respective fortunes. when it was learned that a real unitarian minister was among them, they arranged for a service. the halls of the period were west of kearny street in sacramento and california. they secured the athenaeum and gave notice in the _alta california_. it is significant that the day the notice appeared proved to be historical. the steamer "oregon" was due, and it was hoped she would bring the news of favorable action by congress on the application of california to be admitted into the union. when in the early forenoon the steamer, profusely decorated with bunting, rounded clark's point assurance was given, and by the time she landed at commercial and drumm the town was wild with excitement. [illustration: thomas starr king. san francisco, 1860-1864] eastern papers sold readily at a dollar a copy. all day and night impromptu celebrations continued. unnumbered silk hats (commonly worn by professional men and leading merchants) were demolished and champagne flowed freely. it should be remembered that thirty-nine days had elapsed since the actual admission, but none here had known it. the pilgrim yankees must have felt like going to church now that california was a part of the union and that another free state had been born. at any rate, the service conducted by rev. charles a. farley was voted a great success. one man had brought a service-book and another a hymnbook. four of the audience volunteered to lead the singing, while another played an accompaniment on the violin. after the services twenty-five men remained to talk things over, and arranged to continue services from week to week. on november 17, 1850, "the first unitarian church of san francisco" was organized, captain frederick w. macondray being made the first moderator. mr. farley returned to new england in april, 1851, and services were suspended. then occurred two very serious fires, disorganizing conditions and compelling postponement. it was more than a year before an attempt was made to call another minister. in may, 1852, rev. joseph harrington was invited to take charge of the church. he came in august and began services under great promise in the united states district court building. a few weeks later he was taken alarmingly ill, and died on november 2d. it was a sad blow, but the society withstood it calmly and voted to complete the building it had begun in stockton street, near sacramento. rev. frederic t. gray, of bulfinch street chapel, boston, under a leave of absence for a year, came to california and dedicated the church on july 1, 1853. this was the beginning of continuous church services. on the following sunday, pilgrim sunday-school was organized. mr. gray, a kind and gentle soul, rendered good service in organizing the activities of the church. he was succeeded by rev. rufus p. cutler, of portland, maine, a refined, scholarly man, who served for nearly five years. he resigned and sailed for new york in june, 1859. during his term the sunday-school prospered under the charge of samuel l. lloyd. rev. j.a. buckingham filled the pulpit for ten months preceding april 28, 1860, when thomas starr king arrived. the next day mr. king faced a congregation that crowded the church to overflowing and won the warm and enthusiastic regard of all, including many new adherents. with a winning personality, eloquent and brilliant, he was extraordinarily attractive as a preacher and as a man. he had great gifts and he was profoundly in earnest--a kindly, friendly, loving soul. in 1861 i planned to pass through the city on sunday with the possibility of hearing him. the church was crowded. i missed no word of his wonderful voice. he looked almost boyish, but his eyes and his bearing proclaimed him a man, and his word was thrilling. i heard him twice and went to my distant home with a blessed memory and an enlarged ideal of the power of a preacher. few who heard him still survive, but a woman of ninety-three years who loves him well vividly recalls his second service that led to a friendship that lasted all his life. in his first year he accomplished wonders for the church. he had felt on coming that in a year he should return to his devoted people in the hollis street church of boston. but when fort sumter was fired upon he saw clearly his appointed place. he threw himself into the struggle to hold california in the union. he lectured and preached everywhere, stimulating patriotism and loyalty. he became a great national leader and the most influential person on the pacific coast. he turned california from a doubtful state to one of solid loyalty. secession defeated, he accomplished wonders for the sanitary commission. a large part of 1863 he gave to the building of the beautiful church in geary street near stockton. it was dedicated in january, 1864. he preached in it but seven sundays, when he was attacked with a malady which in these days is not considered serious but from which he died on march 4th, confirming a premonition that he would not live to the age of forty. he was very deeply mourned. it was regarded a calamity to the entire community. to the church and the denomination the loss seemed irreparable. to dr. henry w. bellows, of new york, the acknowledged unitarian leader, was entrusted the selection of the one to fill the vacant pulpit. he knew the available men and did not hesitate. he notified horatio stebbins, of portland, maine, that he was called by the great disaster to give up the parish he loved and was satisfied to serve and take the post of the fallen leader on the distant shore. dr. bellows at once came to san francisco to comfort the bereaved church and to prepare the way for mr. stebbins, who in the meantime went to new york to minister to dr. bellows' people in his absence. it was during the brief and brilliant ministry of dr. bellows that good fortune brought me to san francisco. dr. bellows was a most attractive preacher, persuasive and eloquent. his word and his manner were so far in advance of anything to which i was accustomed that they came as a revelation of power and beauty. i was entranced, and a new world of thought and feeling opened before me. life itself took on a new meaning, and i realized the privilege offered in such a church home. i joined without delay, and my connection has been uninterrupted from that day to this. for over fifty-seven years i have missed few opportunities to profit by its services. i speak of it not in any spirit of boasting, but in profound gratitude. physical disability and absence from the city have both been rare. in the absence of reasons i have never felt like offering excuses. early in september, horatio stebbins and family arrived from new york, and dr. bellows returned to his own church. the installation of the successor of starr king was an impressive event. the church building that had been erected by and for king was a beautiful and commodious building, but it would not hold all the people that sought to attend the installation of the daring man who came to take up the great work laid down by the preacher-patriot. he was well received, and a feeling of relief was manifest. the church was still in strong hands and the traditions would be maintained. on september 9th dr. stebbins stood modestly but resolutely in the pulpit so sanctified by the memory of king. few men have faced sharper trials and met them with more serenity and apparent lack of consciousness. it was not because of self-confidence or of failure to recognize what was before him. he knew very well what was implied in following such a man as starr king, but he was so little concerned with anything so comparatively unimportant as self-interest or so unessential as personal success that he was unruffled and calm. he indulged in no illusion of filling mr. king's place. he stood on his own feet to make his own place, and to do his own work in his own way, with such results as came, and he was undisturbed. toward the end of his life he spoke of always having preached from the level of his own mind. it was always true of him. he never strained for effect, or seemed unduly concerned for results. in one of his prayers he expresses his deep philosophy of life: "help us, each one in his place, in the place which is providentially allotted to us in life, to act well our part, with consecrated will, with pure affection, with simplicity of heart--to do our duty, and to leave the rest to god." it was wholly in that spirit that dr. stebbins took up the succession of thomas starr king. personally, i was very glad to renew my early admiration for mr. stebbins, who had chosen his first parish at fitchburg, adjoining my native town, and had always attracted me when he came to exchange with our minister. he was a strong, original, manly character, with great endowments of mind and heart. he was to enjoy a remarkable ministry of over thirty-five years and endear himself to all who knew him. he was a great preacher and a great man. he inspired confidence, and was broad and generous. he served the community as well as his church, being especially influential in promoting the interests of education. he was a kindly and helpful man, and he was not burdened by his large duties and responsibilities, he was never hurried or harassed. he steadily pursued his placid way and built up a really great influence. he was, above all else, an inspirer of steadfast faith. with a great capacity for friendship, he was very generous in it, and was indulgent in judgment of those he liked. i was a raw and ignorant young man, but he opened his great heart to me and treated me like an equal. twenty years difference in years seemed no barrier. he was fond of companionship in his travels, and i often accompanied him as he was called up and down the coast. in 1886 i went to the boston may meeting in his company and found delight in both him and it. he was a good traveler, enjoying the change of scene and the contact with all sorts of people. he was courteous and friendly with strangers, meeting them on their own ground with sympathy and understanding. in his own home he was especially happy, and it was a great privilege to share his table-talk and hospitality, for he had a great fund of kindly humor and his speech was bright with homely metaphor and apt allusions. not only was he a great preacher, he was a leader, an inspirer, and a provoker of good. what it meant to fall under the influence of such a man cannot be told. supplementing the blessing was the association with a number of the best of men among the church adherents. hardly second to the great and unearned friendship of dr. stebbins was that of horace davis, ten years my senior, and very close to dr. stebbins in every way. he had been connected with the church almost from the first and was a firm friend of starr king. like dr. stebbins, he was a graduate of harvard. scholarly, and also able in business, he typified sound judgment and common sense, was conservative by nature, but fresh and vigorous of mind. he was active in the sunday-school. we also were associated in club life and as fellow directors of the lick school. our friendship was uninterrupted for more than fifty years. i had great regard for mrs. davis and many happy hours were passed in their home. her interpretation of beethoven was in my experience unequaled. it is impossible even to mention the many men of character and conscience who were a helpful influence to me in my happy church life. captain levi stevens was very good to me; c. adolphe low was one of the best men i ever knew; i had unbounded respect for horatio frost; dr. henry gibbons was very dear to me; and charles r. bishop i could not but love. these few represent a host of noble associates. i would i could mention more of them. [illustration: horatio stebbins. san francisco, 1864-1900] we all greatly enjoyed the meetings of a shakespeare club that was sustained for more than twelve consecutive years among congenial friends in the church. we read half a play every other week, devoting the latter part of the evening to impromptu charades, in which we were utterly regardless of dignity and became quite expert. at our annual picnics we joined in the enjoyment of the children. i recall my surprise and chagrin at having challenged mr. davis to a footrace at belmont one year, giving him distance as an age handicap, and finding that i had overestimated the advantage of ten years difference. in 1890 we established the unitarian club of california. mr. davis was the first president. for seventeen years it was vigorous and prosperous. we enjoyed a good waiting-list and twice raised the limit of membership numbers. it was then the only forum in the city for the discussion of subjects of public interest. many distinguished visitors were entertained. booker t. washington was greeted by a large audience and so were susan b. anthony and anna h. shaw. as time passed, other organizations afforded opportunity for discussion, and numerous less formal church clubs accomplished its purpose in a simpler manner. a feature of strength in our church has been the william and alice hinckley fund, established in 1879 by the will of captain william c. hinckley, under the counsel and advice of dr. stebbins. his wife had died, he had no children, and he wanted his property to be helpful to others. he appointed the then church trustees his executors and the trustees of an endowment to promote human beneficence and charity, especially commending the aged and lonely and the interests of education and religion. shortly after coming to san francisco, in 1850, he had bought a lot in bush street for sixty dollars. at the time of his death it was under lease to the california theater company at a ground rent of a thousand dollars a month. after long litigation, the will was sustained as to $52,000, the full proportion of his estate allowed for charity. i have served as secretary of the trust fund for forty years. i am also surviving trustee for a library fund of $10,000 and another charity fund of $5000. these three funds have earned in interest more than $105,000. we have disbursed for the purposes indicated $92,000, and have now on hand as capital more than $80,000, the interest on which we disburse annually. it has been my fortune to outlive the eight trustees appointed with me, and, also, eight since appointed to fill vacancies caused by death or removal. we worshiped in the geary and stockton church for more than twenty-three years, and then concluded it was time to move from a business district to a residential section. we sold the building with the lot that had cost $16,000 for $120,000, and at the corner of franklin and geary streets built a fine church, costing, lot included, $91,000. during construction we met in the synagogue emanu-el, and the sunday-school was hospitably entertained in the first congregational church, which circumstances indicate the friendly relations maintained by our minister, who never arraigned or engaged in controversy with any other household of faith. in 1889 the new church was dedicated, dr. hedge writing a fine hymn for the occasion. dr. stebbins generally enjoyed robust health, but in 1899 he was admonished that he must lay down the work he loved so well. in september of that year, at his own request, he was relieved from active service and elected minister emeritus. subsequently his health improved, and frequently he was able to preach; but in 1900, with his family, he returned to new england, where he lived with a good degree of comfort at cambridge, near his children, occasionally preaching, but gradually failing in health. he suffered severely at the last, and found final release on april 8, 1901. of the later history of the church i need say little. recollections root in the remote. for thirteen years we were served by rev. bradford leavitt, and for the past eight rev. caleb s.s. dutton has been our leader. the noble traditions of the past have been followed and the place in the community has been fully maintained. the church has been a steady and powerful influence for good, and many a life has been quickened, strengthened, and made more abundant through its ministry. to me it has been a never-failing source of satisfaction and happiness. i would also bear brief testimony to the sunday-school. all my life i had attended sunday-school,--the best available. i remember well the school in leominster and the stories told by deacon cotton and others. i remember nay teacher in boston. coming to california i took what i could get, first the little methodist gathering and then the more respectable presbyterian. when in early manhood i came to san francisco i entered the bible-class at once. the school was large and vigorous. the attendance was around four hundred. lloyd baldwin, an able lawyer, was my first teacher, and a good one, but very soon i was induced to take a class of small boys. they were very bright and too quick for a youth from the country. one sunday we chanced to have as a lesson the healing of the daughter of jairus. in the gospel account the final word was the injunction: "jesus charged them that they tell no man." in all innocence i asked the somewhat leading question: "what did jesus charge them?" quick as a flash one of the boys answered, "he didn't charge them a cent." it was so pat and so unexpected that i could not protest at the levity. in the sunday-school library i met charles w. wendte, then a clerk in the bank of california. he had been befriended and inspired by starr king and soon turned from business and studied for the ministry. he is now a d.d. and has a long record of valuable service. in 1869 j.c.a. hill became superintendent of the school and appointed me his assistant. four years later he returned to new hampshire, much to our regret, and i succeeded him. with the exception of the two years that rev. william g. eliot, jr., was assistant to dr. stebbins, and took charge of the school, i served until 1914. very many pleasant memories cluster around my connection with the sunday-school. the friendships made have been enduring. the beautiful young lives lured me on in service that never grew monotonous, and i have been paid over and over again for all i ever gave. it is a great satisfaction to feel that five of our nine church trustees are graduates of the sunday-school. i attended my first christmas festival of the sunday-school in platt's hall in 1864, and i have never missed one since. fifty-seven consecutive celebrations incidentally testify to unbroken health. in looking back on what i have gained from the church, i am impressed with the fact that the association with the fine men and women attending it has been a very important part of my life. good friends are of untold value, and inspiration is not confined to the spoken words of the minister. especially am i impressed with the stream of community helpfulness that has flowed steadily from our church all these years. i wish i dared to refer to individual instances--but they are too many. finally, i must content myself with acknowledgment of great obligation for all i have profited from and enjoyed in church affiliation. i cannot conceive how any man can afford not to avail himself of the privilege of standing by some church. as an investment i am assured that nothing pays better and surer interest. returns are liberal, dividends are never passed, and capital never depreciates. chapter ix by-product in the conduct of life we select, or have assigned, certain measures of activity upon which we rely for our support and the self-respect that follows the doing of our part. this we call our business, and if we are wise we attend to it and prosecute it with due diligence and application. but it is not all of life, and its claim is not the only call that is made upon us. exclusive interest and devotion to it may end in the sort of success that robs us of the highest value, so that, however much substance we accumulate, we are failures as men. on the other hand, we take risks if we slight its just demands and scatter our powers on miscellaneous interests. whatever its value, every man, in addition to what he primarily produces, turns out some by-product. if it is worth anything, he may be thankful and add the amount to total income. the extracts of which this chapter is composed are selections from the editorial columns of _the pacific unitarian_, submitted not as exhibits in the case of achievement, but as indicating the convictions i have formed on the way of life. the beginning thirty years ago, a fairly active sunday-school was instigated to publish a monthly journal, nominally for all the organizations of the first unitarian society. it was not expected to be of great benefit, except to the school. after a year and a half it was adopted by the conference, its modest name, _the guidon_, being expanded to _the pacific unitarian_. its number of pages was increased to thirty-two. probably the most remarkable circumstance connected with it is that it has lived. the fact that it has enjoyed the opportunity of choice between life and death is quite surprising. other journals have had to die. it has never been easy to live, or absolutely necessary to die. anyhow, we have the thirty years of life to look back upon and take satisfaction in. we are grateful for friends far and near, and generous commendation has been pleasant to receive, whether it has been justified or not. christianity we realize more and more truly that christianity in its spirit is a very different thing from christianity as a theological structure formulated by the makers of the creed. the amazing thing is that such a misconception of the message of jesus as has generally prevailed has given us a civilization so creditable. the early councils were incapable of being led by the spirit of jesus. they were prejudiced by their preconceptions of the character of god and the nature of religion, and evolved a scheme of salvation to fit past conceptions instead of accepting as real the love of god and of man that jesus added to the religion of his fathers. even the christianity they fashioned has not been fairly tried. the christianity that jesus proclaimed, a call to trust, to love, and spiritual life, has hardly been tried at all. we seem just to be awakening to what it is, and to its application to the art of living. the prodigal's father what a difference in the thought of god and in the joy of life would have followed had the hearers of jesus given the parable of the prodigal son its full significance! they would then have found in the happy, loving father and his full forgiveness of the son who "came to himself" a type of the heavenly father. the shadow of the olden fear still persists, chilling human life. we do not trust the love of god and bear life's burdens with cheerful courage. from lurking fear of the jealous king of hebrew tradition, we are even afraid to be happy when we might. we fail of faith in the reality of god's love. we forget the robe, the ring, the overflowing joy of the earthly father, not earned by the prodigal, but given from complete love. the thing best worth while is faith in the love of god. if it be lacking, perhaps the best way to gain it is to assume it--to act on the basis of its existence, putting aside our doubts, and giving whatever love we have in our own hearts a chance to strengthen. whitsuntide whitsuntide is a church season that too often fails to receive due acknowledgment or recognition. it is, in observance, a poor third. christmas is largely diverted to a giving of superfluous gifts, and is popular from the wide-felt interest in the happiness of children. easter we can not forget, for it celebrates the rising or the risen life, and is marked by the fresh beauty of a beautiful world. to appreciate the pentecostal season and to care for spiritual inspiration appeals to the few, and to those few on a higher plane. but of all that religion has to give, it represents the highest gift, and it has to do with the world's greatest need. spiritual life is the most precious of possessions, the highest attainment of humanity. happy are we if our better spirit be quickened, if our hearts be lifted up, and our wills be strengthened, that worthy life may bring peace and joy! why the church? we cannot deny the truth that the things of the spirit are of first importance; but when it comes to living we seem to belie our convictions. we live as though we thought the spirit a doubtful matter. there are those who take pride in calling themselves materialists, but they are hardly as hopeless as those who are so indifferent that they have no opinion whatever. the man who thinks and cares is quite apt to come out right, but the mindless animal who only enjoys develops no recognizable soul. the seeking first is not in derogation of any true manhood. it is the full life, the whole life, that we are to compass--but life subordinated and controlled by the spirit, the spirit that recognizes the distinction between right and wrong. those who choose the right and bend all else to it, are of the kingdom. that is all that righteousness means. the church has no monopoly of righteousness, but it is of immense importance in cultivating the religious spirit, and cannot safely be dispensed with. and so it must be strongly supported and made efficient. to those who know true values this is an investment that cannot safely be ignored. to it we should give generously of our money, but equally generously we should give ourselves--our presence, our co-operation, our loyal support of our leaders, our constant effort to hold it to high ideals. if it is to give life, it must have life, and whatever life it has is the aggregation of our collected and consecrated lives. the church called christian cannot win by holding its old trenches. it must advance to the line that stretches from our little fortress where the flag of reason and religion defiantly floats. shall we retreat? no; it is for us to hold the fort at all costs, not for our sake alone, but for the army of humanity. we believe in god and we believe in man. as president eliot lately put it, "we believe in the principles of a simple, practical, and democratic religion. we are meeting ignorance, not with contempt, but with knowledge. we are meeting dogmatism and superstition, not with impatience, but with truth. we are meeting sin and injustice, not with abuse, but with good-will and high idealism. we have the right message for our time." to the church that seems to us to most nearly realize these ideals, it is our bounden duty, and should be our glad privilege, to present ourselves a reasonable sacrifice, that we may do our part in bringing in god's kingdom. the church and progress reforms depend upon reformed men. perhaps the greater need is _formed_ men. as we survey the majority of men around us, they seem largely unconscious of what they really are and of the privileges and responsibilities that appertain to manhood. it must be that men are better, and more, than they seem. visit a baseball game or a movie. the crowds seem wholly irresponsible, and, except in the pleasure or excitement sought, utterly uninterested--apparently without principle or purpose. and yet, when called upon to serve their country, men will go to the ends of the world, and place no limit on the sacrifice freely made for the general good. they are better than they seem, and in ways we know not of possess a sense of justice and a love of right which they found we know not where. this is encouraging, but must not relieve us from doing our utmost to inform more fully every son of man of his great opportunity and responsibility, and also of inspiring him to use his life to his and our best advantage. it is so evident that world-welfare rests upon individual well-being that we cannot escape the conviction that the best thing any one of us can do is to help to make our fellow-men better and happier. and the part of wisdom is to organize for the power we gain. it would seem that the church should be the most effective agency for promoting individual worth and consequent happiness. is it?--and if not, why not? we are apt to say we live in a new age, forgetting how little change of form matters. human nature, with its instincts and desires, love of self, and the general enjoyment of, and through, possessions, is so little changed that differences in condition and circumstance have only a modifying influence. it is man, the man within, that counts--not his clothing. but it is true that human institutions do undergo great changes, and nothing intimate and important has suffered greater changes than the church. religion itself, vastly more important than the church, has changed and is changing. martineau's illuminating classification helps us to realize this. the first expression, the pagan, was based on fear and the idea of winning favor by purchase, giving something to god--it might be burnt-offerings--for his good-will. then came the jewish, the ethical, the thought of doing, rather than giving. righteousness earns god's favor. the higher conception blossomed into christianity with its trust in the love of god and of serving him and fellow-man, self-sacrifice being the highest expression of harmony with him. following this general advance from giving and doing to being, we have the altar, the temple, and the church. the genuine unitarian unitarians owe first allegiance to the kingdom of god on earth. it is of little consequence through which door it is entered. if any other is nearer or broader or more attractive, use it. we offer ours for those who prefer it or who find others not to be entered without a password they cannot pronounce. a unitarian who merely says he is one thereby gives no satisfactory evidence that he is. there are individuals who seem to think they are unitarians because they are nothing else. they regard unitarianism as the next to nothing in its requirement of belief, losing all sight of the fact that even one real belief exceeds, and may be more difficult than, many half-beliefs and hundreds of make-beliefs, and that a unitarian church made up of those who have discarded all they thought they believed and became unitarian for its bald negations is to be pitied and must be patiently nurtured. as regards our responsibility for the growth of unitarianism, we surely cannot fail to recognize it, but it should be clearly qualified by our recognition of the object in view. to regard unitarianism as an end to be pursued for its own sake does not seem compatible with its own true spirit. the church itself is an instrument, and we are in right relation when we give the unitarian church our preference, as, to us, the best instrument, while we hold first allegiance to the idealism for which it stands and to the goodness it seeks to unfold in the heart of man. nor would we seek growth at any sacrifice of high quality or purpose. we do not expect large numbers and great popular applause. unitarians are pioneers, and too independent and discriminating to stir the feverish pulse of the multitude. we seek the heights, and it is our concern to reach them and hold them for the few that struggle up. loaves and fishes we have not to offer, nor can we promise wealth and health as an attractive by-product of righteousness. there is no better service that anyone can render than to implant higher ideals in the breast of another. in the matter of religious education as sought through the ordinary sunday-school, no one who has had any practical experience has ever found it easy, or kept free from doubt as to its being sufficiently efficacious to make it worth while. but the problem is to recognize the difficulty, face all doubts, and stand by. perfect teachers are impossible, satisfactory ones are not always to be had. if they are not dissatisfied with themselves, they are almost always unfit. but as between doing the best you can and doing nothing at all, it would seem that self-respect and a sense of deep responsibility would leave no recourse. there is no place for a shirker or a quitter in a real unitarian church. have we done our work? now and then some indifferent unitarian expresses doubt as to the future value of our particular church. there are those who say, "why should we keep it up? have we not done our work?" we have seen our original protests largely effective, and rejoice that more liberal and generous, and, we believe, more just and true, religious convictions prevail; but have we been constructive and strengthening? and until we have made our own churches fully free and fruitful in spiritual life are we absolved from the call to service? have we earned our discharge from the army of life? shall we be deserters or slackers! we ask no man to fight with us if his loyalty to any other corps is stronger, but to fight _somewhere_--to do his part for god and his fellow-men wherever he can do the most effective service. we are not unitarians first. we are not even christians first. we are human first, seeking the best in humanity, in our appointed place in a civilization that finds its greatest inspiration in the leadership of jesus of nazareth, we are next christians, and we are finally unitarians because for us their point of view embodies most truly the spirit that animated his teachings and his life. and so we appeal to those who really, not nominally, are of our household of faith to feel that it is best worth while to stand by the nearest church and to support it generously, that it may do its part in soul service and world welfare, and also to encourage it and give it more abundant life through attendance and participation in its activities. of first importance it is well for each soul, in the multiplicity of questions besetting him, to deliberately face them and determine what is of first importance. aspects are so diverse and bewildering that if we do not reduce them to some order, giving them rank, we are in danger of becoming purposeless drifters on the sea of life. what is the most important thing in life? what shall be our aim and purpose, as we look about us, observing our fellows--what they have accomplished and what they are--what commends itself to us as best worth while? and what course can we pursue to get the most and the best out of it? we find a world of infinite diversity in conditions, in aims, and in results. one of the most striking differences is in regard to what we call success. we are prone to conclude that he who is prosperous in the matter of having is the successful man. possessing is the proof of efficiency, and he who possesses little has measurably failed in the main object of life. this conclusion has a measure of truth, but is not wholly true. we see not a few instances of utter poverty of life concurrent with great possessions, and are forced to conclude that the real value of possessions is dependent on what they bring us. merely to have is of no advantage. indeed it may be a burden or a curse. happiness is at least desirable, but it has no necessary connection with property accumulations. they may make it possible, but they never insure it. possession may be an incident, but seldom is a cause. if we follow this thought further we shall find that in the accepted methods of accumulation arise many of the causes of current misery and unhappiness. generally he who is said to succeed pays a price, and a large one, for the prosperity he achieves. to be conspicuously successful commonly involves a degree of selfishness that is almost surely damaging. often injustice and unfairness are added to the train of factors, and dishonesty and absence of decency give the finishing touch. every dollar tinged with doubt is a moral liability. if it has been wrested from its rightful owner through fraud or force of opportunity, it would better be at the bottom of the sea. the best in life the power and practical irresponsibility of money have ruined many a man, and the misuse of wealth has left unused immense opportunity for good. it has coined a word that has become abhorrent, and "capitalism" has, in the minds of the suspicious, become the all-sufficient cause of everything deplorable in human conditions. no true-hearted observer can conclude that the first consideration of life should be wealth. on the other hand, no right-minded person will ignore the desirability and the duty of judiciously providing the means for a reasonable degree of comfort and self-respect, with a surplus for the furtherance of human welfare in general, and the relief of misfortune and suffering. thrift is a virtue; greed is a vice. reasonable possession is a commendable and necessary object. the unrestrained avarice that today is making cowards of us all is an unmeasured curse, a world-wide disgrace that threatens civilization. in considering ends of life we cannot ignore those who consider happiness as adequate. perhaps there are few who formulate this, but there are many who seem to give it practical assent. they apparently conform their lives to this butterfly estimate, and, in the absence of any other purpose, rest satisfied. happiness is indeed a desirable condition, and in the highest sense, where it borders on blessedness, may be fairly termed "the end and aim of being." but on the lower stretches of the senses, where it becomes mere enjoyment or pleasure, largely concerned with amusement and self-indulgence of various sorts, it becomes parasitic, robbing life of its strength and flavor and preventing its development and full growth. it is insidious in its deterioration and omnivorous in its appetite. it tends to habits that undermine and to the appropriation of a preponderating share of the valueless things of life. the danger is in the unrestrained appetite, in intemperance that becomes habit. pleasure is exhausting of both purse and mind. we naturally crave pleasant experiences, and we need a certain amount of relaxation. the danger is in overindulgence and indigestion resulting in spiritual invalidism. let us take life sanely, accepting pleasures gratefully but moderately. but what _is_ best in life? why, life itself. life is opportunity. here it is, around us, offered to us. we are free to take what we can or what we like. we have the great privilege of choice, and life's ministry to us depends on what we take and what we leave. we are providentially assigned our place, whatever it is, but in no fixed sense of its being final and unalterable. the only obligation implied is that of acceptance until it can be bettered. our moral responsibility is limited to our opportunity, and the vital question is the use we make of it. the great fact of life is that we are spiritual beings. religion has to do with soul existence and is the field of its development. it is concerned primarily with being and secondly with doing. it is righteousness inspired by love. it is recognition of our responsibilities to do god's will. hence the best life is that which accepts life as opportunity, and faithfully, happily seeks to make the most of it. it seeks to follow the right, and to do the best it can, in any circumstances. it accepts all that life offers, enjoying in moderation its varied gifts, but in restraint of self-indulgence, and with kindly consideration of others. it subordinates its impulses to the apprehended will of god, bears trials with fortitude, and trusts eternal good. overcoming obstacles one of the most impressive sights in the natural world is the difficulties resisted and overcome by a tree in its struggle for life. on the very summit of the sentinel dome, over eight thousand feet above sea-level, there is rooted in the apparently solid granite a lone pine two feet in diameter. it is not tall, for its struggle with the wind and snow has checked its aspirations, but it is sturdy and vigorous, while the wonder is that it ever established and maintained life at all. where it gains its nourishment is not apparent. disintegrated granite seems a hard diet, but it suffices, for the determined tree makes the best of the opportunities offered. like examples abound wherever a crevice holds any soil whatever. in a niche of el capitan, more than a thousand feet from the valley's floor, grows a tree a hundred feet high. a strong glass shows a single tree on the crest of half dome. such persistence is significant, and it enforces a lesson we very much need. reason should not be behind instinct in making the most of life. while man is less rigidly conditioned and may modify his environment, he, too, may nourish his life by using to the full whatever nutriment is offered. lincoln has been characterized as a man who made the most of his life. perhaps his greatness consisted mostly in that. we are inclined to blame conditions and circumstances for failures that result from our lack of effort. we lack in persistence, we resent disparity in the distribution of talents, we blink at responsibility, and are slothful and trifling. our life is a failure from lack of will. who are we that we should complain that life is hard, or conclude that it is not better so? why do we covet other opportunities instead of doing the best with those we have? what is the glory of life but to accept it with such satisfaction as we can command, to enjoy what we have a right to, and to use all it offers for its upbuilding and fulfillment? being right how evident it is that much more than good intentions is needed in one who would either maintain self-respect or be of any use in his daily life! it is not easy to be good, but it is often less easy to be right. it involves an understanding that presupposes both ability and effort. intelligence, thinking, often studious consideration, are necessary to give a working hypothesis of what is best. it is seldom that anything is so simple that without careful thought we can be sure that one course is right and another wrong. perhaps, after we have weighed all that is ponderable, we can only determine which seems the better course of action. being good may help our judgment. doing right is the will of god. patriotism "let us have faith that right makes might, and in that faith let us to the end dare to do our duty as we understand it." abraham lincoln had a marvelous aptitude for condensed statement, and in this compact sentence from his cooper union address expresses the very essence of the appeal that is made to us today. we can find no more fundamental slogan and no nobler one. whatever the circumstances presented and whatever the immediate result will be, we are to dare to do our duty as we understand it. and we are so to dare and so to do in complete faith that right makes might and in utter disregard of fear that might may triumph. the only basis of true courage is faith, and our trust must be in right, in good, in god. we live in a republic that sustains itself through the acceptance by all of the will of the majority, and to talk of despotism whenever the authority necessary for efficiency is exercised, and that with practically unanimous concurrence, is wholly unreasonable. a man who cannot yield allegiance to the country in which he lives should either be silent and inactive or go to some country where his sympathy corresponds with his loyalty. chapter x concerning persons as years increase we more and more value the personal and individual element in human life. character becomes the transcendent interest and friends are our chief assets. as i approach the end of my story of memories i feel that the most interesting feature of life has been the personal. i wish i had given more space to the people i have known. fortune has favored me with friends worth mentioning and of acquaintances, some of whom i must introduce. of horatio stebbins, the best friend and strongest influence of my life, i have tried to express my regard in a little book about to be published by the houghton mifflin company of boston. it will be procurable from our san francisco unitarian headquarters. that those who may not see it may know something of my feeling, i reprint a part of an editorial written when he died. horatio stebbins the thoughts that cluster around the memory of horatio stebbins so fill the mind that nothing else can be considered until some expression is made of them, and yet the impossibility of any adequate statement is so evident that it seems hopeless to begin. the event of his death was not unexpected. it has been imminent and threatening for years. his feebleness and the intense suffering of his later days relieve the grief that must be felt, and there springs by its side gratitude that rest and peace have come to him. and yet to those who loved him the world seems not quite the same since he has gone from it. there is an underlying feeling of something missing, of loss not to be overcome, that must be borne to the end. in my early boyhood horatio stebbins was "the preacher from fitchburg"--original in manner and matter, and impressive even to a boy. ten years passed, and our paths met in san francisco. from the day he first stood in the historic pulpit as successor of that gifted preacher and patriot, starr king, till his removal to cambridge, few opportunities for hearing him were neglected by me. his influence was a great blessing, association with him a delight, his example an inspiration, and his love the richest of undeserved treasures. dr. stebbins was ever the kindliest of men, and his friendliness and consideration were not confined to his social equals. without condescension, he always had a kind word for the humblest people. he was as gentlemanly and courteous to a hackdriver as he would be to a college president. none ever heard him speak severely or impatiently to a servant. he was considerate by nature, and patient from very largeness. he never harbored an injury, and by his generosity and apparent obliviousness or forgetfulness of the unpleasant past he often put to shame those who had wronged him. he was at times stern, and was always fearless in uttering what he felt to be the truth, whether it was to meet with favor or with disapproval from his hearers. as a friend he was loyalty itself, and for the slightest service he was deeply appreciative and grateful. he was the most charitable of men, and was not ashamed to admit that he had often been imposed upon. of his rank as a thinker and a preacher i am not a qualified judge, but he surely was great of heart and strong of mind. he was a man of profound faith, and deeply religious in a strong, manly way. he inspired others by his trust and his unquestioned belief in the reality of spiritual things. he never did anything for effect; his words fell from his lips in tones of wonderful beauty to express the thought and feeling that glowed within. noble man, great preacher, loving friend! thou art not dead, but translated to that higher life of which no doubt ever entered thy trusting mind! horace davis horace davis was born in worcester, massachusetts, on march 16, 1831. his father was john davis, who served as governor of massachusetts and as united states senator. his mother was the daughter of rev. aaron bancroft, one of the pioneers of the unitarian ministry. horace davis graduated at harvard in the class of 1849. he began the study of the law, but his eyes failed, and in 1852 he came to california to seek his fortune. he first tried the mines, starting a store at shaw's flat. when the venture failed he came to san francisco and sought any employment to be found. he began by piling lumber, but when his cousin, isaac davis, found him at it he put him aboard one of his coasting schooners as supercargo. being faithful and capable, he was sought by the pacific mail steamship company, and was for several years a good purser. he and his brother george had loaned their savings to a miller, and were forced to take over the property. mr. davis become the accepted authority on wheat and the production of flour, and enjoyed more than forty years of leadership in the business which he accidentally entered. he was always a public-spirited citizen, and in 1877 was elected to congress, serving for two terms. he proved too independent and unmanageable for the political leaders of the time and was allowed to return to private life. in 1887 he was urged to accept the presidency of the university of california, and for three years he discharged the duties of the office with credit. his interest in education was always great, and he entered with ardor and intelligence into the discharge of his duties as a trustee of the school of mechanical arts established by the will of james lick. as president of the board, he guided its course, and was responsible for the large plan for co-operation and co-ordination by which, with the wilmerding school and the lux school (of which he was also a leading trustee), a really great endowed industrial school under one administrative management has been built up in san francisco. a large part of his energy was devoted to this end, and it became the strongest desire of his life to see it firmly established. he also served for many years as a trustee for stanford university, and for a time was president of the board. to the day of his death (in july, 1916) he was active in the affairs of stanford, and was also deeply interested in the university of california. the degree of ll.d. was conferred by the university of the pacific, by harvard, and by the university of california. from his earliest residence in san francisco he was a loyal and devoted supporter of the first unitarian church and of its sunday-school. for over sixty years he had charge of the bible-class, and his influence for spiritual and practical christianity has been very great. he gave himself unsparingly for the cause of religious education, and never failed to prepare himself for his weekly ministration. for eight years he served on the board of trustees of the church and for seven years was moderator of the board. under the will of captain hinckley he was made a trustee of the william and alice hinckley fund, and for thirty-seven years took an active interest in its administration. at the time of his death he was its president. he was deeply interested in the pacific unitarian school for the ministry, and contributed munificently to its foundation and maintenance. mr. davis preserved his youth by the breadth of his sympathies. he seemed to have something in common with everyone he met; was young with the young. in his talks to college classes he was always happy, with a simplicity and directness that attracted close attention, and a sense of humor that lighted up his address. his domestic life was very happy. his first wife, the daughter of captain macondray, for many years an invalid, died in 1872. in 1875 he married edith king, the only daughter of thomas starr king, a woman of rare personal gifts, who devoted her life to his welfare and happiness. she died suddenly in 1909. mr. davis, left alone, went steadily on. his books were his constant companions and his friends were always welcome. he would not own that he was lonely. he kept occupied; he had his round of duties, attending to his affairs, and the administration of various benevolent trusts, and he had a large capacity for simple enjoyments. he read good books; he was hospitably inclined; he kept in touch with his old associates; he liked to meet them at luncheon at the university club or at the monthly dinner of the chit-chat club, which he had seldom missed in thirty-nine years of membership. he was punctilious in the preparation of his biennial papers, always giving something of interest and value. his intellectual interest was wide. he was a close student of shakespeare, and years ago printed a modest volume on the sonnets. he also published a fine study of the ministry of jesus, and a discriminating review of the american constitutions. mr. davis was a man of profound religious feeling. he said little of it, but it was a large part of his life. on his desk was a volume of dr. stebbins' prayers, the daily use of which had led to the reading again and again of the book he very deeply cherished. he was the most loyal of friends--patient, appreciative beyond deserts, kindly, and just. the influence for good of such a man is incalculable. one who makes no pretense of virtue, but simply lives uprightly as a matter of course, who is genuine and sound, who does nothing for effect, who shows simple tastes, and is not greedy for possessions, but who looks out for himself and his belongings in a prudent, self-respecting way, who takes what comes without complaint, who believes in the good and shows it by his daily course, who is never violent and desperate, but calmly tries to do his part to make his fellows happier and the world better, who trusts in god and cheerfully bears the trials that come, who holds on to life and its opportunities, without repining if he be left to walk alone, and who faces death with the confidence of a child who trusts in a father's love and care--such a man is blessed himself and is a blessing to his fellow-men. a memory of emerson in 1871 ralph waldo emerson visited california. he was accompanied by his daughter ellen, and seemed thoroughly to enjoy the new scenes and new experiences. he visited the yosemite valley and other points of interest, and was persuaded to deliver a number of lectures. his first appearance before a california audience was at the unitarian church, then in geary street near stockton, on a sunday evening, when he read his remarkable essay on "immortality," wherein he spoke of people who talk of eternity and yet do not know what to do with a day. the church was completely filled and the interest to hear him seemed so great that it was determined to secure some week-day lectures if possible. in company with horace davis, who enjoyed his acquaintance, i called on him at the occidental hotel. he was the most approachable of men--as simple and kindly in his manner as could be imagined, and putting one at ease with that happy faculty which only a true gentleman possesses. [illustration: horace davis--fifty years a friend] [illustration: harvard university when he entered] his features are familiar from the many published pictures, but no one who had not met his smiling eyes can realize the charm of his personality. his talk was delightfully genial. i asked him if his journey had been wearisome. "not at all," he replied; "i have enjoyed it all." the scenery seemed to have impressed him deeply. "when one crosses your mountains," he said, "and sees their wonderful arches, one discovers how architecture came to be invented." when asked if he could favor us with some lectures, he smiled and said: "well, my daughter thought you might want something of that kind, and put a few in my trunk, in case of an emergency." when it came to dates, it was found that he was to leave the next day for a short trip to the geysers, and it was difficult to arrange the course of three, which had been fixed upon, after his return. it was about eleven o'clock when we called. i asked him if he could give us one of the lectures that evening. he smiled and said, "oh, yes," adding, "i don't know what you can do here, but in boston we could not expect to get an audience on such short notice." we assured him that we felt confident in taking the chances on that. going at once to the office of the _evening bulletin,_ we arranged for a good local notice, and soon had a number of small boys distributing announcements in the business streets. the audience was a good one in point of numbers, and a pleased and interested one. his peculiar manner of reading a few pages, and then shuffling his papers, as though they were inextricably mixed, was embarrassing at first, but when it was found that he was not disturbed by it, and that it was not the result of an accident, but a characteristic manner of delivery, the audience withheld its sympathy and rather enjoyed the novelty and the feeling of uncertainty as to what would come next. one little incident of the lecture occasioned an admiring smile. a small bunch of flowers had been placed on the reading-desk, and by some means, in one of his shuffles, they were tipped over and fell forward to the floor. not at all disconcerted, he skipped nimbly out of the pulpit, picked up the flowers, put them back in the vase, replaced it on the desk, and went on with the lecture as though nothing had happened. he was much interested in the twenty-dollar gold pieces in which he was paid, never before having met with that form of money. his encouraging friendliness of manner quite removed any feeling that a great man's time was being wasted through one's intercourse. he gossiped pleasantly of men and things as though talking with an equal. on one occasion he seemed greatly to enjoy recounting how cleverly james russell lowell imitated alfred tennyson's reading of his own poems. over the sunday-school of our church starr king had provided a small room where he could retire and gain seclusion. it pleased emerson. he said, "i think i should enjoy a study beyond the orbit of the servant girl." he was as self-effacing a man as i ever knew, and the most agreeable to meet. after his return from his short trip he gave two or three more lectures, with a somewhat diminishing attendance. dr. stebbins remarked in explanation, "i thought the people would tire in the sockets of their wings if they attempted to follow _him_." at this distance, i can remember little that he said, but no distance of time or space can ever dim the delight i felt in meeting him, or the impression formed of a most attractive, penetrating, and inspiring personality. his kindliness and geniality were unbounded. during our arrangement of dates mr. davis smiled as he said of one suggested by mr. emerson, "that would not be convenient for mr. murdock, for it is the evening of his wedding." he did not forget it. after the lecture, a few days later, he turned to me and asked, "is she here?" when i brought my flattered wife, he chatted with her familiarly, asking where she had lived before coming to california, and placing her wholly at ease. every tone of his voice and every glance of his eye suggested the most absolute serenity. he seemed the personification of calm wisdom. nothing disturbed him, nothing depressed him. he was as serene and unruffled as a morning in june. he radiated kindliness from a heart at peace with all mankind. his gentleness of manner was an illustration of the possibility of beauty in conduct. he was wholly self-possessed--to imagine him in a passion would be impossible. his word was searching, but its power was that of the sunbeam and not of the blast. he was above all teapot tempests, a strong, tender, fearless, trustful _man_. julia ward howe julia ward howe is something more than a noble memory. she has left her impress on her time, and given a new significance to womanhood. to hear the perfect music of the voice of so cultivated a woman is something of an education, and to have learned how gracious and kindly a great nature really is, is an experience well worth cherishing. mrs. howe was wonderfully alive to a wide range of interests--many-sided and sympathetic. she could take the place of a minister and speak effectively from deep conviction and a wide experience, or talk simply and charmingly to a group of school-children. when some years later than her san francisco visit she spoke at a king's chapel meeting in boston, growing feebleness was apparent, but the same gracious spirit was undimmed. later pictures have been somewhat pathetic. we do not enjoy being reminded of mortality in those of pre-eminent spirit, but what a span of events and changes her life records, and what a part in it all she had borne! when one ponders on the inspiring effect of the battle hymn of the republic, and of the arms it nerved and the hearts it strengthened, and on the direct blows she struck for the emancipation of woman, it seems that there has been abundant answer to her prayer, "as he died to make men holy, let us die to make men free." timothy h. rearden in glancing back, i can think of no more charming man than timothy rearden. he had a most attractive personality, combining rare intelligence and kindly affection with humor and a modesty that left him almost shy. he was scholarly and brilliant, especially in literature and languages. his essays and studies in greek attracted world-acknowledgment, but at home he was known chiefly as a genial, self-effacing lawyer, not ambitious for a large practice and oblivious of position, but happy in his friends and in delving deep into whatever topic in the world of letters engaged his interest. he was born in ohio in 1839 and graduated from the cleveland high school and from kenyon college. he served in the civil war and came to california in 1866. he was a fellow-worker with bret harte in the mint, and also on the _overland monthly_, contributing "favoring female conventualism" to the first number. he was a sound lawyer, but hid with his elders until 1872, when he opened his own office. he was not a pusher, but his associates respected and loved him, so that when in 1883 the governor was called upon to appoint a judge, and, embarrassed by the number of candidates, he called upon the bar association to recommend someone, they took a vote and two-thirds of them named rearden. he served on the bench for eight years. he was a favorite member of the chit-chat club for many years and wrote many brilliant essays, a volume of which was printed in 1893. the first two he gave were "francis petrarch" and "burning sappho." among the most charming was "ballads and lyrics," which was illustrated by the equally charming singing of representative selections by mrs. ida norton, the only time in its history when the club was invaded by a woman. its outside repetition was clamored for, and as the judge found a good excuse in his position and its requirements, he loaned the paper and i had the pleasure of substituting for him. when i was a candidate for the legislature he issued a card that was a departure from political methods. it was during the time when all the names were submitted on the ballot and voters crossed off those they did not want to win. he sent his friends a neat card, as follows: charles a. murdock (_of c.a. murdock & co., 532 clay street_) is one of the republican candidates for the assembly from the tenth senatorial district if you prefer any candidate on any other ticket, scratch murdock. if you require any pledge other than that he will vote according to his honest convictions, scratch murdock. his friend, ambrose bierce, spoke of him as the most scholarly man on the pacific coast. he was surely among the most modest and affectionate. he had remarkable poetic gifts. in 1892 the thomas post of the grand army of the republic held a memorial service, and he contributed a poem beginning: "life's fevered day declines; its purple twilight falling draws length'ning shadows from the broken flanks; and from the column's head a viewless chief is calling: 'guide right; close up your ranks!'" he was ill when it was read. a week from the day of the meeting the happy, well-loved man breathed his last. john muir john muir, naturalist, enthusiast, writer, glorifier of the sierras, is held in affectionate memory the world over, but especially in california, where he was known as a delightful personality. real pleasure and a good understanding of his nature and quality await those who read of the meeting of emerson and muir in the yosemite in 1871. it is recorded in their diaries. he was a very rare and versatile man. it was my good fortune to sit by him at a dinner on his return from alaska, where he had studied its glaciers, and had incidentally been honored by having its most characteristic one named after him. he was tremendously impressed by the wonder and majesty of what he had seen, but it in no wise dimmed his enthusiasm for the beauty and glory of the sierra nevada. in speaking of the exquisite loveliness of a mountain meadow he exclaimed: "i could conceive it no punishment to be staked out for a thousand years on one of those meadows." his tales of experiences in the high sierra, where he spent days alone and unarmed, with nothing but tea and a few breadcrusts to sustain him, were most thrilling. i was afterward charmed by his sketch of an adventure with a dog called "stickeen," on one of the great alaskan glaciers, and, meeting him, urged that he make a little book of it. he was pleased and told me he had just done it. late in life he was shocked at what he considered the desecration of the hetch-hetchy valley by the city of san francisco, which sought to dam it and form a great lake that should forever furnish a supply of water and power. he came to my office to supervise the publication of the _sierra club bulletin_, and we had a spirited but friendly discussion of the matter, i being much interested as a supervisor of the city. as a climax he exclaimed, "why, if san francisco ever gets the hetch-hetchy i shall _swear_, even if i am in heaven." george holmes howison among the many beneficent acts of horatio stebbins in his distinguished ministry in san francisco was his influence in the establishment of the chair of moral philosophy in the university of california. it was the gift of d.o. mills, who provided the endowment on the advice of dr. stebbins. the first occupant appointed was professor howison, who from 1884 to 1912 happily held a fruitful term. he was admirably fitted for his duties, and with the added influence of the philosophical union contributed much to the value of the university. a genial and kindly man, with a keen sense of humor, he was universally and deeply respected by the students and by his associates. he made philosophy almost popular, and could differ utterly from others without any of the common results of antagonism, for he generated so much more light than heat. his mind was so stored that when he began to speak there seemed to be no reason aside from discretion why he should ever stop. i enjoyed to the full one little business incident with him. in my publications i followed a somewhat severe style of typography, especially priding myself on the possession of a complete series of genuine old-style faces cast in philadelphia from moulds cut a hundred and seventy years ago. in these latter days a few bold men have tried to improve on this classic. one ronaldson especially departed from the simplicity and dignity of the cut approved by caxton, aldus, and elzevir, and substituted for the beautiful terminal of, say the capital t, two ridiculous curled points. i resented it passionately, and frequently remarked that a printer who would use ronaldson old-style would not hesitate to eat his pie with a knife. one day professor howison (i think his dog "socrates" was with him) came into my office and inquired if i had a cut of old-style type that had curved terminals on the capital ts. i had no idea why he asked the question; i might have supposed that he wanted the face, but i replied somewhat warmly that i had not, that i had never allowed it in the shop, to which he replied with a chuckle, "good! i was afraid i might get them." professor howison furnished one of the best stories of the great earthquake of 1906. in common with most people, he was in bed at fourteen minutes past five on the 18th of april. while victims generally arose and dressed more or less, the professor calmly remained between the sheets, concluding that if he was to die the bed would be the most fitting and convenient place to be in. it took more than a full-grown earthquake to disturb his philosophy. josiah royce it is doubtful if any son of california has won greater recognition than josiah royce, born in grass valley in november, 1855. in 1875 he graduated at the university of california. after gaining his ph.d. at johns hopkins, he returned to his _alma mater_ and for four years was instructor in english literature and logic. he joined the chit-chat club in 1879 and continued a member until his removal to harvard in 1882. he was a brilliant and devoted member, with a whimsical wit and entire indifference to fit of clothes and general personal appearance. he was eminently good-natured and a very clever debater. with all the honors heaped upon him, he never forgot his youthful associates. at a reunion held in 1916 he sent this friendly message to the club: "have warmest memories of olden time. send heartiest greetings to all my fellow members. i used to be a long-winded speaker in chit-chat, but my love far outlasts my speeches. you inspired my youth. you make my older years glow." in my youthful complacency i had the audacity to print an essay on "the policy of protection," taking issue with most of my brother members, college men and free-traders. later, while on a visit to california, he told me, with a twinkle in his eye, "i am using your book at harvard as an example of logic." he died honored everywhere as america's greatest philosopher, one of the world's foremost thinkers, and withal a very lovable man. charles gordon ames in the early days rev. charles gordon ames preached for a time in santa cruz. later he removed to san jose, and occasionally addressed san francisco audiences. he was original and witty and was in demand for special occasions. in an address at a commencement day at berkeley, i heard him express his wonder at being called upon, since he had matriculated at a wood-pile and graduated in a printing-office. several years after he had returned east i was walking with him in boston. we met one of his friends, who said, "how are you, ames?" "why, i'm still at large, and have lucid intervals," replied the witty preacher. he once told me of an early experience in candidating. he was asked to preach in worcester, where there was a vacancy. next day he met a friend who told him the results, saying: "you seem to have been fortunate in satisfying both the radicals and the conservatives. but your language was something of a surprise; it does not follow the usual harvard type, and does not seem ministerial. you used unaccustomed illustrations. you spoke of something being as slow as molasses. now, so far as i know, molasses is not a scriptural word. honey is mentioned in the bible, but not molasses." joaquin miller the passing of joaquin miller removed from california her most picturesque figure. in his three-score and twelve years he found wide experience, and while his garb and habits were somewhat theatrical he was a strong character and a poet of power. in some respects he was more like walt whitman than any other american poet, and in vigor and grasp was perhaps his equal. of california authors he is the last of the acknowledged leading three, harte and clemens completing the group. for many years he lived with his wife and daughter at "the heights," in the foothills back of oakland, writing infrequently, but with power and insight. his "columbus" will probably be conceded to be his finest poem, and one of the most perfect in the language. he held his faculties till the last, writing a few days before his death a tender message of faith in the eternal. with strong unconventionality and a somewhat abrupt manner, he was genial and kindly in his feelings, with warm affections and great companionability. an amusing incident of many years ago comes back to freshen his memory. an entertainment of a social character was given at the oakland unitarian church, and when my turn came for a brief paper on wit and humor i found that joaquin miller sat near me on the platform. as an illustration of parody, bordering on burlesque, i introduced a miller imitation--the story of a frontiersman on an arizona desert accompanied by a native woman of "bare, brown beauty," and overtaken by heat so intense that but one could live, whereupon, to preserve the superior race, he seized a huge rock and "crushed with fearful blow her well-poised head." it was highly audacious, and but for a youthful pride of authorship and some curiosity as to how he would take it i should have omitted it. friends in the audience told me that the way in which i watched him from the corner of my eye was the most humorous thing in the paper. at the beginning his head was bowed, and for some time he showed no emotion of any sort, but as i went on and it grew worse and worse, he gave way to a burst of merriment and i saw that i was saved. i was gratified then, and his kindliness brings a little glow of good-will--that softens my farewell. mark twain of mark twain my memory is confined to two brief views, both before he had achieved his fame. one was hearing him tell a story with his inimitable drawl, as he stood smoking in front of a montgomery street cigar-store, and the other when on his return from a voyage to the hawaiian islands he delivered his famous lecture at the academy of music. it was a marvelous address, in which with apparently no effort he led his audience to heights of appreciative enthusiasm in the most felicitous description of the beautiful and wonderful things he had seen, and then dropped them from the sublime to the ridiculous by some absurd reference or surprisingly humorous reflection. the sharp contrast between his incomparably beautiful word paintings and his ludicrous humor was characteristic of two sides of the waggish newspaper reporter who developed into a good deal of a philosopher and the first humorist of his time. sheldon gaylord kellogg among my nearest friends i am proud to count sheldon g. kellogg, associated through both the unitarian church, the sunday-school, and the chit-chat club. he was a lawyer with a large and serviceable conscience as well as a well-trained mind. he grew to manhood in the middle west, graduated in a small methodist college, and studied deeply in germany. he came to san francisco, establishing himself in practice without acquaintance, and by sheer ability and character compelled success. his integrity and thoroughness were beyond any question. he went to the root of any matter that arose. he was remarkably well read and a passionate lover of books. he was exact and accurate in his large store of information. dr. stebbins, in his delightful extravagance, once said to mrs. kellogg, "your husband is the only man i'm afraid of--he knows so much." at the chit-chat no one dared to hazard a doubtful statement of fact. if it was not so, kellogg would know it. he was the most modest of men and would almost hesitate to quote the last census report to set us right, but such was our respect for him that his statements were never questioned; he inspired complete confidence. i remember an occasion when the supreme court of the state, or a department of it, had rendered an opinion setting aside a certain sum as the share of certain trustees. kellogg was our attorney. he studied the facts and the decision until he was perfectly sure the court had erred and that he could convince them of it. we applied for a hearing in bank and he was completely sustained. kellogg was an eminently fair man. he took part in a political convention on one occasion and was elected chairman. there was a bitter fight between contending factions, but kellogg was so just in his rulings that both sides were satisfied and counted him friendly. he was a lovable personality and the embodiment of honor. he was studious and scholarly and always justified our expectation of an able, valuable paper on whatever topic he treated. i do not recall that in all my experience i have ever known any other man so unreservedly and universally respected. joseph worcester it is a salutary experience to see the power of goodness, to know a man whose loveliness of life and character exerts an influence beyond the reach of great intellectual gift or conscious effort. joseph worcester was a modest, shrinking swedenborgian minister. his congregation was a handful of refined mystics who took no prominent part in public affairs and were quiet and unobtrusive citizens. he was not attractive as a preacher, his voice trembled with emotion and bashfulness, and he read with difficulty. he was painfully shy, and he was oppressed and suffered in a crowd. he was unmarried and lived by himself in great simplicity. he seemed to sustain generally good health on tea, toast, and marmalade, which at noonday he often shared with his friend william keith, the artist. he was essentially the gentle man. in public speaking his voice never rang out with indignation. he preserved the conversational tone and seemed devoid of passion and severity. he was patient, kind, and loving. he had humor, and a pleasant smile generally lighted up his benignant countenance. he was often playfully indignant. i remember that at one time an aesthetic character named russell addressed gatherings of society people advising them what they should throw out of their over-furnished rooms. in conversation with mr. worcester i asked him how he felt about it. he replied, "i know what i should throw out--mr. russell." it was so incongruous to think of the violence implied in mr. worcester's throwing out anything that it provoked a hearty laugh. yet there was no weakness in his kindliness. he was simply "slow to wrath," not acquiescent with wrong. his strength was not that of the storm, but of the genial shower and the smiling sun. his heart was full of love and everybody loved him. his hold was through the affections and his blissful unselfishness. he seemed never to think of himself at all. he thought very effectually of others. he was helpfulness incarnate, and since he was influential, surprising results followed. he was fond of children and gave much time to the inmates of the protestant orphan asylum, conducting services and reading to them. they grew very fond of him, and his influence on them was naturally great. he was much interested in the education of the boys and in their finding normal life. he took up especially the providing for them of a home where they could live happily and profitably while pursuing a course of study in the california school of mechanical arts. an incident of his efforts in their behalf illustrates what an influence he had gained in the community. a young man of wealth, not a member of his congregation and not considered a philanthropist, but conversant with what mr. worcester was doing and hoped to do, called upon him one day and said: "mr. worcester, here is a key that i wish to leave with you. i have taken a safe-deposit box; it has two keys. one i will keep to open the box and put in bonds from time to time, and the other i give you that you may open it and use coupons or bonds in carrying out your plans for helping the boys." this illustrates how he was loved and what good he provoked in others. without knowing it or seeking it he was a great community influence. he was gifted of the spirit. he had beauty of character, simplicity, unselfishness, love of god and his fellow-men. his special beliefs interested few, his life gave life, his goodness was radiant. he drew all men to him by his love, and he showed them the way. frederick lucian hosmer i cannot forego the pleasure of referring with sincere affection to my brother octogenarian, frederick l. hosmer. he achieved the fullness of honor two months in advance of me, which is wholly fitting, since we are much farther separated in every other regard. he has been a leader for a great many years, and i am proud to be in sight of him. his kindly friendship has long been one of the delights of my life, and i have long entertained the greatest respect and admiration for his ability and quality. as a writer of hymns he has won the first place in the world's esteem, and probably his noble verse is (after the psalms) the most universally used expression of the religious feeling of mankind. more worshipers unite in singing his hymns, unitarian though he be, than those of any other man, living or dead. it is a great distinction, and in meriting it he holds enviable rank as one of the world's greatest benefactors. yet he remains the most modest of men, with no apparent consciousness that he is great. his humility is an added charm and his geniality is beautiful. he has made the most of a fancied resemblance to me, and in many delightful ways has indulged in pleasantries based on it. in my room hangs a framed photograph signed "faithfully yours, chas. a. murdock." it is far better-looking than i ever was--but that makes no difference. we were once at a conference at seattle. he said with all seriousness, "murdock, i want you to understand that i intend to exercise great circumspection in my conduct, and i rely upon you to do the same." i greatly enjoyed dr. hosmer's party, with its eighty candles, and i was made happy that he could be at mine and nibble my cake. not all good and great men are so thoroughly lovable. thomas lamb eliot when horatio stebbins in 1864 assumed charge of the san francisco church he was the sole representative of the denomination on the pacific coast. for years he stood alone,--a beacon-like tower of liberalism. the first glimmer of companionship came from portland, oregon. at the solicitation of a few earnest unitarians dr. stebbins went to portland to consult with and encourage them. a society was formed to prepare the way for a church. a few consecrated women worked devotedly; they bought a lot in the edge of the woods and finally built a small chapel. then they moved for a minister. in st. louis, mo., rev. william greenleaf eliot had been for many years a force in religion and education. a strong unitarian church and washington university resulted. he had also founded a family and had inspired sons to follow in his footsteps. thomas lamb eliot had been ordained and was ready for the ministry. he was asked to take the portland church and he accepted. he came first to san francisco on his way. dr. stebbins was trying the experiment of holding services in the metropolitan theater, and i remember seeing in the stage box one sunday a very prepossessing couple that interested me much--they were the eliots on their way to portland. william g., jr., was an infant-in-arms. i was much impressed with the spirit that moved the attractive couple to venture into an unknown field. the acquaintance formed grew into a friendship that has deepened with the years. the ministry of the son in portland has been much like that of the father in st. louis. the church has been reverent and constructive, a steady force for righteousness, an influence for good in personal life and community welfare. dr. eliot has fostered many interests, but the church has been foremost. he has always been greatly respected and influential. dr. stebbins entertained for him the highest regard. he was wont to say: "thomas eliot is the wisest man for his years i ever knew." he has always been that and more to me. he has served one parish all his life, winning and holding the reverent regard of the whole community. the active service of the church has passed to his son and for years he has given most of his time and strength to reed college, established by his parishioners. in a few months he will complete his eighty years of beautiful life and noble service. he has kept the faith and passed on the fine spirit of his inheritance. chapter xi outings i have not been much of a traveler abroad, or even beyond the pacific states. i have been to the atlantic shore four times since my emigration thence, and going or coming i visited chicago, st. louis, denver, and other points, but have no striking memories of any of them. in 1914 i had a very delightful visit to the hawaiian islands, including the volcano. it was full of interest and charm, with a beauty and an atmosphere all its own; but any description, or the story of experiences or impressions, would but re-echo what has been told adequately by others. british columbia and western washington i found full of interest and greatly enjoyed; but they also must be left unsung. my outings from my beaten track have been brief, but have contributed a large stock of happy memories. camping in california is a joy that never palls, and among the pleasantest pictures on memory's walls are the companionship of congenial friends in the beautiful surroundings afforded by the santa cruz mountains. twice in all the years since leaving humboldt have i revisited its hospitable shores and its most impressive redwoods. my love for it will never grow less. twice, too, have i reveled in the yosemite valley and beyond to the valley that will form a majestic lake--glorious hetch-hetchy. i am thankful for the opportunity i have enjoyed of seeing so fully the great pacific empire. my church supervision included california, oregon, and washington, with the southern fringe of canada for good measure. even without this attractive neighbor my territory was larger than france (or germany) and belgium, england, wales, and ireland combined. san diego, bellingham, and spokane were the triangle of bright stars that bounded the constellation. to have found friends and to be sure of a welcome at all of these and everywhere between was a great extension to my enjoyment, and visiting them was not only a pleasant duty but a delightful outing. in the sierras belated vacations perhaps gain more than they lose, and in the sum total at least hold their own. it is one advantage of being well distributed that opportunities increase. in that an individual is an unsalaried editor, extensive or expensive trips are unthinkable; that his calling affords necessities but a scant allowance of luxuries, leaves recreation in the sierras out of the question; but that by the accidents of politics he happens to be a supervisor, certain privileges, disguised attractively as duties, prove too alluring to resist. the city had an option on certain remote lands supposed to be of great value for water and power, and no one wants to buy a pig of that size in a poke, so it was ordained that the city fathers, with their engineer and various clerks and functionaries entitled to a vacation and desiring information (or _vice versa_), should visit the lands proposed to be acquired. in 1908 the supervisors inspected the dam-sites at lake eleanor and the hetch-hetchy, but gained little idea of the intervening country and the route of the water on its way to the city. subsequently the trip was more thoroughly planned and the result was satisfactory, both in the end attained and in the incidental process. on the morning of august 17, 1910, the party of seventeen disembarked from the stockton boat, followed by four fine municipal automobiles. when the men and the machines were satisfactorily supplied with fuel and the outfit was appropriately photographed, the procession started mountainward. for some time the good roads, fairly well watered, passed over level, fruitful country, with comfortable homes. then came gently rolling land and soon the foothills, with gravelly soil and scattered pines. a few orchards and ranches were passed, but not much that was really attractive. then we reached the scenes of early-day mining and half-deserted towns known to bret harte and the days of gold. knight's ferry became a memory instead of a name. chinese camp, once harboring thousands, is now a handful of houses and a few lonely stores and saloons. it had cast sixty-five votes a few days before our visit. then came a stratum of mills and mines, mostly deserted, a few operating sufficiently to discolor with the crushed mineral the streams flowing by. soon we reached the tuolumne, with clear, pellucid water in limited quantities, for the snow was not very plentiful the previous winter and it melted early. following its banks for a time, the road turned to climb a hill, and well along in the afternoon we reached "priests," a favorite roadhouse of the early stage line to the yosemite. here a good dinner was enjoyed, the machines were overhauled, and on we went. then big oak flat, a mining town of some importance, was passed, and a few miles farther groveland, where a quite active community turned out en masse to welcome the distinguished travelers. the day's work was done and the citizens showed a pathetic interest which testified to how little ordinarily happened. the shades of night were well down when hamilton's was reached--a stopping-place once well known, but now off the line of travel. here we were hospitably entertained and slept soundly after a full day's exercise. in the memory of all, perhaps the abundance of fried chicken for breakfast stands out as the distinguishing feature. a few will always remember it as the spot where for the first time they found themselves aboard a horse, and no kind chronicler would refer to which side of the animal they selected for the ascent. the municipally chartered pack-train, with cooks and supplies for man and beast, numbered over sixty animals, and chaparejos and cowboys, real and near, were numerous. the ride to the rim of the south fork of the tuolumne was short. the new trail was not sufficiently settled to be safe for the sharp descents, and for three-quarters of a mile the horses and mules were turned loose and the company dropped down the mountainside on foot. the lovely stream of water running between mountainous, wooded banks was followed up for many miles. about midday a charming spot for luncheon was found, where corral creek tumbles in a fine cascade on its way to the river. the day was warm, and when the mouth of eleanor creek was reached many enjoyed a good swim in an attractive deep basin. turning to the north, the bank of eleanor was followed to the first camping-place, plum flat, an attractive clearing, where wild plums have been augmented by fruit and vegetables. here, after a good dinner served in the open by the municipal cooks, the municipal sleeping-bags were distributed, and soft and level spots were sought for their spreading. the seasoned campers were happy and enjoyed the luxury. some who for the first time reposed upon the breast of mother earth failed to find her charm. one father awoke in the morning, sat up promptly, pointed his hand dramatically to the zenith, and said, "never again!" but he lived to revel in the open-air caravansary, and came home a tougher and a wiser man. a ride of fifteen miles through a finely wooded country brought us to the lake eleanor dam-site and the municipal camp, where general preparations are being made and runoff records are being taken. in a comfortable log house two assistants to the engineer spent the winter, keeping records of rainfall and other meteorological data. while we were in camp here, lake eleanor, a mile distant, was visited and enjoyed in various ways, and those who felt an interest in the main purpose of the trip rode over into the cherry creek watershed and inspected the sites and rights whose purchase is contemplated. saturday morning we left lake eleanor and climbed the steep ridge separating its watershed from that of the tuolumne. from eleanor to hetch-hetchy as the crow would fly, if there were a crow and he wanted to fly, is five miles. as mules crawl and men climb, it takes five hours. but it is well worth it for association with granite helps any politician. hetch-hetchy valley is about half as large as yosemite and almost as beautiful. early in the season the mosquitoes make life miserable, but as late as august the swampy land is pretty well dried up and they are few. the tuolumne tumbles in less effectively than the merced enters yosemite. instead of two falls of nine hundred feet, there is one of twenty or so. the wampana, corresponding to the yosemite falls, is not so high nor so picturesque, but is more industrious, and apparently takes no vacation. kolana is a noble knob, but not quite so imposing as sentinel rock. we camped in the valley two days and found it very delightful. the dam-site is not surpassed. nowhere in the world, it is said, can so large a body of water be impounded so securely at so small an expense. there is an admirable camping-ground within easy distance of the valley, and engineers say that at small expense a good trail, and even a wagon-road, can be built along the face of the north wall, making possible a fine view of the magnificent lake. with the argument for granting the right the city seeks i am not here concerned. the only purpose in view is the casual recital of a good time. it has to do with a delightful sojourn in good company, with songs around the camp-fire, trips up and down the valley, the taking of photographs, the appreciation of brook-trout, the towering mountains, the moon and stars that looked down on eyes facing direct from welcome beds. mention might be made of the discovery of characters--types of mountain guides who prove to be scholars and philosophers; of mules, like "flapjack," of literary fame; of close intercourse with men at their best; of excellent appetites satisfactorily met; of genial sun and of water so alluring as to compel intemperance in its use. the climbing of the south wall in the early morning, the noonday stop at hog ranch, and the touching farewell to mounts and pack-train, the exhilarating ride to crocker's, and the varied attractions of that fascinating resort, must be unsung. a night of mingled pleasure and rest with every want luxuriously supplied, a half-day of good coaching, and once more yosemite--the wonder of the west. its charms need no rehearsing. they not only never fade, but they grow with familiarity. the delight of standing on the summit of sentinel dome, conscious that your own good muscles have lifted you over four thousand feet from the valley's floor, with such a world spread before you; the indescribable beauty of a sunrise at glacier point, the beauty and majesty of vernal and nevada falls, the knightly crest of the half dome, and the imposing grandeur of the great capitan--what words can even hint their varied glory! all this packed into a week, and one comes back strengthened in body and spirit, with a renewed conviction of the beauty of the world, and a freshened readiness to lend a hand in holding human nature up to a standard that shall not shame the older sister. a day in concord there are many lovely spots in new england when june is doing her best. rolling hills dotted with graceful elms, meadows fresh with the greenest of grass, streams of water winding through the peaceful stretches, robins hopping in friendly confidence, distant hills blue against the horizon, soft clouds floating in the sky, air laden with the odor of lilacs and vibrant with songs of birds. there are many other spots of great historic interest, beautiful or not--it doesn't matter much--where memorable meetings have been held which set in motion events that changed the course of history, or where battles have been fought that no american can forget. there are still other places rich with human interest where some man of renown has lived and died--some man who has made his undying mark in letters, or has been a source of inspiration through his calm philosophy. but if one would stand upon the particular spot which can claim supremacy in each of these three respects, where can he go but to concord, massachusetts! it would be hard to find a lovelier view anywhere in the gentle east than is to be gained from the reservoir height--a beautifully broken landscape, hill and dale, woodland, distant trees, two converging streams embracing and flowing in a quiet, decorous union beneath the historic bridge, comfortable homes, many of them too simple and dignified to be suspected of being modern, a cluster of steeples rising above the elms in the center of the town, pastures and plowed fields, well-fed jerseys resting under the oaks, an occasional canoe floating on the gentle stream, genuine old new england homes, painted white, with green blinds, generous wood-piles near at hand, comfortable barns, and blossoming orchards, now and then a luxurious house, showing the architect's effort to preserve the harmonious--all of these and more, to form a scene of pastoral beauty and with nothing to mar the picture--no uncompromising factories, no blocks of flats, no elevated roads, no glaring signs of cuban cheroots or peruna bitters. it is simply an ideal exhibit of all that is most beautiful and attractive in new england scenery and life, and its charm is very great. turning to its historic interest, one is reminded of it at every side. upon a faithful reproduction of the original meeting-house, a tablet informs the visitor that here the first meeting was held that led to national independence. a placard on a quaint old hostelry informs us that it was a tavern in pre-revolutionary times. leaving the "common," around which most new england towns cluster, one soon reaches monument street. following it until houses grow infrequent, one comes to an interesting specimen which seems familiar. a conspicuous sign proclaims it private property and that sightseers are not welcome. it is the "old manse" made immortal by the genius of hawthorne. near by, an interesting road intersects leading to a river. soon we descry a granite monument at the famous bridge, and across the bridge "the minute man." the inscription on the monument informs us that here the first british soldier fell. an iron chain incloses a little plot by the side of a stone wall where rest those who met the first armed resistance. crossing the bridge which spans a dark and sluggish stream one reaches french's fine statue with emerson's noble inscription,- "by the rude bridge that arched the flood, their flag to april's breeze unfurled, here once the embattled farmers stood and fired the shot heard round the world." no historic spot has a finer setting or an atmosphere so well fitted to calm reflection on a momentous event. on the way to concord, if one is so fortunate as to go by trolley, one passes through lexington and catches a glimpse of its bronze "minute man," more spirited and lifelike in its tense suspended motion than french's calm and determined farmer-soldier. in the side of a farmhouse near the concord battle-field--if such an encounter can be called a battle--a shot from a british bullet pierced the wood, and that historic orifice is carefully preserved; a diamond-shaped pane surrounds it. our friend, rev. a.w. jackson, remarked, "i suppose if that house should burn down, the first thing they would try to save would be that bullet-hole." but concord is richest in the memory of the men who have lived and died there, and whose character and influence have made it a center of world-wide inspiration. one has but to visit sleepy hollow cemetery to be impressed with the number and weight of remarkable names associated with this quiet town, little more than a village. sleepy hollow is one of a number of rather unusual depressions separated by sharp ridges that border the town. the hills are wooded, and in some instances their steep sides make them seem like the half of a california canyon. the cemetery is not in the cuplike valley, but on the side and summit of a gentle hill. it is well kept and very impressive. one of the first names to attract attention is "hawthorne," cut on a simple slab with rounded top. it is the sole inscription on the little stone about a foot high. simplicity could go no farther. within a small radius are found the graves of emerson, thoreau, alcott, john weiss, and samuel hoar. emerson's monument is a beautiful boulder, on the smoothed side of which is placed a bronze tablet. the inscriptions on the stones placed to the memory of the different members of the family are most fitting and touching. this is also true of the singularly fine inscriptions in the lot where rest several generations of the hoar family. a good article might be written on monumental inscriptions in the concord burial-ground. it is a lovely spot where these illustrious sons of concord have found their final resting-place, and a pilgrimage to it cannot but freshen one's sense of indebtedness to these gifted men of pure lives and elevated thoughts. the most enjoyable incident of the delightful decoration day on which our trip was made was a visit to emerson's home. his daughter was in new york, but we were given the privilege of freely taking possession of the library and parlor. everything is as the sage left it. his books are undisturbed, his portfolio of notes lies upon the table, and his favorite chair invites the friend who feels he can occupy it. the atmosphere is quietly simple. the few pictures are good, but not conspicuous or insistent. the books bear evidence of loving use. bindings were evidently of no interest. nearly all the books are in the original cloth, now faded and worn. one expects to see the books of his contemporaries and friends, and the expectation is met. they are mostly in first editions, and many of them are almost shabby. taking down the first volume of _the dial_, i found it well filled with narrow strips of paper, marking articles of especial interest. the authors' names not being given, they were frequently supplied by mr. emerson on the margin. i noticed opposite one article the words "t. parker" in mr. emerson's writing. the books covered one side of a good-sized room and ran through the connecting hall into the quaint parlor, or sitting-room, behind it. a matting covered the floor, candlesticks rested on the chimney-piece, and there was no meaningless bric-a-brac, nor other objects of suspected beauty to distract attention. as you enter the house, the library occupies the large right-hand corner room. it was simple to the verge of austerity, and the farthest possible removed from a "collection." there was no effort at arrangement--they were just books, for use and for their own sake. the portfolio of fugitive notes and possible material for future use was interesting, suggesting the source of much that went to make up those fascinating essays where the "thoughts" often made no pretense at sequence, but rested in peaceful unregulated proximity, like eggs in a nest. here is a sentence that evidently didn't quite satisfy him, an uncertain mark of erasure leaving the approved portion in doubt: "read proudly. put the duty of being read invariably on the author. if he is not read, whose fault is it? i am quite ready to be charmed--but i shall not make believe i am charmed." dear man! he never would "make believe." transparent, sincere soul, how he puts to shame all affectation and pretense! mr. jackson says his townsmen found it hard to realize that he was great. they always thought of him as the kindly neighbor. one old farmer told of his experience in driving home a load of hay. he was approaching a gate and was just preparing to climb down to open it, when an old gentleman nimbly ran ahead and opened it for him. it was emerson, who apparently never gave it a second thought. it was simply the natural thing for him to do. walden pond is some little distance from the emerson home, and the time at our disposal did not permit a visit. but we had seen enough and felt enough to leave a memory of rare enjoyment to the credit of that precious day in concord. five days there are several degrees of rest, and there are many ways of resting. what is rest to one person might be an intolerable bore to another, but when one finds the ultimate he is never after in doubt. he knows what is, to him, _the real thing_. the effect of a sufficient season, say five days, to one who had managed to find very little for a disgracefully long time, is not easy to describe, but very agreeable to feel. my friend [footnote: horace davis] has a novel retreat. he is fond of nature as manifested in the growth of trees and plants, and some seventeen years ago he bought a few acres, mostly of woods, in the santa cruz mountains. there was a small orchard, a few acres of hillside hayfield, and a little good land where garden things would grow. there was, too, a somewhat eccentric house where a man who was trying to be theosophical had lived and communed with his mystified soul. to foster the process he had more or less blue glass and a window of gothic form in the peak of his rambling house. in his living-room a round window, with sanskrit characters, let in a doubtful gleam from another room. in the side-hill a supposedly fireproof vault had been built to hold the manuscript that held his precious thoughts. in the gulch he had a sacred spot, where, under the majestic redwoods, he retired to write, and in a small building he had a small printing-press, from which the world was to have been led to the light. but there was some failure of connection, and stern necessity compelled the surrender of these high hopes. my friend took over the plant, and the reformer reformed and went off to earn his daily bread. his memory is kept alive by the name mahatma, given to the gulch, and the blue glass has what effect it may on a neighbor's vegetables. the little house was made habitable. the home of the press was comfortably ceiled and made into a guest-chamber, and apples and potatoes are stored in the fireproof vault. the acres were fairly covered with a second growth of redwood and a wealth of madroã±os and other native trees; but there were many spaces where nature invited assistance, and my friend every year has planted trees of many kinds from many climes, until he has an arboretum hardly equaled anywhere. there are pines in endless variety--from the sierra and from the seashore, from new england, france, norway, and japan. there flourish the cedar, spruce, hemlock, oak, beech, birch, and maple. there in peace and plenty are the sequoia, the bamboo, and the deodar. eucalypts pierce the sky and japanese dwarfs hug the ground. these children of the woodland vary in age from six months to sixteen years, and each has its interest and tells its story of struggle, with results of success or failure, as conditions determine. at the entrance to the grounds an incense-cedar on one side and an arbor-vitae on the other stand dignified guard. the acres have been added to until about sixty are covered with growing trees. around the house, which wisteria has almost covered, is a garden in which roses predominate, but hollyhocks, coreopsis, and other flowers not demanding constant care grow in luxuriance. there is abundance of water, and filtered sunshine gives a delightful temperature. the thermometer on the vine-clad porch runs up to 80 in the daytime and in the night drops down to 40. a sympathetic italian lives not far away, keeping a good cow, raising amazingly good vegetables, gathering the apples and other fruit, and caring for the place. the house is unoccupied except during the five days each month when my friend restores himself, mentally and physically, by rest and quiet contemplation and observation. he takes with him a faithful servitor, whose old age is made happy by these periodical sojourns, and the simple life is enjoyed to the full. into this resthaven it was my happy privilege to spend five-sevenths of a week of august, and the rare privilege of being obliged to do nothing was a great delight. early rising was permissible, but not encouraged. at eight o'clock a rich hibernian voice was heard to say, "hot water, mr. murdock," and it was so. a simple breakfast, meatless, but including the best of coffee and apricots, tree-ripened and fresh, was enjoyed at leisure undisturbed by thought of awaiting labor. following the pleasant breakfast chat was a forenoon of converse with my friend or a friendly book or magazine, broken by a stroll through some part of the wood and introduction to the hospitably entertained trees from distant parts. my friend is something of a botanist, and was able to pronounce the court names of all his visitors. wild flowers still persist, and among others was pointed out one which was unknown to the world till he chanced to find it. [illustration: outings in the sierras, 1910 in hawaii, 1914] very interesting is the fact that the flora of the region, which is a thousand feet above sea-level, has many of the characteristics of beach vicinity, and the reason is disclosed by the outcropping at various points of a deposit of white sand, very fine, and showing under the microscope the smoothly rounded form that tells of the rolling waves. this deposit is said to be traceable for two hundred miles easterly, and where it has been eroded by the streams of today enormous trees have grown on the deposited soil. the mind is lost in conjecture of the time that must have elapsed since an ancient sea wore to infinitesimal bits the quartz that some rushing stream had brought from its native mountains. another interesting feature of the landscape was the clearly marked course of the old "indian trail," known to the earliest settlers, which followed through this region from the coast at santa cruz to the santa clara valley. it followed the most accessible ridges and showed elemental surveying of a high order. along its line are still found bits of rusted iron, with specks of silver, relics of the spurs and bridles of the caballeros of the early days. the maples that sheltered the house are thinned out, that the sun may not be excluded, and until its glare becomes too radiant the steamer-chair or the rocker seeks the open that the genial page of "susan's escort, and others," one of the inimitable books of edward everett hale, may be enjoyed in comfort. when midday comes the denser shade of tree or porch is sought, and coats come off. at noon dinner is welcome, and proves that the high cost of living is largely a conventional requirement. it may be beans or a bit of roast ham brought from home, with potatoes or tomatoes, good bread and butter, and a dessert of toasted crackers with loganberries and cream. to experience the comfort of not eating too much and to find how little can be satisfying is a great lesson in the art of living. to supplement, and dispose of, this homily on food, our supper was always baked potatoes and cream toast,--but such potatoes and real cream toast! of course, fruit was always "on tap," and the good coffee reappeared. in the cool of the afternoon a longer walk. good trails lead over the whole place, and sometimes we would go afield and call on some neighbor. almost invariably they were italians, who were thriving where improvident americans had given up in despair. always my friend found friendly welcome. this one he had helped out of a trouble with a refractory pump, that one he had befriended in some other way. all were glad to see him, and wished him well. what a poor investment it is to quarrel with a neighbor! sometimes my friend would busy himself by leading water to some neglected and thirsty plant, while i was re-reading "tom grogan" or brander matthews' plays, but for much of the time we talked and exchanged views on current topics or old friends. when the evening came we prudently went inside and continued our reading or our talk till we felt inclined to seek our comfortable beds and the oblivion that blots out troubles or pleasures. and so on for five momentous days. quite unlike the "seven days" in the delightful farce-comedy of that name, in which everything happened, here nothing seemed to happen. we were miles from a post-office, and newspapers disturbed us not. the world of human activity was as though it were not. politics as we left it was a disturbing memory, but no fresh outbreaks aggravated our discomfort. we were at rest and we rested. a good recipe for long life, i think, would be: withdraw from life's turmoil regularly--five days in a month. an anniversary the humboldt county business established and conducted on honor by alex. brizard was continued on like lines by his three sons with conspicuous success. as the fiftieth anniversary approached they arranged to fitly celebrate the event. they invited many of their father's and business associates to take part in the anniversary observance in july, 1913. with regret, i was about to decline when my good friend henry michaels, a state guard associate, who had become the head of the leading house in drugs and medicines with which brizard and his sons had extensively dealt, came in and urged me to join him in motoring to humboldt. he wanted to go, but would not go alone and the double delight of his company and joining in the anniversary led to prompt acceptance of his generous proposal. there followed one of the most enjoyable outings of my life. i had never compassed the overland trip to humboldt, and while i naturally expected much the realization far exceeded my anticipations. from the fine highway following the main ridge the various branches of the eel river were clearly outlined, and when we penetrated the world-famous redwood belt and approached the coast our enjoyment seemed almost impious, as though we were motoring through a cathedral. we found arcata bedecked for the coming anniversary. the whole community felt its significance. when the hour came every store in town closed. seemingly the whole population assembled in and around the brizard store, anxious to express kindly memory and approval of those who so well sustained the traditions of the elders. the oldest son made a brief, manly address and introduced a few of the many who could have borne tribute. it was a happy occasion in which good-will was made very evident. a ball in the evening concluded the festivities, and it was with positive regret that we turned from the delightful atmosphere and retraced our steps to home and duty. chapter xii occasional verse boston (after bret harte) on the south fork of yuba, in may, fifty-two, an old cabin stood on the hill, where the road to grass valley lay clear to the view, and a ditch that ran down to buck's mill. it was owned by a party that lately had come to discover what fate held in store; he was working for brigham, and prospecting some, while the clothes were well cut that he wore. he had spruced up the cabin, and by it would stay, for he never could bear a hotel. he refused to drink whiskey or poker to play, but was jolly and used the boys well. in the long winter evenings he started a club, to discuss the affairs of the day. he was up in the classics--a scholarly cub- and the best of the talkers could lay. he could sing like a robin, and play on the flute, and he opened a school, which was free, where he taught all the musical fellows to toot, or to join in an anthem or glee. so he soon "held the age" over any young man who had ever been known on the bar; and the boys put him through, when for sheriff he ran, and his stock now was much above par. in the spring he was lucky, and struck a rich lead, and he let all his friends have a share; it was called the new boston, for that was his breed, and the rock that he showed them was rare. when he called on his partners to put up a mill, they were anxious to furnish the means; and the needful, of course, turned into his till just as freely as though it was beans. then he went to the bay with his snug little pile- there was seventeen thousand and more- to arrange for a mill of the most approved style, and to purchase a sturtevant blower. but they waited for boston a year and a day, and he never was heard of again. for the lead he had opened was salted with pay, and he'd played 'em with culture and brain. the greater freedom o god of battles, who sustained our fathers in the glorious days when they our priceless freedom gained, help us, as loyal sons, to raise anew the standard they upbore, and bear it on to farther heights, where freedom seeks for self no more, but love a life of service lights. our father is god our father? so sublime the thought we cannot hope its meaning full to grasp, e'en as the child the gifts the wise men brought could not within his infant fingers clasp. we speak the words from early childhood taught. we sometimes fancy that their truth we feel; but only on life's upper heights is caught the vital message that they may reveal. so on the heights may we be led to dwell, that nearer god we may more truly know how great the heritage his love will tell if we be lifted up from things below. resurgam the stricken city lifts her head, with eyes yet dim from flowing tears; her heart still throbs with pain unspent, but hope, triumphant, conquers fears. with vision calm, she sees her course, nor shrinks, though thorny be the way. shall human will succumb to fate, crushed by the happenings of a day? the city that we love shall live, and grow in beauty and in power; her loyal sons shall stand erect, their chastened courage heaven's dower. and when the story shall be told of direful ruin, loss, and dearth, there shall be said with pride and joy: "but man survived, and proved his worth." san francisco o "city loved around the world," triumphant over direful fate, thy flag of honor never furled, proud guardian of the golden gate; hold thou that standard from the dust of lower ends or doubtful gain; on thy good sword no taint of rust; on stars and stripes no blot or stain. thy loyal sons by thee shall stand, thy highest purpose to uphold; proclaim the word, o'er all the land, that truth more precious is than gold. let justice never be denied, resist the wrong, defend the right; where west meets east stand thou in pride of noble life,--a beacon-light. the new year the past is gone beyond recall, the future kindly veils its face; today we live, today is all we have or need, our day of grace. the world is god's, and hence 'tis plain that only wrong we need to fear; 'tis ours to live, come joy or pain, to make more blessed each new year. prodigals we tarry in a foreign land, with pleasure's husks elate, when robe and ring and father's hand at home our coming wait. deep-rooted fierce boreas in his wildest glee assails in vain the yielding tree that, rooted deep, gains strength to bear, and proudly lifts its head in air. when loss or grief, with sharp distress, to man brings brunt of storm and stress, he stands serene who calmly bends in strength that trust, deep-rooted, lends. to horatio stebbins the sun still shines, and happy, blithesome birds are singing on the swaying boughs in bloom. my eyes look forth and see no sign of gloom, no loss casts shadow on the grazing herds; and yet i bear within a grief that words can ne'er express, for in the silent tomb is laid the body of my friend, the doom of silence on that matchless voice. now girds my spirit for the struggle he would praise. a leader viewless to the mortal eye still guides my steps, still calls with clarion cry to deeds of honor, and my thoughts would raise to seek the truth and share the love on high. with loyal heart i'll follow all my days. new year, 1919 the sifting sand that marks the passing year in many-colored tints its course has run through days with shadows dark, or bright with sun, but hope has triumphed over doubt and fear, new radiance flows from stars that grace our flag. our fate we ventured, though full dark the night, and faced the fatuous host who trusted might. god called, the country's lovers could not lag, serenely trustful, danger grave despite, untrained, in love with peace, they dared to fight, and freed a threatened world from peril dire, establishing the majesty of right. our loyal hearts still burn with sacred fire, our spirits' wings are plumed for upward flight. new year, 1920 the curtain rises on the all-world stage, the play is unannounced; no prologue's word gives hint of scene, or voices to be heard; we may be called with tragedy to rage, in comedy or farce we may disport, with feverish melodrama we may thrill, or in a pantomimic role be still. we may find fame in field, or grace a court, whate'er the play, forthwith its lines will start, and every soul, in cloister or in mart, must act, and do his best from day to day- so says the prompter to the human heart. "the play's the thing," might shakespear's hamlet say. "the thing," to us, is playing well our part. epilogue *walking in the way* to hold to faith when all seems dark to keep of good courage when failure follows failure to cherish hope when its promise is faintly whispered to bear without complaint the heavy burdens that must be borne to be cheerful whatever comes to preserve high ideals to trust unfalteringly that well-being follows well-doing this is the way of life to be modest in desires to enjoy simple pleasures to be earnest to be true to be kindly to be reasonably patient and ever-lastingly persistent to be considerate to be at least just to be helpful to be loving this is to walk therein. charles a. murdock produced from images generously made available by the internet archive.) the law and the poor by his honour judge edward abbott parry author of "dorothy osborne's letters," "judgments in vacation," "what the judge saw," "the scarlet herring," "katawampus," etc. "laws grind the poor and rich men rule the law." oliver goldsmith: "the traveller." london smith, elder & co., 15, waterloo place 1914 to the man in the street this volume is dedicated, in the pious hope that he will take up his job and do it. contents chap. page introduction ix references xv i. past and present 1 ii. the ancients and the debtor 20 iii. of imprisonment for debt in england 36 iv. how the machine works 58 v. workmen's compensation 76 vi. bankruptcy 106 vii. divorce 125 viii. flat-traps and their victims 152 ix. poverty and procedure 172 x. crime and punishment 189 xi. the police court 213 xii. landlord and tenant 233 xiii. the two public houses: i. the alehouse 252 xiv. the two public houses: ii. the workhouse 271 xv. remedies of to-day 285 xvi. remedies of to-morrow 299 index 311 introduction "but, say what you like, our queen reigns over the greatest nation that ever existed." "which nation?" asked the younger stranger, "for she reigns over two." the stranger paused; egremont was silent, but looked inquiringly. "yes," resumed the stranger after a moment's interval. "two nations; between whom there is no intercourse and no sympathy; who are as ignorant of each other's habits, thoughts, and feelings, as if they were dwellers in different zones, or inhabitants of different planets; who are formed by a different breeding, are fed by a different food, are ordered by different manners, and are not governed by the same laws." "you speak of----," said egremont, hesitatingly. "the rich and the poor." benjamin disraeli: "sybil, or the two nations." the rich have many law books written to protect their privileges, but the poor, who are the greater nation, have but few. not that i should like to call this a law book, for two reasons: firstly, it would not be true; secondly, if it were true, i should not mention it, as i want people to read it. you cannot read law books, you only consult them. a law book seeks to set out the law, the whole law, and nothing but the law on the subject of which it treats. there are many books on poor law, there are hundreds of volumes about the poor, and many more about the law, but the law and the poor is a virgin subject. it is a wonder that it should be so because it is far more practical and interesting than either of its component parts. it is as if poetry had dealt with beans or with bacon and no poet had hymned the more beautiful associations of beans and bacon. in the same way the law and the poor is a subject worthy of treatment in drama or poetry, but that that may be successfully done someone must do the rough spade work of digging the material out of the dirt heaps in which it lies, and presenting it in a more or less palatable form. when this has been done the poet or the politician can come along and throw the crude metal into the metres of sonnets or statutes or any form of glorious letters they please. from the very earliest i have taken a keen interest in this subject. i remember well when i was a schoolboy the profound impression made upon me by samuel plimsoll's agitation to rescue merchant seamen from the horrible abuses practised by a certain class of shipowner. my father, serjeant parry, was engaged in litigation for plimsoll, and i heard many things at first hand of that great reformer's hopes and disappointments. there were a class of traders known as "ship knackers," who bought up old unseaworthy vessels and sent them to sea overloaded and over-insured. plimsoll, for years, devoted himself to prevent this wickedness. there was the usual parliamentary indifference, the customary palavering and pow-wowing in committees until, after six or seven years of constant fighting, the public conscience was awakened, and, in 1875, disraeli produced a merchant shipping bill. but then, as now, there was no parliamentary time for legislation dealing with the poor, and the bill was one of the innocents to be sacrificed at the annual summer massacre. this would have been the end of all hope of reform had not samuel plimsoll, in a fine frenzy of rage and disgust, openly charged the government with being parties to the system which sent brave men to death in the winter seas and left widows and orphans helpless at home, "in order that a few speculative scoundrels, in whose heart there is neither the love of god nor the fear of god, may make unhallowed gains." this was unparliamentary enough, but it was allowed to pass. it was when he began to give the names of foundered ships and their parliamentary owners and, in his own words, "to unmask the villains" who sent poor men to death and destruction, that he was promptly called to order, and, refusing to withdraw, left the house. the result of his outburst was entirely satisfactory. the government were obliged to bring in another bill and to pass it without delay. many years later the unauthorised radical programme of mr. joseph chamberlain aroused my youthful enthusiasm, and i spent much of my then ample leisure as a missionary in that cause. we soon lost our great leader, who went away to champion what he considered greater causes, but he was one of the first english statesmen in high places to make his main programme a reform of the law in the interests of the poor, and he left behind him mournful but earnest disciples who have not yet found such another leader. the workmen's compensation act will always, i think, be regarded as one of his greatest achievements, and mauled and mangled as it has been in the law courts it remains the most substantial benefit that the poor have received from the legislature in my lifetime. twenty years' service in urban county courts has naturally given me some insight into the way in which the law treats the poor and the real wants of the latter. i agree that such a book as this would be better written by one who had actual experience of the life of the poor, rather than the official hearsay experience which is all that i can claim to have had. i think the great want of labour to-day is an attorney-general, a man who having graduated in the workshop comes to the study and practice of the law with a working man's knowledge and ideals, and gaining a lawyer's power of expressing his wants in legal accents, raises his voice to demand those new laws that the poor are so patiently awaiting. if there be such a one on his way and this volume is of any small service to him, it will have more than fulfilled its purpose. originating in a series of essays published in the _sunday chronicle_, it has grown into a more ambitious project, and is now, i trust, a fairly complete text-book of the law as it ought not to be in relation to the poor. in my endeavour to please the taste of the friend to whom i have dedicated this book i have dispensed with all footnotes, but i have added an appendix of references in case there may be any who might wish to test the accuracy of statements in its pages. "thus," as my lord coke says, "requesting you to weigh these my labours in the even balance of your indifferent judgment i submit them to your censure and take my leave." edward a. parry. sevenoaks, 1914. references _the number of the page and the number of the line counting from the top are given in the left-hand column._ introduction page line xi 11 hansard. 1875. vol. 225, col. 1823. xiii 7 coke's "institutes." i. "to the reader." chapter i 1 3 job xiii. 5. 4 20 "the compleat constable. directing all constables, headboroughs, tithing men, churchwardens, overseers of the poor, surveyors of the highways and scavengers in the duty of their several offices, according to the power allowed them by the laws and the statutes." 3rd edition. london. printed for tho. bever at the hand and star, near temple bar. 1708. 8 16 "shakespeare's europe. unpublished chapters of fynes moryson's itinerary, being a survey of the condition of europe at the end of the sixteenth century. 1903." at p. 67. 9 24 smollett. "roderick random." chap. xxiii. 12 6 the trial of richard weston at the guildhall of london for the murder of sir thomas overbury, 19th october, 13 james 1st, a.d. 1615. howell's "state trials," ii., 914. 13 21 boswell's "life of johnson." edited by birkbeck hill. ii. 130. 14 29 boswell's "life of johnson." iv. 188. 17 8 _manchester guardian_, saturday, january 24th, 1824. chapter ii 22 6 2 kings iv. 1--7. 28 6 grote's "history of greece." part ii., c. 11. 32 20 hunter's "roman law." 3rd edition. p. 18. 34 7 fynes moryson. "shakespeare's europe." chapter iii imprisonment for debt.--the main authorities for the history of imprisonment for debt are the reports of the three commissions. 1840. report of commission on the present state of the laws respecting bankrupts and insolvent debtors. 1893. report from the select committee on the debtors act with minutes of evidence. 1909. report on select committee on debtors (imprisonment) with minutes of evidence. the hansard reports of the debates over the bills of 1837, 1844, and 1869, contain many clear statements of the argument for, and against, abolition. 37 17 "the law of executions, to which are added the history and practice of the court of king's bench." by the late lord chief baron gilbert. 42 7 smollett. "roderick random." chap. lxi. 43 1 for the story of the clerkenwell spinster and the debtor, see sir walter besant's "london in the eighteenth century," chap. v., "debtors' prisons," at p. 562. this volume contains excellent accounts of the law and the poor in the eighteenth century. 45 8 december 5th, 1837. lord cottenham introduced bill to abolish arrest on mesne process. 1 & 2 vict. c. 110. 45 30 thackeray. "the virginians." vol. i. chap. xlv. 46 18 duke de cadaval's case. hansard. 1837. vol. 39, p. 593. 48 2 j. b. atlay. "the victorian chancellors." i., 406. 48 18 lord brougham's speech. hansard. 1837. vol. 39, p. 574. 49 15 lord brougham's speech. hansard. 1844. vol. 75, p. 1174. 51 6 see judgment of sir george jessel, m.r., in _marris_ v. _ingram_, (1879) law reports, 13 chancery division, p. 341. 55 6 sir robert collier's speech. hansard. 1869. vol. 197, p. 421. chapter iv 65 5 "debtors' imprisonment report, 1909." appendix 19, at p. 371. 70 26 basil montagu. "opinions of paley burke and dr. johnson on imprisonment for debt." 75 5 jeremy taylor. "a prayer to be said by all debtors, and all persons obliged whether by crime or contract." "holy living and dying." chapter v there are many books on the workmen's compensation act. that by mr. adshead elliott is as clear and comprehensive as any. the hansard debates on the bills of 1897 and 1906 are full of interest. 81 12 john chipman gray. "nature and services of law." sections 222-224. 83 13 _the attorney-general_ v. _the edison telephone co. of london, ltd._, (1880) law reports, 6 queen's bench division, p. 244. 86 5 gilbert e. roe. "our judicial oligarchy." 87 17 mr. asquith's speech on employers' liability bill. hansard. 1893. vol. 8, p. 1948. 92 24 see the judgments of lord halsbury and lord davey, in _lysons_ v. _andrew knowles_, (1901) law reports, appeal cases, p. 79. chapter vi 108 28 jeremiah xxii. 13. 109 16 see "the living wage," by philip snowden, m.p., for a sensible, practical statement of the socialist ideal. 109 18 psalms xxxv. 10. 110 11 carlyle. "chartism." chap. i. 119 30 hansard. 1883. vol. 277, p. 834. chapter vii the chief authority for this chapter is "the report of the royal commission on divorce and matrimonial causes," published in 1912, cited below as d. c. 125 13 notes on the reformatio legum ecclesiasticarum. d. c., iii., pp. 44-58. appendix ii., p. 23. 129 24 j. b. atlay. "the victorian chancellors." ii., 71. 133 24 jane and fred's case. d. c., ii., 390. 134 14 george and mary's case. d. c., ii., 390. 136 4 note by mrs. tennant. d. c. report, 169. 137 28 mr. justice bargrave deane's evidence. d. c., i., 49. 138 16 alfred and anna's case. d. c., ii., 390. 139 9 john and catherine's case. d. c., ii., 391. 140 25 norah's case. d. c., ii., 391. 143 17 divorce in france. m. mesnil's evidence. d. c., iii., 485. 146 18 mr. dendy's evidence. d. c., i., 133. 147 29 german divorce. dr. carl neuhaus's evidence. d. c., iii., 472. 147 31 scot's divorce. mr. lamier's evidence. d. c., i., 277. 150 9 selden's "table talk." lxxxiv. 150 30 d. c. report, part ix., par. 50. chapter viii 153 18 carlyle. "latter day pamphlets." "parliament." 164 28 dickens. "oliver twist." chap. li. 169 8 arthur hugh clough. "the latest decalogue." chapter ix 174 6 george eliot. "the mill on the floss." book ii., chap. ii. 175 11 _lysons_ v. _andrew knowles_, (1901) law reports, appeal cases, p. 79. 178 15 tomkin's "law dictionary," _sub tit._, "barraster." 180 19 see lord sumner's judgment in _dallimore_ v. _williams and jesson_, _times_ newspaper, saturday, march 28th, 1914. 182 1 swift. "gulliver's travels." "a voyage to the houyhnhnms." 183 3 crabbe. "the borough." letter vi. 187 24 as to french conciliation courts, see poincaré, "how france is governed," chap. x., "justice." 188 18 piers plowman. "the vision of the field full of folk." chapter x 190 4 sydney smith. "counsel for prisoners." _edinburgh review_, 1826. 192 23 bentham. "a treatise on judicial evidence." 1825. book i., chap. ii., p. 7. 193 19 thackeray. "the case of peytel." "paris sketch book." 194 2 dickens. "why?" "miscellaneous papers." ii., 101. 195 22 hansard. 1898. vol. 54, p. 1176. 196 4 hansard. 1898. vol. 56, p. 990. 196 11 see division list on second reading. hansard. 1898. vol. 56, p. 1087. 198 7 hansard. 1907. vol. 174, p. 282. 198 10 hansard. 1907. vol. 174, p. 292. 199 5 boswell's "life of johnson." birkbeck hill's edition. iii., 25. 200 6 fuller's "church history." 201 30 howell's "state trials." ii., 927. chapter xi 215 4 "speech of viscount haldane to the american bar association at montreal on september 1st, 1913." published in "the conduct of life and other addresses, 1914," p. 97. 227 22 sydney smith. "cruel treatment of untried prisoners." _edinburgh review_, 1824. chapter xii as to housing, see "report of her majesty's commissioners for inquiring into the housing of the working classes, 1885," and "report of the joint select committee of the house of lords and the house of commons, 1902." 235 9 _r._ v. _foxby_, 6 modern reports, pp. 11, 178, 213, 239 and 311. 238 4 dickens. "bleak house." chap. xvi. 238 32 charles kingsley. "alton locke." chap. ii. 240 1 benjamin disraeli. "sybil." book ii., chap. iii. 244 10 "history of housing reform." published by the national unionist association. 1913. 246 1 "the land. the report of the land enquiry committee." vol. ii., p. 28. 250 2 carlyle. "chartism." chap. viii. "new eras." 254 21 "the republic of plato." book iv. translated by davies and vaughan. chapter xiii 255 26 mr. balfour's speech on licensing. hansard. 1908. vol. 185, p. 98. 256 4 licensing act, 1904, § 4, now licensing act, 1910, § 14. 256 16 hansard. 1904. vol. 133, p. 742. 258 21 dickens. "our mutual friend." book i., chap. vi. 265 19 "letters and memories of charles kingsley." i., 270. chapter xiv 272 15 "report of the royal commission on the poor laws and relief of distress, 1909." 274 24 coke's "institutes." iii., chap. 40, p. 103 (note). 275 16 horn's "mirror of justices." selden society. vol. 7, book iv., chap. xvi., "of the judgment of homicide." 276 2 horn's "mirror of justices." book i., "of sins against the holy peace." 279 11 "report of royal commission on the poor laws, 1834," p. 307. 280 17 "poor law report, 1909," p. 728. chapter xv 285 1 2 samuel xv. 4. 290 12 walt whitman. "song of myself." 292 14 "report of select committee of the house of lords on the debtors act." william johnson's evidence, p. 164. 294 12 manitoba laws. chapter xvi 299 2 marcus aurelius. "meditations." book iv., par. 31. 303 3 rudyard kipling. "the five nations." "stellenbosh," p. 194. the law and the poor chapter i past and present in a word we may gather out of history a policy no less wise than eternal; by the comparison and application of other men's fore-passed miseries with our own like errors and ill-deservings. sir walter raleigh: "history of the world." oxford edition. vol. ii., preface v. and vi. i often feel that if that excellent patriarch job had been alive he would have sent me a postcard indited, "o that ye would altogether hold your peace and it should be your wisdom." i have an anonymous friend who sends me frank criticisms of that kind on postcards. the sentiments are the same as job's text, but the language is fruitier. nevertheless, i like to hear from him, for he is an attentive reader of all i write. but, honestly, although i was always sorry for job and glad when he came into his camels and donkeys in the last chapter, yet i never sympathised with his attitude of taking his troubles lying down. after all, if one has gained a little practical experience of the law and the poor by living and working with them for twenty years it seems a pity to take it with you across the ferry into the silence merely because you have a bashful and retiring disposition. it is right, of course, to give your views and services to select commissions and the like,--but that is no better than hiding a lump of gold in a hole in the ground. the wiser plan is to try and tell the law-makers of the future--the men in the street--what is wrong with the machine, so that when they take it over, as they must do some day, they will not scrap it in mere despair, but tune it up to a faster and nobler rhythm. job, great, good, patient soul that he was, had his sour moments--a medical friend of mine believes that he had a liver,--i am sorry not to take the patriarch's advice, but i do not see my way to hold my peace about the law and the poor, and that is why i propose to try and point out how and why the law as a system is hard on the poor, and wherein the governors and great ones of the earth may further temper the wind to the shorn lamb. i myself do not expect to enter into the promised land of legal reform, but i am as sure that the younger generation will see it, as i am sure that they will see the rising sun if they ever get up early enough. the man at the door of the booth who beats the drum and calls out to the young folk in the fair to walk up and see the show plays a helpful part, though the old gentleman knows that he is doomed to stand outside and never make one of the audience. moses was like that, but he did useful work in booming the promised land. an eminent socialist complained to me with tears in his eyes that nothing was being done for the poor. i do not agree. not enough, certainly, but something, and every day more and more. the world is a slow world, and nature, like all such artisans, does her building and painting and decorating with exasperating deliberation. geology is slower than the south eastern railway. but no doubt providence intended each of them to go at the pace they do for our good. and it is impious to grumble. nevertheless, if i were a sculptor called upon to design a symbolic statue of nature, i should model a plumber. slow, hesitating, occasionally mixing the taps and flooding the world's bathroom or exploding the gas mains in the cellars of the earth, but in the end doing the job somehow--such is the way of nature. you cannot cinematograph the growth of the world or its rocks and trees and human beings--to study nature you want long life and a microscope. and the only way to make out whether the tide is coming in or out is to place a mark upon the shore and wait and see. it is the same if you are travelling an unknown road--you measure your progress by the milestones. in this matter of the law and the poor, if we want to know where we are to-day and where we are likely to be three hundred years hence, the only sane way to make the experiment is to go back to what we know of things in the past, and, by measuring the progress made in bygone centuries, take heart for the morrow. that is what sir walter raleigh meant when he told us how to gather a sane policy for to-day out of the blunders and troubles of yesterday. as i grope my way back along the main road of the history of the law into the dark ages i seem to find the milestones of reform set at longer and longer intervals. this puts me in good heart for the happy youths whose lot it will be to set their faces towards the morning breezes of the future. their milestones will come at shorter intervals every day, until the burden of the law drops from the shoulders of the poor at the wicket gate. there is no greater folly than to sing the praises of the good old days. anyhow, the law had no good old days for the poor. stroll down to the dockyards with samuel pepys; take a walk down fleet street with dr. johnson; or, even as late as the days of charles dickens, go round the parish with mr. bumble. you will learn in this way better than in any other how the law has treated the poor in the good old days. i have a quaint little volume written for the dogberries of the early eighteenth century called "the compleat constable." it is amazing to read of the tyranny of the law towards the poor and the homeless of those days. the statutes made for punishing rogues, vagabonds, night walkers and such other idle persons are, says the anonymous legal author, "a large branch of the constable's office, and herein two things are to be known:-"(1) what is a rogue and who is to be accounted a vagabond? "(2) what is to be done unto them?" the charming impersonal technical spirit of this little work is beyond all praise. not a word is ever used to remind you that, after all, a rogue and a vagabond is a man and a brother. you are taught first to diagnose him as izaak walton would teach the young angler how to discover the singling that did not usually stir in the daytime, and having captured your rogue and vagabond, you are then enlightened as to the various methods of killing or curing him. and first you are to note that all persons above the age of seven, man or woman, married or single, that wander abroad without a lawful passport and give no good account of their travel are accounted rogues. then follows a very lengthy list of such as are "of a higher degree and are to be accounted as rogues, vagabonds and sturdy beggars." such are all scholars and sea-faring men that beg, wandering persons using unlawful games, subtle crafts, or pretending to have skill in telling of fortunes by the marks or figures on the hands or face, egyptians or gypsies. all jugglers or slight-of-hand artists pretending to do wonders by virtue of hocus pocus, the powder of pimper le pimp, or the like; all tinkers, pedlars, chapmen, glassmen, especially if they be not well known or have a sufficient testimonial. all collectors for gaols or hospitals, fencers, bearwards, common players of interludes, and fiddlers or minstrels wandering abroad. also persons delivered out of gaols who beg their fees, such as go to and from the baths and do not pursue their license, soldiers and mariners that beg and counterfeit certificates from their commanders. and, lastly: "all labourers which wander abroad out of their respective parishes, and refuse to work for wages reasonably taxed, having no livelyhood otherwise to maintain themselves, and such as go with general passports not directed from parish to parish." in a word, all the unfortunate poor who would not do as they were told by their pastors and masters and wanted to work and amuse themselves in their own way were rogues and vagabonds. and it is not without interest to run your eye over this list, for the statutory rogue and vagabond is still with us and our poor law of to-day suffers from its direct hereditary connection with the poor law of the eighteenth century. the duty of "the compleat constable" was, in the words of dogberry, to "comprehend all vagrom men" and he was liable to a fine of ten shillings for every neglect. moreover, if you were a stalwart fellow, you could apprehend your own rogue and vagabond and hand him over to the constable, who was bound to receive him. having dealt in accurate detail with the classification and identification of rogues, we come next to the chapter on treatment, which is best given in the simple words of the original. "the punishment is after this manner. the constable, headburrough or tythingman assisted by the minister and one other of the parish, is to see (or do it himself), that such rogues and vagabonds, etc., be stript naked from the middle upwards and openly whipped till their body be bloody and then forthwith to be sent away from constable to constable, the next straight way to the place of their birth; and if that cannot be known then to the place where they last dwelt, by the space of one whole year before the time of such their punishment; and if that cannot be known then to the town through which they last passed unpunished." if, however, none of these habitats was discoverable, the vagrom man was sent to the house of correction or common gaol, where he was put to hard labour for twelve months. it is only fair to remember, "that after such vagabond is whipt as aforesaid he is to have a testimonial"--is this the origin of people asking for testimonials?--"under the hand and seal of the constable or tything-man and the minister testifying the day and place of his punishment; as also the place to which he is to be conveyed, and the time limited for his own passage thither: and if by his own default he exceed that time then he is again to be whipt--and so from time to time till he arrive at the place limited." in the good old days of merrie england the chief entertainment of the villagers must have been to crowd round the stocks and the whipping post on the village green--some of which are existing to this day--just as their city cousins swarmed along the road to tyburn. and if you had suggested that the players or the fiddlers were a more wholesome amusement for the people than these cruel sights, you would not only have shocked the minister but would have rendered yourself liable to be treated as a vagrom man and to receive a testimonial from the constable. it is easy to-day to see the wrongdoing of much of this, but it was not to be expected that the citizens of the time should see any evil in the everyday cruelties they were used to. the law seems to have been hard on the poor then, but very few worried about it. history is constantly showing us that in matters touching the imperfections of our own system of law we are colour blind to the cruelties we commit ourselves and easily moved to indignation by the horrors and wickednesses committed by foreigners, especially if they are foreigners who have never known the blessings of the particular religion we profess. when fynes moryson was travelling in turkey at the end of the sixteenth century, he set down with reasonable detestation some of the gruesome things he observed. "touching their corporal and capital judgments," he writes: "for small offences they are beaten with cudgels on the soles of the feet, the bellies and backs, the strokes being many and painful according to the offence or the anger of him that inflicts them. myself did see some hanging and rotting in chains upon the gallows." yet in england he might have seen many of his fellow countrymen hanging and rotting in chains, for there was at that date and for many years afterwards no country with a more evil record than england for the practice of capital punishment for minor offences. as to mere corporal punishment, there was not a village in england without its whipping post, and a common sight in the streets of the city was to see a poor wretch being whipped at the cart's tail. in ordinary cases the journey was from newgate to ludgate, or from charing cross to westminster, but for really bad cases it was extended from newgate to charing cross. and not only did these punishments exist in england, but the populace enjoyed them. one of the sights of london was to see the women whipped in the bridewell. the court of governors held their board meeting, presided over by a magistrate, and the sentence was executed in their presence and continued until the president struck the table in front of him with a hammer. the cry, "o good sir robert, knock! pray, good sir robert, knock!" which the victims screamed out whilst under the lash, became a common slang cry among the lower orders in the streets of london in the seventeenth century. there can be no doubt about the horrors of the old prisons, but it was only men and women of especial insight who recognised that there was real evil in them. literature and art did much to arouse the public conscience. there is a strong description of the bridewell in "roderick random," where smollett makes miss williams tell her life story. in this prison, she says, "i actually believed myself in hell tormented by fiends; indeed, there needs not a very extravagant imagination to form that idea; for of all the scenes on earth that of bridewell approaches nearest the notion i had always entertained of the infernal regions. here i saw nothing but rage, anguish and impiety; and heard nothing but groans, curses and blasphemy. in the midst of this hellish crew i was subjected to the tyranny of a barbarian who imposed upon me tasks that i could not possibly perform and then punished my incapacity with the utmost rigour and inhumanity. i was often whipped into a swoon and lashed out of it, during which miserable intervals i was robbed by my fellow-prisoners of everything about me even to my cap, shoes and stockings: i was not only destitute of necessaries but even of food, so that my wretchedness was extreme." no one need suppose that smollett is guilty of exaggeration, for the well-known plate of hogarth shows us the actual scene and the records of the place are numerous. there were, of course, just as many good and charitable men and women then as there are now, but the possibility that a bridewell was a thing that the world had then no use for was entirely beyond the thought of the eighteenth century citizen. in the same way how few of us recognise that there is much room for reform in the penal system of to-day. it is natural that it should be so. we arrive in the world knowing nothing much about it, we are brought up to believe that everything that has been going on for the last few centuries has been for the best, and the tired old ones who are leaving us are never tired enough to leave off telling us that they have made every possible reform that it was safe and advisable to make. in the few years of hustling life and in the scanty hours that he can spare from earning his daily bread the average citizen has little time and opportunity to investigate the social system of which he is a unit, or to understand how or why the wheels of the world machine are grinding unevenly. when we read of the horrors of two or three hundred years ago, it should not be to cast a reproach against our fathers, but rather to learn who were the men and women who moved the world of that day to see things as they were. these glorious spirits have enabled us to enter upon our inheritance free from the worst degradations of the past and we may best render them thanks and praise by learning to follow their example. i make no doubt that most of us are much like old fynes moryson, who, being an ordinary average englishman, saw the everyday horrors of his own country, but was in no way impressed by them, yet was moved to grave indignation at the wickedness and cruelties of foreigners. truly the seventeenth century turk was a cruel beast. moryson tells us with honest reprobation, but in gruesome detail, of the turkish methods of impaling, where a "man may languish two or three days in pain and hunger; if torment will permit him in that time to feel hunger for no man dares give him meat," and of casting down malefactors to pitch upon hooks and other nameless horrors. yet if he had been in london on october 19th, 1615, and dropped into the guildhall, he might have heard the lord chief justice of england, the great coke, using much persuasion to richard weston, who, being accused of the murder of sir thomas overbury, stood mute, refusing to plead. coke and his brother judges, having failed to persuade the wretched weston to utter a plea of not guilty, the lord chief justice repeated for his benefit the law of england at that time and reminded him that the prisoner who wilfully stood mute must undergo the _peine forte et dure_, the extremity and rigour whereof was expressed in these words, "_onere, frigore et fame_." "for the first," continued his lordship, "he was to receive his punishment by the law, to be extended and then to have weights laid upon him no more than he was able to bear which were by little and little to be increased. for the second, that he was to be exposed in an open place near the prison in the open air, being naked. and; lastly, that he was to be preserved with the coarsest bread that could be got, and water out of the next sink or puddle to the place of execution, and that day he had water he should have no bread, and that day he had bread he should have no water; and in this torment he was to linger as long as nature could linger out so that often times men lived in that extremity eight or nine days; adding further that as life left him so judgment should find him. and therefore he required him upon consideration of these reasons to advise himself to plead to his country." notwithstanding this advice the wretched man continued mute, but after a consideration, during an adjournment of three or four days, of the law of procedure as laid down by lord chief justice coke, weston thought better of it and pleaded not guilty, and was duly convicted and executed. how illogical it seems that a citizen whose state executed this form of torture on its prisoners should hold up the holy hands of horror at the variations of cruelty that satisfied the lust of the unspeakable turk! the _peine forte et dure_ remained one of the pillars of our law until the reign of george iii. and was carried into execution in the reign of queen anne and george ii.--so obstinately do we cling to our ancient precedents and so fearful are we of facing the narrow paths that lead to better things. when oliver goldsmith wrote, "laws grind the poor and rich men rule the law," i do not know that he wished to make any specially unkind attack upon the rich. i imagine he merely intended to state a fact which seems in all ages to have been universally true. i do not suppose that in the middle of the eighteenth century anyone in the least recognised the actual horrors that were going on around him unless it was some poet and dreamer like oliver himself. the strong, sensible men of that generation were as assured of their own righteousness as they are to-day. dr. johnson told dr. maxwell that "the poor in england were better provided for than in any other country of the same extent; he did not mean little cantons or petty republics. where a great proportion of the people (said he) are suffered to languish in helpless misery that country must be ill-policed and wretchedly governed; a decent provision for the poor is the test of civilisation. gentlemen of education, he observed, were pretty much the same in all countries; the condition of the lower orders, the poor specially, was the true mark of national discrimination." the good doctor rolled all that excellent stuff out one evening in 1770 to the rev. dr. maxwell, the assistant preacher of the temple, who, like boswell, faithfully recorded what he remembered of it in the morning--i doubt not that if dr. johnson had lived in 1670, or 1870, or 1970, or had flourished under caligula or nero, he would have rolled out the same sonorous complacent nonsense to some sort of faithful human gramophone who would have recorded the utterances of his master's voice with a canine credulity in its omniscience. there is nothing extraordinary in the divergence of the views of oliver goldsmith and dr. johnson about the law and the poor. the good doctor held the strong, sensible, tory view that the system of treating the poor handed down to us by our forefathers was the right and proper system, that it was at least as good as any other system, that nothing anyhow could be learned from the hated foreigner, and that to pander to dreamers and busybodies, who found fault and wanted to alter things, was to start down the broad road of destruction. oliver goldsmith might have thought the same thing if he had been an englishman, but he had the saving grace of irish blood in his veins, and the true irish have the power of looking beyond the present, and are often prophets and dreamers of dreams, seeing signs and wonders that we wot not of. "sir!" said dr. johnson on another occasion, and when he began like that you knew that wisdom was about; "the age is running mad after innovations; all the business of the world is to be done in a new way; tyburn itself is not safe from the fury of innovation." it having been argued that this was an improvement--"no, sir (said he eagerly), it is not an improvement; they object that the old method drew together a number of spectators. sir, executions are intended to draw spectators. if they do not draw spectators, they don't answer their purpose. the old method was most satisfactory to all parties; the public was gratified by a procession; the criminal was supported by it. why is all this to be swept away?" and boswell and sir william scott nodded approval, just as you and i would have done or do now when some important old gentleman lays down the law about something of which he knows perhaps even a little less than we do and we are too courteous or cowardly to tell him that at the back of our minds we believe he is talking nonsense. if you would be gratified by a tyburn procession, you may see one any day for yourself in hogarth's print of the awful end of the idle apprentice. the ragged men, women and children bawling dying speeches about the streets, the criminal in the cart sitting beside his coffin, the chaplain exhorting the poor outcast, who, if he still courted popularity, scoffed openly, shouting to his friends on st. sepulchre's steps where they stood with their nosegays to give their pal a last greeting. what a solemn impressive scene! all the way up holborn there is a crowd so great that every twenty or thirty yards the cart is pulled up, and now someone brings out wine and the malefactor drinks a last toast. and when he reaches the fatal tree the ribald mob swears and laughs and shouts out obscene jests. amid these noises a psalm is sung and the sound of it drowned in filthy tumult. so was the life of a fellow sinner brought to an end in the eighteenth century. and there were men and women who wanted to abolish it all. it was too much for dr. johnson. "tyburn itself not safe from the fury of innovation!" fancy that! what a terrible outlook! the law deserting the poor and giving them no more cheap excursions to tyburn--well might the good doctor shake his dear old head and prophesy woe. and when dr. johnson upheld the english treatment of the poor in 1770, we may suppose he knew as much about it as a literary professor of to-day knows about what is going on in the workhouse, or the police court, or the county court of our own time. the belief that the world is the best possible of worlds has its value in making for the stability of things, but mere ignorance of the facts of life, coupled with that strange form of piety which accepts whatever system was good enough for a past age as the only possible system for this, renders the pace of social reform as imperceptible to the human mind as the movements of glaciers. if a history of the law and the poor were to be written, it would be a story of the lower classes emerging out of slavery into serfdom, out of serfdom into freedom of a limited character, and every age finding new abuses to remedy and trying in some small way to rid the law of some of those traits of barbarism which linger in its old-world features. to each new generation the terrors of the past iniquity of the law are mere nightmares. we can scarcely believe that what we read is true any more than our grandchildren will be able to understand how we were able to tolerate some of the everyday legal incidents of our daily courts. less than a hundred years ago at salford quarter sessions there were over two hundred prisoners, all poor and mostly very young, and the law thought nothing of transporting them for life or fourteen years as a punishment for small thefts. and horrible as all this cruelty was, yet i make little doubt that the judges of the time, with very few exceptions, administered the law as humanely as they do to-day. sir thomas starkie, the learned chairman of the salford epiphany quarter sessions in 1824, no doubt felt very grieved when he sentenced martha myers, aged sixteen, and mary mason, twenty-four, to seven years' transportation. i expect he thought he was "giving them another chance." perhaps he was. we do not know. they may have become the mothers of big-limbed colonial aristocrats instead of peopling the hundred of salford with another generation of feeble-minded criminals. nowadays there is a tendency among the less discerning of mankind to set down all the rough edges and inequalities of the law to the fault of the judges, though in truth they have but a small part in the making of new laws, and i do not think they can be rightly blamed for harsh administration. they get the blame because they are the figure-heads of the show, so to speak, and the public know nothing of the difficulties under which the judges labour. it is their duty to administer the complicated modern laws turned out by parliament in a somewhat haphazard fashion, and they are bound to keep alive old-world laws that ought long ago to have been shot on to the rubbish heap. nearly all the law relating to the poor will be found to be defective to our modern sympathies, just because it is a patching up of the ancient cruel pagan law of past ages and does not break bravely away from the old superstitious uses and close for ever the volumes of laws that were made in the days when liberty and equality and fraternity were words of anarchy and rebellion. the poor are suffering to-day at the hands of the law because in the evolution of things we have a lot of old derelict law made by slaveowners for slaves, by masters for serfs, by the landlords for the landless. it is law that has no more relation to the wants of to-day, and would be of no more purpose to a ministry of justice--if we had one--than crossbows and arquebuses would be to the war office, or coracles to the admiralty. and, instead of cursing the judges, who, poor fellows, are doing their best, i wish our parliamentary masters would look into the history of the matter. they would find, i think, that in the last few years enormous reforms have been made in modifying the cruelty of the law to the poor, and might discover, by marking back on the track of past reform, the lines upon which further evolution may be hastened. one thing, i think, they will be convinced about: it is not the judges who are hard on the poor, it is the law. it is the sins of the lawgivers of the past that the poor are expiating to-day. chapter ii the ancients and the debtor my thoughts are with the dead, with them i live in long-past years, their virtues love, their faults condemn, partake their hopes and fears, and from their lessons seek and find instruction with a humble mind. robert southey: "my days among the dead are past." i find this question of the debtor, and our modern method of imprisoning the poorer variety of the genus, in the forefront of any consideration of the problem of the law and the poor, because to my mind it is a clear and classic instance of the way in which it comes about that the law with us is a respecter of persons. the physiological tutor will take his pupils into the laboratory and cut up a rabbit to show them where their livers ought to be, the microscopist will choose a newt to exhibit to you the circulation of the blood, and in like manner, for my purposes, the debtor seems to me to possess all the necessary legal incidents in him through which one can give an excellent object lesson on the law and the poor. there is no legal mystery about a debtor; he is a common object of our legal seashore, as ancient of lineage as the periwinkle and sometimes almost as difficult to get at. everyone has in his life at some time or other been a debtor, though not all of us have attained to the dignity of a co-respondent, a mortgagor, a garnishee, a bankrupt or a _cestui que trust_. it seems to me that to demonstrate to the man in the street the unfairness of our law of imprisonment for debt is such a feasible proposition, that i have come to regard the subject as very fitting for the citizen's kindergarten education on legal reform. once understand the history, and the causes of the continued existence, of imprisonment for debt, and its evil effect on right action, conduct and social life, and you will find it easier to diagnose the more obscure legal diseases which are partially the outcome and partially the cause of much real distress among the poor. carlyle tells us to "examine history for it is philosophy teaching by experience," and, if we take his advice in this matter of imprisonment for debt, we shall, i think, be bound to admit that what is going on among us day by day in the county courts of this country is in historical fact a relic of a very ancient barbarism. it is the more extraordinary to me that this relic should still be venerated, since history also makes it clear that teachers, prophets and law-givers of all ages have testified to their sense of the cruelty and injustice of the law which thrusts a man into prison because he does not pay his neighbour what he owes him. i propose, therefore, before i set down exactly what we are doing to-day, to trace the pedigree of our present system of dealing with debtors and show you historically and cinematographically, as it were, how the world has treated its debtors in the past and what the saner men of different ages thought about it at the time. in this way the man in the street of to-day will have the material for forming a sound judgment on the question of what we should do with the poor debtor. and to begin with the old testament. let us remember with gratitude the remarkable action of elisha in the matter. elisha went the length of performing a miracle to pay the bailiffs out. there are many poor widows in the mean streets of our own cities looking down the road for the elisha of to-day who cometh not. miracles do not happen nowadays; people don't do such things. still it is interesting to know that there was imprisonment for debt in elisha's day, just as there is now--for the poor and only for the poor--and it is encouraging to know what elisha thought about it. what happened was this:-the county court bailiffs of the county court of israel, holden at samaria, went with a body-warrant to seize the two sons of a poor widow on behalf of a creditor of her late husband, just as they might do to-day. fortunately, the deceased had been a servant that did fear the lord, and elisha, hearing of the trouble, went down to the house, and in that simple, kindly way that the dear old prophets had of putting little troubles straight for members of their congregations and also no doubt to show the contempt he had for the proceedings of the county court of samaria, sent the widow out to borrow empty vessels of her neighbours. these he miraculously filled with oil of the best, and the only pity of it was that there were no more vessels to fill, for elisha was in form that morning, and was sorry to stop. when it was over he said to the widow: "go sell the oil and pay thy debt and live thou and thy children of the rest." i am very fond of that story. i like to believe it really happened. i wish it could happen to-day, for there are many poor women in much the same straits as that poor widow. i have never heard the text referred to in churches and chapels, and i am not surprised. a minister who preached about it would have to explain that he could not do miracles of that kind himself, and if he were to do the next best thing and preach about the iniquity of imprisonment for debt straight from the shoulder--as i am sure elisha would have done--the respectable credit draper, the pious grocer, and all the noble army of tally-men would get up in their pews and walk out of his church or chapel in disgust. the days of miracles are past, but if it was worth while for a holy man like elisha to show what he thought about imprisonment for debt, by means of a miracle, surely, after all these ages, we might have improved that particular piece of barbarism off the face of the earth. but no. the poor are worse off now than they were then. the bailiffs come for their bodies on behalf of their creditors still. and they look down the road in vain. there is no elisha. and when you come to the new testament the matter is laid down even more clearly. matthew vi. 12 has the actual words of our lord's prayer to be, "and forgive us our debts as we also have forgiven our debtors." if the forgiveness of our debtors is a condition precedent to our own forgiveness, most of us are in a parlous state. but is it too much in this christian country of ours to suggest that, even if the highest ideals of the master are beyond our attainment, we need not insult our belief by continuing a barbaric pagan system of cruelty which has been singled out for special disapprobation by the word that we cannot shut our ears to? you remember the parable of the king that took account of his servants which matthew sets out in his eighteenth chapter. how a servant owed the king ten thousand talents and, as he had not wherewith to pay, his lord commanded him to be sold, and his wife and children, and all that he had, and payment to be made. note that in those days the wife and children were actually sold into slavery. we do not do that: we remove the bread-winner, only, to gaol and care for his wife and children in the workhouse. it is encouraging to find this much reform after nineteen christian centuries. the servant, you will recollect, pleaded with the king, saying, "have patience with me, and i will pay thee all." debtors have not altered much since that date, and the text has a familiar ring in the ears of a county court judge. the lord of that servant, being moved by compassion, released him and forgave him the debt. this is important to remember, for the servant being forgiven his debt was without excuse for his subsequent contemptible conduct. and, indeed, i have often found that men who have been most leniently treated in their own failures by those in a better position, are themselves most greedy in extorting the uttermost farthing from their smaller victims. speaking generally, it is not the most desirable class of trader that makes use of the debt-collecting system of the county court. the servant of the parable was the meanest of curs. he "went out, and found one of his fellow-servants, which owed him a hundred pence: and he laid hold on him, and took him by the throat, saying, pay what thou owest." here, again, we may flatter ourselves on our superior procedure. if this had happened in lambeth, the servant would not have been allowed to go for his fellow servant with such jubilant audacity. nowadays everything would be done in legal decency and order. the debt being for a hundred pence, and, therefore, being within the jurisdiction of the county court, a summons would have to be issued, fees would have to be paid to the treasury and the court officials, and a lot of money spent and added to the debt before imprisonment followed. still the rough-and-ready methods of the earlier centuries were certainly cheaper, and the result was much the same. for we read that, though the fellow-servant pleaded in the same formula, "have patience with me, and i will pay thee," the creditor of the hundred pence stood firm for his rights and cast his fellow servant into prison till he should pay his due. and if this had been a repertory drama and not a parable, the curtain had fallen on that scene and one would have come away depressed with the abjectness of human nature and with a cold feeling that the world was a drab uncomfortable place. but the ancient dramatic stories always have a happy ending. there is more of the spirit of the old adelphi than of the gaiety theatre, manchester, about the parables. the lord hears of his servant's scurvy behaviour and, to the delight of all sane men of child-like and simple faith, the wicked servant is delivered to the tormentors till he shall pay all that was due. i confess that my legal mind has been haunted with the thought that, the lord having forgiven the servant his debt, it was rather a strong order for him to go back on that forgiveness. doubtless there was no consideration for the forgiveness, it was _nudum pactum_, or there may have been an implied contract that the servant should do unto others as he had been done by, but i rather expect the lord and his advisers only considered the justice of their act rather than its technical legal accuracy. but one thing we can rejoice in. there is the dramatic story, and no one can construe it into approval of any form of imprisonment for debt. i know that many who do not regard the bible as an authority will not be troubled about this testimony; probably many more who do read the scriptures for guidance will be pained that anyone should make use of holy words to upset a system that they find so useful in the commercial weekdays of life. moreover, some will shake their heads and remind me that "the devil can cite scripture for his purpose." that is true enough. but it will be a very clever devil who can cite any scripture in support of section 5 of the debtors act, 1869. and i will pass away from scriptural precedents to others which, though to me they possess a less compelling sanction, will perhaps have more weight with men of the world. in the history of ancient greece the debtor played an important part. let me remind you what the archon did. the particular archon i refer to is solon. solon knew all about imprisonment for debt, and his evidence on the subject is most convincing. it is well to remember, too, that solon was a business man--i have this from grote, who got it, i fancy, from plutarch. exekestides, solon's father, a gentleman of the purest heroic blood, "diminished his substance by prodigality," and young solon had to go into business; in modern phrase, he "went on the road," and saw a lot of the world in greece and asia. i mention this because i am always told that if i knew anything of business i should understand the necessity of imprisonment for debt. solon was emphatically a business man. solon was also a poet, which perhaps was his best asset as a social reformer, but he was no sentimentalist if, as some say, when he was a general attacking a rebellious city he ordered the wells to be poisoned to put an end to the strife. when solon in a time of grand social upheaval was made archon, he found the poorer population, including particularly the cultivating tenants, weighed down by debts and driven in large numbers out of freedom and into slavery. let me set down the condition of things in the careful words of grote lest i appear to exaggerate. "all the calamitous effects were here seen of the old harsh law of debtor and creditor--once prevalent in greece, italy, asia, and a large portion of the world--combined with the recognition of slavery as a legitimate status, and of the right of one man to sell himself as well as that of another man to buy him. every debtor unable to fulfil his contract was liable to be adjudged as the slave of his creditor, until he could find means either of paying it or working it out; and not only he himself, but his minor sons and unmarried daughters and sisters also, whom the law gave him the power of selling. _the poor man thus borrowed upon the security of his body_ (to translate literally the greek phrase) and upon that of the persons in his family." the words i have italicised are interesting as exactly defining the principle of all imprisonment for debt. a wage earner to-day who runs up bills with tally-men and grocers obtains credit upon the security of his body. i have heard from the wife of a poor debtor an apt but unconscious translation of the latin maxim, _si non habet in aere luat in corpore_. her allegation was that a tally-man had said to her husband, "if i canna 'ave yer brass i'll tek yer body." in the north country, among the more old-fashioned bailiffs and their victims, warrants of arrest are commonly known as "body warrants." no doubt the imprisonment of to-day is different in degree from the slavery of debtors in greece five hundred years before christ, but it is absolutely the same in principle, founded on the same idea, and worthy to be maintained or abolished by the citizens of this state for the same reasons that were found good by the citizens of athens. thus it is that it is worth while finding out what solon thought about it. i wish solon's tract, "what the archon saw," had come down to us, and we could have quoted actual instances of the wickedness of imprisonment for debt in his day, but at least we know what he thought of it, and, what is really important to us, what he did. solon had a pretty wit in titles. he called his bill _seisachtheia_, or the shaking off of burdens. the relief which it afforded was complete and immediate. it cancelled at once all those contracts in which the debtor had borrowed on the security of his person or his land; it forbade all future loans or contracts in which the person of the debtor was pledged as security; it deprived the creditor in future of all power _to imprison_ or enslave or extort work from his debtor, and confined him to an effective judgment at law, authorising the seizure of the property of the latter. this was indeed a shaking off of burdens. for here we find, not only was imprisonment for debt abolished lock, stock and barrel, but a law enacted protecting the land of the cultivator from being seized for debt. this is akin to what in some of our colonies is called a homestead law, and i have always contended that in the interests of the state the few sticks of furniture which a poor man and his wife and children always call "the home" should be protected from arrest for debt, just as the bread-winner's body should be exempt from imprisonment. i could have got along with solon. and when one is told the old tale that continues to be put forward by those who wish to retain imprisonment for debt--that the workman will starve for want of necessary credit and that trade will stagnate owing to timid creditors refusing to trade--let us remember with pleasure that that was not what the archon saw as a result of his beneficial measures. on the contrary, the testimony is overwhelming that there grew up a higher and increasing respect for the sanctity of contracts. the system of credit-giving, and especially of moneylending, assumed a more beneficial character, and "the old noxious contracts, mere snares for the liberty of a poor free man and his children"--the flat-traps of to-day--disappeared. what happened was what will happen here when we abolish this degrading system of giving credit on the sanction of body warrants. what happened in athens was that, although there were some fraudulent debtors, the public sentiment became strongly in favour of honesty, and it is agreed that the prophecies of solon's failure were not made good, and "that a loan of money at athens was quite as secure as it ever was at any time or place of the ancient world." furthermore, it is acknowledged by the better authorities that what i expect and believe will happen in the mean streets of england when imprisonment for debt is abolished, actually did happen in athens, and, to use grote's words, "the prohibition of all contracts on the security of the body was itself sufficient to produce a vast improvement in the character and conditions of the poorer population." of course, i am not putting forward "what the archon did" as an example to the archons who didn't of to-day. the theory of evolution teaches us that in two thousand years the solon type must have improved, and that the solon that we see in the latter-day armchair of state must be a far, far better thing than anything that obtained in ancient greece. possibly, the world having no use at all for solons, the type is extinct. be that as it may, i am more than ever puzzled since i have studied the records of what the archon did. if the world had got so far in the question of imprisonment for debt five hundred years before christ, why are we where we are now nineteen hundred years since the master set before us the true doctrine of forgiveness of debts? the roman laws against the debtor upon which we have ultimately modelled our own were equally harsh and would nearly satisfy the moneylender or tally-man of any age. upon notice, a debtor had thirty days in which to discharge his debt. if he did not do so his creditor carried him off in chains. note, however, that he was not a slave, but his creditor had to keep him in chains for another sixty days, during which time he had to bring the debtor out on three successive market days to give his friends an opportunity of paying up and releasing him. the creditor had also to provide the debtor with a pound of bread a day. in these socialist days we take that burden off the creditor's shoulder and a generous state feeds the imprisoned debtor at the cost of the community. on the third market day, if the debtor's friends were still backward in coming forward, the debtor was killed and thrown into the tiber, or his body was divided among his creditors, which was the only dividend they received. if there was any market for him he was sold into slavery. it seems that in the very early days of ancient rome each creditor had a right to carve his pound of flesh from off the debtor. portia's point against shylock: ... nor cut thou less, nor more, but just a pound of flesh:... was foreseen and provided for in the drafting of the twelve tables. it is enacted in the third table: "after the third market day the creditors may cut their several portions of his body: and any one that cuts more or less than his just share shall be guiltless." unless, therefore, the laws of venice amended or repealed the twelve tables, shylock's case seems to have been wrongly decided. what is at least curious is that the ancient idea of debtor and creditor law embodied in those ancient statutes should be the foundation of one of the most popular plays in the english language. some good people have found a difficulty in understanding shylock's outlook on life and cannot comprehend why a creditor should enjoy killing a debtor. but, after all, it is equally strange why a creditor should take pleasure in imprisoning a debtor. yet to-day thousands of debtors go to prison because they have not means to pay their creditors. the difference between killing and imprisoning a debtor is a difference in degree only. the principle is the same. the object of the creditor is, perhaps, in the first place, to get repaid his debt; when he finds this is impossible the death or imprisonment of the debtor merely satisfies his desire for revenge. the ancient romans were, in one way, a more practical people than ourselves, for they threw the costs of this revenge direct upon the creditor, whereas we throw it upon the taxpayer. if this particular impost were made upon me in any direct manner it would almost persuade me to be a passive resister. i am glad, however, to remind you that in historical times at all events the romans did not carry out the law of the twelve tables to its uttermost cruelty. the popular way of dealing with a debtor seems to have been to sell him into slavery and then to credit him in your ledger with the price he fetched--less the out of pockets--much as we do to-day when we issue execution against chattels. in later years the slavery of debtors was abolished and imprisonment much like our own was substituted, but the romans never had a lawgiver as wise and powerful as solon to get rid of imprisonment for debt altogether. and the roman imprisonment for debt in some shape or other runs through the social systems of the middle ages, being harsh in one place and less cruel in another, and mitigated at one date and aggravated at another. always we find a feeling among the more thoughtful of mankind that it is in itself a harsh and cruel system and a desire among at least a few to help the victims of it in their distress. fynes moryson, who was in rome in 1594, tells us of a practice which then prevailed in the pope's state which might be introduced into protestant england to-day in a lively belief that it would be in accordance with the tenets of the christian faith and a certain hope that it would relieve many a poor wretch in misery and despair. "if," he writes, "a man be cast into prison for debt, the judges after the manner visiting frequently those prisons, finding him to be poor, will impose upon the creditor a mitigation of the debt, or time of forbearance, as they judge the equity of the case to require, or if by good witnesses they find the party so poor as really he hath not wherewith to pay his debt they will accept a release or assignment of his goods to the creditor and whether he consent or no will free the debtor's body out of prison." at all periods of time we find the same uneasiness in the minds of rulers and governors about keeping a poor man in prison for debt when he cannot pay. the governors of english gaols will tell you that 90 per cent. of the debtors lying in prison to-day for civil debt, rates, maintenance or bastardy orders and small fines are too poor to pay. yet here in england our legislators cannot even get as far as the papal state of the sixteenth century in an exercise of charity to the poor and distressed. pending the abolition of imprisonment for debt, a home office visitation with power to release the really unfortunate on the lines of the practical experiment which fynes moryson wrote home about three hundred years ago would be something to be going on with. this, however, is a matter which is concerned with methods of reform. but, before we deal with amendments of the law, it is necessary to trace clearly and accurately the evolution of imprisonment for debt in england, in order that we may understand how and why it exists to-day as a law that can only be put in force against the poor. chapter iii of imprisonment for debt in england oh let me pierce the secret shade where dwells the venerable maid! there humbly mark, with reverend awe, the guardian of britannia's law; unfold with joy her sacred page, the united boast of many an age; where mixed, yet uniform, appears the wisdom of a thousand years. sir william blackstone: "the lawyer's farewell to his muse." i am honestly sorry to have to inflict a chapter of legal history upon anyone, but for the life of me i do not see how the imprisonment for debt of to-day can be intelligently appreciated until one knows something of its lineage. to begin with, it may be news to some folk to learn that in the merry days of henry iii. there was no imprisonment for debt at all. if godfrey the garlic seller or hogg the needier owed rose of the small shop a tally for weekly purchases and would not pay, rose, poor woman, could not get an order to send them to gaol. yet there is no evidence that trade was thereby injured, or that there was any difficulty in rose regulating her credit-giving, or in godfrey and hogg and the rest obtaining as much credit as they deserved. the first thing to remember is that england at one period had no use for imprisonment for debt. it occurs to me that, if i can persuade the man in the street to understand how imprisonment for debt began and continued until it became a great public scandal, and show how in the last hundred years little by little its evil influence and extent have been abated with good results, we shall be making great strides towards the restoration of that liberty in england which in the matter of debt was the citizen's privilege in the days of henry iii. but the reason for the absence of imprisonment for debt in these early feudal days is not so satisfactory to modern ears as one could wish. lord chief baron gilbert, that crisp and accurate lawyer of the eighteenth century, puts it very clearly when he says: "but there was no capias for the debt or damages of a common person, because the party having trusted him only with personal things his remedy was only on the personal estate, and the king had the interest in the body of his subject; and the lord in his _feudatory_ or _vassal_ to be called out to war or to labour for him; and therefore none but the king could imprison him." and this seems clear, that the reason a creditor could not imprison a debtor was because in those days a debtor had only a limited interest in his own body. the fighting part of his body belonged to the king, the labouring part of his body belonged to his lord, and the king and the lord were not going to have their rights and property in his body interfered with because the subject and vassal had been foolish enough to run into debt with another subject and vassal who wanted his money. you will, indeed, find that the whole history of the law and the poor seems to be a long struggling of the poor out of slavery and serfdom where they had a certain guaranteed amount of food and protection from their masters, similar in nature to that given to the ox or the ass or anything that was his, into a state of freedom, so-called, in which they had given up their rights to food and protection without getting any certain rights of wages or the equivalent of wages in return. we are in the middle of adjusting these things to-day, and the story of imprisonment for debt, and why it is retained at the present only for poor people, is a page in the curious english history of social progress. as long as the debtor was a vassal having certain duties to perform for the lord of the manor his lordship thought him as much worth preserving as the game or venison within the curtilage of his park. it was for this reason you could not take his body in execution. as you may know, when you obtain a judgment in a court of law the next thing to do is to proceed to execution; that is to say, the judge having given you judgment a writ is granted to you whereby you get the sheriff to take your part and seize for you either the goods or body of your opponent. the history of these ancient writs is full of amusing folklore for those who love such things, and we still call them by their old dog-latin names, not for any scientific purpose, but for much the same reason that the doctors write their prescriptions in hieroglyphics and priests mumble latin or english--but always mumble--in a cathedral. it is the essence of a profession that it should be mysterious and incomprehensible, otherwise the common herd would not respect it and pay its fees. and, prior to henry iii., if you got a judgment against your neighbour for money owing by him to you, your remedies of execution were these. by a writ of _fieri facias_ the sheriff could be commanded to seize the goods and chattels of the debtor in satisfaction of the debt. this dear old writ, the _fieri facias_, affectionately alluded to as the _fi. fa._ by attorneys, bailiffs and others who have the handling of the fellow, is still with us. i agree that without him the delivery of judgments in courts of law would be mainly of academic and rhetorical interest. for as gilbert--not william schwenck, but sir geoffrey the chief baron--puts it, if a party trusts a man with personal things, then his remedy should be against the personal things of the debtor, and this seems a principle of common law and common sense as just as it is homeopathic. as our latter-day gilbert would have put it, "the punishment fits the crime." but when you come to our other writ, the _capias satisfaciendum_, or "_ca. sa._" as it is written in the absurd legal shorthand of the day, or "body warrant" as it is still termed with brutal accuracy in lancashire, then you will find that in old days different considerations prevailed. you were not allowed to seize a man's body for debt, but only his goods. and i am glad to find myself setting forth high tory doctrine and asking my fellow citizens to return to the earliest common law of the land, for this seems clear that originally, unless the action was for trespass _vi et armis_, which was in the nature of a criminal matter, there was no remedy against the body of the defendant. the _ca. sa._ whereby the sheriff was ordered to seize the body of the defendant in execution could not issue at the instance of a successful plaintiff at common law. in other words there was no imprisonment for debt. our forefathers recognised what we seem to have partially lost sight of, that as credit could only be given commercially to a man with goods, it was fair and just that his goods should be seized if he did not carry out his contract. but for reasons of their own--no longer sound as reasons to-day, it is true--they refused to allow a man to mortgage his body for goods. body warrants only issued against criminals or in actions of a semi-criminal character. it will be reassuring to those conservative minds who fear the abolition of imprisonment for debt to remember that there was a time in england when it did not exist, and that if we abolish it to-day we are working on old-fashioned and constitutional lines. imprisonment for debt has not the sanction of antiquity, and a desire to sweep it away must not be put down to the wild and wicked desires of a political futurist architect, but rather to the pious hopes of one who is in deep sympathy with the best features of the norman and early english social institutions of his native land. to tell the long story of the statutory evolution of imprisonment for debt from the statute of marlbridge, 52 henry iii. c. 23, to the act for the abolition of imprisonment for debt--so-called--of 1869, would be out of place here. it is enough to know that little by little the principle of the right of one man to seize the body of another in an execution for debt became recognised by statutes and by custom until the wrongs it caused reached such a scandalous pitch in the eighteenth century that some reform of it became inevitable. the more modern contests over its partial mitigation from time to time throw a direct light on the differences of opinion upon the matter of to-day. it will be seen that there have always been two schools of thought among politicians. one school was clear, that to tamper with imprisonment meant ruin to trade; the other held--what i take to be the true gospel--that a man ought not to be allowed to obtain credit on the security of his body. until the end of the eighteenth century the harshness and cruelty of imprisonment for debt received little attention. the history of the debtors' prisons, the fleet, the king's bench, the marshalsea and the city compters, are pages of the story of our law that no one can read to-day without shame. yet the howards and frys who called attention to the facts met with just as little encouragement and attention from the rulers of the country as anyone does to-day who desires to put the coping stones on the completed work, the foundations of which were laid by these great reformers. the extraordinary results that took place through imprisonment for debt as it existed in the eighteenth century are surely beyond parallel in any legal system. the plays and fictions of the time are full of instances. you remember when roderick random finds himself in the marshalsea he meets with his old friend jackson and asks him about his _amour_ with the lady of fortune: "you must know," replies jackson, "that a few days after our adventure i found means to be married to that same fine lady you speak of and passed the night with her at her lodgings, so much to her satisfaction, that early in the morning, after a good deal of snivelling and sobbing, she owned that far from being an heiress of great fortune she was no other than a common woman of the town who had decoyed me into matrimony in order to enjoy the privilege of a _femme couverte_, and that unless i made my escape immediately i should be arrested for a debt of her contracting by bailiffs employed and instructed for that purpose." upon hearing this poor jackson escapes and serves for a few months as surgeon of a sloop, but, on his return, is arrested for a debt of his wife's and comes to live at the marshalsea on half pay. nor is there anything wildly improbable in the story. smollett had been in a debtor's prison himself, and very likely had heard the story at first hand, for many equally extraordinary stories in real life are well authenticated. there was the strange case of the lady who married a man under sentence of death to get rid of her debts, and was greatly upset when her husband was respited and sent to the colonies. but perhaps one of the most curious stories is that of the dear old blind spinster of clerkenwell, with a fortune of a thousand pounds, who took a deep interest in the career of an industrious shoemaker's apprentice and made him presents of clothes and a watch and lent him ten pounds. when he was out of his articles and was about to go home to leicestershire and settle down there, he was arrested for the loan and the attorney's bill of costs and the "garnish" at the lock-up to which he was taken. after a few days the kind-hearted lady visited him and offered him three alternatives. he might pay the money; go to the debtor's prison for the rest of his life; or marry her. he chose the last alternative and was kept in the sponging house until his wedding day. these stories are but a sample of the iniquities that were going on in that day, and yet then, as now, the feeling of legislators and business men seems to have been that it was dangerous to trade and business to sweep this horrible system away, so blind are people to the wrongs they see every day, so dull are ears to cries of pain and distress that are continuous and never cease. it would seem as though the conscience of mankind can only be startled into action by some catastrophe, some tragedy obviously brought about by bad government and bad laws, and not until then will it translate its knowledge of evil into demand for reform. the tragedies of imprisonment for debt occurred, but they took place behind closed doors and the world only heard of them by slow degrees. at length, however, the constant repetition of the miseries of the poor debtors who languished in prison, wasting their lives and eating out their hearts in despair, began slowly to convince the man in the street that there really was something wrong with the world and that the cup of human misery of some of their fellow creatures was slopping over into the saucer of despair. timid reformers began to think something might be done. the arguments then, as now, were all one way, but then, as now, there was no one to listen to them. good men had raised their voices to point out the wrong-doing that was going on, and the unnecessary wretchedness that was being caused, but nothing much came of it. there were a few desultory and ineffective movements towards discharging poor debtors, but the matter did not greatly interest mankind, and there seemed to the eighteenth century mind no very clear reason why a debtor once in prison for debt should ever be released. to-day, in the same way, it is difficult to persuade the average citizen that there is any injustice in a debtor being sent to prison for debt. the attitude of mind about the thing is not greatly altered, though happily the amount of injustice and wrong-doing has been lessened. it was not, indeed, until the beginning of the reign of queen victoria, a time of great hope for the poor and distressed, a period which has not inaptly been called "the springtime of social reform," that any practical movement was made. i myself keep march 31st as the birthday of the movement for the abolition of imprisonment for debt, but anyway it is a red-letter day in the history of english literature and worthy of great honour. for on that day, in the year 1836, the first number of "pickwick," appeared and there is no doubt that the account of the fleet prison in that volume has made it the popular text-book of legal reform in these matters. if "pickwick" in 1836 was not the _causa causans_ of lord cottenham's bill to amend the law of insolvency which was introduced in december, 1837, there is no doubt that dickens' stories of the cruelty of imprisonment for debt supplied the motive power necessary to pass it by rousing the public conscience to insist upon something being done. the point of particular reform aimed at by the bill was to abolish what was called arrest on mesne process. it is an absurd term, and it was a still more absurd thing. the wonder is that it had survived as long as it did. mesne process, translated into english, means middle process, and the idea was to lock a defendant up in the middle of the trial and keep him there in case it turned out at the end of the proceedings that he owed the money. it was as popular with the sharks of the eighteenth century as the present imprisonment is with the moneylenders and tally-men of to-day. any person who would make an affidavit that another owed him twenty pounds or more could lock him up pending the trial and, unless the victim could find the money and pay it into court, he remained in the sponging house until the trial came on. harry warrington was served so, if you remember. two gentlemen came from over the way, "one of them takes a strip of paper out of his pocket and, putting his hand upon mr. warrington's shoulder, declares him his prisoner. a hackney coach is called and poor harry goes to sleep in chancery lane." certainly harry owed the money and had been reckless and extravagant enough, but even then the method of arrest strikes us to-day as a little high-handed. nor was it always made use of with honesty. to bold rascals it was a very perfect machine for the wickedest blackmail. an affidavit of debt--and eighteenth century affidavits were no nearer the truth than those of the present century--was all that was required, and if in the end the affidavit was found to be false, the only remedy was to prosecute the swearer of it--if you could find him. a case that lord denman mentioned in the debates in 1837 created a good deal of uneasiness in the public mind. a certain portuguese nobleman, the duke de cadaval, on landing at falmouth, or when he was residing at plymouth, was arrested on a pretended debt, thrown into prison, and obliged to pay a large sum of money to procure his release. he afterwards recovered in an action for malicious arrest heavy damages, but he never received a penny of them, nor is there any record that the false witnesses were punished for perjury. there are many stories of this kind, and it was an obvious result of the system of arrest on mesne process. one would have thought that there would have been no difficulty about abolishing a legal machinery that brought about such injustice, but, in truth and fact, it was quite otherwise. indeed, the people who wanted to abolish the excellent and business-like system were regarded as very pestilent and turbulent busy-bodies by the average citizen. another incident of imprisonment for debt at this date was that if a creditor preferred to issue a _ca. sa._ to a _fi. fa._ and took the body of the debtor in preference to the property of the debtor, he thereby discharged the debtor. if, therefore, the debtor preferred imprisonment to paying his debts, the law afforded the creditor no other remedy. there were instances of debtors remaining in prison for over twenty years well able to pay their debts, but preferring to live in luxury within the rules of the prison. _re pickwick_ is perhaps the popular leading case on this point. but whilst we remember with pleasure how the law enabled our dear friend to outwit for a time those wily attorneys dodson and fogg, do not let us forget the terrible sights he saw in the fleet. the chancery prisoner, the fortunate legatee whose lawyers had had the thousand pounds legacy, and who was in the fleet, mending shoes for twenty years because the loom of the law had woven a shroud of costs round him and buried him in prison--he was no fiction. his heart was broken when his child died and he could not kiss him in his coffin. there he remained living a solitary lingering death, lonely amid the noise and riot of the fleet, until god gave him his discharge. this and many another case was before my lords and known to the intelligent commons when the question of the abolition of arrest on mesne process came up for discussion in 1837. it is to lord cottenham, as i have said, that we owe the statute which, to use mr. atlay's phrase, "abolished the bane of mr. micawber's existence, imprisonment for debt on mesne process." nor must it be thought that it was done without a struggle. lord lyndhurst said, and no doubt truly, that, judging from the petitions, he should be within the truth in saying that the bill was very unpopular. the petitions were at least ten to one against the bill. there was no more enthusiasm about mitigating imprisonment for debt then than there is to-day. the history of these things is always the same; the traders objected to the abolition of imprisonment for debt, the newspaper proprietors strenuously opposed the reduction of the stamp acts, the doctors fought against national insurance. yet, when the horrible thing is done, we find them smugly prospering on the reform. lord brougham, who from the very first had always held instinctively the true faith in these matters, pointed out to a reluctant house how credit was imprudently given to the real injury of the customer who is induced to buy what he cannot pay for, and to the injury of those who do pay what they do owe, but who pay the dearer in proportion to the bad debts which the tradesman is led to let others contract with him. further, he emphasised the wrong done by clothing an insolvent person with an appearance of credit by lending him more goods which serve as a bait or decoy to others that have not yet trusted him. he laid down the principle that debt should never be treated as a crime and still less as a crime to be punished at the sole will and pleasure of the creditor, and eloquently called upon the peers to wipe out this foul stain from our civil code. arrest on mesne process was abolished, not ungrudgingly it is true, but it came to an end, and a commission was set up in 1839 to inquire and report upon the whole system of imprisonment for debt. this commission ultimately reported in favour of abolition. in 1844 another bill was introduced to distinguish between cases where it could be shown that the debtor was an innocent fool and not a culpable contumacious defrauder. it was not of much avail as a social reform, but may be fairly described, perhaps, as a worthy effort. the brightest reading in its history for us to-day is the debate in which lord brougham, with savage eloquence, rubs it in--the modern slang expresses brougham's method so accurately--and jeers at the opponents of imprisonment for debt now that all their cassandra prophecies over the abolition of imprisonment by mesne process have proved themselves to be worthless. abolition of this system had not diminished credit, and had not raised any difficulty in citizens obtaining credit. then, as now, these were the trade arguments against reform solemnly used by business men, officials and lawyers, and though, on each occasion when the reform has taken place, they have been found to be the hollowest nonsense, yet they are repeated to the reformers of to-day with the same pompous effrontery with which they were offered to lord brougham. we now come to 1869, in which year the present state of the law was created, and it is this law which seems to me so unjust to wage earners and poor people who are in debt, placing them as it does in conjunction with the bankruptcy laws in such a wholly inferior position to that of the well-to-do citizens. in order to understand the exact legal position it is, i fear, necessary to deal with the matter in some little detail. the intention of the legislature at the time seems to have been right enough. it was desired, no doubt, that a fraudulent debtor should be punished and that an honest debtor should not. if a means could be invented to carry out this principle no one would utter a word against it. a fraudulent debtor is, i take it, a man who, having ample means over and above the reasonable necessities of himself and his family, conceals them or places them in fictitious names and then defrauds his debtor and refuses to pay him. i should be in favour of more stringent measures being taken against the fraudulent debtor, for one meets him every day, well-to-do and smiling, with a bill of sale on his furniture and everything in his wife's name. but he is the curled darling of the law. he makes use of the law to protect himself and his frauds, and the debtors act, which was intended to abolish imprisonment for debt, has no terrors for him, whilst under its provisions hundreds of weekly wage earners are imprisoned. as sir george jessel said, the real intention of the debtors act, 1869, was to abolish imprisonment for debt for honest debtors and to retain the right of judges to punish fraudulent debtors. many of the sections of the act are framed, and to some extent assist, in the excellent aim of making it hot for the naughty and wicked debtor who has cheated or defrauded his creditors. why is such a person punished? asks the master of the rolls. i give the answer in his own words. "simply because he is a dishonest man. he need not perhaps be called a thief in so many words, but he is a man who takes or keeps money belonging to other people, and he is punished accordingly." instances of such are defaulting trustees and similar misdemeanants, and, so far as the act provides for their punishment, we have no quarrel with it. now no one would contend that the system of imprisonment for debt as carried out in the county courts is a system directed in the main against dishonest men. improvident, careless, foolish and childlike these poor defendants in the county court may fairly be described; but if a day of judgment audit could be carried out, and a balance struck on the item of "honesty" as between the working-men debtors and the class of traders who give them credit, i make little doubt which class, as a class, would show the better figures. no, we do not imprison in the county court for dishonesty _per se_; dishonesty may or may not be a feature of any particular case, but it is not an essential. the order for imprisonment is made under section 5 of the debtors act, 1869. that is the tally-man's charter. i am sorry to bore anyone with all these sections and statutes, but there is such a lot of inaccuracy written and talked about the matter that it is best to set down the actual enactment. we must remember then that the act, being an act for the abolition of imprisonment for debt, had begun by enacting in the fourth section that "with the exceptions hereinafter mentioned no person shall be arrested or imprisoned for making default in payment of a sum of money." these last words state quite clearly the true principle of what the law ought to be. unfortunately for the poor the special exception made for them has only too truly proved the rule. the opponents of abolition were but too successful in their endeavours to make inroads upon the thoroughness of the proposed reform, and one of the exceptions was called "a saving power of committal for small debts." it might have been better described perhaps "as a saving power to imprison poor debtors." this is the famous section 5 of the debtors act, 1869, over which so much controversy has since arisen, on the working of which two important commissions have sat and reported, and under which we may proudly claim to be one of the last civilised countries that clings to a system of imprisonment for debt. it is necessary to set out the section at some length, for it has a googlie element about it and is not so innocent as it appears on the surface. it first sets out "that any court may commit to prison for six weeks any person who makes default in the payment of a debt or instalment due in pursuance of a judgment." that, of course, is plain sailing imprisonment for debt. then, however, follows the sub-section--i again apologise for troubling you with all this, but it is really a good citizen's duty to understand it--which causes all the worry. it is enacted in sub-section (2) "that such jurisdiction shall only be exercised where it is proved to the satisfaction of the court that the person making default either has _or has had_ since the date of the order or judgment the means to pay the sum in respect of which he has made default and has refused or neglected or refuses or neglects to pay the same." it is the words that i have printed in italics that hit the poor man and the weekly wage earner, for of course it is generally provable that, although he has no present means to pay a debt, he _has had_ since the judgment means to pay which he has spent on the maintenance of his family, or, if you will, on beer or tobacco, or picture palaces, or, in a word, as good solvent middle class people would say--improvidently. the further matters enacted are all sensible enough, granted you approve of the main principle of imprisonment for small debtors. they deal with proof of means of the person making default, allowing such proof to be given in such manner as the court thinks just, and for these purposes the debtor and any witnesses may be summoned and examined on oath according to the prescribed rules. the other material points of the section are that a county court judge must exercise his jurisdiction in open court, he may order the debt to be paid by instalments, he may also make continuous committals on each unpaid instalment, he may vary and rescind the order, and the imprisonment when suffered does not distinguish or discharge the debt or other remedies of the creditor. the debtor can take his release in payment of debt and costs. anyone who studies this act of 1869 and comes to the conclusion that this system is anything less than imprisonment for debt, and not imprisonment for fraud, must, i think, be driven to argue that the men who drafted the act called the act an act for the abolition of imprisonment for debt, called section 5 a saving clause for continuing imprisonment for small debtors in certain cases, and did not understand their business. as a matter of fact they knew their business very well indeed, and they carried it out faithfully and well. what happened undoubtedly was this: parliament as a whole was out to abolish imprisonment for debt. there were a lot of old-fashioned folk then as now, who wanted to retain it. compromises were made. it was agreed that there should be abolition, it was also agreed that there should be exceptions. the exceptions readily granted were cases of fraudulent trusteeship and the like. this was not enough for the old gang, so the promoters of the reform threw in poor persons owing small debts. the poor had as few friends in parliament as the fraudulent and they were huddled together into the same bundle of exceptions as a sop to the opponents of the bill. when folk describe our present system in the county court as anything other than imprisonment for debt, a legitimate offspring of its noble norman ancestor _capias ad satisfaciendum_, they do it in ignorance of the legal and political history of the debtors act, 1869. i should like to have set out much of the debate in the house of commons on the second reading of this bill. sir robert collier, the attorney-general, openly expressed his regret that imprisonment for debt was going to be retained in the county courts, and several members spoke wisely about the hardships then inflicted on the poor and the undesirability of continuing them. but the following extract from a speech of mr. mcmahon shows that no one at that time was under any delusion about what was going to be done. "when," he said, "arrest on mesne process was abolished shortly after the passing of the reform bill it was then said that credit would be disturbed, and that traders would not be able to carry on their business. but these forebodings were purely imaginary, and in the same way he believed no evil would attend the good that must undoubtedly result from the final abolition of imprisonment. if, however, they allowed the rich man to escape under the bankruptcy system they ought not to admit the poor man to be liable to imprisonment, for by so doing they would certainly be open to the charge of having one law for the man in broadcloth and another for the man in corduroys." here the warning is clearly given by a man on the spot, that what they were about to do was to set up a system unfair to the poor, and there was really no doubt in the minds of any of the legislators of the day that they were deliberately retaining imprisonment for debt for the poor. i want to insist on this point because one of the stumbling blocks in the way of reform to-day is the strange belief, fostered by the tally-man and his friends, that in some mysterious way imprisonment for debt has really been already abolished and that the working classes really go to prison for contempt of court or some other reason. there is no truth in this whatever. the attorney-general who introduced the debtors act, 1869, may surely be credited with understanding what it was intended to do. he knew well enough that his bill was going to abolish imprisonment for debt for the rich and retain it for the poor. he pointed out that he was making bankruptcy cheaper and more stringent. it would be obviously absurd, he said, to make a day labourer a bankrupt, and that brought him to the very difficult question of county court jurisdiction. at that time the county court had a jurisdiction to punish for fraud as an incident of debt and also to imprison for debt. he proposed to take away the jurisdiction to imprison for fraud and to leave fraudulent debtors, both rich and poor, to the criminal courts. "but then," he continued, "came the other question of county court imprisonment where a man was able to pay his debt, but would not do so. he did not regard that imprisonment as a mere punishment for a past offence _but it was a process of imprisonment for the purpose of compelling the payment of a debt_, and it was a process very analogous to the principle of the bankruptcy law." he came to the conclusion, after further argument, "that this power of imprisonment in the one case he had mentioned must be retained." when an attorney-general in 1869 brings in a bill to abolish imprisonment for debt and deliberately tells us that he retains one class of imprisonment for debt, it is inconceivable why people to-day should strive to make out that the system we are working is not imprisonment for debt, but something else. unless it be that the advocates of imprisonment for debt know in their heads that it is an evil, out-of-date system, and they have an instinct that it smells more sweetly under some other name. from 1869 to the present there has been no further reform. many hope that there never will be any, but for my part i have no doubt it will come along, not in my time, perhaps, but whenever the right moment may be. from 1869 until to-day over three hundred thousand english citizens have been actually imprisoned who have not been guilty of any crime whatsoever. they have been imprisoned mainly for poverty or, if you will, for improvidence--that blessed word that so insidiously describes in the poor that failure in economic asceticism, that lack of cold self-denial of luxury and extravagance, that absence of patient thrift and simplicity of life--characteristic features which are never wanting in the beautiful lives of those social classes above them that the poor must learn to look up to and to imitate. chapter iv how the machine works roll on, thou ball, roll on! through seas of inky air roll on! it's true i've got no shirts to wear, it's true my butcher's bill is due; it's true my prospects all look blue- but don't let that unsettle you! never _you_ mind! roll on! w. s. gilbert: "to the terrestrial globe." i fear the earth will do a lot of rolling on before we abolish imprisonment for debt, but very likely i am exhibiting a somewhat senile haste in the matter which is unbecoming. to me it appears strange that, whilst in every other science the professors of it are making earnest efforts to place the result of their studies to the credit of mankind, the law seems more incapable than theology of assimilating new ideas and getting into step with the march of time. i have no hesitation in saying that the county court, as a debt-collecting machine, is a one-horse wooden antiquity only fit for the scrap heap. if you went down to euston and found them coupling up puffing billy to the scotch express and the engine driver dissolved in tears, you would understand the kind of hopeless feeling that oppresses me every morning when i sit down to try a hundred judgment summonses. for how can they be said to be tried in the sense in which an englishman is supposed to be tried before he is deprived of his liberty. there is very little evidence, often the defendant makes no appearance and does not even send his wife to tell the tale for him. he cannot afford to leave his work and she ought not to be asked to leave her babies. the word, therefore, of the plaintiff, or, more probably, the debt collector--and many of these men, making it their business and dealing daily with the court, are far more accurate and careful than the plaintiffs themselves--this is all you have to go by. the law, as i told you, left it entirely to the taste and fancy of the judges what evidence they should receive, and though nowadays all judges honestly endeavour, i think, not to carry out the law to the full extent of its cruelty, yet naturally different men hold different views of the rights and liabilities of the poor, and so there is no sort of equality in the treatment they receive in different districts. thus we have in the working of imprisonment for debt everything that is undesirable. the liberty of the subject is at stake, but there is no right of trial by jury, such as the fraudulent bankrupt or any other misdemeanant is entitled to; the evidence on which the debtor is convicted and sent to gaol is any evidence that the judge thinks good enough, and within the limit of six weeks the imprisonment is anything that each particular judge determines. there is, of course, no appeal, and when the prisoner comes out of gaol he still owes the debt, though he cannot be imprisoned again for the same debt or instalment. the multiplicity of these proceedings is appalling. there are over a million small debt summonses issued every year and nearly four hundred thousand judgment summonses, of which about a quarter of a million are heard. what a waste of time and energy it all means. judges, registrars, solicitors, bailiffs, debt collectors, the piling up of costs and fees on to the original debt, the dragging off to gaol of an occasional debtor _pour encourager les autres_, the breaking up of some poor home, the blackmailing of friends and relations very little better off than the poor debtor himself, the squeezing of the pittance out of the bellies of the little children to keep the father out of prison--what a picture to leave on the canvas of our own generation for our grandchildren to scoff at. and the business result of it! even when the debt is paid--if it is paid--after years of waiting and hours spent coming down to the courts seeing if the money is yet paid in--or 20 per cent. paid to a debt collector to do it for you--when all is finished, would it not have been far better if you had recognised that you had made a bad debt and stood yourself a few shillings worth of righteousness in forgiving your debtor his indebtedness? certain it is that the system is useless to, and very little used by, the respectable individual creditor. indeed, if he tries to use it, he stumbles into so many pitfalls and finds the procedure of it so troublesome and uncanny that he very often fails to stay the course, and, after a few wasted days, goes his way and leaves the debtor to go his. the best customers of the county court, indeed the only people to whom the system of imprisonment for debt is of any real service, are those traders who carry on a business which can only be carried on and made to pay by reason of the sanction of the shadow of the gaol which is of the essence of the contract. the tally-men, the moneylenders, the flash jewellery touts, the sellers of costly bibles in series, of gramophones and other luxuries of the mean streets, these are the knaves the state caters for. for these businesses are based, and soundly and commercially based, on imprisonment for debt. the game is to go forth with a lot of flash watches, persuade a workman in a public-house or elsewhere to sign a paper that he has bought one--he always says, silly fellow, that he thought he had it on approval--and when he fails to pay his instalments put him in the county court. i have known a pigeon-flying working man earning thirty-five shillings a week buy a watch priced eight pounds which had a second hand and a stop movement for timing that momentarily overcame his better sense of economy. without imprisonment for debt it would not have paid the servant of the evil one to have led him into the temptation. to these traders the county court is of real value. they issue their plaints in bundles, they take out judgment summonses in batches of thirty, fifty, or a hundred at a time, they can afford to have a skilled clerk well versed in the procedure of the court to fill up the papers, and can run the machine which a complacent state puts at their disposal with very good results to themselves. i remember a firm starting in manchester with the sale of some sort of horse medicine--good or bad is really no matter. the method of business was delightfully simple. the proprietor travelled round in herefordshire and devonshire and persuaded the farmers to try some of the horse medicine. a form was signed which was a contract of sale and a promise to pay in manchester. this gave the manchester court jurisdiction to issue the summonses, which were for sums of under two pounds. letters came complaining that no contract had been intended, that the stuff was worthless, etc., but no one turned up and judgment went by default. the success of the business was its ruin. the plaintiff, tired of filling up the forms of the court and well knowing that none of his customers would pay without process, actually had affidavits of his own ready printed, and this cynical admission of the fraudulent nature of his trade--for an honest man would not expect nearly all his customers to refuse to accept goods ordered--led to his undoing. inquiries were made, one or two farmers were induced to appear and give evidence, and his business career came to an end. i am not, of course, saying that the county court exists only for those who have the courage and effrontery to make the full use of the machine as an accessory to shady trading. but it can be demonstrated that imprisonment for debt is the mainstay of such trades as moneylending and credit drapery and all those low trades that make their profits by foisting shoddy luxuries on to working men and their wives. some time ago i made a careful examination of some 460 judgment summonses taken consecutively. the figures were from the manchester court. i found the following were the trades represented:- drapers 154 general dealers 130 jewellers 60 grocers 35 moneylenders 24 doctors 10 tailors 5 miscellaneous traders issuing less than four summonses 42 -- 460 general dealers, it must be remembered, are traders in a large or small way of business who will sell furniture, drapery, clothes, cutlery, or anything you like, on the instalment system. their methods of trading are tally-men's methods. if this list be looked at, it will be seen that the general public make very little use of imprisonment for debt. the substantial shopkeeper and ratepayer is scarcely represented at all, the grocers and a few of the big general dealers being the only people who pay rates. some of these general dealers it should be remembered are limited companies having numerous agents paid by high commissions and spending large sums in advertising. their prices are apparently low, but the quality of their goods leaves much to be desired. now what worries me is, why should the state keep courts going for men of this class? the only creditor in that list for whom one can have the least sympathy is the doctor, and the national insurance act has now put him on a cash basis, so that in a list taken to-day he would not appear so often. it is clear from these figures that at a cost to the general body of taxpayers you are encouraging a bad class of parasite traders to choke the growth of thrift among the working classes. for unless you make it ruinous to the creditor for the credit to be given you will never stop it. how can a man at work hinder credit being given through the agency of the wife when the law permits it and caters for it by providing the trader who lives by it with a special debt-collecting machine without which this class of trader were impossible. i have known cases where a working man's wife was dealing with nineteen different scotch drapers. what wages can satisfy such an orgy of drapery as that? how often, too, do men and women buy watches to pawn them for drink or a day at the races? what is this but an evil and ruinous form of moneylending? and what makes these things possible among our poor people? the law siding with the knave against the fool; the saving clause for the imprisonment of poor debtors in the act of 1869. and whereas i shall show you that bankruptcy and divorce are the luxuries of the rich, so it is only fair, i think, to allow that imprisonment for debt is a distinctive privilege that the law reserves for the poor. a man among the well-to-do classes is never imprisoned for debt; the wage-earners are practically the only people who are subject to it. the governor of a gaol reported a case to the last select commission that sat and did nothing on the subject. a labourer was sent to his custody for twenty-one days in default of payment of four shillings and costs, five and ninepence in all. how can a state for very shame prate about the extortion of moneylenders when it adds forty per cent. on to a small debt like this for costs? the man was a widower with four children, the eldest of whom was thirteen, and the youngest two or three years old. when father went to prison the children went to the workhouse. that is all part of the system. the debt was a tally-man's debt for clothes supplied to his late wife. the governor sent it as a typical case for the commission to consider. "as i believe," he wrote, "that there is an idea of having the law on imprisonment for debt amended." the good governor was, of course, entirely mistaken about that. there is no such idea, except in the heads of dreamers and visionaries like elisha and the good governor and myself, and we do not count. so his report ended in nothing, and remains on record as a typical result of the working of imprisonment for debt in a civilised european state in the early part of the year of our lord 1909. i should like to leave the matter there as a horrible example, for so it is, but i am a man of truth--and, in fact, the poor labourer was not kept in gaol. it was afterwards discovered that the good governor, when he investigated the man's case at 9.30 a.m. on the morning after his arrest, had paid his debt for him and set him free. you remember that elisha in a similar case performed a miracle by filling several jars with oil. for myself, i think the good governor's was an even nobler deed. and when the supporters of this wretched system tell you that very few people actually go to gaol, that is, in a sense, true. there are only about six or seven thousand, say, who go to prison on a hundred and odd thousand warrants issued. the number too, is decreasing. this is not, however, to the credit of the law, but because, as i shall show, the law is not strictly administered, and also because the public conscience, what lord haldane so graphically described under the german title _sittlichkeit_, is against it. the habit of mind, custom, and the right action of good citizens do not sanction enforcing debt by imprisonment. it is only the greedy, low-down citizens who deign to use it. but the matter is lightly regarded. a few thousand poor people doing time for trumpery debts cannot, anyhow, be allowed to trouble the sleep of the middle-class voter, and what am i but an untaught knave to bring their slovenly, unhandsome corpses betwixt the wind and his nobility? it is not only the very poor who are dragged to gaol that suffer. the system is really one for blackmailing the poor man's friends and relations. you ask a debtor when he comes before you on a second instalment of a debt: "but you managed to pay the first instalment?" "yes," he replies; "but i had to borrow it from my brother-in-law, and i have not paid him back yet, and he can ill-afford to lose it." i have heard that story hundreds of times, and i know it is often a true one. bailiffs will tell you that on the road to gaol a prisoner will ask to be allowed to call at various houses, looking for an elisha, and if he cannot find anyone to work miracles nowadays he does very often find someone with five and ninepence and a kind heart. the poor are very good to one another in distress, and it is better that a brother man should be saved from gaol and restored to his home and children than that the landlord should have his next week's rent. in the bad old days a county court judge openly said that he found it better to commit to prison for six weeks rather than any shorter period, for he found that the longer the period for which he committed people to prison the shorter the term served, "because when they were committed for the whole six weeks they moved heaven and earth among their friends to get the funds to pay." friends of the system of imprisonment for debt call this "putting the screw on." i think "blackmailing" is the straighter english--but any dirty old phrase will do. and an enormous evil, the extent and results of which can only be guessed, is that the power to send a fellow citizen to gaol for debt, the power to issue or not to issue a warrant for his arrest at any moment after he is in default, places a man and his family so entirely at the mercy of his creditor that, if the creditor be a man of bad character, terrible results may follow. few of us probably have not heard stories of an evil-minded creditor using his power to seduce the virtue of a wife in her husband's absence. there is certainly truth in such stories. human nature is the same in narrower lanes than park lane. the tally-man plays on the wife's love of finery, she gets into debt, her husband knows nothing of it. as long as the wife is complacent nothing is heard of the debt. i do not say such scandals are common, but i have heard enough of such stories to know they are not fairy tales. human nature being what it is the wonder is that these dramas are not more often enacted. when the poor have their divorce courts no doubt the evidence of them will be forthcoming, meanwhile they rest mainly on the complaints of women of insults offered to them, which may be fabrications, but are not always so. what a responsibility rests on a state that maintains a system which leads to such evils. another and less terrible affair is the political influence wielded by a grocer or draper over the free and independent voter whom he can put in gaol for twenty-one days if he fails to see eye to eye with him at election times about disestablishment or tariff reform. yet this is one of the minor evils of the working of the debtors act of 1869. in a hard-fought lancashire election which ended in a tie there was a great flutter and to-do caused by the arrest on the eve of the poll of some earnest debtor of one colour by an equally earnest creditor of another colour. it may, of course, have had nothing to do with the election--but one never knows. anyhow, it happened, and it was certainly not a desirable incident from the point of view of the losing candidate. the theoretical arguments against the abolition of imprisonment for debt are few. the chief one is that a working man would be unable to get credit in times of distress. personally i do not believe it. the argument has been used on every occasion when any legislative step has been taken to mitigate imprisonment, for always the prophecy has been: trade will suffer and individuals, for want of credit, will starve. on every occasion the facts have obstinately refused to honour the prophecy after the event. i am inclined to back history against prophecy in this matter. credit will be given to a working man of good character to a reasonable amount, but he will not be tempted, as he is to-day, to mortgage his future wages on the security of his body for every passing whim. beer is a cash business, betting is a cash business, picture palaces, railway trains, tram cars, slot machines, are all run on a cash basis, yet no one will pretend that the working man does not get as much as he wants of the goods and services of all of them. to-day the temptation, and very largely, i am sorry to say, the practice, is for a workman to make the brewer and the betting man first mortgagees of his weekly wages, whilst the draper and the grocer are too often very ordinary shareholders indeed, obtaining an irregular dividend ranking after the treasury fees of the county court. can anyone honestly say that it would not be better for the draper and the grocer to have their working-class business put on a cash basis. abolish imprisonment for debt and the grocer and draper will demand cash in advance or, at the worst, weekly bills. the workman will then be face to face with the immediate question of whether he prefers to spend his wages in drink and pleasure for himself or food and clothes for his wife and children. i have no doubt what his answer will be. the working man is of the same nature as ourselves. in the old days of general imprisonment for debt everyone lived in debt. the middle classes were tempted to live beyond their means and did so, and the micawbers of the world were always being carried off to prison, leaving their families in tears. now such a state of things is unknown. through the great private and public stores the middle classes buy for cash the best material at the cheapest prices and live within their incomes. the result in their lives is matter of social history. why is it to be supposed that any different result will be arrived at when the working classes are no longer tempted by a false system of credit? "the motive of credit," says dr. johnson, "is the hope of advantage. commerce can never be at a stop while one man wants what another can supply; and credit will never be denied whilst it is likely to be repaid with profit. he that trusts one whom he designs to sue is criminal by the act of trust: the cessation of such invidious traffic is to be desired and no reason can be given why a change of the law should impair any other. we see nation trade with nation where no payment can be compelled. mutual convenience produces mutual confidence and the merchants continue to satisfy the demands of each other though they have nothing to dread but the loss of trade." this argument was against imprisonment for debt as the worthy doctor saw it in his own time, but it is just as convincing to-day about our own or any other form of imprisonment for debt. it goes to the principle and the root of the matter and, like many another of his best sayings, is the knock-out blow on the subject. further, we have proved in our own country the beneficial effects of the abolition of imprisonment for debt, and other countries have set us the good example of doing away with it altogether. in germany they have a strict system of enforcing judgments against well-to-do debtors who seek to cheat their creditors, a class to whom we are somewhat indulgent, allowing many fraudulent persons to live at the expense of tradesmen by the simple expedient of putting goods in their wife's name. but this procedure is not available against working men, and the result is that they have to pay their way as they go along. dr. schuster, an english barrister and a doctor of laws of the university of munich, explained the german system of debt collecting to the commission of 1908. not only did he make it clear that the german workman had, in the absence of imprisonment, acquired habits of thrift that our system discourages, but he pointed out that the insurance funds against sickness and accident, the trades unions, the co-operative societies, and charitable relief, enabled a german working man to tide over bad times without hanging a millstone of debt about his neck as he has to do in this country. in the same way in france there is no imprisonment for debt for the poor, and so far from the french admiring our debt-collecting system in england they think it so expensive and futile that french traders absolutely give up all hope of recovering small debts in england and prefer to write them off as bad. and, indeed, i have more than a suspicion that if one could get an accurate financial history of the collection of a forty shillings' debt in the county court by means of imprisonment for debt, one would find that, when treasury fees, solicitor's costs, and creditor's time wasted had been duly paid for, there was very little balance to credit in the plaintiff's ledger. the more one sees of the system the more is one convinced that it is only serviceable to those creditors who use it in a wholesale manner to recover undesirable debts. and though in theory i can find no serious argument against the abolition of imprisonment for debt, yet there is one practical difficulty in carrying it out which will have to be faced. the county court registrars in the small courts are unfortunately paid by fees on the number of plaints issued. a moneylender or tally-man who cleans up his books once a year and brings into court a few hundred plaints automatically raises the salary of the registrar. if this debt-collecting business is swept away, compensation for the disturbance of these salaries that have been calculated on this basis for many years must certainly be made. probably it is this real practical objection that stands between the debtor and freedom. i am not alone in thinking that the time is fast coming when the inconvenience of having as the registrar of a court a solicitor in private practice paid by fees on the number of plaints will be so fully recognised that the country will demand a sweeping alteration in the system. the abolition of imprisonment for debt will give the courts time to entertain jurisdiction for divorce and other matters where the poor are entitled to the same legal favour as the rich. when these reforms are made it will be found necessary, i believe, that the registrar of each court or group of courts should be a whole-time permanent official. one other point remains to be mentioned. it is commonly said of those who desire to abolish imprisonment for debt that they have a lower sense of honesty than their opponents, that their views tend to encourage the man who runs into debt and will not pay when he can. for my part i care not how strict the law is made against dishonesty and debt resultant from dishonesty, but let the imprisonment be imprisonment for dishonesty and not for debt. if the debtor has acted criminally, let him be tried in a criminal court and punished for dishonesty. in the old days a county court judge had powers to imprison for dishonesty, now he has only power to imprison for debt. it is because i believe that the abolition of imprisonment for debt will improve the character of our citizens, as it improved the character of the athenian citizens more than two thousand years ago, that i have put in so many hours overtime in the advocacy of its abolition. but whilst i would abolish imprisonment and should like to see the english workman paying his way like his german brother, whilst i am eager to see the poorer classes freed from the misery that debt and extravagance brings upon them to-day, yet no one, i hope, recognises more clearly than i do the sacred duty of a debtor to pay an honest debt. every penny that he can save after his first duties of maintenance of wife and family should be devoted towards the repayment of debts. but this is a personal obligation on a man, like speaking the truth, or treating mankind with courtesy, and, in a word, is only a branch of the golden rule of doing to others as you would be done by. the breach of this obligation ought not, as it seems to me, to be treated nowadays as more than a case of a flagrant breach of good manners, and i would rather imprison a man who forgets to shut a railway carriage door when he gets out on a winter night than a man who omits to pay me the five shillings he borrowed yesterday. both are ill-mannered fellows and must be dealt with socially, but not, i think, by imprisonment. debt, except from misfortune, is really "worse form" than drunkenness. when that is generally understood no debtors act will be necessary. and the right feeling of a respectable debtor towards his creditor seems to me stated in very apt and beautiful words by old jeremy taylor in one of his "prayers relating to justice," in which he sets out the correct petition to be made thus: "and next enable me to pay my duty to all my friends, and my debts to all my creditors, that none be made miserable or lessened in his estate by his kindness to me, or traffic with me. forgive me all those sins and irregular actions by which i entered into debt further than my necessity required, or by which such necessity was brought upon me; but let them not suffer by occasion of my sin." and if all debtors were moved by the aspirations included in this noble prayer, and if all creditors refused credit to poor folk unless they believed them to be men of such a character that the ideas of the petition were really living in their hearts, then, i think, there would be no need of imprisonment for debt or for county court judges either. indeed, the millennium would be at hand. but short of that great day, we are surely entitled to act as though the majority of mankind preferred right action to wrong action and not to encourage a class of debtors and creditors whose _nexus_ is force and imprisonment rather than friendship and goodwill. the working man should be able to say with piers plowman: "though i should die to-day, my debts are paid," and the law should help him to that end. chapter v workmen's compensation your plea is good; but still i say, beware! laws are explained by man--so have a care. pope: "first satire of second book of horace." an interesting volume might be written about historical litigants and their deeds of heroism. there was the dour coggs who let in his friend bernard over the brandy cask, there was the astute scott who never paid manby, the draper, for his wife's dresses, there was wigglesworth who built himself an everlasting name in the hibaldstow trespass case, and the hero of our own time, dickson, who actually bested a railway company in the matter of dutch oven, the tail-less hound--these and many others are names enshrined in our dusty tomes of law, but if you would read them for mere delight, has not sir frederick pollock done our leading cases into the most melodious verse. if i were a bencher i would like to promote a pageant of these grand old litigants in honour of their service to the english law. i think my favourite among them all is little priestley, the butcher's boy. you will find his simple story in the third volume of "meeson and welsby." how many know that it was at the lincoln summer assizes of 1836 that the brave butcher's boy began it, and started a train of legal thought reaching out to the workmen's compensation system of to-day? it was priestley's duty to deliver meat, and one day fowler, his master, sent him out with such an over-load of beef and mutton that the cart broke down and poor priestley broke his thigh. priestley brought an action against his master, and the jury gave him a verdict for one hundred pounds, but on appeal the judges would not have it, and so poor priestley never got it. a servant, they said, is not bound to risk his safety in the service of his master; he may decline any service where he apprehends injury to himself. lord abinger, c.b., who presided in the appeal court, admitted that there were no precedents either for or against such an action, but he was hard put to it to explain in legal terms why the little butcher's boy, who was certainly a brave explorer into legal hinterlands, was not to be allowed to peg out the claim the jury had awarded him. his lordship was driven back to "general principles." the most learned lawyer of our day, the late mr. danckwerts, once said to me when i was a very young man at the bar and talked glibly in consultation about the "broad grounds of truth and justice": "if we have nothing better to rest our case on than that, god help us in the court of appeal." he then proceeded to show me some cases on the subject which my ignorance and inexperience had failed to discover. and it was not that the great man was not a lover of truth and justice, but that he knew that law meant, not what he and i and our client thought to be truth and justice, but what all generations of calm thinking men outside the dispute ought to think to be truth and justice, and that was to be found in the decisions in similar cases which he knew as no other lawyer ever did and about which i showed the common ignorance of my contemporaries. lord abinger, then, having no cases to guide him, played a lone hand, and naturally played it from the point of view of the man who held the cards. if, he said, the master be liable to the servant in an action of this kind the principle of the liability would carry us to an alarming extent. for instance, if a master put a servant into a damp bed or a crazy bedstead or gave him bad meat to eat he might be liable in damages to his servant. "the inconvenience, not to say the absurdity, of these consequences," afforded a sufficient argument against poor priestley and all other servants in like case. priestley broke his leg and lost his case, and legal history does not record his future career. but, though lord abinger was against him, he might fairly have said in the phrase of a celebrated and eloquent manchester surgeon that, "this day he had lighted a candle which would bring forth good fruit." several minor heroes made legal efforts to get behind this judgment, but the judges were too many for them. it was strongly endeavoured to make masters liable to their servants for injury caused by the negligence of a fellow servant, but the judges declared that, when a servant enters a service he contemplates all the ordinary risks of his work, including the negligence of his fellow servants, and that allowance is made for this by the master in fixing his wages. this "doctrine of common employment," as it was called, was, of course, largely a figment of judicial imagination, and it set back, or rather kept back, the hour of industrial reform for more than one generation. there never really was a law of that kind. it is what is rightly called judge-made law. the judges said that it was "inconvenient" and "absurd" for masters to be responsible for negligence of their servants. so, of course, it was--to the masters and in 1836 that finished the matter. thus it came about that in a railway accident, if it was caused, let us say, through the negligence of the company's signalman, every ordinary passenger got compensation out of the company, but the engine driver, the stoker, the guard, and their widows and orphans got nothing. note, however, that if the signalman had belonged to another company it would have been quite otherwise. in the old days when druids sat under oak trees i daresay judge-made law was all very well, though no doubt the personal prejudices of the druids were manifest in their decisions. but since the days of the ten commandments it has been recognised that statute law, carefully considered and simply expressed and written down on tables of stone or otherwise, is a better-class article for ordering the affairs of a modern community. no doubt the judges of 1836, being men connected with the upper middle classes of the day, could not conceive how civilisation and social order could exist side by side with a wicked system whereby a master had to compensate a workman injured in his service. the thing was as incomprehensible to the judicial mind of that date as the fifth proposition of euclid is to many a third-form schoolboy to-day. some of our judges are still in the third form in their ideas of sociology. that is one of the dangers of judge-made law. it is bound to put the stamp of old-fashioned class prejudice on its judgments. if the judges had been labour leaders they would have discovered an implied contract for the master to pay compensation with equal complacency. the fact is that _natural justice_ is merely justice according to the length of the judge's foot, as the common saying is. and the length of a judicial foot will depend on the evolution of the judge. that is to say, according as he and his ancestors have rested their feet cramped in pinched shoes under the mahogany of the wealthy or tramped barefoot along the highway in the freedom of poverty, so will a judge's principles of natural justice favour the rich or the poor. we cannot get away from the fact that our judges make a great deal of law. the idea that a law is somewhere in existence and that the judges merely adopt it will not, i think, hold good for a moment. it is, indeed, a legal fiction. as a great american jurist, professor john chipman gray, of harvard, asks: "what was the law in the time of richard coeur de lion on the liability of a telegraph company to the persons to whom a message was sent?" the answer to this question is obvious. when one reads from time to time of decisions of the courts that are upheld for a generation and finally overruled it is against the truth to speak of a pre-existing code of laws which the judges merely administer and expound. and the reason this is not openly acknowledged and that this mysterious bogey of pre-existent law is worshipped in our courts of justice is, as professor gray tells us, that there is an "unwillingness to recognise the fact that the courts, with the consent of the state, have been constantly in the practice of applying in the decision of controversies, rules which were not in existence and were therefore not knowable by the parties when the causes of controversy occurred. it is the unwillingness to face the certain fact that courts are constantly making _ex post facto_ law." this is why we maintain the fiction of the continuous pre-existence of law. the fear among those in authority seems to be that it would be unwise to openly recognise the real extent of the judicial power, as it would be unpopular and widely rebelled against, and that under the soothing fiction of the existence of an imaginary body of law and by the constant humble assertion of the judges, that they are not there to make laws, but only to administer them, the man in the street is deceived for his own good. for myself i have grave doubts whether this juggling with facts is to anybody's benefit. if it were recognised that in giving decisions at common law, and also in the interpretation of statutes, judges were not only declarers of existing law but makers of new law, then it would be possible to discuss and perhaps control or direct the law-making power of latter-day judges which from time to time manifests itself in unbalanced social judgments. when the telephone was invented by alexander graham bell, the postmaster-general of the day claimed that it was a species of telegraph within the meaning of the telegraph act, 1869. scientifically, of course, it was no such thing. economically and in the interests of the community it was essential that the telephone should not be handed over to a public department predetermined not to give it a fair chance of development. lord kelvin and others pointed out what was the right policy in the matter, and, if the affair had gone to a parliamentary commission, his words would have had weight and a telephone development act might have brought about excellent results. in that case the future of the telephone would have been settled by parliamentary law. it was, in fact, settled by mr. justice stephen in 1880, who declared that the telephone was a telegraph within the meaning of the telegraph acts, 1863, 1869, although the telephone was not invented or contemplated in 1869. in this way its proper development in this country was arrested for more than a generation. this is a remarkable instance of judge-made law. why should an individual citizen just as unversed in science and business as the man in the street have the right to enact what should or should not be done with an entirely new invention which was not in existence when the statute which he pretends to apply was enacted. if the judges decided that an aeroplane plying for hire was a hackney carriage it would in law remain liable to all the statutory hackneydom of carriages until parliament otherwise ordained. is it not becoming time when judges, instead of making new and often reckless law, should be satisfied with declaring that in the case before them there is no law to their knowledge, and it is for the legislature to consider and enact some. if this had been mr. justice stephen's decision in _the attorney-general v. the edison telephone co. of london, ltd._, how much better for all of us to-day! again, in the workmen's compensation act, parliament, it is known, intended and desired to express many things which the judicial interpretations of the act have altered and amended out of all recognition. it is scarcely true that these interpretations are all of them due to the verbal inaccuracy of the parliamentary draftsman, because one often finds the court of appeal taking one view of the meaning of the words and the house of lords another. the real parliamentary object of the act is now very difficult to understand and ascertain from the language used in the judgments interpreting it. if law were really a science and the interpretations of statutes by judges merely an ascertaining of parliamentary intention, one would not expect to find such different interpretations put upon the same words and the parliamentary intention so openly ignored. in america grave popular discontent has arisen over the law-making propensities of judges and their bold refusal to carry out the intentions of the legislature. we have no such widespread feeling in this country, nor are we likely to have, but, all the same, if we were to recognise the law-making power of our judges and openly discuss it and endeavour to define and limit it, there would be less fear in the future of a rupture between the people and the judges when futurist laws of far-reaching social reform come to be administered by the courts. the lamentable failure of consistent interpretations of the compensation acts is not calculated to raise the judiciary in the affections and respect of the working classes. this matter is really one of grave importance, for though in a sense and up to a point, whatever a judge decrees is for the time the law--that time may only be short. in the end the law must express the wills of those who rule society. professor vinogradoff well says, in that excellent little treatise "common sense in law," we ought to "realise that law has to be considered not merely from the point of view of its enforcement by the courts: it depends ultimately on _recognition_." when, then, we openly confess that our judges are making new law every day we shall have to impress on them--especially in social matters--that the new law they make should be, like new parliamentary law, founded on the best aspirations of modern hopes and thoughts of the future life of our people, rather than on the musty creeds and traditions in which the individual human beings who are judges have unfortunately for the most part been educated. judge-made law, like any other law, can only be of value to the community by popular recognition of its wisdom. the more the judges can keep to the real administration and interpretation of laws already existing the better for everyone, but new points of difference and a new social order of things naturally bring before the judges cases which can only be decided by their making new laws. when it is freely acknowledged that this is so, not only the community but the judges themselves will be called upon to consider and decide the ideals and principles by which they ought to be actuated in their capacity of lawgivers. the law that was laid down to meet the case of the butcher and his boy became the law under which every railway servant, every miner, every mechanic, every navvy--the huge industrial army working under impersonal boards and committees of limited liability companies--risked his life in his daily work at his own expense. from 1836 to 1880 men were killed and injured by the thousands in industrial work and there were no pensions for the widows and orphans, no compensation for the wounded. moreover, such a system discouraged employers from spending money on safety devices. no doubt many good and wise employers did a great deal to safeguard their men; equally no doubt, servants, being but human, were often injured and killed by their own carelessness and recklessness. the deplorable part of it was that the law had taken up an attitude against the poor in this matter and, as things stood, it was to no company's interest to spend their money and decrease their dividends by safeguarding the lives and limbs of their servants. this is still so in america, where on the railroads one man is killed for every two hundred and five employed and one is injured in every nine. "war is safe compared to railroading in this country," is the comment of mr. gilbert roe, the american jurist. of course, at all times much was done by private charity of employers and others to help those who fell in the industrial fight. in great colliery, shipping, or railway disasters subscriptions were made, no doubt, just as they are to-day, but the little obscure cases that mount up to many thousands in the annual statistics of the industrial killed and wounded were left to chance and charity. the employers' liability act of 1880 gave certain workmen limited rights of action in special cases. it was a prudent conservative measure brought in by a liberal government, and, of course, it was predicted that it would ruin every industry in the country. it must have cost industry a big bill in lawyer's fees. every case under the act was fiercely litigated, and might go from the county court through two courts of appeal to the house of lords. i do not like to write ill of the poor statute. it is not actually dead, but moribund, and in the years gone by, when we were both young fellows i had many a good outing at the old fellow's expense, and he did me very well indeed. therefore, of the employers' liability act of 1880 i will say no more than the man in the gallery did about the bride when the minister asked, "who giveth this woman away?" "i could, guv'nor, but i ain't going to." but when we come to the workmen's compensation acts that is another matter altogether. the county court judges have never received a penny for the extra work thrust on them by these acts, and therefore there can be no indelicacy or indiscretion in speaking one's thoughts plainly about the system. and of the idea, and to a great extent of the achievement, of mr. chamberlain's scheme--for to him must the praise and honour be given for bringing it about--one cannot speak too highly. the theory at the bottom of it is exactly the opposite of the theory at the bottom of the judges' decision against poor priestley. it is best put in these memorable words of mr. asquith: "_when a person, on his own responsibility and for his own profit, sets in motion agencies which create risks for others, he ought to be civilly responsible for his own acts._" that is the magna charta of workmen's compensation. it cannot be better stated. and the promises and intentions of the new act were splendid. for sir matthew white ridley said that the act would prevent uncertainty, and the parties would know what their rights were, and that it provided a simple and inexpensive remedy and would prevent litigation. mr. chamberlain pointed out that up to then, in 1897, only 12 per cent. of accidents were dealt with, but that he hoped that now the other 88 per cent. were to be brought in. his plan was so simple. an injured man in certain trades had only to ask for compensation, and receive it according to a fixed standard. state-paid doctors and arbitrators were to settle the details of the man's injuries and the amount to be paid to him. in his own words, "we wish to avoid bringing in again under another name the old principle of contributory negligence." a man was to receive compensation when injured in the service, even if he himself had been negligent. i often think if mr. chamberlain had had health and strength to see the workmen's compensation business properly through he would have dealt with the lawyers who mangled his excellent scheme much as theseus did with procrustes when he met him on the banks of the cephisus. procrustes, you will remember, was a robber of attica with a quaint sense of humour and a bedstead. if a traveller asked his hospitality he invited him to the bed, to which he tied him. if his legs were too long he cut them off, and if his legs were too short he pulled them out to the right length. procrustes had the calm judicial mind of the court of appeal, and within his narrow limits knew exactly what he wanted to do and how to do it. but it was rough on the traveller. and it is rough on a humane, simple, wise scheme for the benefit of the poor on leaving the hands of that great reformer and statesman, mr. chamberlain, to find that it is being martyred by the procrustes of the law so that it may fit his narrow bed of justice. i think some of the decisions of the court of appeal would have been too many for mr. chamberlain, and he would have severed their connection with the workmen's compensation business as theseus severed procrustes' connection with the bedstead business. it is certainly not putting it too strongly to say that the judicial body, speaking generally, did not love the workmen's compensation act. the idea at the base of it that a man should compensate another outside the scope of contract or wrong was to them out of harmony with the english law. there never was a more honest or single-hearted judge than a. l. smith, who was master of the rolls when the earliest cases came up for decision in the court of appeal. the social creed of "a. l." was something between that of the church catechism and the _sporting times_. he was beloved by rich and poor. his ideal world was one where a good-natured aristocracy would confer kindnesses on a well-mannered democracy, who should receive them in a jovial and grateful spirit. there is no doubt that he endeavoured, as did all the judges of the court of appeal, to rightly interpret its provisions; there is equally no doubt that the spirit of many of the interpretations placed upon the draftman's words did not give effect to the intentions of mr. chamberlain and those who had passed the act. this one can only trace to the habits of mind and social creeds of judges like "a. l." who were wholly out of touch with the beliefs and hopes of industrial democracy. the act of parliament ought not to have been sent to the court of appeal at all. it was not founded on any legal principle, it was an insurance scheme that wanted business men to work it, and, as mr. chamberlain had foreseen, lawyers and litigation could in no way assist its working. it cannot be gainsaid that the legal history of the workmen's compensation act is not a thing for lawyers to boast about. no one has a greater respect for the court of appeal--and, indeed, for all my spiritual, legal, and worldly pastors and masters--than i have. humility towards those who are called to any honour amongst us is my foible. i admit i have but a poor stomach for law and that i often find the learned judgments of appeal courts a little indigestible, but i remember the irishman sampling the twopenny racecourse pies, and piously murmur to myself, "glory be to god, but they're dam weighty." no one would deny the learning, subtlety and weight of the judgments in the court of appeal on the workmen's compensation act, but, speaking as a common arbitrator who has to work the act at first hand and make it human food for shattered men and widows and orphans, they have not tended to make my task easier, they have not simplified and assisted the scheme as a compensation scheme, and they have not been in harmony with the spoken intentions of the author of the scheme. this, i think, to be due, in the first place, no doubt to the imperfections of the act, in the second, to the fact that the appeals come before learned judges who have never administered the act in cases of first instance and have had no practical experience of its working, and, in the third place, to the fact that to much of the higher judicial intellect the theory of workmen's compensation is in itself unscientific, and therefore repugnant. nearly all the cases, and there are, i regret to say, many, where the court of appeal has overruled the county court, and the county court judgment has ultimately been restored by the house of lords, the error has been in the court of appeal striving to find a reason to hinder the payment of compensation, rather than searching for the principle which brought an admitted injury within the scheme that parliament has made to compensate the injured. after all, the act was one for the compensation of workmen, and every case of injury that is found not to be provided for is a blot on the scheme. the expense of all these appeals, is of course, a terrible burden, and to a workman without a trade union behind him would be impossible. great confusion has been caused by having to work certain matters for considerable periods under decisions of the court of appeal that have afterwards had to be dealt with differently by decisions in the house of lords. very likely if there were a further appeal to a house of archangels the court of appeal would be upheld. but to the injured man in the works and the arbitrator waiting to award him his few shillings a week what could be more pitiable and exasperating than the delay and expense that the present method of working the act entails? one solid reason why the appeals in workmen's compensation cases should be removed from the court of appeal is that they cannot be heard within a reasonable time. the _law journal_ of june 13th, 1914, states that there are seventy-three workmen compensation appeals waiting to be heard, of which no less than ten were entered in 1913. it would be interesting to know how the appellants manage in the interim. the act itself was difficult enough no doubt to make into a good working scheme by those who desired to do it; the hundredweights of handsomely published and learnedly edited reported decisions as to what it really means have made it hopelessly impossible to comprehend and increasingly difficult to administer. to sum up the position of the act to-day, with its myriad encircling decided cases, one can only say, with the immortal sergeant arabin, that it "bristles with pitfalls as an egg is full of meat." when you have an act of parliament that in at least a dozen reported cases is solemnly decided to mean _x_ in the court of appeal and _y_ in the house of lords, _x_ representing "against the workman" and _y_ "for the workman," what does the man in the street think about it? and yet i cannot believe there is so much difficulty about construing the act if the courts would all steer by those excellent sailing directions of lord halsbury and lord davey. lord halsbury said: "the broad proposition, of course, was that the legislature intended that there should be compensation given to every workman in certain trades when an injury happened to him in the course of his employment." lord davey said: "i entirely agree with what has been said by my noble and learned friend on the woolsack that you ought to construe this act so as, as far as possible, to give effect to the primary provisions of it." now the primary provision of the act was to compensate workmen for injuries, not to leave them uncompensated, and to do the business promptly and simply. we want more of the spirit of the act and less of the letter, and a great deal fewer forms and orders and rules. in a word, more business and less procedure. as a dear old lady said to me when, after several efforts to set her affairs right, the registrar and myself had at last got her to fill up the papers necessary, as things are now, to get her case through: "i tell you candidly, judge, all this filling up of papers and signing things has been more worry to me than the loss of my old man." and i'm sure she loved her old man--so what must she have thought of us and our act of parliament? there may be some who think that it is almost indelicate to discuss such a subject as the possible fallibility of the higher judiciary. i agree that it is a subject that can only be treated by one imbued with that reverence for existing institutions that so happily results from a sane middle-class education. moreover, we cannot shut our ears to the sound of much discussion about what is called judicial bias by the man in the street. in america the sounds are louder and clearer than they are in england, and the problem is so much the simpler to understand--especially for the onlooker. there are great lessons for us to study if we would avoid the troubles which the american judges have been assiduously looking for and are now successfully finding. two interesting books written from different standpoints, gilbert e. roe's "our judicial oligarchy," 1912, and frederick n. judson's "the judiciary and the people," 1913, show the eagerness with which lawyers who have human interests outside the daily problems of their profession are discussing the great questions of the law and the poor. the judiciary in america is differently chosen from that in this country and in some ways it has greater powers. its instinct and bias are similar to those of our own judges, but it has not been so successful in instilling into the minds of the citizens a belief in its infallible honesty of purpose. there is no doubt that in america there is a growing distrust of the integrity of the courts and a feeling that the judges in their sympathies and views are on the side of wealth and against the working man. much of this arises, no doubt, from circumstances which do not obtain here. but that the middle-class instinct exists on the american bench even more strongly than it does here can be seen in their history of workmen's compensation which to an english lawyer is strange and confused reading. the common law of america in this matter is the same as the common law of england. the failure of priestley, the lincoln butcher boy, settled the law of america as completely as it did the law of this country. and though different legislatures have endeavoured in different ways to remedy the grievances of employers, the judges have made this not only difficult, but in some cases impossible. in 1906 congress, with the approval of the president, passed a carefully and well-considered "employers' liability act" relating to common carriers in the district of columbia. when it came before the supreme court of the united states this law was held to be unconstitutional by five judges as against four. to my mind there can be no comparison between the influence and common-sense of the judgments. the counting of heads was against the statute, but the expression of the contents of the heads showed a resultant force of brain power in its favour. the chief argument of the majority was that some of the clauses of the statute were "novel and even shocking," just as lord abinger found poor priestley's contention inconvenient and absurd. later on, in 1911, the court of appeal found the workmen's compensation legislation of new york to be unconstitutional, because it placed a "burden upon the employer without any compensatory benefit." in america the judges have been able, for reasons that would certainly have appealed to the late master of the rolls and many of his colleagues, to cancel popular legislation. this has roused a direct conflict in america on the subject of the law and the poor, and there is a growing feeling that the courts are not discharging their duty in relation to social and industrial justice. the recall of decisions and the recall of judges are popular cries, and there is much public discussion of such themes. these things are of interest to us because our laws and our poor come from the same stock and, though we pride ourselves, and i think rightly, on the superiority of our legal machine, yet it is not so perfect that we may not learn something from the troubles and difficulties of our neighbours. if the working class should, even on false premises, come to a conclusion that they could not find justice in our courts owing to judicial social myopia, it would be a sad day for everybody. for my part, though i quite recognise that there was a bias in the late lord abinger, for instance, against poor priestley's way of looking at things, i do not think that anyone believed then or believes now that he gave his judgment in any unrighteous class spirit adversely to the rights of priestley and mankind. on the contrary, i think he did his best. he expressed what he and his fellows believed to be the law. this idea of "bias" in judges is well worth a little consideration. we have not the same problem that america has about our judiciary and, let us hope, we never may have, but no one who knows the working man can fail to have observed that he has been, as he would say, colourably--i modify the adverb--"colourably fed up" with several recent judicial decisions. it has certainly become too common a thing in england to grumble about our judges, and to say--especially when the costs are taxed and the bill is delivered--that the judge was biassed. but let us remember that it is our birthright to grumble. to grumble, as cox pointed out to mrs. bouncer, is a verb neuter meaning to complain without a cause. in england we grumble at all our best beloved--our wife, our children, our weather, our constitution, the three-year-old that fails to carry our money to the winning-post, and the stewards who disqualify him when he does. and when we grumble at our judges and say there is bias on the bench it is only our little way. for what is "bias"? i have never been able to make out why the word should have a sinister meaning. bias--as all good bowlers know--is that mysterious weight within a good "wood" or bowl whereby the skilful is enabled to direct it by an arc-like course towards adjacency of "the mark," which is the historic name of the jack. in lancashire, where the game of bowls is played, as it should be, upon a crown green--and not, as in the south, on a tame, flat rink--the bias and the use of the bias make the glory of the green. by means of bias scientifically used we may reach "the mark" by the circuitous "round peg," or play straight up against "the watershed," as i once heard a geologist among bowlers describe the slope of the green. what grave problems have to be judicially decided on the green as to the use of "thumb" or "finger" bias before the "wood" is delivered! what anxiety is pictured on the face of the bowler! what contortions of his body are involuntarily indulged in as the bowl speeds on its way and does--or more often does not--carry out the intentions of the bowler! and therein, i think, lies the secret of the evil meaning we have given to the word "bias." we see our "wood" careering across the green and hear it fall with a dull thud on the path beyond, and instead of blaming ourselves we blame the bias. thus, owing to the alarming prevalence of duffers on the green and in the greater world surrounding it, the word "bias" has come to be regarded as a tendency that leads astray rather than a tendency that keeps straight and is up to "the mark." and when i am asked whether there is bias on the english bench, i cheerfully reply that i hope and believe there is. i have met with unbiassed bowls, and very poor "woods" they were. i have met with men almost devoid of bias, and i never found that they were continuously up to the mark. bias is as essential as character to both "woods" and men. as far as i remember i have never met a judge without "bias" and seldom seen one whose bias was not fairly under control. we want bias on the bench because we like to feel that the men who decide our disputes are not mere automatic legal slot machines, but human beings, with likes and dislikes similar to ours, trained to hear and determine our disputes and honestly endeavouring to decide the cases without fear or favour. when judicial bias carries the judgment beyond "the mark" we grieve not that the bias is there but that it has been injudiciously used. from the true bowler's point of view there is only one bias, a bias towards things, but in our vulgar misuse of language we speak of a bias against things. and if that is to be allowed no one would grudge a poor working judge his right to a bias against fraud and dishonesty, greed and oppression. such a bias should indeed be instinct in him in the same way as a golfer has a bias against bunkers, a terrier against rats, and a mongoose against snakes. but even a good bias requires strict and cunning control. i remember a very excellent and sage judge--in most matters a cool fountain of deliberate justice--whose bias towards purity and a high ideal of man's conduct towards woman was so little under control that in cases, and especially criminal cases relating to these affairs, it was very difficult for him to conduct the case with justice to the accused. his bias against the sin over-rode his judgment of the crime. the same bias is more often found in juries. i remember a case in which my father, serjeant parry, defended a man named smethurst, charged with the murder of his wife. he was admittedly guilty of bigamy, and so incensed were the jury with his misconduct that their bias carried them right by the mark of the medical testimony and landed them in the ditch of an unjust verdict of murder. the case was taken up by john bright, one whose bias against all evil was as strong as any man's. the criminal was ultimately punished only for the crime he had committed. no one will contend that a bias against immorality is not a good bias and a good asset in the character of a judge and a man. but the best bias in the world will not aid you in attaining "the mark" unless it is directed by body and brain working together in harmony. and if it be asked if there are judges on the bench who are biassed towards or against capital or labour, railway companies, motor-buses, piano organs, scotch drapers, moneylenders or other products of modern life, i must answer in all honesty that this is very probably the case. a fact that seems to be lost sight of in this insistence on the immaculate judge is that, after all, he is like other human beings, a forked radish with a fantastically carved head quaintly decorated by a horse-hair wig generously paid for by himself out of his slender salary. he is just as much the product of the age as one of yourselves. he has toddled about in the same nursery, learned in the same school, played at the same university and lived in the same society as the rest of the middle classes. why should you expect in him a super-instinct towards futurist sociology? in the old days when everyone believed in witchcraft the judges believed in witchcraft. chief justice hale solemnly laid it down as law that there must be such things as witches since there were laws made against witches, and it was not conceivable that laws should be made against that which did not exist. it was not, indeed, until the time of george ii. that it ceased to be an offence to endeavour to raise the devil by magic words and oblige him to execute your commands. nowadays even the devil himself is in danger of disestablishment, though my conservative views would lead me to maintain that he is still entitled to judicial notice, and i am inclined to the opinion that he is not yet surplusage in an indictment for perjury. in every age your judge will be tinged with the prejudices of his time and his class, and i cannot see how you can expect to grow middle-class judges in hot-beds of middle-class prejudices without the natural formation of a certain amount of middle-class bias in the thickness of their middle-class wood. nor do i think among englishmen anyone resents such bias as your judges display in their everyday life. mr. justice grantham, like "a. l.," was undoubtedly a man of strong conservative bias and showed it openly enough upon the bench, but he was adored on a working-class circuit, and no man was better beloved by all who practised or appeared before him, and no judge strove more earnestly to do justice. the fact is, bias is recognised among englishmen as one of the sporting attributes of man and is as necessary to the instruments with which we play the game of life as to the "woods" in our old-world game upon the green. if there is any bias on the bench that is popularly and justly disliked it is a bias towards formalism and technicalities. our law of old got a bad name for that, and in quiet places our reputation still sticks to us. there are still men and women in the english country-side who think there is some sort of disgrace attached to a law court. in the quiet county courts of kent and sussex a defendant often complains in an aggrieved tone at being brought to a "place of this kind." it argues to his mind a want of delicacy in the plaintiff, and he states his case without the least hope that it will be decided on the merits. i remember an amusing expression of this feeling. a defendant, a cheery, round, pippin-faced jobmaster with a treble voice was sued by a farmer for keep of his horses in the farmers' field for several week-ends. "well, i'll tell you about it," he piped diffidently in answer to my request for information, "for i might as well now i'm here. it was this way. i met sandy in crown lane. i always call him sandy--you must excuse me if i'm wrong, i've never been in a place like this before--and sandy says to me, 'jim, why don't you bring your 'orses down to my field for sunday like you used to do last year?' well, i brought my 'orses down on sunday and i did that for some two or three months and then i took them away, and i meets sandy and he says, 'jim, why have you taken your 'orses away?' and i says, 'because there ain't no food on your field for my 'orses.' he says to me, 'there's more food on my field than your 'orses is used to.' i says, 'sandy, you know there's no feed in your field for my 'orses.' he says to me, 'if there ain't no feed in my field for your 'orses there's plenty of recreation for them.' 'recreation?' i says; 'my 'orses don't want no recreation, they gets recreation in the bus through the week.' with that sandy went his way and we never exchanged another word for three year, and now he brings me to this 'ere place for sixteen shillings and i've never been in a place like this before." i explained to the defendant that the county court was really a place intended for an affair of this nature and thoroughly equipped to see it through, but he was not satisfied. "what right has he to bring me here?" he complained. "i never promised to pay him anything." "was there no agreement between you?" i asked. "well, we did agree about one thing." "and what was that?" i asked hopefully. "we agreed that if we couldn't settle what i ought to pay," he replied, eyeing me with doubt and disapprobation, "that we should leave it to a respectable man." now what he really wanted was a judge full of bucolic bias and well acquainted with vaccine and equine learning. it was only i fancy in a veterinary sense that he considered that i was not respectable. and nowadays when we open the courts to new applicants, and turn over great schemes of workmen's compensation to judges to deal with, we want judges to work them who are in touch with the needs and lives of the working class, not necessarily folk who want to exalt the poor on to unreal pedestals and clothe them with impossible virtues, but people who know how near their faults and virtues are to those of the rest of mankind. and when we find american judges deciding that no system of workmen's compensation is to be allowed to become law, and when we note that the most learned judges of our own appeal courts differ constantly as to the meaning of the words of our own scheme, thereby causing delay, confusion and expense, it raises a question in one's mind as to whether some far less exalted court of appeal--say, three county court judges who have to try these cases face to face with the men and women who are interested in their decision--would not better meet the wants of the community in carrying out the scheme and come nearer to the ideal of "the respectable man." a bishop has once been a curate, but a lord justice of appeal has never been a county court judge. the workmen's compensation act is a practical business machine of a complicated character, and it is scarcely a sensible thing that the men who have to keep it going should work under the theoretical direction of men who have never seen it working. and there is another reason why the appeals in these cases should be removed from the court of appeal, and that is a very practical one--the court is over-crowded and has no time to try them. even now as i write there are cases, many of them perhaps merely questions of the payment of a few shillings a week, which have been waiting for many months to be reached. from the point of view of everyone concerned, except the lawyer, there is no health in this litigation. in so far as the administration of the workmen's compensation act has been a success it has been because insurance companies and employers and trade unions and workmen have either kept out of court altogether or, when they have got there, have assisted the registrars and judges of the county court to work the thing on business lines and have resisted in a large measure the temptation in the uncertainty of the decisions to speculative litigation. there is still enough english common-sense left among us to muddle through most things, but the workmen's compensation act, as interpreted in the court of appeal, has tried it fairly high. chapter vi bankruptcy "in a lofty room, ill lighted and worse ventilated, situate in portugal street, lincoln's inn fields, there sit nearly the whole year round, one, two, three or four gentlemen in wigs, as the case may be, with little writing desks before them, constructed after the fashion of those used by the judges of the land, barring the french polish. there is a box of barristers on their right hand; there is an enclosure of insolvent debtors on their left; and there is an inclined plane of most especially dirty faces in their front. these gentlemen are the commissioners of the insolvent court, and the place in which they sit is the insolvent court itself." charles dickens: "pickwick." chap. xliii. a bankrupt is not a person who breaks the bank, as is popularly supposed. on the contrary, he is, or ought to be, by his derivation a person whose bank is broken by others. a learned professor tells me that the florentines of old had some sort of ceremony in which they marched to their insolvent neighbour's office and broke up his bank, or bench, or money table to show the world that he was no longer commercially sound. until recently in english law bankruptcy was merely a trader's remedy designed to protect an unfortunate business man from life-long imprisonment for debt resulting from unfortunate business ventures. latterly the privilege of bankruptcy has been extended to every citizen that has a debt of fifty pounds and ten pounds to pay the fees necessary to filing his petition. but, in order to become insolvent, it is a condition precedent that at some time or another one should have been solvent. and one difficulty about applying any form of bankruptcy laws to the poor is that they are too often born insolvent, live insolvent, and die insolvent. there must be many fellow citizens in this country of ours who never knew what it was for twelve months of their life to have a living wage and be out of debt. as long as we have imprisonment for debt credit of some kind and on some terms ruinous or otherwise is always obtainable. at the present, bankruptcy is almost regarded as a sign of grace, a condition of honourable martyrdom into which the careless and good-natured ones of the world find themselves after a short struggle in the slough of solvency. to the rich it is a very present help in time of trouble, but the poor, never having been sufficiently solvent, can never make use of its aid. when the worker has a living wage guaranteed him by the state it will be necessary to make him a new bankruptcy law so that the living wage cannot be attached and converted to the use of the shylocks of this world. the law protects the infant and the idiot from the results of their own foolishness, and we shall find it advisable in the future to extend similar protection to the grown-up idiots and infants who are all too prevalent in the world. antonio was a normal business man, but he was no match for shylock, and, though no lawyer can approve of the way in which the courts treated shylock, the real lesson of the story is that laws are necessary to protect antonio, the fool, from shylock, the knave. in order, then, that the full blessings of bankruptcy may be made available to the poor, we must certainly tackle the problem of the living wage, which to my mind is the most urgent social question of our time. so many things seem to hang upon it. rent, taxation, education, physical and moral improvement, eugenics, all the social discussions of the time, land you back on the question of the living wage. sometimes, i think, we are on the eve of a new era when every capable honest citizen will have the same right to a living wage that he now has to free board and lodging and stone breaking in the workhouse. i would rather have a legal right to a living wage than a vote, unless i was clear that i could use the latter to obtain the former and many better things to boot. as a matter of dull, dry, literary history all the prophets and singers and poets, from king david, isaiah and jeremiah down to carlyle, kingsley, ruskin, dickens and tom hood, have said or sung the praises of the living wage. there are many who regard jeremiah as a kind of gloomy dean, but for my part i find him most encouraging. when he says: "woe unto him that buildeth his house by unrighteousness and his chambers by wrong; that useth his neighbour's service without wages and giveth him not for his work," i think that he is absolutely right on the spot. i cannot believe that it was his view that woe would providentially descend upon the man who paid sweating wages and that it would come in the shape of lions and bears or lightning and earthquakes; on the contrary, i read it, that, in jeremiah's view, it was the duty of citizens to see that their fellows did not behave like this. the prophet intended to tell us that our first duty was to persuade our fellow citizens employing labour to give their workmen a living wage, but if we could not achieve this by reasoning and exhorting them, then it was our duty to give such anti-social churls statutory woe, just as we mete out statutory woe to the naughty ones who get drunk and beat their wives, and, indeed, for the same social reasons. david and all his biblical backers were as eager as mr. philip snowden and his socialist friends to promote the living wage, and, as they put it, to "deliver the poor from him that is too strong for him." that, in a phrase, is the modern problem of the living wage. the trust, the combine, the limited company, the corporation or government office are bound in the nature of things to become the spoilers of the poor and needy unless there is some power delegated by the state to some judicial authority to "deliver the poor from him that is too strong for him." but it is not sufficient to cite poetry and psalms and the "song of the shirt"--for then your thomas gradgrind comes along--a man of realities, sir, a man of facts and calculations, a man who proceeds upon the principle that two and two are four and nothing over, and who is not going to be talked into allowing for anything over--thomas gradgrind shakes his square finger at you and says: "how are you going to do it?" and i agree that gradgrind is deserving an answer. i do not say we must wait until we convince him, for gradgrinds are obstinate, stubborn fellows, but we must satisfy the majority that we have a fair answer to his objections and a practical programme to propose. the problem cannot be shirked for ever. even in the prophet carlyle's day it was a matter in regard to which "if something be not done something will do itself one day and in a fashion that will please nobody." and shortly the way in which it will come about is by voluntary conciliation, the erection of joint boards of employers and workmen with a right of appeal to a business legal tribunal--something akin to the railway commission--which shall have power to make and enforce a decree to the worker of at least so much of his fair share of an industry as shall amount to a living wage. i can see nothing revolutionary in this proposal. it really only follows out the trend of modern legislation. if a man has a smoking chimney, or pollutes a river, or goes about in public with an infectious disease, we fine or imprison him for his anti-social misconduct. surely a man who pursues an industry that does not make a living wage for the workers in it is equally an enemy of the people, to be dealt with as such by the law! as mr. justice gordon laid it down in the australian labour courts: "if any particular industry cannot keep going and pay its workpeople a living wage it must be shut up." some day that will be the law of england. no one can deny the common sense of it. a very encouraging sign of the times is that both sides are discovering the uselessness of strikes. in mr. snowden's frank words, "a strike never did much substantial gain to the strikers." it is not only that the strike or lock-out is a crime against helpless women and children, that it wastes the substance and savings of employers and employed and embitters their relations for a generation--all that we knew before; the new and comforting message is that the strike does not "get there," it does not succeed, and therefore, as mr. snowden says, "just as war between nations cannot be defended either ethically or economically, so labour disputes are indefensible." and there are other indications that conciliation and agreement in labour matters are to have a fair trial. already in the railway world an interesting experiment has been made. i have seen enough of it in the working to know that it is not such a spavined animal as some of our political jockeys would have us believe. when the railway conciliation boards were set up the employers and workmen, where it was possible, agreed upon an independent chairman to sit with them in case there was a deadlock. several boards of different companies invited me to undertake this honourable position. i need hardly say that i fancied myself not a little at receiving such flattering invitations, and meeting a friend, who was an eminent railway solicitor, i told him the news--not, i suspect, without a note of pardonable triumph in the phrasing. "what!" he cried; "do you mean to say that the companies and the men have agreed upon you as chairman?" "that is so," i replied, with dignity, being a little hurt at his surprise and astonishment. "well, i'm----. however you'll never have anything to do," he added with a grunt of satisfaction. "and why not?" i asked. "because," he replied, with great deliberation, "if they could agree about you they could agree about anything." i thanked him for the compliment, but, analysing the saying since, i am not so sure that the commendation i accepted was really proffered to me. be that as it may, it has turned out to be true. on the few occasions on which my services were required, i have found that things were capable of adjustment and settlement owing to the excellent good feeling on each side and the real endeavour made by everyone to try and understand the other's point of view. this is where the independent chairman is of real service. in explaining to his virgin mind the difficulties of the case, every point in it has to be discussed and explained anew, and in this way the weaker positions of the argument are made clearer to those who are defending them. thus it becomes easier to give way about some matter of detail, and concession breeds concession. without making too much of my own small experience, it bears out my theoretical expectation, and i am satisfied that a conciliatory court for trade disputes is a live business proposition, calculated to save employers much unnecessary woe, and that if jeremiah had thought of it, he would have proposed to set one up as a practical step towards the living wage. until, then, we have established a living wage for the worker, the question of his bankruptcy is in a large measure academic. at present bankruptcy, like divorce, is rightly regarded as a luxury for the well-to-do. i know that to some minds the word "bankruptcy" connotes poverty, but if you look into the facts and history of the matter, you will find that, though bankruptcy may on occasion lead to poverty, a poor man never does, or can, become a bankrupt. people fail to the tune of five or six million pounds a year, but when you analyse the list of the insolvent you will not find many poor folk among them. there are lords and gentlemen, solicitors and stockbrokers, merchants and manufacturers, builders and farmers, and butchers, bakers, and candlestick makers. but the nearest you will find to poor people are lodging-house keepers and coffee-house and fried fish shop proprietors. these are precarious trades, and the working man, being a good sportsman, likes to have a gamble in them with his savings. in this way he joins the aristocracy, and becomes an eligible bankrupt. but the labourer and artisan, the real working men, have no more chance of bankruptcy than they have of election to the athenæum or the carlton. bankruptcy is a legal status jealously guarded by the caste to which it belongs. the poor man reads in the paper of builders and merchants failing for their thousands, of well-paid accountants carefully investigating the history of their financial fall; he puts his head into the registrar's court and hears an amiable official receiver sympathetically tracing the career of the well-groomed bankrupt in front of him; he sees the judge present the unhappy fellow with a clean slate, from which all his debts are wiped away, and hears him announce to the unfortunate insolvent the date upon which the law will allow him to start becoming insolvent again. and the working man thinks to himself of the twenty or thirty pounds that he owes, and how pleasant it would be if an accountant would add it up and a judge tell him that he need not worry any more about it; but when he begins to inquire further into the subject he finds that bankruptcy is one of the good things of this world that he cannot afford. bankruptcy, successful bankruptcy, is not so easy of achievement as you might think. it is not everyone who knows how to become a bankrupt. there are a lot of big, expensive law books written on this subject by clever fellows who spend their lives soothing the bankrupt's last hours and winding him up according to law and order, with costs out of the estate, but you need not study these to learn how to become a bankrupt. most bankrupts are pig-headed fellows, and achieve bankruptcy in their own foolish amateur way. they read the books about it afterwards. to begin with, you certainly want money, or at least an overdraft and plenty of credit. intending bankrupts generally wear very good clothes; especially are they particular about the shine of their silk hat. bankers and intelligent business men have, in all ages, given credit to top hats, white waistcoats, and gold watch chains. the poor man has none of these, and therefore cannot obtain that overdraft which is one of the first essentials of bankruptcy. the bankrupt has a curious affection for jewellery. he buys large quantities of this commodity, and sells it again at a loss to stave off the evil day and add to his deficiency. i read in the board of trade reports of a failure due to gambling and extravagance, in which the debtor purchased jewellery for £40,000 and sold it the same day for £10,000. if he had been a poor man i think maybe the police would have tried to find a law to give him a rest cure for a few months in one of his majesty's gaols, but he failed for over £70,000, and the probable value of his assets was £175. perhaps he was a bit of an aristocrat. anyhow the police left him alone. i cannot even tell you his name, for the kind inspector-general in bankruptcy, fearful of causing pain to the sorrowing, never tells you the names and addresses of the people whose history he writes. he speaks of him as "no. 1512 of 1911." the poor fellow had no occupation, his cruel father only allowed him a miserable thousand a year, so what could no. 1512 do but run into debt? the wonder is that he failed for so little as £70,000. no. 614 of 1907 was not much of a record, but he will do as another example. he, too, had no occupation except qualifying for a bankrupt and ultimately failed for £21,292 with assets _nil_. he started his wild career at the age of nineteen with expectations of a fortune when he got to the age of twenty-five. with that charming simplicity and cunning, characteristic of the whelps of the vulgar rich, he proceeded to moneylenders, and at the date of the receiving order had created charges exceeding £430,000 on his reversion of such complexity that every mortgagee disputed the right of every prior encumbrancer. this would not matter so much, as all these victims were doubtless moneylenders and a lot of the money would go to estimable lawyers to smooth out the wrinkled parchment muddle, but then at the back of all those were the unsecured creditors, poor tradesmen and others. they were to get nothing. no. 1103 of 1908 was an even smaller fellow. this debtor was educated at oxford and, on leaving the university in 1901, he was in debt to the extent of £4,500. i have a passion for statistics, and i should like to see a balance sheet showing on one side the expenses of the four thousand oxford undergraduates during three years of residence, and on the other side the earnings of the same four thousand undergraduates for a similar period in, say, fifteen or twenty years afterwards. i fear it would not be much of an advertisement for oxford. no. 1103's father paid up his creditors to the extent at least of fifteen shillings in the pound, and gave him a fresh start. he was in trouble again in 1906, through betting and extravagance, and failed for £20,392--assets £1,103. the french have an excellent system of declaring these youngsters to be prodigals and putting them under a committee as we do lunatics with property, and no doubt in money matters they are akin to the insane, and are really to be pitied and cared for. but to the poor it must be strange to see debt and the disaster of debt causing such different results in law to different classes of people, and it must be hard for them to understand why they, too, are not fit subjects for the blessings of bankruptcy rather than gaol. and what am i to say to my friend joseph the signalman, at twenty-nine shillings a week, when he shows me some of these spicy stories of the inspector-general's report cut out of the local paper. "what has it all got to do with you, joseph?" "well," he says, "i've been thinking why should not i do a bit of a failure like no. 1512 of 1911? i can buy a gramophone and a watch, and a few lucky wedding rings and a family bible, and a plush drawing-room suite on the instalment system, and i can borrow a pound or two on a promissory note. of course betting and beer cannot be done on the nod in my class of life, but one can owe a bit of rent, and altogether i see my way to do a failure up to, say, thirty pounds. why shouldn't i go bankrupt?" "well, the answer is very simple," i have to tell him. "the rules of the game are made by the rich for the rich, and not for you, joseph, at all. oh, dear, no! in the first place you must have a debt of fifty pounds." "well," replies joseph, "i think i could bring it as high as that if i tried." "and next you must have a creditor to make you bankrupt, and unless he thinks there is some stuffing in you or wool on your back a creditor is not going to waste his time and money making the likes of you bankrupt." "but," says my hopeful friend joseph, "what is the meaning of a chap filing his own petition? i've often read of that. why shouldn't i file my petition?" "my dear, simple fellow, you surely do not think the clever ones of the earth who look after your interests have not thought all that out? you take your petition to the bankruptcy court and see what happens. you will find the usual janitor at the door with his open palm. of course you are expected to pay a fee--you have learned enough about english courts to know that you do not get 'owt for nowt' in any of them. but in the bankruptcy court, my young friend, they foresaw you coming along and they have put the figure too high for you. ten pounds, money down! that's the price. if you want to set all the pretty little figures working, the official receiver smiling, the registrar writing it all down, and the judge nodding on the bench, and the board of trade publishing statistics about you--ten pounds into the slot, my young friend, and the figures will work. "but you have not got ten pounds, joseph, and you could not raise the sum if you tried, so you will have to go back to work and pay twenty shillings in the pound somehow. and don't go and sell your gramophone and drawing-room suite, for they are on the hire system, and that would put you in the dock, where i hope you may never be. no. 1512 bought his £40,000 worth of jewels out and out, or said he did, and it was a paris jeweller, anyhow, and i believe he was one of the 'nuts' and not your class at all, joseph, but you may take it from me that you must not expect to be treated as he was. have i said enough, my dear friend? are you quite satisfied? bankruptcy, i can assure you, is not for joseph. oh, dear, no!" it is only fair to the law and to the memory of mr. chamberlain, who made the law, to remember that when he introduced the bankruptcy act of 1883 he invented a system of small bankruptcies called administration orders, whereby poor folk whose debts do not amount to fifty pounds may make a composition with their creditors. let me set down in his own words exactly what he intended and tried to do. i quote from his speech on the second reading of the bill: "what he now desired to call attention to was the clause which followed and which dealt with the case of debtors who owed less than fifty pounds. that was the class of debtors who filled our county courts with plaints and added very considerably to the number of the occupants of our gaols. it had always been felt to be a great hardship that while a large debtor could with ease relieve himself of all his liabilities he or his trustees might be prosecuting a poor man for thirty or forty shillings, and the latter might be sent to prison without having any means provided for him to make a composition with his creditors, and when, after satisfying the debt, he came out of gaol he was still liable in full to all his other creditors." * * * * * "but the more important provision which he had made for dealing with this subject was that under which a county court judge might in future make an order for the payment by a debtor who owed less than fifty pounds by instalments or otherwise of all or any part of his debts. a debtor who was brought up on a judgment summons or a county court plaint might state that he was indebted to other persons, might give in a schedule of his debts and propose an arrangement for discharging them, and, if the court thought it reasonable, it might at once confirm it, so that a small debtor would thus be in exactly the same position as a large debtor who had succeeded in making a composition with his creditors or in arranging for a scheme of liquidation. although he had not abolished in all cases imprisonment for debt, yet, if these provisions became law, it could no longer be said that any inequality existed as between rich and poor. the resort to imprisonment to secure payment would be much easier, and a large discretion would be vested on the judges to arrange for the relief to the small debtor by a reasonable composition." i have set this out at length because it is enormously encouraging to know that thirty years ago mr. chamberlain's ideal was to destroy the county court imprisonment for debt and to give the working man who fell into debt a bankruptcy system similar to that of the rich. why did it fail? well, it has not been wholly a failure, but it certainly has not fulfilled all its author's generous hopes. in the first place the fifty-pound limit is too small, another reason of its non-success is that it is a voluntary system of some complication in competition with the simple, brutal method of the judgment summons and imprisonment for debt, but probably its unpopularity is chiefly due to the fact that the treasury has always deliberately crabbed it by imposing harsh and unreasonable fees. no system of this kind will be successful without compulsion and some clerk of the court in the position of an official receiver to advise the poor how to go about the matter and to see that the order made is carried out. such a system is in vogue in some courts and has proved a success in mitigating imprisonment for debt and holding out a helping hand to those who were drifting into insolvency. but the system as it stands depends too much on the initiative of the county court judge or the registrar. thus we find on a working-class circuit like oldham, rochdale, etc., there will be over six hundred orders made, whereas in whitechapel only two orders are made in the same year. systems favourable to the working classes flourish more vigorously in the north than in the south. you must not suppose the working man is allowed to cast off his debts in the wholesale way in which the thorough-bred, blue-blooded bankrupt does. not a bit of it. the order made against him is that he shall pay his debts to the extent of so many shillings in the pound at so many shillings a month. if he does not carry out the order there is prison for him for every instalment he fails to pay if the judge so orders, or at the best his order is rescinded and all his creditors are down on him again as before. but the main drawback to the business is the extortionate fees charged by the treasury. here is a poor devil with twenty-five shillings and a wife and family and, let us say, thirty pounds of debt, and the judge gives him an administration order to pay ten shillings in the pound at five shillings a month. the treasury are at once down on him. their fees are always calculated, not on the dividend paid, but on the total amount of the debts, and they insist in every case on two shillings in the pound. thus, in the case of the man with thirty pounds of debt, the treasury want three pounds money down before the creditors get anything. in 1911 the treasury took no less than £13,000 in these fees. in this matter we cannot acquit the law of the offence of grinding the poor. imagine a wealthy country like this squeezing the insolvent poor out of their weekly pittances instead of helping them to pay their debts. i call it a wicked policy for the state to throw impediments in the way of a working-class man who is struggling out of the back-waters of debt into the fairway of solvency. do not let us shut our eyes to what it means, for the treasury is only our servant and ought to be doing our will, and the responsibility is yours and mine. for we know that every penny of that £13,000 comes out of the mouths of hungry women and children or, at the best, robs them of so many boots and so much clothing. what fees do the treasury receive from no. 1512 of 1911 and his like? two shillings in the pound on the rich man's £70,000 of debt might enable the chancellor to treat the poor more leniently. but the rich man pays his entrance fee of ten pounds and is a life member of the bankruptcy club. the treasury never thinks of touching him for a subscription of two shillings in the pound on the amount of his debts. some day there will come along a chancellor of the exchequer who will be a good samaritan, and the treasury will cease to strip the poor debtor of his raiment to the tune of £13,000 a year. of course it is very easy to blame a public department and throw ugly words at the lords thereof. one gets into a bad habit of blaming those in high places for the inequalities of things. i wonder if i were chancellor whether i should get rid of that shameful tax on the poorest of the poor. perhaps not. after all, the good samaritan was speculating with his own oil and investing his own twopence. the oil and the twopence of the exchequer belong to the public and must be dealt with according to the rules of statecraft. and there may be some grave national danger beyond my humble ken that makes it necessary for england to dirty her hands with that £13,000. chapter vii divorce "we have thought to tie the nuptial knot of our marriages more fast and firm by having taken away all means of dissolving it; but the knot of the will and affection is so much the more slackened and made loose, by how much that of constraint is drawn closer; and on the contrary, that which kept the marriages at rome so long in honour and inviolate, was the liberty every one who so desired had to break them; they kept their wives the better because they might part with them if they would; and in the full liberty of divorce, five hundred years and more passed away before anyone made use on't." michel de montaigne: "essays." translated by charles cotton. book ii., chap. xv. nearly four hundred years ago thomas cranmer, archbishop of canterbury, was burned at the stake over against balliol college, oxford. you remember how a few days before, in a moment of weakness, he had signed a recantation, and how when the fire was kindled and the flames licked up the faggots they revived the spirit of the martyr within him, and he thrust his right hand into the flames, crying out: "this was the hand that wrote it; therefore it shall first suffer punishment." but if that hand had offended in matters spiritual, in practical matters it had done good work for the state. cranmer's "reformatio legum ecclesiasticarum" contains some of the best sense about divorce law reform that i have ever read. its proposals are moderate, sensible and in harmony with the religious ideas of his day, which seem to have been broader and more rational than those of to-day. had edward vi. lived a little longer cranmer's treatise would have been enacted as the statute law of the country. it is pitiful to think of the four hundred years of misery and injustice under which the citizens of this country have suffered in matters relating to divorce owing to a change of government in 1553. the scots did better out of the reformation and have had a more or less satisfactory divorce law in working order since that date. shortly, the propositions that cranmer proposed were these, and they will be found, i think, to run parallel with the views of the common-sense citizen of to-day. he laid down the command that no husband or wife may abandon the other of his or her own free will and, in order that this might be a practical ideal, he set down the causes for which the courts were to grant relief. divorce was allowed for adultery, unless both parties were guilty; desertion; the unduly protracted absence of the husband; or the deadly hostility of the parties. prolonged ill-treatment of the wife gave her a right to divorce, but even here, as long as there was any hope of improvement, the duty of the ecclesiastical judge was to reason with the husband and make him give bail for good behaviour. only in the last resort must "she on her part be helped by the remedy of divorce." great stress is laid throughout the treatise on the desirability of reconciliation. "since in matrimony there is the closest possible union and the highest degree of love that can be imagined, we earnestly desire that the innocent party should forgive the guilty and take him back again should there seem to be any reasonable hope of a better way of life." practical effect was to be given to this principle by the court before proceeding to divorce. cranmer was entirely at one with the more advanced thought of to-day in his detestation of "separation orders." separation without divorce was, he realised, an overture to immorality. "it was formerly customary," he writes, "in the case of certain crimes to deprive married people of the right of association at _bed and board_ though in all other respects their marriage tie remained intact; and since this practice is contrary to holy scripture, involves the greatest confusion, and has introduced an accumulation of evils into matrimony, it is our will that the whole thing be by our authority abolished." what he would have said about our wholesale police court method of separating married people without giving them any rights to form new ties one does not like to imagine. one cannot turn from the short and pithy "reformatio legum ecclesiasticarum" of the sixteenth century to the colossal unwieldy blue books of the twentieth century with any sense of satisfaction. perhaps the most interesting thing to be got out of the latter is a study in contrasts between the body, flavour, and bouquet of archbishops of different vintages. thomas cranmer's services to the state being no longer available after the balliol fire, the choice of his majesty edward vii., when he issued his royal warrant in 1909 for the divorce commission, fell on "the most reverend father in god our right trusty and entirely beloved counsellor cosmo gordon, archbishop of york, primate of england and metropolitan." one would have hoped that after four hundred years further consideration of cranmer's views on divorce--the latter-day representative of cranmer's church would have been able to give king edward vii. at least as good counsel as his predecessor gave to edward vi. no doubt the minority report that he ultimately wrote fairly represents the narrower views of modern ecclesiastics, but it is a sad thing to see the leader of a great church absolutely out of touch with the practical reforms that those who know the lives of the poor admit to be necessary. i should regret if, in a moment of spiritual insight, it should be made clear to our good archbishop that in signing the minority report his right hand had been guilty of offence, or that he should think fit to discipline himself after cranmer's example; but if he had thrust his minority report into the fire, church and state might have sung a joyful psalm of conflagration and congratulation. alas! edward vi. passed away without reform, and our brave king edward vii. changed his world whilst the commissioners were still commissioning, and maybe it will be edward viii.'s turn some four hundred years hence to sign the new divorce law. let nothing be done in a hurry. from cranmer's day until 1857 no divorce law was passed. in the meantime, if you were a peer with a naughty wife, you got an act of parliament passed to divorce her. it was an expensive proceeding and, incidentally, of doubtful legality. but the eugenics of nobility and the purity of breed in the peerage made some such machinery necessary, and so you had "an act for lord roos to marry again," and others similarly entitled. only the very rich at the rate of two or three a year could avail themselves of this procedure, and, of course, the very poor had not a look in at all. it was a judge who awakened the world to the iniquity of it all, and he did it by a jest. there are some funny things said in the high court to-day, but they do not seem to be designed to push the world along as this witty speech did. it was mr. justice maule--a sly dog, the hero of many a good circuit story--that one about the threatening letters, for instance--it was maule j. in a bigamy case, _regina_ v. _thomas hall_, tried at warwick in 1845, who woke up the country to the fact that there was a divorce problem, and that it wanted solving. hall was a labouring man convicted of bigamy and called up for sentence. maule, in passing sentence, said that it did appear that he had been hardly used. "i have indeed, my lord," called out poor hall, "it is very hard." "hold your tongue, hall," quoth the judge, "you must not interrupt me. what i say is the law of the land which you in common with everyone else are bound to obey. no doubt it is very hard for you to have been so used and not to be able to have another wife to live with you when maria had gone away to live with another man, having first robbed you; but such is the law. the law in fact is the same to you as it is to the rich man; it is the same to the low and poor as it is to the mighty and rich and through it you alone can hope to obtain effectual and sufficient relief, and what the rich man would have done you should have done also, you should have followed the same course." "but i had no money, my lord," exclaimed hall. "hold your tongue," rejoined the judge, "you should not interrupt me, especially when i am only speaking to inform you as to what you should have done and for your good. yes, hall, you should have brought an action and obtained damages, which probably the other side would not have been able to pay, in which case you would have had to pay your own costs perhaps a hundred or a hundred and fifty pounds." "oh, lord!" ejaculated the prisoner. "don't interrupt me, hall," said maule, "but attend. but even then you must not have married again. no, you should have gone to the ecclesiastical court and then to the house of lords, where, having proved that all these preliminary matters had been complied with, you would then have been able to marry again! it is very true, hall, you might say, 'where was all the money to come from to pay for all this?' and certainly that was a serious question as the expenses might amount to five or six hundred pounds while you had not as many pence." "as i hope to be saved, i have not a penny--i am only a poor man." "well, don't interrupt me; that may be so, but that will not exempt you from paying the penalty for the felony you have undoubtedly committed. i should have been disposed to have treated the matter more lightly if you had told maria the real state of the case and said, 'i'll marry you if you choose to take your chance and risk it,' but this you have not done." and so the judge gave hall three months or, as some say, four. but that was because he had not told maria all about it. it was for not playing cricket, not for breaking the law. and where the parties commit bigamy out of sheer respectability and a desire to placate mrs. grundy and have some marriage lines in a teapot on the mantelpiece to show the lady who lives next door, the judges, providing there is no deception, wisely treat the offence as something far less deserving of imprisonment than non-payment of rates. why the police prosecute in these cases the chief constable only knows. and the scorn and irony that maule poured on the law of divorce roused the public conscience, and there was a royal commission in 1850 and a divorce act in 1857, and the result was the divorce court as we know it, an excellent tribunal for the matrimonial troubles of well-to-do people, but of no use to poor hall and maria. for maule's words slightly paraphrased might be as truly spoken to the bigamist of to-day as they were to poor hall. and four years ago we had another royal commission, and hundreds of witnesses were examined, and papers and reports handed in, and many days spent in collating and considering the same, and much stationery consumed. it was a shabby thing to the poor to institute this long-winded inquiry. there was nothing to inquire into. the mountain has finished groaning, and the expensive and ridiculous mouse has made his appearance--and all it comes to is that what good old thomas cranmer said ought to be done in 1550 the majority think might be experimented on in 1914; only--the archbishop of to-day is no longer on the side of reform. that, i suppose, shows us very fairly the pace at which the world moves forward and the church moves backward. in a great and necessary social reform, such as this, the church occupies the position of the old-fashioned horse lorry strolling down the middle of the road amiably blocking the modern traffic of the city. it is all very pleasant and reassuring to those nervous folk who fear we are rushing like gadarene pigs into a sea of legalised vice and immorality, but to visionaries and dreamers like myself who would like, as the children say, "to see the wheels go round" in their lifetime, it has its mournful side. there are two ways in which those who are satisfied that the world is the best of all possible worlds meet proposals for reform. if they are backed up by popular clamour and agitation they say with some show of reason that it would never do to give way to threats of violence. if, on the other hand, the campaign for reform is conducted by mannerly argument it is commonly said that there is no demand for a change. comfortable clerical persons are never tired of telling you that there is really no demand from the poorer classes for any reform of the divorce laws. true, people do not go out in the streets and break the windows of cabinet ministers or make themselves politically disagreeable after the fashion of the middle classes who have grievances real or imaginary. but anyone whose advice is sought by the poor in their troubles knows that the demand for divorce exists if it were of any use uttering it aloud to our smug and respectable rulers. of course the demand or no demand is immaterial to anyone who has grasped the fact that it is a principle of elementary justice that the poor should have the same audience and remedies in all our courts as the rich. the real demand for divorce is to be found in the circumstances of the lives of the poor. i propose to set down a few typical cases drawn in every instance from public published records. jane married fred when twenty-two years of age. soon after the marriage he began to ill-treat her and would not work. jane's parents helped them in business. fred continued his ill ways and at length gave jane a beating. jane took out a summons, but would not face the court, and forgave fred. after five years of unhappy married life jane went back to her parents taking her two children, fred agreeing to pay her three shillings a week. at the end of nine months he ceased to send any money and disappeared. for seven years jane lived with her parents until they died. after their death she found it a great struggle to live and pay the rent. charles now comes on the scene, he takes lodgings and pays the rent. ultimately charles and jane live happily together and there are two children of the union. charles provides for fred's children as well as his own. charles and jane would like to marry for their own sake and for their children's. in so far as there is any sin or immorality in this story the promoters of it and the sharers in it are those who stand in the path of divorce reform. here is another typical case. george marries mary, their ages are eighteen and seventeen. soon after marriage mary--who comes of an immoral family--starts drinking and going about with other men. ultimately she deserts george and becomes pregnant by another man and is confined in hospital. the guardians proceed against george for the expenses of the confinement, but he is able to prove to their satisfaction that he is not the father of the child. mary then disappears to further infidelities and george goes back to live with his mother. later on anna appears on the scene and george and anna have now a comfortable home and healthy infant. "they think a deal of it and wish it could be legitimate." so, no doubt, do charles and jane and many other poor parents in like case. the law says that these people are entitled to have a divorce, only the law erects its court in a corner of london inaccessible to these poor provincials, and makes the costs and fees and services of its judges and officials and counsellors so expensive that there is no possibility of charles and george, and jane and anna, and their little infants having the blessings of legal and holy matrimony because they have not the cash to purchase the luxury which is not for the likes of them anyhow. and when it is suggested that divorce might be cheapened and made available for these poor citizens archbishops shake their heads, and legal bigwigs, with their eye on the fees and the costs, hold up their hands in amazement. divorce is a reasonable proposition for marmaduke and ermyntrude, of "the towers," loamshire, but for george and anna in back tank street, shuttleborough--not likely. there is no demand for it, says the minority report, and its worthy authors point out with cynical contempt for the working classes that they have got a system of separation orders which is really all they require. now if there is one thing which the evidence before the commission puts beyond doubt it is that the law in relation to separation orders induces, invites, and causes immorality in the poor. cranmer, you remember, knew all about that, and looked on separation without the right to remarry as an unclean thing. but since the sorrows of the poor in their marriage shipwrecks were so manifest, and the divorce court was closed to them, systems of magisterial separation orders, cheap permanent divorces, without the right to marry again, have become the order of the day. there are some six thousand of these decrees made annually. the evidence is overwhelming as to the evils that spring from these orders. as mrs. tennant reports, "i believe that separation orders, the general alternative offered to divorce, work badly in working-class houses, and on the whole make for an increase rather than a diminution of immorality. we have to consider housing conditions and economic circumstances which often do not make for clean or wholesome ways of life, and where the relief offered by separation is not only inadequate but positively mischievous." put in plainer terms by the witnesses, a labouring man, if he has to find a home for his children, has to find a woman to keep house for him; a woman of the same class has to pay a rent, which necessitates the taking in of a lodger. human nature being what it is, it seemed superfluous to appoint a royal commission of trusty and well-beloved ones to tell us what would happen. this is a system that the archbishop of york thinks "probably fulfils its purpose fairly well." of course, it all depends what its purpose may be. if it is its purpose to stand in the way of cheap divorce and the rights of the poor to have the same chance of rescue from a shipwrecked marriage that the rich possess, all is indeed well. but if the object of the law is to bring to those who are weary and in misery some hope of a new life and a new home where children can be born without shame and the parties can live in accordance with the wishes of themselves and their neighbours, then with all respect to the primate of england, the law is probably fulfilling its purpose very damnably. it is only fair, of course, to remember that the archbishop of york and his learned colleagues of the minority report never meet fred and jane and george and anna in real life, and can know no more about such folk at first hand, and have as little chance of understanding their point of view, as i have of studying and comprehending the sociological limitations of the higher priesthood. detestable as i hold these ecclesiastical errors to be in their practical bearing on the lives of the poor, i am hopeful that time and argument will overcome the ecclesiastical veto on reform. i am sure that even a bishop would be converted to healthier views of life if he could have a little home chat with george and anna. and if their pleading did not convince him, i have a belief that the sight of their babies might touch the heart which even in a bishop, we may suppose beats somewhere beneath the chimere and rochet or whatever the vestments are called in which his lordship disguises his human nature from the lower classes. many of our judges and other learned men see very clearly the enormous importance of divorce reform to the poor. mr. justice bargrave deane put the matter very straightly to the commission when he said, "the question of divorce is more a question for the poor than the rich. the rich have their homes and their comforts and their friends who are of a different position and who can by their own advice and conduct keep people straight." in so far as this implies that the standard of morality or etiquette of decent matrimonial conduct is stricter among the rich than the poor, i doubt its truth. the working classes have no leisure for flirtations and philandering. the behaviour of a fast set in a wealthy country house--which is generally more vulgar than really naughty--would probably scandalise the dwellers in a back street. but what the learned judge wished to emphasise was that the consequences of ill-conduct in a husband or wife are far more serious in the everyday life of the cottage than in that of the mansion. here he is undoubtedly right. what, for instance, can be more terrible than the effect of persistent drunkenness on the married life of the poor. alfred and anna have two children. the man earns thirty-two shillings and sixpence a week when in full work and is a thoroughly decent and respectable man. his wife is an inebriate. she pawns everything for drink and neglects her children. her husband obtains a separation order, but after three years anna promised reform, and alfred, like the good fellow he was, took her back. unfortunately in two months she was as bad as ever, and furniture, bedding, clothes, all the household goods disappear to the pawnshop. the children are reported upon by the school authorities. the parents are prosecuted for neglect, and on anna agreeing to go to an inebriates' home for twelve months the bench postpone sentence. when she comes out she is a wreck, suffering from alcoholic neuritis which is leading to paralysis. during her absence alfred has had to pay seven and six a week for her maintenance. he now allows her five shillings a week and she lives with her sister. he is on short time earning twenty-six shillings a week. the children are without mother, the home is without a woman's care and influence and his income is rendered insufficient to provide the necessaries of life. here is another picture--john married catharine in 1896. there was one child. when the infant was nine months old catharine was forced to leave her husband on account of his drunken habits. the child went to its grandmother and catharine went to service for seven years. after that time she met charles, a widower, with one child. being a brave and sensible woman she went to live with him as his wife. they have two children of their own now, one is three years old and the other six months. they have a good home and are very happy, and would like to be married if the law allowed it. now all that religion has to tell us about these cases is that marriages are made in heaven and that heaven having once made these two utter messes of human affairs, it is impious for human hands and minds to try and mitigate the evil for which heaven is responsible. i wish those for whom these old-world blasphemies have merely a folklore interest would leave this so-called religion mumbling in its outer darkness and apply their practical minds to so reforming the law that the lives of alfred and anna and catharine and charles and their innocent babies, and hundreds of other good men and women and innocent children, might no longer have to live in this civilised country under any legal disability or under any social shadow of ignominy or shame. in practice these folk very often do marry again without the blessing of church or state, as in the last-cited case, and live useful and virtuous lives, bringing up happy children in good homes. the law should assist such citizens in the interest of the state, for the community want good homes and healthy children leading happy lives. the recommendation of the majority commission in this matter is a very conservative one. it is that habitual drunkenness found incurable after three years from a first order of separation should be a ground for divorce. this, coupled with divorce for cruelty or desertion for three years and upwards, would certainly cover some of the sadder cases that were brought to the notice of the commissioners. the right of the state to refuse divorce in the case of the insanity of a party to a marriage seems hardly arguable. here is one of the many sad stories. norah married a soldier twenty years ago. fourteen years ago he was taken to an asylum, where he still is, and norah applied for relief. she was offered scrubbing work at the workhouse from 7 a.m. to 6 p.m. at nine shillings a week and some bread, or two-and-six a week and six pounds of bread, with liberty to take in two lodgers. norah, to be with her children, chose the latter. john was one of the lodgers. he found his way to norah's heart by buying presents of boots and clothing for the children. and so norah and john became man and wife, save and in so far as the law refused them that status. as norah told a lady visitor, "i suppose you think it was wrong for me to drift into our present way of living, but it was such a struggle and he was so good to us. i have never been killed with wages, but we are as comfortable as we can be. i often wish we were free to marry because we do not like our children being illegitimate, and people look down on a woman so, if she lives as i am doing." in this matter it is cheering to know that the archbishop and his learned adherents in their minority report are prepared to make some concession. i state this with pleasure, remembering the wise words of that good old welsh parson, the rev. john hopkins, of rhoscolyn, who said, "indeed, judge parry, remember this, one must be charitable even to dissenters." _a fortiori_ one should be just even to archbishops, and it is hopeful that in the matter of insanity where one of the parties is either of unsound mind at the time of the marriage or in a state of incipient mental unsoundness which becomes definite after six months of marriage and the suit is commenced within a year of marriage the minority report timidly proposes that such a marriage might be annulled. what the difference in principle may be between the cases of a mad husband who has been married for six months and a madder husband who has been married for six years the learned ones do not inform us, but we may regard it as a sign of grace that there are some matrimonial miseries that seem to these hard-hearted pundits worthy of sympathy and relief. no protest seems to be made by the church against the go-as-you-please divorce methods of to-day among the upper classes, but if divorce by consent does not exist among the rich it shows great rectitude and self-denial on their part. one often reads of a case like the following one. mrs. a. is neglected by her husband, who leaves her. she asks him to return and he refuses. she files a petition for restitution of conjugal rights. the court makes a fourteen days' order on the undefended petition. i wonder if such an order has ever been obeyed or was ever intended to be obeyed. on receiving the order mr. a. writes that he is not coming back, but that he will be found staying at a certain hotel with another lady under the style of mr. and mrs. a. inquiries are made, and this proving true a divorce petition is filed. this again is undefended and the decree _nisi_ goes as of course. it is conceivable that such a procedure might be used by two intelligent persons who did not respect the laws of their country as a method of divorcing each other by consent, but i have no doubt that the well-to-do who constantly go through these forms are far too scrupulous in their observance of the letter and spirit of our divorce law to be guilty of anything that could be construed into collusion. i do not think that in this country, except among wild and fanatical folk and some of the fast set with whom we need not concern ourselves, there is any demand for divorce by mutual consent. but, even if this were enacted, it does not follow, as montaigne has told us, that it would be used. the idea that a more reasonable system of divorce will lead to a wholesale system of divorces is an absurd folly, a bogey used by ignorant but honest clericals to frighten good people who rather enjoy being scared to death. the fat boys of sociology love to make their victims' flesh creep, and when they speak of divorce reform constantly suggest that human nature tends to immorality in matrimonial affairs. as a matter of fact human beings naturally prefer marriage and married life where it is at all a successful institution to divorce and divorced life. this is wonderfully illustrated in belgium where, as m. henri mesnil, the french avocat, points out, divorce law "as provided for by the code napoléon has remained in force down to the present day: in spite of the long predominance of the catholic party dissolution of marriage by mutual consent is still possible in that country. i might say that although possible it is a very rare thing. i think only one case of divorce by mutual consent will be found amongst four hundred cases in belgium." here we have the results of a hundred years' experience of a european country not unlike our own. it bears out exactly what one would expect, and it is only by ignoring such evidence and referring to the laxity of state procedure in america, without reminding the reader that there is no evidence of any greater laxity in the state of morality there than elsewhere, that the archbishop of york and his friends can claim that the "preponderating voice of history and experience"--a charming phrase--is in favour of their minority report. the archbishop treats history as moses treated the rock. he strikes it with his archiepiscopal staff and there flows forth a gush of watery precedents to rejoice the hearts of the faithful. a poor pagan like myself can only approach the rock with a humble geological hammer and, knocking a few chips off it, report that it does not come of a water-bearing family. outside miraculous draughts of history there is nothing to be found in the past experience of social life that tells against a reform of our present divorce laws. but no reform in the law will be of the least use to the poor unless jurisdiction in divorce is given to the county court. the opposition to this is twofold. it comes from those who object to any reform at all and see that by keeping divorce costly you naturally limit its use, and, again, it comes with even greater force from those who are making their money out of the present system. very naturally the divorce court bar, having an excellent paying business all to themselves, do not want to share it round with other people. towards their trade union attitude of mind i have every sympathy. but when it is more than hinted that it would really be beyond the capacity of a county court judge to try those "very difficult considerations of cruelty, condonation and connivance," i prefer the alliteration of the phrase to the sense of it. there is really no mystery about divorce law. the issue is an absurdly simple one, of grave importance to the lives of the parties certainly, but to a lawyer with a business mind far easier to try than many of the issues that arise every day in bankruptcy, admiralty and commercial cases, and in arbitrations under the workmen's compensation act. the daily work of a county court judge is not less difficult than that of his high court brother. the complication of a case does not depend upon the amount at stake, and the county court judge has, if anything, to have a somewhat wider knowledge of law and a far greater knowledge of the lives of the poor than any other judicial person, since the legal subjects he deals in are more varied in character than those met with in other courts, and he naturally sees more of the daily life of the people. certainly the high court judges get better assistance from the bar, or rather, i should say, more assistance--or should it be assistance of greater length?--but the county court bar of to-day contains the pick of the younger men, and is really the nursery of the common law bar since it is only in the county courts that a catholic experience in civil advocacy can be obtained. i noted with some interest that in a recent batch of silks seven or eight had been before me, some of them several times within a few months of their taking silk. when there is a divorce case of any importance--in the same way as if it were a libel case of importance--great advocates with no special knowledge of the mysteries of divorce law are called in to lead the specialists. what is wanted is advocacy, not knowledge of divorce procedure, and the county courts have excellent advocates to-day. if there is one special branch of law where one would think expert knowledge is essential it is admiralty, yet important admiralty cases belong to county court districts where for aught anybody knows or cares the learned judge and the advocates may not know the difference between a bowsprit and a rudder. but the real reason why the county court should be chosen for this work in the interests of the poor is to my mind the real reason why the county court is popular with business men and the high court is not. in a properly managed county court a case is set down for a certain day and, except on rare occasions, it is tried on that day. as mr. dendy, the learned registrar, pointed out to the commission, "there's no doubt it is of very great advantage to a poor man to know the day on which his case is likely to be tried." it is indeed essential. the man himself and his witnesses do not belong to a class who can spend leisured hours flitting about gothic corridors or waiting to be fetched from public-houses day by day until their case is reached. certainty of trial and reasonable speed in reaching and disposing of the case are worth much more to business people than abstruse technical knowledge or long experience of the habits and manners of those who commit adultery. no one has more reverence than i have for the views of lord alverstone, who thinks divorce jurisdiction should not be given to county courts, yet one must not forget that not only is the opposite view supported by a large number of men and women who know the wants of the poor very intimately, but experts, like sir john macdonell and sir george lewis, both recognise that if you are going to give a whole-hearted measure of reform with the intention of really putting divorce at the disposal of the poor there is no other court to which these cases can honestly be sent. not only must this be done, but if we are to bring ourselves abreast of what already exists in foreign countries we must do a great deal towards cheapening the procedure even of the county court for those who are poor. the french have a very complete system of divorce for poor people, known as "_assistance judicaire_." the effect is that the persons to whom assistance is granted do not have to pay anything whilst they remain poor. the state advances the necessary money. the _avocat_ and _avoué_--barrister and solicitor--work for nothing. in case the assisted person comes into better circumstances he may be obliged to repay the state. if the poor litigant succeeds in his proceedings, the unsuccessful party pays the costs. in 1907 there were 20,464 persons who applied for assistance, 11,726 of which were in relation to matrimonial proceedings, and relief was granted to 9,205 poor people, of whom 5,136 were seeking different forms of matrimonial relief. in germany and the netherlands divorce is equally open to poor people, who receive state aid, and in scotland there is a well-known system which is known as the poors roll, which is said to have existed since 1424. the scots parliament act, which instituted this excellent procedure, commenced as follows: "if there be any poor creature who for lack of skill or expenses cannot nor may not follow his cause the king for the love of god shall ordain the judge before whom the cause shall be determined to purvey and get a leal and wise advocate to follow such poor creatures causes: and if such causes be obtained [won] the wronger shall indemnify both the party injured and the advocate's costs and travail." it is amazing to find in scotland of the fifteenth century laws for the poor that we are only dimly thinking about in our vague uncertain timid way at the present day. what actually happens to the poor man of the present day is set out in the following case--a very common one:-summoned in the city of london court for the non-payment of forty-five pounds, his wife's costs in a divorce suit in which he was the successful petitioner, a city messenger said that he received one hundred and seventeen pounds a year, and while the divorce suit was pending he paid his wife as alimony two pounds ten shillings a month. he had paid sixty-five pounds for his wife's costs, and still owed forty-five pounds. he had obtained an order for payment of his own costs against the co-respondent, but as that person was only earning a few shillings a week he did not know if he would get anything. judge lumley smith, k.c.: "does a successful husband always have to pay his wife's costs?" mr. seyd (for the defendant): "yes." judge lumley smith: "that is rather hard on him." the defendant added that while the suit was pending he had to borrow fifty pounds from his friends. judge lumley smith said a judgment debt must come in front of those of his friends, and ordered payment of one pound a month. this man could not have proceeded _in forma pauperis_, as by our then system this was not open to anyone with more than thirty shillings a week with no means above twenty-five pounds and clothing. if he had done so he would have had neither counsel nor solicitor to plead his cause and the only real benefit he would have obtained would be that he would not have had to pay court fees. the self-respect of working men in many cases hinders them from applying for assistance rendered nominally distasteful by the pauper taint. they manage these things better in france, and what the poor want in england, in fact as well as in name, is "assistance." the new rules that have come into force this year go a little way to provide this, but it is too early as yet to say how far they will meet the wants of the case. there was no need for any royal commission on divorce to explain to any reasonably educated citizen what ought to be done, but i agree that the labours of many good men and women have given chapter and verse for the want and the remedy in a convenient form. too much time was wasted over the moot points of the theologians, for most citizens are agreed that ecclesiastical opinions on the contract of matrimony as it affects the state are of the same value and no more as ecclesiastical opinions would be on such contracts as a bill of sale or a hire-purchase agreement, which may equally from time to time affect adversely or otherwise the moral conduct of human beings. "marriage is nothing but a civil contract. 'tis true 'tis an ordinance of god: so is every other contract: god commands me to keep it when i have made it." worthy john selden did not mean by that that it was to be kept for ever and in all circumstances, but that it was to be kept until such time as the law released the parties from it in the same way as every other civil contract. nothing is more true and necessary to be repeated in these days than the citizens' view of marriage law. whatever codes different religious men and women wish to observe they are free to follow. but the marriage law is a question of citizenship for citizens to settle for themselves. it is therefore satisfactory to read in the majority report that english laymen seem generally to base their views, not upon ecclesiastical tradition or sentiment, but upon general christian principles coupled with common-sense and experience of the needs of human life. it is the conclusion of these men and women--not the anathemas of priests--that want parliamentary attention. they have told us "that there is necessity for reform in this country, both in procedure and in law, if the serious grievances which at present exist are to be removed, and if opportunities of obtaining justice are to be within the reach of the poorer classes. so far from such reforms as we recommend tending to lower the standard of morality and regard for the sanctity of the marriage tie, we consider that reform is necessary in the interest of morality, as well as in the interest of justice; and in the general interests of society and the state." when shall we find time to ease these heavy burdens of the poor and let the oppressed go free? chapter viii flat-traps and their victims will you walk into my parlour said the spider to the fly 'tis the prettiest little parlour you ever did espy. the way into my parlour is up a winding stair, and i have many curious things to show you when you're there. will you? won't you? will you? won't you? walk in pretty fly. _nursery rhyme._ if we could remember half the wise saws and moral jingles that nurse and granny taught us in the nursery and not forget to act upon them in after life, what sensible citizens we should be! some day there will be cinematograph lectures to the young people just leaving the elementary schools, exhibiting not only the real spider, but his many human prototypes, who are lying in wait for the working-class man and woman at every corner of their career. a nature lesson an the smaller tally-man would be far more practical in a city school than a botany lecture on the lesser celandine. nevertheless, i doubt if it will do much good when it comes about. human beings are naturally divided into spiders and flies, and of the two the latter really have the best of it. there is not much fun to be had out of a cramped life in a dingy web counting your gains, even if a white waistcoat and a gold chain conceal your evil conscience. at least the fly buzzes round a bit and thinks he is seeing life before he biffs into the web. and no one need care much about the gay young sportsman bachelor variety--except perhaps his sweetheart, and she has a lucky escape, poor thing! but the silly old married fly who gets caught in the web and leaves a young wife and family starving at home, or, worse still, the house-mother fly who rushes into the web just to look at the spider's latest fashions which she knows her old bluebottle cannot afford--these are sad cases. thomas carlyle was mightily pleased with himself, i doubt not, when he hit upon that phrase describing his fellow citizens as "the twenty-seven millions, mostly fools." those last two words are constantly in the mouth of the odd fool in reference to the 26,999,999 other fellows. still a long life in the county court compels me to the conclusion that the fool is not extinct; he is, indeed, but too prevalent. furthermore, the old world saying, "that a fool and his money are soon parted," is, like many another old proverb, a true saying. these being the facts, why does the law side with the inappropriate knave who preys upon the harmless necessary fool? scientific sociologists will no doubt tell me that if the law were to protect the fool the effect would be to increase and multiply the breed of fools, whereby the human race would become a bigger fool race than already it is. to which my reply would be that the law as it now stands makes the trade of knavery such a lucrative one that the business of it is fast becoming overcrowded, and the best hope of the extinction of the knave seems to lie in the fact that he will soon have to work nearly as hard for his living as the honest man. it is all very well to smile at the simplicity of the fool, and admire the cunning of the knave, but let us remember that the poor fool has in each generation to discover for himself that this is a world in which skimmed milk is constantly masquerading as cream, and that faith in the honesty of human nature in business affairs is in the poor man the first step on the road to ruin. i do not want the law to mollycoddle the fool and deprive him of the birthright of an englishman to make a fool of himself in his own way, but i should like to see the law doing more to stamp out the knave, especially--o, yes, especially--when he is a respectable, pious, well-to-do knave clothed in broad cloth and a well-boiled shirt, tempting the working man to part with his savings in the name of thrift and the preparation for the rainy day. what misery has been caused by well-advertised and wicked schemes of investment introduced to the working man by lying promises garnished with much prayer and psalm singing! if a chartered accountant could make out a balance sheet of the losses of the working class from frauds connected with building societies, insurance schemes, house-purchase companies, and the like, from the days of the liberator onwards, what a terrible indictment it would be of the way in which the law permits the rich knave to rob the poor fool! and yet how few of the promoters of these schemes arrive at their proper destination--the gaol. we open our prison doors readily enough to the poor debtor, but the rich man who lives on the stolen savings of the poor finds it as difficult to enter the gates of the gaol in this world as he will to reach the wicket gate in the hereafter. many societies have been formed under the limited liability companies acts offering working men facilities for buying their own houses or obtaining old age pensions or future lodgings in some glorious castle of spain. these have gathered in for years the savings of working men, and when the directors were called upon to redeem their promises it was found that the money had been spent in directors' salaries and commissions, and there was no provision whatever for the policy-holders. for as the law stands you may make nearly any wild promises you like, for that is not the contract. the contract is the long-worded, obscure policy which is sent to the workman later on. the gaudy booklet with its golden promises and pretty pictures of villas with bow windows which the poor man treasures up has nothing to do with the case. sentimental judges may try to find a way out; juries may give verdicts returning the poor man his money; but all to no purpose. the law stands firm for the solemn contract under the seal of the company, the policy which the poor man has never read and could not understand if he did; and the sleek directors chuckle at the angry working man, and with the blessing of the court of appeal remind him in shylock's own words: till thou canst rail the seal from off my bond, thou but offend'st thy lungs to speak so loud. and certainly as the law stands it is necessary to have a court of appeal stern and unbending in judgment to uphold the sacred nature of the contract. the doubt in my somewhat sentimental mind is whether transactions of this character between knaves and fools are in any practical business sense really contracts at all; and if they are to be deemed to be contracts whether power should not be given to courts of justice to release the victims from the flat-traps in which they have been snared, and give them at least some of their fur back again. this has been attempted with the moneylender, but not at present with very great success. for myself i have always thought that the moneylender, if he be a real moneylender and not merely a fee-snatcher, is by no means the worst setter of flat-traps. i have an uneasy feeling that if moneylenders were nonconformists or churchmen, instead of being jews, we should love them better. for if you get an actual sovereign from a moneylender you have at all events got some concrete thing that you can exchange for food and drink or clothing, and the token has an ascertained value; moreover, if you know a little arithmetic you know what you are paying for it. but if you buy clothing from a tally-man or a watch from a travelling jeweller, or a walnut suite from an instalment furniture dealer, or a family bible in parts from an area tout, you can have no idea whatever of the value of the thing purchased or the percentage of profit on the deal. and, though i should like to see all this class of trading done away with, and know that it causes great ruin and misery, yet to my mind the moneylender and even the lower class of tally-men are angels of light compared with the directors of insolvent collecting societies, who take the savings of the thrifty poor on promises that any sensible person must know to be incapable of performance. as i have shown elsewhere, the bulk of the smaller flat-trap poachers could be quietly exterminated by the abolition of imprisonment for debt. that alone is the artificial manure which enables these social weeds to flourish. withhold it from them and they would wither and die, and the world would be well rid of them. if the man in the street could listen, as i have had to do for the last twenty years, to tales of misery and wretchedness brought about by our absurd credit system he would understand something of my impatience at its continuance. i remember a small household that was ruined by a gramophone. a poor woman, a widow, earned twelve shillings a week, and a son was doing well at fifteen shillings a week. there were two little children. as things go in their world they were well-to-do. the devil, in the form of a tout, came down the street one saturday afternoon, with a beautiful gramophone. it was only a shilling a week, and all that was to be done was for mother and son "to sign just there at the bottom of the paper, and, of course, if they did not want to keep it they could send it back." however, later on, they found that they had signed to buy it; the boy fell out of work, the case was put in court, and judgment was entered against both mother and son in default of appearance for two or three pounds. then the son enlisted and went to india, and i first heard of the case when they brought the widow up on a judgment summons. i asked her why she had signed the guarantee, and her reply was: "tom was such a good lad and he was in work, and he was that keen to have it i couldn't deny him." anyone who has ever been any kind of a father or mother will not cast a stone at her for her folly. that is one of the short and simple tales from the annals of imprisonment for debt. what match are confiding folk like these for the lying scallywags who tout their inferior wares round the streets? and instead of our law remembering that we pray daily to be delivered from temptation, and playing the part of a father of the fatherless and a friend of the widows, it keeps alive section 5 of the debtors act, 1869, in the interests of about as low a class of knaves as ever disgraced the name of english trade. i know very well that there are many good honest folk who approve of imprisonment for debt and have fears about its abolition. these should remember that in france and germany and a great part of america there is no such thing, and yet trade does not suffer and the working classes do not starve. i should quite agree that if a man defrauds a tradesman by lying promises or cheating he should be punished, but imprisonment should be for fraud, not, as it is now, for poverty. as i have already pointed out, in america no honest man is likely to get into prison merely for the wickedness of owing money. we cannot say that is true here. in germany the working man lives on a cash basis. credit is not largely given, as there is no power of imprisonment for debt. england is the last civilised country whose law encourages the poor to live on credit, yet nothing is more true than this, that once start living on credit and you cannot get out of it. it is a downward path leading to the slough of despond. but until the law is amended we must be content to look on and see the poor in the cages of prison whilst those that set the traps and catch them wax fat and shine. and as soon as a boy or a girl begins to earn wages the evil one, in the shape of some kind of tally-man, is at his or her elbow with a watch, or a ring, or a family bible, or a musical instrument, or a shoddy sewing machine, the possession of which can be gloriously enjoyed on payment of the first instalment. i do not say that boys and girls must not buy their experience of the world and pay for it, but the law need not assist the knave in making it more expensive than is necessary. i have known several cases of young servants leaving good places and running off in terror because they have been served with a blue paper, "frightener" with a lot of law jargon about imprisonment upon it, threatening them with dire penalties because an instalment was due on a gold ring. more might certainly be done to prevent back-door trading, and there is no more reason why area touts should be allowed to infest the streets than the lower class of bookmakers. well-to-do people have very little idea of the number of firms that employ travelling canvassers and touts to hawk their wares from door to door in the mean streets. i remember once a fairly well-to-do working man--he was the doorkeeper of a public institution in manchester--had an action brought against him by a street tout because his dog, an airedale terrier, had bitten the prowling fellow as he was coming in at the back door. the man was badly mauled, and the dog having been proved to have bitten several other people of a like nature, i had, much to my discontent, to give judgment for the plaintiff. about a year afterwards--having forgotten all about the matter--i was visiting the institution where the defendant was employed, when, as the gentleman i wished to see was engaged, the doorkeeper asked me to step into his lodge and sit down and wait. "i've often wanted to see you, mr. porry," he began, "about that there dorg case." "what case was that?" i asked. "that case where you fined me five pounds over an airedale what tried to gobble up a tally-man." "i remember," i said doubtfully. "well," he continued, "you seemed to sympathise with me like, but you found against me. you see i had bought that dorg for the very purpose of keeping those fellows off the premises whilst i'm away. so i said if the law don't let 'im bite 'em, what's the use of the dorg? and what i wanted to arsk you was, may my dorg bite 'em within reason or did i 'ave to pay five pounds 'cause 'e mauled 'im too much?" i explained the law in relation to dogs and tally-men as well as i could, and my friend was good enough to say when i had finished: "well, i quite see you 'ad to make me pay as the law stands, but it don't seem to me just. if you can't 'ave a dorg, how can you keep them fellows out of the house?" that was more than i could answer. we parted friends--and there was, i think, a mutual feeling between us that the law of dogs in relation to tally-men was not all it should be. and many laws that are made for the best purposes are wrested from their beneficent uses by the wicked ones of the world and turned to the basest advantages. no legislation was hailed with greater delight by social reformers than the married women's property act, and yet one must admit that the fraudulent use of its provisions is a commonplace. i am not suggesting that it is mainly against the poor that it is misused, though i have known of cases under the workmen's compensation act where goods were alleged to be "in the wife's name" after an award had been made against the husband, and many a poor tradesman and small worker is swindled by this allegation, the victim not having the money to test it in a court of law, and the result being in any case so gloriously uncertain. i am sorry to put matrimony among the flat-traps, but the use of the married status among the dishonest to prevent a successful litigant from obtaining the results of a judgment brings it within this category. even the poorer classes themselves are beginning to make use of it as a kind of homestead law to protect their goods from execution. much as i am in favour of seeing the poor man's home protected to a larger degree than it is at present i do not care to see it achieved at the expense of the character of the occupants. any law that is a constant temptation to dishonesty is an evil, and there is no doubt that when the day comes for legal reform on a large scale, the various questions relating to the position of the married woman in the eye of the law will have to be considered. in many cases, of course, the reforms will be towards the enlargement of women's liberty, but in the matter of holding property it is clear that where a wife or a husband is tacitly allowing credit to be obtained on his or her appearance of property that property should be available to discharge the debt notwithstanding that it is claimed as the special property of one or the other. menander, the greek poet, in one of his comedies makes someone say, "to marry a wife, if we regard the truth, is an evil, but it is a necessary evil." if this was true in 300 b.c. it became more convincingly the truth in 1882 a.d., when the married women's property act became law, and the "peculiar gift of heaven" was welcomed by the unscrupulous trader as a statutory stay of execution. since that day the micawbers of this world have put all their available assets "in the wife's name." the legal privileges of the married woman are not sufficiently well known. like "the infant" she is, indeed, the darling of the law. what a fine commercial spree an "infant" could have who looked older than his years and had an elementary knowledge of the law of "infants"! luckily they do not teach anything useful at educational establishments, and the "infant" never learns about his glorious legal status until it is too late to exploit it. but a married woman can, and does, have a real good time at the expense of her own particular tyrant, man. recently at quarter sessions a man was accused of stealing the spoons, and his wife was accused of receiving the property knowing it to have been stolen. but it was pointed out that it was one of the rights of a married woman to receive whatever her husband happened to bring home, and the judge directed an acquittal. there are several pretty little distinctions in the criminal law in favour of the married lady, but perhaps it is not seemly to advertise them overmuch. when we come to so-called civil matters, the lady who does not know and exercise her legal privileges is indeed a _rara avis_. how many of the debt-collecting cases in the county court are concerned with the good lady who runs into debt with the tally-man or other tradesman to the husband unknown? true, in many of these the husband has a possible defence, but the good man is generally a sporting, careless fellow, and pays his five shillings a month in the belief that debt is a natural sequence of matrimony. but when it comes to committing wrongs--or torts, to use the norman slang of the law--the married woman is the only legal personality that is privileged to forget her duty to her neighbour at someone else's expense. her unhappy husband is always liable for the damages and costs, although he may have done his best to hinder the wrong that has been done. if in his absence on the daily round the good lady slanders her neighbour's wife, or trespasses on her neighbour's garden to commit the further wrong of slapping her neighbour's infant, the husband, for the purposes of paying damages, is regarded by the law as being a joint offender. the law supposes that a wife acts under her husband's directions. when they told mr. bumble that, he replied in the immortal phrase, "if the law supposes that, the law is a ass--a idiot. if that's the eye of the law, the law's a bachelor; and the worst i wish the law is, that his eye may be opened by experience--by experience." it does seem a bit hard on the poor man certainly. if he keeps a dog the animal may have his first bite at his neighbour free of expense, and when he gets to hear about it he can send the dog away. but with a wife there is no question of _scienter_. you may not suspect that your good lady is given to slander, assault and such like indiscretions, but, if it so happens, you have to pay. nor do i see what steps you can take to hinder the lady from trespasses which she has the mind to commit. for if you were to place her under lock and key i believe a sentimental high court judge would grant her a _habeas corpus_ that she might go out again into the wide, wide world and exercise her undoubted right of committing wrong at her husband's expense. and i set down these disadvantages of husbandry as some sort of excuse for the meanness and dishonesty of the man who uses "his wife's name" to protect his assets and injure his creditors. i have in my mind a commercial married man auditing in his debit and credit mind the matrimonial balance sheet. "see," he says, "my liabilities under the law of husband and wife. surely there must be some assets of the relationship in which i am entitled to participate!" then he studies the married women's property act, and chuckles. whether this is so or not, there is no doubt that, since the act of 1882, "everybody's doing it," and when the bailiffs come in the furniture and the stock-in-trade are always found to be "in the wife's name." it is a form of conspiracy, you would say, and the police should put a stop to it, but "old father antic the law" has his answer for you there--a wife cannot be guilty of conspiracy with her husband, for husband and wife are one. there was a story illustrating the prevalence of this custom in the precincts of strangeways, manchester. mr. isaacs, who had been absent from business for some time, returned to his workshop looking pale and white and very weak. a sympathetic neighbour put his head in at the door, and, full of pity, said: "dear me, dear me, you look very ill, mine friend. vot is the matter with you?" "ach," groaned isaacs, "i have had a terrible time, a shocking bad time." "vot vas it all about?" "i vill tell you," replied isaacs. "the veek before last two doctors came to mine house and took avay mine appendix." "bah!" muttered his friend contemptuously. "i vonder at you. that vos all you own fault: you should have put it in the vife's name. then they could not touch it." the story might be told in a scot's accent, or even a welsh one for that matter, and it would represent with equal truth the prevalent outlook of mankind on the commercial advantages of matrimony. i by no means desire to suggest that "the wife's name" is made a baser use of by the eastern communities of strangeways and whitechapel than among the fair-haired saxons of surbiton and chorlton-cum-hardy. there are many people who see no wrong in doing what is within the law, and there has always been a human tendency to score off one's brother man by a smart trick since the days of jacob and esau. the fool will always be outwitted by the discreet ones of the world, who justify their ways by reminding us that we are only bound to obey the letter of the law, and that there is no duty cast upon us to interpret and respect its spirit. and simple charitable folk will say that after all things may really be quite honest and straightforward, and it is only the stingy creditor who sees fraud and the ungenerous judicial mind that finds in the constant repetitions of a series of happenings an intention in the parties to whom the events occur to wrong their neighbours. for why should not john smith put over the door of his shop "j. smith," and how can the pleasant, careless fellow pay his debts in these bad times, and why do those wholesale curmudgeons press for their money and weary of john's winning smile and dangling tales of future payment? if creditors won't wait it is really very foolish in these days to sue for the money and put the bailiffs in. for friend john is away at the races and when they come and seize the stock and effects of "j. smith" there is mrs. smith, dear, good lady, to whom of course everyone knows, or ought to know, the business belongs. is not she a married woman? cannot she trade in her own name? is not her name over the door--well, not her name exactly, but her initial--her full name is jane smith--and as for her husband, he has never been anything but a servant of hers, and now she is going to run the business herself! in due course of evolution, no doubt, we shall breed this dishonesty out of the race, or else the kind of poor, simple tradesman who gives credit without inquiry will become extinct. at present there are quite a number of people who regard laws not so much as guides to good conduct, but as difficulties to be overcome in the obstacle race of life. a learned king's counsel, a well-known expert in bankruptcy and bills of sale, told me of an interview he had with a secretary of a social society who came to ask him to deliver a lecture. the secretary explained that their members were mostly cabinet makers and small furniture dealers, and they had a meeting and a discussion every month. the king's counsel agreed to come, and asked what sort of subject they would like him to speak about. "well," said the secretary, "our president, mr. x----, you may know him----" the king's counsel shook his head. "well, he has been bankrupt twice--i thought you might have met him. he proposed a very good subject, and the committee were quite pleased with it." "and what did he suggest?" "well, seeing we are nearly all interested in the furniture trade, he thought there would be a good turn up if you would come and lecture on the bills of sale acts and how to avoid them." and i suppose a brainy man, with a good wife, and, what is almost as rare nowadays, a good bill of sale, can live on nothing for about as long as it can be done. that candid poet, arthur hugh clough, pointed out many years ago that the ancient decalogue did not cover all our sinful modern ways, and amended the eighth to run thus: thou shalt not steal; an empty feat when it's so lucrative to cheat. and surely we may ask, why should this miserable cheat flourish among decent citizens of to-day? should not a man or woman be made to trade in his or her own name? in a business community it is almost impossible to make adequate inquiries before you start trading, and why, if you come to think of it, should an individual desire to trade in any but his own name? the frauds that are committed may not be very serious, but all forms of cheating and sharp dealing are detrimental to trade, and trade, after all, is the basis of our national pre-eminence. it seems particularly undesirable in a nation that prides itself on its domestic purity that "the wife's name" should be a symbol of dishonesty. if we cannot attain to a decent code of commercial morality without it we shall have to ask our four-hundred-pound legislators for yet another statute. "one man, one name, and make him trade in it," would be well received by all the honest, rich and poor, throughout the country. i have dealt at some length with this question of putting goods in the wife's name because i doubt if folk whose business does not take them into the county court have any idea how prevalent it is and what a very present help it is to the man who is living upon his neighbours by some semi-fraudulent business. every now and then the setter of flat-traps catches a victim too strong and lusty to remain in the trap. the shoddy gold watch is returned, the bogus business is thrown back on the exploiter's hands, the company promoter who has annexed the savings of the victim by false promises is sued for damages for deceit. in some of these cases by pertinacity and the spending of more money a triumphant judgment will be obtained by the fly against the spider. but there it ends. when the high bailiff visits the web he is politely informed that it is part of the wife's separate estate, every thread in the web is covered by a bill of sale, and if you try to imprison the old spider for debt you would find the greatest difficulty in proving his means to the satisfaction of the court. bankruptcy has no terrors for the old fellow. you will probably find that he has been there before and rather likes its old-world dusty crannies and the peaceable formulæ of its schedules and accounts. no doubt it is very difficult to draft laws that the wicked cannot wrest from their righteous purpose and use for iniquity. but the law plays into the hands of the knave by its verbosity and diffuseness and the great mass and complexity of it, which the knave studies with as great care and astuteness as the lawyers and judges whose duty it is, within the four corners of the law, to prevent his wrongdoing. when it is enacted "thou shalt not steal," the court knows where it stands, but that is a far more easy statute to construe than anything the parliamentary draftsman turns out to-day. if we could get a short statute of one clause, "thou shalt not cheat," with an appropriate schedule containing a tariff of fines and imprisonment, i think magistrates could do a good deal to cleanse the cities of a great many low ruffians who make their living by swindling the poor and make the law as it stands their attorney to collect the spoils. chapter ix poverty and procedure therefore i counsel you, ye rich, have pity on the poor. though ye be mighty at the law be ye meek in your deeds. the same measure ye mete wrong or right ye shall be weighed therewith when ye go home. * * * * * to the poor the courts are a maze if he plead there all his life, law is so lordly and loth to end his case; without money paid in presents law listeneth to few. piers plowman. we have moved along a little since the days of edward iii., and if piers plowman were with us to-day he would see no visions of "money paid in presents" to state servants, at all events not to the judiciary. bacon was the last lord chancellor who indulged this evil habit, and if, as his admirers tell us, he was at the time producing his own plays on sharing terms with impecunious actors, one can understand the necessity of it whilst condemning the practice. although we have made justice pure enough in this country and not directly purchasable, yet the rest of piers plowman's indictment is true enough of the present time, and law is still a maze wherein the rich are guided by the clever ones who know the way and the poor too often get lost for want of an honest guide. there are many signs that the public conscience is being slowly awakened to the iniquity of one side in a law suit having all the legal aid that money can buy and the other side nothing. in criminal cases something is already done and a beginning is being made on the civil side in the high court to give the poor legal aid. these reforms do not amount to very much as yet, but they are the first steps towards remedying piers plowman's grievances and, considering that it is less than six hundred years since that excellent visionary made his moan over the law and the poor, and the drawback poverty has in the procedure of the courts, there seems to have been no very unusual delay in government taking the matter up. we may at least congratulate ourselves that we have got a scheme of some sort which can be amended and put into a business shape instead of the select commission which reformers are generally offered to keep them quiet. old piers would be awfully happy--"bucked," i think, is the modern word--if he could know that after five hundred and fifty years we were tackling the problems of life that worried him so greatly. in another six hundred years or so a lot of the little matters referred to in this book will get smoothed out. if you can get into the habit of thinking of the world's progress in centuries instead of months you will find it very comforting. until more is known of these new schemes and their workings we must write of the present system as we know it, for any change in it will certainly be slow enough and it is something to understand the circumstances of the present in order to see what changes are really required. you may remember that george eliot in "the mill on the floss" describes mr. tulliver as saying, "that in law the ends of justice could only be achieved by employing a stronger knave to frustrate a weaker. law was a sort of cock-fight in which it was the business of injured honesty to get a game bird with the best pluck and the strongest spurs." i do not say for a moment that mr. tulliver was right, but i think george eliot shrewdly described in his words the attitude of mind of the man in the street towards the high court of justice. cock-fighting was always a popular, cruel, and exciting sport, and now that it is done away with the next best thing is to squeeze into the divorce court and witness a real set-to between chanticleer, k.c., and young cockerel, who, they say, will be taking silk himself very soon and will knock the older bird out of the ring. certain it is that the poor have a notion, in which there is doubtless some truth, that the fact that the other side had a better and more expensive counsellor gave them a greater chance in the legal lottery. the side that can put carson on to bowl at one end and f. e. smith at the other must start at a better price than the side which has to rely on an unknown amateur in the back row. of course, a. n. other may take some wickets, but the public have a very business-like belief that money talks, and that the verdict of the jury, like most of the verdicts in life, will turn out to be on the side which can put in the field the most expensive team. certainly i can say without hesitation that working men would never have got their due from the workmen's compensation acts if each particular poor workman had had to fight for his rights at his own expense. it is to the trade unions and their co-operative litigation that the thanks of the workmen are due for preserving their rights under the act. mr. lysons was a pendleton collier, and had only worked for a few days when he received an injury. this happened in 1901, and at that time the old act said that no compensation could be recovered until a man had been off work for two weeks. it was argued before me that this being so, unless a man was employed for more than fourteen days he could not come within the act at all. the argument did not appeal to me, but it did to the court of appeal, and later on again it did not to the house of lords. so the man got his money. but the point of the case is that had not the union come forward to take his case to the house of lords, lysons would have lost his compensation, and the act of parliament would have been construed to limit the rights of the poor for all time. this particular case cost the union six hundred pounds to fight, and the point in dispute was whether the injured man was, or was not, to receive six shillings a week for five weeks. several cases have run the same course. the act is obscurely drafted and capable of many interpretations. some of these that still stand on the books remain precedents only because the workman has not money enough to carry the case higher and has no union behind him. and, though in the first instance a workman might often make shift to state his case in the county court himself and rely on his own advocacy as to the facts and the judge's knowledge of the law, it is absurd to suppose he could argue a legal point in the court of appeal or house of lords without assistance. unless a trade union is ready to take up the case, the only hope of a man getting his rights is through the aid of a speculative solicitor. such a system has its drawbacks to the litigant and the profession, and leads to unpleasant and undesirable incidents, but it is no use shutting one's eyes to what is going on every day in every court. dodson and fogg have always been looked down upon ever since sam weller gave them away by blurting out in court that it was "a wery gen'rous thing of them to have taken up the case on spec. and to charge nothing at all for costs unless they got them out of mr. pickwick." no doubt it is very unprofessional to make such an agreement, but with the law as it is, and the poor with rights under the law, how on earth are they to get their rights unless there is a speculative solicitor ready to risk a certain amount of out-of-pockets in the hope of getting them back with advantages from mr. pickwick? unless a speculative solicitor is ready to back the poor man's case with gratuitous services and money enough for counsel's honorarium, surveyor's plans, doctor's and treasury fees, how can the case be launched at all? indeed, could one be certain that such a solicitor never undertook any case unless he was satisfied that his client had right on his side, should we not have to admit that the speculative solicitor was a ministering angel engaged in a practice of delivering the poor that cried, and the fatherless, and him that had none to help him? and as day by day the poor have more laws made to guide them into the way of righteousness, and more statutes are passed with the intention of making the life of the poor healthier, brighter, and better, and as, moreover, in this imperfect world the servants of the evil one are always prowling round to cheat the poor of their rights, it would seem to follow that if law courts and litigation are to be the order of the day we must each of us have a panel lawyer to whom we can go when we want an injunction and our _habeas corpus_ is not up to the mark. for years and years there have been speculative doctors. no one thought any the worse of doctors because they founded hospitals and gave their services free of charge and entered a _caveat_ against disease and death without first getting something on account of costs. and why should not we have legal hospitals and out-patient departments attached to the county court where the house physician is the young man who has taken the best degrees in law and the visiting surgeon is the great leader of the legal profession? the idea is no more ludicrous in one profession than it is in another. medicine has its noble traditions of charity. why should not lawyers set an example of self-sacrifice and unselfishness? or is there some subtle essence in the law that of necessity destroys the favourable microbes that promote peace and goodwill among men? we of the long robe of the inns of court have always held in theory that we were there to take on the protection of any and every suitor. please do not think when your attorney asks you for counsel's fees that you are hiring him by that golden nexus of guineas. by no means. no barrister can stoop to take wages or salary. what you are giving him is a mere gratuity, "which a barrister cannot demand without doing wrong to his reputation." and, that being so, one might expect some of the wealthier templars to take the ideal of their profession at its face value and set up to advise and plead for the poor not only without wronging their reputation by demanding a gratuity, but by refusing to accept one. in a recent case much was said of the noble attitude of barrister a., who, being a political opponent of barrister b., appeared for him when he had got into trouble--i use the phrase in no technical sense. correspondence ensued, and some enthusiasts for the honour of the profession said that every barrister was bound to take up a case if it was offered him. i wonder what would happen if lazarus went knocking at the doors of crown office row and pump court with a claim against dives, but without a gratuity in his hand? would he get anyone to advise him on evidence or settle the indorsement on his writ? one never knows. the atmosphere of our courts is not all that it should be. i do not refer to the physical fog which pervades them, the smells of which the electric fans blow about the building in the sacred name of ventilation, but the moral atmosphere of our courts always seems to me to suggest that the law is an appanage of the rich. by all means let us have dignity, decorum, and distinctive dress, but if you go into the high court, although you may hear the affairs of the poor dealt with sympathetically and in a just spirit, the atmosphere of the court is well-to-do and prosperous. everyone connected with the duties seems to belong to the upper middle class. there is no place at all for the working man to play his part except on occasion in the jury box. and then, if the claim is the claim of a poor man against a rich man, a special jury is empanelled and you get at a greater cost a tribunal of the defendant's own class to hold the scales of justice. and though i firmly believe that all do their best, and that speaking generally justice is well administered, yet i can quite understand the feeling of a poor man entering a court of justice and finding that the judge who lays down the law, the jury who decide the facts, the advocates who argue the case, and the solicitors who instruct the advocates are all drawn from a class of the community which the working man rightly or wrongly believes to be hostile to his outlook on life. if i have not made myself clear, imagine yourself bringing an action against a trade union, and finding when you came into court that a well-known ex-labour m.p. was on the bench, that the jury were chosen entirely from the working classes, and that you were only allowed to be represented by a next friend chosen from the ranks of a particular trade union. would you, under circumstances of this kind, even if you were convinced of the honesty and sincerity of every portion of the tribunal, feel that sense of security in its right decision which is so essential in a community where law should be respected? and that this is a real trouble and that the courts are aware of its existence was shown in a recent judgment of lord sumner in the court of appeal. a learned judge in the court below in correctly directing the jury as to the effect of the trades disputes act had "added some remarks pointedly expressed which were indirectly a criticism of the act and substantially a statement to the jury that a person who availed himself of the defence afforded by the act was setting up a dishonest defence." these remarks lord sumner described as "inopportune, detrimental to the defendant's case and, perhaps worst of all, irrelevant." he concluded with quaint sarcasm: "a judge in charging a jury could never safely indulge in irrelevant observations because he could not be sure that the jury would be sufficiently logical to take no notice of them." i intend asking the office of works to have that painted up on the walls of my court. it is worthy of letters of gold. irrelevancy is certainly the worst of sins and it is a natural vice in most of us only to be kept down by prayer and fasting from the practice of it. we all dislike some act of parliament; the insurance act, the ground game act, the finance act--none is so perfect that it has not some judicial enemies. and it is certainly very tempting when you meet the fellow in court to give him a bit of your mind. but it must not be. the legislature is our schoolmaster. outside in the playground and on vacation we can express our opinions about him freely, but in school--no! lord sumner is perfectly right and when he next speaks on this subject i wish he would point out with authority that this human habit of irrelevancy is the constitutional reason for maintaining the grand jury. for centuries the king's bench judges have worked off their natural irrelevancy in charging the grand juries at assize towns to the great benefit of themselves and the local papers. this national safeguard, this barrier between judicial irrelevancy and the public at large, should not be removed in a careless spirit. our forefathers knew a thing or two. the grand jury is really a sound instrument of constitutional mechanics. it is the safety valve for the blowing off of judicial steam. lawyers and judges are certainly held in higher esteem to-day than they were in the past. gulliver describing the contemporary lawyers to his friend and master, the houyhnhnm says: "there was a society of men among us, bred up from their youth in the act of proving, by words multiplied for the purpose, that white is black, and black is white, according as they are paid. to this society all the rest of the people are slaves. for example, if my neighbour has a mind to my cow, he has a lawyer to prove that he ought to have my cow from me. i must then hire another to defend my right, it being against all rules of law that any man should be allowed to speak for himself." in another passage he inveighs against judges in a strain of even coarser invective. "now your honour is to know," he says, "that these judges are persons appointed to decide all controversies of property, as well as for the trials of criminals, and picked out from the most dexterous lawyers, who have grown old or lazy; and having been biassed all their lives against truth and equity, lie under such a fatal necessity of favouring fraud, perjury, and oppression, that i have known some of them refuse a large bribe from the side where justice lay, rather than injure the faculty, by doing anything unbecoming their nature or their office." even in 1727 the extravagance and exaggerations of these passages must have diminished the force of the satire, but one must remember that under the old forms of procedure and law of evidence all sorts and conditions of chicanery were possible, and the search after truth was clogged and hampered by technicalities that made for injustice. crabbe, in "the borough," draws a picture of swallow, the lawyer, "a hard, bad man who preyed upon the weak," but he had sufficient insight into the reality of things to see that: law was design'd to keep a state of peace; to punish robbery, that wrong might cease; to be impregnable; a constant fort, to which the weak and injured might resort. and the main reason that the law in old days failed in a great measure to carry out its mission to protect the poor was the extraordinary mystery and obscurity of it. where law is a jargon of technicalities foreign to the business ideas of the people an immoral man who is a lawyer has an easy task before him to defraud the weak. in our own time the worst frauds committed by lawyers have been mortgage frauds where the deeds were deposited with solicitors who converted them to their own use. our land transfer system is a relic of the past; it is a mystery that no plain citizen can comprehend. it is necessary for him to employ a lawyer to carry out the smallest transfer of land and it is necessary for him to rely on the statement that the land has been conveyed to him and that the title deeds are in order. the technical obscurity of the transaction opens the door to frauds that would be impossible with a modern, businesslike, public land transfer department. and as technicalities in law and procedure were gradually abolished so we find the pictures of lawyers in contemporary fiction becoming less ignoble, though there will always be more romance in the story of a fraudulent lawyer leading a double life than in the career of a blameless practitioner who serves his clients honourably during office hours and returns punctually to his accustomed suburb at the appointed dinner hour. though we have done away with much legal fiction and cumbrous technicality we cannot greatly boast of the simplicity of our legal procedure. take the county court practice for instance. here is a court primarily designed to adjudicate on the simple disputes of poor people. there are two practice books. they cost over a guinea apiece, they consist of hundreds of pages and are absolutely incomprehensible except to the trained lawyer. this being so it is clear that the lawyer is as necessary to the poor man as he is to the rich. it is a sign of grace in the matter of procedure that whilst this chapter is in the writing we have some new rules issued about giving poor people assistance in high court actions. up to now the procedure _in forma pauperis_ has not been of practical benefit to the poor except in enabling an occasional important appeal to reach the house of lords. it is too soon to say whether these new rules will meet their object. shortly, the scheme is that a poor person--meaning one who can satisfy the judge that he is not worth fifty pounds--will have counsel and solicitor assigned to him from a rota. after that his case will be conducted free of costs or fees. if he succeeds the solicitor--but in no case the counsel--will get costs. much depends of course on the spirit in which this is worked, but it only refers to the high court--which is not, speaking generally, the poor man's court--and it seems unlikely on the face of it that a scheme of this kind, with no one in particular to look after it and advertise its existence, will do away with the undesirable activity of the speculative solicitor. one wishes it well, but except perhaps in relation to divorce cases it does not appear on paper to be of great practical use. the fact is that it is not a very hopeful thing to go to lawyers and committees of lawyers for reforms unless you have the driving power of the business man behind them. nothing was to be more disastrous according to legal prophecy than the institution of the public trustee. no reform has done more to mitigate domestic worries and anxiety than this beneficent institution. lawyers and laymen nowadays concur in casting their troubles upon him and sheltering themselves and their clients beneath his protecting wing. if we are ever to have a proper system of legal advice for the poor it will, i think, have to be made an official department with a business head of affairs and attached lawyers. it might perhaps be added to the duties of labour exchanges, but in any case it should be a department of the board of trade, and it should have branches throughout the country and power to help the poor in all the courts of the country. a device for suing _in forma pauperis_ working only in london, such as is set up by the new rules, cannot be of much avail in tackling the problem of placing legal advice and assistance at the call of the poor. i wish some experiments of a voluntary nature could be made of a more extended character than the poor man's lawyer societies that are attached to university settlements, and do good work in advising the poor. it is really in court that a poor man wants assistance. i often think that a poor man or woman coming into a court for the first time is like the average middle-class englishman when he finds himself on calais pier without a word of french speech at his command and entire ignorance of the ways of the _douane_. how he clings to a friendly interpreter with a gold band round his hat. how extravagantly he rewards him when he and all his luggage are at length safely in the train. and why should not we encourage an amateur legal interpreter in our county courts just as we welcome missionaries in our police courts. i should like to see practising in each court an official friend of the poor, ready to state the case of a poor man or woman who sought his assistance. there is an existing section of the county courts act allowing a friend to appear for anyone by leave of the judge if he does not do it for fee or reward, and on that foundation something might be built. i remember a clergyman, father gething, appearing for an old army pensioner against an insurance society with complicated rules, and asking to be allowed to address me, and conduct the old man's case. sir william cobbett, not having in his mind for the moment the section i refer to, objected. i asked father gething whether he was going to recover any "fee or reward" for acting in the case. "certainly not," replied the reverend gentleman. "but perhaps," i continued--somewhat mischievously--"sir william is going to contend that the word 'reward' in the statute means not only reward in this world, but the next." sir william smiled and shook his head at me in dignified reproof. he was not going to argue this, and with his very good will and assistance the clergyman conducted the case, and in the end secured a victory. in the army courts-martial a prisoner is always allowed a friend to advise him and to take a limited part in the proceedings, and i cannot help thinking that long before the poor man has his panel lawyer voluntary charity will be allowed to supply him with a "friend," who shall be trained in the law, but ready to give his services to the poor without fee or reward. many will think that the suggestions that i have sketched out of assistance to poor people are chimerical and that in any case they are likely to be costly and that the grievance, such as it is, is not worth the money to be spent on the remedy. at one time i seem to be calling out for no lawyers and here i am demanding more lawyers. the inconsistency is only apparent. in all legal reforms i place in the forefront conciliation. i want to see the french "preliminary of conciliation" applied without delay to all small cases and i want the judge of the county court to be clothed with the duty of the french _juge de paix_, whose business it is, in the first instance, to bring the parties together and get them to shake hands. only when that fails, or in those cases where litigation is essential and necessary to the proper determination of a real dispute, should i ask the state to assign counsel and solicitor to the poor. if a poor man has an honest suit with a rich man it should be a point of honour with the courts to see that he is not at a disadvantage in their procedure. but merely providing a poor man with lawyers will not alone work the miracle. money must be found to pay his witnesses and prepare his case, and this is even more necessary in civil cases than in the defence of prisoners where, as we shall see when we come to consider criminal matters, the state, whilst providing legal aid, has stopped short of providing what may be still more necessary, financial assistance for necessary evidence, some of which may be of an expert and expensive character wholly out of reach of a poor man. piers plowman naturally threw the whole blame on the lawyers who went about, as he said: pleading the law, for pennies and for pounds, unlocking their lips never for love of our lord. but i cannot for myself see why a lawyer or a doctor should work for nothing any more than a business man or an author, and, if we knew the truth, i expect we should find that old piers himself invented his vision as much in the blessed hope of royalties as "for the love of our lord." i do not want charity for the poor in our legal procedure, nor do i wish to see litigation multiplied by cheap remedies. on the contrary, i want every effort made to cut down litigation to a minimum, but when a lawsuit takes place i want it to be a fair fight and no favour, with each side equally well equipped for the fray. chapter x crime and punishment the penal laws of the british empire are, by foreign writers, charged with being too sanguinary in the cases of lesser offences. they hold that the punishment of death ought to be inflicted only for crimes of the highest magnitude; and philanthropists of our own nation have accorded with their opinion. such persons as have had no opportunity of inquiring into the subject will hardly credit the assertion that there are above one hundred and sixty offences punished by death, or, as it is denominated, without benefit of clergy. anthony knapp and william baldwin: preface to "the newgate calendar," 1824. the progress we have made in the reform of criminal law in the last hundred years is really remarkable. in very recent days we have at last allowed the prisoner to give his evidence of the matter he is charged with if he desires to do so. we have, under certain restricted conditions, supplied him with legal assistance, and, best of all, there is at length a court of criminal appeal. it is interesting and encouraging when your mind has a bent towards legal reform to see how past reforms have come about. as recently as 1826 prisoners accused of felony were not allowed counsel, and the rev. sydney smith, who had a winning way of stating the case of the law and the poor in his own day, was pleading in the _edinburgh review_ for a reform of this matter. one would have thought then, as one often thinks now, that a mere statement of the issue would have been sufficient. this is a picture of things as they were. "there are seventy or eighty prisoners to be tried for various offences at the assizes who have lain in prison for some months; and fifty of whom, perhaps, are of the lowest order of the people, without friends in any better condition than themselves, and without one single penny to employ in their defence. how are they to obtain witnesses? no attorney can be employed--no subpoena can be taken out; the witnesses are fifty miles off perhaps--totally uninstructed--living from hand to mouth--utterly unable to give up their daily occupation to pay for their journey, or for their support when arrived at the town of trial--and if they could get there, not knowing where to go or what to do. it is impossible but that a human being in such a helpless situation must be found guilty; for as he cannot give evidence for himself, and has not a penny to fetch those who can give it for him, any story told against him must be taken for true (however false) since it is impossible for the poor wretch to contradict it." and yet, absurd as it seems to us to-day, the prisoner's right to counsel was not obtained without a severe struggle. at the back of the mind of those who opposed the reform was the idea that as prisoners were accused by the crown it was an act of disloyalty to defend them. ridiculous as that idea is it still exists in a form that is interesting only as showing that the tradition was once a reality. a king's counsel has to obtain leave from the authorities, and pay a small tribute therefore, before he can appear for a prisoner and against the crown. leave is never refused, but the existence of such a curious custom is only comprehensible by studying the folklore of the subject. a hundred years ago this folly sanctioned by antiquity was a reality. the defenders of the position said it was really all done in the interests of the prisoner. his witnesses were not put on oath, and this allowed them to tell any falsehood they wished; he was saved the expense of his counsel--as though he preferred economy to hanging--and the judge, he was told, was his counsel--an arrangement that the prisoner cannot have been very grateful for when he heard his counsel on the bench summing up to the jury for a conviction. the nonsense that was talked and written on this subject is encouraging to those who want things done to-day. against all reforms, arguments of this kind have to be listened to and laughed out of court, but to-day we are in a better position than sydney smith was, for we often find in the official world a human being ready to help on a reform when the time is ripe for it. in his day common-sense and common humanity had not permeated into government offices, "the attorney-general and the solicitor-general for the time being always protesting against each alteration and regularly and officially prophesying the utter destruction of the whole jurisprudence of great britain." it was not until ten years after the _edinburgh review_ article was written that parliament in august, 1836, passed an act to permit prisoners charged with felony the right to be defended by counsel. and yet there are many people who think we move too fast in necessary reforms. sydney smith mentions as one of the injustices to the prisoner his inability to give evidence. this remained a disability until our own time and was only removed with great difficulty and against the advice of many learned lawyers. the folklore of the subject is quite entertaining. our ancestors considered, from introspective knowledge of themselves and their neighbours, that no one with any interest in a dispute was likely to speak the truth about it, they therefore did not allow the parties to a suit to give any evidence at all. this was the old law in both civil and criminal cases. thus you may remember that in the great case of _bardell_ v. _pickwick_ neither plaintiff nor defendant gives evidence, because in law at that date they were not competent witnesses. the inconveniences of this in civil matters was patent to everyone but the lawyers. writing on the incompetency of witnesses to give evidence, bentham said with some humour, "in the bosom of his family the lawyer by the force of good sense returns to the simple method from which he is led astray at the bar by the folly of his learning. no one is so deeply tainted with his judicial practice as to apply its rules to his domestic affairs. if you would represent madness--but a madness where all is melancholy and unintelligible--you have only to imagine an english barrister carrying into ordinary life the fictions, the rules, and the logic of the bar." certainly we cannot believe that when sergeant snubbin returned to his house and found a dispute raging between his cook and his butler that he tried to find out the truth about it without hearing what either of them had to say. in 1846 when county courts were established, the parties and their wives were allowed to give evidence, and so obvious were the advantages of this that in 1851 lord brougham passed the evidence amendment act extending the system to other courts. the only thing that surprises us to-day is that there could ever have been any question about the necessity of allowing parties to give evidence if it was really desired that they should have justice. but we still clung to the right of the prisoner to keep his mouth shut, and in our insular way boasted of his privilege. thackeray is horrified by the examination of the prisoner in the ordinary french way. "in england, thank heaven, the law is more wise and merciful!" he sees in the french government advocate an official seeking in every way to draw confessions from the prisoner to perplex and confound him and to do away with any effect that his testimony might have on the jury, and he thanks heaven openly that we should "never have acted as these frenchmen have done." what really troubled thackeray's patriotic mind was the indecency of asking the prisoner any question at all. victorian englishmen of all grades were peculiarly proud of our criminal administration of justice and considered the privilege of the prisoner to keep his mouth shut was the keystone of the edifice. dickens approached the matter more hesitatingly: "i wonder," he writes, "why i feel a glow of complacency in a court of justice, when i hear the learned judges taking uncommon pains to prevent the prisoner from letting out the truth. if the object of the trial be to discover the truth, perhaps it might be as edifying to hear it even from the prisoner, as to hear what is unquestionably not the truth from the prisoner's advocate. i wonder why i say, in a flushed and rapturous manner, that it would be 'un-english' to examine the prisoner. i suppose that with common fairness it would be next to impossible to confuse him unless he lied; and if he did lie i suppose he could hardly be brought to confusion too soon." this being the victorian attitude in the matter it was hardly to be wondered at that the reform was delayed until our own day. yet i doubt if anyone conversant with the criminal courts would doubt that although there are cases where it has been to the disadvantage of the guilty to go into the witness box, it has been of enormous value to the innocent that he can give his own account of things to the jury. there are three recent acts of criminal law reform which have done much to safeguard the interests of innocent men, especially if they are poor. these are the criminal evidence act, 1898, the poor prisoners defence act, 1903, and the court of criminal appeal act, 1907. if we could have such an outburst of legal reform every ten years in other subjects we should be doing well. but it must not be thought that these reforms were obtained without trouble. each was strenuously fought, year by year, for many many years before the energy and patience of the reformers were crowned with success. one would have thought that the claim of a citizen, charged with a criminal offence, to give his account of the affair to the jury, if he wished to do so, was one of those matters of elementary justice that could hardly be contended against at the end of the nineteenth century, but the fight against this privilege was really a very strenuous one. twenty years before the reform actually came the bill had been read a second time in the house of commons by a majority of 109, showing, at all events, that the lay mind of the country had no doubt about what should be done. in each succeeding year, when any new offence was created by act of parliament, there was a special clause put in to enable a prisoner to give evidence, so that at length there were some thirty or more acts giving a prisoner the right to give evidence. this made the state of the law, as lord herschell said, "utterly indefensible and ridiculous." we were living under two competing systems, whose constant absurdities were made manifest in the courts; thus, if a man was charged with forging a trade mark he was a competent witness, if he was charged with any other forgery his mouth was closed. curiously enough, owing to the irony of our party system, it was the conservatives who brought in this reform and the radicals who opposed it. it was left for sir richard webster to point to the progress of all the states of america, and the experience of our colonies, and to ask that we should not lag behind in the good work of reform. that sturdy radical, mr. pickersgill, was shocked, and elaborated the quaint argument that an innocent man should be debarred this privilege lest he might be an ignorant person who would tell lies, and get confused and muddled, thereby prejudicing his chance of acquittal. a large body of influential legal opinion was adverse to the bill, and in the division lists voting against the reform you find the names of sam evans, john morley, w. s. robson, lawson walton, and other well-known liberals. it is one of the crosses that a legal reformer has to bear that only through the services of one or other of the great parties in the state can he hope to see his pet dream materialise and there seems a certainty that, if one party is converted to a proposal, the other party makes a point of being diverted by it. over and above that unhappy difficulty to progress there is the certainty that the lawyers, as a profession, will always offer a strong opposition to any proposition of legal reform, and, when this is defeated, will fight strenuous little rearguard actions to cripple and delay it. the poor prisoners defence act met with less opposition. it was a comparatively small affair, and there were a few fees in it. mr. justice grantham--whose merits as a friend of the prisoner and a humane judge are often lost sight of in remembering his daring dives from the bench into the sea of politics--this good judge was a keen supporter of the movement for the better defence of poor prisoners. he thought the magistrates ought to ask the prisoner what his defence was, and tell him that, if he would state it, they would do all they could to assist him in proving it, and that, if he wanted evidence, they would adjourn the case and get evidence. his ideal was that the magistrate and the police should assist a man to prove his innocence, and that any sort of reasonable defence should be followed up at the public expense. the letter of the act, however, only gives the poor prisoner a solicitor and counsel and a copy of the depositions. no doubt the best is done for him that can be under these conditions, but it is not the same quality of legal defence that a rich prisoner can obtain for money. naturally, counsel who take these cases are not men of the greatest experience, and the defending of prisoners is a difficult branch of the act of advocacy. a story is told of a scotch prisoner, who had economically pretended he was without means in order to save counsel's fees, calling out in agony as he heard his defender addressing the jury in a very unconvincing manner: "young mon, if ye'll sit doon at once i'll give ye a feeve poun' note." although the act is not everything it might be, yet, undoubtedly, it is a move in the right direction and capable, under sympathetic administration, of doing much good. the criminal appeal act of 1907 has proved itself of such value already that it becomes the more amazing to read of the difficulty experienced in getting it on the statute book. all manner of legal interests were banded together against it. one of the two learned king's counsel who moved its rejection in the house of commons solemnly declared that the cost of taking shorthand notes and the expense of bringing a prisoner to london from the north of england appalled him and, in his view, "the machinery of the bill must inevitably break down ... it was absolutely unworkable." the second uttered mournful prophecies of ruin: "to substitute," he said, "this most costly machinery for the present system would deprive our criminal courts of their principal glory in the deep sense of care, caution, and responsibility which was pervading the atmosphere of every criminal court in the country at the present time." many people seemed to think that juries knowing there was an appeal would take less pains and care in their duties. but a jury in a criminal case is a body of citizens called together on a special and solemn occasion to do a serious duty and the fact of appeal or no appeal would have little effect on their conduct. it was the slackness of some of the judges rather than the possible carelessness of juries that wanted looking to, especially in courts of country quarter sessions where the shorthand writer and the court of criminal appeal were bound to exercise a good influence. nothing tends to good judicial work more certainly than publicity, a shorthand note, and a strong court of appeal easily available. although the criminal law has in the main been fairly administered and equally enforced against rich and poor there are certain classes of laws which have often, no doubt from worthy motives, been used as engines of oppression against the poor. of these the blasphemy laws are a standing example. dr. johnson tells us that: "laws are formed by the manners and exigencies of particular times and it is but accidental that they last longer than their causes." this is not altogether true. the fact is we have no summary machinery for removing decayed and obsolete laws from the statute book. we want a legal lethal chamber for these old die-hards, these laws against sabbath breaking and blasphemy and other old world wickednesses. a rich man may break as many sabbaths and blaspheme at his will but he is never prosecuted for it. in the days of that great and good reformer, charles bradlaugh, the blasphemy laws were made use of to stifle the poor in the expression of their opinions in a very shameless way. only last year a man was imprisoned under them in circumstances which gave rise to a good deal of uneasiness. he was no doubt an ill-mannered and unpleasant person, but ill manners and unpleasantness are not crimes, and to make use of these old blasphemy laws, to lock up the poor blasphemer only, is one of those things that does extensive harm by giving the blasphemer new fuel for his blasphemy, not only against the sacred things he does not appreciate, but also against the law which he finds ready to do injustice for the protection of these holy mysteries. this again, like many of the things which we may reasonably complain about in what is, as the world goes, a humane criminal law, is one of the matters handed down by our forefathers which we have not had time to set right. in the old days unitarians and others were burned alive. fuller in his church history says: it was found that "such burning of heretics much startled common people, pitying all in pain and prone to asperse justice itself with cruelty because of the novelty and hideousness of this punishment.... wherefore king james politickly preferred that heretics hereafter, though condemned, should silently and privately waste themselves in prison." and that is what all heretics ought to do to-day if the law were equally administered, but as a matter of fact these laws are only put in force against poor, noisy people who preach their doctrines in the market place, and are a dead letter against those who preach the same doctrines on hand-made paper bound in morocco. i can quite believe that a bye-law to hinder one man saying coarse and ill-mannered things about another man's religion in open spaces might be a reasonable police proposition; but there must be free trade in these things and the established church must not have a preference. moreover, such a law must not be extended to pulpits or printing presses or much interesting theological polemics would be lost to us. for the blasphemy laws in the twentieth century, protecting only one form of religion and set in motion only against the poor, nothing can be said. foul language and obscenity can and are punishable in other ways, and the cause of religion is poorly served by being protected by laws which are only set in motion when the well-to-do are annoyed by the vulgarity and ill-manners of the poor. there is no gainsaying that once in the dock all men are equal or very nearly so, but one may harbour a suspicion whether all men have equal opportunities of getting there. theoretically, the dock, like the bench and the cabinet and all other british institutions, is approached by an ever open door; but in practice more goats wander through the opening than sheep. yet your sheep is a born trespasser. there are some who believe that his immunity from punishment is due to the wool on his back. i doubt if this is altogether true. crimes of violence and brutality are naturally the crimes of the less fortunate of mankind, and your sheep is more peaceably disposed than your goat. but when we come to the more modern crime of swindling we find that the criminal law is not very successful in punishing the fraudulent well-to-do. fraud is a more complicated offence than larceny, and defrauders sometimes get the better of the law. cheating is not always a crime, and successful cheating is a question of better education. that is why the rich so often keep out of the dock. the law is somewhat old and decrepit, and the modern well-to-do swindler is very much up to date. therefore i fear it is as true to-day as it was in the days of lord chief justice coke, to say that the law "maketh a net to catch little birds and letteth the great ones go." if you cast your eye down the police news you will many times come upon the case of a low-down man or woman who goes round collecting for a mission that does not exist, thereby cheating the well-disposed of a few pounds or shillings. it is quite right they should be run in and sent to prison. they are pests stealing money that would otherwise relieve real distress. but if they had had a little more money, and hired a house in some remote place, and kept half-a-dozen real orphans there, and called it the st. anonymous orphanage, they might have collected as many thousands a year as they liked for their excellent charity, and no one would have worried them by asking how the orphans were looked after, nor would anyone have wanted to know how much was spent on the orphanage and how much on the founder and his family, and their houses and carriages and furniture and upkeep. the poor orphan has many uses in the world. one of them is to enable the swindler to found orphanages and make his living thereby. at first blush the crime seems the same as that of the house-to-house cadger who gets six months, but note that the uneducated man has told a lie and made a false pretence of an existing fact. the good founder of st. anonymous's never did that. he had an orphanage with real orphans in it. true, there were not very many of them, and the orphanage was rather a stuffy, insanitary sort of place, though photographed on end it looks imposing enough. and that is the _mot juste_, as the french have it; that is what the orphanage was, and what the good founder was--imposing. if you tell no actual fibs the law does not mind you imposing as much as you like. you may transfer the savings of the working class into your pockets by promises of the wildest character and schemes of the silliest and most romantic sort, and if you do it successfully enough the nearest you will ever get to the dock will be a seat on the borough bench, from which altitude you may sentence the poor, mean criminal who never had any capital, and had no one to advise him as to the law of false pretences. this is not a fancy picture. there was at least one such a magistrate on the bench once, and for aught i know there may be some j.p.'s to-day whose wealth has been made by stealing the savings of the working classes within the law. certainly in this country we have been free from the subordination of the criminal courts to the power of gold that is said to exist in other civilised places. any preferential treatment that exists is of a class character--snobbish if you will, but not corrupt. as an irish barrister said to me at liverpool--he was a great home ruler with a grand hatred of england and a real affection for many englishmen: "my dear parry, you'll never convince me that the government ever meant to hang mrs. maybrick. they're a cowardly lot of snobs, and anyhow they couldn't hang a woman they might have to meet out at dinner afterwards." and there is undoubtedly running through all our english institutions, even the administration of the criminal law, a certain amount of class snobbery which it would be better should be eliminated. judges and magistrates are, of course, only human. the wrong doing of a man or woman of our own class naturally appeals to our bump of forgiveness more readily than that of a slum dweller whose temptations and environment we know nothing about. thus we can remember cases where lady shoplifters were discovered by eminent physicians to be suffering from some extraordinary form of neurasthenia--not insanity, of course--but one of those nervous breakdowns that made an acquittal and a rest cure in a nursing home the only appropriate course. magistrates seem to grasp the medical facts about these well-to-do unfortunates almost too readily; but had it been a drunken woman snatching a pair of boots from a shop-nail in the street no eminent physician would have diagnosed her peculiar form of neurosis. even if her husband had tendered evidence that of late the poor lady had been strange in her manner, he would scarcely have been listened to with much sorrowful attention. the good magistrate would have felt bound in the interests of the poor tradesman to make an example of this criminal. such cases are not cases for acquittal, and the rest cure is generally three months hard. there are certainly too many cases where the wealth and position of a prisoner leads to favoured treatment in the criminal courts. i am glad to note that these are always pilloried in the press and publicity is given to them, and in a way nothing could be better because it is the open door that has done so much to keep our courts free from the taint of any suspicion of real corruption. i firmly believe that when these cases do occur they are generally the outcome of a spirit of humanity on the part of the presiding judge coupled to a certain extent by a class feeling of tenderness on account of the terrible downfall of a man or woman in his own social position. such cases, too, are rare. no special note is taken of any case where the law takes its ordinary course and the rich criminal is treated in the same way as his poorer brother. these are, of course, the great majority, and there are also many cases i am glad to know where leniency and mercy is extended to the poor criminal and he is helped by societies and personal aid to regain his position among honest men. but with all this the poor man can point to too many instances where rich hooligans running amok with a motor car in regent street or assaulting the police on a racecourse are let off with a fine. here is a curious case from the london sessions that is bound to cause a lot of talk in the mean streets. a fashionably dressed young man was indicted in an admittedly false name, and was allowed to use it for the purpose of the proceedings, and pleaded guilty. he had obtained a sable stole, value £40, from a costumier in shaftesbury avenue by false pretences. he had opened an account at oxford. he received a cheque book and then withdrew his money and closed the account. he used to obtain goods which he paid for with cheques on the oxford bank, and cheques to the amount of £5,241 6_s._ 3_d._ had been returned marked "no account." a detective said he was a young man leading a fast life. the city police had a warrant for him for obtaining a ring value £145 and a gold watch £15. these articles it is true were returned. the oxford police had a warrant out for him and when arrested he was attempting to obtain a valuable fur article in dover street. his counsel urged that his parents were people of respectability and integrity who had suffered losses, and the young gentleman was trying to keep things going in the same style he had been accustomed to, and had come under bad influences. that is the whole story, and the report ends, "the defendant was bound over, the magistrate remarking that there was no need to cause his relatives to suffer by mentioning his name." how many poor men and women whose children have been taken away from them for long terms of years to a reformatory or sent to gaol for months with hard labour, to the knowledge of all their neighbours, will read that report, and what will they think and say of the justice of our criminal law? one pities the parents and relatives of this particular young criminal waster as one pities the parents of all children and the children of all parents when one or the other bring disgrace or ignominy on the home--but why is this one particularly undesirable swindler to be allowed the privilege of an alias in an indictment, and why is his name alone among all the prisoners arraigned at the sessions to be kept from the world? and how hard it will be on some youngster of like criminal tendencies when he comes before a court where harsher methods prevail, and he finds that not only is his name brutally noised abroad, but offences of this character are deemed worthy of imprisonment. one would not wish to say a word against leniency to the young however much it may savour of class-tenderness, but the concealment of a criminal's name on his trial because his parents are well-to-do and respectable, is just one of those things that the poor people treasure up and quote as an instance of the law's unfairness. at a time when every effort should be made to impress on the poor the impartiality of the law little cases of this kind, arising no doubt from motives of kindness and humanity, are exaggerated and quoted as typical of our criminal administration--which assuredly they are not. in cases where the whole of the resources of the state are against the prisoner fair play demands that everything that can be done for him without detriment to the demands of justice should be done. in a case of murder which created a great sensation this year, the whole evidence turned on identity. several witnesses came to the police and said they had seen the victim, a child, in company of the prisoner. other witnesses had stated to the police that they had seen the victim in company with a woman. during the examination of the police inspector in charge of the case he was asked by the defence for these statements, the magistrate expressed his opinion that they should be shown to the solicitor for the defence, but the counsel for the crown, a gentleman of very wide experience, "suggested that the proper thing for the solicitor for the defence to do would be to go and see the people." i do not for a moment say that the learned counsel was inaccurate in his statement of a legal proposition. it may be that such is the law; but if it is what does it mean? the police have honest statements of citizens in their hands suggesting that a man has committed murder, they have equally honest statements from other witnesses that the murder has been committed by a woman. however mistaken they may believe the latter statements to be, surely fair play demands that the prisoner should have access to these statements for what they are worth. after all he is at present to be deemed an innocent man, he is not even committed for trial, and he is a citizen with as much right to the protection of the police as any other. if they have statements going to prove his innocence he ought to have access to them and be told who has made them so that he and his solicitor can see how far they help to prove his case. but no, that is not the official view. counsel for the crown no doubt states it correctly. the proper thing is for the solicitor for the defence to go about at the expense of the poor man he is defending and find these people out and take statements afresh. it is a denial of justice, the man has not the money to do it, his solicitor is not a charitable institution, and even if he were he probably has not money and staff for such work. in this particular case the whole of the police had scoured london for evidence to clear up the mystery. surely when a citizen was charged with the offence public interest demands that the matter that has been discovered that goes to prove innocence should be as readily available as matter that goes to prove guilt. the present practice is to my mind a tradition, handed down from the bad old days, that needs to be swept away. we ought to free our criminal law from any shred of suggestion that the state is out to obtain a conviction rather than an acquittal. the state is only interested in the truth and justice of the verdict, and a true verdict obtained by methods of injustice is a crime against the community. much might be said on the inequality of punishments. the question of the advisability of corporal punishment is one upon which people hold strong and conflicting opinions. i am not a sentimentalist on this subject. i am told by some quite sane and scientific thinkers that for men, women and children of the hooligan class who have a mania for violence and destruction it is probably the most appropriate form of punishment. its good qualities are that it is cheap; it is soon over, but irksome whilst it lasts; and it is said to appeal to the homeopathic instincts of the hooligan class who recognise the justice of meeting violence by violence. against these positive merits it is very unequal in its incidence; one victim will suffer more than others over the same punishment; and it is brutalising, in some measure, to the flogger and floggee. too much may be made of this last argument, for nothing can be more brutalising and deadening to all hopeful and better instincts than long terms of imprisonment. on the whole, my instinct is against flogging, because i am an optimist and believe that though it has had its uses in the past as an educative influence we have come to a state of civilisation when we should abolish if possible all violent or cruel punishments. there was a lot perhaps to be said for thumbscrews in their day, but that day is admittedly over. my grumble about the cat-of-nine-tails and the birch is not so much that the law should put them in the cupboard once and for ever, but that if they are to be used at all, their lashes should, like god's good rain, descend on rich and poor alike. take the crimes for which flogging is permissible punishment to-day. for adults there is garrotting, offences under the criminal law amendment act, procuring, etc., and being an incorrigible rogue. for lads under sixteen, stealing and malicious damage. now the first objection to these punishments is that whether flogging is or is not to be administered depends altogether on the taste and fancy of the presiding judge. some think it is an advisable form of punishment; others view it with disfavour. this element of human lottery in the administration of the law should surely be kept under as far as possible. out of a hundred and forty-five criminals convicted of robbery only three were flogged. an intending robber therefore who studies judicial "form" in the statistics will see that it is about fifty to one against the cat, and if he is the one unfortunate surely he has a distinct grievance against the forty-nine lucky blackguards who escape. when only three criminals receive this punishment in one year it is worth while considering whether it should be continued, or, if it is to be continued, whether it should not be extended to crimes against women and children and other nameless horrors. highway robbers to-day are all of the lowest and the poorest, but in the other category of crime there are sometimes men of means who find their way into the dock. if it ever comes to be recognised, as butler in his beautifully prophetic account of the land of erewhon would have us believe, that crime is a disease and should be treated by a family straightener, as we now call in the doctor, then all doubts as to corporal punishment will disappear. the erewhonians when they had lapsed from the path of honesty took, under their doctor's advice, a flogging once a week and a diet of bread and water for three months on end with the same heroism and resignation with which we undergo a cure at harrogate after a london season. once recognise that the birch rod is a cure for dishonesty, violence, and malicious injury to property, then all sensible men and women afflicted with these tendencies would welcome the cure and visit their straightener as they now visit their dentist. but at present we are far from the realisation of these sane, clear-sighted dreams. flogging, as the law uses it as a punishment to-day, is not used, i fear, merely as a remedy or even a deterrent but rather by way of revenge. it is almost wholly used against the very poor and degraded. even under the white slave act, i cannot remember any case in which it has been used against a well-to-do man. in any case it is only available against the actual procurer and not against the landlords, ground landlords, restaurant proprietors, and dressmakers, who knowingly share in the woman's earnings and live on them. flogging may, or may not, be an advisable form of punishment, but if it is to be used, let it be administered automatically and without fear or favour to all beasts and blackmailers and hooligans, be they rich or poor. at present the chances of a rich man being flogged for his wickedness on earth are about the same as those of the camel with an ambition to loop the needle. chapter xi the police court _squeezum._ the laws are turnpikes, only made to stop people who walk on foot and not to interrupt those who drive through them in their coaches. fielding: "the coffee-house politician." act ii., scene ii. when fielding was made a magistrate for the county of middlesex in 1748 the popular notion of the office was expressed in the nickname, "the trading justice." he was paid by fees and had a direct interest in the prosperity of crime. the fees, moreover, were very small, and it was a recognised thing that he should make his office a lucrative one by methods exemplified by mr. justice squeezum in fielding's farce. although the great writer fulfilled the duties of his office with honour, fidelity, and zeal, he has left us in no doubt about the immorality and ignorance of many of his fellow justices. it is a relief to turn from the justice room in bow street in the eighteenth century with its rogues and vagabonds on their way to the whipping posts of the bridewell, and its highwaymen and thieves starting for tyburn by way of newgate, and to look on the comparatively civilised picture of a metropolitan police court of to-day. a century and a half has worked wonderful reforms for us in the world of police and police courts, but one cannot honestly say that nothing remains to be done. direct bribery is no doubt abolished, justice is fearlessly administered, but there are still traditional methods of imposing fines and imprisonment which cause the poor to think that carriage folk go more easily along the turnpikes of the law than those humble ones who travel perforce on foot. i am not writing of the police court as the antechamber of the old bailey. in relation to the grave crimes against society we may fairly boast that rich and poor are treated much alike. but the police court in matters within its own jurisdiction is a machine for teaching better manners to the poor. it is a somewhat harsh machine, perhaps, but in the main just and necessary at the present state of our evolution. when folk are naughty and violent and ill-mannered and ultra-selfish, and become a nuisance to their neighbours, the police, if they are poor, take them in hand, but if they are rich they are dealt with differently. unless they are so extravagantly and absurdly naughty as to become a public as opposed to a private nuisance, there is no necessity for the police to tackle the rich. when two "lydies" go for each other in the gutters of whitechapel the police step in, but when the same thing happens in mayfair, society--with a big s--maintains its own discipline. the reason why rich folk are not so outwardly naughty as poor folk is very much a matter of education and environment. as lord haldane in his valuable speech in america explained to us, there is a "system of habitual or customary conduct, ethical rather than legal, which embraces all those obligations of the citizen which it is 'bad form' or 'not the thing' to disregard." thus in the days of sir anthony absolute it was "bad form" not to get drunk after dinner, and it was "not the thing" to refuse to fight a duel. these laws of conduct were not enforceable before magistrates, but they were laws all the same, and rich people dared not disobey them for fear of being "cut" by society. and as the years roll on better education, better housing, better wages, and less of that repressive sabbatarianism that drives the poorer youngsters into natural mischief will make the police court less and less necessary as a school of manners. the conscience and good manners of all classes attain a higher ideal every day, and the only reason the rich arrive at a better standard of outward manners than the generality of the poor is that they have been caught young and made to practise at it for generations. it is not a matter entitling them to praise, but we are out to set down and discuss facts, and undoubtedly it is so. for instance, you would expect an eton boy to play better cricket than a st. andrews caddie, but the caddie would probably beat the other's head off at golf. it is environment that does it, and the lesson to be learned is to improve in every way the material surroundings of the poor to the utmost of our ability. meanwhile the police court seems to me as necessary a part of our equipment as a sewage works or an ashpit. crime is not only a matter of heredity and education, it is also a question of geography. this geographical distribution of crime is an intensely interesting subject. you will find that cardigan, for instance, is the whitest county in england and wales for crimes of all kind, whether against property, morals, or of a violent character. glamorgan, on the other hand, is only beaten by monmouth in records of crimes against property; in crimes of violence glamorgan is easily first; in crimes against morality glamorgan again is only beaten by dorset, berks, lincoln and huntingdon, the latter taking the 1905-09 record very comfortably. monmouth, happily, in this latter class of crime is in a far better case than her neighbour. if you can trace the history and causes of different crimes in different districts i believe you may hope to sterilise a county of certain crimes by moral sanitation and stamp them out just as we have rid counties of typhus and the plague. in dealing with uncivilised crimes of mischief and destruction we should always bear in mind that the poor who do these acts are very often only human beings who have not been cultivated up to modern standards. some crimes are traditional in certain districts, and the imitative faculty being strong in criminals, heredity and mimicry work together to cause a certain historicity in crime. magistrates and others do not sufficiently study this. patriotic county officials loudly deny what everyone who reads the judicial statistics knows to be true. in discussing the edalji case i pointed out that to anyone who studied the history of crime it was far more likely that such crime would be committed by a native of the county than by a gentleman of parsee descent. this seemed to annoy some ardent staffordshire folk, but there is no reason why it should. killing and maiming the cattle of others is a very ancient pursuit and has only recently been regarded as criminal. the wicked man in the bible was often threatened with the destruction of his cattle. no doubt the righteous man was encouraged thereby to take upon himself the duty of avenging his wrongs by destroying his wicked neighbour's cattle, and the wicked neighbour, believing himself to be the righteous one, retaliated in kind. certain it is that in border countries we always read of cattle raiding and killing and maiming, and perhaps one reason why staffordshire is old fashioned in the cattle-maiming business is that it was a border country, and in the good old days the lords and squires raided cattle and destroyed their neighbour's farms and boundaries, and these antiquated habits remain with some as natural instincts of revenge. in early days such acts were not considered criminal. the only malicious injury to property known to the english common law as a crime was arson. it was not until the time of henry viii. (37 hen. viii., c. 6) that it was discovered that there were "divers sundry malicious and curious persons, being men of evil and perverse disposition and seduced by the instigation of the devil, who, to damnify the king's true subjects went about burning frames of timber ready to be set up and edified for houses," and broke down dams and moats or cut away lead pipes, or barked apple trees, or cut out beasts' tongues, which seems a very ancient and horrible form of maiming cattle. the penalty for these latter offences was the inadequate fine of ten pounds. in 1722 came the black act which made it felony without benefit of clergy to "unlawfully or maliciously kill, maim, or wound any cattle." in 1861 a malicious damage act (24 & 25 vict. c. 97) was passed, codifying all the law relating to such offences, and that is the act under which mr. edalji was indicted. i have worked out the geographical statistics of cattle maiming in england for forty years, from 1861 to 1900, and they are extremely interesting. in the first place it is well to know that the total number of such crimes is rapidly decreasing. in five years, from 1865 there were over a hundred cases; in five years prior to 1900 there were less than fifty. the counties, which total more than twenty cases each, are york, sussex, middlesex, lincoln, lancashire and staffordshire. somerset and gloucester have nineteen cases, but gloucester has only one case since 1882 and somerset only six cases since 1870. surrey has only eleven cases, and only five occur since 1870. anglesey and westmoreland have only one such charge each during the whole forty years. in the case of staffordshire, in the twenty-two cases taking place from 1861 to 1900 fifteen cases had taken place since 1877, and there is never a clear five years in the period without a case. in 1903, when the wyrley outrages took place, it seems to me that a county with this history would have been sensible to look at home for the criminal. in counties such as somerset and surrey, where the offence seemed then to be dying out, the same considerations would not apply. whereas in westmoreland or anglesey the expectation would be that the crime was committed by a stranger. i do not think it would be wise to press these speculations too far, but at the same time i think magistrates and police might make greater use of the wonderful statistics that are collected and published by the state at such great expense and learn useful lessons from them in their daily business. whilst we condemn the horrible savagery of such crimes it is only fair to remember that the law does not punish them for their cruelty, but only for their injury to property. prevention of cruelty to animals is a far more modern branch of law, the beginning of which dates from 1822. when lord erskine moved his bill against cruelty to animals in 1811, so absurdly sentimental did it seem to the assembled peers that they drowned his speech in a chorus of cat-calls and cock-crowing. it is well to remember when measuring punishment in the police courts that there are individuals and classes existing to-day that are scarcely more civilised than the lords and barons of a hundred years ago. the feudal lords and their henchmen did many things in the good old days in their quarrels with their neighbours which to-day would bring them before the justices. they wounded with intent, they did grievous bodily harm to anyone who annoyed them, and they did as much malicious damage to property as seemed in their own eyes a fair set off for insults had and received. among a certain small degraded class in our own country these traditional pleasantries of the country-side are not fully recognised to be crimes. there are a set of men among whom it is not "bad form" to commit these acts. this form of atavism requires not only pity but further and better repression at the hands of capable police. as long, therefore, as we have these hereditary tendencies to crimes of violence and selfishness, the police court seems to me to meet a felt want. i can imagine a better world without any police court, just as i can imagine this world with a better police court. but i should like to see imprisonment kept entirely for evil-doers, and that side of the police court work which consists in rate collecting and semi-civil proceedings transferred elsewhere. at present many are sent to gaol in the police court for the crime of poverty. in the cases of non-payment of rates or of orders on parents to pay subscriptions to industrial homes it seems a very bad policy to send a poor man to prison. it takes a man from work, it does not produce money, and it throws a family into the workhouse. in these cases there is no pretence of proving a man's means and sending him to gaol because he can pay and won't. no such evidence is necessary. the man goes to prison because he is poor and has not the money to pay. if the state thinks fit to put a man's child in a reformatory, one would think it might stand the expense of it, without ruining the home by imprisoning the father because he cannot subscribe towards his keep. with regard to orders for maintaining a separated wife, or affiliation orders, everyone would have less sympathy with the man who is sent to prison for not paying these. but if a man has not the money he does not make any in prison, and what these poor women want is regular weekly money. these are special cases in which i think power to attach a man's wages up to a certain percentage would be a just and reasonable proposition. such a law might be unpopular with mankind, but it seems fair to the women. whether it would tend to increase or decrease maintenance and bastardy orders i have not the least idea. "five shillings and costs or seven days." this familiar phrase, as count smorltork says, "surprises by himself" the whole philosophy of police courts. nothing is more marked in the treatment of rich and poor in the police court than the unfair incidence of fines. take, for instance, the common case of a motor-car driver being fined forty shillings and costs for exceeding the speed limit and driving to the danger of mankind. if his master is a cabinet minister, say, he writes a civil letter to the clerk to the magistrates expressing his regret and enclosing the needful, which is just two five-thousandths of his official income. but supposing he is a taxi-cab driver who owns his cab, or is buying it on the hire system, as many do. he, too, is fined forty shillings and costs, and as he earns, let us say, forty shillings a week, he has to pay one fifty-second of his income. if he cannot raise the money his home is distrained on, or there is the option of imprisonment. that kind of option never worries the cabinet minister or the chauffeur thereof. in the old tithe days the parson took his tenth from rich and poor alike, and was no respecter of persons; all he wanted was one-tenth of your income in cash. as between cabinet minister and cabman the relation of fine should be as two pounds to ninepence--that is to say, if the law in the police courts desires to treat rich and poor alike. there is no difficulty about doing this. all that is wanted is to enact in your statute that the fine should "not exceed one-fiftieth or one one-thousandth of a man's income." then all would be fined off the same mark. at present the poor man is the scratch man, and the greater the wealth the longer the handicap. as to costs, they should be wholly abolished. they are not only an odious tax on the poor, but they give the officials of the court an unholy incentive to make the court a paying concern, and, what is worse, give every clerk and officer in the police court a direct pecuniary interest in convictions. as things stand to-day a council of city men are not likely to advance salaries where their police court is losing money. a godly and righteous police court should glory in losing money year by year. and whilst i recognise that at the head of each police court there should be a stipendiary to deal with the more important cases, and always to be within call when there are cases to try in which the local magistrates have a class interest, yet i have no desire to abolish dogberry, nor do i take any pleasure in reading that he has written himself down an ass. in our chief cities there are now excellent stipendiaries and magistrates of all classes, including representatives of working men, and all can testify how--taking the police court system as it stands--it is worked fairly and carefully and to the advantage of all. but these places are far ahead of the county towns and districts where the squire and parson reign supreme, and the clerk to the justices is their own faithful attorney. i believe thoroughly that these men do their best, but it is quite impossible that they can take a normal view of such horrible crimes as the rape of a pheasant's egg or the snaring of a hare. it is from the beautiful little corners of the lovely english country that the bitter cry of injustice in the police courts makes itself heard from time to time in the public press. why should not every hamlet have its village plowden to brighten life on the country side? there we see, let us hope, the last of a decaying and rotten system--justice administered by a class unlearned in law, and unlearned in a far more important branch of their business--the knowledge of the works and days and temptations of the fellow sinners whose judges they have elected themselves to be. in the remote country places more than anywhere is the stipendiary a necessity. meanwhile, why should not direct representatives of the agricultural labourer be placed upon the bench if we are not to abolish dogberry altogether? while these words are being written, an effort is being made with a criminal administration bill to do away with some of the abuses of the police court. the imprisonment of people for non-payment of fines is really imprisonment for poverty, and the scandal of it is at last officially recognised and the necessity of reform admitted. that, at all events, is to the good, though it is to be hoped that if the bill at present put forward is to pass it will be widely extended and simplified. it is quite a good thing to enact that it shall be obligatory upon magistrates to grant time for the payment of fines, but seeing that the magistrates have always had this power and never used it to any useful extent it would be well that there should be less discretion about the matter. law for lay magistrates should be automatic and fool-proof. when you enact that a magistrate is obliged to allow time for payment of fines, "unless the court for any other special reason expressly directs that no time shall be allowed," you are surely inviting the average justice to supply himself with special reasons why he should not carry out a law which you know by his past history he dislikes. it must not be forgotten that in manchester, although the fees legally allowed for a summons are twelve shillings, the practice has been for fees not to exceed the fine. imprisonment for less than five days--which in the future is not to be permitted--has for a long time not been allowed by the practice of the manchester justices. where justices desire to be lenient and enforce the law temperately they can do so to-day, and therefore it is clearly no use in a new statute to leave a discretion to those who will certainly abide by old and evil customs unless they are forced to do otherwise. the statistics of the police courts show that in one year 92,000 citizens were imprisoned in default of the payment of a fine and 80,000 imprisoned without the option. the number of persons sentenced to pay fines is no less than 460,000. every year new statutes are passed making new offences which can be committed with practical impunity by those whose purses are long enough. under the heading betting and gaming, 3,346 persons were fined and only 738 went to prison. under the heading motor cars, 10,631 were fined and only 36 went to prison in default; under the heading sunday trading, 6,654 were fined and only 12 went to prison by default. these offences are generally committed by persons with some money; but where the parties are poor what a terrible difference in their punishment. the mere giving of time to pay fines will not abolish this injustice unless the fines are made, as has been suggested, in some ratio proportionate to a man's income. if it were enacted that a fine should not exceed a day's wage earned by the prisoner, that would be a method of doing away with the burden of useless imprisonment that has to be borne by the poor. it is no use enacting that the court in fining an offender shall take into consideration the means of the offender. i make no doubt that this is done already to a large extent by stipendiaries and the more enlightened magistrates. what is wanted is an actual printed tariff of fines fairly proportioned to the means of the offender, beyond which the magistrates may not go. measures that depend on the sympathetic working by the members of the bench will be in many districts a dead letter, and inasmuch as the folk who go to prison in these cases are always poor people, very little will be known of their trouble except by those few persons who study blue books and statistics. this habit of the magistracy to ignore the good intentions of parliament and the home office is in nothing more marked than in the refusal of many country benches to give bail to poor people charged with offences that have to be tried at sessions or assizes. many judges have called the grand juries' attention to the large number of prisoners who are left in prison awaiting trial, some of whom are ultimately acquitted. but this is one of the matters where magistrates must of necessity have discretion, and although they receive home office circulars calling attention to their duties in the matter of bail they prefer to go their own wrong-headed way and unnecessarily keep a large number of poor persons in prison who might quite safely be allowed to remain out on bail. it is curious how history repeats itself and how a lay magistracy, as a type, always tends to act without sympathy or consideration for the poor. a hundred years ago the yorkshire magistrates came to the conclusion that it was a most improper thing that poor people committed for trial to the house of correction should be allowed to idle their time away at the expense of the county, so they actually required them to work for their living, and as the treadmill was the only apparatus of a commercial character in the gaol the poor untried prisoner was put to walking round a wheel in company of his convicted brother. the way in which the matter was put by mr. john headlam, m.a., chairman of the quarter sessions for the north riding of the county of york, is a perfect specimen of the true dogberry temperament: "with respect to those sentenced to labour as a punishment, i apprehend, there is no difference of opinion. all are agreed that it is a great defect in any prison where such convicts are unemployed. but as to all other prisoners, whether debtors, persons committed for trial, or convicts not sentenced to hard labour, if they have no means of subsisting themselves, and must, if discharged, either labour for their livelihood or apply for parochial relief; it seems unfair to society at large, and especially to those who maintain themselves by honest industry, that those who, by offending the laws, have subjected themselves to imprisonment, should be lodged and clothed and fed, without being called upon for the same exertions which others have to use to obtain such advantages." of course the whole question is begged when an untried prisoner is called an offender against the laws. the headlam view of him always has been, and is to-day, that the mere fact that a policeman has arrested him is proof that he is an offender; this for all time has been justices' law, but it is doubtful whether the old doctrine that a man is to be deemed innocent until found guilty by a jury of his peers is not still sound law and ought not to be more fully recognised by the lay magistrates. of course the particular wrong that mr. headlam was contending for has long been abolished, not indeed without much argument and trouble, but we still punish an untried man by imprisoning him before trial, and in very many cases this is wholly unnecessary. the idea of keeping a man in prison is that he should be forthcoming on the day of trial. in some serious cases it is obviously necessary to keep a man in custody, but in many small cases if a cheap bail was fixed there would be no difficulty in finding the sureties and the prisoner could be outside arranging for his defence and earning money for the support of his family until the day of the trial. of 598 people acquitted at assize courts only 294 were allowed bail, so that there is a clear admission in the official figures of three hundred innocent persons--or persons not provably guilty--remaining in prison because the justices will not carry out the home office suggestions as to bail. remember too that in some remote places there are very few assizes and eighteen of these unhappy persons remained over three months in prison awaiting trial. at quarter sessions the figures are even more remarkable. of 1,586 prisoners acquitted only 688 had been granted bail. here you have a large number of innocent men and women kept in gaol charged with offences that are not of the most serious character, and this is done not because in this peculiar instance the law itself is harsh--because the law permits bail and the government office calls on the magistrates to make use of the law--but because the law is administered by well-meaning but incompetent men who have a fixed delusion, handed down to them from their forbears of hundreds of years ago, that a man arrested for a crime by the police and awaiting trial is, to use mr. headlam's phrase, "an offender against the laws." where there are no stipendiary magistrates it would not be a bad plan to give any prisoner a right to appeal on refusal of bail to a judge of the county court who lives within the district and is of necessity a magistrate though he seldom has much time to sit at petty sessions. before we leave the police court i should like to draw attention to a well-founded complaint against police methods that the home office might certainly take into their consideration when they are reforming the administration of the criminal law. i refer to the practice of identification which has come so prominently before public notice in recent criminal trials. i never met a prisoner who felt that it was fairly done. for myself, i have the firmest belief that the police endeavour as a rule to do what is right and straight, but after all we must not lose sight of the fact that the police are there to clear up the crime and to run in somebody--the real criminal of course for choice--and it seems hardly right to put them at this very critical moment into the position of a judicial authority deciding the most important point for or against the man they have arrested and believe to be guilty. i have always wondered what legal right a policeman has to put you in a row with a lot of other men and bring people to look at you. suppose a prisoner refused to undergo the ordeal and the policeman used force to compel him, could the prisoner recover damages for assault. these are recondite, and in a sense absurd points; but they do, i think, help one to see how wrong the present system is. at the ceremony of identification it is obviously necessary that there should be a presiding magistrate to see fair play and to take a record of what happened. it is really a part of the trial and a most important part of the trial. that a witness should identify a prisoner in a police yard in the absence of a judicial authority is clearly an unjust thing. once he--or more especially she--has done so, the further swearing to the prisoner when he is in the dock is nothing. what the magistrate ought to see is the demeanour of the identifier when he first recognises the prisoner and especially ought a justice to be present to see that there is no suspicion of unfairness in the methods employed by the police. we have had so many tragedies brought about by so-called identification, that it is more than time that the business of it was taken out of the hands of the police and made an integral part of the trial before the magistrate to which it in truth belongs. these reforms will not, i think, come about until we have stipendiary magistrates on the county benches, but though i wish to see this i do not want the old office of justice of the peace to be abolished. there is, and rightly ought to be, a keen desire among laymen to attain to this position, and it is an office of much dignity and respect and one in which a good man under sound legal advice can do worthy public service. i have been a local justice of the peace for many years and can testify to the number of occasions upon which a magistrate residing in his district is called upon for small services that would cost the applicant time and money if there was no available magistrate. a great many lay benches with a clerk of sound learning and legal education administer excellent justice throughout the country. but there are classes of cases connected with property that would be better tried by a stipendiary unconnected with county society. i have a passion for old-world things, and grieve over the disappearance of the parish constables, the head boroughs, the tithing-men, the aletasters, the beadles, and the reeves. i do not wish to abolish the justice of the peace. i only wish to put him in his proper place. of course, if he cannot be happy there, then i am afraid he will have to go. chapter xii landlord and tenant at number seven there's nob'dy lives, they left it yesterday; th' bum-baylis coom an' marked their things, an' took 'em a' away. they hardly filled a donkey cart--aw know nowt wheer they went- but they say th' chap spent his brass o' drink instead o' payin' th' rent. samuel laycock: "bowton's yard." in this branch of the law it cannot honestly be said that the legal position of the poor is very different from the legal position of the rich. given private ownership of land and the right of a landlord to distrain for rent in arrear, and seize and sell his tenant's goods to pay himself, it does not seem that the law or the way in which it is administered is better or worse for rich or poor. the law of distress is, as its name implies, a harsh and cruel remedy and the shadow of it hangs nearer and darker over the cottage porch than over the doors of the eligible mansion, but it is there in both places. to a weekly wage owner paying an exhausting rent out of a pitiful wage, the ever present right of his landlord to distrain, whilst it nerves him to make every effort to keep a clean rent book, must be one of the sad and depressing elements of daily life that the middle classes do not experience so directly. it is pleasant to record--what is in fact my experience--that whatever may have been true of the cruelty of landlords in other times and places the landlords of to-day owning cottage property are not a harsh race. they themselves, especially the poorer ones, have their own troubles. the rates have to be paid, the by-laws to be observed, the notices of the sanitary inspector to be obeyed, and perhaps the fact that they themselves have to ask for time to pay and to sue for leniency from corporations and other officials leads them to be tender with their own underlings. certain it is that in the putting in force of the right to evict a tenant the landlord is very long-suffering. this last step is not usually taken until the rent is many weeks, or often months, in arrear. even when an eviction order is granted, i have known many cases where a landlord renews the tenancy and collects the arrears at small instalments. eviction orders are very often asked for not in the landlord's own interest but in the community's. the necessity to do the sanitary requirements of public bodies is a constant source of eviction. the tenant having no neighbouring house to go to clings to the undesirable shelter he has got until the forces of the law turn him out in the interests of hygiene. another curious cause of eviction is a woman's tongue. a lady with what is technically known as "a tongue" will set all her neighbours by the ears; houses on each side of her domicile rapidly empty, and at length the whole street comes to the landlord demanding that she shall go or threatening to depart themselves. the lady with "the tongue" of our day was, and as far as i know still may be, known to the law as a common scold, and according to chief justice holt was punishable by ducking. mrs. foxby, of maidstone, was, if i remember, the last lady who was indicted at common law for this offence and sentenced to be ducked. she moved, in trinity term, 1703, in arrest of judgment because they had called her in the indictment "_calumniatrix_" and not "_rixatrix_" and insisted on her motion, although chief justice holt in kindly warning reminded her that ducking in trinity term was pleasanter than ducking in michaelmas. as the court pointed out, mere scolding was not the offence, it was the constant repetition that was the nuisance. in the result, after a year's litigation the flaw in the indictment saved the maidstone lady a ducking in the medway. but though the common scold and the ducking stool no longer figure in the quarter sessions calendar--though it would rest with the court of criminal appeal to decide if they are yet entirely obsolete--the woman with a tongue, the "_rixatrix_," or lady brawler is undoubtedly still existent and has to be dealt with by the landlord of small property by county court eviction. what is called a possession summons is taken out, and in the hearing of it the lady always appears and protests vigorously against the treatment meted out to her, arguing that the street is in a conspiracy against her, and that she is the one quiet peaceful woman in the neighbourhood. any doubt as to the correctness of the judicial decision in making an eviction order is solved as soon as the order is made, when, self-restraint being no longer necessary, the full force of "the tongue" is turned upon the landlord, the judge who is in league with him, and the two stalwart members of the force who with some difficulty show the lady the door. next to dry rot and vermin, a tenant with "a tongue" is the greatest enemy of the landlord of mean streets. but what has long been recognised about the status of landlord and tenant, is that under present economic circumstances it is impossible for a wage-earner to obtain at the expenditure of a reasonable proportion of his income proper housing for himself and his wife and children. the duty of the state to the poor in this matter is gradually dawning on people's minds, they are waking up to the fact that it cannot be done solely by individual effort, and on this subject the law, i am glad to report, is beginning to make serious efforts to set its houses in order. at present legislation has taken upon itself three objects: (1) the clearing of slum areas and rebuilding new dwellings, with powers of compulsory purchase granted to local bodies. (2) the granting to corporations and councils power to close insanitary houses, and to make their owners repair them. (3) the permission to local authorities to build houses for the working classes where there is an insufficiency. we are a slow moving race. we generally do our legislative reforms by a succession of statutes vigorously fought over and hacked about by gay party spirits whose nearest idea of patriotism is to queer the other fellow's pitch and spoil his budding statute by crimping amendments that he knows will make it unworkable. we have only gone a little way with the housing business as yet, and if the next statute on the matter could be put in the hands of a small committee of both parties to draft and bring before the house, perhaps we should get somewhat nearer finality. it is rather melancholy reading to pick up the latest pamphlet of the bookstall on the housing question and find much of the writer's ingenuity wasted in trying to prove that his party, and his only, has in the past made any effort to better the housing of the people, and that in the future there is only one honest capable scheme which is worthy of consideration. there is not much real help in these essays. their burden is always the same. recollect at the election time--"short's very well as far as he goes, but the real friend is codlin--not short." the truth is that neither party has done very much. the history of the matter is much as follows: writers of all parties and creeds in the early victorian days wrote eloquently of the slum dwellings of our great cities. some of deeper insight than the rest saw that all was not well, even with the rose-covered cottage of the country-side. it is only within our own lifetime that we have begun to learn that it is morally and economically wicked for a nation to own slums. this truth has not been taught us by the priests and politicians of our time, but by our men of letters. dickens knew all about it and prophesied in despair that we should have to wait for five hundred years for reform. you remember tom-all-alone's where jo lives: "it is a black, dilapidated street, avoided by all decent people; where the crazy houses were seized upon, when their decay was far advanced, by some bold vagrants who, after establishing their own possessions took to letting them out in lodgings. now these tumbling tenements contain by night a swarm of misery. as, on the ruined human wretch, vermin parasites appear, so, these ruined shelters have bred a crowd of foul existence that crawls in and out of gaps in walls and boards; and coils itself to sleep, in maggot numbers, where the rain drips in; and comes and goes, fetching and carrying fever, and sowing more evil in its every footprint than lord coodle, and sir thomas doodle, and the duke of foodle, and all the fine gentlemen in office, down to zoodle, shall set right in five hundred years--though born expressly to do it." maybe you could not find to-day an exact replica of tom-all-alone's; certainly we have swept away acres of them, but it is still worth while to read and remember such descriptions, if only to remind ourselves what the poor have to suffer if the law remains powerless and inert in the compulsory provision of decent housing. people grumble at state interference, but they forget what made it necessary. rampant individualism led to housing workmen in the tailor's shop, described by alton locke "a low lean-to room, stifling me with the combined odours of human breath and perspirations, stale beer, the sweet sickly smell of gin, and the sour and hardly less disgusting one of new cloth. on the floor, thick with dust and dirt, scraps of stuff and ends of threads, sat some dozen haggard, untidy, shoeless men, with a mingled look of care and recklessness that made me shudder. the windows were tight closed to keep out the cold winter air; and the condensed breath ran in streams down the panes, chequering the dreary outlook of chimney-tops and smoke." when we are wondering how far it is our right and duty to interfere between a man and his house property or whether it is incumbent upon the nation to take upon itself the burden of housing its people, it is useful to look on these pictures of england in the glorious days of queen victoria and albert the great and good. the problems were there then, but it was not the statesmen who saw them and urged their solution. nor was it only sentimental radicals who painted in lurid colours the horrible houses of the people. d'israeli, in "sybil," draws an eloquent picture of the narrow lanes of the rural town of marney, which might be any country town of the south of england--the rubble cottages with gaping chinks admitting every blast, with rotten timbers, yawning thatch letting in the wind and wet, and open drains full of decomposing animal and vegetable refuse, spreading out here and there with stagnant pools--these things were common-places in the homes of rural england in 1845. "these wretched tenements," writes d'israeli, "seldom consisted of more than two rooms, in one of which the whole family, however numerous, were obliged to sleep, without distinction of age or sex or suffering. with the water streaming down the walls, the light distinguished through the roof, with no hearth even in winter, the virtuous mother in the sacred pangs of child-birth gives forth another victim to our thoughtless civilisation, surrounded by three generations, whose inevitable presence is more painful than her sufferings in that hour of travail; while the father of her coming child, in another corner of the sordid chamber, lies stricken by that typhus which his contaminating dwelling has breathed into his veins, and for whose next prey is perhaps destined his new-born child. these swarming walls had neither windows nor doors sufficient to keep out the weather or admit the sun or supply the means of ventilation, the humid or putrid roof of thatch exhaling malaria like all other decaying vegetable matter. the dwelling rooms were neither boarded nor paved; and whether it were that some were situate in low and damp places, occasionally flooded by the river and usually much below the level of the road, or that the springs, as was often the case, would burst through the mud floor, the ground was at no time better than so much clay, while sometimes you might see little channels cut from the centre under the doorways to carry off the water, and the door itself removed from its hinges, a resting place for infancy in its deluged home. these hovels were, in many instances, not provided with the commonest conveniences of the rudest police; contiguous to every door might be observed the dung heap on which every kind of filth was accumulated for the purpose of being disposed of for manure, so that when the poor man opened his narrow habitation in the hope of refreshing it with the breeze of summer, he was met with a mixture of gases from reeking dung-hills." science, medicine, philanthropy, sanitary engineering and enlightened local government have done something to remove many of the horrible things d'israeli describes, but one cannot say that the law has co-operated with much vigour in this beneficent crusade. without law and compulsion the work will never be done as thoroughly as is necessary throughout the length and breadth of the land. the eloquent outcry, from writers of all creeds and parties, demanding better houses for the people at length made itself heard within the walls of westminster. but it was not until 1868 that the torrens act was passed, the first attempt of the legislature to deal with slum property. this was followed by the artisans dwelling act of 1875, which enabled local authorities to compulsorily purchase slum areas and re-build sanitary dwellings. in birmingham, where mr. joseph chamberlain was mayor, magnificent use was made of these powers to the great present benefit of the city. in liverpool, manchester, and other towns something was done, but as the business depended in the main on local initiative, and the spending of money, much more remained undone. a few small measures were passed, but they did not lead to any great practical work being put in hand, and again it was the man of letters who wakened the national conscience. i remember well in the eighties the appearance of "how the poor live" by george r. sims and the interest and sympathy it aroused. there is no exaggeration in the book, but merely a graphic record of fact, and it proves with melancholy certainty the small progress that had been made since the days of dickens, kingsley and d'israeli. it was with a great chorus of self congratulation and the loud braying of journalistic trumpets that on march 4th, 1884, a royal commission was announced to inquire into the housing of the working classes. it is almost forgotten to-day, but in its time it aroused great hopes in the breast of social reformers. sir charles dilke was chairman, the prince of wales himself was a working member of the commission, cardinal manning, lord salisbury, samuel morley, jesse collings, henry broadhurst and other great public men of the day were his colleagues. the overcrowding, the immorality and disease and waste caused by bad housing, the terrible tax of rent on the incomes of the poor were all rehearsed in painful detail before these great ones of the earth. but when one comes to remedies and recommendations, there is nothing except the most trivial and inadequate propositions that the eminent ones can agree upon. their first suggestion is that vestries and district boards should put in force existing by-laws, though who was to make them do it is not mentioned. then they think it would be an added decency to the lives of the poor if there were more mortuaries near their homes to take the dead bodies from the already overcrowded rooms--as though the problem they were there to consider was not the housing of the quick, but the housing of the dead. building by-laws, sanitary inspection, and workmen's trains are a few of the mother partington mop remedies that this great commission had to offer to keep back the sea of troubles that overwhelmed the poor of our great cities in their struggle for decent existence. one cannot blame the members of the commission that so little was suggested. it was inevitable when one remembers that nothing at all is possible in the right direction without a great upheaval which is bound to re-act injuriously on some of the greatest vested interests in the country. a meeting of the great ones in whom the interests vest is not likely to bring about immediate reforms. but at all events here in the pages of the printed evidence are the facts. the horrors painted by d'israeli, kingsley, dickens and george r. sims are at least patiently collated and indexed for us, and now after thirty years we should do better not to expatiate on the little we have done for betterment, but to acknowledge how much we have left undone, and show our repentance in energetic deeds. no one can recognise more clearly than i do the value of such authoritative evidence of facts and details as are collected in the report, but the reading of them only makes one the more impatient at the method of government which can tolerate the continuance of such abuses. in 1900, little or nothing having been done, it occurred to lord salisbury that it was time to have another commission. but it was not until 1902 that a select committee of both houses was appointed to consider, in lord salisbury's own words, how to get rid of "what is really a scandal to our civilisation--i mean the sufferings which many of the working classes have to undergo in order to obtain even the most moderate, i may say the most pitiable accommodation." the problem could not be better stated. the scandal was with us in 1885, it was with us in 1900, and it is with us to-day. at least if we are unwilling or incompetent to solve it let us have done with the constant consideration and further consideration of royal and select commissions which only make the hearts of the poor sick with promises and hopes that can never be fulfilled in our own generation. one cannot here set out in detail the various housing acts that have been passed; there was one in 1900, which apparently led to more insanitary houses being closed than new cottages built. there was another in 1903, with further new provisions and modifications of former schemes, and lastly comes the housing and town planning act, which deals rigorously with owners of insanitary property. this act industriously made use of may help to realise our hopes of the possibility of hygienic pleasances for the poor of future generations. here we have a short record of some fifty years of legislative effort--more or less honest--in which each party has sought to promote measures to help the poor who are oppressed, as lord salisbury said, by this "scandal to our civilisation," the want of decent housing. and yet how little has been achieved, how small the results, how disappointing to find the great men who talked in parliament and sat on commissions and discussed these matters with so much learning and ability passing away and leaving this problem for us to tackle, and we on our part looking idly on and still wondering what can be done. if our schoolmasters had taught us how to make bricks and build with them instead of how to read books and write more of them, better results perhaps had been already achieved. there are many acres of houses in england built prior to 1870 that exhibit all the slum traits that have been so eloquently described in literature, and many millions of our fellow citizens live in houses which fall below the minimum standard of sanitation where the decent separation of the sexes is impossible and the general conditions of life are sunless and miserable. the amount of overcrowding in england and wales is shown graphically enough in the census returns for 1911. overcrowding from a census point of view means that more than two persons live in a room, counting the kitchen as a room, but not the scullery. "thus," as the editor of the land inquiry report tells us, "if a tenement or cottage consists of two bedrooms and a kitchen, the census authorities would only describe it as overcrowded if there were more than six persons living in it, no matter how small the rooms. the census test of overcrowding is, in fact, quite inadequate to measure the full extent of the evil, and there is great need for the adoption of a more accurate one. even adopting this standard, however, the census authorities find that one-tenth of the total urban population of england and wales are overcrowded. this means that nearly 3,000,000 persons are overcrowded." no one who is constantly meeting the victims of this state of affairs, and discussing with them, as a county court judge has to do, their domestic affairs, can fail to be struck with the large amount of infantile mortality and disease, and the prevalence of tuberculosis and the general physical and moral weariness and debility, which may in a great measure be traced to the bad conditions in which the working classes must perforce live because there is nothing better obtainable. the price paid for such accommodation as there is, is a cruel tax on the working man. for the meanest shelter he has to pay anything up to twenty per cent. of his weekly income. imagine a man with a thousand a year spending two hundred a year in rent alone. how eloquent would the official receiver be did bankruptcy supervene, as it probably would, and what homilies he would preach on the rash and extravagant folly of the bankrupt in spending so large a proportion of his income on a house. and yet this extravagance is compulsory to a working man, who has to pay out of his wages for a mere roof over his head money that is badly needed for the food and clothing of himself and his family. i have dwelt on this subject at some length because in most of the chapters of this book my complaint has been that the laws are insufficient to help the poor, because they have in past days been enacted by the rich, and are still being administered by the rich, without knowledge of, and sympathy for, the best interests of the poor. here the problem is entirely different. everyone must admit the energy and good faith of all classes and parties and officials, within the rules of the party game, in their endeavour to cope with a condition of things which is an admitted national disgrace, and a scandal to civilisation. the melancholy conclusion, however, stares one in the face. the result of interminable inquiries and committee meetings and palaver is plain unmistakable failure. the fringe of the subject has scarcely been reached, and the state of affairs which the man of letters portrayed to the shame of our grandfathers is likely enough, it would seem, to be "copy" for our grandchildren and their grandchildren to journalise with world without end amen! and although it would be impertinent in me to pretend to have a remedy for these evils where all the great ones have failed to bring about reform, yet i cannot help thinking that the reason of the failure is the reason of much of our legislative failure--the dread of vested interests and the permissive character of the statutes passed. what is the good of asking a town council of builders and landowners and estate agents to put in force laws that will, or at least are expected to, have the effect of diminishing their incomes? should i, or would you, enforce an act of parliament with any joyful energy when we knew that the more thoroughly we did it the more we should be out of pocket? it is asking too much of human nature. there has been a clear failure in the smaller local governing bodies in putting in force even such legislation as exists for the betterment of the district. the rivers pollution acts are a standing instance of the neglect of duty by local councils. for years nothing was done to put the acts in force, because the smaller polluters were the mill owners, who were members of the local council, and the biggest polluter of all was the council itself pouring crude sewage into the river to relieve the rates. parliament lacked a sense of humour when it expected mill owners and sewage boards to prosecute themselves for river pollution. good work in housing will never, i think, be really effectively done until it is left to the initiative of a medical officer of health or a sanitary engineer, with judicial power to order things to be done and force behind him to have them done. the idea that a medical officer of health should be a servant of the casual butchers and bakers of the town council is, on the face of it, an absurd one. he should be as permanent and independent as are the stipendiary, the judge, or the coroner, for he requires even more than common fearlessness to deal roundly with the jerry builders and slum owners who are his aldermen and councillors, and who at present sit on a committee of appeal from his decisions. as long as these matters are left solely to local bodies the real burden of financial consideration, the lack of personal knowledge of hygiene and sanitation among the members themselves, and the shrinking from enforcing legal hardships on the poor owners of bad property, will alone prevent effective reform. to these natural and honest forces must also be added the weight of vested interests, which deliberately obtain power on local bodies for the purpose of preventing housing reform being put into thorough operation. never was there a greater and louder demand by the people for a fair share of the land they live in. the countryman wants his plot and his cottage, and the town dweller a decent house at a reasonable rent. this is the "condition of england question" to-day as it was eighty years ago. never were there more earnest and sincere people discussing what is to be done and how it is possible to transform slums into decent dwellings by act of parliament. we have a willing legislature, a desire to make laws for the benefit of the poor, and after many efforts the result has to be written down as failure and stagnation. it would almost seem as though voluntary effort in this affair had pronounced itself impossible, and it remains undealt with until those who are the real sufferers by the system feel strong enough to put it right. carlyle in an eloquent passage cries out in his passionate way: "might and right do differ frightfully from hour to hour; but give them centuries to try it in, they are found to be identical. whose land _was_ this of britain? god's who made it, his and no other's it was and is. who of god's creatures had a right to live in it? the wolves and bisons? yes, they; till one with a better right showed himself. the celt, 'aboriginal savage of europe,' as a snarling antiquary names him arrived, pretending to have a better right, and did accordingly, not without pain to the bisons, make good the same. he had a better right to that piece of god's land; namely, a better might to turn it to use--a might to settle himself there and try what use he could turn it to. the bisons disappeared; the celts took possession and tilled." interpreting this passage as one written in the true frenzy of prophecy, two things seem to me to take clear shape in the future outlook of the housing question. in the first place, it would seem that it will have to be settled by a celt, and in the second place it will not be achieved "without pain to the bisons." one would have thought that a better plan would be a small business parliamentary committee of all interests with power to enforce their decrees against owners and corporate bodies. something permanent is necessary, akin to the imperial defence committee, which knows no party politics. are we not here in the face of a real danger to the nation? already endeavours have been made to take this matter out of the common rut of party politics, but these efforts have not been altogether successful, and if the matter is not settled soon there would seem nothing for it but a forcible solution and a merry set-to between the celt and the bison, in which we may expect the celt will get the better of the bison but we cannot be sure that the poor will get all they need even from the celt. chapter xiii the two public houses 1. the alehouse. judged by no o'er-zealous rigour much this mystic throng expresses; bacchus was the type of vigour and silenus of excesses. longfellow: "drinking song." whatever you may think about it you cannot travel from charing cross to dijon through the hop-fields of kent to the vineyards of the côte-d'or without admitting that whether the vine be a gift of good or evil it has come to stay. bacchus is still full of vigour and has as many followers as ever. but the law has nothing to say to bacchus. the law is after old silenus. it lures him into a den and makes him drunk and then locks him up, and the holy willies wag their heads at his shame and collect money for his reformation. there are two public houses open to the poorer citizens--the alehouse and the workhouse. the rich man frequents neither, yet as magistrate or guardian he takes upon himself to lay down the rules by which they shall be run. these fussy, amiable, amateur bosses have conspicuously failed at their job. it is not to be wondered at. as an able manchester business man once said to me of his partner: "he loves sitting on the licensing bench, and thank heaven he does; it keeps him out of the office." but even if the bosses were capable and intelligent they could not hope to succeed in their work. public institutions should be governed by the men who make use of them. the rich man's public-house is so regulated--and what is the result? one may not approve of every detail of cookery or decoration at hotels like the ritz in london, or the adelphi and midland in liverpool and manchester, but the average middle-class man will find in them such reasonable standard of comfort as he desires. there is, at all events, space and light and air, cleanliness, and some luxury. on proper occasions and in fit places there is music, dancing, and billiards, and you may play a game of bridge with your friends when you wish, even for threepence a hundred, in a private room. moreover, there is always food of good quality obtainable at varied prices, and you need not take your drink standing at a counter, though you can if you wish to when there is an american bar. why may not the working man have similar entertainment at the pig and whistle? a complete answer to that question would necessitate a study of the position of artificers and labourers in the middle ages and a short history of the ideals of the well-to-do puritans. the rich have had two objects in view in their legislation about the working-man's public house. a certain section of the rich--the brewers--have aimed at a monopoly of the right to sell him ale, and nothing else, at the biggest possible profit to themselves. a second section opposing the first--the teetotal magistracy--have sought to make the public house as dreary and miserable a place as possible in order to punish the wicked man who wants to drink ale. between the brewer and the puritan the respectable working man with a normal thirst has been jockeyed out of his freedom. swilling and tippling in alehouses and private clubs has been encouraged; the reasonable use of ale--which mr. belloc rightly asserts to be the finest beverage in the world--has been crabbed and discouraged. except an opium den--of which i have only hearsay knowledge--there is probably nothing more comfortless and degrading than the lower-class alehouse of our towns and cities. even in the remote days of plato it was recognised--at all events by philosophers--that there was such a thing as thirst. "no one desires _drink_ simply, but good drink, nor food simply, but good food; because, since all desire good things, if thirst is a desire, it must be a desire of something good." further on in the discussion, socrates addresses ademantus thus: "then for any particular kind of drink there is a particular kind of thirst; but thirst in the abstract is neither for much drink, nor for little, neither for good drink nor for bad, nor, in one word for any kind of drink, but simply and absolutely thirst for drink is it not?" "most decidedly so," replies ademantus--who never on any occasion stood up to socrates and contradicted him. "most decidedly so." "then the soul of a thirsty man," continues socrates, "in so far as he is thirsty has no other wish than to drink; but this it desires and towards this it is impelled." "clearly so." if the licensing bench, and especially the teetotal portion of it, could once arrive as far in their studies of the subject as socrates had done, and could comprehend the zoological fact that man was a mammal with a thirst, they would be on the road to enlightenment, temperance, and reform. of course socrates knew all that the puritans know and a lot more about the rational satisfaction of love and hunger and thirst and the irrational and concupiscent desires that are attached to all natural appetites, but in dealing with the law of licensing in reference to the poor these considerations are not really important. what is wanted is equality. grant to the poor the same reasonable facilities of enjoyment that you grant to the rich, and leave it to public opinion to see that they are not abused. it is a grave disaster that the granting and regulation of licenses should have fallen into the hands it has. mr. balfour's observation "that among all the social evils which meet us in every walk of life, every sphere of activity, the greatest of all evils is the evil of intemperance" is useful as a peroration to any platform speech on the subject, but only makes the judicious grieve that with the opportunity to do exactly as he liked and the ability to draft useful legislation, mr. balfour did nothing whatever to improve matters and diminish the evil of which he was so sensible. section 4 of his act does indeed enable the magistrates to grant new licenses and to make their own conditions as to the payments to be made by the licensee, the tenure of the license, and any other matters "as they think proper in the interests of the public." under this section if there were a licensing bench containing a working majority of friends of the people, men who had no social or political interest whatever either in breweries or teetotallers, it would seem that almost any experiment in model public houses could be made under any regulations that the bench chose to impose on the licensee. mr. balfour was perfectly right in telling us that "love of temperance is the polite name for hatred of the publican"; but what is the right name for love of the brewer? the fact is that with these two warring political factions in the field the ideal public house is not for this generation. no use will ever be made of section 4 under present conditions, because whoever applied for a license, and however noble and beautiful the licensed premises were to be, however ideal the provision of food, entertainment and drink, and whatever the guarantees of good management, the combined opposition of the puritans and the brewers would always strive to defeat or destroy any effort to give the poorer classes pure beer in pure surroundings. the first step you have to take is to convince the unenlightened puritan that the alehouse is, or ought to be, as worthy a public house as the church or the school. this might be done by means of thoughtfully prepared text books of english literature. there is no great english book from the bible downwards that has not incidental good and holy things to tell you of "the inn." what an appetising volume could be written of the inns and innkeepers of charles dickens. how he revelled in their outward appearance and the inward soul of welcome which he found there. how he rejoiced in his sane english way over "the maypole," "with its overhanging stories, drowsy little panes of glass and front bulging out and projecting over the pathway," and honest john willet, the burly, large-headed man with a fat face, intended by providence and nature for licensed victualling. could we have met mrs. lupin anywhere else than beneath the sign of that "certain dragon who swung and creaked complainingly before the village alehouse door"? could mark tapley have acquired his saintly outlook on life anywhere but at "the blue dragon," and are we not full of joy to find him returning there to live happily ever afterwards under the "wery new, conwivial, and expressive" sign of "the jolly tapley"? how pleasant it is to assist crummles and nicholas over their bowl of punch and the beefsteak-pudding in the inn on the portsmouth road. pickwick is a cyclopædia of inns, each with its own human character, good, bad and indifferent. who has not stayed at a "peacock" with a "mantelshelf ornamented with a wooden inkstand, containing one stump of a pen and half a wafer: a road book and directory: a county history minus the cover: and the mortal remains of a trout in a glass coffin"? one could run on in pleasant remembrances of these beautiful and delightful places by the hour, but one imagines that even the most hardened political teetotaller must really know all about them, and perhaps in his dreams strolls into "the marquis of granby" and sips his glass of reeking hot pine-apple rum and water with a slice of lemon in it, and awakens to the horrible imagination that his astral body has wandered instinctively into a manifestation of his master and leader, the incomparable stiggins. one very noticeable matter about any old-world book in which inns are faithfully pictured is that in former days there was a real race of english innkeepers, independent licensed victuallers, not mere brewers' managers. there are still a few remaining with us who keep up the old traditions, but the political forces of brewers and teetotallers have squeezed this excellent race of public servants almost wholly out of existence. you remember the six-jolly-fellowship-porters whose bar was "a bar to soften the human breast" with its "corpulent little casks and cordial bottles radiant with fictitious grapes in bunches and lemons in nets and biscuits in baskets, and polite beer-pulls that made low bows when customers were served with beer." how could there have been such an ideal haven for the weary porters but for the sole proprietor and manager, miss abbey potterson, whose dignity and firmness were a tradition of the riverside? and then the dressing down she gave rogue riderhood. "but you know, miss potterson," this was suggested very meekly though, "if i behave myself you can't help serving me, miss." "_can't i!_" said abbey with infinite expression. "no, miss potterson; because you see the law----" "i am the law here, my man," returned miss abbey, "and i'll soon convince you of that if you doubt it at all." "i never said i did doubt it at all, miss abbey." "so much the better for you." and how much better not only for rogue riderhood, but for all of us, if we could once again make licensed victualling a great and respectable trade, and once again have a race of people managing businesses that they could really take a pride in. the death of the old boniface who owned his house and bought his beer in the open market was brought about by the amalgamation of the smaller breweries in the country, and the purchase of the bulk of the licensed houses by the big breweries. the teetotallers assisted this natural evolution by harassing individual owners with trumpery prosecutions, opposing alterations and transfers at licensing sessions, and surrounding the commercial life of an individual licensee with persecution and annoyance and continued threats of impending ruin. one man could not fight the great moneyed forces of the puritans, and the licensed holder was glad to get out of an impossible trade by selling his interest to the brewers. most of the licensed houses in the country now belong in everything but name to the big brewery companies. their political friends have given them a vested interest in their licenses, and the teetotallers having spent large sums of money and wasted much energy in manoeuvring their opponents into this excellent position, now sit sulkily at the gates of it, and as they cannot do any effective good themselves, take earnest pleasure in preventing any enlightened brewer from making the conditions under which he sells his drink better and healthier for the community. the result is that the poor man suffers. in the whole of this long unworthy struggle between the political teetotaller and the brewer, the higher interests of the poor and the real desires of the working classes are scarcely ever mentioned--still less considered. when he is in sufficient numbers, and is well enough off to do so, the poor man starts a club like his betters, and no doubt these are valuable institutions, but the club at the best does little for the wives and children, and is apt, unless the public opinion of it is sound, to lead a man astray owing to its very privacy. the puritan ideal is to drive the drinker into dark secret places, and as far as possible make his surroundings uncomfortable and degrading. the policy of the future is going to be to encourage the authorities--and, if necessary, get new and more up-to-date authorities--to replace the old dark, dirty puritan pub with a bright and enchanting reformed inn, fit for all classes of folk, with music, entertainment, and all manner of reasonable refreshment. nothing can be done until we recognise frankly that for years we have been moving along a false track towards a mirage castle in the air, and that if anything useful is to be achieved by administration or legislation we must turn our backs on the past and start along a new road. some few facts seem beyond dispute. the mere cutting down of licenses has in itself no demonstrable effect on the evil of the drink habit. the manners and habits of all classes of people are tending to temperance and sobriety, but the consumption of exciseable articles is increasing--last year there was an increase of £5,128,000 over the figures of 1912. what, then, is to be done? i think if we really want to do good in the matter and can approach it without a desire to make dividends out of brewery shares, or make alliances with teetotallers for political ends, we shall have to look to some extent to foreign examples for guidance in our difficulties. all of us who have had leisure and money to see something of foreign countries know that the squalid ideal of the brewer and the puritan is not the only possible solution of such social difficulty as there is in providing reasonable alehouses. the british public-house is a national disgrace thrust by the rich on the poor by means of law. the working man has no chance of amending things, as he has no say in electing the bosses. labour leaders short-sightedly favour the puritans' views. certainly, our public-houses being what they are, it is a choice of evils to keep out of them. but why should public-houses be what they are? i well remember at mayence entering a beautiful public hall--it was a rainy night, or the entertainment would have been out of doors--where there was a fine string band playing excellent music. men, women, and children sat at tables and had ham and bread and cake and beer and coffee, and those who wished to do so smoked. there was no swilling at counters, there was no forced teetotalism, there was no drunkenness; merely domestic liberty for rational enjoyment. why cannot there be sufficient free trade in the beer business of this country to allow an individual or, if you prefer it, an enlightened municipality--where such exists--to copy the sane entertainments of our german neighbours? a working man and his wife and children spend their evening listening to the band in a german beer-garden with as little sense of impropriety as lord and lady de vere and the hon. gladys de vere take their lunch at the ritz, or alderman and mrs. snooks lunch in the french restaurant at the midland. but in england these domestic felicities are for the rich alone. the brewers and puritans have given the poor man a mean tippling-house to booze in, and deny him anything better. his wife is looked upon as degraded if she joins him at the only place where he can spend his leisure, and the rich lawgivers put the true stamp on their own invention by enacting that it is an unfit place for little children to enter. the fact is that the public house should be built in the interests of the public. there seems no great decrease in the desire to drink good ale. it is a national taste, and, if the ale be good, it is probably at least as healthy, or healthier, than drinking tea as tea is brewed in cottage homes. but in the name of liberty and equality, surely if a man wants to drink ale in moderation he should be encouraged to do so in bright, pleasant surroundings, where he can spend his evenings at a moderate cost with his wife and children and meet his friends. he should be allowed to open such a place himself if the municipality will not do it for him, and the more civilised brewers should be assisted and encouraged by the licensing authorities to build big, spacious public houses, where the poor man could obtain similar entertainment to that provided for his wealthier brother. there is something almost shameless in the way in which the law of licensing is stretched to the uttermost for the rich and drawn to the narrowmost for the poor. one picks up a paper with an account of the latest midnight ball--the gayest event of the season--all in the interests of charity, of course. what has become of that closing time which, if overstepped by the poor, means police court for the criminals and loss of license to the innkeeper? it has been extended, no doubt, by a complacent magistrate, and you can sit down to supper at midnight, and all night long you can refresh yourself at american bars presided over by beautiful ladies of the chorus. one gathers there will be no closing time at all, as breakfasts will be served from three o'clock. in the intervals of the dancing there are to be famous music-hall turns. at some of these fashionable dances valuable prizes are given, at others these fall to lucky ones by some form of lot--not lottery, of course, for that would be against the law, and these entertainments are arranged by eminent leaders of society who are always within the law--well within it. it would be ill mannered to endeavour to stop so much innocent enjoyment of a class that has so little real pleasure by enforcing the licensing and other laws to interfere with their amusements. on the contrary, we should seek to use their example and better our own licensing circumstances by an appeal to their precedent. if it is good for leaders of society to sing and dance and sup after hours in their public houses, why should not the rest of society be allowed to follow their example and have their own beanfeasts in ample public houses undisturbed by the law? of course there must be a charity! give me an extension of license in the old kent road and i will provide plenty of charities and plenty of lads and lasses ready to sing mr. adrian ross's refrain: care has gone to sleep till morning, night's the noon of joy. for the young people of the poor are just as fond of a spree as those of the rich, and quite as ready to be charitable to the extent of their means after the same fashion. there is an excellent letter of charles kingsley's written to the "christian socialist" some sixty years ago that might well be circulated among licensing benches by the home office--though i believe it is considered officially to be bad economy to address printed common sense to the unpaid magistracy. naturally, autocrats resent or scoff at advice that has no sanction behind it. the teetotal attitude of mind and the quarrels it aroused very properly disgusted kingsley. he took no pleasure in hearing the water drinkers calling the beer drinkers "flabby, pot-bellied, muddle-headed, disgusting old brutes," and the beer drinkers retorting on the water drinkers that they were "conceited puritans and manichees and ascetics." he saw that the quarrel would not do any good to the cause of temperance, and in his honest enthusiasm blurted out the truth, the whole truth and nothing but the truth about his teetotal friends, like the good old christian warrior that he was. "on my honour," he writes, "unless the teetotallers show a more humble, gentle and tolerant spirit than is common among them i shall advise beer drinkers like myself and mr. hughes (tom brown of the schooldays) either to flee the country, or if their cloth allows them, which mine does not, prove by self-defence that a man can value his beer, and thank god for it with a good conscience, as tens of thousands do daily and yet feel as tight about the loin and as wiry in the arm as any teetotaller in england. honestly, i am jesting in earnest. i regard this teetotal movement with extreme dread. i deeply sympathise with the horror of our english drunkenness that produced it. i honour every teetotaller as i honour every man who proves by his action that he possesses high principle and manful self-restraint.... that a man should be a teetotaller rather than a drunkard needs no proof. also that a man should go about in a sack rather than be a fop and waste time and money on dress. but i think temperance in beer, like temperance in clothes, is at once a more rational and a higher virtue either than sackcloth or water." this was true doctrine then and is true doctrine to-day, and the sad fact that it fell on deaf ears and is still but half understood is the reason of our backwardness in licensing reform and the presence of the degrading public house which the law cherishes and protects. only the other day in a country town, on the application for a license, the police superintendent objected to the house on the ground of the small bar accommodation. his grace the duke, who happened to be in the chair, wanted to know if the proprietor of the house would prepare a plan for enlarging the bar accommodation. what could the proprietor do? the police wanted to herd the drinkers into a bar so that they could pop their heads in and see them all at once without any trouble, the bench wanted to do what the police wanted them to do. the interests of the poor, the cause of temperance, the betterment of the social life of the people were as irrelevant to the case as the flowers that bloom in the spring. at many a licensing session, too, you will listen to solemn warnings by the superintendent of police against the public being allowed to amuse themselves with penny-in-the-slot machines or gramophones or parlour quoits or the like. amusement is regarded with a natural horror by the puritan, and the friends of the brewer see in it a dangerous alternative to the duty of the working man to drink. one police authority threatened the license holders "that if they continued to allow these machines to be used in their licensed premises they did so at the risk of prosecution for allowing gaming." the gaming laws of england with their wholesale permission of gambling in one place and their retail persecution of gambling in another place, and their incapacity to know when a place is not a place or how otherwise, are a public laughing stock, but it is a grievous thing that they should be dragged out to drive a little harmless amusement out of the dingy tavern which is the only public institution the poor man has for rest and recreation. as a matter of fact, these machines, if they are used for gambling, are generally used to see who shall pay for drinks. in some bars in foreign countries a dice-box is always handy for this purpose. three or four friends come in and throw, the loser pays for drinks, and all are satisfied, and having had their drink they go. i am not upholding the custom as ideal, but i see little harm in it. in england, if three or four enter a public house, the etiquette in many places is for one to stand drinks, and for the rest in turn to offer to stand another round--an offer seldom refused--and for the rounds to continue until each has stood his corner. i would not go so far as to insist on a compulsory dice-box in every bar, but i fancy on the whole that it is an agent of temperance. every one who has given any thought to temperance as opposed to teetotalism, is agreed that what is wanted is the gradual elimination of bars and counters and the substitution of chairs and tables and big open rooms. in these must be provided tea, coffee, and all the usual lighter refreshments that you find in the better-class restaurants and hotels. in a big west end hotel you find every afternoon that the lounge is laid out for afternoon tea. i do not see why a working man and his wife should not have their tea in a lounge in their public house. i cannot understand why, if two friends after a day in the workshop want to have a friendly chat, they cannot find an institution where one can have his cup of tea and a muffin, and the other his glass of ale and a sandwich, and both sit at one table in a spacious room with comfortable surroundings, and if they do not heartily dislike it a gramophone to play tunes to them. that is impossible of attainment as the law now stands. if a millionaire was to offer to build in manchester a dozen working-men's cafés on the continental plan where any decent citizen could be pleased to take his wife and children, as our french and german neighbours do, the brewers, the teetotallers, the police, the licensing magistrates and the law would see that it was not permitted. and yet we know by experiment that in proper surroundings, reasonable facilities for refreshment do not lead to drunkenness. in the manchester exhibition of 1887, it being a wonderfully fine summer, and licenses having been freely given for the occasion, there was an opportunity of testing whether under proper conditions opportunity led to excess. i never heard that it did. in the franco-british exhibition where reasonable facilities of refreshment were also given, it is said--and i have no doubt truly said--that though eight or nine million visitors passed through the turnstiles, yet there was not a single case of drunkenness. the problem is really a simple one, if we could only get administrators and legislators, but especially the former, to look at it in the interest of the man in the street. to the big brewery company beer is an effluent, and the public house is the conduit pipe through which they pour it into the public stomach. they have obviously no interest in ideal public houses--and why should they? they are business men on business bent. the teetotallers, on the other hand, regard the drinking of beer as a sin, and any public house as the house of the devil. why should they help the devil to make his house sweet and attractive, and make the path easier for the poor sinner who thirsts after beer? at present the average licensing bench consists of "half and half"--to use a trade term--of these elements. if there happen to be a few cranks on the bench who share the feather-headed notions set down in this chapter, they can always be out-voted by a combination of brewer and teetotaller. and for my part i think we shall stick to our glorious institution of the "tied-house" just as long as the working man intends to allow us and no longer. when reformed public houses are taken up by the men who use the public house, and when labour demands something better, the demand will be met. for the teetotaller is nothing if not political, and when he sees where the votes are, and not before, he will begin to see the error of his ways. meanwhile it will do him no harm to study the statistics such as they are, and discover that the number of licenses in a district has nothing to do with the amount of drunkenness therein, and to look back on the past history of the public house and recognise that he has for many years been the friend and ally of the undesirable brewer. the good citizen's policy should be the provision of pure ale in wholesome surroundings, thereby freeing the working class from the tyranny of the public house. to the teetotallers who hinder such a policy i can only repeat charles kingsley's message: "and i solemnly warn those who try to prevent it that they are, with whatsoever good intentions, simply doing the devil's work." chapter xiv the two public houses 2. the workhouse. pauperism is the general leakage through every joint of the ship that is rotten. were all men doing their duty, or even seriously trying to do it, there would be no pauper. * * * * * pauperism is the poisonous dripping from all the sins, and putrid unveracities and god-forgetting greedinesses and devil-serving cants and jesuitisms, that exist among us. not one idle sham lounging about creation upon false pretences, upon means which he has not earned, upon theories which he does not practise, but yields his share of pauperism somewhere or other. thomas carlyle: "latter-day pamphlets," "the new downing street." the current cant of the day is that the alehouse leads to the workhouse. from an architectural and hygienic point of view they have much in common, and perhaps when one comes to spend one's last years amid the unloveliness and official squareness and coldness of the workhouse one will be able to look back with a sense of grateful pleasure to the more natural squalor of the alehouse. it is a zoological fact that the human pauper, escaped for the day from a workhouse, makes like a homing bird for the alehouse, wherefrom we may draw the conclusion that the public for whom our two public houses are provided by an intelligent state prefer the alehouse as the lesser abomination of the two. i often wonder if there is any nation in the world that possesses an appetite equal to that of our own people for royal commissions and reports. i admit that i have the craving strongly myself--not to sit upon commissions, for i am a working man and the amusement is one for bishops, law lords, philanthropists and the leisured classes--but i buy the reports when they come out and sometimes read them--or some of them--or some part of them--and marvel at the patience and energy and research that have gone to the making of them, and sigh over the pity of it and the heart-breaking inutility of the whole business. here is the report of the royal commission on the poor laws, 1909. the blue cover of my copy is already turning grey with old age, the pencil marks i made in the margin when i read it five years ago remind me of the splendid reforms that spread themselves out in its pages and made one feel that after all the world was a better affair than one had hitherto believed. this report is indeed literally a monument of industry. it sat from 1905 to 1909. there are over twelve hundred pages in the report itself, which you can buy for the trumpery sum of five and six. the evidence of it is contained in many volumes, and if your library is large enough and you can afford to pay the price of a large paper set, you would have reading enough for the rest of your natural life. and what has come of it all? practically nothing. it is not to be supposed that either the report or the evidence has ever been read and studied by our ministers and rulers. a few magazine and newspaper articles have been made of it, then perhaps a book or two are written on the subject, the origin of which you can trace to the report, and after that gradually the thing sinks by its own cumbrous weight into the dead limbo of forgotten state papers. yet if there was a problem called the reform of the poor law in 1905 worthy of the consideration of the good men and women who gave up a large slice of their lives to working at it surely in 1914 there is still such a problem, and some of it is at least as urgent as the questions over which our political pastors wrangle and fight with such splendid energy. to write an essay on the law and the poor in relation to the relief of distress would be to traverse the whole ground of this famous report, but for my own part i only want to call attention to an institution typical of all the faults and errors of the poor law--the workhouse. for if the rich have by their laws made a mess of the alehouse, what about the other public-house--the workhouse? when you have no money to enable you to take your ease at your inn the only other hostelry open for you and your wife and children is the poor house. if there is one subject that has a more confused melancholy legal history than another it is the story of the workhouse. no doubt much has been done and something is doing, but it is difficult to see the real metal of the reformer's work for the great heaps of poor law dirt that our forefathers have left for us to clear away. for years the great english general mixed workhouse has been looking for trouble. it has not a friend even in the local government board office, and it has been condemned by all right-minded men and women time out of mind as an abomination of desolation standing where it ought not. yet there it is. a blockhouse, invented, built, and governed by blockheads, or at least beings with wooden blocks instead of human hearts. it is mournful to read the poor law history of the last eighty years and to learn how little we have done to dry the tears of the widows and orphans who become, through folly, misfortune, or ill-regulated industry, the wards of the state. and to understand how such an institution came into our midst, it is necessary to look back a bit upon the natural history of our poor law. whatever our failings may be as practical statesmen capable of translating philanthropic theory into practical statutory right action, no one can deny we are a great people for ideals. and the ideal of our poor law has from earliest days been excellent. coke in his institutes tells us that it was ordained by kings before the conquest that the poor should be sustained by parsons, rectors, and parishioners, "so that no one should die from lack of sustenance." that was, and still is, the ideal. no citizen is to die from lack of sustenance, and yet surely since the conquest, and even recently in our own time, some perverse person has escaped the careful eyes of the parsons, rectors, and parishioners, and crept away to an obscure corner there to die of hunger against the ordinance of kings in that case made and provided. coke got this phrase from andrew horn, the author or editor of that excellent treatise "la somme appelle mirroir des justices," which he must have compiled somewhere before 1328, though it was first printed in 1624. horn's "mirror of justices," is not, i believe, regarded with great reverence by the learned as a law-book, but coke enjoyed it and quoted it with approval, and whether or not some of its phrases were ever sound law i dare not express an opinion, but i will vouch for the excellence of andrew's sympathies. in writing of the criminal law he tells us that "the poor man who to escape starvation takes victuals to sustain his life, or a garment to prevent death by cold, is not to be adjudged to death if he had no power to buy or to borrow, for such things are warranted by the law natural." i suppose it is doubtful if this was ever good common law to be acted upon in all criminal courts, but one admires old andrew for setting it down and is glad to learn that even in the beginning of the fourteenth century there were writers on law who were trying to mitigate the rigour of the law in favour of the poor. they may not have actually stated what the law exactly was, but they had shrewd ideas at the back of their minds as to what it ought to be. if they confused the two themselves at times, and this confused other learned ones in after times, maybe no one has been much the worse for it. and when horn laid down in his quaint dog french that "les povres fusent sustenuz par les persones rectours des eglises e par les paroisiens," i fear he was writing of what ought to be rather than what was the existing common law of the relief of the poor. i am not at all sure that leaving the matter in the hands of parsons and parishioners has not been the cause of most of the failure of the poor law. if you have studied parsons and parishioners as a class, you do not find them peculiarly desirous of providing sustenance for others. queen elizabeth--a very practical lady, much thought of by parsons and parishioners--was evidently of the opinion that you were asking too much for the poor when you said that they should have sustenance for nothing. she it was who enacted that in return for the ideal saxon sustenance, which was apparently to be freely given, the poor person was now to give his work. churchwardens and overseers, instead of giving free relief had power to set to work children whose parents could not maintain them, and make their parents work too if necessary. this was the beginning of the system that made you chargeable on the parish, and gave the parish a right to make you work off some of your chargeability. in the eighteenth century came the interesting and disastrous experiment of indiscriminate out-door relief. the farmer parishioner discovered he could get a cheaper labourer by making his fellow parishioners pay some of the wages in out-door relief. a pauper was a better tenant to have, since the rent was paid out of the poor rates, a bastard child was an asset in a household, and in 1821 overseers are known to have shared out the pauper labourers among themselves and their friends and paid for the labour wholly out of the poor-rate. the scandals that had arisen led to the reform of the poor law in 1834, which placed the administration in the hands of commissioners who were to see that the law was carried out, and by a natural swing of the pendulum they turned from an indiscriminate doling out of rates to favoured paupers to a system whereby the labourer was to find that the parish was his hardest taskmaster so as to induce him to keep away from the overseers and make parish relief his last and not his first resource. the ideal that the commissioners stood out for was that no relief whatever was to be given to able-bodied persons or to their families otherwise than in well-regulated workhouses. this was the beginning of the workhouse system which really made the workhouse a kind of prison for those who could not find work outside. a great deal has been done since then, and especially in recent years, to mitigate the lot of the poor. old age pensions, labour exchanges, medical insurance, unemployment insurance and the enlightened administration of some of the better boards of guardians have made great inroads on the negative inhumanity of the workhouse system. but unless it be in some of the more vigorous northern centres poor law work and poor law elections rouse but little enthusiasm. there are no doubt many men and women who enter into the service of the poor law from noble motives and do useful work, but the good they can do is very limited. the central authority seems to have no very settled ideals, different boards run different policies, some hanker after the flesh pots of labour cheapened by indiscriminate relief, others clamour for lower rates obtained by the inhumanity of not allowing anything but indoor relief. the guardians whose voices are raised only in the interests of the poor are scarcely heard by those who are clamouring for a lowering of the rates. one thing all reformers seem to be agreed upon, and that is that the general mixed workhouse with good, bad, and indifferent men, women, and children herded together within its four walls is an abomination of desolation. maybe it did its work in the past as part of the evolution of the poor law, dragging it out of a slough of corrupt and unwholesome administration, but a time has surely come when we can apply more scientific remedies to prevent the recurrence of such scandals, and there is no longer a necessity to sacrifice the lives and happiness of decent men, women, and children by the continuance of our workhouse system. for what is a general mixed workhouse? it is an institution that has been officially condemned since the commissioners of 1834 went their rounds and made their report. crowded together in the workhouses of that day they found a number of paupers of different type and character, neglected children under the care of any sort of pauper who would undertake the task, bastard children, prostitutes, blind persons, one or two idiots, and an occasional neglected lunatic. there was enough humanity among the commissioners of eighty years ago to see that what was urgently necessary was classification; the aged and the really impotent wanted care, peace, and comfort, the children wanted nursing, supervision, and education, hard working men and women in misfortune did not want to live in close proximity to the "work shy" and the "ins and outs." "each class," says the report, "should receive an appropriate treatment; the old might enjoy their indulgences without torment from the boisterous; the children be educated and the able-bodied subjected to such courses of labour and discipline as will repel the indolent and the vicious." this was reported of the workhouse in 1834, this is again reported of the workhouse in 1909; there seems every reason to believe that it will be once more reported of the workhouse in 2000. of course, many things are better to-day than they were eighty years ago. a different standard of sanitation and hygiene has arisen throughout the country and some of it has found is way into the workhouse. we have poor law schools and poor law infirmaries that were unthought of in those days and, as a whole, our buildings are clean and healthy; there is no ill-treatment in them as there was in the days of bumble; food, clothing and warmth are at least sufficient; and in communities where there is an exceptional board and a superior master and matron much is done to hinder the obvious evils of promiscuity. nevertheless, the evil overshadows the good, for it is the institution itself--the workhouse--that is as radically unwholesome and unfit to-day as it was in 1834. the evils of promiscuity cannot be exaggerated. in the larger workhouses male and female inmates dine together, work together in kitchens and laundries and in the open yards and corridors, with results that are obvious. in a fortuitous assembly of such people the lowest common denominator of morality is easily adopted as the standard. what a terrible place is a general mixed workhouse to which to send children or young people. one cannot read some of the passages in the report for which mrs. sidney webb and her colleagues were responsible without shuddering at our own guiltiness and folly as ratepayers for allowing these things to be done in our name. "no less distressing," they say, "has it been to discover a continuous intercourse which we think must be injurious between young and old, innocent and hardened. in the female dormitories and day rooms women of all ages and of the most varied characters and conditions necessarily associate together without any kind of restraint on their mutual intercourse. there are no separate bedrooms; there are not even separate cubicles. the young servant out of place, the prostitute recovering from disease, the feeble-minded woman of any age, the girl with her first baby, the unmarried mother coming in to be confined of her third or fourth bastard, the senile, the paralytic, the epileptic, the respectable deserted wife, the widow to whom out-door relief has been refused, are all herded indiscriminately together. we have found respectable old women annoyed by day and by night by the presence of noisy and dirty imbeciles; idiots who are physically offensive or mischievous, or so noisy as to create a disturbance by day or night with their howls, are often found in workhouses mixing with others, both in the sick wards and in the body of the house." this picture is foul and detestable enough, but it is perhaps in the treatment of children that the workhouse system causes the greatest unintentional cruelty. there are some 15,000 children actually living in general mixed workhouses. a large proportion of these have no separate sick ward for children, and no quarantine wards if there should be such a thing as an outbreak of measles or whooping cough. young children are to be found in bed, with minor ailments, next to women of bad character under treatment for contagious disease, whilst other women in the same ward are in advanced stages of cancer and senile decay. children come in daily contact with all the inmates, even the imbeciles and feeble minded are to be found at the same dining table with them. in this huge state nursery the nurses are almost universally pauper inmates, many of them more or less mentally defective. a medical inspector's report in 1897, stated that in no less than "sixty four workhouses imbeciles or weak-minded women are entrusted with the care of infants." one witness states that she has "frequently seen a classed imbecile in charge of a baby." in the great palatial workhouses of london and other large towns the commissioners found that "the infants in the nursery seldom or never got into the open air." they found the nursery frequently on the third or fourth story of a gigantic block, often without balconies, whence the only means of access, even to the workhouse yard, was a lengthy flight of stone steps down which it was impossible to wheel a baby carriage of any kind. there was no staff of nurses adequate to carrying fifty or sixty infants out for airing. "in some of these workhouses," they write, "it was frankly admitted that the babies never left their own quarters, and the stench that we have described, during the whole period of their residence in the workhouse nursery." seventy years have passed since it was written, and yet the "cry of the children" has as much meaning for us as it had for our grandfathers. the young lambs are bleating in the meadows, the young birds are sleeping in the nest, the young fawns are playing with the shadows, the young flowers are blowing toward the west- but the young, young children, o my brothers, they are weeping bitterly! they are weeping in the playtime of the others, in the country of the free. and i am far from suggesting that all this evil is the result of any personal inhumanity of boards of guardians, masters or matrons or of their inspectors and governors in higher places. it is a matter in which each individual citizen must bear his share of blame for he knows it to exist, and he knows that he can have it altered if he cares to put his hand deep enough into his pocket, or if he will forgo some of the political luxuries dear to his party heart and give up the expenditure on them to the betterment of little children. other european countries have managed to classify their poor. in france the medical patients go to hospitals, the infirm aged poor have special "hospices," and the blind and the idiots are separated from the little children, each having their appropriate establishments. of course we take a great and to some extent justifiable pride in our local government institutions, but as the world becomes more complex and difficult, it is beginning to be seen that backward and less intelligent districts do not get the full value out of legislation and rates that a progressive and vigorous district obtains. it is one thing to pass an act of parliament and another thing to get a local elective body to administer it intelligently. if we could level up the worst administration of guardians to the best, a great deal would be done, but there is no manner of doubt that the state ought to impose a time limit on the general mixed workhouse and to enact that after such a date no board of guardians shall be allowed to house men, women, and children in the unclassified barracks in use to-day. if any body of guardians do not feel capable of carrying out such a decree the state must take their job over and do it for them. for eighty years the law makers have been told by their own experts what their workhouses were, and why they ought to be abolished and the fact that the greatest sufferers from the iniquity are poor children who cannot voice their complaints, and exist in dumb ignorance of the wrongs that are done to them, does not make our position as the wrong-doers any less deserving of damnation. chapter xv remedies of to-day ring out the feud of rich and poor; ring in redress to all mankind. tennyson: "in memoriam." when absalom cried out in a loud voice, "oh, that i were made judge in the land that every man which hath any suit or cause might come unto me, and i would do him justice!" he was, as we should say nowadays, playing to the gallery. yet, sincerely uttered, what a noble wish it was. let it stand as an expression of the still unfulfilled ideal of judicial duty and public service which we owe to-day to the poor of this country. every man has not as yet a judicial system that does justice to every man. and i fear that absalom's fine saying was only an election cry in his campaign against his father, recalling to the voters perhaps david's inconsistency in the theory and practice of justice in the matter of uriah and his wife. in those days the king, the lawgiver, and the judge were but one person, so that to be made judge was to be made lawgiver and king, and you not only administered the laws but made them as you went along. absalom was only an office seeker, but his election address contained a noble sentiment. nowadays the judges are merely servants of the law, like policemen and bailiffs and the hangman. nor does the king make the laws, nor are there in theory any professional lawgivers. the people--or at least so many of the people as get on the register and trouble to vote--make their own laws, or are supposed to do so. at least they have the power of choosing their representatives and servants to make what laws they want. if, therefore, a sufficient number of men in the street greatly desired amendment of the law in this or that direction, i have no doubt it would come about. but very few of the problems that trouble me come before the eyes of the average man in the course of his daily life, and he is scarcely to be blamed for not trying to mend that which he has not observed is broken and worn out. one man may know at first hand the story of a home ruined by reckless credit and imprisonment for debt, another may know a cruel case of lives blighted by our unequal divorce laws, a third may have seen the sad spectacle of an injured workman sinking from honest independence to neurasthenic malingering by reason of the poisonous litigious atmosphere of the workmen's compensation act. i can never understand why men and women hunger after the tedious, unreal, drab scandals portrayed in a repertory theatre when they could take a hand at unravelling the real problem plays of life in the courts and alleys of the city they live in. real misery and wretchedness is at least as pathetic as the sham article, and if you do your theatre-going in a real police court you may learn to become a better citizen. not that i advise all men and women to spend their leisure in these squalid surroundings. i recognise that the man in the street cannot at first hand study all these problems, and that is why i have set down something of the disabilities of the poor under the law, in the hope that my political pastors and masters may take an interest in these domestic reforms. there are many, i know, who think that a judge, like a good child, should in matters of this kind be seen and not heard. but for my part i am not of that opinion, for if a judicial person knows that the machine he is working is out of date and consuming unnecessary fuel, blacking out the moral ether with needless foul smoke, and if, moreover, he thinks he knows how much of this can be put right at small expense, should he not mention the matter not only to his foreman and the frock coat brigade in the office--who are the folk who supply the bad coal--but to the owner of the machine who has to pay for it and live with it--the man in the street? now there is a great deal that might be done to make the law less harsh to the poor without any very elaborate legislation, and certainly without any of those absurd inquiries and commissions which are the stones the latter-day lawgivers throw at the poor when they ask for the bread of justice. i like to read of lord brougham, as far back as 1830, shivering to atoms the house of fraud and iniquity known as the court of chancery. i like to picture him pointing his long, lean, skinny fingers at his adversaries, and to see the abuses he cursed falling dead at his feet. could he have had his way, the very county court system which we have to-day would have sprung into being within a few months of his taking his seat on the woolsack, and he would have instituted courts of conciliation for the poor, to hinder them from wasting their earnings in useless costs. but the petty men who walked under his huge legs and peeped about were too many for colossus. and, to be fair to the fools of his time, the great giant was not himself a persuasive and tactful personality. sane, wise, and far-reaching as were the legal reforms he propounded, too many, alas, still remain for future generations to tackle. pull down your hansard debates of to-day, read them if you can, and say honestly in how many pages you find political refreshment for the man in the street. the small reforms of existing laws that weigh hardly on the poor are worth at least as much of parliamentary time as many of the full dress debates about ministers' investments and tariff reform and the various trivial absurdities that excite the little minds of tadpole and taper, but have no relation whatever to the works and days of the power citizens of the country. and if i were called upon to draw up a new magna charta for the poor--and i could draft all the reforms i want in a very small compass--i should put at the head of the parchment--"let it be enacted that no british subject may be imprisoned for a civil debt." i do not believe that if members of parliament would vote on this subject as i know many of them would really wish to vote that there would be a dozen voters in the "no" lobby, and i am firmly convinced, though here i must own my parliamentary friends are in disagreement with me, that they would not injure their hold on their constituencies. if there were any machinery in our unbusiness-like parliament for dealing with social subjects on a non-party basis, imprisonment for debt would have been abolished long ago. the proposal is, however, a proposal to ameliorate the bottom dog, and the human bottom dog is poorly represented in the great inquest of the nation. the foreign bird whose plumes adorn the matinee hats of our dearly beloveds, the street cur who might find a sphere of utility in the scientist's laboratory, the ancient cabhorse who crosses the channel to promote an entente cordiale by nourishing the foreigners--all these have friends, eloquent and vigorous for the lives and liberties of their especial pets; but the poor man who goes to gaol because he cannot pay the tally-man has few friends. there is no getting away from the fact that political influences are against the abolition of imprisonment for debt. i remember many years ago--more than twenty, i fear--a learned county court judge laughing at the eagerness with which i threw myself into a newspaper campaign against imprisonment for debt. "i, too," he said, "used to think i should live to see it abolished, and you think that merely stating unanswerable arguments against it is likely to lead to results. well, i used to think that way about it at one time, but it is not a matter of argument at all; it is all a case of vested interests and nervous politicians. some day another lord brougham will come along and sweep the thing away as he swept away the old chancery courts and many another legal abuse, but i shall never see it done, and unless you are another methuselah you will never see it done." and then with a laugh of mock despair he added: logic and sermons never convince, the damp of the night drives deeper into my soul. i am beginning to think that my old friend spoke with the tongue of prophecy, and he was certainly right about the vested interests. the three parties in english politics have a curious attachment to imprisonment for debt. they do not allude to it much on the platform or in the house, but it is there at the back of their minds all the same. the conservative opposition to the proposal is the more straightforward and natural. here is a system which enables the well-to-do to collect money from the poor, it encourages credit giving, and is thought to promote trading, it causes no inconvenience to the wealthier classes, it exists and always has existed, and it works well. why should it be altered, especially as there is no great demand for change, and change is in itself an evil thing? let us leave well alone. the liberal, off the platform, is much in agreement with the proposition of abolition, his difficulties are purely practical difficulties. he finds among his best supporters, drapers, grocers, tally-men and shop-keepers, most of them nonconformists and keen radicals, and all of them credit givers, carrying on their businesses under the sanction, more or less direct, of imprisonment for debt. these traders are not only voters and supporters, but they are centres of political influence. i remember in the south of england, thirty years ago, being told of a grocer in a small village who was a man whose support it was necessary for the candidate to obtain. i went along to see him and he agreed to support my friend. he was worth over two hundred votes, all of them in his debt and liable to be summoned at any moment for more than they could pay. in politics it is absurd to expect individuals to kick against the pricks, and i do not know of any politician who, deeply as he may believe in the justice and expediency of abolishing imprisonment for debt, has ever cared to take up the matter and place it prominently before his constituents in the hope of being able to convince them that it would make for the greatest happiness of the greatest number. the general belief seems to be that the influence of the shopkeeping and travelling trading classes would be used against such a quixote, and he would receive a severe warning to stick to the ordinary hack lines of political talk and not risk his seat tilting at windmills. the attitude of the labour party is even more peculiar. outwardly and individually they, of course, being more thoughtful and experienced about the wants of the poor, agree very heartily that imprisonment for debt is a class institution which should be abolished. but they certainly show no great enthusiasm in taking a hand at working for its abolition. this is partly due, no doubt, to the fact that they are business men and not theorists and have other and nearer work to do. they would, i make no doubt, support any measure of abolition, but it is essentially a legal reform and they would wait for some legal authority to initiate it. there is too, undoubtedly, at the back of the labour mind the idea that imprisonment for debt may be a very present help in time of trouble. in the select committee of 1893 mr. william johnson, a miner's agent, gave evidence in favour of imprisonment for debt; he asserted that nine-tenths of his men did not desire its abolition and were in favour of its continuance. later on he pointed out that in case of sickness or in the case of non-employment, "and probably in the case of strikes," credit given under the sanction of imprisonment for debt would be useful. unemployment and sickness are now largely dealt with by insurance, and from a public point of view the idea that strikes should be financed by the small tradesmen and, in case of their bankruptcy, ultimately by the wholesale trade, is not an attractive one. the reformer must always expect to find selfish class interests up against him, but it seems to me that the desires of those who want to finance strikes on credit and the rights of those who at present are selling shoddy on credit at extravagant prices ought not to weigh against the general public welfare. if, as i venture to think, the arguments against the last step in the abolition of imprisonment for debt are as valid as they were on former occasions, and if, as must be admitted, no evils have followed on the partial abolitions of imprisonment already made in 1837 and 1869, then the mere fact that the public is apathetic on the subject and that members of parliament are apprehensive of interested opposition is not of itself sufficient excuse for those who are in authority in legal matters refusing to complete the reform by abolishing imprisonment for debt for the poor as it has already been abolished for the rich. of course, the mere abolition of imprisonment for debt would not to my mind be a sufficient protection of the poor unless side by side of it were enacted a homestead law greatly enlarging the existing exemptions from execution of the tools and chattels of a working man. the idea is that the home furniture necessary to the lives of the human beings forming the home should be incapable of being seized for debt. make the limit twenty pounds or whatever sum you please but clearly enact that sufficient chattels to furnish a reasonable house are exempt from execution. in america and canada these homestead laws exist and work well. it occurs to our cousins across the pond that it is a better thing to keep a home together than to sell it up for an old song to pay official fees and costs and something on account to the foolish creditor. the returns from a poor auction of a workman's household furniture are miserable reading. the landlord by distress or the tally-man by execution may get a few shillings for himself and pay away a few more shillings to bailiffs and others, but the cost of it to the poor is cruel. tables and chairs and perhaps a sideboard that represent months of savings and long hours of labour are in a moment of misfortune snatched away from their proud possessor and his home is a ruin. the homestead laws in canada, though not the same in every state, go much further than any laws we possess to prevent the breaking up of a home. in manitoba, for instance, executions against lands are abolished, though land can be bound by a judgment by registering a certificate, and the household furniture and effects, not exceeding 500 dollars in value, and all the necessary and ordinary clothing of the debtor and his family are exempt from execution. the actual residence or house of a citizen to the extent of 1,500 dollars is also exempt. imagine what an incentive it would be to the purchase of house property and furniture if a man were to know that his cottage to the value of three hundred pounds, and its contents to the extent of one hundred pounds, would always be protected from bailiff and sheriff. what a check, too, such legislation would be on the reckless way in which credit is given. one exception to this rule seems to me very fair. there is no exemption of anything the purchase price of which was the subject of the judgment proceeded upon. thus a man cannot buy a sideboard, refuse to pay the price of it, and claim exemption of the sideboard from execution by the furniture dealer who sold it, though he could claim exemption of the sideboard against a money lender who had obtained a judgment against him, and wanted to recover his debt by sweeping his home away. here in england people are driven to shifts and evasions by means of bills of sale, goods put in the wife's name, and a number of other semi-dishonest devices to protect their homes. the sight of a home broken up and the furniture that has cost so many years of saving slaughtered at a third-rate auction for little more than the costs and fees of the bailiffs is no great incentive to a working man to spend his savings on good, home-made chattels. cheap foreign shoddy on the hire system is the order of to-day, and as a mere matter of encouragement of the better class home trade in furniture, carpets, drapery and household goods generally, we might consider the advisability of taking a leaf out of the statute book of manitoba. that debt should never be allowed to utterly destroy a family and a home seems to me such a clear and sane idea that it has always been a puzzle to me to try and understand the point of view of those who cannot see the matter in the same light. i know it is a degrading confession for anyone with even the pretence of a judicial mind to have to make but it is best to be honest about it. i rather gather i am a little obsessed, or abnormal, or feeble-minded, or senile perhaps nowadays about anything that touches home or home life. the home to me is the great asset of the nation. i do not want to see the home superseded by state barracks or common hostels or district boarding schools. on the contrary, i think individual homes are good for the development of citizens. for this reason i would protect the home from ruin by an extravagant husband or an extravagant wife in the interests of the children, who are the next generation of citizens, and whose welfare is, therefore, a debenture of the state. nobody would think of distraining on a pheasant's nest, or breaking up the home of a couple of partridges, or imprisoning the birds at breeding time in separate coops and cutting down their food merely because one of the birds had run up a bill for too many mangel wurzels or the other had run into debt for some fine feathers beyond her means. pheasants and partridges are too valuable to be so treated. their nests are protected from any distress or execution by poachers, and their bodies are protected from arrest by watchful gamekeepers under strict laws. i want to insure under my reformed laws that the human nest should be protected in the same way, and that judges should not only be allowed, but ordered, to take care that the home is not devastated by human misfortune or even by improvidence. we want game laws for the poor. in future our legislators must treat them as game birds--as indeed most of them are--and not as vermin to be devoured, they and their children, by the owls and kites of the underworld in which they live. and the second clause of my magna charta would be of almost simpler dimensions than the first. it would run: "let it be enacted that the county courts have jurisdiction in divorce." this would at once place rich and poor on an equality that is not yet even aimed at. i should not complicate this matter with the overdue reforms proposed by the divorce commission, much as i should like to see those enacted. they are matters of general interest that have waited for so many years that there is not much hardship in holding them back further, but the institution of a new tribunal of divorce is of vital and immediate importance to the poor. the act would be a practically unopposed act of one clause. it would only touch one vested interest, the london lawyers of the divorce court, and it would greatly please their brethren throughout the country. all details of costs and machinery could be left to rule committees, as is the common practice in other and more important matters that have come to the county courts, such as admiralty and equity jurisdiction, and a hundred other really difficult and complicated matters. and then would follow a lot of simple but important reforms that really only need the stroke of the official pen that is never made until the man in the street rises in his wrath and knocks the official funny-bone on the official desk and wakens him up to the fact that it is officially time to do some official act. for, of course, police court fines must be cut down and time given to pay them, and police court costs must be paid by the community, and bankruptcies must be made available to the poor, and the treasury must cease to rob the poorest bankrupts of £13,000 a year, and the limit of such bankruptcies must be raised to £250, so that poor little business men and their creditors may get what there is, rather than it should all go in costs and fees and payments to lawyers and accountants, who must give up sparrow shooting and hunt for bigger game. and, above all, we must remember to engross in big black text on our parchment what joseph chamberlain said about his workmen's compensation act, that it is to be worked without lawyers, or at least, that it is to be made one of the judge's duties to see employer and workman first and endeavour to bring them together before he issues his fiat that the affair is "fit for litigation." this little programme surprises me by its moderation. how any society of business men could palaver about it in any palaverment for more than a week passes my comprehension. i commend my new magna charta to a party in want of a programme. if they carried it in the first week of their ministry and then adjourned for seven years to see how the world went on without them, they would be the most sensible and popular government since the days of alfred the great. chapter xvi remedies of to-morrow happy he whose inward ear angel comfortings can hear, o'er the rabble's laughter; and, while hatred's faggots burn, glimpses through the smoke discern of the good hereafter. knowing this, that never yet share of truth was vainly set in the world's wide fallow; after hands shall sow the seed, after hands from hill and mead reap the harvests yellow. thus, with somewhat of the seer, must the moral pioneer from the future borrow; clothe the waste with dreams of grain, and, on midnight's sky of rain, paint the golden morrow! john greenleaf whittier: "barclay of ury." i remember in my youth being told in the words of marcus aurelius: "be satisfied with your business and learn to love what you were bred to." at the time i may have resented the advice, but i have lived long enough to see the wisdom of it. personally, at that period, i should have liked to have been an engine driver or at least a railway guard; later on in years i had thoughts about carpentering; and in course of time water-colour painting, etching, playing the fiddle, and even golf seemed possible of attainment. but when you really learn that these higher ranks of life are closed to you by your own natural limitations and find out that your business in life is to be a drab official in an inferior court, then marcus aurelius is indeed grateful and comforting. one can, after many years of it, learn to love even the county court. you have much the same outlook and experience of life and human nature as the old bus driver. every day brings you new passengers who accompany you for a few minutes on the journey of life, and you get to know many old ones and have a friendly crack with them over their domestic troubles. moreover, at moments your daily job brings you in near touch with the joys and sorrows and trials and daily efforts of poor people, and once in a way perhaps you can be of use, which to a child and to a grown-up who has any of the child left in him is always a jolly thing. when you have really got quite accustomed to enjoying your work the natural garrulity which your friends lovingly attribute to senile decay stimulates you to make them partners in your joy. the narrow circle in which you spend your daily life has become your only world. you find yourself quoting with approval "with aged men is wisdom, and in length of days understanding," and you begin to believe you are the only person who really does understand. childlike, you find dragons in your path that you want to slay, pure and beautiful souls are oppressed, and you fancy that you can release them from bondage; there are giants of injustice and persecution in the land whose castles you mean to turn into peoples' palaces. then you sit down to write your fairy tales again--but no longer for the children nowadays, since they are all grown up. these fairy tales are for journalists, philanthropists and politicians who make fairy tales and live on fairy tales; and believe me, there are no more essential fairy tales than stories about legal reform. only to the writer are they real, and to one or two choice child spirits who never grow old and still believe in a world where everyone is going to live happily ever afterwards. the way in which master ogre, the law, swallows up the poor is quite like a real fairy tale, and it would have even a happier likeness to the fiction of the nursery if we could tell of a jack the giant killer cutting off the wicked monster's head and rescuing his victims. i am under no delusions that this little volume is going to do any particular good in any particular hurry. i know by historical study that the way of reform lies through official mazes of docket and précis and pigeon holes, that legislative decisions are hatched out in some bureaucratic incubator that the eye of common man has never seen. i reverence the mystery that surrounds these high matters. it is really good for us that we should know so little of the reason why things are no better than they are. and then how good our rulers are to us in the matter of royal commissions and blue books! at our own expense we may really have as many of these as we ask for. i wish i could get folk to understand what a lot of sterling entertainment there is in blue books. all the earnest ones, all the clever ones, all the cranky ones of this world set down their views and opinions on any subject at any distance from that subject, and wrangle and argue and cross-examine each other, and then the good government prints it for us all verbatim and sells it to us very very cheap. practically, i dislike the shape of a blue book, and æsthetically they do not match my library carpet when they are lying around, which is a disadvantage, but i must own that if i were banished to a desert island i would rather have my blue books than much of what is called classical literature. the evidence is the best reading--and when one comes to the final report i generally find the minority report to be the thing one is looking for, as it is usually the minority who want to do something. but in some subjects, divorce for instance, things are moving so hurriedly during these last few hundred years that actually there is a majority in favour of legislation and reform. not that this makes the slightest difference as to any actual reform being done. the feeling of security that nothing is ever going to come of it makes it a safe and reasonable thing to print the most advanced views at the expense of the state. the physical weight and size of these volumes have been carefully considered and the whole format cunningly designed to repel readers. nothing ever comes of blue books, and i do not suppose anything ever will come of them. when i turn over their dreary pages i find myself humming kipling's chorus- and it all goes into the laundry, but it never comes out in the wash, 'ow we're sugared about by the old men ('eavy sterned amateur old men!) that 'amper an' 'inder an' scold men for fear o' stellenbosh. dickens had the same impatience of the heavy sterned brigade and invented his immortal circumlocution office, and doubtless genius is entitled to deride these substantial state institutions. personally, i find them very english and valuable. the more energetic of us may take our pleasure in giving friendly shoves to these heavy sterned christians, but their inert services to the community are not to be undervalued. but for this immovable official wall who knows what reforms, unnecessary and ill-advised, might have been carried through. if lord brougham could have had his way much that i am writing about to-day would long ago have happened. the heavy sterned ones sitting on the lid prevented the opening of the pandora box with its promises of affliction for the human race in the shape of legal reform. they have left these things over until to-day and brought me amusement for idle vacation hours. at least, let me be thankful to them and sing their praises. i remember when i was planning out these chapters being the victim of a most terrible nightmare. a newspaper with a king's speech in it was thrust before me and every one of the reforms i had already written about was promised to be passed within the session. i remember smiling in my dream, knowing what parliamentary promises were, and then as i was gliding down the strand a silent phantom newsboy handed me an evening paper. there it was in black and white, every bill was passed--there was nothing left to write about. i awoke with a cry. it was a terrible shock, and it was some moments of time before i could realise that such a thing was absolutely impossible. and, of course, when you think of the large number of things that you want done and recollect that nothing ever is done that a man really cares about in his own lifetime it was absurd of me, even in a dream, to believe that anything was coming between me and my little book. indeed, i have hopes that for many years to come it may be regarded as a popular primer about legal reform for future generations who wish to while away idle hours in the luxury of vain imagination. i should like to interest the man in the street about legal reform and to see him at work remedying some of the more obvious of the existing abuses i have referred to, but i am under no delusion that such reforms would bring about the millennium. it is good to do the pressing work in the vineyards on the slopes of the mountain, but it is permissible for poor human man to have his day off now and then to climb on the hilltops and gaze out on the limitless ocean of the future and indulge in wild surmises of the after-world. the remedies of to-day are really tiresome parochial affairs compared to the remedies of to-morrow and hardly seem worth troubling about when one considers that even if you passed them all this year in a century or two your new statutes would be out of date and only fit for the scrap heap. bacon tells us that time is the greatest of all innovators, but he does not explain to us why, unlike all human innovators, time is in no hurry about it. i have quite distinct beliefs, which to me are certainties, as to how time will reconcile the law and the poor in the centuries to come, when our social absurdities and wrong-doing will not even be remembered to be laughed at. the law will never be a really great influence for good until it is utterly conquered, put in its proper place in the world and based on the principle of love. in other words, when the law of love receives the royal assent no other law will be necessary. nineteen hundred years ago a new principle was introduced into the world. it was the principle of unselfishness, and its apostles were labour men. in relation to man's personal life it has made some progress, but in practical social politics its business value is not yet fully recognised. still, a beginning has been made, and that old snail, time, is doubtless satisfied with the pace of things. let us remember hopefully that two thousand years ago unselfishness as a basic principle of life, doing to others as you would be done by, promoting peace and good will instead of strife and ill will--these ideas as business propositions were as unknown then as railways, telegraphs, motor cars, and aeroplanes. a vision of to-day would have been a wild fairy tale to marcus aurelius, a vision of two thousand years hence would be incomprehensible to us. one does not mean, of course, that unselfishness had never before been preached as an ideal, but a society based on the common quality of all its members placing the interests of others above their own was a new notion, and the novelty of it has not yet worn off. nevertheless, love and unselfishness have achieved sufficient lip-service already to make me hopeful of their future, and i foresee a time when they will be the foundation of the laws of the world, and the preamble to every statute will be "blessed are the peacemakers." some day when the chinese send over a mission to heathen england, missionaries will go about the country destroying all the boards on which are written the wicked words "trespassers will be prosecuted." but i hope we may not have to wait for a foreign mission to teach us our duty. this phrase, typical of the law of to-day and eloquent of the claims of the rich to fence the poor off the face of the earth, must utterly disappear when the new spirit of the law is made manifest. we have no sense of humour. on sunday we intone to slow music our desire to forgive our enemy his trespasses; on monday we go down to our solicitor to issue a writ against him for the trespass we have failed to forgive. the old notice threatening prosecution is really already out of date. it ought, of course, to read, "trespassers will be forgiven." for my part if i met with such a notice, i should hesitate before i walked across the owner's land; whereas to-day, when i am threatened with prosecution, my bristles go up, i scent a right of way, and as like as not proceed in my trespassing out of pure cussedness. there are a lot of other folk besides myself who are built that way. i know a little girl of five whose chief glory in life is to walk "on the private," as she calls it, when the park-keeper is not looking. it is that constant "don't!" and "you mustn't" that rouses the rebel in us. the less forbidding there is, the easier the path of obedience. i hold no brief for trespassers. i know it is naughty to trespass. but in the present state of my evolution there is so much of the original monkey in me that when that "monkey is up," to use a phrase dear to cardinal newman, i go astray. so do many of my best friends. i have the same belief in the evolution of the moral world and its onward movement that i have in the revolution of the physical world and its rotary movement. for this reason i expect my great-grandchildren of two thousand years hence to be much better behaved than i am. you can see it coming along in your own grandchildren unless your sight is getting dim. and i am quite clear that my own manners are an improvement on my great grandfathers, who lived in caves, and, when they had disputes, made it clubs, and battered each other strenuously until it was proved which had the thickest skull, when he of the toughest cranium was adjudged to be in the right. the vigorous legal procedure of the cave men sounds laughable enough to us nowadays, but does anyone think that two thousand years hence superior unborn persons will not be smiling superciliously over the history books that record the doings of our judges, our hired counsellors, our sheriffs, our gaolers, and our hangman? it was only in the recent reign of good queen bess that the ordeal of battle was given up. the abolition of that old-world lawsuit must have been painful to the conservative mind. and there was a lot to say for it. from a sporting point of view, what could be better than to go down to tothill fields in westminster, as you might have done in 1571, to see a. b. battering c. d. to the intent that whichever knocked the stuffing out of the other gained the verdict? if you look at it from a healthy, open-air point of view, maybe it was better for everybody than sitting in a stuffy court and listening to two bigwigs splitting hairs to the resultant financial ruin of one of their clients. one reason, no doubt, that trials by battle were abolished was that they gave the poor at least as good a chance as the rich. i remember a good story--it is an old one, but still quite good--of a noble lord and landowner who net a collier trespassing in the neighbourhood of wigan. "my good man," said my lord, "do you know you are trespassing?" "well, wot of it?" "you have no right to be walking across my land." "i'm like to be walking across somebody's land, i've noan o' me own." "well, you must not come across mine." "how do i know it is yours, and who gave it you?" "well, this land," replied the noble lord, "belonged to my father and grandfather and his father for many generations." "but how did thi' first grandfeyther get it?" persisted the collier. "well, as a matter of fact, it was granted by the king for services rendered. i may say," my lord added proudly, "that my ancestors fought for this land." "did they, now?" said the collier, "then tak off thi' coat an' i'll feight thee for a bit." one can see from this anecdote that it would never do to return to ordeal by battle. and though individual fighting by violence to assert rights is out of date and not permissible, yet in the affairs of the collection of human beings known as nations the horrible waste of armaments and the menace of war are living evidence of the ultimate tribunal to which we still appeal. no one really believes that force and violence are sane remedies for the evils of the world, and the whole history of mankind shows a gradual decline in the practice and use of them. in each succeeding generation our children will be nearer the truth than we are, and further on the journey towards the end when the rule of love and unselfishness will be the only law of the universe, and will enforce itself without judges, juries, or policemen. and lest anyone should say that all this is the mere vague raving of prophecy, let me set down a short, practical catalogue of what i expect the remedies of to-morrow to bring about in, say, two thousand years. in the first place, the disabilities of the poor that i have written about in these pages will all have been abolished and forgotten. crime will be regarded as a disease, and it will be as inhuman to treat the criminal with harshness as it is to-day to torture lunatics after the methods of a hundred years ago. every citizen will have a right to sufficient food, clothing, housing, and entertainment in exchange for reasonable hours of work. the spirit of humanity will so greatly have been improved that it will be very little necessary to extort proper conditions for the lives of citizens or to protect the weak from exploitation by the strong. litigation and war will be out of date and replaced by conciliation and arbitration. in a word, the reign of love and unselfishness will have commenced. we may not even see my beautiful world from afar, but this need not dismay us, for we know it is there, and we know that every effort we make to serve the cause of the poor helps to clear the path through the desert along which the coming armies of victory will march in triumph. the cause of the poor has always been the greatest cause in the world, and the generation that has at length understood it, and fought for it and won it, will find itself standing at the open gates of the promised land. index abinger, lord chief baron, his judgment in _priestley_ v. _fowler_, 77, 78, 95, 96 ademantus, 254 administration orders in bankruptcy, 119-124 alehouse, the, 252-270 "alton locke," slums described in, 238 american judiciary and working classes, 93, 94, 95; and workmen's compensation, 103 appeals, cost of, 175 artisans dwelling act, 1875, 241 asquith, right hon. herbert henry, on workmen's compensation, 87 _attorney-general_ v. _the edison telephone co._, 83 bacon, lord chancellor, 305 bail, unnecessary refusal of, 226; statistics of this, 228, 229 balfour, right hon. arthur james, on intemperance, 255, 256 bankruptcy, 106-124; failures due to extravagance, 115-117; not open to the poor, 118; administration orders, 120; exorbitant treasury fees, 122-124 bell, alexander graham, 82 belloc, hilaire, 254 bentham, jeremy, on legal evidence, 192 bias in judges, 96-103 bills of sale acts, 168 black act, 1722, 218 blasphemy laws, 199, 200 blue books, 301, 302 bradlaugh, charles, 199 bridewell, the, 9-10, 213 bright, john, 99 brougham, lord, on imprisonment for debt, 48, 49; on the evidence amendment act, 193; on chancery reform, 287, 288 butler, samuel, 211 cadaval, duke de, arrested on mesne process, 46 _capias ad satisfaciendum_, 37, 39 carlyle, thomas, on history, 21; on language, 108, 110; on fools, 153; on land question, 250 cattle maiming, 216-219 chamberlain, right hon. joseph, on workmen's compensation, 87-90; on administration orders, 119, 120; is housing work in birmingham, 241 chancery court, and lord brougham, 287 children, treatment of, in workhouses, 280, 282 closing time, regulations for rich and poor, 263, 264 clough, arthur hugh, 169 cobbett, sir william, 186 coke, sir edward, chief justice, his description of _peine forte et dure_, 11, 201; on early poor laws, 274, 275 collier, sir robert, on imprisonment for debt, 55, 56 "compleat constable," the, 4-7 conciliation in trade disputes, 110 conciliation, preliminary of, in france, 187 corporal punishment, advisability of, discussed, 209-212 costs in police court, abolition desirabie, 222 cottenham, earl of, his insolvency bill, 1837, 45-47 county court procedure, expense of, 184 court of criminal appeal act, 1907, 194, 197, 198 crabbe, on lawyers, 183 cranmer, thomas, archbishop of canterbury, on divorce, 125, 126, 127 crime and punishment, 189-212 criminal appeal, court of, 189 criminal evidence act, 1898, 194-196 criminal law amendment act, 210 cruelty to animals bill of 1811, 219 davey, lord, on workmen's compensation, 92 deane, mr. justice bargrave, on divorce, 137 debt, imprisonment for, old testament view of, 22; new testament view of, 24; greek law of, 27; roman law of, 31; in papal rome, 34; in time of henry iii., 36-39; in eighteenth century, 41, 43; in "pickwick," 45; mesne process, 45; debates on, in 1837, 46; in 1869, 50-57; evils of, 59-68; arguments against abolition, 69-71; none in germany, 71; nor in france, 72; wastefulness of system, 72; encourages improvidence, 157-160; in police courts, 220, 222; political views on abolition of, 288-293 debtors act, 1869, 41, 49-57, 158 debtors' prisons, 41-47 dendy, mr. registrar, on divorce in county court, 146 denman, lord, speech on imprisonment for debt, 46 dickens, charles, on imprisonment for debt, 45; on the living wage, 108; on the evidence of prisoners, 194; on slums, 238; on inns and innkeepers, 257-259 d'israeli, benjamin, slums described in "sybil," 239-242 distress, law of, 233 divorce, 125-151; in time of edward vi., 125-128; act of 1857, 131; hard cases of poor, 133-141; necessity of using county court, 144-146, 297 dogberry, abolition of discussed, 223, 224 edalji, 217 edward vi., 126 edward vii., 126 eliot, george, 174 elisha, and imprisonment for debt, 22, 23 elizabeth, queen, her poor law, 276 employers liability act, 1880, 86 erewhon, treatment of crime in, 211 erskine, lord, and cruelty to animals, 219 eviction, 234 evidence, prisoners right to give, 193; criminal evidence act, 1898, 194; of crown not available to prisoner, 207-209 exekestides, 27 false pretences, 202, 203 fielding, as a magistrate, 213 _fieri facias_, 39 fines in police courts, unfair incidence of, 221, 222; time for payment of, 224; statistics of, 225; abolition of, 297 france, no imprisonment for debt, 72; divorce law, 143, 147; preliminary of conciliation in, 187; poor law, 283 fuller, on burning of heretics, 200 geographical distribution of crime, 216 germany, no imprisonment for working men debtors, 71; divorce in, 147 gilbert, lord chief baron, 37, 39 goldsmith, oliver, 13, 14 gordon, cosmo, archbishop of york, on divorce, 128 gordon, mr. justice, of australian labour court, 110 governor of gaol, charity to poor debtors, 65 grand jury, 181 grantham, hon. mr. justice, 101; on poor prisoners defence, 196 gray, professor john chipman, of harvard, 80; on judge-made law, 81 haldane, viscount, 66, 215 hale, sir matthew, lord chief justice, 100 halsbury, earl of, on workmen's compensation, 92 hard labour for unconvicted prisoners, 227, 228 headlam, john, an old-fashioned dogberry, 227, 228, 229 herschell, lord, on prisoners giving evidence, 195 hogarth, 10, 15 homestead laws of america and canada, 293, 294, 295 hood, tom, 108 horn, andrew, his "mirror of justices," 275 housing question, 236-251; royal commission, 1884, 242; select committee, 1902, 244 identification of prisoners, present methods criticised, 230, 231 imprisonment for debt. _see_ debt. innkeeper, independence of, 258 jeremiah, and the living wage, 108, 113 jessel, sir george, on imprisonment for debt, 50 johnson, dr., 4; on the poor in england, 13, 14; on public executions, 15, 16; on imprisonment for debt, 70; on the formation of laws, 70 johnson, william, miners' agent, his views on imprisonment for debt, 292 judge-made law, 79-85 judgment summonses, statistics of, 60, 63 judicial irrelevancy, 180 judson, frederick n., author of "the judiciary and the people," 94 justice of peace, utility of lay justices, 231 kelvin, lord, 82 kingsley, charles, 108; on slums, 238; on teetotallers, 264-266, 270 kipling, rudyard, 303 landlord and tenant, 233-251 land transfer system, assists fraud, 183 leniency to well to do in criminal courts, example of, 205, 206 licensing, class regulation of, 253; section 4 of act of 1904, 256; effect of reducing number of licences, 261; extension of hours for rich, 263; prohibition of amusements, 267 living wage, 108, 109, 110 _lysons_ v. _andrew knowles_, 175 mcmahon, m.p., on imprisonment for debt, 55 malicious injury to property, 217, 218 manitoba, homestead laws of, 294, 295 marcus aurelius, 299, 306 married women's property act, undesirable use of, 161-170 matthew, and imprisonment for debt, 24, 25 maule, mr. justice, on divorce, 129 maxwell, rev. dr., 13, 14 mayence, public beer drinking at, 262 medical officer of health, status of, 248 menander, on marriage, 163 mesne process, arrest on, 45; abolished, 49 mesnil, m. henri, on divorce, 143 moryson, fynes, 8, 11, 34, 35 newman, cardinal, 307 ordeal of battle, 308, 309 overbury, sir thomas, 11 overcrowding, 245; census statistics of, 246 parry, serjeant, 99 _peine forte et dure_, 12 pepys, samuel, 4 pickersgill, m.p., on prisoner giving evidence, 196 pickwick, and imprisonment for debt, 45, 47 piers plowman, on debt, 75; on law and poor, 172, 173; on lawyers, 188 police courts, abolition of fines, 297 poor law, 271-284; royal commission, report of, 272; in time of elizabeth, 276; in eighteenth century, 276; in 1834, 277; general mixed workhouses, 278-284 poor man's lawyer, necessity of, 184-187 poor prisoners defence act, 194-197 _priestley_ v. _fowler_, 76-79 procedure and the poor, 172-188 public houses, 252-270. _and see_ licensing. railway conciliation boards, and their working, 111, 112 raleigh, sir walter, 1, 3 _regina_ v. _thomas hall_, 129 registrars of county courts and private practice, 72, 73 "reformatio legum ecclesasticarum, the," 125 ridley, sir matthew white, on workmen's compensation, 87 rivers pollution acts, 248 roe, gilbert, author of "our judicial oligarchy," 86, 94 rogues and vagabonds, 4-7 ruskin, john, 108 sabbatarianism, evils of, 215 salford quarter sessions in 1824, 17 salisbury, earl of, 244, 245 schuster, dr., on german system of debt collecting, 71 scold, common, trial and punishment of, 235 scots divorce, 126 scott, sir william, 15 _seisachtheia, the_, 29 selden, john, on marriage contract, 150 shop lifting by ladies, 204 sims, george r., his "how the poor live," 242, 243 _sittlichkeit_, 66 slums, legislation against, 236 smith, judge lumley, on divorce costs, 148, 149 smith, rev. sidney, on prisoners' right to counsel, 190, 191; on prisoners' inability to give evidence, 192 smith, sir a. l., master of the rolls, on workmen's compensation, 89 smollett, 9, 42 snowden, philip, m.p., and the living wage, 109; on strikes, 111 socrates, on thirst, 255 solicitors, speculative, 175 solon, and imprisonment for debt, 27-31 starkie, sir thomas, 17 stephen, mr. justice, decision in telephone case, 82 stipendiary magistrates, want of in country, 223; necessary in interests of justice, 231 sumner, lord, 180, 181 swift, on lawyers, 181, 182 taylor, jeremy, his prayer for debtors, 75 teetotallers, persecution of licence holders by, 259; their ideals, 260; charles kingsley's views of, 264-266, 270 telephone, legal position of, 82, 83 tennant, mrs., report on divorce, 136 thackeray, on prisoner giving evidence, 193 torrens act, 1868, 241 treasury fees on administration orders, exorbitancy of, 121-124, 298 twelve tables, the, 32 tyburn, 7, 15, 16 vinogradoff, professor, 84 warrington, harry, imprisonment for debt, 45, 46 webb, mrs. sidney, her report on poor law, 280 weston, richard, trial of, 11, 12 whipping, punishment of, 6-9, 209-212 witchcraft, 100 workhouses, 271-284. _and see_ poor law. workmen's compensation, 76-105; history of the law, of, 76-84; employers liability, 86; in court of appeal, 90-93; in america, 94, 103; 162, 286; and conciliation, 298 wyrley, cattle maiming at, 219 york, archbishop of, on divorce, 136, 137 bradbury, agnew & co. ld., printers, london and tonbridge. crown 8vo. illustrated. 350 pp. price 6_s._ presentation edition, white vellum, 6_s._ net. letters from dorothy osborne to sir william temple. _pall mall gazette._--"we trust the new and beautiful issue of an ever-fragrant book will give it yet more readers and lovers than it has had before." butter-scotia, or a cheap trip to fairyland. 180 pages. with a map of butter-scotia, many full-page plates and illustrations in the text. bound in specially designed cloth cover. 6_s._ second edition, 96 pages, cloth. 3_s._ 6_d._ katawampus: its treatment and cure. _the world._--"one of the very best books of the season." _saturday review._--"the book is one of rare drollery, and the verses and pictures are capital of their kind." _pall mall gazette._--"a truly delightful little book...." with beautifully coloured plates by walter crane. price 6_s._ the story of don quixote retold. crown 8vo. 193 pp. price 1_s._ 6_d._ lamb's tales from shakespeare. illustrated by a. rusden. crown 4to. price 3_s._ 6_d._ net. pater's book of rhymes. christmas stories for children of all ages. the first book of krab. 132 pages, with many full-page plates and illustrations in the text. bound in specially designed cloth cover, 3_s._ 6_d._ royal 8vo. price 1_s._ katawampus kanticles. music by sir j. f. bridge, mus.doc., organist of westminster abbey. words by his honour judge e. a. parry. illustrated cover, representing kapellmeister krabb, by archie maccregor. may be obtained from sherratt & hughes, 33, soho sq., london w., 34, cross st., manchester, or all booksellers. _works by the same author._ 2nd impression. large post 8vo. 7_s._ 6_d._ net. judgments in vacation. some press opinions. _athenæum._--"they deal among other topics with the letters of dorothy osborne, the disadvantage of education, the craftsmanship of the drama and the nice problems of the kitchen; and they all possess a lightness of touch and sense of companionableness which makes them agreeable reading." g. k. chesterton in _illustrated london news_.--"i cannot refrain from imploring my readers to get hold of judge parry's 'judgments in vacation,' it is extraordinarily good." _morning leader._--"literature and law jostle each other with a delightful air of indifference." _the standard._--"it is a rollicking book." _daily graphic._--"a wide range of knowledge and experience and a faculty of literary skill unite to make this collection of his papers exceedingly readable." _manchester guardian._--"it is all very jolly and irresponsible." _eye-witness._--"but it is not only a witty, sparkling book, it is a human document in which the tragedy of the poor, their never-ending debts, their hopeless yet patient insolvency is sketched with a profound insight, a living sympathy." _westminster gazette._--"but perhaps we have said enough to show that for an hour or two by the fire the book is all good company." _liverpool daily post and mercury._--"the essays and papers in his honour's book are in every way worthy of the bright humour, vivacity and literary skill we are wont to associate with the name of the admirable crichton of the county court bench." _the spectator._--"judge parry deals with various subjects, social, literary and other, and has something worth hearing to say about all of them." _daily telegraph._--"whether his themes are grave or gay, the mood in which he treats them lively or severe, judge parry is invariably interesting, and his volume should be widely read." second impression in the press. large post 8vo. 7_s._ 6_d._ _net._ what the judge saw: being 25 years in manchester, by one who has done it. _pall mall gazette._--"a rollicking story. a book full of frolic and fun. this is the best book of legal recollections, we believe, since the 'leaves' of montagu williams, and we know no higher praise." _daily chronicle._--"the book is diverting and well strewn with personalities. 'if your lordship pleases,' give us another volume like this. it bespeaks a human man with a good heart as well as a clever head." the scarlet herring, and other stories. illustrated by athelstan rusden. 253 pp. bound in specially designed cloth cover. price 6_s._ london: smith, elder & co. 15, waterloo place, s.w. transcriber's notes: passages in italics are indicated by _italics_. the following misprints have been corrected: " ast" interpreted as "past" (page 18) "suceed" corrected to "succeed" (page 111) "gods" corrected to "goods" (page 138) "absolutley" corrected to "absolutely" (page 184) "paliament" corrected to "parliament" (page 248) other than the corrections listed above, inconsistencies in spelling and hyphenation have been retained from the original. https://archive.org/details/earlywesterntrav30thwa early western travels 1748-1846 volume xxx early western travels 1748-1846 a series of annotated reprints of some of the best and rarest contemporary volumes of travel, descriptive of the aborigines and social and economic conditions in the middle and far west, during the period of early american settlement edited with notes, introductions, index, etc., by reuben gold thwaites, ll. d. editor of "the jesuit relations and allied documents," "original journals of the lewis and clark expedition," "hennepin's new discovery," etc. volume xxx palmer's journal of travels over the rocky mountains, 1845-1846 [illustration: decoration] cleveland, ohio the arthur h. clark company 1906 copyright 1906, by the arthur h. clark company all rights reserved the lakeside press r. r. donnelley & sons company chicago contents of volume xxx preface. _the editor_ 9 journal of travels over the rocky mountains, to the mouth of the columbia river; made during the years 1845 and 1846: containing minute descriptions of the valleys of the willamette, umpqua, and clamet; a general description of oregon territory; its inhabitants, climate, soil, productions, etc., etc.; a list of necessary outfits for emigrants; and a table of distances from camp to camp on the route. also; a letter from the rev. h. h. spalding, resident missionary, for the last ten years, among the nez percé tribe of indians, on the kooskooskee river; the organic laws of oregon territory; tables of about 300 words of the chinook jargon, and about 200 words of the nez percé language; a description of mount hood; incidents of travel, &c., &c. _joel palmer._ copyright notice 24 author's dedication 25 publishers' advertisement 27 text: journal, april 16, 1845-july 23, 1846 29 necessary outfits for emigrants traveling to oregon 257 words used in the chinook jargon 264 words used in the nez percé language 271 table of distances from independence, missouri; and st. joseph, to oregon city, in oregon territory 277 appendix: letter of the rev. h. h. spalding to joel palmer, oregon territory, april 7, 1846 283 organic laws of oregon (with amendments). 299 illustration to volume xxx facsimile of title-page, palmer's journal of travels. 23 preface to volume xxx in the wake of the pathfinders, fur-traders, indian scouts, missionaries, scientific visitors, and foreign adventurers came the ultimate figure among early western travellers, the american pioneer settler, the fore-runner of the forces of occupation and civilization. this concluding volume in our series is, therefore, fitly devoted to the record of an actual home-seeker, and founder of new western communities. the significant feature of american history has been the transplanting of bodies of colonists from one frontier to a newer frontier. in respect to the oregon country, our interest therein is enhanced not only by the great distance and the abundant perils of the way, but also by the political result in securing the territory to the united states, and the growth of a prosperous commonwealth in the far northwest corner of our broad domain. in several previous volumes of our series we have witnessed the beginnings of oregon civilization. two of our travellers, franchère and ross, have graphically detailed the astoria episode, giving us, not without some literary skill, the skeleton of facts which irving's masterful pen clothed with living flesh and healthful color; in townsend's pages we found an enduring picture of the régime of the all-powerful hudson's bay company; de smet, with faithful, indeed loving, touches has portrayed the vanishing aborigines, whose sad story has yet fully to be told--eventually, when the last vestige of their race has gone, we shall come to recognize the tale as the sorriest chapter in our annals; farnham shrewdly narrates the sharp transition to american occupancy; but palmer tells us of the triumphant progress of the conquering pioneer, and in his pages the destiny of oregon as an american state is clearly foreshadowed. "fifty-four forty, or fight," the belligerent slogan with regard to oregon, adopted in the presidential campaign of 1844, was after all not so much a notice to the british government that the united states considered the oregon country her own, beyond recall, as an appeal to the pioneers of the west to secure this vast inheritance by actual occupation. as such it proved a trumpet call to thousands of vigorous american farmers, most of them already possessed of comfortable homes in the growing communities of the middle west. "i have an uncle," declared one of the pioneers to dr. john mcloughlin, hudson's bay factor on the pacific coast, "who is rich enough to buy out your company and all this territory." "indeed!" replied the doctor, courteously, "who is he?" "uncle sam," gayly responded the emigrant, with huge enjoyment in his well-worn witticism. it was at the supposed behest of this same "uncle sam" that farms were sold, wagons and oxen purchased, outfits prepared, and long caravans of permanent settlers slowly and painfully crossed the vast plains and rugged mountains lying between the comfortable settlements of the "old northwest"--the "middle west" of our day--and the new land of promise in the far northwest of the pacific slope. the emigration of 1845 exceeded all that had gone before. that of 1843, eight hundred strong, had startled the indians, and surprised the staid officials of the hudson's bay company. that of 1844 had occupied the fertile valleys from puget sound on the north to calapooia on the south. that of 1845 determined that the territory should be the home of americans; it doubled the population already on the ground, reinforced the compact form of government, and laid broad and deep the foundations of new american commonwealths. our author, joel palmer, a shrewd, genial farmer from indiana, was a leader among these emigrants of 1845. born across the canada line in 1810, he nevertheless was of new york parentage, and american to the core. in early life his family removed to indiana, where joel founded a home at laurel, in northwest franklin county. by the suffrages of his neighbors palmer was sent to the state legislature in 1844, but the following year determined to make a tour to oregon for personal observation, before deciding to remove his family thither and cast his future lot with its pioneer settlers. arrived on the missouri frontier, he found that the usual wagon train had gone in advance. however, he overtook the great body of the emigrants in time to assist in the organization of the caravan on big soldier's creek, in kansas. gathered from all parts of the middle west, with no attempt at organization nor any pre-arrangement whatsoever, the emigrants, who had not yet forgotten the frontier traditions of their fathers, proved to be a homogeneous body of about three thousand alert, capable travellers, provided in general with necessities and even comforts for the hardships of the long journey; indeed, after the manner of their aryan forbears in the great westerly migrations of the past, they were accompanied by herds of cattle, to form the basis of agricultural life in the new land. each of the several hundred wagons was a travelling house, provided with tents, beds, and cooking utensils; clothing and food were also carried, sufficient not only for the journey out, but for subsistence through the first year, always the crucial stage of agricultural pioneering. the draught cattle were largely oxen, but many of the men rode horses, and others drove them with their cows and bulls. aside from the duties of the nightly encampment and morning "catch-up," life upon the migration progressed much as in settled communities. there were instances of courtship, marriage, illness, and death, and not infrequently births, among the migrating families. these, together with the ever-shifting panorama of sky, plains, and mountains, made the incidents of the long and tedious journey. occasionally there appeared upon the horizon an indian gazing silently at these invaders of his tribal domain, and at times he came even to the wagon wheels to beg or trade; the mere numbers of the travellers gave him abundant caution not to attempt hostilities. the wagons were so numerous as to render a compact caravan troublesome to manage and disagreeable to travel with. the great cavalcade soon broke into smaller groups, over one of which, composed of thirty wagons, palmer was chosen captain. at fort laramie they rested, and feasted the indians, who, in wonderment and not unnatural consternation, swarmed about them in the guise of beggars. palmer afterwards harangued the aboriginal visitors, telling them frankly that their entertainers were no traders, they "were going to plough and plant the ground," that their relatives were coming behind them, and these he hoped the red men would treat kindly and allow free passage--a thinly veiled suggestion that the white army of occupation had come to stay and must not be interfered with by the native population, or vengeance would follow. from fort laramie the invaders, for from the standpoint of the indians such of course were our western pioneers, followed the usual trail to the newly-established supply depot at fort bridger. thence they went by way of soda springs to fort hall, where was found awaiting them a delegation from california, seeking, with but slight success, to persuade a portion of the emigrants in that direction. following lewis river on its long southern bend, the travellers at last reached fort boise, where provisions could be purchased from hudson's bay officials, and a final breathing-spell be taken before attempting the most difficult part of the journey--the passage of the blue and cascade ranges. a considerable company of the emigrants, accompanied by the pilot, stephen h. meek, left the main party near fort hall, to force a new route to the willamette without following columbia river. the essay was, however, disastrous. meek became bewildered, and was obliged to secrete himself to escape the revenge of the exasperated travellers, who reached the dalles of the columbia in an exhausted condition, having lost many of their number through hunger and physical hardships. palmer himself continued with the main caravan on the customary route through the grande ronde, down the umatilla and the columbia, arriving at the dalles by the closing days of september. here a new difficulty faced the weary pioneers--there was no wagon road beyond the dalles; boats to transport the intending colonists were few, and had been pre-empted by the early arrivals, while provisions at the dalles would soon be exhausted. in this situation palmer determined to join samuel k. barlow and his company in an attempt to cross the cascades south of mount hood, and lead the way overland to the willamette valley. this proved an arduous task, calling for all the skill and fortitude of experienced pathfinders. in its course, palmer ascended mount hood, which he describes as "a sight more nobly grand" than any he had ever looked upon. at last the valley of the clackamas was reached, and oregon city, the little capital of the new territory, was attained, where "we were so filled with gratitude that we had reached the settlements of the white man, and with admiration at the appearance of the large sheet of water rolling over the falls, that we stopped, and in this moment of happiness recounted our toils, in thought, with more rapidity than tongue can express or pen write." the distance that he had travelled from independence, missouri, our author estimates at 1,960 miles. passing the winter of 1845-46 in oregon, palmer made a careful examination of its resources, and in his book describes the country in much detail. the ensuing spring, after a journey to the lapwai mission for horses, he started on the return route, arriving at his home in laurel, indiana, upon the twenty-third of july. palmer's experience, although trying, had been sufficiently satisfactory to justify his intention to make a permanent home in oregon. in 1847 he took his family thither, the emigration of that year being sometimes known as "palmer's train," he having been elected captain of the entire caravan, also in recognition of his great utility to the expedition. the new caravan had but just arrived in oregon--now belonging definitely to the united states--when the whitman massacre aroused the colonists to punish the indian participants in order to ensure their own safety. in the organization of the militia force, joel palmer was chosen quartermaster and commissary general, whence the title of general, by which he was subsequently known. he was also made one of two commissioners to attempt to treat with the recalcitrant tribes, and win to neutrality as many as possible. accompanied by dr. robert newell, a former mountain man, and perrin whitman, the murdered man's nephew, as interpreter, palmer risked his life in the land of the hostiles, and succeeded in alienating many nez percés and wallawalla from the guilty cayuse. thus was laid the foundation of that full knowledge of aboriginal character that availed him in his service as united states superintendent of indians for oregon. to this difficult position general palmer was appointed by president pierce in 1853, just on the eve of an outbreak in southern oregon, and his term of office coincided with the period of indian wars. after pacifying the southern tribes, palmer inaugurated the reservation system, removing the remnants of the tribes of the willamette valley and their southward neighbors to a large tract in polk and yamhill counties, known as grande ronde reservation. this ended the indian difficulties in that quarter until the modoc war, twenty years later. palmer found the tribesmen east of the mountains more difficult to subdue. scarcely had he and isaac t. stevens, governor of washington territory, made a series of treaties (1855) with the nez percés, cayuse, wallawalla, and neighboring tribes, when the yakima war began, and embroiled both territories until 1858. during these difficulties the military authorities complained that commissioner palmer was too lenient with former hostiles, and pinned too much faith to their promises. consequently the oregon superintendency was merged with that of washington (1857), and james w. nesmith appointed to the combined office. retiring to his home in dayton, yamhill county, which town he had laid out in 1850, general palmer was soon called upon to serve in the state legislature, being speaker of the house of representatives (1862-63), and state senator (1864-66). during the latter incumbency he declined being a candidate for united states senator, because of his belief that a person already holding a public office of emolument should not during his term be elected to another. in 1870 he was republican candidate for governor of the state, but was defeated by a majority of less than seven hundred votes. from this time forward he lived quietly at dayton, and there passed away upon the ninth of june, 1881. his excellent portrait given in lyman's _history of oregon_ (iii, p. 398) is that of an old man; but the face is still strong and kindly, with a high and broad forehead, and gentle yet piercing eyes. one of palmer's fellow pioneers said of him, "he was a man of ardent temperament, strong friendships, and full of hope and confidence in his fellow men." another calls his greatest characteristic his honesty and integrity. widely known and respected in the entire north-west, his services in the up-building of the new community were of large import. not the least of these services was, in our judgment, the publication of his _journal of travels over the rocky mountains_, herein reprinted, which was compiled during the winter of 1846-47, and planned as a guide for intending emigrants. the author hoped to have it in readiness for the train of 1847, but the publishers were dilatory and he only received about a dozen copies before starting. the book proved useful enough, however, to require two later editions, one in 1851, another in 1852, and was much used by emigrants of the sixth decade of the past century. palmer makes no pretence of literary finish. he gives us a simple narrative of each day's happenings during his own first journey in 1845, taking especial care to indicate the route, each night's camping places, and all possible cut-offs, springs, grassy oases, and whatever else might conduce to the well-being of the emigrant and his beasts. the great care taken by the author, with this very practical end in view, results in his volume being the most complete description of the oregon trail that we now possess. later, his account of passing around mount hood and the initial survey of the barlow road, produces a marked effect through its simplicity of narrative. his incidents have a quaint individuality, as for instance the reproof from the cayuse chief for the impiety of card-playing. no better description of the willamette valley can be found than in these pages, and our author's records of the climate, early prices in oregon, and the necessities of an emigrant's outfit, complete a graphic picture of pioneering days. in the annotation of the present volume, we have had valuable suggestions and some material help from principal william i. marshall of chicago, professor edmond s. meany of the university of washington, mr. george h. himes of portland, dr. joseph schafer of the university of oregon, and mr. edward huggins, a veteran hudson's bay company official at fort nisqually. with this volume our series of narratives ends, save for the general index reserved for volume xxxi. the western travels which began in tentative excursions into the indian country around pittsburg and eastern ohio in 1748, have carried us to the coast of the pacific. the continent has been spanned. not without some exhibitions of wanton cruelty on the part of the whites have the aborigines been pushed from their fertile seats and driven to the mountain wall. the american frontier has steadily retreated--at first from the alleghanies to the middle west, thence across the mississippi, and now at the close of our series it is ascending the missouri and has sent vanguards to the farthest northwest. the ruts of caravan routes have been deeply sunk into the plains and deserts, and wheel marks are visible through the length of several mountain passes. the greater part of the continental interior has been threaded and mapped. the era of railroad building and the engineer is at hand. the long journey to the western ocean has been ridded of much of its peril, and is less a question of mighty endurance than confronted the pathfinders. when francis parkman, the historian of new france, going out upon the first stages of the oregon trail in 1847--the year following the date of the present volume--saw emigrant wagons fitted with rocking chairs and cooking stoves, he foresaw the advent of the commonplace upon the plains, and the end of the romance of early western travels. throughout the entire task of preparing for the press this series of reprints, the editor has had the assistance of louise phelps kellogg, ph. d., a member of his staff in the wisconsin historical library. others have also rendered editorial aid, duly acknowledged in the several volumes as occasion arose; but from beginning to end, particularly in the matter of annotation, dr. kellogg has been his principal research colleague, and he takes great pleasure in asking for her a generous share of whatever credit may accrue from the undertaking. annie amelia nunns, a. b., also of his library staff, has rendered most valuable expert aid, chiefly in proofreading and indexing. the editor cannot close his last word to the reader without gratefully calling attention, as well, to the admirable mechanical and artistic dress with which his friends the publishers have generously clothed the series, and to bear witness to their kindly suggestions, active assistance, and unwearied patience, during the several years of preparation and publication. r. g. t. madison, wis., august, 1906. palmer's journal of travels over the rocky mountains, 1845-1846 reprint of original edition: cincinnati, 1847 journal of travels over the rocky mountains, to the mouth of the columbia river; made during the years 1845 and 1846: containing minute descriptions of the valleys of the willamette, umpqua, and clamet; a general description of oregon territory; its inhabitants, climate, soil, productions, etc., etc.; a list of necessary outfits for emigrants; and a table of distances from camp to camp on the route. also; a letter from the rev. h. h. spalding, resident missionary, for the last ten years, among the nez percé tribe of indians, on the kooskooskee river; the organic laws of oregon territory, tables of about 300 words of the chinook jargon, and about 200 words of the nez percé language; a description of mount hood; incidents of travel, &c., &c. by joel palmer. cincinnati: j. a. & u. p. james, walnut street, between fourth and fifth. 1847. entered, according to act of congress, in the year 1847, by j. a. & u. p. james, in the clerk's office of the district court of ohio. to the pioneers of the west, and their descendants, the bone and muscle of the community, who improve and enrich the country in peace, and protect and defend it in war, this work is respectfully dedicated. publishers' advertisement in offering to the public a new work on oregon, the publishers feel confident that they are performing an acceptable service to all who are desirous of obtaining full and correct information of that extensive and interesting region. the facts contained in this journal of travels over the rocky mountains were obtained, by the author, from personal inspection and observation; or derived from intelligent persons, some of whom had resided in the country for ten years previously. it contains, as is believed, much very valuable information never before published, respecting the oregon territory. mr. palmer's statements and descriptions are direct and clear, and may be relied on for their accuracy. he observed with the eye of an intelligent farmer the hills and valleys; timbered land and prairies, soil, grass, mill sites, &c.; all of which he has particularly described. to the man about to emigrate to oregon just the kind of information needed is given. he is informed what is the best season for setting out; the kinds and quantities of necessary outfits; where they may be purchased to the best advantage, so as to save money, time and useless hauling of provisions, and to promote comfort and prevent suffering on the long journey. {vi} a particular account of oregon city is given; the number of houses and inhabitants; the number and kinds of mechanical trades carried on; and the prices current during the author's stay there. the objects of natural curiosity on the route--the solitary tower--the chimney rock--independence rock--the hot springs--the devil's gate--the south pass--the soda springs, and many others--are noticed. the work is enlivened with anecdotes of mountaineer life--shooting buffalo--hunting bear--taking fish, &c. mr. palmer made the ascent of one of the highest peaks of mount hood, almost alone, and with a very scanty supply of provisions. an extraordinary achievement, when the circumstances under which it was accomplished are taken into consideration. _cincinnati, january, 1847._ journal of travels over the rocky mountains having concluded, from the best information i was able to obtain, that the oregon territory offers great inducements to emigrants, i determined to visit it with a view of satisfying myself in regard to it, and of ascertaining by personal observation whether its advantages were sufficient to warrant me in the effort to make it my future home.[1] i started, accordingly, on the morning of the 16th of april, 1845, in company with mr. spencer buckley. we expected to be joined by several young men from rushville, ind., but they all abandoned the enterprise, and gave us no other encouragement than their good wishes for our success and safety. i took leave of my family, friends and home, with a truly melancholy heart. i had long looked forward and suffered in imagination the pain of this anticipated separation; but i had not tasted of its _realities_, and none but those who have parted with a family under similar circumstances, can form any just conception of the depth and power of the emotions which pervaded my breast on that occasion. the undertaking before me was arduous. it _might_ and doubtless _would_ be attended with various and unknown difficulties, privations and dangers. a doubt arose in my mind, whether the advantages, which were expected to result from the trip, would be likely to compensate for the time and expense necessary to accomplish it: but i believed that i was right, hoped for the best, and pressed onward. we were favoured with a pleasant day and good roads, which tended in some degree to dissipate the gloom which {10} had weighed down my spirits upon leaving _home_. our day's travel ended at blue river, on the banks of which we encamped for the first time on the long and tedious journey before us.[2] _april 17._ arrived at indianapolis, in the afternoon, where we expected to meet a number of persons, who had expressed a determination to join the party.[3] but here too, as in the case of our rushville friends, we were doomed to meet disappointment;--not one was found willing to join us in our expedition. after having had our horses well shod, (we traveled in an ordinary wagon drawn by two horses,) and having laid in a supply of medicines, we put up for the night. _april 18._ we this day had a sample of what might be called the _mishaps_ of travelers--an encounter with a wild animal, the first which we met in our journey. one of our horses becoming lame, we were obliged to trade him away, and received in exchange one so wild, that it required the greatest vigilance and exertion on our part to prevent him from running away with our whole concern. we reached mount meridian after a day's journey of about thirty-four miles, during which we succeeded admirably in taming our wild horse.[4] _april 24._ reached the mississippi, opposite to st. louis, having traveled daily, and made the best of our time after leaving mount meridian. _april 25._ we made a few purchases this morning, consisting chiefly of indian trinkets, tobacco, powder, lead, &c. and, soon after, resumed our journey upon the road to st. charles, the seat of justice for st. charles county.[5] we reached this place at the close of the day, and encamped upon the banks of the missouri, which appears to be about as wide as the ohio at cincinnati, in a fair stage of water; the current is quite strong; the water very thick and muddy. here, we overtook a company of germans, from st. louis, who had started for california. the company consisted of four men, two women and three children; they traveled with a wagon drawn by six mules, and a cart drawn by two,--a very poor means of conveyance for such a long and tedious route. we traveled the same road until we reached fort hall. _april 26._ at nine o'clock a. m. we crossed the river and traveled twenty-eight miles. the surface of the country is somewhat undulating; the soil, though poorly watered, appears to be good, and produces respectable crops. _april 27._ we traveled thirty-one miles. the day was rainy {11} and unpleasant. the country through which we passed is a rolling prairie: some parts of it are very well timbered. on account of the scarcity of springs, the people rely generally upon their supplies of _rain_ water. there we were joined by a clever backwoodsman, by the name of dodson, who was making the best of his lonely journey to join an emigrating party at independence; upon his consenting to bear an equal share in our expenses and outfit at that place, we took him in, and traveled together. _april 28._ we started this morning at sunrise, and traveled to lute creek, a distance of six and a half miles.[6] this stream was so much swollen, in consequence of the recent rains, that we were unable to ford it, and were forced to encamp upon its banks, and remain all day. while there, we were greatly annoyed by the _wood-tick_--an insect resembling, in size and in other respects, the _sheep-tick_. these insects, with which the bushes and even the ground seemed to be covered, fastened themselves with such tenacity upon our flesh, that when picking them off in the morning, the head would remain sticking fast to the skin, causing in most cases a painful wound. _april 29._ we traveled about twenty-six miles, through a gently undulating country: the principal crops consisted of corn, oats, tobacco and some wheat. we passed through williamsburgh and fulton. the latter town is the seat of justice for callaway county.[7] _april 30._ we made an advance of about thirty miles through a well timbered country, and passed through columbia, the seat of justice for boone county. the town is pleasant and surrounded by a fertile and attractive country. we made our halt and encamped for the night, five miles westward of this town. _may 1._ we started this morning at the usual hour, and after a ride of eight miles, reached and re-crossed the missouri, at rocheport, and continued our journey until night, passing through booneville, the county seat of cooper--a rich and fertile county, making in all a ride of twenty-six miles.[8] _may 2._ passed through the town of marshall, the seat of justice for saline county. the town stands upon an elevated prairie, upon which may be found a few groves of shrubby timber. the country upon this [the west] side appeared to be much better supplied with water, than that upon the east side.[9] _may 3._ we traveled about twenty-eight miles, over a thinly-settled {12} prairie country. the crops, cultivated generally by negroes, consisted of hemp, corn, oats, and a little wheat and tobacco. the soil appeared to be good, but the scarcity of timber will prove a serious barrier to a complete settlement of the country. _may 4._ we traveled twenty-three miles this day, through a better improved and pleasanter part of missouri, than any we have yet seen. the crops appeared well; there were fine orchards under successful cultivation. the country is well timbered, and there appears nothing to hinder it from becoming the seat of a dense and thriving population. _may 6._ reached independence at nine o'clock a.m.;[10] and as the main body of emigrants had left a few days previous, we hastily laid in our supplies, and at five o'clock p. m., pushed forward about two miles, and encamped upon the banks of a small creek, in company with four wagons, bound for oregon. from one of the wagons they drew forth a large jug of whiskey, and before bed-time all the men were completely intoxicated. in the crowd was a mountaineer, who gave us a few lessons in the first chapter of a life among the mountains. at midnight, when all were quiet, i wrapped myself in my blanket, laid down under an oak tree, and began to realize that i was on my journey to oregon. _may 7._ after traveling about fifteen miles we halted and procured an extra set of horse-shoes, and a few additional wagon bows. the main body of the emigrants is twenty-five miles in advance of us: we have now passed out of missouri, and are traveling in an indian country--most of which is a rolling prairie.[11] _may 8._ we started at seven o'clock, a. m. and traveled about twenty miles. towards evening we overtook an emigrating company, consisting of thirty-eight wagons, with about one thousand head of loose cattle, all under the direction of a mr. brown. we passed this company, expecting to overtake a company of about one hundred wagons, which were but a few miles before us. the night, however, became so dark that we were compelled to encamp upon the prairie. soon after we had staked our horses, a herd of wild indian horses came galloping furiously by us, which so alarmed our horses and mules, that they broke loose and ran away after them. dodson and myself pursued, but were distanced, and after running two or three miles, abandoned the chase as hopeless, and attempted to return to the camp. owing to the darkness, we {13} were unable to find our camp, until the night had far advanced; and when we finally reached it, it required all my logic, supported by the positive testimony of buckley, to convince dodson that we were actually there. _may 9._ at daylight, dodson and i resumed the search for our lost stock. after a fatiguing tramp of several hours, i came upon _one_ of the mules, which being hobbled, had been unable to keep with the herd. dodson was unsuccessful, and returned to camp before me; during our absence, however, the herd had strolled near the camp, and buckley had succeeded in taking our two _horses_. having taken some refreshments, we started again in search of the lost animals. as i was returning to camp, hopeless, weary and hungry, i saw at a distance dodson and buckley mounted upon our two horses, and giving chase to the herd of indian horses, among which were our two mules. the scene was wild, romantic and exciting. the race was untrammeled by any of those arbitrary and useless rules with which the "knights of the turf" encumber their races, and was pursued on both sides, for a nobler purpose; it was to decide between the rights of _property_ on the one side, and the rights of _liberty_ on the other. the contest was for a long time doubtful; but the herd finally succeeded in winning the race, and poor buckley and dodson were compelled to yield; the former having lost his reputation as a sportsman, and the latter--what grieved him more,--his _team_; and _both_ had ruined the character of their coursers in suffering them to be beaten. sad and dispirited, they returned to camp, where, after a short consultation, it was unanimously resolved,--inasmuch as there was no _other_ alternative,--to suffer the mules freely and forever to enjoy the enlarged liberty which they had so nobly won. the day was nearly spent, but we harnessed up our team and traveled four miles, to the crossing of a creek, where we encamped for the night. _may 10._ re-considered our resolution of last evening, and spent the morning looking for the mules--re-adopted the _same_ resolution, for the _same_ reason, and then resumed our journey. we advanced about eighteen miles through a very fertile and well watered country, and possessing, along the banks of the water courses, a supply of bur and white oak, ash, elm, and black walnut timber, amply sufficient for all practical purposes. in our travel, we crossed a stream called the walkarusha, extending back from which, about two miles in width, {14} we discovered a fine bottom covered with heavy bur oak and black walnut timber. after passing through this bottom, the trail strikes into a level and beautiful prairie, and crossing it--a distance of four miles--rises gradually to the ridge between the walkarusha and the caw, or kansas river.[12] we encamped upon the ridge, in full view of the two streams, which at this place are from six to eight miles apart. the banks of both streams, as far as can be seen, are lined, either way, with excellent timber: the country rises gradually from the streams, for fifteen or twenty miles, with alternate forests and prairies, presenting to the eye a truly splendid scene. i noticed here almost a countless number of _mounds_, in different directions--some covered with timber, others with long grass. the caw or kansas indians dwell along these streams. through this part of the route there are _two_ trails, uniting near our camp; the difference in the distance is small.[13] _may 11._ we traveled about twenty miles, and passed a company of twenty-eight wagons. the road runs upon the ridge, which after a distance of ten or twelve miles becomes a broad rolling prairie. as night came on, we came up with the company of one hundred wagons which we were in pursuit of: they were encamped upon the banks of a small brook, four miles from the kansas, into which it empties. we joined this company. at dark the guard was stationed, who becoming tired of their monotonous round of duty, amused themselves by shooting several dogs, and by so doing excited no small tumult in the company, which after some exertion on the part of the more orderly portion was quelled, and tranquility restored. _may 12._ we traveled about four miles to caw or kansas river. this is a muddy stream, of about two hundred and fifty yards in width. we were obliged to be ferried over it in a flat boat; and so large was our company, and so slowly did the ferrymen carry on the necessary operations, that darkness overtook us before half the wagons had crossed the stream. fearing molestation from the numerous indians who were prowling about, we were compelled to keep a strong guard around our camp, and especially around our cattle; and when all the preliminaries had been arranged, we betook ourselves to rest; but our tranquility was soon interrupted by one of the most terrific thunder storms that i ever witnessed. it appeared to me that the very _elements_ had broken loose, and that each was engaging madly in a desperate struggle for the mastery. all was confusion in our camp. the storm had so frightened the cattle, {15} that they were perfectly furious and ungovernable, and rushed through the guard, and dashed forward over the country before us: nothing could be done to secure them, and we were obliged to allow them to have out their race, and endeavor to guard our camp. _may 13._ early this morning we succeeded in finding and taking possession of our cattle, and by noon all our wagons had crossed the river. soon after we took up our line of march, and after advancing about three miles, encamped near the banks of big soldier creek, for the purpose of organizing the company by an election of officers; the officers _then_ acting having been elected to serve only until the company should reach _this place_.[14] it was decided, when at independence, that _here_ there should be a thorough and complete organization. great interest had been manifested in regard to the matter while upon the road; but _now_ when we had reached the spot and the period for attending to the matter in earnest had arrived, the excitement was intense. the most important officers to be elected were the pilot and captain of the company. there were two candidates for the office of pilot,--one a mr. adams, from independence,--the other a mr. meek, from the same place. mr. adams had once been as far west as fort laramie, had in his possession gilpin's notes,[15] had engaged a spaniard, who had traveled over the whole route, to accompany him, and moreover had been conspicuously instrumental in producing the "oregon fever." in case the company would elect him pilot, and pay him five hundred dollars, _in advance_, he would bind himself to pilot them to fort vancouver. mr. meek, an old mountaineer, had spent several years as a trader and trapper, among the mountains, and had once been through to fort vancouver;[16] he proposed to pilot us through for two hundred and fifty dollars, _thirty_ of which were to be paid in advance, and the balance when we arrived at fort vancouver. a motion was then made to postpone the election to the next day. while we were considering the motion, meek came running into the camp, and informed us that the indians were driving away our cattle. this intelligence caused the utmost confusion: motions and propositions, candidates and their special friends, were alike disregarded; _rifles_ were grasped, and _horses_ were hastily mounted, and away we all galloped in pursuit. our two thousand head of cattle were now scattered over the prairie, at a distance of four or five miles from the camp. {16} about two miles from camp, in full view, up the prairie, was a small indian village; the greater part of our enraged people, with the hope of hearing from the lost cattle, drove rapidly forward to this place. as they approached the village, the poor indians were seen running to and fro, in great dismay--their women and children skulking about and hiding themselves,--while the chiefs came forward, greeted our party kindly, and by signs offered to smoke the pipe of peace, and engage with them in trade. on being charged with the theft of our cattle, they firmly asserted their innocence; and such was their conduct, that the majority of the party was convinced they had been wrongfully accused: but one poor fellow, who had just returned to the village, and manifested great alarm upon seeing so many "pale faces," was taken; and failing to prove his innocence, was hurried away to camp and placed under guard. meanwhile, after the greater part of the company had returned to camp, and the captain had assembled the _judges_, the prisoner was arraigned at the bar for trial, and the solemn interrogatory, "are you guilty or not guilty," was propounded to him: but to this, his only answer was--a grunt, the import of which the honorable court not being able clearly to comprehend, his trial was formally commenced and duly carried through. the evidence brought forward against him not being sufficient to sustain the charge, he was fully acquitted; and, when released, "_split_" for his wigwam in the village. after the excitement had in some degree subsided, and the affair was calmly considered, it was believed by most of us that the false alarm in regard to the indians had been raised with the design of breaking up or postponing the election. if such _was_ the design, it succeeded admirably. _may 14._ immediately after breakfast, the camp was assembled, and proceeded to the election of officers and the business of organization. the election resulted in the choice of s. l. meek, as pilot, and doctor p. welch,[17] formerly of indiana, as captain, with a host of subalterns; such as lieutenants, judges, sergeants, &c. after these matters had been disposed of, we harnessed up our teams and traveled about five miles, and encamped with big soldier creek on our right hand and caw river on our left. the next day we were delayed in crossing big soldier creek, on account of the steepness of its banks; and advanced only twelve miles through a prairie country. here {17} sixteen wagons separated from us, and we were joined by fifteen others. _may 17._ we traveled eighteen miles over a high, rolling prairie, and encamped on the banks of little vermilion creek, in sight of a caw village. the principal chief resides at this village.[18] our camp here replenished their stores; and, although these indians may be a set of beggarly thieves, they conducted themselves honorably in their dealings with us; in view of which we raised for their benefit a contribution of tobacco, powder, lead, &c., and received in return many good wishes for a pleasant and successful journey. after leaving them, we traveled about twelve miles over a fertile prairie. in the evening, after we had encamped and taken our supper, a wedding was attended to with peculiar interest. _may 19._ this day our camp did not rise. a growing spirit of dissatisfaction had prevailed since the election; there were a great number of disappointed candidates, who were unwilling to submit to the will of the majority; and to such a degree had a disorderly spirit been manifested, that it was deemed expedient to divide the company. accordingly, it was mutually agreed upon, to form, from the _whole_ body, three companies; and that, while each company should select its own officers and manage its internal affairs, the pilot, and capt. welsh, who had been elected by the whole company, should retain their posts, and travel with the company in advance. it was also arranged, that each company should take its turn in traveling in advance, for a week at a time. a proposition was then made and acceded to, which provided that a collection of funds, with which to pay the pilot, should be made previous to the separation, and placed in the hands of some person to be chosen by the _whole_, as treasurer, who should give bonds, with approved security, for the fulfilment of his duty. a treasurer was accordingly chosen, who after giving the necessary bond, collected about one hundred and ninety dollars of the money promised; some refused to pay, and others had no money in their possession. all these and similar matters having been satisfactorily arranged, the separation took place, and the companies proceeded to the election of the necessary officers. the company to which i had attached myself, consisting of thirty wagons, insisted that i should officiate as their captain, and with some reluctance i consented. we dispensed with many of the offices and formalities which {18} existed in the former company, and after adopting certain regulations respecting the government of the company, and settling other necessary preliminaries, we retired to rest for the night. _may 20._ we have this day traveled fifteen miles, through a prairie country, with occasionally a small grove along the streams. _may 22._ yesterday after moving thirteen miles we crossed big vermillion, and encamped a mile beyond its west bank; we found a limestone country, quite hilly, indeed almost mountainous. to-day we have crossed bee, and big blue creeks; the latter stream is lined with oak, walnut, and hickory.[19] we encamped two and a half miles west of it. during the night it rained very hard. our cattle became frightened and all ran away. _may 23._ made to-day but eight miles. our pilot notified us that this would be our last opportunity to procure timber for axle trees, wagon tongues, &c., and we provided a supply of this important material. our cattle were all found. _may 25._ early this morning we were passed by col. kearney and his party of dragoons, numbering about three hundred. they have with them nineteen wagons drawn by mules, and drive fifty head of cattle and twenty-five head of sheep. they go to the south pass of the rocky mountains.[20] our travel of to-day and yesterday is thirty-two miles, during which we have crossed several small streams, skirted by trees. the soil looks fertile. _may 26._ overtook capt. welsh's company to-day. we passed twelve miles through a rolling prairie region, and encamped on little sandy. _may 27._ as it was now the turn of our company to travel in advance, we were joined by capt. welsh and our pilot. the country is of the same character with that we passed through on yesterday, and is highly adapted to the purpose of settlement, having a good soil, and streams well lined with timber. _may 31._ in the afternoon of the 28th we struck the republican fork of blue river,[21] along which for fifty miles lay the route we were traveling. its banks afford oak, ash and hickory, and often open out into wide and fertile bottoms. here and there we observed cotton wood and willow. the pea vine grows wild, in great abundance on the bottoms. the pea is smaller than our common garden pea and afforded us a {19} pleasant vegetable. we saw also a few wild turkies. to-day we reached a point where a trail turns from this stream, a distance of twenty-five miles, to the platte or nebraska river. we kept the left hand route, and some nine or ten miles beyond this trail, we made our last encampment on the republican fork. _june 1._ we set out at the usual hour and crossed over the country to platte river; having measured the road with the chain, we ascertained the distance to be eighteen and a half miles, from our encampment of last night. it is all a rolling prairie; and in one spot, we found in pools a little standing water. some two miles before reaching the platte bottom the prairie is extremely rough; and as far as the eye can reach up and down that river, it is quite sandy.[22] we encamped near a marshy spot, occasioned by the overflow of the river, opposite an island covered with timber, to which we were obliged to go through the shallows of the river for fuel, as the main land is entirely destitute of trees. near us the platte bottom is three and a half miles wide, covered with excellent grass, which our cattle ate greedily, being attracted by a salt like substance which covers the grass and lies sprinkled on the surface of the ground. we observed large herds of antelope in our travel of to-day. in the evening it rained very hard. _june 2._ our week of advance traveling being expired, we resolved to make a short drive, select a suitable spot, and lay by for washing. we accordingly encamped about six miles up platte river. as i had been elected captain but for two weeks, and my term was now expired, a new election was held, which resulted in the choice of the same person. the captain, welsh, who was originally elected by all the companies, had been with us one week, and some dissatisfaction was felt, by our company, at the degree of authority he seemed disposed to exercise. we found, too, that it was bad policy to require the several companies to wait for each other;--our supply of provision was considered barely sufficient for the journey, and it behooved us [to] make the best use of our time. at present one of the companies was supposed to be two or three days travel in the rear. we adopted a resolution desiring the several companies to abandon the arrangement that required each to delay for the others; and that each company should have the use of the pilot according to its turn. our proposition was not, for the present, accepted by the other companies. while we were at our washing encampment one {20} of the companies passed us, the other still remaining in the rear. _june 3._ having traveled about eight miles, we halted at noon, making short drives, to enable the rear company to join us. we have no tidings of it as yet. we met seventy-five or eighty pawnee indians returning from their spring hunt.[23] _june 5._ yesterday we traveled about twelve miles, passing captain stephens, with his advance company. to-day we traveled about the same distance, suffering stephens' company to pass us.[24] at noon they were delayed by the breaking of an axletree of one of their wagons, and we again passed them, greatly to their offence. they refused to accede to our terms, and we determined to act on our own responsibility. we therefore dissolved our connection with the other companies, and thenceforward acted independently of them. _june 6._ we advanced twenty miles to-day. we find a good road, but an utter absence of ordinary fuel. we are compelled to substitute for it buffalo dung, which burns freely. _june 7._ we find in our sixteen miles travel to-day that the grass is very poor in the platte bottoms, having been devoured by the buffalo herds. these bottoms are from two to four miles in width, and are intersected, at every variety of interval, by paths made by the buffaloes, from the bluffs to the river. these paths are remarkable in their appearance, being about fifteen inches wide, and four inches deep, and worn into the soil as smoothly as they could be cut with a spade. we formed our encampment on the bank of the river, with three emigrating companies within as many miles of us; two above and one below; one of fifty-two wagons, one of thirteen, and one of forty-three--ours having thirty-seven. we find our cattle growing lame, and most of the company are occupied in attempting to remedy the lameness. the prairie having been burnt, dry, sharp stubs of clotted grass remain, which are very hard, and wear and irritate the feet of the cattle. the foot becomes dry and feverish, and cracks in the opening of the hoof. in this opening the rough blades of grass and dirt collect, and the foot generally festers, and swells very much. our mode of treating it was, to wash the foot with strong soap suds, scrape or cut away all the diseased flesh, and then pour boiling pitch or tar upon the sore. if applied early this remedy will cure. should the heel become worn out, apply tar or pitch, and singe with a hot iron. at our encampment to-night we have abundance of wood for fuel. {21} _june 8._ we advanced to-day about twelve miles. the bottom near our camp is narrow, but abounds in timber, being covered with ash; it, however, affords poor grazing. so far as we have traveled along the platte, we find numerous islands in the river, and some of them quite large. in the evening a young man, named foster,[25] was wounded by the accidental discharge of a gun. the loaded weapon, from which its owner had neglected to remove the cap, was placed at the tail of a wagon; as some one was taking out a tent-cloth, the gun was knocked down, and went off. the ball passed through a spoke of the wagon-wheel, struck the felloe, and glanced. foster was walking some two rods from the wagon, when the half spent ball struck him in the back, near the spine; and, entering between the skin and the ribs, came out about three inches from where it entered, making merely a flesh wound. a small fragment of the ball had lodged in his arm. _june 9._ the morning is rainy. to-day we passed stephens' company, which passed us on yesterday. our dissensions are all healed; and they have decided to act upon our plan. _june 10._ yesterday we traveled fifteen miles; to-day the same distance. we find the grazing continues poor. in getting to our encampment, we passed through a large dog town. these singular communities may be seen often, along the banks of the platte, occupying various areas, from one to five hundred acres. the one in question covered some two hundred or three hundred acres. the prairie-dog is something larger than a common sized gray squirrel, of a dun color; the head resembles that of a bull dog: the tail is about three inches in length. their food is prairie grass. like rabbits, they burrow in the ground, throwing out heaps of earth, and often large stones, which remain at the mouth of their holes. the entrance to their burrows is about four inches in diameter, and runs obliquely into the earth about three feet, when the holes ramify in every direction and connect with each other on every side. some kind of police seems to be observed among them; for at the approach of man, one of the dogs will run to the entrance of a burrow, and, squatting down, utter a shrill bark. at once, the smaller part of the community will retreat to their holes, while numbers of the larger dogs will squat, like the first, at their doors, and unite in the barking. a near approach drives them all under ground. it is singular, {22} but true, that the little screech-owl and the rattlesnake keep them company in their burrows. i have frequently seen the owls, but not the snake, with them. the mountaineers, however, inform me, that they often catch all three in the same hole. the dog is eaten by the indians, with quite a relish; and often by the mountaineers. i am not prepared to speak of its qualities as an article of food. during the night, a mule, belonging to a mr. risley,[26] of our company, broke from its tether, and in attempting to secure it, its owner was repeatedly shot at by the guard; but, fortunately, was not hit. he had run from his tent without having been perceived by the guard, and was crawling over the ground, endeavoring to seize the trail rope, which was tied to his mule's neck. the guard mistook him for an indian, trying to steal horses, and called to him several times; but a high wind blowing he did not hear. the guard leveled and fired, but his gun did not go off. another guard, standing near, presented his piece and fired; the cap burst, without discharging the load. the first guard, by this time prepared, fired a second time, without effect. by this time the camp was roused, and nearly all seized their fire-arms, when we discovered that the supposed indian was one of our own party. we regarded it as providential that the man escaped, as the guard was a good shot, and his mark was not more than eighty yards distant. this incident made us somewhat more cautious about leaving the camp, without notifying the guard. _june 11._ to-day we traveled ten or twelve miles. six miles brought us to the lower crossing of platte river, which is five or six miles above the forks, and where the high ground commences between the two streams. there is a trail which turns over the bluff to the left; we however took the right, and crossed the river.[27] the south fork is at this place about one fourth of a mile wide, and from one to three feet deep, with a sandy bottom, which made the fording so heavy that we were compelled to double teams. the water through the day is warm; but as the nights are cool, it is quite cool enough in the morning. on the west bank of the river was encamped brown's company, which passed us whilst we were organizing at caw river. we passed them, and proceeded along the west side of the south fork, and encamped on the river bank. at night our hunters brought in some buffalo meat. _june 13._ yesterday we followed the river about thirteen miles, and encamped on its bank, where the road between the {23} two forks strikes across the ridge toward the north fork. to-day we have followed that route: directly across, the distance does not exceed four miles: but the road runs obliquely between the two streams, and reaches the north fork about nine miles from our last camp. we found quite a hill to descend, as the road runs up the bottom a half mile and then ascends the bluff. emigrants should keep the bluff sixteen or seventeen miles. we descended a ravine and rested on the bank of the river. _june 15._ yesterday we advanced eight miles, and halted to wash and rest our teams. we have remained all this day in camp. at daylight a herd of buffalo approached near the camp; they were crossing the river, but as soon as they caught the scent, they retreated to the other side. it was a laughable sight to see them running in the water. some of our men having been out with their guns, returned at noon overloaded with buffalo meat. we then commenced jerking it. this is a process resorted to for want of time or means to cure meat by salting. the meat is sliced thin, and a scaffold prepared, by setting forks in the ground, about three feet high, and laying small poles or sticks crosswise upon them. the meat is laid upon those pieces, and a slow fire built beneath; the heat and smoke completes the process in half a day; and with an occasional sunning the meat will keep for months. an unoccupied spectator, who could have beheld our camp to-day, would think it a singular spectacle. the hunters returning with the spoil; some erecting scaffolds, and others drying the meat. of the women, some were washing, some ironing, some baking. at two of the tents the fiddle was employed in uttering its unaccustomed voice among the solitudes of the platte; at one tent i heard singing; at others the occupants were engaged in reading, some the bible, others poring over novels. while all this was going on, that nothing might be wanting to complete the harmony of the scene, a campbellite preacher, named foster, was reading a hymn, preparatory to religious worship. the fiddles were silenced, and those who had been occupied with that amusement, betook themselves to cards. such is but a miniature of the great world we had left behind us, when we crossed the line that separates civilized man from the wilderness. but even here the variety of occupation, the active exercise of body and mind, either in labor or pleasure, the commingling of evil and good, show that the likeness is a true one. {24} _june 17._ on our travel of eight miles, yesterday, we found the bluffs quite high, often approaching with their rocky fronts to the water's edge, and now and then a cedar nodding at the top. our camp, last night, was in a cedar and ash grove, with a high, frowning bluff overhanging us; but a wide bottom, with fine grass around us, and near at hand an excellent spring. to-day five miles over the ridge brought us to ash hollow. here the trail, which follows the east side of the south fork of platte, from where we crossed it, connects with this trail.[28] the road then turns down ash hollow to the river; a quarter of a mile from the latter is a fine spring, and around it wood and grass in abundance. our road, to-day, has been very sandy. the bluffs are generally rocky, at times presenting perpendicular cliffs of three hundred feet high. we passed two companies, both of which we had before passed; but whilst we were lying by on the north fork, they had traveled up the south fork and descended ash hollow. _june 18._ we met a company of mountaineers from fort laramie, who had started for the settlements early in the season, with flat-boats loaded with buffalo robes, and other articles of indian traffic. the river became so low, that they were obliged to lay by; part of the company had returned to the fort for teams; others were at the boat landing, while fifteen of the party were footing their way to the states. they were a jolly set of fellows. four wagons joined us from one of the other divisions, and among them was john nelson, with his family, formerly of franklin county, indiana. we traveled fifteen miles, passing captain smith's company. _june 19._ five miles, to-day, brought us to spring creek; eleven miles further to another creek, the name of which i could not ascertain; there we encamped, opposite the solitary tower.[29] this singular natural object is a stupendous pile of sand and clay, so cemented as to resemble stone, but which crumbles away at the slightest touch. i conceive it is about seven miles distant from the mouth of the creek; though it appears to be not more than three. the height of this tower is somewhere between six hundred and eight hundred feet from the level of the river. viewed from the road, the beholder might easily imagine he was gazing upon some ancient structure of the old world. a nearer approach dispels the illusion, and it looks, as it is, rough and unseemly. it can be ascended, at its north side, by clambering up the rock; holes having been cut in its face for that purpose. the second, or {25} main bench, can be ascended with greater ease at an opening on the south side, where the water has washed out a crevice large enough to admit the body; so that by pushing against the sides of the crevice one can force himself upward fifteen or twenty feet, which places the adventurer on the slope of the second bench. passing round the eastern point of the tower, the ascent may be continued up its north face. a stream of water runs along the north-eastern side, some twenty rods distant from the tower; and deep ravines are cut out by the washing of the water from the tower to the creek. near by stands another pile of materials, similar to that composing the tower, but neither so large nor so high. the bluffs in this vicinity appear to be of the same material. between this tower and the river stretches out a rolling plain, barren and desolate enough. _june 20._ traveling fourteen miles, we halted in the neighborhood of the chimney rock. this is a sharp-pointed rock, of much the same material as the solitary tower, standing at the base of the bluff, and four or five miles from the road. it is visible at a distance of thirty miles, and has the unpoetical appearance of a hay-stack, with a pole running far above its top.[30] _june 24._ since the 20th we have traveled about sixty-two miles, and are now at fort laramie; making our whole travel from independence about six hundred and thirty miles. on the 22d we passed over scott's bluffs, where we found a good spring, and abundance of wood and grass. a melancholy tradition accounts for the name of this spot. a party who had been trading with the indians were returning to the states and encountering a band of hostile savages, were robbed of their peltries and food. as they struggled homeward, one of the number, named scott, fell sick and could not travel. the others remained with him, until the sufferer, despairing of ever beholding his home, prevailed on his companions to abandon him. they left him alone in the wilderness, several miles from this spot. here human bones were afterwards found; and, supposing he had crawled here and died, the subsequent travelers have given his name to the neighboring bluff.[31] _june 25._ our camp is stationary to-day; part of the emigrants are shoeing their horses and oxen; others are trading at the fort and with the indians. flour, sugar, coffee, tea, tobacco, powder and lead, sell readily, at high prices. in the {26} afternoon we gave the indians a feast, and held a long _talk_ with them. each family, as they could best spare it, contributed a portion of bread, meat, coffee or sugar, which being cooked, a table was set by spreading buffalo skins upon the ground, and arranging the provisions upon them. around this attractive board, the indian chiefs and their principal men seated themselves, occupying one fourth of the circle; the remainder of the male indians made out the semi-circle; the rest of the circle was completed by the whites. the squaws and younger indians formed an outer semicircular row immediately behind their dusky lords and fathers. two stout young warriors were now designated as waiters, and all the preparations being completed, the indian chiefs and principal men shook hands, and at a signal the white chief performed the same ceremony, commencing with the principal chief, and saluting him and those of his followers who composed the first division of the circle; the others being considered inferiors, were not thus noticed. the talk preceded the dinner. a trader acted as interpreter. the chief informed us, that "a long while ago some white chiefs passed up the missouri, through his country, saying they were the red man's friends, and that as the red man found them, so would he find all the other pale faces. this country belongs to the red man, but his white brethren travels through, shooting the game and scaring it away. thus the indian loses all that he depends upon to support his wives and children. the children of the red man cry for food, but there is no food. but on the other hand, the indian profits by the trade with the white man. he was glad to see us and meet us as friends. it was the custom when the pale faces passed through his country, to make presents to the indians of powder, lead, &c. his tribe was very numerous, but the most of the people had gone to the mountains to hunt. before the white man came, the game was tame, and easily caught, with the bow and arrow. now the white man has frightened it, and the red man must go to the mountains. the red man needed long guns." this, with much more of the like, made up the talk of the chief, when a reply from our side was expected. as it devolved on me to play the part of the white chief, i told my red brethren, that we were journeying to the great waters of the west. our great father owned a large country there, and we were going to settle upon it. for this purpose we brought with us our wives and little ones. we were compelled {27} to pass through the red man's country, but we traveled as friends, and not as enemies. as friends we feasted them, shook them by the hand, and smoked with them the pipe of peace. they must know that we came among them as friends, for we brought with us our wives and children. the red man does not take his squaws into battle: neither does the pale face. but friendly as we felt, we were ready for enemies; and if molested, we should punish the offenders. some of us expected to return. our fathers, our brothers and our children were coming behind us, and we hoped the red man would treat them kindly. we did not expect to meet so many of them; we were glad to see them, and to hear that they were the white man's friends. we met peacefully--so let us part. we had set them a feast, and were glad to hold a talk with them; but we were not traders, and had no powder or ball to give them. we were going to plough and to plant the ground, and had nothing more than we needed for ourselves. we told them to eat what was before them, and be satisfied; and that we had nothing more to say. the two indian servants began their services by placing a tin cup before each of the guests, always waiting first upon the chiefs; they then distributed the bread and cakes, until each person had as much as it was supposed he would eat; the remainder being delivered to two squaws, who in like manner served the squaws and children. the waiters then distributed the meat and coffee. all was order. no one touched the food before him until all were served, when at a signal from the chief the eating began. having filled themselves, the indians retired, taking with them all that they were unable to eat. this is a branch of the sioux nation, and those living in this region number near fifteen hundred lodges.[32] they are a healthy, athletic, good-looking set of men, and have according to the indian code, a respectable sense of honor, but will steal when they can do so without fear of detection. on this occasion, however, we missed nothing but a frying pan, which a squaw slipped under her blanket, and made off with. as it was a trifling loss, we made no complaint to the chief. here are two forts. fort laramie, situated upon the west side of laramie's fork, two miles from platte river, belongs to the north american fur company.[33] the fort is built of _adobes_. the walls are about two feet thick, and twelve or fourteen feet high, the tops being picketed or spiked. posts are planted in these walls, and support the timber for the roof. {28} they are then covered with mud. in the centre is an open square, perhaps twenty-five yards each way, along the sides of which are ranged the dwellings, store rooms, smith shop, carpenter's shop, offices, &c., all fronting upon the inner area. there are two principal entrances; one at the north, the other at the south. on the eastern side is an additional wall, connected at its extremities with the first, enclosing ground for stables and carrell. this enclosure has a gateway upon its south side, and a passage into the square of the principal enclosure. at a short distance from the fort is a field of about four acres, in which, by way of experiment, corn is planted; but from its present appearance it will probably prove a failure. fort john stands about a mile below fort laramie, and is built of the same material as the latter, but is not so extensive. its present occupants are a company from st. louis.[34] _june 26._ this day, leaving fort laramie behind us, we advanced along the bank of the river, into the vast region that was still between us and our destination. after moving five miles, we found a good spot for a camp, and as our teams still required rest, we halted and encamped, and determined to repose until saturday the 28th. _june 28._ a drive of ten miles brought us to big spring, a creek which bursts out at the base of a hill, and runs down a sandy hollow. the spring is one fourth of a mile below the road. we found the water too warm to be palatable.[35] five miles beyond the creek the road forks; we took the right hand trail, which is the best of the two, and traversed the black hills, as they are called. the season has been so dry that vegetation is literally parched up; of course the grazing is miserable. after proceeding eighteen miles we encamped on bitter cottonwood.[36] _june 29._ to-day we find the country very rough, though our road is not bad. in the morning some of our cattle were missing, and four of the company started back to hunt for them. at the end of fourteen miles we rested at horse shoe creek, a beautiful stream of clear water, lined with trees, and with wide bottoms on each side, covered with excellent grass. at this point our road was about three miles from the river.[37] _july 1._ as the men who left the company on the 29th, to look for our lost cattle, were not returned, we remained in {29} camp yesterday. game seemed abundant along the creek, and our efforts to profit by it were rewarded with three elk and three deer. to-day our cattle hunters still remain behind. we sent back a reinforcement, and hitching up our teams advanced about sixteen miles. eight miles brought us to the dalles of platte, where the river bursts through a mountain spur. perpendicular cliffs, rising abruptly from the water, five hundred or six hundred feet high, form the left bank of the river. these cliffs present various strata, some resembling flint, others like marble, lime, &c. the most interesting feature of these magnificent masses, is the variety of colors that are presented; yellow, red, black and white, and all the shades between, as they blend and are lost in each other. on the top nods a tuft of scrubby cedars. upon the south side, a narrow slope between the bluff and river, affords a pass for a footman along the water's edge, while beyond the bluff rises abruptly. frequently cedar and wild sage is to be seen. i walked up the river a distance of half a mile, when i reached a spot where the rocks had tumbled down, and found something of a slope, by which i could, with the assistance of a long pole, and another person sometimes pushing and then pulling, ascend; we succeeded in clambering up to the top--which proved to be a naked, rough black rock, with here and there a scrubby cedar and wild sage bush. it appeared to be a place of resort for mountain sheep and bears. we followed this ridge south to where it gradually descended to the road. the river in this _kanyon_ is about one hundred and fifty yards wide, and looks deep.[38] at the eastern end of this _kanyon_ comes in a stream which, from appearance, conveys torrents of water at certain seasons of the year. here, too, is a very good camp. by going up the right hand branch five or six miles, then turning to the right up one of the ridges, and crossing a small branch (which joins the river six or seven miles above the _kanyon_) and striking the road on the ridge three miles east of the big timber creek, a saving might be made of at least ten miles travel. we did not travel this route; but, from the appearance of the country, there would be no difficulty. _july 2._ this day we traveled about sixteen miles. the road left the river bottom soon after we started. a trail, however, crosses the bottom for about two miles, and then winds back to the hill. the nearest road is up a small sandy ravine, for two miles, then turn to the right up a ridge, and follow this ridge for eight or ten miles. at the distance of thirteen {30} or fourteen miles, the road which turned to the left near the big spring, connects with this. the road then turns down the hill to the right, into a dry branch, which it descends to big timber creek, where we encamped.[39] _july 3._ this day we traveled about fifteen miles. six miles brought us to a small branch, where is a good camp. near this branch there is abundance of marble, variegated with blue and red, but it is full of seams. the hills in this vicinity are of the red shale formation. in the mountain near by is stone coal. the hills were generally covered with grass. the streams are lined with cotton wood, willow and boxalder. the road was very dusty. _july 4._ we traveled about fifteen miles to-day, the road generally good, with a few difficult places. two wagons upset, but little damage was done. we crossed several beautiful streams flowing from the black hills; they are lined with timber. to-day, as on yesterday, we found abundance of red, yellow and black currants, with some gooseberries, along the streams. _july 5._ we this day traveled about twelve miles. three miles brought us to deer creek.[40] here is an excellent camp ground. some very good bottom land. the banks are lined with timber. stone coal was found near the road. this would be a suitable place for a fort, as the soil and timber is better than is generally found along the upper platte. game in abundance, such as elk, buffalo, deer, antelope and bear. the timber is chiefly cotton wood, but there is pine on the mountains within ten or twelve miles. the road was generally along the river bottom, and much of the way extremely barren. we encamped on the bank of the river. _july 6._ in traveling through the sand and hot sun, our wagon tires had become loose; and we had wedged until the tire would no longer remain on the wheels. one or two axletrees and tongues had been broken, and we found it necessary to encamp and repair them. for this purpose all hands were busily employed. we had neither bellows nor anvil, and of course could not cut and weld tire. but as a substitute, we took off the tire, shaved thin hoops and tacked them on the felloes, heated our tire and replaced it. this we found to answer a good purpose. _july 7._ this day we traveled about ten miles. in crossing a small ravine, an axletree of one of the wagons was broken. {31} the road is mostly on the river bottom. much of the country is barren. _july 8._ six miles travel brought us to the crossing of the north fork of the platte. at 1 o'clock, p. m. all were safely over, and we proceeded up half a mile to a grove of timber and encamped.[41] near the crossing was encamped colonel kearney's regiment of dragoons, on their return from the south pass. many of them were sick. _july 9._ we traveled about ten miles this day, and encamped at the mineral spring. the road leaves the platte at the crossing, and passes over the _red buttes_.[42] the plains in this region are literally covered with buffalo. _july 10._ to-day we traveled about ten miles. the range is very poor, and it has become necessary to divide into small parties, in order to procure forage for our cattle. out of the company five divisions were formed. in my division we had eleven wagons; and we travel more expeditiously, with but little difficulty in finding grass for our cattle. _july 11._ we this day traveled about twelve miles. soon after starting we passed an excellent spring: it is to the right of the road, in a thicket of willows. one fourth of a mile further the road ascends a hill, winds round and passes several marshy springs. the grass is very good, but is confined to patches. our camp was on a small branch running into the sweet water. _july 12._ this day we arrived at _independence rock_. this is a solitary pile of gray granite, standing in an open plain. it is about one-eighth of a mile long and some six or eight rods wide, and is elevated about sixty or seventy feet above the plain. on the north-eastern side the slope is sufficiently gradual to be easily ascended. portions of it are covered with inscriptions of the names of travelers, with the dates of their arrival--some carved, some in black paint, and others in red. sweet water, a stream heading in the wind river mountains, and entering the platte, runs immediately along its southern side, leaving a strip of some twenty or thirty feet of grassy plain between the base of the rock and the creek. we encamped two miles above the rock, having traveled about thirteen miles.[43] _july 13._ we traveled about thirteen miles this day. three miles brought us to the _gap_, or _devil's gate_, as it is sometimes called. the sweet water breaks through a spur of the mountain, which from appearance is four or five hundred feet high. {32} on the south side the rocks project over the stream, but on the north slope back a little. the whole mountain is a mass of gray granite rock, destitute of vegetation, save an occasional scrubby cedar or bush of artemisia. from where the creek enters to where it emerges from this _kanyon_ is three or four hundred yards. the water rushes through like a torrent. at the distance of one hundred rods south of this is the gap, where the road passes; but the rock is not so high. south of this again is another gap, perhaps half or three-fourths of a mile wide. the rocks there rise mountain high.[44] south-west of this is a valley extending as far as the eye can penetrate. as the road passes through this gap, it bears to the right, up the valley of the sweet water. _july 14._ this day we traveled about twenty-two miles. the road sometimes leaves the creek for several miles, and passes over a barren, sandy plain; no kind of vegetation but the wild sage. we this day met a party of men from california and oregon. a portion of those from california spoke unfavorably of that country; and those from oregon spoke highly of the latter country. on this day's march we came in sight of the long-looked-for snowcapped mountains. they were the wind river mountains. on our right is a mass of naked rock; on our left and to the distance of ten or twelve miles is a high range of mountains, mostly covered with timber; whilst in the valley there is no timber, and much of the plain entirely destitute of vegetation. we encamped near the narrows.[45] _july 15._ we traveled about eleven miles to-day. there are two trails, which diverge below the narrows. the nearest and best is that to the right up the creek, crossing it several times; they unite again near where we encamped. the road was good, but as usual very dusty. our hunters wounded a buffalo, and drove him into camp. about twenty men ran to meet him. he gave them battle. they fired a volley that brought him to his knees, and whilst in that position mr. creighton (a young man from ohio) ran across the creek, intending to shoot the animal in the head. when creighton had approached within ten or twelve feet, the enraged animal sprung to his feet and made at him. creighton wheeled and "split" for the camp; the buffalo pursuing to near the bank of the creek, where he stopped. by this time others had arrived with guns, and the buffalo was compelled to yield. in the "spree" one of my horses was shot with a ball in the {33} knee; no bones were broken, and he was able to travel, but he was a long time very lame. _july 16._ this day we traveled about twenty-six miles. four miles brought us to a marshy bottom, where was very good grass. in the centre of this quagmire and near where the road crosses the bottom is a spring of good water. eight miles brought us to a small stream; but little grass. six miles brought us to sweet water; crossed and left it and struck it again in six or eight miles. the grass here is good. wild sage was our only fuel. this night there was a heavy frost. _july 17._ our cattle being much fatigued, we drove but five miles. the road is up the creek bottom, which is mostly covered with grass. a heavy frost: ice formed in buckets one-fourth of an inch thick. we here found the celebrated mountaineer walker, who was traveling to bridger's fort.[46] _july 18._ we traveled about twenty-two miles this day. the road ascends the bluff and winds among rocky hills for six miles, passing over ledges that are entirely naked for rods. the appearance of the country is extremely barren. we passed several rivulets where small parties may obtain grazing for their stock. the day has been quite cold. the wind river mountains are on our right, about twenty miles distant. they presented a most grand appearance. huge masses of ice and snow piled up peak upon peak, with large bodies of timber covering portions of the mountains. we viewed the southern termination of this range; but they extend to the north further than the eye can penetrate. the country between us and the mountains is rolling, and much of it apparently barren. hard frost. _july 19._ this morning we ascended the bank on the south side of sweet water. six miles brought us again to the creek, where is good grass in the bottom and willow for fuel. we crossed, went up the bottom two miles, and crossed back and left the sweet water. _this day we passed over the dividing ridge which separates the waters flowing into the atlantic from those which find their way into the pacific ocean._ we had reached the summit of the rocky mountains. six miles brought us to a spring, the waters of which run into green river, or the great colorado of the west.[47]--here, then, we hailed oregon. here we found a bottom covered with good grass, where we halted until four o'clock, p. m., when we again hitched up and took the plain for little sandy. ten miles brought us to a dry branch, where by digging to the {34} depth of one foot we procured water; but it was brackish, and had a very unpleasant taste. a white sediment, such as we had noticed elsewhere on the road, covered the surface of the ground. ten miles more brought us to little sandy, which we reached at one o'clock in the night, having traveled thirty-one miles. the road was over a barren plain of light sand, and was very dusty. from the spring to little sandy there is no vegetation but the wild sage, and it had a withered appearance. the night was cold, freezing quite hard. little sandy has its source in the wind river mountains.[48] along this stream is a narrow bottom, covered with grass and willows. we are now out of the range of the buffalo, and although not often mentioned, we have seen thousands of these huge animals. there have been so many companies of emigrants in advance of us, that they have frightened the buffalo from the road. we daily see hundreds of antelope. _july 20._ this day we traveled about thirteen miles, to big sandy. the road was over a level sandy plain, covered with wild sage. at little sandy the road forks--one taking to the right and striking big sandy in six miles, and thence forty miles to green river, striking the latter some thirty or forty miles above the lower ford, and thence to big bear river, striking it about fifteen miles below the old road. by taking this trail two and a half days' travel may be saved; but in the forty miles between big sandy and green river there is no water, and but little grass. camps may be had within reasonable distances between green and bear rivers.[49] the left hand trail, which we took, twelve miles from little sandy strikes the big sandy, follows down it and strikes green river above the mouth of big sandy. _july 21._ we traveled about fourteen miles to-day. six miles brought us to green river, or colorado. this is a beautiful clear stream, about one hundred yards wide, with a rapid current over a gravelly bottom. it flows through a barren, sandy country; occasionally the bottoms spread to a mile in width, covered with grass. there is mostly a belt of timber along the banks of the stream.--emigrants had been in the habit of crossing the river on rafts. we succeeded in finding a place where, by hoisting up the wagon-beds six inches, we could ford the river without damaging our goods. this was done by cutting poles and placing them under the wagon-beds, and in one hour we were all safely over. we proceeded down the river eight miles, and encamped in a grove near some {35} cabins built by a party of traders. there is an abundance of fish in this stream, and we had great sport in fishing. _july 23._ this day we traveled about fifteen miles. the road leaves green river near our camp, and passes over a high, barren country, to black's fork; this we followed up some four miles and encamped.[50] as upon other streams, there is occasionally a grassy bottom with a little cotton wood and willow brush. snowy mountains to be seen in the south. _july 24._ we traveled, to-day, about fourteen miles, over a barren country, crossing the creek several times. we noticed a number of piles of stone and earth, some forty or fifty feet high, scattered in different directions, giving the appearance of the general surface having been worn away to that extent by the ravages of time and the elements. _july 25._ this day we traveled about sixteen miles, crossed the creek several times, and encamped near fort bridger. this is a trading fort owned by bridger and bascus. it is built of poles and daubed with mud; it is a shabby concern.[51] here are about twenty-five lodges of indians, or rather white trappers' lodges occupied by their indian wives. they have a good supply of robes, dressed deer, elk and antelope skins, coats, pants, moccasins, and other indian fixens, which they trade low for flour, pork, powder, lead, blankets, butcher-knives, spirits, hats, ready made clothes, coffee, sugar, &c. they ask for a horse from twenty-five to fifty dollars, in trade. their wives are mostly of the pyentes and snake indians.[52] they have a herd of cattle, twenty-five or thirty goats and some sheep. they generally abandon this fort during the winter months. at this place the bottoms are wide, and covered with good grass. cotton wood timber in plenty. the stream abounds with trout. _july 26._ remained at the fort the whole of this day. _july 27._ we traveled about eight miles, to-day, to little muddy. the grazing and water bad. several bad hills. _july 28._ to-day we traveled about sixteen miles. ten miles brought us to the big muddy.[53] country barren. our course is up the big muddy, and nearly north. encamped on the creek. very poor grazing. this is a limestone country. _july 29._ this day we traveled about sixteen miles. our course is still up the muddy. emigrants would do well to push on up to near the head of this creek, as the grass is good, {36} and there are excellent springs of water. the country is very rough. we saw a few beaver dams. _july 30._ we traveled about twenty-five miles this day. twelve miles brought us to the dividing ridge between the waters of green and bear rivers. the ridge is high, but the ascent is not difficult. from this ridge the scenery is most delightful. in one view is the meanders of muddy creek. two companies with large herds of cattle are winding their way up the valley. the bold mountains on either side are very high and rugged. in front and at the distance of twelve miles is the valley of big bear river. a ravine at our feet cuts the spur of the mountain, and empties its waters into bear river. the valley of bear river is four or five miles wide, with willows along its banks. at a distance beyond the bear river is a range of high mountains, stretching as far as the eye can reach, their snowy tops glistening in the rays of the sun. the mountains near the trail are rough and have a singular appearance; the earth being of various colors--black, white, red, yellow, and intermediate shades. occasionally there is a grove of quaking aspen, and a few sour-berry bushes and some cedar. our camp to-night was on bear river; the bottom is sandy, and mostly covered with wild sage.[54] _july 31._ this day we traveled down bear river fifteen miles. the bottom is from two to four miles wide, and mostly covered with good grass. the road excellent. we encamped two miles above smith's fork. the upper road from green river comes in two miles back. _august 1._ we traveled fifteen miles this day. two miles brought us to smith's fork. this is a bold, clear, and beautiful stream, coming in from the east. it is about fifteen yards wide, lined with timber and undergrowth.[55] in this stream is an abundance of mountain trout, some of them very large. the road leads down the bottom of bear river three miles to spring branch, one mile to the narrows and three miles to the first crossing of bear river.[56] here are two trails. the nearest turns to the right up a creek for a mile and a half, crosses the creek and passes over the hill, and strikes the other trail at the foot of big hill, six miles from the crossings. the other trail crosses the river, follows up its bottom round the bend for eight miles, to where it crosses the river, then follows down the bottom three miles, and takes up a valley for one mile to the foot of the big hill, where it intersects the other trail. this is the most level road, but the other is not a bad one. {37} the hills bordering on bear river on this day's travel are very high and rugged; they are covered with grass. the bottoms are from one to four miles wide. we saw this day large herds of antelope. we encamped in the bend of the river, near the second crossings. _august 2._ this day we traveled about nineteen miles. four or five miles brought us to the big hill or mountain. it is about half a mile to the top of the first ridge, and quite steep. the road then turns a few rods to the right, then to the left down a ravine for three hundred yards, and then up a ravine for half a mile to the top of the mountain. we traveled about two miles along the ridge, and then turned to the left down the mountain. it is about one mile to the plain, and generally very steep and stony; but all reached the plain safely, and were truly thankful that they had safely passed one of the most difficult mountains on the road. from the top of this mountain we had a most delightful view of the surrounding country. this is one of the ranges which border this stream. at this place they close in upon both sides so as not to admit of a passage with teams along the river. a road could easily be cut around the point, and save the fatigue of climbing this mountain; the distance would not be materially increased. the valley of bear river bears off to the northwest, and can be seen a great distance. from the south comes in a broad valley, up which can be seen bear lake. a high range of mountains separates it from the river. the outlet of this lake is two or three miles below the narrows made by this mountain.[57] a high range of snow covered mountains can be seen to the southwest. the road strikes the river two miles from the foot of the mountain, at big timber. here is a good camp. eight miles brought us to a spring branch. the bottom here is wide; a low marsh prevents driving to the river. the grass is good. there is a little timber on the mountains. at big timber is a company of trappers and traders attached to bridger's party. _august 3._ we traveled about fourteen miles, crossing a number of spring branches, coming in from the mountains. these branches abound in trout. the ground, for a strip of about four miles, was covered with black crickets of a large size. i saw some that were about three inches in length, and measuring about three-fourths of an inch in diameter; but the common size were two inches in length and one-half or five-eighths of an inch in diameter; their legs were large in proportion {38} to the size of their bodies. some were singing on stalks of wild sage; others crawling in every direction. our teams made great havoc among them; so numerous were they that we crushed them at every step. as soon as one was killed, others of them would alight upon it and devour it. the bottoms are wide, and covered with grass, and the soil looks well. a few patches of snow were seen upon the mountain some ten miles distant. a portion of the mountain is covered with fine timber. the bottoms are rolling. _august 4._ we reached the soda springs, having traveled about eight miles.[58] the first view we had was of two or three white hillocks or mounds, standing up at different points to the right of the road, and near a grove of cedar and pine timber. one of them is about ten rods long at the base, and three or four rods in width; its elevation is probably twenty-five or thirty feet from the plain in which it is situated. the size of these mounds continually increases, as the water oozes out at different points, and produces a crust which becomes quite hard. the rocks, for miles around, are of the soda formation. upon these mounds the water is warm. in a small bottom, immediately before reaching the first of these mounds, and about two hundred yards above the road, is a hole about eight feet in diameter; in this is a pool of water, strongly impregnated with soda. i had no means of ascertaining the depth, but believe it to be considerable; at one edge of it the water was boiling and sparkling; it would sometimes swell four inches above the surface. this pool, and others contiguous, affords excellent drinking water; it was cool, and, when sweetened, would compare favourably with any soda water. just below the mound, and near the grove, is a rapid stream of water, coursing over a rocky bottom, formed by soda. at the crossing of this creek, and below the road, is a morass; and immediately on the bank of the rivulet, is a crevice in the rock, from which a small stream of water issues; this was the best to drink of any i found. after crossing the creek, the distance to the springs generally resorted to is about three-fourths of a mile; they boil up in every direction. several mounds have been formed, of ten feet in height. the water has found some other passage, and left them to moulder away. the centre or middle of these are concave. the surface of the earth here is some twelve or fifteen feet above the level of the river, the bank of which is of rock, of the soda formation. a grove of cedar and pine timber extends from the river back to {39} the mountain, a distance of two and a half or three miles; the space between the road and the river is covered with grass; but between it and the mountain it is barren of vegetation of any kind. the soda has left a sediment, which is now crumbled and loose, with an occasional mound of ten or twelve feet elevation, but no water running. the river here is about one hundred yards in width, and about eighteen inches in depth, running very rapidly. the soda water is bubbling up in every direction, and sometimes rises six inches above the surface of the river. this bubbling extends for near half a mile. a stream comes in from the north at the western edge of the springs, tumbles over the rocks, and finally into the river. near where one branch of this falls over the rock (it has several passages where the road crosses it) is a circular basin in the rock, being two feet in diameter at the top, but larger below. it was covered with grass; and, in walking along, i barely avoided stepping into it; whilst at its edge the purling or gurgling of the water, as it boils up, apprized me of its vicinity. the surface of the water is about three feet below the top of the rock. the water is cool, much more so than the water of the springs, and is remarkably clear. three hundred yards below the crossing of this branch, and immediately on the bank of the river, is the steamboat spring.[59] the water has formed a small cone of about two and a half feet in height, and three feet in diameter, at the base. a hole of six inches in diameter at the top, allows the water to discharge itself. it swells out at intervals of eight or ten seconds, and sometimes flows four or five feet in disjointed fragments. it is lukewarm, and has a milky appearance; but when taken in a vessel becomes as transparent as crystal. it produces a sound similar to the puffing of a steamboat, but not quite so deep. it can frequently be heard at the distance of a quarter of a mile. about six feet from this is a small fissure in the rock, which is called the escape-pipe or gas-pipe. it makes a hissing noise, corresponding with the belching of the spring. the gas emitted from this fissure is so strong that it would suffocate a person, holding his head near the ground. to the rear of this, across the road, are mounds fifty or sixty feet in height; these were entirely dry. up this creek is very good grazing for cattle, but there are found some marshy places contiguous. the bottom upon the opposite side of the river is four or five miles in width, and covered with a good coat of grass. the soil looks good; and if the seasons are not too {40} short, would produce well. the mountain upon the south side is covered with heavy pine timber; on the north side but little timber was observed; what little was noticed consisted principally of scrubby cedars. antelope found in abundance. the water, in many of the springs, is sufficiently strong to raise bread, equally as well as saleratus or yeast. were it not for their remote situation, these springs would be much resorted to, especially during the summer months. the country is mountainous, and its altitude so great, that the air is always cool, and consequently must be healthy. companies wishing to remain for a length of time at the springs, would pursue a proper course in driving their cattle over the river, as good grazing can thereby be had. _august 5._ we traveled about nineteen miles. five miles brought us to where the road leaves the river, and bears northward through a valley. the river bears to the southward and empties its waters into big salt lake.[60] the range of mountains bounding the north side of the river here comes to within a half mile of it, then bears off to the north, leaving a valley of about seven or eight miles in width between it and a range coming from lewis river, and extending south towards salt lake. the range bounding the south side of the river comes abruptly to the stream at this point, presenting huge and cumbrous masses of basaltic rock, but it is generally covered with heavy timber. at this point two trails are found: one striking west, across the valley, to the opposite side; the other, which is the nearest and best, follows around the point, hugging the base of the mountain for several miles. two and one half miles distant, and immediately beneath a cliff of rocks by the road side, is to be found a soda pool. a little spring of cool soda water runs out at the base of the rock, and a basin of eight or ten yards in extent, and about two and one half feet high has been formed. inside of this, is a pool of water;--the material composing the bank around, is of a white color. in a few miles travel, we crossed several spring branches. we then directed our course through the plain for some eight or nine miles, to where we encamped. our camp was located near a spring branch; but a small quantity of wood was found; grazing was excellent. from where the road leaves the river, the country presents every appearance of having been volcanic at some period. craters are yet standing in the plain, exhibiting positive evidence of this fact. a large mound has been formed by the lava ejected from this crater. in the centre is {41} a deep cavity; now partially filled, from the falling in of the masses of bank surrounding it. in every direction the eye rests upon fragments of rock, which have been thrown out in a hot and burning condition, many of them melted and united; pieces resembling broken junk bottles or black glass lay scattered over the plain. the valley for ten or twelve miles is covered with stone of this description. in many places the rocks have been lifted or bulged up to an elevation of ten or fifteen feet, the top has been burst asunder, presenting a cavity of eight or ten feet in width, caused by the fragments having been cast out; the depth of the cavity is from twenty to thirty feet, the sides have a black appearance, and exhibit indications of having been burned; at other places the rock had been lifted up, and elevated above the surface of the earth some five or six feet, and about the same in width, having numerous small apertures in it, the centre being concave. the stone forms a complete arch. at other places the rock has been rent, and a chasm of thirty or forty feet in depth and from two to ten feet in width, has been the result. these chasms are about one quarter of a mile in length. the fragments lay in every direction. the country over this plain is rather barren; but at certain seasons of the year, is covered with grass, which during the summer months dies, leaving but little appearance of vegetation. after we had halted for the night, three families who had separated from our company at the soda springs, passed us. a few hours had elapsed, and we espied one of their number returning post haste to our camp. when he arrived, he was so paralysed with fear, that it was with difficulty we obtained from him the cause of his alarm. it appeared evident, from his statement, that a party of snake indians meditated an attack upon their party. we dispatched a company to their relief, but soon had the gratification to witness the return of their wagons to our camp. it appears that one of their number had marched about two miles in advance of the wagons, when he was discovered by a party of snake indians, lurking in the vicinity, who immediately gave him chase, at every step uttering the most terrific yells, and endeavoured to surround him; but as he was astride a fleet american courser, he succeeded in outstripping them, and arrived at the wagons in time to prepare for their approach. the wagons were then in a deep ravine, and could not be seen, by the indians in pursuit, until within seventy-five yards. as soon as the indians discovered {42} their proximity to the wagons they commenced a precipitate retreat, and the emigrants rejoined our party. _august 6._ we traveled this day about fifteen miles. the road for seven miles is up the valley; it then takes over the mountain, to the waters running into snake or lewis river. the high range of mountains which bears off towards _salt lake_, terminates near the road on the left. the road follows a ravine, and winds about among the hills, and thickets of quaking aspen, until it reaches a spring branch, down which it follows, to near fort hall. over the ridge, and for two miles down the branch, there is but little grass found. at the distance of three miles, on our left up the mountain, were several patches of snow. a few of our party brought some of the snow to our camp. _august 7._ this day we made about eighteen miles. for ten miles the road is very good. along the stream is found willow brush, answering for fuel. the last seven miles is over a sandy plain; it was dry, and very heavy traveling. our camp was at a large spring of cold water; grazing was very good. _august 8._ we traveled but five miles, which brought us to fort hall.[61] this is a trading post in the possession of the _hudson's bay company_. like the forts on the east side of the mountains, it is built of mud or adobes. (this term applies to sun-burnt brick.) they are of a similar construction. at each corner is a bastion, projecting out some eight or ten feet, perforated with holes for fire-arms. captain grant is now the officer in command; he has the bearing of a gentleman.[62] the garrison was supplied with flour, which had been procured from the settlements in oregon, and brought here on pack horses. they sold it to the emigrants for twenty dollars per cwt., taking cattle in exchange; and as many of the emigrants were nearly out of flour, and had a few lame cattle, a brisk trade was carried on between them and the inhabitants of the fort. in the exchange of cattle for flour, an allowance was made of from five to twelve dollars per head. they also had horses which they readily exchanged for cattle or sold for cash. the price demanded for horses was from fifteen to twenty-five dollars. they could not be prevailed upon to receive anything in exchange for their goods or provisions, excepting cattle or money. the bottoms here are wide, and covered with grass. there is an abundance of wood for fuel, fencing, and other purposes. {43} no attempt has, as yet, been made to cultivate the soil. i think the drought too great; but if irrigation were resorted to, i doubt not it would produce some kinds of grain, such as wheat, corn, potatoes, &c. our camp was located one mile to the southwest of the fort; and as at all the other forts, the indians swarmed about us. they are of the snake tribe, and inhabit the country bordering on lewis and bear rivers, and their various tributaries. this tribe is said to be numerous; but in consequence of the continual wars which they have engaged in with the sioux, crows and blackfeet, their numbers are rapidly diminishing. snake river, which flows within one half mile of the fort, is a clear and beautiful stream of water.[63] it courses over a pebbly bottom. its width is about one hundred and fifty yards. it abounds in fish of different varieties, which are readily taken with the hook. while we remained in this place, great efforts were made to induce the emigrants to pursue the route to california. the most extravagant tales were related respecting the dangers that awaited a trip to oregon, and of the difficulties and trials to be surmounted. the perils of the way were so magnified as to make us suppose the journey to oregon almost impossible. for instance, the two crossings of _snake_ river, and the crossing of the columbia, and other smaller streams, were represented as being attended with great danger; also that no company heretofore attempting the passage of these streams, succeeded, but with the loss of men, from the violence and rapidity of the current; as also that they had never succeeded in getting more than fifteen or twenty head of cattle into the willamette valley. in addition to the above, it was asserted that three or four tribes of indians, in the middle region, had combined for the purpose of preventing our passage through their country, and should we attempt it, we would be compelled to contend with these hostile tribes. in case we escaped destruction at the hands of the savages, a more fearful enemy, that of famine, would attend our march; as the distance was so great that winter would overtake us before making the passage of the cascade mountains. on the other hand, as an inducement to pursue the california route, we were informed of the shortness of the route, when compared with that to oregon; as also of many other superior advantages it possessed. {44} these tales, told and rehearsed, were likely to produce the effect of turning the tide of emigration thither. mr. greenwood, an old mountaineer, well stocked with falsehoods, had been dispatched from california to pilot the emigrants through;[64] and assisted by a young man by the name of mcdougal, from indiana, so far succeeded as to induce thirty-five or thirty-six wagons to take that trail.[65] about fifteen wagons had been fitted out, expressly for california; and, joined by the thirty-five afore-mentioned, completed a train of fifty wagons; what the result of their expedition has been, i have not been able to learn.[66] _august 9._ this day we traveled about eight miles; five miles brought us to the crossing of portneth. this is a stream heading in the mountains near the soda springs, receiving numerous branches in this bottom, and is here about eighty yards in width.[67] from this place, it is one mile to the crossing of a narrow slough, with steep banks. we crossed, and journeyed two miles to the bank of snake river, where we encamped. eight wagons joined us at our encampment. _august 10._ we remained in camp. _august 11._ this day we traveled about eight miles; which brought us to within one mile of the american falls.[68] our camp was at the springs. an island in the river afforded excellent grazing for cattle. the country is extremely barren, being sandy sage plains.[69] _august 12._ we traveled about fifteen miles, which brought us to levy creek, or beaver-dam creek, as it is sometimes termed; it is a small stream; its waters flow down a succession of falls, producing a handsome cascade: it has the appearance of having been built up by beaver. the property of the water has turned the material into stone; the water appears to be impregnated with soda; the rocks along the bank are of that formation.[70] the best camp is two miles farther on. _august 13._ this day we traveled about eight miles, to cassia creek; here the california trail turns off. the road {45} has been very dusty and heavy traveling. the country presents the same usual barren appearance.[71] _august 14._ this day we traveled about fifteen miles, and reached marshy springs; the road has been stony and dusty; the country mostly destitute of vegetation--nothing growing but the wild sage and wormwood.[72] _august 15._ we traveled but eleven miles. the road runs over a sage plain for eight miles, when it crosses the stream from the marsh; no water running, and but little standing in pools. at the distance of three miles the road strikes the river bottom, at the lower end of this, at which place the road leaves it; here was found a good camp. _august 16._ we traveled about twenty-three miles. four miles brought us to goose creek. we found difficulty in crossing, and no good location for a camp.[73] after seven miles travel we reached the river; but little grass. twelve miles brought us to dry branch; here also was unsuitable ground for encamping, as the water was standing in pools. the road we traveled was very dusty, and portions of it quite stony; here the river runs through a rocky _kanyon_. the cliffs are sometimes of the height of one thousand feet, and nearly perpendicular.[74] above the _kanyon_, the river is two or three hundred yards wide; but at this place it is not more than one hundred and fifty feet; and at one place, where there is a fall of some twenty feet, its width does not exceed seventy-five feet. in our march this day i attempted to get down to the river, to procure a drink of water, but for six miles was unable to do so, owing to the steep precipitous banks. _august 17._ we traveled but eight miles. the road lay over a sage plain to the bottom on rock creek.[75] here we found a very good camp. _august 18._ this day we traveled about twenty miles. after the distance of eight miles we arrived at the crossing of rock creek, (in a _kanyon_,) here we halted for dinner, and gave our cattle water. we then took up the bluff, and traveled over sand and sage plains for about twelve miles. when night overtook us we drove to the top of the river bluff and encamped. we drove our cattle one and a half miles down the bluff to the river for water. here we found a little grass and green brush, but it was not sufficient in quantity to supply our cattle, and we could do no better. we packed water up the bluff to our camp. the bluffs at this place exceed one thousand feet in height; they are of basalt. the road is on a high barren {46} plain; a range of mountains is on our left hard by, and at a great distance on our right another range appears. _august 19._ we traveled about twelve miles. nine miles brought us to where we pass down to the river bottom; from this point the distance to the river was three miles. a warm spring branch empties itself into the river at this place. emigrants would pursue a more proper course by encamping on the bottom, near the source of rock creek, then drive down to where the road crosses in a _kanyon_, then following the road for eight or nine miles to where the road leaves the bluff of the creek and encamp, driving their cattle into the creek bottom. from this place they can drive to salmon fall creek, just four miles below our present encampment, follow down this creek to its mouth, where will be found an excellent camp. _august 20._ we traveled about nine miles, reaching the salmon falls.[76] here are eighteen or twenty indian huts. salmon come up to these falls: the indians have an abundance of them, which they very readily dispose of for hooks, powder, balls, clothing, calico and knives, and in fact for almost anything we have at our disposal. the river at this place is a succession of cataracts for several miles, the highest of which does not exceed twelve feet. the grazing was very poor, and the country barren as usual. _august 21._ we traveled about twelve miles; for two miles the road is up a sandy hill, it then strikes a sandy sage plain, over which it takes its course for ten miles. here night overtook us, as we had commenced our march at a very late hour on account of having lost some horses. our camp was on the top of the river bluff. it is one mile to water; but little grass was found. this day we found several head of cattle that had given out from fatigue of traveling. some of the companies had been racing, endeavoring to pass each other, and now they have reached a region where but little grass is found--are beginning to reap the reward of their folly. _august 22._ our cattle were so much scattered that it was late in the day when we prepared to resume our march. we traveled about ten miles. at night we left the road, and directed our course to the right, down a ravine to the river, where we encamped. our cattle suffered much for want of food. _august 23._ this morning we turned up the ravine for one and a half miles, and then struck up the hill to the road. three and a half miles brought us to where the road crosses {47} the snake river. in coming down to the river bottom, there is a very steep hill. along the shore of this river was a little grass; there are two islands covered with grass, so that our cattle were soon repaid for their privations heretofore. the difficulties attending the crossing of this stream had been represented as being almost insurmountable; but upon examination we found it an exaggeration. from the main shore to first island there is no difficulty; from first to second island, turn well up, until nearly across, then bear down to where the road enters it. the water is not deep until nearly across, and not then if you keep well up stream. from second island to main shore is more difficult; it is about three hundred yards wide and the current very rapid. strike in, heading well up for two rods, then quartering a little down until eight or ten rods from shore: then quartering a little up for fifteen or twenty rods; then strike up for the coming out place; the bottom is gravelly. with the exception of a few holes, the water for the first fifteen rods is the deepest part of the ford. the bottom is very uneven; there are holes found of six or eight feet in width, many of them swimming. those crossing this stream can escape the deepest of these holes by having horsemen in the van and at each side; it is necessary that there be attached to each wagon four or six yoke of oxen, the current being swift; and in the passage of these holes, previously alluded to, when one yoke is compelled to swim, the others may be in shallow water. great care must be taken that these teams be not beat down too low and pass over the ripple; and to prevent such a casualty, two drivers must attend each wagon. before attempting the passage of the river all articles liable to damage, from coming in contact with the water, should be piled on the top of the wagon bed. we commenced crossing at eleven o'clock, a. m., and at one o'clock, p. m., we effected the passage of the stream, and were so fortunate as to land our goods free from all damage. we traveled two miles to a spring branch and pitched our encampment. good grass, wood and water, were procured in plenty.[77] _august 24._ we traveled but six miles. soon after leaving camp we directed our course up a stony hill; thence over a sage plain to a spring branch.[78] we pursued our way up this branch for one mile, where we obtained good grazing for our cattle; a high range of hills appearing on our right, at the distance of two miles, an occasional grove of pine timber upon them; but, in general, the mountains here are covered with {48} grass; numerous streams issuing from their sides, and pouring their waters in the plain below. there is no appearance of vegetation until you reach the low bottoms immediately along the water's edge. the road traveled to-day was quite stony. the indians along this road are expert in theft and roguery. a young man having a horse which he had taken much pains to get along, when night approached, staked and hobbled him, that he might not stray off; but at night an indian stole into the camp, unhobbled the horse, cut the rope, and took him off, leaving the young man undisturbed in his sleep. a few days thereafter, this indian effected a sale of the horse to one of a party of emigrants traveling behind us. _august 25._ we remained in camp. _august 26._ we traveled about ten miles; our camp was located on a small rivulet, at a quarter of a mile's distance above the road, and near the mouth of the _hot_ spring branch. between the road and the mountain good grazing was found. the river is about eight miles on our left; the space between is a barren, sandy sage plain. _august 27._ we traveled about sixteen miles; one mile brought us to the hot springs, near which the road passes.[79] these springs are in a constant state of ebullition. they number from five to six, extending over a surface of two to three yards, all uniting and forming a stream of one yard in width and about three inches deep, running quite rapid. the water is sufficiently hot for culinary purposes. about fifteen rods off, approaching the mountain, which is half a mile distant, are similar springs, the waters of which flow into a reservoir a short distance below. an ox, belonging to our party, appeared desirous to test the qualities of the water afforded by these springs. his owners, seeing his inclination, attempted to arrest his steps, but failed; when he arrived at the brink of one of them, and stuck his nose in, preparatory to indulging in a draught of the delicious nectar, he immediately wheeled, and made the welkin ring by his bellowing; kicking and running, he showed he was evidently displeased with himself. our camp was on barrel creek bottom, which is very narrow. _august 28._ we traveled about eighteen miles, crossing several running branches. the road is near the base of the mountain; wild sage and grease wood found in plenty. encamped on charlotte's fork, a small branch. _august 29._ we traveled about eighteen miles, which brought us to bois river, a stream of forty or fifty yards in {49} width, and abounding in salmon; its banks are lined with balm of gilead timber.[80] the bottoms here are two or three miles wide, and covered with grass. _august 30._ we traveled about eleven miles. the road is sometimes on bottom, at others, on bluff. the indians are very numerous along this stream; they have a large number of horses; clothing is in much demand; for articles of clothing costing in the states ten or twelve dollars, a very good horse can be obtained. _august 31._ we traveled about 14 miles. the road pursues its course down the valley of the bois river. _september 1._ we traveled about thirteen miles. two miles from camp we crossed bois river. some of the bottoms are covered with grass, others with wild sage and grease wood. the road was very dusty. there is not much timber along the stream, but great quantities of brush. _september 2._ we reached fort bois. this is a trading post of the hudson's bay company, established upon the northern side of snake or lewis river, and one mile below the mouth of bois river. this fort was erected for the purpose of recruiting, or as an intermediate post, more than as a trading point. it is built of the same materials, and modeled after fort hall, but is of a smaller compass. portions of the bottoms around it afford grazing; but, in a general view, the surrounding country is barren.[81] north of this fort is an extensive plain, which has an extremely unfertile appearance; but, i am informed, that during the winter and spring months it affords good grazing. at this fort they have a quantity of flour in store, brought from oregon city, for which they demanded twenty dollars per cwt., in cash; a few of our company being in extreme want, were obliged to purchase at this exorbitant price. at this place the road crosses the river; the ford is about four hundred yards below the fort, and strikes across to the head of an island, then bears to the left to the southern bank; the water is quite deep, but not rapid; it swam some of our smallest work cattle; the bottom is solid and smooth. we cut poles, and laid them across the top of our wagon-beds, piling our loading on them; answering a twofold purpose--preventing our loading from damage, as also by its weight keeping the wagons steady and guarding them against floating. in about three hours we effected our passage in safety, but few of the goods getting wet. we went up the bottom a half mile, and there encamped; {50} driving our cattle on an island hard by, to graze. fort bois is about two hundred and eighty miles below fort hall, following the wagon road; but by crossing the river at fort hall, and going down on the north side, the distance would be lessened, as the river bears off south, and then north; and judging from the appearance of the country, i think a road may be found, equal, if not better than the one on the south side; and, i doubt not, the grazing will be found better.[82] _september 3._ we traveled fifteen miles, to malheur, or malore, as it is sometimes called: here is a good camp. this is a stream of about ten yards in width, having its source in a range of mountains to the southwest, and pursuing its meanderings through a succession of hills, sage and sand plains, and occasionally a fertile bottom, until it arrives at snake river, into which it empties. a few miles below fort bois, its course from its source is north of east. along its banks, near to where the road crosses it, are a number of hot springs; they are of the same temperature of those between the two crossings of snake river.[83] here we met dr. white, a sub-indian agent, accompanied by three others, on their way from oregon to the states.[84] at this place are two trails; the fork is in the bottom above the crossing of the creek, and there is a possibility of emigrants pursuing the wrong route. i do not deem it amiss to give some particulars in relation to this road. mr. meek, who had been engaged as our pilot, but had previously gone in advance of the companies who had employed him, and who had after reaching fort hall, fitted up a party to pilot through to oregon, informed the emigrants that he could, by taking up this stream to near its source, and then striking across the plains, so as to intersect the old road near to the mouth of deshutes or falls river, save about one hundred and fifty miles travel; also that he was perfectly familiar with the country through which the proposed route lay, as he had traveled it; that no difficulty or danger attended its travel. he succeeded in inducing about two hundred families to pursue this route; they accordingly directed their course to the left, up this creek, about ten days previous to our arrival at the forks. _september 4._ we traveled about twenty miles; ten miles brought us to a sulphur spring, and ten miles more to birch creek, where we encamped.[85] the country is considerably rolling, and much of it barren: no timber found. _september 5._ we traveled about eight miles; three miles {51} brought us to snake river, and five more to burnt river. the road is hilly but good; the country mountainous. here is a good camp. _september 6._ we made about twelve miles. the road is up burnt river, and the most difficult road we have encountered since we started. the difficulties arise from the frequent crossings of the creek, which is crooked, narrow and stony. we were often compelled to follow the road, in its windings for some distance, over high, sidelong and stony ridges, and frequently through thickets of brush. the stream is about ten or twelve yards in width, and is generally rapid. the hills are high, and covered with grass.[86] _september 7._ this day we traveled about twelve miles. the road exceeded in roughness that of yesterday. sometimes it pursued its course along the bottom of the creek, at other times it wound its way along the sides of the mountains, so sidelong as to require the weight of two or more men on the upper side of the wagons to preserve their equilibrium. the creek and road are so enclosed by the high mountains, as to afford but little room to pass along, rendering it in some places almost impassable. many of the mountains viewed from here seem almost perpendicular, and of course present a barren surface. the eye is occasionally relieved by a few scrubby cedars; but along the creek is found birch, bitter cottonwood, alder, &c., in quantity, and several kinds of brush and briars, so impenetrable as to preclude ingress. the road pursues its course through these thickets, the axe having been employed; but it is so very narrow as almost to prevent travel. a little digging, and the use of the axe, united with the erection of bridges, would make this a very good road. at first view this road appeared to us impassable, and so difficult of travel, as almost to deter us from the attempt; but knowing that those who had preceded us had surmounted the difficulties, encouraged us to persevere. it required much carefulness, and the exercise of skill on the part of our drivers to pass along and avoid the dangers of the way. we pursued our route without any loss, with the exception of that attending the breakage of two wagon tongues, done in crossing some deep ravines. we also experienced difficulty in finding our cattle, which had strayed away. five miles from camp the road turns up a spring branch to the right, which we followed two miles, crossing it very frequently; it then turns up the mountain of the left, until it strikes another ravine. we followed {52} up this for one mile, where water makes its appearance. here is found a good camp. the road then takes to the left up the hill, and then down to a dry branch: here is a good camp, one mile to running water. this portion of the road is solid and of good travel. _september 8._ this day we traveled about fourteen miles. two miles brought us to the creek again; the bottom here is of some extent. we followed this bottom for the distance of one mile; the road then led up the right hand branch, crossing several small branches, taking up a ravine to the left over a ridge, until it reaches the fork of the river; pursues its route up this river some six or seven miles, crossing it twice, then directs its course to the right, through a narrow ravine over the mountain, then strikes dry branch; we followed up this branch to running water, and near to a scrubby pine; here we encamped. the road has been solid and good. the hills and valleys appear well covered with grass. _september 9._ this day we traveled about sixteen miles. the road runs up the branch for one mile, then turns to the left over the hill, pursuing a very winding course for some thirteen miles, until it reaches a slough in powder river bottoms. powder river is a stream of some eight or ten yards in width, having its source in the high range of mountains on our left, which mountains in many places are covered with snow.[87] an abundance of pine timber is found covering the sides of these mountains, sometimes extending far down into the bottoms, which here are between six and seven miles in width. the soil is fertile and would undoubtedly yield abundantly. to our right, at the distance of fifteen or twenty miles, is presented a high range of mountains, their base covered with grass, their sides with heavy pine timber. at their summit they are entirely destitute of vegetation: some of these are very lofty, their peaks present a very lustrous appearance, resembling the snow mountains. this shining, dazzling appearance they possess, is derived i think from the material of which they are composed, being a kind of white clay. the valley between powder river and this range is very rolling, portions of it covered with wild sage. wild fowl abound in this valley. _september 10._ this day we traveled about ten miles; our course was down the valley of powder river; eight miles brought us to the crossing of the same, one mile to the middle {53} fork, and one to the third fork. there is good ground for encampments at any point along these streams. at our camp we were visited by an indian chief of the tribe caäguas,[88] accompanied by his son. he was of a friendly disposition; his object in visiting us was principally to barter for cattle; he had in his possession thirty or more horses. _september 11._ this day we traveled about twelve miles; for the first five or six miles, the road was quite level and good, it then follows a ridge dividing powder river and grand round; this portion of the road is very uneven and stony. the road leading down into the valley of grand round, is circuitous, and its difficulty of travel enhanced by its roughness; it is about one and a half miles in length, to where it reaches the bottom. grand round is a valley, whose average width does not exceed twenty miles, and is about thirty miles in length; a stream of water of some twenty yards in width passes through this valley, receiving considerable addition to its volume from the many rivulets that pour down their waters from the mountains, by which this valley is enclosed. the bottoms are of rich friable earth, and afford grass of various kinds, among others that of red clover. there is a root here found in great abundance, and known as the _camas_, which is held in high repute by the indians for some medicinal qualities it is thought to possess; wild flax and a variety of other plants grow in luxuriance, like to those i have observed in the western prairies.[89] the streams are generally lined with timber, and abound in salmon and other varieties of fish. upon the sides of the mountains and extending down into the valley are found beautiful groves of yellow pine timber. these mountains are places of resort for bear, deer, and elk. this bottom affords an excellent situation for a settlement, possessing more advantages in that respect, than any found since our departure from the lower platte river. north of this and at the distance of about twenty miles, is another valley, similar in appearance to this, but of greater extent.[90] the streams having their course through this valley empty into lewis river, which is eighty or ninety miles to the north. our camp was at the foot of the hill, convenient to a spring branch. at twilight we were visited by four or five of the caäguas, the tribe alluded to previously. an incident quite worthy of note, occurred at this place. the {54} chief (aliquot by name)[91] who had joined us at our other encampment, and had pursued this day's journey in company, had pitched his tent some three hundred yards to the rear of our camp. in the evening, in strolling about the camp, i came near his tent, and entered with the intention of employing his squaw in the soling of my moccasins; while she was engaged in this employment, a conversation had sprung up between the old chief and myself, in which he took occasion to ask me if i were a christian, as also whether there were many upon the road; to which questions i of course answered in the affirmative, supposing that he merely wished to know, whether i classed myself with the heathen or christians. on my return to our camp, some one of our party proposed that we should while away an hour or so, in a game at cards, which was readily assented to. we had but engaged in our amusement, when the old chief aliquot made his appearance, holding a small stick in his hand; he stood transfixed for a moment, and then advanced to me, raising his hand, which held the stick in the act of chastising me, and gently taking me by the arm, said "captain--captain--no good; no good." you may guess my astonishment, at being thus lectured by a "wild and untutored savage," twenty five hundred miles from a civilized land. i inwardly resolved to abandon card playing forever. _september 12._ this day we traveled about seven miles; the road runs across the upper end of grand round, to a small spring branch, when it again ascends the mountains. at this spring branch we pitched our camp, and while here, were visited by great numbers of indians, including men, squaws, and papooses. these indians have decidedly a better appearance than any i have met; tall and athletic in form, and of great symmetry of person; they are generally well clad, and observe pride in personal cleanliness. they brought wheat, corn, potatoes, peas, pumpkins, fish, &c. which they were anxious to dispose of for cloths, calico, napkins and other articles of wearing apparel; they also had dressed deer skins and moccasins; they had good horses, which they offered in exchange for cows and heifers; they would gladly exchange a horse for a cow, esteeming the cow as of equal value. they remained with us throughout the day, and when evening approached returned to their lodges along the river two miles distant. i noticed a few of the nez percés (pierced noses) tribe of indians among them.[92] both of these tribes are under the influence and control of two presbyterian missionaries, dr. {55} whitman and mr. spalding, who have resided among them for the last ten years; the former among the caäguas, which inhabit the country bordering on wallawalla river and its tributaries, the blue mountains and grand round: the latter among the nez percés who inhabit the country lying along lewis river, and its tributaries, from the eastern base of the blue mountains to the columbia river.[93] these missionary establishments are of a like character to those farther north. as i shall have occasion to speak of these missionaries, as also the beneficial results which have flowed from their residence among the savages, i will return to my travels. some of our party becoming scant of provision, started for dr. whitman's, the missionary establishment referred to above, intending to rejoin us at umatillo river, my old friend aliquot generously proffered his services as pilot for them, which were readily accepted. _september 13._ this day we traveled about seven miles. from grand round the road ascends the blue mountains, and for two miles is quite steep and precipitous; and to such an extent, as to require six yoke of oxen, or more, to be attached to a wagon; from the summit of these mountains is presented a rolling country for some four miles, alternately prairie and groves of yellow pine timber. in the prairie the grass is quite dry, but among the groves of timber it is green and flourishing. the road is very stony; at the end of four miles it takes down the mountain to grand round river, one mile in distance; it then crosses. here is another bottom covered with grass and bushes, where we pitched our encampment. it is a remarkable circumstance that when individuals are engaged in conversation, their voices can be heard distinctly at a quarter of a mile distance; the discharge of a gun resembles that of a cannon, and is echoed from hill to hill, the reverberations continuing for some length of time. _september 14._ this day we traveled about ten miles. the road ascended the mountain for one and a half or two miles, then wound along the ridge crossing many deep ravines, and pursuing its route over high craggy rocks; sometimes directing its course over an open plain, at others through thick groves of timber, winding among fallen trees and logs, by which the road was encumbered. the scenery is grand and beautiful, and cannot be surpassed; the country to a great distance is rough in the extreme. it may strictly be termed a timber country, although many small prairies are dotted over its surface. {56} the valleys are beautiful and the soil presents a very rich appearance. we encamped in an opening, on the south side of a range of mountains running to the north, and found water in plenty in the bottom of the ravine, on our left, about one fourth of a mile from the road. the timber growing in this region is principally yellow pine, spruce, balsam fir, and hemlock; among the bushes i noticed laurel. _september 15._ this day we traveled about nine miles, over the main ridge of the blue mountains. it is mostly a timbered country through which we passed; the scenery is delightful, resembling in grandeur that presented on yesterday's travel.[94] we had a fine view of the cascade mountains to the west. mount hood, the loftiest of these, was plain to the view. it was some one hundred and fifty miles distant, and being covered with snow, appeared as a white cloud rising above those surrounding it. to the north of mount hood, and north of the columbia, is seen mount saint helen. we halted for the night at lee's encampment.[95] _september 16._ we traveled about sixteen miles this day, which brought us to umatillo river. here is an indian town, the residence of the principal chiefs of the caäguas.[96] at this time they were mostly in the mountains hunting. the road has been good; the first twelve miles led us through a well timbered country, the last four miles over prairie; the country has a dry appearance; the banks of the streams are lined with cottonwood, balm of gilead, choke cherries and every variety of bushes. the indians have a few cultivated fields along this stream; they raise wheat, corn, potatoes, peas and a variety of vegetables. after the planting of crops, the labour of tending devolves upon the squaws, or is done by slaves, of which they have a number, being captives taken in their expeditions against other tribes. they brought us the different products of their farms for traffic. as they expressed great eagerness to obtain clothes, and we had a like desire to obtain vegetables, a brisk traffic was continued until dark. on yesterday morning when about ready to start, we discovered that eight or ten of our work cattle were missing. four of our number, myself included, remained to hunt them up. in our search we rambled over the mountains for several miles, and at night found them about three miles from camp; we then followed the road and arrived at lee's encampment just after dark. this morning an ox, a mule and a horse were missing. three of us remained to hunt for them. we searched the prairies and {57} thickets for miles around, but were unsuccessful. we then pursued the road to umatillo, which we reached at night. _september 17._ at eight o'clock this morning, the men who had left us at grand round for dr. whitman's station, rejoined us, accompanied by the doctor and his lady.[97] they came in a two horse wagon, bringing with them a plentiful supply of flour, meal and potatoes. after our party had taken some refreshment, the march was resumed; our visitors accompanying us to our camp four miles down the river. our present location affords but little grazing. the doctor and lady remained with us during the day; he took occasion to inform us of the many incidents that marked his ten years' sojourn in this wilderness region, of a highly interesting character. among other things, he related that during his residence in this country, he had been reduced to such necessity for want of food, as to be compelled to slay his horse; stating that within that period, no less than thirty-two horses had been served up at his table. it appears that the soil has never been cultivated until within a few years back; but at this time, so much attention is given to the culture of the soil, which yields abundantly, that the privations of famine, or even scarcity, will probably not again recur. the condition of the savages has been greatly ameliorated and their improvement is chiefly attributable to the missionary residents. they have a good stock of cattle, hogs, sheep, &c., and raise an amount of grain not only sufficient to supply their own wants, but affords a surplus. these tribes differ in their appearance and customs from any we have met. they recognise the change which has taken place, and are not ignorant that it has been effected by the efforts and labor of the missionaries. on the other hand, they acknowledge the benefits derived by yielding to their instructions. they have embraced the christian religion, and appear devout in their espousal of christian doctrines. the entire time of the missionaries is devoted to the cause for which they have forsaken their friends and kindred; they have left the comforts of home, and those places which have been endeared by early associations, for the wild wilderness and the habitation of the savage, prompted by those principles of charity and benevolence which the christian religion always inculcates. their privations and trials have been great, but they have borne them with humility and meekness, and the fruits of their devotion are now manifest; and if any class of people deserve well of their country, or are entitled to the thanks of {58} a christian community, it is the missionaries. having no family of their own, they generously take families of orphan children, raise and educate them in a manner that is worthy of all commendation.[98] _september 18._ this morning, after breakfast, our worthy guests left us and we took up our line of march, traveling down the umatillo valley for some twelve miles, crossing the _stream_ twice. the road then takes up the bluff to the right, over a high grassy plain. our encampment was pitched on the bluff on the left of the road. the water required at camp, was packed about one and a half miles, being procured at the base of the bluffs, up which we had to climb. the country is very rolling, covered with dry grass; it is mostly prairie. from this point two snowy peaks appear in view, as also the great valley of the columbia; in truth it may be said that our present location is in that valley, although it is generally termed the middle region. _september 19._ this day we traveled about ten miles. eight miles brought us to the river; we followed the banks of the river for two miles, and encamped; good grazing is found. the stream as usual is lined with timber, but with this exception, it is a rolling prairie as far as can be seen, extending to the north and south, and bounded on the east and west by the blue and cascade mountains. whilst at this camp, we were visited by the wallawalla indians; they reside along the lower part of the wallawalla, the low bottoms of the umatillo and the columbia, from the mouth of lewis river for one hundred miles south. they furnished us with potatoes and venison. in their personal appearance they are much inferior to the caäguas, and want the cleanliness that characterizes that tribe.[99] _september 20._ this day we traveled about fifteen miles. for the first eight miles the soil was remarkably rich in appearance, an admixture of sand and loam, and covered with good grass; the stream is lined with timber, in common with many of those that we have passed; the last seven miles was sandy and heavy traveling. the columbia river presents itself on our right, at the distance of four miles. the river is in view for miles along this road. the prickly pear is found in abundance. it was our intention to have reached the columbia before encamping, but from the difficult traveling, were compelled to encamp on the sandy plain, deprived of water, wood and grass. {59} _september 21._ this morning at daylight we started for the columbia, distance three and a half miles. the river at this place is from a half to three-fourths of a mile in width. it is a beautiful stream; its waters are clear and course gently over a pebbly bottom. along the columbia, is a strip of barren country of twelve miles in width; a little dry grass in bunches, prickly pear and grease wood, dot its surface. with this exception, its appearance was wild and solitary to a great degree; but sterile as it is in appearance, the view is relieved by the majesty of the river that flows by it. immediately along the bank of the columbia is a narrow bottom, covered with green grass, cucklebur, wild sunflower, pig weed, and several other kinds of weeds, all of which were in full bloom. there was something inspiriting and animating in beholding this. a feeling of pleasure would animate our breasts akin to that filling the breast of the mariner, when after years of absence, the shores of his native land appear to view. we could scarce persuade ourselves but that our journey had arrived at its termination. we were full of hope, and as it was understood that we had but one more difficult part of the road to surmount, we moved forward with redoubled energy; our horses and cattle were much jaded, but we believed that they could be got through, or at least the greater part of them. the indians were constantly paying us visits, furnishing us with vegetables, which, by the by, were quite welcome; but they would in return demand wearing apparel, until by traffic, we were left with but one suit. we were compelled to keep a sharp look out over our kitchen furniture, as during these visits it was liable to diminish in quantity by forming an attachment towards these children of the forest, and following them off. many of these savages were nearly naked; they differ greatly from the caäguas, being much inferior; they are a greasy, filthy, dirty set of miscreants as ever might be met. _september 22._ this day we remained in camp, engaged in traffic with the indians. some of our party were in want of horses, and took this occasion to supply themselves. _september 23._ this day we traveled about twenty miles. the first eight miles the road is heavy traveling; the remaining portion however is much better, with the exception of the last five miles, which proved to be quite rocky. there is an occasional green spot to be found, but the whole distance we have traveled since we first struck the river cannot be regarded {60} as more than a barren sandy plain. in our route this day we passed several indian villages; they are but temporary establishments, as their migratory disposition will not justify more permanent structures. _september 24._ this day we traveled but sixteen miles. after a march of seven miles, we arrived at a small creek, a good situation for encamping; nine miles more brought us to dry branch, from whence we proceeded down the bluff to the river; a great portion of the road traveled was sandy and heavy.[100] _september 25._ this day we traveled about fourteen miles. the road was quite hilly; sometimes it followed the bank of the river, at others pursued its course along the high bluff. the river is confined to a very narrow channel; country very barren, and the bluffs of great height. _september 26._ this day we traveled about three miles. the road ascends the bluff; is very difficult in ascent from its steepness, requiring twice the force to impel the wagons usually employed; after effecting the ascent, the sinuosity of the road led us among the rocks to the bluff on john day's river; here we had another obstacle to surmount, that of going down a hill very precipitous in its descent, but we accomplished it without loss or injury to our teams. this stream comes tumbling through kanyons and rolling over rocks at a violent rate. it is very difficult to cross, on account of the stone forming the bed of the creek; its width, however, does not exceed ten yards. the grazing is indifferent, the grass being completely dried.[101] _september 27._ this morning we discovered that several of our trail ropes had been stolen. our horses could not be found until very late; notwithstanding the delay thus occasioned we traveled some twenty miles. the road for the first three miles is up hill; it then pursues its course over a grassy, rolling plain for fifteen or sixteen miles, when it again descends the bluff to the bank of the columbia, which we followed down for one mile and there encamped. the bluffs are very high and rocky. we suffered great inconvenience from the want of fuel, as there is none to be found along the columbia; we collected a few dry sticks of driftwood and weeds, which enabled us to partially cook our food. the road we traveled this day was very good. _september 28._ this day we traveled about twelve miles. two miles brought us to the crossing of de shutes or falls {61} river; a stream having its source in a marshy plain bordering on the great basin, and receives numerous tributaries heading in the cascade mountains, the eastern base of which it follows and pours its waters into the columbia. the mouth of de shutes river is near fifteen miles east of the dalles or eastern base of these mountains; the river is about one hundred yards wide, and the current very rapid; the stream is enclosed by lofty cliffs of basaltic rock. four hundred yards from the columbia is a rapid or cascade. within the distance of thirty yards its descent is from fifteen to twenty feet.[102] the current of this stream was so rapid and violent, and withal of such depth, as to require us to ferry it. some of the companies behind us, however, drove over at its mouth by crossing on a bar. preparatory to ferrying, we unloaded our wagons, and taking them apart, put them aboard some indian canoes, which were in waiting, and crossed in safety; after putting our wagons in order of travel, and preparing to start, we discovered ourselves minus a quantity of powder and shot, two shirts and two pairs of pantaloons, which the indians had appropriated to their own use, doubtless to pay the trouble of ferriage. in the morning a quarrel ensued among the indians respecting their canoes, closing in a _melee_, and such a fight i never before witnessed; stones and missiles of every description that were at hand were used with freedom. we did not interfere with them, and when they were tired of fighting the effects of the battle were visible in numerous instances, such as bloody noses and battered, bleeding heads. we ascended the bluff and traveled along the brink for several miles, then crossed over the ridge to a small creek; after crossing it, we took up a dry run for one or two miles, thence over a ridge to a running branch, and there encamped. the country through which we traveled this day was extremely rough; all prairie, and covered with grass, but very dry. _september 29._ this day we traveled about five miles, which brought us to the _dalles_, or methodist missions.[103] here was the end of our road, as no wagons had ever gone below this place. we found some sixty families in waiting for a passage down the river; and as there were but two small boats running to the cascade falls, our prospect for a speedy passage was not overly flattering. _september 30._ this day we intended to make arrangements for our passage down the river, but we found upon inquiry, that the two boats spoken of were engaged for at least {62} ten days, and that their charges were exorbitant, and would probably absorb what little we had left to pay our way to _oregon city_. we then determined to make a trip over the mountains, and made inquiries respecting its practicability of some indians, but could learn nothing definite, excepting that grass, timber and water would be found in abundance; we finally ascertained that a mr. barlow and mr. nighton had, with the same object, penetrated some twenty or twenty-five miles into the interior, and found it impracticable. nighton had returned, but barlow was yet in the mountains, endeavoring to force a passage; they had been absent six days, with seven wagons in their train, intending to go as far as they could, and if found to be impracticable, to return and go down the river.[104] we succeeded in persuading fifteen families to accompany us in our trip over the mountains, and immediately made preparations for our march. on the afternoon of the first of october, our preparations were announced as complete, and we took up our line of march; others in the mean time had joined us, and should we fall in with barlow, our train would consist of some thirty wagons. but before proceeding with a description of this route, i will enter into a detail of the difficulties undergone by the company of two hundred wagons, which had separated from us at malheur creek, under the pilotage of mr. meek. it will be remembered that s. l. meek had induced about two hundred families, with their wagons and stock, to turn off at malheur, with the view of saving thereby some one hundred and fifty miles travel; and they had started about the last of august. they followed up malheur creek, keeping up the southern branch, and pursuing a southern course. for a long time they found a very good road, plenty of grass, fuel and water; they left these waters, and directed their course over a rough mountainous country, almost entirely bereft of vegetation, were for many days destitute of water, and when they were so fortunate as to procure this indispensable element, it was found stagnant in pools, unfit even for the use of cattle; but necessity compelled them to the use of it. the result was, that it made many of them sick; many of the cattle died, and the majority were unfit for labor. a disease termed camp-fever, broke out among the different companies, of which many became the victims. {63} they at length arrived at a marshy lake, which they attempted to cross, but found it impracticable; and as the marsh appeared to bear south, and many of them were nearly out of provisions, they came to a determination to pursue a northern course, and strike the columbia. meek, however, wished to go south of the lake, but they would not follow him. they turned north, and after a few days' travel arrived at deshutes or falls river. they traveled up and down this river, endeavoring to find a passage, but as it ran through rocky _kanyons_, it was impossible to cross. their sufferings were daily increasing, their stock of provisions was rapidly wasting away, their cattle were becoming exhausted, and many attached to the company were laboring under severe attacks of sickness;--at length meek informed them that they were not more than two days' ride from the dalles. ten men started on horseback for the methodist stations, with the view of procuring provisions; they took with them a scanty supply of provisions, intended for the two days' journey. after riding faithfully for ten days, they at last arrived at the dalles. on their way they encountered an indian, who furnished them with a fish and a rabbit; this with the provision they had started with, was their only food for the ten days' travel. upon their arrival at the dalles they were so exhausted in strength, and the rigidity of their limbs, from riding, was so great, as to render them unable to dismount without assistance. they reached the dalles the day previous to our arrival. at this place they met an old mountaineer, usually called black harris, who volunteered his services as a pilot.[105] he in company with several others, started in search of the lost company, whom they found reduced to great extremities; their provisions nearly exhausted, and the company weakened by exertion, and despairing of ever reaching the settlements. they succeeded in finding a place where their cattle could be driven down to the river, and made to swim across; after crossing, the bluff had to be ascended. great difficulty arose in the attempt to effect a passage with the wagons. the means finally resorted to for the transportation of the families and wagons were novel in the extreme. a large rope was swung across the stream and attached to the rocks on either side; a light wagon bed was suspended from this rope with pulleys, to which ropes were attached; this bed served to convey the families and loading in safety across; the wagons {64} were then drawn over the bed of the river by ropes. the passage of this river occupied some two weeks. the distance was thirty-five miles to the dalles, at which place they arrived about the 13th, or 14th of october. some twenty of their number had perished by disease, previous to their arrival at the dalles, and a like number were lost, after their arrival, from the same cause. this company has been known by the name of the st. joseph company; but there were persons from every state of the union within its ranks. illinois and missouri, however, had the largest representation. the statements i have given are as correct as i could arrive at, from consultation with many of the members. this expedition was unfortunate in the extreme. although commenced under favorable auspices, its termination assumed a gloomy character.[106] it has been stated that some members of the hudson's bay company were instrumental in this expedition, but such is not the fact. whilst i was at fort hall, i conversed with captain grant respecting the practicability of this same route, and was advised of the fact, that the teams would be unable to get through. the individual in charge at fort bois also advised me to the same purport. the censure rests, in the origin of the expedition, upon meek; but i have not the least doubt but he supposed they could get through in safety. i have understood that a few of the members controlled meek, and caused him to depart from his original plan. it was his design to have conducted the party to the _willamette valley_, instead of going to the dalles; and the direction he first traveled induced this belief. meek is yet of the opinion that had he gone round the marshy lake to the south, he would have struck the settlement on the willamette, within the time required to travel to the dalles. had he discovered this route, it would have proved a great saving in the distance. i do not question but that there may be a route found to the south of this, opening into the valley of the willamette.[107] but i must again return to the subject of my travels. _october 1._ at four o'clock, p. m., every thing was ready for our departure, and we pursued our way over the ridge, in a southern course. the country was very rolling, and principally prairie. we found excellent grazing. our camp was pitched on a small spring branch. _october 2._ this day we made about ten miles, crossing several ravines, many of which had running water in them; {65} the country, like that of yesterday's travel, proved to be very rolling; our camp was situated on a small spring branch, having its source in the mountain. _october 3._ this morning i started on horseback in advance of the company, accompanied by one of its members. our course led us south over a rolling, grassy plain; portions of the road were very stony. after a travel of fourteen miles, we arrived at a long and steep declivity, which we descended, and after crossing the creek at its base, ascended a bluff; in the bottom are seen several small enclosures, where the indians have cultivated the soil; a few indian huts may be seen along this stream. meek's company crossed deshute's river near the mouth of this stream, which is five miles distant.[108] after ascending, we turned to the right, directing our course over a level grassy plain for some five miles or more, when we crossed a running branch; five miles brought us to stony branch, and to scattering yellow pine timber. here we found barlow's company of seven wagons. barlow was absent at the time, having with three others started into the mountain two days before. we remained with them all night. _october 4._ this morning myself and companion, with a scanty supply of provisions for a two days' journey, started on a westerly course into the mountains. from the open ground we could see mount hood. our object was to go south and near to this peak. for five miles the country was alternately prairie and yellow pine; we then ascended a ridge, which ascended gradually to the west. this we followed for ten miles. after the crossing of a little brushy bottom, we took over another ridge for four or five miles, very heavily timbered and densely covered with undergrowth. we descended the ridge for a short distance, and traveled a level bench for four miles; this is covered with very large and tall fir timber; we then descended the mountain, traveling westward for one and a half miles; we then came to a small branch, which we named rock creek.[109] after crossing the creek, we ascended a hill for one fourth of a mile, then bore to the left around the hill, through a dense forest of spruce pine. after five miles travel from rock creek we came to a marshy cedar swamp; we turned to the left, and there found a suitable place for crossing. here is a stream of from five to six yards in width, when confined to one channel; but in many places it runs over a bottom of two rods in width, strewed with old moss {66} covered logs and roots. the water was extremely clear and cold. four miles brought us to the top of the bluff of a deep gulf; we turned our course northward for two miles, when darkness overtook us, forcing us to encamp. a little grass was discernible on the mountain sides, which afforded our jaded horses a scanty supply. _october 5._ at an early hour this morning, i proceeded down the mountain to the stream at its base. i found the descent very abrupt and difficult; the distance was one half mile. the water was running very rapid; it had the same appearance as the water of the _missouri_, being filled with white sand. i followed this stream up for some distance, and ascertained that its source was in mount hood; and from the appearance of the banks, it seems that its waters swell during the night, overflowing its banks, and subside again by day; it empties into deshute's river, having a sandy bottom of from two rods to half a mile wide, covered with scrubby pines, and sometimes a slough of alder bushes, with a little grass and rushes. we then ascended the mountain, and as our stock of provisions was barely sufficient to last us through the day, it was found necessary to return to camp. we retraced our steps to where we had struck the bluff, and followed down a short distance where we found the mountain of sufficiently gradual descent to admit of the passage of teams; we could then follow up the bottom towards _mount hood_, and as we supposed that this peak was the dividing ridge, we had reasonable grounds to hope that we could get through. we then took our trail in the direction of the camp; and late in the evening, tired and hungry, we arrived at rock creek, where we found our company encamped. barlow had not yet returned, but we resolved to push forward. _october 6._ we remained in camp. as the grazing was poor in the timber, and our loose cattle much trouble to us, we determined to send a party with them to the settlement. the indians had informed us that there was a trail to the north, which ran over mount hood, and thence to oregon city. this party was to proceed up one of the ridges until they struck this trail, and then follow it to the settlement. two families decided upon going with this party, and as i expected to have no further use for my horse, i sent him with them. they were to procure provisions and assistance, and meet us on the way. we had forwarded, by a company of cattle-drivers from the dalles, which started for the settlement on the first of the {67} month, a request that they would send us provisions and assistance; but as we knew nothing of their whereabouts, we had little hope of being benefited by them.[110] the day was spent in making the necessary arrangements for the cattle-drivers, and for working the road. in the afternoon, barlow and his party returned. they had taken nearly the same route that we had; they had followed up the bluff of this branch of the de shutes, to within twelve or fifteen miles of mount hood, where they supposed they had seen willamette valley. they had then taken the indian trail spoken of, and followed it to one of the ridges leading down to the river de shutes; this they followed, and came out near our camp. we now jointly adopted measures for the prosecution of the work before us. _october 7._ early in the morning, the party designated to drive our loose cattle made their arrangements, and left us. and as we supposed our stock of provisions was insufficient to supply us until these men returned, we dispatched a few men to the dalles for a beef and some wheat; after which, we divided our company so as that a portion were to remain and take charge of the camp. a sufficient number were to pack provisions, and the remainder were to be engaged in opening the road. all being ready, each one entered upon the duty assigned him with an alacrity and willingness that showed a full determination to prosecute it to completion, if possible. on the evening of the 10th, we had opened a road to the top of the mountain, which we were to descend to the branch of the de shutes.[111] the side of the mountain was covered with a species of laurel bush, and so thick, that it was almost impossible to pass through it, and as it was very dry we set it on fire. we passed down and encamped on the creek, and during the night the fire had nearly cleared the road on the side of the mountain. on the morning of october 11th, a consultation was had, when it was determined that mr. barlow, mr. lock, and myself, should go in advance, and ascertain whether we could find a passage over the main dividing ridge. in the mean time, the remainder of the party were to open the road up the creek bottom as far as they could, or until our return. we took some provision in our pockets, an axe, and one rifle, and started. we followed up this branch about fifteen miles, when we reached a creek, coming in from the left. we followed up this for a short distance, and then struck across to {68} the main fork; and in doing so, we came into a cedar swamp, so covered with heavy timber and brush that it was almost impossible to get through it. we were at least one hour in traveling half a mile. we struck the opening along the other fork, traveled up this about eight miles, and struck the indian trail spoken of before, near where it comes down the mountain. the last eight miles of our course had been nearly north--a high mountain putting down between the branch and main fork. where we struck the trail, it turned west into a wide, sandy and stony plain, of several miles in width, extending up to _mount hood_, about seven or eight miles distant, and in plain view. i had never before looked upon a sight so nobly grand. we had previously seen only the top of it, but now we had a view of the whole mountain. no pen can give an adequate description of this scene. the bottom which we were ascending, had a rise of about three feet to the rod. a perfect mass of rock and gravel had been washed down from the mountain. in one part of the bottom was standing a grove of dead trees, the top of which could be seen; from appearance, the surface had been filled up seventy-five or eighty feet about them. the water came tumbling down, through a little channel, in torrents. near the upper end of the bottom, the mountains upon either side narrowed in until they left a deep chasm or gulf, where it emerged from the rocky cliffs above. stretching away to the south, was a range of mountain, which from the bottom appeared to be connected with the mountain on our left. it appeared to be covered with timber far up; then a space of over two miles covered with grass; then a space of more than a mile destitute of vegetation; then commenced the snow, and continued rising until the eye was pained in looking to the top. to our right was a high range, which connected with mount hood, covered with timber. the timber near the snow was dead. we followed this trail for five or six miles, when it wound up a grassy ridge to the left--followed it up to where it connected with the main ridge; this we followed up for a mile, when the grass disappeared, and we came to a ridge entirely destitute of vegetation. it appeared to be sand and gravel, or rather, decomposed material from sandstone crumbled to pieces. before reaching this barren ridge, we met a party of those who had started with the loose cattle, hunting for some which had strayed off. they informed us that they had lost about {69} one-third of their cattle, and were then encamped on the west side of mount hood. we determined to lodge with them, and took the trail over the mountain. in the mean time, the cattle-drovers had found a few head, and traveled with us to their camp. soon after ascending and winding round this barren ridge, we crossed a ravine, one or two rods in width, upon the snow, which terminated a short distance below the trail, and extended up to the top of mount hood. we then went around the mountain for about two miles, crossing several strips of snow, until we came to a deep kanyon or gulf, cut out by the wash from the mountain above us. a precipitate cliff of rocks, at the head, prevented a passage around it. the hills were of the same material as that we had been traveling over, and were very steep. i judged the ravine to be three thousand feet deep. the manner of descending is to turn directly to the right, go zigzag for about one hundred yards, then turn short round, and go zigzag until you come under the place where you started from; then to the right, and so on, until you reach the base. in the bottom is a rapid stream, filled with sand. after crossing, we ascended in the same manner, went round the point of a ridge, where we struck another ravine; the sides of this were covered with grass and whortleberry bushes. in this ravine we found the camp of our friends. we reached them about dark; the wind blew a gale, and it was quite cold. _october 12._ after taking some refreshment, we ascended the mountain, intending to head the deep ravine, in order to ascertain whether there was any gap in the mountain south of us, which would admit of a pass. from this peak, we overlooked the whole of the mountains. we followed up the grassy ridge for one mile and a half, when it became barren. my two friends began to lag behind, and show signs of fatigue; they finally stopped, and contended that we could not get round the head of the ravine, and that it was useless to attempt an ascent. but i was of a different opinion, and wished to go on. they consented, and followed for half a mile, when they sat down, and requested me to go up to the ledge, and, if we could effect a passage up and get round it, to give them a signal. i did so, and found that by climbing up a cliff of snow and ice, for about forty feet, but not so steep but that by getting upon one cliff, and cutting holes to stand in and hold on by, it could be ascended. i gave the signal, and they came up. in the {70} mean time, i had cut and carved my way up the cliff, and when up to the top was forced to admit that it was something of an undertaking; but as i had arrived safely at the top of the cliff, i doubted not but they could accomplish the same task, and as my moccasins were worn out, and the soles of my feet exposed to the snow, i was disposed to be traveling, and so left them to get up the best way they could. after proceeding about one mile upon the snow, continually winding up, i began to despair of seeing my companions. i came to where a few detached pieces of rock had fallen from the ledge above and rolled down upon the ice and snow, (for the whole mass is more like ice than snow;) i clambered upon one of these, and waited half an hour. i then rolled stones down the mountain for half an hour; but as i could see nothing of my two friends, i began to suspect that they had gone back, and crossed in the trail. i then went round to the southeast side, continually ascending, and taking an observation of the country south, and was fully of the opinion that we could find a passage through.[112] the waters of this deep ravine, and of numerous ravines to the northwest, as well as the southwest, form the heads of big sandy and quicksand rivers, which empty into the columbia, about twenty-five or thirty miles below the cascade falls.[113] i could see down this stream some twelve or fifteen miles, where the view was obstructed by a high range coming round from the northwest side, connecting by a low gap with some of the spurs from this peak. all these streams were running through such deep chasms, that it was impossible to pass them with teams. to the south, were two ranges of mountains, connecting by a low gap with this peak, and winding round until they terminated near big sandy. i observed that a stream, heading near the base of this peak and running southeast {71} for several miles, there appeared to turn to the west. this i judged to be the head waters of clackamis, which empties into the willamette, near oregon city; but the view was hid by a high range of mountains putting down in that direction.[114] a low gap seemed to connect this stream, or some other, heading in this high range, with the low bottoms immediately under the base of this peak. i was of the opinion that a pass might be found between this peak and the first range of mountains, by digging down some of the gravel hills; and if not, there would be a chance of passing between the first and second ranges, through this gap to the branch of clackamis; or, by taking some of the ranges of mountains and following them down, could reach the open ground near the willamette, as there appeared to be spurs extending in that direction. i could also see a low gap in the direction from where we crossed the small branch, coming up the creek on the 11th, towards several small prairies south of us. it appeared, that if we could get a road opened to that place, our cattle could range about these prairies until we could find a passage for the remainder of the way. the day was getting far advanced, and we had no provisions, save each of us a small biscuit; and knowing that we had at least twenty-five miles to travel, before reaching those working on the road, i hastened down the mountain. i had no difficulty in finding a passage down; but i saw some deep ravines and crevices in the ice which alarmed me, as i was compelled to travel over them. the snow and ice had melted underneath, and in many places had left but a thin shell upon the surface; some of them had fallen in and presented hideous looking caverns. i was soon out of danger, and upon the east side of the deep ravine i saw my two friends slowly winding their way up the mountain. they had gone to the foot of the ledge, and as they wore boots, and were much fatigued, they abandoned the trip, and returned down the mountain to the trail, where i joined them. we there rested awhile, and struck our course for one of the prairies which we had seen from the mountain. on our way we came to a beautiful spring of water, surrounded with fine timber; the ground was covered with whortle berry bushes, and many of them hanging full of fruit, we halted, ate our biscuit, gathered berries, and then proceeded down the mountain. after traveling about ten miles, we reached the prairie. it was covered with grass, and was very wet. a red sediment {72} of about two inches in depth covered the surface of the ground in the grass, such as is found around mineral springs. a beautiful clear stream of water was running through the prairie, in a southeast direction. we had seen a prairie about two miles further south, much larger than this, which we supposed to be dry. we now took our course for camp, intending to strike through the gap to the mouth of the small branch; but we failed in finding the right _shute_, and came out into the bottom, three miles above where we had first struck the cattle or indian trail. we then took down the bottom, and arrived in camp about eleven o'clock at night; and although not often tired, i was willing to acknowledge that i was near being so. i certainly was hungry, but my condition was so much better than that of my two friends, that i could not murmur. our party had worked the road up to the small branch, where they were encamped. on the morning of the 13th of october we held a consultation, and determined upon the future movements of the company. the party designated to bring us provisions had performed that service; but the amount of our provisions was nearly exhausted, and many of the party had no means of procuring more. some of them began to despair of getting through this season. those left with the camp were unable to keep the cattle together, and a number of them had been lost. the indians had stolen several horses, and a variety of mishaps occurred, such as would necessarily follow from a company so long remaining in one position. they were now on a small creek, five miles from stony hill, which we called camp creek, and near the timber. it was impossible to keep more than one third of the men working at the road; the remainder were needed to attend the camp and pack provisions. it was determined to send a party and view out the road, through to the open country, near the mouth of clackamis, whilst the others were to open the road as far as the big prairie; a number sufficient to bring up the teams and loose cattle, (for a number of families with their cattle had joined since ours left, and portions of our company did not send their loose cattle,) to a grassy prairie in this bottom, and near the mouth of this creek, as the time required to pack provisions to those working on the road would be saved. all being arranged, the next thing was to designate the persons to go ahead of the party, and if found practicable to return with provisions and help; or at all events to ascertain whether the route were practicable. {73} it was determined that i should undertake this trip. i asked only one man to accompany me. we took our blankets, a limited supply of provisions, and one light axe, and at eight o'clock in the morning set out. i was satisfied that the creek which we were then on, headed in the low gap, seen from mount hood; and the party were to open the road up this branch. but as i was to precede them, i passed up this creek for about eight or ten miles, when i discovered the low gap, went through it, and at noon arrived at the wet prairie, which we had visited the day before. the route was practicable, but would require great labor to remove the timber, and cut out the underbrush. we halted at the creek and took some refreshment; we then struck for the low gap between the first range of mountains running west, and the base of mount hood, and traveled through swamps, small prairies, brush, and heavy timber for about twelve miles, when we found the labor necessary to open a wagon road in this direction, to be greater than we could possibly bestow upon it before the rainy season. we determined to try some other route, retraced our steps six or seven miles, and then bore to the right, around the base of the mountain, when we struck into an old indian trail. this we followed for seven or eight miles, through the gap i had seen from mount hood. it is a rolling bottom of about four or five miles in width, and extending from the base of mount hood south for ten or twelve miles. the trail wound around the mountain, but as its course was about that we wished to travel, we followed it until it ran out at the top of the mountain. we then took the ridge west, and traveled until dark; but as the moon shone bright, and the timber was not very thick, we turned an angle down the mountain to the left, to procure water. we traveled about three miles, and struck upon a small running branch; this we followed, until owing to the darkness, we were compelled to encamp, much fatigued, and somewhat disheartened. _october 14._ at daylight we were on the way. my moccasins, which the night before had received a pair of soles, in yesterday's tramp had given way, and in traveling after night my feet had been badly snagged, so that i was in poor plight for walking; but as there was no alternative, we started down the mountain, and after traveling a few miles i felt quite well and was able to take the lead. we traveled about three miles, when we struck a large creek which had a very rapid current, over a stony bottom. i had hoped to find a bottom of sufficient {74} width to admit of a wagon road, but after following down this stream six miles, i was satisfied that it would not do to attempt it this season. the weather, which had been entirely clear for months, had through the night began to cloud up; and in the morning the birds, squirrels, and every thing around, seemed to indicate the approach of a storm. i began for the first time to falter, and was at a stand to know what course to pursue. i had understood that the rainy season commenced in october, and that the streams rose to an alarming height, and i was sensible that if we crossed the branch of the deshutes, which headed in mount hood, and the rainy season set in, we could not get back, and to get forward would be equally impossible; so that in either event starvation would be the result. and as i had been very active in inducing others to embark in the enterprise, my conscience would not allow me to go on and thus endanger so many families. but to go back, and state to them the difficulties to be encountered, and the necessity of taking some other course, seemed to be my duty. i therefore resolved to return, and recommend selecting some suitable place for a permanent camp, build a cabin, put in such effects as we could not pack out, and leave our wagons and effects in the charge of some persons until we could return the next season, unencumbered with our families and cattle, and finish the road;--or otherwise to return to the dalles with our teams, where we could leave our baggage in charge of the missionaries, and then descend the columbia. and when my mind was fully made up, we were not long in carrying it into execution. we accordingly ascended the mountain, as it was better traveling than in the bottom. the distance to the summit was about four miles, and the way was sometimes so steep as to render it necessary to pull up by the bushes. we then traveled east until we reached the eastern point of this mountain, and descended to the bottom, the base of which we had traversed the day before. we then struck for the trail, soon found it, and followed it until it led us to the southern end of the wet prairie. we then struck for the lower gap in the direction of the camp, crossed over and descended the branch to near its mouth, where we found four of our company clearing the road, the remainder having returned to camp creek for teams. but as we had traveled about fifty miles this day, i was unable to reach the camp. _october 15._ this morning we all started for camp, carrying {75} with us our tools and provisions. we reached camp about two p.m. many of our cattle could not be found, but before night nearly all were brought into camp. the whole matter was then laid before the company, when it was agreed that we should remove over to the bottom, near the small creek, and if the weather was unfavorable, leave our baggage and wagons, and pack out the families as soon as possible. but as some were out of provisions, it was important that a messenger should be sent on ahead for provisions, and horses to assist in packing out. mr. buffum, and lady, concluded to pack out what articles they could, and leave a man to take charge of the teams and cattle, until he returned with other horses. he kindly furnished me with one of his horses to ride to the settlement. he also supplied the wife of mr. thompson with a horse. mr. barlow and mr. rector made a proposition to continue working the road until the party could go to and return from the valley; they agreeing to insure the safety of the wagons, if compelled to remain through the winter, by being paid a certain per cent. upon the valuation. this proposition was thought reasonable by some, and it was partially agreed to. and as there were some who had no horses with which to pack out their families, they started on foot for the valley, designing to look out a road as they passed along. some men in the mean time were to remain with the camp, which as above stated was to be removed to the small branch on shutes' fork; and those who intended pushing out at once, could follow up it to the indian trail. this all being agreed upon, arrangements were made accordingly. _october 16._ the morning was lowering, with every indication of rain. messrs. barlow and rector started on the trip.[115] all hands were making arrangements for moving the camp. in the mean time mr. buffum and his lady, and mrs. thompson, were ready to start.[116] i joined them, and we again set out for the settlement. we had traveled about two miles when it commenced raining, and continued raining slightly all day. we encamped on the bottom of shutes' fork, near the small branch. it rained nearly all night. on the morning of the 17th october after our horses had filled themselves, we packed up and started. it was still raining. we followed up this bottom to the trail, and then pursued the trail over mount hood. whilst going over this mountain the rain poured down in torrents, it was foggy, and very cold. we arrived at the deep ravine at about four p.m., {76} and before we ascended the opposite bank it was dark; but we felt our way over the ridge, and round the point to the grassy run. here was grazing for our tired horses, and we dismounted. upon the side of the mountain, where were a few scattering trees, we found some limbs and sticks, with which we succeeded in getting a little fire. we then found a few sticks and constructed a tent, covering it with blankets, which protected our baggage and the two women. mr. buffum and myself stood shivering in the rain around the fire, and when daylight appeared, it gave us an opportunity to look at each others' lank visages. our horses were shivering with the cold, the rain had put out our fire, and it seemed as though every thing had combined to render us miserable. after driving our horses round awhile, they commenced eating; but we had very little to eat, and were not troubled much in cooking it. _october 18._ as soon as our horses had satisfied themselves we packed up and ascended the mountain over the ridge, and for two miles winding around up and down over a rough surface covered with grass. the rain was falling in torrents, and it was so foggy that we could barely see the trail. we at length went down a ridge two miles, when we became bewildered in the thick bushes. the trail had entirely disappeared. we could go no farther. the two women sat upon their horses in the rain, whilst i went back to search for the right trail; buffum endeavoring to make his way down the mountain. i rambled about two miles up the mountain, where i found the right trail, and immediately returned to inform them of it. buffum had returned, and of course had not found the trail. we then ascended the mountain to the trail, when a breeze sprung up and cleared away the fog. we could then follow the trail. we soon saw a large band of cattle coming up the mountain, and in a short time met a party of men following them. they had started from the dalles about eight days before, and encamped that night four or five miles below, and as it was a barren spot, their cattle had strayed to the mountain to get grass. but what was very gratifying, they informed us that a party of men from oregon city, with provisions for our company had encamped with them, and were then at their camp. we hastened down the mountain, and in a few hours arrived at the camp. but imagine our feelings when we learned that those having provisions for us, had despaired of finding us, and {77} having already been out longer than was expected, had returned to the settlement, carrying with them all the provisions, save what they had distributed to these men. we were wet, cold, and hungry, and would not be likely to overtake them. we prevailed upon one of the men whom we found at the camp, to mount one of our horses, and follow them. he was absent about ten minutes, when he returned and informed us that they were coming. they soon made their appearance. this revived us, and for awhile we forgot that we were wet and cold. they had gone about six miles back, when some good spirit induced them to return to camp, and make one more effort to find us. the camp was half a mile from the creek, and we had nothing but two small coffee-pots, and a few tin cups, to carry water in; but this was trifling, as the rain was still pouring down upon us. we speedily made a good fire, and set to work making a tent, which we soon accomplished, and the two women prepared us a good supper of bread and coffee. it was a rainy night, but we were as comfortable as the circumstances would admit. _october 19._ after breakfast, the drovers left us; and as the party which had brought us provisions had been longer out than had been contemplated, mr. stewart and mr. gilmore wished to return. it was determined that mr. buffum, the two females, mr. stewart, and mr. n. gilmore, should go on to the settlement, and that mr. c. gilmore, and the indian who had been sent along to assist in driving the horses, and myself, should hasten on with the provisions to the camp. we were soon on the way, and climbing up the mountain. the horses were heavily loaded, and in many places the mountain was very slippery, and of course we had great difficulty in getting along. it was still raining heavily, and the fog so thick that a person could not see more than fifteen feet around. we traveled about two miles up the mountain, when we found that whilst it had been raining in the valley it had been snowing on the mountain. the trail was so covered with snow that it was difficult to find it, and, to increase our difficulty, the indian refused to go any farther. we showed him the whip, which increased his speed a little, but he soon forgot it, was very sulky, and would not assist in driving. we at length arrived at the deep ravine; here there was no snow, and we passed it without serious difficulty. two of our packs coming off, and rolling down the hill, was the only serious trouble that we had. when we ascended the hill to {78} the eastern side of the gulf, we found the snow much deeper than upon the western side; besides, it had drifted, and rendered the passage over the strip of the old snow somewhat dangerous, as in many places the action of the water had melted the snow upon the under side, and left a thin shell over the surface, and in some places holes had melted through. we were in danger of falling into one of these pits. coming to one of these ravines where the snow had drifted very much, i dismounted in order to pick a trail through, but before this was completed, our horses started down the bank. i had discovered two of these pits, and ran to head the horses and turn them; but my riding horse started to run, and went directly between the two pits; his weight jarred the crust loose, and it fell in, presenting a chasm of some twenty-five or thirty feet in depth, but the horse, being upon the run, made his way across the pit. the other horses, hearing the noise and seeing the pits before them, turned higher up, where the snow and ice were thicker, and all reached the opposite side in safety. our indian friend now stopped, and endeavored to turn the horses back, but two to one was an uneven game, and it was played to his disadvantage. he wanted an additional blanket; this i promised him, and he consented to go on. we soon met two indians, on their way from the dalles to oregon city; our indian conversed with them awhile, and then informed us of his intention to return with them. whilst parleying with him, a party of men from our camp came up the mountain with their cattle; they had driven their teams to the small branch of the de shutes, twelve miles below the mountain, where they had left the families, and started out with their cattle before the stream should get too high to cross. whilst we were conversing with these men, our indian had succeeded in getting one loose horse, and the one which he was riding, so far from the band of pack-horses that, in the fog, we could not see him, and he returned to the settlement with the two indians we had just met. our horses were very troublesome to drive, as they had ate nothing for thirty-six hours; but we succeeded in getting them over the snow, and down to the grassy ridge, where we stopped for the night. my friend gilmore shouldered a bag of flour, carried it half a mile down the mountain to a running branch, opened the sack, poured in water, and mixed up bread. in the mean time, i had built a fire. we wrapped the dough around sticks and baked it before the fire, heated water in our {79} tin cups and made a good dish of tea, and passed a very comfortable night. it had ceased raining before sunset, and the morning was clear and pleasant; we forgot the past, and looked forward to a bright future. _october 20._ at 8 o'clock we packed up, took the trail down the mountain to the gravelly bottom, and then down the creek to the wagon-camp, which we reached at 3 p. m.; and if we had not before forgotten our troubles, we certainly should have done so upon arriving at camp. several families were entirely out of provisions, others were nearly so, and all were expecting to rely upon their poor famished cattle. true, this would have prevented starvation; but it would have been meagre diet, and there was no certainty of having cattle long, as there was but little grass. a happier set of beings i never saw, and the thanks bestowed upon us by these families would have compensated for no little toil and hardship. they were supplied with an amount of provisions sufficient to last them until they could reach the settlements. after waiting one day, mr. gilmore left the camp for the settlement, taking with him three families; others started about the same time, and in a few days all but three families had departed. these were mr. barlow's, mr. rector's, and mr. caplinger's,[117] all of whom had gone on to the settlement for horses. ten men yet remained at camp, and, after selecting a suitable place for our wagon-yard, we erected a cabin for the use of those who were to remain through the winter, and to stow away such of our effects as we could not pack out. this being done, nothing remained but to await the return of those who had gone for pack horses. we improved the time in hunting and gathering berries, until the 25th, when four of us, loaded with heavy packs, started on foot for the valley of the willamette. but before entering upon this trip, i will state by what means the timely assistance afforded us in the way of provisions was effected. the first party starting for the settlement from the dalles, after we had determined to take the mountain route, carried the news to oregon city that we were attempting a passage across the cascade mountains, and that we should need provisions. the good people of that place immediately raised by donation about eleven hundred pounds of flour, over one hundred pounds of sugar, some tea, &c., hired horses, and the messrs. gilmore and mr. stewart volunteered to bring these articles to us.[118] the only expense we were asked to defray was the hire of the horses. they {80} belonged to an indian chief, and of course he had to be paid. the hire was about forty dollars, which brought the flour to about four dollars per hundred, as there were about one thousand pounds when they arrived. those who had the means paid at once, and those who were unable to pay gave their due bills. many of the families constructed packsaddles and put them on oxen, and, in one instance, a feather bed was rolled up and put upon an ox; but the animal did not seem to like his load, and ran into the woods, scattering the feathers in every direction: he was finally secured, but not until the bed was ruined. in most cases, the oxen performed well. in the afternoon of the 25th october, accompanied by messrs. creighton, farwell, and buckley, i again started to the valley. we had traveled but a short distance when we met barlow and rector, who had been to the settlement. they had some horses, and expected others in a short time. they had induced a few families whom they met near mount hood to return with them, and try their chance back to the dalles; but, after waiting one day, they concluded to try the mountain trip again. we traveled up the bottom to the trail, where we encamped; about this time, it commenced raining, which continued through the night. _october 26._ this morning at eight o'clock, we were on the way. it was rainy, and disagreeable traveling. we followed the trail over the main part of the mountain, when we overtook several families, who had left us on the twenty-second. two of the families had encamped the night before in the bottom of the deep ravine; night overtook them, and they were compelled to camp, without fuel, or grass for cattle or horses. water they had in plenty, for it was pouring down upon them all the night. one of their horses broke loose, and getting to the provision sack, destroyed the whole contents. there were nine persons in the two families, four of them small children, and it was about eighty miles to the nearest settlement. the children, as well as the grown people, were nearly barefoot, and poorly clad. their names were powell and senters. another family by the name of hood, had succeeded in getting[119] up the gravelly hill, and finding grass for their animals, and a little fuel, had shared their scanty supply with these two families, and when we overtook them they were all encamped near each other. we gave them about half of our provisions, and encamped near them. mr. hood kindly furnished us with a {81} wagon cover, with which we constructed a tent, under which we rested for the night. _october 27._ the two families who had lost their provisions succeeded in finding a heifer that belonged to one of the companies traveling in advance of us. in rambling upon the rocky cliffs above the trail for grass, it had fallen down the ledge, and was so crippled as not to be able to travel. the owners had left it, and as the animal was in good condition, it was slaughtered and the meat cured. after traveling four miles through the fresh snow, (which had fallen about four inches deep during the night,) we came to where the trail turned down to the sandy. we were glad to get out of the snow, as we wore moccasins, and the bottoms being worn off, our feet were exposed. two miles brought us to where we left the sandy, and near the place where we met the party with provisions; here we met mr. buffum, mr. lock, and a mr. smith,[120] with fourteen pack-horses, going for effects to fort deposit--the name which we had given our wagon camp. the numerous herds of cattle which had passed along had so ate up the grass and bushes, that it was with great difficulty the horses could procure a sufficiency to sustain life. among the rest, was a horse for me; and as i had a few articles at the fort, mr. buffum was to take the horse along and pack them out. two of his horses were so starved as to be unable to climb the mountains, and we took them back with us. the weather by this time had cleared up; we separated, and each party took its way. a short distance below this, our trail united with one which starting from the dalles, runs north of mount hood, and until this season was the only trail traveled by the whites. we proceeded down the sandy, crossing it several times, through thickets of spruce and alder, until we arrived at the forks, which were about fifteen miles from the base of mount hood. the bottom of the sandy is similar to the branch of de shutes which we ascended; but in most cases the gravel and stones are covered with moss; portions of it are entirely destitute of vegetation. the mountains are very high, and are mostly covered with timber. at a few points are ledges of grayish rock, but the greater part of the mountain is composed of sand and gravel; it is much cut up by deep ravines, or kanyons. the trail is sometimes very difficult to follow, on account of the brush and logs; about our camp are a few bunches of {82} brakes, which the horses eat greedily. the stream coming in from the southeast is the one which i followed down on the 14th, and from appearance i came within five miles of the forks. the bottom in this vicinity is more than a mile wide, and is covered with spruce, hemlock and alder, with a variety of small bushes. _october 28._ we started early, and after having traveled several miles, found a patch of good grass, where we halted our horses for an hour. we then traveled on, crossing the sandy three times. this is a rapid stream; the water is cold, and the bottom very stony. we made about fifteen or sixteen miles only, as we could not get our horses along faster. we struck into a road recently opened for the passage of wagons. mr. taylor, from ohio, who had left our company with his family and cattle on the 7th, had arrived safely in the valley, and had procured a party of men and had sent them into the mountains to meet us at the crossing of sandy.[121] they had come up this far, and commenced cutting the road toward the settlements. after traveling this road five or six miles we came upon their camp, where we again found something to eat; our provisions having been all consumed. the road here runs through a flat or bottom of several miles in width, and extending ten or twelve miles down the sandy; it bears towards the north, whilst the creek forms an elbow to the south. the soil is good, and is covered with a very heavy growth of pine and white cedar timber. i saw some trees of white cedar that were seven feet in diameter, and at least one hundred and fifty feet high. i measured several old trees that had fallen, which were one hundred and eighty feet in length, and about six feet in diameter at the root. we passed some small prairies and several beautiful streams, which meandered through the timber. the ground lies sloping to the south, as it is on the north side of the creek. in the evening it commenced raining a little. we remained at this camp all night. _october 29._ this morning, after breakfast, we parted with our friends and pursued our way. we soon ascended a ridge which we followed for seven or eight miles, alternately prairie and fern openings. in these openings the timber is not large, but grows rather scrubby. there are numerous groves of beautiful pine timber, tall and straight. the soil is of a reddish cast, and very mellow, and i think would produce well. we came to the termination of this ridge and descended to the bottom, which has been covered with heavy timber, but which {83} has been killed by fire. from this ridge we could see several others, of a similar appearance, descending gradually towards the west. we here crossed the creek or river, which was deep and rapid; and as our horses were barely able to carry themselves, we were compelled to wade the stream. buckly had been sick for several days, and not able to carry his pack; and if at other times i regretted the necessity of being compelled to carry his pack, i now found it of some advantage in crossing the stream, as it assisted in keeping me erect. buckly in attempting to wade across, had so far succeeded as to reach the middle of the stream, where he stopped, and was about giving way when he was relieved by farwell, a strong athletic yankee from the state of maine. in crossing a small bottom, one of the horses fell; we were unable to raise him to his feet, and were compelled to leave him. the other we succeeded in getting to the top of the hill, where we were also compelled to leave him. the former died, but the latter was taken in a few days after by those who were opening the road. after being relieved of the burthen of the two horses, we pushed forward on foot, as fast as buddy's strength and our heavy packs would allow; and as it had been raining all day, our packs were of double their former weight. at dark we met a party of men who had been through with a drove of cattle, and were returning with pack horses for the three families who were yet at fort deposit. we encamped with them. after crossing the sandy our course was southwest, over a rolling and prairie country. the prairie, as well as the timber land, was covered with fern. the soil was of a reddish cast, and very mellow, as are all the ridges leading from the mountain to the willamette or columbia river. we traveled this day sixteen or seventeen miles. _october 30._ this morning was rainy as usual. four miles brought us to the valley of the clackamis, which was here five or six miles wide. the road was over a rolling country similar to that we passed over on yesterday. to the left of the trail we saw a house at the foot of the hill; we made for it, and found some of our friends who had started from camp with c. gilmore. the claim was held by a man named mcswain.[122] we tarried here until the morning of the 31st, when we again started for oregon city. our trail ran for five or six miles along the foot of the hill, through prairie and timber land. the soil looks good, but is rather inclined to gravel; {84} numerous streams flow down from the high ground, which rises gradually to a rolling fern plain, such as we traveled over on the 28th, and 29th. we then continued upon the high ground seven or eight miles, alternately through timber and fern prairies. we then turned down to clackamis bottom, which is here about one mile wide; this we followed down for three miles, when night overtook us, and we put up at mr. hatche's, having spent just one month in the cascade mountains.[123] _november 1._ this morning we left hatche's, and in two miles travel we reached the crossings of the clackamis river. at this point it is one hundred and fifty yards wide, the banks of gentle descent, the water wending its way for the noble columbia over a pebbly bottom. here is a village of about twenty families, inhabited by the clackamis indians, who are few in number, apparently harmless, and caring for nothing more than a few fish, a little game, or such subsistence as is barely sufficient to support life. there are but two or three houses in the village; they are made by setting up side and centre posts in the ground, the latter being the highest, to receive a long pole to uphold puncheons split out of cedar, which form the covering; the sides are enclosed with the same material, in an upright position. these puncheons are held to their places by leather thongs, fastened around them to the poles that lay upon the posts. after examining this little community, the remains of a once powerful and warlike people,[124] we obtained the use of their canoes, crossed over the river, and after two miles further travel we reached a point that had long been a desired object; where we were to have rest and refreshment. we were now at the place destined at no distant period to be an important point in the commercial history of the union--oregon city.[125] passing through the timber that lies to the east of the city, we beheld oregon and the falls of the willamette at the same moment. we were so filled with gratitude that we had reached the settlements of the white man, and with admiration at the appearance of the large sheet of water rolling over the falls, that we stopped, and in this moment of happiness recounted our toils, in thought, with more rapidity than tongue can express or pen write. here we hastily scanned over the distance traveled, from point to point, which we computed to be in miles as follows, viz: from independence to fort laramie, 629 miles; from fort laramie {85} to fort hall, 585 miles; from fort hall to fort bois, 281 miles; from fort bois to the dalles, 305 miles; from the dalles to oregon city, (by the wagon route south of mount hood,) 160 miles, making the total distance from independence to oregon city, 1960 miles. actual measurement will vary these distances, most probably lessen them; and it is very certain, that by bridging the streams, the travel will be much shortened, by giving to it a more direct course, and upon ground equally favorable for a good road. * * * * * oregon city. now at rest, having arrived at this place, before entering upon a general description of the country, i will give a short account of oregon city, as it appeared to me. this town is located upon the east side of the willamette river, and at the falls. it is about thirty miles above the junction of the willamette with the columbia, following the meanders of the river; but, directly from the columbia at vancouver, it is only about twenty miles. it was laid out by dr. m'laughlin, in 1842, who holds a claim of six hundred and forty acres upon the east side of the river. from the river, upon this side, immediately at the falls, there rises a rocky bluff of about eighty feet in height, which bears off to the northeast. passing down the river, the land lies about ten feet lower than the surface of the water above the falls. this plateau extends for about one-fourth of a mile, when there is a further descent of about fifteen feet, from which a level and fertile bottom skirts the willamette for a mile and a half, to where the waters of the clackamis are united with those of the willamette. upon the plateau, immediately below, and a small portion of the higher ground above the falls, is the portion of his grant, that dr. m'laughlin has laid off in town lots.[126] three years ago, this land was covered with a dense forest, which is now cleared off, to make room for the erection of houses to accommodate the inhabitants of the town. there were already erected, when i left there, about one hundred houses, most of them not only commodious, but neat. among the public buildings, the most conspicuous were the neat methodist church, which is located near the upper part of the town, and a splendid catholic chapel, which stands near the river and the bluff bank at the lower part of the town site.[127] there are two grist mills; one owned by m'laughlin, having three sets of buhr runners, and will compare well with most of the mills in the states; the other is a smaller mill, {86} owned by governor abernethy and mr. beers.[128] at each of these grist-mills there are also saw-mills, which cut a great deal of plank for the use of emigrants. there are four stores, two taverns, one hatter, one tannery, three tailor shops, two cabinet-makers, two silversmiths, one cooper, two blacksmiths, one physician, three lawyers, one printing office, (at which the oregon spectator is printed, semi-monthly, at five dollars per annum,)[129] one lath machine, and a good brick yard in active operation. there are also quite a number of carpenters, masons, &c., in constant employment, at good wages, in and about this village. the population is computed at about six hundred white inhabitants, exclusive of a few lodges of indians. the indians spend most of their nights in gambling. they have a game peculiar to the tribes of the lower columbia, and as i have not seen it described, i will mention it here. six men meet in their lodge, when they divide among themselves into partners of three on each side, then seat themselves, with a pole between the parties; the middle man on one of the sides has a small bone or stick which he holds in his hand; his partners upon the left and right keep up a regular knocking upon the pole with sticks, and singing of songs. the man with the bone keeps shifting it as quickly as possible from hand to hand, to deceive the middle man of the opposite side, as to which hand holds the bone; after he is satisfied, he stops and inquires of his opponent in which hand he holds it. if the opponent guesses rightly, he throws the bone, with a small pointed stick, to the winner, who goes through the same ceremony as the loser had done; but if the man guesses wrongly as to the hand that holds the bone, he hands over a little pointed stick. thus they keep it up until one or the other has won a certain number of pointed sticks, which they have agreed shall constitute the game, when the stakes are delivered over to the winning party. so desperately attached to this game are these savages, that they will gamble away every species of clothing or property they may possess; after this their wives, and they have been known to stake their own services, for a certain number of moons, and sometimes even to become the slaves for life of the more fortunate gamesters.[130] the stores have but a very limited supply of such articles as emigrants need; but the present merchants, or others that will soon locate there, will find it to their interest to take out such commodities as will be required. mr. engle, who went out {87} with the late emigrants, had erected a small foundry, with the intention of casting some old cannon that lay about the fort, and other broken utensils, into those most needed for culinary purposes; but he had not commenced business when i left.[131] unimproved lots sell at from one to five hundred dollars each, (the price varying with their location,) in the currency of the country. the ground back of the town on the bluff, is rather rocky for half a mile, to the foot of the hill; upon ascending the hill, the country consists of fern openings and timber groves alternately, for a distance of about thirty-five miles, to the cascade mountains. upon this bluff, which is covered with timber, there is a small but beautiful lake, supplied with springs, which has an outlet by a rivulet that passes through the town into the river. the river below the falls, for several miles, is about two hundred and fifty yards wide, and opposite the town it is very deep. the bank on the east side, with the exception of a few hundred yards, is a cliff of about twenty feet in height, for the first half mile, of a firm basaltic rock; from thence down to the clackamis the bank is a sandy loam. upon the west side of the willamette, and opposite to oregon city, are laid out two villages; the upper one is called linn city, in honor of the late senator from missouri, whose memory, for his patriotic services in the cause of the oregon emigrant, is held in high esteem by every true friend of his country and of humanity. when dr. linn died, the friends of oregon lost a champion who would not have shamelessly deserted them in the hour of need.[132] mr. moore, late of missouri, is the proprietor;[133] his claim commences one-fourth of a mile below the falls, extends above the falls one and three-fourths of a mile, and back from the river one half of a mile. when i left, there were about fifteen buildings in this village, inhabited mostly by mechanics. the proprietor had refused to sell water power, which was doubtless one of the reasons why more emigrants did not settle in it. next, lower down, is the claim of mr. hugh burns, a native of ireland, but lately an emigrant from missouri; he is the proprietor of multinoma city, which is so called from the indian name for the willamette river, and a tribe of indians of this name that once inhabited that country.[134] this tribe is now nearly extinct. at their burial places, near this, there are hundreds of skulls yet lying over the ground. when i left, {88} there were but few buildings, and some few mechanics settled in it. there are two ferries established over the river, from the villages on the west side, to oregon city.[135] upon the west side, the bank of the river is similar to that on the east, quite high, leaving but a small semicircular level for the first bottom; and upon a farther ascent of about twenty feet, there is a larger plain at the lower end of this bluff. the bottom corresponds well with that above the clackamis on the opposite side, and is covered with a dense growth of fir; the trees are tall and straight. * * * * * description of the country. the journey to oregon city accomplished, and an examination of the immediate vicinity completed, i set about an inquiry as to the features of the country--its fertility, its general susceptibility of improvement, and its capability for the support of a large and industrious population. in so doing, in addition to what i could see for myself, i applied for information to all whose opportunities had been favorable for obtaining a knowledge of any particular section. in this work i was an inquirer after facts, in order to decide the question as to the propriety of taking my family there for a permanent home; and when i noted these facts, no attention was paid to the classification and arrangement of the various subjects, as is generally done by those travelers and geographers whose business is book-making. necessarily, therefore, my journal presents facts, just in the order in which they came to me, and as i received them they are placed before the reader. the landscape immediately adjacent to the villages of linn city and multinoma present several abrupt precipices of various heights, upon each of which is a small level, of lesser and greater widths, clothed with fine grass and studded over with oak timber, until the highest ascent is reached, when it spreads out into an extensive fern opening. from these cliffs there gush out fine streams of pure spring water; and they will afford most beautiful country seats for the erection of residences convenient to the towns, when their improvement shall render such sites desirable. from these heights, (which are easily ascended,) there is a fine view of the falls of the river for several miles, and of mount hood. from the heights to quality plains, a distance of twenty-five miles, the country presents rolling plains, with small groves of oak and fir, and it is well watered by springs and small rivulets. {89} from the description given of the towns, the reader may have already inferred, that the falls of the willamette combine all that is necessary to constitute great water privileges for propelling machinery; but before leaving this point, we will take a more particular view of them. these falls are occasioned by the descent of the whole volume of the river over a ledge of basaltic rock that crosses the entire channel. the greatest fall at any point is twenty-eight feet, but the whole descent here is about forty feet. the water is so divided in the channels at the falls, and the islands are so situated, that nearly all of the water may be rendered available, at a very small expense, when it shall be needed. nature rarely at any one point concentrates so many advantages for the erection and support of a great commercial and manufacturing city, as are to be found here. there is an abundance of water to propel the machinery, stone and timber convenient to erect the necessary buildings, an extensive country of the best farming lands in the world to support the towns by their trade, and a fine navigable river to bring the raw material to the manufactories, and when manufactured to carry the surplus to the pacific, whence it can easily be taken to the best markets the world affords. at this place, the business of the upper willamette will concentrate, for many years at least. tide water reaches to the mouth of the clackamis, which is within two miles of the falls. here there is a considerable ripple in the river, which can easily be removed by confining the clackamis to its original bed upon the eastern side of the island. as it is, there are four feet of water over the bar, and not so rapid as to prevent the ascent of steamboats to the falls. vessels of two hundred and fifty tons burthen have ascended within two miles of the rapids; but, from the crookedness of the stream and the difficulty in tacking so frequently, they generally receive and discharge their cargoes at portland, twelve miles below.[136] traveling up the river, five miles from the falls, brings us to rock island. here is said to be a serious obstruction to the navigation of the river. the difficulty consists in there being several peaks of rocks so elevated, as to be near the surface of the water in a low stage; and as the channels between them are very narrow, and the water quite rapid, boats are liable to run on to them. but the rock can be removed at an inconsiderable expense. it is fifteen miles above the falls to the {90} first gravel bar, at which place, in low water, there is but three feet in the channel.[137] in traveling up the river about fifty miles, i found, in addition to the obstructions named, four other gravel bars, over some of which there were only thirty inches of water. in going the next seventy-five miles, i approached the river several times, and found it to have a deep channel and smooth current. persons who had navigated the river considerably further up, in their traffic with the indians, informed me that it continued equally favourable for navigation. from what i saw and learned of intelligent persons, i think the smaller class of steamboats could for most part of the year ascend two hundred miles above the falls. from the columbia to upper california, is a mountainous belt, known as the coast range.[138] spurs of this range approach nearly to the mouth of the willamette. between these spurs and the river, there is but a small portion of the soil well adapted to agriculture. the higher range to the west of the falls affords a scope of fifty miles, that with the exception of a few openings, and quality plains, is tolerably broken, generally well timbered, finely watered, with many excellent situations for farms; but not so well calculated, as some other parts, for dense settlements. quality plains are distant twenty-five miles west from oregon city; they are about twenty-five miles in length, are alternately rolling prairie and timber, surrounded by heavy growths of firs, many of which rise to the height of two hundred and fifty feet. these plains are all claimed, settled, and mostly improved.[139] they are well watered by many small streams that constitute the two forks of quality river, which unite near the southeast part of the plains, and runs an easterly course, through narrow bottoms, well supplied with timber for more than twenty miles, where it discharges its waters into the willamette, two miles above oregon city. the principal part of the water that flows in quality river descends from the coast range. this stream, like most others in that region, has several falls and rapids, that furnish very desirable sites for the propelling of machinery; but if ever profitable for navigation, will have to be improved by canals and lockage around its falls; which can easily be done, when the commerce of the country will justify the expense. from this stream, and between the coast range and willamette, and to the south, to the shahalam valley, which commences {91} at the low pass of quality plains, is a tract of about twenty by thirty miles in extent, of rolling fertile lands, alternately fern openings and timber groves. from the coast range to the willamette there is a belt of five or six miles in width, which near the river is covered thinly with yellow pines; but nearer the mountain it is better timbered, and well watered from mountain rivulets; mostly a rich and loose soil, composed chiefly of yellow sand, loam and clay. but little of this tract is claimed by the emigrants, as they usually prefer the prairie country above. the shahalam is a small stream, which has its origin in the coast range, runs eastwardly and empties into the willamette, twenty miles above oregon city. this is skirted with good prairies of five or six miles in width, near the mountains; but towards its mouth the valley is covered with timber and fern. the best portion is claimed.[140] eleven miles further up, the willamette receives the waters of the yam-hill. at the mouth it is about twenty-five yards in width, quite deep, and will bear upon its bosom crafts of large burthen for ten miles, to the falls. this stream has two principal branches; the one rising in the coast range, runs for twenty miles in a south-easterly direction, through a beautiful and fertile valley of twelve miles in width, handsomely covered with groves of white oak, and other timber; which is intersected with numerous spring branches, the banks of which are lined with timber, leaving in some places fine bottom prairies, covered with a rich sward of grass. between this fork and the shahalam is a range of hills averaging about two miles in width, extending from a part of the coast range, to within three miles of the willamette. they are of steep ascent, some of them rising to five or six hundred feet in height, well covered with grass, and from their sides issue numerous spring rivulets, which near their origin are lined with fir trees; thence passing through groves of white oak, alder and willow, to the bottom lands, which in crossing some of them disappear, and others after joining together, continue their courses until they unite with the shahalam and yam-hill. the grasses on these hills are a species of red clover, that grows in the summer season about one foot high, and a fine grass, which after the clover disappears, keep them clad in green during the winter. thus they furnish a perpetual supply of food for cattle the whole year. the soil upon these hills is a mixture of clay and loam, of a reddish color, and in the bottoms it is a rich {92} mixture of loam and muck. however, there are some of the hills somewhat sandy, and occasionally interspersed with stony places. from the source of this branch of the yam-hill, (which in the country is called the north fork,) passes the trace, along which the people on clatsop plains drive their cattle a distance of about forty miles, when they reach the coast, fifteen miles south of cape lookout. the south fork of yam-hill has its source in the coast range; where it emerges from the mountains, for the first ten miles, its banks are well supplied with large fir trees, as are its several tributaries; its banks are generally steep, bearing the appearance of having washed out a channel from fifteen to twenty feet in depth. it runs an eastern course for about ten miles, then northeast for some miles, and finally takes a northern direction, until it connects with the north fork, near the falls, after having flowed a distance of about twenty-five miles. the valley watered by this stream is about fifteen miles wide, after the stream emerges from the heavy growth of firs already noticed; for there are firs, more or less, its whole length. from the water courses, upon an average of a little over one fourth of a mile, the valley is fine prairie land, soil light and rich, occasionally interspersed with fine groves, and well adapted to agricultural purposes. it is well covered with grass, as is every portion of the country that has oaken groves, and the lower bottoms yield an abundant supply of the _camas_, a tuberous rooted plant, shaped something like an onion, which it resembles in appearance. it is devoured greedily by hogs, and affords very good nutriment. the indians make much use of it as an article of food. between these streams and within six miles of their junction, commences the high lands of the coast range; the first plateau is about ten miles wide, and well covered with grass. the second plateau, for a few miles is fern openings, with an occasional grove of timber; after this westward to the coast the country is heavily timbered with firs, pine, and occasionally cedar, hemlock, balsam, and nearly all species of the evergreen timber. the streams last described furnish good sites for hydraulic purposes, near the mountains. a considerable portion of the valley of the yam-hill is not only claimed, but settled, and finely improved.[141] leaving the yam-hill and ascending the willamette twenty-five miles, we reach the mouth of the rickerall, a stream {93} which has its source in the same range as the yam-hill; for the first ten miles it runs rapidly over a pebbly bed, and from thence to the mouth has a deep channel, worn in a rich soil, with timbered banks. it flows in an easterly course from the mountains eighteen miles, and unites with the willamette. the valley through which this stream flows resembles that described as watered by the yam-hill; perhaps the soil is a little richer. it is nearly all claimed, and will soon be well settled. upon this stream there is erected a grist mill, and there was a saw mill, but the freshets washed it away last spring.[142] five miles above yam-hill commence a range of hills that extend south to the rickerall, similar to those between shahalam and yam-hill. these hills vary from one to four miles in width, leaving a bottom about six miles wide to skirt the willamette, which is of good soil, well watered and timbered. upon the slopes of these hills are several thousands of acres of white oak, from six to twenty feet in height, some of them of large diameter and all with large and bushy tops; the ground being covered with grass, at a distance they look like old orchards. the timber of these trees is very solid, and promises great durability.[143] the valley between the yam-hill and rickerall is called the applegate settlement; there are three brothers of the applegates, they have fine farms, with good herds of fat and thrifty cattle.[144] the yam-hill plains is called the hemerey settlement, from a family of this name there settled.[145] upon the rickerall are the gillams, fords and shaws, all doing well.[146] the gays and matheneys are settled upon the bottom of the willamette, between yam-hill and rickerall.[147] twelve miles above the rickerall, empties the lucky muke into the willamette; it heads in the same range as the yam-hill, and, like it, has two principal branches, of about the same length, depth and width, and passes through an excellent valley of land, with the same diversities and excellent qualities for farming which are attributed to the yam-hill valley--the timber being more of oak and less of fir. upon this stream several claims are entered, and there is a fine opening for others who may desire to settle there. mouse river joins the willamette about thirty-five miles above the lucky-muke.[148] it has its origin in the coast range, has two principal branches, which unite near the mountains, passes ten miles over a pebbly bottom, and then becomes more sluggish to its mouth. this, like the other streams described, {94} has timber upon its borders, but less than some; good country, fine prospects, and but few claims made. between the lucky-muke and mouse river there is a range of hills, as between other streams; but at one place a spur of the coast range approaches within ten miles of the willamette; from this issue many small streams which run down it, and through the fine plains to the lucky-muke upon the one side, and into mouse river on the other. this is a beautiful region; from the bottom can be seen, at different points, seven snow-covered peaks of the cascade range.[149] the cascade is within view for a great distance, to the north and south; which, together with the beautiful scenery in the valley, renders it a picturesque place. thrifty groves of fir and oak are to be seen in every direction; the earth is carpeted with a covering of luxuriant grass, and fertilized by streams of clear running rivulets, some of which sink down and others pursue their course above ground to the river. between the forks of mouse river approaches a part of the cascade,[150] but it leaves a valley up each branch about one mile in width, the soil of which is rich and good prairie for several miles above the junction. the mountain sides are covered very heavily with fir timber. thus these beautiful valleys offer great inducements to those who wish to have claims of good land, with fine grounds for pasturage and timber close at hand. there are no claims made as yet above the forks. these streams furnish good mill sites for each of the first six miles, and are well filled with trout. from the forks of this stream starts a trail, (or half-made road,) which leads to the falls of the alsa, a stream that heads twenty miles to the south of these forks; the trail leads a westerly course for fifteen miles to the falls; from thence to the coast it is twenty-one miles. from the falls the river runs in a westerly direction. an old indian told me that there was some excellent land in this valley, and that there would be but little difficulty in constructing a good road down it. salmon and other fish are in great abundance in this stream, up to the falls.[151] six miles above mouse river is the mouth of long tom bath;[152] this, like all other streams that enter the willamette upon the western side, heads in the coast range, and after breaking its way through the spurs to the plains below, passes through a valley of good soil. it has deep banks, is more sluggish in its movements than those that join it lower down, {95} is filled with dirty water, has a miry bottom, shaded upon its margin with timber, and in size is something larger than the yam-hill. so far, i have described the valley from personal observation in that direction; but i was informed by those who had good opportunities for obtaining correct information, that it bore off more easterly, and that it was for eighty miles further up as well watered, timbered, and of as luxuriant soil, as that which i have described. it may be proper here to remark, that the further the valley is ascended the oak timber becomes more abundant, and the fir in a corresponding ratio decreases. having described the country for more than one hundred miles upon the western side of the willamette, we will return to the falls and mention a few facts respecting the eastern bank. upon this bank, for ten miles to the south of oregon city, continue fern openings, to a small stream called pole alley,[153] which is skirted with beautiful prairie bottoms of from two to eight miles in length and from one to two miles wide; these, with alternate groves of fir, constitute the principal characteristics of pole alley valley. it is not more than half a mile from the mouth of pole alley, farther to the south, where pudding river embogues into the willamette; it is twenty-five yards in width at the mouth. the valley up this river to the cascade mountains, where it rises, is alternately fine prairie and timber lands, with occasional fern openings. some of the prairies are claimed by the recent emigrants. it is finely clothed in grass, and up the river some distance there are valuable mill sites; the water is clear, and well stocked with fish.[154] from pudding river further south, there are fern openings, which are succeeded by grassy prairies, which give place to fine groves of fir, but sparsely intermingled with cedar. eight miles from pudding river is a village called butes. it was laid out by messrs. abernethy and beers. there were but a few cabins in it when i left. the proprietors had erected a warehouse to store the wheat they might purchase of the settlers back, who should find it convenient to sell their crops at this point. at this place are some conical hills, called butes, which rise to a considerable height; the sides and tops of them are clothed with tall fir trees, which can be seen from the valley above for sixty miles. immediately at this village is a fern opening, covered with an undergrowth of hazel, for three-fourths of a mile back, when it merges into an extensive and fertile prairie.[155] {96} south of butes three miles is the village of shampoic. it was laid out by a mountaineer, of the name of newell, formerly a clerk of the hudson's bay company.[156] it contains a few old shabby buildings, and a warehouse owned by the company, where they receive the wheat of the settlers of the country from thence to the cascade mountains. this is an extensive plain, extending from pudding river up the willamette to the old methodist mission ground, which is distant thirty miles from the mouth of pudding river. the soil for this distance, and for two miles in width, is similar to that described immediately at butes. back of this for twenty-five or thirty miles is a very handsome country, mostly prairie, and fine timber, well watered, with occasionally a hill--the whole covered with a soil quite inviting to the agriculturist, with an abundance of pasturage for cattle. this is called the french settlement, and is one of the oldest in the valley. the catholics have here a mission, schools, a grist and saw mill, and several mechanics; they have also several teachers among the indians, and it is said that they have done much for the improvement of these aborigines. the inhabitants are mostly of what are called french canadians, and were formerly engaged in the service of the hudson bay company, but have now quit it, made claims, and gone to farming. they have very pretty orchards of apple trees, and some peach trees. their wives are natives of the country. many of them are raising families that, when educated, will be sprightly, as they are naturally active and hardy, and appear very friendly and hospitable. but few of them speak the english language fluently; they mostly talk french and chinook jargon.[157] they cultivate but little land, but that little is well done, and the rich soil well repays them for the labor expended upon it. i could not satisfactorily ascertain the population of the settlement, which i much regretted. the old methodist mission is nearly opposite to what is now called matheny's ferry. it was reported to me to have been one of the first missions occupied in the valley, but has been abandoned on account of the overflowing of the river. it consists of only several dilapidated buildings.[158] the soil is gravelly, inclined to barren, with a grove of pines near by. this place for a number of years was under the superintendance of the rev. jason lee. it is here that the remains of his wife are interred; a tombstone marks her resting place, which informs the passer by that she was the first white woman {97} that was buried in oregon territory,--together with the place of her nativity, marriage, &c.[159] the unfortunate location of the mission, and the circumstances under which mrs. lee died, no doubt have had great influence in creating that unfavorable impression of the country in the mind of mr. lee, which he has expressed in some of his letters. the country surrounding the mission is covered mostly with scrubby oak and pine trees. from the mission the road proceeds up the valley, alternately through groves of oak and pine, fern plains, and grassy prairies, in which are several farms, with convenient buildings. after pursuing this route about ten miles, we come to an improvement of several hundred acres, surrounded with small groves of oak. here the soil is quite gravelly, and not very rich. nearly opposite the mouth of the rickerall is the methodist institute, which was located at this place when it was ascertained that the willamette would overflow its bank at the old mission. my opinion is, that the location is a good one, being in a high and healthy neighborhood, and nearly central of what will be the principal population of the valley for long years to come. the course of instruction there given is quite respectable, and would compare well with many of those located in the old and populous settlements of the states. this school is unconnected with any mission. when the missionary board concluded to abandon that field of labor, the institute was bought by the methodists of oregon; hence it continued under its old name. the price of tuition is low, and the means of receiving an education at this place is within the power of those who have but a small amount to expend in its attainment.[160] for the first five miles from the river towards the cascade range, the soil is gravelly; it is then a sandy loam to the foot of the mountain, and is generally an open plain. the valley upon the east side of the river at this place, is about twenty-five miles in width. it is proper, however, to remark, that there are occasional groves of timber interspersing the prairie, and in some places they reach within a short distance of the river. in this last described tract, there are several varieties of soil, with prairie, timber, upland, bottom, and hill side; the whole is well watered. at the institute there reside about fifteen families, and near by several claims are taken, and improvements commenced. the methodist missionaries {98} have erected a saw and grist mill; these mills were sold, as was all the property of the missions in the valley, by mr. gerry, who was sent out to close the missionary matters in that region; they are now owned by resident citizens, and in successful operation. at this place a town is laid out.[161] six miles above the institute commences a range of oak hills, which continue about twelve miles in a southeastern direction along the river, where they connect by a low pass with the cascade range. from this place, at the lower bench of the cascade, commences another range of hills, running south-westwardly, which continue about twenty miles in length, to the mouth of the santaam river, which joins the willamette twenty miles by land above the institute. this is a bold and rapid stream, of about one hundred and fifty yards in width; for a considerable portion of its length, it has a pebbly bottom, and banks covered with fir and white cedar trees of the best quality.[162] the santa anna has four principal branches, with several small tributaries, all lined with timber, leaving a strip of beautiful prairie land between each, of from one-half to four miles in width. the two northern branches rise in mount jefferson, the first running nearly west from its origin to where it leaves the mountain, when it inclines to the south for a few miles, where it receives another branch; from this junction about eight miles, it is joined by a stream that rises in the cascade range, south of mount jefferson. ten miles below this point, the other principal branch, which rises still further to the south, unites with the others, when the river inclines to the west, until it joins the willamette. from its origin in mount jefferson to its termination, is about forty miles; from the oak hills above named is twenty-five miles. a considerable portion of the soil in this valley is quite gravelly, but a great portion is rich, and the prairies are well clothed with luxuriant grass. among the plants, herbs, &c., common to this part of the country, is wild flax. a few claims have been made along the northeast side of the oak hills, and improvements commenced. the soil yields a good crop of the agricultural products suited to the climate. above the santa anna, upon the eastern side of the willamette, the valley is about twenty miles in average width for ninety miles, to the three forks. in this distance there are many small mountain streams, crossing the valley to the river, all of which are lined with timber, and several of them affording {99} valuable water privileges for such machinery as may be erected, when yankee enterprise shall have settled and improved this desirable portion of our great republic. after leaving the santaam, a prairie commences, of from four to twelve miles in width, which continues up the valley for a day's travel, which i suppose to be about forty miles. the mountains upon the east side of the willamette are covered with timber of quite large growth. in this last prairie has been found some stone coal, near the base of the mountain spurs; but as to quantity or quality i am uninformed. the specimen tried by a blacksmith was by him pronounced to be good. the willamette valley, including the first plateaus of the cascade and coast ranges of mountains, may be said to average a width of about sixty, and a length of about two hundred miles. it is beautifully diversified with timber and prairie. unlike our great prairies east of the rocky mountains, those upon the waters of the pacific are quite small; instead of dull and sluggish streams, to engender miasma to disgust and disease man, those of this valley generally run quite rapidly, freeing the country of such vegetable matter as may fall into them, and are capable of being made subservient to the will and comfort of the human family in propelling machinery. their banks are generally lined with fine groves of timber for purposes of utility, and adding much to please the eye. the willamette itself, throughout its length, has generally a growth of fir and white cedar, averaging from one-fourth to three miles in width, which are valuable both for agricultural and commercial purposes. its banks are generally about twenty feet above the middling stages, yet there are some low ravines, (in the country called _slues_,) which are filled with water during freshets, and at these points the bottoms are overflowed; but not more so than those upon the rivers east of the mississippi. it has been already observed that the soil in these bottoms and in the prairies is very rich; it is a black alluvial deposit of muck and loam; in the timbered portions it is more inclined to be sandy, and the higher ground is of a reddish colored clay and loam. the whole seems to be very productive, especially of wheat, for which it can be safely said, that it is not excelled by any portion of the continent. the yield of this article has frequently been fifty bushels per acre, and in one case dr. white harvested from ten acres an average of over fifty-four {100} bushels to the acre; but the most common crop is from thirty to forty bushels per acre, of fall sowing; and of from twenty to twenty-five bushels, from spring sowing. there is one peculiarity about the wheat, and whether it arises from the climate or variety, i am unable to determine. the straw, instead of being hollow as in the atlantic states, is filled with a medullary substance, (commonly called pith,) which gives it firmness and strength; hence it is rarely that the wheat from wind or rain lodges or falls before harvesting. the straw is about the height of that grown in the states, always bright, the heads upon it are much longer, and filled with large grains, more rounded in their form, than those harvested in the eastern part of the union. i have seen around fields, where a single grain has grown to maturity, forty-two stalks, each of which appeared to have borne a well filled head; for the grains were either removed by birds, or some other cause. as it was november when i arrived in the country, i saw wheat only in its grassy state, except what had escaped the late harvest. the farmers have a white bald wheat, the white bearded, and the red bearded, either of which can be sown in fall or spring, as best suits their convenience, or their necessities demand. that sown in september, october or november, yields the most abundantly; but if sown any time before the middle of may, it will ripen. the time of harvesting is proportioned to the seed time. that which is early sown is ready for the cradle or sickle by the last of june, or the first of july, and the latest about the first of september. in the oregon valley, there are but few rains in the summer months, and as the wheat stands up very well, farmers are generally but little hurried with their harvesting. the emigrants usually arrive in the latter part of the summer or fall, and necessarily first provide a shelter for their families, and then turn their attention to putting in a field of wheat. in doing this, they frequently turn under the sod with the plough one day, the next harrow the ground once, then sow their seed, and after going over it again with a harrow, await the harvest, and not unfrequently gather forty bushels from the acre thus sown. in several instances the second crop has been garnered from the one sowing. when the wheat has stood for cutting until very ripe, and shattered considerably in the gathering, the seed thus scattered over the field has been harrowed under, and yielded twenty bushels to the acre, of {101} good merchantable grain. i was told of an instance where a third crop was aimed at in this way; it yielded but about twelve bushels to an acre, and was of a poor quality. the rust and smut which so often blast the hopes of the farmer, in the old states, are unknown in oregon, and so far there is but very little cheat. harvesting is generally done with cradles, and the grain threshed out with horses, there being no machines for this latter purpose in the territory. the grain of the wheat, though much larger than in the states, has a very thin husk or bran, and in its manufacture in that country during the winter months requires a coarser bolting cloth than in the atlantic states, owing to the dampness of the atmosphere at this season. the farmers already raise a surplus of this commodity, over and above the consumption of the country: but owing to the scarcity of mills to manufacture it, they cannot at all times have it in readiness to supply vessels when they visit the settlements. at the time i left, wheat was worth eighty cents per bushel, and flour three dollars and fifty cents per hundred pounds. the mills above the falls grind for a toll of one-eighth, but at the falls they will exchange for wheat, giving thirty-six pounds of fine flour for an american bushel, and forty pounds for a royal bushel. the weight of a bushel of wheat, (according to quality,) is from sixty to seventy pounds. oats yield an abundant crop, but this grain is seldom sown, as the stock is generally suffered to gather its support by grazing over the plains. peas do well, and are much used in feeding hogs, at the close of their fattening, when taken off of their range of camas and other roots; and it is remarked that this vegetable there is free from the bug or wevil that infests it in the western states. barley is very prolific, and of a large and sound growth; but there is as yet little raised, as the demand for it is quite limited. i saw no rye in the country. buckwheat grew very well, though not much raised. for potatoes oregon is as unequalled, by the states, as it is for wheat. i doubt whether there is any portion of the globe superior to it for the cultivation of this almost indispensable vegetable. i heard of no sweet potatoes, and think there are none in the territory. indian corn is raised to some extent upon the lower bottoms {102} in the valleys, but it is not considered a good corn country. it had yielded forty bushels to the acre; they mostly plant the small eight-rowed yankee corn. the summers are too cool for corn. tobacco has been tried; and although it may be raised to some extent, it is lighter than in kentucky, and more southern latitudes. the climate and soil are admirably adapted to the culture of flax and hemp, and to all other vegetables, which grow with ordinary care, in any of the northern, eastern and middle states. during my travels through the valley, i spent some time with mr. joel walker, a gentleman who had resided several years in california, had made several trips from oregon to the bay of san francisco, and had spent some time in trapping and trading between the willamette valley and the 42d degree of north latitude.[163] from this gentleman, as well as from several others, i learned that the trail near two hundred miles south of oregon city arrives at the california mountains, which is a ridge running from the cascade to the coast range of mountains. with the exception of a few peaks, this ridge is susceptible of easy cultivation, being partly prairie and partly covered with timber. mr. walker doubts not that a good wagon road can be made over this ridge; to cross which requires but a few hours, and brings us into the beautiful country bounded on the east and west by the cascade and coast ranges, the california mountains on the north, and the rogue's river mountains on the south. this district of country, which is only about forty miles wide from east to west, is drained by the umpquah river, and its tributaries, which as in the willamette valley, are skirted with timber; but back from the streams is a prairie country, beautifully alternated with groves of timber. at the mouth of the umpquah, which empties into the pacific about thirty miles from where it leaves this beautiful district of country, the hudson's bay company have a trading post.[164] if we except this, there is no settlement nor claim made on this river or its tributaries. passing rogue's river mountains, the trail enters the valley of the river of that name. this valley is quite similar to that of the umpquah, but perhaps not quite so large.[165] this valley is bounded on the south by the klamet mountain, which is a spur of the cascade and coast mountains. it is high and somewhat difficult to pass over; but it is believed a route may be found that will admit of an easy passage over. it is heavily timbered; and as in {103} the coast range, the timber in many places has died, and a thick growth of underbrush sprung up. south of the klamet mountains spreads out the beautiful valley watered by the klamet river. this valley, although not so well known as that of the willamette, is supposed to be more extensive, and equally susceptible of a high state of cultivation. it is esteemed one of the best portions of oregon.[166] the land is mostly prairie, but is well diversified with timber, and bountifully supplied with spring branches. the indians are more numerous here than in the valley further north, and as in the umpquah and rogue's river valleys, more hostile. there has been very little trading with them; but they not unfrequently attack persons driving cattle through from california to the settlements in oregon; and although none of the drivers have been killed for several years, they have lost numbers of their cattle. before these valleys can be safely settled, posts must be established to protect the inhabitants from the depredations of these merciless savages.[167] a settlement of about a dozen families has been made upon clatsop plains. this is a strip of open land, about a mile in width, extending from the south end of point adams, or clatsop point, at the mouth of the columbia river, about twenty miles along the margin of the ocean, in the direction of cape lookout.[168] it appears to have been formed by the washing of the waters. ridges resembling the waves of the ocean extend from north to south throughout the entire length of the plains. these ridges are from twelve to twenty-five feet high, and in some places not more than fifty feet, but at other points as much as three hundred yards asunder. that along the coast is the highest and least fertile, as it seems to be of more recent formation. the soil is composed of vegetable matter and sand, and produces grass more abundantly than the valleys above; the spray and dampness of the ocean keeping the grass green all the year. the land is not so good for fall wheat as in the upper country, but the settlers raise twenty-five bushels of spring wheat to the acre. i think it better for root crops than the valleys above. in the rear of the plains, or about a mile from the shore, is a body of land heavily timbered with hemlock and spruce, which is tall and straight, and splits freely. near the timber a marsh of some two hundred yards in width extends nearly the entire length of the plains. this marsh is covered with the low kind of cranberries. a stream some ten or twelve yards in width[169] enters the plains {104} at the south end, runs ten or twelve miles north, when it turns to the west, and after passing through two of the ridges, takes a southerly direction and enters the bay that sets up between the plains and cape lookout, not more than ten rods from its entrance into the plains. here a dam is built across the stream, and the claimant is erecting a flouring mill. on these plains the claims are taken half a mile in width on the coast, and extending back two miles; each claimant therefore having a fair proportion of prairie and timber land, besides a glorious cranberry patch. some fifteen miles southeast of cape lookout, stands a peak of the coast range, called saddle mountain; and the cape is a spur or ridge extending from this mountain some two or three miles out into the ocean.[170] around the head of the bay, immediately north of cape lookout, is a body of several thousand acres of timber land. the soil is good, but most of it so heavily timbered that it would require much labour to prepare it for farming. but as the streams from the mountain afford an abundance of water power, it would be an easy matter to manufacture the timber into lumber, for which there is a good market for shipping, and thus make the clearing of the land for cultivation a profitable business. along the coast from cape lookout to the 42d parallel there is much land that can be cultivated; and even the mountains, when cleared of the heavy bodies of timber with which they are clothed, will be good farming land. there is so much pitch in the timber that it burns very freely; sometimes a green standing tree set on fire will all be consumed; so that it is altogether a mistaken idea that the timber lands of the country can never be cultivated. i am fully of the opinion that two-thirds of the country between the willamette valley and the coast, and extending from the columbia river to the forty-second parallel, which includes the coast range of mountains, can be successfully cultivated. this region abounds in valuable cedar, hemlock and fir timber, is well watered, possesses a fertile soil, and being on the coast, it will always have the advantage of a good market; for the statements that soundings cannot be had along the coast, between puget sound and the bay of san francisco, are altogether erroneous. no place along the range would be more than thirty miles from market; and the difficulty of constructing roads over and through this range would be trifling, compared with that of constructing similar works over the alleghanies. {105} the country about cape lookout is inhabited by a tribe of indians called the kilamooks. they are a lazy and filthy set of beings, who live chiefly on fish and berries, of which there is here a great abundance. they have a tradition among them that a long time ago the great spirit became angry with them, set the mountain on fire, destroyed their towns, turned their _tiye_ (chief) and _tilicums_ (people) into stone, and cast them in the ocean outside of cape lookout; that the great spirit becoming appeased, removed the fire to saddle mountain, and subsequently to the _sawhle illahe_ (high mountain,) or mount regnier, as it is called by the whites, on the north side of the columbia river.[171] in the ocean about a mile west of cape lookout, is to be seen at high water a solitary rock, which they call kilamook's head, after the chief of the tribe. around this rock for half a mile in every direction may be seen at low water divers other rocks, which are called the _tilicums_, (people) of the tribe. at low water is to be seen a cavity passing quite through kilamook's head, giving the rock the appearance of a solid stone arch.[172] in support of this tradition, the appearance of the promontory of cape lookout indicates that it may be the remains of an extinct volcano; and on saddle mountain there is an ancient crater, several hundred feet deep; while mount regnier is still a volcano. those who have visited the rocky cliffs of cape lookout, report that there is some singular carving upon the ledges, resembling more the hieroglyphics of the chinese, than any thing they have seen elsewhere. these indians have another tradition, that five white men, or, as they call them, pale faces, came ashore on this point of rock, and buried something in the cliffs, which have since fallen down and buried the article deep in the rocks; that these pale faces took off the indian women, and raised a nation of people, who still inhabit the region to the south. and i have met with travelers who say they have seen a race of people in that region, whose appearance would seem to indicate that they may have some european blood in their veins. a reasonable conjecture is, that a vessel may have been cast away upon the coast, and that these five men escaped to cape lookout. another circumstance renders it probable that such might have been the case. frequently, after a long and heavy south westerly storm, large cakes of beeswax, from two to four inches thick and from twelve to eighteen inches in diameter, {106} are found along the beach, near the south end of clatsop plains. the cakes when found are covered with a kind of sea-moss, and small shells adhere to them, indicating that they have been a long time under water.[173] in or about saddle mountain rises a stream called skipenoin's river, which, though extremely crooked, runs nearly north, and empties into the western side of young's bay, which, it will be remembered, is a large body of water extending south from the columbia river between point adams and astoria. between this river and clatsop plains is a strip of thick spruce and hemlock, with several low marshes. the landing for clatsop plains is about two miles up the river; which it is rather difficult to follow, as there are many _slues_ putting in from either side, of equal width with the main stream. from the bay a low marshy bottom extends up to the landing, covered with rushes and sea-grass. this bottom is overflowed opposite the landing at high water. between the landing and clatsop plains is a lake one or two miles in length, which has its outlet into the bay. its banks are high, and covered with spruce. near this is a stream, from the mouth of which it is about two or three miles along the bay to the creek upon which lewis and clark wintered; and thence about three and a half miles to the head of the bay where young's river enters.[174] young's river is a stream about one hundred and fifty yards in width, and is navigable for steamboats and small sloops to the forks, six or seven miles up. about seven miles further up are the "falls," where the water pitches over a ledge of rocks, making a fall of about sixty feet. around the falls the mountains are covered with heavy timber. near the forks the river receives from the east a small stream, upon which a machine for making shingles has been erected; and as the timber in the vicinity is good for shingles, which can be readily sold for the sandwich islands market, the owners expect to do a profitable business. young's river rises in or near saddle mountain.[175] from the mouth of this river it is about eight or ten miles, around the point which forms on the east young's bay, to astoria, or fort george, as it is called by the hudson's bay company. this stands on the south side of the columbia river, about sixteen miles from its mouth.[176] the columbia river and its location have been so often described, that it is hardly necessary for me to go into details. but as this work is designed to be afforded so low as to place {107} it within the reach of every one, and may fall into the hands of many whose means will not enable them to procure expensive works on oregon, it may not be amiss to say something about that noble stream, which discharges its waters into the ocean between cape disappointment on the north, and point adams or clatsop point on the south, and in latitude about 46° 15['] north. at its mouth the columbia is narrowed to about six miles in width by cape disappointment extending in a south west direction far out into the stream, the cape being washed on the west side by the ocean. cape disappointment and chinook point, a few miles above it, form baker's bay, which affords good anchorage for vessels as soon as they round the point.[177] this cape presents a rocky shore, is quite high, and covered with timber. an american had taken it as his land claim, according to the laws of the territory; but during the last winter, he sold his right to mr. ogden, then one of the principal factors, but now governor of the hudson's bay company in oregon, for one thousand dollars. a fortification on this cape would command the entrance of the river by the northern channel, which is immediately around the point, and as it is said, not more than half a mile in width.[178] point adams, the southern cape of the columbia, is a little above cape disappointment. it is low and sandy, and continues a sand ridge four miles to clatsop plains. this point, and the high ground at astoria, as before stated, form young's bay, near which the ridge is covered with timber. near point adams is the southern channel or entrance into the columbia, which is thought to be preferable to the northern channel; and i think either of them much better than heretofore represented. in each there is a sufficiency of water to float any sized vessel. with the advantages of light houses, buoys, and skillful pilots, which the increasing commerce of the country must soon secure, the harbor at the mouth of the columbia would compare well with those on the atlantic coast; and i may say that it would be superior to many of them. as we ascend, astoria occupies probably the first suitable site for a town. it stands upon a gradual slope, which extends from the bank of the river up to the mountain. the timber was once taken off of some forty or fifty acres here, which, except about twenty acres, has since been suffered to grow up again, and it is now a thicket of spruce and briars. five or six old dilapidated buildings, which are occupied by the hudson's bay company, who have a small stock of goods for trading {108} with the natives, and a few old looking lodges upon the bank of the river, filled with greasy, filthy indians, constitute astoria.[179] the person in charge of this establishment, whose name is birney, seems to be a distant, haughty, sulky fellow, whose demeanor and looks belie the character generally given to a mountaineer or backwoodsman.[180] as evidence of his real character, i will state one circumstance as it was related to me by persons residing in the vicinity of the place. during the summer or fall, while the british war vessel modesté was lying at astoria, one of the sailors fell overboard and was drowned. search was made, but his body could not be found. several weeks afterwards the body of a man was found upon the shore, a short distance above astoria. information was immediately communicated to birney, who promised to give the body a decent burial. about two weeks after this, some indians travelling along the shore, attracted to the place by a disagreeable scent and the number of buzzards collected together, discovered the body of a man much mangled, and in a state of putrefaction. they informed two white men, trask, and duncan,[181] who immediately made enquiry as to whether the body found on the beach previously had been buried, and received for answer from birney, _that it was no countryman of his, but it was likely one of the late emigrants from the states that had been drowned at the cascade falls_. trask and duncan proceeded to bury the body, and found it to be in the garb of a british sailor or marine. this, to say the least, was carrying national prejudice a little too far. near astoria, and along the river, several claims have been taken, and commencements made at improving. anchorage may be had near the shore. three miles above astoria is tongue point,[182] a narrow rocky ridge some three hundred feet high, putting out about a mile into the river; but at the neck it is low and not more than two hundred yards across. the two channels of the river unite below this point. opposite is gray's bay, a large, beautiful sheet of water, of sufficient depth to float ships. above and on the south side of the river is swan bay, a large sheet of water, though shallow, presenting numerous bars at low tides. a deep channel has been cut through this bay, which affords an entrance into a stream that comes in from the south, about two hundred yards wide, and from appearance is navigable some distance up.[183] in this vicinity the whole country is covered with heavy timber. in {109} the indentation in the mountain range south of the river, there seems to be large scopes of good rich land, which would produce well if cleared of timber. from tongue point across gray's bay to catalamet point is about sixteen miles. small craft are frequently compelled to run the southern channel, inside of a cluster of islands called catalamet islands, which passes "old catalamet town," as it is called, a point where once stood an indian village. four or five claims have been taken here, but none of them have been improved. a short distance from the river are several beautiful prairies, surrounded with heavy timber. a small stream enters here, which affords water power a short distance up.[184] a few miles above old catalamet town, near the top of the bluff, about four hundred yards from the columbia, stands wilson & hunt's saw mill, which is driven by a small stream coming down from the mountain; after leaving the wheel the stream falls about sixty feet, striking tide water below. a sluice or platform is so constructed as to convey the lumber from the mill to the level below, where it is loaded into boats and run out to the river, where it can be loaded into vessels. upon our arrival at this place, the bark toulon was lying at anchor, about fifty yards from the shore, taking in a cargo of lumber for the sandwich islands, to which she expected to sail in a few days. this was early in january, but from some cause she did not leave the mouth of the river until the last of february.[185] in the vicinity of the mill there is some better timber than i have seen in any other part of the country. the largest trees are about seven feet in diameter, and nearly three hundred feet high; the usual size, however, is from eighteen inches to three feet diameter, and about two hundred feet high. the country slopes up from the mill gradually, for several miles, and is susceptible of easy cultivation; the soil is somewhat sandy, and has the appearance of being good. in leaving this place, we struck directly across the river, which is here over two miles wide. upon the north side, almost opposite to the mill, is a claim held by birney, of astoria, who has made an effort at improvement by cutting timber and raising the logs of a cabin. at this place a rocky bluff commences and continues up the river for ten miles, over which a great many beautiful waterfalls leap into the columbia. there is one sheet of water ten or twelve feet wide, which plunges over a precipitous cliff two hundred feet into the river, {110} striking the water about thirty feet from the base of the rock, where there is sufficient depth to float vessels of large size. at the distance of eight or ten miles above the mill, on the south side of the river, there is an indentation in the mountain to the south, and a bend in the river to the north, which forms a body of bottom land several miles in width, and some ten or twelve miles long, the greater part of which, except a strip varying from a quarter to half a mile in width, next to the river, is flooded during high tides. this strip is covered with white oak and cottonwood timber. the remainder of the bottom is prairie, with occasional dry ridges running through it, and the whole of it covered with grass. by throwing up levees, as is done upon the atlantic coast, most of these fine lands might be cultivated. at the extreme southern point of the elbow, there comes in a stream, the size of which was not ascertained, but from appearances it is of sufficient size to propel a considerable amount of machinery. there are several islands in the river opposite the lower point of this bottom, and at the northern angle the columbia is not more than three-fourths of a mile wide. this is called oak point, and holds out good inducements for a settlement. there is an indian village half a mile below the point; and opposite, upon the northern side of the river, a good millstream, the falls being near the river, and the mountain covered with timber.[186] immediately above the point, the river spreads out to one and a half or two miles in width, and having several islands, portions of which are covered with cottonwood, oak and ash timber, the remainder being nearly all prairie. from oak point up to vancouver, the scenery very much resembles that along the hudson river through the catskill mountains, but much more grand, as the cascade range of mountains, and many snowcapped peaks, are in view. some portions of the way the shore is high rugged cliffs of rocks, at others indentations in the mountain leave bottoms, from a quarter to three miles wide, which are mostly covered with timber. from the lower mouth of the willamette to fort vancouver, the shores are lined with cottonwood timber, and upon the south side, as far up as the mouth of sandy, or quicksand river, which comes in at the western base of the cascade range. but few claims have as yet been taken along the columbia, but the fishing and lumbering advantages which this part of the country possesses over many others, holds out great inducements to settlers. {111} from fort vancouver, for several miles down upon the north side, the country is sufficiently level to make good farming land; and the hudson's bay company, or members of the company, have extensive farms, with large herds of cattle. fort vancouver is one of the most beautiful sites for a town upon the columbia. it is about ninety miles from the ocean, and upon the north side of the river. large vessels can come up this far. the banks of the river are here about twenty-five feet high. much of the bottom land about the fort is inclined to be gravelly, but produces well.[187] a party consisting of nine persons, in two row-boats, started from oregon city on the 24th of december, for fort vancouver, and arrived there in the afternoon of the 25th. in our party was colonel m'clure, formerly of indiana, and who had been a member of the oregon legislature for two years.[188] as soon as we landed, he made his way to the fort, which is about four hundred yards from the shore, with the view of obtaining quarters for the party. he soon returned and conducted us to our lodgings, which were in an old cooper's shop, or rather shed, near the river. before starting we had prepared ourselves with provisions, and a few cooking utensils. we set to work, and although the wind and rain made it unpleasant, we soon had a comfortable meal in readiness, and we made good use of the time until it was devoured. this was holyday with the servants of the hudson's bay company, and such _ranting_ and frolicking has perhaps seldom been seen among the sons of men. some were engaged in gambling, some singing, some running horses, many promenading on the river shore, and others on the large green prairie above the fort. h. b. majesty's ship of war modesté was lying at anchor about fifty yards from the shore.[189] the sailors also seemed to be enjoying the holydays--many of them were on shore promenading, and casting _sheep's eyes_ at the fair native damsels as they strolled from wigwam to hut, and from hut to wigwam, intent upon seeking for themselves the greatest amount of enjoyment. at night a party was given on board the ship, and judging from the noise kept up until ten at night, they were a jolly set of fellows. about this time a boat came ashore from the ship, with a few land lubbers most gloriously drunk. one of them fell out of the boat, and his comrades were barely able to pull him ashore. they passed our shop, cursing their stars for this ill luck. we wrapped ourselves in our blankets, and lay down upon {112} a pile of staves. the rain was falling gently, and we were soon asleep. in the after part of the night, several of us were aroused by a strange noise among the staves. in the darkness we discovered some objects near us, which we supposed to be hogs. we hissed and hallooed at them, to scare them away. they commenced grunting, and waddled off, and all was again quiet, and remained so until daylight; but when we arose in the morning, we found ourselves minus one wagon sheet, which we had brought along for a sail, our tin kettle, eighteen or twenty pounds of meat, a butcher knife and scabbard, one fur cap, and several other articles, all of which had been stolen by the indians, who had so exactly imitated the manoeuvres of a gang of hogs, as entirely to deceive us. after breakfast we visited the fort, where we had an introduction to dr. mclaughlin, the governor of the hudson's bay company. he appears to be much of a gentleman, and invited us to remain during the day; but as we were upon an excursion down the river, we only remained to make a few purchases, which being accomplished, we left the place. as before stated, the fort stands upon the north bank of the columbia, six miles above the upper mouth of the willamette, and about four hundred yards from the shore. the principal buildings are included within a stockade of logs, set up endwise close together, and about twelve feet high; the lower ends of the timbers being sunk about four feet in the ground. a notch is cut out of each log near the top and bottom, into which a girth is fitted, and mortised into a large log at each end, the whole being trenailed to this girth. i judge the area contains about four acres. the first thing that strikes a person forcibly upon entering one of the principal gates upon the south, is two large cannons, planted one upon either side of the walk leading to the governor's house, immediately in front of the entrance. many of the buildings are large and commodious, and fitted up for an extensive business, others are old fashioned looking concerns, and much dilapidated. east of the fort and along the river bank there is a grassy prairie, extending up for about three miles; it has been cultivated, but an unusually high freshet in the river washed the fence away, and it has since remained without cultivation. the soil is gravelly. north of this, and extending down nearly even with the fort there is a handsome farm, under good cultivation. north of the fort there is a beautiful orchard, and an extensive garden, with several large blocks of buildings. below the {113} fort, and extending from the river for half a mile north, is the village; the inhabitants of which are a mongrel race, consisting of english, french, canadians, indians of different nations, and half breeds, all in the employ of the company. the buildings are as various in form, as are the characteristics of their inmates. as yet there are but few americans settled upon the north side of the columbia. there seems to have been an effort upon the part of the hudson's bay company, to impress the american people with an idea that the entire country north of the river was unfit for cultivation. not only was this statement made to emigrants, but it was heralded forth to the whole world; and as much of the country along the columbia corroborated this statement, no effort was made to disprove it. americans visiting that country being so well pleased with the attentions paid them by the hudson's bay company, took for granted their statements, without examining for themselves, and have asserted it at home, in accordance with british interests, and this i fear has had its influence in the settlement of this question. for any one acquainted with the character of the claims of the respective governments can but admit, that greater privileges have been granted to great britain than that government had any right to expect, or than the justice of our claim would allow. undoubtedly, the largest part of good agricultural country is south of 49° north latitude, but there is a great deal of excellent land north of that line. but little of it has been explored by americans, and we have taken only the statements of british subjects, and upon their authority, the question between the two governments was settled. but as we have proven by actual examination the incorrectness of their statements in relation to the country between the columbia and the 49th degree north latitude, we may reasonably infer that they are also incorrect in relation to the remainder of the country north. that the general features of the country north of the columbia river are rough and mountainous, is admitted; and the same may be said in relation to the country south of it; but that it is barren and sterile, and unfit for cultivation, is denied. the country upon the north side of the columbia abounds with beautiful valleys of rich soil, of prairie and timbered lands, well watered, and adapted to the growth of all the grains raised in the northern, middle, and western states, with superior advantages for grazing; never failing resources for timber {114} and fish; and its proximity to one of the best harbors in the world, renders it one of the most desirable and important sections upon the pacific coast. frazer's river, with its numerous tributaries, will afford a settlement which will compare well with england itself. vancouver's island, an excellent body of land, is equal to england in point of size, fertility of soil, climate, and everything that would constitute great national wealth. and besides these, there are undoubtedly extensive valleys north of frazer's river, which will compare well with it; but we know nothing positively upon this subject.[190] the excellent harbors of puget's sound, with its many advantages, and the delightful country about it, are sufficient to induce capitalists to look that way. this will probably be the principal port upon the coast. here will doubtless be our navy yard and shipping stores. it is thought by many that an easy communication can be had between the sound and the middle region, by striking the columbia above fort wallawalla. if this can be effected, it will lessen the distance materially from the settlement upon the upper columbia to a seaport town; and as the navigation of that river, between the cascade and lewis's fork is attended with great danger and difficulty, a route through to the sound in this quarter would be very desirable.[191] that it can be accomplished there is but little doubt. a stream emptying into the ocean between the columbia and the sound, called shahales, affords a very good harbor, which is called gray's harbor.[192] up this stream there is a country suitable for an extensive settlement. like most other valleys in the country it is diversified with prairie and timbered land, and well watered. no claims as yet have been taken in this valley. there are two peaks upon the north side of the river, which remain covered with snow the whole year round. one is called mount st. helen, and stands north east of fort vancouver, and distant perhaps forty-five or fifty miles. the other is mount regnier, and stands some thirty-five miles from st. helen, in a northerly direction. this is said to be a volcano. the distance from fort vancouver to puget's sound, in a direct line, cannot exceed ninety miles; but the high mountains between render the route somewhat difficult, and the distance necessarily traveled would be considerably increased. about forty miles below fort vancouver there comes in a {115} stream called cowlitz; twenty-five miles up this stream there is a french settlement of about twenty families. like those in the settlement upon the east side of the willamette river, they have served out their term of years in the h. b. company, have taken claims, and become an industrious and thriving population.[193] * * * * * the people in oregon have adopted a code of laws for their government, until such time as the united states shall extend jurisdiction over them. the powers of the government are divided into three distinct departments--the legislative, executive, and judicial. the legislative department is to consist of not less than _thirteen_ members, nor more than _sixty-one_; the number not to be increased more than _five_ in any one year. the members are elected annually; each district electing a number proportionate to its population. the executive power is vested in one person, who is elected by the qualified voters of the territory, and holds his office for the term of two years. the judicial power is vested in a supreme court, and such inferior courts of law, equity, and arbitration, as may by law from time to time be established. the supreme court consists of one judge, elected by the legislature, and holds his office four years. they have adopted the iowa code of laws.[194] oregon is now divided into eight counties, viz: lewis, vancouver, clatsop, yam-hill, polk, quality, clackamis, and shampoic.[195] lewis county includes that portion of country about puget's sound;--vancouver, that along the northern side of the columbia. these two counties comprise all the territory north of the columbia river. clatsop county includes that part of the country west of the centre of the coast range of mountains, and from the river south, to yam-hill county, and of course includes astoria, clatsop plains, &c. quality county includes the territory bounded on the north by the columbia, on the east by the willamette, on the south by yam-hill, and on the west by clatsop county. yam-hill county is bounded on the north by quality and clatsop, (the line being about fifteen miles south of oregon city,) on the east by the willamette river, on the south by polk county, and on the west by the ocean. {116} polk county is bounded on the north by yam-hill county, on the east by the willamette, on the south by the california line, and on the west by the pacific ocean. clackamis county is bounded on the north by the columbia, on the east by the rocky mountains, on the south by shampoic county, and on the west by the willamette, including oregon city. shampoic county is bounded on the north by clackamis county, on the east by the rocky mountains, on the south by california, and on the west by the willamette. the country will, without doubt, be divided into at least three states. one state will include all the country north of the columbia river. nature has marked out the boundaries. another state will include all that country south of the columbia river to the california line, and west of the cascade range of mountains. this country, however, is large enough to form two states. the country east of the cascade range, extending to the rocky mountains, and between the columbia and california, would make another state. this would include more territory than all the remainder; but it would cover all that vast barren region of country which can never be inhabited by the white man. the western portion of this section is fertile. the line doubtless would be established between, leaving the eastern portion as oregon territory, for future generations to dispose of. the country now contains over six thousand white inhabitants; and the emigration this year, over land, will be about seventeen hundred souls, and that by water will probably equal it, which will increase the number to near ten thousand. it may be a safe calculation to set down the number for the first of january, 1847, at twelve thousand souls. the settlers are labouring under great disadvantages on account of not being able to obtain a sufficient amount of farming implements. the early settlers were supplied at the hudson bay company's store, and at prices much less than those now charged for the same articles. at that time the supply was equal to the demand; but since the tide of emigration has turned so strongly to this region, the demand is much greater than the supply. this may be said of almost every kind of goods or merchandise. the supply of goods in the hands of the american merchants has been very limited, being the remnant of cargoes shipped round upon the coast, more for the {117} purpose of treating with the indians, than with the cultivators of the soil. great complaints have been made by the merchants trading in that quarter, that they were not able to compete with the hudson bay company; and this is the cry even at home; but the fact is, the prices were much lower before these american merchants went into the country than they now are. their mode of dealing is to ask whatever their avarice demands, and the necessities of the purchaser will bear. and not being satisfied with an open field, they have petitioned the hudson bay company to put a higher price upon their goods, as they were selling lower than the american merchants wished to sell. in accordance with this request, the h. b. company raised the price of goods _when sold to an american_, but sold them at the old prices to british subjects. this arrangement was continued for two years; but an american can now purchase at the fort as cheap as any one. these facts i obtained from various sources, and when apprised of the prices of goods in that country, they are not so hard to be believed. i paid for a pair of _stoga_ shoes, made in one of the eastern states, and a very common article, four dollars and _fifty_ cents; for a common coarse cotton flag handkerchief, which can be had in cincinnati for five or ten cents, fifty cents. the price of calico ranges from thirty-one to eighty-seven and a half cents a yard; common red flannel one dollar and fifty cents per yard; a box of two hundred and fifty percussion caps, two dollars and fifty cents; coarse boots, eastern made, six to eight dollars; calfskin from ten to twelve dollars; coarse half hose, one dollar; dry goods generally ranging with the above prices. iron was selling at twelve and a half cents per pound. tools of all kinds are very high; so that whatever may be said against the company, for putting down the prices to destroy competition by breaking up other merchants, cannot be "sustained by the facts of the case." that they prevent them from raising the prices there is no doubt, and if the american merchants had the field, clear of competition, the prices would be double what they now are. they have not capital to enable them to keep up a supply, nor to purchase the surplus of the country. the hudson bay company are the only purchasers to any extent, for there are no others who have the necessary machinery to manufacture wheat, which is the staple of the country at present. the american merchants buy a few fish, {118} hides, and lumber; but in such limited quantities as to be of very little advantage to the country. a few american merchants, with a little capital, would give an impulse to trade, encourage the settlers, make it a profitable business to themselves, and add much to the character of the country. there is scarcely any branch of business that might not be carried on successfully in oregon. flouring mills, saw-mills, carding machines, fulling and cloth dying, tin shops, potteries, tanyards, &c., &c., would all be profitable; and in truth they are all much needed in the country. the price of a flour barrel is one dollar; that of common split-bottom chairs twenty-four dollars per dozen; a common dining table without varnish, fourteen dollars; half soling a pair of shoes or boots, two dollars; cutting and splitting rails, one dollar and twenty-five cents per hundred; eighteen inch shingles, four dollars and fifty cents per thousand; cutting cord wood, from seventy-five cents to one dollar per cord; carpenter's wages from two to three dollars per day; laborer's from one to two dollars per day; plough irons fifty cents per pound; stocking a plough, from four to six dollars. wheat, eighty cents per bushel; potatoes fifty cents; corn sixty-two and a half cents; oats fifty cents; beef four to six cents per pound; pickled salmon by the barrel, nine to twelve dollars for shipment; work cattle are from seventy-five to one hundred dollars per yoke; cows from twenty-five to fifty dollars each; american work horses from one hundred and fifty to two hundred dollars. i have never heard of any sheep being sold, but presume they would bring from five to ten dollars. a tailor will charge from six to twelve dollars for making a dress coat. hogs are high, though there seems to be plenty of them in the country. the common kinds of poultry are plenty. it is a singular fact that the honey bee is not found in the oregon territory, neither wild nor domesticated. beef hides are two dollars each; a chopping axe from four and a half to six dollars; a drawing knife, three to five dollars; hand-saws, six dollars; crosscut saws, eight to twelve dollars; mill-saws, twenty-five dollars. there is but little hollow ware in the country. no stationery of any kind could be had when i was there. the people are in great need of school books; some sections being destitute of schools in consequence of not being able to procure books. good teachers are also much needed. i had expected to find the winters much more severe than they turned out to be. i had no thermometer, and no means {119} of ascertaining the degrees of heat and cold, but i kept an account of the wet and dry weather, cloudy, clear, &c., &c., commencing on the first day of november and ending on the fifth of march, which was the day i started on my return to the united states. the 1st and 2d days of november were clear; 3d rainy; then clear until the 11th; cloudy until the 13th. then cloudy, with slight showers of rain until the 20th; 21st and 22nd clear; 23d rainy; 24th and 25th were cloudy, but no rain; the weather was then clear until the 29th, when it again clouded up. 30th of november and first of december were cloudy; 2d and 3rd clear, with frosty nights. on the 4th a misty rain; 5th and 6th were cloudy; from 7th to 10th clear and cool, with frost every night. on the 11th it rained nearly all day, and on the 12th about half the day. 13th and 14th were cloudy. from the 15th to 22d clear and pleasant, with frosty nights; it thawed through the day in the sun all that froze at night, but in the shade remained frozen. from the 22d to 24th cloudy, with showers of drizzling rain; 25th, 26th and 27th rain nearly all the time, but not very copiously; the mornings were foggy. the 28th and 29th were clear, but very foggy in the forepart of the day; 30th and 31st rain about half the time. from the 1st to 3d of january it was squally, with frequent showers of rain; 4th cloudy, but no rain; 5th rained nearly all day. from the 6th to the 12th, clear and pleasant, being slightly foggy in the mornings; from 13th to 17th rained about half each day, and nearly all the night; 18th and 19th, cloudy without rain. the 20th and 21st, slight rain nearly all the time; 22d was cloudy; 23d and 24th, rain about half of each day; 25th rained all day, 26th cloudy, without rain, 27th was rainy, some heavy showers; 28th was clear; 29th, 30th and 31st, were showery and blustering, raining about half the time, and foggy. the 1st of february was clear; 2d cloudy, 3d rainy; 4th and 5th were a little cloudy, but pleasant; 6th and 7th, a few slight showers; 8th and 9th rainy and quite cool; snow was seen on the lower peaks of the coast range of mountains, but none in the valley. the 10th was cloudy, at night a little frost; 11th was rainy; 12th and 13th rained all the time; 14th and 15th were nearly clear, with light frosts. the weather remained clear until the 23rd, with light frosts, but not cold enough to freeze the ground; 24th cloudy; 25th clear; 26th, 27th, and 28th rained all the time. {120} first of march, rained half the day; 2d cloudy, 3d rained all day; 4th cloudy, 5th was showery--making in all about twenty days that it rained nearly all the day, and about forty days that were clear, or nearly so; the remainder of the days were cloudy and showery. a number of the days set down as rainy, a person with a blanket coat could have worked out all the day without having been wet. much of the time it rained during the night, when it was clear through the day. i should think that two-thirds of the rain fell during the night. no snow fell in the valleys, nor were there frosts more than _fifteen_ nights. ice never formed much over a quarter of an inch in thickness. the little streams and "_swales_" sometimes rise so high as to make it difficult to get about for a few days; but they are short, and soon run down. but little labour has yet been bestowed on the public roads. the willamette river is the highway upon which nearly all the traveling is done, and upon which nearly all the products of the country are conveyed. the numerous streams can be easily bridged, and when this is done, there will be but little difficulty in traveling at any period of the year. upon the 5th of march, 1846, i set out on my return to the states. about one week previous, a party of seven persons had also set out on their return, and we expected to overtake them at dr. whitman's station. a few head of lame cattle had been left the preceding fall with a man named craig, who resided near spalding's mission;[196] and as the indians in that vicinity had large bands of horses, which they wished to trade for cattle, i purchased several head of cattle to trade for horses, as also did others of the party. i, however, had purchased two horses and one mule; which, with several horses and mules belonging to the party, had been taken ahead on the 2d of the month, with the view of crossing the columbia river at fort vancouver, going up the valley of the columbia, and recrossing below the dalles. by this route we would avoid the deep snow on the cascade mountains. we loaded our effects on board a boat which we had bought for that purpose, and at two o'clock p.m. shoved off; and although anxious to be on the way back, yet i left the place with considerable reluctance. i had found the people of oregon kind and hospitable, and my acquaintance with them had been of the most friendly character. many of the persons who had traveled through to oregon with me, resided at oregon {121} city. attachments had been formed upon the road, which when about to leave, seemed like parting with our own families. we were about to retrace the long and dreary journey which the year before had been performed, and again to brave the privations and dangers incident to such a journey. traveling as we expected to do on horseback, we could not take those conveniences so necessary for comfort, as when accompanied with wagons; but we bade adieu to the good people of oregon, and rapidly floated down the willamette to the town of portland, twelve miles below the falls. it commenced raining quite fast, and we hove to, and procured quarters with mr. bell, one of the emigrants who had recently settled at this place. this will probably be a town of some consequence, as it occupies a handsome site, and is at the head of ship navigation. mr. petigrew[197] of new york is the proprietor. it continued raining nearly all night. in the morning the rain abated; we again took the oars, and in two hours and a half reached the town of linnton. here are a few log huts, erected among the heavy timber; but it will not, probably, ever be much of a town.[198] a great portion of the emigrants traveling down the columbia land at this place, and take the road to quality plains, which are about twenty-five miles distant; but the road is a bad one. at 3 o'clock p. m. we arrived at fort vancouver, where we made a few purchases to complete our outfit, and then rowed up the river two miles and a half, and encamped. here we found the party with our horses. the indians had stolen two horses, several trail ropes, &c. the day was showery. on the 7th we ascended about eighteen miles, to the mouth of a stream coming in upon the north side of the river, about one hundred yards in width, having its source in mount st. helen. here a commencement of a settlement had been made by simmons, parker, and others, and about a dozen buildings erected, but were now abandoned on account of its being subject to be overflowed by the annual high freshets of the columbia river.[199] the soil is good, with several patches of prairie. on our way we passed the grist and saw mills of the hudson's bay company. they stand immediately upon the bank of the columbia. the water power is obtained from small mountain streams. the mills are six and eight miles above the fort. several islands in the river might be _leveed_ and successfully cultivated. the day was cloudy, with occasional showers of rain, and some hail. {122} on the 8th we advanced sixteen or eighteen miles. for the greater part of the way, the river is hemmed in by high, craggy, rocky cliffs. at a point, called cape horn, the rocks project over the stream, presenting a huge mass of black looking rocks of several hundred feet in height.[200] some of them seem to have broken and slid from their former position, and now stand in detached columns erect in the deep stream, presenting a grand and terrific appearance. at several points, streams of water were tumbling more than a thousand feet from crag to crag, and falling into the river in broken sheets. upon one of these columns stands a solitary pine tree, and upon the topmost branch sat a large bald-headed eagle. we rowed nearly under it, when one of our men took his rifle and fired, and down came the eagle, striking the water not more than ten feet from the boat. a wing had been broken, and we dispatched him with our oars; he measured over seven feet from tip to tip of the wings. round this point the water is sometimes very rough. boats have been compelled to lay to, for two weeks, on account of the roughness of the water. the day was clear. upon the 9th we progressed about ten miles. seven miles brought us to the foot of the rapids, called the cascade falls, and here for five miles the river is hemmed in and contracted to not more than three hundred yards in width, and runs with tremendous velocity.[201] we were compelled to _cordelle_ our boat, and sometimes lift it over the rocks for several rods. it is not easy to form an idea of the difficulties to be encountered, in ascending this rapid. late in the evening we encamped, after a day of hard work in wading, pulling and lifting. it rained nearly all night. on the 10th we arrived at the head of the portage. three times we were compelled to unload our boat, and carry our effects over the rocks along the shore; and at the main falls the distance of the portage is nearly one mile. at night we had completed the portage, and were all safe above the falls. at the foot of the rapids we met several families of emigrants, who had been wintering at the dalles. one of them had traveled the most of the way with us, but being unwilling to travel as fast as we wished, had not arrived in time to get through before winter set in. in this family was a young woman, who so captivated one of our party, that he turned back with them. on the 11th we made but about eight miles; the wind causing {123} a swell that rendered boating dangerous. the day was clear, and at night there was a hard frost. we progressed twelve or fourteen miles on the 12th; the day was cloudy. here we had designed crossing the river with our horses. the morning of the 13th was too windy to swim our horses over. we attempted to take them up the north side of the river; but after clambering about three miles, we were compelled to halt, the cliffs being so abrupt that we were unable to pass them with horses. we remained at this place through the day. on the morning of the 14th the wind had so abated that we could swim our animals. we commenced by taking four at a time; two upon each side of the boat, with four men rowing. in this manner by ten o'clock a. m., all had crossed. the water was very cold. the width of the river at this place, is more than a mile. the party with the horses then took the trail, and we saw no more of them, until we arrived at the dalles, which we reached on the 15th. here we found five of the party who had started a week in advance of us. two of their company had gone on to whitman's station. we sold our boat to the missionaries, and remained here until the morning of the 19th, endeavoring to hire and buy horses to pack our effects to dr. whitman's. there were hundreds of horses belonging to the indians, but their owners knew our situation, and wished to extort a high price from us. we so arranged our effects as to pack them on the mules and horses we had, and we ourselves traveled on foot. on the evening of the 18th, we packed up and proceeded two miles, when we encamped. two indians came and encamped with us. in the night our mules began to show signs that a thief was approaching. the guard apprised us of it, and we prepared our arms. our two indian friends seeing that we were prepared to chastise thieves, roused up and commenced running around the camp, and hallooing most lustily; probably to give warning that it was dangerous to approach, as they soon disappeared. during the day we had seen some sport. as we were nearly all _green_ in the business of packing, and many of our animals were quite wild, we frequently had running and kicking "sprees," scattering the contents of our packs over the prairie, and in some cases damaging and losing them. in one instance, while traveling along a narrow, winding path upon the side of {124} a bluff, a pack upon a mule's back became loose; the mule commenced kicking, and the pack, saddle and all, rolled off, and as the trail rope was tied fast to the mule's neck, and then around the pack, it dragged the mule after it. the bank for six or eight hundred feet was so steep that a man could scarcely stand upright. the mule was sometimes ahead of the pack, at others the pack was ahead of the mule. at length, after tumbling about one thousand feet, to near a perpendicular ledge of rocks, they stopped. six feet farther would have plunged them over a cliff of two hundred feet, into the river. we arrived at and crossed falls river, receiving no other damage than wetting a few of our packs.[202] we encamped two miles above falls river, having traveled about sixteen miles. the weather was clear and warm. we traveled leisurely along, nothing remarkable occurring; but as some of the party were unaccustomed to walking, they soon showed signs of fatigue and sore feet. we were often visited by a set of half-starved and naked indians. on the 26th we reached fort wallawalla, or fort nez percés, as it is sometimes called. this fort stands upon the east side of the columbia, and upon the north bank of the wallawalla river. we went about three fourths of a mile up the wallawalla river, and encamped. near us was a village of the wallawalla indians, with their principal chief.[203] this old chief was not very friendly to americans. the season before, a party of the wallawallas had visited california, by invitation of capt. suter; and whilst there, a difficulty arose about some horses, and the son of the old chief was killed in the fort. the indians left immediately, and as suter claimed to be an american, the chief's feelings were excited against all americans. he had showed hostile demonstrations against a party of americans the summer previous; and when we arrived, we were told that he was surly, and not disposed to be friendly. the grazing about the camp was poor, and we sent a few men with the animals to the hills, three miles distant, to graze. near night we observed quite a stir among the indians. we gave a signal to drive in the horses; they soon came in, and we picketed them near the camp. as soon as it was dark the indians commenced singing and dancing, accompanied with an instrument similar to a drum, and giving most hideous yells, running to and fro. we began to suspect that they meditated an attack upon our camp; and we accordingly prepared to meet them by building a fortification of {125} our baggage, and posting a strong guard. we remained in this position until daylight, when we packed up, and traveled up the wallawalla eight or ten miles, when we stopped, cooked breakfast, and allowed our animals to graze. before starting, the old chief and a few of his principal men made us a visit. they appeared friendly, and wished to trade. we gave them some provisions, and made them a few presents of tobacco, pipes, &c. after shooting at a mark with the chief, to convince him of our skill, we conversed on various subjects, among which the death of his son was mentioned, and he expressed his determination to go to california this season. we parted, he and his people to their village, and we upon our route to dr. whitman's. we were here joined by a party of nez percé indians; among whom were four of their principal chiefs. ellis the great chief was with them. he speaks very good english, and is quite intelligent. he was educated at the hudson's bay company's school, on red river.[204] they traveled and encamped with us, making heavy drafts upon our provisions; but as we expected to replenish at whitman's, we gave them freely. we encamped on a branch of the wallawalla. this is a most beautiful valley of good land, but timber is limited to a few cottonwood and willows along the streams. in the afternoon of the 28th we reached dr. whitman's station.[205] here we remained until the 31st, when in company with four others, and the nez percé indians, we started for spalding's mission--mr. spalding being of our party. the rest of our party remained at whitman's. our object was to purchase horses and explore the country. the distance from dr. whitman's to spalding's was about one hundred and fifty miles, in a northeast direction. the first day we traveled but about twenty-five miles, over a most delightful prairie country, and encamped on a beautiful clear stream coming down from the blue mountains, which are about twelve miles distant.[206] the first of april we traveled about fifty-five miles, also over a delightful, rolling, prairie country; crossing several beautiful streams, lined with timber, and affording desirable locations for settlement. the soil is rich, and covered with an excellent coat of grass. this region possesses grazing advantages over any other portion of oregon that i have yet seen. the day was blustering, with a little snow, which melted as it reached the ground. on the 2d of april we arrived at mr. spalding's mission, {126} which is upon the kooskooskee or clear water,[207] and about twenty miles above its mouth or junction with lewis's fork of the columbia. ten miles from our camp we struck lewis's fork, and proceeded up it for five miles, and crossed. on our way up we passed a ledge of rocks of fluted columns, two or three hundred feet high. the bluffs of lewis's fork and the kooskooskee are very high, sometimes more than three thousand feet. the hills are nearly all covered with grass. as the time i could remain in this region would not allow me to explore it satisfactorily, i requested mr. spalding to furnish me with the result of his experience for ten years in the country. he very kindly complied, and the following is the information obtained from him.[208] as he goes very much into detail, it is unnecessary for me to add any further remarks here, in relation to this region of the country. we remained at this missionary establishment until the 10th of april. during our stay, we heard related many incidents common to a mountain life. at one time, when mr. spalding was on an excursion to one of the neighboring villages, accompanied by several indians and their wives, they espied a bear at a short distance clambering up a tree. he ascended thirty or forty feet, and halted to view the travelers. a tree standing near the one upon which sat the bear, with limbs conveniently situated to climb, induced mr. spalding to attempt to _lasso_ master bruin. he accordingly prepared himself with a _lasso_ rope, and ascended the tree until he attained an elevation equal to that of the bear. he then cut a limb, rested the noose of the rope upon one end, and endeavored to place it over the head of the bear; but as the rope approached his nose, bruin struck it with his paw, and as mr. s. had but one hand at liberty, he could not succeed, the weight of the rope being too great. he called to some of his indian friends, to come up and assist him; but none seemed willing to risk themselves so near the formidable animal. at length one of the squaws climbed up, and held the slack of the rope, and mr. s. succeeded in slipping the noose over bruin's head. he then descended from the tree, and as the rope extended to the ground, they gave it a jerk, and down came the bear, which fell in such a way as to pass the rope over a large limb, thus suspending him by the neck. the cattle which we had purchased were scattered over the {127} plain. on the 3d they were brought in, and the chief ellis bought the whole band, agreeing to give one horse for each head of cattle. his place of residence was about sixty miles further up the kooskooskee, but his father-in-law resided near the mission. ellis made arrangements with the latter for six horses, and delivered them to us, and his father-in-law took possession of the cattle. we left the horses in his possession, until ellis could return with the remainder of the horses. in his absence many of the natives came in with their horses to trade for the cattle, and when informed that ellis had bought them all, they were very much displeased, and charged ellis with conniving with the whites against his people. in a few days ellis returned, when the feelings of his people were so much against him, that he was forced to abandon the trade. his father-in-law drove down his band of horses according to agreement, but instead of bringing the horses which had been selected, he brought some old, broken-down horses that could not stand the trip. we objected to receive these horses, and thus broke up the whole arrangement. they had the horses and cattle; of course we demanded the cattle; the indians showed us that they were on the plains, and that we must hunt them up. we dispatched a party, and they soon brought us all but one heifer. our intention then was to drive the cattle down to dr. whitman's, and trade with the cayuses; but as we would be compelled to travel on foot for nearly one hundred and fifty miles, we abandoned the project. the neighboring indians soon drove in some horses to trade, and before night we had disposed of all but four head of our cattle, one yoke of oxen, one yearling heifer, and a yearling calf. the oxen belonged to me. i left them in charge of mr. spalding, until my return. in the exchange one horse was given for a cow or heifer. a few horses were purchased for other articles of trade, such as blankets, shirts, knives, &c. the value of fourteen dollars in trade would buy an ordinary horse; if it was an extra horse something more would be asked. four blankets was the price of a horse. none of the indians would take money except ellis. in fact they did not seem to know the value of money. during our stay at this place, the indians flocked in from all quarters. it is but seldom that the whites visit this portion of the country, and the indians all seemed anxious to see us. the house was literally filled from morning until night with men, women, and children. they are usually much better {128} clad than any other tribe east or west of the mountains, are quite clean, and are an industrious people. they have made considerable advances in cultivating the soil, and have large droves of horses, and many of them are raising large herds of cattle. mr. and mrs. spalding have kept up a school, and many of the indians have made great proficiency in spelling, reading, and writing. they use the english alphabet to the nez percé language. mr. spalding has made some translations from the scriptures, and among others from the book of matthew. from this printed copy[209] many of the indians have printed with a pen facsimiles of the translation, which are neatly executed. i have several copies in my possession of these and other writings, which can be seen at any time in laurel, indiana. they are a quiet, civil people, but proud and haughty; they endeavor to imitate the fashions of the whites, and owe much of their superior qualifications to the missionaries who are among them. mr. spalding and family have labored among them for ten years assiduously, and the increasing wants and demands of the natives require an additional amount of labor. a family of their own is rising around them, which necessarily requires a portion of their time; and the increasing cares of the family render it impossible to do that amount of good, and carry out fully that policy which they have so advantageously commenced for the natives. it is impossible for one family to counteract all the influences of bad and designing men, of whom there are not a few in the country. they need more assistance. there are a sufficient number of establishments, but not a sufficient number of persons at those establishments. for instance: mr. spalding must now attend not only to raising produce for his own family, but also to supply in a great measure food to numerous families of indians; to act as teacher and spiritual guide, as physician, and perform many other duties incident to his situation. with such a multitude of claims on his attention, his energies are too much divided, and on the whole his influence is lessened. could not the missionary board send out an assistant? there is one thing which could be accomplished with a small outlay, that would be of lasting advantage to these people. they are raising small flocks of sheep, and have been taught to card and spin and weave by hand, and prepare clothing--but the process is too tedious. a carding machine and machinery for fulling cloth would be a saving to the board of {129} missions, and of lasting benefit to the natives. there are no such machines in that country. the wood work of those machines could nearly all be done in the country; the cards and castings are all that would be necessary to ship. a mechanic to set up the machines would be necessary. perhaps no part of the world is better adapted to the growth of wool than this middle region, and it abounds with water-power to manufacture it. farmers, mechanics and teachers, should be sent among these people by the missionary board, or by the government. a division is about being made in this nation, which if not counteracted, will doubtless lead to bad consequences. three delaware indians have crossed the mountains, and settled on the kooskooskee among the nez percé indians. one of them, named tom hill, has so ingratiated himself into the feelings of the nez percé indians, that he has succeeded in persuading about one hundred lodges to acknowledge him as their chief. it was formerly, as among other tribes, customary for an indian to have as many wives as he could maintain; but the missionaries taught them otherwise, and succeeded in abolishing this heathen custom. but tom hill tells them that they can have as many wives as they please. he says to them, you make me chief, and i will make you a great people. the white men tell you not to steal--i tell you there is no harm in it; the bad consists in being caught at it. these men will mislead you, &c., &c. ellis and the other chiefs have exerted themselves to recall their people, but they cannot succeed. in conversing with ellis, i enquired whether cases of insanity were common among his people. he answered that he never knew a case of insanity, but this one of tom hill's. he looks upon him as a crazy man. the two other delaware indians are young men, and are industrious and peaceable. they have commenced cultivating the soil, and are raising a fine herd of cattle. ellis is considered wealthy. he has about fifteen hundred horses, a herd of cattle, some hogs, and a few sheep. many persons in this nation have from five to fifteen hundred head of horses. in traveling from dr. whitman's to this place, i saw more than ten thousand horses grazing upon the plains. they are good looking, and some of them large. in the fall i had made enquiries as to whether it was practicable to obtain the necessary supplies at these missions for our home journey; and in the winter mr. spalding wrote to us that he could furnish us with flour and meat. we had accordingly {130} contemplated procuring a part of our outfit at this place. a few bad designing indians had frequently given mr. spalding trouble about his place, and had made severe threats. at one time they had threatened to tie him, and drive his family away. they complained that the whites never came through their country, giving them the advantages of trade; but that the white men passed through the cayuse country, selling their cattle, clothing, &c.; and that if they could not have all the benefits of trade, the whites should leave the country. early in the spring some of them had got into a fit of ill humour, and had ordered mr. spalding from the place, cut open his mill-dam, threw down his fences, broke the windows of the church, crippled some of his hogs, and took possession of the whole premises. this time they seemed to be determined to carry their threats into execution. mr. s. allowed them to take their own course, putting no obstacle in their way. the principal men seemed to look on with indifference; but they evidently saw that it was likely to injure them, more than it would mr. spalding; for they relied upon the mill and farm for their support to a great extent. in the meantime mr. spalding had written a letter to us, informing us of his situation, and that we could not rely on him for furnishing us with supplies. he gave the letter to an indian to carry to dr. whitman's, that it might be forwarded to us. the indians being apprised of the contents of the letter, stopped the carrier, and took from him the letter, and after a consultation determined to abandon their rash course; as it would be likely to deprive them of the benefit of our trade, and be a barrier against the white men ever coming to trade with them. they accordingly brought the letter to mr. spalding, acknowledging they had done wrong, and placed him in full possession of his premises, promising to behave better for the future; and when we arrived he was enjoying their full confidence. the indians informed us that there was a good passway upon the north side of lewis's fork, by proceeding up the kooskooskee some sixty miles, and then striking across to salmon river, and then up to fort bois. by taking this route in the winter season, we would avoid the deep snow upon the blue mountains, as the route is mostly up the valley of lewis' river, and it is undoubtedly nearer to puget sound than by the old route. those wishing to settle about the sound would do well to take this route, or at least the saving in the distance {131} would justify an examination of the route, to ascertain its practicability. we were very hospitably entertained by mr. spalding, and his interesting family. with the exception of mr. gilbert, who is now engaged on the mission farm, and mr. craig, who has a native for a wife, and lives six hundred yards from mr. spalding's dwelling, the nearest white families are messrs. walker and ellis, who have a mission one hundred and thirty miles to the north, among the flathead nation; and dr. whitman, nearly one hundred and fifty miles distant, among the cayuses.[210] in this lonely situation they have spent the best part of their days, among the wild savages, and for no compensation but a scanty subsistence. in the early part of their sojourn they were compelled to use horse meat for food, but they are now getting herds of domestic animals about them, and raise a surplus of grain beyond their own wants. at mr. spalding's there is an excuse for a grist mill, which answers to chip up the grain, but they have no bolting cloth; in place of which they use a sieve. the meal makes very good bread. there was formerly a saw mill, but the irons have been taken and used in a mill which dr. whitman has recently built about twenty miles from his dwelling, at the foot of the blue mountains. the catholics have several missionary establishments upon the upper waters of the columbia.[211] on the 10th of april we had made the necessary arrangements, and started on our return to dr. whitman's, where we arrived on the 14th. on my way down in the fall, i had left a horse and a heifer with the doctor. they were now running on the plains. several persons were engaged in hunting them up; the horse was found and brought in, and was in good condition. the indians had concealed the horse, in order to force a trade, and offered to buy him, they to run the risk of finding him; but as he was a favorite horse, that i had brought from home, i felt gratified when he was found. the heifer i traded for a horse, the purchaser to find her. my two oxen, which i had left at mr. spalding's, i traded for a horse. an indian who had stolen a horse from a company in the fall, had been detected, and the horse taken to fort wallawalla. he had again stolen the horse, and traded him off. he was at dr. whitman's, and as the owner was of our party, he made a demand for the horse, and the indian gave up a {132} poor old horse in its stead. this was the same fellow that had bought my heifer. we remained at dr. whitman's until the 17th, when all was prepared, and we made a formal start. our party consisted of eighteen persons, and fifty-one horses and mules. we traveled about eight miles, and encamped. on the 18th, we traveled to the umatillo. on the way the fellow who had bought the heifer overtook us and demanded the horse, as he said he had not time to hunt up the heifer. i refused to give it up, and he insisted. at this juncture dr. whitman overtook us, and the indian made complaint to him. it was arranged that we should all go on to umatillo, where several of the chiefs resided, and have the matter amicably settled. we reached the river in the afternoon, and repaired to the chief's. the indian told his story, and i told mine. the chief decided that i should give up the horse, and he would give me a horse for the heifer. i agreed that in case the heifer could not be found, to give him another on my return to oregon. the indian set out with his horse, and the chief soon brought me one in its place, worth at least two such as the first. of course i was much pleased with the exchange. at night it commenced raining, and then snowing, and in the morning the snow was four or five inches deep on the ground. we were then immediately at the foot of the mountain, and as we expected the snow had fallen deep upon the mountain, we remained in camp all day. the 20th was unfavorable for traveling, and we remained in camp. on the 21st we took up the line of march, ascended the mountain, and advanced about twenty-five miles, which brought us over the dividing ridge. we found the snow in patches, and sometimes three feet deep--that is, the old snow, for the new fallen snow had all melted away. the grazing was poor, but at night we found a prairie upon the south side of the mountain, which afforded a scanty supply of grass; here we encamped for the night. the 22d was very blustery, sometimes snowing; very disagreeable traveling. we reached the grand round at 2 o'clock p. m. and encamped. here we found an abundance of good grass, and halted for the night. during the night the horse which i had obtained of the old chief broke from his picket, and in company with one that was running loose, took the back track. in the morning we dispatched two men, who followed them about four miles, when it was found that the {133} horses had left the road. the two men went back ten or twelve miles, but could see nothing of the horses. they then returned to camp. we in the mean time had packed up, and traveled across grand round about eight miles, when we encamped. in the morning we started back four men to hunt for the horses. on the evening of the 24th our men returned, but without the horses. on the morning of the 25th we packed up, traveled about twenty-six miles, and encamped on powder river, near the lone pine stump.[212] on the 27th we traveled about twenty-five miles. on the 28th we traveled about twenty-three miles, and encamped near malheur. on the 29th we reached fort bois. the people at the fort, and the indians in the vicinity, were evidently much alarmed. before reaching the fort, i saw at a distance numerous columns of smoke, alternately rising and disappearing; and then another column would rise at a great distance. these columns of smoke seemed to be signals that enemies were in the country. the people at the fort were seemingly friendly, and supplied us with milk and butter. we selected our camping ground with caution, and with an eye to the defence both of horses and men. our guard was doubled. we were visited by many indians, but no hostile demonstration was exhibited. here the wagon road crosses the river, but as there were no canoes at the upper crossing, and the river was too high to ford, we decided upon traveling up the south side of the river. on the 30th of april we packed up, and left fort bois. the trail led us up to the mouth of a stream coming in on the south side of lewis river, about one hundred yards in width. this we reached in about three miles. immediately at the crossing is an indian village of the shoshonee tribe. when within one fourth of a mile from the crossing, an indian who had been at our camp the evening before, was seen riding furiously towards us. he came up directly to me, extending his hand, which i took of course; two or three were riding in front with me, who all shook hands with him. he then turned and led the way through the bushes to the crossing. at the point where we came out, the bank was some fifteen feet high. a narrow place had been cut down, so as to admit but one horse at a time to go up the bank; the village was immediately upon the bank, and i discovered some thirty or forty indians standing near the point where the trail ascended the bank. i rode {134} to the top of the bank, where about fifteen ugly looking indians were standing, all striving to shake hands, but my horse would not allow them to approach. i passed on, the company following, and as we formed a long train, being in single file, by the time those behind were out of the creek, those in the lead were five or six hundred yards from the bank, and over a ridge. i halted the front, for all to come up, when i discovered that buckley, who was in the rear riding one horse and leading another, had not appeared over the ridge. two of the men who were in the rear went back for him. the horse which he was leading soon came running over the ridge, and as buckley did not make his appearance, we supposed that something was wrong. others started back, but they all soon returned, and we went on. in a few minutes, however, one of the party came riding up, and stated that the indians were going to charge upon us. at this instant a gun was fired by them, and a hideous yelling was heard at our heels. the indians were drawn up in line upon the ridge, all armed, some with muskets, and others with bows and arrows. the fellow who had met us, was still mounted, and running his horse from one end of the line to the other, and all were yelling like fiends. i thought it could not be possible that they would charge upon us, and ordered all hands to move along slowly but cautiously, to have their arms in readiness, and to keep the pack animals together, so that they could be stopped at any moment. we marched along slowly in close order, and paid no further regard to the indians, than to carefully watch their movements. they followed along a few hundred yards, and halted, their yells then ceased, and we saw nothing more of them. when the two men returned to buckley, the mounted indian spoken of had buckley's horse by the head; he had proposed an exchange, but buckley did not wish to swap, and asked him to let go the bridle: the indian held on, buckley pulled and he pulled; buckley rapped his knuckles with a whip, and in the scuffle the horse that b. was leading broke loose, and ran over the ridge, they not being able to catch him. at this juncture the two men arrived; one of them raised his rifle in the attitude of striking the indian on the head, but he paid no regard to it; the other, seeing his determined manner, rushed at him with his bowie knife; he then let go the bridle, and our men came up to the company. what his object was, or what their object in rallying their forces, i could not conjecture: but it {135} put us on our guard. at our night encampment there were indians prowling about, but they were afraid of our riding too near them, and made no attempt to steal, or otherwise molest us. the country was extremely dry and barren; grazing was very poor. on the 5th of may we arrived at the upper crossing of snake river. on our way we had seen several villages of shoshonee indians, but were not disturbed by them. the grazing was poor, and the country very barren. we crossed several warm streams running down from the mountains, which appeared at a distance of from five to ten miles on our right. a wagon road can be had along the south side of the river, by hugging the base of the mountains for twenty or thirty miles, when it would take down the low bottom of snake or lewis river; but the distance is greater than by crossing the river. on the 6th of may we reached salmon falls, and went up six miles to salmon fall creek, and encamped. on the 8th and 9th it rained and snowed, so that we were compelled to lay by most of the time. on the 10th it cleared up, and in the afternoon we had fair weather and pleasant traveling. on the 12th we reached cassia creek. at this place the california trail turns off. on the 14th we arrived at fort hall. on the 16th we reached the soda springs. on the 18th we met about six hundred lodges of snake indians; they were moving from big bear river to lewis' fork. on the 23d we reached green river, taking the northern route. much of the time the weather has been cool with frosty nights, and several days of rain and snow. on the 24th we crossed green river, and traveled about forty miles to the big sandy. the day was blustering, with rain and snow. along the bottoms of the sandy we found very good grazing for our animals. on the 25th we traveled to the little sandy. on the 26th we arrived at the _south pass_, and encamped on sweet water. here we saw a few buffalo. the ride from little sandy to sweet water was extremely unpleasant on account of the wind and snow. we were sometimes compelled to walk, in order to keep warm. we here found a horse, which we supposed had been lost by some emigrants the year before. he came running to our band, and exhibited signs of the greatest joy, by capering and prancing about. he was quite fat, and seemed determined to follow us. {136} on the 27th we traveled down the valley of sweet water about twenty-five miles. on our way we saw some hundreds of buffalo and antelope, and two grizzly bears. we gave the latter chase, but did not succeed in taking them. we had some difficulty in preventing our pack animals from following the numerous bands of buffalo which came rolling past us. we traveled down this valley until the 30th, and encamped about four miles east of _independence rock_, at a spring near a huge mountain of gray granite rock. soon after encamping it commenced raining, which turned to snow, and in the morning we had about five inches of snow upon us. we were uncomfortably situated, as we could procure but little fuel, and had no means of sheltering ourselves from the "peltings of the pitiless storm." our horses too fared poorly. on the 31st of may we remained in camp. by noon the snow had disappeared, and we succeeded in finding a few dry cedar trees, built a fire, and dried our effects. we had an abundance of buffalo marrow-bones, tongues, and other choice pieces, on which we feasted. we saw large droves of mountain sheep, or bighorn, and thousands of antelope. on the 2d of june we arrived at the north fork of platte. the plains during this day's travel were literally covered with buffalo, tens of thousands were to be seen at one view; antelope and black-tailed deer were seen in great abundance, and a few elk and common deer. one panther, and hundreds of wolves were also seen. we found the river too high to ford. soon after encamping, snow commenced falling, which continued all night, but melted as it reached the ground. the grazing on the bottom was excellent, the grass being about six inches high. this was the best grass we had seen since leaving burnt river. on the 3d we succeeded in finding a ford, and in the evening we crossed. on the 4th we reached deer creek, having traveled about thirty miles. on the way we saw a band of indians whom we supposed to be of the crow nation, and as they are generally for fight, we prepared to give them a warm reception; but it seemed that they were as fearful of us, as we were of them.[213] they were soon out of sight. after traveling about five miles, we saw them drawn up into line two miles from the road. as they were at a respectful distance, we did not molest them. we however kept a sharp look out, and at night were cautious in selecting camp ground. the grass was good, and our animals fared well. {137} on the 5th we traveled about fifteen miles, and encamped on mike's-head creek.[214] here we found two trappers, who had been out about three weeks. they accompanied us to fort laramie, which we reached on the 8th of june. in the morning h. smith, one of our party, in catching a mule was thrown, and his shoulder dislocated.[215] we attempted to set it, but could not succeed. he traveled on to the fort, but in great misery. we remained here until the afternoon of the 10th. mr. smith's shoulder was so much injured that he could not travel. he concluded to remain at the fort a few days; three men were to stay with him, and the rest of us had made arrangements for starting, when a company of oregon emigrants came in sight. we awaited their arrival, and had the gratification of hearing from the states, it being the first news we had received since leaving our homes. a part of us remained a few hours to give them an opportunity of writing to their friends; while five of the party took the road. in the evening we traveled about eight miles, and encamped. we continued for a distance of two hundred miles meeting companies of from six to forty wagons, until the number reached five hundred and forty-one wagons, and averaging about five souls to each wagon. they were generally in good health and fine spirits. two hundred and twelve wagons were bound for california; but i have since learned that many of those who had designed to go to california had changed their destination and were going to oregon.[216] at ash hollow we met a company who had lost many of their cattle and horses; but they were still going on. a short distance below the forks of platte, we met a company of forty-one wagons, under the command of a mr. smith, which company had lost about one hundred and fifty head of cattle; they were encamped, and parties were out hunting cattle.[217] we remained with them a short time, and then passed on. this was on the 18th of june. two of smith's company had taken the back track in search of a band of their cattle, which had traveled nearly forty miles on the return to the states. near night, and after we had encamped, two others of the company came up in search of the two men who had started in the morning. we had also met a boy belonging to their company, who had been in search of cattle, but had found none; and as it was nearly night, and he was about thirty miles from their camp, we induced him to remain with us through the night. {138} the two men who had arrived after we had encamped, concluded to continue their search until they found the two other men who had preceded them. accordingly after taking some refreshments, they mounted and followed on. soon after dark, they came running their horses up to our camp, one of them having behind him one of the men who had started out in the morning. they had proceeded from our camp about seven or eight miles, when rising over a small swell in the prairie, they discovered a few head of cattle, and saw ten or twelve indians, a part of them engaged in catching a horse which mr. trimble (one of the men who had started out in the morning) had been riding, and some were engaged in stripping the clothes from mr. harrison, the other of the men. the men who had left our camp put whip to their horses, and ran towards the indians, hallooing and yelling. the indians seeing them approach, and probably supposing that there was a large company, left harrison, and ran under a bluff, but they took the horses with them. harrison put on his clothes and mounted behind bratten, (one of the men who had come to their rescue,) stating that the indians had killed trimble,[218] and as none of the emigrants had fire-arms, the indians would soon return upon them. they then came to our camp. harrison stated that he and trimble had traveled nearly all day with that portion of our party who had started from the fort in advance of us, and near night had found five head of their cattle, with which they were returning to the company; and as they were traveling leisurely along, about dusk, whilst in a small hollow, ten or twelve indians came suddenly upon them, seized his horse, and endeavored to get hold of trimble's horse, but he jumped away, and ran his horse off. harrison in the mean time had dismounted, and three of the indians rifled him of his clothes. on looking to see what had become of trimble, he saw him riding in a circuitous manner towards the place where harrison was; at this instant some half dozen arrows were let fly at trimble by the indians, some of which took effect. he leaned a little forward, his horse at the time jumping; at that instant the crack of a gun was heard, and trimble fell from his horse upon his face, and did not move afterwards. his horse ran round for some minutes, the indians trying to catch him; and at that instant bratten and his friend came up. several of our party, supposing that we had passed all danger, had sold their arms to the emigrants, and we had but five {139} rifles in the company. it was quite dark, and there would be but little prospect of finding trimble, if we attempted a search. we therefore remained in camp until morning. about eleven o'clock at night we dispatched two persons back to inform the company of what had occurred, with a request that a force might be sent, which would be able to chastise the indians, if found. early in the morning we packed up and traveled to the spot where the murder had been committed. we found there trimble's hat, whip, and pocket knife; and several large pools of blood where he had fallen from his horse, and where the indians had evidently stripped him. we also found several arrows, two of which appeared to have struck him; but nothing could be found of his body. the river platte was about a quarter of a mile distant; we searched the shore diligently, but could see no sign. as we approached the spot a gun was fired on a large island opposite, but we saw no indians. eight beds in the grass near where the attack was made, showed the manner in which the indians had been concealed. it is highly probable that the indians had driven the cattle off, and that some of the indians concealed themselves, and as trimble and harrison had no fire-arms, and carried long ox-whips, they could be easily distinguished as cattle hunters, and the indians knowing that the white men must come back, selected a favorable spot, and attacked them as above related. the probability is, that had trimble and harrison been armed, they would not have been molested. we remained upon the ground until late in the afternoon, waiting the arrival of the force from the company. we finally began to despair of their coming, and feared that the two men whom we had sent back had been cut off; and as we had two of the company with us, and one of our party was back, we packed up and took the back track, and after traveling about five miles, we discovered a band of their cattle crossing the river a mile above us. we made to the shore, when the cattle turned down the river, in the direction of the head of the big island. we judged that the indians had been driving the cattle, but upon our approach had left them. the river was quite shoal, and buckley waded out and turned them to the shore. there were in this band twenty-one head of work cattle; two of them carried marks of the arrow. after traveling three miles farther, we espied the party coming to our assistance, but it consisted of only seven persons. {140} mr. trimble had left a wife and four children. she had sent by the party a request that we might come back, and allow her and family to travel with us to the u. states. we accordingly all took the road to the company's camp, (driving the cattle) which we reached at day-break on the morning of the 20th june. here we remained until the afternoon. by the persuasion of her friends, mrs. trimble concluded to continue her journey to oregon. but there were four families who had lost so many of their cattle, that they were unable to proceed on their journey. they had four wagons, and only five yoke of cattle, and some of them were very small. they wished us to travel with them through the pawnee country, as the pawnees were the perpetrators of the act which had caused them so much difficulty. we accordingly traveled with them until the 30th, when we left them, and resumed our journey towards home. on the morning of the 21st we were joined by mr. smith, and the three men who had been left at the fort. we traveled on rapidly day and night, barely giving our animals time to rest. the weather was becoming warm; the flies and musquitoes were very annoying. we arrived at the mission or agency on the morning of the 6th of july.[219] here are extensive farms, and a most delightful country. the first view of cultivated fields, and marks of civilization, brought simultaneous shouts from the whole party. our troubles and toils were all forgotten. on the 7th of july, at 10 o'clock a. m., we arrived at the st. joseph's mission, where we all hoped to meet with friends.[220] we had been so long among savages, that we resembled them much in appearance; but when attired in new apparel, and shaved as became white men, we hardly knew each other. we had been long in each other's company; had undergone hardships and privations together; had passed through many dangers, relying upon each other for aid and protection. attachments had grown up, which when we were about to separate were sensibly felt; but as we were yet separated from our families, where still stronger ties were felt, each one took his course, and in a few hours our party was scattered, and each traveling in a different direction. those of us who had mules found ready sales; but as the horses were much reduced in flesh, they could not be disposed of. our horses had stood the trip remarkably well, until within two hundred and fifty miles of missouri. but the flies {141} had so annoyed them, the weather being warm, and the grass of an inferior quality, that they had failed much. i had five horses; the one which i had taken from home was quite lame, and i left him at st. joseph's; the other four were indian horses, and mr. buckley agreed to take them by land, across missouri and illinois, and home; but he was unsuccessful, and arrived with only one of them. i took steamboat passage to st. louis[221] and cincinnati, and thence by stage to laurel, indiana, where i arrived on the 23d of july; having been gone from home one year three months and one week. i had the pleasure of finding my family enjoying good health. necessary outfits for emigrants traveling to oregon for burthen wagons, light four horse or heavy two horse wagons are the size commonly used. they should be made of the best material, well seasoned, and should in all cases have falling tongues. the tire should not be less than one and three fourth inches wide, but may be advantageously used three inches; two inches, however, is the most common width. in fastening on the tire, bolts should be used instead of nails; it should be at least 5/8 or 3/4 inches thick. hub boxes for the hubs should be about four inches. the skeins should be well steeled. the mormon fashioned wagon bed is the best. they are usually made straight, with side boards about 16 inches wide, and a projection outward of four inches on each side, and then another side board of ten or twelve inches; in this last, set the bows for covers, which should always be double. boxes for carrying effects should be so constructed as to correspond in height with the offset in the wagon bed, as this gives a smooth surface to sleep upon. ox teams are more extensively used than any others. oxen stand the trip much better, and are not so liable to be stolen by the indians, and are much less trouble. cattle are generally allowed to go at large, when not hitched to the wagons; whilst horses and mules must always be staked up at night. oxen can procure food in many places where horses cannot, and in much less time. cattle that have been raised in illinois or missouri, stand the trip better than those raised in indiana or ohio; as they have been accustomed to eating the prairie grass, upon which they must wholly rely while on the road. {142} great care should be taken in selecting cattle; they should be from four to six years old, tight and heavy made. for those who fit out but one wagon, it is not safe to start with less than four yoke of oxen, as they are liable to get lame, have sore necks, or to stray away. one team thus fitted up may start from missouri with twenty-five hundred pounds and as each day's rations make the load that much lighter, before they reach any rough road, their loading is much reduced. persons should recollect that every thing in the outfit should be as light as the required strength will permit; no useless trumpery should be taken. the loading should consist of provisions and apparel, a necessary supply of cooking fixtures, a few tools, &c. no great speculation can be made in buying cattle and driving them through to sell; but as the prices of oxen and cows are much higher in oregon than in the states, nothing is lost in having a good supply of them, which will enable the emigrant to wagon through many articles that are difficult to be obtained in oregon. each family should have a few cows, as the milk can be used the entire route, and they are often convenient to put to the wagon to relieve oxen. they should be so selected that portions of them would come in fresh upon the road. sheep can also be advantageously driven. american horses and mares always command high prices, and with careful usage can be taken through; but if used to wagons or carriages, their loading should be light. each family should be provided with a sheet-iron stove, with boiler; a platform can easily be constructed for carrying it at the hind end of the wagon; and as it is frequently quite windy, and there is often a scarcity of wood, the stove is very convenient. each family should also be provided with a tent, and to it should be attached good strong cords to fasten it down. the cooking fixtures generally used are of sheet iron; a dutch oven and skillet of cast metal are very essential. plates, cups, &c., should be of tin ware, as queens-ware is much heavier and liable to break, and consumes much time in packing up. a reflector is sometimes very useful. families should each have two churns, one for carrying sweet and one for sour milk. they should also have one eight or ten gallon keg for carrying water, one axe, one shovel, two or three augers, one hand saw, and if a farmer he should be provided with one crosscut saw and a few plough moulds, as it is difficult getting such articles. when i left the country, ploughs cost from twenty-five to forty dollars each. a good supply of ropes for {143} tying up horses and catching cattle, should also be taken. every person should be well supplied with boots and shoes, and in fact with every kind of clothing. it is also well to be supplied with at least one feather bed, and a good assortment of bedding. there are no tame geese in the country, but an abundance of wild ones; yet it is difficult procuring a sufficient quantity of feathers for a bed. the muscovy is the only tame duck in the country. each male person should have at least one rifle gun, and a shot gun is also very useful for wild fowl and small game, of which there is an abundance. the best sized calibre for the mountains is from thirty-two to fifty-six to the pound; but one of from sixty to eighty, or even less, is best when in the lower settlements. the buffalo seldom range beyond the south pass, and never west of green river. the larger game are elk, deer, antelope, mountain sheep or bighorn, and bear. the small game are hare, rabbit, grouse, sage hen, pheasant, quail, &c. a good supply of ammunition is essential. in laying in a supply of provisions for the journey, persons will doubtless be governed, in some degree, by their means; but there are a few essentials that all will require. for each adult, there should be two hundred pounds of flour, thirty pounds of pilot bread, seventy-five pounds of bacon, ten pounds of rice, five pounds of coffee, two pounds of tea, twenty-five pounds of sugar, half a bushel of dried beans, one bushel of dried fruit, two pounds of saleratus, ten pounds of salt, half a bushel of corn meal; and it is well to have a half bushel of corn, parched and ground; a small keg of vinegar should also be taken. to the above may be added as many good things as the means of the person will enable him to carry; for whatever is good at home, is none the less so on the road. the above will be ample for the journey; but should an additional quantity be taken, it can readily be disposed of in the mountains and at good prices, not for cash, but for robes, dressed skins, buckskin pants, moccasins, &c. it is also well for families to be provided with medicines. it is seldom however, that emigrants are sick; but sometimes eating too freely of fresh buffalo meat causes diarrhoea, and unless it be checked soon prostrates the individual, and leaves him a fit subject for disease. the time usually occupied in making the trip from missouri to oregon city is about five months; but with the aid of a person who has traveled the route with an emigrating company the trip can be performed in about four months. {144} much injury is done to teams in racing them, endeavoring to pass each other. emigrants should make an every day business of traveling--resting upon the same ground two nights is not good policy, as the teams are likely to ramble too far. getting into large companies should be avoided, as they are necessarily compelled to move more tardily. from ten to twenty-five wagons is a sufficient number to travel with safety. the advance and rear companies should not be less than twenty; but between, it may be safe to go with six. the indians are very annoying on account of their thieving propensities, but if well watched, they would seldom put them into practice. persons should always avoid rambling far from camp unarmed, or in too small parties; indians will sometimes seek such opportunities to rob a man of what little effects he has about him; and if he attempts to get away from them with his property, they will sometimes shoot him. there are several points along the missouri where emigrants have been in the practice of fitting out. of these independence, st. joseph, and council bluffs, are the most noted. for those emigrating from ohio, indiana, illinois and northern missouri, iowa and michigan, i think st. joseph the best point; as by taking that route the crossing of several streams (which at the early season we travel are sometimes very high) is avoided. outfits may be had at this point, as readily as at any other along the river. work cattle can be bought in its vicinity for from twenty-five to thirty dollars per yoke, cows, horses, &c., equally cheap. emigrants should endeavor to arrive at st. joseph early in april, so as to be in readiness to take up the line of march by the middle of april. companies, however, have often started as late as the tenth of may; but in such cases they seldom arrive in oregon until after the rainy season commences in the cascade range of mountains. those residing in northern ohio, indiana, illinois, michigan, &c., who contemplate traveling by land to the place of rendezvous, should start in time to give their teams at least ten days rest. ox teams, after traveling four or five hundred miles in the states, at that season of the year, would be unfit to perform a journey across the mountains; but doubtless they might be exchanged for others, at or near the rendezvous. farmers would do well to take along a good supply of horse gears. mechanics should take such tools as are easily carried; as there are but few in the country, and those are held at exorbitant {145} prices. every family should lay in a good supply of school books for their children. in case of an emergency, flour can be bought at fort hall, and fort bois, two trading posts of the hudson's bay company, at twenty dollars per hundred; and by forwarding word to spalding's mission, on the kooskooskee, they will pack out flour to fort bois, at ten dollars per hundred, and to the grand round at eight dollars, and will take in exchange dry goods, groceries, &c.; but at forts hall and bois, the company will take nothing in payment but cash or cattle. at dr. whitman's station, flour can be bought at five dollars per hundred, corn meal at four dollars, beef at six and seven cents per pound, potatoes, fifty cents per bushel. it is proper to observe that the flour at spalding's and whitman's stations will be unbolted. emigrants however, should be cautious, and lay in a sufficient supply to last them through. words used in the chinook jargon this is a tongue spoken by a few in each of the tribes residing in the middle and lower divisions of oregon. it is also used by the french, and nearly all the old settlers in the country. _aach_ _ekik_ _hu-e-hu_ sister fish-hook swap, exchange _aha_ _elitah_ _hol_ yes slave drag, or pull _alka_ _esick_ _ilips_ future, by and by paddle first _alta_ _esil_ _ith-lu-el_, or _ituel_ present, now corn meat, flesh _ala_ _geleech_ _i-yak_ i wonder grease quick, or hurry _ankote_ _halo_ _il-a-he_ past time none soil, dirt _chawko_ _hankachim_ _ichwet_ come handkerchief bear _chee_ _hous_ _is-kum_ new house take _chinkamin_ _how_ _in-a-ti_ iron, chain let us overdress _chuck_ _hoel-hoel_ _ith-lu-k-ma_ water mouse gamble _deob_ _high-you_ _i-wa_ satan quantity, many beaver _delie_ _high-you-k-wah_ _ips-wet_ dry ring hide _ekih_ _hul-u-e-ma_ _ik-ta_ brother-in-law strange, different what _kah_ _k-wathen_ _kilaps_ where bell turn over _k-u-ten_ _k-macks_ _klips_ horse dog upset _kaw-lo-ke-lo_ _klugh_ _ko-el_ goose split, or plough cold _ka-luck_ _ko-pet_ _kap-wah_ swan done, finished alike _k-puet_ _kop-po_ _kon-a-maxt_ needle older brother both _kot-suck_ _kow_ _kla-hum_ middle is to tie good-bye _kap-o_ _k-wat_ _kla-hi-you_ coat hit how do you do _ka-nim_ _kop-shut_ _kaw-a-nassim_ canoe broken always _ka-ta_ _ko_ _kla-ha-na_ why arrived out _kap-su-alla_ _kim-to_ _klim-in-wit_ theft, steal behind a falsehood _k-liten_ _kollo_ _krap-po_ lead fence toad _kaw-kaw_ _kutt_ _klose_ crow hard good _klat-a-wah_ _klimin_ _klas-ko_ go, walk fine them, those _kul-a-kulla_ _kle-il_ _ka-so_ fowl black rum _kum-tux_ _ka-was_ _ko-pa_ know, or understand afraid there _ke-a-wale_ _kom-suck_ _kit-lo_ love beads kettle _ka-wah-we_ _ko-ko-well_ _klone-ass_ all eel i do not understand _klow-e-wah_ _klaps_ _klop-sta_ slow find who _k-wallen_ _kow-ne-aw_ _klouch-man_ the ear how many female _kee-kool_ _la-sel_ _le-lu_ down saddle panther _lepo-lo_ _le-lo-im_ _le-pul_ pan sharp chickens _le-por-shet_ _le-poim_ _lecorset_ fork apple trunk _lehash_ _la-bush_ _laport_ axe mouth door _leg-win_ _le-da_ _le-pip_ saw teeth pipe _lima_ _le-ku_ _lo-lo_ the hand neck carry, or tote _lita_ _le-mora_ _leb-ya_ head wild old woman _le-pe-a_ _lashimney_ _la-lure_ feet chimney hoe _lo-ma-las_ _lemitten_ _la-cope_ molasses mitten white _lemon-to_ _la-ha-la_ _la-cre-me_ sheep feel yellow _lavest_ _le-le_ _mas-a-tro_ jacket, or vest a long time bad _la-ep_ _las-well_ _met-lite_ rope silk residence, sitting down, &c. _lep-lash_ _la-tem_ boards table _mal-ha-na_ as, in the river; or, _lep-wa_ _lep-o-lip_ push off the boat peas boil _lep-well_ _le-sit-well_ _man_ skillet stars male _la-win_ _le-mit-rem_ _mow-etch_ oats medicine deer _la-ram_ _le-shaw_ _mu-lack_ oar, for boats shoe elk _le-wash_ _le-sack_ _muse-a-muse_ snow sack, or bag cattle _lemonti_ _le-quim_ _me-si-ka_ mountain white bear plural of you _muck-a-muck_ _o-ep-can_ _papo_ provisions, eat basket father _musket_ _o-ep-in-pin_ _pil_ rifle, or gun skunk red _moon_ _o-e-lile_ _pe-chi_ month berries green _mo-kah_ _o-e-pick_ _pat-le_ buy both full _mim-a-loosheb_ _o-elk_ _poo_ die, or dead snake shoot _mal-hu-ale_ _o-lo_ _pe-teck_ back hungry the world _mi-ka_ _oel-hin_ _pilton_ you seal foolish _ni-ka_ _o-koke_ _pal-a-k-lo_ i, or me this, or that night _nan-ach_ _pi-yah_ _pes-hocks_ look, or see fire thickety _na-ha_ _pos-ton_ _pis-say-ukes_ mother americans french _new-ha_ _pee_ _quack-quack_ let and duck _now-it-k_ _pus_ _si-wash_ yes, certainly if indians _ne-si-ka_ _puss_ _swas_ we, us cat rain _nein_ _pish-hash_ _sah-lee_ name polecat high _o-es-km_ _pos-seas_ _stick_ caps blanket wood _oel-man_ _pot-latch_ _seck-um_ old give swim _o-pet-sa_ _pole-ally_ _si-yaw_ knife powder far _o-pes-wa_ _po-et_ _sap-a-lil_ wonder, astonishment boat flour _ow_ _pa-pa_ _su-ga_ brother paper sugar _sec-a-lukes_ _shot_ _to-lo_ pantaloons shot win, or gain _sap-a-pul_ _sup-ner_ _te-ma-has_ hat jump poison _sto-en_ _til-a-kum_ _ti-pee_ rock people an ornament _sil_ _tit-the-ko-ep_ _te-kah_ shirting cut want _sko-kum_ _tum-tum_ _till_ strong, stout the heart heavy, or tired _sec-pee_ _te-o-wit_ _toc-ta_ to miss leg doctor _see-ah-os-ti_ _tum-pe-lo_ _wah-wah_ face, or eyes back talk, conversation _sam-mon_ _tam-o-lack_ _wake_ fish barrel no, not _sto-gon_ _ti-ye_ _wap-a-to_ sturgeon master, or chief potato _son-dra_ _tes-um_ _win_ roan pretty wind _salt_ _to-lo-bus_ _wam_ salt wolf warm _shu-es_ _te-ko-ep_ _wetch_ shoes white more _sun_ _te-mo-lo_ _ya-ka_ sun, or day to-morrow him, she, it _silk-um_ _tu-lusk_ _yaw-wah_ half, or a part milk yonder _smo-ek_ _tip-so_ _yok-sa_ smoke grass hair _sul-luks_ _tum-tuk_ _ya-ha-la_ mad, angry water-falls name _six_ _ton-tle-ke_ _yult-cut_ friends yesterday long _sick_ _t-sit-still_ _you-till_ sick, or sore buttons, or tacks glad, proud _shut_ _tee-see_ shirt sweet chinook mode of computing numbers _iht_ 1 _dilo-p-sin-a-maxt_ 17 _makst_ 2 _dilo-p-sow-skins_ 18 _klone_ 3 _dilo-p-k-wi-etst_ 19 _lakst_ 4 _tath-la-hun makst_ 20 _k-win-nim_ 5 _tath-la-hun klone_ 30 _ta-hum_ 6 _tath-la-hun lakst_ 40 _sina-maxt_ 7 _tath-la-hun k-win-ma_ 50 _sow-skins_ 8 _tath-la-hun ta-hum_ 60 _k-wi-etst_ 9 _tath-la-hun sin-a-maxt_ 70 _tath-la-ham_ 10 _tath-la-hun sow-skins_ 80 _dilo-pe-iht_ 11 _tath-la-hun k-wi-etst_ 90 _dilo-p-maxt_ 12 _tak-o-mo-nuxt_ 100 _dilo-p-klone_ 13 _tak-o-mo-maxt_ 200 _dilo-p-lakst_ 14 _tak-o-mo-nuxt klone_ 300 _dilo-p-k-winnim_ 15 _tak-o-mo-nuxt lakst_ 400 _dilo-p-ta-hum_ 16 _tak-o-mo-nuxt k-win-nim_ 500 words used in the nez percé language _hama_ _talonot_ _ipalikt_ man ox clouds _aiat_ _talohin_ _wakit_ women bull rain _haswal_ _kulkulal_ _hiwakasha_ boy calf rains _pitin_ _shikam_ _maka_ girl horse snow _silu_ _tilipa_ _hatia_ eye fox wind _huku_ _tahspul_ _yakas_ hair beaver hot _ipsus_ _kelash_ _yamits_ hand otter cold _ahwa_ _hisamtucks_ _tiputput_ feet sun warm _simusimu_ _hayaksa_ _silakt_ black is hungry body _ilpilp_ _husus_ _katnanas_ red head salt _yosyos_ _kohalh_ _haya_ gray cow salmon-trout _shukuishukui_ _kaih_ _wahwahlam_ brown colt trout _kohatu_ _highwayahwasa_ _ilat_ short snows weak _kohat_ _haihai_ _wals_ long white knife _kalinin_ _ashtai_ _ilatama_ crooked fork is blind _tukuh_ _ashtai_ _lakailakai_ straight awl gentle _silpsilp_ _wawianas_ _shiau_ money axe skittish _taiitaii_ _kimstam_ _waiat_ flat near far _hamoihamoi_ _maksmaks_ _shakinkash_ soft yellow saw _sisyukas_ _shapikash_ _wishan_ sugar file poor _pishakas_ _takai_ _ilahui_ bitter blanket many _komain_ _sham_ _milas_ sickness coat few _hickomaisa_ _ahwa_ _animikinikai_ is sick foot below _aluin_ _silpsilp_ _tokmal_ is lame round hat _wakaas_ _tohon_ _huwialatus_ is well pantaloons weary _tinukin_ _ilapkit_ _ahat_ is dead shoe down _hiswesa_ _hikai_ _akamkinikai_ is cold kettle above _yahet_ _sham_ _koko_ neck shirt raven _nahso_ _laka_ _houtat_ salmon pine goose _tushti_ _isa_ _houtat_ up mother geese _atim_ _nisu_ _yaya_ arm child swan _matsayee_ _mamaias_ _yatin_ ear children crane _piama_ _hikai_ _paps_ brothers pail fir, (tree) _kelah_ _sishnim_ _kopkop_ sturgeon thorns cottonwood _wayu_ _sikstua_ _with_ leg friend alder _kupkup_ _lantuama_ _tahs_ back friends willows _timina_ _walatakai_ _tims_ heart pan cherry _sho_ _kuish_ _satahswakkus_ spoon risk corn _kahno_ _shushai_ _paks_ prairie-hen grass wheat _huhui_ _suyam_ _lapatat_ shoulder sucker potatoes _pisht_ _hashu_ _papa_ father eel a spring _walpilkash_ _shakantai_ _wawahp_ auger eagle spring (season) _katkat_ _sholoshah_ _tiam_ duck fish-hawk summer _askap_ _washwashno_ _shahnim_ brother hen fall _asmatan_ _koun_ _anim_ sisters dove winter _kinis_ _aa_ _pelush_ sister crow gooseberry _kikaya_ _timanawat_ _yaka_ serviceberry a writer black bear _kahas_ _sapaliknawat_ _kemo_ milk a labourer old man _katamnawakno_ _hania_ _tahat_ peas made young man _hahushwakus_ _hanishaka_ _otwai_ green have made old woman _inina_ _hanitatasha_ _timai_ house will make young woman _sanitwakus_ _hanikika_ _pishas_ parsnips made going father-in-law _initain_ _hanisna_ _pishas_ for a house made coming son-in-law _initpa_ _ipna hani aisha_ _siwako_ to the house make for him mother-in-law _initkinai_ _hanitasa_ _siwaka_ from the house go and make daughter-in-law _initrim_ _tash hama_ _inaya_ house only good man brother-in-law _ininm_ _tash timina_ _siks_ of a house good heart sister-in-law _initki_ _tash shikam_ _pimh_ by a house good horse step-father _initph_ _tiskan shikam_ _kaka_ to a house fat horse step-mother _haniai_ _hamtis shikam_ _lemakas_ not made fast horse deep _haniawat_ _kapskaps shikam_ _pakas_ a mechanic strong horse shallow _hanishimai_ _sininish shikam_ _mul_ not a mechanic lazy horse rapids _tamtainat_ _kapsis shikam_ _amshah_ preacher bad horse breaker _himtakewat_ _haihai shikam_ _watas_ teacher white horse land _tamiawat_ _hahas_ _pishwai_ trader gray bear stones _mahsham_ _hitkakokaiko_ _watoikash_ mountain he gallops it is fordable _kuhsin_ _hitksilsilsa_ _hatsu hiyaniksa_ hill he trots wood is floating _tahpam_ _himilmilisha_ _hiwalasa_ plain he paces the water runs _hantikam_ _hiwalakaiks_ _hahanwasam_ bough he walks the day is dawning _tepitepit_ _hishaulakiks_ _wako hikaaun_ smooth he runs it is daylight now _wilpwilp_ _titishka shikam_ _hitinatra hisamtuks_ round fat horses the sun is rising _pohol_ _maksmaks shikam_ _naks halaps_ valley sorrel horse one day _tasham_ _hihaihai shikam_ _hikulawitsa_ ridge white horse it is evening _iwatam_ _tamsilps shikam_ _kaaun_ lake spotted horse daylight _tikim_ _tilamselp shikam_ _hatsu hialika_ falls spotted horses the wood is lodged _hitkawisha_ _minsahsminko_ _kia waaiikshi_ he falls read we are crossing _kohat tawish_ _kokalh_ _ka apapinmiks_ long horn cattle let us sleep _wishan kokalk_ _hiwaliksa_ _ka apahips_ poor ox the river is rising let us eat _lilkailakikokal_ _hitaausa_ _ka apakus_ gentle cows the river is falling let us go _hiwasasha_ _hiwalasa_ _ka apasklin_ he rides the water runs let us go back nez percé mode of computing numbers _naks_ 1 _putimpt wah wimatat_ 18 _lapit_ 2 _putimpt wah kuis_ 19 _mitat_ 3 _laptit_ 20 _pilapt_ 4 _laptit wah naks_ 21 _pahat_ 5 _mitaptit_ 30 _wilaks_ 6 _piloptit_ 40 _winapt_ 7 _pakaptit_ 50 _wimatat_ 8 _wilaksaptit_ 60 _kuis_ 9 _winaptit_ 70 _putimpt_ 10 _wimitaptit_ 80 _putimpt wah naks_ 11 _kuisaptit_ 90 _putimpt wah lapit_ 12 _putaptit_ 100 _putimpt wah mitat_ 13 _laposhus_ 200 _putimpt wah pilapt_ 14 _mitoshus_ 300 _putimpt wah pahat_ 15 _pelaposhus_ 400 _putimpt wah wilaks_ 16 _pakoshus_ 500 _putimpt winapt_ 17 table of distances from independence, missouri; and st. joseph, to oregon city, in oregon territory miles from independence to rendezvous 20 " rendezvous to elm grove 13 " elm grove to walkarusha 20 " walkarusha to crossing of kansas river 28 " kansas to crossing of turkey creek 14 " turkey creek to little vermilion 24 " little vermilion to branch of same 12 " to big vermilion, with intermediate camps 29 " vermilion to lee's branch 8 " lee's branch to big blue 6 " big blue to the junction with st. joseph's trail 10 the distance from st. joseph, missouri, to the independence trail, striking it ten miles west of blue river, is about one hundred miles. good camps can be had from eight to fifteen miles apart. from forks of road as above, to big sandy, striking it near its junction with the republican fork of blue river, with intermediate camps 42 " sandy to republican fork of blue river 18 " up republican fork, with good camps 53 " republican fork to big platte 20 " up big platte to the crossing of south fork 120 camps can be had at suitable distances, with wood for fuel upon the islands. from lower to upper crossings of south fork 45 there is a road on each side of the river, and but little choice in them. from south to north fork, at ash hollow 20 " ash hollow to opposite solitary tower, on little creek 42 " little creek to opposite chimney rock 16 " chimney rock to where the road leaves the river 15 " thence to scott's bluffs (good spring) 10 " scott's bluffs to horse creek 12 " horse creek to fort laramie 24 " laramie to dry branch and big spring 12 " to bitter cottonwood 10 to willow branch 7 " horse shoe creek 7 " river 8 thence to where the road leaves the river 8 to big timber creek 16 " marble creek 5 " mike's-head creek 12 " the river, crossing several streams 10 " deer creek 6 thence to crossing of north fork of platte 25 from crossing of platte to spring 10 thence to mineral springs (bad camp) 8 " willow spring (good camp) 5 " independence rock on sweet water 22 " devil's gate 5 up sweet water to south pass (good camps) 104 over the dividing ridge to pacific spring, the waters of which run into green river 5 here, hail oregon! from spring to little sandy 20 here the road forks, the southern trail going by way of bridger's old fort, and thence to bear river. the northern (which is two and a half days less driving) strikes green river about forty miles above the southern trail; i will give the distance on both routes. the northern route, from little sandy to big sandy 6 from big sandy to green river 40 (no water and but little grass between.) " thence to bear river, (with good camps,) 64 on the southern route:- from little sandy to big sandy 12 down big sandy to green river 24 cross green river and down 8 from green river to black's fork 15 up black's fork to bridger's old fort 30 from old fort to little muddy (poor camp) 8 " thence to big muddy (poor camp) 10 up big muddy to the dividing ridge (good camp near head of creek) 32 over dividing ridge to spring 10 from spring to camp on bear river 6 " thence to where the northern trail comes in 10 to smith's fork three miles, to narrows four miles, and thence to crossing of bear river three miles 10 here the road forks; the nearest is to follow up the creek two miles, cross and then go over the ridge five miles to foot of big hill, where the roads again unite 7 the other road crosses the river, follows up the bottom about ten miles, re-crosses and is then about seven miles to junction. from foot of big hill, to top of ridge is about 3 " thence to big timber on bear river 4 here is a company of american traders and trappers from big timber to soda springs 36 " spring to soda pool seven miles, to spring branch three 10 " spring to running branch 9 " thence to foot of hill 8 " foot of hill over dividing ridge and down to camp 12 " thence to lewis's river bottom at springs 18 and to fort hall 5 " fort hall to the crossing of portneth 6 " portneth to american falls 12 " american falls to levey creek 15 " thence to cassia creek, (here the california trail turns off) 8 " cassia to big marsh 15 " marsh to river 11 " river to goose creek four miles, seven miles to river, and twelve miles to dry branch, (water in pools) 23 to rocky creek 8 to crossing of rocky creek, eight miles, down to where the road leaves the bluff of creek, seven 15 " salmon falls creek 20 from thence to salmon falls 6 " falls to first crossing of lewis river 23 " crossing to bois river is about 70 camps can be had from six to fifteen miles down bois river to fort bois (good camps) 46 cross lewis river and thence to malheur 15 " malheur to birch creek, about 20 " birch creek to river three miles, and thence five miles to burnt river 8 up burnt river about (good camps) 26 from where the road leaves burnt river, to the lone pine stump in the bottom of powder river, (the last thirteen miles no water) 28 to the crossing of powder river 10 to grand round 15 across the southern end of grand round 7 up big hill and on to grand round river 8 over the blue mountains to lee's encampment 19 to umatillo river 16 down umatillo river 44 " columbia river to john day's river 33 from thence to falls river 22 and thence to the dalles of the columbia 16 from the dalles to oregon city, by way of wagon road south of mount hood about 160 upon reaching the columbia, emigrants should have persons in advance to select suitable places for camp ground: as the country along the river is extremely barren, and the grazing limited to small patches. appendix letter of the rev. h. h. spalding to joel palmer (_referred to on page 126_ [_our page 233_]) nez percé mission, clear water river, _oregon territory_, april 7, 1846. to joel palmer esq. of indiana. my dear sir:--agreeably to your request i most cheerfully give you my views concerning the oregon territory, its extent, its most desirable climate, fertility of soil, rivers and mountains, seas and bays, and its proximity to one of the most extensive markets opening upon the world. the oregon territory is usually divided into three great divisions, the lower, middle, and upper regions. the upper includes the rocky mountains, with the head waters of most of the rivers running west and east, north and south, and extends west to the blue and spokan ranges of mountains. the lower includes the belt of country bounded on the west by the pacific, and on the east by the nesqually, cascade, and california mountains. the middle region lies between the two, and embraces probably far the greatest extent of country, and is in some respects the most desirable for settlers. the number of rainy days, during the winter season, in the lower country, is thought to be about eighty-five one-hundredths; while the number of rainy days during the same season in the upper (or middle) country, is about fifteen one-hundredths. {166} there is but little more snow during the winter season in the middle than in the lower region of the columbia river, or upon the plains. of course the depth of snow upon the mountains, depends upon their height. the lower country is subject to inundations, to a greater or less extent, from the columbia river, which gathering into standing pools, with the great amount of vegetable decay consequent upon low prairie countries, produces to some extent unhealthy fogs during the summer season. this, however, is greatly moderated by the sea breezes from the pacific. the middle region is entirely free from these evils, and has probably one of the most pacific, healthy, and every way most desirable climates in the world. this, with its extensive prairies, covered with a superior quality of grass tuft, or bunch grass, which springs fresh twice a year, and spotted and streaked everywhere with springs and streams of the purest, sweetest water, renders it admirably adapted to the herding system. the lower country will ever have greatly the advantage in its proximity to market, its extensive sea coast, and from the fact that it contains one of the largest and best harbors in the world, viz. puget's sound, running far inland, the mouth of which is protected by vancouver's island, easy of access at all seasons and under all winds. but to go into detail. myself and wife were appointed missionaries by the american board of commissioners for foreign missions, and destined to this field, and with our worthy associates, dr. whitman, and lady, arrived in this country in the fall of 1836. the doctor settled among the cayuses near fort wallawalla, and myself at this place, where we have ever since continued to dwell. our duties have called us to travel more or less every year to visit the distant bands and tribes, as also to pack our supplies. i have traversed this middle region in seventeen different routes, of from 60 to 300 miles. over many of the routes i have passed probably in every month in the year, have marked the progress of vegetation from its earliest shooting forth; the effects of this climate {167} upon the animal constitution; the rapidity with which exhausted poor animals regain their flesh and activity, when turned upon the plains; and have kept tables under some of these heads, as also a meteorological table for several years. let me here observe that my views of the country have been materially changed by a more accurate acquaintance with its true nature. i once thought the valleys only susceptible of habitation; considering the plains too dry for cultivation. but i am now prepared to say this is not the case. the plains suffer far less from drought than the valleys, on account of the reflection of heat from the surrounding hills. the country, however, is nowhere peculiarly subject to drought, as was once thought. my place is one of the deepest valleys, and consequently the most exposed to the reflection from the high bluffs around, which rise from two to three thousand feet; but my farm, though prepared for irrigation, has remained without it for the last four years. i find the ground becomes more moist by cultivation. three years ago i raised six hundred bushels of shelled corn from six acres, and good crops of wheat on the same piece the two following years, without irrigation. eight years ago i raised 1500 bushels of potatoes from one acre and a half; measuring some of the bags in which they were brought to the cellars, and so judging of the whole amount. i gave every eleventh bag for digging and fetching, and kept a strict account of what every person brought, so that i was able to make a pretty accurate estimate of the whole amount. my potatoes and corn are always planted in drills. every kind of grain or vegetable which i have tried or seen tried in this upper country, grows well. wheat is sown in the fall, and harvested in june at this place; at dr. whitman's in july, being a more open country. corn is planted in april and ripens in july; peas the same. extent of country the southern boundary of oregon territory is the 42d degree of north latitude. the northern boundary is not yet settled;[222] {168} both england and the united states claim north of the columbia river to latitude 49°. but this vast fertile region, well timbered upon the mountains and river sources, and well watered, besides having the fine harbor above named, puget's sound, must ever remain the most important portion of oregon, especially on account of this harbor, which will naturally control these seas, and consequently the country. should the british flag finally exclusively wave over its placid waters, it will be to the rest of oregon as quebec is to canada, or gibraltar to the mediterranean. vancouver's island is doubtless another reason why great britain wishes to make the columbia river her northern boundary. the line of 49° passes a little north of the southern half of the island. the whole island contains a territory considerably larger than england and scotland, produces every kind of grain and vegetable well, and has a climate very similar to our middle and southern states. whatever nation possesses this island, or the south portion of it, with its neighboring harbor, puget's sound, possesses nearly all of a national consideration which pertains to oregon, and will consequently control it. but if this island, or this portion of it, with this harbor, add their ever controlling influence to the undivided interests of oregon, this young colony, but yesterday begun, and whose country and existence were but yesterday disputed, will at no distant day, under the softening, life-giving influence of civilization and our holy religion, take its place among the wealthiest, happiest, and best nations of the earth. the country of oregon, should it extend to 49° north latitude, is probably capable of sustaining as great a population as two-thirds of the territory of the states, and with far less hard labor. climate this is decidedly the inviting characteristic of the country, and is certainly a great inducement for all persons of delicate health. i speak of the middle region. free from marshes or standing water and vegetable decay, the air is remarkably pure and serene; summers rather warm, especially in the valleys; the mercury ranges, for some time during the hot season, from 100 to 109 degrees above zero. nights cool, but no fog or dew, except in a few places. twice since i have been in the country frost has injured vines, leaves, &c., first of may, but never in the fall till late; often my melon vines, &c., are green till the first of december. four times since i have been here the mercury has fallen below zero; once to 26 degrees. but usually it ranges above 20 in the morning, and above 60 through the day. during six of the ten winters i have passed in the country, the rivers have not been frozen. the columbia river has been frozen nearly to its mouth, twice since i have been in the country. the snow sometimes falls a foot deep--i should judge about once in five years. about half of my winters here there has been no snow in the valleys, and but little on the plains, except to whiten the earth for a short time. it disappears in a few hours, especially on the south face of the bluffs and hills. last year i made a collection of flowers and plants, which i purpose to send to washington. i gathered two flowers in january, on the 22d and 29th,[223] and during the month of february some 40 showed themselves, and by the first of march the grass on the south faces of the bluffs was 14 inches high. this year the season was about three weeks later, judging by the appearance of flowers. i know of no disease that can be said to be peculiar to the country. the country is peculiarly free from sudden changes of weather, or violent storms. persons who have wintered here from the south, tell me the winters are as mild as the winters {170} in the northern parts of north and south carolina, and with less sudden changes. advantages for the herding system the country is one extensive prairie, except the mountains, which are covered with several species of pine, cedar, and fir. the prairies are rolling, and with the exception of a narrow belt of sand and sedge upon the columbia, and portions of the snake river, are everywhere covered with the bunch grass, which, from observation, i judge to be a richer, heartier food for animals than corn, oats, and the best pastures of the states. it is a fine, solid stalk, growing two feet high, with fine leaves, holds its freshness through the winter; i mean the old stalk, which mingled with the young growth, that usually springs fresh in the fall, forms a food for animals through the winter, preferable to the best hay. horses and oxen perform labor at all seasons upon this grass simply, without the aid of grain; which i now think disposes the animal system to various diseases. when i pack, i usually travel from thirty-five to forty miles a day, each horse carrying two hundred pounds--rest an hour at noon, without taking down the packs; camp while the sun is yet two hours high; hobble the horses and drive them up in the morning at sunrise. i find that horses will endure such labor for twenty-five or thirty days, resting of course on the sabbath, upon this grass, without injuring them. their wind is evidently better than that of horses fed on grain and hay. i have rode from dr. whitman's station to this, 125 miles, in nineteen hours, starting at 9 o'clock in the night, and driving a spare horse for change; but this was no advantage, for i find it is more fatiguing to a horse to be drove than to be rode. you doubtless recollect the man who overtook us on the head of alapausawi, thursday morning. he had left the dalles or long narrows on the columbia on tuesday morning, slept a short time tuesday night below the umatillo, passed by dr. whitman's station, and slept wednesday night on the tukanan, {171} a distance from the dalles of two hundred and forty miles; and the day he passed us he traveled fifty-five miles more.[224] he rode one horse and drove another for change. you will probably even recollect those horses, as they left us upon the round gallop. a man went from this place, starting late, to wallawalla, and returned on the third day, sun two hours high, making the journey in about two days and a half. the whole distance traveled was two hundred and fifty miles, and but one horse was used. none of these horses were injured. cattle, sheep, horses, and hogs feed out through the winter, and continue fat. we very often kill our beef in march, and always have the very best of meat. often an ox from the plains, killed in march, yields over one hundred and fifty pounds of tallow. you have seen two specimens, one killed at dr. whitman's, and one at this place. sheep need the care of a shepherd through the winter, to protect the lambs from the prairie wolves. a band of mares should have a good stud that will herd them and protect the colts from the large wolves. some thirty different kinds of roots grow abundantly upon the plains and bluffs, which, with the grass, furnish the best of food for hogs, and they are always good pork. the south faces of the extensive bluffs and hills are always free from snow, and, cut up into ten thousand little ravines, form the most desirable retreat imaginable for sheep during the winter. here they have the best of fresh grass, and the young lambs, coming regularly twice a year, are protected from the winds and enlivened by the warm sun. we have a flock of sheep belonging to the mission, received from the islands eight years ago; there are now about one hundred and fifty. not one has yet died from disease, a thing of such frequent occurrence in the states. it must certainly become a great wool growing country. i cannot but contrast the time, labor, and expense requisite to look after herds in this country, with that required in the states, especially in the northern and middle states, where two-thirds of every man's time, labor, and money is expended {172} on his animals, in preparing and fencing pasture grounds and meadows, building barns, sheds, stables, and granaries, cutting and securing hay and grains, and feeding and looking to animals through winter. in this country all this is superceded by nature's own bountiful hand. in this country a single shepherd with his horse and dogs can protect and look after five thousand sheep.[225] a man with his horse and perhaps a dog can easily attend to two thousand head of cattle and horses, without spending a dollar for barns, grain, or hay. consider the vast amount of labor and expense such a number of animals would require in the states. were i to select for my friends a location for a healthy happy life, and speedy wealth, it would be this country. timber is the great desideratum. but the country of which i am particularly speaking, extending every way perhaps four hundred miles, is everywhere surrounded by low mountains, which are thickly timbered, besides two or three small ridges passing through it; also the rivers columbia, snake, spokan, paluse, clear water, yankiman, okanakan, salmon, wailua, tukanan, wallawalla, umatillo, john day's and river de shutes; and down most of these timber or lumber can be rafted in any quantities. so that but a very small portion of the country will be over ten or fifteen miles from timber; most of it in the immediate vicinity of timber. the numerous small streams which occur every five or six miles, affording most desirable locations for settlements, contain some cotton wood, alder and thorn. but timber is soon grown from sprouts. the streams everywhere run over a stony bottom, while the soil is entirely free from stone. streams are rapid, affording the best of mill privileges. market, seas and bays the western shores of oregon are washed by the placid {173} waters of the pacific, which bring the 360,000,000 of china, the many millions of the vast indies and of australasia, and lay them at our doors with opening hands to receive our produce; which, with the numerous whale ships that literally whiten the northern pacific, calling not only for provisions, but harbors to winter in, must ever afford one of the most extensive markets in the world for all kinds of produce, and one concerning which there need be but little fear that it will ever be overstocked. a market compared with which, that offered by western europe to the eastern section of the united states, will become as a drop to the bucket. the united states' commercial agent at oahu, sandwich islands, is desirous to make a contract for a certain amount of provisions to be supplied to american shipping every year at oregon city; but as yet the supplies of the country over and above the home consumption, are not sufficient to warrant a dependence of our whale shipping upon the country. in fact for many years, while the united states continue to pour their inhabitants by tens of thousands, every year, into this young republic, the home market must continue in competition with the foreign. but the day is not distant when this country, settled by an industrious, virtuous, sabbath-loving people, governed by wholesome laws, blessed with schools, and the institutions of our holy religion, will hold out abundant encouragements for the numerous whale and merchant ships of the pacific to leave their heavy lading of three years' supply of provisions at home, and depend upon the market in the immediate vicinity of their fishing grounds. others following in their track, learning of this new world, and finding out our ample harbors, soon this little obscure point upon the map of the world will become a second north american republic--her commerce whitening every sea, and her crowded ports fanned by the flags of every nation. from this upper country, a distance of three hundred or four hundred miles, droves of cattle and sheep can be driven to the lower portions of the columbia river, {174} with far less expense and labor than they are driven the same distances in the states, always being in the midst of grass upon which they may feed every night without charge. the principal harbors are puget's sound, mouths of columbia, frazier's, shahales, umpqua, rose and clamet rivers.[226] doubtless others will be discovered, as the country becomes more known. a dangerous bar extends nearly across the mouth of the columbia, leaving but a narrow obscure channel, difficult of access or egress, except with favorable winds. vessels sometimes find it impossible to enter the river by reason of contrary winds; and sometimes are detained in the river two or three months, there not being sea room enough to go out against a head wind. this difficulty could be greatly obviated, and perhaps removed, by a pilot boat. concerning the other rivers i have no certain knowledge, but have been informed that some of them are navigable for vessels from forty to sixty miles, and afford convenient harbors. puget's sound, as before observed, is one of the safest and best harbors in the world, it can be entered or left under any winds and at any season of the year. the scenery around is said to be most enchanting. two lakes near sending off a small stream of pure water. a considerable river runs into the sound, making a fall of some twenty-five feet just as it plunges into the sea, affording the opportunity of building mills upon the wharfs. but very little has been known by americans concerning the extensive country north of the columbia, till last winter. i have several times been told by british subjects that the countries bordering on frazier's river and puget's sound were too sterile for cultivation, and but poor crops could be raised on the cowlitz. whereas, the exploring party who left oregon city, last winter, report that they found a very extensive country north of the columbia river, of apparently good soil, well timbered with pine and oak, and well watered with the following rivers and their tributaries, viz.: the cowlitz, emptying into the columbia river from the north; the shahales, {175} running into a small bay north of the columbia river; the nesqualla, rising near the source of the cowlitz, and running north into puget's sound; frazier's river north of this, and several smaller ones not named. on the cowlitz, nesqualla and frazier's rivers, the hudson bay company have large establishments, and are producing vast quantities of wool, beef, pork, and all kinds of grain, for british whale ships which frequent the harbors. besides these establishments, they have extensive farms and herds at vancouver, in the willamette valley and colvile, and trading posts on vancouver island, and at the mouth of the columbia river, umpqua, vancouver, wallawalla, okanakan and colvile, boise and fort hall, with very many at the north. some of these are strongly fortified, and are being well supplied with cannon and other munitions of war, by almost every ship that arrives. so i have been informed by persons from these ships. with the extensive valley watered by the willamette and its numerous tributaries, you are better acquainted than myself, as i have never visited that country. i cannot, however, deny myself the pleasure of expressing my opinion of the country, formed from information derived yearly from scores of persons who have dwelt long in, or traveled more or less through its extensive territory, at all seasons of the year. on the west the great valley is separated from the pacific by a low range of well timbered mountains, that give rise to numerous streams and small rivers, some of which are lately found sufficient to admit vessels. on the east it is bounded by the cascade or president's range, everywhere abounding with white pine and cedar. the willamette river rises in latitude 42° and runs north and empties itself into the columbia river 85 miles above its mouth. the falls of the willamette are about thirty miles above its mouth, and must ever add a vast interest to the country. the power for mills and machinery that may be erected on each side of the river, and on the island in the middle of the falls, is adequate for almost any conceivable demand. {176} oregon city, situated at the falls on the east side of the river, contains over five hundred souls, about eighty houses, viz.: two churches, two blacksmith shops, one cooper shop, two cabinet shops, four tailor shops, one hatter's shop, one tannery, three shoe shops, two silver smiths, four stores, two taverns, two flouring and two saw mills, and a lathe machine. directly opposite, on the west side, are two towns laid out, and buildings are going up. the face of the country in the willamette valley is rolling, very equally divided into prairie and timbered countries, with frequent oak openings. wheat produces well; corn, potatoes, &c. produce well in some places, and probably would everywhere do well with good cultivation; soil everywhere considered of a superior quality. less snow during the winter season than in the middle district, but much more rain, with fogs, on the low lands during the summer, which render the country less healthy than this middle region; but still the country cannot be considered an unhealthy country. the face of the country is everywhere covered with bunch grass,[227] and animals feed out through the winter, as in the middle region. the rivers umpqua, rose and clamet, which empty into the pacific, south of the columbia, are said to water extensive fertile countries; but as yet very little is known of these regions. ships come up the willamette river within a few miles of oregon city. concerning the road for wagons commenced south of mount hood, and which is to be completed this summer, to be in readiness for the next emigration, you are better acquainted than myself. i am happy to recommend to future emigrants your directions and advice as to the best mode of traveling; number of wagons desirable to travel together; quantity of provisions required for each person; best route; distance to be traveled each day. you will also be able to give the prices for which the hudson bay company sells flour, at forts hall {177} and bois, and for which it is brought from the willamette to the dalles and sold. you are acquainted with the fact that the mission station at this place, and at waiilatpu, have been in the habit of furnishing provisions to immigrants. we are willing to do so as long as there are no other sources of supplies in this vicinity, and therefore seems a duty. but our object in the country is to civilize and christianize the indian tribes among whom we are located. we are stewards of the property of others. we receive no salaries, but simply our living and clothing. we therefore feel it to be our duty to endeavour to make the receipts for provisions sold, net their expenses. for this end, mr. gilbert, a gentleman from new york, has taken charge of the secular affairs of this station, and will furnish provisions to immigrants on the most reasonable terms. he will give you their probable prices, and the names of such things as will be taken in exchange. you have seen the quantity and quality of flour and beef at this place, as also at waiilatpu. yours very sincerely, h. h. spalding. p. s. during last season, commencing 22d of january, i collected and preserved over two thousand different species of flowers, plants and grasses,[228] many of which i think are rare, but i am no botanist. organic laws of oregon (with amendments) _the legislative committee recommend that the following laws be adopted._ preamble we, the people of oregon territory, for purposes of mutual protection, and to secure peace and prosperity among ourselves, agree to adopt the following laws and regulations, until such time as the united states of america extend their jurisdiction over us. be it enacted, therefore, by the free citizens of oregon territory, that the said territory, for purposes of temporary government, be divided into not less than three nor more than five districts, subject to be extended to a greater number when an increase of population shall require. for the purpose of fixing the principles of civil and religious liberty, as the basis of all laws and constitutions of government that may hereafter be adopted-_be it enacted_, that the following articles be considered articles of compact among the free citizens of this territory: article i § 1. no person demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments. {180} § 2. the inhabitants of said territory shall always be entitled to the benefits of the writ of habeas corpus and trial by jury, of a proportionate representation of the people in the legislature, and of judicial proceedings, according to the course of common law. all persons shall be bailable, unless for capital offences, where the proof shall be evident or the presumption great. all fines shall be moderate, and no cruel or unusual punishments shall be inflicted. no man shall be deprived of his liberty but by the judgment of his peers, or the law of the land; and should the public exigencies make it necessary for the common preservation to take any person's property, or to demand his particular services, full compensation shall be made for the same; and in the just preservation of rights and property, it is understood and declared that no law ought ever to be made, or have force in said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, "bona fide" and without fraud previously formed. § 3. religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. the utmost good faith shall always be observed towards the indians; their lands and property shall never be taken from them without their consent; and in their property, rights or liberty they shall never be invaded or disturbed, unless in just and lawful wars, authorised by the representatives of the people; but laws founded in justice and humanity shall, from time to time, be made for preventing injustice being done to them, and for preserving peace and friendship with them. § 4. there shall be no slavery nor involuntary servitude in said territory otherwise than for the punishment of crimes, whereof the party shall have been duly convicted. § 5. no person shall be deprived of the right of bearing arms in his own defence; no unreasonable searches or seizures shall be granted; the freedom of the press shall not be restrained; {181} no person shall be twice tried for the same offence; nor the people deprived of the right of peaceably assembling and discussing any matter they may think proper; nor shall the right of petition ever be denied. § 6. the powers of the government shall be divided into three distinct departments--the legislative, executive, and judicial; and no person, belonging to one of these departments, shall exercise any of the powers properly belonging to either of the others, except in cases herein directed or permitted. article ii § 1. the legislative power shall be vested in a house of representatives, which shall consist of not less than thirteen nor more than sixty-one members, whose numbers shall not be increased more than five at any one session, to be elected by the qualified electors at the annual election, giving to each district a representation in proportion to its population, (excluding indians,) and the said members shall reside in the district for which they shall be chosen; and in case of vacancy by death, resignation or otherwise, the executive shall issue his writ to the district where such vacancy has occurred, and cause a new election to be held, giving sufficient notice at least ten days previously, of the time and place of holding said election. § 2. the house of representatives, when assembled, shall choose a speaker and its other officers, be judges of the qualifications and election of its members, and sit upon its own adjournment from day to day. two-thirds of the house shall constitute a quorum to transact business, but a smaller number may adjourn from day to day, and may be authorised by law to compel the attendance of absent members. § 3. the house may determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two-thirds, expel a member, but not a second time for the same offence; and shall have all powers necessary for {182} a legislature of a temporary government, not in contravention with the restrictions imposed in this organic law. § 4. the house of representatives shall, from time to time, fix the salaries of the different officers appointed or elected under this compact, provided the pay of no officer shall be altered during the term of his service; nor shall the pay of the house be increased by any law taking effect during the session at which such alteration is made. § 5. the house of representatives shall have the sole power of impeaching; three-fourths of all the members must concur in an impeachment. the governor and all civil officers under these articles of compact, shall be liable to impeachment for treason, bribery, or any high crime or misdemeanor in office. judgment in such cases shall not extend further than removal from office, and disqualification to hold any office of honor, trust or profit under this compact; but the party convicted may be dealt with according to law. § 6. the house of representatives shall have power to lay out the territory into suitable districts, and apportion the representation in their own body. they shall have power to pass laws for raising a revenue either by the levying and collecting of taxes, or the imposing license on merchandize, ferries, or other objects--to open roads and canals, either by the levying a road tax, or the chartering of companies; to regulate the intercourse of the people with the indian tribes; to establish post offices and post roads; to declare war, suppress insurrection or repel invasion; to provide for the organizing, arming, and disciplining the militia, and for calling forth the militia to execute the laws of oregon; to pass laws to regulate the introduction, manufacture, or sale of ardent spirits; to regulate the currency and internal police of the country; to create inferior offices necessary and not provided for by these articles of compact; and generally to pass such laws to promote the general welfare of the people of oregon, not contrary to the spirit of this instrument; and all powers not hereby expressly delegated, {183} remain with the people. the house of representatives shall convene annually on the first tuesday in december, at such place as may be provided by law, and shall, upon their first meeting after the adoption of this instrument of compact, proceed to elect and define the duties of a secretary, recorder, treasurer, auditor, marshal, or other officers necessary to carry into effect the provisions of this compact. § 7. the executive power shall be vested in one person, elected by the qualified voters at the annual election, who shall have power to fill vacancies; to remit fines and forfeitures; to grant pardons and reprieves for offences against the laws of the territory; to call out the military force of the country to repel invasion or suppress insurrection; to take care that the laws are faithfully executed, and to recommend such laws as he may consider necessary to the representatives of the people for their action. every bill which shall have been passed by the house of representatives, shall, before it becomes a law, be presented to the governor for his approbation. if he approve, he shall sign it; if not, he shall return it, with his objections, to the house, and the house shall cause the objections to be entered at large on its journals, and shall proceed to reconsider the bill; if, after such reconsideration, a majority of two-thirds of the house shall agree to pass the same, it shall become a law. in such cases the vote shall be taken by ayes and noes, and be entered upon the journal. if any bill shall not be returned by the governor to the house of representatives within three days (sundays excepted) after it shall have been presented to him, the same shall become a law in like manner as if the governor had signed it, unless the house of representatives, by its adjournment, shall prevent its return; in which case it shall not become a law. the governor shall continue in office two years, and until his successor is duly elected and qualified; and in case of the office becoming vacant by death, resignation, or otherwise, the secretary shall exercise the duties of the office until the vacancy shall be filled by {184} election. the governor shall receive the sum of dollars per annum, as full compensation for his services, which sum may be increased or diminished at any time by law, provided the salary of no governor shall be altered during his term of service. the governor shall have power to convene the legislature on extraordinary occasions. § 8. the judicial power shall be vested in a supreme court, and such inferior courts of law, equity, and arbitration, as may, by law from time to time be established. the supreme court shall consist of one judge, who shall be elected by the house of representatives, and hold his office for four years, and until his successor is duly elected and qualified. the supreme court, except in cases otherwise directed by this compact, shall have appellate jurisdiction only, which shall be co-extensive with this territory, and shall hold two sessions annually, beginning on the first mondays in june and september, and at such places as by law may be directed. the supreme court shall have a general superintending control over all inferior courts of law. it shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, and other original remedial writs, and hear and determine the same. the supreme court shall have power to decide upon and annul any laws contrary to the provisions of these articles of compact, and whenever called upon by the house of representatives, the supreme judge shall give his opinion touching the validity of any pending measure. the house of representatives may, hereafter, provide by law for the supreme court having original jurisdiction in criminal cases. § 9. all officers under this compact, shall take an oath, as follows, to wit: i do solemnly swear, that i will support the organic laws of the provisional government of oregon, so far as said organic laws are consistent with my duties as a citizen of the united states, or a subject of great britain,[229] and faithfully demean myself in office. so help me god. § 10. every free male descendant of a white man, inhabitant {185} of this territory, of the age of twenty-one years and upwards, who shall have been an inhabitant of this territory at the time of its organization, shall be entitled to vote at the election of officers, civil and military, and be eligible to any office in the territory, provided, that all persons of the description entitled to vote by the provisions of this section, who shall emigrate to this territory after its organization, shall be entitled to the rights of citizens after having resided six months in the territory. § 11. the election for all civil officers, provided for by this compact, shall be held the first monday in june annually. article iii--land law § 1. any person now holding, or hereafter wishing to establish a claim to land in this territory, shall designate the extent of his claim by natural boundaries, or by marks at the corners and upon the lines of such claim, and have the extent and boundaries of said claim recorded in the office of the territorial recorder, in a book to be kept by him for that purpose, within twenty days from the time of making said claim: provided, that those who shall be already in possession of land, shall be allowed twelve months from the passage of this act to file a description of his claim in the recorder's office: and provided further, that the said claimant shall state in his record, the size, shape, and locality of such claim, and give the names of the adjoining claimants; and the recorder may require the applicant for such record to be made to answer, on his oath, touching the facts. § 2. all claimants shall, within six months from the time of recording their claims, make permanent improvements upon the same, by building or enclosing, and also become an occupant upon said claim within one year from the date of such record, or in case not occupied, the person holding said claim shall pay into the treasury the sum of five dollars annually, and in case of failure to occupy, or on failure of payment of {186} the sum above stated, the claim shall be considered as abandoned: provided, that no non-resident of this territory shall have the benefit of this law: and, provided further, that any resident of this territory, absent on private business for two years, may hold his claim by paying five dollars annually to the treasury. § 3. no individual shall be allowed to hold a claim of more than one square mile, or six hundred and forty acres, in a square or oblong form, according to the natural situation of the premises. nor shall any individual be allowed to hold more than one claim at the same time. any person complying with the provisions of these ordinances, shall be entitled to the same recourse against trespass as in other cases by law provided. § 4. partnerships of two or more persons shall be allowed to take up a tract of land not exceeding six hundred and forty acres to each person in said partnership, subject to all the provisions of the law; and whenever such partnership is dissolved, the members shall each record the particular parts of said tract as may be allotted to him: provided that no member of said partnership shall hold a separate claim at the time of the existence of said partnership. § 5. the boundary lines of all claims shall hereafter conform, as near as may be, to the cardinal points. § 6. the officers elected at the general election, held on the first tuesday in june, 1845, shall be the officers to act under this organic law, and their official acts, so far as they are in accordance with this compact, are hereby declared valid and legal. § 7. amendments to this instrument may be proposed by the house of representatives, two-thirds of the members concurring therein; which amendments shall be made public in all parts of oregon, and be read at the polls at the next succeeding general election, and a concurrence of two-thirds of all {187} the members elected at said election, may pass said amendments, and they shall become a part of this compact. * * * * * certificate i, john e. long,[230] secretary of oregon territory, do hereby certify, that the foregoing is a true and correct copy of the original law, as passed by the representatives of the people of oregon, on the fifth day of july, a. d. 1845, and submitted to the people on the twenty-sixth day of the same month, and by them adopted and now on file in my office. j. e. long, _secretary_. n. b. at the december session, 1845, of the house of representatives, two-thirds of the members concurring therein, the following amendments to the organic law were proposed, to wit: strike out in the 4th section of said law, the words "or more." also, to amend the land law so as to "permit claimants to hold six hundred acres in the prairie, and forty acres in the timber, though said tracts do not join." ardent spirits an act to prevent the introduction, sale, and distillation of ardent spirits in oregon. § 1. _be it enacted by the house of representatives of oregon territory_, that if any person shall hereafter import or introduce any ardent spirits into oregon, with intent to sell, barter, give, or trade the same, and shall offer the same for sale, trade, barter, or gift, he shall be fined the sum of fifty dollars for each and every such offence, which may be recovered by indictment, or by trial before a justice of the peace, without the form of pleading. § 2. that if any person shall hereafter sell, barter, give, or trade any ardent spirits of any kind whatever, directly or indirectly, to any person within oregon, he shall forfeit and pay {188} the sum of twenty dollars for each and every such sale, trade, barter, or gift, to be recovered by indictment in the county court, or before a justice of the peace, without the form of pleading. § 3. that if any person shall hereafter establish or carry on any manufactory or distillery of ardent spirits in oregon, he shall be subject to be indicted before the county court, as for a nuisance, and if convicted, he shall be fined the sum of one hundred dollars; and the court shall issue an order to the sheriff, directing him to seize and destroy the distilling apparatus, which order the sheriff shall execute. § 4. whenever it shall come to the knowledge of any officer of this government, or any private citizen, that any kind of spirituous liquors are being distilled or manufactured in oregon, they are hereby authorised and required to proceed to the place where such illicit manufacture is known to exist, and seize the distilling apparatus, and deliver the same to the nearest district judge or justice of the peace, whose duty it shall be immediately to issue his warrant, and cause the house and premises of the person against whom such warrant shall be issued to be further searched; and in case any kind of spirituous liquors are found in or about said premises, or any implements or apparatus that have the appearance of having been used or constructed for the purpose of manufacturing any kind of spirituous liquors, the officer who shall have been duly authorised to execute said warrant, shall seize all such apparatus, implements, and spirituous liquors, and deliver the same to the judge or justice of the peace who issued the said warrant; said officer shall also arrest the person or persons in or about whose premises such apparatus, implements, or spirituous liquors are found, and conduct him or them to said judge or justice of the peace, whose duty it shall be to proceed against such criminal or criminals, and dispose of the articles seized, according to law. § 5. all fines and penalties imposed under this act, shall go, {189} one-half to the informant and witnesses, and the other half to the officers engaged in arresting and trying the criminal or criminals; and it shall be the duty of all officers into whose hands such fines and penalties may come, to pay over as directed in this section. § 6. this act shall not be so construed as to prevent any practising physician from selling such liquors for medicine, not to exceed half a pint at one time. § 7. that it shall be the duty of the secretary to publish this act in the first newspaper printed in oregon. * * * * * certificate i, john e. long, secretary of oregon, do hereby certify, that the foregoing act on ardent spirits, is truly and correctly revised by me. j. e. long, _secretary_. footnotes: [1] oregon territory, which under the treaty of 1818 was held in joint occupation by the united states and great britain, had been brought into prominence by the presidential campaign of 1844, and the belligerent message of president polk at his inauguration in march, 1845. emigration thither for the year 1845 exceeded that of any previous season and consisted of nearly three thousand persons, largely from missouri and the frontier states of the old northwest.--ed. [2] blue river, in central indiana, flowing through rush and shelby counties, is part of the white river system.--ed. [3] for a note on the founding of indianapolis see our volume ix, p. 190, note 100.--ed. [4] mount meridian is a small village in jefferson township, putnam county, indiana. it was laid out in 1833 and at first named carthage.--ed. [5] for st. charles see our volume v, p. 39, note 9.--ed. [6] by the term "lute creek," palmer intends loutre river, rising in northeast callaway county, and flowing south and southwest through montgomery county into the missouri, at loutre island. see our volume v, p. 47, note 19.--ed. [7] williamsburgh, a village in the township of nine mile prairie, callaway county, was laid out in 1836. for fulton see our volume xxi, p. 131, note 7.--ed. [8] columbia and rocheport are noted in our volume xxi, p. 133, note 8; boonville, _ibid._, p. 89, note 59. palmer probably crossed the missouri at boonville. townsend went by a similar route from st. louis to boonville. see his _narrative_ in our volume xxi, pp. 125-134.--ed. [9] marshall was in 1839 set off as the county seat of saline, and in 1900 had a population of 5086. it was named in honor of the chief justice of the united states, who died shortly before the incorporation of the town.--ed. [10] for independence see our volume xix, p. 189, note 34. gregg gives a much fuller description of this town as an outfitting place, than does our present author; _ibid._, pp. 188-192.--ed. [11] on the bounds of this territory, see our volume xxi, p. 50, note 31.--ed. [12] walkarusa creek rises in several branches in wabaunsee county, and flows east through shawnee and douglas into kansas river. the crossing of the oregon trail was almost directly south of lawrence. the trail thence followed the divide between the creek and river to about the present site of topeka. during the free soil troubles in kansas, a bloodless campaign (1855) along this creek toward lawrence was known as the "walkarusa war." kansas river is noted in our volume xiv, p. 174, note 140.--ed. [13] for the kansa indians see our volume v, p. 67, note 37; also our volume xxviii, p. 140, note 84. wyeth notes their village in his _oregon_, our volume xxi, pp. 48, 49.--ed. [14] for this stream see de smet's _letters_ in our volume xxvii, p. 197, note 74.--ed. [15] this was probably a local publication of the journal or notes of william gilpin, who went to oregon with frémont's party in 1843. gilpin was a pennsylvanian, appointed cadet at west point in 1834. two years later he became lieutenant in the 2nd dragoons, and saw frontier service, resigning from the army in 1838. he accompanied frémont as far as the dalles of the columbia, and passed the winter of 1843-44 in the willamette valley, returning overland to the states in 1844. as an intelligent observer his reports on the oregon country were much sought (see _niles' register_, lxvii, p. 161). gilpin afterwards served in the mexican war, and earnestly urged the building of a pacific railway. in 1861 he was appointed first territorial governor of colorado, in recognition of "his services as an explorer of the great west," and lived until 1894.--ed. [16] stephen hall meek was a brother of colonel joseph meek so well known as an oregon pioneer (see our volume xxviii, p. 290, note 171). stephen began his career as a trapper under captain bonneville in 1832, and accompanied joseph walker to california in 1833-34. he was in the willamette valley in 1841, where he purchased of dr. john mcloughlin the first lot sold on the site of oregon city. in 1842 he guided the emigrant caravan from fort laramie. his unfortunate experience in attempting a "cut off" with a party of emigrants in 1845 (related _post_ by palmer), discredited his abilities as a guide. at the time of the gold excitement (1848-49) he returned to california, where he made his later home in siskiyou county.--ed. [17] little is known of dr. presley welch save as related by palmer--that he was from indiana, was chosen captain of the caravan, and was without authority after the formation of the independent companies. h. h. bancroft (_history of oregon_, i, p. 612) notes that he was candidate for governor in 1846. george h. himes, assistant secretary of the oregon historical society, writes to the editor: "in all my efforts to make a roll of pioneers by years, i have not so far been able to find anything about dr. welch; hence i conclude he either left the country at an early date or died soon after his arrival here."--ed. [18] for this stream see our volume xxi, p. 149, note 20. townsend also describes the same kansa village, _ibid._, pp. 148, 149.--ed. [19] the big vermillion is now known as the black vermillion, an eastern tributary of the big blue, in marshall county, kansas. the usual crossing was near the site of the present town of bigelow. bee creek is a small stream in marshall county. the big blue is noted in our volume xiv, p. 185, note 154; also in our volume xxi, p. 142, note 15.--ed. [20] for a biographical note on colonel stephen w. kearny see our volume xvii, p. 12, note 4. in the summer of 1845 the general of the army ordered kearny to take five companies of dragoons and proceed from fort leavenworth via the oregon trail to south pass, returning by way of the arkansas and the santa fé trail. the object was both to impress the indians, and to report upon the feasibility of an advanced military post near fort laramie. leaving their encampment may 18, they were upon the little blue by the twenty-sixth of the month. see report in _senate docs._, 29 cong., 1 sess., 1, pp. 210-213. this was the first regular military campaign into the land of the great west, and strongly impressed the indians of that region. kearny's recommendations were against the establishment of a post because of the difficulty of supplying it--advising instead, a biennial or triennial campaign similar to his own.--ed. [21] by the "republican fork of blue river" palmer intends the stream known usually as the little blue. republican river, farther west, is an important branch of kansas river, and for a portion of its course nearly parallels the little blue. the oregon trail, however, followed the latter stream, and the distances given by palmer preclude the possibility of a detour via the republican river. the name of this stream, as well as that applied by palmer to the little blue, is derived from the tribe of republican pawnee, for which see our volume xiv, p. 233, note 179.--ed. [22] there were two routes across from the head of little blue river to the platte. the first left the trail near the site of leroy, nebraska, and came in to the platte about twenty miles below grand island; the second continued farther west, about ten miles, then crossed northwest to the platte near the site of fort kearney. see military map of nebraska and dakota, prepared in 1855-57 by lieutenant g. k. warren of the topographical engineer corps. for the platte river see our volume xiv, p. 219, note 170.--ed. [23] for this tribe, see our volume vi, p. 61, note 17; also our volume xv, pp. 143-165; and xxviii, p. 149, note 94.--ed. [24] thomas fulton stephens joined the oregon caravan from illinois. the year after his arrival in oregon he took up donation land near the site of portland and erected thereon a saw-mill. his death occurred in 1884.--ed. [25] john foster was born in ohio in 1822, removed to missouri in early life, and in 1897 was still residing in oregon.--ed. [26] orville risley was born in new york state about 1807. in early life he removed to ohio, where he joined the oregon emigrants of 1845. upon reaching the willamette valley he took up land in clackamas county, and later was a merchant at lafayette. in his last years he resided principally at portland, where he was known as judge risley, from having once held the office of justice of the peace. his death occurred at his clackamas farm in 1884.--ed. [27] for the fords of the south platte see our volume xxi, p. 173, note 27.--ed. [28] ash hollow, called by frémont coulée des frênes, was a well known landmark, where the oregon trail crossed the north platte. it is now known as ash creek, in deuel county, nebraska.--ed. [29] spring creek was probably the one now known as rush, formed by springs issuing in cheyenne county, nebraska. the second creek was that now entitled pumpkinseed. in the days of trail-travelling it was called gonneville, from a trapper who had been killed thereon. the solitary tower is on its bank--a huge mass of indurated clay, more frequently known as the court house or the castle.--ed. [30] for a note on chimney rock consult de smet's _letters_ in our volume xxvii, p. 219, note 89. see also engraving in frémont's "exploring tour," _senate docs._, 28 cong., 2 sess., 174, p. 38.--ed. [31] this story is told with variations by many writers, notably washington irving in his _rocky mountains_ (philadelphia, 1837), i, pp. 45, 46. the event appears to have occurred about 1830. the range of bluffs, about nine hundred yards in length, still retains the name. it is situated on the western borders of nebraska, in a county of the same name.--ed. [32] the usual habitat of the dakota or sioux was along the missouri river or eastward. the teton sioux were in the habit of wandering westward for summer hunts, and this was probably a band of the oglala or brulé teton, who frequently were encountered in this region. for the teton subdivisions see our volume xxii, p. 326, note 287.--ed. [33] the succession of trading posts on the laramie branch of platte river is somewhat confusing, due to differences in nomenclature. consult our volume xxi, p. 181, note 30. the fort here described appears to be the new fort laramie (which must thus have been built in 1845, not 1846). alexander culbertson, who was at one time in command for the american fur company, says that this post cost $10,000, and was the best built stronghold in the company's possession. fort john was the old american fur company's post. how a rival company had secured it, seems a mystery; possibly palmer has confused it with fort platte, which frémont notes in 1842 at the mouth of the laramie, belonging to sybille, adams, and company. see his "exploring tour" (cited in note 30, _ante_), p. 35.--ed. [34] since the above was written, the north american fur company has purchased fort john, and demolished it.--palmer. [35] the trail lay back from the river, for some distance above fort laramie. big spring was frequently known as warm spring, and the coulée, in laramie county, wyoming, still retains the name of warm spring cañon.--ed. [36] on the general use of the term black hills see our volume xxiii, p. 244, note 204. the stream called fourche amère (bitter fork) by frémont is now known simply as cottonwood creek.--ed. [37] retaining the same name, horseshoe creek is a considerable wooded stream in western laramie county, wyoming.--ed. [38] this is now known as lower platte cañon, and is traversed by the wyoming branch of the colorado and southern railway.--ed. [39] big timber creek was called la fourche boisée by frémont; more frequently it was known by the name it still retains--la bonté creek, in converse county, wyoming. the cut-off recommended by palmer would be by way of elkhorn creek and an affluent of la bonté.--ed. [40] deer creek is the largest southern affluent of the platte, between the laramie and the sweetwater. it is well-timbered, and its mouth was a familiar camping place on the oregon trail. it is in the western part of converse county, wyoming, about 770 miles from the starting point at independence.--ed. [41] the best ford in this stretch of the river; it averaged only about three feet in depth at the ordinary stage of water, and its width varied from eight hundred to fifteen hundred feet. it was a little above the present town of casper, wyoming.--ed. [42] the mineral spring was usually called red spring, near poison spider creek, and shows traces of petroleum. for a description of red buttes see our volume xxi, p. 183.--ed. [43] for independence rock and sweetwater river see our volume xxi, p. 53, notes 33, 34.--ed. [44] for this gap, or cañon, see de smet's _letters_ in our volume xxvii, p. 241, note 113.--ed. [45] the wind river mountains are noted in our volume xxi, p. 184, note 35. the trail along the sweetwater is for the most part over a rough, undulating prairie, but at times the hills force the road close to the river valley. at one place, about thirty-six miles above the river's mouth, the route grows rugged and crosses the river three times. this was usually known as the three crossings, and is probably the stretch that palmer calls the narrows.--ed. [46] joseph r. walker was born (1798) in tennessee. in early life he migrated to the missouri frontier, and for many years was a trapper and trader in the direction of santa fé. once he was captured by the mexicans, and afterwards participated in a battle between them and the pawnee indians. in 1832 captain bonneville secured walker as a member of his trading party, and the following year sent him on an expedition that explored a route from salt lake to california, through walker's pass, which took its name from this explorer. on this journey he claimed first of any american to have seen the yosemite. his knowledge of the west brought his services in demand as a guide or pilot. in 1843 he led out a small party of emigrants. from bridger's fort, whither he was going when met by palmer, he joined frémont's third exploring expedition, and was sent forward with a portion of the party by his former route of 1833. the junction with his chief's party was made after the latter's visit to monterey. walker, however, did not remain to take part in the events that led to the american conquest of california, but started back to the states with a drove of california horses for sale, and was again at fort bridger in july, 1846. for twenty years longer he continued his vagrant life in the mountains, finally settling (1866-67) in contra costa county, california, where he died in 1876.--ed. [47] for south pass and green river see our volume xxi, pp. 58-60, notes 37, 38. the springs were known as pacific springs, running into a creek of that name, affluent of the big sandy in frémont county, wyoming.--ed. [48] the dry branch is known as dry sandy creek. for the little sandy see our volume xxi, p. 187, note 36.--ed. [49] this was known as sublette's cut-off; see de smet's _letters_ in our volume xxvii, p. 242, note 115.--ed. [50] at this point, green river bears considerably east of south, the trail therefore turns southwest, striking black fork of green, not far from the present granger, wyoming, at the junction of the union pacific and oregon short line railways. black fork rises in the extreme southeastern corner of wyoming, flows northeast, thence east and southeast, entering the green in sweetwater county. it is a shallow, somewhat sluggish stream, passing through an alkaline country.--ed. [51] the site of fort bridger was chosen by its founder as the best station for trade with emigrants following the oregon trail. its building (1843) marked an epoch in western emigration, showing the importance of trade with the increasing number of travellers. the place was an oasis in the desert-like neighborhood, the stream of black fork coming from the unita mountains, and in this wooded valley dividing into several branches. in 1854 bridger sold his post to a mormon named lewis robinson, who maintained it until 1858, when united states troops wintering during the mormon campaign built at this site a government post, also known as fort bridger, which was garrisoned about twenty years longer. for bridger, the founder, see de smet's _letters_, in our volume xxvii, p. 299, note 156. his partner was louis vasques (not bascus), a mexican who for many years had been a mountain man. for some time he was in partnership with sublette in a trading post on the south platte. about 1840 he entered into partnership with bridger, and is remembered to have lived with some luxury, riding about the country near fort bridger in a coach and four. see wyoming historical society _collections_, i, p. 68.--ed. [52] for the snake (shoshoni) indians, see our volume v, p. 227, note 123. the paiute are referred to in our volume xviii, p. 140, note 70; also in de smet's _letters_, in our volume xxvii, pp. 165, 167, notes 35, 38.--ed. [53] by the little muddy, palmer refers to the stream now known as the muddy, a branch of black fork, which would be reached in about eight miles from fort bridger, by travelling northwest. palmer's "big muddy" is the stream usually known as ham's fork, for which see our volume xxi, p. 197, note 43.--ed. [54] the divide between the waters of green and bear river may be crossed at several points. its altitude is about eight thousand feet, and all travellers speak of the wide view. the mountains to the west are those of the bear river range, running between the arms of the river, for which see our volume xxi, p. 199, note 44.--ed. [55] the upper road from green river, usually known as sublette's road, comes across by way of crow creek, a branch of ham's fork, and sublette creek, a tributary of the bear. smith's fork comes almost directly from the north, its headwaters nearly interlacing with salt river branch of lewis (or snake) river. it enters bear river quite near the dividing line between wyoming and idaho.--ed. [56] the first crossing of bear river is just above the mouth of thomas's fork. for a detailed map of this stretch of the road see frémont's "exploring tour" (_op. cit._ in note 30), p. 132.--ed. [57] the big hill is just beyond the bend of the bear, below thomas's fork, and the nearest approach the road makes to the valley of bear lake. this lake is evidently the remains of one that occupied a much larger area, as the marshes at its upper end signify. it now measures about nineteen miles in length, with an average width of six, and a depth of from forty to sixty feet. the lower portion of the lake is in utah and the upper in idaho. its waters are noted for their exquisite blue tint.--ed. [58] for the location of these springs see our volume xxi, p. 200, note 45.--ed. [59] a map of these springs can be found in frémont's "exploring tour" (_op. cit._ in note 30), p. 135. steamboat spring is a miniature geyser, an analysis of whose waters is given by frémont, p. 136.--ed. [60] for a brief note on salt lake see our volume xxi, p. 199, note 44.--ed. [61] the entire route from soda springs at the bend of bear river to fort hall was about fifty miles in length, crossing the basaltic, volcanic plateau which palmer describes, to the waters of portneuf river, down which the trail passed to fort hall. for the founding of this post see townsend's _narrative_, in our volume xxi, pp. 209-211.--ed. [62] captain james grant was hudson's bay factor in charge at fort hall for several years during the immigration movement. most of the travellers speak of his courtesy and readiness to assist. he was at this post in 1842, when matthieu describes him as a large man, resembling dr. mcloughlin--_oregon historical quarterly_, i, p. 84. he seems to have later settled in oregon.--ed. [63] for a brief description of snake (or lewis) river, see our volume xxviii, p. 303, note 179.--ed. [64] this attempt to deflect oregon immigrants to california arose from the unsettled conditions in that mexican province, and the determination of earlier american settlers to secure california for the united states. caleb greenwood, who was sent to fort hall from sutter's fort (sacramento), was an aged mountaineer and trapper, who reared a half-breed family by a wife of the crow tribe. in 1844 he guided the stevens party to california, and during the winter of 1844-45 served in sutter's division of micheltorena's army against alvarado and castro. sutter wrote in regard to his mission, "i am glad that they meet with some good pilots at fort hall who went there from here to pilot emigrants by the new road."--ed. [65] george mcdougall was a native of ohio, but started on his journey from indiana. he conducted the advance party of young men known as the swasey-todd party, over the truckee route to sutter's, leaving fort hall about august 13, and arriving at new helvetia late in september. mcdougall served the next year in the california battalion, and was known to have been at san francisco in 1847-48. he several times returned east, and after 1853 became a confirmed wanderer, being found in patagonia in 1867. he is thought to have died at washington, d. c., in 1872. he was eccentric, but brave, and a favorite with the frontier population. many of the emigrants who turned off at fort hall for california went overland to oregon the next year. consult h. h. bancroft, _history of oregon_ (san francisco, 1886), i, p. 522.--ed. [66] the writer has recently learned that the emigrants alluded to, not finding california equal, in point of soil, to their high wrought anticipations, have made the best of their way to oregon.--palmer. [67] for another description of portneuf (not portneth) river see de smet's _letters_ in our volume xxvii, p. 249, with accompanying note.--ed. [68] these falls derive their name from the following circumstance. a number of american trappers going down this stream in their canoes, not being aware of their proximity to the falls, were hurried along by the violence of the current; and passing over the falls, but one of the number survived.--palmer. [69] the trail from fort hall led down the eastern and southern bank of the lewis; see our volume xxviii, p. 310, note 190. american falls is a well-known landmark, flowing over a rock about forty feet in height; see frémont's "exploring tour" (_op. cit._ in note 30), p. 164, for an engraving thereof. the once barren land of this region is now being made fertile by irrigation.--ed. [70] fall creek, in oneida county, so called by frémont, and still known by this name. its bed is composed of calcareous tufa, chiefly the remains of reeds and mosses, forming a beautiful succession of cascades.--ed. [71] cassia creek is an important western affluent of raft river, of cassia county, idaho. upon its banks was the earliest settlement in this region, and the valley is still noted for its farms. the first party to take this route to california was that of j. b. chiles (1843), guided by joseph walker. they struck across from the snake to humboldt river, down that stream to its sink, and by the walker pass into california. in 1844 the stevens party followed a similar route; crossing the sierras, however, by truckee and bear river road, the line of the present central pacific railway.--ed. [72] called by frémont swamp creek, now known as marsh creek, a small southern affluent of the lewis. it forms a circular basin or valley, about six miles in diameter, where there was grass and consequently a good camping place.--ed. [73] goose creek is a deep, rocky stream rising in goose creek range, lying on the border between idaho and utah. the creek flows north, receiving several branches before entering the lewis in cassia county. placer mines of considerable value have been found on this creek.--ed. [74] dry creek is still to be found on the maps of cassia county. frémont says of this portion of the trail: "all the day the course of the river has been between walls of black volcanic rock, a dark line of the escarpment on the opposite side pointing out its course, and sweeping along in foam at places where the mountains which border the valley present always on the left two ranges, the lower one a spur of the higher; and on the opposite side, the salmon river mountains are visible at a great distance." (see _op. cit._, _ante_, in note 30, p. 167.)--ed. [75] the falls mentioned by palmer are the great shoshone falls of the lewis river, where the cañon is over eight hundred feet deep: the first fall has a plunge of thirty feet, and then a sheer descent of a hundred and ninety. these are, in the united states, exceeded in grandeur only by niagara and the yosemite. palmer's failure to appreciate their height and magnificence was probably due to the depth of the cañon from the top of which he viewed them; or he may not have seen the lower falls at all, for the trail wound back from the river in many places. rock creek is a considerable stream, with a swift current, flowing northwest into the lewis in cassia county, idaho.--ed. [76] salmon falls river is the largest southern affluent of the lewis that has been crossed since leaving fort hall. it rises in many branches on the boundaries of nevada and flows north through a valley now noted as a hay-and stock-raising section. salmon falls (also called fishing falls) is a series of cataracts with sharply inclined planes, forming a barrier to the ascent of the salmon, and thus a fishing resort for indians.--ed. [77] for this crossing see our volume xxviii, p. 314, note 193.--ed. [78] the emigrants were in elmore county, idaho, where a number of small streams come from the north into lewis river; one is known as cold spring creek, possibly the branch mentioned by palmer.--ed. [79] for these springs see farnham's _travels_ in our volume xxviii, p. 314, note 194.--ed. [80] for boise river see our volume xxi, p. 249, note 63. the trail approached this stream near the present site of boise city, and followed its banks to lewis river.--ed. [81] for a brief sketch of fort boise see farnham's _travels_ in our volume xxviii, p. 321, note 199.--ed. [82] this northern and more direct route was followed by wyeth in 1834--see townsend's _narrative_ in our volume xxi, pp. 231-249. he found the difficulties of the passage great, and the longer and more southern route was the one usually followed.--ed. [83] for malheur river see our volume xxi, p. 264, note 64. the hot springs are noted in our volume xxviii, p. 323, note 202.--ed. [84] for a brief sketch of the life of dr. elijah white see farnham's _travels_ in our volume xxix, p. 20, note 12. he was at this time returning to washington to secure the settlement of his accounts as indian sub-agent, and with the hope of securing further preferment--if possible, the governorship of oregon. he was the bearer of a memorial from the provisional government of oregon, requesting congress to extend the sovereignty and laws of the united states over the oregon settlements. see _cong. globe_, 29 cong., 1 sess., p. 24. later advices from oregon, however, frustrated the plans of dr. white, who was retired to private life. on his return his companions across the plains (1845) were william chapman and orris brown of the immigration of 1843, and joseph charles saxton of 1844. only brown returned to oregon; he went back in 1846 accompanied by his own family, and that of his mother, mrs. tabitha brown, who was connected with the history of early education footnote: in oregon. the brown family settled at forest grove, the immigrant of 1843 finally dying at salem in 1874. white, in his _ten years in oregon_ (new york, 1859), p. 282, speaks of meeting a party (palmer's) near fort boise, who brought him important letters, including one from his wife, the first received in fifteen months.--ed. [85] birch creek (rivière aux bouleaux) rises in burnt river mountains and flows southeast into lewis river, in malheur county, oregon.--ed. [86] for burnt river and the course of the trail through its valley see townsend's description in our volume xxi, pp. 267, 268.--ed. [87] for powder river see our volume xxi, p. 268, note 68. the mountains seen were the blue; see a brief description in _ibid._, p. 273, note 71.--ed. [88] pronounced kiwaw or kioose.--palmer. _comment by ed._ for the cayuse see our volume vii, p. 137, note 37. [89] for the valley of grande ronde see our volume xxi, p. 271, note 69. consult on camas, _ibid._, p. 247, note 61.--ed. [90] this northern valley is the lower portion of the grande ronde. frémont says: "we passed out of the grand rond by a fine road along the creek, which, for a short distance, runs in a kind of rocky chasm. crossing a low point, which was a little rocky, the trail conducted into the open valley of the stream--a handsome place for farms." (_op. cit._ in note 30, p. 179.) this is now the most flourishing settlement in eastern oregon with a railway running through the valley to elgin.--ed. [91] probably this was the cayuse chief tiloukaikt, who had early come under dr. whitman's influence, but nevertheless was treacherous, and unstable in his professions of christianity. in 1841 he had insulted dr. whitman because of the punishment of one of his nephews by a missionary teacher. in 1843 he entered into the treaty with some reluctance, and in 1847 was one of the principals concerned in the whitman massacre. the following year he was one of the five chiefs who gave themselves up to the civil authorities, and he paid the penalty of his murderous instincts upon the scaffold.--ed. [92] for the nez percés see franchère's _narrative_ in our volume vi, p. 340, note 145.--ed. [93] for whitman and spaulding see our volume xxi, p. 352, note 125.--ed. [94] on the crossing of blue mountains compare our volume xxviii, p. 328, note 206.--ed. [95] for the location of these peaks see our volume vi, pp. 246, 248, notes 50 and 54 respectively. lee's encampment was the place upon which henry a. g. lee had waited for the immigrants of 1844. lee, who was a member of the train of 1843, was commissioned by dr. elijah white as indian sub-agent to encounter the party of 1844 among the cayuse and assist in the trading between indians and immigrants, and thus protect both parties. the policy did not prove successful; see lee's own letter on the subject in _oregon historical quarterly_, v, p. 300. lee emigrated from the southwestern states, and immediately became a leader in oregon politics. he was elected to the legislature of 1845, and was an officer in the cayuse war of 1847-48, during which he was appointed indian agent to succeed general joel palmer. the following year he resigned his office, and soon thereafter left for the california gold mines. he returned to oregon to enter the mercantile business; but died on a voyage to new york in 1850.--ed. [96] for the umatilla river see our volume vi, p. 338, note 141. the indian village was probably that of five crows, who in 1843 was elected head-chief of the cayuse. his baptismal name was hezekiah, and he took no active part in the whitman massacre (1847); nevertheless he did nothing to prevent its occurrence and secured the person of some of the prisoners, notably a miss bewley, whom he took as a wife. five crows afterwards was active in the cayuse war (1878), in which he was severely wounded.--ed. [97] for mrs. whitman see our volume xxi, p. 355, note 128.--ed. [98] mary ann bridger and helen mar meek, half-breed children of james bridger and joseph meek, were brought to the whitmans before 1842; also a half-breed spanish boy, david malin. the migration of 1843 left with mrs. whitman two motherless english girls, ann and emma hobson; while in 1844 seven children of the sager family, both of whose parents had died en route across the plains, were adopted by the whitmans. of these children the two eldest sager boys were killed during the massacre; the half-breed girls and one of the sager girls died a few days later, from exposure and fright.--ed. [99] for the wallawalla indians see our volume vii, p. 137, note 37.--ed. [100] probably willow creek, which drains morrow county and affords water for stock-raising and sheep-pasturage. late in the year, when palmer passed, the stream was dry. the sandy margin along the columbia from the mouth of umatilla river to the dalles, has always been an annoyance to traffic. sand frequently drifts over the railway track in this region.--ed. [101] for a brief note on john day river see our volume xxi, p. 357, note 129.--ed. [102] for this river see our volume vii, p. 133, note 32; also our volume xxviii, p. 354, note 222.--ed. [103] for the dalles and the mission there located, consult our volumes xxi, p. 285, note 77; xxviii, pp. 355, 357, notes 223, 226.--ed. [104] samuel kimborough barlow was of scotch descent, the son of a kentucky pioneer. born (1795) in nicholas county, in that state, he removed to indiana (1818), where he married susanna lee of south carolina. a further move to fulton county, illinois, paved the way for emigration to oregon in 1845. arrived in oregon city, christmas of that year, barlow kept a hotel there until 1848, when he bought land in clackamas county of thomas mckay. later (1852), he removed to canemah, just above oregon city, where he died in 1867. he was public-spirited and active in the affairs of the new commonwealth. for an account of the road constructed over the trail made in 1845, see mary s. barlow, "history of the barlow road," in _oregon historical quarterly_, iii, pp. 71-81. h. m. knighton was second marshal of oregon under the provisional government, and sergeant-at-arms of the house of representatives of 1846. he lived at oregon city, where he kept an inn. in 1848 he was settled at st. helens.--ed. [105] moses harris, usually called black harris, was a well-known scout and trapper who came to oregon with the emigrant train of 1844. see an amusing story concerning harris, related by peter h. burnett in his "recollections," in _oregon historical quarterly_, iii, p. 152. while in oregon harris joined several exploring expeditions, notably that of dr. elijah white (1845) and that of levi scott (1846) in the attempt to find a shorter route from lewis river to the willamette valley. in 1846 harris again went to the rescue of the emigrants who were trying a new route into oregon; the following year, however, he returned to the states, dying at independence, missouri.--ed. [106] for other brief descriptions of the experiences of meek's party, see h. h. bancroft, _history of oregon_, i, pp. 512-516, this latter being founded upon manuscript accounts, notably that of samuel hancock, a transcript of which is in the possession of professor joseph schafer of the university of oregon, who has kindly loaned it to the present editor. consult also oregon pioneer association _transactions_, 1877, pp. 50-53; 1895, p. 101.--ed. [107] there had been an indian trail through the cascades up the fork of the santiam river, and over what is now known as the minto pass. stephen meek, who had trapped on the headwaters of john day river, and there met indians from the willamette, thought that he could find this trail; but as a matter of fact it was not discovered by whites until 1873. dr. white (1845) and cornelius gilliam (1846) made essays to open a road through the eastern barrier of the valley. see john minto, "history of the minto pass," in _oregon historical quarterly_, iv, pp. 241-250.--ed. [108] this was tygh creek, a western affluent of deschutes river, about thirty-five miles above its mouth.--ed. [109] marked on the united states land commissioner's map of oregon (1897) as an affluent of white river, a branch of the tygh.--ed. [110] see an account of this party of cattle drivers and their adventures in "occasional address," by hon. stephen staats, in oregon pioneer association _transactions_, 1877, pp. 51, 52. staats was one of the party who reached oregon city in thirteen days from the dalles.--ed. [111] the little deschutes, rising on the slopes of mount hood. see reminiscences of william barlow, son of the leader of this party, in _oregon historical quarterly_, iii, pp. 71-81. he speaks of the lack of good tools for opening the road, rusty saws and axes being the only implements available to the builders. they frequently reverted to firing the underbrush ahead of them.--ed. [112] the opinion heretofore entertained, that this peak could not be ascended to its summit, i found to be erroneous. i, however, did not arrive at the highest peak, but went sufficiently near to prove its practicability. i judge the diameter of this peak, at the point where the snow remains the year round, to be about three miles. at the head of many of the ravines, are perpendicular cliffs of rocks, apparently several thousand feet high; and in some places those cliffs rise so precipitately to the summit, that a passage around is impracticable. i think the southern side affords the easiest ascent. the dark strips observable from a distance, are occasioned by blackish rock, so precipitous as not to admit of the snow lying upon it. the upper strata are of gray sandstone, and seem to be of original formation. there is no doubt, but any of the snow peaks upon this range can be ascended to the summit.--palmer. [113] this should read big sandy or quicksand river. lewis and clark gave it the latter name. it is usually known as the sandy, and in many branches drains the western slope of mount hood, flowing northwest into the columbia, in multinoma county.--ed. [114] for clackamas river see our volume xxi, p. 320, note 105.--ed. [115] william h. rector settled at champoeg, which district he represented in the legislature of 1847. during the gold excitement the following year, he went to california, but returned to oregon, where in 1857 he was instrumental in starting the pioneer woolen mill at salem, of which for some time he was superintendent. in 1861 he was commissioner of indian affairs, with headquarters at portland. in later life, rector was interested in railway enterprises. popular with oregon settlers, he was quite commonly known as "uncle billy."--ed. [116] william gilbert buffum was born in vermont in 1804. when eleven years of age his family removed to ashtabula county, ohio. in 1825 buffum went to illinois to work in the mines, later settling in fulton county, and removing to missouri in 1841. his wife, caroline thurman, was born in ohio in 1814. after their long journey to oregon, the buffums settled in yamhill county, near amity, where they afterwards resided, with the exception of a year spent in the california gold fields. buffum was still living in amity in 1898. see his reminiscences in oregon pioneer association _transactions_, 1889, pp. 42-44. mrs. miriam a. thompson (_née_ robinson) was born in illinois (1826) and married the year before the migration to oregon. after reaching the willamette she settled in yamhill county, thence removing to clatsop plains, where in 1848 her husband left her for california. there he was murdered, and in 1850 his widow married jeremiah h. tuller, after 1880 living in douglas county. for her own account of her adventures, and especially this trip across the cascade mountains, see oregon pioneer association _transactions_, 1895, pp. 87-90.--ed. [117] jacob c. caplinger was born in virginia in 1815, of german descent. in 1837 he removed to illinois, in 1841 marrying jane woodsides. after reaching the settlements, the caplingers remained at oregon city until 1847, when they purchased a farm near salem, where they were living in 1892.--ed. [118] matthew (not n.) gilmore came out in 1843, settling on the tualatin plains, where he was chosen delegate to the provisional legislature of 1844. gilmore was a farmer, not prominent in public life. charles gilmore appears to have been of the migration of 1844. peter g. stewart came with the applegate party of 1843, and was one of the executive committee of three, chosen in 1844. he was a man of calm, dispassionate temper, who had been a jeweler in the states. in 1853 he was port surveyor at pacific city.--ed. [119] according to h. h. bancroft, _history of oregon_, i, pp. 525, 526, these were the families of andrew hood and sharp c. senters. rev. theophilus powell was born in kentucky, left for oregon from missouri, and died in marion county, oregon, in 1861.--ed. [120] several members of the party of 1845 bore the name of smith; probably this was simeon, born in ohio in 1823, removed to missouri in 1838, and settled in marion county, finally making his home in salem, where he died in 1878. see reference in stephen staats's address, in oregon pioneer association _transactions_, 1877, p. 55; also _ibid._, 1878, pp. 92, 93.--ed. [121] colonel james taylor was born in pennsylvania (1809), of scotch-irish ancestry. in 1823 he removed to ohio, where he was active in the state militia and connected with the indian trade. his wife was esther d'armon, who came with him to oregon. see her biography in oregon pioneer association _transactions_, 1897, pp. 103-105, wherein is recounted her experience in crossing the cascades. colonel taylor removed in 1846 to clatsop plains, but at the outbreak of the cayuse war (1847) carried his family back to oregon city, while he served in the extempore army as assistant commissary to general palmer. in 1849-51 taylor was chosen first territorial treasurer. about 1850 the taylors returned to clatsop, removing to astoria about 1855, where they passed the remainder of their lives, both dying in 1893.--ed. [122] samuel mcswain, of the emigration of 1844.--ed. [123] peter h. hatch, who came to oregon by sea in 1843.--ed. [124] the clackamas indians were a branch of the upper chinook, which had long inhabited the river valley called by their name. lewis and clark reported (1806) that there were eleven villages of this tribe, with a population of eight hundred. see thwaites, _original journals of the lewis and clark expedition_ (new york, 1905), iv, p. 255; vi, p. 118. the indian agent for 1851 estimated their number at eighty-eight. the village where palmer tarried was the one visited in 1841 by members of the wilkes exploring expedition. a conflict for influence over this tribe was in progress at the time, between the catholic and methodist missionaries stationed at the falls of the willamette. captain william clark thus describes their huts: "they build their houses in the same form with those of the columbian vally of wide split boa[r]ds and covered with the bark of the white cedar which is the entire length of one side of the roof and jut over at the eve about 18 inches."--ed. [125] for the founding of oregon city see de smet's _oregon missions_, in our volume xxix, p. 180, note 76.--ed. [126] for a sketch of dr. john mcloughlin see our volume xxi, p. 296, note 81.--ed. [127] de smet describes the building of the catholic church in his _oregon missions_, our volume xxix, p. 167.--ed. [128] in 1842 the wallamet milling company was organized and proceeded to erect both flour and grist mills on an island near the falls, in order to accommodate the settlers, who before their erection had been dependent upon the hudson's bay company's mills near vancouver. the founders of this enterprise were members of the methodist mission. governor george abernethy of new york (born in 1807) came to oregon as steward of the party of reinforcement arriving in the "lausanne" (1840). his business capacity was appreciated by the members of the mission, and he was soon established as a merchant at oregon city. here he took prominent part in the organization of the provisional government, of which he was elected governor in 1845. re-elected the following year, abernethy continued in this office until the arrival of governor joseph lane (1849), sent out as first territorial governor by the united states. during the troubles incident to the whitman massacre, governor abernethy acted with discretion and promptness, and retained the good will of oregonians during his entire term of office. after retiring from public service he continued in mercantile pursuits, dying at portland in 1877. see his portrait in h. s. lyman, _history of oregon_, iii, p. 286. for alanson beers see farnham's _travels_ in our volume xxix, p. 21, note 14.--ed. [129] in 1844 the oregon printing association was formed, and george abernethy sent to new york for a press upon which was printed the first number of the _oregon spectator_, february 6, 1846. its first editor was colonel william g. t'vault, a pioneer of 1845; he was succeeded by henry a. g. lee, george l. curry, aaron e. wait, and rev. wilson blain, successively. although several times suspended for brief periods, the _spectator_ was published until 1855. for an account see george h. himes, "the history of the press of oregon, 1839-1850," in _oregon historical quarterly_, iii, pp. 327-370.--ed. [130] see descriptions of this game in _original journals of the lewis and clark expedition_, iv, p. 37; and in ross's _oregon settlers_, our volume vii, pp. 291-293.--ed. [131] william engle, of german descent, was born near harper's ferry, virginia, in 1789, and served as a volunteer in the war of 1812-15. having lived for some years in st. clair county, illinois, he went out with the train of 1845 for oregon, settling first at oregon city. the following year he took up donation land in clackamas county, where he resided until 1866, being chosen member of the legislature of 1847, and for two years serving as county judge. having sold his farm in clackamas, he removed to marion county, where he died in 1868. engle was by trade a carpenter; his experiment as a foundryman does not appear to have been successful.--ed. [132] lewis f. linn was born in 1796 near louisville, where he studied medicine and afterwards volunteered for the war of 1812-15. at its close he removed to ste. geneviève, missouri, where he began active practice. in 1827 he was elected to the state senate, and in 1833 was appointed to the united states senate to fill out the term of a deceased senator. thrice elected thereto by the missouri legislature, he served until his own death in 1843, being known in the senate as a champion of oregon interests. the town opposite oregon city was known as linn city. it consisted in december, 1844, of two log buildings and many tents, wherein the emigrants of 1844 made their headquarters. in 1861 all the buildings were swept away by a flood. it has now no separate existence.--ed. [133] robert moore was born in pennsylvania in 1781, served in the war of 1812-15, and in 1822 emigrated to ste. geneviève, missouri, whence he was sent to the state legislature. in 1835 he removed to illinois, where in 1839 he joined the peoria party for emigration to oregon. see preface to farnham's _travels_, in our volume xxviii. moore was one of the seceders who went off from bent's fort to fort st. vrain, where he spent the winter of 1839-40. arrived in oregon he purchased land of the indians on the west side of the willamette, naming his place the "robin's nest," being visited there by commodore wilkes in 1841. moore served on a committee of the provisional government, and held a commission as justice of the peace. he died in oregon september 1, 1857.--ed. [134] hugh burns was a blacksmith who came to oregon in 1842, in the party of medorem crawford. the same year he was made a magistrate, and concerned himself with public affairs until his return to missouri in 1846. for the multinoma indians see our volume vi, p. 247, note 53.--ed. [135] the right to establish public ferries was granted by the provisional legislature of 1844 to robert moore and hugh burns.--ed. [136] the site of portland was unoccupied until november, 1843, when william overton, from tennessee, and asa l. lovejoy staked off claims of three hundred and twenty acres each. in 1844 overton sold out to f. w. pettygrove of maine for $50, and the first log cabin was built. in 1845 the place was named and a town platted; the growth was slow, however, and by 1849 there were only about a hundred inhabitants. two years later the town was incorporated, at that time claiming a population of a thousand. after that the growth became more rapid. in 1873 portland suffered a disastrous conflagration. the city's success is due to its position at the head of tidewater navigation for the columbia and willamette valleys, and as being the terminus of eastern and southern trunk railways.--ed. [137] the willamette is navigable in high water for small steamers as far as eugene, a hundred and thirty-eight miles above portland. the first steamers on the upper willamette were the "hoosier" and "yamhill," built in 1851. since railways have followed both banks of the stream, river navigation has been of minor importance.--ed. [138] the mountains of the coast range extend at the highest from four thousand to five thousand feet above sea level, with lower levels half as great. several passes run through from the pacific, notably that afforded by the yaquina and mary's rivers, through which runs the oregon central railway.--ed. [139] by this paragraph, palmer intends to describe tualatin river and plains. the name is derived from a local indian word said to signify "smooth and slowly-flowing stream." the land known to the early settlers as tualatin plains is now embraced in washington county--a famous fruit-and wheat-raising region. the plains are encircled by hills, giving the appearance of a large amphitheatre. the earliest settlers in this region were three independent missionaries, harvey clark, alvin t. smith, and p. b. littlejohn, who crossed the continent in 1840, and the following spring settled at tualatin. about the same time, several mountain men, such as joseph l. meek and robert newell, made their homes in the region. the red river settlers who had come under the auspices of the puget sound agricultural association in 1841, being dissatisfied with lands north of the columbia, gradually drifted south, a number settling at dairy creek, in the tualatin country. for the tualatin river see farnham's _travels_ in our volume xxix, p. 16, note 5.--ed. [140] this stream is usually known as the chehalem, the significance of the name being unknown. among the earliest settlers in this fertile valley were ewing young (see our volume xx, p. 23, note 2), and sidney smith (for whom see our volume xxviii, p. 91, note 41). several mountain men also had farms in the region, as well as archibald mckinley, a member of the hudson's bay company.--ed. [141] yamhill is said to be a corruption of cheamhill, a name signifying "bald hills." among the earliest settlers were francis fletcher and amos cook, of the peoria party of 1839. medorem crawford (1842) settled near what is now dayton for the first years of his oregon life. general palmer himself chose this valley for his future home, and in 1850 founded therein the town of dayton. see preface to the present volume.--ed. [142] rickerall (commonly rickreall) is a corruption of la creole, the name now usually applied to this stream, which drains polk county and though not navigable has many mill sites and waters a fertile region.--ed. [143] known as polk county hills, forming a charming background for the western view from salem.--ed. [144] jesse, charles, and lindsey applegate were natives of kentucky who emigrated to oregon in 1843, and became leaders in its development. the eldest, jesse, was a man of marked peculiarities, but accredited with much wisdom and indomitable perseverance, and a natural leader of men. his influence was considerable in forming the provisional government. in 1846 he explored for a southern route into willamette valley, and thence led emigrants south of klamath lake. about 1849 he settled in the umpqua country, near the site whence he obtained his title as "sage of yoncalla." a disastrous business venture sent him for a time to the mountains of northern california. during the rogue river and modoc indian wars his knowledge of the character of the aborigines was valuable, and several times he served as special indian agent, dying in douglas county in 1888. charles applegate was born in 1806, removed to st. louis about 1820, migrated to oregon in 1843, and accompanied his brother jesse to douglas county, where he died in 1879. lindsey applegate accompanied general w. h. ashley on his arikara campaign of 1823 (see our volume xxiii, p. 224, note 177), wherein he was taken ill. after returning to st. louis he worked in the illinois lead mines, and saw service in the black hawk war (1832). after his migration to oregon (1843), he became only second to his eldest brother in services to the young commonwealth. he made his home in the southern part of the state, near ashland, in jackson county, where he was living in 1885.--ed. [145] this name should be hembree, that of a pioneer family from tennessee, who came out in 1843. absalom j. hembree was a member of the legislature from 1846 to 1855. in the latter year he raised a company for the yakima war, in which he was killed. many descendants of this family live near lafayette and other yamhill county towns.--ed. [146] these were members of the immigration of 1844, of which cornelius gilliam was chosen leader. he had served in both the black hawk and seminole wars, and had been sheriff and member of the legislature in missouri. his command of the emigrant train did not last through the entire trip, the party breaking into smaller companies, two of which were commanded by william shaw and nathaniel ford. gilliam was colonel of the regiment raised to avenge the whitman massacre, and was killed by the accidental discharge of a gun. william shaw was born (1795) near raleigh, north carolina. when a boy he emigrated to tennessee and took part in jackson's campaign before new orleans (1814-15). about 1819 he removed to missouri, where he married a sister of colonel gilliam. he was captain in the cayuse war of 1848, and member of the territorial legislature from marion county, ten miles above salem, where he made his permanent home. nathaniel ford was a native of virginia (1795), but was reared in kentucky, and after coming out to oregon settled in polk county, where he died in 1870.--ed. [147] george gay was an english sailor. born in gloucestershire (1810), he served as ship's apprentice when eleven years of age. in 1832 he reached california on the "kitty," and there joined ewing young's trapping party to the mountains of northern california, returning without entering oregon. in 1835 he formed one of a party of eight men under the leadership of john turner, who coming overland to oregon were attacked by the rogue river indians, all being wounded and two killed. gay reached the settlements after a trip filled with great hardships, and thenceforth made oregon his home, taking an indian wife and settling high up on the willamette, near the southern boundary of yamhill county. here he built the first brick house in the territory, and with unbounded hospitality opened it to new emigrants. wilkes (1841) describes him as a dashing, gay "vaquero," half-indian in his characteristics, but very useful to the new community. at one time he had considerable wealth in horses and cattle, but died poor in 1882. daniel matheny, of the emigration of 1843, was born in virginia in 1793. successive removals carried him to kentucky, indiana, and illinois, where he served in the war of 1812-15, and that of black hawk (1832). having settled near gay in 1844, he afterwards kept a public ferry, dying on his farm in 1872. several of his family accompanied him to oregon.--ed. [148] luckiamute is the modern spelling of this name of indian origin, derived from a branch of the kalapuya tribe that formerly inhabited this valley. in 1851, federal commissioners made a treaty with this tribe whereby they ceded their lands, and retired soon afterwards to the grande ronde reservation. by mouse river palmer means the stream now known as mary's river--a name given by j. c. avery, the founder of corvallis, in honor of his wife.--ed. [149] mount jefferson, hayrick mountain, mount washington, and the three sisters, with neighboring peaks.--ed. [150] our author here intends the coast (not the cascade) range, of which mary's peak, between the two forks of mary's (mouse) river is the highest, rising about five thousand feet above sea level.--ed. [151] the alsea, in lincoln county, flows into a bay of that name, where small coasting steamers enter and ascend the stream some eighteen or twenty miles. the name is derived from an indian tribe--one of the kalapuya stock.--ed. [152] in the early days of oregon settlement more frequently spelled longtonguebuff (properly lungtumler), from a branch of the kalapuya tribe that inhabited its banks. the stream is now known simply as long tom river, rising in lane county and flowing nearly north into benton county, entering the willamette not far above peoria.--ed. [153] palmer here refers to molala river, a stream of southwestern clackamas county, that took its name from a tribe of indians once roaming upon its banks. governor lane in 1850 refers to this tribe as mole alley; and the liquid letters "m" and "p" being nearly interchangeable in the indian dialect, palmer gave it the form pole alley. the molala tribe was an offshoot of the cayuse, that had its home west of the cascades. the early settlers testified to their superior physique and stronger qualities, compared with the degraded chinook by whom they were surrounded. in 1851 their tribal lands were purchased, when their number was reported at 123. the remnant removed to douglas county, and in 1888 a few calling themselves molala were found on the grande ronde reservation.--ed. [154] the aboriginal name of this stream was hanteuc. two differing accounts are given of the origin of the present name. elijah white (_ten years in oregon_, p. 70) says a party of hudson's bay trappers lost their way upon this stream and were forced to kill their horses for sustenance, making pudding of the blood. others give the derivation as "put in"--the stream that puts in just below the early french settlement, thence degenerated to pudding. the river rises in the foothills near the centre of marion county, and flows nearly north, a sluggish, crooked stream from eighty to a hundred feet in width.--ed. [155] the butte was a landmark on the upper willamette, a high escarpment prominent from the river. here was formerly a landing for the settlers of french prairie, whose farms lay south and east of this point. the town of butteville was laid out by merchants of oregon city--abernethy and beers--to facilitate the commerce in wheat. f. x. matthieu took up land here as early as 1846, and in 1850 kept a store. he still lives at butteville, which in 1900 had a population of 483.--ed. [156] for champoeg see de smet's _oregon missions_ in our volume xxix, p. 179, note 75. the early meetings of the provisional government were held at this place, which was the centre for the old canadian-french inhabitants of the country. dr. robert newell was born in 1807 at zanesville, ohio. his fur-trapping experiences were under the auspices of the american fur company (not the hudson's bay company), as companion of joseph l. meek. see f. t. victor, _river of the west_ (hartford, 1870). his first settlement (1840) after the migration to oregon, was at tualatin plains; but before 1842 he removed to champoeg, where by his influence over the settlers he became the political as well as social leader. possibly also newell laid out a town at this place, but he was by no means the founder of the village. newell represented champoeg in the provisional government for several years, and in 1846 was speaker of the lower house of the state legislature. after the whitman massacre (1847) he was chosen one of the commissioners, with palmer, to treat with the indians. he also raised a company for the indian war of 1856. in later life he was connected with railway projects and died at lewiston, idaho, in 1869.--ed. [157] for the early settlement of french prairie, see de smet's _letters_ in our volume xxvii, p. 386, note 203; also our volume vii, p. 231, note 83. for the chinook jargon see our volume vi, p. 240, note 40; also pp. 264-270 of the present volume.--ed. [158] for the earliest site of the methodist mission see our volume xxi, p. 299, note 84. matheny's ferry is mentioned in note 147, _ante_, p. 174.--ed. [159] for jason lee see our volume xxi, p. 138, note 13. his first wife was anna maria pitman, who came out from new york in 1837, the marriage taking place soon after her arrival in may of that year. the following spring lee returned to the united states. upon his journey a messenger overtook him, announcing the death of mrs. lee on june 26, 1838. the first interment was at the old mission, as here stated. later the grave was removed to salem. h. h. bancroft, _history of oregon_, i, p. 170, gives the inscription on the tombstone.--ed. [160] for the origin of the willamette institute see de smet's _oregon missions_ in our volume xxix, p. 165, note 62.--ed. [161] in 1843 the missionary society of the methodist episcopal church decided that the oregon mission, being no longer useful for the conversion of indians, should be closed, and the charges organized into a mission conference for whites. in pursuance of this resolve, rev. george gary of black river conference, new york, was appointed to supersede jason lee as superintendent. early in june, 1844, gary settled the affairs of the mission, dismissing the lay members, who immediately bought in the mills and other property of the mission. gary remained in oregon until 1847, making his headquarters at oregon city. the native name of the site at salem--chemekata--was interpreted by rev. david leslie as having the same significance as the term salem--_i. e._, rest, or peace. the site was chosen in 1840 for the erection of mills on mill creek. the trustees of oregon institute laid out the town, which grew slowly until in 1851 it became the territorial capital. by the terms of the state constitution the capital was located by popular vote, which resulted in favor of salem. its population in 1900 was 4,258.--ed. [162] the santiam river takes its name from the head chief (sandeam) of the kalapuya indians, who dwelt upon its banks. april 16, 1851, the federal commissioners made a treaty with the santiam branch of the tribe, whereby the latter ceded to the whites a large portion of their lands. their number at this time was a hundred and fifty-five. santiam river drains a considerable portion of marion and linn counties, its north fork forming the boundary between the two. the road up this fork leads to minto pass; the south fork formed the line for the willamette and cascade military road. palmer's use of the term "santa anna" for this stream, in the two following paragraphs, would seem to indicate his ignorance of the indian origin of the term, and an idea that it had been named for the mexican general of that period.--ed. [163] joel p. walker was a brother of joseph r. walker (see note 46, _ante_, p. 70). of virginian birth he removed at an early age to tennessee, whence he went out under andrew jackson against the alabama indians (1814), and later against the florida seminole. some time before 1822, he removed to missouri, where he married, and engaged in the early santa fé trade with stephen cooper (see our volume xix, p. 178, note 16). walker removed with his family to oregon in 1840--one of the first families of settlers who came independent of the missionary movement. wilkes met him on the willamette in 1841, when he expressed his dissatisfaction with the climate and the conditions. see wilkes's _exploring expedition_, iv, p. 388. that same year he went overland to california, where he worked for captain sutter, coming back to oregon some time before palmer's visit, with a herd of cattle for sale. this time he remained in oregon several years, being chosen justice of the peace for yamhill county (about 1845). in 1848 he returned to california, where he was a member from napa of the constitutional convention of 1849. in 1853 he removed to sonoma county where he spent the remainder of his life, dying sometime after 1878.--ed. [164] for the umpqua river see our volume vii, p. 231, note 82; the fort is noted in farnham's _travels_, our volume xxix, p. 59, note 79.--ed. [165] for rogue river see _ibid._, p. 82, note 104. the mountains lie directly north of the river valley in coos and curry counties, oregon. the first settlers in this valley came there in 1851. see william v. colvig, "indian wars of southern oregon," in _oregon historical quarterly_, iv, pp. 227-240.--ed. [166] by the "klamet" mountains, palmer refers to the chain lying north of klamath river valley, now usually spoken of as the siskiyou range. klamath river is described in farnham's _travels_, our volume xxix, p. 46, note 56. the trail into this region followed nearly the route of the southern pacific railway.--ed. [167] the indians of southern oregon had always been disposed to molest white wayfarers. witness the troubles of jedidiah h. smith in 1828, the massacre of the turner family in 1835, and the attack on a cattle train in 1837. after 1848, the passage of gold-seekers to and from california intensified the difficulty, whereupon a long series of contests ensued, resulting in open wars, in which palmer bore an important part. the war of 1853 was terminated by a treaty (september 10) secured by generals lane and palmer; that of 1855 was more serious, being participated in by regular troops as well as oregon militia. for palmer's relation to these wars see preface to this volume.--ed. [168] for point adams see our volume vi, p. 233, note 37. the term clatsop was given for an indian tribe--_ibid._, p. 239, note 39. clatsop plains were first visited in the winter of 1805-06 by members of the lewis and clark expedition, who erected a cairn for the making of salt, in the neighborhood of the present resort known as seaside. the settlement of this region was begun in 1840 by members of the methodist mission, reinforced by solomon h. smith and calvin tibbitts of the wyeth party, who had married daughters of the clatsop chief cobaway (lewis and clark spelled it comowool). j. w. perry took up a farm in 1842, and several members of the immigration of 1843 settled on the clatsop plains. see "pioneer women of clatsop county," in oregon pioneer association _transactions_, 1897, pp. 77-84. these plains are composed of a sandy loam well adapted for fruit and vegetables, but especially suited to grazing, so that dairying is a leading industry of this region. cape lookout, in tillamook county, is a conspicuous headland. it was first sighted by heceta in 1775, and named by captain meares in 1789. see our volume xxviii, p. 32, note 9; also our volume vii, p. 112, note 17. the point, however, which palmer designates as cape lookout, is in reality that called by the lewis and clark expedition "clark's point of view," but now known as tillamook head.--ed. [169] the necanican river, called by lewis and clark the clatsop, has a roundabout course, as indicated by palmer, and drains the southern end of clatsop plains.--ed. [170] saddle mountain, the highest point in clatsop county, shows three peaks as viewed from the columbia, and takes this name from its form. the aboriginal name was swollalachost. lewis and clark found it covered with snow during most of the winter season of 1805-06.--ed. [171] for the tillamook (kilamook) indians see our volume vi, p. 258, note 67. mount rainier is noted in farnham's _travels_, our volume xxix, p. 33, note 30.--ed. [172] on tillamook rock, a large boulder in the ocean, opposite tillamook head, a lighthouse was erected in 1879-81. it was a work of much difficulty, the engineers narrowly escaping being washed into the sea.--ed. [173] palmer probably obtained his information of these indian traditions from celiast (or helen) smith, daughter of the clatsop chief, whose son silas b. smith has furnished much material for recent historical works. this story of the wreck of the ship carrying beeswax, differs slightly from the version given in lyman, _history of oregon_, i, pp. 167-169. lyman conjectures that it may have been the spanish ship "san jose," carrying stores (1769) to san diego, california, which was never after heard from. some of the cakes of wax found bore the letters i. h. s.--ed. [174] for young's bay see our volume vi, p. 259, note 69. skipanon is a small creek, a branch of which clark crossed on a log during his trip from fort clatsop to the seacoast. the site of fort clatsop was definitely determined by olin d. wheeler in 1899 (see his _trail of lewis and clark_, ii, pp. 195, 198), and the oregon historical society in 1900 (see _proceedings_ for 1900). the plan of the fort was discovered by the present editor among the clark papers in 1904. see _original journals of the lewis and clark expedition_, iii, pp. 268, 298. the river upon which the fort was located was known by the native name of netul, now called lewis and clark river, a tributary of young's bay west of young's river.--ed. [175] young's river was called by lewis and clark kilhawanackkle, and is the largest stream in clatsop county. the falls are at the head of tidewater and flow over a black basalt cliff. the eastern tributary is the klaskanine river. see _original journals of the lewis and clark expedition_, iv, p. 137.--ed. [176] for the history of this place see franchère's _narrative_ in our volume vi, and ross's _oregon settlers_ in our volume vii. the later history of fort george is sketched in farnham's _travels_, our volume xxix, p. 57, note 74.--ed. [177] for cape disappointment and baker's bay see our volume vi, pp. 233, 234, notes 36, 38. chinook point was the site of a populous village of that tribe just west of point ellice, which is the southernmost promontory between gray's and baker's bay. lewis and clark found the village deserted, but in early astorian times it was populated--see our volumes vi, p. 240; vii, p. 87.--ed. [178] for peter skeen ogden see our volume xxi, p. 314, note 99. the united states government has recently chosen this site for a fort now (1906) in process of erection, to be known as fort columbia.--ed. [179] astoria, as an american town, began in 1846 with the settlement of james welch, who defied the hudson's bay company officers to drive him from the site. the post-office was begun in 1847, and a custom house two years later. in 1856 a town government was established, while twenty years later astoria was incorporated as a city. its population is now about ten thousand, with good prospects for a large growth in the near future.--ed. [180] for james birnie see our volume xxi, p. 361, note 130.--ed. [181] elbridge trask came to oregon in 1842, apparently a sailor on an american vessel. he lived for a time at clatsop plains. probably his companion was captain alexander duncan, commander of the "dryad," and a friend of james birnie.--ed. [182] for tongue point, which takes its name from its peculiar shape, see our volume vi, p. 242, note 44. gray's bay is noted in volume vii, p. 116, note 20.--ed. [183] by swan bay, palmer intends that stretch of the river lying between tongue and catalamet points, which is more usually known as catalamet bay. the river is the john day (aboriginal name, kekemarke), which should not be confused with the larger stream of this name in eastern oregon. see our volume v, p. 181, note 104.--ed. [184] for catalamet point see our volume vii, p. 116, note 20. the old village of the catalamet indians which was located near the present town of knappa, was visited by lewis and clark on their outward journey (1805); see _original journals of the lewis and clark expedition_, iii, p. 252. the stream was that now known as tillasqua creek.--ed. [185] this mill was erected by henry hunt, one of the emigrants of 1843, for the purpose of preparing lumber for the pacific market, especially that of the sandwich islands. see letter of tallmadge b. wood in _oregon historical quarterly_, iii, pp. 394-398. later, salmon barrels were made at this place, the men employed at the task being the only settlers between astoria and linnton on the willamette; and sometimes they were summoned to serve as a sheriff's posse. see oregon pioneer association _transactions_, 1890, p. 73. hunt's mill point is marked on the federal land office map of 1897 as being opposite the lower end of puget island.--ed. [186] at oak point was made the first american settlement in oregon; see our volume xxi, pp. 261, 287, notes 74, 94. the stream on the south side is the clatskanie river, in columbia county, oregon, flowing southwest and entering the river opposite wallace island. for the origin of this word and its relation to the klaskanine river see h. s. lyman, "indian names," in _oregon historical quarterly_, i, p. 322. the mill stream of the northern bank is nequally creek in cowlitz county, washington.--ed. [187] for a brief historical sketch of fort vancouver see our volume xxi, p. 297, note 82.--ed. [188] colonel john mcclure came to oregon from new orleans some time before 1842. in 1843 he settled at astoria, where he had a cabin on the site of the first astoria mill. he married a native woman, and his portion of the early town was known as mcclure's astoria. he is described as having been an old man in 1845, and he had died before 1867.--ed. [189] the british ship of war "modesté," captain baillie commanding, first visited fort vancouver in july, 1844. governor mcloughlin was offered no protection at this time; but the situation having grown more intense, the vessel was ordered to the columbia in october, 1845, and remained to protect british interests until april, 1847. the officers sought to conciliate the american pioneers, but there was on the whole little intercourse between the two nationalities. theatrical entertainments were planned and given in the winter of 1845-46, and a ball arranged by these officers was the occasion of an expression of a majority sentiment for the american cause. see oregon pioneer association _transactions_, 1874, pp. 26, 27.--ed. [190] for fraser river and vancouver island see farnham's _travels_, our volume xxix, pp. 43, 75, notes 52, 91.--ed. [191] for puget's sound see _ibid._, p. 90, note 108. the first road over the cascades was built in 1853, from olympia to walla walla.--ed. [192] for gray's harbor see our volume vi, p. 256, note 64; the chehalis river is described in farnham's _travels_, our volume xxix, p. 81, note 103.--ed. [193] for the cowlitz settlement see our volume xxvii, p. 386, note 203.--ed. [194] much has been written on the provisional government of oregon, which was shadowed forth in the action of 1841, and actually established july 5, 1843. consult j. quinn thornton, "history of the provisional government," in oregon pioneer association _transactions_, 1874, pp. 43-96; j. henry brown, _political history of oregon_ (portland, 1892); james r. robertson, "genesis of political authority in oregon," in _oregon historical quarterly_, i, pp. 1-59; and h. w. scott, "formation and administration of the provisional government of oregon," _ibid._, ii, pp. 95-118. palmer's brief synopsis is a summary of the revised organic law, drafted by a committee appointed by the legislature in june, 1845, endorsed by popular vote on july 26, and put in operation august 5 (see appendix to the present volume). this government continued until february 16, 1849, when it was superseded by the territorial government provided by congress under act approved august 14, 1848. the code of iowa laws appears to have been adopted because of the existence of a copy of iowa statutes in the country. see f. i. herriott, "transplanting iowa's laws to oregon," in _oregon historical quarterly_, v, pp. 139-150.--ed. [195] the legislature of 1843 erected four districts for the purpose of local government--_i. e._, tualatin (read for quality), yamhill, champoeg (read for shampoic), and clackamas. that of 1845 changed the title to counties and created four more--clatsop, polk, vancouver, and lewis. palmer gives their location properly.--ed. [196] for the location of spaulding's mission see our volume xxviii, p. 338, note 215. william craig was a mountain man who came to oregon in 1842. he married among the nez percés, and established a farm just east of the lapwai mission, where he had great influence with this tribe. in 1855 his land was reserved to him by treaty, the nez percés "having expressed in council a desire that william craig should continue to live with them, having uniformly shown himself their friend." in 1856 he was made lieutenant-colonel of washington volunteers, and in 1857-59, indian agent at walla walla.--ed. [197] for the beginnings of portland see note 136, _ante_, p. 166. francis w. pettygrove was born in calais, maine, in 1812. having engaged in mercantile business he carried a cargo of goods valued at $15,000 to oregon by sea, establishing a store at oregon city (1843). it was due to his wish that the newly-founded town near the mouth of the willamette received the name of portland. in 1848 pettygrove sold his interest in the portland town site, going to california, where he speculated in land at benicia. in 1851 he was one of the founders of port townsend, in washington.--ed. [198] the town of linnton was founded in 1843 by m. m. mccarver and peter h. burnett, emigrants of that year, who supposed they had chosen a site that would be the head of ship navigation. they spent the first spring cutting the road to tualatin plains; but not finding linnton a profitable speculation, they removed to the plains and began farming. the town has continued to exist until the present, its population in 1900 being 384.--ed. [199] the stream is the washougal river of clarke county, washington whose source is not as far north as mount st. helens, but near saddle peak in skamania county. a number of the immigrants of 1844 stopped here and established winter quarters, going on the next year to settle at puget sound. chief among these was colonel michael t. simmons, this title being bestowed because he was second in command of the caravan of 1844. born in kentucky in 1814, he had in 1840 removed to missouri where he built and ran a saw mill, which he sold to obtain his outfit for the oregon journey. he explored the puget sound region in the spring of 1845, settling at tumwater, where he died in 1867. simmons is known as the father of washington; he was sub-indian agent for several years, and much concerned in building up the settlement.--ed. [200] for this landmark see our volume xxi, p. 346, note 120.--ed. [201] for the cascades see our volume xxviii, p. 371, note 233.--ed. [202] this is an alternate name for deschutes river, for which see _ante_, p. 119, note 102.--ed. [203] for this fort see our volume xxi, p. 278, note 73. the chief of the wallawalla was peupeumoxmox, or yellow serpent. he early came under missionary influence, and sent one of his sons to the willamette to be educated under methodist influences. this young man was christened elijah hedding, for a bishop of the church. he remained with the missionaries for over six years and acquired a command of english. in the autumn of 1844 a number of cayuse, nez percé, and wallawalla chiefs decided to visit the california settlements in order to trade for cattle. from sutter's fort they made a raid into the interior, capturing some horses from a band of thieves. these animals were claimed by the spanish and american settlers while the indians maintained that they were their own property. in the course of the dispute elijah was shot and killed. the oregon indians were greatly exasperated by this incident, threatening to raise a war-party against california, or to make reprisal upon any or all whites. the affair was quieted by the hudson's bay agent and the missionaries, but was undoubtedly one of the causes of the whitman massacre. yellow serpent took no part in this latter event, but was active in the war of 1855, in which he perished while a hostage in the hands of the whites. john augustus sutter was a german-swiss born in 1803. after serving in the franco-swiss guards (1823-24) he came to america (1834) and embarked in the santa fé trade (1835-37). in 1838 he started for california, going via oregon, the sandwich islands, and alaska. arriving in san francisco bay (1839) he secured from the mexican government a concession on the sacramento river, where he built a fort (1842-44) and named his possessions new helvetia. in 1841 sutter bought the russian establishment known as ross (see our volume xviii, p. 283, note 121), whose materials he used in fitting up his own fort. sutter was friendly to the american cause, and received emigrants with hospitality. he aided frémont in the revolt against mexican authority. in 1848 gold was discovered upon his property. he profited but little by this event, however, and became so poor that he was pensioned by the california legislature. about 1865 he went east to live, dying in washington, d. c., in 1880. h. h. bancroft secured from sutter, by means of interviews, a detailed narrative of his career, and the manuscript is now in the bancroft library, purchased for the university of california in november 1905.--ed. [204] ellis (or ellice) was the son of bloody chief. having been educated by the hudson's bay company, he had acquired much influence with his tribe. in 1842, being then about thirty-two years old, he was, at the instigation of dr. elijah white, indian sub-agent, chosen head chief of the nez percés, and ruled with considerable tact and wisdom, being favorable to the whites. during the cayuse war of 1848, ellis was reported as hunting in the buffalo country; later, it was stated that having gone with sixty braves to the mountains for elk, they all perished from an epidemic of measles. lawyer was chosen as head-chief in ellis's place.--ed. [205] for the location of whitman's mission, see our volume xxviii, p. 333, note 210.--ed. [206] for the blue mountains see our volume xxi, p. 273, note 71. the stream was probably touchet river, the largest affluent of the walla walla. rising in the blue mountains in columbia county, washington, it flows northwest to dayton, then turns southwest and south, debouching into the walla walla at the present town of touchet.--ed. [207] for this stream see farnham's _travels_ in our volume xxix, p. 79, note 98.--ed. [208] see appendix.--palmer. [209] for the history of the printing press in use at this mission, see our volume xxviii, p. 333, note 211. the first book in the nez percé language was a little compilation of texts, consisting of eight pages. the translation of matthew was printed at lapwai; that of john was later published by the american bible society.--ed. [210] for this mission and its missionaries see our volume xxvii, p. 367, note 187. the farmer at lapwai mission was isaac n. gilbert, who was born in new york (1818). he early emigrated to illinois, and came to oregon with the party of 1844. late in 1846 he proceeded to the willamette valley, and settled near salem, where he was county clerk and surveyor, dying in 1879. see oregon pioneer association _transactions_, 1878, pp. 82, 83.--ed. [211] for these missions see de smet's reports in our volumes xxvii, p. 365, note 184; xxix, p. 178, note 73.--ed. [212] for this landmark see our volume xxviii, p. 324, note 204.--ed. [213] for the crow indians see our volume v, p. 226, note 121.--ed. [214] mike's head is probably a popular name for the rush of the equisetum species, known as "horsetail." the creek is known by the french form of this plant--à la prêle; it is a tributary of the platte, in converse county, wyoming.--ed. [215] hiram smith was born in new york, early emigrated to ohio, and crossed the plains with the party of 1845. having returned with palmer he remained in the states until 1851, coming again to oregon with a large drove of cattle and horses. he settled at portland, and became wealthy and influential. he crossed again to the states, returning in 1862--in all, making six journeys of this character. he died in san francisco in 1870.--ed. [216] the oregon immigration of 1846 was not as large as that of the previous year. apparently reliable estimates make the number about two thousand that finally reached that territory. for a description of these emigrants see francis parkman, _the oregon trail_ (boston, 1849, and later editions), chapters i, vi, vii. see also an itinerary of the journey by j. quinn thornton, _oregon and california_ (new york, 1849). among the california emigrants of this year were the ill-fated donner party, many of whom perished in the sierras.--ed. [217] probably this was fabritus r. smith, a native of rochester, new york (1819). settling at salem, oregon, he was in the state legislature of 1876, and still living at salem in 1896.--ed. [218] this unfortunate victim of the pawnee indians was edward trimble of henry county, iowa. see another account of his death in _niles' register_, lxx, p. 341.--ed. [219] on this return journey, palmer took the st. joseph trail, which branched off from the usual oregon trail near the little blue, and followed the valley of the great nemaha through the iowa, sauk, and fox reservation to the missouri opposite st. joseph. an excellent map of nebraska and kansas, presumably issued in 1854, but lacking name of place or publisher, plainly indicates this road. for the removal of these indians to the reservation in northeast kansas and southeast nebraska see our volume xxviii, pp. 141, 145, notes 87, 89. the agency was known as the great nemaha; it was situated near the mission begun (1837) by the presbyterians under the direction of rev. s. m. irvin. he crossed from missouri with the indians, and established his mission twenty-six miles west of st. joseph, not far from the site of the present highland, doniphan county, kansas. at the time of palmer's visit, irvin was being assisted by william hamilton, and a mission school was in course of establishment.--ed. [220] for st. joseph see our volume xxii, p. 257, note 210. this was not a mission site, but a trading post. the first church built (1845) was the presbyterian, under the care of rev. t. s. reeve.--ed. [221] for a contemporary notice of palmer's arrival in st. louis, see _niles' register_, lxx, pp. 341, 416.--ed. [222] since this letter was written, the forty-ninth parallel of north latitude has been established by treaty as the boundary line between the governments of great britain and the united states--except that portion of vancouver's island south of 49°, which continues under the jurisdiction of great britain.--palmer. [223] flowers have been seen in the last winter, and winter before, from the 20th of january.--m. w. [224] the first creek is that now called alpowa, in asotin and garfield counties, washington; it is a southwestern tributary of the lewis. tukanon river, in columbia county, washington, the largest southern affluent of the lewis west of lewiston, was known by lewis and clark as the kimooenem.--ed. [225] at present it will require one man to a thousand in the winter to protect from wolves. but strycknine is a sure poison with which to destroy them.--m. w. [226] these rivers have all been noted in the text, _ante_. by "rose" the author intends rogue river.--ed. [227] clover (native) is more abundant in june.--m. w. [228] probably what are called species here, are in many cases only a variety of the same species.--m. w. [229] this clause was introduced into the "organic law" of the provisional government in order to secure the hudson's bay traders, and hold their allegiance to the newly-established league of order. a copy was sent to governor mcloughlin, who having examined the document and finding "that this compact does not interfere with our duties and allegiance to our respective governments," wrote "we the officers of the hudson's bay company, consent to become parties to the articles of compact." see h. h. bancroft, _history of oregon_, i, p. 495, note 31.--ed. [230] for note on long, see de smet's _oregon missions_ in our volume xxix, p. 280, note 174.--ed. * * * * * * transcriber's note: the words 'pa-pa' and 'papa' have very different meanings. the words 'yamhill' and 'yam-hill' are used in different contexts; therefore remain unchanged. the words 'ya-ka' and 'yaka' have very different meanings. everyman, i will go with thee, and be thy guide, in thy most need to go by thy side. this is no. 734 of everyman's library. a list of authors and their works in this series will be found at the end of this volume. the publishers will be pleased to send freely to all applicants a separate, annotated list of the library. j. m. dent & sons limited 10-13 bedford street london w.c.2 e. p. dutton & co. inc. 286-302 fourth avenue new york everyman's library edited by ernest rhys history ancient law by sir henry james sumner maine introduction by prof. j. h. morgan sir henry james sumner maine, the son of a doctor, born 1822 in india. educated at christ's hospital and pembroke college, cambridge. in 1847 professor of civil law at cambridge; 1850, called to the bar. member of indian council for seven years. died at cannes, 1888. ancient law [illustration] sir henry maine london: j. m. dent & sons ltd. new york: e. p. dutton & co. inc. _all rights reserved made in great britain at the temple press letchworth and decorated by eric ravilious for j. m. dent & sons ltd. aldine house bedford st. london first published in this edition 1917 reprinted 1927, 1931, 1936_ introduction no one who is interested in the growth of human ideas or the origins of human society can afford to neglect maine's _ancient law_. published some fifty-six years ago it immediately took rank as a classic, and its epoch-making influence may not unfitly be compared to that exercised by darwin's _origin of species_. the revolution effected by the latter in the study of biology was hardly more remarkable than that effected by maine's brilliant treatise in the study of early institutions. well does one of maine's latest and most learned commentators say of his work that "he did nothing less than create the natural history of law." this is only another way of saying that he demonstrated that our legal conceptions--using that term in its largest sense to include social and political institutions--are as much the product of historical development as biological organisms are the outcome of evolution. this was a new departure, inasmuch as the school of jurists, represented by bentham and austin, and of political philosophers, headed by hobbes, locke, and their nineteenth-century disciples, had approached the study of law and political society almost entirely from an unhistoric point of view and had substituted dogmatism for historical investigation. they had read history, so far as they troubled to read it at all, "backwards," and had invested early man and early society with conceptions which, as a matter of fact, are themselves historical products. the jurists, for example, had in their analysis of legal sovereignty postulated the commands of a supreme lawgiver by simply ignoring the fact that, in point of time, custom precedes legislation and that early law is, to use maine's own phrase, "a habit" and not a conscious exercise of the volition of a lawgiver or a legislature. the political philosophers, similarly, had sought the origin of political society in a "state of nature"--humane, according to locke and rousseau, barbarous, according to hobbes--in which men freely subscribed to an "original contract" whereby each submitted to the will of all. it was not difficult to show, as maine has done, that contract--_i.e._ the recognition of a mutual agreement as binding upon the parties who make it--is a conception which comes very late to the human mind. but maine's work covers much wider ground than this. it may be summed up by saying that he shows that early society, so far as we have any recognisable legal traces of it, begins with the group, not with the individual. this group was, according to maine's theory, the family--that is to say the family as resting upon the patriarchal power of the father to whom all its members, wife, sons, daughters, and slaves, were absolutely subject. this, the central feature of maine's speculation, is worked out with infinite suggestiveness and great felicity of style in chapter v. ("primitive society and ancient law") of the present work, and his chief illustrations are sought in the history of roman law. the topics of the other chapters are selected largely with a view to supplying confirmation of the theory in question and, as we shall see in a moment, maine's later works do but serve to carry the train of reasoning a step further by the use of the comparative method in invoking evidence from other sources, notably from irish and hindu law. let us, however, confine ourselves for the moment to "ancient law." maine works out the implications of his theory by showing that it, and it alone, can serve to explain such features of early roman law as agnation, _i.e._ the tracing of descent exclusively through males, and adoption, _i.e._ the preservation of the family against the extinction of male heirs. the perpetual tutelage of women is the consequence of this position. moreover, all the members of the family, except its head, are in a condition best described as _status_: they have no power to acquire property, or to bequeath it, or to enter into contracts in relation to it. the traces of this state of society are clearly visible in the pages of that classical text-book of roman law, the _institutes_ of justinian,[1] compiled in the sixth century a.d., though equally visible is the disintegration wrought in it by the reforming activity of the praetor's edicts. that reformation followed the course of a gradual emancipation of the members of the family, except those under age, from the despotic authority of the father. this gradual substitution of the individual for the family was effected in a variety of ways, but in none more conspicuously than by the development of the idea of contract, _i.e._ of the capacity of the individual to enter into independent agreements with strangers to his family-group by which he was legally bound--an historical process which maine sums up in his famous aphorism that the movement of progressive societies has hitherto been a movement from status to contract. in the chapters on the early history of wills, property, and contract, maine supports his theory by showing that it is the key which unlocks many, if not all, of the problems which those topics present. the chapter on wills--particularly the passage in which he explains what is meant by universal succession--is a brilliant example of maine's analytic power. he shows that a will--in the sense of a secret and revocable disposition of property only taking effect after the death of the testator--is a conception unknown to early law, and that it makes its first appearance as a means of transmitting the exercise of domestic sovereignty, the transfer of the property being only a subsidiary feature; wills only being permitted, in early times, in cases where there was likely to be a failure of proper heirs. the subsequent popularity of wills, and the indulgence with which the law came to regard them, were due to a desire to correct the rigidity of the patria potestas, as reflected in the law of intestate succession, by giving free scope to natural affection. in other words, the conception of relationship as reckoned only through males, and as resting on the continuance of the children within their father's power, gave way, through the instrumentality of the will, to the more modern and more natural conception of relationship. in the chapter on property maine again shows that the theory of its origin in occupancy is too individualistic and that not separate ownership but joint ownership is the really archaic institution. the father was in some sense (we must avoid importing modern terms) the trustee of the joint property of the family. here maine makes an excursion into the fields of the early village community, and has, too, to look elsewhere than to rome, where the village community had already been transformed by coalescence into the city-state. he therefore seeks his examples from india and points to the indian village as an example of the expansion of the family into a larger group of co-proprietors, larger but still bearing traces of its origin to the patriarchal power. and, to quote his own words, "the most important passage in the history of private property is its gradual separation from the co-ownership of kinsmen." the chapter on contract, although it contains some of maine's most suggestive writing, and the chapter on delict and crime, have a less direct bearing on his main thesis except in so far as they go to show that the reason why there is so little in early law of what we call civil, as distinct from criminal, law, and in particular of the law of contract, is to be found in the fact that, in the infancy of society, the law of persons, and with it the law of civil rights, is merged in the common subjection to paternal power. such, putting it in the simplest possible language, is the main argument of _ancient law_. the exigencies of space and of simplicity compel me to pass by, to a large extent, most of the other topics with which maine deals--the place of custom, code, and fiction in the development of early law, the affiliation of international law to the _jus gentium_ and the law of nature, the origins of feudalism and of primogeniture, the early history of delict and crime, and that most remarkable and profound passage in which maine shows the heavy debt of the various sciences to roman law and the influence which it has exerted on the vocabulary of political science, the concepts of moral philosophy, and the doctrines of theology. i must confine myself to two questions: how far did maine develop or modify in his subsequent writings the main thesis of _ancient law_? to what extent has this thesis stood the test of the criticism and research of others? as regards the first point, it is to be remembered that _ancient law_ is but the first, though doubtless the most important, of a whole series of works by its author on the subject of early law. it was followed at intervals by three volumes: _village communities in the east and west_, _early institutions_, and _early law and_ _custom_. in the first of these he dealt with a subject which has excited an enormous degree of attention and not a little controversy among english, french, german, and russian scholars,[2] amounting as it does to nothing less than an investigation into the origin of private property in land. the question has been put in various forms: did it commence with joint (or, as some would put it, less justifiably, communal or corporate) ownership or with individual ownership, and again was the village community free or servile? it is now pretty generally recognised that there was more than one type, though common cultivation was doubtless a feature of them all, and even in india there were at least two types, of which the one presenting several, as opposed to communal, ownership is not the less ancient. but it may well be that, as maitland so often pointed out, much of the controversy has been literally an anachronism; that is to say, that nineteenth-century men have been asking the early ages questions which they could not answer and reading back into early history distinctions which are themselves historical products. ownership is itself a late abstraction developed out of use. we may say with some certainty that family "ownership" preceded individual ownership, but in what sense there was communal ownership by a whole village it is not so easy to say. maine was on surer ground when, as in his studies of irish and hindu law, he confined himself to the more immediate circle of the family group. in his _early institutions_ he subjects the brehon laws of early ireland to a suggestive examination as presenting an example of celtic law largely unaffected by roman influences. he there shows, as he has shown in _ancient law_, that in early times the only social brotherhood recognised was that of kinship, and that almost every form of social organisation, tribe, guild, and religious fraternity, was conceived of under a similitude of it. feudalism converted the village community, based on a real or assumed consanguinity of its members, into the fief in which the relations of tenant and lord were those of contract, while those of the unfree tenant rested on status. in his _early law and custom_ he pursues much the same theme by an examination of hindu law as presenting a peculiarly close implication of early law with religion. here he devotes his attention chiefly to ancestor-worship, a subject which about this time had engaged the attention, as regards its greek and roman forms, of that brilliant frenchman, fustel de coulanges, whose monograph _la cité antique_ is now a classic. as is well known, the right of inheriting a dead man's property and the duty of performing his obsequies are co-relative to this day in hindu law, and his investigation of this subject brings maine back to the subject of the patriarchal power. he points out that both worshipper and the object of worship were exclusively males, and concludes that it was the power of the father which generated the practice of worshipping him, while this practice in turn, by the gradual admission of women to participate in the ceremonies, gradually acted as a solvent upon the power itself. the necessity of finding some one to perform these rites, on failure of direct male heirs, marked the beginning of the recognition of a right in women to inherit. the conception of the family becomes less intense and more extensive. these discussions brought maine, in chapter vii. of _early law and custom_, to reconsider the main theory of _ancient law_ in the light of the criticism to which it had been exposed, and every reader of _ancient law_ who desires to understand maine's exact position in regard to the scope of his generalisations should read for himself the chapter in the later work entitled "theories of primitive society." his theory of the patriarchal power had been criticised by two able and industrious anthropologists, m'lennan and morgan, who, by their investigation of "survivals" among barbarous tribes in our own day, had arrived at the conclusion that, broadly speaking, the normal process through which society had passed was not patriarchal but "matriarchal," _i.e._ understanding by that term a system in which descent is traced through females. it would take up far too much space to enter into this controversy in detail. it is sufficient to say that the counter-theory rested on the assumption that society originated not in families, based on the authority of the father and relationship through him, but in promiscuous hordes among whom the only certain fact, and, consequently, the only recognised basis of relationship, was maternity. maine's answer to this was that his generalisations as to the prevalence of the patriarchal power were confined to indo-european races, and that he did not pretend to dogmatise about other races, also that he was dealing not with all societies but all that had any permanence. he argues that the promiscuous horde, where and when it is found, is to be explained as an abnormal case of retrogression due to a fortuitous scarcity of females resulting in polyandry, and he opposes to the theory of its predominance the potency of sexual jealousy which might serve as only another name for the patriarchal power. on the whole the better opinion is certainly with maine. his theory, at any rate, alone accords with a view of society so soon as it is seen to possess any degree of civilisation and social cohesion. it will be seen that maine's work, like that of most great thinkers, presents a singular coherence and intellectual elegance. it is distinguished also by an extraordinary wide range of vision. he lays under contribution with equal felicity and suggestiveness the old testament, the homeric poems, the latin dramatists, the laws of the barbarians, the sacerdotal laws of the hindus, the oracles of the brehon caste, and the writings of the roman jurists. in other words, he was a master of the comparative method. few writers have thrown so much light on the development of the human mind in its social relations. we know now--a hundred disciples have followed in maine's footsteps and applied his teaching--how slow is the growth of the human intellect in these matters, with what painful steps man learns to generalise, how convulsively he clings in the infancy of civilisation to the formal, the material, the realistic aspects of things, how late he develops such abstractions as "the state." in all this maine first showed the way. as sir frederick pollock has admirably put it- nowadays it may be said that "all have got the seed," but this is no justification for forgetting who first cleared and sowed the ground. we may till fields that the master left untouched, and one man will bring a better ox to yoke to the plough, and another a worse; but it is the master's plough still. we may conclude with some remarks on maine's views of the contemporary problems of political society. maine was what, for want of a better term, may be called a conservative, and, indeed, it may be doubted whether, with the single exception of burke, any english writer has done more to provide english conservatives with reasons for the faith that is in them. he has set forth his views in a collection of polemical essays under the title of _popular government_, which were given to the world in book form in 1885. he viewed the advent of democracy with more distrust than alarm--he appears to have thought it a form of government which could not last--and he has an unerring eye for its weaknesses.[3] indeed, his remarks on the facility with which democracy yields itself to manipulation by wire-pullers, newspapers, and demagogues, have found not a little confirmation in such studies of the actual working of democratic government as m. ostrogorski's _democracy and the organisation of political parties_. maine emphasised the tyranny of majorities, the enslavement of untutored minds by political catchwords, their susceptibility to "suggestion," their readiness to adopt vicarious opinion in preference to an intellectual exercise of their own volition. it is not surprising that the writer who had subjected the theories of the social contract to such merciless criticism sighed for a scientific analysis of political terms as the first step to clear thinking about politics. here he was on strong ground, but for such an analysis we have yet to wait.[4] he seems to have placed his hopes in the adoption of some kind of written constitution which, like the american prototype, would safeguard us from fundamental changes by the caprice of a single assembly. but this is not the place to pursue such highly debateable matters. enough if we say that the man who wishes to serve an apprenticeship to an intelligent understanding of the political society of the present cannot do better than begin by a careful study of maine's researches into the political society of the past. j.h. morgan. _note._--the reader who desires to study maine in the light of modern criticism is recommended to read sir f. pollock's "notes on maine's _ancient law_" (published by john murray at 2_s._ 6_d._, or, with the text, at 5_s._). the best short study of maine with which i am acquainted is the article by professor vinogradoff in the _law quarterly review_ for april 1904. the field of research covered by maine in his various writings is so vast that it is impossible to refer the reader, except at great length, to anything like an adequate list of later books on the subjects of his investigation. in addition to the works on the village community mentioned in a previous footnote, i may, however, refer the beginner to mr. edward jenks' little book on _the history of politics_ in dent's primers, to professor ashley's translation of a fragment of fustel de coulanges under the title of _the origin of property in land_, and to sir frederick pollock's brilliant little book, _the expansion of the common law_. the reader is also recommended to study mr. h.a.l. fisher's succinct survey of the contributions of maitland to legal history under the title of _f.w. maitland; an appreciation_ (cambridge university press). one of the most brilliant and ingenious studies of the origins of european civilisation is to be found in the work of the great german jurist, ihering, _die vorgeschichte der indo-europder_, translated into english under the title of _the early history of the indo-european races_ (sonnenschein, 1897). [1] the reader who desires to pursue the subject by reference to one of maine's chief authorities is recommended to read the translation of the _institutes_ by sandars. [2] english literature on the subject is best studied in maitland's _domesday book and beyond_, vinogradoff's _the growth of the manor_ and _villeinage in england_ (with an excellent historical introduction), and seebohm's _english village community_. [3] witness the characteristic sentence: "on the whole they [_i.e._ the studies of earlier society] suggest that the differences which, after ages of change, separate the civilised man from savage or barbarian, are not so great as the vulgar opinion would have them.... like the savage, he is a man of party with a newspaper for a totem ... and like a savage he is apt to make of his totem his god." [4] something of the kind was done many years ago by sir george cornewall lewis in his little book on the _use and abuse of political terms_. i have attempted to carry the task a step farther in an article which appeared in the form of a review of lord morley's "history and politics" in the _nineteenth century_ for march 1913. bibliography navis ornate atque armata in aquam deducitur (prize poem), 1842; the birth of the prince of wales (prize poem), 1842; cæsar ad rubiconem constitit (prize poem), 1842; memoir of h.f. hallam, 1851; roman law and legal education (essay), 1856; ancient law: its connection with the early history of society and its relation to modern ideas, 1861; short essays and reviews on the educational policy of the government of india, 1866; village communities in the east and west (lectures), 1871; the early history of the property of married women as collected from roman and hindoo law (lecture), 1873; the effects of observation of india on modern european thought (lecture), 1875; lectures on the early history of institutions, 1875; village communities, etc.; third ed. with other lectures and addresses, 1876; dissertations on early law and custom (selected from lectures), 1883; popular government (four essays), 1885; india [1837-1887] (in "the reign of queen victoria," ed. by thos. humphry ward, vol. i.), 1887; the whewell lectures: international law, 1887, 1888; ancient law (ed. with introduction and notes by sir frederick pollock), 1906; ancient law (allahabad ed., with introduction by k.c. banerji), 1912. contributions to: "morning chronicle," 1851; "cornhill magazine," 1871; "quarterly review," 1886; "saturday review," and "st. james's gazette." a brief memoir of the life of sir henry maine, by sir m.e. grant duff; with some of his indian speeches and minutes, selected by whitley stokes, 1892. preface the chief object of the following pages is to indicate some of the earliest ideas of mankind, as they are reflected in ancient law, and to point out the relation of those ideas to modern thought. much of the inquiry attempted could not have been prosecuted with the slightest hope of a useful result if there had not existed a body of law, like that of the romans, bearing in its earliest portions the traces of the most remote antiquity and supplying from its later rules the staple of the civil institutions by which modern society is even now controlled. the necessity of taking the roman law as a typical system has compelled the author to draw from it what may appear a disproportionate number of his illustrations; but it has not been his intention to write a treatise on roman jurisprudence, and he has as much as possible avoided all discussions which might give that appearance to his work. the space allotted in the third and fourth chapters to certain philosophical theories of the roman jurisconsults has been appropriated to them for two reasons. in the first place, those theories appear to the author to have had a wider and more permanent influence on the thought and action of the world than is usually supposed. secondly, they are believed to be the ultimate source of most of the views which have been prevalent, till quite recently, on the subjects treated of in this volume. it was impossible for the author to proceed far with his undertaking without stating his opinion on the origin, meaning, and value of those speculations. h.s.m. london, _january 1861_. contents chap. page i. ancient codes 1 ii. legal fictions 13 iii. law of nature and equity 26 iv. the modern history of the law of nature 43 v. primitive society and ancient law 67 vi. the early history of testamentary succession 101 vii. ancient and modern ideas respecting wills and successions 127 viii. the early history of property 144 ix. the early history of contract 179 x. the early history of delict and crime 216 index 235 chapter i ancient codes the most celebrated system of jurisprudence known to the world begins, as it ends, with a code. from the commencement to the close of its history, the expositors of roman law consistently employed language which implied that the body of their system rested on the twelve decemviral tables, and therefore on a basis of written law. except in one particular, no institutions anterior to the twelve tables were recognised at rome. the theoretical descent of roman jurisprudence from a code, the theoretical ascription of english law to immemorial unwritten tradition, were the chief reasons why the development of their system differed from the development of ours. neither theory corresponded exactly with the facts, but each produced consequences of the utmost importance. i need hardly say that the publication of the twelve tables is not the earliest point at which we can take up the history of law. the ancient roman code belongs to a class of which almost every civilised nation in the world can show a sample, and which, so far as the roman and hellenic worlds were concerned, were largely diffused over them at epochs not widely distant from one another. they appeared under exceedingly similar circumstances, and were produced, to our knowledge, by very similar causes. unquestionably, many jural phenomena lie behind these codes and preceded them in point of time. not a few documentary records exist which profess to give us information concerning the early phenomena of law; but, until philology has effected a complete analysis of the sanskrit literature, our best sources of knowledge are undoubtedly the greek homeric poems, considered of course not as a history of actual occurrences, but as a description, not wholly idealised, of a state of society known to the writer. however the fancy of the poet may have exaggerated certain features of the heroic age, the prowess of warriors and the potency of gods, there is no reason to believe that it has tampered with moral or metaphysical conceptions which were not yet the subjects of conscious observation; and in this respect the homeric literature is far more trustworthy than those relatively later documents which pretend to give an account of times similarly early, but which were compiled under philosophical or theological influences. if by any means we can determine the early forms of jural conceptions, they will be invaluable to us. these rudimentary ideas are to the jurist what the primary crusts of the earth are to the geologist. they contain, potentially, all the forms in which law has subsequently exhibited itself. the haste or the prejudice which has generally refused them all but the most superficial examination, must bear the blame of the unsatisfactory condition in which we find the science of jurisprudence. the inquiries of the jurist are in truth prosecuted much as inquiry in physics and physiology was prosecuted before observation had taken the place of assumption. theories, plausible and comprehensive, but absolutely unverified, such as the law of nature or the social compact, enjoy a universal preference over sober research into the primitive history of society and law; and they obscure the truth not only by diverting attention from the only quarter in which it can be found, but by that most real and most important influence which, when once entertained and believed in, they are enabled to exercise on the later stages of jurisprudence. the earliest notions connected with the conception, now so fully developed, of a law or rule of life, are those contained in the homeric words "themis" and "themistes." "themis," it is well known, appears in the later greek pantheon as the goddess of justice, but this is a modern and much developed idea, and it is in a very different sense that themis is described in the iliad as the assessor of zeus. it is now clearly seen by all trustworthy observers of the primitive condition of mankind that, in the infancy of the race, men could only account for sustained or periodically recurring action by supposing a personal agent. thus, the wind blowing was a person and of course a divine person; the sun rising, culminating, and setting was a person and a divine person; the earth yielding her increase was a person and divine. as, then, in the physical world, so in the moral. when a king decided a dispute by a sentence, the judgment was assumed to be the result of direct inspiration. the divine agent, suggesting judicial awards to kings or to gods, the greatest of kings, was _themis_. the peculiarity of the conception is brought out by the use of the plural. _themistes_, themises, the plural of _themis_, are the awards themselves, divinely dictated to the judge. kings are spoken of as if they had a store of "themistes" ready to hand for use; but it must be distinctly understood that they are not laws, but judgments. "zeus, or the human king on earth," says mr. grote, in his history of greece, "is not a lawmaker, but a judge." he is provided with themistes, but, consistently with the belief in their emanation from above, they cannot be supposed to be connected by any thread of principle; they are separate, isolated judgments. even in the homeric poems, we can see that these ideas are transient. parities of circumstance were probably commoner in the simple mechanism of ancient society than they are now, and in the succession of similar cases awards are likely to follow and resemble each other. here we have the germ or rudiment of a custom, a conception posterior to that of themistes or judgments. however strongly we, with our modern associations, may be inclined to lay down _à priori_ that the notion of a custom must precede that of a judicial sentence, and that a judgment must affirm a custom or punish its breach, it seems quite certain that the historical order of the ideas is that in which i have placed them. the homeric word for a custom in the embryo is sometimes "themis" in the singular--more often "dike," the meaning of which visibly fluctuates between a "judgment" and a "custom" or "usage." [greek: nomos], a law, so great and famous a term in the political vocabulary of the later greek society, does not occur in homer. this notion of a divine agency, suggesting the themistes, and itself impersonated in themis, must be kept apart from other primitive beliefs with which a superficial inquirer might confound it. the conception of the deity dictating an entire code or body of law, as in the case of the hindoo laws of menu, seems to belong to a range of ideas more recent and more advanced. "themis" and "themistes" are much less remotely linked with that persuasion which clung so long and so tenaciously to the human mind, of a divine influence underlying and supporting every relation of life, every social institution. in early law, and amid the rudiments of political thought, symptoms of this belief meet us on all sides. a supernatural presidency is supposed to consecrate and keep together all the cardinal institutions of those times, the state, the race, and the family. men, grouped together in the different relations which those institutions imply, are bound to celebrate periodically common rites and to offer common sacrifices; and every now and then the same duty is even more significantly recognised in the purifications and expiations which they perform, and which appear intended to deprecate punishment for involuntary or neglectful disrespect. everybody acquainted with ordinary classical literature will remember the _sacra gentilicia_, which exercised so important an influence on the early roman law of adoption and of wills. and to this hour the hindoo customary law, in which some of the most curious features of primitive society are stereotyped, makes almost all the rights of persons and all the rules of succession hinge on the due solemnisation of fixed ceremonies at the dead man's funeral, that is, at every point where a breach occurs in the continuity of the family. before we quit this stage of jurisprudence, a caution may be usefully given to the english student. bentham, in his _fragment on government_, and austin, in his _province of jurisprudence determined_, resolve every law into a _command_ of the lawgiver, _an obligation_ imposed thereby on the citizen, and a _sanction_ threatened in the event of disobedience; and it is further predicated of the _command_, which is the first element in a law, that it must prescribe, not a single act, but a series or number of acts of the same class or kind. the results of this separation of ingredients tally exactly with the facts of mature jurisprudence; and, by a little straining of language, they may be made to correspond in form with all law, of all kinds, at all epochs. it is not, however, asserted that the notion of law entertained by the generality is even now quite in conformity with this dissection; and it is curious that, the farther we penetrate into the primitive history of thought, the farther we find ourselves from a conception of law which at all resembles a compound of the elements which bentham determined. it is certain that, in the infancy of mankind, no sort of legislature, not even a distinct author of law, is contemplated or conceived of. law has scarcely reached the footing of custom; it is rather a habit. it is, to use a french phrase, "in the air." the only authoritative statement of right and wrong is a judicial sentence after the facts, not one presupposing a law which has been violated, but one which is breathed for the first time by a higher power into the judge's mind at the moment of adjudication. it is of course extremely difficult for us to realise a view so far removed from us in point both of time and of association, but it will become more credible when we dwell more at length on the constitution of ancient society, in which every man, living during the greater part of his life under the patriarchal despotism, was practically controlled in all his actions by a regimen not of law but of caprice. i may add that an englishman should be better able than a foreigner to appreciate the historical fact that the "themistes" preceded any conception of law, because, amid the many inconsistent theories which prevail concerning the character of english jurisprudence, the most popular, or at all events the one which most affects practice, is certainly a theory which assumes that adjudged cases and precedents exist antecedently to rules, principles, and distinctions. the "themistes" have too, it should be remarked, the characteristic which, in the view of bentham and austin, distinguishes single or mere commands from laws. a true law enjoins on all the citizens indifferently a number of acts similar in class or kind; and this is exactly the feature of a law which has most deeply impressed itself on the popular mind, causing the term "law" to be applied to mere uniformities, successions, and similitudes. a _command_ prescribes only a single act, and it is to commands, therefore, that "themistes" are more akin than to laws. they are simply adjudications on insulated states of fact, and do not necessarily follow each other in any orderly sequence. the literature of the heroic age discloses to us law in the germ under the "themistes" and a little more developed in the conception of "dike." the next stage which we reach in the history of jurisprudence is strongly marked and surrounded by the utmost interest. mr. grote, in the second part and second chapter of his history, has fully described the mode in which society gradually clothed itself with a different character from that delineated by homer. heroic kingship depended partly on divinely given prerogative, and partly on the possession of supereminent strength, courage, and wisdom. gradually, as the impression of the monarch's sacredness became weakened, and feeble members occurred in the series of hereditary kings, the royal power decayed, and at last gave way to the dominion of aristocracies. if language so precise can be used of the revolution, we might say that the office of the king was usurped by that council of chiefs which homer repeatedly alludes to and depicts. at all events from an epoch of kingly rule we come everywhere in europe to an era of oligarchies; and even where the name of the monarchical functions does not absolutely disappear, the authority of the king is reduced to a mere shadow. he becomes a mere hereditary general, as in lacedæmon, a mere functionary, as the king archon at athens, or a mere formal hierophant, like the _rex sacrificulus_ at rome. in greece, italy, and asia minor, the dominant orders seem to have universally consisted of a number of families united by an assumed relationship in blood, and, though they all appear at first to have laid claim to a quasi-sacred character, their strength does not seem to have resided in their pretended sanctity. unless they were prematurely overthrown by the popular party, they all ultimately approached very closely to what we should now understand by a political aristocracy. the changes which society underwent in the communities of the further asia occurred of course at periods long anterior in point of time to these revolutions of the italian and hellenic worlds; but their relative place in civilisation appears to have been the same, and they seem to have been exceedingly similar in general character. there is some evidence that the races which were subsequently united under the persian monarchy, and those which peopled the peninsula of india, had all their heroic age and their era of aristocracies; but a military and a religious oligarchy appear to have grown up separately, nor was the authority of the king generally superseded. contrary, too, to the course of events in the west, the religious element in the east tended to get the better of the military and political. military and civil aristocracies disappear, annihilated or crushed into insignificance between the kings and the sacerdotal order; and the ultimate result at which we arrive is, a monarch enjoying great power, but circumscribed by the privileges of a caste of priests. with these differences, however, that in the east aristocracies became religious, in the west civil or political, the proposition that a historical era of aristocracies succeeded a historical era of heroic kings may be considered as true, if not of all mankind, at all events of all branches of the indo-european family of nations. the important point for the jurist is that these aristocracies were universally the depositaries and administrators of law. they seem to have succeeded to the prerogatives of the king, with the important difference, however, that they do not appear to have pretended to direct inspiration for each sentence. the connection of ideas which caused the judgments of the patriarchal chieftain to be attributed to superhuman dictation still shows itself here and there in the claim of a divine origin for the entire body of rules, or for certain parts of it, but the progress of thought no longer permits the solution of particular disputes to be explained by supposing an extra-human interposition. what the juristical oligarchy now claims is to monopolise the _knowledge_ of the laws, to have the exclusive possession of the principles by which quarrels are decided. we have in fact arrived at the epoch of customary law. customs or observances now exist as a substantive aggregate, and are assumed to be precisely known to the aristocratic order or caste. our authorities leave us no doubt that the trust lodged with the oligarchy was sometimes abused, but it certainly ought not to be regarded as a mere usurpation or engine of tyranny. before the invention of writing, and during the infancy of the art, an aristocracy invested with judicial privileges formed the only expedient by which accurate preservation of the customs of the race or tribe could be at all approximated to. their genuineness was, so far as possible, insured by confiding them to the recollection of a limited portion of the community. the epoch of customary law, and of its custody by a privileged order, is a very remarkable one. the condition of the jurisprudence which it implies has left traces which may still be detected in legal and popular phraseology. the law, thus known exclusively to a privileged minority, whether a caste, an aristocracy, a priestly tribe, or a sacerdotal college is true unwritten law. except this, there is no such thing as unwritten law in the world. english case-law is sometimes spoken of as unwritten, and there are some english theorists who assure us that if a code of english jurisprudence were prepared we should be turning unwritten law into written--a conversion, as they insist, if not of doubtful policy, at all events of the greatest seriousness. now, it is quite true that there was once a period at which the english common law might reasonably have been termed unwritten. the elder english judges did really pretend to knowledge of rules, principles, and distinctions which were not entirely revealed to the bar and to the lay-public. whether all the law which they claimed to monopolise was really unwritten, is exceedingly questionable; but at all events, on the assumption that there was once a large mass of civil and criminal rules known exclusively to the judges, it presently ceased to be unwritten law. as soon as the courts at westminster hall began to base their judgments on cases recorded, whether in the year books or elsewhere, the law which they administered became written law. at the present moment a rule of english law has first to be disentangled from the recorded facts of adjudged printed precedents, then thrown into a form of words varying with the taste, precision, and knowledge of the particular judge, and then applied to the circumstances of the case for adjudication. but at no stage of this process has it any characteristic which distinguishes it from written law. it is written case-law, and only different from code-law because it is written in a different way. from the period of customary law we come to another sharply defined epoch in the history of jurisprudence. we arrive at the era of codes, those ancient codes of which the twelve tables of rome were the most famous specimen. in greece, in italy, on the hellenised sea-board of western asia, these codes all made their appearance at periods much the same everywhere, not, i mean, at periods identical in point of time, but similar in point of the relative progress of each community. everywhere, in the countries i have named, laws engraven on tablets and published to the people take the place of usages deposited with the recollection of a privileged oligarchy. it must not for a moment be supposed that the refined considerations now urged in favour of what is called codification had any part or place in the change i have described. the ancient codes were doubtless originally suggested by the discovery and diffusion of the art of writing. it is true that the aristocracies seem to have abused their monopoly of legal knowledge; and at all events their exclusive possession of the law was a formidable impediment to the success of those popular movements which began to be universal in the western world. but, though democratic sentiment may have added to their popularity, the codes were certainly in the main a direct result of the invention of writing. inscribed tablets were seen to be a better depositary of law, and a better security for its accurate preservation, than the memory of a number of persons however strengthened by habitual exercise. the roman code belongs to the class of codes i have been describing. their value did not consist in any approach to symmetrical classifications, or to terseness and clearness of expression, but in their publicity, and in the knowledge which they furnished to everybody, as to what he was to do, and what not to do. it is, indeed, true that the twelve tables of rome do exhibit some traces of systematic arrangement, but this is probably explained by the tradition that the framers of that body of law called in the assistance of greeks who enjoyed the later greek experience in the art of law-making. the fragments of the attic code of solon show, however, that it had but little order, and probably the laws of draco had even less. quite enough too remains of these collections, both in the east and in the west, to show that they mingled up religious, civil, and merely moral ordinances, without any regard to differences in their essential character; and this is consistent with all we know of early thought from other sources, the severance of law from morality, and of religion from law, belonging very distinctly to the _later_ stages of mental progress. but, whatever to a modern eye are the singularities of these codes, their importance to ancient societies was unspeakable. the question--and it was one which affected the whole future of each community--was not so much whether there should be a code at all, for the majority of ancient societies seem to have obtained them sooner or later, and, but for the great interruption in the history of jurisprudence created by feudalism, it is likely that all modern law would be distinctly traceable to one or more of these fountain-heads. but the point on which turned the history of the race was, at what period, at what stage of their social progress, they should have their laws put into writing. in the western world the plebeian or popular element in each state successfully assailed the oligarchical monopoly, and a code was nearly universally obtained _early_ in the history of the commonwealth. but in the east, as i have before mentioned, the ruling aristocracies tended to become religious rather than military or political, and gained, therefore, rather than lost in power; while in some instances the physical conformation of asiatic countries had the effect of making individual communities larger and more numerous than in the west; and it is a known social law that the larger the space over which a particular set of institutions is diffused, the greater is its tenacity and vitality. from whatever cause, the codes obtained by eastern societies were obtained, relatively, much later than by western, and wore a very different character. the religious oligarchies of asia, either for their own guidance, or for the relief of their memory, or for the instruction of their disciples, seem in all cases to have ultimately embodied their legal learning in a code; but the opportunity of increasing and consolidating their influence was probably too tempting to be resisted. their complete monopoly of legal knowledge appears to have enabled them to put off on the world collections, not so much of the rules actually observed as of the rules which the priestly order considered proper to be observed. the hindoo code, called the laws of menu, which is certainly a brahmin compilation, undoubtedly enshrines many genuine observances of the hindoo race, but the opinion of the best contemporary orientalists is, that it does not, as a whole, represent a set of rules ever actually administered in hindostan. it is, in great part, an ideal picture of that which, in the view of the brahmins, _ought_ to be the law. it is consistent with human nature and with the special motives of their authors, that codes like that of menu should pretend to the highest antiquity and claim to have emanated in their complete form from the deity. menu, according to hindoo mythology, is an emanation from the supreme god; but the compilation which bears his name, though its exact date is not easily discovered, is, in point of the relative progress of hindoo jurisprudence, a recent production. among the chief advantages which the twelve tables and similar codes conferred on the societies which obtained them, was the protection which they afforded against the frauds of the privileged oligarchy and also against the spontaneous depravation and debasement of the national institutions. the roman code was merely an enunciation in words of the existing customs of the roman people. relatively to the progress of the romans in civilisation, it was a remarkably early code, and it was published at a time when roman society had barely emerged from that intellectual condition in which civil obligation and religious duty are inevitably confounded. now a barbarous society practising a body of customs, is exposed to some especial dangers which may be absolutely fatal to its progress in civilisation. the usages which a particular community is found to have adopted in its infancy and in its primitive seats are generally those which are on the whole best suited to promote its physical and moral well-being; and, if they are retained in their integrity until new social wants have taught new practices, the upward march of society is almost certain. but unhappily there is a law of development which ever threatens to operate upon unwritten usage. the customs are of course obeyed by multitudes who are incapable of understanding the true ground of their expediency, and who are therefore left inevitably to invent superstitious reasons for their permanence. a process then commences which may be shortly described by saying that usage which is reasonable generates usage which is unreasonable. analogy, the most valuable of instruments in the maturity of jurisprudence, is the most dangerous of snares in its infancy. prohibitions and ordinances, originally confined, for good reasons, to a single description of acts, are made to apply to all acts of the same class, because a man menaced with the anger of the gods for doing one thing, feels a natural terror in doing any other thing which is remotely like it. after one kind of food has been interdicted for sanitary reasons, the prohibition is extended to all food resembling it, though the resemblance occasionally depends on analogies the most fanciful. so, again, a wise provision for insuring general cleanliness dictates in time long routines of ceremonial ablution; and that division into classes which at a particular crisis of social history is necessary for the maintenance of the national existence degenerates into the most disastrous and blighting of all human institutions--caste. the fate of the hindoo law is, in fact, the measure of the value of the roman code. ethnology shows us that the romans and the hindoos sprang from the same original stock, and there is indeed a striking resemblance between what appear to have been their original customs. even now, hindoo jurisprudence has a substratum of forethought and sound judgment, but irrational imitation has engrafted in it an immense apparatus of cruel absurdities. from these corruptions the romans were protected by their code. it was compiled while the usage was still wholesome, and a hundred years afterwards it might have been too late. the hindoo law has been to a great extent embodied in writing, but, ancient as in one sense are the compendia which still exist in sanskrit, they contain ample evidence that they were drawn up after the mischief had been done. we are not of course entitled to say that if the twelve tables had not been published the romans would have been condemned to a civilisation as feeble and perverted as that of the hindoos, but thus much at least is certain, that _with_ their code they were exempt from the very chance of so unhappy a destiny. chapter ii legal fictions when primitive law has once been embodied in a code, there is an end to what may be called its spontaneous development. henceforward the changes effected in it, if effected at all, are effected deliberately and from without. it is impossible to suppose that the customs of any race or tribe remained unaltered during the whole of the long--in some instances the immense--interval between their declaration by a patriarchal monarch and their publication in writing. it would be unsafe too to affirm that no part of the alteration was effected deliberately. but from the little we know of the progress of law during this period, we are justified in assuming that set purpose had the very smallest share in producing change. such innovations on the earliest usages as disclose themselves appear to have been dictated by feelings and modes of thought which, under our present mental conditions, we are unable to comprehend. a new era begins, however, with the codes. wherever, after this epoch, we trace the course of legal modification we are able to attribute it to the conscious desire of improvement, or at all events of compassing objects other than those which were aimed at in the primitive times. it may seem at first sight that no general propositions worth trusting can be elicited from the history of legal systems subsequent to the codes. the field is too vast. we cannot be sure that we have included a sufficient number of phenomena in our observations, or that we accurately understand those which we have observed. but the undertaking will be seen to be more feasible, if we consider that after the epoch of codes the distinction between stationary and progressive societies begins to make itself felt. it is only with the progressive that we are concerned, and nothing is more remarkable than their extreme fewness. in spite of overwhelming evidence, it is most difficult for a citizen of western europe to bring thoroughly home to himself the truth that the civilisation which surrounds him is a rare exception in the history of the world. the tone of thought common among us, all our hopes, fears, and speculations, would be materially affected, if we had vividly before us the relation of the progressive races to the totality of human life. it is indisputable that much the greatest part of mankind has never shown a particle of desire that its civil institutions should be improved since the moment when external completeness was first given to them by their embodiment in some permanent record. one set of usages has occasionally been violently overthrown and superseded by another; here and there a primitive code, pretending to a supernatural origin, has been greatly extended, and distorted into the most surprising forms, by the perversity of sacerdotal commentators; but, except in a small section of the world, there has been nothing like the gradual amelioration of a legal system. there has been material civilisation, but, instead of the civilisation expanding the law, the law has limited the civilisation. the study of races in their primitive condition affords us some clue to the point at which the development of certain societies has stopped. we can see that brahminical india has not passed beyond a stage which occurs in the history of all the families of mankind, the stage at which a rule of law is not yet discriminated from a rule of religion. the members of such a society consider that the transgression of a religious ordinance should be punished by civil penalties, and that the violation of a civil duty exposes the delinquent to divine correction. in china this point has been passed, but progress seems to have been there arrested, because the civil laws are coextensive with all the ideas of which the race is capable. the difference between the stationary and progressive societies is, however, one of the great secrets which inquiry has yet to penetrate. among partial explanations of it i venture to place the considerations urged at the end of the last chapter. it may further be remarked that no one is likely to succeed in the investigation who does not clearly realise that the stationary condition of the human race is the rule, the progressive the exception. and another indispensable condition of success is an accurate knowledge of roman law in all its principal stages. the roman jurisprudence has the longest known history of any set of human institutions. the character of all the changes which it underwent is tolerably well ascertained. from its commencement to its close, it was progressively modified for the better, or for what the authors of the modification conceived to be the better, and the course of improvement was continued through periods at which all the rest of human thought and action materially slackened its pace, and repeatedly threatened to settle down into stagnation. i confine myself in what follows to the progressive societies. with respect to them it may be laid down that social necessities and social opinion are always more or less in advance of law. we may come indefinitely near to the closing of the gap between them, but it has a perpetual tendency to reopen. law is stable; the societies we are speaking of are progressive. the greater or less happiness of a people depends on the degree of promptitude with which the gulf is narrowed. a general proposition of some value may be advanced with respect to the agencies by which law is brought into harmony with society. these instrumentalities seem to me to be three in number, legal fictions, equity, and legislation. their historical order is that in which i have placed them. sometimes two of them will be seen operating together, and there are legal systems which have escaped the influence of one or other of them. but i know of no instance in which the order of their appearance has been changed or inverted. the early history of one of them, equity, is universally obscure, and hence it may be thought by some that certain isolated statutes, reformatory of the civil law, are older than any equitable jurisdiction. my own belief is that remedial equity is everywhere older than remedial legislation; but, should this be not strictly true, it would only be necessary to limit the proposition respecting their order of sequence to the periods at which they exercise a sustained and substantial influence in transforming the original law. i employ the word "fiction" in a sense considerably wider than that in which english lawyers are accustomed to use it, and with a meaning much more extensive than that which belonged to the roman "fictiones." fictio, in old roman law, is properly a term of pleading, and signifies a false averment on the part of the plaintiff which the defendant was not allowed to traverse; such, for example, as an averment that the plaintiff was a roman citizen, when in truth he was a foreigner. the object of these "fictiones" was, of course, to give jurisdiction, and they therefore strongly resembled the allegations in the writs of the english queen's bench, and exchequer, by which those courts contrived to usurp the jurisdiction of the common pleas:--the allegation that the defendant was in custody of the king's marshal, or that the plaintiff was the king's debtor, and could not pay his debt by reason of the defendant's default. but i now employ the expression "legal fiction" to signify any assumption which conceals, or affects to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified. the words, therefore, include the instances of fictions which i have cited from the english and roman law, but they embrace much more, for i should speak both of the english case-law and of the roman responsa prudentum as resting on fictions. both these examples will be examined presently. the _fact_ is in both cases that the law has been wholly changed; the _fiction_ is that it remains what it always was. it is not difficult to understand why fictions in all their forms are particularly congenial to the infancy of society. they satisfy the desire for improvement, which is not quite wanting, at the same time that they do not offend the superstitious disrelish for change which is always present. at a particular stage of social progress they are invaluable expedients for overcoming the rigidity of law, and, indeed, without one of them, the fiction of adoption which permits the family tie to be artificially created, it is difficult to understand how society would ever have escaped from its swaddling clothes, and taken its first steps towards civilisation. we must, therefore, not suffer ourselves to be affected by the ridicule which bentham pours on legal fictions wherever he meets them. to revile them as merely fraudulent is to betray ignorance of their peculiar office in the historical development of law. but at the same time it would be equally foolish to agree with those theorists, who, discerning that fictions have had their uses, argue that they ought to be stereotyped in our system. they have had their day, but it has long since gone by. it is unworthy of us to effect an admittedly beneficial object by so rude a device as a legal fiction. i cannot admit any anomaly to be innocent, which makes the law either more difficult to understand or harder to arrange in harmonious order. now legal fictions are the greatest of obstacles to symmetrical classification. the rule of law remains sticking in the system, but it is a mere shell. it has been long ago undermined, and a new rule hides itself under its cover. hence there is at once a difficulty in knowing whether the rule which is actually operative should be classed in its true or in its apparent place, and minds of different casts will differ as to the branch of the alternative which ought to be selected. if the english law is ever to assume an orderly distribution, it will be necessary to prune away the legal fictions which, in spite of some recent legislative improvements, are still abundant in it. the next instrumentality by which the adaptation of law to social wants is carried on i call equity, meaning by that word any body of rules existing by the side of the original civil law, founded on distinct principles and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent in those principles. the equity whether of the roman prætors or of the english chancellors, differs from the fictions which in each case preceded it, in that the interference with law is open and avowed. on the other hand, it differs from legislation, the agent of legal improvement which comes after it, in that its claim to authority is grounded, not on the prerogative of any external person or body, not even on that of the magistrate who enunciates it, but on the special nature of its principles, to which it is alleged that all law ought to conform. the very conception of a set of principles, invested with a higher sacredness than those of the original law and demanding application independently of the consent of any external body, belongs to a much more advanced stage of thought than that to which legal fictions originally suggested themselves. legislation, the enactments of a legislature which, whether it take the form of an autocratic prince or of a parliamentary assembly, is the assumed organ of the entire society, is the last of the ameliorating instrumentalities. it differs from legal fictions just as equity differs from them, and it is also distinguished from equity, as deriving its authority from an external body or person. its obligatory force is independent of its principles. the legislature, whatever be the actual restraints imposed on it by public opinion, is in theory empowered to impose what obligations it pleases on the members of the community. there is nothing to prevent its legislating in the wantonness of caprice. legislation may be dictated by equity, if that last word be used to indicate some standard of right and wrong to which its enactments happen to be adjusted; but then these enactments are indebted for their binding force to the authority of the legislature and not to that of the principles on which the legislature acted; and thus they differ from rules of equity, in the technical sense of the word, which pretend to a paramount sacredness entitling them at once to the recognition of the courts even without the concurrence of prince or parliamentary assembly. it is the more necessary to note these differences, because a student of bentham would be apt to confound fictions, equity, and statute law under the single head of legislation. they all, he would say, involve _law-making_; they differ only in respect of the machinery by which the new law is produced. that is perfectly true, and we must never forget it; but it furnishes no reason why we should deprive ourselves of so convenient a term as legislation in the special sense. legislation and equity are disjoined in the popular mind and in the minds of most lawyers; and it will never do to neglect the distinction between them, however conventional, when important practical consequences follow from it. it would be easy to select from almost any regularly developed body of rules examples of _legal fictions_, which at once betray their true character to the modern observer. in the two instances which i proceed to consider, the nature of the expedient employed is not so readily detected. the first authors of these fictions did not perhaps intend to innovate, certainly did not wish to be suspected of innovating. there are, moreover, and always have been, persons who refuse to see any fiction in the process, and conventional language bears out their refusal. no examples, therefore, can be better calculated to illustrate the wide diffusion of legal fictions, and the efficiency with which they perform their two-fold office of transforming a system of laws and of concealing the transformation. we in england are well accustomed to the extension, modification, and improvement of law by a machinery which, in theory, is incapable of altering one jot or one line of existing jurisprudence. the process by which this virtual legislation is effected is not so much insensible as unacknowledged. with respect to that great portion of our legal system which is enshrined in cases and recorded in law reports, we habitually employ a double language and entertain, as it would appear, a double and inconsistent set of ideas. when a group of facts come before an english court for adjudication, the whole course of the discussion between the judge and the advocate assumes that no question is, or can be, raised which will call for the application of any principles but old ones, or any distinctions but such as have long since been allowed. it is taken absolutely for granted that there is somewhere a rule of known law which will cover the facts of the dispute now litigated, and that, if such a rule be not discovered, it is only that the necessary patience, knowledge, or acumen is not forthcoming to detect it. yet the moment the judgment has been rendered and reported, we slide unconsciously or unavowedly into a new language and a new train of thought. we now admit that the new decision _has_ modified the law. the rules applicable have, to use the very inaccurate expression sometimes employed, become more elastic. in fact they have been changed. a clear addition has been made to the precedents, and the canon of law elicited by comparing the precedents is not the same with that which would have been obtained if the series of cases had been curtailed by a single example. the fact that the old rule has been repealed, and that a new one has replaced it, eludes us, because we are not in the habit of throwing into precise language the legal formulas which we derive from the precedents, so that a change in their tenor is not easily detected unless it is violent and glaring. i shall not now pause to consider at length the causes which have led english lawyers to acquiesce in these curious anomalies. probably it will be found that originally it was the received doctrine that somewhere, _in nubibus_ or _in gremio magistratuum_, there existed a complete, coherent, symmetrical body of english law, of an amplitude sufficient to furnish principles which would apply to any conceivable combination of circumstances. the theory was at first much more thoroughly believed in than it is now, and indeed it may have had a better foundation. the judges of the thirteenth century may have really had at their command a mine of law unrevealed to the bar and to the lay-public, for there is some reason for suspecting that in secret they borrowed freely, though not always wisely, from current compendia of the roman and canon laws. but that storehouse was closed so soon as the points decided at westminster hall became numerous enough to supply a basis for a substantive system of jurisprudence; and now for centuries english practitioners have so expressed themselves as to convey the paradoxical proposition that, except by equity and statute law, nothing has been added to the basis since it was first constituted. we do not admit that our tribunals legislate; we imply that they have never legislated; and yet we maintain that the rules of the english common law, with some assistance from the court of chancery and from parliament, are coextensive with the complicated interests of modern society. a body of law bearing a very close and very instructive resemblance to our case-law in those particulars which i have noticed, was known to the romans under the name of the responsa prudentum, the "answers of the learned in the law." the form of these responses varied a good deal at different periods of the roman jurisprudence, but throughout its whole course they consisted of explanatory glosses on authoritative written documents, and at first they were exclusively collections of opinions interpretative of the twelve tables. as with us, all legal language adjusted itself to the assumption that the text of the old code remained unchanged. there was the express rule. it overrode all glosses and comments, and no one openly admitted that any interpretation of it, however eminent the interpreter, was safe from revision on appeal to the venerable texts. yet in point of fact, books of responses bearing the names of leading jurisconsults obtained an authority at least equal to that of our reported cases, and constantly modified, extended, limited or practically overruled the provisions of the decemviral law. the authors of the new jurisprudence during the whole progress of its formation professed the most sedulous respect for the letter of the code. they were merely explaining it, deciphering it, bringing out its full meaning; but then, in the result, by piecing texts together, by adjusting the law to states of fact which actually presented themselves and by speculating on its possible application to others which might occur, by introducing principles of interpretation derived from the exegesis of other written documents which fell under their observation, they educed a vast variety of canons which had never been dreamed of by the compilers of the twelve tables and which were in truth rarely or never to be found there. all these treatises of the jurisconsults claimed respect on the ground of their assumed conformity with the code, but their comparative authority depended on the reputation of the particular jurisconsults who gave them to the world. any name of universally acknowledged greatness clothed a book of responses with a binding force hardly less than that which belonged to enactments of the legislature; and such a book in its turn constituted a new foundation on which a further body of jurisprudence might rest. the responses of the early lawyers were not however published, in the modern sense, by their author. they were recorded and edited by his pupils, and were not therefore in all probability arranged according to any scheme of classification. the part of the students in these publications must be carefully noted, because the service they rendered to their teacher seems to have been generally repaid by his sedulous attention to the pupils' education. the educational treatises called institutes or commentaries, which are a later fruit of the duty then recognised, are among the most remarkable features of the roman system. it was apparently in these institutional works, and not in the books intended for trained lawyers, that the jurisconsults gave to the public their classifications and their proposals for modifying and improving the technical phraseology. in comparing the roman responsa prudentum with their nearest english counterpart, it must be carefully borne in mind that the authority by which this part of the roman jurisprudence was expounded was not the _bench_, but the _bar_. the decision of a roman tribunal, though conclusive in the particular case, had no ulterior authority except such as was given by the professional repute of the magistrate who happened to be in office for the time. properly speaking, there was no institution at rome during the republic analogous to the english bench, the chambers of imperial germany, or the parliaments of monarchical france. there were magistrates indeed, invested with momentous judicial functions in their several departments, but the tenure of the magistracies was but for a single year, so that they are much less aptly compared to a permanent judicature than to a cycle of offices briskly circulating among the leaders of the bar. much might be said on the origin of a condition of things which looks to us like a startling anomaly, but which was in fact much more congenial than our own system to the spirit of ancient societies, tending, as they always did, to split into distinct orders which, however exclusive themselves, tolerated no professional hierarchy above them. it is remarkable that this system did not produce certain effects which might on the whole have been expected from it. it did not, for example, _popularise_ the roman law--it did not, as in some of the greek republics, lessen the effort of intellect required for the mastery of the science, although its diffusion and authoritative exposition were opposed by no artificial barriers. on the contrary, if it had not been for the operation of a separate set of causes, there were strong probabilities that the roman jurisprudence would have become as minute, technical, and difficult as any system which has since prevailed. again, a consequence which might still more naturally have been looked for, does not appear at any time to have exhibited itself. the jurisconsults, until the liberties of rome were overthrown, formed a class which was quite undefined and must have fluctuated greatly in numbers; nevertheless, there does not seem to have existed a doubt as to the particular individuals whose opinion, in their generation, was conclusive on the cases submitted to them. the vivid pictures of a leading jurisconsult's daily practice which abound in latin literature--the clients from the country flocking to his antechamber in the early morning, and the students standing round with their note-books to record the great lawyer's replies--are seldom or never identified at any given period with more than one or two conspicuous names. owing too to the direct contact of the client and the advocate, the roman people itself seems to have been always alive to the rise and fall of professional reputation, and there is abundance of proof, more particularly in the well-known oration of cicero, _pro muræna_, that the reverence of the commons for forensic success was apt to be excessive rather than deficient. we cannot doubt that the peculiarities which have been noted in the instrumentality by which the development of the roman law was first effected, were the source of its characteristic excellence, its early wealth in principles. the growth and exuberance of principle was fostered, in part, by the competition among the expositors of the law, an influence wholly unknown where there exists a bench, the depositaries intrusted by king or commonwealth with the prerogative of justice. but the chief agency, no doubt, was the uncontrolled multiplication of cases for legal decision. the state of facts which caused genuine perplexity to a country client was not a whit more entitled to form the basis of the jurisconsult's response, or legal decision, than a set of hypothetical circumstances propounded by an ingenious pupil. all combinations of fact were on precisely the same footing, whether they were real or imaginary. it was nothing to the jurisconsult that his opinion was overruled for the moment by the magistrate who adjudicated on his client's case, unless that magistrate happened to rank above him in legal knowledge or the esteem of his profession. i do not, indeed, mean it to be inferred that he would wholly omit to consider his client's advantage, for the client was in earlier times the great lawyer's constituent and at a later period his paymaster, but the main road to the rewards of ambition lay through the good opinion of his order, and it is obvious that under such a system as i have been describing this was much more likely to be secured by viewing each case as an illustration of a great principle, or an exemplification of a broad rule, than by merely shaping it for an insulated forensic triumph. a still more powerful influence must have been exercised by the want of any distinct check on the suggestion or invention of possible questions. where the data can be multiplied at pleasure, the facilities for evolving a general rule are immensely increased. as the law is administered among ourselves, the judge cannot travel out of the sets of facts exhibited before him or before his predecessors. accordingly each group of circumstances which is adjudicated upon receives, to employ a gallicism, a sort of consecration. it acquires certain qualities which distinguish it from every other case genuine or hypothetical. but at rome, as i have attempted to explain, there was nothing resembling a bench or chamber of judges; and therefore no combination of facts possessed any particular value more than another. when a difficulty came for opinion before the jurisconsult, there was nothing to prevent a person endowed with a nice perception of analogy from at once proceeding to adduce and consider an entire class of supposed questions with which a particular feature connected it. whatever were the practical advice given to the client, the _responsum_ treasured up in the note-books of listening pupils would doubtless contemplate the circumstances as governed by a great principle, or included in a sweeping rule. nothing like this has ever been possible among ourselves, and it should be acknowledged that in many criticisms passed on the english law the manner in which it has been enunciated seems to have been lost sight of. the hesitation of our courts in declaring principles may be much more reasonably attributed to the comparative scantiness of our precedents, voluminous as they appear to him who is acquainted with no other system, than to the temper of our judges. it is true that in the wealth of legal principle we are considerably poorer than several modern european nations, but they, it must be remembered, took the roman jurisprudence for the foundation of their civil institutions. they built the _débris_ of the roman law into their walls; but in the materials, and workmanship of the residue there is not much which distinguishes it favourably from the structure erected by the english judicature. the period of roman freedom was the period during which the stamp of a distinctive character was impressed on the roman jurisprudence; and through all the earlier part of it, it was by the responses of the jurisconsults that the development of the law was mainly carried on. but as we approach the fall of the republic there are signs that the responses are assuming a form which must have been fatal to their farther expansion. they are becoming systematised and reduced into compendia. q. mucius scævola, the pontifex, is said to have published a manual of the entire civil law, and there are traces in the writings of cicero of growing disrelish for the old methods, as compared with the more active instruments of legal innovation. other agencies had in fact by this time been brought to bear on the law. the edict, or annual proclamation of the prætor, had risen into credit as the principal engine of law reform, and l. cornelius sylla, by causing to be enacted the great group of statutes called the _leges corneliæ_, had shown what rapid and speedy improvements can be effected by direct legislation. the final blow to the responses was dealt by augustus, who limited to a few leading jurisconsults the right of giving binding opinions on cases submitted to them, a change which, though it brings us nearer the ideas of the modern world, must obviously have altered fundamentally the characteristics of the legal profession and the nature of its influence on roman law. at a later period another school of jurisconsults arose, the great lights of jurisprudence for all time. but ulpian and paulus, gaius and papinian, were not authors of responses. their works were regular treatises on particular departments of the law, more especially on the prætor's edict. the _equity_ of the romans and the prætorian edict by which it was worked into their system, will be considered in the next chapter. of the statute law it is only necessary to say that it was scanty during the republic, but became very voluminous under the empire. in the youth and infancy of a nation it is a rare thing for the legislature to be called into action for the general reform of private law. the cry of the people is not for change in the laws, which are usually valued above their real worth, but solely for their pure, complete, and easy administration; and recourse to the legislative body is generally directed to the removal of some great abuse, or the decision of some incurable quarrel between classes and dynasties. there seems in the minds of the romans to have been some association between the enactment of a large body of statutes and the settlement of society after a great civil commotion. sylla signalised his reconstitution of the republic by the leges corneliæ; julius cæsar contemplated vast additions to the statute law; augustus caused to be passed the all-important group of leges juliæ; and among later emperors the most active promulgators of constitutions are princes who, like constantine, have the concerns of the world to readjust. the true period of roman statute law does not begin till the establishment of the empire. the enactments of the emperors, clothed at first in the pretence of popular sanction, but afterwards emanating undisguisedly from the imperial prerogative, extend in increasing massiveness from the consolidation of augustus's power to the publication of the code of justinian. it will be seen that even in the reign of the second emperor a considerable approximation is made to that condition of the law and that mode of administering it with which we are all familiar. a statute law and a limited board of expositors have risen into being; a permanent court of appeal and a collection of approved commentaries will very shortly be added; and thus we are brought close on the ideas of our own day. chapter iii law of nature and equity the theory of a set of legal principles, entitled by their intrinsic superiority to supersede the older law, very early obtained currency both in the roman state and in england. such a body of principles, existing in any system, has in the foregoing chapters been denominated equity, a term which, as will presently be seen, was one (though only one) of the designations by which this agent of legal change was known to the roman jurisconsults. the jurisprudence of the court of chancery, which bears the name of equity in england, could only be adequately discussed in a separate treatise. it is extremely complex in its texture and derives its materials from several heterogeneous sources. the early ecclesiastical chancellors contributed to it, from the canon law, many of the principles which lie deepest in its structure. the roman law, more fertile than the canon law in rules applicable to secular disputes, was not seldom resorted to by a later generation of chancery judges, amid whose recorded dicta we often find entire texts from the _corpus juris civilis_ imbedded, with their terms unaltered, though their origin is never acknowledged. still more recently, and particularly at the middle and during the latter half of the eighteenth century, the mixed systems of jurisprudence and morals constructed by the publicists of the low countries appear to have been much studied by english lawyers, and from the chancellorship of lord talbot to the commencement of lord eldon's chancellorship these works had considerable effect on the rulings of the court of chancery. the system, which obtained its ingredients from these various quarters, was greatly controlled in its growth by the necessity imposed on it of conforming itself to the analogies of the common law, but it has always answered the description of a body of comparatively novel legal principles claiming to override the older jurisprudence of the country on the strength of an intrinsic ethical superiority. the equity of rome was a much simpler structure, and its development from its first appearance can be much more easily traced. both its character and its history deserve attentive examination. it is the root of several conceptions which have exercised profound influence on human thought, and through human thought have seriously affected the destinies of mankind. the romans described their legal system as consisting of two ingredients. "all nations," says the institutional treatise published under the authority of the emperor justinian, "who are ruled by laws and customs, are governed partly by their own particular laws, and partly by those laws which are common to all mankind. the law which a people enacts is called the civil law of that people, but that which natural reason appoints for all mankind is called the law of nations, because all nations use it." the part of the law "which natural reason appoints for all mankind" was the element which the edict of the prætor was supposed to have worked into roman jurisprudence. elsewhere it is styled more simply jus naturale, or the law of nature; and its ordinances are said to be dictated by natural equity (_naturalis æquitas_) as well as by natural reason. i shall attempt to discover the origin of these famous phrases, law of nations, law of nature, equity, and to determine how the conceptions which they indicate are related to one another. the most superficial student of roman history must be struck by the extraordinary degree in which the fortunes of the republic were affected by the presence of foreigners, under different names, on her soil. the causes of this immigration are discernible enough at a later period, for we can readily understand why men of all races should flock to the mistress of the world; but the same phenomenon of a large population of foreigners and denizens meets us in the very earliest records of the roman state. no doubt, the instability of society in ancient italy, composed as it was in great measure of robber tribes, gave men considerable inducement to locate themselves in the territory of any community strong enough to protect itself and them from external attack, even though protection should be purchased at the cost of heavy taxation, political disfranchisement, and much social humiliation. it is probable, however, that this explanation is imperfect, and that it could only be completed by taking into account those active commercial relations which, though they are little reflected in the military traditions of the republic, rome appears certainly to have had with carthage and with the interior of italy in pre-historic times. whatever were the circumstances to which it was attributable, the foreign element in the commonwealth determined the whole course of its history, which, at all its stages, is little more than a narrative of conflicts between a stubborn nationality and an alien population. nothing like this has been seen in modern times; on the one hand, because modern european communities have seldom or never received any accession of foreign immigrants which was large enough to make itself felt by the bulk of the native citizens, and on the other, because modern states, being held together by allegiance to a king or political superior, absorb considerable bodies of immigrant settlers with a quickness unknown to the ancient world, where the original citizens of a commonwealth always believed themselves to be united by kinship in blood, and resented a claim to equality of privilege as a usurpation of their birthright. in the early roman republic the principle of the absolute exclusion of foreigners pervaded the civil law no less than the constitution. the alien or denizen could have no share in any institution supposed to be coeval with the state. he could not have the benefit of quiritarian law. he could not be a party to the _nexum_ which was at once the conveyance and the contract of the primitive romans. he could not sue by the sacramental action, a mode of litigation of which the origin mounts up to the very infancy of civilisation. still, neither the interest nor the security of rome permitted him to be quite outlawed. all ancient communities ran the risk of being overthrown by a very slight disturbance of equilibrium, and the mere instinct of self-preservation would force the romans to devise some method of adjusting the rights and duties of foreigners, who might otherwise--and this was a danger of real importance in the ancient world--have decided their controversies by armed strife. moreover, at no period of roman history was foreign trade entirely neglected. it was therefore probably half as a measure of police and half in furtherance of commerce that jurisdiction was first assumed in disputes to which the parties were either foreigners or a native and a foreigner. the assumption of such a jurisdiction brought with it the immediate necessity of discovering some principles on which the questions to be adjudicated upon could be settled, and the principles applied to this object by the roman lawyers were eminently characteristic of the time. they refused, as i have said before, to decide the new cases by pure roman civil law. they refused, no doubt because it seemed to involve some kind of degradation, to apply the law of the particular state from which the foreign litigant came. the expedient to which they resorted was that of selecting the rules of law common to rome and to the different italian communities in which the immigrants were born. in other words, they set themselves to form a system answering to the primitive and literal meaning of jus gentium, that is, law common to all nations. jus gentium was, in fact, the sum of the common ingredients in the customs of the old italian tribes, for they were _all the nations_ whom the romans had the means of observing, and who sent successive swarms of immigrants to roman soil. whenever a particular usage was seen to be practised by a large number of separate races in common it was set down as part of the law common to all nations, or jus gentium. thus, although the conveyance of property was certainly accompanied by very different forms in the different commonwealths surrounding rome, the actual transfer, tradition, or delivery of the article intended to be conveyed was a part of the ceremonial in all of them. it was, for instance, a part, though a subordinate part, in the mancipation or conveyance peculiar to rome. tradition, therefore, being in all probability the only common ingredient in the modes of conveyance which the jurisconsults had the means of observing, was set down as an institution juris gentium, or rule of the law common to all nations. a vast number of other observances were scrutinised with the same result. some common characteristic was discovered in all of them, which had a common object, and this characteristic was classed in the jus gentium. the jus gentium was accordingly a collection of rules and principles, determined by observation to be common to the institutions which prevailed among the various italian tribes. the circumstances of the origin of the jus gentium are probably a sufficient safeguard against the mistake of supposing that the roman lawyers had any special respect for it. it was the fruit in part of their disdain for all foreign law, and in part of their disinclination to give the foreigner the advantage of their own indigenous jus civile. it is true that we, at the present day, should probably take a very different view of the jus gentium, if we were performing the operation which was effected by the roman jurisconsults. we should attach some vague superiority or precedence to the element which we had thus discerned underlying and pervading so great a variety of usage. we should have a sort of respect for rules and principles so universal. perhaps we should speak of the common ingredient as being of the essence of the transaction into which it entered, and should stigmatise the remaining apparatus of ceremony, which varied in different communities, as adventitious and accidental. or it may be, we should infer that the races which we were comparing had once obeyed a great system of common institutions of which the jus gentium was the reproduction, and that the complicated usages of separate commonwealths were only corruptions and depravations of the simpler ordinances which had once regulated their primitive state. but the results to which modern ideas conduct the observer are, as nearly as possible, the reverse of those which were instinctively brought home to the primitive roman. what we respect or admire, he disliked or regarded with jealous dread. the parts of jurisprudence which he looked upon with affection were exactly those which a modern theorist leaves out of consideration as accidental and transitory; the solemn gestures of the mancipation; the nicely adjusted questions and answers of the verbal contract; the endless formalities of pleading and procedure. the jus gentium was merely a system forced on his attention by a political necessity. he loved it as little as he loved the foreigners from whose institutions it was derived and for whose benefit it was intended. a complete revolution in his ideas was required before it could challenge his respect, but so complete was it when it did occur, that the true reason why our modern estimate of the jus gentium differs from that which has just been described, is that both modern jurisprudence and modern philosophy have inherited the matured views of the later jurisconsults on this subject. there did come a time, when from an ignoble appendage of the jus civile, the jus gentium came to be considered a great though as yet imperfectly developed model to which all law ought as far as possible to conform. this crisis arrived when the greek theory of a law of nature was applied to the practical roman administration of the law common to all nations. the jus naturale, or law of nature, is simply the jus gentium or law of nations seen in the light of a peculiar theory. an unfortunate attempt to discriminate them was made by the jurisconsult ulpian, with the propensity to distinguish characteristic of a lawyer, but the language of gaius, a much higher authority, and the passage quoted before from the institutes leave no room for doubt, that the expressions were practically convertible. the difference between them was entirely historical, and no distinction in essence could ever be established between them. it is almost unnecessary to add that the confusion between jus gentium, or law common to all nations, and _international law_ is entirely modern. the classical expression for international law is jus feciale or the law of negotiation and diplomacy. it is, however, unquestionable that indistinct impressions as to the meaning of jus gentium had considerable share in producing the modern theory that the relations of independent states are governed by the law of nature. it becomes necessary to investigate the greek conceptions of nature and her law. the word [greek: physis], which was rendered in the latin _natura_ and our _nature_, denoted beyond all doubt originally the material universe, but it was the material universe contemplated under an aspect which--such is our intellectual distance from those times--it is not very easy to delineate in modern language. nature signified the physical world regarded as the result of some primordial element or law. the oldest greek philosophers had been accustomed to explain the fabric of creation as the manifestation of some single principle which they variously asserted to be movement, force, fire, moisture, or generation. in its simplest and most ancient sense, nature is precisely the physical universe looked upon in this way as the manifestation of a principle. afterwards, the later greek sects, returning to a path from which the greatest intellects of greece had meanwhile strayed, added the _moral_ to the _physical_ world in the conception of nature. they extended the term till it embraced not merely the visible creation, but the thoughts, observances, and aspirations of mankind. still, as before, it was not solely the moral phenomena of human society which they understood by _nature_, but these phenomena considered as resolvable into some general and simple laws. now, just as the oldest greek theorists supposed that the sports of chance had changed the material universe from its simple primitive form into its present heterogeneous condition, so their intellectual descendants imagined that but for untoward accident the human race would have conformed itself to simpler rules of conduct and a less tempestuous life. to live according to _nature_ came to be considered as the end for which man was created, and which the best men were bound to compass. to live according to _nature_ was to rise above the disorderly habits and gross indulgences of the vulgar to higher laws of action which nothing but self-denial and self-command would enable the aspirant to observe. it is notorious that this proposition--live according to nature--was the sum of the tenets of the famous stoic philosophy. now on the subjugation of greece that philosophy made instantaneous progress in roman society. it possessed natural fascinations for the powerful class who, in theory at least, adhered to the simple habits of the ancient italian race, and disdained to surrender themselves to the innovations of foreign fashions. such persons began immediately to affect the stoic precepts of life according to nature--an affectation all the more grateful, and, i may add, all the more noble, from its contrast with the unbounded profligacy which was being diffused through the imperial city by the pillage of the world and by the example of its most luxurious races. in the front of the disciples of the new greek school, we might be sure, even if we did not know it historically, that the roman lawyers figured. we have abundant proof that, there being substantially but two professions in the roman republic, the military men were generally identified with the party of movement, but the lawyers were universally at the head of the party of resistance. the alliance of the lawyers with the stoic philosophers lasted through many centuries. some of the earliest names in the series of renowned jurisconsults are associated with stoicism, and ultimately we have the golden age of roman jurisprudence fixed by general consent at the era of the antonine cæsars, the most famous disciples to whom that philosophy has given a rule of life. the long diffusion of these doctrines among the members of a particular profession was sure to affect the art which they practised and influenced. several positions which we find in the remains of the roman jurisconsults are scarcely intelligible, unless we use the stoic tenets as our key; but at the same time it is a serious, though a very common, error to measure the influence of stoicism on roman law by counting up the number of legal rules which can be confidently affiliated on stoical dogmas. it has often been observed that the strength of stoicism resided not in its canons of conduct, which were often repulsive or ridiculous, but in the great though vague principle which it inculcated of resistance to passion. just in the same way the influence on jurisprudence of the greek theories, which had their most distinct expression in stoicism, consisted not in the number of specific positions which they contributed to roman law, but in the single fundamental assumption which they lent to it. after nature had become a household word in the mouths of the romans, the belief gradually prevailed among the roman lawyers that the old jus gentium was in fact the lost code of nature, and that the prætor in framing an edictal jurisprudence on the principles of the jus gentium was gradually restoring a type from which law had only departed to deteriorate. the inference from this belief was immediate, that it was the prætor's duty to supersede the civil law as much as possible by the edict, to revive as far as might be the institutions by which nature had governed man in the primitive state. of course, there were many impediments to the amelioration of law by this agency. there may have been prejudices to overcome even in the legal profession itself, and roman habits were far too tenacious to give way at once to mere philosophical theory. the indirect methods by which the edict combated certain technical anomalies, show the caution which its authors were compelled to observe, and down to the very days of justinian there was some part of the old law which had obstinately resisted its influence. but, on the whole, the progress of the romans in legal improvement was astonishingly rapid as soon as stimulus was applied to it by the theory of natural law. the ideas of simplification and generalisation had always been associated with the conception of nature; simplicity, symmetry, and intelligibility came therefore to be regarded as the characteristics of a good legal system, and the taste for involved language, multiplied ceremonials, and useless difficulties disappeared altogether. the strong will, and unusual opportunities of justinian were needed to bring the roman law to its existing shape, but the ground plan of the system had been sketched long before the imperial reforms were effected. what was the exact point of contact between the old jus gentium and the law of nature? i think that they touch and blend through æquitas, or equity in its original sense; and here we seem to come to the first appearance in jurisprudence of this famous term, equity. in examining an expression which has so remote an origin and so long a history as this, it is always safest to penetrate, if possible, to the simple metaphor or figure which at first shadowed forth the conception. it has generally been supposed that æquitas is the equivalent of the greek [greek: isotês], _i.e._ the principle of equal or proportionate distribution. the equal division of numbers or physical magnitudes is doubtless closely entwined with our perceptions of justice; there are few associations which keep their ground in the mind so stubbornly or are dismissed from it with such difficulty by the deepest thinkers. yet in tracing the history of this association, it certainly does not seem to have suggested itself to very early thought, but is rather the offspring of a comparatively late philosophy. it is remarkable too that the "equality" of laws on which the greek democracies prided themselves--that equality which, in the beautiful drinking song of callistratus, harmodius and aristogiton are said to have given to athens--had little in common with the "equity" of the romans. the first was an equal administration of civil laws among the citizens, however limited the class of citizens might be; the last implied the applicability of a law, which was not civil law, to a class which did not necessarily consist of citizens. the first excluded a despot; the last included foreigners, and for some purposes slaves. on the whole, i should be disposed to look in another direction for the germ of the roman "equity." the latin word "æquus" carries with it more distinctly than the greek "[greek: isos]" the sense of _levelling_. now its levelling tendency was exactly the characteristic of the jus gentium, which would be most striking to a primitive roman. the pure quiritarian law recognised a multitude of arbitrary distinctions between classes of men and kinds of property; the jus gentium, generalised from a comparison of various customs, neglected the quiritarian divisions. the old roman law established, for example, a fundamental difference between "agnatic" and "cognatic" relationship, that is, between the family considered as based upon common subjection to patriarchal authority and the family considered (in conformity with modern ideas) as united through the mere fact of a common descent. this distinction disappears in the "law common to all nations," as also does the difference between the archaic forms of property, things "mancipi" and things "nec mancipi." the neglect of demarcations and boundaries seems to me, therefore, the feature of the jus gentium which was depicted in æquitas. i imagine that the word was at first a mere description of that constant _levelling_ or removal of irregularities which went on wherever the prætorian system was applied to the cases of foreign litigants. probably no colour of ethical meaning belonged at first to the expression; nor is there any reason to believe that the process which it indicated was otherwise than extremely distasteful to the primitive roman mind. on the other hand, the feature of the jus gentium which was presented to the apprehension of a roman by the word equity, was exactly the first and most vividly realised characteristic of the hypothetical state of nature. nature implied symmetrical order, first in the physical world, and next in the moral, and the earliest notion of order doubtless involved straight lines, even surfaces, and measured distances. the same sort of picture or figure would be unconsciously before the mind's eye, whether it strove to form the outlines of the supposed natural state, or whether it took in at a glance the actual administration of the "law common to all nations"; and all we know of primitive thought would lead us to conclude that this ideal similarity would do much to encourage the belief in an identity of the two conceptions. but then, while the jus gentium had little or no antecedent credit at rome, the theory of a law of nature came in surrounded with all the prestige of philosophical authority, and invested with the charms of association with an elder and more blissful condition of the race. it is easy to understand how the difference in the point of view would affect the dignity of the term which at once described the operation of the old principles and the results of the new theory. even to modern ears it is not at all the same thing to describe a process as one of "levelling" and to call it the "correction of anomalies," though the metaphor is precisely the same. nor do i doubt that, when once æquitas was understood to convey an allusion to the greek theory, associations which grew out of the greek notion of [greek: isotês] began to cluster round it. the language of cicero renders it more than likely that this was so, and it was the first stage of a transmutation of the conception of equity, which almost every ethical system which has appeared since those days has more or less helped to carry on. something must be said of the formal instrumentality by which the principles and distinctions associated, first with the law common to all nations, and afterwards with the law of nature, were gradually incorporated with the roman law. at the crisis of primitive roman history which is marked by the expulsion of the tarquins, a change occurred which has its parallel in the early annals of many ancient states, but which had little in common with those passages of political affairs which we now term revolutions. it may best be described by saying that the monarchy was put into commission. the powers heretofore accumulated in the hands of a single person were parcelled out among a number of elective functionaries, the very name of the kingly office being retained and imposed on a personage known subsequently as the rex sacrorum or rex sacrificulus. as part of the change, the settled duties of the supreme judicial office devolved on the prætor, at the time the first functionary in the commonwealth, and together with these duties was transferred the undefined supremacy over law and legislation which always attached to ancient sovereigns and which is not obscurely related to the patriarchal and heroic authority they had once enjoyed. the circumstances of rome gave great importance to the more indefinite portion of the functions thus as transferred, as with the establishment of the republic began that series of recurrent trials which overtook the state, in the difficulty of dealing with a multitude of persons who, not coming within the technical description of indigenous romans, were nevertheless permanently located within roman jurisdiction. controversies between such persons, or between such persons and native-born citizens, would have remained without the pale of the remedies provided by roman law, if the prætor had not undertaken to decide them, and he must soon have addressed himself to the more critical disputes which in the extension of commerce arose between roman subjects and avowed foreigners. the great increase of such cases in the roman courts about the period of the first punic war is marked by the appointment of a special prætor, known subsequently as the prætor peregrinus, who gave them his undivided attention. meantime, one precaution of the roman people against the revival of oppression, had consisted in obliging every magistrate whose duties had any tendency to expand their sphere, to publish, on commencing his year of office, an edict or proclamation, in which he declared the manner in which he intended to administer his department. the prætor fell under the rule with other magistrates; but as it was necessarily impossible to construct each year a separate system of principles, he seems to have regularly republished his predecessor's edict with such additions and changes as the exigency of the moment or his own views of the law compelled him to introduce. the prætor's proclamation, thus lengthened by a new portion every year, obtained the name of the edictum perpetuum, that is, the _continuous_ or _unbroken_ edict. the immense length to which it extended, together perhaps with some distaste for its necessarily disorderly texture, caused the practice of increasing it to be stopped in the year of salvius julianus, who occupied the magistracy in the reign of the emperor hadrian. the edict of that prætor embraced therefore the whole body of equity jurisprudence, which it probably disposed in new and symmetrical order, and the perpetual edict is therefore often cited in roman law merely as the edict of julianus. perhaps the first inquiry which occurs to an englishman who considers the peculiar mechanism of the edict is, what were the limitations by which these extensive powers of the prætor were restrained? how was authority so little definite reconciled with a settled condition of society and of law? the answer can only be supplied by careful observation of the conditions under which our own english law is administered. the prætor, it should be recollected, was a jurisconsult himself, or a person entirely in the hands of advisers who were jurisconsults, and it is probable that every roman lawyer waited impatiently for the time when he should fill or control the great judicial magistracy. in the interval, his tastes, feelings, prejudices, and degree of enlightenment were inevitably those of his own order, and the qualifications which he ultimately brought to office were those which he had acquired in the practice and study of his profession. an english chancellor goes through precisely the same training, and carries to the woolsack the same qualifications. it is certain when he assumes office that he will have, to some extent, modified the law before he leaves it; but until he has quitted his seat, and the series of his decisions in the law reports has been completed, we cannot discover how far he has elucidated or added to the principles which his predecessors bequeathed to him. the influence of the prætor on roman jurisprudence differed only in respect of the period at which its amount was ascertained. as was before stated, he was in office but for a year, and his decisions rendered during his year, though of course irreversible as regarded the litigants, were of no ulterior value. the most natural moment for declaring the changes he proposed to effect occurred therefore at his entrance on the prætorship, and hence, when commencing his duties, he did openly and avowedly that which in the end his english representative does insensibly and sometimes unconsciously. the checks on this apparent liberty are precisely those imposed on an english judge. theoretically there seems to be hardly any limit to the powers of either of them, but practically the roman prætor, no less than the english chancellor, was kept within the narrowest bounds by the prepossessions imbibed from early training and by the strong restraints of professional opinion, restraints of which the stringency can only be appreciated by those who have personally experienced them. it may be added that the lines within which movement is permitted, and beyond which there is to be no travelling, were chalked with as much distinctness in the one case as in the other. in england the judge follows the analogies of reported decisions on insulated groups of facts. at rome, as the intervention of the prætor was at first dictated by simple concern for the safety of the state, it is likely that in the earliest times it was proportioned to the difficulty which it attempted to get rid of. afterwards, when the taste for principle had been diffused by the responses, he no doubt used the edict as the means of giving a wider application to those fundamental principles, which he and the other practising jurisconsults, his contemporaries, believed themselves to have detected underlying the law. latterly he acted wholly under the influence of greek philosophical theories, which at once tempted him to advance and confined him to a particular course of progress. the nature of the measures attributed to salvius julianus has been much disputed. whatever they were, their effects on the edict are sufficiently plain. it ceased to be extended by annual additions, and henceforward the equity jurisprudence of rome was developed by the labours of a succession of great jurisconsults who fill with their writings the interval between the reign of hadrian and the reign of alexander severus. a fragment of the wonderful system which they built up survives in the pandects of justinian, and supplies evidence that their works took the form of treatises on all parts of roman law, but chiefly that of commentaries on the edict. indeed, whatever be the immediate subject of a jurisconsult of this epoch, he may always be called an expositor of equity. the principles of the edict had, before the epoch of its cessation, made their way into every part of roman jurisprudence. the equity of rome, it should be understood, even when most distinct from the civil law, was always administered by the same tribunals. the prætor was the chief equity judge as well as the great common law magistrate, and as soon as the edict had evolved an equitable rule the prætor's court began to apply it in place of or by the side of the old rule of the civil law, which was thus directly or indirectly repealed without any express enactment of the legislature. the result, of course, fell considerably short of a complete fusion of law and equity, which was not carried out till the reforms of justinian. the technical severance of the two elements of jurisprudence entailed some confusion and some inconvenience, and there were certain of the stubborner doctrines of the civil law with which neither the authors nor the expositors of the edict had ventured to interfere. but at the same time there was no corner of the field of jurisprudence which was not more or less swept over by the influence of equity. it supplied the jurist with all his materials for generalisation, with all his methods of interpretation, with his elucidations of first principles, and with that great mass of limiting rules which are rarely interfered with by the legislator, but which seriously control the application of every legislative act. the period of jurists ends with alexander severus. from hadrian to that emperor the improvement of law was carried on, as it is at the present moment in most continental countries, partly by approved commentaries and partly by direct legislation. but in the reign of alexander severus the power of growth in roman equity seems to be exhausted, and the succession of jurisconsults comes to a close. the remaining history of the roman law is the history of the imperial constitutions, and, at the last, of attempts to codify what had now become the unwieldy body of roman jurisprudence. we have the latest and most celebrated experiment of this kind in the _corpus juris_ of justinian. it would be wearisome to enter on a detailed comparison or contrast of english and roman equity, but it may be worth while to mention two features which they have in common. the first may be stated as follows. each of them tended, and all such systems tend, to exactly the same state in which the old common law was when equity first interfered with it. a time always comes at which the moral principles originally adopted have been carried out to all their legitimate consequences, and then the system founded on them becomes as rigid, as unexpansive, and as liable to fall behind moral progress as the sternest code of rules avowedly legal. such an epoch was reached at rome in the reign of alexander severus; after which, though the whole roman world was undergoing a moral revolution, the equity of rome ceased to expand. the same point of legal history was attained in england under the chancellorship of lord eldon, the first of our equity judges who, instead of enlarging the jurisprudence of his court by indirect legislation, devoted himself through life to explaining and harmonising it. if the philosophy of legal history were better understood in england, lord eldon's services would be less exaggerated on the one hand and better appreciated on the other than they appear to be among contemporary lawyers. other misapprehensions too, which bear some practical fruit, would perhaps be avoided. it is easily seen by english lawyers that english equity is a system founded on moral rules; but it is forgotten that these rules are the morality of past centuries--not of the present--that they have received nearly as much application as they are capable of, and that though of course they do not differ largely from the ethical creed of our own day, they are not necessarily on a level with it. the imperfect theories of the subject which are commonly adopted have generated errors of opposite sorts. many writers of treatises on equity, struck with the completeness of the system in its present state, commit themselves expressly or implicitly to the paradoxical assertion that the founders of the chancery jurisprudence contemplated its present fixity of form when they were settling its first bases. others, again, complain--and this is a grievance frequently observed upon in forensic arguments--that the moral rules enforced by the court of chancery fall short of the ethical standard of the present day. they would have each lord chancellor perform precisely the same office for the jurisprudence which he finds ready to his hand, which was performed for the old common law by the fathers of english equity. but this is to invert the order of the agencies by which the improvement of the law is carried on. equity has its place and its time; but i have pointed out that another instrumentality is ready to succeed it when its energies are spent. another remarkable characteristic of both english and roman equity is the falsehood of the assumptions upon which the claim of the equitable to superiority over the legal rule is originally defended. nothing is more distasteful to men, either as individuals or as masses, than the admission of their moral progress as a substantive reality. this unwillingness shows itself, as regards individuals, in the exaggerated respect which is ordinarily paid to the doubtful virtue of consistency. the movement of the collective opinion of a whole society is too palpable to be ignored, and is generally too visible for the better to be decried; but there is the greatest disinclination to accept it as a primary phenomenon, and it is commonly explained as the recovery of a lost perfection--the gradual return to a state from which the race has lapsed. this tendency to look backward instead of forward for the goal of moral progress produced anciently, as we have seen, on roman jurisprudence effects the most serious and permanent. the roman jurisconsults, in order to account for the improvement of their jurisprudence by the prætor, borrowed from greece the doctrine of a natural state of man--a natural society--anterior to the organisation of commonwealths governed by positive laws. in england, on the other hand, a range of ideas especially congenial to englishmen of that day, explained the claim of equity to override the common law by supposing a general right to superintend the administration of justice which was assumed to be vested in the king as a natural result of his paternal authority. the same view appears in a different and a quainter form in the old doctrine that equity flowed from the king's conscience--the improvement which had in fact taken place in the moral standard of the community being thus referred to an inherent elevation in the moral sense of the sovereign. the growth of the english constitution rendered such a theory unpalatable after a time; but, as the jurisdiction of the chancery was then firmly established, it was not worth while to devise any formal substitute for it. the theories found in modern manuals of equity are very various, but all are alike in their untenability. most of them are modifications of the roman doctrine of a natural law, which is indeed adopted in tenour by those writers who begin a discussion of the jurisdiction of the court of chancery by laying down a distinction between natural justice and civil. chapter iv the modern history of the law of nature it will be inferred from what has been said that the theory which transformed the roman jurisprudence had no claim to philosophical precision. it involved, in fact, one of those "mixed modes of thought" which are now acknowledged to have characterised all but the highest minds during the infancy of speculation, and which are far from undiscoverable even in the mental efforts of our own day. the law of nature confused the past and the present. logically, it implied a state of nature which had once been regulated by natural law; yet the jurisconsults do not speak clearly or confidently of the existence of such a state, which indeed is little noticed by the ancients except where it finds a poetical expression in the fancy of a golden age. natural law, for all practical purposes, was something belonging to the present, something entwined with existing institutions, something which could be distinguished from them by a competent observer. the test which separated the ordinances of nature from the gross ingredients with which they were mingled was a sense of simplicity and harmony; yet it was not on account of their simplicity and harmony that these finer elements were primarily respected, but on the score of their descent from the aboriginal reign of nature. this confusion has not been successfully explained away by the modern disciples of the jurisconsults, and in truth modern speculations on the law of nature betray much more indistinctness of perception and are vitiated by much more hopeless ambiguity of language than the roman lawyers can be justly charged with. there are some writers on the subject who attempt to evade the fundamental difficulty by contending that the code of nature exists in the future and is the goal to which all civil laws are moving, but this is to reverse the assumptions on which the old theory rested, or rather perhaps to mix together two inconsistent theories. the tendency to look not to the past but to the future for types of perfection was brought into the world by christianity. ancient literature gives few or no hints of a belief that the progress of society is necessarily from worse to better. but the importance of this theory to mankind has been very much greater than its philosophical deficiencies would lead us to expect. indeed, it is not easy to say what turn the history of thought, and therefore, of the human race, would have taken, if the belief in a law natural had not become universal in the ancient world. there are two special dangers to which law, and society which is held together by law, appear to be liable in their infancy. one of them is that law may be too rapidly developed. this occurred with the codes of the more progressive greek communities, which disembarrassed themselves with astonishing facility from cumbrous forms of procedure and needless terms of art, and soon ceased to attach any superstitious value to rigid rules and prescriptions. it was not for the ultimate advantage of mankind that they did so, though the immediate benefit conferred on their citizens may have been considerable. one of the rarest qualities of national character is the capacity for applying and working out the law, as such, at the cost of constant miscarriages of abstract justice, without at the same time losing the hope or the wish that law may be conformed to a higher ideal. the greek intellect, with all its nobility and elasticity, was quite unable to confine itself within the strait waistcoat of a legal formula; and, if we may judge them by the popular courts of athens, of whose working we possess accurate knowledge, the greek tribunals exhibited the strongest tendency to confound law and fact. the remains of the orators and the forensic commonplaces preserved by aristotle in his treatise on rhetoric, show that questions of pure law were constantly argued on every consideration which could possibly influence the mind of the judges. no durable system of jurisprudence could be produced in this way. a community which never hesitated to relax rules of written law whenever they stood in the way of an ideally perfect decision on the facts of particular cases, would only, if it bequeathed any body of judicial principles to posterity, bequeath one consisting of the ideas of right and wrong which happened to be prevalent at the time. such a jurisprudence would contain no framework to which the more advanced conceptions of subsequent ages could be fitted. it would amount at best to a philosophy marked with the imperfections of the civilisation under which it grew up. few national societies have had their jurisprudence menaced by this peculiar danger of precocious maturity and untimely disintegration. it is certainly doubtful whether the romans were ever seriously threatened by it, but at any rate they had adequate protection in their theory of natural law. for the natural law of the jurisconsults was distinctly conceived by them as a system which ought gradually to absorb civil laws, without superseding them so long as they remained unrepealed. there was no such impression of its sanctity abroad, that an appeal to it would be likely to overpower the mind of a judge who was charged with the superintendence of a particular litigation. the value and serviceableness of the conception arose from its keeping before the mental vision a type of perfect law, and from its inspiring the hope of an indefinite approximation to it, at the same time that it never tempted the practitioner or the citizen to deny the obligation of existing laws which had not yet been adjusted to the theory. it is important too to observe that this model system, unlike many of those which have mocked men's hopes in later days, was not entirely the product of imagination. it was never thought of as founded on quite untested principles. the notion was that it underlay existing law and must be looked for through it. its functions were in short remedial, not revolutionary or anarchical. and this, unfortunately, is the exact point at which the modern view of a law of nature has often ceased to resemble the ancient. the other liability to which the infancy of society is exposed has prevented or arrested the progress of far the greater part of mankind. the rigidity of primitive law, arising chiefly from its early association and identification with religion, has chained down the mass of the human race to those views of life and conduct which they entertained at the time when their usages were first consolidated into a systematic form. there were one or two races exempted by a marvellous fate from this calamity, and grafts from these stocks have fertilised a few modern societies, but it is still true that, over the larger part of the world, the perfection of law has always been considered as consisting in adherence to the ground plan supposed to have been marked out by the original legislator. if intellect has in such cases been exercised on jurisprudence, it has uniformly prided itself on the subtle perversity of the conclusions it could build on ancient texts, without discoverable departure from their literal tenour. i know no reason why the law of the romans should be superior to the laws of the hindoos, unless the theory of natural law had given it a type of excellence different from the usual one. in this one exceptional instance, simplicity and symmetry were kept before the eyes of a society whose influence on mankind was destined to be prodigious from other causes, as the characteristics of an ideal and absolutely perfect law. it is impossible to overrate the importance to a nation or profession of having a distinct object to aim at in the pursuit of improvement. the secret of bentham's immense influence in england during the past thirty years is his success in placing such an object before the country. he gave us a clear rule of reform. english lawyers of the last century were probably too acute to be blinded by the paradoxical commonplace that english law was the perfection of human reason, but they acted as if they believed it for want of any other principle to proceed upon. bentham made the good of the community take precedence of every other object, and thus gave escape to a current which had long been trying to find its way outwards. it is not an altogether fanciful comparison if we call the assumptions we have been describing the ancient counterpart of benthamism. the roman theory guided men's efforts in the same direction as the theory put into shape by the englishman; its practical results were not widely different from those which would have been attained by a sect of law-reformers who maintained a steady pursuit of the general good of the community. it would be a mistake, however, to suppose it a conscious anticipation of bentham's principles. the happiness of mankind is, no doubt, sometimes assigned, both in the popular and in the legal literature of the romans, as the proper object of remedial legislation, but it is very remarkable how few and faint are the testimonies to this principle compared with the tributes which are constantly offered to the overshadowing claims of the law of nature. it was not to anything resembling philanthropy, but to their sense of simplicity and harmony--of what they significantly termed "elegance"--that the roman jurisconsults freely surrendered themselves. the coincidence of their labours with those which a more precise philosophy would have counselled has been part of the good fortune of mankind. turning to the modern history of the law of nature, we find it easier to convince ourselves of the vastness of its influence than to pronounce confidently whether that influence has been exerted for good or for evil. the doctrines and institutions which may be attributed to it are the material of some of the most violent controversies debated in our time, as will be seen when it is stated that the theory of natural law is the source of almost all the special ideas as to law, politics, and society which france during the last hundred years has been the instrument of diffusing over the western world. the part played by jurists in french history, and the sphere of jural conceptions in french thought, have always been remarkably large. it was not indeed in france, but in italy, that the juridical science of modern europe took its rise, but of the schools founded by emissaries of the italian universities in all parts of the continent, and attempted (though vainly) to be set up in our island, that established in france produced the greatest effect on the fortunes of the country. the lawyers of france immediately formed a strict alliance with the kings of the house of capet, and it was as much through their assertions of royal prerogative, and through their interpretations of the rules of feudal succession, as by the power of the sword, that the french monarchy at last grew together out of the agglomeration of provinces and dependencies. the enormous advantage which their understanding with the lawyers conferred on the french kings in the prosecution of their struggle with the great feudatories, the aristocracy, and the church, can only be appreciated if we take into account the ideas which prevailed in europe far down into the middle ages. there was, in the first place, a great enthusiasm for generalisation and a curious admiration for all general propositions, and consequently, in the field of law, an involuntary reverence for every general formula which seemed to embrace and sum up a number of the insulated rules which were practised as usages in various localities. such general formulas it was, of course, not difficult for practitioners familiar with the corpus juris or the glosses to supply in almost any quantity. there was, however, another cause which added yet more considerably to the lawyers' power. at the period of which we are speaking, there was universal vagueness of ideas as to the degree and nature of the authority residing in written texts of law. for the most part, the peremptory preface, _ita scriptum est_, seems to have been sufficient to silence all objections. where a mind of our own day would jealously scrutinise the formula which had been quoted, would inquire its source, and would (if necessary) deny that the body of law to which it belonged had any authority to supersede local customs, the elder jurist would not probably have ventured to do more than question the applicability of the rule, or at best cite some counter proposition from the pandects or the canon law. it is extremely necessary to bear in mind the uncertainty of men's notions on this most important side of juridical controversies, not only because it helps to explain the weight which the lawyers threw into the monarchical scale, but on account of the light which it sheds on several curious historical problems. the motives of the author of the forged decretals and his extraordinary success are rendered more intelligible by it. and, to take a phenomenon of smaller interest, it assists us, though only partially, to understand the plagiarisms of bracton. that an english writer of the time of henry iii. should have been able to put off on his countrymen as a compendium of pure english law a treatise of which the entire form and a third of the contents were directly borrowed from the corpus juris, and that he should have ventured on this experiment in a country where the systematic study of the roman law was formally proscribed, will always be among the most hopeless enigmas in the history of jurisprudence; but still it is something to lessen our surprise when we comprehend the state of opinion at the period as to the obligatory force of written texts, apart from all consideration of the source whence they were derived. when the kings of france had brought their long struggle for supremacy to a successful close, an epoch which may be placed roughly at the accession of the branch of valois-angoulême to the throne, the situation of the french jurists was peculiar and continued to be so down to the outbreak of the revolution. on the one hand, they formed the best instructed and nearly the most powerful class in the nation. they had made good their footing as a privileged order by the side of the feudal aristocracy, and they had assured their influence by an organisation which distributed their profession over france in great chartered corporations possessing large defined powers and still larger indefinite claims. in all the qualities of the advocate, the judge, and the legislator, they far excelled their compeers throughout europe. their juridical tact, their ease of expression, their fine sense of analogy and harmony, and (if they may be judged by the highest names among them) their passionate devotion to their conceptions of justice, were as remarkable as the singular variety of talent which they included, a variety covering the whole ground between the opposite poles of cujas and montesquieu, of d'aguesseau and dumoulin. but, on the other hand, the system of laws which they had to administer stood in striking contrast with the habits of mind which they had cultivated. the france which had been in great part constituted by their efforts was smitten with the curse of an anomalous and dissonant jurisprudence beyond every other country in europe. one great division ran through the country and separated it into _pays du droit ecrit_ and _pays du droit coutumier_, the first acknowledging the written roman law as the basis of their jurisprudence, the last admitting it only so far as it supplied general forms of expression, and courses of juridical reasoning which were reconcileable with the local usages. the sections thus formed were again variously subdivided. in the _pays du droit coutumier_ province differed from province, county from county, municipality from municipality, in the nature of its customs. in the _pays du droit ecrit_ the stratum of feudal rules which overlay the roman law was of the most miscellaneous composition. no such confusion as this ever existed in england. in germany it did exist, but was too much in harmony with the deep political and religious divisions of the country to be lamented or even felt. it was the special peculiarity of france that an extraordinary diversity of laws continued without sensible alteration while the central authority of the monarchy was constantly strengthening itself, while rapid approaches were being made to complete administrative unity, and while a fervid national spirit had been developed among the people. the contrast was one which fructified in many serious results, and among them we must rank the effect which it produced on the minds of the french lawyers. their speculative opinions and their intellectual bias were in the strongest opposition to their interests and professional habits. with the keenest sense and the fullest recognition of those perfections of jurisprudence which consist in simplicity and uniformity, they believed, or seemed to believe, that the vices which actually infested french law were ineradicable; and in practice they often resisted the reformation of abuses with an obstinacy which was not shown by many among their less enlightened countrymen. but there was a way to reconcile these contradictions. they became passionate enthusiasts for natural law. the law of nature overleapt all provincial and municipal boundaries; it disregarded all distinctions between noble and burgess, between burgess and peasant; it gave the most exalted place to lucidity, simplicity and system; but it committed its devotees to no specific improvement, and did not directly threaten any venerable or lucrative technicality. natural law may be said to have become the common law of france, or, at all events, the admission of its dignity and claims was the one tenet which all french practitioners alike subscribed to. the language of the præ-revolutionary jurists in its eulogy is singularly unqualified, and it is remarkable that the writers on the customs, who often made it their duty to speak disparagingly of the pure roman law, speak even more fervidly of nature and her rules than the civilians who professed an exclusive respect for the digest and the code. dumoulin, the highest of all authorities on old french customary law, has some extravagant passages on the law of nature; and his panegyrics have a peculiar rhetorical turn which indicated a considerable departure from the caution of the roman jurisconsults. the hypothesis of a natural law had become not so much a theory guiding practice as an article of speculative faith, and accordingly we shall find that, in the transformation which it more recently underwent, its weakest parts rose to the level of its strongest in the esteem of its supporters. the eighteenth century was half over when the most critical period in the history of natural law was reached. had the discussion of the theory and of its consequences continued to be exclusively the employment of the legal profession, there would possibly have been an abatement of the respect which it commanded; for by this time the _esprit des lois_ had appeared. bearing in some exaggerations the marks of the excessive violence with which its author's mind had recoiled from assumptions usually suffered to pass without scrutiny, yet showing in some ambiguities the traces of a desire to compromise with existing prejudice, the book of montesquieu, with all its defects, still proceeded on that historical method before which the law of nature has never maintained its footing for an instant. its influence on thought ought to have been as great as its general popularity; but, in fact, it was never allowed time to put it forth, for the counter-hypothesis which it seemed destined to destroy passed suddenly from the forum to the street, and became the key-note of controversies far more exciting than are ever agitated in the courts or the schools. the person who launched it on its new career was that remarkable man who, without learning, with few virtues, and with no strength of character, has nevertheless stamped himself ineffaceably on history by the force of a vivid imagination, and by the help of a genuine and burning love for his fellow-men, for which much will always have to be forgiven him. we have never seen in our own generation--indeed the world has not seen more than once or twice in all the course of history--a literature which has exercised such prodigious influence over the minds of men, over every cast and shade of intellect, as that which emanated from rousseau between 1749 and 1762. it was the first attempt to re-erect the edifice of human belief after the purely iconoclastic efforts commenced by bayle, and in part by our own locke, and consummated by voltaire; and besides the superiority which every constructive effort will always enjoy over one that is merely destructive, it possessed the immense advantage of appearing amid an all but universal scepticism as to the soundness of all foregone knowledge in matters speculative. now, in all the speculations of rousseau, the central figure, whether arrayed in an english dress as the signatory of a social compact, or simply stripped naked of all historical qualities, is uniformly man, in a supposed state of nature. every law or institution which would misbeseem this imaginary being under these ideal circumstances is to be condemned as having lapsed from an original perfection; every transformation of society which would give it a closer resemblance to the world over which the creature of nature reigned, is admirable and worthy to be effected at any apparent cost. the theory is still that of the roman lawyers, for in the phantasmagoria with which the natural condition is peopled, every feature and characteristic eludes the mind except the simplicity and harmony which possessed such charms for the jurisconsult; but the theory is, as it were, turned upside down. it is not the law of nature, but the state of nature, which is now the primary subject of contemplation. the roman had conceived that by careful observation of existing institutions parts of them could be singled out which either exhibited already, or could by judicious purification be made to exhibit, the vestiges of that reign of nature whose reality he faintly affirmed. rousseau's belief was that a perfect social order could be evolved from the unassisted consideration of the natural state, a social order wholly irrespective of the actual condition of the world and wholly unlike it. the great difference between the views is that one bitterly and broadly condemns the present for its unlikeness to the ideal past; while the other, assuming the present to be as necessary as the past, does not affect to disregard or censure it. it is not worth our while to analyse with any particularity that philosophy of politics, art, education, ethics, and social relation which was constructed on the basis of a state of nature. it still possesses singular fascination for the looser thinkers of every country, and is no doubt the parent, more or less remote, of almost all the prepossessions which impede the employment of the historical method of inquiry, but its discredit with the higher minds of our day is deep enough to astonish those who are familiar with the extraordinary vitality of speculative error. perhaps the question most frequently asked nowadays is not what is the value of these opinions, but what were the causes which gave them such overshadowing prominence a hundred years ago. the answer is, i conceive, a simple one. the study which in the last century would best have corrected the misapprehensions into which an exclusive attention to legal antiquities is apt to betray was the study of religion. but greek religion, as then understood, was dissipated in imaginative myths. the oriental religions, if noticed at all, appeared to be lost in vain cosmogonies. there was but one body of primitive records which was worth studying--the early history of the jews. but resort to this was prevented by the prejudices of the time. one of the few characteristics which the school of rousseau had in common with the school of voltaire was an utter disdain of all religious antiquities; and, more than all, of those of the hebrew race. it is well known that it was a point of honour with the reasoners of that day to assume not merely that the institutions called after moses were not divinely dictated, nor even that they were codified at a later date than that attributed to them, but that they and the entire pentateuch were a gratuitous forgery, executed after the return from the captivity. debarred, therefore, from one chief security against speculative delusion, the philosophers of france, in their eagerness to escape from what they deemed a superstition of the priests, flung themselves headlong into a superstition of the lawyers. but though the philosophy founded on the hypothesis of a state of nature has fallen low in general esteem, in so far as it is looked upon under its coarser and more palpable aspect, it does not follow that in its subtler disguises it has lost plausibility, popularity, or power. i believe, as i have said, that it is still the great antagonist of the historical method; and whenever (religious objections apart) any mind is seen to resist or contemn that mode of investigation, it will generally be found under the influence of a prejudice or vicious bias traceable to a conscious or unconscious reliance on a non-historic, natural, condition of society or the individual. it is chiefly, however, by allying themselves with political and social tendencies that the doctrines of nature and her law have preserved their energy. some of these tendencies they have stimulated, others they have actually created, to a great number they have given expression and form. they visibly enter largely into the ideas which constantly radiate from france over the civilised world, and thus become part of the general body of thought by which its civilisation is modified. the value of the influence which they thus exercise over the fortunes of the race is of course one of the points which our age debates most warmly, and it is beside the purpose of this treatise to discuss it. looking back, however, to the period at which the theory of the state of nature acquired the maximum of political importance, there are few who will deny that it helped most powerfully to bring about the grosser disappointments of which the first french revolution was fertile. it gave birth, or intense stimulus, to the vices of mental habit all but universal at the time, disdain of positive law, impatience of experience, and the preference of _à priori_ to all other reasoning. in proportion too as this philosophy fixes its grasp on minds which have thought less than others and fortified themselves with smaller observation, its tendency is to become distinctly anarchical. it is surprising to note how many of the _sophismes anarchiques_ which dumont published for bentham, and which embody bentham's exposure of errors distinctively french, are derived from the roman hypothesis in its french transformation, and are unintelligible unless referred to it. on this point too it is a curious exercise to consult the _moniteur_ during the principal eras of the revolution. the appeals to the law and state of nature become thicker as the times grow darker. they are comparatively rare in the constituent assembly; they are much more frequent in the legislative; in the convention, amid the din of debate on conspiracy and war, they are perpetual. there is a single example which very strikingly illustrates the effects of the theory of natural law on modern society, and indicates how very far are those effects from being exhausted. there cannot, i conceive, be any question that to the assumption of a law natural we owe the doctrine of the fundamental equality of human beings. that "all men are equal" is one of a large number of legal propositions which, in progress of time, have become political. the roman jurisconsults of the antonine era lay down that "omnes homines naturâ æquales sunt," but in their eyes this is a strictly juridical axiom. they intend to affirm that, under the hypothetical law of nature, and in so far as positive law approximates to it, the arbitrary distinctions which the roman civil law maintained between classes of persons cease to have a legal existence. the rule was one of considerable importance to the roman practitioner, who required to be reminded that, wherever roman jurisprudence was assumed to conform itself exactly to the code of nature, there was no difference in the contemplation of the roman tribunals between citizen and foreigner, between freeman and slave, between agnate and cognate. the jurisconsults who thus expressed themselves most certainly never intended to censure the social arrangements under which civil law fell somewhat short of its speculative type; nor did they apparently believe that the world would ever see human society completely assimilated to the economy of nature. but when the doctrine of human equality makes its appearance in a modern dress it has evidently clothed itself with a new shade of meaning. where the roman jurisconsult had written "æquales sunt," meaning exactly what he said, the modern civilian wrote "all men are equal" in the sense of "all men ought to be equal." the peculiar roman idea that natural law coexisted with civil law and gradually absorbed it, had evidently been lost sight of, or had become unintelligible, and the words which had at most conveyed a theory concerning the origin, composition, and development of human institutions, were beginning to express the sense of a great standing wrong suffered by mankind. as early as the beginning of the fourteenth century, the current language concerning the birth-state of men, though visibly intended to be identical with that of ulpian and his contemporaries, has assumed an altogether different form and meaning. the preamble to the celebrated ordinance of king louis hutin enfranchising the serfs of the royal domains would have sounded strangely to roman ears. "whereas, according to natural law, everybody ought to be born free; and by some usages and customs which, from long antiquity, have been introduced and kept until now in our realm, and peradventure by reason of the misdeeds of their predecessors, many persons of our common people have fallen into servitude, therefore, we, etc." this is the enunciation not of a legal rule but of a political dogma; and from this time the equality of men is spoken of by the french lawyers just as if it were a political truth which happened to have been preserved among the archives of their science. like all other deductions from the hypothesis of a law natural, and like the belief itself in a law of nature, it was languidly assented to and suffered to have little influence on opinion and practice until it passed out of the possession of the lawyers into that of the literary men of the eighteenth century and of the public which sat at their feet. with them it became the most distinct tenet of their creed, and was even regarded as a summary of all the others. it is probable, however, that the power which it ultimately acquired over the events of 1789 was not entirely owing to its popularity in france, for in the middle of the century it passed over to america. the american lawyers of the time, and particularly those of virginia, appear to have possessed a stock of knowledge which differed chiefly from that of their english contemporaries in including much which could only have been derived from the legal literature of continental europe. a very few glances at the writings of jefferson will show how strongly his mind was affected by the semi-juridical, semi-popular opinions which were fashionable in france, and we cannot doubt that it was sympathy with the peculiar ideas of the french jurists which led him and the other colonial lawyers who guided the course of events in america to join the specially french assumption that "all men are born equal" with the assumption, more familiar to englishmen, that "all men are born free," in the very first lines of their declaration of independence. the passage was one of great importance to the history of the doctrine before us. the american lawyers, in thus prominently and emphatically affirming the fundamental equality of human beings, gave an impulse to political movements in their own country, and in a less degree in great britain, which is far from having yet spent itself; but besides this they returned the dogma they had adopted to its home in france, endowed with vastly greater energy and enjoying much greater claims on general reception and respect. even the more cautious politicians of the first constituent assembly repeated ulpian's proposition as if it at once commended itself to the instincts and intuitions of mankind; and of all the "principles of 1789" it is the one which has been least strenuously assailed, which has most thoroughly leavened modern opinion, and which promises to modify most deeply the constitution of societies and the politics of states. the grandest function of the law of nature was discharged in giving birth to modern international law and to the modern law of war, but this part of its effects must here be dismissed with consideration very unequal to its importance. among the postulates which form the foundation of international law, or of so much of it as retains the figure which it received from its original architects, there are two or three of pre-eminent importance. the first of all is expressed in the position that there is a determinable law of nature. grotius and his successors took the assumption directly from the romans, but they differed widely from the roman jurisconsults and from each other in their ideas as to the mode of determination. the ambition of almost every publicist who has flourished since the revival of letters has been to provide new and more manageable definitions of nature and of her law, and it is indisputable that the conception in passing through the long series of writers on public law has gathered round it a large accretion, consisting of fragments of ideas derived from nearly every theory of ethics which has in its turn taken possession of the schools. yet it is a remarkable proof of the essentially historical character of the conception that, after all the efforts which have been made to evolve the code of nature from the necessary characteristics of the natural state, so much of the result is just what it would have been if men had been satisfied to adopt the dicta of the roman lawyers without questioning or reviewing them. setting aside the conventional or treaty law of nations, it is surprising how large a part of the system is made up of pure roman law. wherever there is a doctrine of the jurisconsults affirmed by them to be in harmony with the jus gentium, the publicists have found a reason for borrowing it, however plainly it may bear the marks of a distinctively roman origin. we may observe too that the derivative theories are afflicted with the weakness of the primary notion. in the majority of the publicists, the mode of thought is still "mixed." in studying these writers, the great difficulty is always to discover whether they are discussing law or morality--whether the state of international relations they describe is actual or ideal--whether they lay down that which is, or that which, in their opinion, ought to be. the assumption that natural law is binding on states _inter se_ is the next in rank of those which underlie international law. a series of assertions or admissions of this principle may be traced up to the very infancy of modern juridical science, and at first sight it seems a direct inference from the teaching of the romans. the civil condition of society being distinguished from the natural by the fact that in the first there is a distinct author of law, while in the last there is none, it appears as if the moment a number of _units_ were acknowledged to obey no common sovereign or political superior they were thrown back on the ulterior behests of the law natural. states are such units; the hypothesis of their independence excludes the notion of a common lawgiver, and draws with it, therefore, according to a certain range of ideas, the notion of subjection to the primeval order of nature. the alternative is to consider independent communities as not related to each other by any law, but this condition of lawlessness is exactly the vacuum which the nature of the jurisconsults abhorred. there is certainly apparent reason for thinking that if the mind of a roman lawyer rested on any sphere from which civil law was banished, it would instantly fill the void with the ordinances of nature. it is never safe, however, to assume that conclusions, however certain and immediate in our own eyes, were actually drawn at any period of history. no passage has ever been adduced from the remains of roman law which, in my judgment, proves the jurisconsults to have believed natural law to have obligatory force between independent commonwealths; and we cannot but see that to citizens of the roman empire who regarded their sovereign's dominions as conterminous with civilisation, the equal subjection of states to the law of nature, if contemplated at all, must have seemed at most an extreme result of curious speculation. the truth appears to be that modern international law, undoubted as is its descent from roman law, is only connected with it by an irregular filiation. the early modern interpreters of the jurisprudence of rome, misconceiving the meaning of jus gentium, assumed without hesitation that the romans had bequeathed to them a system of rules for the adjustment of international transactions. this "law of nations" was at first an authority which had formidable competitors to strive with, and the condition of europe was long such as to preclude its universal reception. gradually, however, the western world arranged itself in a form more favourable to the theory of the civilians; circumstances destroyed the credit of rival doctrines; and at last, at a peculiarly felicitous conjuncture, ayala and grotius were able to obtain for it the enthusiastic assent of europe, an assent which has been over and over again renewed in every variety of solemn engagement. the great men to whom its triumph is chiefly owing attempted, it need scarcely be said, to place it on an entirely new basis, and it is unquestionable that in the course of this displacement they altered much of its structure, though far less of it than is commonly supposed. having adopted from the antonine jurisconsults the position that the jus gentium and the jus naturæ were identical, grotius, with his immediate predecessors and his immediate successors, attributed to the law of nature an authority which would never perhaps have been claimed for it, if "law of nations" had not in that age been an ambiguous expression. they laid down unreservedly that natural law is the code of states, and thus put in operation a process which has continued almost down to our own day, the process of engrafting on the international system rules which are supposed to have been evolved from the unassisted contemplation of the conception of nature. there is too one consequence of immense practical importance to mankind which, though not unknown during the early modern history of europe, was never clearly or universally acknowledged till the doctrines of the grotian school had prevailed. if the society of nations is governed by natural law, the atoms which compose it must be absolutely equal. men under the sceptre of nature are all equal, and accordingly commonwealths are equal if the international state be one of nature. the proposition that independent communities, however different in size and power, are all equal in the view of the law of nations, has largely contributed to the happiness of mankind, though it is constantly threatened by the political tendencies of each successive age. it is a doctrine which probably would never have obtained a secure footing at all if international law had not been entirely derived from the majestic claims of nature by the publicists who wrote after the revival of letters. on the whole, however, it is astonishing, as i have observed before, how small a proportion the additions made to international law since grotius's day bear to the ingredients which have been simply taken from the most ancient stratum of the roman jus gentium. acquisition of territory has always been the great spur of national ambition, and the rules which govern this acquisition, together with the rules which moderate the wars in which it too frequently results, are merely transcribed from the part of the roman law which treats of the modes of acquiring property _jure gentium_. these modes of acquisition were obtained by the elder jurisconsults, as i have attempted to explain, by abstracting a common ingredient from the usages observed to prevail among the various tribes surrounding rome; and, having been classed on account of their origin in the "law common to all nations," they were thought by the later lawyers to fit in, on the score of their simplicity, with the more recent conception of a law natural. they thus made their way into the modern law of nations, and the result is that those parts of the international system which refer to _dominion_, its nature, its limitations, the modes of acquiring and securing it, are pure roman property law--so much, that is to say, of the roman law of property as the antonine jurisconsults imagined to exhibit a certain congruity with the natural state. in order that these chapters of international law may be capable of application, it is necessary that sovereigns should be related to each other like the members of a group of roman proprietors. this is another of the postulates which lie at the threshold of the international code, and it is also one which could not possibly have been subscribed to during the first centuries of modern european history. it is resolvable into the double proposition that "sovereignty is territorial," _i.e._ that it is always associated with the proprietorship of a limited portion of the earth's surface, and that "sovereigns _inter se_ are to be deemed not _paramount_, but _absolute_, owners of the state's territory." many contemporary writers on international law tacitly assume that the doctrines of their system, founded on principles of equity and common sense, were capable of being readily reasoned out in every stage of modern civilisation. but this assumption, while it conceals some real defects of the international theory, is altogether untenable, so far as regards a large part of modern history. it is not true that the authority of the jus gentium in the concerns of nations was always uncontradicted; on the contrary, it had to struggle long against the claims of several competing systems. it is again not true that the territorial character of sovereignty was always recognised, for long after the dissolution of the roman dominion the minds of men were under the empire of ideas irreconcileable with such a conception. an old order of things, and of views founded on it, had to decay--a new europe, and an apparatus of new notions congenial to it, had to spring up--before two of the chiefest postulates of international law could be universally conceded. it is a consideration well worthy to be kept in view, that during a large part of what we usually term modern history no such conception was entertained as that of "_territorial sovereignty_." sovereignty was not associated with dominion over a portion or subdivision of the earth. the world had lain for so many centuries under the shadow of imperial rome as to have forgotten that distribution of the vast spaces comprised in the empire which had once parcelled them out into a number of independent commonwealths, claiming immunity from extrinsic interference, and pretending to equality of national rights. after the subsidence of the barbarian irruptions, the notion of sovereignty that prevailed seems to have been twofold. on the one hand it assumed the form of what may be called "_tribe_-sovereignty." the franks, the burgundians, the vandals, the lombards, and visigoths were masters, of course, of the territories which they occupied, and to which some of them have given a geographical appellation; but they based no claim of right upon the fact of territorial possession, and indeed attached no importance to it whatever. they appear to have retained the traditions which they brought with them from the forest and the steppe, and to have still been in their own view a patriarchal society, a nomad horde, merely encamped for the time upon the soil which afforded them sustenance. part of transalpine gaul, with part of germany, had now become the country _de facto_ occupied by the franks--it was france; but the merovingian line of chieftains, the descendants of clovis, were not kings of france, they were kings of the franks. the alternative to this peculiar notion of sovereignty appears to have been--and this is the important point--the idea of universal dominion. the moment a monarch departed from the special relation of chief to clansmen, and became solicitous, for purposes of his own, to invest himself with a novel form of sovereignty, the only precedent which suggested itself for his adoption was the domination of the emperors of rome. to parody a common quotation, he became "_aut cæsar aut nullus_." either he pretended to the full prerogative of the byzantine emperor, or he had no political status whatever. in our own age, when a new dynasty is desirous of obliterating the prescriptive title of a deposed line of sovereigns, it takes its designation from the _people_, instead of the _territory_. thus we have emperors and kings of the french, and a king of the belgians. at the period of which we have been speaking, under similar circumstances a different alternative presented itself. the chieftain who would no longer call himself king of the tribe must claim to be emperor of the world. thus, when the hereditary mayors of the palace had ceased to compromise with the monarchs they had long since virtually dethroned, they soon became unwilling to call themselves kings of the franks, a title which belonged to the displaced merovings; but they could not style themselves kings of france, for such a designation, though apparently not unknown, was not a title of dignity. accordingly they came forward as aspirants to universal empire. their motive has been greatly misapprehended. it has been taken for granted by recent french writers that charlemagne was far before his age, quite as much in the character of his designs as in the energy with which he prosecuted them. whether it be true or not that anybody is at any time before his age, it is certainly true that charlemagne, in aiming at an unlimited dominion, was emphatically taking the only course which the characteristic ideas of his age permitted him to follow. of his intellectual eminence there cannot be a question, but it is proved by his acts and not by his theory. these singularities of view were not altered on the partition of the inheritance of charlemagne among his three grandsons. charles the bald, lewis, and lothair were still theoretically--if it be proper to use the word--emperors of rome. just as the cæsars of the eastern and western empires had each been _de jure_ emperor of the whole world, with _de facto_ control over half of it, so the three carlovingians appear to have considered their power as limited, but their title as unqualified. the same speculative universality of sovereignty continued to be associated with the imperial throne after the second division on the death of charles the fat, and, indeed, was never thoroughly dissociated from it so long as the empire of germany lasted. territorial sovereignty--the view which connects sovereignty with the possession of a limited portion of the earth's surface--was distinctly an offshoot, though a tardy one, of _feudalism_. this might have been expected _à priori_, for it was feudalism which for the first time linked personal duties, and by consequence personal rights, to the ownership of land. whatever be the proper view of its origin and legal nature, the best mode of vividly picturing to ourselves the feudal organisation is to begin with the basis, to consider the relation of the tenant to the patch of soil which created and limited his services--and then to mount up, through narrowing circles of super-feudation, till we approximate to the apex of the system. where that summit exactly was during the later portion of the dark ages it is not easy to decide. probably, wherever the conception of tribe sovereignty had really decayed, the topmost point was always assigned to the supposed successor of the cæsars of the west. but before long, when the actual sphere of imperial authority had immensely contracted, and when the emperors had concentrated the scanty remains of their power upon germany and north italy, the highest feudal superiors in all the outlying portions of the former carlovingian empire found themselves practically without a supreme head. gradually they habituated themselves to the new situation, and the fact of immunity put at last out of sight the theory of dependence; but there are many symptoms that this change was not quite easily accomplished; and, indeed, to the impression that in the nature of things there must necessarily be a culminating domination somewhere, we may, no doubt, refer the increasing tendency to attribute secular superiority to the see of rome. the completion of the first stage in the revolution of opinion is marked, of course, by the accession of the capetian dynasty in france. when the feudal prince of a limited territory surrounding paris began, from the accident of his uniting an unusual number of suzerainties in his own person, to call himself _king of france_, he became king in quite a new sense, a sovereign standing in the same relation to the soil of france as the baron to his estate, the tenant to his freehold. the precedent, however, was as influential as it was novel, and the form of the monarchy in france had visible effects in hastening changes which were elsewhere proceeding in the same direction. the kingship of our anglo-saxon regal houses was midway between the chieftainship of a tribe and a territorial supremacy; but the superiority of the norman monarchs, imitated from that of the king of france, was distinctly a territorial sovereignty. every subsequent dominion which was established or consolidated was formed on the later model. spain, naples, and the principalities founded on the ruins of municipal freedom in italy, were all under rulers whose sovereignty was territorial. few things, i may add, are more curious than the gradual lapse of the _venetians_ from one view to the other. at the commencement of its foreign conquests, the republic regarded itself as an antitype of the roman commonwealth, governing a number of subject provinces. move a century onwards, and you find that it wishes to be looked upon as a corporate sovereign, claiming the rights of a feudal suzerain over its possessions in italy and the ægean. during the period through which the popular ideas on the subject of sovereignty were undergoing this remarkable change, the system which stood in the place of what we now call international law, was heterogeneous in form and inconsistent in the principles to which it appealed. over so much of europe as was comprised in the romano-german empire, the connection of the confederate states was regulated by the complex and as yet incomplete mechanism of the imperial constitution; and, surprising as it may seem to us, it was a favourite notion of german lawyers that the relations of commonwealths, whether inside or outside the empire, ought to be regulated not by the _jus gentium_, but by the pure roman jurisprudence, of which cæsar was still the centre. this doctrine was less confidently repudiated in the outlying countries than we might have supposed antecedently; but, substantially, through the rest of europe feudal subordinations furnished a substitute for a public law; and when those were undetermined or ambiguous, there lay behind, in theory at least, a supreme regulating force in the authority of the head of the church. it is certain, however, that both feudal and ecclesiastical influences were rapidly decaying during the fifteenth, and even the fourteenth century; and if we closely examine the current pretexts of wars, and the avowed motives of alliances, it will be seen that, step by step with the displacement of the old principles, the views afterwards harmonised and consolidated by ayala and grotius were making considerable progress, though it was silent and but slow. whether the fusion of all the sources of authority would ultimately have evolved a system of international relations, and whether that system would have exhibited material differences from the fabric of grotius, is not now possible to decide, for as a matter of fact the reformation annihilated all its potential elements except one. beginning in germany, it divided the princes of the empire by a gulf too broad to be bridged over by the imperial supremacy, even if the imperial superior had stood neutral. he, however, was forced to take colour with the church against the reformers; the pope was, as a matter of course, in the same predicament; and thus the two authorities to whom belonged the office of mediation between combatants became themselves the chiefs of one great faction in the schism of the nations. feudalism, already enfeebled and discredited as a principle of public relations, furnished no bond whatever which was stable enough to countervail the alliances of religion. in a condition, therefore, of public law which was little less than chaotic, those views of a state system to which the roman jurisconsults were supposed to have given their sanction alone remained standing. the shape, the symmetry, and the prominence which they assumed in the hands of grotius are known to every educated man; but the great marvel of the treatise "de jure belli et pacis," was its rapid, complete, and universal success. the horrors of the thirty years' war, the boundless terror and pity which the unbridled license of the soldiery was exciting, must, no doubt, be taken to explain that success in some measure, but they do not wholly account for it. very little penetration into the ideas of that age is required to convince one that if the ground plan of the international edifice which was sketched in the great book of grotius had not appeared to be theoretically perfect, it would have been discarded by jurists and neglected by statesmen and soldiers. it is obvious that the speculative perfection of the grotian system is intimately connected with that conception of territorial sovereignty which we have been discussing. the theory of international law assumes that commonwealths are, relatively to each other, in a state of nature; but the component atoms of a natural society must, by the fundamental assumption, be insulated and independent of each other. if there be a higher power connecting them, however slightly and occasionally by the claim of common supremacy, the very conception of a common superior introduces the notion of positive law, and excludes the idea of a law natural. it follows, therefore, that if the universal suzerainty of an imperial head had been admitted even in bare theory, the labours of grotius would have been idle. nor is this the only point of junction between modern public law and those views of sovereignty of which i have endeavoured to describe the development. i have said that there are entire departments of international jurisprudence which consist of the roman law of property. what then is the inference? it is, that if there had been no such change as i have described in the estimate of sovereignty--if sovereignty had not been associated with the proprietorship of a limited portion of the earth, had not, in other words, become territorial--three parts of the grotian theory would have been incapable of application. chapter v primitive society and ancient law the necessity of submitting the subject of jurisprudence to scientific treatment has never been entirely lost sight of in modern times, and the essays which the consciousness of this necessity has produced have proceeded from minds of very various calibre, but there is not much presumption, i think, in asserting that what has hitherto stood in the place of a science has for the most part been a set of guesses, those very guesses of the roman lawyers which were examined in the two preceding chapters. a series of explicit statements, recognising and adopting these conjectural theories of a natural state, and of a system of principles congenial to it, has been continued with but brief interruption from the days of their inventors to our own. they appear in the annotations of the glossators who founded modern jurisprudence, and in the writings of the scholastic jurists who succeeded them. they are visible in the dogmas of the canonists. they are thrust into prominence by those civilians of marvellous erudition, who flourished at the revival of ancient letters. grotius and his successors invested them not less with brilliancy and plausibility than with practical importance. they may be read in the introductory chapters of our own blackstone, who has transcribed them textually from burlamaqui, and wherever the manuals published in the present day for the guidance of the student or the practitioner begin with any discussion of the first principles of law, it always resolves itself into a restatement of the roman hypothesis. it is however from the disguises with which these conjectures sometimes clothe themselves, quite as much as from their native form, that we gain an adequate idea of the subtlety with which they mix themselves in human thought. the lockeian theory of the origin of law in a social compact scarcely conceals its roman derivation, and indeed is only the dress by which the ancient views were rendered more attractive to a particular generation of the moderns; but on the other hand the theory of hobbes on the same subject was purposely devised to repudiate the reality of a law of nature as conceived by the romans and their disciples. yet these two theories, which long divided the reflecting politicians of england into hostile camps, resemble each other strictly in their fundamental assumption of a non-historic, unverifiable, condition of the race. their authors differed as to the characteristics of the præ-social state, and as to the nature of the abnormal action by which men lifted themselves out of it into that social organisation with which alone we are acquainted, but they agreed in thinking that a great chasm separated man in his primitive condition from man in society, and this notion we cannot doubt that they borrowed, consciously or unconsciously, from the romans. if indeed the phenomena of law be regarded in the way in which these theorists regarded them--that is, as one vast complex whole--it is not surprising that the mind should often evade the task it has set to itself by falling back on some ingenious conjecture which (plausibly interpreted) will seem to reconcile everything, or else that it should sometimes abjure in despair the labour of systematization. from the theories of jurisprudence which have the same speculative basis as the roman doctrine two of much celebrity must be excepted. the first of them is that associated with the great name of montesquieu. though there are some ambiguous expressions in the early part of the _esprit des lois_, which seem to show its writer's unwillingness to break quite openly with the views hitherto popular, the general drift of the book is certainly to indicate a very different conception of its subject from any which had been entertained before. it has often been noticed that, amidst the vast variety of examples which, in its immense width of survey, it sweeps together from supposed systems of jurisprudence, there is an evident anxiety to thrust into especial prominence those manners and institutions which astonish the civilised reader by their uncouthness, strangeness, or indecency. the inference constantly suggested is, that laws are the creatures of climate, local situation, accident, or imposture--the fruit of any causes except those which appear to operate with tolerable constancy. montesquieu seems, in fact, to have looked on the nature of man as entirely plastic, as passively reproducing the impressions, and submitting implicitly to the impulses, which it receives from without. and here no doubt lies the error which vitiates his system as a system. he greatly underrates the stability of human nature. he pays little or no regard to the inherited qualities of the race, those qualities which each generation receives from its predecessors, and transmits but slightly altered to the generation which follows it. it is quite true, indeed, that no complete account can be given of social phenomena, and consequently of laws, till due allowance has been made for those modifying causes which are noticed in the _esprit des lois_; but their number and their force appear to have been overestimated by montesquieu. many of the anomalies which he parades have since been shown to rest on false report or erroneous construction, and of those which remain not a few prove the permanence rather than the variableness of man's nature, since they are relics of older stages of the race which have obstinately defied the influences that have elsewhere had effect. the truth is that the stable part of our mental, moral, and physical constitution is the largest part of it, and the resistance it opposes to change is such that, though the variations of human society in a portion of the world are plain enough, they are neither so rapid nor so extensive that their amount, character, and general direction cannot be ascertained. an approximation to truth may be all that is attainable with our present knowledge, but there is no reason for thinking that is so remote, or (what is the same thing) that it requires so much future correction, as to be entirely useless and uninstructive. the other theory which has been adverted to is the historical theory of bentham. this theory which is obscurely (and, it might even be said, timidly) propounded in several parts of bentham's works is quite distinct from that analysis of the conception of law which he commenced in the "fragment on government," and which was more recently completed by mr. john austin. the resolution of a law into a command of a particular nature, imposed under special conditions, does not affect to do more than protect us against a difficulty--a most formidable one certainly--of language. the whole question remains open as to the motives of societies in imposing these commands on themselves, as to the connection of these commands with each other, and the nature of their dependence on those which preceded them, and which they have superseded. bentham suggests the answer that societies modify, and have always modified, their laws according to modifications of their views of general expediency. it is difficult to say that this proposition is false, but it certainly appears to be unfruitful. for that which seems expedient to a society, or rather to the governing part of it, when it alters a rule of law is surely the same thing as the object, whatever it may be, which it has in view when it makes the change. expediency and the greatest good are nothing more than different names for the impulse which prompts the modification; and when we lay down expediency as the rule of change in law or opinion, all we get by the proposition is the substitution of an express term for a term which is necessarily implied when we say that a change takes place. there is such wide-spread dissatisfaction with existing theories of jurisprudence, and so general a conviction that they do not really solve the questions they pretend to dispose of, as to justify the suspicion that some line of inquiry necessary to a perfect result has been incompletely followed or altogether omitted by their authors. and indeed there is one remarkable omission with which all these speculations are chargeable, except perhaps those of montesquieu. they take no account of what law has actually been at epochs remote from the particular period at which they made their appearance. their originators carefully observed the institutions of their own age and civilisation, and those of other ages and civilisations with which they had some degree of intellectual sympathy, but, when they turned their attention to archaic states of society which exhibited much superficial difference from their own, they uniformly ceased to observe and began guessing. the mistake which they committed is therefore analogous to the error of one who, in investigating the laws of the material universe, should commence by contemplating the existing physical world as a whole, instead of beginning with the particles which are its simplest ingredients. one does not certainly see why such a scientific solecism should be more defensible in jurisprudence than in any other region of thought. it would seem antecedently that we ought to commence with the simplest social forms in a state as near as possible to their rudimentary condition. in other words, if we followed the course usual in such inquiries, we should penetrate as far up as we could in the history of primitive societies. the phenomena which early societies present us with are not easy at first to understand, but the difficulty of grappling with them bears no proportion to the perplexities which beset us in considering the baffling entanglement of modern social organisation. it is a difficulty arising from their strangeness and uncouthness, not from their number and complexity. one does not readily get over the surprise which they occasion when looked at from a modern point of view; but when that is surmounted they are few enough and simple enough. but even if they gave more trouble than they do, no pains would be wasted in ascertaining the germs out of which has assuredly been unfolded every form of moral restraint which controls our actions and shapes our conduct at the present moment. the rudiments of the social state, so far as they are known to us at all, are known through testimony of three sorts--accounts by contemporary observers of civilisations less advanced than their own, the records which particular races have preserved concerning their primitive history, and ancient law. the first kind of evidence is the best we could have expected. as societies do not advance concurrently, but at different rates of progress, there have been epochs at which men trained to habits of methodical observation have really been in a position to watch and describe the infancy of mankind. tacitus made the most of such an opportunity; but the _germany_, unlike most celebrated classical books, has not induced others to follow the excellent example set by its author, and the amount of this sort of testimony which we possess is exceedingly small. the lofty contempt which a civilised people entertains for barbarous neighbours has caused a remarkable negligence in observing them, and this carelessness has been aggravated at times by fear, by religious prejudice, and even by the use of these very terms--civilisation and barbarism--which convey to most persons the impression of a difference not merely in degree but in kind. even the _germany_ has been suspected by some critics of sacrificing fidelity to poignancy of contrast and picturesqueness of narrative. other histories too, which have been handed down to us among the archives of the people to whose infancy they relate, have been thought distorted by the pride of race or by the religious sentiment of a newer age. it is important then to observe that these suspicions, whether groundless or rational, do not attach to a great deal of archaic law. much of the old law which has descended to us was preserved merely because it was old. those who practised and obeyed it did not pretend to understand it; and in some cases they even ridiculed and despised it. they offered no account of it except that it had come down to them from their ancestors. if we confine our attention, then, to those fragments of ancient institutions which cannot reasonably be supposed to have been tampered with, we are able to gain a clear conception of certain great characteristics of the society to which they originally belonged. advancing a step further, we can apply our knowledge to systems of law which, like the code of menu, are as a whole of suspicious authenticity; and, using the key we have obtained, we are in a position to discriminate those portions of them which are truly archaic from those which have been affected by the prejudices, interests, or ignorance of the compiler. it will at least be acknowledged that, if the materials for this process are sufficient, and if the comparisons be accurately executed, the methods followed are as little objectionable as those which have led to such surprising results in comparative philology. the effect of the evidence derived from comparative jurisprudence is to establish that view of the primeval condition of the human race which is known as the patriarchal theory. there is no doubt, of course, that this theory was originally based on the scriptural history of the hebrew patriarchs in lower asia; but, as has been explained already, its connection with scripture rather militated than otherwise against its reception as a complete theory, since the majority of the inquirers who till recently addressed themselves with most earnestness to the colligation of social phenomena, were either influenced by the strongest prejudice against hebrew antiquities or by the strongest desire to construct their system without the assistance of religious records. even now there is perhaps a disposition to undervalue these accounts, or rather to decline generalising from them, as forming part of the traditions of a semitic people. it is to be noted, however, that the legal testimony comes nearly exclusively from the institutions of societies belonging to the indo-european stock, the romans, hindoos, and sclavonians supplying the greater part of it; and indeed the difficulty at the present stage of the inquiry, is to know where to stop, to say of what races of men it is _not_ allowable to lay down that the society in which they are united was originally organised on the patriarchal model. the chief lineaments of such a society, as collected from the early chapters in genesis, i need not attempt to depict with any minuteness, both because they are familiar to most of us from our earliest childhood, and because, from the interest once attaching to the controversy which takes its name from the debate between locke and filmer, they fill a whole chapter, though not a very profitable one, in english literature. the points which lie on the surface of the history are these:--the eldest male parent--the eldest ascendant--is absolutely supreme in his household. his dominion extends to life and death, and is as unqualified over his children and their houses as over his slaves; indeed the relations of sonship and serfdom appear to differ in little beyond the higher capacity which the child in blood possesses of becoming one day the head of a family himself. the flocks and herds of the children are the flocks and herds of the father, and the possessions of the parent, which he holds in a representative rather than in a proprietary character, are equally divided at his death among his descendants in the first degree, the eldest son sometimes receiving a double share under the name of birthright, but more generally endowed with no hereditary advantage beyond an honorary precedence. a less obvious inference from the scriptural accounts is that they seem to plant us on the traces of the breach which is first effected in the empire of the parent. the families of jacob and esau separate and form two nations; but the families of jacob's children hold together and become a people. this looks like the immature germ of a state or commonwealth, and of an order of rights superior to the claims of family relation. if i were attempting for the more special purposes of the jurist to express compendiously the characteristics of the situation in which mankind disclose themselves at the dawn of their history, i should be satisfied to quote a few verses from the _odyssee_ of homer: [greek: toisin d out agorai boulêphoroi oute themistes. * * * themisteuei de ekastos paidôn êd alochôn, oud allêlôn alegousin.] "they have neither assemblies for consultation nor _themistes_, but every one exercises jurisdiction over his wives and his children, and they pay no regard to one another." these lines are applied to the cyclops, and it may not perhaps be an altogether fanciful idea when i suggest that the cyclops is homer's type of an alien and less advanced civilisation; for the almost physical loathing which a primitive community feels for men of widely different manners from its own usually expresses itself by describing them as monsters, such as giants, or even (which is almost always the case in oriental mythology) as demons. however that may be, the verses condense in themselves the sum of the hints which are given us by legal antiquities. men are first seen distributed in perfectly insulated groups, held together by obedience to the parent. law is the parent's word, but it is not yet in the condition of those _themistes_ which were analysed in the first chapter of this work. when we go forward to the state of society in which these early legal conceptions show themselves as formed, we find that they still partake of the mystery and spontaneity which must have seemed to characterise a despotic father's commands, but that at the same time, inasmuch as they proceed from a sovereign, they presuppose a union of family groups in some wider organisation. the next question is, what is the nature of this union and the degree of intimacy which it involves? it is just here that archaic law renders us one of the greatest of its services and fills up a gap which otherwise could only have been bridged by conjecture. it is full, in all its provinces, of the clearest indications that society in primitive times was not what it is assumed to be at present, a collection of _individuals_. in fact, and in the view of the men who composed it, it was _an aggregation of families_. the contrast may be most forcibly expressed by saying that the _unit_ of an ancient society was the family, of a modern society the individual. we must be prepared to find in ancient law all the consequences of this difference. it is so framed as to be adjusted to a system of small independent corporations. it is therefore scanty, because it is supplemented by the despotic commands of the heads of households. it is ceremonious, because the transactions to which it pays regard resemble international concerns much more than the quick play of intercourse between individuals. above all it has a peculiarity of which the full importance cannot be shown at present. it takes a view of _life_ wholly unlike any which appears in developed jurisprudence. corporations _never die_, and accordingly primitive law considers the entities with which it deals, _i.e._ the patriarchal or family groups, as perpetual and inextinguishable. this view is closely allied to the peculiar aspect under which, in very ancient times, moral attributes present themselves. the moral elevation and moral debasement of the individual appear to be confounded with, or postponed to, the merits and offences of the group to which the individual belongs. if the community sins, its guilt is much more than the sum of the offences committed by its members; the crime is a corporate act, and extends in its consequences to many more persons than have shared in its actual perpetration. if, on the other hand, the individual is conspicuously guilty, it is his children, his kinsfolk, his tribesmen, or his fellow-citizens, who suffer with him, and sometimes for him. it thus happens that the ideas of moral responsibility and retribution often seem to be more clearly realised at very ancient than at more advanced periods, for, as the family group is immortal, and its liability to punishment indefinite, the primitive mind is not perplexed by the questions which become troublesome as soon as the individual is conceived as altogether separate from the group. one step in the transition from the ancient and simple view of the matter to the theological or metaphysical explanations of later days is marked by the early greek notion of an inherited curse. the bequest received by his posterity from the original criminal was not a liability to punishment, but a liability to the commission of fresh offences which drew with them a condign retribution; and thus the responsibility of the family was reconciled with the newer phase of thought which limited the consequences of crime to the person of the actual delinquent. it would be a very simple explanation of the origin of society if we could base a general conclusion on the hint furnished us by the scriptural example already adverted to, and could suppose that communities began to exist wherever a family held together instead of separating at the death of its patriarchal chieftain. in most of the greek states and in rome there long remained the vestiges of an ascending series of groups out of which the state was at first constituted. the family, house, and tribe of the romans may be taken as the type of them, and they are so described to us that we can scarcely help conceiving them as a system of concentric circles which have gradually expanded from the same point. the elementary group is the family, connected by common subjection to the highest male ascendant. the aggregation of families forms the gens or house. the aggregation of houses makes the tribe. the aggregation of tribes constitutes the commonwealth. are we at liberty to follow these indications, and to lay down that the commonwealth is a collection of persons united by common descent from the progenitor of an original family? of this we may at least be certain, that all ancient societies regarded themselves as having proceeded from one original stock, and even laboured under an incapacity for comprehending any reason except this for their holding together in political union. the history of political ideas begins, in fact, with the assumption that kinship in blood is the sole possible ground of community in political functions; nor is there any of those subversions of feeling, which we term emphatically revolutions, so startling and so complete as the change which is accomplished when some other principle--such as that, for instance, of _local contiguity_--establishes itself for the first time as the basis of common political action. it may be affirmed then of early commonwealths that their citizens considered all the groups in which they claimed membership to be founded on common lineage. what was obviously true of the family was believed to be true first of the house, next of the tribe, lastly of the state. and yet we find that along with this belief, or, if we may use the word, this theory, each community preserved records or traditions which distinctly showed that the fundamental assumption was false. whether we look to the greek states, or to rome, or to the teutonic aristocracies in ditmarsh which furnished niebuhr with so many valuable illustrations, or to the celtic clan associations, or to that strange social organisation of the sclavonic russians and poles which has only lately attracted notice, everywhere we discover traces of passages in their history when men of alien descent were admitted to, and amalgamated with, the original brotherhood. adverting to rome singly, we perceive that the primary group, the family, was being constantly adulterated by the practice of adoption, while stories seem to have been always current respecting the exotic extraction of one of the original tribes and concerning a large addition to the houses made by one of the early kings. the composition of the state, uniformly assumed to be natural, was nevertheless known to be in great measure artificial. this conflict between belief or theory and notorious fact is at first sight extremely perplexing; but what it really illustrates is the efficiency with which legal fictions do their work in the infancy of society. the earliest and most extensively employed of legal fictions was that which permitted family relations to be created artificially, and there is none to which i conceive mankind to be more deeply indebted. if it had never existed, i do not see how any one of the primitive groups, whatever were their nature, could have absorbed another, or on what terms any two of them could have combined, except those of absolute superiority on one side and absolute subjection on the other. no doubt, when with our modern ideas we contemplate the union of independent communities, we can suggest a hundred modes of carrying it out, the simplest of all being that the individuals comprised in the coalescing groups shall vote or act together according to local propinquity; but the idea that a number of persons should exercise political rights in common simply because they happened to live within the same topographical limits was utterly strange and monstrous to primitive antiquity. the expedient which in those times commanded favour was that the incoming population should _feign themselves_ to be descended from the same stock as the people on whom they were engrafted; and it is precisely the good faith of this fiction, and the closeness with which it seemed to imitate reality, that we cannot now hope to understand. one circumstance, however, which it is important to recollect, is that the men who formed the various political groups were certainly in the habit of meeting together periodically, for the purpose of acknowledging and consecrating their association by common sacrifices. strangers amalgamated with the brotherhood were doubtless admitted to these sacrifices; and when that was once done we can believe that it seemed equally easy, or not more difficult, to conceive them as sharing in the common lineage. the conclusion then which is suggested by the evidence is, not that all early societies were formed by descent from the same ancestor, but that all of them which had any permanence and solidity either were so descended or assumed that they were. an indefinite number of causes may have shattered the primitive groups, but wherever their ingredients recombined, it was on the model or principle of an association of kindred. whatever were the fact, all thought, language, and law adjusted themselves to the assumption. but though all this seems to me to be established with reference to the communities with whose records we are acquainted, the remainder of their history sustains the position before laid down as to the essentially transient and terminable influence of the most powerful legal fictions. at some point of time--probably as soon as they felt themselves strong enough to resist extrinsic pressure--all these states ceased to recruit themselves by factitious extensions of consanguinity. they necessarily, therefore, became aristocracies, in all cases where a fresh population from any cause collected around them which could put in no claim to community of origin. their sternness in maintaining the central principle of a system under which political rights were attainable on no terms whatever except connection in blood, real or artificial, taught their inferiors another principle, which proved to be endowed with a far higher measure of vitality. this was the principle of _local contiguity_, now recognised everywhere as the condition of community in political functions. a new set of political ideas came at once into existence, which, being those of ourselves, our contemporaries, and in great measure of our ancestors, rather obscure our perception of the older theory which they vanquished and dethroned. the family then is the type of an archaic society in all the modifications which it was capable of assuming; but the family here spoken of is not exactly the family as understood by a modern. in order to reach the ancient conception we must give to our modern ideas an important extension and an important limitation. we must look on the family as constantly enlarged by the absorption of strangers within its circle, and we must try to regard the fiction of adoption as so closely simulating the reality of kinship that neither law nor opinion makes the slightest difference between a real and an adoptive connection. on the other hand, the persons theoretically amalgamated into a family by their common descent are practically held together by common obedience to their highest living ascendant, the father, grandfather, or great-grandfather. the patriarchal authority of a chieftain is as necessary an ingredient in the notion of the family group as the fact (or assumed fact) of its having sprung from his loins; and hence we must understand that if there be any persons who, however truly included in the brotherhood by virtue of their blood-relationship, have nevertheless _de facto_ withdrawn themselves from the empire of its ruler, they are always, in the beginnings of law, considered as lost to the family. it is this patriarchal aggregate--the modern family thus cut down on one side and extended on the other--which meets us on the threshold of primitive jurisprudence. older probably than the state, the tribe, and the house, it left traces of itself on private law long after the house and the tribe had been forgotten, and long after consanguinity had ceased to be associated with the composition of states. it will be found to have stamped itself on all the great departments of jurisprudence, and may be detected, i think, as the true source of many of their most important and most durable characteristics. at the outset, the peculiarities of law in its most ancient state lead us irresistibly to the conclusion that it took precisely the same view of the family group which is taken of individual men by the systems of rights and duties now prevalent throughout europe. there are societies open to our observation at this very moment whose laws and usages can scarcely be explained unless they are supposed never to have emerged from this primitive condition; but in communities more fortunately circumstanced the fabric of jurisprudence fell gradually to pieces, and if we carefully observe the disintegration we shall perceive that it took place principally in those portions of each system which were most deeply affected by the primitive conception of the family. in one all-important instance, that of the roman law, the change was effected so slowly, that from epoch to epoch we can observe the line and direction which it followed, and can even give some idea of the ultimate result to which it was tending. and, in pursuing this last inquiry, we need not suffer ourselves to be stopped by the imaginary barrier which separates the modern from the ancient world. for one effect of that mixture of refined roman law with primitive barbaric usage, which is known to us by the deceptive name of feudalism, was to revive many features of archaic jurisprudence which had died out of the roman world, so that the decomposition which had seemed to be over commenced again, and to some extent is still proceeding. on a few systems of law the family organisation of the earliest society has left a plain and broad mark in the life-long authority of the father or other ancestor over the person and property of his descendants, an authority which we may conveniently call by its later roman name of patria potestas. no feature of the rudimentary associations of mankind is deposed to by a greater amount of evidence than this, and yet none seems to have disappeared so generally and so rapidly from the usages of advancing communities. gaius, writing under the antonines, describes the institution as distinctively roman. it is true that, had he glanced across the rhine or the danube to those tribes of barbarians which were exciting the curiosity of some among his contemporaries, he would have seen examples of patriarchal power in its crudest form; and in the far east a branch of the same ethnical stock from which the romans sprang was repeating their patria potestas in some of its most technical incidents. but among the races understood to be comprised within the roman empire, gaius could find none which exhibited an institution resembling the roman "power of the father," except only the asiatic galatæ. there are reasons, indeed, as it seems to me, why the direct authority of the ancestor should, in the greater number of progressive societies, very shortly assume humbler proportions than belonged to it in their earliest state. the implicit obedience of rude men to their parent is doubtless a primary fact, which it would be absurd to explain away altogether by attributing to them any calculation of its advantages; but, at the same time, if it is natural in the sons to obey the father, it is equally natural that they should look to him for superior strength or superior wisdom. hence, when societies are placed under circumstances which cause an especial value to be attached to bodily and mental vigour, there is an influence at work which tends to confine the patria potestas to the cases where its possessor is actually skilful and strong. when we obtain our first glimpse of organised hellenic society, it seems as if supereminent wisdom would keep alive the father's power in persons whose bodily strength had decayed; but the relations of ulysses and laertes in the _odyssee_ appear to show that, where extraordinary valour and sagacity were united in the son, the father in the decrepitude of age was deposed from the headship of the family. in the mature greek jurisprudence, the rule advances a few steps on the practice hinted at in the homeric literature; and though very many traces of stringent family obligation remain, the direct authority of the parent is limited, as in european codes, to the nonage or minority of the children, or, in other words, to the period during which their mental and physical inferiority may always be presumed. the roman law, however, with its remarkable tendency to innovate on ancient usage only just so far as the exigency of the commonwealth may require, preserves both the primeval institution and the natural limitation to which i conceive it to have been subject. in every relation of life in which the collective community might have occasion to avail itself of his wisdom and strength, for all purposes of counsel or of war, the filius familias, or son under power, was as free as his father. it was a maxim of roman jurisprudence that the patria potestas did not extend to the jus publicum. father and son voted together in the city, and fought side by side in the field; indeed, the son, as general, might happen to command the father, or, as magistrate, decide on his contracts and punish his delinquencies. but in all the relations created by private law, the son lived under a domestic despotism which, considering the severity it retained to the last, and the number of centuries through which it endured, constitutes one of the strangest problems in legal history. the patria potestas of the romans, which is necessarily our type of the primeval paternal authority, is equally difficult to understand as an institution of civilised life, whether we consider its incidence on the person or its effects on property. it is to be regretted that a chasm which exists in its history cannot be more completely filled. so far as regards the person, the parent, when our information commences, has over his children the _jus vitæ necisque_, the power of life and death, and _à fortiori_ of uncontrolled corporal chastisement; he can modify their personal condition at pleasure; he can give a wife to his son; he can give his daughter in marriage; he can divorce his children of either sex; he can transfer them to another family by adoption; and he can sell them. late in the imperial period we find vestiges of all these powers, but they are reduced within very narrow limits. the unqualified right of domestic chastisement has become a right of bringing domestic offences under the cognisance of the civil magistrate; the privilege of dictating marriage has declined into a conditional veto; the liberty of selling has been virtually abolished, and adoption itself, destined to lose almost all its ancient importance in the reformed system of justinian, can no longer be effected without the assent of the child transferred to the adoptive parentage. in short, we are brought very close to the verge of the ideas which have at length prevailed in the modern world. but between these widely distant epochs there is an interval of obscurity, and we can only guess at the causes which permitted the patria potestas to last as long as it did by rendering it more tolerable than it appears. the active discharge of the most important among the duties which the son owed to the state must have tempered the authority of his parent if they did not annul it. we can readily persuade ourselves that the paternal despotism could not be brought into play without great scandal against a man of full age occupying a high civil office. during the earlier history, however, such cases of practical emancipation would be rare compared with those which must have been created by the constant wars of the roman republic. the military tribune and the private soldier who were in the field three-quarters of a year during the earlier contests, at a later period the proconsul in charge of a province, and the legionaries who occupied it, cannot have had practical reason to regard themselves as the slaves of a despotic master; and all these avenues of escape tended constantly to multiply themselves. victories led to conquests, conquests to occupations; the mode of occupation by colonies was exchanged for the system of occupying provinces by standing armies. each step in advance was a call for the expatriation of more roman citizens and a fresh draft on the blood of the failing latin race. we may infer, i think, that a strong sentiment in favour of the relaxation of the patria potestas had become fixed by the time that the pacification of the world commenced on the establishment of the empire. the first serious blows at the ancient institution are attributed to the earlier cæsars, and some isolated interferences of trajan and hadrian seem to have prepared the ground for a series of express enactments which, though we cannot always determine their dates, we know to have limited the father's powers on the one hand, and on the other to have multiplied facilities for their voluntary surrender. the older mode of getting rid of the potestas, by effecting a triple sale of the son's person, is evidence, i may remark, of a very early feeling against the unnecessary prolongation of the powers. the rule which declared that the son should be free after having been three times sold by his father seems to have been originally meant to entail penal consequences on a practice which revolted even the imperfect morality of the primitive roman. but even before the publication of the twelve tables it had been turned, by the ingenuity of the jurisconsults, into an expedient for destroying the parental authority wherever the father desired that it should cease. many of the causes which helped to mitigate the stringency of the father's power over the persons of his children are doubtless among those which do not lie upon the face of history. we cannot tell how far public opinion may have paralysed an authority which the law conferred, or how far natural affection may have rendered it endurable. but though the powers over the _person_ may have been latterly nominal, the whole tenour of the extant roman jurisprudence suggests that the father's rights over the son's _property_ were always exercised without scruple to the full extent to which they were sanctioned by law. there is nothing to astonish us in the latitude of these rights when they first show themselves. the ancient law of rome forbade the children under power to hold property apart from their parent, or (we should rather say) never contemplated the possibility of their claiming a separate ownership. the father was entitled to take the whole of the son's acquisitions, and to enjoy the benefit of his contracts without being entangled in any compensating liability. so much as this we should expect from the constitution of the earliest roman society, for we can hardly form a notion of the primitive family group unless we suppose that its members brought their earnings of all kinds into the common stock while they were unable to bind it by improvident individual engagements. the true enigma of the patria potestas does not reside here, but in the slowness with which these proprietary privileges of the parent were curtailed, and in the circumstance that, before they were seriously diminished, the whole civilised world was brought within their sphere. no innovation of any kind was attempted till the first years of the empire, when the acquisitions of soldiers on service were withdrawn from the operation of the patria potestas, doubtless as part of the reward of the armies which had overthrown the free commonwealth. three centuries afterwards the same immunity was extended to the earnings of persons who were in the civil employment of the state. both changes were obviously limited in their application, and they were so contrived in technical form as to interfere as little as possible with the principle of patria potestas. a certain qualified and dependent ownership had always been recognised by the roman law in the perquisites and savings which slaves and sons under power were not compelled to include in the household accounts, and the special name of this permissive property, peculium, was applied to the acquisitions newly relieved from patria potestas, which were called in the case of soldiers castrense peculium, and quasi-castrense peculium in the case of civil servants. other modifications of the parental privileges followed, which showed a less studious outward respect for the ancient principle. shortly after the introduction of the quasi-castrense peculium, constantine the great took away the father's absolute control over property which his children had inherited from their mother, and reduced it to a _usufruct_, or life-interest. a few more changes of slight importance followed in the western empire, but the furthest point reached was in the east, under justinian, who enacted that unless the acquisitions of the child were derived from the parent's own property, the parent's rights over them should not extend beyond enjoying their produce for the period of his life. even this, the utmost relaxation of the roman patria potestas, left it far ampler and severer than any analogous institution of the modern world. the earliest modern writers on jurisprudence remark that it was only the fiercer and ruder of the conquerors of the empire, and notably the nations of sclavonic origin, which exhibited a patria potestas at all resembling that which was described in the pandects and the code. all the germanic immigrants seem to have recognised a corporate union of the family under the _mund_, or authority of a patriarchal chief; but his powers are obviously only the relics of a decayed patria potestas, and fell far short of those enjoyed by the roman father. the franks are particularly mentioned as not having the roman institution, and accordingly the old french lawyers, even when most busily engaged in filling the interstices of barbarous custom with rules of roman law, were obliged to protect themselves against the intrusion of the potestas by the express maxim, _puyssance de père en france n'a lieu_. the tenacity of the romans in maintaining this relic of their most ancient condition is in itself remarkable, but it is less remarkable than the diffusion of the potestas over the whole of a civilisation from which it had once disappeared. while the castrense peculium constituted as yet the sole exception to the father's power over property, and while his power over his children's persons was still extensive, the roman citizenship, and with it the patria potestas, were spreading into every corner of the empire. every african or spaniard, every gaul, briton, or jew, who received this honour by gift, purchase, or inheritance, placed himself under the roman law of persons, and, though our authorities intimate that children born before the acquisition of citizenship could not be brought under power against their will, children born after it and all ulterior descendants were on the ordinary footing of a roman _filius familias_. it does not fall within the province of this treatise to examine the mechanism of the later roman society, but i may be permitted to remark that there is little foundation for the opinion which represents the constitution of antoninus caracalla conferring roman citizenship on the whole of his subjects as a measure of small importance. however we may interpret it, it must have enormously enlarged the sphere of the patria potestas, and it seems to me that the tightening of family relations which it effected is an agency which ought to be kept in view more than it has been, in accounting for the great moral revolution which was transforming the world. before this branch of our subject is dismissed, it should be observed that the paterfamilias was answerable for the delicts (or _torts_) of his sons under power. he was similarly liable for the torts of his slaves; but in both cases he originally possessed the singular privilege of tendering the delinquent's person in full satisfaction of the damage. the responsibility thus incurred on behalf of sons, coupled with the mutual incapacity of parent and child under power to sue one another, has seemed to some jurists to be best explained by the assumption of a "unity of person" between the paterfamilias and the filius-familias. in the chapter on successions i shall attempt to show in what sense, and to what extent, this "unity" can be accepted as a reality. i can only say at present that these responsibilities of the paterfamilias, and other legal phenomena which will be discussed hereafter, appear to me to point at certain _duties_ of the primitive patriarchal chieftain which balanced his _rights_. i conceive that, if he disposed absolutely of the persons and fortune of his clansmen, this representative ownership was coextensive with a liability to provide for all members of the brotherhood out of the common fund. the difficulty is to throw ourselves out of our habitual associations sufficiently for conceiving the nature of his obligation. it was not a legal duty, for law had not yet penetrated into the precinct of the family. to call it _moral_ is perhaps to anticipate the ideas belonging to a later stage of mental development; but the expression "moral obligation" is significant enough for our purpose, if we understand by it a duty semi-consciously followed and enforced rather by instinct and habit than by definite sanctions. the patria potestas, in its normal shape, has not been, and, as it seems to me, could not have been, a generally durable institution. the proof of its former universality is therefore incomplete so long as we consider it by itself; but the demonstration may be carried much further by examining other departments of ancient law which depend on it ultimately, but not by a thread of connection visible in all its parts or to all eyes. let us turn for example to kinship, or in other words, to the scale on which the proximity of relatives to each other is calculated in archaic jurisprudence. here again it will be convenient to employ the roman terms, agnatic and cognatic relationship. _cognatic_ relationship is simply the conception of kinship familiar to modern ideas; it is the relationship arising through common descent from the same pair of married persons, whether the descent be traced through males or females. _agnatic_ relationship is something very different: it excludes a number of persons whom we in our day should certainly consider of kin to ourselves, and it includes many more whom we should never reckon among our kindred. it is in truth the connection existing between the members of the family, conceived as it was in the most ancient times. the limits of this connection are far from conterminous with those of modern relationship. cognates then are all those persons who can trace their blood to a single ancestor and ancestress; or, if we take the strict technical meaning of the word in roman law, they are all who trace their blood to the legitimate marriage of a common pair. "cognation" is therefore a relative term, and the degree of connection in blood which it indicates depends on the particular marriage which is selected as the commencement of the calculation. if we begin with the marriage of father and mother, cognation will only express the relationship of brothers and sisters; if we take that of the grandfather and grandmother, then uncles, aunts, and their descendants will also be included in the notion of cognation, and following the same process a larger number of cognates may be continually obtained by choosing the starting point higher and higher up in the line of ascent. all this is easily understood by a modern; but who are the agnates? in the first place, they are all the cognates who trace their connection exclusively through males. a table of cognates is, of course, formed by taking each lineal ancestor in turn and including all his descendants of both sexes in the tabular view; if then, in tracing the various branches of such a genealogical table or tree, we stop whenever we come to the name of a female and pursue that particular branch or ramification no further, all who remain after the descendants of women have been excluded are agnates, and their connection together is agnatic relationship. i dwell a little on the process which is practically followed in separating them from the cognates, because it explains a memorable legal maxim, "mulier est finis familiæ"--a woman is the terminus of the family. a female name closes the branch or twig of the genealogy in which it occurs. none of the descendants of a female are included in the primitive notion of family relationship. if the system of archaic law at which we are looking be one which admits adoption, we must add to the agnate thus obtained all persons, male or female, who have been brought into the family by the artificial extension of its boundaries. but the descendants of such persons will only be agnates, if they satisfy the conditions which have just been described. what then is the reason of this arbitrary inclusion and exclusion? why should a conception of kinship, so elastic as to include strangers brought into the family by adoption, be nevertheless so narrow as to shut out the descendants of a female member? to solve these questions, we must recur to the patria potestas. the foundation of agnation is not the marriage of father and mother, but the authority of the father. all persons are agnatically connected together who are under the same paternal power, or who have been under it, or who might have been under it if their lineal ancestor had lived long enough to exercise his empire. in truth, in the primitive view, relationship is exactly limited by patria potestas. where the potestas begins, kinship begins; and therefore adoptive relatives are among the kindred. where the potestas ends, kinship ends; so that a son emancipated by his father loses all rights of agnation. and here we have the reason why the descendants of females are outside the limits of archaic kinship. if a woman died unmarried, she could have no legitimate descendants. if she married, her children fell under the patria potestas, not of her father, but of her husband, and thus were lost to her own family. it is obvious that the organisation of primitive societies would have been confounded, if men had called themselves relatives of their mother's relatives. the inference would have been that a person might be subject to two distinct patriæ potestates; but distinct patriæ potestates implied distinct jurisdictions, so that anybody amenable to two of them at the same time would have lived under two different dispensations. as long as the family was an imperium in imperio, a community within the commonwealth, governed by its own institutions of which the parent was the source, the limitation of relationship to the agnates was a necessary security against a conflict of laws in the domestic forum. the parental powers proper are extinguished by the death of the parent, but agnation is as it were a mould which retains their imprint after they have ceased to exist. hence comes the interest of agnation for the inquirer into the history of jurisprudence. the powers themselves are discernible in comparatively few monuments of ancient law, but agnatic relationship, which implies their former existence, is discoverable almost everywhere. there are few indigenous bodies of law belonging to communities of the indo-european stock, which do not exhibit peculiarities in the most ancient part of their structure which are clearly referable to agnation. in hindoo law, for example, which is saturated with the primitive notions of family dependency, kinship is entirely agnatic, and i am informed that in hindoo genealogies the names of women are generally omitted altogether. the same view of relationship pervades so much of the laws of the races who overran the roman empire as appears to have really formed part of their primitive usage, and we may suspect that it would have perpetuated itself even more than it has in modern european jurisprudence, if it had not been for the vast influence of the later roman law on modern thought. the prætors early laid hold on cognation as the _natural_ form of kinship, and spared no pains in purifying their system from the older conception. their ideas have descended to us, but still traces of agnation are to be seen in many of the modern rules of succession after death. the exclusion of females and their children from governmental functions, commonly attributed to the usage of the salian franks, has certainly an agnatic origin, being descended from the ancient german rule of succession to allodial property. in agnation too is to be sought the explanation of that extraordinary rule of english law, only recently repealed, which prohibited brothers of the half-blood from succeeding to one another's lands. in the customs of normandy, the rule applies to _uterine_ brothers only, that is, to brothers by the same mother but not by the same father; and, limited in this way, it is a strict deduction from the system of agnation, under which uterine brothers are no relations at all to one another. when it was transplanted to england, the english judges, who had no clue to its principle, interpreted it as a general prohibition against the succession of the half-blood, and extended it to _consanguineous_ brothers, that is to sons of the same father by different wives. in all the literature which enshrines the pretended philosophy of law, there is nothing more curious than the pages of elaborate sophistry in which blackstone attempts to explain and justify the exclusion of the half-blood. it may be shown, i think, that the family, as held together by the patria potestas, is the nidus out of which the entire law of persons has germinated. of all the chapters of that law the most important is that which is concerned with the status of females. it has just been stated that primitive jurisprudence, though it does not allow a woman to communicate any rights of agnation to her descendants, includes herself nevertheless in the agnatic bond. indeed, the relation of a female to the family in which she was born is much stricter, closer, and more durable than that which unites her male kinsmen. we have several times laid down that early law takes notice of families only; this is the same thing as saying that it only takes notice of persons exercising patria potestas, and accordingly the only principle on which it enfranchises a son or grandson at the death of his parent, is a consideration of the capacity inherent in such son or grandson to become himself the head of a new family and the root of a new set of parental powers. but a woman, of course, has no capacity of the kind, and no title accordingly to the liberation which it confers. there is therefore a peculiar contrivance of archaic jurisprudence for retaining her in the bondage of the family for life. this is the institution known to the oldest roman law as the perpetual tutelage of women, under which a female, though relieved from her parent's authority by his decease, continues subject through life to her nearest male relations as her guardians. perpetual guardianship is obviously neither more nor less than an artificial prolongation of the patria potestas, when for other purposes it has been dissolved. in india, the system survives in absolute completeness, and its operation is so strict that a hindoo mother frequently becomes the ward of her own sons. even in europe, the laws of the scandinavian nations respecting women preserved it until quite recently. the invaders of the western empire had it universally among their indigenous usages, and indeed their ideas on the subject of guardianship, in all its forms, were among the most retrogressive of those which they introduced into the western world. but from the mature roman jurisprudence it had entirely disappeared. we should know almost nothing about it, if we had only the compilations of justinian to consult; but the discovery of the manuscript of gaius discloses it to us at a most interesting epoch, just when it had fallen into complete discredit and was verging on extinction. the great jurisconsult himself scouts the popular apology offered for it in the mental inferiority of the female sex, and a considerable part of his volume is taken up with descriptions of the numerous expedients, some of them displaying extraordinary ingenuity, which the roman lawyers had devised for enabling women to defeat the ancient rules. led by their theory of natural law, the jurisconsults had evidently at this time assumed the equality of the sexes as a principle of their code of equity. the restrictions which they attacked were, it is to be observed, restrictions on the disposition of property, for which the assent of the woman's guardians was still formally required. control of her person was apparently quite obsolete. ancient law subordinates the woman to her blood-relations, while a prime phenomenon of modern jurisprudence has been her subordination to her husband. the history of the change is remarkable. it begins far back in the annals of rome. anciently, there were three modes in which marriage might be contracted according to roman usage, one involving a religious solemnity, the other two the observance of certain secular formalities. by the religious marriage or _confarreation_; by the higher form of civil marriage, which was called _coemption_; and by the lower form, which was termed _usus_, the husband acquired a number of rights over the person and property of his wife, which were on the whole in excess of such as are conferred on him in any system of modern jurisprudence. but in what capacity did he acquire them? not as _husband_, but as _father_. by the confarreation, coemption, and usus, the woman passed _in manum viri_, that is, in law she became the _daughter_ of her husband. she was included in his patria potestas. she incurred all the liabilities springing out of it while it subsisted, and surviving it when it had expired. all her property became absolutely his, and she was retained in tutelage after his death to the guardian whom he had appointed by will. these three ancient forms of marriage fell, however, gradually into disuse, so that, at the most splendid period of roman greatness, they had almost entirely given place to a fashion of wedlock--old apparently, but not hitherto considered reputable--which was founded on a modification of the lower form of civil marriage. without explaining the technical mechanism of the institution now generally popular, i may describe it as amounting in law to little more than a temporary deposit of the woman by her family. the rights of the family remained unimpaired, and the lady continued in the tutelage of guardians whom her parents had appointed and whose privileges of control overrode, in many material respects, the inferior authority of her husband. the consequence was that the situation of the roman female, whether married or unmarried, became one of great personal and proprietary independence, for the tendency of the later law, as i have already hinted, was to reduce the power of the guardian to a nullity, while the form of marriage in fashion conferred on the husband no compensating superiority. but christianity tended somewhat from the very first to narrow this remarkable liberty. led at first by justifiable disrelish for the loose practices of the decaying heathen world, but afterwards hurried on by a passion of asceticism, the professors of the new faith looked with disfavour on a marital tie which was in fact the laxest the western world has seen. the latest roman law, so far as it is touched by the constitutions of the christian emperors, bears some marks of a reaction against the liberal doctrines of the great antonine jurisconsults. and the prevalent state of religious sentiment may explain why it is that modern jurisprudence, forged in the furnace of barbarian conquest, and formed by the fusion of roman jurisprudence with patriarchal usage, has absorbed, among its rudiments, much more than usual of those rules concerning the position of women which belong peculiarly to an imperfect civilisation. during the troubled era which begins modern history, and while the laws of the germanic and sclavonic immigrants remained superposed like a separate layer above the roman jurisprudence of their provincial subjects, the women of the dominant races are seen everywhere under various forms of archaic guardianship, and the husband who takes a wife from any family except his own pays a money-price to her relations for the tutelage which they surrender to him. when we move onwards, and the code of the middle ages has been formed by the amalgamation of the two systems, the law relating to women carries the stamp of its double origin. the principle of the roman jurisprudence is so far triumphant that unmarried females are generally (though there are local exceptions to the rule) relieved from the bondage of the family; but the archaic principle of the barbarians has fixed the position of married women, and the husband has drawn to himself in his marital character the powers which had once belonged to his wife's male kindred, the only difference being that he no longer purchases his privileges. at this point therefore the modern law of western and southern europe begins to be distinguished by one of its chief characteristics, the comparative freedom it allows to unmarried women and widows, the heavy disabilities it imposes on wives. it was very long before the subordination entailed on the other sex by marriage was sensibly diminished. the principal and most powerful solvent of the revived barbarism of europe was always the codified jurisprudence of justinian, wherever it was studied with that passionate enthusiasm which it seldom failed to awaken. it covertly but most efficaciously undermined the customs which it pretended merely to interpret. but the chapter of law relating to married women was for the most part read by the light, not of roman, but of canon law, which in no one particular departs so widely from the spirit of the secular jurisprudence as in the view it takes of the relations created by marriage. this was in part inevitable, since no society which preserves any tincture of christian institution is likely to restore to married women the personal liberty conferred on them by the middle roman law, but the proprietary disabilities of married females stand on quite a different basis from their personal incapacities, and it is by keeping alive and consolidating the former that the expositors of the canon law have deeply injured civilisation. there are many vestiges of a struggle between the secular and ecclesiastical principles, but the canon law nearly everywhere prevailed. in some of the french provinces married women, of a rank below nobility, obtained all the powers of dealing with property which roman jurisprudence had allowed, and this local law has been largely followed by the code napoléon; but the state of the scottish law shows that scrupulous deference to the doctrines of the roman jurisconsults did not always extend to mitigating the disabilities of wives. the systems however which are least indulgent to married women are invariably those which have followed the canon law exclusively, or those which, from the lateness of their contact with european civilisation, have never had their archaisms weeded out. the scandinavian laws, harsh till lately to all females, are still remarkable for their severity to wives. and scarcely less stringent in the proprietary incapacities it imposes is the english common law, which borrows far the greatest number of its fundamental principles from the jurisprudence of the canonists. indeed, the part of the common law which prescribes the legal situation of married women may serve to give an englishman clear notions of the great institution which has been the principal subject of this chapter. i do not know how the operation and nature of the ancient patria potestas can be brought so vividly before the mind as by reflecting on the prerogatives attached to the husband by the pure english common law, and by recalling the rigorous consistency with which the view of a complete legal subjection on the part of the wife is carried by it, where it is untouched by equity or statutes, through every department of rights, duties, and remedies. the distance between the eldest and latest roman law on the subject of children under power may be considered as equivalent to the difference between the common law and the jurisprudence of the court of chancery in the rules which they respectively apply to wives. if we were to lose sight of the true origin of guardianship in both its forms and were to employ the common language on these topics, we should find ourselves remarking that, while the tutelage of women is an instance in which systems of archaic law push to an extravagant length the fiction of suspended rights, the rules which they lay down for the guardianship of male orphans are an example of a fault in precisely the opposite direction. all such systems terminate the tutelage of males at an extraordinary early period. under the ancient roman law, which may be taken as their type, the son who was delivered from patria potestas by the death of his father or grandfather remained under guardianship till an epoch which for general purposes may be described as arriving with his fifteenth year; but the arrival of that epoch placed him at once in the full enjoyment of personal and proprietary independence. the period of minority appears therefore to have been as unreasonably short as the duration of the disabilities of women was preposterously long. but, in point of fact, there was no element either of excess or of shortcoming in the circumstances which gave their original form to the two kinds of guardianship. neither the one nor the other of them was based on the slightest consideration of public or private convenience. the guardianship of male orphans was no more designed originally to shield them till the arrival of years of discretion than the tutelage of women was intended to protect the other sex against its own feebleness. the reason why the death of the father delivered the son from the bondage of the family was the son's capacity for becoming himself the head of a new family and the founder of a new patria potestas; no such capacity was possessed by the woman and therefore she was _never_ enfranchised. accordingly the guardianship of male orphans was a contrivance for keeping alive the semblance of subordination to the family of the parent, up to the time when the child was supposed capable of becoming a parent himself. it was a prolongation of the patria potestas up to the period of bare physical manhood. it ended with puberty, for the rigour of the theory demanded that it should do so. inasmuch, however, as it did not profess to conduct the orphan ward to the age of intellectual maturity or fitness for affairs, it was quite unequal to the purposes of general convenience; and this the romans seem to have discovered at a very early stage of their social progress. one of the very oldest monuments of roman legislation is the _lex lætoria_ or _plætoria_ which placed all free males who were of full years and rights under the temporary control of a new class of guardians, called _curatores_, whose sanction was required to validate their acts or contracts. the twenty-sixth year of the young man's age was the limit of this statutory supervision; and it is exclusively with reference to the age of twenty-five that the terms "majority" and "minority" are employed in roman law. _pupilage_ or _wardship_ in modern jurisprudence had adjusted itself with tolerable regularity to the simple principle of protection to the immaturity of youth both bodily and mental. it has its natural termination with years of discretion. but for protection against physical weakness and for protection against intellectual incapacity, the romans looked to two different institutions, distinct both in theory and design. the ideas attendant on both are combined in the modern idea of guardianship. the law of persons contains but one other chapter which can be usefully cited for our present purpose. the legal rules by which systems of nature jurisprudence regulate the connection of _master and slave_, present no very distinct traces of the original condition common to ancient societies. but there are reasons for this exception. there seems to be something in the institution of slavery which has at all times either shocked or perplexed mankind, however little habituated to reflection, and however slightly advanced in the cultivation of its moral instincts. the compunction which ancient communities almost unconsciously experienced appears to have always resulted in the adoption of some imaginary principle upon which a defence, or at least a rationale, of slavery could be plausibly founded. very early in their history the greeks explained the institution as grounded on the intellectual inferiority of certain races and their consequent natural aptitude for the servile condition. the romans, in a spirit equally characteristic, derived it from a supposed agreement between the victor and the vanquished in which the first stipulated for the perpetual services of his foe; and the other gained in consideration the life which he had legitimately forfeited. such theories were not only unsound but plainly unequal to the case for which they affected to account. still they exercised powerful influence in many ways. they satisfied the conscience of the master. they perpetuated and probably increased the debasement of the slave. and they naturally tended to put out of sight the relation in which servitude had originally stood to the rest of the domestic system. the relation, though not clearly exhibited, is casually indicated in many parts of primitive law, and more particularly in the typical system--that of ancient rome. much industry and some learning have been bestowed in the united states of america on the question whether the slave was in the early stages of society a recognised member of the family. there is a sense in which an affirmative answer must certainly be given. it is clear, from the testimony both of ancient law and of many primeval histories, that the slave might under certain conditions be made the heir, or universal successor, of the master, and this significant faculty, as i shall explain in the chapter on succession, implies that the government and representation of the family might, in a particular state of circumstances, devolve on the bondman. it seems, however, to be assumed in the american arguments on the subject that, if we allow slavery to have been a primitive family institution, the acknowledgment is pregnant with an admission of the moral defensibility of negro-servitude at the present moment. what then is meant by saying that the slave was originally included in the family? not that his situation may not have been the fruit of the coarsest motives which can actuate man. the simple wish to use the bodily powers of another person as a means of ministering to one's own ease or pleasure is doubtless the foundation of slavery, and as old as human nature. when we speak of the slave as anciently included in the family, we intend to assert nothing as to the motives of those who brought him into it or kept him there; we merely imply that the tie which bound him to his master was regarded as one of the same general character with that which united every other member of the group to its chieftain. this consequence is, in fact, carried in the general assertion already made that the primitive ideas of mankind were unequal to comprehending any basis of the connection _inter se_ of individuals, apart from the relations of family. the family consisted primarily of those who belonged to it by consanguinity and next of those who had been engrafted on it by adoption; but there was still a third class of persons who were only joined to it by common subjection to its head, and these were the slaves. the born and the adopted subjects of the chief were raised above the slave by the certainty that in the ordinary course of events they would be relieved from bondage and entitled to exercise powers of their own; but that the inferiority of the slave was not such as to place him outside the pale of the family, or such as to degrade him to the footing of inanimate property, is clearly proved, i think, by the many traces which remain of his ancient capacity for inheritance in the last resort. it would, of course, be unsafe in the highest degree to hazard conjectures how far the lot of the slave was mitigated, in the beginnings of society, by having a definite place reserved to him in the empire of the father. it is, perhaps, more probable that the son was practically assimilated to the slave, than that the slave shared any of the tenderness which in later times was shown to the son. but it may be asserted with some confidence of advanced and matured codes that, wherever servitude is sanctioned, the slave has uniformly greater advantages under systems which preserve some memento of his earlier condition than under those which have adopted some other theory of his civil degradation. the point of view from which jurisprudence regards the slave is always of great importance to him. the roman law was arrested in its growing tendency to look upon him more and more as an article of property by the theory of the law of nature; and hence it is that, wherever servitude is sanctioned by institutions which have been deeply affected by roman jurisprudence, the servile condition is never intolerably wretched. there is a great deal of evidence that in those american states which have taken the highly romanised code of louisiana as the basis of their jurisprudence, the lot and prospects of the negro-population are better in many material respects than under institutions founded on the english common law, which, as recently interpreted, has no true place for the slave, and can only therefore regard him as a chattel. we have now examined all parts of the ancient law of persons which fall within the scope of this treatise, and the result of the inquiry is, i trust, to give additional definiteness and precision to our view of the infancy of jurisprudence. the civil laws of states first make their appearance as the themistes of a patriarchal sovereign, and we can now see that these themistes are probably only a developed form of the irresponsible commands which, in a still earlier condition of the race, the head of each isolated household may have addressed to his wives, his children, and his slaves. but, even after the state has been organised, the laws have still an extremely limited application. whether they retain their primitive character as themistes, or whether they advance to the condition of customs or codified texts, they are binding not on individuals, but on families. ancient jurisprudence, if a perhaps deceptive comparison may be employed, may be likened to international law, filling nothing, as it were, excepting the interstices between the great groups which are the atoms of society. in a community so situated, the legislation of assemblies and the jurisdiction of courts reaches only to the heads of families, and to every other individual the rule of conduct is the law of his home, of which his parent is the legislator. but the sphere of civil law, small at first, tends steadily to enlarge itself. the agents of legal change, fictions, equity, and legislation, are brought in turn to bear on the primeval institutions, and at every point of the progress, a greater number of personal rights and a larger amount of property are removed from the domestic forum to the cognisance of the public tribunals. the ordinances of the government obtain gradually the same efficacy in private concerns as in matters of state, and are no longer liable to be overridden by the behests of a despot enthroned by each hearthstone. we have in the annals of roman law a nearly complete history of the crumbling away of an archaic system, and of the formation of new institutions from the recombined materials, institutions some of which descended unimpaired to the modern world, while others, destroyed or corrupted by contact with barbarism in the dark ages, had again to be recovered by mankind. when we leave this jurisprudence at the epoch of its final reconstruction by justinian, few traces of archaism can be discovered in any part of it except in the single article of the extensive powers still reserved to the living parent. everywhere else principles of convenience, or of symmetry, or of simplification--new principles at any rate--have usurped the authority of the jejune considerations which satisfied the conscience of ancient times. everywhere a new morality has displaced the canons of conduct and the reasons of acquiescence which were in unison with the ancient usages, because in fact they were born of them. the movement of the progressive societies has been uniform in one respect. through all its course it has been distinguished by the gradual dissolution of family dependency and the growth of individual obligation in its place. the individual is steadily substituted for the family, as the unit of which civil laws take account. the advance has been accomplished at varying rates of celerity, and there are societies not absolutely stationary in which the collapse of the ancient organisation can only be perceived by careful study of the phenomena they present. but, whatever its pace, the change has not been subject to reaction or recoil, and apparent retardations will be found to have been occasioned through the absorption of archaic ideas and customs from some entirely foreign source. nor is it difficult to see what is the tie between man and man which replaces by degrees those forms of reciprocity in rights and duties which have their origin in the family. it is contract. starting, as from one terminus of history, from a condition of society in which all the relations of persons are summed up in the relations of family, we seem to have steadily moved towards a phase of social order in which all these relations arise from the free agreement of individuals. in western europe the progress achieved in this direction has been considerable. thus the status of the slave has disappeared--it has been superseded by the contractual relation of the servant to his master. the status of the female under tutelage, if the tutelage be understood of persons other than her husband, has also ceased to exist; from her coming of age to her marriage all the relations she may form are relations of contract. so too the status of the son under power has no true place in law of modern european societies. if any civil obligation binds together the parent and the child of full age, it is one to which only contract gives its legal validity. the apparent exceptions are exceptions of that stamp which illustrate the rule. the child before years of discretion, the orphan under guardianship, the adjudged lunatic, have all their capacities and incapacities regulated by the law of persons. but why? the reason is differently expressed in the conventional language of different systems, but in substance it is stated to the same effect by all. the great majority of jurists are constant to the principle that the classes of persons just mentioned are subject to extrinsic control on the single ground that they do not possess the faculty of forming a judgment on their own interests; in other words, that they are wanting in the first essential of an engagement by contract. the word status may be usefully employed to construct a formula expressing the law of progress thus indicated, which, whatever be its value, seems to me to be sufficiently ascertained. all the forms of status taken notice of in the law of persons were derived from, and to some extent are still coloured by, the powers and privileges anciently residing in the family. if then we employ status, agreeably with the usage of the best writers, to signify these personal conditions only, and avoid applying the term to such conditions as are the immediate or remote result of agreement, we may say that the movement of the progressive societies has hitherto been a movement _from status to contract_. chapter vi the early history of testamentary succession if an attempt were made to demonstrate in england the superiority of the historical method of investigation to the modes of inquiry concerning jurisprudence which are in fashion among us, no department of law would better serve as an example than testaments or wills. its capabilities it owes to its great length and great continuity. at the beginning of its history we find ourselves in the very infancy of the social state, surrounded by conceptions which it requires some effort of mind to realise in their ancient form; while here, at the other extremity of its line of progress, we are in the midst of legal notions which are nothing more than those same conceptions disguised by the phraseology and by the habits of thought which belong to modern times, and exhibiting therefore a difficulty of another kind, the difficulty of believing that ideas which form part of our everyday mental stock can really stand in need of analysis and examination. the growth of the law of wills between these extreme points can be traced with remarkable distinctness. it was much less interrupted at the epoch of the birth of feudalism, than the history of most other branches of law. it is, indeed, true that, as regards all provinces of jurisprudence, the break caused by the division between ancient and modern history, or in other words by the dissolution of the roman empire, has been very greatly exaggerated. indolence has disinclined many writers to be at the pains of looking for threads of connection entangled and obscured by the confusions of six troubled centuries, while other inquirers, not naturally deficient in patience and industry, have been misled by idle pride in the legal system of their country, and by consequent unwillingness to confess its obligations to the jurisprudence of rome. but these unfavourable influences have had comparatively little effect on the province of testamentary law. the barbarians were confessedly strangers to any such conception as that of a will. the best authorities agree that there is no trace of it in those parts of their written codes which comprise the customs practised by them in their original seats, and in their subsequent settlements on the edge of the roman empire. but soon after they became mixed with the population of the roman provinces they appropriated from the imperial jurisprudence the conception of a will, at first in part, and afterwards in all its integrity. the influence of the church had much to do with this rapid assimilation. the ecclesiastical power had very early succeeded to those privileges of custody and registration of testaments which several of the heathen temples had enjoyed; and even thus early it was almost exclusively to private bequests that the religious foundations owed their temporal possessions. hence it is that the decrees of the earliest provincial councils perpetually contain anathemas against those who deny the sanctity of wills. here, in england, church influence was certainly chief among the causes which by universal acknowledgment have prevented that discontinuity in the history of testamentary law, which is sometimes believed to exist in the history of other provinces of jurisprudence. the jurisdiction over one class of wills was delegated to the ecclesiastical courts, which applied to them, though not always intelligently, the principles of roman jurisprudence; and, though neither the courts of common law nor the court of chancery owned any positive obligation to follow the ecclesiastical tribunals, they could not escape the potent influence of a system of settled rules in course of application by their side. the english law of testamentary succession to personalty has become a modified form of the dispensation under which the inheritances of roman citizens were administered. it is not difficult to point out the extreme difference of the conclusions forced on us by the historical treatment of the subject from those to which we are conducted when, without the help of history, we merely strive to analyse our _primâ facie_ impressions. i suppose there is nobody who, starting from the popular or even the legal conception of a will, would not imagine that certain qualities are necessarily attached to it. he would say, for example, that a will necessarily takes effect _at death only_--that it is _secret_, not known as a matter of course to persons taking interests under its provisions--that it is _revocable_, _i.e._ always capable of being superseded by a new act of testation. yet i shall be able to show that there was a time when none of these characteristics belonged to a will. the testaments from which our wills are directly descended at first took effect immediately on their execution; they were not secret; they were not revocable. few legal agencies are, in fact, the fruit of more complex historical agencies than that by which a man's written intentions control the posthumous disposition of his goods. testaments very slowly and gradually gathered round them the qualities i have mentioned; and they did this from causes and under pressure of events which may be called casual, or which at any rate have no interest for us at present, except so far as they have affected the history of law. at a time when legal theories were more abundant than at present--theories which, it is true, were for the most part gratuitous and premature enough, but which nevertheless rescued jurisprudence from that worse and more ignoble condition, not unknown to ourselves, in which nothing like a generalisation is aspired to, and law is regarded as a mere empirical pursuit--it was the fashion to explain the ready and apparently intuitive perception which we have of certain qualities in a will, by saying that they were natural to it, or, as the phrase would run in full, attached to it by the law of nature. nobody, i imagine, would affect to maintain such a doctrine, when once it was ascertained that all these characteristics had their origin within historical memory; at the same time, vestiges of the theory of which the doctrine is an offshoot, linger in forms of expression which we all of us use and perhaps scarcely know how to dispense with. i may illustrate this by mentioning a position common in the legal literature of the seventeenth century. the jurists of that period very commonly assert that the power of testation itself is of natural law, that it is a right conferred by the law of nature. their teaching, though all persons may not at once see the connection, is in substance followed by those who affirm that the right of dictating or controlling the posthumous disposal of property is a necessary or natural consequence of the proprietary rights themselves. and every student of technical jurisprudence must have come across the same view, clothed in the language of a rather different school, which, in its rationale of this department of law, treats succession _ex testamento_ as the mode of devolution which the property of deceased persons ought primarily to follow, and then proceeds to account for succession _ab intestato_ as the incidental provision of the lawgiver for the discharge of a function which was only left unperformed through the neglect or misfortune of the deceased proprietor. these opinions are only expanded forms of the more compendious doctrine that testamentary disposition is an institution of the law of nature. it is certainly never quite safe to pronounce dogmatically as to the range of association embraced by modern minds, when they reflect on nature and her law; but i believe that most persons, who affirm that the testamentary power is of natural law, may be taken to imply either that, as a matter of fact, it is universal, or that nations are prompted to sanction it by an original instinct and impulse. with respect to the first of these positions, i think that, when explicitly set forth, it can never be seriously contended for in an age which has seen the severe restraints imposed on the testamentary power by the _code napoléon_, and has witnessed the steady multiplication of systems for which the french codes have served as a model. to the second assertion we must object that it is contrary to the best-ascertained facts in the early history of law, and i venture to affirm generally that, in all indigenous societies, a condition of jurisprudence in which testamentary privileges are _not_ allowed, or rather not contemplated, has preceded that later stage of legal development in which the mere will of the proprietor is permitted under more or less of restriction to override the claims of his kindred in blood. the conception of a will or testament cannot be considered by itself. it is a member, and not the first, of a series of conceptions. in itself a will is simply the instrument by which the intention of the testator is declared. it must be clear, i think, that before such an instrument takes its turn for discussion, there are several preliminary points to be examined--as, for example, what is it, what sort of right or interest, which passes from a dead man on his decease? to whom and in what form does it pass? and how came it that the dead were allowed to control the posthumous disposition of their property? thrown into technical language, the dependence of the various conceptions which contribute to the notion of a will is thus expressed. a will or testament is an instrument by which the devolution of an inheritance is prescribed. inheritance is a form of universal succession. a universal succession is a succession to a _universitas juris_, or university of rights and duties. inverting this order we have therefore to inquire what is a _universitas juris_; what is a universal succession; what is the form of universal succession which is called an inheritance? and there are also two further questions, independent to some extent of the points i have mooted, but demanding solution before the subject of wills can be exhausted. these are, how came an inheritance to be controlled in any case by the testator's volition, and what is the nature of the instrument by which it came to be controlled? the first question relates to the _universitas juris_; that is, a university (or bundle) of rights and duties. a _universitas juris_ is a collection of rights and duties united by the single circumstance of their having belonged at one time to some one person. it is, as it were, the legal clothing of some given individual. it is not formed by grouping together _any_ rights and _any_ duties. it can only be constituted by taking all the rights and all the duties of a particular person. the tie which so connects a number of rights of property, rights of way, rights to legacies, duties of specific performance, debts, obligations to compensate wrongs--which so connects all these legal privileges and duties together as to constitute them a _universitas juris_, is the _fact_ of their having attached to some individual capable of exercising them. without this _fact_ there is no university of rights and duties. the expression _universitas juris_ is not classical, but for the notion jurisprudence is exclusively indebted to roman law; nor is it at all difficult to seize. we must endeavour to collect under one conception the whole set of legal relations in which each one of us stands to the rest of the world. these, whatever be their character and composition, make up together a _universitas juris_; and there is but little danger of mistake in forming the notion, if we are only careful to remember that duties enter into it quite as much as rights. our duties may overbalance our rights. a man may owe more than he is worth, and therefore if a money value is set on his collective legal relations he may be what is called insolvent. but for all that the entire group of rights and duties which centres in him is not the less a "juris universitas." we come next to a "universal succession." a universal succession is a succession to a _universitas juris_. it occurs when one man is invested with the legal clothing of another, becoming at the same moment subject to all his liabilities and entitled to all his rights. in order that the universal succession may be true and perfect, the devolution must take place _uno ictu_, as the jurists phrase it. it is of course possible to conceive one man acquiring the whole of the rights and duties of another at different periods, as for example by successive purchases; or he might acquire them in different capacities, part as heir, part as purchaser, part as legatee. but though the group of rights and duties thus made up should in fact amount to the whole legal personality of a particular individual, the acquisition would not be a universal succession. in order that there may be a true universal succession, the transmission must be such as to pass the whole aggregate of rights and duties at the _same_ moment and in virtue of the _same_ legal capacity in the recipient. the notion of a universal succession, like that of a juris universitas, is permanent in jurisprudence, though in the english legal system it is obscured by the great variety of capacities in which rights are acquired, and, above all, by the distinction between the two great provinces of english property, "realty" and "personalty." the succession of an assignee in bankruptcy to the entire property of the bankrupt is, however, a universal succession, though as the assignee only pays debts to the extent of the assets, this is only a modified form of the primary notion. were it common among us for persons to take assignments of _all_ a man's property on condition of paying _all_ his debts, such transfers would exactly resemble the universal successions known to the oldest roman law. when a roman citizen _adrogated_ a son, _i.e._ took a man, not already under patria potestas, as his adoptive child, he succeeded _universally_ to the adoptive child's estate, _i.e._ he took all the property and became liable for all the obligations. several other forms of universal succession appear in the primitive roman law, but infinitely the most important and the most durable of all was that one with which we are more immediately concerned, hæreditas or inheritance. inheritance was a universal succession occurring at a death. the universal successor was hæres or heir. he stepped at once into all the rights and all the duties of the dead man. he was instantly clothed with his entire legal person, and i need scarcely add that the special character of the hæres remained the same, whether he was named by a will or whether he took on an intestacy. the term hæres is no more emphatically used of the intestate than of the testamentary heir, for the manner in which a man became hæres had nothing to do with the legal character he sustained. the dead man's universal successor, however he became so, whether by will or by intestacy, was his heir. but the heir was not necessarily a single person. a group of persons considered in law as a single unit, might succeed as _co-heirs_ to the inheritance. let me now quote the usual roman definition of an inheritance. the reader will be in a position to appreciate the full force of the separate terms. _hæreditas est successio in universum jus quod defunctus habuit_ ("an inheritance is a succession to the entire legal position of a deceased man"). the notion was that, though the physical person of the deceased had perished, his legal personality survived and descended unimpaired on his heir or co-heirs, in whom his identity (so far as the law was concerned) was continued. our own law, in constituting the executor or administrator the representative of the deceased to the extent of his personal assets, may serve as an illustration of the theory from which it emanated, but, although it illustrates, it does not explain it. the view of even the later roman law required a closeness of correspondence between the position of the deceased and of his heir which is no feature of an english representation; and in the primitive jurisprudence everything turned on the continuity of succession. unless provision was made in the will for the instant devolution of the testator's rights and duties on the heir or co-heirs, the testament lost all its effect. in modern testamentary jurisprudence, as in the later roman law, the object of first importance is the execution of the testator's intentions. in the ancient law of rome the subject of corresponding carefulness was the bestowal of the universal succession. one of these rules seems to our eyes a principle dictated by common sense, while the other looks very much like an idle crotchet. yet that without the second of them the first would never have come into being is as certain as any proposition of the kind can be. in order to solve this apparent paradox, and to bring into greater clearness the train of ideas which i have been endeavouring to indicate, i must borrow the results of the inquiry which was attempted in the earlier portion of the preceding chapter. we saw one peculiarity invariably distinguishing the infancy of society. men are regarded and treated, not as individuals, but always as members of a particular group. everybody is first a citizen, and then, as a citizen, he is a member of his order--of an aristocracy or a democracy, of an order of patricians or plebeians; or, in those societies which an unhappy fate has afflicted with a special perversion in their course of development, of a caste. next, he is a member of a gens, house, or clan; and lastly, he is a member of his _family_. this last was the narrowest and most personal relation in which he stood; nor, paradoxical as it may seem, was he ever regarded as _himself_, as a distinct individual. his individuality was swallowed up in his family. i repeat the definition of a primitive society given before. it has for its units, not individuals, but groups of men united by the reality or the fiction of blood-relationship. it is in the peculiarities of an undeveloped society that we seize the first trace of a universal succession. contrasted with the organisation of a modern state, the commonwealths of primitive times may be fairly described as consisting of a number of little despotic governments, each perfectly distinct from the rest, each absolutely controlled by the prerogative of a single monarch. but though the patriarch, for we must not yet call him the pater-familias, had rights thus extensive, it is impossible to doubt that he lay under an equal amplitude of obligations. if he governed the family, it was for its behoof. if he was lord of its possessions, he held them as trustee for his children and kindred. he had no privilege or position distinct from that conferred on him by his relation to the petty commonwealth which he governed. the family, in fact, was a corporation; and he was its representative or, we might almost say, its public officer. he enjoyed rights and stood under duties, but the rights and the duties were, in the contemplation of his fellow-citizens and in the eye of the law, quite as much those of the collective body as his own. let us consider for a moment the effect which would be produced by the death of such a representative. in the eye of the law, in the view of the civil magistrate, the demise of the domestic authority would be a perfectly immaterial event. the person representing the collective body of the family and primarily responsible to municipal jurisdiction would bear a different name; and that would be all. the rights and obligations which attached to the deceased head of the house would attach, without breach of continuity, to his successor; for, in point of fact, they would be the rights and obligations of the family, and the family had the distinctive characteristic of a corporation--that it never died. creditors would have the same remedies against the new chieftain as against the old, for the liability being that of the still existing family would be absolutely unchanged. all rights available to the family would be as available after the demise of the headship as before it--except that the corporation would be obliged--if indeed language so precise and technical can be properly used of these early times--would be obliged to _sue_ under a slightly modified name. the history of jurisprudence must be followed in its whole course, if we are to understand how gradually and tardily society dissolved itself into the component atoms of which it is now constituted--by what insensible gradations the relation of man to man substituted itself for the relation of the individual to his family and of families to each other. the point now to be attended to is that even when the revolution had apparently quite accomplished itself, even when the magistrate had in great measure assumed the place of the pater-familias, and the civil tribunal substituted itself for the domestic forum, nevertheless the whole scheme of rights and duties administered by the judicial authorities remained shaped by the influence of the obsolete privileges and coloured in every part by their reflection. there seems little question that the devolution of the universitas juris, so strenuously insisted upon by the roman law as the first condition of a testamentary or intestate succession, was a feature of the older form of society which men's minds had been unable to dissociate from the new, though with that newer phase it had no true or proper connection. it seems, in truth, that the prolongation of a man's legal existence in his heir, or in a group of co-heirs, is neither more nor less than a characteristic of _the family_ transferred by a fiction to _the individual_. succession in corporations is necessarily universal, and the family was a corporation. corporations never die. the decease of individual members makes no difference to the collective existence of the aggregate body, and does not in any way affect its legal incidents, its faculties or liabilities. now in the idea of a roman universal succession all these qualities of a corporation seem to have been transferred to the individual citizen. his physical death is allowed to exercise no effect on the legal position which he filled, apparently on the principle that that position is to be adjusted as closely as possible to the analogies of a family, which, in its corporate character, was not of course liable to physical extinction. i observe that not a few continental jurists have much difficulty in comprehending the nature of the connection between the conceptions blended in a universal succession, and there is perhaps no topic in the philosophy of jurisprudence on which their speculations, as a general rule, possess so little value. but the student of english law ought to be in no danger of stumbling at the analysis of the idea which we are examining. much light is cast upon it by a fiction in our own system with which all lawyers are familiar. english lawyers classify corporations as corporations aggregate and corporations sole. a corporation aggregate is a true corporation, but a corporation sole is an individual, being a member of a series of individuals, who is invested by a fiction with the qualities of a corporation. i need hardly cite the king or the parson of a parish as instances of corporations sole. the capacity or office is here considered apart from the particular person who from time to time may occupy it, and, this capacity being perpetual, the series of individuals who fill it are clothed with the leading attribute of corporations--perpetuity. now in the older theory of roman law the individual bore to the family precisely the same relation which in the rationale of english jurisprudence a corporation sole bears to a corporation aggregate. the derivation and association of ideas are exactly the same. in fact, if we say to ourselves that for purposes of roman testamentary jurisprudence each individual citizen was a corporation sole, we shall not only realise the full conception of an inheritance, but have constantly at command the clue to the assumption in which it originated. it is an axiom with us that the king never dies, being a corporation sole. his capacities are instantly filled by his successor, and the continuity of dominion is not deemed to have been interrupted. with the romans it seemed an equally simple and natural process, to eliminate the fact of death from the devolution of rights and obligations. the testator lived on in his heir or in the group of his co-heirs. he was in law the same person with them, and if any one in his testamentary dispositions had even constructively violated the principle which united his actual and his posthumous existence, the law rejected the defective instrument, and gave the inheritance to the kindred in blood, whose capacity to fulfil the conditions of heirship was conferred on them by the law itself, and not by any document which by possibility might be erroneously framed. when a roman citizen died intestate or leaving no valid will, his descendants or kindred became his heirs according to a scale which will be presently described. the person or class of persons who succeeded did not simply _represent_ the deceased, but, in conformity with the theory just delineated, they _continued_ his civil life, his legal existence. the same results followed when the order of succession was determined by a will, but the theory of the identity between the dead man and his heirs was certainly much older than any form of testament or phase of testamentary jurisprudence. this indeed is the proper moment for suggesting a doubt which will press on us with greater force the further we plumb the depths of this subject,--whether _wills_ would ever have come into being at all if it had not been for these remarkable ideas connected with universal succession. testamentary law is the application of a principle which may be explained on a variety of philosophical hypotheses as plausible as they are gratuitous; it is interwoven with every part of modern society, and it is defensible on the broadest grounds of general expediency. but the warning can never be too often repeated, that the grand source of mistake in questions of jurisprudence is the impression that those reasons which actuate us at the present moment, in the maintenance of an existing institution, have necessarily anything in common with the sentiment in which the institution originated. it is certain that, in the old roman law of inheritance, the notion of a will or testament is inextricably mixed up, i might almost say confounded, with the theory of a man's posthumous existence in the person of his heir. the conception of a universal succession, firmly as it has taken root in jurisprudence, has not occurred spontaneously to the framers of every body of laws. wherever it is now found, it may be shown to have descended from roman law; and with it have come down a host of legal rules on the subject of testaments and testamentary gifts, which modern practitioners apply without discerning their relation to the parent theory. but, in the pure roman jurisprudence, the principle that a man lives on in his heir--the elimination, if we may so speak, of the fact of death--is too obviously for mistake the centre round which the whole law of testamentary and intestate succession is circling. the unflinching sternness of the roman law in enforcing compliance with the governing theory would in itself suggest that the theory grew out of something in the primitive constitution of roman society; but we may push the proof a good way beyond the presumption. it happens that several technical expressions, dating from the earliest institution of wills at rome, have been accidentally preserved to us. we have in gaius the formula of investiture by which the universal successor was created. we have the ancient name by which the person afterwards called heir was at first designated. we have further the text of the celebrated clause in the twelve tables by which the testamentary power was expressly recognised, and the clauses regulating intestate succession have also been preserved. all these archaic phrases have one salient peculiarity. they indicate that what passed from the testator to the heir was the _family_, that is, the aggregate of rights and duties contained in the patria potestas and growing out of it. the material property is in three instances not mentioned at all; in two others, it is visibly named as an adjunct or appendage of the family. the original will or testament was therefore an instrument, or (for it was probably not at first in writing) a proceeding, by which the devolution of the _family_ was regulated. it was a mode of declaring who was to have the chieftainship, in succession to the testator. when wills are understood to have this for their original object, we see at once how it is that they came to be connected with one of the most curious relics of ancient religion and law, the _sacra_, or family rites. these _sacra_ were the roman form of an institution which shows itself wherever society has not wholly shaken itself free from its primitive clothing. they are the sacrifices and ceremonies by which the brotherhood of the family is commemorated, the pledge and the witness of its perpetuity. whatever be their nature,--whether it be true or not that in all cases they are the worship of some mythical ancestor,--they are everywhere employed to attest the sacredness of the family-relation; and therefore they acquire prominent significance and importance, whenever the continuous existence of the family is endangered by a change in the person of its chief. accordingly we hear most about them in connection with demises of domestic sovereignty. among the hindoos, the right to inherit a dead man's property is exactly co-extensive with the duty of performing his obsequies. if the rites are not properly performed or not performed by the proper person, no relation is considered as established between the deceased and anybody surviving him; the law of succession does not apply, and nobody can inherit the property. every great event in the life of a hindoo seems to be regarded as leading up to and bearing upon those solemnities. if he marries, it is to have children who may celebrate them after his death; if he has no children, he lies under the strongest obligation to adopt them from another family, "with a view," writes the hindoo doctor, "to the funeral cake, the water, and the solemn sacrifice." the sphere preserved to the roman _sacra_ in the time of cicero, was not less in extent. it embraced inheritances and adoptions. no adoption was allowed to take place without due provision for the _sacra_ of the family from which the adoptive son was transferred, and no testament was allowed to distribute an inheritance without a strict apportionment of the expenses of these ceremonies among the different co-heirs. the differences between the roman law at this epoch, when we obtain our last glimpse of the _sacra_, and the existing hindoo system, are most instructive. among the hindoos, the religious element in law has acquired a complete predominance. family sacrifices have become the keystone of all the law of persons and much of the law of things. they have even received a monstrous extension, for it is a plausible opinion that the self-immolation of the widow at her husband's funeral, a practice continued to historical times by the hindoos, and commemorated in the traditions of several indo-european races, was an addition grafted on the primitive _sacra_, under the influence of the impression, which always accompanies the idea of sacrifice, that human blood is the most precious of all oblations. with the romans, on the contrary, the legal obligation and the religious duty have ceased to be blended. the necessity of solemnising the _sacra_ forms no part of the theory of civil law, but they are under the separate jurisdiction of the college of pontiffs. the letters of cicero to atticus, which are full of allusions to them, leave no doubt that they constituted an intolerable burden on inheritances; but the point of development at which law breaks away from religion has been passed, and we are prepared for their entire disappearance from the later jurisprudence. in hindoo law there is no such thing as a true will. the place filled by wills is occupied by adoptions. we can now see the relation of the testamentary power to the faculty of adoption, and the reason why the exercise of either of them could call up a peculiar solicitude for the performance of the _sacra_. both a will and an adoption threaten a distortion of the ordinary course of family descent, but they are obviously contrivances for preventing the descent being wholly interrupted, when there is no succession of kindred to carry it on. of the two expedients adoption, the factitious creation of blood-relationship, is the only one which has suggested itself to the greater part of archaic societies. the hindoos have indeed advanced one point on what was doubtless the antique practice, by allowing the widow to adopt when the father has neglected to do so, and there are in the local customs of bengal some faint traces of the testamentary powers. but to the romans belongs pre-eminently the credit of inventing the will, the institution which, next to the contract, has exercised the greatest influence in transforming human society. we must be careful not to attribute to it in its earliest shape the functions which have attended it in more recent times. it was at first, not a mode of distributing a dead man's goods, but one among several ways of transferring the representation of the household to a new chief. the goods descend no doubt to the heir, but that is only because the government of the family carries with it in its devolution the power of disposing of the common stock. we are very far as yet from that stage in the history of wills in which they become powerful instruments in modifying society through the stimulus they give to the circulation of property and the plasticity they produce in proprietary rights. no such consequences as these appear in fact to have been associated with the testamentary power even by the latest roman lawyers. it will be found that wills were never looked upon in the roman community as a contrivance for parting property and the family, or for creating a variety of miscellaneous interests, but rather as a means of making a better provision for the members of a household than could be secured through the rules of intestate succession. we may suspect indeed that the associations of a roman with the practice of will-making were extremely different from those familiar to us nowadays. the habit of regarding adoption and testation as modes of continuing the family cannot but have had something to do with the singular laxity of roman notions as to the inheritance of sovereignty. it is impossible not to see that the succession of the early roman emperors to each other was considered reasonably regular, and that, in spite of all that had occurred, no absurdity attached to the pretension of such princes as theodosius or justinian to style themselves cæsar and augustus. when the phenomena of primitive societies emerge into light, it seems impossible to dispute a proposition which the jurists of the seventeenth century considered doubtful, that intestate inheritance is a more ancient institution than testamentary succession. as soon as this is settled, a question of much interest suggests itself, how and under what conditions were the directions of a will first allowed to regulate the devolution of authority over the household, and consequently the posthumous distribution of property. the difficulty of deciding the point arises from the rarity of testamentary power in archaic communities. it is doubtful whether a true power of testation was known to any original society except the roman. rudimentary forms of it occur here and there, but most of them are not exempt from the suspicion of a roman origin. the athenian will was, no doubt, indigenous, but then, as will appear presently, it was only an inchoate testament. as to the wills which are sanctioned by the bodies of law which have descended to us as the codes of the barbarian conquerors of imperial rome, they are almost certainly roman. the most penetrating german criticism has recently been directed to these _leges barbarorum_, the great object of investigation being to detach those portions of each system which formed the customs of the tribe in its original home from the adventitious ingredients which were borrowed from the laws of the romans. in the course of this process, one result has invariably disclosed itself, that the ancient nucleus of the code contains no trace of a will. whatever testamentary law exists, has been taken from roman jurisprudence. similarly, the rudimentary testament which (as i am informed) the rabbinical jewish law provides for, has been attributed to contact with the romans. the only form of testament, not belonging to a roman or hellenic society, which can reasonably be supposed indigenous, is that recognised by the usages of the province of bengal; and the testament of bengal is only a rudimentary will. the evidence, however, such as it is, seems to point to the conclusion that testaments are at first only allowed to take effect on failure of the persons entitled to have the inheritance by right of blood genuine or fictitious. thus, when athenian citizens were empowered for the first time by the laws of solon to execute testaments, they were forbidden to disinherit their direct male descendants. so, too, the will of bengal is only permitted to govern the succession so far as it is consistent with certain overriding claims of the family. again, the original institutions of the jews having provided nowhere for the privileges of testatorship, the later rabbinical jurisprudence, which pretends to supply the _casus omissi_ of the mosaic law, allows the power of testation to attach when all the kindred entitled under the mosaic system to succeed have failed or are undiscoverable. the limitations by which the ancient german codes hedge in the testamentary jurisprudence which has been incorporated with them are also significant, and point in the same direction. it is the peculiarity of most of these german laws, in the only shape in which we know them, that, besides the _allod_ or domain of each household, they recognise several subordinate kinds or orders of property, each of which probably represents a separate transfusion of roman principles into the primitive body of teutonic usage. the primitive german or allodial property is strictly reserved to the kindred. not only is it incapable of being disposed of by testament but it is scarcely capable of being alienated by conveyance _inter vivos_. the ancient german law, like the hindoo jurisprudence, makes the male children co-proprietors with their father, and the endowment of the family cannot be parted with except by the consent of all its members. but the other sorts of property, of more modern origin and lower dignity than the allodial possessions, are much more easily alienated than they, and follow much more lenient rules of devolution. women and the descendants of women succeed to them, obviously on the principle that they lie outside the sacred precinct of the agnatic brotherhood. now, it is on these last descriptions of property, and on these only, that the testaments borrowed from rome were at first allowed to operate. these few indications may serve to lend additional plausibility to that which in itself appears to be the most probable explanation of an ascertained fact in the early history of roman wills. we have it stated on abundant authority that testaments, during the primitive period of the roman state, were executed in the comitia calata, that is, in the comitia curiata, or parliament of the patrician burghers of rome, when assembled for private business. this mode of execution has been the source of the assertion, handed down by one generation of civilians to another, that every will at one era of roman history was a solemn legislative enactment. but there is no necessity whatever for resorting to an explanation which has the defect of attributing far too much precision to the proceedings of the ancient assembly. the proper key to the story concerning the execution of wills in the comitia calata must no doubt be sought in the oldest roman law of _intestate_ succession. the canons of primitive roman jurisprudence regulating the inheritance of relations from each other were, so long as they remained unmodified by the edictal law of the prætor, to the following effect:--first, the _sui_ or direct descendants who had never been emancipated succeeded. on the failure of the _sui_, the nearest agnate came into their place, that is, the nearest person or class of the kindred who was or might have been under the same patria potestas with the deceased. the third and last degree came next, in which the inheritance devolved on the _gentiles_, that is on the collective members of the dead man's _gens_ or _house_. the house, i have explained already, was a fictitious extension of the family, consisting of all roman patrician citizens who bore the same name, and who, on the ground of bearing the same name, were supposed to be descended from a common ancestor. now the patrician assembly called the comitia curiata was a legislature in which gentes or houses were exclusively represented. it was a representative assembly of the roman people, constituted on the assumption that the constituent unit of the state was the gens. this being so, the inference seems inevitable, that the cognizance of wills by the comitia was connected with the rights of the gentiles, and was intended to secure them in their privilege of ultimate inheritance. the whole apparent anomaly is removed, if we suppose that a testament could only be made when the testator had no _gentiles_ discoverable, or when they waived their claims, and that every testament was submitted to the general assembly of the roman gentes, in order that those aggrieved by its dispositions might put their veto upon it if they pleased, or by allowing it to pass might be presumed to have renounced their reversion. it is possible that on the eve of the publication of the twelve tables this vetoing power may have been greatly curtailed or only occasionally and capriciously exercised. it is much easier, however, to indicate the meaning and origin of the jurisdiction confided to the comitia calata, than to trace its gradual development or progressive decay. the testament to which the pedigree of all modern wills may be traced is not, however, the testament executed in the calata comitia, but another testament designed to compete with it and destined to supersede it. the historical importance of this early roman will, and the light it casts on much of ancient thought, will excuse me for describing it at some length. when the testamentary power first discloses itself to us in legal history, there are signs that, like almost all the great roman institutions, it was the subject of contention between the patricians and the plebeians. the effect of the political maxim, _plebs gentem non habet_, "a plebeian cannot be a member of a house," was entirely to exclude the plebeians from the comitia curiata. some critics have accordingly supposed that a plebeian could not have his will read or recited to the patrician assembly, and was thus deprived of testamentary privileges altogether. others have been satisfied to point out the hardships of having to submit a proposed will to the unfriendly jurisdiction of an assembly in which the testator was not represented. whatever be the true view, a form of testament came into use, which has all the characteristics of a contrivance intended to evade some distasteful obligation. the will in question was a conveyance _inter vivos_, a complete and irrevocable alienation of the testator's family and substance to the person whom he meant to be his heir. the strict rules of roman law must always have permitted such an alienation, but, when the transaction was intended to have a posthumous effect, there may have been disputes whether it was valid for testamentary purposes without the formal assent of the patrician parliament. if a difference of opinion existed on the point between the two classes of the roman population, it was extinguished, with many other sources of heartburning, by the great decemviral compromise. the text of the twelve tables is still extant which says, "_pater familias uti de pecuniâ tutelâve rei suæ legâssit, ita jus esto_"--a law which can hardly have had any other object than the legalisation of the plebeian will. it is well known to scholars that, centuries after the patrician assembly had ceased to be the legislature of the roman state, it still continued to hold formal sittings for the convenience of private business. consequently, at a period long subsequent to the publication of the decemviral law, there is reason to believe that the comitia calata still assembled for the validation of testaments. its probable functions may be best indicated by saying that it was a court of registration, with the understanding however that the wills exhibited were not _enrolled_, but simply recited to the members, who were supposed to take note of their tenor and to commit them to memory. it is very likely that this form of testament was never reduced to writing at all, but at all events if the will had been originally written, the office of the comitia was certainly confined to hearing it read aloud, the document being retained afterwards in the custody of the testator, or deposited under the safeguard of some religious corporation. this publicity may have been one of the incidents of the testament executed in the comitia calata which brought it into popular disfavour. in the early years of the empire the comitia still held its meetings, but they seem to have lapsed into the merest form, and few wills, or none, were probably presented at the periodical sitting. it is the ancient plebeian will--the alternative of the testament just described--which in its remote effects has deeply modified the civilisation of the modern world. it acquired at rome all the popularity which the testament submitted to the calata comitia appears to have lost. the key to all its characteristics lies in its descent from the _mancipium_, or ancient roman conveyance, a proceeding to which we may unhesitatingly assign the parentage of two great institutions without which modern society can scarcely be supposed capable of holding together, the contract and the will. the _mancipium_, or as the word would exhibit itself in later latinity, the mancipation, carries us back by its incidents to the infancy of civil society. as it sprang from times long anterior, if not to the invention, at all events to the popularisation, of the art of writing, gestures, symbolical acts, and solemn phrases take the place of documentary forms, and a lengthy and intricate ceremonial is intended to call the attention of the parties to the importance of the transaction, and to impress it on the memory of the witnesses. the imperfection too of oral, as compared with written, testimony necessitates the multiplication of the witnesses and assistants beyond what in later times would be reasonable or intelligible limits. the roman mancipation required the presence first of all of the parties, the vendor and vendee, or we should perhaps rather say, if we are to use modern legal language, the grantor and grantee. there were also no less than _five_ witnesses; and an anomalous personage, the libripens, who brought with him a pair of scales to weigh the uncoined copper money of ancient rome. the testament we are considering--the testament _per æs et libram_, "with the copper and the scales," as it long continued to be technically called--was an ordinary mancipation with no change in the form and hardly any in words. the testator was the grantor; the five witnesses and the libripens were present; and the place of grantee was taken by a person known technically as the _familiæ emptor_, the purchaser of the family. the ordinary ceremony of a mancipation was then proceeded with. certain formal gestures were made and sentences pronounced. the _emptor familiæ_ simulated the payment of a price by striking the scales with a piece of money, and finally the testator ratified what had been done in a set form of words called the "nuncupatio" or publication of the transaction, a phrase which, i need scarcely remind the lawyer, has had a long history in testamentary jurisprudence. it is necessary to attend particularly to the character of the person called _familiæ emptor_. there is no doubt that at first he was the heir himself. the testator conveyed to him outright his whole "familia," that is, all the rights he enjoyed over and through the family; his property, his slaves, and all his ancestral privileges, together, on the other hand, with all his duties and obligations. with these data before us, we are able to note several remarkable points in which the mancipatory testament, as it may be called, differed in its primitive form from a modern will. as it amounted to a conveyance _out-and-out_ of the testator's estate, it was not _revocable_. there could be no new exercise of a power which had been exhausted. again, it was not secret. the familiæ emptor, being himself the heir, knew exactly what his rights were, and was aware that he was irreversibly entitled to the inheritance; a knowledge which the violences inseparable from the best-ordered ancient society rendered extremely dangerous. but perhaps the most surprising consequence of this relation of testaments to conveyances was the immediate vesting of the inheritance in the heir. this has seemed so incredible to not a few civilians, that they have spoken of the testator's estate as vesting conditionally on the testator's death or as granted to him from a time uncertain, _i.e._ the death of the grantor. but down to the latest period of roman jurisprudence there was a certain class of transactions which never admitted of being directly modified by a condition, or of being limited to or from a point of time. in technical language they did not admit _conditio_ or _dies_. mancipation was one of them, and therefore, strange as it may seem, we are forced to conclude that the primitive roman will took effect at once, even though the testator survived his act of testation. it is indeed likely that roman citizens originally made their wills only in the article of death, and that a provision for the continuance of the family effected by a man in the flower of life would take the form rather of an adoption than of a will. still we must believe that, if the testator did recover, he could only continue to govern his household by the sufferance of his heir. two or three remarks should be made before i explain how these inconveniences were remedied, and how testaments came to be invested with the characteristics now universally associated with them. the testament was not necessarily written: at first, it seems to have been invariably oral, and, even in later times, the instrument declaratory of the bequests was only incidentally connected with the will and formed no essential part of it. it bore in fact exactly the same relation to the testament, which the deed leading the uses bore to the fines and recoveries of old english law, or which the charter of feoffment bore to the feoffment itself. previously, indeed, to the twelve tables, no writing would have been of the slightest use, for the testator had no power of giving legacies, and the only persons who could be advantaged by a will were the heir or co-heirs. but the extreme generality of the clause in the twelve tables soon produced the doctrine that the heir must take the inheritance burdened by any directions which the testator might give him, or in other words, take it subject to legacies. written testamentary instruments assumed thereupon a new value, as a security against the fraudulent refusal of the heir to satisfy the legatees; but to the last it was at the testator's pleasure to rely exclusively on the testimony of the witnesses, and to declare by word of mouth the legacies which the _familiæ emptor_ was commissioned to pay. the terms of the expression _emptor familiæ_ demand notice. "emptor" indicates that the will was literally a sale, and the word "familiæ," when compared with the phraseology in the testamentary clause in the twelve tables, leads us to some instructive conclusions. "familia," in classical latinity, means always a man's slaves. here, however, and generally in the language of ancient roman law, it includes all persons under his potestas, and the testator's material property or substance is understood to pass as an adjunct or appendage of his household. turning to the law of the twelve tables, it will be seen that it speaks of _tutela rei suæ_, "the guardianship of his substance," a form of expression which is the exact reverse of the phrase just examined. there does not therefore appear to be any mode of escaping from the conclusion, that, even at an era so comparatively recent as that of the decemviral compromise, terms denoting "household" and "property" were blended in the current phraseology. if a man's household had been spoken of as his property we might have explained the expression as pointing to the extent of the patria potestas, but, as the interchange is reciprocal, we must allow that the form of speech carries us back to that primeval period in which property is owned by the family, and the family is governed by the citizen, so that the members of the community do not own their property _and_ their family, but rather own their property _through_ their family. at an epoch not easy to settle with precision, the roman prætors fell into the habit of acting upon testaments solemnised in closer conformity with the spirit than the letter of the law. casual dispensations became insensibly the established practice, till at length a wholly new form of will was matured and regularly engrafted on the edictal jurisprudence. the new or _prætorian_ testament derived the whole of its impregnability from the _jus honorarium_ or equity of rome. the prætor of some particular year must have inserted a clause in his inaugural proclamation declaratory of his intention to sustain all testaments which should have been executed with such and such solemnities; and, the reform having been found advantageous, the article relating to it must have been again introduced by the prætor's successor, and repeated by the next in office, till at length it formed a recognised portion of that body of jurisprudence which from these successive incorporations was styled the perpetual or continuous edict. on examining the conditions of a valid prætorian will they will be plainly seen to have been determined by the requirements of the mancipatory testament, the innovating prætor having obviously prescribed to himself the retention of the old formalities just so far as they were warrants of genuineness or securities against fraud. at the execution of the mancipatory testament seven persons had been present besides the testator. seven witnesses were accordingly essential to the prætorian will: two of them corresponding to the _libripens_ and _familiæ emptor_, who were now stripped of their symbolical character, and were merely present for the purpose of supplying their testimony. no emblematic ceremony was gone through; the will was merely recited; but then it is probable (though not absolutely certain) that a written instrument was necessary to perpetuate the evidence of the testator's dispositions. at all events, whenever a writing was read or exhibited as a person's last will, we know certainly that the prætorian court would not sustain it by special intervention, unless each of the seven witnesses had severally affixed his seal to the outside. this is the first appearance of _sealing_ in the history of jurisprudence, considered as a mode of authentication. it is to be observed that the seals of roman wills, and other documents of importance, did not simply serve as the index of the presence or assent of the signatory, but were literally fastenings which had to be broken before the writing could be inspected. the edictal law would therefore enforce the dispositions of a testator, when, instead of being symbolised through the forms of mancipation, they were simply evidenced by the seals of seven witnesses. but it may be laid down as a general proposition, that the principal qualities of roman property were incommunicable except through processes which were supposed to be coeval with the origin of the civil law. the prætor therefore could not confer an _inheritance_ on anybody. he could not place the heir or co-heirs in that very relation in which the testator had himself stood to his own rights and obligations. all he could do was to confer on the person designated as heir the practical enjoyment of the property bequeathed, and to give the force of legal acquittances to his payments of the testator's debts. when he exerted his powers to these ends, the prætor was technically said to communicate the _bonorum possessio_. the heir specially inducted under these circumstances, or _bonorum possessor_, had every proprietary privilege of the heir by the civil law. he took the profits and he could alienate, but then, for all his remedies for redress against wrong, he must go, as we should phrase it, not to the common law, but to the equity side of the prætorian court. no great chance of error would be incurred by describing him as having an _equitable_ estate in the inheritance; but then, to secure ourselves against being deluded by the analogy, we must always recollect that in one year the _bonorum possessio_ was operated upon a principle of roman law known as usucapion, and the possessor became quiritarian owner of all the property comprised in the inheritance. we know too little of the older law of civil process to be able to strike the balance of advantage and disadvantage between the different classes of remedies supplied by the prætorian tribunal. it is certain, however, that, in spite of its many defects, the mancipatory testament by which the _universitas juris_ devolved at once and unimpaired was never entirely superseded by the new will; and at a period less bigoted to antiquarian forms, and perhaps not quite alive to their significance, all the ingenuity of the jurisconsults seems to have been expended on the improvement of the more venerable instrument. at the era of gaius, which is that of the antonine cæsars, the great blemishes of the mancipatory will had been removed. originally, as we have seen, the essential character of the formalities had required that the heir himself should be the purchaser of the family, and the consequence was that he not only instantly acquired a vested interest in the testator's property, but was formally made aware of his rights. but the age of gaius permitted some unconcerned person to officiate as purchaser of the family. the heir, therefore, was not necessarily informed of the succession to which he was destined; and wills thenceforward acquired the property of _secrecy_. the substitution of a stranger for the actual heir in the functions of "familiæ emptor" had other ulterior consequences. as soon as it was legalised, a roman testament came to consist of two parts or stages--a conveyance, which was a pure form, and a nuncupatio, or publication. in this latter passage of the proceeding, the testator either orally declared to the assistants the wishes which were to be executed after his death, or produced a written document in which his wishes were embodied. it was not probably till attention had been quite drawn off from the imaginary conveyance, and concentrated on the nuncupation as the essential part of the transaction, that wills were allowed to become _revocable_. i have thus carried the pedigree of wills some way down in legal history. the root of it is the old testament "with the copper and the scales," founded on a mancipation or conveyance. this ancient will has, however, manifold defects, which are remedied, though only indirectly, by the prætorian law. meantime the ingenuity of the jurisconsults effects, in the common-law will or mancipatory testament, the very improvements which the prætor may have concurrently carried out in equity. these last ameliorations depend, however, on mere legal dexterity, and we see accordingly that the testamentary law of the day of gaius or ulpian is only transitional. what changes next ensued we know not; but at length, just before the reconstruction of the jurisprudence by justinian, we find the subjects of the eastern roman empire employing a form of will of which the pedigree is traceable to the prætorian testament on one side, and to the testament "with the copper and the scales" on the other. like the testament of the prætor, it required no mancipation, and was invalid unless sealed by seven witnesses. like the mancipatory will, it passed the inheritance and not merely a _bonorum possessio_. several, however, of its most important features were annexed by positive enactments, and it is out of regard to this threefold derivation from the prætorian edict, from the civil law, and from the imperial constitutions, that justinian speaks of the law of wills in his own day as _jus tripertitum_. the new testament thus described is the one generally known as the roman will. but it was the will of the eastern empire only; and the researches of savigny have shown that in western europe the old mancipatory testament, with all its apparatus of conveyance, copper, and scales, continued to be the form in use far down in the middle ages. chapter vii ancient and modern ideas respecting wills and successions although there is much in the modern european law of wills which is intimately connected with the oldest rules of testamentary disposition practised among men, there are nevertheless some important differences between ancient and modern ideas on the subject of wills and successions. some of the points of difference i shall endeavour to illustrate in this chapter. at a period, removed several centuries from the era of the twelve tables, we find a variety of rules engrafted on the roman civil law with the view of limiting the disinherison of children; we have the jurisdiction of the prætor very actively exerted in the same interest; and we are also presented with a new remedy, very anomalous in character and of uncertain origin, called the querela inofficiosi testamenti, "the plaint of an unduteous will," directed to the reinstatement of the issue in inheritances from which they had been unjustifiably excluded by a father's testament. comparing this condition of the law with the text of the twelve tables which concedes in terms the utmost liberty of testation, several writers have been tempted to interweave a good deal of dramatic incident into their history of the law testamentary. they tell us of the boundless license of disinherison in which the heads of families instantly began to indulge, of the scandal and injury to public morals which the new practices engendered, and of the applause of all good men which hailed the courage of the prætor in arresting the progress of paternal depravity. this story, which is not without some foundation for the principal fact it relates, is often so told as to disclose very serious misconceptions of the principles of legal history. the law of the twelve tables is to be explained by the character of the age in which it was enacted. it does not license a tendency which a later era thought itself bound to counteract, but it proceeds on the assumption that no such tendency exists, or, perhaps we should say, in ignorance of the possibility of its existence. there is no likelihood that roman citizens began immediately to avail themselves freely of the power to disinherit. it is against all reason and sound appreciation of history to suppose that the yoke of family bondage, still patiently submitted to, as we know, where its pressure galled most cruelly, would be cast off in the very particular in which its incidence in our own day is not otherwise than welcome. the law of the twelve tables permitted the execution of testaments in the only case in which it was thought possible that they could be executed, viz. on failure of children and proximate kindred. it did not forbid the disinherison of direct descendants, inasmuch as it did not legislate against a contingency which no roman lawgiver of that era could have contemplated. no doubt, as the offices of family affection progressively lost the aspect of primary personal duties, the disinherison of children was occasionally attempted. but the interference of the prætor, so far from being called for by the universality of the abuse, was doubtless first prompted by the fact that such instances of unnatural caprice were few and exceptional, and at conflict with the current morality. the indications furnished by this part of roman testamentary law are of a very different kind. it is remarkable that a will never seems to have been regarded by the romans as a means of _disinheriting_ a family, or of effecting the unequal distribution of a patrimony. the rules of law preventing its being turned to such a purpose, increase in number and stringency as the jurisprudence unfolds itself; and these rules correspond doubtless with the abiding sentiment of roman society, as distinguished from occasional variations of feeling in individuals. it would rather seem as if the testamentary power were chiefly valued for the assistance it gave in _making provision_ for a family, and in dividing the inheritance more evenly and fairly than the law of intestate succession would have divided it. if this be the true reading of the general sentiment on the point, it explains to some extent the singular horror of intestacy which always characterised the roman. no evil seems to have been considered a heavier visitation than the forfeiture of testamentary privileges; no curse appears to have been bitterer than that which imprecated on an enemy that he might die without a will. the feeling has no counterpart, or none that is easily recognisable, in the forms of opinion which exist at the present day. all men at all times will doubtless prefer chalking out the destination of their substance to having that office performed for them by the law; but the roman passion for testacy is distinguished from the mere desire to indulge caprice by its intensity; and it has of course nothing whatever in common with that pride of family, exclusively the creation of feudalism, which accumulates one description of property in the hands of a single representative. it is probable, _à priori_, that it was something in the rules of intestate succession which caused this vehement preference for the distribution of property under a testament over its distribution by law. the difficulty, however, is, that on glancing at the roman law of intestate succession, in the form which it wore for many centuries before justinian shaped it into that scheme of inheritance which has been almost universally adopted by modern lawgivers, it by no means strikes one as remarkably unreasonable or inequitable. on the contrary, the distribution it prescribes is so fair and rational, and differs so little from that with which modern society has been generally contented, that no reason suggests itself why it should have been regarded with extraordinary distaste, especially under a jurisprudence which pared down to a narrow compass the testamentary privileges of persons who had children to provide for. we should rather have expected that, as in france at this moment, the heads of families would generally save themselves the trouble of executing a will, and allow the law to do as it pleased with their assets. i think, however, if we look a little closely at the pre-justinianean scale of intestate succession, we shall discover the key to the mystery. the texture of the law consists of two distinct parts. one department of rules comes from the jus civile, the common-law of rome; the other from the edict of the prætor. the civil law, as i have already stated for another purpose, calls to the inheritance only three orders of successors in their turn; the unemancipated children, the nearest class of agnatic kindred, and the gentiles. between these three orders, the prætor interpolates various classes of relatives, of whom the civil law took no notice whatever. ultimately, the combination of the edict and of the civil law forms a table of succession not materially different from that which has descended to the generality of modern codes. the point for recollection is that there must anciently have been a time at which the rules of the civil law determined the scheme of intestate succession exclusively, and at which the arrangements of the edict were non-existent, or not consistently carried out. we cannot doubt that, in its infancy, the prætorian jurisprudence had to contend with formidable obstructions, and it is more than probable that, long after popular sentiment and legal opinion had acquiesced in it, the modifications which it periodically introduced were governed by no certain principles, and fluctuated with the varying bias of successive magistrates. the rules of intestate succession, which the romans must at this period have practised, account, i think--and more than account--for that vehement distaste for an intestacy to which roman society during so many ages remained constant. the order of succession was this: on the death of a citizen, having no will or no valid will, his unemancipated children became his heirs. his _emancipated_ sons had no share in the inheritance. if he left no direct descendants living at his death, the nearest grade of the agnatic kindred succeeded, but no part of the inheritance was given to any relative united (however closely) with the dead man through female descents. all the other branches of the family were excluded, and the inheritance escheated to the _gentiles_, or entire body of roman citizens bearing the same name with the deceased. so that on failing to execute an operative testament, a roman of the era under examination left his emancipated children absolutely without provision, while, on the assumption that he died childless, there was imminent risk that his possessions would escape from the family altogether, and devolve on a number of persons with whom he was merely connected by the sacerdotal fiction that assumed all members of the same _gens_ to be descended from a common ancestor. the prospect of such an issue is in itself a nearly sufficient explanation of the popular sentiment; but, in point of fact, we shall only half understand it, if we forget that the state of things i have been describing is likely to have existed at the very moment when roman society was in the first stage of its transition from its primitive organisation in detached families. the empire of the father had indeed received one of the earliest blows directed at it through the recognition of emancipation as a legitimate usage, but the law, still considering the patria potestas to be the root of family connection, persevered in looking on the emancipated children as strangers to the rights of kinship and aliens from the blood. we cannot, however, for a moment suppose that the limitations of the family imposed by legal pedantry had their counterpart in the natural affection of parents. family attachments must still have retained that nearly inconceivable sanctity and intensity which belonged to them under the patriarchal system; and, so little are they likely to have been extinguished by the act of emancipation, that the probabilities are altogether the other way. it may be unhesitatingly taken for granted that enfranchisement from the father's power was a demonstration, rather than a severance, of affection--a mark of grace and favour accorded to the best-beloved and most esteemed of the children. if sons thus honoured above the rest were absolutely deprived of their heritage by an intestacy, the reluctance to incur it requires no farther explanation. we might have assumed _à priori_ that the passion for testacy was generated by some moral injustice entailed by the rules of intestate succession; and here we find them at variance with the very instinct by which early society was cemented together. it is possible to put all that has been urged in a very succinct form. every dominant sentiment of the primitive romans was entwined with the relations of the family. but what was the family? the law defined it one way--natural affection another. in the conflict between the two, the feeling we would analyse grew up, taking the form of an enthusiasm for the institution by which the dictates of affection were permitted to determine the fortunes of its objects. i regard, therefore, the roman horror of intestacy as a monument of a very early conflict between ancient law and slowly changing ancient sentiment on the subject of the family. some passages in the roman statute-law, and one statute in particular which limited the capacity for inheritance possessed by women, must have contributed to keep alive the feeling; and it is the general belief that the system of creating fidei-commissa, or bequests in trust, was devised to evade the disabilities imposed by those statutes. but the feeling itself, in its remarkable intensity, seems to point back to some deeper antagonism between law and opinion; nor is it at all wonderful that the improvements of jurisprudence by the prætor should not have extinguished it. everybody conversant with the philosophy of opinion is aware that a sentiment by no means dies out, of necessity, with the passing away of the circumstances which produced it. it may long survive them; nay, it may afterwards attain to a pitch and climax of intensity which it never attained during their actual continuance. the view of a will which regards it as conferring the power of diverting property from the family, or of distributing it in such uneven proportions as the fancy or good sense of the testator may dictate, is not older than that later portion of the middle ages in which feudalism had completely consolidated itself. when modern jurisprudence first shows itself in the rough, wills are rarely allowed to dispose with absolute freedom of a dead man's assets. wherever at this period the descent of property was regulated by will--and over the greater part of europe moveable or personal property was the subject of testamentary disposition--the exercise of the testamentary power was seldom allowed to interfere with the right of the widow to a definite share, and of the children to certain fixed proportions, of the devolving inheritance. the shares of the children, as their amount shows, were determined by the authority of roman law. the provision for the widow was attributable to the exertions of the church, which never relaxed its solicitude for the interest of wives surviving their husbands--winning, perhaps, one of the most arduous of its triumphs when, after exacting for two or three centuries an express promise from the husband at marriage to endow his wife, it at length succeeded in engrafting the principle of dower on the customary law of all western europe. curiously enough, the dower of lands proved a more stable institution than the analogous and more ancient reservation of certain shares of the personal property to the widow and children. a few local customs in france maintained the right down to the revolution, and there are traces of similar usages in england; but on the whole the doctrine prevailed that moveables might be freely disposed of by will, and, even when the claims of the widow continued to be respected, the privileges of the children were obliterated from jurisprudence. we need not hesitate to attribute the change to the influence of primogeniture. as the feudal law of land practically disinherited all the children in favour of one, the equal distribution even of those sorts of property which might have been equally divided ceased to be viewed as a duty. testaments were the principal instruments employed in producing inequality, and in this condition of things originated the shade of difference which shows itself between the ancient and the modern conception of a will. but, though the liberty of bequest, enjoyed through testaments, was thus an accidental fruit of feudalism, there is no broader distinction than that which exists between a system of free testamentary disposition and a system, like that of the feudal land-law, under which property descends compulsorily in prescribed lines of devolution. this truth appears to have been lost sight of by the authors of the french codes. in the social fabric which they determined to destroy, they saw primogeniture resting chiefly on family settlements, but they also perceived that testaments were frequently employed to give the eldest son precisely the same preference which was reserved to him under the strictest of entails. in order, therefore, to make sure of their work, they not only rendered it impossible to prefer the eldest son to the rest in marriage-arrangements, but they almost expelled testamentary succession from the law, lest it should be used to defeat their fundamental principle of an equal distribution of property among children at the parent's death. the result is that they have established a system of small perpetual entails, which is infinitely nearer akin to the system of feudal europe than would be a perfect liberty of bequest. the land-law of england, "the herculaneum of feudalism," is certainly much more closely allied to the land-law of the middle ages than that of any continental country, and wills with us are frequently used to aid or imitate that preference of the eldest son and his line which is a nearly universal feature in marriage settlements of real property. but nevertheless feeling and opinion in this country have been profoundly affected by the practice of free testamentary disposition; and it appears to me that the state of sentiment in a great part of french society, on the subject of the conservation of property in families, is much liker that which prevailed through europe two or three centuries ago than are the current opinions of englishmen. the mention of primogeniture introduces one of the most difficult problems of historical jurisprudence. though i have not paused to explain my expressions, it may have been noticed that i have frequently spoken of a number of "co-heirs" as placed by the roman law of succession on the same footing with a single heir. in point of fact, we know of no period of roman jurisprudence at which the place of the heir, or universal successor, might not have been taken by a group of co-heirs. this group succeeded as a single unit, and the assets were afterwards divided among them in a separate legal proceeding. when the succession was _ab intestato_, and the group consisted of the children of the deceased, they each took an equal share of the property; nor, though males had at one time some advantages over females, is there the faintest trace of primogeniture. the mode of distribution is the same throughout archaic jurisprudence. it certainly seems that, when civil society begins and families cease to hold together through a series of generations, the idea which spontaneously suggests itself is to divide the domain equally among the members of each successive generation, and to reserve no privilege to the eldest son or stock. some peculiarly significant hints as to the close relation of this phenomenon to primitive thought are furnished by systems yet more archaic than the roman. among the hindoos, the instant a son is born, he acquires a vested right in his father's property, which cannot be sold without recognition of his joint ownership. on the son's attaining full age, he can sometimes compel a partition of the estate even against the consent of the parent; and, should the parent acquiesce, one son can always have a partition even against the will of the others. on such partition taking place, the father has no advantage over his children, except that he has two of the shares instead of one. the ancient law of the german tribes was exceedingly similar. the _allod_ or domain of the family was the joint-property of the father and his sons. it does not, however, appear to have been habitually divided even at the death of the parent, and in the same way the possessions of a hindoo, however divisible theoretically, are so rarely distributed in fact, that many generations constantly succeed each other without a partition taking place, and thus the family in india has a perpetual tendency to expand into the village community, under conditions which i shall hereafter attempt to elucidate. all this points very clearly to the absolutely equal division of assets among the male children at death as the practice most usual with society at the period when family-dependency is in the first stages of disintegration. here then emerges the historical difficulty of primogeniture. the more clearly we perceive that, when the feudal institutions were in process of formation, there was no source in the world whence they could derive their elements but the roman law of the provincials on the one hand and the archaic customs of the barbarians on the other, the more are we perplexed at first sight by our knowledge that neither roman nor barbarian was accustomed to give any preference to the eldest son or his line in the succession to property. primogeniture did not belong to the customs which the barbarians practised on their first establishment within the roman empire. it is known to have had its origin in the _benefices_ or beneficiary gifts of the invading chieftains. these benefices, which were occasionally conferred by the earlier immigrant kings, but were distributed on a great scale by charlemagne, were grants of roman provincial land to be holden by the beneficiary on condition of military service. the _allodial_ proprietors do not seem to have followed their sovereign on distant or difficult enterprises, and all the grander expeditions of the frankish chiefs and of charlemagne were accomplished with forces composed of soldiers either personally dependent on the royal house or compelled to serve it by the tenure of their land. the benefices, however, were not at first in any sense hereditary. they were held at the pleasure of the grantor, or at most for the life of the grantee; but still, from the very outset, no effort seems to have been spared by the beneficiaries to enlarge the tenure, and to continue their lands in their family after death. through the feebleness of charlemagne's successors these attempts were universally successful, and the benefice gradually transformed itself into the hereditary fief. but, though the fiefs were hereditary, they did not necessarily descend to the eldest son. the rules of succession which they followed were entirely determined by the terms agreed upon between the grantor and the beneficiary, or imposed by one of them on the weakness of the other. the original tenures were therefore extremely various; not indeed so capriciously various as is sometimes asserted, for all which have hitherto been described present some combination of the modes of succession familiar to romans and to barbarians, but still exceedingly miscellaneous. in some of them, the eldest son and his stock undoubtedly succeeded to the fief before the others, but such successions, so far from being universal, do not even appear to have been general. precisely the same phenomena recur during that more recent transmutation of european society which entirely substituted the feudal form of property for the domainial (or roman) and the allodial (or german). the allods were wholly absorbed by the fiefs. the greater allodial proprietors transformed themselves into feudal lords by conditional alienations of portions of their land to dependants; the smaller sought an escape from the oppressions of that terrible time by surrendering their property to some powerful chieftain, and receiving it back at his hands on condition of service in his wars. meantime, that vast mass of the population of western europe whose condition was servile or semi-servile--the roman and german personal slaves, the roman _coloni_ and the german _lidi_--were concurrently absorbed by the feudal organisation, a few of them assuming a menial relation to the lords, but the greater part receiving land on terms which in those centuries were considered degrading. the tenures created during this era of universal infeudation were as various as the conditions which the tenants made with their new chiefs or were forced to accept from them. as in the case of the benefices, the succession to some, but by no means to all, of the estates followed the rule of primogeniture. no sooner, however, has the feudal system prevailed throughout the west, than it becomes evident that primogeniture has some great advantage over every other mode of succession. it spread over europe with remarkable rapidity, the principal instrument of diffusion being family settlements, the pactes de famille of france and haus-gesetze of germany, which universally stipulated that lands held by knightly service should descend to the eldest son. ultimately the law resigned itself to follow inveterate practice, and we find that in all the bodies of customary law, which were gradually built up, the eldest son and stock are preferred in the succession to estates of which the tenure is free and military. as to lands held by servile tenures (and originally all tenures were servile which bound the tenant to pay money or bestow manual labour), the system of succession prescribed by custom differed greatly in different countries and different provinces. the more general rule was that such lands were divided equally at death among all the children, but still in some instances the eldest son was preferred, in some the youngest. but primogeniture usually governed the inheritance of that class of estates, in some respects the most important of all, which were held by tenures that, like the english socage, were of later origin than the rest, and were neither altogether free nor altogether servile. the diffusion of primogeniture is usually accounted for by assigning what are called feudal reasons for it. it is asserted that the feudal superior had a better security for the military service he required when the fief descended to a single person, instead of being distributed among a number on the decease of the last holder. without denying that this consideration may partially explain the favour gradually acquired by primogeniture, i must point out that primogeniture became a custom of europe much more through its popularity with the tenants than through any advantage it conferred on the lords. for its origin, moreover, the reason given does not account at all. nothing in law springs entirely from a sense of convenience. there are always certain ideas existing antecedently on which the sense of convenience works, and of which it can do no more than form some new combination; and to find these ideas in the present case is exactly the problem. a valuable hint is furnished to us from a quarter fruitful of such indications. although in india the possessions of a parent are divisible at his death, and may be divisible during his life, among all his male children in equal shares, and though this principle of the equal distribution of _property_ extends to every part of the hindoo institutions, yet wherever _public office_ or _political power_ devolves at the decease of the last incumbent, the succession is nearly universally according to the rules of primogeniture. sovereignties descend therefore to the eldest son, and where the affairs of the village community, the corporate unit of hindoo society, are confided to a single manager, it is generally the eldest son who takes up the administration at his parent's death. all offices, indeed, in india, tend to become hereditary, and, when their nature permits it, to vest in the eldest member of the oldest stock. comparing these indian successions with some of the ruder social organisations which have survived in europe almost to our own day, the conclusion suggests itself that, when patriarchal power is not only _domestic_ but _political_, it is not distributed among all the issue at the parent's death, but is the birthright of the eldest son. the chieftainship of a highland clan, for example, followed the order of primogeniture. there seems, in truth, to be a form of family-dependency still more archaic than any of those which we know from the primitive records of organised civil societies. the agnatic union of the kindred in ancient roman law, and a multitude of similar indications, point to a period at which all the ramifying branches of the family tree held together in one organic whole; and it is no presumptuous conjecture, that, when the corporation thus formed by the kindred was in itself an independent society, it was governed by the eldest male of the oldest line. it is true that we have no actual knowledge of any such society. even in the most elementary communities, family-organisations, as we know them, are at most _imperia in imperio_. but the position of some of them, of the celtic clans in particular, was sufficiently near independence within historical times to force on us the conviction that they were once separate _imperia_, and that primogeniture regulated the succession to the chieftainship. it is, however, necessary to be on our guard against modern associations with the term of law. we are speaking of a family-connection still closer and more stringent than any with which we are made acquainted by hindoo society or ancient roman law. if the roman paterfamilias was visibly steward of the family possessions, if the hindoo father is only joint-sharer with his sons, still more emphatically must the true patriarchal chieftain be merely the administrator of a common fund. the examples of succession by primogeniture which were found among the benefices may, therefore, have been imitated from a system of family-government known to the invading races, though not in general use. some ruder tribes may have still practised it, or, what is still more probable, society may have been so slightly removed from its more archaic condition that the minds of some men spontaneously recurred to it, when they were called upon to settle the rules of inheritance for a new form of property. but there is still the question, why did primogeniture gradually supersede every other principle of succession? the answer, i think, is, that european society decidedly retrograded during the dissolution of the carlovingian empire. it sank a point or two back even from the miserably low degree which it had marked during the early barbarian monarchies. the great characteristic of the period was the feebleness, or rather the abeyance, of kingly and therefore of civil authority; and hence it seems as if, civil society no longer cohering, men universally flung themselves back on a social organisation older than the beginnings of civil communities. the lord with his vassals, during the ninth and tenth centuries, may be considered as a patriarchal household, recruited, not as in the primitive times by adoption, but by infeudation; and to such a confederacy, succession by primogeniture was a source of strength and durability. so long as the land was kept together on which the entire organisation rested, it was powerful for defence and attack; to divide the land was to divide the little society, and voluntarily to invite aggression in an era of universal violence. we may be perfectly certain that into this preference for primogeniture there entered no idea of disinheriting the bulk of the children in favour of one. everybody would have suffered by the division of the fief. everybody was a gainer by its consolidation. the family grew stronger by the concentration of power in the same hands; nor is it likely that the lord who was invested with the inheritance had any advantage over his brethren and kinsfolk in occupations, interests, or indulgences. it would be a singular anachronism to estimate the privileges succeeded to by the heir of a fief, by the situation in which the eldest son is placed under an english strict settlement. i have said that i regard the early feudal confederacies as descended from an archaic form of the family, and as wearing a strong resemblance to it. but then in the ancient world, and in the societies which have not passed through the crucible of feudalism, the primogeniture which seems to have prevailed never transformed itself into the primogeniture of the later feudal europe. when the group of kinsmen ceased to be governed through a series of generations by a hereditary chief, the domain which had been managed for all appears to have been equally divided among all. why did this not occur in the feudal world? if during the confusions of the first feudal period the eldest son held the land for the behoof of the whole family, why was it that when feudal europe had consolidated itself, and regular communities were again established, the whole family did not resume that capacity for equal inheritance which had belonged to roman and german alike? the key which unlocks this difficulty has rarely been seized by the writers who occupy themselves in tracing the genealogy of feudalism. they perceive the materials of the feudal institutions, but they miss the cement. the ideas and social forms which contributed to the formation of the system were unquestionably barbarian and archaic, but, as soon as courts and lawyers were called in to interpret and define it, the principles of interpretation which they applied to it were those of the latest roman jurisprudence, and were therefore excessively refined and matured. in a patriarchally governed society, the eldest son may succeed to the government of the agnatic group, and to the absolute disposal of its property. but he is not therefore a true proprietor. he has correlative duties not involved in the conception of proprietorship, but quite undefined and quite incapable of definition. the later roman jurisprudence, however, like our own law, looked upon uncontrolled power over property as equivalent to ownership, and did not, and, in fact, could not, take notice of liabilities of such a kind, that the very conception of them belonged to a period anterior to regular law. the contact of the refined and the barbarous notion had inevitably for its effect the conversion of the eldest son into legal proprietor of the inheritance. the clerical and secular lawyers so defined his position from the first; but it was only by insensible degrees that the younger brother, from participating on equal terms in all the dangers and enjoyments of his kinsman, sank into the priest, the soldier of fortune, or the hanger-on of the mansion. the legal revolution was identical with that which occurred on a smaller scale, and in quite recent times, through the greater part of the highlands of scotland. when called in to determine the legal powers of the chieftain over the domains which gave sustenance to the clan, scottish jurisprudence had long since passed the point at which it could take notice of the vague limitations on completeness of dominion imposed by the claims of the clansmen, and it was inevitable therefore that it should convert the patrimony of many into the estate of one. for the sake of simplicity i have called the mode of succession primogeniture whenever a single son or descendant succeeds to the authority over a household or society. it is remarkable, however, that in the few very ancient examples which remain to us of this sort of succession, it is not always the eldest son, in the sense familiar to us, who takes up the representation. the form of primogeniture which has spread over western europe has also been perpetuated among the hindoos, and there is every reason to believe that it is the normal form. under it, not only the eldest son, but the eldest line is always preferred. if the eldest son fails, his eldest son has precedence not only over brothers but over uncles; and, if he too fails, the same rule is followed in the next generation. but when the succession is not merely to _civil_ but to _political_ power, a difficulty may present itself which will appear of greater magnitude according as the cohesion of society is less perfect. the chieftain who last exercised authority may have outlived his eldest son, and the grandson who is primarily entitled to succeed may be too young and immature to undertake the actual guidance of the community, and the administration of its affairs. in such an event, the expedient which suggests itself to the more settled societies is to place the infant heir under guardianship till he reaches the age of fitness for government. the guardianship is generally that of the male agnates; but it is remarkable that the contingency supposed is one of the rare cases in which ancient societies have consented to the exercise of power by women, doubtless out of respect to the overshadowing claims of the mother. in india, the widow of a hindoo sovereign governs in the name of her infant son, and we cannot but remember that the custom regulating succession to the throne of france--which, whatever be its origin, is doubtless of the highest antiquity--preferred the queen-mother to all other claimants for the regency, at the same time that it rigorously excluded all females from the throne. there is, however, another mode of obviating the inconvenience attending the devolution of sovereignty on an infant heir, and it is one which would doubtless occur spontaneously to rudely organised communities. this is to set aside the infant heir altogether, and confer the chieftainship on the eldest surviving male of the first generation. the celtic clan-associations, among the many phenomena which they have preserved of an age in which civil and political society were not yet even rudimentarily separated, have brought down this rule of succession to historical times. with them, it seems to have existed in the form of a positive canon, that, failing the eldest son, his next brother succeeds in priority to all grandsons, whatever be their age at the moment when the sovereignty devolves. some writers have explained the principle by assuming that the celtic customs took the last chieftain as a sort of root or stock, and then gave the succession to the descendant who should be least remote from him; the uncle thus being preferred to the grandson as being nearer to the common root. no objection can be taken to this statement if it be merely intended as a description of the system of succession; but it would be a serious error to conceive the men who first adopted the rule as applying a course of reasoning which evidently dates from the time when feudal schemes of succession begun to be debated among lawyers. the true origin of the preference of the uncle to the grandson is doubtless a simple calculation on the part of rude men in a rude society that it is better to be governed by a grown chieftain than by a child, and that the younger son is more likely to have come to maturity than any of the eldest son's descendants. at the same time, we have some evidence that the form of primogeniture with which we are best acquainted is the primary form, in the tradition that the assent of the clan was asked when an infant heir was passed over in favour of his uncle. there is a tolerably well authenticated instance of this ceremony in the annals of the macdonalds. under mahometan law, which has probably preserved an ancient arabian custom, inheritances of property are divided equally among sons, the daughters taking a half share; but if any of the children die before the division of the inheritance, leaving issue behind, these grandchildren are entirely excluded by their uncles and aunts. consistently with this principle, the succession, when political authority devolves, is according to the form of primogeniture which appears to have obtained among the celtic societies. in the two great mahometan families of the west, the rule is believed to be, that the uncle succeeds to the throne in preference to the nephew, though the latter be the son of an elder brother; but though this rule has been followed quite recently in egypt, i am informed that there is some doubt as to its governing the devolution of the turkish sovereignty. the policy of the sultans has in fact hitherto prevented cases for its application from occurring, and it is possible that their wholesale massacres of their younger brothers may have been perpetuated quite as much in the interest of their children as for the sake of making away with dangerous competitors for the throne. it is evident, however, that in polygamous societies the form of primogeniture will always tend to vary. many considerations may constitute a claim on the succession, the rank of the mother, for example, or her degree in the affections of the father. accordingly, some of the indian mahometan sovereigns, without pretending to any distinct testamentary power, claim the right of nominating the son who is to succeed. the _blessing_ mentioned in the scriptural history of isaac and his sons has sometimes been spoken of as a will, but it seems rather to have been a mode of naming an eldest son. chapter viii the early history of property the roman institutional treatises, after giving their definition of the various forms and modifications of ownership, proceed to discuss the natural modes of acquiring property. those who are unfamiliar with the history of jurisprudence are not likely to look upon these "natural modes" of acquisition as possessing, at first sight, either much speculative or much practical interest. the wild animal which is snared or killed by the hunter, the soil which is added to our field by the imperceptible deposits of a river, the tree which strikes its roots into our ground, are each said by the roman lawyers to be acquired by us _naturally_. the older jurisconsults had doubtless observed that such acquisitions were universally sanctioned by the usages of the little societies around them, and thus the lawyers of a later age, finding them classed in the ancient jus gentium, and perceiving them to be of the simplest description, allotted them a place among the ordinances of nature. the dignity with which they were invested has gone on increasing in modern times till it is quite out of proportion to their original importance. theory has made them its favourite food, and has enabled them to exercise the most serious influence on practice. it will be necessary for us to attend to one only among these "natural modes of acquisition," occupatio or occupancy. occupancy is the advisedly taking possession of that which at the moment is the property of no man, with the view (adds the technical definition) of acquiring property in it for yourself. the objects which the roman lawyers called _res nullius_--things which have not or have never had an owner--can only be ascertained by enumerating them. among things which _never had_ an owner are wild animals, fishes, wild fowl, jewels disinterred for the first time, and lands newly discovered or never before cultivated. among things which _have not_ an owner are moveables which have been abandoned, lands which have been deserted, and (an anomalous but most formidable item) the property of an enemy. in all these objects the full rights of dominion were acquired by the _occupant_ who first took possession of them with the intention of keeping them as his own--an intention which, in certain cases, had to be manifested by specific acts. it is not difficult, i think, to understand the universality which caused the practice of occupancy to be placed by one generation of roman lawyers in the law common to all nations, and the simplicity which occasioned its being attributed by another to the law of nature. but for its fortunes in modern legal history we are less prepared by _à priori_ considerations. the roman principle of occupancy, and the rules into which the jurisconsults expanded it, are the source of all modern international law on the subject of capture in war and of the acquisition of sovereign rights in newly discovered countries. they have also supplied a theory of the origin of property, which is at once the popular theory, and the theory which, in one form or another, is acquiesced in by the great majority of speculative jurists. i have said that the roman principle of occupancy has determined the tenor of that chapter of international law which is concerned with capture in war. the law of warlike capture derives its rules from the assumption that communities are remitted to a state of nature by the outbreak of hostilities, and that, in the artificial natural condition thus produced, the institution of private property falls into abeyance so far as concerns the belligerents. as the later writers on the law of nature have always been anxious to maintain that private property was in some sense sanctioned by the system which they were expounding, the hypothesis that an enemy's property is _res nullius_ has seemed to them perverse and shocking, and they are careful to stigmatise it as a mere fiction of jurisprudence. but, as soon as the law of nature is traced to its source in the jus gentium, we see at once how the goods of an enemy came to be looked upon as nobody's property, and therefore as capable of being acquired by the first occupant. the idea would occur spontaneously to persons practising the ancient forms of warfare, when victory dissolved the organisation of the conquering army and dismissed the soldiers to indiscriminate plunder. it is probable, however, that originally it was only moveable property which was thus permitted to be acquired by the captor. we know on independent authority that a very different rule prevailed in ancient italy as to the acquisition of ownership in the soil of a conquered country, and we may therefore suspect that the application of the principle of occupancy to land (always a matter of difficulty) dates from the period when the jus gentium was becoming the code of nature, and that it is the result of a generalisation effected by the jurisconsults of the golden age. their dogmas on the point are preserved in the pandects of justinian, and amount to an unqualified assertion that enemy's property of every sort is _res nullius_ to the other belligerent, and that occupancy, by which the captor makes them his own, is an institution of natural law. the rules which international jurisprudence derives from these positions have sometimes been stigmatised as needlessly indulgent to the ferocity and cupidity of combatants, but the charge has been made, i think, by persons who are unacquainted with the history of wars, and who are consequently ignorant how great an exploit it is to command obedience for a rule of any kind. the roman principle of occupancy, when it was admitted into the modern law of capture in war, drew with it a number of subordinate canons, limiting and giving precision to its operation, and if the contests which have been waged since the treatise of grotius became an authority, are compared with those of an earlier date, it will be seen that, as soon as the roman maxims were received, warfare instantly assumed a more tolerable complexion. if the roman law of occupancy is to be taxed with having had pernicious influence on any part of the modern law of nations, there is another chapter in it which may be said, with some reason, to have been injuriously affected. in applying to the discovery of new countries the same principles which the romans had applied to the finding of a jewel, the publicists forced into their service a doctrine altogether unequal to the task expected from it. elevated into extreme importance by the discoveries of the great navigators of the fifteenth and sixteenth centuries, it raised more disputes than it solved. the greatest uncertainty was very shortly found to exist on the very two points on which certainty was most required, the extent of the territory which was acquired for his sovereign by the discoverer, and the nature of the acts which were necessary to complete the _adprehensio_ or assumption of sovereign possession. moreover, the principle itself, conferring as it did such enormous advantages as the consequence of a piece of good luck, was instinctively mutinied against by some of the most adventurous nations in europe, the dutch, the english, and the portuguese. our own countrymen, without expressly denying the rule of international law, never did, in practice, admit the claim of the spaniards to engross the whole of america south of the gulf of mexico, or that of the king of france to monopolise the valleys of the ohio and the mississippi. from the accession of elizabeth to the accession of charles the second, it cannot be said that there was at any time thorough peace in the american waters, and the encroachments of the new england colonists on the territory of the french king continued for almost a century longer. bentham was so struck with the confusion attending the application of the legal principle, that he went out of his way to eulogise the famous bull of pope alexander the sixth, dividing the undiscovered countries of the world between the spaniards and portuguese by a line drawn one hundred leagues west of the azores; and, grotesque as his praises may appear at first sight, it may be doubted whether the arrangement of pope alexander is absurder in principle than the rule of public law, which gave half a continent to the monarch whose servants had fulfilled the conditions required by roman jurisprudence for the acquisition of property in a valuable object which could be covered by the hand. to all who pursue the inquiries which are the subject of this volume, occupancy is pre-eminently interesting on the score of the service it has been made to perform for speculative jurisprudence, in furnishing a supposed explanation of the origin of private property. it was once universally believed that the proceeding implied in occupancy was identical with the process by which the earth and its fruits, which were at first in common, became the allowed property of individuals. the course of thought which led to this assumption is not difficult to understand, if we seize the shade of difference which separates the ancient from the modern conception of natural law. the roman lawyers had laid down that occupancy was one of the natural modes of acquiring property, and they undoubtedly believed that, were mankind living under the institutions of nature, occupancy would be one of their practices. how far they persuaded themselves that such a condition of the race had ever existed, is a point, as i have already stated, which their language leaves in much uncertainty; but they certainly do seem to have made the conjecture, which has at all times possessed much plausibility, that the institution of property was not so old as the existence of mankind. modern jurisprudence, accepting all their dogmas without reservation, went far beyond them in the eager curiosity with which it dwelt on the supposed state of nature. since then it had received the position that the earth and its fruits were once _res nullius_, and since its peculiar view of nature led it to assume without hesitation that the human race had actually practised the occupancy of _res nullius_ long before the organisation of civil societies, the inference immediately suggested itself that occupancy was the process by which the "no man's goods" of the primitive world became the private property of individuals in the world of history. it would be wearisome to enumerate the jurists who have subscribed to this theory in one shape or another, and it is the less necessary to attempt it because blackstone, who is always a faithful index of the average opinions of his day, has summed them up in his 2nd book and 1st chapter. "the earth," he writes, "and all things therein were the general property of mankind from the immediate gift of the creator. not that the communion of goods seems ever to have been applicable, even in the earliest ages, to aught but the substance of the thing; nor could be extended to the use of it. for, by the law of nature and reason he who first began to use it acquired therein a kind of transient property that lasted so long as he was using it, and no longer; or to speak with greater precision, the right of possession continued for the same time only that the act of possession lasted. thus the ground was in common, and no part was the permanent property of any man in particular; yet whoever was in the occupation of any determined spot of it, for rest, for shade, or the like, acquired for the time a sort of ownership, from which it would have been unjust and contrary to the law of nature to have driven him by force, but the instant that he quitted the use of occupation of it, another might seize it without injustice." he then proceeds to argue that "when mankind increased in number, it became necessary to entertain conceptions of more permanent dominion, and to appropriate to individuals not the immediate use only, but the very substance of the thing to be used." some ambiguities of expression in this passage lead to the suspicion that blackstone did not quite understand the meaning of the proposition which he found in his authorities, that property in the earth's surface was first acquired, under the law of nature, by the _occupant_; but the limitation which designedly or through misapprehension he has imposed on the theory brings it into a form which it has not infrequently assumed. many writers more famous than blackstone for precision of language have laid down that, in the beginning of things, occupancy first gave a right against the world to an exclusive but temporary enjoyment, and that afterwards this right, while it remained exclusive, became perpetual. their object in so stating their theory was to reconcile the doctrine that in the state of nature _res nullius_ became property through occupancy, with the inference which they drew from the scriptural history that the patriarchs did not at first permanently appropriate the soil which had been grazed over by their flocks and herds. the only criticism which could be directly applied to the theory of blackstone would consist in inquiring whether the circumstances which make up his picture of a primitive society are more or less probable than other incidents which could be imagined with equal readiness. pursuing this method of examination, we might fairly ask whether the man who had _occupied_ (blackstone evidently uses this word with its ordinary english meaning) a particular spot of ground for rest or shade would be permitted to retain it without disturbance. the chances surely are that his right to possession would be exactly coextensive with his power to keep it, and that he would be constantly liable to disturbance by the first comer who coveted the spot and thought himself strong enough to drive away the possessor. but the truth is that all such cavil at these positions is perfectly idle from the very baselessness of the positions themselves. what mankind did in the primitive state may not be a hopeless subject of inquiry, but of their motives for doing it it is impossible to know anything. these sketches of the plight of human beings in the first ages of the world are effected by first supposing mankind to be divested of a great part of the circumstances by which they are now surrounded, and by then assuming that, in the condition thus imagined, they would preserve the same sentiments and prejudices by which they are now actuated,--although, in fact, these sentiments may have been created and engendered by those very circumstances of which, by the hypothesis, they are to be stripped. there is an aphorism of savigny which has been sometimes thought to countenance a view of the origin of property somewhat similar to the theories epitomised by blackstone. the great german jurist has laid down that all property is founded on adverse possession ripened by prescription. it is only with respect to roman law that savigny makes this statement, and before it can fully be appreciated much labour must be expended in explaining and defining the expressions employed. his meaning will, however, be indicated with sufficient accuracy if we consider him to assert that, how far soever we carry our inquiry into the ideas of property received among the romans, however closely we approach in tracing them to the infancy of law, we can get no farther than a conception of ownership involving the three elements in the canon--possession, adverseness of possession, that is a holding not permissive or subordinate, but exclusive against the world, and prescription, or a period of time during which the adverse possession has uninterruptedly continued. it is exceedingly probable that this maxim might be enunciated with more generality than was allowed to it by its author, and that no sound or safe conclusion can be looked for from investigations into any system of laws which are pushed farther back than the point at which these combined ideas constitute the notion of proprietary right. meantime, so far from bearing out the popular theory of the origin of property, savigny's canon is particularly valuable as directing our attention to its weakest point. in the view of blackstone and those whom he follows, it was the mode of assuming the exclusive enjoyment which mysteriously affected the minds of the fathers of our race. but the mystery does not reside here. it is not wonderful that property began in adverse possession. it is not surprising that the first proprietor should have been the strong man armed who kept his goods in peace. but why it was that lapse of time created a sentiment of respect for his possession--which is the exact source of the universal reverence of mankind for that which has for a long period _de facto_ existed--are questions really deserving the profoundest examination, but lying far beyond the boundary of our present inquiries. before pointing out the quarter in which we may hope to glean some information, scanty and uncertain at best, concerning the early history of proprietary right, i venture to state my opinion that the popular impression in reference to the part played by occupancy in the first stages of civilisation directly reverses the truth. occupancy is the advised assumption of physical possession; and the notion that an act of this description confers a title to "res nullius," so far from being characteristic of very early societies, is in all probability the growth of a refined jurisprudence and of a settled condition of the laws. it is only when the rights of property have gained a sanction from long practical inviolability and when the vast majority of the objects of enjoyment have been subjected to private ownership, that mere possession is allowed to invest the first possessor with dominion over commodities in which no prior proprietorship has been asserted. the sentiment in which this doctrine originated is absolutely irreconcilable with that infrequency and uncertainty of proprietary rights which distinguish the beginnings of civilisation. its true basis seems to be, not an instinctive bias towards the institution of property, but a presumption arising out of the long continuance of that institution, that _everything ought to have an owner_. when possession is taken of a "res nullius," that is, of an object which _is_ not, or has _never_ been, reduced to dominion, the possessor is permitted to become proprietor from a feeling that all valuable things are naturally the subjects of an exclusive enjoyment, and that in the given case there is no one to invest with the right of property except the occupant. the occupant in short, becomes the owner, because all things are presumed to be somebody's property and because no one can be pointed out as having a better right than he to the proprietorship of this particular thing. even were there no other objection to the descriptions of mankind in their natural state which we have been discussing, there is one particular in which they are fatally at variance with the authentic evidence possessed by us. it will be observed that the acts and motives which these theories suppose are the acts and motives of individuals. it is each individual who for himself subscribes the social compact. it is some shifting sandbank in which the grains are individual men, that according to the theory of hobbes is hardened into the social rock by the wholesome discipline of force. it is an individual who, in the picture drawn by blackstone, "is in the occupation of a determined spot of ground for rest, for shade, or the like." the vice is one which necessarily afflicts all the theories descended from the natural law of the romans, which differed principally from their civil law in the account which it took of individuals, and which has rendered precisely its greatest service to civilisation in enfranchising the individual from the authority of archaic society. but ancient law, it must again be repeated, knows next to nothing of individuals. it is concerned not with individuals, but with families, not with single human beings, but groups. even when the law of the state has succeeded in permeating the small circles of kindred into which it had originally no means of penetrating, the view it takes of individuals is curiously different from that taken by jurisprudence in its maturest stage. the life of each citizen is not regarded as limited by birth and death; it is but a continuation of the existence of his forefathers, and it will be prolonged in the existence of his descendants. the roman distinction between the law of persons and the law of things, which though extremely convenient is entirely artificial, has evidently done much to divert inquiry on the subject before us from the true direction. the lessons learned in discussing the jus personarum have been forgotten where the jus rerum is reached, and property, contract, and delict, have been considered as if no hints concerning their original nature were to be gained from the facts ascertained respecting the original condition of persons. the futility of this method would be manifest if a system of pure archaic law could be brought before us, and if the experiment could be tried of applying to it the roman classifications. it would soon be seen that the separation of the law of persons from that of things has no meaning in the infancy of law, that the rules belonging to the two departments are inextricably mingled together, and that the distinctions of the later jurists are appropriate only to the later jurisprudence. from what has been said in the earlier portions of this treatise, it will be gathered that there is a strong _à priori_ improbability of our obtaining any clue to the early history of property, if we confine our notice to the proprietary rights of individuals. it is more than likely that joint-ownership, and not separate ownership, is the really archaic institution, and that the forms of property which will afford us instruction will be those which are associated with the rights of families and of groups of kindred. the roman jurisprudence will not here assist in enlightening us, for it is exactly the roman jurisprudence which, transformed by the theory of natural law, has bequeathed to the moderns the impression that individual ownership is the normal state of proprietary right, and that ownership in common by groups of men is only the exception to a general rule. there is, however, one community which will always be carefully examined by the inquirer who is in quest of any lost institution of primeval society. how far soever any such institution may have undergone change among the branch of the indo-european family which has been settled for ages in india, it will seldom be found to have entirely cast aside the shell in which it was originally reared. it happens that, among the hindoos, we do find a form of ownership which ought at once to rivet our attention from its exactly fitting in with the ideas which our studies in the law of persons would lead us to entertain respecting the original condition of property. the village community of india is at once an organised patriarchal society and an assemblage of co-proprietors. the personal relations to each other of the men who compose it are indistinguishably confounded with their proprietary rights, and to the attempts of english functionaries to separate the two may be assigned some of the most formidable miscarriages of anglo-indian administration. the village community is known to be of immense antiquity. in whatever direction research has been pushed into indian history, general or local, it has always found the community in existence at the farthest point of its progress. a great number of intelligent and observant writers, most of whom had no theory of any sort to support concerning its nature and origin, agree in considering it the least destructible institution of a society which never willingly surrenders any one of its usages to innovation. conquests and revolutions seem to have swept over it without disturbing or displacing it, and the most beneficent systems of government in india have always been those which have recognised it as the basis of administration. the mature roman law, and modern jurisprudence following in its wake, look upon co-ownership as an exceptional and momentary condition of the rights of property. this view is clearly indicated in the maxim which obtains universally in western europe, _nemo in communione potest invitus detineri_ ("no one can be kept in co-proprietorship against his will"). but in india this order of ideas is reversed, and it may be said that separate proprietorship is always on its way to become proprietorship in common. the process has been adverted to already. as soon as a son is born, he acquires a vested interest in his father's substance, and on attaining years of discretion he is even, in certain contingencies, permitted by the letter of the law to call for a partition of the family estate. as a fact, however, a division rarely takes place even at the death of the father, and the property constantly remains undivided for several generations, though every member of every generation has a legal right to an undivided share in it. the domain thus held in common is sometimes administered by an elected manager, but more generally, and in some provinces always, it is managed by the eldest agnate, by the eldest representative of the eldest line of the stock. such an assemblage of joint proprietors, a body of kindred holding a domain in common, is the simplest form of an indian village community, but the community is more than a brotherhood of relatives and more than an association of partners. it is an organised society, and besides providing for the management of the common fund, it seldom fails to provide, by a complete staff of functionaries, for internal government, for police, for the administration of justice, and for the apportionment of taxes and public duties. the process which i have described as that under which a village community is formed, may be regarded as typical. yet it is not to be supposed that every village community in india drew together in so simple a manner. although, in the north of india, the archives, as i am informed, almost invariably show that the community was founded by a single assemblage of blood-relations, they also supply information that men of alien extraction have always, from time to time, been engrafted on it, and a mere purchaser of a share may generally, under certain conditions, be admitted to the brotherhood. in the south of the peninsula there are often communities which appear to have sprung not from one but from two or more families; and there are some whose composition is known to be entirely artificial; indeed, the occasional aggregation of men of different castes in the same society is fatal to the hypothesis of a common descent. yet in all these brotherhoods either the tradition is preserved, or the assumption made, of an original common parentage. mountstuart elphinstone, who writes more particularly of the southern village communities, observes of them (_history of india_, i. 126): "the popular notion is that the village landholders are all descended from one or more individuals who settled the village; and that the only exceptions are formed by persons who have derived their rights by purchase or otherwise from members of the original stock. the supposition is confirmed by the fact that, to this day, there are only single families of landholders in small villages and not many in large ones; but each has branched out into so many members that it is not uncommon for the whole agricultural labour to be done by the landholders, without the aid either of tenants or of labourers. the rights of the landholders are theirs collectively and, though they almost always have a more or less perfect partition of them, they never have an entire separation. a landholder, for instance, can sell or mortgage his rights; but he must first have the consent of the village, and the purchaser steps exactly into his place and takes up all his obligations. if a family becomes extinct, its share returns to the common stock." some considerations which have been offered in the fifth chapter of this volume will assist the reader, i trust, in appreciating the significance of elphinstone's language. no institution of the primitive world is likely to have been preserved to our day, unless it has acquired an elasticity foreign to its original nature through some vivifying legal fiction. the village community then is not necessarily an assemblage of blood-relations, but it is _either_ such an assemblage _or_ a body of co-proprietors formed on the model of an association of kinsmen. the type with which it should be compared is evidently not the roman family, but the roman gens or house. the gens was also a group on the model of the family; it was the family extended by a variety of fictions of which the exact nature was lost in antiquity. in historical times, its leading characteristics were the very two which elphinstone remarks in the village community. there was always the assumption of a common origin, an assumption sometimes notoriously at variance with fact; and, to repeat the historian's words, "if a family became extinct, its share returned to the common stock." in old roman law, unclaimed inheritances escheated to the gentiles. it is further suspected by all who have examined their history that the communities, like the gentes, have been very generally adulterated by the admission of strangers, but the exact mode of absorption cannot now be ascertained. at present, they are recruited, as elphinstone tells us, by the admission of purchasers, with the consent of the brotherhood. the acquisition of the adopted member is, however, of the nature of a universal succession; together with the share he has bought, he succeeds to the liabilities which the vendor had incurred towards the aggregate group. he is an emptor familiæ, and inherits the legal clothing of the person whose place he begins to fill. the consent of the whole brotherhood required for his admission may remind us of the consent which the comitia curiata, the parliament of that larger brotherhood of self-styled kinsmen, the ancient roman commonwealth, so strenuously insisted on as essential to the legalisation of an adoption or the confirmation of a will. the tokens of an extreme antiquity are discoverable in almost every single feature of the indian village communities. we have so many independent reasons for suspecting that the infancy of law is distinguished by the prevalence of co-ownership by the intermixture of personal with proprietary rights, and by the confusion of public with private duties, that we should be justified in deducing many important conclusions from our observation of these proprietary brotherhoods, even if no similarly compounded societies could be detected in any other part of the world. it happens, however, that much earnest curiosity has been very recently attracted to a similar set of phenomena in those parts of europe which have been most slightly affected by the feudal transformation of property, and which in many important particulars have as close an affinity with the eastern as with the western world. the researches of m. de haxthausen, m. tengoborski, and others, have shown us that the russian villages are not fortuitous assemblages of men, nor are they unions founded on contract; they are naturally organised communities like those of india. it is true that these villages are always in theory the patrimony of some noble proprietor and the peasants have within historical times been converted into the predial, and to a great extent into the personal, serfs of the seignior. but the pressure of this superior ownership has never crushed the ancient organisation of the village, and it is probable that the enactment of the czar of russia, who is supposed to have introduced serfdom, was really intended to prevent the peasants from abandoning that co-operation without which the old social order could not long be maintained. in the assumption of an agnatic connection between the villagers, in the blending of personal rights with privileges of ownership, and in a variety of spontaneous provisions for internal administration, the russian village appears to be a nearly exact repetition of the indian community; but there is one important difference which we note with the greatest interest. the co-owners of an indian village, though their property is blended, have their rights distinct, and this separation of rights is complete and continues indefinitely. the severance of rights is also theoretically complete in a russian village, but there it is only temporary. after the expiration of a given, but not in all cases of the same, period separate ownerships are extinguished, the land of the village is thrown into a mass, and then it is re-distributed among the families composing the community, according to their number. this repartition having been effected, the rights of families and of individuals are again allowed to branch out into various lines, which they continue to follow till another period of division comes round. an even more curious variation from this type of ownership occurs in some of those countries which long formed a debateable land between the turkish empire and the possessions of the house of austria. in servia, in croatia, and the austrian sclavonia, the villages are also brotherhoods of persons who are at once co-owners and kinsmen; but there the internal arrangements of the community differ from those adverted to in the last two examples. the substance of the common property is in this case neither divided in practice nor considered in theory as divisible, but the entire land is cultivated by the combined labour of all the villagers, and the produce is annually distributed among the households, sometimes according to their supposed wants, sometimes according to rules which give to particular persons a fixed share of the usufruct. all these practices are traced by the jurists of the east of europe to a principle which is asserted to be found in the earliest sclavonian laws, the principle that the property of families cannot be divided for a perpetuity. the great interest of these phenomena in an inquiry like the present arises from the light they throw on the development of distinct proprietary rights _inside_ the groups by which property seems to have been originally held. we have the strongest reason for thinking that property once belonged not to individuals nor even to isolated families, but to larger societies composed on the patriarchal model; but the mode of transition from ancient to modern ownerships, obscure at best, would have been infinitely obscurer if several distinguishable forms of village communities had not been discovered and examined. it is worth while to attend to the varieties of internal arrangement within the patriarchal groups which are, or were till recently, observable among races of indo-european blood. the chiefs of the ruder highland clans used, it is said, to dole out food to the heads of the households under their jurisdiction at the very shortest intervals, and sometimes day by day. a periodical distribution is also made to the sclavonian villagers of the austrian and turkish provinces by the elders of their body, but then it is a distribution once for all of the total produce of the year. in the russian villages, however, the substance of the property ceases to be looked upon as indivisible, and separate proprietary claims are allowed freely to grow up, but then the progress of separation is peremptorily arrested after it has continued a certain time. in india, not only is there no indivisibility of the common fund, but separate proprietorship in parts of it may be indefinitely prolonged and may branch out into any number of derivative ownerships, the _de facto_ partition of the stock being, however, checked by inveterate usage, and by the rule against the admission of strangers without the consent of the brotherhood. it is not of course intended to insist that these different forms of the village community represent distinct stages in a process of transmutation which has been everywhere accomplished in the same manner. but, though the evidence does not warrant our going so far as this, it renders less presumptuous the conjecture that private property, in the shape in which we know it, was chiefly formed by the gradual disentanglement of the separate rights of individuals from the blended rights of a community. our studies in the law of persons seemed to show us the family expanding into the agnatic group of kinsmen, then the agnatic group dissolving into separate households; lastly the household supplanted by the individual; and it is now suggested that each step in the change corresponds to an analogous alteration in the nature of ownership. if there be any truth in the suggestion, it is to be observed that it materially affects the problem which theorists on the origin of property have generally proposed to themselves. the question--perhaps an insoluble one--which they have mostly agitated is, what were the motives which first induced men to respect each other's possessions? it may still be put, without much hope of finding an answer to it, in the form of any inquiry into the reasons which led one composite group to keep aloof from the domain of another. but, if it be true that far the most important passage in the history of private property is its gradual elimination from the co-ownership of kinsmen, then the great point of inquiry is identical with that which lies on the threshold of all historical law--what were the motives which originally prompted men to hold together in the family union? to such a question, jurisprudence, unassisted by other sciences, is not competent to give a reply. the fact can only be noted. the undivided state of property in ancient societies is consistent with a peculiar sharpness of division, which shows itself as soon as any single share is completely separated from the patrimony of the group. this phenomenon springs, doubtless, from the circumstance that the property is supposed to become the domain of a new group, so that any dealing with it, in its divided state, is a transaction between two highly complex bodies. i have already compared ancient law to modern international law, in respect of the size and complexity of the corporate associations, whose rights and duties it settles. as the contracts and conveyances known to ancient law are contracts and conveyances to which not single individuals, but organised companies of men, are parties, they are in the highest degree ceremonious; they require a variety of symbolical acts and words intended to impress the business on the memory of all who take part in it; and they demand the presence of an inordinate number of witnesses. from these peculiarities, and others allied to them, springs the universally unmalleable character of the ancient forms of property. sometimes the patrimony of the family is absolutely inalienable, as was the case with the sclavonians, and still oftener, though alienations may not be entirely illegitimate, they are virtually impracticable, as among most of the germanic tribes, from the necessity of having the consent of a large number of persons to the transfer. where these impediments do not exist, or can be surmounted, the act of conveyance itself is generally burdened with a perfect load of ceremony, in which not one iota can be safely neglected. ancient law uniformly refuses to dispense with a single gesture, however grotesque; with a single syllable, however its meaning may have been forgotten; with a single witness, however superfluous may be his testimony. the entire solemnities must be scrupulously completed by persons legally entitled to take part in them, or else the conveyance is null, and the seller is re-established in the rights of which he had vainly attempted to divest himself. these various obstacles to the free circulation of the objects of use and enjoyment, begin of course to make themselves felt as soon as society has acquired even a slight degree of activity, and the expedients by which advancing communities endeavour to overcome them form the staple of the history of property. of such expedients there is one which takes precedence of the rest from its antiquity and universality. the idea seems to have spontaneously suggested itself to a great number of early societies, to classify property into kinds. one kind or sort of property is placed on a lower footing of dignity than the others, but at the same time is relieved from the fetters which antiquity has imposed on them. subsequently, the superior convenience of the rules governing the transfer and descent of the lower order of property becomes generally recognised, and by a gradual course of innovation the plasticity of the less dignified class of valuable objects is communicated to the classes which stand conventionally higher. the history of roman property law is the history of the assimilation of res mancipi to res nec mancipi. the history of property on the european continent is the history of the subversion of the feudalised law of land by the romanised law of moveables; and, though the history of ownership in england is not nearly completed, it is visibly the law of personalty which threatens to absorb and annihilate the law of realty. the only _natural_ classification of the objects of enjoyment, the only classification which corresponds with an essential difference in the subject-matter, is that which divides them into moveables and immoveables. familiar as is this classification to jurisprudence, it was very slowly developed by roman law, from which we inherit it, and was only finally adopted by it in its latest stage. the classifications of ancient law have sometimes a superficial resemblance to this. they occasionally divide property into categories, and place immoveables in one of them; but then it is found that they either class along with immoveables a number of objects which have no sort of relation with them, or else divorce them from various rights to which they have a close affinity. thus, the res mancipi of roman law included not only land, but slaves, horses, and oxen. scottish law ranks with land a certain class of securities, and hindoo law associates it with slaves. english law, on the other hand, parts leases of land for years from other interests in the soil, and joins them to personalty under the name of chattels real. moreover, the classifications of ancient law are classifications implying superiority and inferiority; while the distinction between moveables and immoveables, so long at least as it was confined to roman jurisprudence, carried with it no suggestion whatever of a difference in dignity. the res mancipi, however, did certainly at first enjoy a precedence over the res nec mancipi, as did heritable property in scotland and realty in england, over the personalty to which they were opposed. the lawyers of all systems have spared no pains in striving to refer these classifications to some intelligible principle; but the reasons of the severance must ever be vainly sought for in the philosophy of law: they belong not to its philosophy, but to its history. the explanation which appears to cover the greatest number of instances is, that the objects of enjoyment honoured above the rest were the forms of property known first and earliest to each particular community, and dignified therefore emphatically with the designation of _property_. on the other hand, the articles not enumerated among the favoured objects seem to have been placed on a lower standing, because the knowledge of their value was posterior to the epoch at which the catalogue of superior property was settled. they were at first unknown, rare, limited in their uses, or else regarded as mere appendages to the privileged objects. thus, though the roman res mancipi included a number of moveable articles of great value, still the most costly jewels were never allowed to take rank as res mancipi, because they were unknown to the early romans. in the same way chattels real in england are said to have been degraded to the footing of personalty, from the infrequency and valuelessness of such estates under the feudal land-law. but the grand point of interest is, the continued degradation of these commodities when their importance had increased and their number had multiplied. why were they not successively included among the favoured objects of enjoyment? one reason is found in the stubbornness with which ancient law adheres to its classifications. it is a characteristic both of uneducated minds and of early societies, that they are little able to conceive a general rule apart from the particular applications of it with which they are practically familiar. they cannot dissociate a general term or maxim from the special examples which meet them in daily experience; and in this way the designation covering the best-known forms of property is denied to articles which exactly resemble them in being objects of enjoyment and subjects of right. but to these influences, which exert peculiar force in a subject-matter so stable as that of law, are afterwards added others more consistent with progress in enlightenment and in the conceptions of general expediency. courts and lawyers become at last alive to the inconvenience of the embarrassing formalities required for the transfer, recovery, or devolution of the favoured commodities, and grow unwilling to fetter the newer descriptions of property with the technical trammels which characterised the infancy of law. hence arises a disposition to keep these last on a lower grade in the arrangements of jurisprudence, and to permit their transfer by simpler processes than those which, in archaic conveyances, serve as stumbling-blocks to good faith and stepping-stones to fraud. we are perhaps in some danger of underrating the inconveniences of the ancient modes of transfer. our instruments of conveyance are written, so that their language, well pondered by the professional draftsman, is rarely defective in accuracy. but an ancient conveyance was not written, but _acted_. gestures and words took the place of written technical phraseology, and any formula mispronounced, or symbolical act omitted, would have vitiated the proceeding as fatally as a material mistake in stating the uses or setting out the remainders would, two hundred years ago, have vitiated an english deed. indeed, the mischiefs of the archaic ceremonial are even thus only half stated. so long as elaborate conveyances, written or acted, are required for the alienation of _land_ alone, the chances of mistake are not considerable in the transfer of a description of property which is seldom got rid of with much precipitation. but the higher class of property in the ancient world comprised not only land but several of the commonest and several of the most valuable moveables. when once the wheels of society had begun to move quickly, there must have been immense inconvenience in demanding a highly intricate form of transfer for a horse or an ox, or for the most costly chattel of the old world--the slave. such commodities must have been constantly and even ordinarily conveyed with incomplete forms, and held, therefore, under imperfect titles. the res mancipi of old roman law were land--in historical times, land on italian soil,--slaves and beasts of burden, such as horses and oxen. it is impossible to doubt that the objects which make up the class are the instruments of agricultural labour, the commodities of first consequence to a primitive people. such commodities were at first, i imagine, called emphatically things or property, and the mode of conveyance by which they were transferred was called a mancipium or mancipation; but it was not probably till much later that they received the distinctive appellation of res mancipi, "things which require a mancipation." by their side there may have existed or grown up a class of objects, for which it was not worth while to insist upon the full ceremony of mancipation. it would be enough if, in transferring these last from owner to owner, a part only of the ordinary formalities were proceeded with, namely, that actual delivery, physical transfer, or _tradition_, which is the most obvious index of a change of proprietorship. such commodities were the res nec mancipi of the ancient jurisprudence, "things which did not require a mancipation," little prized probably at first, and not often passed from one group of proprietors to another, while, however, the list of the res mancipi was irrevocably closed; that of the res nec mancipi admitted of indefinite expansion; and hence every fresh conquest of man over material nature added an item to the res nec mancipi, or effected an improvement in those already recognised. insensibly, therefore, they mounted to an equality with the res mancipi, and the impression of an intrinsic inferiority being thus dissipated, men began to observe the manifold advantages of the simple formality which accompanied their transfer over the more intricate and more venerable ceremonial. two of the agents of legal amelioration, fictions and equity, were assiduously employed by the roman lawyers to give the practical effects of a mancipation to a tradition: and, though roman legislators long shrank from enacting that the right of property in a res mancipi should be immediately transferred by bare delivery of the article, yet even this step was at last ventured upon by justinian, in whose jurisprudence the difference between res mancipi and res nec mancipi disappears, and tradition or delivery becomes the one great conveyance known to the law. the marked preference which the roman lawyers very early gave to tradition caused them to assign it a place in their theory which has helped to blind their modern disciples to its true history. it was classed among the "natural" modes of acquisition, both because it was generally practised among the italian tribes, and because it was a process which attained its object by the simplest mechanism. if the expressions of the jurisconsults be pressed, they undoubtedly imply that tradition, which belongs to the law natural, is more ancient than mancipation, which is an institution of civil society; and this, i need not say, is the exact reverse of the truth. the distinction between res mancipi and res nec mancipi is the type of a class of distinctions to which civilisation is much indebted, distinctions which run through the whole mass of commodities, placing a few of them in a class by themselves, and relegating the others to a lower category. the inferior kinds of property are first, from disdain and disregard, released from the perplexed ceremonies in which primitive law delights, and thus afterwards, in another state of intellectual progress, the simple methods of transfer and recovery which have been allowed to come into use serve as a model which condemns by its convenience and simplicity the cumbrous solemnities inherited from ancient days. but, in some societies, the trammels in which property is tied up are much too complicated and stringent to be relaxed in so easy a manner. whenever male children have been born to a hindoo, the law of india, as i have stated, gives them all an interest in his property, and makes their consent a necessary condition of its alienation. in the same spirit, the general usage of the old germanic peoples--it is remarkable that the anglo-saxon customs seem to have been an exception--forbade alienations without the consent of the male children; and the primitive law of the sclavonians even prohibited them altogether. it is evident that such impediments as these cannot be overcome by a distinction between kinds of property, inasmuch as the difficulty extends to commodities of all sorts; and accordingly, ancient law, when once launched on a course of improvement, encounters them with a distinction of another character, a distinction classifying property, not according to its nature but according to its origin. in india, where there are traces of both systems of classification, the one which we are considering is exemplified in the difference which hindoo law establishes between inheritances and acquisitions. the inherited property of the father is shared by the children as soon as they are born; but according to the custom of most provinces, the acquisitions made by him during his lifetime are wholly his own, and can be transferred by him at pleasure. a similar distinction was not unknown to roman law, in which the earliest innovation on the parental powers took the form of a permission given to the son to keep for himself whatever he might have acquired in military service. but the most extensive use ever made of this mode of classification appears to have been among the germans. i have repeatedly stated that the _allod_, though not inalienable, was commonly transferable with the greatest difficulty; and moreover, it descended exclusively to the agnatic kindred. hence an extraordinary variety of distinctions came to be recognised, all intended to diminish the inconveniences inseparable from allodial property. the _wehrgeld_, for example, or composition for the homicide of a relative, which occupies so large a space in german jurisprudence, formed no part of the family domain, and descended according to rules of succession altogether different. similarly, the _reipus_, or fine leviable on the re-marriage of a widow, did not enter into the _allod_ of the person to whom it was paid, and followed a line of devolution in which the privileges of the agnates were neglected. the law, too, as among the hindoos, distinguished the acquisitions of the chief of the household from his inherited property, and permitted him to deal with them under much more liberal conditions. classifications of the other sort were also admitted, and the familiar distinction drawn between land and moveables; but moveable property was divided into several subordinate categories, to each of which different rules applied. this exuberance of classification, which may strike us as strange in so rude a people as the german conquerors of the empire, is doubtless to be explained by the presence in their systems of a considerable element of roman law, absorbed by them during their long sojourn on the confines of the roman dominion. it is not difficult to trace a great number of the rules governing the transfer and devolution of the commodities which lay outside the _allod_, to their source in roman jurisprudence, from which they were probably borrowed at widely distant epochs, and in fragmentary importations. how far the obstacles to the free circulation of property were surmounted by such contrivances, we have not the means even of conjecturing, for the distinctions adverted to have no modern history. as i before explained, the allodial form of property was entirely lost in the feudal, and when the consolidation of feudalism was once completed, there was practically but one distinction left standing of all those which had been known to the western world--the distinction between land and goods, immoveables and moveables. externally this distinction was the same with that which roman law had finally accepted, but the law of the middle ages differed from that of rome in distinctly considering immoveable property to be more dignified than moveable. yet this one sample is enough to show the importance of the class of expedients to which it belongs. in all the countries governed by systems based on the french codes, that is, through much the greatest part of the continent of europe, the law of moveables, which was always roman law, has superseded and annulled the feudal law of land. england is the only country of importance in which this transmutation, though it has gone some way, is not nearly accomplished. our own, too, it may be added, is the only considerable european country in which the separation of moveables from immoveables has been somewhat disturbed by the same influences which caused the ancient classifications to depart from the only one which is countenanced by nature. in the main, the english distinction has been between land and goods; but a certain class of goods have gone as heir-looms with the land, and a certain description of interests in land have from historical causes been ranked with personalty. this is not the only instance in which english jurisprudence, standing apart from the main current of legal modification, has reproduced phenomena of archaic law. i proceed to notice one or two more contrivances by which the ancient trammels of proprietary right were more or less successfully relaxed, premising that the scheme of this treatise only permits me to mention those which are of great antiquity. on one of them in particular it is necessary to dwell for a moment or two, because persons unacquainted with the early history of law will not be easily persuaded that a principle, of which modern jurisprudence has very slowly and with the greatest difficulty obtained the recognition, was really familiar to the very infancy of legal science. there is no principle in all law which the moderns, in spite of its beneficial character, have been so loath to adopt and to carry to its legitimate consequences as that which was known to the romans as usucapion, and which has descended to modern jurisprudence under the name of prescription. it was a positive rule of the oldest roman law, a rule older than the twelve tables, that commodities which had been uninterruptedly possessed for a certain period became the property of the possessor. the period of possession was exceedingly short--one or two years according to the nature of the commodities--and in historical times usucapion was only allowed to operate when possession had commenced in a particular way; but i think it likely that at a less advanced epoch possession was converted into ownership under conditions even less severe than we read of in our authorities. as i have said before, i am far from asserting that the respect of men for _de facto_ possession is a phenomenon which jurisprudence can account for by itself, but it is very necessary to remark that primitive societies, in adopting the principle of usucapion, were not beset with any of the speculative doubts and hesitations which have impeded its reception among the moderns. prescriptions were viewed by the modern lawyers, first with repugnance, afterwards with reluctant approval. in several countries, including our own, legislation long declined to advance beyond the rude device of barring all actions based on a wrong which had been suffered earlier than a fixed point of time in the past, generally the first year of some preceding reign; nor was it till the middle ages had finally closed, and james the first had ascended the throne of england, that we obtained a true statute of limitation of a very imperfect kind. this tardiness in copying one of the most famous chapters of roman law, which was no doubt constantly read by the majority of european lawyers, the modern world owes to the influence of the canon law. the ecclesiastical customs out of which the canon law grew, concerned as they were with sacred or quasi-sacred interests, very naturally regarded the privileges which they conferred as incapable of being lost through disuse however prolonged; and in accordance with this view, the spiritual jurisprudence, when afterwards consolidated, was distinguished by a marked leaning against prescriptions. it was the fate of the canon law, when held up by the clerical lawyers as a pattern to secular legislation, to have a peculiar influence on first principles. it gave to the bodies of custom which were formed throughout europe far fewer express rules than did the roman law, but then it seems to have communicated a bias to professional opinion on a surprising number of fundamental points, and the tendencies thus produced progressively gained strength as each system was developed. one of the dispositions it produced was a disrelish for prescriptions; but i do not know that this prejudice would have operated as powerfully as it has done, if it had not fallen in with the doctrine of the scholastic jurists of the realist sect, who taught that, whatever turn actual legislation might take, a _right_, how long soever neglected, was in point of fact indestructible. the remains of this state of feeling still exist. wherever the philosophy of law is earnestly discussed, questions respecting the speculative basis of prescription are always hotly disputed; and it is still a point of the greatest interest in france and germany, whether a person who has been out of possession for a series of years is deprived of his ownership as a penalty for his neglect, or loses it through the summary interposition of the law in its desire to have a _finis litium_. but no such scruples troubled the mind of early roman society. their ancient usages directly took away the ownership of everybody who had been out of possession, under certain circumstances, during one or two years. what was the exact tenor of the rule of usucapion in its earliest shape, it is not easy to say; but, taken with the limitations which we find attending it in the books, it was a most useful security against the mischiefs of a too cumbrous system of conveyance. in order to have the benefit of usucapion, it was necessary that the adverse possession should have begun in good faith, that is, with belief on the part of the possessor that he was lawfully acquiring the property, and it was farther required that the commodity should have been transferred to him by some mode of alienation which, however unequal to conferring a complete title in the particular case, was at least recognised by the law. in the case therefore of a mancipation, however slovenly the performance might have been, yet if it had been carried so far as to involve a tradition or delivery, the vice of the title would be cured by usucapion in two years at most. i know nothing in the practice of the romans which testifies so strongly to their legal genius as the use which they made of usucapion. the difficulties which beset them were nearly the same with those which embarrassed and still embarrass the lawyers of england. owing to the complexity of their system, which as yet they had neither the courage nor the power to reconstruct, actual right was constantly getting divorced from technical right, the equitable ownership from the legal. but usucapion, as manipulated by the jurisconsults, supplied a self-acting machinery, by which the defects of titles to property were always in course of being cured, and by which the ownerships that were temporarily separated were again rapidly cemented together with the briefest possible delay. usucapion did not lose its advantages till the reforms of justinian. but as soon as law and equity had been completely fused, and when mancipation ceased to be the roman conveyance, there was no further necessity for the ancient contrivance, and usucapion, with its periods of time considerably lengthened, became the prescription which has at length been adopted by nearly all systems of modern law. i pass by with brief mention another expedient having the same object with the last, which, though it did not immediately make its appearance in english legal history, was of immemorial antiquity in roman law; such indeed is its apparent age that some german civilians, not sufficiently aware of the light thrown on the subject by the analogies of english law, have thought it even older than the mancipation. i speak of the cessio in jure, a collusive recovery, in a court of law, of property sought to be conveyed. the plaintiff claimed the subject of this proceeding with the ordinary forms of a litigation; the defendant made default; and the commodity was of course adjudged to the plaintiff. i need scarcely remind the english lawyer that this expedient suggested itself to our forefathers, and produced those famous fines and recoveries which did so much to undo the harshest trammels of the feudal land-law. the roman and english contrivances have very much in common and illustrate each other most instructively, but there is this difference between them, that the object of the english lawyers was to remove complications already introduced into the title, while the roman jurisconsults sought to prevent them by substituting a mode of transfer necessarily unimpeachable for one which too often miscarried. the device is, in fact, one which suggests itself as soon as courts of law are in steady operation, but are nevertheless still under the empire of primitive notions. in an advanced state of legal opinion, tribunals regard collusive litigation as an abuse of their procedure; but there has always been a time when, if their forms were scrupulously complied with, they never dreamed of looking further. the influence of courts of law and of their procedure upon property has been most extensive, but the subject is too large for the dimensions of this treatise, and would carry us further down the course of legal history than is consistent with its scheme. it is desirable, however, to mention, that to this influence we must attribute the importance of the distinction between property and possession--not, indeed, the distinction itself, which (in the language of an eminent english civilian) is the same thing as the distinction between the legal right to act upon a thing and the physical power to do so--but the extraordinary importance which the distinction has obtained in the philosophy of law. few educated persons are so little versed in legal literature as not to have heard that the language of the roman jurisconsults on the subject of possession long occasioned the greatest possible perplexity, and that the genius of savigny is supposed to have chiefly proved itself by the solution which he discovered for the enigma. possession, in fact, when employed by the roman lawyers, appears to have contracted a shade of meaning not easily accounted for. the word, as appears from its etymology, must have originally denoted physical contact or physical contact resumeable at pleasure; but, as actually used without any qualifying epithet, it signifies not simply physical detention, but physical detention coupled with the intention to hold the thing detained as one's own. savigny, following niebuhr, perceived that for this anomaly there could only be a historical origin. he pointed out that the patrician burghers of rome, who had become tenants of the greatest part of the public domain at nominal rents, were, in the view of the old roman law, mere possessors, but then they were possessors intending to keep their land against all comers. they, in truth, put forward a claim almost identical with that which has recently been advanced in england by the lessees of church lands. admitting that in theory they were the tenants-at-will of the state, they contended that time and undisturbed enjoyment had ripened their holding into a species of ownership, and that it would be unjust to eject them for the purpose of redistributing the domain. the association of this claim with the patrician tenancies, permanently influenced the sense of "possession." meanwhile the only legal remedies of which the tenants could avail themselves, if ejected or threatened with disturbance, were the possessory interdicts, summary processes of roman law which were either expressly devised by the prætor for their protection, or else, according to another theory, had in older times been employed for the provisional maintenance of possessions pending the settlement of questions of legal right. it came, therefore, to be understood that everybody who possessed property _as his own_ had the power of demanding the interdicts, and, by a system of highly artificial pleading, the interdictal process was moulded into a shape fitted for the trial of conflicting claims to a disputed possession. then commenced a movement which, as mr. john austin pointed out, exactly reproduced itself in english law. proprietors, _domini_, began to prefer the simpler forms or speedier course of the interdict to the lagging and intricate formalities of the real action, and for the purpose of availing themselves of the possessory remedy fell back upon the possession which was supposed to be involved in their proprietorship. the liberty conceded to persons who were not true possessors, but owners, to vindicate their rights by possessory remedies, though it may have been at first a boon, had ultimately the effect of seriously deteriorating both english and roman jurisprudence. the roman law owes to it those subtleties on the subject of possession which have done so much to discredit it, while english law, after the actions which it appropriated to the recovery of real property had fallen into the most hopeless confusion, got rid at last of the whole tangled mass by a heroic remedy. no one can doubt that the virtual abolition of the english real actions which took place nearly thirty years since was a public benefit, but still persons sensitive to the harmonies of jurisprudence will lament that, instead of cleansing, improving, and simplifying the true proprietary actions, we sacrificed them all to the possessory action of ejectment, thus basing our whole system of land recovery upon a legal fiction. legal tribunals have also powerfully assisted to shape and modify conceptions of proprietary right by means of the distinction between law and equity, which always makes its first appearance as a distinction between jurisdictions. equitable property in england is simply property held under the jurisdiction of the court of chancery. at rome, the prætor's edict introduced its novel principles in the guise of a promise that under certain circumstances a particular action or a particular plea would be granted; and, accordingly, the property _in bonis_, or equitable property, of roman law was property exclusively protected by remedies which had their source in the edict. the mechanism by which equitable rights were saved from being overridden by the claims of the legal owner was somewhat different in the two systems. with us their independence is secured by the injunction of the court of chancery. since however law and equity, while not as yet consolidated, were administered under the roman system by the same court, nothing like the injunction was required, and the magistrate took the simpler course of refusing to grant to the civil law owner those actions and pleas by which alone he could obtain the property that belonged in equity to another. but the practical operation of both systems was nearly the same. both, by means of a distinction in procedure, were able to preserve new forms of property in a sort of provisional existence, until the time should come when they were recognised by the whole law. in this way, the roman prætor gave an immediate right of property to the person who had acquired a res mancipi by mere delivery, without waiting for the ripening of usucapion. similarly he in time recognised an ownership in the mortgagee who had at first been a mere "bailee" or depositary, and in the emphyteuta, or tenant of land which was subject to a fixed perpetual rent. following a parallel line of progress, the english court of chancery created a special proprietorship for the mortgagor, for the cestui que trust, for the married woman who had the advantage of a particular kind of settlement, and for the purchaser who had not yet acquired a complete legal ownership. all these are examples in which forms of proprietory right, distinctly new, were recognised and preserved. but indirectly property has been affected in a thousand ways by equity both in england and at rome. into whatever corner of jurisprudence its authors pushed the powerful instrument in their command, they were sure to meet, and touch, and more or less materially modify the law of property. when in the preceding pages i have spoken of certain ancient legal distinctions and expedients as having powerfully affected the history of ownership, i must be understood to mean that the greatest part of their influence has arisen from the hints and suggestions of improvement infused by them into the mental atmosphere which was breathed by the fabricators of equitable systems. but to describe the influence of equity on ownership would be to write its history down to our own days. i have alluded to it principally because several esteemed contemporary writers have thought that in the roman severance of equitable from legal property we have the clue to that difference in the conception of ownership, which apparently distinguishes the law of the middle ages from the law of the roman empire. the leading characteristic of the feudal conception is its recognition of a double proprietorship, the superior ownership of the lord of the fief co-existing with the inferior property or estate of the tenant. now, this duplication of proprietary right looks, it is urged, extremely like a generalised form of the roman distribution of rights over property into _quiritarian_ or legal, and (to use a word of late origin) _bonitarian_ or equitable. gaius himself observes upon the splitting of _dominion_ into two parts as a singularity of roman law, and expressly contrasts it with the entire or allodial ownership to which other nations were accustomed. justinian, it is true, re-consolidated dominion into one, but then it was the partially reformed system of the western empire, and not justinian's jurisprudence, with which the barbarians were in contact during so many centuries. while they remained poised on the edge of the empire, it may well be that they learned this distinction, which afterwards bore remarkable fruit. in favour of this theory, it must at all events be admitted that the element of roman law in the various bodies of barbarian custom has been very imperfectly examined. the erroneous or insufficient theories which have served to explain feudalism resemble each other in their tendency to draw off attention from this particular ingredient in its texture. the older investigators, who have been mostly followed in this country, attached an exclusive importance to the circumstances of the turbulent period during which the feudal system grew to maturity; and in later times a new source of error has been added to those already existing, in that pride of nationality which has led german writers to exaggerate the completeness of the social fabric which their forefathers had built up before their appearance in the roman world. one or two english inquirers who looked in the right quarter for the foundations of the feudal system, failed nevertheless to conduct their investigations to any satisfactory result, either from searching too exclusively for analogies in the compilations of justinian, or from confining their attention to the compendia of roman law which are found appended to some of the extant barbarian codes. but, if roman jurisprudence had any influence on the barbarous societies, it had probably produced the greatest part of its effects before the legislation of justinian, and before the preparation of these compendia. it was not the reformed and purified jurisprudence of justinian, but the undigested system which prevailed in the western empire, and which the eastern _corpus juris_ never succeeded in displacing, that i conceive to have clothed with flesh and muscle the scanty skeleton of barbarous usage. the change must be supposed to have taken place before the germanic tribes had distinctly appropriated, as conquerors, any portion of the roman dominions, and therefore long before germanic monarchs had ordered breviaries of roman law to be drawn up for the use of their roman subjects. the necessity for some such hypothesis will be felt by everybody who can appreciate the difference between archaic and developed law. rude as are the _leges barbarorum_ which remain to us, they are not rude enough to satisfy the theory of their purely barbarous origin; nor have we any reason for believing that we have received, in written records, more than a fraction of the fixed rules which were practised among themselves by the members of the conquering tribes. if we can once persuade ourselves that a considerable element of debased roman law already existed in the barbarian systems, we shall have done something to remove a grave difficulty. the german law of the conquerors and the roman law of their subjects would not have combined if they had not possessed more affinity for each other than refined jurisprudence has usually for the customs of savages. it is extremely likely that the codes of the barbarians, archaic as they seem, are only a compound of true primitive usage with half-understood roman rules, and that it was the foreign ingredient which enabled them to coalesce with a roman jurisprudence that had already receded somewhat from the comparative finish which it had acquired under the western emperors. but, though all this must be allowed, there are several considerations which render it unlikely that the feudal form of ownership was directly suggested by the roman duplication of domainial rights. the distinction between legal and equitable property strikes one as a subtlety little likely to be appreciated by barbarians; and, moreover, it can scarcely be understood unless courts of law are contemplated in regular operation. but the strongest reason against this theory is the existence in roman law of a form of property--a creation of equity, it is true--which supplies a much simpler explanation of the transition from one set of ideas to the other. this is the emphyteusis, upon which the fief of the middle ages has often been fathered, though without much knowledge of the exact share which it had in bringing feudal ownership into the world. the truth is that the emphyteusis, not probably as yet known by its greek designation, marks one stage in a current of ideas which led ultimately to feudalism. the first mention in roman history of estates larger than could be farmed by a paterfamilias, with his household of sons and slaves, occurs when we come to the holdings of the roman patricians. these great proprietors appear to have had no idea of any system of farming by free tenants. their _latifundia_ seem to have been universally cultivated by slave-gangs, under bailiffs who were themselves slaves or freedmen; and the only organisation attempted appears to have consisted in dividing the inferior slaves into small bodies, and making them the _peculium_ of the better and trustier sort, who thus acquired a kind of interest in the efficiency of their labour. this system was, however, especially disadvantageous to one class of estated proprietors, the municipalities. functionaries in italy were changed with the rapidity which often surprises us in the administration of rome herself; so that the superintendence of a large landed domain by an italian corporation must have been excessively imperfect. accordingly, we are told that with the municipalities began the practice of letting out _agri vectigules_, that is, of leasing land for a perpetuity to a free tenant, at a fixed rent, and under certain conditions. the plan was afterwards extensively imitated by individual proprietors, and the tenant, whose relation to the owner had originally been determined by his contract, was subsequently recognised by the prætor as having himself a qualified proprietorship, which in time became known as an emphyteusis. from this point the history of tenure parts into two branches. in the course of that long period during which our records of the roman empire are most incomplete, the slave-gangs of the great roman families became transformed into the _coloni_, whose origin and situation constitute one of the obscurest questions in all history. we may suspect that they were formed partly by the elevation of the slaves, and partly by the degradation of the free farmers; and that they prove the richer classes of the roman empire to have become aware of the increased value which landed property obtains when the cultivator had an interest in the produce of the land. we know that their servitude was predial; that it wanted many of the characteristics of absolute slavery, and that they acquitted their service to the landlord in rendering to him a fixed portion of the annual crop. we know further that they survived all the mutations of society in the ancient and modern worlds. though included in the lower courses of the feudal structure, they continued in many countries to render to the landlord precisely the same dues which they had paid to the roman _dominus_, and from a particular class among them, the _coloni medietarii_ who reserved half the produce for the owner, are descended the _metayer_ tenantry, who still conduct the cultivation of the soil in almost all the south of europe. on the other hand, the emphyteusis, if we may so interpret the allusions to it in the _corpus juris_, became a favourite and beneficial modification of property; and it may be conjectured that wherever free farmers existed, it was this tenure which regulated their interest in the land. the prætor, as has been said, treated the emphyteuta as a true proprietor. when ejected, he was allowed to reinstate himself by a real action, the distinctive badge of proprietory right, and he was protected from disturbance by the author of his lease so long as the _canon_, or quit-rent, was punctually paid. but at the same time it must not be supposed that the ownership of the author of the lease was either extinct or dormant. it was kept alive by a power of re-entry on nonpayment of the rent, a right of pre-emption in case of sale, and a certain control over the mode of cultivation. we have, therefore, in the emphyteusis a striking example of the double ownership which characterised feudal property, and one, moreover, which is much simpler and much more easily imitated than the juxtaposition of legal and equitable rights. the history of the roman tenure does not end, however, at this point. we have clear evidence that between the great fortresses which, disposed along the line of the rhine and danube, long secured the frontier of the empire against its barbarian neighbours, there extended a succession of strips of land, the _agri limitrophi_, which were occupied by veteran soldiers of the roman army on the terms of an emphyteusis. there was a double ownership. the roman state was landlord of the soil, but the soldiers cultivated it without disturbance so long as they held themselves ready to be called out for military service whenever the state of the border should require it. in fact, a sort of garrison-duty, under a system closely resembling that of the military colonies on the austro-turkish border, had taken the place of the quit-rent which was the service of the ordinary emphyteuta. it seems impossible to doubt that this was the precedent copied by the barbarian monarchs who founded feudalism. it had been within their view for some hundred years, and many of the veterans who guarded the border were, it is to be remembered, themselves of barbarian extraction, who probably spoke the germanic tongues. not only does the proximity of so easily followed a model explain whence the frankish and lombard sovereigns got the idea of securing the military service of their followers by granting away portions of their public domain; but it perhaps explains the tendency which immediately showed itself in the benefices to become hereditary, for an emphyteusis, though capable of being moulded to the terms of the original contract, nevertheless descended as a general rule to the heirs of the grantee. it is true that the holder of a benefice, and more recently the lord of one of those fiefs into which the benefices were transformed, appears to have owed certain services which were not likely to have been rendered by the military colonist, and were certainly not rendered by the emphyteuta. the duty of respect and gratitude to the feudal superior, the obligation to assist in endowing his daughter and equipping his son, the liability to his guardianship in minority, and many other similar incidents of tenure, must have been literally borrowed from the relations of patron and freedman under roman law, that is, of quondam-master and quondam-slave. but then it is known that the earliest beneficiaries were the personal companions of the sovereign, and it is indisputable that this position, brilliant as it seems, was at first attended by some shade of servile debasement. the person who ministered to the sovereign in his court had given up something of that absolute personal freedom which was the proudest privilege of the allodial proprietor. chapter ix the early history of contract there are few general propositions concerning the age to which we belong which seem at first sight likely to be received with readier concurrence than the assertion that the society of our day is mainly distinguished from that of preceding generations by the largeness of the sphere which is occupied in it by contract. some of the phenomena on which this proposition rests are among those most frequently singled out for notice, for comment, and for eulogy. not many of us are so unobservant as not to perceive that in innumerable cases where old law fixed a man's social position irreversibly at his birth, modern law allows him to create it for himself by convention; and indeed several of the few exceptions which remain to this rule are constantly denounced with passionate indignation. the point, for instance, which is really debated in the vigorous controversy still carried on upon the subject of negro servitude, is whether the status of the slave does not belong to bygone institutions, and whether the only relation between employer and labourer which commends itself to modern morality be not a relation determined exclusively by contract. the recognition of this difference between past ages and the present enters into the very essence of the most famous contemporary speculations. it is certain that the science of political economy, the only department of moral inquiry which has made any considerable progress in our day, would fail to correspond with the facts of life if it were not true that imperative law had abandoned the largest part of the field which it once occupied, and had left men to settle rules of conduct for themselves with a liberty never allowed to them till recently. the bias indeed of most persons trained in political economy is to consider the general truth on which their science reposes as entitled to become universal, and, when they apply it as an art, their efforts are ordinarily directed to enlarging the province of contract and to curtailing that of imperative law, except so far as law is necessary to enforce the performance of contracts. the impulse given by thinkers who are under the influence of these ideas is beginning to be very strongly felt in the western world. legislation has nearly confessed its inability to keep pace with the activity of man in discovery, in invention, and in the manipulation of accumulated wealth; and the law even of the least advanced communities tends more and more to become a mere surface-stratum having under it an ever-changing assemblage of contractual rules with which it rarely interferes except to compel compliance with a few fundamental principles or unless it be called in to punish the violation of good faith. social inquiries, so far as they depend on the consideration of legal phenomena, are in so backward a condition that we need not be surprised at not finding these truths recognised in the commonplaces which pass current concerning the progress of society. these commonplaces answer much more to our prejudices than to our convictions. the strong disinclination of most men to regard morality as advancing seems to be especially powerful when the virtues on which contract depends are in question, and many of us have almost instinctive reluctance to admitting that good faith and trust in our fellows are more widely diffused than of old, or that there is anything in contemporary manners which parallels the loyalty of the antique world. from time to time, these prepossessions are greatly strengthened by the spectacle of frauds, unheard of before the period at which they were observed, and astonishing from their complication as well as shocking from criminality. but the very character of these frauds shows clearly that, before they became possible, the moral obligations of which they are the breach must have been more than proportionately developed. it is the confidence reposed and deserved by the many which affords facilities for the bad faith of the few, so that, if colossal examples of dishonesty occur, there is no surer conclusion than that scrupulous honesty is displayed in the average of the transactions which, in the particular case, have supplied the delinquent with his opportunity. if we insist on reading the history of morality as reflected in jurisprudence, by turning our eyes not on the law of contract but on the law of crime, we must be careful that we read it aright. the only form of dishonesty treated of in the most ancient roman law is theft. at the moment at which i write, the newest chapter in the english criminal law is one which attempts to prescribe punishment for the frauds of trustees. the proper inference from this contrast is not that the primitive romans practised a higher morality than ourselves. we should rather say that, in the interval between their days and ours, morality has advanced from a very rude to a highly refined conception--from viewing the rights of property as exclusively sacred, to looking upon the rights growing out of the mere unilateral reposal of confidence as entitled to the protection of the penal law. the definite theories of jurists are scarcely nearer the truth in this point than the opinions of the multitude. to begin with the views of the roman lawyers, we find them inconsistent with the true history of moral and legal progress. one class of contracts, in which the plighted faith of the contracting parties was the only material ingredient, they specifically denominated contracts _juris gentium_, and though these contracts were undoubtedly the latest born into the roman system, the expression employed implies, if a definite meaning be extracted from it, that they were more ancient than certain other forms of engagement treated of in roman law, in which the neglect of a mere technical formality was as fatal to the obligation as misunderstanding or deceit. but then the antiquity to which they were referred was vague, shadowy, and only capable of being understood through the present; nor was it until the language of the roman lawyers became the language of an age which had lost the key to their mode of thought that a "contract of the law of nations" came to be distinctly looked upon as a contract known to man in a state of nature. rousseau adopted both the juridical and the popular error. in the dissertation on the effects of art and science upon morals, the first of his works which attracted attention and the one in which he states most unreservedly the opinions which made him the founder of a sect, the veracity and good faith attributed to the ancient persians are repeatedly pointed out as traits of primitive innocence which have been gradually obliterated by civilisation; and at a later period he found a basis for all his speculations in the doctrine of an original social contract. the social contract or compact is the most systematic form which has ever been assumed by the error we are discussing. it is a theory which, though nursed into importance by political passions, derived all its sap from the speculations of lawyers. true it certainly is that the famous englishmen, for whom it had first had attraction, valued it chiefly for its political serviceableness, but, as i shall presently attempt to explain, they would never have arrived at it, if politicians had not long conducted their controversies in legal phraseology. nor were the english authors of the theory blind to that speculative amplitude which recommended it so strongly to the frenchmen who inherited it from them. their writings show they perceived that it could be made to account for all social, quite as well as for all political phenomena. they had observed the fact, already striking in their day, that of the positive rules obeyed by men, the greater part were created by contract, the lesser by imperative law. but they were ignorant or careless of the historical relation of these two constituents of jurisprudence. it was for the purpose, therefore, of gratifying their speculative tastes by attributing all jurisprudence to a uniform source, as much as with the view of eluding the doctrines which claimed a divine parentage for imperative law, that they devised the theory that all law had its origin in contract. in another stage of thought, they would have been satisfied to leave their theory in the condition of an ingenious hypothesis or a convenient verbal formula. but that age was under the dominion of legal superstitions. the state of nature had been talked about till it had ceased to be regarded as paradoxical, and hence it seemed easy to give a fallacious reality and definiteness to the contractual origin of law by insisting on the social compact as a historical fact. our own generation has got rid of these erroneous juridical theories, partly by outgrowing the intellectual state to which they belong, and partly by almost ceasing to theorise on such subjects altogether. the favourite occupation of active minds at the present moment, and the one which answers to the speculations of our forefathers on the origin of the social state, is the analysis of society as it exists and moves before our eyes; but, through omitting to call in the assistance of history, this analysis too often degenerates into an idle exercise of curiosity, and is especially apt to incapacitate the inquirer for comprehending states of society which differ considerably from that to which he is accustomed. the mistake of judging the men of other periods by the morality of our own day has its parallel in the mistake of supposing that every wheel and bolt in the modern social machine had its counterpart in more rudimentary societies. such impressions ramify very widely, and masque themselves very subtly, in historical works written in the modern fashion; but i find the trace of their presence in the domain of jurisprudence in the praise which is frequently bestowed on the little apologue of montesquieu concerning the troglodytes, inserted in the _lettres persanes_. the troglodytes were a people who systematically violated their contracts, and so perished utterly. if the story bears the moral which its author intended, and is employed to expose an anti-social heresy by which this century and the last have been threatened, it is most unexceptionable; but if the inference be obtained from it that society could not possibly hold together without attaching a sacredness to promises and agreements which should be on something like a par with the respect that is paid to them by a mature civilisation, it involves an error so grave as to be fatal to all sound understanding of legal history. the fact is that the troglodytes have flourished and founded powerful states with very small attention to the obligations of contract. the point which before all others has to be apprehended in the constitution of primitive societies is that the individual creates for himself few or no rights, and few or no duties. the rules which he obeys are derived first from the station into which he is born, and next from the imperative commands addressed to him by the chief of the household of which he forms part. such a system leaves the very smallest room for contract. the members of the same family (for so we may interpret the evidence) are wholly incapable of contracting with each other, and the family is entitled to disregard the engagements by which any one of its subordinate members has attempted to bind it. family, it is true, may contract with family, chieftain with chieftain, but the transaction is one of the same nature, and encumbered by as many formalities, as the alienation of property, and the disregard of one iota of the performance is fatal to the obligation. the positive duty resulting from one man's reliance on the word of another is among the slowest conquests of advancing civilisation. neither ancient law nor any other source of evidence discloses to us society entirely destitute of the conception of contract. but the conception, when it first shows itself, is obviously rudimentary. no trustworthy primitive record can be read without perceiving that the habit of mind which induces us to make good a promise is as yet imperfectly developed, and that acts of flagrant perfidy are often mentioned without blame and sometimes described with approbation. in the homeric literature, for instance, the deceitful cunning of ulysses appears as a virtue of the same rank with the prudence of nestor, the constancy of hector, and the gallantry of achilles. ancient law is still more suggestive of the distance which separates the crude form of contract from its maturity. at first, nothing is seen like the interposition of law to compel the performance of a promise. that which the law arms with its sanctions is not a promise, but a promise accompanied with a solemn ceremonial. not only are formalities of equal importance with the promise itself, but they are, if anything, of greater importance; for that delicate analysis which mature jurisprudence applies to the conditions of mind under which a particular verbal assent is given appears, in ancient law, to be transferred to the words and gestures of the accompanying performance. no pledge is enforced if a single form be omitted or misplaced, but, on the other hand, if the forms can be shown to have been accurately proceeded with, it is of no avail to plead that the promise was made under duress or deception. the transmutation of this ancient view into the familiar notion of a contract is plainly seen in the history of jurisprudence. first one or two steps in the ceremonial are dispensed with; then the others are simplified or permitted to be neglected on certain conditions; lastly, a few specific contracts are separated from the rest and allowed to be entered into without form, the selected contracts being those on which the activity and energy of social intercourse depends. slowly, but most distinctly, the mental engagement isolates itself amid the technicalities, and gradually becomes the sole ingredient on which the interest of the jurisconsult is concentrated. such a mental engagement, signified through external acts, the romans called a pact or convention; and when the convention has once been conceived as the nucleus of a contract, it soon becomes the tendency of advancing jurisprudence to break away the external shell of form and ceremony. forms are thenceforward only retained so far as they are guarantees of authenticity, and securities for caution and deliberation. the idea of a contract is fully developed, or, to employ the roman phrase, contracts are absorbed in pacts. the history of this course of change in roman law is exceedingly instructive. at the earliest dawn of the jurisprudence, the term in use for a contract was one which is very familiar to the students of historical latinity. it was _nexum_, and the parties to the contract were said to be _nexi_, expressions which must be carefully attended to on account of the singular durableness of the metaphor on which they are founded. the notion that persons under a contractual engagement are connected together by a strong _bond_ or _chain_, continued till the last to influence the roman jurisprudence of contract; and flowing thence it has mixed itself with modern ideas. what then was involved in this nexum or bond? a definition which has descended to us from one of the latin antiquarians describes _nexum_ as _omne quod geritur per æs et libram_, "every transaction with the copper and the balance," and these words have occasioned a good deal of perplexity. the copper and the balance are the well-known accompaniments of the mancipation, the ancient solemnity described in a former chapter, by which the right of ownership in the highest form of roman property was transferred from one person to another. mancipation was a _conveyance_, and hence has arisen the difficulty, for the definition thus cited appears to confound contracts and conveyances, which in the philosophy of jurisprudence are not simply kept apart, but are actually opposed to each other. the _jus in re_, right _in rem_, right "availing against all the world," or proprietary right, is sharply distinguished by the analyst of mature jurisprudence from the _jus ad rem_, right _in personam_, right "availing a single individual or group," or obligation. now conveyances transfer proprietary rights, contracts create obligations--how then can the two be included under the same name or same general conception? this, like many similar embarrassments, has been occasioned by the error of ascribing to the mental condition of an unformed society a faculty which pre-eminently belongs to an advanced stage of intellectual development, the faculty of distinguishing in speculation ideas which are blended in practice. we have indications not to be mistaken of a state of social affairs in which conveyances and contracts were practically confounded; nor did the discrepance of the conceptions become perceptible till men had begun to adopt a distinct practice in contracting and conveying. it may here be observed that we know enough of ancient roman law to give some idea of the mode of transformation followed by legal conceptions and by legal phraseology in the infancy of jurisprudence. the change which they undergo appears to be a change from general to special; or, as we might otherwise express it, the ancient conceptions and the ancient terms are subjected to a process of gradual specialisation. an ancient legal conception corresponds not to one but to several modern conceptions. an ancient technical expression serves to indicate a variety of things which in modern law have separate names allotted to them. if however we take up the history of jurisprudence at the next stage, we find that the subordinate conceptions have gradually disengaged themselves and that the old general names are giving way to special appellations. the old general conception is not obliterated, but it has ceased to cover more than one or a few of the notions which it first included. so too the old technical name remains, but it discharges only one of the functions which it once performed. we may exemplify this phenomenon in various ways. patriarchal power of all sorts appears, for instance, to have been once conceived as identical in character, and it was doubtless distinguished by one name. the power exercised by the ancestor was the same whether it was exercised over the family or the material property--over flocks, herds, slaves, children, or wife. we cannot be absolutely certain of its old roman name, but there is very strong reason for believing, from the number of expressions indicating shades of the notion of _power_ into which the word _manus_ enters, that the ancient general term was _manus_. but, when roman law has advanced a little, both the name and the idea have become specialised. power is discriminated, both in word and in conception, according to the object over which it is exerted. exercised over material commodities or slaves, it has become _dominium_--over children, it is _potestas_--over free persons whose services have been made away to another by their own ancestor, it is _mancipium_--over a wife, it is still _manus_. the old word, it will be perceived, has not altogether fallen into desuetude, but is confined to one very special exercise of the authority it had formerly denoted. this example will enable us to comprehend the nature of the historical alliance between contracts and conveyances. there seems to have been one solemn ceremonial at first for all solemn transactions, and its name at rome appears to have been _nexum_. precisely the same forms which were in use when a conveyance of property was effected seem to have been employed in the making of a contract. but we have not very far to move onwards before we come to a period at which the notion of a contract has disengaged itself from the notion of a conveyance. a double change has thus taken place. the transaction "with the copper and the balance," when intended to have for its office the transfer of property, is known by the new and special name of mancipation. the ancient nexum still designates the same ceremony, but only when it is employed for the special purpose of solemnising a contract. when two or three legal conceptions are spoken of as anciently blended in one, it is not intended to imply that some one of the included notions may not be older than the others, or, when those others have been formed, may not greatly predominate over and take precedence over them. the reason why one legal conception continues so long to cover several conceptions, and one technical phrase to do instead of several, is doubtless that practical changes are accomplished in the law of primitive societies long before men see occasion to notice or name them. though i have said that patriarchal power was not at first distinguished according to the objects over which it was exercised, i feel sure that power over children was the root of the old conception of power; and i cannot doubt that the earliest use of the nexum, and the one primarily regarded by those who resorted to it, was to give proper solemnity to the alienation of property. it is likely that a very slight perversion of the nexum from its original functions first gave rise to its employment in contracts, and that the very slightness of the change long prevented its being appreciated or noticed. the old name remained because men had not become conscious that they wanted a new one; the old notion clung to the mind because nobody had seen reason to be at the pains of examining it. we have had the process clearly exemplified in the history of testaments. a will was at first a simple conveyance of property. it was only the enormous practical difference that gradually showed itself between this particular conveyance and all others which caused it to be regarded separately, and even as it was, centuries elapsed before the ameliorators of law cleared away the useless encumbrance of the nominal mancipation, and consented to care for nothing in the will but the expressed intentions of the testator. it is unfortunate that we cannot track the early history of contracts with the same absolute confidence as the early history of wills, but we are not quite without hints that contracts first showed themselves through the _nexum_ being put to a new use and afterwards obtained recognition as distinct transactions through the important practical consequences of the experiment. there is some, but not very violent, conjecture in the following delineation of the process. let us conceive a sale for ready money as the normal type of the nexum. the seller brought the property of which he intended to dispose--a slave, for example--the purchaser attended with the rough ingots of copper which served for money--and an indispensable assistant, the _libripens_, presented himself with a pair of scales. the slave with certain fixed formalities was handed over to the vendee--the copper was weighed by the _libripens_ and passed to the vendor. so long as the business lasted it was a _nexum_, and the parties were _nexi_; but the moment it was completed, the _nexum_ ended, and the vendor and purchaser ceased to bear the name derived from their momentary relation. but now, let us move a step onward in commercial history. suppose the slave transferred, but the money not paid. in _that_ case, the _nexum_ is finished, so far as the seller is concerned, and when he has once handed over his property, he is no longer _nexus_; but, in regard to the purchaser, the _nexum_ continues. the transaction, as to his part of it, is incomplete, and he is still considered to be _nexus_. it follows, therefore, that the same term described the conveyance by which the right of property was transmitted, and the personal obligation of the debtor for the unpaid purchase-money. we may still go forward, and picture to ourselves a proceeding wholly formal, in which _nothing_ is handed over and _nothing_ paid; we are brought at once to a transaction indicative of much higher commercial activity, an _executory contract of sale_. if it be true that, both in the popular and in the professional view, a _contract_ was long regarded as an _incomplete conveyance_, the truth has importance for many reasons. the speculations of the last century concerning mankind in a state of nature, are not unfairly summed up in the doctrine that "in the primitive society property was nothing, and obligation everything;" and it will now be seen that, if the proposition were reversed, it would be nearer the reality. on the other hand, considered historically, the primitive association of conveyances and contracts explains something which often strikes the scholar and jurist as singularly enigmatical, i mean the extraordinary and uniform severity of very ancient systems of law to _debtors_, and the extravagant powers which they lodge with _creditors_. when once we understand that the _nexum_ was artificially prolonged to give time to the debtor, we can better comprehend his position in the eye of the public and of the law. his indebtedness was doubtless regarded as an anomaly, and suspense of payment in general as an artifice and a distortion of strict rule. the person who had duly consummated his part in the transaction must, on the contrary, have stood in peculiar favour; and nothing would seem more natural than to arm him with stringent facilities for enforcing the completion of a proceeding which, of strict right, ought never to have been extended or deferred. nexum, therefore, which originally signified a conveyance of property, came insensibly to denote a contract also, and ultimately so constant became the association between this word and the notion of a contract, that a special term, mancipium or mancipatio, had to be used for the purpose of designating the true nexum or transaction in which the property was really transferred. contracts are therefore now severed from conveyances, and the first stage in their history is accomplished, but still they are far enough from that epoch of their development when the promise of the contractor has a higher sacredness than the formalities with which it is coupled. in attempting to indicate the character of the changes passed through in this interval, it is necessary to trespass a little on a subject which lies properly beyond the range of these pages, the analysis of agreement effected by the roman jurisconsults. of this analysis, the most beautiful monument of their sagacity, i need not say more than that it is based on the theoretical separation of the obligation from the convention or pact. bentham and mr. austin have laid down that the "two main essentials of a contract are these: first, a signification by the promising party of his _intention_ to do the acts or to observe the forbearances which he promises to do or to observe. secondly, a signification by the promisee that he _expects_ the promising party will fulfil the proffered promise." this is virtually identical with the doctrine of the roman lawyers, but then, in their view, the result of these "significations" was not a contract, but a convention or pact. a pact was the utmost product of the engagements of individuals agreeing among themselves, and it distinctly fell short of a contract. whether it ultimately became a contract depended on the question whether the law annexed an obligation to it. a contract was a pact (or convention) _plus_ an obligation. so long as the pact remained unclothed with the obligation, it was called _nude_ or _naked_. what was an obligation? it is defined by the roman lawyers as "juris vinculum, quo necessitate adstringimur alicujus solvendæ rei." this definition connects the obligation with the nexum through the common metaphor on which they are founded, and shows us with much clearness the pedigree of a peculiar conception. the obligation is the "bond" or "chain" with which the law joins together persons or groups of persons, in consequence of certain voluntary acts. the acts which have the effect of attracting an obligation are chiefly those classed under the heads of contract and delict, of agreement and wrong; but a variety of other acts have a similar consequence which are not capable of being comprised in an exact classification. it is to be remarked, however, that the act does not draw to itself the obligation in consequence of any moral necessity; it is the law which annexes it in the plenitude of its power, a point the more necessary to be noted, because a different doctrine has sometimes been propounded by modern interpreters of the civil law who had moral or metaphysical theories of their own to support. the image of a _vinculum juris_ colours and pervades every part of the roman law of contract and delict. the law bound the parties together, and the _chain_ could only be undone by the process called _solutio_, an expression still figurative, to which our word "payment" is only occasionally and incidentally equivalent. the consistency with which the figurative image was allowed to present itself, explains an otherwise puzzling peculiarity of roman legal phraseology, the fact that "obligation" signified rights as well as duties, the right, for example, to have a debt paid as well as the duty of paying it. the romans kept in fact the entire picture of the "legal chain" before their eyes, and regarded one end of it no more and no less than the other. in the developed roman law, the convention, as soon as it was completed, was, in almost all cases, at once crowned with the obligation, and so became a contract; and this was the result to which contract-law was surely tending. but for the purpose of this inquiry, we must attend particularly to the intermediate stage--that in which something more than a perfect agreement was required to attract the obligation. this epoch is synchronous with the period at which the famous roman classification of contracts into four sorts--the verbal, the literal, the real, and the consensual--had come into use, and during which these four orders of contracts constituted the only descriptions of engagement which the law would enforce. the meaning of the fourfold distribution is readily understood as soon as we apprehend the theory which severed the obligation from the convention. each class of contracts was in fact named from certain formalities which were required over and above the mere agreement of the contracting parties. in the verbal contract, as soon as the convention was effected, a form of words had to be gone through before the vinculum juris was attached to it. in the literal contract, an entry in a ledger or table-book had the effect of clothing the convention with the obligation, and the same result followed, in the case of the real contract, from the delivery of the res or thing which was the subject of the preliminary engagement. the contracting parties came, in short, to an understanding in each case; but, if they went no further, they were not _obliged_ to one another, and could not compel performance or ask redress for a breach of faith. but let them comply with certain prescribed formalities, and the contract was immediately complete, taking its name from the particular form which it had suited them to adopt. the exceptions to this practice will be noticed presently. i have enumerated the four contracts in their historical order, which order, however, the roman institutional writers did not invariably follow. there can be no doubt that the verbal contract was the most ancient of the four, and that it is the eldest known descendant of the primitive nexum. several species of verbal contract were anciently in use, but the most important of all, and the only one treated of by our authorities, was effected by means of a _stipulation_, that is, a question and answer; a question addressed by the person who exacted the promise, and an answer given by the person who made it. this question and answer constituted the additional ingredient which, as i have just explained, was demanded by the primitive notion over and above the mere agreement of the persons interested. they formed the agency by which the obligation was annexed. the old nexum has now bequeathed to maturer jurisprudence first of all the conception of a chain uniting the contracting parties, and this has become the obligation. it has further transmitted the notion of a ceremonial accompanying and consecrating the engagement, and this ceremonial has been transmuted into the stipulation. the conversion of the solemn conveyance, which was the prominent feature of the original nexum, into a mere question and answer, would be more of a mystery than it is if we had not the analogous history of roman testaments to enlighten us. looking to that history, we can understand how the formal conveyance was first separated from the part of the proceeding which had immediate reference to the business in hand, and how afterwards it was omitted altogether. as then the question and answer of the stipulation were unquestionably the nexum in a simplified shape, we are prepared to find that they long partook of the nature of a technical form. it would be a mistake to consider them as exclusively recommending themselves to the older roman lawyers through their usefulness in furnishing persons meditating an agreement with an opportunity for consideration and reflection. it is not to be disputed that they had a value of this kind, which was gradually recognised; but there is proof that their function in respect to contracts was at first formal and ceremonial in the statement of our authorities, that not every question and answer was of old sufficient to constitute a stipulation, but only a question and answer couched in technical phraseology specially appropriated to the particular occasion. but although it is essential for the proper appreciation of the history of contract-law that the stipulation should be understood to have been looked upon as a solemn form before it was recognised as a useful security, it would be wrong on the other hand to shut our eyes to its real usefulness. the verbal contract, though it had lost much of its ancient importance, survived to the latest period of roman jurisprudence; and we may take it for granted that no institution of roman law had so extended a longevity unless it served some practical advantage. i observe in an english writer some expressions of surprise that the romans even of the earliest times were content with so meagre a protection against haste and irreflection. but on examining the stipulation closely, and remembering that we have to do with a state of society in which written evidence was not easily procurable, i think we must admit that this question and answer, had it been expressly devised to answer the purpose which it served, would have been justly designated a highly ingenious expedient. it was the _promisee_ who, in the character of stipulator, put all the terms of the contract into the form of a question, and the answer was given by the _promisor_. "do you promise that you will deliver me such and such a slave, at such and such a place, on such and such a day?" "i do promise." now, if we reflect for a moment, we shall see that this obligation to put the promise interrogatively inverts the natural position of the parties, and, by effectually breaking the tenor of the conversation, prevents the attention from gliding over a dangerous pledge. with us, a verbal promise is, generally speaking, to be gathered exclusively from the words of the promisor. in old roman law, another step was absolutely required; it was necessary for the promisee, after the agreement had been made, to sum up all its terms in a solemn interrogation; and it was of this interrogation, of course, and of the assent to it, that proof had to be given at the trial--_not_ of the promise, which was not in itself binding. how great a difference this seemingly insignificant peculiarity may make in the phraseology of contract-law is speedily realised by the beginner in roman jurisprudence, one of whose first stumbling-blocks is almost universally created by it. when we in english have occasion, in mentioning a contract, to connect it for convenience' sake with one of the parties--for example, if we wished to speak generally of a contractor--it is always the _promisor_ at whom our words are pointing. but the general language of roman law takes a different turn; it always regards the contract, if we may so speak, from the point of view of the _promisee_; in speaking of a party to a contract, it is always the stipulator, the person who asks the question, who is primarily alluded to. but the serviceableness of the stipulation is most vividly illustrated by referring to the actual examples in the pages of the latin comic dramatists. if the entire scenes are read down in which these passages occur (ex. gra. plautus, _pseudolus_, act i. sc. i; act iv. sc. 6; _trinummus_, act v. sc. 2), it will be perceived how effectually the attention of the person meditating the promise must have been arrested by the question, and how ample was the opportunity for withdrawal from an improvident undertaking. in the literal or written contract, the formal act, by which an obligation was superinduced on the convention, was an entry of the sum due, where it could be specifically ascertained, on the debit side of a ledger. the explanation of this contract turns on a point of roman domestic manners, the systematic character and exceeding regularity of bookkeeping in ancient times. there are several minor difficulties of old roman law, as, for example, the nature of the slave's peculium, which are only cleared up when we recollect that a roman household consisted of a number of persons strictly accountable to its head, and that every single item of domestic receipt and expenditure, after being entered in waste books, was transferred at stated periods to a general household ledger. there are some obscurities, however, in the descriptions we have received of the literal contract, the fact being that the habit of keeping books ceased to be universal in later times, and the expression "literal contract" came to signify a form of engagement entirely different from that originally understood. we are not, therefore, in a position to say, with respect to the primitive literal contract, whether the obligation was created by a simple entry on the part of the creditor, or whether the consent of the debtor or a corresponding entry in his own books was necessary to give it legal effect. the essential point is however established that, in the case of this contract, all formalities were dispensed with on a condition being complied with. this is another step downwards in the history of contract-law. the contract which stands next in historical succession, the real contract, shows a great advance in ethical conceptions. whenever any agreement had for its object the delivery of a specific thing--and this is the case with the large majority of simple engagements--the obligation was drawn down as soon as the delivery had actually taken place. such a result must have involved a serious innovation on the oldest ideas of contract; for doubtless, in the primitive times, when a contracting party had neglected to clothe his agreement in a stipulation, nothing done in pursuance of the agreement would be recognised by the law. a person who had paid over money on loan would be unable to sue for its repayment unless he had formally _stipulated_ for it. but, in the real contract, performance on one side is allowed to impose a legal duty on the other--evidently on ethical grounds. for the first time then moral considerations appear as an ingredient in contract-law, and the real contract differs from its two predecessors in being founded on these, rather than on respect for technical forms or on deference to roman domestic habits. we now reach the fourth class, or consensual contracts, the most interesting and important of all. four specified contracts were distinguished by this name: mandatum, _i.e._ commission or agency; societas or partnership; emtio venditio or sale; and locatio conductio or letting and hiring. a few pages ago, after stating that a contract consisted of a pact or convention to which an obligation had been superadded, i spoke of certain acts or formalities by which the law permitted the obligation to be attracted to the pact. i used this language on account of the advantage of a general expression, but it is not strictly correct unless it be understood to include the negative as well as the positive. for, in truth, the peculiarity of these consensual contracts is that _no_ formalities, are required to create them out of the pact. much that is indefensible, and much more that is obscure, has been written about the consensual contracts, and it has even been asserted that in them the _consent_ of the parties is more emphatically given than in any other species of agreement. but the term consensual merely indicates that the obligation is here annexed at once to the _consensus_. the consensus, or mutual assent of the parties, is the final and crowning ingredient in the convention, and it is the special characteristic of agreements falling under one of the four heads of sale, partnership, agency, and hiring, that, as soon as the assent of the parties has supplied this ingredient, there is _at once_ a contract. the consensus draws with it the obligation, performing, in transactions of the sort specified, the exact functions which are discharged, in the other contracts, by the _res_ or thing, by the _verba_ stipulationis, and by the _literæ_ or written entry in a ledger. consensual is therefore a term which does not involve the slightest anomaly, but is exactly analogous to real, verbal, and literal. in the intercourse of life the commonest and most important of all the contracts are unquestionably the four styled consensual. the larger part of the collective existence of every community is consumed in transactions of buying and selling, of letting and hiring, of alliances between men for purposes of business, of delegation of business from one man to another; and this is no doubt the consideration which led the romans, as it has led most societies, to relieve these transactions from technical incumbrance, to abstain as much as possible from clogging the most efficient springs of social movement. such motives were not of course confined to rome, and the commerce of the romans with their neighbours must have given them abundant opportunities for observing that the contracts before us tended everywhere to become _consensual_, obligatory on the mere signification of mutual assent. hence, following their usual practice, they distinguished these contracts as contracts _juris gentium_. yet i do not think that they were so named at a very early period. the first notions of a jus gentium may have been deposited in the minds of the roman lawyers long before the appointment of a prætor peregrinus, but it would only be through extensive and regular trade that they would be familiarised with the contractual system of other italian communities, and such a trade would scarcely attain considerable proportions before italy had been thoroughly pacified, and the supremacy of rome conclusively assured. although, however, there is strong probability that the consensual contracts were the latest-born into the roman system, and though it is likely that the qualification, _juris gentium_, stamps the recency of their origin, yet this very expression, which attributes them to the "law of nations," has in modern times produced the notion of their extreme antiquity. for, when the "law of nations" had been converted into the "law of nature," it seemed to be implied that the consensual contracts were the type of the agreements most congenial to the natural state; and hence arose the singular belief that the younger the civilisation, the simpler must be its forms of contract. the consensual contracts, it will be observed, were extremely limited in number. but it cannot be doubted that they constituted the stage in the history of contract-law from which all modern conceptions of contract took their start. the motion of the will which constitutes agreement was now completely insulated, and became the subject of separate contemplation; forms were entirely eliminated from the notion of contract, and external acts were only regarded as symbols of the internal act of volition. the consensual contracts had, moreover, been classed in the jus gentium, and it was not long before this classification drew with it the inference that they were the species of agreement which represented the engagements approved of by nature and included in her code. this point once reached, we are prepared for several celebrated doctrines and distinctions of the roman lawyers. one of them is the distinction between natural and civil obligations. when a person of full intellectual maturity had deliberately bound himself by an engagement, he was said to be under a _natural obligation_, even though he had omitted some necessary formality, and even though through some technical impediment he was devoid of the formal capacity for making a valid contract. the law (and this is what the distinction implies) would not enforce the obligation, but it did not absolutely refuse to recognise it; and _natural obligations_ differed in many respects from obligations which were merely null and void, more particularly in the circumstance that they could be civilly confirmed, if the capacity for contract were subsequently acquired. another very peculiar doctrine of the jurisconsults could not have had its origin earlier than the period at which the convention was severed from the technical ingredients of contract. they taught that though nothing but a contract could be the foundation of an _action_, a mere pact or convention could be the basis of a _plea_. it followed from this, that though nobody could sue upon an agreement which he had not taken the precaution to mature into a contract by complying with the proper forms, nevertheless a claim arising out of a valid contract could be rebutted by proving a counter-agreement which had never got beyond the state of a simple convention. an action for the recovery of a debt could be met by showing a mere informal agreement to waive or postpone the payment. the doctrine just stated indicates the hesitation of the prætors in making their advances towards the greatest of their innovations. their theory of natural law must have led them to look with especial favour on the consensual contracts and on those pacts or conventions of which the consensual contracts were only particular instances; but they did not at once venture on extending to all conventions the liberty of the consensual contracts. they took advantage of that special superintendence over procedure which had been confided to them since the first beginnings of roman law, and, while they still declined to permit a suit to be launched which was not based on a formal contract, they gave full play to their new theory of agreement in directing the ulterior stages of the proceeding. but, when they had proceeded thus far, it was inevitable that they should proceed farther. the revolution of the ancient law of contract was consummated when the prætor of some one year announced in his edict that he would grant equitable actions upon pacts which had never been matured at all into contracts, provided only that the pacts in question had been founded on a consideration (_causa_). pacts of this sort are always enforced under the advanced roman jurisprudence. the principle is merely the principle of the consensual contract carried to its proper consequence; and, in fact, if the technical language of the romans had been as plastic as their legal theories, these pacts enforced by the prætor would have been styled new contracts, new consensual contracts. legal phraseology is, however, the part of the law which is the last to alter, and the pacts equitably enforced continued to be designated simply prætorian pacts. it will be remarked that unless there were consideration for the pact, it would continue _nude_ so far as the new jurisprudence was concerned; in order to give it effect, it would be necessary to convert it by a stipulation into a verbal contract. the extreme importance of this history of contract, as a safeguard against almost innumerable delusions, must be my justification for discussing it at so considerable a length. it gives a complete account of the march of ideas from one great landmark of jurisprudence to another. we begin with nexum, in which a contract and a conveyance are blended, and in which the formalities which accompany the agreement are even more important than the agreement itself. from the nexum we pass to the stipulation, which is a simplified form of the older ceremonial. the literal contract comes next, and here all formalities are waived, if proof of the agreement can be supplied from the rigid observances of a roman household. in the real contract a moral duty is for the first time recognised, and persons who have joined or acquiesced in the partial performance of an engagement are forbidden to repudiate it on account of defects in form. lastly, the consensual contracts emerge, in which the mental attitude of the contractors is solely regarded, and external circumstances have no title to notice except as evidence of the inward undertaking. it is of course uncertain how far this progress of roman ideas from a gross to a refined conception exemplifies the necessary progress of human thought on the subject of contract. the contract-law of all other ancient societies but the roman is either too scanty to furnish information, or else is entirely lost; and modern jurisprudence is so thoroughly leavened with the roman notions that it furnishes us with no contrasts or parallels from which instruction can be gleaned. from the absence, however, of everything violent, marvellous, or unintelligible in the changes i have described, it may be reasonably believed that the history of ancient roman contracts is, up to a certain point, typical of the history of this class of legal conceptions in other ancient societies. but it is only up to a certain point that the progress of roman law can be taken to represent the progress of other systems of jurisprudence. the theory of natural law is exclusively roman. the notion of the _vinculum juris_, so far as my knowledge extends, is exclusively roman. the many peculiarities of the mature roman law of contract and delict which are traceable to these two ideas, whether singly or in combination, are therefore among the exclusive products of one particular society. these later legal conceptions are important, not because they typify the necessary results of advancing thought under all conditions, but because they have exercised perfectly enormous influence on the intellectual diathesis of the modern world. i know nothing more wonderful than the variety of sciences to which roman law, roman contract-law more particularly, has contributed modes of thought, courses of reasoning, and a technical language. of the subjects which have whetted the intellectual appetite of the moderns, there is scarcely one, except physics, which has not been filtered through roman jurisprudence. the science of pure metaphysics had, indeed, rather a greek than a roman parentage, but politics, moral philosophy, and even theology, found in roman law not only a vehicle of expression, but a nidus in which some of their profoundest inquiries were nourished into maturity. for the purpose of accounting for this phenomenon, it is not absolutely necessary to discuss the mysterious relation between words and ideas, or to explain how it is that the human mind has never grappled with any subject of thought, unless it has been provided beforehand with a proper store of language and with an apparatus of appropriate logical methods. it is enough to remark, that, when the philosophical interests of the eastern and western worlds were separated, the founders of western thought belonged to a society which spoke latin and reflected in latin. but in the western provinces the only language which retained sufficient precision for philosophical purposes was the language of roman law, which by a singular fortune had preserved nearly all the purity of the augustan age, while vernacular latin was degenerating into a dialect of portentous barbarism. and if roman jurisprudence supplied the only means of exactness in speech, still more emphatically did it furnish the only means of exactness, subtlety, or depth in thought. for at least three centuries, philosophy and science were without a home in the west; and though metaphysics and metaphysical theology were engrossing the mental energies of multitudes of roman subjects, the phraseology employed in these ardent inquiries was exclusively greek, and their theatre was the eastern half of the empire. sometimes, indeed, the conclusions of the eastern disputants became so important that every man's assent to them, or dissent from them, had to be recorded, and then the west was introduced to the results of eastern controversy, which it generally acquiesced in without interest and without resistance. meanwhile, one department of inquiry, difficult enough for the most laborious, deep enough for the most subtle, delicate enough for the most refined, had never lost its attractions for the educated classes of the western provinces. to the cultivated citizen of africa, of spain, of gaul and of northern italy, it was jurisprudence, and jurisprudence only, which stood in the place of poetry and history, of philosophy and science. so far then from there being anything mysterious in the palpably legal complexion of the earliest efforts of western thought it would rather be astonishing if it had assumed any other hue. i can only express my surprise at the scantiness of the attention which has been given to the difference between western ideas and eastern, between western theology and eastern, caused by the presence of a new ingredient. it is precisely because the influence of jurisprudence begins to be powerful that the foundation of constantinople and the subsequent separation of the western empire from the eastern, are epochs in philosophical history. but continental thinkers are doubtless less capable of appreciating the importance of this crisis by the very intimacy with which notions derived from roman law are mingled up with every-day ideas. englishmen, on the other hand, are blind to it through the monstrous ignorance to which they condemn themselves of the most plentiful source of the stream of modern knowledge, of the one intellectual result of the roman civilisation. at the same time, an englishman, who will be at the pains to familiarise himself with the classical roman law, is perhaps, from the very slightness of the interest which his countrymen have hitherto taken in the subject, a better judge than a frenchman or a german of the value of the assertions i have ventured to make. anybody who knows what roman jurisprudence is, as actually practised by the romans, and who will observe in what characteristics the earliest western theology and philosophy differ from the phases of thought which preceded them, may be safely left to pronounce what was the new element which had begun to pervade and govern speculation. the part of roman law which has had most extensive influence on foreign subjects of inquiry has been the law of obligation, or what comes nearly to the same thing, of contract and delict. the romans themselves were not unaware of the offices which the copious and malleable terminology belonging to this part of their system might be made to discharge, and this is proved by their employment of the peculiar adjunct _quasi_ in such expressions as quasi-contract and quasi-delict. "quasi," so used, is exclusively a term of classification. it has been usual with english critics to identify the quasi-contracts with _implied_ contracts, but this is an error, for implied contracts are true contracts, which quasi-contracts are not. in implied contracts, acts and circumstances are the symbols of the same ingredients which are symbolised, in express contracts, by words; and whether a man employs one set of symbols or the other must be a matter of indifference so far as concerns the theory of agreement. but a quasi-contract is not a contract at all. the commonest sample of the class is the relation subsisting between two persons one of whom has paid money to the other through mistake. the law, consulting the interests of morality, imposes an obligation on the receiver to refund, but the very nature of the transaction indicates that it is not a contract, inasmuch as the convention, the most essential ingredient of contract, is wanting. this word "quasi," prefixed to a term of roman law, implies that the conception to which it serves as an index is connected with the conception with which the comparison is instituted by a strong superficial analogy or resemblance. it does not denote that the two conceptions are the same or that they belong to the same genus. on the contrary, it negatives the notion of an identity between them; but it points out that they are sufficiently similar for one to be classed as the sequel to the other, and that the phraseology taken from one department of law may be transferred to the other and employed without violent straining in the statement of rules which would otherwise be imperfectly expressed. it has been shrewdly remarked, that the confusion between implied contracts, which are true contracts, and quasi contracts, which are not contracts at all, has much in common with the famous error which attributed political rights and duties to an original compact between the governed and the governor. long before this theory had clothed itself in definite shape, the phraseology of roman contract-law had been largely drawn upon to describe that reciprocity of rights and duties which men had always conceived as existing between sovereigns and subjects. while the world was full of maxims setting forth with the utmost positiveness the claims of kings to implicit obedience--maxims which pretended to have had their origin in the new testament, but which were really derived from indelible recollections of the cæsarian despotism--the consciousness of correlative rights possessed by the governed would have been entirely without the means of expression if the roman law of obligation had not supplied a language capable of shadowing forth an idea which was as yet imperfectly developed. the antagonism between the privileges of kings and their duties to their subjects was never, i believe, lost sight of since western history began, but it had interest for few except speculative writers so long as feudalism continued in vigour, for feudalism effectually controlled by express customs the exorbitant theoretical pretensions of most european sovereigns. it is notorious, however, that as soon as the decay of the feudal system had thrown the mediæval constitutions out of working order, and when the reformation had discredited the authority of the pope, the doctrine of the divine right of kings rose immediately into an importance which had never before attended it. the vogue which it obtained entailed still more constant resort to the phraseology of roman law, and a controversy which had originally worn a theological aspect assumed more and more the air of a legal disputation. a phenomenon then appeared which has repeatedly shown itself in the history of opinion. just when the argument for monarchical authority rounded itself into the definite doctrine of filmer, the phraseology, borrowed from the law of contract, which had been used in defence of the rights of subjects, crystallised into the theory of an actual original compact between king and people, a theory which, first in english and afterwards, and more particularly, in french hands, expanded into a comprehensive explanation of all the phenomena of society and law. but the only real connection between political and legal science had consisted in the last giving to the first the benefit of its peculiarly plastic terminology. the roman jurisprudence of contract had performed for the relation of sovereign and subject precisely the same service which, in a humbler sphere, it rendered to the relation of persons bound together by an obligation of "quasi-contract." it had furnished a body of words and phrases which approximated with sufficient accuracy to the ideas which then were from time to time forming on the subject of political obligation. the doctrine of an original compact can never be put higher than it is placed by dr. whewell, when he suggests that, though unsound, "it may be a _convenient_ form for the expression of moral truths." the extensive employment of legal language on political subjects previously to the invention of the original compact, and the powerful influence which that assumption has exercised subsequently, amply account for the plentifulness in political science of words and conceptions, which were the exclusive creation of roman jurisprudence. of their plentifulness in moral philosophy a rather different explanation must be given, inasmuch as ethical writings have laid roman law under contribution much more directly than political speculations, and their authors have been much more conscious of the extent of their obligation. in speaking of moral philosophy as extraordinarily indebted to roman jurisprudence, i must be understood to intend moral philosophy as understood previously to the break in its history effected by kant, that is, as the science of the rules governing human conduct, of their proper interpretation and of the limitations to which they are subject. since the rise of the critical philosophy, moral science has almost wholly lost its older meaning, and, except where it is preserved under a debased form in the casuistry still cultivated by roman catholic theologians, it seems to be regarded nearly universally as a branch of ontological inquiry. i do not know that there is a single contemporary english writer, with the exception of dr. whewell, who understands moral philosophy as it was understood before it was absorbed by metaphysics and before the groundwork of its rules came to be a more important consideration than the rules themselves. so long, however, as ethical science had to do with the practical regimen of conduct, it was more or less saturated with roman law. like all the great subjects of modern thought, it was originally incorporated with theology. the science of moral theology, as it was at first called, and as it is still designated by the roman catholic divines, was undoubtedly constructed, to the full knowledge of its authors, by taking principles of conduct from the system of the church, and by using the language and methods of jurisprudence for their expression and expansion. while this process went on, it was inevitable that jurisprudence, though merely intended to be the vehicle of thought, should communicate its colour to the thought itself. the tinge received through contact with legal conceptions is perfectly perceptible in the earliest ethical literature of the modern world, and it is evident, i think, that the law of contract, based as it is on the complete reciprocity and indissoluble connection of rights and duties, has acted as a wholesome corrective to the predispositions of writers who, if left to themselves, might have exclusively viewed a moral obligation as the public duty of a citizen in the civitas dei. but the amount of roman law in moral theology becomes sensibly smaller at the time of its cultivation by the great spanish moralists. moral theology, developed by the juridical method of doctor commenting on doctor, provided itself with a phraseology of its own, and aristotelian peculiarities of reasoning and expression, imbibed doubtless in great part from the disputations on morals in the academical schools, take the place of that special turn of thought and speech which can never be mistaken by any person conversant with the roman law. if the credit of the spanish school of moral theologians had continued, the juridical ingredient in ethical science would have been insignificant, but the use made of their conclusions by the next generation of roman catholic writers on these subjects almost entirely destroyed their influence. moral theology, degraded into casuistry, lost all interest for the leaders of european speculation; and the new science of moral philosophy, which was entirely in the hands of the protestants, swerved greatly aside from the path which the moral theologians had followed. the effect was vastly to increase the influence of roman law on ethical inquiry. shortly[5] after the reformation, we find two great schools of thought dividing this class of subjects between them. the most influential of the two was at first the sect of school known to us as the casuists, all of them in spiritual communion with the roman catholic church, and nearly all of them affiliated to one or other of her religious orders. on the other side were a body of writers connected with each other by a common intellectual descent from the great author of the treatise _de jure belli et pacis_, hugo grotius. almost all of the latter were adherents of the reformation, and though it cannot be said that they were formally and avowedly at conflict with the casuists, the origin and object of their system were nevertheless essentially different from those of casuistry. it is necessary to call attention to this difference, because it involves the question of the influence of roman law on that department of thought with which both systems are concerned. the book of grotius, though it touches questions of pure ethics in every page, and though it is the parent immediate or remote of innumerable volumes of formal morality, is not, as is well known, a professed treatise on moral philosophy; it is an attempt to determine the law of nature, or natural law. now, without entering upon the question, whether the conception of a law natural be not exclusively a creation of the roman jurisconsults, we may lay down that, even on the admission of grotius himself, the dicta of the roman jurisprudence as to what parts of known positive law must be taken to be parts of the law of nature, are, if not infallible, to be received at all events with the profoundest respect. hence the system of grotius is implicated with roman law at its very foundation, and this connection rendered inevitable--what the legal training of the writer would perhaps have entailed without it--the free employment in every paragraph of technical phraseology, and of modes of reasoning, defining, and illustrating, which must sometimes conceal the sense, and almost always the force and cogency, of the argument from the reader who is unfamiliar with the sources whence they have been derived. on the other hand, casuistry borrows little from roman law, and the views of morality contended for have nothing whatever in common with the undertaking of grotius. all that philosophy of right and wrong which has become famous, or infamous, under the name of casuistry, had its origin in the distinction between mortal and venial sin. a natural anxiety to escape the awful consequences of determining a particular act to be mortally sinful, and a desire, equally intelligible, to assist the roman catholic church in its conflict with protestantism by disburthening it of an inconvenient theory, were the motives which impelled the authors of the casuistical philosophy to the invention of an elaborate system of criteria, intended to remove immoral actions, in as many cases as possible, out of the category of mortal offences, and to stamp them as venial sins. the fate of this experiment is matter of ordinary history. we know that the distinctions of casuistry, by enabling the priesthood to adjust spiritual control to all the varieties of human character, did really confer on it an influence with princes, statesmen, and generals, unheard of in the ages before the reformation, and did really contribute largely to that great reaction which checked and narrowed the first successes of protestantism. but beginning in the attempt, not to establish, but to evade--not to discover a principle, but to escape a postulate--not to settle the nature of right and wrong, but to determine what was not wrong of a particular nature,--casuistry went on with its dexterous refinements till it ended in so attenuating the moral features of actions, and so belying the moral instincts of our being, that at length the conscience of mankind rose suddenly in revolt against it, and consigned to one common ruin the system and its doctors. the blow, long pending, was finally struck in the _provincial letters_ of pascal, and since the appearance of those memorable papers, no moralist of the smallest influence or credit has ever avowedly conducted his speculations in the footsteps of the casuists. the whole field of ethical science was thus left at the exclusive command of the writers who followed grotius; and it still exhibits in an extraordinary degree the traces of that entanglement with roman law which is sometimes imputed as a fault, and sometimes the highest of its recommendations, to the grotian theory. many inquirers since grotius's day have modified his principles, and many, of course, since the rise of the critical philosophy, have quite deserted them; but even those who have departed most widely from his fundamental assumptions have inherited much of his method of statement, of his train of thought, and of his mode of illustration; and these have little meaning and no point to the person ignorant of roman jurisprudence. i have already said that, with the exception of the physical sciences, there is no walk of knowledge which has been so slightly affected by roman law as metaphysics. the reason is that discussion on metaphysical subjects has always been conducted in greek, first in pure greek, and afterwards in a dialect of latin expressly constructed to give expression to greek conceptions. the modern languages have only been fitted to metaphysical inquiries by adopting this latin dialect, or by imitating the process which was originally followed in its formation. the source of the phraseology which has been always employed for metaphysical discussion in modern times was the latin translations of aristotle, in which, whether derived or not from arabic versions, the plan of the translator was not to seek for analogous expressions in any part of latin literature, but to construct anew from latin roots a set of phrases equal to the expression of greek philosophical ideas. over such a process the terminology of roman law can have exercised little influence; at most, a few latin law terms in a transmuted shape have made their way into metaphysical language. at the same time it is worthy of remark that whenever the problems of metaphysics are those which have been most strongly agitated in western europe, the thought, if not the language, betrays a legal parentage. few things in the history of speculation are more impressive than the fact that no greek-speaking people has ever felt itself seriously perplexed by the great question of free-will and necessity. i do not pretend to offer any summary explanation of this, but it does not seem an irrelevant suggestion that neither the greeks, nor any society speaking and thinking in their language, ever showed the smallest capacity for producing a philosophy of law. legal science is a roman creation, and the problem of free-will arises when we contemplate a metaphysical conception under a legal aspect. how came it to be a question whether invariable sequence was identical with necessary connection? i can only say that the tendency of roman law, which became stronger as it advanced, was to look upon legal consequences as united to legal causes by an inexorable necessity, a tendency most markedly exemplified in the definition of obligation which i have repeatedly cited, "juris vinculum quo necessitate adstringimur alicujus solvendæ rei." but the problem of free-will was theological before it became philosophical, and, if its terms have been affected by jurisprudence, it will be because jurisprudence had made itself felt in theology. the great point of inquiry which is here suggested has never been satisfactorily elucidated. what has to be determined, is whether jurisprudence has ever served as the medium through which theological principles have been viewed; whether, by supplying a peculiar language, a peculiar mode of reasoning, and a peculiar solution of many of the problems of life, it has ever opened new channels in which theological speculation could flow out and expand itself. for the purpose of giving an answer it is necessary to recollect what is already agreed upon by the best writers as to the intellectual food which theology first assimilated. it is conceded on all sides that the earliest language of the christian church was greek, and that the problems to which it first addressed itself were those for which greek philosophy in its later forms had prepared the way. greek metaphysical literature contained the sole stock of words and ideas out of which the human mind could provide itself with the means of engaging in the profound controversies as to the divine persons, the divine substance, and the divine natures. the latin language and the meagre latin philosophy were quite unequal to the undertaking, and accordingly the western or latin-speaking provinces of the empire adopted the conclusions of the east without disputing or reviewing them. "latin christianity," says dean milman, "accepted the creed which its narrow and barren vocabulary could hardly express in adequate terms. yet, throughout, the adhesion of rome and the west was a passive acquiescence in the dogmatic system which had been wrought out by the profounder theology of the eastern divines, rather than a vigorous and original examination on her part of those mysteries. the latin church was the scholar as well as the loyal partizan of athanasius." but when the separation of east and west became wider, and the latin-speaking western empire began to live with an intellectual life of its own, its deference to the east was all at once exchanged for the agitation of a number of questions entirely foreign to eastern speculation. "while greek theology (milman, _latin christianity_, preface, 5) went on defining with still more exquisite subtlety the godhead and the nature of christ"--"while the interminable controversy still lengthened out and cast forth sect after sect from the enfeebled community"--the western church threw itself with passionate ardour into a new order of disputes, the same which from those days to this have never lost their interest for any family of mankind at any time included in the latin communion. the nature of sin and its transmission by inheritance--the debt owed by man and its vicarious satisfaction--the necessity and sufficiency of the atonement--above all the apparent antagonism between free-will and the divine providence--these were the points which the west began to debate as ardently as ever the east had discussed the articles of its more special creed. why is it then that on the two sides of the line which divides the greek-speaking from the latin-speaking provinces there lie two classes of theological problems so strikingly different from one another? the historians of the church have come close upon the solution when they remark that the new problems were more "practical," less absolutely speculative, than those which had torn eastern christianity asunder, but none of them, so far as i am aware, has quite reached it. i affirm without hesitation that the difference between the two theological systems is accounted for by the fact that, in passing from the east to the west, theological speculation had passed from a climate of greek metaphysics to a climate of roman law. for some centuries before these controversies rose into overwhelming importance, all the intellectual activity of the western romans had been expended on jurisprudence exclusively. they had been occupied in applying a peculiar set of principles to all the combinations in which the circumstances of life are capable of being arranged. no foreign pursuit or taste called off their attention from this engrossing occupation, and for carrying it on they possessed a vocabulary as accurate as it was copious, a strict method of reasoning, a stock of general propositions on conduct more or less verified by experience, and a rigid moral philosophy. it was impossible that they should not select from the questions indicated by the christian records those which had some affinity with the order of speculations to which they were accustomed, and that their manner of dealing with them should borrow something from their forensic habits. almost everybody who has knowledge enough of roman law to appreciate the roman penal system, the roman theory of the obligations established by contract or delict, the roman view of debts and of the modes of incurring, extinguishing, and transmitting them, the roman notion of the continuance of individual existence by universal succession, may be trusted to say whence arose the frame of mind to which the problems of western theology proved so congenial, whence came the phraseology in which these problems were stated, and whence the description of reasoning employed in their solution. it must only be recollected that roman law which had worked itself into western thought was neither the archaic system of the ancient city, nor the pruned and curtailed jurisprudence of the byzantine emperors; still less, of course, was it the mass of rules, nearly buried in a parasitical overgrowth of modern speculative doctrine, which passes by the name of modern civil law. i speak only of that philosophy of jurisprudence, wrought out by the great juridical thinkers of the antonine age, which may still be partially reproduced from the pandects of justinian, a system to which few faults can be attributed except it perhaps aimed at a higher degree of elegance, certainty, and precision, than human affairs will permit to the limits within which human laws seek to confine them. it is a singular result of that ignorance of roman law which englishmen readily confess, and of which they are sometimes not ashamed to boast, that many english writers of note and credit have been led by it to put forward the most untenable of paradoxes concerning the condition of human intellect during the roman empire. it has been constantly asserted, as unhesitatingly as if there were no temerity in advancing the proposition, that from the close of the augustan era to the general awakening of interest on the points of the christian faith, the mental energies of the civilised world were smitten with a paralysis. now there are two subjects of thought--the only two perhaps with the exception of physical science--which are able to give employment to all the powers and capacities which the mind possesses. one of them is metaphysical inquiry, which knows no limits so long as the mind is satisfied to work on itself; the other is law, which is as extensive as the concerns of mankind. it happens that, during the very period indicated, the greek-speaking provinces were devoted to one, the latin-speaking provinces to the other, of these studies. i say nothing of the fruits of speculation in alexandria and the east, but i confidently affirm that rome and the west had an occupation in hand fully capable of compensating them for the absence of every other mental exercise, and i add that the results achieved, so far as we know them, were not unworthy of the continuous and exclusive labour bestowed on producing them. nobody except a professional lawyer is perhaps in a position completely to understand how much of the intellectual strength of individuals law is capable of absorbing, but a layman has no difficulty in comprehending why it was that an unusual share of the collective intellect of rome was engrossed by jurisprudence. "the proficiency[6] of a given community in jurisprudence depends in the long run on the same conditions as its progress in any other line of inquiry; and the chief of these are the proportion of the national intellect devoted to it, and the length of time during which it is so devoted. now, a combination of all the causes, direct and indirect, which contribute to the advancing and perfecting of a science continued to operate on the jurisprudence of rome through the entire space between the twelve tables and the severance of the two empires,--and that not irregularly or at intervals, but in steadily increasing force and constantly augmenting number. we should reflect that the earliest intellectual exercise to which a young nation devotes itself is the study of its laws. as soon as the mind makes its first conscious efforts towards generalisation, the concerns of every-day life are the first to press for inclusion within general rules and comprehensive formulas. the popularity of the pursuit on which all the energies of the young commonwealth are bent is at the outset unbounded; but it ceases in time. the monopoly of mind by law is broken down. the crowd at the morning audience of the great roman jurisconsult lessens. the students are counted by hundreds instead of thousands in the english inns of court. art, literature, science, and politics, claim their share of the national intellect; and the practice of jurisprudence is confined within the circle of a profession, never indeed limited or insignificant, but attracted as much by the rewards as by the intrinsic recommendations of their science. this succession of changes exhibited itself even more strikingly at rome than in england. to the close of the republic the law was the sole field for all ability except the special talent of a capacity for generalship. but a new stage of intellectual progress began with the augustan age, as it did with our own elizabethan era. we all know what were its achievements in poetry and prose; but there are some indications, it should be remarked, that, besides its efflorescence in ornamental literature, it was on the eve of throwing out new aptitudes for conquest in physical science. here, however, is the point at which the history of mind in the roman state ceases to be parallel to the routes which mental progress had since then pursued. the brief span of roman literature, strictly so called, was suddenly closed under a variety of influences, which though they may partially be traced it would be improper in this place to analyse. ancient intellect was forcibly thrust back into its old courses, and law again became no less exclusively the proper sphere for talent than it had been in the days when the romans despised philosophy and poetry as the toys of a childish race. of what nature were the external inducements which, during the imperial period, tended to draw a man of inherent capacity to the pursuits of the jurisconsult may best be understood by considering the option which was practically before him in his choice of a profession. he might become a teacher of rhetoric, a commander of frontier-posts, or a professional writer of panegyrics. the only other walk of active life which was open to him was the practice of the law. through _that_ lay the approach to wealth, to fame, to office, to the council-chamber of the monarch--it may be to the very throne itself." the premium on the study of jurisprudence was so enormous that there were schools of law in every part of the empire, even in the very domain of metaphysics. but, though the transfer of the seat of empire to byzantium gave a perceptible impetus to its cultivation in the east, jurisprudence never dethroned the pursuits which there competed with it. its language was latin, an exotic dialect in the eastern half of the empire. it is only of the west that we can lay down that law was not only the mental food of the ambitious and aspiring, but the sole aliment of all intellectual activity. greek philosophy had never been more than a transient fashionable taste with the educated class of rome itself, and when the new eastern capital had been created, and the empire subsequently divided into two, the divorce of the western provinces from greek speculation, and their exclusive devotion to jurisprudence, became more decided than ever. as soon then as they ceased to sit at the feet of the greeks and began to ponder out a theology of their own, the theology proved to be permeated with forensic ideas and couched in a forensic phraseology. it is certain that this substratum of law in western theology lies exceedingly deep. a new set of greek theories, the aristotelian philosophy, made their way afterwards into the west and almost entirely buried its indigenous doctrines. but when at the reformation it partially shook itself free from their influence, it instantly supplied their place with law. it is difficult to say whether the religious system of calvin or the religious system of the arminians has the more markedly legal character. the vast influence of the specific jurisprudence of contract produced by the romans upon the corresponding department of modern law belongs rather to the history of mature jurisprudence than to a treatise like the present. it did not make itself felt till the school of bologna founded the legal science of modern europe. but the fact that the romans, before their empire fell, had so fully developed the conception of contract becomes of importance at a much earlier period than this. feudalism, i have repeatedly asserted, was a compound of archaic barbarian usage with roman law; no other explanation of it is tenable, or even intelligible. the earliest social forms of the feudal period differ in little from the ordinary associations in which the men of primitive civilisations are everywhere seen united. a fief was an organically complete brotherhood of associates whose proprietary and personal rights were inextricably blended together. it had much in common with an indian village community and much in common with a highland clan. but still it presents some phenomena which we never find in the associations which are spontaneously formed by beginners in civilisation. true archaic communities are held together not by express rules, but by sentiment, or, we should perhaps say, by instinct; and new comers into the brotherhood are brought within the range of this instinct by falsely pretending to share in the blood-relationship from which it naturally springs. but the earliest feudal communities were neither bound together by mere sentiment nor recruited by a fiction. the tie which united them was contract, and they obtained new associates by contracting with them. the relation of the lord to the vassals had originally been settled by express engagement, and a person wishing to engraft himself on the brotherhood by _commendation_ or _infeudation_ came to a distinct understanding as to the conditions on which he was to be admitted. it is therefore the sphere occupied in them by contract which principally distinguishes the feudal institutions from the unadulterated usages of primitive races. the lord had many of the characteristics of a patriarchal chieftain, but his prerogative was limited by a variety of settled customs traceable to the express conditions which had been agreed upon when the infeudation took place. hence flow the chief differences which forbid us to class the feudal societies with true archaic communities. they were much more durable and much more various; more durable, because express rules are less destructible than instinctive habits, and more various, because the contracts on which they were founded were adjusted to the minutest circumstances and wishes of the persons who surrendered or granted away their lands. this last consideration may serve to indicate how greatly the vulgar opinions current among us as to the origin of modern society stand in need of revision. it is often said that the irregular and various contour of modern civilisation is due to the exuberant and erratic genius of the germanic races, and it is often contrasted with the dull routine of the roman empire. the truth is that the empire bequeathed to modern society the legal conception to which all this irregularity is attributable; if the customs and institutions of barbarians have one characteristic more striking than another, it is their extreme uniformity. [5] the passage quoted is transcribed with slight alterations from a paper contributed by the author to the _cambridge essays_ for 1856. [6] _cambridge essays_, 1856. chapter x the early history of delict and crime the teutonic codes, including those of our anglo-saxon ancestors, are the only bodies of archaic secular law which have come down to us in such a state that we can form an exact notion of their original dimensions. although the extant fragments of roman and hellenic codes suffice to prove to us their general character, there does not remain enough of them for us to be quite sure of their precise magnitude or of the proportion of their parts to each other. but still on the whole all the known collections of ancient law are characterised by a feature which broadly distinguishes them from systems of mature jurisprudence. the proportion of criminal to civil law is exceedingly different. in the german codes, the civil part of the law has trifling dimensions as compared with the criminal. the traditions which speak of the sanguinary penalties inflicted by the code of draco seem to indicate that it had the same characteristic. in the twelve tables alone, produced by a society of greater legal genius and at first of gentler manners, the civil law has something like its modern precedence; but the relative amount of space given to the modes of redressing wrong, though not enormous, appears to have been large. it may be laid down, i think, that the more archaic the code, the fuller and the minuter is its penal legislation. the phenomenon has often been observed, and has been explained, no doubt to a great extent correctly, by the violence habitual to the communities which for the first time reduced their laws to writing. the legislator, it is said, proportioned the divisions of his work to the frequency of a certain class of incidents in barbarian life. i imagine, however, that this account is not quite complete. it should be recollected that the comparative barrenness of civil law in archaic collections is consistent with those other characteristics of ancient jurisprudence which have been discussed in this treatise. nine-tenths of the civil part of the law practised by civilised societies are made up of the law of persons, of the law of property and of inheritance, and of the law of contract. but it is plain that all these provinces of jurisprudence must shrink within narrower boundaries, the nearer we make our approaches to the infancy of social brotherhood. the law of persons, which is nothing else than the law of status, will be restricted to the scantiest limits as long as all forms of status are merged in common subjection to paternal power, as long as the wife has no rights against her husband, the son none against his father, and the infant ward none against the agnates who are his guardians. similarly, the rules relating to property and succession can never be plentiful, so long as land and goods devolve within the family, and, if distributed at all, are distributed inside its circle. but the greatest gap in ancient civil law will always be caused by the absence of contract, which some archaic codes do not mention at all, while others significantly attest the immaturity of the moral notions on which contract depends by supplying its place with an elaborate jurisprudence of oaths. there are no corresponding reasons for the poverty of penal law, and accordingly, even if it be hazardous to pronounce that the childhood of nations is always a period of ungoverned violence, we shall still be able to understand why the modern relation of criminal law to civil should be inverted in ancient codes. i have spoken of primitive jurisprudence as giving to _criminal_ law a priority unknown in a later age. the expression has been used for convenience' sake, but in fact the inspection of ancient codes shows that the law which they exhibit in unusual quantities is not true criminal law. all civilised systems agree in drawing a distinction between offences against the state or community and offences against the individual, and the two classes of injuries, thus kept apart, i may here, without pretending that the terms have always been employed consistently in jurisprudence, call crimes and wrongs, _crimina_ and _delicta_. now the penal law of ancient communities is not the law of crimes; it is the law of wrongs, or, to use the english technical word, of torts. the person injured proceeds against the wrong-doer by an ordinary civil action, and recovers compensation in the shape of money-damages if he succeeds. if the commentaries of gaius be opened at the place where the writer treats of the penal jurisprudence founded on the twelve tables, it will be seen that at the head of the civil wrongs recognised by the roman law stood _furtum_ or _theft_. offences which we are accustomed to regard exclusively as _crimes_ are exclusively treated as _torts_, and not theft only, but assault and violent robbery, are associated by the jurisconsult with trespass, libel and slander. all alike gave rise to an obligation or _vinculum juris_, and were all requited by a payment of money. this peculiarity, however, is most strongly brought out in the consolidated laws of the germanic tribes. without an exception, they describe an immense system of money compensations for homicide, and with few exceptions, as large a scheme of compensations for minor injuries. "under anglo-saxon law," writes mr. kemble (_anglo-saxons_, i. 177), "a sum was placed on the life of every free man, according to his rank, and a corresponding sum on every wound that could be inflicted on his person, for nearly every injury that could be done to his civil rights, honour or peace; the sum being aggravated according to adventitious circumstances." these compositions are evidently regarded as a valuable source of income; highly complex rules regulate the title to them and the responsibility for them; and, as i have already had occasion to state, they often follow a very peculiar line of devolution, if they have not been acquitted at the decease of the person to whom they belong. if therefore the criterion of a _delict_, _wrong_, or _tort_ be that the person who suffers it, and not the state, is conceived to be wronged, it may be asserted that in the infancy of jurisprudence the citizen depends for protection against violence or fraud not on the law of crime but on the law of tort. torts then are copiously enlarged upon in primitive jurisprudence. it must be added that sins are known to it also. of the teutonic codes it is almost unnecessary to make this assertion, because those codes, in the form in which we have received them, were compiled or recast by christian legislators. but it is also true that non-christian bodies of archaic law entail penal consequences on certain classes of acts and on certain classes of omissions, as being violations of divine prescriptions and commands. the law administered at athens by the senate of areopagus was probably a special religious code, and at rome, apparently from a very early period, the pontifical jurisprudence punished adultery, sacrilege and perhaps murder. there were therefore in the athenian and in the roman states laws punishing _sins_. there were also laws punishing _torts_. the conception of offence against god produced the first class of ordinances; the conception of offence against one's neighbour produced the second; but the idea of offence against the state or aggregate community did not at first produce a true criminal jurisprudence. yet it is not to be supposed that a conception so simple and elementary as that of wrong done to the state was wanting in any primitive society. it seems rather that the very distinctness with which this conception is realised is the true cause which at first prevents the growth of a criminal law. at all events, when the roman community conceived itself to be injured, the analogy of a personal wrong received was carried out to its consequences with absolute literalness, and the state avenged itself by a single act on the individual wrong-doer. the result was that, in the infancy of the commonwealth, every offence vitally touching its security or its interests was punished by a separate enactment of the legislature. and this is the earliest conception of a _crimen_ or crime--an act involving such high issues that the state, instead of leaving its cognisance to the civil tribunal or the religious court, directed a special law or _privilegium_ against the perpetrator. every indictment therefore took the form of a bill of pains and penalties, and the trial of a _criminal_ was a proceeding wholly extraordinary, wholly irregular, wholly independent of settled rules and fixed conditions. consequently, both for the reason that the tribunal dispensing justice was the sovereign state itself and also for the reason that no classification of the acts prescribed or forbidden was possible, there was not at this epoch any _law_ of crimes, any criminal jurisprudence. the procedure was identical with the forms of passing an ordinary statute; it was set in motion by the same persons and conducted with precisely the same solemnities. and it is to be observed that, when a regular criminal law with an apparatus of courts and officers for its administration had afterwards come into being, the old procedure, as might be supposed from its conformity with theory, still in strictness remained practicable; and, much as resort to such an expedient was discredited, the people of rome always retained the power of punishing by a special law offences against its majesty. the classical scholar does not require to be reminded that in exactly the same manner the athenian bill of pains and penalties, or [greek: eisangelia], survived the establishment of regular tribunals. it is known too that when the freemen of the teutonic races assembled for legislation, they also claimed authority to punish offences of peculiar blackness or perpetrated by criminals of exalted station. of this nature was the criminal jurisdiction of the anglo-saxon witenagemot. it may be thought that the difference which i have asserted to exist between the ancient and modern view of penal law has only a verbal existence. the community, it may be said, besides interposing to punish crimes legislatively, has from the earliest times interfered by its tribunals to compel the wrong-doer to compound for his wrong, and, if it does this, it must always have supposed that in some way it was injured through his offence. but, however rigorous this inference may seem to us now-a-days, it is very doubtful whether it was actually drawn by the men of primitive antiquity. how little the notion of injury to the community had to do with the earliest interferences of the state _through its tribunals_, is shown by the curious circumstances that in the original administration of justice, the proceedings were a close imitation of the series of acts which were likely to be gone through in private life by persons who were disputing, but who afterwards suffered their quarrel to be appeased. the magistrate carefully simulated the demeanour of a private arbitrator casually called in. in order to show that this statement is not a mere fanciful conceit, i will produce the evidence on which it rests. very far the most ancient judicial proceeding known to us is the legis actio sacramenti of the romans, out of which all the later roman law of actions may be proved to have grown. gaius carefully describes its ceremonial. unmeaning and grotesque as it appears at first sight, a little attention enables us to decipher and interpret it. the subject of litigation is supposed to be in court. if it is moveable, it is actually there. if it be immoveable, a fragment or sample of it is brought in its place; land, for instance, is represented by a clod, a house by a single brick. in the example selected by gaius, the suit is for a slave. the proceeding begins by the plaintiff's advancing with a rod, which, as gaius expressly tells, symbolised a spear. he lays hold of the slave and asserts a right to him with the words, "_hunc ego hominem ex jure quiritium meum esse dico secundum suam causam sicut dixi_;" and then saying, "_ecce tibi vindictam imposui_," he touches him with the spear. the defendant goes through the same series of acts and gestures. on this the prætor intervenes, and bids the litigants relax their hold, "_mittite ambo hominem_." they obey, and the plaintiff demands from the defendant the reason of his interference, "_postulo anne dicas quâ ex causâ vindicaveris_," a question which is replied to by a fresh assertion of right, "_jus peregi sicut vindictam imposui_." on this, the first claimant offers to stake a sum of money, called a sacramentum, on the justice of his own case, "_quando tu injuriâ provocasti, d æris sacramento te provoco_," and the defendant, in the phrase "_similiter ego te_," accepts the wager. the subsequent proceedings were no longer of a formal kind, but it is to be observed that the prætor took security for the sacramentum, which always went into the coffers of the state. such was the necessary preface of every ancient roman suit. it is impossible, i think, to refuse assent to the suggestion of those who see in it a dramatisation of the origin of justice. two armed men are wrangling about some disputed property. the prætor, _vir pietate gravis_, happens to be going by, and interposes to stop the contest. the disputants state their case to him, and agree that he shall arbitrate between them, it being arranged that the loser, besides resigning the subject of the quarrel, shall pay a sum of money to the umpire as remuneration for his trouble and loss of time. this interpretation would be less plausible than it is, were it not that, by a surprising coincidence, the ceremony described by gaius as the imperative course of proceeding in a legis actio is substantially the same with one of the two subjects which the god hephæstus is described by homer as moulding into the first compartment of the shield of achilles. in the homeric trial-scene, the dispute, as if expressly intended to bring out the characteristics of primitive society, is not about property but about the composition for a homicide. one person asserts that he has paid it, the other that he has never received it. the point of detail, however, which stamps the picture as the counterpart of the archaic roman practice is the reward designed for the judges. two talents of gold lie in the middle, to be given to him who shall explain the grounds of the decision most to the satisfaction of the audience. the magnitude of this sum as compared with the trifling amount of the sacramentum seems to me indicative of the indifference between fluctuating usage and usage consolidated into law. the scene introduced by the poet as a striking and characteristic, but still only occasional, feature of city-life in the heroic age has stiffened, at the opening of the history of civil process, into the regular, ordinary formalities of a lawsuit. it is natural therefore that in the legis actio the remuneration of the judge should be reduced to a reasonable sum, and that, instead of being adjudged to one of a number of arbitrators by popular acclamation, it should be paid as a matter of course to the state which the prætor represents. but that the incidents described so vividly by homer, and by gaius with even more than the usual crudity of technical language, have substantially the same meaning, i cannot doubt; and, in confirmation of this view, it may be added that many observers of the earliest judicial usages of modern europe have remarked that the fines inflicted by courts on offenders were originally _sacramenta_. the state did not take from the defendant a composition for any wrong supposed to be done to itself, but claimed a share in the compensation awarded to the plaintiff simply as the fair price of its time and trouble. mr. kemble expressly assigns this character to the anglo-saxon _bannum_ or _fredum_. ancient law furnishes other proofs that the earliest administrators of justice simulated the probable acts of persons engaged in a private quarrel. in settling the damages to be awarded, they took as their guide the measure of vengeance likely to be exacted by an aggrieved person under the circumstances of the case. this is the true explanation of the very different penalties imposed by ancient law on offenders caught in the act or soon after it and on offenders detected after considerable delay. some strange exemplifications of this peculiarity are supplied by the old roman law of theft. the laws of the twelve tables seem to have divided thefts into manifest and non-manifest, and to have allotted extraordinarily different penalties to the offence according as it fell under one head or the other. the manifest thief was he who was caught within the house in which he had been pilfering, or who was taken while making off to a place of safety with the stolen goods; the twelve tables condemned him to be put to death if he were already a slave, and, if he was a freeman, they made him the bondsman of the owner of the property. the non-manifest thief was he who was detected under any other circumstances than those described; and the old code simply directed that an offender of this sort should refund double the value of what he had stolen. in gaius's day the excessive severity of the twelve tables to the manifest thief had naturally been much mitigated, but the law still maintained the old principle by mulcting him in fourfold the value of the stolen goods, while the non-manifest thief still continued to pay merely the double. the ancient lawgiver doubtless considered that the injured proprietor, if left to himself, would inflict a very different punishment when his blood was hot from that with which he would be satisfied when the thief was detected after a considerable interval; and to this calculation the legal scale of penalties was adjusted. the principle is precisely the same as that followed in the anglo-saxon and other germanic codes, when they suffer a thief chased down and caught with the booty to be hanged or decapitated on the spot, while they exact the full penalties of homicide from anybody who kills him after the pursuit has been intermitted. these archaic distinctions bring home to us very forcibly the distance of a refined from a rude jurisprudence. the modern administrator of justice has confessedly one of the hardest tasks before him when he undertakes to discriminate between the degrees of criminality which belong to offences falling within the same technical description. it is always easy to say that a man is guilty of manslaughter, larceny, or bigamy, but it is often most difficult to pronounce what extent of moral guilt he has incurred, and consequently what measure of punishment he has deserved. there is hardly any perplexity in casuistry, or in the analysis of motive, which we may not be called upon to confront, if we attempt to settle such a point with precision; and accordingly the law of our day shows an increasing tendency to abstain as much as possible from laying down positive rules on the subject. in france, the jury is left to decide whether the offence which it finds committed has been attended by extenuating circumstances; in england, a nearly unbounded latitude in the selection of punishments is now allowed to the judge; while all states have in reserve an ultimate remedy for the miscarriages of law in the prerogative of pardon, universally lodged with the chief magistrate. it is curious to observe how little the men of primitive times were troubled with these scruples, how completely they were persuaded that the impulses of the injured person were the proper measure of the vengeance he was entitled to exact, and how literally they imitated the probable rise and fall of his passions in fixing their scale of punishment. i wish it could be said that their method of legislation is quite extinct. there are, however, several modern systems of law which, in cases of graver wrong, admit the fact of the wrong-doer having been taken in the act to be pleaded in justification of inordinate punishment inflicted on him by the sufferer--an indulgence which, though superficially regarded it may seem intelligible, is based, as it seems to me, on a very low morality. nothing, i have said, can be simpler than the considerations which ultimately led ancient societies to the formation of a true criminal jurisprudence. the state conceived itself to be wronged, and the popular assembly struck straight at the offender with the same movement which accompanied its legislative action. it is further true of the ancient world--though not precisely of the modern, as i shall have occasion to point out--that the earliest criminal tribunals were merely subdivisions, or committees, of the legislature. this, at all events, is the conclusion pointed at by the legal history of the two great states of antiquity, with tolerable clearness in one case, and with absolute distinctness in the other. the primitive penal law of athens entrusted the castigation of offences partly to the archons, who seem to have punished them as _torts_, and partly to the senate of areopagus, which punished them as _sins_. both jurisdictions were substantially transferred in the end to the heliæa, the high court of popular justice, and the functions of the archons and of the areopagus became either merely ministerial or quite insignificant. but "heliæa" is only an old word for assembly; the heliæa of classical times was simply the popular assembly convened for judicial purposes, and the famous dikasteries of athens were only its subdivisions or panels. the corresponding changes which occurred at rome are still more easily interpreted, because the romans confined their experiments to the penal law, and did not, like the athenians, construct popular courts with a civil as well as a criminal jurisdiction. the history of roman criminal jurisprudence begins with the old judicia populi, at which the kings are said to have presided. these were simply solemn trials of great offenders under legislative forms. it seems, however, that from an early period the comitia had occasionally delegated its criminal jurisdiction to a quæstio or commission, which bore much the same relation to the assembly as a committee of the house of commons bears to the house itself, except that the roman commissioners or quæstores did not merely _report_ to the comitia, but exercised all powers which that body was itself in the habit of exercising, even to the passing sentence on the accused. a quæstio of this sort was only appointed to try a particular offender, but there was nothing to prevent two or three quæstiones sitting at the same time; and it is probable that several of them were appointed simultaneously, when several grave cases of wrong to the community had occurred together. there are also indications that now and then these quæstiones approached the character of our _standing_ committees, in that they were appointed periodically, and without waiting for occasion to arise in the commission of some serious crime. the old quæstores parricidii, who are mentioned in connection with transactions of very ancient date, as being deputed to try (or, as some take it, to search out and try) all cases of parricide and murder, seem to have been appointed regularly every year; and the duumviri perduellionis, or commission of two for trial of violent injury to the commonwealth, are also believed by most writers to have been named periodically. the delegations of power to these latter functionaries bring us some way forwards. instead of being appointed _when and as_ state-offences were committed, they had a general, though a temporary jurisdiction over such as _might_ be perpetrated. our proximity to a regular criminal jurisprudence is also indicated by the general terms "parricidium" and "perduellio" which mark the approach to something like a classification of crimes. the true criminal law did not however come into existence till the year b.c. 149, when l. calpurnius piso carried the statute known as the lex calpurnia de repetundis. the law applied to cases repetundarum pecuniarum, that is, claims by provincials to recover monies improperly received by a governor-general, but the great and permanent importance of this statute arose from its establishing the first quæstio perpetua. a quæstio perpetua was a _permanent_ commission as opposed to those which were occasional and to those which were temporary. it was a regular criminal tribunal whose existence dated from the passing of the statute creating it and continued till another statute should pass abolishing it. its members were not specially nominated, as were the members of the older quæstiones, but provision was made in the law constituting it for selecting from particular classes the judges who were to officiate, and for renewing them in conformity with definite rules. the offences of which it took cognisance were also expressly named and defined in this statute, and the new quæstio had authority to try and sentence all persons in future whose acts should fall under the definitions of crime supplied by the law. it was therefore a regular criminal judicature, administering a true criminal jurisprudence. the primitive history of criminal law divides itself therefore into four stages. understanding that the conception of _crime_, as distinguished from that of _wrong_ or _tort_ and from that of _sin_, involves the idea of injury to the state or collective community, we first find that the commonwealth, in literal conformity with the conception, itself interposed directly, and by isolated acts, to avenge itself on the author of the evil which it had suffered. this is the point from which we start; each indictment is now a bill of pains and penalties, a special law naming the criminal and prescribing his punishment. a _second_ step is accomplished, when the multiplicity of crimes compels the legislature to delegate its powers to particular quæstiones or commissions, each of which is deputed to investigate a particular accusation, and if it be proved, to punish the particular offender. yet _another_ movement is made when the legislature, instead of waiting for the alleged commission of a crime as the occasion of appointing a quæstio, periodically nominates commissioners like the quæstores parricidii and the duumviri perduellionis, on the chance of certain classes of crimes being committed, and in the expectation that they _will_ be perpetrated. the _last_ stage is reached when the quæstiones from being periodical or occasional become permanent benches or chambers--when the judges, instead of being named in the particular law nominating the commission, are directed to be chosen through all future time in a particular way and from a particular class--and when certain acts are described in general language and declared to be crimes, to be visited, in the event of their perpetration, with specified penalties appropriated to each description. if the quæstiones perpetuæ had had a longer history, they would doubtless have come to be regarded as a distinct institution, and their relation to the comitia would have seemed no closer than the connection of our own courts of law with the sovereign, who is theoretically the fountain of justice. but the imperial despotism destroyed them before their origin had been completely forgotten, and, so long as they lasted, these permanent commissions were looked upon by the romans as the mere depositaries of a delegated power. the cognisance of crimes was considered a natural attribute of the legislature, and the mind of the citizen never ceased to be carried back from the quæstiones, to the comitia which had deputed them to put into exercise some of its own inalienable functions. the view which regarded the quæstiones, even when they became permanent, as mere committees of the popular assembly--as bodies which only ministered to a higher authority--had some important legal consequences which left their mark on the criminal law to the very latest period. one immediate result was that the comitia continued to exercise criminal jurisdiction by way of bill of pains and penalties, long after the quæstiones had been established. though the legislature had consented to delegate its powers for the sake of convenience to bodies external to itself, it did not follow that it surrendered them. the comitia and the quæstiones went on trying and punishing offenders side by side; and any unusual outburst of popular indignation was sure, until the extinction of the republic, to call down upon its object an indictment before the assembly of the tribes. one of the most remarkable peculiarities of the institutions of the republic is also traceable to this dependance of the quæstiones on the comitia. the disappearance of the punishment of death from the penal system of republican rome used to be a very favourite topic with the writers of the last century, who were perpetually using it to point some theory of the roman character or of modern social economy. the reason which can be confidently assigned for it stamps it as purely fortuitous. of the three forms which the roman legislature successively assumed, one, it is well known--the comitia centuriata--was exclusively taken to represent the state as embodied for military operations. the assembly of the centuries, therefore, had all powers which may be supposed to be properly lodged with a general commanding an army, and, among them, it had authority to subject all offenders to the same correction to which a soldier rendered himself liable by breaches of discipline. the comitia centuriata could therefore inflict capital punishment. not so, however, the comitia curiata or comitia tributa. they were fettered on this point by the sacredness with which the person of a roman citizen, inside the walls of the city, was invested by religion and law; and, with respect to the last of them, the comitia tributa, we know for certain that it became a fixed principle that the assembly of the tribes could at most impose a fine. so long as criminal jurisdiction was confined to the legislature, and so long as the assemblies of the centuries and of the tribes continued to exercise co-ordinate powers, it was easy to prefer indictments for graver crimes before the legislative body which dispensed the heavier penalties; but then it happened that the more democratic assembly, that of the tribes, almost entirely superseded the others, and became the ordinary legislature of the later republic. now the decline of the republic was exactly the period during which the quæstiones perpetuæ were established, so that the statutes creating them were all passed by a legislative assembly which itself could not, at its ordinary sittings, punish a criminal with death. it followed that the permanent judicial commissions, holding a delegated authority, were circumscribed in their attributes and capacities by the limits of the powers residing with the body which deputed them. they could do nothing which the assembly of the tribes could not have done; and, as the assembly could not sentence to death, the quæstiones were equally incompetent to award capital punishment. the anomaly thus resulting was not viewed in ancient times with anything like the favour which it has attracted among the moderns, and indeed, while it is questionable whether the roman character was at all the better for it, it is certain that the roman constitution was a great deal the worse. like every other institution which has accompanied the human race down the current of its history, the punishment of death is a necessity of society in certain stages of the civilising process. there is a time when the attempt to dispense with it baulks both of the two great instincts which lie at the root of all penal law. without it, the community neither feels that it is sufficiently revenged on the criminal, nor thinks that the example of his punishment is adequate to deter others from imitating him. the incompetence of the roman tribunals to pass sentence of death led distinctly and directly to those frightful revolutionary intervals, known as the proscriptions, during which all law was formally suspended simply because party violence could find no other avenue to the vengeance for which it was thirsting. no cause contributed so powerfully to the decay of political capacity in the roman people as this periodical abeyance of the laws; and, when it had once been resorted to, we need not hesitate to assert that the ruin of roman liberty became merely a question of time. if the practice of the tribunals had afforded an adequate vent for popular passion, the forms of judicial procedure would no doubt have been as flagrantly perverted as with us in the reigns of the later stuarts, but national character would not have suffered as deeply as it did, nor would the stability of roman institutions have been as seriously enfeebled. i will mention two more singularities of the roman criminal system which were produced by the same theory of judicial authority. they are, the extreme multiplicity of the roman criminal tribunals, and the capricious and anomalous classification of crimes which characterised roman penal jurisprudence throughout its entire history. every _quæstio_, it has been said, whether perpetual or otherwise, had its origin in a distinct statute. from the law which created it, it derived its authority; it rigorously observed the limits which its charter prescribed to it, and touched no form of criminality which that charter did not expressly define. as then the statutes which constituted the various quæstiones were all called forth by particular emergencies, each of them being in fact passed to punish a class of acts which the circumstances of the time rendered particularly odious or particularly dangerous, these enactments made not the slightest reference to each other, and were connected by no common principle. twenty or thirty different criminal laws were in existence together, with exactly the same number of quæstiones to administer them; nor was any attempt made during the republic to fuse these distinct judicial bodies into one, or to give symmetry to the provisions of the statutes which appointed them and defined their duties. the state of the roman criminal jurisdiction at this period, exhibited some resemblances to the administration of civil remedies in england at the time when the english courts of common law had not as yet introduced those fictitious averments into their writs which enabled them to trespass on each other's peculiar province. like the quæstiones, the courts of queen's bench, common pleas, and exchequer were all theoretical emanations from a higher authority, and each entertained a special class of cases supposed to be committed to it by the fountain of its jurisdiction; but then the roman quæstiones were many more than three in number, and it was infinitely less easy to discriminate the acts which fell under the cognisance of each quæstio, than to distinguish between the provinces of the three courts in westminster hall. the difficulty of drawing exact lines between the spheres of the different quæstiones made the multiplicity of roman tribunals something more than a mere inconvenience; for we read with astonishment that when it was not immediately clear under what general description a man's alleged offences ranged themselves, he might be indicted at once or successively before several different commissions, on the chance of some one of them declaring itself competent to convict him; and, although conviction by one quæstio ousted the jurisdiction of the rest, acquittal by one of them could not be pleaded to an accusation before another. this was directly contrary to the rule of the roman civil law; and we may be sure that a people so sensitive as the romans to anomalies (or, as their significant phrase was, to _inelegancies_) in jurisprudence, would not long have tolerated it, had not the melancholy history of the quæstiones caused them to be regarded much more as temporary weapons in the hands of factions than as permanent institutions for the correction of crime. the emperors soon abolished this multiplicity and conflict of jurisdiction; but it is remarkable that they did not remove another singularity of the criminal law which stands in close connection with the number of the courts. the classifications of crimes which are contained even in the corpus juris of justinian are remarkably capricious. each quæstio had, in fact, confined itself to the crimes committed to its cognisance by its charter. these crimes, however, were only classed together in the original statute because they happened to call simultaneously for castigation at the moment of passing it. they had not therefore anything necessarily in common; but the fact of their constituting the particular subject-matter of trials before a particular quæstio impressed itself naturally on the public attention, and so inveterate did the association become between the offences mentioned in the same statute that, even when formal attempts were made by sylla and by the emperor augustus to consolidate the roman criminal law, the legislator preserved the old grouping. the statutes of sylla and augustus were the foundation of the penal jurisprudence of the empire, and nothing can be more extraordinary than some of the classifications which they bequeathed to it. i need only give a single example in the fact that _perjury_ was always classed with _cutting and wounding_ and with _poisoning_, no doubt because a law of sylla, the lex cornelia de sicariis et veneficis, had given jurisdiction over all these three forms of crime to the same permanent commission. it seems too that this capricious grouping of crimes affected the vernacular speech of the romans. people naturally fell into the habit of designating all the offences enumerated in one law by the first name on the list, which doubtless gave its style to the law court deputed to try them all. all the offences tried by the quæstio de adulteriis would thus be called adultery. i have dwelt on the history and characteristics of the roman quæstiones because the formation of a criminal jurisprudence is nowhere else so instructively exemplified. the last quæstiones were added by the emperor augustus, and from that time the romans may be said to have had a tolerably complete criminal law. concurrently with its growth, the analogous process had gone on, which i have called the conversion of wrongs into crimes, for, though the roman legislature did not extinguish the civil remedy for the more heinous offences, it offered the sufferer a redress which he was sure to prefer. still, even after augustus had completed his legislation, several offences continued to be regarded as wrongs, which modern societies look upon exclusively as crimes; nor did they become criminally punishable till some late but uncertain date, at which the law began to take notice of a new description of offences called in the digest _crimina extraordinaria_. these were doubtless a class of acts which the theory of roman jurisprudence treated merely as wrongs; but the growing sense of the majesty of society revolted from their entailing nothing worse on their perpetrator than the payment of money damages, and accordingly the injured person seems to have been permitted, if he pleased, to pursue them as crimes _extra ordinem_, that is by a mode of redress departing in some respect or other from the ordinary procedure. from the period at which these _crimina extraordinaria_ were first recognised, the list of crimes in the roman state must have been as long as in any community of the modern world. it is unnecessary to describe with any minuteness the mode of administering criminal justice under the roman empire, but it is to be noted that both its theory and practice have had powerful effect on modern society. the emperors did not immediately abolish the quæstiones, and at first they committed an extensive criminal jurisdiction to the senate, in which, however servile it might show itself in fact, the emperor was no more nominally than a senator like the rest. but some sort of collateral criminal jurisdiction had been claimed by the prince from the first; and this, as recollections of the free commonwealth decayed, tended steadily to gain at the expense of the old tribunals. gradually the punishment of crimes was transferred to magistrates directly nominated by the emperor and the privileges of the senate passed to the imperial privy council, which also became a court of ultimate criminal appeal. under these influences the doctrine, familiar to the moderns, insensibly shaped itself that the sovereign is the fountain of all justice and the depositary of all grace. it was not so much the fruit of increasing adulation and servility as of the centralisation of the empire which had by this time perfected itself. the theory of criminal justice had, in fact, worked round almost to the point from which it started. it had begun in the belief that it was the business of the collective community to avenge its own wrongs by its own hand; and it ended in the doctrine that the chastisement of crimes belonged in an especial manner to the sovereign as representative and mandatary of his people. the new view differed from the old one chiefly in the air of awfulness and majesty which the guardianship of justice appeared to throw around the person of the sovereign. this later roman view of the sovereign's relation to justice certainly assisted in saving modern societies from the necessity of travelling through the series of changes which i have illustrated by the history of the quæstiones. in the primitive law of almost all the races which have peopled western europe there are vestiges of the archaic notion that the punishment of crimes belongs to the general assembly of freemen; and there are some states--scotland is said to be one of them--in which the parentage of the existing judicature can be traced up to a committee of the legislative body. but the development of the criminal law was universally hastened by two causes, the memory of the roman empire and the influence of the church. on the one hand traditions of the majesty of the cæsars, perpetuated by the temporary ascendency of the house of charlemagne, were surrounding sovereigns with a prestige which a mere barbarous chieftain could never otherwise have acquired and were communicating to the pettiest feudal potentate the character of guardian of society and representative of the state. on the other hand, the church, in its anxiety to put a curb on sanguinary ferocity, sought about for authority to punish the graver misdeeds, and found it in those passages of scripture which speak with approval of the powers of punishment committed to the civil magistrate. the new testament was appealed to as proving that secular rulers exist for the terror of evildoers; the old testament, as laying down that "whoso sheddeth man's blood, by man shall his blood be shed." there can be no doubt, i imagine, that modern ideas on the subject of crime are based upon two assumptions contended for by the church in the dark ages--first, that each feudal ruler, in his degree, might be assimilated to the roman magistrates spoken of by saint paul; and next, that the offences which he was to chastise were those selected for prohibition in the mosaic commandments, or rather such of them as the church did not reserve to her own cognisance. heresy (supposed to be included in the first and second commandments), adultery, and perjury were ecclesiastical offences, and the church only admitted the co-operation of the secular arm for the purpose of inflicting severer punishment in cases of extraordinary aggravation. at the same time, she taught that murder and robbery with their various modifications were under the jurisdiction of civil rulers, not as an accident of their position but by the express ordinance of god. there is a passage in the writings of king alfred (kemble, ii. 209) which brings out into remarkable clearness the struggle of the various ideas that prevailed in his day as to the origin of criminal jurisdiction. it will be seen that alfred attributes it partly to the authority of the church and partly to that of the witan, while he expressly claims for treason against the lord the same immunity from ordinary rules which the roman law of majestas had assigned to treason against the cæsar. "after this it happened," he writes, "that many nations received the faith of christ, and there were many synods assembled throughout the earth, and among the english race also after they had received the faith of christ, both of holy bishops and of their exalted witan. they then ordained that, out of that mercy which christ had taught, secular lords, with their leave, might without sin take for every misdeed the _bot_ in money which they ordained; except in cases of treason against a lord, to which they dared not assign any mercy because almighty god adjudged none to them that despised him, nor did christ adjudge any to them which sold him to death; and he commanded that a lord should be loved like himself." index austin, 69, 171; _province of jurisprudence determined_, 4 ayala, 64 bentham, 18, 46, 54, 70, 147; _fragment on government_, 4 blackstone, 67, 89, 150, 152 _cambridge essays_, 1856, maine, 205, 212 capture in war, 145, 146 casuistry, 205, 206, 207 charlemagne, 62, 233 codes, attic of solon, 9; era of, 8; first introduced into the west, 10; hindoo law of menu, 10-12; justinian, 25, 27; napoléon, 104; roman, superiority over hindoo, 10-12; twelve tables of rome, 1, 8, 9, 12, 20 contract, austin on, 190; bentham on, 190; imperative law, 182; judicial and popular error, 181; law of nations, 181, 196, 197; literal or written, 194; origin lies in the family, 99; pact or convention, 184, 185; real, 195; roman, classification, 191, 192; consensual, 195-198; domestic system, 194; nexum, definition of, 185-189; rousseau, 181; sale, 188 conveyances and contracts, confusion between, 185-187; and mancipation, 185 _corpus juris civilis_, 26 creditors, powers of, in ancient system, 189 crimes and wrongs, confusion between, 231, 232; distinction between primitive and modern, 217, 218; kemble in _anglo-saxons_, 218 criminal law, athens, 224; degree of guilt, 223; four stages of primitive history, 226; influence of church, 233; primitive religious code, 218, 219; roman, crime against state, 219; b.c. 149, 225; origin of, 225; sentence of death, 227-229; theft, 222, 223; tribunals, 228-230; under emperors, 230-232 customary law, epoch of, 7, 8; hindoo, 4 dangers of law, rigidity, too rapid development, 44, 45 debtors, severity of ancient system, 189 equity, 172; early history of, 15; lord eldon on, 40; english, 40, 41; meaning of, 17; origin, 34, 35; roman compared with english, 40-42 feudalism, explanation of, 214 gaius, 90, 174, 220-223 grote, decline of kingly rule, 6; _history of greece_, 3, 5; law administered by aristocracies, 7 grotius, hugo, 56, 58, 59, 64; _de jure belli et pacis_, 205 homer, earliest notions of law derived from, 2, 3; themis, themistes, 2-5 indian (hindoo) law, _see_ separate headings codes, customary, primogeniture, property, testamentary law, village communities institutional treatise (justinian), 27 international law, 64; and occupancy, 145 law of nations (jus gentium), incorporation with roman law, 36, 37; origin of, 27-31 legal fictions, benefit of, 77; examples in english law, 18; in roman law, 15, 16; meaning, useful purpose of, 15, 16 legis actio sacramenti, gaius on, 220, 221 legislation, the agent of legal improvement, 17; differing from equity, legal fictions, 17, 18 _lettres persanes_, 183 maine, _cambridge essays_, 1856, 205, 212 mancipation, 120, 121, 163-169, 185 menu, laws of, 10-12 montesquieu, 49, 51, 183 natural law (law of nature), american law and, 56; antagonistic to historical method, 53; confusing past with present, 43; equality of man, 54-56; equality of sex, 90; feudalism, 62, 65; french history, 47, 48, 50, 53; french law, 56; greek interpretation of, 44; grotian system, 56, 58, 59, 64-66; incorporated with roman law, 36, 37; influence of stoics, 32, 33; modern international law, 56-60; most critical period, 50; modern society, 54; occupancy, 145-147, 153; origin of, 31, 32; private property, 164; rousseau on, 51; slavery, 95; territorial sovereignty, 60-63; testamentary law, 103, 104 occupancy, 144, 145; in roman law, 145 pascal, _provincial letters_, 207 prescriptions, 167, 168; and canon law, 168 primogeniture, celtic customs, 141, 142; feudal system, 135-137; hindoo law, 134, 137, 141; mahometan law, 142; roman law, 133, 134 property, natural modes of acquiring, 144 property law, ancient germanic, 165, ancient sclavonic, 165; descent in middle ages, 132; indian law, 165; origin of, 145; possession, 170, 172; private, ancient forms of transfer, 160, 162-164; roman, 60, 66, 166; cessio in jure, 170; edictum perpetuum, 37; emphyteusis, 175-178; gaius on, 174; justinian, 174; law of persons and things, 152; mancipation, 163, 169; possessory interdicts, 171; praetor's interdict, 172; res mancipi, 160-164, 173; res nec mancipi, 164; system of farming, 176; usucapion, 167, 169, 173 roman law, _see_ separate headings contracts, criminal, property, occupancy, testamentary; decemviral law, 20; definition of inheritance, 107; end of period of jurists, 40; influence of praetor, 38; intestacy, 127-130; law of inheritance, 111; leges corneliae, 24, 25; leges juliae, 25; marriage, 91; obligation in, 190, 191, 195, 197; pandects of justinian, 39; powers of praetor, 37, 39; praetorian edict, 24, 25; responsa prudentum, 20, 21, 24; reverence of romans for, 22; statute law, 25; twelve tables, 1, 8, 9, 12, 20 rousseau, on social contract, 181 savigny, 171; on occupancy, 150 slavery, american opinions of, 96; influence of law of nature upon, 97; roman system, 95-97 status, definition of, 100 testamentary law, adoption and testation, 114, 115; church's influence upon, 102; corporation, aggregate and sole, 110; hindoo law, 113, 114; hindoo compared with roman, 113; law of nature, 103, 104; roman law, 111, 112, 117-123; mancipation, 120, 123; praetorian testament, 123-125; twelve tables, 112, 119, 122; roman family, agnatic and cognatic relationship, 86-89; duties and rights of father, 85; effects of christianity, 92; family, the basis of state, 75, 76; kinship, 86, 88; modification of parental privileges, 84; origin of contract in, 99; origin of law of persons, 89; parental powers, 80-82, 88 theology, and jurisprudence, 208-210; moral, 204, 205 theories, based on roman doctrine, bentham, 69; blackstone, 67; differing from roman glossators, annotations of, 67; grotius, 67; jurisprudence, dissatisfaction with, 70; locke, 67; montesquieu, 68; patriarchal, 72-75 universal succession, 106; in roman law, 106, 107 "universatis juris," 105 village communities, indian, 153, 154, 156, 158; indian, compared with roman gens, 155; indian, elphinstone, _history of india_, 155, 156; russian 157 women, ancient rules defeated by natural law, 90; canon law, 93; english common law, 93, 94; roman family, 90, 91; gradual independence under roman law, 91, 92; roman, perpetual tutelage of, 90; under roman law, 89, 90; subordination to husband in middle ages, 92; subordination of roman to relations, 90 made at the temple press letchworth in great britain kaelbling, charles franks and the online distributed proofreading team the american judiciary by simeon e. baldwin, ll.d. contents part cases cited. i. the nature and scope of the judicial power in the united states. ii. the organization and practical working of american courts. _part i_ chapter i. english origin and early development of the american judiciary. ii. the separation of the judicial power from the legislative and executive in american constitutions. iii. the relations of the judiciary to the political departments of government. iv. the force of judicial precedents. v. the judicial power of developing unwritten law. vi. the judicial power of interpreting and developing written law. vii. the judicial power of declaring what has the form of law not to be law. _part ii_ viii. the organization of the courts of the states. ix. the organization of the courts of the united states. x. relations of the state judiciary to the united states, and of the united states judiciary to the states. xi. relations between the courts of different states. xii. trial by jury. xiii. formalities in judicial procedure. xiv. trial courts for civil causes. xv. probate courts. xvi. bankruptcy and insolvency courts. xvii. criminal procedure. xviii. the exercise of judicial functions out of court. xix. appellate courts. xx. the enforcement of judgments and punishment of contempts of court. xxi. judicial proceedings in territories subject to martial law. xxii. appointment, tenure of office and compensation of judges. xxiii. the character of the bar and its relations to the bench. xxiv. the law's delays. xxv. the attitude of the people towards the judiciary. index. * * * * * table of cases ableman _v._ booth allinson, hale _v._ american insurance co. _v._ canter ames _v._ kansas ames, smyth _v._ andrews, _ex parte_ anthes, commonwealth _v._ bachert _v._ lehigh coal and navigation co. baldwin, robertson _v._ bank, bardes _v._ bank of kentucky, briscoe _v._ bank of mississippi _v._ duncan bank of the u. s., osborn _v._ bardes _v._ bank barrows _v._ bell batchelder _v._ moore baxter _v._ brooks baxter, state _v._ bean _v._ beckwith bean, beckwith _v._ beckham, taylor _v._ beckwith _v._ bean beckwith, bean _v._ bell, barrows _v._ bell's gap r. r. co., mccloskey _v._ bernard, coggs _v._ biddle, green _v._ bidwell, downes _v._ bissell _v._ dickerson blacker, board of supervisors _v._ blair _v._ williams blake _v._ mcclung board of supervisors _v._ blacker bodley _v._ gaither boffman, hickman _v._ bonham's case booth _v._ clark booth, ableman _v._ borden, luther _v._ bowman _v._ middleton boyd _v._ thayer boyd _v._ u. s. bradburn, mincey _v._ bradley _v._ fisher bradley _v._ new haven bradley, _ex parte_ brainerd, fitch _v._ branch, _in re_ brashears, lapsley _v._ briggs _v._ garrett brine _v._ insurance co. briscoe _v._ bank of kentucky brooks _v._ state brooks, baxter _v._ brown, kellogg _v._ brown, parkersburg _v._ bulkley, state _v._ bull, calder _v._ burgess _v._ seligman burr's trial burrows, nudd _v._ bush, perry _v._ bushnell, _ex parte_ calder _v._ bull california, hurtado _v._ call publishing co., western union telegraph co. _v._ calvin _v._ huntley canfield _v._ mitchell canter, american insurance co. _v._ carriere, tua _v._ cherokee nation _v._ georgia, chisholm _v._ georgia christmas _v._ russell church _v._ pearne city of south bend _v._ turner claflin _v._ houseman clark, booth _v._ clarke's appeal cleveland, painesville and eastern r. r. co., _v._ pritschau clymer, norris _v._ cochran, gernon _v._ coffin _v._ united states coggs _v._ bernard cohens _v._ virginia coleman _v._ tennessee coler _v._ tacoma railway and power co. colt, stanley _v._ commonwealth _v._ anthes conn. pipe mfg. co., ward _v._ consul of spain _v._ consul of great britain cooper, application of cooper, _in re_ cooper, in the matter of copass, hall-moody institute _v._ croswell, people _v._ cunningham, state _v._ danbury, hoyt _v._ dartmouth college _v._ woodward debs, u. s. _v._ debs, _in re_ delaware, lackawanna and western r. r. co., forepaugh _v._ demorest, hutkoff, _v._ dennison, kentucky _v._ deposit bank _v._ frankfort dickerson, bissell _v._ diggs _v._ wolcott donoghue, hanley _v._ dorr _v._ united states dorrance, vanhorne's lessee, _v._ dougherty, lanark _v._ dow _v._ johnson downes _v._ bidwell dred scott _v._ sandford drehman _v._ stifle duncan, bank of mississippi _v._ duncan, johnson _v._ dyson _v._ rhode island co. eakin _v._ raub eckrich _v._ st. louis transit co. ellington, miel _v._ erdman _v._ mitchell exchange bank _v._ rice farmers' loan and trust co., pollock _v._ faulkner _v._ hart finney _v._ guy fish _v._ smith fisher, bradley _v._ fitch _v._ brainerd fletcher _v._ peck flynn _v._ morgan forepaugh _v._ delaware, lackawanna and western r. r. co. frankfort, deposit bank _v._ french _v._ waterbury frost _v._ leighton gaither, bodley _v._ garland, _ex parte_ garrett, briggs _v._ genesee chief, the georgia _v._ stanton georgia, cherokee nation _v._ georgia, chisholm _v._ georgia, worcester _v._ gernon _v._ cochran gibbons _v._ ogden goshen _v._ stonington gould _v._ hudson river r. r. co. grady's case grapeshot, the gray, james _v._ green _v._ biddle griffin _v._ wilcox griswold, hepburn _v._ griswold, united states _v._ grover & baker sewing machine co. _v._ radcliffe groves _v._ slaughter guy, finney _v._ hale _v._ allinson hall-moody institute _v._ co-pass ham _v._ mcclaws hanley _v._ donoghue hanover national bank _v._ moyses hans _v._ louisiana harris, norris _v._ hart, faulkner _v._ hawes _v._ oakland hayburn's case hepburn _v._ griswold heywood, wilcox _v._ hickman _v._ boffman hildreth's heirs _v._ mcintire's devisee hill _v._ smith hill, koehler _v._ hoffman, people _v._ holmes _v._ walton houseman, claflin _v._ houser, state _v._ howle, metropolitan life insurance co. _v._ hoyt _v._ danbury hudson river r. r. co., gould _v._ huntley, calvin _v._ hurtado, _v._ california hutkoff _v._ demorest insurance co., brine _v._ international distillery, pearson _v._ irvine _v._ stone james _v._ gray jecker _v._ montgomery johnson _v._ duncan johnson _v._ people johnson, dow _v._ johnson, mississippi _v._ johnson, state _v._ joint traffic association, united states _v._ judges, state _v._ kansas, ames _v._ katz _v._ walkinshaw kellogg _v._ brown kellogg _v._ warmoth kentucky _v._ dennison kentucky, louisville ferry co. _v._ kepner _v._ u. s. ketcham _v._ mcnamara kilbourn _v._ thompson klein, u. s. _v._ kneedler _v._ lane koehler _v._ hill lachenmeyer, pepin _v._ lanark _v._ dougherty la ninfa, the lane, kneedler _v._ lapsley _v._ brashears lee, state _v._ legal tender cases, the lehigh coal and navigation co., bachert _v._ leighton, frost _v._, lennon _v._ rawitzer, letson, louisville, cincinnati and charleston r. r. co. _v._, little charles, the schooner, u. s. _v._, loan association _v._ topeka, loomis _v._ newhali, lottawanna, the, louisiana, hans, _v._, louisville, cincinnati and charleston r. r. co. _v._ letson, louisville ferry co. _v._ kentucky, luke _v._ lyde, luther _v._ borden, lyde, luke _v._ mccardle, _ex parte_, mcclaws, ham _v._, mccloskey _v._ bell's gap r. r. co., mcclung, blake _v._, mcconnaughy, pennoyer _v._, mcculloch _v._ maryland, mcdaniel, terry _v._, mcdowell _v._ oyer, mcfarland _v._ people, mcintire's devisee, hildreth's heirs _v._, m'kim _v._ voorhies, mcleod's case, mcnamara, ketcham _v._, mcveigh _v._ ripley madison, marbury _v._, main, state _v._, marbury _v._ madison, maryland, mcculloch _v._, mather, rand _v._, merriman _v._ social mfg. co., merryman, _ex parte_, metropolitan life insurance co. _v._ howle, mial _v._ ellington, middleton, bowman _v._, milligan, _ex parte_, miln, new york _v._, mincey _v._ bradburn, mississippi _v._ johnson, mitchell, canfield _v._, mitchell, erdman _v._, montgomery, jecker _v._, moore, _ex parte_, moore, batchelder _v._, morgan, flynn _v._, mormon church _v._ united states, morrill, state _v._, moses taylor, the, moyses, hanover national bank _v._, mutual reserve fund life association, vincent _v._, myers _v._ south bethlehem nash, united states _v._, neagle, _in re_, neff, pennoyer _v._, newhall, loomis _v._, new haven, bradley _v._, new jersey _v._ new york, newman, _ex parte_, new york _v._ miln, new york, new jersey _v._, new york and new england r. r. co., rumsey _v._, new york, new haven and hartford r. r. co., stack _v._, noble _v._ union river logging co., norris _v._ clymer, norris _v._ harris, northern securities co. _v._ united states, norwalk street railway co.'s appeal nudd _v._ burrows oakland, hawes _v._ ogden _v._ saunders ogden, gibbons _v._ ohio and mississippi r. r. co. _v._ wheeler olcott, people _v._ osborn _v._ bank of the u. 8. oyer, mcdowell _v._ parkersburg _v._ brown patterson, william paul _v._ virginia pearne, church _v._ pearson _v._ international distillery pease, starr _v._ peck, fletcher _v._ pennoyer _v._ mcconnaughy pennoyer _v._ neff pennsylvania, prigg _v._ pennsylvania coal co., sanderson _v._ people _v._ croswell people _v._ hoffman people _v._ olcott people _v._ webb people, johnson _v._ people, mcfarland _v._ pepin _v._ lachenmeyer perkins, united states _v._ perry _v._ bush, peters, wheaton _v._ pollock _v._ farmers' loan and trust co. prigg _v._ pennsylvania pritschau, cleveland, painesville and eastern r. r. co. _v._ radcliffe, grover & baker sewing machine co. _v._ rand _v._ mather raub, eakin _v._ rawitzer, lennon _v._ reese, united states _v._ regents _v._ williams rhode island co., dyson _v._ rice, exchange bank _v._ rich, upshur county _v._ ripley, mcveigh _v._ robbins' case robertson _v._ baldwin robinson, _ex parte_ royall, _ex parte_ rumsey _v._ new york and new england r. r. co. russell, christmas _v._ rutgers _v._ waddington sanderson _v._ penn. coal co. sandford, dred scott _v._ saunders, ogden _v._ scott _v._ sandford seligman, burgess _v._ shepherd, state _v._ sheve, u. s. _v._ siebold, _ex parte_ sims' case slaughter, groves _v._ smith, fish _v._ smith, hill _v._ smith, u. s. _v._ smyth _v._ ames social mfg. co., merriman _v._ south bethlehem, myers _v._ sparf _v._ u. s. st. louis transit co., eckrich _v._ stack _v._ new york, new haven and hartford r. r. co. stanley _v._ colt stanley, u. s. _v._ stanton, georgia _v._ starr _v._ pease state _v._ baxter state _v._ bulkley state _v._ cunningham state _v._ houser state _v._ johnson state _v._ judges state _v._ lee state _v._ main state _v._ morrill state _v._ shepherd state _v._ travelers' insurance co. state _v._ ward state _v._ worden state, brooks _v._ stephens, petitioner stifle, drehman _v._ stone, irvine _v._ stonington, goshen _v._ swift _v._ tyson tacoma railway and power co., coler _v._ tassel's case taylor _v._ beckham tennessee, coleman _v._ terry _v._ mcdaniel thayer, boyd _v._ the genesee chief the grapeshot the la ninfa the lottawanna the moses taylor the schooner little charles, u. s. _v._ the thomas jefferson thomas jefferson, the thompson, kilbourn _v._ topeka, loan association _v._ trademark cases travelers' insurance co., state _v._ trevett _v._ weeden tua _v._ carriere turner, city of south bend _v._ tyson, swift _v._ union river logging co., noble, _v._ united states _v._ debs united states _v._ griswold united states _v._ joint traffic association united states _v._ klein united states _v._ nash united states _v._ perkins united states _v._ the schooner little charles united states _v._ reese united states _v._ robbins united states _v._ sheve united states _v._ smith united states _v._ sparf united states _v._ stanley united states _v._ wilson united states _v._ worrall united states, boyd _v._ united states, coffin _v._ united states, dorr _v._ united states, kepner _v._ united states, mormon church _v._ united states, northern securities co. _v._ upshur county _v._ rich vanhorne's lessee _v._ dorrance vincent _v._ mutual reserve fund life association virginia, cohens _v._ virginia, paul _v._ voorhies, m'kim _v._ waddington, rutgers _v._ walkinshaw, katz _v._ walton, holmes _v._ ward _v._ conn. pipe mfg. co., ward, state _v._, warmoth, kellogg _v._, waterbury, french _v._, webb, people _v._, weeden, trevett _v._, western union telegraph co. v. call publishing co., wheaton v. peters, wheeler, ohio and mississippi r. r. co., _v._, wheeler's appeal, wilcox v. heywood, wilcox, griffin _v._, williams, blair _v._, williams, regents _v._, wilson, u. s. _v._, wolcott, diggs _v._, woodward, dartmouth college, _v._, worcester v. georgia, worden, state _v._, worrall, u. s. _v._ additional cases cited in second edition. janvrin v. revere water co., revere water co., janvrin, _v._, o'brien's petition, seery v. waterbury, waterbury, seery _v._ * * * * * part i the nature and scope of the judicial power in the united states * * * * * chapter i english origin and early development of the american judiciary no government can live and flourish without having as part of its system of administration of civil affairs some permanent human force, invested with acknowledged and supreme authority, and always in a position to exercise it promptly and efficiently, in case of need, on any proper call. it must be permanent in its character. only what is permanent will have the confidence of the people. it must always be ready to act on the instant. the unexpected is continually happening, and it is emergencies that put governments to the test. the judiciary holds this position in the united states. the institutions which underlie and characterize it, both of the united states and of each of the states, considered by itself,[footnote: i do not except louisiana, for trial by jury and other institutions derived from the common law have profoundly affected her whole judicial system.] are the outgrowth of those of the thirteen english colonies on the atlantic coast, which declared their independence in 1776. the colonial charters, whether of the proprietary, provincial or republican type, were all equally charters for englishmen, based on the common law of the english people. so far as they granted legislative power, it was generally declared that it should be exercised in conformity, so far as might be practicable, with the laws of england. the proviso to this effect in the roving patent given by queen elizabeth to sir walter raleigh may be taken as a type: "so always as the said statutes, lawes, and ordinances may be, as neere as conveniently may be, agreeable to the forme of the lawes, statutes, government, or pollicie of england."[footnote: poore, "charters and constitutions," ii, 1381.] in the southern new england colonies, when first settled, the common law of england was disowned. they made the little law which they needed for themselves, and as cases which this might not provide for arose, they were to be decided by such rules as the magistrates might think right and warranted by the precepts found in the bible. connecticut continued to insist on this view, with general consistency, until the days of the stamp act, when it became the interest of her people to claim the benefit of the principles of the english constitution and of the common law, on which it was built up.[footnote: colonial records of conn., 1689-1706, 261; conn. stat., ed. of 1769, 1. _cf._ citations by d. davenport, _arguendo,_ in flynn _v._ morgan, 55 connecticut reports, 132-134, from mss. in the state archives.] in early massachusetts the written pleadings often referred to the bible, quoting a text from it as an authority, just as citations now might be made in a lawyer's brief from a legal treatise or reported case.[footnote: publications of the colonial society of mass., iii, 324.] as was anticipated in the raleigh patent, it was found from the first and everywhere that if the common law was to be applied to the rough conditions of colonial life some modifications were necessary. these the colonists were, in the main, left free to make at their pleasure. much of this work came to be done by their legislative assemblies; more by their courts. the assemblies sat but for a few days in the year: the courts were always open to suitors, and sessions of the inferior ones were frequent. the assemblies, however, were themselves courts. at first they kept in their own hands a large share of judicial power. they acted as the early parliaments of england had acted, both as a legislature and a judicial tribunal. in several colonies they long kept to themselves the right of deciding private controversies on equitable principles. they sat as a court of review, to grant new trials or review judgments. they passed acts of attainder. they settled insolvent estates.[footnote: wheeler's appeal, 45 connecticut reports, 306, 314.] this mingling of judicial with legislative functions is a thing to be tolerated only while the foundations of a government are being laid. as the roman plebeian, in the days before the twelve tables, clamored for a known and certain law, so the common people of the early colonies insisted that from a similar want they held their rights too much at the will of their rulers. in the colony of new haven a code was early framed; but there they built on a written law--the bible.[footnote: new haven colony records, i, 12, 115, 116; ii, 569, 570.] in massachusetts, where they were more anxious to avoid conflict with the common law, the problem was a serious one. winthrop, writing in 1639, describes it with his usual clearness and discrimination thus: "the people had long desired a body of laws, and thought their condition very unsafe while so much power rested in the discretion of magistrates.... two great reasons there were, which caused most of the magistrates and some of the elders not to be very forward in this matter. one was want of sufficient experience of the nature and disposition of the people, considered with the condition of the country and other circumstances, which made them conceive that such laws would be fittest for us which should arise _pro re nata_ upon occasions, etc., and so the laws of england and other states grew, and therefore the fundamental laws of england are called customs, consuetudines. 2. for that it would professedly transgress the limits of our charter, which provide we shall make no laws repugnant to the laws of england, and that we were assured we must do. but to raise up laws by practice and custom had been no transgression."[footnote: winthrop, "history of new england," i, 322.] the tendency toward partial codification proved too strong to be resisted, and all the colonies soon had a substantial body of written law published in official form. the exercise of judicial power by colonial legislatures was steadily contracting throughout the century preceding the revolution. where there were governors appointed by the crown, they discouraged it. the courts were correspondingly strengthened. law became better understood and more wisely applied. a large body of local statute law had grown up by 1750, much of it already venerable by antiquity, and intimately interwoven with the life of the people. its form and color differed in different colonies. religious views and preferences had had a large effect in shaping it. so had influences proceeding from the civil war, the commonwealth, and the restoration. yet at bottom there was the same substructure in virginia as in massachusetts, in pennsylvania as in new york. it was the common law of england as it existed in the days of the last of the tudor and first of the stuart reigns. this had been built into the foundations of american institutions and kept firm in place, not only because the colonists were habituated to it[footnote: fitch _v._ brainerd, 2 day's (conn.) reports, 163, 189.] and themselves both english subjects and the descendants of englishmen of those days, but largely by force of the british system of colonial government through the lords of trade and plantations. the ancient _aula regis_, in which the king dispensed justice at first hand, had survived in another form in the tribunal known as the king in council. this, so far as the colonies were concerned, was represented by a standing committee of the privy council. it was substantially the same thing as the court of star chamber, but since 1640 without the extraordinary penal jurisdiction which gave that so evil a reputation for americans.[footnote: maitland, "justice and police," 5.] this committee was after this restriction of its powers known as the lords of trade and plantations,[footnote: it was afterward and is now called the judicial committee of the privy council.] and by its authority from the time when england first had colonies of any commercial importance (and those in america were the first) their statutes could be set aside and the judgments of their courts, when of any considerable magnitude and importance, reversed.[footnote: see paper on appeals to the lords of trade from colonial courts, by harold d. hazeltine, report of the american historical association for 1894, 299.] this revisory jurisdiction, though questioned and occasionally evaded or thwarted by the colonial governments, became solidly established long before the revolution.[footnote: "two centuries' growth of american law," 12, 18, 264.] in but one case did a colonial court formally ignore a judgment of reversal. this was in 1738, when the superior court of judicature of massachusetts, at its sittings in york county, in what is now the state of maine, disobeyed an order of the king in council made on appeal from one of its judgments, and when it was repeated a year later, adhered to its original position.[footnote: frost _v._ leighton, publications of the colonial society of massachusetts, iii, 246.] the amount involved was trifling, and the lords of trade and plantations made no further effort to enforce their order. the natural effect of this court of appeal at london was to keep the public proceedings of the colonies in line with the common law of england, so far as related to its fundamental principles. a certain uniformity of result was thus secured. american law, in its substantial framework, was not allowed to vary from english law in any case where agreement was reasonably practicable. there was a central power at london ever ready to enforce the charter rule. the colonial courts, if their judgments were to stand, must proceed in conformity to the british constitution. justice must be administered by due course of law, and to find out what that due course was the judges were forced to study the english law-books. when blackstone's commentaries were first published, more copies were sold in america than in england.[footnote: "two centuries' growth of american law," 20.] the colonial bench was weaker than the colonial bar. judicial station was at first always, and later often, a mere incident of political office. when judges were appointed whose functions were wholly judicial, their selection was largely dictated by political considerations or executive favor. few of them were really learned in the law. of the bar many were. that of massachusetts did not conceal its disapprobation when lieutenant-governor hutchinson, although he had never been a member of it, was appointed chief justice in 1760. none of the judges of the first superior court in that colony were lawyers.[footnote: winsor, "narrative and critical history of america," v, 166.] in some of the others the governor was the chancellor, and in maryland he was at one time the chief justice also.[footnote: steiner, "maryland's first courts," reports of american historical association for 1901, 211; osgood, "the american colonies in the seventeenth century," i, chap. ii; ii, chap. xii.] in several the judges were appointed during the king's pleasure, and the governor removed them at his discretion, without any notice or hearing.[footnote: bancroft, "history of the united states," ii, 279. a notable instance of a removal in consequence in part, at least, of a decision as to the royal prerogative, not relished by the governor, was the case of chief justice lewis morris of new york, in 1733. documents relating to the colonial history of new york, v, 948; vi, 4, 8, 951.] in those colonies which were provided by charter with a court of assistants, this body soon came to act as a judicial court. this took place in the colony of massachusetts bay as soon as the seat of the company's government was transferred from england to america, and took place as a matter of course. divisional courts were frequently held by part of the assistants, with original jurisdiction of minor causes, and all sat semi-annually, or oftener, to try larger ones and hear appeals.[footnote: noble, "records of the court of assistants of massachusetts bay," i, preface; publications of the colonial society of massachusetts, iii, 317.] in connecticut, appellate jurisdiction was originally retained by the general assembly, but when the docket became too crowded, resort was occasionally had to the appointment of a special and temporary commission of appeals to clear it off. as early as 1719, one was constituted for this purpose to hold office for two years. no colony set up a permanent supreme court with full appellate jurisdiction. none probably cared to do this, and none probably thought that it could. the lords of trade and plantations would have rightly thought such a step hardly consistent with the maintenance of their revisory and controlling powers. it would have been too costly to allow two appeals; and for them to reverse a judgment of a colonial supreme court would have been more distasteful to americans than the exercise of a similar power as to a court professedly of superior, not supreme, jurisdiction. new york had a court named supreme, but its business was largely the trial of original causes, and the governor and council claimed the right of reviewing its judgments. the judges in 1765 denied the existence of such a right, but the king in council decided against them.[footnote: hunt, "life of edward livingston," 26.] as soon as regular judges, not members of other departments of the government, were appointed for the highest court, they were generally required to perform circuit duty in the various counties during part of each year.[footnote: see "am. hist. review," iii, 44.] this was a leading feature of the judicial establishment set up in 1686 under sir edmund andros for the "dominion of new england."[footnote: col. rec. of conn., iii, 402, 411.] south carolina, for a hundred years, centered all her judicial business at charleston. no courts sat anywhere else and all the lawyers in the state resided in the city. in the latter part of the eighteenth century she followed the other colonies in establishing a circuit system and county courts.[footnote: morse, "american universal geography," ed. 1796, 690; osgood, "the american colonies in the seventeenth century," ii, 279, 300.] there was occasionally some little approach to english form when the colonial judges went on the circuit. in massachusetts the sheriff or his deputy was accustomed to come out from the court town to meet the judges as they approached it, to open a term of court.[footnote: "life and works of john adams," ii, 280. see chap. xiii.] acts of parliament directly affecting procedure in american courts, and unifying its methods in some particulars, were occasionally passed during the colonial era. such was the act of 1732 (v, geo. ii, chap. vii), making affidavits taken in england admissible in any suit in an american colony to which an englishman might be a party, and providing that all american real estate (including negro slaves employed upon it) should be subject to be levied on for any debts of the owner, although real estate in england could only be taken for debts of a particular kind.[footnote: connecticut promptly passed a statute extending the new remedy thus given, so as to authorize the sale of land belonging to the estate of a deceased person, to pay his debts, if he did not leave sufficient personal estate for that purpose. col. rec. of conn., vii, 444.] other english statutes, passed after the settlement of the colonies, and not in terms applying to them, were often adopted here, either by the enactment of colonial statutes to the same effect or by incorporation into our common law by tacit consent, as interpreted by the courts.[footnote: state _v._ ward, 43 connecticut reports, 489, 494.] the benefit of the writ of _habeas corpus_, which, though issuable at common law, really first took its present shape in 1679, by the act of 31 charles ii, chap. ii, was thought in this country, though not by the lords of trade and plantations, to be a privilege of americans, as british subjects. in some colonies this statute was re-enacted, or, as in virginia, rights under it conceded under the royal prerogative. in others, as in maryland, it was treated as being, by tacit adoption, the birthright of the inhabitants. in the "declaration and resolves" of the first continental congress, they assert "that the respective colonies are entitled to the common law of england," and in the address to the people of great britain they complain that the english settlers in canada "are now the subjects of an arbitrary government, deprived of trial by jury, and when imprisoned cannot claim the benefit of the _habeas corpus_ act, that great bulwark and palladium of english liberty."[footnote: journals of congress, i, 29, 44. a. h. carpenter, "habeas corpus in the colonies," american historical review, viii, 18.] the same sentiments dictated the terms of the ordinance of 1787, under which our first territories were to be organized. one of its leading provisions was this: art. 2. the inhabitants of the said territory shall always be entitled to the benefits of the writ of _habeas corpus_, and of the trial by jury; of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law. a recognized system of jurisprudence had, under the circumstances and from the causes which had been stated, begun to grow up before the revolution. it might fairly be called american, but it was thoroughly english by heredity, and had been shaped by a long succession of english influences, and steadied by the firm hand of english power. the revolutionary war made everything connected with the law of england distasteful to the people at large. the lawyers knew its value: the community did not. public sentiment favored an american law for america. it was quickened by the unfriendly feeling toward the mother country which became pronounced toward the close of the eighteenth century and culminated in the war of 1812. several of the states, new jersey leading off, passed statutes forbidding the citation, in the argument of causes, of any decisions of the english courts made since the declaration of independence. under one of these henry clay, in 1808, was stopped by the supreme court of kentucky when reading in argument from an opinion of lord ellenborough;[footnote: hickman _v._ boffman, hardin's rep., 348, 364.] but after a few years, legislation of this kind, while it might remain formally unrepealed, was treated as obsolete both by court and bar.[footnote: statutes of new jersey, ed. of 1800, p. 436 (1799); morehead and brown, "digest of the statutes of kentucky," i, 613 (1807).] in courts held by unlearned judges, also, english law-books were lightly considered. one of this kind was chief justice livermore, of new hampshire. shortly after the close of the revolution, while presiding on the bench, he stopped a lawyer who was reading from one with the inquiry whether he thought that the members of the court did not "understand the principles of justice as well as the old wigged lawyers of the dark ages did."[footnote: "memoir of jeremiah mason mason," 29.] but whether cited or not from their original sources, the settled doctrines of english law were sure in the end to permeate both bar and bench in every state. the roman law and the law of nations were studied in preparation for admission to the american bar more generally and more thoroughly in the years immediately preceding and following the revolutionary era than they have been since.[footnote: see chap. xxiii.] the law student was also set then to reading more books on english law than he is now.[footnote: see report of the american bar association for 1903, p. 675.] he learned his profession by the eye and not by the ear. his only lectures were the occasional arguments on a demurrer or writ of error which he might hear in the court room, and these were a reiteration of rules laid down in english law-books. the reason why he read more of roman law than is now required in legal education was mainly that there was more time for it, since of english law reports there were then few, and of american none. when the revolution broke out it also became important in helping to explain the practice in prize courts. these were set up (or existing common law courts invested with admiralty jurisdiction) in all the states, and american privateers gave them not a little business. in order to secure uniformity of decision in matters so directly affecting our foreign relations, the continental congress claimed the right to exercise appellate functions, through a standing committee of its members, and in 1780 organized a formal court for the purpose, styled "the court of appeals in cases of capture." three judges were appointed and provided with a register and seal. they held terms at hartford, new york, philadelphia and richmond during the next six years. on an average about ten cases were disposed of annually, and the decisions were generally conceded to have been fair and well supported by the rules of admiralty and the law of nations.[footnote: see jameson, "essays on the constitutional history of the united states," i; j. c. bancroft davis, "federal courts prior to the adoption of the constitution," 131 united states reports, appendix, xix.] the influence of french ideas was strong in shaping constructive work in american politics, as the colonies passed into states; but aside from the separation of the judicial department from the executive and legislative it had little effect upon the courts until the opening of the nineteenth century. then the principles of the roman law, particularly as presented and illustrated by the french jurists, were seized upon by kent and story, and served greatly to expand and enrich our jurisprudence.[footnote: "memoirs and letters of james kent," 117.] the course of events which has been sketched left certain ideas in regard to the position and powers of the judiciary with respect to the other branches of the government firmly imbedded in the american mind. these may be thus summarized: judges were to proceed according to established rules, so far as established rules might exist. they were to proceed in analogy to established rules as to points which no established rule might cover. they were to look to the common law and political institutions of england to determine what rules were established, as to points not covered by local usage or legislation. local usage or legislation might, within certain limits, depart from the common law and even from the political institutions of england. there were limits to such departure, and a colonial statute or judgment which transgressed them could be annulled or set aside by a higher authority. this higher authority might be judicial or political, or one which shared both judicial and political functions. * * * * * chapter ii the separation of the judicial power from the legislative and executive in american constitutions from the colonial system of legislatures by which all the powers of government were at times exercised to the modern american state, with its professed division of them into three parts, and assignment of each to a distinct department, was a long step. so far as the united states were concerned, the weakness of the government under the articles of confederation had been universally acknowledged and was generally thought to come in part from throwing whatever powers the states had granted, in a mass, into the hands of the continental congress. nevertheless, the constitution of the united states is not framed upon the principles of a strict tripartite division. it places the executive power in the hands of the president, all the legislative powers which were granted by it in congress, and the judicial power in certain courts; but it does not follow the earlier state constitutions in declaring that whatever was vested in either of these three depositaries was and must always be different in kind from that vested in any other of them. on this point virginia set the fashion, but the sonorous phrase of the massachusetts constitution of 1780 is the most familiar, in its declaration (part the first, art. xxx) that "in the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men."[footnote: the last declaration of purpose was taken from harrington's _oceana_, in which it is said that while a monarchy is an empire of men, "a commonwealth is an empire of laws and not of men." works, london ed., 35, 42, 224.] it was from an unwillingness to commit themselves to such a principle that the people of connecticut and rhode island preferred for many years to be governed in the old way by their legislatures, without a written constitution. during this period, the general assembly of connecticut repeatedly exercised the power of setting aside judgments of courts, and its right to do so was sustained by the supreme court of the united states.[footnote: calder _v._ bull, 2 root's reports, 350; 3 dallas' reports, 386.] the courts of the united states were called upon at an early day to determine how far congress could invest them with functions that were not judicial or not to be performed in a judicial manner. an act was passed requiring the circuit courts to pass upon claims for invalid pensions, their decisions to be subject to review by congress. the performance of this duty was declined, and the attempt to put a judgment of a court under the control of the legislature made the refusal so plainly proper that the act was repealed at the next session.[footnote: hayburn's case, 2 dallas' reports, 409.] it was easier for the united states to maintain from the first this general scheme for the division of power than for the early states. their people had grown up under too different a plan of government. it had become so familiar to them that they could hardly believe that it had been abolished. tradition for them interpreted their new constitutions and overmastered them. the state legislatures therefore continued for a time to claim some control over the judiciary, or at least a right to criticise and censure its doings.[footnote: see chap. vii.] in many of our state constitutions, after providing for a distribution of powers between three separate departments, instead of absolutely prohibiting any of them from exercising any power properly belonging to either of the others, it is declared that this shall not be done, except as may be expressly allowed in subsequent articles. such a declaration was proposed in the draft of the constitution of connecticut, reported to the convention which framed it in 1818; but on objection it was struck out.[footnote: journal of the constitutional convention of connecticut, pp. 78, 55.] it was thought better to leave the relations of the departments to each other to be worked out in practice, and for nearly eighty years afterward the legislature continued to exercise some judicial power. it sometimes gave equitable relief to carry out a charitable purpose in a will, which would otherwise fail. it interfered repeatedly in probate proceedings. it released sureties in judicial recognizances. it set aside judgments. [footnote: wheeler's appeal, 45 connecticut reports, 306, 315; stanley _v._ colt, 5 wallace's reports, 119.] a decision of the supreme court of errors sanctioned the practice;[footnote: starr _v._ pease, 8 conn. reports, 541, 547.] but in 1898 the court overruled its former opinion, and held that as the three departments were made separate and distinct, it needed no express constitutional declaration to prevent either from invading the province of the other, and so that no power not judicial in its nature could be conferred upon the courts.[footnote: norwalk street railway company's appeal, 69 conn. reports, 576; 37 atlantic reporter, 1080.] but may not a power be judicial in its nature and yet not wholly so? it is practically impossible to establish in every instance a plain line of demarcation between legislative, executive and judicial functions. courts, for instance, make rules of practice. in one sense this is a judicial act, because it is one appropriate for the judiciary. in another point of view it is an act of legislation. in nothing does it resemble the act of judging a litigated cause. impeachments are both political and judicial proceedings, but american constitutions leave them wholly to the legislative department. franchises to exist as an artificial person are the proper subjects of legislative grant, but with the growing insistence in our constitutions on absolute equality of right, they are now almost everywhere given only by general laws. such a law will offer incorporation for certain purposes to any who choose to avail themselves of the privilege by fulfilling certain conditions and filing certain papers in a public office. but what shall be the nature of this office, and who shall decide whether these conditions have been fulfilled and these papers filed? the legislature may select an executive, a legislative, or a judicial office. it may entrust this power of decision to an executive, a legislative, or a judicial officer. it has, in fact, in some states, entrusted it to a court, and authorized it, if it decided in favor of those claiming incorporation, not only to record the decision, but to issue the paper which shows that they are entitled to possess and enjoy the franchise. it is safe to assert that in no state are the functions of the courts purely judicial. many belonging to the administration of the methods of political government are in all intrusted to judicial officers either originally or by way of review. some of these concern such matters of internal police, as the enforcement of laws to preserve the public health or to regulate the sale of intoxicating liquors, and the establishment and repair of highways.[footnote: application of cooper, 22 new york reports, 67, 82, 84; norwalk street railway company's appeal, 69 conn. reports, 576; 37 atlantic reporter, 1080; bradley _v._ new haven, 73 connecticut reports, 646; 48 atlantic reporter, 960; upshur county _v._ rich, 135 u. s. reports, 467, 477; janvrin _v._ revere water co., 174 mass. rep. 514; 55 north eastern rep. 381.] instead of creating a system of bureaus and prefects, we have adhered to the english plan of administering local and county concerns through justices of the peace, courts of quarter-sessions, and county or parish courts.[footnote: see maitland, "justice and police," 85.] of the affairs committed to such authorities some pertain to the conduct of elections, and courts are frequently empowered to appoint election officers or clerks, because it is felt that thus a wise impartiality in selection can best be attained.[footnote: people _v._ hoffman, 116 illinois reports, 587; 5 northeastern reporter, 596; 56 american reports, 793; _ex parte_ siebold, 100 u. s. reports, 371, 397.] it is vital to the proper working of government under a written constitution that these constitutional restrictions on the powers of the courts should not be too strictly interpreted. every step in the progress of civilization makes this the more obvious. no absolute trinity of governmental form can be maintained in human society, as the relations of each individual to his fellows, and of the state to all, become, and necessarily become, more numerous and complicated. in every state that department which in practice proves the strongest will push its jurisdiction furthest. it may be said, in view of its now established power to decide between higher and lower forms of law,[footnote: see chap. vii.] that the judiciary has proved the strongest. the legislature, as has been stated, have found it a convenient depositary of many quasi-legislative and quasi-executive functions, and this also has largely increased its power. the theory of the french philosophers that all the powers of government could be divided into three parts, each bearing a name descriptive only of itself, is not supported by the practical experience of americans. there are functions that might as well be assigned to one of these parts as to another, or made into a fourth and called administrative.[footnote: under authority of her present constitution, virginia in 1904 organized a state commission for the supervision of corporations, which has both judicial and administrative functions.] the constitution of the united states recognizes this in effect. it makes the senate an executive council, as well as a legislative chamber. it allows congress to vest the appointment of any inferior officers in the courts (art. ii, sec. 3). in practice this power has been freely used. the supreme court of the united states has had occasion to consider this question in connection with the statutes defining the jurisdiction of the circuit courts. it extends to certain "suits." but what is a suit? it is not necessarily a proceeding at common law or in equity or admiralty. it may be a statutory process. "even," they say, "an appeal from an assessment, if referred to a court and jury, or merely to a court, to be proceeded in according to judicial methods, may become a suit within the act of congress."[footnote: upshur county _v._ rich, 135 u. s. reports, 467, 473.] so in regard to a proceeding by the government to take land for public use on payment of due compensation, they observe that "the general rule with regard to cases of this sort is, that the initial proceeding of appraisement by commissioners is an administrative proceeding, and not a suit; but that if an appeal is taken to a court, and a litigation is there instituted between parties, then it becomes a suit within the meaning of this act of congress."[footnote: _ibid_., 475.] in one point of considerable importance express constitutional provisions generally narrow the jurisdiction of american, as compared with english courts. each house of the legislature is made the final judge of the returns and qualifications of its members. in england, election contests as to a seat in the house of commons has been made by act of parliament the subject of judicial determination. this avoids partizan decisions and is so far good. it diminishes, however, the independence of the legislative house in which the seat is contested. this is jealously guarded by our traditions as well as our constitutions. the practice of wearing hats during the sessions of the house of commons was an expression of the early feeling of the english commons on this subject. they would not uncover before speaker or king. in some of the early american legislatures the same thing was done. hats were occasionally worn in the house of representatives at washington as late as the second quarter of the nineteenth century.[footnote: hunt, "life of edward livingston," 301. they were worn in the continental congress on occasions of ceremony. mcmaster, "history of the people of the united states," i, 105.] on the other hand, american courts interfere more readily than the english to protect a citizen from arrest by legislative authority. each house of the british parliament has large inherited powers over those who may treat it with contempt. each house of an american legislature has some powers of this description, but they are far narrower ones.[footnote: kilbourn _v._ thompson, 103 u. s. reports, 168.] * * * * * chapter iii the relations of the judiciary to the political departments of government courts of claims are the only permanent special courts for the disposition of causes arising from the acts of public officials.[footnote: one exists for the united states; and one for new york.] the system of administrative law prevailing on the continent of europe, by which all such matters are withheld from the ordinary tribunals, is totally unknown here. if the secretary of war of the united states should do some act to a private citizen, which may be justified by his official powers, but otherwise would not be, he may be summoned to answer for it before any civil court having jurisdiction of the parties. so may even the president of the united states be sued after the expiration of his term. the president, while president, however, cannot be compelled to obey a summons to appear in court. the country cannot spare him to go here and there in obedience to a writ. chief justice marshall issued one against president jefferson, directing him to appear at the trial of aaron burr and bring with him a certain paper. jefferson declined to obey, and there was no attempt to enforce the subpoena. had there been, it would have been found that he had taken measures for his protection.[footnote: thayer, "john marshall," 79.] marshall's action was based on an admission by the counsel for the government that a summons to testify could lawfully issue, though they denied that it could be accompanied by a direction to produce documents. this admission is now generally thought by the legal profession to have been ill-advised. if the president could be summoned at all, he could be compelled to obey the summons, and nothing could be more unseemly or inadmissible than an attempt of that nature by the judiciary against the executive power of the united states. but while there is nothing like an administrative court for the disposition of causes against individuals in the united states, considered as a collection of states or of people within those states, more freedom has been used by congress in providing for the territories. this has been conspicuously the case in regard to the philippines. by the act of congress of july 1, 1902, they were left under the supervision of the war department, in which there was constituted a "bureau of insular affairs," the business assigned to which "shall embrace all matters pertaining to civil government in the island possessions of the united states subject to the jurisdiction of the war department; and the secretary of war is hereby authorized to detail an officer of the army whom he may consider especially well qualified to act under the authority of the secretary of war as the chief of said bureau." the officer filling the position of chief published in 1904 this account of the practical working of the provisions made for the disposition of matters of legal controversy occurring on the islands: "the establishment of a judicial system in the philippines affords a means for the adjudication of litigated questions between the inhabitants and of many questions respecting the jurisdiction and authority of officials of that government. whenever possible, controversies are referred to those tribunals. in some instances questions have arisen affecting the action or authority of officers of the executive department of that government in matters controlled by the discretion of the administrative branch and affecting the administration of civil affairs. these questions are considered and determined by the war department, upon investigation and report by the law officer."[footnote: _national geographic magazine_ for june, 1904, p. 251.] under our american constitutional system, the only courts of an administrative or political nature for calling public officers directly to account for a breach of public duty are our courts of impeachment. these act only occasionally, and when specially convened for the purpose of hearing charges against a particular individual. they do not grant relief to any party injured by the wrongful acts which are the subject of the accusation. they sit only to punish the public wrong. in constituting courts of impeachment, the control of the cause is generally given to officers of the legislative department, but judicial officers are often joined with them. such a tribunal was long maintained in new york, of which the senators formed the majority, but in which the chancellor and judges of the supreme court also sat. the first constitution of south carolina, adopted in 1778, contained a similar provision (art. xxiii). in most states the senate alone constitutes the court for trying impeachments, but should the governor be thus brought before them, the chief justice is added to it, and presides. a similar provision is contained in the constitution of the united states as respects the president. the main reason for putting such a proceeding under judicial direction is to avoid giving the second in rank of the executive magistracy, whose function it generally is to preside over the senate, a position of authority over his chief, in a proceeding which, if successful, would put him in his place. it also, of course, tends to promote a trial in accordance with all the rules of law. the court in such a proceeding cannot be regarded as fully organized until the chief justice is present. it is then first competent to prescribe the rules to govern it during the progress of the cause. this was the ruling of chief justice chase on the impeachment of president johnson, which was tacitly acquiesced in by the senate. new york originally not only gave her legislature a share in judicial power, but her judges a share in that of legislation. her constitution of 1777 provided for a council of revision, consisting of the governor, the chancellor, and the judges of the supreme court, to whom all bills which passed the senate and assembly should be presented for consideration; and that if a majority of them should deem it improper that any such bill should become a law they should within ten days return it with their objections to the house in which it originated, which should enter the objections at large in its minutes, and proceed to reconsider the bill; and that it should not become a law unless re-passed by a vote of two-thirds of the members of each house. for forty years this remained the law, and the council of revision contained from time to time judges of great ability, chancellor kent being one. during this period 6,590 bills in all were passed. one hundred and twenty-eight of them were returned by the council with their objections, and only seventeen of these received the two-thirds vote necessary to re-enact them.[footnote: poore, "charters and constitutions," ii, 1332, 1333, note.] an obvious objection to this method of legislation is that the judges who, as members of a council of revision, find nothing objectionable in a bill presented for their scrutiny, must naturally have a certain pride of opinion to conquer before, should its constitutionality become afterward the subject of litigation before them, they could be in a frame of mind to render an unprejudiced judgment. one of the bills which came under the eye of chancellor kent as a member of the council was afterward the source of controversy before him in court. he adhered to his original views, but was overruled by the supreme court of the united states. chief justice marshall gave the opinion, and half apologetically alluded to this circumstance in these words: the state of new york maintains the constitutionality of these laws; and their legislature, their council of revision, and their judges, have repeatedly concurred in this opinion. it is supported by great names--by names which have all the titles to consideration that virtue, intelligence, and office can bestow. no tribunal can approach the decision of this question without feeling a just and real respect for that opinion which is sustained by such authority; but it is the province of this court, while it respects, not to bow to it implicitly; and the judges must exercise, in the examination of the subject, that understanding which providence has bestowed upon them, with that independence which the people of the united states expect from this department of the government.[footnote: gibbons _v._ ogden, 9 wheaton's reports, 1.] a device for obtaining the same end--the views of the judges in advance of the enactment of a law--in a different way, has been from the first quite common. this is for the legislature to ask them specially for their opinion as to the constitutionality of a bill before it is put upon its passage. an analogous practice has always obtained in england, and was followed in several of the colonies. some of our state constitutions expressly authorize such proceedings. in the absence of such authority, the judges can properly decline to comply with the request. it always asks them to prejudge a question which may later come before them in court, and to prejudge it without hearing any of the parties whom it may affect injuriously.[footnote: see the reply of the judges of the supreme court of the general assembly, 33 conn. reports, 586.] president washington, in 1793, brought a matter of this kind before the justices of the supreme court of the united states. it was during the controversy with m. genet, the french minister, as to his right to refit a captured english merchantman as a privateer at an american port, and then send her out for a cruise. by the advice of his cabinet, the president asked the justices a series of questions comprehending all the subjects of difference as to the proper exposition of the provisions of our treaties with france under which her minister made claim. they replied that they deemed it improper to enter the field of politics by declaring their opinions on questions not growing out of some case actually before them.[footnote: marshall, "life of washington," v, 433, 441.] no further request of this kind has since been made by any of the political departments to a court of the united states, except such as have been addressed to the court of claims. idaho, in her constitution (art. v, sec. 25), has sought to give the legislature the benefit of judicial advice at the opening of each session as to what laws it might be desirable to enact. the judges of her trial courts are annually to report to those of her supreme court such defects and omissions in the laws as their knowledge and experience may suggest, and the latter, after considering these suggestions, are then, within the next five months, to report to the governor such defects and omissions, both in the constitution and in the laws, as they may find to exist. the duty of the judiciary, in the course of lawsuits, to compare a statute, the validity of which is called in question, with the constitution, and by the decision indirectly to affect legislation, is treated of elsewhere.[footnote: chap. vii.] the courts of the united states, in controversies involving matters affecting the foreign relations of the general government, acknowledge in a certain degree a dependence upon the executive department. if they have a treaty to construe, any construction of it as to the point in question already given by the state department will be followed, unless plainly wrong. if it becomes material to determine whether a certain country is subject to a certain power, and the president of the united states has dealt with that question (as by recognizing or refusing to recognize a minister accredited to the united states), his action will be accepted as conclusive. his proceedings would have like weight if taken within the limits of his authority with respect to the government of one of the united states.[footnote: luther _v._ borden, 7 howard's reports, 1.] when questions of this nature arise in a lawsuit between private parties, the courts can, without notice to them, seek information by communicating directly with the department of state. it will be given by a letter or certificate, and this will be received as a conclusive mode of proof or as aiding the court in taking judicial notice of historical facts. so an official letter or certificate from the minister or consul of a foreign power can be received and used as evidence as to facts in controversy peculiarly within the knowledge of that government.[footnote: gernon _v._ cochran, bee's reports, 209.] in prize cases, which must all be brought before the district court, an appeal is allowed directly to the supreme court of the united states, although the judgments of the district court generally are reviewable only in an intermediate court. this secures a prompt decision by the highest judicial authority of a question which necessarily affects, in some degree, the foreign relations of the united states. but there may be cases affecting a vessel claimed as a prize which are not brought to secure her forfeiture and so are not prize cases. they may even to a greater extent affect our relations to foreign governments. how far can the courts, in dealing with these, govern their action by that of the executive? this question came up for decision shortly after the adoption of the constitution. great britain and spain were at war. a british man-of-war brought a spanish felucca into charleston, claiming her as a prize, and she was advertised for sale. no proceedings to have her adjudicated a lawful prize had been taken before any court. the spanish consul applied to the circuit court for an injunction against the sale, claiming that for the united states to permit it would be a breach of neutrality and contrary to the law of nations. the british consul resisted the application on the ground that a sale could not be forbidden in the absence of any act of congress on the subject, except by the president. the chief justice, who sat in the case, gave the opinion, which was that there could be no lawful sale without the permission of the united states; that it was a matter proper to be dealt with by the president; that the court would not say how he should deal with it; but that an injunction might issue to stop the sale until further order, unless permission should be sooner obtained from the president.[footnote: consul of spain _v._ consul of great britain, bee's reports, 263.] here, therefore, an act which might have been a _casus belli_ was stayed by a court until and unless the executive should intervene and permit it. the extradition of criminals under a treaty on the demand of a foreign government presents a debatable ground in respect to the subject now under consideration. the surrender is an executive proceeding and a political act. but the laws may provide for a preliminary inquiry before a court into the propriety of complying with the demand. they certainly provide for a judicial proceeding by writ of _habeas corpus_ to release any one arrested in such a proceeding if held without due cause. is the court before which either of these proceedings may be had at liberty to receive advice or submit to instructions from the president of the united states? this question stirred the country to its depths in 1799. great britain applied to our government for the extradition of a seaman who claimed to be an american citizen and was charged with committing murder on a british man-of-war. he was arrested in south carolina, under a warrant from the district judge, and lodged in jail. there was a treaty of extradition between the two powers covering cases of murder, but no particular machinery had been provided for regulating the surrender. the british consul asked the judge who had made the commitment to order his delivery to him. the judge doubted his power to do so. thereupon the secretary of state, by authority of the president, wrote him that the president advised and requested him to make the surrender, if satisfied with the proofs of criminality, as he (the president) was of opinion that any crime committed on a man-of-war was committed within the territory of the power to which it belonged. the judge complied with this request, after a public hearing on a writ of _habeas corpus_, under which he ordered the man in question to be brought before him, and in the course of it this letter was shown to counsel on both sides. the surrender became at once the subject of heated debates in congress, but the president's course was ably and conclusively defended by marshall on the floor of the house,[footnote: united states _v._ nash _alias_ robins, bee's reports, 266; robbins' case, wharton's state trials, 392.] and the course pursued has since been followed in substance by our extradition statutes.[footnote: united states revised statutes, secs. 5270, 5272.] these provide for a hearing of a judicial character, and then, if that results in a determination that a surrender should be made, it may be ordered on a warrant from the state department. on the other hand, the peculiar provision of the constitution of the united states which makes treaties the supreme law of the land calls upon the courts to enforce them according to whatever interpretation they may conclude to give them, even if it should differ from that adopted by the president or the state department. if a treaty prescribes a rule by which the rights of private individuals are to be determined, and those rights are such as can be appropriately made the subject of a lawsuit, the court before which it may be brought has as full authority to construe the treaty as it would have to construe an act of congress, were the matter in controversy one of a statutory nature. they cannot be appropriately made the subject of a lawsuit so long as the questions involved are under active consideration in the course of diplomatic negotiation and pending for decision before the president. let him, however, once make his decision and the doors of the court fly open. these principles are well illustrated by some incidents of our controversy with great britain over the seal fisheries in behring sea. there was a serious dispute between the two governments as to the limits of our jurisdiction over the waters adjacent to alaska. we maintained that it ran to the middle of behring's straits and from the meridian of 172â° to that of 193â° west longitude. great britain contended for the three-mile limit. pending diplomatic negotiations as to this point, one of our revenue cruisers seized a canadian vessel which was engaged in seal fishing nearly sixty miles from the alaskan coast, and she was condemned, on a libel by the united states, by an admiralty court in alaska. the owner in 1891 applied to the supreme court of the united states for a writ to prohibit the enforcement of this decree of confiscation. the attorney-general of canada filed in this suit papers in aid of the application, stating that he did so with the knowledge and approval of the imperial government, and that he would be represented by counsel employed by the british minister resident. the writ was refused on technical grounds, but the court, through chief justice fuller, made these observations as to the merits of the cause: in this case, her britannic majesty's attorney-general of canada has presented, with the knowledge and approval of the imperial government of great britain, a suggestion on behalf of the claimant. he represents no property interest in the vessel, as is sometimes done by consuls, but only a public political interest. we are not insensible to the courtesy implied in the willingness thus manifested that this court should proceed to a decision on the main question argued for the petitioner; nor do we permit ourselves to doubt that under such circumstances the decision would receive all the consideration that the utmost good faith would require; but it is very clear that, presented as a political question merely, it would not fall within our province to determine it.... we are not to be understood, however, as underrating the weight of the argument that in a case involving private rights, the court may be obliged, if those rights are dependent upon the construction of acts of congress or of a treaty, and the case turns upon a question, public in its nature, which has not been determined by the political departments in the form of a law specifically settling it, or authorizing the executive to do so, to render judgment, "since we have no more right to decline the jurisdiction which is given than to usurp that which is not given."[footnote: _in re_ cooper, 143 united states reports, 472, 503.] in the following year a convention was concluded between the united states and great britain for the submission of the question of our jurisdiction over behring's sea to arbitration. the arbitration took place and the award supported the british contention. congress passed an act to give it full effect. the convention provided in terms that "the high contracting parties engage to consider the result of the proceedings of the tribunal of arbitration as a full, perfect and final settlement of all the questions referred to by the arbitrators." in july, 1891, before the award was made, an american vessel engaged in the seal fishery outside the three-mile limit was seized by one of our revenue cutters. a libel was filed by the united states in the admiralty court for alaska and she was condemned. her owners appealed to the circuit court of appeals, on the ground that the seizure was made outside of the jurisdiction of the united states. if so, they were entitled to her release. the court held that the limits of this jurisdiction were conclusively settled by the award, and thus adverted to the claim that they should treat the case as the supreme court of the united states had dealt with that which followed the seizure of the year before: this question has been settled by the award of the arbitrators, and this settlement must be accepted "as final." it follows therefrom that the words "in the waters thereof," as used in section 1956, and the words "dominion of the united states in the waters of behring sea," in the amendment thereto, must be construed to mean the waters within three miles from the shores of alaska. in coming to this conclusion, this court does not decide the question adversely to the political department of the government. it is undoubtedly true, as has been decided by the supreme court, that, in pending controversies, doubtful questions which are undecided must be met by the political department of the government. "they are beyond the sphere of judicial cognizance," and "if a wrong has been done, the power of redress is with congress, not with the judiciary." the cherokee tobacco, 11 wall., 616-621. but in the present case there is no pending question left undetermined for the political department to decide. it has been settled. the award is to be construed as a treaty which has become final. a treaty when accepted and agreed to becomes the supreme law of the land. ... the duty of courts is to construe and give effect to the latest expression of the sovereign will; hence it follows that, whatever may have been the contention of the government at the time _in re_ cooper was decided, it has receded therefrom since the award was rendered, by an agreement to accept the same "as a full, complete, and final settlement of all questions referred to by the arbitrators," and from the further fact that the government since the rendition of the award has passed "an act to give effect to the award rendered by the tribunal of arbitration."[footnote: the la ninfa, 75 federal reporter, 513, 517.] the degree of confiscation was therefore reviewed. it will be noticed that this result was reached in a suit by the united states in one of their own courts, in which the claim of the government was one of territorial boundary, and yet that the court overruled the claim and threw out the suit on the strength of an award made in pursuance of the law of the land. the treaty was the law. this law provided for the award and made it, whichever view should be adopted, final. it was therefore for the court to accept it as final, even against the resistance of the political department of the government, and do justice accordingly. the courts before the revolution, and in some states for half a century after it, served as a kind of political mouthpiece. the institution of the grand jury[footnote: see chap. xvii.] afforded the means. those composing it are personally selected by the sheriff from the principal men in the county. it is the duty of the court to instruct them at the opening of the term which they are summoned to attend as to the law and practice governing the exercise of their functions. frequently this charge was prefaced by an harangue from the judge on the social, moral, religious or political questions of the day.[footnote: "life and works of john adams," ii, 169.] to this the grand jury were not backward in responding with compliments and perhaps presentments. in massachusetts they went even further in 1774. the house of representatives of the provincial assembly impeached the chief justice for accepting a salary from the crown instead of relying on legislative grants, as had been the practice. the council before which the articles were exhibited declined to entertain them. the people, however, felt that the house was right, and this sentiment was manifested at the next sessions of the courts by the grand and petit juries in every county. they refused to take the oaths and stated that they could not take part in proceedings presided over by a judge who was under impeachment. no business was done in court until the following year, when, after the battle of lexington, new judges were appointed by the council.[footnote: "life and works of john adams," ii, 332; x, 240; "principles and acts of the revolution," 100.] sometimes the laws of the state were criticised in this way by judge and jury. in december, 1788, a grand jury in south carolina made this presentment: we present as a grievance of the greatest magnitude the many late interferences of the legislature of the state in private contracts between debtor and creditor. we should be wanting in our duty to our country and regardless of the obligation of our solemn oath and the high trust at this time devolving upon us by operation of the laws of the land, did we omit this occasion between the expiration of one legislature and the meeting of a new representative body, to express our utter abhorrence of such interferences.[footnote: "american museum," vii, appendix ii, 10. _cf. ibid._, 19.] in a similar way unpopular treaties[footnote: mcmaster, "history of the people of the united states," ii, 229.] or acts of congress were formerly attacked. in 1819, the action of the house of representatives as to the introduction of slavery in missouri was the subject of a warm protest from a grand jury in that territory, which closed thus: they hope those restrictions will never more be attempted; and, if they should, they hope by the assistance of the genius of '76 and the interposition of divine providence to find means to protect their rights.[footnote: niles' register, xvii, 71.] the protective tariffs of the united states were frequently presented as grievances in the south during the years preceding the nullification movement in south carolina.[footnote: u. b. phillips, "georgia and state rights," report of the american historical association for 1901, ii, 117.] in 1825, a grand jury in pennsylvania presented as a grievance the suspension of commodore porter from duty for six months under sentence of a naval court martial, approved by the secretary of the navy.[footnote: niles' register, xxix, 103.] in 1827, a grand jury in tennessee presented a "protest against the bold and daring usurpations of power by the present executive of the united states" (john quincy adams), and stated that "being decidedly opposed to the present administration, we have for ourselves resolved to oppose all those we have just reason to suspect to be friendly thereto, and recommend the same course to all our fellow-citizens of blount county."[footnote: niles' register, xxxii, 366.] in 1777, the chief justice of south carolina began his charge to a grand jury with a long statement of the justice of the revolution, its military successes, and the duties of patriotism. the court thereupon ordered "that the political part of the chief justice's charge" be forthwith printed.[footnote: principles and acts of the revolution, 347.] in 1790, judge grimke of the same state took advantage of a similar occasion to comment with severity on those who had opposed the ratification of the constitution of the united states. jealousy had done much to poison their minds, he said, "for it is observable that throughout the whole of the united states a majority of the leaders of the opposition to our newly adopted government are not natives of our soil; hence this pernicious quality of the mind displays itself more widely in america."[footnote: "american museum," viii, appendix ii, 33.] in 1798, when elbridge gerry was the republican candidate for governor of massachusetts, a federalist newspaper reported approvingly a charge of chief justice dana of that state. he had been an ardent politician before going on the bench and had declined a nomination as minister to france during the preceding year. "the learned judge," said the boston _centinel_, "in a forcible manner proved the existence of a french faction in the bosom of our country and exposed the french system among us from the quintumvirate of paris to the vice-president and minority of congress as apostles of atheism and anarchy, bloodshed and plunder."[footnote: centinel of nov. 28, 1798, quoted in austin, "memoirs of elbridge gerry," ii, 296, note.] in 1800, justice chase of the supreme court of the united states made several charges in maryland hardly less objectionable, one of which was afterward unsuccessfully set up by the house of representatives as a ground of his impeachment. the article stating it described the charge as "an intemperate and inflammatory political harangue with intent to excite the fears and resentment of the said grand jury and of the good people of maryland against their state government and constitution." he had, indeed, used this language: you know, gentlemen, that our state and national institutions were framed to secure to every member of the society, equal liberty and equal rights; but the late alteration of the federal judiciary by the abolition of the office of the sixteen circuit judges, and the recent change in our state constitution, by the establishment of universal suffrage, and the further alteration that is contemplated in our state judiciary (if adopted) will, in my judgment, take away all security for property and personal liberty. the independence of the national judiciary is already shaken to its foundation, and the virtue of the people alone can restore it. the independence of the judges of this state will be entirely destroyed if the bill for the abolition of the two supreme courts should be ratified by the next general assembly. the change of the state constitution, by allowing universal suffrage, will, in my opinion, certainly and rapidly destroy all protection to property, and all security to personal liberty; and our republican constitution will sink into a mobocracy, the worst of all possible governments. i can only lament that the main pillar of our state constitution has already been thrown down by the establishment of universal suffrage. by this shock alone the whole building totters to its base and will crumble into ruins before many years elapse, unless it be restored to its original state. all this was less indefensible under the judicial practice of a century ago than it would be now, and there were not enough votes of guilty on the article of impeachment founded upon it to secure a conviction. in the same year, judge alexander addison of the circuit court of pennsylvania was charging a pennsylvania grand jury that the jeffersonians had assumed a name that did not belong to them. "such men," he said, "disgrace the name of republicans by exclusively assuming it. in their sheep's clothing they are ravening wolves."[footnote: wharton's state trials, 47, note.] for this, among other things, he was very properly impeached and removed in 1803, after the republicans came into power in that state.[footnote: mcmaster, "history of the people of the united states," iii, 154.] it is difficult for the american of the twentieth century to conceive how honorable men could so have abused official position.[footnote: wharton's state trials, 376. justice washington made it a rule not to enter into any political questions in his charges unless necessary for the guidance of the grand jury in the work before them, and until 1817, when party feeling had moderated, not to give out copies of any charges for publication. niles' register, xiii, 169.] the cause lies in the extreme rancor which then embittered politics and debased society. federalists and republicans were hardly on speaking terms. many who were actively engaged in politics felt compelled to carry a sword cane for defence if attacked. judge addison's charge brought out an open letter to him in a pittsburgh newspaper, signed by a republican who was on the supreme bench of the state, expressing his astonishment that the people who heard him "were not fired with sudden indignation and did not drag you from your seat and tread you under foot."[footnote: wharton's state trials, 47, note.] on the other hand, at a political banquet of the boston federalists, at about the same time, their approval of judge dana's charges to grand juries was manifested by this toast: "the honorable francis dana, chief justice of the learned associate judges of our supreme judicial court. while the political opinions delivered from the bench are dictated by intelligence, integrity and patriotism, may they be as highly respected as have ever been its judicial decisions."[footnote: austin, "life of elbridge gerry," ii, 297, note.] the judiciary may, and often do, command and compel inferior executive officers to do specific official acts which it is their plain duty to perform, or issue an injunction to prevent their doing an official act which is plainly beyond their powers. heads of departments of the state or the united states are subject to this power.[footnote: noble _v._ union river logging co., 147 u. s. reports, 165; smyth _v._ ames, 169 u. s. reports, 466.] so in the federal courts are governors of states acting under a law repugnant to the constitution of the united states.[footnote: pennoyer _v._ mcconnaughy, 140 u. s. reports, 1.] no such writ will be issued, however, when the case is of a political nature and involves the exercise of any official discretion,[footnote: georgia _v._ stanton, 6 wallace's reports, 50.] nor under any circumstances against the president of the united states.[footnote: mississippi _v._ johnson, 4 wallace's reports, 475.] as to whether it can in some cases be granted by a state court against the governor there is a conflict of authority. the development of party government in the united states has led of recent years to much legislation for the regulation of party conventions and party organization in the interest of fair dealing and public order. statutes of this nature relating to the form and heading of ballots for use at popular elections are common. if conflicting factions contend for the right of issuing ballots in the name of the same party, the courts may be called upon to decide between them on an application for an injunction or writ of mandamus. the legislature, however, may provide that some standing agency or committee of a party shall decide finally upon any such conflicting claims, and in such case their decision will be conclusive upon the courts.[footnote: state _v._ houser, wisconsin reports; 100 northwestern reporter, 964.] when title to a political office is contested, the courts, unless there is some constitutional provision to the contrary, may be appealed to for a decision. this is true even in respect to the office of governor.[footnote: boyd _v._ thayer, 143 u. s. reports, 135; taylor _v._ beckham, 178 u. s. reports, 548; state _v._ bulkeley, 61 connecticut reports, 287.] it is a remedy which has been, though in rare instances, abused for party purposes.[footnote: such a case was the issue by a district judge of the united states in 1872 of an injunction-order under which the marshal took possession of the louisiana state-house, and excluded those claiming to be the legislature of the state. gibson, "a political crime," 347 _et seq._; senate report, 457, forty-second congress, third session.] the right of the governors, which exists under the constitutions of several states, to ask the judges of the supreme court for their opinion on any question of law, may throw upon them the delicate task of deciding in a collateral proceeding who is governor, if the title to the office is claimed by two. this was the case in florida in 1869. the house of representatives had commenced proceedings of impeachment against the governor. it was on the first day of a special session of the assembly. there could be no such session unless a quorum was present in each house. there were but twelve senators in attendance. the lieutenant-governor regarded the proceedings as regular, and assumed to exercise the office of governor pending the trial. the governor claimed that twelve senators were not a quorum, and that the proceedings were void. on these points he requested the opinion of the justices of the supreme court, and they gave one supporting his contentions.[footnote: 12 florida reports, 653.] a few weeks later a regular session was held, at which a quorum was present in each house, and the proceedings of the special session were treated as void.[footnote: s. s. cox, "three decades of federal legislation," 518, 520.] in the early days of the united states, under the present constitution, the chief justices of the supreme court of the united states at times filled also a political office, and so were invested at the same time with political and judicial functions. john jay, the first chief justice, while holding that office, was made our envoy extraordinary to great britain, and spent a year abroad in that capacity. his acceptance of the position, however, occasioned general and unfavorable comment. john marshall was both chief justice and secretary of state for five weeks, during which he held one term of the supreme court. oliver ellsworth was both chief justice and minister to france at the same time, and for a period of over a year, during which he held one term of court. nothing of this kind has since occurred, nor would it now be thought consistent with the proprieties of judicial office. when the result of the election of the president and vice-president of the united states was contested in 1877, congress, as a temporary makeshift, bridged over the difficulty by creating a commission of fifteen, five from each house and five from the supreme court, to decide upon the returns. four of the justices were especially selected by the act passed for this purpose, two of them being republicans and two democrats, and they were directed to choose the fifth.[footnote: 19 united states statutes at large, 228.] they agreed on justice bradley, a republican. the congressional members were equally divided politically. the result proved to be that on every important question in controversy every republican voted for the view favorable to the republican candidates and every democrat voted for the other. the country could not fail to see that judges, as well as other public men, may be insensibly influenced by their political affiliations, and regarded the whole matter as a new proof of the wisdom of separating the judiciary from any unjudicial participation in the decision of political issues.[footnote: see wilson, "division and reunion," 286; s. s. cox, "three decades of federal legislation," 655; pomeroy, "some account of the work of stephen j. field," 440.] justices of the supreme court have since sat on international tribunals of arbitration, but this is, or should be, a strictly judicial proceeding. in the state constitutions, the judges of the highest courts are now often expressly forbidden to accept other office,[footnote: see chap xxii.] but in the absence of such a prohibition it would be considered as unbecoming. formerly and during the first third of the nineteenth century this was in many states not so. some were then judges because they held legislative office and as an incident of it. others did not hesitate to accept political positions. of the six federalist electors chosen in new hampshire at the presidential election of 1800, three were judges of her supreme court.[footnote: wharton's state trials, 47.] judges have frequently taken part in constitutional conventions of their states. in virginia, chief justice marshall was a member of that of 1829, and judge underwood of the district court presided over that of 1867. chancellor kent and chief justice spencer were members of that of 1821 in new york. it may well be doubted if the advantages to be gained by their counsel in such a position are not outweighed by the evil of exposing it to criticism as dictated by selfish considerations. a member of the new york convention thus alluded upon the floor to the measures supported by the chief justice and chancellor: he regretted that such an opinion and plan had been proposed by the chief justice. it must have arisen from the politics of the supreme court. the judges of that court had been occupied so much in politics that they had been compelled to press upon the public a system that had nothing else to recommend it than such a relief to themselves from the burthen of official duties as would leave them to the free exercise of their electioneering qualifications. but for this, the chief justice might have shown a holt, or a mansfield. the elevated character of the chancellor had been often asserted and alluded to. he meant no disrespect to that honorable gentleman. he respected him as highly as any man when he confined himself to the discharge of the official duties of his office; but when he stepped beyond that line; when he became a politician, instead of being his fancied oak, which, planted deeply in our soil, extended its branches from maine to mexico, he rather resembled the bohon upas of java, that destroyed whatever sought for shelter or protection in its shade.[footnote: reports of the proceedings and debates of the convention of 1821, 615.] the pardoning power is essentially of a political nature. judicial officers are to do justice. mercy is an act of policy or grace. a pardon after conviction presupposes guilt. nevertheless, in a few states this royal prerogative of pardoning has been committed to a board of officers, headed by the governor, of which some of the judiciary are members. there is this advantage in it, that judges know best how fully circumstances of extenuation are always taken into account by the court before pronouncing sentence, and therefore cannot but exercise a restraining power against the influences of mere sentimental promptings to inconsiderate clemency. it may be said, in general, that the tendency towards keeping the judiciary apart from any active connection with the executive department has steadily increased since the first quarter of the nineteenth century. when our position as a neutral power, in 1793, involved us in serious questions affecting the rights of great britain and france, washington's cabinet advised him that the ministers of those countries be informed that the points involved would be referred to persons learned in the law, and that with this in view the justices of the supreme court of the united states be invited to come to the capitol, six days later, "to give their advice on certain matters of public concern, which will be referred to them by the president."[footnote: jefferson's writings, library ed., i, 370.] nothing of this nature would now be dreamed of, under any conditions. * * * * * chapter iv the force of judicial precedents the antipathy to legal codification, which, until recent years, was a characteristic both of the english and american bar, and still prevails, though with diminishing force, has given, and necessarily given, great force to judicial precedents. it is mainly through them that with us unwritten law passes into written law. precedent is a fruit of reason ripened by time. time, it has been said, is the daughter of antiquity and takes place after reason, which is the daughter of eternity. precedent rests on both. a legal code framed in any american state is little more than the orderly statement of what american courts have decided the law to be on certain points. when reason is set to work upon the solution of a problem growing out of the affairs of daily life, it often happens that two minds will pursue different paths and perhaps come to different results. not infrequently neither result can fairly be pronounced untenable. an english judge has said that nine-tenths of the cases which had ever gone to judgment in the highest courts of england might have been decided the other way without any violence to the principles of the common law. every lawsuit looks to two results: to end a controversy, and to end it justly; and in the administration of human government the first is almost as important as the last.[footnote: hoyt _v._ danbury, 69 conn. reports, 341, 349.] certainty is of the essence of justice; but among men and as administered by their governments it can only be such certainty as may be attained by an impartial, intelligent, and well-trained judge. if such a judge has, after a proper hearing, declared what, under a particular set of circumstances, the law is which determines the rights of the parties interested, this declaration makes it certain, once and forever, as far as they are concerned, and helps to make it certain as to any others in the future between whom there is a controversy under circumstances that are similar. if it is the declaration of a court of supreme authority it is ordinarily accepted as of binding force by any inferior courts of the same government, and treated with great respect and as high evidence of the law by any other of its superior courts, as well as by courts of other states before which a similar question may be presented. a decision on a point of law by the highest court in a state does not, however, bind its lower courts as absolutely as would a statute. an inferior court may disregard it and decide the same point another way if it be fully satisfied that the action taken by the court above was ill-considered and erroneous. it is possible that in such event, on reconsideration, the court of last resort may reverse its original position.[footnote: a good instance of this is furnished by the case of johnson _v._ people, 140 illinois reports, 350; 29 northeastern reporter, 895. in mcfarland _v._ people, 72 illinois reports, 368, the supreme court had stated in its opinion, that if two unimpeached witnesses gave the only testimony as to a certain point material to the plaintiff's case, and testified in contradiction of each other, the case failed for want of proof. many years later a charge to the jury to this effect was asked and refused in an inferior court. an appeal was taken to the supreme court, and there mr. justice schofield, the author of the original opinion, thus disposed of it: "although in mcfarland _v._ people, 72 iii., 368, the writer of this opinion expressed the belief that a similar instruction was free of legal objection, his remarks in that respect were unnecessary to a determination of the case then before the court, and they were made without sufficient consideration, and are manifestly inaccurate. they are now overruled. the question of competency is one of law, and therefore for the court; but the question of credibility,--that is, of worthiness of belief,--and therefore the effect of the competent evidence of each witness, is one of fact, and for the jury."] if not, that acquires by this attack a double force. chief justice bleckley of georgia once remarked that courts of last resort lived by correcting the errors of others and adhering to their own. nevertheless, they have often, years after formally announcing a certain legal doctrine in one of their opinions, declared it to be unsound, and overruled the case in which it was laid down. they do this, however, with natural and proper reluctance, and never if this doctrine is one affecting private rights of property and has been followed for so long a course of time that it may be considered as a rule on which the people have relied in exchanging values and transferring titles. the public, however, have rights to be regarded as fully as individuals, and if a right of private ownership has been adjudged to exist, which involves a public loss, the precedent thus created might be overruled with less hesitation than one would be determining rights and correlative obligations that were purely private. thus the north carolina courts for seventy years held that a public office was the private property of the incumbent. no other courts in the united states took that view, and it has, by a recent decision, been repudiated in north carolina.[footnote: mial _v._ ellington, 134 north carolina reports, 131; 46 southeastern reporter, 961; 65 lawyers' reports annotated, 697.] still more are public interests to be regarded when a question arises as to reversing a decision as to the proper construction of a constitutional provision. if a judicial mistake be made in construing a statute it is easily remedied. the next legislature can amend the law. but a constitution can only be amended with extreme difficulty and by a slow process. if the court falls into error as to its meaning, the correction must ordinarily come from its own action or not at all. hence an opinion on a matter of constitutional construction is less to be regarded as a final and conclusive precedent than one rendered on a matter of mere private right. it has been the position of some american statesmen and jurists that judicial decisions on points of constitutional construction were not binding upon the executive or legislative department of the government. president jackson asserted this with great force in his message to the senate of july 10, 1832, disapproving the re-charter of the bank of the united states. he conceded, however, that a judicial precedent may be conclusive when it has received the settled acquiescence of the people and the states. but while such acquiescence may strengthen the authority of a decision, it can hardly be regarded as that which gives it authority. that comes from the fact that it is an exercise of the judicial power of the government in a case for the disposal of which this judicial power has been properly invoked. the decision of the court in mcculloch _v._ maryland[footnote: 4 wheaton's reports, 316. see willoughby, "the american constitutional system," 44, 123.] unquestionably settled forever, as between the cashier of the bank and the state of maryland, that the bank was a lawful institution. that in osborn _v._ the bank of the united states[footnote: 9 wheaton's reports, 738.] reaffirmed it as between the bank and the treasurer of the state of ohio. it would be intolerable if such judgments were not in effect equally conclusive for the determination of all controversies between all men and all states growing out of the creation of such a corporation. practically, then, the opinion of the executive department to the contrary could only be of importance in such a case as jackson had in hand; that is, in its influencing executive action in approving or disapproving some proposed measure of legislation. it could not disturb the past. the authority of a judicial precedent is weakened if it comes from a divided court, and especially if a dissenting opinion is filed in behalf of the minority. a silent dissent indicates that the judge from whom it proceeds is not so impressed by the fact, or the importance to the public, of what he deems the error of the majority that he thinks it worth while to express the reasons which lead him to differ from them. no departure from precedent in any american court has ever awakened so much feeling as that by the supreme court of the united states in 1872, when it decided that congress could make government notes a legal tender for debts contracted before the law was passed.[footnote: the legal tender cases, 12 wallace's reports, 457, 529.] it had held precisely the contrary two years before,[footnote: hepburn _v._ griswold, 8 wallace's reports, 603.] but it was by a bare majority and in the face of a strong dissenting opinion. in the opinions filed in the second case stress was laid upon this division of the court.[footnote: 12 wallace's reports, 553, 569. see george f. hoar, "autobiography," i, 286.] the word "established" is often used to describe the kind of precedent to which courts are bound to adhere. what serves to establish one? long popular usage, repeated judicial affirmations, and general recognition by approved writers on legal topics. of these, in fact, the last is probably the most powerful. lawyers and courts, in countries without codes, get their law mainly from the standard text-books. such authors as coke, blackstone, kent and cooley are freely cited and relied on as authorities by the highest tribunals.[footnote: see, for instance, western union telegraph co. _v._ call publishing co., 181 united states reports, 101; louisville ferry co. _v._ kentucky, 188 united states reports, 394, 397.] it is by the writings of such men that judicial precedents are sifted and legal doctrines finally clothed in appropriate terms and arranged in scientific order. the english courts long ago declared it to be a rule of law to prevent perpetuities that no estate in lands could be created which was not to commence within the compass of a life or lives of persons then existing, with an exception intended to favor a minor heir. american courts accepted this rule, but some of them construed it as meaning that no estate in lands could be created which was to continue after the expiration of such a period. this construction was shown by professor john c. gray, in a work on "perpetuities," to be unwarranted, and since its publication the cases which had proceeded on that basis have been generally treated as erroneous. the nature of a legal presumption, also, had been misconceived by several american courts. it had been treated as evidence of facts.[footnote: coffin _v._ united states, 156 united states reports, 432.] professor j. b. thayer, in his "preliminary treatise on evidence,"[footnote: pages 337, 566-575.] argued so forcibly against this view that in at least one state a decision in which it had been taken has been formally overruled.[footnote: vincent _v._ mutual reserve fund life association, 77 connecticut reports, 281, 291; 58 atlantic reporter, 963.] the court of appeals of new york once held in a carefully prepared opinion that a railroad might be built along the shore of a navigable river, under authority from the state, without first making compensation to the riparian proprietors, whose access to the waters might thus be obstructed.[footnote: gould _v._ hudson river railroad co., 6 new york reports, 522.] in a text-book written by chief justice cooley, this decision was justly criticised,[footnote: cooley on constitutional limitations, 670.] and not long after the publication of that work it was formally overruled.[footnote: rumsey _v._ new york and new england railroad co., 133 new york reports, 79; 30 northeastern reporter, 654; 15 lawyers' reports annotated, 618.] it is safe to say that its fate was largely the result of the comments thus made by a distinguished jurist, whose only motive could be to maintain the integrity and consistency of legal science. the general doctrine of the courts, which is commonly expressed by the rule "_stare decisis_," was never better stated than by chief justice black of pennsylvania, in these words: when a point has been solemnly ruled by the tribunal of the last resort, after full argument and with the assent of all the judges, we have the highest evidence which can be procured in favor of the unwritten law. it is sometimes said that this adherence to precedent is slavish; that it fetters the mind of the judge, and compels him to decide without reference to principle. but let it be remembered that _stare decisis_ is itself a principle of great magnitude and importance.... a palpable mistake, violating justice, reason and law, must be corrected, no matter by whom it may have been made. there are cases in our books which bear such marks of haste and inattention, that they demand reconsideration. there are some which must be disregarded, because they cannot be reconciled with others. there are old decisions of which the authority has become obsolete, by a total alteration in the circumstances of the country and the progress of opinion. _tempora mutantur_. we change with the change of the times, as necessarily as we move with the motion of the earth. but in ordinary cases, to set up our mere notions above the principles which the country has been acting upon as settled and established, is to make ourselves not the ministers and agents of the law, but the masters of the law and the tyrants of the people.[footnote: mcdowell _v._ oyer, 9 harris' reports, 423.] generally, overruling a former decision is due to a change of circumstances, which has given the court a new view-point. a marked instance of this occurred in 1851, in proceedings before the supreme court of the united states. more than a quarter of a century before, a suit in admiralty for seamen's wages on an inland river had been dismissed by the district court of kentucky for want of jurisdiction, and on appeal this action had been affirmed. mr. justice story gave the opinion of the court, and said that a court of admiralty could only take cognizance of such a claim when the services were rendered at sea or upon waters within the ebb and flow of the tide.[footnote: the thomas jefferson, 10 wheaton's reports, 428.] this was undoubtedly a true statement of what had always been the doctrine of both english and american courts. but out of what did this doctrine spring? from the fact that in england there were no navigable waters except those in which the tide ebbed and flowed, and that in the united states, up to that time, there were none of a different kind which had been largely used for commercial purposes. twenty years passed. steam navigation had opened the great lakes and the great rivers of the country to a profitable carrying trade. the day was dawning when the bulk of american shipping was to be employed upon them. a suit in admiralty was brought against a ship for sinking another on lake ontario. the defendants put in an answer relying on the doctrine laid down by story. the district court overruled it. the case came by appeal to the supreme court, and in an opinion by chief justice taney the appeal was dismissed. "the conviction," he said, referring to the opinion of mr. justice story, "that this definition of admiralty powers was narrower than the constitution contemplated, has been growing stronger every day with the growing commerce on the lakes and navigable rivers of the western states.... these lakes are in truth inland seas. different states border on them on one side and a foreign nation on the other. a great and growing commerce is carried on upon them between different states and a foreign nation, which is subject to all the incidents and hazards that attend commerce on the ocean. hostile fleets have encountered on them and prizes been made, and every reason which existed for the grant of admiralty jurisdiction to the general government on the atlantic seas applies with equal force to the lakes. there is an equal necessity for the instance and for the prize power of the admiralty court to administer international law, and if the one cannot be established neither can the other.... the case of the _thomas jefferson_ did not decide any question of property or lay down any rule by which the right of property should be determined.... the rights of property and of parties will be the same by whatever court the law is administered. and as we are convinced that the former decision was founded in error, and that the error, if not corrected, must produce serious public as well as private inconvenience and loss, it becomes our duty not to perpetuate it."[footnote: the genesee chief, 12 howard's reports, 443, 451.] but without any change of circumstances, the proper desire of all american courts to keep their common law in harmony with that of the other states is often sufficient to induce the abandonment of a doctrine once distinctly asserted.[footnote: city of south bend _v._ turner, 156 indiana reports, 418; 60 northeastern reporter, 271.] the consistency of american law as a whole is immeasurably more important than the consistency of the law of any single state. sometimes a court of last resort treats a doctrine which it had formerly asserted as manifestly unsound and abandons it without stopping to give a reason or even to overrule the decision which first announced it. illinois for a long generation adopted the rule that if an injury occurred to one man through the concurring negligence of himself and another, but his negligence was slighter than that of the other, he might hold the latter responsible for the damages suffered.[footnote: andrews, "american law," 255, 1027.] it was not a doctrine justified by the common law nor generally held in this country, and in 1894 the supreme court of the state refused to recognize it, with little or nothing more than this brief _ipse dixit_: "the doctrine of comparative negligence is no longer the law of this court."[footnote: lanark _v._ dougherty, 153 illinois reports, 163; 38 northeastern reporter, 892.] occasionally a case is overruled because it has been forgotten. an early decision in massachusetts (loomis _v._ newhall[footnote: 15 pickering's reports, 159.]) had affirmed the position that if a statute required contracts of a certain kind to be put in writing, and a contract of that kind, but embracing also a different and distinct matter not touched by the statute, was made orally, it was wholly void. such a rule was illogical and unsound, and in a later decision the same court, forgetting that it had indorsed it, said so, and said so when it was not necessary to the decision.[footnote: irvine _v._ stone, 6 cushing's reports, 508, 510.] subsequently, both these cases having been brought to its attention, it affirmed the latter, though remarking that "what was there said on this point was not essential to the decision of that case, and would have been omitted or modified if loomis _v._ newhall had been then remembered."[footnote: rand _v._ mather, 11 cushing's reports, 1, 5.] the authority of an opinion as a precedent on any point is always proportioned to the necessity of determining that point in order to support the judgment which was rendered. some judges write treatises instead of decisions or in addition to decisions. whatever goes beyond that which is required to show that the judgment is the legal conclusion from the ascertained facts is styled in law language _obiter dictum_. it may be interesting and even persuasive, but it is not an authoritative statement of law. it may grow to be such by adoption in subsequent cases. the court of king's bench in england was called on, at the beginning of the eighteenth century, to say whether if a man undertook as a friendly act, and not for pay, to cart another's goods, and did it carelessly, he was bound to answer for any damage that might result. there were four judges who heard the case, of whom three gave their opinions.[footnote: coggs _v._ bernard, lord raymond's reports, 909.] two of these opinions were confined to the precise point of law on which the case turned. in the third, chief justice holt seized the opportunity to lay down the law of england as to all sorts of contracts arising out of the reception by one man of the goods of another. this he did mainly by setting forth what were the rules of the roman law on the subject, but not referring to their roman origin, and quoting them, so far as he could, from bracton, an english legal writer of the thirteenth century, who had also stated them as english law. for four or five centuries these rules had been laid down in an unofficial treatise, but the courts had not fully recognized them. now the chief justice of england had given such recognition in the amplest manner. meanwhile the trade of england had reached a point at which some definite rules on all these matters had become of the utmost importance. the bar were only too glad to advise their clients in accordance with lord holt's opinion. it was not long before it was universally practiced upon, and no case in the english language touching contract relations of that nature is of greater importance as a precedent. yet it became such not because of its intrinsic authority as a judgment, so much as on account of its orderly and scientific statement of a whole body of law of a kind that the people needed and for the origin of which--whether at rome or london--they cared little, so long as it had been accepted by the highest judicial authority in the realm. on the other hand, the greatest judges have often, in delivering the opinion of the court, asserted doctrines the consideration of which was not essential to the decision, and later retracted the assertion on fuller consideration or seen the court in a later case retract it for them. two of the great opinions of chief justice marshall are marbury _v._ madison[footnote: 1 cranch's reports, 137.] and cohens _v._ virginia.[footnote: 6 wheaton's reports, 264.] in the first the court held that it had no jurisdiction to command the secretary of state to deliver a commission executed under the preceding administration, because, although congress had assumed to confer it, congress had no power to do so; and in defending this position marshall observed that the constitution defined the jurisdiction of the supreme court over cases brought there in the first instance, and that in this clause of the constitution affirmative words had the force of negative words so far as to exclude jurisdiction over any other cases than those specifically mentioned. in the second case this observation was relied on by virginia to defeat the power of the court to review a state judgment. but, said the chief justice, "it is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. if they go beyond the case they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.... in the case of marbury _v._ madison, the single question before the court, so far as that case can be applied to this, was whether the legislature could give this court original jurisdiction in a case in which the constitution had clearly not given it, and in which no doubt respecting the construction of the article could possibly be raised. the court decided, and we think very properly, that the legislature could not give original jurisdiction in such a case. but in the reasoning of the court in support of this decision some expressions are used which go far beyond it.... the general expressions in the case of marbury _v._ madison must be understood with the limitations which are given to them in this opinion; limitations which in no degree affect the decision in that case or the tenor of its reasoning." he then proceeded to dispose of the case in hand by saying that virginia having obtained an erroneous judgment against cohens, cohens had a right to appeal, and the suit still remained a suit by a state against him and not by him against a state. unfortunately, here again came in next an _obiter dictum_. if, he said, this were not so, there was another principle equally decisive in support of the jurisdiction, namely, that the constitution gave the united states judicial power over all cases arising under the constitution or laws of the united states without respect to parties. nearly a hundred years later a state was sued in the courts of the united states on a cause of action arising under the constitution, and cohens _v._ virginia was relied on as a precedent. "it must be conceded," was the reply of the supreme court, "that the last observation of the chief justice does favor the argument of the plaintiff. but the observation was unnecessary to the decision, and in that sense extra-judicial, and though made by one who seldom used words without due reflection, ought not to outweigh the important considerations referred to which lead to a different conclusion."[footnote: hans _v._ louisiana, 134 united states reports, 1, 20.] it may be added that decisions on a point not material to the cause are generally made without the benefit of previous argument by counsel. the lawyers will naturally address themselves to the controlling questions, and if well trained will see what these are quite as clearly as the court. it is the argument at the bar, in which different views of law are presented and each defended by men of learning and ability, which enables the judge, after hearing both sides and weighing all that is said in behalf of one against all that is said in behalf of the other, to come to the true conclusion. the romans recognized this in their rule as to the force of precedent in a matter of customary law. the first thing to ask was whether "_contradicto aliquando judicio consuetudo firmata sit_."[footnote: "digest," 1, 3, _de legibus_, etc., 34.] the retrospective effect which a refusal to follow a former decision may have in disturbing vested rights being one of the most cogent reasons for adhering to precedent, there is less objection to departing from it when the decision can be so limited as to have only a future operation. this is occasionally feasible. thus the high court of errors and appeals of mississippi by an early decision held that on the dissolution of a bank all its rights and liabilities were extinguished. thirty years later the supreme court of the same state overruled that decision, declaring it "condemned by reason and the principles of modern and enlightened jurisprudence," but nevertheless applied it as a controlling precedent to a case arising out of the dissolution of a bank which had been incorporated previously to the time when the original decision was made.[footnote: 1 bank of mississippi _v._ duncan, 56 mississippi reports, 165.] the effect of overruling a former opinion may also be limited by the dual character of our government. the courts of the united states follow the decisions of the state courts in the determination of matters of state law. if a state law is held by the courts of the state to have a particular meaning and effect it will be accorded the same in the federal courts. but if a federal judgment is for that reason rendered in a certain form, and there is no appeal, it settles the rights of the parties to the suit forever, even should the state courts afterward reverse their former rulings as being erroneous.[footnote: 2 deposit bank _v._ frankfort, 191 united states reports, 499.] de tocqueville, in his estimate of the american bar,[footnote: 3 "democracy in america," ii, chap. xvi.] speaks of it as devoted to investigating what has been done rather than what ought to be done; to the pursuit of precedent rather than of reason. in a very limited sense this is true. where codes are wanting, former judicial decisions must serve in their place. but it would be a mistake to suppose that it is a large part of the business of american lawyers to search out precedents for the guidance of the courts. most cases, after any facts in dispute are once settled, depend on the application of the simplest processes of ordinary reasoning. no aid from the past is needed for this and none is to be had. it has been well said by an english judge[footnote: 1 james, l. j., in 1875, law reports, 10 chancery appeal cases, 526.] that the clearer a thing is the more difficult it is to find any express authority or any _dictum_ exactly to the point. nor, if there be one, is it to be accepted without regard to the circumstances out of which it arose or the end to be effected by the judgment. a precedent may indeed be used slavishly, but so it may be used in the free spirit in which it was conceived. many an argument at the bar, however, is ruined by an excessive anxiety to repeat the _ipsissima verba_ of some ancient opinion, when the soul of it is the only thing of value. and occasionally courts are chargeable with pursuing the letter of some of their former deliverances rather than the spirit which called them forth and gave them all their vitality. * * * * * chapter v the judicial power of developing unwritten law the english common law was and is an unwritten law. to find it one has to look in legal treatises and reports of judicial decisions. its historical development has been not unlike that of rome. in rome, as in england, there were in early times written enactments or governmental declarations of standing rules on but few points. some of these writings were of special importance, such as the twelve tables of rome and the _magna charta_ of england. these were regarded as so bound up with the very life of the people as to have a place by themselves, and a superior force to anything to the contrary to which the free consent of the people was not formally given. but in general romans and englishmen preferred to make custom their law, and to let this law grow "not with observation," but insensibly from day to day as the needs of their social organization might be found to require. it was a wise preference, and founded on a better philosophy than they knew--than the world knew, until the theory of evolution was demonstrated by darwin and applied to governmental science by spencer. a customary law for a people of advancing civilization and power must expand with corresponding rapidity. there will soon be disputes as to what it is on certain points and a demand for some authoritative information as to this. in rome, the priests gave it at first, and then the lawyers. in england, the priests never gave it, as priests. there was no sacred college of law. priests took part in legislation. a priest, at the king's right hand, was his spokesman in doing equity. but it was from the first the king as a judge, or the king's judges deputed by him and sitting for him, who settled controverted questions of common law. for the roman and for the englishman the first representatives of government who could be called judges were primarily and principally executive officers. the roman _prã¦tor_ was not given judicial functions because he had legal attainments. the _aula regis_ of early england was composed of the great officers of state. the chief justiciar, however, soon ceased to be prime minister. his associates on the bench, as law became a recognized profession, came to be chosen largely for their fitness for judicial work and to be kept at it during the king's pleasure. at rome, on the contrary, the prã¦torship remained a political place, held for a fixed term, and a brief one. information as to the unwritten law applicable to any controversy between parties had therefore to be sought from others. the lawyers could give it; and it was to them, not to the judges, that resort was had. the opinion of a great jurist was for rome what the opinion of a judge was for england. it was commonly accepted as conclusive not only by the people but by the courts. such opinions profess to state what the law was by which rights accrued out of a past transaction. in fact, they often do much more. by declaring that to be the law, and declaring it with authority, they are the first to make it certain that it is the law. the difference between this and making law is not great. the romans at first accorded authority to the opinions (_responsa_) of lawyers only because of the standing and reputation of those who gave them. later the emperors gave an official character and weight to the opinions of certain lawyers of the past. the english always accorded authority to the opinions of their judges, because they spoke for the state. americans from the first have done the same. american judges have exercised these powers of ascertaining and developing unwritten law even more freely than english judges. they were forced to it as a result of applying the common law of one people to another people inhabiting another part of the world and living under very different social conditions. in doing this it was necessary to reject not a little of what for england had already been definitely settled and universally accepted. the legislatures of the colonies and states rejected much, but the courts rejected more. the legislatures also added much, but the courts added yet more. usages grow up rapidly in new settlements and along frontiers bounded by territory held by savages. of such usages, under the rulings of the courts, many were soon crystallized into law. new inventions and new political conceptions in the eighteenth century began to change the face of the civilized world. the common law as to agency had to be adapted to the operations of business corporations; that as to highways to railroads; that as to contracts by mail to contracts by telegram, and later to contracts by telephone. the whole law of master and servant, which for the english people was bottomed on the relation of land-owner and serf, was to be recast. public assemblies were to be regulated and their proceedings published with greater regard to public and less to private interest.[footnote: barrows _v._ bell, 7 gray's reports, 301; 66 american decisions, 479.] along all these lines and many others the american courts have now for nearly three hundred years been quarrying out american law from the mine of the unwritten law of the people within their jurisdiction. it has been their natural endeavor to make each part of the new system of jurisprudence which they were gradually building up harmonious with every other and to give a certain symmetry to the whole. this has forced them to deduce rule from rule and principle from principle with a freedom for which in older countries of settled institutions there is less occasion. the process has gone on during the last fifty years with ever-increasing rapidity, and for two reasons. there have been more novel questions to meet and there has been a greater wealth of suggestion and precedent at command. not a little, however, of the development of our unwritten law has been and remains of a local character. this is particularly true of that of the pacific states, both on account of climatic conditions and historical antecedents.[footnote: katz _v._ walkinshaw, 141 california reports, 116.] chief justice field of the supreme court of california, afterward so long a member of the supreme court of the united states, did both a constructive and a destructive work in shaping the jurisprudence of that state. he found it seated in a land on which certain institutions of civil law origin had been impressed for centuries and into which other institutions of common law origin had been introduced in recent years. his judicial opinions molded these into one mass, rejecting something from each and retaining something from each.[footnote: pomeroy, "some account of the work of stephen j. field," 38, 45.] some of the results of his creative touch have been the foundation of decisions in distant states, but most were so dependent on local circumstances and conditions as to be incapable of transplantation. but as to all questions of general concern which can be answered from analogies drawn from the common law, the judges of each state--and it is the state judiciary on which the burden of developing unwritten law mainly rests--now find in the reported decisions of the courts of last resort in all the other states a fertile source of supply when they are looking for a rule to fit a case for which the ancient law made no direct provision. keen intellects from the bench, aided perhaps by keener ones from the bar in forty-five different jurisdictions, are discussing the problems of the day as they appear mirrored in litigated causes. what is a new question in one state was set at rest ten years or ten days ago by a judicial decision in another. if the decision was a just and logical deduction from accepted principles of the older law it will probably be followed everywhere. if unjust and illogical, its very faults will serve to guard other courts to better conclusions. how far judges advance along these paths depends greatly on the character of the bar. a judge rarely initiates anything. he is apt to fall into a mistake if he does. the business which he has to do is brought before him by others. it is brought before him in the best way to throw all possible light upon it, because it is set before him from two opposite points of view by two antagonists, each strenuously endeavoring to detect a flaw in the reasoning of the other. these two men have previously given the subject in controversy much careful thought. what views neither presents are generally not worth presenting. as was said in the preceding chapter, it is only in the plainest case that a judge can properly or safely base his decision on a position not suggested at the bar or as to the soundness of which he has not asked the opinion of the counsel at the hearing. the development of law, therefore, whether unwritten or written, is primarily the work of the lawyer. it is the adoption by the judge of what is proposed at the bar.[footnote: see chap. vi, x.] there are obvious limits to this power of developing unwritten law. the courts are not to push forward into a place more appropriate for the legislature to occupy. mr. justice holmes of the supreme court of the united states, when chief justice of massachusetts, stated with his usual elegance and force the bounds within which, as it seemed to him, judicial authority should be kept. in a common law suit against a railroad company for damages suffered by an accident on its road, the defendant had asked the trial court to order the plaintiff to submit to an examination of his person by a physician whom it named, for the purpose of determining what injuries he had really suffered. "we agree," said the chief justice, "that in view of the great increase of actions for personal injuries it may be desirable that the courts should have the power in dispute. we appreciate the ease with which, if we were careless or ignorant of precedent, we might deem it enlightened to assume that power. we do not forget the continuous process of developing the law that goes on through the courts in the form of deduction or deny that in a clear case it might be possible even to break away from a line of decisions in favor of some rule generally admitted to be based upon a deeper insight into the present wants of society. but the improvements made by the courts are made, almost invariably, by very slow degrees and by very short steps. their general duty is not to change, but to work out, the principles already sanctioned by the practice of the past. no one supposes that a judge is at liberty to decide with sole reference even to his strongest convictions of policy and right. his duty in general is to develop the principles which he finds with such consistency as he may be able to attain.... in the present case we perceive no such pressing need of our anticipating the legislature as to justify our departure from what we cannot doubt is the settled tradition of the common law to a point beyond that which we believe to have been reached by equity, and beyond any to which our statutes dealing with kindred subjects ever have seen fit to go. it will be seen that we put our decision, not upon the impolicy of admitting such a power, but on the ground that it would be too great a step of judicial legislation to be justified by the necessities of the case."[footnote: stack _v._ new york, new haven and hartford railroad co., 177 massachusetts reports, 155; 58 northeastern reporter, 686.] the theory of judicial power thus stated carries implications that would not be universally accepted. it is intimated that if the necessity had seemed strong enough to call for the order asked for in the trial court it ought to have been granted, although not justified by any settled rule or authoritative precedent, nor by any clear analogy from such a rule or precedent. this is a view taken, though with less caution and qualification, in a work written by the same hand many years before, which is recognized as a legal classic on both sides of the atlantic. in "the common law,"[footnote: pp. 35, 36.] after discussing some of the reasons which actuate judges in assuming to unfold the unwritten law, it is stated thus: the very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. i mean, of course, considerations of what is expedient for the community concerned. every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy: most generally, to be sure, under our practice and traditions the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to views of public policy in the last analysis.... the truth is that the law is always approaching and never reaching consistency. it is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off. it will become entirely consistent only when it ceases to grow. courts enter on a dangerous ground when, to justify their action, they rely on any rule of public policy not stated in constitution or statute and unknown to the common law. if such was once the habit of the english courts, it was because of social conditions with which they had to deal which no longer exist either in their country or in ours. it is for the judge to adapt old principles rather than adopt new ones. what one man thinks is public policy another, equally clear-headed and well-informed, may not. the safe course for the judiciary is to rely on the legislature to declare it, so far as the common law does not. if, however, the courts of a state are called upon for the first time to declare what any rule of the common law, governing a past transaction, is, or at a given time was, in that state, and this be a doubtful question, the decision virtually calls for the making of a new rule, though under the form of applying an old one, and that will be adopted which may be deemed best calculated to do justice in cases of that particular character.[footnote: seery _v._ waterbury, 82 conn., 567, 571; 74 atlantic reporter, 908.] * * * * * chapter vi the judicial power of interpreting and developing written law as governments must provide some authority to declare what the unwritten law governing any transaction was, so they must provide some authority to declare what the written law governing any transaction means. few statements of any rule or principle can be written out in such a way as to convey exactly the same impression to every mind. thought is subtler than its expression. the meaning of written laws will therefore often be questioned. an answer is sometimes attempted by the authority from which the law proceeded. a king declares what he intended by the terms of an ambiguous edict. a legislature passes an act to declare the meaning of a previous one. but meanwhile rights have accrued. something has been done in reliance upon a certain construction of the law. if it was a right construction, then what was done was lawful, and no subsequent explanation of his intentions by the lawgiver can change this fact. laws are addressed to the community at large, and their meaning must be determined once for all from the language used, however inadequate it may have been to express the real design of those who enacted them, unless that design so clearly appears, notwithstanding an unfortunate choice of words, as to compel an interpretation against the letter but in obedience to the spirit of the enactment. a "declaratory statute"--one declaring what a previous statute meant--is therefore, if it gives it a meaning unwarranted by its terms when so interpreted, only effectual as respects future transactions. as to the past, the meaning is for the courts, and while such a statute may aid, it cannot control them. are the courts to send such questions to a jury or shall the judges decide them? the answer must be determined by considerations applicable to every sort of written paper. if the true construction of an ambiguous document be left to juries, it is evident that there would be no certainty that different results would not be reached in different cases, and probable that unanimity would seldom be attainable. if left to judges, a decision will certainly be reached and, it may be presumed, be reasoned out with care, while if the matter be one of public importance the grounds on which they proceed will be so expressed as to furnish a guide to others toward the same conclusion. the construction of all writings is therefore, by the anglo-american common law, as by the judicial system of most countries, deemed, in case of a question affecting litigated rights, to belong of right to the judges. their possession of this power in the united states is especially necessary in respect to written law. in every government there must be some human voice speaking with supreme authority. it may be that of one man or of many men. the essential thing is that it should be a personal utterance, proceeding from persons to whom, by acknowledged law or custom, submission is due, and one that, if need be, can be enforced by the whole power of the state. the fundamental principle of american government, as laid down in the words of harrington in the oldest of our state constitutions, after which many of the rest, and that of the united states as well, have been largely patterned, is that it is one of "laws and not of men."[footnote: constitution of massachusetts, part the first, art. xxx, quoted more fully in chapter ii.] laws, however, must be administered by men. their meaning, if it be uncertain, must be determined by men. it must be the subject, as the same constitution twice affirms, of "impartial interpretation."[footnote: _id_., preamble, and part the first, art. xxix.] this interpretation is really what gives them force. it is the personal utterance of one speaking for the state, and who speaks the last word. it was simply following english precedent to give this power to the courts as respects legislative enactments. but the principle which required it inevitably extended with equal force to constitutional provisions. the people who adopt written constitutions for their government put their work in a form which must often give rise to questions as to what they intended to express. they rely on the judiciary to secure their enforcement, and the judiciary must enforce them according to what it understands their meaning to be. there is but a step from interpretation to enlargement. every statute is passed to accomplish something. if the object is clear, the rules of anglo-american law allow the court that may be called on to apply it to extend its operation to cases within the purpose evidently intended, although the language used is inadequate fully to express it. this is styled giving effect to "the equity of the statute." even violence can be done to the words, if so only can this judge-discovered intent be made effectual. the rules governing judicial interpretation of statute law fill a good-sized volume. as the roman lawyers worked out by force of logic and analogy an extensive system of private law from the meagre fabric of the twelve tables, so under the lead of american lawyers american judges have applied the processes familiar in the development of unwritten law to the development of our written law, both statutory and constitutional. carlyle said that the roman republic was allowed so long a day because on emergencies the constitution was suspended by a dictatorship. the american republics have a right, upon this theory, to a still longer one. with them the constitution need not be temporarily set aside on an emergency. it may simply be permanently enlarged or limited by judicial construction. a constitution is the garment which a nation wears. whether written or unwritten, it must grow with its growth. as mr. bryce has put it: "human affairs being what they are, there must be a loophole for expansion or extension in some part of every scheme of government; and if the constitution is rigid, flexibility must be supplied from the minds of the judges."[footnote: "studies in history and jurisprudence," 197.] the constitution of the united states declares that no state shall pass any law impairing the obligation of contracts. this proposition being the major premise, chief justice marshall added the minor premise that every charter of a private corporation is a contract, and completed the syllogism by the conclusion that no state can pass any law impairing the obligation of such charters. the counsel who opposed this doctrine urged that every one must acknowledge that neither the men who framed the constitution nor the people who adopted it ever thought that the word "contracts," as so used, embraced "charters." be it so, was marshall's answer, that proves nothing unless you can go farther and satisfy the court that if they had contemplated the construction we put upon it they would have used words to exclude it.[footnote: dartmouth college _v._ woodward, 4 wheaton's reports, 518.] the acquisition of foreign territory is a matter not especially provided for in the constitution of the united states. jefferson hesitated to make the louisiana purchase on this account, and was quite inclined to think, when he did make it, that he had transcended the bounds of his authority. the courts gave the constitution a different interpretation, and stamped this upon it as permanently as if it had been a birthmark. it was done by marshall in a single sentence. "the constitution," he observed, "confers absolutely on the government of the union the powers of making war and of making treaties: consequently that government possesses the power of acquiring territory either by conquest or by treaty."[footnote: american insurance co. _v._ canter, 1 peters' reports, 511, 542.] in the course of the same opinion, the great chief justice led the way toward the doctrine, to be developed later, that the manner in which such territory was to be held and its inhabitants governed need not be such as the constitution prescribed for the territory within one of the united states. it was to be prescribed by congress under its power "to make all needful rules and regulations respecting the territory or other property belonging to the united states." congress had set up a legislative council in the territory of florida, and the legislative council had established a court of admiralty, with judges holding office for four years. the case in hand turned upon the effect of a judgment of that court. it was contended at the bar that it had no effect, because by the express terms of the constitution the judicial power of the united states extended to all cases of admiralty jurisdiction, and must be vested in one supreme court and such inferior courts as congress might ordain. "we have only," was marshall's reply, "to pursue this subject one step further to perceive that this provision of the constitution does not apply to it. the next sentence declares that 'the judges both of the supreme and inferior courts shall hold their offices during good behaviour.' the judges of the superior courts of florida hold their offices for four years. these courts, then, are not constitutional courts in which the judicial power conferred by the constitution on the general government can be deposited. they are incapable of receiving it. they are legislative courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables congress to make all needful rules and regulations respecting the territory belonging to the united states. the jurisdiction with which they are invested is not a part of that judicial power which is defined in the third article of the constitution, but is conferred by congress in the execution of those general powers which that body possesses over the territories of the united states. although admiralty jurisdiction can be exercised in the states in those courts only which are established in pursuance of the third article of the constitution, the same limitation does not extend to the territories. in legislating for them, congress exercises the combined powers of the general and of a state government."[footnote: 'american insurance co. _v._ canter, 1 peters' reports, 511, 546.] it will be perceived that the argument here was that the florida court did not exercise any of the judicial power of the united states because it could not, and that it could not because the judges were not commissioned for life. this left unanswered the deeper question whether any act of congress could serve to support a court existing under authority of the united states, the judges of which were to hold office only for a term of years. it was assumed that the provision for a life tenure did not apply to the florida judges, because if it did the court would be illegally constituted. whether it was legally or illegally constituted was not discussed, except for the general reference to the power of congress to legislate for the territories and exercise the rights of sovereignty over territory newly acquired by contest or treaty. on this decision has been built up our present system of governing territorial dependencies at the will of congress.[footnote: mormon church _v._ united states, 136 united states reports, 1, 43; dorr _vs._ united states, 195 united states reports, 138, 141.] marshall's was the last appointment made to the supreme bench from the federalist party. it was not many years before that party disappeared from the face of the earth. jefferson put three men there representing the other school of political doctrine,[footnote: among jefferson's papers is a description of five men whom he especially considered with reference to filling the first vacancy which occurred during his administration. politics figures largely in the sketch of each. as to william johnson, whom he selected, it is noted that he is of "republican convictions and of good nerves in his political principles." american historical review, iii, 282.] and his appointments were followed by others of a similar nature, until in 1830, after mr. justice baldwin had taken his seat, it became evident that the nationalizing tendencies which the great chief justice from the beginning of the century had impressed upon its opinions were likely soon to cease. he apprehended himself that the court would come to decline jurisdiction in the cases ordinarily presented over writs of error to reverse the judgments of state courts.[footnote: proceedings: massachusetts historical society, 2d series, xiv, 342.] in the following year he thought seriously of resigning. he disliked, he wrote to mr. justice story, to leave him almost alone to represent the old school of thought, but he adds, "the solemn convictions of my judgment, sustained by some pride of character, admonish me not to hazard the disgrace of continuing in office a mere inefficient pageant."[footnote: proceedings massachusetts historical society, 2d series, xiv, 347.] the next chief justice, while far from being of marshall's school, was not one to attempt to overthrow what he had done. in ableman _v._ booth,[footnote: 21 howard's reports, 506.] he insisted on the supremacy of the courts of the united states over those of the states with the utmost firmness, and defended the doctrine on principle with force and ability. the supreme court, however, under taney, was not looked on with much favor by the survivors of the old federalists. "i do not," wrote chancellor kent in 1845 to justice story, "regard their decisions (yours always excepted) with much reverence, and for a number of the associates i feel habitual scorn and contempt."[footnote: proceedings of the massachusetts historical society, 2d series, xiv, 420.] our state constitutions generally guarantee the citizen against deprivation of his rights without "due process of law" or "due course of law." a similar provision was made for the united states by the fifth amendment to their constitution, and since 1868 the fourteenth amendment has established the same rule inflexibly for every state. what is due process of law? it is for the courts to say, and while they have cautiously refrained from assuming to give any precise and exhaustive definition, they have, in many instances, enforced the guaranty at the cost of declaring some statute which they held incompatible with it to be no law. they have also, and much more frequently, supported some act of government claimed to contravene it, and which, according to the ancient common law of england, would contravene it, because in their opinion this ancient law had been outgrown. sir edward coke, whom no expounder of the english common law outranks in authority, in his "institutes," in treating of _magna charta_, referred to the phrase _per legem terrae_, as equivalent to "by the law of the land (that is, to speak it once for all) by the due course and process of law." it is incontestable that due course and process of law in england at the time when the american colonies were planted was understood to require the action of a grand jury before any one could be put on trial for a felony. some of our states have abolished grand juries in whole or part. to review a capital sentence for murder in one of these states, a writ of error was prayed out from the supreme court of the united states in 1883. the constitutionality of the state law was sustained. in disposing of the case the court did not controvert the position that by the english common law no man could be tried for murder unless on a presentment or indictment proceeding from a grand jury. but, said the opinion, while that is due process of law which had the sanction of settled usage, both in england and in this country, at the time when our early american constitutions were adopted in the eighteenth century, it by no means follows that nothing else can be. to hold that every feature of such procedure "is essential to due process of law would be to deny every quality of the law but its age, and to render it incapable of progress or improvement. it would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the medes and persians.... it is most consonant to the true philosophy of our historical legal institutions to say that the spirit of personal liberty and individual right, which they embodied, was preserved and developed by a progressive growth and wise adaptation to new circumstances and situations of the forms and processes found fit to give, from time to time, new expression and greater effect to modern ideas of self-government.... it follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom or newly devised in the discretion of the legislative power in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law."[footnote: hurtado _v._ california, 110 united states reports, 513, 528, 529, 530, 537.] many of our state constitutions specify certain rights as inherent and indefeasible, and among them that "of acquiring, possessing, and protecting property." what is property? american courts have said that it includes the right of every one to work for others at such wages as he may choose to accept. one of them, in supporting a decree for an injunction against combined action by a labor union to deprive non-union men of a chance to work, by force or intimidation, notwithstanding a statute abrogating the common law rule making such acts a criminal conspiracy, has put it thus: the right to the free use of his hands is the workman's property, as much as the rich man's right to the undisturbed income from his factory, houses, and lands. by his work he earns present subsistence for himself and family. his savings may result in accumulations which will make him as rich in houses and lands as his employer. this right of acquiring property is an inherent, indefeasible right of the workman. to exercise it, he must have the unrestricted privilege of working for such employer as he chooses, at such wages as he chooses to accept. this is one of the rights guaranteed to him by our declaration of rights. it is a right of which the legislature cannot deprive him, one which the law of no trades union can take from him, and one which it is the bounden duty of the courts to protect. the one most concerned in jealously maintaining this freedom is the workman himself.[footnote: erdman _v._ mitchell, 207 pennsylvania state reports, 79; 56 atlantic reporter, 331.] but, as already suggested in the preceding chapter, the judges whose opinions have vitalized and enlarged our written law by reading into it some new meaning or application have but echoed the voice of the bar. the greatest achievements of marshall in this direction were really but a statement of his approbation of positions laid down before him by daniel webster. in the early stages of the dartmouth college case, when it was before the state courts in new hampshire, it was webster and his associates, jeremiah mason and jeremiah smith, both lawyers of the highest rank, who first put forward the doctrine that the charter of a private corporation was a contract; and when the cause came before the supreme court of the united states it fell to the lot of webster to bring it to the attention of the great chief justice.[footnote: "works of daniel webster," v, 497.] so in the florida case it was he, in supporting the cause of the prevailing party, who suggested that the territory of florida, though owned by the united states, was no part of them. "by the law of england," he went on to say, "when possession is taken of territories, the king, _jure corona_, has the power of legislation until parliament shall interfere. congress have the _jus corona_ in this case, and florida was to be governed by congress as she thought proper."[footnote: american insurance co. _v._ canter, 1 peters' reports, 611, 538.] this argument did not spend its force in its effect on marshall. when, after the lapse of two generations, greater problems of the relations of the united states to territory newly acquired from spain arose, it was, as has been said above, made one of the cornerstones of the opinion of the same court which determined what they were.[footnote: downes _v._ bidwell, 182 united states reports, 244, 265.] so in the hurtado case, which has been described at length, no description of due process of law was found better and none is better than that given by webster so many years before in the dartmouth college case. the supreme court of new hampshire, from whose judgment that cause came up by writ of error, had held--and on that point its decision was final--that the change in the college charter was no violation of the bill of rights embodied in the constitution of that state. this, following _magna charta_, provided (part i, art. 15) that no subject should be "despoiled or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty or estate, but by the judgment of his peers or the law of the land." _magna charta_ was wrung from a tyrant king. so, said the state court, this article was inserted to protect the citizens against the abuse of the executive power. when it speaks of the law of the land it means the law of new hampshire, and that is whatever the legislature of new hampshire chooses to enact, so long as it contravenes no other constitutional provision. webster, in paving the way toward his claim that the charter was a contract, and, as a vested right of property, inviolable by a state, alluded to the sacredness of all rights under the guaranties to be found in our american system of constitutional government. it was not surprising that the constitution of the united states should protect them in the way he asserted. all the states, and new hampshire among them, had done the same in placing the great features of _magna charta_ in their bills of rights. what, he asked, was this law of the land by which all things were to be tried and judged? this was his answer: "by the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. the meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. everything which may pass under the form of an enactment is not therefore to be considered the law of the land. if this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees and forfeitures in all possible forms, would be the law of the land."[footnote: "works of daniel webster," v, 486.] in the opinion by mr. justice mathews in hurtado _v._ california he observes: "it is not every act, legislative in form, that is law. law is something more than mere will exerted as an act of power. it must be not a special rule for a particular person or a particular case, but, in the language of mr. webster, in his familiar definition, 'the general law, a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial,' so 'that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society.'" [footnote: hurtado _v._ california, 110 united states reports, 516, 535.] other instances might be mentioned, equally conspicuous, which will entitle webster to the name given him by his contemporaries of "the expounder of the constitution."[footnote: see article by everett p. wheeler on constitutional law of the united states as moulded by daniel webster, in yale law journal, vol. xiii, p. 366, and in the 27th annual report of the new york state bar association.] no one american lawyer has done as much in that direction, but there are few of the greater ones who have not done something. as, however, the glory of a battle won is for the commander of the victorious forces, so the glory of adding a new meaning to a constitution at a vital point is, with the public, always for the judge whose opinion is the first to announce it. who announced it to him they never know or soon forget. the acknowledged possession by the judiciary of the power to interpret written law, and thus to delimit its effect, has led to a serious abuse in our methods of legislation. statutes are often favorably reported and enacted, both in congress and the state legislatures, which are admitted to be either of doubtful constitutionality or to contain expressions of doubtful meaning, on the plea that those are questions for the courts to settle. this has been aptly termed the method of the "_referendum_ to the courts in legislation."[footnote: thomas thacher, address before the state bar association of new jersey, 1903.] it is unfair to them, so far as any question of the constitution is concerned, since as soon as the measure is enacted a presumption arises that it is not unconstitutional. the courts will not hold otherwise without strong grounds. it comes to them with the benefit of a full legislative endorsement. it is unfair to the people, both as to questions of constitutionality and of interpretation. a statute can be so drawn as to need no interpretation, or none the outcome of which can be a matter of doubt to any competent lawyer. a legislature abandons its function when it enacts what it does not understand. the sherman anti-trust act is an instance of legislation of this character. it forbids contracts "in restraint of trade or commerce" between the states. when the bill was reported it was objected in the house of representatives that these terms were vague and uncertain. the chairman of the committee himself stated that just what contracts will be in restraint of such commerce would not and could not be known until the courts had construed and interpreted the phrase. the real intent of those who inserted it was that it should not embrace contracts which were reasonable and not contrary to public policy. a similar term in the english railway and canals traffic act had received that interpretation in the english courts, and they supposed that our courts would follow those precedents.[footnote: george f. hoar, "autobiography," ii, 364.] the supreme court of the united states did construe it as embracing all contracts in restraint of inter-state trade, whether reasonable or unreasonable, fair or unfair.[footnote: united states _v._ joint traffic association, 171 united states reports, 505, 570.] one of the justices who concurred in that opinion, in a subsequent case arising under the same statute intimated that on reconsideration he thought the view that had been thus adopted was wrong.[footnote: northern securities co. _v._ united states, 193 united states reports, 197, 361.] the addition by those who drafted the bill of three or four words to make their intended meaning clear would have avoided a result unexpected by them and probably undesired, and relieved the court from deciding questions of doubtful construction involving important political considerations and immense pecuniary interests. * * * * * chapter vii the judicial power of declaring what has the form of law not to be law government is a device for applying the power of all to secure the rights of each. any government is good in which they are thus effectually secured. that government is best in which they are so secured with the least show of force. it is not too much to say that this result has been worked out in practice most effectually by the american judiciary through its mode of enforcing written constitutions. how far it has gone in developing their meaning and building upon the foundations which they furnish has been made the subject of discussion in the preceding chapter. it remains to consider its office of adjudging statutes which come in conflict with their meaning, as thus determined, to be void. the idea of a supreme authority exercising the function of setting aside acts of legislative bodies which it deemed inconsistent with a higher law was familiar to americans from an early period of our colonial history.[footnote: see chap. i; dicey, "law of the constitution," 152; "two centuries growth of american law," 12, 19.] the charter of each colony served the office of a constitution. the lords of trade and plantations exercised the power of enforcing its observance. they did in effect what, as the colonies passed into independent states with written constitutions, naturally became the function of their own courts of last resort. the constitution, like the charter, was the supreme law of the land. whatever statutes the legislature of a state might pass, it passed as the constitutional representative of the people of that state. it was not made their plenary representative. every constitution contained some provisions restricting the legislative power. if any particular legislative action transgressed these restrictions, it necessarily went beyond the authority of the body from which it emanated. the judicial committee of the privy council, which now exercises the functions formerly belonging to the lords of trade and plantations, and is in fact the same body, deals in a similar way today with questions of a constitutional character. if one of the provinces included in the dominion of canada should in its local legislation infringe upon a field belonging to the dominion parliament, this committee can "humbly advise the king" that the act in question is for that reason void.[footnote: in july, 1903, for instance, an act of the province of ontario, entitled the "lord's day profanation act," was thus declared _ultra vires_.] the revolution found the new-made states of the union without this safeguard against a statute repugnant to a higher law. they had enjoyed as colonies the advantage which burke declared was an ideal in government. "the supreme authority," he said, "ought to make its judicature, as it were, something exterior to the state." the supreme judicature for america had been in england. there was now no king in council with power to set a statute aside forthwith by an executive order. but the other function of the king in council, that of acting as a court of appeal from colonial judgments, had been simply transferred to new hands. the state into which the colony had been converted now exercised it for itself and through her judiciary. the judgment of a court is the legal conclusion from certain facts. unless it is a legal conclusion from the facts on which it purports to rest it is erroneous, and, if there is any higher court of appeal, can be reversed. if such a judgment depends upon a statute which justifies or forbids the act or omission which constituted the cause of action, it is legal or illegal according as this statute is or is not law. it cannot be law if its provisions contravene rules laid down by the constitution of the state to restrict the legislative power. the court which tries the cause must meet this question whenever it arises like any other and decide it. a court of law must be governed by law. what has the form of law is not law, in a country governed by a written constitution, unless it is consistent with all which that instrument provides. the first decision of an american court bottomed on these principles was probably rendered as early as 1780, and in new jersey.[footnote: holmes _v._ walton, iv _american historical review_, 456.] one of her greatest statesmen, who after taking a distinguished part in framing the federal constitution became a justice of the supreme court of the united states, vigorously enforced the same doctrine on the circuit fifteen years later in trying a cause turning on the unconstitutionally of a confirming act passed by the legislature of pennsylvania. "i take it," justice patterson said in charging the jury, "to be a clear position that if a legislative act oppugns a constitutional principle the former must give way and be rejected on the score of repugnance. i hold it to be a position equally clear and sound that in such case it will be the duty of the court to adhere to the constitution, and to declare the act null and void."[footnote: vanhorne's lessee _v._ dorrance, 2 dallas' reports, 304, 309, 316.] the accession of the republicans to power in 1801, only to find the courts of the country controlled by judges appointed from the ranks of the federalists, was the occasion of new attacks upon the doctrine thus laid down. it was vigorously denied by senator breckenridge of kentucky, afterward attorney-general of the united states, in the debates preceding the repeal of the judiciary act of 1801.[footnote: elliot's debates, iv, 444.] a year later (in 1803) the question came for the first time before the supreme court of the united states, and the same positions advanced by patterson were taken in what is known as the leading case upon this subject by chief justice marshall.[footnote: marbury _v._ madison, i cranch's reports, 137. see willoughby, "the american constitutional system," 39.] it was unfortunate that the action was one involving a matter of practical politics, in which the plaintiff sought the benefit of a commission the issue of which had been directed by president adams at the close of his term, but which was withheld by the secretary of state under president jefferson. party feeling ran high at this time. the views of breckenridge were shared by many, and the supremacy of the judicial department, which this prerogative, if it possessed it, seemed to imply, was distasteful to a large part of the people. an eminent judge of a state court, chief justice gibson of pennsylvania, as late as 1825, in a dissenting opinion, combated at length the reasoning of marshall as weak and inconclusive. if, he said, the judiciary had the power claimed, it would be a political power. our judicial system was patterned after that of england. our judges had, as such, no power not given by the common law. it was conceded that english judges could not hold an act of parliament void because it departed from the british constitution. no more could american judges hold an act of a state legislature void because it departed from the state constitution, unless that constitution in plain terms gave them such a power. the constitution of the united states did give it, political though it was, to all judges (art. xi, sec. 2), and a state statute which was contrary to that constitution might therefore properly be declared void by the courts.[footnote: eakin _v._ raub, 12 sergeant and rawle's reports, 330.] later in his judicial career gibson abandoned this position, [footnote: norris _v._ clymer, 2 pennsylvania state reports, 281.] and the ground taken by marshall has been since 1845 universally accepted. the last official attack upon it was made in 1831, at the time when the feeling against protective tariffs was strong in the south, and south carolina was known to be meditating opposition to their enforcement. the judiciary committee of the house of representatives reported a bill to repeal the section of the judiciary act which gave the supreme court of the united states the right to reverse judgments of state courts that it might deem contrary to the constitution of the united states. the report said that such a grant was unwarranted by the constitution and "a much greater outrage upon the fundamental principles of theoretical and practical liberty as established here than the odious writ of _quo warranto_ as it was used in england by a tyrannical king to destroy the right of corporations." the house, however, rejected the bill by a very large majority. a proper regard for the coordination of the departments of government forbids courts to declare that a statute is inconsistent with the constitution unless the inconsistency is plain. it has been judicially asserted that it must be plain beyond a reasonable doubt, thus applying a rule of evidence which governs the disposition of a criminal cause. as judgments declaring a statute inconsistent are often rendered by a divided court, this position seems practically untenable. the majority must concede that there is a reasonable doubt whether the statute may not be consistent with the constitution, since some of their associates either must have such a doubt, or go further and hold that there is no inconsistency between the two documents. this right of a court to set itself up against a legislature, and of a court of one sovereign to set itself up against the legislature of another sovereign, is something which no other country in the world would tolerate. it rests on solid reason, but as the due de noailles has said, "un semblable raisonnement ne ferait pas fortune aupres des rã©publicans d'europe, fort chatouilleux sur le chapitre de la puissance lã©gislative. c'est que la notion de l'ã�tat diffã¨re d'une faã§on essentielle sur les deux rives de l'atlantique."[footnote: cent ans de rã©publique aux ã�tats-unis, ii, 145.] our people have been satisfied with the interposition of the courts to defend their constitutions from executive or legislative attack, because these constitutions stand for something in which they thoroughly believe. president hadley has well said that "a written constitution serves much the same purpose in public law which a fence serves in the definition and protection of private rights to real estate. a fence does not make a boundary; it marks one. if it is set where a boundary line has previously existed by tradition and agreement, it forms an exceedingly convenient means of defending it against encroachments. if it is set near the boundary and allowed to stay there unchallenged, it may in time become itself the accepted boundary. but if the attempt is made to establish a factitious boundary by the mere act of setting up a fence the effort fails."[footnote: freedom and responsibility, 30.] americans took principles and institutions with which they had become familiar in colonial days and made their constitutions out of them. their attachment to what the constitution provides goes behind the constitution to the rock of ancient custom and precedent on which it rests, the common heritage of all the states. there is an obvious reason for the unwillingness of the judiciary to exercise the power under consideration unless in case of necessity. the legislature presumably does only what the public sentiment of the day justifies or demands. one branch of it, at least, is the direct representative of the people. to defeat the operation of a statute is therefore always presumably an unpopular thing to do, and if in any case there is known to be truth behind the presumption, it requires, as the federalist [footnote: no. lxxviii.] put it, "an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the constitution." it is seldom that an inferior court declares a statute void. the mere fact that it was enacted by the legislature imports the opinion of that body that it was within its powers; and such an opinion of a department of government is entitled to great respect. if a different, opinion is to prevail, it should ordinarily be first pronounced by the highest authority that can speak for the judicial department. so far, however, as the question of power or jurisdiction is concerned, a justice of the peace, in trying a five-dollar case, has the same authority to disregard a statute, whether it be one enacted by the state legislature or by congress, if he deems it unconstitutional, which belongs to the full bench of the supreme court of the united states. if he is wrong, the only remedy is by appeal. the number of statutes which have been judicially pronounced in whole or part invalid in the united states is very large. among the acts of congress which have fallen in this manner and have been made the subject of elaborate opinions may be mentioned the provision in the original judiciary act giving the supreme court of the united states greater original jurisdiction than the constitution provided;[footnote: marbury _v._ madison, i cranch's reports, 137.] the act of 1865, excluding from practice in the united states courts attorneys who could not take the "iron-clad oath" that they had not supported the south in the civil war;[footnote: _ex parte_ garland, 4 wallace's reports, 333.] the legal tender act of 1866;[footnote: hepburn _v._ griswold, 8 wallace's reports, 603, overruled in the legal tender cases, 12 wallace's reports, 457.] the act of 1870, to protect the colored voter;[footnote: united states _v._ reese, 92 u. s. reports, 214.] the civil rights act of 1875;[footnote: united states _v._ stanley, 109 u. s. reports, 3.] the trade mark act of 1876,[footnote: the trade mark cases, 100 u. s. reports, 82.] and the income tax act of 1894.[footnote: pollock _v._ farmers' loan and trust co., 157 u. s. reports, 429.] fifteen others of less importance have fallen by the same sword. the supreme court of the united states has also set aside in the same manner, as inconsistent with the constitution of the united states, over two hundred statutes passed by states. of the twenty-one acts of congress thus declared unconstitutional, the decisions as to all but two were rendered after 1830; of the state statutes all but twenty-six.[footnote: condensed reports supreme court (peters' ed.), 325. note a; see also 131 u. s. reports, ccxxxv.] the fourteenth amendment has added largely to the list of the latter since its adoption in 1868. state statutes set aside by the state courts since 1780 as in violation of their respective state constitutions number thousands. in the year from october 1, 1902, to october 1, 1903, the legislatures of forty-four states and fully organized territories of the united states were in session and nearly 14,400 new statutes were enacted. during the same year fifty state statutes were declared in whole or part unconstitutional by courts of last resort. three of these decisions were rendered by the supreme court of the united states. five statutes of missouri and as many of indiana were thus set aside; three each of california, kansas and ohio; two each of florida, illinois, mississippi, montana, nebraska, new york, oregon and wisconsin, and one each of those of kentucky, maine, michigan, minnesota, new jersey, georgia, south carolina, south dakota, tennessee, texas, vermont, washington and west virginia.[footnote: bulletin no. 86, new york state library, "comparative summary and index of legislation, 1903," 273, 281.] on the average probably as many as one statute out of every three hundred that are enacted from year to year are thus judicially annulled. the declaration by a court that a statute is unconstitutional and void is only a step in a cause. in the judgment it may not be found necessary or proper even to allude to it. but the order of the court which the judgment contains must be executed precisely as if no such statute had ever been enacted. it may, in effect, be directed against the state whose statute is pronounced void if the plaintiff complains of action taken under it which has deprived him of property and put it in the hands of public officers, or seeks a remedy to prevent a threatened wrong. the state of ohio in 1819 passed a statute reciting that a branch of the united states bank was transacting business there contrary to the law of the state, and imposing a tax upon it, in case it continued to do so, of $50,000 a year, to be collected by the auditor and paid over to the treasurer. the auditor subsequently sent a man to the bank who forcibly seized and carried off $98,000 in specie. this was given to the state treasurer, who kept it in the treasury in a trunk by itself. the bank sued all three for the money in the circuit court, setting forth all these proceedings at length. judgment went against them and, with a slight modification, was affirmed by the supreme court of the united states. it was held by marshall in giving the opinion that the statute was void; that the money had never become mingled with the funds of the state; and that they were liable for it precisely as if they were private individuals who had wrongfully seized it.[footnote: osborn _v._ bank of the united states, 9 wheaton's reports, 738.] these proceedings awakened great feeling in ohio, and became the subject of much criticism throughout the country by those adhering to the democratic party. the legislature of ohio adopted resolutions denouncing them as unauthorized by the constitution of the united states, and directed the governor to forward a copy to the legislature of every other state with a request for its opinion on the subject. the replies varied in tone according to the political predilections of the party then in control of the state addressed. still closer does a court come to collision with the political sovereignty of the state when it commands a public officer to do something in violation of a statute which it pronounces void, or not to do something which such a statute requires. a striking instance of this is furnished by the power to nullify legislative gerrymanders. the constitutions of almost every state provide that it shall be districted from time to time by the legislature for the purpose of electing certain officers or local representatives, and that this shall be so done as to make the districts as nearly equal in population as conveniently may be, and composed of contiguous territory. if a legislature undertakes to construct districts by any other rule, the courts can compel those charged with the conduct of elections to disregard it and to hold them according to the districts previously established under the former law.[footnote: state _v._ cunningham, 83 wis., 90; 53 northwestern reporter, 35; 17 lawyers' reports annotated, 145; 35 american state reports, 29; board of supervisors _v._ blacker, 92 michigan reports, 638; 52 northwestern reporter, 951; 16 lawyers' reports annotated, 432 brooks _v._ state 152 indiana reports; 70 northeastern reporter, 980.] but however necessary may be the conclusion from the premises, it can hardly be agreeable to the authors of a law which it serves to destroy. in effect, though not in theory, it subordinates one department of government to another. the practical result is to give the judiciary a superior power to the legislature in determining what laws the latter can enact. it is not a right of veto, but in a case which calls for its exercise it is an equal right exercised in a different way. in the first instance of a resort to it[footnote: see p. 100.] the section of the new jersey constitution of 1776 confirming the right of trial by jury was held by the full bench of the supreme court to render a statute void which authorized a trial without appeal before a jury of six, on a proceeding for the forfeiture of goods brought in from british territory or the british military lines. this was an unwelcome decision to many who were interested in such seizures, and they sent in several petitions to the legislature for redress. no action criticising the judges, however, was taken by that body. four years later the mayor's court of new york, in the case of rutgers _v._ waddington, held that an act of the legislature of that state, if given the effect which it was plainly intended to secure, would be contrary to the constitution of the state, and therefore allowed it so limited an operation as virtually to annul it. the legislature retorted by resolutions of censure.[footnote: hunt, "life of edward livingston," 49-51.] what was probably the second instance of the actual use of the power in question arose in 1786, out of a statute of rhode island passed to support the credit of her paper money of that year's issue. any one declining to receive it in payment for goods sold at par was to be liable to a _qui tum_ action, to be tried without a jury. counsel for a man sued in such a proceeding put in a plea that the act was unconstitutional and so void.[footnote: trevett _v._ weeden. see coxe, "judicial power and unconstitutional legislation," 234, 237.] the court, which was composed of five judges, threw out the action on this ground, treating the charter from charles ii and the long usage under it as having established trial by jury as a fundamental and indefeasible right. the general assembly shortly afterward summoned the judges before it to account for this judgment. they appeared and stated their reasons for their conclusion, protesting also against the adoption of any resolution for their removal from office (which had been suggested) until after a formal trial. they were not impeached, but at the ensuing session, their terms of office having expired, the assembly chose others in their place. not far from the same time the supreme judicial court of massachusetts pronounced a statute unconstitutional, but there the legislature displayed no feeling, and at the next session unanimously repealed it.[footnote: this, no doubt, was one of the instances of the exercise of this power referred to by elbridge gerry in the federal convention of 1787. elliot's debates, v, 151. it is described in proceedings massachusetts historical society, xvii, 507.] in 1808, judge calvin pease of the ohio circuit court was impeached for holding a law of ohio unconstitutional. he avowed the act, and insisted that as it was a judicial one the soundness or unsoundness of his conclusions could not be inquired into as a ground of impeachment. the result was an acquittal.[footnote: foster, "commentaries on the constitution of the united states," i, 691.] georgia was the only one of the original states which set up no supreme court at the beginning of its statehood. her constitution established (art. iii, sec. 1) a superior court, and left it to the general assembly to give it, if they thought best, appellate jurisdiction. the judges were subsequently by statute authorized to sit _in banc_ and hear appeals. in 1815, while so sitting, they declared a certain statute of the state unconstitutional and void. the legislature showed its resentment by a set of resolutions, of which the parts material in this connection read thus: whereas, john mcpherson berrien, robert walker, young gresham and stephen w. harris, judges of the superior court, did, on the 13th day of january, 1815, assemble themselves together in the city of augusta, pretending to be in legal convention, and assuming to themselves ... the power to determine on the constitutionality of laws passed by the general assembly, and did declare certain acts of the legislature to be unconstitutional and void; and ... the extraordinary power of determining upon the constitutionality of acts of the state legislature, if yielded by the general assembly whilst it is not given by the constitution or laws of the state, would be an abandonment of the dearest rights and liberties of the people, which we, their representatives, are bound to guard and protect inviolate; be it therefore resolved, that the members of this general assembly view, with deep concern and regret, the aforesaid conduct of the said judges ... and they can not refrain from an expression of their entire disapprobation of the power assumed by them of determining upon the constitutionality of laws regularly passed by the general assembly, as prescribed by the constitution of this state; we do, therefore, solemnly declare and protest against the aforesaid assumption of powers, as exercised by the said judges, and we do, with heartfelt sensibility, deprecate the serious and distressing consequences which followed such decision; yet we forbear to look with severity on the past, in consequence of judicial precedents, calculated in some measure to extenuate the conduct of the judges, and hope that for the future this explicit expression of public opinion will be obeyed. in 1821 a case was argued before the supreme court of the united states involving the validity of a kentucky statute passed to protect occupants of land who had made valuable improvements upon it in good faith, in case it should be subsequently proved to belong to some one else. the occupant had employed no lawyer, and it was surmised that the court would decide against him. the governor of kentucky called the attention of the legislature to this, and advised the employment of counsel to defend the law. the legislature responded by resolving "that they consider an adjudication, that the laws in question are void, incompatible with the constitutional powers of this state, and highly injurious to the best interests of the people; and therefore do, in the name of the commonwealth of kentucky, and the good people thereof, solemnly remonstrate and protest against any such adjudication," but that two commissioners should be appointed "to attend the supreme court of the united states at the next term and oppose any decision that may be attempted to be procured from the supreme court, that those laws are void in such manner as they may deem most respectful to the court and most consistent with the dignity of this state."[footnote: niles' register, xxi, 190, 404, 405.] the case had already been heard _ex parte_, and the court soon proceeded to give judgment that the statute in question was void. the kentucky commissioners employed counsel, who moved for a reargument, and obtained one, but with the same result.[footnote: green _v._ biddle, 8 wheaton's reports, 1.] the legislature at its next session discussed the opinion in the case and resolved "that they do most solemnly protest against the doctrines promulgated in that decision as ruinous in their practical effects to the good people of this commonwealth and subversive of their dearest and most valuable political rights."[footnote: niles' register, xxv, 275.] they then took up two decisions of their own court of appeals, declaring other statutes of the state unconstitutional and void, and resolved "that in the opinion of this legislature the decision of the court of appeals of kentucky in the cases of blair against williams[footnote: 4 littell's kentucky reports, 34.] and lapsley against brashears[footnote: _ibid_., 47.] are erroneous, and the laws declared therein to be unconstitutional are, in the opinion of this present general assembly, constitutional and valid acts."[footnote: niles' register, xxv, 275.] the next step was to endeavor to remove the judges, but the two-thirds vote required by the constitution to support an address to the governor for that purpose could not be secured. at the next session, in 1824, the judges were summoned to show cause why they should not be removed. they defended their conclusions so well that the two-thirds vote of each house required by the constitution could not be obtained. by a majority vote the court was then abolished, a new one set up by the same name, and four new judges appointed. the old court refused to recognize the validity of their proceedings. the new one assumed to organize and to do business. at the next election the question which court ought to be recognized was the dominant one. the result was that the friends of the old court gained control of the house and those of the new court that of the senate, one of them being also chosen as the governor. the new court now got possession of most of the papers of the old court. the latter ordered their sergeant to bring them back. the governor made preparations to use military force to resist the execution of this order. at last, in 1826, an act was passed (session laws, p. 13) over the governor's veto, declaring the acts abolishing the old court unconstitutional and void. the governor thereupon appointed a warm champion of the new court chief justice of the old one to fill a vacancy which had occurred on that bench, and for the first time for two years the judicial establishment of the state was on a proper footing.[footnote: niles' register, xxxi, 324; mcmaster "history of the people of the united states," v, 162-166; "the old and the new court, in the green bag," xvi, 520.] meanwhile both courts had been sitting and disposing of cases. new appeals from the inferior courts had been entered in the one which the appellant's counsel thought most likely to stand as the rightful authority. the judges of the inferior courts were in despair when the mandates of the court of appeals came down, and they were called upon to determine whether to obey them. some held that the new court was a _de facto court_, and to be respected accordingly. the ultimate decision fell to the old court, which, after the repealing act of 1826, held that there could be no such thing as a _de facto_ court of appeals so long as civil government was maintained and the _de jure_ court was in the exercise of its functions.[footnote: hildreth's heirs _v._ m'intire's devisee, 1, j. j. marshall's kentucky reports, 206.] the same spirit of jealousy still occasionally manifests itself in a less outspoken but more effective fashion. if a question of political importance is likely to come before a court, it may be within the power of the legislature to prevent it by a change in its statutory jurisdiction. in this way the supreme court of the united states was kept from passing on the validity of the reconstruction acts enacted by congress at the close of the civil war, in a case which was actually pending. under these acts a mississippi newspaper editor was arrested in 1867 by military order on account of an article which he had published reflecting on the policy of the government, and held for trial before a military commission. he appealed to the circuit court of the united states for the district of mississippi for discharge on a writ of _habeas corpus_. judgment went against him, and he appealed to the supreme court of the united states. the court, on august 1, held that it had jurisdiction to review the decision and to decide whether he could be tried before such a commission.[footnote: _ex parte_ mccardle, 6 wallace's reports, 318, 327.] the cause was then heard on its merits and all the questions involved discussed at length, four days being devoted to it. congress apprehended a decision that the reconstruction acts were unconstitutional, and before one was arrived at, during the same month, passed an act repealing the right of appeal in such cases from the circuit court. the purpose of this was obvious, but it was none the less effective, and the court, without deciding the case, dismissed it for want of jurisdiction.[footnote: _ex parte_ mccardle, 7 wallace's reports, 506.] a legislature whose work has been set aside by the courts as unconstitutional sometimes asks, in effect, for a reconsideration of the question by passing another law substantially of the same nature, although expressed in somewhat different terms. this is oftenest done when the decision was made by a divided court or is contrary to the weight of judicial opinion in other states. early in the history of california, for instance, a statute was passed making it a misdemeanor to keep open any store, shop or factory, or to sell goods, on sunday. the supreme court of the state held this to be contrary to the provisions in her constitution that all men had the inalienable right of acquiring property, and that the free exercise of religious profession should be allowed without discrimination or preference. most of the other states had similar statutes, and their courts had supported their validity. judge stephen j. field, then on the california bench, dissented in a vigorous opinion.[footnote: _ex parte_ newman, 9 california reports, 502.] three years later the legislature, unconvinced by the reasoning of the majority of his associates, passed a new sunday law, which did not differ materially from the other, and after a few months the court overruled their former decision, on the very ground taken by judge field.[footnote: _ex parte_ andrews, 18 california reports, 679.] any dissent from a judgment setting aside a statute greatly weakens its force. it has also much less claim to public confidence if all the judges on the bench did not participate in it. in 1825, the court of appeals of kentucky declined to follow a decision of the supreme court of the united states, which held certain statutes of kentucky to be contrary to the constitution of the united states.[footnote: green _v._ biddle, 8 wheaton's reports, 1.] the reason stated for this was that the decision was not concurred in by a majority of the court. it had been made by a majority of a quorum, but not by a majority of the whole court.[footnote: bodley _v._ gaither, 3 monroe's kentucky reports, 57.] after this it became the practice of the supreme court under chief justice marshall not to give judgment in any case involving constitutional questions, unless a majority of the court concurred in opinion in regard to these.[footnote: new york _v._ miln, 8 peters' reports, 118, 122.] several american courts have asserted the doctrine that the judiciary can disregard a statute which plainly violates the fundamental principles of natural justice, although it may not contravene any particular constitutional provisions. the english courts now claim no such power, although sir edward coke, in one of his discursive opinions, very little of which was necessary for the determination of the cause, asserted that an act of parliament "against common right and reason" could be adjudged void at common law.[footnote: dr. bonham's case, 8 coke's reports, 114, 118.] so far as there was any previous judicial authority for this position, however, it is believed that it can only be found in decisions made before the reformation, on questions arising from interference by parliament with rights claimed under the church of rome. such questions were of the nature of those arising under a written constitution. the law of the church within its province was then accepted as a supreme law.[footnote: coxe, "judicial power and unconstitutional legislation,"' 147, _et seq_.] the rule laid down by sir edward coke was accepted by the supreme court of south carolina in two early cases,[footnote: ham _v._ m'claws, 1 bay's reports, 98; bowman _v._ middleton, _ibid_., 252.] and has been substantially repeated in some judicial opinions in other states.[footnote: see goshen _v._ stonington, 4 connecticut reports, 209, 225, and regents _v._ williams, 9 gill & johnson's reports, 365, 31 american decisions, 72.] in the supreme court of the united states its authority was emphatically denied by mr. justice iredell, near the close of the eighteenth century,[footnote: calder _v._ bull, 3 dallas' reports, 386, 399.] but in 1874 the full court only one member dissenting, held a state statute void which authorized cities to issue bonds in aid of private manufacturing enterprises, because they could only be discharged by taxation, and to tax for such a purpose would be taking property from all for the good of one. that, said mr. justice miller in delivering the opinion, "is none the less a robbery because it is done under the forms of law and is called taxation. this is not legislation. it is a decree under legislative form."[footnote: loan association _v._ topeka, 20 wallace's reports, 655, 664; approved in parkersburg _v._ brown, 106 u. s. reports, 487, 501.] this view of the law had been forcibly, though tentatively, put shortly after he came to the bench by chief justice marshall in a leading case,[footnote: fletcher _v._ peck, 6 cranch's reports, 87.] but one in which it was not necessary to decide whether the doctrine was sound. "it may well be doubted," he observed, "whether the nature of society and of government does not prescribe some limits to the legislative power; and, if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation? to the legislature all legislative power is granted; but the question whether the act of transferring the property of an individual to the public be in the nature of the legislative power is well worthy of serious reflection." the weight of american authority is in favor of the position taken by iredell.[footnote: cooley's "constitutional limitations," chap, vii; state _v._ travelers' insurance co., 73 connecticut reports, 255, 283; 47 atlantic reporter, 299; 57 lawyers' reports annotated, 481.] time has made it safer to stand upon it, for since he spoke not only have our state constitutions been generally expanded by adding important restrictions on the legislative power, but the fourteenth amendment has added to the constitution of the united states a prohibition of state laws depriving any person of life, liberty, or property without due process of law. "due process of law" is an elastic term. requiring it certainly imports that no one is to be made to suffer in person or property unless he has had an opportunity to claim before an impartial tribunal the protection of his rights by the settled law of the land. the principle of roman law that, as custom can make law, so disuse can destroy it has never been adopted in the united states. no court, therefore, will pronounce a statute not to have the force of law on the ground that it is obsolete.[footnote: chief justice mason of iowa, in 1840, undertook to import the doctrine into american jurisprudence, but without effect. hill _v._ smith, morris' reports, 70; explained and limited in pearson _v._ international distillery, 72 iowa reports, 357.] * * * * * part ii the organization and practical working of american courts * * * * * chapter viii the organization of the courts of the states the state constitutions differ fundamentally from that of the united states in respect to the nature of the judicial establishment. each of the states possesses all judicial powers belonging to any sovereignty, except so far as the people of the united states may have provided otherwise in the constitution of the united states. the state constitutions do not define those powers. they simply commit them to certain courts and officers. their general language is that the judicial power is vested in a supreme court and such other inferior courts as may be created by law. on the other hand, the constitution of the united states defines the judicial powers of the united states exactly and within a somewhat narrow range, investing the courts of the united states with those powers and no others. hence the states require a much more complicated and extensive judicial establishment than do the united states, for not only is the great mass of litigated cases throughout the country to be disposed of by state courts, but they must also pass upon by far the greatest variety of legal questions. in each state there is one appellate court of last resort[footnote: see chap. xix.] and several courts for the trial of original causes. local justices of the peace are commonly given jurisdiction over prosecutions for petty misdemeanors, and civil cases involving small amounts (seldom over $50 or $100), which do not affect title to land. then come county courts (often styled courts of common pleas or district courts), having cognizance of actions involving greater sums, and to which appeals from judgments of justices of the peace can be taken. these generally have both civil and criminal jurisdiction. a higher court, which may be styled a superior court, or circuit court, often exists, with unlimited jurisdiction as respects values in controversy, and also as to crimes, the county courts in such case having a limited jurisdiction in these respects. municipal courts are to be found in all considerable cities and in many of the lesser municipalities, such as towns and boroughs. city courts often have jurisdiction over civil causes to which one residing in the city is a party, or growing out of a transaction occurring within the city, irrespective of the amount of the matter in demand. they frequently have a criminal side, before which convictions may be had for petty misdemeanors, and those charged with higher offenses bound over for trial in some court of general criminal jurisdiction.[footnote: see goodnow, "city government in the united states," chap. ix.] for the settlement of the estates of deceased persons and the appointment and superintendence of guardians and similar agents of the law, and proceedings in insolvency, there are in many states special courts, known as courts of probate, surrogate's courts, or orphans' courts, and courts of insolvency. in others these functions belong to the county courts. the early practice in this country favored having several judges hold all trial courts, whether a jury was or was not to be called in. it was a method wasteful of time and money. in massachusetts it survived for their highest _nisi prius_ court until 1804. in many states it endured much longer for county courts. county courts in some states are courts only in name, except, perhaps, for some very limited purposes. their real functions are administrative. some or all of those who hold them are often styled commissioners, and their principal duties are to manage the general business affairs of the county.[footnote: see constitution of west virginia, amendment of 1880; constitution of oregon, art. vii, sec. 12.] a statute passed by oregon in 1903 indicates that those in that state are not fountains of law, for it requires the district attorneys in each county, or their deputies, to advise the county courts "on all legal questions that may arise." in virginia, county courts for a long period were held by all the justices of the peace in the county, or such of them as might attend. these magistrates nominated their own successors to the governor, who almost never refused to commission the person so recommended. the court also nominated the officers of militia below the rank of general, and managed all the county affairs, besides having an extensive civil and criminal jurisdiction, including the power of acquittal in cases of felony. however clumsy and ill-ordered such a scheme appears, it gave general satisfaction for a long course of years, partly from a usage on the part of the older members of the bar who might be in attendance to volunteer advice as _"amci curiae"_ whenever any doubtful question of law chanced to arise.[footnote: tucker, "life of thomas jefferson," ii, 378; kennedy, "memoirs of william wirt," i, 59.] even in states where county courts have jurisdiction of ordinary lawsuits the judges, or a majority of them, are sometimes without any legal training, though this is now less common than it once was.[footnote: mcmaster, "history of the people of the united states," iii, 154.] the constitutions of the states generally require the existence of a supreme court of last resort, and often specify also by name one or more of inferior jurisdiction. such courts stand on a firmer footing than those created by the legislature under a general power to establish inferior courts. the power to establish implies a power to limit and to destroy. a tribunal created by a constitution, with functions defined in the constitution, is, as to these and as to its independence of existence and action, beyond legislative control. the republicans in congress were within their rights when, in 1802, they repealed the act passed by the federalists the year before to create a system of circuit courts. those of massachusetts were within theirs when, in 1811, they abolished the ancient court of common pleas of that state and created a new "circuit court," with fifteen judges, to take its place. both would have been glad to go farther and reconstitute in some way the court of last resort, which was filled with old federalists. why they did not has been frankly stated by one of them in his account of governor gerry's administration: with the supreme judicial court the party did not interfere. in respect for the authority of the constitution this forbearance was observed; it having been conceded after due deliberation by men having the confidence of the dominant party that neither the court nor the judges were within the power of the legislature. the result was very reluctantly acceded to, for the imposing influence of that court had been felt in the political agitation of the times, and some of the judges, like some ministers of the gospel, had been unwise enough to give to the extension of their political feelings the aid directly derived from their official authority.[footnote: austin, "life of elbridge gerry," ii, 339. see chap. xxii.] the weakest point in this system of judicial organization is the vesting of jurisdiction of small civil causes in justices of the peace. of these there are generally several in each town, having jurisdiction over the whole county. some may be lawyers. none need be, and few are. any one of them can try cases. which of them shall try any particular case is left to be determined by the lawyer who brings it. justices of the peace can be trusted to dispose of petty criminal prosecutions and to conduct preliminary examinations into charges of any offence for the purpose of determining whether there is ground for holding the accused for trial before a jury, although even here mischief often results from their ignorance of law, and the sufferers have little means of redress.[footnote: see mcveigh _v._ ripley, 77 connecticut reports, 136; 58 atlantic reporter, 701.] such prosecutions are brought by a public officer, who will not be apt to select an incompetent magistrate, and has no strong motive for choosing one specially likely to give judgment against the defendant. but in civil cases, for the lawyer who institutes them to pick out his judge at will from a number who are equally competent to assume jurisdiction, and at the same time (as is generally the law) are left wholly without salaries, receiving nothing except fees for cases actually brought before them, is to place the defendant in a much less favorable position than the plaintiff. if the justice decides in favor of the latter, he is obviously more likely to get the subsequent patronage of his lawyer. in most justice suits judgment does go for the plaintiff, and not infrequently it is to be feared that he gets it from that consideration. some justices rarely give any other judgment. many lawyers bring all their cases before one justice, and seldom fail of success. in 1903, a justice of the peace in one of our largest cities resigned his office and made his reasons public. they were that no one could afford to hold it who was not willing to stoop to unworthy practices. lawyers having a large collection practice, who were the best customers at such a shop of justice, threw their business where they could get it done most cheaply. they expected the justice of the peace whom they favored to favor them. one way was by making them a discount on his legal fees. there was a competition among the justices for business on these terms, and the lowest bidder generally got it. blank writs of summons, even, signed by the justice would be sold at so much a dozen, to be filled in to suit the attorneys. a system in which such things are possible is inherently vicious, and only endurable because the defeated party can always appeal and have a new trial before a higher court. that relief, however, is expensive. judgments ought to be just in the first instance, and it is the business of governments to ensure this, so far as they reasonably can. the natural remedy would seem to be to have fewer justices of the peace who are authorized to try cases and to pay them a fixed salary. better men could thus be had and independence of action promoted. that this is not done comes mainly from the feeling that small controversies ought to be settled by a neighborhood court; that any man of good common sense can generally deal with them as well as a lawyer; and that to salary every justice would be an unreasonable burden to impose on the taxpayer. the system is also an ancient one; it works well with honest men; and the people have an inherited attachment for it. in a few states a sharp line of division is drawn between courts of law and courts of equity. this distinction was inherited from england, though it has been for most purposes abolished there by the judicature acts of 1873 and 1875. it originated in the royal prerogative of interposing to do justice between private individuals in cases of an extraordinary character when the regular courts had no power to grant the necessary relief. the king was accustomed to refer requests for such action on his part to his principal secretary and councillor. the next step was to address the request directly to this officer, who was styled the chancellor. if a man were acting toward another in a way that was against good conscience, though without absolutely transgressing any settled rule of law, the chancellor could compel him to desist. if the legal title to land had been conveyed to one for the use of another, and the holder of this title refused to recognize the beneficial interest to serve which he had been invested with it, the chancellor could bring him to account, although the common law would give no remedy. soon, whenever a man seemed to have justice on his side, but not law, it was deemed a case for the chancellor, or a case in chancery. relief was given because it was equitable to give it, and so it was called relief in equity. the jurisdiction expanded. wherever there was a right, but no adequate remedy at law, the court of chancery, or, as it was oftener called, of equity, was recognized as competent to step in and do justice. the chancellor had often been an ecclesiastic. he was apt to be more familiar with canon law and civil law than with the common law. the justice which he administered came from the crown, not from the people. the people spoke through a jury, called in law language "the country." the chancellor spoke for himself. if he called in the aid of a jury, it was to advise him, not, as in a common law court, to make a final decision as to the question submitted to it. the result came to be that for several hundred years, embracing the whole colonial period, england had two distinct sets of courts, acting under different rules, and each trying a different kind of cases. those involving questions of trust, account, fraud, mistake or accident, were the principal subjects of equitable jurisdiction. equity also could prevent wrongs, while law could only punish them.[footnote: see chap. xx.] it was not, however, always easy to mark the line between cases, and say which belonged in the common law tribunals and which in those of chancery. many an action failed, not because there was no just cause of action, but because it had been brought in the wrong court. in the american colonies, and for many years in the states which succeeded them, these distinctions of procedure were generally observed.[footnote: in pennsylvania the courts largely disregarded them and asserted that equity was a part of its common law. see myers _v._ south bethlehem, 149 pennsylvania state reports, 85, 24 atlantic reporter, 280.] in some there were, in some there still are, separate courts of equity held by a chancellor, aided, if necessary, by vice-chancellors. in others two dockets or lists of cases were (and in a number of them still are) kept in the same court, and the same judge disposed of those on one docket as a court of equity and of those on the other as a court of law. such a system is intrinsically absurd. it has been maintained by whatever states yet tolerate it for two reasons: because the lawyers and the community are used to it, and because it furnishes a convenient test of any claim of right to a jury trial. all our state constitutions have some provision for maintaining such rights, but they do not define the cases in which the right exists. that is left to the courts, and their rule is that it cannot be claimed in cases that call for equitable as distinguished from legal relief. in most of our states and territories legal and equitable causes of action or defenses may now be joined, and legal and equitable relief given in one suit. this reform in procedure was largely due to the labors of david dudley field, and became general throughout the country during the last half of the nineteenth century. the result has been that separate courts of equity are now to be found only in a few states. congress has made use of the state courts in certain cases as part of the machinery of the federal government. while by the constitution "the judicial power of the united states" can only be vested in the courts of the united states, the phrase as thus used refers only to the power of judging causes in courts of record. state courts and magistrates can therefore be given jurisdiction by congress over any acts in aid of the functions of the united states, the supervision of which may be regarded as ministerial, or as incidental to judicial power rather than a part of it. they have received it in this way with respect to such matters as seizure of deserters from a merchantman, the arrest and commitment or bail of offenders against the criminal laws of the united states, the taking of affidavits and depositions for use in proceedings before federal authorities, and the naturalization of aliens.[footnote: robertson _v._ baldwin, 165 u. s. reports, 275.] state courts also have jurisdiction over any civil action to enforce a right given by the laws of the united states, unless congress has otherwise provided. they constitute together with the federal courts one general judicial system for the whole country.[footnote: cluflin _v._ houseman, 93 u. s. reports, 130, 137; calvin v. huntley, 178 mass. reports, 29; 59 northeastern reporter, 435.] almost all american courts are known as "courts of record." a court of record, in modern parlance, is one which tries causes between parties and is required to keep a full official and permanent record of its disposition of them. for this purpose most courts are furnished with a recording officer, called the clerk. his record is the only evidence of their judgments and cannot be contradicted or impeached in any collateral proceeding. if there is any error in it, it can only be shown on a direct proceeding brought to correct it. justices of the peace, when authorized to try causes, act only in small matters and in a summary way. in most states they are not, when exercising this function, deemed to constitute a court of record. nor is any court, even though furnished with a clerk, if its proceedings are not recorded in full, but simply made the subject of brief notes or minutes,[footnote: hutkoff _v._ demorest, 104 n. y. reports, 655; 10 northeastern reporter, 535.] unless there is a statute or local practice giving such notes or minutes the effect of a record. a court of record has inherent power to preserve order in proceedings before it[footnote: see chap. xx.] and, unless other provision be made by law, to appoint a crier or other officer to attend upon its sessions. by statute it is commonly made the duty of the sheriff of the county to attend all courts of record, either personally or by deputy. he also executes such processes as under the practice of the court may be directed to him. witnesses and jurors are thus summoned by him to appear before the court; arrests and attachments of property are made; and executions are levied to enforce final judgments. * * * * * chapter ix the organization of the courts of the united states the constitution of the united states (art. iii) provides that there must always be one supreme court of the united states. the establishment of such inferior courts as may be deemed proper from time to time is left to congress. the judicial power of the united states is limited to cases of certain kinds or between certain kinds of parties. either (1) the subject-matter of the action must be of a kind that concerns the whole nation, or (2) some party to it must be or claim under a political sovereign, or (3) it must be between a citizen of a state of the union and one of another of the states or of a foreign country. in a few of the second class the supreme court is given original jurisdiction: in all others of both classes it has appellate jurisdiction, with such exceptions as congress may think fit to make, save only that no fact tried by a jury can be thus re-examined, except so far as the rules of the common law would have permitted. its original jurisdiction is confined to cases affecting ambassadors, ministers, and consuls and those to which a state shall be a party. it is not necessarily exclusive as respects any of them,[footnote: ames _v._ kansas, 111 u. s. reports, 449, 469.] and by the eleventh amendment to the constitution is so limited as not to include suits against a state by citizens of any other state or foreign government. in point of fact, few original suits have ever been brought before the court, and almost all of these have been instituted by or against states. the supreme court is held at washington. there is a chief justice with eight associate justices, and each is also assigned for circuit duty as a judge of the circuit court of the united states in one of nine judicial circuits into which the country is divided. originally there were but six judges, and each was required to hold two circuits a year in each district in his circuit. they were assigned to the circuits in pairs, and both sat together with the district judge. the consequence was that three-fourths of their time was spent in traveling from one court town to another. they complained of this to congress through the president in 1792, and the next year it was provided that circuit courts might be held by one justice, alone or with the district judge. in 1801, an ultimate reduction of the number to five was provided for. they were to devote their time entirely to the supreme court, while the circuit courts were to be held by a new set of eighteen circuit judges. in 1802, they had only ten cases pending before them, and the average for some years had not exceeded that number. for this and other reasons mentioned elsewhere the act of 1801 was repealed by the next congress. in 1807, another justice of the supreme court was added and two more in 1837. each circuit has a judicial establishment of its own, and is composed of a certain number of judicial districts. of these there are in the whole united states about eighty. the smaller states constitute one district. in the larger ones there are several. each district generally has its own judge, called the district judge, and always its own court, called the district court of that district. each circuit has several circuit judges, whose main work is to sit in a court held in each circuit, styled the circuit court of appeals. they can also hold a district court. until 1911, the district courts had a narrow jurisdiction, and there were circuit courts having a wider one. in 1911, the circuit court was abolished, and the district court now is the general trial court of the united states in the first instance. anyone can sue there to enforce a right arising under the laws of the united states when the amount in dispute is more than $3,000. rights arising under certain of these laws can only be enforced there, and as to them the pecuniary limitation does not apply. such are patent-rights and copyrights. any suit involving an amount exceeding $3,000 may be brought there when the controversy is between citizens of different states or citizens of a state and citizens of a foreign country. so may a suit by citizens of the same state claiming land under grants from different states, without respect to the value of the subject of controversy. suits of any of these kinds which are brought in a state court may, at the option of the defendant, be transferred for trial into the district court. on filing proper papers the case is transferred automatically. the district court has jurisdiction also over bankruptcy and admiralty matters, a few other kinds of civil cases of minor importance, and of all offenses against the united states.[footnote: the judicial code of the united states, chapter ii.] the pecuniary limit of jurisdiction was for a hundred years fixed at $500. the increase to $3,000 was due partly to the fact that the supreme court was overburdened by appeals from the trial courts, many of which involved small amounts, and more to a desire to keep judicial power over ordinary controversies between man and man, as far as practicable, in the hands of the state courts. early in the nineteenth century a practice began of bringing suits in the circuit court of the united states, which purported to be between citizens of different states, but in which the plaintiff had either changed his residence for the purpose of giving the court jurisdiction or was really suing for the benefit of a citizen of the same state with the defendant. this was due to the high opinion entertained of the federal judiciary[footnote: niles' register, xxix, 14.] and the desire to bring the cause before a federal, rather than a state tribunal. such a mode of proceeding, while within the letter of the governing statute, was contrary to its spirit, and little better than a fraud. it was also an evident perversion of the intent of the constitution, and became at last so far-spreading that both congress and the courts used their best endeavors to put an end to it, and with success.[footnote: u. s. statutes at large, xviii, 470; hawes _v._ oakland, 104 u. s., 450, 459.] another cause is also effective in lessening the docket of the district courts. the ordinary lawyer prefers to sue in a state court, when he has the choice, on account of his greater familiarity with the practice there. many american lawyers have never brought an action in a federal court. most cases which could be so brought can also be and are brought in a state court. congress has thus far maintained for the federal courts the ancient distinction between procedure in law and in equity explained in the preceding chapter. there are those who claim that the reference in art. iii, sec. 2, of the constitution of the united states to "cases in law and equity" requires its preservation; but this seems a strained construction of the phrase. separate dockets are kept in the district court of legal and of equitable actions. they are brought in different form, tried in a different way, and disposed of by different rules, though by the same judges and at the same term of court. as to equity cases, the rules of the old english chancery practice are substantially followed. in cases of a common law nature, the practice existing at the time in regard to those of a similar kind in the courts of the state within which the federal court may be held is to be followed, as nearly as may be.[footnote: u. s. revised statutes, ⧠914.] in fact, there is a departure from it in many points in most states,[footnote: see nudd _v._ burrows, 91 u. s. reports, 426.] and in vital ones in those which have reformed their procedure in civil actions by fusing remedies at law with those in equity. if an action framed in this method be removed from a state court to a federal court, the plaintiff must thereupon split it in two, and present his case at law on one set of papers and his case in equity on another. the supreme court, under power derived from acts of congress, has framed rules of procedure for the inferior trial courts of the united states in equity and admiralty cases, and the latter courts have supplemented them by further rules of their own making. the equity rules promulgated by the supreme court were revised in 1912, and took effect as changed in 1913.[footnote: they are printed in volume 226 of the united states reports.] they greatly simplify the former procedure. suits are now tried generally on oral testimony taken stenographically in open court. formerly the evidence was usually given before officials known as examiners or masters in chancery. the former reported the testimony at length to the trial court. the latter reported their conclusions from it. the new rules have abolished demurrers in equity causes in favor of what is substantially the present english practice.[footnote: see _infra,_ page 203.] in common law causes in the district court, the state remedies by way of attaching the property of a defendant to respond to a judgment, or seizing it on execution, or imposing a lien upon it by a judgment, are adopted and enforced.[footnote: u. s. rev. stat., â§â§ 915, 916, 967, 988.] the field of national legislation being narrow, the offenses against the nation are correspondingly few. any acts done on lands ceded by a state, which would have been crimes under its law in 1873, may be punished as such in the federal courts in the same manner which that law provided.[footnote: _ibid_., ⧠5391.] in the circuit courts, before 1866 it was customary to defer the trial of important causes until the justice of the supreme court assigned to the circuit could be present. if he differed on any material point from the district judge, this point could be certified up to the full supreme court for argument and decision there. during this period the published reports of the decisions of the circuit court contain many opinions of the highest value. several of the best which story and bushrod washington wrote are to be found among them. the act of 1866, by which a resident circuit judge was appointed for each circuit, provided notwithstanding that each member of the supreme court should attend at least one term of the circuit court in each district as often as once in two years. the press of business at washington, however, soon became such as to make it practically impossible for the supreme court justices to do any substantial circuit work. when some case of national importance was to be heard in any district, the justice in whose circuit it was included would make a special effort to go down. in this way chief justice chase heard and sustained the plea with which jefferson davis met the indictment against him for treason. but ordinarily the circuit judge took the place of the supreme court justice, and the latter, if he appeared at all during the term, remained hardly for a day. the supreme court, therefore, during over a hundred years remained the only court of the united states existing mainly for appellate purposes. the work which it had before it at the last term during which it occupied this position (october term, 1890) will show how much it was then overburdened. its docket contained 1,177 appeals brought forward by continuance because they could not be disposed of at the preceding term, 623 new cases of the same kind, and 16 cases of original jurisdiction, making a total of 1,816 actions. of these, although the term lasted nearly eight months, it was only able to dispose of 617, thus leaving 1,199 for continuance to the following term.[footnote: 140 u. s. reports, appendix.] it will be observed that the court was no longer able to cope with its new business, not to mention that left over from previous years. appeals now lie in most civil cases from the final judgments of the district and circuit courts, and from convictions for infamous crimes, not capital, to the circuit court of appeals. they also extend to judgments granting a temporary injunction. there is a court of this name for each of the nine circuits, which was established in 1891 for the further relief of the supreme court and the speedier termination of litigation. this measure originated in the american bar association, by which it was pressed upon the attention of congress. it had become an absolute necessity to devise some plan of expediting the disposition of appeals from the trial courts of the united states. there was more than enough of such business by the close of the civil war (the events attending which brought up for decision many novel questions of the highest importance) to require the entire attention of the supreme court. it soon took three years after an appeal was docketed before it could be reached for argument. this was intolerable, and it was obviously necessary either to restrict the liberty of appeal; to constitute divisions of the court, one to hear appeals of a certain class and another those of another class; or to set up an intermediate court. the last method was preferred. the practice in the circuit court of appeals is governed by rules of its own making, but in general conforms to that of the supreme court of the united states in appealed cases. the commission appointed some years since to prepare a revision of the laws of the united states have reported in favor of abolishing all jurisdiction of the circuit court over original cases and turning it into an appellate court.[footnote: senate doc. 68, 57th congress, 1st session.] should this recommendation be adopted, the district court would acquire the jurisdiction now vested in the circuit court, the district judges would sit in the district court only, and the circuit court judges in the circuit court only, while the circuit court of appeals would come to an end. the american bar association voted in 1903 that it was desirable to establish a new appellate court to sit at washington and take cognizance of patent and copyright cases. such a measure would tend to relieve the supreme court of the united states of any undue pressure of business, and promote both uniformity and promptitude of decision in a class of actions in which promptitude and uniformity are of special importance. as things stand now, a patent may be pronounced invalid in one circuit and upheld in another by courts of equal authority; and while in such event the supreme court would probably, on a special application, call both these judgments up before it for review, this remedy cannot be claimed as a matter of absolute right, and is at best a slow one. the circuit court of appeals is held by three judges, two constituting a quorum. those generally sitting are the circuit judges belonging to the circuit. the justice of the supreme court assigned to the circuit may also sit, and any of the district judges in the circuit can be called in. except in a very limited class of cases, the decision of this court is final, unless the supreme court, on special application, should think the questions involved to be of sufficient importance to require a review, when it can order the record sent up to washington for that purpose. the circuit court of appeals can also of its own motion certify up any questions in a cause to the supreme court for its instructions before making a final disposition of it. the supreme court has direct appellate jurisdiction over the district and circuit courts in cases turning on the limits of their jurisdiction, in prize causes, in equity suits by the united states under the statutes regulating inter-state commerce, and in all cases involving the construction or application of the constitution of the united states, or of a treaty. appeals also lie to it from judgments of conviction in the circuit court for capital offenses.[footnote: 29 u. s. statutes at large, 492; 32 _ib_. 823.] the consequence of the circuit courts, which had been impaired by the practical withdrawal of the justices of the supreme court, was further lessened by the creation of the circuit court of appeals. before that their judgments in most cases were final. in criminal causes there was no appeal, and in ordinary civil causes none after 1875, unless the matter in controversy exceeded $5,000 in value. this left the life, liberty and property of the citizen top much in the hands of one man; and the people, led by the bar, insisted on stripping him of powers so liable to abuse.[footnote: see an attack on a similar state of things existing in louisiana at one time in the district court, by edward livingston in 1826. hunt, "life of edward livingston," 302, 303.] no sovereign can be sued in his own courts without his consent. the united states consent to be sued on most claims against them of a contractual nature, which they may dispute. for this purpose a court of claims has been established at washington, consisting of a chief justice and four associates. originally it was little more than an administrative bureau; but by successive amendments of the law it has come to have fully a judicial character,[footnote: united states _v._ klein, 13 wallace's reports, 128, 144; 24 u. s. statutes at large, 505.] except in one particular. it is a general principle that a court will make no decree that it cannot enforce. the court of claims cannot issue an execution to enforce its judgments. money can be drawn from the treasury of the united states only to meet appropriations made by congress. an appropriation is made by each congress of a gross sum to satisfy any judgments that have been or may be rendered by the court of claims; but should this provision be omitted in any appropriation bill the judgments of the court of claims could not be collected. concurrent jurisdiction in these respects is given to the district court of claims not exceeding $1,000 in amount, and to the circuit court of those exceeding $1,000 and not exceeding $10,000. aliens can sue in the court of claims when their own country accords a similar privilege in its courts to citizens of the united states.[footnote: u. s. revised statutes, ⧠1068.] this court has also a peculiar kind of advisory jurisdiction. congress, or any committee of either house, can refer to it any questions of fact which may have come before them. the judges must then ascertain the facts and report them back. the head of any of the great executive departments may, in like manner, in dealing with any claim against the government, if the claimant consents, refer any uncontroverted questions, either of fact or law, to the court, which must then report back to him its findings and opinion. this does not take the form of a judgment, for there is no case and no parties are before it. it is a mere expression of opinion, and stands on much the footing of the report of a committee of inquiry to a superior authority.[footnote: 22 u. s. statutes at large, 485; 24 _id._, 507.] a temporary court is also in existence called the court of private land claims. this is composed of a chief justice and four associate justices, and has jurisdiction to hear and determine claims of title to land as against the united states, founded on spanish or mexican grants in new mexico, arizona, utah, nevada, colorado or wyoming. an appeal from the final judgment is given to the supreme court of the united states.[footnote: 26 u. s. statutes at large, 854.] the district of columbia has a special judicial establishment. there is a court of general jurisdiction known as the supreme court of the district of, columbia, and appeals from its judgments lie to the court of appeals of the district of columbia. this is composed of a chief justice and two associate justices, and its judgments are reviewable by the supreme court of the united states, if $5,000 is involved, or the validity of an authority exercised under the united states or a treaty or act of congress is in question. an appeal also lies to it from decisions of the commissioner of patents as to claims of a right to a patent.[footnote: 27 u. s. statutes at large, 434.] when new territory comes by conquest or cession permanently under the jurisdiction of the united states, it belongs to the president, in the exercise of his executive power, to see to its proper government until congress makes other provision. he can institute courts there for that purpose, or if he finds courts created by the former sovereign in existence, can expressly or impliedly permit them to continue in the exercise of judicial functions. each fully organized territory has a set of local courts and one supreme court to which appeals can be taken and the judgments of which, in cases of large pecuniary magnitude or great legal importance, can be reviewed by the supreme court of the united states. these territorial courts do not exercise what is known in the strict sense and designated in the constitution as "the judicial power of the united states." they are created to meet temporary conditions, and with judges whose commissions run only for a few years. such courts are instruments through which congress exercises its power of regulating the territory of the united states. they act judicially. they have judicial power. but the source of this power is not the clause in the constitution under which the judicial power of the united states is defined.[footnote: american insurance co. _v._ canter, 1 peters' reports, 511.] it is therefore not necessary to confine such courts strictly to the consideration of judicial business. in the organization of our earliest territories the judges were given legislative functions, and while this was originally due to the terms of the ordinance of 1787, it was confirmed by various acts of congress after the adoption of the constitution of the united states. the philippines are governed under an act of congress by a commission acting under the supervision of the secretary of war. the organization of courts established by spain has been in substance preserved. the spanish law which was in force there was expressed in codes mainly founded on those framed for france under napoleon i. in 1901, the spanish code of civil procedure was supplanted by one prepared by a member of the philippine commission, and which is now familiarly known by his name as the ide code. in substance, it establishes the mode of proceeding in civil cases which is known in the united states as code pleading. trial by jury has not been introduced into the philippines either in civil or criminal causes, and need not be.[footnote: dorr _v._ united states, 195 u. s. reports, 138.] in criminal causes, the spanish system was originally retained, allowing either party, the united states or the defendant, to appeal from the judgment of the court of first instance to the supreme court of the islands and have there a new hearing both as to fact and law. this, however, so far as concerns an appeal by the government, was held to be contrary to the act of congress under which it was constituted.[footnote: kepner _v._ united states, 195 u. s. reports, 100.] the courts of the united states are generally provided with an officer styled a marshal. he executes their process, attends their sessions, and exercises in general the functions which belong to a sheriff as respects state courts. each district court appoints a convenient number of district court commissioners, who issue warrants of arrest on criminal proceedings, take bail, inquire whether there is probable cause to hold the accused to answer to the charge in court, and discharge in such respects substantially the functions generally belonging to justices of the peace in the states. * * * * * chapter x relations of the state judiciary to the united states and of the united states judiciary to the states every judicial officer of a state is required by the constitution of the united states to bind himself by oath or affirmation to support it, and this obligation compels him to respect every act of congress made in pursuance of the constitution, and every treaty made under the authority of the united states, as, in case of conflict, superior to anything in his state constitution or laws. the courts of the national government are complementary to those of the states. both belong to one judicial system. rights arising under the laws of the united states may be enforced by a state court as well as by a federal court, and rights arising under a state law by a federal as well as by the state court, unless in cases where there is some special restriction upon its jurisdiction. such a restriction may be imposed by either government, as respects any right which it creates. the judicial power of the united states extends only to certain classes of cases. as to some of these it is necessarily exclusive: as to any of the rest congress can make it such.[footnote: the moses taylor, 4 wallace's reports, 411, 429.] on the other hand congress may assume to invest a state court with power to dispose of a certain matter of federal right, and the state may decline to permit the exercise of such a power. the united states cannot in that manner compel the courts of another government to do their bidding. it would tend to throw on the states a greater burden than they might deem necessary or proper. they provide courts to meet the wants of those looking to their own sovereignties for justice. thus, although nothing could seem more anomalous than for one sovereignty to confer citizenship in another, the laws of the united states allow naturalization to be obtained by proceedings in state courts. most aliens who become citizens of the united states do so in that way, because the state courts are more easy of access. but a state can at any time restrict or forbid the use of its courts for such a purpose.[footnote: stephens, petitioner, 4 gray's (mass.) reports, 559; state _v._ judges, 58 n. j. law reports, 97; 32 atlantic reporter, 743.] the federal courts can lend their aid to carry into effect a right arising wholly from the statute of a state, even if it affect maritime interests and must be enforced, if at all, through an admiralty court. admiralty suits, it is true, can only be brought in the courts of the united states, but that is the very reason why, if such a suit gives the only remedy, jurisdiction of it should be entertained in the only sovereignty competent to give relief.[footnote: the lottawanna, 21 wallace's reports, 558, 580.] there are many civil cases which can be brought, at the option of the plaintiff, either in a court of the united states or in a state court. some of these, if brought in a state court, the defendant can, at his option, allow to remain there or remove for trial into the circuit court of the united states. criminal prosecutions by a state may also be removed, under certain conditions, to the circuit court of the united states, when the defense is one arising under the laws of the united states. in any cause tried in a state court, if the decision turns on a claim of right, set up under the constitution, laws or treaties of the united states, and is against its validity, the losing party, if unable to secure its reversal by appeal to a higher court of the state, can ask such relief from the supreme court of the united states. it will be observed that it is the losing party only who has this remedy. if the state court decides, however erroneously, that the claim of a federal right is well grounded, this is conclusive as respects the controversy in that suit. if all state courts in which the validity of an unconstitutional act of congress was contested should uphold it, the courts of the united states would be powerless to right the wrong, unless they were called upon to enforce the statute in some suit brought before them for original trial. the obvious object of the limitation is to preserve so far as is possible the sovereignty of the states. the courts of the nation are to set aside acts or judgments flowing from that only in case of necessity and to preserve rights flowing from the sovereignty of the nation. for the same reasons, resort can be had to the supreme court of the united states only after every right of review given by the laws of the state has been exhausted. usually this requires one who loses his cause in a trial court to take it up to the state court of last resort. where, however, this is not permitted by the state law, he may ask for a writ of error from the supreme court of the united states to whatever court was the highest to which he was able to remove it; and if, by the state law, he was unable to appeal at all, then the writ will go to the trial court. one of the greatest of chief justice marshall's great opinions was rendered on a writ of error to the quarterly session court for the borough of norfolk in virginia, held by the mayor, recorder, and aldermen of the borough.[footnote: cohens _v._ virginia, 6 wheaton's reports, 264.] it was the opinion of hamilton that an appeal might be given from the state courts to the inferior federal courts, in case of a decision turning on a right claimed under the constitution or laws of the united states.[footnote: _federalist_, no. lxxxii.] this is probably true, but congress has wisely forborne to make any such provision. it imposes a strain sufficiently great on the sovereignty of a state to subject the judgments of its court of last resort to reversal by the supreme court of the nation. the power to declare a statute void because inconsistent with constitutional provisions belongs to every court in every case in which such a statute is relied on either to support the action or in defense.[footnote: see chap. vii.] it therefore belongs, as respects a state statute which may be attacked as inconsistent with the constitution of the united states, to the trial courts of the united states as well as to the supreme court. this makes it possible for a district or circuit court of the united states to adjudge the statute of a state in which it sits to be unconstitutional and void, although it may have been declared valid by a judgment of the highest court of the state, from which no appeal to the supreme court of the united states was ever taken. however derogatory to the sovereignty of the states the possession of such authority may seem and be, it is evidently a necessary feature of our dual system of government. in some way it was indispensable to provide for maintaining the full powers of the united states against encroachments by state legislation, and also for enforcing all the special limitations on the powers of state legislation which the constitution of the united states lays down. this could have been done effectually in but two ways: either by giving to congress or to the president a veto upon state laws; or by leaving the right of control to lie dormant until a necessity for exercising it should arise, and then putting it in the hands of the judiciary. the latter method was clearly open to the least objection.[footnote: see hamilton's discussion on this point in the _federalist_, no. lxxx.] jefferson maintained that there was a third, and one which the constitution expressly provided. this was the calling of a convention of all the states for proposing amendments to it. if, he said, a state on the one hand by her highest authorities asserts a certain line of action to be within her powers, and the united states by their highest authorities deny it, "the ultimate arbiter is the people of the union, assembled by their deputies in convention, at the call of congress, or of two-thirds of the states. let them decide to which they mean to give an authority claimed by two of their organs."[footnote: letter to mr. justice johnson, tucker, "life of thomas jefferson," ii, 455.] there seems a plain fallacy in this proposition. the question to be decided, in case of a conflict of judicial authority, is not which doctrine ought to be adopted, but which was adopted when the constitution was framed. to amend that instrument and make it something else could not justly be allowed to alter the effect of acts previously done. but one serious proposition has ever been made to call a national constitutional convention for any such purpose. that was by kentucky in january, 1861, when civil war was threatened; and it was not pressed. the very delays which would be inevitable in assembling such a body were then a reason for the call, for they would give time for the "sober second thought." the plan, however, seemed and probably was impracticable. the movement toward secession had gone too far.[footnote: debates and proceedings of the national peace convention, 45, 61, 67.] there were many, at the time when the constitution of the united states was before the people for ratification, who feared that the jurisdiction of their courts would be extended by judicial construction beyond the limits of the grant. new york in her vote of ratification incorporated a declaration that she understood it to be impossible that the jurisdiction of any court of the united states could ever be enlarged "by any fiction." in the maryland convention, this sentiment took shape in a proposed amendment to the constitution adopted by a committee appointed for the purpose, but never reported, "that the federal courts shall not be entitled to jurisdiction by fictions or collusion."[footnote: elliot's debates, 550; proceedings massachusetts historical society, xvii, 504-7.] had such an amendment been proposed and adopted, it would have cut off a large share of the most important cases now brought before the circuit courts. in 1787, there were only twenty-seven business corporations in the united states.[footnote: report of the american historical association for 1902, 267; _american historical review_, viii, 449.] it was not long before they became countless and the large affairs of the country were in their hands. could they sue and be sued in the courts of the united states? the decision on this point was that, by force of a pure legal fiction, invented for the purpose, they might be. they were, indeed, not citizens of any state;[footnote: paul _v._ virginia, 8 wallace reports, 168.] but the persons who composed them probably were. therefore, it must be assumed that they certainly were, and also that they were all citizens of the same state and that the state from which incorporation was obtained.[footnote: louisville, cincinnati and charleston r. r. co. _v._ letson, 2 howard's reports, 497, 555; ohio and mississippi r. r. co. _v._ wheeler, i black's reports, 286.] sir henry maine maintained that legal fictions were the rude device of early stages in government, and to add to them disturbed the symmetry of a legal system and was unworthy the approval of modern courts.[footnote: ancient law, 26.] but while they are among the things that it is hard to justify on principle, it is harder to dispense with them in actual practice, as the instance given conspicuously illustrates. although the united states are the only depositary of the power of ordering foreign relations, foreign governments are often aggrieved by acts of the courts of a state which the united states have but imperfect means of preventing or rectifying. in 1841, we were brought to the verge of war with great britain by an incident of this nature. an insurrection broke out in canada in 1837, and a new york steamboat was chartered to bring supplies across the niagara river to those engaged in it. one night when she was moored on the new york side of the river a party of loyal canadians seized and burned her. during the accompanying affray an american was killed. a canadian named mcleod, who was charged with having fired the fatal shot, was afterwards arrested in new york and indicted for murder. the british government then informed ours that it had ordered the burning of the steamer, and thereupon demanded mcleod's release. our secretary of state replied that the prosecution was in the hands of the state of new york, and the united states had no control over it. lord palmerston made the affair the subject of a dispatch, in which he stated that mcleod's execution would produce "a war of retaliation and vengeance." the president at once requested the governor of new york to order a discontinuance of the prosecution. this was declined, but with a promise to grant a pardon in case of conviction.[footnote: lothrop, "life of william h. seward," 35.] the state courts refused to discharge the prisoner. he was tried on the original charge, but acquitted. congress in 1842 did what it could to prevent the recurrence of such a conflict of authority by passing an act giving the circuit and district courts of the united states jurisdiction on _habeas corpus_ proceedings in favor of foreigners held by state authority, who might claim a right of release under the principles of international law.[footnote: u. s. revised statutes, ⧠762.] the circuit court has since 1875 been given power to entertain original jurisdiction of any causes arising under the constitution, laws or treaties of the united states, regardless of the citizenship of the parties, if a value of $2,000 is involved. in all cases, also, of imprisonment by state authority, whether under arrest before trial or after a sentence of conviction, in violation of rights claimed under the constitution, laws or treaties of the united states, the prisoner may now be summarily discharged on a writ of _habeas corpus_ by a court or judge of the united states. ordinarily, however, as a matter of comity, he will be left to seek his remedy in the state courts, and if without success there, on a writ of error from the supreme court of the united states.[footnote: _in re_ neagle, 135 u. s. reports, 1; _ex parte_ royall, 117 u. s. reports, 241.] the state courts have no power to release on _habeas corpus_ one who is held under the authority of the united states. if that authority has been illegally exerted, his remedy is in the federal courts alone.[footnote: ableman _v._ booth, 21 howard's reports, 506.] the cases in which a state can be sued in an original suit in the supreme court of the united states are defined in the constitution and, as limited by the eleventh amendment to it, are quite few. several such actions have been brought. in the earlier ones, the state declined to recognize the jurisdiction of the court and did not enter an appearance. the court thereupon decided to proceed _ex parte_ on hearing the plaintiff;[footnote: see new jersey _v._ new york, 5 peters' reports, 283; u. b. phillips, "georgia and state rights;" report of american historical association for 1901, ii, 83.] and in the later cases the states have appeared and made defense. the court, in one of these suits, was asked to issue an injunction in favor of the cherokee indians against the state of georgia to prevent her and her governor, judges and other officers whatsoever from enforcing certain of her statutes which were alleged to be unconstitutional. the case went off on another point, but the majority of the court intimated it to be their opinion that no such injunction could properly issue against a sovereign state. marshall thought it savored "too much of the exercise of political power to be within the proper province of the judicial department." mr. justice johnson said that it was an attempt to compel the president of the united states, and by indirection, to do what he had declined to do on the plaintiff's application to him; namely, "to declare war against a state or to use the public force to repel the force and resist the laws of a state."[footnote: cherokee nation _v._ georgia, 5 peters' reports, 1, 19, 29.] it would be no easy thing to enforce a judgment against a state should it resist. hence the supreme court has been justly reluctant ever to make any order which would take money out of a state treasury, unless in cases where the treasurer was individually sued, and the money in dispute was not mingled with other public funds. in 1794, four years before the adoption of the eleventh amendment, a judgment against the state of georgia, authorizing an assessment of general money damages against her, had been entered in the supreme court in favor of one chisholm, to whom she owed a debt. georgia had refused to enter an appearance in the suit, and in anticipation of this result her house of representatives had resolved, in 1793, that if any federal marshal should attempt to levy an execution on such a judgment against the state, it should be a felony, and on conviction he should be hanged. the senate had not concurred in this measure, but it reflected pretty closely the general state of public feeling in a state largely indebted for what her people thought it belonged to the united states to pay. the eleventh amendment was proposed by congress during the term of court at which judgment was entered, but not adopted until 1798. meanwhile, the court had thought best to defer further proceedings, and none were ever taken afterwards. the plaintiff therefore won a barren victory.[footnote: u. b. phillips, "georgia and state rights," report of american historical association for 1901, ii, 25.] the appellate jurisdiction of the supreme court of the united states over states is large, for the state is the party in whose name all criminal prosecutions in its courts are brought, and in many of these the defendant sets up some claim under the laws of the united states which is overruled. here again, in case of resistance, it would be difficult to enforce a judgment of reversal. shortly before the action of the cherokee nation for an injunction, the georgia courts had sentenced corn tassel, one of the tribe, to death for murdering another of them. tassel had claimed that by the laws of the united states and their treaty with his nation he could only be prosecuted before one of his tribal courts. he obtained a writ of error from the supreme court to review his case on this ground. it was served, but before it could be heard the day set for his execution had arrived. by the laws of the united states the allowance of the writ of error superseded the sentence until the appeal should be decided. the governor laid the matter before the legislature, saying that he did not propose to regard any orders from the supreme court interfering with those of georgia courts, and should resist any attempt to enforce them with all the forces at his command. the legislature approved his position,[footnote: u. b. phillips, "georgia and state rights," report of american historical association for 1901, ii, 77.] and tassel was hanged on the day originally set.[footnote: "memoirs of william wirt," ii, 291.] there had been no time to resort again to the supreme court for relief, and as soon as he was dead his writ of error fell with him, for such a proceeding is legally terminated if the plaintiff in error dies. two years later, rev. mr. worcester, a missionary who had gone to teach the christian religion to the cherokees, was convicted in the superior court of gwinnet county on an indictment for residing among them without a license from the state, and sent to the state prison. he appealed to the supreme court of the united states, which decided that georgia had no jurisdiction over the cherokee reservation, and could not require such licenses. the judgment against him was therefore reversed, and an order made "that all proceedings on the said indictment do forever surcease; and that the said samuel a. worcester be and hereby is henceforth dismissed therefrom, and that he go thereof quit without day, and that a special mandate do go from this court to the said superior court to carry the judgment into execution."[footnote: worcester _v._ georgia, 6 peters' reports, 515, 596.] the superior court of gwinnet county paid no respect to this mandate; the governor of georgia characterized it as an attempt at usurpation which he should meet in a spirit of determined resistance; and worcester remained in prison until, on expressing his willingness to abandon any further efforts for his discharge by authority of the judgment on his writ of error, the governor gave him a pardon on condition of his leaving the state. a year later, james grady, who lay under a sentence of death under proceedings similar to those in tassel's case, like him obtained a writ of error from the supreme court of the united states and had it served on the georgia court, only to find it disregarded. his execution, in spite of the _"supersedeas"_ which goes by law with every such suit, was the last of this series of judicial outrages.[footnote: "georgia and state rights," 83.] it was unfortunate for the sufferers in these proceedings that they took place at a time when the cry of "state rights" was particularly loud and general in the south. south carolina had been quieted with difficulty by jackson's action in regard to her nullification ordinance, and he did not wish to go farther than he thought it necessary in insisting on the supremacy of the united states. since the civil war, such defiance by a state of the authority of the supreme court of the united states has been unknown and would be almost inconceivable. the absolute right of the supreme court of the united states to pronounce finally, so far as the states are concerned, upon every question brought before it as to the meaning and effect of the national constitution, has come to be universally acknowledged. the courts of a state have the same right, except that it is not final. this the original judiciary act of 1789 (sec. 25) fully recognized. something like it may belong to a convention of the whole people of a state, called to act upon its fundamental concerns; for that would represent the sovereignty of the state as a whole in the fullest manner. it was from such a convention that the nullifying ordinance of 1832 proceeded, but the vice of its action was, not so much that it pronounced the protective tariff acts unconstitutional and void, but that it assumed to deny any right of appeal in litigation growing out of these acts and the ordinance of nullification, from the courts of south carolina to the courts of the united states. this liberty of appeal in the regular course of judicial procedure is the one thing which keeps the united states in existence. the law governing the ordinary transactions of life is that of the state where they may have their seat. this was affirmed in the original judiciary act,[footnote: u. s. revised statutes, ⧠721. as "equity follows the law," state legislation creating new equitable rights or varying those formerly established also affects causes in equity in the federal courts. brine _v._ insurance co., 96 u. s. reports, 627; but see james _v._ gray, 131 federal reporter, 401.] as a general rule for the courts of the united states in trials at common law. by another act of congress,[footnote: _ibid_., ⧠914.] the practice, pleadings, and form and mode of proceeding in civil causes, other than those of equity and admiralty jurisdiction, in the circuit and district courts are to conform as nearly as may be to that followed in the state within which these courts may be held. the state laws which are thus made a rule for the united states courts are the law of the state as it is understood and applied in its own courts. hence the construction of a state statute, or the doctrines of the common law in a particular state, if definitely settled by the courts of that state, must be followed in subsequent litigation in the federal courts. where, however, a state court has taken a certain position as to what the law is, and afterwards changes its position, the federal courts are not compelled to change with it, if this would do injustice to one who has meanwhile acted on the faith of the original ruling.[footnote: burgess _v._ seligman, 107 u. s. reports, 20, and see argument of daniel webster in groves _v._ slaughter, 15 peters' reports, 449, 489.] nor are the federal courts, in large questions of a commercial nature, bound always to accept the opinion of a state court as to what the common law of the state may be. the manner in which this doctrine has been evolved is an interesting example of the manner in which law develops by litigation, and new points are struck out in a single case as the joint product of lawyer and judge.[footnote: see chaps, xvii, xviii.] a bill of exchange drawn in maine on one tyson, a merchant in new york, and bearing his acceptance, was indorsed over to one swift, who took it in good faith before it fell due, in payment of a pre-existing debt. he sued tyson upon it in the circuit court of the united states in maine. if his rights were as good as if he had paid value for it at the time he received it, he was entitled to recover. if not, his action failed; for the acceptance had been obtained by fraud. it was made in new york. the judicial decisions of that state, contrary to the prevailing opinion as to what was the general common law rule, seemed to favor the view that a pre-existing debt did not stand on as good a footing as a present payment, in support of a claim upon negotiable paper. samuel fessenden of portland, a lawyer of great ability, was his counsel. the cause was submitted on briefs, without oral argument. mr. fessenden, admitting that the law of the place where acceptance was made must govern the obligations of tyson, insisted that the new york decisions were wrong in principle and ought not to be regarded. "if," said his brief, "there is any question of law, not local, but widely general in its nature and effects, it is the present question. it is one in which foreigners, the citizens of different states in their contests with each other, nay, every nation of the civilized commercial world, are deeply interested. by all without the united states this court is looked to as the judiciary of the whole nation, known as the united states, whose commerce and transactions are as widely diffused as is the use of bills of exchange.... how can this court preserve its control over the reason and affections of the people of the united states; that control in which its usefulness consists, and which its own untrammeled learning and judgment would enable it naturally to maintain; if its records show that it has decided-as it may be compelled to decide if the construction referred to, advocated on the part of the defendant, is established-the same identical question, arising on a bill of exchange, first one way, and then the other, with vacillating inconsistency?" mr. dana, for tyson, maintained the opposite view with equal ability. "in coming together," he said, "from the respective states, the framers of the constitution, and our representatives in congress after them, must be regarded as having had in view the language, laws, and institutions of the states which they represented." mr. justice story gave the opinion of the court. referring to the provision in the judiciary act (now u. s. revised statutes, sec. 721) above mentioned, on the construction of which the case must turn, "it never," he remarked, "has been supposed by us that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case.... the law respecting negotiable instruments may be truly declared in the language of cicero, adopted by lord mansfield in luke _v._ lyde, 2 burr. b., 883, 887, to be in a great measure, not the law of a single country only, but of the commercial world. _non erit alia lex romã¦, alia athenis, alia nunc, alia posthac, sed et apud omnes gentes, et omni tempore, una eademque lex obtinebit."_[footnote: swift _v._ tyson, 16 peters' reports, 1, 8, 9, 10, 11, 13, 18.] this opinion had been submitted to the court for the first time during the evening before it was delivered.[footnote: _ibid_., 23.] it could not have received any very close scrutiny. it relied on no authority except that of cicero, for lord mansfield, in the case of luke _v._ lyde, was speaking of the law of the sea, which in the nature of things no one nation can prescribe or change. it was not easy to reconcile it with precedents cited by mr. dana, in one of which mr. justice chase of the same court had held on the circuit as early as 1798 that the united states had no common law of their own, and that the "common law, therefore, of one state is not the common law of another; but the common law of england is the law of each state, so far as each state has adopted it; and it results from that position, connected with the judicial act, that the common law will always apply to suits between citizen and citizen, whether they are instituted in a federal, or state, court."[footnote: united states _v._ worrall, 2 dallas' reports, 384, 394.] so the supreme court itself had said, in 1834, in a famous judgment, concurred in by mr. justice story himself, that "it is clear, there can be no common law of the united states. the federal government is composed of twenty-four sovereign and independent states; each of which may have its local usages, customs and common law. there is no principle which pervades the union and has the authority of law that is not embodied in the constitution or laws of the union. the common law could be made a part of our federal system only by legislative adoption. when, therefore, a common law right is asserted, we must look to the state in which the controversy originated."[footnote: wheaton _v._ peters, 8 peters' reports, 658.] the state courts have looked upon the doctrine announced in swift _v._ tyson with an unfriendly eye. in some, its authority is denied.[footnote: see porepaugh _v._ delaware, lackawanna and western r. r. co., 128 pennsylvania state reports, 217; 18 atlantic reporter, 503.] in none will it affect the disposition of a cause turning upon its own law, and not pending in the federal courts. it has, however, been repeatedly reaffirmed by the supreme court of the united states, though the later decisions appear to limit its effect to questions growing out of commercial transactions not wholly confined to a single state.[footnote: western union telegraph co. _v._ call publishing co., 181 united states reports, 92. see article on the common law of the federal courts, by edward c. eliot, _american law review_, xxxvi, 498.] the right of recovery on a cause of action of a commercial nature will therefore often depend on the court which the plaintiff selects. if he sues in a state court, the common law of the state, as the judicial authorities of that state declare it to be, will be applied; if he sues in a court of the united states, the common law of the state as the judicial authorities of the united states declare it to be. each tribunal will profess to decide by the same rule--the law of the state; but the federal court will really apply the common law of england, as it is generally understood to be, instead of the common law of that state as it is locally understood to be. the relations between the federal and state courts which have been described obviously present many occasions for conflicts of authority. that such conflicts are so infrequent is mainly due to a spirit of comity, which the judges of each sovereignty should and generally do show to those of the other. the federal courts are also prohibited by act of congress from issuing any injunction to stay proceedings in a state court, except in certain cases arising under the bankruptcy laws. independent of any statute, however, the general principles of jurisprudence forbid any direct attempt either by a court of the state to control the action of a court of the united states or by a court of the united states to control the action of a state court, except to the limited extent for which provision is made in the national constitution.[footnote: diggs _v._ wolcott, 4 cranch's reports, 179; m'kim _v._ voorhies, 7 cranch's reports, 279.] each court, this exception aside, exercises powers belonging to an independent sovereign, and therefore subject to control by that sovereign only. the equitable jurisdiction of the courts of the united states enables them to interfere in disputes arising out of state elections in certain cases in which the claim is set up that rights held under the constitution or laws of the united states have been violated. actions for such relief are rare, and instances have occurred in which the remedy has been abused for political purposes.[footnote: see the proceedings in the case of kellogg _v._ warmoth in the united states circuit court in louisiana in 1872. mcpherson's "history of reconstruction," 100-108.] the centralizing and nationalizing tendencies which set in early in the nineteenth century and were so greatly strengthened by the course of events during and following soon after the civil war have greatly weakened the position and influence of the state courts. they have thus rendered the state bench less attractive. in 1791, john rutledge, an associate justice of the supreme court of the united states, resigned that office for the chief justiceship of south carolina. during the last half century, several chief justices of states have resigned to become associate justices of the supreme court of the united states. associate justices of supreme courts in the smaller states have also frequently resigned to accept the position of district judge, attracted by the life tenure, larger salary, and retiring pension. * * * * * chapter xi relations between the courts of different states every state has all the rights of an independent sovereign, except so far as its sovereignty is limited by the constitution of the united states. as respects each other the states are for most purposes in the position of foreign governments. the courts of one are regarded by those of any other as foreign courts, except so far as the constitution may have prescribed a different rule. no legal process from a court can have any inherent force outside of the territorial boundaries of the government in which it is issued. the law of that government may attach certain consequences to the fact of its service in a foreign country, but it can do so only with reference to the effect of the proceeding on persons or property subject to its own jurisdiction. courts, as a general rule, can act only when they have jurisdiction over the person, the subject-matter, and the cause. in rare cases, jurisdiction over the subject-matter may be regarded as giving jurisdiction over the person, so far as may be necessary to uphold a judgment settling the possession or title to property. such a proceeding is, either in form or substance, one not _in personam_ but _in rem_. the commonest instance is a suit in admiralty to enforce a maritime lien, such as that given by the universal law of the sea for seamen's wages. wherever the vessel is found, this lien is recognized and will be enforced by seizing and selling her, but only after some kind of public notice has been given to all who have any pecuniary interest in her to appear and be heard. in such a suit, personal notice to her owners, served within the jurisdiction of the government to the courts of which the seamen may resort, is not indispensable. the presence of the ship within the power of the court is enough. while state courts have no admiralty jurisdiction, they can adjudicate upon a claim of title or right of possession to fixed property within the territorial limits of their state, although the parties adversely interested are not and have not been personally served with process there or anywhere. here again their power over the property necessarily implies such power of control over those who might lay claim to it as will suffice to settle any dispute over its ownership or possession. but in all ordinary cases they are not only powerless to subject any one to obedience to their judgments who is not personally within the state in which they exist, but powerless so to subject one who is personally within it, but who did not belong there and was not there served with process in the original proceeding leading up to the judgment, unless he voluntarily took part in the proceeding. in most civilized nations there is a recognized form of proceeding by which a judgment of a foreign court, fairly rendered after giving a proper opportunity to the defendant for a hearing, can be enforced by process from a domestic tribunal. this is styled making the foreign judgment executory. the english common law did not recognize such a right, and gave no remedy to one desiring to enforce a foreign judgment, except that of bringing a fresh suit. in like manner, whoever has recovered a judgment against an inhabitant of any state, in a court held outside of that state, can enforce it against him in his own state only by bringing a new action. this either is, or is in the nature of, the common law action of "debt on judgment"; and only two defenses are available. these are, first, that no such judgment exists or is in force; and, second, that if it exists, it was rendered by a court having no jurisdiction over the subject-matter or the defendant.[footnote: pennoyer _v._ neff, 95 u. s. reports, 714; grover & baker sewing machine co. _v._ radcliffe, 137 u. s. reports, 287.] if there was jurisdiction, it is of no consequence that it was erroneously or unfairly exercised. the remedy for that must be sought in the state where the judgment was pronounced. even fraud on the part of the plaintiff in procuring it, though a defense against a judgment of a foreign country is not one against a judgment of another state.[footnote: christmas _v._ russell, 5 wallace's reports, 290.] these rules are established by art. iv, sec. i of the constitution of the united states and by acts of congress passed to enforce it.[footnote: u. s. revised statutes, sec. 905.] commercial intercourse between the different states is so great and so constant that questions in the courts of one often arise which turn on the law of another. those who do any act do it with implied reference to the law of the place where it is done, so far as respects its legal consequences. if it is a wrongful act there, it will in most instances be deemed a wrongful act everywhere. if it leads to a certain result as regards property rights there, it will ordinarily give a right of action anywhere, to secure the benefit of that result. the law of each state is largely an unwritten common law. even in those where they have full codes defining civil rights, these codes are expressed in terms for the definitions of many of which the common law gives the rule. but this common law is not precisely the same in any two states. in minor points certainly, and perhaps in capital ones, there will be a divergence. in england there is one uniform common law. here, divided as we are for most business purposes into forty-five different sovereignties, it is multiform. if, then, the court of one state in determining the legal effect of a transaction having its seat in another must be governed by the common law of that state, where is it to be found? if there have been decisions of its highest courts in regard to what it is with reference to the point in question, they will ordinarily be accepted as conclusive. this is not by virtue of the provision in the constitution of the united states that full faith and credit is to be given in each state to the public records and proceedings of the others. that refers to the effect of public records and proceedings upon the rights of those who are or claim under parties to them. such decisions as those which have been described are accepted as conclusive as to the rights of those who were not parties to them, and simply because they are considered the best evidence attainable of a rule of unwritten law of general application. but they are not universally so considered. the rule that transactions are governed by the law of the place where they have their seat is one founded on the presumed intent of the parties to them. but in fact the parties to a business transaction act on their general notions of what the law is or must be, rather than on any particular knowledge of what courts have declared that it is. the rule that one country will accept the opinion of the judicial authorities of another as to what its law is, is one not to be pressed so far as to sacrifice essential justice. in this point of view, some courts hold that it is permissible to disregard decisions of other states which are based on a departure from what is generally considered a settled doctrine of the common law as to a commercial question. this is substantially the same position taken by the supreme court of the united states, and elsewhere described,[footnote: see chap. x.] concerning the right of a federal court to refuse to be bound by state decisions as to the unwritten law affecting foreign trade or trade between the states.[footnote: faulkner _v._ hart, 82 n. y. reports, 413, 423.] another rule of practice of great importance is that in the absence of proof to the contrary the courts will presume, in a state basing its jurisprudence on the english common law, that the unwritten law of any other american state is the same as its own. as the reason of this rule fails in the case of louisiana, florida and texas, which were subject to organized governments not derived from great britain at the time when they were incorporated into the united states, it is not applied to them.[footnote: norris _v._ harris, 15 california reports, 253.] decisions of a court constitute a precedent of binding obligation only within the particular territorial jurisdiction which is subject to its process. in the tribunals of one state decisions rendered in another on legal points are, so far as respects transactions not governed by its local law, without any authoritative force. they may be read, just as the opinions of an author expressed in a legal treatise, or as the decisions of an english or german court might be, for what they appear to be worth. no formal proof that they were really the deliverances of the court from which they purport to emanate is necessary to support their use for this purpose. the reported decisions of courts of other states, whether published officially or unofficially, may be cited in argument in any cause, to fortify the claims of counsel as to the proper rules to be followed in reaching a decision. for this use they are introduced simply for the intrinsic value of the reasoning and conclusions. if it is claimed that they prove the law of the state from which they come to be of a certain nature (and that is a material point in the case), they should be made the subject of proof before argument.[footnote: hanley _v._ donoghue, 116 u. s. reports, 1.] in many states this is dispensed with by statutes allowing courts to take judicial notice of all reported decisions in other states; that is, in effect, to take any means which they think proper to learn what they are. it is also the general practice of the bar where no such statutes exist to allow the reports of other states to be read for any purpose without objection. most states have statutes to facilitate the proof in court of the statute laws of other states. the mode prescribed by act of congress (revised statutes, sec. 905) under the constitutional provision, to which reference has been made, involves considerable expense for the proper certification of copies. common provisions of state legislation are that all courts may take judicial notice of the laws of other states (that is, take them into account without any formal proof at all), or that a copy of the official publications containing them shall be competent evidence of what they are. there is a certain spirit of comity to which courts often give expression in rendering assistance to courts of other countries. this judicial comity has been defined as "the deference commonly paid by the courts of one jurisdiction to the laws or proceedings of another, in causes affecting rights claimed under such laws or proceedings."[footnote: "dict. of philosophy and psychology," _comity_.] as between courts of the different states in the united states this sentiment naturally is particularly strong. in pursuance of it, it is usual, if there has been a judicial appointment in one state of a representative of the law to administer an estate of any kind, part of which is in another state, for the courts of the latter to give him such further powers or appointment as may be necessary to put in his possession or control whatever is within their jurisdiction. an administrator of the estate of a deceased person would thus be appointed, almost as a matter of course, administrator of such estate in whatever state property or rights of action belonging to it might be found. a receiver appointed by a court of equity to take possession of property would ordinarily, in like manner, be appointed to the same office wherever any part of such property might be situated; and in some states such an officer has been permitted to sue for it under his original appointment. the general doctrine, however, is that a receiver in chancery (that is, a receiver appointed by a court of equity) is simply an arm of the court which appoints him, and has no authority to act outside of the territorial jurisdiction of that court.[footnote: hale _v._ allinson, 188 u. s. reports, 56.] a receiver of an insolvent corporation often finds that it has shareholders living in several different states, who have not fully paid in their subscriptions to its capital stock. in such case, if the statute of the state under the laws of which it was incorporated provided for the appointment of a receiver for insolvent corporations of that character, he may be regarded in other states as one to whom each shareholder, in legal effect, promised to pay such part of his subscription as had not been previously paid to the corporation itself. on this theory of liability, a foreign receiver has a right of action by virtue of his official position, indeed, but not because of authority from a foreign court to use that position for such a purpose. he sues as one to whom the shareholder promised to make a payment, and on a direct contract between the two, which is implied by law.[footnote: fish _v._ smith, 73 conn. reports, 377; 47 atlantic reporter, 711; 84 american state reports, 161.] the sentiment or rule (for from being a sentiment it has risen to be a rule) of comity between states both aids in the enforcement in one of rights acquired under the other,[footnote: finney _v._ guy, 189 u. s. reports, 335, 346.] and in the prevention by one of acts which would infringe on prohibitions created by the other. thus, if a corporation of one state has been organized to do business in another, it may be enjoined in its home state from amalgamating with a corporation of the other, contrary to the public policy of the other as declared by its courts.[footnote: coler _v._ tacoma railway and power co., 70 new jersey law reports; 54 atlantic reporter, 413.] as no legal process can be effective outside the limits of the sovereignty by authority of which it is issued, no court of a state can summon before it witnesses not found within its jurisdiction, who live in another state. this, in view of the free intercourse and trade between all parts of the united states, would work intolerable hardship had not statutes been passed by every state permitting testimony to be taken outside of its limits by written deposition for use in civil cases. so far as criminal causes are concerned, this mode of relief generally cannot be pursued, owing to the common provision in our state constitutions that the accused must be confronted by the witnesses against him. most of the northeastern states, to meet this difficulty, have passed statutes requiring their citizens when summoned by a local magistrate at the request of a court of another state to appear and testify before it in such a prosecution, to do so upon receiving payment for their time and expenses, on pain of a considerable pecuniary forfeiture.[footnote: new hampshire inaugurated this legislation more than sixty years ago. public stat., ed. 1842, 382. most of the statutes apply only to adjoining or neighboring states, and some require reciprocity on their part.] * * * * * lawyers of one state have no right to practice in any other. by courtesy and on motion of a member of the bar, it is customary for the courts of other states to allow them to participate in the conduct of any particular cause. in some states, lawyers who have removed their residence into them from another may in the same manner be admitted to their bar; in most there is a standing rule on the subject which requires proof of their having practiced in the courts of their original state for a certain number of years, and otherwise provides for an examination into their legal attainments. * * * * * chapter xii trial by jury to have a trial by jury is, as a general rule, the right of every man who sues or is sued in court on a cause of action not of a kind to be disposed of in a court of equity or admiralty. the american colonies did not all adopt this mode of procedure at first, and few of them ever practiced it precisely on the english plan. in the colony of new haven there were no juries. in all the new england colonies, later, there were juries, but verdicts in civil causes had not the conclusive force given them by the common law. the defeated party had what was styled the privilege of a review. this was a new trial before another jury, either in the same court or a higher one. if he lost his case again, it was the end of the litigation. if he gained it on the second trial, the other party could demand a third, and the event of that decided the cause forever.[footnote: bissell _v._ dickerson, 64 conn. reports, 61, 65; 29 atlantic reporter, 226.] in criminal prosecutions a similar right was sometimes conceded to the defendant in case of conviction.[footnote: statutes of connecticut, ed. 1715, p. 131.] south of new england there was no such radical departure from the common law, but there were before the revolution variations of considerable importance.[footnote: the _federalist_, no. lxxxiii.] instead of sending a case before an ordinary jury, the court has power, at the request of the parties, to direct a special jury to be summoned to hear it. this is seldom asked or granted unless the matter in controversy is of peculiar importance and difficulty. such a jury is more carefully selected, with the assistance of the parties, so as to make it sure that it will be composed of men exceptionally competent to decide a cause and such a cause. they are generally paid a larger compensation than ordinary jurors receive, the parties furnishing the additional sum required. prepayment of these sums may be and often is made a condition of granting a trial before such a jury.[footnote: eckrich _v._ st. louis transit co., 176 missouri reports, 621; 75 southwestern reporter, 755; 62 lawyers' reports annotated, 911.] the requirement of unanimity on the part of the jury in civil causes, which we have inherited from england, is indefensible in principle. in practice, it has saved the institution from destruction. no one would feel himself safe if a majority of twelve men, of no special training in the study of legal rights, could strip him of his property. but among that number of persons there can hardly fail to be one or two of superior character and intelligence. these, with the aid of the judge, if he be one who fulfills properly his part of the proceeding, can generally lead the rest to a just conclusion. if the verdict is for the plaintiff, they may have to yield to some compromise as to the amount of damages. not infrequently this has been arrived at by calling for the separate estimates of each juror, adding them together and dividing them by twelve. it is a rough way, and not the fairest, but the wiser heads may consent to it to secure the concurrence of the weaker. in criminal cases, the importance of a verdict to the defendant is so great that unanimity may well be required. while there is a legal presumption that he is innocent until found guilty, this in practice is of little avail to him with the jury. they know from their every-day observation of affairs that there are few prosecutions which reach the final stage of a trial on the merits, under which there ought not to be a conviction. in several states verdicts in civil causes by a three-fourths vote are permitted. this radical change is not likely to become general. its best defense is that temptations to corruption are thus removed. so long as one juror, by refusing to concur with the rest, whether with or without reason, can prevent a verdict, there will be defendants seeking to prevent the recovery of what they know to be a just demand, who will be ready to buy a vote. in 1899, seven of the bailiffs in attendance on the chicago courts were accused of lending themselves to such negotiations, and twenty men who had been jurors confessed that they had either taken or been offered bribes.[footnote: report of the new york state bar association for 1904, 51.] the anglo-american jury is unique because it is nothing unless unanimous, and because it may render a general verdict, stating no reasons for the decision, on which a general judgment, save in exceptional cases, is entered as of course. in the early judicial history of the american colonies juries were less under the control of the judge than they are now.[footnote: see chap. xiv.] in some colonies they received no instructions as to the law, the chance of an unjust decision being guarded against in civil cases, as previously stated, by an absolute right in the losing party to claim a new trial before another jury. the general tendency of judicial practice in later years has been to emphasize the influence of the judge upon verdicts. this often extends to directing a verdict, peremptorily, for one party or the other, when the law is clear upon the facts claimed or admitted. still more often it takes the shape of a caution as to the weight that can properly be given to certain testimony, or an opinion as to what really are the controlling sources of evidence. without the guidance of an intelligent judge, a jury would frequently come to unfortunate and even unjust conclusions. that there should be such guidance is an essential part of the jury system, and it is generally given most effectually where the judges are the ablest and the most independent. the judge has at common law and by practice in most american states a right in his charge to comment on the evidence and intimate his opinion as to the weight which should or should not be given to any particular testimony. it is a right to be cautiously exercised, for juries are greatly influenced in their conclusions by remarks of that character. they feel that he is the head of the court, and there is a certain sentiment of loyalty to him as well as of respect for any one occupying the position in which they find him placed by the authority of the state. sometimes this power is abused. the judge desires to indicate a decided opinion. he fears that if he put it in plain words it might seem so strong as to indicate partiality, and furnish ground of appeal. he therefore uses language, perhaps in reference to the credibility of a witness, which looks fair and even colorless on paper, but by the tone or emphasis in which some vital word is uttered, or with the aid of a shrug or glance, carries to those whom he is addressing an unmistakable conviction that he means it to be taken in a certain sense. any such judicial action, however, is rare, and would be looked upon with disapprobation by the bar.[footnote: see metropolitan life insurance co. _v._ howle, 68 ohio state reports, 614; 68 northeastern reporter, 4.] if the case is one which has been pressed by counsel especially upon the sympathies of the jury, such as a suit arising out of a labor strike, or by a widow to recover for an injury resulting in her husband's death, it is customary for the court to caution them in their charge that justice and not sympathy is their rule of duty.[footnote: bachert _v._ lehigh coal and navigation co., 208 pennsylvania state reports 362; 57 atlantic reporter, 765.] the american colonies were settled at a time when the english criminal code was extremely harsh, and the english judges were disposed to administer it in such a way as to favor the crown. if the government promoted a prosecution, there was little hope for the defendant, except from the jury. the courts held that on criminal proceedings for publishing a libel it was for them to say whether the paper was libellous, and for the jury to decide only as to its publication by the accused. this was the occasion of the charles james fox libel act of 1792, and of many constitutional provisions to the same effect in this country, under which juries, even in libel cases, can render a general verdict of not guilty. it was under the influence of these ideas, and in view of the fact that the colonial judge often knew no more law than the jury, that it became common in this country either to give a jury in a criminal cause no instruction as to the law at all or to charge them that they were judges both of the law and fact.[footnote: 2 swift's "system of the laws of connecticut," 258, 401.] in some of the states, a charge to the effect last stated is now sometimes required by statute. a jury trial is a poor mode of doing justice, if there is a rule of law which, as applied to certain facts, should control the verdict, unless that rule of law be both stated by the judge, and so stated as to impress upon the jury that it is their sworn duty to apply it, if the facts which they may find to exist are such as to come under its operation. that they should be so instructed, even if declared by express statute to be the judges both of the law and the facts, is the prevailing opinion of american courts and jurists.[footnote: commonwealth _v._ anthes, 5 gray's reports, 185; sparf _v._ united states, 156 u. s. reports, 51, 71.] it is of especial importance that the duty of juries to take the law from the court should be clearly stated to them in a country of written constitutions. most crimes are defined by statute. it is easy for the defendant's counsel to claim that the statute on which the prosecution is based is unconstitutional. if it be, the accused is entitled to an acquittal; but if the jury acquit him on that ground, and the ground is false, injustice is done. any such claim must be disposed of by the court, in order to give the constitution its due supremacy.[footnote: state _v._ main, 69 conn. reports, 123, 132; 37 atlantic reporter, 80; 61 american state reports, 30.] mr. justice baldwin of the supreme court of the united states came to the bench, in 1829, strongly inclined to minimize the power of the federal judiciary. in one of his first cases on the circuit, he charged the jury in a capital case that they were judges of both law and fact, and if they were prepared to say that the law was different from what he had stated it to be, were not bound by the opinion of the court.[footnote: united states _v._ wilson, 1 baldwin's reports, 109.] it was not long before he found himself compelled to retreat from his position. a man was being tried before him for forging notes of the united states bank, and his counsel claimed an acquittal because the law incorporating the bank was unconstitutional, reading to prove it the veto message of president jackson, with the accompanying documents. to the jackson democrats on the panel this was quite an imposing argument, and mr. justice baldwin was obliged in his charge to sound the warning that for a jury to exercise the power of treating an act of congress as invalid was virtually to give us a country without a constitution and without laws.[footnote: united states _v._ sheve, 1 baldwin's reports, 510, 513; pennsylvania law journal for november, 1846, p. 9.] in one of the southern states where it is a statutory right to demand instructions that the jury are the judges of the law, it was the custom of a certain trial judge of commanding presence, when called upon to give them, to say to the jury after he had done so, rising to his full height, "but, gentlemen, you must recollect that i have told you what the law that governs this case is, and to this i am the only witness who has appeared or could appear." it was one of the acute observations of alexander hamilton that under our american constitutions judges are less to be relied on by one who is attacked by the government, because those who direct the government are the choice of the people, and whatever they do is presumably popular. the judiciary, he said, was less independent here than in england, and therefore we had the more reason to cling to the trial by jury and their power to render general verdicts as our greatest safety.[footnote: people _v._ croswell, 3 johnson's cases, 337, 353.] the states which guard these most closely are those in which there is the most jealousy of anything like a standing order, and the widest scope of popular election. georgia was the state, among the old thirteen, in which these characteristics were most marked. her first constitution of 1777 expressly threw the power of determining the law into the hands of the jury in every case, though they were allowed to ask the judges holding the court for their opinion, in which case each judge gave his in rotation. the party who lost his case could demand a new trial before a special jury. the ordinary jury were to be sworn to bring in a verdict according to law and the evidence, provided it be not repugnant to the constitution. the special jury were to be sworn to bring one in according to law and the evidence, "provided it be not repugnant to justice, equity, and conscience, and the rules and regulations contained in this constitution, of which they shall judge." apparently the meaning of this was that while the decision of the first jury as to the law could be revised by a second, that of the second, however contrary to the highest law, could not be. * * * * * resort is occasionally had to the assistance of a jury by a court of chancery for the better disposition of some disputed question of fact on which the equities of the parties depend. this cannot (except by force of some express statute) be claimed as a matter of right. the judge sends the issue to a jury for trial only if he thinks it would be helpful to him, but their verdict has no conclusive effect. he can adopt it or ignore it, at his pleasure. * * * * * the selection of jurors is a long process. the general plan is to commit to some local authorities in each city, town, or county the choice of a considerable number out of the inhabitants whom they may think suitable to serve in that capacity; then to have that list revised by some higher officials or persons specially appointed by the courts for the purpose, who must strike out a large part of the names; and finally to have those who are to be summoned to attend any particular term of court for jury duty chosen by drawing from the remaining names by lot. in many states special qualifications as to age, education, and intelligence are required. out of the jurors thus summoned to attend the court, there is a further choice by lot of those to try each particular case, subject to objections made by either party to any thus drawn, for proper cause. the statutes of the united states provide that jurors in the circuit and district courts shall be selected in each state from those qualified to serve in its highest trial courts, and in substantially the same manner. * * * * * the right to a jury trial is in civil actions often waived by both parties, in which case the facts as well as the law are determined by the judge. if not expressly claimed, it is by the rules of practice in some states treated as waived. the number of civil causes tried to the jury, taking the country as a whole, is declining. the decline is generally found to be quite accurately proportioned to the confidence felt by the bar in the ability and independence of the judge,[footnote: see paper by justice henry b. brown, in the american bar association report for 1889, p. 265, on "judicial independence."] or perhaps to that confidence in the case of a former generation. tradition and custom have a large influence on whatever pertains to the practice of law. in several of the states a majority of the civil causes which might be tried to the jury are not: in louisiana very few are.[footnote: see chap. xxiv.] the tendency in england is also toward dispensing with the jury in ordinary civil trials. over a million cases are brought every year in the english county courts, and in not one in a thousand of them is there a jury trial, although if the matter in demand is over â£5 in value either party may claim it.[footnote: maitland, "justice and police," 28, 29, 54. for small cases the jury is one of five, but their verdict must be unanimous.] criminal trials, except in case of trivial offenses, it is generally necessary to hold before a jury, by express provisions of the constitution.[footnote: see cooley, "constitutional limitations," 389.] during the colonial era the defendant was allowed in massachusetts to waive a jury, even in capital cases.[footnote: proceedings of the colonial society of massachusetts, vi, 95.] statutory permission to the same effect has since been given in some states where there is no constitutional provision to the contrary.[footnote: state _v._ worden, 46 connecticut reports, 349.] in civil causes, the right to demand a jury in petty cases has been restricted in a number of states.[footnote: in new hampshire, for instance, a constitutional amendment was passed in 1877 denying it in cases involving less than $100, unless title to land is involved.] at common law the judges were accustomed and allowed to put great pressure upon juries, if necessary, to force them to unite in rendering a verdict. they could be kept together without food or beds all night, and even carted about from one court town to another until they were ready to report an agreement. very little of this practice remains in the united states. in some states they are allowed to separate and go to their homes at night during the trial even of a capital case, and while deliberating over their verdict they are generally supplied with food and other comforts. the right of trial by jury was limited at common law to trials of what are called "issues of fact;" that is, of the truth of a statement of material facts made by one party and denied by the other. if, therefore, in a civil cause a judgment has been ordered for the plaintiff without a verdict, as where the defendant has failed to appear and answer, it is for the court to say for the recovery of what amount of damages the judgment shall be rendered. it may inquire into this by the aid of a jury, but such a jury need not consist of twelve. the inquiry may also be conducted by the judge alone.[footnote: dyson _v._ rhode island company, 25 rhode island reports; 57 atlantic reporter, 771.] in most of our states this common law practice has been abandoned, and damages, in cases of the kind above described, would be assessed by a jury of twelve. this is because otherwise a defendant who did not dispute his liability for the act complained of and only wished to reduce the amount of damages claimed in the writ might, after declining to appear and plead, come forward with a motion to be heard by the court on the question of damages. a motion of that kind would naturally be granted, and the effect would be to transfer the decision of the only actual controversy between the parties from a jury to a judge. in connecticut the old practice was maintained until 1907, and the courts held that on the hearing as to the damages, in actions where there had been no contract between the parties to fix the rule of assessment, the defendant might show, if he could, that only nominal damages should be given, because really the plaintiff had no cause of action at all.[footnote: lennon _v._ rawitzer, 57 conn. reports, 583; 19 atlantic reporter, 334.] the result was that many suits arising out of railway accidents in that state were brought against the company in fault in other states in which process could be served to compel its appearance, and where a full jury trial could be secured. the legislature finally interposed and gave the plaintiff a right to claim a trial by jury, notwithstanding a default.[footnote: public acts of 1907, 665.] * * * * * chapter xiii formalities in judicial procedure the sessions of a court of record of general jurisdiction are daily opened by a formal proclamation made, at the command of the judge, by the crier or sheriff's officer in attendance. in many states the ancient english style of expression has been preserved, which dates back to the norman conquest, and begins with a cry of "_oyez, oyez, oyez_." these proclamations are often closed with such words as (for instance) "god save the commonwealth of rhode island and providence plantations." the adjournment from day to day is announced in a similar but less elaborate manner. many courts hold a certain number of stated "terms" annually, the first day of which is fixed by statute, and each of which is adjourned whenever the business that may come before it is finished, lasting sometimes but a few days and sometimes months. in a number of states such terms are opened by prayer offered by a minister of religion, invited in for the purpose by the sheriff or court attendant. no regular chaplain is employed, and one term may be opened by a presbyterian minister and the next by a roman catholic priest. in some of the smaller counties in massachusetts the sheriff or his deputy daily escorts the judge to and from the court house, in accordance with what has been the usage from colonial times. formerly it was the practice in new england to ring the bell of the principal church in the town daily at the hour when court opened.[footnote: this was continued in connecticut until the last quarter of the nineteenth century.] in many courts it is the custom for all present to rise on a signal from the sheriff or marshal when the judge enters the court room to take his seat on the bench. this is the general usage in the federal courts and in the appellate courts of states. in the latter a formal proclamation is often made by the sheriff to announce the coming of the judicial procession, concluding with a "god save the commonwealth." in some states formal bows are interchanged between bench and bar as the judges take their places, after which the court is opened by the customary proclamation and the bar then requested by the judges to resume their seats. the rules of official precedence are strictly observed in appellate courts. in entering the court room the chief justice advances first, and his associates follow in the order of the dates of their commissions, the senior associate justice taking his seat on his right, the second in seniority on his left, the third in seniority on the right of the senior associate justice, and so on; the junior in commission occupying the end seat on the left of the bench. the members of the supreme court and of the circuit court of appeals of the united states have always worn black silk gowns. the members of the supreme court of south carolina have worn them from a time antedating the revolution. the new york court of appeals in 1877, at the request of the bar, preferred through david dudley field, adopted the practice,[footnote: in 1903 it was extended to _nisi prius_ courts held by justices of the supreme court.] and the same thing has since been done by appellate courts in several other states. in one of these, massachusetts, they had been worn in the colonial era. about 1760, chief justice hutchinson introduced gowns and cassocks there on the supreme bench, and also gowns, bands, and tie-wigs for lawyers who were admitted as barristers of the superior court.[footnote: "life and works of john adams," ii, 133, note, 197.] the latter soon abandoned these, but gowns were retained by the judges until 1793.[footnote: publications of the colonial society of massachusetts, v, 22; amory, "life of james sullivan," i, 261, note.] in north carolina gowns and bands were worn by the members of the supreme court in 1767.[footnote: proceedings of the colonial society of massachusetts, vi, 389.] in new jersey, the bar were at one time required to assume them by a rule of the supreme court, but the rule was vacated in 1791. at the first opening of the supreme court of the united states, in 1790, chief justice jay wore a gown with salmon-colored facings on the front and sleeves, of the style then used by doctors of laws created by the university of dublin, from which he had received that degree.[footnote: 134 u. s. reports, appendix.] it has not since, in that or any other american court, been the practice for judges to wear academic hoods or other decorations on the bench. * * * * * counsel, in addressing the court, rise and begin with "may it please the court," "may it please your honor," or, before a court in bane, "may it please your honors." the term "you" would never be used to a judge on the bench; but that of "your honor" would be employed. great pains is taken by the officers in attendance to prevent anything on the part of the audience that could in any way disturb the proceedings, such as loud conversation or unnecessary moving from place to place. there is a good deal of antique form in the manner in which, under the direction of the clerk, prisoners are arraigned and juries are made up or "impanelled" for the trial of a cause. in charging a jury, the judge commonly rises and the jury do the same. when sentence is pronounced on a conviction for crime the prisoner is required to rise. in cases of capital offenses, he is asked by the judge if he has anything to say why judgment of death should not be pronounced against him. it is highly improbable at that stage of the cause that he should have anything to urge which has not been already considered, but the ancient english practice in this respect is still followed, for it is not absolutely impossible that something may have occurred since the verdict that would affect the judgment. * * * * * chapter xiv trial courts for civil causes the great bulk of litigation is confined to the civil trial courts, that is, to courts for the trial of ordinary causes between man and man. it also has its seat in the trial courts of the states, for not only is the judicial power of the united states confined by the constitution within narrow limits, but these have been made still narrower by the action of congress from time to time. most lawsuits never get to trial. the defendant generally has no defense, and is well aware of it. the suit is brought to obtain security or force a settlement. he employs no lawyer and lets things take their course. the result is a judgment against him for default of appearance; for if one who has been duly summoned to court to answer to a demand fails to attend and answer, the court assumes that there is no answer that he could make, and disposes of the cause on such evidence as the plaintiff may produce. on the other hand, the plaintiff often does not care for a judgment. he has become satisfied that, if he got one, he could not collect it, or he has availed himself of the suit to secure a compromise of the matter in demand on satisfactory terms. in such case, or if, after bringing an action, he becomes convinced that he cannot maintain it, he withdraws it, or if the defendant insists, suffers a judgment to go against him, called a nonsuit. in some states the writ or process by which the action is begun must be accompanied by a full statement of the particular nature of the plaintiff's claim. in others this is not required, and such a statement is only furnished when specially ordered by the court. if the case goes to trial on the merits, it will be on such a statement furnished by the plaintiff, and on some paper filed by the defendant by way of answer. occasionally these pleadings, as they are called, are such as to call out further statements or claims by way of reply and rejoinder. their form is now generally regulated by statutes, and is much the same in most of the states, being based upon a system known as "code pleading," which originated in new york about the middle of the nineteenth century. it is simpler and less technical than the system under the common law which it replaced. if the defendant has any objections to the maintenance of the suit, on such a ground as that it is brought in a wrong court, or a wrong way, these are first disposed of. then, if he asserts that the plaintiff on his own showing has no case, or if the plaintiff asserts that the defense set up is insufficient on its face, this being a question of law, the judge decides it without the aid of a jury. when, however, the facts are in dispute, a jury must be called in, if either party claims it, in an action not of an equitable nature, when the matter in controversy is one of any considerable amount. in this country we adhere to the old common law mode of taking exceptions to the legal sufficiency of written pleadings. this was by filing a paper called a "demurrer," in which the particular objections were set out, unless, as was frequently the case, they were so fundamental as to be apparent at the first glance. in many states, however, the objections must always be particularized. in england demurrers are no longer used. her judicature act of 1873 put an end to the common law system of pleading, reconstituted her whole method of judicial procedure, and authorized the judges to make rules and orders from time to time to adopt the new scheme to convenience in practice. one of their orders, passed in 1883, abolished demurrers. in place of them, the party desiring to have the benefit of points of law arising on the face of the pleadings may state his point to the court and ask to have it set down for separate argument before proceeding to a trial of the cause on the facts. american lawyers are not satisfied with the reasons which led to this change. they were that the old practice made it a matter of right to claim a special hearing on a law point, while the new order would leave it to the discretion of the judge. the english judges are few and able. such a plan may work satisfactorily under their administration, but it might often lead to useless delays and expense if introduced in a country where judges are so numerous and of such different qualifications as is the case in the united states. our trial courts are now generally held by a single judge. until the latter half of the nineteenth century it was not uncommon to have three judges sit together in county or city courts. one of them would be a lawyer and the others not.[see chap. viii.] in cities the two side judges were generally aldermen. a tribunal thus constituted is better adapted in some respects to trying questions of fact than a single judge. it is a jury of three acting by a majority. but for the conduct of a jury trial it is unwieldy, slow-moving and uncertain. in most cases any question of law or legal practice will be virtually decided by the presiding judge, but he will usually pause to go through the form of consulting his associates. occasionally they will overrule him, and in such case it will be apt to be by a misunderstanding or misapplication of law. the expense of three judges, however moderate the compensation, has also weighed in favor of an abandonment of the system. it naturally results in paying too little to the chief judge, and too much to the others; and always costs more than it would to pay one man a sufficient salary. we have not the need of several judges to hold a trial court, which is felt in many countries. they use them for a purpose which our juries supply. for similar reasons americans have not seen any occasion for organizing special courts, such as are the german _gewerbegerichte_ and _kaufmannsgerichte,_ to try special classes of causes. a jury of twelve will be apt to contain some men who will adequately represent those interested in any ordinary industrial or commercial controversy. petty suits not of an equitable nature must generally be brought before a justice of the peace, who disposes of them himself, both as to matters of evidence and fact, but subject to an appeal to a higher court in which a jury trial can be had. in some states he can summon in a jury of six and leave the facts to their determination. the pleadings before him are usually in the same form as in the higher courts. in jury trials of civil causes the judicial function is, so far as possible, divided into two distinct parts. all questions of pure law are decided by the judge alone. all questions of pure fact are decided by the jury alone. all questions turning on the application of the law to the facts are decided by the jury under instructions from the judge as to what applications of the law it would be competent for them to make under the particular circumstances which they may find to have existed. the judge also has a large discretionary power in minor matters arising in the course of the suit. it is for him to say when it shall be tried; whether the written pleadings are in proper shape, and if not whether they may be amended; and in what order and within what limits the evidence may be introduced. no countries in the world have so artificial a set of rules of evidence as england and the united states. this is because in no other country is the right to a jury trial so extensive. many of these rules date back to the early history of the english common law. it was a time of general illiteracy. the ordinary juror could not read or write. his powers of reasoning and discrimination had had little or no cultivation. it was thought dangerous to allow him to listen to any evidence that was not of the clearest and best kind. it was thought necessary to bring all witnesses in person before him and let him hear their voice and look into their faces in order to give him the fullest possible opportunity to determine whether their testimony was worthy of credit. but while our rules of evidence were devised for jury trials, they are applied with equal rigidity in all trials. a jury may be waived; a single judge may hear the cause; and yet he must rule out of consideration whatever would have been inadmissible if it had been made the subject of a jury trial. much that in other countries is helpful in reaching a just conclusion is in this manner shut out in american courts. a man of the highest character, for instance, may say before twenty listeners that he saw a certain person shoot and kill another, and state how the whole thing happened. the person thus accused is sued for damages under a statute permitting such a remedy by the representatives of the man shot. before the trial the witness of the act dies. he was the sole witness. there is no other testimony to be had. under our system of practice, those to whom the statement was made cannot be allowed to testify to it. such testimony would be "hearsay." it would put before the jury two questions, first whether such a statement was really made, and then whether, if made, it was true. the law of evidence says that they ought not to be perplexed by questions upon questions. the tendency of american legislation of late years has been strongly toward removing some of these artificial bars to getting at the truth. the common law thought it dangerous to allow a jury to hear any witness not under oath, nor under such an oath as implied his belief in the existence of a god, or any witness having a pecuniary interest, in the event of the cause. an atheist or an agnostic could not testify. the plaintiff and the defendant could not. these restrictions have been almost everywhere repealed. the trial judge has also, and necessarily, a large discretionary power in excluding testimony which has only a remote bearing on the case, and in limiting or extending the examination of a witness so as on the one hand to prevent needless repetition, and on the other to get out the truth and nothing but the truth. he has similar authority to restrain the arguments of counsel within reasonable limits. a trial judge suddenly called upon to make a ruling on some point of law in the progress of a trial may make a wrong one. if so, he may have an opportunity to correct it at a later stage of the proceeding. he has admitted evidence which should have been excluded. in his charge to the jury he may instruct them to disregard it, and his error will thus be cured. he has excluded evidence which should have been admitted. before the case is closed he can change his ruling and allow it to come in. but so long as any ruling stands unchanged, whether it is in accordance with law or not, it is the law of the case for the purposes of the trial. counsel may endeavor to procure a reconsideration of the question, but they cannot ask the jury to adopt a different view from that taken by the judge. their only remedy is by a motion for a new trial, after the verdict, or proceedings in error before a higher court. * * * * * trial courts generally sit during a greater number of hours in the day than appellate courts. this is particularly true when they are held for short terms in a country shire town. in the larger cities where they sit during a large part of the year they generally have established hours from which they rarely depart, such as from ten in the morning to five in the afternoon, with a recess of an hour for lunch or dinner. formerly nine o'clock was a more common hour for opening court. in new york in 1829 the sittings were from eight to three, when there was a recess of two hours for dinner, and then from five till some time in the evening, occasionally as late as ten.[footnote: kennedy, "memoirs of william wirt," ii, 231.] the modern tendency everywhere is toward a shortening of the hours of daily session, especially when an official stenographer is employed. the clerk keeps a docket-book in which each case returned to court is entered and numbered. the entry reads thus: john doe smith vs. richard roe jones. doe is here the plaintiff and smith is the attorney who brought the suit for him. roe is the defendant and jones is the attorney who appears in his behalf. if there be more than one party on either side the words _et al._ will be added, signifying as the case may be, _et alius, et alii_ or et alium,_ or should there be three or more defendants, _et als_, signifying _et alios_.[footnote: another book is kept for criminal cases, which are docketed as "the state _v._ john doe," in others as "the people _v._ john doe," and in the federal courts as "the united states _v._ john doe."] from this docket trial lists are made up for each term or session of court. assignments for trial are sometimes made by the court and sometimes arranged by the bar subject to the approval of the court. several cases are commonly set down for each day, so that if one falls out another may be ready, and in every case so assigned the parties must be prepared at their peril to appear and proceed at any minute when called upon. in courts having a large docket of cases it is customary to set apart one day in the week for the disposition of incidental motions and for arguments on points of law. when a case is called for trial the plaintiff's counsel opens by stating its nature and the main facts as set out in the declaration or complaint which he expects to prove. sometimes the pleadings on both sides are read at length. the plaintiff's witnesses are then examined orally, after the examination of each an opportunity being given for his cross-examination by the other party. the testimony of witnesses whose attendance cannot be had, which may include any living out of the state (or, in the federal courts, over one hundred miles from the place of trial), or who are infirm or sick, may be secured by previously taking it down out of court in the form of a written deposition, under oath, before a magistrate. in such case the adverse party must have such notice as to enable him to be present and cross-examine the deponent, or to file written cross-interrogatories. depositions are received in the same manner and subject to the same objections as oral testimony. in cases in equity a considerable part of the testimony is generally presented in written form, either by depositions of the kind described or certified by a special officer appointed by the court for the purpose, who may be called an "examiner." when the plaintiff's case has been thus presented, his attorney announces that he "rests." the defendant's attorney then states what he proposes to prove, and produces his evidence, at the close of which the plaintiff has the opportunity to meet any testimony so produced as to points not covered by the plaintiff's case as presented "in chief," by rebutting testimony. should there be any new point brought out in the latter which the defendant had not anticipated in presenting his case (which rarely happens), he may now be allowed to introduce further testimony as to that. at the close of the evidence the plaintiff's counsel argues for his client; the defendant's counsel replies; and the plaintiff's counsel is then heard in answer to anything which has been said in behalf of the other side. if the trial has been had before a judge without a jury he then commonly takes the written pleadings and makes up his decision at his leisure; but if the case is plain may give final judgment on the spot. if the trial has been before a jury the parties argue as to facts in dispute to them, but as to the law upon these facts to the court.[footnote: see chap. xii.] in some states the arguments on the latter question are made before those on the former, and written requests or "prayers" for instructions to the jury as to the law are submitted to the court, upon which it passes before the jury are addressed. in most states there is no such division of argument; judge and jury are addressed in turn during the same speech, and counsel first know what view of the law is taken by the court when the judge gives his final charge. in every jury trial, after all the evidence is in and the arguments concluded, it is the duty of the court to instruct the jury as to what the precise controversy is and what disposition of the cause it would be permissible for them to make. if in view of facts which are undisputed by either party there can be in law but one conclusion, the judge should direct them to render a verdict accordingly. but if the facts might fairly be found as they are claimed to be by either party, he instructs them as to the law applicable to the facts so claimed by each. he can, at common law and by the practice in most states, give his own opinion as to the weight of evidence on any point in controversy. the common law requires unanimity on the part of the jury before they can return a verdict. if it cannot be had they report a disagreement, and the case stands over for another trial. if they agree upon a verdict, it must, to be effective, be accepted by the court. this acceptance is ordinarily a matter of course, but if the verdict is plainly contrary to the evidence or to the law as laid down in the charge, it may be set aside and a new trial ordered. if it gives damages which are plainly excessive, the judge may set it aside, unless the prevailing party enters a _remittitur_ of a certain amount, that is, formally stipulates on the record that the verdict shall stand only for such sum as the judge may have thus indicated to be what seems to him to be the utmost limit that ought to be allowed. in some states, if the verdict is unsatisfactory to the judge, though not so manifestly against the evidence that he would be justified in setting it aside, he may return the jury to a second consideration of the cause. when a verdict is accepted judgment is rendered in accordance with it. to this rule there are, however, certain exceptions. it sometimes happens that a verdict is returned for a plaintiff whose case as stated in his pleadings is one which in law is no case; the defendant having failed to take this objection and made his contest only on the facts. he then can ask the court not to render any judgment upon it. this is technically called a motion in arrest of judgment. again, the verdict may be rendered, by reason of the state of the written pleadings, on some immaterial point, in favor of one party, when there are other points of controlling importance in favor of the other, on which it has been admitted that he is in the right. in such case the party against whom the verdict is rendered may ask for judgment in his own favor notwithstanding the verdict. verdicts are ordinarily given directly for the plaintiff or the defendant. printed blanks for such verdicts, one headed "plaintiff's verdict," and the other "defendant's verdict," are often handed to the jury when they retire, to choose from according as they may find the facts. such a verdict is called a general verdict. occasionally one of a different form is returned at the request of counsel and by the permission of the court. this is termed a "special verdict," and sets forth the particular facts as found by the jury in detail, without finding the ultimate issue for either party. this is only proper when such a finding would have been simply a legal conclusion from these facts. a special verdict leaves it to the court to apply the law and render judgment as that requires. in many causes the testimony is all taken out of court, before some officer or arm of the court, who only reports his conclusions from it as to the matters in controversy. this is a common practice in equity, the case being sent to a "master in chancery" for this purpose. in cases of a common law nature the consent of both parties is generally required; but with that any cause may be disposed of before an arm of the court commonly termed an "auditor," "referee" or "committee." the report of such a hearing sometimes is confined to the facts which are found to have been established. in other cases it may extend to a provisional decision of questions of law arising on those facts. the ultimate decision of any question of law is always for the court, and if it accepts the report it is its duty to draw the proper legal conclusions from the facts established. as to whether the report shall be accepted, and as to the legal questions arising upon it, the parties have a right to be heard in court. improper or irregular conduct on the part of the officer making the report may be shown as a cause for rejecting it. if it is accepted the facts found generally stand as conclusively established. equity causes are generally tried before a single judge, who decides all questions both of fact and law, proceeding in the same manner as in a common law cause in which a jury has been waived. * * * * * chapter xv probate courts the english common law regarded wills of lands as in the nature of conveyances, the due execution of which, if ever called in question in a lawsuit, was to be established then and there; but if never so called in question, need never be established at all by any judicial proceeding. wills of personal property, on the other hand, were to be proved as soon as might be before an ecclesiastical court, and unless so established were ineffectual. this difference in the treatment of the two kinds of wills was due to the legal principle that so far as personal rights and obligations were concerned the personality of the dead was, after a certain fashion, continued in existence by attributing personality to their estates. these were to be administered by some one as the "personal representative" of the former owner. this personal representative discharged his personal obligations so, far as there might be personal estate or rights of property sufficient for the purpose. he was styled an executor if designated by will; an administrator if there were no testamentary appointment. a man's lands, however, went upon his death straight to his heirs unless he had by will conveyed them to some one else. that when he died they were part of his estate did not charge them with the fulfillment of his personal obligations. for the discharge of these the creditor must resort to his personal representative. his heirs occupied no such position. the administrator was always appointed by an ecclesiastical court and rendered his accounts to it. long use and the existence of a state church with a regular judicial establishment, made such a system tolerable to the english people; but the new conditions under which those of them came who planted the american colonies made it both intolerable and impossible here. while most of the colonies had an established church, none had bishops or bishops' courts. the bishop of london claimed a certain jurisdiction over all, but in none was it recognized as extending over the estates of the dead. in the crown colonies the instructions to the governors generally referred to it as sanctioned by the government but not as extending to the probate of wills. some of the governors were given _ex-officio_ full probate powers.[footnote: "the american jurisdiction of the bishop of london," transactions of the american antiquarian society, vol. xiii, 188, 194, 197.] the same considerations which early led to the general adoption of a recording system for deeds of land in all the colonies extended to wills, since they also might convey it. such records, to attain their purpose, had to be public in the fullest sense. nothing was allowed to go upon them which had not some kind of authoritative sanction proceeding from the state. deeds were first to be acknowledged before a magistrate. as to wills, the practice finally came to be to require them to be established once for all as the act of the testator by a court invested with special jurisdiction for that purpose, and also over all estates of those who die leaving no will. this, if organized for that special function particularly, is ordinarily styled a court of probate, occasionally a surrogate's court or orphans' court. it is sometimes given, and sometimes not given, a certain authority over the real property within the state while the estate is in settlement. all real estate left by a decedent is ordinarily made, by statute, liable for his debts in case of a deficiency of personal property, except so far as it may be charged with a right of dower. even if it has gone into the possession of an heir or devisee, the proper probate court can order its sale for this purpose, if it should appear on the allowance of the administration account to be necessary. the formal establishment or "probate" of a will does not affirm the validity of its provisions. it simply adjudges the instrument to be a will legally executed by one competent to make it and who had a home or property within the territorial jurisdiction of the court. commonly, if not universally, an opportunity is given, either in the first instance or by appeal to a higher court, to have these questions tried before a jury. the succession of particular persons to the property of the dead is not a matter of natural right. it rests upon positive law and is regulated by the authority of the government at its pleasure.[footnote: united states _v._ perkins, 163 u. s. reports, 625.] probate procedure is therefore wholly determined by local legislation and practice. in many states, probate jurisdiction belongs to the county courts. in others it is invested in local courts for lesser subdivisions of territory with the purpose of cheapening the settlement of estates. in a few these local courts are very numerous, all the towns of the state being distributed into small groups and each furnished with its probate court, the judge of which, in many instances, has had no legal training, and receives no compensation except stated fees for such business as may actually come before him. an appeal is given from his orders to a higher court of general jurisdiction. in practice such a system works fairly well. if there are suitable lawyers in the group of towns forming a probate district, one of them who belongs to the prevailing party is generally made the judge if he will accept the office, and if he fills it well is apt to be re-elected, whichever party may then be uppermost. if a lawyer is not appointed and a case of any difficulty presents itself, the judge will probably consult some counsel in whom he feels confidence, and who will be sufficiently flattered by the request to advise him without making any charge for it. the proper seat of administration is in the state and the local subdivision of the state where the dead man belonged. proceedings there affect all his personal property wherever it may be found, and generally his real estate situated anywhere in the state. real estate in another state can be affected by probate proceedings only if they take place there, by its authority. for that purpose "ancillary" administration is often taken out, that is, one designed to serve the interests of the general succession as administered in the seat of the principal administration. since the right of a personal representative to act for the estate of the dead comes from the positive law of the particular sovereign having the proper jurisdiction, and since no law of a particular sovereign can be enforced, by virtue of his power or anything dependent on it, outside of his territorial jurisdiction, it follows that no executor or administrator can of right maintain a suit, as such, out of the state from the laws of which he derives his authority. he may take possession of the goods of the estate found in another state, or collect debts due from its citizens if no objection be made, but if forced to claim the aid of judicial process he must first prove his title there before the appropriate probate court by taking out ancillary administration, in which case he will probably be compelled to give security for the proper discharge of his duties under such appointment. * * * * * chapter xvi bankruptcy and insolvency courts it is within the power of congress to assume the exclusive regulation of bankruptcy proceedings throughout the united states.[footnote: u. s. constitution, art. i, sec. 8.] there is in this country no real difference in meaning between the terms bankruptcy and insolvency. each denotes a _status_ into which one unable to pay his debts, as and when they fall due, may put himself, or be put by his creditors. the remedy is not confined to any particular classes of persons, and no more fault is implied on the part of one who is adjudged a bankrupt than on the part of one who is adjudged an insolvent. during most of the history of the united states there has been no uniform law on the subject of bankruptcy for the whole country. three bankrupt acts were enacted by congress from time to time during the first century after the adoption of the constitution. each followed some serious financial crisis, and was repealed not long after the immediate effects of the crisis had passed away. they were adopted as a kind of [greek: seisachtheia] to help insolvent debtors to get on their feet again. a later act passed in 1898 is still in force,[footnote: 30 u. s. statutes at large, 544; 32 _id._, 797.] and as it contains many provisions which have been found useful by creditors as well as by debtors, it is not unlikely to remain permanently upon the statute-books. the prosperity of the united states rests mainly on the absolute free trade which exists between the several states. that necessarily results in innumerable credits extended by citizens of one state to those of others, and in immense property interests in each state belonging to non-residents. in case of insolvency full justice can not be worked out except through the legislative powers vested in the united states. the act of 1898 allows any one except a corporation to become a voluntary bankrupt. practically any insolvent debtor can be thrown into involuntary bankruptcy, except wage earners, farmers, incorporated banks, or business corporations owing less than $1,000. this is so even if a state court of insolvency has already taken charge of his affairs; and if that has occurred it is of itself a sufficient reason for bankruptcy proceedings. petitions in bankruptcy are preferred to a district court of the united states. each bankrupt estate is put in charge of one or more trustees. they can maintain actions to recover or protect it, as a general rule, in the courts of any state as well as in those of the united states.[footnote: see bardes _v._ bank, 178 u. s. reports, 524.] their title does not extend to anything which by the laws of the state where the bankrupt belongs is exempt from his creditors. such exemptions differ greatly in different parts of the country. in some states certain property of the value of $5,000 may be exempt; in others the amount which the debtor can retain is comparatively trifling. there is, therefore, no uniformity in the result; but there is, nevertheless, uniformity in the rule under which the results are reached, and this is enough to support the validity of this provision of the statute.[footnote: hanover national bank _v._ moyses, 186 u. s. reports, 181.] the bankrupt may propose a composition to his creditors, and it may be accepted by a majority of them in number if they also hold the major part of the indebtedness. if such an acceptance is confirmed by the court the entire indebtedness is discharged when the total amount to be paid (including whatever is necessary to discharge all preferred claims) is deposited in court. a discharge may be granted to every honest bankrupt (whether his estate pays anything to his creditors or not), which clears him forever of all his ordinary debts. it does not apply to taxes nor to liabilities for certain wrongs of an aggravated character; nor can two successive discharges in bankruptcy be procured within six years unless the first was the result of involuntary proceedings. whenever there has been no national bankruptcy law in existence, the states have been held to be free to pass such insolvent laws as they might think proper. during the existence of a national bankruptcy law no state insolvent law can be of any force which covers the same field.[footnote: ogden _v._ saunders, 12 wheaton's reports, 213; tua _v._ carriere, 117 u. s. reports, 201; ketcham _v._ mcnamara, 72 conn. reports, 709, 711; 46 atlantic reporter, 146.] its operation is excluded or suspended as a necessary effect of the enactment of the act of congress, although that contains no express provision to that effect. most of the states have on their statute-books provisions for a permanent system of insolvency proceedings. in some they are as favorable to the debtor as the united states bankrupt law of 1898: in more they are less favorable. generally such proceedings are brought before a court of special jurisdiction, constituted both for this purpose and for the settlement of the estates of deceased persons and of those who are incapable of managing their own affairs. in the older states it is often made a condition of a discharge that the creditors shall have received a certain percentage of their claims. the relief which the states are competent to give either to debtor or to creditor is very inadequate. the discharge of the debtor is of no avail except as against those creditors who were subject to the jurisdiction of the court. none are so subject except those belonging in the state, or actually taking part in the proceedings. every bankruptcy or insolvency proceeding is a great lawsuit. the discharge is the final judgment in it. it can bind none who are not parties to the action. only those are parties who were bound to appear, or who did appear. no one belonging to any other state or country can be bound to appear, unless in the rare case of a personal service of proper process upon him, made while he was within the territorial jurisdiction. any creditor, wherever he may reside, who files a claim against the insolvent estate, or receives a dividend from it, makes himself a voluntary party. but as against a non-resident who keeps aloof and takes no part in the proceedings the discharge is worthless, even in the courts of the very state by authority of which it was granted. on the other hand, the creditor gets less aid from the state courts than a trustee in bankruptcy. the trustee in bankruptcy can sue in any court in the country in which the debtor could have sued for the same cause of action. the trustee or assignee in insolvency, acting under the appointment of a state court, can only sue within that state, unless his title has been fortified by a conveyance from the insolvent which would be good at common law. so far as his title rests on a law, by which it was taken away from the bankrupt and vested in him, it is ineffectual wherever that law is ineffectual; and the law of no sovereign is effectual of its own force outside of his territorial jurisdiction. *[footnote: booth _v._ clark, 17 howard's reports, 322, 337; hale _v._ allinson, 188 u. s. reports, 56.]* if, therefore, as is commonly true in estates of any magnitude, part of the assets can only be recovered by suit in other states, there must be ancillary insolvency proceedings there, to clothe the principal assignee with the right of action. should the insolvent be the owner of land in another state, the title to this can only be transferred in accordance with its law, and a foreign assignment in insolvency will be wholly ineffectual. nor will ancillary proceedings in insolvency be allowed to prejudice the rights of citizens of the state in which they are instituted to any security which they might otherwise have for debts due them from the insolvent.[footnote: ward _v._ conn. pipe mfg co., 71 conn., 345; 41 atlantic reporter, 1057; 42 lawyers' reports annotated, 706; 71 am. state reports, 207.] the right, however, of every sovereignty to postpone claims under a foreign bankruptcy or insolvency to the interests of its own people is modified in the united states by the constitutional provision that the citizens of each state are entitled to all privileges of citizens in the other states.[footnote: blake _v._ mcclung, 172 u. s. reports, 239.] * * * * * chapter xvii criminal procedure the american system of criminal procedure rests on the principle that the government should decide on the propriety of beginning all prosecutions, and then should bring and maintain, at its own expense, such as it may deem proper. the first step ordinarily is the filing by an informing officer of a written complaint in the office of some court or with some magistrate, upon which a warrant of arrest issues as of course. in some jurisdictions original informations in a trial court, as distinguished from indictments, can only be filed by leave of court first obtained. such is the rule in the courts of the united states.[footnote: united states _v._ smith, 40 federal reporter, 755.] there is no such preliminary consultation with judicial officers as characterizes european criminal procedure. the prosecuting officer assumes the entire responsibility of initiating the prosecution and of giving it the particular form that it may assume. he commonly acts only on such matters as are officially brought to his attention by constables or other officers of police. it is rare that the party injured by an offense complains to him personally. hence many of the lesser offences go unpunished, particularly in large cities, because the police fail to report them, on account of favoritism or corruption. the warrant refers to the complaint for its support. between them, the offense charged, the person accused, and the thing to be done by the officer who is to make service must be particularly stated. "general warrants," that is, warrants of arrest or seizure, not specifying the person who is to be arrested, nor the particular place where the seizure is to be made, are expressly forbidden by the fourth amendment of the constitution of the united states as respects federal courts, and as respects those of the states, are generally prohibited by their constitutions. any private individual may, by night or day, arrest without warrant one whom he sees committing a felony or a breach of the peace or running off with goods which he has stolen. if he knows that a felony has been committed and has reasonable grounds for suspecting that it was the act of a certain person, he may arrest the latter, although without personal knowledge of his guilt. a sheriff, constable, or other peace officer may arrest without warrant any one whom he has reasonable ground for suspecting to be guilty of a felony, although it may turn out that no such felony was ever committed. for any ordinary misdemeanor he could not, at common law, arrest without a warrant, unless he personally witnessed the wrongful act or was near enough to hear sounds indicating what was being done. in practice, officers of local police arrest freely on mere suspicion and with no personal knowledge either that any offense has been committed or that, if any, the person taken in charge was connected with it. the only risk which they run is of an action for damages, and that is slight. if one were brought and they showed that they acted in good faith and not wholly without cause, the amount recovered would probably be very small, and in any case it would be difficult to collect a judgment against one of them, as they are generally men of small means. in some of the original states a justice of the peace or higher magistrate, in whose actual presence certain misdemeanors were committed, could deal with the offender summarily and sentence him to a fine without any written complaint or warrant. this was a survival of colonial conceptions of the majesty of official station, and the statutes justifying the practice soon became practically obsolete. it is one of the distinguishing features of the english system of criminal procedure that any private individual can initiate a criminal prosecution, and that prosecutions are generally instituted in that manner. in doing so, he exercises a right belonging to every member of the general public, and the proceeding is, in that point of view, a public one.[footnote: see maitland, "justice and police," 141.] at common law there were but two guaranties against thus bringing forward frivolous or malicious accusations. the complainant was obliged to verify his charge by oath, and he was liable to a civil action if the defendant was acquitted and it appeared that there was no reasonable ground for the prosecution. in some of our states, also, if any private individual files a complaint under oath before a proper magistrate accusing another of a properly specified offense, a warrant of arrest may issue. in many there are statutes authorizing _qui tam_ actions to be brought by any one. these are actions to recover a statutory penalty prescribed for some wrongful act in the nature of a misdemeanor. the term _qui tam_ comes from the latin terms of the old english writ used for such proceedings, in which the plaintiff describes himself as one _qui tam pro domino rege quam pro seipso in hoc parte sequitur_. the plaintiff is styled "a common informer," and his action is for the joint benefit of himself and of the state, or of some other public corporation or officers designated by the statute. he is sometimes given an option to sue in the form of a civil action, or by an information and the use of criminal process. in proceedings of the latter description a warrant issues upon which the defendant is liable to arrest.[footnote: canfield _v._ mitchell, 43 conn. reports, 169.] the action may, under some statutes, be brought in the name of the government, though by and at the cost of the informer. in such case, unless it is otherwise provided, he retains the exclusive management of the cause as fully as if he appeared as the sole plaintiff on the face of the record. if the plaintiff obtains judgment, and collects the penalty, he must pay half of it over to the government. if he fails, he is personally liable to the defendant for the taxable costs of the action. under such a statute, a public prosecuting officer can sue for the entire penalty, whenever no action has been brought by a private individual. the tendency of modern american legislation is toward placing the collection of penalties for misdemeanors wholly in the hands of public officers. the _qui tam_ action is certainly a cheap mode of enforcing laws, and one likely to be pressed to a prompt issue. as observed by the late judge deady, "prosecutions conducted by such means compare with the ordinary methods as the enterprising privateer does to the slow-going public vessel."[footnote: united states _v._ griswold, 24 federal reporter, 361; 30 _id_., 762.] but they appeal to sordid motives and are liable to abuse. one who is exposed to such a suit often gets a friend to bring it, in order to forestall proceedings by others or by the state, and with a view to delaying or defeating the collection of the penalty. these considerations induced parliament to restrict the remedy in england as early as the reign of henry vii, and have proved of equal force in course of time in the united states. justices of the peace and local municipal courts of criminal jurisdiction are generally given power to deal finally with a few petty offenses, subject to a right of appeal to a court where a jury trial can be had. as to all others, their function is, when the warrant of arrest has been executed, to inquire whether there is probable cause for holding the defendant to answer to the charge which has been made against him in a higher court, and if they find that such cause exists, to order him to give sufficient security that he will appear before it for trial. the question is not whether the evidence satisfies them of his guilt, but simply whether it is sufficient, in their judgment, to make it proper to send him where the charge can be more thoroughly investigated by those who have the right to condemn or to acquit. in making this inquiry, they hear both sides, if the defendant has any testimony to offer. in most states he is now a competent witness in his own behalf, provided he desires to testify. he cannot be interrogated in any court or before any magistrate without his consent. this is a weakness in the american system of criminal procedure. under the english system of prosecutions by private persons, there are greater objections to subjecting an accused person to an examination, and it can now only be had by his consent.[footnote: maitland, "justice and police," 129.] the certainty in england also that criminal prosecutions may in any case be subjected to the power of a public officer by the interposition of the attorney-general or the director of public prosecutions makes it more important to safeguard a defendant who may be arraigned for a political offense, and whose prosecution may be inspired by reasons of a partisan nature. the magistrates upon whom the task of conducting or superintending the examination would naturally fall are also largely both representative of class interests and unlearned in the law. in the united states local prosecutors are often of a different party from that which controls the state or the united states. they have no close connection with those administering the general affairs of the government. they hold office for fixed terms, not dependent on any shifting of parliamentary majorities or change of ministry. committing magistrates are in a similar position. they are also in many cases trained lawyers. if our constitutions could be so modified or so construed as to allow them to ask the accused the questions that the sheriff who makes the arrest or the reporter who hurries after him to the jail is sure to ask, there are many reasons for believing that it would oftener prove a safeguard to innocence than an occasion for extorted and perhaps inconsiderate or misunderstood admissions. and be that as it may, it would certainly lead up to important clues, and frequently bring out admissions that were both unquestionably true and necessary to establish guilt. the fifth amendment to the constitution of the united states, and similar provisions in the various state constitutions, preclude, so long as they stand, any radical reform in this direction. they speak for a policy that was necessary under the political conditions preceding the american revolution, but which is out of harmony with those now existing in the united states. the interests of society are greater than those of any individual, and yet it is with us the state that is deprived in public prosecutions of an equal chance with the accused. while burdened with the necessity of proving his guilt beyond a reasonable doubt, it cannot, according to the prevailing judicial opinion in this country, so much as ask him at any stage of the prosecution where he was at the time when the crime charged was committed. the terms of our constitutions are not such as necessarily to demand the construction which has been generally given them by the courts. they have been commonly interpreted with a view to making them as helpful as possible to the accused.[footnote: boyd _v._ united states, 116 u. s. reports, 616.] provisions against compelling him to testify have been treated as if they forbade requesting him to testify. they would seem, on principle, quite compatible with a procedure under which the committing magistrates should in every case ask the defendant when first brought before them whether he desires to make a statement, telling him at the same time that he can decline if he chooses. should he then make one, it should be written down at length in his own words, read over to him for his assent or correction, and properly attested. many a guilty man is now acquitted whose conviction could have been secured on what such a paper would have disclosed or have given a clue to ascertaining. such an inquiry has long been the english practice. the hearing before the committing magistrate, if any contest is made, generally does not take place until some time after the arrest. each party is apt to wish time to prepare for it. meanwhile, the defendant can generally claim the privilege of release on bail, unless the crime be capital and the circumstances strongly point to his guilt. here our practice differs from that of an english court of inquiry. while there bail must be allowed in case of misdemeanors and may be in case of felonies; the amount required is frequently so large as to be prohibitory.[footnote: maitland, "justice and police," 131.] the essence of bail is that the prisoner should enter into an obligation, together with one or more others of pecuniary responsibility as his sureties, to appear whenever he may be called for in the course of the pending proceeding, on pain of forfeiting a certain sum of money. all our constitutions forbid the taking of excessive bail. the sum should be large enough to give a reasonable assurance that he will not allow it to be forfeited. in fixing the amount, which in each case is left to the good judgment of the officer before whom it is taken, special regard should be had to the gravity of the offense, the nature of the punishment in case of conviction, and the means of the defendant or his friends. if too large an amount is demanded, the defendant can get relief on a writ of _habeas corpus_ issued by some superior judge. this privilege of bail in most states extends to, or at the discretion of the court may be allowed at, any stage of a cause, not capital, even after a final judgment and sentence, provided an appeal has been allowed with a stay of execution. bail is given orally or in writing, according to the practice of the particular state. when given orally, it is termed a recognizance. this is entered into by the personal appearance of those who are to assume the obligation before a proper magistrate or clerk of court, and their due acknowledgment before him that they do assume it. he makes a brief minute of the fact at the time, from which at any subsequent time he can make up a full record in due form. when bail is given in writing, the obligation is prepared in behalf of the government and executed by the parties to it. whoever gives bail as surety for another is by that very fact given a kind of legal control over him. he can take him into actual manual custody without any warrant, and against his will, for the purpose of returning him to court and surrendering him to the sheriff. this right is a common law right, arising from the contract of suretyship, and is not bounded by state lines. if the principal absconds from the state, the surety can have him followed and brought back without any warrant of arrest. the amount of the bail, should it be forfeited, is payable either to the government or to some other representative of the public interests, as may be prescribed by statute. if the sureties have any equitable claim to relief by a reduction of the amount, there is often given by statute or judicial practice a right to the court in which the obligation was given or before which its enforcement is sought to grant a reduction from the sum which would otherwise be due upon it. when a committing magistrate requires the defendant to give bail to appear in a higher court, and he does not give it, he will be committed to jail to await his trial there. in this court he is sometimes tried on the complaint upon which he was originally arrested: oftener a new accusation is prepared. this may be either an information or an indictment. at common law, no one could be tried for a felony unless a grand jury were first satisfied that there was good ground for it. the grand jury consisted of not more than twenty-four inhabitants of the county, and in practice never of more than twenty-three, summoned for that purpose to attend at the opening of a term of court. to authorize a prosecution the assent of twelve of them was required. they heard only the case for the prosecution, and heard it in secret, after having been publicly charged by the court as to the nature of the business which would be brought before them. the court appointed one of them to act as their foreman, and he reported back their conclusions in writing, and in one or the other of two forms--by presentment or indictment. a presentment was a presentation, on their own motion, of an accusation against one or more persons. they were the official representatives of the public before the court, and it might well be that offenses had occurred, and become matters of common notoriety, prosecutions for which no one cared or dared to bring. such a proceeding was comparatively rare. the common course was to pass only on such written accusations as others might submit to their consideration. these were called bills of indictment. if the grand jury believed that there were sufficient grounds for upholding any of them, their foreman endorsed it as "a true bill," and it then became an indictment. if, on the other hand, they rejected a bill of indictment as unfounded, the foreman indorsed it as "not a true bill," or with the latin term "_ignoramus_," and this was the end of it. the organization and functions of the american grand jury are similar, except that here we have prosecuting attorneys to procure the presence of the necessary witnesses and direct the course of their examination. in the federal courts almost all criminal accusations, great or small, are, and by the fifth amendment to the constitution of the united states all charges of infamous crimes must be, prosecuted by presentment or indictment. in most of the states the intervention of a grand jury is requisite only in case of serious offenses; in some only in capital cases. it is obvious that it is less needed here than in england, since here it is not within the power of any private individual to institute criminal proceedings against another at his own will, but they are brought by a public officer commissioned for that very purpose and acting under the grave sense of responsibility which such authority is quite sure to carry with it. the grand jury, however, has its plain uses wherever political feeling leads to public disorder. it has also, since the civil war, been found an effective restraint in some of the southern states, whether for good or ill, upon prosecutions for violations of certain laws of the united states, brought against members of a community in which those laws were regarded with general disfavor. prosecutions by information are those not founded on a presentment or indictment. the information is a written accusation filed in court by the prosecuting officer. in certain classes of cases, the leave of the court must be first asked in some jurisdictions. it is not necessary that it be supported by any previous statement or complaint under oath. the officer who prepares it acts under an oath of office, and that is deemed sufficient to give probability to whatever charges he may make. if the defendant has already been bound over by a committing magistrate, such an information may take the place of the original complaint on which the arrest was made. if he has not yet been arrested, or if he was arrested and discharged by such a magistrate, the filing of an information is accompanied by a request for the issue of a warrant for his arrest from the court. such a paper is called a bench warrant, and is granted whenever necessary, whether upon a presentment, indictment, or information. an information may be amended by leave of the court at any time. a presentment or indictment cannot be. they, when returned to court, are the work of the grand jury, and they end its work. an amendment of a legal process can logically be made only by the hand which originally prepared it. this rule leads to the escape of many a criminal. if prosecuted by indictment, the case against him must be substantially proved--in whole or part--as there stated, or he goes free. prosecuting officers therefore naturally prefer to proceed upon information whenever the law permits it. the intervention of a grand jury is also often the necessary cause of a delay alike prejudicial to the state and to the prisoner. it can only be called in when a court is in session, by which it can be instructed as to its duties and to which it is to report its doings. months often elapse in every year when no such court is in session. for this reason, in case of a poor man under arrest on a charge of crime, who cannot furnish bail, it would often be much better for him were his liability to be brought to trial to be settled promptly by a single examining magistrate. at the hearing in that case also he has a right to be present and to be heard. before a grand jury he has no such right. in most states, the great majority of indictments are against those who have already been committed on a magistrate's warrant to answer to the charge, should an indictment be found. the accused thus has two chances of escape before he can be put on trial for the charge against him: one by a discharge ordered by the committing magistrate, and one by the refusal of the grand jury to return "a true bill." a grand jury is more apt to throw out a charge as groundless than a single magistrate. he feels the full weight of undivided responsibility. if he err by discharging the prisoner, he knows that it may let a guilty man go free, untried. if he err by committing him for trial, he knows that, if innocent, the jury are quite sure to acquit him. he acts also in public. the whole community knows or may know the proofs before him, and will hold him to account accordingly. on the other hand, in the grand jury room all is secret. the prosecuting attorney, if admitted, does not remain while the jurors are deliberating over their decision. no one outside knows who may vote for and who against the return of an indictment. every opportunity is thus afforded for personal friendship for the accused or business connection with him to have its influence. judges know this, and in their charge often emphasize the importance and gravity of the duty to be performed. in 1903, the prosecuting officer in one of the small counties in kentucky had prepared indictments against several men of some local prominence for arson and bribery. a special grand jury was summoned to act upon them. there was reason to expect some reluctance on the part of several. of the witnesses for the state some were no less reluctant. there was great public excitement in the court town. one witness came there over ninety miles by rail hidden, for fear of his life, in a closed chest in the car of an express company. the grand jury were told by the court that they must make their inquiry a thorough one and indict without fear or favor every person in the county who ought to be indicted. "if," the judge added, "the evidence calls for indictments and you don't make them, they will be made anyway. if you do not do your full duty, i will do mine by assembling another grand jury." they did theirs under these stirring injunctions, and the indictments were promptly found. after the indictment or information comes the arraignment. this is bringing the defendant before the court and, after the charge made against him has been read, directing him to plead to it. before the plea is entered, if he has no counsel, he is asked if he desires the aid of one, and if he responds that he does (or should he not, if the court thinks he ought to have counsel), some lawyer will be assigned to that duty. some of the younger members of the bar who are present are generally desirous of being so assigned to defend those who have no means to employ such assistance. the court ordinarily makes the assignment from among their number, but in grave cases often appoints lawyers of greater experience and reputation. no one who is so assigned is at liberty to decline without showing good cause for excuse. a small fee is often allowed by statute in such cases from the public treasury. statutes are also common providing that witnesses for the defense may be summoned at the cost of the government, if the defendant satisfies the court that their testimony will be material, and that he is unable to meet this expense. in the federal courts, in capital cases, the defendant must be furnished with a copy of the indictment and a list of the jurors summoned to court and of the government witnesses, at least two days before the trial. whether impanelling the jury for the trial of a case is a long or short process will depend largely on the intelligence and firmness of the judge who holds the court. each side can challenge a certain number of the jurors in attendance without stating any reasons for it, as well as any and every one of them for cause shown. if a juror has formed an opinion as to the guilt of the accused so definite as to amount to a settled prejudice against him, he is incompetent. in grave cases the prisoner's counsel will often seek to examine every juror whose name is drawn at great length as to whether he has such an opinion. a capable judge will keep such an inquiry within close limits. in 1824, an indictment for murder was found in kentucky against a son of the governor. the case was one which excited great public interest, and was talked over from one end of the state to the other. the result was that when the trial came on it was found impossible, term after term, to make up a jury of men who, from what they had heard or read, had not formed what the defense claimed and the court thought to be a sufficiently firm opinion as to the guilt or innocence of the accused to justify their exclusion. the legislature was finally appealed to for relief and passed a statute that an opinion formed from mere rumor should not be a ground of challenge. the case was then, in 1827, taken up for the ninth time, but with the same result, whereupon the defendant's father gave him a pardon, on the ground that "the prospect of obtaining a jury is entirely hopeless," and that he had "no doubt of his being innocent of the foul charges."[footnote: niles' register, xxxii, 357, 405; xxxviii, 336.] when a capital case is coming on, great pains will often be taken by the prisoner's counsel to ascertain the characteristics and disposition toward his client of each of the jurors who have been summoned to court. this has sometimes been carried to the extent of trickery, particularly in some of the southern states. agents have been sent over the county to see every man capable of jury service. there is some ostensible reason given for the call. he is perhaps asked to buy a photograph of the accused; perhaps to contribute to a fund to provide him with counsel. this naturally leads to some expression of opinion in regards to the charge made against him, and if the man thus "interviewed" should be afterwards offered as a juror, he is challenged or not challenged according to the information so obtained. in every criminal case the defendant's guilt must be proved beyond a reasonable doubt. a mere preponderance of evidence is not enough. in other respects the rules of evidence are applicable which obtain in civil cases. if a verdict of not guilty is returned, the court orders the discharge of the prisoner, as a matter of course, unless provision has been made by statute for an appeal by the state for errors of law committed on the trial. no such appeal can be allowed for the purpose of obtaining a new trial on the ground that the jury came to a wrong conclusion on the facts. this would be to put the defendant twice in jeopardy, which our constitutions generally forbid. even under the practice prevailing in the philippine islands, where they have no juries, and an appeal to a higher court for a new trial on the merits has always been allowed to either party in a criminal case, as a matter of right, this rule is held to apply.[footnote: kepner _v._ united states, 195 u. s. reports, 100.] if the verdict is one of guilty, the sentence is pronounced by the judge. he generally has a broad discretion as to the extent and nature of the punishment. for many offenses, either fine or imprisonment or both may be imposed, according to his best judgment. for most, when imprisonment is ordered, it may be for a term such as he may prescribe within certain limits, as, for instance, from one to five years. in a number of states of late years the judge is permitted in such a case to sentence for not less than one year, and it is left to some administrative board to determine later how much, if any, longer the confinement shall last, in view of the circumstances of the offense, the character of the prisoner, and his conduct since his sentence. a considerable and increasing group of penologists is pressing upon our legislatures the extension of the principle of the "indeterminate sentence" by removing the limit of a _minimum_ term. it is doubtful if such a change would satisfy the constitutional requirement of a trial by jury. that in its nature involves a trial before a judge and a sentence imposed by the court upon the verdict. can that be deemed a judicial sentence to imprisonment which is a sentence to imprisonment during the pleasure of certain administrative officials? judgments are to ascertain justice. to do this they must be themselves certain. in a purely indeterminate sentence there is no certainty until it has been made certain by the subsequent action of the administrative authorities. it may turn out to be imprisonment for life, and the advocates of this mode of action frankly say that such ought to be the disposition of all incorrigible and habitual criminals. if so, ought not the fate to be meted out to them by judicial authority? can anything less than that be considered as due process of law? an experienced and able judge seldom makes any serious error in grading the punishment of offenders who have been tried before him. the sentence is not pronounced until they have been fully heard as to all circumstances of extenuation, nor until the government has been heard both as to these and as to any circumstances of aggravation. the sentence, if the offense be a grave one, cannot be pronounced except in the presence of the convicted man. he has an opportunity for the last word. judges who are neither able nor experienced frequently impose sentences too light or too severe. we have too many such judges in the united states. the real remedy for the evil is to choose better ones. as between judges and boards of prison officers or of public charities, the judge always has the great advantage of having tried the case and heard the witnesses. he ought therefore to be best able to fix the term of punishment. the punishment to which one can be sentenced on a conviction of crime is now generally limited to fine or imprisonment. for graver offenses both may be inflicted: for murder, and in some states for a very few other crimes the penalty is death. the policy of the older states long was to require those whose offenses were directed against property to make good the loss of the injured party. whipping was also often added, and it was formerly a common mode of punishment throughout the country for all minor offenses. every colony used it. it was authorized by the original act of congress in 1790 on the subject of crimes, and was not abolished for the courts of the united states until 1839. it was provided for in the early statutes of most of the states, and in some still is. until 1830, it was the only mode of corporal punishment allowed in connecticut for the general crime of theft. for boys it is often the only punishment that can properly be administered. to fine them is to punish others. to imprison them is, in nine cases out of ten, to degrade them beyond recall. virginia, in 1898, reverted to it as an alternative to fine or imprisonment in the case of boys under sixteen, provided the consent of his father or guardian be first given. such a statute seems absolutely unobjectionable from any standpoint. it is often asserted that whipping is a degrading and inhuman invasion of the sanctity of the person. to shut a man up in jail against his will is a worse invasion. but as against neither is the person of a criminal convict sacred. he has justly forfeited his right to be treated like a good citizen. whether whipping is a degradation or not must depend much on the place of its infliction. the old way in this country, as in england, was to inflict it in public. this puts the convict to unnecessary shame. let him be whipped in private, and his only real degradation will be from his crime. so inhumanity is needless. a moderate whipping only should be allowed. that is far more humane to most men than a term of jail; that is, it detracts less from their manhood than the long slavery of confinement. of late years there has been a decided movement in the united states toward a return to the penalty of whipping for atrocious cases of assault or offenses by boys.[footnote: see paper on "whipping and castration as punishments for crime," _yale law journal_, vol. viii, 371, and president roosevelt's message to congress in december, 1904.] it is probable that it will find more favor hereafter in the south as a punishment for negroes. most of their criminals are of that race. the jails have no great terrors for them. they find them the only ground where they can mingle with their white fellow-citizens on terms of social equality. but they are sensitive to physical pain. a flogging they dread just as a boy dreads a whipping from his father, because it hurts. the south may have been held back from applying this remedy in part from the apprehension that it might be considered as reinstating the methods of slavery. no such criticism could fairly be made. confinement in jail is involuntary servitude, and involuntary servitude is slavery. whipping is a substitute for it: it saves from slavery. in several of the southern states, instead of imprisonment, ordinary offenders are set at work in the open air, either on convict farms, or in chain gangs on the highway, or in the construction of railroads or similar works. this plan prevails in georgia and arkansas to such an extent that very few are confined in the penitentiary. the convicts in these states are mainly negroes. when, as has been at times permitted, they have been turned over to private employers to work in this manner for wages paid to the state, many of the abuses of slavery have reappeared, and public sentiment is becoming decidedly adverse to the allowance of such contracts for convict labor. similar objections do not lie in their employment on state farms, and in north carolina and texas this has been tried with considerable success.[footnote: see "bulletin de la commission pã©nã©tentiaire internationale," 5th series, ii, 179.] special courts have been organized, or special sessions of existing courts directed, for the disposition of prosecutions against children in several of the states and in the district of columbia during the past few years. the judge holding such a "juvenile court" or "children's court" is expected to deal with those brought before him rather in a paternal fashion. an officer is generally provided, known as a probation officer, to whom the custody of the accused is largely committed both before and after trial. he is to inquire into each case and represent the defense at the hearing. in case of conviction, the child can, on his advice, be released on probation, or the sentence can be suspended. for errors of law committed by the judge in the course of the trial the defendant commonly has a right of appeal. until 1891 this was not true in the federal courts, and a man convicted and sentenced there under an erroneous view of the law and in disregard of any of his rights had no remedy, even in a capital case. it was so in delaware until 1897. in some states there is a right of appeal in favor of the government as well as of the defendant for errors of law, and this even after a jury trial ending in a verdict of acquittal. it is there held that the common constitutional provision that no man shall be put twice in jeopardy of life or limb is not contravened by the allowance of such a remedy. the writ of error is a stage in the original prosecution. one acquitted of crime is deemed not to be put out of jeopardy unless he has been acquitted according to the forms of law, and after a trial conducted according to the rules of law. what these rules are, in case of dispute between the government and the accused, must be determined by such proceedings in the cause as the legislature may deem best adapted to ascertain them in an authoritative manner. such a mode may properly be furnished by allowing a resort to a higher court, and a resort in favor of either party.[footnote: state _v._ lee, 65 conn. reports, 265; 30 atlantic reporter, 1110; 48 american state reports, 202; kent, _j_., in people _v._ olcott, 2 day's reports, 507, note.] in other states such a review, in favor of the government, of the conduct of the cause is only supported when the exceptions taken are founded on what may have preceded the trial.[footnote: people _v._ webb, 38 california reports, 467.] this distinction is approved by the supreme court of the united states.[footnote: kepner _v._ united states, 195 united states reports, 100, 130.] for errors in conclusions of fact the defendant, in certain cases, has a remedy on a petition for a new trial, but in no case can the state ask for one. this is true even though the trial was not had to a jury. there is no doubt that new trials are too often granted in the united states in favor of those who have been convicted of crime. particularly is this true when they are ordered because of some irregularity of procedure or slip in the admission or exclusion of evidence. a verdict, whether in a civil or criminal case, should stand, notwithstanding it was preceded by erroneous rulings or omissions of due form, unless the court of review can see that substantial injustice may on that account have been done.[footnote: see paper on "new trials for erroneous rulings upon evidence," by professor j. h. wigmore, in the _columbia law review_ for november, 1903.] to release a convicted criminal for error in mere technicalities not really affecting the question of his guilt tends to make the people lose faith in their courts and resort to lynch law as a surer and swifter mode of punishment. appeals in criminal causes are, however, much rarer and also much less often successful than is generally supposed. about eleven thousand persons were convicted of felonies in the county courts of new york during the five years from 1898 to 1902, inclusive of each, and of these less than nine in a thousand pursued an appeal, not a third of whom secured a judgment of reversal.[footnote: nathan a. smyth, _harvard law review_ for march, 1904.] in massachusetts, about a hundred thousand criminal prosecutions are annually brought, and the appeals to the supreme judicial court from sentences of conviction rarely exceed twenty to twenty-five in number, and upon these in each of the years 1902 and 1903 only two new trials were granted.[footnote: _law notes_ for december, 1904.] a comparison of the number of those put to death in the united states for crime by the courts, and on a charge of crime by a mob, for the past three years shows these results: executed by judicial sentence. lynched. total. 1901 118 125 243 1902 144 96 240 1903 123 125 248 a large majority of those lynched were negroes, and met their fate in the south. it is extremely difficult to secure a conviction of those who take part in such acts of violence. they commit the crime of murder, and the penalty is so heavy that their fellow-citizens are unwilling to subject them to it. the offenses with which the men whom they kill are charged are also generally of a nature which make them peculiarly offensive to the community. many are negroes charged with the rape of a white woman, to whom it would be intensely disagreeable to testify against them. not a few are men under sentence of death, who it is feared may escape or delay punishment by an appeal. such considerations cannot excuse, but present some slight palliation for those acts of mob violence by which the people of the united states are so often disgraced. it may be added that out of the southern states they are quite rare, and in the northeastern states substantially unknown. of the one hundred and four lynchings in 1903, only twelve occurred in the north or west. * * * * * chapter xviii the exercise of judicial functions out of court a public officer, whose duties are mainly other than judicial, may be invested with judicial power to be exercised only in certain causes which may be brought before him, in disposing of which he acts as a court. such an one is a judge only when he is holding court. when it is adjourned, no court exists of which he could be a judge. justices of the peace and parish judges are officers of this description. but ordinarily judges are appointed to hold some regular court, with stated sessions, which is always in existence. to such a judge considerable powers of a judicial nature are usually given for exercise when his court is not in session. the writ of _habeas corpus_, for instance, may be issued either by a court of record or by a judge of such a court, if applied for when the court is not in actual session. in the latter case, the return of the writ is made to him, the trial had before him, and judgment rendered out of court, or, as it is styled, "at chambers." while sitting for such a purpose, he may be regarded as exercising functions which really belong to the court and acting as a part of it. statutes often, in case of a court having but a single judge, give him power to hold special courts whenever he may think proper. in such a case no very definite line is drawn between what judicial business the judge does and what the court does. while the proper and normal constitution of a court of record requires the attendance not only of a judge, but of a clerk and a crier or sheriff's officer, the only one whose presence is indispensable is the judge. a district judge of the united states has this power of holding special courts, and is a court wherever and whenever he pleases to transact judicial business, whether he describes himself in such papers or process as he may issue, as court or judge.[footnote: the u. s. _v._ the schooner "little charles," 1 brockenbrough's reports, 382.] the judges of courts having equitable jurisdiction act often out of court in the issue of temporary injunctions. these are writs directing some one to refrain from doing a certain act. they generally direct it under pain of a specified pecuniary forfeiture; but whether they do so or not, disobedience is punishable also by arrest and imprisonment, being treated as a contempt of court. the need of an injunction is often immediate. it would be worthless unless promptly granted. when, therefore, no court having power to issue one is in actual session, there would be a failure of justice if the judge could not act to the extent of granting temporary relief. whether the injunction should be made permanent is a subsequent question, to be determined after a full hearing by the court. it may, in urgent cases admitting of no delay, be issued _ex parte_, but ordinarily the defendant is notified and has an opportunity for a summary hearing, either orally or on affidavits, before action is taken. a similar power often vested in judges at chambers is that of appointing a temporary receiver; that is, of some one to take temporary charge of property in behalf of and as agent of the court, when this seems necessary in order to preserve it. if the affairs of a commercial partnership get into such a condition that the partners cannot agree on the mode of conducting it, such an appointment can be made to tide matters along for the time being. so in case of an insolvent debtor his estate may, under certain circumstances, be placed in a receiver's hands by a summary order, issued out of court. it may be added that by the statutes both of the united states and of all the states many powers of a _quasi_-judicial character are conferred on judges to be exercised out of court, such as those of ordering the arrest of one suspected of criminal conduct, examining into the charges against him on his arrest, and admitting him to bail or sending him to jail for want of it. * * * * * chapter xix appellate courts for each of the states and territories as well as for the united states there is one supreme court of appellate jurisdiction. the supreme court of the united states can entertain original actions of certain kinds.[footnote: see chap. ix.] a few also of the state supreme courts of appeal have a limited original jurisdiction. this is generally confined to equity causes, election contests and certain actions for extraordinary relief known as prerogative writs, such as informations in the nature of _quo warranto_ and writs of mandamus. the term "appeal" in its strictest signification is confined to a removal of a cause after trial to a higher court for a new trial on the merits. it is also and now more commonly used to denote such a removal for the purpose only of inquiring whether any legal errors were committed on the trial or are to be found in the judgment. in this sense it covers proceedings by a writ of error, and any other mode of reviewing questions of law.[footnote: see the _federalist_, no. lxxxi.] if it does not appear from the record of the lower court that any of the errors that may be claimed (or "assigned," as the phrase is) exist, the judgment is affirmed; otherwise the cause is sent back for a new trial or, if the objections are fundamental and fatal to its maintenance, is dismissed. appellate courts are of many kinds. some are such exclusively; some mainly. in others the functions of entertaining appeals is a minor one, most of their time being occupied in trying original causes. an appeal from judgments of a justice of the peace, for instance, is generally given on the merits to county courts, but the greater part of the litigation before them comes there in the first instance. so the judgments of county or other minor courts are often reviewable on appeal for errors in law in some superior court which, like them, is principally occupied in the exercise of an original jurisdiction. when the american colonies passed into states, as has been seen, they were habituated to the thought of a supreme controlling authority exercised by one tribunal of a judicial character of last resort. the judicial committee of the privy council had administered this sovereign power for them, and for a long period of years, with general acquiescence.[footnote: see chap. i.] the uniformity of result thus obtained was acknowledged to be advantageous. it was now necessary to replace them by american courts of last resort, and it was not difficult in doing so to improve upon the english model. the time had come for separating, as far as it could conveniently be accomplished, judicial from political power. virginia was the first to act. a few days before the declaration of independence she adopted a constitution (under which the government, was carried on until 1830, though it was never formally submitted to or ratified by the people) providing for a separate judiciary headed by a supreme court of appeals whose judges should hold office during good behavior, and be ineligible to the privy council or general assembly. this divorce of judiciary and legislature was not the plan universally followed. new jersey, in which as a colony the governor and council had possessed an appellate power like that vested in the english house of lords, was so well satisfied with this arrangement as to continue it in her constitution of july 3, 1776, and up to the present time puts upon her supreme court a certain number of judges who give but a part of their time to this work, and are not necessarily (though in practice of late years they generally have been) lawyers. new york, in her constitution of 1777, pursued a somewhat similar plan. her highest court was one "for the trials of impeachments and the correction of errors." its members were the senate with the chancellor and judges of the supreme court. when a judgment of that court was brought up for review the judges were to state their reasons for giving it, but had no vote. this scheme was adhered to with little modification until 1846. what made it tolerable was that many of those elected senators were naturally lawyers, and that to be in the senate soon became the ambition of a lawyer with any desire to know how it would feel to be a judge. able and learned opinions were pronounced by such men in exercising their judicial functions, and some of them in the new york reports are still frequently the subject of reference as clear and satisfactory statements of legal principles. connecticut, in 1784, when she instituted for the first time a court of last resort, made it up of the lieutenant governor and the twelve assistants, and soon added to it the governor himself. a plan of this kind was likely to work in that state, as in new york, better than it looked. lawyers by this time had come to fill most of the higher offices of state. although the assistants were elected annually it was under a complicated scheme of nomination, which, unless in case of a political revolution, ensured re-election in every case. a majority of the assistants were always members of the bar. they were also federalists from the beginning of party divisions in the country. naturally, the republicans found such a state of things intolerable. all the power of government in connecticut, said one of those who were celebrating jefferson's second election to the presidency in 1804, "together with a complete control of elections, are in the hands of seven lawyers who have gained a seat at the council board. these seven men virtually make and repeal laws as they please, appoint all the judges, plead before those judges, and constitute themselves a supreme court of errors to decide in the last resort on the laws of their own making. to crown this absurdity, they have repealed a law which prohibited them to plead before the very court of which they are judges." attacks like this were too just to be resisted, and two years later the governor, lieutenant-governor and assistants were replaced by the judges of the superior court. constitutional provisions that the right of trial by jury shall be preserved inviolate preclude, as a general rule, the establishment of courts in which the judges can make a final disposition of petty causes which turn on disputed facts. an appeal from their decision must be allowed, and a new hearing given on the merits in a court furnished with a jury. under the constitution of the united states a trial by jury cannot be claimed in civil cases at common law involving a demand of not over twenty dollars, and in most of the older states it cannot be in cases where it was not a matter of right prior to the adoption of their constitutions. the verdict of a jury can only be reviewed on its merits by a court of last resort where it was clearly and palpably against the weight of evidence, and in order to do this the whole evidence given in the trial court must be certified up. where a judgment has been rendered on a finding of facts made by a judge in a cause of an equitable nature, this finding can, in the courts of the united states and in many of the states, be reversed on any point on appeal. for this purpose also all the evidence that was before him, or all that is pertinent to questions involved, must be reported to the court above. except so far as the right of trial by jury may require it, it is a matter of legislative discretion whether to give any remedy in a higher court for the errors of a lower one. in some states an appeal is given from a judgment of an inferior court even though rendered on the verdict of a jury, to a higher one where another trial may be had before a judge of presumably greater ability. in many states errors in law of petty courts may be reviewed in higher trial courts. in a few of the larger ones, as in the united states,[footnote: see chap. ix.] errors in law of the higher trial courts, in a considerable class of cases, are finally disposed of in an intermediate appellate court, constituted to relieve the court of last resort from an overweight of business. * * * * * ordinarily it is the statutory right of a defeated litigant to take an appeal, provided he can state any colorable ground of exception. in some jurisdictions he is required to obtain the approval of the trial court or else of some member of the appellate court. there are many judges who think that such a practice should be universally adopted. it would certainly tend to relieve the dockets of appellate tribunals, and to bring lawsuits to a speedier end. if one were sure that the judge to whom application was made for an approval of the appeal would always act intelligently and impartially, such a precaution against useless litigation would be admirable. but the trial judge is not in a position that naturally leads to an unprejudiced judgment. the appeal is asked on account of mistakes of his, and he will not be apt to think that he has made any. the judge of the appellate court will be impartial and unprejudiced, but he will have a very imperfect knowledge of the case. he could only be asked to make a hasty examination of the points involved, and it would be quite possible for him to reject as frivolous grounds which, on a lengthy investigation after a full argument, might have seemed to him substantial. in view of these objections, and of the unequal attainments and experience of the different judges of our courts, the bar are generally in favor of making appeals a matter of right; and what the bar favors in such a matter the legislature usually enacts. * * * * * the opinions and judgments of all american courts of last resort are officially reported for publication. at first they were not so reported. the earliest volume of american judicial decisions (kirby's) was published in 1789 as a private venture. a few years later the states began to provide official reporters for their highest courts and soon assumed the expense of publication. there are now more than fifty current sets of federal and state reports, the annual output being about four hundred volumes, containing 25,000 cases. the mere indexing and digesting of these reports for the use of the bench and bar has become a science. while consulted by comparatively few who are not connected with the legal profession, they constitute a set of public records of the highest value to every student of history and sociology.[footnote: see "two centuries' growth of american law," 6.] it is the custom to prefix to the report of each case a head-note stating briefly the points decided. ordinarily this is the work of the reporter. in a few states the judges are required to prepare it; and to do so then naturally falls to the lot of that one of them who wrote the opinion. occasionally the head-note contains statements not supported by the opinion. in such case the opinion controls unless it is otherwise provided by statute. it has not been the usual custom of english judges of courts of last resort to write out their opinions. they have commonly pronounced them orally and left it to the reporters to put them in shape. the consequence has been that english reports have a conversational tone, and are not free from useless repetition. this has been not only a matter of tradition but of necessity. the english judges have always been few in number. their time has been largely occupied in the trial of cases on the facts. it is only in recent years that certain judges have been set apart especially for appellate work. american judges, on the other hand, are numerous. there is the waste of energy in our judicial system which is the necessary concomitant of the independent sphere belonging to each separate state. combination of all of them into one empire would make it easy to reduce the judiciary to a tithe of its present numbers. their salaries are part of the price we pay--and can well afford to pay--for our peculiar system of political government, under which every state is an _imperium in imperio_. the ever-increasing number of our states, each with a body of law not exactly like that of any other, and each with a written constitution which is its supreme law, requires a court of last resort in each. experience tends to show that it ought not to be composed of less than five. there should certainly be an uneven number to facilitate decisions by a majority; and unless a minority consists of as many as two, its dissent is apt to carry little weight in public opinion. in most of the states the court of last resort is not overworked. in some the judges find time to do considerable circuit duty in the trial of original causes. this keeps them in touch with the daily life of the community, and is so far good. on the other hand it disqualifies them from sitting on an appeal from their own decisions, and so either reduces the number of the appellate court occasionally below that which is normal and presumably necessary, or involves calling in some one to act temporarily, which imperils the continuity of thought and uniformity of doctrine which should characterize every such tribunal. there is also a certain natural bias, insensible perhaps to themselves, which tends to make appellate courts stand by one of their members whose rulings while holding a trial court are brought in question. for these reasons it has now become common for the states to confine their appellate judges exclusively to appellate work. the time, therefore, which the english judge gives to circuit duty the american judge can give to writing out his opinions with all the art and care which he can command. he speaks in most instances to a small audience--the bar alone. but it is the bar of this year and the next year and the next century. every volume of reports is part of the history of american jurisprudence and of american jurisprudence itself. occasionally some case arises which involves large political questions, or one of especial local interest. the opinion is then read more widely. the newspapers seize it: reviews take it up. it is not always easy to anticipate what decision will become a matter of public notoriety; what opinion will be quoted as an authority in other states; and what drop unnoticed except by the lawyers in the cause. a judge, therefore, though he have no better motive than personal ambition, is apt to do his best in every case to state the grounds of his conclusions clearly and in order. a certain style of american judicial opinion has thus grown up. it is dogmatic. it offers no apologies. there is neither time nor need for them. the writer speaks "as one having authority." he does not argue out conclusions previously settled by former precedents, but contents himself with a reference to the case in the reports in which the precedent is to be found. he is as brief as he dares to be without risking obscurity. it is undoubtedly true that many reported opinions are of a very different type. some of marshall's assume a tone of apology; but in his day it was needed. he struck at cherished rights of states, upheld by their highest courts, and struck them down, at a time when the country was unfamiliar with the conception of the united states as a national force. many of those of judges of inferior ability do not rise above their source. they are verbose, repetitious, slovenly, inaccurate in statement, loose in form; perhaps sinking into a humor or sarcasm always out of place in the reports;[footnote: see, for instance, mincey _v._ bradburn, 103 tennessee reports, 407; terry _v._ mcdaniel, _ibid_., 415; hall-moody institute _v._ copass, 108 _id_., 582.] possibly unfair in describing the claims that are overruled. but, as a whole, americans need not fear to compare the reports of their courts with those of foreign tribunals. no judicial opinions, viewed from the point of style and argument, rank higher than some of those written by american judges. those of appellate courts are generally composed and delivered by a single one of their members, but he speaks not only for the court but for every other member of it who does not expressly dissent. nevertheless, as their conclusions depend on one man for their proper expression, the responsibility for the particular manner in which the opinion may set them forth is properly deemed in a peculiar sense to rest upon him. nor, if the opinion is afterwards relied on as establishing a precedent, is the court bound by anything except the statement of the conclusions necessary to support the judgment. if unsound reasons for those conclusions are given, defective illustrations used, or unguarded assertions made, it is chargeable with no inconsistency in subsequently treating them as merely the individual expressions of the judge who wrote the opinion.[footnote: exchange bank of st. louis _v._ rice, 107 mass. reports, 37, 41. this position is not, universally accepted. see merriman _v._ social manufacturing co., 12 r. i. reports, 175, 184.] when marshall became chief justice of the united states he introduced the practice of writing all the opinions himself, and with a few exceptions maintained it for ten years, and until, by successive changes in the court, a majority were republicans. this, as has been well said, "seemed all of a sudden to give to the judicial department a unity like that of the executive, to concentrate the whole force of that department in its chief, and to reduce the side justices to a sort of cabinet advisers."[footnote: thayer, "john marshall," 54.] in some of the state supreme courts in early days, it was the practice for the chief justice to deliver an opinion in every case, but his associates frequently added concurring or dissenting ones. of late years the business of appellate courts in the united states and in most of the states is so considerable that it is necessary to divide the labor, and the cases are generally distributed equally for the preparation of opinions. it is the prevailing practice to have the opinion, when drafted by the judge to whom that duty is assigned, typewritten or printed, and a copy sent to each of the other judges for their consideration separately. at a subsequent conference each judge is called upon by the chief justice to state whether he concurs in it, and if alterations are proposed there is opportunity for their discussion. this practice did not become general until the latter part of the nineteenth century, when the typewriter had come into common use. prior to that time the draft opinion was ordinarily first made known by its author to the other judges either by reading it aloud at the final consultation or by sending one manuscript copy around to each in succession for his endorsement of approval or disapproval. in some courts it was never thus submitted at all, and so they were occasionally committed to positions which they had never intended to adopt and afterwards found it necessary to repudiate.[footnote: see for an example of this wilcox _v._ heywood, 12 r. i. reports, 196, 198.] our courts of last resort generally have before them a printed statement of the doings in the lower court which they are asked to review, and a printed argument from each party to the appeal. oral arguments are also usually heard, except in a few states where the press of business renders it practically impossible except in cases of special importance. such a press occurs mainly in the largest states, but exists also in some whose constitutions make it easy and over-cheap for every defeated litigant to carry his case up to the highest court. in the supreme court of georgia no costs exceeding $10 can be taxed against the unsuccessful party; and it has had eight hundred cases in one year upon its docket. in most states he has substantial costs to pay. these mainly are to meet the expense of printing the record sent up from the court below. a single case will sometimes fill a volume or even a set of volumes, particularly in equity causes in the federal courts, in which all the testimony is generally written out at length. the appellant has to pay for the printing in the first instance, but ordinarily, if he succeeds, the other party will be obliged to reimburse him. the cost involved is occasionally several thousand dollars. the party taking the appeal must file a paper stating his grounds for it separately, distinctly, clearly and concisely. there is a temptation to include all that can be thought of, good, bad and indifferent; and whether this is done or not will depend largely on the opinion which the lawyers have of the ability of the court. in the smaller states the judges have time to enable all to study each case with care. in the largest ones it is not uncommon to assign every case on the docket, in advance of the argument, to a particular judge. he is expected to give it special attention with a view to reporting his conclusions upon it to the court, and, should they be approved in consultation, to writing out its opinion subsequently. the assignment for a term of court is not infrequently made in the order in which the docket (or printed list of cases to be heard) is made out, the chief justice taking the first case, the senior associate justice the second, and so on. at the next term the same practice will be pursued, except that the justice next in seniority to the one who had the last case under the previous assignments will now take the first case on the new list, and the next junior justice the second. appellate courts generally sit not over four or five hours a day; this time being either preceded or followed by a consultation. they are seldom in session more than five days in the week. the cases before them are not usually assigned for argument on particular days. a list is made up of all which are ready to be heard, numbered in order, the oldest first. they are then taken up successively as reached, and the counsel concerned in each must be ready at their peril. often a limit is fixed by rule as to the number of cases that can be called for argument in any one day. in the supreme court of the united states this is the practice, and the number is ten. in some of the states it rises as high as twenty. at the first consultation over a case which has been argued, the chief justice (unless a special assignment has been previously made of it to some particular member of the court) asks the junior justice his opinion as to the proper disposition to be made of it, and each justice in turn then gives his, in the reverse order of seniority. if there is any serious disagreement the matter is generally allowed to stand over for further discussion later. at some convenient time after the views of the various justices have been ascertained the cases are distributed and, as a rule, equally for the purpose of preparing the opinions. this distribution is sometimes made by the chief justice and sometimes by agreement, or according to the arrangement of the docket. until the opinion has been finally adopted it is not usual to announce the decision. not infrequently the ultimate decision is made the other way, and a new opinion prepared by the same, or, if he remains unconvinced that his first one was wrong, by another judge. still more often the draft opinion is altered in material points to meet criticisms and avoid dissent. dissenting opinions are comparatively rare, particularly in courts where there is a chief justice with the qualities of a leader; that is, with ability, learning and tact, each in full measure.[footnote: perhaps tact counts the most, for the chief justice has the advantage of hearing the opinions of all his associates at all consultations before he gives his own. senator hoar makes a pungent comment on chief justice shaw's want of it, in his autobiography, ii, 413.] every instance of dissent has a certain tendency to weaken the authority of the decision and even of the court. law should be certain, and the community in which those charged with its judicial administration differ irreconcilably as to what its rules really are, as applied to the transaction of the daily business of life, will have some cause to think that either their laws or their courts are defective and inadequate. for these reasons judges of appellate courts often concur in opinions, of the soundness of which they are only convinced because of the respect they entertain for the good judgment of their associates. they are willing to distrust themselves rather than them. not seldom, however, dissent and the preparation of a dissenting opinion has in the course of time, aided, perhaps, by some change of membership, converted the court and led to overruling a position incautiously taken which was inconsistent with settled law.[footnote: a striking instance of this is the case of sanderson _v._ pennsylvania coal co., 86 pennsylvania state reports, 401; 94 _id_., 302; 102 _id_., 370; 113 _id_., 126; 6 atlantic reporter, 453.] more than eighty out of every hundred of the opinions delivered in the courts of last resort of each state of the united states, excepting one (new jersey), and contained in the last volume of the reports of each published prior to june, 1904, were unanimous. in new jersey seventy-three out of every hundred were. in two states, maryland and vermont, there was dissent in but two out of every hundred cases, and in all the states taken together, out of nearly 5,000 cases decided a dissent is stated in 284 only. this made the proportion of unanimous decisions of state courts, in the country at large, to those in which there was dissent nineteen to one.[footnote: _law notes_ for june, 1904, p. 285.] a dissenting judge sometimes files an opinion which is then printed in full in the reports. more often the fact of his dissent is simply noted. in cases involving constitutional questions it is rare for a dissenting judge not to state his reasons. the importance of the subject justifies if it does not demand it. as mr. justice story once observed, "upon constitutional questions the public have a right to know the opinion of every judge who dissents from the opinion of the court, and the reasons of his dissent."[footnote: briscoe _v._ bank of kentucky, 11 peters' reports, 257, 349.] the official reports of the courts have some of the faults of officialism. they often do not appear until long after the decisions which they chronicle have been made and their general make-up is sometimes unworkmanlike and unscientific. it requires rare gifts to make a good reporter of judicial opinions. he must have the art of clear and concise statement; the power to select what is material and drop the rest; and the faculty of close analysis of abstract reasoning.[footnote: four of the reporters of the supreme judicial court of massachusetts have been appointed justices of that court, largely in consequence of their good work in reporting. a good reporter always has the making of a good judge.] many of our reporters also are practicing lawyers of no special training for the work, and who give to it but a portion of the year. the modern sense of the value of time, of scientific treatment of whatever can be treated scientifically, and of uniformity in scientific methods led toward the close of the nineteenth century to competition in reporting. private publishing houses undertook the prompt publication, in scientific arrangement upon a uniform plan, of the opinions of the courts. this work began in 1879. the result has been that the series of official reports of the circuit court of appeals of the united states has been discontinued, and that the decisions of all our other appellate courts are now twice reported. one publishing house has grouped the states into clusters, issuing for each cluster its own series of reports, known, respectively, as the atlantic, the northeastern, the northwestern, the southeastern, the southern, the southwestern and the pacific reporters. the states forming each group have been selected mainly because they were neighbors geographically, but partly from commercial reasons. thus massachusetts, which would naturally be assigned to the atlantic reporter, has been put into the northeastern; and such inland states as kansas and colorado find their place in the pacific reporter. all the reported decisions of all the states in each group are printed in pamphlet form weekly, as they may be handed down, in chronological order; and every few months the whole issued as a bound volume. in this way, for a trifling sum a copy of any opinion of any american court of last resort can be had in a few days or weeks after its announcement, and a lawyer's library can, at slight expense, be furnished with the decisions not only of his own state but of several others having not unlike laws and institutions. the multiplication of american reports makes judicial precedents of decreasing value to the american lawyer. english cases are cited as authority far less frequently than they were before the middle of the nineteenth century. the omnipotence of parliament and the free hand with which that has been exerted to change the common law have tended to separate english from american jurisprudence. our written constitutions have perpetuated here ideas of government and property which england does not recognize. hence american precedents are of more use than english. but american precedents are becoming so numerous that the advocate who seeks to avail himself of them is tempted to cite too many and to examine them with too little care. in each state its own reports are the expression of its ultimate law. with these every member of its bar must be familiar. but the courts before which he argues listen to him with more satisfaction and greater benefit if he deals with the principles of law rather than with foreign precedents which may or may not correctly apply them.[footnote: see a valuable statistical article on "reports and citations" in _law notes_ for august, 1904.] not every opinion which is delivered is officially reported. in most states the court has and exercises the power of directing that such as they may deem of no substantial value to the profession at large shall not be. many are simply applications of familiar rules which obviously control. opinions of that kind interest only the lawyers in the cause. in the unofficial reports, however, such cases are sure to appear and the bar is divided in opinion as to whether they should not also be given a place in the official ones. it is not always easy for the court or the reporter to determine what decision may thereafter be relied on as a precedent. repeated instances have occurred in which such a use has in fact been made and properly made of some not noted in the regular reports, and not infrequently they have subsequently been inserted in them.[footnote: in the centennial volume (vol. cxxxi) of those of the supreme court of the united states, one hundred and twelve opinions are printed, the first delivered over fifty years before, which previous reporters had thought best to omit, and two hundred and twenty-one more such are published in vol. cliv. whoever runs them over will be apt to think that the previous reporters were right.] there is also in case of an opinion not to be officially reported a loss of a valuable safeguard against unsound decisions. a judge writes with more care and examines the points of law which may be presented more closely if he writes for the public and for posterity. on the whole the prevailing sentiment is that the reasons for repressing some are stronger than those for publishing all judicial opinions. it will be few only that, under any circumstances, will be omitted. the leading lawyers in every state are expected to run over, if they do not read, every case in every new volume of its reports. every case dropped lightens this task. it helps to keep indexes of reports and digests of reports and legal treatises within reasonable limits. it cuts into an accumulating mass of material, most of which must, in any event, so far as points of law are concerned, be a mere repetition of twice-told tales, that is becoming so vast in the united states as to becloud rather than illuminate whoever seeks to know what american law really is. if reporters will not select and discriminate between adjudged cases publishers can and will. many sets have been prepared and issued in recent years of selected cases on all subjects taken from the official reports of all the states. their professed aim has been to include all worth preserving. in fact, they have naturally been guided to a considerable extent by commercial considerations. to every lawyer the leading cases in his own state are of the first importance. he is not likely to buy any compilation in which a number of these do not appear, even if intrinsically, as statements of law, they may be of no great value. hence in the collections in question the rule of selection is often the rule of three, and they are apt to contain a certain proportion of the decisions of every state. the leading sets are the "american decisions," running from 1760[footnote: long after the publication of kirby's reports in 1784, some unofficial reports were published of cases decided in colonial courts prior to any which he included.] to 1869; the "american reports," from 1869 to 1886; the "american state reports," from 1886 to the present time, which three sets include over two hundred and fifty volumes and nearly 40,000 opinions; and the "lawyers' reports annotated," now extending over more than sixty volumes, the first of which was published in 1888, and contains no cases reported prior to the preceding year. spencer's rule of social evolution that all progress is from the homogeneous to the heterogeneous tends steadily and inexorably in the united states to lessen the value of judicial reports out of the state in which the cases were decided. each of forty-five different commonwealths is building upon legal foundations that are not dissimilar, but some of them are advancing far faster than others, and none proceed at exactly the same rate or on exactly the same lines. they are building by statute, by popular usage and by judicial decision. heterogeneity is most marked in legislation and it tells most there. whoever looks over a volume of reports will find a large proportion of the cases turning upon some local statute. an important index title is that of "statutes cited and expounded." in vol. 138, for instance, of the massachusetts reports (a volume selected at random for this purpose), 223 statutes or sections of statutes are noted as having been made the subject of remark in the 170 cases which it contains. almost all are massachusetts statutes, a very small proportion of which have been re-enacted elsewhere. appellate courts thus forced at every turn to study with care into the effect of local legislation, much of which, to get at its meaning, must be traced back historically through various changes during a long course of years, and in the older states sometimes for centuries, listen unwillingly to citations from decisions of other states which are even remotely affected by the statutes that may be there in force. the newer states and those with a small population are naturally the ones that rely most on foreign authority. in the last volume (vol. 26) of the nevada reports, sixty-two per cent, of the cases cited in the opinions of the court are of that kind. in the last volume (vol. 178) of the new york reports, the percentage is but thirty, and in the last of the massachusetts reports (vol. 185) it is only twenty-five.[footnote: _law notes_ for april, 1905, 8.] * * * * * in the supreme court of the united states and in several of the appellate courts of the larger states each judge is provided with a clerk at public expense. while this is a means of relief from much which is in the nature of drudgery, it sometimes leads to a deterioration in the quality of the judicial opinions. a dictated opinion is apt to be unnecessarily long, and when a clerk is set to looking up authorities, although he can hardly be expected always to select the most apposite, it is easier to accept his work and use what he has gathered than to institute an independent search. some of the appellate courts which are most fully employed, both state and federal, are provided with special libraries of considerable extent, and each of the individual judges is also often furnished with an official library, sometimes containing several thousand volumes, for his personal use, to be handed over to his successor when he retires from office.[footnote: in new york, the private library of the court of appeals contains over 6,000 volumes, comprehending all the reports of all the states, and the personal libraries provided for each judge have come to comprise 3,500 volumes.] in some states counsel have the right to demand to be heard before a full court, and those who have taken the appeal generally exercise it. as decisions go by majorities, the chance of reversing a judgment before, for instance, a court of five, which is a common number, is obviously greater when all its members sit than when four do. in either case it must be the act of three judges, and one is more likely to convince three out of five than three out of four. in the supreme court of the united states there is no means of supplying the place of a judge who is absent or disqualified. the remaining members, provided they constitute a quorum (that is, a majority), proceed without him. in most of the states there is some provision for filling the vacancy in such a contingency. sometimes it is by calling in a judge of an inferior court; sometimes by application to the governor for the temporary appointment of some member of the bar as a special associate justice to sit in a particular case. in several of the larger states all the members of the court of last resort do not and need not sit in every case. in some two permanent divisions are constituted, to each of which certain judges are assigned, and both divisions may be in session at the same time. in other states certain judges are detached for a certain time, during which they study causes which have been argued and prepare opinions. this done, they resume their seats, and others are released for similar duties. in ohio, for instance, the supreme court consists of six judges and commonly sits in two divisions of three each, having equal authority. the whole court sits to hear any cause involving a point of constitutional law. it also decides those which have been heard in one of its divisions and in which the divisional court is in favor of reversing the judgment appealed from. an affirmance by the divisional court is final, but if it inclines to a reversal the judges communicate their opinions to the full court, which also reads the printed briefs submitted on the original argument, and then without any further oral hearing pronounces final judgment. four judges, therefore, at least, must concur to accomplish a reversal. should the full court in any case be equally divided, the judgment appealed from stands. under the constitution of california (art. vi, sec. 2) the supreme court, which consists of seven judges, ordinarily sits in two departments. three judges can render a decision, but the judgment does not go into full effect for thirty days unless three, including the chief justice, have given it their approval. the chief justice also, with the concurrence of two of his associates, or four of these without his concurrence, can direct that any cause be heard before a full court within thirty days after judgment by a department court. he can also order the removal into the full court of any cause before judgment. in michigan only five out of the eight judges sit to hear a case, and if one of them files an opinion dissenting from that of his associates, the losing party can demand a rehearing before the full court. neither the bar nor the bench are quite satisfied with such methods of appellate procedure. the ohio scheme is excellently adapted for the dispatch of business, but may prevent an oral argument before those who are ultimately to decide the cause. that of california often protracts litigation. any such plan of division also must increase the risk of the court's taking a position inconsistent with one which it had previously assumed. the judges in one division may come to conclusions different from those reached in the other division; or where the court does not sit in divisions, a point may be determined by a narrow majority in one case which in a later one, through the substitution of one or two judges for those who heard the former, may be ruled the other way. the freedom of appeal which is generally conceded to defeated litigants in this country has been made the subject of severe criticism. it seems, however, a necessary incident of our political institutions. they are built upon the foundation of a profound reverence for the rights of the individual and of the equality of all before the law. our constitutions guaranty every man against deprivation of life, liberty or property without due process of law. if we could count on having as judges of our trial courts none but men of ability, learning and independence, it might be safe to leave it to them to say what this due process was. but the tenure of judicial office in most states is too brief, the pay too meagre, and the mode of appointment too subject to political influence to give always that assurance that could be wished either of the independence of the judiciary or of its representing only what is best in the legal profession. in england, until recently, there was little or no right of review in favor of one convicted of crime. but the judges are appointed for life on ample salaries, and tradition requires that they be selected only from among the leaders at the bar. nor is the right of the individual against the state deemed so sacred under english as under american institutions. it cannot be in any country where an hereditary aristocracy has from ancient times had a share in government. as has been seen, the english practice in this respect for nearly a hundred years was adopted in the courts of the united states, but public sentiment finally pronounced against it. much less could it be safely followed in the states, where criminal courts are often held by judges of little ability, less learning, and inferior standing at the bar, to which, after the expiration of a brief term, perhaps of but a year, they will return should they fail to secure a party renomination. the same reasons, if in less degree, support a liberal right of appeal in cases involving property only, and oppose restrictions based only on the amount in controversy. americans could never tolerate keeping their appellate courts for the trial of large causes only. there must be no rich men's courts. there certainly must be none to which a claim of right founded on a constitutional provision cannot be carried up, however trifling in pecuniary value may be the matter in demand. most appeals fail. there are few in which the counsel who takes them are fully confident of success. every lawyer of large experience knows that he has often won when he expected to lose, and lost when he expected to prevail. there are not many cases involving large pecuniary interests or strong personal feeling that are not appealed if there is any color for it. the proportion of appeals which are successful will generally be not far from a third of the whole number taken. of course, however, this must depend largely on the competency of the trial judges in the court where it is claimed that errors have occurred. the abler and more experienced those who do circuit duty may be, the oftener will their doings be supported in the court of last resort. short terms of office and consequent lack of practical acquaintance with the business of a trial judge is the real cause why so many appeals are taken, and are allowed to be taken in our american states. as for the federal courts of appeal, there is another and unavoidable occasion for large dockets. they have the last word to pronounce on constitutional questions, and there has probably never been a year since the united states came into existence when the legitimate powers of the general government have not been repeatedly infringed upon by state legislation. in the supreme court of the united states, the reporter began its second century with a plan of stating the number of cases affirmed or reversed at each term, but dropped it after two years. the record of these years was as follows: affirmed reversed october term, 1890 248 104 october term, 1891 185 103 a tabulation of the decisions reported in the various states in their last volumes published prior to june, 1904, shows that on a general average, in sixty-three out of every hundred appeals the judgment of the inferior court was affirmed. in massachusetts the percentage was eighty-seven per cent. in texas it was only thirty-four per cent., and in arkansas and kentucky not much over forty per cent.[footnote: _law notes_ for june 1904, p. 285.] many more appeals are taken by convicted persons in criminal cases at the south than in the north. many more criminal prosecutions are brought there, in proportion to the population. this is due largely to the presence of so large a body of colored people, most of whom have had a very inferior education and training. many more such appeals are successful also in the south than in the north. in the reports of the courts of last resort of alabama, florida, louisiana and mississippi between december 20, 1902, and april 25, 1903,[footnote: as given in vol. xxxiii of the southern reporter.] ninety-four criminal cases appear, in forty-six of which the judgment of conviction was set aside. in connecticut, delaware, maine, maryland, new hampshire, new jersey, pennsylvania, rhode island and vermont between march 12 and june 25, 1903,[footnote: as given in vol. liv of the atlantic reporter.] the reports show only twenty such cases, of which seven were set aside.[footnote: _law notes_ for september, 1903, 105.] this would seem to indicate either that the trial judges of criminal courts in the gulf states are careless or that the appellate courts there (under the pressure, perhaps, of unwise statutes)[footnote: see paper on "judicial independence," by justice henry b. brown in the reports of the am. bar association for 1889, 265.] are inclined to be too technical. if either is true it is a just cause for public dissatisfaction with the administration of criminal justice, and some palliation for the frequent resorts to lynch law by the southern people. the american plan of written opinions, at least in all cases of novelty or general interest, works better in small states than in large ones. no judge can find time to prepare more than a certain and quite moderate number in a year, if they are such as they should be. the shorter they are, the more time generally has been spent in condensing them. in a great state there must, therefore, either be a larger number of judges, or every few years there must be a temporary addition to the judicial force to clear off an accumulation of cases. the latter expedient is generally preferred. sometimes a small number of lawyers are selected to serve as a special commission of appeals. they sit by themselves, but there may be a provision for their submitting their opinions to review by the regular court. some of the leading cases in our reports have been decided by such commissioners. in california, where such a body now exists, its members are appointed by the court, and removable at its pleasure; but ordinarily they are chosen by the executive or legislative departments. sometimes when the cases on the docket of the court of last resort reach a certain number (in new york this is put at 200) the governor may call in judges of the next court in rank to sit with the regular judges until the accumulation is cleared off. fewer causes can be heard and disposed of in american appellate courts than in those of other countries by reason of two things, our practice of delivering written opinions and the fulness of treatment thought necessary in such opinions, especially when they deal with questions of constitutional law. in france, the court of cassation in 1901 heard 816 appeals.[footnote: of these, 219 were sustained and 597 rejected.] nothing approaching this number could be properly disposed of on the merits in any american court of last resort. many appeals, however, are here, as everywhere, abandoned or dismissed for some failure to comply with the rules of practice or because manifestly frivolous, and in these no opinions are ordinarily given. during the court year closing with the summer of 1903, the court of appeals of new york filed only 221 opinions, although it disposed, in one way or another, of 640 cases; and the supreme court of the united states filed 212 opinions and disposed of 420 cases.[footnote: see chap. xxiv.] in the calendar year 1904, the court of appeals of new york filed 327 opinions, and the supreme court of illinois over 500. * * * * * chapter xx the enforcement of judgments and punishment of contempts of court no court can with propriety pass a decree which it cannot enforce.[footnote: clarke's appeal from probate, 70 conn. reports, 195, 209; 39 atlantic reporter, 155; 178 u. s. reports, 186.] after the judgment comes the issue of appropriate process to compel obedience to it, unless such obedience (as is generally the case) is voluntarily rendered. the whole power of government is at the command of the court for this purpose. a sheriff with a judicial process to serve who meets with resistance can summon to his aid the _posse comitatus_. by this term is meant the whole power of his county; that is, any or all of its able-bodied inhabitants on whom he may choose to call. not to respond to such a call is a legal offense. the marshals have similar powers in serving process from the federal courts. the fact that there is this force behind a writ is so well understood by the community that occasions for resorting to its use, or indeed to the use of any actual force, are extremely rare. if the process was lawfully issued, it would be useless to resist. if unlawfully, it is easier and safer to seek relief by an injunction, or in case of an arrest, by a writ of _habeas corpus_. but there have been occasions in the judicial history of the united states when, under the influence of a general popular ferment, the service of process from the courts, and even the holding of courts, have been forcibly prevented. shay's rebellion in massachusetts (in 1786) was the first of these after the revolution. similar uprisings of less importance took place at about the same time in new hampshire and vermont. a few years later, the service of process from the new york courts was interrupted in columbia county. there was a strip of territory adjoining the hudson river, title to which was claimed both by new york and massachusetts. conflicting claims, awaking much bitter feeling, arose under grants from each government. in 1791, the sheriff of columbia county was ordered by the courts, in the course of a lawsuit, to sell a tract of this land. seventeen persons disguised as indians appeared at the time of sale to resist it, and he was killed by a shot from one of them.[footnote: report am. historical association for 1896, i, 152, note.] then came the whiskey rebellion in pennsylvania. the statutes of the united states[footnote: united states revised statues, 5299.] provide that if their courts meet with opposition of a serious nature, the president may use the army or call out the militia of one or more states to restore order. opposition to the enforcement of the revenue tax on whiskey in 1794 called for the first exercise of this power. marshals were resisted in serving process, and several counties were in a state of insurrection. washington sent so large a force of troops to suppress it that the rioters vanished on their approach, and there was no further obstruction of the ordinary course of justice. the total expense to the government in this affair was nearly $1,000,000.[footnote: wharton's "state trials," 102.] in 1799, somewhat similar opposition arose in the same state against the enforcement of the house taxes laid by congress. president adams here also sent a sufficient force of militia to suppress it.[footnote: _ibid_., 48, 459.] in 1839, a general combination was formed among the tenant farmers in new york holding long or perpetual leases from manorial proprietors to resist the payment of the stipulated rents. in several counties the greater part of the land was occupied under such a tenure. the design was to compel the landlords to sell to the existing tenants at a price fixed by public appraisal, or else that the state should take the lands by eminent domain and dispose of them to the same persons on reasonable terms. sheriffs were forcibly prevented from serving writs in dispossession proceedings. one who took with him a _posse comitatus_ of five hundred armed men, a hundred of whom were mounted, was met and turned back by a larger band, who were all mounted. the governor was finally compelled to issue a proclamation against the "up-renters," as they were called, and to protect the sheriff by a large body of militia. put down in one county, the movement soon reappeared in others. disguises were assumed, the rioters figuring under indian names and wearing more or less of the indian garb. three hundred of them, with twice that number not in disguise, prevented a sheriff from levying an execution for rent on tenants upon the livingston manor. for six years the contest went on in several counties. several lives were lost on both sides. sheriff's officers were tarred and feathered and their writs destroyed. of the rioters many were arrested and prosecuted from time to time and some convicted. five were sent to the state's prison for life. two were sentenced to be hanged. the state used its militia freely to defend the sheriffs, at a cost in one county of over $60,000, and in 1845 a series of prosecutions and convictions, resulting in over eighty sentences at one term of court, broke the back of the insurrection. it died half-victorious, however, for an "anti-rent" governor and lieutenant-governor were elected the next year, and several statutory changes in the law of leases which the malcontents had desired were soon afterwards enacted.[footnote: see paper by david murray on the "anti-rent episode in new york," report of the american historical association for 1896, i, 139.] during the period of reconstruction in the southern states, following the civil war, the courts were repeatedly broken up by violence and the service of legal process resisted, in some instances by authority of the military governor.[footnote: s. s. cox, "three decades of federal legislation," 469, 472, 495, 496, 509, 544, 565.] the writ to enforce the judgment of a court of law is called an execution. it is directed to the sheriff or other proper executive officer, and requires him to seize and sell the defendant's property or, as the case may be, to arrest and imprison him, to turn him out of possession of certain lands, or to take some other active step against one who has been adjudged in the wrong, in order to right the wrong, as the judgment may command. a judgment for equitable relief is not ordinarily the subject of an execution.[footnote: see chap. viii.] a judgment at law is generally to the effect that one of the parties shall recover certain money or goods or land from the other. on the prevailing party lies the burden of moving to get possession of what has thus been adjudged to be due. this he does by taking out an execution. a judgment in equity is an order on the defendant to do or not to do some particular act. it is now an affair between him and the court. he must obey this mandate or he will be treating the court with disrespect. to treat a court with disrespect, or, in legal parlance, to be in contempt of court, is to incur very serious responsibilities. it is in the nature of a criminal wrong, for it is a direct opposition to the expressed will of the state. whoever is guilty of it makes himself liable to arrest and to be subjected to fine or imprisonment. if, for instance, an injunction is obtained in a suit for the infringement of a patent right, it becomes at once the duty of the defendant to desist from making or selling what the plaintiff has proved that he only can lawfully make and sell. if he does not desist, the plaintiff can complain to the court, and if after a preliminary hearing it appears that his complaint is well founded, can obtain a warrant of arrest, styled a "process of attachment." on this, the proper officer takes the defendant into custody, and brings him before the court to answer for violating the injunction order. if the case is an aggravated one, he will be both fined and imprisoned, and the imprisonment will be in the common jail for such time as the court may order. it is the sting in the tail of an injunction that makes it especially formidable. the debtor who fails to pay to the sheriff, when demand is made upon an execution, a judgment for money damages commits no contempt of court. the man who keeps on doing what a court of equity has forbidden him to do does commit one. a conspicuous instance of the efficacy of an injunction was furnished by the great chicago railroad strike and boycott of 1894, initiated by the american railway union. mob violence followed. more than a thousand freight cars were burned. trains were derailed, passengers fired at, and lives lost. the officers of the union, after two or three weeks, wrote to the managers of the railroads principally affected, describing the strike as threatening "not only every public interest, but the peace, security and prosperity of our common country."[footnote: united states _v._ debs, 64 federal reporter, 724, 729.] a temporary injunction was issued against these officers and others by the circuit court of the united states in an equitable action brought by the united states under the direction of the attorney-general. they disobeyed the injunction. their arrest for this contempt of court promptly followed. this stopped the flood at its source. to quote from testimony given a few weeks later by mr. debs, the president of the union, "as soon as the employees found that we were arrested and taken from the scene of action, they became demoralized and that ended the strike.... the men went back to work and the ranks were broken and the strike was broken up,... not by the army, and not by any other power, but simply and solely by the action of the united states court in restraining us from discharging our duties as officers and representatives of our employees."[footnote: united states _v._ debs, 64 federal reporter, 724, 759.] the defendants in the contempt proceedings having been found guilty and sentenced to jail for terms varying from three to six months, appealed to the supreme court of the united states, but without avail.[footnote: _in re_ debs, 158 u. s. reports, 564, 600.] injunctions not infrequently are granted as an equitable relief against a legal judgment. _summum jus, summa injuria_ is an ancient maxim of the courts. the foundation of equitable jurisdiction is that courts of law cannot always do justice. one may, for instance, be invited to build a house on another's land, and promised a deed of the site. he builds the house and then is refused a deed. the invitation and promise were by word of mouth. the rules of law make such a house the legal property of the landowner. the rules of equity make it the equitable property of the man who built it on the faith of the landowner's invitation and promise. if the latter sue at law for the possession of the house, he may get judgment, but equity will prevent his enforcing the judgment, not because it is not a legal judgment, but because he is endeavoring to make an inequitable use of a legal right. a court of equity sometimes makes a decree establishing a title. to enforce such a judgment, a writ may be issued, called a writ of assistance. it is directed to the sheriff and requires him to do some specific act, such as putting the defendant out of possession of certain lands and turning it over to the plaintiff. it is, as appears from instances which have been given, possible that the execution of process from the courts may be defeated by violence which they cannot overcome. it is possible in fact though impossible in theory. as the sheriff can employ the _posse comitatus_, he ought always to have an overwhelming force at his command. but it is easier to "call spirits from the vasty deep" than to make them respond. public feeling may be so strong in opposition to the service of the process that mob violence will be tolerated and even openly supported. an armed mob can only be effectually met by an armed force which is not a mob--that is, by disciplined soldiers. the sheriff, if so opposed, may call upon the governor of the state for military assistance. how efficient it will prove will, of course, depend on the discipline of the militia and the firmness of its commanding officers. it is seldom that it fails to restore order, if the men carry loaded guns and are directed to fire at the first outbreak of forcible resistance. but the governor may refuse to comply with the sheriff's request. in such case, the execution of the process of the court fails because of want, not of power, but of the will to exercise it on the part of those on whom that duty rests. in every government constituted by a distribution of the supreme authority between different departments, each of them must do its part loyally with respect to the others, or the whole scheme, for the time being, breaks down. in the united states this danger is doubly great because of the interdependence of the general government and the particular states. judicial process may issue from a state court against those who oppose its execution under claim of authority from the united states; or from a federal court against those who oppose its execution under claim of authority from a state. some instances of such conflicts of jurisdiction have been already mentioned.[footnote: chap. x.] when the supreme court of the united states reverses a judgment of a state court, it can either[footnote: u. s. revised statutes, sec. 709.] itself render the judgment which the state court ought to have rendered, and issue execution, or remand the cause to it with directions that this be done. if the latter course be taken, the directions may be disobeyed. a georgia court was guilty of this contumacy in the case of worcester _v._ georgia.[footnote: 6 peters' reports, 515, 596.] if the former course be taken, the service of the execution may be resisted by the power of the state. worcester was illegally confined in the georgia penitentiary. the sentence against him had been set aside and the indictment adjudged to furnish no ground of prosecution. but if the supreme court had rendered a judgment dismissing the prosecution, and given a writ to the marshal directing him to set worcester at liberty, the officer would have found the prison doors shut in his face. every prison is a fortress, so built as to prevent rescue from without as well as escape from within. to lay siege to one would be too great an enterprise for the marshal to undertake without military assistance. for this the president could have been called upon. but he might have refused it. if so, the judgment of the judicial department would have proved inoperative, simply because the officer charged with the duty of rendering it operative had declined to fulfil that duty. the supreme court, in the worcester case, probably had reason to believe that if it had directed a call on president jackson for a military force it would have been refused. it is reported that the president, in private conversation, intimated as much. possibly he might have been justified in the refusal. south carolina was on the brink of war with the united states. georgia was her next neighbor, and might have been induced to make common cause with her, if jackson had battered down the doors of her penitentiary to release a man who, her courts insisted, had been properly convicted of a serious crime. a court can do nothing short of justice. the executive power, perhaps, may sometimes rightly act or decline to act from motives of national policy. in one instance the armed forces of a state were actually engaged, under the authority of the legislature, in forcibly resisting the service of process from the federal courts. it was in 1809, when the marshal in pennsylvania was opposed by a large body of the militia called out by order of the governor for the purpose. their commanding officer was subsequently arrested and convicted for the offense in the circuit court of the united states.[footnote: wharton's state trials, 48; mcmaster, "history of the people of the u. s.," v, 405; willoughby, "the american constitutional system," 41, 43.] in 1859, the governor of ohio refused to honor a requisition from the governor of kentucky for the surrender of a fugitive from justice. the act charged was assisting a slave to escape. this was a crime in the state from which the man had fled, but not in the state where he had found refuge. the supreme court of the united states was asked by kentucky to compel the surrender. it held that the governor had violated his duty, but that the constitution of the united states furnished no means for enforcing its performance by him.[footnote: kentucky _v._ dennison, 24 howard's reports, 66, 109.] under the shelter of this doctrine, a man indicted for murder in kentucky has been for several recent years residing in safety in indiana, because the governor of that state has refused to comply with repeated requisitions for his surrender. * * * * * every court of record while in session has inherent power to compel all who appear before it to preserve order, to obey its lawful commands issued in due course of judicial procedure, and to refrain from any expressions of disrespect to its authority, under pain of fine or imprisonment, or both. this power, unless withdrawn by statute, belongs to any justice of the peace who has authority to hold a court of record, while he is holding one. commonly it is, in his case, regulated by statute.[footnote: church _v._ pearne, 75 conn. reports, 350; 53 atlantic reporter, 955.] at common law, superior courts of record also have power during the progress of a cause to repress or punish any disrespectful acts or words done or uttered, not in its presence, but so near to it as to constitute a breach of order or tend directly to lessen its efficiency. these are deemed powers inherent in such a court, because necessary to support its proper dignity and independence. statutes are common to define or restrict them, but they cannot take them away altogether. to do so would be to take away an essential incident of the judicial power. nor can they so far reduce the penalty that may be inflicted as to deprive the court of a reasonable measure of the right of self-protection.[footnote: batchelder _v._ moore, 42 california reports, 412.] it is, to say the least, doubtful if they can even restrict its exercise by any court created by the constitution itself.[footnote: state _v._ morrill, 16 arkansas reports, 384; state _v._ shepherd, 177 missouri reports, 205; 76 southwestern reporter, 79; _ex parte_ robinson, 19 wallace's reports, 505, 510.] the accused is not entitled as of right to a trial by jury. the judge is the best guardian of the dignity of the court.[footnote: _in re_ debs, 158 u. s. reports, 564, 595.] the rule of criminal law that to convict a man of crime requires proof of guilt beyond a reasonable doubt applies to all proceedings of contempt. the accused is also allowed to go free on giving bail until final sentence, if that is to be preceded by any preliminary inquiry involving adjournments from day to day. no such inquiry is necessary when the contempt is plain and was committed in the presence of the court. in the courts of the united states and in most of the states no appeal is allowed for errors in law from a summary sentence of punishment for a contempt of court. appeals lie only from final judgments in a cause, and such a sentence for contempt is not so regarded.[footnote: _ex parte_ bradley, 7 wallace's reports, 364, 376.] if the contempt be (as it may be) made the subject of a formal criminal prosecution and a jury trial, an appeal is allowed. a punishment inflicted for contempt, even though it goes beyond the rightful jurisdiction of the court in such a matter, is a judicial act, and does not expose the judge passing the sentence to an action for damages.[footnote: bradley _v._ fisher, 13 wallace's reports, 335.] * * * * * chapter xxi judicial proceedings in territory subject to martial law martial law is the exercise of military power. it is martial rule at the will of the commanding military officer. in time of war and at the seat of war martial rule is a necessity, and under such conditions martial law may rightfully be enforced by any sovereign as an incident of the war, whether that is being waged with foreign or domestic enemies. the case is different when, though war exists, an attempt is made to enforce martial law at a place which is not the seat of war, nor so near it as to make military rule necessary for military success. constitutional provisions may also affect the question. those affecting the united states contain limitations stricter than those found in some of the state constitutions. ordinarily no military officer can rightfully enforce martial law in a place where the regular courts of his sovereign are open and in the proper and unobstructed exercise of their jurisdiction.[footnote: _ex parte_ milligan, 4 wallace's reports, 2, 127.] the first serious contest between the judiciary and the military power in this country as to the questions thus involved took place during the war of 1812. general jackson, in 1814, was at new orleans in command of the military department of the south. the city was threatened with invasion. he declared martial law, and not long afterwards arrested a mr. louaillier, a member of the state legislature, for writing a newspaper article in which he objected to the continuance of this kind of military government. louaillier obtained a writ of _habeas corpus_ from the district judge of the united states (judge hall), directed to jackson. the general, instead of obeying it, forthwith took possession of the original writ, arrested the judge, and deported him from the city. two days later despatches were received from the war department officially announcing the conclusion of a treaty of peace. judge hall now returned, and a rule to show cause why jackson should not be attached for contempt of court was issued. jackson appeared and filed a long answer, first stating various objections to the jurisdiction, and then setting up the circumstances calling for his proclamation of martial law. he had been told, he said, that the legislature was "politically rotten." the governor had warned him that the state was "filled with spies and traitors," and advised, in the presence of judge hall, and with no dissent from him, that martial law be proclaimed. it seemed a time when "constitutional forms must be suspended for the permanent preservation of constitutional rights." the lengthy paper, which was evidently written by a skilful lawyer, closed thus: "the powers which the exigency of the times forced him to assume have been exercised exclusively for the public good; and, by the blessing of god, they have been attended with unparalleled success. they have saved the country; and whatever may be the opinion of that country, or the decrees of its courts in relation to the means he has used, he can never regret that he employed them."[footnote: reid and baton's "life of andrew jackson," 408, 423.] the court, not particularly impressed with these arguments, ordered the proceedings to go forward and required the general to answer certain interrogatories respecting his course of conduct, by a day appointed. he appeared on that day and declined to answer them, with this concluding shot: "your honour will not understand me as intending any disrespect to the court; but as no opportunity has been afforded me of explaining the reasons and motives by which i was influenced, so it is expected that censure will constitute no part of that sentence, which you imagine it your duty to pronounce."[footnote: _ibid_., 387.] the sentence was a fine of $1,000, which was at once paid. the sympathy of the country was with "the hero of new orleans" in this affair, whose gallant defense of that city had cast a gleam of glory upon the close of a long and apparently fruitless war. some of her people subscribed the money to reimburse to him the amount of the penalty, but he declined to accept it. nearly thirty years afterwards congress made an appropriation for the purpose, and he received the full amount with interest (in all $2,700) from the treasury, as a legislative compensation for a judicial wrong. it would seem, however, that judge hall acted within the limits of his authority. when he signed the writ of _habeas corpus_ the state was at peace, and it was generally known, though not officially proclaimed, that a formal treaty of peace had been signed between the united states and great britain. the courts were open; his court was open; and the general should have respected the process which issued from it.[footnote: johnson _v._ duncan, 3 martin's la. reports, o. s., 530. see opinion of mr. justice miller in dow _v._ johnson, 100 u. s. reports, 158, 193; _ex parte_ milligan, 4 wallace's reports, 2, 127.] during the civil war, president lincoln was responsible for many arrests by military officers of citizens of states remote from the seat of actual hostilities, and in which the courts were open. at its first outbreak he entirely suspended the privilege of the writ of _habeas corpus_, and one issued by the chief justice of the united states was disobeyed.[footnote: _ex parte_ merryman, taney's decisions, 246.] congress in 1863 enacted that any order of the president, or under his authority, in the course of the war, should be a defense to any action in any court for what was done by virtue of it. the state courts disregarded the statute. if, they said, either the common law or martial law justified the order, it justified the act; if neither did, the fiat of congress cannot make the act a lawful one.[footnote: griffin _v._ wilcox, 21 indiana reports, 370.] the supreme court of the united states had this question before them, but did not find it necessary to decide it.[footnote: bean _v._ beckwith, 18 wallace's reports, 510; beckwith _v._ bean, 98 u. s. reports, 266. (see the dissenting opinion of two justices in the last report, p. 292.)] had they done so, it would probably have been answered in the same way. missouri inserted in her constitution of 1865 a provision similar to the act of congress. this, of course, so far as that state could do it, abrogated any rule of law to the contrary, and it was held not to contravene any provision of the federal constitution.[footnote: drehman _v._ stifle, 8 wallace's reports, 595.] the transaction in controversy, however, was before the adoption of the fourteenth amendment, and had the prohibition in that been then in existence, a different result would probably have been reached. the governor of north carolina (william w. holden) in 1870 declared two counties in a state of insurrection. the militia were called out and a number of citizens arrested. writs of _habeas corpus_ in their favor were issued by chief justice pearson of the supreme court of the state against the military officers.[footnote: _ex parte_ moore, 64 north carolina reports, 802; 65 north carolina reports, appendix, 349.] they at first refused, by the governor's authority, to obey them. similar writs were then obtained from the district judge of the united states, upon which the petitioners were, by the governor's orders, produced before the state judge. the result was the impeachment of governor holden and his removal from office.[footnote: s. s. cox, "three decades of federal legislation," 458.] while martial law is the will of the commanding officer, it may be his will to have it applied, so far as ordinary matters of litigation are concerned, by courts. for that purpose, when in occupation of enemy's territory, he may allow the courts previously existing under the government of the enemy to continue in the exercise of their functions as his temporary representatives; or he can institute new tribunals of local jurisdiction having the name and form of civil courts, and proceeding according to the ordinary rules of administrative justice. all such courts act really as his agents and subject to his control, but in practice he seldom interferes with their judgments. he cannot, however, in establishing such a temporary tribunal, give it the powers of an admiralty court over prize cases. the judgment _in rem_ of an admiralty court, condemning a captured ship as a lawful prize of war, is treated as conclusive all over the world; but this is because it is a decree of a competent court, properly established to administer a branch of maritime law which, in its main principles, is part of the law of nations and common to the world. no mere military court on enemy's territory occupies that position.[footnote: jecker _v._ montgomery, 13 howard's reports, 498, 515.] this right of the military commander exists equally on foreign territory in military occupation and on domestic territory, when the ordinary courts of his country are not open. during our civil war, in 1864, president lincoln, as commander in chief of the army and navy, set up a "provisional court for the state of louisiana," after the southern portion of that state had been occupied by the national forces and martial law declared. judge charles a. peabody of new york, who had been a justice of the supreme court of that state, was commissioned to hold it and to dispose of both civil and criminal causes. its docket became at once a full one, and important litigation was transacted there with general acceptance until the close of the war.[footnote: the grapeshot, 9 wallace's reports, 129; report of am. historical association for 1892, 199.] in the original proclamation of martial law in louisiana the commanding officer announced that civil causes between parties would be referred to the ordinary tribunals. one of the state courts, known as a district court of the city and parish of new orleans, the judge of which took the oath of allegiance to the united states, continued to sit and dispose of business in the usual course. a few months later a citizen of new york sued a military officer before it for ravaging a plantation which he owned in louisiana, and recovered judgment. a suit upon it was afterwards brought in maine, where the defendant resided. he pleaded that the property of the plaintiff had been taken to furnish his troops with necessary supplies. the case ultimately came before the supreme court of the united states. here it was thrown out, the court saying that the district court of new orleans had no jurisdiction to call military officers to account for acts done under claim of military right.[footnote: dow _v._ johnson, 100 u. s. reports, 158.] so far, however, as litigation between private parties unconnected with military operations is concerned, a court of this character, established by law, and suffered by the military authorities to continue its sessions, has competent jurisdiction, and its judgments will be enforced in other states.[footnote: pepin _v._ lachenmeyer, 45 new york reports, 27.] they have no power to entertain criminal charges against those in the military service, who would be punishable by court martial.[footnote: coleman _v._ tennessee, 97 u. s. reports, 509, 519.] in 1864, during the war, but in indiana, a state distant from the seat of hostilities, the military commandant of the district ordered the arrest of a private citizen and his trial before a military commission on charges of conspiracy against the united states, as a member of a secret organization known as the order of american knights or sons of liberty. the trial resulted in his conviction, and a sentence to death, which was approved by the president of the united states. before it could be executed, he applied to the circuit court of the united states for the district of indiana for a writ of _habeas corpus_. the judges of that court were divided in opinion in regard to the case, but it was decided in his favor when it came before the supreme court of the united states.[footnote: _ex parte_ milligan, 4 wallace's reports, 2, 121, 127.] the decision was unanimous, but in stating the reasons for it the court was divided in a manner which has not been uncommon since the death of chief justice marshall when any great question of a political nature has been involved. five justices held that the trial of a civilian by a military commission can never be vindicated in a peaceful state where the courts are open and their process unobstructed. four justices dissented, and chief justice chase thus summarized their conclusions: there are under the constitution three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the united states, or in time of rebellion and civil war within states or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the united states, or during rebellion within the limits of states maintaining adhesion to the national government, when the public danger requires its exercise. the first of these may be called jurisdiction under military law, and is found in acts of congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be distinguished as military government, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the president, with the express or implied sanction of congress, while the third may be denominated martial law proper, and is called into action by congress, or temporarily, when the action of congress cannot be invited, and in the case of justifying or excusing peril, by the president, in times of insurrection or invasion, or of civil or foreign war within districts or localities where ordinary law no longer adequately secures public safety and private rights. we think that the power of congress in such times and in such localities to authorize trials for crimes against the security and safety of the national forces may be derived from its constitutional authority to raise and support armies and to declare war, if not from its constitutional authority to provide for governing the national forces.[footnote: _ex parte_ milligan, 4 wallace's reports, 141.] the constitution of the united states contains some provisions restricting the jurisdiction of military authorities and tribunals over controversies, which are not found in the constitutions of the states. it may well be that martial law has for the united states a narrower meaning than it may possess in a particular state. the legislature of rhode island in 1842, during "dorr's rebellion," by a public act put that state under martial law until further order, or until its termination should be proclaimed by the governor. a squad of militia broke into the house of a private citizen to arrest him as an abettor of dorr, and were afterwards sued in trespass before the civil courts. the cause finally came before the supreme court of the united states, where (one justice only dissenting) it was held that the act could not be pronounced an unjustifiable exercise of legislative power under any provision of the federal constitution.[footnote: luther _v._ borden, 7 howard's reports, 1, 45.] whether the courts of rhode island could have taken a different view, under the fundamental laws of the state, was not decided.[footnote: _ex parte_ milligan, 4 wallace's reports, 2, 129.] on the other hand, there are states in which the constitution explicitly provides that "the military power shall always be held in an exact subordination to the civil authority and be governed by it."[footnote: constitution of massachusetts, declaration of rights, art. 17. _cf._ constitution of colorado, art. 2, sec, 22.] it is a serious question whether, under such provisions, a legislative or executive declaration of martial law in time of peace, in order the better to cope with some local disturbance, is to be regarded as an expression of the will of the civil authority, by virtue of which the civil courts lose the power of discharging on _habeas corpus_ one restrained of his liberty by military command. that it is such an expression was held in colorado in 1904, but by a court composed of only three judges, of whom one, in a dissenting opinion, observed that the decision of his associates "is so repugnant to my notions of civil liberty, so antagonistic to my ideas of a republican form of government, and so shocking to my sense of propriety and justice that i cannot properly characterize it." a similar question arose, but was not judicially determined, in arkansas in 1874. there was a contest over the election of governor. the constitution provided that such contests should be decided by the joint vote of both houses of the legislature. baxter, the candidate who was elected on the face of the returns, was declared elected by the president of the senate and took the oath of office. brooks, the other candidate, presented a petition for a contest to the lower house, which refused to grant it. he then applied to the supreme court on _quo warranto_ proceedings, which threw out the case for want of jurisdiction.[footnote: state _v._ baxter, 28 arkansas reports, 129.] a similar suit was then brought in a _nisi prius_ court, on which judgment was rendered in his favor,[footnote: this judgment was reversed on appeal. baxter _v._ brooks, 29 _id_., 173.] and he was put in possession of the executive chambers by an armed force which he assembled. baxter then declared martial law in the county in which the capital was situated, and arrested two of the judges of the supreme court on their way to attend a special session called to take action in _mandamus_ proceedings brought in behalf of brooks. they were rescued after a day or two by united states troops and proceeded to join their associates. the court then gave judgment for brooks in his third suit, directing the state treasurer to pay his warrants. at this point the legislature applied to the president of the united states for protection against domestic violence, under art. iv of the constitution of the united states, and his compliance by a proclamation officially recognizing governor baxter and ordering the federal troops to support him closed the history of this disgraceful incident.[footnote: mcpherson, "hand-book of politics for 1874," 87-100.] * * * * * chapter xxii appointment, tenure of office and compensation of judges the oldest which survives of our american constitution, that adopted by massachusetts in 1780, requires the appointment of judges to be made by the governor of the state, with the advice of the council, and for good behavior.[footnote: constitution of massachusetts (1780), chap. i, art. 9; chap, iii, art. 1.] this plan was substantially followed in framing the constitution of the united states. that was planned for a small number of states, perhaps only nine, certainly at first not over thirteen. the senate, therefore, would be a body small enough to serve as an executive council. its necessary enlargement by the admission of new states has long made it but ill-suited for this purpose, and has thrown the power of confirming or rejecting an executive nomination for judicial office largely under the control of the senators from the state to which the person named belongs, although this control is much weakened if they do not belong to the party of the administration. the principle that the greater the concentration of the appointing power, the greater will be the sense of individual responsibility for every appointment made, makes this result of a senate of ninety members not wholly unfortunate. the president now consults a council of two. thirteen states in all originally gave to the governor the power either of appointing or of nominating the judges of the higher courts; fourteen gave their election to the legislature; the rest preferred an election by the people.[footnote: 'baldwin, "modern political institutions," 58, 59.] if we compare the original practice in each state with its present practice, we find that there are now fewer in which the governor appoints or nominates; fewer in which the legislature elects; more in which the people do. legislative elections have been found to imply a system of caucus nominations, and have often led to a parcelling out of places among the different counties in which geographical considerations told for more than did fitness for office. in one state[footnote: conn. constitution, twenty-sixth amendment.] since 1880, the legislature has elected on the governor's nomination. in practice they have never failed to act favorably upon it. mississippi, which, in 1832, became a leader in the movement toward the choice of the judges by popular election, in her latest constitution (of 1890) follows the plan of the united states, the governor nominating and the senate confirming. the action of the confirming or electing body when unfavorable in any state has generally been unfortunate. it is apt to be affected by local or personal political influence to which the chief executive would be insensible. a large number of able men have thus, from time to time, been deprived of a seat on the supreme court of the united states who would have added to its luster. in 1867 massachusetts lost a chief justice of the first rank in this way by the defeat of benjamin f. thomas. the council refused, by a majority of one, to confirm his nomination because, though of the same party with them, he was of a different wing.[footnote: proceedings mass. historical society, 2d series, xiv, 301.] in most of the states the judges are now elected by the people.[footnote: in thirty-three. in one other (florida) the people elect the judges of the supreme court, and the governor, with the advice and consent of the senate, appoints those of the superior courts. the governor nominates in delaware, mississippi and new jersey, and in the four largest new england states. in rhode island and vermont, south carolina and virginia, the legislature elects.] this makes the choice more a political affair. the nominations are made by party conventions, and generally in connection with others of a purely political character. it also, in case of a nomination for re-election, places a judge on the bench in the disagreeable position of being a candidate for popular favor at the polls and an object of public criticism by the political press. in 1902 a justice of the supreme court of michigan was nominated for re-election. there was an opposing candidate, some of whose friends published a statement that in the nine years during which the justice had already served he had written opinions in 68 railroad and street railway cases of which 51 were in favor of the companies. he was re-elected, but some time afterwards this fact was reprinted in a local periodical accompanied by the remark that "we must conclude that either the railroad and railway companies--4 to 1--had exceptionally good cases from the standpoint of law and justice or his honor's mind was somewhat warped in their favor.... you can't expurge mental prejudice from judicial opinions any more than you can from the reasonings of theologians and atheists.... to imagine a justice deciding a case against his personal interests is too great a stretch of imagination for us to appreciate." a less brutal but more dangerous attack, made in 1903 by a religious newspaper, illustrates the same evil. the supreme court of nebraska has decided that under their constitution the bible cannot be used in the public schools. it was, of course, a pure question of the construction of a law, for the policy of which the court had no responsibility. the newspaper in question[footnote: the boston _congregationalist_ of oct. 3, 1903.] which, though published in the east, had some circulation in that state, printed this paragraph: "the supreme court judge of nebraska who wrote the decision that the state constitution prohibits the use of the bible in the public schools is standing for re-election, and the fact that he made such a decision is not forgotten by the christian voters." in states the control of which by one of the great political parties is assured, the real contest is for the nomination, and here there is even more license for unfavorable comment on the judicial record of one who seeks it. in a southern state there was such a struggle in 1903 for the nomination of the prevailing party for governor. the person who then held that place desired it. so did one of the justices of the supreme court. it is said that the friends of the former circulated a cartoon representing the five justices together as five jackasses, and another in which the justice whom they were trying to run off the field was caricatured in the act of setting aside a verdict in favor of a child injured by a railway accident. the two candidates subsequently met upon the platform for a joint discussion of the issues before the people. the governor sharply criticised the character of the supreme court. the judge caught him by the collar and was about to strike him when friends intervened, and an explanation of the remarks was made which was accepted as satisfactory. in the heat of a political campaign men do not always stop to measure words or weigh questions of propriety. the personal character and public acts of an opponent are a legitimate subject of description and comment. sharp attacks must be expected as a natural incident of such a contest, and by candidates for judicial office as well as others. the public record of all for whom votes are asked at a public election must be the subject of open criticism, or there would be danger that unworthy men would succeed. to treat such observations as have been quoted upon opinions previously written by a candidate for re-election, however unseemly or unjust, as a contempt of court would be indirectly to impair the right of free suffrage. if assertions published as to acts done or words said are false, it does not follow that they are libellous. an honest mistake may be a defense for such a misstatement.[footnote: briggs _v._ garrett, 111 penn. state reports, 404; 2 atlantic reporter, 513.] judges of trial courts, when candidates for re-election, may expect the publication of similar attacks on rulings which they have made. the following dispatches, which appeared in the same issue of a local newspaper in pennsylvania in 1903, when a county election was soon to occur, will sufficiently illustrate this: hot judicial fight promised for mercer. county will be scene of an interesting struggle for seats in the legislature. sharon, pa., dec. 25.--from present indications the coming judicial fight in mercer county will be a bitter one. public interest centers in the efforts of judge s. h. miller and his friends to secure a re-election, and the attempts of his opponents to place a. w. williams of sharon on the bench instead. while the sole topic politically is on the judgeship, the twenty or more candidates for assembly are not losing the opportunity of fixing their fences. they, too, have assumed a reticence in regard to the matter of the judgeship. it is expected that on the last lap of the race williams and miller will be the only two men remaining. there are three other candidates for the republican nomination who have thus far announced themselves. they are: w. j. whieldon of mercer; w. w. moore of mercer, and l. l. kuder, burgess of greenville. judge miller and a. w. williams are the closest of friends. judge miller asks for moderation. bars pure food prosecutions by refusing to sentence those convicted. harrisburg, pa., dec. 25.--state dairy and food commissioner warren has been confronted with a new proposition in his crusade in western pennsylvania against violators of the pure food laws. judge s. h. miller of mercer county, before whom several oleomargarine dealers were recently convicted for the illegal sale of "oleo," has refused to sentence them on the ground that the procedure of the state pure food bureau is persecution and lacking in equity. he takes the position that grocers and saloon keepers, not being expert chemists, should at least be warned previous to arrest, and be given a chance to determine whether the foods they are handling are pure or adulterated. judge miller's position is a serious impediment in the way of the enforcement of the law, and commissioner warren is preparing to take action that may compel him to punish offenders convicted before him. not infrequently in the judicial history of the united states there has been presented to a judge the choice between rendering a decision according to his opinion of the law and the facts and losing his seat, and rendering one according to public opinion, or the public opinion of his party friends, and keeping it. a judge of the high court of errors and appeals in mississippi was one of the earlier martyrs in the cause of judicial independence. the state had incurred a heavy bonded debt, which she found it inconvenient to pay. the governor, who had approved the bills under which over $15,000,000 of the bonds had been issued, concluded in 1841, after the issue, that it was forbidden by the constitution of the state, and issued a proclamation declaring them void. in a suit in chancery this question came up for decision in 1852. meanwhile the policy of "repudiation" had been made a political issue and the people had given it their approval by electing its advocates year after year to the highest offices. the chancellor upheld the validity of the bonds, and on appeal his decision was unanimously affirmed.[footnote: state _v._ johnson, 25 mississippi reports, 625; memoir of sergeant s. prentiss, ii, 268.] a few months later the term of office of one of the judges who had concurred in this opinion expired, and the people put a successor in his place who held doctrines better suited to the public sentiment of the hour. in the days preceding the civil war, the validity of the laws enacted by congress to secure the recapture of slaves who had fled to the free states was frequently attacked in the press and on the platform. the constitution expressly provided for such proceedings, and the supreme court of the united states in 1842 had pronounced the "fugitive slave law" of 1793 to be valid in all respects.[footnote: prigg _v._ pennsylvania, 16 peters' reports, 539.] the principle of this decision plainly covered the later act of 1850, but as public sentiment in the north became more and more uncompromising in its hostility to the existence of slavery under the flag of the united states, the state courts were not always strong enough to withstand the pressure to disregard precedents and let the constitution give place to what the phrase of the time called a "higher law." in 1859, a citizen of ohio was convicted in the district court of the united states and sentenced to jail for rescuing a fugitive slave who had been recaptured in ohio by an agent of his master, to whom he had been committed in proceedings under the act of congress. he was imprisoned in an ohio jail, the united states then having none of their own, but placing all their convicts in state jails or prisons under a contract with the state to keep them for a certain price. his counsel applied to the judges of the supreme court at chambers for a writ of _habeas corpus_ against the ohio jailer. he produced his prisoner and submitted a copy of the warrant of commitment from the district court. the public were extremely interested in the outcome of the proceedings. the attorney-general of the state assisted in presenting the petitioner's case. the governor was one of the multitude present in the crowded court room. the attorney-general declared that the position that the supreme court of the united states had the power to decide conclusively as to the constitutionality of the laws of the united states and so tie the hands of the state authority was untenable and monstrous. "georgia," he said, "hung graves and tassel over the writ of error of this same supreme court. god bless georgia for that valiant and beneficent example."[footnote: _ex parte_ bushnell, 9 ohio state reports, 150.] it was, he continued, "a sectional court composed of sectional men, judging sectional questions upon sectional influences."[footnote: _ibid._, 161.] of the five judges, three held that the constitutionality of the fugitive slave law was settled conclusively by repeated decisions of the supreme court of the united states, and that the state courts could not release the prisoner. chief justice swan gave the leading opinion. its positions were thoroughly distasteful to the people of ohio. he knew they would be. his term, which was one of five years, expired in the following february, and the vacancy was to be filled at the state election in october. on the day before the judgment was announced he told his wife that this would be fatal to his re-election. "if the law makes it your duty to give such an opinion," said she, "do it, whatever happens." he gave it, and what they anticipated occurred. the convention of his party declined to renominate him. he resigned his office immediately after the election and retired to private life at an age and under circumstances which made it impracticable for him to re-enter the bar with success, but with the consolation of knowing that he had acted right. chief justice day of iowa, one of the ablest men who ever sat on her supreme bench, in the same way lost a re-election by writing an opinion of the court, which announced a doctrine that was legal but unpopular.[footnote: koehler _v._ hill, 60 iowa reports, 543, 603.] his term was soon to expire. he, too, knew that this decision would prevent his renomination, and it did. in 1885, chief justice cooley of michigan, one of the great jurists and judges of the country, failed to secure a re-election to its supreme court, which he had adorned for twenty-one years, largely on account of an opinion which he had written supporting a large verdict against a detroit newspaper for libel. the newspaper, upon his renomination, described him as a railroad judge, and kept up a running fire through the campaign, which contributed materially to his defeat. political contests cost money, and if judges appear as candidates for popular suffrage they are naturally expected to contribute to the expense. the other candidates on the same ticket do this, and if those nominated for the bench did not, somebody would have to do it for them, thus bringing them under obligations that might have an unfortunate appearance, if not an unfortunate effect. in new york, where some of the judicial salaries are higher than anywhere else in the country, and the terms for the highest places are long (fourteen years), it has been customary for those placed in nomination to contribute a large sum to the campaign expenses of their party. this is tacitly understood to be a condition of their accepting the nomination, and the amount to be paid is fixed by party practice. for an original nomination by the party in power, it is said to be about equal to a year's salary; for a renomination half that sum may suffice. but a judge holding office by popular election must in any case owe something to somebody for supporting his candidacy. he is therefore under a natural inclination to use his power, so far as he properly can, in such a way as to show that he has not forgotten what his friends have done for him. there is always a certain amount of judicial patronage to be bestowed. there are clerks and messengers, trustees and receivers, referees and committees, perhaps public prosecuting attorneys and their assistants, to appoint. other things being equal, no one would blame a judge for naming a political friend for such a position. but as to whether other things are equal he is to decide. to the most upright and fearless man the danger of this is great; to a weak or bad man the feeling of personal obligation will be controlling. justice barnard of the supreme court of new york once observed on the bench that judges had considerable patronage to be disposed of at their discretion, and that for his part he had always succeeded in life by helping his friends and not his enemies. for this practice, among other things, he was impeached and removed from office; but how many judges are there who yield to this temptation without avowing it? a french critic of the elective judiciary has thus referred to these remarks of justice barnard: le juge barnard, qui formulait en plein tribunal cette dã©claration de principes, fut dã©crã©tã© d'accusation et condamnã©, non sans justes motifs. mais son crime impardonable ã©tait de proclamer trop franchement les doctrines de la magistrature ã©lective: il trahissait le secret professionnel.[footnote: duc de noailles, _cent ans de rã©publique aux etats-unis_, ii, 232.] most of the old thirteen states in their first constitutions provided that the judges of their highest courts should hold office during good behavior, or until seventy years of age. new york at first put the age of superannuation at sixty, but after losing by this the services of chancellor kent for some of his best and most fruitful years, postponed it to seventy. georgia was the first to set the fashion of short terms. her constitution of 1798 provided that the judges of her highest court should be "elected" for three years, but that those of her inferior courts should be "appointed" by the legislature and hold during good behavior. the legislature construed this as allowing it to frame such a scheme of election as it thought best, and that adopted was for the house to nominate three, from whom the senate elected one.[footnote: schouler, "constitutional studies," 65.] in all but three states (massachusetts, new hampshire and rhode island) at the present time all judges hold for a term of years, and as a general rule those of the higher courts have longer terms than those of the inferior ones. the change from life tenure to that for a term of years was partly due to several instances which occurred early in the nineteenth century, in which it was evident that judges had outlived their usefulness. judge pickering of the district court of new hampshire lost his reason, and to get rid of him it became necessary to go through the form of impeachment. in 1803, judge bradbury of the supreme judicial court of massachusetts, who had been incapacitated by paralysis, was displaced in the same way, though only a few months before his death. in 1822, an old man who was the chief judge of one of the judicial districts of maryland was presented by the grand jury as a "serious grievance," on account of his habitual absence from court. his physician certified that his life would be hazarded if he undertook to attend, but the natural answer was that then he should resign. at present, for judges of the state courts of last resort, the term in pennsylvania is twenty-one years (but with a prohibition of re-election); in maryland, fifteen; in new york, fourteen; in california, delaware, louisiana, virginia, and west virginia, twelve; in michigan, missouri, and wisconsin, ten; in colorado, illinois, and mississippi, nine. the general average is eight, although that particular number obtains in but seven states. in eighteen it is six. the shortest term is two, and is found in vermont. it may be noted that the original rule in vermont was to elect judges annually. as compared with the terms of office prescribed at the middle of the nineteenth century, those at the opening of the twentieth are on the average decidedly longer. * * * * * the compensation of most american judges is a fixed salary. in some states, courts of probate and insolvency, and in all justices of the peace when holding court, are paid by such fees as they may receive, at statutory rates, for business done. as in the case of sheriffs and clerks, judges under such a system sometimes receive a much larger official income than any one would venture to propose to give them were they to be paid for their services from the public treasury. a clerk of court often receives more than the judge, and some judges of probate and insolvency more than the chief justice of their state. in colonial times, judges were sometimes paid in part by fees, in part by occasional grants by the legislature, and in part by a regular stipend. this practice of legislative grants from time to time in addition to their salaries was continued in massachusetts in favor of the justices of the supreme judicial court for a quarter of a century, in the face of a constitution which provided that they "should have honourable salaries ascertained and established by standing laws."[footnote: memoir of chief justice parsons, 228.] it was evidently indefensible in principle, and to remove judges, as far as possible, from temptation either to court the favor or dread the displeasure of the legislature it is now generally provided in our american constitutions that their salaries shall be neither increased nor decreased during the term for which they may have been elected by any subsequent change of the law. in a few states it is thought sufficient to guard against the consequences of legislative disfavor, and the constitutions forbid only such a decrease of salary. the chief justice of the supreme court of the united states receives $13,000 a year and his associates $12,500. circuit judges have $7,000, and district judges $6,000. in the states, the chief judge of the new york court of appeals receives $10,500 and his associates $10,000. the same salaries are given in pennsylvania. in new jersey, the chancellor and the chief justice each receive $10,000 and the associate judges $9,000. in massachusetts, the chief justice receives $8,500 and his associates $8,000. in the other states less is paid, the average for associate judges in the highest courts being about $4,350. only nine states pay over $5,000. the chief justice in many receives $500 more. these salaries are, however, generally supplemented by a liberal allowance for expenses, and in some states each judge is provided with a clerk. in new york, this addition amounts to $3,700; in connecticut, to $1,500; in vermont, to $300. the salaries for the highest trial court generally closely approximate those paid to the judges of the supreme court, and in case of trial courts held in large cities are often greater. those for the inferior courts are much lower. the judges of the principal _nisi prius_ court (which is misnamed the supreme court) in new york city are allowed by law to accept additional compensation from the county, and receive from that source more than from the state, their total official income being $17,500. the trial judges in chicago also receive $10,000, although the highest appellate judges in the state have a salary of only $7,000. it is not surprising that american judicial salaries are no greater, but rather that they are so large. they are fixed by a legislature, the majority of the members of which are men of very moderate income, and when originally fixed in the older states it was often by men not altogether friendly to the judiciary. it was a saying of aaron burr, which was not wholly untrue in his day, that "every legislature in their treatment of the judiciary is a damned jacobin club."[footnote: "memoir of jeremiah mason," 186.] only the influence of the bar has carried through the successive increases which have been everywhere made. the first pension to a retired judge ever granted in the united states was one of $300 voted in kentucky in 1803. it was offered to one of the members of the court of appeals to induce him to resign, but the year after his resignation the statute was repealed on the ground that it was unconstitutional.[footnote: sumner, "life of andrew jackson," 120.] since 1869, the united states have allowed their judges who have reached the age of seventy, after not less than ten years' service, to retire, at their option, receiving the full official salary during the remainder of their lives. rhode island gives hers the same privilege after twenty-five years' service, and massachusetts and maryland have somewhat similar provisions, except that the judges on retirement receive but part of what they formerly did. the connecticut legislature is in the habit of appointing her judges, both of the supreme and superior court, when retired at the age of seventy, state referees for life, with an allowance of $2,500 for salary and expenses, their duties being to try such questions of fact as the courts may refer to them and to report their conclusions. our state constitutions now generally provide that judges shall hold no other public office. some also provide that all votes for any of them for any other than a judicial office shall be void. * * * * * occasionally a judge, in order to eke out his official income, accepts a salaried position, calling for but little of his time, in a matter of private business employment. this, however, is rarely done and there are obvious objections to it when the employer is one likely to have business before the court. many of the judges of the higher courts, including several of the justices of the supreme court of the united states, are professors or lecturers in law schools. the best mode of appointing judges is that which secures the best men. such men are unlikely to accept a place on the bench of one of the higher courts, unless it carries with it some prospect of permanence. it does, if it comes to them by way of promotion after they have served acceptably for a length of time in an inferior court. but most judges must be taken from the bar and, save in very unusual cases, will be in large and active practice. this must be totally abandoned if they take one of the higher judicial positions; and if they take the lowest, must be made secondary to it. a lawyer's practice is more easily lost than gathered. if it is a solid one, it is of slow growth. for one who has turned from the bar to the bench to expect on retirement from office to resume his old practice would be to expect the impossible. he may have achieved a position by his judicial work which will enable him to take a better position at the bar; but in that case his clients will be mainly new ones. he is more likely, particularly if no longer young, to sink into a meagre office practice and feel the pinch of narrow means, always doubly sharp to one who by force of circumstances has a certain social standing to maintain. the leaders at the bar therefore seldom consent to go upon the bench unless they have property enough to ensure their comfortable support after they leave it, without returning to the labors of the bar. this is one of those evils which carry in some sort their own antidote. the lawyers, as a body, are always anxious for their own sake to have an able and independent bench. they do not wish to trust their causes, when they come before a court of last resort for final disposition, to men of inferior capacity and standing. they therefore can generally be relied on to urge on the nominating or appointing power the selection of competent men. their influence in this respect is little short of controlling. if competent men will not ordinarily go on the bench of an appellate court, unless by way of promotion, until they have accumulated a sufficient fortune to make them comfortable in old age, then as competent men will usually, in one way or another, be selected, and as few of these are men who from their youth have been occupying judicial positions, the judges will usually be possessed of some independent means. a property qualification almost is thus imposed by circumstances on those forming the american judiciary in its highest places. the same thing is true of our higher diplomatic positions. as goethe has said, there is a dignity in gold. it is a poor kind of dignity when unsupported by merit, but if to gold merit be joined, each lends to the other solidity and power. among the men of the first eminence at the bar whom the meagerness of the salary has kept off the bench may be mentioned jeremiah mason, who declined the position of chief justice of new hampshire on this account, and william wirt. wirt in 1802 was made one of the chancellors of virginia at the age of twenty-nine. the salary and fees amounted to about five hundred pounds a year. he married on the strength of it, but in a few months found that his income was insufficient to maintain his family, and resigned.[footnote: "memoirs of william wirt," i, 91, 99.] dignity and power, however, are strong attractions. theophilus parsons in 1806 left a practice worth $10,000 a year--the largest in new england in his day--to take the place of chief justice of massachusetts on a salary of $2,500. after three years he sent in his resignation, saying that he found that this sum was insufficient for his support, even with the addition of the income from such property as he possessed. the legislature thereupon raised the salary to $3,500, and he remained on the bench through a long life.[footnote: "memoir of chief justice parsons," 194, 228, 230.] in 1891, richard w. greene of rhode island, who then had a practice of $8,000 a year, gave it up for the chief justiceship of the state, though the salary was then but $750, supplemented by some trifling fees. in a few years, however, he resigned the office on account of the inadequacy of the compensation.[footnote: payne, "reminiscences of the rhode island bar," 75.] the qualities of a judge are by no means the qualities of a politician. the faculty of looking at both sides of a question and the power of forming deliberate and well-considered judgments do not tell for much in a campaign speech. the politician's title to support is standing by his friends. the judge's duty may be to decide a cause against his friends. many a lawyer of eminence might accept a nomination from a president or governor involving no participation in a political election contest who would refuse one from a party convention. the general sentiment of thinking men in the united states is that judges should never be chosen by popular vote. it is, however, an unpopular sentiment. the people in general do not appreciate the difference between their fitness to select political rulers and to select judicial rulers--to choose out good men and to choose out good lawyers. and the people make and ought to make our constitutions. rufus choate once said that the question at bottom was, are you afraid to trust the people? if you answer yes, then they cry out that "he blasphemeth." if you answer no, they naturally reply, then let them elect their judges. jefferson was the first to suggest an elective judiciary, basing his opinion on a misconception of the usage in connecticut. there, he wrote, the judges had been chosen by the people every six months for nearly two centuries, yet with few changes on the bench, "so powerful is the curb of incessant responsibility."[footnote: works, vii, 9, 12, 13, 35; letter of july 12, 1816, regarding a new constitution for virginia.] in fact, the connecticut judges were chosen annually, and those not holding judicial powers as an incident of political ones were appointed by the legislature. the experiment of resorting to popular election was first fully tried in mississippi in 1832, under the influence of governor henry t. foote, but in later life he expressed his regret at the course which he had taken, and the belief that it had weakened the character of the bench.[footnote: "casket of reminiscenses," 348.] the scheme of popular election may be pursued with reasonable success if the bar use all the influence at their command to secure both good nominations originally and the re-election of all who have served well.[footnote: it is not uncommon for local bar associations after the party nominations for the bench have been made to refer them to a committee, on the report of which those deemed the best are commended for popular approval. in two judicial districts in iowa, the lawyers nominate judges for the district in a convention of delegates from the bar, and then see to it that the nominations are ratified by the party conventions. simon fleischmann, "the influence of the bar in the selection of judges," report of 28th annual meeting of the new york state bar association (1905).] a conspicuous instance of its success under such conditions is shown by the repeated re-election of judge joseph e. gary of the criminal court of the city of chicago. originally elected in 1863, when it was called the recorder's court, he has been re-elected for successive terms of six years without a break, and in 1903, when he was 82 years old and still in active service on the bench, received well-merited addresses of congratulation from the chicago law institute and the chicago bar association. judges of probate, whose functions are largely of a business character, and who are brought into close contact with the people at first hand, are frequently re-elected for a long period of years with little regard to their party affiliations.[footnote: in the probate district of hartford in connecticut there have been but two judges during the last forty years, though the elections have been annual or biennial.] in case of those having long terms of office, a re-election comes more easily and commonly. a man who has been ten or twenty years upon the bench has become set apart from the community. the people have ceased to think of him as one of themselves, so far as the active political and business life of the day is concerned. his position and his work, if it has been good, have given him a certain elevation of station. men have learned to trust him, and to feel that his presence on the court helps to make liberty and property more secure. if he receives his party nomination, he is apt to secure a majority of votes, whether the others on the ticket are or are not elected. the opposing party often nominates him also, and sometimes, if his own gives the nomination to another, nominates him itself, and with success. in new york it has been generally the case that a good judge of the court of appeals or supreme court is re-elected until he reaches the age limit set by the constitution. to accomplish this, however, it has been necessary for the bar to use constant efforts to bring the nominating conventions of both parties to the support of the same man or men, and personal ambition and party feeling have on a number of occasions set up an effectual bar. before a recent election of two judges in that state, in preparation for which a scheme had been suggested by which one of the outgoing judges of each party should be re-elected, a third candidate for the succession, himself a prominent member of the bar and an officer of the state, published a lengthy statement of his claims, which concluded thus: "i am a candidate for nomination to the office of associate judge of the court of appeals at the coming democratic state convention. i appeal to my fellow-citizens for their support. while i do not believe that support for judicial candidacy should be unduly importuned, i feel that the present circumstances justify me in making this announcement. i have always stood by my party in its dark days, when others voted the republican ticket in the interest of their business. i have assisted in endeavors to so shape its policies as to make success possible. now that this has been accomplished, i do not think that my fellow-democrats will thrust me aside to make way for those who neither affiliate with the party nor vote its ticket." as a general rule, in the country at large political considerations are decisive, both in cases of popular election and of executive nomination, but as to the latter exceptions are more frequent. one instance has occurred in which a president of the united states nominated to the supreme court a member of the party in opposition to the administration,[footnote: howell e. jackson, a democrat, was thus appointed by president harrison, a republican, in 1893. president taft, a republican, has since appointed two democrats, justices lurton and lamar, and made a third chief justice.] and the same president, upon the creation of the circuit court of appeals, when there were a number of new judges to be appointed, gave several of the places to those not of his political faith. it is, however, to be expected that the presidents of the united states, as a general rule, will place upon the supreme court none whose political opinions are not similar to their own. it is a court wielding too great a political power to allow this ground of qualification to be lightly passed over. precisely because of this, the political antecedents of the justices of the supreme court are more apt to be discoverable in their opinions than is the case in state courts. professor william g. sumner, in referring to the change of character of the supreme court by reason of jackson's appointments to it, remarks with some truth that "the effect of political appointments to the bench is always traceable after two or three years in the reports, which come to read like a collection of old stump speeches."[footnote: "life of andrew jackson," 363.] in states where the judges are only appointed for a certain term of years, it is not unusual for the governor, if he has the power of nomination, to exercise it in favor of outgoing judges who are his political opponents. so, also, if there happen to be several original vacancies to fill, it is the traditional method in a few states to give one of the places to a member of the opposition party. if the election belongs to the legislature, a similar practice prevails in some of the older states. in connecticut but six instances of refusing a re-election to judges of the higher courts for mere party reasons have occurred for more than a hundred years.[footnote: judges baldwin, goddard, gould and trumbull were dropped in 1818 and 1819 as an incident of the political revolution which destroyed the federalist party in connecticut and brought about the adoption of a constitution, under which the judges were to hold for life, to replace the royal charter. judges seymour and waldo were dropped in 1863 during the civil war, because they were classed with the "peace democrats." their successors, however, were appointed from the "war democrats," though the legislature was republican.] in vermont, where elections to the supreme court were annual, judge redfield was placed on the supreme bench and then re-elected year after year for twenty-three successive years by legislatures controlled by the party politically opposed to him.[footnote: edward j. phelps, "orations and essays," 220.] in a few states it is not customary for his party to renominate a judge more than once. two terms are considered enough for one man, and when he has served them he should make room for some one else. many a judge has thus been taken from the bench at a time when, with the aid of experience, he was doing his best work. appointments to appellate courts are generally provided for by a scheme calculated to prevent any sudden and general changes of membership. not more than one or two receive an appointment in any one year, so that the terms of not more than one or two can expire at the same time. where judges hold for life or--as is frequently the case--if there is a constitutional provision that no judge shall hold office after reaching the age of seventy, the vacancies will, of course, occur and be filled at irregular intervals. all this, in connection with the natural tendency to reappoint judges who have earned the public confidence, secures to the court a certain continuity of existence and consistency of view. in every court of last resort in the older states there will be apt to be found some who have served ten or twenty years and were at first associated with those who had themselves then served as long. it is not easy to "pack" a court thus constituted. if, however, some question of supreme political importance is looming up, likely soon to become the subject of litigation, the nominating or appointing power is not likely to be insensible of the party advantages that may result from its decision in a particular way by the highest judicial authority, nor of the importance of the vote to be cast by each who may share in its administration. during the civil war congress passed a conscription law. the supreme court of pennsylvania pronounced it unconstitutional, and advised the issue of a temporary injunction to prevent its enforcement by the officials charged with that function. the term of the chief justice was about to expire. the decision had been made by three judges, of whom he was one, against two who dissented. the political party to which he belonged renominated him, but he was defeated at the polls. a motion was soon afterwards made to dissolve the injunction. his successor joined with the former minority in advising that the motion be granted, and on the ground that the act of congress was not unconstitutional. the two remaining members of the court adhered to their former opinion.[footnote: kneedler _v._ lane, 45 penn. state reports, 238. see this case reviewed in pomeroy, "introduction to the constitutional law of the united states," sec. 479.] in some states the justices of the supreme court select one of their number annually to be chief justice for the year ensuing. in several, whenever there is a vacancy, the office falls, as of course, to the justice who has the shortest time to serve. this is a ready way to pass a title about and attach it to as many men as possible in quick succession. its ostensible defense is that there can be no unfair discrimination and favoritism in such an appointment, and that as the judge whose term has most nearly elapsed will naturally be the one who has served the longest, he will certainly have the advantages of experience. these considerations deserve little weight in view of the sacrifices that such a scheme entails. unfair discrimination is indeed prevented, but so is a just and proper discrimination. the plan of promoting the senior associate justice when a vacancy occurs is liable to similar objections, though in less degree. he is at least not unlikely to serve for a considerable time. to be a good chief justice requires special gifts. whoever holds that office should have not only learning and ability, but patience and courtesy in a high degree. he must be methodical in the transaction of business, if the docket of the court is a large one. he should have the art of presiding over its public sessions and disposing of the minor motions which may be made from the bar with dignity and tact. he should be a man who commonly carries his associates with him at its private consultations in support of any doctrine which he is firmly convinced to be the law applicable to the case in hand. he should have the faculty of conciliation. he should know when to yield as well as to insist, in order to secure the best results for his court and for his state. he should be able to write a clear and forcible opinion. the best lawyer in the jurisdiction who may be supposed to have these qualities and will accept the position ought to be at the head of its judiciary. many have been tempted from the bar by an offer of that place who would have refused the appointment of associate justice. john marshall was one of these. chief justice parsons of massachusetts was another. in the supreme court of the united states no chief justice has ever been appointed from among the associate justices, although a nomination was offered to and declined by mr. justice cushing in 1796. in the state courts the general practice is to the contrary, and it is common to fill a vacancy by appointing one of the associate justices. popular election and life tenure cannot well go together. the chance of an irremediable mistake is too great. judicial nominations are often the mere incident of the prevalence in a party convention of one faction of the delegates, whose main object is to control the nominations for other positions. american experience seems to indicate life tenure and executive nomination, with some suitable provision for securing retirement at a certain age, as likely to secure the best judges of the higher courts. this has worked well for the united states, and no state courts have stood higher in the general opinion of the bar than those thus organized. for the lower courts there is less necessity and less chance for getting men of the first rank in attainments and character. shorter terms of office can therefore reasonably be prescribed, and the objections to popular election are correspondingly less. even as to them, however, the plan of executive nomination is safer than that of party nomination. a man acts carefully when he is the only one whom the public can hold responsible for what is done. it is customary to provide that vacancies in judicial offices can be temporarily filled by the executive until there is an opportunity for a new appointment or election by the proper authority. the place of a judge who is absent or disqualified is in some states, by authority of a statute or agreement of the parties, occasionally taken by a member of the bar called in to try a particular cause or hold a particular term of court.[footnote: see alabama code of 1896, sec. 3838; reporter's note to kellogg _v._ brown, 32 connecticut reports, 112.] so the english assize judges are constituted by special commissions for each circuit, which include also the barristers on the circuit who are sergeants at law, king's counsel, or holders of patents of precedence. it is hard to dislodge a judge for misconduct or inefficiency. our constitutions give remedies by impeachment or by removal by the governor on address of the legislature, but lengthy proceedings are generally necessary to obtain the benefit of them, and the decision is often in favor of the judge. party feeling is apt to have its influence in such matters. whether it does or does not, it is an unpleasant task to assume the initiative. those who best know the facts are the lawyers, and if some of them are the ones to move, it is at the risk, should they fail, of having afterwards to conduct causes in a court presided over by one who is not likely to regard them with a friendly eye. the number of judicial impeachments in the history of the country has been comparatively small, and few of these have resulted in convictions.[footnote: see chap. iii.] of the cases which were successful, the most noteworthy is that of justice george g. barnard of the supreme court of new york, who was convicted of having abused his right to issue _ex parte_ orders and of other measures of improper favoritism. the bar association of the city of new york brought the charges, and were influential in carrying the whole proceeding through to a favorable result. in another instance, occurring in 1854 in massachusetts, the right of impeachment was stretched to its limit by removing a judge of probate, edward g. loring, the only real ground being that as a united states commissioner he had ordered the return of a fugitive slave under the laws of the united states--laws the constitutionality of which the highest court of the state had recently declared to be fully settled.[footnote: sims' case, 7 cushing's reports, 285.] judges of inferior courts are sometimes removable by the higher ones for cause, on complaint of a public prosecutor. in such case, the proceeding being strictly a judicial one, there is more assurance of success if the charges are well founded. here also, however, it will be known from whom they come, and the hearings are likely to be so protracted and expensive to the state that only a flagrant case will usually be taken up. the hearings on such a complaint, brought in new york in 1903, extended over thirty-six days; the stenographic minutes of the testimony covered over 3,300 pages; there were over four hundred exhibits introduced; and the items of cost presented for taxation amounted to over $20,000. removals by the governor on the address of the legislature have been more frequent, and occasionally have been dictated largely by party managers who desired to make places for those of their own political faith.[footnote: schouler, "constitutional studies," 288, note.] in one instance it was attempted, but unsuccessfully, in kentucky as a punishment for giving a judicial opinion that a stay-law recently passed by the legislature was unconstitutional. a two-thirds vote of each house was required, and as in the lower house, though it voted for an address by a large majority, this could not be obtained, the proceeding was allowed to drop.[footnote: niles' register, xxii, 266. see _ante_ p. 114.] in all there have been in the whole country since 1776 not over thirty removals, whether on impeachment and conviction or on address of the two houses, of judges of a higher grade than justices of the peace.[footnote: see foster, "commentaries on the constitution of the united states," appendix, 633.] wholesale removals have also, in rare instances, been effected for similar purposes by abolishing courts, the judges of which held during good behavior.[footnote: see chap. vii.] maryland was the first to do this, abolishing a court and re-establishing it at the same session, almost in the words of the former law. congress followed in 1802 by repealing the statute of the year before by which a new scheme of circuit courts was arranged and under which sixteen federalists had been appointed to the bench. massachusetts did the same thing in 1811 with respect to her courts of common pleas.[footnote: see chap. viii.] the occurrence of vacancies has sometimes been prevented in a similar manner when the nominating or appointing authority was politically opposed to the legislature. the existence of a supreme court is required by all our constitutions, but the number of the judges is frequently left to be fixed from time to time by statute. the federalists, when they were about to go out of power, provided that the supreme court of the united states should on the next vacancy be reduced from six to five, thus seeking to prevent jefferson from filling such vacancy. by 1863 the number had been raised to ten, but three years later, when a democratic president was contending with a republican congress, it was enacted that as vacancies might occur it should be reduced to seven. in 1869, when a republican president had come in, the number was restored to nine, and the new justice for whom a place was thus made shortly joined in reversing a decision made by the court not long before and quite unsatisfactory to the majority in congress on an important constitutional point. similar legislation, for like reasons, has been had in many of the states. * * * * * chapter xxiii the character of the bar and its relations to the bench every lawyer is an officer of the court as fully as is the judge or the clerk. he has, indeed, a longer term of office than is generally accorded to them, for he holds his position for life, or during good behavior. courts could not exist under the american system without lawyers to stand between litigants and the judge or jury. it is a system that requires written pleadings, originally very artificial in form and still somewhat so. it imposes many limitations on the introduction of evidence, which often seem to shut out what ought to be admitted, and rest on reasons not apparent to any who have not been specially instructed in legal history. it divides the decision of a cause between judge and jury in a manner only to be understood after a long and close study. it gives a defeated party a right of review dependent on a number of technical rules, and to be availed of only by those who are skilled in the preparation of law papers of a peculiar kind. a class of men has therefore been set apart to keep the people from direct approach to the bench, except when they may desire to argue their own cases, which rarely occurs. in england there are two such barriers, the class of barristers and the class of attorneys. the attorneys keep the people from access to the barristers; the barristers keep the attorneys from access to the court. the attorney prepares the case, represents his client in the proceedings preliminary to the trial, and assists the barrister whom he may retain at the trial, but cannot examine a witness or argue the cause. in america we do not thus divide lawyers into two classes. there are many of them who never in fact address the court, but it is not because they have not a legal right to do so. every member of the bar of any court has all the legal rights of any other member of it. the qualifications for admission to the bar are generally left to be regulated by the courts. in a few states they are fixed by constitutional or statutory provisions. in all, when the constitutions do not regulate it, the legislature can. it has indeed been asserted that the admission of attorneys is in its nature a matter for the courts only.[footnote: see _american law school review_, i, 211.] english history does not support this contention.[footnote: pollock & maitland, "history of english law," i, 211-217; ii, 226. o'brien's petition, 79 connecticut reports, 46; 63 atlantic reporter, 777.] the inns of court, which are mere voluntary associations of lawyers, have from time immemorial exercised the function of calling to the bar, so far as barristers are concerned, and the admission of attorneys has always been regulated by acts of parliament.[footnote: see in the matter of cooper, 22 n. y. reports, 67, 90.] by our american legislatures the same course has been generally pursued. the duty of ascertaining whether candidates for admission have the prescribed qualifications is occasionally performed by the judges in person; more often by a committee of the bar appointed by the court for that purpose; in some states by a standing board of state examiners, receiving compensation for their services.[footnote: this comes from fees paid by those examined.] the latter method was introduced in the latter part of the nineteenth century and is steadily gaining in favor. a committee of a local bar is unavoidably subject to some local influences or prepossessions. a state board can act with greater independence and maintain with more ease a high standard of admission. in early colonial days the legislature sometimes set a limit to the number of attorneys who could be allowed to practice before the courts. in some colonies the number at the bar of a particular court was fixed; in others the number of lawyers in each county.[footnote: acts and laws of the colony of conn., may session, 1730, chap. liv. hunt, "life of edward livingston," 48.] no such limitation now exists in any state, and the matter is left to be regulated by the law of supply and demand. this by the census of 1900 required over 114,000. the freer a country is, and the quicker its step in the march of civilization, the more lawyers it will naturally have. the growth and importance of the bar are stunted wherever it is overshadowed by an hereditary aristocracy. a land of absolutism and stagnation has no use for lawyers. the institutions of china would not be safe if she had a bar. lawyers are a conservative force in a free country; an upheaving force under a despotic government. in russia one is found enough to serve over thirty thousand; in the united states there is about one to every six hundred and sixty of the population,[footnote: in 1870, there was one to every 946; in 1880, one to every 782.] and in england one to every eleven hundred. the colonial lawyers of the seventeenth and eighteenth centuries occupied an inferior place in the community as compared with that now held by the legal profession. there was comparatively little opportunity to rise to eminence. the positions on the bench, as has been seen, were largely held by those not trained as lawyers. before such judges it was a waste of words to make elaborate arguments on points of law. among the first settlers were a few who had been educated for the english bar. one of them, in massachusetts, rev. nathaniel ward, drafted the _magna charta_ or "body of liberties" of that colony, adopted in 1641. his opinion of the need of lawyers may be inferred from the fact that it provided expressly that those who pleaded causes for others should receive no compensation for it. virginia adopted the same policy from 1645 to 1662. later, lawyers practicing in massachusetts were excluded from the general court. as that had large judicial powers, it was thought fitting to give no opportunity to any to sit there to-day to judge and to appear to-morrow before an inferior court to argue as an advocate.[footnote: hutchinson, "history of massachusetts," iii, 104.] as time went on, an american was occasionally sent to london to read law. he was apt to be a young man of fortune, who entered the temple or the inns of court more as a means of gaining pleasant acquaintances than for any serious purpose of education. most of them came from pennsylvania and the southern colonies. two presidents of the continental congress, randolph and mckean, four signers of the declaration of independence, heyward, lynch, middleton, edward rutledge, and john rutledge, one of the first associate justices of the supreme court of the united states, were of the number. not infrequently there were legal proceedings in london which concerned colonial interests. their charters were attacked or colony laws and judgments put in question before the lords of trade and plantations. in such proceedings, if counsel were needed, english barristers were generally employed. an american lawyer now and then went over to consult with them and perhaps to join in the argument, but the leading part was theirs. it was not until the quickening and deepening of american life which preceded and portended the revolution that anything like a colonial bar, led by a man of learning and position, really came into existence.[footnote: "two centuries' growth of american law," 16.] from the middle of the eighteenth century to its close there was a steady and rapid progress in this direction. legal education was taken seriously. in the case of many it began with the fundamental notions of justice and right. the greek and latin classics on those heads were read.[footnote: "life of peter van schaick," 9.] the private law of the romans was studied to a greater extent relatively than it is now. the first chair of law in the united states was established at william and mary college in 1779, and there, under chancellor wythe, john marshall was a student. president stiles of yale, in his "literary diary," so full of that kind of historical incident which after a few years have passed it is most difficult to trace, enumerates the books read by his son, ezra stiles, jr., between 1778 and 1781, in preparation for the connecticut bar, under the advice and in the offices of judge parker of portsmouth and charles chauncey of new haven. they comprehended, besides much in english and scotch law, burlamaqui's _principes de droit naturel_, montesquieu, _de l'esprit des lois_, the institutes of justinian, certain titles of the pandects, and puffendorf _de officio hominis et civis juxta legem naturalem_. james kent at about the same time was reading grotius and puffendorf in the office of the attorney-general of new york, and edward livingston, under chancellor lansing, explored all parts of the _corpus juris civilis_.[footnote: hunt, "life of edward livingston," 41.] john quincy adams a few years later, under the instruction of chief justice parsons of massachusetts, took up vattel and the institutes of justinian.[footnote: report of the american bar association for 1903, 675, note.] the latter, as well as van muyden's _compendiosa tractatio_ of them, his father had studied in his preparation for the bar thirty years before.[footnote: "life and works of john adams," i, 46.] the lectures of chancellor wythe at william and mary, like those of mr. justice wilson in 1790 at the university of pennsylvania and of chancellor kent in 1794 at columbia, were designed, as were blackstone's at oxford, to give such information as to the nature and principles of law as might be of service to any one desirous of acquiring a liberal education. such instruction could not be considered as anything approaching a proper preparation for entering on the practice of the legal profession. the united states preceded england in the endeavor to provide such a preparation by a systematic course of study pursued under competent teachers at a seat of learning established for that sole purpose. the need of something of the kind was felt to be pressing after the independence of the united states had been fully established. an unusual number of young men of promise were turning from the army to the bar.[footnote: "memoirs of james kent," 31. in 1788, the number of attorneys in the state of new york had risen to 120. morse's "american geography," ed. 1796, 506. thirty years later it was 1,200. miles' "register," xiv, 311.] those already members of it had educated themselves as best they could, with slight assistance from the lawyers in whose offices they had studied. they in turn were indisposed to do more for such as might desire to read law in their offices. few of them were competent to do much.[footnote: see "life of peter van schaick," 9, 13.] there was a demand for a professed school of law, and in 1784 the first in any english-speaking country was opened at litchfield, connecticut. there are now 104 of them,[footnote: report of the american bar association for 1903, p. 398.] with a total attendance of over fourteen thousand students. the course of study in a few may be completed in one year; in most two are required; in the rest three, with perhaps an offer of a fourth for advanced instruction leading to the degree of master or doctor of laws. the ordinary degree is that of bachelor of laws (ll.b.). the american bar association has had an important influence from its first organization, in 1877, in prolonging the period and raising the standards of legal education. in affiliation with it there is an "association of american law schools," representing a large majority of the teachers and students engaged in law school work. this admits no institution into its ranks at which students are received without a preliminary education at least equal to that given by the ordinary high school. a few of the schools so associated receive no student, save in exceptional cases, unless he already holds a degree in arts, science, philosophy, or letters from some collegiate institution. in several of the states having boards of state examiners no one is admitted to the final examination before them who did not prior to the beginning of his education receive one of the degrees above indicated or else pass a special examination before the same board on certain prescribed studies, corresponding substantially with those ordinarily pursued in a high school. some proof is everywhere required that an applicant for admission to the bar possesses a good moral character. it is necessarily largely a matter of form. certificates are sometimes required from those familiar with his previous life, and sometimes the mere motion for his admission by a member of the bar representing the examining committee is accepted as sufficiently implying that no unworthy person would be thus presented. in a few states a distinction is made between attorneys with reference to the courts in which they may practice. when first admitted it is to the bar of the trial courts. later, after a few years of experience, they can be admitted on further examination to practice also in the highest courts of the state. this distinction reaches back, in new jersey, to the colonial era. attorneys were there a different class from "counsellors," and, following the english practice, the style of "sergeant" was also formerly bestowed on leaders at the bar. the last lawyer bearing the title survived until nearly the middle of the nineteenth century. in this state the governor has always issued the licenses or commissions to attorneys and solicitors in chancery, but for more than a hundred and fifty years only on the recommendation of the supreme court.[footnote: _in re_ branch, 70 n. j. law reports; 57 atlantic reporter, 431.] the admission of attorneys in the several courts of the united states is determined by rules which they respectively establish from time to time. these rules make the only qualification membership in regular standing for a certain period of time in the bar of a state and good moral character. there is no doubt that the united states have been in advance of england both in providing means of legal education and in requiring their use. the length of the course of study now established at our older law schools--three years--seems all that can reasonably be exacted, if a proper foundation of general discipline and knowledge has been previously laid. the first provision for one or more years of graduate study for those who may desire it was made at yale university in 1876, and a similar opportunity has since been offered at several others; but it has been availed of by few, and of these a considerable part had in view the teaching of law as their ultimate vocation rather than its practice. unquestionably the american bar is now, as a whole, a far better trained class of men than it was twenty or thirty years ago, and the efficiency of the courts has been correspondingly increased. * * * * * members of the bar are always subject to punishment by the court for official misconduct. this may be by censure, temporary suspension from practice, or disbarment. if guilty of contempt of court, they can also be sentenced to fine or imprisonment.[footnote: see chap. xx.] as suspension or disbarment means a loss, temporary or permanent, of a livelihood, it is only ordered in aggravated cases and after an opportunity for a formal hearing. disbarment cannot be decreed by the legislative department. that would be virtually an act of attainder. it must come from a judicial sentence.[footnote: _ex parte_ garland, 4 wallace's reports, 333, 378.] in some states the principal trial court, which is the one by order of which attorneys generally are admitted to the bar, appoints a standing committee on grievances. in others such committees are created by bar associations, of which almost every state has one for the whole state, while several have also one or more local associations. it is the duty of such a committee to inquire into any instances of professional misconduct that may be brought to their notice and either institute proceedings for a hearing before themselves or bring the matter to the attention of the court, so that they may be instituted there by its order and conducted by the public prosecutor. in the larger states, several inquiries of this nature are ordinarily set on foot every year, which result in suspension or disbarment. in the smaller states they are rare, both because they have smaller bars and because the smaller a bar is the more difficult is it for any one of its number to hide any misdoing from the rest. the bar associations, which first began to start up soon after the civil war, have been of great service in upholding the honor of the profession. their constitutions generally name this particularly as among their professed objects. one state[footnote: alabama] has recently under such influences, passed a statute making it a misdemeanor for an attorney to send out "runners" to solicit practice, and requiring the public prosecuting officer to institute proceedings for any violation of the law, upon the complaint of the council of the state bar association. the steadily and rapidly increasing proportion of lawyers to the population in the united states necessarily tends to a lowering of their average professional income, and this tendency is not fully overcome by the increase of the wealth and business of the country. the principle of the concentration of industry also works against the great majority of them. searching titles to real estate, for instance, was until the last half of the nineteenth century part of the business of every lawyer. it is now in the larger cities monopolized by certain firms or corporations, who own copies or abstracts of the public records, laboriously prepared, which give them special facilities for doing the work rapidly and well. so collecting uncontested debts was formerly the staple of many a lawyer's practice. the general abolition of imprisonment for debt about the middle of the nineteenth century rendered the process much more difficult and the fees less, and of late years great collection agencies, generally corporations, have sprung up, with an extensive system of correspondents among members of the bar, by whom most suits of such a nature are now brought under an agreement to divide their fees with the central bureau. until the last half of the nineteenth century there were probably no lawyers in this country whose average net income from year to year was equal to that of the leaders of the english bar. in 1806 there was but one lawyer in new england with an annual professional income of $10,000: until about 1860 there was none in connecticut, and probably not over a hundred in the entire country.[footnote: parton, "life of aaron burr." 153; great american lawyers, iii, 55.] in 1827, william wirt was informed by justice thompson of the supreme court of the united states that "six, eight, and ten thousand dollars is considered great practice in new york and ten thousand dollars the _maximum_."[footnote: kennedy, "memoirs of william wirt," ii, 209.] thirty years later the same was true, except that twenty thousand dollars had then become the highest annual average, and that but of a very few.[footnote: parton, "life of aaron burr," 153.] daniel webster earned from $12,000 to $20,000 when at the height of his career.[footnote: harvey, "reminiscences of daniel webster," 84.] the civil war was the occasion of many important business enterprises, and gave rise to much litigation. it brought also a great increase of wealth to the north and west, and new and greater investments of northern capital in the south. from that time the business of the leading lawyers in every state became more remunerative. incomes of $20,000 and $25,000 were occasionally earned in the smaller states, and of four or five times as much in the larger ones. the american lawyer of the eighteenth century was apt to have his office in his house. during the nineteenth century this became less and less common and is now comparatively rare. in cities certain streets, generally near the court-house, are crowded with lawyers' offices. these are generally over business stores, but in some places residential streets have been converted to this use, and what was formerly a handsome mansion will have the chambers of counsel on every floor. in many of the counties in virginia chambers for the accommodation of the lawyers are built in the rear of the court-house on public ground. a small rent is paid by the occupants to the county. when court is about to open each day the crier calls out from one of the court-house windows the name of each lawyer to notify him of the fact. the relations of the bar to the bench assume a peculiar character under the conditions of american society. the judges stand closer to the lawyers in this country than in any other. all of them, unlike those of continental europe, have been themselves practicing lawyers. the majority, unlike those of england, are young men, sitting in minor courts, who have generally left the bar for but a brief period, expecting, if not desiring, soon to return to it. not a few hold court but one or two days in the week or one or two hours in the day, and for the rest of the time are actively engaged in professional practice before other courts. those of the latter description always occupy a somewhat unfortunate position. the state does not expect them to devote themselves entirely to its service. it does not provide for their compensation on that basis. it expects them to continue the general practice of their profession, except so far as their judicial duties may necessarily prevent. they certainly cannot practice in their own court with propriety. statutes to prevent it are not uncommon. for the same man to charge the jury one day as judge and address them the next in argument as counsel must tend to confuse their notions as to the weight they should give to what he says, and to lend it often a weight which it may not deserve. so, too, his relations to the clerk and other court officers are such officially as to give him opportunities for influencing them when he is engaged at the bar, not shared by his brother lawyers.[footnote: french _v._ waterbury, 72 conn. reports, 435; 44 atlantic reporter, 740.] there are, however, in every state quite a number of judges of higher courts who receive a salary deemed sufficient for their support and who are expected to devote their entire time to judicial duties. as respects those of the united states courts there is a statute (u. s. revised statutes, sec. 713) making it criminal for them to practice law. similar legislation exists in some of the states with regard to the judges of their higher courts, but without it a sense of propriety dictates their abstaining from it, and it has even been held that the right of any judge of a superior trial court of general jurisdiction over important causes to act as an attorney or counsellor, except in his own cause, is suspended by implication of law so long as he retains his seat on the bench.[footnote: perry _v._ bush, 45 florida reports; 35 southern reporter, 225.] the demeanor of the judges to the bar is inevitably affected to some extent by their tenure of office. if they hold their places for life, they naturally are less sedulous to avoid giving offense and less ready to tolerate a poor or tedious argument. a greater distance is maintained for this cause between bench and bar in the federal courts than is usual in most of the state courts. no judge, however, desires to have the reputation of being overbearing, rough or impatient, and few are. chief justice parsons of massachusetts at one time fell into an inveterate habit on the circuit of checking counsel in argument rather curtly when they seemed to him to wander from the vital point. the leaders of the bar of boston finally determined to stop it, and arranged at the next term at which he was to preside that whoever of them was thus treated should leave the court room. the first to address the court was checked in the usual manner, and observing that he regretted his argument seemed not worthy of the court's attention, took his papers and went out. the next met the same kind of interruption in the same way, and so on until the court room was cleared. the chief justice afterwards sought an explanation, received it in good part, and was forever cured of what had been a serious impediment to his usefulness on the bench.[footnote: see george f. hoar, autobiography, ii, 397.] occasionally a trial judge will have a similar lesson taught him by finding no business to be disposed of when he opens court, and learning later that the bar agreed to the continuance of all pending cases, because they did not care to trust him with them, or were disinclined to submit to his manner of conducting a hearing. judges are universally desirous of securing the good opinion of the bar as respects their knowledge of law and powers of discrimination and analysis. the bar is their little world. it is a critical world, for in every case that is tried there will be one lawyer who is dissatisfied with the result, and likely to think the judge wrong rather than himself, if every proposition of law which he has asserted has not been conceded. it is much more common for american judges to be too tolerant of a waste of time by counsel than to be too impatient at it.[footnote: see a striking instance of this tendency given in cleveland, painesville & eastern r. r. co. _v._ pritschau, 69 ohio state reports, 438; 69 eastern reporter, 663.] they dislike even to seem harsh. most of them also hold office only for a term of years and do not forget that undue severity may jeopardize their re-election. this is one reason for the fact that at all points the bar are subject to fewer restrictions upon their conduct in the trial of causes in american courts than in those of most other countries. another, and a more fundamental one, is that the judges and lawyers stand more nearly on the same level both in public regard and official position. the lawyer holds a more permanent office in the court than the judge. he is quite likely to be his superior in learning and ability. he belongs to a class that is influential in the community, and whose members usually share quite actively in the direction of party politics. the judge in most instances holds but a brief authority. he does not wish to parade it in such a manner as might seem offensive. he is in danger of seeming to parade it if he goes beyond what is necessary in regulating the conduct of the lawyers who may appear before him. the judge who keeps a rigid watch on the examination of witnesses to exclude all improper testimony, whether objection be made to it or not, declines to hear argument on matters that may appear to him too clear to justify it, and is impatient when argument on doubtful points is continued longer than he thinks worth while, may be respected, but he will never be popular. trials for these reasons are longer in the united states than in england. fewer summary rulings are made. more questionable evidence is admitted. more time is allowed to counsel in the argument of the cause, and more freedom in arguing points that may seem immaterial to the court. the broad liberty of appeal generally allowed is another reason for hesitation on the part of trial judges to interfere more than seems absolutely necessary with the management of a cause by counsel. it is not merely the legal right of appeal but the practice under it which is a peculiar feature of our judicial system. a foreign lawyer often hesitates to cross swords with the judge. he distrusts his own judgment if it differs from that of the court. he defers to the opinion of the bench, not only as stating the law of the case, but as probably stating the law of the land. he therefore seldom appeals on minor points of procedure, even if he could. in the united states probably one case in ten of all that go to trial is carried up for review on points of law; many of them mere matters of practice not affecting the merits of the cause. the american lawyer can also safely speak with freedom of the conduct of the government or of high officials should it come in question. those in any court, high or low, who hope for a reappointment know that the best way to obtain it is to secure the good will of the bar. the reputation of a judge depends on the opinion which the lawyers have of him. the general public may be deceived as to his character, ability and attainments; the bar cannot be. in the public sessions of court there are few judges who are not impressed with the necessity of maintaining the dignity of their position as representing the power of the state. the lawyers recognize this feeling as just. it is common for them to rise as a body when the judge enters the bench. they find no difficulty in using the conventional style of address of "may it please the court," or "may it please your honor." when a ruling is made in the course of a trial the lawyer, whose client is adversely affected by it, accepts it without further discussion, simply reserving his exception, if he have one, for purposes of review in a higher court. if, in addressing the jury, counsel exceed the bounds of professional license in commenting on testimony or alluding to the character of the parties, the court will check them without hesitation. less outward respect was shown toward the courts by the bar in former times than now, and it often received less courtesy of treatment from the bench. an incident occurring in massachusetts about the beginning of the nineteenth century may serve as an illustration. robert treat paine, a signer of the declaration of independence, resigned his seat on the bench of the supreme judicial court in 1804, at the age of seventy, largely on account of deafness. naturally somewhat imperious in temperament, his bearing toward the bar had seemed harsher from this infirmity. fisher ames used to refer to him as _ursa major_, and once told a friend that he should not go into court again, when judge paine held it, without a club in one hand and a speaking trumpet in the other. theophilus parsons, not long afterwards made chief justice of the state, was arguing before him one day when the judge, under the misconception into which a deaf old person so easily falls, that the younger generation all speak hurriedly and indistinctly, cried out, "mr. parsons, i tell you once for all, take that glove off your tongue." "certainly, sir," was the quick retort, "and may i beg your honor to take the wool out of your ears?"[footnote: "memoir of theophilus parsons," 214.] some twenty years later roger minott sherman, the leader of the connecticut bar, in trying a cause before an empty-headed judge who had been put on the bench for no other apparent reason than that his father was a man of distinction, quoted several english authorities and was about to read from another when the judge remarked that he need not take the trouble to read anything more of that sort to him. "then," said mr. sherman, "with your honor's permission i will read from it to the jury, and let me say that it is an opinion of lord ellenborough, a chief justice of england who rose to the bench by his own merits, and shone by no reflected light." one of the anecdotes of the boston bar is that while samuel dexter, one of the great lawyers of his day, was arguing a cause in the circuit court of the united states before justice story, soon after his accession to the bench, the court suddenly interposed, as a certain principle was asserted, with "that proposition is not law, sir," to which mr. dexter retorted, "it is the law, if your honor please, and will finally be declared to be the law by this court," as indeed it was later by justice story himself.[footnote: payne, "reminiscences of the rhode island bar," 241.] such a passage at arms between court and counsel as took place in either of these instances could now hardly occur. out of court there is no longer this distance between judge and lawyer. while they will not talk over an unfinished case, one that is finally disposed of is often the subject of free comment by each. they are now entirely upon the same level in the community. officialism is put off when the court room is closed. socially they meet in the same circles and on the same footing. it is considered not improper for a judge to accept the hospitality of a lawyer concerned in a case before him, and even a case on trial. the american rule in this respect is much less strict than the english.[footnote: see "memoir of chief justice parsons," 208-211.] * * * * * chapter xxiv the law's delays the right to be heard before judgment, the right to have judgment rendered only on due process of law, and the right in most cases to a jury trial, necessarily make the course of justice slower in this country than it need be in one where there are no such guaranties in favor of those against whom the aid of a court is invoked. the plaintiff, too, has corresponding rights. it was found not so easy by frederick the great to enforce his famous decree that every lawsuit in his dominions must be finished in a year. in a freer land no such result is possible. the power of the judge to expedite trials is also much less in the united states than in most countries. they must be had mainly on oral testimony. the testimony must be so given that thirteen different men may each understand it. what the witnesses may be allowed to tell, and what they cannot be, depends on the application of numerous and artificial rules of evidence. if there is a question as to whether this rule or that applies, the judges sometimes invite and generally allow a discussion by counsel. appeals are liberally conceded. if exceptions to any ruling of the court are to be made the basis of proceedings in error, they must be carefully noted at the time, and afterwards made the subject of a lengthy set of papers. many trial judges are young men of little experience either on the bench or at the bar. they are learning the law by administering it. such men cannot decide controverted points in a moment, and shut off all unnecessary discussion in the manner that might be expected and tolerated from judges of the first rank. it is hardly probable that they will always come to the right decision at last. hence it is that so great a liberty of appeal is granted in every american state. appeal means delay.[footnote: see chap. xix.] a man is fortunate whose appeal is heard within three months and decided within six. oftener he must expect to wait a year or two. during a long course of years an appeal to the supreme court of the united states could not be reached for argument in regular order in less than three years after it was taken. in nebraska, for some time prior to 1901 the supreme court was so overwhelmed with business that it could not hear a cause until five years after it was docketed. in 1882 a brakeman was injured on a new york railroad. he brought suit against the company, and in 1884 recovered $4,000 damages. the judgment in 1886 was reversed on appeal. on a new trial he got a verdict for $4,900. this was appealed to two courts successively. the first affirmed and the second reversed the judgment. in 1889, there was a third trial, at which the company won. two appeals by the brakeman followed. on the first the intermediate appellate court, in 1894, decided against him. on the second, in 1897, the court of last resort decided for him. for the fourth time the case came on in the trial court, and a verdict for $4,500 was recovered. the company appealed and with success. a fifth trial gave him a verdict for $4,900. this, too, was set aside on appeal. a sixth trial followed with exactly the same results. in 1902, the seventh and final trial took place. the verdict this time was for $4,500. the company appealed again, but was defeated.[footnote: case and comment, x, 50.] a lawsuit that embraces seven appeals and lasts for twenty years is, of course, a rarity, but the system of administrative justice under which such things are possible is faulty somewhere. the right of trial by jury is one cause of such delays. the broad right of appeal is another. the want of skill and experience on the part of trial judges and trial lawyers may be a third. the twenty-three english judges of the high court of justice (with the aid of masters in chancery and referees) actually try and determine about fifty-six hundred cases a year.[footnote: this was the average number for each of the years 1900 and 1901.] each judge, therefore, on the average, dispatches over two hundred and forty. no american judges under our american system of practice could do as much and do it well. we tolerate a succession of motions and objections and arguments from the bar which english courts would not. we often take more time in impanelling a jury than they would in trying the case. the american bar, unlike the english, is not so constituted that a certain number of its members are professedly devoted in a special way to the trial of cases. the english barrister in active practice may almost be said to do nothing else. his standing and his income depend on his ability to try case after case in rapid succession. others are responsible for their slow and careful preparation. he is responsible for their quick and effective dispatch when the preparation is ended. he becomes necessarily familiar with the _technique_ of a trial at every point. in examining a witness, he strikes directly at what is material, and would be ashamed to appear ignorant of what that is. in argument he stops when he is through. the ordinary american lawyer who tries a case to-day, draws papers constituting a partnership or a corporation the next, and prepares an opinion on the construction of a will the day after, has not that concentration of knowledge which comes from concentration of occupation. the art of making a clear and definite statement of the points in controversy on paper is also one not sufficiently cultivated by the american bar. without it the system of "code pleading," which has in most states supplanted the rigid and often meaningless forms of the common law, leads to confusion and obscurity. the claims of each party ought to be, but seldom are, so presented that matters of law are, so far as possible, kept distinct from matters of fact, and what he means to prove is set forth, but not the evidence by which he hopes to establish it. this looseness of pleading leads to endless motions to expunge this and correct that, and time of the court is taken up by the preliminaries of trials which, if the lawyers used more care or had more skill, would be devoted to the trials themselves. still worse is it when such motions are postponed until the case comes on for final hearing, and witnesses and juries are compelled to wait during tedious arguments over questions of mere form. in our great centers of population business under these circumstances almost necessarily accumulates too fast for the courts to handle it. in bringing on criminal trials there is little delay, unless at the request of the accused, and for what seems good reason. our constitutions generally provide that whoever is to be tried on a criminal charge shall be tried promptly, and the practice of the courts conforms to this rule. the broad right of appeal, however, for errors of law on the part of the court may serve to postpone the execution of a sentence, and too many new trials are granted by the courts for steps in procedure in matters of a purely technical character. delays from this cause are, however, comparatively infrequent. most convicts are too poor to take advantage of it. most also know that their sentence is just, and are anxious only to have it executed and through with as soon as possible. in hardly one case in a hundred is an appeal taken or, if taken, pursued to the end.[footnote: see chap. xvii.] in our largest cities the disposition of criminal business occupies the time of several judges, and the prosecuting officer has a staff of professional assistants. in cases of such importance as to call for his personal management a postponement is occasionally inevitable. in chicago, in december, 1903, over a thousand cases were awaiting trial in the criminal court. it tends to expedition in the trial of any cause if it is heard before a judge especially familiar with the class of questions which it involves. criminal courts, particularly in cities, are largely held by judges whose work is either wholly or mainly confined to them. this helps greatly to prevent delays in such tribunals. for a similar cause admiralty business is dispatched with great rapidity by the district judges at our principal ports, and patent causes by the circuit courts. in the criminal courts of new york city in 1903, there were about 3,000 prosecutions on which indictments were found, and the defendant committed for want of bail. in most of these cases there was a plea of guilty, but counting them with the others, the average time as to all which elapsed between the original arrest and the final judgment was only eight days. during the same time those who gave bail were generally tried within three months from their arrest.[footnote: nathan a. smyth in the harvard law review for march, 1904.] an insufficiency of judges was formerly one great cause of delay, but the modern tendency has been to have too many, rather than too few. in the court of chancery in virginia (which was held by a single chancellor, then a man seventy-six years old) there were in 1802, 2,627 causes pending at one term. in the city of new york a jury trial in civil causes cannot ordinarily be reached until two years after they are brought. in its principal trial court between four and five thousand cases are annually disposed of, and in 1903, there were nearly ten thousand on its docket. when the criminal courts in the borough of manhattan--the greatest division of the city--were opened in october of that year, there were nearly five hundred different prosecutions to be disposed of, and a hundred and sixty-seven prisoners awaiting trial who had been unable to procure bail. in the county containing the city of chicago (and which contains little else), there were in 1903 twenty thousand civil cases on the dockets of the courts. this mass of business it would require more than two years and a half to dispose of with the number of judges then provided, were no new suits instituted to divide their attention. a very large part of the cases tried to the jury are claims for damages for accidental injuries received by employees in the course of their service. in the county in missouri including kansas city there were, in december, 1903, over fifty-one hundred civil causes on the dockets of the various courts. the population of the county was less than two hundred thousand. about three-fourths of the cases were against corporations for injuries received by their employees. the defendant in such an action is generally in no hurry to bring it to trial. the plaintiff often is not. he may have a weak case, brought in the hope of forcing a settlement. he has probably no money to pay his lawyer for trying it, and finds it hard to get together what is necessary to summon his witnesses and provide expert testimony as to the nature of his injuries. whenever it is tried, however, he is sure to want a jury, for if the case is a good one a jury is apt to give larger damages than a judge, and if a bad one a jury is less likely to appreciate its weakness.[footnote: mccloskey _v._ bell's gap r. r. co., 156 pennsylvania state reports, 254; 27 atlantic reporter, 246.] a jury trial is much slower than a trial before a judge, although the decision is apt to come more quickly. it also facilitates appeals by necessarily presenting more occasions for error. a judge in trying a cause, if evidence of doubtful competency is offered, can admit it provisionally and exclude it afterwards if, on deliberation, he thinks that it should not be considered. with a jury this is impossible. there must be an immediate ruling one way or the other. in the charge to a jury, also, opportunities are offered for exceptions which do not exist if the cause is to be decided by the judge alone. he does not have to instruct himself in public. he can study the case in private at his leisure. a cause of delay formerly existed in several states which arose from the method of computing the costs taxable against the losing party. they included, by statute, a certain sum, say twenty-five or thirty-three cents a day for each day's attendance at court by the prevailing party. this was construed to mean each day during which the action lay in court, since upon any of them it might by possibility be called up, and the client was always represented by his attorney of record, a notice to whom was a notice to him. christian roselius, one of the leaders of the new orleans bar in the nineteenth century, once said that he had spent a fourth of his life in the court house waiting for his cases to be called. the lawyers, as the duty of attendance fell on them, generally considered this allowance as their perquisite. an attorney with a large docket received, therefore, a number of dollars for every day the court sat, and the longer the term lasted or the more terms to which a cause was carried over, the larger was his gain if his client ultimately obtained judgment, and the defendant was of financial responsibility. this system was not universally discontinued until the last quarter of the nineteenth century. a few states, by statute or constitutional provision, set a certain time within which a decision must be rendered after the trial. california gives ninety days; idaho (const., art. v., sec. 17) thirty. a sanction for the law sometimes provided is that the judge cannot draw his salary until he has made oath that he is in no default. * * * * * chapter xxv the attitude of the people toward the judiciary americans are proud of their country and of their state. they are proud of their scheme of government, by which an imperial world-power has been created for certain national and international purposes, resting on a collection of states, each of which is an independent sovereignty, absolutely as respects the others, and for the most part as respects the united states. they are in the mass an educated and intelligent people. the public schools have thus far been found adequate to americanizing the children of foreign immigrants. the colored population of the south stands largely by itself, and constitutes no active and self-moving force in matters of political concern. an educated and intelligent people living under a government of written law of their own making cannot but know how vital it is that this law should be fully guarded and fairly administered. americans have become distrustful of their legislatures. they believe that much of their work is ill-considered, and that some of it has its source in corruption. they are far removed from the chief executive magistrates, and from the sphere in which they move. the president comes nearer to them than the governor of their state because he stands for more, and personifies their country, but it is not from him that they look for peace and safety in the ordinary affairs of life and home. they look for these to the courts, and they know that they will seldom look in vain. only an educated and intelligent people can live under a written constitution. it requires of those whom it governs a certain spirit of conservatism, a certain sentiment of reverence for ancient institutions. our constitutions are mainly the work of former generations. we may amend or recast them, but the substantial framework will remain the same. our declarations of rights speak the language and the lessons of the eighteenth century. their provisions are almost wholly aimed at our executives and legislators. they give guarantees which the judiciary only can enforce. no people can steadily prosper unless a just mean be preserved between reform and conservatism in the administration of the government. the courts stand for conservatism, but by their recognition of custom as law, and their free use of logic and analogy to develop law, they also keep a door open for the entrance of reform. the courts also come very close to the people. they are to be found in every county and almost every township. they settle the estates of the dead. they protect the living. they act largely through juries made up of the people and returning to them after a brief term of public service. all these considerations put americans in a friendly attitude toward the judiciary. it makes less show of authority than the policeman or the militiaman. but the people feel that it has authority and is ready to exercise it always to secure that right be done. when a plain man who thinks that he has been wronged by another declares that he "will have the law on him," it expresses his conviction that he can get justice from the courts. the creation of the judiciary of the united states was welcomed at the outset by all.[footnote: see "life of peter van schaick," 435.] it was not until party feeling had become intense that republicans found it difficult to look with approval on a force evidently becoming stronger every day, and that jefferson could describe the supreme court as the sappers and miners who were gradually undermining the foundations of american liberty.[footnote: letter to thomas ritchie of dec. 25, 1870. "works of thomas jefferson," vii, 192.] of the political questions which engaged attention over the whole country from time to time from the adoption of the constitution to the close of the civil war, almost all bore some relation to the institution of slavery and derived their real vitality from that connection. slavery depended on state laws. unless the authority of each state to allow and regulate it were preserved, its countenance would be endangered. this was largely the source of the "state rights" cry. almost all the powers which the united states possessed the states had lost. for thirteen years each had been in the position of a full sovereign. its courts had exercised jurisdiction over all kinds of actions. now a new set of courts had risen up having over many actions an equal jurisdiction, over some a superior one.[footnote: see chap. x.] the case of chisholm _v._ georgia,[footnote: 2 dallas' reports, 419.] in 1793, and the institution of similar suits against other states of the south showed that the supreme court of the united states claimed authority to render a money judgment against a state, which meant that it could then issue an execution to collect it by levying on the property of the state. in 1798, the alien and sedition laws were passed, and a crime previously cognizable exclusively in the state courts was made a subject of prosecution in those of the united states if it affected an officer of the united states. a member of congress, matthew lyon, of vermont, who was sentenced in the fall of that year to a fine of $1,000 and four months in jail for writing of the president and senate, that his message to congress in 1797 was a bullying speech, which the senate in a stupid answer had echoed with more servility than ever geo. iii. experienced from either house of parliament, served his time and paid the fine, but for the amount of the latter he was reimbursed by congress in 1840. the case of jonathan robbins[footnote: see chap. iii.] in south carolina in 1799, showed that the circuit court at the request of the president could surrender an american citizen to a foreign government to be carried off and tried for murder. this and the sentence of lyon became immediately the subject of hot discussion in congress, and both contributed to the political revolution which put jefferson in the seat of adams in 1801. the creation by the outgoing party of places for eighteen new circuit judges appointed by adams in the last month of his administration strengthened the popular feeling that the courts of the united states were too powerful. that act was at once repealed,[footnote: see chaps. ix, xxii.] and also the provision for the next regular term of the supreme court. the latter measure was taken to prevent any legal proceedings in the supreme court to secure its intervention in behalf of the displaced judges. the new circuit system had been swept away, but the full bench at washington, headed by marshall, remained. the unsuccessful impeachment of one of them followed in 1804.[footnote: see chap. iii.] his acquittal the next year, and that of a majority of the supreme court of pennsylvania,[footnote: mcmaster, "history of the united states," iii, 159.] who were impeached there at the same time for punishing a libel on certain proceedings before that court by a sentence of imprisonment, satisfied all that it was practically impossible to secure the removal of a judge except for the gravest cause. judicial independence had been secured by the very struggle to defeat it. what has won in any contest finds favor with the multitude. they admire a victor. from this time on the courts both of the united states and the states grew in public esteem. when those of the former seemed to trench on the fields of state sovereignty, particularly in the south, the inroad was resented.[footnote: see letters of marshall alluding to this, in "proceedings of the massachusetts historical society," 2d series, xiv, 325, 327, 329, 330.] in one southern state it was even opposed by force.[footnote: see chap. x.] as late as 1854 the supremacy of the supreme court of the united states in expounding the federal constitution was contested by the courts of a northern state; there also in a case growing out of the system of slavery.[footnote: ableman _v._ booth, 21 howard's reports, 506.] another decision by the same tribunal of a similar nature--that in the dred scott case[footnote: dred scott _v._ sandford, 19 howard's reports, 393.]--greatly strengthened the confidence of the southern people in the federal courts, and weakened that of the north. it did much to bring on the civil war, but the result of that struggle was to confirm the authority not only of the supreme court but of the supreme court as it was under marshall and his original associates. in 1901, the centenary of his appointment was celebrated all over the country, north and south. such a tribute was never paid before in any country to the memory of a judge. his services were commemorated for the very reason that led jefferson to depreciate them--because they led to the establishment of a strong national government with a controlling judicial authority adequate to protect it within its sphere from interference or obstruction in any way by any state. confidence in the state courts has also been strengthened during the last century. it was greatly shaken at the time of the fall of the federalists. they had lost the executive and legislative power, but they retained the judicial, and the republicans found it hard to tolerate courts that represented the political ideas of a former generation. this continued long after the extinction of the federalist party, and often extended to distrust of judges elected by the republicans who were thought to have become affected by the influence of their senior associates. in the new york constitutional convention of 1821, peter r. livingston appealed to the lawyers present to say "whether it has not been the case that when a man in the country of any political standing has had a suit depending at a circuit court, he has not consulted with his counsel to know what judge was to preside at the circuit; and whether he has not been frequently told that a political judge was to preside and it would not do to let the cause come on."[footnote: reports of the proceedings and debates of the convention of 1821, 618.] who, he asked, were the present judges of their supreme court? "judge spencer came into office under a republican administration; judge van ness was appointed by a mongrel council; and the elevation to the bench of judge platt was occasioned by the defection from the republican ranks of a man elected to the senate from the county of dutchess, who acted the part of a political judas, and sold his party. we have been bought and sold--there is not one of these men who would have been on the bench if our administration had been truly republican.... there is not a man in this convention who is a republican of any standing or character who would like to have his liberty or property placed in the hands of a political judge of a different party."[footnote: reports of the proceedings and debates of the convention of 1821, 620.] the judiciary may also have suffered somewhat in the esteem of dispassionate observers on account of its attitude in many of the states toward the financial enterprises in corporate form, in which so much money was made and lost in the first third of the nineteenth century. in commenting on a judicial opinion in a southern bank case, the author of one of our leading american legal treatises, himself once a judge, has referred to this period in these plain words: decisions of this kind, which were not infrequent in the era of state banks of issue, can only be "reconciled" with modern holdings in view of the well-known fact that nearly all the politicians were creditors of those political banks, by notes often renewed, at the time when they finally suspended, and that all the judges were politicians. it can hardly be doubted that in many of those semi-barbarous decisions the judges were either rendering decisions to exonerate themselves from their liabilities to the insolvent banks or to exonerate powerful and influential politicians upon whom they depended for the tenure of their offices.[footnote: thompson on "private corporations," v, p. 5306.] it is quite probable that an insensible bias in favor of friends and neighbors may have had its share in producing the judgments to which reference was thus made, but quite improbable that they were the fruit of baser motives. independently of other considerations, every judge is watched by sharp eyes in every step which he may take in the progress of a cause. he acts in view of the bar at large, and of two of their number in particular, one of whom probably will be disappointed by his decision, and solicitous to ascertain and employ every reasonable ground for overturning it. the bar association of the country have exercised a large influence during the past thirty years in maintaining public confidence in the purity of the bench. it is extremely rare that suspicion of corruption attaches to a judge; and rarer still that it attaches justly. jurors are occasionally found who are guilty of it, and more who, without being chargeable with so black a crime, are more interested in serving a friend than in doing justice. as a whole, however, american courts are clean-handed throughout, and the people know it. the judiciary has been popularized in most states by constitutional provisions replacing tenure during good behavior by stated terms of years, and appointment by the governor or legislature by election by the people. the powers of judges have been on the whole increased. the only matter in which they have been substantially cut down is that of punishment for contempt. serious attempts have been made to abridge their jurisdiction over injunctions, but without success. these attacks have come from those representing certain labor unions. the more thorough organization of working-men in all trades and callings during the last half century, and the development of collectivism as a working theory, have produced a class of leaders among them who regard the courts as manned by representatives of capital and controlled in the interests of capital.[footnote: the number of the _pennsylvania grange news_ for sept., 1904, states this view at length.] as a judicial office can only be properly filled by one who has had a legal education and as, aside from a few petty magistrates and local tribunals, practically all our judges are trained lawyers, it necessarily follows that they cannot belong to the class of working-men in the general acceptation of that term. their education has cost money and is generally the fruit of capital. the judges of the higher courts are usually men of some means. if they were not, they could not have afforded to accept their places. but the people at large do not believe that only the poor man can be relied on to deal justly on the bench. the mass of working-men do not believe it. they do believe that courts have too much power over them in their associated relations. they are in favor of cutting off the right of issuing injunctions to suppress boycotts or "picketing" in case of strikes. but they know that it is from the legislatures and not from the courts that this must be sought. the federal judges stand higher in public estimation than the state judges of corresponding rank. this is partly on account of the paramount authority of the government which they represent. it is partly also because there are none of them who occupy the lower grades of judicial station with a petty jurisdiction over petty controversies. it is more because of their permanence of tenure. this removes them from that field of criticism which surrounds every public officer who holds for a term limited in duration, and is always in the position of a candidate for re-appointment. our methods of judicial appointment are not such as always to exclude political feeling from the bench either of the states or of the united states, but the people know that there is less of it there than in any other department of governmental action. president hadley of yale university has thus expressed what is the general view of the work of the courts held by thoughtful men in the united states; and it is they who in the long run form and lead public opinion. "on the whole, federal and state courts alike have been not only a protection, but the one really efficient protection of minority interests against oppression by the majority.... it has more than once happened that an impatient majority has denounced these courts as instruments of partisanship. the anti-slavery leaders, the soft money leaders, and the labor leaders have in turn taken exception to their utterances, and even ventured to impugn their motives. but i think that most intelligent men who know the history of the country will say that our courts have been the real bulwarks of american liberty; and that while hamilton and his associates would be somewhat disappointed in the working of the machinery of legislation and administration if they could see it in its present shape, they would be filled with admiration at the work which has been accomplished by the judiciary. i believe it to be the judgment of sober-minded men that the courts have furnished the agency which has guarded us against excesses, and have saved the american republic from the necessity of repeating the successive revolutionary experiences which france underwent before she could attain to a stable democracy."[footnote: "freedom and responsibility," 23, 24.] this confidence in and respect for the judiciary as a whole has increased with the general advance of the country in population and wealth. there have been larger questions with which to deal, and the courts have been found adequate to the task. but at the same time the personal consequence and reputation of every individual american judge has been steadily decreasing. as states multiply and the range of litigation widens, the work of judicial exposition of legal principles comes to be shared by so many hands that what any one man does is of comparatively small account. there is no room for star players upon the stage. broad as it is, it is too crowded for one to make a conspicuous place for himself and stand as marshall or story, kent or parsons, did, apart from his fellows. popular confidence is now not placed in courts because this or that man is the ruling spirit in them. it is impersonal and attaches itself to the institution of the judiciary as, all things considered, the best guaranty of good government in the united states. this spirit of confidence is, of course, not universal and unqualified. it is often not found in bodies of working men, associated as labor unions. they have repeatedly found a court enforcing public order in a way that interfered with their manner of conducting a strike. they have been met by injunctions, and more often by criminal prosecutions. the membership of a labor union, in many parts of the country, is apt to be largely of foreign birth. the leaders not infrequently know little of the english language and less of american institutions. they have been led, in their native land, to regard the law and its officers as their enemies, and they look at them in the same way here. it is believed, however, that a large majority of the unions regard them with respect, and it is certain that such is the prevailing feeling of non-union men. but that the public trust in our judges is less than it was when the first edition of this work was published,[footnote: see _supra_, page 340.] is indicated by the favor with which, in many quarters, the doctrine of the "judicial recall" has been received. the dangers incident to its practice are obvious, and seem far to outweigh any attending advantages. in the united states, of all lands on the face of the earth, it is important that the judges should act with resolution and without thought of the consequences personal to themselves. elsewhere in form, but here only in fact, are judges armed with the power of declaring legislative action void which is in conflict with a higher form of law, that proceeded directly from the people, and mainly from the people of a former generation. to expose one who exercises this power to immediate displacement, by a popular vote--largely, perhaps, composed of his political opponents--is to invite the enactment of questionable statutes, and still worse--to weaken the attractions of the bench for able and honest men. our judicial terms, in most of the states, are already too brief for the public good. to make them determinable at the will of the electoral constituency tends powerfully to keep good lawyers at the bar, who might otherwise have done honor to a judicial station. transcriber's note: obvious typographical errors have been corrected. inconsistent hyphenation and spelling in the original document have been preserved. italic text is denoted by _underscores_ and bold text by =equal signs=. everyman's library edited by ernest rhys poetry and the drama the old yellow book being a supplementary volume to "the ring and the book" translated and edited by charles w. hodell this is no. 503 of _everyman's library_. the publishers will be pleased to send freely to all applicants a list of the published and projected volumes, arranged under the following sections: travel * science * fiction theology & philosophy history * classical for young people essays * oratory poetry & drama biography reference romance in four styles of binding: cloth, flat back, coloured top; leather, round corners, gilt top; library binding in cloth, & quarter pigskin london: j. m. dent & sons, ltd. new york: e. p. dutton & co. poets are the trumpets which sing to battle ... poets are the unacknowledged legislators of the world shelley the old yellow book: source of robert browning's the ring & the book london & toronto j. m. dent & sons ltd. new york e. p. dutton & co first issue of this edition 1911 reprinted 1917 publishers' note some years before his death browning promised to leave the _old yellow book_, together with other books and manuscripts, to balliol college, oxford, and his son carried out the promise soon after the poet's decease. the carnegie institution of washington, d. c., has reproduced the entire book in photo-facsimile, with translation and editing by charles w. hodell. the publishers gratefully acknowledge the kindness and generosity of the institution in allowing the translation of the _yellow book_ to be reproduced in the present volume. they have also to acknowledge their indebtedness to professor hodell for the courtesy he has shown, and the great help he has given in editing these volumes. hitherto the work has been practically inaccessible to british readers, and in its new dress it is hoped it will be found invaluable in interpreting the greatest work of robert browning. introduction the _old yellow book_ is a soiled and bloody page from the criminal annals of rome two centuries ago, saved apparently by mere chance for the one great artist of modern literature who could best use it, and who has raised this record of a forgotten crime to a permanent place in that ideal world of man's creation where caponsacchi and pompilia have joined the company of paolo and francesca, of the red cross knight, of imogen, of marguerite and faust, and of don quixote. one june day of 1860, robert browning passed from the casa guidi home to enjoy the busy life of florence. there, "pushed by the hand ever above my shoulder," he entered the piazza of san lorenzo: crammed with booths, buzzing and blaze, noontide and market-time. he had brought home from such wanderings many a rare old tapestry, or picture, or carving from the long artistic past of the city. this day his eye caught the soiled, vellum-covered volume, crowded between its insignificant neighbours. "one glance at the lettered back," declares the poet, "and stall! a lira made it mine." all the way home and all day long, he pored over these pages, until by nightfall he had so mastered the facts of the case that the whole tragedy lay plain before his mind's eye. the book led him, and leads us, back to the morning of january 3, 1698, when all rome was astir with the sensation of a brutal assassination. the aged comparini, cut to pieces in their own home in the very heart of rome on the evening before by a band of assassins, were now exposed to the view of an excited mob of the curious and idle. pompilia, desperately wounded, lay a-dying. a police captain and posse were in pursuit of the criminals, one of whom was a nobleman who had held office in the household of one of the great cardinals. toward night the criminals were brought back to the city, and were followed through the streets to the prison doors by a great throng. just seven weeks later and again rome was throbbing with excitement. unwonted crowds were pressing into the piazza del popolo, where gallows and scaffold had been prepared. at last, up the corso filed the brotherhood of death with their black gowns and great cross, and behind them, in separate carts, the five criminals. in the midst of a sea of upturned faces guido and his fellows met their end, and the curtain fell. the _old yellow book_ is the record of the court procedure of those seven intervening weeks, and shows us the whole legal battle fought to save guido, while rome looked on with the fascinated interest which has always attended the great murder trials. it includes the lawyers' arguments for and against the accused, together with a part of the evidence brought into court, and some additional miscellaneous data on the case. all this had evidently been assembled by the florentine lawyer, cencini, to whom certain letters included are addressed. he seems to have been interested in the case as a precedent on an important and much disputed point of law, "whether and when a husband may kill an adulterous wife." cencini may also have had some professional relation with the franceschini family at arezzo. at any rate, he set the material in order, provided title-page and index, and a transcript of the record in a criminal case against pompilia in the tuscan courts (pp. 5-7), and bound it securely in the vellum cover which conveyed it to the poet's hands more than a century and a half later. whatever meaning this volume may have as a legal precedent, it had for browning, and has for the lay reader, a deep human interest as the incomplete record of a sordid series of intrigues for certain properties, ending at last in a fearful crime. guido franceschini, scion of a noble but impoverished tuscan family, had sought his fortunes in rome, and had attained a secretaryship in the household of cardinal lauria. his brother, the abate paolo, a shrewd and effective man, rose much higher, at last attaining important office among the knights of st. john. guido, less astute and less ingratiating, reached middle life with but scant success, and at last was left unprovided. with the assistance of abate paolo, he planned to recoup his fortunes by a bourgeois marriage. though past forty years of age and of unattractive appearance, he won, by his noble name and subtle intrigue and falsification, the thirteen-year-old daughter of the comparini, of the well-to-do middle class of rome. after the marriage in december 1693, pompilia and her parents accompanied guido back to arezzo, where, in the ruinous franceschini _palazzo_, the comparini had ample opportunity to repent their folly. bitter contentions soon arose, and at last the comparini fled from the brutalities of their son-in-law, and returned to rome. there they published broadcast the sordid poverty and the ignoble brutality of their persecutors, probably printing and circulating the affidavit of the servant (pp. 49-53). guido seems to have retorted by circulating the forged letter from pompilia (pp. 56, 57). but they struck a more deadly blow at the pride of the franceschini when they revealed that pompilia was not their own child, but was of ignominious parentage. and in the spring of 1694 they brought suit before judge tomati for the recovery of the dowry monies paid to franceschini--a bitter humiliation to the greedy poverty of the franceschini. it must have been a scandalous suit, bringing dishonour to both parties as their domestic difficulties were exposed to the throngs of the curious. in this trial were adduced the letters of the governor (pp. 89, 90) and of the bishop of arezzo (p. 99). the comparini lost their suit, but appealed to the rota, and their case was pending for several years, during which time they may have baited the franceschini with spiteful scandals. in the meantime, the child-wife, pompilia, was left in desperate plight--despised and hated by her husband's family. her situation grew intolerable. guido had evidently determined to rid himself of her without relaxing his grip on her property. his brutalities were systematic and cunning. at last she was driven to flee for her life, and on april 29, 1697, made her escape under the protection of caponsacchi, a gallant young priest. it was a desperate step, gravely reprehensible in the eyes of the world. the fugitives pressed toward rome, but guido overtook them at castelnuovo, fifteen miles short of their destination, and had them arrested. at rome, criminal charges of flight and adultery were brought against them. this process of flight, as it is repeatedly called in the _yellow book_, continued all through the summer. it was for their defence in this case that pompilia and caponsacchi made their affidavits (pp. 90 and 95), giving their motives for the flight. at the same time guido urged the evidence of the love-letters (pp. 99-106), which he claimed to have found at the time of the arrest of the fugitives. in september, judgment was rendered against caponsacchi--relegation for three years to civita vecchia--a punishment commensurate with indiscretion rather than with crime. pompilia was unsentenced, but was retained for a month in safekeeping in the nunnery delle scalette, and was then permitted to return to the home of her foster-parents, the comparini, though still technically a prisoner in this home (p. 159). here on december 18 a boy was born. on christmas eve, guido reached rome with four young rustics, whom he had hired to assist him in the assassination. for a week he lurked in the villa of his brother, abate paolo, who had left rome. then, on the evening of january 2, he won entrance to the home of the comparini by using the name of caponsacchi. the parents were instantly stabbed to death, and pompilia was cut to pieces with twenty-two wounds. leaving her for dead, guido and his cut-throats fled, as the outcries of the victims had given the alarm. that night they travelled afoot nearly twenty miles, but were pursued by the police, and were arrested with the bloody arms still in their possession. such was the crime, and the _old yellow book_ is the record of the legal battle over the assassins, which was fought through the criminal courts of rome, presided over by vice-governor venturini. the prosecution and defence alike were conducted by officers of the court, two lawyers on each side, the procurator and advocate of the poor for the defendants, and the procurator and advocate of the fisc against them. as the fact of the crime was definitely ascertained, the legal battle turned entirely on the justification or condemnation of the motive of the crime. the defence maintained that the assassination had been for honour's sake, and the unwritten law, to which appeal is made in generation after generation, was urged at every point. that guido had suffered unspeakable ignominy cannot be denied; that his wife had been untrue to him even in the perilous flight with caponsacchi is unproved, as the courts had evidently held in the process of flight. the prosecution, on the other hand, reiterated in every argument their reading of guido's motive--greed. greed had led him to marry pompilia. greed had occasioned his disgraceful wranglings with the comparini. defeated greed had made him torture his wife into scandalous flight, and calculating greed had led him to commit the murder at a time and in a manner to save the whole property to himself. still further, said the prosecution, not only was his motive bad, but the crime was committed in a way which involved him in half a dozen accessory crimes, each of them capital. such is the drift of the argument, which is fortified at every point by citation of precedent from the legal procedure of all ages. altogether it is a highly skilled legal battle according to the technical limitations of the game, while the simple appeals to equity and to common human feeling hardly enter at all. the trial proceeded in two stages. the earlier one, during the latter half of january, was opened by arcangeli (pamphlet 1), supported by advocate spreti (pamphlet 2). the prosecution is opened by procurator gambi (pamphlet 5), supported by advocate bottini (pamphlet 6). arcangeli and bottini make further argument in pamphlets 3 and 14. two pamphlets of evidence were assembled and printed--for the defence, pamphlet 7; and for the prosecution, pamphlet 4. the latter part of this stage of the case is much occupied with arguing whether guido and his companions may be tortured to get a fuller statement from them. in spite of the efforts of guido's attorneys, the torture was evidently decreed, and fuller evidence was forced from the defendants, though one of them bore the torture till he fainted twice. the trial then enters on its second stage, in which, after some preliminary skirmishing about the legality of the torture and the status of the evidence given under this torture, the lawyers settle to their most masterly work. arcangeli and spreti develop an elaborate and skilled defence (pamphlets 8 and 9), and are answered by bottini's masterpiece for the prosecution (pamphlet 13). spreti closes the defence in pamphlet 16. pamphlet 11 presents some additional matters of evidence. all these arguments and summaries of evidence were printed by the official papal press (see the imprint _typis rev. cam. apost._), probably overnight, between the sessions of the court, as typewritten briefs would be prepared to-day. few copies were printed, and these were solely for the judges and attorneys in the case. there would be no popular circulation of them in rome at large. the particular copies included in the _old yellow book_ were probably gathered by one of these attorneys, and sent to signor cencini in florence (letter iii. p. 238). we need but look to our own age to rest assured that outside of the court room all rome was athrill with interest in this murder case, and was speculating on the fate of the accused. the attorneys for the defence, in the midst of the trial, made a sudden appeal to this public interest and sought the support of public sentiment by means of an anonymous pamphlet (pamphlet 10) written in italian and printed without an imprint or signature, but evidently addressed to the bar of public opinion. it seems to have been written by guido's lawyers, or their lackeys, for it repeats the various points already made in the arguments. whether it was distributed free or was sold for a small price, it must have been seized and devoured by all rome as are the journalistic reports of notorious criminal trials to-day. we can imagine the alarm of the prosecution when they perceived this flank movement against them. with all possible haste they prepared their reply, also in italian and without signature or imprint, and probably within a day or two had issued this response (pamphlet 15), which meets the other pamphlet at every point, and bitterly arraigns the greed of guido. these two pamphlets evidently suggested to browning his "half-rome" and "other half-rome." there must have been other popular exploitations of this crime. two manuscript italian narratives of it have been discovered. the first of these (pp. 259-266) was found in london and sent to browning, who used it extensively in writing his poem. the second (pp. 269-281) was discovered a few years ago in rome. other accounts may yet come to light. the trial of guido and his companions was carried forward to a prompt judgment, and on february 18 they were pronounced guilty and were condemned to death. a technical staying of sentence for four days was granted by reason of guido's _clerical privilege_, but execution followed on february 22. the _old yellow book_ includes three original letters (pp. 237-8) written from rome immediately after the execution to signor cencini at florence. yet the case was not quite at an end. a number of civil suits were promptly instituted by various claimants for the property of the comparini. the franceschini still pushed their claim in spite of the infamy they had suffered for that property. pompilia's executor, tighetti, claimed all in trust for the child, gaetano. then the refuge of the convertites, under their legal right to the property of all women of evil life who died in rome, accused the memory of pompilia and claimed her property. the case seemed to be entering on one of those interminable struggles in court. the procurator lamparelli (pamphlet 17) goes back to analyse again the motives in the whole case and to justify pompilia's innocence. the remainder of this trial is lost to us save for the final _definitive sentence_ of the courts (pamphlet 18), issued in september 1698, which clears the memory of pompilia entirely and for ever in the eyes of the law. this was the record which fell into browning's hands. the poet tells of his immediate interest in the tragedy, partly due to that common human interest in great crimes, partly to the casuistic presentation of motive throughout the _book_, partly to his championing the rights of pompilia, dishonoured and slain not merely by a brutally selfish husband, but by a corrupt social condition around her. after some delay, browning saw his way to embody in art the story which had interested him so deeply. the plan came to him, according to w. m. rossetti, one day while he was walking at biarritz, and from 1862 till the publication in 1868-9, he was working continuously on _the ring and the book_. he had mastered every detail of the _yellow book_ by continuous re-readings, and in his art he was scrupulously, but never laboriously, accurate to the facts before him. in the poem he names thirty-three persons exactly as he found them in his original. place names are adopted with the same accuracy. the specific dates recorded in the _book_ are followed at all points, save in the significant change of the date of caponsacchi's rescue of pompilia from april 29 to 23, st. george's day. the incidents of the tragedy, even when compromising to pompilia, whose cause he championed, are used without repression or falsification. and perhaps most remarkable of all, the poet had mastered all the technical paraphernalia and phraseology of the lawyers, and uses these with minute care, not entirely devoid of misunderstanding and error. in the _book_ he found all the points of law, all the precedents and authorities, and almost all of the latin phrases and sentences found in the monologues of the lawyers of the poem. a remarkable instance of this is seen in his word for word adaptation of the long peroration of arcangeli (pamphlet 8) in the close of the monologue of the arcangeli of the poem. and the actual letter of arcangeli (p. 237) is reproduced verbatim in the poem, book xii. ll. 239-88. altogether the poet affords one of the most remarkable illustrations of literal and detailed accuracy in the use of the raw material of art. yet here, as in all cases of true art, the greatness of the final product lies not so much in the material that fell to the artist as in the personal resource and power within himself which was able to use the material. browning found suggestion for a suffering saint in fra celestino's report of pompilia's death-bed (pp. 57, 58), but the pompilia of the poem embodies the poet's deepest insight into womanhood with all its spiritual relationships, in the love of man, the passion of maternity, and devotion to god. browning ascertained in the _book_ that caponsacchi was a resolute man, who had involved himself in many perils for the sake of pompilia, but from his own personal resource of manly devotion, of chivalrous daring, of passionate indignation at wrong, of spiritual tenderness and reverence, he created a caponsacchi. in the _book_ he found every turn of the cunning, of the greed, of the brutality of guido and his family, but from his own deep realisation of the power of evil in the world, and of the black depravity of the lowest forms of humanity, he created his franceschini. thus at every point, founding himself on the fact of the _book_, he is able to set forth this tragedy to the world as it grew in his own imagination while searching his own heart and the hearts of others through many years. and the chance-found _old yellow book_ at last occasioned the most profound utterance robert browning was to give to the world in all that concerns the human heart and its motives as they play the drama of the world before the eye of the almighty. charles w. hodell. "do you see this square old yellow book ... pure, crude fact. give it me back! the thing's restorative i' the touch and sight." a setting-forth of the entire criminal cause against guido franceschini, nobleman of arezzo, and his bravoes, who were put to death in rome, february 22, 1698. the first by beheading, the other four by the gallows. roman murder-case. in which it is disputed whether and when a husband may kill his adulterous wife without incurring the ordinary penalty. contents page sentence of the criminal court of florence in the criminal case against gregorio guillichini, francesca pompilia comparini, wife of guido franceschini, etc. december 1697 5 argument in defence of the said franceschini of the honourable signor giacinto arcangeli, procurator of the poor in rome, made before the congregation of monsignor the governor 9 argument of the honourable signor advocate desiderio spreti, advocate of the poor, in defence of said franceschini and his associates 25 argument of the abovesaid signor arcangeli in defence of biagio agostinelli and his companions in crime 39 summary of fact made in behalf of the fisc 47 argument of signor francesco gambi, procurator of the fisc and of the reverend apostolic chamber, against the abovesaid franceschini and his companions in crime 63 argument of signor giovanni battista bottini, advocate of the fisc and of the reverend apostolic chamber, against the abovesaid 73 summary of fact in behalf of franceschini and his associates in crime 87 another argument of the abovesaid signor arcangeli in favour and defence of the abovesaid 107 another argument of signor advocate spreti in favour of the above 131 an account of the facts and grounds, made and given by an anonymous author 145 another summary made on behalf of the fisc 157 argument of signor gambi, procurator of the fisc, against the abovesaid franceschini and his companions 163 another argument of the signor giovanni battista bottini, advocate of the fisc 169 another argument of the abovesaid against the said defendants 197 a response of the abovesaid account of fact as given by the anonymous author 209 argument of signor advocate spreti in favour of franceschini, etc. 227 letter written by the honourable signor giacinto arcangeli, procurator of the poor, to monsignore francesco cencini in florence, in which he tells him that the sentence of death had been executed in rome against the guilty on february 22, 1698--that is, that franceschini had been beheaded, and the other four hanged 235 two other letters, one written by signor gaspero del torto and the other by signor carlo antonio ugolinucci to the aforesaid monsignore francesco cencini 237 argument of signor antonio lamparelli, procurator of the poor in the said case 239 the sentence of signor marco antonio venturini, judge in criminal causes, which declares that the said adultery was not proved, and which restores to her original fame the memory of francesca pompilia comparini, wife of guido franceschini 253 the secondary source of "the ring and the book" 257 trial and death of franceschini and his companions 267 notes and comment 283 [illustration: _but for me the muse in her strength prepares her mightiest arrow._] [illustration: _facsimile page from the original "old yellow book."_] sentence of the criminal court of florence _february 15, 1697 a.d._ attestation by me undersigned how, in the order of the affairs of the governors, which are set before his serene highness, in the chancery of the illustrious signori auditori of the criminal court of florence, there appears among other affairs of business, under decision 3549, the following of tenor as written below, that is arezzo against 1. gregorio, son of francesco guillichini, not described. 2. francesca pompilia comparini, wife of guido franceschini, and 3. francesco, son of giovanni borsi called venerino, servant of agosto, host at the "canale," because the second accused, against her honour and conjugal faith, had given herself up to dishonest amours with the canon giuseppe caponsacchi and with the first accused, who instructed her, as you may well believe, to part from the aforesaid city of arezzo, the evening of april 28, 1697. and, that they might not be discovered and hindered, the second accused put a sleeping-potion and opium in her husband's wine at dinner. at about one o'clock the same night, the said canon caponsacchi and the first accused conducted the aforesaid second accused away from the home of her husband. as the gates of the city were closed, they climbed the wall on the hill of the torrione; and having reached the "horse" inn, outside of the gate san clemente, they were there awaited by the third accused with a two-horse carriage. when canon caponsacchi and the second accused had entered into the said carriage, the word was given by him, the aforesaid first accused, and they set out then upon the way toward perugia, the said third accused driving the carriage as far as camoscia. and while they were travelling along the road they kissed one another before the very face of the third accused. still further, the second accused, along with the first accused and canon caponsacchi, carried away furtively from the house of the said guido, her husband, from a chest locked with a key, which she took from her husband's trousers [the following articles]: about 200 scudi in gold and silver coin; an oriental pearl necklace worth about 200 scudi; a pair of diamond pendants worth 84 scudi; a solitaire diamond ring worth 40 scudi; two pearls with their pins, to be used as pendants, 6 scudi; a gold ring with turquoise setting worth 2 scudi; a gold ring set with ruby worth 36 scudi; an amber necklace worth 5 scudi; a necklace of garnets alternated with little beads of fine brass worth 6 scudi; a pair of earrings in the shape of a little ship of gold with a pearl worth 16 scudi; two necklaces of various common stones worth 4 scudi; a coronet of carnelians with five settings and with a cameo in silver filigree worth 12 scudi; a damask suit with its mantle, and a petticoat of a poppy colour, embroidered with various flowers, worth 40 scudi; a light-blue petticoat, flowered with white, worth 8 scudi; two vests to place under the mantle worth 2 scudi; a pair of sleeves of point lace worth 20 scudi; another pair of sleeves fringed with lace worth 5 scudi; a collar worth 4 scudi; a scarf of black taffeta for the shoulder with a bow of ribbon worth 8 scudi; an embroidered silk cuff worth 14 scudi; two aprons of key-bit pattern with their lace worth 12 scudi; a pair of scarlet silk boots worth 14 scudi; a pair of woollen stockings, a pair of white linen hose, and a pair of light-blue hose, worth 5 scudi; a snuff-coloured worsted bodice with petticoat, ornamented with white and red pawns, worth 3 scudi; a blue and white coat of yarn and linen, adorned with scarlet and other coloured ornaments, worth 10 scudi; a worsted petticoat of light-blue and orange colour, striped lengthwise, with yellow lines and with various colours at the feet, worth 14 scudi; an embroidered petticoat worth 9 scudi; a silk cuff worth 5 scudi; four linen smocks for women worth 14 scudi; a pair of shoes with silver buckles worth 8 scudi; many tassels and tapes of various sorts worth 14 scudi; six fine napkins worth 7 scudi; a collar of crumpled silk worth 7 scudi; two pairs of gloves of a value of 4 scudi; four handkerchiefs worth 5 scudi; a little silver snuff-box with the arms of the franceschini house upon it worth 16 scudi; a coat of her husband guido, rubbed and rent by the lock of a chest where he kept part of the aforesaid clothing. and they had converted the whole to their own uses against the will of the same, the first accused and canon caponsacchi having scaled the walls of the city in company with the second accused, as soon as she had committed adultery with them. and the said third accused had given opportunity for flight to the said second accused along with the canon, in the manner told. therefore the commissioner of arezzo was of opinion to condemn arbitrarily the first accused to five years' confinement at portoferrio with the penalty of the galleys for the same length of time, not counting the reservation of 15 days to appear and clear himself; to condemn the second accused to the penalty of the stinche for life and to the restitution of what was taken away, with the abovesaid reservation; and that the third accused be not prosecuted further and be liberated from prison. but the criminal court was of opinion that the first accused should be condemned to the galleys during the pleasure of his serene highness, with the said reservation. as to the second accused, who was imprisoned here in rome, in a sacred place, it suspended the execution. and for the third, who had done no voluntary evil, it gave up further inquiry. again proposed in the said business before his serene and blessed highness with the signature of december 24, 1697. the opinion of the court stands approved. in sign of which, i, joseph vesinius, j. v. d., an official in the criminal court of florence, etc., in faith whereto, etc. [file-title of pamphlet 1.] _by the most illustrious and most reverend lord governor in criminal cases_: _roman murder-case_ _on behalf of count guido franceschini, prisoner, against the fisc._ _memorial of fact and law._ _at rome, in the type of the reverend apostolic chamber, 1698._ romana homicidiorum [pamphlet 1.] most illustrious and most reverend lord governor: count guido franceschini, born of a noble race, had married, under ill omen, francesca pompilia, whom pietro and violante had asserted (even to one occupying a very high office) to be their own daughter. after a little while, she was taken to arezzo, the country of her husband, along with her foster-parents, and was restrained from leading her life with utter freedom. yet she has made pretence that she was hated on the pretext of sterility, as is clearly shown in her deposition during her prosecution for flight from her husband's home. both she and her parents took it ill that they were denied their old free life, and they urged their daughter to make complaint before the most reverend bishop, saying that she had been offered poison by her brother-in-law. at the departure of this couple, when they were about to return to the city, they most basely instigated her--yes, and even commanded her by her duty to obey them--that she should kill her husband, poison her brother-in-law and mother-in-law, and burn the house; and then with the aid of a lover to be chosen thereafter, she should put into effect her long-planned flight back to the city. (but all this should be done after their departure, lest they might seem to have given her evil counsel.) [such facts] may be clearly deduced from one of the letters presented as evidence in the same prosecution. when these pseudo-parents had returned home, they declared that francesca was not born of themselves, but had been conceived of an unknown father by a vile strumpet. they then entered suit before judge tomati for the nullification of the dowry contract. day by day the love of pompilia for her husband kept decreasing, while her affection for a certain priest was on the increase. this affair went so far that on an appointed night, while her husband was oppressed with sleep (and i wish i could say that she had no hand in this, and had not procured drugs from outside), she began her flight from her husband's house toward rome, nor was this flight without theft of money and the company of her lover. her most wretched husband pursued them, and she was imprisoned not far from the city. then, when after a short time they were brought to trial, the lover was banished to civita vecchia for adultery, and she herself was placed in safe keeping. but owing to her pregnancy she returned to the home of pietro and violante, where she gave birth to a child (and i wish i could say that it had not been conceived in adultery). this increased the shame and indignation of the husband, and the wrath, which had long been stirred, grew strong, because his honour among upright men was lost and he was pointed out with the finger of scorn, especially in his own country, where a good reputation is much cherished by men who are well-born. therefore his anger so impelled the luckless man to fury, and his indignation so drove him to desperation, that he preferred to die rather than to live ignominiously among honourable men. with gloomy mind, he rushed headlong to the city, accompanied by four companions. on the second night of the current month of january, under the show of giving a letter from the banished lover, he pretended to approach the home of the comparini. when at the name of caponsacchi the door was opened, he cut the throats of violante and pietro, and stabbed francesca with so many wounds that she died after a few days. while this desperation continued, his dull and unforeseeing mind suggested no way to find a place of safety. but accompanied by the same men, he set out for his own country along the public highway by the shortest route. then, while he was resting upon a pallet in a certain tavern, he was arrested, together with his companions, by the pursuing officers. great indeed is this crime, but very greatly to be pitied also, and most worthy of excuse. even the most severe laws give indulgence and are very mild towards husbands who wipe out the stain of their infamy with the blood of their adulterous wives. [citation of _lex julia de adulteriis, lex cornelia de sicariis_ and the gracchian law. cf. _ring and book_, i. 2268.] this indeed was sanctioned in the laws of the athenians and of solon (that is, of the wisest of legislators), and what is more, even in the rude age of romulus, law 15, where we read: "a man and his relatives may kill as they wish a wife convicted of adultery." [citations; and likewise in the laws of the twelve tables, see aulus gellius, etc.] i hold, to begin with, that there can be no doubt of the adultery of the wife [for several reasons]. [first], her flight together with her lover during a long-continued journey. [citations.] [second], the love letters sent by each party; these cannot be read in the prosecution for flight without nausea. [citations.] [third], the clandestine entry of the lover into her home at a suspicious time. [citations.] [fourth], the kisses given during the flight (p. 100) according to the following sentiment: "sight, conversation, touch, afterwards kisses, and then the deed [adultery]." [citations.] [fifth], their sleeping in the same room at the inn. [citations.] [sixth], the sentence of the judge, who condemned the lover for his criminal knowledge of her, which made this adultery notorious. [citations.] furthermore, we are not here arguing to prove adultery for the purpose of demanding punishment [upon the adulteress], but to excuse her slayer, and for his defence; in this case, even lighter proofs would be abundant, as matthã¦us advises. [citations.] these matters being held as proved, the opinion of certain authorities who assert that a husband is not excusable from the ordinary penalty, who kills his adulterous wife after an interval, does not stand in our way. for the aforesaid laws speak of the wife who had been found in her guilt and has been killed incontinently. hence such indulgence ought not to be extended to wife-murder committed after an interval, because the reins should not be relaxed for men to sin and to declare the law for themselves. [citations.] furthermore, farinacci does not affirm this conclusion, but shows that he is very much in doubt, where he says: "the matter is very doubtful with me, because injured honour and just anger--both of which always oppress the heart--are very strong grounds for the mitigation of the penalty." matthã¦us well weighs these words on our very point. and both farinacci and rainaldi conclude that the penalty can be moderated at the judgment of the prince. i humbly pray that this be noted. the aforesaid laws, which seem to require discovery in the very act of sin, as some have thought, do not decide in that way merely for the purpose of excusing a husband moved to slaughter by a sudden impulse of wrath and by unadvised heat. but they so decide lest on any suspicion of adultery whatsoever, oftentimes entirely without foundation, men should rush upon and kill their wives, who are frequently innocent. hence the "discovery in the very act of crime," which is required by law, is not to be interpreted, nor to be understood, as discovery in the very act of licence, but is to be referred to the proof of the adultery, lest on trifling suspicion a wife should be given over to death. but when the adultery is not at all doubtful, there is no distinction between one killing immediately and killing after an interval, so far as the matter of escaping extreme punishment is concerned. [citations.] for whenever a wife is convicted of adultery, or is a manifest adulteress, she is always said to be "taken in crime." [citations.] and in very truth the reasons adduced by those holding the contrary opinion are entirely too weak. for murder committed for honour's sake is always said to be done immediately, whensoever it may be committed. because injury to the honour always remains fixed before one's eyes, and by goading one with busy and incessant stings it urges and impels him to its reparation. [citations.] such relaxation of the reins to husbands, for taking into their own hands the law, would indeed be too great if the law of divorce were still valid. for in that case husbands would not be permitted to make such reparation of their honour. for another way would be satisfactorily provided for them, namely, in their right to dismiss and repudiate the polluted wife. in this way they could put far from themselves the cause of their disgrace, yes, and the very ignominy itself. but when by the divine favour our gentile blindness was removed, and matrimony was acknowledged to be perpetual and indissoluble, those were indeed most worthy of pity who, when all other way of recovering their honour was closed to them, washed away their stains in the blood of their adulterous wives. petrus erodus [citation], after he has discussed a matter of this kind according to the usual practice of roman law, adds in the end: "for as all hope of a second marriage is gone so long as the adulteress still lives, we judge that such very just anger is allayed with more difficulty, unless it be by the flight of time;" and therefore such a case, when not terminated by divorce, is usually terminated by murder. for as augustine says, "what is not permitted, becomes as if it were permitted; that is, let the adulteress be killed, that the husband may be released." i acknowledge that it is laudable to restrain the audacity of husbands, lest they declare the law for themselves in their own cause; since they may be mistaken. but it would be more laudable indeed to restrain the lust of wives; for if they would act modestly and would live honourably they would not force their husbands to this kind of crime, which i may almost call necessary. nor can we deny that by the ignominy brought upon them by the adultery they are exasperated and are driven insane, and a most just sense of anger is excited in their hearts. for this grievance surpasses all others beyond comparison, and hence is worthy of the greater pity, according to the words of the satirist [_juv._ x. 314]: "this wrath exacts more than any law concedes to wrath." papinianus also well acknowledges this [citation], where we read: "since it is very difficult to restrain just anger." for these reasons, authorities hold that a just grievance should render the penalty more lenient even in premediated crimes; because the sense of "just grievance does not easily quiet down, or lose its strength with the flight of time, but the heart is continually pierced by infamy, and the longer the insult endures, the longer endures the infamy, yea, and it is increased." [citations.] and this drives one on the more intensely, because with greater impunity, as i may say, wives pollute their own matrimony and destroy the honour of their entire household. in ancient times, while the _lex julia_ was in force, wives who polluted their marriage-bed underwent the death penalty. [citations.] likewise it was so ordained in the holy scriptures; for adulterous wives were stoned to death, gen. 38; lev. 20, 10; deut. 23, 22; ez. 16. the solace drawn from the public vengeance quieted the anger and destroyed the infamy. then the husband, who was restored to his original freedom, could take a new and honest wife and raise his sons in honour. but now, in our evil days, there is a deplorable frequency of crime everywhere, as the rigour of the sacred law has become obsolete. and since wives who live basely are dealt with very mildly, the husband's condition would indeed be most unfortunate if either he must live perpetually in infamy, or must expiate her destruction, when she is slain, by the death penalty, as matthã¦us well considers. [citation.] therefore, when it is claimed that the husband shall escape entirely unpunished, it is necessary that the wife be killed in the very act of discovered sin. but when the question is as to whether or not a husband may be punished more mildly than usual when driven to wife-murder for honour's sake, it makes no difference whether he kill her immediately or after an interval. [citation.] nor does this opinion lack foundation in the very civil law of the romans, for martian [citation] asserts that a father who had killed his son while out hunting, because he had polluted his stepmother with adultery, was exiled. nor had the father found him in the very act of crime, but slew him while out hunting, that is with a pretence of friendliness and by dissimulating his injury. accordingly he was punished, but not with the usual penalty; for he had killed his son, not in his right as a father, but in the manner of a robber. hence we can infer that not the killing, but the method of killing was punishable, as we may deduce from bartolo. [citations.] still further, it is well worthy of consideration that one may kill an adversary with impunity, for the sake of his personal safety, but he must do so immediately and in the very act of aggression, and not after an interval. for the life of one slain may not be recovered by the slaying of the murderer. accordingly, whatever violence may follow upon the first murder becomes vengeance, which is hateful and odious to the law; for the jurisdiction of the judge is insulted by depriving him of the power of publicly avenging murder. but if by the death of the slayer the one slain could be called back to life, i think there is no doubt that any one could kill the said slayer; for then such an act would not be revenge, but due defence, leading toward the recovery of the life that had been lost. but even when we are dealing with an offence and injury which does not affect the person of the one injured, it is likewise permitted that one who has been robbed may, even after an interval, kill the thief for the recovery of the stolen goods, provided every other way to recover them is precluded. likewise, one offended in his reputation should be permitted at all times to kill the one injuring him; for such an act may be termed, not the avenging of an injury, but the re-establishing of wounded honour, which could be healed in no other way. [citations.] furthermore, as i have said, when one is discussing the subject of self-defence, he is dealing with an instantaneous act; hence the anger conceived therefrom ought to quiet down after a while, according to the warning of st. paul, eph. 4: "let not the sun go down upon your wrath." but when we are dealing with an offence that injures the honour, this is not merely a momentary matter, but is protracted, and indeed with the lapse of time becomes the greater, as the injured one is vilified the more. therefore, whensoever the murder follows it is always said to have been committed immediately. [citation.] relying upon these and other reasons, most authorities affirm that a husband killing his adulterous wife after an interval, but not found in licentiousness, is to be punished indeed, but more mildly and with a penalty out of the ordinary. [citations.] caball testifies that this has been the practice in many of the world's tribunals. calvinus gives other cases so decided. [citation.] and cyriacus, who speaks in worse circumstances, adduces numerous other cases, and the authorities recently cited offer many more. this lenient opinion is the more readily to be accepted because, as i claim, the deed about which we are arguing does not also carry with it (as the fisc holds) attendant circumstances demanding such a rigorous penalty. [first] the taking of helpers to be present at the murders [is not such a circumstance]; because he could lawfully use the help of companions to provide more safely for his own honour by the death of his wife. [citations.] [secondly] the crime is not raised to a higher class because he led with him helpers at a price agreed upon; for what is more, and is far more to be wondered at, a husband can lawfully demand of others the murder of an adulterous wife, even by means of money, as the following indisputably affirm. [citations.] likewise it does not at all disturb [our line of argument] that count guido might have killed his wife and the adulterer when they were caught in the very act of flight at the tavern of castelnuovo, but that he preferred rather to have them imprisoned, seeking their punishment by law, and not with his own hand. we deny that he could have safely killed both of them, inasmuch as he was alone, nor could he attack them, except at the risk of his own life. because the lover was of powerful strength, not at all timid, and all too prompt for resisting, since, in the word of one of the witnesses in the prosecution for flight, he was called _scapezzacollo_ [cut-throat]. nor is it credible that, unless he had been fearless and full of spirit, he would have ventured upon so great a crime, and would have dared to participate in her flight, and to accompany the fugitive wife from the home of her husband. and this fact is more clearly deducible from one of his letters, in which, after urging francesca to mingle an opiate in the wine-flasks for the purpose of putting her husband and the servants to sleep, he adds that if they find it out she should open the door; for he would either suffer death with her or would snatch her from their hands. these things indicate both courage and audacity. and though the wife is a woman, that is a timid and unwarlike creature, nevertheless francesca was all too impudent and audacious, whether because of her hatred for her husband or on account of her anger at the imprisonment of her lover. for she drew a sword upon her husband in the very presence of the officers who were about to arrest her. and to prevent her from going further, one of the bystanders had to snatch it from her hands. therefore, before their imprisonment, guido could not put into effect what he had had in mind and what he could lawfully do, because he was alone and his strength was not sufficient. then when she had been taken to prison, and afterwards was placed in safe keeping, it was impossible for him to vindicate his honour. but when at last she had left the monastery and had gone back to the home of pietro and violante, he took vengeance as soon as he could. therefore we hold that he killed her in the very act, as it were, and immediately. in sanfelicius [citation], we read of a case where a husband, though he could have killed his wife immediately, did not do so, but craftily redeemed himself from his disgrace by slaying his wife as soon as possible. and giurba also speaks of a case where the argument is concerning an injury that was not personal, but real, as was said above. guido saw to her capture, and insisted that she be punished, lest she continue her adultery and viciousness, being powerless to do anything else, because his confusion of mind, his helpless fury, and his sense of shame led him unwisely into not taking the law into his own hands and recovering his lost honour. he indeed lodged complaint, but it was because he could not kill her. nor would his ignominy have been wiped out nor his infamy have been destroyed by her imprisonment and punishment. but when, indeed, after her imprisonment he was still more shut out from noble company, his injury ever became the more acute, and it stimulated him the more strongly to regain his own reputation. but his bitterness of mind was increased especially at hearing that she had gone back to the home of pietro and violante, who had declared that she was not their daughter, but the child of a dishonest woman; hence his injury was increased by her staying in a home which he suspected, as is said a little further on. accordingly the same cause kept urging him after her departure from the monastery, as had done so before her imprisonment and the appeals made by count guido. it makes very little difference that francesca was staying in the home of violante, which had been assigned to her as a safe prison with the consent of guido's brother. for what would it amount to even if with the consent of guido himself she had been taken from the monastery (yet we have no word of this matter in the trial). for guido could make that pretence to gain the opportunity of killing her for the restoration of his honour. nor would such dissimulation increase the crime, especially to the degree of the ordinary penalty, since it is certain that the husband may kill a wife stained with adultery without incurring such penalty. yet a heavier or lighter penalty is inflicted, just as more or less treachery accompanies the murder, as matthã¦us testifies it was practised in the senate of matrinumsis. [citation.] nor is the attendant circumstance of the place assigned as a prison worthy of consideration, as if the custody of the prince had been insulted; for one is not said to be in custody when he is merely detained in a place under security that he will not leave it. [citation.] furthermore, this objection falls utterly to the ground, because the circumstance of such a place does not increase the crime, whenever it is committed by one having provocation or for the repelling of an injury. and [the following authorities] hold thus in the more serious case of a crime committed in prison. [citations.] furthermore we do not believe, from what is said above, that the penalty can be increased because of the murder of pietro and violante, since the same injured honour, which impelled count guido to kill his wife, forced him to kill the said parents. and now may the ashes of the dead spare me if what i have urged above, and what i am about to say, may seem to disturb their peace! neither the flame of hatred nor the impulse of anger (which are far from me) have suggested these charges; but the demands of the defence, which i have assumed without a penny of compensation, compel me to employ every means leading to the desired end. i have said, and i think not without due reason, that the accused sprang forward to the death of both of them, moved simply by an immediate injury to his own reputation. for a few months after the marriage contracted with francesca, whom they had professed to be their daughter, they had not blushed to declare that she was not such. hence there is an inevitable dilemma. either [_first_] she was in deed and truth their daughter, and then we must acknowledge that in afterward denying her parentage they had inflicted the greatest injury upon the honour and reputation of the accused; for they had conceived strong hatred and malice against him. hence they did not hesitate to disgrace their own daughter, in order that they might bring upon him the infamy of having married the daughter of a vile and dishonest woman. this is indeed a fact, that whoever knows count guido supposes he has married a girl, not merely of rank unequal to his own, but even of the basest condition, and this greatly injures the reputation of his entire household. or else [_second_] francesca was indeed conceived of an unknown father and born of a dishonest harlot. and it cannot be denied, that in that case he suffered even greater injury, which branded him with a mark of infamy; both because of her birth and from the fact that daughters are usually not unlike their mothers. cephalus [citations], where we read: "from such mingling with harlots it is to be supposed that the people become degenerate, ignoble, and burning with lust." and would that experience had not taught us this fact! the unfortunate man believed he was marrying the daughter of pietro and violante, born legitimately, and yet by the contrivance and trickery of this couple he married a girl of basest stock, conceived illegitimately by a dishonourable mother. from this fact alone the quality of those parents can be inferred, who, for the sake of deceiving those lawfully entitled to the trust-moneys, had made most vile pretence of the birth of a child, entirely unmindful that they laid themselves liable to capital punishment. [citations.] it will not, therefore, be difficult to believe what francesca reveals in her letter to her brother-in-law, that the abovesaid couple, in spite of the fact that she was well treated, kept instigating her daily to poison her husband, her brother-in-law, and her mother-in-law, and to burn the home. and though these crimes are very base, they gave her still worse counsel, even by her obligation to obey them; namely, that after their departure from arezzo, she should allure a lover, and leaving her husband's home in his company, should return to the city. in her obedience to their commands, this daughter seemed indeed all too prompt. who then will deny that such reckless daring, wherefrom a notorious disgrace was inflicted upon the entire household of the accused, ought to be attributed to the base persuasion of the said couple? nor was it difficult to persuade that girl to do what she was prone to by inborn instinct and by the example of her mother. it is not my duty to divine why that couple so anxiously desired the return of francesca to their home. but i cannot persuade myself that they were moved by mere charity, namely, that she might escape ill-treatment. for francesca, in the said letter, acknowledges that she is leading a quiet life, and that her husband and the servants are treating her very well, and that what she had laid before the bishop had been the falsehood of the said couple. i know furthermore that if a husband have knowledge of the adultery of his wife and keep her in his home, he cannot escape the mark and penalty of a pimp. [citations.] if, therefore, as the said couple declare, francesca was not their daughter, why did they receive her so tenderly into their home after her adultery was plainly manifest? why did they, as i may say, cherish her in their breasts, not merely up till the birth of her child, but even till death? and i wish i could say that her love affairs with the banished [priest] were not continued there! for at his mere name, after the knocking at the door, as soon as they heard that some one was about to give them a letter from the one in banishment, immediately the door was opened and guido was given an entry for recovering his honour. if, indeed, the said couple had been displeased with the adultery of francesca, they would, without doubt, have shuddered at the name of the adulterer, and would have cut off every way for mutual correspondence. therefore it is most clearly evident that the cause of wounded honour in the accused had continued, and indeed new causes of the same kind had arisen, all of which tended toward blackening his reputation. nor does it make any difference that the accused may have had in mind several causes of hatred toward both francesca and the comparini. for if these are well weighed, they all coincide with, and are reduced to, the original cause, namely, that of wounded honour. however that may be, when causes are compatible with one another, the act that follows should always be attributed to the stronger and more urgent and more acute. [citations.] and on the point that when several causes concur, murder is to be referred and attributed to injured honour, and not to the others: [citations.] therefore i think that any wise man ought to acknowledge that guido had most just cause for killing the said couple, and that very just anger had been excited against them. this was increased day by day by the perfectly human consideration that he would not have married her unless he had been deceived by that very tricky couple. and to what is said above we may add that either the child born [of pompilia] was conceived in adultery, as the accused could well believe, since he was ignorant of the fact that his wife was pregnant during her flight; and then we cannot deny that new offence was given to his honour, or the old one was renewed, by the said birth; or the child was born of his legitimate father; and who will deny that by the hiding of the child, guido ought to be angered anew over the loss of his son? and the great indignation conceived from either cause (the force of which is very powerful) is so deserving of excuse that very many atrocious crimes committed upon the impulse of just anger have gone entirely unpunished. [citations.] the following text [citation] agrees with this, "nevertheless, because night and just anger ameliorate his deed, he can be sent into exile." [citations.] and not infrequently, in the contingency of such a deed, men have escaped entirely unpunished, who, when moved by just anger, have laid hands even upon the innocent. for a certain smyrnean woman had killed her husband and her son conceived of him, because her husband had slain her own son by her first marriage. when she was accused before dolabella, as proconsul, he was unwilling either to liberate one who was stained with two murders, or to condemn her, as she had been moved by just anger. he therefore sent her to the areopagus, that assembly of very wise judges. there, when the cause had been made known, response was given that she and her accuser should come back after a hundred years. and so the defendant in a double murder, although she had also killed one who was innocent, escaped entirely unpunished. [citation.] likewise, a wife who had given command for the murder of her husband because of just anger from his denial of her matrimonial dues was punished with a fine, and a temporary residence in a monastery, as cyriacus testifies. [citation.] such pleas might indeed hold good whenever the accused had confessed the crime, or had been lawfully convicted, neither of which can be affirmed [in our case]. but much more are they to be admitted, since he confesses only that he gave order for striking his wife's face, or for mutilating it; and if those he commanded exceeded his order, he should not be held responsible for their excess. [citations.] his fellows and companions give his name, and claim that he had a hand in the murders. and in spite of the fact that the fisc claims they have hidden the truth in many respects, equity will not allow that certain matters be separated from their depositions and that these be accepted only in part; for if they are false in one matter, such are they to be considered in all. it would be more than enough to take away from those depositions all credence that, under torture in his presence, they did not purge that stain. [citations.] it has very justly been permitted that in defence of this noble man, i should deduce these matters, as they say, with galloping pen. the scantiness of the time has not suffered me to bring together other grounds for my case; these could be gathered with little labour, and possibly not without utility. yet i believe that all objections, which can be raised on the part of the fisc, have been abundantly satisfied. giacinto arcangeli, _procurator of the poor_. [file-title of pamphlet 2.] _by the most illustrious and most reverend lord governor in criminal cases_: _roman murder-case_ _on behalf of count guido franceschini and his associates, prisoners, against the court and the fisc._ _memorial of law by the honourable advocate of the poor._ _at rome, in the type of the reverend apostolic chamber, 1698._ romana homicidiorum [pamphlet 2.] most illustrious and most reverend lord governor: from the "prosecution [for flight]," which was brought in this very tribunal, and by his honour, lord venturini, judge in this present case, there is more than satisfactory proof of adultery committed by francesca pompilia, wife of count guido franceschini, a nobleman of arezzo, with the canon caponsacchi. with caponsacchi the parents of this same francesca pompilia entered into conspiracy, although they were living here in the city. and after she had given an opiate to count guido and his entire household, she fled that same night from the city of arezzo toward rome. consequently, the canon, as may be remembered, was banished to civita vecchia, with a statement of his criminal knowledge of that woman in the said decree of condemnation. this adultery is also evident from other matters of evidence deduced by the procurator of the poor. there remains, accordingly, no room to doubt it, but rather their adultery may be said to be notorious here in the city, in the country of count guido, and throughout all etruria. since this is established, we can safely assert that even if guido had confessed that he slew his wife with the complicity and help of blasio agostinelli of the town of popolo, domenico gambassini of florence, francesco pasquini of the castle of monte acuto, and alessandro baldeschi of tiferno, he should not therefore be punished with the ordinary death penalty, but more mildly. this is in accord with the decision of emperor pius as related by ulpian [citation] and by martian. [citation.] for in both of them it is said that a man of low birth is sent into perpetual exile, but that a noble is banished only for a limited time, but the crime of a husband who is moved by just anger is overlooked, as this same ulpian confirms [citation], since it is most difficult to restrain such anger. [citation.] yet we should not consider it necessary that the adultery of the wife be conclusively proved (as it really is) in order that there be room for mitigating the said penalty. for it would be enough, if we were dealing with a case of mere suspicion: glossa, etc. "a man who had killed his son because he believed the young man had lain with his stepmother, as was true, was deported to an island." [citations.] dondeus also speaks of a man who had boasted that he wished to ruin the sister of the one who killed him, which is said to have aroused just suspicion and fear for the loss of honour sufficient to free the slayer from the ordinary penalty of murder. [citations.] nor is it true, as some authorities affirm, that the husband must take the wife in very adultery, and kill her immediately; in which case, they say the abovesaid laws hold good, but that it is otherwise if the murder is done after an interval. [citations.] for the contrary opinion is the truer, the more usual, and the one to be observed in practice, as marsilius well advises, where he speaks in defence of a certain nobleman who had killed another person after an interval. the man slain had betrothed his sister by promise and had kept her for three months, and had then rejected her. because of this, a great injury and much infamy were inflicted upon his family and the entire kin. marsilius then adduces the abovesaid laws, which pronounce concerning a husband who kills his adulterous wife; and bertazzolus offers the case of one who had killed his adulterous wife and had afterward, in his own defence, proved the adultery by the double confession of the same wife. claudius jr. testifies that the murderer was banished for a time by the praetor of mirandola, and after the lapse of several months he was recalled by the duke of mirandola. [citations.] afflitto cites the decree of the kingdom, beginning _si maritus_, which concedes impunity to a husband who kills his wife and the adulterer both, in the very act of adultery, and without any delay. he then says that if both of these requisites are not present, the husband is excused in part, but not entirely; and so is punished more mildly. and in no. 2 he gives the reason; because whenever one commits a crime, under impulse of just anger, the penalty should be somewhat moderated, according to the aforesaid text. [citations.] matthã¦us [citation] adduces the excellent words of theodoric as quoted by cassiodorus [citation], where we read: "for who can bear to drag into court a man who has attempted to violate his matrimonial rights? it is deep-seated even in beasts that they should defend their mating even with deadly conflict, since what is condemned by natural law is hateful to all living creatures. we see bulls defending their cows by strife of horns, rams fighting with their heads for their wethers, horses vindicating by kicks and bites their females; so even these, who are moved by no sense of shame, lay down their lives for their mates. how then may a man endure to leave adultery unavenged, which is known to have been committed to his eternal disgrace? and so if you have made very little false statements in the petition you offer, and if you have indeed only washed away the stain to your marriage-bed by the blood of the adulterer, taken in the act, and if you are looking back from your exile, which was evidently inflicted not by reason of a bloodthirsty mind, but because of your sense of shame, we bid you return from your exile; since for a husband to use the sword for the love of his sense of honour is not to overthrow the laws, but to establish them." dondeus says this interpretation is clearly proved by the authority of a glossa in the chapter: _ex litterarum_. [citation.] for in the text, when these words are used: "your wife taken in adultery," a glossa explains the word "taken" as equal to "convicted." marta says this opinion is much more just and equitable, and is commonly held. and muta (_dec. sicili㦠61_) in the end offers a decision of the supreme court of the kingdom, by which a husband was condemned to the galleys for seven years. this was on account of the accompanying circumstances; for he had had his wife summoned outside of the city walls by his son, and there had killed her; and afterward her body was found to have been devoured by dogs. dexartus testifies that it was thus decided in sacred royal court, in condemning a husband only to exile. sanfelix also tells us that certain noble young men, who had killed their wives, after an interval, because of strong suspicion of adultery, were absolved by the royal council of naples, in view of the quality of the persons concerned. in their favour, authorities of the highest rank had written, whose allegations this same author places under the said decision. and although some of these young men were condemned to the oars, he said that this punishment had been imposed because of the mutilation of the privates which followed; because those who do such things are considered enemies to nature. (_panimoll. dec. 86._) and caldero, although in the preceding numbers he inclined toward an opinion contrary to ours, came over to our side when he saw that matthã¦us held that opinion. and the reason is very evident, for whenever such an injury is suffered by fine natures, especially among the noble class, it is ever present with them, and continually oppresses the heart, and urges it on to vengeance for the recovery of lost honour, as giurba well notes. [citations.] for this reason, it has always and everywhere been held in case of murder committed for honour's sake that there is no place for the ordinary death penalty, which should be mitigated at the discretion of the judge. and this rule has been followed, when the murder was committed after an interval, and even after a long interval. for the abovesaid reason, both grammaticus and gizzarellus affirm and hand down this opinion. the latter says that it has always been so adjudged by the sacred council of naples, and that this opinion has always been accepted by our ancestors. [citations.] it was so judged by the high court of the vicar, although it was dealing with a murder committed after two years, and by craft, by two brothers upon the adulteress in the presence of her sister's cousin. cyriacus also speaks of the murder of a husband by his wife, because he was keeping a mistress and was contriving against her honour; and there he said that since just anger has a long continuance, because of its extreme bitterness, vengeance should always be said to follow immediately. [citation.] another reason also is at hand, which is considered by the authorities, namely, that an injury, whereby the honour is hurt, is not personal, but real, and therefore can be resented at any time whatsoever, even after the lapse of a very long time, as giurba holds in our circumstances. [citations.] we have therefore a great many standard authorities who affirm, for most vital reasons, that murder committed, even after an interval, upon the person of the wife or of any one else, for honour's sake, ought not to be punished with the ordinary death penalty, but more mildly. furthermore, these authorities bear witness that the matter has been so judged in the tribunals with which they are acquainted. no attention therefore should be paid to the opposite opinion held by farinacci [citation]; for we plainly see that he speaks contrary to the common and usually accepted opinion in tribunals. [citation.] still further it should be noted that the same author in _cons. 66, num. 5_, holds the very opposite, basing his opinion especially upon a text in the law of emperor hadrian [citation], where a father had killed his son, who was not found in the act with his stepmother, but while out hunting and in the woods, that is, after an interval. and he was punished not with the death penalty, but by deportation. several of the above-cited authorities offer the decision of this text likewise in corroboration of this opinion of ours. our point is also proved by the fact that this same author in _quaest. 121_ is rather doubtful; and there he acknowledges that for this opinion of ours the reason given above is very strong, namely, that "injured honour" and "just anger" always oppress the heart. and so he says in such a case one should note the sense of the text in the law _non puto_ [citation], where modestinus, doctor of law, says that he thinks that one would not make a mistake who in doubtful cases should readily give this response against the fisc; and farinacci cites him so speaking. but one should be on his guard against what this same farinacci asserts: namely, that this opinion of his, so far as he could see, was the one more approved by the sacred court. for since this point of doubt, as he himself confesses, had not then been advanced, he could not judge what would be the outcome if it had been proposed. and indeed the wisest of the said high authorities do not give their assent to his opinion, but rather hold the contrary, which is favourable to ourselves, as is seen in the decisions they have given from time to time. for it was so held on march 25, 1672, in the case of carolo falerno, who was condemned to an unusual penalty for the murder of francesco domenici; for he had found him coming out of a church, to which he had warned him not to go, as he was suspicious that the one slain was following his wife. in like manner with carolo matarazzi, august 15, 1673, who killed his wife on the foolish grounds that he suspected her of illegitimate conception because of the absence of her menses; but this suspicion did not indeed correspond with the truth. and in law a matter may be even more mistaken and less observed by human intellect. [citations.] likewise in a murder committed treacherously with an arquebus upon the person of tomaso bovini by francesco mattucio of monte san giovanni, a person of the very lowest class, merely because of the attempted dishonour of his sister. the attempt of the one killed was proved by two witnesses on hearsay of the one slain. on september 4, 1692, the penalty of life sentence to the galleys, to which the said mattucio had been convicted on strongest proofs on the preceding july 12, was moderated by the sacred court, before the right reverend father ratta, of blessed memory. with good right, therefore, this same farinacci is expressly confuted and overthrown by matthã¦us. [citations.] this opinion of ours is to be accepted the more readily when we consider that the husband is more stirred by the adultery of his wife than by the murder of his son. [citations.] yes, and even more than by the defilement of his daughter. [citation.] so that if a husband does not complain of the adultery of his wife, he is considered a pimp, as paschal holds, where we read recently: "adultery of the wife gives offence not merely to the husband, but blackens and stains the entire kin." [citations.] that this happened in the present case is plainly evident; for abate paolo, brother of guido, was compelled not only to leave the city, in which he had lived for many years with highest praise, but even to pass out of italy, because he was pursued undoubtedly by the greatest disgrace on account of this adultery. while he was carrying on guido's cause in the courts, he moved the laughter and sneers of almost all sensible and wise men, not to say of the very judges themselves, as usually happens in these circumstances. [citations.] nor would it stand in the way of what we have said above, if without prejudice to the truth, we should admit (as the fisc claims) that count guido killed his wife with the complicity and aid of the said blasio, domenico, francesco, and alessandro, assembled for that purpose; for he could do that in order to take vengeance upon her more easily and more safely. [citations.] [nor would it stand in our way if we admitted] that he had assembled the said men by means of money. [citations.] nor does this plea of injured honour cease with regard to the murders of the said father-in-law and mother-in-law; for since their conspiracy in the adultery of their daughter is established, they themselves were among the causes of the injury and ignominy which resulted therefrom to the prejudice of the honour and reputation of count guido, their son-in-law, and her husband respectively. therefore, these murders likewise ought to be punished with the same penalty as the principal, according to texts in the law _qui domum_. [citations.] and so they gave cause enough to count guido to take vengeance on them. it is to be added, furthermore (as will be proved indeed, and as count guido himself has asserted in his testimony), that they themselves did another injury to his reputation by means of the civil suit which they brought on the grounds of the pretended birth of francesca pompilia; and not merely here in the city, but also in his own country, they distributed the most bitter libels, which were added to this same lawsuit. hence it cannot be denied that count guido for this reason had conceived a just anger and provocation, and that he had just cause for taking vengeance. this is according to the text [citation], where alexander the third wrote to the bishop of tournay that a certain woman who had killed her child should be placed in a monastery, because she was reproached by her husband with the accusation that it had been conceived in adultery. for in crimes where anger does not entirely excuse, still the delinquent who kills in anger conceived from just grievance is somewhat excused. [citation.] and this is true in spite of the fact that the fisc may claim that the penalty given in the constitution of alexander has been incurred. for in the present case the crime cannot be said to have been committed on account of hatred aroused by the lawsuit; for in that suit count guido had gained a favourable sentence from judge tomati, which was sanctioned by the supreme tribunal of justice. but the crime was committed indeed because of his just indignation. and this arose, first, from the ignominy growing out of the said pretence as to her birth; second, from the provocation given by the comparini (now slain) in issuing and distributing the said papers; and, third, from their conspiracy in the flight of his wife. for indeed this constitution of alexander does not apply where no guile is present and where some provocation has been given by the one hurt. farinacci very fully affirms this throughout _cons. 67_, where in the end he places the complete decision of the sacred court. in any case, since with count guido two causes for committing crime concurred: one the aforesaid matter of the lawsuit, another wounded honour because of the lawsuit brought and the flight in which they conspired, wherefrom the adultery had followed, the cause of honour should be given attention, as it is the graver and consequently the more proportionate to the crime. [citations.] likewise the penalty should not be increased in view of the place of the crime, because the defence of one's honour is so justifiable, and the anger and commotion of mind arising therefrom is so just, that reason for it cannot be demanded, as merlin pignatelli [citation] holds, because giovanni francesco de carrillo [citation] speaks of an insult offered in prison. and no. 29 approves the decision for the reason that greater reverence is due to churches and other places consecrated to god, and in which the king of kings and lord of lords dwells in essence; and yet one who commits crime in them from just anger and grievance is excused; for he asserts that all canonists and other authorities there alleged by him unanimously acknowledge this. more readily, therefore, should this conclusion follow in our case, since the said francesca was not staying in a formal prison, but was merely keeping her home as a prison, under security of 300 scudi, that she would not depart therefrom; because one who has given bond and has sworn not to leave a place is neither in chains nor in custody. [citations.] lucano holds that there are differences between being kept in chains and being committed under bond, etc. and farinacci holds that the word "custody" should be more strictly interpreted than the word "chains." [citations.] even if, therefore, count guido had confessed that he killed his own wife, his father-in-law, and his mother-in-law, with the complicity and aid of the above-named helpers, he should not be punished with the ordinary penalty, for reasons given above. and much more readily should we follow this opinion since we can see that he confessed only that he gave commands for mutilating his said wife (_ad sfrisiandum_), if i may use the word of the authorities. in this case he is not to be held responsible for the subsequent death of his wife and of the others. decian, _cons. 622, no. 4_, in this very condition, holds that one giving orders can be punished only for the manner of committing the crime for which bodily punishment cannot be inflicted. thus far the fisc has been unwilling to rest satisfied with such a qualified confession. yet since he claims the right to torture the accused for proving some further pretended truth, the torture shall be simple; nor can the torment of the vigil be inflicted; because the constitution given out by pope paul fifth, of sacred memory, for the reformation of the courts of the city, stands in the way of that. this is included among his constitutions as the 71st. by this it was decreed that such torment could not be inflicted unless these two features jointly concur: namely, that the crime be very atrocious and that the accused be burdened with the strongest proofs. [citations.] but a crime is said to be "very atrocious" provided it is one for which a penalty more severe than mere death should be inflicted, such as useless mutilation, burning, and the like. _farinaccius qu. 18, num. 68_, etc. and such a death, as ignominious and infamous, has no place with the persons of nobles. [citations.] hence it is much less so here, because we are not arguing about the death penalty even, which does not enter into the present case for reasons given above. and gabriellus speaks to this effect on the point that such a crime may not be said to be qualified. what has been said in favour of guido, the principal, also stands in favour of the aforesaid blasio, domenico, francesco, and alessandro; because they cannot be punished with the ordinary penalty, but only with the same penalty as the principal. [citation.] baldo cites a case under the statute which shows that one under bann for a certain crime cannot be killed save by the enemy who had him put under bann; and he says that if the enemy has him assassinated, the assassin is not punished. and he gives this reason, that what is permissible in the person of the one giving the order should be held as permissible in the one to whom orders are given; and he says it had been so held in a case under that law. castro [citation] holds that when one is permitted under the statute to take vengeance upon a person who has given him offence, he is also permitted to assemble his friends, to afford him aid, and that they shall go unpunished, just as the principal does. he also asserts that jacobus butrigarus [citation], held thus, in _cons. 277_, where he speaks of the case of a husband who had assembled men to beat one who had wished to shame the modesty of his wife, he ordered his wife to pretend to give ear, and when the intriguer had come, murder was committed. and he says that men brought together in this way should be spared, because such an assembly was permissible for the husband, who was principal. [citation.] jason holds that in any vengeance permitted by law, one cannot demand it of another; yet he to whom it is permitted may take fellows and accomplices with him for the same act, and if they kill in company with him they shall not be held to account for the murder nor for the aid they have given; and he says that this opinion should be much kept in mind. cã¦pollinus also illustrates this in several cases, especially in that of certain men who had killed one keeping the company of the sister of the man who had assembled them; and he says that they should not be punished, just as the principal was not, and he gained his point so that it was thus adjudged. [citations.] soccini also holds it should be thus adjudged, unless one wishes to say that they should be punished with a slighter penalty than the principal, as often happens in the case of auxiliaries. and he speaks in our very circumstances of men assembled by a husband for the sake of killing one who had polluted his wife. in these same circumstances, see also parisius. [citation.] carera [citation] speaks of a father who had his daughter (who had been keeping bad company) killed by an assassin; and he says that neither the father nor the murderer are to be held to account. [citation.] marsilius also, after placing in the very beginning this principle that when one matter is conceded all seem to be conceded which lead thereto, draws inference therefrom for the present case and many reasons for it are adduced. cassanis also [citation] holds that men assembled in this way are not held responsible either for the murder or for the aid furnished, if they do the killing in the company of the principal. and in these same circumstances garzonus speaks, decision 71, throughout. nor does it stand in the way of our reasoning that one of the aforesaid defendants had inflicted wounds with his own hands, or had killed one of the victims; as francesco has confessed that he inflicted four or five wounds in the back of francesca pompilia. even in these circumstances the rule holds good that auxiliaries shall not be punished with greater penalty than the principal. and so affirm individually the following authorities among those recently cited. [citations.] and garzoni testifies that it was so adjudged in the said decision 71, where we read: "or he may have with himself associates for this act," and if they kill the adulterers in company of the principal they are held to very slight account, either for the murder or for the aid given, and it was so adjudged. and even in the more extreme case of one killing by assassination, and consequently in the absence of the principal, this is the opinion of baldo [citation], where we read: "and now it is inquired whether an assassin is ever punished, and i say he is not; because what is permitted in the person giving command is also permitted in the person commanded." castro [citation] also says: "because what i can do of myself i can have done through my helpers who are necessary for that purpose." and afflitto [citation] says: "either with one's own hands, or by help of another, even with the influence of money, and thus by an assassin; for baldo says on this same point: 'what is permitted in the person giving command is also permitted in the person commanded'; and he witnesses that it was so adjudged." [citations.] marta [speaks as follows]: "much more so because authorities affirm that a husband, who on account of fear cannot kill the adulteress, may even by the help of money demand of another that he kill her, and neither of them is then to be punished." but whatever caballus [citation] may say to the contrary, he bases his opinion upon castro and rollandus. castro, however, favours our opinion, as is to be seen in no. 3. rollandus should not be given heed; for when he offers this very same opinion about the statute which permits any one to take vengeance; and says that since this kind of permission is personal, it cannot be passed on from one to another, this opinion of his is expressly contrary to the teaching of baldo, castro, jason, and others, whom we have alleged above in paragraph _quae dicta sunt_. and since this opinion of ours is milder and more equitable, it should hold good, as jason decides on this point. [citation.] nor can the punishment be increased because of the alleged carrying of prohibited arms; because the latter offence is included then with the real crime. [citations.] in guazzin we read that this is so, even if for the carrying of the arms a greater penalty would be inflicted [than for the principal offence]. and so, whenever it is evident that the crime has been committed for honour's sake and for a just grievance, as in the present case, the carrying of the arms may go unpunished, or at least it should not be punished with a more severe penalty than should be imposed for the principal crime itself. thus policardus [citation] well affirms when speaking of arms which are considered treacherous by the banns. these claims should hold good more readily as regards domenico and francesco, who are foreigners, and are therefore not included in any of the apostolic constitutions or banns, which prohibit the bearing of arms under very heavy penalties. [citations.] especially since they are minors, as is made clear in the course of the trial, pp. 35 and 304; in which case they are likewise not bound by these constitutions and banns, which give judgment upon the crime of a minor. for the power to make and establish such regulations was lacking in the prince or public official concerned. [citations.] such are the matters which, in view of the excessive scantiness of time, i have been able to collect in discharge of my duty for the defence of these poor prisoners. nor do i at all distrust that my lords judges, when they see that too little has been said, will wish to supply and offer what is lacking out of the high rectitude for which they are distinguished. for this would be quite in accord with the decree of emperors diocletian and maximian, as related. [citation.] and they will follow the advice of hippolitus marsilius, famous in criminal proceedings, who says that a judge is obliged by his office to seek out grounds of defence for the accused. [citations.] desiderio spreti, _advocate for the poor_. [file-title of pamphlet 3.] _by the most illustrious and most reverend lord governor in criminal cases_: _roman murder-case._ _in behalf of blasio agostinelli and his associates, prisoners, against the fisc._ _memorial of fact and law._ _at rome, in the type of the reverend apostolic chamber, 1698._ romana homicidiorum [pamphlet 3.] most illustrious and most reverend lord: the plea of injured honour which redeems count guido from the rigorous penalty that should follow for the commission of murders, likewise urges mitigation of the ordinary penalty for blasio and the associates who had hand in the murder, even though it may be pretended that they were paid thereto. for it is taken for granted that we are dealing with a case far removed from assassination, because of the presence of a person who had real cause for vengeance, as the following authorities think in common. [citation.] there has been the strongest controversy among authorities as to whether a father or husband may demand of any one except his son the murder of his daughter or of his adulterous wife. and divided on the two sides of the question, they have contended strongly. [citation.] yet the majority are in favour of the affirmative and of the milder sentence; and often, in the event of such a murder, it has evidently been so adjudged. [citation.] but since this question lies outside of our line of argument, it would be vain and quite useless labour to take it up, nor is time to be wasted when we are so hard pressed for it. for we are evidently dealing with auxiliaries, assembled for committing homicide, according to the thought of the fisc. hence the conditions of a mere "mandatory" are not applicable; because of the immediate presence of the principal in the crime; for when he also lays hand to the crime, those who do likewise are not called mandatories, but auxiliaries and helpers. [citations.] furthermore, just as guido himself is freed from the death penalty because of the said plea of injured honour, so likewise are his allies and auxiliaries freed, as the following authorities unanimously assert. [citations.] those who are cited in support of the opposite view do not pronounce opinion in our peculiar circumstances, but speak of a husband demanding of another the murder of his adulterous wife, and not of auxiliaries who do the killing in company with the husband, as in our case. [citations.] in such contingency, auxiliaries who give aid to a husband while killing his adulterous wife have always enjoyed the same indulgence as the principal himself; that is, they always escape the capital penalty, and indeed go entirely unpunished. [citations.] nor does the distinction of caballus make any difference, where he holds that auxiliaries may indeed assist with impunity a husband or a father killing a wife or daughter respectively, in order that these may kill the more safely; but that they cannot lend a hand and actually kill; for in the latter case they are to be held accountable for the murder. because, for foundation in making such a distinction, he plants his feet upon paolo de castro. [citation.] but this is so far from proving his purpose that it rather turns back on him remarkably to his own injury. for after the latter sets before himself this kind of a difficulty, under no. 2, he adds: "but i hold entirely the contrary: that neither the one who did the killing nor he who made the assembly (as it may be called) are to be held for the murder for the purpose of inflicting the capital penalty." this is also true in the council of rollandus a valle. [citations.] may that learned authority pardon me; for even if he does attempt to confute paolo de castro in the said 154th council, which is in our favour, under the pretext that he speaks contrary to the common opinion, this claim does not suffice in view of the above-cited authorities. and if there were time, i would demonstrate this more clearly. furthermore, rollandus alleges parisius, _cons. 154, lib. 4_. but he could well omit that, because no. 22 proves expressly contrary to him on its very face, where it says: "under our very conditions was given that excellent decision of paolo de castro in the before-cited council. in stronger circumstances (which also include the present case) he concludes that those who knew of, or were present, or were associated with a husband in the act of the said murder, and who furnished him aid, ought not to be punished with a greater penalty than the principal, according to the rule concerning auxiliaries, beside the accurate authority of marsilius." and he concludes that at the very worst, when the utmost rigour of it is considered, they should not be punished with more than a temporary banishment. furthermore, rollandus in the said council is expressly confuted by facchinus. [citation.] nor is this without vital reason. for just as a qualification that modifies a crime in the principal delinquent increases it also for the auxiliaries, whenever they are aware of it, so all sense of equity demands that a qualification that diminishes the penalty for the principal, even though it be unknown to the auxiliaries, shall act in favour of them also. [citations.] hence caballus remains without a stable foundation, and is opposed to the opinion of the many doctors here alleged, who make no distinction between those who simply assist and those taking a hand in the murder; and indeed all of them speak of auxiliaries. furthermore, it is found that this has often been the judgment, even in the more extreme circumstances of one commanded to a murder, as was said above. and so strong is the plea of injured honour that not only does it extend its protection to mere mandatories, but even to mandatories whose case is modified by the circumstance of assassination. and it causes them to be absolved, as we find that it was so decided. [citations.] hence if both mandatories and assassins are redeemed from the ordinary death penalty, whenever they kill an adulteress at the command of the husband, it necessarily follows that the distinction of caballus is not a true one, nor is it accepted in practice. for if they are mandatories, we cannot deny that they may kill with their own hands; and nevertheless, not to speak of the other decisions cited above, clar. [citation] testifies such a decision favourable to the accused was handed down, contrary to the opinion of caballus. if, therefore, blasio and his fellows are not to be punished with the death penalty for affording aid in the murders, vain is the question whether they can be subjected to the torment of the vigil for the purpose of having the very truth from their own mouths. for this procedure demands two requisites: one that the most urgent proofs stand against the accused, and the other that the crime be very atrocious, according to the prescript of the bull. [citations.] and although the powers of this tribunal are very great for the dispensing with one of the said requisites, yet i have never seen the said torment of the vigil inflicted unless when there was no doubt that the crime, for which the fisc was trying to draw confession from the accused, deserved the capital penalty. we cannot believe that the prosecution expects to make a case to this end because of the pretended conventicle; since those who are assembled are not to be held under the penalty for conventicle, but only the one who assembled them is so held, as baldo well asserts. [citations.] nor in this case can the penalty for the asserted conventicle be made good against count guido himself, since the cause for which he assembled the men aids him in evading the penalty; inasmuch as one may assemble his friends and associates for the purpose of regaining his reputation. [citations.] for this has been well proved, that whenever any one for just grievance assembles men to avenge his injury, he has not incurred the crime and penalty of conventicle. and although farinacci, _quaest 113, n. 55_, declares that this holds good provided the vengeance be immediate, but that it is otherwise if the vengeance be after an interval, yet i pray that it be noted that in either case, if it concern vengeance for a personal injury (in which conditions he himself speaks), and therefore when for an injury which wounds the honour, such vengeance is at all times said to be taken immediately. for such an injury always urges and presses, because it should be termed the restoration and reparation of honour (which the one injured in his reputation could not otherwise accomplish), rather than vindication and vengeance, as we believe was satisfactorily proved in our other plea in behalf of count guido. but all further difficulty ceases with this consideration: prosecution can be brought for conventicle, if the men were assembled for an evil end and no other crime followed therefrom; but when, according to the sense of the fisc, they have been called together for committing murders, and these are really committed, no further action can be taken as regards the prohibited conventicle, but rather for the murders themselves; for the assembling of the men tended to this same effect. [citations.] and it is for this reason more particularly; because when the beginning and the end of an act are alike illegal, the end is given attention, and not the beginning, as bartolo teaches us. [citations.] it is to be added still further, that the assembling of men is not illegal in itself; indeed it is possible for it at some times to be both permissible and worthy of approval, as in the cases related by farinacci. but it is illegal because of its evil consequences and the base end for which it is usually made. hence, as the assembling of men is prohibited, not in itself, but because of something else, the end ought to be considered rather than what precedes the end. nor should the rigorous penalty of death be inflicted at all upon domenico gambassini and francesco pasquini for the pretended carrying of arms of illegitimate measure; because they are foreigners and had not stayed long enough in the ecclesiastical state so that their knowledge of this law could be taken for granted. nor ought it to be inflicted upon the others; for even if the death penalty is threatened by the constitutions and banns for the bearing or retention of them; yet since the carrying of this kind of arms is not prohibited for reasons in itself, but because of the pernicious end which follows it, or can follow it; and because this bearing of arms was looking towards the said murders; and because these, although they are not entirely permissible, are not utterly without excuse, the crime of carrying such arms should be included with the end for which they were carried; because the one is implied in the other, nor may the means seem worse than the end. and although, according to the opinion of some persons, the penalty for carrying arms is not to be confused with the crime committed with them, whenever the latter is the graver, yet this seems to be so understood when a crime is committed with them which is entirely illegal and without excuse. but this is not so when the crime is deceased and extenuated, and indeed excused in part, because of the reason for which it was committed. in any case, the bearing of arms, according to common law, is but a slight crime. [citations.] although by special constitutions and banns the penalty has been increased almost to the highest possible point, yet this kind of increase does not change the nature of the crime. and just as in the eyes of the common law, torture is not inflicted for getting the truth from those indicted for the said carrying of arms, in view of the insignificance of the crime, in like manner it cannot be inflicted by the force of constitutions and statutes which have increased the penalty. [citations.] and this is especially true in the case of the torment of the vigil, which cannot be inflicted for a crime that is not in its very nature most atrocious, but that is held as such, so far as the penalty is concerned, merely by the strength of a decree. this holds good unless indeed the nature of that crime is changed according to the method of proceeding in it. [citation.] and we see in the banns of our illustrious lord governor that he expressly declared this, when he wished to proceed with the torment of the vigil in cases in which he could not proceed legally; that of a certainty he would not do so. nor would he indeed have done this, if he could have inflicted such tortures in the case of crimes which are not capital by common law, but are to be expiated with the death penalty by the rigour of the banns. giacinto arcangeli, _procurator of the poor_. [file-title of pamphlet 4.] _by the most illustrious and most reverend lord governor in criminal cases_: _roman murder-case with qualifying circumstance._ _for the fisc._ _summary._ _at rome, in the type of the reverend apostolic chamber, 1698._ summary [pamphlet 4.] _no. 1._--_the sworn testimony of a witness as to the poverty of said count guido franceschini and the miseries suffered by the signori comparini while they stayed in his home in the city of arezzo._ _june 24, 1694._ angelica, the daughter of the deceased pietro and johanna battista of castelluccio, in the diocese of arezzo, about 35 years of age, was examined by me on behalf of pietro comparini, against any one whomsoever, and put on permanent record; as to which testimony, she took oath to speak the truth, as is seen below. i tell you in all truth, sir, that while i was staying in arezzo last january in the home of signora maddalena baldi albergotti, the chance was offered me to go and serve signora beatrice franceschini and her sons, etc. i decided to do so, and when i had gone to the home of the signori franceschini i spoke with the said signora beatrice. she drew me aside into a little room and told me that she would take me as a servant, but that i should never have any private dealings with the two old people who were in the house; one of them was signor pietro comparini and the other signora violante, his wife. she charged me still further that if either of the two old people chanced to call me into their chamber, i should not go without first asking her permission. on these terms i accepted the service. after i had entered thereupon, i noticed that signora violante stayed in her room most of the time, weeping, and though the comparini were stiff with cold, the room was without fire. hence i took pity on her, and without the knowledge of signora beatrice, i took the coals from my own brazier and carried them to her. but no sooner did i offer them to her than signora violante ordered me out of the room, lest signora beatrice might take offence that i had done this act of charity. also, once among the many times, when signora beatrice found it out she made me leave the coals in the fireplace and snatched the shovel from my hands, and threatened me, saying that if she had wished it she herself would have come to bring it; because she did not want me to do any service whatsoever for the said signori comparini. and the comparini could not even speak among themselves, because signor guido franceschini, the canon girolamo his brother, and signora beatrice, their mother, would stand at one door or another of the apartment and listen to what the said signori comparini were saying to one another. this occurred every evening and morning until the said signor pietro left the room and the house. and when he returned at night they were unwilling for me to make a light for him on the stairway. and once when signor pietro came back home about half-past six in the evening, and i heard him scrape his feet, i took up the lamp to go and meet him. but signor guido noticing that, snatched the lamp from my hands, telling me that i had better keep still, and that i had better not approach unless i wished to be pitched out of the window. and this seemed all the worse to me, because when i first entered upon the service of the said franceschini i had heard it said around the house that one evening, as signor pietro was coming back home, he had fallen, while ascending the same steps without a light, and that he had made a very ugly bruise, because of which he had had to keep his bed for many days. at the same time, while i was in the said service, it chanced one morning at breakfast that the franceschini gave some offence to signora violante, because of which a mishap befell her. for no sooner had she reached her own room than she threw herself into a straw-chair and swooned away. when signora francesca pompilia, wife of the said signor guido, found it out, she began to weep and to cry out with a loud voice, saying, "my mother is dying." whereupon i ran to signora violante and began to unlace her, and turned to bring her a little vinegar and fire. but because there was no fire i took some wood and put it in the fireplace to kindle it. when signora beatrice saw this she snatched the wood from the fire, in great anger, and told me to take the ashes, which were quite enough to warm her feet. so i took the ashes that were in the fireplace, but because of the intensely cold weather they were cool when i reached the room where the signora violante was half dead. accordingly, the signora pompilia and i, both of us weeping, unclothed signora violante and put her in the bed, which was as cold as ice. and because i was crying when i returned to the kitchen, after having put signora violante to bed, signora beatrice said to me: "do you want me to take a little hemp and wipe your eyes?" signora francesca pompilia also heard this, and she made some complaint to signora beatrice who did not want me to return to the room again nor to make a little gruel, as signora violante had ordered. it happened a few days later, during the month of february following, that while the signori franceschini, francesca pompilia, signor pietro, and signora violante were at the table, they began talking of their purpose of sending me away, as the franceschini had already dismissed me from service. when signora francesca pompilia, who was at the table with the others as i have said above, heard this, she remarked to signor pietro and signora violante: "do you know why they wish to send her away? they believe she wished to censure me because signora beatrice said some days ago that she would take hemp and wipe the tears from her eyes, when she was weeping over the accident that happened to you, mother." then signor pietro spoke up and asked the signori franceschini to keep me in their good graces for eight or ten days more, for if he wished to return to rome with signora violante he would take me with them. and he said he could expect this favour at their hands, as it was the first he had ever asked of them. to this, none of the franceschini replied; but signor guido rose from the table and, approaching me, gave me two very good licks. the others then came up. while he was doing this, the canon, his brother, also gave me some kicks, and his mother struck me and told me to leave at once. as soon as signora violante saw and heard this she took pity on me and exclaimed to the said signori: "where do you wish the poor thing to go now?" and all the franceschini with one accord said to signora violante: "you get out with her, too." and they called her "slut," and other insulting names, so that signora violante went to her room to put on her wraps. the canon drew a sword and ran after her into the room and shut the door. i, fearing that he would inflict some wounds upon signora violante, ran to enter the room and found that the canon had locked himself within. so myself and signor pietro and francesca pompilia began to weep and to cry out for help, thinking that the canon would kill signora violante there inside. and after some little time, i left the house, while the said couple and signora francesca pompilia were still making outcry to the signori franceschini. during all the time i remained in the service of the said signori franceschini at arezzo, as i have said above, i can say of a truth that every morning and evening at the table i served the said signori franceschini, signora francesca pompilia, signor pietro, and signora violante comparini. for the food of all this tableful, the franceschini bought on saturday a sucking lamb, on which they spent, at most, twelve or fourteen _gratie_. then signora beatrice cooked it and divided it out for the entire week. and the head of the lamb she divided up for a relish three times, and for the relish at other times she served separately the lights and intestines. during the days of the week when they ate there was no other sort of meat on the table to satisfy the needs of all the tableful. when he did not buy the lamb on saturday, as i have said, signor guido gave money to joseph, the houseboy, to buy two pounds of beef. signora beatrice herself put this to cook every morning, nor was she willing for the rest to meddle with it, and they ate therefrom at the table and carved for the evening meal. and because this meat was so tough that signor pietro could not eat it (as they had not cooked it enough), signor pietro did without eating meat, for the most part, and ate only a little bread, toasted and in bad condition, and a morsel of cheese. thus signor pietro passed the days when they bought beef. on fasting days he ate vegetable soup with a little salted pike, and sometimes a few boiled chestnuts. but always, whether on fasting days or not, the bread was as black as ink, and heavy, and ill-seasoned. then the wine which served for the table was but a single flask; and as soon as the wine was poured into this, signora beatrice made me put in as much more of water. and so i made out to fill the wine flask, half of it being water, and very often there was more water than wine. this flask she put on the table, and ordinarily it sufficed for all those eating, although at most the flask did not hold more than 3â½ _foghliette_ [half-pints] according to roman measure. furthermore, i say that, not many days after i had left this service, it was public talk throughout arezzo that signor pietro had gone home about half-past six in the evening and had found the street door shut so that he could not open it, and he was obliged to knock. when signora violante saw that no one about the house was going to open the door, she herself went downstairs to do so, but the door was locked with a key. and although she called signor guido and others who were in the house, yet no one stirred to go and open it. therefore signor pietro went to sleep at the inn, and in the morning returned to see signora violante and signora francesca pompilia. it was likewise said throughout arezzo that when signor pietro complained at having been locked out of the house by the canon, and when both signor pietro and signora violante reproached them bitterly about it, a new quarrel arose among them, and because of it both the signori comparini were driven out of the house. signora violante was received at the home of signor doctor borri, where she dined that evening and spent the night. and signor pietro went to the inn to dine and sleep. when i heard that, i went to the house of signor borri to see signora violante, but was not admitted. and the wife of signor borri told me to go and tend to my own affairs. for she did not wish the franceschini, who lived opposite, to perceive that i had gone there to see signora violante, as some disturbance might arise therefrom. then the next morning i went to the inn, where i had been told signora violante had gone to find signor pietro, but i did not find either of them, and was told by the host that they had gone out. so, not knowing where to find them, i returned to the home of signora maddelena albergotti, where i was staying. and i heard afterwards that both signor pietro and signora violante had returned to the inn, where they had breakfasted. then by the interposition of the governor of arezzo they were reconciled with the franceschini, and they returned indeed to the house of the latter. i heard also that the franceschini continued to maltreat and insult the said couple, as they had continually done while i was in their service. therefore they were finally obliged to leave arezzo and go back to rome. all the abovesaid matters i know from having seen and heard the ill-treatment, which the franceschini inflicted upon the comparini and the insults which they offered them and signora francesca pompilia; and likewise from having heard them talked about publicly throughout arezzo, where it is known to every one and is notorious, and where there is public talk and rumour about it. _no. 2._--_various attestations as to francesca's recourse to the bishop and governor because of the cruelty of her husband and relatives._ _june 17, 1697._ to whomsoever it may concern: we, the undersigned, attest as true: that signora francesca pompilia comparini, wife of signor guido franceschini, has many and many a time fled from home and hastened now to monsignor the bishop, and again to the governor, and also to the neighbours, because of the continual scolding and ill-treatment which she has suffered at the hands of count guido her husband, signora beatrice her mother-in-law, and the signor canon girolamo her brother-in-law. we know this from having met her when she was fleeing as above, and from the public talk and notoriety of it throughout the city of arezzo. in pledge of which, have we signed the present attestation with our own hands this abovesaid day and year, etc. i, canon alessandro tortelli, affirm the truth to be as abovesaid, and in pledge thereto have signed with my own hand. i, marco romano, affirm the truth to be as abovesaid, and in pledge, etc., with my own hand. i, antonio francesco arcangeli, affirm the truth to be as is contained above, with my own hand. i, cammillo lombardi, affirm as is contained above, with my own hand. i, francesco jacopo conti of bissignano, affirm as is contained above, and in pledge, etc., with my own hand. i, urbano antonio romano, a priest of arezzo, and at present curate of the parish church of san adriano, affirm the truth to be as is contained above, and in pledge thereto have subscribed with my own hand. then follows the identification of the handwriting in due form, etc. _extract from a letter written by d. tommaso romani, uncle of guido franceschini, to pietro comparini in rome._ most illustrious sir, my most honoured master: i can not do less, etc., departure, she has been little like the signora francesca, etc.; she fled from home, and went into san antonio. and thither ran also signor guido, the canon, and beatrice, etc., in order that she might come back, and in that belief the signora francesca returned home, etc. yesterday, signora francesca and my sister were in the duomo at sermon. at its close, while she was going away and was near the gate of monsignore, francesca fled into the palace, which is very near by. this was about seven o'clock in the evening, and there was a fine row in the palace, etc. _extract from another letter written by bartholomeo albergotti, a gentleman, to pietro comparini._ most illustrious signor and most cherished master: at my return, etc., the signora, his wife, has been melancholy, and two evenings after your departure, she made a big disturbance, because she did not wish to go and sleep with signor guido her husband, etc. the day before palm sunday, the signora went, etc., to preaching, etc., and in leaving there, she rushed into the palace of the bishop, etc. she took her station at the head of the stairs and stayed there until half past six in the evening; and neither signora beatrice nor signor guido were able to make her return home. yet the bishop did not give her an audience, but his secretary hastened thither and urged signor guido and signora beatrice not to scold the signora his wife, etc. and after quite enough of such disputes, they took her back home, etc. _no._ 3.--_deposition of francesca as to the letters asserted to have been written by her to abate franceschini, and previously outlined by her husband; recorded in the prosecution brought for her pretended flight._ _march_ 21, 1697 [for may.] francesca comparini, when under oath, etc., when questioned whether she had ever sent any letter to abate franceschini here in the city, while she lived in arezzo, replied: while i was in arezzo i wrote at the instance of my husband, to my brother-in-law abate franceschini here in rome; but as i did not know how to write, my husband formed the letters with a pencil and then he made me trace it with a pen and ink it with my own hand. and he told me that his brother had taken pleasure in receiving such a letter of mine, written by myself. this happened two or three times. when questioned whether, if she should see one of the letters written as is told above, and sent to the city to the same abate franceschini, she would recognise it, etc. she replied: if your honour would cause me to see one of the letters written by me, as above, and sent to abate franceschini, i should recognise it very well. and when at my command the letter was shown to her, about which there was discussion in the prosecution, and which begins _carissimo cognato sono con questa_, and ends, etc., _arezzo_ 14 _giugnio_ 1694, _affetionatissima serva, e cognata francesca comparini ne franceschini_. she responded: i have seen and have examined carefully this letter shown me by the order of your honour, which begins _carissimo signor cognato sono con questa_, etc., and ends _francesca comparini, ne franceschini_, and having looked at it, i think, but cannot swear to it as the truth, that this is one of the letters written by me to my brother-in-law, abate franceschini, in conformity [to my husband's wishes] as is said above. _no_. 4.--_the tenor of the letter written as above to abate franceschini._ dearest brother-in-law: i wish by this letter to pay my respects to you, and to thank you for your efforts in placing me in this home, where, far removed from my parents, i live now a tranquil life and enjoy perfect safety, not having them around me. for they grieved me night and day with their perverse commands, which were against the law, both human and divine: that i should not love signor guido, my husband, and that i should flee by night from his couch. at the same time they made me tell him that i had no congeniality with him and that he was not my husband because i have no children by him. they also caused me to run away often to the bishop without any reason whatever, and made me tell the bishop that i wished to be divorced from signor guido. and for the purpose of stirring up great discord in the home, my mother told the bishop, and signor guido, and then the entire town, that the canon my brother-in-law had solicited me dishonourably, a thing that had never been thought of by him. they urged me to continue these evil counsels, which were far from right and far from the submission due to my husband. and they left me at their departure their express command, by my obligation to obey them, that i should kill my husband, give poison to my brothers-in-law and my mother-in-law, burn the house and break the vases and other things, in order that in the eyes of the world it might not appear after their departure that it was they who had counselled me to commit so many crimes. and finally at their departure, they left me, as a parting command, that i should choose for myself a young man to my taste, and with him should run away to rome, and many other matters, which i omit for blushing. now that i have not her at hand who stirred up my mind, i enjoy the quiet of paradise, and know that my parents were thus directing me to a precipice, because of their own rage. therefore, now that i see in their true light these deeds proposed by the command of my parents, i pray for pardon from god, from yourself, and from all the world. for i wish to be a good christian and a good wife to signor guido, who has many times chidden me in a loving manner, saying that some day i would thank him for the reproofs he gave me. and these evil counsels which my parents have given, i have now made known, and i acknowledge myself your most affectionate servant and sister, francesca comparini _ne_ franceschini. arezzo, _june 14, 1694_. outside directed to abate paolo franceschini, rome. [the deposition of pompilia is translated pp. 90-95 in its completer form as given in the summary for the defence. the only additional fact in this version is the date of the affidavit, monday, may 13, 1697. she had been arrested at castelnuovo, may 1.] _no. 6_.--_attestation of priests and other persons, worthy to be accepted in all respects; who gave francesca, assistance even till her death; they speak of her honesty, and her declaration that she had never violated her conjugal faith_. i, the undersigned, barefooted augustinian priest, pledge my faith that inasmuch as i was present, helping signora francesca comparini from the first instant of her pitiable case, even to the very end of her life, i say and attest on my priestly oath, in the presence of the god who must judge me, that to my own confusion i have discovered and marvelled at an innocent and saintly conscience in that ever-blessed child. during the four days she survived, when exhorted by me to pardon her husband, she replied with tears in her eyes and with a placid and compassionate voice: "may jesus pardon him, as i have already done with all my heart." but what is more to be wondered at is that, although she suffered great pain, i never heard her speak an offensive or impatient word, nor show the slightest outward vexation either toward god or those near by. but ever submissive to the divine will, she said: "may god have pity on me," in such a way, indeed, as would have been incompatible with a soul that was not at one with god. to such an union one does not attain in a moment, but rather by the habit of years. i say further that i have always seen her self-restrained, and especially during medical treatment. on these occasions, if her habit of life had not been good, she would not have minded certain details around her with a modesty well-noted and marvelled at by me; nor otherwise could a young girl have been in the presence of so many men with such modesty and calm as that in which the blessed child remained while dying. and you may well believe what the holy spirit speaks by the mouth of the evangelist, in the words of st. matthew, chapter 7: "an evil tree cannot bring forth good fruit." note that he says "cannot," and not "does not"; that is, making it impossible to infer the ability to do perfect deeds when oneself is imperfect and tainted with vice. you should therefore say that this girl was all goodness and modesty, since with all ease and all gladness she performed virtuous and modest deeds even at the very end of her life. moreover she has died with strong love for god, with great composure, with all the sacred sacraments of the church, and with the admiration of all bystanders, who blessed her as a saint. i do not say more lest i be taxed with partiality. i know very well that god alone is the searcher of hearts, but i also know that from the abundance of the heart the mouth speaks; and that my great st. augustine says: "as the life, so its end." therefore, having noted in that ever blessed child saintly words, virtuous deeds, most modest acts, and the death of a soul in great fear of god, for the relief of my conscience i am compelled to say, and cannot do otherwise, that necessarily she has ever been a good, modest, and honourable girl, etc. this tenth of january, 1698, i, fra celestino angelo of st. anna, barefooted augustinian, affirm as i have said above, with my own hand. _another attestation as above._ we, the undersigned, being interrogated for the truth, have made full and unquestioned statement on our oath, that we were present and assisted at the last illness from which francesca pompilia, wife of guido franceschini, died. she was often asked by her confessors and other persons whether she had committed any offence against the said guido, her husband, whereby she might have given him occasion to maltreat her in such a manner as to cause her death. and she always responded that she had never committed any offence against him, but had always lived with all chastity and modesty. and this we know from having been present during the said suffering, and from having heard all these questions and responses while we were giving her medical treatment, or otherwise assisting, and from hearing her respond to these questions, as above, during the four days while she was suffering from her wounds, as we have seen and heard her; and we have witnessed her dying the death of a saint. in pledge thereto we have signed this present attestation with our own hands here in rome this tenth of january, 1698. i, nicolo constantio, etc., who assisted at the treatment of the said francesca pompilia during four days, attest as above, etc. i, fra celestino angelo of st. anna, barefooted augustinian, say that i was present from the first instant of the case, even to the end of her life, and was always ministering to her. she ever said, "may god pardon him in heaven as i pardon him on earth; but as for the matter they charge me with, and for which they have slain me, i am utterly innocent." in proof whereof she said that god should not pardon her that sin, because she had never committed it. she died as an innocent martyr in the presence of another priest, to the edification of all the bystanders, as i have affirmed above with my own hand. i, placido sardi, a priest, affirm with my own hand as the abovesaid father, fra celestino, has declared, having been present as above. i, the marquis nicolo gregorio, affirm as above with my own hand. i, the undersigned, affirm what is contained in the abovewritten statement, as well as in the attestation of the reverend father celestino of jesu and maria. i assisted the abovesaid signora francesca pompilia from the first, having picked her up from the earth where she lay in utter weakness because of her wounds. she had her head upon the legs of signor pietro comparini, who was already dead. she made confession in my arms to the principal of the greek college, because she could neither rise up nor lie down. and from that hour i never left her, but always ministered to her even unto her death. she was the most exemplary and edifying christian i have ever seen. for i saw her resigned to the divine will, and she always relied upon her own innocence, etc. i, giuseppe d'andillo, with my own hand. i, the undersigned, attest and affirm what is contained in all the said affidavits, from having assisted the said francesca pompilia, etc. dionysio godyn, with my own hand. i, luca corsi, affirm with my own hand as is contained in all the said attestations, from having assisted day and night as long as the malady of the former francesca pompilia continued, and from having heard as above. i, giovanni battista guitens, apothecary, who have assisted at the treatment and care of the said francesca pompilia, affirm with my own hand as is contained in all the above affidavits and attestations, from having assisted continually throughout a night and a day at the malady of the same. i, giovanni battista mucha, the boy of the said giovanni battista guitens, apothecary, affirm with my own hand as is contained above in the said attestation, from having assisted with the former francesca pompilia. full and unquestionable statement is given by me the here undersigned, abate liberato barberito, doctor of theology, that, as i was summoned to assist at the death of the said signora francesca comparini, i often noticed, and especially during an entire night, that the above-named defendant suffered the pains of her wounds with christian resignation, and condoned with superhuman generosity the offences of the one who had caused her innocent death with so many wounds. i also observed during the night the tenderness of the conscience of the above-named. for she passed it in showing the unwavering feelings of an heroic and christian perfection. and this so much so that i can attest that during the experience i have had, having been four years vicar in the cure of monsignor, the bishop of monopoli, of blessed memory, i have never observed the dying with like sentiments. and this is all the more so in an evil, caused so violently by another. therefore in pledge, etc. rome, this tenth day of january 1698. i, abate di liberato barberito, affirm as above, etc. [file-title of pamphlet 5.] _by the most illustrious and most reverend lord governor of the city in criminal cases:_ _roman murder-case._ _in behalf of the fisc, against_ count guido franceschini and his associates_. _memorial of fact and law of the lord procurator general of the fisc._. _at rome, in the type of the reverend apostolic church, 1698._ romana excidii [pamphlet 5.] most illustrious and most reverend lord: the deplorable slaughter of the entire comparini family, which occurred in this dear city of ours on the second night of the current month of january, and the shedding of their blood, cries out from earth to god for vengeance upon the criminals. and in order that we may fulfil the obligations of the office we are occupying, we have paid down the price of toil to narrate here with faithful pen the series of events. from this, my lords judges may readily see what laws may be applicable for a decision as to this cause and for the punishment of the delinquents for the same deed, etc., and so barbosa says in his axioms in jurisprudence, axiom 93, no. 1: "just as from the deed the law takes its rise, so from the deed the law dies." the series of facts, therefore, is as follows: guido franceschini of the city of arezzo, married francesca comparini, for whom, by pietro and violante comparini, there were promised as dowry, among other matters, certain properties subject to a reversionary interest. for they had brought this same francesca up in their home as their own daughter, and as such they married her. then, as the aforesaid pietro and violante had no other children, they left their home in the city to go and live in the home of franceschini at arezzo. there, for some time, they continued to live together in peace; but, as often happens among friends and relatives, contentions and quarrellings arose. on account of these, the aforesaid pietro and violante left that home and the city of arezzo, and went back to rome. in the meantime, as the flame of this enkindled hatred increased, a lawsuit was instituted as to the dowry once promised, but now denied by pietro, on the pretext that francesca was not indeed the daughter of the same pietro and violante, but that, after a pretence of her birth had been made, she had been received and brought up by them. and for this reason the said guido and francesca could not hope for the inheritance of the properties under the reversionary interest. but although franceschini gained a favourable judgment on this point, yet when appeal had been made on behalf of pietro comparini, francesca declared that she was ill-treated in the home of her husband by himself, and therefore desired to leave that home. accordingly with the aid and companionship of canon caponsacchi, a relative of the said franceschini, as is supposed, she ran away. but franceschini had notice of his wife's flight and, following her up, he overtook her at the tavern of castelnuovo. there he went to the governor of that place and saw to effecting the capture of his wife and the canon, as indeed followed. then the quarrel was continued. a criminal suit was brought in this tribunal of the governor of the city; the process of action was arranged, and the counsel on both sides was often heard, both by word of mouth and in writing. at last it was decided that owing to lack of proof of adultery the said canon should be banished to civita vecchia and francesca should be held in safekeeping. but because the comparini claimed that the furnishing of food in the safekeeping was the duty of franceschini, and the latter declared it lay with comparini, the most illustrious lord governor, having first secured the consent of abate paolo, the brother of guido and his representative in the case, assigned the home of the comparini to francesca as a safe and secure prison under security. while these contests were still pending, both in the civil and criminal cases, as well as in that for divorce brought by francesca, the wife, this same franceschini schemed to take vengeance upon the abovesaid. for the execution of this criminal purpose he brought together domenico gambassini of florence, alessandro baldeschi of the region of castello, francesco pasquini antonii of the marquisate of monte acuto, and blasio agostinelli of the town of popolo, and dwelling at the villa quarata. he provided them with swords and dagger, prohibited by the bull of alexander viii., and entered the city in company with the aforesaid men. approaching the home of the comparini, at the first hour of the night, he secured the opening of the door to himself under the pretence of bringing a letter, sent to violante by the said canon caponsacchi, then staying at civita vecchia. as soon as the door of the home was opened by the said violante, the aforesaid guido and his companions immediately set upon her. she was cut to pieces with their swords and immediately fell dead. pietro likewise was cut down and died. francesca, however, tried to hide under a bed, but was found and wounded in many places. then, as if god granted her the favour, she was not left utterly dead, though after a few days she also passed away; and thus she could reveal this monstrous crime. as soon as my lord governor had notice of this, with most vigilant attention, he saw that the malefactors were pursued beyond the city. accordingly that same night, they were discovered in the tavern at merluccia with firearms and illegal swords, still bloody, and were taken back to prison. then, when a case had been made against them, they were examined as to the crime. some of them indeed confessed it, and although the others made denial of the management and knowledge of the killing of the entire family, yet against them there are most urgent presumptions of the knowledge and management abovesaid. furthermore, from the same prosecution the gravest proofs have resulted, such as can be but slightly attacked and controverted by the defence. hence, when this cause may be presented to receive judgment, we believe that no foundation can afford defence for the criminals to escape the capital penalty, so far as they have confessed their crime, or can release those who have denied it from the rigorous torture of the vigil. for what if the defence do strongly argue the question as to whether a husband who kills an adulterous wife, not immediately and when found in adultery, but after an interval, ought to be excused from the ordinary penalty of the _lex cornelia de sicariis_? some authorities indeed give an affirmative opinion for the excuse of the husband, as is to be seen in giurba. [citations.] yet all of these authorities for mitigating the penalty upon a husband who kills his wife after an interval are moved by this reason: that since the sense of injured honour always oppresses the heart, it is difficult to restrain just resentment; for this reason the defence of the honour is said to be immediate when done as quickly as possible. but there are indeed many other authorities who stand by the negative, asserting that a husband who kills his wife, otherwise than when taken in adultery and in acts of passion, should be punished with the ordinary penalty. [citations.] rainaldi [citation] says this opinion is the truer and the more advantageous to the state, nor should one depart from it in giving judgment. sanzio says that it was often adjudged in this senate that a husband was not excused by adultery legitimately proved, if he killed his wife after an interval; and for this reason, because formerly, according to the law of romulus, a husband could kill his wife, but the _lex julia_ permitted him to kill only the vile adulterer, as matthã¦us proves. [citation.] but in this our present show of fact we believe we are dealing with a matter outside of the difficulty of this proposed question. for the authorities cited above for the contrary opinion hold good, and should be understood to do so, whenever the contention is about a husband who has killed his wife without excess of law and with no concurring circumstances and aggravating qualities, and when moved only by just grievance. but it is otherwise when, as in our case, excess and contempt of law is present and aggravating circumstances and qualities concur. laurentius matthã¦us [citation] testifies that, according to common practice, such a distinction has been followed out. and after he had affirmed that a husband should be excused from the ordinary penalty and be punished more mildly, he adds: "for these reasons, it is the common practice to weigh the effect of the grievance and to punish only the excess; so that if the suspicion of guile in the manner of killing is present (as he considers any circumstance which tends toward treachery) the penalty is aggravated." the aggravating circumstances which concur in our case are indeed many, and they are so grave that any one of them is enough reason for imposing the death penalty or for qualifying the crime. the first of these is the assembling of armed men; for according to decrees of the governor of this city, the penalty of death and of the confiscation of goods is inflicted upon the one assembling the men; and this is true even if those assembled are but four, as is read in chapter 82 of the same banns. this circumstance and quality cannot be evaded on the authority of certain jurists who assert that it is permissible for a husband to kill his wife, even by means of men thus brought together. for the said authorities speak, and should be understood, in a case in which a husband may kill with impunity an adulterer and his own wife in the very act of adultery, or in the home of the husband. but it is otherwise if she is killed after an interval, or outside of the home of her husband; according to what is given. [citation.] or these matters might hold good if in no other way he could kill the adulterer and his wife. so think all authorities who can be adduced in favour of the husband. this cannot be said in our case since franceschini, while following his wife with firearms, could have taken vengeance at the inn of castelnuovo. but he had recourse to the judge, and chose the legal way of punishing his wife and the canon with whom she fled. or these claims would hold good if he had assembled a smaller number of men, whereby the crime of conventicle would not have been established. and this is the more strongly to be held because we are not concerned with a deed that is unpunishable, and permissible by law, as i have said. nor do we believe that the defence can make a claim that the husband may kill an adulterous wife after an interval with impunity; for all the authorities who can be adduced in favour of the husband free him indeed from the ordinary penalty, but not from an extraordinary penalty, as those adduced by us above in ⧠_hinc cum causa_ can be seen to hold. if therefore, in our case, the husband committed a crime punishable in itself, how could he assemble a number of men forming a conventicle prohibited by the banns, without incurring the penalty threatened by them? the second quality and circumstance is the carrying of arms contrary to the specification of the constitution of alexander viii., which is extended to the whole ecclesiastical state. still less can the authority of jurists be alleged in excuse from this threatened penalty, if the husband kill an adulterer and the wife with prohibited arms. for aside from the response given by us in the explanation of the first circumstance of assembling and of conventicle (namely that these authorities hold good and should be understood to apply only in cases permitted by law, and therefore unpunishable), we say still further that they have very little application as regards the arms we are discussing; since the said constitution prohibits not merely the carrying of such arms, but even their retention, manufacture, or introduction into the city and the ecclesiastical state, under the penalty of rebellion and criminal insult to the majesty of the law. and so far as we are acquainted with such cases as are permitted by law, the authority of these jurists should be understood to hold good concerning arms, the carrying of which is indeed prohibited, but not the retention and introduction under any pretext whatsoever, even the pretext of justice; as is included in this same constitution ⧠1, where we read: "or to carry them on any pretext whatever, whether of military service or of the execution of justice, and still less to keep them in one's home or elsewhere." and in ⧠_ad haec_ it prohibits even the introduction of them: "the retention of them at home, in storehouses, and elsewhere, their introduction into the ecclesiastical state, and their manufacture." if therefore the retention and introduction of such arms is prohibited, even when on the pretext of executing justice, ridiculous indeed would be franceschini's pretence that he could approach the city and the home of his wife with such arms to vindicate after an interval this pretended offence of honour. this is the more certain as the crime concerning such arms is grave and of itself is punished with the capital penalty, as we have proved. in this case, when the crime actually follows, if the penalty for carrying the arms is greater than for the crime itself, the penalty for the graver offence is held to apply, and includes the lighter. [citations.] the third circumstance is that franceschini and the aforesaid men committed the murders in the very home and dwelling-place of the comparini; because homicide is always said to be qualified when it is committed in the home of the one slain; since the home should be a safe refuge for its master, etc. then also franceschini entered with changed garb; in which case the murder is said to be committed _ex insidiis_. [citations.] the fourth quality and circumstance is that the said francesca was under the power of the judge, since the home, as we have said in our narrative of fact, was assigned to her under bond to keep it as a safe and secure prison. and hence she was under the protection of the court. [citations.] and this is especially true when arguing in favour of the one who is under protection of the court, whatever may be said when arguing to his prejudice. and therefore the law holds that one under the protection of the court cannot be killed under less penalty than the death [of the assassin]. [citations.] but all debate seems to cease since it is proven in the process that the said franceschini approached the said home with his company of men with the thought and intent to kill not merely francesca, his wife, but also pietro and violante. these, as he himself acknowledges, he hated with a deadly hatred, because of the suit they had brought and because they had urged francesca to poison her husband and her brother-in-law, and had kept his wife in their home so that still further, in the continuation of the adultery, his honour was offended. but aside from this, as we have said above, francesca was placed in the said home by the authority of the judge with the consent of the brother of this same husband, and so the question does not enter as to whether a husband may lawfully kill the relatives, friends, and servants of his adulterous wife, even if he does suspect them of affording their leave or assent to the wife committing adultery; since the special rights and privileges conceded to the husband should not be multiplied against the wife, and be given greater scope, but rather should be strictly interpreted. [citation.] this holds good not merely when one is arguing about the prejudice of a third party, but concerning one's sole prejudice. [citation.] in our very circumstances we read that the permission cannot be passed from person to person. [citation.] yet we can more truly declare that such an assertion of adultery on the part of franceschini is calumniously false; for, in the very face of death, francesca protested, to the very damnation of her soul, that she had given no offence to her husband's honour. this protestation is the more to be believed since those about to die are not presumed to be unmindful of their eternal salvation. [citation.] the other causes adduced by franceschini himself, so far as they are true, can indeed prove hatred and enmity existing between himself and the couple, which would tend in that direction and so would serve to prove in him a cause for their premeditated murder. but this is not sufficient to excuse him from the ordinary penalty of death, which premeditated homicide altogether demands. [citations.] and it is for this reason, because the laws prohibit private vengeance (that is, vengeance which those without public office usurp to themselves because of their hatred, by killing or otherwise injuring men). [citations.] raynaldus affirms that in premeditated murder the ordinary penalty is inflicted not merely upon the slayer himself, but also upon all others who aid and give help, or concur in committing the murder by their help or council. [citations.] francesco gambi, _procurator general of the fisc and of the reverend apostolic chamber_. [file-title of pamphlet 6.] _by the most illustrious and most reverend lord governor in criminal cases: roman murder-case, with qualifying circumstance._ _for the fisc, against count guido franceschini and his associates._ _memorial of the law in the case by the advocate of the fisc._ _at rome, in the type of the reverend apostolic chamber_, 1698. romana homicidii cum qualitate [pamphlet 6.] most illustrious and most reverend lord governor: since the chief defence of count franceschini, the accused, as we have heard, consists in the pretended plea of injured honour, by which he was moved to crime, it is the office of the fisc to disclose the lack of foundation for this plea, in order that this atrocious and enormous crime may be punished with the due penalty. therefore i assume that we ought to examine the foundations on which the asserted plea of injured honour may rest; namely the flight of the unfortunate wife from the home of her husband in company with canon caponsacchi, with whom she was taken at the inn of castelnuovo, and the pretended love-letters which were put forward in the prosecution of pompilia for the said flight and departure. the pretended dishonesty of the wife is drawn from these two; but along with them other proofs were brought together in the said prosecution; the latter, however, are either altogether stupid or equivocal, or else unproven. this may be inferred from the dismission of the said francesca, his wife, merely with the precaution of keeping her home as a prison and of the canon with a three years' banishment to civita vecchia. such action shows that in this same prosecution there was found by the fisc no legitimate proof of dishonesty and of the pretended violation of conjugal faith, which the husband had charged against her. and indeed, from the defences then made and even from the trial itself, a very just cause has clearly appeared, which forced the luckless girl to flee from the home of her husband and to go back to her own home, there to live safely and quietly with her parents. notorious indeed are the altercations which, on account of the parsimony of the franceschini home, straightway arose between the parents of the wretched girl on the one hand, and the accused, his mother, and his brothers on the other hand. the former in vain bewailed the fact that they had been deceived by the show of no small opulence, on account of the false statement of an annual income of 1700 scudi, which was afterward shown to have no existence. indeed, while they stayed in the home of the accused husband in arezzo, they were so badly treated by himself and his relatives that after a few months they were obliged to leave it and return to the city. during the whole time they lived there, contentions and reproaches throve continually among them. the comparini were indeed excited with just indignation by the deception they had suffered. this is evident from the letters of abate paolo franceschini, which presuppose these troubles and which were considered for the defence by the procurator of the poor. these prove that hostility of mind had even then been conceived against the unfortunate parents, especially the one written march 6, where we read: "i write again to you that i do not wish to imitate him in his manner of writing, not being of his mind to sow broadcast in letters such words as would merit response by deeds and not by words. and these are so offensive that i have kept them for his reproof and mortification." and further on he says: "so that if you give us trouble, which i will never believe, you yourself will not be exempt therefrom." but sufficient proof results from the letters, as the following advise. [citations.] and although these letters do not make clear the nature of their altercations, yet some of them more than prove the reproaches had so increased that their bitterness grew into hatred as is evident from the letter of february 12, 1694, where we read: "but hearing from the one side or other that the bitterness between them, not to say the hatred, is increasing." it would be all too easy for the accused and the abate, his brother, to prove, by showing letters written to him, that the reproaches were unjust and were occasioned by the comparini themselves. this is apparent from the tenor of the said letter, where we read: "because i feel that the enemy of god has put strife among them, it is improper that i should fulfil my duty toward you of a reply." but since the franceschini did not show such letters, the presumptive truth of these same complaints and of this cause of complaint and altercation is strongly against the ones thus concealing them. in such circumstances the roman court thus affirmed. [citations.] but the truth of the charge of ill-treatment toward the parents, whom he was obliged by the dowry contract to provide with food, is also to be drawn from the deposition of a servant, as given in the summary, no. 1. and since this would excite the pity of any who read, it becomes all the clearer that, by such very ill-treatment of her parents, the mind of the wretched wife was greatly exasperated; for she kept grieving in vain at seeing them thus troubled; yes, and she was even prohibited from grieving. and any one may know that the return of her parents to the city would indeed disturb with a considerable and very just grief this wretched child who was not more than fifteen years old. for she was destitute of all aid, and was left exposed to her husband's severity, because of which she daily feared that she was in peril of her life. in vain did she have recourse to the reverend bishop and to the governor, summary, no. 2. in vain was the interposition of certain noblemen tried; which had proved utterly useless, as is evident from the letter of march 6, where we read: "but what remedy can i give you, when so many gentlemen friendly to both parties have interfered to settle the troubles and it has not turned out well?" she might indeed think that no other remedy was left her than to flee from the abode of her husband and to seek again her father's home. as therefore she fled to escape deadly peril, her flight can afford no proof of dishonesty nor of the violation of conjugal faith; for it is attributable to a lawful rather than to a criminal cause. [citations.] but there was another urgent cause for her eagerly desiring to seek her father's hearth, namely the ill-health of her father. she speaks of this in the letter which mentioned that she cannot look for the company of gregorio guillichini, and that this task had to be remitted to the canon [caponsacchi]. hence we can well infer that she was arranging for the flight for legitimate reasons. no reliance whatever can be placed in the letter written by this same wife to abate franceschini. in that she thanks him for having joined her in marriage with the accused, his brother. and she also acknowledges therein that, since the departure of her parents, she was living a life of utter tranquillity; because their evil persuasion, which was alienating her from her husband, had ceased. she also reveals a very base plan that had been proposed to her, namely, to destroy the entire household. now the wife in her sworn statement frankly confesses that she wrote this letter to appease her husband, and that he had marked the characters, which she had afterwards traced with a pen. this statement is found in an extract from her sworn testimony as given in our summary, no. 3. and a mere reading of the said letter so thrills one with horror that it is incredible that the luckless girl could have written such matters to the injury and detraction of her own parents, unless she had been compelled thereto by fear of her husband. for this reason the same letter is given in our summary, no. 4. but even just ground of fear, because of which the luckless girl was moved to flee, has come to light, namely, the lawsuit brought by her father against the accused for the nullification of the dowry contract. this contract had been made on false grounds; for pietro had believed that he was promising the dowry to his own daughter, but then, from a confession made by the mother, he had found out that she was none such and that violante had made pretence of giving birth to the child for the purpose of deceiving her husband and barring his creditors. since pietro had assigned all his property as dowry (and indeed it was of considerable value when we consider the quality of the persons concerned) he soon raised a dispute about it. and we may well fear that very grave and even deadly hatred arose therefrom. thereby the conjugal peace, which had been disturbed by long-continued altercation, was utterly destroyed by recrudescent hatred. for a lawsuit as to a considerable amount of money, much more as to an entire property, would produce this effect, as daily experience well teaches us and as grammaticus and others assert. [citations.] such just fear should be well considered by a prudent judge, who will take into account the circumstance of the persons and of the time. [citation.] in our case it may be absolutely affirmed that these matters should be so considered, inasmuch as not merely a girl of tender age (as was the unfortunate wife, who was destitute of all aid and exposed to the severity of the husband, who had sought her life with a pistol and had threatened her with death on trivial suspicions), but even a woman of greatest fortitude would be unable to bear being exposed to such constant risk of her life and would see the necessity of taking care of herself. and whatever the cause, even if it were merely supposititious, it would be enough to excuse her according to the text. [citations.] and canon rainaldi holds, that it is enough if one see the signs or acts of manifest desire, or preparations thereto. how much more excusable and how worthy of pity should francesca be considered, since she had such an urgent and such a well-verified cause for fleeing? mogolon holds that the mere sight of arms, even though the one having them does not use them nor unsheathe them, is just cause for fear. nor can presumption of dishonour and of violated conjugal faith arise from the company of canon caponsacchi, with whom she fled, and for which flight he was condemned to three years' banishment in civita vecchia. for the luckless girl was destitute of all aid, and the demands of her age, of her sex, and of her station in life, did not admit of her undertaking so perilous a journey either alone, or in company with any baseborn woman. for then, in escaping dangers at home, she might incautiously expose herself to even graver perils; as might have happened if while alone she had been overtaken by her husband in the journey. nor could she find any safer companion than this very canon, who was bound by friendship to the canon conti. and the latter, who was a familiar friend and blood-relative of the accused, although he had great pity upon her condition, judged it safer for her to flee with caponsacchi, whom he believed to be apt and far-seeing to bring about the desired end. otherwise she would have undertaken this flight with even greater risk. therefore this necessary and prudent choice of the lesser evil excludes all suspicion of pretended dishonour. [citations.] this suspicion is also excluded by the manner in which the flight was put into effect, namely in hurrying to the city by the direct route and with the greatest possible speed. for if the unfortunate girl had fled for the purpose of satisfying her lust with the same lover, the canon caponsacchi (as was charged elsewhere and as is repeated now even more bitterly to prove the plea of injured honour), she would either have delayed somewhere out of the public highways, where she could not be seized by the accused, or she would not have approached the city with such great speed. she would have done neither of these, unless she were making the journey for the purpose of seeking again her father's hearth, where she hoped to find security for her life and her honour. it would be far too imprudent a plan for a lover to take a wife from the home of her husband to some other place where he could not possibly satisfy his lust. this improbability alone would be enough to prove the truth of the cause given by the wife in her affidavit--namely, that she had fled to avoid the deadly peril in which she feared she was placed, and that she might return to her father's hearth. the canon also gave her his aid and companionship out of mere pity, and her honour was kept entirely untouched. the probabilities are always to be very much observed in arguing about a crime, or in excluding it, as the following hold. [citations.] still less firmly established is the other ground for the asserted plea of injured honour, which has been offered elsewhere by the accused on the basis of the asserted love-letters. these letters, it was pretended, had been written in part by that most wretched girl to the canon, and in part by the canon himself. all these, it was claimed, had been found in the privy of the inn at castelnuovo, where they were said to have been cast for the purpose of hiding them. response was indeed then given by the procurator of the poor that the identity of the handwriting was unproved and uncertain; for the letters did not show to whom they were directed. and these responses were indeed admitted, since no punishment was inflicted upon francesca, and she was simply dismissed with the precaution of keeping her home as a prison. and even though these letters, when we investigate their hearing, seem to give proof of excessive goodwill, yet francesca could have made pretence of this for the purpose of winning over the canon, who was reluctant (as she herself acknowledges in her affidavit), to afford her aid by giving her his company back to the city in the execution of her premeditated flight. it is indeed quite evident that the letters were prepared for this purpose. (summary, no. 5.) and therefore this wretched girl, who was destitute of all aid and was placed in imminent risk of her life, should be judged worthy of all pity, if with gentle and even with loving words she tried to entice the canon, whom she believed was well suited to afford her aid. nor can stronger proof of violated modesty be drawn from these letters written for the purpose of the flight than from the flight itself. nor is it a new thing for the most chaste of women to use similar arts sometimes for quite permissible ends. in the sacred scriptures we read that judith did so to deceive holofernes, for the purpose of freeing her country. this luckless girl could therefore do so without any mark of dishonour, for the purpose of escaping deadly peril. we may speak still further of her confidence in her own continence as well as in the integrity of the canon. concerning this, a certain witness, examined by the fisc in the said prosecution at the instance of count guido, who was then present, testifies to hearing from gregorio guillichini (likewise a relative of the accused) as follows: "signor gregorio then added that the signor canon was going there for a good reason, and that therefore signora francesca had desired to go to rome. and he told me also that no ill could arise from it, because there was not the slightest sin between them." the deposition of this witness, which is directly contrary to the party who had brought her into court, fully proves our point as the following hold. [citations.] and therefore, since the luckless girl can be suspected of no evil from her association with canon caponsacchi, and since she had no other help more suitable for carrying out her plan, her dealings with him by letter ought to be excused as ordered to this end, even though we may read certain loving expressions in them. the latter, indeed, should be considered rather as courtesies adapted to winning his goodwill, and they should always be interpreted according to the thought of the one proffering them. [citations.] still further, there is added the participation of the canon conti, a nobleman and a relative of the accused, who forwarded the attempt. it is incredible that he would have been willing to plot against the honour of guido, but he would merely wish to snatch that wretched girl from imminent death because of his pity of her. and such participation is made clearly evident from the very letters which it is pretended were written by caponsacchi. of lighter weight still are the other proofs of pretended dishonesty; [first] the approach of the canon to the home of the accused at night time, for the purpose of speaking with the wife who was slain; [secondly] the kissing on the journey to rome, concerning which francesco giovanni rossi, driver of the carriage (commonly called calesse) bears witness; and [third] the pretended sleeping together in the same bed at the inn of castelnuovo. as regards the first of these three, there is defect of proof; for it rests upon the word of a single witness only, maria margherita contenti, and she endures the most relevant exception of being a public harlot, and so she alone can prove nothing. [citations.] and since such approaching of the house was ordered to the permissible end of removing the wretched girl from the imminent peril of death, by taking her back to her father's house, it cannot be brought as a proof of illicit commerce. for the mere possibility that it was done for this purpose is enough to oblige us to take it in good part, according to the text. [citations.] this is especially so since the very witness who swears to this approach of the home states, by hearsay from the said gregorio guillichini, that it was to a good end, and that no sin was taking place between the canon and the wife who is now slain. and, as guillichini was better informed, and was indeed a friend and, as i understand, a relative of the accused, this excludes all suspicion to the contrary. with this testimony another deposition seems to agree, namely, that of the canon franceschini, brother of the accused, who when questioned as to whether he knew if any intimacy had existed between canon caponsacchi and francesca, replied: "this we never knew of beforehand; but after the criminal flight the whole town said that there must surely have passed some correspondence between them." his ignorance quite excludes and renders improbable any furtive and illicit approach to the home by the canon caponsacchi. for if the accused had indeed threatened to kill his wife on account of unjust suspicion of caponsacchi, we may well believe that guido himself, his brother, and all the household would have kept guard for her safe keeping with all their might. and so, the said approach to the home, if it had been frequent (as is alleged), or if it had been for an ill end, would have been observed by them. [secondly] under this same defect of proof lies the pretended kissing of each other on the journey. as to this matter only a single witness testifies, whose excessive animus is shown by his assertion, for he asserts that he saw this at night; nor does he give any reason for his seeing it, such as that the moon was shining, or that he could see because some artificial light was dispelling the gloom. as no such reason is given, he deserves no credence, as the following observe. [citations.] another very great improbability is added thereto--namely, that while he was driving the carriage with such velocity that it rather seemed to fly than advance swiftly, he could not have looked back to see such mutual kissing. this improbability likewise takes away from him all right to belief, according to what the following hold. [citations.] but the assertion of that most wretched girl herself is also well suited to exclude all suspicion of her pretended unchastity. this was made by her after she had suffered many severe wounds in the very face of death itself, at the demand of the priests and other persons ministering to her. for, according to their attestation, she asserted that she had never sinned against her conjugal faith and had always conducted herself with all chastity and shame: "we were present and assisted at the last illness from which francesca pompilia, wife of guido franceschini, died. she was often asked by her confessors and other persons whether she had committed any offence against the said guido, her husband, whereby she might have given him occasion to maltreat her in such a manner as to cause her death. and she always responded that she had never committed any offence, but had always lived with all chastity and modesty." and fra celestino angelo of st. anna, of the order of barefooted augustinians, in his testimony, bears even more exact witness to this constant assertion of her innocence, where he writes: "she always said, 'may god pardon him in heaven, as i pardon him on earth, but as for the sin for which they have slain me, i am utterly innocent': in proof whereof she said that god should not pardon her that sin, because she had never committed it." an assertion like this, indeed, given in the very face of death, deserves all credence, since no one is believed to lie at such a time, as the following assert. [citations.] menocchius speaks in these very circumstances of one suspected of heresy, saying that such suspicion is removed if in the hour of death the accused say and protest that he had lived and wished to die and to trust according to what is pleasing to the sacred roman church, etc. [citation.] and decianus cites the opinion of albericus, who declares that by means of an assertion of this kind, made before the cardinals, the memory of pope boniface had been defended, and that this very albericus had in this way defended gian galeazzo visconti of milan. and this is more especially true since all the said witnesses agree that this most wretched girl died with the highest edification of the bystanders, and that she had always shown the deeds of christian perfection, as we find in the said attestations, where we read: "and from having seen her die the death of a saint." and there is another statement of the said father celestino angelo, which infers the innocence of her past life from her conduct just before death. all these matters are given in our summary, no. 6. but, however rightly the accused might draw some suspicion of his wife's dishonesty from her flight and from these letters, the tenor of which seems to prove them love-letters (which suspicion could excite due anger), yet this would not make excusable such truculent vengeance, taken after so great an interval. for this vengeance was taken, not merely upon his most wretched wife, but also upon her parents, who were entirely off their guard and quite undeserving of such a fate. and these murders were attended with such grave circumstances, aggravating the crime, that he would have to be punished with death even if he had not confessed the murders. for although just anger because of violated conjugal faith usually moderates the penalty for a husband killing his adulterous wife, yet one can no longer argue for total impunity after an opportunity to take vengeance on the adulterer and adulteress has been thrown away. [citations.] but an especial and indispensable requisite is that the wife be taken in adultery, according to the text. [citation.] "for thus it wishes this power to lie with the father, if he take his daughter in her very sin." labeo also approves this, and pomponius writes that she may be killed when taken in very licentiousness, and this is what solon and draco say. [citations.] much more does this hold good in the case of a husband, whose wrath may be kindled much more easily against a wife by sinister and unjust suspicion conceived about her. for the husband is not always accustomed to take good counsel for the wife, which the law presumes that the father does by natural instinct, etc.; and it excuses the father only when he kills his daughter along with her defiler, or inflicts wounds unhesitatingly upon her. and this is so true that it is not enough if the wife be found only in acts that are remote from, or merely preparatory to adultery, as authorities commonly affirm. [citations.] john teitops holds thus, and i think it well to quote his words, since the judges may not have him at hand, and he thus explains the words of the said text: "therefore they argue that acts preparatory to adultery do not suffice, but the obscene commingling of limbs is required." and after citing his authorities, he adds: "and this is more clearly evident from the words of solon as given by lucian, the eunuch," where we read: "unless they lie who say that he was taken in adultery." and then he criticises the opinion of accursius, who asserts that acts preparatory for adultery are enough. and in the second paragraph after this decision is given he asserts that his opinion should be understood to be concerning immediate preparations, and he so explains his decision, where he says: "from the taking of the adulterer alone and naked with her alone and naked, and lying in the same bed, violent and certain suspicion of adultery arises, wherefrom the sentence of divorce may be granted." but the laws adduced (at letters i & j) show that strong suspicion does not indeed suffice. for this sort of discovery is the true taking in the act of adultery. and from a civil case under the said letter, one argues weakly for proof in a criminal cause. for no one can be condemned, much less killed, on suspicions alone in the absence of law. and violent suspicion is not indubitable ground for proof, such as is required in criminal cases. but indeed such suspicion is fallacious, because persons might be found to act thus for the purpose of committing adultery, and yet not actually to have committed the adultery, as gravetta and others say. the accused might indeed have contended merely for the tempering of the penalty if he had killed his fugitive wife in the act of taking her at the inn of castelnuovo in company with canon caponsacchi. but when he neglected to take vengeance with his own hand and preferred to take it by law, he could not then kill her after an interval. this is according to the text [citation], which affirms that one can put off the vengeance from day to day. [citations.] farinacci asserts that it was so held in practice, lest men should be given the opportunity of avenging their own wrongs. and he confutes bertazzolus, who places on the same footing a case of taking in adultery, and says that the wife may be convicted of it provided that there be no doubt of it. nor may the suspicion of the husband, which gave a strong ground for the difference, be unjust or too ready. because just grievance, exciting a wrath which usually disturbs the mind of the husband, is verified by the actual taking of the wife in adultery, or in acts very near to it and not after an interval, although his suspicion may be very strong. and so the laws which excuse a husband because of just and sudden anger cannot be extended to cover vengeance taken after an interval. for in the latter case neither the impetuosity nor the suddenness of the anger is proved, but the murder is said to be committed in cold blood. but if for the purpose of restraining the impetus of raging anger, lest the husband take vengeance on his own authority, he is not excused from the penalty of the _lex cornelia de sicariis_, provided he kill his wife after an interval, how much less excusable will he be if, after choosing the way of public vengeance by imprisoning his wife and her pretended lover, he shall, after a long intervening time, slaughter her and her parents so brutally? it should be added, for increasing his penalty, that as regards the unfortunate parents there was no just cause for killing them unless he wishes to consider as such the lawsuit which they brought for the nullification of the dowry contract because of the detection of her pretended birth. but this cause rather increases the offence to the most atrocious crime of _lã¦sa majestas_, because of the utter security which the pontifical majesty wishes to afford to all litigants in the city. this point is found in the well-known decree of alexander vi. where we read: "the inhumanity and savagery which thirsts for the death of others is horrible and detestable," and in the end we read: "in offence of the jurisdiction of his divine majesty, and to the injury of the apostolic authority." and, "they incur _ipso facto_ the sentence of the crime of _lã¦sa majestas_." and a little later: "and they may always be distrusted in all their good deeds by every one, and may be held as banditti and as infamous and unfit." very worthy of consideration, also, is that other aggravation of this inhuman slaughter, namely, that it was committed in their own home, which ought to be for each person the safest of refuges, according to the text. [citations.] and cicero elegantly says: "what is more sacred, what is more guarded by all religious feeling, than the home of each of our citizens! here are our altars, here are our hearths, here are our household gods, and here the sacred ceremonies of our religion are contained. this refuge is so sacred to all that it would be base for any one to be snatched hence." much more is this true as regards the wretched wife, who was held in that place as a prison, with the approval also of the abate franceschini. and hence the public safekeeping may be said to be violated thereby, and the majesty of the prince wounded, since the same reasoning is observed as regards a true and formal prison, and a prison assigned by the prince, as the following assert. [citations.] finally, we should also consider the aggravation of "prohibited arms," with which the crime was committed. this of itself demands the death penalty, even though the principal crime should otherwise be punished more mildly, as sanfelicius advises, stating that it was so adjudged. [citation.] giovanni battista bottini, _advocate of the fisc and of the apostolic chamber._ [file-title of pamphlet 7.] _by the most illustrious and most reverend lord governor of the city in criminal cases_: _roman murder-case._ _for count guido franceschini and his associates, prisoners._ _summary._ _at rome, in the type of the reverend apostolic chamber_, 1698. summary [pamphlet 7.] _no._ 1.--_letter of the honourable marzi-medici, governor of arezzo._ my most illustrious and dearly beloved master: your favoured letter of the twenty-fourth of last month has reached me, and i am exceedingly sorry for the uneasiness in which you hint you are placed by the maledictions which signor pietro comparini and his wife have disseminated throughout rome, concerning the ill-treatment they say they suffered in your home while staying in arezzo. as your letter questions me for true information, i answer with all frankness, that both among the noble connection and in count guido's home they were treated with all respect and decorum. the cause of the first disturbance which sprang up between them and your mother and brothers was that signora violante, a few days after her arrival, presumed to domineer over the house and to keep the keys of everything, and in fact to turn out of house and home signora beatrice, your mother. with good reason, neither of the brothers was willing to consent thereto, and this gave occasion for the first insults and domestic broils. these afterwards increased when they saw that signor pietro had given over the company and conversation of the best people of the city, and had struck up acquaintance with the most vulgar. and with them he began to frequent daily all the taverns here. this cast discredit upon him, and was little for the good name of the franceschini. of much greater scandal were the many flights and petitions made by guido's wife, their daughter, to monsignor the bishop. these were made for no other reason than that neither she nor her parents wished to stay any longer in arezzo, but desired to return to rome. when she had been rebuked by that most prudent prelate, he always sent her home in his carriage. it is true that ever since the comparini left this city until the present time the signora has conducted herself with much modesty and prudence. from this fact every one infers that the poor child was led to such excesses by her parents, as she herself declares to everybody. now she detests even the memory of them. therefore, she is getting back into the good opinion of every one, and especially of those ladies of the city who had ceased having anything to do with her. finally, these same comparini had taken away all her jewellery from the signora, which i forced them to restore. altogether, such and so great are the scandals to which they have given rise before the whole city in the lapse of the few months they have stayed here, that i write you only a few of them. i assure you that with them your brothers have had the patience of martyrs. accordingly when i saw that they had become incorrigible, and were the talk of the town, and that they might force your brothers to commit some excess against them, for the maintenance of good discipline, i availed myself of the authority vested in me by his serene highness, and threatened them with prison and punishment unless they behaved themselves. after these threats, which they evidently merited and which might have overtaken them, they decided to go to rome, as they did a little later, leaving behind them in this city a very bad reputation. as for the rest, there is now in your home an utter quietude, and the signora lives with exemplary prudence, detesting the ill example she had shown the ladies of this city, and she confesses freely that it was so commanded by her parents. in my judgment, it is the hand of god that has freed your family from such turbid heads. this is all i can here put down, out of much else there is to say about it. therefore rest at ease, and believe me that the discredit has been entirely their own. i need only sign myself, with all my heart, to your most illustrious self, your most devoted and obliged servant, vincenzo marzi-medici. arezzo, _august 2, 1694_. to signor abate paolo franceschini, rome. no. 2.--_deposition of francesca._ i will tell your excellency why i have fled from the home of my husband. here in rome, three years ago, i was married by my father and mother to the said franceschini, and after i was engaged to him he stayed here in rome for two months without consummating the marriage. then with my father and my mother i was taken by my husband to arezzo, because in the marriage contract it was agreed that my father and mother should go and live in arezzo, as they did. after they had remained there four months, they departed and returned to rome, because of the ill-treatment they suffered, at the hands not only of my husband, but of the others in his house. i was left behind in arezzo, and when about a year had passed after the consummation of the marriage, as i did not become pregnant my husband and my mother-in-law beatrice began to turn against me, because i had no children. he said that because of me their house would die out and that he could not hope for an heir by me after a while; for by chance he had heard my father say, that during a girlhood sickness certain seeds had been given to me as medicine, which possibly hindered me from having children. for that reason i came to be continually mistreated by my husband and mother-in-law, though i answered that i was not to blame for that. yet they continued always to threaten my life, and, without any real occasion, they sought every pretext to maltreat me. then my husband began to be jealous of me, and forbade me to show my face at the window. and to remove that occasion of jealousy i never showed my face save when it was absolutely necessary. so one day, while we were on the loggia, he said to me that i was staying up there to make love, without telling me with whom. i replied that these were mere pretexts, and that from that place one could see only the street, without looking into the windows of the houses; for the loggia was entirely on the roof. [sidenote: a. she tells of her husband's threats because of her ardour for her lover.] and then because the canon caponsacchi, with other young men of the place, used to pass before our house and stop to talk with certain hussies, who were standing there in front, my husband began to fume with anger at me because the said canon kept passing there as above, although i was not at all to blame. his suspicion increased all the more because, while we were in a great crowd at the play one evening, canon conti, the brother of the husband of my sister-in-law, threw me some confetti. my husband, who was near me, took offence at it--not against conti, but against caponsacchi, who was sitting by the side of the said conti. then because conti frequented our house, as a relative, my husband took offence at him likewise; and this so much so that i, being aware of it, retired to my room whenever he came to our house, that i might not have to take even more trouble; but my husband was not thereby appeased, but said that i did this as a trick, and that his suspicions of me were not removed. he began anew to torment me so, on account of caponsacchi, that i was reduced to desperation and did not know what to say. then to remove that occasion for his ill-treatment, i spoke to the said caponsacchi one day as he was passing our house and begged him not to pass that way, that he might relieve me from all the distresses i suffered at the hands of my husband on that account. he replied that he did not know whence my husband had drawn such a suspicion, as he used to pass along there on other affairs, and that, in short, guido could not stop his passing along the street. and although he promised me not to pass along there, he continued to do so. but i did not show my face at the window. yet with all this my husband was not appeased, but continued to maltreat me and to threaten my life, and he said that he wished to kill me. at the time of the affair of the play told above, as soon as we had returned home, he pointed a pistol at my breast saying: "oh, christ! what hinders me from laying you out here? let caponsacchi look to it well, if you do not wish me to do so, and to kill you." [sidenote: b. she died asserting that she did not know how to write.] furthermore at the beginning of these troubles, i went twice to monsignor the bishop, because he might have remedied it in some way; but this did no good, because of his relation with the house of my husband. and so as i was a stranger in that city and did not know how to free myself from these perils and abuses, and as i feared that if guido did not slay me with weapons he might poison me, i planned to run away and go back to rome to my father and mother. but as i did not know how to accomplish this, i went about a month later to confession to an augustinian father, whom they call romano. i told him all my distresses, imploring him to write to my father in my name, as i do not know how to write, and to tell him that i was desperate, and must part from my husband and go to him in rome. but i had no response. [sidenote: c. she confesses the strength and audacity of her lover.] [sidenote: d. she confesses a conversation with her lover.] [sidenote: e. she confesses a new conversation with her lover.] therefore, not knowing to whom i might turn to accomplish my desire, and thinking that no one in the place would assist me, because of their relationship or friendship to my husband, i finally resolved to speak of it to the said caponsacchi, because i had heard said that he was a resolute man. accordingly, as he was passing one day before our house, at a time when my husband was out of the city, i called him and spoke to him from the stairs. i told him of the peril in which i found myself on his account, and begged him to bring me here to rome, to my father and mother. he replied, however, that he did not wish to meddle at all in such an affair, as it would be thought ill of by the whole city, and all the more so as he was a friend of the house of my husband. but i implored him so much and told him it was the duty of a christian to free from death a poor foreign woman. at last i induced him to promise me that he would accompany me as above. then he told me he would secure the carriage, and when that had been arranged he would give me a signal by letting his handkerchief fall in passing before our house, as he had done before. but the next day went by, and although i stood at the blinds, he did not give the signal. when the day following had also passed, i spoke to him again as above, and complained to him that he had broken the word he had given me. and he excused himself, saying that he had not found a carriage in arezzo. i answered him that, at any rate, he should have procured one from outside, as he had promised to do. then the last sunday of the past month, he went by our house again and made the signal with the handkerchief, as he had promised. and so i went to bed with my husband that evening, and when i had assured myself that he was asleep i arose from bed and clothed myself. i took some little things of my own, a little box with many trifles inside, and some money, i know not how much there was, from the strong-box. these were, moreover, my own, as is evident from the list of things and moneys made by the treasurer of castelnuovo. then i went downstairs at dawn, where i found caponsacchi, and we went together to the porta san spirito. outside of it stood a carriage with two horses and a driver, and when we had both entered the carriage we journeyed toward rome, travelling night and day without stopping until we reached castelnuovo, except for them to take refreshment and to change the horses. we arrived at dawn, and were there overtaken by my husband as i have told heretofore to your honour. the said caponsacchi is not related in any degree to my husband, but was certainly a friend. [sidenote: f. the lie about the arrival at castelnuovo.] [sidenote: g. the lover is not a relative of her husband.] the said caponsacchi, before the said affair, did not send me any letter, because i do not know how to read manuscript, and do not know how to write. [sidenote: h. new lies, that she did not receive letters from her lover, and that she does not know how to write.] before the said affair, i did not at all send a letter of any sort to the said caponsacchi. [sidenote: i. another lie, that she did not send letters to her lover.] [sidenote: k. she does not know how to write, and her husband had traced the letter.] when again put under oath, she responded: while i was in arezzo, i wrote at the instance of my husband to abate franceschini, my brother-in-law here in rome. but as i did not know how to write, my husband wrote the letter with a pencil and then made me trace it with a pen and ink it. and he told me that his brother had much pleasure in receiving such a letter of mine, which had been written with my own hand. and he did this two or three times. if your honour should cause me to see one of the letters written by me as above, and sent to abate franceschini, i should clearly recognise it. and when it was shown, etc., she responded: "i have seen and carefully examined the letter shown me by the order of your honour, which begins--_carissimo sig. cognato, sono con questa_--and ends _francesca comparini ne franceschini_, and having examined it, it seems to me, but i cannot swear to it as the truth, that it is one of the letters written by me to abate franceschini, my brother-in-law, in conformity to my husband's wishes, etc." and after a few intervening matters, etc., when questioned, etc., she replied: "i have never sent letters of any sort by the said maria to any one." [sidenote: l. another lie about the arrival at the tavern of castelnuovo.] in all truth, i arrived at castelnuovo at the blush of dawn. we shut ourselves in there at the tavern of castelnuovo for the space of more than an hour. during that time we stayed in a room upstairs. [sidenote: m. new lies that she did not lie down to sleep at the inn of castelnuovo.] and after a few other matters, when questioned, she replied: "i did not go to sleep, nor lie down to rest in the tavern at castelnuovo during the time i stopped there, as above." i know that your honour tells me that the authorities pretend further that i slept all night in the abovesaid tavern of castelnuovo in an upstairs room, in which canon caponsacchi also slept. and i say and respond that no one can truly say so, because i did not rest at all in the said tavern, and stopped there only for the time stated above. [the letter of pompilia to abate franceschini occurs both here and in the summary of the defence. it is translated on pp. 56, 57.] no. 4.--_a letter of francesca written to abate franceschini._ outside: to abate paolo franceschini, rome; but inside: my very dear sir and brother: i have received the fan which you sent, which has been most welcome to me. i accept it with pleasure and thank you for it. it displeases me that, without reason, my parents wound the honour of our house. i for my part am well and am happy in not having them now to stir me to evil. i wish well to all our house, in the sacred fear of god. in fact you may well laugh at the maledictions of my parents. command me, who reverence you from the bottom of my heart. your deeply obliged servant and sister-in-law, francesca comparini franceschini. arezzo, _july 19, 1694_. no. 5.--_the examination of canon caponsacchi._ i had to go to rome on my own business, and as i told my secret to giovanni battista conti, a relative of franceschini, who frequented the home of the latter, francesca might have learned about it from the same canon, although there was talk about town of my coming to rome, which was to follow soon. hence a letter, sent to me by the said francesca, was brought one day by a certain maria, then a servant of the franceschini. in it she told me that she had heard of my going to rome, and that, as her husband wished to kill her, she had resolved to go to rome to her father; and not knowing with whom she might intrust herself, she asked me to do her the service of accompanying her as above. i answered her that i was unwilling to do anything of that kind, or to expose myself to such a risk; and i sent her a reply by the same servant. i do not remember the precise time that she sent me the above letter. thereafter, when i passed the house, she continued making the same request to me, by flinging from time to time from the window a note that repeated the request. and i replied to her, sending the response by the same servant, and telling her that i did not care to involve myself in such affairs. and therefore she finally cast me another note from the window, which, as i learned, was seen by a working-woman living across the street, whose name i do not know, and she carried it to the husband. the same servant was then commissioned to tell me that there had been a great commotion in the house because of it, and that the sister of guido, who had been married into the house of conti, had declared furthermore that that servant had carried the letter to me. she also told me that guido said he was going to kill his wife in some way after a little while, and that he would also be avenged on me. accordingly, with this purpose, to free myself from every difficulty and danger, and also to save from death the said francesca, i resolved to leave for rome and to accompany her thither, conducting her to her father. and so one evening--i do not remember the exact time--as i was passing their house i gave her a letter, which she drew up to the window with a string. in it i told her that to free her from death i would accompany her as above. another evening she threw to me from the window a letter in which she renewed the above insistence, declaring to me that her husband was always threatening to kill her; she would therefore have to receive the favour of my company as above, of which i had spoken. and finally, the last sunday of the past month of april, while i was going by their house and she was standing at the window, i told her that i had secured the carriage for early the following morning, and that i would have it await her at the gate of san clemente. accordingly, at about one o'clock in the morning, she came alone to the said gate. we entered the carriage and turned along outside of the city wall to go to the gate of san spirito, which is in the direction of perugia. this carriage belonged to agostino, tavern-keeper in arezzo, and a driver, surnamed venarino, the servant of the said agostino, drove it. i had had him leave the city sunday evening at the ave maria. then we pursued our journey without stopping to spend the night anywhere, and we paused only as it was necessary for refreshing ourselves and changing horses, until we reached castelnuovo on tuesday evening, the last day of the said month of april. then because francesca said that she was suffering some pain, and that she did not have the fortitude to pursue the journey further without rest, she cast herself, still clothed, upon a bed in a chamber there, and i, likewise clothed, placed myself on another bed in the same chamber. i told the host to call us after three or four hours, for resuming our journey. but he did not call us, and the husband of the said francesca arrived in the meantime, and had both of us arrested by the authorities, and from there we were taken to rome. i have not spoken in arezzo to francesca at other times than those i have recounted above to yourselves. [sidenote: e. the lover is not related to count guido.] the husband of the said francesca is not related to me in any degree whatsoever. i have no profession at all, but am a canon of the pieve, of santa maria of arezzo, and am merely a subdeacon. when i was imprisoned at castelnuovo certain moneys, rings, and other matters were found, of which a memorandum was made by the authorities. i have never written any letter to the said francesca, except as stated by me above. the letters sent to me as above by the said francesca were burned by me in arezzo. although in the prison of castelnuovo, where i was placed, a diligent search was made by the authorities and also by the husband of the said francesca, nothing at all was found there. the said francesca when leaving arezzo carried with her a bundle of her own clothing and a box, in which she said there were some trinkets, but i did not see them. and she had it in a handkerchief with certain coins, which were then described at castelnuovo by the treasurer. i do not know precisely by whom the letters sent to me by the said francesca were written, but i suppose that they may have been written by her, but i do not know whether she knows how to write. in the chamber of the inn at castelnuovo where we stopped, as i said in my other examination, there were two beds. only one of these was provided with sheets by the servant of the tavern, that it might serve for signora francesca. i did not have sheets placed on the other, because i did not care to undress myself. nor did she undress herself, as i said in my other examination. if i should see one of the letters written by me to signora francesca, i would know it very well. i have seen and i do see very carefully these two letters which have been offered as evidence in this suit and have been shown to me by the order of your honour. one of them begins _adorata mia signora, vorrei sapere_, etc., and ends _mi ha detto il conti_. having well considered this letter, i declare that it was not written by me, though the handwriting of the same has some resemblance to my own. i have also seen the other letter, which begins _amatissima mia, signora, ricevo_, etc., and ends _questa mia_, and having well examined it i say that the same was not at all written by me, and is not in my handwriting. furthermore, it has not the slightest resemblance to my handwriting. i have never spoken in arezzo to signora francesca, except when i spoke to her at the window, as i said in my other examination. i have never received other letters from the said signora francesca concerning other matters than her flight to rome, as i have said in my other examinations. i marvel that the fisc pretends that, before the flight, several other love-letters had been sent to me by the said signora francesca; for she was a modest young woman and such actions would be out of keeping with her station and her birth. and therefore i declare that the abovesaid pretence is false and without foundation. i turn back to say to your honour that in the prison of castelnuovo there was not found by the authorities anything whatsoever. and if your honour tells me that certain love-letters were found, which the fisc pretends are those sent me by signora francesca, i say and respond that it is not at all true. no. 6.--_letter of the most reverend bishop of arezzo._ outside: to the most illustrious and most respected signor paolo franceschini, rome. and inside: my most illustrious and respected signor: i understand why you desire to tell me about the quarrels which have arisen between signor guido, your brother, and signor comparini. and i cannot but pity you for the trouble you have had in a case so rare, and indeed so unprecedented. the signora, your sister-in-law, had some recourse to me, but her great excitement, taken along with the excessive passion of her mother, revealed to me that the daughter had taken this step entirely by instigation. so i tried to make peace between them, thinking that when the instigations of the parents were removed she might be brought to right reason. i believed this the more readily, as she was of tender age. and the more she spoke, and the more she made outcry, that much the more had she been urged thereto by the instigation of her mother. and that she might not be excited even more, i had her taken home in my carriage twice. i have some knowledge of this because signor senator marzi-medici, who presides over the laic government of this town for our most serene grand duke, has told me all. and i need only add that i reaffirm what i have written with entire sincerity. wishing for new chances to serve you, i affirm myself to you, sir, your most obedient servant, the right reverend bishop of arezzo. arezzo, _september 15, 1694_. no. 7.--_reciprocal love-letters._ my dear sir: i do not multiply my assertions for the purpose of proving my love to you, because my resolution and your desert is enough proof of it. my affection no longer has any rein, etc. may grace be to him who gives grace. my own signor: i tell you, do not be surprised if my mother was at the window, because she was looking at the one who was setting the sofa in order. and therefore you can pass here without fear. when more at my leisure, i will write you some fine matters, etc. when they tell me anything, i will advise you of it. my adored mirtillo, my own life: i pray you pardon me that i did not look at you yesterday when i was at the cappucchini, because i saw that the two were watching to see if i would look at you. therefore i suffered much pain in not being able to look at my sun. but i saw mine own with my heart, in which i have you engraved. i remain as i am and shall be your devoted servant and faithful sweetheart, amarillis. my well-beloved: i have received your letter, which has given me much pain, etc., that the jealous one might have seen the letters. and he did see them, but did not open them, because they were tied up together, and he supposed that they were other letters, and did not take them into his hand. this fellow is telling it because he would like you to get angry with me, etc. you ask me if i am of the same thought, and i tell you yes. if you have not changed, i am ready to do what i have told you, etc. then soon, if they continue to drink red wine, i will tell you so. whether you are of the same mind still, or have repented of it, i am content to do what you wish, etc. i remain as i have been your faithful sweetheart. most beloved signor: i do not know why you did not pass here yesterday evening; for i took my stand at the window and saw no one. i forsook the window because the canon, my brother, was there. i left there to go to the other windows lest he might see me, etc. but you turned toward the door of your sweetheart, because there is the one adored by you. conti has asked me for those octaves, which you gave me, etc. therefore tell me if i must give them to him or still keep the precious verses for myself. and i remain as i am and shall be your faithful, yes, your most faithful sweetheart, amarillis. i forgot to tell you that the signora my mother no longer has the fever, and is drinking wine, but by herself. her wine, however, is red like ours. therefore tell me what to do, that i may do it. i close with sending you a million kisses. but i know that in this way they are not so dear as a few would be if you would give them to me. but those of the signora are very dear to you, though i tell you that they are poisoned, etc. be the scrupulous one with others that you have been with me. for you have reason for this with others, but you have no occasion for it with me, etc. most cherished narcissus: this evening i received your letter, and it gives me great comfort to know that you are not angry, etc. i do not know when he will give it to me, but if he gives it to me i will give it to you. the jealous one is away, but i shall still be here, and all the rest; but because my mother has not found a servant, etc., they have said that they will stay here a while. therefore you will not pass [?] out of my mind because of my not seeing you for a while. but whoever loves from so good a heart as i do, will keep one in mind. i pray you pardon me if i make myself tedious by writing too often. acknowledging myself as i am, i remain your devoted servant and most faithful sweetheart. most beloved signor: if you could imagine with what haste i have written to you these two verses, etc. i met signor doctor, as usual. he asked me where i was going, and along the street, he asked me why i had written scornfully to him. i told him that he deserved even worse, because he had given evil deeds and good words; for he had said he was fond of me and that he wished him and the rest of them in sovara, etc. he replied it did not come from this one, but on account of another gentleman whom i used to like, who was more gallant than he. i answered him that if that one was not more gallant than himself, he was at least more faithful, etc. professing myself, as i have ever been faithful, etc. my adored and revered signor: i wish by this letter of mine to excuse myself from my error in sealing the letter which i sent to rome, etc. i tell you that they have not found any letter at all of mine, because i do not let them lie around the house, but give them to the flames. and while i keep them, i place them in my bosom. this is not an excuse, why you should surmise [it to be] one of my letters; for i tell you that i give it place in my bosom, etc. inasmuch as one of the family may be behind the curtain, as i believe, do not make any signal when you are under the windows. i shall be at the window this evening, or else at the blinds, and when i shall see you i will show myself at the window. but it is necessary to be prudent, that he may not see me. because he has told me that if he sees me he will wish to do such things as not even ã�neas, the trojan, did. to avoid arousing his suspicion i will not stay there. but i pledge myself your most devoted servant. my longed-for blessing: if your saying that i do not love you, because you do not know me, is not an error, it is at least displeasing to me. hear me, my dear: i am offended with you, because either you consider me blind or you do not consider me amiable. you cannot say of a truth that i do not love you, nor can you say truly that any one does love as much as i love you. look into my eyes, and you will be astonished; for when bright with my tears they will be faithful mirrors to reveal to you that your face is copied there (in which an outline of it is made in the sun), that your whiteness is snow in comparison with the milky way, that the graces have directed your movements by their own hand, that venus in fashioning you took the measure of your limbs with her own girdle. ah yes, i love you so much that in one respect i would wish alone to love you in the world, because it seems to me that i could love you all in central latium. i should like that all might love you, because you would see that all of them put together cannot love you as much as i alone do. my breast is envied by every other part of me, because it alone is able to love you. these are matters one cannot know by mere hearing; they are matters to render one excusable to any one else who does not believe it. but you are a cruel beauty; for if you see a face composed by the miracles of angels you should not consider it a lie if a heart is found fashioned by the miracles of love, etc. i leave you a thousand thousand kisses. my well-beloved: i pass by compliments, because i cannot match your very gallant verses, which are so far different from what i merit. you tell me that you wish to know what has happened in our house. i tell you that nothing has happened, so far as i can see, because none of them have said anything to me--none of them. but signor guido seems rather well disposed toward me than otherwise, and therefore i cannot find out whether they are angry with me. let my brother-in-law lock the door; he does it often, etc. if you do not wish to pass by here any more, i leave that to your own judgment, and i will suffer quietly the pains which are pleasing to you. therefore i tell you that you may do as you wish. for as gold is refined in the fire, so love is refined by suffering. i can well say that i shall suffer pain at not seeing you as i have been accustomed, etc. with a loving kiss, i remain as i have ever been, your most sincere sweetheart and your most faithful slave. i had quite forgotten to tell you that i stay in the same room as at first, and that thursday evening i went to bed at eight o'clock, and so you did not hear me enter the room. i told the servant that she should make the signals agreed upon, etc. signor guido returns saturday morning and you may pass this evening at ten o'clock or sooner, when you shall see the light in the room, etc. my well-beloved: i received your letter, which was most pleasing to me, as are all the rest you have sent me, etc. i see that you like the pastor fido. but i would wish you to imitate him, and i will imitate another vienna. i hear from her that you will want to come to see me at the villa, etc. if i could only bring it about, i would more willingly be your wife than your servant. you tell me that conti is unwilling to bring any more letters for you. but let me inform you that i am wheedling him, and i have the wits to bring it about that he will carry them to you; because i say two kind words to him and he is charmed and will do what i wish. you tell me that i shall let a cord down through the lattice, but you do not tell me what evening, etc. but i tell you that the jealous one had gone to sovara, if i might speak to you. but the confessor is utterly unwilling, and for that reason i do not have you come here, because now the street door is no longer opened, but you might be able to open the back door, etc. but that fate does not wish it, and you do not. i thank you for the kisses you send me, but if you yourself could give them to me, i would hold them dear. and i give you others in reply, as many millions as you have given to me. your most faithful sweetheart. i do not know what name to give myself, whether vienna, or amarillis, or dorinda, or lilla, but i wish to call myself ariadne, for i believe i have had to be such. i wish to call myself such, only so you are not a theseus, but a chaste joseph, or a dear narcissus, or an ilago, or a fedone. adonis indeed took pity on venus, but i am none such, but even a medusa. therefore i deserve, etc. if you have read tasso, you will know who this was, etc. my beloved idol: i know of the affairs which have happened to you. i do not take it in bad part when you tell me that it is not possible to make my mother sleep, while she is ill and drinks no wine, and therefore cannot sleep. it may be in the next few days that she will get well. then i will inform you of it, etc. your faithful sweetheart, amarillis. my adored, beloved, and revered heart: i am confused at such praise, etc. you write to me oftener than you might about the doctor. you offend me by saying that i will love him again. i tell you as sure as the sun shall rise upon this world, i have not the heart for another such blow. but he who does ill, thinks ill, etc. as to what you wish to know about the wine, i tell you that it is red now, but i do not know how much longer it will be so, but i will let you know about it. sending you a thousand and a thousand, and a million of kisses, i remain, etc. come this evening at seven o'clock, because i wish to speak to you, and cough when you are under the window. amarillis. she is bursting because she cannot say, as you tell me here, that she is white as milk, and that you are darker than i. if i had been you, i might have called you ivory, as i do call you. watch this evening lest it be the jealous one, and not myself. therefore i will cough, and if you do not hear me cough, do not move. i let you know that signor guido is going out of the city, and will be gone several days. therefore i pray you come this evening about seven o'clock. and when you are under the window cough and wait a little while, that i may not make a mistake. he goes away monday morning, etc. my dearest and most deserving well-beloved: i give the infinite thanks of rosalinda, etc. i wish you to know that he makes me signals along the via del poggio, etc., and not because i wish to make proof of your love, which i know very well. you are as constant as myself, and therefore i do not wish to make these proofs, etc. so that you cannot say that i no longer love you, because all my good wishes for signor guido are turned to you, who deserve it. amarillis. _letter of the lover._ my adored signora: i wish to know whether you can leave sunday evening, that is, to-morrow evening, for if you do not go away to-morrow evening, god knows when you shall be able to do so, because of the scarcity of carriages, owing to the fact that on wednesday the bishop departs with three carriages. therefore, if you can go, as soon as you have read this letter of mine, return to the window and throw it to me as a sign that i may reserve a carriage beforehand, which may be secured from some one or other. if i secure the carriage to-morrow, in passing along there i will let fall my handkerchief one time only. then for the rest, to-morrow evening i will wait from eight o'clock in the evening on as long as necessary. and as soon as you see that they are sound asleep, open the door for me, that i may help you make up your bundles and collect the money. above all, try to put some into all their cups, and do not yourself drink it. and if by ill luck they shall find it out, and shall threaten you with death, open indeed the door, that i may die with you or free you from their hands. and praying god that he will make this design of ours turn out well, i declare myself as ever. your most faithful servant and lover, mirtillo. it is a very bad sign that the jealous one seems pacified, and that he has said you were at the window. because he will wish to find out in that way what you are doing at the window, and for what purpose you are there. for conti has told me that now he is more jealous than at first, and that if he find out about anything, he will wish to avenge himself by putting us to death. he wishes to do the same to me, and that is what will happen. here then has come at last the breaking of the chord. most beloved signora: i have received your note full of those expressions (and then loving words follow). be pleased to receive me into your bosom, in which i rest all my affections, etc. consign to the ashes this note of mine. _another letter of francesca._ my revered signor: driven by the affection which i feel for you, i am forced to contradict what i sent you yesterday evening in that letter when i said i did not wish to tell you to come here. if you did not tell me then, i tell you now that i would wish you to come here this evening at the same hour as day before yesterday evening. i have indeed thought that towers are not moved by such light blows. but if you do [not?] wish to come here (that there may be no occasion for you to break your promise to some beloved lady or even though it may not be convenient), i do not wish to be the cause. therefore if you wish to come here, pass along as soon as you have read this, etc. no. 8.--_decree of banishment of the lover._ _tuesday, september 24, 1697._ joseph maria caponsacchi, of arezzo, for complicity in flight and running away of francesca comparini, and for carnal knowledge of the same, has been banished for three years to civita vecchia. [file-title of pamphlet 8.] _by the most illustrious and most reverend lord governor of the city in criminal cases:_ _roman murder-case._ _for count guido franceschini and his associates, prisoners, against the fisc._ _new memorial of the fact and law, together with a summary, by the honourable procurator of the poor._ _at rome, in the type of the reverend apostolic chamber, 1698._ romana homicidiorum [pamphlet 8.] most illustrious and most reverend lord governor: the confession of count guido and his fellows as to the murder of francesca, his wife, and of pietro and violante comparini, his father-in-law and mother-in-law, falls far short of supporting the fisc in demanding the ordinary death penalty. but, rather, it is remarkably in our favour in excluding that penalty. for there is no longer any doubt as to the cause of the murders, namely _causa honoris_. this at first was denied by the fisc because of the presence of other causes, though these either were insufficient or were indirectly hurtful to the sense of honour. we will go over them hereafter, not "with unwashed hands." for a confession indeed should be received along with all its details, and is not to be divided according to a preconceived purpose. [citations.] this cause alone would be ground enough for demanding that he and his fellows be dealt with more mildly, if we bear in mind that _causa honoris_ is quite sufficient for the moderating of this penalty. for we have proved in our other argument that a husband may kill his adulterous wife, even after an interval, without incurring the death penalty, wherever the adultery is really proved, as the advocate of the fisc concedes in his response. ⧠_solamque suspicionem_. and in very truth, we have in our other plea adduced a great many decisions of the highest courts, wherefrom it is evident that the penalty has been diminished for husbands who have had their wives killed even by means of an assassin; and, on the contrary, no decision favourable to the fisc is cited. such an opinion is therefore to be accepted more readily, inasmuch as it is sanctioned by the greater number of authorities. and even although farinacci and rainaldi seem to take the other side, yet farinacci, in his _questions_, shows himself very much in doubt, as i have shown in my other plea; and in _cons. 141_, he shows that he is very changeable, since in _cons. 66, no. 5_, he has proved the contrary. therefore, when his attention was called to this changeableness, in excusing himself, he asserted, in the said _cons. 141_, under _no. 16_, that beatrice, in behalf of whom he had written in _cons. 66_, had been beheaded; as if this kind of rigorous sentence should be followed in practice. and may this distinguished authority pardon me, but he responds inconsistently, having forgotten what he had written in the end of _cons. 66_: that is, that beatrice was put to death not because she, after an interval, had commanded that one be put to death who was plotting against her honour, but because she did not prove her right to this latter exception, where he says: "so also there was strong hope for the sister beatrice, if she had proved the excuse she offered, as she did not prove it." but the honourable rainaldi, whose words and writings i venerate, in his _observationes criminales_ (_cap. 2_, ⧠4, _no. 156_), after he asserts that some remission from the ordinary penalty may be hoped through the benignity of the prince, does not decide the point by citing gizzarellus and giurba, who affirm that in justice the penalty should be decreased. but he goes back to what he had written (_cap. 7 in rubrica sub no. 60_), where, however, he does not openly examine the point as to murder permitted for honour's sake. otherwise he would go contrary to the general opinion of authorities, and to many decisions of the highest magistrates, that is to the common practice of the courts. [citation.] "and this opinion is followed in practice, as i find in the event of such a fact the neapolitan court has so decided." and concerning this same practice, matthã¦us likewise bears witness. [citation.] yet, as i have said, it would be enough to clear guido of conviction if only his confession be taken in its entirety without subdivision. for greater completeness, however, we offer full proofs of the adultery, as brought out in the prosecution for the flight from home. the fisc has attempted to attack these proofs lest he might have to lay down his arms; and the achilles of his pretence is solely a preposterous cross-examination, which was not admitted into the suit for permanent record. it gives the word of a certain baseborn woman, formerly a servant in the home of the accused, who was severely maltreated by guido, by the canon his brother, and by their mother. all too eagerly she narrates the ill-treatment suffered by pietro and violante, and by francesca their daughter, and his wife, respectively, especially in the matter of their food, on account of which pietro and violante preferred to return to rome. yet guido by a written agreement had bound himself to furnish food to the abovesaid couple. and furthermore it is claimed that the flight of pompilia also was necessary, because she was being threatened with death; in order that her own base desire of violating her matrimonial fidelity may not be deduced therefrom. if, however, we have any regard for the truth, the domestic affairs of the accused were not so pinched, because they were more than enough, not merely for frugal, but even for lavish living. the theft of the moneys committed by francesca in the act of flight demonstrates this. (see the prosecution for flight, pages 5, 63, and 92.) the real and true cause which moved pietro and his wife to go back to rome was undoubtedly that the mother of count guido could not bear that the aforesaid comparini should regulate family matters and should at their own pleasure dispose of everything looking toward the government of the home; this with greatest flagrancy and with none the less boldness they desired to do. furthermore, pietro took it ill that he was rebuked for leaving the company of the noble class and associating in taverns with the commonest persons in town, to the scandal of well-born men. and still more because he was compelled by the governor of the city, under fear of imprisonment, to restore certain trinkets and gems of his daughter, which he had taken away, as count guido testified in his examination (pp. 96 and 97). and this is admirably proved by a letter of the same governor recently presented by ourselves, which we give in summary, no. 1. with these statements the cross-examination of the same francesca, when arrested in her flight, agrees; in it we nowhere read that she was maltreated, nor that she ever complained of that home of decent poverty. and yet it is very probable that, to put a good face upon her flight, she would have alleged the domestic want and home miseries, if she had ever suffered them. we do not deny that disputes immediately arose between francesca and her husband, and possibly he threatened her with death. but this was for another reason, namely that she should quit the illicit amours she had begun at the suggestion of her parents, and that she should live with evident chastity as is to be read expressly in her deposition (our summary, no. 2, letter a). it is verified from the fact that francesca herself, in a letter written to abate franceschini, ingenuously confesses (summary of the fisc, no. 4, and our summary, no. 3) that her parents indeed were sowing strife between the couple, and were urging her to have recourse to the bishop under the false pretence of ill-treatment; and day and night they kept instigating her to poison her husband, her brother, and mother-in-law, to burn the house, and what is still more awful, to win a lover and return to rome in his company. nor did she fail to obey them in several of these matters. and in another letter written to the same abate, and shown by us, and given in our summary, no. 4, we read: "not now having those here who urge me to evil." of no counter-effect is the response that the single characters of the said first letter had been previously marked out by guido, and were afterward traced with a pen by herself, as she asserts in our summary, no. 2, letter k. for proof of this statement she can bring no other evidence than that she does not know how to write. summary, no. 2, letters b, h, and k. in this, furthermore, she stands most clearly convicted of falsehood by her signature, which was recognised by herself at the command of the court while she was in prison, as we find in the prosecution for flight (p. 39). she also stands convicted of falsehood by the signature of her marriage agreement, concerning the truth of which it would be ill to doubt, both because there is along with it the signature of one of the lord cardinals, and because her handwriting was recognised by herself who had written it, at the demand of the notary, as is to be seen in the copy filed in the prosecution for flight, p. 132. and, furthermore, she is convicted by the priest with whom she fled, who asserts that more than once at night he has received letters which were either thrown out of the window by her or were sent by a servant; we give his deposition in our summary, no. 5, letters a, b, c, and d. this is verified by the fiscal witness (p. 108), where we read: "and she threw down a note, as i saw very clearly, and the canon picked it up, and went away." there are, besides, the letters and sheets of paper filled with mutual love, found in the prison at castelnuovo, where they themselves were overtaken. but it is utterly impossible that the characters of these were also marked by her husband, nor is it told by whom they were written; accordingly it is to be presumed that they were devised by herself, lest she might betray their forbidden love-intrigues, which they would have to hide with the greatest care. and i pray that the abovesaid letter be submitted to our eyes, and it will be clearly seen whether the characters were formed by one not knowing how to write, but forming them in ink in imitation of certain signs, or rather by the expert hand of the woman herself. in the first place, the truth of the said letter of which we are speaking, we may gather from the letter of the governor of arezzo, in our summary, no. 1, where we find: "of much greater scandal were the flights and petitions made by the said wife, their daughter, to monsignor the bishop. these were made for no other reason than that neither she nor her parents wished to stay any longer in arezzo, but desired to return to rome. when she had been rebuked by that most prudent prelate, he always sent her home in his carriage." and this is likewise expressly deducible from another letter of the most reverend bishop, which is given in the summary, no. 6, where we read: "the more she made outcry, that much the more she had been urged thereto by the instigation of her mother." and after a few words: "i have some knowledge of this, because senator marzi-medici, who presides over the secular government of this city for our most serene grand duke, has told me all." it is verified still further by another letter of signor bartolommeo albergotti, produced by the other side, which is given in the summary of that side, no. 2, at the end. but the letter is not given in its entirety, for, where it speaks of the secretary of the bishop urging count guido and his mother, we should read there: "not to maltreat the signora for the affront offered him. after disputes enough of this kind, he took the signora back home. and she declared that she was absolutely unwilling to live with signora beatrice and with the canon girolamo, her brother-in-law." and after a few other matters: "i pray yourself and signora violante to be willing to offer a remedy by instilling the wife with a tranquil peace, which will be for the quiet of all" (as we read in page 190). this is also proved by the letter of the abate produced on the other side (p. 182), where we read: "by signor guido, my brother, several offers have been made to him, but have not been accepted; and they insist that we force our mother and the signor canon to leave the house. but this shall never be, even if there do not follow both love and concord. i will never advise that." and from the letter of signor romano, 188, later, where we read (cf. p. liv.): "i have known why she fled to monsignor, and it was because she did not wish to live with the canon and beatrice," etc. (which words are not noted in the summary of the fisc, no. 2). see for yourselves, therefore, that francesca was not maltreated, although she so deserved because of her eager and indecent recourse without cause to the most reverend bishop. hence it is evident whether the comparini left arezzo and francesca fled from home because of ill-treatment. it remains now that we see--even granting this ill-treatment--what cause of fleeing from the home of her husband francesca might have, or rather if her flight were not scandalous. this will not be difficult to make clear, if we will dwell for a little while upon the deposition of the same francesca and upon the letters found in the said prison of castelnuovo. these latter were produced by the fisc in the prosecution for flight, though they were not given recognition. the lack of this acceptance cannot stand in our way, nor do i think it can be denied that they are of the same handwriting, if they are compared with the assured writing of the command of the court. furthermore, as they contain love affairs, and the name of guido himself, no sensible person will think that they were not written by them. from her own deposition, it is evident that she was often abused for her sterility, and was terrified by threats of death on account of her love affairs with the said priest (as we see in the said summary, no. 2, letter a). nor was the cautious husband deceived, since her love increased day by day, while her conjugal affection indeed decreased just as her feeling for her lover increased. in the said letters (which are given in summary, no. 7), that priest is called: beloved, adored, mirtillus, my soul, most dearly beloved, narcissus, my eagerly craved blessing, dearest idol; and she signs herself "thy faithful sweetheart," and "amarillis." and conversely, she is called by her lover "my adored signora." and in the details of those letters is expressed her intense love and the ardour with which that unfortunate one was burning for her lover, as is evident. nor may i without shame refer to the very tender expressions of her love. but one of them, and possibly a second, i may not omit, that "from the claw, you may recognise the lion." thus in letter 17, we read: "so that you cannot say that i no longer love you; because all my good wishes for signor guido are turning toward you, who deserve it." and this possibly is the reason why she refused to lie with her husband, as the said letter of signor albergotti points out, where he says: "the signora has been melancholy, and two evenings after your departure she made a big disturbance, because she did not wish to go and sleep with signor guido, her husband, which displeases me very much." in the first letter [we read]: "my affection no longer has any rein"; in the fourth: "i am ready to do what i have told you"; in the tenth: "i will suffer quietly the pains which are pleasing to you." and it would be a long task and a disgusting one, to tell them over singly. for she was unwilling to conform herself to the chaste manners of arezzo, accustomed as she was to living a freer life. this may be read in the letter of abate franceschini produced by the other side (page 179), and following, where we read: "these occasions for bitterness, which have arisen between yourselves and signor guido, i do not wish to examine. i know enough to say that this has arisen from your wishing to turn the wife from what, according to the custom of the country, her husband both may and ought to do. because over the wife god has given him authority, and likewise it is the general usage and the custom of the country. if yourself and signor pietro should stand in the way of this, you would do wrong, and it would be the duty of the husband to admonish his wife." and in another letter, p. 124, we read: "i cannot persuade myself that my mother and brothers would conduct themselves in such a way as to force her to have such recourse." and after a few words we read: "and know well that what i have endeavoured by my words to urge upon signora francesca, signor pietro, and yourself is only out of pure zeal for the honour of your house and of yourselves." on the other hand, the same thing is to be drawn from the letter of the said priest (as we read in letter 20): "i have received your notes, full of those expressions [of love], etc. be pleased to receive me into your bosom, in which i rest all my affections." and the letters which have reference to the flight give clear proof of the mutual exchange of affection, as is well proved by the effect that followed. thus, in letter 18, we read: "i wish to know whether you can leave sunday evening, that is to-morrow evening; for if you do not go away to-morrow evening, god knows when you will go, because of the scarcity of carriages." and after a few intervening words: "as soon as you see that they are sound asleep, open the door for me, so that i may help you make up your bundles and collect the money." and after a few more words: "praying god that he will make this design of ours turn out well." and letter 19 of the same lover, in which proofs of love are given by no means obscurely, also shows us of what quality those loves were, where we read: "that the jealous one seems pacified, and that he has said you were at the window, is a very bad sign; because he will wish to find out in that way what you do at the window, and for what purpose you are there. for [conti] has told me that now he is more jealous than at first, and that if he find out anything he will wish to avenge himself by putting you to death and will wish to find means to do the same to me." it is proved still further that the wretched accused complained bitterly that she was not content merely with a single lover at arezzo, but that she has been defiled by many suitors, so that she multiplied the disgraces to his house (page 98), and following. we also read clearly in the seventh letter: "i met signor doctor, as usual. he asked me where i was going, and along the street he asked me why i had written scornfully to him. i told him that he deserved even worse, because he had given evil deeds and good words; for he had said he was fond of me, that he wished him and the rest of them 'in sovara.'" and in the thirteenth: "as to the doctor, you offend me by saying that i will love him again. i tell you, as sure as the sun shall rise, i have not the heart for another such blow." it is therefore quite evident whether francesca had an honest cause for leaving the home of her husband, or whether she was not rather impelled by the more urgent spurs of love. it may be said now that these letters were sent for a good purpose, that the priest might be induced to accompany her so that she might shun the danger of death, since she found herself therein without any just cause. and it may be said that she could have kept her modesty uninjured in the company of her lover. but since without doubt the amorous expressions used in the letters do not show chastity of mind and a modest disposition, and as just cause for flight is lacking, the veil wherewith her viciousness tried to hide itself is destroyed. i acknowledge that judith, who was an entirely chaste widow, of decorous appearance and fine looking in many ways, made advances toward a very licentious enemy; but this was for the purpose of accomplishing a pious work, namely, to liberate her own native land. she was provided not with lascivious letters, but with earnest words, the unimpaired modesty of which it were evil to doubt, since she was moved by the breath of the holy spirit. but to-day, how very few judiths are found; yet the daughters of lot are multiplied, who when they could not preserve their sense of shame even in their father's company made him drunken with wine, lest he, when sober, would deny them because they were sinning weakly, so that, when out of his own mind, he was involuntarily polluted with nefarious incest. (genesis, chapter 29.) do we believe that a girl who was dying for love, and who burned most ardently for the company of the loving cupid and her lover, would keep safe her modesty during a long journey? which modesty i only wish she had preserved in the home of her husband! and even if guido had imposed upon her, without due reason, a just fear of death, she should not therefore have increased his suspicion of base and lustful acquaintanceship by choosing as her companion in flight that priest whom her husband had suspected; for caponsacchi was not at all related to herself or her husband, as each of them confesses in our summary, no. 2, letter g, and no. 5, letter e. thus she would prove her dishonour. but while still guarding carefully her matronly shame, she might either have entered some monastery with the help of some church official, if she had used truth and not falsehoods; or she might have had recourse to the civil governor, who, after examining all things, would have afforded her a safe return to the city in company with honest men and women; or he might have placed her in the home of some honest matron, with due safeguards. but even if she had no faith in either of these, and was determined to go back to rome, she might at least have entered upon the journey with one of the servants. likewise, the other excuse for putting an honest face on the illicit amour falls to the ground--namely, that concerning the aforesaid flight another priest, the brother-in-law of the sister-in-law of the said francesca, was informed. for if the abovesaid letters are read through carefully, the suspicion of illicit correspondence with his connivance is very greatly increased. we read in letter 11: "you tell me that [conti] is unwilling to bring letters for you. but let me inform you that i am wheedling him; and i have the wits to bring it about that he will carry them for you. because i say two kind words to him, and he is charmed and will do what i wish." and in letter 19 of the lover: "for he has told me that now he is more jealous than at first, and that if he finds out about anything, he will wish to avenge himself." but who would judge that we can deduce from the said words that their mutual love was chaste, because another priest was aware of it. i know that for francesca to show herself at the window at the hiss of her lover in company with the other priest does not savour well. of this a witness for the fisc, in the prosecution for flight, gives oath (pp. 107-8). therefore, not without cause did count guido have suspicion also of the other priest, as francesca herself asserted in her deposition in our summary, no. 2, before letter a. these [two] things are taken as proved therefore: [first] that it is not established that francesca was threatened with death without just and legitimate cause, and [second] that a most suspicious correspondence with her lover is established. it will follow that the threats were offered by her husband to preserve his honour, and so it was in the power of francesca to free herself from these threats without scandal, without flight, and without shame, by living chastely. she, however, was too prone to the tickling of the flesh, and had deferred all things to the fulfilling of her vicious desire, without respect to her violation of conjugal faith. it is all too foolish to doubt her utter recklessness, since it is manifestly evident from matters brought forward in the prosecution for flight, and especially from the reciprocal love between the lovers, etc. it is also clear from the letters containing such very tender expressions. [citations.] as to the entry and egress of the said priest from the home of francesca at a suspicious time, a witness for the prosecution testifies (p. 107): "at the sound of the ave maria, while i was at the same window, i saw the door of the said signori franceschini open very softly, and from it passed the said signor, etc. he pulled the door to as he went out, but did not in fact close it, and therefrom, after a little while, i saw the said signora francesca pompilia, with a light in her hand, who closed the said door." it is also proved from letter 11, where we read: "for that reason, i do not have you come here because now the street-door is no longer opened, but you might be able to open the back-door," etc. this of itself is enough to prove adultery, even when trial is being made to demand punishment therefore. [citations.] her leaning from the window at a hiss, day and night, and their mutual nods, concerning which a witness testifies, p. 108, are quite enough to prove carnal communication. [citations.] then there is the manner in which they prepared for the flight, which includes, as i may say, a show of treachery, as is to be understood from the letter of the priest, no. 18, where [we read]: "above all, try to put some into all their cups, but do not yourself drink it." for in seeking an opportunity to mingle an opiate for them, he was inquiring what coloured wine they were drinking in the home, lest, as i suppose, the colour of it when altered by the drug mixed therewith might betray their plots. so in letter 4, where we read: "then, further, if they continue to drink the red wine i will tell you so." in no. 12: "when you tell me that it is not possible to make my mother sleep, while she is ill, and drinks no wine." and in letter 13: "as to what you wish to know about the wine, i tell you that it is red now, but i do not know how much longer it will be so; but i will let you know about it." still further this most wretched wife was moved with a burning ardour for the said priest, as is noted in letters 5 and 21; this is usually conceived by lovers only. therefore, since it is undeniable that the carnal love was reciprocal between them, i think it can not be doubted that her departure from the home of her husband and their association through a long journey, prove their adultery. [citations.] in the progress of the journey kisses were given on both sides; of this the witness for the prosecution testifies; but i do not find in the evidence that he saw these at night, as is supposed by the other side; for page 100 asserts "i only saw that at times they kissed each other." and these kisses francesca so strongly desired to give and to receive likewise, that in letter 11 [we read]: "i thank you for the kisses you send me; but if yourself could give them to me, i would hold them dear. i give you as many million more." and in letter 10: "and giving you an amorous kiss." and in 5: "i say good-bye with a million kisses." and here and there in the other letters. these render the adultery not at all doubtful, so much so that there are not wanting authorities who assert that when the kiss is proved the adultery may be said to be proved. [citations.] therefore, unless i am very much mistaken, no one who knew what we have recounted could be found so senseless and so weak-minded as not to believe strongly that when they were found in the inn her matronly shame had been tampered with, either during the journey or at night while they were taking their rest, or more probably in the morning while they were enjoying each other's society. but passing over the fact that the priest was clothed in laic garb (pp. 4 and 100), which affords no small weight for the proof of the adultery, all further doubts are removed, since they arrived together at the tavern of castelnuovo at half-past seven at night, as three witnesses for the prosecution agree in swearing (pp. 44, 47, 49). and although two beds were in the chamber, only one indeed did the said priest wish to have made ready, and all night long, behind closed doors, he rested alone with her (if lovers can rest); from this the adultery is proved without doubt. [citations.] this proof indeed becomes all the stronger from the lie of francesca, who asserts that they arrived at the said tavern at dawn (summary, no. 2, letters f and l). for if no evil had been done she would not have attempted to hide the truth. [citation.] finally, the sentence or decree of this tribunal, which is given in summary, no. 8, where the said priest is condemned for carnal knowledge of francesca, removes all doubt; because the adultery is thereby rendered infamous, as was proved in our other argument. and though it is asserted that it was in the minds of the lords judges to modify this sentence and to add "for pretended carnal knowledge," yet it never was thus modified. and yet such modification would not have stood in the way after it had reached the ears of the luckless husband that the adultery of his wife had been made manifest and notorious and had been confirmed by the judges' decree. but certainly, even if we are cut off from this proof, their carnal communication remains more than sufficiently proved for our purpose; for we are arguing not for the infliction of the penalty of adultery, but we have deduced the adultery for exclusion of a penalty. [citations.] for it is quite customary that, for a civil purpose, such as divorce or loss of dowry, adultery is abundantly proved by circumstantial evidence. [citations]. nor is it of consequence that some of the stronger proofs are proved by single witnesses; for we are arguing to establish dishonesty and adultery in kind; not for the purpose of condemning the adulteress, but for the defence of the accused. and the reason is very evident, because to excuse a husband from the murder of his adulterous wife after an interval, an exact proof of the adultery is not required, but strong suspicion of adultery is quite abundant, as sanfelicius testifies it was decided (_dec. 337, num. 13_). but we are upon firmer grounds, because we not only have strong suspicions drawn from single witnesses, but other finely proved grounds, yes, the clearest of proofs, deduced by the prosecution. very little does it stand in the way of this proof of her guilt that francesca, when near to death, tried to exculpate herself and her lover by asserting that there had been no sin between them; for this kind of exculpation, which is all too much a matter of pretence, might help her companion just as theretofore she had brought blame upon him; and by no other proof might his inculpation have been removed. this would indeed aid her fellow, but not herself. but since she stands convicted by the abovesaid proofs of having broken her matrimonial faith, it would be absurd that an exculpation made that she might seem to die an honest woman, should be of such efficiency as to destroy the proofs of her baseness. [citations.] and what is more horrible, that from the said exculpation, her murderer might be the more severely punished. i have faith, and this helps me to hope, that her soul rests in eternal safety, by divine aid, since she had time to hate her previous life. but no man of sense could praise her testamentary disposition, in which she appointed as her sole heir her son, who, as i hear, was but just born and hence innocent, and who had been hidden away from his father, and which appointed as residuary legatee a stranger joined by no bond of relationship. from these considerations, therefore, it is plain that the adultery of francesca is fully proved. hence according to the opinion of the fisc, her murder, even if committed after an interval, is not to be expiated by the death penalty; not only because of the justly conceived grievance, but because the injury to the honour always keeps its strength, according to the sentiment of virgil in the _ã�neid_, book i: "keeping an eternal wound within the breast." it is of no force in response to this that he did not kill his wife and the adulterer, whom he had overtaken at the inn of castelnuovo, but that he merely saw to their imprisonment; as if that, after his recourse to the judge, he could not with his own hand avenge his honour. for we deny in the face of all heaven that he could have killed either of them, because he was worn out by the rapid journey, and was so perturbed by the agitation of his mind, that he was seized by a fever. and furthermore he had heard that the said priest was armed with firearms, as he asserted in the prosecution for flight, at a time when his word cannot be suspected, because the murders had not yet been committed (pp. 76 and 77). it is also true that the priest was a terrible fellow, according to the witness for the prosecution (p. 167), and as francesca herself confesses. elsewhere, the accused speaks of the taking away of an arquebus pointed at the officers, as he himself asserts (p. 71). and, furthermore, caponsacchi was all too prompt and too much disposed to resisting, as we read in letter 18. there, in speaking of the opiate to be given to the domestics, he adds: "if by ill luck they shall find it out and shall threaten you with death, open the door, that i may die with you, or free you from their hands." and the wife, indeed, was unterrified, full of threatening, angered, and even furious, as the outcome proved; since when captured by the posse of the ecclesiastical court, she dared in the very presence of the officers and other witnesses to rush upon her husband with drawn sword. and she would easily have killed him, if she had not been hindered (p. 50). he, indeed, weak, as he is, and of insufficient strength, could not have taken vengeance by killing both, or either of them, provided as he was with only a traveller's sword. hence, as he was not able to kill them, he saw to their imprisonment in the confusion of his mind, in order that he might prevent the continuation of his disgrace, and thus might hinder their future adultery. but, indeed, even if he could have killed them, and did not do so, he would be praiseworthy; for up to that time the adultery had not been made notorious by the sentence of the judge, and only strong suspicions of it were urging him on. but as for the recourse to the judge, whereby it can be claimed that he renounced the right to kill his adulterous wife, which we deny, i pray you note that the tribunal acted prudently in placing francesca in the monastery, that she might be kept more decently than in a prison. then when it received the attestation of the physician as to her condition, lest she might be kept there destitute of necessary aids, and so might undergo punishment in the very course of events (which is everywhere avoided), after obtaining the consent of abate franceschini, brother of the accused, the court permitted her to be placed in the home of her parents with the warning to keep that home as a prison. but i cannot commend any one, whoever he may be, who tried to get francesca from the monastery under the false pretence of ill health, since he could legitimately and with more decency have succeeded in his intent by laying bare the truth, namely her pregnancy. but this was done for no other reasons than these: either that the son might be hidden away from count guido, since the law presumes that he was born of his legitimate father, although his wife had shown herself incontinent; or else francesca, believing that the child was conceived of some one else, possibly was trying to hide from her husband the fact of her pregnancy. and now in the meantime, let it please my most illustrious lord to turn his eyes toward arezzo and for a little while to think of count guido stained with infamy, when the decree of condemnation for adultery reached his ears. the adulteress was still unpunished, and he was ignorant of the fact that she could not be punished, owing to her supposed ill health, and that during her pregnancy, which she had so carefully hidden from him, she was unsuited to the vengeance of the sword. furthermore, when he saw that francesca had gone back to that very suspicious home of pietro and violante, who had instilled francesca with dishonesty, had repudiated her, and had professed that she was the daughter of a harlot, he lost all patience, as is evident from the deposition of blasio (p. 318), where we read: "but still further, she had been received back into the home, after she ran away from guido, although the latter had put her in a monastery." this change drove to desperation her luckless husband, who was at least an honourable man. therefore his recourse to the judge ought not to increase the penalty for him. we do not deny that abate franceschini had given consent to the removal of francesca to the home of pietro and violante (in order that we may yield to our respect for my lord advocate of the fisc), but only on verbal representation, for i have not been able to see it in writing. but, for our proposition, this does not affect count guido, since it is not made clear that he was informed of such consent, and thus far the fisc merely presumes that he had been informed by abate franceschini, his brother, of this consent. [citation.] we are compelled to affirm that this knowledge is not to be presumed as is shown below, or at the very worst there is present only presumptive knowledge. and i do not think that on this kind of merely presumptive knowledge the death penalty can be demanded, nor can count guido be condemned, since he has neither confessed nor been convicted of such knowledge: chapter _nos in quemquam_, where we read: "we cannot inflict sentence upon any one unless he is either convicted or has confessed of his own accord." indeed, what if count guido had acknowledged that he had written the consent furnished by the abate, his brother, since it had no special authorisation for that particular matter; nor a general authorisation to conduct litigation, but only to receive moneys taken from himself by francesca, as is to be seen (p. 136). by exceeding the limit of his power, abate paolo would have exasperated the mind of guido; for the luckless man was already burning so with rage at the temerity of francesca, pietro, and violante, that he was almost driven, i might say, to taking vengeance. he had put this off as long as he had any hope that he might have the marriage annulled because of mistake concerning the person married. for he was ignorant of the point of canon law that error as to the nature of the person contracted does not render a marriage null, but only an error as to the individual. [citation.] nor does it amount to anything that francesca, at the time she was killed, was under surety to keep the home as a prison, as if she were resting in the custody of the prince. for, however that may be, even if the accused had killed francesca to the offence of the prince, yet since he wished to recover his honour and to remove with her blood the unjust stains upon his reputation, for this particular reason the aforesaid custody is not to be given attention, nor does it increase the crime; as in the more extreme case of one injuring a person having safe-conduct from the prince, farinacci affirms in making a distinction [citation] where knowledge thereof is not to be presumed. furthermore, when we speak of custody we should understand it to apply to public custody and not to a private home as was proved in our other argument. nor is the response enough that this would hold good in the one under custody, but not concerning the custodian, violante; for i do not know any probable distinction between the two, since both cases may suffice for escaping the penalty; nor is any stronger reason to be found for the one than for the other. and indeed a third case would be more worthy of excuse, of one who broke this kind of custody, when knowledge thereof was not proved. because such an offence might arise under such custody, just as one who had killed a person under bann, but ignorant of that bann, excused himself. [citations.] if therefore count guido is not to be punished for murder of his wife, for the same reason he cannot be punished for the murder of pietro and violante, because these murders were committed for the same cause, _causa honoris_. for at their instigation, francesca found her lover, and still more, in order that they might disgrace guido, they did not blush to declare that francesca had been conceived illegitimately, and had been born of a harlot. this greatly blackens the honour of an entire house, as gratian observes [citation]; for the daughters of such are usually like their mothers. then also, as i have said above, the accused burned with anger when he had notice of the return of francesca to their home (p. 318), and the following. and alexander proves this in his confession where he says (p. 646): "so that he had to kill his wife, his mother-in-law, and his father-in-law: because the said mother-in-law and father-in-law had a hand in making their daughter do evil, and had acted as ruffians to him." this following fact makes it all the clearer, because on the fatal evening when they were slain, at the knock on the door, and as soon as violante heard the much beloved name of the lover, straightway she opened it. and thus she showed, unless i am mistaken, what removes all doubt that pietro and violante were not at all offended with the love affairs of their daughter and her lover. it is all one, because we are compelled to acknowledge either [first] that the comparini had done new injury to his honour by receiving her into their home after they had declared that she was not their daughter, and after her adultery was clearly manifest, and hence there should be departure from the ordinary penalty. [citation.] for just indignation, when once conceived, always oppresses the heart and urges one to take vengeance. [citation.] or else [secondly] we must acknowledge a cause of just anger continued, and indeed was increased, which is quite enough foundation for asserting that the murders were committed incontinently. [citations.] since, then, from the confession of count guido as well as from that of his associates, and since from so very many proofs brought forward in the trial, it is evident that guido was moved to kill them by his sense of injured honour, in vain does the fisc pretend that for some other remote reason he committed the crimes. for, to tell the truth, i find no other cause which does not touch and wound the honour, if we only bear in mind what guido has said in the trial (pp. 96 and 97): namely, that the comparini had arranged the flight of francesca and had plotted against his life. this alone would be enough to free him from the ordinary penalty. bertazzolus and grammaticus [citation], testify that a man was punished more mildly who had had one who threatened him killed, though the threats were not clearly proved. [citations.] "and the death which he had threatened fell upon himself, and what he planned he incurred," and also: "there is no doubt that one who had gone with the intention of inflicting death seems to have been slain justly." another cause of the murder alleged by the fisc is the lawsuit brought to annul the promise of dowry. upon this point a complete and a very skilful examination was made by the other side, and because of this it was pretended that he had incurred the penalties of the alexandrian constitution and of the banns. but this pretence in fact soon vanishes. for if we look into it well we shall find, without difficulty, that a cause of this kind is no less offensive to the sense of honour. for the ground on which pietro had attempted to free himself from the obligation to furnish the promised dowry was this solely: that francesca was not his own daughter, but the child of an unknown father and of a harlot. every man, however, well knows whether this kind of a declaration would wound the reputation of a nobleman. whether or not a pretence of this kind could have found a place for itself before we had the confessions of count guido and his companions, as i have said above (for then the fisc might have been in doubt how guido could be moved to kill her), yet thereafter it was clear from the confessions of them all that the sense of injured honour had given him the impulse, and had even compelled him to the killing, as count guido asserts (p. 678) where we read: "to inflict wounds upon them, inasmuch as they had injured my honour, which is the chief thing." vain is it to inquire whether he had killed them for some other reason, because, as it was clearly for honour's sake, the fisc never could prove that they were killed on account of the lawsuit, and not on account of honour, as is required for the incurring of the penalty of the aforesaid bull. [citation.] these statements are apt also as regards the murder of francesca, who had sought a divorce. for if she had made pretence of being separated from him for any other reason, and if her dishonour were not perfectly clear, then indeed there might be room for the alexandrian constitution. but since wounded honour gave occasion for the murder, we are far beyond the conditions of the alexandrian constitution. otherwise a very fine way would be found for wives to act the prostitute with impunity. for if it were possible, after adultery was admitted, to bring suit for divorce, they would find a safe refuge to escape the hands of justly angered husbands, and would be rendered safe by the protection of the said bull even though the divorce was not obtained and though the husbands had been offended because of their dishonour. but still less can such capital punishment be inflicted upon guido on the pretext that he assembled armed men, contrary to the rule of the apostolic constitutions and banns. for whenever the question is whether a husband may assemble men to kill his adulterous wife, we are still beyond the conditions of the constitutions; for they have place whenever men are assembled for an indeterminate crime, and crime does not follow; then indeed the provisions of the bull are applicable. but whenever men are joined together to commit crimes, and these actually follow, attention is directed to the end for which the men had been assembled, and the punishment for that is pronounced, nor is there any further inquiry concerning the beginning (that is, the assembling), as i have proved in my other argument. and i now add another citation [citations], where after the question was disputed, he asserts: "but certainly, notwithstanding what has been said above, in the current case, i do not believe there should be any departure from the decision of so many men, whom we may well believe have considered and written the entire matter with maturity and prudence for our most sacred lord clement viii." and at the end of this addition, it is testified that the apostolic chamber had so decided it at the order of the said pope. [citation.] this is also proved by the banns of my most illustrious lord governor, chapter 82, where they impose a penalty for assembling men for an evil end, if the evil end may not have followed. but they decide nothing when the crime for which the men had been assembled had been put into execution, because in this case the penalties for assembling cease and only the penalty for the crime committed is inflicted, as was said above. and that the assembling of men for the purpose of recovering one's reputation does not fall under the penalties of the apostolic constitutions (see _farinaccius_, _cons. 65_, _no. 66_). finally, the matter of carrying prohibited arms is still left for consideration. even if some authorities have asserted that this is not to be confounded with the principal crime, yet the contrary opinion is held by the majority; for the purpose is to be considered, which the delinquent chiefly had in mind. so bartolo holds in our very circumstances. [citations.] and on the point that one killing for honour's sake, with prohibited arms, is still to be punished more mildly, matthã¦us testifies that it has been so judged. [citation.] this also holds good in the more extreme case of several crimes, which can easily be committed separately and which tend toward different ends; yet, if they are committed at the same time and for the same end, the punishment only for the crime which was chiefly in mind is imposed. thus, if one wishing to commit theft climb over the walls of the city, even though he could commit that deed without the crime of crossing the wall (which is a very grave crime, according to farinaccius, _quaest. 20_, _no. 146_), even then only a single penalty, namely that for theft, is inflicted, as the one chiefly in mind; and this is a little harsher than that for crossing the walls of the city, but is not of utmost severity. [citations.] nor does it escape my notice that the banns of our most illustrious lord governor, chapter 8, seem to settle the question by deciding that the punishment for carrying arms ought not to be confounded with punishment for the crime committed therewith. nor do i fail to see, still further, that these banns do not include one of the companions, who was a foreigner and not of that district. but since by common law these banns receive a passive interpretation whenever arms are not borne for an ill end, and then some crime is committed with them (because the delinquent did not have in mind the crime which he committed), he is punished for both crimes, because at divers times he committed different crimes. but when any one bears prohibited arms with the purpose of murder, and then commits the murder, the chief crime of homicide, in view of which he bore the arms, is considered and the penalty for murder is inflicted, but not that for carrying the arms. [citations.] i beg you note that this crime in question is made important from the fact that those three who had no fear of ill, but who ought by all means to have feared, were slain, and not because of the kind of arms with which they were slain. the number of the victims, and not the instrument of their death, excited astonishment, and it would have been the very same if they had been slain with the longest of swords, or with sticks, or with stones. therefore it would indeed be a very hard matter that the fisc should be aflame over these murders, and not being able to demand the death penalty for them, should demand it for the carrying of arms. but beside this, count guido denies expressly that he owned, carried, or kept arms of unlawful measure. and although it is asserted by the four associates that at the time of the murders guido had in his hands a short knife, and had given the same kind of arms to his companions, yet these could not doom him to the ordinary penalty. thus farinaccius and others affirm after this matter has been well discussed and the contrary opinion confuted. [citations.] nor does he deny that he had on his person a dagger which was entirely lawful. but he did not have it with him at the murder, nor did he carry it for the murder, but only to defend himself if he should find in the aforesaid home outsiders ready to use force against him. and that was permissible to him; for there is ample right to bear arms of this kind throughout the ecclesiastical state, and (i may boldly add) even in the very city. because no mention is made of the city, although some places are excepted; according to that very true axiom: "the exception proves the rule in what is not excepted." [citations.] and he could the more readily believe that it was permissible for him to do so, because he had enemies in the city who threatened him there and made plots against him, as guido himself says; and therefore the bearing of arms of this kind was more necessary here than elsewhere. nor is it to the point that, because it is claimed he had killed with forethought, the privilege of bearing this kind of arms should not be granted him. for aside from what is said above and in the other argument establishing the fact that the aforesaid crimes were "for honour's sake," they cannot be said to be committed "after an interval." the objection might hold good if he had used the arms in the murder, but as this is not established, it does not seem possible to deny him the right to carry the arms. in any case, although strictly speaking he could be said to have done the killing when armed with the said arms, yet he should not be punished with the extreme penalty of death. in _caballus_, _case 90_, _no. 7_: "yet in fact in these cases, i have never seen the death penalty follow, but by grace it is commuted to a milder penalty." finally, he cannot be said to have incurred the penalty for prohibited arms from the fact that he was present at the murders committed by his associates with such arms; because the penalty of this kind which is due to one furnishing the said arms does not extend to the helpers and assistants. [citations.] i do not speak of domenico and francesco, because these last two, as foreigners, are not bound by our banns. but all matters fight for all of them, and every single ground for the diminution of the punishment, which favours count guido, also favours them all; since accessories are not to be judged on different grounds from the principal, as i have shown in my other argument. there i cited, not the authority of one or another doctor singly, but the decisions of the highest magistrates. clar also testifies that this opinion has been observed in actual practice. (⧠_homicidium_, _sub no. 51_). but i earnestly beg that my most illustrious lord will be pleased to consider with kindly countenance and untroubled vision that count guido did the killing that his honour, which had been buried in infamy, might rise again. he killed his wife, who had been his shame, and her parents, who had set aside all truthfulness and had repudiated their daughter. nor had they blushed to declare that she was born of a harlot, in order that he might be disgraced. they also perverted her mind, and not merely solicited, but even by the strength of her filial obligation compelled her to illicit amours. he killed her lest he might live longer in disgrace, loathed by his relatives, pointed out by the noble, abandoned by his friends, and laughed at by all. he killed her, indeed, in that city which in olden days had seen a noble matron wash away the stains of shame with her own blood--stains which against her will the son of a king had imposed upon her. and thus she expiated the violent fault of another by her own death. (see valerius maximus and titus livius.) this city also saw a father go entirely unpunished, and even receive praise, who had stained his hands with the murder of his daughter, lest she might be dragged away to shame. [citations.] so much did the fear of losing his honour weigh upon his heart, that he preferred to be deprived of his daughter rather than that she should continue to live in dishonour, even against her own wish. count guido did the killing in their own home, that the adulteress and her parents, who were aware of her crime, might find out that no place nor refuge whatsoever was safe from and impenetrable by one whose honour had been wounded. he killed them lest deeds of shame might be continued there, and that the home which had been witness of these disgraces might also be witness of their punishment. he killed them because in no other way could his reputation, which had been so enormously wounded, find healing. he killed them that he might afford wives an example that the sacred laws of marriage should be religiously kept. he killed them, finally, that either he might live honourably among men, or at least might fall the pitied victim of his own offended honour. giacinto arcangeli, _procurator of the poor_. [file-title of pamphlet 9.] _by the most illustrious and most reverend lord governor of the city in criminal cases_: _roman murder-case._ _for count guido franceschini and his associates, prisoners, against the fisc._ _new memorial of law, by the advocate of the poor._ _at rome, in the type of the reverend apostolic chamber, 1698._ romana homicidiorum [pamphlet 9.] most illustrious and most reverend lord: the confessions of count guido franceschini, and of domenico gambassini, francesco pasquini and alessandro baldeschi, his companions, are null; and therefore they should be given no consideration, as they issued under fear of the rigorous torment of the vigil, unjustly decreed against them. [citations.] and this is true even though they still persevere in the same confessions. [citations.] for as we have said in our past argument (which may be reassumed here by favour), the constitution of paul v., of sacred memory, issued for the reformation of the tribunals of the city [citation], commands that this torture be not inflicted except under two concurrent circumstances. one of these is that the accused be under the strongest of proofs, and the other that the crime be very atrocious. and the authorities alleged in my argument, ⧠_quatenus_, etc., testify that it has been so practised. nor indeed can the asserted [discretionary] powers of this tribunal give support; because, whatever they may be, they have no place unless the crimes are punishable by death. raynaldus [citation] gives this reason: whenever the defendant should not be condemned to death, he also should not, for the purpose of getting confession from him, be exposed to torture which might cause death, as it almost caused the death of alessandro, who fainted dead away under two turns at the same torture. but the crime, which has been imputed to count guido and his helpers, and which they themselves have confessed, is murder neither of the first nor of the second degree, as was fully proved in my past argument. and indeed since count guido was moved to kill or to have killed both francesca pompilia, his wife, and pietro and violante, his parents-in-law, because of his sense of honour; namely, on account of the adultery which francesca pompilia committed with their conspiracy and aid, this fact relieves from the penalty of death, not merely himself (according to the texts and authorities alleged in my said argument) [citations], but also his helpers (according to the authorities likewise alleged in said argument). [citations.] gabriel states: "and much less ought those to be punished with death, because if we will only examine the common opinion of wise men, just anger may excuse from a graver penalty than this; for according to the gracchian law, code concerning adultery, even those who are called and led to the crime should likewise be excused." aside from what may be claimed in this present state of the case, that the plea of injured honour is not established, the decree in condemnation of the canon caponsacchi for the said adultery issued in this tribunal, september 24, last past, and given in full in our summary, no. 8, makes the matter clear and manifest. [citations.] for it is there said: "joseph maria caponsacchi, of arezzo, for complicity in the flight and running away of francesca comparini, and for carnal knowledge of the same, has been banished for three years to civita vecchia." nor can these words be said to be merely the title of the case, which does not make any one guilty, as my lord advocate of the fisc supposes; but the very decree and the title of the case, as seen by me in the original process, was that which follows: _aretii in etruria fug㦠a viro_. but, in brief, the said canon was condemned merely to the said punishment because he was a foreigner and had committed his crime outside of this state; in such case he should be dismissed merely with exile. [citation.] nor is it true that the court receded from the said decree and still less that a modification of it was demanded. for we have no other fact than that for the purpose of giving some little indulgence to the still asserted honour of the wife and to the decorum of the said canon, for which the procurator of the poor, their defender, kept sharply and incessantly urging, in the command for imprisonment, instead of the words of the said decree, these other words were applied: _pro causa de qua in actis_. these words do not imply the correction of the preceding words, but indeed the virtual insertion of all the acts, and consequently of this same decree also. [citations.] and this is all the more true because the said decree could not be changed unless both sides were heard; which, as i remember, was the response given to the said procurator when he insisted upon the said modification. [citations.] but why should i now insist on former matters when there is such conclusive proof of the adultery and further dishonour of the said wife from the many strong reasons deduced in the present stage of the case, and well weighed by my honourable colleague, the procurator of the poor, in his customary excellent manner? (i do not here repeat them, that i may avoid useless superfluity.) hence there is left no room for doubt as to the outraged honour, which indeed impelled count guido to the commission of crime. for it would be quite enough that a cause of this kind be verified, even after one has committed the crime, as bertazzolus advises on this point. [citations.] still further, there is no need now to insist on past matters because count guido has stated the plea of injured honour not merely against his wife, but against his parents-in-law in his confession (especially page 98): "thereupon followed her flight, which was so disgraceful, not merely to my house, which is noble, and would have been so to any house whatsoever, even if of low estate. she made this escape by night with canon caponsacchi and his companions. in the progress of her flight along with the driver of the carriage, she was seen by the said driver, kissing and embracing the abovesaid canon. still further, i have found out that they slept together at foligno in the posthouse and then again at castelnuovo. by such proof, she stands convicted as an adulteress, not merely for this, but for other like excesses, which i have since heard that she committed in arezzo with other persons." and page 672, where we read: "and when the said santi was asked whether he would give ear to offering an affront to the comparini, because of my honour and the plots they had made against my life, alessandro responded that he would do it, and if some one else were necessary he would find him. accordingly, after a few days, i received in my home biagio, who has been twice named above, in company with the abovesaid santi, and he said that he also would give ear to it, as being specially a question of my honour and the contrivance against my life." and at page 678: "and while we were staying in the same vineyard, that is in the house within it, we spoke of various matters and particularly of what was to be done, namely of the affronts to be offered to the comparini (that is to pietro, violante, and francesca, my wife) and of wounding them because they had taken away my honour, which is the chief thing, and had also plotted against my life." and at page 683, near the bottom, we read: "and i would have so much to say that one might write from now till to-morrow morning, if i wished to tell all the trouble and expense i have suffered from the said comparini. but all this would amount to nothing, if they had not touched my honour and plotted against my life." and page 684: "the santi above-named was a labourer of mine at my villa of vittiano, and consequently was informed of all these troubles i had suffered at the hands of the said comparini. he also knew of the very indecent flight made by my wife in the manner elsewhere told. the abovesaid alessandro then began of his own accord to seek me out and did find me, so that he might give ear, in the event that i should wish to avenge my honour and the plots which they had made against my life." and page 699: "and she together with canon caponsacchi was overtaken by myself at castelnuovo, where they were arrested by the officers and conducted to these prisons. in the court, many a time i laid stress on the crime of her supposed conception in order that they might be punished. i never having seen what would be considered expedient in an affair of such importance to my honour, have been obliged to take some resolution for recovering it, because the comparini, with greatest infamy, had transferred to me their own ignominy." and page 722: "and what i said to alessandro, biagio, and domenico, i also said to francesco once when he, knowing the offences against my honour which i had suffered, asked me if i were ready to give a beating to my said wife. and i then replied to him that she deserved not merely a beating, but death." such a confession should be accepted with its own qualifications, for the fisc cannot divide and detach this from it (according to the usual theory). [citations.] this is undoubtedly true, when, as in the present case, one is arguing for the infliction of the ordinary penalty, whatever may be said, according to some authorities, for the infliction of an extraordinary penalty. [citations.] ludovicus extends this conclusion to all qualified confessions in any kind of crime. this is true especially when the qualification is not merely propped up in some way, but is conclusively proved. [citations.] for beside the said decree, and the other considerations above, we have his fellows in crime especially swearing that their services were required by count guido for committing crime in his very company for the abovesaid reason. especially is this the case with blasio agostinelli, page 316: "signor guido told me that his wife had fled from him in company of an abate, and had carried away some money and jewellery. he led me into the very room where she had robbed him of the said jewellery and money, and told me that he wished to go to rome to kill his wife, and that he wished that i and the said alessandro would go with him," etc. and page 317: "at the above time the said guido told me that his wife, for the purpose of fleeing securely with the said abate, and that he might not perceive it, had mixed an opiate in the wine for dinner to put himself and all the rest of them to sleep. he also said that he was in litigation with his father-in-law, who had not merely sworn that the said wife was not his own daughter, but still further had received her back into his home, after she had run away from her husband, although he would have put her in a monastery after he overtook her at castelnuovo during the flight." and alessandro baldeschi (page 623): "the said guido in the presence of myself, as well as that of biagio, francesco, and domenico, told me that he ought to kill the lady, that is, his wife, who was here in rome, to recover his own honour; and also to kill the father and mother of the said wife because they had lent her a hand in the insult she had offered to his honour." and page 645: "he told us also, in the presence of the keeper of the vineyard, that he was obliged to kill his wife, his father-in-law, and his mother-in-law, because the latter had lent a hand to their daughter in her ill-doing, and had acted the ruffians too, and because the said guido also declared that these same people, whom he had to kill, had wished to have himself, that is guido, killed." nor can the plea of injured honour be excluded by the attestations of those who afforded assistance to francesca pompilia even up to the time of her death: for they attest that she made declaration that she had never violated her conjugal faith. these assertions are merely testimony given outside of a trial, and do not demand belief. [citations.] and more especially as they were extorted and begged (while the suit was pending and the other side was not summoned), by the heir of the same francesca pompilia, for avoiding the prosecution by the monastery of the convertites, which was laying claim to the succession to her property on account of her dishonesty. such shame would cause all of her hereditary property to be sequestered and judicially assigned to the said monastery by law. [citations.] and this objection to their testimony is especially true because some of the witnesses who swear as above are beneficiaries of the same francesca pompilia, so that they might be swearing for their own advantage. for if her dishonour were substantiated, her property would devolve upon the said monastery, and consequently they would be shut out of their legacies. [citations.] and however far these attestations may occasion belief, a declaration of this kind serves to no purpose, because no one is presumed to be willing to reveal his own baseness. [citations.] so likewise francesca pompilia should not be believed, especially when testifying outside of a court and without oath. [citations.] much less are the aforesaid witnesses to be believed, lest more credence be given to hearsay evidence than to its original. [citations.] nor can it be said that no one is presumed to be unmindful of his eternal safety; for all are not presumed to be saint john the baptist. [citation.] especially when the argument is concerning the prejudice of the third. [citation.] and still more so when the argument is for punishing more gravely the enemy of the declarant. [citations.] and therefore, as the plea of injured honour is substantiated, it makes no further difference that the said murders were committed after an interval, according to what we have very fully affirmed in our last argument, ⧠_nec verum est_, even down to ⧠_prã¦dictis nullatenus_. there it was shown that this is the general opinion of authorities, and in accordance therewith judgment has been given from time to time not only in the sacred courts, but also in all the other tribunals of the world, as matthã¦us well observes, etc. [citation.] nor can there be any departure from this opinion in the present case on the ground that count guido did not kill his wife in the act of seizing her in her flight with her lover, but was indeed content to carry her before the judge as an adulteress. for it would not have been safe for him to kill her then; because he was alone and she was in company of the said lover, a daring young fellow, strong, and well armed, and accustomed to sinning. and what is more, this lover was prompt and well prepared to make resistance, lest his beloved amarillis should be snatched from him. likewise she was prompt and ready to hinder her husband even with a sword she had seized and drawn, lest her beloved mirtillo might be offended. guido should not therefore be considered to have spared her nor to have remitted his injury. but lest she might escape into more distant parts where he could have no hope of the due vengeance, his just and sudden anger then counselled him to have her arrested by officers, so that he might kill her as soon as possible; and when afterward a suitable occasion arose, if he killed her, it should be considered as if he had slain her immediately. [citations.] and, generally, whatever is done after an interval may be said to be done incontinently, if done as soon as a chance for doing it was given. [citations.] but so far is the law from believing that this kind of injury is remitted by a husband that it rather believes that the spirit of vengeance always continues in him. therefore it comes about that a wife may be held responsible for looking out for herself; so much so, indeed, that her death which follows thereupon may never be said to be treacherous. [citations.] muta speaks of the case of a husband who had his wife summoned outside of the city walls by his son, in order that he might kill her safely, and yet the husband was condemned only to the oars for seven years. this also makes some difference in the case, that certain authorities hold that a husband may indeed hide his wife's baseness for the purpose of taking vengeance upon her safely later on. [citations.] likewise he may have his wife hide his disgrace for the purpose of taking vengeance securely upon the one who wishes to offend her modesty, according to the very famous council of _castro_ 277, _lib._ 2. and this is all the more to the point because count guido was censured by the procurator of the poor himself, the defender of francesca and canon caponsacchi, for this appeal to the judge. [citations.] we have alleged many of these authorities in our past argument, ⧠_et hã¦c nostra_: for they unanimously assert that husbands are considered vile and horned, if they do not take vengeance with their own hands, but wait for that to be done by the judges, who themselves ridicule and laugh at them. therefore it is no wonder if the luckless husband, after he had made the said recourse to the judge, as the foolish heat of his wrath suggested to him, wished to avenge himself for his lost honour. for he sinned that he might shun the censure of the vulgar and learned alike, and that he might not add this infamy also to his lost honour. nor is it at all to the point that the said count guido, in his confession in one place, beside speaking of his injured honour, also mentions the plots aimed at his life; because the force of honour was far the stronger in his mind, as he himself asserts (page 678): "in consideration of the fact that they had taken away my honour, which is the principal thing." nor ought any consideration be given the other cause; because, as it is so much weaker, it should be made to give way to the aforesaid reason, as was proved in our former argument, ⧠_et in omnem casum_, where for another purpose we have adduced matthã¦us [citation], who is speaking in these very terms. and so far as we desire to give attention to this other cause, it likewise is sufficient for escaping the ordinary penalty. [citations.] the fisc acknowledges the relevance of the abovesaid matters; he therefore has recourse to the circumstances attending the crime, namely, the assembling of armed men, the lawsuit going on between count guido and the comparini, the prohibited arms, and finally the place where the crime was committed. for francesca pompilia was detained in the home where she was killed, as a prison. but a response is easy because such circumstances can indeed somewhat increase the penalty of the principal in the crime, but not so much as to raise it to the highest degree, in such a way that count guido and his associates should come to be punished with death. for we find it decided in these circumstances as quoted by muta [citation]: "a decision was therefore made in view of the case in general, march, 1617, before his excellency, wherefrom the ill manner of killing her was evident; for he had her summoned by her son, and afterward her body was discovered, which the dogs had eaten outside of the walls. leonardus was therefore condemned to the royal galleys for seven years." and sanfelici [citation] says: "and although some of them were condemned to banishment, it was because of their mutilation of the privates, a crime for which the fisc claimed they ought to be punished by the penalty of the _lex cornelia de sicariis_." and matthã¦us [citation] says: "when the matter had been more carefully considered in the council, it was decided that the husband had proceeded too treacherously in pretending absence, in taking his brother with him, and in killing with prohibited arms; because merely by the use of firearms a crime is rendered insidious with us, etc. and it was accordingly decided that, because of this excess, he should be condemned to the penalty of exile for four years and to the payment of 2000 ducats." and this at the stage of appeal was confirmed [citation] where we read: "and thus it was decided in the face of the facts proposed in condemning francesco palomi to the penalty of the galleys for ten years, etc., from the aggravating qualification of firearms. to the same penalty, antonio alvarez was condemned, who had deliberately killed his wife because she was playing him false, etc. the penalty was increased because he was judged to have omitted this earlier, since he did not complain of mere adultery, but of her living as a strumpet. and she could not do this without the indifference and connivance of the husband." and our reasoning is manifest, because it cannot be denied that count guido and his associates committed all the aforesaid crimes on the same ground of injured honour. because just as this excuse should be considered sufficient for escaping the ordinary penalty for murder, so likewise it should be considered sufficient for avoiding the other punishments whatsoever, appointed in the apostolic constitutions against those committing other crimes expressed in the same; as the principal purpose of the delinquent is always to be attended. [citation.] so it was declared on this point for the purpose of avoiding the penalty inflicted in the 75th constitution of sixtus v. [citation], against those who assembled armed men, whenever these men were evidently assembled for the purpose of committing some other crime, such as breaking prison and freeing those detained therein. and three very celebrated judges of the sacred court, namely coccini, blanchetti, and orani so decided. their decision is included among others gathered by farinacci [citation], and he testifies that it was so decided in the full chamber, in which the case was proposed and examined at the order of clement viii. of sacred memory. nor does what he wrote later on to the contrary in aid of the fisc, of which he was then advocate, stand in refutation; spada. [citation.] for this opinion of his was refuted clearly and rejected on the most substantial of reasons and arguments, [citations.] and in such conditions, for the purpose of avoiding the penalty of the banns or apostolic constitutions prohibiting the carrying of arms, i have alleged many authorities in my past argument, ⧠_neque plures_ [neque vero], and above the rest, policardus, etc. [citation], who fully examines the matter. my honourable procurator of the poor gathers together others in his present argument, ⧠_remanet tandem_. to these i add, caballus [citations], where it says that preparatory acts are to be included with what was prepared, and he testifies that it was so decided by the sacred council of naples. likewise, for the purpose of avoiding the penalty set for those killing one detained in prison, and so remaining in the custody of the prince, i have cited many authorities in my past argument, ⧠_similiter nec aggravari_. to these i now add. [citations.] nor does it make any difference that policardus, in the place cited, and some of the other authorities recently alleged speak of homicide committed in a quarrel or for self-defence. for the attendant circumstance of a quarrel relieves one committing crime from the ordinary penalty of the crime only in so far as it overlooks the crime in one who, when provoked, wished to be avenged (as ulpian says), and insomuch as one swept away by a just indignation is not in the fullness of his intellect. [citation.] but both of these reasons without doubt stand in favour of the husband or of any one else committing murder for honour's sake [citation], even if they do so after an interval. [citations.] and in these very conditions, one killing an adulterous wife after an interval is excused because of just anger, which causes him not to be in the fullness of his intellect, etc. [citations.] ulpian [citation] also says: "he ought to be angered with a wife who has violated his marriage with her, and his wrath should spring from indignation for contumely when received, and his nature should arise so that he would drive her from himself in whatever manner he could." "for it is more difficult to restrain one's anger than to perform miracles," as st. gregory says. [citation.] the other authorities, indeed, who speak of persons committing murder in self-defence with prohibited arms or in prisons should likewise be in our favour. for the defence of honour in the case of men of good birth, especially of nobles, is to be likened to the defence of life itself. [citations.] and indeed it surpasses life, according to the words of the apostle in his first letter to the corinthians, chapter 9: "better were it for me to die than that any one should deprive me of my glory." and st. ambrose: "for who does not consider an injury to the body, or the loss of patrimony, less than injury to the spirit or the loss of reputation?" and the third philippic of cicero: "we are born to honour and liberty; either let us keep them, or die with honour." [citations.] so that he who spurns his own honour, and does not see to regaining it by vengeance, differs naught from the beasts. [citations.] indeed he should be considered even more irrational than the very beasts, according to the golden words of theodoric. as quoted by cassiodorus, which we have cited in our past argument, ⧠_nec verum est_. [citations.] then as to the lawsuit going on between count guido and the comparini as regards the fraud about the birth, beside what was said recently, i pray that it again be noticed that the constitution of alexander does not enter where some provocation has arisen from the one injured, as farinacci well affirms [citation] in following a decision of the rota, which he places at the end of his counsel. and we have weighed this heretofore in our past argument, ⧠_absque eo quod_. such provocation in the present case resulted from the injury which the said comparini inflicted upon this same count guido while the lawsuit was pending, because of their complicity in the said flight and adultery committed by their daughter on that occasion. the other lawsuit which francesca pompilia made pretence of bringing against count guido, for divorce, might be omitted. for beside the considerations offered by my honoured procurator of the poor in his present argument, ⧠_qu㦠etiam aptantur_, this suit was brought illegally, because the warning of it, as i suppose, had reached only abate paolo, the brother of count guido, who had no authority in this matter. and this is true especially because it is not proved that the same guido had any knowledge of that suit brought, as is now pretended. as to blasio agostinelli enough has been written in the former argument, since he has not been examined anew, and in his former examination he confessed only that he was present at the said murders, but that he had no hand in them. so the more rigorous opinion of caballus cannot apply to him, who said that such helpers are not immune from the penalty of murder whenever they kill any one with their own hands. for the opinion of this author was proved by us to be erroneous, in our past argument, ⧠_quidquid in contrarium_. i might wish to add something to what has been said in the past argument as to the alienage and minority of domenico and francesco; but it is not yet very clear under what law the fisc pretends that they miss these. therefore i will rest satisfied with this response, believing certainly that it will not chance that my lord advocate of the fisc may fashion his own allegations and also respond to ours without communicating them to me, as happened in the past argument very greatly to the astonishment of myself and of others. for he and i both ought to seek the truth and to be advocates of that, as both of us are officers of the prince according to the considerations of rainaldi. [citation.] who indeed desires that anything else than justice be administered, and especially when dealing with poor imprisoned wretches? in their cause, piety should triumph, because they are the treasure of christ. [citation.] desiderio spreti, _advocate of the poor_. an account of the facts and grounds of the franceschini case [pamphlet 10.] the property of pietro comparini did not amount to more than the sum of 10,000 or 12,000 scudi, subject to a reversionary interest, coupled likewise with the obligation to compound a good percentage of the income. he, therefore, had to live sparingly to avoid being reduced to a state of destitution, there being a bar against his use of the capital and of a part of the income. he was also too indulgent to his stomach and was given to laziness, and furthermore had taken a wife with a very small dowry. then lawsuits came upon him, the income of his bonds was reduced, and other misfortunes befell him, so that he was brought down to a state poor and miserable enough. so much so that he was several times arrested for debt and, after making a statement of his property, received from the papal palace secret alms each month. when he found himself in such straits, he decided to marry off francesca pompilia, his daughter, to some person who would undertake the burden of supporting him together with his wife, violante peruzzi, who was a very shrewd woman and of great loquacity. it was with her advice that he had undertaken the affair, and the marriage with count guido franceschini was considered suitable. for when the latter had conducted his new wife and her parents back to arezzo, his own country, he might be able to find some opportune remedy for their necessities, by the assistance in rome of abate paolo franceschini his brother, an active and diligent man; thereby putting in order the patrimony of pietro which had been sequestered and tied up by his creditors. therefore, when the dowry had been set at twenty-six bonds, with added hope of future succession to the rest of his property by virtue of the reversionary interest to which the wife was entitled, the bargain was accepted. this bargain was advantageous to pietro and his wife in freeing them from the straits in which they found themselves. and it was likewise advantageous to the franceschini, as the diligence of the abate, and some temporary expenditure by their house well attests. for they might well believe that they would gain in time the aforesaid property either entire, or little decreased. such from the beginning were the mutual purposes of that unhappy marriage. from this fact one may see how slight a pretext there is for saying that count guido, while making the arrangements, had tricked pietro and his wife by giving an inventory of property with an annual income of 1700 scudi, which income was later proved to be much less, because the primary end for which the marriage was concluded might very well have been obtained by showing a much smaller income. for it is known that when this inventory was shown by violante to pietro comparini, he said on seeing it: "ho, ho, it would have been enough for me if it had been only half as much." and indeed it would have been the greatest stupidity in pietro to have given his daughter a husband, upon the simple inventory of a foreigner and without finding out if this were true, so that the real impelling cause of the marriage had been the resources represented in the said inventory. not even on the mere grounds of propriety and civility may guido be reproved; because when the said inventory was produced by pietro in the trial, the abate paolo franceschini was very much surprised at it, so that he took his brother to task about it by letter, and guido replied that he had done it at the instigation of violante. for she desired the completion of the marriage, and, seeing pietro irresolute, she induced guido to give the abovesaid inventory, with some modifications, for the purpose of stimulating her husband thereto. the marriage was finally effected, and they all went back together to the city of arezzo. nor were the comparini mistreated there, as they tried to prove by the unauthoritative deposition of a servant, who had left the house in anger. one mere reading of this deposition is enough to assure one that she did this with a bad motive and at the instigation of others, as she herself has declared to various persons. this deposition shows sickeningly the distasteful prejudice with which it was conceived, and especially where she says that a little sucking lamb was made to serve as food for seven or eight persons throughout an entire week. and there are other matters alike unfit for belief. [the comparini] were indeed treated with all consideration and decorum, as monsignor the bishop and the governor of the city attest; and they are persons much better qualified to judge and much more worthy of belief than a malign and suborned servant. but you may also have the attestation of one who was serving in that household for thirteen months, during the time when the abovesaid pietro and violante were there, and he is able to tell many particulars of the good treatment which they received at the hands of the franceschini. it is quite true that disturbances of considerable importance arose in that household; but they were occasioned by the bitter tongue of pietro and the haughtiness of violante, his wife. for they laughed at all the proceedings of the franceschini, and thrusting themselves forward, with pretence of superiority, they brought upon the mother of the franceschini, and upon the rest of the family, bitter vexations, which were hidden at the time, to avoid violating the laws of hospitality. and notwithstanding all this, when pietro and his wife decided to return to rome, as soon as they expressed their wish, they were provided with money for the journey, and in rome with furniture to put in order the house they had left. as soon as pietro and violante arrived in rome, a judicial notice was dispatched at the instance of pietro, in which he declared that francesca pompilia was not really his daughter, and that therefore he was not bound to discharge his promise of dowry. to prove this fact, he brought the attestation of his wife violante. in substance, she declared that for the purpose of keeping her husband's creditors from their rights, by virtue of the reversionary interest, and also for the purpose of enjoying the income of the bonds, she had feigned that she was pregnant, and then, with the aid of a midwife, that she had brought forth a daughter. this was francesca pompilia, who had come of a most vile parentage. from this blameworthy act made public so suddenly throughout the entire court, there necessarily arose in the franceschini an intense hatred toward the authors of it. but they were able to restrain themselves from the due resentment in the hope that if francesca pompilia were not indeed the daughter of pietro and violante, as was supposed at the time of the espousal, the marriage might be annulled and they might thus purge themselves of such a blot on their reputation. witnesses of this feeling of theirs are found in the many authorities and experts who were requested by the franceschini to give thought to that point and to express their opinion of it. but as these did not agree, the franceschini were unwilling then to commit themselves to so doubtful an undertaking, in the prosecution of which they would necessarily be obliged to presuppose and confess that she was not the child of the comparini. but by such a confession they would be prejudiced in their interest in the dowry. and therefore they thought well then to pass the matter by that they might avoid exposing themselves to the danger both of losing the dowry and of being unable to nullify the marriage. nevertheless they opposed the notice, and obtained for francesca pompilia the continuance in quasi-possession of her daughtership and a decree for the transfer of the dowry bonds. but pietro appealed from the decree, and the case was continued in the _segnatura di giustizia_. this was followed by the copious distribution of pamphlets throughout rome, which had been printed by pietro to the very grave injury of the honour of the franceschini, not to say to their infamy. but the latter were able to restrain the just resentment of their irritated minds by cherishing the hope of making the court acknowledge (as did follow), no less the falsehood of their adversaries than their own truth. supported by this hope, they subsequently bore with all patience the many insults planned against them by various cliques, and the twists and turns for hindering the transfer of the dowry bonds, the comparini having trumped up various creditors, whether real or pretended. on account of this opposition, the franceschini were made to feel the inconvenience and expense of that transfer. nor have they had any benefit of the income; of which they have been able to obtain not even a two months' payment. to such a pitch had the affairs of the two parties come, when guido, waking up one morning, found that his wife was not in bed. as soon as he arose, he found that his jewel-box had been rifled and his wife had fled. nor was the suspicion lacking that she had given an opiate to guido and the entire household the preceding evening; and it was thought that this had happened at the suggestion of pietro and violante, as he had more than once heard threats of it. he travelled quickly along the way to rome, and after a headlong journey he overtook his fugitive wife, in company with canon caponsacchi of arezzo, at the inn of castelnuovo. and as he was alone and unarmed, and they were armed and resolute, he saw that he was unequal to avenging that excess. he therefore thought it well to have them arrested by applying to the authorities of the said place. the court had both of the fugitives captured by the police. they were consigned to the jurisdiction of monsignor the governor of rome, and were then conducted to the new prisons. the fisc, indeed, makes much out of the particular that franceschini should have avenged his insults in the act of overtaking them; but, as an adequate response, one should think of the impossibility of his carrying out his revenge because of their precaution in the matter of arms, for franceschini had heard along the way that the fugitives were travelling armed. in proof of this, also, when his wife saw her husband she had the hardihood to thrust at his life with bare sword. for this reason it was prudent moderation to check their flight then by arresting them. and this was all the more true because the adultery of his wife had not then been proved, and possibly he had a repugnance against imbuing his hands with the blood of her whom he had often held in his arms, as long as any hope was left alive of regaining his reputation in any other way than by her murder. but afterward there were found the mutual love-letters of the same fugitives, barefaced and immodest and preparatory to flight. and from the cross-examination of the driver it became evident that during their journey in the carriage they had done nothing else than kiss each other impurely. and from the deposition of the host at castelnuovo, guido found out that both of them had slept in the same chamber. finally, from the sentence or decree of the court in condemnation of the canon caponsacchi to banishment to civita vecchia for three years, for "having carnally known francesca," the notoriety and publicity of this adultery followed. let any one who has the sense of honour consider in what straits and perturbations of mind poor guido found himself, since even the very reasonless animals detest and abominate the contamination of their conjugal tie, with all the ferocity that natural instinct can suggest. they not only avenge the immodesty of their companions by the death of the adulterer, but they also avenge the outrages and injuries done to the reputation of their masters. for elian in his natural history tells of an elephant which avenged adultery for its master by the death of the wife and the adulterer found together in the act of adultery. and there are other examples also, as tiraquelli cites. [citation.] but returning to the series of events, it must be stated that, after the imprisonment of the fugitives, guido also came on to rome and was deeply affected and, as it were, delirious because of the excesses of his wife. he was comforted by his good friends with the hope that this attempt at flight, taken along with the lack of decent parentage of francesca (under supposition of which he had contracted the marriage) would facilitate the dissolution of that marriage, and in that way all the blots upon his reputation would be cancelled. hence, with this hope he returned to his own country, leaving the management of the affair to the abate, his brother. the secretary of sacred assembly of the council may be a witness of this; for abate paolo presented the matter to him and entreated him to propose, in that sacred assembly, this point of law as to the validity of the marriage then--that is, after a criminal sentence in the tribunal of monsignor the governor, had been obtained. in the meanwhile the same abate attended to the plan of petitioning the conclusion of the said criminal cause. when pompilia, to avoid conviction by the love-letters, had recourse to the falsehood that she did not know how to write, it was easy for the abate to convict her of that lie by showing the marriage agreement signed with her own hand, as well as by a cardinal now dead, by means of the recognition of the handwriting. but in spite of this, when the merits of the case had been made known everywhere, the same abate perceived that instead of his being pitied, little by little every one began to laugh at him and to deride him, as he has told several persons. perchance the attempt was being made to introduce into rome the power of sinning against the laws of god with impunity, along with the doctrine of molinos and philosophic sin, which has been checked by the authority of the holy office. so many persons would desire to blot out from the minds of men their esteem of honour and of reputation in order that they might sin with impunity against the laws of men and might give opportunity to adulterers without any check from disgrace or shame. and it is certain that the abate, seeing the cause unduly protracted, had just grounds for placing it at the feet of our lord [the pope], with a memorial in which he declared that he could no longer endure such important and such various litigation and vexation arising from that luckless marriage, and he prayed that a special sitting be appointed for all the cases--that is the ones concerning her daughtership, her flight, her adultery, the dowry, and others growing out of the marriage as well as the one concerning its annulling. but he had no other reply than: "the matter rests with the judges." so, with devout resignation to his holiness, he awaited the outcome of the said criminal trial, from which he hoped to regain, at least in part, the reputation of his house. in the meantime, pietro comparini was supplied with plenty of money by the generosity of some unknown person, possibly a lover of the young girl. he vaunted his triumph boldly in the throngs and the shops, places of his accustomed resort, and he praised the resolution and spirit of his daughter for having known how to trick the franceschini with a disgraceful flight and with the thievery of such precious things, and for having found an expedient to give to the judge in the trial such good replies with all details thereof. he also boasted that in a little while she would return to his home despite the franceschini. for he would bring so many lawsuits and scandals upon them that they would be forced to be silent and to let matters run on. for these statements we can have the attestations of many persons, in case they are needed. therefore, because of such stinging boasts and such irritations, the mind of guido was ever more embittered in spite of all the power he could master for restraining the impetus of his anger which had been provoked by such injuries. francesca pompilia had been previously transferred from the prisons into the refuge called _della scalette_, where she stayed for some months. then it was discovered that she was pregnant, and many attempts were made to secure an abortion. for this purpose, powders and other drugs were given several times by the mother. as this proved useless, she was remanded to the home of pietro and violante on the pretext of an obstruction and the necessity of relieving herself. there, at the approach of the physicians, her pregnancy was discovered. the truth is, that when her womb began to grow, the nuns did not wish for her confinement to take place within their walls, and therefore a pretext was found for removing her on the grounds of the said obstruction and the necessity of removing it. now at this point the abate found it necessary to break the bonds of his forbearance: for although it was indirectly that he was offended, that is, in the person and honour of his brother, nevertheless it seemed to him that every man's face had become a looking-glass, in which was mirrored the image of the ridicule of his house. therefore, being humiliated, though he was strong and constant in other matters, he often burst into bitterest tears, until he felt very much inclined to throw himself into the river, as he indeed declared to all his friends. and to free himself from such imminent danger, he decided to abandon rome, the court, his hopes and possessions, his affectionate and powerful patrons, and whatever property he had accumulated during thirty years in the same city. any one may imagine with what pain he parted from these and went to a strange and unknown clime, where he would not meet the fierceness of his scorners, who had been merited neither by himself nor his household. but the injury of guido, arising from a sharper and severer wound, within his very vitals as a husband, had the power to arouse his anger even to the extreme. nor did he consider it sufficient redress to punish himself with voluntary exile for the crimes of others; for such a resolution might be considered by the world as a plain proof of his weakness and cowardice. he soon had sure information that, during the month of december, pompilia had given birth to a boy in the home of the comparini, which child had been intrusted secretly to a nurse. he also heard that the infamy of the friendship with the said canon had been continued, inasmuch as he was received as a guest into the said home (as was said). for like a vulture, caponsacchi wheeled round and round those walls, that he might put beak and talons into the desired flesh for the increase of guido's disgrace. guido accordingly felt the wildest commotion in his blood, which urged him to find refuge for himself even in the most desperate of determinations. in the meantime he turned over again and again, as in delirium, his sinister thoughts, reflecting that he was abhorred by his friends, avoided by his relatives, and pointed at with the finger of scorn by every one in his own country. and the word went abroad that in rome they were selling his reputation at an infamous market. (this matter has moved the treasurer of the convertites, since the death of pompilia, to begin proceedings and to take possession of her property.) added to the above were the continual rebukes which he received because of his lost honour, so that he became utterly drunk with fury. he left arezzo with desperate thoughts, and when he had reached rome he went to that home which was the asylum of his disgraces. nor could he have any doubt how much the very name of the adulterer was respected; for when guido made pretence of delivering a letter of his sending, the doors were immediately thrown open; and so, scarcely had he set his foot upon the threshold, before he saw his dishonour proving itself before his very face; of which dishonour he had heretofore had only a distant impression in his imagination. then bold and triumphant, he no longer feared to upbraid her with unmasked face for all the insults which had been inflicted upon his honour in that household; and as he looked all around at those walls incrusted with his heaviest insults, and with his infamy, the dams of his reason gave way and he fell headlong into that miserable ruin of plunging himself with deadly catastrophe into the blood of the oppressors of his reputation. there is no doubt that franceschini has committed the crime of a desperate man, and that his mind, when it was so furious, was totally destitute of reason. as he had lost his property, his wife, and his honour, there was nothing else for him to lose unless it were his miserable life. for, as paolo zacchia, the learned philosopher and jurist, says in speaking of anger in man: "such and so great is its force that it does not differ at all from insanity and fury." galenus very clearly affirms this, adding that when in law it is known that crimes are committed in such a state, they are punished with a smaller penalty, even though it has to do with the very atrocious crime of parricide. calder [citation] also gives many other matters on our point in no. 27 and the following numbers. and these theoretic propositions are verified in actual practice in guido; for he was so utterly mad and void of reason that he entered upon so great an undertaking even at an hour of the night when many people were around. and after that he took no precaution, such as any other person of sound mind would have taken in governing his actions. he set out by the high road on his journey of about seventy miles from the outskirts of the city without providing any vehicles, as if he were merely a traveller leaving rome. these circumstances are plain evidences of an offended and delirious mind. [citations.] st. jerome writes in his letters: "where honour is absent, there is contempt; and where contempt is, there is recurring insult; and where insult, there indignation; and where indignation, there is no quiet; and where quiet is wanting, there the mind is often thrown from its balance." nor in this case does the legal distinction enter as to whether the one driven by anger committed the crime in the first impulse of anger, or after an interval of time. for this distinction might have a place when the anger arose from an insult in some transitory deed, and one that was not permanent. but in the case we are treating, the insult provocative of anger consisted of frequent and reiterated acts; that is, not so much in the passing of the wife from the nunnery to the home of pietro under an empty and ridiculous pretence, but still more from her staying in the said home with the aggravating circumstance of his own infamy (as has been said above). accordingly, as the injury is permanent because of the continual affronts which the injured one received, so the vengeance is understood to be taken immediately and without any interval. this the defenders of the cause have sufficiently proved in their no less erudite than learned writings with their very strong arguments and their unsurpassable learning. nor does it amount to anything for one to say that the crime was aggravated, first, by the kind of arms used; for virgil [a. i. 150] says: _furor arma ministrat_; nor, secondly, by the company of four, or let us say the conventicle; nor, thirdly, by the place, the excess, or the other circumstances considered by the fisc. for in a madman, everything is excusable, as it is axiomatic and a very sure principle that nature then arises in such a way that it drives a man from himself, in whatever manner is possible, etc. in conformity therewith, fracosto speaks as follows: "and in truth an ingenuous mind, and one that knows the value of its own honour and reputation, is very painfully offended in a part so sensitive and so delicate; and at such a time reaches the limit of madness and of desperation; for it has lost the light of reason, and in delirium and frenzy cannot be satisfied even if it succeed in turning upside down, if that were possible, the very hinges of the universe, for the purpose of annihilating not merely the authors but the places and the memory of its insults and shames." for "the rage and fury of a man does not spare in the day of vengeance, nor does it grant the prayers of any, nor does it accept in requital many gifts," as the holy spirit speaks on this point, through the mouth of solomon, in the sixth chapter of proverbs, at the end. with this very well agrees what st. bernard has very learnedly written in his letter to his nephew robert at the beginning: "anger indeed does not deliberate very much, nor has it a sense of shame, nor does it follow reason, nor fear the loss of dignity, nor obey the law, nor acquiesce in its judgment, and ignores all method and order." there is no doubt that samson reached this pitch when he fell into the power of his enemies. he suffered with an intrepid mind the loss of his eyes and other grievous disasters, but when he saw that he was destined to serve as a pastime in public places, and when he there heard the jeers and derision of the people, the anger in his breast was inflamed, so that, all madness and fury, he cried out: "let me die along with the philistines." and giving a shake to the columns which sustained the palace he reduced it to ruin: "and he killed many more in his death than he had killed while alive," as the holy scripture testifies. and christ himself, although he was very mild, and had the greatest patience while receiving opprobrium and insults without ever complaining, yet answered, when he knew that his honour was touched, "my honour i will give to no one." and it is certain that any one who cares for honour and reputation would rather die an honoured man beneath _mannaia_ than live for many ages in the face of the world with shame and dishonour. this argument, strong as it is, has succeeded in weakening one wise and earnest adherent of the fisc. and this is why the very learned pen of monsignor of the fisc has uttered the following period, which says: "but because the comparini claimed that the furnishing of food to francesca while in prison was the duty of franceschini, and the latter declared that it belonged to the comparini, the most illustrious and reverend lord governor, after having the consent of abate paolo, own brother of guido, and his representative in the case, assigned the home of the same comparini to francesca as a safe and secure prison under security." but this fact can be clearly explained so that it will not form an objection. when francesca pompilia was about to be taken from the prison to the nunnery, abate franceschini was asked to provide the food, with the statement that if he refused there would appear a third and unknown person who would assume the burden of it to their dishonour. therefore the abate wished once for all to put an end to any chance of receiving new insults; and to avoid every charge of preserving even the slightest sign of relation with this disgraceful sister-in-law, accepted a middle way proposed to him, namely, that lamparelli, as procurator of charity, should make provision for it by the disbursement of his own funds and should pay it back again by what reasonably belonged to the franceschini; for he reimbursed himself for it with the money which had been found upon the fugitives, and which had been stolen from the husband; at her capture, this money was placed on deposit in the office, where there remained so much of it still that, after all was over, the balance of it was consigned to the same abate. and as when the said francesca was transferred from the nunnery to the home of violante, all the preceding and succeeding circumstances made it very improbable that the abate gave his consent, and as this consent is not found registered among those acts, it seems very clear that it was not given at all. nor could he legally give it, for he was not the representative of his brother in that matter; for his authorisation confined him solely to the power of receiving back the money and other things which were deposited in the office. this is proved by his acts and by the story which the abate then gave to his friends and relatives; and it utterly destroys the assertion of the fisc, since abate paolo says that he was indeed notified that the young woman was obliged to find relief in an indisposition, certified by a physician, and that she was obliged to leave the nunnery and to go back to her father's home. to this, as it seemed a mere pretence, he replied that he could easily undertake to purge the wife in the nunnery without exposing her to such evident danger of greater shame. he also said that he wondered very much that the affection of a father had so suddenly returned in pietro comparini for pompilia, whom he and his wife had so often denied as their daughter. he wondered how they could both be, and not be, the parents of the said woman, according to their own desires to the injury of the house of franceschini. and if the solicitor, for the purpose of giving colour to the honour of the said lady, has falsely urged many justifications, it is to be noted that in substance all that he says on that point is founded on what with her own mouth she has said in her own favour and what she has proffered to free herself from the blame of her sins, both at this juncture and in the flight, as well as in the trial which may be referred to; in fact, quite the contrary is evident; and from the external tests which the convertites intended to make, but from which they abstained when they heard the news of the birth of the son. and would that it had pleased god that she had observed the laws of holy modesty! for in that case so great a misfortune would not have resulted from her whims. we should notice, further, that the declaration made by the wife in the face of death may be doubtful in itself, in the sense that after confession and absolution one's sin is cancelled as if it had never been committed, so that in a court of justice she would no longer have any need of pardon. therefore, from the above-cited circumstances and very strong reasons, there is no room to doubt that franceschini deserves the indulgence which the laws give to excesses that find origin from the stings of honour. and, if we were within the circumstances under which the case ought to be adjudged according to expediency, without any hesitation, franceschini should be punished mildly to diminish the force of immodesty and impudence. for the woman is not without adherents, who triumph throughout all rome in a coterie of treachery, both in public and in private. this is for the oppression and derision against husbands who have regard for their reputation. and they give the title of pedantry to that circumspection which one ought to practise for the preservation of his own honour. [file-title of pamphlet 11.] _by the most illustrious and most reverend lord governor of the city in criminal cases:_ _roman murder-case with qualifying circumstance._ _for the fisc, against count guido franceschini and his associates._ _summary._ _at rome, in the type of the reverend apostolic chamber, 1698._ summary [pamphlet 11.] no. 1.--_bond given by francesca pompilia to keep her home as a prison._ october 12, 1697. before me, etc., francesca pompilia, wife of guido franceschini of arezzo, was placed at liberty, etc., and promised, etc., to keep to this home of pietro (son of the former francesco comparini), etc., situated in via paolina, as a safe and secure prison, and not to leave it, either by day or by night, nor to show herself at the doors or open windows, under any pretext whatsoever, etc., with the thought of having to return again to prison, etc. and after she has recovered her health to present herself at any time whatsoever, etc., at every command of the most illustrious and most reverend lord governor of the city; for the cause concerning which there was argument in the trial, etc., from proofs that may arise, whether new or not new; under the penalty of 300 scudi, laid by the reverend apostolic chamber in the case, etc. this is followed by the surety in due form, notary for the poor. no. 2.--_certificate of the baptism of francesca pompilia._ i, the undersigned, certify, etc., as is found in the baptismal record, page 152, the particulars given below, namely: july 23, 1680. i, bartolomeo mini, curate, have baptised the infant daughter born on the 17th of this month to pietro comparini and violante peruzzi, who live in this parish. to her the following name was given: francesca camilla vittoria angela pompilia, etc. in pledge of which, etc. rome this 9th day of february, 1698. thus it is, pietro ottoboni, curate of san lorenzo in lucina. no. 3.--_letter of francesca, pompilia, written in the prison of castelnuovo to her parents._ my dear father and mother: i wish to inform you that i am imprisoned here in castelnuovo for having fled from home with a gentleman with whom you are not acquainted. but he is a relative of the guillichini, who was at rome, and who was to have accompanied me to rome. as guillichini was sick, and could not come with me, the other gentleman came, and i came with him for this reason, because my life was not worth an hour's purchase. for guido my husband wished to kill me, because he had certain suspicions, which were not true, and on account of these he wished to murder me. i sent you word of them on purpose, but you did not believe the letters sent you were in my own hand. but i declare that i finished learning how to write in arezzo. let me tell you that the one who carries this was moved by pity and provided me with the paper and what i needed. so as soon as you have read this letter of mine come here to castelnuovo to give me some aid, because my husband is doing all he can against me. therefore if you wish your daughter well, come quickly. i stop because i have no more time. may 3. directed to signor pietro comparini, my father, via vittoria, rome. no. 4.--_another letter of the same person, in which she calls the canon to task for dishonourable advances._ i give you infinite thanks for the octaves which you have sent me. all of these are the very contrary of the rosalinda, which was as honourable as these are immodest. and i am surprised that you who are so chaste have composed and copied matters so immodest. i do not want you to do in everything as you have done in these books, the first of which was so very nice; while these octaves are quite the contrary. i cannot believe that you, who were so modest, would become so bold, etc. no. 5.--_portions of the will of pietro comparini._ as to each and all of my properties, etc., i appoint, as my usufructuary heir, my wife signora violante peruzzi, etc. and when she dies i appoint in her stead, in the said usufruct of my entire estate, francesca pompilia, wife of signor guido franceschini of arezzo. and i do so because of her good character and because for a long time, yes, for many years, i looked upon her in good faith as my daughter, and thought that signora violante, my wife and myself were her parents. then i found out that both she and i were tricked in that belief, thanks to the vanity of the schemes, unfortunately conceived by my said wife, to make me believe in the birth of the same daughter. and because of a scruple of conscience after the marriage of francesca pompilia, this fact was revealed to me by signora violante my wife. and this pretence of birth was found by me to be a fact because of the information of it from persons worthy of credit. all this i grant, therefore, on the condition that the said francesca pompilia seek again her own city and stay here in rome, etc., in which city i hope she will live chastely and honestly, and will lead the life of a good christian. but if she do not come back to this city, or if when she has come back she live with shameless impurity (and may god forbid that), i wish that she be deprived of the said usufruct of my estate and that opportunity be given for a substitution in favour of the heir mentioned below, as proprietor, etc. because thus, etc., and not otherwise, etc. and because the chance might arise that she be left a widow, or that her marriage be dissolved, since a lawsuit is going on, which was brought before monsignor tomati by the olivieri as to her relation as child, and if the said francesca wish to marry again, or become a nun, i am willing that she separate from my estate as much as 1000 scudi for the purpose of remarrying or becoming a nun, if she shall so please. and i advise her not to marry again, lest she subject herself a second time to other deceptions. still further, i give her the power to leave by will 200 scudi more of my estate. and in the event that signor guido die first, whereby there would come about the restitution to the said francesca pompilia, etc., of the money received by signor guido, to the sum of about 700 scudi, etc. (which i think would be at least very difficult, if not impossible, because signor guido is wretchedly poor and his family is very poor), i wish that these moneys be not counted against the said francesca pompilia in said 1000 scudi, much less in her power of making a will, because then, etc. no. 6.--_authorisation for the management of his affairs made by guido franceschini to the person of abate paolo, his brother._ _october 7, 1694._ guido, son of the former tomaso di franceschini of arezzo, of his own will, etc., made and appointed, etc., to be his true, etc., representative, etc., special and general, etc., abate paolo franceschini, his own brother, now living in rome, etc., for the purpose of carrying on and defending, in the name of the said constituent, all lawsuits and causes, civil or mixed, already brought or to be brought for any reason whatsoever, and against any persons whatsoever, anywhere, and especially in rome, whether as plaintiff or defendant before any judge, either ecclesiastical or secular, whether before the congregation or tribunal, and before one or both, to give or receive charges, or to contest lawsuits, to take oath as regards the calumny, and to furnish whatever other testimony is lawful, etc., and to carry on and obtain each and all other necessary matters, in the same manner and form as the constituent could, if he were present, and as seems well pleasing to the said procurator, etc., promising, etc., and demanding, etc. i, joseph, etc., de ricii, notary public, etc., of arezzo was asked, etc., in pledge whereto, etc. [file-title of pamphlet 12.] _by the most illustrious and most reverend lord governor of the city in criminal cases:_ _for the fisc, against count guido franceschini and his associates, prisoners._ _response of the procurator general of the fisc._ _at rome, in the type of the reverend apostolic chamber, 1698._ romana excidii [pamphlet 12.] most illustrious and most reverend lord: why should we waste time in disputing the point whether adultery committed by francesca comparini with canon caponsacchi, as is claimed by the other side, is sufficiently proved? for in our first information [pamphlet 5] as to the law and fact in the case, we have already declared that judgment was given in the _congregation_ only for the penalty of banishment to civita vecchia against the abovesaid canon, and of retention in the nunnery against francesca, because of the very lack of proof of the said adultery. and this is quite right in law, because neither the canon himself nor the said francesca have confessed, much less been convicted of it; and because the suppositions brought on the other side are trivial and equivocal. but, even if these latter had been weighty and very urgent, they would not have been enough to establish conclusive proof, but at the most could only lead the mind of the judge to place some minor punishment upon them arbitrarily, as farinacci testifies. [citation.] therefore there should be strict insistence on behalf of the fisc upon the point that guido franceschini had not the right to kill, after an interval, his wife, whom he had not taken in adultery nor in base conduct, without incurring the ordinary penalty of the _lex cornelia de sicariis_. for in our former writings, ⧠_alii vero_, we have proved by the strength of many distinguished authorities that a husband who kills his wife after an interval is not excused from the said penalty. now that this fundamental assertion [in their argument] is overthrown, we declare that the rights of the fisc cannot at all be controverted in the case with which we are dealing, since the authorities alleged by the defence, who excuse a husband from the ordinary penalty, speak in the case of simple murder; and they ought not, accordingly, to be extended to a case made still graver by qualifying attendant circumstances. and for this reason, because the penalty cannot possibly be the same, when the crime is greater in the one case than in the other. [citations.] nor for the purpose of overthrowing this fundamental idea of the fisc can the objection be made that all the qualifying and attendant circumstances, which have been brought together in behalf of the fisc, should have no consideration, because they tend toward and are preordained for the end had in mind; for the end and intention of count guido was directed toward the murder of his wife and the vindication of his honour. but one can well understand how fallacious this argument really is, from what i have already written in ⧠_prima enim_ together with the one following, and ⧠_secunda qualitas_ and _si ergo_. there we have proved that the learned authorities who can be adduced by the other side speak and should be so understood when the end is licit and not prohibited by law, or else when some qualifying circumstance, through the force of particular constitutions or banns, does not establish some further capital crime, distinct and separate. and this is true whether the preordained end in the mind of the delinquent follow or do not follow. but in our case, from what has been conceded by the lawyers for the defence, the husband is not permitted by law to kill with impunity his wife, after an interval, for adultery. but he is permitted by law to slay the vile adulterer and his adulterous wife only when taken in adultery. how then can these authorities be applied to our case? for they hold good and find a place for themselves only in a case permitted by law. in these circumstances speaks laurentius matthã¦us [citation], who is cited by the other side, where in his setting forth a case we may read: "the adulterer and adulteress were slain in the home of the husband, although in that case the husband did not escape unpunished, because he had used firearms." nor does it hold good in law and practice that the bearing of arms is included along with the crime committed. not in law, as we have affirmed in our other argument ⧠_si ergo_; nor in practice, because in all the tribunals of the entire ecclesiastical state, it is held that even when murder in a rage has been committed, if it has been committed with the arms which are prohibited under the capital penalty, especially if these arms come into the possession of the court, a more severe penalty is inflicted. and murders which should suffer a lighter penalty because they were done in anger are condemned under the ordinary penalty because of the carrying of such arms. farinacci and guazzini testify that this has been the practice in the ecclesiastical state while this decree has held good. [citations.] still less applicable are the other authorities, who were adduced to escape the order of the constitution of alexander. for although it is true that for this crime the penalty threatened by the same decree does not enter, unless these three matters are concurrently present, namely craft, the occasion of a lawsuit, and the fact that no provocation has arisen (as farinacci holds [citation]), yet in our case, all of the abovesaid concur. as to the craft, there can be little doubt, since by the very confession of the defendants we have knowledge of the preceding discussion and deliberation for committing the murders. and decian and others affirm the charge of craft may arise from such a discussion. [citations.] the presence of a lawsuit is likewise undoubted; because, on the representation of pietro comparini, suit was not only brought before judge tomati as to the dowry promised and the goods subject to entail, for the exclusion of the said guido franceschini and francesca his wife, but also a sentence favourable to the said franceschini has been handed down by the same judge. but still further we may gather, from the confession of franceschini himself, that the provocation whereby he was moved to kill his wife arose because of the pretended adultery; on this point the counsel for the defence have principally insisted. nor can they deny that this same cause was introduced in the criminal prosecution in the presence of the judge by the same franceschini. it is quite necessary, then, to acknowledge that this ought to justify the application of the penalty of the alexandrian bull; for this decree speaks in civil as well as criminal cases, as is evident in the fourth paragraph of the same bull, where we read: "that successively in future times forever, each and all persons, ecclesiastical and secular, of whatever quality, dignity, state and grade of rank and prominence, in their own causes under benefit of clergy or secular, also in criminal and mixed cases, whether now before this court or pending for the time, their adversaries, or those following or helping them, or the advocates or counsel of them." and also in the place where we read: "if mutilation of limb, or death (which god avert) follow, they incur _ipso facto_ beside the loss of their right and case, the sentence for the outraged majesty of the law." we believe we have sufficiently canvassed these matters with galloping pen (there being but a brief three hours) to prove clearly that the foundations of the fisc affirmed in our former writings still stand fast, in spite of what has been recently deduced by the opposition so fully and so learnedly, but without legitimate proof. f. gambi, _procurator general of the fisc and of the reverend apostolic chamber_. [file-title of pamphlet 13.] _by the most illustrious and most reverend lord governor of the city in criminal cases_: _roman murder-case with qualifying circumstance_. _for the fisc, against count guido franceschini and his associates._ _a reply in matters of law, by the lord advocate of the fisc._ _at rome, in the type of the reverend apostolic chamber, 1698._ romana homicidiorum [pamphlet 13.] most illustrious and most reverend lord: in the beginning of his recent information, my lord advocate of the poor has criticised as unjust the decree of this supreme tribunal, which inflicted the torture of the vigil upon count guido franceschini and his associates, for the purpose of getting confession of that most horrible crime committed by them. hence he claims that those confessions, given under the fear of it and ratified after it was over (as is the custom), cannot do the accused any harm. he attempts, indeed, to deny the justice of the said decree, not merely because of the absence of the quality of special atrocity (as required by the decree of paul v. of sacred memory for the reformation of the tribunals of the city), but also from the fact that the death penalty cannot be demanded for the crime under discussion. and this he claims is so (in spite of the unusual powers for ordering the torture of the vigil granted to this tribunal) lest there may be greater harshness in the course of the trial than in the penalty itself. [citation.] in the end of this said recent information, he also criticises me because, to the very great wonder of himself and others, i have failed in my duty of seeking the truth in that i have made certain allegations in the defence of the rights of the fisc, which i have not communicated to him. i thought he had complained quite enough about that orally, so that he might have spared us his new complaint. but it was not my duty to tell them to him, just as his informations, which he made for the defence (very learned indeed in their way), have never been made known to me by him. but i assert only this, that i have paid the price of much labour, lest i may seem to have failed in my office and in the reverence with which i attend upon my lord. passing over, therefore, my own personal apology, i go on to vindicate the decree of this tribunal from the injustice charged against it. i also omit proof of the quality of the crime as to whether it may be considered very atrocious, for i have abundantly argued this point in my past response, ⧠_sed quatenus etiam_, with the one following. for i showed that this quality could be sustained because of the attendant circumstances which exasperated and raised the crime to the outraging of the majesty of the law, according to the provisions of the apostolic constitutions and the general banns. i think it is quite enough in my present argument to show that for this offence the death penalty should be demanded. i hope to accomplish this with little difficulty, since from the very kind of severe torture decreed, by judges of such integrity, the applicability of this said penalty is pre-supposed. and so since nothing new, whether in fact or in law, can be brought, which has not been already examined in relation to the cause for decreeing the torture, now that the confession of the accused has followed it, it is the duty of the judges to pronounce the execution of the well-deserved penalty, which has been long expected by every one. i have said that nothing new is brought by the defence, since their special attempt consists in repeating the plea of injured honour because of the pretended adultery committed by the wife of guido, with the help and conspiracy of her parents, who were barbarously slaughtered along with her. this plea is offered for the purpose of exciting the pity of my most illustrious lord, and the lords judges, in order that guido and his associates may be punished more mildly, according to the authorities adduced on that point in their first information, ⧠_hoc stante_, together with the one following, and ⧠_prã¦dictis nullatenus_, likewise with the one following; and in the present information, ⧠_verum et socios_. but the same response recurs, that for the accused this exception on the plea of pretended injury to honour can afford no refuge, because this plea has no foundation in fact and is irrelevant in law. for what difference does it make even if the mere strong suspicion of adultery is enough to excuse vengeance taken immediately by a husband against his wife or her lover? if she were found either in lustful acts, or in those preparatory thereto; then because of such a sudden grievance excited thereby, which provokes a man to anger, the penalty should very often be tempered according to the nature of the case and the persons. but it is quite certain that to escape the ordinary penalty of the _lex cornelia de sicariis_ for the murder of a wife committed after an interval, the mere suspicion of adultery, however strong, is not enough; but the clearest proof of it is required, either from the confession of the wife herself or from a condemnatory sentence following. [citations.] but such proof is entirely lacking in our case. for the luckless wife constantly denied the adultery even till the last breath of her life, as is evident from the sworn attestations of priests and others who gladly ministered to her after she had been wounded. for they unanimously assert that she always affirmed that she had never violated her conjugal faith. nor did she ask that such sin be forgiven her by the divine clemency; this assertion indeed should have much weight, since no one is presumed to die unmindful of his eternal safety. [citations.] nor are the responses given by the defence at all relevant; namely, that such proof in denial of the adultery is drawn entirely from testimony taken out of court, and extorted by the heir while a lawsuit was pending, to remove the annoyances brought by the monastery of the convertites, and that some of the undersigned were legatees. they also respond that since such an assertion as hers served to cover her own baseness, it should not be believed, especially as it was not sworn. and further, that although no one is presumed to be unmindful of his eternal safety, yet all are not supposed to be immune from sin, like saint john the baptist, which is especially true when the argument is about the prejudice of a third party and about the more severe punishment of an enemy of the one making declaration. now that all these claims are destroyed with so little trouble, the irregularity of the proof could stand in our way, if the fisc were obliged to assume proof and perfect it. but the burden of proof rests upon the accused, according to the authorities cited above for avoiding the death penalty, whenever a man kills his wife after an interval. the above attestations are brought merely to damage the proof of pretended adultery, offered by guido. in this case, certainly, such attestations are not to be spurned, especially when we consider the quality of the persons attesting, since they are priests of well-known probity, and it is incredible that they would be willing to lie. [citations.] the further objection that these attestations were extorted by the heir, while a lawsuit was pending, for the purpose of escaping the trouble brought upon him by the monastery of the convertites, is also removed by the same reply; because when one is arguing for the proof of an assertion given in the last days of life and in the very face of death, proof cannot be established, unless this hold good. and the heir is praiseworthy, because he is obliged to avenge the murder of the one slain, lest he be considered unworthy according to the text. [citation.] "heirs who are proved to let the murder of the testator go unavenged are compelled to give back the entire property," etc. he procured these attestations that he might guard the good fame of the testatrix; and this was rather because of his zeal for her good repute than to prevent the annoyances unjustly brought, and the quashing of these latter could be turned back for the exclusion of the pretended proof of the dishonesty of the unfortunate wife. still less can it stand in our way that some of the signers are legatees, since their interest is not large enough to prevent their giving testimony. [citations.] and this is especially true when one is arguing to prove a matter which happened within the walls of a home, and the proof of which, on that account, is considered difficult. [citations.] and such an exception to their testimony, so far as it has any foundation, is utterly removed by the number of the witnesses subscribed to the said attestations. [citations.] but [last of all], as to the objection that the assertion of one dying is not to be attended, when directed toward the exoneration of one's self, because no one is compelled to reveal his own baseness. this might indeed hold good if the adultery had been proved, and if it were not evident that, though wounded, she had died with strongest manifestation of christian penitence, which would exclude all suspicion of a lie. in this case such an objection does not hold good, but another very valid supposition takes its place, namely, that no one is believed to be willing to die unmindful of his eternal safety. [citations.] for mascardus [citation.] says that a confession given in the hour of death holds good, and he adds that this approaches nearer the truth, and cites in proof of it marsilius. [citation.] the latter affirms that if any one assert that a person making oath in the hour of death is lying, he says what is improbable. and mascardus concludes that this opinion is more just, and more in accord with reason and with natural law. and though he offers some limitations, none of these are applicable to our case; and the question about which he was arguing was concerning the assertion of one wounded, as to whether such assertion constituted proof against the one charged; and this differs by the whole heaven from our dispute, if we only note that the burden of proof does not rest with the fisc. nor does the assertion of pompilia when dying tend principally toward vengeance, since it is quite evident from those making attestations that she shrank with horror from that; as she always professed that she most freely pardoned her husband. these matters we have noted beforehand rather in super-abundance than because we were obliged to assert the justice of the decree of this tribunal. it will now be easy to escape the proof of pretended adultery, brought by the counsel for the defence. for so far as this proof is drawn from the other decree of this same tribunal, condemning canon caponsacchi for flight and carnal knowledge with francesca pompilia, the response which has already been given holds good: namely, that a title should be given no attention, but merely the proof resulting from the trial, and the penalty imposed by the sentence. and what if in that decree, along with the "title" of "complicity in the flight and escape of francesca pompilia," there was also added the title "for criminal knowledge of the same"? yet since in the trial itself no proof in verification of this was found, and since the penalty of three years' banishment does not correspond therewith, the mere title should not be given attention, according to the authorities adduced in my past response, ⧠_non relevante_. and on account of the following reason, still less can such clear proof of the pretended adultery be established as is required to escape the ordinary penalty for taking vengeance after an interval. for at the instance of the procurator of the poor a correction was decreed by the judges, with the approval of my most illustrious lord, which substituted a general title relative to that suit, namely _pro causa de qua in actis_; and although this correction is not to be read in the record (commonly called the _vachetta_) in which decisions are usually noted, yet it was made in the order for the dispatching of caponsacchi to his exile and in the decree assigning to pompilia the home as a prison. (summary, no. 1.) and since the latter was made with the consent of abate paolo franceschini, we may assert that the said change of title became known to him because of his notorious solicitude in conducting the case; and so it would be very improbable that he had not carefully examined such a decree and the obligation made by pietro to furnish her food, without hope of repayment, and the bond given for her to keep the home as a prison. for these reasons his knowledge of that change should be considered as sufficiently proved. [citations.] and therefore the response falls to the ground that the decree could not be changed unless both sides were given a hearing. for while francesca pompilia, whose defence had not yet been finished, was unheard, much less could the title of criminal knowledge be included in the condemnation of the canon. for this would be injurious to her, not merely as regards her reputation, but also for the loss of her dowry, for which her husband was especially greedy. for in this way would an undefended woman suffer condemnation, and what is worse, as the event shows, would be exposed to the fury of her husband. and hence with justice was this correction requested and made. and even if this had not happened, a sentence given against the canon could not injure her, as it was a matter done with regard to other parties. [citations.] but it is quite gratuitous to assert that a change as regards the matter of the trial does also impart the same change as to the expression of the title of carnal knowledge. for since several titles were originally expressed in the decree of condemnation (such as complicity in flight, running away, and carnal knowledge upon which the suit was based) the statement of the cause contained therein is no more probable as regards one than as regards another, and certainly it is not probable as regards them all. for if they had wished to include all those in the modified decree, they would have said: _pro causis de quibus in processu_, for the singular number does not agree with several causes. [citations.] but in the prosecution the charge of "criminal knowledge" was not proved and the canon could not be condemned for that while francesca pompilia was unheard and undefended. this is on account of the indivisibility of the crime of adultery, which does not permit the division of the case for the purpose of condemning the one, while the case is pending as regards the other. and this is especially true when all parties are present and are held in prison. [citations.] the expression, therefore, _causã¦, de qua in processu_, should be understood to apply only to the complicity in flight and running away (for this could be issued without the condemnation of francesca pompilia), and not to apply to "carnal knowledge." for the statement made should be considered applicable only to those matters with which the judgment relative thereto agrees. [citations.] and this claim of ours is rendered manifest by the mildness of the penalty to which the canon was condemned, namely, that of three years' banishment. this certainly does not correspond with the offences of running away with a married woman from her husband's home, bringing her to the city, and carnal knowledge of her. for inasmuch as the attendant circumstance of rape, spoken about, is punishable by the capital penalty, unless a priest is being dealt with, a far severer penalty would have to be inflicted for the adultery alone, if proof thereof had resulted from the trial. [citations.] my lord advocate of the poor acknowledges that the penalty was too light to expiate harshly such a crime, and especially in accordance with the constitution of sixtus, revived by innocent xi. of sacred memory. and therefore to avoid acknowledging the lack of proof, which might very well be inferred from the lightness of the penalty, he attempts to respond that the said canon was dealt with more mildly because he was a foreigner and because the crime under consideration had been committed outside of the ecclesiastical state. in this case one should be dismissed merely with exile. but this response is proved to be without foundation for many reasons. first, because on account of the well-known privilege of the city of rome, which is the country of all men, even those may be punished here who have committed crime outside of the ecclesiastical state, which is subject to the secular authority of the pope. and this is true, not merely for the handling of criminals, which is permitted to any prince, but for the trial of the crimes. [citations.] cyrill testifies that he himself had so held in 1540, in the capitolian court, and farinacci testifies that it was so held in this same court in the year 1580, in the case of gregorio corso, who had been condemned to the galleys, because he had committed murder in florence and had come here to rome, after seizing the horse of the one he had slain. and this was notwithstanding the fact that the cause was very sharply defended for the accused. [citations.] second, because this authority holds good whenever there is argument for punishing crimes committed by churchmen, who are subject to the jurisdiction of the supreme pontiff, and in the city can be punished for their crimes with the ordinary penalty, even though the crimes were committed outside of the temporal authority of the pope. [citations.] "rome is a common country and, therefore, in the roman courts any cleric or layman may be brought to trial, even though he did not commit his crime there." [citation.] third, because inasmuch as it was claimed that the approach to the city and the carrying away of the wife to the same were done because of lust, and to secure greater liberty for knowing her carnally, by taking her from the home of her husband, so the canon, on account of this purpose, would have subjected himself to penalties such as could really expiate the crime, and which also might be inflicted here in the city; for one is punishable with the same penalty who continues in a crime here, although he put it into effect outside of the state. [citations.] caballus [citation] holds that, for deciding the jurisdiction of a judge over crimes that have been committed, the person offending, rather than the offence, should be considered. [citation.] fourth, because the pretended carnal knowledge, so far as it can be said to be proved in the prosecution (and it can be verified that the decree was changed with relation to that), happened in the ecclesiastical state; for the strongest proof of that crime was drawn from the asserted sleeping together in the same bedroom at the inn of castelnuovo. [citation.] and therefore the canon could and should have been punished with condign punishment, not merely for his undertaking, but for the adultery, if that had been proved. and since this was not imposed, it may well be asserted that the canon was not at all condemned for "criminal knowledge," unless one wishes to criticise as unjust that decree, which imposed a mild penalty and one suitable merely to simple running away and complicity in flight, and which was much tempered because of the excuse brought by the procurator of the poor. therefore it may be asserted that the canon was not condemned for the pretended criminal knowledge, since the nature of the penalty well proves the nature of the crime, with which it should be commensurate, according to deuteronomy 25: "according to the measure of one's sin shall be the manner of his stripes." [citations.] and therefore, since the pretended condemnation of canon caponsacchi for criminal knowledge of francesca pompilia is excluded, the pretended notoriousness of the adultery resulting therefrom also falls to the ground. neither can this notoriousness be alleged against her undefended. and just as public vengeance, which is to be decreed by a judge, cannot be based lawfully upon it, so much less should private vengeance be considered excusable, when taken by the husband in murdering her after an interval. he is immune from the ordinary penalty for murder even according to the more merciful opinion only when the adultery is established by the very clearest proofs displayed in confession by the accused, or by a sentence given thereupon. likewise it would be superfluous to avoid the presumptions adduced by the defence, especially by the procurator of the poor, to destroy the proof of adultery drawn therefrom; for this single response would be enough, namely, that these proofs were all gathered together in the prosecution for pompilia's flight, made at the instance of count guido, he pressing hard to gain the dowry because of her adultery. and this was insisted on by the counsel for the fisc, who wrote acutely upon these matters at that time. and yet, in the report of the cause these presumptions were not considered by the judges because of their irrelevance. this is evident from the lightness of the penalty decreed against the canon. and so the examination of these cannot be renewed after the fisc has yielded and quietly acquiesced in the sentence, from which it could appeal if it considered itself wronged. nor could guido legitimately have recourse to such awful vengeance by his own hand. but lest some feature of the case may be left untouched, and that the justice of the decree may be more clearly asserted, i have taken the pains to confute these briefly. and since, in the first place, the cause of flight is considered by the defence in order that they may prove that the said flight was entirely illicit and was planned for easier criminal knowledge, the proofs brought for this purpose should be examined. the chief of these was drawn from the asserted letter of francesca pompilia, written to abate franceschini. this makes pretence that her parents urged her to poison her husband, her brother, and her mother-in-law, to burn the home, and to return to the city with her lover. but one cannot have a better refutation of this than the very tenor of that letter, including matters that are so improbable, yes and indeed incredible, that it was rightly rejected by the judges. for who can be found so destitute and ignorant of filial love and duty as to make himself believe that a mere child, not more than fourteen years old [citation], married away from her father's home, grieving bitterly for the departure of her parents, and wretchedly kept in the home of her husband, so that she was obliged to have recourse to ecclesiastic and laic authorities, could have written to her husband's brother (who was so unfeeling toward them), with a calm mind, of such base counsels and commands given by them, unless, as she ingenuously confesses, she was compelled by her husband to write it? nor could she, without great peril, refuse her husband, who was demanding this. such an improbability alone is enough to thrill with horror those reading it, and well shows that she had written this not of her own accord, but under compulsion. [citations.] and, therefore, there is no need to examine whether the qualification added to her confession is probable, namely, that her husband had first marked the letters of the said epistle, which she had afterward inked by tracing them with a pen; because she did not know how to write. for possibly she shuddered to confess that she had written such matters, even under compulsion of fear, to the injury of her father and mother. such fear is quite presumable in a wretched wife of tender age, destitute of all help, away from her father's hearth and in her husband's home. [citations.] mogolon says that from the absence of relatives, the presumption of such fear may arise. [citation.] and this is especially true after she had had recourse in vain to the authorities. nor is a sufficient proof to the contrary deducible from francesca's signature to the matrimonial contract, and from the letters that were said to have been written and sent by her in succession to the canon, or else thrown from the window. [citation.] for the very brief signature made in the marriage agreement does not show such skill in writing that with the same ease she could have written so long a letter, inasmuch as daily experience teaches that many are found who can scarcely write their own names. still less can the ability to write be said to be proved by the asserted love-letters; for these were constantly denied by pompilia. nor can these letters be said to be sufficiently verified by the assertion of the said witness for the fisc, namely, that she threw from the window a note, which the canon picked up and then departed. for aside from the fact that the witness stands alone and is of the basest condition, namely a dishonest harlot, and so unsuited for proving a matter [citations], she neither affirms, nor can affirm that the said letter was written by francesca pompilia. likewise the letters found in the prison of castelnuovo might have been written by some stranger's hand. and even though they had been written by her, inasmuch as they are of a later date, they do not prove her skill in writing at some past time; for she could have acquired this skill afterward because of desperation which sharpened her wits, for the purpose of inducing the canon to undertake the flight with her, so that she might escape the peril of imminent death. for in such matters at these, which are variable and can be changed, one cannot well argue from the present to the past. [citations.] and that in fact she did learn to write in arezzo after the departure of her parents is evident from her letter written in the prison of castelnuovo, and found among her private papers after her death. this is given in the present summary, no. 3. the proofs of the abovesaid letter [to abate franceschini] drawn from the letters of the governor of arezzo, of the reverend bishop, and of bartolommeo albergotti, are so far from excluding the legitimate reason for flight given by herself and the canon, during the prosecution, that they rather favour it. for although they criticised her for having such ill-advised recourse to them, they possibly did this to free themselves from censure for having thoughtlessly turned her away. therefore it is more probable that by them the minds of her cruel husband and of her mother-in-law, who was pitiless and implacable, as experience teaches us, were exasperated all the more. any one may well know that guido's mind was much more embittered after the lawsuit brought concerning the pretence of birth and the rescinding of the dowry contract, and after the publication of pamphlets about the domestic scantiness and the base treatment which they had suffered in the home of the couple in arezzo. his anger was also stirred by his jealous suspicion of the canon (although pompilia's love of the latter was merely pretended for the purpose of winning him) and by his exasperation, that increases the deadly hatred, which arises from a lawsuit about a considerable amount, and much more about an entire property. [citations.] such should the controversy about the pretence of birth be considered. nor can the just fear of the luckless wife as to her deadly peril be denied. and driven to desperation in avoiding this, she might well have fled; for if it is permissible because of blows beyond mere legitimate correction [citations] how much more permissible should it be considered, when the wife was continually afraid that he would kill her either with the sword or by means of poison. and, to avoid this, it was but prudent counsel for her to leave her husband and go back to her father's hearth. it would indeed have been better if she had won her security by having recourse to the right reverend bishop, in order that he might place her in some nunnery or with some honest matron; or to the lord governor, who would have considered her safety and the honour of her husband's family; or if she had fled in the company of some one connected with the household. but the fear of imminent peril does not permit one to take better counsel, and especially a wretched wife of tender age, destitute of all aid and exposed to the fury of her husband and her mother-in-law. and still further, she might well fear that new recourse to them would be in vain, since she had found the former so useless. nor could she find any better way of fleeing safely, wherein she thought lay the sole help for herself, than by using the help and company of the canon, who had been proposed to her for this purpose by the canon conti and by signor gregorio guillichini, relatives of her husband. it is incredible that they would have conspired against guido's honour without the strongest and most urgent reason and without confidence in caponsacchi's honesty and modesty. for one of them, namely gregorio, had offered himself as a companion for the journey and would have carried out his offer if his infirmity had permitted; as we read in the said letter of francesca pompilia found since her death and shown in our present summary, no. 3, which refers to the same causes, of the infirmity of gregorio and the imminent peril, which did not permit her to await his convalescence. and therefore she is worthy of excuse since she fled for dire necessity in company of the canon, a man of modesty well known by her (as is likewise evident from another letter in the summary of our opponents, no. 7, letter 12, in which she calls him the chaste joseph, and from the other letter, in which she commends him for his sense of shame). for if she chose this remedy under dire necessity, she should be excused according to the common axiom, "necessity knows no law." [citations.] nor is an illegitimate cause of flight to be inferred because of the dishonest love with which francesca pompilia pursued the canon in some of these letters. for although they seem amatory, yet they were ordained to the purpose of alluring this same canon, in order that he might flee with her; since, without him, she knew that she could neither carry that out, nor even attempt it. hence the letters can afford no proof of subsequent adultery. for although proof may result from love-letters, according to the authorities adduced by the defence in ⧠_his praehibitis_, yet this is avoided, if the letters are directed to a permissible end, such as flight to escape deadly peril. for then, inasmuch as the end is permissible, the means are likewise so considered, even though these are not without suspicion; for they are not considered in themselves, but because of their end. [citations.] nor is the proof of adultery hitherto drawn from love-letters so very strong unless they include the implicit confession of subsequent fornication. [citations.] the following consideration is especially urgent in leading to the belief that the luckless girl thought the canon would conduct himself modestly during the journey. for in one of her letters she does not fail to take him to task (who had elsewhere been commended for honesty and modesty) because he had sent her questionable verses (present summary, no. 4): "i am surprised that you, who are so chaste, have composed and copied matters so immodest." and further on: "i do not want you to do in everything as you have done in these books; the first of them was so very nice, but these other octaves are quite the contrary. i cannot believe that you, who were so honourable, would become so bold." from this sincere rebuke it is quite evident in what spirit these letters were written, even though they are filled with blandishments and proofs of love; for she shrank even from the dishonourable verses sent to her. hence the letters should be understood according to the intention of the one writing them, just as one's words are. [citations.] and should not the supposition that the unfortunate wife had destroyed her matronly shame in the journey be therefore considered trivial and improbable? for she had quite enough to do to provide for her own safety by headlong flight. nor is it probable that she was tempted by the canon, since the love between them is proved merely by the said letters which were preparing for the flight. and these letters show her solicitude for his modesty and continence, since for the mere sending of them she had made such complaint. for she feared lest he might become too bold, as is evident from details of the letter cited above. nor are examples lacking of continence observed during a longer and easier journey, which had been undertaken and completed by lovers, even though they might lawfully have indulged their love. hence it is not improbable that the wretched girl kept herself scrupulously within bounds; for she was in deadly peril, which she hoped to avoid by precipitate flight. the other proofs of this pretended adultery are far weaker, and were rightly ignored in the report of the case, both as regards the flight and as regards the decreeing of torment; for mutual love between her and the canon cannot be said to be sufficiently proved by the abovesaid letters; for they were preparatory to this prearranged flight. the entry and egress to and from the home of francesca by night is proved by a single base witness. nor should even such entry be considered to be for a bad end, since it was in preparation for the flight. for when we have a permissible cause given, to which a matter may be referred, it should not be attributed to one that is illegitimate and criminal. [citation.] to this reason also should be referred her readiness in showing herself at the window by day and night at the hiss which gave signal that her pretended lover was passing. for since her love might be a mere matter of pretence for the purpose of winning him to give her help in the flight by affording her his company in the journey, these marks of love can be of no further import than the pretended love itself. the unfortunate wife employed it as a stratagem, indeed, that she might provide for her own safety. and so this response recurs: "if the end is lawful, the means ordered toward carrying it out cannot be condemned." the pretended insidious manner of preparing for the flight and putting it into execution by means of an opiate administered to her husband and the servants (so far as it is proved, and it was by no means proved in the prosecution) affords indeed a proof of her flight, but not of adultery; for it was prearranged, not for that purpose, but to escape deadly peril, to which the wife would have exposed herself, all too foolishly, unless she had made sure that her husband, who was lying in bed with her, was sound asleep, or unless she had contrived some such easy way. the ardour shown in some of the letters is indeed a sign of love, according to the word of the poet: "love is a thing full of solicitous fear." [ovid, _heroides_, i. 12.] but since love was pretended for a legitimate end (as was said) she could also make a show of ardour for feigning love, since it tended toward the same end of winning his goodwill, so that possessed of his true service she might escape. therefore, from this pretended love and these feigned signs of love, one cannot argue that their departure together from the home of the husband and their association during a long journey gives proof of the pretended adultery; because even in true and mutual love continence has been observed, which is certainly more difficult. nor are the authorities adduced by the defence, in ⧠_accedit quod_, applicable; because that text has regard to a woman spending the night outside of her husband's home and against his will, without just and probable cause, as is evident from the words of the same. this decision is not applicable to our case, since the wretched pompilia left her husband's home and went to her father's hearth that she might escape the deadly peril which she feared was threatening her. and so, since she did it for just and probable reason, the condemnation of the aforesaid text is turned away. and farinacci so explains the assertion. [citations.] "but it is otherwise if done for reason, because the mere spending of the night together does not of itself prove vice; for a case can be given where a wife spent the night with men, and yet did not break her marriage vow." [citation.] since this possibility is verified in our own case also, the proof of subsequent adultery cannot be inferred from her flight and association with him in the journey, for the purpose of providing for her own safety. their mutual kissing on the journey, so far as it is proved, affords no light presumption of violated shame; but the proof of it is too uncertain; for it rests upon the word of a single base witness, who swears to matters that are quite improbable, namely that, while he was driving their carriage very rapidly, he saw francesca pompilia and the canon kissing one another. how full of animus this deposition really may be is evident from this fact--that during the night he saw a momentary and fleeting deed, without giving any reason for his knowledge, such as that the moon was shining or that some artificial light afforded him the opportunity to see it. [citations.] the improbability, or rather incredibility, is increased because, while the witness was intent on driving the carriage with such great speed as to seem like flying (as another witness testifies), how could he look backward and see their mutual kissing? such an improbability would take belief away not merely from a single witness, but from many of them. [citation.] furthermore, there is the possibility to be considered that the jostling together of those sitting in the carriage might have happened from the high speed; and from this fact an over-curious witness might believe that they were kissing each other, although, in fact, the nearness of their heads and faces to one another might indeed be by mere chance, and not for the purpose of shameful and lustful kisses. because whenever an act may be presumed to be for either a good or a bad end, the presumption of the evil end is always excluded. [citations.] and so in the said report of the prosecution for flight, this presumption was justly passed over because of lack of proof; nor would it have been rejected otherwise. nor can this improbable and prejudiced deposition of the said witness receive any support from the pretended letters, in which francesca thanks him for the kisses sent, which she says would be dearer to her if they had been given by the canon himself, and sends him back ten hundred thousand times as many. for it cannot be thence inferred that if the opportunity were given their mutual kissing would follow, since these words were offered as serviceable and alluring for the purpose of winning him over; nor do they involve an obligation. [citations.] and therefore they do not lead one to infer that they were carried out, especially since francesca many and many a time warned the canon to observe due modesty. and when she found that he had transgressed its limits by sending her dishonourable verses she abjured him not to become bold in urging his passion. this is far removed from impure desire to receive his kisses, which is formally stated in the said letter, as it is without any thought of injuring her matronly honour. the use also of laic garb, in which the canon was found clothed, can afford no proof, because, as he is no priest, he cannot be said to be forbidden to do so on a journey. and this was probably arranged in good faith to conceal himself and to avert scandal, which might be conceived at seeing a priest with a woman in the flower of her age and, as i have heard, of no small reputation for beauty, journeying without the company of another woman or servant. [citation.] and so the authority of matthã¦us sanzio, etc., is not applicable, because in his case there was no concurrent cause on account of which the priest might approach with improper clothes and girded with arms; and he was found by the husband, either in the very act or in preparation thereto, and was killed on the spot. in such a case the proofs of adultery may well be admitted for the purpose of diminishing the penalty, and they were gathered by the same author to that end. their sleeping together on the same bed, or at least in the same bedroom, at the inn of castelnuovo, was not given consideration in the report of the prosecution for flight, because of defect of proof. this charge was indeed denied by francesca pompilia, and the canon frankly confessed merely that he had rested for a little while on another bed in the same room. nor ought a brief stay in that room be magnified to a crime, since it should be attributed to his guardianship of the said francesca, whom he was accompanying on the journey, and hence was under obligation to guard her lest some evil might befall her. whenever an act may be said to be done for a good purpose all suspicion of evil ceases. in these very circumstances, gravetta [citation] says that the interpretation should tend toward lenience, even though the harsher interpretation seems the more probable. nor does it suffice as a full proof of adultery (if one is arguing a criminal case) that a young man be seen alone and naked with her, and that he be found locked in the bedroom with the wife, even though he have his shoes and clothing off; because these matters may be merely preparatory. and much less can proof of adultery arise from his brief stay in the same bedroom for the purpose of protecting her. nor can proof of their having slept together be drawn from the deposition of the servant of the same inn who asserted that he had been ordered to prepare only a single bed. for it does not follow from this that both of them slept in it; but this was done because only pompilia wished to rest a little while to refresh her strength, which had been exhausted by the swiftness of the journey they had made. the canon was keeping guard over her and preparing for the continuance of the journey; and so, when the husband arrived, he was attending to this by ordering that the carriage be made ready. hence no proof of their having slept together can result from this deposition, and it was justly rejected by the judges, so that it needs no further refutation. and although francesca pompilia, in her cross-examination, tried to conceal a longer stay at the said inn by asserting that they had arrived there at dawn, yet no proof of adultery may be drawn from the said lie, for she made that assertion to avoid the suspicion of violated modesty, which might be conceived from a longer delay and more convenient opportunity. and so, inasmuch as her confession would have done her no harm, even if she had acknowledged it with circumstances leading to belief in the preservation of her sense of honour, neither can this lie injure her. [citations.] since, for these reasons, the proof of the pretended adultery is excluded and almost utterly destroyed, no attention should be paid to the fact that count guido, in his confession, claims the mitigating circumstance of injured honour, as regards both his wife and his parents-in-law; and that this confession cannot be divided for the purpose of inflicting the ordinary penalty. for authorities of great name are not lacking who affirm that a qualification to this end added to a confession, ought to be rejected; and above the others, is bartolo [citation], who proves this conclusion by many reasons, and responds to those given contrary [citation], where it is said that a judge should not admit such qualified confession. [citations.] nor is such a plea of injured honour always in one's favour in avoiding the capital penalty, but only when vengeance is taken immediately; or after an interval, according to more lenient opinion, when the adultery is proved by condemnatory sentence or by confession. but the reins of private vengeance would be relaxed far too much to the detriment of the state if, when proof of adultery were lacking, a stand could be made for the purpose of diminishing the penalty upon some qualification added by the defendant to his confession. because in this way a witness might make a way of escape in his own cause, which is not permitted to any one. [citations.] and nothing more absurd can be thought of than that the burden of proof incumbent upon him for escaping the ordinary penalty might be discharged by the mere assertion of the defendant. nor should we admit the opinion that, even when the adultery is proved, a husband may kill, after an interval, an adulterous wife without incurring the capital penalty, since the weightiest authorities deny that. [citations.] bartolo, in distinguishing between real and personal injury, affirms that when injury is personal, it should be resented immediately; but if it be real it may be resented after an interval. [citations.] and gomez declares: "i hold the contrary opinion, indeed, that a husband may be punished with the ordinary penalty of such a crime as murder; and for this reason he may not by any means be excused, because murder cannot be committed to compensate for a crime or for its past essence, unless one kill in the act of flagrant crime," etc. and in subsequent numbers he responds to reasons given to the contrary. [citation.] gaillard, after he says that murder committed for honour's sake is permissible, states that this exception should be understood to hold good if the injury be resented immediately, but that it is otherwise if done after an interval. in this case the retort is more like vengeance than the defence of honour, and the offender is held to account for the injuries. [citation.] much less can it be claimed that the vengeance was taken immediately because the husband executed it as soon as possible, according to the authorities adduced by my lord advocate of the poor [citation], where he tries to show that since guido was unarmed, or insufficiently armed (that is, he was girded only with a traveller's sword), he could not attack the wife accompanied by the canon; for caponsacchi, as he claims, is strong and bold, and accustomed to sin in that way, and was carrying firearms. and the wife showed herself ready to die in the defence of her lover; for it is said still further that the wife rushed upon guido with drawn sword, and was about to kill him, if she had not been checked by the police officers. but the opportunity to kill an adulteress is not to be so taken that a violent death may be visited upon her with all security and without any risk. for every legal opinion giving excuse for diminishing the penalty shrinks from this. for such diminution of the capital penalty follows because of the violence of sudden anger, which compels the husband to neglect the risk to his own life, that he may avenge the injury done him by the adultery. and so this first opportunity, as spoken of by the authorities, in order that murder may be said to be committed immediately, should be understood to be whenever an occasion first offers itself, in excusing the delay in taking vengeance either because of absence or for some other just reason. such is the fact in the case about which matthã¦us sanfelix writes, _contr._ 12. for in that case, the adultery was committed in the absence of the husband, and the wife had run away, so that he could not have avenged himself earlier, as is evident from the narrative of fact, given in no. 1, and no. 28 established this conclusion: "so they are excused if they take vengeance as soon as possible, since it then seems that they killed incontinently." but who can say in our case that the husband took the first chance, since when he found his wife in the very act of flight, at the tavern of castelnuovo, he abstained from vengeance with his own hand, and turned to legal vengeance, to which he had always clung. and indeed he charges himself with the worst baseness when he asserts that he was unequal to the task of taking vengeance because of the fierce nature of the canon; since, when the latter had been arrested, guido could have rushed upon his wife. nor ought the kind of arms they carried to have alarmed him, because, according to the description made in the prosecution, it is apparent that the canon was wearing only a sword. and so they were provided with like arms. he would not have taken such care of his own safety if he had been driven to taking vengeance by the stings of his honour that needed reparation, even at some risk to himself. for just anger knows no moderation. and he should lay the blame on himself if, alone and insufficiently armed, he had followed up his wife, who was fleeing, as he might fear, with a strong and better-armed lover. his very manner of following her proves the more strongly that his mind had turned toward legal vengeance, for the purpose of winning the coveted dowry, rather than to vengeance with his own hand for recovering his honour. for facts well show that such was his thought. [citations.] likewise the delay of the vengeance after the return of the wife to her father's home excludes the pretended qualification that the vengeance was taken "immediately," because he could not put it into execution sooner. for the return home took place on october 12 of last year, and the murder was not committed till the second of january of this year. and we should rather assert that he was waiting for her confinement, which took place on december 18, in order that he might make safe the succession to the property, for which he was eagerly gaping; because he immediately put into effect his depraved plan by destroying his wife and her parents with an awful murder. hence, from a comparison of these dates it will be easy to see this, and it is evident with what purpose he committed the murders, and whether this vengeance for the asserted reparation of his injured honour may be said to have been undertaken "immediately," that is, as soon as opportunity was given, according to the authorities adduced on the other side. then when he had chosen legal vengeance by the imprisonment of the wife and of the pretended lover, and by the prosecution of the criminal cause, it was not permissible for him to go back to vengeance with his own hand; and in taking that he cannot be said to have taken vengeance immediately. he also violated public justice and the majesty of the prince himself. this single circumstance greatly exasperates the penalty and increases the crime. [citations.] [but the above is true] in spite of the fact that the conclusions adduced by the advocate of the poor, in ⧠_et tantum abest_, may be applicable, and likewise the authorities approving those conclusions, on the ground that it is not presumable that the husband has remitted the injury, but rather that his desire to avenge himself has continued; and that this excludes the charge of treachery, even though the husband use trickery in taking vengeance. because in the present case the question is not as to the nature of the murder, from which it might be claimed to have been treacherous. the husband indeed did not conceal his injury, but rather laid it bare by turning to legal vengeance. although this is possibly less honourable, yet since it was pleasing to him, for the purpose of gaining the dowry, he could not when frustrated in this hope, because the adultery was unproved, take up again the vengeance with his own hand. and this is true even though he pretends as an excuse for his delay that he could not accomplish it sooner. for since the delay and hindrance arose from his own act he could not take therefrom the protection of an excuse. [citations.] but, however he might find excuse for the barbarous slaughter of his wife while under the authority of the judge at the instance and delivery of her husband, certainly the murder of pietro and violante should be considered utterly inexcusable. in his confession he has tried to apply to them also his plea of injured honour, because of their pretended complicity in urging the flight of his wife and in her asserted dishonour. yet no proof of this qualification can be brought, nor did the slightest shadow of it result from the prosecution for flight. and this is proved to be improbable, and utterly incredible, from merely considering the fact that abate franceschini, brother of the accused and confessed defendant, would not have consented that she be committed to their custody if he had had even the slightest suspicion of their complicity, since he so keenly desired the reparation of their honour. this fact, which was plainly confessed in an instrument prepared in the statement of fact in the italian language [pamphlet 10] and very stoutly denied by the procurator of the poor, was admitted by his own wonderful ingenuity in denying merely that notice had reached the husband, or in claiming that the fisc could pretend to no more than mere presumptive knowledge in guido. but, still further, such knowledge is quite probable and is drawn from strong proof. for it is very probable that guido was informed by his brother of his wife's departure from the monastery, of her establishment in the said home, of the obligation assumed by her parents to provide her with food, and especially of her detected pregnancy. [citation.] but we are not now arguing to prove the husband's knowledge thereof, but to draw from that consent of abate paolo a proof which would exclude the pretended complicity of pietro and violante in the dishonour of the wife, which latter is by no means proved. so far is such complicity from being proved as regards pietro, that the very contrary is quite evident from his will, made in 1695, after litigation had been instituted about pompilia's pretended birth. in this will, notwithstanding the litigation, in the first place he leaves as his usufructuary heir violante his wife, and after her death francesca pompilia, laying upon her the obligation to dwell in the city and to live honourably. this is evident from the details of the said will given in our present summary, no. 5. in this he also asserts that she had thus far conducted herself honourably, and he claimed to leave the annuity to her because of her good manner of life. and so it becomes still further incredible that he, while alive, was willing to conspire in her dishonour, from which he shrank even when dead. for the income was to be taken from her if she should live a dishonest life, and he urged her in case her marriage were dissolved to assume a religious dress, and he left her a fat legacy to that end. nor can it afford any proof of this pretended complicity that when guido had made pretence of delivering a letter sent to them from the canon, the doors were immediately opened by violante to the assassins. the attorneys for the defence try to argue from this ready credulity that the name of the lover was not hateful to violante, and that hence his intimacy with francesca was not displeasing. but since the canon was the author of her liberation from deadly peril by bringing her from her husband's home to her father's hearth at the neglect of his own risk, it should not seem wonderful that violante should give proof of a grateful mind for the help given her daughter and should open the door. nor can one infer therefrom consent in unchastity, from which their past acquaintance had been entirely free. much more is this so at a time when he himself was absent and in banishment at civita vecchia. therefore the true cause, on account of which the comparini also were murdered, could be no other than the hatred with which the husband had been aflame; [and this first of all was] because of the lawsuit concerning the supposed birth, which they had brought, and which had deceived him in his hope of gaining a fat dowry and inheritance; [and second] his desire for vengeance because of the pamphlets distributed at the time of the said lawsuit, and which had exposed the meagreness of the home comforts and the wretched treatment they had received in the home of the husband. these two do not excuse guido from the penalty for premeditated murder, and indeed increase it, even raising it to the crime of _lã¦sa majestas_, according to the well-known order of the constitution of alexander, as was proved in our past information, ⧠_accedit ad exasperandam_. to escape the penalty assigned thereto by the disposition of this decree, in vain does he turn to an excuse drawn from supervening provocation. [citation.] but so far as it is claimed that this crime resulted from the counsel they gave toward her flight, and their complicity in the same, the proof of such complicity is entirely drawn from the asserted letter, written by francesca pompilia to abate franceschini. but this letter has been completely rejected, and even spurned by guido himself, since in the prosecution for flight we find no insistence was made that action should be entered against pietro and violante for their pretended instigation. pietro, moreover, had long ago broken off the lawsuit brought as regards the pretended birth and the revocation of the dowry contract, and so this complicity cannot be made to seem the sole provoking cause, which would exclude _causa litis_. for such a cause should be true and not pretended, and should be in accord with the crime committed. [citations.] these excuses, indeed, which are claimed to be drawn from complicity in the asserted dishonour, are still further excluded by lack of proof, both of the impurity and of their connivance therein; and so the provocation implied therefrom is shown to be entirely irrelevant, and possibly fraudulent. the other suit for divorce, brought in the name of francesca pompilia, it is vainly claimed is made void because of the asserted invalidity of the summons; for this summons was executed against abate franceschini, who lacked the authority of a proxy. yet his authorisation was quite full enough for a lawsuit, as is evident from its tenor as given in our present summary, no. 6, and accordingly when a suit was brought it was ample for receiving a summons. [citation.] we are also dealing with the conditions of the constitution of alexander and of the order of the banns given against those who commit offence on account of lawsuits. hence the reply is not relevant, which is given by the procurator of the poor in ⧠_quae etiam aptantur_, that when the dishonesty of the wife is established her impunity from the wrath of her husband, who would take vengeance, should not be permitted by the introduction of a divorce suit. nor can such murder be said to be committed for the reparation of honour when committed in anger at a lawsuit. for he takes for granted as proved, what is in question, namely, the dishonour of the wife, the proof of which is quite lacking. and guido might have proceeded to such an extreme if, as soon as the adultery was committed, his wife brought a suit for divorce; but it is otherwise since he tried that revenge after the way of legal vengeance had been chosen by bringing criminal charge for the pretended adultery and for the purpose of winning the dowry. for after he was frustrated in this hope (since no proofs of adultery resulted from the prosecution), and after her husband's mind had been exasperated, she ought to be permitted to provide for her own safety by begging for the remedy of divorce. and while such judgment is pending any murder inflicted upon her ought surely to be expiated by the penalties inflicted under the sanction of the alexandrian constitution and of the banns. for the provision of this decree is applicable, since the murder was committed while the criminal cause, brought against her for pretended adultery by her husband, was still pending. and this decree includes both civil and criminal suits, as is evident from reading it. likewise the assembling of armed men, and their introduction into the city for accomplishing more safely the murder of the entire family, increases the crime to _lã¦sa majestas_, and also necessitates the increasing of the punishment, as was affirmed in our former information. nor is this avoided by the replies given, or rather repeated, by the defence, and especially by the response that since the principal offence was committed for honour's sake (and hence the ordinary penalty of the _lex cornelia de sicariis_ has no application for that reason), so likewise the penalty for assembling men, imposed by the apostolic constitutions and the general banns, cannot be inflicted; for the latter is included with the penalty for the principal offence, which alone is to be attended, since the spirit and purpose make differences in crimes. [citations.] because the order of the said constitution and banns would prove utterly vain if the penalty for assemblage should cease, whenever the assembly were made for the purpose of committing some crime that is punishable with a milder penalty. [citation.] this bull indeed is applicable even when men are called to arms in a permissible cause and for a good end; because by it the supreme pontiff wished to provide for the public security and to restrain the audacity of those laying down the law for themselves. hence all the more shall it have place when the assembly may be made for an evil end, namely for committing crime, even though the crime may not deserve the ordinary death penalty, and when the crime actually follows. [citation.] spada gives this reason, that the pontiff in establishing this constitution considered only the uproar and other ills which are accustomed to arise from the assembling of armed men to the injury of the public peace. and although his opinion was rejected by the authorities adduced by his honour, the advocate of the poor, in ⧠_non refragante_, this refutation does not apply to the assembling of armed men to an evil end (even though this end is not so criminal that the death penalty may be inflicted), but to their assemblage for a permitted cause of regaining possession immediately, by meeting force with force. even in this latter case spada holds that there is place for the order of the bull. hence the refutation given above does not prevent the application of the provision of the abovesaid constitution to our case, since the assembling was prearranged for the murder of an entire family, which was put into execution with reckless daring. nor may the opinions of the said judges of the sacred rota, requiring that the assemblage be directed against the prince or the state, and not to commit some other crime, stand in the way; because if this qualification were accepted as true the decree would be vain which had raised the act to the crime of _lã¦sa majestas_ and rebellion; for this crime would result plainly enough from the deed itself, and from the intent to disturb the peace of the prince and the state. and so far as the opinion affirmed by these authorities does have foundation, it can be applied when we investigate the order of the constitution, and not of the banns issued later. for this decree would prove vain and useless if the capital penalty, imposed thereby against those assembling armed men, could be applied only when the crime for which the assembly was made was punishable with the same penalty. and even if this necessity be admitted, the application of the constitution cannot be avoided, because no plea of injured honour can be alleged in excuse for the murder of pietro and violante, and it had not at all been proved as regards francesca pompilia. likewise the preparation and use of prohibited arms is also punishable with the capital penalty, if we investigate the order of the banns and constitutions of alexander viii., of sacred memory. nor is this sufficiently avoided by the response given by the defence that it is included in the main offence; so that no greater penalty can be inflicted for it than the main crime itself deserves. for what we have said above as regards "an assembling" is opposed to such a confusing of the punishment of the banns, and the authorities adduced in our past response, ⧠_nec delationis_, affirm the contrary. and those authorities cited for the contrary opinion should be understood to apply only when one is dealing with an insult, or with murder committed in a quarrel, or in self-defence, or for the sake of immediate reparation of honour. [citation.] the difficulty is at an end in our case, because of the clear disposition of the banns, which expressly declare and command that the penalty for the carrying of arms is not to be confounded with the penalty of the crime committed therewith. nor does the response given by the procurator of the poor seem strong enough to avoid this; namely that when, under the common law, the banns receive only a passive interpretation, merely the crime of preparing and bearing arms for committing murder is considered; but that it is otherwise if the arms are borne, for no ill end, and then a crime is committed with them. because it would be too harsh for one bearing arms for no ill end and then sinning with them, to suffer a greater penalty than one preparing arms to commit crime, and carrying his purpose into effect. hence these banns never can receive such an interpretation. for since by them the carrying of arms is forbidden as pernicious and as affording occasion to commit crime, much more should the bearing of them when purposed for committing crime be considered prohibited and punishable with a rigorous penalty. this is especially true when we consider the declaration that the crimes are not to be confounded with one another. there is left, finally, one other qualification, which greatly aggravates the crime, namely the violating of the home assigned as a prison with the consent of abate franceschini. and this is so in spite of what can be alleged as to guido's ignorance of this circumstance. because in the said writing prepared in italian for giving true notice of the fact [pamphlet 10], it is asserted that the entire management of the cause was left and committed to this same brother, since guido had left the city. hence it is quite incredible that guido was not informed by him of so important a matter. and as concerning the distinction between violating a public prison and mere custody in a home under bond, and as to offence permitted therein for honour's sake, we have given sufficient response in our past argument, ⧠_quibus accedit_ and those following. for the same reasoning is applicable in both cases, since in both the person detained is under the protection of the prince whose majesty is accordingly insulted. and the excuse would hold good if we were arguing about the resenting of an injury offered in prison. under these very circumstances do those authorities adduced by the defence speak, as is evident from their recognition of them. therefore, in the present case many grave qualifications are present, which increase the crime, and on account of these his honour, the advocate of the poor, admits in ⧠_agnoscit fiscus_ that the penalty should be increased. nor can such increase of penalty be made good except by death. for even if the adultery were proved, as it is not proved in our case, the mere murder of the wife, when committed after an interval, could demand only a diminution of penalty, according to the more lenient opinion. hence the justice of the decree for the torment of the vigil should be said to be sufficiently asserted and vindicated against opposing reasons. and now that confession has followed, there remains only that condign punishment be inflicted in expiation of this awful crime. giovanni battista bottini, _advocate of the fisc, and of the reverend apostolic chamber_. [file-title of pamphlet 14.] _by the most illustrious and most reverend lord governor in criminal cases:_ _roman murder-case with qualifying circumstance._ _for the fisc, against count guido franceschini and the others._ _response of the lord advocate of the fisc._ _at rome, in the type of the reverend apostolic chamber, 1698._ romana homicidiorum cum qualitate [pamphlet 14.] most illustrious lord: the matters deduced by his honour, the advocate of the poor, for the defence of guido franceschini, who is accused of three murders with very grave qualifications which magnify the same, are of no real force in proving [first] that he should not be punished with the ordinary penalty of the _lex cornelia de sicariis_, inasmuch as he had confessed these crimes, and [secondly] that simple torture only should be demanded for gaining the truth as to these, and that the torment of the vigil should be omitted. i will attempt to show this, in responding to these points singly, so far as the excessive scantiness of time admits, and will keep my eyes on the rights of the fisc, as the duty of my office and the dire atrocity and inhumanity of the crime demand. the chief ground taken by my lord consists in placing on an equality [first] a case of vengeance taken immediately by the husband with the death of the adulteress found in her sin, and [second] that of one slain after an interval when the wife is plainly convicted of adultery (as he claims is proven in our case). but this falls to the ground both in fact and in law; and hence the inference for the moderation of the penalty drawn from this same parity is likewise shown to be without foundation. in fact, the proof of the pretended adultery is quite deficient according to what i deduced fully in my other information. in that, i have confuted singly his proofs, or rather suspicions, resulting from the prosecution, to which his honour attaches himself. i have shown that the wife's flight in company with canon caponsacchi, the pretended lover, was for a legitimate reason (namely the imminent and deadly peril, which she feared), and not from the illicit impulse of lust. the participation and complicity of the canon conti and signor gregorio guillichini, relatives of the accused, in forwarding the same, ought to prove this. for they would not have furnished aid if she were running away for the evil purpose of violating her conjugal faith, even to their own dishonour. but they well knew the necessity of the remedy, and that it was to free her from peril. and a witness for the prosecution in the same trial for flight swore to having heard this from signor gregorio. and they gave their aid in carrying this out. nor is it at all relevant that, in the decree in condemnation of the same canon to banishment in civita vecchia, the title of "carnal cognition" was written down; because, as was formerly responded, the alteration of that was demanded, and likewise the substitution of a general title relative to the trial. and since no proofs of it resulted either from the prosecution or from the defences which the unfortunate wife (who was dismissed with the mere precaution of keeping her home as a prison) could have made, if she had not been so horribly murdered, and since the said decree, issued without her having been summoned or heard, would be void, the inscription made by the judge in the records as a title could not convict her of that crime; but only the truth of the fact resulting from the proofs should be considered. [citations.] i acknowledge that the accused should have been considered worthy of some excuse if he had slain his wife in the act of taking her in flight with the pretended lover; since for this purpose, not merely the absolute proof, but the mere suspicion of adultery committed, would be enough. [citation.] but when, after neglecting the pretended right of private vengeance, he sought out with entreaty public vengeance, by having her arrested, he could not thereafter, while she was under the public authority of the judge, take private vengeance by butchering her who had no fear of such a thing. the suspicion of a just grievance, which is difficult to restrain when aroused, excuses the husband in part, if not entirely, whenever he takes vengeance immediately under the headlong impetus of anger. but when the vengeance is after an interval, and while the cause is in the hands of the judge, and the victim is imprisoned at his own instance, this does not hold good, as will be proved further on, by showing the irrelevance of the principle assumed. nor does the glossa in the alleged text, in the law of emperor hadrian, stand in the way; because it speaks of a son taken by his father in flagrant adultery with his step-mother, and killed by the father immediately. [citation.] and there is a wide difference between a father and a husband killing after an interval; because, as farinacci adds, a father has the greatest authority over his son, and by ancient law could even kill him. and certainly the husband does not have this. the law also more readily excuses a father, because he is always supposed to take good counsel for his child, from the mere instinct of paternal love. but one does not have this same confidence as regards a husband, who is accustomed to conceive unjust suspicion of his wife more readily. hence it is not permitted that he kill her on mere suspicion after an interval. nor is he in any way to be excused on this account, according to the text. [citation.] "the devotion of a father's love usually takes good counsel for his own children, but the hot precipitancy of a furious husband should readily be restrained." [citation.] this is so far true that a father is not excused unless he kill, or at least severely wound, his daughter along with the adulterer; so that it should be attributed to fate, rather than to paternal indulgence, that she escape death. and this has been passed by law-makers for no other reason than that such a grievance, provoking to rash anger, is required for excusing a father, so that he may not spare his own daughter. but since this statute is not to be found among the laws about husbands, the manifest difference between the two, because of the husband's excessive readiness to seize a suspicion and fly into a rage against his wife, is plainly revealed. nor is mere suspicion a sufficient ground to diminish the penalty for a husband who kills his wife after an interval. this is evident from the very authorities excusing him in such a case, whenever the adultery is proved either by the confession of the wife or by other proofs, so that she can be said to be convicted of it. [citations.] bertazzolus says: "i have seen the matter so regarded in the contingency of such a fact, and the husband has been excused who had killed an adulterous wife, not found in the very act, but whose adultery was really and truly existent and was quite plainly proved." hence it is plain, from those very authorities adduced by his honour, that the husband who kills his wife after an interval is not excused because of mere suspicion, or because of an adultery case which is still pending judgment, and which he himself had brought. in law, also, is his assumption proved to be without foundation, which places on an equality [first] vengeance taken immediately, that is, in the very act of taking the wife in adultery, or in acts immediately preparatory, which lead him to such a legitimate belief; and [secondly] vengeance taken after an interval, even when the adultery is evident from such proofs as render it perfectly clear. there are many authorities who urge the diminution of the penalty for the following reason which they give--that the sense of injured honour always keeps urging and provoking to vengeance, and that a wife may be well enough said to be taken in adultery, when she has either confessed it or been convicted of it. and these authorities have been collected with a full hand by his honour, and i myself recently pointed out one of them. but the contrary opinion is the true one, and is accepted in practice. to this fact the most distinguished and most skilful practitioners of our time in criminal law bear witness. these are [first] farinacci, where, after he has first learnedly answered the reasons and authorities adduced to the contrary, he concludes that he undoubtedly believes so as to the law in the case, and counsels that it be so held, unless we wish to err; and [second] canon rainaldi, who also filled the office of procurator of the poor with the highest praise, and so it may well be believed that he was very strongly inclined toward mercy and commiseration, and that he therefore adhered to this opinion in the mere zeal for the truth. and he declared it to be the truer and the more advantageous to the state, and said that one should not depart from it in giving judgment. [citations.] but even if the conflict of authorities might in some manner favour the diminishing of the penalty for the accused, if there had been excess merely in the matter of time; yet he is still to be considered as inexcusable, so that he cannot escape the ordinary penalty, since so many qualifying circumstances are present which increase the crime; and any one of these is punishable with death. to this end we should first consider the assembling of armed men, which is so very injurious to the public peace, and constitutes the crime of "conventicle." in the banns, chapter 82, this is punishable with the death of its author. it is also declared that it is enough to establish this crime if four armed men are assembled. this had been formerly prohibited under the same penalty by the seventy-fifth constitution of sixtus v. of blessed memory, which had raised it to the crime of rebellion, for whatever reason it might be done. spada proves this fully, asserting that it should generally be so understood in all cases in which the assembling of men has been prohibited. to escape or evade this capital penalty, it is not a relevant excuse that a husband may kill an adulterous wife by armed men brought together. for, however it may be when a husband wishes to kill his wife taken in adultery, and is afraid that the armed adulterer can resist him, and that he may have servants for his aid (in which case he himself cannot take vengeance otherwise than by calling together helpers, as caballus advises), yet in the case of vengeance taken after an interval, and while the wife is under the power of the judge, and on the mere suspicion of adultery, such convocation of armed men cannot be said to be at all permissible. for the seventy-fifth constitution of sixtus v. of blessed memory, prohibits such assembling even on lawful occasion, as a disturbance of the public peace. [citation.] and so it is much more to be prohibited and much the rather to be expiated with the ordinary penalty both of the constitution and of the banns, since it was made for an illegal and damnable end, namely to kill his wife, and his father-in-law and mother-in-law along with her. this is rendered plain by the assertion of the very authorities who excuse from the ordinary penalty a husband who takes vengeance after an interval. and indeed the path of private vengeance, which is hateful to the law, would be strewn all too broadly if, after the husband had chosen legal vengeance and had neglected to avenge his pretended injury in the act of seizing his wife in flight with the pretended lover, he should be excusable in taking vengeance after an interval with all security, by means of armed men, and in killing her while entirely off her guard, and under the power of the judge, without the slightest risk to himself. this is true in spite of the response which might favour him, that he neglected to take private vengeance because he was unarmed, and the wife was found in the company of the canon, who was a bold, sturdy man. the husband should impute it to himself if alone and unarmed he was pursuing his wife, fleeing with the lover. for then he could take associates with better right, and fully armed could pursue her; and in such a case his assembling of men would be somewhat excusable. but this is not so when he takes such awful vengeance after an interval. for if we consider the reason why a husband killing an adulterer or his wife is punished with a milder penalty according to the quality of the persons, if the vengeance follow in the very act--namely, rash anger, which cannot be restrained--the assembling of armed men to do that after an interval is plainly revealed to be illegal. for rash anger would cause him to expose himself to the risk of resistance by the adulterer, who is not accustomed to approach unarmed. because of this risk the penalty is diminished, since it shows that the husband carelessly exposed himself thereto, because of the violence of the anger which blinded him. this is [not] the case in vengeance taken after an interval, taken with all forethought and by means of armed men, so that the husband cannot be afraid that any evil will befall himself in carrying it out. such preparation is quite repugnant to rash anger, which cannot be restrained, and from which excuse is drawn. [citation.] the second qualification that increases the crime results from the kind of arms with which the murder was committed, for these were prohibited by the well-known decree of alexander viii. of sacred memory. this was not merely for the carrying, but even for the keeping, introduction, or manufacture of them for any cause whatever, even under the pretext of military service or the execution of justice. hence they would be all the more prohibited [when carried] for the purpose of taking such impious and awful vengeance by the destruction of an entire family. nor is the carrying of arms in such a case to be confused with the main crime of murder; because when a greater penalty might be imposed for the former, as when excuse for the killing is drawn from injured honour, the carrying of the prohibited arms comes to be punished with the ordinary penalty. [citations.] nor are the authorities adduced to the contrary worthy of attention, for they hold good in the circumstance of murder done in self-defence or because of provocation in a quarrel. [citation.] still further, these are not applicable because they do not speak within the bounds of the constitution, which so distinctly prohibits such arms. for policardus speaks of the _regula pragmatica_ which takes for granted the qualifying circumstance of the crime of treachery from the kind of arms, and he asserts that this order ceases in murder for self-defence, or on provocation in a quarrel, when committed with the said arms. but this judgment differs by the whole heaven from the sanction of our constitution; because the latter was issued for the very purpose of entirely exterminating so pernicious a kind of arms. the third qualification likewise increasing the crime is murder committed because of a lawsuit; for by the well-known decree of alexander vii. of blessed memory, this was increased to the crime of rebellion and _lã¦sa majestas_, punishable with death and the confiscation of goods. this qualifying circumstance as regards the slaughter of pietro and violante cannot be denied; because the accused had won a victory in the lawsuit. and hence the offence should [not] be said to have been committed because of just anger for injury inflicted upon him; [first] by the pretence of birth, which was revealed after the marriage had been celebrated, in order that they might break the marriage contract; [second] by the publication of pamphlets greatly to his injury; and [third] by their conspiracy in the flight of his wife to the injury of the honour of the accused and of his entire family. they claim that since this cause for avenging the injury is graver than that arising from the lawsuit, the murder should be attributed to it, as more proportionate thereto. but the victory he obtained had regard only to the actual possession of the property while the lawsuit was under appeal. and the parents were still pursuing this suit, so that that cause continued and could not be said to be extinct. the injury, indeed, from whatever different causes it may be claimed to have arisen, really came from this same lawsuit. and this had regard both to the pretence of birth revealed, and to the insults contained in those pamphlets concerning the meagreness of the family affairs (which was quite the contrary of the boasted riches, in the hope of which the marriage had been made), and concerning the ill-treatment which the parents of the wife had suffered in the home of the accused. for by this marriage agreement food was to be furnished them. still further, as to any conspiracy in her flight, much less as to any complicity in her pretended adultery, we have no proof at all. and so the cause of hatred conceived because of the lawsuit kept always urging him, and it does not redeem the criminal from the penalty inflicted by the decree of alexander, because the suit might have been injurious to the accused, either in his substance or in the manner. for this indeed presents such a cause as is always required in premeditated murders. nor does it exclude the qualifying circumstance of the lawsuit, and indeed confirms it; since it is explicitly presupposed that injustice had been committed. otherwise an opportunity to take private vengeance would be permitted, which in all law is forbidden, especially when a lawsuit is going on; because then the majesty of the prince is insulted, as was proved in my other information, ⧠_accedit ad exasperandum_. the fourth and, indeed, a very grave qualifying circumstance is drawn from the place in which the crime was committed, namely in the home of those slain. it was also in an insidious manner, by pretending the delivery of a letter sent by canon caponsacchi. for one's home should be the safest of refuges to himself, as was proved in our other information, ⧠_plurimum quoque_. the manner indeed savours of treachery, as is proved not merely by committing murder under the show of friendship, but also at a time when the power and obligation of special caution in the one slain had ceased. [citation.] and this is far from doubtful in our case, for the wretched parents could have had no such apprehension from the accused, who was staying in his own country. to these is added a fifth very grave qualifying circumstance, drawn from the place with respect to the very wretched wife. for she had been imprisoned at the instance of the accused, and was detained in the home of her parents as a prison with the consent of the abate, his brother; and hence she was under public safekeeping, which it were wrong for the accused to violate without incurring the penalty of _lã¦sa majestas_. [citation.] this very grave qualifying circumstance, which increases the crime, cannot be avoided by the dual response given by his honour; first, that we are dealing with no prison properly speaking; second, that one giving offence, or killing in prison, is excused on a just plea of injured honour. neither of these excludes this qualifying crime; for the unsuitability of a prison would be considerable if we could defend a violation of it made by one in prison and so to avoid his own injury, but if it were otherwise when we were arguing in his favour for avenging an injury to himself in a home assigned as a prison. the plea of injured honour can help one only if the offence in prison follow in self-defence under the very impulse of rash anger. in such circumstances the authorities adduced by his honour would hold good. but this is not so in excusing vengeance taken after an interval upon one imprisoned even at the instance of the slayer. for then the qualifying circumstance of the place greatly aggravates the crime, as it is indeed injurious to the public safekeeping and involves treachery, etc. it is therefore very evident that the murders committed by the accused have many qualifications mingled with them, which greatly magnify them. and however far the opinion has weight, which urges the diminution of punishment for one killing an adulteress after an interval, and however much the pretended adultery may be declared to have been proved in the manner required to gain such diminution, even by all those in favour of the milder judgment, still this penalty, because of these qualifications, would have to be increased and the ordinary penalty of the _lex cornelia de sicariis_ in its entirety would have to be demanded. and therefore it seems superfluous to argue about the kind of torture, since in view of these very urgent proofs, of which i understand there is no doubt, and in view of the well-known powers granted to the most illustrious governor, it is quite within limits that the crime should be punished with the ordinary penalty, even if the qualifying circumstance of special atrocity were not present, so that the penalty should not be increased on that account. but such a qualifying circumstance is not wanting here, as it results indeed from the treacherous manner and from the charge of _lã¦sa majestas_, which is provable in our case on three grounds; namely offence committed during a lawsuit, the assembling of armed men, and the violation of public safekeeping, because of the home assigned as a prison. for according to the apostolic constitutions, the crime would be raised to that degree upon the basis of the first and the second; and there should be no doubt as to the power of the prince to do so. [citation.] spada asserts that in such a case, so far as all the effects of law are concerned, it should not be considered a matter of controversy that the qualification of special atrocity, which is in agreement with such a crime, is to be revoked. and in our very circumstances spada gives this opinion in demanding the torment of the vigil. nor can that qualifying circumstance of the person concerned, so far as it is proved, stand in the way of such infliction of the torment of the vigil, which does not allow the death penalty upon a nobleman to be made worse, as is accustomed to happen in very atrocious crimes (because noble blood should not be degraded by such increase of penalty which adds infamy). but for this purpose merely the nature of the crime is considered, and not the quality of the person, which would hinder the execution of a penalty carrying with it such infamy. otherwise the torture of the vigil never could be inflicted upon noblemen, priests, and men in religious office upon whom an infamous penalty cannot be inflicted. but nobility affords no privilege in the manner of torment, especially in very atrocious crimes [citation], etc. giovanni battista bottini, _advocate of the fisc and of the apostolic chamber_. response _to the account of the fact, and grounds in the franceschini case._ [pamphlet 15.] the splendid statue of nebuchadnezzar fell because it was not firm on its feet. so fall to ground those imagined and forced suppositions concerning the origin of the present execrable murder, which the anonymous writer in his printed pages [pamphlet 10] has tried to insinuate into the dull heads of the crowd. this murder was committed here in rome upon three wretched and innocent persons, by guido franceschini, assisted by four men who were armed with prohibited arms, who were brought together for that purpose by the influence of money, and who were kept insidiously for many days at his expense. [these pages claim that] the crime arose from justly conceived anger: [first] because eight months earlier guido had discovered francesca pompilia, his wife, sinning against him in his own house at arezzo, and [then] because she had fled in company with canon caponsacchi of the same city back to rome to place herself again under the protection of pietro and violante comparini, who had raised her as their daughter; and [thirdly] that the suspicion had also grown upon guido that in her precipitate journey she might have broken with the canon her marriage obligations, since certain love-letters were found upon her, from which he unreasonably deduced her adultery, and he supposed that the said caponsacchi was condemned as an adulterer to a three years' banishment at civita vecchia. and these pages try, under the pretence of injured honour, to render guido's crime less grave and to excite compassion, no less in foolish persons than in the hearts of our most religious judges, for the purpose of disposing them toward a milder penalty and one out of keeping, according to the laws, with the quality, form, and circumstances of this crime. and this in substance is all that is claimed by the author of the pamphlet entitled _notizie di fatto, e di ragione nella causa franceschini_. but they are indeed very much at fault in their account of that tragic history, which had a different beginning and an occasion independent of the imagined ground of honour. in that pamphlet it was presupposed all too bitterly, that guido's honour had been injured by his wife; whereas she always preserved her sense of shame and had well observed the laws of conjugal honour, as is plainly shown in this present article. that this sad catastrophe, this slaughter of an entire family, did not proceed (as the anonymous author claims in his pages) from the pretended sense of injured honour, but from damnable greed, one can very clearly see by considering the fact that for this very object the unfortunate marriage with francesca pompilia was entered into by franceschini. for it was taken for granted that after the death of her supposed parents she would surely fall heir to a considerable property. all the more ought we believe that the crime was committed because of hatred arising from the three lawsuits then pending; that is, two in the civil courts and a third in the criminal courts. one of these was as to the legitimacy of the parentage of francesca pompilia, the wife, and the nullification of the dowry-agreement, and was brought by pietro in the tribunal of the sacred rota. the second suit was for divorce, and was brought by the said francesca pompilia before the vice-governor. the third is a criminal suit, as to the pretended adultery, which is still pending in the tribunal of his excellency the governor; this latter was brought under the very impulse of greed, to gain the entire dowry. since this fact was conclusively evident in the case introduced by the said franceschini, he was deceived in this hope of gain by the failure of the proofs, which the defence caused to vanish utterly, as they could do by means of the wife. hence he broke into an excess so tragic and so deplorable as to reveal clearly the tricks and frauds practised for the purpose of bringing about that marriage. here then are the plain proofs that this is the truth. guido franceschini was staying at rome in idleness, out of the service of a certain cardinal, without a soldo, by which service he had provided for himself up to that time. his usual loafing-place was in the shop of certain women-hairdressers, where he often announced his intention of setting up his house with some good dowry. he also boasted of the grandeur of his country, his birth, and his property. by his promises he induced this woman to find him a chance for such a marriage, and she informed him of the opportunity in the said francesca pompilia. the latter was then esteemed to be the true and legitimate daughter of pietro and violante comparini. he set about this enterprise with the aid of his brother, abate paolo, using the astute prudence with which the malign serpent advanced his designs in paradise to subvert adam into disobeying god's precept and into eating the forbidden fruit; for [satan] considered the matter in this way: "if i wish to assault the man directly, who is so strong and so resolute, he will turn and give me a sure repulse. it is therefore better that i first tempt the woman, who is of a fickle nature and soft-hearted." and he made his first attack upon eve; because when he had gained his point that he might have her, by her means it would be easier for him to win over adam. "for he first attacked the mind of the weaker sex," are the ingenious words of st. hilary. and so for this purpose did the said guido devise the marriage with the knowledge of his brother, abate paolo, and likewise to this point he succeeded in it. for he avoided talking with signor pietro about the marriage, by whom it would probably have been refused, and wished first to tempt violante, his wife. because by gaining her he would the more easily overpersuade her husband to give his consent. nor was it difficult for him to astound the woman, because he knew how to impress her very well with the thought of the grandeur of his country, of the first-rate nobility of his birth, and of the great income from his patrimony, amounting to 1700 scudi. and he gave her an itemised account of it written with his own hand. she was enchanted thereby and, without getting any further information about the matter, she was able to persuade her husband and to extract from him his consent to it. this proves what we read written in proverbs: "a wife takes captive the soul of her husband." he speaks this of mordecai who availed himself of esther, when he wished to placate the anger of ahasuerus against his people; of joab, who used the services of the woman of tekoah when he wished to soften the anger of david against his son; and of the philistines of timnath, when they wished to gain from samson the secret of the riddle proposed to them at the marriage feast. the credulous but deceived woman so cajoled her husband that she at last induced him to sign the marriage agreement providing for a dowry of 26 bonds and, at the death of the said comparini, for all their possession, amounting, as the anonymous writer acknowledges, to the sum of 12,000 scudi. and, for the purpose of making the said franceschini guardians of the said property even during the life of the comparini, they had to give up even the income of it. this property consisted of numbers of profitable and well-situated houses, and of bonds. the franceschini also assumed the obligation to take the said comparini to the city of arezzo, and there to feed, clothe, and provide them such service as they would need. this promise was made not without the hope that on account of the insults and sufferings which they would have to bear their death would be hastened. and thus guido would become the absolute master of their property. after having signed the said agreement pietro absolutely refused to go on with the effectuation of the marriage of the said francesca pompilia, with the abovesaid guido, of whom he had had few good reports; and these were far different from the pretended riches and vaunted nobility. hence one may well say of him what persius concludes in his fourth satire: "see what has no real existence; let the rabble carry off their presents elsewhere. dwell with yourself, and you will know how meagre your furnishing may be." at any rate, the said guido joined the said violante, whom he had imbued with his flatteries and endearments, spurning any further consent of pietro by keeping him in ignorance of it. and without the knowledge of the latter, guido contracted the marriage with the said francesca pompilia in the face of the church. and he evermore discloses by this act, which shows so little reverence to the promiser of the dowry, his own greed, not merely for the amount which had been assigned to him in the marriage agreement, but also for the rest of pietro's property. for he felt sure that after pietro's death the property, by the entail of the ancestors, would necessarily fall to the said francesca pompilia, who was already his wife. when, after a few days, pietro found out that the marriage had taken place, though he reproved the deed vigorously, yet because what is done cannot be undone, and by means of the cajoleries of violante his wife, and the interposition of another cardinal, whom the abate, guido's brother, served, the poor old fellow was constrained to drink the cup of his bitterness. and he came, as it were by force, after many months to the stipulations of the dowry agreement. he quickly began to feel the effects of franceschini's trick, since guido had scarcely a single soldo of his own to pay the first expenses of that marriage agreement. hence, to supply these, he was obliged, against the wish of pietro, to free from entail five of the bonds, or more, by the authority of the auditor of the most illustrious governor, and to sell them for meeting these expenses. hence one may see clearly that the primary object of franceschini in this proceeding was to trick pietro, and violante his wife, and their poor child, to enrich himself with the property of others. he can no longer deny the fraudulent pretence of vaunted riches of the franceschini in the note written in his own hand and given to the comparini. and indeed the anonymous writer confesses it openly. for, in order to free abate paolo from complicity in that trick, the latter pretended that he took guido his brother to task roundly for the alteration of the said note. the said comparini very quickly found this out. for as soon as they had gone to arezzo they learned that the property of the franceschini family was very slight. and such were the miseries and abuses that the comparini had to suffer in victuals and in harsh treatment that they were obliged to return to rome after a few months; for they were locked out of the home and had to go to the tavern to lodge; and these abuses were for the purpose of shortening their lives, either by their sufferings, or the fury caused thereby. and this fact is very evidently proved by the rent-rolls taken from the public records of the city of arezzo. from these it is shown that the said guido did not possess a single dollar's worth of the settled property mentioned in the said note. it is also untrue that he and his family enjoyed the highest rank of nobility in the city, because, from other extracts drawn from the public records of the city, it is evident that his family is of only secondary rank. the abovesaid crafty and fraudulent methods of dealing, which came to light long before the murder had followed, and which became known in this court and in arezzo, can well show that greed was the origin of this premeditated slaughter (which was put in execution in such a horrible manner, as is notorious) and not the pretended ground of injured honour. for, according to common opinion, abate paolo, no less than guido his brother, had worked the tricks exposed as above. and by men they were suspected of subterfuge and craft, so that this made them more sensible of injury than anything else. hence they could no longer boast the grandeur of their nobility and the affluence of their riches, which they had spread abroad on the lips of the crowd. and every one avoided having anything to do with them, as persons of bad faith and as usurping a glory to which they had no real right. the greediness of this self-interest became greatly inflamed; so that in these franceschini brethren one may see the common axiom verified: "craft is deluded by craft." that is to say, violante was urged on by remorse of conscience and by the abuses and injuries received in their house, and was constrained by her confessor at the time of the jubilee to reveal to pietro, her husband, that the said francesca pompilia was not their daughter, but was of a false birth. and this seems very probable in view of the age of 48, which violante had reached, when she pretended to be pregnant with her; because in the fourteen years, during which she had lived in lawful matrimony with pietro, she had never had children. also, by witnesses then living, she could afford conclusive proof of the pretence of the birth. and when notice of that had been given to abate paolo, that he might come to some compromise over the annulling of the dowry contract for the entire patrimonial property, he spurned the kind offers made to him through the meditation of friendly persons and refused every means of peace. then a warning (as to the falsity of the said birth and the illegality of the dowry contract) was served on him by pietro before monsignor tomati. and conclusive proof of the birth was given by six witnesses, who were examined before the judge with questions offered in behalf of the said franceschini. yet the same judge saw best to forward the case during the mere immediate possession, by continuing to the said francesca pompilia the quasi-possession of her parenthood. nevertheless, an appeal was taken from his sentence, and it was committed to the sacred rota, before monsignor molines, where it still hangs undecided as to the principal point of the pretended parentage and the nullity of the dowry contract. for righteous judgment in such a tribunal the judge doubtless awaited for conclusive proofs of the said pretence of birth. the nullity of the dowry contract would none the less be decided, because it had made declaration that the said francesca pompilia was their daughter. and with this falsehood the advantage which the franceschini had obtained for their own selfish gain by such tricks would cease. all this is proved by the reflection that the trick of franceschini was made public, not merely in rome, but in arezzo, and that he also was deluded by a similar artifice because of the proofs already made, while judgment was pending, that the said francesca pompilia was not the real and legitimate daughter of the said comparini. on the ground of these far-fetched suspicions guido made pretence of a reason for maltreating her with insults and blows, and more than once he provided himself with a sword and fire-arms to take her life. he did this to take vengeance upon her for his own trick, by which he had been deluded. therefore it was quite right for the poor wife, who was of the tender age of sixteen years and a stranger in the place, to avoid the rage of her husband at different times by fleeing for protection to monsignor the bishop, and to the governor, or commissioner of the city, that they might put some check upon the cruelties she was suffering. and although these persons by their interest in the matter succeeded for the time in putting a stop to the threats, yet the poor intimidated wife always passed her days shut in a room. and her fear was greatly increased because she saw that the said guido had made a mixture of poison, with which he threatened he would take her life without the uproar attendant on the use of arms; and thus he would be the surer of his crime going unpunished. now if, even at a time when no shadow of suspicion of dishonour had fallen, the husband was contriving the death of his wife, the anonymous writer might well abstain from soiling his pages for the purpose of proving that the slaughter of those murdered had had its origin in the impulse to repair offended honour. for his pages would have had much better foundation if he had consulted the truth, namely that these crimes had arisen from deluded self-interest. the poor wife in her agitation over these difficulties that we have told, had nothing else to do but think of finding refuge from the death she feared. and when her mind was somewhat sharpened by its vexations, she intrusted herself to the canon conti, who is closely related to the franceschini, and declared to him her miseries, her perils, and her just fears (although they were not unknown to him), in order that he might try to give her consolation by placing her life in safety. he was touched with living compassion and was moved to free her therefrom by pity for the grievous state in which she was. and he well knew that there was no other escape than flight from the home of her husband, according to the saying of the poet [virg. a. iii. 44]: "alas, flee the cruel earth, flee the greedy shore." but not being able to give her aid in this affair, he suggested to her that for putting the matter into execution, there was no better person to the purpose than canon giuseppe caponsacchi, his friend and intimate, whose spirit had stood every test. and when conti had spoken of it to him, although caponsacchi saw difficulty in aiding the desire of the young woman, because he did not wish to incur the anger of the franceschini, yet at last the impulse of charity and pity prevailed upon him to free this innocent woman from death. and when his readiness for the attempt was reported to her by conti, she did not fail to inflame him with more messages and letters, even containing alluring endearments, for the effecting of her escape. yet she also kept during all this time her constant desire of not violating her marriage-vow, since in some of these letters she praises the canon for his chastity, and in others reproves him for having sent her some rather improper octaves. she also warned him against degenerating from the good behaviour, on which she had congratulated herself and had planned with him the flight. while her husband and the whole household were asleep, both of them, with the assistance of the canon conti, set out upon a headlong journey by post, without losing a moment's time, except for changing horses; and they arrived by night at castelnuovo. and although the host had prepared a bed for rest, nevertheless they did not avail themselves of it. for caponsacchi was always solicitously watching to see that the driver prepared other horses, to continue the journey to its end. nor did the host of that tavern, when cross-examined in the prosecution for flight, ever dream of bearing witness that the wife and caponsacchi had slept together in the bed that was prepared, even though franceschini, to his own dishonour, had published the contrary, that he might, by the pretence of injured honour, throw a false light upon the true grounds of the murders committed by him. in the meantime her husband arrived. when his wife saw him, did she, timid as she was, shrink back? did she acknowledge herself guilty of any sin, or of any wrong done to him in guarding her purity and modesty? no! but all on fire, though she was at the tender age of sixteen years, as i have already said, the constancy of her own honour rebuked him for the tricks and abuses which he had employed, and for the threats and blows he had very often given her, and for the poisonous drugs he had prepared to take her life. and [she declared] that she had been obliged to do as she had done, to find an escape by flight from graver peril, and to return to the parental love of the comparini, who had raised her as their daughter; and that she had always been careful to keep her wifely honour intact. the same rebuke was made by caponsacchi, who during the flight had religiously observed the limits of due modesty. what did franceschini answer? what did he try to do, although he was armed with a sword against his defenceless wife and against caponsacchi, who had with him only a little dagger? nothing, indeed! according to what the witnesses who were present deposed; because he stood convicted by the just remonstrances of his wife. but what did he do? he gave up all vengeance, which by right of natural law, or much more by civil law, he might have taken for that; and, as the anonymous writer goes on to boast in justifying him for this execrable crime, he implored the arm of the law and had his wife and caponsacchi arrested by the authorities of the place. and at his own instance they were conducted as prisoners to the prisons of the most illustrious governor of rome, before whom guido charged them with flight. then, not content with this, he brought forward that other charge of supposed adultery committed with the said caponsacchi. he also outdid himself greatly by making noisy petition to the supreme pontiff for their punishment, and the latter sent back his entreaties to monsignor the governor. he was brazen enough to demand, with a new complaint, that his wife should be declared an adulteress and that to him, according to law, should pass all the gain of the dowry. this in substance clearly proves that he did not insist on vengeance for the reparation of his honour, which he himself had passed by, but he did all this for the sole object of gain, that is to win the dowry. what efforts, what exclamations, what diligence did franceschini and abate paolo, his brother, not use to have the wife declared an adulteress and to gain the desired lucre? monsignor the most illustrious governor knows it, who endured with all forbearance their passionate pressure upon him. signor venturini, judge in the case, knows it. and all the other judges and notaries of the court, who were nauseated by their importunity, know this very well. then since judgment could not in any event fall according to the designs of the franceschini, as there was no proof in the trial of any offence, either in the wife or in the said caponsacchi, the most religious judges, who in prudence were judging rigorously (for the purpose of giving some satisfaction to the franceschini brothers in their strong insistence, rather than because of the obligations of justice), banished the said caponsacchi to civita vecchia for three years. caponsacchi straightway obeyed this sentence, and has never left the place assigned him. the case was left undecided as regards the wife, who was placed in the nunnery of the scalette as a prison. then when there was some question as to her pregnancy, with equal prudence, she was removed from the nunnery by the order of the most illustrious governor; for it was not decorous that she should give birth to a child there. and with the consent of the said abate paolo she was placed in the home of the said comparini under security of 300 scudi to keep it as a secure prison. on this point the anonymous writer disputes too bitterly what was written learnedly by the fisc, and claims that the consent of the said abate paolo had not been given. but the great and incorruptible integrity of the fisc is known to every one; because of which he would be unwilling to give his word in writing for what was not evident on the surest proof. yet the fact of abate paolo's consent is plainly proved, since he in person so agreed with monsignor the most illustrious governor and with signor venturini, the judge, jointly. and he exacted from pietro comparini the obligation to supply her with food without any hope of recompense. and this was so carried out, although the quality of the comparini did not deserve so indecent a rebuke on account of having been too indulgent with them. with like bitterness it is denied that the said abate paolo had power of attorney from guido, his brother, enough to give such consent; because, in making such a provision, monsignor the governor had no need of the consent of the parties. and, even if he had wished to show abate paolo such courtesy and urbanity, the author should not reply thereto with such incivility, in criticising the judge for having done wrong because of the lack of that power of attorney. for by such procedure [abate paolo] proves that he wished to trick also monsignor the governor into consenting to a thing beyond his power. and he rests convicted of this, because the said abate paolo was the manipulator of all they did, nor was a straw moved without his assistance. and he was well provided with abundant power of attorney by his brother, wherefrom he had the fullest authority to do as if he were the very person of his brother, with a proviso of after confirmation, the efficacy of which every one knows. and this is confessed even by the anonymous author, since he asserts that guido at his departure left the entire conduct of his case to the abate, his brother. but one may well see with what object he denies the said consent, that is, in order that he may more bitterly make pretence of the complicity of the comparini in the pretended dishonesty of francesca, who had been guarded by them as a daughter. this would seem very improbable if he should once admit the consent of the abate. no less rancorous is the assertion made by the anonymous writer that lamparelli laid out the money to provide pompilia with food while she was in safekeeping. nor was lamparelli reimbursed by the deposit in the office, which had come from the money found on her and on caponsacchi, when they were arrested at castelnuovo, which was supposed to have been stolen from the husband. but the 48 scudi, which the wife confessed to have taken away from him, were fully restored to the said abate paolo, as is proved by his receipt, made during the trial. the rest of the money was conclusively proved to belong to caponsacchi. and as soon as abate paolo received the money, for which he continually clamoured, he left rome to take part in the planning of that notorious murder, which followed a little while later. but there had previously been given notice, at the instance of francesca pompilia before monsignor the vice-governor, of a suit for divorce and for the recovery of the dowry, which had been spent. this was very bitter to the franceschini, because in that lawsuit conclusive proof would be made of their subterfuges, their cruelties, their threats of poisonous drugs that had been prepared; of which the canon conti, who was the mediator in that flight, had not been ignorant. and it is public talk and report throughout arezzo that he died about a month ago under similar suspicious circumstances. hereby ceased all hope, which the franceschini had had from the beginning, of gaining the entire property of the comparini. and from this, every sane mind may see and know what is the true root of such rash and pitiable murders; whether it is injured honour, or scandalous and detestable greed and cupidity. from this arose the hatred in the lawsuits brought and still undecided, which drew even greater dishonour upon the said franceschini, and when decided would be for their ruin. in vain therefore this anonymous writer and his other defenders wear themselves out in exaggerating the plea of injured honour. for then that which had no true existence would have been taken from guido by his wife. this was fully proved in the arguments made for the fisc, in answering those letters, from which guido drew his strongest proof. on the contrary, franceschini has by his own deed renounced all right to repair his honour, since he did not avenge it at the time of overtaking her in the said inn of castelnuovo. nor does his excuse really help him--that he was unarmed, because he had with him indeed a sword, and possibly other concealed arms. for it is not probable that he would have been willing to go on following his wife accompanied by caponsacchi, without being provided with arms. and this all the more because the fugitives also were unarmed and were provided merely with a little dagger. but guido preferred to choose the judicial road and had them arrested by the police, and he demanded that the charge against them be pushed through to their punishment, even imploring the rescript of the supreme pontiff. he also laid his entreaties again before the judges in the case (this very well discloses his purpose, which was the unconquerable motive of all his acts) and made special insistence before them for the payment of the price of the honour, which he pretended had been taken from him. and would he not even have had his wife declared an adulteress for the sake of gaining the dowry? if then he has, as one may say, demanded the price of his honour in the courts, how can he be permitted to commit such awful murders for honour's sake? for whenever a husband is permitted by reason of natural law, or even by the civil law, to kill his wife for honour's sake, this power and faculty ceases whenever the husband has renounced it by imploring, as above, the arm of the law. and these complaints that he made, and his recourse to the pope, show the price he put upon his honour. and with these judicial proceedings he lost, without doubt, his right of private vengeance for his injured honour, which he might have carried out. and by this one tacit renunciation, this right is extinct. [citation.] for the writer cannot claim that the judicial action brought by franceschini would not effect the renunciation of private vengeance for his honour, but that he could still employ the one or the other, and avail himself of whichever might seem better to him. for this is contrary to the text [citation] which is stated as follows by the celebrated canonist, giovanni andrea: "a choice cannot gain both alternatives in seeking confirmation therefrom; even if the one is claimed to include that by which the man can attain the end of his intention. therefore a man must choose one, and when it is chosen he cannot turn to the other." and still clearer are the following words of the same authority: "the right to return to a second alternative shall not at all be allowed, when one seems to have renounced to choose the first and to profess that his rights cannot arise therefrom." but although this exception from every miscarried law might be judged permissible, every foundation of it would be destroyed by the utter lack of proof of an offence received in his honour; for there was no proof of it in the prosecution for flight. the anonymous writer strives to deduce that from the pretended love-letters written to caponsacchi, which were denied by francesca and were not proved to be her handwriting, either by her own acknowledgment or by her signature. one cannot claim that she was convicted of it, nor that any legitimate proof of it resulted, as all judicial practice shows. and even if without reason we were obliged to acknowledge that they were written by her, would it not be too bitter and too unreasonable an inference that from them arose the husband's motive for killing her because she had written them? no one of sound mind will be persuaded to pity the husband who has gone on to kill his wife for the sole reason that she had written love-letters. for conjugal honour is offended neither by note, nor by pen, but only by acts of impure dishonour; and of this, in our case, every shadow of proof is lacking. this is all the more true because the mere suspicion of dishonour ceases with a thought of the true motive, for which the letters were written; namely, by pretended demonstration of affection to allure this caponsacchi to rescue her from imminent peril of death. nor from this could she find any other escape than by flight; for she was always terrorised by the anger and hatred conceived by her husband for feigned reasons. and therefore, as the love-letters arose from that occasion they ought to be referred to it, and not to a dishonourable wish to smirch her conjugal faith to her husband. to the same cause, likewise, should certain conversations be referred, which she had had from the window with the said caponsacchi in order to arrange the manner of saving her life, and not to give offence, nor to hazard her own modesty, nor the honour of her husband. even the most chaste of women have used like artifices. we find in the sacred scriptures that judith entrapped holofernes in the same way, for the purpose of winning the liberty of her native land. and so it may be no less permissible for this poor woman, who was solely intent upon the security of her life, to allure caponsacchi by amatory letters to be a safe companion for her in her flight, and this without any stigma of immodesty. much less can an offence of his honour be inferred from the flight; because, as i noted above, this flight resulted from the cause declared. and one may see clearly that it was not for doing any injury to her husband. for the fugitives did not turn aside into unknown places, but they journeyed precipitately along the consular road by post, without spending the night anywhere. and their journey was toward rome, where the poor wife hoped that the comparini, who had raised her as their daughter, would continue toward her those acts of love with which they had brought her up, even till the said marriage was contracted with franceschini. and all that is being reported that a driver testifies he had seen them kissing along the road has no legal foundation. for it rests merely on the word of a single witness of the lowest class, and he swears to matters that are quite improbable, because he had to drive the carriage with such rapidity as that with which the fugitives were following their journey. hence it was almost impossible for him to look backward, or to see what they were doing inside of that covered carriage. and this is all the more so because his deposition is vague, nor does it specify whether the kisses were given at night or by day. but his deposition is rendered much more doubtful and improbable because, in such a swift journey as the carriage was making, it might chance during the jolting of it that the accident of their faces meeting casually would arise, and to him this might seem the act of kissing. this happens very commonly, even when one is making no such journey, according to the quality of the road and the rough ways which one finds. this makes his testimony insufficient and doubtful enough or, even further, it is audacious and incredible. then as to the other point which the anonymous writer asserts too bitterly, namely, that when they arrived at castelnuovo the innkeeper was ordered to make up only one bed for the repose of the fugitives, and that they slept together. the host however did not have the hardihood to swear, in his cross-examination, that they had slept together in it. this circumstance is excluded by the deposition of the wife as well as by that of caponsacchi. because their affidavits constantly affirm that neither of them went to bed for rest, but that merely the wife, who was worn out by the discomfort and suffering of so precipitate a journey, rested for a few hours seated in a chair; and that the bed was left arranged as the host had adjusted it; and it would have been found mussed, if they had slept in it. it is also proved that when franceschini arrived at the said place he found caponsacchi urging that the horses be harnessed for continuing the journey, and no proof is given to the contrary. nor can one justly pity franceschini for his injured honour, which had been kept intact by the fugitives. likewise the title, to which the same writer appeals--that the decree of condemnation for caponsacchi's banishment had been inflicted because of criminal knowledge, to the injury of guido's honour--has no real foundation; because this title was corrected as untrue, and not in accord with the proofs. of this fact we may have as legitimate witnesses the very governor himself, and all the judges and notaries of the tribunal who have any part in the criminal court. and if one will only give it due thought, the title of that case was placed there, just as a wine bush hangs outside the door of an inn, which very well shows that they sell wine there, but does not prove whether what they sell is good, and saleable, and agreeable. oh! by no means. for one may find the wine there to be sharp, and muddy, and of other inferior qualities. if therefore we read the documents and the proofs registered during the prosecution, by which the crime is proved, and not by the erroneous title, which cannot offer a shadow of proof for the pretended criminal commerce, there is even less suspicion of immodesty. and one can well understand that all proof was lacking during the prosecution from the mildness of the penalty inflicted, which does not at all correspond with the gravity of the crime charged. one can also see the impropriety of condemning caponsacchi as an adulterer while the cause against the wife was still pending; because she could not be condemned while undefended. but to remove every suspicion of this pretended adultery, i beg any dispassionate reader to reflect that the adultery could not have been committed in arezzo, because to the guardianship of her husband was added that of the brothers, of their common mother, of the servant, of the relatives, and of the neighbours; yea, the voluntary imprisonment of the unfortunate child, who was always shut in a small room to guard her honour. much less could adultery have been committed during the journey, as has been proved to be utterly unlikely, improbable, unproved, and far from the truth. nor could it have been committed at rome; for it is well known that pompilia was taken from castelnuovo to prison, and from there was removed to the nunnery of the scalette, and then because of her pregnancy was consigned to the said comparini, under the form of keeping their house as a prison with security of 300 scudi. caponsacchi also was staying then at his place of banishment in civita vecchia. in this fact all suspicion ceases, since the consent of abate franceschini, who is so zealous for his brother's honour, as well as his own, concurred therein. nor can one restrain himself without strong exertion when he hears such exaggeration from the anonymous writer as that caponsacchi left his prison to go in banishment to civita vecchia at a time when the wife was staying in the house of the said couple, as a prison, and that he lodged in their house. but he cannot speak a more barefaced lie than that, because caponsacchi has never been their guest, and as soon as he left the prison he went to the place of his exile; and he has faithfully observed his banishment without ever returning to rome. nor did the wife leave the nunnery before it was proved to monsignor the governor that caponsacchi was staying in civita vecchia, as was established by the authentic testimony of the chancellor of that district. the said writer, however, gives me even more room to blame his excessive boldness in stigmatising the honour of franceschini as sullied by his wife, by saying that as soon as guido had ascended the stairs in company with his fellows, armed to commit this execrable murder, he looked about upon those walls, which were all full of his insults, as if the said silent stones had known how to make contrivances of foolish thoughts to foment his inhumanity for so horrible a murder. because for this he can give no other proof than that he was writing fancifully without any foundation. for guido was indeed willingly dishonoured; because to his other dishonours he added these disgraces also, even by his own wrongdoing. for it is made very clear above that the cause for which he committed the crime was not to repair his honour, which had been injured by his wife. but it was his unmasked tricks, the hoped-for lucre, which had vanished, and the lawsuits still pending. and why can he not bring some other no less convincing proof, if honour urged franceschini thereto? and was not that honour sufficiently avenged by the death of his wife? why imbrue himself straightway with the blood of violante and pietro, who were not accomplices in the pretended dishonour? and why should he lay such plots through many days to procure the death of that kindly benefactor, because the latter had been moved by pity and had ministered to their aid in the said lawsuits? upon that one there has never fallen a suspicion prejudicial to guido's honour. for while the wife was in arezzo he was staying at rome. and when she was first married she was not fully thirteen years old, and after her flight, when she had returned to rome, we know that she continued under guard in prison, or in the nunnery, and then in the home of her parents, and at this time she was very near her confinement. hence one can conclude truly that the motive of this murder was other than that of honour, and that it was his greed, as was said, and the lawsuits, as franceschini himself confesses in his cross-examination. nor ought the declaration made by the said wife in the face of death be despised, since in the presence of many priests and persons who are quite trustworthy, even while she was constantly suffering from such severe wounds, she maintained and professed with greatest frankness that she had always lived chaste and faithful to her husband. and with a heart in fullest resignation to the divine mercy, she prayed pardon for every mistake she had committed to the disgrace of her husband. nor in such a matter is it to be presumed that the one dying lies, at the risk of the eternal safety of her soul. a person should also reflect that in this deed there occurs a special favour from the hand of the very omnipotent, who caused the wife to survive for a few days, in order that she might make clear her own innocence and throw light upon the murderers; for without this the crimes would have gone unpunished. for during the same crime franceschini had repeatedly commanded his companions to see if she were quite dead. and when they had taken her by the tresses and had lifted her from the ground where she lay, they believed she was dead; because the poor wife, by natural instinct, knew how to feign it by her relaxation, as the delinquents confessed. and this mark of divine favour all the more verifies the declaration of the wife, which has been proved by the confession of those guilty of the crime. i have left it for the last to discuss and refute what the said writer pretends concerning abate paolo. but if he had to speak the truth, he might reasonably affirm that the abate had been the whole foundation of this scandal. for he had urged guido on to the murders, and he had woven the whole plot, inasmuch as it was he who, from the beginning, wished to attain, by dint of industry and trickiness, the marriage of the said francesca pompilia. it was he who had sustained the suits, both civil and criminal, and he who, under the name of a grandee, and by boasting of their word of honour, had tried to extort a judgment by means of fine insinuations, by subterfuge, and by trickery; which was not right. it was he, who was very sensible of having been proved to be the man of guile, who had been deluded by his own trick. therefore this writer had good reason to say that the faces of others served the abate as mirrors by which to read his own evil courses, and not the lost honour of his brother. i forbear to respond to what the anonymous writer has tried to have believed to the praise of abate paolo franceschini, to excite greatly our pity; since the intention of the author of the present response is no other than to make clear the falsity of the suppositions against the honour of the poor wife and against the comparini, and to serve the cause of justice. and he leaves the judgment of it to those who have full knowledge of it. from the same consideration i pass over responding to many another impropriety, which has been advanced uselessly and without any point by the said writer. and i close my response with the example of samson, alleged by him. when he saw himself exposed to the public scoffs of the people, he gave a shove to the pillars of the palace, causing it to fall that he might die with the rest under its ruins, and might cease to be longer the scorn of that people. so lest the said franceschini may be ridiculed for his tricks, it is fitting that he and his companions pay the penalty merited by their crime. for these are pernicious to the state and to that peace and security which litigants in the courts of rome ought to enjoy, if we would maintain what the vigilance of the supreme pontiff alexander vii., and his successors, has provided. for they have published a constitution as to that, and with it banns, successively promulgated. the sacred order of such laws should be observed all the more willingly, inasmuch as guido had chosen the judicial way to vengeance, and the appeals made to the supreme pontiff, who is most eager to do what is just, were sent back to his judges. nor could guido grieve for this without some pretended injury, as is evident; hence the anonymous writer wished to ascribe it to the aggravation by which the anger of franceschini had been exasperated. this clearly shows with what intent he had broken into such detestable excesses. [file-title of pamphlet 16.] _by the most illustrious and most reverend lord governor of the city in criminal cases_: _roman murder-case._ _for count guido franceschini and his associates, prisoners, against the fisc._ _reply as to law, by the honourable advocate of the poor._ _at rome, in the type of the reverend apostolic chamber, 1698._ romana homicidiorum [pamphlet 16.] most illustrious and most reverend lord: i omit further discussion with my lord advocate of the fisc about the communication of his allegations, because the time is brief, and i have professed great reverence for him since my youth. let me also pass over the claim that when one is arguing about death inflicted by a husband upon his wife, not in the act of taking her in adultery, but after an interval, mere suspicion, however strong, is not sufficient to redeem him from the ordinary penalty of the cornelian law, but that the clearest proof of the adultery is required, as is claimed by our opponents. yet we have proved the contrary in our former argument, ⧠_quamquam ad hoc_. and dondeus, sanfelicius, and muta, who were not cited there, hold that it is quite enough if the couple be found alone in some retreat; and no. 3 says especially if the wife be beautiful. [citation.] see the word of ovid: "great is the strife of modesty with beauty, and man keeps eagerly craving it." [_heroides_, paris to helen.] so in the present case, according to the same author: "by this young and passionate man is she supposed to have been returned still a virgin?" [_heroides_, 5, 109.] at present, we are dealing with a case not merely of clearest proof, but also of notorious fact; because we have a decree of this very tribunal by which such adultery was declared. although the words of this decree have been given in the present information, ⧠_absque eo quod_, yet i wish to repeat them here, because they are so clear: "giuseppe maria caponsacchi, of arezzo, for complicity in the flight of francesca comparini, and for criminal knowledge of the same, is banished for three years to civita vecchia." but i cannot pass over what is still claimed--that this decree was revoked--because, as i have said in my information, the truth is quite the contrary; for we have only the fact that in the mandate for imprisoning the sinning canon the repetition of the whole decree, as given above, was omitted, and it was said: "for the cause, concerning which in the suit." these words are so far from showing a revocation that they rather offer confirmation of the said decree, as we have affirmed in our information, ⧠_nec verum est_. the same should be said of the like words furnished by the notary in the bond which francesca pompilia executed to keep the home of her father as a prison. this was when she was brought there from the nunnery, where she had been staying securely, on the grounds of her supposed infirmity, but i may say more truly that it was because of her pregnancy, which she wished to hide by some evil deed. [our claim is all the more true] because this pretended revocation of the decree could not be made when the other side had not been heard, as i have said in my information, ⧠_eoque magis_. likewise i cannot pass over what is said as to the canon having been condemned only to the penalty of banishment because of defect of proof of adultery. for if such proof had not existed, how could my lords judges express in the decree that they condemned him for criminal knowledge of the same francesca pompilia? it is the truth that the judges held that the said adultery was most conclusively proved, and that the said canon was convicted of the same, since in the prosecution nothing is wanting but the taking of them in the foul act; and this is not necessary to prove adultery. [citations.] the penalty to which the said canon was condemned did not indeed correspond with the said crime. as to this many replies may be made, but, because this has no connection with count guido let it also pass by. for however that may be, who can deny that count guido, on reading the said decree, which needed no comment, ought justly to be angered for the conjugal faith violated toward himself? and who can deny that he ought to be somewhat excused, if afterwards he took vengeance for such a violation? [citations.] and this is true, although he took such vengeance after an interval, as was plainly demonstrated in my said past information, ⧠_nec verum est_. for there are few authorities who hold the contrary, and therefore it would be almost heretical to doubt the truth of such an opinion. [citation.] especially since this has been accepted in almost all the tribunals in the world, particularly in that of the sacred council, which establishes the precedent for all the other tribunals of the city and of the entire ecclesiastical state. hence concioli affirms that it is almost like sacrilege to depart from this opinion. [citation.] and is it not a fine pretence to wish to exclude the plainest proofs of adultery by the word of the very wife convicted of it, and then retained in the nunnery by reason of it, as my honourable lord procurator general of the fisc has ingenuously acknowledged? for a person is not obliged to disclose his own baseness in the face of death, as we have proved in the said present information, ⧠_et quatenus_, and the ⧠following. and since she had lived badly, not to say in utter baseness, to the injury of the honour and reputation of her husband, we inflict no injury on her by wishing to presume that even in death she did not come to her right mind, according to the saying: "he who lives badly dies badly." and no one, even in death, is presumed to be a saint john the baptist, as in my information, ⧠_nec valet dici_. as therefore it remains firmly established that count guido had just cause for killing, or causing to be killed, francesca pompilia, his wife, the same must be said as to the murder of pietro and violante, the father-in-law and mother-in-law. for in the prosecution of the said francesca pompilia for flight from her husband, proof also came to light that they had conspired in that same crime, and consequently were among the causes of the injured honour and reputation of count guido. and this injury to his honour had also resulted from what they had pretended and had exposed before every one--that his wife was not their daughter, nor legitimately born, but was the daughter of a harlot. and afterward they had received her into their home when she had been declared an adulteress. for either she was their daughter, and they ought not to deny it in court, or else she was not their daughter, and they should not receive her into their home after she had been convicted of adultery. for in doing so they had, by that very act, declared that they had been and wished to be her panderers. [citations.] the confession of count guido cannot be divided from its qualification, that he had demanded the murders for honour's sake. but it ought to be accepted by the fisc along with the said qualification, as we have proved in our information, ⧠_huiusmodi enim confessio_. the authorities alleged to the contrary by my lord advocate of the fisc hold good in a qualification, extraneous to the confession itself and which is not therefore proved otherwise, and when there is argument for some extraordinary penalty, and we have admitted this in our information, ⧠_prã¦sertim_. but just as the plea of injured honour relieves count guido from the ordinary penalty for murder, so should he be excused from certain other ordinary penalties, laid in the banns and apostolic constitutions against those bearing prohibited arms or committing other crimes. for i have said, and i repeat, that the just anger which excuses him from the one crime should also excuse him from the others, since this reason is everywhere and always in his favour, that he was not of sound mind, according to what was affirmed in our information from ⧠_agnoscit fiscus_, down to ⧠_quo vero ad litem_. and just as this cause is enough to gain for count guido a diminution of the penalty, so should it be considered to be sufficient likewise to gain that favour for his fellows, who as auxiliaries cannot be punished with a greater penalty than the principal himself, according to almost innumerable authorities, and they of great name, who were alleged in my past argument, ⧠_qu㦠dicta sunt_, with the following, and in my present argument, ⧠_verum et sociis_. to this, no response has been given by the other side. this is all the easier as regards blasio agostinelli, who has not at all confessed that he killed or wounded any one, but only that he was present, as we have formerly considered the matter in our information, ⧠_quoad blasium_. and as to domenico and francesco, beside what has been deduced in favour of the others, they are foreigners, and are therefore not bound by the banns of the governor (for by these, men who live outside of the district are not bound) nor by the apostolic constitutions prohibiting the bearing of arms, as we have said in our past argument, ⧠_quae eo facilius_. this is all the more so since domenico still asserts that he is a minor, and for this purpose he was so described in the prosecution (page 304). and as regards francesco, beside the abovesaid description in the same prosecution (page 35), we have the baptismal register, which conclusively proves his age. [citations.] for he was born the 14th day of february, 1674, from which it is evident that at the time of the commission of the crime, which is to be had in regard for punishment [citations], he had not completed the twenty-fourth year of his age. and to one less than twenty-five years old the penalty should be diminished, etc. [citations.] and this indeed is of necessity, and not at the discretion of the judge, because such diminution of penalty arises by advantage of law that has been passed and from intrinsic reason, diminishing the penalty. [citations.] although there are not lacking some authorities who think the contrary, namely that it all depends upon the discretion of the judge, yet our opinion is the truer and the more generally accepted in criminal causes which are not very atrocious. [citations.] and when the crime is merely savage, or more savage, the judge is obliged by the very necessity of his duty to diminish the penalty, according to those authorities recently alleged. [citations.] this opinion also has a place in the crime of murder, notwithstanding the order of the text. [citations.] "if any one should make you a defendant under the cornelian law, it is suitable that your innocence shall defend and purge itself by your minority." for the order of this text should be interpreted thus, namely, that a delinquent who is a minor is not to be excused entirely, but is only to be punished more mildly, according to the old authorities who are cited with abundant hand by farinacci. [citations.] this is especially so when, as in the present case, the delinquent minor does not sin alone, but in company with others; for then he is presumed to be seduced by them, and therefore the ordinary penalty comes to be diminished the more readily for him. [citations.] we do not know whither the fisc pretends to turn for the destruction of these foundations in law, because my honourable lords, the counsellors of the fisc, have claimed nothing as to this matter, either in their past argument or the present one. for when they claim to escape our exception by the florentine statute [citation], that a minor of sixteen years is punished criminally, other responses are at hand: first, that the provision of this statute does not extend to crimes committed outside of the territory of the said state, but that the place of the crime and its statutes should be attended. then these indeed cease, as they do in the present case, because the banns of the governor have no place when there is argument for the punishment of a foreigner. this fact arises from defect of power in the prince or official establishing them, according to what was alleged in the past argument, ⧠_quae eo facilius_, and the one following. for then the criminal should be punished according to common law. [citations.] the second response is that the statute says nothing else than that a minor of sixteen years cannot be punished with the ordinary penalty of the crime. consequently it ought to hold good in our case, since we are indeed arguing about a minor exceeding sixteen years, but of one less than twenty-five years old. such a rule should be drawn from common law, in view of which the said statute in such a case receives a passive interpretation. [citations.] caballus testifies that he saw it so practised in diminishing the penalty to one less than twenty-five years, that is to one who was eighteen years old. [citations.] finally the third response, and the one that lays the axe to the root of the tree, is that the accused is not of the city of florence, nor of its territory, but of the territory of arezzo. but the city of arezzo and its dependencies are not bound by the statutes of florence; first because they are not called subjects, but vassals, of the said city of florence; and, second, because the city of arezzo has its own statutes. [citations.] for reference is had to the ruling state, when other subject states have not their own statutes; but it is otherwise, if they have them. [citations.] and so they are contrary, or incompatible. [citations.] soccinius [citation] bears witness of what manner these statutes of arezzo are, as compared with those of the city of florence, etc., and this is plain from the rubric, etc., where it is commanded that those under twenty-five years cannot be rendered liable, without certain ceremonies, as paolo di castro counsels. [citation.] for from this statute it is sufficiently evident that in the said city and its environs a less age is the rule according to common law. so far as the fisc may have foundations, which in our feeble judgment we have been unable to guess, i pray that these be kindly communicated to me, lest the poor accused minor may remain undefended. finally, as regards count guido, i pray that notice be taken of the unfortunate condition of himself and of his noble family. for all of his family and connection have had enough to lament even to the last breath of their lives, when they look upon the ignominy brought upon them by this woman and her parents. and because of this, there has been doubt up to the very present moment whether one nearly related would go mad. and the excellent piety of our most clement prince and most illustrious lord has declared this, to whom the accused himself with his whole heart commends himself in the arguments made in his defence, not to speak of what they may learn about it from the anonymous author [pamphlet 10]. [citation.] desiderio spreti, _advocate of the poor_. letter written by the honourable signor giacinto arcangeli, procurator of the poor, to monsignore francesco cencini, in florence, in which he tells him that the sentence of death had been executed in rome against the guilty on february 22, 1698--that is, that franceschini had been beheaded, and the other four hanged. [letter i.] to the illustrious signor, my most worshipful signor and patron: too late have arrived those proofs, which were sent to me by your honour, on behalf of signor guido franceschini of blessed memory. for when the congregation of monsignor the governor had determined, in spite of the reasons given in his favour, that signor guido was guilty under the death penalty, i obtained, with much trouble to myself, some delay for proving his clergyship alleged by me. to this end a messenger was dispatched to arezzo. but since the sanctity of our lord [the pope] did not deem it wise to postpone the execution of the sentence already decreed, he has seen best by special writ to make denial of any clerical privilege, which might have been claimed [in guido's favour], and also as regards the minority of francesco di pasquini, one of the accomplices. hence sentence against all five has been executed to-day, with distinction only in the manner of their death, as guido's life was ended by decapitation. this consolation survives for his relatives and friends, that he has been pitied by all men of honour and by all good men. confessing my own shortcomings, i cannot deny feeling infinite regret, as i attribute the whole outcome to my inability in offering the valid grounds. may god reward his house and all his friends with abundant blessedness for this tragic accident. desiring your further commands, i reaffirm myself, as ever, your excellency's most obedient servant, giacinto arcangeli. rome, _february 22, 1698_. to the illustrious signor, my most worshipful signor and patron, signor advocate francesco cencini, florence. letters written by signor gaspero del torto and signor carlo antonio ugolinucci to the aforesaid monsignore francesco cencini. [letter ii.] the proofs you send did not arrive in time, because to-day finally, after so many disputes, the execution of poor signor guido has taken place, he having been beheaded, while the four cut-throats have been hanged. the case was decided tuesday, but because it was a churchman who had sinned, and because it was claimed that the death-sentence was not in keeping therewith, a messenger was dispatched to arezzo later on to get proofs of it. but the pope yesterday set his hand thereto, and has decided the case, so that to-day it has so followed completely. now that the will of god has been fulfilled that he should suffer such a punishment, it has at least been brought about, in view of the arguments made in his defence, that he died the death of a gallant man. for aside from the fact that he has died with exemplary courage, he has also been pitied by all gallant men, and his house has lost nothing in the matter of reputation. all rome was there, as you may well believe. and [the mistake] cannot be made good with such speed as this may be written, because there have not been lacking admonitions of greatest consequence, since the ambassador of the emperor spoke of that point on tuesday, as he himself told me day before yesterday; and than the matter was settled precipitately. i have finished the argument before the congregation of the council, and at any time that monsignor secretary wishes to take it, i think we shall be ready. i pray you favour me with those copies of the proof as soon as possible. and if canon philippo does not give us the opportunity, he should be good enough to acknowledge it to me that i may think of other measures, wishing once for all to get out of this imbroglio if it shall be possible. and finally, i remain with all reverence, my most illustrious and most excellent signor, your humble and obedient servant, gaspero del torto. rome, _february 22, 1698_. to the most illustrious and most excellent signor, my dear signor, signor francesco cencini, florence. [letter iii.] my most illustrious and excellent signor, my most worshipful patron: tuesday this most unfortunate case was brought up and the congregation of the governor decided--delay and according to instructions. the instructions were that they would await the proofs of the well-known clericate. at this favourable decision the defence took heart and guido's good friends began to breathe again. then last evening at eight o'clock monsignor signed of his own accord the warrant, in denial of the clergyship which might be alleged and of the minority of one of the accomplices. no sooner had he signed the warrant than the news of it sped throughout the city, and with it the assurance of the sentence, which has been executed to-day since dinner against the five; that is, the loss of his head in the case of signor guido, and the gallows for the other four accomplices. i will not tell your excellency my own grief, because you yourself will be able to be a true witness of it. these proofs would have been of the greatest relevancy, but not in this case, because monsignor wished it so. i enclose the fisc's argument, except a single response, which i will send to you as soon as i can lay hands on it, that your excellency may have the entire case. now that signor advocate del corto has abandoned his own interests i may serve your excellency in the matrimonial case and in the other of gomez. therefore i set myself to all that in order that i may serve your excellency, praying evermore your continual commands, that i may ever be your excellency's obedient servant, carlo antonio ugolinucci. rome, _february 22, 1698_. [file-title of pamphlet 17.] _by the most illustrious and most reverend lord governor in criminal cases, or by the most excellent lord venturini._ _roman lawsuit._ _for the heir-beneficiary of the former francesca pompilia, formerly wife of the former guido franceschini, against the fisc and associates in the lawsuit._ _memorial of fact by the honourable procurator of the poor._ _at rome, in the type of the reverend apostolic chamber_, 1698. romana [pamphlet 17.] most illustrious and most reverend lord: in the contention most sharply and most learnedly carried on between the defenders of the poor and the fisc in the case of the murders committed by persons led by count guido franceschini against the person of francesca pompilia his wife, and pietro and violante comparini, i refuse to descend into the arena, lest i may seem to fail in the office which i discharge in common with the said defenders. my silent pity has delayed and let time slip by; because i believed it would be to the prejudice of guido and his fellows imprisoned for that offence (in whose excuse the plea of injured honour is especially strong) if i should wish to push the defence (which was committed to me long ago) of the shame and honour of the same francesca pompilia; for her tender mind has been stained by no infamy arising from impure lust, and against her the suspicious husband could have made no objection, unless wife-murder had followed, as if from this he wished to prove the adultery merely because he could then kill his wife, and he killed her that she might be believed to be an adulteress. but now since the case has been most sadly terminated as regards all of those imprisoned (for thus these things terminated which should not have been begun) i begin anew the dispute over that most unfortunate question, and assert most safely (both for the reasons fully given in my argument for exclusion of the asserted rape, which is reassumed gratuitously, and for those more fully gathered by his honour, my lord advocate of the fisc, in his very learned allegations distributed in both presentations of the case), first that the memory of the aforesaid francesca pompilia should be utterly absolved from the crime of adultery, which was unjustly and all too bitterly charged upon her by her husband, and second that declaration should be made by a definitive sentence that she has never violated her marriage vow. and this is in spite of the fact that such insistence may seem incongruous. for although all crimes cease with the death of the criminal [citations], nevertheless when a crime is atrocious, and of such a nature that it involves in itself a brand of infamy, its memory ever endures. and therefore it is worth while for the principal to vindicate the fame of the authoress from the asserted crime of adultery, etc. pellegrini speaks as follows: "the thirteenth case is when the heirs of one dead, for the purpose of purging him from the infamy which works against him publicly on account of crime, wish that [the court] take knowledge of the crime itself, for the purpose of establishing his innocence, for this is conceded by law." and bossius asserts: "note that even if death does utterly remove any further penalty, yet the heirs of one who is dead may make a stand for his fame and honour, in order that a declaration may be made about that crime." and caballus: "for although with the death of the delinquent, a crime may be said to be extinct so far as his own person is concerned, yet the heirs of the accused, in their own interest and to wipe out the infamy of the one who is dead, may petition that the court go on to give an opinion, and that it be declared that the dead one had not committed crime." and he affirms the same under the following number. and indeed this is not without manifest reason. for just as the fisc may go further in the investigation of a crime that had been perpetrated during the lifetime of the one now dead, even for the purpose of damning his memory [citations], likewise it cannot be denied by the principal himself, as the beneficiary heir and successor of the same pompilia and pietro comparini, that inasmuch as her innocence is evident he may insist upon carrying away a sentence of absolution; for in other cases any one at all may have a chance to defend one who is dead. [citations.] and to delay such a judgment it is not right that the flight again be alleged, which the said pompilia made in the company of canon caponsacchi, with whom she was arrested at the inn of castelnuovo. for to remove that charge it is quite enough for one to allege the judgment of this most illustrious congregation, given under the date of february 18, last past, against guido franceschini, because of which he was publicly put to death on the twenty-second day following, notwithstanding the fact that, to avoid the penalty of wife-murder, he insisted solely upon the asserted adultery, which he claimed had resulted from the aforesaid flight from home. all suspicion whatsoever of her dishonesty ceases because of the defences then made and because, in the very prosecution, there was apparent a very just reason, on account of which the wretched wife attempted to flee thus from the home of her husband. nor was it for the purpose of satisfying lust with the asserted lover, but that she might go back to her own hearth, and there, with her parents, might live a safe and honest life. this cause is very plainly proved by the notorious quarrels which arose on account of the poverty of the domestic establishment immediately after her arrival at the city of arezzo along with pietro and violante comparini in execution of the agreement included in the marriage-contract. and on account of this poverty the comparini were obliged, after a few months, to go back to the city, with no small bitterness on account of the deception which they had detected. this is evident from the letters of abate paolo franceschini, which presuppose these complaints that resulted from the said deception, and especially from the letter written march 6, 1694: "i write again to you that i do not wish to imitate him in his manner of writing, not being of his mind to sow broadcast in my letters such words as would well merit response by deeds, and not by words. and these are so offensive that i have kept them for his reproof and mortification." and further on: "so that if you give trouble, which i will never believe, you yourself will not be exempt therefrom." it is also evident from the letters given in my past information, and especially in ⧠_videns igitur_, with the one following. and although this does not show the nature of the altercation, yet, since abate paolo has not shown the letters written to himself, the presumption presses upon him very strongly that the complaints were just and that the cause of their quarrels and altercations was well founded. [citations.] it is also true that a very bitter lawsuit was brought by pietro comparini for the nullification of the dowry contract and for the proof of the pretence of birth, which had been made by violante, the mother, both to deceive her husband and to bar his creditors, who were pressing him hard at the time. and since the dowry included all the property and the entire patrimony of comparini, which was of no small value when we consider the rank of the persons concerned, controversy had indeed been raised for a considerable amount by the father-in-law. and this, as experience teaches from time to time, is accustomed to bring forth implacable hatred and deadly enmity. [citations.] it produced indeed such an effect for this unfortunate wife, so that the love of her husband, which had long been disturbed by the preceding altercations, was finally quite extinct. and this was so to such an extent that she often found herself exposed to deadly peril because of the severity of her husband, who at times pursued her with abuse, and again even with a pistol. and it cannot be questioned that such perils are quite suited to strike fear even into any hardy man. [citations.] hence it can be much more affirmed of francesca pompilia, a girl of tender age, who was destitute of all aid, and away from her own home and her parents. [citations.] and mogolon [citation] declares that the mere sight of arms, even if the one who has them does not use them nor unsheath them, is just cause for fear; and in ⧠7, _no._ 15, he considers the absence of relatives as a ground for fear. and d. rainaldi [citation] says that it is enough if one sees signs or acts of manifest desire, or such as are preparatory. therefore, since so many very relevant circumstances concur, on account of which pompilia was moved to desert her husband's bed by flight, all suspicion whatsoever of dishonesty and of violated conjugal faith is utterly removed. for whenever we have two causes, one of which is lawful and permissible, while the other is iniquitous and abominable, the former is to be fully received, and thereby the charge of crime is quite excluded. [citations.] [and this is true] in spite of the fact that this lawful cause may seem to be excluded [first] by the letter written by francesca pompilia to abate paolo. for in the letter, after she had thanked abate paolo because he had joined her in marriage with his brother, pretence is made that her parents gave her the depraved counsel to destroy the entire home and to go back to the city with her lover; [it also makes pretence] that since their departure she was enjoying a quiet and tranquil life. [second] from the company of the canon giuseppe caponsacchi, with whom she had fled; because of which he was banished to civita vecchia for three years. for however it may be with the asserted letter, whether it is substantiated or not, and whether or not the qualification should be considered probable, which is added in her sworn testimony by the same pompilia, namely that her husband had marked the characters and she had blackened them with ink by tracing them with a pen, because she herself did not know how to write; yet it is certain that if the letter be read attentively it will be absolutely impossible to assert that she had written it with a calm mind. for who can be found so unmindful of filial love and duty toward parents as to persuade himself that this tender girl could have laid upon her parents such detestable crimes? because at the time she was not more than fourteen years old, according to the certificate of baptism given in the summary of the fisc, in the second setting forth of the cause, no. 2. and she was away from her own home and still grieving for the very recent departure of her parents, and was badly treated in the home of her husband, as is clearly shown by the continual complaints and recourse made not merely to the most reverend bishop, but also to the lord-commissioner of the city. nor is it probable that she would have informed her brother-in-law, who was so very unsympathetic toward her, of these matters unless, as she has frankly confessed in her sworn examination, she was compelled thereto by her husband. nor without very evident peril of death could she show any reluctance to him because of his excessive severity, which she had very often felt before. and as this improbability is well suited to strike horror into those who read it, so likewise it very well shows that the letter was not written voluntarily, but under compulsion. [citations.] caballus asserts that what no sane mind would approve is inadmissible. [citation.] and indeed such excessive cunning in extorting the said letter from the wife plainly proves guido's craft, and the fact that the letter was obtained by false pretence, in order that he might quiet the mind of the same abate, his brother. for the latter had been harassed by continual complaints on account of ill treatment of the wife, and had not ceased to criticise guido daily for them. [citation.] as to her association with canon caponsacchi, this likewise does not seem enough to establish the blot of dishonour. for the most wretched wife was utterly destitute of all earthly aid and had vainly entreated the authority of the most reverend bishop, and of the lord-comissioner, to free her from deadly peril; and on account of her age and sex it was not suitable that she should flee alone or in the company of some low-born serving-woman, for in that way she would carelessly expose herself to graver peril, as might have happened to her if she had been overtaken while alone on the journey. for then it could be said of her: "she fell upon scylla while trying to avoid charybdis." therefore we should not be surprised if she took the aforesaid canon as a companion. for he had been proposed to her by both canon conti and gregorio guillichini, who were related to pompilia's husband. and it is utterly incredible that they would have consented to such a flight if they had not known it was quite necessary to evade the peril of death, which they very well knew was threatening the luckless wife, and if they had not had strong faith in the honesty and integrity of her companion. therefore, as such a necessity was pressing so hard upon her, her prudent choice of the lesser evil eliminates any shadow whatsoever of her pretended dishonesty. [citations.] [this is especially true when we] consider the manner in which the flight was executed, by taking the most direct road to the city with the utmost possible speed. and it very well shows that the sole motive was to save her life, and not to debase herself by licentious delights. for if this latter had indeed been the principal cause, she would not have gone to rome by the shortest road, where she might immediately be taken by her brother-in-law and her parents, but would have gone to some more distant regions, or else she would not have gone with such swiftness, but would have delayed out of the public highway, and in a place where her husband could not find her, and where she could fulfil to satiety her lust. this utter improbability therefore very well shows the truth of the cause for flight adduced by the wife in her sworn testimony--namely that she had gone swiftly to the city in order that she might there place her life and honour in safety in the home of her parents. for just as the strongest sentence of blame may arise from mere probability, so likewise no less presumption of innocence should arise from this improbability. [citations.] and this is strongly urged by the frank protestation made in the very act of arrest at the inn of castelnuovo to the husband himself by the canon, who rebuked him concerning this flight: "i am a gallant man, and what i have done, i have done to free your wife from the peril of death." so testifies jacopo, son of the former simon, a witness for the fisc, in the prosecution for flight (page 50). and an example was offered by me in my allegation as regards that flight, namely that of scipio africanus. for when the beautiful young wife of aleucius, the chief of the celtiberi, had been captured by scipio's soldiers, he said in restoring her to her husband: "your wife has been with me as she would be with her own parents. her virtue has been preserved for you so that she can be given back to you again, a gift unviolated and worthy of me and you." titus livius bears witness to this in his _histories_, book 26, and page 493 in my volume. and although it may be very difficult for a beautiful woman to preserve the decorum of her honour while journeying in the company of a young lover, yet it is not utterly impossible, as the examples seem to show, which were related in my allegation, ⧠_quidqud dicat_. and to these i add that of penelope, of whom ovid sings in book 3 of his elegies [_amores_, iii., 4, 23]: "although she lacked a guard, penelope continued chaste among so many suitors." and this is especially true since neither the journey nor the company of the canon were voluntary, but were merely for the purpose of avoiding the peril of death. and since such necessity was present, the presumption drawn from ovid's _ars amandi_ is rendered still further inapplicable, namely that "from a passionate young man, can she be believed to have returned a virgin?" [_heroides_, 5, 129.] nor do the letters which were found in the closet of the inn at castelnuovo seem to stand in the way and hinder the sentence petitioned, and impose a blot of infamy upon francesca pompilia. it is claimed that these were written by her to the canon on account of the very devoted love with which she was pursuing him. but the exceptions and responses made in the past informations hold good. the first is that they were not acknowledged by her, nor was the identity of the handwriting proved; and some uncertainty is still present, since it is not evident to whom they were directed; nor would it be improbable that they might have been framed by the husband. for he was present at the capture and search, and hoped, indeed, that therefrom might result more readily the fixing of the crime of adultery. and he insisted very strongly upon this, in order that he might gain the desired dowry and lucre. this mere possibility to the contrary is enough to avoid the proof, which it is claimed may be drawn from them. [citations.] the second response is that, even though such exceptions as the above might not hold good, yet no proof of violated conjugal faith and of dishonour can be drawn from these letters. for even though proof of adultery may result from love-letters, it is utterly excluded in our case when we see that they were directed to a licit end, namely toward soliciting the canon that he might afford her aid in her flight and that she might avoid deadly peril. for then, just as the end is permissible, so should the means also be considered lawful and permissible, even though suspicion is not lacking; for these should be considered, not in themselves, but on account of their end. [citations.] but indeed, unless from the love-letters themselves there result an implicit confession of fornication, proof of adultery cannot be drawn from them. [citations.] it should be specially noted that she had very strong confidence in her own continence and in the integrity of the canon. and she trusted him much, and hoped that he would conduct himself modestly during the journey, since it is evident from these same letters that she had found fault with him for his freedom once: "and i marvel, that you who have been so chaste, have composed and copied matters that are so dishonourable." and further on: "but i would not have you do in any case as you have done in these books. the first of them is honourable, but the other octaves are quite the contrary. i cannot believe that you, who have been of such honour, have become so bold." for such sincere objurgation and the very tenor of the letters in which no dishonesty is read, clearly show and declare the spirit of pompilia, who wrote them. for just as words are to be understood according to the thought of the one proffering them, so likewise should letters be interpreted according to the intention of the one writing them. [citations.] since therefore the honour and modesty of pompilia is vindicated from the flight and the letters, of still lighter weight are the other proofs of pretended dishonour. these are deduced from the approach of the canon to her home for the purpose of speaking to her; from the insidious manner in which the flight was prepared and put into execution, by means of an opiate administered to her husband and the servants; from their mutual kisses on the journey; and from their sleeping together at the inn of castelnuovo. for beside the general response that no conclusive proof is offered for all these, such as would be necessary to establish pompilia as guilty of adultery, there is a separate response for each of them. the entry and egress at night time into the home of francesca rests merely upon the deposition of a single witness, maria margherita contenti, who is under two very relevant exceptions: namely those of singleness and of harlotry. her word therefore can impose no blot of infamy. [citations.] and since such approach would tend toward the single end of arranging for the flight and rescue of the unfortunate wife from the very imminent peril of death, it should not be presumed to be for an evil end. for when an express cause is plainly present, to which a matter may be referred, and this cause is entirely lawful, the matter should not be attributed to a cause that is illicit and criminal. [citation.] the insidious manner, also, whereby francesca pompilia put into execution the flight, by preparing an opiate for her husband and all the household (aside from the fact that it is not proved), would afford proof of sagacity rather than of dishonour, even if it were proved. for the wife would have been very foolish if she had attempted flight without such a precaution. under the same lack of proof labours the asserted mutual kissing during the journey; for that proof is entirely too slight, which is pretended to result from the deposition of a single witness of the lowest class. especially since his word is shown to be too much prejudiced; for he swears that, while he was driving the carriage swiftly at night time, he saw francesca pompilia and the canon kissing each other. nor does he give any reason, as that the moon was shining, or that some artificial light was present to dispel the darkness. inasmuch as such a detail is necessary in a witness who is testifying about a deed at night time, its omission takes away all confidence in him. [citations.] for there is to be added another very strong improbability, namely that, while he was driving the carriage with such velocity that it seemed to fly rather than to run, he could see their mutual kissing by looking backward. still more is this improbability increased by the very word of this same witness, since he swears that he had driven pompilia without knowing that it was she, until afterward returning to arezzo, he had met guido franceschini, her husband, following her. because if he had seen her kiss, he would have recognised her straightway, since he had often seen her before and she was well known to him. and therefore it should be absolutely declared that, either influenced by the tedium of his secret prison, he had been compelled to swear so, or, as is more probable, since on account of the very great speed of the carriage the bumping together of those seated therein might chance, he had believed that this chance jostling of their heads and faces was for the base purpose of kissing. hence the proof arising from his deposition was justly held in contempt in the prosecution for flight. and it would have been considered if it had had any probability. finally the proof of dishonour drawn from the asserted sleeping together in the same tavern at castelnuovo is far weaker, since it was constantly denied by both pompilia and caponsacchi in their testimony. and only a single witness, the house-man of the same tavern, swears to it; and this also not from certain knowledge, but presumptively, because they had asked him for a room with a single bed. canon caponsacchi frankly confesses why he had ordered that only a single bed should be prepared--namely that francesca pompilia, who was worn out because of ill-health and the discomfort of their precipitate journey, might rest a little, while he himself kept guard. such an act should not be assigned to an illicit cause, as cravetta [citation] advises in such circumstances. and in no. 15, he says that interpretation should always incline to the humaner side, even when the rigorous side may seem the more likely. and the same author continues thus in _nos._ 20 _and_ 21. for it would not suffice as a full proof of adultery that any one be found alone and naked with her alone and naked, and that a young man be found unclothed and with shoes off in a closed chamber with a woman. much less can such proof arise from a very brief delay in the same chamber for the purpose of keeping watch. very slightly does it stand in the way that francesca pompilia, in her cross-examination, concealed this delay by asserting that she had arrived at the tavern at dawn. for she was very well aware of the credulousness of her husband, and possibly asserted this to avert further suspicion of violated honour, which certainly might have arisen if she had confessed that she had spent a longer time in the tavern. as even if she had not denied such a stay, the confession under circumstances that still argue for the preservation of her modesty would not have been to her prejudice, so likewise the lie can do no injury. [citations.] but all suspicion of pretended dishonour is quite eliminated by the assertion of the most unfortunate woman, which was made in the very face of death, after many severe wounds had been inflicted upon her by her husband. [for she declared that] she had never sinned against her marriage vow, as is very evident from the numerous depositions of religious men, who ministered to her in death. they assert that they heard her continually praying that she might be given no forgiveness by the divine clemency for such a sin. this assertion made in the very face of death, deserves all faith, since no one placed in that condition is presumed to be so unmindful of eternal safety as to be willing to lie. [citations.] finally, no foundation for accusing the memory of francesca pompilia of dishonesty can be established upon the asserted decree of this most illustrious congregation, by whom canon caponsacchi was condemned to three years' banishment in civita vecchia, with a statement made of his running away and criminal knowledge of francesca pompilia. for, as the fisc himself admits, there was demanded by me, though not _in extenso_, the modification of that title by the honourable judges, with the approval of his excellency the governor. and therefore, in the order for imprisonment, these words were suppressed and others were put in their place: _pro causa de qua in actis_. all further difficulty is removed from the mere consideration that such a decree had been issued, while no defences had been made for francesca pompilia, and while she was still utterly without a hearing. for she had not the slightest knowledge of it, since she had not been notified. but in the decree for the assignment of the home as a prison, only a cause relative to the trial was expressed. hence it could not injure her, since it was issued against a third party while she herself had not been cited. [citations.] and in the circumstances that a sentence given against an adulterer can do no injury to the adulteress when she has not been cited is the text. [citations.] "if he is condemned, the wife is not condemned thereby, but shall carry on her own case." [citation.] this is especially true since we are not now contending to free the husband from wife-murder, and to infer a just cause apart from belief in the dishonour of the wife resulting from the said decree, and which would excuse him from the penalty of the cornelian law. in this case, the changing of the said decree might possibly serve for an escape. but we are contending about the damning of the memory of a woman now dead, and about rescuing her and her family from infamy. and in the latter case just as such a harsh decree could not injure her during her lifetime, so likewise it cannot do her injury after her death. antonio lamparelli, _procurator of charity_. [in old writing.] and according to the letter of carolo antonio ugolinucci, may 17, 1698, i understand that the criminal court after two votes, decided on absolution. instrument of final judgment [pamphlet 18.] given for the restoration of the good name and reputation of francesca pompilia, now dead; formerly the wife of guido franceschini of arezzo, now dead; for acquittal in favour of domenico tighetti, as an heir beneficiary of the same francesca pompilia, from all disquietude, all molestations, vexations, and perturbations, brought or threatened to be brought by the venerable monastery of saint mary magdalene of the convertites in the corso; together with the citations lawfully executed in observation of the four terms to instruct themselves as to the appeal and its legal prosecution, in order that the same sentence might pass on, as it has passed on, to judgment, because no appeal has been interposed. in the name of god, amen. september 9, 1698, under the sixth declaration in the eighth year of the pontificate of the most sacred father in christ, etc., innocent xii., pope by divine providence. this is a copy, or transcript, of the citations made by my own act, and written below, and of the sentence rendered respectively of the following tenor, namely: the most reverend and most illustrious governor in criminal matters: let the undernamed principals on the other side be cited, etc., to appear in the criminal court to-morrow, which will be the nineteenth day of the current month, at the accustomed hour of convening court, lest it seem good that each and all the terms be repeated as ill founded, and that they therefore are to be held and observed as null and void in their force for any powers whatsoever, and lest the one so insisting be freed from censures, so far as, etc., it be concluded, or seem best to be concluded in the case, and that the final sentence be heard in due form according to the aforesaid insistence by domenico tighetti, heir-beneficiary of the former francesca pompilia, the wife of the former guido franceschini, as principal, or, etc. notary for the poor. the most illustrious francesco de gambi, procurator general of the fisc, and of the reverend apostolic chamber. the honourable giovanni maria serbucci, procurator and manager of the lawsuit brought by the former guido franceschini. the honourable francesco paracciani, procurator of the venerable monastery santa maria magdalena of the convertites in the corso. against the procurator general of the fisc, etc. he says that no sentence can be given, unless in favour of the fisc, and so far as, etc., insists that he be granted delay for the purpose, and in the meantime they cannot go on to any expediting of the cause, except for reason given in full court, and by the vote of the lords thereof, and by testimony of the opposition in prison, and without citing all who have interest, etc., this 18th day of august, 1698. francesco gambi, _procurator general of the fisc_. i have made the above citation against the fisc personally this day, and against the others by copy, which was sent to their homes, this august 18, 1698. balatresius. aloysius pichius, _substitute for the fiscal general_. _august 19, 1698._ when he had made statement of fact, antonio lamparelli, procurator, presented his case and petitioned as above. thereupon the most illustrious and most excellent lord, marcus antonius venturinus, j.v.d., who holds the judicial bench, for the most illustrious and most reverend governor of our dear city in criminal cases, gave sentence, as in this schedule, which he has taken in his own hands, has seen, read, and subscribed, and given and consigned to me as a notary for publication of the following tenor, etc., in the presence of antonio bernardino piceno and antonio toparino of caprarola, witnesses, etc. in favour of domenico tighetti, in the name, etc., against the fisc and those consorting with him in the suit. in the name of christ, whom we have invoked, we who sit for this tribunal, and who have only god before our eyes, give this as our definitive sentence, which we offer in these writings by the advice of those skilled in law, in the cause or causes which have been tried before ourselves in the first place, or in the second, and which are now being considered, between domenico tighetti, as heir-beneficiary of the former francesca pompilia, wife of the former guido franceschini of arezzo, on the one part; and the fisc and giovanni maria serbucci as procurator and manager of the lawsuit of the former guido franceschini, and francesco paracciani, procurator of the monastery of santa maria magdalena of the convertites in the corso, for all their rights and parts in that interest, on the other part; concerning and upon the pretended adultery committed by the said former francesca pompilia with canon giuseppe maria caponsacchi, and as regards other matters in the conduct of the cause or causes of this kind, more fully deduced, etc. by authority of the decree for the remission of the case, which was made by the most illustrious and most reverend auditor s.s., by the acts of pascasius, concerning which in the conduct, etc., and for cause given in the court, and by vote of the same, we say, pronounce, declare, and finally adjudge from what has been newly deduced, that _proof is not established as regards the pretended adultery_, and therefore the memory of the same francesca pompilia should be and is _entirely_ restored to her pristine good name and reputation; and that the same domenico tighetti, in whose name the above was deduced, should be and is absolved and liberated from each and all disquietudes, molestations, vexations, and perturbations brought, or threatened to be brought, by occasion of these as on account of the statement of these we have restored, absolved, and freed him, as above. and for this restitution and absolution and freedom, we wish and command that it be held as law that the suit or suits, of whatever nature, which have been brought thereupon be abolished, as we abolish them. and we charge that perpetual silence be imposed upon the fisc and his consorts in the suit. and we have thus spoken, pronounced, declared, and finally given sentence, not only, etc. i, marcus antonius venturinus, who hold the judicial bench have so pronounced. given on this 19th day of august, in the presence of antonio bernardino piceno, and antonio toparino of caprarola, witnesses, etc. by the most illustrious governor of the city in criminal cases, or the most excellent lord venturini. let the undernamed be cited for learning the appeal, and its lawful prosecution for the first time, at the aforesaid instance of domenico tighetti, as principal heir-beneficiary of the aforesaid francesca pompilia, formerly wife of guido franceschini: charitas. the honourable giovanni maria serbucci, as procurator and manager of the legal proceedings of the said former guido franceschini, as principal on the other side. the honourable francesco paracciani, the procurator of the venerable monastery and convent of st. mary magdalene of the convertites in the corso for all, etc. i have made the said citation at his home, august 31, 1698. molinellus. _september 1, 1698._ when we had made statement of fact, r. d. alexander cassar, substitute procurator of charity, appeared, petitioned, and was granted, as above. by the most illustrious governor of the city in criminal causes, or by the most excellent lord venturini. let those named below be cited for learning of the appeal and its legitimate prosecution this second time, at the aforesaid instance of domenico tighetti, heir-beneficiary of the former francesca pompilia, formerly wife of the former guido franceschini, principal, or, etc. charitas. d. giovanni maria serbucci, as procurator and manager of the lawsuit brought by the former guido franceschini, as the principal on the other side. d. francesco paracciani, procurator on the other side for the venerable monastery and convent of st. mary magdalene of the convertites in the corso, for all, etc. september 1, 1698, i have made this. molinellus. by the most illustrious governor in criminal causes, or by the most excellent lord venturini. september 3. when he had made statement of fact, r. d. alexander cassar, substitute procurator of the poor, appeared, petitioned, and was granted, as above. let those named below, be cited for learning of the appeal and its lawful prosecution, this third time, at the aforesaid instance of domenico tighetti, heir-beneficiary of the former francesca pompilia, wife of the former guido franceschini, as principal, or, etc. charitas. d. giovanni maria serbucci, as procurator and manager of the lawsuit brought by the former guido franceschini, as principal on the other side. d. francesco paracciani, procurator of the other side for the venerable monastery and convent of santa maria magdalena of the convertites in the corso, for all, etc. i made this september 3, 1698. molinellus. september 4, 1698. when he had made statement of fact, r. d. alexander cassar, substitute procurator of the poor, appeared, petitioned, and was granted as above. by the governor in criminal causes, or the most excellent lord venturini. let those named below be cited for learning of the appeal and its lawful prosecution, this fourth time, and of the final presentation, and the decree, etc., at the aforesaid instance of domenico tighetti, heir-beneficiary of the former francesca pompilia, formerly wife of the former guido franceschini, as principal, or, etc. charitas. d. giovanni maria serbucci, as procurator and manager of the lawsuit brought by the former guido franceschini as principal on the other side. d. francesco paracciani, as procurator of the venerable monastery and convent of santa maria magdalena in the corso, for all, etc. i have done this, september 4, 1698 balatresius. _september 5, 1698._ when he had made statement of fact, r. d. alexander cassar, substitute procurator of the poor, appeared, petitioned, and was granted, as above. i, domenico barlocci, notary of the court of criminal causes of the most illustrious and most reverend governor of the city, as notary for the poor, have found this copy correct by collating it, although it was extracted from the original documents by one who is trustworthy in my eyes, etc. in pledge of the above, i have subscribed and have published it, as i am required to do. [the seal of the said notary.] the secondary source of the ring and the book a contemporary manuscript pamphlet "the following pages contain a ms. contemporaneous account of the execution of the principal actors in the tragedy which has been immortalised in the poem of the _ring and the book_. "i am enabled by the kindness of my friend, mr. browning, to give it a place in these miscellanies of the philobiblion society." john simeon. (i shall not attempt to say with what a feeling i correct proof-sheets received on the day subsequent to that which brought the intelligence of the death of this great-hearted and noble-minded man, characteristically good and gracious to the very last.) r. b., may 24, 1870. the above words are the introduction by sir john simeon and the comment by the poet (philobiblion society miscellanies, xii. 1868-9), on the reprint of the subsequent pamphlet in the original italian. it was found in london by one of browning's acquaintances, who, knowing the poet's interest in the subject, sent it to him. internal evidence indicates that it was probably written (but not published) some few years after the crime, and it is more popular in style than any part of _the book_. the writer during the first half of his pamphlet follows closely the affidavit of pompilia and the second anonymous pamphlet [no. 15] of _the book_. he then adds much interesting information as to the murder and the pursuit, arrest, trial, and execution of the criminals. browning uses almost every scrap of additional information it affords. he accepts its fact with the same fidelity he shows in using _the book_, and uses it extensively and without discounting its value as compared with the official record. it is therefore treated as an essential portion of the present source-study. its new matter will be indicated by italics in the following translation. mrs. orr has published somewhat less than half of the pamphlet in her _handbook_ in translation, which has been reprinted in the camberwell browning, and in the _browning guide book_ by g. w. cook. the present version is made directly from the italian text of the philobiblion society reprint. the death of the wife-murderer guido franceschini, by beheading guido franceschini, a nobleman of arezzo, in tuscany, had stayed for some time here in rome in the service of a person of some eminence. he decided to take a wife with dowry enough to be of advantage to his own house. when he had revealed this desire to a certain hairdresser _near the piazza colonna_, she proposed to him the signora francesca pompilia, thirteen years of age, the daughter of a certain pietro comparini and violante peruzzi. for beside the promised dowry, she was heir to the reversionary interest in bonds and other properties worth about 12,000 scudi. when he had heard of this advantageous dowry, which seemed to him to be quite to his point, he lost no time in revealing it to his brother abate paolo, who had dwelt here in rome for many years in the service of a cardinal. he went along with guido to the mother of the young woman, as they flattered themselves that they would succeed better in this way than by demanding her of the father, who was somewhat hard to approach. when they had made it appear that their income was of considerable amount, they succeeded in their intent; although it was then found out that their entire capital did not amount to the total of their income as given in that note. it was easy for franceschini to win over this woman, as _she was driven by the ambition of establishing her daughter in the home of persons of good birth_. she gave her own consent, and so worked upon her husband as to induce him to sign the marriage bond. then when comparini had been informed by a person who knew the resources of franceschini, that they were quite different from what they had been represented to him, he changed his mind, nor did he wish under any consideration to carry out the marriage. _he gave as a pretext the very tender age of his daughter_, along with other reasons. the mother of francesca, however, not seeing any chance to give her daughter to franceschini, had her secretly _married during december_, 1693, _in san lorenzo in lucina_. when this marriage reached the ears of comparini, he was much angered at violante. but she had such a gift of gab that comparini not only agreed to it, but beside the dowry of 2,600 scudi, _on which he had already paid 700 scudi, he also made gift of his entire possessions to the couple_. after several days, franceschini decided to conduct his wife and her parents back to arezzo, _and this took place in the same december_. when they had arrived there, the parents of the wife could see that the state of their son-in-law was much worse than they had imagined it. therefore they were all the more embittered at the penuriousness they showed in the food, and many other matters. _one morning while they were at the table they heard their daughter_ [violante according to _the book_] _denied fire for warming her bed_, and saw the franceschini practise many other cruelties toward her. they were much troubled at it, and _all the more so when they saw a canon of the franceschini household, a brother of the husband, rush upon their daughter_ [violante according to _the book_]. _he struck francesca with a dagger in his hand, who had to make her escape by running into a room and shutting the door. then one evening her father went to visit a friend, and when he had come back home he found the door shut. therefore his daughter, who was still awake, was obliged to go downstairs to open it for him, but not without first having called her husband, who never even opened an eye. then when she had gone down to open the door and had gone outside a few steps to meet her father, all of a sudden she found herself shut outside the house along with her father. for that reason they were both of them obliged to sleep outside of the house that night, her father at the inn and the daughter at one of the neighbours._ therefore, more and more, as the days passed, the comparini decided to return to rome. but as they were without money they were obliged to beg it of franceschini, who _scarcely gave them the necessary expenses of the journey_. when the old comparini had departed, franceschini thought to hide what had happened. he constrained his wife to write to rome to the abate, his brother, to tell him that she cherished in her heart his memory. this letter was dictated by the husband himself. the ignorant girl did as guido wished, whose purpose was to have it believed that his parents-in-law were the fomentors of the dissension which prevailed between the couple and the relatives of franceschini. when the comparini had reached rome, ill-contented as they were with the house of their son-in-law, for whom they now saw they had sacrificed their daughter, they did not know how to hold their peace about that matter, of which they themselves had been the cause. all the more so when they were harassed for the remainder of the dowry, beside the fact that they saw the rest of their property in danger. while affairs were in this state a jubilee was announced; under these circumstances violante comparini revealed in confession that francesca pompilia, who was married to franceschini, was not their daughter, but that the birth had been pretended. she had in fact been born of a _poor widow, a foreigner_, and had then been adopted to bring it about that the reversionary interest would fall to their house, and hence to make good the many debts of her husband. _when the confessor heard this, he charged her to reveal all the affair to her husband himself. violante obeyed, and comparini was greatly surprised at it, and rebuked his wife sharply._ he then submitted the matter to judgment before monsignor tomati; the following was spoken in sentence: it should be maintained that francesca pompilia shall be and is in quasi-possession of her relationship as daughter. therefore appeal was taken by comparini to the tribunal of the sacred rota, but the suit still remains undecided. in the meantime the franceschini, seeing that they had been deluded by this circumstance, since they could not get possession of the residue of the dowry, redoubled their cruelties to the poor pompilia even to the point of threatening her with death. hence she was very often obliged to save herself by fleeing into some other house, or before the authorities, or even into the presence of the bishop, _whom she finally begged to save her by putting her in some monastery_. but this prelate thought it better to send her back to her husband's home, urging him not to mistreat her. when the unfortunate woman saw that the admonitions of this bishop had been useless, and that this way of softening the heart of her husband and his relatives had proved vain, and when they reproved her for sterility and for coquetry, and for other faults of their own imagining, she betook herself to an augustinian, romano, that he might write to his superiors or to her parents to find some provision for her. but although the father promised to do as she desired, his letters never reached their destination. the wretched woman was therefore desperate and determined to get to rome in some manner or other. she told the whole matter to canon conti, a relative of the franceschini, to whom she made a most pathetic picture of her situation. he was moved thereby, and answered that he would aid her, as he did, by offering to have her taken to rome by canon caponsacchi, his friend, since he himself ought not and could not do it. when the circumstances had been told to caponsacchi, he was opposed to it, for fear of incurring the anger of the franceschini; but when he had been urged both by conti and the woman, he consented thereto. and on the last monday of april the wife arose from bed as soon as day dawned, without her husband knowing about it. she took some things of her own, some jewels, and money, left the house, and at the gate of the city found caponsacchi, who was awaiting her with a carriage. they mounted together and set out on the road toward rome. when franceschini awoke and discovered the flight of his wife, as he already suspected that she had started for rome, he began to pursue her, and on the following tuesday [should be wednesday] overtook her at castelnuovo in the post-house, where she was in company with caponsacchi. the young woman was not at all terrified at the sight of her husband, but on the contrary she mustered her courage and reproved him for all the cruelties practised upon her, because of which she had been forced to this step. then franceschini was thunderstruck, and did not know how or what to respond. hence he thought it best to have recourse to the authorities. the fugitives were arrested by the governor of the place, and both of them were taken to rome and placed in the new prisons, and were charged with adultery because they had run away together. he tried to prove the charge by certain love-letters which had been found, and by the deposition of the driver. but as the adultery was not proved, the canon was condemned for three years to civita vecchia, and the wife was shut into the monastery of the scalette on the lungara. when the husband therefore saw that this had not helped him in gaining the dowry, he decided to go back to his own country, leaving the care of his case in the hands of his brother, the abate, who was in the service of a cardinal. but although the abate tried by many a turn to succeed in his intent before the tribunals, he could not achieve it. hence he also decided to leave rome. and he was spurred all the more by its becoming known that his sister pompilia was with child. for this reason, the governor of rome had constrained him to consent that she should keep her own home as a prison, under security of 300 scudi to present herself at every demand of the tribunal. the abate indeed was unwilling to give his consent unless pietro comparini should first assume obligation, by an official document, to furnish her with food. _and then, when he had obtained the permission of his cardinal, he sold his furniture and books_, and when he had made them pay over the 47 scudi which had been found upon pompilia at castelnuovo, he left rome. after that pompilia bore a son, _whom she named gaetano, after the saint to whom she made her vows_. franceschini, who was now overwhelmed with manifold troubles, and was urged on now by honour and again by self-interest to take vengeance, at last yielded to his base thoughts and planned to kill his sixteen-year-old wife and her parents. when four other criminals had been admitted to the scheme, he left arezzo, _and on christmas eve reached rome. he stopped at ponte milvio, where there was a villa of his brother. there he remained in hiding with his followers until a time opportune for the execution of his designs should come._ they spied out all the ways of the comparini family, and on january 2, _which was thursday_, at about seven o'clock in the evening, he approached the comparini home with his companions. he left on guard at the street door biagio agostinelli and domenico gambassini, and knocked at the door. when he had said that he brought a letter of canon caponsacchi from civita vecchia the door was opened to him. immediately this cut-throat franceschini, assisted by the other two criminals, leaped upon violante who had opened it and struck her dead to the ground. pompilia in this crisis extinguished the light, hoping thus to escape the assassins, _and ran to the neighbouring door of a locksmith crying out for help. but when she saw that franceschini was provided with a lantern she went to hide under the bed_; but she was dragged from there, and was barbarously slain _with 22 wounds_ by the hand of her husband. not content with that, he dragged her to the feet of comparini, who was likewise wounded by one of the other assassins, _and was crying out_ "_confession_." _when the uproar of this horrible slaughter was heard abroad, people ran thither, but the criminals succeeded in escaping. but in their haste one of them left his cloak, and franceschini his cap, which betrayed him afterward._ the unfortunate francesca pompilia, under the burden of such wounds as those with which she had been cut to pieces, _implored the holy virgin for the favour of confession, and obtained her prayer_. hence she survived some little while, and _was able to tell about this horrible crime. she told that after the deed was done her husband had asked of one of the cut-throats who had done the murder with him, if she were indeed dead. when that one had assured him, he replied: "let us lose no time, but return to the vineyard."_ and so they made their escape. _in the meantime the police had been summoned, and came with a captain. a confessor was quickly called and also a surgeon who gave his attention to the luckless girl._ when the governor had been informed of the outcome, he _immediately despatched captain patrizi_ to arrest the criminals. _when the posse arrived at the vineyard, he found that these were no longer there, but that about an hour ago they had left in the direction of the highway. then patrizi followed without interrupting his journey, and when he had reached the inn he learned from the host that franceschini had demanded horses with threat of violence, but they had been denied him, because he lacked the necessary order._ hence he had travelled afoot with his companions toward baccano. _patrizi continued his march, and, after taking the necessary precautions_, arrived at the tavern of merluzza. there he found the assassins, who were straightway arrested. on them were found, still stained with blood, those daggers with which they had done the murders, and _upon franceschini were found 150 scudi in money. this arrest indeed cost the life of patrizi, because having been overheated and wounded with a slight scratch he died in a few days._ _franceschini's dagger was of a genoese pattern, triangular, and with certain hooks made in such a way that in wounding they could not be drawn from the wound without such laceration as to render the wound incurable._ _when the criminals were known to be at ponte milvio, in that very inn they were heard on their preliminary examinations by notaries and judges sent there expressly, and satisfactory confession was had._ _when the capture of the delinquents was known in rome, a countless throng of people rushed thither to see them, while all the criminals were tied to their horses and conducted to rome. it is told that franceschini, while making the journey, asked one of the officers how in the world the crime had ever been discovered. and when he was answered that his wife, whom they had found still living, had revealed it, he was so astounded that he was, as it were, deprived of his senses. about five o'clock in the evening they reached the prisons. a certain francesco pasquini, of the town of castello, and alessandro baldeschi of the same town, both of them 22 years old, along with guido franceschini had been the slayers of the comparini. and gambassini and agostinelli were those who had stood guard at the street door._ _in the meantime there were exposed in san lorenzo, in lucina the bodies of the assassinated comparini, who were so disfigured, and especially the wife of franceschini, by wounds in the face that they were no longer recognisable._ the unfortunate francesca, when she had taken sacrament and had pardoned her murderers, and had made her own will, died, not yet having completed her seventeenth year. this was on the 6th, which was the day of the epiphany. she was able to justify herself against all the calumnies inflicted by her husband. _the surprise of the people at seeing the said bodies was great, because of the atrocity of the deed, which truly made them shudder_, seeing that two old septuagenarians and a young girl of 17 years had so wretchedly perished. as the trial of the criminals advanced, there were many arguments made on the matter, laying stress on all the more aggravating circumstances which accompanied this horrible massacre. others also were made in the defence with much erudition, especially by the advocate of the poor, who was a certain monsignor spreti. he succeeded in delaying the sentence, because baldeschi made denial, even though "the cord" was administered to him twice, under which he swooned. finally he confessed, and the others did likewise. _they also revealed that they had planned to kill franceschini himself, and to rob him of his money, because he had not kept his word to pay them as soon as they left rome._ on february 22 was seen _in the piazza del popolo a great platform with mannaia, and two great gallows, which had been built for the execution of the criminals. many stands were constructed for the accommodation of those curious to see such a terrible execution, and so great was the concourse of people that some windows brought as much as six dollars each. at the eighth hour [2 a.m.] franceschini and his companions were informed of their death and were placed in the consorteria. there they were assisted by abate panciatichi and cardinal acciajoli, nor did they delay in preparing themselves to die well. at the 20th hour [2 p.m.] the company of death and of pity arrived at the prisons. the condemned were made to go downstairs, and were placed upon separate carts to be drawn to the place of execution._ _the first to mount the cart was agostinelli, the second gambassini, the third pasquini, the fourth baldeschi, and the fifth franceschini, who showed more intrepidity and composure than the others, to the wonder of all._ _they left the prison and followed the pilgrims street, the street_ _of the governor, of pasquini, piazza navona, the pantheon, piazza colonna, and the corso._ _the first who was executed was agostinelli, the second gambassini, the third pasquini, the fourth baldeschi, and the last franceschini. when the last-named had mounted the platform, he asked pardon for his sins, and begged them to pray for his soul, adding that they should say a pater, an ave, and salve regina for him. when he had made the confessor announce that he was reconciled, he adjusted his neck upon mannaia and, with the name of jesus on his lips, he was beheaded. the head was then shown to the people by the executioner._ _franceschini was low of stature, thin and pallid, with prominent nose, black hair and a heavy beard, and was_ fifty years of age. _he wore the same garb as when he committed the crime--that is a coat of brown cloth, black shirt, a vest of goatshair, a white hat and cotton cap; clothed presumably as he had been when he had set out from arezzo._ the execution took place during the _pontificate of innocent xii._, in 1698. trial and death of franceschini and his companions for the murder of comparini, his wife, and daughter which happened during the time of innocent xii. editorial note the following additional account of the franceschini murder case was discovered a few years ago in the royal casanatense library, rome (misc. ms. 2037), in a volume entitled _varii successi curiosi e degni di esser considerate_, containing thirteen pamphlets by various authors, most of them concerning famous criminal trials, from rome of the seventeenth century. the volume is in a hand of the early eighteenth century, and contains an endorsement to the effect that a copy was made from it in 1746. the franceschini murder is the subject of the tenth narrative of the volume. internal evidences indicate that it was written somewhat later than the secondary source pamphlet, by one who has considerable knowledge of the crime and whose attitude of mind shows him to have been a priest. it presents a better story and a fuller account of the motives of the actors, especially those of abate paolo and violante, together with a number of additional matters of fact not contained in _the book_. it never fell in browning's way, and hence has no immediate source-relation to the poem, but it does prove in some cases the accuracy of browning's conjectures of unknown facts when definite data failed him. the pamphlet was printed in translation by w. hall griffin in the _monthly review_, november 1900. the present version has been made by the editor from a transcript of the original italian executed by a friend in rome.--c.w.h. trial and death of franceschini and his companions for the murder of comparini, his wife, and daughter which happened during the time of innocent xii. the abate franceschini, born in arezzo, tuscany, of a family which was noble, but poor of estate, having the cleverness to advance his own fortunes, proceeded to the city of rome, and was admitted by cardinal lauria into his household as secretary of the embassy. his inherent mental aptness won for him the favour of the cardinal, who was held in great esteem in the sacred college by reason of his learning, and who stood so high that he might well have aspired to the papal chair. in this lucky juncture, abate paolo, wishing to take advantage of his good fortune, thought to provide a wife for his brother guido and to recoup his family fortunes by a rich dowry. guido had served cardinal nerli in the same capacity, as secretary of the embassy; but either because he had not the good luck or the ability of his brother he left that service. although paolo knew that the idle state of his brother would be hurtful to his claims of dowry, he did not cease aspiring to a very advantageous one, flattering himself that his own distinction might make up for the shortcomings of his brother. now guido had reached full maturity, was of weak temperament, ordinary in appearance, of a disposition more gloomy than pleasant, and, moreover, was of scant means. hence, unless abate paolo should use his own influence, he could have little expectation for guido. after having attempted several alliances of high rank, paolo fixed his thought on francesca pompilia, the daughter of pietro and violante comparini. as she was their only child, and as her parents were too far advanced in years to have other offspring, she would fall heir to a reversionary interest of 12,000 scudi; and he hoped that he could easily make the match, as the comparini were rather inferior to him in birth. a certain hairdresser frequented the home of the comparini with the familiarity admitted by those women who desire to make themselves appear more beautiful to their husbands' eyes than they are and which some husbands tolerate who rely too much upon the fidelity of their wives. paolo considered this woman to be the best means for aiding his designs for the marriage of guido, and the latter often went to her shop with the purpose of winning her confidence by odd jobs. when he had often turned the talk to the subject of taking a wife, she told him one day he might readily apply for the daughter of the comparini, for she had a suitable dowry, besides being heiress to a reversionary interest, and was of a small family connection, which were his very requirements. when through her efforts he had succeeded in achieving the marriage, it was understood he should reward her with 200 scudi. the hairdresser lost no time in broaching the matter to violante, who, anxious for the advancement of her daughter and for the establishment of her own interests, agreed to speak of it to her husband, and, if the matter were as stated, to persuade him to effect it. violante spoke to her husband about it and he did not reject the proposal, provided that the vaunted riches of the franceschini were verified, but he said this would have to be given in a written statement attested by well-known and reliable persons. when the hairdresser had carried back this word to the franceschini, they sent a statement of their real estate in arezzo, with an income amounting to 1700 scudi, attested by persons well known to the comparini, and who confirmed it to them orally. abate paolo, fearing lest this fortune might escape him, gave them no time to change their minds, and in order to make the matter surer he desired to secure it by the hand of cardinal lauria, his patron, by whom he had the marriage agreement drawn up; for his eminence was pleased to show kindness to the advantage of a man whom he regarded with some favour. meanwhile comparini had become better informed of the rank and property of the franceschini and found them far different from the preceding account, both in rank and in property. therefore he had a warm dispute with his wife, who persisted in the marriage, and declared that he had been advised by persons envious of the good fortune of one or the other house, and who wished to hinder it, and that she was not shaken in her original desire; for she was very sure, from other truthful witnesses, that the franceschini were of the first rank of nobility of arezzo, and not of the second, as those had said, and that the property given in the list had been untampered with. but the more she warmed to the matter, the cooler became pietro; for being very diplomatic, if he could not gain, at least he wished not to lose by the marriage of his daughter. but what does not a man lose when he allows his wife to rule him? he loved her so tenderly that from the first day of their marriage he had constituted her the arbitress of his wishes. violante, nevertheless, fearing lest pietro, in a case of such importance, might be more influenced by reason than by flattery, could suffer no delay in making secure the reversionary interest which another house could claim if the comparini were without an heir; she therefore resolved to have the marriage performed without the knowledge of pietro. when she had secured the consent of the daughter, who was always obedient to her commands, and had made an appointment with guido, she conducted her, suitably clothed, one morning to san lorenzo, in lucina, and espoused the two. pietro felt the blow keenly, but being unable to find any remedy for it, he cloaked his anger with the show of being displeased at not having been present, and this displeasure would cease in him with the joy of the nuptial feast, which should be in their house. he assigned to his daughter as dowry twenty-six bonds, with future succession to the remainder. on the very same day, after talking of the advantages which would result to both houses from the union of their interests, they decided upon the removal of the comparini to arezzo, which followed in a few days, and with it the absolute administration of the property by guido. when they had reached arezzo the comparini were received by the mother and relatives of franceschini with all that show of love which is customary on such occasions. but very soon, from constant association, disturbances arose, and thence they passed to hostilities. the mother of guido, a proud, avaricious woman, who governed the household despotically, took to stinting it even in the necessary food. this moved the comparini to complaints, to which the franceschini first responded with insults and then with threats. this was a thing violante could not tolerate, for, being a woman, she had her own share of natural arrogance. so she began tormenting pietro, cursing the day when he had decided to move to arezzo, laying the blame on him for all that of which she had been the cause. and pietro, who was one of those men who let themselves be overcome by a couple of crocodile tears of their wives, instead of reproving her for the undertaking (although she had concluded the marriage against his wish and without his knowledge), entreated her affectionately to bear with patience the abuses, which would possibly cease when the franceschini saw them defended by their daughter. at that time [november 30, 1693] passed from this life to heaven cardinal lauria, a churchman of merit beyond all praise. then abate paolo was elected secretary in rome of the religious order of malta. at this the haughtiness of the franceschini increased so much that they considered it grand good fortune for the comparini to be considered their friends, not to say their relatives. violante being no longer able to live under the proud command of another woman, since she had been in the habit of domineering, as her husband had been subject to her wishes, so tormented him that she induced him to take up his residence in rome again. for this purpose the franceschini gave them a sum of money sufficient for the journey and for the most necessary furniture in the home. scarcely had they reached rome when, to the surprise of everybody, it was reported that pietro had dispatched a judicial warning, in which he set forth that francesca pompilia was not really his own daughter and that therefore he was not obliged to pay the dowry. he brought the attestation of violante his wife, who had declared that to check her husband's creditors in the matter of the trust fund and to enjoy the income of the bonds she had feigned to be pregnant and, that her husband might not discover the trick, she agreed with him that when she became pregnant they should abstain from association until after the birth of their child. and so, on the very day of this pretence, they took separate bedrooms; still further, by well-arranged clothes, she feigned the swelling of the womb, and by suitable drugs made pretence of nausea until her time was come. she then took advantage of a day when pietro was occupied in his lawsuits, to bring forth the pretended birth, which was well carried out by the sagacity of a midwife in the secret, who provided whatever was necessary. and that the house servant might not detect the trick, they sent him to the apothecary to secure certain medicines. at the same time the midwife went to get a little creature whom she had received the day before from a neighbour, who was already in the secret. when she had returned to the house she summoned a familiar friend of the comparini from a window. matters were so well arranged that when the woman arrived, there was nothing more to do than to make her believe what was not really so. and to trick more surely the thought of this neighbour, they feigned that when violante wished to pass from the bed to a chair, she fainted into the arms of the woman by reason of her pains, since the midwife could not run up in time. this unexpected act of pietro, which became known in rome immediately, was heard with less wonder than scorn. the just anger of the franceschini would have undertaken due vengeance if it had not been mitigated by the hope that, since pompilia was not the true and legitimate daughter of pietro and violante, the marriage would be annulled and guido's wounded reputation would be healed. but when he had taken counsel with several authorities and found they were of different opinions, he was unwilling to risk so doubtful an affair, in the promotion of which they would necessarily confess and presuppose that she was not the daughter of the comparini, and by this confession they would be prejudiced in their claims to the dowry. they opposed the judicial notice, and obtained for pompilia the continuance of her quasi-relation as daughter, together with a decree for the transfer of the dowry bonds. but pietro appealed to the signature of justice so trickily that the franceschini had the expense of the transfer, but not the enjoyment of the income, since they obtained from it not even a two months' payment. the unfortunate pompilia was the victim of the hatred of these two houses; for she was left alone in arezzo at the will of her husband, her mother-in-law, and her relatives, who were mortally offended at her parents, and she was hourly threatened with death. in so deplorable a state the courage even of a more mature woman would have failed, not to speak of that of a girl only sixteen years old. for she was innocent of the wiles of her mother and of the duplicity of her father and by her own good qualities she was worthy of tenderness rather than cruelty. the unhappy one suffered as best she could these tyrannies which were ever increasing, but despairing of all hope of peace, she often had recourse to the governor of the city, that he might interpose his authority with the franceschini. as this was of no avail, she threw herself at the feet of the bishop, who had guido come into his presence and who tried to reconcile him. but guido's anger increased all the more because of this public recourse, and he threatened pompilia with certain death if she should ever try it again. when the poor child saw every way to peace closed against her she appealed to canon conti, a relative of the franceschini, who was very well informed of her wretchedness because he visited the house, and she begged him to save her life, which was in continual peril. he was moved to pity, for he knew that she had no other remedy than flight. as he could not personally assist in this, lest he would have to bear the hatred of the entire family connection, he suggested to her that the very person for such an enterprise was the canon caponsacchi, his intimate friend and somewhat related to him by blood, whose courage was no less ready to meet danger than to overcome it. pompilia accepted the counsel of conti, who lost no time in opening the affair with caponsacchi. he at first showed some unwillingness, as he hesitated to carry away a wife from her husband, even with the sole purpose of conducting her to her own parents. but when he had been fully informed of the insufferable abuses of guido and his relatives his pity prevailed over all other considerations and he accepted the undertaking. pompilia, who was eager for this, tried to win him by letters and amorous verses, yet always keeping herself true to her marriage vows, as one may read in her letters. in some of these she praises the modesty of caponsacchi, in others she reproves him for having sent some octaves which were slightly reprehensible, and she urged him to keep unstained that nobility of which he boasted. on the day appointed for flight, with the assistance of canon conti, the two took their places in a carriage and travelled as fast as they could, without resting save when it was necessary to change horses. they arrived the second morning at dawn at castelnuovo, and, in spite of the fact that the host had assigned them a bed for repose, pompilia seated herself in a chair and caponsacchi went down to the stable to urge on the driver. when guido awoke after the flight of pompilia and perceived that she was not in bed, he arose in a fury, and, seeing the jewel-box open and minus the jewels and money, which it had contained, he surmised what had happened to him. accordingly, on a good horse, he sped along the roman road and overtook the fugitives at the abovesaid inn of castelnuovo an hour after their arrival. when pompilia saw him, with that courage which desperation may arouse even in the weakest spirits, she seized caponsacchi's sword which lay upon the table, unsheathed it, and thrust at his life, calling him betrayer and tyrant. guido, fearing lest her spirit no less than the valour of caponsacchi might bring his death rather than revenge, turned his horse and rushed to the authorities. he had the fugitives arrested and conveyed to the new prisons, where he entered charge of flight and adultery against them. the abate paolo who, as has been said, was the secretary of the religious order of malta in rome, made noisy recourse for his honour to the pope, and he put a petition before monsignor pallavicino, the governor, demanding that he declare caponsacchi the seducer of his sister-in-law, and both of them guilty of adultery, and that his brother for that reason was entitled to gain the entire dowry. legal proceedings were instituted against them according to the most rigorous forms of law, but no proof of guilt was found against caponsacchi and pompilia except the love-letters written at the time of the arranging of the flight, the undertaking of the flight itself, and the deposition of the driver. for the latter declared that he had sometimes seen, when he had turned back during the journey, that they were joined face to face, that is cheek to cheek, a matter which did not make full proof of fault, since the rough roads and the headlong speed of the journey jostling them about might have been the cause of it. wherefore the court deemed it prudent and just to sentence caponsacchi to three years' relegation in civita vecchia for his rashness in running away with a wife from her husband, even though the motive was pity. while the case of the franceschini against pompilia was on trial, pompilia was transported with their consent, as their prisoner, into the monastery of the scalette on the lungara, with the obligation that guido, her husband, should provide her food. there, after a little while, it was discovered that she was pregnant, and as it no longer comported with the reverence of that place that she should remain there, with the consent of abate paolo, who had power of attorney for his brother, monsignor the governor ordered that she should pass into the home of the comparini, her parents, under security of 300 scudi to keep it as a secure prison; and he declared that guido's obligation for her food should cease the very day she left the monastery. this cause, in which the franceschini were not obliged to have hand for mere honour's sake, was seen to have its chief motive in selfishness. therefore there was not a company where the conduct of one or the other party was not censured. for this reason the religious order of malta gave secret intimation to abate paolo that he should resign his office. at the loss of this honourable post, rein was given to the evil tongues of his adversaries. this put abate paolo in such straits that, ashamed to meet his dearest friends, he decided to leave rome and to pass to a clime where information of the dishonour that so afflicted him would never come. when guido was informed of the departure of his brother and of the obligation resting on him of repairing the honour of his house, he thought that to go into voluntary exile, as his brother had done, would only prove the baseness of his own mind. for he had been justly charged with this, since at the time he had overtaken his wife with her abductor he had failed in that very place to take the vengeance which was demanded at his hands. in due time pompilia had given birth to a son, who was sent out of the house by the comparini to nurse. thereupon every one believed, and especially violante, that the ties of blood would move guido to a reconciliation with his wife. for in spite of their declaration that pompilia was not their daughter, the minds of the comparini might still be disposed to some reconciliation. but guido's thought was quite different, for he was continually stirred, even in the absence of abate paolo, to plot the removal from this world of the entire memory of his dishonour by the death of pompilia, pietro, and violante, and possibly of still others. guido had in his employ, in the country, a daring and wicked labourer [alessandro baldeschi] to whom he often exaggerated the shame which his wife and the comparini had brought upon his house. to him guido revealed that with his assistance he wished to purge with their blood the stain to his honour. the cut-throat straightway accepted and declared that, if there were need of other company, he had three or four friends for whom he would vouch. guido replied that he should take three bold and trusty ones to make sure against any possible resistance, and should use all care to secure them at the lowest possible price. when all had been agreed upon, and arms suitable for the affair had been prepared, guido, with his four companions in disguise, secretly took the road to rome. reaching the home of the comparini at eight o'clock in the evening, one of them knocked at the door, and when pietro responded, the murderer told him that he had a letter to give him which had been sent from civita vecchia by caponsacchi. when the women heard this they told pietro to have him come back again next morning, urging him not to open the door. but he was curious about the news from caponsacchi, and when the murderer replied that he could not come back in the morning, as he was obliged to leave that night, he opened the fatal door and thereby admitted his own death and that of violante and pompilia. guido in a transport of rage leaped in with two companions, leaving the others on guard. they first dealt the poor old man many blows, and deprived him of life before he could lift his voice. scarcely had the unfortunate women seen this when, transfixed with like wounds, they suffered the same fate. upon the unfortunate pompilia fell the blows of her husband, accompanied with countless insults, and after he had trampled her several times under foot and wounded her anew, not trusting his own fury, he told his companions to see if she were really dead. one of them lifted her by the hair and let her fall again, and assured guido that she was no longer alive. when this barbarous murder had been concluded and the money agreed upon had been paid to the cut-throats, guido wished to leave them, but they would not allow him to desert them for fear that one might kill another, as frequently happens for hiding such misdeeds. or else the murderers, while united with their leader, had agreed to kill guido as they thought he might have a large sum of money. hence they did not consent to his leaving them and they took the road toward arezzo together, which they agreed to make on foot, as they could not secure posthorses. from these repeated wounds pietro and violante were quite dead, but not pompilia, though her wounds were more numerous. for because of her innocence she was especially helped by the divine mercy, and she knew so well how to feign death that she deceived the murderers. when she saw that they were gone, with her dying breath she mustered sufficient strength of voice to make the neighbours hear her cries for help. they found her in the last extremities, and eagerly ministered first to her soul and then to her body. her wounds were so numerous and of such a nature that although they did not immediately kill her, they made her death certain. this occurred a few days later, to the sorrow of all those who assisted her and who had knowledge of this pitiable case. the fortitude with which she suffered the pains of her treatment caused as much wonder as her resignation to the divine will caused love. she not only did not blame the cruelty of her husband, but with fervent prayers she besought god to pardon him. the compassion of her assistants both for her soul and for her body i attest by the following sworn statement concerning not only her innocence, but the happy passage of her pure soul to heaven. [then follow the affidavits of fra celestino and others given in _the book_]. divine justice, which would not suffer so atrocious a deed to go unpunished, caused the criminals to be overtaken by the authorities at the break of dawn at an inn a few miles from rome. for when they had eaten a little, they went to sleep by the fire, fatigued by the journey and overcome with drowsiness. the police rushed violently in upon them and, pointing carbines at their breasts, assailed and bound them at once. they were straightway taken to the new prisons, and the governor apprised the pope of this barbarous murder and of the arrest of the guilty. he gave commands that, without delay and with all rigour, trial should be brought, this being a case which, by reason of the consequences which might arise from it, should be examined into with very special attention. far less torment than would seem to be necessary had to be applied to get the confession of the murderers and of guido, who more than the rest had stood by his denial. but at the sight of torment he had not the heart to resist longer and confessed fully, saying indeed that the crime had had no other motive than the reparation of his honour which had been so publicly offended. this was a matter which any common man would have undertaken, not to speak of himself, who was a gentleman; and if on his first examination he denied the truth of this, he had done so lest he might injure his companions, who had aided him in a deed worthy of all sympathy, because he had honour as his sole end. with the confession of guido and its ratification by the rest, the process was finished, and they were sentenced, the cut-throats to the gallows and guido to mannaia, a means of death conceded rather out of respect for his being in clerical orders than for any other reason. the advocate and procurator of the poor had written so ably in their defence on the point of honour that there is no memory of more learned arguments. but the features of the crime were so many (and all of them punishable with death) that they were overcome no less by their nature than by their number. among such features was the bearing of arms prohibited under capital penalty, the death of pietro and violante who were not accomplices in the flight of pompilia, the murder while a lawsuit was pending, and in their own home, which place the authorities had with the consent of guido assigned to pompilia as a secure prison. the many other weighty charges which displayed the great learning of the defenders were the just cause of the death of the accused. yet with the usual hope of all those who make confession of capital crime, guido flattered himself that he could save his life by reason of his honour. at the unexpected announcement he did not give up to such a frenzy as frequently follows in those who experience so terrible a disaster, but, as if stupefied, after a few minutes he heaved a deep sigh, accompanied by a few tears, which by their extraordinary size showed dying symptoms. he said: "i well feared a heavy sentence, but not that of death. my crime is great, but love of honour has never suffered me to perceive what it was until now that sentence has been passed, which i hold in such reverence that i wish to appeal only to god, to whom alone i turn for the only mercy. without his will i should never have reached this awful pass, which may be a comfort to me and not a source of bitterness, that i may gain by entire resignation to his will the merit of his pardon." and then he threw himself into the arms of the compassionate frati and showed such signs of true contrition that their prayers were accompanied by tears rather than by exhortations. his four accomplices did not submit themselves with the same readiness, for as they were of lower birth so were they less swayed by reason, which would render them impressible to the punishment they had merited. the oldest [baldeschi] and youngest [agostinelli] were the most obstinate, the one from having a heart hardened by so many years of evil life, and the other being all too sensitive to so harsh a punishment for a single crime, in the very flower of his youth, without ever having spilled a drop of blood, and with the sole fault of having been induced to stand as guard at a door through which guido had had to pass, to purge himself of the stains to his honour by the blood of his foes. as the hour of execution drew nearer, the stubbornness of these wretches so increased that the frati despaired of their repentance. at last the divine mercy, which works miracles when we least expect it, entered their hearts and gloriously demonstrated his omnipotence. they finally trusted in god, and the memory of those faults which had made them obstinate, and which were now illuminated by the divine grace that disposed them to penitence, fitted them for pardon. when these souls had been secured for god after such a hard contest, the execution passed from the new prisons at tor di nonna to the scaffold raised in the piazza del popolo in view of the gate and of the corso. in the midst was the block on a lofty scaffold, larger than usual and with steps made with particular care; on the two sides the gallows were placed at equal distances. in spite of the vastness of the piazza, not a single foot was left which had not been occupied by stands, which were covered with tapestry and other ornaments forming a theatre for festal celebrations rather than for a solemn tragedy. his four companions preceded guido, each of them in a separate cart, assisted by the devotion of the accustomed frati [the brotherhood of death], and followed by a countless concourse of people praying for a blessed departure, which in view of their contrite resignation seemed not at all doubtful and even a certain hope. rarely did guido franceschini turn his eyes from the crucifix, except when nature, overwearied by the steadfastness of his gaze, made him turn away his head but not his heart, which had been wholly given to his creator so that none was left for himself. when he had reached the piazza di pasquino, and the cart had stopped before the church of agonizzanti, where on days of public execution it is customary to offer the sacrament to the delinquents condemned to death and therewith to bless them, guido knelt and began to recite, in a voice quite audible to bystanders, certain verses of the _miserere_, and among them this, "hide thy face from my sins and blot out all mine iniquities." he accompanied this with such signs of sorrow and penitence that the people by their tears showed no less grief than the one condemned. with equal devotion his companions received the same blessing, but the behaviour of the youngest [agostinelli] was remarkable beyond belief, who beside himself with his love of heaven and of god, by his expressions which exceeded his own capacity, confounded the wisdom of his pious assistants. thence by the most densely populated streets they continued the journey to the piazza del popolo, where they all died, guido last, with those acts of contrition which their preparation had shown. as the youngest had displayed most blessed signs during life, so it pleased god that he met his death likewise, for at the moment the executioner did his work, he clasped between his breast and his hands the image of that crucifix whereby they had become certain of divine pardon. this assured the people of his salvation as his untimely death had aroused their pity. rome has never seen an execution with a greater concourse of people, nor does it remember a case on which there was such general talk as on this. some defended the comparini, because they had suffered abuse, others the franceschini as it was a matter of honour. but, on looking at the matter dispassionately, they were adjudged to be equally guilty, except that pompilia, who was entirely ignorant of the truth, was without blame; for she had consented to the marriage at the command of her mother without the knowledge of her father, and had fled from her husband for fear of death with which he had often unjustly threatened her. from trickery arose the union of these two houses, from the franceschini in frauds regarding property they did not possess, from the comparini by the pretended birth, or by this very pretence if the birth were real. the trick arose from greed of gain in pietro to secure the trust moneys for himself, and in the franceschini to minister to their own ease; so all was done contrary to laws both human and divine. hence a bad beginning was followed with a wretched ending, as has been told above. notes and comment 1. _title-page_ (p. 1). the manuscript title-page of the _book_ is closely paraphrased by browning, _r.b._ 1. 122-31, the word "position" being used as the equivalent of italian _posizione_. 2. _the index_ (p. 3) (italian, _indice_) is a manuscript table of contents, evidently supplied by the original collector. 3. _a transcript of the sentence against pompilia_ (pp. 5-7) in the criminal courts of arezzo, dated february 15, 1697 (for 1698). parallel with the process of flight (_see_ note 18) in rome, the franceschini family evidently instituted criminal proceedings in arezzo against the fugitive pompilia, charging her with theft and adultery. signor guillichini and the driver borsi were included in the action as accessory to the crime. the franceschini were able to secure the condemnation here which was not obtainable in rome. under security of this sentence, granted in december 1697, guido could safely go on with the assassination of his wife, so far as tuscan law was concerned. the transcript in the _book_ is dated february 15, while the murder trial was at a crisis, and was probably sent to rome by signor cencini to assist guido in his peril. it is noteworthy that guido did not include caponsacchi in his accusation in arezzo. 4. _romana homicidiorum._ the frequently repeated designation of the case--_romana causa homicidiorum_--roman trial for murders. 5. _hyacinthus de archangelis_ (italian, _giacinto arcangeli_), _procurator pauperum_, was guido's chief defender, not an attorney employed privately by the defendant, but an official states' attorney for the defence. the roman court procedure in all cases assumed the right and obligation of the state to conduct both sides of a criminal case. 6. _desiderius spretus, advocatus pauperum_, was the co-defender of the accused. humphrey's _urbs et orbis_, p. 428, makes plain the respective functions of the two attorneys: "the advocate is a man skilled in civil and canon law, who defends causes in writing or by word of mouth, on the point of law, setting before the judges that which is true in law, or best founded in law, or the principles of law which ought to be applied in a particular case. his is the scientific part of the cause, and he speaks only to the point of law. matters of fact are to be established by the procurators, and it is upon these established facts that the advocate develops his judicial conclusions." 7. _joannes baptista bottinius, fisci et cam. apost. advoc._ (advocate of the fisc, or treasury, and of the reverend apostolic chamber), the chief prosecutor of the criminals, with functions equivalent to those of the prosecuting or states attorney in the common law. browning continually used the clipt form, fisc. 8. _franciscus de gambis, procurator fisci_, was the coadjutor in the prosecution, opening the case in pamphlet 5, but thereafter playing little part in the case. 9. _antonius lamparellus, procurator charitatis_, the attorney who, in pamphlet 17, defended the memory of the dead pompilia for her heir and against both the franceschini family and the nunnery of convertites (_see_ note 10), both of whom were accusing her memory to gain her estate. this trial in the criminal court of the governor, took place between the death of guido, february 22, and may 17, 1698. the decision "for absolution" was made _definitive_ by the decree of court, september 9, 1698 (pamphlet 18). 10. _the nunnery of the convertites._ within a month after the death of pompilia the nunnery of _sta. maria maddalena delle convertite al corso_ (founded 1520 _pro mulieribus ab inhonesta vita ad honestam se convertentibus_) laid claim to the whole of pompilia's property on the ground of their privilege of receiving the property of women of evil life who died in rome. 11. _most illustrious and most reverend lord governor._ all the arguments and the summaries of evidence in the murder case are addressed to the governor of rome, but the vice-governor, judge venturini, seems to have presided in his stead. 12. the title and imprint on the right half of the final page of each of these official pamphlets was evidently for convenience in filing the documents when folded into bundles. the imprint _typis rev. cam. apost._ (type of the reverend apostolic chamber), is the official imprint of the papal press. 13. _the deposition of angelica_ (pp. 49-53). angelica, a domestic in the franceschini home during january 1697, while the comparini were living in arezzo with their son-in-law, was probably carried back to rome by the comparini on their return to rome that she might serve as a witness to the poverty and parsimony of guido. she makes her affidavit at rome, june 24, 1694, evidently for use in the suit brought by comparini to recover the dowry paid with pompilia. how far it is true and how far it is the prejudiced and bitter word of a resentful servant who had been kicked out of doors, we cannot say. but its publication through court procedure must have been bitterly humiliating to the franceschini. what was worse, the comparini probably used this as a part of the slanderous stories they took pains to print and circulate in rome (p. 181). 14. _diverse attestations_ (p. 53). these attestations, made june 17, 1697, nearly seven weeks after the arrest of pompilia at castelnuovo, were evidently secured by her lawyers for her defence in the process of flight (note 18). 15. _the letters of signori romani and albergotti_ are undated, but were probably written soon after the departure of the comparini from arezzo in 1694. 16. _pompilia's letter to abate paolo_ (pp. 56-7). the much discussed letter of pompilia to abate paolo, dated june 14, 1694, full of calumniation of her parents, who had left arezzo only three months before, could not have been written by the fourteen-year-old girl voluntarily. guido must have composed it as a counter attack on the comparini, who were bringing suit against him at rome, and were loading him with shame. 17. _the attestations of fra celestino and others_ (pp. 57-60), dated january 10, only four days after the death of pompilia, was given at the instance of pompilia's executor, tighetti. it is a most important piece of evidence, and is cited repeatedly during the trial. its genuineness and sincerity are beyond question, and browning gained from it most of his faith in the innocence and saintly patience of pompilia. 18. _process of flight._ after the arrest of pompilia and caponsacchi at castelnuovo they were taken to rome and lodged in prison. they were soon brought to trial on the criminal charge of adulterous elopement. the case seems to have been in the same court which tried guido for murder eight months later, and probably continued in a desultory fashion all summer. in this case both of the accused made the deposition later included in the _book_. in this trial also, guido tried to introduce the testimony of the harlot-servant, maria margherita, and the love-letters. the case was never decided so far as pompilia was concerned. 19. _the deposition of pompilia_ (pp. 90-5), dated may 13, 1697, two weeks after her arrest at castelnuovo, giving the causes of her flight from her husband's home, was made by pompilia for her own defence in the process of flight. the marginal comments, adverse to her, are, of course, the prejudiced comments of guido's lawyers. 20. _the deposition of caponsacchi_ (pp. 95-8), made about the same time and under the same circumstances for the process of flight, was reintroduced as evidence in the murder case, but there is no reason to think that caponsacchi was brought into the latter case in any other way. 21. _the love-letters_ (pp. 99-106). these letters are one of the most elaborately discussed pieces of evidence in the _book_. guido claimed to have found them at the inn of castelnuovo after the arrest of the fugitives, and he offered them in court during the process of flight, as a proof of adultery in his wife, but they were thrown out by the court. their conventional fine-letter-writing, their studied innuendo and finesse, were quite beyond the capacity of an illiterate girl like pompilia. they were probably composed by guido, and if so, they prove that he was basely scheming to drive his wife into dishonourable flight that he might disgrace her and cast her off. the eighteenth letter was specifically denied by caponsacchi in his cross-examination. 22. _the sentence of relegation_ (p. 106) for three years in civita vecchia was decreed against caponsacchi at the close of the process of flight in september, 1697. it is commensurate with priestly indiscretion rather than with crime. 23. _the account of fact_ (pamphlet 10). this anonymous italian pamphlet is not at all a part of the official record of the murder case. it has no imprint and is in entirely different face of type, and must have been printed privately for circulation outside the courts. while much less technical and formal than the arguments of the lawyers, and much more studious of popular effects, it slips back repeatedly into the thought and the language of arcangeli, the defender of guido. it probably suggested half-rome in _the ring and the book_. 24. _the response_ (pamphlet 15) is a highly rhetorical, but effective, retort to the anonymous writer. it was written during the later stage of the murder trial, and was probably the work of signor bottini. it likewise is without imprint and signature, but may have been broadly scattered throughout rome. 25. "_to keep to this home of pietro ... as a prison_," _domus pro carcere_ (p. 159). for a month after the sentence against caponsacchi, pompilia was kept prisoner in the refuge called the _scalette_--a provision for her safekeeping, not a punishment. on october 12, she was permitted to give bond to keep the home of her foster parents, the comparini, as a prison, _domus pro carcere_, sentence against her being suspended. 26. _the scalette._ the _conservatorio di s. croce della penitenza alla lungara_ was an institution for penitent women, founded 1615, and popularly called _scalette_, because of the two adjoining stairways. browning confuses this institution with the convertites (note 10). 27. _baptismal record of pompilia_ (p. 159). this note, taken from the parish record of san lorenzo, in lucina, enables browning to make the exact statement of pompilia's age and her full name, as given in the opening lines of her monologue. 28. _pompilia's letter_ (p. 160) to her foster parents, written from prison at castelnuovo only two days after her arrest, is her plea to them for assistance. it was probably cited as evidence in the process of flight. 29. _the will of pietro comparini_ (pp. 160-1), evidently drawn up after he had learned pompilia was not his own daughter, and before her return to rome, aimed to prevent her being disinherited for that reason. its personal tone is good, and it is almost the only first-hand evidence of the character of pietro to be found in the _book_. 30. _power of attorney_ (p. 162). under date of october 7, 1694, guido grants full power of attorney to abate paolo, who was representing him in the lawsuits in rome and in other matters of business. 31. _arcangeli's manuscript letter_ (pp. 235-6). on february 22, 1698, only a few hours after the execution of guido, signor arcangeli, his legal defender, announces the end of the case to signor cencini, the florentine lawyer who collected the _book_, and who seems to have been professionally related to the franceschini family, as he had sent certain "proofs" to assist the cause of guido, probably including the report of the criminal condemnation of pompilia in the tuscan courts. (_see_ note 3). this letter is reproduced by browning, _r. b._ xii. 239-98. 32. _the other letters_ (pp. 237-8), written on the same day and to signor cencini, give a few additional details. the writers seem to have been professionally associated with the franceschini family. 33. _francesca pompilia_, foster daughter of the comparini, _b._ july 17, 1680; was married to guido franceschini, december 1693; fled from her husband's home in arezzo, april 29, 1697; arrested at castelnuovo, may 1; wrote to her foster parents from her prison at castelnuovo, may 3; made deposition in rome concerning her flight, may 13; was on trial for flight and adultery during the summer of 1697; was placed in the convent of the _scalette_, september 1697; removed to the home of the comparini as prison, october 12, 1697; gave birth to a son, gaetano, december 18, 1697; was assassinated january 2, 1698; died january 6. 34. _giuseppe maria caponsacchi_, _b._ may 26, 1673, was invested canon of the church of santa maria della pieve, november 26, 1693, and resigned "of his own accord," may 15, 1702. he is referred to in the _book_ as a man of courage, and his words as he faced guido at castelnuovo are significant: "i am a man, and have done what i have that i might save your wife from death." his affidavit is convincingly straightforward, in spite of certain discrepancies with pompilia's statements, and there is evident moral indignation in his replies under cross-examination. his participation in the dangerous flight in mere amorous intrigue seems unbelievably foolish, and could hardly have been carried through save on the motive he assigns, courageous "christian compassion." in september 1697 he went to civita vecchia under sentence of three years' relegation. 35. _canon conti_, called the "mediator in the flight," was brother of count aldobrandini, who had married guido's sister, and conti is accordingly spoken of as a "relative and frequenter of the franceschini home." he had been invested canon of the pieve, august 14, 1692. he must have been fully informed of pompilia's sufferings, and to him she turned at last for help. deeming it improper for himself to afford her relief, he urged his friend caponsacchi to accompany her. no criminal procedure was instituted against him in arezzo when pompilia and guillichini were accused. he died january 1698, and the second anonymous pamphleteer hints that this was due to foul play. 36. _guido franceschini_, _b._ january 24, 1658, the youngest son of an impoverished, second-rate, noble family of arezzo, had sought his fortunes in rome, where he became secretary of cardinal nerli. he dropped out of this service in middle life, with hardly a dollar in his pocket, and planned to recoup his fortunes by marriage with pompilia, the heiress of the well-to-do comparini. after the marriage in december 1693, the comparini accompanied him back to arezzo. he seems to have been unattractive and saturnine, and later on proved himself both crafty and brutal. 37. _abate paolo franceschini_, _b._ october 28, 1650, the older, shrewder, and more able brother of guido, was more successful in seeking his fortunes in the official world of rome. he became secretary of the powerful cardinal lauria, and on the death of the latter, november 30, 1693, obtained the lucrative office of secretary of the order of st. john of malta. he assisted guido in effecting the marriage with pompilia, and was his active agent in rome during the lawsuits which followed. in 1697 he lost his secretaryship because of the ignominy which had come upon him in guido's shameful troubles, and left rome, possibly, as he is accused by the second anonymous pamphleteer, to assist in planning the murder of the comparini. 38. _honoris causa._ as the fact of the murders by guido and his cut-throats was subject to no dispute, the whole law case turns on the question whether these murders had been _for the sake of honour_, the ever repeated plea of the unwritten law for the right of the husband to slay a wife sinning against her wifehood. the lawyer's devote themselves to ascertaining the limitations and privileges of this plea. 39. _incontinenti, ex intervallo._ there is much argument on the justification for honour's sake in murder done _immediately_ after the insult, or _after an interval_ of time has elapsed. in the latter case, the murder becomes premeditated, and is not justifiable on the ground of excusable heat of passion at an insult. 40. _the aggravating circumstances._ the prosecution makes much of the attendant criminal circumstances which surrounded the main crime of murder. these are first, the assembling of a band of armed men, constituting the crime of rebellion; second, the murder of a prisoner while under the care of the courts, pompilia being technically a prisoner detained in the process of flight; third, the assault upon opponents in a pending lawsuit, the comparini then being at law with guido; fourth, the violent breaking into a private home; fifth, the commission of crime under cover of disguise; sixth, the use of certain types of barbarous weapon, the very possession of which was a capital offence. the first three of these were _laesa majestas_, criminal insult to the majesty of the law. 41. _san lorenzo in lucina._ this church in the heart of rome just off the corso, and not very far from the home of the comparini at the corner of via vittoria, and strada paolina, was evidently the parish church of the comparini, as both the birth and death of pompilia are entered in its register. 42. _castelnuovo._ a village of but a few houses, fifteen miles north of rome. the inn and posthouse where pompilia and caponsacchi were overtaken by guido thus became one of the most important scenes in the tragedy. 43. _torture of the vigil._ guido and his companions were tortured thus, to get fuller testimony from them. this torture consisted originally in merely keeping the victim awake until he told his crime. later on his confession was accelerated by auxiliary devices for intensifying the suffering of the subject. 44. browning has taken the peroration used in the first lawyer's monologue, _r. b._ viii. 1637-1736, directly from the peroration of arcangeli in pamphlet 8, p. 130. 45. the description of the execution as given in _r. b._ xii. 113 _et seq._, is taken from the additional italian pamphlet, pp. 265-6. 46. in like manner _r. b._ viii. 587-683, is closely drawn from the _book_, pp. 153-4, with an interpolation in lines 640-57 from page 226. more than fifty of such word to word borrowings from the _book_ are made in this monologue. minute of the definite order of events in the case july 17, 1680. pompilia born. (note 27). december (?) 1693. pompilia married to guido franceschini. december 1693. the comparini accompany the bride to arezzo. four months residence together in arezzo. domestic broils in arezzo, january and february, 1694. march 1694. the comparini return to rome. april or may 1694. violante reveals base parentage of pompilia. june 14, 1694. pompilia's letter to abate paolo. (note 16). june 24, 1694. affidavit of angelica. (note 13). summer of 1694. pietro comparini prosecutes suit to recover dowry. august 2, 1694. letter of the governor to abate paolo. september 15, 1694. letter of the bishop of arezzo to abate paolo. march 1697. pompilia seeks aid of confessor romano. april, 1697. seeks aid of guillichini, conti, and caponsacchi. april 29 (1 a.m.). pompilia flees. april 30 (in the evening). fugitives arrive at castelnuovo. may 1 (early in the morning). guido overtakes fugitives and has them arrested. may 3. pompilia writes from the prison of castelnuovo. may 13. pompilia makes her deposition. (note 19). may 21. pompilia is further cross-examined. june 17, 1697. certain persons in arezzo make affidavit in pompilia's behalf. (note 14). summer of 1697. the process of flight. (note 18). september 24, 1697. caponsacchi sentenced to relegation. (note 22). october 12. pompilia permitted to return home under bond. (note 25). fall of 1697. pompilia institutes suit for divorce. fall of 1697. the franceschini push a criminal suit against pompilia in the criminal courts of arezzo. (note 3). fall of 1697. abate paolo loses his secretaryship of the order of st. john. december 18, 1697. pompilia gives birth to a son. december 24, 1697. guido and his cut-throats arrive in rome. january 2, 1698. guido murders his wife and the comparini. january 3. guido and his associates arrested and imprisoned. january 6. pompilia dies. january 19. fra celestino makes affidavit. (note 17). january 1698. the murder trial begins. january 1698. conti dies in arezzo. january 1698. sta. maria maddalena delle convertite institutes suit to gain pompilia's estate. (note 10). end of january. the torture of the vigil. (note 43). february 1698. the second stage of the murder trial. february 9. certificate of the baptismal record of pompilia obtained. (note 27). february 15. certificate of the tuscan criminal prosecution of pompilia obtained. (note 3). february 18. guido declared guilty, but a stay of sentence granted. february 21. execution set for following day. the pope overrules delay. february 22, 1698. the murderers are executed. spring of 1698. the franceschini bring suit to recover pompilia's property. may 17. the criminal court decides in favour of pompilia's executor. september 1-9, 1698. final decree of court, utterly clearing pompilia's reputation. browning uses all the above chronology with scrupulous accuracy, save when, for good artistic reasons, he changes the flight from april 29 to the 23rd, st. george's day. minute of the personal names found in the book and pamphlet and used by browning in his poem franceschini, signor guido. (note 36). franceschini, abate paolo. (note 37). franceschini, canon girolamo, _b._ august 5, 1654, brother of guido. franceschini, donna beatrice, 1631-1701, mother of guido. franceschini, count tommaso, father of guido. comparini, signor pietro, father of pompilia. comparini, violante, mother of pompilia. comparini, pompilia. (note 33). canon conti. (note 35). canon giuseppe caponsacchi. (note 34). signor guillichini, helper in the flight. borsi, the driver. signor marzi-medici, governor of arezzo. bishop of arezzo, giovanni matteo marchetti, 1691-1704. the confessor romano. maria margherita contenti, servant in the franceschini home. monna baldi (albergotti). cardinal panciatichi } cardinal acciajuoli } guido's confessors on the eve of execution. signor tighetti, trustee of pompilia's estate. the babe, gaetano. fra celestino, confessor of the dying pompilia. signor giacinto arcangeli. (note 5). signor bottini. (note 7). signor spreti. (note 6). signor cencini, a florentine lawyer interested in the murder trials. alessandro baldeschi } domenico gambassini } the assassins. francesco pasquini } biagio agostinelli } curate ottoboni, curate at san lorenzo, in lucina. judge tommati, auditor curiae. judge molines, of the ruota. marco antonio venturini, vice-governor, presiding in the murder case. personal reminiscences of early days in california, with other sketches. by stephen j. field. to which is added the story of his attempted assassination by a former associate on the supreme bench of the state. by hon. george c. gorham. printed for a few friends. not published. copyright, 1893, by stephen j. field. * * * * * the following sketches were taken down by a stenographer in the summer of 1877, at san francisco, from the narrative of judge field. they are printed at the request of a few friends, to whom they have an interest which they could not excite in others. * * * * * personal reminiscences of early days in california, with other sketches. index. why and how i came to california. first experiences in san francisco.--visit to marysville, and elected first alcalde of that district. experiences as alcalde. the turner controversy. running for the legislature. the turner controversy continued. life in the legislature. friendship for david c. broderick. legislation secured and beginning a new life. the barbour difficulty. removal from marysville.--life on the supreme bench.--end of judge turner. career on the supreme bench of california, as described by judge baldwin. the annoyances of my judicial life. rosy views of judicial life gradually vanishing.--unsettled land titles of the state.--asserted ownership by the state of gold and silver found in the soil.--present of a torpedo. hostility to the supreme court after the civil war.--the scofield resolution. the moulin vexation. the hastings malignity. appendix. ex. a.--notice of departure from new york for california, november 13, 1849. ex. b.--aid at election of alcalde by wm. h. parks.--a sketch of my opponent. ex. c.--oath of office as alcalde. ex. d.--order of district court imprisoning and fining me for alleged contempt of court; also order expelling messrs. goodwin and mulford and myself from the bar; and order imprisoning and fining judge haun for releasing me from imprisonment upon a writ of habeas corpus, and directing that the order to imprison me be enforced. ex. e.--record of proceedings in the court of sessions, when attempt was made to arrest its presiding judge; and the testimony of the clerk of the district court in reference to its proceedings relating to myself and judge haun. ex. f.--petition of citizens of marysville to the governor to suspend judge turner from office 249. ex. g.--letters of ira a. eaton and a.m. winn. ex. h, no. i.--letters from surviving members of the legislature of 1851, who voted to indefinitely postpone the proceedings for the impeachment of judge turner. ex. h, no. ii.--letter of judge mott on the difficulty with judge barbour. ex. i.--letter of l. martin, the friend of judge barbour in his street attack. ex. j.--sections 4, 5, and 7 of the act of july 1, 1864, to expedite the settlement of titles to lands in california; and the act of march 8, 1866, to quiet the title to certain lands in san francisco. ex. k.--letter of judge lake giving an account of the torpedo. ex. l.--extract from the report of the register and receiver of the land-office in the matter of the contests for lands on the soscol ranch * * * * * the attempted assassination of mr. justice field index. attempted assassination of justice field by a former associate on the state supreme bench chapter i the sharon-hill-terry litigation. chapter ii proceedings in the superior court of the state. chapter iii proceedings in the united states circuit court. [transcriber's note: there is no chapter iv] chapter v decision of the case in the federal court. chapter vi the marriage of terry and miss hill. chapter vii the bill of revivor. chapter viii the terrys imprisoned for contempt. chapter ix terry's petition to the circuit court for a release--its refusal--he appeals to the supreme court--unanimous decision against him there. chapter x president cleveland refuses to pardon terry--false statements of terry refuted. chapter xi terry's continued threats to kill justice field--return of the latter to california in 1889. chapter xii further proceedings in the state court.--judge sullivan's decision reversed. chapter xiii attempted assassination of justice field, resulting in terry's own death at the hands of a deputy united states marshal. chapter xiv sarah althea terry charges justice field and deputy marshal neagle with murder. chapter xv justice field's arrest and petition for release on habeas corpus. chapter xvi judge terry's funeral--refusal of the supreme court of california to adjourn on the occasion. chapter xvii habeas corpus proceedings in justice field's case. chapter xviii habeas corpus proceedings in neagle's case. chapter xix expressions of public opinion. chapter xx the appeal to the supreme court of the united states, and the second trial of sarah althea's divorce case. chapter xxi concluding observations. * * * * * why and how i came to california. some months previous to the mexican war, my brother david dudley field, of new york city, wrote two articles for the democratic review upon the subject of the northwestern boundary between the territory of the united states and the british possessions. one of these appeared in the june, and the other in the november number of the review for 1845.[1] while writing these articles he had occasion to examine several works on oregon and california, and, among others, that of greenhow, then recently published, and thus became familiar with the geography and political history of the pacific coast. the next spring, and soon after the war broke out, in the course of a conversation upon its probable results, he remarked, that if he were a young man, he would go to san francisco; that he was satisfied peace would never be concluded without our acquiring the harbor upon which it was situated; that there was no other good harbor on the coast, and that, in his opinion, that town would, at no distant day, become a great city. he also remarked that if i would go he would furnish the means, not only for the journey, but also for the purchase of land at san francisco and in its vicinity. this conversation was the first germ of my project of coming to california. some months afterwards, and while col. stevenson's regiment was preparing to start from new york for california, my brother again referred to the same subject and suggested the idea of my going out with the regiment. we had at that time a clerk in the office by the name of sluyter, for whom i had great regard. with him i talked the matter over, it being my intention, if i should go at all, to induce him if possible to accompany me. but he wished to get married, and i wished to go to europe. the result of our conference was, that the california project was deferred, with the understanding, however, that after my return from europe we should give it further consideration. but the idea of going to california thus suggested, made a powerful impression upon my mind. it pleased me. there was a smack of adventure in it. the going to a country comparatively unknown and taking a part in fashioning its institutions, was an attractive subject of contemplation. i had always thought that the most desirable fame a man could acquire was that of being the founder of a state, or of exerting a powerful influence for good upon its destinies; and the more i thought of the new territory about to fall into our hands beyond the sierra nevada, the more i was fascinated with the idea of settling there and growing up with it. but i was anxious first to visit, or rather to revisit, europe. i was not able, however, to make the necessary arrangements to do so until the summer of 1848. on the first of may of that year, i dissolved partnership with my brother, and in june started for europe. in the following december, while at galignani's news room in paris, i read in the new york herald the message of president polk, which confirmed previous reports, that gold had been discovered in california, then recently acquired. it is difficult to describe the effect which that message produced upon my mind. i read and re-read it, and the suggestion of my brother to go to that country recurred to me, and i felt some regret that i had not followed it. i remained in europe, however, and carried out my original plan of seeing its most interesting cities, and returned to the united states in 1849, arriving at new york on the 1st of october of that year. there was already at that early period a steamer leaving that city once or twice every month for chagres. it went crowded every trip. the impulse which had been started in me by my brother in 1846, strengthened by the message of president polk, had now become irresistible. i joined the throng, and on november 13th, 1849, took passage on the "crescent city;" and in about a week's time, in company with many others, i found myself at the little old spanish-american town of chagres, on the isthmus of panama. there we took small boats and were poled up the river by indians to cruces, at which place we mounted mules and rode over the mountain to panama. there i found a crowd of persons in every degree of excitement, waiting for passage to california. there were thousands of them. those who came on the "crescent city" had engaged passage on the pacific side also; but such was the demand among the multitude at panama for the means of transportation, that some of the steerage passengers sold their tickets from that place to san francisco for $750 apiece and took their chances of getting on cheaper. these sales, notwithstanding they appeared at the time to be great bargains, proved, in most cases, to be very unfortunate transactions; for the poor fellows who thus sold their tickets, besides losing their time, exposed themselves to the malaria of an unhealthy coast. there was in fact a good deal of sickness already among those on the isthmus, and many deaths afterwards occurred; and among those who survived there was much suffering before they could get away. the vessel that conveyed us, and by "us" i mean the passengers of the "crescent city," and as many others as could by any possibility procure passage from panama to san francisco was the old steamer "california." she was about one thousand tons burden; but probably no ship of two thousand ever carried a greater number of passengers on a long voyage. when we came to get under way, there did not seem to be any spare space from stem to stern. there were over twelve hundred persons on board, as i was informed.[2] unfortunately many of them carried with them the seeds of disease. the infection contracted under a tropical sun, being aggravated by hardships, insufficient food, and the crowded condition of the steamer, developed as the voyage proceeded. panama fever in its worst form broke out; and it was not long before the main deck was literally covered with the sick. there was a physician attached to the ship; but unfortunately he was also prostrated. the condition of things was very sad and painful. among the passengers taken sick were two by the name of gregory yale and stephen smith; and i turned myself into a nurse and took care of them. mr. yale, a gentleman of high attainments, and who afterwards occupied a prominent place at the bar of the state, was for a portion of the time dangerously ill, and i believe that but for my attentions he would have died. he himself was of this opinion, and afterwards expressed his appreciation of my attention in every way he could. in the many years i knew him he never failed to do me a kindness whenever an opportunity presented. finally, on the evening of december 28, 1849, after a passage of twenty-two days from panama, we reached san francisco, and landed between eight and nine o'clock that night. [1] the first article was entitled "the oregon question," and the second "the edinburgh and foreign quarterly on the oregon question." [2] note.--the number of passengers reported to the journals of san francisco on the arrival of the steamer was much less than this, probably to avoid drawing attention to the violation of the statute which restricted the number. first experiences in san francisco. upon landing from the steamer, my baggage consisted of two trunks, and i had only the sum of ten dollars in my pocket. i might, perhaps, have carried one trunk, but i could not manage two; so i was compelled to pay out seven of my ten dollars to have them taken to a room in an old adobe building on the west side of what is now known as portsmouth square. this room was about ten feet long by eight feet wide, and had a bed in it. for its occupation the sum of $35 a week was charged. two of my fellow-passengers and myself engaged it. they took the bed, and i took the floor. i do not think they had much the advantage on the score of comfort. the next morning i started out early with three dollars in my pocket. i hunted, up a restaurant and ordered the cheapest breakfast i could get. it cost me two dollars. a solitary dollar was, therefore, all the money in the world i had left, but i was in no respect despondent over my financial condition. it was a beautiful day, much like an indian summer day in the east, but finer. there was something exhilarating and exciting in the atmosphere which made everybody cheerful and buoyant. as i walked along the streets, i met a great many persons i had known in new york, and they all seemed to be in the highest spirits. every one in greeting me, said "it is a glorious country," or "isn't it a glorious country?" or "did you ever see a more glorious country?" or something to that effect. in every case the word "glorious" was sure to come out. there was something infectious in the use of the word, or rather in the feeling, which made its use natural. i had not been out many hours that morning before i caught the infection; and though i had but a single dollar in my pocket and no business whatever, and did not know where i was to get the next meal, i found myself saying to everybody i met, "it is a glorious country." the city presented an appearance which, to me, who had witnessed some curious scenes in the course of my travels, was singularly strange and wild. the bay then washed what is now the east side of montgomery street, between jackson and sacramento streets; and the sides of the hills sloping back from the water were covered with buildings of various kinds, some just begun, a few completed,--all, however, of the rudest sort, the greater number being merely canvas sheds. the locality then called happy valley, where mission and howard streets now are, between market and folsom streets, was occupied in a similar way. the streets were filled with people, it seemed to me, from every nation under heaven, all wearing their peculiar costumes. the majority of them were from the states; and each state had furnished specimens of every type within its borders. every country of europe had its representatives; and wanderers without a country were there in great numbers. there were also chilians, sonorians, kanakas from the sandwich islands, and chinese from canton and hong kong. all seemed, in hurrying to and fro, to be busily occupied and in a state of pleasurable excitement. everything needed for their wants; food, clothing, and lodging-quarters, and everything required for transportation and mining, were in urgent demand and obtained extravagant prices. yet no one seemed to complain of the charges made. there was an apparent disdain of all attempts to cheapen articles and reduce prices. news from the east was eagerly sought from all new comers. newspapers from new york were sold at a dollar apiece. i had a bundle of them, and seeing the price paid for such papers, i gave them to a fellow-passenger, telling him he might have half he could get for them. there were sixty-four numbers, if i recollect aright, and the third day after our arrival, to my astonishment he handed me thirty-two dollars, stating that he had sold them all at a dollar apiece. nearly everything else brought a similarly extravagant price. and this reminds me of an experience of my own with some chamois skins. before i left new york, i purchased a lot of stationery and the usual accompaniments of a writing-table, as i intended to practise my profession in california. the stationer, learning from some remark made by my brother cyrus, who was with me at the time, that i intended to go to california, said that i ought to buy some chamois skins in which to wrap the stationery, as they would be needed there to make bags for carrying gold-dust. upon this suggestion, i bought a dozen skins for ten dollars. on unpacking my trunk, in marysville, these chamois skins were of course exposed, and a gentleman calling at the tent, which i then occupied, asked me what i would take for them. i answered by inquiring what he would give for them. he replied at once, an ounce apiece. my astonishment nearly choked me, for an ounce was taken for sixteen dollars; at the mint, it often yielded eighteen or nineteen dollars in coin. i, of course, let the skins go, and blessed the hunter who brought the chamois down. the purchaser made bags of the skins, and the profit to him from their sale amounted to two ounces on each skin. from this transaction, the story arose that i had sold porte-monnaies in marysville before practising law, which is reported in the interesting book of messrs. barry and patten, entitled "men and memories of san francisco in the spring of 1850." the story has no other foundation. but i am digressing from the narrative of my first experience in san francisco. after taking my breakfast, as already stated, the first thing i noticed was a small building in the plaza, near which a crowd was gathered. upon inquiry, i was told it was the court-house. i at once started for the building, and on entering it, found that judge almond, of the san francisco district, was holding what was known as the court of first instance, and that a case was on trial. to my astonishment i saw two of my fellow-passengers, who had landed the night before, sitting on the jury. this seemed so strange that i waited till the case was over, and then inquired how it happened they were there. they said that they had been attracted to the building by the crowd, just as i had been, and that while looking on the proceedings of the court the sheriff had summoned them. they replied to the summons, that they had only just arrived in the country. but he said that fact made no difference; nobody had been in the country three months. they added that they had received eight dollars each for their services. at this piece of news i thought of my solitary dollar, and wondered if similar good fortune might not happen to me. so i lingered in the court-room, placing myself near the sheriff in the hope that on another jury he might summon me. but it was not my good luck. so i left the temple of justice and strolled around the busy city, enjoying myself with the novelty of everything. passing down clay street, and near kearney street, my attention was attracted by a sign in large letters, "jonathan d. stevenson, gold dust bought and sold here." as i saw this inscription i exclaimed, "hallo, here is good luck," for i suddenly recollected that when i left new york my brother dudley had handed me a note against stevenson for $350 or $400; stating that he understood the colonel had become rich in california, and telling me, that if such were the case, to ask him to pay the note. i had put the paper in my pocket-book and thought no more of it until the sight of the sign brought it to my recollection, and also reminded me of my solitary dollar. of course i immediately entered the office to see the colonel. he had known me very well in new york, and was apparently delighted to see me, for he gave me a most cordial greeting. after some inquiries about friends in new york, he commenced talking about the country. "ah," he continued, "it is a glorious country. i have made two hundred thousand dollars." this was more than i could stand. i had already given him a long shake of the hand but i could not resist the impulse to shake his hand again, thinking all the time of my financial condition. so i seized his hand again and shook it vigorously, assuring him that i was delighted to hear of his good luck. we talked over the matter, and in my enthusiasm i shook his hand a third time, expressing my satisfaction at his good fortune. we passed a long time together, he dilating all the while upon the fine country it was in which to make money. at length i pulled out the note and presented it to him. i shall never forget the sudden change, from wreaths of smiles to an elongation of physiognomy, expressive of mingled surprise and disgust, which came over his features on seeing that note. he took it in his hands and examined it carefully; he turned it over and looked at its back, and then at its face again, and then, as it were, at both sides at once. at last he said in a sharp tone, "that's my signature," and began to calculate the interest; that ascertained, he paid me the full amount due. if i remember rightly he paid me $440 in spanish doubloons, but some of it may have been in gold dust. if it had not been for this lucky incident, i should have been penniless before night. the good fortune which the colonel then enjoyed has not always attended him since. the greater part of his property he lost some years afterwards, but he has always retained, and now in his seventy-eighth year[1] still retains, great energy and vigor of mind, and a manly independence of character, which have made him warm friends. in all the changes of my life his name is pleasantly associated with the payment of the note, and the timely assistance which he thus gave me. his career as commander of the well-known regiment of new york volunteers which arrived in california in march, 1847, and subsequently in the state, are matters of public history. as soon as i found myself in funds i hired a room as an office at the corner of montgomery and clay streets for one month for $300, payable in advance. it was a small room, about fifteen feet by twenty. i then put out my shingle as attorney and counsellor-at-law, and waited for clients; but none came. one day a fellow-passenger requested me to draw a deed, for which i charged him an ounce. he thought that too much, so i compromised and took half an ounce. for two weeks this was the only call i had upon my professional abilities. but i was in no way discouraged. to tell the truth i was hardly fit for business. i was too much excited by the stirring life around me. there was so much to hear and see that i spent half my time in the streets and saloons talking with people from the mines, in which i was greatly interested. i felt sure that there would soon be occasion in that quarter for my services. whilst i was excited over the news which was daily brought from the mines in the interior of the state, and particularly from the northern part, an incident occurred which determined my future career in california. i had brought from new york several letters of introduction to persons who had preceded me to the new country, and among them one to the mercantile firm of simmons, hutchinson & co., of san francisco, upon whom i called. they received me cordially, and inquired particularly of my intentions as to residence and business. they stated that there was a town at the head of river navigation, at the junction of sacramento and feather rivers, which offered inducements to a young lawyer. they called it vernon, and said they owned some lots in it which they would sell to me. i replied that i had no money. that made no difference, they said; they would let me have them on credit; they desired to build up the town and would let the lots go cheap to encourage its settlement. they added that they owned the steamer "mckim," going the next day to sacramento, and they offered me a ticket in her for that place, which they represented to be not far from vernon. accordingly i took the ticket, and on january 12th, 1850, left for sacramento, where i arrived the next morning. it was the time of the great flood of that year, and the entire upper country seemed to be under water. upon reaching the landing place at sacramento, we took a small boat and rowed to the hotel. there i found a great crowd of earnest and enthusiastic people, all talking about california, and in the highest spirits. in fact i did not meet with any one who did not speak in glowing terms of the country and anticipate a sudden acquisition of fortune. i had already caught the infection myself, and these new crowds and their enthusiasm increased my excitement. the exuberance of my spirits was marvelous. the next day i took the little steamer "lawrence," for vernon, which was so heavily laden as to be only eighteen inches out of water; and the passengers, who amounted to a large number, were requested not to move about the deck, but to keep as quiet as possible. in three or four hours after leaving sacramento, the captain suddenly cried out with great energy, "stop her! stop her!"; and with some difficulty the boat escaped running into what seemed to be a solitary house standing in a vast lake of water. i asked what place that was, and was answered, "vernon,"--the town where i had been advised to settle as affording a good opening for a young lawyer. i turned to the captain and said, i believed i would not put out my shingle at vernon just yet, but would go further on. the next place we stopped at was nicolaus, and the following day we arrived at a place called nye's ranch, near the junction of feather and yuba rivers. no sooner had the vessel struck the landing at nye's ranch than all the passengers, some forty or fifty in number, as if moved by a common impulse, started for an old adobe building, which stood upon the bank of the river, and near which were numerous tents. judging by the number of the tents, there must have been from five hundred to a thousand people there. when we reached the adobe and entered the principal room, we saw a map spread out upon the counter, containing the plan of a town, which was called "yubaville," and a man standing behind it, crying out, "gentlemen, put your names down; put your names down, all you that want lots." he seemed to address himself to me, and i asked the price of the lots. he answered, "two hundred and fifty dollars each for lots 80 by 160 feet." i replied, "but, suppose a man puts his name down and afterwards don't want the lots?" he rejoined, "oh, you need not take them if you don't want them: put your names down, gentlemen, you that want lots." i took him at his word and wrote my name down for sixty-five lots, aggregating in all $16,250. this produced a great sensation. to the best of my recollection i had only about twenty dollars left of what col. stevenson had paid me; but it was immediately noised about that a great capitalist had come up from san francisco to invest in lots in the rising town. the consequence was that the proprietors of the place waited upon me and showed me great attention. two of the proprietors were french gentlemen, named covillaud and sicard. they were delighted when they found i could speak french and insisted on showing me the town site. it was a beautiful spot, covered with live-oak trees that reminded me of the oak parks in england, and the neighborhood was lovely. i saw at once that the place, from its position at the head of practical river navigation, was destined to become an important depot for the neighboring mines, and that its beauty and salubrity would render it a pleasant place for residence. in return for the civilities shown me by mr. covillaud, and learning that he read english, i handed him some new york papers i had with me, and among them a copy of the new york "evening post" of november 13th, 1849, which happened to contain a notice of my departure for california with an expression of good wishes for my success.[2] the next day mr. covillaud came to me and in an excited manner said: "ah, monsieur, are you the monsieur field, the lawyer from new york, mentioned in this paper?" i took the paper and looked at the notice with apparent surprise that it was marked, though i had myself drawn a pencil line around it, and replied, meekly and modestly, that i believed i was. "well, then," he said, "we must have a deed drawn for our land." upon making inquiries i found that the proprietors had purchased the tract upon which the town was laid out, and several leagues of land adjoining, of general--then captain--john a. sutter, but had not yet received a conveyance of the property. i answered that i would draw the necessary deed; and they immediately dispatched a couple of vaqueros for captain sutter, who lived at hock farm, six miles below, on feather river. when he arrived the deed was ready for signature. it was for some leagues of land; a considerably larger tract than i had ever before put into a conveyance. but when it was signed there was no officer to take the acknowledgment of the grantor, nor an office in which it could be recorded, nearer than sacramento. i suggested to those present on the occasion, that in a place of such fine prospects, and where there was likely in a short time to be much business and many transactions in real property, there ought to be an officer to take acknowledgments and record deeds, and a magistrate for the preservation of order and the settlement of disputes. it happened that a new house, the frame of which was brought in the steamer, was put up that day; and it was suggested by mr. covillaud that we should meet there that evening and celebrate the execution of the deed, and take into consideration the subject of organizing a town by the election of magistrates. when evening came the house was filled. it is true it had no floor, but the sides were boarded up and a roof was overhead, and we improvised seats out of spare planks. the proprietors sent around to the tents for something to give cheer to the meeting, and, strange as it may seem, they found two baskets of champagne. these they secured, and their contents were joyously disposed of. when the wine passed around, i was called upon and made a speech. i started out by predicting in glowing colors the prosperity of the new town, and spoke of its advantageous situation on the feather and yuba rivers; how it was the most accessible point for vessels coming up from the cities of san francisco and sacramento, and must in time become the depot for all the trade with the northern mines. i pronounced the auriferous region lying east of the feather river and north of the yuba the finest and richest in the country; and i felt certain that its commerce must concentrate at the junction of those rivers. but, said i, to avail ourselves of all these advantages we must organize and establish a government, and the first thing to be done is to call an election and choose magistrates and a town council. these remarks met with general favor, and it was resolved that a public meeting should be held in front of the adobe house the next morning, and if it approved of the project, that an election should be held at once. accordingly, on the following morning, which was the 18th of january, 1850, a public meeting of citizens was there held, and it was resolved that a town government should be established and that there should be elected an ayuntamiento or town council, a first and second alcalde, (the latter to act in the absence or sickness of the former,) and a marshal. the alcalde was a judicial officer under the spanish and mexican laws, having a jurisdiction something like that of a justice of the peace; but in the anomalous condition of affairs in california at that time, he, as a matter of necessity, assumed and exercised very great powers. the election ordered took place in the afternoon of the same day. i had modestly whispered to different persons at the meeting in the new house the night before, that my name was mentioned by my friends for the office of alcalde; and my nomination followed. but i was not to have the office without a struggle; an opposition candidate appeared, and an exciting election ensued. the main objection urged against me was that i was a new comer. i had been there only three days; my opponent had been there six. i beat him, however, by nine votes.[3] on the evening of the election, there was a general gathering of people at the adobe house, the principal building of the place, to hear the official announcement of the result of the election. when this was made, some one proposed that a name should be adopted for the new town. one man suggested "yubafield," because of its situation on the yuba river; and another, "yubaville," for the same reason. a third, urged the name "circumdoro," (surrounded with gold, as he translated the word,) because there were mines in every direction round about. but there was a fourth, a solid and substantial old man, evidently of kindly domestic affections, who had come out to california to better his fortunes. he now rose and remarked that there was an american lady in the place, the wife of one of the proprietors; that her name was mary; and that, in his opinion, her name ought to be given to the town, and it should be called, in her honor, "marysville." no sooner had he made the suggestion, than the meeting broke out into loud hurrahs; every hat made a circle around its owner's head, and we christened the new town "marysville," without a dissenting voice. for a few days afterwards, the town was called both yubaville and marysville, but the latter name was soon generally adopted, and the place is so called to this day. the lady, in whose honor it was named was mrs. covillaud. she was one of the survivors of the donner party, which suffered so frightfully while crossing the sierra nevadas in the winter of 1846-7, and had been living in the country ever since that terrible time. with my notions of law, i did not attach much importance to the election, but i had a certificate of election made out and signed by the inspectors, stating that at a meeting of the residents of the district of yubaville, on the day named, an election for officers had been held, and designating the inspectors who were appointed, the number of votes that had been cast for the office of alcalde, and the number received by myself, and the number received by my opponent, and that as i had received a majority of all the votes cast, i was elected to that office. it was made out with all possible formality, and when completed, was sent to the prefect of the district. this officer, a mr. e.o. crosby, afterwards minister to one of the south american republics, wrote back approving my election, and advising me to act. his advice, under the circumstances, was a matter of some moment. the new constitution of the state had gone into effect, though it was still uncertain whether it would be recognized by congress. mr. crosby, therefore, thought it best for me to procure, in addition to my commission as alcalde, an appointment as justice of the peace; and through his kind offices, i obtained from governor burnett the proper document bearing his official seal. after my election, i went to sacramento, and on the 22d of january, 1850, was sworn into office as first alcalde of yubaville, by the judge of the court of first instance, as that was the name of the district in the certificate of election; but i was always designated, after the name of the town had been adopted, as first alcalde of marysville.[4] captain sutter, whose deed i had drawn, was a remarkable character. he was about five feet nine inches in height, and was thick-set. he had a large head and an open, manly face, somewhat hardened and bronzed by his life in the open air. his hair was thin and light, and he wore a mustache. he had the appearance of an old officer of the french army, with a dignified and military bearing. i subsequently became well acquainted with him, and learned both to respect and to pity him. i respected him for his intrepid courage, his gentle manners, his large heart, and his unbounded benevolence. i pitied him for his simplicity, which, while suspecting nothing wrong in others, led him to trust all who had a kind word on their lips, and made him the victim of every sharper in the country. he was a native of switzerland and was an officer in the swiss guards, in the service of the king of france, in 1823, and for some years afterwards. in 1834, he emigrated to america, and had varied and strange adventures among the indians at the west; in the sandwich islands, at fort vancouver, in alaska, and along the pacific coast. in july, 1839, the vessel which he was aboard of, was stranded in the harbor of san francisco. he then penetrated into the interior of california and founded the first white settlement in the valley of the sacramento, on the river of that name, at the mouth of the american river, which settlement he named helvetia. he built a fort there and gathered around it a large number of native indians and some white settlers. in 1841, the mexican government granted to him a tract of land eleven square leagues in extent; and, subsequently, a still larger concession was made to him by the governor of the department. but the governor being afterwards expelled from the country, the concession was held to be invalid. the emigrants arriving in the country after the discovery of gold proved the ruin of his fortunes. they squatted upon his land, denied the validity of his title, cut down his timber, and drove away his cattle. sharpers robbed him of what the squatters did not take, until at last he was stripped of everything; and, finally, he left the state, and for some years has been living with relatives in pennsylvania. even the stipend of $2,500, which the state of california for some years allowed him, has been withdrawn, and now in his advanced years, he is almost destitute. yet, in his days of prosperity, he was always ready to assist others. his fort was always open to the stranger, and food, to the value of many thousand dollars, was, every year, so long as he had the means, sent out by him for the relief of emigrants crossing the plains. it is a reproach to california that she leaves the pioneer and hero destitute in his old age. [1] col. stevenson was born at the commencement of the century, and is therefore now, 1893, in his ninety-fourth year. [2] see exhibit a, in appendix. [3] see exhibit b, in appendix. [4] see exhibit c, in appendix. experiences as alcalde. under the mexican law, alcaldes had, as already stated, a very limited jurisdiction. but in the anomalous condition of affairs under the american occupation, they exercised almost unlimited powers. they were, in fact, regarded as magistrates elected by the people for the sake of preserving public order and settling disputes of all kinds. in my own case, and with the approval of the community, i took jurisdiction of every case brought before me. i knew nothing of mexican laws; did not pretend to know anything of them; but i knew that the people had elected me to act as a magistrate and looked to me for the preservation of order and the settlement of disputes; and i did my best that they should not be disappointed. i let it be known that my election had been approved by the highest authority. the first case i tried was in the street. two men came up to me, one of them leading a horse. he said, "mr. alcalde, we both claim this horse, and we want you to decide which of us is entitled to it." i turned to the man who had the horse, administered an oath to him, and then examined him as to where he got the horse, of whom and when, whether he had a bill of sale, whether there was any mark or brand on the animal, and, in short, put all those questions which would naturally be asked in such a case to elicit the truth. i then administered an oath to the other man and put him through a similar examination, paying careful attention to what each said. when the examination was completed i at once decided the case. "it is very plain, gentlemen," i said, "that the horse belongs to this man (pointing to one of them) and the other must give him up." "but," said the man who had lost and who held the horse, "the bridle certainly belongs to me, he does not take the bridle, does he?" i said, "oh no, the bridle is another matter." as soon as i said this the owner of the bridle turned to his adversary and said, "what will you take for the horse?" "two hundred and fifty dollars," was the instant reply. "agreed," retorted the first, and then turning to me, he continued: "and now, mr. alcalde, i want you to draw me up a bill of sale for this horse which will stick." i, of course, did as he desired. i charged an ounce for trying the case and an ounce for the bill of sale; charges which were promptly paid. both parties went off perfectly satisfied. i was also well pleased with my first judicial experience. soon after my election i went to san francisco to get my effects; and while there i purchased, on credit, a frame house and several zinc houses, which were at once shipped to marysville. as soon as the frame house was put up i opened my office in it, and exercised not only the functions of a magistrate and justice, but also of a supervisor of the town. i opened books for the record of deeds and kept a registry of conveyances in the district. i had the banks of the river graded so as to facilitate the landing from vessels. the marshal of my court, elected at the same time with myself, having refused to act, i appointed an active and courageous person in his place, r.b. buchanan by name, and directed him to see that peace was preserved, and for that purpose to appoint as many deputies as might be necessary. he did so, and order and peace were preserved throughout the district, not only in marysville, but for miles around. as a judicial officer, i tried many cases, both civil and criminal, and i dictated the form of process suited to the exigency. thus, when a complaint was made to me by the owner of a river boat, that the steamer, which plied between marysville and sacramento, had run down his boat, by which a part of its cargo was lost, i at once dictated process to the marshal, in which the alleged injury was recited, and he was directed to seize the steamer, and hold it until further orders, unless the captain or owner gave security to appear in the action commenced by the owner of the boat, and pay any judgment that might be recovered therein. upon service of the process the captain appeared, gave the required security, and the case was immediately tried. judgment was rendered and paid within five hours after the commission of the injury. in civil cases, i always called a jury, if the parties desired one; and in criminal cases, when the offence was of a high grade, i went through the form of calling a grand jury, and having an indictment found; and in all cases i appointed an attorney to represent the people, and also the accused, when necessary. the americans in the country had a general notion of what was required for the preservation of order and the due administration of justice; and as i endeavored to administer justice promptly, but upon a due consideration of the rights of every one, and not rashly, i was sustained with great unanimity by the community. i have reported a civil case tried before me as alcalde. i will now give a few criminal prosecutions and their circumstances. one morning, about five o'clock, a man tapped at my window, and cried, "alcalde, alcalde, there has been a robbery, and you are wanted." i got up at once, and while i was dressing he told his story. nearly every one in those days lived in a tent and had his gold dust with him. the man, who proved to be gildersleeve, the famous runner, upon going to bed the previous evening had placed several pounds of gold dust in his trunk, which was not locked. in the night some one had cut through his tent and taken the gold dust. i asked him if he suspected anybody; and he named two men, and gave such reasons for his suspicion that i immediately dictated a warrant for their arrest; and in a short time the two men were arrested and brought before me. the gold dust was found on one of them. i immediately called a grand jury, by whom he was indicted. i then called a petit jury, and assigned counsel for the prisoner. he was immediately placed upon his trial, and was convicted. the whole proceeding occupied only a part of the day. there was a great crowd and much excitement, and some talk of lynching. curiously enough, my real trouble did not commence until after the conviction. what was to be done with the prisoner? how was he to be punished? imposing a fine would not answer; and, if he had been discharged, the crowd would have immediately hung him. when at san francisco, mayor geary, of that place, told me if i would send my convicts to him, with money enough to pay for a ball and chain for each one, he would put them in the chain-gang. but at that time the price of passage by steamer from marysville to san francisco was fifty dollars, which, with the expense of an officer to accompany the prisoner, and the price of a ball and chain, would have amounted to a much larger sum than the prosecution could afford; so it was clearly impracticable to think of sending him to san francisco. nor is it at all likely that the people would have consented to his removal. under these circumstances there was but one course to pursue, and, however repugnant it was to my feelings to adopt it, i believe it was the only thing that saved the man's life. i ordered him to be publicly whipped with fifty lashes, and added that if he were found, within the next two years, in the vicinity of marysville, he should be again whipped. i, however, privately ordered a physician to be present so as to see that no unnecessary severity was practiced. in accordance with this sentence, the fellow was immediately taken out and flogged; and that was the last seen of him in that region. he went off and never came back. the latter part of the sentence, however, was supererogatory; for there was something so degrading in a public whipping, that i have never known a man thus whipped who would stay longer than he could help, or ever desire to return. however this may have been, the sense of justice of the community was satisfied. no blood had been shed; there had been no hanging; yet a severe public example had been given. on another occasion a complaint was made that a man had stolen fifteen hundred dollars from a woman. he was arrested, brought before me, indicted, tried, and convicted. i had the same compunctions about punishment as before, but, as there was no other course, i ordered him to receive fifty lashes on his back on two successive days, unless he gave up the money, in which case he was to receive only fifty lashes. as soon as the sentence was written down the marshal marched the prisoner out to a tree, made him hug the tree, and in the presence of the crowd that followed, began inflicting the lashes. the man stood it for awhile without flinching, but when he had received the twenty-second lash he cried out, "stop, for god's sake, and i will tell you where the money is." the marshal stopped and, accompanied by the crowd, took the man to the place indicated, where the money was recovered; and the thief was then made to carry it back to the woman and apologize for stealing it. the marshal then consulted the sentence, and, finding that it prescribed fifty lashes at any rate, he marched the wretch back to the tree and gave him the balance, which was his due. but the case which made the greatest impression upon the people, and did more to confirm my authority than anything else, was the following: there was a military encampment of united states soldiers on bear river, about fifteen miles from marysville, known as "camp far west." one day an application was made to me to issue a warrant for the arrest of one of the soldiers for a larceny he had committed. it was stated that a complaint had been laid before the local alcalde near the camp; but that the officer in charge had refused to give up the soldier unless a warrant for that purpose were issued by me, it being the general impression that i was the only duly commissioned alcalde in the district above sacramento. on this showing i issued my warrant, and a lieutenant of the army brought the soldier over. the soldier was indicted, tried, convicted, and sentenced to be publicly whipped with the usual number of lashes, and the officer stood by and saw the punishment inflicted. he then took the soldier back to camp, where it was afterwards reported that he received an additional punishment. but before the lieutenant left me that day, and while we were dining together, he took occasion to say that, if at any time i had any trouble in enforcing the law, i had but to send him word and he would order out a company of troops to support me. this offer i permitted to become known through the town; and people said--and with what effect may be imagined--"why here is an alcalde that has the troops of the united states at his back." i have already stated that i had the banks of the yuba river graded so as to facilitate the landing from vessels. i will now mention another instance of my administration as general supervisor of the town. there were several squatters on the landing at the river, which, according to the plan of the town, was several hundred feet wide. the lots fronting on this landing being the best for business, commanded the highest prices. but on account of the squatters the owners were deprived of the benefit of the open ground of the landing in front of their property, and they complained to me. i called upon the squatters and told them that they must leave, and that if they were not gone by a certain time, i should be compelled to remove them by force, and, if necessary, to call to my aid the troops of the united states. this was enough; the squatters left, the landing was cleared, and business went on smoothly. in addition to my ordinary duties as a judicial officer and as general supervisor of the town, i acted as arbitrator in a great number of controversies which arose between the citizens. in such cases the parties generally came to my office together and stated that they had agreed to leave the matter in dispute between them to my decision. i immediately heard their respective statements--sometimes under oath, and sometimes without oath--and decided the matter at once. the whole matter was disposed of without any written proceedings, except in some instances i gave to parties a memorandum of my decision. thus on one occasion a dispute arose as to the rate of wages, between several workmen and their employer; the workmen insisting upon twelve dollars a day and the employer refusing to give more than ten. to settle the dispute they agreed to leave the matter to me. i heard their respective statements, and after stating that both of them ought to suffer a little for not having made a specific contract at the outset, decided that the workingmen should receive eleven dollars a day, with which both appeared to be well satisfied. on another occasion parties disputed as to whether freight on a box of crockery should be charged by measurement or by weight, a specific contract having been made that all articles shipped by the owner should be carried at a fixed price per hundred pounds. they agreed to leave the matter to my determination, and i settled it in five minutes. again, on one occasion a woman, apparently about fifty-six, rushed into my office under great excitement, exclaiming that she wanted a divorce from her husband, who had treated her shamefully. a few moments afterwards the husband followed, and he also wanted relief from the bonds of matrimony. i heard their respective complaints, and finding that they had children, i persuaded them to make peace, kiss, and forgive; and so they left my office arm-in-arm, each having promised the other never to do so again, amid the applause of the spectators. in this way i carried out my conception of the good cadi of the village, from which term (al cadi) my own official designation, alcalde, was derived. to make a long story short, until i was superseded by officers under the state government, i superintended municipal affairs and administered justice in marysville with success. whilst there was a large number of residents there of high character and culture, who would have done honor to any city, there were also unfortunately many desperate persons, gamblers, black-legs, thieves, and cut-throats; yet the place was as orderly as a new england village. there were no disturbances at night, no riots, and no lynching. it was the model town of the whole country for peacefulness and respect for law. and now a word about my speculations. in a short time after going to marysville and writing my name down for sixty-five town lots, property increased ten-fold in value. within ninety days i sold over $25,000 worth, and still had most of my lots left. my frame and zinc houses brought me a rental of over $1,000 a month. the emoluments of my office of alcalde were also large. in criminal cases i received nothing for my services as judge, and in civil cases the fees were small; but as an officer to take acknowledgments and affidavits and record deeds, the fees i received amounted to a large sum. at one time i had $14,000 in gold dust in my safe, besides the rentals and other property. one day whilst i was alcalde, a bright-looking lad, with red cheeks and apparently about seventeen years of age, came into the office and asked if i did not want a clerk. i said i did, and would willingly give $200 a month for a good one; but that i had written to sacramento and was expecting one from there. the young man suggested that perhaps the one from sacramento would not come or might be delayed, and he would like to take the place in the meanwhile. i replied, very well, if he was willing to act until the other arrived, he might do so. and thereupon he took hold and commenced work. three days afterwards the man from sacramento arrived; but in the meanwhile i had become so much pleased with the brightness and quickness of my young clerk that i would not part with him. that young clerk was george c. gorham, the present secretary of the united states senate. i remember him distinctly as he first appeared to me, with red and rosy cheeks. his quickness of comprehension was really wonderful. give him half an idea of what was wanted, and he would complete it as it were by intuition. i remember on one occasion he wanted to know what was necessary for a marriage settlement. i asked him why. he replied that he had been employed by a french lady to prepare such a settlement, and was to receive twenty-five dollars for the instrument. i gave him some suggestions, but added that he had better let me see the document after he had written it. in a short time afterwards he brought it to me, and i was astonished to find it so nearly perfect. there was only one correction to make. and thus ready i always found him. with the most general directions he would execute everything committed to his charge, and usually with perfect correctness. he remained with me several months, and acted as clerk of my alcalde court, and years afterwards, at different times was a clerk in my office. when i went upon the bench of the supreme court, i appointed him clerk of the circuit court of the united states for the district of california, and, with the exception of the period during which he acted as secretary of gov. low, he remained as such clerk until he was nominated for the office of governor of the state, when he resigned. through the twenty-seven years of our acquaintance, from 1850 to the present time, july, 1877, his friendship and esteem have been sincere and cordial, which no personal abuse of me could change and no political differences between us could alienate. his worldly possessions would have been more abundant had he pursued the profession of the law, which i urged him to do; and his success as a public man would have been greater, had he been more conciliatory to those who differed from him in opinion. the turner controversy. towards the end of may, 1850, william e. turner, who had been appointed judge of the eighth judicial district of the state by the first legislature which convened under the constitution, made his appearance and announced that he intended to open the district court at marysville on the first monday of the next month. we were all pleased with the prospect of having a regular court and endeavored, as far as lay in our power, to make the stay of the judge with us agreeable. i had been in the habit of receiving a package of new york newspapers by every steamer, and among them came copies of the new york "evening post," which was at that time the organ of the so-called free-soil party. when judge turner arrived, i waited on him to pay my respects, and sent him the various newspapers i had received. he had lived for years in texas, and, as it proved, was a man of narrow mind and bitter prejudices. he seems to have had a special prejudice against new yorkers and regarded a free-soiler as an abomination. i have been told, and i believe such to be the fact, that my sending him these newspapers, and particularly the "evening post," led him to believe that i was an "abolitionist"--a person held in special abhorrence in those days by gentlemen from the south. at any rate he conceived a violent dislike of me, which was destined in a short time to show itself and cause me great annoyance. what was intended on my part as an act of courtesy, turned out to be the beginning of a long, bitter, and on his part, ferocious quarrel. at that time my affairs were in a very prosperous condition, as i have already stated. i had $14,000 in gold dust, a rental of over a thousand dollars a month, and a large amount of city property constantly increasing in value. such being the case, i thought i would go east on a visit, and accordingly began making arrangements to leave. but shortly before the opening of the june term of the district court, captain sutter came to me and told me he had been sued by a man named cameron, and wished me to appear as his counsel. i answered that i was making arrangements to go east and he had better retain some one else. he replied that i ought to remain long enough to appear for him and assist his attorney, and begged of me as an act of friendship to do so. i finally consented, and deferred my departure. soon after the opening of the court, some time during the first week, the case of captain sutter was called. a preliminary motion, made by his attorney, was decided against him. mr. jesse o. goodwin, a member of the bar, sitting near, said to me that the practice act, passed at the recent session of the legislature, contained a section bearing upon the question; and at the same time handed me the act. i immediately rose, and addressing the court, remarked that i was informed there was a statutory provision applicable to the point, and begged permission to read it; and commenced turning over the pages of the act in search of it, when judge turner, addressing me and apparently irritated, said in a petulant manner;--"the court knows the law--the mind of the court is made up--take your seat, sir." i was amazed at hearing such language; but in a respectful and quiet manner stated that i excepted to the decision, and appealed, or would appeal from the order. the judge instantly replied, in a loud and boisterous manner, "fine that gentleman two hundred dollars." i replied quietly, "very well," or "well, sir." he immediately added, in an angry tone, "i fine him three hundred dollars, and commit him to the custody of the sheriff eight hours." i again replied, "very well." he instantly exclaimed, in the same violent manner, "i fine him four hundred dollars and commit him twelve hours." i then said that it was my right by statute to appeal from any order of his honor, and that it was no contempt of court to give notice of an exception or an appeal, and asked the members of the bar present if it could be so regarded. but the judge, being very ignorant of the practice of the law, regarded an exception to his decision as an impeachment of his judgment, and, therefore, something like a personal affront. and so, upon my statement, he flew into a perfect rage, and in a loud and boisterous tone cried out, "i fine him five hundred dollars and commit him twenty-four hours--forty-eight hours--turn him out of court--subpoena a posse--subpoena me." i then left the court-room. the attorney in the case accompanied me, and we were followed by the deputy sheriff. after going a few steps we met the coroner, to whom the deputy sheriff transferred me; and the coroner accompanied me to my office, and after remaining there a few moments left me to myself. on the way an incident occurred, which probably inflamed judge turner against me more than anything else that could have happened. the attorney, who was much exasperated at the conduct of the judge, said to me as we met the coroner, "never mind what the judge does; he is an old fool." i replied, "yes, he is an old jackass." this was said in an ordinary conversational tone; but a man by the name of captain powers, with whom turner boarded, happened to overhear it, and running to the court-house, and opening the door, he hallooed out, "judge turner! oh, judge turner! judge field says you are an old jackass." a shout followed, and the judge seemed puzzled whether or not he should send an officer after me, or punish his excitable friend for repeating my language. i remained in my office the remainder of the day, and many people who were present in court, or heard of what had occurred, called to see me. i immediately wrote out a full statement of everything that happened in the court-room, and had it verified by a number of persons who were eye and ear witnesses of the affair. towards evening the deputy sheriff met the judge, who asked him what he had done with me. the deputy answered that i had gone to my office and was still there. the judge said, "go and put him under lock and key, and, if necessary, put him in irons." the deputy came to me and said, "the judge has sent me to put you under lock and key; let me turn the key upon you in your own office." at this i became indignant, and asked for his warrant or commitment to hold me. he replied that he had none, that only a verbal order was given to him by the judge in the street. i then told him he must go away from me and leave me alone. he replied that, "as he was acting by the orders of the sheriff, whose deputy he was, in obeying the judge, he must do as he had been directed." he added, "i will lock the door anyway," and doing so he went off. i immediately sued out a writ of habeas corpus returnable before henry p. haun, the county judge. the writ was executed forthwith, and the same evening i was taken before the judge. there was a great crowd present. i called the sheriff to the stand and asked him if he had any writ, process, commitment, or order by which he held me in custody. he replied that he had none. i then put on the stand samuel b. mulford and jesse o. goodwin and several others, who were present in the district court where the scenes narrated had occurred, and they testified that there was nothing disrespectful in my language or manner; that i had not used an expression at which anybody could justly take offence; and that they had been utterly surprised at the conduct of the judge, which was violent and tyrannical; and that they saw no possible excuse for it. this testimony was of course of no consequence on the question presented by the habeas corpus; because, as there was no order or warrant for my arrest in the possession of the officer, i could not, under any circumstances, be held; but i wished to show my friends, who had not been present in the court-room, the facts of the case. i was of course at once discharged. but the matter did not end there. an excited crowd was present, and as i left the court-room they cheered enthusiastically. i thereupon invited them to the covillaud house, a public house in the town, and directed the keeper to dispense to them the good things of his bar. the champagne was accordingly uncorked without stint, and the best havana boxes were soon emptied of their most fragrant cigars. a bill of $290 paid the next day settled the account. whilst the boys were thus enjoying themselves, judge turner, who was not far off, entered the covillaud house, perfectly furious, and applied obscene and vile epithets to the county judge, declaring with an oath that he would teach "that fellow" that he was an inferior judge, and that the witnesses before him were a set of "perjured scoundrels" who should be expelled from the bar. similar threats were made by him in different saloons in the town, to the disgust of every one. that evening he was burned in effigy in the public plaza. i had nothing to do with that act, and did not approve of it. i did not know then, and do not know to this day who were engaged in it. he attributed it to me, however, and his exasperation towards me in consequence became a malignant fury. on the monday following, june 10th, which was the first day on which the court was held after the scenes narrated, judge turner, on the opening of the court, before the minutes of the previous session were read, and without notice to the parties, or any hearing of them, although they were present at the time, ordered that judge haun be fined fifty dollars and be imprisoned forty-eight hours for his judicial act in discharging me from arrest, under some pretence that the order of the court had been thus obstructed by him. at the same time he ordered that i should be re-imprisoned, and that mr. mulford, mr. goodwin, and myself should be expelled from the bar; myself for suing out the writ, and those two gentlemen for being witnesses on its return, under the pretence that we had "vilified the court and denounced its proceedings." judge haun paid his fine and left the court-room, and i was again taken into custody by the sheriff.[1] it happened to be the day appointed by law for the opening of the court of sessions of the county, over which the county judge presided. judge haun proceeded from the district court to the room engaged for the court of sessions, and there, in connection with an associate justice, opened that court. immediately afterwards i sued out another writ of _habeas corpus_, returnable forthwith, and whilst before the court arguing for my discharge under the writ, the sheriff entered and declared his intention of taking me out of the room, and of taking judge haun from the bench and putting us in confinement, pursuant to the order of judge turner. judge haun told the sheriff that the court of sessions was holding its regular term; that he was violating the law, and that the court must not be disturbed in its proceedings. judge turner was then informed that the court of sessions was sitting; that judge haun was on the bench, and that i was arguing before the court on a writ of habeas corpus. judge turner immediately ordered a posse to be summoned and appealed to gentlemen in the court-room to serve on it, and directed the sheriff to take judge haun and myself into custody by force, notwithstanding judge haun was on the bench, and i was arguing my case; and if necessary to put judge haun in irons--to handcuff him. soon afterwards the sheriff, with a posse, entered the room of the court of sessions, and forced me out of it, and was proceeding to seize judge haun on the bench, when the judge stepped to a closet and drew from it a navy revolver, cocked it, and, pointing it towards the sheriff, informed him in a stern manner that he was violating the law; that whilst on the bench he, the judge, could not be arrested, and that if the sheriff attempted to do so he would kill him. at the same time he fined the sheriff for contempt of court $200, and appointed a temporary bailiff to act, and directed him to clear the court-room of the disturbers. the new bailiff summoned all the bystanders, who instantly responded, and the court-room was immediately cleared. judge haun then laid his revolver on a drawer before him, and inquired if there was any business ready; for if so the court would hear it. there being none, the court adjourned. i regret to be compelled to add, that notwithstanding the manly and courageous conduct which judge haun had thus shown, no sooner was the court adjourned than he was persuaded to make a qualified apology to the district court for discharging me, by sending a communication to it, stating "that if he was guilty of obstructing the order of the court in releasing field, he did it ignorantly, not intending any contempt by so doing;" and thereupon the district court ordered that he be released from confinement, and that his fine be remitted.[2] of course there was great excitement through the town as soon as these proceedings became known. that night nearly all marysville came to my office. i made a speech to the people. afterwards some of them passed in front of turner's house, and gave him three groans. they then dispersed, and in returning home some of them fired off their pistols as a sort of finale to the proceedings of the evening. the firing was not within three hundred yards of turner's house; but he seized hold of the fact of firing, and stated that he had been attacked in his house by an armed mob. he also charged that i had instigated the crowd to attack him, but the facts are as i have stated them. there was a great deal of feeling on the part of the people, who generally sided with me; but i did nothing to induce them to violate the law or disturb the peace. even if i wished to do so, prudence and policy counselled otherwise. when turner caused the names of mulford, goodwin, and myself, to be stricken from the roll of attorneys, we, of course, could no longer appear as counsel in his court. i at once prepared the necessary papers, and applied to the supreme court of the state for a mandamus to compel him to vacate the order and reinstate us. i took the ground that an attorney and counsellor, by his admission to the bar, acquired rights of which he could not be arbitrarily deprived; that he could not, under any circumstances, be expelled from the bar without charges being preferred against him and an opportunity afforded to be heard in his defence; that the proceedings of judge turner being ex-parte, without charges preferred, and without notice, were void; and that a mandate, directing him to vacate the order of expulsion and restore us to the bar, ought to be issued immediately. in addition, to this application, i also moved for a mandamus to him to vacate the order imposing a fine and imprisonment upon me for the alleged contempt of his court, or for such other order in the premises as might be just. i took the ground, that as the order did not show any act committed which could constitute a contempt of court, it was void on its face, and should be so declared. my old friend, gregory yale, assisted me in the presentation of these motions. in deciding them, the court delivered two opinions, in which these positions were sustained. they are reported under the titles of people, ex rel. mulford et al., vs. turner, 1 cal., 143; and people, ex rel. field vs. turner, 1 cal., 152. in the first case, a peremptory writ of mandamus was issued, directed to judge turner, ordering him to reinstate us as attorneys; in the second, a writ of certiorari was issued to bring up the order imposing a fine, which was subsequently reversed and vacated, as shown in ex-parte field, 1 cal., 187. the opinions referred to were delivered by judge bennett, and are models of their kind. many years afterwards, when a somewhat similar question came before the supreme court of the united states, i was called upon to announce its judgment; and in doing so, i followed these opinions, as may be seen by reference to the case of ex-parte robinson, 19 wallace, 510. i there repeated substantially the doctrine of judge bennett, which is the only doctrine that will protect an attorney and counsellor from the tyranny of an arbitrary and capricious officer, and preserve to him his self-respect and independence. when the order for our restoration came down from the supreme court, turner refused to obey it; and wrote a scurrilous "address to the public" about us, which he published in one of the newspapers. we replied in a sharp and bitter article, signed by ourselves and five other gentlemen; and at the same time we published a petition to the governor, signed by all the prominent citizens of marysville, asking for judge turner's removal. there was a general impression in those days that judges appointed before the admission of the state into the union held their offices subject to removal by the governor. i hardly know how this impression originated, but probably in some vague notions about the powers of mexican governors. however this may be, such was the general notion, and in accordance with it, a petition for turner's removal was started, and, as i have said, was very generally signed.[3] the matter had by this time assumed such a serious character, and the judge's conduct was so atrocious, that the people became alarmed and with great unanimity demanded his deposition from office. in the article referred to as published by us, we said, after setting forth the facts, that "judge turner is a man of depraved tastes, of vulgar habits, of an ungovernable temper, reckless of truth when his passions are excited, and grossly incompetent to discharge the duties of his office." unfortunately the statement was perfectly true. he refused to obey the mandate of the supreme court, even talked of setting that court at defiance, and went around saying that every one who had signed an affidavit against him was a "perjured villain," and that as to goodwin, mulford, and field, he would "cut their ears off." he frequented the gambling saloons, associated with disreputable characters, and was addicted to habits of the most disgusting intoxication. besides being abusive in his language, he threatened violence, and gave out that he intended to insult me publicly the first time we met, and that, if i resented his conduct, he would shoot me down on the spot. this being reported to me by various persons, i went to san francisco and consulted judge bennett as to what course i ought to pursue. judge bennett asked if i were certain that he had made such a threat. i replied i was. "well," said the judge, "i will not give you any advice; but if it were my case, i think i should get a shot-gun and stand on the street, and see that i had the first shot." i replied that "i could not do that; that i would act only in self-defence." he replied, "that would be acting in self-defence." when i came to california, i came with all those notions, in respect to acts of violence, which are instilled into new england youth; if a man were rude, i would turn away from him. but i soon found that men in california were likely to take very great liberties with a person who acted in such a manner, and that the only way to get along was to hold every man responsible, and resent every trespass upon one's rights. though i was not prepared to follow judge bennett's suggestion, i did purchase a pair of revolvers and had a sack-coat made with pockets in which the barrels could lie, and be discharged; and i began to practice firing the pistols from the pockets. in time i acquired considerable skill, and was able to hit a small object across the street. an object so large as a man i could have hit without difficulty. i had come to the conclusion that if i had to give up my independence; if i had to avoid a man because i was afraid he would attack me; if i had to cross the street every time i saw him coming, life itself was not worth having. having determined neither to seek him nor to shun him, i asked a friend to carry a message to him, and to make sure that it would reach him, i told different parties what i had sent, and i was confident that they would repeat it to him. "tell him from me," i said, "that i do not want any collision with him; that i desire to avoid all personal difficulties; but that i shall not attempt to avoid him; that i shall not cross the street on his account, nor go a step out of my way for him; that i have heard of his threats, and that if he attacks me or comes at me in a threatening manner i will kill him."[4] i acted on my plan. i often met him in the streets and in saloons, and whenever i drew near him i dropped my hand into my pocket and cocked my pistols to be ready for any emergency. people warned me to look out for him; to beware of being taken at a disadvantage; and i was constantly on my guard. i felt that i was in great danger; but after awhile this sense of danger had a sort of fascination, and i often went to places where he was, to which i would not otherwise have gone. whenever i met him i kept my eye on him, and whenever i passed him on the street i turned around and narrowly watched him until he had gone some distance. i am persuaded if i had taken any other course, i should have been killed. i do not say turner would have deliberately shot me down, or that he would have attempted anything against me in his sober moments; but when excited with drink, and particularly when in the presence of the lawless crowds who heard his threats, it would have taken but little to urge him on. as it turned out, however, he never interfered with me, perhaps because he knew i was armed and believed that, if i were attacked, somebody, and perhaps more than one, would be badly hurt. i have been often assured by citizens of marysville that it was only the seeming recklessness of my conduct, and the determination i showed not to avoid him or go out of his way, that saved me. but at the same time my business was ruined. not only was i prevented, by his refusal to obey the mandate of the supreme court, from appearing as an advocate, but i could not, on account of the relation i occupied towards him, practice at all; nor could i, under the circumstances, leave marysville and make my intended visit east. having nothing else to do, i went into speculations which failed, and in a short time--a much shorter time than it took to make my money--i lost nearly all i had acquired and became involved in debt. [1] see exhibit d, in appendix. [2] see exhibit e, in appendix. [3] see exhibit f, in appendix. [4] see exhibit g, in appendix. running for the legislature. one morning about this time i unexpectedly found myself in the newspapers, nominated by my friends as a candidate for the lower house of the legislature. who the friends were that named me i did not know; but the nomination opened a new field and suggested new ideas. i immediately accepted the candidacy. judge turner had threatened, among other things, to drive me into the yuba river. i now turned upon him, and gave out that my object in wishing to go to the legislature was to reform the judiciary, and, among other things, to remove him from the district. i canvassed the county thoroughly and was not backward in portraying him in his true colors. he and his associates spared no efforts to defeat me. their great reliance consisted in creating the belief that i was an abolitionist. if that character could have been fastened upon me it would have been fatal to my hopes, for it was a term of great reproach. yuba county then comprised the present county of that name, and also what are now nevada and sierra counties. it was over a hundred miles in length and about fifty in width, and had a population of twenty-five thousand people, being the most populous mining region in the state. i visited nearly every precinct and spoke whenever i could get an audience. an incident of the canvass may not be uninteresting. i went to the town of nevada a little more than a week before the election. as i was riding through its main street a gentleman whom i had long known, general john anderson, hailed me, and, after passing a few words, said, "field, you won't get fifty votes here." i asked, "why not?" he replied, "because everybody is for mccarty, your opponent." i said, somewhat sharply, "anderson, i have come here to fight my own battle and i intend to carry nevada." he laughed and i rode on. the first man i met after reaching the hotel was captain morgan, who afterwards commanded a steamer on the bay of san francisco. after talking for some time on general topics, he asked me about a story in circulation that i was an abolitionist. i saw at once the work of enemies, and i now understood the meaning of general anderson's remark. i assured morgan that the story was entirely false, and added; "to-morrow will be sunday; everybody will be in town; i will then make a speech and show the people what kind of a man i am, and what my sentiments are on this and other subjects." accordingly, the next day, in the afternoon, when the miners from the country were in town and had nothing else to do than to be amused, i mounted a platform erected for the purpose in the main street, and commenced speaking. i soon had a crowd of listeners. i began about my candidacy, and stated what i expected to do if elected. i referred to the necessity of giving greater jurisdiction to the local magistrates, in order that contests of miners respecting their claims might be tried in their vicinity. as things then existed the right to a mule could not be litigated without going to the county seat, at a cost greater than the value of the animal. i was in favor of legislation which would protect miners in their claims, and exempt their tents, rockers, and utensils used in mining from forced sale. i was in favor of dividing the county, and making nevada the seat of the new county. i had heard of numerous measures they wanted, and i told them how many of these measures i advocated. having got their attention and excited their interest, i referred to the charge made against me of being an abolitionist, and denounced it as a base calumny. in proof of the charge i was told that i had a brother in new york who was a free-soiler. so i had, i replied, and a noble fellow he is--god bless him wherever he may be. but i added, i have another brother who is a slaveholder in tennessee, and with which one, i asked, in the name of all that is good, were they going to place me. i wondered if these "honorable" men, who sought by such littleness to defeat me, did not find out whether i did not have some other relatives,--women, perhaps, who believed in things unearthly and spiritual,--whose opinions they could quote to defeat me. shame on such tactics, i said, and the crowd answered by loud cheering. i then went on to give my views of our government, of the relation between the general government of the union and the government of the states, to show that the former was created for national purposes which the states could not well accomplish--that we might have uniformity of commercial regulations, one army and one navy, a common currency, and the same postal system, and present ourselves as one nation to foreign countries--but that all matters of domestic concern were under the control and management of the states, with which outsiders could not interfere; that slavery was a domestic institution which each state must regulate for itself, without question or interference from others. in other words, i made a speech in favor of state rights, which went home to my hearers, who were in great numbers from the south. i closed with a picture of the future of california, and of the glories of a country bounded by two oceans. when i left the platform the cheers which followed showed that i had carried the people with me. mccarty, my opponent, followed, but his speech fell flat. half his audience left before he had concluded. the election took place a week from the following monday. i remained in nevada until it was over. at the precinct in town where i had spoken, i had between three and four hundred majority, and in another precinct in the outskirts i had a majority of two to one. in the county generally i ran well, and was elected, notwithstanding the fact that i was not the nominee of any convention or the candidate of any party. the morning following the election, as i was leaving nevada, i rode by the store of general anderson, and hailing him, inquired what he thought now of my getting fifty votes in the town. "well," he replied, "it was that sunday speech of yours which did the business. mccarty could not answer it." there was one thing in the election which i regretted, and that was that i did not carry marysville; a majority of the votes of its citizens was cast for my opponent. it is true that there the greater number of gamblers and low characters of the county were gathered, but the better class predominated in numbers, and i looked with confidence to its support. my regret, however, was sensibly diminished when i learned the cause of the failure of a portion of the people to give me their votes. some few weeks previous to the day of election a man was killed in the street by a person by the name of keiger, who was immediately arrested. the person killed was about leaving the state, and owed a small debt to keiger, which he refused either to pay or to give security for its payment. exasperated by his refusal, keiger drew a pistol and shot him. i was sent for by an acquaintance of keiger to attend his examination before the local magistrate, by whom he was held for the action of the grand jury. in the afternoon of the same day a large crowd assembled in the streets, with the purpose of proceeding to the summary execution of keiger. whilst the people were in a great state of excitement i made a speech to them, begging them not to resort to violence and thus cast reproach upon the good name of marysville, but to let the law take its course, assuring them that justice would certainly be administered by the courts. my remarks were received with evident displeasure, and i am inclined to think that violence would have been resorted to had not the prisoner been secretly removed from the city and taken to sacramento. the exasperation of a large number, at this escape of their intended victim, vented itself on me, and cost me at least a hundred votes in the city. i would not have acted otherwise had i known beforehand that such would be the result of my conduct. when the civil tribunals are open and in the undisturbed exercise of their jurisdiction, a resort to violence can never be approved or excused. i witnessed some strange scenes during the campaign, which well illustrated the anomalous condition of society in the county. i will mention one of them. as i approached grass valley, then a beautiful spot among the hills, occupied principally by mr. walsh, a name since become familiar to californians, i came to a building by the wayside, a small lodging-house and drinking-saloon, opposite to which a lynch jury were sitting, trying a man upon a charge of stealing gold dust. i stopped and watched for awhile the progress of the trial. on an occasion of some little delay in the proceedings, i mentioned to those present, the jury included, that i was a candidate for the legislature, and that i would be glad if they would join me in a glass in the saloon, an invitation which was seldom declined in those days. it was at once accepted, and leaving the accused in the hands of an improvised constable, the jury entered the house and partook of the drinks which its bar afforded. i had discovered, or imagined from the appearance of the prisoner, that he had been familiar in other days with a very different life from that of california, and my sympathies were moved towards him. so, after the jurors had taken their drinks and were talking pleasantly together, i slipped out of the building and approaching the man, said to him, "what is the case against you? can i help you?" the poor fellow looked up to me and his eyes filled with great globules of tears as he replied. "i am innocent of all i am charged with. i have never stolen anything nor cheated any one; but i have no one here to befriend me." that was enough for me. those eyes, filled as they were, touched my heart. i hurried back to the saloon; and as the jurors were standing about chatting with each other i exclaimed, "how is this? you have not had your cigars? mr. bar-keeper, please give the gentlemen the best you have; and, besides, i added, let us have another 'smile'--it is not often you have a candidate for the legislature among you." a laugh followed, and a ready acceptance was given to the invitation. in the meantime my eyes rested upon a benevolent-looking man among the jury, and i singled him out for conversation. i managed to draw him aside and inquired what state he came from. he replied, from connecticut. i then asked if his parents lived there. he answered, with a faltering voice, "my father is dead; my mother and sister are there." i then said, "your thoughts, i dare say, go out constantly to them; and you often write to them, of course." his eyes glistened, and i saw pearl-like dew-drops gathering in them; his thoughts were carried over the mountains to his old home. "ah, my good friend," i added "how their hearts must rejoice to hear from you." then, after a short pause, i remarked, "what is the case against your prisoner? he, too, perhaps, may have a mother and sister in the east, thinking of him as your mother and sister do of you, and wondering when he will come back. for god's sake remember this." the heart of the good man responded in a voice which, even to this day--now nearly twenty-seven years past--sounds like a delicious melody in my ears: "i will do so." passing from him i went to the other jurors, and, finding they were about to go back to the trial, i exclaimed, "don't be in a hurry, gentlemen, let us take another glass." they again acceded to my request, and seeing that they were a little mellowed by their indulgence, i ventured to speak about the trial. i told them that the courts of the state were organized, and there was no necessity or justification now for lynch juries; that the prisoner appeared to be without friends, and i appealed to them, as men of large hearts, to think how they would feel if they were accused of crime where they had no counsel and no friends. "better send him, gentlemen, to marysville for trial, and keep your own hands free from stain." a pause ensued; their hearts were softened; and, fortunately, a man going to marysville with a wagon coming up at this moment, i prevailed upon them to put the prisoner in his charge to be taken there. the owner of the wagon consenting, they swore him to take the prisoner to that place and deliver him over to the sheriff; and to make sure that he would keep the oath, i handed him a "slug," a local coin of octagonal form of the value of fifty dollars, issued at that time by assayers in san francisco. we soon afterwards separated. as i moved away on my horse my head swam a little, but my heart was joyous. of all things which i can recall of the past, this is one of the most pleasant. i believe i saved the prisoner's life; for in those days there was seldom any escape for a person tried by a lynch jury. the expenses of the election were very great. it was difficult to interest the miners in it; most of them had come to the country in the hope of improving their fortunes in one or two years, and then returning to "the states." it was, therefore, a matter of little moment to them who were chosen members of the coming legislature. party lines were not regarded among them, and party questions could not draw many of them from their labors. as i was an independent candidate, not supported by any party, i had to bear the whole expenses of the campaign. how great those expenses were may be imagined from the following bill, one of a large number sent to me after the election. i had told the saloon-keepers in the vicinity of the polling places in the different precincts to be liberally disposed towards my friends on the day of election. they took me literally at my word, as this bill from the keeper of a saloon where the polls were opened in downieville precinct will show: mr. s.j. field, to orleans house. to 460 drinks................................ $230 00 275 cigars................................ 68 75 ----- downieville, _october 9th, 1850_. $298 75 [endorsed:] "we hereby certify that the within account is correct. "p.l. moore. "wm. s. spear." "received payment of the within bill in full from stephen j. field. "j. stratman. "_october 14th, 1850_." the turner controversy continued it was not until after my election that judge turner paid any attention to the mandate of the supreme court commanding him to vacate his order of expulsion against myself and messrs. goodwin and mulford, and to restore us to the bar. the mandate was issued on the fourth of july, and was served on the judge on the sixteenth. he immediately and publicly declared that he would not obey it, but would stand an impeachment first. whilst attending the supreme court on the application for the writ, mr. goodwin, mr. mulford, and myself, were admitted as attorneys and counsellors of that court, and that admission under its rules entitled us to practice in all the courts of the state. the effect of this, which re-instated us in the district court, he determined to defeat. he accordingly directed the sheriff of the county to notify us to show cause, before the court in sutter county, why we should not be again expelled from the bar for the publication of the article in the placer times, to which i have referred, written in reply to his attack on us in his "address to the public." the order was dated on the fourth of october, and was served on the eighth, and required us to appear on the first thursday of the month, which was the third. as the time for appearance was previous to the day of service and to the date of the order, no attention was paid to it. the judge, however, proceeded, and on the eleventh of the month made another order of expulsion. after the adjournment of the court, he discovered his blunder, and at once issued another direction to the sheriff to notify us that the last order of expulsion was suspended until the twenty-eighth of october, and to show cause on that day why we should not be again expelled. in the meantime, the judge made no concealment of his purposes, but publicly declared in the saloons of the town that if we did not appear upon this second notice, he would make an order for our expulsion, and if we did appear, he would expel us for contempt in publishing the reply to his article, which he termed a false and slanderous communication. we knew, of course, that it would be useless to appear and attempt to resist his threatened action; still we concluded to appear and put in an answer. accordingly, on the day designated, we presented ourselves before the court in sutter county. i was the first one called upon to show cause why i should not be again expelled. i stated that i was ready, and first read an affidavit of one of the associate justices of the court of sessions, to show that the judge had declared his purpose to expel myself and the other gentlemen in any event, and that it was an idle ceremony to call upon us to show cause against such threatened action. as soon as it was read, the judge declared that it was not respectful and could not be received. i then began to read my answer to the order to show cause, but was stopped when i had read about one half of it, and was told that it was not respectful and could not be received. i then requested permission to file it, but my request was refused. mr. mulford being called upon to show cause why he should not be expelled, began to read an answer, but was stopped after reading a few lines. his answer was respectful, and was substantially to the effect that he had been admitted as attorney and counsellor in the supreme court on the previous july, and was thus entitled to practice in all the courts of the state; that the communication in the placer times was written in reply to an article of the judge, and that he was ready at the proper time and place to substantiate its truth; and he protested against the judge's interfering in the matter in the manner indicated in the notice. mr. goodwin being called upon, took in his answer substantially the same grounds as mr. mulford. immediately after mr. goodwin took his seat, without a moment's hesitation, the judge made an order that his previous order of the eleventh of october, expelling us, should be confirmed, and that the order should be published in the sacramento times and the san francisco herald. i immediately took the proper steps to obtain another mandate from the supreme court to vacate this second expulsion; and also to attach the judge for non-compliance with the original mandate, the first order of expulsion still being unvacated on the records of the court. at the january term, 1851, the applications to the court in both cases were decided, and they are reported in the 1st california reports, at pages 189 and 190. in the attachment case, the court denied the application on the ground that no motion had been made by us or any one on our behalf to cause the original order of expulsion to be vacated, and that the judge had, in the proceedings to expel us, substantially recognized us as re-instated. in the other case, the court decided that the proceedings to re-expel us were irregular, and directed an alternative writ to issue, commanding the judge to vacate the order and to permit us to practice in all the courts of the district, or to show cause to the contrary, at the next term. no cause was ever shown; and thus ended the attempts of an ignorant, malicious, and brutal judge to keep us out of the profession of our choice. mr. goodwin has since held many positions of honor and trust in the state. he was elected district attorney at the same time that i was elected to the legislature, and afterwards was judge of yuba county, and is now (1877) a member of the state senate. mr. mulford was afterwards and until his death a successful practitioner at the bar of marysville, and was in all the affairs of life respected as a high-spirited and honorable man. but with judge turner i have not yet done. i have a long story still to relate with respect to him. after my election to the legislature was ascertained, he became exceedingly solicitous to prevent in advance my exerting any influence in it. he expected that i would attack him, and endeavor to secure his impeachment, and he wanted to break me down if possible. he accordingly published a pamphlet purporting to be a statement of the charges that i preferred against him, which was, however, little else than a tirade of low abuse of myself and the editor of the marysville herald, in the columns of which the conduct of the judge had been the subject of just criticism and censure. there was nothing in the miserable swaggering billingsgate of the publication which merited a moment's notice, but as in one passage he stated that he had attempted to chastise me with a whip, and that i had fled to avoid him, i published in the marysville herald the following card: a card. judge william e. turner, in a "statement" published over his signature on the 12th instant, asserts that he attempted to chastise me with a switch, and that i fled to avoid him. this assertion is a _shameless lie_. i never, to my recollection, saw judge turner with a switch or a whip in his hand. he has made, as i am informed, many threats of taking personal vengeance on myself, but he has never attempted to put any of them into execution. i have never avoided him, but on the contrary have passed him in the street almost every day for the last four months. when he attempts to carry any of his threats into execution, i trust that i shall not forget, at the time, what is due to myself. judge turner says he holds himself personally responsible in and under all circumstances. this he says _in print_; but it is well understood in this place that he has stated he should feel bound by his oath of office to endeavor to obtain an indictment against any gentleman who should attempt to call him to account. shielded behind his oath of office he has displayed his character by childish boasts of personal courage and idle threats of vengeance. stephen j. field. marysville, _dec. 21st, 1850_. there were also annexed to the publication of turner, letters from different persons expressive of their opinion of his general bearing on the bench and courtesy to them. among these was one from john t. mccarty, the candidate against me at the recent election, in which he spoke in high terms of the judge's conduct on the bench, and assailed me as his calumniator, applying to me sundry coarse epithets. in answer to this letter i published in the herald the following card: john t. mccarty. john t. mccarty, in a letter to judge william e. turner, dated the 22d of november, takes occasion to apply several vile epithets to myself, and uses the following language to judge turner: "having been present at the first term of your court ever held in this district, and most of your courts since that time, and being familiar with almost every decision and your entire conduct upon the bench, i take pleasure in saying that i never have practiced before any court where there was so great a dispatch of business, so much order and general satisfaction rendered by the rules and decisions of the court, and that, notwithstanding the base denunciations of your enemies, a large majority of the people who have attended your courts approve and sustain your positions and decisions." during the session of the district court, at its first term, this same john t. mccarty was called before the county judge to give his testimony on the return of a writ of _habeas corpus_, and then he testified "_that the conduct of judge turner on the bench was the most outrageous he had ever witnessed in any court in which he had practiced;" and the tenor and effect of his whole testimony was in the highest degree condemnatory of the conduct of judge turner_. one of two things follows: if the statement in the letter be true, then john t. mccarty was guilty of perjury before the county judge; but if he testified to the truth, then his statement in the letter is false. in the one case he is a liar and in the other a perjured scoundrel. thus convicted out of his own mouth, his vile epithets respecting myself are not worth a moment's consideration. stephen j. field. marysville, _dec. 21st, 1850_. on my return from the legislature, and afterwards, this same mccarty was in my presence the most abject and humble wretch i knew in marysville. he almost piteously begged recognition by me, and was ready to go down on his knees for it. he was a blustering miscreant, full of courage where no force was required, and ready to run at the first appearance of a fight. he was one of a class, all of whom are alike, in whom bluster, toadyism, and pusillanimity go in concert, and are about equally developed in degree. life in the legislature immediately after the election i commenced the preparation of a bill relating to the courts and judicial officers of the state, intending to present it early in the session. the legislature met at san jose on the first monday of january, 1851, and i was placed on the judiciary committee of the house. my first business was to call the attention of the committee to the bill i had drawn. it met their approval, was reported with a favorable recommendation, and after a full discussion was passed. its principal provisions remained in force for many years, and most of them are retained in the code, which went into effect in january, 1873. it created eleven judicial districts and defined the jurisdiction and powers of every judicial officer in the state, from a supreme judge to a justice of the peace. it provided that the then incumbent district judges should continue to be the judges of the new districts according to their respective numbers. at the same time i introduced a bill dividing the county of trinity, and creating that of klamath; and also a bill dividing the county of yuba, and creating that of nevada; and i so arranged it that out of trinity and klamath a new eighth judicial district was created, and out of yuba, nevada, and sutter a tenth judicial district. thus turner, being judge of the eighth district, was sent to the then comparative wilderness of trinity and klamath; and the tenth district was to have a new judge. after this bill was passed i presented petitions from the citizens of yuba county, and of that part which now constitutes nevada county, praying for the impeachment of turner, and his removal from office, charging as grounds for it his incompetency from ignorance to discharge its duties, his arbitrary and tyrannical conduct towards the county judge and members of the marysville bar, the particulars of which i have related, his contemptuous treatment of the writ of _habeas corpus_, and his general immoral conduct. a committee was thereupon appointed to which the petitions were referred, with power to send for persons and papers. the testimony taken by them fully established the charges preferred. indeed, there was no serious attempt made to refute them. the only evidence offered in behalf of the judge was that of a few persons who testified that they had been treated by him with courtesy in some instances and that good order had been maintained in court when they were present. there is no doubt that the impeachment would have been ordered but for a strong desire of the members to bring the session to a close, and a report which had obtained credence, that after the passage of the court bill, by which turner was sent out of the eighth district, i was content to let the question of impeachment be indefinitely postponed. the testimony taken was reported by the committee on the 15th of april. his impeachment would have required a trial by the senate, which would have prolonged the session at least a month, and to this members were much averse. parties came to me and said, "judge, what's the use of pressing this matter. you have sent turner where there are only grizzly bears and indians; why not let him remain there? he can do no harm there." i replied that he was not fit to be a judge anywhere, and i refused assent to a postponement of the matter. afterwards, when the vote was about to be taken, a senator and a personal friend of turner, misinterpreting some expressions of mine that i desired to bring the matter to a speedy close, privately stated to members of the house that i had declared myself satisfied by the passage of the court bill and was willing to let the impeachment be dropped, it being understood that this course would not be taken as a sanction of the judge's conduct. to my astonishment, members who had said only half an hour before that they should vote for the impeachment now voted for an indefinite postponement, which was carried by three votes--fifteen to twelve. i did not vote, and three members who strongly favored the impeachment were absent at the time. seven of the members who voted for the indefinite postponement afterwards informed me that they had done so under the impression that such a disposition of the matter would be satisfactory to me, and that if a direct vote had been taken on the charges they should have voted for the impeachment. here the matter ended; i did not pursue it. turner did not go back to marysville and i had no further trouble with him.[1] to understand fully the legislation with which i was connected, and its effect upon the state, one must be familiar with the history of the country and the condition of its people. in addition to the act concerning the courts and judicial officers referred to, i took up the code of civil procedure, as reported by the commissioners in new york, remodelled it so as to adapt it to the different condition of things and the different organization of the courts in california, and secured its passage. it became what was known as the california civil practice act, and was afterwards adopted in nevada and in the territories west of the rocky mountains. i also took up the code of criminal procedure, as reported by the same commissioners, and remodelled that in the same way and secured its passage. it constituted what was afterwards known as the california criminal practice act, and was also adopted in the state and territories mentioned. the amount of labor bestowed upon these acts will be appreciated when i state that i recast, in the two, over three hundred sections, and added over one hundred new ones. i devoted so much attention and earnestness to the work, that in a short time the legislature placed implicit confidence in everything relating to the judiciary which i recommended. the criminal practice act, for instance, remodelled as stated, consisting of over six hundred sections, was never read before the legislature at all. the rules were suspended and the bill read by its title and passed. when it came before the governor, on the last day of the session, he said he could not sign it without reading it, and it was too late for him to do that. i represented to him that its passage was essential to secure the harmonious working of laws already passed. turning to me he said, "you say it is all right?" i replied, "yes;" and thereupon he signed it. i have already stated that i moved turner's impeachment. after the testimony was taken i addressed the house upon the subject. in reply to my remarks a member, by the name of b.f. moore, from tuolumne county, took occasion to make an abusive attack on me. it was the common practice in those days to go armed. of the thirty-six members of which the assembly then consisted, over two-thirds never made their appearance without having knives or pistols upon their persons, and frequently both. it was a thing of every-day occurrence for a member, when he entered the house, before taking his seat, to take off his pistols and lay them in the drawer of his desk. he did it with as little concern and as much a matter of course, as he took off his hat and hung it up. nor did such a thing excite surprise or comment. but when mr. moore rose to reply to me, he first ostentatiously opened his drawer, took out his revolvers, cocked them, and laid them in the open drawer before him. he then launched out into a speech of the most opprobrious language, applying to me offensive epithets, and frequently interspersing his remarks with the declaration that he was responsible for what he said, both there and elsewhere. it is difficult for me to describe the indignation i felt at this outrageous assault and the manner in which it was made. its very fierceness made me calm, as it is said that a tempest at sea is sometimes so violent as to still the waves. so when i came to make my rejoinder, i answered only such portions of his speech as attempted argument, and made no allusion to the personal language he had used towards me. but as soon as the vote was had on the question of postponing the impeachment, i took measures to call him to account. for this purpose i applied to mr. samuel a. merritt, a member from mariposa county, to carry a note from me to him, calling upon him to apologize for his offensive conduct or give me the satisfaction which it was understood one gentleman had the right to demand from another. at that time it was generally supposed that the constitutional provision in regard to duelling was self-operative, and that any person who either sent or accepted a challenge, or acted as a second to one who thus offended, would _ipso facto_ be disqualified from afterwards holding any public office. upon this understanding of the law, mr. merritt, with many expressions of regard for me and regret at the law, declined to carry the note. i then applied to mr. richardson, also a member, but he declined for the same reason. i was afraid, as matters stood, that i could not get anybody to act for me, and i did not know to whom to apply or what to do. whilst thinking the matter over, i happened, about nine o'clock in the evening, to walk into the senate chamber, and there found mr. david c. broderick, afterwards united states senator, sitting at his desk writing. he was at that time president _pro tem._ of the senate. i had known him for some time, but not intimately; we were merely bowing acquaintances. as i entered he looked up and said, "why, judge, you don't look well, what is the matter?" i answered that i did not feel well, for i had not a friend in the world. he replied, "what is it that worries you?" i then related to him everything that had happened, giving the particulars of the gross and violent assault upon my character, and stated that i was determined, at all hazards, to call moore to account. mr. broderick, without hesitation, said, "my dear field, i will be your friend in this matter; go and write at once a note to moore, and i will deliver it myself." i accordingly sat down at an adjoining desk and wrote him a note, the purport of which was that i required him either to make a public retraction of his insulting language in the legislature, or to give me the satisfaction i had a right to demand. broderick approved of its terms and at once proceeded to deliver it. when he called on moore and presented it, the latter said he expected to be a candidate for congress before the coming convention, and he could not accept a challenge because it would disqualify him under the constitution from holding the office. but at the same time he observed that he was willing to meet me at any time and place; in other words, that he had no objection to a street fight. broderick replied that a street fight was not exactly the thing among gentlemen; but that if moore would do no better, a street fight there should be; and thereupon named a time and place when and where i would be found the next morning. within an hour afterwards moore changed his mind, and informed mr. broderick that drury baldwin, another member of the house, would act as his friend, and give a reply to my note the next morning. in anticipation of a possible collision, mr. broderick took me out early the following morning to try my skill in the use of a pistol. i tried a navy revolver and succeeded in hitting a knot on a tree, at a distance of thirty yards, three times out of five. broderick declared himself satisfied, and i then urged upon him the necessity of bringing the matter to a speedy issue. in all this he concurred, and before the meeting of the house, called upon baldwin for an answer to my note. baldwin replied that his principal had made up his mind to do nothing further in the matter. "then," said broderick, "as soon as the house meets, judge field will arise in his seat and refer to the attack on him and to the language of moore, that he held himself responsible for what he said, and state that respect for the dignity of the house had prevented him from replying to the attack at the time in the terms it deserved; that he had since demanded satisfaction of moore for his language, and that moore had refused to respond, and will thereupon pronounce him a liar and a coward." "then," said baldwin, "judge field will get shot in his seat." "in that case," rejoined broderick, "there will be others shot too." mr. broderick soon afterwards informed me of his conversation with baldwin, and asked me if i would act as he had stated i would. "most certainly," i replied; "never fear for me; i will meet the case as it should be met." accordingly, when the house opened, i took my seat at my desk as usual. looking around i saw that broderick was seated near me, and behind him were eight or nine of his personal friends, all armed to the teeth and ready for any emergency. in the meantime, and just before the house met, general john e. addison, who had found out what was going on and knew the seriousness of the affair, called on moore, who was his friend, and urged him to retract what he had said and make a suitable apology, and for that purpose drew up a document for him to read to the house, but of this i was not at the time informed. as soon as the journal was read i rose in my seat and said, "mr. speaker." at the same moment moore rose in his seat and said, "mr. speaker." the speaker recognized moore first; and moore thereupon proceeded to read the written apology prepared by addison for his conduct and language to me. it was full, ample, and satisfactory; and of course with that the matter ended. from that time forward to the end of the session i had no further trouble with any one. [1] see exhibit h, in appendix. friendship for david c. broderick. the narrative which i have given of my difficulty with moore explains how broderick befriended me at a very trying time. but that was not the only occasion on which he befriended me. when i came to san francisco after the adjournment of the legislature, in may, 1851, i went several times to see him at the hotel where he stopped. on one occasion in the evening, while we were in the saloon of the hotel, he asked me to take a glass of wine with him. we stepped up to the bar and were about drinking, when he suddenly threw himself before me and with great violence pushed me out of the room. the proceeding was so sudden and unexpected that i was astonished and for a moment indignant. i demanded an explanation, saying "what does this mean, mr. broderick?" he then told me that while we were standing at the bar he had noticed vi.--or to give his full name, vicesimus--turner, a brother of the judge, a man of desperate character, come into the bar-room, throw back his spanish cloak, draw forth a navy revolver, and level it at me. seeing the movement, he had thrown himself between me and the desperado and carried me off. these good offices on the part of mr. broderick filled me with a profound sense of gratitude. for years afterwards i thought and felt as if there was nothing i could do that would be a sufficient return for his kindness. on his account i took much greater interest in political matters than i otherwise should. in order to aid him in his aspirations for election to the united states senate, upon which he had set his heart, i attended conventions and gave liberally, often to my great inconvenience, to assist the side to which he belonged. to many persons it was a matter of surprise that i should take such an interest in his success and through good and evil report remain so constant and determined in my support of him; but the explanation lies in the circumstances i have narrated and the brave manner in which he had stood by me in a most critical moment of my life. i regret to state that this friendship was ever broken. it was not by me; but broken it was. shortly after mr. broderick was elected to the senate, he quarrelled with mr. buchanan over appointments to office in california; and when he returned to the state, he expressed a good deal of hostility to the administration. in that hostility i did not participate, and he complained of me for that reason. i was then spoken of throughout the state as a probable candidate for the bench, and he announced his opposition to my nomination. i made no complaints of his conduct, but was much hurt by it. my nomination and election soon afterwards removed me from the sphere of politics. i seldom met him after my election, and never had any conversation with him. though he was offended at my failure to take sides with him in his controversy with the president, and our intimacy ceased, i could never forget his generous conduct to me; and for his sad death there was no more sincere mourner in the state. legislation secured and beginning a new life. my legislative career was not without good results. i drew, as already stated, and carried through the legislature a bill defining the powers and jurisdiction of the courts and judicial officers of the state; and whilst thus doing good, i also got rid of the ignorant and brutal judge of our district who had outraged my rights, assaulted my character, and threatened my life. i also, as i have mentioned, introduced bills regulating the procedure in civil and criminal cases, remodelled with many changes from the codes of civil and criminal procedure reported by the commissioners of new york; and secured their passage. in the civil practice act i incorporated provisions making the most liberal exemptions from forced sale of the personal property of a debtor, including not merely a limited amount of household furniture, and provisions sufficient for individual or family use for one month, but also the instruments or tools by which he earned his livelihood. the exemptions embraced necessary household and kitchen furniture, wearing apparel, beds and bedding of the debtor, whatever his calling; and also the farming utensils and implements of husbandry of the farmer, two beasts of burden employed by him, and one cart or wagon; the tools and implements of a mechanic or artisan necessary to carry on his trade; the instruments and chests of a surgeon, physician, surveyor, and dentist; the law libraries of an attorney and counsellor; the cabin or dwelling of a miner, and his pick, rocker, wheelbarrow, and other implements necessary to carry on mining operations; two oxen, two horses or two mules and their harness, and one cart or wagon of the cartman, hackman, or teamster; and one horse with vehicle and harness and other equipments used by a physician, surgeon, or minister of the gospel in making his professional visits; and all arms and accoutrements required by law to be kept by any person. i never could appreciate the wisdom of that legislation which would allow a poor debtor to be stripped of all needed articles of his household and of the implements by which alone he could earn the means of supporting himself and family and of ultimately discharging his obligations. it has always seemed to me that an exemption from forced sale of a limited amount of household and kitchen furniture of the debtor, and of the implements used in his trade or profession, was not only the dictate of humanity, but of sound policy. i also incorporated a provision into the civil practice act respecting suits for mining claims, which was the foundation of the jurisprudence respecting mines in the country. the provision was that in actions before magistrates for such claims, evidence should be admitted of the usages, regulations, and customs prevailing in the vicinity, and that such usages, regulations, and customs, when not in conflict with the constitution and laws of the state, or of the united states, should govern the decision of the action. at this time suits for mining claims, the mines being confessedly on the property of the united states, were brought upon an alleged forcible or unlawful detainer. this rule, thus for the first time adopted by legislative enactment, was soon extended to actions for such claims in all courts, and has since been adopted in all the states and territories west of the rocky mountains and substantially by the legislation of congress. simple as the provision is, it solved a difficult problem. i also advocated and aided the passage of the homestead exemption bill. that bill was introduced by mr. g.d. hall, a member from el dorado, and now a resident of san francisco. it provided for an exemption of the homestead to the value of $5,000. an effort was made to reduce the amount to $3,000, and i think i rendered some aid in defeating this reduction, which has always been to me a source of great gratification. i also secured the passage of an act concerning attorneys and counsellors-at-law, in which i incorporated provisions that rendered it impossible for any judge to disbar an attorney in the arbitrary manner in which judge turner had acted towards me, without notice of the charges against him and affording him an opportunity to be heard upon them. i also introduced a bill creating the counties of nevada and klamath, the provisions of which were afterwards incorporated into a general bill which was passed, dividing the state into counties and establishing the seats of justice therein, and by which also the county of placer was created. i drafted and secured the passage of an act concerning county sheriffs, in which the duties and responsibilities of those officers, not only in the execution of process and the detention of prisoners, but as keepers of the county jail, were declared and defined; also an act concerning county recorders, in which the present system of keeping records was adopted. this latter act, though drawn by me, was introduced by mr. merritt, of mariposa, but he does not hesitate to speak publicly of my authorship of it. i also prepared a bill concerning divorces, which was reported from the judiciary committee as a substitute for the one presented by mr. carr, of san francisco, and was passed. in this act, aside from the ordinary causes of adultery, and consent obtained by force or fraud, for which divorces are granted, i made extreme cruelty and habitual intemperance, wilful desertion of either husband or wife for a period of two years, and wilful neglect of the husband to provide for the wife the common necessaries of life, having the ability to provide the same, for a period of three years, also causes of divorce. i also drew the charters of the cities of marysville, nevada, and monterey, which were adopted--that of monterey being reported by the judiciary committee as a substitute for one introduced by a member from that district. other bills drawn or supported by me were passed, the provisions of which are still retained in the laws of the state. but notwithstanding all this, when i turned my face towards marysville i was, in a pecuniary sense, ruined. i had barely the means to pay my passage home. my ventures, after my expulsion from the bar, in june, 1850, had proved so many maelstroms into which the investments were not only drawn but swallowed up. my affairs had got to such a pass that before i left marysville for the legislature i felt it to be my duty to transfer all my real property to trustees to pay my debts, and i did so. and now when i stepped upon the landing in marysville my whole available means consisted of eighteen and three-quarter cents, and i owed about eighteen thousand dollars, the whole of which bore interest at the rate of ten per cent. a month. i proceeded at once to the united states hotel, kept by a mr. peck, who had known me in the days of my good fortune. "my dear mr. peck," i said, "will you trust me for two weeks' board?" "yes," was the reply, "and for as long as you want." "will you also send for my trunks on the steamer, for i have not the money to pay the carman." "certainly," the good man added, and so the trunks were brought up. on the next day i looked around for quarters. i found a small house, thirty feet by sixteen, for an office, at eighty dollars a month, and took it. it had a small loft or garret, in which i placed a cot that i had purchased upon credit. upon this cot i spread a pair of blankets, and used my valise for a pillow. i secured a chair without a back for a wash-stand, and with a tin basin, a pail, a piece of soap, a toothbrush, a comb, and a few towels, i was rigged out. i brought myself each day the water i needed from a well near by. i had an old pine table and a cane-bottomed sofa, and with these and the bills which had passed the legislature, corrected as they became laws, and the statutes of the previous session, i put out my sign as an attorney and counsellor-at-law, and began the practice of my profession. soon afterwards i found my name mentioned as a candidate for the state senate. the idea of returning to the legislature as a senator pleased me. the people of the county seemed to favor the suggestion. accordingly i made a short visit to neighboring precincts, and finding my candidacy generally approved i went to work to make it successful. at the election of delegates to the county convention, which was to nominate candidates, a majority was returned in my favor. several of them being unable to attend the convention, which was to be held at downieville, a distance of about seventy miles from marysville, sent me their proxies made out in blank to be filled with the name of any one whom i might designate. to one supposed friend i gave ten proxies, to another five, and to a third two. when the members met, just previous to the assembling of the convention, it was generally conceded that i had a majority of the delegates. but i had a new lesson in manipulation to learn. just before the opening of the convention my supposed friend, who had the ten proxies, was approached by the other side, and by promises to give the office of sheriff to his partner--an office supposed to be worth thirty thousand a year--his ten votes were secured for my opponent. the one to whom i had given five proxies was promised for those votes the county judgeship. so when the convention voted, to my astonishment and that of my friends, fifteen of my proxies were cast for my opponent, joseph c. mckibbin, afterwards a member of congress, who acted so fearlessly when the kansas question came up. i was accordingly beaten by two votes. for the moment i was furious, and hunted up the man who had held my ten proxies, and had been seduced from my support. when i found him in the room of the convention, i seized him and attempted to throw him out of the window. i succeeded in getting half his body out, when bystanders pulled me back and separated us. this was fortunate for both of us; for just underneath the window there was a well or shaft sunk fifty feet deep. the following morning i left downieville, returned to my office and loft at marysville, and gave my attention to the practice of the law. my business soon became very large; and, as my expenses were moderate, within two years and a half i paid off all my indebtedness, amounting with the accumulations of interest to over thirty-eight thousand dollars. part of this amount was paid by a surrender of the property mortgaged, or a sale of that previously assigned, but the greater part came from my earnings. i paid every creditor but one in full; to each i gave his pound of flesh, i mean his interest, at ten per cent. a month. i never asked one of them to take less than the stipulated rate. the exceptional creditor was mr. berry, a brother lawyer, who refused to receive more than five per cent. a month on a note he held for $450. by this time i had become so much interested in my profession as to have no inclination for office of any kind. on several occasions i was requested by influential party leaders to accept a nomination for the state senate, but i refused. i am inclined to think that i had for some time a more lucrative practice than any lawyer in the state, outside of san francisco. no such fees, however, were paid in those days as have been common in mining cases since the discovery of the silver mines of nevada and the organization of great corporations to develop them. the bar of marysville during this period, and afterwards while i remained in that city--which was until october, 1857--was a small, but a very able body of men. many of its members have since attained distinction and held offices of honor and trust. richard s. mesick, who settled there in 1851, became a state senator, and after his removal to nevada, a district judge of that state. he ranks now among the ablest lawyers of the coast. charles h. bryan, who settled there the same year, was an eloquent speaker, and in his forensic contests gave great trouble to his opponent whenever he got at the jury. he was on the supreme court of the state for a short period, under the appointment of governor bigler. jesse o. goodwin, of whom i have already spoken, settled in marysville in 1850. he was a ready speaker, and sometimes rose to genuine eloquence. he was distinguished in criminal cases. as already stated, he was elected district attorney in 1850, and afterwards became county judge, and is now state senator. gabriel n. swezy, who settled there in 1850, was learned in his profession, and quick of apprehension. few lawyers could equal him in the preparation of a brief. he afterwards at different times represented the county in the assembly and the senate of the state. william walker, who afterwards figured so conspicuously in the filibustering expeditions to nicaragua, and was called by his followers "the grey-eyed man of destiny," had an office in marysville in 1851 and '52. he was a brilliant speaker, and possessed a sharp but not a very profound intellect. he often perplexed both court and jury with his subtleties, but seldom convinced either. john v. berry, who came to marysville from the mines in 1851, was a fine lawyer, deeply read in the law of adjudged cases. he died in 1853 from poison given to him in mistake by a druggist. edward d. wheeler, who came there in 1850, and thomas b. reardon, who came in 1853, were both men of strong minds. mr. wheeler represented yuba county at one time in the senate, and is now the district judge of the nineteenth district, at san francisco. he is regarded as among the ablest and best of the state judges. mr. reardon has been a district judge for some years in the fourteenth district, greatly respected by the profession for his ability and learning. isaac s. belcher, who came to marysville at a later period--in 1855, i believe--was noted for his quiet manners and studious habits. he has since been district judge, and has worthily filled a seat on the bench of the supreme court of the state, where he was greatly respected by his associates and members of the bar. edward c. marshall, the brilliant orator, who at one time represented the state in congress, had his office in marysville in 1855 and '56. he occasionally appeared in court, though he was generally occupied in politics, and in his case, as in nearly all others, the practice of the law and the occupation of politics did not always move harmoniously together. charles e. filkins, afterwards county judge; charles lindley, afterwards also county judge and one of the code commissioners; henry p. haun, the first county judge, and afterwards appointed to the united states senate by governor weller; n.e. whitesides, afterwards a member of the legislature from yuba, and speaker of the house; f.l. hatch, now county judge of colusa; george howe, afterwards treasurer of the county; and wm. s. belcher, who afterwards rendered good service to the public as a school commissioner, also practiced at the marysville bar with success. charles e. delong, afterwards a member of the state senate, and our minister to japan, and henry k. mitchell, afterwards a nominee of the democrats for the u.s. senate in nevada, were just getting a good position at the bar when i left, and gave evidence of the ability which they afterwards exhibited. others might be named who held fine positions in the profession. these mentioned show a bar of great respectability, and i may add that its members were, with few exceptions, gentlemen of general information and courteous manners. the litigation which chiefly occupied them and gave the largest remuneration related to mines and mining claims. the enforcement of mortgages and collection of debts was generally--by me, at least--entrusted to clerks, unless a contest was made upon them. there was one case which i recall with pleasure, because of the result obtained in face of unconcealed bribery on the other side. the subject of the suit was the right to a "placer" mine in yuba river, at park's bar. its value may be estimated from the fact that within two or three weeks after the decision of the case, the owners took from the mine over ninety thousand dollars in gold dust. the suit was brought before a justice of the peace, and was for an alleged forcible entry and detainer, a form of action generally adopted at the time for the recovery of mining claims, because the title to the lands in which the mines were found was in the united states. it was prosecuted as a purely possessory action. the constable whose duty it was to summon the jurors had received the sum of two hundred dollars to summon certain parties, named by the other side. this fact was established beyond controversy by evidence placed in my hands. and whilst i was in bed in one of the tents or canvas sheds at the bar, which the people occupied in the absence of more substantial buildings, i heard a conversation in the adjoining room--i could not help hearing it, as it was carried on without any attempt at concealment, and the room was only separated from me by the canvas--between one of the jurors and one of the opposite party, in which the juror assured the party that it was "all right," and he need not worry as to the result of the suit; his side would have the verdict; the jury were all that way. on the next day, when the case was summed up, the saloon in which the trial was had was crowded with spectators, most of whom were partisans of the other side. i addressed the jury for over three hours, and after having commented upon the evidence at length and shown conclusively, as i thought, that my client was entitled to a verdict, i said substantially as follows: "gentlemen, we have not endeavored to influence your judgment except by the evidence; we have not approached you secretly and tried to control your verdict; we have relied solely upon the law and the evidence to maintain our rights to this property. but the other side have not thus acted; they have not been content that you should weigh only the evidence; they have endeavored to corrupt your minds and pervert your judgments; they have said that you were so low and debased that although you had with uplifted hands declared that so might the ever-living god help you, as you rendered a verdict according to the evidence, you were willing, to please them, to decide against the evidence, and let perjury rest on your souls. i know that you [pointing to one of the jurors] have been approached. did you spurn the wretch away who made a corrupt proposal to you, or did you hold counsel, sweet counsel with him? i know that you [pointing to another juror] talked over this case with one of the other side at the house on the hill last night, for i overheard the conversation--the promise made to you and your pledge to him. in the canvas houses here all rooms are as one; the words uttered in one are voices in all. you did not dream that any but you two were in the tent; but i was there and overheard the foul bargain." at this thrust there was great excitement, and click, click, was heard all through the room, which showed a general cocking of pistols; for every one in those days went armed. i continued: "there is no terror in your pistols, gentlemen; you will not win your case by shooting me; you can win it only in one way--by evidence showing title to the property; you will never win it by bribery or threats of violence. i charge openly attempted bribery, and if what i say be not true, let the jurors speak out now from their seats. attempted bribery, i say--whether it will be successful bribery, will depend upon what may occur hereafter. if, after invoking the vengeance of heaven upon their souls should they not render a verdict according to the evidence, the jurors are willing to sell their souls, let them decide against us." this home-thrust produced a great sensation. it was evident that the jury were disturbed. when the case was submitted to them, they were absent only a few minutes. they returned a verdict in our favor. some of them afterwards came to me and admitted that they had been corruptly approached, but added that they were not low enough to be influenced in their verdict in that way. "of course not," i replied; though i had little doubt that it was only the fear of exposure which forced them to do right. i have said that in those days everyone went armed; it would be more correct to say that this was true in the mining regions of the state and when travelling. i, myself, carried a derringer pistol and a bowie-knife until the summer of 1854, though of course out of sight. i did so by the advice of judge mott, of the district court, who remarked that, though i never abused a witness or a juror, or was discourteous to any one in court, there were desperate men in the country, and no one could know to what extremity they might go, as i would not be deterred by any considerations from the discharge of my whole duty to my clients. so, until the summer of 1854, i carried weapons. and yet they were not such provocatives of difficulty as some of our eastern friends are accustomed to think. on the contrary, i found that a knowledge that they were worn generally created a wholesome courtesy of manner and language. i continued to occupy my small office and slept in its loft through the summer and fall of 1851, and felt quite contented with them. twice i was summarily dislodged, being threatened by a fire on the other side of the street. on one occasion a most ludicrous incident occurred, which i cannot recall without a smile. a little after midnight we were aroused, on the occasion referred to, by a loud thumping at our door, accompanied by a cry of "fire." my loft was shared with three others, and at the cry we all leaped from our cots and two of our number seizing whatever was convenient and portable carried it out of the house to a distance of about one hundred yards, where gathered a multitude of people, fleeing before the flames with all sorts of baggage, trunks, chairs, beds, and utensils of every kind which they had brought from their houses. i hastily threw the papers of sundry suits and a dozen law books, recently purchased, into a box, and with the assistance of the other occupant of my loft, carried it off. just as we reached the crowd, a pair of young grizzly bears which the owner had kept in a cage near by were let loose, and they came towards us growling in their peculiar way. at their sight, there was a general _stampede_ of men, women, and children, in all directions. boxes and everything else portable were instantly dropped, and such an indiscriminate flight was never before seen except from a panic in battle. the barbour difficulty. when the bill of 1851, dividing the state into new judicial districts, became a law, there were several candidates for the office of judge of the tenth judicial district, which comprised the counties of yuba, nevada, and sutter. henry p. haun, the county judge of yuba, was one candidate; john v. berry, a lawyer of the same county was another; and gordon n. mott, a lawyer of sutter county, was a third. my first choice was berry; but, finding that he had very little chance, i gave what influence i had in favor of mr. mott, and he received from the governor the appointment of judge of the new district. in the summer of 1851, the governor issued his proclamation for the fall elections, and, among others, for an election to fill the office of judge of the tenth district. i had supposed--and there were many others who agreed with me--that judge mott's term under his appointment would continue until the election of 1852. but there being some doubts about the matter and the governor having issued his proclamation for an election, candidates were nominated by the conventions; and at the ensuing election one of them, william t. barbour, a lawyer of nevada county, received a majority of the votes cast and was declared elected. when he came, however, to demand the office, judge mott expressed his opinion that there had been no vacancy to be filled and declined to surrender. this led to a suit between them. the question involved being exclusively one of law, an agreed case was made up and presented to the supreme court, and that tribunal decided in favor of barbour. a report of the case is given in the 3d california reports, under the title of people, ex rel. barbour, vs. mott. in the case i appeared as counsel for judge mott and argued his cause. this offended judge barbour, and he gave free expression to his displeasure. afterwards, when his term for the vacancy was about to expire and a new election was to be held, he presented himself as a candidate for a second term. it was my opinion that he was not qualified for the position, and i therefore recommended my friends to vote for his opponent. for some weeks previous to the election i was absent from the district; but i returned two days before it was to take place and at once took a decided part against barbour and did all i could to defeat him. this action on my part, in connection with my previous zeal in behalf of judge mott, led barbour to make some very bitterly vituperative remarks about me, which being reported to me, i called on him for an explanation. some harsh words passed between us at the interview. the result was that barbour refused to make any explanation, but gave me a verbal challenge to settle our difficulties in the usual way among gentlemen. i instantly accepted it and designated judge mott as my friend. in half an hour afterwards judge mott was called upon by mr. charles s. fairfax as the friend of barbour, who stated that barbour had been challenged by me, and that his object in calling upon mott was to arrange the terms of a hostile meeting. mott answered that he understood the matter somewhat differently; that the challenge, as he had been informed, came from barbour, and that i, instead of being the challenging, was the accepting party. fairfax, however, insisted upon his version of the affair; and upon consulting with mott, i waived the point and accepted the position assigned me. fairfax then stated that barbour, being the challenged party, had the right to choose the weapons and the time and place of meeting; to all of which mott assented. fairfax then said that, upon consultation with his principal, he had fixed the time for that evening; the place, a room twenty feet square, describing it; the weapons, colt's revolvers and bowie-knives; that the two principals so armed were to be placed at opposite sides of the room with their faces to the wall; that they were to turn and fire at the word, then advance and finish the conflict with their knives. mott answered that the terms were unusual, unprecedented, and barbarous, and that he could not consent to them. fairfax admitted that they were so; but replied that they were those barbour had prescribed. he would, however, see barbour and endeavor to obtain a modification of them. soon afterwards he reported that barbour still insisted upon the terms first named and would not agree to any other. when mott reported the result of his conference with fairfax, i at once said that barbour was a coward and would not fight at all. i knew perfectly well that such terms could come only from a bully. i saw that it was a game of bluff he was playing. so i told mott to accept them by all means. mott accordingly called on fairfax and accepted the terms as proposed, and gave notice that i would be on hand and ready at the time and place designated. this being reported to barbour, fairfax soon afterwards made his appearance with a message that his principal would waive the bowie-knives; and not long afterwards he came a second time with another message that it would not do to have the fight in the room designated, because the firing would be heard outside and attract a crowd. in accordance with my instructions, mott assented to all the modifications proposed, and it was finally agreed that the meeting should take place the next morning in sutter county. i was to take a private conveyance, and barbour was to take one of the two daily stages that ran to sacramento. at a specified place we were to leave our conveyances and walk to a retired spot, which was designated, where the hostile meeting was to take place. the next morning, accordingly, i took a carriage, and with my friend judge mott drove down to the appointed place. after we had been there some time the first stage appeared and stopped. soon after the second stage appeared and stopped, and judge barbour and mr. fairfax got out. but instead of proceeding to the designated place, barbour declared that he was a judicial officer, and as such could not engage in a duel. at the same time he would take occasion to say that he would protect himself, and, if assaulted, would kill the assailant. with these words, leaving fairfax standing where he was, he walked over to the first stage, and mounting rode on to sacramento. seeing fairfax standing alone on the ground i sent word to him that i would be happy to give him a place in my carriage--an invitation which he accepted, and we then drove to nicolaus, where we breakfasted, and thence returned to marysville.[1] the conduct of barbour on the ground, after his fierce and savage terms at the outset, produced a great deal of merriment and derision; and some very sharp squibs appeared in the newspapers. one of them gave him great annoyance, and he inquired for its author. i told the editor of the paper in which it appeared that if it was necessary to protect the writer, to give my name, although i did not write it, or know beforehand that it was to be written. on the following morning, whilst in front of my office gathering up kindling-wood for a fire, and having my arms full--for each man was his own servant in those days--barbour came up and, placing a cocked navy revolver near my head, cried out, "draw and defend yourself." as i had not observed his approach i was taken by surprise, but turning on him i said, "you infernal scoundrel, you cowardly assassin--you come behind my back and put your revolver to my head and tell me to draw; you haven't the courage to shoot; shoot and be damned." there were at least ten witnesses of this scene; and it was naturally supposed that having advanced so far he would go farther; but as soon as he found i was not frightened, he turned away and left me. it is impossible to express the contempt i felt for him at that moment for his dastardly conduct, a feeling which the spectators shared with me, as they have since often stated.[2] i do not give these details as having any importance in themselves; but they illustrate the semi-barbarous condition of things in those early days, and by comparison show out of what our existing condition has been evolved, and how far we have advanced. i give them also for the reason that barbour afterwards wrote a letter to turner, which the latter published, referring to the affair, in which he boasted of having given me a "whipping." how far his boast was warranted the above facts show. for a long time afterwards he expressed his bitterness towards me in every possible way. he did not take turner's plan of expelling me from the bar; but he manifested his feelings by adverse rulings. in such cases, however, i generally took an appeal to the supreme court, and in nearly all of them procured a reversal. the result was that he suddenly changed his conduct and commenced ruling the other way. while this was his policy, there was hardly any position i could take in which he did not rule in my favor. at last i became alarmed lest i should lose my cases in the appellate court by winning them before him. about a year afterwards he sent one of his friends to ask me if i was willing to meet him half-way--stating that my conduct in court had always been courteous, and he was satisfied that he had done me injustice. i answered that i was always willing to meet any one half-way, but in this case it must be without explanations for the past. this condition was accepted; accordingly we met, and taking a glass of wine, i said, "here is to an act of oblivion, but no explanations." for a long time no allusion was made by either to the old difficulties. but at last he insisted upon telling me how tales had been brought to him, and how they exasperated him; and he expressed great regret for what had taken place; and to make amends, as far as he was able, for what he had written about me, he sent me the following letter: "marysville, _dec. 22, 1856_. "hon. s.j. field. "dear sir: on yesterday i learned through our mutual friend charles s. fairfax, esq., that judge w.r. turner has recently issued a publication which contains a letter of mine, written him some four years ago. i have not been able to procure a copy of this publication, and i have entirely forgotten the language used; in truth i do not remember to have written him on the subject of yourself or otherwise; but i suppose i must have done so, and have given expressions of opinion that i have long since ceased to entertain, and to invectives that i have no disposition to justify. you will recall that, at the time referred to, there unfortunately existed between us feelings of deep hostility; and i may at the time have used harsh terms indicative of my then feelings, which i regret and do not now approve, if they are as represented by others." "judge turner has taken an unwarranted liberty in publishing the letter, be it of what character it may. he never requested my permission for this purpose, nor did i know that it was his intention." "trusting that this explanation may be satisfactory, i remain," "very respectfully yr. obt. servant," "wm. t. barbour." he ever afterwards, as occasion offered, spoke of me in the highest terms as a gentleman and lawyer. my resentment accordingly died out, but i never could feel any great regard for him. he possessed a fair mind and a kindly disposition, but he was vacillating and indolent. moreover, he loved drink and low company. he served out his second term and afterwards went to nevada, where his habits became worse, and he sunk so low as to borrow of his acquaintances from day to day small sums--one or two dollars at a time--to get his food and lodging. he died from the effects of his habits of intemperance. in stating the result of the intended hostile meeting with him, i mentioned that when he proceeded on his way to sacramento, he left his second, mr. fairfax, standing alone on the ground, and that i invited the latter to take a seat in my carriage. from this time the intercourse between mr. fairfax and myself became more frequent than it had been previously, and a friendship followed which continued as long as he lived. he was not sparing in his censure of the conduct of his principal, whilst his language was complimentary of mine. in a few months i became quite intimate with him, and i found him possessed of a noble and chivalric spirit. with great gentleness of manner, he had the most intrepid courage. his fidelity to his friends and devotion to their interests attached them strongly to him. he was beloved by all who knew him. no man in the state was more popular. he represented the county of yuba in the legislature two or three times, and at one session was speaker of the assembly. when the land office at marysville was established in 1855, he was appointed register; and in 1856, he was elected clerk of the supreme court of the state. it was my good fortune to aid him in securing both of these positions. at my suggestion, mr. mcdougal, a member of congress from california, urged the establishment of the land office, and obtained for him the appointment of register. in 1856, when he sought the clerkship of the supreme court of the state, i became a delegate from yuba county to the state convention, and made his nomination for that office my special object, and with the aid of the rest of the delegation, succeeded in obtaining it. two or three incidents which i will relate will illustrate the character of the man. it was either in the session of 1854 or 1855, i forget which, that a petition was presented to the assembly of california on the part of some of the colored people of the state, requesting that the laws then in force, which excluded them from being witnesses in cases where a white person was a party, might be repealed so as to allow them to testify in such cases. at that time there was a great deal of feeling throughout the country on the subject of slavery, and any attempt to legislate in behalf of the colored people was sure to excite opposition, and give rise to suggestions that its promoter was not sound on the slavery question. the presentation of the petition accordingly stirred up angry feelings. it created a perfect outburst of indignation, and some one moved that the petition should be thrown out of the window; and the motion was passed almost unanimously. if i recollect aright, there was but a single vote in the negative. i was standing by mr. fairfax when he was informed of the proceeding. he at once denounced it, and said, in energetic terms--"this is all wrong--the petition should have been received. if my horse or my dog could in any way express its wishes to me i would listen to it. it is a shame that a petition from any one, black or white, should not be received by the legislature of the state, whether it be granted or not." i was greatly impressed at that time with the manliness of this expression in a community which looked with suspicion on any movement in favor of extending any rights to the colored race. on another occasion, some years afterwards, when i was judge of the supreme court of the state and he was the clerk of the court, there was a good deal of complaint against harvey lee, the reporter of the court, who was appointed to the office by governor weller. i believe that lee was instrumental, but of this i am not certain, in getting a law passed which took the appointment of the reporter from the court and gave it to the governor. he was an inferior lawyer, and, of course, had very little practice. the appointment, therefore, to which a fair salary was attached, was eagerly sought by him. his reports, however, were so defective that an effort was made by the judges to get the law repealed and have the appointment restored to the court. this led to a bitter feeling on his part towards the judges, and in a conversation with mr. fairfax he gave vent to it in violent language. mr. fairfax resented the attack and an altercation ensued, when lee, who carried a sword-cane, drew the sword and ran it into fairfax's body. fortunately it entered the chest above the heart. withdrawing the sword lee made a second lunge at fairfax, which the latter partially avoided so as to receive only a flesh wound in the side. by this time fairfax had drawn his pistol and covered the body of lee, as he was raising his sword for a third thrust. lee, seeing the pistol, stepped back and threw up his arms exclaiming, "i am unarmed"--though he had only that moment withdrawn his sword from the body of fairfax, and it was then dripping with blood. "shoot the damned scoundrel," cried the latter's friend, samuel b. smith, then standing by his side. but fairfax did not shoot. looking at lee, whose body was covered with his pistol, while the blood was trickling from his own person, he said, "you are an assassin! you have murdered me! i have you in my power! your life is in my hands!" and gazing on him, he added, "but for the sake of your poor sick wife and children i will spare you." he thereupon uncocked his pistol and handed it to his friend, into whose arms he fell fainting. he had known the wife of lee when a young girl; and, afterwards, in speaking of the affair to a friend, he said, "i thought my wife would be a widow before sundown, and i did not wish to leave the world making another." all california rang with the story of this heroic act. it has its parallel only in the self-abnegation of the dying hero on the battle-field, who put away from his parched lips the cup of water tendered to him, and directed that it be given to a wounded soldier suffering in agony by his side, saying, "his need is greater than mine." during the war his sympathies, as was the case with most southerners in california, were with his people in virginia. he told me on one occasion that he could not but wish they would succeed; but, he said; "though i am a virginian by birth, i have adopted california, and whilst i live in a state which has taken her stand with the northern people, i cannot in honor do anything, and i will not, to weaken her attachment to the union. if my health were good i should leave the state and return to virginia and give my services to her; but, as that is impossible, i shall remain in california, and, whilst here, will not be false to her by anything i do or say." these incidents, better than any elaborate description, illustrate the character of the man. he was a lineal descendant of the great fairfax family which has figured so conspicuously in the history of england and of virginia. he was its tenth baron in a direct line. but notwithstanding the rank of his family he was a republican in his convictions. he loved his country and its institutions. he was himself more noble than his title. he came east to attend the national democratic convention in 1868 at the head of the delegates from california. after the convention, he spent some months among his friends and relatives at the old family residence in maryland. at this time the seeds of consumption, which had long been lurking in his system, began to be developed, and he was taken down with a severe illness which proved fatal. he became so ill as to be unable to walk, and was conveyed to baltimore to procure the best medical attendance; and there he died on the 4th of april, 1869, in the arms of his devoted wife, who had come from california to be with him in his last hours. his body was brought to washington and interred within sight of the capitol, near hock creek church, in which his ancestors had worshipped. i have mentioned that when fairfax was stabbed by lee he fell into the arms of mr. samuel b. smith. this gentleman i had known slightly before my difficulty with judge barbour; but the intimacy which sprung up between fairfax and myself, after that affair, brought me more in contact with mr. smith, who was his constant companion. mr. smith came to california from new jersey in 1849, and passed through some stirring scenes during that and the following year. he came with mr. john s. hagar, who was afterwards state senator, district judge, and united states senator, and was engaged with him in the mines in the winter of 1849-'50. in 1850 he settled in sutter county; and in the fall of 1852 was elected state senator from that county. having become more intimately acquainted with him after he was elected senator, i requested him to introduce a bill into the legislature, revising and amending the one which i had originally drawn concerning the courts and judicial officers of the state; and he cheerfully consented to do so, and took great interest in securing its passage. indeed, it was through his influence that the bill became a law. many circumstances threw us together after that, and i learned to appreciate his manly character, his generous disposition, and his great devotion to his friends. finally, in the fall of 1854, we agreed to form a partnership after my return from the eastern states, which i then proposed to visit. after the barbour affair the course of my professional life was much the same as that of any other lawyer. my business was large and i gave to it my unremitting attention. in 1854 i determined to go east to see my parents and brothers and sisters, who had never been out of my mind a single day since i left them in 1849. accordingly, i went east, and after passing a few months with them i returned to california in january, 1855. after that i continued to practice my profession, with mr. smith as my partner, until the spring of 1857, though during this period he went to washington as commissioner of the state to obtain from congress the payment of moneys expended by her in suppressing the hostilities of indians within her borders, and was absent several months. in april of that year we dissolved our partnership. a few months afterwards i was nominated for the bench of the supreme court of the state, and was elected by a large majority. there were two candidates besides myself for the position, and 93,000 votes were polled. of these i received a majority of 36,000 over each of my opponents, and 17,000 over them both together.[3] the term to which i was elected was for six years, commencing january 1st, 1858. in september, 1857, hugh c. murray, then chief justice, died, and associate justice peter h. burnett was appointed to fill the vacancy. this left the balance of judge burnett's term of service to be filled, and i was urged by the governor of the state to accept his appointment to it, as it was for less than three months, and immediately preceded my own term. at first i refused, as i desired to revisit the east; but being assured by the judges that taking the place need not prevent my intended visit, i accepted the appointment, and on the 13th of october, 1857, took my seat on the bench. [1] see letter of judge mott detailing the particulars of the affair; exhibit h, in appendix. [2] see exhibit i, in appendix. [3] the exact vote was as follows: for myself 55,216 for nathaniel bennett 18,944 for j.p. ralston 19,068 ----- total vote 93,228 majority over bennett 36,272 majority over balston 36,148 majority over both 17,204 removal from marysville--life on the supreme bench.--end of judge turner. the day following my acceptance of the governor's appointment to the supreme court of the state, i returned to marysville to close my business before taking up my residence in sacramento, where the court held its sessions. i had gone to sacramento to argue some cases before the court when the appointment was tendered to me; and, of course, did not expect to remain there very long. in a few days i arranged my affairs at marysville and then removed permanently to sacramento. i left marysville with many regrets. i had seen it grow from a collection of tents with a few hundred occupants to a town of substantial buildings with a population of from eight to ten thousand inhabitants. from a mere landing for steamers it had become one of the most important places for business in the interior of the state. when i left, it was a depot of merchandise for the country lying north and east of it; and its streets presented a scene of bustle and activity. trains of wagons and animals were constantly leaving it with goods for the mines. its merchants were generally prosperous; some of them were wealthy. its bankers were men of credit throughout the state. steamers plied daily between it and sacramento, and stages ran to all parts of the country and arrived every hour. two daily newspapers were published in it. schools were opened and fully attended. churches of different denominations were erected and filled with worshippers. institutions of benevolence were founded and supported. a provident city government and a vigorous police preserved order and peace. gambling was suppressed or carried on only in secret. a theatre was built and sustained. a lecture-room was opened and was always crowded when the topics presented were of public interest. substantial stores of brick were put up in the business part of the city; and convenient frame dwellings were constructed for residences in the outskirts, surrounded with plats filled with trees and flowers. on all sides were seen evidences of an industrious, prosperous, moral, and happy people, possessing and enjoying the comforts, pleasures, and luxuries of life. and they were as generous as they were prosperous. their hearts and their purses were open to all calls of charity. no one suffering appealed to them in vain. no one in need was turned away from their doors without having his necessities relieved. it is many years since i was there, but i have never forgotten and i shall never forget the noble and generous people that i found there in all the walks of life. the supreme court of the state then consisted of three members, the senior in commission being the chief justice. david s. terry was the chief justice and peter h. burnett was the associate justice. both of these gentlemen have had a conspicuous career in california, and of both i have many interesting anecdotes which would well illustrate their characters and which at some future day i may put upon paper. they were both men of vigorous minds, of generous natures and of positive wills; but in all other respects they differed as widely as it was possible for two extremes. mr. terry had the virtues and prejudices of men of the extreme south in those days. his contact and larger experience since with men of the north have no doubt modified many of those prejudices, and his own good sense must have led him to alter some of his previous judgments. probably his greatest regret is his duel with mr. broderick, as such encounters, when they terminate fatally to one of the parties, never fail to bring life-long bitterness to the survivor. a wiser mode of settling difficulties between gentlemen has since been adopted in the state; but those who have not lived in a community where the duel is practiced cannot well appreciate the force of the public sentiment which at one time existed, compelling a resort to it when character was assailed. mr. burnett was one of the early settlers in oregon, and had held positions of honor and trust there before settling in california. he came here soon after the discovery of gold, took an interest in public affairs, and was elected the first governor of the state, when the constitution was adopted. judge terry resigned his office in september, 1859, when he determined to send a challenge to mr. broderick, and i succeeded him as chief justice; and w.w. cope, of amador, was elected to fill the vacant place on the bench. i was absent from the state at the time, or i should have exerted all the power i possessed by virtue of my office to put a stop to the duel. i would have held both of the combatants to keep the peace under bonds of so large an amount as to have made them hesitate about taking further steps; and in the meantime i should have set all my energies to work, and called others to my aid, to bring about a reconciliation. i believe i should have adjusted the difficulty. mr. cope, who filled the vacant place on the bench, possessed a superior mind and a genial nature. he made an excellent judge. he studiously examined every case and carefully prepared his opinions. he remained on the bench until january, 1864, when the new constitutional amendments, reorganizing the court, went into effect. he is now in practice in san francisco, and has a large clientage. judge burnett continued in office until the election of his successor in the fall of 1858. his successor was joseph g. baldwin, a lawyer of distinction and a gentleman of literary reputation. he was the author of "the flush times of alabama and mississippi," and of "party leaders." the first is a work full of humor and a great favorite in the section of the country whose "times" it portrays with such spirit and glee as to excite roars of laughter in the reader. the latter is a thoughtful history of the character and influence upon the country of jefferson, hamilton, jackson, clay, and randolph. his portraitures present these men in the fullness and freshness of living beings, whom we see and hear, and whose power we feel. my friendship for mr. baldwin commenced long before he came to the bench, and it afterwards warmed into the attachment of a brother. he had a great and generous heart; there was no virtue of humanity of which he did not possess a goodly portion. he was always brimful of humor, throwing off his jokes, which sparkled without burning, like the flashes of a rocket. there was no sting in his wit. you felt as full of merriment at one of his witticisms, made at your expense, as when it was played upon another. yet he was a profound lawyer, and some of his opinions are models of style and reasoning. he remained on the bench until january, 1862, when he was succeeded by edward norton, of san francisco. this gentleman was the exemplar of a judge of a subordinate court. he was learned, patient, industrious, and conscientious; but he was not adapted for an appellate tribunal. he had no confidence in his own unaided judgment. he wanted some one upon whom to lean. oftentimes he would show me the decision of a tribunal of no reputation with apparent delight, if it corresponded with his own views, or with a shrug of painful doubt, if it conflicted with them. he would look at me in amazement if i told him that the decision was not worth a fig; and would appear utterly bewildered at my waywardness when, as was sometimes the case, i refused to look at it after hearing by what court it was pronounced. it is not my purpose to speak of my own career on the bench of the supreme court of california. it is only for reminiscences of my previous life that you, mr. hittell, have asked.[1] i am tempted, however, to hand to you a letter of judge baldwin, my associate for over three years, in which he presents, in terms exaggerated by his friendship, the result of my labors there.[2] there is only one scene to which i wish to refer. about a year and a half after i went upon the bench, a contested election case came up from trinity county. it appeared that judge turner, who had been sent to the district composed of the counties of trinity and klamath, by the act concerning the courts and judicial officers of the state, at the end of his term offered himself for re-election as judge of that district. when the vote was counted there appeared to be a majority of one against him, and his opponent was declared elected. he instituted a contest for the office, and, being defeated in the court below, appealed to the supreme court. he then became very much exercised over his appeal, because i was one of the justices. there were not wanting persons who, out of sheer malice, or not comprehending any higher motives of conduct than such as governed themselves, represented that i would improve the opportunity to strike him a blow. when his case came on for hearing, i left the bench to my associates, judges terry and baldwin, and they decided in his favor. at this action of mine turner was amazed. it was something wholly unexpected and surprising to him. soon after the decision he sent one of his friends, named snowden, to know if i would speak to him if he should make the first advance. i answered that under no circumstances would i ever consent to speak to him; that he had done me injuries which rendered any intercourse with him impossible; that the world was wide enough for us both, and he must go his own way. this answer snowden communicated to him. the next morning he stationed himself at the foot of the stairway leading up to the supreme court rooms, which was on the outside of the building, and, as i passed up, he cried out; "i am now at peace with all the world; if there is any man who feels that i have done him an injury, i am ready to make him amends." i turned and looked at him for a moment, and then passed on without saying a word. on the following morning he took the same position and repeated substantially the same language. i stopped and gazed at him for a moment, and then passed on in silence. this was the last time i saw him. he returned to trinity, and held his office for the balance of his term, six years, under the decision of the supreme court, and was re-elected in 1863. but his character and habits unfitted him for a judicial position. he was addicted to gambling and drinking, and he consorted with the lowest characters; and the same tyrannical temper and conduct which he had exhibited towards me in marysville, were displayed in his new district. accordingly measures were taken by citizens of trinity to secure his impeachment by the legislature. mr. westmoreland, a member of the assembly from that county in 1867 offered a resolution for the appointment of a committee to inquire whether articles of impeachment should be presented against him for high crimes and misdemeanors, with power to send for persons and papers and report articles if warranted by the evidence. in offering the resolution mr. westmoreland charged, that during the time turner had held the office of district judge he had been grossly tyrannical; that he had imprisoned citizens, depriving them of their liberty without process of law; that he had neglected and refused to perform the duties incumbent upon him by statute; that by a standing rule he allowed no witness to be called in a case unless he was subpoenaed and in attendance on the first day of the term; that he had used the power of his position for the furtherance of his own ends of private hate; that he was an habitual drunkard, with rare intervals of sobriety, and had upon occasions come into the court-room to sit upon the trial of causes so intoxicated as to be unable to stand, and had fallen helplessly upon the floor, whence he had been removed by officers of the court; that upon one occasion, when engaged in a trial, he had in the presence of jurors, witnesses, and other persons attending the court, deliberately gone out of the court-room and openly entered a house of ill-fame near by; and that by his disgraceful conduct he had become a burden upon the people of that district too grievous to be borne. these things mr. westmoreland stated he stood prepared to prove, and he invoked the interposition of the legislature to protect the people of the eighth judicial district who were suffering from the deportment and conduct of this officer. the resolution was passed. finding that articles of impeachment would be presented against him, turner resigned his office. after this his habits of drinking became worse, and he was sent to the asylum for inebriates, where he died. in thinking over my difficulties with turner at this distant day, there is nothing in my conduct which i in the least regret. had i acted differently; had i yielded one inch, i should have lost my self-respect and been for life an abject slave. there was undoubtedly an unnecessary severity of language in two or three passages of my answers to his attacks; and some portion of my answer in court to his order to show cause why i should not be re-expelled from the bar might better have been omitted. i have since learned that one is never so strong as when he is calm, and never writes so forcibly as when he uses the simplest language. my justification in these particulars, if they require any, must be found in the savage ferocity with which i was assailed, the brutal language applied to my character and conduct, and the constant threats made of personal violence. malignity and hate, with threats of assassination, followed me like a shadow for months. i went always armed for protection against assault. i should have been less or more than man had i preserved at all times perfect calmness either in my language or conduct. in the contest with this man i was cheered by the support of the best men of the state. but of all of them no one aided me so much, and so freely, as the editor of the marysville herald, mr. robert h. taylor, a gentleman still living, in the full strength of his intellect, and honored and trusted as a learned member of the legal profession in nevada. may length of years and blessings without number attend him. * * * * * here my narrative of "personal experiences" must for the present end. i could have given you, mr. hittell, more interesting matter. i could have given you sketches of fremont, halleck, gwin, broderick, weller, geary, sherman, bigler, mcdougal, bennett, heydenfeldt, murray, and others, with many striking anecdotes illustrative of their characters. they were all remarkable men, and the history of their lives would be full of interest and instruction. i could have related the story of the vigilance committees of 1851 and 1856, and shown how the men of order and virtue acquired and maintained ascendency over the irregular and disorderly elements of society. i could have told you of the gradual development of the industries of the state until her yearly products have become one of the marvels of the world. i could have described the wild excitement produced by the supposed discoveries of gold in boundless quantities on fraser river; and the later but more substantial movement upon the development of the silver mines of nevada. i could have recounted the efforts made in 1860 and 1861 to keep the state in the union against the movements of the secessionists, and the communications had with president lincoln by relays of riders over the plains. i could have described the commencement, progress, and completion of the pacific railroad, and the wonderful energy and unfailing resolution of its constructors. i could have told you stories without number, full of interest, of the judges of california, state and federal, who preceded me on the bench, and of members of the profession; of hastings, bennett, lyons, wells, anderson, heydenfeldt, and murray, of the state supreme court; of hoffman and mcallister of the federal bench; of robinson, crittenden, randolph, williams, yale, mcconnell, felton, and others of the bar, now dead, and of some who are at its head, now living; composing as a whole a bar not exceeded in ability, learning, eloquence, and literary culture by that of any other state of the union. but you asked me merely for personal reminiscences, of occurrences at marysville and during the days preceding my going there. i will, therefore, postpone until another occasion a narrative which i think will be more interesting than anything i have here related. [1] these sketches were in the main dictated to a short-hand writer at the request of mr. theodore h. hittell, of san francisco. [2] the letter is printed at the end of this narrative at page 135. the career of judge field on the supreme bench of california, by judge joseph g. baldwin, his associate for three years. [_from the sacramento union, of may 6, 1863._] "the resignation by judge field of the office of chief justice of the supreme court of california, to take effect on the 20th instant, has been announced. by this event the state has been deprived of the ablest jurist who ever presided over her courts. judge field came to california from new york in 1849, and settled in marysville. he immediately commenced the practice of law and rose at once to a high position at the local bar, and upon the organization of the supreme court soon commanded a place in the first class of the counsel practicing in that forum. for many years, and until his promotion to the bench, his practice was as extensive, and probably as remunerative, as that of any lawyer in the state. he served one or two sessions in the legislature, and the state is indebted to him for very many of the laws which constitute the body of her legislation.[1] in 1857 he was nominated for judge of the supreme court for a full term, and in october of the same year was appointed by governor johnson to fill the unexpired term of justice heydenfeldt, resigned. he immediately entered upon the office, and has continued ever since to discharge its duties. recently, as the reader knows, he was appointed, by the unanimous request of our delegation in congress, to a seat upon the bench of the supreme court of the united states, and was confirmed, without opposition, by the senate. "like most men who have risen to distinction in the united states, judge field commenced his career without the advantages of wealth, and he prosecuted it without the factitious aids of family influence or patronage. he had the advantage, however--which served him better than wealth or family influence--of an accomplished education, and careful study and mental discipline. he brought to the practice of his profession a mind stored with professional learning, and embellished with rare scholarly attainments. he was distinguished at the bar for his fidelity to his clients, for untiring industry, great care and accuracy in the preparation of his cases, uncommon legal acumen, and extraordinary solidity of judgment. as an adviser, no man had more the confidence of his clients, for he trusted nothing to chance or accident when certainty could be attained, and felt his way cautiously to his conclusions, which, once reached, rested upon sure foundations, and to which he clung with remarkable pertinacity. judges soon learned to repose confidence in his opinions, and he always gave them the strongest proofs of the weight justly due to his conclusions. "when he came to the bench, from various unavoidable causes the calendar was crowded with cases involving immense interests, the most important questions, and various and peculiar litigation. california was then, as now, in the development of her multiform physical resources. the judges were as much pioneers of law as the people of settlement. to be sure something had been done, but much had yet to be accomplished; and something, too, had to be undone of that which had been done in the feverish and anomalous period that had preceded. it is safe to say that, even in the experience of new countries hastily settled by heterogeneous crowds of strangers from all countries, no such example of legal or judicial difficulties was ever before presented as has been illustrated in the history of california. there was no general or common source of jurisprudence. law was to be administered almost without a standard. there was the civil law, as adulterated or modified by mexican provincialism, usages, and habitudes, for a great part of the litigation; and there was the common law for another part, but _what that was_ was to be decided from the conflicting decisions of any number of courts in america and england, and the various and diverse considerations of policy arising from local and other facts. and then, contracts made elsewhere, and some of them in semi-civilized countries, had to be interpreted here. besides all which may be added that large and important interests peculiar to the state existed--mines, ditches, etc.--for which the courts were compelled to frame the law, and make a system out of what was little better than chaos. "when, in addition, it is considered that an unprecedented number of contracts, and an amount of business without parallel, had been made and done in hot haste, with the utmost carelessness; that legislation was accomplished in the same way, and presented the crudest and most incongruous materials for construction; that the whole scheme and organization of the government, and the relation of the departments to each other, had to be adjusted by judicial construction--it may well be conceived what task even the ablest jurist would take upon himself when he assumed this office. it is no small compliment to say that judge field entered upon the duties of this great trust with his usual zeal and energy, and that he leaves the office not only with greatly increased reputation, but that he has raised the character of the jurisprudence of the state. he has more than any other man given tone, consistency, and system to our judicature, and laid broad and deep the foundation of our civil and criminal law. the land titles of the state--the most important and permanent of the interests of a great commonwealth--have received from his hand their permanent protection, and this alone should entitle him to the lasting gratitude of the bar and the people. "his opinions, whether for their learning, logic, or diction, will compare favorably, in the judgment of some of our best lawyers, with those of any judge upon the supreme bench of the union. it is true what he has accomplished has been done with labor; but this is so much more to his praise, for such work was not to be hastily done, and it was proper that the time spent in perfecting the work should bear some little proportion to the time it should last. we know it has been said of judge field that he is too much of a 'case lawyer,' and not sufficiently broad and comprehensive in his views. this criticism is not just. it is true he is reverent of authority, and likes to be sustained by precedent; but an examination of his opinions will show that, so far from being a timid copyist, or the passive slave of authority, his rulings rest upon clearly defined principles and strong common sense. "he retires from office without a stain upon his ermine. millions might have been amassed by venality. he retires as poor as when he entered, owing nothing and owning little, except the title to the respect of good men, which malignant mendacity cannot wrest from a public officer who has deserved, by a long and useful career, the grateful appreciation of his fellow-citizens. we think that we may safely predict that, in his new place, justice field will fulfill the sanguine expectations of his friends." j.g.b. san francisco, _may 1, 1863_. [1] he was in the legislature only one session. * * * * * in 1855 a circuit court for california was created by congress, and clothed with the ordinary jurisdiction of the several circuit courts of the united states. hon. m. hall mcallister was appointed its judge. in january, 1863, he resigned and my appointment as his successor was recommended by our senators. they telegraphed me what they had done, and i replied that i could not accept the place, that i preferred to remain chief justice of the supreme court of the state than to be a judge of an inferior federal court, but that if a new justice were added to the supreme court of the united states, i would accept the office if tendered to me. notwithstanding this reply my appointment was urged, and i was nominated by the president. the senators have since told me that they pressed my nomination from a belief that another justice would soon be added to the supreme court, and that the appointment would be made from the pacific states, and that if i were circuit judge it would more likely be tendered to me than to any one else. the interests of those states were so great, and from the character of their land titles, and their mines of gold and silver, were in some respects so different from those of the eastern states, that it was deemed important to have some one familiar with them on the supreme bench of the united states. accordingly, while my nomination for circuit judge was pending before the senate, a bill providing for an additional justice of the supreme court, and making the pacific states a new circuit, was introduced into both houses of congress, and on the last day of the session, march 3d, 1863, it became a law. soon after the adjournment of congress, the entire delegation from the pacific states united in recommending my appointment to the new office. the delegation then consisted of four senators and four members of the house, of whom five were democrats and three republicans; all of them were union men. i was accordingly nominated by the president, and the nomination was unanimously confirmed by the senate. my commission was signed on the 10th of march, 1863, and forwarded to me. i did not, however, take the oath of office and enter upon its duties until the 20th of may following. at the time i received the commission there were many important cases pending in the supreme court of california, which had been argued when only myself and one of the associate justices were present. i thought that these cases should be disposed of before i resigned, as otherwise a re-argument of them would be required, imposing increased expense and delay upon the parties. i therefore sent my resignation as chief justice to the governor, to take effect on the 20th of may. i selected that day, as i believed the cases argued could be decided by that time, and because it was the birthday of my father. i thought it would be gratifying to him to know that on the eighty-second anniversary of his birth his son had become a justice of the supreme court of the united states. accordingly on that day i took the oath of office.[1] [1] although i had informed the attorney-general of my action and delay in taking the oath of office, the salary of the office was sent to me from the date of my commission, march 10th, 1863. i immediately deposited with the sub-treasurer at san francisco, to the credit of the united states, the proportion for the time between that date and the 20th of may, and informed the secretary of the treasury of the deposit, enclosing to him the sub-treasurer's receipt. * * * * * the annoyances of my judicial life. after the narrative of my personal reminiscences was completed, i concluded to dictate an account of some strange annoyances to which i had been subjected in the course of my judicial life. the account will have an interest to those of my friends for whom the reminiscences were printed, and it is intended for their perusal alone. rosy views of judicial life gradually vanishing.--unsettled land titles of the state.--asserted ownership by the state of gold and silver found in the soil.--present of a torpedo. when i went on the bench, i not only entertained elevated notions of the dignity and importance of the judicial office, but looked forward confidently to the respect and honor of the community from a faithful discharge of its duties. i soon discovered, however, that there would be but little appreciation for conscientious labor on the bench, except from a small number of the legal profession, until after the lapse of years. for the heavy hours of toil which the judges endured, for the long examination which they gave to voluminous records, for their nights of sleeplessness passed in anxious thought to ascertain what was true and right amidst a mass of conflicting evidence and doubtful principles, the public at large appeared to have little thought and less consideration. the cry of disappointment over frustrated schemes of cupidity and fraud was sufficient for the time to drown all other expressions of judgment upon the action of the court. the unsettled condition of the land titles of the state gave occasion to a great deal of litigation and was for a long time the cause of much bad feeling towards the judges who essayed to administer impartial justice. when california was acquired, the population was small and widely scattered. to encourage colonization, grants of land in large quantities, varying from one to eleven leagues, had been made to settlers by the mexican government. only small tracts were subjected to cultivation. the greater part of the land was used for grazing cattle, which were kept in immense herds. the grants were sometimes of tracts with defined boundaries, and sometimes of places by name, but more frequently of specified quantities within boundaries embracing a greater amount. by the mexican law, it was incumbent upon the magistrates of the vicinage to put the grantees in possession of the land granted to them; and for that purpose to measure off and segregate the quantity designated. owing to the sparseness of the population there was little danger of dispute as to boundaries, and this segregation in the majority of cases had been neglected before our acquisition of the country. from the size of the grants and the want of definite boundaries, arose nearly all the difficulties and complaints of the early settlers. upon the discovery of gold, immigrants from all parts of the world rushed into the country, increasing the population in one or two years from a few thousand to several hundred thousand. a large number crossed the plains from the western states, and many of them sought for farming lands upon which to settle. to them a grant of land, leagues in extent, seemed a monstrous wrong to which they could not be reconciled. the vagueness, also, in many instances, of the boundaries of the land claimed gave force and apparent reason to their objections. they accordingly settled upon what they found unenclosed or uncultivated, without much regard to the claims of the mexican grantees. if the land upon which they thus settled was within the tracts formerly occupied by the grantees with their herds, they denied the validity of grants so large in extent. if the boundaries designated enclosed a greater amount than that specified in the grants, they undertook to locate the supposed surplus. thus, if a grant were of three leagues within boundaries embracing four, the immigrant would undertake to appropriate to himself a portion of what he deemed the surplus; forgetting that other immigrants might do the same thing, each claiming that what he had taken was a portion of such surplus, until the grantee was deprived of his entire property. when i was brought to consider the questions to which this condition of things gave rise, i assumed at the outset that the obligations of the treaty with mexico were to be respected and enforced. this treaty had stipulated for the protection of all rights of property of the citizens of the ceded country; and that stipulation embraced inchoate and equitable rights, as well as those which were perfect. it was not for the supreme court of california to question the wisdom or policy of mexico in making grants of such large portions of her domain, or of the united states in stipulating for their protection. i felt the force of what judge grier had expressed in his opinion in the case of the united states vs. sutherland, in the 19th of howard, that the rhetoric which denounced the grants as enormous monopolies and princedoms might have a just influence when urged to those who had a right to give or refuse; but as the united states had bound themselves by a treaty to acknowledge and protect all _bona fide_ titles granted by the previous government, the court had no discretion to enlarge or contract such grants to suit its own sense of propriety or to defeat just claims, however extensive, by stringent technical rules of construction to which they were not originally subjected. since then, while sitting on the bench of the supreme court of the united states, i have heard this obligation of our government to protect the rights of mexican grantees stated in the brilliant and powerful language of judge black. in the fossat case, referring to the land claimed by one justo larios, a mexican grantee, he said: "the land we are claiming never belonged to this government. it was private property under a grant made long before our war with mexico. when the treaty of guadalupe hidalgo came to be ratified--at the very moment when mexico was feeling the sorest pressure that could be applied to her by the force of our armies, and the diplomacy of our statesmen--she utterly refused to cede her public property in california unless upon the express condition that all private titles should be faithfully protected. we made the promise. the gentleman sits on this bench who was then our minister there.[1] with his own right hand he pledged the sacred honor of this nation that the united states would stand over the grantees of mexico and keep them safe in the enjoyment of their property. the pledge was not only that the government itself would abstain from all disturbance of them, but that every blow aimed at their rights, come from what quarter it might, should be caught upon the broad shield of our blessed constitution and our equal laws." "it was by this assurance thus solemnly given that we won the reluctant consent of mexico to part with california. it gave us a domain of more than imperial grandeur. besides the vast extent of that country, it has natural advantages such as no other can boast. its valleys teem with unbounded fertility, and its mountains are filled with inexhaustible treasures of mineral wealth. the navigable rivers run hundreds of miles into the interior, and the coast is indented with the most capacious harbors in the world. the climate is more healthful than any other on the globe: men can labor longer with less fatigue. the vegetation is more vigorous and the products more abundant; the face of the earth is more varied, and the sky bends over it with a lovelier blue.--that was what we gained by the promise to protect men in the situation of justo larios, their children, their alienees, and others claiming through them. it is impossible that in this nation they will ever be plundered in the face of such a pledge."--(2 wallace, 703.) actuated by this principle--that fidelity to a nation's pledge is a sacred duty, and that justice is the highest interest of the country, i endeavored, whenever the occasion presented itself, and my associates heartily co-operated with me, to protect the mexican grantees. their grants contained a stipulation for the possession of the lands granted, inasmuch as they were subject to the conditions of cultivation and occupancy, and a failure to comply with the conditions was considered by the tribunals of the united states as a most material circumstance in the determination of the right of the grantees to a confirmation of their claims. i held, therefore, with the concurrence of my associates, that the grantees, whether they were to be considered as having a legal or an equitable right to the lands, were entitled to their possession until the action of the government upon their claims, and, therefore, that they could recover in ejectment. and when the grant was not a mere float, but was of land within defined boundaries, which embraced a greater quantity than that specified in it, with a provision that the surplus should be measured off by the government, i held that until such measurement the grantee could hold the whole as against intruders, and until then he was a tenant in common with the government. as i said in one of my opinions, speaking for the court, until such measurement no individual could complain, much less could he be permitted to determine in advance, that any particular locality would fall within the supposed surplus, and thereby justify its forcible seizure and detention by himself. "if one person could in this way appropriate a particular parcel to himself, all persons could do so; and thus the grantee, who is the donee of the government, would be stripped of its bounty for the benefit of those who were not in its contemplation and were never intended to be the recipients of its favors."[2] these views have since met with general assent in california and have been approved by the supreme court of the united states.[3] but at that time they gave great offence to a large class, and the judges were denounced in unmeasured terms as acting in the interests of monopolists and land-grabbers. even now, when the wisdom and justice of their action are seen and generally recognized, words of censure for it are occasionally whispered through the press. persons sometimes seem to forget that to keep the plighted faith of the nation, to preserve from reproach its fair fame, where its honor is engaged, is one of the highest duties of all men in public life. the action of the court as to the possession of the public lands of the united states met with more favor. the position of the people of california with respect to the public lands was unprecedented. the discovery of gold brought, as already stated, an immense immigration to the country. the slopes of the sierra nevada were traversed by many of the immigrants in search of the precious metals, and by others the tillable land was occupied for agricultural purposes. the title was in the united states, and there had been no legislation by which it could be acquired. conflicting possessory claims naturally arose, and the question was presented as to the law applicable to them. as i have mentioned in my narrative of reminiscences, the legislature in 1851 had provided that in suits before magistrates for mining claims, evidence of the customs, usages, and regulations of miners in their vicinage should be admissible, and, when not in conflict with the constitution and laws of the united states, should govern their decision, and that the principle thus approved was soon applied in actions for mining claims in all courts. in those cases it was considered that the first possessor or appropriator of the claim had the better right as against all parties except the government, and that he, and persons claiming under him, were entitled to protection. this principle received the entire concurrence of my associates, and was applied by us, in its fullest extent, for the protection of all possessory rights on the public lands. thus, in coryell vs. cain, i said, speaking for the court: "it is undoubtedly true, as a general rule, that the claimant in ejectment must recover upon the strength of his own title, and not upon the weakness of his adversary's, and that it is a sufficient answer to his action to show title out of him and in a third party. but this general rule has, in this state, from the anomalous condition of things arising from the peculiar character of the mining and landed interests of the country, been, to a certain extent, qualified and limited. the larger portion of the mining lands within the state belong to the united states, and yet that fact has never been considered as a sufficient answer to the prosecution of actions for the recovery of portions of such lands. actions for the possession of mining claims, water privileges, and the like, situated upon the public lands, are matters of daily occurrence, and if the proof of the paramount title of the government would operate to defeat them, confusion and ruin would be the result. in determining controversies between parties thus situated, this court proceeds upon the presumption of a grant from the government to the first appropriator of mines, water privileges, and the like. this presumption, which would have no place for consideration as against the assertion of the rights of the superior proprietor, is held absolute in all those controversies. and with the public lands which are not mineral lands, the title, as between citizens of the state, where neither connects himself with the government, is considered as vested in the first possessor, and to proceed from him."--(16 cal., p. 572.) the difficulties attendant upon any attempt to give security to landed possessions in the state, arising from the circumstances i have narrated, were increased by an opinion, which for some time prevailed, that the precious metals, gold and silver, found in various parts of the country, whether in public or private lands, belonged to the state by virtue of her sovereignty. to this opinion a decision of the supreme court of the state, made in 1853, gave great potency. in hicks vs. bell, decided that year, the court came to that conclusion, relying upon certain decisions of the courts of england recognizing the right of the crown to those metals. the principal case on the subject was that of the queen vs. the earl of northumberland, reported in plowden. the counsel of the queen in that case gave, according to our present notions, some very fanciful reasons for the conclusion reached, though none were stated in the judgment of the court. there were three reasons, said the counsel, why the king should have the mines and ores of gold and silver within the realm, in whatsoever land they were found: "the first was, in respect to the excellency of the thing, for of all things which the soil within this realm produces or yields, gold and silver are the most excellent, and of all persons in the realm, the king is, in the eye of the law, most excellent. and the common law, which is founded upon reason, appropriates everything to the person whom it best suits, as common and trivial things to the common people, things of more worth to persons in a higher and superior class, and things most excellent to those persons who excel all others; and because gold and silver are the most excellent things which the soil contains, the law has appointed them (as in reason it ought) to the person who is most excellent, and that is the king.--the second reason was, in respect of the necessity of the thing. for the king is the head of the weal-public and the subjects are his members; and the office of the king, to which the law has appointed him, is to preserve his subjects; and their preservation consisted in two things, viz., in an army to defend them against hostilities, and in good laws. and an army cannot be had and maintained without treasure, for which reason some authors, in their books, call treasure the sinews of war; and, therefore, inasmuch as god has created mines within this realm, as a natural provision of treasure for the defence of the realm, it is reasonable that he who has the government and care of the people, whom he cannot defend without treasure, should have the treasure wherewith to defend them.--the third reason was, in respect of its convenience to the subjects in the way of mutual commerce and traffic. for the subjects of the realm must, of necessity, have intercourse or dealing with one another, for no individual is furnished with all necessary commodities, but one has need of the things which another has, and they cannot sell or buy together without coin.--and if the subject should have it (the ore of gold or silver) the law would not permit him to coin it, nor put a print or value upon it, for it belongs to the king only to fix the value of coin, and to ascertain the price of the quantity, and to put the print upon it, which being done, the coin becomes current for so much as the king has limited.--so that the body of the realm would receive no benefit or advantage if the subject should have the gold and silver found in mines in his land; but on the other hand, by appropriating it to the king, it tends to the universal benefit of all the subjects in making their king able to defend them with an army against all hostilities, and when he has put the print and value upon it, and has dispersed it among his subjects, they are thereby enabled to carry on mutual commerce with one another, and to buy and sell as they have occasion, and to traffic at their pleasure. therefore, for these reasons, viz., for the excellency of the thing, and for the necessity of it, and the convenience that will accrue to the subjects, the common law, which is no other than pure and tried reason, has appropriated the ore of gold and silver to the king, in whatever land it be found." the supreme court of the state, without considering the reasons thus assigned in the case in plowden, adopted its conclusion; and as the gold and silver in the british realm are there held to belong to the crown, it was concluded, on the hypothesis that the united states have no municipal sovereignty within the limits of the state, that they must belong in this country to the state. the state, therefore, said the court, "has solely the right to authorize them" (the mines of gold and silver) "to be worked; to pass laws for their regulation; to license miners; and to affix such terms and conditions as she may deem proper to the freedom of their use. in the legislation upon this subject she has established the policy of permitting all who desire it to work her mines of gold and silver, with or without conditions, and she has wisely provided that their conflicting claims shall be adjudicated by the rules and customs which may be established by bodies of them working in the same vicinity."--(3 cal., 220.) the miners soon grasped the full scope of this decision, and the lands of private proprietors were accordingly invaded for the purpose of mining as freely as the public lands. it was the policy of the state to encourage the development of the mines, and no greater latitude in exploration could be desired than was thus sanctioned by the highest tribunal of the state. it was not long, however, before a cry came up from private proprietors against the invasion of their possessions which the decision had permitted; and the court was compelled to put some limitation upon the enjoyment by the citizen of this right of the state. accordingly, within two years afterwards, in stoakes vs. barrett, (5 cal., 37,) it held that although the state was the owner of the gold and silver found in the lands of private individuals as well as in the public lands, "yet to authorize an invasion of private property in order to enjoy a public franchise would require more specific legislation than any yet resorted to." the spirit to invade other people's lands, to which the original decision gave increased force against the intention of its authors, could not be as easily repressed as it was raised in the crowd of adventurers, who filled the mining regions. accordingly, long before i went on the bench, the right to dig for the precious metals on the lands of private individuals was stoutly asserted under an assumed license of the state. and afterwards, in the case of biddle boggs vs. the merced mining co., which came before the court in 1859, where the plaintiff claimed under a patent of the united states, issued upon the confirmation of a mexican grant, the existence of this license was earnestly maintained by parties having no connection with the government, nor any claim of title to the land. its existence was, however, repudiated by the court, and speaking for it in that case i said: "there is gold in limited quantities scattered through large and valuable districts, where the land is held in private proprietorship, and under this pretended license the whole might be invaded, and, for all useful purposes, destroyed, no matter how little remunerative the product of the mining. the entry might be made at all seasons, whether the land was under cultivation or not, and without reference to its condition, whether covered with orchards, vineyards, gardens, or otherwise. under such a state of things, the proprietor would never be secure in his possessions, and without security there would be little development, for the incentive to improvement would be wanting. what value would there be to a title in one man, with a right of invasion in the whole world? and what property would the owner possess in mineral land--the same being in fact to him poor and valueless just in proportion to the actual richness and abundance of its products? there is something shocking to all our ideas of the rights of property in the proposition that one man may invade the possessions of another, dig up his fields and gardens, cut down his timber, and occupy his land, under the pretence that he has reason to believe there is gold under the surface, or if existing, that he wishes to extract and remove it." at a later day the court took up the doctrine, that the precious metals belonged to the state by virtue of her sovereignty, and exploded it. the question arose in moore vs. smaw, reported in 17th california, and in disposing of it, speaking for the court, i said: "it is undoubtedly true that the united states held certain rights of sovereignty over the territory which is now embraced within the limits of california, only in trust for the future state, and that such rights at once vested in the new state upon her admission into the union. but the ownership of the precious metals found in public or private lands was not one of those rights. such ownership stands in no different relation to the sovereignty of a state than that of any other property which is the subject of barter and sale. sovereignty is a term used to express the supreme political authority of an independent state or nation. whatever rights are essential to the existence of this authority are rights of sovereignty. thus the right to declare war, to make treaties of peace, to levy taxes, to take private property for public uses, termed the right of eminent domain, are all rights of sovereignty, for they are rights essential to the existence of supreme political authority. in this country, this authority is vested in the people, and is exercised through the joint action of their federal and state governments. to the federal government is delegated the exercise of certain rights or powers of sovereignty; and with respect to sovereignty, rights and powers are synonymous terms; and the exercise of all other rights of sovereignty, except as expressly prohibited, is reserved to the people of the respective states, or vested by them in their local governments. when we say, therefore, that a state of the union is sovereign, we only mean that she possesses supreme political authority, except as to those matters over which such authority is delegated to the federal government, or prohibited to the states; in other words, that she possesses all the rights and powers essential to the existence of an independent political organization, except as they are withdrawn by the provisions of the constitution of the united states. to the existence of this political authority of the state--this qualified sovereignty, or to any part of it--the ownership of the minerals of gold and silver found within her limits is in no way essential. the minerals do not differ from the great mass of property, the ownership of which may be in the united states, or in individuals, without affecting in any respect the political jurisdiction of the state. they may be acquired by the state, as any other property may be, but when thus acquired she will hold them in the same manner that individual proprietors hold their property, and by the same right; by the right of ownership, and not by any right of sovereignty." and referring to the argument of counsel in the case in plowden, i said that it would be a waste of time to show that the reasons there advanced in support of the right of the crown to the mines could not avail to sustain any ownership of the state in them. the state takes no property by reason of "the excellency of the thing," and taxation furnishes all requisite means for the expenses of government. the convenience of citizens in commercial transactions is undoubtedly promoted by a supply of coin, and the right of coinage appertains to sovereignty. but the exercise of this right does not require the ownership of the precious metals by the state, nor by the federal government, where this right is lodged under our system, as the experience of every day demonstrates. i also held that, although under the mexican law the gold and silver found in land did not pass with a grant of the land, a different result followed, under the common law, when a conveyance of land was made by an individual or by the government. by such conveyance everything passed in any way connected with the land, forming a portion of its soil or fixed to its surface. the doctrine of the right of the state by virtue of her sovereignty to the mines of gold and silver perished with this decision. it was never afterwards seriously asserted. but for holding what now seems so obvious, the judges were then grossly maligned as acting in the interest of monopolists and land owners, to the injury of the laboring class. the decisions, however, which caused for the time the greatest irritation, and excited the bitterest denunciation of the judges, related to the titles to land in the city of san francisco, though in the end they proved to be of incalculable benefit. upon the acquisition of california, there was a mexican pueblo upon the site of the city. the term _pueblo_ is aptly translated by the english word _town_. it has all the vagueness of that term, and is equally applicable to a settlement of a few individuals at a particular place, or to a regularly organized municipality. the _pueblo_ of san francisco was composed of a small population; but, as early as 1835, it was of sufficient importance to have an _ayuntamiento_ or town council, composed of alcaldes and other officers, for its government. at the time of our acquisition of the country it was under the government of alcaldes or justices of the peace. by the laws of mexico, then in force, _pueblos_ or towns, when once officially recognized as such by the appointment of municipal magistrates, became entitled to four square leagues of land, to be measured off and assigned to them by the officers of the government. under these laws the city of san francisco, as successor of the mexican pueblo, asserted a claim to such lands, to be measured off from the northern portion of the peninsula upon which the city is situated. and the alcaldes, assuming an authority similar to that possessed by _alcaldes_ in other _pueblos_, exercised the power of distributing these municipal lands in small parcels to settlers for building, cultivation, and other uses. when the forces of the united states took possession of the city, the alcaldes, holding under the mexican government, were superseded by persons appointed by our military or naval officers having command of the place. with the increase of population which followed the discovery of gold, these magistrates were besieged by applicants for grants of land; and it was refreshing to see with what generous liberality they disposed of lots in the city--a liberality not infrequent when exercised with reference to other people's property. lots, varying in size from fifty to one hundred varas square, (a measure nearly equal to our yard,) were given away as freely as they were asked, only a small fee to meet necessary charges for preparing and recording the transfers being demanded. thus, for the lot occupied by the lick house, and worth now nearly a million, only a few dollars, less i believe than twenty, were paid. and for the lot covered by the grand hotel, admitted to be now worth half a million, less than thirty-five dollars were paid. the authority of the alcaldes to dispose of the lands was questioned by many of the new immigrants, and the validity of their grants denied. they asserted that the land was part of the public property of the united states. many holding these views gave evidence of the earnestness of their convictions by immediately appropriating to themselves as much vacant land in the city as they could conveniently occupy. disputes followed, as a matter of course, between claimants under the alcalde grants and those holding as settlers, which often gave rise to long and bitter litigation. the whole community was in fact divided between those who asserted the existence of a _pueblo_ having a right to the lands mentioned, and the power of the alcaldes to make grants of them; and those who insisted that the land belonged to the united states. early in 1850, after the state government was organized, the legislature incorporated the city of san francisco; and, as is usual with municipal bodies not restrained by the most stringent provisions, it contracted more debts than its means warranted, and did not always make provision for their payment at maturity. numerous suits, therefore, were instituted and judgments were recovered against the city. executions followed, which were levied upon the lands claimed by her as successor of the _pueblo_. where the occupants denied the title of the city, they were generally indifferent to the sales by the sheriff. property of immense value, in some cases many acres in extent, was, in consequence, often struck off to bidders at a merely nominal price. upon the deeds of the officer, suits in ejectment were instituted in great numbers; and thus questions as to the existence of the alleged _pueblo_, and whether, if existing, it had any right to land, and the nature of such right, if any, were brought before the lower courts; and, finally, in a test case--hart vs. burnett--they found their way to the supreme court of the state. in the meantime a large number of persons had become interested in these sales, aside from the occupants of the land, and the greatest anxiety was manifested as to the decision of the court. previous decisions on the questions involved were not consistent; nor had they met the entire approval of the profession, although, the opinion prevailed generally that a mexican pueblo of some kind, owning or having an interest in lands, had existed on the site of the city upon the acquisition of the country, and that such lands, like other property of the city not used for public purposes, were vendible on execution. in 1855, after the sale in respect to which the test case was made, the council of the city passed "the van ness ordinance," so called from the name of its author, the object of which was to settle and quiet, as far as practicable, the title of persons occupying land in the city. it relinquished and granted the right and interest of the city to lands within its corporate limits, as defined by the charter of 1851, with certain exceptions, to parties in the actual possession thereof, by themselves or tenants, on or before the first of january, 1855, if the possession were continued to the time of the introduction of the ordinance into the common council in june of that year; or, if interrupted by an intruder or trespasser, it had been or might be recovered by legal process. and it declared that, for the purposes of the act, all persons should be deemed in possession who held titles to land within the limits mentioned, by virtue of a grant made by the authorities of the pueblo, including alcaldes among them, before the 7th of july, 1846,--the day when the jurisdiction over the country is deemed to have passed from mexico to the united states,--or by virtue of a grant subsequently made by those authorities, if the grant, or a material portion of it, had been entered in a proper book of record deposited in the office or custody of the recorder of the county of san francisco on or before april 3d, 1850. this ordinance was approved by an act of the legislature of the state in march, 1858, and the benefit of it and of the confirmatory act was claimed by the defendant in the test case. that case was most elaborately argued by able and learned counsel. the whole law of mexico respecting _pueblos_, their powers, rights, and property, and whether, if possessing property, it was subject to forced sale, the effect upon such land of the change of sovereignty to the united states, the powers of alcaldes in disposing of the property of these municipalities, the effect of the van ness ordinance, and the confirmatory act of the legislature, were all discussed with a fullness and learning which left nothing unexplained or to be added. for weeks afterwards the judges gave the most laborious attention to the questions presented, and considered every point and the argument on both sides of it with anxious and painful solicitude to reach a just conclusion. the opinion of the court, prepared by mr. justice baldwin, is without precedent for the exhaustive learning and research it exhibits upon the points discussed. the court held, among other things, that, at the date of the conquest and cession of the country, san francisco was a pueblo, having the rights which the law of mexico conferred upon such municipal organizations; that as such pueblo it had proprietary rights to certain lands, which were held in trust for the public use of the city, and were not subject to seizure and sale under execution; that such portions as were not set apart for common use or special purposes could be granted in lots to private persons by its ayuntamiento or by alcaldes or other officers who represented or had succeeded to its powers; that the lands, and the trusts upon which they were held, were public and municipal in their nature, and since the organization of the state were under its control and supervision; that the act of the legislature confirming the van ness ordinance was a proper exercise of the power of the state, and vested in the possessors therein described, as against the city and state, a title to the lands mentioned; and that the city held the lands of the pueblo, not legally disposed of by its officers, unaffected by sheriff's sales under executions against her. this decision was of the greatest importance both to the city and the occupants of land within its limits. the van ness ordinance had reserved from grant for the uses of the city all the lots which it then occupied or had set apart for public squares, streets, sites for school-houses, city hall and other buildings belonging to the corporation, and also such other lots as it might subsequently select for public purposes within certain designated limits. all these were by the decision at once released from any possible claim by virtue of sales on executions. all persons occupying lands not thus reserved were by the decision quieted in their possession, so far as any claim of the city or state could be urged against them. property to the value of many millions was thereby rescued from the spoiler and speculator, and secured to the city or settler. peace was given to thousands of homes. yet for this just and most beneficent judgment there went up from a multitude, who had become interested in the sales, a fierce howl of rage and hate. attacks full of venom were made upon judge baldwin and myself, who had agreed to the decision. no epithets were too vile to be applied to us; no imputations were too gross to be cast at us. the press poured out curses upon our heads. anonymous circulars filled with falsehoods, which malignity alone could invent, were spread broadcast throughout the city, and letters threatening assassination in the streets or by-ways were sent to us through the mail. the violence of the storm, however, was too great to last. gradually it subsided and reason began to assert its sway. other words than those of reproach were uttered; and it was not many months before the general sentiment of the people of the city was with the decision. a year did not elapse before the great good it had conferred upon the city and settler was seen and appreciated. since then its doctrines have been repeatedly re-affirmed. they have been approved by the supreme court of the united states; and now no one doubts their soundness. after that decision there was still wanting for the complete settlement of titles in the city the confirmation by the tribunals of the united states of her claim to the lands. the act of congress of march 3d, 1851, creating the board of land commissioners, provided that all claims to land in california, by virtue of any right or title derived from the spanish or mexican government, should be presented to the board for examination and adjudication. accordingly, the city of san francisco, soon after the organization of the board, in 1852, presented her claim for four square leagues as successor of the _pueblo_, and asked for its confirmation. in december, 1854, the board confirmed the claim for a portion of the four square leagues, but not for the whole; the portion confirmed being embraced within the charter limits of 1851. the city was dissatisfied with this limitation, and appealed from the decision of the commissioners to the district court of the united states. an appeal was also taken by the united states, but was subsequently withdrawn. the case remained in the district court without being disposed of until september, 1864, nearly ten years, when, under the authority of an act of congress of july 1st of that year, it was transferred to the circuit court of the united states. whilst the case was pending in the district court, the population of the city had increased more than four-fold; and improvements of a costly character had been made in all parts of it. the magnitude of the interests which had thus grown up demanded that the title to the land upon which the city rested should be in some way definitely settled. to expedite this settlement, as well as the settlement of titles generally in the state, was the object of the act of july 1st, 1864. its object is so stated in its title. it was introduced by senator conness, of california, who was alive to everything that could tend to advance the interests of the state. he felt that nothing would promote its peace and prosperity more than giving security to its land titles, and he labored earnestly to bring about that result. in framing the act, he consulted me, and at my suggestion introduced sections four, five, and seven, which i drafted and gave to him, but without the exception and proviso to the fifth section, which were added at the request of the commissioner of the land office.[4] the fourth section authorized the district court to transfer to the circuit court cases pending before it arising under the act of march 3d, 1851, affecting the title to lands within the corporate limits of a city or town, and provided that in such cases both the district and circuit judges might sit. by the fifth section, all the right and title of the united states to the land within the corporate limits of the city, as defined by its charter of 1851, were relinquished and granted to the city and its successors for the uses and purposes specified in the van ness ordinance. the exceptions incorporated at the suggestion of the commissioner of the land office related to parcels of land previously or then occupied by the united states for military, naval, or other public purposes, and such other parcels as might be subsequently designated for such purposes by the president within one year after the return to the land office of an approved plat of the exterior limits of the city. the holders of grants from the authorities of the _pueblo_ and the occupants of land within the limits of the charter of 1851 were thus quieted in their possessions. but as the claim of the city was for a much greater quantity, the case for its confirmation was still prosecuted. under the fourth section it was transferred to the circuit court, as already stated; and it was soon afterwards brought to a hearing. on the 30th of october, 1864, it was decided. for some reason i do not now recall, the district judge was unable to sit with me, and the case was, therefore, heard before me alone. i held that a pueblo of some kind existed at the site of the present city of san francisco upon the cession of the country; that as such it was entitled to the possession of certain lands to the extent of four square leagues; and that the present city had succeeded to such rights, following, in these particulars, the decision which had previously been made in the case of hart vs. burnett, by the supreme court of the state, in which i had participated. i accordingly decided that the city was entitled to have her claim confirmed to four square leagues of land, subject to certain reservations. but i also added that the lands to which she was entitled had not been given to her by the laws of the former government in absolute property with full right of disposition and alienation, but to be held in trust for the benefit of the whole community, with such powers of use, disposition, and alienation as had been or might thenceforth be conferred upon her or her officers for the execution of the trust. the trust character of the city's title was expressed in the decree of confirmation. the decision was rendered on the 30th of october, 1864, as stated, and a decree was soon afterwards entered; but as a motion was made for a re-hearing, the control over it was retained by the circuit court until may of the following year. upon the suggestion of counsel, it was then modified in some slight particulars so as to limit the confirmation to land above ordinary high water mark, as it existed at the date of the acquisition of the country, namely, the 7th of july, 1846. on the 18th of may, 1865, the decree was finally settled and entered. appeals from it were prosecuted to the supreme court both by the united states and by the city; by the united states from the whole decree, and by the city from so much of it as included certain reservations in the estimate of the quantity of land confirmed. in october following i proceeded as usual to washington to attend the then approaching term of the supreme court, and thought no more of the case until my attention was called to it by a most extraordinary circumstance. just before leaving san francisco mr. rulofson, a photographer of note, requested me to sit for a photograph, expressing a desire to add it to his gallery. i consented, and a photograph of a large size was taken. as i was leaving his rooms he observed that he intended to make some pictures of a small size from it, and would send me a few copies. on the morning of the 13th of january following (1866), at washington, mr. delos lake, a lawyer of distinction in california, at one time a district judge of the state, and then district attorney of the united states, joined me, remarking, as he did so, that the arrival of the california steamer at new york had been telegraphed, and he hoped that i had received some letters for him, as he had directed his letters to be forwarded to my care. i replied that when i left my room my messenger had not brought my mail; but if he would accompany me there we would probably find it. accordingly, we proceeded to my room, where on the centre-table lay my mail from california, consisting of a large number of letters and papers. among them i noticed a small package about an inch and a half thick, three inches in breadth, and three and a half in length. it was addressed as follows, the words being printed: [illustration: per steamer. [three postage stamps.] hon. stephen j. field, washington, d.c.] it bore the stamp of the san francisco post-office upon the address. my name had evidently been cut from the california reports, but the words "washington, d.c.," and "per steamer," had been taken from a newspaper. the slips were pasted on the package. on the opposite side were the words in print: [illustration: from geo. h. johnson's pioneer gallery, 645 and 649 clay street, san francisco.] as i took up the package i remarked that this must come from rulofson;--no, i immediately added, rulofson has nothing to do with the pioneer gallery. it then occurred to me that it might be a present for my wife, recollecting at the moment that the mail came by the steamer which sailed from san francisco about christmas time. it may be, i said to myself, a christmas present for my wife. i will open it just far enough to see, and, if it be intended for her, i will close it and forward it to new york, where she was at the time. i accordingly tore off the covering and raised the lid just far enough to enable me to look inside. i was at once struck with the black appearance of the inside. "what is this, lake?" i said, addressing myself to my friend. judge lake looked over my shoulder into the box, as i held it in my hand, and at once exclaimed, "it is a torpedo. don't open it." i was startled by the suggestion, for the idea of a torpedo was the last thing in the world to occur to me. i immediately laid the package on the sill of the window, where it was subjected to a careful inspection by us both, so far as it could be made with the lid only an eighth of an inch open. soon afterwards judge lake took the package to the capitol, which was directly opposite to my rooms, and to the office of the clerk of the supreme court, and showed it to mr. broom, one of the deputies. they dipped the package into water and left it to soak for some minutes. they then took it into the carriage way under the steps leading to the senate chamber, and shielding themselves behind one of the columns threw the box against the wall. the blow broke the hinge of the lid and exposed the contents. a murderous contrivance it was;--a veritable infernal machine! twelve cartridges such as are used in a common pistol, about an inch in length, lay imbedded in a paste of some kind, covered with fulminating powder, and so connected with a bunch of friction matches, a strip of sand-paper, and a piece of linen attached to the lid, that on opening the box the matches would be ignited and the whole exploded. the package was sent to the war department, and the following report was returned, giving a detailed description of the machine: washington arsenal, _jan. 16, 1866_. _gen. a.b. dyer, chief of ordnance, washington, d.c._ sir: agreeably to your instructions, i have examined the explosive machine sent to this arsenal yesterday. it is a small miniature case containing twelve copper cartridges, such as are used in a smith & wesson pocket pistol, a bundle of sensitive friction matches, a strip of sand-paper, and some fulminating powder. the cartridges and matches are imbedded in common glue to keep them in place. the strip of sand-paper lies upon the heads of the matches. one end has been thrown back, forming a loop, through which a bit of thread evidently passed to attach it to the lid of the case. this thread may be seen near the clasp of the lid, broken in two. there are two wire staples, under which the strip of sand-paper was intended to pass to produce the necessary pressure on the matches. the thread is so fixed that the strip of sand-paper could be secured to the lid after it was closed. the whole affair is so arranged that the opening of the lid would necessarily ignite the matches, were it not that the lower end of the strip has become imbedded in the glue, which prevents it from moving. that the burning of the matches may explode the cartridges, there is a hole in each case, and all are covered with mealed powder. one of the cartridges has been examined and found to contain ordinary grain powder. two of the cartridges were exploded in a closed box sent herewith. the effect of the explosion was an indentation on one side of the box. very respectfully, your obedient servant, j.g. benton, _major of ord. and bvt. col. comdg._ between the outside covering and the box there were two or three folds of tissue-paper--placed there, no doubt, to prevent the possibility of an explosion from the stamping at the post office, or the striking against other packages during the voyage from san francisco to new york. on the inside of the lid was pasted a slip cut from a san francisco paper, dated october 31st, 1864, stating that on the day previous i had decided the case of the city against the united states, involving its claim to four square leagues of land, and giving the opening lines of my opinion. the secretary of war, mr. stanton, immediately telegraphed in cypher to general halleck, then in command in san francisco, to take active measures to find out, if possible, the person who made and sent the infernal machine. general halleck put the detectives of his department on the search. others employed detectives of the san francisco police--but all in vain. suspicions were excited as to the complicity of different parties, but they were never sustained by sufficient evidence to justify the arrest of any one. the instrument, after remaining in the hands of the detectives in san francisco for nearly two years, was returned to me and it is now in my possession.[5] it has often been a matter of wonder to me how it was that some good angel whispered to me not to open the box. my impetuous temperament would naturally have led me to tear it open without delay. probably such hesitation in opening a package directed to me never before occurred, and probably never will again. who knows but that a mother's prayer for the protection of her son, breathed years before, was answered then? who can say that her spirit was not then hovering over him and whispering caution in his ear? that i should on that occasion have departed from my usual mode of action is strange--passing strange. * * * * * as already stated, the fifth section of the act of congress of july 1st, 1864, which granted the interest of the united states to the lands within the charter limits of 1851 to the city and its successors, in trust for the benefit of possessors under the van ness ordinance, among other things provided for certain reservations to be subsequently made by the president, within one year after an approved plat showing the exterior limits of the city had been filed in the land office. no such map was filed nor were any reservations made. the case on appeal in the meantime was not reached in the supreme court, and was not likely to be for a long period. ascertaining from general halleck that the secretary of war would not recommend any further reservations to be made from the municipal lands, and that probably none would be made, i drew a bill to quiet the title of the city to all the lands embraced within the decree of confirmation, and gave it to senator conness, who being ready, as usual, to act for the interests of the city, immediately took charge of it and secured its passage in the senate. in the house mr. mcruer, member of congress from california, took charge of it, and with the assistance of the rest of the delegation from the state, procured its passage there. it was signed by the president and became a law on the 8th of march, 1866. by it all the right and title of the united states to the land covered by the decree of the circuit court were relinquished and granted to the city, and the claim to the land was confirmed, subject, however, to certain reservations and exceptions; and upon trust that all the land not previously granted to the city, should be disposed of and conveyed by the city to the parties in the bona fide actual possession thereof, by themselves or tenants, on the passage of the act, in such quantities, and upon such terms and conditions, as the legislature of the state of california might prescribe, except such parcels thereof as might be reserved and set apart by ordinance of the city for public uses. not long afterwards both the appeals to the supreme court were dismissed by stipulation of parties. the litigation over the source of title to lands within the limits of the city, not disposed of by independent grants of the government previous to the acquisition of the country, was thus settled and closed. the title of the city rests, therefore, upon the decree of the circuit court entered on the 18th day of may, 1865, and this confirmatory act of congress. it has been so adjudged by the supreme court of the united states.--(see townsend vs. greely, 5 wall., 337; grisar vs. mcdowell, 6 wall., 379.) the title of the city being settled, the municipal authorities took measures, under the provisions of the confirmatory act, to set apart lands for school-houses, hospitals, court-house buildings, and other public purposes, and through their exertions, instigated and encouraged by mr. mccoppin, the accomplished and efficient mayor of the city at that time, the ocean park, which looks out upon the pacific ocean and the golden gate, and is destined to be one of the finest parks in the world, was set apart and secured to the city for all time. as the grounds thus taken were, in many instances, occupied by settlers, or had been purchased from them, an assessment was levied by the city and sanctioned by the legislature upon other lands conveyed to the occupants, as a condition of their receiving deeds from the city; and the money raised was applied to compensate those whose lands had been appropriated. [1] mr. justice clifford. [2] cornwall vs. culver, 16 cal., 429. [3] van reynegan vs. bolton, 95 u.s., 33. [4] see exhibit j, in appendix. [5] see exhibit k, in appendix. hostility to the supreme court after the civil war.--the scofield resolution. the irritations and enmities created by the civil war did not end with the cessation of active hostilities. they were expressed whenever any acts of the military officers of the united states were called in question; or any legislation of the states or of congress in hostility to the insurgents was assailed; or the validity of the "reconstruction acts" was doubted. and they postponed that cordial reconciliation which all patriotic men earnestly desired. the insurrection was overthrown after a contest which, for its magnitude and the number and courage of the belligerents, was without a parallel in history. the immense loss of life and destruction of property caused by the contest, and the burden of the enormous debt created in its prosecution, left a bitterness in the hearts of the victors which it was difficult to remove. the assassination of mr. lincoln added intensity to the feeling. that act of a madman, who had conceived the idea that he might become in our history what brutus was in the history of rome, the destroyer of the enemy of his country, was ascribed to a conspiracy of leading confederates. the proclamation of the secretary of war, offering a reward for the arrest of parties charged with complicity in the act, gave support to this notion. the wildest stories, now known to have had no foundation, were circulated and obtained ready credence among the people of the north, already wrought up to the highest pitch of excitement. they manifested, therefore, great impatience when a doubt was cast upon the propriety or validity of the acts of the government, or of its officers, which were taken for the suppression of the rebellion or "the reconstruction" of the states; and to question their validity was almost considered proof of hostility to the union. by those who considered the union indissoluble, except by the common consent of the people of the several states, the organization known as the confederate states could only be regarded as unlawful and rebellious, to be suppressed, if necessary, by force of arms. the constitution prohibits any treaty, alliance, or confederation by one state with another, and it declares on its face that it is the supreme law of the land. the confederate government, therefore, could only be treated by the united states as the military representative of the insurrection against their authority. belligerent rights were accorded to its armed forces in the conduct of the war, and they thus had the standing and rights of parties engaged in lawful warfare. but no further recognition was ever given to it, and when those forces were overthrown its whole fabric disappeared. but not so with the insurgent states which had composed the confederacy. they retained the same form of government and the same general system of laws, during and subsequent to the war, which they had possessed previously. their organizations as distinct political communities were not destroyed by the war, although their relations to the central authority were changed. and their acts, so far as they did not impair or tend to impair the supremacy of the general government, or the rights of citizens of the loyal states, were valid and binding. all the ordinary authority of government for the protection of rights of persons and property, the enforcement of contracts, the punishment of crime, and the due order of society, continued to be exercised by them as though no civil war had existed. there was, therefore, a general expectation throughout the country, upon the cessation of actual hostilities, that these states would be restored to their former relations in the union as soon as satisfactory evidence was furnished to the general government that resistance to its authority was overthrown and abandoned, and its laws were enforced and obeyed. some little time might elapse before this result would clearly appear. it was not expected that they would be immediately restored upon the defeat of the armies of the confederacy, nor that their public men, with the animosities of the struggle still alive, would at once be admitted into the councils of the nation, and allowed to participate in its government. but whenever it was satisfactorily established that there would be no renewal of the struggle and that the laws of the united states would be obeyed, it was generally believed that the restoration of the states would be an accomplished fact. president johnson saw in the institution of slavery the principal source of the irritation and ill-feeling between the north and the south, which had led to the war. he believed, therefore, that its abolition should be exacted, and that this would constitute a complete guaranty for the future. at that time the amendment for its abolition, which had passed the two houses of congress, was pending before the states for their action. he was of opinion, and so expressed himself in his first message to congress, that its ratification should be required of the insurgent states on resuming their places in the family of the union; that it was not too much, he said, to ask of them "to give this pledge of perpetual loyalty and peace." "until it is done," he added, "the past, however much we may desire it, will not be forgotten. the adoption of the amendment re-unites us beyond all power of disruption. it heals the wound that is still imperfectly closed; it removes slavery, the element which has so long perplexed and divided the country; it makes of us once more a united people, renewed and strengthened, bound more than ever to mutual affection and support." it would have been most fortunate for the country had this condition been deemed sufficient and been accepted as such. but the north was in no mood for a course so simple and just. its leaders clamored for more stringent measures, on the ground that they were needed for the protection of the freedmen, and the defeat of possible schemes for a new insurrection. it was not long, therefore, before a system of measures was adopted, which resulted in the establishment at the south of temporary governments, subject to military control, the offices of which were filled chiefly by men alien to the states and indifferent to their interests. the misrule and corruption which followed are matters of public history. it is no part of my purpose to speak of them. i wish merely to refer to the state of feeling existing upon the close of the civil war as introductory to what i have to say of the unfriendly disposition manifested at the north towards the supreme court and some of its members, myself in particular. acts of the military officers, and legislation of some of the states and of congress, during and immediately succeeding the war, were soon brought to the consideration of the court. its action thereon was watched by members of the republican party with manifest uneasiness and distrust. its decision in the dred scott case had greatly impaired their confidence in its wisdom and freedom from political influences. many of them looked upon that decision as precipitating the war upon the country, by the sanction it gave to efforts made to introduce slavery into the territories; and they did not hesitate to express their belief that the sympathies of a majority of the court were with the confederates. intimations to that effect were thrown out in some of the journals of the day, at first in guarded language, and afterwards more directly, until finally it came to be generally believed that it was the purpose of the court, if an opportunity offered, to declare invalid most of the legislation relating to the southern states which had been enacted during the war and immediately afterwards. nothing could have been more unjust and unfounded. many things, indeed, were done during the war, and more after its close, which could not be sustained by any just construction of the limitations of the constitution. it was to be expected that many things would be done in the heat of the contest which could not bear the examination of calmer times. mr. chief justice chase expressed this fact in felicitous language when speaking of his own change of views as to the validity of the provision of law making government notes a legal tender, he said: "it is not surprising that amid the tumult of the late civil war, and under the influence of apprehensions for the safety of the republic almost universal, different views, never before entertained by american statesmen or jurists, were adopted by many. the time was not favorable to considerate reflection upon the constitutional limits of legislative or executive authority. if power was assumed from patriotic motives, the assumption found ready justification in patriotic hearts. many who doubted yielded their doubts; many who did not doubt were silent. those who were strongly averse to making government notes a legal tender felt themselves constrained to acquiesce in the views of the advocates of the measure. not a few who then insisted upon its necessity, or acquiesced in that view, have, since the return of peace, and under the influence of the calmer time, reconsidered this conclusion, and now concur in those which we have just announced." similar language might be used with reference to other things done during the war and afterwards, besides making government notes a legal tender. the court and all its members appreciated the great difficulties and responsibilities of the government, both in the conduct of the war, and in effecting an early restoration of the states afterwards, and no disposition was manifested at any time to place unnecessary obstacles in its way. but when its measures and legislation were brought to the test of judicial judgment there was but one course to pursue, and that was to apply the law and the constitution as strictly as though no war had ever existed. the constitution was not one thing in war, and another in peace. it always spoke the same language, and was intended as a rule for all times and occasions. it recognized, indeed, the possibility of war, and, of course, that the rules of war had to be applied in its conduct in the field of military operations. the court never presumed to interfere there, but outside of that field, and with respect to persons not in the military service within states which adhered to the union, and after the war in all the states, the court could not hesitate to say that the constitution, with all its limitations upon the exercise of executive and legislative authority, was, what it declares on its face to be, the supreme law of the land, by which all legislation, state and federal, must be measured. the first case growing out of the acts of military officers during the war, which attracted general attention and created throughout the north an uneasy feeling, was the milligan case, which was before the court on habeas corpus. in october, 1864, milligan, a citizen of the united states and a resident of indiana, had been arrested by order of the military commander of the district and confined in a military prison near the capital of the state. he was subsequently, on the 21st of the same month, put on trial before a military commission convened at indianapolis, in that state, upon charges of: 1st. conspiring against the government of the united states; 2d. affording aid and comfort to the rebels against the authority of the united states; 3d. inciting insurrection; 4th. disloyal practices; and 5th. violations of the laws of war; and was found guilty and sentenced to death by hanging. he had never been in the military service; there was no rebellion in indiana; and the civil courts were open in that state and in the undisturbed exercise of their jurisdiction. the sentence of the military commission was affirmed by the president, who directed that it should be carried into immediate execution. the condemned thereupon presented a petition to the circuit court of the united states in indiana for a writ of habeas corpus, praying to be discharged from custody, alleging the illegality of his arrest and of the proceedings of the military commission. the judges of the circuit court were divided in opinion upon the question whether the writ should be issued and the prisoner be discharged, which, of course, involved the jurisdiction of the military commission to try the petitioner. upon a certificate of the division the case was brought to the supreme court at the december term of 1865. the case has become historical in the jurisprudence of the country, and it is unnecessary to state the proceedings at length. suffice it to say that it was argued with great ability by eminent counsel--consisting of mr. joseph e. mcdonald, now u.s. senator from indiana, mr. james a. garfield, a distinguished member of congress, mr. jeremiah s. black, the eminent jurist of pennsylvania, and mr. david dudley field, of new york, for the petitioner; and by mr. henry stanbery, the attorney-general, and gen. b.f. butler, for the government. their arguments were remarkable for learning, research, ability, and eloquence, and will repay the careful perusal not only of the student of law, but of all lovers of constitutional liberty. only a brief synopsis of them is given in the report of the case in 4th wallace. the decision of the court was in favor of the liberty of the citizen. its opinion was announced by mr. justice davis, and it will stand as a perpetual monument to his honor. it laid down in clear and unmistakable terms the doctrine that military commissions organized during the war, in a state not invaded nor engaged in rebellion, in which the federal courts were open and in the undisturbed exercise of their judicial functions, had no jurisdiction to try a citizen who was not a resident of a state in rebellion, nor a prisoner of war, nor a person in the military or naval service; and that congress could not invest them with any such power; and that in states where the courts were thus open and undisturbed the guaranty of trial by jury contained in the constitution was intended for a state of war as well as a state of peace, and is equally binding upon rulers and people at all times and under all circumstances. this decision was concurred in by justices nelson, grier, clifford, and myself, then constituting, with justice davis, a majority of the court. at this day it seems strange that its soundness should have been doubted by any one, yet it was received by a large class--perhaps a majority of the northern people--with disfavor, and was denounced in unmeasured terms by many influential journals. it was cited as conclusive evidence of the hostility of the court to the acts of the government for the suppression of the rebellion. the following, taken from the _daily chronicle_ of january 14th, 1867, a journal of washington, edited by mr. forney, then secretary of the senate, is a fair sample of the language applied to the decision: "the opinion of the supreme court on one of the most momentous questions ever submitted to a judicial tribunal, has not startled the country more by its far-reaching and calamitous results, than it has amazed jurists and statesmen by the poverty of its learning and the feebleness of its logic. it has surprised all, too, by its total want of sympathy with the spirit in which the war for the union was prosecuted, and, necessarily, with those great issues growing out of it, which concern not only the life of the republic, but the very progress of the race, and which, having been decided on the battle-field, are now sought to be reversed by the very theory of construction which led to rebellion." at the same term with the milligan case the test-oath case from missouri was brought before the court and argued. in january, 1865, a convention had assembled in that state to amend its constitution. its members had been elected in november previous. in april, 1865, the constitution, as revised and amended, was adopted by the convention, and in june following by the people. elected, as the members were, in the midst of the war, it exhibited throughout traces of the animosities which the war had engendered. by its provisions the most stringent and searching oath as to past conduct known in history was required, not only of officers under it, but of parties holding trusts and pursuing avocations in no way connected with the administration of the government. the oath, divided into its separates parts, contained more than thirty distinct affirmations touching past conduct, and even embraced the expression of sympathies and desires. every person unable to take the oath was declared incapable of holding, in the state, "any office of honor, trust, or profit under its authority, or of being an officer, councilman, director, or trustee, or other manager of any corporation, public or private, now existing or hereafter established by its authority, or of acting as a professor or teacher in any educational institution, or in any common or other school, or of holding any real estate or other property in trust for the use of any church, religious society, or congregation." and every person holding, at the time the amended constitution took effect, any of the offices, trusts, or positions mentioned, was required, within sixty days thereafter, to take the oath; and, if he failed to comply with this requirement, it was declared that his office, trust, or position should _ipso facto_ become vacant. no person, after the expiration of the sixty days, was permitted, without taking the oath, "to practice as an attorney or counsellor-at-law," nor, after that period could "any person be competent as a bishop, priest, deacon, minister, elder, or other clergyman, of any religious persuasion, sect, or denomination, to teach, or preach, or solemnize marriages." fine and imprisonment were prescribed as a punishment for holding or exercising any of "the offices, positions, trusts, professions, or functions" specified, without having taken the oath; and false swearing or affirmation in taking it was declared to be perjury, punishable by imprisonment in the penitentiary. mr. cummings of missouri, a priest of the roman catholic church, was indicted and convicted in one of the circuit courts of that state, of the crime of teaching and preaching as a priest and minister of that religious denomination without having first taken the oath thus prescribed, and was sentenced to pay a fine of five hundred dollars and to be committed to jail until the same was paid. on appeal to the supreme court of the state the judgment was affirmed, and the case was brought on a writ of error to our court. it was there argued with great learning and ability by mr. montgomery blair, of washington, mr. david dudley field, of new york, and mr. reverdy johnson, of maryland, for mr. cummings; and by mr. g.p. strong and mr. john b. henderson, of missouri, the latter then united states senator for the state. it was evident, after a brief consideration of the case, that the power asserted by the state of missouri to exact this oath for past conduct from parties, as a condition of their continuing to pursue certain professions, or to hold certain trusts, might, if sustained, be often exercised in times of excitement to the oppression, if not ruin, of the citizen. for, if the state could require the oath for the acts mentioned, it might require it for any other acts of one's past life, the number and character of which would depend upon the mere will of its legislature. it might compel one to affirm, under oath, that he had never violated the ten commandments, nor exercised his political rights except in conformity with the views of the existing majority. indeed, under this kind of legislation, the most flagrant wrongs might be committed and whole classes of people deprived, not only of their political, but of their civil rights. it is difficult to speak of the whole system of expurgatory oaths for past conduct without a shudder at the suffering and oppression they were not only capable of effecting but often did effect. such oaths have never been exacted in england, nor on the continent of europe; at least i can recall no instance of the kind. test-oaths there have always been limited to an affirmation on matters of present belief, or as to present disposition towards those in power. it was reserved for the ingenuity of legislators in our country during the civil war to make test-oaths reach to past conduct. the court held that enactments of this character, operating, as they did, to deprive parties by legislative decree of existing rights for past conduct, without the formality and the safeguard of a judicial trial, fell within the inhibition of the constitution against the passage of bills of attainder. in depriving parties of existing rights for past conduct, the provisions of the constitution of missouri imposed, in effect, a punishment for such conduct. some of the acts for which such deprivation was imposed were not punishable at the time; and for some this deprivation was added to the punishments previously prescribed, and thus they fell under the further prohibition of the constitution against the passage of an _ex post facto_ law. the decision of the court, therefore, was for the discharge of the catholic priest. the judgment against him was reversed, and the supreme court of missouri was directed to order the inferior court by which he was tried to set him at liberty. immediately following the case of cummings that of _ex-parte_ garland was argued, involving the validity of the iron-clad oath, as it was termed, prescribed for attorneys and counsellors-at-law by the act of congress of january 24th, 1865. mr. a.h. garland, now united states senator from arkansas, had been a member of the bar of the supreme court of the united states before the civil war. when arkansas passed her ordinance of secession and joined the confederate states, he went with her, and was one of her representatives in the congress of the confederacy. in july, 1865, he received from the president a full pardon for all offences committed by his participation, direct or implied, in the rebellion. at the following term of the court he produced his pardon and asked permission to continue to practice as an attorney and counsellor without taking the oath required by the act of congress, and the rule of the court made in conformity with it, which he was unable to take by reason of the offices he had held under the confederate government. the application was argued by mr. matthew h. carpenter, of wisconsin, and mr. reverdy johnson, of maryland, for the petitioner--mr. garland and mr. marr, another applicant for admission, who had participated in the rebellion, filing printed arguments--and by mr. speed, of kentucky, and mr. henry stanbery, the attorney-general, on the other side. the whole subject of expurgatory oaths was discussed, and all that could be said on either side was fully and elaborately presented. the court in its decision followed the reasoning of the cummings case and held the law invalid, as applied to the exercise of the petitioner's right to practice his profession; that such right was not a mere indulgence, a matter of grace and favor, revocable at the pleasure of the court, or at the command of the legislature; but was a right of which the petitioner could be deprived only by the judgment of the court for moral or professional delinquency. the court also held that the pardon of the petitioner released him from all penalties and disabilities attached to the offence of treason committed by his participation in the rebellion, and that, so far as that offence was concerned, he was placed beyond the reach of punishment of any kind. but to exclude him by reason of that offence--that is, by requiring him to take an oath that he had never committed it--was to enforce a punishment for it notwithstanding the pardon; and that it was not within the constitutional power of congress thus to inflict punishment beyond the reach of executive clemency. i had the honor to deliver the opinion of the court in these cases--the cummings case and the garland case. at the present day both opinions are generally admitted to be sound, but when announced they were received by a portion of the northern press with apparent astonishment and undisguised condemnation. it is difficult to appreciate at this day the fierceness with which the majority of the court was assailed. that majority consisted of justices wayne, nelson, grier, clifford, and myself. i was particularly taken to task, however, as it was supposed--at least i can only so infer from the tone of the press--that because i had been appointed by mr. lincoln, i was under some sort of moral obligation to support all the measures taken by the states or by congress during the war. the following, respecting the opinion in the garland case, from the editor of the _daily chronicle_, of washington, to the _press_, of philadelphia, under date of january 16, 1867, is moderate in its language compared with what appeared in many other journals: "dred scott number three has just been enacted in the supreme court of the united states, justice field, of california, taking the leading part as the representative of the majority decision against the constitutionality of the iron-clad test-oath, to prevent traitors from practicing before that high tribunal. i understand it takes the ground that, as the law is a living or profession, the oath cannot be insisted upon to take that living away, and that the president's pardon restores all such rights. the country has been repeatedly admonished that such a decision would be made about this time; nevertheless, a very considerable sensation was created when it was officially enunciated. all these movements are but preparations for a counter-revolution in the interest of slavery and treason." ---"i learn that the opinion of justice field against the test-oath, like that against military trials in time of war, goes outside of the immediate case in issue, and indulges in a fierce onslaught upon test-oaths in general. if so, it will only add another reason for such a re-organization as will prevent the judges in the last resort from becoming the mere agents of party, or the mere defenders of rebellion. the adage constantly quoted, yet never out of fashion, that 'whom the gods wish to destroy they first make mad,' is having a pointed illustration in these successive judicial assaults upon the rights of the people. although the supreme judges hold for life, there is at once precedent, necessity, and law for such a change in the present system as will in a short time make it a fearless interpreter of republican institutions, instead of the defender and apologist of treason." the decisions were announced on the 14th of january, 1867. on the 22d of the month, mr. boutwell, from massachusetts, introduced a bill into the house far more stringent in its provisions than the act of congress just declared invalid. it was a pitiable exhibition of hate and vengeance against all persons who had been engaged, directly or indirectly, in the rebellion. it declared that no person who had been thus engaged should be permitted to act as an attorney and counsellor in any courts of the united states; and made it the duty of the judges, when it was suggested in open court, or when they had reason to believe that any person was thus debarred, to enquire and ascertain whether he had been so engaged, and if the court was of opinion that such was the fact, he was to be excluded. the court was thus, upon the suggestion of any one, to be turned into a tribunal for the summary trial of the accused without the ordinary safeguards for the protection of his rights. in introducing it mr. boutwell, referring to the decision of the court, said that- "if there be five judges upon the bench of the highest tribunal who have not that respect for themselves to enact rules, and to enforce proper regulations, by which they will protect themselves from the contamination of conspirators and traitors against the government of the country, then the time has already arrived when the legislative department of the government should exercise its power to declare who shall be officers of the government in the administration of the law in the courts of the union; and this bill is for that purpose." and he called for the previous question upon it. in subsequently advocating its passage, he said: "i say here upon my responsibility, with reference to the recent decision of the supreme court, that it is an offence to the dignity and respectability of the nation that this tribunal, under the general authority vested in it under the constitution and laws, does not protect itself from the contamination of rebels and traitors, until the rebellion itself shall be suppressed and those men shall be restored to their former rights as citizens of the country." this language was used in 1867, and the last gun of the war had been fired in may, 1865. it showed the irritation of violent partisans of the north against the court because it gave no sanction to their vindictive and proscriptive measures. the bill was passed, under a suspension of the rules, by a vote of 111 to 40.[1] the reconstruction acts, so-called--that is, "an act to provide for the more efficient government of the rebel states," of march 2d, 1867, and an act of the 23d of the same month, supplementary to the former--were at once attacked, as may well be supposed, as invalid, unconstitutional, and arbitrary measures of the government; and various steps were taken at an early day to bring them to the test of judicial examination and arrest their enforcement. those acts divided the late insurgent states, except tennessee, into five military districts, and placed them under military control to be exercised until constitutions, containing various provisions stated, were adopted and approved by congress, and the states declared to be entitled to representation in that body. in the month of april following the state of georgia filed a bill in the supreme court, invoking the exercise of its original jurisdiction, against stanton, secretary of war, grant, general of the army, and pope, major-general, assigned to the command of the third military district, consisting of the states of georgia, florida, and alabama; to restrain those officers from carrying into effect the provisions of those acts. the bill set forth the existence of the state of georgia as one of the states of the union; the civil war in which she, with other states forming the confederate states, had been engaged with the government of the united states; the surrender of the confederate armies in 1865, and her submission afterwards to the constitution and laws of the union; the withdrawal of the military government from georgia by the president as commander-in-chief of the army of the united states; the re-organization of the civil government of the state under his direction and with his sanction; and that the government thus re-organized was in the full possession and enjoyment of all the rights and privileges, executive, legislative, and judicial, belonging to a state in the union under the constitution, with the exception of a representation in the senate and house of representatives. the bill alleged that the acts were designed to overthrow and annul the existing government of the state, and to erect another and a different government in its place, unauthorized by the constitution and in defiance of its guarantees; that the defendants, acting under orders of the president, were about to set in motion a portion of the army to take military possession of the state, subvert her government, and subject her people to military rule. the presentation of this bill and the argument on the motion of the attorney-general to dismiss it produced a good deal of hostile comment against the judges, which did not end when the motion was granted. it was held that the bill called for judgment upon a political question, which the court had no jurisdiction to entertain.[2] soon afterwards the validity of the reconstruction acts was again presented in the celebrated mcardle case, and in such a form that the decision of the question could not well be avoided. in november, 1867, mcardle had been arrested and held in custody by a military commission organized in mississippi under the reconstruction acts, for trial upon charges of (1) disturbance of the public peace; (2) inciting to insurrection, disorder, and violence; (3) libel; and (4) impeding reconstruction. he thereupon applied to the circuit court of the united states for the district of mississippi for a writ of habeas corpus, in order that he might be discharged from his alleged illegal imprisonment. the writ was accordingly issued, but on the return of the officer showing the authority under which the petitioner was held, he was ordered to be remanded. from that judgment he appealed to the supreme court. of course, if the reconstruction acts were invalid, the petitioner could not be held, and he was entitled to his discharge. the case excited great interest throughout the country. judge sharkey and robert j. walker, of mississippi, david dudley field and charles o'connor, of new york, and jeremiah s. black, of pennsylvania, appeared for the appellant; and matthew h. carpenter, of wisconsin, lyman trumbull, of illinois, and henry stanbery, the attorney-general, appeared for the other side. the hearing of it occupied four days, and seldom has it been my fortune during my judicial life, now (1877) of nearly twenty years, to listen to arguments equal in learning, ability, and eloquence. the whole subject was exhausted. as the arguments were widely published in the public journals, and read throughout the country, they produced a profound effect. the impression was general that the reconstruction acts could not be sustained; that they were revolutionary and destructive of a republican form of government in the states, which the constitution required the federal government to guarantee. i speak now merely of the general impression. i say nothing of the fact, as the court never expressed its opinion in judgment. the argument was had on the 2d, 3d, 4th, and 9th of march, 1868, and it ought to have been decided in regular course of proceedings when it was reached on the second subsequent consultation day, the 21st. the judges had all formed their conclusions, and no excuse was urged that more time was wanted for examination. in the meantime an act was quietly introduced into the house, and passed, repealing so much of the law of february 5th, 1867, as authorized an appeal to the supreme court from the judgment of the circuit court on writs of _habeas corpus_, or the exercise of jurisdiction on appeals already taken. the president vetoed the bill, but congress passed it over his veto, and it became a law on the 27th of the month.[3] whilst it was pending in congress the attention of the judges was called to it, and in consultation on the 21st they postponed the decision of the case until it should be disposed of. it was then that mr. justice grier wrote the following protest, which he afterwards read in court: in re } mcardle.} protest of mr. justice geier. this case was fully argued in the beginning of this month. it is a case that involves the liberty and rights not only of the appellant, but of millions of our fellow-citizens. the country and the parties had a right to expect that it would receive the immediate and solemn attention of this court. by the postponement of the case we shall subject ourselves, whether justly or unjustly, to the imputation that we have evaded the performance of a duty imposed on us by the constitution, and waited for legislation to interpose to supersede our action and relieve us from our responsibility. i am not willing to be a partaker either of the eulogy or opprobrium that may follow; and can only say: "pudet haec opprobria nobis, et dici potuisse; et non potuisse repelli."[4] r.c. grier. i am of the same opinion with my brother grier, and unite in his protest. field, j. after the passage of the repealing act, the case was continued; and at the ensuing term the appeal was dismissed for want of jurisdiction.--(7 wall., 506.) the record had been filed early in the term, and, as the case involved the liberty of the citizen, it was advanced on the calendar on motion of the appellant. from that time until its final disposition the judges were subjected to close observation, and most of them to unfriendly comment. their every action and word were watched and canvassed as though national interests depended upon them. i was myself the subject of a most extraordinary exhibition of feeling on the part of members of the lower house of congress, the immediate cause of which was a circumstance calculated to provoke merriment. towards the close of january, 1868, i was invited to a dinner given by mr. samuel ward to the secretary of the treasury, mr. mccullough. it was understood that the dinner was to be one of unusual excellence, and that gentlemen of distinction in congress would be present. as some of the invited guests desired to go to new york on the same evening, the hour was fixed at five. a distinguished party assembled at that time at the rooms of welcker, a noted restaurateur in washington. our host, mr. ward, was a character deserving of special notice. he had been a member of the noted firm of bankers, prime, ward & king, of new york; and afterwards represented our government in brazil. he was an accomplished linguist, familiar with several languages, ancient and modern. he was a profound mathematician, and had read, without the assistance of bowditch's translation, laplace's celebrated work, the "mã©canique cã©leste." he passed most of his time during the sessions of congress in washington, looking after the interests of bankers and others in new york, as they might be affected by pending legislation. though called "king of the lobby," he had little of the character of the lobbyist. he was a gentleman in manners and education, and as such he always drew the company of gentlemen to his entertainments. on the occasion mentioned, some of the brightest spirits of congress were present. as we took our seats at the table i noticed on the menu a choice collection of wines, johannisberg among others. the dinner was sumptuous and admirably served. our host saw that the appropriate wine accompanied the successive courses. as the dinner progressed, and the wine circulated, the wit of the guests sparkled. story and anecdote, laughter and mirth abounded, and each guest seemed joyous and happy. at about eight song had been added to other manifestations of pleasure. i then concluded that i had better retire. so i said to my host, that if he would excuse me, i would seek the open air; and i left. just at this moment mr. rodman m. price, formerly governor of new jersey, made his appearance and exclaimed, "how is this? i was invited to dinner at eight"--producing his card of invitation. "look again," said ward, "and you will see that your eight is a five," and so it was, "but never mind," said ward; "the dinner is not over. judge field has just left. take his seat." and so price took my place. he had been travelling in the southern states, and had been an observer of the proceedings of various state conventions then in session to frame constitutions under the reconstruction acts, which he termed "congo conventions." to the amusement of the party he gave an account of some curious scenes he had witnessed in these conventions; and wound up one or two of his stories by expressing his opinion that the whole reconstruction measures would soon be "smashed up" and sent to "kingdom come" by the supreme court. the loud mirth and the singing attracted the attention of news-hunters for the press--item gatherers in the rooms below. unfortunately one of these gentlemen looked into the banquet-hall just as price had predicted the fate of the reconstruction measures at the hands of the supreme court. he instantly smelt news, and enquired of one of the waiters the name of the gentleman who had thus proclaimed the action of the court. the waiter quietly approached the seat of the governor, and, whilst he was looking in another direction, abstracted the card near his plate which bore my name. here was, indeed, a grand item for a sensational paragraph. straight way the newsgatherer communicated it to a newspaper in washington, and it appeared under an editorial notice. it was also telegraphed to a paper in baltimore. but it was too good to be lost in the columns of a newspaper. mr. scofield, a member of congress from pennsylvania, on the 30th of january, 1868, asked and obtained unanimous consent of the house to present the following preamble and resolution: "whereas it is editorially stated in the _evening express_, a newspaper published in this city, on the afternoon of wednesday, january 29, as follows: 'at a private gathering of gentlemen of both political parties, one of the justices of the supreme court spoke very freely concerning the reconstruction measures of congress, and declared in the most positive terms that all those laws were unconstitutional, and that the court would be sure to pronounce them so. some of his friends near him suggested that it was quite indiscreet to speak so positively; when he at once repeated his views in a more emphatic manner; 'and whereas several cases under said reconstruction measures are now pending in the supreme court: therefore, be it- "_resolved_, that the committee on the judiciary be directed to enquire into the truth of the declarations therein contained, and report whether the facts as ascertained constitute such a misdemeanor in office as to require this house to present to the senate articles of impeachment against said justice of the supreme court; and that the committee have power to send for persons and papers, and have leave to report at any time." an excited debate at once sprung up in the house, and in the course of it i was stated to be the offending justice referred to. thereupon the members for california vouched for my loyalty during the war. other members wished to know whether an anonymous article in a newspaper was to be considered sufficient evidence to authorize a committee of the house to enquire into the private conversation of members of the supreme court. the mover of the resolution, mr. scofield, declared that he knew nothing of the truth of the statement in the paper, but deemed it sufficient authority for his action, and moved the previous question on the resolution. several of the members protested against the resolution, declaring that it was unworthy of the house to direct an investigation into the conduct of a judicial officer upon a mere newspaper statement. but it was of no use. the resolution was adopted by a vote of 97 to 57--34 not voting. some members, indeed, voted for its passage, stating that it was due to myself that i should be vindicated from the charge implied in the debate; the force of which reason i have never been able to appreciate. the resolution was evidently intended to intimidate me, and to act as a warning to all the judges as to what they might expect if they presumed to question the wisdom or validity of the reconstruction measures of congress. what little effect it had on me my subsequent course in the mcardle case probably showed to the house. i had only one feeling for the movement--that of profound contempt; and i believe that a similar feeling was entertained by every right-thinking person having any knowledge of the proceeding. the facts of the case soon became generally known, and created a good deal of merriment in washington. but all through the country the wildest stories were circulated. communications of a sensational character relating to the matter were published in the leading journals. here is one which appeared in the new york _evening post_ from its correspondent: "it is the intention of the committee to examine the matter thoroughly, and in view of this a large number of witnesses have been summoned to appear on friday. "the friends of justice field are endeavoring to hush the matter up, and, if possible, to avert an investigation; but in this they will be disappointed, for the members of the judiciary committee express themselves firmly determined to sift the case, and will not hesitate to report articles of impeachment against justice field if the statements are proved." other papers called for the strictest scrutiny and the presentation of articles of impeachment, representing that i was terribly frightened by the threatened exposure. so for some months i was amused reading about my supposed terrible excitement in anticipation of a threatened removal from office. but, as soon as the author of the objectionable observations was ascertained, the ridiculous nature of the subsequent proceedings became manifest. the chairman of the judiciary committee, mr. wilson, of iowa, occupied a seat next to me at mr. ward's dinner, and knew, of course, that, so far as i was concerned, the whole story was without foundation. and so he said to his associates on the judiciary comnfittee. near the close of the session--on june 18th, 1868--the committee were discharged from the further consideration of the resolution, and it was laid on the table--a proceeding which was equivalent to its indefinite postponement. the amusing mistake which gave rise to this episode in the lower house of congress would be unworthy of the notice i have taken of it, except that it illustrates the virulent and vindictive spirit which occasionally burst forth for some time after the close of the war, and which, it is to be greatly regretted, is not yet wholly extinguished. [1] congressional globe, 39th congress, 2d session, part i., pp. 646-649. when the bill reached the senate it was referred to the judiciary committee, and by them to a sub-committee of which mr. stewart, senator from nevada, was chairman. he retained it until late in the session, and upon his advice, the committee then recommended its indefinite postponement. the bill was thus disposed of. [2] 6th wallace, 50. [3] 15 stats. at large, 44. [4] "it fills us with shame that these reproaches can be uttered, and cannot be repelled." the words are found in ovid's metamorphoses, book i., lines 758-9. in some editions the last word is printed _refelli_. the moulin vexation. soon after my appointment to the bench of the u.s. supreme court, i had a somewhat remarkable experience with a frenchman by the name of alfred moulin. it seems that this man, sometime in the year 1854 had shipped several sacks of onions and potatoes on one of the mail steamers, from san francisco to panama. during the voyage the ship's store of fresh provisions ran out, and the captain appropriated the vegetables, and out of this appropriation originated a long and bitter prosecution, or rather persecution, on the part of moulin, who proved to be not only one of the most malignant, but one of the most persevering and energetic men i have ever known. upon the return of the steamer from panama to san francisco, moulin presented himself at the steamship company's office, and complained, as he properly might, of the appropriation of his property, and demanded compensation. the company admitted his claim and expressed a willingness to make him full compensation; but when it came to an adjustment of it, moulin preferred one so extravagant that it could not be listened to. the property at the very most was not worth more than one or two hundred dollars, but moulin demanded thousands; and when this was refused, he threatened messrs. forbes and babcock, the agents of the company, with personal violence. these threats he repeated from time to time for two or three years, until at length becoming annoyed and alarmed by his fierce manner, they applied to the police court and had him bound over to keep the peace. notwithstanding he was thus put upon his good behavior, moulin kept continually making his appearance and reiterating his demands at the steamship company's office. forbes and babcock repeatedly told him to go to a lawyer and commence suit for his claim; but moulin refused to do so, saying that he could attend to his own business as well as, and he thought better than, any lawyer. at length, to get rid of further annoyance, they told him he had better go to new york and see mr. aspinwall, the owner of the vessel, about the matter; and, to enable him to do so, gave him a free ticket over the entire route from san francisco to that city. upon arriving in new york, moulin presented himself to mr. aspinwall and asked that his claim should be allowed. mr. aspinwall said that he knew nothing about his claim and that he did not want to be bothered with it. moulin still insisted, and mr. aspinwall told him to go away. moulin thereupon became excited, said he was determined to be paid, and that he would not be put off. he thereupon commenced a regular system of annoyance. when mr. aspinwall started to go home from his office, moulin walked by his side along the street. when aspinwall got into an omnibus, moulin got in also; when aspinwall got out, moulin got out too. on the following morning, when aspinwall left his residence to go to his office, moulin was on hand, and taking his place, marched along by his side as before. if aspinwall hailed an omnibus and got in, moulin got in at the same time. if aspinwall got out and hailed a private carriage, moulin got out and hailed another carriage, and ordered the driver to keep close to mr. aspinwall's carriage. in fact, wherever aspinwall went moulin went also, and it seemed as if nothing could tire him out or deter him from his purpose. at length mr. aspinwall, who had become nervous from the man's actions, exclaimed, "my god, this man is crazy; he will kill me;" and calling him into the office, asked him what he wanted in thus following and persecuting him. moulin answered that he wanted pay for his onions and potatoes. aspinwall replied, "but i don't know anything about your onions and potatoes; how should i? go back to my agents in california, and they will do what is right. i will direct them to do so." "but," said moulin, "i have no ticket to go to california;" and thereupon aspinwall gave him a free ticket back to san francisco. moulin departed, and in due course of time again presented himself to forbes and babcock, in san francisco. at the re-appearance of the man, they were more annoyed than ever; but finally managed to induce him to commence a suit in the united states district court. when the case was called, by an understanding between his lawyer and the lawyer of the steamship company, judgment was allowed to be entered in moulin's favor for four hundred and three dollars and a half, besides costs. the amount thus awarded greatly exceeded the actual value of the onions and potatoes appropriated. it was thought by the defendant that on the payment of so large a sum, the whole matter would be ended. but moulin was very far from being satisfied. he insisted that the judgment ought to have been for three thousand and nine hundred dollars, besides interest, swelling the amount to over six thousand dollars, and applied to judge hoffman of the district court to set it aside. but as the judgment had been rendered for the full value of the property taken, as admitted by his lawyer, the judge declined to interfere. this was in 1861. in 1863 i received my appointment as judge of the supreme court of the united states, and was assigned to the circuit embracing the district of california. moulin then appealed to the circuit court from the judgment in his favor, and at the first term i held, a motion was made to dismiss the appeal. i decided that the appeal was taken too late, and dismissed it. moulin immediately went to mr. gorham, the clerk of the court, for a copy of the papers, insisting that there was something wrong in the decision. gorham asked him what he meant, and he replied that i had no right to send him out of court, and that there was something wrong in the matter, but he could not tell exactly what it was. at this insinuation, gorham told him to leave the office, and in such a tone, that he thought proper to go at once and not stand upon the order of his going. the following year, after mr. delos lake had been appointed united states district attorney, moulin went to his office to complain of gorham and myself; but lake, after listening to his story, told him to go away. two or three years afterwards he again presented himself to lake and demanded that judge hoffman, gorham, and myself should be prosecuted. lake drove him a second time from his office; and thereupon he went before the united states grand jury and complained of all four of us. as the grand jury, after listening to his story for a while, dismissed him in disgust, be presented himself before their successors at a subsequent term and complained of them. from the federal court he proceeded to the state tribunals; and first of all he went to the county court of san francisco with a large bundle of papers and detailed his grievances against the united states judges, clerks, district attorney and grand jury. judge stanley, who was then county judge, after listening to moulin's story, told the bailiff to take possession of the papers, and when he had done so, directed him to put them into the stove, where they were soon burned to ashes. moulin then complained of stanley. at the same time, one of the city newspapers, the "evening bulletin," made some comments upon his ridiculous and absurd proceedings, and moulin at once sued the editors. he also brought suit against the district judge, district attorney and his assistant, myself, the clerk of the court, the counsel against him in the suit with the steamship company and its agents, and numerous other parties who had been connected with his various legal movements. and whenever the united states grand jury met, he besieged it with narratives of his imaginary grievances; and, when they declined to listen to him, he complained of them. the courts soon became flooded with his voluminous and accumulated complaints against judges, clerks, attorneys, jurors, editors, and, in fact, everybody who had any connection with him, however remote, who refused to listen to them and accede to his demands. by this course moulin attracted a good deal of attention, and an inquiry was suggested and made as to whether he was _compos mentis_. the parties who made the inquiry reported that he was not insane, but was actuated by a fiendish malignity, a love of notoriety and the expectation of extorting money by blackmail. for years--indeed until september, 1871--he continued to besiege and annoy the grand juries of the united states courts with his imaginary grievances, until he became an intolerable nuisance. his exemption from punishment had emboldened him to apply to the officers of the court--the judges, clerks, and jurors--the most offensive and insulting language. papers filled with his billingsgate were scattered all through the rooms of the court, on the desks of the judges, and on the seats of jurors and spectators. it seemed impossible, under existing law, to punish him, for his case did not seem to fall within the class of contempts for which it provided. but in september of 1871 his insolence carried him beyond the limits of impunity. in that month he came to the united states circuit court, where judge sawyer (then united states circuit judge) and myself were sitting, and asked that the grand jury which was about to be discharged might be detained; as he proposed to have us indicted for corruption, and commenced reading a long string of vituperative and incoherent charges of criminal conduct. the proceeding was so outrageous that we could not overlook it. we accordingly adjudged him guilty of contempt, fined him five hundred dollars, and ordered him to be committed to prison until the fine should be paid. whilst in prison, and not long after his commitment, he was informed that upon making a proper apology for his conduct, he would he discharged. instead, however, of submitting to this course, he commenced writing abusive articles to the newspapers, and sending petitions to the legislature charging us with arbitrary and criminal conduct. his articles were of such a character as to create quite erroneous impressions of our action. the newspapers, not waiting to ascertain the facts, at first took sides with him and assailed us. these attacks, of course, had no effect upon the man's case; but, after he had remained in prison for several weeks, on understanding that his health was infirm, and being satisfied that he had been sufficiently punished, we ordered his discharge. the hastings malignity. whilst the moulin matter was in progress, an individual by the name of william hastings was practising before the united states courts. he had been, as i am told, a sailor, and was then what is known as a "sailor's lawyer." he was a typical specimen of that species of the profession called, in police court parlance, "shysters." he was always commencing suits for sailors who had wrongs to redress, and particularly for steerage passengers who complained that they had not had sufficient accommodations and proper fare. he generally took their cases on speculation, and succeeded very often in forcing large sums from vessels libelled, as he was generally careful to bring his actions so as to arrest the vessels on the eve of their departure, when the payment of a few hundred dollars was a much cheaper mode of proceeding for the captains than detention even for a few days. but in one of his suits in the united states district court, in the year 1869, brought for a steerage passenger against a vessel from australia, the captain declined to be blackmailed and defended himself. when the matter came on for hearing, hastings was found to have no cause of action, and the case was thereupon dismissed by judge hoffman. hastings then appealed to the united states circuit court, and that court affirmed the judgment of the district court. this happened as i was about leaving for europe; and i left supposing that i had heard the last of the case. during my absence, hastings moved judge hoffman, of the united states district court, from whose decision the appeal had been taken, to vacate the decision of the united states circuit court. this, of course, judge hoffman refused. hastings thereupon made a motion that my decision should be set aside, on the ground that it was rendered by fraud and corruption. when judge hoffman became aware of the charges thus made, he was indignant and immediately cited hastings before him to show cause why he should not be disbarred and punished for contempt. hastings refused to make any explanation or withdraw his offensive language; and thereupon judge hoffman expelled him from the bar and ordered his name to be stricken from the roll of attorneys. i was then absent in europe, and knew nothing whatever of the proceedings. about this time mr. george w. julian, a member of congress from indiana, came to california and pretended to be a great friend of the settlers. he obtained the confidence of that large class of the community, and especially of those who were known as the suscol claimants. these were the men who, upon the rejection by the united states supreme court of the so-called suscol grant, in napa and solano counties, rushed in and squatted upon the most valuable land in the state. the title to this land had previously been considered as good as any in california; it had been held valid by the local tribunals, and also by the board of land commissioners and by the district court of the united states. on the strength of these confirmations the land had been divided into farms, upon which, besides cultivated fields, there were numerous orchards, vineyards, gardens, and two cities, each of which had been the capital of the state. the farms and city lots had been sold, in good faith, to purchasers at full value. but when the question came before the united states supreme court, and it appeared that the grant had been made to general vallejo, in consideration of military services, and for moneys advanced to the mexican government, and not for colonization purposes, it was held that there was no authority under the mexican laws for such a disposition of the public domain, and that the grant was, therefore, invalid. at the same time judge grier filed a dissenting opinion, in which he expressed a hope that congress would not allow those who had purchased in good faith from vallejo, and expended their money in improving the land, to be deprived of it. congress at once acted upon the suggestion thus made and passed an act allowing the grantees of vallejo to purchase the lands occupied by them at a specified sum per acre. mr. john b. frisbie, vallejo's son-in-law, who had bought and sold large quantities, took immediate steps to secure himself and his grantees by purchasing the lands and obtaining patents for them. in the meanwhile the squatters had located themselves all over the property; most of them placing small shanties on the land in the night-time, near the houses, gardens, and vineyards, and on cultivated fields of the vallejo grantees. they then filed claims in the land office as pre-emptioners, under the general land laws of the united states, and insisted that, as their settlements were previous to the act of congress, their rights to the land were secure. in this view julian, when he came to california, encouraged them, and, as was generally reported and believed, in consideration of a portion of the land to be given to him in case of success, undertook to defend their possessions.[1] when frisbie applied, under the provisions of the act of congress, for a patent to the land, a man named whitney, one of the squatters, protested against its issue, on the ground that under the pre-emption laws he, whitney, having settled upon the land, had acquired a vested right, of which congress could not deprive him. but the land department took a different view of the matter and issued the patent to frisbie. whitney thereupon commenced a suit against frisbie in the supreme court of the district of columbia to have him declared a trustee of the land thus patented, and to compel him, as such trustee, to execute a conveyance to the complainant. the supreme court of the district of columbia decided the case in favor of whitney, and ordered frisbie to execute a conveyance; but on appeal to the supreme court the decision was reversed; and it was held that a pre-emptioner did not acquire any vested right as against the united states by making his settlement, nor until he had complied with all the requirements of the law, including the payment of the purchase-money; and that until then congress could reserve the land from settlement, appropriate it to the uses of the government, or make any other disposition thereof which it pleased. the court, therefore, adjudged that the suscol act was valid, that the purchasers from vallejo had the first right of entry, and that frisbie was accordingly the owner of the land purchased by him. soon after the decision was rendered julian rose in his seat in the house of representatives and denounced it as a second dred scott decision, and applied to the members of the court remarks that were anything but complimentary. it so happened that previous to this decision a similar suit had been decided in favor of frisbie by the supreme court of california, in which a very able and elaborate opinion was rendered by the chief justice. i did not see the opinion until long after it was delivered, and had nothing whatever to do with it; but in some way or other, utterly inexplicable to me, it was rumored that i had been consulted by the chief justice with respect to that case, and that the decision had been made through my instrumentality. with this absurd rumor hastings, after he had been disbarred by judge hoffman, went on to washington. there he joined julian; and after concocting a long series of charges against judge hoffman and myself, he placed them in julian's hands, who took charge of them with alacrity. the two worthies were now to have their vengeance--hastings for his supposed personal grievances and julian for the suscol decision which injured his pocket. these charges on being signed by hastings were presented to congress by julian; and at his request they were referred to the judiciary committee. that committee investigated them, considered the whole affair a farce, and paid no further attention to it. but the next year mr. holman, of indiana, who succeeded julian, the latter having failed of a re-election, re-introduced hastings' memorial at julian's request and had it referred to the judiciary committee, with express instructions to report upon it. hastings appeared for the second time before that committee and presented a long array of denunciatory statements, in which judge hoffman, myself, and others were charged with all sorts of misdemeanors. the committee permitted him to go to any length he pleased, untrammelled by any rules of evidence; and he availed himself of the license to the fullest extent. there was hardly an angry word that had been spoken by a disappointed or malicious litigant against whom we had ever decided, that hastings did not rake up and reproduce; and there was hardly an epithet or a term of villification which he did not in some manner or other manage to lug into his wholesale charges. as a specimen of his incoherent and wild ravings, he charged that "the affairs of the federal courts for the district of california were managed principally in the interests of foreign capitalists and their co-conspirators, and that the judges thereof appeared to be under the control of said foreign capitalists, and that the said courts and the process thereof were being used or abused to deprive the government of the united states and the citizens thereof of the property that legally and equitably belonged to them respectively, and to transfer the same, in violation of law and through a perversion of public justice, to said foreign capitalists and their confederates and co-conspirators, and that nearly the whole of the sovereign powers of the state were under the control and management of said foreign capitalists and their confederates and co-conspirators;" and he alleged that he "was aware of the existence in the united states of a well-organized, oath-bound band of confederated public officials who are in league with the subjects of foreign powers, and who conspire against the peace, prosperity, and best interests of the united states, and who prey upon and plunder the government of the united states and the city and county governments thereof, and also upon private citizens, and who now are carrying into practice gigantic schemes of plunder through fraud, usurpation, and other villainy, in order to enrich themselves, bankrupt the nation, and destroy our government, and that their power is so great that they can and do obstruct the administration of public justice, corrupt its fountains, and paralyze to some extent the sovereign powers of the government of the united states and the people thereof." the judiciary committee after having patiently listened to this rigmarole, absurd and ludicrous as it was, unanimously reported that hastings' memorial should be laid upon the table and the committee discharged from any further consideration of the subject. the house adopted the report, and, so far as congress was concerned, there the matter dropped. but in the meanwhile it had been telegraphed all over the country that articles of impeachment were pending against the judges, and sensational newspaper articles appeared in different parts of the country. some expressed regret that the conduct of the judges had been of a character to necessitate such proceedings. others said it was not to be wondered at that the judicial ermine should be soiled in a country of such loose morals as california. still others thought it no more than proper to impeach a few of the judges, in order to teach the remainder of them a salutary lesson. these articles were paraded in large type and with the most sensational headings. when the action of the house on the memorial was announced, hastings and julian became furious. it then appeared that the only charge which had made any impression upon the minds of the committee was that relating to moulin, the frenchman. three, indeed, of the members, (messrs. voorhees, of indiana, potter, of new york, and peters, of maine,) said it was a shame and disgrace that such ridiculous and monstrous twaddle should be listened to for a moment; but a majority considered it their duty, under the order of reference, to hear the matter patiently. they had, therefore, allowed hastings the widest latitude and listened to everything that his malice could invent. as a comical conclusion to these extraordinary proceedings, hastings commenced a suit in the u.s. circuit court for the state of new york against the judiciary committee for dismissing his memorial. being a non-resident he was required by that court to give security for costs, and as that was not given the action was dismissed. this result was so distasteful to him that he presented a petition to the chief justice of the u.s. supreme court, stating that judge hunt had too much to do with churches, banks, and rings, and asking that some other judge might be appointed to hold the court. the petition was regarded as unique in its character, and caused a great deal of merriment. but the chief justice sent it back, with an answer that he had no jurisdiction of the matter. after this hastings took up his residence in new york, and at different times worried the judges there by suits against them--judge blatchford, among others--generally charging in his peculiar way a conspiracy between them and others to injure him and the rest of mankind. * * * * * the above was written upon my dictation in the summer of 1877. in november of that year hastings again appeared at washington and applied to a senator to move his admission to the supreme court. the senator inquired if he was acquainted with any of the judges, and was informed in reply of that gentleman's proceedings against myself; whereupon the senator declined to make the motion. hastings then presented to the house of representatives a petition to be relieved from his allegiance as a citizen of the united states. as illustrative of the demented character of the man's brain, some portions of the petition are given. after setting forth his admission to the supreme court of california as an attorney and counsellor-at-law, and his taking the oath then required, he proceeded to state that on the 6th of november, 1877, he entered the chamber of the supreme court of the united states to apply for admission as an attorney and counsellor of that court; that he was introduced by a friend to a senator, with a request that the senator would move his admission; that the senator asked him if he knew a certain justice of the supreme court, and upon being informed that he did, and that his relations with said justice were not friendly, as he had endeavored to get him impeached, and that the damaging evidence he produced against such justice had been secreted and covered up by the judiciary committee of the house, whom he had accordingly sued, the petition continued as follows: "whereupon said senator replied, i have a cause to argue as counsel before this court this morning, and i would, therefore, prefer not to move your admission. said senator then and there arose and took his seat in front of the bench of said court; and your petitioner remained in said u.s. supreme court until one application for admission was made and granted on motion of one s.p. nash, of tweed-sweeney ring settlement fame [thereby demonstrating poetic injustice], and until the chief justice of the united states--shadow not shade of selden--called the first case on the docket for that day, and a moment or two after the argument of said cause commenced, your petitioner arose and left the court-room of said united states supreme court, (to which the genius of a marshall and a story has bid a long farewell,) and as your petitioner journeyed towards his hotel, your petitioner soliloquized thus: 'senator w---is evidently afraid of justice ----, with whom i have had a difficulty, and he possesses neither the manly independence of a freeman, nor moral nor physical courage, and he is, therefore, an improper person (possibly infamous) for such a high and responsible position, and my rights as a citizen are not safe in the keeping of such a poltroon and conniving attorney, and he is probably disqualified to hold the high and responsible office of senator of the united states--that he improperly accepts fees from clients, possibly in part for the influence which his exalted position as senator gives him as counsel for parties having cases before the u.s. supreme court, and which practice is wholly inconsistent with the faithful, impartial performance of his sworn duty as such senator; and by thus accepting fees he has placed himself in a position where his personal interests conflict with the obligations of his oath of office; while the justices of the supreme court are, i conceive, derelict in the performance of their sworn duty, for permitting such practices to be inaugurated and continued.' "cowardice taints the character with moral turpitude; and i believe the facts related above show that said senator is a coward; at all events he lacks moral courage, and is afraid of the justices of the united states supreme court, whose judge the senator-attorney of the court becomes in case of trial of any of said justices by impeachment; surely this is one unclean body incestuously holding illicit commerce with another unclean body, and both become interchangeably soiled, and too impure to touch the spotless robes of the judicial ermine; still, as this government has ceased to be a government of law and justice, and has become a foul and unclean machine of corrupt compromises, carried on by colluding and conniving shyster bartering attorneys, the practice of said supreme court of the united states, above referred to, is strictly in accord therewith." the petition continued in a similar strain, and wound up by asking the passage of a concurrent resolution of the houses releasing him from his allegiance to the united states! [1] see exhibit l, in appendix. appendix. exhibit a. [from the new york _evening post_ of november 13th, 1849.] among the passengers leaving in the crescent city to-day is stephen j. field, esq., of this city, brother and late law-partner of d.d. field, esq., one of the commissioners of the code of practice. mr. field is on his way to san francisco, where he proposes to practise his profession, and take up his future residence. if he should realize either the hopes or the expectations of the numerous friends he leaves behind, he will achieve an early and desirable distinction in the promising land of his adoption. * * * * * exhibit b. mr. william h. parks, of marysville, has always asserted that my election as alcalde was owing to a wager for a dinner made by him with a friend. he was at the time engaged in transporting goods to the mines from the landing at nye's ranch on the yuba river, called yubaville, and arriving at the latter place whilst the election was going on he made the wager that i would be elected, and voted all his teamsters, numbering eleven, for me. as i had a majority of only nine, he claims that he had the honor of giving me my first office. the claim must be allowed, unless the person with whom he wagered offset this number, or at least some of the teamsters, by votes for my opponent. after the election mr. parks introduced himself to me, and from that time to this he has been a warm and steadfast friend. he afterwards settled in sutter county, but now resides in marysville. he has amassed a handsome fortune, and takes an interest in all public affairs. he has represented his county as a senator in the legislature of the state. he is a gentleman of high character and has the confidence and respect of the community. my opponent for the office of alcalde was mr. c.b. dodson, from illinois. i afterwards met him only once or twice in california, and knew little of his history. but when i was a member of the electoral commission, in february of this year (1877), a copy of a paper published in geneva, illinois--the _republican_, of the 10th of that month--was sent to me, containing the following account of him, from which it appears that he, too, has lived a life of strange vicissitudes and stirring adventure: reminiscences. an account of the various positions of the selected arbitrators says that in 1850 judge field was elected alcalde and recorder of marysville, california. judge field's competitor for the position was our townsman, capt. c.b. dodson, who was defeated by nine votes. as there is no doubt that had the captain gained the position of alcalde he would have risen as his competitor did, to various judicial positions, and finally to the arbitrator's seat, these nine votes must be considered as the only reasons why geneva does not number one of her citizens among the arbitrators for the highest of the world's official positions. among the votes polled for our friend dodson on that occasion was that of macaulay, one of the family of the famous historian of england's greatest days and proudest times. the captain has been a natural and inveterate pioneer, and few citizens of the state have figured more prominently or proudly in its early annals. in 1834, forty-three years ago, mr. dodson came to dispute with the aboriginal pottawatomies the possession of the fox river valley. white faces were rare in those days, and scarcely a squatter's cabin rose among the indian lodges. the captain built the first saw-mill on the river, and he and col. lyon were the hardy spirits about whom the early settlers clustered for encouragement and advice. in 1837 he was employed by the government to superintend the removal of the indians to council bluffs and kansas, and their successful emigration, as well as their uniform good will toward the whites prior to their removal, were largely due to his sagacity and influence among them. when capt. sutter first found the yellow gold gleaming in the dirt of his mill-race, and all the world joined in a mad rush to the mines, the venturesome spirit of capt. dodson led him to press forward with the first, and he was a "forty-niner," that pride of the old californians. in that surging crowd of wild adventurers from the ends of the earth, the captain was, as he has been among the early pioneers of illinois, a directing and controlling spirit. though he failed in his judicial aspirations for alcalde, and judge field succeeded, yet his continued exertions and marked influence caused him to leave a name richly associated with all the early history of marysville and vicinity. when the war broke out, mr. dodson was among the very first to proffer his services, and he raised the first company of cavalry which went to the front from kane county. the captain is not an old man yet in health and vigor, although an "old settler" in varied and numerous experiences. his name is marked in unmistakable characters on every prominent event of the early settlement of northern illinois, and blended and associated with all the pioneer way-marks of california. a friend and companion of all the great illinoians of the generation which is now passing into old age, he has not yet ceased to be a spirit actively mingling in all the affairs of the present times. but we only started to tell of his contest with field, not to write an eulogium on the captain, for here where he is known it is better pronounced in his record, which lies in the memories of his friends. * * * * * exhibit c. _oath of office as alcalde._ state of california, } sacramento district. } _ss._ sacramento city, _january 22d, 1850_. personally appeared before me stephen j. field, first alcalde of yubaville, in the district of sacramento, and made oath that he would discharge the duties of the office of first alcalde as aforesaid with faithfulness and fidelity to the best of his ability, and that he would support the constitution of the united states and the constitution of the state of california. r.a. wilson, _judge of 1st instance, sacramento district._ * * * * * exhibit d. the following are the orders of the district court mentioned in the narrative. _order imprisoning and fining mr. field for alleged contempt of court._ district court, } eighth judicial district, } county of yuba. } at a term of said district court held at marysville, county of yuba, on the 7th of june, 1850, present, hon. wm. b. turner, judge, the following proceeding was had: _ordered_. that stephen j. field be imprisoned forty-eight hours and fined five hundred dollars for contempt of court. * * * * * _order expelling messrs. field, goodwin, and mulford from the bar._ district court, } eighth judicial district, } county of yuba. } at a term of said court held at marysville, on the 10th of june, 1850, present, hon. william r. turner, judge, the following proceeding was had: whereas, messrs. field, goodwin, and mulford, having set at defiance the authority of this court, and having vilified the court and denounced its proceedings, the said field, goodwin, and mulford are hereby, by order of the court, expelled from the bar of the same. * * * * * _order imprisoning and fining judge haun for releasing mr. field from imprisonment upon a writ of habeas corpus, and directing that the order to imprison mr. field be enforced._ district court, } eighth judicial district, } county of yuba. } at a term of said district court held at marysville, county of yuba, on the 10th of june, 1850, present, hon. wm. b. turner, judge, the following proceeding was had: whereas, judge haun having, in defiance of the authority of this court, and in violation of the law, obstructed and prevented the execution of an order of this court to imprison mr. field for a contempt offered to the court while in session, by releasing the said field from the custody of the sheriff; the said haun is hereby sentenced to forty-eight hours' imprisonment and to pay a fine of fifty dollars. the sheriff will enforce the order of the court to imprison mr. field for forty-eight hours. * * * * * exhibit e. _record of proceedings in the court of sessions, mentioned in the narrative._ court of sessions of yuba county. met at marysville, june 10th, a.d. 1850, at 10 o'clock a.m., and was duly opened by r.b. buchanan, sheriff of the county. present, hon. h.p. haun, county judge, f.w. barnard, associate justice. in the matter of } stephen j. field } application for habeas corpus. on the reading of the petition of the applicant, duly authenticated by his oath, it is ordered that the prayer of the petitioner be granted, and that r.b. buchanan, sheriff of yuba county, or any person acting under him and having said field in custody, bring the said field into court forthwith, to be dealt with according to law. in pursuance of the above order, the said field came into court, and proceeded to address the court on the matter touching the cause of his confinement, and while making his remarks, and previous to the close thereof, and while the court was in session, r.b. buchanan, sheriff of yuba county, at the head of fifty men, entered the court, and stated that he came there for the purpose and with the intent to seize h.p. haun, county judge as aforesaid, and place him in close confinement, under and by virtue of a certain order or decree made by one william r. turner, judge of the eighth judicial district of the state of california. the court informed the said sheriff buchanan that it was holding its regular term, and that order must be preserved while it was in session. the said sheriff buchanan then left the court, whereupon the business before the court was again resumed. at the expiration of some five minutes, the said r.b. buchanan, as aforesaid, re-entered the court, and stated that the said h.p. haun, county judge as aforesaid, must leave the court and go with him, as he was peremptorily ordered by william r. turner, the judge as aforesaid, to arrest the said h.p. haun and keep him in close confinement for the space of forty-eight hours. r.b. buchanan was here notified that he was violating the laws of the land, and that he would be fined if he persisted in disturbing the session of the court. the reply of said buchanan was "that he could not be trifled with," and immediately seized the said h.p. haun, county judge as aforesaid, by the arm, and attempted to drag him from the room where the court was in session. whereupon a fine of two hundred dollars was then and there imposed upon the said r.b. buchanan for a contempt of court. the said r.b. buchanan then and there called upon the fifty persons ordered out by him as his posse to take hold of the said h.p. haun, and take him from the court. but the persons in attendance, conceiving the order to arrest the hon. h.p. haun to be illegal and unjustifiable, refused to assist the sheriff in the execution of his illegal order. the sheriff then retired, and the court was then adjourned to 3 o'clock p.m. court met pursuant to adjournment. court adjourned to to-morrow morning at 9 o'clock. i hereby certify the above to be a true transcript of the record of the proceedings of the court of sessions on the 10th day of june, a.d. 1850. witness e.d. wheeler, clerk of the court of sessions of yuba county, california, with the seal of the court affixed, this 26th day of december, a.d. 1850. [l.s.] e.d. wheeler, _clerk_. * * * * * the records of the district court show the following entry made the same day, june 10, 1850: "a communication was received from h.p. haun, stating 'that if he was guilty of obstructing the order of the court in releasing field, he did it ignorantly, not intending any contempt by so doing.' whereupon the court ordered that h.p. haun be released from confinement, and his fine be remitted." the following is taken from the deposition of mr. wheeler, the clerk of the court, before the committee of the assembly to whom was referred the petition of citizens of yuba county for the impeachment of judge turner: march 26th, 1851. e.d. wheeler,[1] being duly sworn, says: i reside in marysville, yuba county; i am the county clerk of that county; i know wm. r. turner, judge of the eighth judicial district; i am clerk of his court in and for yuba county. question. were you in court on the 7th day of june last, when stephen j. field was fined by judge turner and ordered to be imprisoned? if so, please to state what took place at that time in court. ans. i was in court on the 7th day of june last. a motion was made in a suit (cameron against sutter) in which stephen j. field was counsel for the defendant, upon which motion a discussion arose among the members of the bar employed in the case. during the remarks of mr. field, judge turner said that it was useless to say more, as the mind of the court was made up. i think mr. field then offered to read from the statutes, whereupon judge turner ordered him to take his seat, and that a fine of two hundred dollars be entered up against him, and that he be imprisoned eight hours or thereabout. mr. field replied, "very well." then judge turner said, fine him three hundred dollars and imprison him--i do not remember the precise time--but think it was twenty-four hours. mr. field made some quiet reply--i think it was "very well;" whereupon the fine was increased to four hundred dollars and the imprisonment made something longer. i think mr. field said something about his rights at the bar, and i think he appealed to the members of the bar. then judge turner became quite furious, and in loud and boisterous language ordered the fine to be five hundred dollars and the imprisonment to be forty-eight hours, and ordered the sheriff to take him out of court. he was boisterous, and several times ordered the sheriff to take him out; to summon a posse; to summon the court, and he would turn him out. q. did you see anything disrespectful in the manner, or hear anything disrespectful in the language of mr. field which occasioned the fine and imprisonment? ans. i did not. q. did mr. field, in consequence of the order of judge turner, leave the court-room in company with the deputy sheriff? ans. he left in company with the deputy sheriff, and i suppose it was in consequence of the order of judge turner. q. was the trial of cameron against sutter proceeded with after mr. field left? ans. it was. q. who took the place of mr. field after he left? ans. john v. berry, esq. q. were you in court on the 10th day of june? ans. i was. q. were any members of the bar expelled by judge turner on that day? and if so, please state who they were and whether they were in court at the time, and whether or not the order was made upon a hearing of the parties. ans. there were three persons expelled, to wit: s.j. field, s.b. mulford, and j.o. goodwin. i do not recollect whether the parties were all in court at the time. i am sure that mr. goodwin was in court. there was no hearing had to my knowledge. q. after the order imprisoning mr. field, on the 7th of june and before the 10th, were any steps taken by mr. field to be discharged on a writ of habeas corpus? ans. there were, and mr. field was discharged by the judge of the county of yuba. q. what was done by judge turner with judge haun, the county judge, in consequence of his discharging mr. field from imprisonment on the writ of habeas corpus? ans. judge haun was fined fifty dollars by judge turner and ordered to be imprisoned forty-eight hours. this was on the 10th of june, at the same time that the other gentlemen were expelled from the bar. q. did the court of sessions of yuba county hold a session on that day? ans. yes. q. did you continue in the district court or did you go to the court of sessions? ans. i continued in the district court. q. who made up the records of the court of sessions on that day? ans. f.w. barnard, one of the associate justices of the court. q. look at this paper and state whether it is a copy of the proceedings of that court on the 10th of june, certified by you as the clerk. ans. it is.[2] q. whilst you were in the district court on that day did the sheriff of yuba county give any information to the district court about the court of sessions being in session? ans. he did. q. did judge turner give any directions to the sheriff to arrest judge haun, notwithstanding he was holding his court? ans. he did, and told the sheriff to put him in irons, if necessary to handcuff him. q. were any directions given about a posse? ans. there were. he told the sheriff to summon a posse forthwith and enforce the orders of the court. he addressed two or three professional gamblers present and asked them if they would not join the posse to arrest judge haun. then the excitement became so great that several of the members of the bar requested him to adjourn the court; but before the court adjourned the judge asked several of the members of the bar to join the posse; but they made excuses, whereupon the court adjourned. q. was the order entered on the records of the district court, expelling messrs. field, goodwin, and mulford? ans. it was. q. what day was that order entered? ans. on the 10th day of june. q. has that order ever been vacated on the records of the district court? ans. so far as it relates to mr. goodwin it has been vacated, but no further. q. has mr. field or mr. mulford ever been restored to the bar by the district court since the order of expulsion on the 10th of june? ans. no. [1] mr. wheeler is at present (1877) district judge of the nineteenth district of the state. [2] the record of the proceedings is printed above. * * * * * exhibit f. the following is the petition to the governor mentioned in the narrative. of course the governor possessed no power to suspend a judicial officer from office. but at the time the petition was signed and sent to him the state had not been admitted into the union, and congress had not approved of the action of the people in calling a convention and framing a constitution; and it appeared very doubtful whether such approval would be given. there was a general impression that in the meantime the governor could exercise the power to remove and suspend officers of the state which the former governors under mexico possessed, or were supposed to possess. the petition, however, is none the less significant, as the expression of the opinions of the people of marysville upon the conduct of judge turner. _to his excellency peter h. burnett, governor of california._ the undersigned citizens of marysville, yuba county, in this state, respectfully request that your excellency would suspend william r. turner, district judge of the eighth judicial district of this state, from his judicial office. 1st. because the said william r. turner is grossly incompetent to discharge the duties of a judge, he having exhibited during his judicial career, and particularly during the session of the district court held at marysville, in yuba county, during the present month, ignorance of the most elementary principles of law,--such as to excite the derision of counsel, jurors, witnesses, and persons in attendance upon the court. 2d. because the said william r. turner has, during the session of the district court held at marysville, exercised the power vested in him as judge, in an arbitrary and tyrannical manner, outraging the rights of counsel, clients, and witnesses. 3d. because the said william r. turner has refused to hear counsel on questions of vital importance to the suits of their clients, and in one instance fined and imprisoned counsel for stating in the most respectful manner and in the most respectful language, that he appealed from an order made by him, though such is an acknowledged right of all counsel, and a right given by statute--under pretence that counsel by so doing was guilty of a contempt. 4th. because the said wm. r. turner has trampled upon and spurned with contempt the privilege of the writ of habeas corpus which is guaranteed to all citizens by the constitution of the united states and by the constitution of the state of california, and fined and imprisoned the hon. henry p. haun, judge of yuba county, for the exercise by him of a judicial act in discharging a gentleman from arrest under a writ of habeas corpus. 5th. because the said william r. turner, to carry out his arbitrary order to fine and imprison the hon. henry p. haun, judge of yuba county, for the exercise of a judicial act, ordered the sheriff of said county with a posse to invade the court of sessions of yuba county while the said court was sitting, and over which the said haun presided, and to carry off by force the said county judge and put him in close custody. 6th. because the said william r. turner ordered the sheriff of yuba county, with a posse, to force mr. s.j. field from the court of sessions of said county whilst said field was before said court on a writ of habeas corpus arguing for his discharge, and the said william r. turner was informed that the court of sessions forbid the sheriff from disturbing the proceedings of the court on the hearing of said writ. 7th. because the said william r. turner has, in the exercise of arbitrary power, expelled counsel from the bar for giving their testimony as witnesses on the return of a writ of habeas corpus before the hon. henry p. haun, judge of the county court, under pretence that by so doing they were vilifying the court and denouncing its proceedings. 8th. because the said william r. turner, during the session of the district court at marysville, yuba county, in the present month, frequently went into court with revolving pistols upon his person, to the great scandal of the court and of the county. for the above, and other reasons, your petitioners respectfully request that the said william r. turner may be suspended from his office, as the further exercise by him of judicial power will destroy all confidence of the community in the administration of justice, and all respect for the tribunals of the country; and your petitioners will ever pray. marysville, june 19th, 1850. stephen j. field, ira a. eaton, james s. green, t.b. parker, e.w. judkins, harrington osgood, chas. w. gleason, geo. w. hastat, s. sartwell, jr., m.s. ebright, s.c. stambaugh, p. steinman, henry cuttcher, m. cunningham, ed. b. jefferds, wm. h. mitchell, benj. barker, h. cecil & co., osbourn & co., asa stearns, john bennett, jr., j.p.f. haskell, w.a. crampton, j.c. jewett, h. stenhome, john parks, absalom parks, david parks, james imbrie, alfred parry, h.c. ward, richard mcrae, wm. johnson, f. prunean, h.w. taylor, r.a. eddy, s.t. brewster, c. sala, dericerpre, m. donaldson kinney, r.m. foltz., jas. f. hibbard, thomas gaffney, allen gries, w.h. swain, oben lacey, e.s. peck, b. smith, john graham, wm. kyle, s.c. tompkins, a.c. ladd, c.b. kinnard, cyrus crouch, h.h. welch, jas. stuart, jas. debell, uriah davis, l.h. babb & co., i.b. purdy, g. dimon, henry j. williams, d.w.c. rice, n. purdy, william k. coit, james b. cushing, thomas west, s.b. mulford, j. ford, wm. ford, charles a. van dorn, gustavus b. wright, j. burlingame, g. beaulamy, a. mace, f. frossard, c.w. durkee, john s. ryder, geo. h. childs, ezra f. nye, s.t. nye, geo. w. durkee, john c. marks, john l. carpenter, leonard crofford, robert lacy, french paige, l.a. allen, james hughes, j.c. sargent, wm. p. hoyt, f.l. reed, j.s. bell, henry b. compton, g.f. kussel, reuben scott, warren drury, joel f. whitney, o.c. gardner, b.f. taber, johnson thompson, jr., ganahl & co., t.w. hall, j. donnel, wm. irwin, wm. w. nelson, r.h. mccall, b.g. bixby, geo. l. boswell, wm. w. tinker, robert s. baker, n.f. cooke, edwards woodruff, j.n. briceland, joseph f. emeric, john f. delong, james q. packard, sibley & co., boone, larrow & co., p.w. hayes & co., geo. c. gorham, r. dunlap, m. cameron, r. brown, a.w. loynes, f. owradon, j.w. turner, p.d. bailey, james l. springer, matthew s. smith, wm. fulton, john george smith, isaiah porter, wm. r. taylor, john mcclellan, r.h. macy, charles b. mitchell, thomas r. anthony, geo. w. webster, daniel m. shepherd, m.j. eavyerberth, lewis a. gosey, john rueyer, tehan van de wett, wm. cassede, g.p. russell, s.g. haywood, g.w. hopkins, wm. e. wightman, e. ferris, samuel r. st. john, a.o. garrett, d.c. benham. * * * * * exhibit g. _letter of mr. eaton, by whom the message mentioned in the narrative was sent to judge turner._ wednesday afternoon, _aug. 7, '50_. dear judge: i have given your message to turner. he does not like it much and flared up considerably when i told him. but it was no use. i have made him understand that you do not want any personal difficulty with him, but that you are ready for him, and if he attacks you he will get badly hurt. i will see you soon and explain. give him ----. you can always count on me. yours truly, ira a. eaton. the narrative of reminiscences was sent to a friend in san francisco, soon after it was printed, and was shown to gen. a.m. winn of that city. he was in marysville in 1850 and also gave judge turner to understand the line of conduct i intended to pursue. the following letter has since been received from him. san francisco, _may 10th '80_. friend field: in looking over the early reminiscences of california i was pleased with the faithful recital of your trouble with judge turner at marysville in 1850. being there about that time i recollect to have met with judge turner and found him in a fighting rage, making threats of what he would do on meeting you. although i have not an exalted opinion of men's courage, when they talk so much about it, i thought he might put his threats into execution and warned you of approaching danger. the course you pursued was generally approved, and public opinion culminated in your favor. you made many warm friends, though turner and his friends were the more enraged in consequence of that fact. with great respect, i am, as ever, your friend, a.m. winn. hon. stephen j. field, _washington, d.c._ * * * * * exhibit h, no. i.[1] after the narrative of reminiscences was written, the proceedings of the assembly of california of 1851, on the petition of citizens of yuba and nevada counties for the impeachment of judge turner, were published. annexed to them was a statement by the editor of the causes of the indefinite postponement of the matter. they are there stated to be: 1st, that it was supposed that i had acquiesced in such a disposition of the case, because by the act concerning the courts of justice and judicial officers, turner had been sent to the northern portion of the state, where he could do no harm; 2d, that the legislature did not wish to extend the session for the period which the trial of an impeachment would require; and, 3d, that the whole matter had become extremely distasteful to me. a copy of this statement with the record of the proceedings was sent to the surviving members of the seven, mentioned in the narrative, who voted for the indefinite postponement of the matter; and they wrote the replies which are given below as part of this exhibit. they are preceded by a letter from a member, written soon after the vote was taken. * * * * * _letter of mr. bennett._ house of assembly, san jose, _april 23d, 1851_. hon. stephen j. field. dr. sir: i take pleasure in adopting this form to explain to you my vote upon the question put to the house in the final disposition of the case for the impeachment of judge turner. had the house been called for a direct vote upon the question of impeachment, i should certainly have voted for the impeachment; but finding that some of the members thought the wishes of the citizens of yuba county had been accomplished by the removal of judge turner from your district, and on that account would vote against the impeachment, i thought there was less injustice in postponing the whole matter indefinitely, than in coming to a direct vote. i will also say that it was understood by many members that you would be satisfied with such a disposition. i am very truly your friend, f.c. bennett. to the hon. stephen j. field, _san jose_. * * * * * _letter of mr. merritt._ salt lake city, utah, _may 4th, 1879_. my dear judge: your letter of the 27th of april reached me day before yesterday, and the copy of the proceedings in the matter of the impeachment of w.r. turner, on yesterday. the editorial comments on the case, so far as i am concerned, are exactly correct. i remember distinctly having voted for the indefinite postponement of the charges against turner on the distinct understanding that you consented to it, or at least acquiesced, for the reasons: 1st, that turner, by the passage of the bill concerning courts of justice, etc., had been sent to a district where he could do no harm and was out of the way; 2d, that you did not desire to extend the session of the legislature; and, 3d, that the whole matter was extremely distasteful and disagreeable to you. i remember further very distinctly, even after this great lapse of time, that i was very much astonished when you told me that i had voted under a misapprehension as to your views and wishes. it is very certain that turner would have been impeached had not a false report, as to your views and wishes on the subject, been industriously circulated among the members of the assembly a short time before the vote was taken. that report alone saved turner from impeachment. very truly your friend, saml. a. merritt. hon. s.j. field, _sup. ct. u.s._ * * * * * _letter of mr. mccorkle._ washington, city, d.c., _may 8th, 1879_. hon. s.j. field. my dear sir: i have received your note and the printed record of the "proceedings of the assembly of the state of california of 1851, on the petition of the citizens of yuba and nevada counties for the impeachment of wm. r. turner, judge of the eighth judicial district of california." the simple reading of the record recalls vividly to my mind all of the circumstances of the case and enables me to answer your inquiry in regard to the indefinite postponement of the motion to impeach judge turner. a bill introduced by yourself, increasing and changing the numbers of the judicial districts of the state, had passed the legislature, and became a law some weeks before the motion to impeach judge turner was called up. by this law judge turner was banished to the klamath--a region inhabited almost exclusively by savage red-skins, the elk, and grizzly bear, and as turner was supposed by anthropologists to be a resultant of that mysterious law of generation denominated atavism or reversionary heredity, and bore the impression, in not only the bodily form, but the instincts, passions, manners, and habits of the "cave-dwellers" of the rough-stone age, there appeared to be a fitness and adaptation in the new locality and its surroundings to the man, which was at once appreciated and approved by all persons familiar with him, and his conduct and behavior, both on and off the bench. under these circumstances the report obtained general credence, that you and your constituents were satisfied with the removal of judge turner from the bench of the eighth judicial district; and i have no doubt influenced all or nearly all who voted to indefinitely postpone his impeachment. as for myself, having a personal knowledge of the truth of the charges made against judge turner by the citizens of yuba and nevada counties, i am free to say that no consideration other than that you and your constituents were satisfied with judge turner's removal from the eighth judicial district, could have induced me to cast my vote for the indefinite postponement of judge turner's impeachment. do you realize the fact, my dear judge, that more than a quarter of a century has elapsed since these events transpired? though my respect for you as a man, and my admiration for you as a jurist, have increased since we were actors in these scenes; yet i am frank enough to say to you, that if i had to play my part again, with my increased experience, i would not vote to indefinitely postpone the impeachment of a judge whom i knew to be guilty of the charges made against judge turner by yourself and others, _even though the report were true_ that you and your constituents were satisfied with his simple removal from your judicial district. respectfully and truly yours, &c., jos. w. mccorkle. * * * * * _letter of mr. bradford._ springfield, ill, _may 8th, 1879_. judge field. my dear friend: yours of the 27th april should have been answered ere this, but before doing so i desired to get all the reminders that i could. i looked carefully over the journal. all that i had recollected in the whole matter was that i had an intense feeling in favor of sustaining your position, and when you informed me that i had voted to dismiss the proceedings i was profoundly astonished. i thought you must be mistaken until i saw the journal.... some very satisfactory assurance must have been given me that such vote would be satisfactory to you, and i only wonder that i did not have the assurance verified.... i assume that the editor is correct in the explanation as given. very truly, j.s. braford. * * * * * _letter of mr. carr._ san francisco, _may 15th, 1879_. my dear judge: i have received your letter and a printed copy of the record of the proceedings of the assembly of california of 1851, in the matter of the impeachment of william r. turner, judge of the then eighth judicial district of the state. in reply, i have to say, that the statement of the editor as to the vote on the motion to indefinitely postpone the proceedings is correct, so far as i am concerned. it was distinctly understood by me, and to my knowledge by other members of the assembly, that you had consented to such postponement, it being explained that the postponement was not to be taken as an approval of the judge's conduct. on no other ground could the motion have been carried. if the vote had been taken on the charges made, articles of impeachment against the judge would undoubtedly have been ordered. your consent to the postponement was understood to have been given, because of the change in the judicial districts by an act introduced into the assembly by yourself, under which judge turner was sent to a district in the northern part of the state, where there was at the time scarcely any legal business, and which was removed to a great distance from the district in which you resided, and because of the general desire manifested by others to bring the session of the legislature to a speedy close. the impeachment of the judge would have necessitated a great prolongation of the session. no member of the assembly justified or excused the atrocious and tyrannical conduct of the judge towards yourself and others. i am, very truly, yours, jesse d. carr. hon. stephen j. field. [1] by mistake, there are two exhibits h; they are, therefore, marked no. i. and no. ii. * * * * * exhibit h, no. ii. _letter of judge gordon n. mott giving the particulars of the difficulty with judge barbour._ san francisco, _apr. 28th, 1876_. hon. stephen j. field. dear sir: your letter of the eleventh instant, in which you requested me to give you, in writing, an account of the affair between yourself and judge w.t. barbour, at marysville in 1853, was duly received. the facts in relation to that unpleasant affair are as fresh in my memory as if they had happened yesterday; and i give them to you the more willingly for the reason that you incurred the spite and malice of judge barbour, by acts of personal and professional kindness to me, which gave him no just or reasonable cause of offence; and though the following statement of facts will place the character of judge barbour, now deceased, in a very bad and even ludicrous light, the events in mind are nevertheless a part of the history of our early days in california, and i see no impropriety in complying with your request. the facts are as follows: you and i were walking together along d street in the city of marysville, when we met judge barbour, who, after using some offensive and insolent remarks, gave you a verbal challenge to meet him in the way resorted to by gentlemen for the settlement of their personal difficulties. you accepted the challenge instantly, and referred him to me, as your friend, who would act for you in settling the preliminaries of a hostile meeting. in half an hour i was called upon by hon. chas. s. fairfax as the friend of judge barbour. he said judge barbour had told him that judge field had challenged him to mortal combat, and requested him to meet me for the purpose of arranging the terms of the meeting between them. i told mr. fairfax at once that such was not my understanding of the matter; that i was present when the challenge was given by judge barbour and accepted by judge field. after further consultation with you we agreed that it was better for you to accept the false position in which judge barbour seemed determined to place you, and "to fight it out on that line," than longer submit to the insolence and persecution of a bitter and unscrupulous adversary. mr. fairfax then claimed, in behalf of judge barbour, that, as he was the party challenged, he had the right to the choice of weapons, and the time, place, and manner of the combat; to which i assented. he then stated that judge barbour proposed that the meeting should take place that evening in a room twenty feet square; that each party was to be armed with a colt's navy revolver and a _bowie-knife_; that they should be stationed at opposite sides of the room, and should fire at the word, and advance at pleasure, and finish the conflict with the knives. i told mr. fairfax that the terms proposed by his principal were unusual and inconsistent with the "code," and that i could not consent to them or countenance a conflict so unprecedented and barbarous. mr. fairfax agreed with me that judge barbour had no right to insist upon the terms proposed, and said that he would consult with him and get him to modify his proposition. upon doing so he soon returned, and stated that judge barbour insisted upon the terms he had proposed as his ultimatum, and requested me to go with him and call on judge barbour, which i did. i had now come to the conclusion that barbour was playing the role of the bravo and bully, and that he did not intend to fight, and resolved on the course that i would pursue with him. mr. fairfax and myself then called on judge barbour, and i repeated what i had said to mr. fairfax, adding that it would be shameful for two gentlemen, occupying such positions as they in society, to fall upon each other with knives like butchers or savages, and requesting him to dispense with the knives, which he still refused to do. i then looked him straight in the eye and said, well, sir, if you insist upon those terms, we shall accept. i saw his countenance change instantly. "his coward lips did from their color fly;" and he finally stammered out that he would "waive the knife." without consulting you, i had determined that if barbour still insisted upon a conflict with bowie-knives i would take your place, believing that he would not have any advantage over me in any fight he could make; and knowing, moreover, that you had involved yourself in the difficulty on my account, i thought it only just for me to do so. but it was demonstrated in the sequel that barbour was playing the game of bluff, and that he did not intend to fight from the start. it was finally settled, however, that the combat should take place as first proposed, except that pistols only were to be used. mr. fairfax and myself then commenced looking about for a room; but in the meantime the affair had been noised about town and we found it impossible to get one. mr. fairfax then, after consulting judge barbour, proposed that the meeting should take place the next morning in sutter county; to which i assented; and all the terms and preliminaries were arranged and agreed upon. at that time there were two daily lines of stages leaving marysville for sacramento, and you and your friends were to go down the sacramento road to a point below bear river in advance of the stages, and i was to select a suitable place for the meeting. judge barbour and his friends were to follow us in one of the coaches and i was to hail the driver as he approached the place of meeting. you and your adversary were to be stationed one hundred yards apart, each armed with as many colt's revolvers as he chose to carry; to fire upon each other at the word, and to advance at pleasure and finish the conflict. our party was promptly on the ground according to agreement; and when the first coach came in sight i hailed the driver and found that judge barbour and his friends were not aboard, and the coach passed on a little below us and turned out of the road and stopped. soon after the other coach came in sight, and i again hailed the driver, who stopped the coach, and judge barbour instantly jumped out, and in a very excited manner said that he was going forward to the other coach, and called on the passengers "to take notice, that if that d----d rascal" (pointing to you) "attacked him he would kill him." i stepped in front of judge barbour and said: hold! judge field will not attack you, sir; remarking at the same time to mr. fairfax that this was strange conduct on the part of his friend, and not in accordance with our understanding and agreement; that each party was to bear his portion of the responsibility of the meeting which was to take place between them. mr. fairfax appeared both astonished and mortified at the pusillanimous conduct of his principal, who seemed determined to rush forward to the other coach; and i requested him to wait until i could go back and consult you in the matter, for i was afraid that you might possibly be provoked to make the attack. when i returned to you and explained what had been said at the coach, you asked if it would be proper for you to make the attack. i told you most decidedly not; to let the coward go, and he would never annoy or trouble you again. mr. fairfax, who possessed a nice sense of honor, and was a gallant and accomplished gentleman, was so disgusted and mortified at the conduct of his principal that he left him and came over and joined our party, and after taking breakfast with us at nicolaus, returned with us to marysville, while judge barbour went on his way to sacramento. thus, what threatened in its inception to be a sanguinary tragedy, ended in a ridiculous farce. the determined and resolute stand which you assumed in this affair with judge barbour, saved you from any farther insolence or persecution from men of his class. this letter has been drawn out to a most tedious length, and yet there are many circumstances connected with our early life and times in marysville that i would add but for fear of trying your patience. please write to me on receipt of this, and tell me how my memory of the facts contained in this letter agrees with yours. very respectfully and truly your friend, gordon n. mott. * * * * * exhibit i. _letter of l. martin, esq., the friend of judge barbour in his street attack._ marysville, _tuesday, march 21, '54_. dear judge: i was glad to hear a few days ago from our friend filkins that the trouble between you and judge barbour had been settled, and that the hatchet was buried. i wish now to explain my connection with the assault made upon you about a year ago by barbour.[1] you have always appeared to think me in some way implicated in that affair, because i was seen by you at that time not far off from him. the facts are these: judge barbour told me the night before that he expected to have a street fight with you, and wanted me to accompany him. i had heard of his conduct in the affair of the intended duel in sutter county, and knew there was bad blood between you, but i was astonished at his saying there was going to be a difficulty between you in the street. i consented to accompany him, but i supposed of course that you had received notice of his purpose, and that there would be no unfair advantage taken by him. i was, therefore, surprised when i saw you in front of your office with your arms partly filled with small pieces of board, apparently to kindle a fire. barbour's drawing a pistol upon you under these circumstances, and calling upon you to draw and defend yourself, was not what we call at the south very chivalric. it was not justified by me then, and never has been in any way or manner, and i told him he had acted badly. i was glad to hear you defy him as you did, and dare him to shoot. i reckon he is not very proud of his conduct. i have never approved of his action, and should never have accompanied him had i believed or suspected he had not given you notice of his purpose. with great respect i am very truly yours, l. martin. hon. judge field. [1] it was february 21, 1863. * * * * * exhibit j. _sections four, five, and seven of the act entitled "an act to expedite the settlement of titles to lands in the state of california," approved july 1st, 1864._ sec. 4. _and be it further enacted_, that whenever the district judge of any one of the district courts of the united states for california is interested in any land, the claim to which, under the said act of march third, eighteen hundred and fifty-one, is pending before him on appeal from the board of commissioners created by said act, the said district court shall order the case to be transferred to the circuit court of the united states for california, which court shall thereupon take jurisdiction and determine the same. the said district courts may also order a transfer to the said circuit court of any other cases arising under said act, pending before them, affecting the title to lands within the corporate limits of any city or town, and in such cases both the district and circuit judges may sit. sec. 5. _and be it further enacted_, that all the right and title of the united states to the lands within the corporate limits of the city of san francisco, as defined in the act incorporating said city, passed by the legislature of the state of california, on the fifteenth of april, one thousand eight hundred and fifty-one, are hereby relinquished and granted to the said city and its successors, for the uses and purposes specified in the ordinance of said city, ratified by an act of the legislature of the said state, approved on the eleventh of march, eighteen hundred and fifty-eight, entitled "an act concerning the city of san francisco, and to ratify and confirm certain ordinances of the common council of said city," there being excepted from this relinquishment and grant all sites or other parcels of lands which have been, or now are, occupied by the united states for military, naval, or other public uses, [or such other sites or parcels as may hereafter be designated by the president of the united states, within one year after the rendition to the general land-office, by the surveyor-general, of an approved plat of the exterior limits of san francisco, as recognized in this section, in connection with the lines of the public surveys: _and provided_, that the relinquishment and grant by this act shall in no manner interfere with or prejudice any bona fide claims of others, whether asserted adversely under rights derived from spain, mexico, or the laws of the united states, nor preclude a judicial examination and adjustment thereof.] sec. 7. _and be it further enacted_, that it shall be the duty of the surveyor-general of california, in making surveys of the private land claims finally confirmed, to follow the decree of confirmation as closely as practicable whenever such decree designates the specific boundaries of the claim. but when such decree designates only the out-boundaries within which the quantity confirmed is to be taken, the location of such quantity shall be made, as near as practicable, in one tract and in a compact form. and if the character of the land, or intervening grants, be such as to render the location impracticable in one tract, then each separate location shall be made, as near as practicable, in a compact form. and it shall be the duty of the commissioner of the general land-office to require a substantial compliance with the directions of this section before approving any survey and plat forwarded to him.--[13 stats. at large, pp. 333-4.] that part of the fifth section, which is included within brackets, was inserted at the suggestion of the commissioner of the general land-office. * * * * * _the act entitled "an act to quiet the title to certain lands within the corporate limits of the city of san francisco," approved march 8th, 1866._ _be it enacted by the senate and house of representatives of the united states of america in congress assembled_, that all the right and title of the united states to the land situated within the corporate limits of the city of san francisco, in the state of california, confirmed to the city of san francisco by the decree of the circuit court of the united states for the northern district of california, entered on the eighteenth day of may, one thousand eight hundred and sixty-five, be, and the same are hereby, relinquished and granted to the said city of san francisco and its successors, and the claim of the said city to said land is hereby confirmed, subject, however, to the reservations and exceptions designated in said decree, and upon the following trusts, namely, that all the said land, not heretofore granted to said city, shall be disposed of and conveyed by said city to parties in the bona fide actual possession thereof, by themselves or tenants, on the passage of this act, in such quantities and upon such terms and conditions as the legislature of the state of california may prescribe, except such parcels thereof as may be reserved and set apart by ordinance of said city for public uses: _provided, however_, that the relinquishment and grant by this act shall not interfere with or prejudice any valid adverse right or claim, if such exist, to said land or any part thereof, whether derived from spain, mexico, or the united states, or preclude a judicial examination and adjustment thereof.--[14 stat. at large, p. 4.] * * * * * exhibit k. _letter of judge lake giving an account of the torpedo._ san francisco, _april 29, '80_. honorable stephen j. field. my dear sir: in the winter of 1866 i was in washington attending the united states supreme court, and was frequently a visitor at your room. one morning in january of that year i accompanied you to your room, expecting to find letters from san francisco, as i had directed that my letters should be forwarded to your care. i found your mail lying on the table. among other matter addressed to you was a small package, about four inches square, wrapped in white paper, and bearing the stamp of the pioneer photographic gallery of san francisco. two printed slips were pasted upon the face of the package and formed the address: your name, evidently cut from the title-page of the "california law reports;" and "washington, d.c.," taken from a newspaper. you supposed it to be a photograph, and said as much to me, though from the first you professed surprise at the receipt of it. you were standing at the window, when you began to open it, and had some difficulty in making the cover yield. when you had removed the cover you raised the lid slightly, but in a moment said to me, "what is this, lake? it can hardly be a photograph." a sudden suspicion flashed upon me, and stepping to your side, i exclaimed, "don't open it; it means mischief!" when i had looked at it more nearly, i said, "it's an infernal machine" or "a torpedo." i carried it over to the capitol, opposite to your rooms, where mr. broom, one of the clerks of the supreme court, joined me in the examination of your mysterious looking present. it was put in water, and afterwards we dashed off the lid of the box by throwing it against the wall in the carriage way under the senate steps. about a dozen copper cartridges were disclosed--those used in a smith & wesson pocket pistol, it appeared afterward--six of them lying on each side of a bunch of friction matches in the centre. the sides of the cartridges had been filed through, so that the burning of the matches might explode the cartridges. the whole was kept in place in a bed of common glue, and a strip of sand-paper lying upon the heads of the matches was bent into a loop to receive the bit of thread, whose other end, secured to the clasp of the box, produced that tension and consequent pressure requisite to ignite the matches upon the forcible opening of the lid. to make assurance doubly sure, a paste of fulminating powder and alcohol had been spread around the matches and cartridges. there was a newspaper slip also glued to the inside of the lid, with words as follows: "monday, oct. 31, 1864. the city of san francisco vs. united states. judge field yesterday delivered the following opinion in the above case. it will be read with great interest by the people of this city." then followed several lines of the opinion. even that gave no clue to the source of the infernal machine, but from the fact that it was evidently made by a scientific man, and that from its size it must have been passed through the window at the post office, instead of into the letter-box, it was thought [that there was] a sufficiently conspicuous mode of action to expose the sender of the torpedo to detection. whoever it may have been took a late vengeance for the decision of the pueblo case--if such was the veritable motive of the frustrated assassination--as the decision referred to was rendered in 1864. on that account it was conjectured that the contriver of the machine might be some guilty person, who had received sentence from you, and who used the reference to the pueblo case to divert suspicion from himself. so far as i know, all efforts to discover the author of the intended mischief have been fruitless. the box with its contents, was sent to the secretary of war, who directed an examination by the ordnance department. general dyer, then chief of ordnance, pronounced it a most cleverly combined torpedo, and exploded one of the cartridges in a closed box, producing a deep indentation upon its sides. general dyer added, among other analytical details, that the ball weighed 52 grains. all the circumstances connected with the reception of the infernal machine were too singular and, at that time, ominous, not to remain vividly impressed upon my memory. very truly, your friend, delos lake. * * * * * exhibit l. _the following is an extract from the report to the commissioner of the general land-office by the register and receiver of the land-office in california, to whom the matter of the contests for lands on the soscol ranch was submitted for investigation, showing the condition and occupation of the lands previous to the rejection of the grant by the supreme court of the united states, and the character of the alleged pre-emption settlements which julian undertook to defend._ a general report of the facts established by said evidence is briefly as follows:[1] when the united states government took possession of california, don mariana guadaloupe vallejo was in the occupancy of the rancho of soscol, claiming to own it by virtue of the grant from the mexican nation, which has recently (december term, 1861) been declared invalid by the supreme court of the united states. his occupancy was the usual one of the country and in accordance with the primitive habits of the people. he possessed the land by herding stock upon it. general vallejo, as military commandante of his district, consisting of all alta california lying north of the bay of san francisco, was necessarily the leading personage of the country. his influence among the rude inhabitants of the territory was almost monarchical, and his establishment was in accordance with his influence. his residence at sonoma was the capital of his commandancy, and the people of the country for hundreds of miles around looked to general vallejo for advice and assistance in business and for protection and defence in time of trouble. these things are part of the history of california. he had other ranches besides that of soscol, as that at sonoma, which was devoted to agriculture and residences. the soscol he especially devoted to the herding and grazing of stock, for which purpose it was most admirably adapted. wild oats grew in great luxuriance all over this tract, from the water's edge to the tops of the highest hills, and being surrounded on three sides by the waters of the bays and rivers, required little attention in the way of herdsmen. on this rancho general vallejo kept as many as fifteen thousand head of horses and horned cattle running at will, attended only by the necessary vaqueros employed to watch and attend them. there was no other use to which the land could at that time be devoted. the want of reliable labor and lack of a market both forbade agricultural operations beyond personal or family necessities. it was not practicable then, nor for years after, to put the land to any use other than stock pasturing. we have, therefore, to report that the possession that general vallejo had of "soscol" in 1846 was the usual use and possession of the time and the country, and that it was the best and most perfect use and occupation of which the land was capable. the rancho was, therefore, reduced to possession by general vallejo before the americans took possession of the country. soon after the american occupation or conquest, general vallejo began to sell off portions of the "soscol," and continued this practice until about the year 1855, at which time he sold the last of it, and does not appear to have had or claimed any interest since. this sale and consequent dividing the land into small parcels produced its usual effect in the way of improvements. from 1855 to 1860 the "rancho of soscol" was almost entirely reduced to absolute and actual possession and control by his vendees, being by them fenced up into fields, surrounded by substantial enclosures, and improved with expensive farm-houses, out-buildings, orchards, and the like, and was cultivated to grain wherever suitable for that purpose. it had upon it two cities of considerable importance, viz: benicia and vallejo, each of which had been at one time the capital of the state of california. no rural district of california was more highly improved than this, and but a very small portion equal to it. the title to "soscol," before its rejection by the united states supreme court, was considered the very best in all california. all the really valuable agricultural land in california was held under mexican grants, and, as a consequence, all had to pass the ordeal of the land commission. from 1853 to about 1860 very few had been finally passed upon by the courts, so that during that time the question for the farmer to decide was not what title is perfect, but what title is most likely to prove so by the final judgment of the supreme court. amongst the very best, in the opinion of the public, stood "soscol." one conclusive, unanswerable proof of that fact is this, that there was not a single settler on the grant at the time it was rejected. not one person on it, except in subordination to the vallejo title. every resident on the whole tract held his land by purchase from vallejo, or his assigns, and held just precisely the land so purchased, and not one acre more or less. this fact was not even disputed during the whole eight months of investigation through which we have just passed. it is a notorious fact that of the grants in california which have stood the test of the supreme court, very many have been entirely in the possession of squatters, and all with more or less of such possessions, and the final patent has alone succeeded in recovering the long-lost possession to the grantholder. there were no settlers on the "soscol." the people had the most perfect confidence in the title. it had been twice confirmed by tribunals of high authority and great learning--first by the united states land commission, and then by the district court of the united states. it only wanted the final confirmation by the supreme court, and none doubted that it would follow of course. business could not, and would not, await the nine years consumed in adjudicating this title. farmers were obliged to have lands, and they bought them. capital must and would seek investment, and it was lent on mortgage. when all titles required the same confirmatory decree, the citizen could not discriminate, but exercised his best judgment. the sales of lands upon the "soscol" were made at prices which called for perfect title; they brought the full improved value of the land. money was lent on mortgage in the same way. the deeds and mortgages, which accompany the respective cases, are the very best evidence of the opinion the public entertained of the character of the soscol grant title. the people were amazed when it was announced that the soscol grant had been rejected. no fact developed by this examination has appeared so surprising to the mind of the register and receiver as that there were no pre-emption settlers on the "soscol." this is so unusual in california that we expected to find the contrary. there was no possession on the tract adverse to the grant title. thus stood matters until early in the year 1862, when the intelligence reached california that the grant had been rejected by the supreme court. the struggle soon began. there was at that time employed upon the united states navy-yard at mare island, and also upon the pacific mail company's works at benicia, a large number of mechanics and laborers. there was also in the towns of benicia and vallejo a large floating population. tempted by the great value of these lands in their highly improved state, many of these persons squatted upon the rancho. the landholders in possession resisted. the houses of the great majority of the settlers were erected in the night time, as it was necessary to enter the enclosed fields by stealth. these houses were built of rough redwood boards set up edgewise, with shed roof, and without window, fire place, or floor. they were about eight feet square, sometimes eight by ten feet, and never over six feet high. we have no hesitation in saying that they were utterly unfit for the habitation of human beings, and further that they were never designed for permanent residences. the mode of erecting these shanties was as follows: the planks were sawed the right length in the town of vallejo or benicia, in the afternoon of the day, and at nightfall were loaded upon a cart. about eleven o'clock at night the team would start for the intended settlement, reaching there about one or two o'clock in the morning. between that hour and daylight the house would be erected and finished. sometimes the house would be put together with nails, but when too near the residence of the landholder in possession, screws would be used to prevent the sound of the hammer attracting attention. very few of this class of settlers remained upon their claims above a few days, but soon returned to their ordinary occupations in the towns. generally after they would leave the landholders would remove the shanties from the ground. in some cases they would pull them down with force immediately upon discovering them, and in the presence of the settlers. a few of them got settlements near enough to their places of employment to enable them to work in town, or at the navy-yard, and to sleep in their shanties; some regularly, others only occasionally. these generally remained longer than the others, but none of this class remained up to the time of trial. none of the settlers, who went on since the grant was rejected, have attempted regular improvements or cultivation. a few have harvested the grain planted by the landholders, as it grew on their 1/4 [quarter-section]; they would harvest it, and offer this as evidence of good faith and cultivation. we have no hesitation in pronouncing, from the evidence, that these are not settlers within the spirit of the pre-emption laws, but are mere speculators, desirous of getting the improvements of another to sell and to make money. [1] the evidence taken before those officers. * * * * * the preceding personal reminiscences of early days in california by judge field, with other sketches, were dictated by him to a stenographer in the summer of 1877, at san francisco. they were afterwards printed for a few friends, but not published. the edition was small and soon exhausted, and each year since the judge has been asked for copies. the reprint is therefore made. the history of the attempt at his assassination by a former associate on the supreme bench of california is added. it is written by hon. george c. gorham, a warm personal friend of the judge for many years, who is thoroughly informed of the events described. * * * * * the story of the attempted assassination of justice field by a former associate on the supreme bench of california. by hon. george c. gorham. note by the publishers. mr. gorham is a life-long friend of justice field. he was his clerk when the latter held the alcalde's court in marysville, in 1850; and was clerk of the u. . circuit court of the district of california when it was organized, after judge field's appointment to the u.s. supreme bench. subsequently, and for several years, he was secretary of the u.s. senate. since his retirement from office he has resided in washington. for a part of the time he edited a republican paper in that city, but of late years he has been chiefly engaged in literary works, of which the principal one is the life and history of the late secretary of war, edwin m. stanton. * * * * * index. attempted assassination of justice field by a former associate on the state supreme bench chapter i the sharon-hill-terry litigation. chapter ii proceedings in the superior court of the state. chapter iii proceedings in the united states circuit court. [transriber's note: there is no chapter iv] chapter v decision of the case in the federal court. chapter vi the marriage of terry and miss hill. chapter vii the bill of revivor. chapter viii the terrys imprisoned for contempt. chapter ix terry's petition to the circuit court for a release--its refusal--he appeals to the supreme court--unanimous decision against him there. chapter x president cleveland refuses to pardon terry--false statements of terry refuted. chapter xi terry's continued threats to kill justice field--return of the latter to california in 1889. chapter xii further proceedings in the state court.--judge sullivan's decision reversed. chapter xiii attempted assassination of justice field, resulting in terry's own death at the hands of a deputy united states marshal. chapter xiv sarah althea terry charges justice field and deputy marshal neagle with murder. chapter xv justice field's arrest and petition for release on habeas corpus. chapter xvi judge terry's funeral--refusal of the supreme court of california to adjourn on the occasion. chapter xvii habeas corpus proceedings in justice field's case. chapter xviii habeas corpus proceedings in neagle's case. chapter xix expressions of public opinion. chapter xx the appeal to the supreme court of the united states, and the second trial of sarah althea's divorce case. chapter xxi concluding observations. * * * * * attempted assassination of justice field by a former associate on the state supreme bench. the most thrilling episode in the eventful life of justice field was his attempted assassination at lathrop, california, on the 14th day of august, 1889, by david s. terry, who had been chief justice of the state during a portion of justice field's service on that bench. terry lost his own life in his desperate attempt, by the alertness and courage of david s. neagle, a deputy united states marshal, who had been deputed by his principal, under an order from the attorney-general of the united states, to protect justice field from the assassin, who had, for nearly a year, boldly and without concealment, proclaimed his murderous purpose. the motive of terry was not in any manner connected with their association on the state supreme bench, for there had never been any but pleasant relations between them. terry resigned from the bench in 1859 to challenge senator broderick of california to the duel in which the latter was killed. he entered the confederate service during the war, and some time after its close he returned to california, and entered upon the practice of the law. in 1880 he was a candidate for presidential elector on the democratic ticket. his associates on that ticket were all elected, while he was defeated by the refusal of a number of the old friends of broderick to give him their votes. it is probable that his life was much embittered by the intense hatred he had engendered among the friends of broderick, and the severe censure of a large body of the people of the state, not especially attached to the political fortunes of the dead senator. these facts are mentioned as furnishing a possible explanation of judge terry's marked descent in character and standing from the chief-justiceship of the state to being the counsel, partner, and finally the husband of the discarded companion of a millionaire in a raid upon the latter's property in the courts. it was during the latter stages of this litigation that judge terry became enraged against justice field, because the latter, in the discharge of his judicial duties, had been compelled to order the revival of a decree of the united states circuit court, in the rendering of which he had taken no part. a proper understanding of this exciting chapter in the life of justice field renders necessary a narrative of the litigation referred to. it is doubtful if the annals of the courts or the pages of romance can parallel this conspiracy to compel a man of wealth to divide his estate with adventurers. whether it is measured by the value of the prize reached for, by the character of the conspirators, or by the desperate means to which they resorted to accomplish their object, it stands in the forefront of the list of such operations. chapter i. the sharon-hill-terry litigation. the victim, upon a share of whose enormous estate, commonly estimated at $15,000,000, these conspirators had set their covetous eyes, was william sharon, then a senator from the state of nevada. the woman with whom he had terminated his relations, because he believed her to be dangerous to his business interests, was sarah althea hill. desirous of turning to the best advantage her previous connection with him, she sought advice from an old negress of bad repute, and the result was a determination to claim that she had a secret contract of marriage with him. this negress, who during the trial gave unwilling testimony to having furnished the sinews of war in the litigation to the extent of at least five thousand dollars, then consulted g.w. tyler, a lawyer noted for his violent manner and reckless practices, who explained to her what kind of a paper would constitute a legal marriage contract under the laws of california. no existing contract was submitted to him, but he gave his written opinion as to what kind of a contract it would be good to have for the purpose. the pretended contract was then manufactured by sarah althea in accordance with this opinion, and tyler subsequently made a written agreement with her by which he was to act as her attorney, employ all necessary assistance, and pay all expenses, and was to have one-half of all they could get out of sharon by their joint efforts as counsel and client. this contract was negotiated by an australian named neilson, who was to have one-half of the lawyer's share. on the 7th of september, 1883, a demand was made upon mr. sharon for money for miss hill. he drove her emissary, neilson, out of the hotel where he had called upon him, and the latter appeared the next day in the police court of san francisco and made an affidavit charging mr. sharon with the crime of adultery. a warrant was issued for the latter's arrest, and he was held to bail in the sum of $5,000. this charge was made for the avowed purpose of establishing the manufactured contract of marriage already referred to, which bore date three years before. a copy of this alleged contract was furnished to the newspapers together with a letter having sharon's name appended to it, addressed at the top to "my dear wife," and at the bottom to "miss hill." this pretended contract and letter mr. sharon denounced as forgeries. on the 3d of october, 1883, mr. sharon commenced suit in the united states circuit court at san francisco against sarah althea hill, setting forth in his complaint that he was a citizen of the state of nevada, and she a citizen of california; "that he was, and had been for years, an unmarried man; that formerly he was the husband of maria ann sharon, who died in may, 1875, and that he had never been the husband of any other person; that there were two children living, the issue of that marriage, and also grandchildren, the children of a deceased daughter of the marriage; that he was possessed of a large fortune in real and personal property; was extensively engaged in business enterprises and ventures, and had a wide business and social connection; that, as he was informed, the defendant was an unmarried woman of about thirty years of age, for some time a resident of san francisco; that within two months then past she had repeatedly and publicly claimed and represented that she was his lawful wife; that she falsely and fraudulently pretended that she was duly married to him on the twenty-fifth day of august, 1880, at the city and county of san francisco; that on that day they had jointly made a declaration of marriage showing the names, ages, and residences of the parties, jointly doing the acts required by the civil code of california to constitute a marriage between them, and that thereby they became and were husband and wife according to the law of that state. "the complainant further alleged that these several claims, representations, and pretensions were wholly and maliciously false, and were made by her for the purpose of injuring him in his property, business, and social relations; for the purpose of obtaining credit by the use of his name with merchants and others, and thereby compelling him to maintain her; and for the purpose of harassing him, and in case of his death, his heirs and next of kin and legatees, into payment of large sums of money to quiet her false and fraudulent claims and pretensions. he also set forth what he was informed was a copy of the declaration of marriage, and alleged that if she had any such instrument, it was 'false, forged, and counterfeited;' that he never, on the day of its date, or at any other time, made or executed any such document or declaration, and never knew or heard of the same until within a month previous to that time, and that the same was null and void as against him, and ought, in equity and good conscience, to be so declared, and ordered to be delivered up, to be annulled and cancelled." the complaint concluded with a prayer that it be adjudged and decreed that the said sarah althea hill was not and never had been his wife; that he did not make the said joint declaration of marriage with her, or any marriage between them; that said contract or joint declaration of marriage be decreed and adjudged false, fraudulent, forged, and counterfeited, and ordered to be delivered up and cancelled and annulled, and that she be enjoined from setting up any claims or pretensions of marriage thereby. sharon was a citizen of nevada, while miss hill was a citizen of california.[1] before the time expired in which miss hill was required to answer the complaint of mr. sharon in the united states circuit court, but not until after the federal jurisdiction had attached in that court, she brought suit against him, november 1st, in a state superior court, in the city and county of san francisco, to establish their alleged marriage and then obtain a decree, and a division of the property stated to have been acquired since such marriage. in her complaint she alleged that on the 25th day of august, 1880, they became, by mutual agreement, husband and wife, and thereafter commenced living together as husband and wife; that on that day they had jointly made a declaration of marriage in writing, signed by each, substantially in form as required by the civil code of california, and until the month of november, 1881, had lived together as husband and wife; that since then the defendant had been guilty of sundry violations of the marriage contract. the complaint also alleged that when the parties intermarried the defendant did not have in money or property more than five millions of dollars, with an income not exceeding thirty thousand dollars a month, but that since their intermarriage they had by their prudent management of mines, fortunate speculations, manipulations of the stock market, and other business enterprises, accumulated in money and property more than ten millions of dollars, and that now he had in his possession money and property of the value at least of fifteen millions of dollars, from which he received an income of over one hundred thousand dollars a month. the complaint concluded with a prayer that the alleged marriage with the defendant might be declared legal and valid, and that she might be divorced from him, and that an account be taken of the common property, and that the same be equally divided between them. the campaign was thus fully inaugurated, which for more than six years disgraced the state with its violence and uncleanness, and finally ended in bloodshed. the leading combatants were equally resolute and determined. mr. sharon, who was a man of remarkable will and energy, would have expended his entire fortune in litigation before he would have paid tribute to those who thus attempted to plunder him. sarah althea hill was respectably connected, but had drifted away from her relations, and pursued, without restraint, her disreputable course. she affected a reckless and daredevil character, carrying a pistol, and exhibiting it on occasions in cow-boy fashion, to convey the impression that those who antagonized her had a dangerous character with whom to deal. she was ignorant, illiterate, and superstitious. the forged document which she thought to make a passport to the enjoyment of a share of sharon's millions was a clumsy piece of work. it was dated august 25, 1880, and contained a clause pledging secrecy for two years thereafter. but she never made it public until september, 1883, although she had, nearly two years before that, been turned out of her hotel by sharon's orders. at this treatment she only whimpered and wrote begging letters to him, not once claiming, even in these private letters to him, to be his wife. she could then have published the alleged contract without any violation of its terms, and claimed any rights it conferred, and it is obvious to any sane man that she would have done so had any such document then been in existence. although sharon's case against sarah althea hill was commenced in the federal court before the commencement of miss hill's case against sharon in the state court, the latter case was first brought to trial, on the 10th of march, 1884. [1] note.--a court of equity having jurisdiction to lay its hands upon and control forged and fraudulent instruments, it matters not with what pretensions and claims their validity may be asserted by their possessor; whether they establish a marriage relation with another, or render him an heir to an estate, or confer a title to designated pieces of property, or create a pecuniary obligation. it is enough that, unless set aside or their use restrained, they may impose burdens upon the complaining party, or create claims upon his property by which its possession and enjoyment may be destroyed or impaired. (sharon vs. terry, 13 sawyer's rep., 406.) the civil code of california also declares that "a written instrument in respect to which there is a reasonable apprehension that, if left outstanding, it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or cancelled" (sec. 3412). chapter ii. proceedings in the superior court of the state. mr. sharon defended in the state court, and prosecuted in the federal court with equal energy. in the former he made an affidavit that the pretended marriage contract was a forgery and applied to the court for the right to inspect it, and to have photographic copies of it made. sarah althea resisted the judge's order to produce the document in question, until he informed her that, if she did not obey, the paper would not be admitted as evidence on the trial of the action. on the second day of the trial in the state court miss hill reinforced her cause by the employment of judge david s. terry as associate counsel. he brought to the case a large experience in the use of deadly weapons, and gave the proceedings something of the character of the ancient "wager of battle." numerous auxiliaries and supernumeraries in the shape of lesser lawyers, fighters, and suborned witnesses were employed in the proceedings, as from time to time occasion required. the woman testified in her own behalf that upon a visit to mr. sharon's office he had offered to pay her $1,000 per month if she would become his mistress; that she declined his offer in a business-like manner, without anger, and entered upon a conversation about getting married; she swore at a subsequent interview she drafted a marriage contract at sharon's dictation. this document, to which she testified as having been thus drawn up, is as follows: "in the city and county of san francisco, state of california, on the 25th day of august, a.d., 1880, i, sarah althea hill, of the city and county of san francisco, state of california, aged twenty-seven years, do here, in the presence of almighty god, take senator william sharon, of the state of nevada, to be my lawful and wedded husband, and do here acknowledge and declare myself to be the wife of senator william sharon, of the state of nevada. sarah althea hill. august 25, 1880, san francisco, cal." * * * * * "i agree not to make known the contents of this paper or its existence for two years unless mr. sharon, himself, sees fit to make it known. sarah althea hill." * * * * * "in the city and county of san francisco, state of california, on the 25th day of august, a.d. 1880, i, senator william sharon, of the state of nevada, aged sixty years, do here, in the presence of almighty god, take sarah althea hill, of the city and county of san francisco, california, to be my lawful and wedded wife, and do here acknowledge myself to be the husband of sarah althea hill. william sharon, nevada. august 25, 1880." in his testimony mr. sharon contradicted every material statement made by sarah althea hill. he denied every circumstance connected with the alleged drawing up of the marriage contract. he testified that on the 7th day of november, 1881, he terminated his relations with and dismissed her, and made a full settlement with her by the payment of $3,000 in cash, and notes amounting to $4,500. for these she gave him a receipt in full. he charged her with subsequently stealing that receipt at one of two or three visits made by her after her discharge. it is unnecessary to review the voluminous testimony introduced by the parties in support of their respective contentions. the alleged contract was clearly proven to be a forgery. a number of witnesses testified to conversations had with miss hill long after the date of the pretended marriage contract, in which she made statements entirely inconsistent with the existence of such a document. she employed fortune-tellers to give her charms with which she could compel mr. sharon to marry her, and this, too, when she pretended to have in her possession the evidence that she was already his wife. not an appearance of probability attended the claim of this bold adventuress. every statement she made concerning the marriage contract, and every step she took in her endeavor to enforce it, betrayed its false origin. the trial of the case in the state court continued from march 10th until may 28th, when the summer recess intervened. it was resumed july 15th, and occupied the court until september 17th, on which day the argument of counsel was concluded and the case submitted. no decision was rendered until more than three months afterwards, namely, december 24th. nearly two months were then allowed to pass before the decree was entered, february 19, 1885. the case was tried before judge sullivan without a jury, by consent of the parties. he decided for the plaintiff, holding the marriage contract to be genuine, and to constitute a valid marriage. it was manifest that he made his decision solely upon the evidence given by sarah althea herself, whom he nevertheless branded in his opinion as a perjurer, suborner of perjury, and forger. lest this should seem an exaggeration his own words are here quoted. she stated that she was introduced by sharon to certain parties as his wife. of her statements to this effect the judge said: "plaintiff's testimony as to these occasions is directly contradicted, and in my judgment her testimony as to these matters is wilfully false." concerning $7,500 paid her by sharon, which she alleged she had placed in his hands in the early part of her acquaintance with him, the judge said: "this claim, in my judgment, is utterly unfounded. no such advance was ever made." at another place in his opinion the judge said: "plaintiff claims that defendant wrote her notes at different times after her expulsion from the grand hotel. if such notes were written, it seems strange that they have not been preserved and produced in evidence. i do not believe she received any such notes." with respect to another document which purported to have been signed by mr. sharon, and which sarah althea produced under compulsion, then withdrew it, and failed to produce it afterwards, when called for, saying she had lost it, judge sullivan said: "among the objections suggested to this paper as appearing on its face, was one made by counsel that the signature was evidently a forgery. the matters recited in the paper are, in my judgment, at variance with the facts it purports to recite. considering the stubborn manner in which the production of this paper was at first resisted and the mysterious manner of its disappearance, i am inclined to regard it in the light of one of the fabrications for the purpose of bolstering up plaintiff's case. i can view the paper in no other light than as a fabrication." in another part of his opinion judge sullivan made a sort of a general charge of perjury against her in the following language: "i am of the opinion that to some extent plaintiff has availed herself of the aid of false testimony for the purpose of giving her case a better appearance in the eyes of the court, but sometimes parties have been known to resort to false testimony, where in their judgment it would assist them in prosecuting a lawful claim. as i understand the facts of this case, that was done in this instance." in another place judge sullivan said: "i have discussed fully, in plain language, the numerous false devices resorted to by the plaintiff for the purpose of strengthening her case." miss sarah and her attorneys had now come in sight of the promised land of sharon's ample estate. regular proceedings, however, under the law, seemed to them too slow; and besides there was the peril of an adverse decision of the supreme court on appeal. they then decided upon a novel course. section 137 of the civil code of california provides that while an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself and to prosecute or defeat the action. the enterprising attorneys, sharing the bold spirit of their client, and presuming upon the compliance of a judge who had already done so well by them, went into the court, on the 8th of january, 1885, and modestly demanded for sarah althea, upon the sole authority of the provision of law above quoted, $10,000 per month, as the money necessary to enable her to support herself, and $150,000 for attorneys' fees to prosecute the action. this was to include back pay for thirty-eight months, making a sum of $380,000, which added to the $150,000, attorneys' fees, would have made a grand total of $530,000. this was an attempt, under the color of a beneficent law, applicable only to actions for divorce, in which the marriage was not denied, to extort from a man more than one-half million dollars, for the benefit of a woman, seeking first to establish a marriage, and then to secure a divorce, in a case in which no decree had as yet been entered, declaring her to be a wife. it was not merely seeking the money necessary to support the plaintiff and prosecute the case; it was a request that the inferior court should confiscate more than half a million dollars, in anticipation of a decision of the supreme court on appeal. it was as bold an attempt at spoliation as the commencement of the suit itself. the supreme court of the state had decided that the order of a superior court allowing alimony during the pendency of any action for divorce is not appealable, but it had not decided that, under the pretence of granting alimony, an inferior judge could apportion a rich man's estate among champerty lawyers, and their adventurous client, by an order from which there could be no appeal, made prior to any decree that there had ever been a marriage between the parties, when the fact of the marriage was the main issue in the case. the counsel for sharon insisted upon his right to have a decree entered from which he could appeal, before being thus made to stand and deliver, and the court entertained the motion. upon this motion, among other affidavits read in opposition, was one by mr. sharon himself, in which he recited the agreement between miss hill and her principal attorney, george w. tyler, in which she was to pay him for his services, one-half of all she might receive in any judgment obtained against sharon, he, tyler, advancing all the costs of the litigation. the original of this agreement had been filed by tyler with the county clerk immediately after the announcement of the opinion in the case as an evidence of his right to half of the proceeds of the judgment. it was conclusive evidence that sarah althea required no money for the payment of counsel fees. after the filing of a mass of affidavits, and an exhaustive argument of the motion, judge sullivan rendered his decision, february 16, 1885, granting to sarah althea hill an allowance of $2,500 per month, to take effect as of the date of the motion, january 8, 1885, and further sums of $2,500 each to be paid on the 8th day of april, and of each succeeding month until further order of the court. this the judge thought reasonable allowance "in view of the plaintiff's present circumstances and difficulties." for counsel fees he allowed the sum of $60,000, and at the request of the victors, made in advance, he divided the spoils among them as follows: to tyler and tyler $25,000 to david s. terry 10,000 to moon and flournoy 10,000 to w.h. levy 10,000 to clement, osmond and clement 5,000 by what rule $2,500 was awarded as a proper monthly allowance to the woman whose services to mr. sharon had commanded but $500 per month it is difficult to conjecture. it was benevolence itself to give $60,000 to a troop of lawyers enlisted under the command of tyler, who had agreed to conduct the proceedings wholly at his own cost, for one-half of what could be made by the buccaneering enterprise. it seemed to be the purpose of these attorneys to see how much of mr. sharon's money they could, with judge sullivan's assistance, lay their hands upon before the entry of the judgment in the case. from the judgment an appeal could be taken. by anticipating its entry they thought that they had obtained an order from which no appeal would lie. it was not until three days after this remarkable order was made that the decree was entered by judge sullivan declaring plaintiff and defendant to be husband and wife; that he had deserted her, and that she was entitled to a decree of divorce, with one-half of the common property accumulated by the parties since the date of what he decided to be a valid marriage contract. sharon appealed from the final judgment, and also from the order for alimony. notwithstanding this appeal, and the giving of a bond on appeal in the sum of $300,000 to secure the payment of all alimony and counsel fees, judge sullivan granted an order directing mr. sharon to show cause why he should not be punished for contempt in failing to pay alimony and counsel fees, as directed by the order. the supreme court, upon application, granted an order temporarily staying proceedings in the case. this stay of proceedings was subsequently made permanent, during the pendency of the appeal. mr. sharon died november 15, 1885. that very day had been set for a hearing of sharon's motion for a new trial. the argument was actually commenced on that day and continued until the next, at which time the motion was ordered off the calendar because meantime mr. sharon had deceased. chapter iii. proceedings in the united states circuit court. while these proceedings were being had in the state courts the case of sharon vs. hill in the federal court was making slow progress. miss hill's attorneys seemed to think that her salvation depended upon reaching a decision in her case before the determination of sharon's suit in the united states circuit court. they were yet to learn, as they afterwards did, that after a united states court takes jurisdiction in a case, it cannot be ousted of that jurisdiction by the decision of a state court, in a proceeding subsequently commenced in the latter. seldom has "the law's delay" been exemplified more thoroughly than it was by the obstacles which her attorneys were able to interpose at every step of the proceedings in the federal court. sharon commenced his suit in the united states circuit court october 3, 1883, twenty-eight days before his enemy commenced hers in the state superior court. by dilatory pleas her counsel succeeded in delaying her answer to sharon's suit until after the decision in her favor in the state court. she did not enter an appearance in the federal court until the very last day allowed by the rule. a month later she filed a demurrer. her counsel contrived to delay the argument of this demurrer for seven weeks after it was filed. it was finally argued and submitted on the 21st of january, 1884. on the 3d of march it was overruled and the defendant was ordered to answer in ten days, to wit, march 13th. then the time for answering was extended to april 24th. when that day arrived her counsel, instead of filing an answer, filed a plea in abatement, denying the non-residence of mr. sharon in the state of california, on which depended his right to sue in the federal court. to this mr. sharon's counsel filed a replication on the 5th of may. it then devolved upon miss hill's counsel to produce evidence of the fact alleged in the plea, but, after a delay of five months and ten days, no evidence whatever was offered, and the court ordered the plea to be argued on the following day. it was overruled, and thirty days were given to file an answer to sharon's suit. the case in the state court had then been tried, argued, and submitted thirty days before, but miss hill's counsel were not yet ready to file their answer within the thirty days given them, and the court extended the time for answer until december 30th. six days before that day arrived judge sullivan rendered his decision. at last, on the 30th of december, 1884, fourteen months after the filing of sharon's complaint, sarah althea's answer was filed in the federal court, in which, among other things, she set up the proceedings and decree of the state court, adjudging the alleged marriage contract to be genuine and legal, and the parties to be husband and wife, and three days later sharon filed his replication. there was at no time any delay or want of diligence on the part of the plaintiff in prosecuting this suit to final judgment. on the contrary, as is plainly shown in the record above stated, the delays were all on the part of the defendant. the taking of the testimony in the united states circuit court commenced on the 12th of february, 1885, and closed on the 12th of august following. the struggle in the state court was going on during all the time of the taking of the testimony in the federal court, and intensified the excitement attendant thereon. miss hill was in constant attendance before the examiner who took the testimony, often interrupting the proceedings with her turbulent and violent conduct and language, and threatening the lives of mr. sharon's counsel. she constantly carried a pistol, and on occasions exhibited it during the examination of witnesses, and, pointing it at first one and then another, expressed her intention of killing them at some stage of the proceedings. she was constantly in contempt of the court, and a terror to those around her. her conduct on one occasion, in august, 1885, became so violent that the taking of the testimony could not proceed, and justice field, the presiding judge of the circuit, made an order that she should be disarmed, and that a bailiff of the court should sit constantly at her side to restrain her from any murderous outbreak, such as she was constantly threatening. her principal attorney, tyler, was also most violent and disorderly. judge terry, while less explosive, was always ready to excuse and defend his client. (see report of proceedings in sharon vs. hill, 11 sawyer's circuit court reps., 122.) upon the request of counsel for the complainant, the examiner in one case reported to the court the language and the conduct of miss hill. among other things, he reported her as saying: "when i see this testimony [from which certain scandalous remarks of hers were omitted] i feel like taking that man stewart[1] out and cowhiding him. i will shoot him yet; that very man sitting there. to think that he would put up a woman to come here and deliberately lie about me like that. i will shoot him. they know when i say i will do it that i will do it. i shall shoot him as sure as you live; that man that is sitting right there. and i shall have that woman mrs. smith arrested for this, and make her prove it." and again: "i can hit a four-bit piece nine times out of ten." the examiner said that pending the examination of one of the witnesses, on the occasion mentioned, the respondent drew a pistol from her satchel, and held it in her right hand; the hand resting for a moment upon the table, with the weapon pointed in the direction of judge evans. he also stated that on previous occasions she had brought to the examiner's room during examinations a pistol, and had sat for some length of time holding it in her hand, to the knowledge of all persons present at the time. after the reading of the examiner's report in open court, justice field said: "in the case of william sharon versus sarah althea hill, the examiner in chancery appointed by the court to take the testimony has reported to the court that very disorderly proceedings took place before him on the 3d instant; that at that day, in his room, when counsel of the parties and the defendant were present, and during the examination of a witness by the name of piper, the defendant became very much excited, and threatened to take the life of one of the counsel, and that subsequently she drew a pistol and declared her intention to carry her threat into effect. it appears also from the report of the examiner that on repeated occasions the defendant has attended before him, during the examination of witnesses, armed with a pistol. such conduct is an offense against the laws of the united states punishable by fine and imprisonment. it interferes with the due order of proceedings in the administration of justice, and is well calculated to bring them into contempt. i, myself, have not heretofore sat in this case and do not expect to participate in its decision; i intend in a few days to leave for the east, but i have been consulted by my associate, and have been requested to take part in this side proceeding, for it is of the utmost importance for the due administration of justice that such misbehavior as the examiner reports should be stopped, and measures be taken which will prevent its recurrence. my associate will comment on the laws of congress which make the offense a misdemeanor, punishable by fine and imprisonment. "the marshal of the court will be directed to disarm the defendant whenever she goes before the examiner or into court in any future proceeding, and to appoint an officer to keep strict surveillance over her, in order that she may not carry out her threatened purpose. this order will be entered. the justice then said that it is to be observed that this block, embracing this building--the court-house--is under the exclusive jurisdiction of the united states. every offense committed within it is an offense against the united states, and the state has no jurisdiction whatever. this fact seems to have been forgotten by the parties." the following is the order then entered as directed by justice field: "whereas it appears from the report to this court of the examiner in chancery in this case appointed to take the depositions of witnesses, that on the 3d day of august, instant, at his office, counsel of the parties appeared, namely, william m. stewart, esquire, and oliver p. evans, esquire, for the complainant, and w.b. tyler, esquire, for the defendant, and the defendant in person, and that during the examination before said examiner of a witness named piper, the defendant became excited and threatened the life of the counsel of the complainant present, and exhibited a pistol with a declared intention to carry such threat into effect, thereby obstructing the order of the proceedings, and endeavoring to bring the same into contempt; and "whereas it further appears that said defendant habitually attends before said examiner carrying a pistol, "_it is ordered_, that the marshal of this court take such measures as may be necessary to disarm the said defendant, and keep her disarmed, and under strict surveillance, while she is attending the examination of witnesses before said examiner, and whenever attending in court, and that a deputy be detailed for that purpose." [1] senator stewart, who was one of the counsel against her in the suit. chapter v. decision of the case in the federal court. the taking of the testimony being completed, the cause was set for a hearing on september 9th. after an argument of thirteen days the cause was submitted on the 29th of september, 1885. on the 26th of december, 1885, the court rendered its decision, that the alleged declaration of marriage and the letters purporting to have been addressed "my dear wife" were false and forged, and that the contemporaneous conduct of the parties, and particularly of the defendant, was altogether incompatible with the claim of marriage or the existence of any such declaration or letters. a decree was ordered accordingly, and the court made the following further order: "as the case was argued and submitted during the lifetime of the complainant, who has since deceased, the decree will be entered nunc pro tunc, as of september 29, 1885, the date of its submission and a day prior to the decease of the complainant." the opinion of the court was delivered by judge deady, of the united states district court of oregon, who sat in the case with judge sawyer, the circuit judge. of the old negress under whose direction the fraudulent marriage contract had been manufactured, and under whose advice and direction the suit in the state court had been brought, the judge said: "mary e. pleasant, better known as mammie pleasant, is a conspicuous and important figure in this affair; without her it would probably never have been brought before the public. she appears to be a shrewd old negress of some means. "in my judgment this case and the forgeries and perjuries committed in its support had their origin largely in the brain of this scheming, trafficking, crafty old woman." he found that the declaration of marriage was forged by the defendant by writing the declaration over a simulated signature, and that her claim to be the wife of the plaintiff was wholly false, and had been put forth by her and her co-conspirators for no other purpose than to despoil the plaintiff of his property. judge sawyer also filed an opinion in the case, in which he declared that the weight of the evidence satisfactorily established the forgery and the fraudulent character of the instrument in question. chapter vi. the marriage of terry and miss hill. sarah althea now received a powerful recruit, who enlisted for the war. this was one of her lawyers, david s. terry, whom she married on the 7th day of january, 1886, twelve days after the decision of the circuit court against her, and which he had heard announced, but before a decree had been entered in conformity with the decision. terry seemed willing to take the chances that the decree of the superior court would not be reversed in the supreme court of the state. the decision of the federal court he affected to utterly disregard. it was estimated that not less than $5,000,000 would be sarah althea's share of sharon's estate, in the event of success in her suit. she would be a rich widow if it could be established that she had ever been a wife. she had quarreled with tyler, her principal attorney, long before, and accused him of failing in his professional duty. if she could escape from the obligations of her contract with him, she would not be compelled to divide with him the hoped-for $5,000,000. although judge terry had been chief justice of the supreme court of california, the crimes of perjury and forgery and subornation of perjury which had been loudly charged in judge sullivan's opinion against the woman, in whose favor he gave judgment, seemed to him but trifles. strangely enough, neither he nor sarah althea ever uttered a word of resentment against him on account of these charges. the marriage of terry with this desperate woman in the face of an adverse decision of the circuit court, by which jurisdiction was first exercised upon the subject-matter, was notice to all concerned that, by all the methods known to him, he would endeavor to win her cause, which he thus made his own. he took the position that any denial of sarah althea's pretense to have been the wife of sharon was an insult to her, which could only be atoned by the blood of the person who made it. this was the proclamation of a vendetta against all who should attempt to defend the heirs of mr. sharon in the possession of that half of their inheritance which he and sarah althea had marked for their own. his subsequent course showed that he relied upon the power of intimidation to secure success. he was a man of powerful frame, accustomed all his life to the use of weapons, and known to be always armed with a knife. he had the reputation of being a fighting man. he had decided that sarah althea had been the lawful wife of sharon, and that therefore he had married a virtuous widow. he had not often been crossed in his purpose or been resisted when he had once taken a position. by his marriage he virtually served notice on the judges of the supreme court of the state, before whom the appeal was then pending, that he would not tamely submit to be by them proclaimed to be the dupe of the discarded woman of another. it was well understood that he intended to hold them personally responsible to him for any decision that would have that effect. these intentions were said to have been made known to them. his rule in life, as once stated by himself, was to compel acquiescence in his will by threats of violence, and known readiness to carry his threats into effect. this, he said, would in most cases insure the desired result. he counted on men's reluctance to engage in personal difficulties with him. he believed in the persuasiveness of ruffianism. whether he thought his marriage would frighten judges sawyer and deady, who had just rendered their decision in the united states circuit court, and cause them either to modify the terms of the decree not yet entered, or deter them from its enforcement, is a matter of uncertainty. he was of the ultra state's-rights school and had great faith in the power of the courts of a state when arrayed against those of the united states. he had always denied the jurisdiction of the latter in the case of sarah althea, both as to the subject-matter and as to the parties. he refused to see any difference between a suit for a divorce and a suit to cancel a forged paper, which, if allowed to pass as genuine, would entitle its holder to another's property. he persisted in denying that sharon had been a citizen of nevada during his lifetime, and ignored the determination of this question by the circuit court. but if judge terry had counted on the fears of the united states judges of california he had reckoned too boldly, for on the 15th of january, 1886, eight days after his marriage, the decree of the circuit court was formally entered. this decree adjudged the alleged marriage contract of august 25, 1880, false, counterfeited, fabricated, and fraudulent, and ordered that it be surrendered to be cancelled and annulled, and be kept in the custody of the clerk, subject to the further order of the court; and sarah althea hill and her representatives were perpetually enjoined from alleging the genuineness or the validity of the instrument, or making use of it in any way to support her claims as wife of the complainant. the execution of this decree would, of course, put an end to sarah althea's claim, the hope of maintaining which was supposed to have been the motive of the marriage. to defeat its execution then became the sole object of terry's life. this he hoped to do by antagonizing it with a favorable decision of the supreme court of the state, on the appeals pending therein. it has heretofore been stated that the case against sharon in the superior court was removed from the calendar on the 14th day of november, 1885, because of the defendant's death on the previous day. the 11th of february following, upon proper application, the court ordered the substitution of frederick w. sharon as executor and sole defendant in the suit in the place of william sharon, deceased. the motion for a new trial was argued on the 28th of the following may, and held under advisement until the 4th of the following october, when it was denied. from this order of denial an appeal was taken by the defendant. it must be borne in mind that there were now two appeals in this case to the supreme court of the state from the superior court. one taken on the 25th of february, 1885, from the judgment of judge sullivan, and from his order for alimony and fees, and the other an appeal taken october 4, 1886, from the order denying the new trial in the cause. on the 31st of january, 1888, the supreme court rendered its decision, affirming the judgment of the superior court in favor of sarah althea, but reversing the order made by judge sullivan granting counsel fees, and reducing the allowance for alimony from $2,500 per month to $500. four judges concurred in this decision, namely, mckinstry, searles, patterson, and temple. three judges dissented, to wit, thornton, sharpstein, and mcfarland. there then remained pending in the same court the appeal from the order granting a new trial. it was reasonable that terry should expect a favorable decision on this appeal, as soon as it could be reached. this accomplished, he and sarah althea thought to enter upon the enjoyment of the great prize for which they had contended with such desperate energy. terry had always regarded the decree of the circuit court as a mere harmless expression of opinion, which there would be no attempt to enforce, and which the state courts would wholly ignore. whatever force it might finally be given by the supreme court of the united states appeared to him a question far in the future, for he supposed he had taken an appeal from the decree. this attempted appeal was found to be without effect, because when ordered the suit had abated by the death of the plaintiff, and no appeal could be taken until the case was revived by order of the court. this order was never applied for. the two years within which an appeal could have been taken expired january 15, 1888. the decree of the circuit court had therefore become final at that time. chapter vii. the bill of revivor. it was at this stage of the prolonged legal controversy that justice field first sat in the case. the executor of the sharon estate, on the 12th of march, 1888, filed a bill of revivor in the united states circuit court. this was a suit to revive the case of sharon vs. hill, that its decree might stand in the same condition and plight in which it was at the time of its entry, which, being _nunc pro tunc_, was of the same effect as if the entry had preceded the death of mr. sharon, the case having been argued and submitted during his lifetime. the decree directed the surrender and cancellation of the forged marriage certificate, and perpetually enjoined sarah althea hill, and her representatives, from alleging the genuineness or validity of that instrument, or making any use of the same in evidence, or otherwise to support any rights claimed under it. the necessity for this suit was the fact that the forged paper had not been surrendered for cancellation, as ordered by the decree, and the plaintiff feared that the defendant would claim and seek to enforce property rights as wife of the plaintiff, by authority of the alleged written declaration of marriage, under the decree of another court, essentially founded thereupon, contrary to the perpetual injunction ordered by the circuit court. to this suit, david s. terry, as husband of the defendant, was made a party. it merely asked the circuit court to place its own decree in a position to be executed, and thereby prevent the spoliation of the sharon estate, under the authority of the decree of judge sullivan in the suit in the state court subsequently commenced. a demurrer was filed by the defendant. it was argued in july before justice field, judge sawyer, and district judge sabin. it was overruled on the 3d of september, when the court ordered that the original suit of sharon against hill, and the final decree therein, stand revived in the name of frederick w. sharon as executor, and that the said suit and the proceedings therein be in the same plight and condition they were in at the death of william sharon, so as to give the executor, complainant as aforesaid, the full benefit, rights, and protection of the decree, and full power to enforce the same against the defendants, and each of them, at all times and in all places, and in all particulars. the opinion in the case was delivered by justice field. during its delivery he was interrupted by mrs. terry with violent and abusive language, and an attempt by her to take a pistol from a satchel which she held in her hand. her removal from the court-room by order of justice field; her husband's assault upon the marshal with a deadly weapon for executing the order, and the imprisonment of both the terrys for contempt of court, will be more particularly narrated hereafter. the commencement of the proceedings for the revival of the suit was well calculated to alarm the terrys. they saw that the decree in the circuit court was to be relied upon for something more than its mere moral effect. their feeling towards judges sawyer and deady was one of most intense hatred. judge deady was at his home in oregon, beyond the reach of physical violence at their hands, but judge sawyer was in san francisco attending to his official duties. upon him they took an occasion to vent their wrath. it was on the 14th of august, 1888, after the commencement of the revivor proceedings, but before the decision. judge sawyer was returning in the railway train to san francisco from los angeles, where he had been to hold court. judge terry and his wife took the same train at fresno. judge sawyer occupied a seat near the center of the sleeping-car, and judge and mrs. terry took the last section of the car, behind him, and on the same side. a few minutes after leaving fresno, mrs. terry walked down the aisle to a point just beyond judge sawyer, and turning around with an ugly glare at him, hissed out, in a spiteful and contemptuous tone: "are you here?" to which the judge quietly replied: "yes, madam," and bowed. she then resumed her seat. a few minutes after, judge terry walked down the aisle about the same distance, looked over into the end section at the front of the car, and finding it vacant, went back, got a small hand-bag, and returned and seated himself in the front section, with his back to the engine and facing judge sawyer. mrs. terry did not (at the moment) accompany him. a few minutes later she walked rapidly down the passage, and as she passed judge sawyer, seized hold of his hair at the back of his head, gave it a spiteful twitch and passed quickly on, before he could fully realize what had occurred. after passing she turned a vicious glance upon him, which was continued for some time after taking her seat by the side of her husband. a passenger heard mrs. terry say to her husband: "i will give him a taste of what he will get bye and bye." judge terry was heard to remark: "the best thing to do with him would be to take him down the bay and drown him." upon the arrival of judge sawyer at san francisco, he entered a street car, and was followed by the terrys. mrs. terry took a third seat from him, and seeing him, said: "what, are you in this car too?" when the terrys left the car mrs. terry addressed some remark to judge sawyer in a spiteful tone, and repeated it. he said he did not quite catch it, but it was something like this: "we will meet again. this is not the end of it." persons at all familiar with the tricks of those who seek human life, and still contrive to keep out of the clutches of the law, will see in the scene above recited an attempt to provoke an altercation which would have been fatal to judge sawyer, if he had resented the indignity put upon him by mrs. terry, by even so much as a word. this could easily have been made the pretext for an altercation between the two men, in which the result would not have been doubtful. there could have been no proof that judge terry knew of his wife's intention to insult and assault judge sawyer as she passed him, nor could it have been proven that he knew she had done so. a remonstrance from sawyer could easily have been construed by terry, upon the statement of his wife, into an original, unprovoked, and aggressive affront. it is now, however, certain that the killing of judge sawyer was not at that time intended. it may have been, to use mrs. terry's words, "to give him a taste of what he would get bye and bye," if he should dare to render the decision in the revivor case adversely to them. this incident has been here introduced and dwelt upon for the purpose of showing the tactics resorted to by the terrys during this litigation, and the methods by which they sought to control decisions. it is entirely probable that they had hopes of intimidating the federal judges, as many believed some state judges had been, and that thus they might "from the nettle danger, pluck the flower safety." we have seen that they reckoned without their host. we shall now see to what extent their rage carried them on the day that the decision was rendered reviving the decree. chapter viii. the terrys imprisoned for contempt. on the day after judge sawyer's return from los angeles he called the marshal to his chambers, and notified him of mrs. terry's violent conduct towards him on the train in the presence of her husband, so that he might take such steps as he thought proper to keep order when they came into the court-building, and see that there was no disturbance in the court-room. on the morning of september 3d, the marshal was again summoned to judge sawyer's room, where judge field was also present. they informed him that the decision in the revival suit would be rendered that day, and they desired him to be present, with a sufficient number of bailiffs to keep order in court. they told him that judging from the action of the terrys on the train, and the threats they were making so publicly, and which were being constantly published in the newspapers, it was not impossible that they might create a disturbance in the court-room. when the court opened that day, it found terry and his wife already seated within the bar, and immediately in front of the judges. as it afterward appeared, they were both on a war-footing, he being armed with a concealed bowie-knife, and she with a 41-calibre revolver, which she carried in a small hand-bag, five of its chambers being loaded. the judges took their seats on the bench, and very shortly afterward justice field, who presided, began reading the opinion of the court in which both of his associates concurred. a printed pamphlet copy of this opinion contains 61 pages, of which 18 are taken up with a statement of the case. the opinion commences at page 19 and covers the remaining 42 pages of the pamphlet. from time to time, as the reading of the opinion progressed, mrs. terry, who was greatly excited, was observed to unclasp and clasp again the fastening of her satchel which contained her pistol, as if to be sure she could do so at any desired moment. at the 11th page of the opinion the following passage occurs: "the original decree is not self-executing in all its parts; it may be questioned whether any steps could be taken for its enforcement, until it was revived, but if this were otherwise, the surrender of the alleged marriage contract for cancellation, as ordered, requires affirmative action on the part of the defendant. the relief granted is not complete until such surrender is made. when the decree pronounced the instrument a forgery, not only had the plaintiff the right that it should thus be put out of the way of being used in the future to his embarrassment and the embarrassment of his estate, but public justice required that it should be formally cancelled, that it might constantly bear on its face the evidence of its bad character, whenever or wherever presented or appealed to." when mrs. terry heard the above words concerning the surrender of the alleged marriage contract for cancellation, she first endeavored for a few seconds, but unsuccessfully, to open the satchel containing her pistol. for some reason the catch refused to yield. then, rising to her feet, and placing the satchel before her on the table, she addressed the presiding justice, saying: "are you going to make me give up my marriage contract?" justice field said, "be seated, madam." she repeated her question: "are you going to take the responsibility of ordering me to deliver up that contract?" she was again ordered to resume her seat. at this she commenced raving loudly and violently at the justice in coarse terms, using such phrases as these: "mr. justice field, how much have you been bought for? everybody knows that you have been bought; that this is a paid decision." "how big was the sack?" "how much have you been paid for the decision?" "you have been bought by newland's coin; everybody knows you were sent out here by the newlands to make this decision." "every one of you there have been paid for this decision." at the commencement of this tirade, and after her refusal to desist when twice ordered to do so, the presiding justice directed the marshal to remove her from the court-room. she said defiantly: "i will not be removed from the court-room; you dare not remove me from the court-room." judge terry made no sign of remonstrance with her, had not endeavored to restrain her, but had, on the contrary, been seen to nod approvingly to her, as if assenting to something she had said to him just before she sprang to her feet. the instant, however, the court directed her removal from the room, of which she had thus taken temporary possession, to the total suspension of the court proceedings, his soul was "in arms and eager for the fray." as the marshal moved toward the offending woman, he rose from his seat, under great excitement, exclaiming, among other things, "no living man shall touch my wife!" or words of that import, and dealt the marshal a violent blow in the face,[1] breaking one of his front teeth. he then unbuttoned his coat and thrust his hand under his vest, where his bowie-knife was kept, apparently for the purpose of drawing it, when he was seized by persons present, his hands held from drawing his weapon, and he himself forced down on his back. the marshal, with the assistance of a deputy, then removed mrs. terry from the court-room, she struggling, screaming, kicking, striking, and scratching them as she went, and pouring out imprecations upon judges field and sawyer, denouncing them as "corrupt scoundrels," and declaring she would kill them both. she was taken from the room into the main corridor, thence into the marshal's business office, and then into an inner room of his office. she did not cease struggling when she reached that room, but continued her frantic abuse. while mrs. terry was being removed from the court-room terry was held down by several strong men. he was thus, by force alone, prevented from drawing his knife on the marshal. while thus held he gave vent to coarse and denunciatory language against the officers. when mrs. terry was removed from the court-room he was allowed to rise. he at once made a swift rush for the door leading to the corridor on which was the marshal's office. as he was about leaving the room or immediately after stepping out of it, he succeeded in drawing his knife. as he crossed the threshold he brandished the knife above his head, saying, "i am going to my wife." there was a terrified cry from the bystanders: "he has got a knife." his arms were then seized by a deputy marshal and others present, to prevent him from using it, and a desperate struggle ensued. four persons held on to the arms and body of terry, and one presented a pistol to his head, threatening at the same time to shoot him if he did not give up the knife. to these threats terry paid no attention, but held on to the knife, actually passing it during the struggle from one hand to the other. david neagle then seized the handle of the knife and commenced drawing it through terry's hand, when terry relinquished it. the whole scene was one of the wildest alarm and confusion. to use the language of one of the witnesses, "terry's conduct throughout this affair was most violent. he acted like a demon, and all the time while in the corridor he used loud and violent language, which could be plainly heard in the court-room, and, in fact, throughout the building," applying to the officers vile epithets, and threatening to cut their hearts out if they did not let him go to his wife. the knife which terry drew, and which he afterwards designated as "a small sheath knife," was, including the handle, nine and a quarter inches long, the blade being five inches, having a sharp point, and is commonly called a bowie-knife. he himself afterwards represented that he drew this knife, not "because he wanted to hurt anybody, but because he wanted to force his way into the marshal's office." the presiding justice had read only a small portion of the opinion of the court when he was interrupted by the boisterous and violent proceedings described. on their conclusion, by the arrest of the terrys, he proceeded with the reading of the opinion, which occupied nearly a whole hour. the justices, without adjourning the court, then retired to the adjoining chambers of the presiding justice for deliberation. they there considered of the action which should be taken against the terrys for their disorderly and contemptuous conduct. after determining what that should be they returned to the court-room and announced it. for their conduct and resistance to the execution of the order of the court both were adjudged guilty of contempt and ordered, as a punishment, to be imprisoned in the county jail, terry for six months and his wife for thirty days. when terry heard of the order, and the commitment was read to him, he said, "judge field" (applying to him a coarse and vituperative epithet) "thinks when i get out, when i get released from jail, that he will be in washington, but i will meet him when he comes back next year, and it will not be a very pleasant meeting for him." mrs. terry said that she would kill both judges field and sawyer, and repeated the threat several times. while the prisoners were being taken to jail, mrs. terry said to her husband, referring to judge sawyer: "i wooled him good on the train coming from los angeles. he has never told that." to which he replied: "he will not tell that; that was too good." she said she could have shot judge field and killed him from where she stood in the court-room, but that she was not ready then to kill the old villain; she wanted him to live longer. while crossing the ferry to oakland she said, "i could have killed judges field and sawyer; i could shoot either one of them, and you would not find a judge or a jury in the state would convict me." she repeated this, and terry answered, saying: "no, you could not find a jury that would convict any one for killing the old villain," referring to judge field. the jailer at alameda testified that one day mrs. terry showed him the sheath of her husband's knife, saying: "that is the sheath of that big bowie-knife that the judge drew. don't you think it is a large knife?" judge terry was present, and laughed and said: "yes; i always carry that," meaning the knife. to j.h. o'brien, a well-known citizen, judge terry said that "after he got out of jail he would horsewhip judge field. he said he did not think he would ever return to california, but this earth was not large enough to keep him from finding judge field, and horsewhipping him," and said, "if he resents it i will kill him." to a newspaper writer, thomas t. williams, he said: "judge field would not dare to come out to the pacific coast, and he would have a settlement with him if he did come." j.m. shannon, a friend of terry's for thirty years, testified that while the terrys were in jail he called there with mr. wigginton, formerly a member of congress from california; that during the call mrs. terry said something to her husband to the effect that they could not do anything at all in regard to it. he said: "yes, we can." she asked what they could do. he said: "i can kill old sawyer, damn him. i will kill old sawyer, and then the president will have to appoint some one in his place." in saying this "he brought his fist down hard and seemed to be mad." ex-congressman wigginton also testified concerning this visit to terry. it occurred soon after the commitment. he went to arrange about some case in which he and terry were counsel on opposite sides. he told terry of a rumor that there was some old grudge or difference between him and judge field. terry said there was none he knew of. he said: "'when judge field's name was mentioned as candidate for president of the united states,'--i think he said,--'when i was a delegate to the convention, it being supposed that i had certain influence with a certain political element, that also had delegates in the convention, some friend or friends'--i will not be sure whether it was friend or friends--'of judge field came to me and asked for my influence with these delegates to secure the nomination for judge field. my answer'--i am now stating the language as near as i can of judge terry's--'my answer was, 'no, i have no influence with that element.' i understood it to be the workingmen's delegates. i could not control these delegates, and if i could would not control them for field.' he said: 'that may have caused some alienation, but i do not know that field knew that.'" mr. wigginton said that mrs. terry asked her husband what he could do, and he replied, showing more feeling than he had before: "do? i can kill old sawyer, and by god, if necessary, i will, and the president will then have to appoint some one else in his place." [1] one of the witnesses stated that terry also said, "get a written order from the court." chapter ix. terry's petition to the circuit court for a release--its refusal--he appeals to the supreme court--unanimous decision against him there--president cleveland refuses to pardon him--falsehoods refuted. on the 12th of september terry petitioned the circuit court for a revocation of the order of imprisonment in his case, and in support thereof made the following statement under oath: "that when petitioner's wife, the said sarah a. terry, first arose from her seat, and before she uttered a word, your petitioner used every effort in his power to cause her to resume her seat and remain quiet, and he did nothing to encourage her in her acts of indiscretion; when this court made the order that petitioner's wife be removed from the court-room your petitioner arose from his seat with the intention and purpose of himself removing her from the court-room quietly and peaceably, and that he had no intention or design of obstructing or preventing the execution of said order of the court; that he never struck or offered to strike the united states marshal until the said marshal had assaulted himself, and had in his presence violently, and as he believed unnecessarily, assaulted the petitioner's wife. "your petitioner most solemnly swears that he neither drew nor attempted to draw any deadly weapon of any kind whatever in said court-room, and that he did not assault or attempt to assault the u.s. marshal with any deadly weapon in said court-room or elsewhere. and in this connection he respectfully represents that after he left said court-room he heard loud talking in one of the rooms of the u.s. marshal, and among the voices proceeding therefrom he recognized that of his wife, and he thereupon attempted to force his way into said room through the main office of the united states marshal; the door of the room was blocked by such a crowd of men that the door could not be closed; that your petitioner then, for the first time, drew from inside his vest a small sheath-knife, at the same time saying to those standing in his way in said door, that he did not want to hurt any one; that all he wanted was to get into the room where his wife was. the crowd then parted and your petitioner entered the doorway, and there saw a united states deputy marshal with a revolver in his hand pointed to the ceiling of the room. some one then said: 'let him in if he will give up his knife,' and your petitioner immediately released hold of the knife to some one standing by. "in none of these transactions did your petitioner have the slightest idea of showing any disrespect to this honorable court or any of the judges thereof. "that he lost his temper, he respectfully submits was a natural consequence of himself being assaulted when he was making an honest effort to peaceably and quietly enforce the order of the court, so as avoid a scandalous scene, and of his seeing his wife so unnecessarily assaulted in his presence." it will be observed that terry, in his petition, contradicts the facts recited in the orders for the commitment of himself and his wife. these orders were made by justice field. circuit judge sawyer, and district judge sabin from the district of nevada, who did not depend upon the testimony of others for information as to the facts in the case, but were, themselves, eye-witnesses and spoke from personal observation and absolute knowledge. in passing upon terry's petition, these judges, speaking through justice field, who delivered the opinion of the court, bore testimony to a more particular account of the conduct of terry and his wife than had been given in the order for the commitment. as the scene has already been described at length, this portion of the opinion of the court would be a mere repetition, and is therefore omitted. after reciting the facts, justice field referred to the gravity of terry's offense in the following terms: "the misbehavior of the defendant, david s. terry, in the presence of the court, in the court-room, and in the corridor, which was near thereto, and in one of which (and it matters not which) he drew his bowie-knife, and brandished it with threats against the deputy of the marshal and others aiding him, is sufficient of itself to justify the punishment imposed. but, great as this offense was, the forcible resistance offered to the marshal in his attempt to execute the order of the court, and beating him, was a far greater and more serious affair. the resistance and beating was the highest possible indignity to the government. when the flag of the country is fired upon and insulted, it is not the injury to the bunting, the linen, or silk on which the stars and stripes are stamped which startles and arouses the country. it is the indignity and insult to the emblem of the nation's majesty which stirs every heart, and makes every patriot eager to resent them. so, the forcible resistance to an officer of the united states in the execution of the process, orders, and judgments of their courts is in like manner an indignity and insult to the power and authority of the government which can neither be overlooked nor extenuated." after reviewing terry's statement, justice field said: "we have read this petition with great surprise at its omissions and misstatements. as to what occurred under our immediate observation, its statements do not accord with the facts as we saw them; as to what occurred at the further end of the room and in the corridor, its statements are directly opposed to the concurring accounts of the officers of the court and parties present, whose position was such as to preclude error in their observations. according to the sworn statement of the marshal, which accords with our own observations, so far from having struck or assaulted terry, he had not even laid his hands upon him when the violent blow in the face was received. and it is clearly beyond controversy that terry never voluntarily surrendered his bowie-knife, and that it was wrenched from him only after a violent struggle. "we can only account for his misstatement of facts as they were seen by several witnesses, by supposing that he was in such a rage at the time that he lost command of himself, and does not well remember what he then did, or what he then said. some judgment as to the weight this statement should receive, independently of the incontrovertible facts at variance with it, may be formed from his speaking of the deadly bowie-knife he drew as 'a small sheath-knife,' and of the shameless language and conduct of his wife as 'her acts of indiscretion.' "no one can believe that he thrust his hand under his vest where his bowie-knife was carried without intending to draw it. to believe that he placed his right hand there for any other purpose--such as to rest it after the violent fatigue of the blow in the marshal's face or to smooth down his ruffled linen--would be childish credulity. "but even his own statement admits the assaulting of the marshal, who was endeavoring to enforce the order of the court, and his subsequently drawing a knife to force his way into the room where the marshal had removed his wife. yet he offers no apology for his conduct; expresses no regret for what he did, and makes no reference to his violent and vituperative language against the judges and officers of the court, while under arrest, which is detailed in the affidavits filed." in refusing to grant the petition the court said: "there is nothing in his petition which would justify any remission of the imprisonment. the law imputes an attempt to accomplish the natural result of one's acts, and when these acts are of a criminal nature it will not accept, against such implication, the denial of the transgressor. no one would be safe if the denial of a wrongful or criminal act would suffice to release the violator of the law from the punishment due his offenses." on september 17, 1888, after the announcement of the opinion of the court by mr. justice field denying the petition of d.s. terry for a revocation of the order committing him for contempt, mr. terry made public a correspondence between himself and judge solomon heydenfeldt, which explains itself, and is as follows: "my dear terry: "the papers which our friend stanley sends you will explain what we are trying to do. i wish to see field to-morrow and sound his disposition, and if it seems advisable i will present our petition. but in order to be effective, and perhaps successful, i wish to feel assured and be able to give the assurance that failure to agree will not be followed by any attempt on your part to break the peace either by action or demonstration. i know that you would never compromise me in any such manner, but it will give me the power to make an emphatic assertion to that effect and that ought to help. "please answer promptly. "s. heydenfeldt." the reply of judge terry is as follows: "dear heydenfeldt: "your letter was handed me last evening. i do not expect a favorable result from any application to the circuit court, and i have very reluctantly consented that an application be made to judge field, who will probably wish to pay me for my refusal to aid his presidential aspirations four years ago. i had a conversation with garber on saturday last in which i told him if i was released i would seek no personal satisfaction for what had passed. you may say as emphatically as you wish that i do not contemplate breaking the peace, and that, so far from seeking, i will avoid meeting any of the parties concerned. i will not promise that i will refrain from denouncing the decision or its authors. i believe that the decision was purchased and paid for with coin from the sharon estate, and i would stay here for ten years before i would say that i did not so believe. if the judges of the circuit court would do what is right they would revoke the order imprisoning my wife. she certainly was in contempt of court, but that great provocation was given by going outside the record to smirch her character ought to be taken into consideration in mitigation of the sentence. field, when a legislator, thought that no court should be allowed to punish for contempt by imprisonment for a longer period than five days. my wife has already been in prison double that time for words spoken under very great provocation. no matter what the result, i propose to stay here until my wife is dismissed. "yours truly, "d.s. terry." in the opinion of the court, referred to in the foregoing letter as "smirching the character" of mrs. terry, there was nothing said reflecting upon her, except what was contained in quotations from the opinion of judge sullivan of the state court in the divorce case of sharon vs. hill in her favor. these quotations commenced at page 58 of the pamphlet copy of justice field's opinion, when less than three pages remained to be read. it was at page 29 of the pamphlet that justice field was reading when mrs. terry interrupted him and was removed from the court-room. after her removal he resumed the reading of the opinion, and only after reading 29 pages, occupying nearly an hour, did he reach the quotations in which judge sullivan expressed his own opinion that mrs. terry had committed perjury several times in his court. the reading of them could not possibly have furnished her any provocation for her conduct. she had then been removed from the court-room more than an hour. besides, if they "smirched" her character, why did she submit to them complacently when they were originally uttered from the bench by judge sullivan in his opinion rendered in her favor? justice field, in what he was reading that so incensed mrs. terry, was simply stating the effect of a decree previously rendered in a case, in the trial of which he had taken no part. he was stating the law as to the rights established by that decree. the efforts then made by terry, and subsequently by his friends and counsel, to make it appear that his assault upon the marshal and defiance of the court were caused by his righteous indignation at assaults made by judge field upon his wife's character were puerile, because based on a falsehood. the best proof of this is the opinion itself. judge terry next applied to the supreme court of the united states for a writ of habeas corpus. in that application he declared that on the 12th day of september, 1888, he addressed to the circuit court a petition duly verified by his oath, and then stated the petition for release above quoted. yet in a communication published in the _san francisco examiner_ of october 22d he solemnly declared that this very petition was not filed by any one on his behalf. after full argument by the supreme court the writ was denied, november 12, 1888, by an unanimous court, justice field, of course, not sitting in the case. justice harlan delivered the opinion of the court. chapter x. president cleveland refuses to pardon terry--false statements of terry refuted. before the petition for habeas corpus was presented to the supreme court of the united states, judge terry's friends made a strenuous effort to secure his pardon from president cleveland. the president declined to interfere. in his efforts in that direction judge terry made gross misrepresentations as to judge field's relations with himself, which were fully refuted by judge heydenfeldt, the very witness he had invoked. judge heydenfeldt had been an associate of judge terry on the state supreme bench. these representations and their refutation are here given as a necessary element in this narrative. five days after he had been imprisoned, to wit, september 8, terry wrote a letter to his friend zachariah montgomery at washington, then assistant attorney-general for the interior department under the cleveland administration, in which he asked his aid to obtain a pardon from the president. knowing that it would be useless to ask this upon the record of his conduct as shown by the order for his commitment, he resorted to the desperate expedient of endeavoring to overcome that record by putting his own oath to a false statement of the facts, against the statement of the three judges, made on their own knowledge, as eye-witnesses, and supported by the affidavits of court officers, lawyers, and spectators. to montgomery he wrote: "i have made a plain statement of the facts which occurred in the court, and upon that propose to ask the intervention of the president, and i request you to see the president; tell him all you know of me, and what degree of credit should be given to a statement by me upon my own knowledge of the facts. when you read the statement i have made you will be satisfied that the statement in the order of the court is false." he then proceeded to tell his story as he told it in his petition to the circuit court. his false representations as to the assault he made upon the marshal, and as to his alleged provocation therefor, were puerile in the extreme. he stood alone in his declaration that the marshal first assaulted him, while the three judges and a dozen witnesses declared the very opposite. his denial that he had assaulted the marshal with a deadly weapon was contradicted by the judges and others, who said that they saw him attempt to draw a knife in the court-room, which attempt, followed up as it was continually until successful, constituted an assault with that weapon. to call his bowie-knife "a small sheath-knife," and the outrageous conduct of his wife "acts of indiscretion;" to pretend that he lost his temper because he was assaulted "while making an honest effort to peaceably and quietly enforce the order of the court," and finally to pretend that his wife had been "unnecessarily assaulted" in his presence, was all not only false, but simply absurd and ridiculous. he said: "i don't want to stay in prison six months for an offense of which i am not guilty. there is no way left except to appeal to the president. the record of a court imports absolute verity, so i am not allowed to show that the record of the circuit court is absolutely false. if you can help me in this matter you will confer on me the greatest possible favor." he told montgomery that it had been suggested to him that one reason for field's conduct was his refusal to support the latter's aspirations for the presidency. in this connection he made the following statement: "in march, 1884, i received a note from my friend judge heydenfeldt, saying that he wished to see me on important business, and asking me to call at his office. i did so, and he informed me that he had received a letter from judge field, who was confident that if he could get the vote of california in the democratic national convention, which would assemble that year, he would be nominated for president and would be elected as, with the influence of his family and their connection, that he would certainly carry new york; that judge field further said that a congressman from california and other of his friends had said that if i would aid him, i could give him the california delegation; that he understood i wanted official recognition as, because of my duel years ago, i was under a cloud; that if i would aid him, i should have anything i desired." it will be observed that he here positively states that judge heydenfeldt told him he had received a letter from judge field, asking terry's aid and promising, for it, a reward. judge heydenfeldt, in a letter dated august 21, 1889, to the _san francisco examiner_, branded terry's assertion as false. the letter to the _examiner_ is as follows: "the statement made in to-day's _examiner_ in reference to the alleged letter from justice field to me, derived, as is stated by mr. ashe, from a conversation with judge terry, is utterly devoid of truth. "i had at one time, many years ago, a letter from justice field, in which he stated that he was going to devote his leisure to preparing for circulation among his friends his reminiscences, and, referring to those of early california times, he requested me to obtain from judge terry his, terry's, version of the terry-broderick duel, in order that his account of it might be accurate. as soon as i received this letter, i wrote to judge terry, informing him of judge field's wishes, and recommending him to comply, as coming, as the account would, from friendly hands, it would put him correct upon the record, and would be in a form which would endure as long as necessary for his reputation on that subject. "i received no answer from judge terry, but meeting him, some weeks after, on the street in this city, he excused himself, saying that he had been very busy, and adding that it was unnecessary for him to furnish a version of the duel, as the published and accepted version was correct. "the letter to me from justice field above referred to is the only letter from justice field to me in which judge terry's name was ever mentioned, and, with the exception of the above-mentioned street conversation, judge field was never the subject of conversation between judge terry and myself, from the time i left the bench, on the 1st of january, 1857, up to the time of terry's death. "as to the statement that during terry's trouble with the sharon case, i offered terry the use of field's letter, it results from what i have above stated--that it is a vile falsehood, whoever may be responsible for it. "i had no such letter, and consequently could have made no such offer. "san francisco, august 21, 1889. "s. heydenfeldt." judge heydenfeldt subsequently addressed the following letter to judge field: "san francisco, _august 31, 1889_. "my dear judge: i received yours of yesterday with the extract from the washington _post_ of the 22d inst., containing a copy of a letter from the late judge terry to the hon. zack montgomery. "the statement in that letter of a conversation between terry and myself in reference to you is untrue. the only conversation terry and i ever had in relation to you was, as heretofore stated, in regard to a request from you to me to get from terry his version of the terry-broderick duel, to be used in your intended reminiscences. "i do not see how terry could have made such an erroneous statement, unless, possibly, he deemed that application as an advance made by you towards obtaining his political friendship, and upon that built up a theory, which he moulded into the fancy written by him in the montgomery letter. "in all of our correspondence, kept up from time to time since your first removal to washington down to the present, no letter of yours contained a request to obtain the political support of any one. "i remain, dear judge, very truly yours, "s. heydenfeldt. "hon. stephen j. field, "palace hotel, san francisco." at the hearing of the neagle case, justice field was asked if he had been informed of any statements made by judge terry of ill feeling existing between them before the latter's imprisonment for contempt. he replied: "yes, sir. since that time i have seen a letter purporting to come from terry to zack montgomery, published in washington, in which he ascribed my action to personal hostility, because he had not supported me in some political aspiration. there is not one particle of truth in that statement. it is a pure invention. in support of his statement he referred to a letter received or an interview had with judge heydenfeldt. there is not the slightest foundation for it, and i cannot understand it, except that the man seems to me to have been all changed in the last few years, and he did not hesitate to assert that the official actions of others were governed by improper considerations. i saw charges made by him against judges of the state courts; that they had been corrupt in their decisions against him; that they had been bought. that was the common assertion made by him when decisions were rendered against him." he then referred to the above letters of judge heydenfeldt, declaring terry's assertion to be false. it should be borne in mind that terry's letter to montgomery was written september 8th. it directly contradicts what he had said to ex-congressman wigginton on the 5th or 6th of the same month. to that gentleman he declared that he knew of no "old grudge or little difference" between himself and judge field. he said he had declined to support the latter for the presidency, and added: "that may have caused some alienation, but i do not know that judge field knew that." in his insane rage terry did not realize how absurd it was to expect people to believe that judge sawyer and judge sabin, both republicans, had participated in putting him in jail, to punish him for not having supported justice field for the presidency in a national democratic convention years before. perhaps terry thought his reference to the fact that judge field's name had been previously used in democratic conventions, in connection with the presidency, might have some effect upon president cleveland's mind. this letter was not forwarded to zachariah montgomery until a week after it was written. he then stated in a postscript that he had delayed sending it upon the advice of his attorneys pending the application to the circuit court for his release. again he charged that the judges had made a false record against him, and that evidence would be presented to the president to show it. terry and his friends brought all the pressure to bear that they could command, but the president refused his petition for a pardon, and, as already shown, the supreme court unanimously decided that his imprisonment for contempt had been lawfully ordered. he was therefore obliged to serve out his time. mrs. terry served her thirty days in jail, and was released on the 3d of october. there is a federal statute that provides for the reduction of a term of imprisonment of criminals for good behavior. judge terry sought to have this statute applied in his case, but without success. the circuit court held that the law relates to state penitentiaries, and not to jails, and that the system of credits could not be applied to prisoners in jail. besides this, the credits in any case are counted by the year, and not by days or months. the law specifies that prisoners in state prisons are entitled to so many months' time for the first year, and so many for each subsequent year. as terry's sentence ran for six months, the court said the law could not apply. he consequently remained in jail until the 3d of march, 1889. chapter xi. terry's continued threats to kill justice field--return of the latter to california in 1889. justice field left california for washington in september, 1888, a few days after the denial of terry's petition to the circuit court for a release. the threats against his life and that of judge sawyer so boldly made by the terrys were as well known as the newspaper press could make them. in addition to this source of information, reports came from many other directions, telling of the rage of the terrys and their murderous intentions. from october, 1888, till his departure for california, in june following, 1889, his mail almost every day contained reports of what they were saying, and the warnings and entreaties of his friends against his return to that state. these threats came to the knowledge of the attorney-general of the united states, who gave directions to the marshal of the northern district of california to see to it that justice field and judge sawyer should be protected from personal violence at the hands of these parties. justice field made but one answer to all who advised against his going to hold court in california in 1889, and that was, "i cannot and will not allow threats of personal violence to deter me from the regular performance of my judicial duties at the times and places fixed by law. as a judge of the highest court of the country, i should be ashamed to look any man in the face if i allowed a ruffian, by threats against my person, to keep me from holding the regular courts in my circuit." terry's murderous intentions became a matter of public notoriety, and members of congress and senators from the pacific coast, in interviews with the attorney-general, confirmed the information derived by him from other sources of the peril to which the united states judges in california were subjected. he, in consequence, addressed the following letter on the subject to marshal franks: "department of justice, "washington, _april 27, 1889_. "john c. franks, "_united states marshal, san francisco, cal._ "sir: the proceedings which have heretofore been had in the case of mr. and mrs. terry in your united states circuit court have become matter of public notoriety, and i deem it my duty to call your attention to the propriety of exercising unusual precaution, in case further proceedings shall be had in that case, for the protection of his honor justice field, or whoever may be called upon to hear and determine the matter. of course, i do not know what may be the feelings or purpose of mr. and mrs. terry in the premises, but many things which have happened indicate that violence on their part is not impossible. it is due to the dignity and independence of the court and the character of its judges that no effort on the part of the government shall be spared to make them feel entirely safe and free from anxiety in the discharge of their high duties. "you will understand, of course, that this letter is not for the public, but to put you upon your guard. it will be proper for you to show it to the district attorney if deemed best. "yours truly, "w.h.h. miller, "_attorney-general_." a month later the attorney-general authorized the employment of special deputies for the purpose named in the foregoing letter. chapter xii. further proceedings in the state court.--judge sullivan's decision reversed. mrs. terry did not wait for the release of her husband from jail before renewing the battle. on the 22d of january, 1889, she gave notice of a motion in the superior court for the appointment of a receiver who should take charge of the sharon estate, which she alleged was being squandered to the injury of her interest therein acquired under the judgment of judge sullivan. on the 29th of january an injunction was issued by the united states circuit court commanding her and all others to desist from this proceeding. the terrys seemed to feel confident that this would bring on a final trial of strength between the federal and state courts, and that the state court would prevail in enforcing its judgment and orders. the motion for a receiver was submitted after full argument, and on the 3d of june following judge sullivan rendered a decision asserting the jurisdiction of his court to entertain the motion for a receiver, and declaring the decree of the united states circuit court inoperative. in his opinion judge sullivan reviewed the opinion of justice field in the revivor suit, taking issue therewith. as that decision had been affirmed by the supreme court of the united states nearly a month before, to wit, on the 13th of may, 1889, it was rather late for such a discussion. having thus decided, however, that the motion for a receiver could be made, he set the hearing of the same for july 15, 1889. on the 27th of may, one week before the rendering of this decision by judge sullivan, the mandate of the united states supreme court had been filed in the circuit court at san francisco, by which the decree of that court was affirmed. whether a receiver would be appointed by judge sullivan, in the face of the decision of the supreme court of the united states, became now an interesting question. terry and his lawyers affected to hold in contempt the supreme court decree, and seemed to think no serious attempt would be made to enforce it. meantime, both of the terrys had been indicted in the united states circuit court for the several offenses committed by them in assaulting the marshal in the court-room as hereinbefore described. these indictments were filed on the 20th of september. dilatory motions were granted from time to time, and it was not until the 4th of june that demurrers to the indictments were filed. the summer vacation followed without any argument of these demurrers. it was during this vacation that justice field arrived in california, on the 20th of june. the situation then existing was as follows: the criminal proceedings against the terrys were at a standstill, having been allowed to drag along for nine months, with no further progress than the filing of demurrers to the indictments. the appeal to the supreme court of the state from judge sullivan's order denying a new trial had been argued and submitted on the 4th of may, but no decision had been rendered. despite the pendency of that appeal, by reason of which the judgment of the supreme court of the state had not yet become final, and despite the mandate of the united states supreme court affirming the decree in the revivor case, judge sullivan had, as we have already seen, set the 15th of july for the hearing of the motion of the terrys for the appointment of a receiver to take charge of the sharon estate. for them to proceed with this motion would be a contempt of the united states circuit court. the arrival of justice field should have instructed judge terry that the decree of that court could not be defied with impunity, and that the injunction issued in it against further proceedings upon the judgment in the state court would be enforced with all the power authorized by the constitution and laws of the united states for the enforcement of judicial process. as the 15th of july approached, the lawyers who had been associated with terry commenced discussing among themselves what would be the probable consequence to them of disobeying an injunction of the united states circuit court. the attorneys for the sharon estate made known their determination to apply to that court for the enforcement of its writ in their behalf. the terrys' experience in resisting the authority of that court served as a warning for their attorneys. on the morning of the 15th of july judge terry and his wife appeared, as usual, in the superior court room. two of their lawyers came in, remained a few minutes and retired. judge terry himself remained silent. his wife arose and addressed the court, saying that her lawyers were afraid to appear for her. she said they feared if they should make a motion in her behalf, for the appointment of a receiver, judge field would put them in jail; therefore, she said, she appeared for herself. she said if she got in jail she would rather have her husband outside, and this was why she made the motion herself, while he remained a spectator. the hearing was postponed for several days. before the appointed day therefor, the supreme court of the state, on the 17th of july, rendered its decision, reversing the order of judge sullivan refusing a new trial, thereby obliterating the judgment in favor of sarah althea, and the previous decision of the appellate court affirming it. the court held that this previous judgment had not become the law of the case pending the appeal from the order denying a new trial. it held that where two appeals are taken in the same case, one from the judgment and the other from the order denying a new trial, the whole case must be held to be under the control of the supreme court until the whole is disposed of, and the case remanded for further proceedings in the court below. the court reversed its previous decision, and declared that if the statements made by sarah althea and by her witnesses had been true, she never had been the wife of william sharon, for the reason that, after the date of the alleged contract of marriage, the parties held themselves out to the public as single and unmarried people, and that even according to the findings of fact by judge sullivan the parties had not assumed marital rights, duties, and obligations. the case was therefore remanded to the superior court for a new trial. on the 2d of august the demurrers to the several indictments against the terrys came up to be heard in the united states district court. the argument upon them concluded on the 5th. on the 7th the demurrer to one of the indictments against sarah althea was overruled and she entered a plea of not guilty. no decision was rendered at that time upon either of the five other indictments. on the following day, august 8th, justice field left san francisco and went to los angeles for the purpose of holding court. chapter xiii. attempted assassination of justice field, resulting in terry's own death at the hands of a deputy united states marshal. in view of what was so soon to occur, it is important to understand the condition of mind into which judge terry and his wife had now wrought themselves. they had been married about two years and a half. in their desperate struggle for a share of a rich man's estate they had made themselves the terror of the community. armed at all times and ready for mortal combat with whoever opposed their claims, they seemed, up to the 17th of july, to have won their way in the state courts by intimidation. the decision of the united states circuit court was rendered before they were married. it proclaimed the pretended marriage agreement a forgery, and ordered it to be delivered to the clerk of the court for cancellation. terry's marriage with sarah althea, twelve days after this, was a declaration of intention to resist its authority. the conduct of the pair in the circuit court on the 3d of september must have had some object. they may have thought to break up the session of the court for that day, and to so intimidate the judges that they would not carry out their purpose of rendering the decision; or they may have hoped that, if rendered, it would be allowed to slumber without any attempt to enforce it; or even that a rehearing might be granted, and a favorable decision forced from the court. it takes a brave man on the bench to stand firmly for his convictions in the face of such tactics as were adopted by the terrys. the scene was expected also to have its effect upon the minds of the judges of the supreme court of the state, who then were yet to pass finally upon sullivan's judgment on the appeal from the order denying a new trial. but the terrys had not looked sufficiently at the possible consequence of their actions. they had thus far gone unresisted. as district attorney carey wrote to the attorney-general: "they were unable to appreciate that an officer should perform his official duty when that duty in any way requires that his efforts be directed against them." when, therefore, justice field directed the removal of mrs. terry from the court, and when her doughty defendant and champion, confident of being able to defeat the order, found himself vanquished in the encounter, disarmed, arrested, and finally imprisoned, his rage was boundless. he had found a tribunal which cared nothing for his threats, and was able to overcome his violence. a court that would put him in the alameda jail for six months for resisting its order would enforce all its decrees with equal certainty. from the time of the terrys' incarceration in the alameda county jail their threats against justice field became a matter of such notoriety that the drift of discussion was not so much whether they would murder the justice, as to when and under what circumstances they would be likely to do so. there is little doubt that terry made many threats for the express purpose of having them reach the knowledge of judge field at washington, in the hope and belief that they would deter him from going to california. he probably thought that the judge would prefer to avoid a violent conflict, and that if his absence could be assured it might result in allowing the decree of the united states circuit court to remain a dead letter. he told many people that justice field would not dare come out to the pacific coast. he got the idea into his mind, or pretended to, that justice field had put him in jail in order to be able to leave for washington before a meeting could be had with him. terry would of course have preferred field's absence and a successful execution of sullivan's judgment to his presence in the state and the enforcement of the federal decree. when the announcement was made that justice field had left washington for san francisco, public and private discussions were actively engaged in, as to where he would be likely to encounter danger. a special deputy was sent by the marshal to meet the overland train on which he was travelling, at reno, in nevada. the methods of mrs. terry defied all calculations. she was as likely to make her appearance, with her burly husband as an escort, at the state line, as she finally did at the breakfast table at lathrop. justice field reached his quarters in san francisco on the 20th of june. from that day until the 14th of august public discussion of what the terrys would do continued. some of the newspapers seemed bent upon provoking a conflict, and inquired with devilish mischief when terry was going to carry out his threatened purpose. the threats of the terrys and the rumors of their intended assault upon justice field were reported to him and he was advised to go armed against such assault, which would be aimed against his life. he answered: "no, sir! i will not carry arms, for when it is known that the judges of our courts are compelled to arm themselves against assaults in consequence of their judicial action it will be time to dissolve the courts, consider government a failure, and let society lapse into barbarism." as the time approached for the hearing of the motion for a receiver before judge sullivan, july 15th, grave apprehensions were entertained of serious trouble. great impatience was expressed with the supreme court of the state for not rendering its decision upon the appeal from the order denying a new trial. it was hoped that the previous decision might be reversed, and a conflict between the two jurisdictions thus avoided. when the decision came, on the 17th of july, there seemed to be some relaxation of the great tension in the public mind. with the supreme court of the state, as well as the supreme court of the united states, squarely on the record against mrs. terry's pretensions to have been the wife of william sharon, it was hoped that the long war had ended. when justice field left san francisco for los angeles he had no apprehensions of danger, and strenuously objected to being accompanied by the deputy marshal. some of his friends were less confident. they realized better than he did the bitterness that dwelt in the hearts of terry and his wife, intensified as it was by the realization of the dismal fact that their last hope had expired with the decision of the supreme court of the state. the marshal was impressed with the danger that would attend justice field's journey to and from the court at los angeles. he went from san francisco on the 8th of august. after holding court in los angeles he took the train for san francisco august 13th, the deputy marshal occupying a section in the sleeping car directly opposite to his. judge terry and his wife left san francisco for their home in fresno the day following justice field's departure for los angeles. fresno is a station on the southern pacific between los angeles and san francisco. his train left los angeles for san francisco at 1:30 tuesday afternoon, august 13th. the deputy marshal got out at all the stations at which any stop was made for any length of time, to observe who got on board. before retiring he asked the porter of the car to be sure and wake him in time for him to get dressed before they reached fresno. at fresno, where they arrived during the night, he got off the train and went out on the platform. among the passengers who took the train at that station were judge terry and wife. he immediately returned to the sleeper and informed justice field, who had been awakened by the stopping of the train, that terry and his wife had got on the train. he replied: "very well. i hope that they will have a good sleep." neagle slept no more that night. the train reached merced, an intervening station between fresno and lathrop, at 5:30 that morning. neagle there conferred with the conductor, on the platform, and referred to the threats so often made by the terrys. he told him that justice field was on the train, and that he was accompanying him. he requested him to telegraph to lathrop, to the constable usually in attendance there, to be at hand, and that if any trouble occurred he would assist in preventing violence. justice field got up before the train reached lathrop, and told the deputy marshal that he was going to take his breakfast in the dining-room at that place. the following is his statement of what took place: "he said to me, 'judge, you can get a good breakfast at the buffet on board.' i did not think at the time what he was driving at, though i am now satisfied that he wanted me to take breakfast on the car and not get off. i said i prefer to have my breakfast at this station. i think i said i had come down from the yosemite valley a few days before, and got a good breakfast there, and was going there for that purpose. "he replied: 'i will go with you.' we were among the first to get off from the train." as soon as the train arrived, justice field, leaning on the arm of neagle, because of his lameness, proceeded to the dining-room, where they took seats for breakfast. there were in this dining-room fifteen tables, each one of which was ten feet long and four feet wide. they were arranged in three rows of five each, the tables running lengthwise with each other, with spaces between them of four feet. the aisles between the two rows were about seven feet apart, the rows running north and south. justice field and neagle were seated on the west side of the middle table in the middle row, the justice being nearer the lower corner of the table, and neagle at his left. very soon after--justice field says "a few minutes," while neagle says "it may be a minute or so"--judge terry and his wife entered the dining-room from the east. they walked up the aisle, between the east and middle rows of tables, so that justice field and neagle were faced towards them. judge terry preceded his wife. justice field saw them and called neagle's attention to them. he had already seen them. as soon as mrs. terry had reached a point nearly in front of justice field, she turned suddenly around, and scowling viciously, went in great haste out of the door at which she had come in. this was for the purpose, as it afterwards appeared, of getting her satchel with the pistol in it, which she had left in the car. judge terry apparently paid no attention to this movement, but proceeded to the next table above and seated himself at the upper end of it, facing the table at which justice field was seated. thus there were between the two men as they sat at the tables a distance equal to two table-lengths and one space of four feet, making about twenty-four feet. terry had been seated but a very short time--justice field thought it a moment or two, neagle thought it three or four minutes--when he arose and moved down towards the door, this time walking through the aisle _behind_ justice field, instead of the one in front of him as before. justice field supposed, when he arose, that he was going out to meet his wife, as she had not returned, and went on with his breakfast; but when terry had reached a point behind him, and a little to the right, within two or three feet of him, he halted. justice field was not aware of this, nor did he know that terry had stopped, until he was struck by him a violent blow in the face from behind, followed instantaneously by another blow at the back of his head. neagle had seen terry stop and turn. between this and terry's assault there was a pause of four or five seconds. instantaneously upon terry's dealing a blow, neagle leaped from his chair and interposed his diminutive form between justice field and the enraged and powerful man, who now sought to execute his long-announced and murderous purpose. terry gave justice field no warning of his presence except a blow from behind with his right hand. as neagle rose, he shouted: "stop, stop, i am an officer." judge terry had drawn back his right arm for a third blow at justice field, and with clinched fist was about to strike, when his attention was thus arrested by neagle, and looking at him he evidently recognized in him the man who had drawn the knife from his hand in the corridor before the marshal's office on the third of september of the preceding year, while he was attempting to cut his way into the marshal's office. neagle put his right hand up as he ordered terry to stop, when terry carried his right hand at once to his breast, evidently to seize the knife which he had told the alameda county jailer he "always carried." says neagle: "this hand came right to his breast. it went a good deal quicker than i can explain it. he continued looking at me in a desperate manner and his hand got there." the expression of terry's face at that time was described by neagle in these words: "the most desperate expression that i ever saw on a man's face, and i have seen a good many in my time. it meant life or death to me or him." having thus for a moment diverted the blow aimed at justice field and engaged terry himself, neagle did not wait to be butchered with the latter's ready knife, which he was now attempting to draw, but raised his six-shooter with his left hand (he is left-handed) and holding the barrel of it with his right hand, to prevent the pistol from being knocked out of his hands, he shot twice; the first shot into terry's body and the second at his head. terry immediately commenced sinking very slowly. knowing by experience that men mortally wounded have been often known to kill those with whom they were engaged in such an encounter, neagle fired the second shot to defend himself and justice field against such a possibility. the following is an extract from justice field's testimony, commencing at the point where judge terry rose from his seat at the breakfast table: "i supposed, at the time, he was going out to meet his wife, as she had not returned, so i went on with my breakfast. it seems, however, that he came around back of me. i did not see him, and he struck me a violent blow in the face, followed instantaneously by another blow. coming so immediately together, the two blows seemed like one assault. i heard 'stop, stop,' cried by neagle. of course i was for a moment dazed by the blows. i turned my head around and saw that great form of terry's with his arm raised and fist clinched to strike me. i felt that a terrific blow was coming, and his arm was descending in a curved way as though to strike the side of my temple, when i heard neagle cry out: 'stop, stop, i am an officer.' instantly two shots followed. i can only explain the second shot from the fact that he did not fall instantly. i did not get up from my seat, although it is proper for me to say that a friend of mine thinks i did, but i did not. i looked around and saw terry on the floor. i looked at him and saw that particular movement of the eyes that indicates the presence of death. of course it was a great shock to me. it is impossible for any one to see a man in the full vigor of life, with all those faculties that constitute life instantly extinguished without being affected, and i was. i looked at him for a moment, then went around and looked at him again, and passed on. great excitement followed. a gentleman came to me, whom i did not know, but i think it was mr. lidgerwood, who has been examined as a witness in this case, and said: 'what is this?' i said: 'i am a justice of the supreme court of the united states. my name is judge field. judge terry threatened my life and attacked me, and the deputy marshal has shot him.' the deputy marshal was perfectly cool and collected, and stated: 'i am a deputy marshal, and i have shot him to protect the life of judge field.' i cannot give you the exact words, but i give them to you as near as i can remember them. a few moments afterwards the deputy marshal said to me: 'judge, i think you had better go to the car.' i said, 'very well.' then this gentleman, mr. lidgerwood, said: 'i think you had better.' and with the two i went to the car. i asked mr. lidgerwood to go back and get my hat and cane, which he did. the marshal went with me, remained some time, and then left his seat in the car, and, as i thought, went back to the dining-room. (this is, however, i am told, a mistake, and that he only went to the end of the car.) he returned, and either he or some one else stated that there was great excitement; that mrs. terry was calling for some violent proceedings. i must say here that, dreadful as it is to take life, it was only a question of seconds whether my life or judge terry's life should be taken. i am firmly convinced that had the marshal delayed two seconds both he and myself would have been the victims of terry. "in answer to a question whether he had a pistol or other weapon on the occasion of the homicide, justice field replied: 'no, sir. i have never had on my person or used a weapon since i went on the bench of the supreme court of this state, on the 13th of october, 1857, except once, when, years ago, i rode over the sierra nevada mountains in a buggy with general hutchinson, and at that time i took a pistol with me for protection in the mountains. with that exception, i have not had on my person, or used, any pistol or other deadly weapon.'" judge terry had fallen very near the place where he first stopped, near the seat occupied by justice field at the table. neagle testified that if justice field had had a weapon, and been active in using it, he was at such a disadvantage, seated as he was, with terry standing over him, that he would have been unable to raise his hand in his own defense. a large number of witnesses were examined, all of whom agreed upon the main facts as above stated. some of them distinctly heard the blows administered by terry upon justice field's face and head. all testified to the loud warning given terry by neagle that he was an officer of the law, accompanied by his command that terry should desist. it was all the work of a few seconds. terry's sudden attack, the quick progress of which, from the first blow, was neither arrested nor slackened until he was disabled by the bullet from neagle's pistol, could have been dealt with in no other way. it was evidently a question of the instant whether terry's knife or neagle's pistol should prevail. says neagle: "he never took his eyes off me after he looked at me, or i mine off him. i did not hear him say anything. the only thing was he looked like an infuriated giant to me. i believed if i waited two seconds i should have been cut to pieces. i was within four feet of him." q. "what did the motion that judge terry made with his right hand indicate to you?" a. "that he would have had that knife out there within another second and a half, and trying to cut my head off." terry, in action at such a time, from all accounts, was more like an enraged wild animal than a human being. the supreme moment had arrived to which he had been looking forward for nearly a year, when the life of the man he hated was in his hands. he had repeatedly sworn to take it. not privately had he made these threats. with an insolence and an audacity born of lawlessness and of a belief that he could hew his way with a bowie-knife in courts as well as on the streets, he had publicly sentenced judge field to death as a penalty for vindicating the majesty of the law in his imprisonment for contempt. it would have been the wildest folly that can be conceived of for the murderous assault of such a man to have been met with mild persuasion, or an attempt to arrest him. as well order a hungry tiger to desist from springing at his prey, to sheathe his outstretched claws and suffer himself to be bound, as to have met terry with anything less than the force to which he was himself appealing. every man who knows anything of the mode of life and of quarrelling and fighting among the men of terry's class knows full well that when they strike a blow they mean to follow it up to the death, and they mean to take no chances. the only way to prevent the execution of terry's revengeful and openly avowed purpose was by killing him on the spot. only a lunatic or an imbecile or an accomplice would have pursued any other course in neagle's place than the one he pursued, always supposing he had neagle's nerve and cool self-possession to guide him in such a crisis. while this tragedy was being enacted mrs. terry was absent, having returned to the car for the satchel containing her pistol. before she returned, the shot had been fired that defeated the conspiracy between her and her husband against the life of a judge for the performance of his official duties. she returned to the hotel with her satchel in her hand just as her husband met his death. the manager of the hotel stopped her at the door she was entering, and seized her satchel. she did not relinquish it, but both struggled for its possession. a witness testified that she screamed out while so struggling: "let me get at it; i will fix him." many witnesses testified to her frantic endeavor to get the pistol. she called upon the crowd to hang the man that killed judge terry, and cried out, "lynch judge field." again and again she made frantic appeals to those present to lynch judge field. she tried to enter the car where he was, but was not permitted to do so. she cried out, "if i had my pistol i would fix him." the testimony subsequently taken left no room to doubt that terry had his deadly knife in its place in his breast at the time he made the attack on justice field. as the crowd were all engaged in breakfasting, his movements attracted little attention, and his motion toward his breast for the knife escaped the notice of all but neagle and one other witness. neagle rushed between terry and justice field, and the latter had not a complete view of his assailant at the moment when the blow intended for him was changed into a movement for the knife with which judge terry intended to dispose of the alert little man, with whom he had had a former experience, and who now stood between him and the object of his greater wrath. but the conduct of mrs. terry immediately after the homicide was proof enough that her husband's knife had been in readiness. the conductor of the train swore that he saw her lying over the body of her husband about a minute, and when she rose up she unbuttoned his vest and said: "you may search him; he has got no weapon on him." not a word had been said about his having had a weapon. no one had made a movement towards searching him, as ought to have been done; but this woman, who had been to the car for her pistol and returned with it to join, if necessary, in the murderous work, had all the time and opportunity necessary for taking the knife from its resting-place under his vest, smearing one of her hands with his blood, which plainly showed where it had been and what she had been doing. neagle could not search the body, for his whole attention was directed to the protection of justice field. mrs. terry repeated the challenge to search the body for the knife after it had been removed. this showed clearly that the idea uppermost in her mind was to then and there manufacture testimony that he had not been armed at all. her eagerness on this subject betrayed her. had she herself then been searched, after rising from terry's body, the knife would doubtless have been found concealed upon her person. a number of witnesses testified to her conduct as above described. she said also: "you will find that he has no arms, for i took them from him in the car, and i said to him that i did not want him to shoot justice field, but i did not object to a fist bout." this reference to a fist bout was, of course, an admission that they had premeditated the assault. it was judge terry's knife and not a pistol that judge field had to fear. terry's threats had always pointed to some gross indignity that he would put upon justice field, and then kill him if he resented or resisted it. one of his threats was that he would horsewhip judge field, and that if he resented it he would kill him. in short, his intentions seem to have been to commit an assassination in alleged self-defense. the train soon left the station for san francisco. a constable of lathrop had taken the train, and addressing neagle told him that he would have to arrest him. this officer had no warrant and did not himself witness the homicide. justice field told him that he ought to have a warrant before making the arrest, remarking, if a man should shoot another when he was about to commit a felony, such as setting fire to your house, you would not arrest him for a murder; or if a highwayman got on the train to plunder. the officer replied very courteously by the suggestion that there would have to be an inquest. neagle at once said, "i am ready to go," thinking it better to avoid all controversy, and being perfectly willing to answer anywhere for what he had done. arriving at the next station (tracy), neagle and the officer took a buggy and went to the county jail at stockton. thus was a deputy marshal of the united states withdrawn from the service of his government while engaged in a most important and as yet unfinished duty because he had with rigid faithfulness performed that duty. he was arrested by an officer who had no warrant and had not witnessed the homicide, and lodged in jail. meanwhile a detective in san francisco received a telegram from the sheriff of san joaquin county to arrest judge field. supposing it to be his duty to comply with this command, the detective crossed the bay to meet the train for that purpose. marshal franks said to him: "you shall not arrest him. you have no right to do so. it would be an outrage, and if you attempt it i will arrest you." the news of these exciting events produced an intense excitement in san francisco. upon his arrival at this place, under the escort of the marshal and many friends, justice field repaired to his quarters in the palace hotel. chapter xiv. sarah althea terry charges justice field and deputy marshal neagle with murder. the body of judge terry was taken from lathrop to stockton, accompanied by his wife, soon after his death. on that very evening sarah althea terry swore to a complaint before a justice of the peace named swain, charging justice field and deputy marshal neagle with murder. after the investigation before the coroner assistant district attorney gibson stated that the charge against justice field would be dismissed, as there was no evidence whatever to connect him with the killing. mrs. terry did not see the shooting and was not in the hotel at the time of the homicide. having, therefore, no knowledge upon which to base her statement, her affidavit was entitled to no greater consideration than if it had stated that it was made solely upon her belief without any positive information on the subject. only the most violent of terry's friends favored the wanton indignity upon justice field, and his arrest, but they had sufficient influence with the district attorney, mr. white, a young and inexperienced lawyer, to carry him along with them. the justice of the peace before whom sarah althea had laid the information issued a warrant on the following day for the arrest both of justice field and neagle. from this time this magistrate and the district attorney appeared to act under orders from mrs. terry. the preliminary examination was set for wednesday of the following week, during which time the district attorney stated for publication that justice field would have to go to jail and stay there during the six intervening days. it was obvious to all rational minds that mrs. terry's purpose was to use the machinery of the magistrate's court for the purpose of taking judge field to stockton, where she could execute her threats of killing him or having him killed; and if she should fail to do so, or postpone it, then to have the satisfaction of placing a justice of the supreme court of the united states in a prisoner's cell, and hold him there for six days awaiting an examination, that being the extreme length of time that he could be so held under the statute. the district attorney was asked if he had realized the danger of bringing justice field to stockton, where he might come in contact with mrs. terry. the officer replied: "we had intended that if justice field were brought here, mrs. terry would be placed under the care of _her friends_, and that all precautions to prevent any difficulty that was in the power of the district attorney would be taken." that was to say, mrs. terry would do no violence to justice field unless "her friends" permitted her to do so. as some of them were possessed of the same murderous feelings towards justice field as those named here, the whole transaction had the appearance of a conspiracy to murder him. no magistrate can lawfully issue a warrant without sufficient evidence before him to show probable cause. it was a gross abuse of power and an arbitrary and lawless act to heed the oath of this frenzied woman, who notoriously had not witnessed the shooting, and had, but a few hours before, angrily insisted upon having her own pistol returned to her that she, herself, might kill justice field. it was beyond belief that the magistrate believed that there was probable cause, or the slightest appearance of a cause, upon which to base the issue of the warrant. neagle was brought into court at stockton at 10 o'clock on the morning after the shooting, to wit, on thursday, the 15th, and his preliminary examination set for wednesday, the 21st. bail could not be given prior to that examination. this examination could have proceeded at once, and a delay of six days can only be accounted for by attributing it to the malice and vindictiveness of the woman who seemed to be in charge of the proceedings. the keen disappointment of mrs. terry, and those who were under her influence, at judge terry's failure to murder justice field, must have been greatly soothed by the prospect of having yet another chance at the latter's life, and, in any event, of seeing him in a cell in the jail during the six days for which the examination could be delayed for that express purpose. the sheriff of san joaquin county proceeded to san francisco with the warrant for his arrest on thursday evening. in company with the chief of police and marshal franks, he called upon justice field, and after a few moments' conversation it was arranged that he should present the warrant at one o'clock on the following day, at the building in which the federal courts are held. chapter xv. justice field's arrest and petition fob release on habeas corpus. at the appointed hour justice field awaited the sheriff in his chambers, surrounded by friends, including judges, ex-judges, and members of the bar. as the sheriff entered justice field arose and pleasantly greeted him. the sheriff bore himself with dignity, and with a due sense of the extraordinary proceeding in which his duty as an officer required him to be a participant. with some agitation he said: "justice field, i presume you are aware of the nature of my errand." "yes," replied the justice, "proceed with your duty; i am ready. an officer should always do his duty." the sheriff stated to him that he had a warrant, duly executed and authenticated, and asked him if he should read it. "i will waive that, mr. sheriff," replied the justice. the sheriff then handed him the warrant, which he read, folded it up and handed it back, saying pleasantly: "i recognize your authority, sir, and submit to the arrest; i am, sir, in your custody." meanwhile a petition had been prepared to be presented to judge sawyer for a writ of _habeas corpus_, returnable at once before the united states court. as soon as the arrest was made the petition was signed and presented to judge sawyer, who ordered the writ to issue returnable forthwith. in a very few minutes u.s. marshal franks served the writ on the sheriff. while the proceedings looking to the issue of the writ were going on, justice field had seated himself, and invited the sheriff to be seated. the latter complied with the invitation, and began to say something in regard to the unpleasant duty which had devolved upon him, but justice field promptly replied: "not so, not so; you are but doing your plain duty, and i mine in submitting to arrest. it is the first duty of judges to obey the law." as soon as the _habeas corpus_ writ had been served, the sheriff said he was ready to go into the court. "let me walk with you," said justice field, as they arose, and took the sheriff's arm. in that way they entered the court-room. justice field seated himself in one of the chairs usually occupied by jurors. time was given to the sheriff to make a formal return to the writ; and in a few minutes he formally presented it. the petition of judge field for the writ set forth his official character, and the duties imposed upon him by law, and alleged that he had been illegally arrested, while he was in the discharge of those duties, and that his illegal detention interfered with and prevented him from discharging them. then followed a statement of the facts, showing the arrest and detention to be illegal. this statement embraced the principal facts connected with the contempt proceedings in 1888, and the threats then and thereafter made by the terrys of violence upon justice field; the precautions taken in consequence thereof by the department of justice for his protection from violence at their hands, and the murderous assault made upon him, and his defense by deputy marshal neagle, resulting in the death of terry, and that he, the petitioner, in no manner defended or protected himself, and gave no directions to the deputy marshal, and that he was not armed with any weapon. the petition then states: "that under the circumstances detailed, the said sarah althea terry, as your petitioner is informed and believes, and upon such information and belief alleges, falsely and maliciously swore out the warrant of arrest hereinbefore set out against your petitioner, without any further basis for the charge of murder than the facts hereinbefore detailed, and that the warrant aforesaid was issued by such justice of the peace, without any just or probable cause therefor. * * * and your petitioner further represents that the charge against him, and the warrant of arrest in the hands of said sheriff, are founded upon the sole affidavit of mrs. sarah althea terry, who was not present and did not see the shooting which caused the death of said david s. terry." in order to show the little reliance to be placed in the oath of mrs. terry, the petition stated: "that in a suit brought by william sharon, now deceased, against her before her marriage to the said terry, it was proved and held by the circuit court of the united states that she had committed the forgery of the document produced in that case, and had attempted to support it by perjury and subornation of perjury, and had also been guilty of acts and conduct showing herself to be an abandoned woman, without veracity. * * * "your petitioner further represents that the abandoned character of the said sarah althea terry, and the fact that she was found guilty of perjury and forgery in the case above mentioned by the said circuit court, and the fact of the revengeful malice entertained toward your petitioner by said sarah althea terry, are notorious in the state of california, and are notorious in the city of stockton, and as your petitioner believes are well known to the district attorney of the said county of san joaquin, and also to the said justice of the peace who issued the said warrant; and your petitioner further alleges that had either of the said officers taken any pains whatever to ascertain the truth in the case, he would have ascertained and known that there was not the slightest pretext or foundation for any such charge as was made, and also that the affidavit of the said sarah althea terry was not entitled to the slightest consideration whatever. "your petitioner further states that it is to him incomprehensible how any man, acting in a consideration of duty, could have listened one moment to charges from such a source, and without having sought some confirmation from disinterested witnesses; and your petitioner believes and charges that the whole object of the proceeding is to subject your petitioner to the humiliation of arrest and confinement at stockton, where the said sarah althea terry may be able, by the aid of partisans of hers, to carry out her long-continued and repeated threats of personal violence upon your petitioner, and to prevent your petitioner from discharging the duties of his office in cases pending against her in the federal court at san francisco." the sheriff's return was as follows: "return of sheriff of san joaquin county, cala., county of san joaquin, state of california: "sheriff's office. "_to the honorable circuit court of the united states for the northern district of california:_ "i hereby certify and return that before the coming to me of the hereto-annexed writ of _habeas corpus_, the said stephen j. field was committed to my custody, and is detained by me by virtue of a warrant issued out of the justice's court of stockton township, state of california, county of san joaquin, and by the endorsement made upon said warrant. copy of said warrant and endorsement is annexed hereto, and made a part of this return. nevertheless, i have the body of the said stephen j. field before the honorable court, as i am in the said writ commanded. "august 16, 1889. "thomas cunningham, "_sheriff, san joaquin co., california_." in order to give the petitioner time to traverse the return if he thought it expedient to do so, and to give him and the state time to produce witnesses, the further hearing upon the return was adjourned until the following thursday morning, the 22d, and the petitioner was released on his recognizance with a bond fixed at $5,000. on the same day a petition on the part of neagle was presented to judge sawyer asking that a writ of _habeas corpus_ issue in his behalf to sheriff cunningham. the petition was granted at once, and served upon the sheriff immediately after the service of the writ issued on behalf of justice field. early on the morning of saturday, august 17, neagle was brought from stockton by the sheriff at 4:30 a.m. district attorney white and mrs. terry's lawyer, maguire, were duly notified of this movement and were passengers on the same train. at 10:30 sheriff cunningham appeared in the circuit court with neagle to respond to the writ. he returned that he held neagle in custody, under a warrant issued by a justice of the peace of that county, a copy of which he produced; and also a copy of the affidavit of sarah althea terry upon which the warrant was issued. a traverse to that return was then filed, presenting various grounds why the petitioner should not be held, the most important of which were that an officer of the united states, specially charged with a particular duty, that of protecting one of the justices of the supreme court of the united states whilst engaged in the performance of his duty, could not, for an act constituting the very performance of that duty, be taken from the further discharge of his duty and imprisoned by the state authorities, and that when an officer of the united states in the discharge of his duties is charged with an offense consisting in the performance of those duties, and is sought to be arrested, and taken from the further performance of them, he can be brought before the tribunals of the nation of which he is an officer, and the fact then inquired into. the attorney-general of the state appeared with the district attorney of san joaquin county, and contended that the offense of which the petitioner was charged could only be inquired into before the tribunals of the state. chapter xvi. judge terry's funeral--refusal of the supreme court of california to adjourn on the occasion. the funeral of judge terry occurred on friday, the 16th. an unsuccessful attempt was made for a public demonstration. the fear entertained by some that eulogies of an incendiary character would be delivered was not realized. the funeral passed off without excitement. the rector being absent, the funeral service was read by a vestryman of the church. on the day after judge terry's death the following proceedings occurred in the supreme court of the state: late in the afternoon, just after the counsel in a certain action had concluded their argument, and before the next cause on the calendar was called, james l. crittenden, esq., who was accompanied by w.t. baggett, esq., arose to address the court. he said: "your honors, it has become my painful and sad duty to formally announce to the court the death of a former chief justice"-chief justice beatty: "mr. crittenden, i think that is a matter which should be postponed until the court has had a consultation about it." the court then, without leaving the bench, held a whispered consultation. mr. crittenden then went on to say: "i was doing this at the request of several friends of the deceased. it has been customary for the court to take formal action prior to the funeral. in this instance, i understand the funeral is to take place to-morrow." chief justice beatty: "mr. crittenden, the members of the court wish to consult with each other on this matter, and you had better postpone your motion of formal announcement until to-morrow morning." mr. crittenden and mr. baggett then withdrew from the court-room. on the following day, in the presence of a large assembly, including an unusually large attendance of attorneys, mr. crittenden renewed his motion. he said: "if the court please, i desire to renew the matter which i began to present last evening. as a friend--a personal friend--of the late judge terry, i should deem myself very cold, indeed, and very far from discharging the duty which is imposed upon that relation, if i did not present the matter which i propose to present to this bench this morning. i have known the gentleman to whom i have reference for over thirty years, and i desire simply now, in stating that i make this motion, to say that the friendship of so many years, and the acquaintance and intimacy existing between that gentleman and his family and myself for so long a period, require that i should at this time move this court, as a court, out of recollection for the memory of the man who presided in the supreme court of this state for so many years with honor, ability, character, and integrity, and, therefore, i ask this court, out of respect for his memory, to adjourn during the day on which he is to be buried, which is to-day." chief justice beatty said: "i regret very much that counsel should have persisted in making this formal announcement, after the intimation from the court. upon full consultation we thought it would be better that it should not be done. the circumstances of judge terry's death are notorious, and under these circumstances this court had determined that it would be better to pass this matter in silence, and not to take any action upon it; and that is the order of the court." the deceased had been a chief justice of the tribunal which, by its silence, thus emphasized its condemnation of the conduct by which he had placed himself without the pale of its respect. chapter xvii. habeas corpus proceedings in justice field's case. on thursday, august 22d, the hearing of the _habeas corpus_ case of justice field commenced in the united states circuit court, under orders from the attorney-general, to whom a report of the whole matter had been telegraphed. the united states district attorney appeared on behalf of justice field. in addition to him there also appeared as counsel for justice field, hon. richard t. mesick, saml. m. wilson, esq., and w.f. herrin, esq. the formal return of the writ of _habeas corpus_ had been made by the sheriff of san joaquin county on the 16th. to that return justice field presented a traverse, which was in the following language, and was signed and sworn to by him: "the petitioner, stephen j. field, traverses the return of the sheriff of san joaquin county, state of california, made by him to the writ of _habeas corpus_ by the circuit judge on the ninth circuit, and made returnable before the circuit court of said circuit, and avers: "that he is a justice of the supreme court of the united states, allotted to the ninth judicial circuit, and is now and has been for several weeks in california, in attendance upon the circuit court of said circuit in the discharge of his judicial duties; and, further, that the said warrant of the justice of the peace, h.v.j. swain, in stockton, california, issued on the 14th day of august, 1889, under which the petitioner is held, was issued by said justice of the peace without reasonable or probable cause, upon the sole affidavit of one sarah althea terry, who did not see the commission of the act which she charges to have been a murder, and who is herself a woman of abandoned character, and utterly unworthy of belief respecting any matter whatever; and, further, that the said warrant was issued in the execution of a conspiracy, as your petitioner is informed, believes, and charges, between the said sarah althea terry and the district attorney, white, and the said justice of the peace, h.v.j. swain, and one e.l. colnon, of said stockton, to prevent by force and intimidation your petitioner from discharging the duties of his office hereafter, and to injure him in his person on account of the lawful discharge of the duties of his office heretofore, by taking him to stockton, where he could be subjected to indignities and humiliation, and where they might compass his death. "that the said conspiracy is a crime against the united states, under the laws thereof, and was to be executed by an abuse of the process of the state court, two of said conspirators being officers of the said county of san joaquin, one the district attorney and the other a justice of the peace, the one to direct and the other to issue the warrant upon which your petitioner could be arrested. "and the petitioner further avers that the issue of said writ of _habeas corpus_ and the discharge of your petitioner thereunder were and are essential to defeat the execution of the said conspiracy. "and your petitioner further avers that the accusation of crime against him, upon which said warrant was issued, is a malicious and malignant falsehood, for which there is not even a pretext; that he neither advised nor had any knowledge of the intention of any one to commit the act which resulted in the death of david s. terry, and that he has not carried or used any arm or weapon of any kind for nearly thirty years. "all of which your petitioner is ready to establish by full and competent proof. "wherefore your petitioner prays that he may be discharged from said arrest and set at liberty. "stephen j. field." the facts alleged in this document were beyond dispute, and constituted an outrageous crime, and one for which the conspirators were liable to imprisonment for a term of six years, under section 5518 of the revised statutes of the united states. to this traverse the counsel for the sheriff filed a demurrer, on the ground that it did not appear by it that justice field was in custody for an act done or omitted in pursuance of any law of the united states, or of any order or process or decree of any court or judge thereof, and it did not appear that he was in custody in violation of the constitution or any law or treaty of the united states. the case was thereupon submitted with leave to counsel to file briefs at any time before the 27th of august, to which time the further hearing was adjourned. before that hearing the governor of the state addressed the following communication to the attorney-general: "executive department, "state of california, "sacramento, _august 21, 1889_. "hon. a.g. johnston, "_attorney-general, sacramento_. "dear sir: the arrest of hon. stephen j. field, a justice of the supreme court of the united states, on the unsupported oath of a woman who, on the very day the oath was taken, and often before, threatened his life, will be a burning disgrace to the state unless disavowed. i therefore urge upon you the propriety of at once instructing the district attorney of san joaquin county to dismiss the unwarranted proceedings against him. "the question of the jurisdiction of the state courts in the case of the deputy united states marshal, neagle, is one for argument. the unprecedented indignity on justice field does not admit of argument. "yours truly, "r.w. waterman, "_governor_." this letter of governor waterman rang out like an alarm bell, warning the chief law officer of the state that a subordinate of his was prostituting its judicial machinery to enable a base woman to put a gross indignity upon a justice of the supreme court of the united states, whom she had just publicly threatened to kill, and also to aid her in accomplishing that purpose. the wretched proceeding had already brought upon its authors indignant denunciation and merciless ridicule from every part of the union. the attorney-general responded to the call thus made upon him by instructing the district attorney to dismiss the charge against justice field, because no evidence existed to sustain it. the rash young district attorney lost no time in extricating himself from the position in which the arrest of justice field had placed him. on the 26th of august, upon his motion, and the filing of the attorney-general's letter, the charge against justice field was dismissed by the justice of the peace who had issued the warrant against him. the dismissal of this charge released him from the sheriff's claim to his custody, and the _habeas corpus_ proceedings in his behalf fell to the ground. on the 27th, the day appointed for the further hearing, the sheriff announced that in compliance with the order of the magistrate he released justice field from custody, whereupon the case of _habeas corpus_ was dismissed. in making the order, circuit judge sawyer severely animadverted on what he deemed the shameless proceeding at stockton. he said: "we are glad that the prosecution of mr. justice field has been dismissed, founded, as it was, upon the sole, reckless, and as to him manifestly false affidavit of one whose relation to the matters leading to the tragedy, and whose animosity towards the courts and judges who have found it their duty to decide against her, and especially towards mr. justice field, is a part of the judicial and notorious public history of the country. "it was, under the circumstances, and upon the sole affidavit produced, especially after the coroner's inquest, so far as mr. justice field is concerned, a shameless proceeding, and, as intimated by the governor of the commonwealth, if it had been further persevered in, would have been a lasting disgrace to the state. "while a justice of the supreme court of the united states, like every other citizen, is amenable to the laws, he is not likely to commit so grave an offense as murder, and should he be so unfortunate as to be unavoidably involved in any way in a homicide, he could not afford to escape, if it were in his power to do so; and when the act is so publicly performed by another, as in this instance, and is observed by so many witnesses, the officers of the law should certainly have taken some little pains to ascertain the facts before proceeding to arrest so distinguished a dignitary, and to attempt to incarcerate him in prisons with felons, or to put him in a position to be further disgraced, and perhaps assaulted by one so violent as to be publicly reported, not only then but on numerous previous occasions, to have threatened his life. "we are extremely gratified to find that, through the action of the chief magistrate, and the attorney-general, a higher officer of the law, we shall be spared the necessity of further inquiring as to the extent of the remedy afforded the distinguished petitioner, by the constitution and laws of the united states, or of enforcing such remedies as exist, and that the stigma cast upon the state of california by this hasty and, to call it by no harsher term, ill-advised arrest will not be intensified by further prosecution." thus ended this most remarkable attempt upon the liberty of a united states supreme court justice, under color of state authority, the execution of which would again have placed his life in great peril. the grotesque feature of the performance was aptly presented by the following imaginary dialogue which appeared in an eastern paper: newsboy: "man tried to kill a judge in california!" customer: "what was done about it?" newsboy: "oh! they arrested the judge." the illegality of justice field's arrest will be perfectly evident to whoever will read sections 811, 812, and 813 of the penal code of california. these sections provide that no warrant can be issued by a magistrate until he has examined, on oath, the informant, taken depositions setting forth the facts tending to establish the commission of the offense and the guilt of the accused, and himself been satisfied by these depositions that there is reasonable ground that the person accused has committed the offense. none of these requirements had been met in justice field's case. it needs no lawyer to understand that a magistrate violates the plain letter as well as the spirit of these provisions of law when he issues a warrant without first having before him some evidence of the probable, or at least the possible, guilt of the accused. if this were otherwise, private malice could temporarily sit in judgment upon the object of its hatred, however blameless, and be rewarded for perjury by being allowed the use of our jails as places in which to satisfy its vengeance. such a view of the law made sarah althea the magistrate at stockton on the 14th of august, and justice swain her obsequious amanuensis. such a view of the law would enable any convict who had just served a term in the penitentiary to treat himself to the luxury of dragging to jail the judge who sentenced him, and keeping him there without bail as long as the magistrate acting for him could be induced to delay the examination. the arrest of justice field was an attempt to kidnap him for a foul purpose, and if the united states circuit judge had not released him he would have been the victim of as arbitrary and tyrannical treatment as is ever meted out in russia to the most dangerous of nihilists, to punish him for having narrowly escaped assassination by no act or effort of his own. chapter xviii. habeas corpus proceedings in neagle's case. this narrative would not be complete without a statement of the proceedings in the united states circuit court, and in the united states supreme court on appeal, in the _habeas corpus_ proceedings in the case of neagle, the deputy marshal, whose courageous devotion to his official duties had saved the life of justice field at the expense of that of his would-be assassin. we have already seen that neagle, being in the custody of the sheriff of san joaquin county, upon a charge of murder in the shooting of judge terry, had presented a petition to the united states circuit court for a writ of _habeas corpus_ to the end that he might thereby be restored to his liberty. a writ was issued, and upon its return, august 17th, the sheriff of san joaquin county produced neagle and a copy of the warrant under which he held him in custody, issued by the justice of the peace of that county, and also of the affidavit of sarah althea terry, upon which the warrant was granted. neagle being desirous of traversing the return of the sheriff, further proceedings were adjourned until the 22d of the month, and in the meantime he was placed in the custody of the united states marshal for the district. on the 22d a traverse of the return was filed by him stating the particulars of the homicide with which he was charged as narrated above, and averring that he was at the time of its commission a deputy marshal of the united states for the district, acting under the orders of his superior, and under the directions of the attorney-general of the united states in protecting the associate justice, whilst in the discharge of his duties, from the threatened assault and violence of terry, who had declared that on meeting the justice he would insult, assault, and kill him, and that the homicide with which the petitioner is charged was committed in resisting the attempted execution of these threats in the belief that terry intended at the time to kill the justice, and that but for such homicide he would have succeeded in his attempt. these particulars are stated with great fullness of detail. to this traverse, which was afterwards amended, but not in any material respect, a demurrer was interposed for the sheriff by the district attorney of san joaquin county. its material point was that it did not appear from the traverse that neagle was in the custody of the sheriff for an act done or omitted in pursuance of any law of the united states, or any order, process, or decree of any court or judge thereof, or in violation of the constitution or a treaty of the united states. the court then considered whether it should hear testimony as to the facts of the case, or proceed with the argument of the demurrer to the traverse. it decided to take the testimony, and to hear counsel when the whole case was before it, on the merits as well as on the question of jurisdiction. the testimony was then taken. it occupied several days, and brought out strongly the facts which have been already narrated, and need not here be repeated. when completed, the question of the jurisdiction of the circuit court of the united states to interfere in the matter was elaborately argued by the attorney-general of the state, and special counsel who appeared with the district attorney of san joaquin county on behalf of the state, they contending that the offense, with which the petitioner was charged, could only be inquired into before a tribunal of the state. mr. carey, united states district attorney, and messrs. herrin, mesick, and wilson, special counsel, appeared on behalf of the petitioner, and contended for the jurisdiction, and for the discharge of the petitioner upon the facts of the case. they did not pretend that any person in the state, be he high or low, might not be tried by the local authorities for a crime committed against the state, but they did contend that when the alleged crime consisted in an act which was claimed to have been done in the performance of a duty devolving upon him by a law of the united states, it was within the competency of their courts to inquire, in the first instance, whether that act thus done was in the performance of a duty devolving upon him; and if it was, that the alleged offender had not committed a crime against the state, and was entitled to be discharged. their arguments were marked by great ability and learning, and their perusal would be interesting and instructive, but space will not allow me to give even a synopsis of them. the court, in deciding the case, went into a full and elaborate consideration, not only of its jurisdiction, but of every objection on the merits presented by counsel on behalf of the state. only a brief outline can be given. the court held that it was within the competency of the president, and of the attorney-general as the head of the department of justice, representing him, to direct that measures be taken for the protection of officers of the government whilst in the discharge of their duties, and that it was specially appropriate that such protection should be given to the justices of the supreme court of the united states, whilst thus engaged in their respective circuits, and in passing to and from them; that the attorney-general, representing the president, was fully justified in giving orders to the marshal of the california district to appoint a deputy to look specially to the protection of justices field and sawyer from assault and violence threatened by terry and his wife; and that the deputy marshal, acting under instructions for their protection, was justified in any measures that were necessary for that purpose, even to taking the life of the assailant. the court recognized that the government of the united states exercised full jurisdiction, within the sphere of its powers, over the whole territory of the country, and that when any conflict arose between the state and the general government in the administration of their respective powers, the authority of the united states must prevail, for the constitution declares that it and the laws of the united states in pursuance thereof "shall be the supreme law of the land, and that the judges in every state shall be bound thereby, anything in the constitution and laws of any state to the contrary notwithstanding." the court quoted the language of the supreme court in tennessee v. davis (100 u.s. 257, 263), that "it [the general government] can act only through its officers and agents, and they must act within the states. if, when thus acting and within the scope of their authority, those officers can be arrested and brought to trial in a state court, for an alleged offense against the law of the state, yet warranted by the federal authority they possess, and if the general government is powerless to interfere at once for their protection--if their protection must be left to the action of the state court--the operations of the general government may, at any time, be arrested at the will of one of its members. the legislation of a state may be unfriendly. it may affix penalties to acts done under the immediate direction of the national government and in obedience to its laws. it may deny the authority conferred by those laws. the state court may administer not only the laws of the state, but equally federal law, in such a manner as to paralyze the operations of the government. and even if, after trial and final judgment in the state court, a case can be brought into the united states court for review, the officer is withdrawn from the discharge of his duty during the pendency of the prosecution, and the exercise of acknowledged federal power arrested. we do not think such an element of weakness is to be found in the constitution. the united states is a government with authority extending over the whole territory of the union, acting upon the states and upon the people of the states. while it is limited in the number of its powers, so far as its sovereignty extends, it is supreme. no state government can exclude it from the exercise of any authority conferred upon it by the constitution, obstruct its authorized officers against its will, or withhold from it, for a moment, the cognizance of any subject which that instrument has committed to it." to this strong language the circuit court added: "the very idea of a government composed of executive, legislative, and judicial departments necessarily comprehends the power to do all things, through its appropriate officers and agents, within the scope of its general governmental purposes and powers, requisite to preserve its existence, protect it and its ministers, and give it complete efficiency in all its parts. it necessarily and inherently includes power in its executive department to enforce the laws, keep the national peace with regard to its officers while in the line of their duty, and protect by its all-powerful arm all the other departments and the officers and instrumentalities necessary to their efficiency while engaged in the discharge of their duties." in language attributed to mr. ex-secretary bayard, used with reference to this very case, which we quote, not as a controlling judicial authority, but for its intrinsic, sound, common sense, "the robust and essential principle must be recognized and proclaimed, that the inherent powers of every government which is sufficient to authorize and enforce the judgment of its courts are, equally, and at all times, and in all places, sufficient to protect the individual judge who, fearlessly and conscientiously in the discharge of his duty, pronounces those judgments." in reference to the duties of the president and the powers of the attorney-general under him, and of the latter's control of the marshals of the united states, the court observed that the duties of the president are prescribed in terse and comprehensive language in section 3 of article ii of the constitution, which declares that "he shall take care that the laws be faithfully executed;" that this gives him all the authority necessary to accomplish the purposes intended--all the authority necessarily inherent in the office, not otherwise limited, and that congress, added the court, in pursuance of powers vested in it, has provided for seven departments, as subordinate to the president, to aid him in performing his executive functions. section 346, r.s., provides that "there shall be at the seat of government an executive department to be known as the department of justice, and an attorney-general, who shall be the head thereof." he thus has the general supervision of the executive branch of the national judiciary, and section 362 provides, as a portion of his powers and duties, that he "shall exercise general superintendence and direction over the attorneys and marshals of all the districts in the united states and the territories as to the manner of discharging their respective duties; and the several district attorneys and marshals are required to report to the attorney-general an account of their official proceedings, and of the state and condition of their respective offices, in such time and manner as the attorney-general may direct." section 788, r.s., provides that "the marshals and their deputies shall have, in each state, the same powers in executing the laws of the united states as the sheriffs and their deputies in such state may have, by law, in executing the laws thereof." by section 817 of the penal code of california the sheriff is a "peace officer," and by section 4176 of the political code he is "to preserve the peace" and "prevent and suppress breaches of the peace." the marshal is, therefore, under the provisions of the statute cited, "a peace officer," so far as keeping the peace in any matter wherein the powers of the united states are concerned, and as to such matters he has all the powers of the sheriff, as peace officer under the laws of the state. he is, in such matters, "to preserve the peace" and "prevent and suppress breaches of the peace." an assault upon or an assassination of a judge of a united states court while engaged in any matter pertaining to his official duties, on account or by reason of his judicial decisions, or action in performing his official duties, is a breach of the peace, affecting the authority and interests of the united states, and within the jurisdiction and power of the marshal or his deputies to prevent as a peace officer of the national government. such an assault is not merely an assault upon the person of the judge as a man; it is an assault upon the national judiciary, which he represents, and through it an assault upon the authority of the nation itself. it is, necessarily, a breach of the national peace. as a national peace officer, under the conditions indicated, it is the duty of the marshal and his deputies to prevent a breach of the national peace by an assault upon the authority of the united states, in the person of a judge of its highest court, while in the discharge of his duty. if this be not so, in the language of the supreme court, "why do we have marshals at all?" what useful functions can they perform in the economy of the national government? section 787 of the revised statutes also declares that "it shall be the duty of the marshal of each district to attend the district and circuit courts when sitting therein, and to execute throughout the district all lawful precepts directed to him and issued under the authority of the united states, and he shall have power to command all necessary assistance in the execution of his duty." there is no more authority specifically conferred upon the marshal by this section to protect the judge from assassination in open court, without a specific order or command, than there is to protect him out of court, when on the way from one court to another in the discharge of his official duties. the marshals are in daily attendance upon the judges, and performing official duties in their chambers. yet no statute specifically points out those duties or requires their performance. indeed, no such places as chambers for the circuit judges or circuit justices are mentioned at all in the statutes. yet the marshal is as clearly authorized to protect the judges there as in the court-room. all business done out of court by the judge is called chamber business. but it is not necessary to be done in what is usually called chambers. chamber business may be done, and often is done, on the street, in the judge's own house, at the hotel where he stops, when absent from home, or it may be done in transitu, on the cars in going from one place to another within the proper jurisdiction to hold court. mr. justice field could, as well, and as authoritatively, issue a temporary injunction, grant a writ of _habeas corpus_, an order to show cause, or do any other chamber business for the district in the dining-room at lathrop, as at his chambers in san francisco, or in the court-room. the chambers of the judge, where chambers are provided, are not an element of jurisdiction, but are a convenience to the judge, and to suitors--places where the judge at proper times can be readily found, and the business conveniently transacted. but inasmuch as the revised statutes of the united states (sec. 753) declare that the writ of _habeas corpus_ shall not extend to "a prisoner in jail unless where he is in custody--for an act done or omitted in pursuance of a _law_ of the united states, or of an order, process, or decree of a court or judge thereof, or in custody in violation of the constitution or of a law or treaty of the united states," it was urged in the argument by counsel for the state that there is no statute which specifically makes it the duty of a marshal or deputy marshal to protect the judges of the united states whilst out of the court-room, travelling from one point to another in their circuits, on official business, from the violence of litigants who have become offended at the adverse decisions made by them in the performance of their judicial duties, and that such officers are not within the provisions of that section. to this the court replied that the language of the section is, "an act done in pursuance of a _law_ of the united states"--not in pursuance of a statute of the united states; and that the statutes do not present in express terms all the law of the united states; that their incidents and implications are as much a part of the law as their express provisions; and that when they prescribe duties providing for the accomplishment of certain designated objects, or confer authority in general terms, they carry with them all the powers essential to effect the ends designed. as said by chief justice marshall in osborn v. bank of the united states (9 wheaton, 865-866), "it is not unusual for a legislative act to involve consequences which are not expressed. an officer, for example, is ordered to arrest an individual. it is not necessary, nor is it usual, to say that he shall not be punished for obeying this order. his security is implied in the order itself. it is no unusual thing for an act of congress to imply, without expressing, this very exemption from state control, which is said to be so objectionable in this instance. the collectors of the revenue, the carriers of the mail, the mint establishment, and all those institutions which are public in their nature, are examples in point. it has never been doubted that all who are employed in them are protected while in the line of duty; and yet this protection is not expressed in any act of congress. it is incidental to, and is implied in, the several acts by which these institutions are created; and is secured to the individuals employed in them by the judicial power alone--that is, the judicial power is the instrument employed by the government in administering this security." upon this the circuit court observed: "if the officers referred to in the preceding passage are to be protected while in the line of their duty, without any special law or statute requiring such protection, the judges of the courts, the principal officers in a department of the government second to no other, are also to be protected, and their executive subordinates--the marshals and their deputies--shielded from harm by the national laws while honestly engaged in protecting the heads of the courts from assassination."[1] to the position that the preservation of the peace of the state is devolved solely upon the officers of the state, and not in any respect upon the marshals of the united states, the court replied: this position is already answered by what has been said. but it is undoubtedly true that it was the imperative duty of the state to preserve the public peace and amply protect the life of justice field, _but it did not do it_, and had the united states relied upon the state to keep the peace as to him--one of the justices of the highest court--in relation to matters concerning the performance of his official duties, they would have leaned upon a broken reed. the result of the efforts to obtain an officer from the state to assist in preserving the peace and protecting him at lathrop was anything but successful. the officer of the state at lathrop, instead of arresting the conspirator of the contemplated murderer, the wife of the deceased, arrested the officer of the united states, assigned by the government to the special duty of protecting the justice against the very parties, while in the actual prosecution of duties assigned to him, without warrant, thereby leaving his charge without the protection provided by the government he was serving, at a time when such protection seemed most needed. and, besides, the use of the state police force beyond the limits of a county for the protection of justice field would have been impracticable, as the powers of the sheriff would have ended at its borders, and of other township and city peace officers at the boundaries of their respective townships and cities. only a united states marshal or his deputy could have exercised these official functions throughout the judicial district, which embraces many counties. the only remedy suggested on the part of the state was to arrest the deceased and hold him to bail to keep the peace under section 706 of the penal code, the highest limit of the amount of bail being $5,000. but although the threats are conceded to have been publicly known in the state, no state officer took any means to provide this flimsy safeguard. and the execution of a bond in this amount to keep the peace would have had no effect in deterring the intended assailants from the, commission of the offense contemplated, when the penalties of the law would not deter them. as to the deliberation and wisdom of neagle's conduct under the circumstances, the court, after stating the established facts, concludes as follows: "when the deceased left his seat, some thirty feet distant, walked stealthily down the passage in the rear of justice field and dealt the unsuspecting jurist two preliminary blows, doubtless by way of reminding him that the time for vengeance had at last come, justice field was already at the traditional 'wall' of the law. he was sitting quietly at a table, back to the assailant, eating his breakfast, the side opposite being occupied by other passengers, some of whom were women, similarly engaged. when, in a dazed condition, he awoke to the reality of the situation and saw the stalwart form of the deceased with arm drawn back for a final mortal blow, there was no time to get under or over the table, had the law, under any circumstances, required such an act for his justification. neagle could not seek a 'wall' to justify his acts without abandoning his charge to certain death. when, therefore, he sprang to his feet and cried, 'stop! i am an officer,' and saw the powerful arm of the deceased drawn back for the final deadly stroke instantly change its direction to his left breast, apparently seeking his favorite weapon, the knife, and at the same time heard the half-suppressed, disappointed growl of recognition of the man who, with the aid of half a dozen others, had finally succeeded in disarming him of his knife at the court-room a year before, the supreme moment had come, or, at least, with abundant reason he thought so, and fired the fatal shot. the testimony all concurs in showing this to be the state of facts, and the almost universal consensus of public opinion of the united states seems to justify the act. on that occasion a second, or two seconds, signified, at least, two valuable lives, and a reasonable degree of prudence would justify a shot one or two seconds too soon rather than a fraction of a second too late. upon our minds the evidence leaves no doubt whatever that the homicide was fully justified by the circumstances. neagle on the scene of action, facing the party making a murderous assault, knowing by personal experience his physical powers and his desperate character, and by general reputation his life-long habit of carrying arms, his readiness to use them, and his angry, murderous threats, and seeing his demoniac looks, his stealthy assault upon justice field from behind, and, remembering the sacred trust committed to his charge--neagle, in these trying circumstances, was the party to determine when the supreme moment for action had come, and if he, honestly, acted with reasonable judgment and discretion, the law justifies him, even if he erred. but who will have the courage to stand up in the presence of the facts developed by the testimony in this case, and say that he fired the smallest fraction of a second too soon? "in our judgment he acted, under the trying circumstances surrounding him, in good faith and with consummate courage, judgment, and discretion. the homicide was, in our opinion, clearly justifiable in law, and in the forum of sound, practical common sense commendable. this being so, and the act having been 'done * * * in pursuance of a law of the united states,' as we have already seen, it cannot be an offense against, and he is not amenable to, the laws of the state." the petitioner was accordingly discharged from arrest. [1] note.--i find the following apt illustrations of this doctrine in a journal of the day: if a military or naval officer of the united states, in the necessary suppression of a mutiny or enforcement of obedience, should wound or take the life of a subordinate, would it be contended that, if arrested for that act by the state authority, he could not be released on _habeas corpus_, because no statute expressly authorized the performance of the act? if the commander of a revenue cutter should be directed to pursue and retake a vessel which, after seizure, had escaped from the custody of the law, and the officer in the performance of that duty, and when necessary to overcome resistance, should injure or kill a member of the crew of the vessel he was ordered to recapture, and if for that act he should be arrested and accused of crime under the state authority, will any sensible person maintain that the provisions of the _habeas corpus_ act could not be invoked for his release, notwithstanding that no statute could be shown which directly authorized the act for which he was arrested? if by command of the president a company of troops were marched into this city to protect the subtreasury from threatened pillage, and in so doing life were taken, would not the act of the officer who commanded the troops be an act done in pursuance of the laws of the united states, and in the lawful exercise of its authority? could he be imprisoned and tried before a state jury on the charge of murder, and the courts of the united states be powerless to inquire into the facts on _habeas corpus_, and to discharge him if found to have acted in the performance of his duty? can the authority of the united states for the protection of their officers be less than their authority to protect their property? there appears to be but one rational answer to these questions. in all these cases the authority vested in the officer to suppress a mutiny, or to overtake and capture an escaped vessel, or to protect the subtreasury from threatened pillage, carries with it power to do all things necessary to accomplish the object desired, even the killing of the offending party. the law conferring the authority thus extended to the officer in these cases, is in the sense of the _habeas corpus_ act, a law of the united states to do all things necessary for the execution of that authority. chapter xix. expressions of public opinion. this case and all the attendant circumstances--the attempted assassination of justice field by his former associate, terry; the defeat of this murderous attempt by deputy marshal neagle; the arrest of justice field and the deputy marshal upon the charge of murder, and their discharge--created very great interest throughout the united states. they were the subject of articles in all the leading journals of the country; and numerous telegrams and letters of congratulation were sent to the justice on his escape from the murderous attempt. satisfaction was very generally expressed at the fate which terry met, and much praise was given to the courageous conduct of neagle and at the bearing of justice field under the trying circumstances. a few of the letters received by him are here given, and citations are made from some of the periodicals, which indicated the general sentiment of the country. letter from hon. t.f. bayard, ex-secretary of state: wilmington, delaware, _august 18, 1889_. my dear brother field: i was absent from home when i first saw in the newspapers an account of the infamous assault of the terrys--husband and wife--upon you, and the prompt and courageous action of deputy marshal neagle that happily frustrated the iniquitous plot against your life. accept, my dear friend, my fervent congratulations on your escape from the designs of this madman and of the shameless creature who was his wife and accomplice. for the sake of our country and its reputation in the eyes of christendom, i am indeed grateful that this vile stab at its judicial power, as vested in your personality, miscarried, and that by good fortune the insane malice of a disappointed suitor should have been thwarted. your dignified courage in this tragical episode is most impressive, and, while it endears you the more to those who love you, will wring even from your foes a tribute of respect and admiration. passing over the arguments that may be wrought out of the verbiage of our dual constitution of government, the robust and essential principle _must_ be recognized and proclaimed--that the _inherent powers_ of every government which are sufficient to authorize and enforce the judgments of its courts are equally and at all times and in all places sufficient to protect the individual judge who fearlessly and conscientiously, in the discharge of his duty, pronounces those judgments. the case, my dear friend, is not yours alone; it is equally mine and that of every other american. a principle so vital to society, to the body politic, was never more dangerously and wickedly assailed than by the assault of terry and his wife upon you for your just and honorable performance of your duty as a magistrate. i can well comprehend the shock to which this occurrence has subjected you, and i wish i could be by your side to give you assurance orally (if any were needed) of that absolute sympathy and support to which you are so fully entitled. but these lines will perhaps suffice to make you feel the affectionate and steadfast regard i entertain for you, and which this terrible event has but increased. i cannot forbear an expression of the hope that the arguments of jurisdictional and other points which must attend the litigation and settlement of this tragedy may not be abated or warped to meet any temporary local or partisan demand. the voice of justice can never speak in clearer or more divine accents than when heard in vindication and honor of her own faithful ministers. ever, my dear judge field, sincerely yours, t.f. bayard. the hon. stephen j. field, _san francisco, cal_. letter from hon. e.j. phelps, former minister to england: burlington, vermont, _august 17, 1889_. my dear judge field: pray let me congratulate you most heartily on the terry transaction. nothing that has ever occurred in the administration of justice has given me more satisfaction than this prompt, righteous, and effectual vindication through an officer of the court of the sanctity of the judiciary when in the discharge of its duty. what your marshal did was exactly the right thing, at the right time, and in the right way. i shall be most happy to join in a suitable testimonial to him, if our profession will, as they ought, concur in presenting it. * * * your own coolness and carriage in confronting this danger in the discharge of your duty must be universally admired, and will shed an additional lustre on a judicial career which was distinguished enough without it. you have escaped a great peril--acquired a fresh distinction--and vindicated most properly the dignity of your high station. i am glad to perceive that this is the general opinion. anticipating the pleasure of seeing you in washington next term, i am always, dear sir, most sincerely yours, e.j. phelps. letter from hon. george f. hoar, senator from massachusetts: worcester, _august 16, 1889_. my dear judge field: i think i ought to tell you, at this time, how high you stand in the confidence and reverence of all good men here, how deeply they were shocked by this outrage attempted not so much on you as on the judicial office itself, and how entirely the prompt action of the officer is approved. i hope you may long be spared to the public service. i am faithfully yours, geo. f. hoar. letter from hon. j. proctor knott, for many years a member of congress from kentucky and chairman of the judiciary committee of the house of representatives, and afterwards governor of kentucky: lebanon, kentucky, _september 5, 1889_. my dear judge: * * * i have had it in mind to write you from the moment i first heard of your fortunate escape from the fiendish assassination with which you were so imminently threatened, but i have, since the latter part of may, been suffering from a most distressing affection of the eyes which has rendered it extremely difficult, and frequently, for days together, quite impossible to do so. even now, though much improved, i write in great pain, but i cannot get my consent to delay it longer on any account. you are to be congratulated, my dear friend, and you know that no one could possibly do so with more genuine, heartfelt sincerity than i do myself. * * * i had been troubled, ever since i saw you had gone to your circuit, with apprehensions that you would be assassinated, or at least subjected to some gross outrage, and cannot express my admiration of the serene heroism with which you went to your post of duty, determined not to debase the dignity of your exalted position by wearing arms for your defense, notwithstanding you were fully conscious of the danger which menaced you. it didn't surprise me, however; for i knew the stuff you were made of had been tested before. but i _was_ surprised and disgusted, too, that _you_ should have been charged or even suspected of anything wrong in the matter. the magistrate who issued the warrant for your arrest may possibly have thought it his duty to do so, without looking beyond the "railing accusation" of a baffled and infuriated murderess, which all the world instinctively knew to be false, yet i suppose there is not an intelligent man, woman, or child on the continent who does not consider it an infamous and unmitigated outrage, or who is not thoroughly satisfied that the brave fellow who defended you so opportunely was legally and morally justifiable in what he did. i have not been in a condition to _think_ very coherently, much less to read anything in relation to the question of jurisdiction raised by the state authorities in the _habeas corpus_ issued in your behalf by the u.s. circuit court, and it may be that, from the mere newspaper's reports that have reached me, i have been unable to fully apprehend the objections which are made to the courts hearing all the facts on the trial of the writ; but it occurs to me as a plain principle of common sense that the federal government should not only have the power, but that it is necessary to its own preservation, to protect its officers from being wantonly or maliciously interfered with, hindered or obstructed in the lawful exercises of their official duties, not arbitrarily of course, but through its regularly constituted agencies, and according to the established principles of law; and where such obstruction consists in the forcible restraint of the officer's liberty, i see no reason why the federal judiciary should not inquire into it on _habeas corpus_, when it is alleged to be not only illegal but contrived for the very purpose of hindering the officer in the discharge of his official duties, and impairing the efficiency of the public service. it is true that in such an investigation a real or apparent conflict between state and federal authority may be presented, which a due regard to the respective rights of the two governments would require to be considered with the utmost caution, such caution, at least, as it is fair to presume an intelligent court would always be careful to exercise, in view of the absolute importance of maintaining as far as possible the strictest harmony between the two jurisdictions. yet those rights are determined and by fixed legal principles, which it would be impossible for a court to apply in any case without a competent knowledge of the _facts_ upon which their application in the particular case might depend. for instance, if your court should issue a writ of _habeas corpus_ for the relief of a federal officer upon the averments in his petition that he was forcibly and illegally restrained of his liberty for the purpose of preventing him from performing his official duties, and it should appear in the return to the writ that the person detaining the prisoner was a ministerial officer of the state government authorized by its laws to execute its process, and that he held the petitioner in custody by virtue of a warrant of arrest in due form, issued by a competent magistrate, to answer for an offense against the state laws, i presume the court, in the absence of any further showing, would instantly remand the petitioner to the custody of the state authorities without regard to his official position or the nature of his public duties. but, on the other hand, suppose there should be a traverse of the return, averring that the warrant of the arrest, though apparently regular in all respects, was in truth but a fraudulent contrivance designed and employed for the sole purpose of hindering and obstructing the petitioner in the performance of his duties as an officer of the government of the united states; that the magistrate who issued it, knowingly and maliciously abused his authority for that purpose in pursuance of a conspiracy between himself and others, and not in good faith, and upon probable cause to bring the prisoner to justice for a crime against the state. how then? here is an apparent conflict--not a _real_ one--between the rights of the government of the united states and the government of the state. the one has a right to the service of its officer, and the right to prevent his being unlawfully interfered with or obstructed in the performance of his official duties; the other has the right to administer its laws for the punishment of crime through its own tribunals; but it must be observed that the former has no right to shield one of its officers from a valid prosecution for a violation of the laws of the latter not in conflict with the constitution and laws of the united states, nor can it be claimed that the latter has any right to suffer its laws to be prostituted, and its authority fraudulently abused, in aid of a conspiracy to defeat or obstruct the functions of the former. such an abuse of authority is not, and cannot be in any sense, a _bona fide_ administration of state laws, but is itself a crime against them. what, then, would your court do? you would probably say: if it is true that this man is held without probable cause under a fraudulent warrant, issued in pursuance of a conspiracy to which the magistrate who issued it was a party, to give legal color to a malicious interference with his functions as a federal official, he is the victim of a double crime--a crime against the united states and a crime against the state--and it is not only our duty to vindicate his right to the free exercise of his official duties, but the right of the federal government to his services, and its right to protect him in the legal performance of the same. but if, on the other hand, he has raised a mere "false clamor"--if he is held in good faith upon a valid warrant to answer for a crime committed against the state, it is equally as obligatory upon us to uphold its authority, and maintain its right to vindicate its own laws through its own machinery. to determine between these two hypotheses we must know the _facts_. * * * the same simple reasoning, it occurs to me, applies to mr. neagle's case. whether he acted in the line of his duty under the laws of the united states, as an officer of that government, is clearly a question within the jurisdiction of the federal judiciary. if he _did_, he cannot be held responsible to the state authority; if he did _not_, he should answer, if required, before its tribunals of justice. i presume no court of ordinary intelligence, state or federal, would question these obvious principles; but how _any_ court could determine whether he did or did not act in the line of his official duty under the laws of his government without a judicial inquiry into the _facts_ connected with the transaction i am unable to imagine. * * * i am, as always, your faithful friend, j. proctor knott. hon. s.j. field, _associate justice supreme court u.s._ letter from hon. william d. shipman, formerly u.s. district judge for the district of connecticut: new york, _october 20, 1889_. dear judge: * * * * * i have attentively read judge sawyer's opinion in the neagle _habeas corpus_ case, and i agree with his main conclusions. it seems to me that the whole question of jurisdiction turns on the fact whether you were, at the time the assault was made on you, engaged in the performance of your official duty. you had been to los angeles to hold court there and had finished that business. in going there you were performing an official duty as much as you were when you had held court there. it was then your official duty to go from los angeles to san francisco and hold court there. you could not hold court at the latter place without going, and you were engaged in the line of your official duty in performing that journey for that purpose, as you were in holding the court after you got there. the idea that a judge is not performing official duty when he goes from court-house to court-house or from court-room to court-room in his own circuit seems to me to be absurd. the distance from one court-house or court-room to another is not material, and does not change or modify the act or duty of the judge. now, neagle was an officer of your court, charged with the duty of protecting your person while you were engaged in the performance of your official duty. _his_ duty was to see to it that you were not unlawfully prevented from performing _your_ official duty--not hindered or obstructed therein. for the state authorities to indict him for repelling the assault on you in the only way which he could do so effectually seems to me to be as unwarranted by law as it would be for them to indict him for an assault on terry when he assisted in disarming the latter in the court-room last year. when, therefore, it was conceded on the argument that if the affair at lathrop had taken place in the court-room during the sitting of the court, the jurisdiction of the circuit court would be unquestionable, it is difficult for me to see why the whole question of federal jurisdiction was not embraced in that concession. assassinating a judge _on_ the bench would no more obstruct and defeat public justice than assassinating him on his way to the bench. in each case he is _proceeding in the line of official duty imposed on him by law and_ his official oath. the law requires him to go to court wherever the latter is held, and he is as much engaged in performing the duty thus imposed on him while he is proceeding to the place of his judicial labors as he is in performing the latter after he gets there. it would, therefore, seem to go without saying that any acts done in defense and protection of the judge in the performance of the duties of his office must pertain to the exclusive jurisdiction of the court of which he forms a part. the fact that the assault on you was avowedly made in revenge for your judicial action in a case heard by you gives a darker tinge to the deed, but, perhaps, does not change the legal character of the assault itself. that neagle did his whole duty, and in no way exceeded it, is too plain for argument. yours faithfully, w.d. shipman mr. justice field. letter from james c. welling, president of columbian university, washington: hartford, _august 15, 1889._ my dear judge: it is a relief to know that justice, as well as the honored justice of our supreme judiciary, has been avenged by the pistol-shot of neagle. the life of terry has long since been forfeited to law, to decency, and to morals. he has already exceeded the limit assigned by holy scripture to men of his ilk. "the bloody-minded man shall not live out half his days." the mode of his death was in keeping with his life. men who break all the laws of nature should not expect to die by the laws of nature. in all this episode you have simply worn the judicial ermine without spot or stain. you defeated a bold, bad man in his machinations, and the enmity you thereby incurred was a crown of honor. i am glad that you are to be no longer harassed by the menace of this man's violence, for such a menace is specially trying to a minister of the law. we all know that judge field the _man_ would not flinch from a thousand terrys, but judge field the _justice_ could hardly take in his own hands the protection of his person, where the threatened outrage sprang _entirely_ from his official acts. i wish, therefore, to congratulate you on your escape alike from the violence of terry and from the necessity of killing him with your own hands. it was meet that you should have been defended by an executive officer of the court assailed in your person. for doubtless terry, and the hag who was on the hunt with him, were minded to murder you. convey my cordial felicitations to mrs. field, and believe me ever, my dear mr. justice, your faithful friend, james c. welling. mr. justice field. letter from right rev. b. wistar morris, episcopal bishop of oregon: bishopcroft, portland, oregon, _august 22, 1889_. my dear judge field: i hope a word of congratulation from your oregon friends for your escape in the recent tragedy will not be considered an intrusion. of course we have all been deeply interested in its history, and proud that you were found as you were, without the defenses of a bully. i will not trespass further on your time than to subscribe myself, very truly your friend, b. wistar morris. mr. justice field. a copy of the following card was enclosed in this letter: an unarmed justice. portland oregon, _august 19_. _to the editor of the oregonian_: there is one circumstance in the history of the field and terry tragedy that seems to me is worthy of more emphatic comment than it has yet received. i mean the fact that judge field had about his person no weapon of defense whatever, though he knew that this miserable villain was dogging his steps for the purpose of assaulting him, perhaps of taking his life. his brother, mr. cyrus w. field, says: "it was common talk in the east here, among my brother's friends, that terry's threats to do him bodily harm were made with the full intent to follow them up. terry threatened openly to shoot the justice, and we, who knew him, were convinced he would certainly do it if he ever got a chance. "i endeavored to dissuade my brother from making the trip west this year, but to no purpose, and he said, 'i have a duty to perform there, and this sort of thing can't frighten me away. i know terry will do me harm if he gets a chance, and as i shall be in california some time, he will have chances enough. let him take them.' "when urged to arm himself he made the same reply. he said that when it came to such a pass in this country that judges find it necessary to go armed, it will be time to close the courts themselves." this was a manly and noble reply and must recall to many minds that familiar sentiment: "he is thrice armed who has his quarrel just." with the daily and hourly knowledge that this assassin was ever upon his track, this brave judge goes about his duty and scorns to take to himself the defenses of a bully or a brigand; and in doing so, how immeasurably has he placed himself above the vile creature that sought his life, and all others who resort to deeds of violence. "they that take the sword shall perish with the sword," is a saying of wide application, and had it been so in this case; had this brave and self-possessed man been moved from his high purpose by the importunity of friends, and when slain by his enemy, had been found armed in like manner with the murderer himself, what a stain would it have been upon his name and honor? and how would our whole country have been disgraced in the eyes of the civilized world, that her highest ministers of justice must be armed as highwaymen as they go about their daily duties! well said this undaunted servant of the state: "then will it be time to close the courts themselves." may we not hope, mr. editor, that this example of one occupying this high place in our country may have some influence in staying the spirit and deeds of violence now so rife, and that they who are so ready to resort to the rifle and revolver may learn to regard them only as the instruments of the coward or the scoundrel? b. wistak morris. the citations given below from different journals, published at the time, indicated the general opinion of the country. with rare exceptions it approved of the action of the government, the conduct of neagle, and the bearing of justice field. the _alta california_, a leading paper in california, had, on august 15, 1889, the day following the tragedy, the following article: the terry tragedy. the killing of david s. terry by the united states marshal david neagle yesterday was an unfortunate affair, regretted, we believe, by no one more than by justice field, in whose defense the fatal shot was fired. there seems, however, to be an almost undivided sentiment that the killing was justifiable. every circumstance attending the tragedy points to the irresistible conclusion that there was a premeditated determination on the part of terry and his wife to provoke justice field to an encounter, in which terry might either find an excuse for killing the man against whom he had threatened vengeance, or in which his wife might use the pistol which she always carries, in the pretended defense of her husband. for some time past it has been feared that a meeting between terry and justice field would result in bloodshed. there is now indisputable proof that terry had made repeated threats that he would assault justice field the first time he met him off the bench, and that if the judge resisted he would kill him. viewed in the light of these threats, terry's presence on the same train with justice field will hardly be regarded as accidental, and his actions in the breakfast-room at lathrop were directly in line with the intentions he had previously expressed. neagle's prompt and deadly use of his revolver is to be judged with due reference to the character and known disposition of the man with whom he had to deal and to his previous actions and threats. he was attending justice field, against the will of the latter and in spite of his protest, in obedience to an order from the attorney-general of the united states to marshal franks to detail a deputy to protect the person of justice field from terry's threatened violence. a slap in the face may not, under ordinary circumstances, be sufficient provocation to justify the taking of human life; but it must be remembered that there were no ordinary circumstances and that terry was no ordinary man. terry was a noted pistol-shot; it was known that he invariably carried arms and that he boasted of his ability to use them. if on this occasion he was unarmed, as mrs. terry asserts,[1] neagle had no means of knowing that fact; on the contrary, to his mind every presumption was in favor of the belief that he carried both pistol and knife, in accordance with his usual habit. as a peace officer, even apart from the special duty which had been assigned to him, he was justified in taking the means necessary to prevent terry from continuing his assault; but the means necessary in the case of one man may be wholly inadequate with a man bearing the reputation of david s. terry, a man who only a few months previously had drawn a knife while resisting the lawful authority of another united states officer. it is true that if terry was unarmed, the deputy marshal might have arrested him without taking his life or seriously endangering his own; but terry was a man of gigantic stature, and though aged, in possession of a giant's strength; and there is no one who was acquainted with him, or has had opportunity to learn his past history, who does not know that he was a desperate man, willing to take desperate chances and to resort to desperate means when giving way to his impulses of passion, and that any person who should at such a moment attempt to stay his hand would do so at the risk of his life. whether he had a pistol with him at that moment or not, there was every reason to believe that he was armed, and that the blow with his hand was intended only as the precursor to a more deadly blow with a weapon. at such moments little time is allowed for reflection. the officer of the law was called upon to act and to act promptly. he did so, and the life of david s. terry was the forfeit. he fell, a victim to his own ungovernable passions, urged on to his fate by the woman who was at once his wife and his client, and perhaps further incited by sensational newspaper articles which stirred up the memory of his resentment for fancied wrongs, and taunted him with the humiliation of threats unfulfilled. the close of judge terry's life ends a career and an era. he had the misfortune to carry into a ripened state of society the conditions which are tolerable only where social order is not fully established. restless under authority, and putting violence above law, he lived by the sword and has perished by it. that example which refused submission to judicial finalities was becoming offensive to california, but the incubus of physical fear was upon many who realized that the survival of frontier ways into non-frontier period was a damage to the state. but, be this as it may, the stubborn spirit that defied the law has fallen by the law. when justice field showed the highest judicial courage in the opening incidents of the tragedy that has now closed, the manhood of california received a distinct impetus. when the justice, with threats made against his life, returned to the state unarmed, and resentful of protection against assault, declaring that when judges must arm to defend themselves from assault offered in reprisal of their judicial actions society must be considered dissolved, he was rendering to our institutions the final and highest possible service. the event that followed, the killing of terry in the act of striking him the second time from behind, while he sat at table in a crowded public dining-room, was the act of the law. the federal department of justice, by its chief, the attorney-general of the united states, had ordered its officer, the united states marshal for the northern district of california, to take such means and such measures as might be necessary to protect the persons of the judges against assault by judge terry, in carrying out the threats that he had made. this order was from the executive arm of the government, and it was carried out to the letter. judge terry took the law into his own hands and fell. nothing can add to the lesson his fate teaches. it is established now that in california no man is above the law; that no man can affect the even poise of justice by fear. confiding in his own strength as superior to the law, david s. terry fell wretchedly. no more need be said. new california inscribes upon her shield, "obedience to the law the first condition of good citizenship," and the past is closed. _the record-union_ of sacramento, one of the leading papers of california, on august 15, 1889, the day following the tragedy, had the following article under the head- killing of judge terry. in the news columns of the _record-union_ will be found all the essential details of the circumstances of the killing of d.s. terry. it will be evident to the reader that they readily sap the whole case, and that there is no substantial dispute possible concerning the facts. these truths we assert, without fear of successful contradiction, establish the justifiableness of the act of the united states marshal who fired upon and killed terry. we think there will be no dispute among sensible men that a federal circuit judge or a justice of the supreme bench, passing from one portion of the circuit to another in which either is required to open a court and hear causes, and for the purpose of fully discharging his official duties, is while en route in the discharge of an official function, and constructively his court is open to the extent that an assault upon him, because of matters pending in his court, or because of judgments he has rendered or is to render, is an assault upon the court, and his bailiff or marshal detailed to attend the court or to aid in preserving the order and dignity of the court has the same right to protect him from assault then that he would have, had the judge actually reached his court-room. but further than this, we hold that in view of the undeniable fact that the justice had knowledge of the fact that the terrys, man and wife, had sworn to punish him; that they had indulged in threats against him of the most pronounced character; that they had boarded a train on which it is probable they knew he had taken passage from one part of his circuit to another in his capacity as a magistrate; in view of the fact that terry sought the first opportunity to approach and strike him, and that, too, when seated; and in view of the notorious fact that terry always went armed--the man who shot terry would have been justified in doing so had he not even been commissioned as an officer of the court. he warned the assailant to desist, and knowing his custom to go armed, and that he had threatened the justice, and terry refusing to restrain his blows, it was neagle's duty to save life, to strike down the assailant in the most effectual manner. men who, having the ability to prevent murder, stand by and see it committed, may well be held to accountability for criminal negligence. but in this case it is clear that murder was intended on the part of the terrys. one of them ran for her pistol and brought it, and would have reached the other's side with it in time, had she not been detained by strong men at the door. neagle saw this woman depart, and coupling it with the advance of terry, knew, as a matter of course, what it meant. he had been deputed by the chief law officer of the government--in view of previous assaults by the terrys and their threats and display of weapons in court--to stand guard over the judges and protect them. he acted, therefore, precisely as it was proper he should do. had he been less prompt and vigorous, all the world knows that not he but terry would to-day be in custody, and not terry but the venerable justice of the supreme court of the united states would to-day be in the coffin. these remarks have grown too extended for any elaboration of the moral of the tragedy that culminated in the killing of david s. terry yesterday. but we cannot allow the subject to be even temporarily dismissed without calling the thought of the reader to contemplation of the essential truth that society is bound to protect the judges of the courts of the land from violence and the threats of violence; otherwise the decisions of our courts must conform to the violence threatened, and there will be an end of our judicial system, the third and most valuable factor in the scheme of representative government. society cannot, therefore, punish, but must applaud the man who defends the courts of the people and the judges of those courts from such violence and threats of violence. for it must be apparent to even the dullest intellect that all such violence is an outrage upon the judicial conscience, and therefore involves and puts in peril the liberties of the people. the new orleans _times-democrat,_ in one of its issues at this period, used the following language: the judge in america who keeps his official ermine spotless, who faithfully attends to the heavy and responsible duties of his station, deserves that the people should guard the sanctity of his person with a strength stronger than armor of steel and readier than the stroke of lance or sword. though the judges be called to pass on tens of thousands of cases, to sentence to imprisonment or to death thousands of criminals, they should be held by the people safe from the hate and vengeance of those criminals as if they were guarded by an invulnerable shield. if judge field, of the supreme court, one of the nine highest judges under our republican government, in travelling recently over his circuit in california, had been left to the mercy of the violent man who had repeatedly threatened his life, who had proved himself ready with the deadly knife or revolver, it would have been a disgrace to american civilization; it would have been a stigma and stain upon american manhood; it would have shown that the spirit of american liberty, which exalts and pays reverence to our judiciary, had been replaced by a public apathy that marked the beginning of the decline of patriotism. judge field recognized this when, in being advised to arm himself in case his life was endangered, he uttered the noble words: "no, sir; i do not and will not carry arms, for when it is known that the judges of the court are compelled to arm themselves against assaults offered in consequence of their judicial action it will be time to dissolve the courts, consider the government a failure, and let society lapse into barbarism." that ringing sentence has gone to the remotest corner of the land, and everywhere it has gone it should fire the american heart with a proud resolve to protect forever the sanctity of our judiciary. had not neagle protected the person of judge field from the assault of a dangerous and violent ruffian, apparently intent on murder, by his prompt and decisive action, shooting the assailant down to his death, it is certain that other brave men would have rushed quickly to his rescue; but neagle's marvelous quickness forestalled the need of any other's action. the person of one of the very highest american judges was preserved unharmed, while death palsied the murderous hand that had sworn to take his life. that act of neagle's was no crime. it was a deed that any and every american should feel proud of having done. it was an act that should be applauded over the length and breadth of this great land. it should not have consigned him for one minute to prison walls. it should have lifted him high in the esteem of all the american people. when criminals turn executioners, and judges are the victims, we might as well close our courts and hoist the red flag of anarchy over their silent halls and darkened chambers. the new york _herald_, in its issue of august 19, 1889, said: the sensation of the past week is a lesson in republicanism and a eulogium on the majesty of the law. it was not a personal controversy between stephen j. field and david s. terry. it was a conflict between law and lawlessness--between a judicial officer who represented the law and a man who sought to take it into his own hands. one embodied the peaceful power of the nation, the will of the people; the other defied that power and appealed to the dagger. justice field's whole course shows a conception of judicial duty that lends grandeur to a republican judiciary. it is an inspiring example to the citizens and especially to the judges of the country. he was reminded of the danger of returning to california while judge terry and his wife were at large. his firm answer was that it was his duty to go and his would go. he was then advised to arm himself for self-defense. his reply embodies a nobility that should make it historic: "when it comes to such a pass in this country that judges of the courts find it necessary to go armed it will be time to close the courts themselves." this sentiment was not born of any insensibility to danger; justice field fully realized the peril himself. but above all feeling of personal concern arose a lofty sense of the duty imposed upon a justice of the nation's highest court. the officer is a representative of the law--a minister of peace. he should show by his example that the law is supreme; that all must bow to its authority; that all lawlessness must yield to it. when judges who represent the law resort to violence even in self-defense, the pistol instead of the court becomes the arbiter of controversies, and the authority of the government gives way to the power of the mob. rather than set a precedent that might tend to such a result, that would shake popular confidence in the judiciary, that would lend any encouragement to violence, a judge, as justice field evidently felt, may well risk his own life for the welfare of the commonwealth. he did not even favor the proposition that a marshal be detailed to guard him. the course of the venerable justice is an example to all who would have the law respected. it is also a lesson to all who would take the law into their own hands. not less exemplary was his recognition of the supremacy of the law when the sheriff of san joaquin appeared before him with a warrant of arrest on the grave charge of murder. the warrant was an outrage, but it was the duty of the officer to serve it, even on a justice of the united states supreme court. when the sheriff hesitated and began to apologize before discharging his painful duty, justice field promptly spoke out: "officer, proceed with your duty. i am ready, and an officer should always do his duty." these are traits of judicial heroism worthy the admiration of the world. the _albany evening union_, in one of its issues at this time, has the following: justice field relies upon the law for his defense. the courage of justice stephen j. field in declining to carry weapons and declaring that it is time to close the courts when judges have to arm themselves, and at the same time proceeding to do his duty on the bench when his life was threatened by a desperate man, is without parallel in the history of our judiciary. we do not mean by this that he is the only judge on the bench that would be as brave as he was under the circumstances, but every phase of the affair points to the heroism of the man. he upheld the majesty of the law in a fearless manner and at the peril of his life. he would not permit the judiciary to be lowered by any fear of the personal harm that might follow a straightforward performance of his duty. his arrest for complicity in a murder was borne by the same tranquil bravery--a supreme reliance upon a due process of law. he did not want the officer to apologize to him for doing his duty. he had imprisoned judge terry and his wife sarah althea for contempt of court. * * * the threats by judge terry did not even frighten him to carry weapons of self-defense. this illustration of upholding the majesty of the law is without precedent, and is worth more to the cause of justice than the entire united states army could be if called out to suppress a riotous band of law-breakers. justice field did what any justice should do under the circumstances, but how many judges would have displayed a like courage had they been in his place? the _new york world_, in its issue of monday evening, august 26th, has the following article: a new leaf turned. when judge field, knowing that his life was threatened, went back unarmed into the state of california and about his business there, he gave wholesome rebuke to the cowardice that prompts men to carry a pistol--a cowardice that has been too long popular on the coast. he did a priceless service to the cause of progress in his state, and added grace to his ermine when he disdained to take arms in answer to the threats of assassins. the men who have conspired to take judge field's life ought to need only one warning that a new day has dawned in california, and to find that warning in the doom of the bully terry. the law will protect the ermine of its judges. the new york _world_ of august 18th treats of the arrest of justice field as an outrage, and speaks of it as follows: the arrest of field an outrage and an absurdity. the california magistrate who issued a warrant for justice field's arrest is obviously a donkey of the most precious quality. the justice had been brutally assailed by a notorious ruffian who had publicly declared his intention to kill his enemy. before justice field could even rise from his chair a neat-handed deputy united states marshal shot the ruffian. justice field had no more to do with the shooting than any other bystander, and even if there had been doubt on that point it was certain that a justice of the united states supreme court was not going to run away beyond the jurisdiction. his arrest was, therefore, as absurd as it was outrageous. it was asked for by the demented widow of the dead desperado simply as a means of subjecting the justice to an indignity, and no magistrate possessed of even a protoplasmic possibility of common sense and character would have lent himself in that way to such a service. the kansas city _times_, in its issue at this period, uses the following language: no one will censure. _gratitude for judge field's escape the chief sentiment._ deputy marshal neagle acted with terrible promptitude in protecting the venerable member of the supreme court with whose safety he was specially charged, but few will be inclined to censure him. he had to deal with a man of fierce temper, whose readiness to use firearms was part of the best known history of california. it is a subject for general congratulation that justice field escaped the violence of his assailant. the american nation would be shocked to learn that a judge of its highest tribunal could not travel without danger of assault from those whom he had been compelled to offend by administering the laws. justice field has the respect due his office and that deeper and more significant reverence produced by his character and abilities. since most of the present generation were old enough to observe public affairs he has been a jurist of national reputation and a sitting member of the supreme court. in that capacity he has earned the gratitude of his countrymen by bold and unanswerable defense of sound constitutional interpretation on more than one occasion. in all the sad affair the most prominent feeling will be that of gratitude at his escape. _the army and navy journal_, in its issue of august 24, 1889, had the following article under the head of- marshal neagle's crime. the public mind appears to be somewhat unsettled upon the question of the right of neagle to kill terry while assaulting judge field. his justification is as clear as is the benefit of his act to a long-suffering community. judge field was assaulted unexpectedly from behind, while seated at a dining-table, by a notorious assassin and ruffian, who had sworn to kill him, and who, according to the testimony of at least one witness, was armed with a long knife, had sent his wife for a pistol, and was intending to use it as soon as obtained. * * * the rule is that the danger which justifies homicide in self-defense must be actual and urgent. and was it not so in this case? no one who reflects upon the features of the case--an old man without means of defense, fastened in a sitting posture by the table at which he sat and the chair he occupied, already smitten with one severe blow and about to receive another more severe from a notorious ruffian who had publicly avowed his intention to slay him--no one surely can deny that the peril threatening judge field was both actual and urgent in the very highest degree. "a man may repel force by force in the defense of his person, habitation, or property, against one or many who manifestly intend and endeavor by violence or surprise to commit a known felony on either." "in such a case he is not obliged to retreat, but may pursue his adversary till he find himself out of danger; and if in a conflict between them he happens to kill, such killing is justifiable. the right of self-defense in case of this kind is founded on the law of nature, and is not, nor can be, superseded by any law of society. where a known felony is attempted upon the person, be it to rob or murder, the party assaulted may repel force by force; and even his servant attendant on him, or any person present, may interpose for preventing mischief, and, if death ensue, the party interposing will be justified." (wharton amer. crim. law, vol. 2, sec. 1019.) this is the law, as recognized at the present day and established by centuries of precedent, and it completely exonerates neagle--of course judge field needs no exoneration--from any, the least, criminality in what he did. he is acquitted of wrong-doing, not only in his character of attendant servant, but in that of bystander simply. he was as much bound to kill terry under the circumstances as every bystander in the room was bound to kill him; and in his capacity of guard, especially appointed to defend an invaluable life against a known and imminent felony, he was so bound in a much greater degree. "a sincere and apparently well-grounded belief that a felony is about to be perpetrated will extenuate a homicide committed in prevention of it, though the defendant be but a private citizen" (25 ala., 15.) see wharton, above quoted, who embodies the doctrine in his text (vol. 2, sec. 1039). * * * * * let us be grateful from our hearts that the old mosaic law, "whoso sheddeth man's blood by man shall his blood be shed," is shown by this memorable event to have not yet fallen altogether into innocuous desuetude; and let us give thanks to god that he has seen fit on this occasion to preserve from death at the hands of an intolerable ruffian the life of that high-minded, pure-handed, and excellent jurist and magistrate, stephen j. field. the philadelphia _times_ of august 15th has the following: only one opinion. _marshal neagle could not stand idly by._ the killing of judge terry of california is a homicide that will occasion no regret wherever the story of his stormy and wicked life is known. at the same time, the circumstances that surrounded it will be deeply lamented. this violent man, more than once a murderer, met his death while in the act of assaulting justice field of the supreme court of the united states. had he not been killed when he was, judge field would probably have been another of his victims. terry had declared his purpose of killing the justice, and this was their first meeting since his release from deserved imprisonment. in regard to the act of united states marshal neagle, there can be only one opinion. he could not stand idly by and see a judge of the suprene court murdered before his eyes. the contumely that terry sought to put upon the judge was only the insult that was to go before premeditated murder. the case has no moral except the certainty that a violent life will end in a violent death. the _philadelphia inquirer_ of the same date says as follows: a premeditated insult. _followed quickly by a deserved retribution._ ex-judge terry's violent death was a fitting termination to a stormy life, and the incidents of his last encounter were characteristic of the man and his methods. he was one of the few lingering representatives of the old-time population of california. he was prominent there when society was organizing itself, and succeeded in holding on to life and position when many a better man succumbed to the rude justice of the period. most of his early associates died with their boots on, a generation ago. terry lived, assailed on all sides, despised by the better element and opposed by the law, in trouble often, but never punished as he deserved. his last act was to offer a gross, premeditated insult to the venerable justice field, and the retribution he had long defied followed it quickly. california will have little reason to mourn his loss. the _cleveland leader_, in its issue of august 18th, speaks of the conduct of neagle as follows: the killing of terry. we have already expressed the opinion in these columns that the killing of david s. terry by deputy marshal neagle at lathrop, california, wednesday, was entirely justifiable. in that opinion it is a pleasure to note that the press of the country concur almost unanimously. the judgment of eminent members of the legal profession, as published in our telegraph columns and elsewhere, support and bear out that view of the case. the full account of the trouble makes the necessity of some such action on the part of the deputy marshal clear. the judgment of the country is that neagle only did his duty in defending the person of justice field, and in that judgment the california jury will doubtless concur when the case is brought before it. the _argonaut_, a leading paper of san francisco, not a political, but a literary paper, and edited with great ability, in its issue of august 26, 1889, used the following language: the course of judge field throughout this troublesome business has been in the highest degree creditable to him. he has acted with dignity and courage, and his conduct has been characterized by most excellent taste. his answer, when requested to go armed against the assault of terry, is worthy of preservation. and now that his assailant has been arrested in his career by death, all honest men who respect the law will breathe more freely. judge terry had gained a most questionable reputation, not for courage in the right direction; not for generosity which overlooked or forgave, or forgot offenses against himself or his interests. he never conceded the right to any man to hold an opinion in opposition to his prejudices, or cross the path of his passion with impunity. he could with vulgar whisper insult the judge who rendered an opinion adverse to his client, and with profane language insult the attorney who had the misfortune to be retained by a man whose cause he did not champion. he had become a terror to society and a walking menace to the social circle in which he revolved. his death was a necessity, and, except here and there a friend of blunted moral instincts, there will be found but few to mourn his death or criticise the manner of his taking off. to say that marshal neagle should have acted in any other manner than he did means that he was to have left justice field in the claws of a tiger, and at the mercy of an infuriated, angry monster, who had never shown mercy or generosity to an enemy in his power. * * * judge field has survived the unhappy conflict which carried judge terry to his grave. he is more highly honored now than when this quarrel was thrust upon him; he has lost no friends; he has made thousands of new ones who honor him for protecting with his life the honor of the american bench, the dignity of the american law, and the credit of the american name. in the home where judge terry lived he went to the grave almost unattended by the friends of his social surroundings, no clergyman consenting to read the service at his burial. the supreme court over which he had presided as chief justice refused to adjourn in honor of his death, the press and public opinion, for a wonder, in accord over the manner of his taking off. indeed, the public opinion of the country, as shown by the press and declarations of prominent individuals, was substantially one in its approval of the action of the government, the conduct of neagle, and the bearing of justice field.[2] the _daily report_, a paper of influence in san francisco at the time, published the following article on "the lesson of the hour," from the pen of an eminent lawyer of california, who was in no way connected with the controversy which resulted in judge terry's death: the universal acquiescence of public opinion in the justifiable character of the act which terminated the life of the late david s. terry is to be accounted for by the peculiar nature of the offense which he had committed. it was not for a mere assault, though perpetrated under circumstances which rendered it peculiarly reprehensible, that he met his death without eliciting from the community one word of condemnation for the slayer or of sympathy with the slain. mr. justice field is an officer of high rank in the most important department of the government of the united states, namely, that which is charged with the administration of legal justice. when david s. terry publicly and ostentatiously slapped the face of this high official--this representative of public justice--the blow being in all probability the intended prelude to a still more atrocious offense, he committed a gross violation of the peace and dignity of the united states. the echo of the blow made the blood tingle in the veins of every true american, and from every quarter, far and near, thick and fast, came denunciations of the outrage. that any man under a government created "by the people, for the people" shall assume to be a law unto himself, the sole despot in a community based on the idea of the equality of all before the law, and the willing submission and obedience of all to established rule, is simply intolerable. in his audacious assault on "the powers that be" terry took his life in his hand, and no lover of peace and good order can regret that, of the two lives in peril, his was extinguished. he threw down the gage of battle to the whole community, and it is well that he was vanquished in the strife. in the early part of the war of the rebellion general dix, of new york, was placed in charge of one of the disaffected districts. we had then hardly begun to see that war was a very stern condition of things, and that it actually involved the necessity of killing. those familiar with the incidents of that time will remember how the general's celebrated order, "if any one attempts to haul down the american flag, shoot him on the spot," thrilled the slow pulses of the northern heart like the blast of a bugle. yet some adverse obstructionist might object that the punishment pronounced far exceeded the offense, which was merely the effort to detach from its position a piece of colored bunting. but it is the _animus_ that characterizes the act. an insult offered to a mere symbol of authority becomes, under critical circumstances, an unpardonable crime. if the symbol, instead of being an inanimate object, be a human being--a high officer of the government--does not such an outrage as that committed by terry exceed in enormity the offense denounced by general dix? and if so, why should the punishment be less? in every civilized community, society, acting with a keen instinct of self-preservation, has always punished with just severity those capital offenders against peace and good order who strike at the very foundation on which all government must rest. [1] it has been conclusively established since that he was armed with his usual bowie-knife at the time. [2] note.--whilst there was a general concurrence of opinion as to the threats of terry and of the fate he met at the hands of neagle and of the bearing of justice field through all the proceedings, there were exceptions to this judgment. there were persons who sympathized with terry and his associates and grieved at his fate, although he had openly avowed his intention not merely to insult judicial officers for their judicial conduct, but to kill them in case they resented the insult offered. he married sarah althea hill after the united states circuit court had delivered its opinion, in open court, announcing its decision that she had committed forgery, perjury, and subornation of perjury, and was a woman of abandoned character. and yet a writer in the _overland monthly_ in october, 1889, attributes his assault upon the marshal--striking him violently in the face for the execution of the order of the court to remove her from the court-room because of her gross imputation upon the judges--chiefly to his chivalric spirit to protect his wife, and declares that "the universal verdict" upon him "will be that he was possessed of _sterling integrity of purpose_, and stood out from the rest of his race as a strongly individualized character, which has been well called an anachronism in our civilization." and governor pennoyer, of oregon, in his message to the legislature of that state, pronounced the officer appointed by the marshal under the direction of the attorney-general to protect justices field and sawyer from threatened violence and murder as a "_secret armed assassin_," who accompanied a federal judge in california, and who shot down in cold blood an unarmed citizen of that state. chapter xx. the appeal to the supreme court of the united states, and the second trial of sarah althea's divorce case. with the discharge from arrest of the brave deputy marshal, neagle, who had stood between justice field and the would-be assassin's assault, and the vindication by the circuit court of the right of the general government to protect its officers from personal violence, for the discharge of their duties, at the hands of disappointed litigants, the public mind, which had been greatly excited by the proceedings narrated, became quieted. no apprehension was felt that there would be any reversal of the decision of the circuit court on the appeal which was taken to the supreme court. general and absolute confidence was expressed in the determination of the highest tribunal of the nation. the appeal was argued on the part of neagle by the attorney-general of the united states and joseph h. choate, esq., of the new york bar; and the briefs of counsel in the circuit court were also filed. the attorney-general of california and mr. zachariah montgomery appeared upon behalf of the state, and briefs of messrs. shellabarger and wilson were also filed in its behalf. the argument of the attorney-general of the united states was exceedingly able. he had watched all the proceedings of the case from the outset. he had directed that protection should be extended by the marshal to justice field and judge sawyer against any threatened violence, and he believed strongly in the doctrine that the officers of the general government were entitled to receive everywhere throughout the country full protection against all violence whilst in the discharge of their duties. he believed that such protection was necessary to the efficiency and permanency of the government; and its necessity in both respects was never more ably presented. the argument of mr. choate covered all the questions of law and fact in the case and was marked by that great ability and invincible logic and by that clearness and precision of statement which have rendered him one of the ablest of advocates and jurists in the country, one who all acknowledge has few peers and no superiors at the bar of the nation.[1] the argument of the attorney-general of the state consisted chiefly of a repetition of the doctrine that, for offenses committed within its limits, the state alone has jurisdiction to try the offenders--a position which within its proper limits, and when not carried to the protection of resistance to the authority of the united states, has never been questioned. the most striking feature of the argument on behalf of the state was presented by zachariah montgomery. it may interest the reader to observe the true terry flavor introduced into his argument, and the manifest perversion of the facts into which it led him. he deeply sympathized with terry in the grief and mortification which he suffered in being charged with having assaulted the marshal with a deadly weapon in the presence of the circuit court in september, 1888. he attempted to convince the supreme court that one of its members had deliberately made a misrecital, in the order committing terry for contempt, and treated this as a mitigation of that individual's subsequent attack on justice field. he did not, however, attempt to gainsay the testimony of the numerous witnesses who swore that terry did try to draw his knife while yet in the court-room on that occasion, and that, being temporarily prevented from doing so by force, he completed the act as soon as this force was withdrawn, and pursued the marshal with knife in hand, loudly declaring in the hearing of the court, in language too coarse and vulgar to be repeated, that he would do sundry terrible things to those who should obstruct him on his way to his wife. as she was then in the custody of the marshal and in his office, under an order of the court; and as terry had resisted her arrest and removal from the court-room until overpowered by several strong men, and as he had instantly on being released rushed madly from the court-room, drawing and brandishing his knife as he went, the conclusion is irresistible that he was determined upon her rescue from the marshal, if, with the aid of his knife, he could accomplish it. that mr. montgomery allowed these facts, which constitute the offense of an assault with a deadly weapon, to go unchallenged, compels us to the charitable presumption that he did not know the law. a reading of the decisions on this subject would have taught him that in order to constitute that offense it is not necessary that the assailant should actually stab with his knife or shoot with his pistol. the assault by terry was commenced in the court-room, under the eyes of the judges, and was a continuing act, ending only-with the wrenching of the knife from his hands. it was all committed "in the presence of the court," for the supreme court has decided in the savin case that "the jury-room and hallway were parts of the place in which the court was required by law to hold its sessions, and that the court, at least when in session, is present in every part of the place set apart for its own use and for the use of its officers, jurors, and witnesses, and that misbehavior in such a place is misbehavior in the presence of the court. (see vol. 131, u.s. reports, page 277, where the case is reported.) mr. montgomery was feckless enough to contradict the record when he stated that justice field in his opinion in the revivor case "took occasion to discuss at considerable length the question of the genuineness of the aforesaid marriage document, maintaining very strenuously that it was a forgery, and that this it was that so aroused the indignation of mrs. terry that she sprang to her feet and charged justice field with having been bought." there is not a word of truth in this statement. justice field, in overruling the demurrer, never discussed at all the genuineness of the marriage agreement. how, then, could it be true that words, nowhere to be found in judge field's opinion, "so aroused the indignation of mrs. terry that she sprang to her feet and charged justice field with having been bought"? justice field discussed only the legal effect of the decree already rendered by the united states circuit court. he said nothing to excite the woman's ire, except to state the necessary steps to be taken to enforce the decree. he had not participated in the trial of the original case, and had never been called upon to express any opinion concerning the agreement. mr. montgomery said in his brief that the opinion read by justice field, "while overruling a demurrer, assails this contract, in effect pronouncing it a forgery." this statement is totally unfounded. from it the casual reader would suppose that the demurrer was to the complaint in the original case, and that the court was forestalling evidence, whereas it was a demurrer in a proceeding to revive the suit, which had abated by the death of the party, and to give effect to the decree already rendered therein, after a full hearing of the testimony. mr. montgomery said: "the opinion also charges mrs. terry with perjury, after she has sworn that it was genuine." the judgment of a court may be referred to by one of its judges, even though the rendering of the judgment convicted a party or a witness, of perjury, without furnishing the perjurer with a justification for denouncing the judge. mr. montgomery furthermore said that the "opinion charged her not only with forgery and perjury, but with unchastity as well; for if she had not been sharon's wife, she had unquestionably been his kept mistress." he says: "at the announcement of this decision from the bench in the presence of a crowded court-room; a decision which she well knew, before the going down of another sun, would be telegraphed to the remotest corners of the civilized world, to be printed and reprinted with sensational head-lines in every newspaper, and talked over by every scandal-monger on the face of the earth; was it any wonder--not that it was right--but was it any wonder that this high-spirited, educated woman, sprung from as respectable a family as any in the great state of missouri, proud of her ancestry, and prizing her good name above everything on this earth, when she heard herself thus adjudged in one breath to be guilty of forgery, perjury, and unchastity, and thus degraded from the exalted position of wife--to which the supreme court of her state had said she was entitled--down to that of a paid harlot; was it any wonder, i say, that like an enraged tigress she sprang to her feet, and in words of indignation sought to defend her wounded honor?" mr. montgomery did not speak truly when he said that on this occasion such a decision was announced from the bench. the decision was announced on the 24th of december, 1885, nearly three years before. the only decision announced on this occasion was that the case did not die with the plaintiff therein--william sharon--but that the executor of his estate had the right to act--had a right to be substituted for the deceased, and to have the decree executed just as it would have been if mr. sharon had lived. it was amazing effrontery and disregard of the truth on the part of mr. montgomery to make such a statement as he did to the supreme court, when the record, lying open before them, virtually contradicted what he was saying. towards the close of the decision justice field did make reference to mrs. terry's testimony in the superior court. he said that in the argument some stress had been laid upon the fact that in a state court, where the judge had decided in mrs. terry's favor, the witnesses had been examined in open court, where their bearing could be observed by the judge; while in the federal court the testimony had been taken before an examiner, and the court had not the advantage of hearing and seeing the witnesses. in reply to this justice field called attention to the fact that judge sullivan, while rendering his decision in favor of mrs. terry, had accused her of having wilfully perjured herself in several instances while testifying in her own case, and of having suborned perjury, and of having knowingly offered in evidence a forged document. but this reference to judge sullivan's accusations against mrs. terry was not reached in the reading of justice field's opinion until nearly an hour after mrs. terry had been forcibly removed from the court-room for contempt, and therefore she did not hear it. this fact appears on record in the contempt proceedings. but the most extraordinary feature of mr. montgomery's brief is yet to be noticed. he says that "if the assault so made by judge terry was not for the purpose of then and there killing or seriously injuring the party assaulted, but for the purpose of provoking him into a duel, then the killing of the assailant for such an assault was a crime." and again he says: "i have said that if the purpose of judge terry's assault upon field was for the purpose of killing him then and there, neagle, and not neagle only, but anybody else, would have been justifiable in killing terry to save the life of field; but that if terry's object in assaulting field was not then and there to kill or otherwise greatly injure him, but to draw him into a duel, then such an assault was not sufficient to justify the killing." he then proceeds to speak of judge terry's duel with senator broderick, in which the latter was killed. he refers to many eminent citizens who have fought duels, although he admits that dueling is a sin. he then explains that "as a rule the duelist who considers himself wronged by another, having the position and standing of a gentleman, tenders him an insult, either by a slap in the face or otherwise, in order to attract a challenge. such undoubtedly was terry's purpose in this case. all of terry's threats point precisely to that." here mr. montgomery seems to be in accord with sarah althea terry, who, as we have seen, stated that "judge terry intended to take out his satisfaction in slaps." in the same direction is the declaration of porter ashe, when he said: "instant death is a severe punishment for slapping a man on the face. i have no suspicion that terry meant to kill field or to do him further harm than to humiliate him." and also that of mr. baggett, one of terry's counsel, who said: "i have had frequent conversations with terry about field, and he has often told me that field has used his court and his power as a judge to humiliate him, and that he intended to humiliate him in return to the extent of his power. 'i will slap his face,' said terry to me, 'if i run across him, but i shall not put myself out of the way to meet him. i do not intend to kill him, but i will insult him by slapping his face, knowing that he will not resent it.'" what knightly courage was here. if ever a new edition of the dueling code is printed, it should have for a frontispiece a cut representing the stalwart terry dealing stealthy blows from behind upon a justice of the united states supreme court, 72 years of age, after having previously informed a trusted friend that he believed himself safe from any resistance by the object of his attack. it may be here also said that justice field, as was well known to every one, had for many years suffered from great lameness in consequence of an injury received by him in early life, and with difficulty could walk without assistance. mr. montgomery, with freezing candor, informs the supreme court that, in strict accordance with the chivalrous code of honor, judge terry administered blows upon a member of that court, to force him into a duel, because of a judicial act with which he was displeased. he says: "the most conclusive proof that terry had no intention, for the time being, of seriously hurting field, but that his sole purpose was to tender him an insult, is found in the fact that he only used his open hand, and that, too, in a mild manner." we often hear of the "mild-mannered men" who "scuttle ships" and "cut throats," but this is the very first one whose "very mild manner" of beating a justice of the supreme court of the united states with his hand was ever certified to by an attorney and counsellor of that court in the argument of a case before it. it would be difficult to conceive of anything more puerile or absurd than this pretense that terry had the slightest expectation of provoking a man of justice field's age, official position, and physical condition, to fight a duel with him in vindication of the right of the court over which he presided to imprison a man for contempt for beating the marshal in the face with his fist, and afterwards pursuing him with a knife, in the presence of the court, for obeying an order of the court. mr. montgomery appears to have been imported into the case mainly for the purpose of reviewing the facts and giving them the terry stamp. his ambition seems to have been to insult justice field and his associates in the circuit court by charging them with misrepresenting the facts of the occurrence, thus repeating terry's reckless accusations to that effect. for terry he had only words of eulogy and admiration, and said he was "straightforward, candid, and incapable of concealment or treachery himself, and therefore never suspected treachery, even in an enemy." these noble qualities terry had illustrated by assaulting justice field from behind while the latter was in a position which placed him entirely at the mercy of his assailant. montgomery thought that not only neagle, but the president, attorney-general, district attorney, and marshal franks should be arraigned for terry's murder. although justice field had expressly advised the marshal that it was unnecessary for anybody to accompany him to los angeles, and although neagle went contrary to his wish, and only because the marshal considered himself instructed by the attorney-general to send him, yet mr. montgomery especially demanded that he (justice field) should be tried for terry's homicide. this, too, in the face of the fact that under instructions from the attorney-general of the state of california, aroused to his duty by the governor, the false, malicious, and infamous charge made against justice field by sarah althea terry was dismissed by the magistrate who had entertained it, on the ground that it was manifestly destitute of the shadow of a foundation, and that any further proceedings against him would be "a burning disgrace to the state." the decision of the circuit court discharging neagle from the custody of the sheriff of san joaquin county was affirmed by the supreme court of the united states on the 14th of april, 1890. justice field did not sit at the hearing of the case, and took no part in its decision, nor did he remain in the conference room with his associate justices at any time while it was being considered or on the bench when it was delivered. the opinion of the court was delivered by justice miller. dissenting opinions were filed by chief justice fuller and justice lamar. justice miller's opinion concludes as follows: "we have thus given, in this case, a most attentive consideration to all the questions of law and fact which we have thought to be properly involved in it. we have felt it to be our duty to examine into the facts with a completeness justified by the importance of the case, as well as from the duty imposed upon us by the statute, which we think requires of us to place ourselves, as far as possible, in the place of the circuit court and to examine the testimony and the arguments in it, and to dispose of the party as law and justice require. "the result at which we have arrived upon this examination is, that in the protection of the person and the life of mr. justice field, while in the discharge of his official duties, neagle was authorized to resist the attack of terry upon him; that neagle was correct in the belief that without prompt action on his part the assault of terry upon the judge would have ended in the death of the latter; that such being his well-founded belief, he was justified in taking the life of terry, as the only means of preventing the death of the man who was intended to be his victim; that in taking the life of terry, under the circumstances, he was acting under the authority of the law of the united states, and was justified in doing so; and that he is not liable to answer in the courts of california on account of his part in that transaction. "we therefore affirm the judgment of the circuit court authorizing his discharge from the custody of the sheriff of san joaquin county." [1] note.--mr. choate took great interest in the question involved--the right of the government of the united states to protect its officers from violence whilst engaged in the discharge of their duties,--deeming its maintenance essential to the efficiency of the government itself; and he declined to make any charge or take any fee for his professional services in the case. the privilege of supporting this great principle before the highest tribunal of the country, where his powers would be most effectively engaged in securing its recognition, was considered by him as sufficient reward. certainly he has that reward in the full establishment of that principle--for which, also, both he and attorney-general miller will receive the thanks of all who love and revere our national government and trust that its existence may be perpetuated. mr. james c. carter, the distinguished advocate of new york, also took a deep interest in the questions involved, and had several consultations with mr. choate upon them; and his professional services were given with the same generous and noble spirit that characterized the course of mr. choate. chapter xxi. concluding observations. thus ends the history of a struggle between brutal violence and the judicial authority of the united states. commencing in a mercenary raid upon a rich man's estate, relying wholly for success on forgery, perjury, and the personal fear of judges, and progressing through more than six years of litigation in both the federal and the state courts, it eventuated in a vindication by the supreme court of the united states of the constitutional power of the federal government, through its executive department, to protect the judges of the united states courts from the revengeful and murderous assaults of defeated litigants, without subjecting its appointed agents to malicious prosecutions for their fidelity to duty, by petty state officials, in league with the assailants. the dignity and the courage of justice field, who made the stand against brute force, and who, refusing either to avoid a great personal danger or to carry a weapon for his defense, trusted his life to that great power which the constitution has placed behind the judicial department for its support, was above all praise. the admirable conduct of the faithful deputy marshal, neagle, in whose small frame the power of a nation dwelt at the moment when, like a modern david, he slew a new goliath, illustrated what one frail mortal can do, who scorns danger when it crosses the path of duty. the prompt action of the executive department, through its attorney-general, in directing the marshal to afford all necessary protection against threatened danger, undoubtedly saved a justice of the supreme court from assassination, and the government from the disgrace of having pusillanimously looked on while the deed was done. the skill and learning of the lawyers who presented the case of neagle in the lower and in the appellate courts reflected honor on the legal profession. the exhaustive and convincing opinion of circuit judge sawyer, when ordering the release of neagle, seemed to have made further argument unnecessary. the grand opinion of justice miller, in announcing the decision of the supreme court affirming the order of the circuit court, was the fitting climax of all. its statement of the facts is the most graphic and vivid of the many that have been written. its vindication of the constitutional right of the federal government to exist, and to preserve itself alive in all its powers, and on every foot of its territory, without leave of, or hindrance by, any other authority, makes it one of the most important of all the utterances of that great tribunal. its power is made the more apparent by the dissent, which rests rather upon the assertion that congress had not legislated in exact terms for the case under consideration, than upon any denial of the power of the federal government to protect its courts from violence. the plausibility of this ground is dissipated by the citations in the majority opinion of the california statute concerning sheriffs, and of the federal statute concerning marshals, by which the latter are invested with all the powers of the sheriffs in the states wherein they reside, thus showing clearly that marshals possess the authority to protect officers of the united states which sheriffs possess to protect officers of the state against criminal assaults of every kind and degree. during the argument in the neagle case, as well as in the public discussions of the subject, much stress was laid by the friends of terry upon the power and duty of the state to afford full protection to all persons within its borders, including the judges of the courts of the united states. they could not see why it was necessary for the attorney-general of the united states to extend the arm of the federal government. they held that the police powers of the state were sufficient for all purposes, and that they were the sole lawful refuge for all whose lives were in danger. but they did not explain why it was that the state never did afford protection to judges field and sawyer, threatened as they notoriously were by two desperate persons. the laws of the state made it the duty of every sheriff to preserve the peace of the state, but the terrys were permitted, undisturbed and unchecked, to proclaim their intention to break the peace. if they had announced their intention, for nearly a year, to assassinate the judges of the supreme court of the state, would they have been permitted to take their lives, before being made to feel the power of the state? would an organized banditti be permitted to unseat state judges by violence, and only feel the strong halter of the law after they had accomplished their purpose? can no preventive measures be taken under the police powers of the state, when ruffians give notice that they are about to obstruct the administration of justice by the murder of high judicial officers? it was not so much to insure the punishment of terry and his wife if they should murder justice field, as to prevent the murder, that the executive branch of the united states government surrounded him with the necessary safeguards. how can justice be administered under the federal statutes if the federal judges must fight their way, while going from district to district, to overcome armed and vindictive litigants who differ with them concerning the judgments they have rendered? but it was said judge terry could have been held to bail to keep the peace. the highest bail that can be required in such cases under the law of the state is five thousand dollars. what restraint would that have been upon terry, who was so filled with malice and so reckless of consequences that he finally braved the gallows by attempting the murder of the object of his hate? but even this weak protection never was afforded. shall it be said that justice field ought to have gone to the nearest justice of the peace and obsequiously begged to have terry placed under bonds? but this he could not have done until he reached the state, and he was in peril from the moment that he reached the state line. the dust had not been brushed from his clothing before some of the papers which announced his arrival eagerly inquired what terry would do and when he would do it. some of them seemed most anxious for the sensation that a murder would produce. the state was active enough when terry had been prevented from doing his bloody work upon justice field. the constable who had been telegraphed for before the train reached lathrop on the fatal day, but who could not be found, and was not at the station to aid in preserving the peace, was quick enough to _arrest neagle without a warrant, for an act not committed in his presence_, and therefore known only to him by hearsay. against the remonstrances of a supreme justice of the united states, who had also been chief justice of california, and who might have been supposed to know the laws as well at least as a constable, the protection placed over him by the executive branch of the federal government was unlawfully taken from him and the protector incarcerated in jail. the constable doubtless did only what he was told and what he believed to be his duty. neagle declined to make any issue with him of a technical character and went with him uncomplainingly. if neagle's pistol had missed fire, or his aim had been false, he might have been arrested on the spot for his attempt to protect justice field, while terry would have been left free at the same time to finish his murderous work then, or to have pursued justice field into the car and, free from all interference by neagle, have despatched him there. the state officials were all activity to protect the would-be murderer, but seemed never to have been ruffled in the least degree over the probable assassination of a justice of the supreme court of the united states. the terrys were never thought to be in any danger. the general belief was that judges field and sawyer were in great danger from them. the death of terry displeased three classes: first, all who were willing to see justice field murdered; second, all who naturally sympathize with the tiger in his hunt for prey, and who thought it a pity that so good a fighter as terry should lose his life in seeking that of another; and, third, all who preferred to see sarah althea enjoy the property of the sharon estate in place of its lawful heirs. it is plain from the foregoing review that the state authorities of california presented no obstruction to terry and his wife as they moved towards the accomplishment of their deadly purpose against justice field. it was the executive arm of the nation operating through the deputy united states marshal, under orders from the department of justice, that prevented the assassination of justice field by david s. terry. * * * * * it only remains to state the result of the second trial of the case between sarah althea hill, now mrs. terry, and the executor of william sharon before the superior court of the city of san francisco. it will be remembered that on the first trial in that court, presided over by judge sullivan, a judgment was entered declaring that miss hill and william sharon had intermarried on the 25th of august, 1880, and had at the time executed a written contract of marriage under the laws of california, and had assumed marital relations and subsequently lived together as husband and wife. from the judgment rendered an appeal was taken to the supreme court of the state. a motion was also made for a new trial in that case, and from the order denying the new trial an appeal was also taken to the supreme court. the decision on the appeal from the judgment resulted in its affirmance. the result of the appeal from the order denying a new trial was its reversal, with a direction for a new trial. the effect of that reversal was to open the whole case. in the meantime william sharon had died and miss hill had married david s. terry. the executor of william sharon, frederick w. sharon, appeared as his representative in the suit, and filed a supplemental answer. the case was tried in the superior court, before judge shafter, in july, 1890, and on the 4th of august following the judge filed his findings and conclusions of law, which were, briefly, as follows: that the plaintiff and william sharon, deceased, did not, on the 25th of august, 1880, or at any other time, consent to intermarry or become, by mutual agreement or otherwise, husband and wife; nor did they, thereafter, or at any time, live or cohabit together as husband and wife, or mutually or otherwise assume marital duties, rights, or obligations; that they did not, on that day or at any other time, in the city and county of san francisco, or elsewhere, jointly or otherwise, make or sign a declaration of marriage in writing or otherwise; and that the declaration of marriage mentioned in the complaint was false, counterfeited, fabricated, forged, and fraudulent, and, therefore, null and void. the conclusion of the court was that the plaintiff and william sharon were not, on august 25, 1880, and never had been husband and wife, and that the plaintiff had no right or claim, legal or equitable, to any property or share in any property, real or personal, of which william sharon was the owner or in possession, or which was then or might thereafter be held by the executor of his last will and testament the defendant, frederick w. sharon. accordingly, judgment was entered for the defendant. an appeal was taken from that judgment to the supreme court of california, and on the 5th of august, 1892, sarah althea terry having become insane pending the appeal, and p.p. ashe, esq., having been appointed and qualified as the general guardian of her person and estate, it was ordered that he be substituted in the case, and that she subsequently appear by him as her guardian. in october following, the appeal was dismissed. thus ended the legal controversy initiated by this adventuress to obtain a part of the estate of the deceased millionaire. file was produced from images generously made available by the posner memorial collection (http://posner.library.cmu.edu/posner/)) [transcriber's note: sir william blackstone's _commentaries on the laws of england_ was first published in 1765-1769. it contains a number of archaic spellings (including "goaler" for "gaoler" and "it's" for "its") that have been preserved as they appear in the original. all such spellings have been verified using the oxford english dictionary. inconsistencies in spelling, punctuation, hyphenation, capitalization, and italicization have also been preserved. obvious printer errors have been preserved and marked with a [transcriber's note]. long s in the original has been modernized as modern s. the archaic convention of placing quotation marks at the beginning of each line of a quotation has also been modernized to quotation marks only at the beginning and end of the quotation.] commentaries on the laws of england. book the first. by william blackstone, esq. vinerian professor of law, and solicitor general to her majesty. oxford, printed at the clarendon press. m. dcc. lxv. to the queen's most excellent majesty, the following view of the laws and constitution of england, the improvement and protection of which have distinguished the reign of her majesty's royal consort, is, with all gratitude and humility, most respectfully inscribed by her dutiful and most obedient servant, william blackstone. preface. _the following sheets contain the substance of a course of lectures on the laws of england, which were read by the author in the university of oxford. his original plan took it's rise in the year 1753: and, notwithstanding the novelty of such an attempt in this age and country, and the prejudices usually conceived against any innovations in the established mode of education, he had the satisfaction to find (and he acknowleges it with a mixture of pride and gratitude) that his endeavours were encouraged and patronized by those, both in the university and out of it, whose good opinion and esteem he was principally desirous to obtain._ _the death of mr viner in 1756, and his ample benefaction to the university for promoting the study of the law, produced about two years afterwards a regular and public establishment of what the author had privately undertaken. the knowlege of our laws and constitution was adopted as a liberal science by general academical authority; competent endowments were decreed for the support of a lecturer, and the perpetual encouragement of students; and the compiler of the ensuing commentaries had the honour to be elected the first vinerian professor._ _in this situation he was led, both by duty and inclination, to investigate the elements of the law, and the grounds of our civil polity, with greater assiduity and attention than many have thought it necessary to do. and yet all, who of late years have attended the public administration of justice, must be sensible that a masterly acquaintance with the general spirit of laws and the principles of universal jurisprudence, combined with an accurate knowlege of our own municipal constitutions, their original, reason, and history, hath given a beauty and energy to many modern judicial decisions, with which our ancestors were wholly unacquainted. if, in the pursuit of these inquiries, the author hath been able to rectify any errors which either himself or others may have heretofore imbibed, his pains will be sufficiently answered: and, if in some points he is still mistaken, the candid and judicious reader will make due allowances for the difficulties of a search so new, so extensive, and so laborious._ _the labour indeed of these researches, and of a regular attention to his duty, for a series of so many years, he hath found inconsistent with his health, as well as his other avocations: and hath therefore desired the university's permission to retire from his office, after the conclusion of the annual course in which he is at present engaged. but the hints, which he had collected for the use of his pupils, having been thought by some of his more experienced friends not wholly unworthy of the public eye, it is therefore with the less reluctance that he now commits them to the press: though probably the little degree of reputation, which their author may have acquired by the candor of an audience (a test widely different from that of a deliberate perusal) would have been better consulted by a total suppression of his lectures;----had that been a matter intirely within his power._ _for the truth is, that the present publication is as much the effect of necessity, as it is of choice. the notes which were taken by his hearers, have by some of them (too partial in his favour) been thought worth revising and transcribing; and these transcripts have been frequently lent to others. hence copies have been multiplied, in their nature imperfect, if not erroneous; some of which have fallen into mercenary hands, and become the object of clandestine sale. having therefore so much reason to apprehend a surreptitious impression, he chose rather to submit his own errors to the world, than to seem answerable for those of other men. and, with this apology, he commits himself to the indulgence of the public._ errata. _page 138, line 15_: _for_ no _read_ an _page 147, (notes) col. 2._ _after_ 1 sid. 1. _add_ see stat. 13 car. ii. c. 7. _page 224, line 14_: _after_ sit _add_ at _page 376, line 6_: _for_ predial _read_ rectorial contents. introduction. sect. i. _on the_ study _of the_ law. page 3. sect. ii. _of the_ nature _of_ laws _in general_. 38. sect. iii. _of the_ laws _of_ england. 63. sect. iv. _of the_ countries _subject to the_ laws _of_ england. 93. book i. _of the_ rights _of_ persons. chap. i. _of the absolute_ rights _of_ individuals. 117. chap. ii. _of the_ parliament. 142. chap. iii. _of the_ king, _and his_ title. 183. chap. iv. _of the_ king's _royal_ family. 212. chap. v. _of the_ councils _belonging to the_ king. 220. chap. vi. _of the_ king's duties. 226. chap. vii. _of the_ king's prerogative. 230. chap. viii. _of the_ king's revenue. 271. chap. ix. _of subordinate_ magistrates. 327. chap. x. _of the_ people, _whether_ aliens, denizens, _or_ natives. 354. chap. xi. _of the_ clergy. 364. chap. xii. _of the_ civil state. 384. chap. xiii. _of the_ military _and_ maritime states. 395. chap. xiv. _of_ master _and_ servant. 410. chap. xv. _of_ husband _and_ wife. 421. chap. xvi. _of_ parent _and_ child. 434. chap. xvii. _of_ guardian _and_ ward. 448. chap. xviii. _of_ corporations. 455. commentaries on the laws of england. introduction. section the first. on the study of the law.[a] [footnote a: read in oxford at the opening of the vinerian lectures; 25 oct. 1758.] mr vice-chancellor, and gentlemen of the university, the general expectation of so numerous and respectable an audience, the novelty, and (i may add) the importance of the duty required from this chair, must unavoidably be productive of great diffidence and apprehensions in him who has the honour to be placed in it. he must be sensible how much will depend upon his conduct in the infancy of a study, which is now first adopted by public academical authority; which has generally been reputed (however unjustly) of a dry and unfruitful nature; and of which the theoretical, elementary parts have hitherto received a very moderate share of cultivation. he cannot but reflect that, if either his plan of instruction be crude and injudicious, or the execution of it lame and superficial, it will cast a damp upon the farther progress of this most useful and most rational branch of learning; and may defeat for a time the public-spirited design of our wise and munificent benefactor. and this he must more especially dread, when he feels by experience how unequal his abilities are (unassisted by preceding examples) to complete, in the manner he could wish, so extensive and arduous a task; since he freely confesses, that his former more private attempts have fallen very short of his own ideas of perfection. and yet the candour he has already experienced, and this last transcendent mark of regard, his present nomination by the free and unanimous suffrage of a great and learned university, (an honour to be ever remembered with the deepest and most affectionate gratitude) these testimonies of your public judgment must entirely supersede his own, and forbid him to believe himself totally insufficient for the labour at least of this employment. one thing he will venture to hope for, and it certainly shall be his constant aim, by diligence and attention to atone for his other defects; esteeming, that the best return, which he can possibly make for your favourable opinion of his capacity, will be his unwearied endeavours in some little degree to deserve it. the science thus committed to his charge, to be cultivated, methodized, and explained in a course of academical lectures, is that of the laws and constitution of our own country: a species of knowlege, in which the gentlemen of england have been more remarkably deficient than those of all europe besides. in most of the nations on the continent, where the civil or imperial law under different modifications is closely interwoven with the municipal laws of the land, no gentleman, or at least no scholar, thinks his education is completed, till he has attended a course or two of lectures, both upon the institutes of justinian and the local constitutions of his native soil, under the very eminent professors that abound in their several universities. and in the northern parts of our own island, where also the municipal laws are frequently connected with the civil, it is difficult to meet with a person of liberal education, who is destitute of a competent knowlege in that science, which is to be the guardian of his natural rights and the rule of his civil conduct. nor have the imperial laws been totally neglected even in the english nation. a general acquaintance with their decisions has ever been deservedly considered as no small accomplishment of a gentleman; and a fashion has prevailed, especially of late, to transport the growing hopes of this island to foreign universities, in switzerland, germany, and holland; which, though infinitely inferior to our own in every other consideration, have been looked upon as better nurseries of the civil, or (which is nearly the same) of their own municipal law. in the mean time it has been the peculiar lot of our admirable system of laws, to be neglected, and even unknown, by all but one practical profession; though built upon the soundest foundations, and approved by the experience of ages. far be it from me to derogate from the study of the civil law, considered (apart from any binding authority) as a collection of written reason. no man is more thoroughly persuaded of the general excellence of it's rules, and the usual equity of it's decisions; nor is better convinced of it's use as well as ornament to the scholar, the divine, the statesman, and even the common lawyer. but we must not carry our veneration so far as to sacrifice our alfred and edward to the manes of theodosius and justinian: we must not prefer the edict of the praetor, or the rescript of the roman emperor, to our own immemorial customs, or the sanctions of an english parliament; unless we can also prefer the despotic monarchy of rome and byzantium, for whose meridians the former were calculated, to the free constitution of britain, which the latter are adapted to perpetuate. without detracting therefore from the real merit which abounds in the imperial law, i hope i may have leave to assert, that if an englishman must be ignorant of either the one or the other, he had better be a stranger to the roman than the english institutions. for i think it an undeniable position, that a competent knowlege of the laws of that society, in which we live, is the proper accomplishment of every gentleman and scholar; an highly useful, i had almost said essential, part of liberal and polite education. and in this i am warranted by the example of antient rome; where, as cicero informs us[a], the very boys were obliged to learn the twelve tables by heart, as a _carmen necessarium_ or indispensable lesson, to imprint on their tender minds an early knowlege of the laws and constitutions of their country. [footnote a: _de legg._ 2. 23.] but as the long and universal neglect of this study, with us in england, seems in some degree to call in question the truth of this evident position, it shall therefore be the business of this introductory discourse, in the first place to demonstrate the utility of some general acquaintance with the municipal law of the land, by pointing out its particular uses in all considerable situations of life. some conjectures will then be offered with regard to the causes of neglecting this useful study: to which will be subjoined a few reflexions on the peculiar propriety of reviving it in our own universities. and, first, to demonstrate the utility of some acquaintance with the laws of the land, let us only reflect a moment on the singular frame and polity of that land, which is governed by this system of laws. a land, perhaps the only one in the universe, in which political or civil liberty is the very end and scope of the constitution[b]. this liberty, rightly understood, consists in the power of doing whatever the laws permit[c]; which is only to be effected by a general conformity of all orders and degrees to those equitable rules of action, by which the meanest individual is protected from the insults and oppression of the greatest. as therefore every subject is interested in the preservation of the laws, it is incumbent upon every man to be acquainted with those at least, with which he is immediately concerned; lest he incur the censure, as well as inconvenience, of living in society without knowing the obligations which it lays him under. and thus much may suffice for persons of inferior condition, who have neither time nor capacity to enlarge their views beyond that contracted sphere in which they are appointed to move. but those, on whom nature and fortune have bestowed more abilities and greater leisure, cannot be so easily excused. these advantages are given them, not for the benefit of themselves only, but also of the public: and yet they cannot, in any scene of life, discharge properly their duty either to the public or themselves, without some degree of knowlege in the laws. to evince this the more clearly, it may not be amiss to descend to a few particulars. [footnote b: montesq. _esp. l._ _l._ 11. _c._ 5.] [footnote c: _facultas ejus, quod cuique facere libet, nisi quid vi, aut jure prohibetur._ _inst._ 1. 3. 1.] let us therefore begin with our gentlemen of independent estates and fortune, the most useful as well as considerable body of men in the nation; whom even to suppose ignorant in this branch of learning is treated by mr locke[d] as a strange absurdity. it is their landed property, with it's long and voluminous train of descents and conveyances, settlements, entails, and incumbrances, that forms the most intricate and most extensive object of legal knowlege. the thorough comprehension of these, in all their minute distinctions, is perhaps too laborious a task for any but a lawyer by profession: yet still the understanding of a few leading principles, relating to estates and conveyancing, may form some check and guard upon a gentleman's inferior agents, and preserve him at least from very gross and notorious imposition. [footnote d: education. â§. 187.] again, the policy of all laws has made some forms necessary in the wording of last wills and testaments, and more with regard to their attestation. an ignorance in these must always be of dangerous consequence, to such as by choice or necessity compile their own testaments without any technical assistance. those who have attended the courts of justice are the best witnesses of the confusion and distresses that are hereby occasioned in families; and of the difficulties that arise in discerning the true meaning of the testator, or sometimes in discovering any meaning at all: so that in the end his estate may often be vested quite contrary to these his enigmatical intentions, because perhaps he has omitted one or two formal words, which are necessary to ascertain the sense with indisputable legal precision, or has executed his will in the presence of fewer witnesses than the law requires. but to proceed from private concerns to those of a more public consideration. all gentlemen of fortune are, in consequence of their property, liable to be called upon to establish the rights, to estimate the injuries, to weigh the accusations, and sometimes to dispose of the lives of their fellow-subjects, by serving upon juries. in this situation they are frequently to decide, and that upon their oaths, questions of nice importance, in the solution of which some legal skill is requisite; especially where the law and the fact, as it often happens, are intimately blended together. and the general incapacity, even of our best juries, to do this with any tolerable propriety has greatly debased their authority; and has unavoidably thrown more power into the hands of the judges, to direct, control, and even reverse their verdicts, than perhaps the constitution intended. but it is not as a juror only that the english gentleman is called upon to determine questions of right, and distribute justice to his fellow-subjects: it is principally with this order of men that the commission of the peace is filled. and here a very ample field is opened for a gentleman to exert his talents, by maintaining good order in his neighbourhood; by punishing the dissolute and idle; by protecting the peaceable and industrious; and, above all, by healing petty differences and preventing vexatious prosecutions. but, in order to attain these desirable ends, it is necessary that the magistrate should understand his business; and have not only the will, but the power also, (under which must be included the knowlege) of administring legal and effectual justice. else, when he has mistaken his authority, through passion, through ignorance, or absurdity, he will be the object of contempt from his inferiors, and of censure from those to whom he is accountable for his conduct. yet farther; most gentlemen of considerable property, at some period or other in their lives, are ambitious of representing their country in parliament: and those, who are ambitious of receiving so high a trust, would also do well to remember it's nature and importance. they are not thus honourably distinguished from the rest of their fellow-subjects, merely that they may privilege their persons, their estates, or their domestics; that they may list under party banners; may grant or with-hold supplies; may vote with or vote against a popular or unpopular administration; but upon considerations far more interesting and important. they are the guardians of the english constitution; the makers, repealers, and interpreters of the english laws; delegated to watch, to check, and to avert every dangerous innovation, to propose, to adopt, and to cherish any solid and well-weighed improvement; bound by every tie of nature, of honour, and of religion, to transmit that constitution and those laws to their posterity, amended if possible, at least without any derogation. and how unbecoming must it appear in a member of the legislature to vote for a new law, who is utterly ignorant of the old! what kind of interpretation can he be enabled to give, who is a stranger to the text upon which he comments! indeed it is really amazing, that there should be no other state of life, no other occupation, art, or science, in which some method of instruction is not looked upon as requisite, except only the science of legislation, the noblest and most difficult of any. apprenticeships are held necessary to almost every art, commercial or mechanical: a long course of reading and study must form the divine, the physician, and the practical professor of the laws: but every man of superior fortune thinks himself _born_ a legislator. yet tully was of a different opinion: "it is necessary, says he[e], for a senator to be thoroughly acquainted with the constitution; and this, he declares, is a knowlege of the most extensive nature; a matter of science, of diligence, of reflexion; without which no senator can possibly be fit for his office." [footnote e: _de legg._ 3. 18. _est senatori necessarium nosse rempublicam; idque late patet:--genus hoc omne scientiae, diligentiae, memoriae est; sine quo paratus esse senator nullo pacto potest._] the mischiefs that have arisen to the public from inconsiderate alterations in our laws, are too obvious to be called in question; and how far they have been owing to the defective education of our senators, is a point well worthy the public attention. the common law of england has fared like other venerable edifices of antiquity, which rash and unexperienced workmen have ventured to new-dress and refine, with all the rage of modern improvement. hence frequently it's symmetry has been destroyed, it's proportions distorted, and it's majestic simplicity exchanged for specious embellishments and fantastic novelties. for, to say the truth, almost all the perplexed questions, almost all the niceties, intricacies, and delays (which have sometimes disgraced the english, as well as other, courts of justice) owe their original not to the common law itself, but to innovations that have been made in it by acts of parliament; "overladen (as sir edward coke expresses it[f]) with provisoes and additions, and many times on a sudden penned or corrected by men of none or very little judgment in law." this great and well-experienced judge declares, that in all his time he never knew two questions made upon rights merely depending upon the common law; and warmly laments the confusion introduced by ill-judging and unlearned legislators. "but if, he subjoins, acts of parliament were after the old fashion penned, by such only as perfectly knew what the common law was before the making of any act of parliament concerning that matter, as also how far forth former statutes had provided remedy for former mischiefs, and defects discovered by experience; then should very few questions in law arise, and the learned should not so often and so much perplex their heads to make atonement and peace, by construction of law, between insensible and disagreeing words, sentences, and provisoes, as they now do." and if this inconvenience was so heavily felt in the reign of queen elizabeth, you may judge how the evil is increased in later times, when the statute book is swelled to ten times a larger bulk; unless it should be found, that the penners of our modern statutes have proportionably better informed themselves in the knowlege of the common law. [footnote f: 2 rep. pref.] what is said of our gentlemen in general, and the propriety of their application to the study of the laws of their country, will hold equally strong or still stronger with regard to the nobility of this realm, except only in the article of serving upon juries. but, instead of this, they have several peculiar provinces of far greater consequence and concern; being not only by birth hereditary counsellors of the crown, and judges upon their honour of the lives of their brother-peers, but also arbiters of the property of all their fellow-subjects, and that in the last resort. in this their judicial capacity they are bound to decide the nicest and most critical points of the law; to examine and correct such errors as have escaped the most experienced sages of the profession, the lord keeper and the judges of the courts at westminster. their sentence is final, decisive, irrevocable: no appeal, no correction, not even a review can be had: and to their determination, whatever it be, the inferior courts of justice must conform; otherwise the rule of property would no longer be uniform and steady. should a judge in the most subordinate jurisdiction be deficient in the knowlege of the law, it would reflect infinite contempt upon himself and disgrace upon those who employ him. and yet the consequence of his ignorance is comparatively very trifling and small: his judgment may be examined, and his errors rectified, by other courts. but how much more serious and affecting is the case of a superior judge, if without any skill in the laws he will boldly venture to decide a question, upon which the welfare and subsistence of whole families may depend! where the chance of his judging right, or wrong, is barely equal; and where, if he chances to judge wrong, he does an injury of the most alarming nature, an injury without possibility of redress! yet, vast as this trust is, it can no where be so properly reposed as in the noble hands where our excellent constitution has placed it: and therefore placed it, because, from the independence of their fortune and the dignity of their station, they are presumed to employ that leisure which is the consequence of both, in attaining a more extensive knowlege of the laws than persons of inferior rank: and because the founders of our polity relied upon that delicacy of sentiment, so peculiar to noble birth; which, as on the one hand it will prevent either interest or affection from interfering in questions of right, so on the other it will bind a peer in honour, an obligation which the law esteems equal to another's oath, to be master of those points upon which it is his birthright to decide. the roman pandects will furnish us with a piece of history not unapplicable to our present purpose. servius sulpicius, a gentleman of the patrician order, and a celebrated orator, had occasion to take the opinion of quintus mutius scaevola, the oracle of the roman law; but for want of some knowlege in that science, could not so much as understand even the technical terms, which his friend was obliged to make use of. upon which mutius scaevola could not forbear to upbraid him with this memorable reproof[g], "that it was a shame for a patrician, a nobleman, and an orator of causes, to be ignorant of that law in which he was so peculiarly concerned." this reproach made so deep an impression on sulpicius, that he immediately applied himself to the study of the law; wherein he arrived to that proficiency, that he left behind him about a hundred and fourscore volumes of his own compiling upon the subject; and became, in the opinion of cicero[h], a much more complete lawyer than even mutius scaevola himself. [footnote g: _ff._ 1. 2. 2. â§. 43. _turpe esse patricio, & nobili, & causas oranti, jus in quo versaretur ignorare._] [footnote h: _brut._ 41.] i would not be thought to recommend to our english nobility and gentry to become as great lawyers as sulpicius; though he, together with this character, sustained likewise that of an excellent orator, a firm patriot, and a wise indefatigable senator; but the inference which arises from the story is this, that ignorance of the laws of the land hath ever been esteemed dishonourable, in those who are entrusted by their country to maintain, to administer, and to amend them. but surely there is little occasion to enforce this argument any farther to persons of rank and distinction, if we of this place may be allowed to form a general judgment from those who are under our inspection: happy, that while we lay down the rule, we can also produce the example. you will therefore permit your professor to indulge both a public and private satisfaction, by bearing this open testimony; that in the infancy of these studies among us, they were favoured with the most diligent attendance, and pursued with the most unwearied application, by those of the noblest birth and most ample patrimony: some of whom are still the ornaments of this seat of learning; and others at a greater distance continue doing honour to it's institutions, by comparing our polity and laws with those of other kingdoms abroad, or exerting their senatorial abilities in the councils of the nation at home. nor will some degree of legal knowlege be found in the least superfluous to persons of inferior rank; especially those of the learned professions. the clergy in particular, besides the common obligations they are under in proportion to their rank and fortune, have also abundant reason, considered merely as clergymen, to be acquainted with many branches of the law, which are almost peculiar and appropriated to themselves alone. such are the laws relating to advowsons, institutions, and inductions; to simony, and simoniacal contracts; to uniformity, residence, and pluralities; to tithes and other ecclesiastical dues; to marriages (more especially of late) and to a variety of other subjects, which are consigned to the care of their order by the provisions of particular statutes. to understand these aright, to discern what is warranted or enjoined, and what is forbidden by law, demands a sort of legal apprehension; which is no otherwise to be acquired than by use and a familiar acquaintance with legal writers. for the gentlemen of the faculty of physic, i must frankly own that i see no special reason, why they in particular should apply themselves to the study of the law; unless in common with other gentlemen, and to complete the character of general and extensive knowlege; a character which their profession, beyond others, has remarkably deserved. they will give me leave however to suggest, and that not ludicrously, that it might frequently be of use to families upon sudden emergencies, if the physician were acquainted with the doctrine of last wills and testaments, at least so far as relates to the formal part of their execution. but those gentlemen who intend to profess the civil and ecclesiastical laws in the spiritual and maritime courts of this kingdom, are of all men (next to common lawyers) the most indispensably obliged to apply themselves seriously to the study of our municipal laws. for the civil and canon laws, considered with respect to any intrinsic obligation, have no force or authority in this kingdom; they are no more binding in england than our laws are binding at rome. but as far as these foreign laws, on account of some peculiar propriety, have in some particular cases, and in some particular courts, been introduced and allowed by our laws, so far they oblige, and no farther; their authority being wholly founded upon that permission and adoption. in which we are not singular in our notions; for even in holland, where the imperial law is much cultivated and it's decisions pretty generally followed, we are informed by van leeuwen[i], that, "it receives it's force from custom and the consent of the people, either tacitly or expressly given: for otherwise, he adds, we should no more be bound by this law, than by that of the almains, the franks, the saxons, the goths, the vandals, and other of the antient nations." wherefore, in all points in which the different systems depart from each other, the law of the land takes place of the law of rome, whether antient or modern, imperial or pontificial. and in those of our english courts wherein a reception has been allowed to the civil and canon laws, if either they exceed the bounds of that reception, by extending themselves to other matters, than are permitted to them; or if such courts proceed according to the decisions of those laws, in cases wherein it is controlled by the law of the land, the common law in either instance both may, and frequently does, prohibit and annul their proceedings[k]: and it will not be a sufficient excuse for them to tell the king's courts at westminster, that their practice is warranted by the laws of justinian or gregory, or is conformable to the decrees of the rota or imperial chamber. for which reason it becomes highly necessary for every civilian and canonist that would act with safety as a judge, or with prudence and reputation as an advocate, to know in what cases and how far the english laws have given sanction to the roman; in what points the latter are rejected; and where they are both so intermixed and blended together, as to form certain supplemental parts of the common law of england, distinguished by the titles of the king's maritime, the king's military, and the king's ecclesiastical law. the propriety of which enquiry the university of oxford has for more than a century so thoroughly seen, that in her statutes[l] she appoints, that one of the three questions to be annually discussed at the act by the jurist-inceptors shall relate to the common law; subjoining this reason, "_quia juris civilis studiosos decet haud imperitos esse juris municipalis, & differentias exteri patriique juris notas habere_." and the statutes[m] of the university of cambridge speak expressly to the same effect. [footnote i: _dedicatio corporis juris civilis._ _edit._ 1663.] [footnote k: hale. hist. c.l. c. 2. selden _in fletam_. 5 rep. caudrey's case. 2 inst. 599.] [footnote l: _tit. vii. sect._ 2. â§. 2.] [footnote m: _doctor legum mox a doctoratu dabit operam legibus angliae, ut non sit imperitus earum legum quas habet sua patria, et differentias exteri patriique juris noscat._ _stat._ eliz. _r._ _c._ 14. cowel. _institut. in proã«mio._] from the general use and necessity of some acquaintance with the common law, the inference were extremely easy, with regard to the propriety of the present institution, in a place to which gentlemen of all ranks and degrees resort, as the fountain of all useful knowlege. but how it has come to pass that a design of this sort has never before taken place in the university, and the reason why the study of our laws has in general fallen into disuse, i shall previously proceed to enquire. sir john fortescue, in his panegyric on the laws of england, (which was written in the reign of henry the sixth) puts[n] a very obvious question in the mouth of the young prince, whom he is exhorting to apply himself to that branch of learning; "why the laws of england, being so good, so fruitful, and so commodious, are not taught in the universities, as the civil and canon laws are?" in answer to which he gives[o] what seems, with due deference be it spoken, a very jejune and unsatisfactory reason; being in short, that "as the proceedings at common law were in his time carried on in three different tongues, the english, the latin, and the french, that science must be necessarily taught in those three several languages; but that in the universities all sciences were taught in the latin tongue only; and therefore he concludes, that they could not be conveniently taught or studied in our universities." but without attempting to examine seriously the validity of this reason, (the very shadow of which by the wisdom of your late constitutions is entirely taken away) we perhaps may find out a better, or at least a more plausible account, why the study of the municipal laws has been banished from these seats of science, than what the learned chancellor thought it prudent to give to his royal pupil. [footnote n: _c._ 47.] [footnote o: _c._ 48.] that antient collection of unwritten maxims and customs, which is called the common law, however compounded or from whatever fountains derived, had subsisted immemorially in this kingdom; and, though somewhat altered and impaired by the violence of the times, had in great measure weathered the rude shock of the norman conquest. this had endeared it to the people in general, as well because it's decisions were universally known, as because it was found to be excellently adapted to the genius of the english nation. in the knowlege of this law consisted great part of the learning of those dark ages; it was then taught, says mr selden[p], in the monasteries, _in the universities_, and in the families of the principal nobility. the clergy in particular, as they then engrossed almost every other branch of learning, so (like their predecessors the british druids[q]) they were peculiarly remarkable for their proficiency in the study of the law. _nullus clericus nisi causidicus_, is the character given of them soon after the conquest by william of malmsbury[r]. the judges therefore were usually created out of the sacred order[s], as was likewise the case among the normans[t]; and all the inferior offices were supplied by the lower clergy, which has occasioned their successors to be denominated _clerks_ to this day. [footnote p: _in fletam._ 7. 7.] [footnote q: caesar _de bello gal._ 6. 12.] [footnote r: _de gest. reg._ _l._ 4.] [footnote s: dugdale _orig. jurid._ _c._ 8.] [footnote t: _les juges sont sages personnes & autentiques,--sicome les archevesques, evesques, les chanoines les eglises cathedraulx, & les autres personnes qui ont dignitez in saincte eglise; les abbez, les prieurs conventaulx, & les gouverneurs des eglises, &c._ _grand coustumier_, _ch._ 9.] but the common law of england, being not committed to writing, but only handed down by tradition, use, and experience, was not so heartily relished by the foreign clergy; who came over hither in shoals during the reign of the conqueror and his two sons, and were utter strangers to our constitution as well as our language. and an accident, which soon after happened, had nearly completed it's ruin. a copy of justinian's pandects, being newly[u] discovered at amalfi, soon brought the civil law into vogue all over the west of europe, where before it was quite laid aside[w] and in a manner forgotten; though some traces of it's authority remained in italy[x] and the eastern provinces of the empire[y]. this now became in a particular manner the favourite of the popish clergy, who borrowed the method and many of the maxims of their canon law from this original. the study of it was introduced into several universities abroad, particularly that of bologna; where exercises were performed, lectures read, and degrees conferred in this faculty, as in other branches of science: and many nations on the continent, just then beginning to recover from the convulsions consequent upon the overthrow of the roman empire, and settling by degrees into peaceable forms of government, adopted the civil law, (being the best written system then extant) as the basis of their several constitutions; blending and interweaving it among their own feodal customs, in some places with a more extensive, in others a more confined authority[z]. [footnote u: _circ. a.d._ 1130.] [footnote w: _ll. wisigoth._ 2. 1. 9.] [footnote x: _capitular. hludov. pii._ 4. 102.] [footnote y: selden _in fletam._ 5. 5.] [footnote z: domat's treatise of laws. c. 13. â§. 9. _epistol. innocent. iv. in m. paris. ad a.d._ 1254.] nor was it long before the prevailing mode of the times reached england. for theobald, a norman abbot, being elected to the see of canterbury[a], and extremely addicted to this new study, brought over with him in his retinue many learned proficients therein; and among the rest roger sirnamed vacarius, whom he placed in the university of oxford[b], to teach it to the people of this country. but it did not meet with the same easy reception in england, where a mild and rational system of laws had been long established, as it did upon the continent; and, though the monkish clergy (devoted to the will of a foreign primate) received it with eagerness and zeal, yet the laity who were more interested to preserve the old constitution, and had already severely felt the effect of many norman innovations, continued wedded to the use of the common law. king stephen immediately published a proclamation[c], forbidding the study of the laws, then newly imported from italy; which was treated by the monks[d] as a piece of impiety, and, though it might prevent the introduction of the civil law process into our courts of justice, yet did not hinder the clergy from reading and teaching it in their own schools and monasteries. [footnote a: _a.d._ 1138.] [footnote b: gervas. dorobern. _act. pontif. cantuar. col._ 1665.] [footnote c: rog. bacon. _citat. per_ selden. _in fletam._ 7. 6. _in fortesc._ _c._ 33. & 8 rep. pref.] [footnote d: joan. sarisburiens. _polycrat._ 8. 22.] from this time the nation seems to have been divided into two parties; the bishops and clergy, many of them foreigners, who applied themselves wholly to the study of the civil and canon laws, which now came to be inseparably interwoven with each other; and the nobility and laity, who adhered with equal pertinacity to the old common law; both of them reciprocally jealous of what they were unacquainted with, and neither of them perhaps allowing the opposite system that real merit which is abundantly to be found in each. this appears on the one hand from the spleen with which the monastic writers[e] speak of our municipal laws upon all occasions; and, on the other, from the firm temper which the nobility shewed at the famous parliament of merton; when the prelates endeavoured to procure an act, to declare all bastards legitimate in case the parents intermarried at any time afterwards; alleging this only reason, because holy church (that is, the canon law) declared such children legitimate: but "all the earls and barons (says the parliament roll[f]) with one voice answered, that they would not change the laws of england, which had hitherto been used and approved." and we find the same jealousy prevailing above a century afterwards[g], when the nobility declared with a kind of prophetic spirit, "that the realm of england hath never been unto this hour, neither by the consent of our lord the king and the lords of parliament shall it ever be, ruled or governed by the civil law[h]." and of this temper between the clergy and laity many more instances might be given. [footnote e: _idem, ibid._ 5. 16. polydor. vergil. _hist._ _l._ 9.] [footnote f: _stat. merton._ 20 _hen. iii._ _c._ 9. _et omnes comites & barones una voce responderunt, quod nolunt leges angliae mutare, quae hucusque usitatae sunt & approbatae._] [footnote g: 11 ric. ii.] [footnote h: selden. _jan. anglor._ _l._ 2. â§. 43. _in fortesc._ _c._ 33.] while things were in this situation, the clergy, finding it impossible to root out the municipal law, began to withdraw themselves by degrees from the temporal courts; and to that end, very early in the reign of king henry the third, episcopal constitutions were published[i], forbidding all ecclesiastics to appear as advocates _in foro saeculari_; nor did they long continue to act as judges there, nor caring to take the oath of office which was then found necessary to be administred, that they should in all things determine according to the law and custom of this realm[k]; though they still kept possession of the high office of chancellor, an office then of little juridical power; and afterwards, as it's business increased by degrees, they modelled the process of the court at their own discretion. [footnote i: spelman. _concil. a.d._ 1217. wilkins, _vol._ 1. _p._ 574, 599.] [footnote k: selden. _in fletam._ 9. 3.] but wherever they retired, and wherever their authority extended, they carried with them the same zeal to introduce the rules of the civil, in exclusion of the municipal law. this appears in a particular manner from the spiritual courts of all denominations, from the chancellor's courts in both our universities, and from the high court of chancery before-mentioned; in all of which the proceedings are to this day in a course much conformed to the civil law: for which no tolerable reason can be assigned, unless that these courts were all under the immediate direction of the popish ecclesiastics, among whom it was a point of religion to exclude the municipal law; pope innocent the fourth having[l] forbidden the very reading of it by the clergy, because it's decisions were not founded on the imperial constitutions, but merely on the customs of the laity. and if it be considered, that our universities began about that period to receive their present form of scholastic discipline; that they were then, and continued to be till the time of the reformation, entirely under the influence of the popish clergy; (sir john mason the first protestant, being also the first lay, chancellor of oxford) this will lead us to perceive the reason, why the study of the roman laws was in those days of bigotry[m] pursued with such alacrity in these seats of learning; and why the common law was entirely despised, and esteemed little better than heretical. [footnote l: m. paris _ad a.d._ 1254.] [footnote m: there cannot be a stronger instance of the absurd and superstitious veneration that was paid to these laws, than that the most learned writers of the times thought they could not form a perfect character, even of the blessed virgin, without making her a civilian and a canonist. which albertus magnus, the renowned dominican doctor of the thirteenth century, thus proves in his _summa de laudibus christiferae virginis (divinum magis quam humanum opus)_ _qu._ 23. â§. 5. "_item quod jura civilia, & leges, & decreta scivit in summo, probatur hoc modo: sapientia advocati manifestatur in tribus; unum, quod obtineat omnia contra judicem justum & sapientem; secundo, quod contra adversarium astutum & sagacem; tertio, quod in causa desperata: sed beatissima virgo, contra judicem sapientissimum, dominum; contra adversarium callidissimum, dyabolum; in causa nostra desperata; sententiam optatam obtinuit._" to which an eminent franciscan, two centuries afterwards, bernardinus de busti (_mariale_, _part._ 4. _serm._ 9.) very gravely subjoins this note. "_nec videtur incongruum mulieres habere peritiam juris. legitur enim de uxore joannis andreae glossatoris, quod tantam peritiam in utroque jure habuit, ut publice in scholis legere ausa sit._"] and, since the reformation, many causes have conspired to prevent it's becoming a part of academical education. as, first, long usage and established custom; which, as in every thing else, so especially in the forms of scholastic exercise, have justly great weight and authority. secondly, the real intrinsic merit of the civil law, considered upon the footing of reason and not of obligation, which was well known to the instructors of our youth; and their total ignorance of the merit of the common law, though it's equal at least, and perhaps an improvement on the other. but the principal reason of all, that has hindered the introduction of this branch of learning, is, that the study of the common law, being banished from hence in the times of popery, has fallen into a quite different chanel, and has hitherto been wholly cultivated in another place. but as this long usage and established custom, of ignorance in the laws of the land, begin now to be thought unreasonable; and as by this means the merit of those laws will probably be more generally known; we may hope that the method of studying them will soon revert to it's antient course, and the foundations at least of that science will be laid in the two universities; without being exclusively confined to the chanel which it fell into at the times i have been just describing. for, being then entirely abandoned by the clergy, a few stragglers excepted, the study and practice of it devolved of course into the hands of laymen; who entertained upon their parts a most hearty aversion to the civil law[n], and made no scruple to profess their contempt, nay even their ignorance[o] of it, in the most public manner. but still, as the ballance of learning was greatly on the side of the clergy, and as the common law was no longer _taught_, as formerly, in any part of the kingdom, it must have been subjected to many inconveniences, and perhaps would have been gradually lost and overrun by the civil, (a suspicion well justified from the frequent transcripts of justinian to be met with in bracton and fleta) had it not been for a peculiar incident, which happened at a very critical time, and contributed greatly to it's support. [footnote n: fortesc. _de laud. ll._ _c._ 25.] [footnote o: this remarkably appeared in the case of the abbot of torun, _m._ 22 _e._ 3. 24. who had caused a certain prior to be summoned to answer at avignon for erecting an oratory _contra inhibitionem novi operis_; by which words mr selden, (_in flet._ 8. 5.) very justly understands to be meant the title _de novi operis nuntiatione_ both in the civil and canon laws, (_ff._ 39. 1. _c._ 8. 11. and _decretal._ not _extrav._ 5. 32.) whereby the erection of any new buildings in prejudice of more antient ones was prohibited. but skipwith the king's serjeant, and afterwards chief baron of the exchequer, declares them to be flat nonsense; "_in ceux parolx_, contra inhibitionem novi operis, _ny ad pas entendment_:" and justice schardelow mends the matter but little by informing him, that they signify a restitution _in their law_; for which reason he very sagely resolves to pay no sort of regard to them. "_ceo n'est que un restitution en lour ley, pur que a ceo n'avomus regard, &c._"] the incident i mean was the fixing the court of common pleas, the grand tribunal for disputes of property, to be held in one certain spot; that the seat of ordinary justice might be permanent and notorious to all the nation. formerly that, in conjunction with all the other superior courts, was held before the king's capital justiciary of england, in the _aula regis_, or such of his palaces wherein his royal person resided; and removed with his houshold from one end of the kingdom to the other. this was found to occasion great inconvenience to the suitors; to remedy which it was made an article of the great charter of liberties, both that of king john and king henry the third[p], that "common pleas should no longer follow the king's court, but be held in some certain place:" in consequence of which they have ever since been held (a few necessary removals in times of the plague excepted) in the palace of westminster only. this brought together the professors of the municipal law, who before were dispersed about the kingdom, and formed them into an aggregate body; whereby a society was established of persons, who (as spelman[q] observes) addicting themselves wholly to the study of the laws of the land, and no longer considering it as a mere subordinate science for the amusement of leisure hours, soon raised those laws to that pitch of perfection, which they suddenly attained under the auspices of our english justinian, king edward the first. [footnote p: _c._ 11.] [footnote q: _glossar._ 334.] in consequence of this lucky assemblage, they naturally fell into a kind of collegiate order, and, being excluded from oxford and cambridge, found it necessary to establish a new university of their own. this they did by purchasing at various times certain houses (now called the inns of court and of chancery) between the city of westminster, the place of holding the king's courts, and the city of london; for advantage of ready access to the one, and plenty of provisions in the other[r]. here exercises were performed, lectures read, and degrees were at length conferred in the common law, as at other universities in the canon and civil. the degrees were those of barristers (first stiled apprentices[s] from _apprendre_, to learn) who answered to our bachelors; as the state and degree of a serjeant[t], _servientis ad legem_, did to that of doctor. [footnote r: fortesc. _c._ 48.] [footnote s: apprentices or barristers seem to have been first appointed by an ordinance of king edward the first in parliament, in the 20th year of his reign. (spelm. _gloss._ 37. dugdale. _orig. jurid._ 55.)] [footnote t: the first mention i have met with in our lawbooks of serjeants or countors, is in the statute of westm. 1. 3 edw. i. c. 29. and in horn's mirror, _c._ 1. â§. 10. _c._ 2. â§. 5. _c._ 3. â§. 1. in the same reign. but m. paris in his life of john ii, abbot of st. alban's, which he wrote in 1255, 39 hen. iii. speaks of advocates at the common law, or countors (_quos banci narratores vulgariter appellamus_) as of an order of men well known. and we have an example of the antiquity of the coif in the same author's history of england, _a.d._ 1259. in the case of one william de bussy; who, being called to account for his great knavery and malpractices, claimed the benefit of his orders or clergy, which till then remained an entire secret; and to that end _voluit ligamenta coifae suae solvere, ut palam monstraret se tonsuram habere clericalem; sed non est permissus.----satelles vero eum arripiens, non per coifae ligamina sed per guttur eum apprehendens, traxit ad carcerem_. and hence sir h. spelman conjectures, (_glossar._ 335.) that coifs were introduced to hide the tonsure of such renegade clerks, as were still tempted to remain in the secular courts in the quality of advocates or judges, notwithstanding their prohibition by canon.] the crown seems to have soon taken under it's protection this infant seminary of common law; and, the more effectually to foster and cherish it, king henry the third in the nineteenth year of his reign issued out an order directed to the mayor and sheriffs of london, commanding that no regent of any law schools _within_ that city should for the future teach law therein[u]. the word, law, or _leges_, being a general term, may create some doubt at this distance of time whether the teaching of the civil law, or the common, or both, is hereby restrained. but in either case it tends to the same end. if the civil law only is prohibited, (which is mr selden's[w] opinion) it is then a retaliation upon the clergy, who had excluded the common law from _their_ seats of learning. if the municipal law be also included in the restriction, (as sir edward coke[x] understands it, and which the words seem to import) then the intention is evidently this; by preventing private teachers within the walls of the city, to collect all the common lawyers into the one public university, which was newly instituted in the suburbs. [footnote u: _ne aliquis scholas regens de legibus in eadem civitate de caetero ibidem leges doceat._] [footnote w: _in flet._ 8. 2.] [footnote x: 2 inst. proã«m.] in this juridical university (for such it is insisted to have been by fortescue[y] and sir edward coke[z]) there are two sorts of collegiate houses; one called inns of chancery, in which the younger students of the law were usually placed, "learning and studying, says fortescue[a], the originals and as it were the elements of the law; who, profiting therein, as they grow to ripeness so are they admitted into the greater inns of the same study, called the inns of court." and in these inns of both kinds, he goes on to tell us, the knights and barons, with other grandees and noblemen of the realm, did use to place their children, though they did not desire to have them thoroughly learned in the law, or to get their living by it's practice: and that in his time there were about two thousand students at these several inns, all of whom he informs us were _filii nobilium_, or gentlemen born. [footnote y: _c._ 49.] [footnote z: 3 rep. pref.] [footnote a: _ibid._] hence it is evident, that (though under the influence of the monks our universities neglected this study, yet) in the time of henry the sixth it was thought highly necessary and was the universal practice, for the young nobility and gentry to be instructed in the originals and elements of the laws. but by degres [transcriber's note: degrees] this custom has fallen into disuse; so that in the reign of queen elizabeth sir edward coke[b] does not reckon above a thousand students, and the number at present is very considerably less. which seems principally owing to these reasons: first, because the inns of chancery being now almost totally filled by the inferior branch of the profession, they are neither commodious nor proper for the resort of gentlemen of any rank or figure; so that there are now very rarely any young students entered at the inns of chancery: secondly, because in the inns of court all sorts of regimen and academical superintendance, either with regard to morals or studies, are found impracticable and therefore entirely neglected: lastly, because persons of birth and fortune, after having finished their usual courses at the universities, have seldom leisure or resolution sufficient to enter upon a new scheme of study at a new place of instruction. wherefore few gentlemen now resort to the inns of court, but such for whom the knowlege of practice is absolutely necessary; such, i mean, as are intended for the profession: the rest of our gentry, (not to say our nobility also) having usually retired to their estates, or visited foreign kingdoms, or entered upon public life, without any instruction in the laws of the land; and indeed with hardly any opportunity of gaining instruction, unless it can be afforded them in these seats of learning. [footnote b: _ibid._] and that these are the proper places, for affording assistances of this kind to gentlemen of all stations and degrees, cannot (i think) with any colour of reason be denied. for not one of the objections, which are made to the inns of court and chancery, and which i have just enumerated, will hold with regard to the universities. gentlemen may here associate with gentlemen of their own rank and degree. nor are their conduct and studies left entirely to their own discretion; but regulated by a discipline so wise and exact, yet so liberal, so sensible and manly, that their conformity to it's rules (which does at present so much honour to our youth) is not more the effect of constraint, than of their own inclinations and choice. neither need they apprehend too long an avocation hereby from their private concerns and amusements, or (what is a more noble object) the service of their friends and their country. this study will go hand in hand with their other pursuits: it will obstruct none of them; it will ornament and assist them all. but if, upon the whole, there are any still wedded to monastic prejudice, that can entertain a doubt how far this study is properly and regularly _academical_, such persons i am afraid either have not considered the constitution and design of an university, or else think very meanly of it. it must be a deplorable narrowness of mind, that would confine these seats of instruction to the limited views of one or two learned professions. to the praise of this age be it spoken, a more open and generous way of thinking begins now universally to prevail. the attainment of liberal and genteel accomplishments, though not of the intellectual sort, has been thought by our wisest and most affectionate patrons[c], and very lately by the whole university[d], no small improvement of our antient plan of education; and therefore i may safely affirm that nothing (how _unusual_ soever) is, under due regulations, improper to be _taught_ in this place, which is proper for a gentleman to _learn_. but that a science, which distinguishes the criterions of right and wrong; which teaches to establish the one, and prevent, punish, or redress the other; which employs in it's theory the noblest faculties of the soul, and exerts in it's practice the cardinal virtues of the heart; a science, which is universal in it's use and extent, accommodated to each individual, yet comprehending the whole community; that a science like this should have ever been deemed unnecessary to be studied in an university, is matter of astonishment and concern. surely, if it were not before an object of academical knowlege, it was high time to make it one; and to those who can doubt the propriety of it's reception among us (if any such there be) we may return an answer in their own way; that ethics are confessedly a branch of academical learning, and aristotle _himself has said_, speaking of the laws of his own country, that jurisprudence or the knowlege of those laws is the principal and most[e] perfect branch of ethics. [footnote c: lord chancellor clarendon, in his dialogue of education, among his tracts, p. 325. appears to have been very solicitous, that it might be made "a part of the ornament of our learned academies to teach the qualities of riding, dancing, and fencing, at those hours when more serious exercises should be intermitted."] [footnote d: by accepting in full convocation the remainder of lord clarendon's history from his noble descendants, on condition to apply the profits arising from it's publication to the establishment of a _manage_ in the university.] [footnote e: [greek: teleia malista aretãª, hoti tãªs teleias aretãªs chrãªsis esti.] _ethic. ad nicomach._ _l._ 5. _c._ 3.] from a thorough conviction of this truth, our munificent benefactor mr viner, having employed above half a century in amassing materials for new modelling and rendering more commodious the rude study of the laws of the land, consigned both the plan and execution of these his public-spirited designs to the wisdom of his parent university. resolving to dedicate his learned labours "to the benefit of posterity and the perpetual service of his country[f]," he was sensible he could not perform his resolutions in a better and more effectual manner, than by extending to the youth of this place those assistances, of which he so well remembered and so heartily regretted the want. and the sense, which the university has entertained of this ample and most useful benefaction, must appear beyond a doubt from their gratitude in receiving it with all possible marks of esteem[g]; from their alacrity and unexampled dispatch in carrying it into execution[h]; and, above all, from the laws and constitutions by which they have effectually guarded it from the neglect and abuse to which such institutions are liable[i]. we have seen an universal emulation, who best should understand, or most faithfully pursue, the designs of our generous patron: and with pleasure we recollect, that those who are most distinguished by their quality, their fortune, their station, their learning, or their experience, have appeared the most zealous to promote the success of mr viner's establishment. [footnote f: see the preface to the eighteenth volume of his abridgment.] [footnote g: mr viner is enrolled among the public benefactors of the university by decree of convocation.] [footnote h: mr viner died june 5, 1756. his effects were collected and settled, near a volume of his work printed, almost the whole disposed of, and the accounts made up, in a year and a half from his decease, by the very diligent and worthy administrators with the will annexed, (dr west and dr good of magdalene, dr whalley of oriel, mr buckler of all souls, and mr betts of university college) to whom that care was consigned by the university. another half year was employed in considering and settling a plan of the proposed institution, and in framing the statutes thereupon, which were finally confirmed by convocation on the 3d of july, 1758. the professor was elected on the 20th of october following, and two scholars on the succeeding day. and, lastly, it was agreed at the annual audit in 1761, to establish a fellowship; and a fellow was accordingly elected in january following.--the residue of this fund, arising from the sale of mr viner's abridgment, will probably be sufficient hereafter to found another fellowship and scholarship, or three more scholarships, as shall be thought most expedient.] [footnote i: the statutes are in substance as follows: 1. that the accounts of this benefaction be separately kept, and annually audited by the delegates of accounts and professor, and afterwards reported to convocation. 2. that a professorship of the laws of england be established, with a salary of two hundred pounds _per annum_; the professor to be elected by convocation, and to be at the time of his election at least a master of arts or bachelor of civil law in the university of oxford, of ten years standing from his matriculation; and also a barrister at law of four years standing at the bar. 3. that such professor (by himself, or by deputy to be previously approved by convocation) do read one solemn public lecture on the laws of england, and in the english language, in every academical term, at certain stated times previous to the commencement of the common law term; or forfeit twenty pounds for every omission to mr viner's general fund: and also (by himself, or by deputy to be approved, if occasional, by the vice-chancellor and proctors; or, if permanent, both the cause and the deputy to be annually approved by convocation) do yearly read one complete course of lectures on the laws of england, and in the english language, consisting of sixty lectures at the least, to be read during the university term time, with such proper intervals that not more than four lectures may fall within any single week: that the professor do give a month's notice of the time when the course is to begin, and do read _gratis_ to the scholars of mr viner's foundation; but may demand of other auditors such gratuity as shall be settled from time to time by decree of convocation: and that, for every of the said sixty lectures omitted, the professor, on complaint made to the vice-chancellor within the year, do forfeit forty shillings to mr viner's general fund; the proof of having performed his duty to lie upon the said professor. 4. that every professor do continue in his office during life, unless in case of such misbehaviour as shall amount to bannition by the university statutes; or unless he deserts the profession of the law by betaking himself to another profession; or unless, after one admonition by the vice-chancellor and proctors for notorious neglect, he is guilty of another flagrant omission: in any of which cases he be deprived by the vice-chancellor, with consent of the house of convocation. 5. that such a number of fellowships with a stipend of fifty pounds _per annum_, and scholarships with a stipend of thirty pounds be established, as the convocation shall from time to time ordain, according to the state of mr viner's revenues. 6. that every fellow be elected by convocation, and at the time of election be unmarried, and at least a master of arts or bachelor of civil law, and a member of some college or hall in the university of oxford; the scholars of this foundation or such as have been scholars (if qualified and approved of by convocation) to have the preference: that, if not a barrister when chosen, he be called to the bar within one year after his election; but do reside in the university two months in every year, or in case of non-residence do forfeit the stipend of that year to mr viner's general fund. 7. that every scholar be elected by convocation, and at the time of election be unmarried, and a member of some college or hall in the university of oxford, who shall have been matriculated twenty four calendar months at the least: that he do take the degree of bachelor of civil law with all convenient speed; (either proceeding in arts or otherwise) and previous to his taking the same, between the second and eighth year from his matriculation, be bound to attend two courses of the professor's lectures, to be certified under the professor's hand; and within one year after taking the same be called to the bar: that he do annually reside six months till he is of four years standing, and four months from that time till he is master of arts or bachelor of civil law; after which he be bound to reside two months in every year; or, in case of non-residence, do forfeit the stipend of that year to mr viner's general fund. 8. that the scholarships do become void in case of non-attendance on the professor, or not taking the degree of bachelor of civil law, being duly admonished so to do by the vice-chancellor and proctors: and that both fellowships and scholarships do expire at the end of ten years after each respective election; and become void in case of gross misbehaviour, non-residence for two years together, marriage, not being called to the bar within the time before limited, (being duly admonished so to be by the vice-chancellor and proctors) or deserting the profession of the law by following any other profession: and that in any of these cases the vice-chancellor, with consent of convocation, do declare the place actually void. 9. that in case of any vacancy of the professorship, fellowships, or scholarships, the profits of the current year be ratably divided between the predecessor or his representatives, and the successor; and that a new election be had within one month afterwards, unless by that means the time of election shall fall within any vacation, in which case it be deferred to the first week in the next full term. and that before any convocation shall be held for such election, or for any other matter relating to mr viner's benefaction, ten days public notice be given to each college and hall of the convocation, and the cause of convoking it.] the advantages that might result to the science of the law itself, when a little more attended to in these seats of knowlege, perhaps would be very considerable. the leisure and abilities of the learned in these retirements might either suggest expedients, or execute those dictated by wiser heads[k], for improving it's method, retrenching it's superfluities, and reconciling the little contrarieties, which the practice of many centuries will necessarily create in any human system: a task, which those who are deeply employed in business, and the more active scenes of the profession, can hardly condescend to engage in. and as to the interest, or (which is the same) the reputation of the universities themselves, i may venture to pronounce, that if ever this study should arrive to any tolerable perfection either here or at cambridge, the nobility and gentry of this kingdom would not shorten their residence upon this account, nor perhaps entertain a worse opinion of the benefits of academical education. neither should it be considered as a matter of light importance, that while we thus extend the _pomoeria_ of university learning, and adopt a new tribe of citizens within these philosophical walls, we interest a very numerous and very powerful profession in the preservation of our rights and revenues. [footnote k: see lord bacon's proposals and offer of a digest.] for i think it is past dispute that those gentlemen, who resort to the inns of court with a view to pursue the profession, will find it expedient (whenever it is practicable) to lay the previous foundations of this, as well as every other science, in one of our learned universities. we may appeal to the experience of every sensible lawyer, whether any thing can be more hazardous or discouraging than the usual entrance on the study of the law. a raw and unexperienced youth, in the most dangerous season of life, is transpanted [transcriber's note: transplanted] on a sudden into the midst of allurements to pleasure, without any restraint or check but what his own prudence can suggest; with no public direction in what course to pursue his enquiries; no private assistance to remove the distresses and difficulties, which will always embarass a beginner. in this situation he is expected to sequester himself from the world, and by a tedious lonely process to extract the theory of law from a mass of undigested learning; or else by an assiduous attendance on the courts to pick up theory and practice together, sufficient to qualify him for the ordinary run of business. how little therefore is it to be wondered at, that we hear of so frequent miscarriages; that so many gentlemen of bright imaginations grow weary of so unpromising a search[l], and addict themselves wholly to amusements, or other less innocent pursuits; and that so many persons of moderate capacity confuse themselves at first setting out, and continue ever dark and puzzled during the remainder of their lives! [footnote l: sir henry spelman, in the preface to his glossary, gives us a very lively picture of his own distress upon this occasion. "_emisit me mater londinum, juris nostri capessendi gratia; cujus cum vestibulum salutassem, reperissemque linguam peregrinam, dialectum barbaram, methodum inconcinnam, molem non ingentem solum sed perpetuis humeris sustinendam, excidit mihi (fateor) animus, &c._"] the evident want of some assistance in the rudiments of legal knowlege, has given birth to a practice, which, if ever it had grown to be general, must have proved of extremely pernicious consequence: i mean the custom, by some so very warmly recommended, to drop all liberal education, as of no use to lawyers; and to place them, in it's stead, as [transcriber's note: at] the desk of some skilful attorney; in order to initiate them early in all the depths of practice, and render them more dextrous in the mechanical part of business. a few instances of particular persons, (men of excellent learning, and unblemished integrity) who, in spight of this method of education, have shone in the foremost ranks of the bar, have afforded some kind of sanction to this illiberal path to the profession, and biassed many parents, of shortsighted judgment, in it's favour: not considering, that there are some geniuses, formed to overcome all disadvantages, and that from such particular instances no general rules can be formed; nor observing, that those very persons have frequently recommended by the most forcible of all examples, the disposal of their own offspring, a very different foundation of legal studies, a regular academical education. perhaps too, in return, i could now direct their eyes to our principal seats of justice, and suggest a few hints, in favour of university learning[m]:--but in these all who hear me, i know, have already prevented me. [footnote m: the four highest offices in the law were at that time filled by gentlemen, two of whom had been fellows of all souls college; another, student of christ-church; and the fourth a fellow of trinity college, cambridge.] making therefore due allowance for one or two shining exceptions, experience may teach us to foretell that a lawyer thus educated to the bar, in subservience to attorneys and solicitors[n], will find he has begun at the wrong end. if practice be the whole he is taught, practice must also be the whole he will ever know: if he be uninstructed in the elements and first principles upon which the rule of practice is founded, the least variation from established precedents will totally distract and bewilder him: _ita lex scripta est_[o] is the utmost his knowlege will arrive at; he must never aspire to form, and seldom expect to comprehend, any arguments drawn _a priori_, from the spirit of the laws and the natural foundations of justice. [footnote n: see kennet's life of somner. p. 67.] [footnote o: _ff._ 40. 9. 12.] nor is this all; for (as few persons of birth, or fortune, or even of scholastic education, will submit to the drudgery of servitude and the manual labour of copying the trash of an office) should this infatuation prevail to any considerable degree, we must rarely expect to see a gentleman of distinction or learning at the bar. and what the consequence may be, to have the interpretation and enforcement of the laws (which include the entire disposal of our properties, liberties, and lives) fall wholly into the hands of obscure or illiterate men, is matter of very public concern. the inconveniences here pointed out can never be effectually prevented, but by making academical education a previous step to the profession of the common law, and at the same time making the rudiments of the law a part of academical education. for sciences are of a sociable disposition, and flourish best in the neighbourhood of each other: nor is there any branch of learning, but may be helped and improved by assistances drawn from other arts. if therefore the student in our laws hath formed both his sentiments and style, by perusal and imitation of the purest classical writers, among whom the historians and orators will best deserve his regard; if he can reason with precision, and separate argument from fallacy, by the clear simple rules of pure unsophisticated logic; if he can fix his attention, and steadily pursue truth through any the most intricate deduction, by the use of mathematical demonstrations; if he has enlarged his conceptions of nature and art, by a view of the several branches of genuine, experimental, philosophy; if he has impressed on his mind the sound maxims of the law of nature, the best and most authentic foundation of human laws; if, lastly, he has contemplated those maxims reduced to a practical system in the laws of imperial rome; if he has done this or any part of it, (though all may be easily done under as able instructors as ever graced any seats of learning) a student thus qualified may enter upon the study of the law with incredible advantage and reputation. and if, at the conclusion, or during the acquisition of these accomplishments, he will afford himself here a year or two's farther leisure, to lay the foundation of his future labours in a solid scientifical method, without thirsting too early to attend that practice which it is impossible he should rightly comprehend, he will afterwards proceed with the greatest ease, and will unfold the most intricate points with an intuitive rapidity and clearness. i shall not insist upon such motives as might be drawn from principles of oeconomy, and are applicable to particulars only: i reason upon more general topics. and therefore to the qualities of the head, which i have just enumerated, i cannot but add those of the heart; affectionate loyalty to the king, a zeal for liberty and the constitution, a sense of real honour, and well grounded principles of religion; as necessary to form a truly valuable english lawyer, a hyde, a hale, or a talbot. and, whatever the ignorance of some, or unkindness of others, may have heretofore untruly suggested, experience will warrant us to affirm, that these endowments of loyalty and public spirit, of honour and religion, are no where to be found in more high perfection than in the two universities of this kingdom. before i conclude, it may perhaps be expected, that i lay before you a short and general account of the method i propose to follow, in endeavouring to execute the trust you have been pleased to repose in my hands. and in these solemn lectures, which are ordained to be read at the entrance of every term, (more perhaps to do public honour to this laudable institution, than for the private instruction of individuals[p]) i presume it will best answer the intent of our benefactor and the expectation of this learned body, if i attempt to illustrate at times such detached titles of the law, as are the most easy to be understood, and most capable of historical or critical ornament. but in reading the complete course, which is annually consigned to my care, a more regular method will be necessary; and, till a better is proposed, i shall take the liberty to follow the same that i have already submitted to the public[q]. to fill up and finish that outline with propriety and correctness, and to render the whole intelligible to the uninformed minds of beginners, (whom we are too apt to suppose acquainted with terms and ideas, which they never had opportunity to learn) this must be my ardent endeavour, though by no means my promise to accomplish. you will permit me however very briefly to describe, rather what i conceive an academical expounder of the laws should do, than what i have ever known to be done. [footnote p: see lowth's _oratio crewiana_, p. 365.] [footnote q: the analysis of the laws of england, first published, _a.d._ 1756, and exhibiting the order and principal divisions of the ensuing commentaries; which were originally submitted to the university in a private course of lectures, _a.d._ 1753.] he should consider his course as a general map of the law, marking out the shape of the country, it's connexions and boundaries, it's greater divisions and principal cities: it is not his business to describe minutely the subordinate limits, or to fix the longitude and latitude of every inconsiderable hamlet. his attention should be engaged, like that of the readers in fortescue's inns of chancery, "in tracing out the originals and as it were the elements of the law." for if, as justinian[r] has observed, the tender understanding of the student be loaded at the first with a multitude and variety of matter, it will either occasion him to desert his studies, or will carry him heavily through them, with much labour, delay, and despondence. these originals should be traced to their fountains, as well as our distance will permit; to the customs of the britons and germans, as recorded by caesar and tacitus; to the codes of the northern nations on the continent, and more especially to those of our own saxon princes; to the rules of the roman law, either left here in the days of papinian, or imported by vacarius and his followers; but, above all, to that inexhaustible reservoir of legal antiquities and learning, the feodal law, or, as spelman[s] has entitled it, the law of nations in our western orb. these primary rules and fundamental principles should be weighed and compared with the precepts of the law of nature, and the practice of other countries; should be explained by reasons, illustrated by examples, and confirmed by undoubted authorities; their history should be deduced, their changes and revolutions observed, and it should be shewn how far they are connected with, or have at any time been affected by, the civil transactions of the kingdom. [footnote r: _incipientibus nobis exponere jura populi romani, ita videntur tradi posse commodissime, si primo levi ac simplici via singula tradantur: alioqui, si statim ab initio rudem adhuc & infirmum animum studiosi multitudine ac varietate rerum oneravimus, duorum alterum, aut desertorem studiorum efficiemus, aut cum magno labore, saepe etiam cum diffidentia (quae plerumque juvenes avertit) serius ad id perducemus, ad quod leviore via ductus, sine magno labore & sine ulla diffidentia maturius perduci potuisset._ _inst._ 1. 1. 2.] [footnote s: of parliaments. 57.] a plan of this nature, if executed with care and ability, cannot fail of administring a most useful and rational entertainment to students of all ranks and professions; and yet it must be confessed that the study of the laws is not merely a matter of amusement: for as a very judicious writer[t] has observed upon a similar occasion, the learner "will be considerably disappointed if he looks for entertainment without the expence of attention." an attention, however, not greater than is usually bestowed in mastering the rudiments of other sciences, or sometimes in pursuing a favorite recreation or exercise. and this attention is not equally necessary to be exerted by every student upon every occasion. some branches of the law, as the formal process of civil suits, and the subtile distinctions incident to landed property, which are the most difficult to be thoroughly understood, are the least worth the pains of understanding, except to such gentlemen as intend to pursue the profession. to others i may venture to apply, with a slight alteration, the words of sir john fortescue[u], when first his royal pupil determines to engage in this study. "it will not be necessary for a gentleman, as such, to examine with a close application the critical niceties of the law. it will fully be sufficient, and he may well enough be denominated a lawyer, if under the instruction of a master he traces up the principles and grounds of the law, even to their original elements. therefore in a very short period, and with very little labour, he may be sufficiently informed in the laws of his country, if he will but apply his mind in good earnest to receive and apprehend them. for, though such knowlege as is necessary for a judge is hardly to be acquired by the lucubrations of twenty years, yet with a genius of tolerable perspicacity, that knowlege which is fit for a person of birth or condition may be learned in a single year, without neglecting his other improvements." [footnote t: dr taylor's preface to elem. of civil law.] [footnote u: _tibi, princeps, necesse non erit mysteria legis angliae longo disciplinatu rimare. sufficiet tibi,--_et fatis _denominari legista mereberis, si legum principia & causas, usque ad elementa, discipuli more indagaveris.--quare tu, princeps serenissime, parvo tempore, parva industria, sufficienter eris in legibus regni angliae eruditus, dummodo ad ejus apprehensionem tu conferas animum tuum.--nosco namque ingenii tui perspicacitatem, quo audacter pronuntio quod in legibus illis (licet earum peritia, qualis judicibus necessaria est, vix viginti annorum lucubrationibus acquiratur) tu doctrinam principi congruam in anno uno sufficienter nancisceris; nec interim militarem disciplinam, ad quam tam ardenter anhelas, negliges; sed ea, recreationis loco, etiam anno illo tu ad libitum perfrueris._ _c._ 8.] to the few therefore (the very few, i am persuaded,) that entertain such unworthy notions of an university, as to suppose it intended for mere dissipation of thought; to such as mean only to while away the aukward interval from childhood to twenty one, between the restraints of the school and the licentiousness of politer life, in a calm middle state of mental and of moral inactivity; to these mr viner gives no invitation to an entertainment which they never can relish. but to the long and illustrious train of noble and ingenuous youth, who are not more distinguished among us by their birth and possessions, than by the regularity of their conduct and their thirst after useful knowlege, to these our benefactor has consecrated the fruits of a long and laborious life, worn out in the duties of his calling; and will joyfully reflect (if such reflexions can be now the employment of his thoughts) that he could not more effectually have benefited posterity, or contributed to the service of the public, than by founding an institution which may instruct the rising generation in the wisdom of our civil polity, and inform them with a desire to be still better acquainted with the laws and constitution of their country. section the second. of the nature of laws in general. law, in it's most general and comprehensive sense, signifies a rule of action; and is applied indiscriminately to all kinds of action, whether animate, or inanimate, rational or irrational. thus we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. and it is that rule of action, which is prescribed by some superior, and which the inferior is bound to obey. thus when the supreme being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be. when he put that matter into motion, he established certain laws of motion, to which all moveable bodies must conform. and, to descend from the greatest operations to the smallest, when a workman forms a clock, or other piece of mechanism, he establishes at his own pleasure certain arbitrary laws for it's direction; as that the hand shall describe a given space in a given time; to which law as long as the work conforms, so long it continues in perfection, and answers the end of it's formation. if we farther advance, from mere inactive matter to vegetable and animal life, we shall find them still governed by laws; more numerous indeed, but equally fixed and invariable. the whole progres of plants, from the seed to the root, and from thence to the seed again;--the method of animal nutrition, digestion, secretion, and all other branches of vital oeconomy;--are not left to chance, or the will of the creature itself, but are performed in a wondrous involuntary manner, and guided by unerring rules laid down by the great creator. this then is the general signification of law, a rule of action dictated by some superior being; and in those creatures that have neither the power to think, nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for it's existence depends on that obedience. but laws, in their more confined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of _human_ action or conduct: that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and freewill, is commanded to make use of those faculties in the general regulation of his behaviour. man, considered as a creature, must necessarily be subject to the laws of his creator, for he is entirely a dependent being. a being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependance will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct: not indeed in every particular, but in all those points wherein his dependance consists. this principle therefore has more or less extent and effect, in proportion as the superiority of the one and the dependance of the other is greater or less, absolute or limited. and consequently as man depends absolutely upon his maker for every thing, it is necessary that he should in all points conform to his maker's will. this will of his maker is called the law of nature. for as god, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws. considering the creator only as a being of infinite _power_, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. but as he is also a being of infinite _wisdom_, he has laid down only such laws as were founded in those relations of justice, that existed in the nature of things antecedent to any positive precept. these are the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one it's due; to which three general precepts justinian[a] has reduced the whole doctrine of law. [footnote a: _juris praecepta sunt haec, honeste vivere, alterum non laedere, suum cuique tribuere._ _inst._ 1. 1. 3.] but if the discovery of these first principles of the law of nature depended only upon the due exertion of right reason, and could not otherwise be attained than by a chain of metaphysical disquisitions, mankind would have wanted some inducement to have quickened their inquiries, and the greater part of the world would have rested content in mental indolence, and ignorance it's inseparable companion. as therefore the creator is a being, not only of infinite _power_, and _wisdom_, but also of infinite _goodness_, he has been pleased so to contrive the constitution and frame of humanity, that we should want no other prompter to enquire after and pursue the rule of right, but only our own self-love, that universal principle of action. for he has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter. in consequence of which mutual connection of justice and human felicity, he has not perplexed the law of nature with a multitude of abstracted rules and precepts, referring merely to the fitness or unfitness of things, as some have vainly surmised; but has graciously reduced the rule of obedience to this one paternal precept, "that man should pursue his own happiness." this is the foundation of what we call ethics, or natural law. for the several articles into which it is branched in our systems, amount to no more than demonstrating, that this or that action tends to man's real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destructive of man's real happiness, and therefore that the law of nature forbids it. this law of nature, being co-eval with mankind and dictated by god himself, is of course superior in obligation to any other. it is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original. but in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to reason; whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life; by considering, what method will tend the most effectually to our own substantial happiness. and if our reason were always, as in our first ancestor before his transgression, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be pleasant and easy; we should need no other guide but this. but every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error. this has given manifold occasion for the benign interposition of divine providence; which, in companion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in divers manners, to discover and enforce it's laws by an immediate and direct revelation. the doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. these precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity. but we are not from thence to conclude that the knowlege of these truths was attainable by reason, in it's present corrupted state; since we find that, until they were revealed, they were hid from the wisdom of ages. as then the moral precepts of this law are indeed of the same original with those of the law of nature, so their intrinsic obligation is of equal strength and perpetuity. yet undoubtedly the revealed law is (humanly speaking) of infinitely more authority than what we generally call the natural law. because one is the law of nature, expressly declared so to be by god himself; the other is only what, by the assistance of human reason, we imagine to be that law. if we could be as certain of the latter as we are of the former, both would have an equal authority; but, till then, they can never be put in any competition together. upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. there is, it is true, a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found necessary for the benefit of society to be restrained within certain limits. and herein it is that human laws have their greatest force and efficacy; for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former. to instance in the case of murder: this is expressly forbidden by the divine, and demonstrably by the natural law; and from these prohibitions arises the true unlawfulness of this crime. those human laws, that annex a punishment to it, do not at all increase it's moral guilt, or superadd any fresh obligation _in foro conscientiae_ to abstain from it's perpetration. nay, if any human law should allow or injoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine. but with regard to matters that are in themselves indifferent, and are not commanded or forbidden by those superior laws; such, for instance, as exporting of wool into foreign countries; here the inferior legislature has scope and opportunity to interpose, and to make that action unlawful which before was not so. if man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws, than the law of nature, and the law of god. neither could any other law possibly exist; for a law always supposes some superior who is to make it; and in a state of nature we are all equal, without any other superior but him who is the author of our being. but man was formed for society; and, as is demonstrated by the writers on this subject[b], is neither capable of living alone, nor indeed has the courage to do it. however, as it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many; and form separate states, commonwealths, and nations; entirely independent of each other, and yet liable to a mutual intercourse. hence arises a third kind of law to regulate this mutual intercourse, called "the law of nations;" which, as none of these states will acknowlege a superiority in the other, cannot be dictated by either; but depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements between these several communities: in the construction also of which compacts we have no other rule to resort to, but the law of nature; being the only one to which both communities are equally subject: and therefore the civil law[c] very justly observes, that _quod naturalis ratio inter omnes homines constituit, vocatur jus gentium_. [footnote b: puffendorf, _l._ 7. _c._ 1. compared with barbeyrac's commentary.] [footnote c: _ff._ 1. 1. 9.] thus much i thought it necessary to premise concerning the law of nature, the revealed law, and the law of nations, before i proceeded to treat more fully of the principal subject of this section, municipal or civil law; that is, the rule by which particular districts, communities, or nations are governed; being thus defined by justinian[d], "_jus civile est quod quisque sibi populus constituit_." i call it _municipal_ law, in compliance with common speech; for, tho' strictly that expression denotes the particular customs of one single _municipium_ or free town, yet it may with sufficient propriety be applied to any one state or nation, which is governed by the same laws and customs. [footnote d: _inst._ 1. 2. 1.] municipal law, thus understood, is properly defined to be "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong." let us endeavour to explain it's several properties, as they arise out of this definition. and, first, it is a _rule_; not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal. therefore a particular act of the legislature to confiscate the goods of titius, or to attaint him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon titius only, and has no relation to the community in general; it is rather a sentence than a law. but an act to declare that the crime of which titius is accused shall be deemed high treason; this has permanency, uniformity, and universality, and therefore is properly a _rule_. it is also called a _rule_, to distinguish it from _advice_ or _counsel_, which we are at liberty to follow or not, as we see proper; and to judge upon the reasonableness or unreasonableness of the thing advised. whereas our obedience to the _law_ depends not upon _our approbation_, but upon the _maker's will_. counsel is only matter of persuasion, law is matter of injunction; counsel acts only upon the willing, law upon the unwilling also. it is also called a _rule_, to distinguish it from a _compact_ or _agreement_; for a compact is a promise proceeding _from_ us, law is a command directed _to_ us. the language of a compact is, "i will, or will not, do this;" that of a law is, "thou shalt, or shalt not, do it." it is true there is an obligation which a compact carries with it, equal in point of conscience to that of a law; but then the original of the obligation is different. in compacts, we ourselves determine and promise what shall be done, before we are obliged to do it; in laws, we are obliged to act, without ourselves determining or promising any thing at all. upon these accounts law is defined to be "_a rule_." municipal law is also "a rule _of civil conduct_." this distinguishes municipal law from the natural, or revealed; the former of which is the rule of _moral_ conduct, and the latter not only the rule of moral conduct, but also the rule of faith. these regard man as a creature, and point out his duty to god, to himself, and to his neighbour, considered in the light of an individual. but municipal or civil law regards him also as a citizen, and bound to other duties towards his neighbour, than those of mere nature and religion: duties, which he has engaged in by enjoying the benefits of the common union; and which amount to no more, than that he do contribute, on his part, to the subsistence and peace of the society. it is likewise "a rule _prescribed_." because a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. it is requisite that this resolution be notified to the people who are to obey it. but the manner in which this notification is to be made, is matter of very great indifference. it may be notified by universal tradition and long practice, which supposes a previous publication, and is the case of the common law of england. it may be notified, _viva voce_, by officers appointed for that purpose, as is done with regard to proclamations, and such acts of parliament as are appointed to be publicly read in churches and other assemblies. it may lastly be notified by writing, printing, or the like; which is the general course taken with all our acts of parliament. yet, whatever way is made use of, it is incumbent on the promulgators to do it in the most public and perspicuous manner; not like caligula, who (according to dio cassius) wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to ensnare the people. there is still a more unreasonable method than this, which is called making of laws _ex post facto_; when _after_ an action is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it; here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law; he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust[e]. all laws should be therefore made to commence _in futuro_, and be notified before their commencement; which is implied in the term "_prescribed_." but when this rule is in the usual manner notified, or prescribed, it is then the subject's business to be thoroughly acquainted therewith; for if ignorance, of what he _might_ know, were admitted as a legitimate excuse, the laws would be of no effect, but might always be eluded with impunity. [footnote e: such laws among the romans were denominated _privilegia_, or private laws, of which cicero _de leg._ 3. 19. and in his oration _pro domo_, 17. thus speaks; "_vetant leges sacratae, vetant duodecim tabulae, leges privatis hominibus irrogari; id enim est privilegium. nemo unquam tulit, nihil est crudelius, nihil perniciosius, nihil quod minus haec civitas ferre possit_."] but farther: municipal law is "a rule of civil conduct prescribed _by the supreme power in a state_." for legislature, as was before observed, is the greatest act of superiority that can be exercised by one being over another. wherefore it is requisite to the very essence of a law, that it be made by the supreme power. sovereignty and legislature are indeed convertible terms; one cannot subsist without the other. this will naturally lead us into a short enquiry concerning the nature of society and civil government; and the natural, inherent right that belongs to the sovereignty of a state, wherever that sovereignty be lodged, of making and enforcing laws. the only true and natural foundations of society are the wants and the fears of individuals. not that we can believe, with some theoretical writers, that there ever was a time when there was no such thing as society; and that, from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chose the tallest man present to be their governor. this notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted; and besides it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their preservation two thousand years afterwards; both which were effected by the means of single families. these formed the first society, among themselves; which every day extended it's limits, and when it grew too large to subsist with convenience in that pastoral state, wherein the patriarchs appear to have lived, it necessarily subdivided itself by various migrations into more. afterwards, as agriculture increased, which employs and can maintain a much greater number of hands, migrations became less frequent; and various tribes, which had formerly separated, re-united again; sometimes by compulsion and conquest, sometimes by accident, and sometimes perhaps by compact. but though society had not it's formal beginning from any convention of individuals, actuated by their wants and their fears; yet it is the _sense_ of their weakness and imperfection that _keeps_ mankind together; that demonstrates the necessity of this union; and that therefore is the solid and natural foundation, as well as the cement, of society. and this is what we mean by the original contract of society; which, though perhaps in no instance it has ever been formally expressed at the first institution of a state, yet in nature and reason must always be understood and implied, in the very act of associating together: namely, that the whole should protect all it's parts, and that every part should pay obedience to the will of the whole; or, in other words, that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community; without which submission of all it was impossible that protection could be certainly extended to any. for when society is once formed, government results of course, as necessary to preserve and to keep that society in order. unless some superior were constituted, whose commands and decisions all the members are bound to obey, they would still remain as in a state of nature, without any judge upon earth to define their several rights, and redress their several wrongs. but, as all the members of society are naturally equal, it may be asked, in whose hands are the reins of government to be entrusted? to this the general answer is easy; but the application of it to particular cases has occasioned one half of those mischiefs which are apt to proceed from misguided political zeal. in general, all mankind will agree that government should be reposed in such persons, in whom those qualities are most likely to be found, the perfection of which are among the attributes of him who is emphatically stiled the supreme being; the three grand requisites, i mean, of wisdom, of goodness, and of power: wisdom, to discern the real interest of the community; goodness, to endeavour always to pursue that real interest; and strength, or power, to carry this knowlege and intention into action. these are the natural foundations of sovereignty, and these are the requisites that ought to be found in every well constituted frame of government. how the several forms of government we now see in the world at first actually began, is matter of great uncertainty, and has occasioned infinite disputes. it is not my business or intention to enter into any of them. however they began, or by what right soever they subsist, there is and must be in all of them a supreme, irresistible, absolute, uncontrolled authority, in which the _jura summi imperii_, or the rights of sovereignty, reside. and this authority is placed in those hands, wherein (according to the opinion of the founders of such respective states, either expressly given, or collected from their tacit approbation) the qualities requisite for supremacy, wisdom, goodness, and power, are the most likely to be found. the political writers of antiquity will not allow more than three regular forms of government; the first, when the sovereign power is lodged in an aggregate assembly consisting of all the members of a community, which is called a democracy; the second, when it is lodged in a council, composed of select members, and then it is stiled an aristocracy; the last, when it is entrusted in the hands of a single person, and then it takes the name of a monarchy. all other species of government, they say, are either corruptions of, or reducible to, these three. by the sovereign power, as was before observed, is meant the making of laws; for wherever that power resides, all others must conform to, and be directed by it, whatever appearance the outward form and administration of the government may put on. for it is at any time in the option of the legislature to alter that form and administration by a new edict or rule, and to put the execution of the laws into whatever hands it pleases: and all the other powers of the state must obey the legislative power in the execution of their several functions, or else the constitution is at an end. in a democracy, where the right of making laws resides in the people at large, public virtue, or goodness of intention, is more likely to be found, than either of the other qualities of government. popular assemblies are frequently foolish in their contrivance, and weak in their execution; but generally mean to do the thing that is right and just, and have always a degree of patriotism or public spirit. in aristocracies there is more wisdom to be found, than in the other frames of government; being composed, or intended to be composed, of the most experienced citizens; but there is less honesty than in a republic, and less strength than in a monarchy. a monarchy is indeed the most powerful of any, all the sinews of government being knit together, and united in the hand of the prince; but then there is imminent danger of his employing that strength to improvident or oppressive purposes. thus these three species of government have, all of them, their several perfections and imperfections. democracies are usually the best calculated to direct the end of a law; aristocracies to invent the means by which that end shall be obtained; and monarchies to carry those means into execution. and the antients, as was observed, had in general no idea of any other permanent form of government but these three; for though cicero[f] declares himself of opinion, "_esse optime constitutam rempublicam, quae ex tribus generibus illis, regali, optimo, et populari, sit modice confusa_;" yet tacitus treats this notion of a mixed government, formed out of them all, and partaking of the advantages of each, as a visionary whim; and one that, if effected, could never be lasting or secure[g]. [footnote f: in his fragments _de rep._ _l._ 2.] [footnote g: "_cunctas nationes et urbes populus, aut primores, aut singuli regunt: delecta ex his, et constituta reipublicae forma laudari facilius quam evenire, vel, si evenit, haud diuturna esse potest._" _ann._ _l._ 4.] but happily for us of this island, the british constitution has long remained, and i trust will long continue, a standing exception to the truth of this observation. for, as with us the executive power of the laws is lodged in a single person, they have all the advantages of strength and dispatch, that are to be found in the most absolute monarchy; and, as the legislature of the kingdom is entrusted to three distinct powers, entirely independent of each other; first, the king; secondly, the lords spiritual and temporal, which is an aristocratical assembly of persons selected for their piety, their birth, their wisdom, their valour, or their property; and, thirdly, the house of commons, freely chosen by the people from among themselves, which makes it a kind of democracy; as this aggregate body, actuated by different springs, and attentive to different interests, composes the british parliament, and has the supreme disposal of every thing; there can no inconvenience be attempted by either of the three branches, but will be withstood by one of the other two; each branch being armed with a negative power, sufficient to repel any innovation which it shall think inexpedient or dangerous. here then is lodged the sovereignty of the british constitution; and lodged as beneficially as is possible for society. for in no other shape could we be so certain of finding the three great qualities of government so well and so happily united. if the supreme power were lodged in any one of the three branches separately, we must be exposed to the inconveniences of either absolute monarchy, aristocracy, or democracy; and so want two of the three principal ingredients of good polity, either virtue, wisdom, or power. if it were lodged in any two of the branches; for instance, in the king and house of lords, our laws might be providently made, and well executed, but they might not always have the good of the people in view: if lodged in the king and commons, we should want that circumspection and mediatory caution, which the wisdom of the peers is to afford: if the supreme rights of legislature were lodged in the two houses only, and the king had no negative upon their proceedings, they might be tempted to encroach upon the royal prerogative, or perhaps to abolish the kingly office, and thereby weaken (if not totally destroy) the strength of the executive power. but the constitutional government of this island is so admirably tempered and compounded, that nothing can endanger or hurt it, but destroying the equilibrium of power between one branch of the legislature and the rest. for if ever it should happen that the independence of any one of the three should be lost, or that it should become subservient to the views of either of the other two, there would soon be an end of our constitution. the legislature would be changed from that, which was originally set up by the general consent and fundamental act of the society; and such a change, however effected, is according to mr locke[h] (who perhaps carries his theory too far) at once an entire dissolution of the bands of government; and the people would be reduced to a state of anarchy, with liberty to constitute to themselves a new legislative power. [footnote h: on government, part 2. â§. 212.] having thus cursorily considered the three usual species of government, and our own singular constitution, selected and compounded from them all, i proceed to observe, that, as the power of making laws constitutes the supreme authority, so wherever the supreme authority in any state resides, it is the right of that authority to make laws; that is, in the words of our definition, _to prescribe the rule of civil action_. and this may be discovered from the very end and institution of civil states. for a state is a collective body, composed of a multitude of individuals, united for their safety and convenience, and intending to act together as one man. if it therefore is to act as one man, it ought to act by one uniform will. but, inasmuch as political communities are made up of many natural persons, each of whom has his particular will and inclination, these several wills cannot by any _natural_ union be joined together, or tempered and disposed into a lasting harmony, so as to constitute and produce that one uniform will of the whole. it can therefore be no otherwise produced than by a _political_ union; by the consent of all persons to submit their own private wills to the will of one man, or of one or more assemblies of men, to whom the supreme authority is entrusted: and this will of that one man, or assemblage of men, is in different states, according to their different constitutions, understood to be _law_. thus far as to the _right_ of the supreme power to make laws; but farther, it is it's _duty_ likewise. for since the respective members are bound to conform themselves to the will of the state, it is expedient that they receive directions from the state declaratory of that it's will. but since it is impossible, in so great a multitude, to give injunctions to every particular man, relative to each particular action, therefore the state establishes general rules, for the perpetual information and direction of all persons in all points, whether of positive or negative duty. and this, in order that every man may know what to look upon as his own, what as another's; what absolute and what relative duties are required at his hands; what is to be esteemed honest, dishonest, or indifferent; what degree every man retains of his natural liberty; what he has given up as the price of the benefits of society; and after what manner each person is to moderate the use and exercise of those rights which the state assigns him, in order to promote and secure the public tranquillity. from what has been advanced, the truth of the former branch of our definition, is (i trust) sufficiently evident; that "_municipal law is a rule of civil conduct prescribed by the supreme power in a state_." i proceed now to the latter branch of it; that it is a rule so prescribed, "_commanding what is right, and prohibiting what is wrong_." now in order to do this completely, it is first of all necessary that the boundaries of right and wrong be established and ascertained by law. and when this is once done, it will follow of course that it is likewise the business of the law, considered as a rule of civil conduct, to enforce these rights and to restrain or redress these wrongs. it remains therefore only to consider in what manner the law is said to ascertain the boundaries of right and wrong; and the methods which it takes to command the one and prohibit the other. for this purpose every law may be said to consist of several parts: one, _declaratory_; whereby the rights to be observed, and the wrongs to be eschewed, are clearly defined and laid down: another, _directory_, whereby the subject is instructed and enjoined to observe those rights, and to abstain from the commission of those wrongs: a third, _remedial_; whereby a method is pointed out to recover a man's private rights, or redress his private wrongs: to which may be added a fourth, usually termed the _sanction_, or _vindicatory_ branch of the law; whereby it is signified what evil or penalty shall be incurred by such as commit any public wrongs, and transgress or neglect their duty. with regard to the first of these, the _declaratory_ part of the municipal law, this depends not so much upon the law of revelation or of nature, as upon the wisdom and will of the legislator. this doctrine, which before was slightly touched, deserves a more particular explication. those rights then which god and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable. on the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture. neither do divine or natural _duties_ (such as, for instance, the worship of god, the maintenance of children, and the like) receive any stronger sanction from being also declared to be duties by the law of the land. the case is the same as to crimes and misdemesnors, that are forbidden by the superior laws, and therefore stiled _mala in se_, such as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legislature. for that legislature in all these cases acts only, as was before observed, in subordination to the great lawgiver, transcribing and publishing his precepts. so that, upon the whole, the declaratory part of the municipal law has no force or operation at all, with regard to actions that are naturally and intrinsically right or wrong. but with regard to things in themselves indifferent, the case is entirely altered. these become either right or wrong, just or unjust, duties or misdemesnors, according as the municipal legislator sees proper, for promoting the welfare of the society, and more effectually carrying on the purposes of civil life. thus our own common law has declared, that the goods of the wife do instantly upon marriage become the property and right of the husband; and our statute law has declared all monopolies a public offence: yet that right, and this offence, have no foundation in nature; but are merely created by the law, for the purposes of civil society. and sometimes, where the thing itself has it's rise from the law of nature, the particular circumstances and mode of doing it become right or wrong, as the laws of the land shall direct. thus, for instance, in civil duties; obedience to superiors is the doctrine of revealed as well as natural religion: but who those superiors shall be, and in what circumstances, or to what degrees they shall be obeyed, is the province of human laws to determine. and so, as to injuries or crimes, it must be left to our own legislature to decide, in what cases the seising another's cattle shall amount to the crime of robbery; and where it shall be a justifiable action, as when a landlord takes them by way of distress for rent. thus much for the _declaratory_ part of the municipal law: and the _directory_ stands much upon the same footing; for this virtually includes the former, the declaration being usually collected from the direction. the law that says, "thou shalt not steal," implies a declaration that stealing is a crime. and we have seen that, in things naturally indifferent, the very essence of right and wrong depends upon the direction of the laws to do or to omit it. the _remedial_ part of a law is so necessary a consequence of the former two, that laws must be very vague and imperfect without it. for in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights, when wrongfully withheld or invaded. this is what we mean properly, when we speak of the protection of the law. when, for instance, the _declaratory_ part of the law has said "that the field or inheritance, which belonged to titius's father, is vested by his death in titius;" and the _directory_ part has "forbidden any one to enter on another's property without the leave of the owner;" if gaius after this will presume to take possession of the land, the _remedial_ part of the law will then interpose it's office; will make gaius restore the possession to titius, and also pay him damages for the invasion. with regard to the _sanction_ of laws, or the evil that may attend the breach of public duties; it is observed, that human legislators have for the most part chosen to make the sanction of their laws rather _vindicatory_ than _remuneratory_, or to consist rather in punishments, than in actual particular rewards. because, in the first place, the quiet enjoyment and protection of all our civil rights and liberties, which are the sure and general consequence of obedience to the municipal law, are in themselves the best and most valuable of all rewards. because also, were the exercise of every virtue to be enforced by the proposal of particular rewards, it were impossible for any state to furnish stock enough for so profuse a bounty. and farther, because the dread of evil is a much more forcible principle of human actions than the prospect of good[i]. for which reasons, though a prudent bestowing of rewards is sometimes of exquisite use, yet we find that those civil laws, which enforce and enjoin our duty, do seldom, if ever, propose any privilege or gift to such as obey the law; but do constantly come armed with a penalty denounced against transgressors, either expressly defining the nature and quantity of the punishment, or else leaving it to the discretion of the judges, and those who are entrusted with the care of putting the laws in execution. [footnote i: locke, hum. und. b. 2. c. 21.] of all the parts of a law the most effectual is the _vindicatory_. for it is but lost labour to say, "do this, or avoid that," unless we also declare, "this shall be the consequence of your noncompliance." we must therefore observe, that the main strength and force of a law consists in the penalty annexed to it. herein is to be found the principal obligation of human laws. legislators and their laws are said to _compel_ and _oblige_; not that by any natural violence they so constrain a man, as to render it impossible for him to act otherwise than as they direct, which is the strict sense of obligation: but because, by declaring and exhibiting a penalty against offenders, they bring it to pass that no man can easily choose to transgress the law; since, by reason of the impending correction, compliance is in a high degree preferable to disobedience. and, even where rewards are proposed as well as punishments threatened, the obligation of the law seems chiefly to consist in the penalty: for rewards, in their nature, can only _persuade_ and _allure_; nothing is _compulsory_ but punishment. it is held, it is true, and very justly, by the principal of our ethical writers, that human laws are binding upon mens consciences. but if that were the only, or most forcible obligation, the good only would regard the laws, and the bad would set them at defiance. and, true as this principle is, it must still be understood with some restriction. it holds, i apprehend, as to _rights_; and that, when the law has determined the field to belong to titius, it is matter of conscience no longer to withhold or to invade it. so also in regard to _natural duties_, and such offences as are _mala in se_: here we are bound in conscience, because we are bound by superior laws, before those human laws were in being, to perform the one and abstain from the other. but in relation to those laws which enjoin only _positive duties_, and forbid only such things as are not _mala in se_ but _mala prohibita_ merely, annexing a penalty to noncompliance, here i apprehend conscience is no farther concerned, than by directing a submission to the penalty, in case of our breach of those laws: for otherwise the multitude of penal laws in a state would not only be looked upon as an impolitic, but would also be a very wicked thing; if every such law were a snare for the conscience of the subject. but in these cases the alternative is offered to every man; "either abstain from this, or submit to such a penalty;" and his conscience will be clear, whichever side of the alternative he thinks proper to embrace. thus, by the statutes for preserving the game, a penalty is denounced against every unqualified person that kills a hare. now this prohibitory law does not make the transgression a moral offence: the only obligation in conscience is to submit to the penalty if levied. i have now gone through the definition laid down of a municipal law; and have shewn that it is "a rule--of civil conduct--prescribed--by the supreme power in a state--commanding what is right, and prohibiting what is wrong:" in the explication of which i have endeavoured to interweave a few useful principles, concerning the nature of civil government, and the obligation of human laws. before i conclude this section, it may not be amiss to add a few observations concerning the _interpretation_ of laws. when any doubt arose upon the construction of the roman laws, the usage was to state the case to the emperor in writing, and take his opinion upon it. this was certainly a bad method of interpretation. to interrogate the legislature to decide particular disputes, is not only endless, but affords great room for partiality and oppression. the answers of the emperor were called his rescripts, and these had in succeeding cases the force of perpetual laws; though they ought to be carefully distinguished, by every rational civilian, from those general constitutions, which had only the nature of things for their guide. the emperor macrinus, as his historian capitolinus informs us, had once resolved to abolish these rescripts, and retain only the general edicts; he could not bear that the hasty and crude answers of such princes as commodus and caracalla should be reverenced as laws. but justinian thought otherwise[k], and he has preserved them all. in like manner the canon laws, or decretal epistles of the popes, are all of them rescripts in the strictest sense. contrary to all true forms of reasoning, they argue from particulars to generals. [footnote k: _inst._ 1. 2. 6.] the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by _signs_ the most natural and probable. and these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. let us take a short view of them all. 1. words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use. thus the law mentioned by puffendorf[l], which forbad a layman to _lay hands_ on a priest, was adjudged to extend to him, who had hurt a priest with a weapon. again; terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. so in the act of settlement, where the crown of england is limited "to the princess sophia, and the heirs of her body, being protestants," it becomes necessary to call in the assistance of lawyers, to ascertain the precise idea of the words "_heirs of her body_;" which in a legal sense comprize only certain of her lineal descendants. lastly, where words are clearly _repugnant_ in two laws, the later law takes place of the elder: _leges posteriores priores contrarias abrogant_ is a maxim of universal law, as well as of our own constitutions. and accordingly it was laid down by a law of the twelve tables at rome, _quod populus postremum jussit, id jus ratum esto_. [footnote l: l. of n. and n. 5. 12. 3.] 2. if words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. thus the proeme, or preamble, is often called in to help the construction of an act of parliament. of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point. thus, when the law of england declares murder to be felony without benefit of clergy, we must resort to the same law of england to learn what the benefit of clergy is: and, when the common law censures simoniacal contracts, it affords great light to the subject to consider what the canon law has adjudged to be simony. 3. as to the subject matter, words are always to be understood as having a regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. thus, when a law of our edward iii. forbids all ecclesiastical persons to purchase _provisions_ at rome, it might seem to prohibit the buying of grain and other victual; but when we consider that the statute was made to repress the usurpations of the papal see, and that the nominations to vacant benefices by the pope were called _provisions_, we shall see that the restraint is intended to be laid upon such provisions only. 4. as to the effects and consequence, the rule is, where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. therefore the bolognian law, mentioned by puffendorf[m], which enacted "that whoever drew blood in the streets should be punished with the utmost severity," was held after long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit. [footnote m: _l._ 5. _c._ 12. â§. 8.] 5. but, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. for when this reason ceases, the law itself ought likewise to cease with it. an instance of this is given in a case put by cicero, or whoever was the author of the rhetorical treatise inscribed to herennius[n]. there was a law, that those who in a storm forsook the ship should forfeit all property therein; and the ship and lading should belong entirely to those who staid in it. in a dangerous tempest all the mariners forsook the ship, except only one sick passenger, who by reason of his disease was unable to get out and escape. by chance the ship came safe to port. the sick man kept possession and claimed the benefit of the law. now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was, to give encouragement to such as should venture their lives to save the vessel: but this is a merit, which he could never pretend to, who neither staid in the ship upon that account, nor contributed any thing to it's preservation. [footnote n: _l._ 1. _c._ 11.] from this method of interpreting laws, by the reason of them, arises what we call _equity_; which is thus defined by grotius[o], "the correction of that, wherein the law (by reason of its universality) is deficient." for since in laws all cases cannot be foreseen or expressed, it is necessary, that when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of excepting those circumstances, which (had they been foreseen) the legislator himself would have excepted. and these are the cases, which, as grotius expresses it, "_lex non exacte definit, sed arbitrio boni viri permittit_." [footnote o: _de aequitate._] equity thus depending, essentially, upon the particular circumstances of each individual case, there can be no established rules and fixed precepts of equity laid down, without destroying it's very essence, and reducing it to a positive law. and, on the other hand, the liberty of considering all cases in an equitable light must not be indulged too far, lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. and law, without equity, tho' hard and disagreeable, is much more desirable for the public good, than equity without law; which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind. section the third. of the laws of england. the municipal law of england, or the rule of civil conduct prescribed to the inhabitants of this kingdom, may with sufficient propriety be divided into two kinds; the _lex non scripta_, the unwritten, or common law; and the _lex scripta_, the written, or statute law. the _lex non scripta_, or unwritten law, includes not only _general customs_, or the common law properly so called; but also the _particular customs_ of certain parts of the kingdom; and likewise those _particular laws_, that are by custom observed only in certain courts and jurisdictions. when i call these parts of our law _leges non scriptae_, i would not be understood as if all those laws were at present merely _oral_, or communicated from the former ages to the present solely by word of mouth. it is true indeed that, in the profound ignorance of letters which formerly overspread the whole western world, all laws were intirely traditional, for this plain reason, that the nations among which they prevailed had but little idea of writing. thus the british as well as the gallic druids committed all their laws as well as learning to memory[a]; and it is said of the primitive saxons here, as well as their brethren on the continent, that _leges sola memoria et usu retinebant_[b]. but with us at present the monuments and evidences of our legal customs are contained in the records of the several courts of justice, in books of reports and judicial decisions, and in the treatises of learned sages of the profession, preserved and handed down to us from the times of highest antiquity. however i therefore stile these parts of our law _leges non scriptae_, because their original institution and authority are not set down in writing, as acts of parliament are, but they receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom. in like manner as aulus gellius defines the _jus non scriptum_ to be that, which is "_tacito et illiterato hominum consensu et moribus expressum_." [footnote a: _caes. de b. g._ _lib._ 6. _c._ 13.] [footnote b: spelm. gl. 362.] our antient lawyers, and particularly fortescue[c], insist with abundance of warmth, that these customs are as old as the primitive britons, and continued down, through the several mutations of government and inhabitants, to the present time, unchanged and unadulterated. this may be the case as to some; but in general, as mr selden in his notes observes, this assertion must be understood with many grains of allowance; and ought only to signify, as the truth seems to be, that there never was any formal exchange of one system of laws for another: though doubtless by the intermixture of adventitious nations, the romans, the picts, the saxons, the danes, and the normans, they must have insensibly introduced and incorporated many of their own customs with those that were before established: thereby in all probability improving the texture and wisdom of the whole, by the accumulated wisdom of divers particular countries. our laws, saith lord bacon[d], are mixed as our language: and as our language is so much the richer, the laws are the more complete. [footnote c: _c._ 17.] [footnote d: see his proposals for a digest.] and indeed our antiquarians and first historians do all positively assure us, that our body of laws is of this compounded nature. for they tell us, that in the time of alfred the local customs of the several provinces of the kingdom were grown so various, that he found it expedient to compile his _dome-book_ or _liber judicialis_, for the general use of the whole kingdom. this book is said to have been extant so late as the reign of king edward the fourth, but is now unfortunately lost. it contained, we may probably suppose, the principal maxims of the common law, the penalties for misdemesnors, and the forms of judicial proceedings. thus much may at least be collected from that injunction to observe it, which we find in the laws of king edward the elder, the son of alfred[e]. "_omnibus qui reipublicae praesunt, etiam atque etiam mando, ut omnibus aequos se praebeant judices, perinde ac in judiciali libro_ (_saxonice_, [anglo-saxon: dom-bec]) _scriptum habetur; nec quicquam formident quin jus commune_ (_saxonice_, [anglo-saxon: folcrihte]) _audacter libereque dicant._" [footnote e: _c._ 1.] but the irruption and establishment of the danes in england which followed soon after, introduced new customs and caused this code of alfred in many provinces to fall into disuse; or at least to be mixed and debased with other laws of a coarser alloy. so that about the beginning of the eleventh century there were three principal systems of laws prevailing in different districts. 1. the _mercen-lage_, or mercian laws, which were observed in many of the midland counties, and those bordering on the principality of wales; the retreat of the antient britons; and therefore very probably intermixed with the british or druidical customs. 2. the _west-saxon-lage_, or laws of the west saxons, which obtained in the counties to the south and west of the island, from kent to devonshire. these were probably much the same with the laws of alfred abovementioned, being the municipal law of the far most considerable part of his dominions, and particularly including berkshire, the seat of his peculiar residence. 3. the _dane-lage_, or danish law, the very name of which speaks it's original and composition. this was principally maintained in the rest of the midland counties, and also on the eastern coast, the seat of that piratical people. as for the very northern provinces, they were at that time under a distinct government[f]. [footnote f: hal. hist. 55.] out of these three laws, roger hoveden[g] and ranulphus cestrensis[h] inform us, king edward the confessor extracted one uniform law or digest of laws, to be observed throughout the whole kingdom; though hoveden and the author of an old manuscript chronicle[i] assure us likewise, that this work was projected and begun by his grandfather king edgar. and indeed a general digest of the same nature has been constantly found expedient, and therefore put in practice by other great nations, formed from an assemblage of little provinces, governed by peculiar customs. as in portugal, under king edward, about the beginning of the fifteenth century[k]. in spain under alonzo x, who about the year 1250 executed the plan of his father st. ferdinand, and collected all the provincial customs into one uniform law, in the celebrated code entitled _las partidas_[l]. and in sweden about the same aera, a universal body of common law was compiled out of the particular customs established by the laghman of every province, and intitled the _land's lagh_, being analogous to the _common law_ of england[m]. [footnote g: _in hen. ii._] [footnote h: _in edw. confessor._] [footnote i: _in seld. ad eadmer._ 6.] [footnote k: mod. un. hist. xxii. 135.] [footnote l: ibid. xx. 211.] [footnote m: ibid. xxxiii. 21, 58.] both these undertakings, of king edgar and edward the confessor, seem to have been no more than a new edition, or fresh promulgation, of alfred's code or dome-book, with such additions and improvements as the experience of a century and an half had suggested. for alfred is generally stiled by the same historians the _legum anglicanarum conditor_, as edward the confessor is the _restitutor_. these however are the laws which our histories so often mention under the name of the laws of edward the confessor; which our ancestors struggled so hardly to maintain, under the first princes of the norman line; and which subsequent princes so frequently promised to keep and to restore, as the most popular act they could do, when pressed by foreign emergencies or domestic discontents. these are the laws, that so vigorously withstood the repeated attacks of the civil law; which established in the twelfth century a new roman empire over most of the states on the continent: states that have lost, and perhaps upon that account, their political liberties; while the free constitution of england, perhaps upon the same account, has been rather improved than debased. these, in short, are the laws which gave rise and original to that collection of maxims and customs, which is now known by the name of the common law. a name either given to it, in contradistinction to other laws, as the statute law, the civil law, the law merchant, and the like; or, more probably, as a law _common_ to all the realm, the _jus commune_ or _folcright_ mentioned by king edward the elder, after the abolition of the several provincial customs and particular laws beforementioned. but though this is the most likely foundation of this collection of maxims and customs, yet the maxims and customs, so collected, are of higher antiquity than memory or history can reach: nothing being more difficult than to ascertain the precise beginning and first spring of an antient and long established custom. whence it is that in our law the goodness of a custom depends upon it's having been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary. this it is that gives it it's weight and authority; and of this nature are the maxims and customs which compose the common law, or _lex non scripta_, of this kingdom. this unwritten, or common, law is properly distinguishable into three kinds: 1. general customs; which are the universal rule of the whole kingdom, and form the common law, in it's stricter and more usual signification. 2. particular customs; which for the most part affect only the inhabitants of particular districts. 3. certain particular laws; which by custom are adopted and used by some particular courts, of pretty general and extensive jurisdiction. i. as to general customs, or the common law, properly so called; this is that law, by which proceedings and determinations in the king's ordinary courts of justice are guided and directed. this, for the most part, settles the course in which lands descend by inheritance; the manner and form of acquiring and transferring property; the solemnities and obligation of contracts; the rules of expounding wills, deeds, and acts of parliament; the respective remedies of civil injuries; the several species of temporal offences, with the manner and degree of punishment; and an infinite number of minuter particulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires. thus, for example, that there shall be four superior courts of record, the chancery, the king's bench, the common pleas, and the exchequer;--that the eldest son alone is heir to his ancestor;--that property may be acquired and transferred by writing;--that a deed is of no validity unless sealed;--that wills shall be construed more favorably, and deeds more strictly;--that money lent upon bond is recoverable by action of debt;--that breaking the public peace is an offence, and punishable by fine and imprisonment;--all these are doctrines that are not set down in any written statute or ordinance, but depend merely upon immemorial usage, that is, upon common law, for their support. some have divided the common law into two principal grounds or foundations: 1. established customs; such as that where there are three brothers, the eldest brother shall be heir to the second, in exclusion of the youngest: and 2. established rules and maxims; as, "that the king can do no wrong, that no man shall be bound to accuse himself," and the like. but i take these to be one and the same thing. for the authority of these maxims rests entirely upon general reception and usage; and the only method of proving, that this or that maxim is a rule of the common law, is by shewing that it hath been always the custom to observe it. but here a very natural, and very material, question arises: how are these customs or maxims to be known, and by whom is their validity to be determined? the answer is, by the judges in the several courts of justice. they are the depositary of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. their knowlege of that law is derived from experience and study; from the "_viginti annorum lucubrationes_," which fortescue[n] mentions; and from being long personally accustomed to the judicial decisions of their predecessors. and indeed these judicial decisions are the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form a part of the common law. the judgment itself, and all the proceedings previous thereto, are carefully registered and preserved, under the name of _records_, in publick repositories set apart for that particular purpose; and to them frequent recourse is had, when any critical question arises, in the determination of which former precedents may give light or assistance. and therefore, even so early as the conquest, we find the "_praeteritorum memoria eventorum_" reckoned up as one of the chief qualifications of those who were held to be "_legibus patriae optime instituti_[o]." for it is an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments: he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be contrary to the divine law. but even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. for if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was _bad law_, but that it was _not law_; that is, that it is not the established custom of the realm, as has been erroneously determined. and hence it is that our lawyers are with justice so copious in their encomiums on the reason of the common law; that they tell us, that the law is the perfection of reason, that it always intends to conform thereto, and that what is not reason is not law. not that the particular reason of every rule in the law can at this distance of time be always precisely assigned; but it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the law will presume it to be well founded[p]. and it hath been an antient observation in the laws of england, that whenever a standing rule of law, of which the reason perhaps could not be remembered or discerned, hath been wantonly broke in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation. [footnote n: _cap._ 8.] [footnote o: seld. review of tith. c. 8.] [footnote p: herein agreeing with the civil law, _ff._ 1. 3. 20, 21. "_non omnium, quae a majoribus nostris constituta sunt, ratio reddi potest. et ideo rationes eorum quae constituuntur, inquiri non oportet: alioquin multa ex his, quae certa sunt, subvertuntur._"] the doctrine of the law then is this: that precedents and rules must be followed, unless flatly absurd or unjust: for though their reason be not obvious at first view, yet we owe such a deference to former times as not to suppose they acted wholly without consideration. to illustrate this doctrine by examples. it has been determined, time out of mind, that a brother of the half blood (i.e. where they have only one parent the same, and the other different) shall never succeed as heir to the estate of his half brother, but it shall rather escheat to the king, or other superior lord. now this is a positive law, fixed and established by custom, which custom is evidenced by judicial decisions; and therefore can never be departed from by any modern judge without a breach of his oath and the law. for herein there is nothing repugnant to natural justice; though the reason of it, drawn from the feodal law, may not be quite obvious to every body. and therefore, on account of a supposed hardship upon the half brother, a modern judge might wish it had been otherwise settled; yet it is not in his power to alter it. but if any court were now to determine, that an elder brother of the half blood might enter upon and seise any lands that were purchased by his younger brother, no subsequent judges would scruple to declare that such prior determination was unjust, was unreasonable, and therefore was _not law_. so that _the law_, and the _opinion of the judge_ are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may _mistake_ the law. upon the whole however, we may take it as a general rule, "that the decisions of courts of justice are the evidence of what is common law:" in the same manner as, in the civil law, what the emperor had once determined was to serve for a guide for the future[q]. [footnote q: "_si imperialis majestas causam cognitionaliter examinaverit, et partibus cominus constitutis sententiam dixerit, omnes omnino judices, qui sub nostro imperio sunt, sciant hanc esse legem, non solum illi causae pro qua producta est, sed et in omnibus similibus._" _c._ 1. 14. 12.] the decisions therefore of courts are held in the highest regard, and are not only preserved as authentic records in the treasuries of the several courts, but are handed out to public view in the numerous volumes of _reports_ which furnish the lawyer's library. these reports are histories of the several cases, with a short summary of the proceedings, which are preserved at large in the record; the arguments on both sides; and the reasons the court gave for their judgment; taken down in short notes by persons present at the determination. and these serve as indexes to, and also to explain, the records; which always, in matters of consequence and nicety, the judges direct to be searched. the reports are extant in a regular series from the reign of king edward the second inclusive; and from his time to that of henry the eighth were taken by the prothonotaries, or chief scribes of the court, at the expence of the crown, and published _annually_, whence they are known under the denomination of the _year books_. and it is much to be wished that this beneficial custom had, under proper regulations, been continued to this day: for, though king james the first at the instance of lord bacon appointed two reporters with a handsome stipend for this purpose, yet that wise institution was soon neglected, and from the reign of henry the eighth to the present time this task has been executed by many private and cotemporary hands; who sometimes through haste and inaccuracy, sometimes through mistake and want of skill, have published very crude and imperfect (perhaps contradictory) accounts of one and the same determination. some of the most valuable of the antient reports are those published by lord chief justice coke; a man of infinite learning in his profession, though not a little infected with the pedantry and quaintness of the times he lived in, which appear strongly in all his works. however his writings are so highly esteemed, that they are generally cited without the author's name[r]. [footnote r: his reports, for instance, are stiled, [greek: kat' exochãªn], _the reports_; and in quoting them we usually say, 1 or 2 rep. not 1 or 2 coke's rep. as in citing other authors. the reports of judge croke are also cited in a peculiar manner, by the name of those princes, in whose reigns the cases reported in his three volumes were determined; viz. qu. elizabeth, k. james, and k. charles the first; as well as by the number of each volume. for sometimes we call them, 1, 2, and 3 cro. but more commonly cro. eliz. cro. jac. and cro. car.] besides these reporters, there are also other authors, to whom great veneration and respect is paid by the students of the common law. such are glanvil and bracton, britton and fleta, littleton and fitzherbert, with some others of antient date, whose treatises are cited as authority; and are evidence that cases have formerly happened in which such and such points were determined, which are now become settled and first principles. one of the last of these methodical writers in point of time, whose works are of any intrinsic authority in the courts of justice, and do not entirely depend on the strength of their quotations from older authors, is the same learned judge we have just mentioned, sir edward coke; who hath written four volumes of institutes, as he is pleased to call them, though they have little of the institutional method to warrant such a title. the first volume is a very extensive comment upon a little excellent treatise of tenures, compiled by judge littleton in the reign of edward the fourth. this comment is a rich mine of valuable common law learning, collected and heaped together from the antient reports and year books, but greatly defective in method[s]. the second volume is a comment upon many old acts of parliament, without any systematical order; the third a more methodical treatise of the pleas of the crown; and the fourth an account of the several species of courts[t]. [footnote s: it is usually cited either by the name of co. litt. or as 1 inst.] [footnote t: these are cited as 2, 3, or 4 inst. without any author's name. an honorary distinction, which, we observed, was paid to the works of no other writer; the generality of reports and other tracts being quoted in the name of the compiler, as 2 ventris, 4 leonard, 1 siderfin, and the like.] and thus much for the first ground and chief corner stone of the laws of england, which is, general immemorial custom, or common law, from time to time declared in the decisions of the courts of justice; which decisions are preserved among our public records, explained in our reports, and digested for general use in the authoritative writings of the venerable sages of the law. the roman law, as practised in the times of it's liberty, paid also a great regard to custom; but not so much as our law: it only then adopting it, when the written law is deficient. though the reasons alleged in the digest[u] will fully justify our practice, in making it of equal authority with, when it is not contradicted by, the written law. "for since, says julianus, the written law binds us for no other reason but because it is approved by the judgment of the people, therefore those laws which the people hath approved without writing ought also to bind every body. for where is the difference, whether the people declare their assent to a law by suffrage, or by a uniform course of acting accordingly?" thus did they reason while rome had some remains of her freedom; but when the imperial tyranny came to be fully established, the civil laws speak a very different language. "_quod principi placuit legis habet vigorem, cum populus ei et in eum omne suum imperium et potestatem conferat_," says ulpian[w]. "_imperator solus et conditor et interpres legis existimatur_," says the code[x]. and again, "_sacrilegii instar est rescripto principis obviare_[y]." and indeed it is one of the characteristic marks of english liberty, that our common law depends upon custom; which carries this internal evidence of freedom along with it, that it probably was introduced by the voluntary consent of the people. [footnote u: _ff._ 1. 3. 32.] [footnote w: _ff._ 1. 4. 1.] [footnote x: _c._ 1. 14. 12.] [footnote y: _c._ 1. 23. 5.] ii. the second branch of the unwritten laws of england are particular customs, or laws which affect only the inhabitants of particular districts. these particular customs, or some of them, are without doubt the remains of that multitude of local customs before mentioned, out of which the common law, as it now stands, was collected at first by king alfred, and afterwards by king edgar and edward the confessor: each district mutually sacrificing some of it's own special usages, in order that the whole kingdom might enjoy the benefit of one uniform and universal system of laws. but, for reasons that have been now long forgotten, particular counties, cities, towns, manors, and lordships, were very early indulged with the privilege of abiding by their own customs, in contradistinction to the rest of the nation at large: which privilege is confirmed to them by several acts of parliament[z]. [footnote z: mag. cart. c. 9.--1 edw. iii. st. 2. c. 9.--14 edw. iii. st. 1. c. 1.--and 2 hen. iv. c. 1.] such is the custom of gavelkind in kent and some other parts of the kingdom (though perhaps it was also general till the norman conquest) which ordains, among other things, that not the eldest son only of the father shall succeed to his inheritance, but all the sons alike: and that, though the ancestor be attainted and hanged, yet the heir shall succeed to his estate, without any escheat to the lord.--such is the custom that prevails in divers antient boroughs, and therefore called borough-english, that the youngest son shall inherit the estate, in preference to all his elder brothers.--such is the custom in other boroughs that a widow shall be intitled, for her dower, to all her husband's lands; whereas at the common law she shall be endowed of one third part only.--such also are the special and particular customs of manors, of which every one has more or less, and which bind all the copyhold-tenants that hold of the said manors.--such likewise is the custom of holding divers inferior courts, with power of trying causes, in cities and trading towns; the right of holding which, when no royal grant can be shewn, depends entirely upon immemorial and established usage.--such, lastly, are many particular customs within the city of london, with regard to trade, apprentices, widows, orphans, and a variety of other matters; which are all contrary to the general law of the land, and are good only by special custom, though those of london are also confirmed by act of parliament[a]. [footnote a: 8 rep. 126. cro. car. 347.] to this head may most properly be referred a particular system of customs used only among one set of the king's subjects, called the custom of merchants or _lex mercatoria_; which, however different from the common law, is allowed for the benefit of trade, to be of the utmost validity in all commercial transactions; the maxim of law being, that "_cuilibet in sua arte credendum est_." the rules relating to particular customs regard either the proof of their existence; their legality when proved; or their usual method of allowance. and first we will consider the rules of proof. as to gavelkind, and borough-english, the law takes particular notice of them[b], and there is no occasion to prove that such customs actually exist, but only that the lands in question are subject thereto. all other private customs must be particularly pleaded[c], and as well the existence of such customs must be shewn, as that the thing in dispute is within the custom alleged. the trial in both cases (both to shew the existence of the custom, as, "that in the manor of dale lands shall descend only to the heirs male, and never to the heirs female;" and also to shew that the lands in question are within that manor) is by a jury of twelve men, and not by the judges, except the same particular custom has been before tried, determined, and recorded in the same court[d]. [footnote b: co. litt. 175 _b._] [footnote c: litt. â§. 265.] [footnote d: dr and st. 1. 10.] the customs of london differ from all others in point of trial: for, if the existence of the custom be brought in question, it shall not be tried by a jury, but by certificate from the lord mayor and aldermen by the mouth of their recorder[e]; unless it be such a custom as the corporation is itself interested in, as a right of taking toll, &c, for then the law permits them not to certify on their own behalf[f]. [footnote e: cro. car. 516.] [footnote f: hob. 85.] when a custom is actually proved to exist, the next enquiry is into the legality of it; for if it is not a good custom it ought to be no longer used. "_malus usus abolendus est_" is an established maxim of the law[g]. to make a particular custom good, the following are necessary requisites. [footnote g: litt. â§. 212. 4 inst. 274.] 1. that it have been used so long, that the memory of man runneth not to the contrary. so that if any one can shew the beginning of it, it is no good custom. for which reason no custom can prevail against an express act of parliament; since the statute itself is a proof of a time when such a custom did not exist[h]. [footnote h: co. litt. 113 _b._] 2. it must have been _continued_. any interruption would cause a temporary ceasing: the revival gives it a new beginning, which will be within time of memory, and thereupon the custom will be void. but this must be understood with regard to an interruption of the _right_; for an interruption of the _possession_ only, for ten or twenty years, will not destroy the custom[i]. as if i have a right of way by custom over another's field, the custom is not destroyed, though i do not pass over it for ten years; it only becomes more difficult to prove: but if the _right_ be any how discontinued for a day, the custom is quite at an end. [footnote i: co. litt. 114 _b._] 3. it must have been _peaceable_, and acquiesced in; not subject to contention and dispute[k]. for as customs owe their original to common consent, their being immemorially disputed either at law or otherwise is a proof that such consent was wanting. [footnote k: co. litt. 114.] 4. customs must be _reasonable_[l]; or rather, taken negatively, they must not be unreasonable. which is not always, as sir edward coke says[m], to be understood of every unlearned man's reason, but of artificial and legal reason, warranted by authority of law. upon which account a custom may be good, though the particular reason of it cannot be assigned; for it sufficeth, if no good legal reason can be assigned against it. thus a custom in a parish, that no man shall put his beasts into the common till the third of october, would be good; and yet it would be hard to shew the reason why that day in particular is fixed upon, rather than the day before or after. but a custom that no cattle shall be put in till the lord of the manor has first put in his, is unreasonable, and therefore bad: for peradventure the lord will never put in his; and then the tenants will lose all their profits[n]. [footnote l: litt. â§. 212.] [footnote m: 1 inst. 62.] [footnote n: co. copyh. â§. 33.] 5. customs ought to be _certain_. a custom, that lands shall descend to the most worthy of the owner's blood, is void; for how shall this worth be determined? but a custom to descend to the next male of the blood, exclusive of females, is certain, and therefore good[o]. a custom, to pay two pence an acre in lieu of tythes, is good; but to pay sometimes two pence and sometimes three pence, as the occupier of the land pleases, is bad for it's uncertainty. yet a custom, to pay a year's improved value for a fine on a copyhold estate, is good: though the value is a thing uncertain. for the value may at any time be ascertained; and the maxim of law is, _id certum est, quod certum reddi potest_. [footnote o: 1 roll. abr. 565.] 6. customs, though established by consent, must be (when established) _compulsory_; and not left to the option of every man, whether he will use them or no. therefore a custom, that all the inhabitants shall be rated toward the maintenance of a bridge, will be good; but a custom, that every man is to contribute thereto at his own pleasure, is idle and absurd, and, indeed, no custom at all. 7. lastly, customs must be _consistent_ with each other: one custom cannot be set up in opposition to another. for if both are really customs, then both are of equal antiquity, and both established by mutual consent: which to say of contradictory customs is absurd. therefore, if one man prescribes that by custom he has a right to have windows looking into another's garden; the other cannot claim a right by custom to stop up or obstruct those windows: for these two contradictory customs cannot both be good, nor both stand together. he ought rather to deny the existence of the former custom[p]. [footnote p: 9 rep. 58.] next, as to the allowance of special customs. customs, in derogation of the common law, must be construed strictly. thus, by the custom of gavelkind, an infant of fifteen years may by one species of conveyance (called a deed of feoffment) convey away his lands in fee simple, or for ever. yet this custom does not impower him to use any other conveyance, or even to lease them for seven years: for the custom must be strictly pursued[q]. and, moreover, all special customs must submit to the king's prerogative. therefore, if the king purchases lands of the nature of gavelkind, where all the sons inherit equally; yet, upon the king's demise, his eldest son shall succeed to those lands alone[r]. and thus much for the second part of the _leges non scriptae_, or those particular customs which affect particular persons or districts only. [footnote q: co. cop. â§. 33.] [footnote r: co. litt. 15 _b._] iii. the third branch of them are those peculiar laws, which by custom are adopted and used only in certain peculiar courts and jurisdictions. and by these i understand the civil and canon laws. it may seem a little improper at first view to rank these laws under the head of _leges non scriptae_, or unwritten laws, seeing they are set forth by authority in their pandects, their codes, and their institutions; their councils, decrees, and decretals; and enforced by an immense number of expositions, decisions, and treatises of the learned in both branches of the law. but i do this, after the example of sir matthew hale[s], because it is most plain, that it is not on account of their being _written_ laws, that either the canon law, or the civil law, have any obligation within this kingdom; neither do their force and efficacy depend upon their own intrinsic authority; which is the case of our written laws, or acts of parliament. they bind not the subjects of england, because their materials were collected from popes or emperors; were digested by justinian, or declared to be authentic by gregory. these considerations give them no authority here: for the legislature of england doth not, nor ever did, recognize any foreign power, as superior or equal to it in this kingdom; or as having the right to give law to any, the meanest, of it's subjects. but all the strength that either the papal or imperial laws have obtained in this realm, or indeed in any other kingdom in europe, is only because they have been admitted and received by immemorial usage and custom in some particular cases, and some particular courts; and then they form a branch of the _leges non scriptae_, or customary law: or else, because they are in some other cases introduced by consent of parliament, and then they owe their validity to the _leges scriptae_, or statute law. this is expressly declared in those remarkable words of the statute 25 hen. viii. c. 21. addressed to the king's royal majesty.--"this your grace's realm, recognizing no superior under god but only your grace, hath been and is free from subjection to any man's laws, but only to such as have been devised, made, and ordained _within_ this realm for the wealth of the same; or to such other, as by sufferance of your grace and your progenitors, the people of this your realm, have taken at their free liberty, by their own consent, to be used among them; and have bound themselves by long use and custom to the observance of the same: not as to the observance of the laws of any foreign prince, potentate, or prelate; but as to the _customed_ and antient laws of this realm, originally established as laws of the same, by the said sufferance, consents, and custom; and none otherwise." [footnote s: hist. c.l. c. 2.] by the civil law, absolutely taken, is generally understood the civil or municipal law of the roman empire, as comprized in the institutes, the code, and the digest of the emperor justinian, and the novel constitutions of himself and some of his successors. of which, as there will frequently be occasion to cite them, by way of illustrating our own laws, it may not be amiss to give a short and general account. the roman law (founded first upon the regal constitutions of their antient kings, next upon the twelve tables of the _decemviri_, then upon the laws or statutes enacted by the senate or people, the edicts of the praetor, and the _responsa prudentum_ or opinions of learned lawyers, and lastly upon the imperial decrees, or constitutions of successive emperors) had grown to so great a bulk, or as livy expresses it[t], "_tam immensus aliarum super alias acervatarum legum cumulus_," that they were computed to be many camels' load by an author who preceded justinian[u]. this was in part remedied by the collections of three private lawyers, gregorius, hermogenes, and papirius; and then by the emperor theodosius the younger, by whose orders a code was compiled, _a.d._ 438, being a methodical collection of all the imperial constitutions then in force: which theodosian code was the only book of civil law received as authentic in the western part of europe till many centuries after; and to this it is probable that the franks and goths might frequently pay some regard, in framing legal constitutions for their newly erected kingdoms. for justinian commanded only in the eastern remains of the empire; and it was under his auspices, that the present body of civil law was compiled and finished by tribonian and other lawyers, about the year 533. [footnote t: _l._ 3. _c._ 34.] [footnote u: taylor's elements of civil law. 17.] this consists of, 1. the institutes, which contain the elements or first principles of the roman law, in four books. 2. the digests, or pandects, in fifty books, containing the opinions and writings of eminent lawyers, digested in a systematical method. 3. a new code, or collection of imperial constitutions, the lapse of a whole century having rendered the former code, of theodosius, imperfect. 4. the novels, or new constitutions, posterior in time to the other books, and amounting to a supplement to the code; containing new decrees of successive emperors, as new questions happened to arise. these form the body of roman law, or _corpus juris civilis_, as published about the time of justinian: which however fell soon into neglect and oblivion, till about the year 1130, when a copy of the digests was found at amalfi in italy; which accident, concurring with the policy of the romish ecclesiastics[w], suddenly gave new vogue and authority to the civil law, introduced it into several nations, and occasioned that mighty inundation of voluminous comments, with which this system of law, more than any other, is now loaded. [footnote w: see â§. 1. pag. 18.] the canon law is a body of roman ecclesiastical law, relative to such matters as that church either has, or pretends to have, the proper jurisdiction over. this is compiled from the opinions of the antient latin fathers, the decrees of general councils, the decretal epistles and bulles of the holy see. all which lay in the same disorder and confusion as the roman civil law, till about the year 1151, one gratian an italian monk, animated by the discovery of justinian's pandects at amalfi, reduced them into some method in three books, which he entitled _concordia discordantium canonum_, but which are generally known by the name of _decretum gratiani_. these reached as low as the time of pope alexander iii. the subsequent papal decrees, to the pontificate of gregory ix, were published in much the same method under the auspices of that pope, about the year 1230, in five books entitled _decretalia gregorii noni_. a sixth book was added by boniface viii, about the year 1298, which is called _sextus decretalium_. the clementine constitutions, or decrees of clement v, were in like manner authenticated in 1317 by his successor john xxii; who also published twenty constitutions of his own, called the _extravagantes joannis_: all which in some measure answer to the novels of the civil law. to these have been since added some decrees of later popes in five books, called _extravagantes communes_. and all these together, gratian's decree, gregory's decretals, the sixth decretal, the clementine constitutions, and the extravagants of john and his successors, form the _corpus juris canonici_, or body of the roman canon law. besides these pontificial collections, which during the times of popery were received as authentic in this island, as well as in other parts of christendom, there is also a kind of national canon law, composed of _legatine_ and _provincial_ constitutions, and adapted only to the exigencies of this church and kingdom. the _legatine_ constitutions were ecclesiastical laws, enacted in national synods, held under the cardinals otho and othobon, legates from pope gregory ix and pope adrian iv, in the reign of king henry iii about the years 1220 and 1268. the _provincial_ constitutions are principally the decrees of provincial synods, held under divers arch-bishops of canterbury, from stephen langton in the reign of henry iii to henry chichele in the reign of henry v; and adopted also by the province of york[x] in the reign of henry vi. at the dawn of the reformation, in the reign of king henry viii, it was enacted in parliament[y] that a review should be had of the canon law; and, till such review should be made, all canons, constitutions, ordinances, and synodals provincial, being then already made, and not repugnant to the law of the land or the king's prerogative, should still be used and executed. and, as no such review has yet been perfected, upon this statute now depends the authority of the canon law in england. [footnote x: burn's eccl. law, pref. viii.] [footnote y: statute 25 hen. viii. c. 19; revived and confirmed by 1 eliz. c. 1.] as for the canons enacted by the clergy under james i, in the year 1603, and never confirmed in parliament, it has been solemnly adjudged upon the principles of law and the constitution, that where they are not merely declaratory of the antient canon law, but are introductory of new regulations, they do not bind the laity[z]; whatever regard the clergy may think proper to pay them. [footnote z: stra. 1057.] there are four species of courts in which the civil and canon laws are permitted under different restrictions to be used. 1. the courts of the arch-bishops and bishops and their derivative officers, usually called in our law courts christian, _curiae christianitatis_, or the ecclesiastical courts. 2. the military courts. 3. the courts of admiralty. 4. the courts of the two universities. in all, their reception in general, and the different degrees of that reception, are grounded intirely upon custom; corroborated in the latter instance by act of parliament, ratifying those charters which confirm the customary law of the universities. the more minute consideration of these will fall properly under that part of these commentaries which treats of the jurisdiction of courts. it will suffice at present to remark a few particulars relative to them all, which may serve to inculcate more strongly the doctrine laid down concerning them[a]. [footnote a: hale hist. c. 2.] 1. and, first, the courts of common law have the superintendency over these courts; to keep them within their jurisdictions, to determine wherein they exceed them, to restrain and prohibit such excess, and (in case of contumacy) to punish the officer who executes, and in some cases the judge who enforces, the sentence so declared to be illegal. 2. the common law has reserved to itself the exposition of all such acts of parliament, as concern either the extent of these courts or the matters depending before them. and therefore if these courts either refuse to allow these acts of parliament, or will expound them in any other sense than what the common law puts upon them, the king's courts at westminster will grant prohibitions to restrain and control them. 3. an appeal lies from all these courts to the king, in the last resort; which proves that the jurisdiction exercised in them is derived from the crown of england, and not from any foreign potentate, or intrinsic authority of their own.--and, from these three strong marks and ensigns of superiority, it appears beyond a doubt that the civil and canon laws, though admitted in some cases by custom in some courts, are only subordinate and _leges sub graviori lege_; and that, thus admitted, restrained, altered, new-modelled, and amended, they are by no means with us a distinct independent species of laws, but are inferior branches of the customary or unwritten laws of england, properly called, the king's ecclesiastical, the king's military, the king's maritime, or the king's academical, laws. let us next proceed to the _leges scriptae_, the written laws of the kingdom, which are statutes, acts, or edicts, made by the king's majesty by and with the advice and content of the lords spiritual and temporal and commons in parliament assembled[b]. the oldest of these now extant, and printed in our statute books, is the famous _magna carta_, as confirmed in parliament 9 hen. iii: though doubtless there were many acts before that time, the records of which are now lost, and the determinations of them perhaps at present currently received for the maxims of the old common law. [footnote b: 8 rep. 20.] the manner of making these statutes will be better considered hereafter, when we examine the constitution of parliaments. at present we will only take notice of the different kinds of statutes; and of some general rules with regard to their construction[c]. [footnote c: the method of citing these acts of parliament is various. many of our antient statutes are called after the name of the place, where the parliament was held that made them: as the statutes of merton and marlbridge, of westminster, glocester, and winchester. others are denominated entirely from their subject; as the statutes of wales and ireland, the _articuli cleri_, and the _praerogativa regis_. some are distinguished by their initial words, a method of citing very antient; being used by the jews in denominating the books of the pentateuch; by the christian church in distinguishing their hymns and divine offices; by the romanists in describing their papal bulles; and in short by the whole body of antient civilians and canonists, among whom this method of citation generally prevailed, not only with regard to chapters, but inferior sections also: in imitation of all which we still call some of our old statutes by their initial words, as the statute of _quia emptores_, and that of _circumspecte agatis_. but the most usual method of citing them, especially since the time of edward the second, is by naming the year of the king's reign in which the statute was made, together with the chapter, or particular act, according to it's numeral order; as, 9 geo. ii. c. 4. for all the acts of one session of parliament taken together make properly but one statute; and therefore when two sessions have been held in one year, we usually mention stat. 1. or 2. thus the bill of rights is cited, as 1 w. & m. st. 2. c. 2. signifying that it is the second chapter or act, of the second statute or the laws made in the second sessions of parliament, held in the first year of king william and queen mary.] first, as to their several kinds. statutes are either _general_ or _special_, _public_ or _private_. a general or public act is an universal rule, that regards the whole community; and of these the courts of law are bound to take notice judicially and _ex officio_; without the statute being particularly pleaded, or formally set forth by the party who claims an advantage under it. special or private acts are rather exceptions than rules, being those which only operate upon particular persons, and private concerns; such as the romans intitled _senatus-decreta_, in contradistinction to the _senatus-consulta_, which regarded the whole community[d]: and of these the judges are not bound to take notice, unless they be formally shewn and pleaded. thus, to shew the distinction, the statute 13 eliz. c. 10. to prevent spiritual persons from making leases for longer terms than twenty one years, or three lives, is a public act; it being a rule prescribed to the whole body of spiritual persons in the nation: but an act to enable the bishop of chester to make a lease to a.b. for sixty years, is an exception to this rule; it concerns only the parties and the bishop's successors; and is therefore a private act. [footnote d: gravin. _orig._ 1. â§. 24.] statutes also are either _declaratory_ of the common law, or _remedial_ of some defects therein. declaratory, where the old custom of the kingdom is almost fallen into disuse, or become disputable; in which case the parliament has thought proper, _in perpetuum rei testimonium_, and for avoiding all doubts and difficulties, to declare what the common law is and ever hath been. thus the statute of treasons, 25 edw. iii. cap. 2. doth not make any new species of treasons; but only, for the benefit of the subject, declares and enumerates those several kinds of offence, which before were treason at the common law. remedial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned judges, or from any other cause whatsoever. and, this being done either by enlarging the common law where it was too narrow and circumscribed, or by restraining it where it was too lax and luxuriant, this has occasioned another subordinate division of remedial acts of parliament into _enlarging_ and _restraining_ statutes. to instance again in the case of treason. clipping the current coin of the kingdom was an offence not sufficiently guarded against by the common law: therefore it was thought expedient by statute 5 eliz. c. 11. to make it high treason, which it was not at the common law: so that this was an _enlarging_ statute. at common law also spiritual corporations might lease out their estates for any term of years, till prevented by the statute 13 eliz. beforementioned: this was therefore a _restraining_ statute. secondly, the rules to be observed with regard to the construction of statutes are principally these which follow. 1. there are three points to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy: that is, how the common law stood at the making of the act; what the mischief was, for which the common law did not provide; and what remedy the parliament hath provided to cure this mischief. and it is the business of the judges so to construe the act, as to suppress the mischief and advance the remedy[e]. let us instance again in the same restraining statute of the 13 eliz. by the common law ecclesiastical corporations might let as long leases as they thought proper: the mischief was, that they let long and unreasonable leases, to the impoverishment of their successors: the remedy applied by the statute was by making void all leases by ecclesiastical bodies for longer terms than three lives or twenty one years. now in the construction of this statute it is held, that leases, though for a longer term, if made by a bishop, are not void during the bishop's life; or, if made by a dean with concurrence of his chapter, they are not void during the life of the dean: for the act was made for the benefit and protection of the successor[f]. the mischief is therefore sufficiently suppressed by vacating them after the death of the grantor; but the leases, during their lives, being not within the mischief, are not within the remedy. [footnote e: 3 rep. 7 _b._ co. litt. 11 _b._ 42.] [footnote f: co. litt. 45. 3 rep. 60.] 2. a statute, which treats of things or persons of an inferior rank, cannot by any _general words_ be extended to those of a superior. so a statute, treating of "deans, prebendaries, parsons, vicars, _and others having spiritual promotion_," is held not to extend to bishops, though they have spiritual promotion; deans being the highest persons named, and bishops being of a still higher order[g]. [footnote g: 2 rep. 46.] 3. penal statutes must be construed strictly. thus a statute 1 edw. vi. having enacted that those who are convicted of stealing _horses_ should not have the benefit of clergy, the judges conceived that this did not extend to him that should steal but _one horse_, and therefore procured a new act for that purpose in the following year[h]. and, to come nearer our own times, by the statute 14 geo. ii. c. 6. stealing sheep, _or other cattle_, was made felony without benefit of clergy. but these general words, "or other cattle," being looked upon as much too loose to create a capital offence, the act was held to extend to nothing but mere sheep. and therefore, in the next sessions, it was found necessary to make another statute, 15 geo. ii. c. 34. extending the former to bulls, cows, oxen, steers, bullocks, heifers, calves, and lambs, by name. [footnote h: bac. elem. c. 12.] 4. statutes against frauds are to be liberally and beneficially expounded. this may seem a contradiction to the last rule; most statutes against frauds being in their consequences penal. but this difference is here to be taken: where the statute acts upon the offender, and inflicts a penalty, as the pillory or a fine, it is then to be taken strictly: but when the statute acts upon the offence, by setting aside the fraudulent transaction, here it is to be construed liberally. upon this footing the statute of 13 eliz. c. 5. which avoids all gifts of goods, &c, made to defraud creditors _and others_, was held to extend by the general words to a gift made to defraud the queen of a forfeiture[i]. [footnote i: 3 rep. 82.] 5. one part of a statute must be so construed by another, that the whole may if possible stand: _ut res magis valeat, quam pereat_. as if land be vested in the king and his heirs by act of parliament, saving the right of a; and a has at that time a lease of it for three years: here a shall hold it for his term of three years, and afterwards it shall go to the king. for this interpretation furnishes matter for every clause of the statute to work and operate upon. but 6. a saving, totally repugnant to the body of the act, is void. if therefore an act of parliament vests land in the king and his heirs, saving the right of all persons whatsoever; or vests the land of a in the king, saving the right of a: in either of these cases the saving is totally repugnant to the body of the statute, and (if good) would render the statute of no effect or operation; and therefore the saving is void, and the land vests absolutely in the king[k]. [footnote k: 1 rep. 47.] 7. where the common law and a statute differ, the common law gives place to the statute; and an old statute gives place to a new one. and this upon the general principle laid down in the last section, that "_leges posteriores priores contrarias abrogant_." but this is to be understood, only when the latter statute is couched in negative terms, or by it's matter necessarily implies a negative. as if a former act says, that a juror upon such a trial shall have twenty pounds a year; and a new statute comes and says, he shall have twenty marks: here the latter statute, though it does not express, yet necessarily implies a negative, and virtually repeals the former. for if twenty marks be made qualification sufficient, the former statute which requires twenty pounds is at an end[l]. but if both acts be merely affirmative, and the substance such that both may stand together, here the latter does not repeal the former, but they shall both have a concurrent efficacy. if by a former law an offence be indictable at the quarter sessions, and a latter law makes the same offence indictable at the assises; here the jurisdiction of the sessions is not taken away, but both have a concurrent jurisdiction, and the offender may be prosecuted at either; unless the new statute subjoins express negative words, as, that the offence shall be indictable at the assises, _and not elsewhere_[m]. [footnote l: jenk. cent. 2. 73.] [footnote m: 11 rep. 63.] 8. if a statute, that repeals another, is itself repealed afterwards, the first statute is hereby revived, without any formal words for that purpose. so when the statutes of 26 and 35 hen. viii, declaring the king to be the supreme head of the church, were repealed by a statute 1 & 2 ph. and mary, and this latter statute was afterwards repealed by an act of 1 eliz. there needed not any express words of revival in queen elizabeth's statute, but these acts of king henry were impliedly and virtually revived[n]. [footnote n: 4 inst. 325.] 9. acts of parliament derogatory from the power of subsequent parliaments bind not. so the statute 11 hen. vii. c. 1. which directs, that no person for assisting a king _de facto_ shall be attainted of treason by act of parliament or otherwise, is held to be good only as to common prosecutions for high treason; but will not restrain or clog any parliamentary attainder[o]. because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowleges no superior upon earth, which the prior legislature must have been, if it's ordinances could bind the present parliament. and upon the same principle cicero, in his letters to atticus, treats with a proper contempt these restraining clauses which endeavour to tie up the hands of succeeding legislatures. "when you repeal the law itself, says he, you at the same time repeal the prohibitory clause, which guards against such repeal[p]." [footnote o: 4 inst. 43.] [footnote p: _cum lex abrogatur, illud ipsum abrogatur, quo non eam abrogari oporteat._ _l._ 3. _ep._ 23.] 10. lastly, acts of parliament that are impossible to be performed are of no validity; and if there arise out of them collaterally any absurd consequences, manifestly contradictory to common reason, they are, with regard to those collateral consequences, void. i lay down the rule with these restrictions; though i know it is generally laid down more largely, that acts of parliament contrary to reason are void. but if the parliament will positively enact a thing to be done which is unreasonable, i know of no power that can control it: and the examples usually alleged in support of this sense of the rule do none of them prove, that where the main object of a statute is unreasonable the judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be subversive of all government. but where some collateral matter arises out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore they are at liberty to expound the statute by equity, and only _quoad hoc_ disregard it. thus if an act of parliament gives a man power to try all causes, that arise within his manor of dale; yet, if a cause should arise in which he himself is party, the act is construed not to extend to that; because it is unreasonable that any man should determine his own quarrel[q]. but, if we could conceive it possible for the parliament to enact, that he should try as well his own causes as those of other persons, there is no court that has power to defeat the intent of the legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the legislature or no. [footnote q: 8 rep. 118.] these are the several grounds of the laws of england: over and above which, equity is also frequently called in to assist, to moderate, and to explain it. what equity is, and how impossible in it's very essence to be reduced to stated rules, hath been shewn in the preceding section. i shall therefore only add, that there are courts of this kind established for the benefit of the subject, to correct and soften the rigor of the law, when through it's generality it bears too hard in particular cases; to detect and punish latent frauds, which the law is not minute enough to reach; to enforce the execution of such matters of trust and confidence, as are binding in conscience, though perhaps not strictly legal; to deliver from such dangers as are owing to misfortune or oversight; and, in short, to relieve in all such cases as are, _bona fide_, objects of relief. this is the business of our courts of equity, which however are only conversant in matters of property. for the freedom of our constitution will not permit, that in criminal cases a power should be lodged in any judge, to construe the law otherwise than according to the letter. this caution, while it admirably protects the public liberty, can never bear hard upon individuals. a man cannot suffer _more_ punishment than the law assigns, but he may suffer _less_. the laws cannot be strained by partiality to inflict a penalty beyond what the letter will warrant; but in cases where the letter induces any apparent hardship, the crown has the power to pardon. section the fourth. of the countries subject to the laws of england. the kingdom of england, over which our municipal laws have jurisdiction, includes not, by the common law, either wales, scotland, or ireland, or any other part of the king's dominions, except the territory of england only. and yet the civil laws and local customs of this territory do now obtain, in part or in all, with more or less restrictions, in these and many other adjacent countries; of which it will be proper first to take a review, before we consider the kingdom of england itself, the original and proper subject of these laws. wales had continued independent of england, unconquered and uncultivated, in the primitive pastoral state which caesar and tacitus ascribe to britain in general, for many centuries; even from the time of the hostile invasions of the saxons, when the ancient and christian inhabitants of the island retired to those natural intrenchments, for protection from their pagan visitants. but when these invaders themselves were converted to christianity, and settled into regular and potent governments, this retreat of the antient britons grew every day narrower; they were overrun by little and little, gradually driven from one fastness to another, and by repeated losses abridged of their wild independence. very early in our history we find their princes doing homage to the crown of england; till at length in the reign of edward the first, who may justly be stiled the conqueror of wales, the line of their antient princes was abolished, and the king of england's eldest son became, as a matter of course, their titular prince: the territory of wales being then entirely annexed to the dominion of the crown of england[a], or, as the statute of rutland[b] expresses it, "_terra walliae cum incolis suis, prius regi jure feodali subjecta_, (of which homage was the sign) _jam in proprietatis dominium totaliter et cum integritate conversa est, et coronae regni angliae tanquam pars corporis ejusdem annexa et unita_." by the statute also of wales[c] very material alterations were made in divers parts of their laws, so as to reduce them nearer to the english standard, especially in the forms of their judicial proceedings: but they still retained very much of their original polity, particularly their rule of inheritance, viz. that their lands were divided equally among all the issue male, and did not descend to the eldest son alone. by other subsequent statutes their provincial immunities were still farther abridged: but the finishing stroke to their independency, was given by the statute 27 hen. viii. c. 26. which at the same time gave the utmost advancement to their civil prosperity, by admitting them to a thorough communication of laws with the subjects of england. thus were this brave people gradually conquered into the enjoyment of true liberty; being insensibly put upon the same footing, and made fellow-citizens with their conquerors. a generous method of triumph, which the republic of rome practised with great success; till she reduced all italy to her obedience, by admitting the vanquished states to partake of the roman privileges. [footnote a: vaugh. 400.] [footnote b: 10 edw. i.] [footnote c: 12 edw. i.] it is enacted by this statute 27 hen. viii, 1. that the dominion of wales shall be for ever united to the kingdom of england. 2. that all welchmen born shall have the same liberties as other the king's subjects. 3. that lands in wales shall be inheritable according to the english tenures and rules of descent. 4. that the laws of england, and no other, shall be used in wales: besides many other regulations of the police of this principality. and the statute 34 & 35 hen. viii. c. 26. confirms the same, adds farther regulations, divides it into twelve shires, and, in short, reduces it into the same order in which it stands at this day; differing from the kingdom of england in only a few particulars, and those too of the nature of privileges, (such as having courts within itself, independent of the process of westminster hall) and some other immaterial peculiarities, hardly more than are to be found in many counties of england itself. the kingdom of scotland, notwithstanding the union of the crowns on the accession of their king james vi to that of england, continued an entirely separate and distinct kingdom for above a century, though an union had been long projected; which was judged to be the more easy to be done, as both kingdoms were antiently under the same government, and still retained a very great resemblance, though far from an identity, in their laws. by an act of parliament 1 jac. i. c. 1. it is declared, that these two, mighty, famous, and antient kingdoms were formerly one. and sir edward coke observes[d], how marvellous a conformity there was, not only in the religion and language of the two nations, but also in their antient laws, the descent of the crown, their parliaments, their titles of nobility, their officers of state and of justice, their writs, their customs, and even the language of their laws. upon which account he supposes the common law of each to have been originally the same, especially as their most antient and authentic book, called _regiam majestatem_ and containing the rules of _their_ antient common law, is extremely similar that of glanvil, which contains the principles of _ours_, as it stood in the reign of henry ii. and the many diversities, subsisting between the two laws at present, may be well enough accounted for, from a diversity of practice in two large and uncommunicating jurisdictions, and from the acts of two distinct and independent parliaments, which have in many points altered and abrogated the old common law of both kingdoms. [footnote d: 4 inst. 345.] however sir edward coke, and the politicians of that time, conceived great difficulties in carrying on the projected union: but these were at length overcome, and the great work was happily effected in 1707, 5 anne; when twenty five articles of union were agreed to by the parliaments of both nations: the purport of the most considerable being as follows: 1. that on the first of may 1707, and for ever after, the kingdoms of england and scotland, shall be united into one kingdom, by the name of great britain. 2. the succession to the monarchy of great britain shall be the same as was before settled with regard to that of england. 3. the united kingdom shall be represented by one parliament. 4. there shall be a communication of all rights and privileges between the subjects of both kingdoms, except where it is otherwise agreed. 9. when england raises 2,000,000_l._ by a land tax, scotland shall raise 48,000_l._ 16, 17. the standards of the coin, of weights, and of measures, shall be reduced to those of england, throughout the united kingdoms. 18. the laws relating to trade, customs, and the excise, shall be the same in scotland as in england. but all the other laws of scotland shall remain in force; but alterable by the parliament of great britain. yet with this caution; that laws relating to public policy are alterable at the discretion of the parliament; laws relating to private rights are not to be altered but for the evident utility of the people of scotland. 22. sixteen peers are to be chosen to represent the peerage of scotland in parliament, and forty five members to sit in the house of commons. 23. the sixteen peers of scotland shall have all privileges of parliament: and all peers of scotland shall be peers of great britain, and rank next after those of the same degree at the time of the union, and shall have all privileges of peers, except sitting in the house of lords and voting on the trial of a peer. these are the principal of the twenty five articles of union, which are ratified and confirmed by statute 5 ann. c. 8. in which statute there are also two acts of parliament recited; the one of scotland, whereby the church of scotland, and also the four universities of that kingdom, are established for ever, and all succeeding sovereigns are to take an oath inviolably to maintain the same; the other of england, 5 ann. c. 6. whereby the acts of uniformity of 13 eliz. and 13 car. ii. (except as the same had been altered by parliament at that time) and all other acts then in force for the preservation of the church of england, are declared perpetual; and it is stipulated, that every subsequent king and queen shall take an oath inviolably to maintain the same within england, ireland, wales, and the town of berwick upon tweed. and it is enacted, that these two acts "shall for ever be observed as fundamental and essential conditions of the union." upon these articles, and act of union, it is to be observed, 1. that the two kingdoms are now so inseparably united, that nothing can ever disunite them again, but an infringement of those points which, when they were separate and independent nations, it was mutually stipulated should be "fundamental and essential conditions of the union." 2. that whatever else may be deemed "fundamental and essential conditions," the preservation of the two churches, of england and scotland, in the same state that they were in at the time of the union, and the maintenance of the acts of uniformity which establish our common prayer, are expressly declared so to be. 3. that therefore any alteration in the constitutions of either of those churches, or in the liturgy of the church of england, would be an infringement of these "fundamental and essential conditions," and greatly endanger the union. 4. that the municipal laws of scotland are ordained to be still observed in that part of the island, unless altered by parliament; and, as the parliament has not yet thought proper, except in a few instances, to alter them, they still (with regard to the particulars unaltered) continue in full force. wherefore the municipal or common laws of england are, generally speaking, of no force or validity in scotland; and, of consequence, in the ensuing commentaries, we shall have very little occasion to mention, any farther than sometimes by way of illustration, the municipal laws of that part of the united kingdoms. the town of berwick upon tweed, though subject to the crown of england ever since the conquest of it in the reign of edward iv, is not part of the kingdom of england, nor subject to the common law; though it is subject to all acts of parliament, being represented by burgesses therein. and therefore it was declared by statute 20 geo. ii. c. 42. that where england only is mentioned in any act of parliament, the same notwithstanding shall be deemed to comprehend the dominion of wales, and town of berwick upon tweed. but the general law there used is the scots law, and the ordinary process of the courts of westminster-hall is there of no authority[e]. [footnote e: 1 sid. 382. 2 show. 365.] as to ireland, that is still a distinct kingdom; though a dependent, subordinate kingdom. it was only entitled the dominion or lordship of ireland[f], and the king's stile was no other than _dominus hiberniae_, lord of ireland, till the thirty third year of king henry the eighth; when he assumed the title of king, which is recognized by act of parliament 35 hen. viii. c. 3. but, as scotland and england are now one and the same kingdom, and yet differ in their municipal laws; so england and ireland are, on the other hand, distinct kingdoms, and yet in general agree in their laws. the inhabitants of ireland are, for the most part, descended from the english, who planted it as a kind of colony, after the conquest of it by king henry the second, at which time they carried over the english laws along with them. and as ireland, thus conquered, planted, and governed, still continues in a state of dependence, it must necessarily conform to, and be obliged by such laws as the superior state thinks proper to prescribe. [footnote f: _stat. hiberniae._ 14 hen. iii.] at the time of this conquest the irish were governed by what they called the brehon law, so stiled from the irish name of judges, who were denominated brehons[g]. but king john in the twelfth year of his reign went into ireland, and carried over with him many able sages of the law; and there by his letters patent, in right of the dominion of conquest, is said to have ordained and established that ireland should be governed by the laws of england[h]: which letters patent sir edward coke[i] apprehends to have been there confirmed in parliament. but to this ordinance many of the irish were averse to conform, and still stuck to their brehon law: so that both henry the third[k] and edward the first[l] were obliged to renew the injunction; and at length in a parliament holden at kilkenny, 40 edw. iii, under lionel duke of clarence, the then lieutenant of ireland, the brehon law was formally abolished, it being unanimously declared to be indeed no law, but a lewd custom crept in of later times. and yet, even in the reign of queen elizabeth, the wild natives still kept and preserved their brehon law; which is described[m] to have been "a rule of right unwritten, but delivered by tradition from one to another, in which oftentimes there appeared great shew of equity in determining the right between party and party, but in many things repugnant quite both to god's law and man's." the latter part of which character is alone allowed it under edward the first and his grandson. [footnote g: 4 inst. 358. edm. spenser's state of ireland. p. 1513. edit. hughes.] [footnote h: vaugh. 294. 2 pryn. rec. 85.] [footnote i: 1 inst. 341.] [footnote k: _a.r._ 30. 1 rym. _foed._ 442.] [footnote l: _a.r._ 5.--_pro eo quod leges quibus utuntur hybernici deo detestabiles existunt, et omni juri dissonant, adeo quod leges censeri non debeant--nobis et consilio nostro satis videtur expediens eisdem utendas concedere leges anglicanas._ 3 pryn. rec. 1218.] [footnote m: edm. spenser. _ibid._] but as ireland was a distinct dominion, and had parliaments of it's own, it is to be observed, that though the immemorial customs, or common law, of england were made the rule of justice in ireland also, yet no acts of the english parliament, since the twelfth of king john, extended into that kingdom; unless it were specially named, or included under general words, such as, "within any of the king's dominions." and this is particularly expressed, and the reason given in the year book[n]: "ireland hath a parliament of it's own, and maketh and altereth laws; and our statutes do not bind them, because they do not send representatives to our parliament: but their persons are the king's subjects, like as the inhabitants of calais, gascoigny, and guienne, while they continued under the king's subjection." the method made use of in ireland, as stated by sir edward coke[o], of making statutes in their parliaments, according to poynings' law, of which hereafter, is this: 1. the lord lieutenant and council of ireland must certify to the king under the great seal of ireland the acts proposed to be passed. 2. the king and council of england are to consider, approve, alter, or reject the said acts; and certify them back again under the great seal of england. and then, 3. they are to be proposed, received, or rejected in the parliament of ireland. by this means nothing was left to the parliament in ireland, but a bare negative or power of rejecting, not of proposing, any law. but the usage now is, that bills are often framed in either house of parliament under the denomination of heads for a bill or bills; and in that shape they are offered to the consideration of the lord lieutenant and privy council, who then reject them at pleasure, without transmitting them to england. [footnote n: 2 ric. iii. pl. 12.] [footnote o: 4 inst. 353.] but the irish nation, being excluded from the benefit of the english statutes, were deprived of many good and profitable laws, made for the improvement of the common law: and, the measure of justice in both kingdoms becoming thereby no longer uniform, therefore in the 10 hen. vii. a set of statutes passed in ireland, (sir edward poynings being then lord deputy, whence it is called poynings' law) by which it was, among other things, enacted, that all acts of parliament before made in england, should be of force within the realm of ireland[p]. but, by the same rule that no laws made in england, between king john's time and poynings' law, were then binding in ireland, it follows that no acts of the english parliament made since the 10 hen. vii. do now bind the people of ireland, unless specially named or included under general words[q]. and on the other hand it is equally clear, that where ireland is particularly named, or is included under general words, they are bound by such acts of parliament. for this follows from the very nature and constitution of a dependent state: dependence being very little else, but an obligation to conform to the will or law of that superior person or state, upon which the inferior depends. the original and true ground of this superiority is the right of conquest: a right allowed by the law of nations, if not by that of nature; and founded upon a compact either expressly or tacitly made between the conqueror and the conquered, that if they will acknowlege the victor for their master, he will treat them for the future as subjects, and not as enemies[r]. [footnote p: 4 inst. 351.] [footnote q: 12 rep. 112.] [footnote r: puff. l. of n. 8. 6. 24.] but this state of dependence being almost forgotten, and ready to be disputed by the irish nation, it became necessary some years ago to declare how that matter really stood: and therefore by statute 6 geo. i. c. 5. it is declared, that the kingdom of ireland ought to be subordinate to, and dependent upon, the imperial crown of great britain, as being inseparably united thereto; and that the king's majesty, with the consent of the lords and commons of great britain in parliament, hath power to make laws to bind the people of ireland. thus we see how extensively the laws of ireland communicate with those of england: and indeed such communication is highly necessary, as the ultimate resort from the courts of justice in ireland is, as in wales, to those in england; a writ of error (in the nature of an appeal) lying from the king's bench in ireland to the king's bench in england[s], as the appeal from all other courts in ireland lies immediately to the house of lords here: it being expressly declared, by the same statute 6 geo. i. c. 5. that the peers of ireland have no jurisdiction to affirm or reverse any judgments or decrees whatsoever. the propriety, and even necessity, in all inferior dominions, of this constitution, "that, though justice be in general administred by courts of their own, yet that the appeal in the last resort ought to be to the courts of the superior state," is founded upon these two reasons. 1. because otherwise the law, appointed or permitted to such inferior dominion, might be insensibly changed within itself, without the assent of the superior. 2. because otherwise judgments might be given to the disadvantage or diminution of the superiority; or to make the dependence to be only of the person of the king, and not of the crown of england[t]. [footnote s: this was law in the time of hen. viii. as appears by the antient book, entituled, _diversity of courts, c. bank le roy_.] [footnote t: vaugh. 402.] with regard to the other adjacent islands which are subject to the crown of great britain, some of them (as the isle of wight, of portland, of thanet, &c.) are comprized within some neighbouring county, and are therefore to be looked upon as annexed to the mother island, and part of the kingdom of england. but there are others, which require a more particular consideration. and, first, the isle of man is a distinct territory from england and is not governed by our laws; neither doth any act of parliament extend to it, unless it be particularly named therein; and then an act of parliament is binding there[u]. it was formerly a subordinate feudatory kingdom, subject to the kings of norway; then to king john and henry iii of england; afterwards to the kings of scotland; and then again to the crown of england: and at length we find king henry iv claiming the island by right of conquest, and disposing of it to the earl of northumberland; upon whose attainder it was granted (by the name of the lordship of man) to sir john de stanley by letters patent 7 hen. iv[w]. in his lineal descendants it continued for eight generations, till the death of ferdinando earl of derby, _a.d._ 1594; when a controversy arose concerning the inheritance thereof, between his daughters and william his surviving brother: upon which, and a doubt that was started concerning the validity of the original patent[x], the island was seised into the queen's hands, and afterwards various grants were made of it by king james the first; all which being expired or surrendered, it was granted afresh in 7 jac. i. to william earl of derby, and the heirs male of his body, with remainder to his heirs general; which grant was the next year confirmed by act of parliament, with a restraint of the power of alienation by the said earl and his issue male. on the death of james earl of derby, _a.d._ 1735, the male line of earl william failing, the duke of atholl succeeded to the island as heir general by a female branch. in the mean time, though the title of king had long been disused, the earls of derby, as lords of man, had maintained a sort of royal authority therein; by assenting or dissenting to laws, and exercising an appellate jurisdiction. yet, though no english writ, or process from the courts of westminster, was of any authority in man, an appeal lay from a decree of the lord of the island to the king of great britain in council[y]. but, the distinct jurisdiction of this little subordinate royalty being found inconvenient for the purposes of public justice, and for the revenue, (it affording a convenient asylum for debtors, outlaws, and smugglers) authority was given to the treasury by statute 12 geo. i. c. 28. to purchase the interest of the then proprietors for the use of the crown: which purchase hath at length been completed in this present year 1765, and confirmed by statutes 5 geo. iii. c. 26, & 39. whereby the whole island and all it's dependencies, so granted as aforesaid, (except the landed property of the atholl family, their manerial rights and emoluments, and the patronage of the bishoprick[z] and other ecclesiastical benefices) are unalienably vested in the crown, and subjected to the regulations of the british excise and customs. [footnote u: 4 inst. 284. 2 and. 116.] [footnote w: selden. tit. hon. 1. 3.] [footnote x: camden. eliz. _a.d._ 1594.] [footnote y: 1 p.w. 329.] [footnote z: the bishoprick of man, or sodor, or sodor and man, was formerly within the province of canterbury, but annexed to that of york by statute 33 hen. viii. c. 31.] the islands of jersey, guernsey, sark, alderney, and their appendages, were parcel of the duchy of normandy, and were united to the crown of england by the first princes of the norman line. they are governed by their own laws, which are for the most part the ducal customs of normandy, being collected in an antient book of very great authority, entituled, _le grand coustumier_. the king's writ, or process from the courts of westminster, is there of no force; but his commission is. they are not bound by common acts of our parliaments, unless particularly named[a]. all causes are originally determined by their own officers, the bailiffs and jurats of the islands; but an appeal lies from them to the king in council, in the last resort. [footnote a: 4 inst. 286.] besides these adjacent islands, our more distant plantations in america, and elsewhere, are also in some respects subject to the english laws. plantations, or colonies in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desart and uncultivated, and peopling them from the mother country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. and both these rights are founded upon the law of nature, or at least upon that of nations. but there is a difference between these two species of colonies, with respect to the laws by which they are bound. for it is held[b], that if an uninhabited country be discovered and planted by english subjects, all the english laws are immediately there in force. for as the law is the birthright of every subject, so wherever they go they carry their laws with them[c]. but in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws; but, till he does actually change them, the antient laws of the country remain, unless such as are against the law of god, as in the case of an infidel country[d]. [footnote b: salk. 411. 666.] [footnote c: 2 p. wms. 75.] [footnote d: 7 rep. 17 _b._ calvin's case. show. parl. c. 31.] our american plantations are principally of this latter sort, being obtained in the last century either by right of conquest and driving out the natives (with what natural justice i shall not at present enquire) or by treaties. and therefore the common law of england, as such, has no allowance or authority there; they being no part of the mother country, but distinct (though dependent) dominions. they are subject however to the control of the parliament; though (like ireland, man, and the rest) not bound by any acts of parliament, unless particularly named. the form of government in most of them is borrowed from that of england. they have a governor named by the king, (or in some proprietary colonies by the proprietor) who is his representative or deputy. they have courts of justice of their own, from whose decisions an appeal lies to the king in council here in england. their general assemblies which are their house of commons, together with their council of state being their upper house, with the concurrence of the king or his representative the governor, make laws suited to their own emergencies. but it is particularly declared by statute 7 & 8 w. iii. c. 22. that all laws, by-laws, usages, and customs, which shall be in practice in any of the plantations, repugnant to any law, made or to be made in this kingdom relative to the said plantations, shall be utterly void and of none effect. these are the several parts of the dominions of the crown of great britain, in which the municipal laws of england are not of force or authority, merely _as_ the municipal laws of england. most of them have probably copied the spirit of their own law from this original; but then it receives it's obligation, and authoritative force, from being the law of the country. as to any foreign dominions which may belong to the person of the king by hereditary descent, by purchase, or other acquisition, as the territory of hanover, and his majesty's other property in germany; as these do not in any wise appertain to the crown of these kingdoms, they are entirely unconnected with the laws of england, and do not communicate with this nation in any respect whatsoever. the english legislature had wisely remarked the inconveniences that had formerly resulted from dominions on the continent of europe; from the norman territory which william the conqueror brought with him, and held in conjunction with the english throne; and from anjou, and it's appendages, which fell to henry the second by hereditary descent. they had seen the nation engaged for near four hundred years together in ruinous wars for defence of these foreign dominions; till, happily for this country, they were lost under the reign of henry the sixth. they observed that from that time the maritime interests of england were better understood and more closely pursued: that, in consequence of this attention, the nation, as soon as she had rested from her civil wars, began at this period to flourish all at once; and became much more considerable in europe than when her princes were possessed of a larger territory, and her counsels distracted by foreign interests. this experience and these considerations gave birth to a conditional clause in the act[e] of settlement, which vested the crown in his present majesty's illustrious house, "that in case the crown and imperial dignity of this realm shall hereafter come to any person not being a native of this kingdom of england, this nation shall not be obliged to engage in any war for the defence of any dominions or territories which do not belong to the crown of england, without consent of parliament." [footnote e: stat. 12 & 13 w. iii. c. 3.] we come now to consider the kingdom of england in particular, the direct and immediate subject of those laws, concerning which we are to treat in the ensuing commentaries. and this comprehends not only wales, of which enough has been already said, but also part of the sea. the main or high seas are part of the realm of england, for thereon our courts of admiralty have jurisdiction, as will be shewn hereafter; but they are not subject to the common law[f]. this main sea begins at the low-water-mark. but between the high-water-mark, and the low-water-mark, where the sea ebbs and flows, the common law and the admiralty have _divisum imperium_, an alternate jurisdiction; one upon the water, when it is full sea; the other upon the land, when it is an ebb[g]. [footnote f: co. litt. 260.] [footnote g: finch. l. 78.] the territory of england is liable to two divisions; the one ecclesiastical, the other civil. 1. the ecclesiastical division is, primarily, into two provinces, those of canterbury and york. a province is the circuit of an arch-bishop's jurisdiction. each province contains divers dioceses, or sees of suffragan bishops; whereof canterbury includes twenty one, and york three; besides the bishoprick of the isle of man, which was annexed to the province of york by king henry viii. every diocese is divided into archdeaconries, whereof there are sixty in all; each archdeaconry into rural deanries, which are the circuit of the archdeacon's and rural dean's jurisdiction, of whom hereafter; and every deanry is divided into parishes[h]. [footnote h: co. litt. 94.] a parish is that circuit of ground in which the souls under the care of one parson or vicar do inhabit. these are computed to be near ten thousand in number. how antient the division of parishes is, may at present be difficult to ascertain; for it seems to be agreed on all hands, that in the early ages of christianity in this island, parishes were unknown, or at least signified the same that a diocese does now. there was then no appropriation of ecclesiastical dues to any particular church; but every man was at liberty to contribute his tithes to whatever priest or church he pleased, provided only that he did it to some: or, if he made no special appointment or appropriation thereof, they were paid into the hands of the bishop, whose duty it was to distribute them among the clergy and for other pious purposes according to his own discretion[i]. [footnote i: seld. of tith. 9. 4. 2 inst. 646. hob. 296.] mr camden[k] says england was divided into parishes by arch-bishop honorius about the year 630. sir henry hobart[l] lays it down that parishes were first erected by the council of lateran, which was held _a.d._ 1179. each widely differing from the other, and both of them perhaps from the truth; which will probably be found in the medium between the two extremes. for mr selden has clearly shewn[m], that the clergy lived in common without any division of parishes, long after the time mentioned by camden. and it appears from the saxon laws, that parishes were in being long before the date of that council of lateran, to which they are ascribed by hobart. [footnote k: in his britannia.] [footnote l: hob. 296.] [footnote m: of tithes. c. 9.] we find the distinction of parishes, nay even of mother-churches, so early as in the laws of king edgar, about the year 970. before that time the consecration of tithes was in general _arbitrary_; that is, every man paid his own (as was before observed) to what church or parish he pleased. but this being liable to be attended with either fraud, or at least caprice, in the persons paying; and with either jealousies or mean compliances in such as were competitors for receiving them; it was now ordered by the law of king edgar[n], that "_dentur omnes decimae primariae ecclesiae ad quam parochia pertinet_." however, if any thane, or great lord, had a church within his own demesnes, distinct from the mother-church, in the nature of a private chapel; then, provided such church had a coemitery or consecrated place of burial belonging to it, he might allot one third of his tithes for the maintenance of the officiating minister: but, if it had no coemitery, the thane must himself have maintained his chaplain by some other means; for in such case _all_ his tithes were ordained to be paid to the _primariae ecclesiae_ or mother-church[o]. [footnote n: _c._ 1.] [footnote o: _ibid._ _c._ 2. see also the laws of king canute, c. 11. about the year 1030.] this proves that the kingdom was then universally divided into parishes; which division happened probably not all at once, but by degrees. for it seems pretty clear and certain that the boundaries of parishes were originally ascertained by those of a manor or manors: since it very seldom happens that a manor extends itself over more parishes than one, though there are often many manors in one parish. the lords, as christianity spread itself, began to build churches upon their own demesnes or wastes, to accommodate their tenants in one or two adjoining lordships; and, in order to have divine service regularly performed therein, obliged all their tenants to appropriate their tithes to the maintenance of the one officiating minister, instead of leaving them at liberty to distribute them among the clergy of the diocese in general: and this tract of land, the tithes whereof were so appropriated, formed a distinct parish. which will well enough account for the frequent intermixture of parishes one with another. for if a lord had a parcel of land detached from the main of his estate, but not sufficient to form a parish of itself, it was natural for him to endow his newly erected church with the tithes of those disjointed lands; especially if no church was then built in any lordship adjoining to those out-lying parcels. thus parishes were gradually formed, and parish churches endowed with the tithes that arose within the circuit assigned. but some lands, either because they were in the hands of irreligious and careless owners, or were situate in forests and desart places, or for other now unsearchable reasons, were never united to any parish, and therefore continue to this day extraparochial; and their tithes are now by immemorial custom payable to the king instead of the bishop, in trust and confidence that he will distribute them, for the general good of the church[p]. and thus much for the ecclesiastical division of this kingdom. [footnote p: 2 inst. 647. 2 rep. 44. cro. eliz. 512.] 2. the civil division of the territory of england is into counties, of those counties into hundreds, of those hundreds into tithings or towns. which division, as it now stands, seems to owe it's original to king alfred; who, to prevent the rapines and disorders which formerly prevailed in the realm, instituted tithings; so called, from the saxon, because _ten_ freeholders with their families composed one. these all dwelt together, and were sureties or free pledges to the king for the good behaviour of each other; and, if any offence were committed in their district, they were bound to have the offender forthcoming[q]. and therefore antiently no man was suffered to abide in england above forty days, unless he were enrolled in some tithing or decennary[r]. one of the principal inhabitants of the tithing is annually appointed to preside over the rest, being called the tithing-man, the headborough, (words which speak their own etymology) and in some countries the borsholder, or borough's-ealder, being supposed the discreetest man in the borough, town, or tithing[s]. [footnote q: _flet._ 1. 47. this the laws of king edward the confessor, c. 20. very justly intitle "_summa et maxima securitas, per quam omnes statu firmissimo sustinentur;--quae hoc modo fiebat, quod sub decennali fidejussione debebant esse universi, &c._"] [footnote r: mirr. c. 1. â§. 3.] [footnote s: finch. l. 8.] tithings, towns, or vills, are of the same signification in law; and had, each of them, originally a church and celebration of divine service, sacraments, and burials; which to have, or have had, separate to itself, is the essential distinction of a town, according to sir edward coke[t]. the word _town_ or _vill_ is indeed, by the alteration of times and language, now become a generical term, comprehending under it the several species of cities, boroughs, and common towns. a city is a town incorporated, which is or hath been the see of a bishop; and though the bishoprick be dissolved, as at westminster, yet still it remaineth a city[u]. a borough is now understood to be a town, either corporate or not, that sendeth burgesses to parliament[w]. other towns there are, to the number sir edward coke says[x] of 8803, which are neither cities nor boroughs; some of which have the privileges of markets, and others not; but both are equally towns in law. to several of these towns there are small appendages belonging, called hamlets; which are taken notice of in the statute of exeter[y], which makes frequent mention of entire vills, demi-vills, and hamlets. entire vills sir henry spelman[z] conjectures to have consisted of ten freemen, or frank-pledges, demi-vills of five, and hamlets of less than five. these little collections of houses are sometimes under the same administration as the town itself, sometimes governed by separate officers; in which last case it is, to some purposes in law, looked upon as a distinct township. these towns, as was before hinted, contained each originally but one parish, and one tithing; though many of them now, by the encrease of inhabitants, are divided into several parishes and tithings: and sometimes, where there is but one parish there are two or more vills or tithings. [footnote t: 1 inst. 115 _b._] [footnote u: co. litt. 109 _b._] [footnote w: litt. â§. 164.] [footnote x: 1 inst. 116.] [footnote y: 14 edw. i.] [footnote z: gloss. 274.] as ten families of freeholders made up a town or tithing, so ten tithings composed a superior division, called a hundred, as consisting of ten times ten families. the hundred is governed by an high constable or bailiff, and formerly there was regularly held in it the hundred court for the trial of causes, though now fallen into disuse. in some of the more northern counties these hundreds are called wapentakes[a]. [footnote a: seld. _in fortesc._ _c._ 24.] the subdivision of hundreds into tithings seems to be most peculiarly the invention of alfred: the institution of hundreds themselves he rather introduced than invented. for they seem to have obtained in denmark[b]: and we find that in france a regulation of this sort was made above two hundred years before; set on foot by clotharius and childebert, with a view of obliging each district to answer for the robberies committed in it's own division. these divisions were, in that country, as well military as civil; and each contained a hundred freemen; who were subject to an officer called the _centenarius_; a number of which _centenarii_ were themselves subject to a superior officer called the count or _comes_[c]. and indeed this institution of hundreds may be traced back as far as the antient germans, from whom were derived both the franks who became masters of gaul, and the saxons who settled in england. for we read in tacitus[d], that both the thing and the name were well known to that warlike people. "_centeni ex singulis pagis sunt, idque ipsum inter suos vocantur; et quod primo numerus fuit, jam nomen et honor est._" [footnote b: seld. tit. of hon. 2. 5. 3.] [footnote c: montesq. sp. l. 30. 17.] [footnote d: _de morib. german._ 6.] an indefinite number of these hundreds make up a county or shire. shire is a saxon word signifying a division; but a county, _comitatus_, is plainly derived from _comes_, the count of the franks; that is, the earl, or alderman (as the saxons called him) of the shire, to whom the government of it was intrusted. this he usually exercised by his deputy, still called in latin _vice-comes_, and in english the sheriff, shrieve, or shire-reeve, signifying the officer of the shire; upon whom by process of time the civil administration of it is now totally devolved. in some counties there is an intermediate division, between the shire and the hundreds, as lathes in kent, and rapes in sussex, each of them containing about three or four hundreds apiece. these had formerly their lathe-reeves and rape-reeves, acting in subordination to the shire-reeve. where a county is divided into _three_ of these intermediate jurisdictions, they are called trithings[e], which were antiently governed by a trithing-reeve. these trithings still subsist in the large county of york, where by an easy corruption they are denominated ridings; the north, the east, and the west-riding. the number of counties in england and wales have been different at different times: at present there are forty in england, and twelve in wales. [footnote e: _ll. edw._ _c._ 34.] three of these counties, chester, durham, and lancaster, are called counties palatine. the two former are such by prescription, or immemorial custom; or, at least as old as the norman conquest[f]: the latter was created by king edward iii, in favour of henry plantagenet, first earl and then duke of lancaster, whose heiress john of gant the king's son had married; and afterwards confirmed in parliament, to honour john of gant himself; whom, on the death of his father-in-law, he had also created duke of lancaster[g]. counties palatine are so called _a palatio_; because the owners thereof, the earl of chester, the bishop of durham, and the duke of lancaster, had in those counties _jura regalia_, as fully as the king hath in his palace; _regalem potestatem in omnibus_, as bracton expresses it[h]. they might pardon treasons, murders, and felonies; they appointed all judges and justices of the peace; all writs and indictments ran in their names, as in other counties in the king's; and all offences were said to be done against their peace, and not, as in other places, _contra pacem domini regis_[i]. and indeed by the antient law, in all peculiar jurisdictions, offences were said to be done against his peace in whose court they were tried; in a court leet, _contra pacem domini_; in the court of a corporation, _contra pacem ballivorum_; in the sheriff's court or tourn, _contra pacem vice-comitis_[k]. these palatine privileges were in all probability originally granted to the counties of chester and durham, because they bordered upon enemies countries, wales and scotland; in order that the owners, being encouraged by so large an authority, might be the more watchful in it's defence; and that the inhabitants, having justice administered at home, might not be obliged to go out of the county, and leave it open to the enemies incursions. and upon this account also there were formerly two other counties palatine, pembrokeshire and hexamshire, the latter now united with northumberland: but these were abolished by parliament, the former in 27 hen. viii, the latter in 14 eliz. and in 27 hen. viii likewise, the powers beforementioned of owners of counties palatine were abridged; the reason for their continuance in a manner ceasing: though still all writs are witnessed in their names, and all forfeitures for treason by the common law accrue to them[l]. [footnote f: seld. tit. hon. 2. 5. 8.] [footnote g: plowd. 215.] [footnote h: _l._ 3. _c._ 8. â§. 4.] [footnote i: 4. inst. 204.] [footnote k: seld. _in hengham magn._ _c._ 2.] [footnote l: 4 inst. 205.] of these three, the county of durham is now the only one remaining in the hands of a subject. for the earldom of chester, as camden testifies, was united to the crown by henry iii, and has ever since given title to the king's eldest son. and the county palatine, or duchy, of lancaster was the property of henry of bolinbroke, the son of john of gant, at the time when he wrested the crown from king richard ii, and assumed the title of henry iv. but he was too prudent to suffer this to be united to the crown, lest, if he lost one, he should lose the other also. for, as plowden[m] and sir edward coke[n] observe, "he knew he had the duchy of lancaster by sure and indefeasible title, but that his title to the crown was not so assured: for that after the decease of richard ii the right of the crown was in the heir of lionel duke of clarence, _second_ son of edward iii; john of gant, father to this henry iv, being but the _fourth_ son." and therefore he procured an act of parliament, in the first year of his reign, to keep it distinct and separate from the crown, and so it descended to his son, and grandson, henry v, and henry vi. henry vi being attainted in 1 edw. iv, this duchy was declared in parliament to have become forfeited to the crown[o], and at the same time an act was made to keep it still distinct and separate from other inheritances of the crown. and in 1 hen. vii another act was made to vest the inheritance thereof in henry vii and his heirs; and in this state, say sir edward coke[p] and lambard[q], viz. in the natural heirs or posterity of henry vii, did the right of the duchy remain to their days; a separate and distinct inheritance from that of the crown of england[r]. [footnote m: 215.] [footnote n: 4 inst. 205.] [footnote o: 1 ventr. 155.] [footnote p: 4 inst. 206.] [footnote q: archeion. 233.] [footnote r: if this notion of lambard and coke be well founded, it might have become a very curious question at the time of the revolution in 1688, in whom the right of the duchy remained after king james's abdication. the attainder indeed of the pretended prince of wales (by statute 13 w. iii. c. 3.) has now put the matter out of doubt. and yet, to give that attainder it's full force in this respect, the object of it must have been supposed legitimate, else he had no interest to forfeit.] the isle of ely is not a county palatine, though sometimes erroneously called so; but only a royal franchise; the bishop having, by grant of king henry the first, _jura regalia_ within the isle of ely, and thereby he exercises a jurisdiction over all causes, as well criminal, as civil[s]. [footnote s: 4 inst. 220.] there are also counties _corporate_; which are certain cities and towns, some with more, some with less territory annexed to them; to which out of special grace and favour the kings of england have granted to be counties of themselves, and not to be comprized in any other county; but to be governed by their own sheriffs and other magistrates, so that no officers of the county at large have any power to intermeddle therein. such are london, york, bristol, norwich, coventry, and many others. and thus much of the countries subject to the laws of england. commentaries on the laws of england. book the first. of the rights of persons. chapter the first. of the absolute rights of individuals. the objects of the laws of england are so very numerous and extensive, that, in order to consider them with any tolerable ease and perspicuity, it will be necessary to distribute them methodically, under proper and distinct heads; avoiding as much as possible divisions too large and comprehensive on the one hand, and too trifling and minute on the other; both of which are equally productive of confusion. now, as municipal law is a rule of civil conduct, commanding what is right, and prohibiting what is wrong; or, as cicero[a], and after him our bracton[b], has expressed it, _sanctio justa, jubens honesta et prohibens contraria_; it follows, that the primary and principal objects of the law are rights, and wrongs. in the prosecution therefore of these commentaries, i shall follow this very simple and obvious division; and shall in the first place consider the _rights_ that are commanded, and secondly the _wrongs_ that are forbidden by the laws of england. [footnote a: 11 _philipp._ 12.] [footnote b: _l._ 1. _c._ 3.] rights are however liable to another subdivision; being either, first, those which concern, and are annexed to the persons of men, and are then called _jura personarum_ or the _rights of persons_; or they are, secondly, such as a man may acquire over external objects, or things unconnected with his person, which are stiled _jura rerum_ or the _rights of things_. wrongs also are divisible into, first, _private wrongs_, which, being an infringement merely of particular rights, concern individuals only, and are called civil injuries; and secondly, _public wrongs_, which, being a breach of general and public rights, affect the whole community, and are called crimes and misdemesnors. the objects of the laws of england falling into this fourfold division, the present commentaries will therefore consist of the four following parts: 1. _the rights of persons_; with the means whereby such rights may be either acquired or lost. 2. _the rights of things_; with the means also of acquiring and losing them. 3. _private wrongs_, or civil injuries; with the means of redressing them by law. 4. _public wrongs_, or crimes and misdemesnors; with the means of prevention and punishment. we are now, first, to consider _the rights of persons_; with the means of acquiring and losing them. now the rights of persons that are commanded to be observed by the municipal law are of two sorts; first, such as are due _from_ every citizen, which are usually called civil _duties_; and, secondly, such as belong _to_ him, which is the more popular acceptation of _rights_ or _jura_. both may indeed be comprized in this latter division; for, as all social duties are of a relative nature, at the same time that they are due _from_ one man, or set of men, they must also be due _to_ another. but i apprehend it will be more clear and easy, to consider many of them as duties required from, rather than as rights belonging to, particular persons. thus, for instance, allegiance is usually, and therefore most easily, considered as the duty of the people, and protection as the duty of the magistrate; and yet they are, reciprocally, the rights as well as duties of each other. allegiance is the right of the magistrate, and protection the right of the people. persons also are divided by the law into either natural persons, or artificial. natural persons are such as the god of nature formed us: artificial are such as created and devised by human laws for the purposes of society and government; which are called corporations or bodies politic. the rights of persons considered in their natural capacities are also of two sorts, absolute, and relative. absolute, which are such as appertain and belong to particular men, merely as individuals or single persons: relative, which are incident to them as members of society, and standing in various relations to each other. the first, that is, absolute rights, will be the subject of the present chapter. by the absolute _rights_ of individuals we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is intitled to enjoy whether out of society or in it. but with regard to the absolute _duties_, which man is bound to perform considered as a mere individual, it is not to be expected that any human municipal laws should at all explain or enforce them. for the end and intent of such laws being only to regulate the behaviour of mankind, as they are members of society, and stand in various relations to each other, they have consequently no business or concern with any but social or relative duties. let a man therefore be ever so abandoned in his principles, or vitious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws. but if he makes his vices public, though they be such as seem principally to affect himself, (as drunkenness, or the like) they then become, by the bad example they set, of pernicious effects to society; and therefore it is then the business of human laws to correct them. here the circumstance of publication is what alters the nature of the case. _public_ sobriety is a relative duty, and therefore enjoined by our laws: _private_ sobriety is an absolute duty, which, whether it be performed or not, human tribunals can never know; and therefore they can never enforce it by any civil sanction. but, with respect to _rights_, the case is different. human laws define and enforce as well those rights which belong to a man considered as an individual, as those which belong to him considered as related to others. for the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. hence it follows, that the first and primary end of human laws is to maintain and regulate these _absolute_ rights of individuals. such rights as are social and _relative_ result from, and are posterior to, the formation of states and societies: so that to maintain and regulate these, is clearly a subsequent consideration. and therefore the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as are absolute, which in themselves are few and simple; and, then, such rights as are relative, which arising from a variety of connexions, will be far more numerous and more complicated. these will take up a greater space in any code of laws, and hence may appear to be more attended to, though in reality they are not, than the rights of the former kind. let us therefore proceed to examine how far all laws ought, and how far the laws of england actually do, take notice of these absolute rights, and provide for their lasting security. the absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. this natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature: being a right inherent in us by birth, and one of the gifts of god to man at his creation, when he endued him with the faculty of freewill. but every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. and this species of legal obedience and conformity is infinitely more desirable, than that wild and savage liberty which is sacrificed to obtain it. for no man, that considers a moment, would wish to retain the absolute and uncontroled power of doing whatever he pleases; the consequence of which is, that every other man would also have the same power; and then there would be no security to individuals in any of the enjoyments of life. political therefore, or civil, liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the publick[c]. hence we may collect that the law, which restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind: but every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny. nay, that even laws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are laws destructive of liberty: whereas if any public advantage can arise from observing such precepts, the control of our private inclinations, in one or two particular points, will conduce to preserve our general freedom in others of more importance; by supporting that state, of society, which alone can secure our independence. thus the statute of king edward iv[d], which forbad the fine gentlemen of those times (under the degree of a lord) to wear pikes upon their shoes or boots of more than two inches in length, was a law that savoured of oppression; because, however ridiculous the fashion then in use might appear, the restraining it by pecuniary penalties could serve no purpose of common utility. but the statute of king charles ii[e], which prescribes a thing seemingly as indifferent; viz. a dress for the dead, who are all ordered to be buried in woollen; is a law consistent with public liberty, for it encourages the staple trade, on which in great measure depends the universal good of the nation. so that laws, when prudently framed, are by no means subversive but rather introductive of liberty; for (as mr locke has well observed[f]) where there is no law, there is no freedom. but then, on the other hand, that constitution or frame of government, that system of laws, is alone calculated to maintain civil liberty, which leaves the subject entire master of his own conduct, except in those points wherein the public good requires some direction or restraint. [footnote c: _facultas ejus, quod cuique facere libet, nisi quid jure prohibetur._ _inst._ 1. 3. 1.] [footnote d: 3 edw. iv. c. 5.] [footnote e: 30 car. ii. st. 1. c. 3.] [footnote f: on gov. p. 2. â§. 57.] the idea and practice of this political or civil liberty flourish in their highest vigour in these kingdoms, where it falls little short of perfection, and can only be lost or destroyed by the folly or demerits of it's owner: the legislature, and of course the laws of england, being peculiarly adapted to the preservation of this inestimable blessing even in the meanest subject. very different from the modern constitutions of other states, on the continent of europe, and from the genius of the imperial law; which in general are calculated to vest an arbitrary and despotic power of controlling the actions of the subject in the prince, or in a few grandees. and this spirit of liberty is so deeply implanted in our constitution, and rooted even in our very soil, that a slave or a negro, the moment he lands in england, falls under the protection of the laws, and with regard to all natural rights becomes _eo instanti_ a freeman[g]. [footnote g: salk. 666.] the absolute rights of every englishman (which, taken in a political and extensive sense, are usually called their liberties) as they are founded on nature and reason, so they are coeval with our form of government; though subject at times to fluctuate and change: their establishment (excellent as it is) being still human. at some times we have seen them depressed by overbearing and tyrannical princes; at others so luxuriant as even to tend to anarchy, a worse state than tyranny itself, as any government is better than none at all. but the vigour of our free constitution has always delivered the nation from these embarrassments, and, as soon as the convulsions consequent on the struggle have been over, the ballance of our rights and liberties has settled to it's proper level; and their fundamental articles have been from time to time asserted in parliament, as often as they were thought to be in danger. first, by the great charter of liberties, which was obtained, sword in hand, from king john; and afterwards, with some alterations, confirmed in parliament by king henry the third, his son. which charter contained very few new grants; but, as sir edward coke[h] observes, was for the most part declaratory of the principal grounds of the fundamental laws of england. afterwards by the statute called _confirmatio cartarum_[i], whereby the great charter is directed to be allowed as the common law; all judgments contrary to it are declared void; copies of it are ordered to be sent to all cathedral churches, and read twice a year to the people; and sentence of excommunication is directed to be as constantly denounced against all those that by word, deed, or counsel act contrary thereto, or in any degree infringe it. next by a multitude of subsequent corroborating statutes, (sir edward coke, i think, reckons thirty two[k],) from the first edward to henry the fourth. then, after a long interval, by _the petition of right_; which was a parliamentary declaration of the liberties of the people, assented to by king charles the first in the beginning of his reign. which was closely followed by the still more ample concessions made by that unhappy prince to his parliament, before the fatal rupture between them; and by the many salutary laws, particularly the _habeas corpus_ act, passed under charles the second. to these succeeded _the bill of rights_, or declaration delivered by the lords and commons to the prince and princess of orange 13 february 1688; and afterwards enacted in parliament, when they became king and queen: which declaration concludes in these remarkable words; "and they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties." and the act of parliament itself[l] recognizes "all and singular the rights and liberties asserted and claimed in the said declaration to be the true, antient, and indubitable rights of the people of this kingdom." lastly, these liberties were again asserted at the commencement of the present century, in the _act of settlement_[m], whereby the crown is limited to his present majesty's illustrious house, and some new provisions were added at the same fortunate aera for better securing our religion, laws, and liberties; which the statute declares to be "the birthright of the people of england;" according to the antient doctrine of the common law[n]. [footnote h: 2 inst. proem.] [footnote i: 25 edw. i.] [footnote k: 2 inst. proem.] [footnote l: 1 w. and m. st. 2. c. 2.] [footnote m: 12 & 13 w. iii. c. 2.] [footnote n: plowd. 55.] thus much for the _declaration_ of our rights and liberties. the rights themselves thus defined by these several statutes, consist in a number of private immunities; which will appear, from what has been premised, to be indeed no other, than either that _residuum_ of natural liberty, which is not required by the laws of society to be sacrificed to public convenience; or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals. these therefore were formerly, either by inheritance or purchase, the rights of all mankind; but, in most other countries of the world being now more or less debased and destroyed, they at present may be said to remain, in a peculiar and emphatical manner, the rights of the people of england. and these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty; and the right of private property: because as there is no other known method of compulsion, or of abridging man's natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense. i. the right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. 1. life is the immediate gift of god, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb. for if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the antient law homicide or manslaughter[o]. but at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemesnor[p]. [footnote o: _si aliquis mulierem praegnantem percusserit, vel ei venenum dederit, per quod fecerit abortivam; si puerperium jam formatum fuerit, et maxime si fuerit animatum, facit homicidium._ bracton. _l._ 3. _c._ 21.] [footnote p: 3 inst. 90.] an infant _in ventre sa mere_, or in the mother's womb, is supposed in law to be born for many purposes. it is capable of having a legacy, or a surrender of a copyhold estate made to it. it may have a guardian assigned to it[q]; and it is enabled to have an estate limited to it's use, and to take afterwards by such limitation, as if it were then actually born[r]. and in this point the civil law agrees with ours[s]. [footnote q: stat. 12 car. ii. c. 24.] [footnote r: stat. 10 & 11 w. iii. c. 16.] [footnote s: _qui in utero sunt, in jure civili intelliguntur in rerum natura esse, cum de eorum commodo agatur._ _ff._ 1. 5. 26.] 2. a man's limbs, (by which for the present we only understand those members which may be useful to him in fight, and the loss of which only amounts to mayhem by the common law) are also the gift of the wise creator; to enable man to protect himself from external injuries in a state of nature. to these therefore he has a natural inherent right; and they cannot be wantonly destroyed or disabled without a manifest breach of civil liberty. both the life and limbs of a man are of such high value, in the estimation of the law of england, that it pardons even homicide if committed _se defendendo_, or in order to preserve them. for whatever is done by a man, to save either life or member, is looked upon as done upon the highest necessity and compulsion. therefore if a man through fear of death or mayhem is prevailed upon to execute a deed, or do any other legal act; these, though accompanied with all other the requisite solemnities, are totally void in law, if forced upon him by a well-grounded apprehension of losing his life, or even his limbs, in case of his non-compliance[t]. and the same is also a sufficient excuse for the commission of many misdemesnors, as will appear in the fourth book. the constraint a man is under in these circumstances is called in law _duress_, from the latin _durities_, of which there are two sorts; duress of imprisonment, where a man actually loses his liberty, of which we shall presently speak; and duress _per minas_, where the hardship is only threatened and impending, which is that we are now discoursing of. duress _per minas_ is either for fear of loss of life, or else for fear of mayhem, or loss of limb. and this fear must be upon sufficient reason; "_non_," as bracton expresses it, "_suspicio cujuslibet vani et meticulosi hominis, sed talis qui possit cadere in virum constantem; talis enim debet esse metus, qui in se contineat vitae periculum, aut corporis cruciatum_[u]." a fear of battery, or being beaten, though never so well grounded, is no duress; neither is the fear of having one's house burnt, or one's goods taken away and destroyed; because in these cases, should the threat be performed, a man may have satisfaction by recovering equivalent damages[w]: but no suitable atonement can be made for the loss of life, or limb. and the indulgence shewn to a man under this, the principal, sort of duress, the fear of losing his life or limbs, agrees also with that maxim of the civil law; _ignoscitur ei qui sanguinem suum qualiter qualiter redemptum voluit_[x]. [footnote t: 2 inst. 483.] [footnote u: _l._ 2. _c._ 5.] [footnote w: 2 inst. 483.] [footnote x: _ff._ 48. 21. 1.] the law not only regards life and member, and protects every man in the enjoyment of them, but also furnishes him with every thing necessary for their support. for there is no man so indigent or wretched, but he may demand a supply sufficient for all the necessities of life, from the more opulent part of the community, by means of the several statutes enacted for the relief of the poor, of which in their proper places. a humane provision; yet, though dictated by the principles of society, discountenanced by the roman laws. for the edicts of the emperor constantine, commanding the public to maintain the children of those who were unable to provide for them, in order to prevent the murder and exposure of infants, an institution founded on the same principle as our foundling hospitals, though comprized in the theodosian code[y], were rejected in justinian's collection. [footnote y: _l._ 11. _t._ 27.] these rights, of life and member, can only be determined by the death of the person; which is either a civil or natural death. the civil death commences if any man be banished the realm[z] by the process of the common law, or enters into religion; that is, goes into a monastery, and becomes there a monk professed: in which cases he is absolutely dead in law, and his next heir shall have his estate. for, such banished man is entirely cut off from society; and such a monk, upon his profession, renounces solemnly all secular concerns: and besides, as the popish clergy claimed an exemption from the duties of civil life, and the commands of the temporal magistrate, the genius of the english law would not suffer those persons to enjoy the benefits of society, who secluded themselves from it, and refused to submit to it's regulations[a]. a monk is therefore accounted _civiliter mortuus_, and when he enters into religion may, like other dying men, make his testament and executors; or, if he makes none, the ordinary may grant administration to his next of kin, as if he were actually dead intestate. and such executors and administrators shall have the same power, and may bring the same actions for debts due _to_ the religious, and are liable to the same actions for those due _from_ him, as if he were naturally deceased[b]. nay, so far has this principle been carried, that when one was bound in a bond to an abbot and his successors, and afterwards made his executors and professed himself a monk of the same abbey, and in process of time was himself made abbot thereof; here the law gave him, in the capacity of abbot, an action of debt against his own executors to recover the money due[c]. in short, a monk or religious is so effectually dead in law, that a lease made even to a third person, during the life (generally) of one who afterwards becomes a monk, determines by such his entry into religion: for which reason leases, and other conveyances, for life, are usually made to have and to hold for the term of one's _natural_ life[d]. [footnote z: co. litt. 133.] [footnote a: this was also a rule in the feodal law, _l._ 2. _t._ 21. _desiit esse miles seculi, qui factus est miles christi; nec beneficium pertinet ad eum qui non debet gerere officium_.] [footnote b: litt. â§. 200.] [footnote c: co. litt. 133 _b._] [footnote d: 2 rep. 48. co. litt. 132.] this natural life being, as was before observed, the immediate donation of the great creator, cannot legally be disposed of or destroyed by any individual, neither by the person himself nor by any other of his fellow creatures, merely upon their own authority. yet nevertheless it may, by the divine permission, be frequently forfeited for the breach of those laws of society, which are enforced by the sanction of capital punishments; of the nature, restrictions, expedience, and legality of which, we may hereafter more conveniently enquire in the concluding book of these commentaries. at present, i shall only observe, that whenever the _constitution_ of a state vests in any man, or body of men, a power of destroying at pleasure, without the direction of laws, the lives or members of the subject, such constitution is in the highest degree tyrannical: and that whenever any _laws_ direct such destruction for light and trivial causes, such laws are likewise tyrannical, though in an inferior degree; because here the subject is aware of the danger he is exposed to, and may by prudent caution provide against it. the statute law of england does therefore very seldom, and the common law does never, inflict any punishment extending to life or limb, unless upon the highest necessity: and the constitution is an utter stranger to any arbitrary power of killing or maiming the subject without the express warrant of law. "_nullus liber homo_, says the great charter[e], _aliquo modo destruatur, nisi per legale judicium parium suorum aut per legem terrae._" which words, "_aliquo modo destruatur_," according to sir edward coke[f], include a prohibition not only of _killing_, and _maiming_, but also of _torturing_ (to which our laws are strangers) and of every oppression by colour of an illegal authority. and it is enacted by the statute 5 edw. iii. c. 9. that no man shall be forejudged of life or limb, contrary to the great charter and the law of the land: and again, by statute 28 ed. iii. c. 3. that no man shall be put to death, without being brought to answer by due process of law. [footnote e: c. 29.] [footnote f: 2 inst. 48.] 3. besides those limbs and members that may be necessary to man, in order to defend himself or annoy his enemy, the rest of his person or body is also entitled by the same natural right to security from the corporal insults of menaces, assaults, beating, and wounding; though such insults amount not to destruction of life or member. 4. the preservation of a man's health from such practices as may prejudice or annoy it, and 5. the security of his reputation or good name from the arts of detraction and slander, are rights to which every man is intitled, by reason and natural justice; since without these it is impossible to have the perfect enjoyment of any other advantage or right. but these three last articles (being of much less importance than those which have gone before, and those which are yet to come) it will suffice to have barely mentioned among the rights of persons; referring the more minute discussion of their several branches, to those parts of our commentaries which treat of the infringement of these rights, under the head of personal wrongs. ii. next to personal security, the law of england regards, asserts, and preserves the personal liberty of individuals. this personal liberty consists in the power of loco-motion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct; without imprisonment or restraint, unless by due course of law. concerning which we may make the same observations as upon the preceding article; that it is a right strictly natural; that the laws of england have never abridged it without sufficient cause; and, that in this kingdom it cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission of the laws. here again the language of the great charter[g] is, that no freeman shall be taken or imprisoned, but by the lawful judgment of his equals, or by the law of the land. and many subsequent old statutes[h] expressly direct, that no man shall be taken or imprisoned by suggestion or petition to the king, or his council, unless it be by legal indictment, or the process of the common law. by the petition of right, 3 car. i, it is enacted, that no freeman shall be imprisoned or detained without cause shewn, to which he may make answer according to law. by 16 car. i. c. 10. if any person be restrained of his liberty by order or decree of any illegal court, or by command of the king's majesty in person, or by warrant of the council board, or of any of the privy council; he shall, upon demand of his counsel, have a writ of _habeas corpus_, to bring his body before the court of king's bench or common pleas; who shall determine whether the cause of his commitment be just, and thereupon do as to justice shall appertain. and by 31 car. ii. c. 2. commonly called _the habeas corpus act_, the methods of obtaining this writ are so plainly pointed out and enforced, that, so long as this statute remains unimpeached, no subject of england can be long detained in prison, except in those cases in which the law requires and justifies such detainer. and, lest this act should be evaded by demanding unreasonable bail, or sureties for the prisoner's appearance, it is declared by 1 w. & m. st. 2. c. 2. that excessive bail ought not to be required. [footnote g: c. 29.] [footnote h: 5 edw. iii. c. 9. 25 edw. iii. st. 5. c. 4. and 28 edw. iii. c. 3.] of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper, (as in france it is daily practiced by the crown) there would soon be an end of all other rights and immunities. some have thought, that unjust attacks, even upon life, or property, at the arbitrary will of the magistrate, are less dangerous to the commonwealth, than such as are made upon the personal liberty of the subject. to bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. but confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. and yet sometimes, when the state is in real danger, even this may be a necessary measure. but the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great, as to render this measure expedient. for the parliament only, or legislative power, whenever it sees proper, can authorize the crown, by suspending the _habeas corpus_ act for a short and limited time, to imprison suspected persons without giving any reason for so doing. as the senate of rome was wont to have recourse to a dictator, a magistrate of absolute authority, when they judged the republic in any imminent danger. the decree of the senate, which usually preceded the nomination of this magistrate, "_dent operam consules, nequid respublica detrimenti capiat_," was called the _senatus consultum ultimae necessitatis_. in like manner this experiment ought only to be tried in cases of extreme emergency; and in these the nation parts with it's liberty for a while, in order to preserve it for ever. the confinement of the person, in any wise, is an imprisonment. so that the keeping a man against his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprisonment[i]. and the law so much discourages unlawful confinement, that if a man is under _duress of imprisonment_, which we before explained to mean a compulsion by an illegal restraint of liberty, until he seals a bond or the like; he may alledge this duress, and avoid the extorted bond. but if a man be lawfully imprisoned, and either to procure his discharge, or on any other fair account, seals a bond or a deed, this is not by duress of imprisonment, and he is not at liberty to avoid it[k]. to make imprisonment lawful, it must either be, by process from the courts of judicature, or by warrant from some legal officer, having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into (if necessary) upon a _habeas corpus_. if there be no cause expressed, the goaler is not bound to detain the prisoner[l]. for the law judges in this respect, saith sir edward coke, like festus the roman governor; that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged against him. [footnote i: 2 inst. 589.] [footnote k: 2 inst. 482.] [footnote l: 2 inst. 52, 53.] a natural and regular consequence of this personal liberty, is, that every englishman may claim a right to abide in his own country so long as he pleases; and not to be driven from it unless by the sentence of the law. the king indeed, by his royal prerogative, may issue out his writ _ne exeat regnum_, and prohibit any of his subjects from going into foreign parts without licence[m]. this may be necessary for the public service, and safeguard of the commonwealth. but no power on earth, except the authority of parliament, can send any subject of england _out of_ the land against his will; no not even a criminal. for exile, or transportation, is a punishment unknown to the common law; and, wherever it is now inflicted, it is either by the choice of the criminal himself, to escape a capital punishment, or else by the express direction of some modern act of parliament. to this purpose the great charter[n] declares that no freeman shall be banished, unless by the judgment of his peers, or by the law of the land. and by the _habeas corpus_ act, 31 car. ii. c. 2. (that second _magna carta_, and stable bulwark of our liberties) it is enacted, that no subject of this realm, who is an inhabitant of england, wales, or berwick, shall be sent prisoner into scotland, ireland, jersey, guernsey, or places beyond the seas; (where they cannot have the benefit and protection of the common law) but that all such imprisonments shall be illegal; that the person, who shall dare to commit another contrary to this law, shall be disabled from bearing any office, shall incur the penalty of a praemunire, and be incapable of receiving the king's pardon: and the party suffering shall also have his private action against the person committing, and all his aiders, advisers and abettors, and shall recover treble costs; besides his damages, which no jury shall assess at less than five hundred pounds. [footnote m: f.n.b. 85.] [footnote n: cap. 29.] the law is in this respect so benignly and liberally construed for the benefit of the subject, that, though _within_ the realm the king may command the attendance and service of all his liege-men, yet he cannot send any man _out of_ the realm, even upon the public service: he cannot even constitute a man lord deputy or lieutenant of ireland against his will, nor make him a foreign embassador[o]. for this might in reality be no more than an honorable exile. [footnote o: 2 inst. 47.] iii. the third absolute right, inherent in every englishman, is that of property; which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land. the original of private property is probably founded in nature, as will be more fully explained in the second book of the ensuing commentaries: but certainly the modifications under which we at present find it, the method of conserving it in the present owner, and of translating it from man to man, are entirely derived from society; and are some of those civil advantages, in exchange for which every individual has resigned a part of his natural liberty. the laws of england are therefore, in point of honor and justice, extremely watchful in ascertaining and protecting this right. upon this principle the great charter[p] has declared that no freeman shall be disseised, or divested, of his freehold, or of his liberties, or free customs, but by the judgment of his peers, or by the law of the land. and by a variety of antient statutes[q] it is enacted, that no man's lands or goods shall be seised into the king's hands, against the great charter, and the law of the land; and that no man shall be disinherited, nor put out of his franchises or freehold, unless he be duly brought to answer, and be forejudged by course of law; and if any thing be done to the contrary, it shall be redressed, and holden for none. [footnote p: c. 29.] [footnote q: 5 edw. iii. c. 9. 25 edw. iii. st. 5. c. 4. 28 edw. iii. c. 3.] so great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community. if a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land. in vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. besides, the public good is in nothing more essentially interested, than in the protection of every individual's private rights, as modelled by the municipal law. in this, and similar cases the legislature alone can, and indeed frequently does, interpose, and compel the individual to acquiesce. but how does it interpose and compel? not by absolutely stripping the subject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained. the public is now considered as an individual, treating with an individual for an exchange. all that the legislature does is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legislature can perform. nor is this the only instance in which the law of the land has postponed even public necessity to the sacred and inviolable rights of private property. for no subject of england can be constrained to pay any aids or taxes, even for the defence of the realm or the support of government, but such as are imposed by his own consent, or that of his representatives in parliament. by the statute 25 edw. i. c. 5 and 6. it is provided, that the king shall not take any aids or tasks, but by the common assent of the realm. and what that common assent is, is more fully explained by 34 edw. i. st. 4. cap. 1. which enacts, that no talliage or aid shall be taken without assent of the arch-bishops, bishops, earls, barons, knights, burgesses, and other freemen of the land[r]: and again by 14 edw. iii. st. 2. c. 1. the prelates, earls, barons, and commons, citizens, burgesses, and merchants shall not be charged to make any aid, if it be not by the common assent of the great men and commons in parliament. and as this fundamental law had been shamefully evaded under many succeeding princes, by compulsive loans, and benevolences extorted without a real and voluntary consent, it was made an article in the petition of right 3 car. i, that no man shall be compelled to yield any gift, loan, or benevolence, tax, or such like charge, without common consent by act of parliament. and, lastly, by the statute 1 w. & m. st. 2. c. 2. it is declared, that levying money for or to the use of the crown, by pretence of prerogative, without grant of parliament; or for longer time, or in other manner, than the same is or shall be granted, is illegal. [footnote r: see the historical introduction to the great charter, &c, _sub anno_ 1297; wherein it is shewn that this statute _de talliagio non concedendo_, supposed to have been made in 34 edw. i, is in reality nothing more than a sort of translation into latin of the _confirmatio cartarum_, 25 edw. i, which was originally published in the norman language.] in the three preceding articles we have taken a short view of the principal absolute rights which appertain to every englishman. but in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment. it has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property. these are, 1. the constitution, powers, and privileges of parliament, of which i shall treat at large in the ensuing chapter. 2. the limitation of the king's prerogative, by bounds so certain and notorious, that it is impossible he should exceed them without the consent of the people. of this also i shall treat in it's proper place. the former of these keeps the legislative power in due health and vigour, so as to make it improbable that laws should be enacted destructive of general liberty: the latter is a guard upon the executive power, by restraining it from acting either beyond or in contradiction to the laws, that are framed and established by the other. 3. a third subordinate right of every englishman is that of applying to the courts of justice for redress of injuries. since the law is in england the supreme arbiter of every man's life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administred therein. the emphatical words of _magna carta_[s], spoken in the person of the king, who in judgment of law (says sir edward coke[t]) is ever present and repeating them in all his courts, are these; "_nulli vendemus, nulli negabimus, aut differemus rectum vel justitiam_: and therefore every subject," continues the same learned author, "for injury done to him _in bonis, in terris, vel persona_, by any other subject, be he ecclesiastical or temporal without any exception, may take his remedy by the course of the law, and have justice and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay." it were endless to enumerate all the _affirmative_ acts of parliament wherein justice is directed to be done according to the law of the land: and what that law is, every subject knows; or may know if he pleases: for it depends not upon the arbitrary will of any judge; but is permanent, fixed, and unchangeable, unless by authority of parliament. i shall however just mention a few _negative_ statutes, whereby abuses, perversions, or delays of justice, especially by the prerogative, are restrained. it is ordained by _magna carta_[u], that no freeman shall be outlawed, that is, put out of the protection and benefit of the laws, but according to the law of the land. by 2 edw. iii. c. 8. and 11 ric. ii. c. 10. it is enacted, that no commands or letters shall be sent under the great seal, or the little seal, the signet, or privy seal, in disturbance of the law; or to disturb or delay common right: and, though such commandments should come, the judges shall not cease to do right. and by 1 w. & m. st. 2. c. 2. it is declared, that the pretended power of suspending, or dispensing with laws, or the execution of laws, by regal authority without consent of parliament, is illegal. [footnote s: c. 29.] [footnote t: 2 inst. 55.] [footnote u: c. 29.] not only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered but by parliament: for if once those outworks were demolished, there would be no inlet to all manner of innovation in the body of the law itself. the king, it is true, may erect new courts of justice; but then they must proceed according to the old established forms of the common law. for which reason it is declared in the statute 16 car. i. c. 10. upon the dissolution of the court of starchamber, that neither his majesty, nor his privy council, have any jurisdiction, power, or authority by english bill, petition, articles, libel (which were the course of proceeding in the starchamber, borrowed from the civil law) or by any other arbitrary way whatsoever, to examine, or draw into question, determine or dispose of the lands or goods of any subjects of this kingdom; but that the same ought to be tried and determined in the ordinary courts of justice, and by _course of law_. 4. if there should happen any uncommon injury, or infringement of the rights beforementioned, which the ordinary course of law is too defective to reach, there still remains a fourth subordinate right appertaining to every individual, namely, the right of petitioning the king, or either house of parliament, for the redress of grievances. in russia we are told[w] that the czar peter established a law, that no subject might petition the throne, till he had first petitioned two different ministers of state. in case he obtained justice from neither, he might then present a third petition to the prince; but upon pain of death, if found to be in the wrong. the consequence of which was, that no one dared to offer such third petition; and grievances seldom falling under the notice of the sovereign, he had little opportunity to redress them. the restrictions, for some there are, which are laid upon petitioning in england, are of a nature extremely different; and while they promote the spirit of peace, they are no check upon that of liberty. care only must be taken, lest, under the pretence of petitioning, the subject be guilty of any riot or tumult; as happened in the opening of the memorable parliament in 1640: and, to prevent this, it is provided by the statute 13 car. ii. st. 1. c. 5. that no petition to the king, or either house of parliament, for any alterations in church or state, shall be signed by above twenty persons, unless the matter thereof be approved by three justices of the peace or the major part of the grand jury, in the country; and in london by the lord mayor, aldermen, and common council; nor shall any petition be presented by more than two persons at a time. but under these regulations, it is declared by the statute 1 w. & m. st. 2. c. 2. that the subject hath a right to petition; and that all commitments and prosecutions for such petitioning are illegal. [footnote w: montesq. sp. l. 12. 26.] 5. the fifth and last auxiliary right of the subject, that i shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. which is also declared by the same statute 1 w. & m. st. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. in these several articles consist the rights, or, as they are frequently termed, the liberties of englishmen: liberties more generally talked of, than thoroughly understood; and yet highly necessary to be perfectly known and considered by every man of rank or property, lest his ignorance of the points whereon it is founded should hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other. and we have seen that these rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. so long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object upon which it can possibly be employed. to preserve these from violation, it is necessary that the constitution of parliaments be supported in it's full vigor; and limits certainly known, be set to the royal prerogative. and, lastly, to vindicate these rights, when actually violated or attacked, the subjects of england are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next to the right of petitioning the king and parliament for redress of grievances; and lastly to the right of having and using arms for self-preservation and defence. and all these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints. restraints in themselves so gentle and moderate, as will appear upon farther enquiry, that no man of sense or probity would wish to see them slackened. for all of us have it in our choice to do every thing that a good man would desire to do; and are restrained from nothing, but what would be pernicious either to ourselves or our fellow citizens. so that this review of our situation may fully justify the observation of a learned french author, who indeed generally both thought and wrote in the spirit of genuine freedom[x]; and who hath not scrupled to profess, even in the very bosom of his native country, that the english is the only nation in the world, where political or civil liberty is the direct end of it's constitution. recommending therefore to the student in our laws a farther and more accurate search into this extensive and important title, i shall close my remarks upon it with the expiring wish of the famous father paul to his country, "esto perpetua!" [footnote x: montesq. sp. l. 11. 5.] chapter the second. of the parliament. we are next to treat of the rights and duties of persons, as they are members of society, and stand in various relations to each other. these relations are either public or private: and we will first consider those that are public. the most universal public relation, by which men are connected together, is that of government; namely, as governors and governed, or, in other words, as magistrates and people. of magistrates also some are _supreme_, in whom the sovereign power of the state resides; others are _subordinate_, deriving all their authority from the supreme magistrate, accountable to him for their conduct, and acting in an inferior secondary sphere. in all tyrannical governments the supreme magistracy, or the right both of _making_ and of _enforcing_ the laws, is vested in one and the same man, or one and the same body of men; and wherever these two powers are united together, there can be no public liberty. the magistrate may enact tyrannical laws, and execute them in a tyrannical manner, since he is possessed, in quality of dispenser of justice, with all the power which he as legislator thinks proper to give himself. but, where the legislative and executive authority are in distinct hands, the former will take care not to entrust the latter with so large a power, as may tend to the subversion of it's own independence, and therewith of the liberty of the subject. with us therefore in england this supreme power is divided into two branches; the one legislative, to wit, the parliament, consisting of king, lords, and commons; the other executive, consisting of the king alone. it will be the business of this chapter to consider the british parliament; in which the legislative power, and (of course) the supreme and absolute authority of the state, is vested by our constitution. the original or first institution of parliaments is one of those matters that lie so far hidden in the dark ages of antiquity, that the tracing of it out is a thing equally difficult and uncertain. the word, _parliament_, itself (or _colloquium_, as some of our historians translate it) is comparatively of modern date, derived from the french, and signifying the place where they met and conferred together. it was first applied to general assemblies of the states under louis vii in france, about the middle of the twelfth century[a]. but it is certain that, long before the introduction of the norman language into england, all matters of importance were debated and settled in the great councils of the realm. a practice, which seems to have been universal among the northern nations, particularly the germans[b]; and carried by them into all the countries of europe, which they overran at the dissolution of the roman empire. relics of which constitution, under various modifications and changes, are still to be met with in the diets of poland, germany, and sweden, and the assembly of the estates in france; for what is there now called the parliament is only the supreme court of justice, composed of judges and advocates; which neither is in practice, nor is supposed to be in theory, a general council of the realm. [footnote a: mod. un. hist. xxiii. 307.] [footnote b: _de minoribus rebus principes consultant, de majoribus omnes._ tac. _de mor. germ._ _c._ 11.] with us in england this general council hath been held immemorially, under the several names of _michel-synoth_, or great council, _michel-gemote_ or great meeting, and more frequently _wittena-gemote_ or the meeting of wise men. it was also stiled in latin, _commune concilium regni_, _magnum concilium regis_, _curia magna_, _conventus magnatum vel procerum_, _assisa generalis_, and sometimes _communitas regni angliae_[c]. we have instances of it's meeting to order the affairs of the kingdom, to make new laws, and to amend the old, or, as fleta[d] expresses it, "_novis injuriis emersis nova constituere remedia_," so early as the reign of ina king of the west saxons, offa king of the mercians, and ethelbert king of kent, in the several realms of the heptarchy. and, after their union, the mirrour[e] informs us, that king alfred ordained for a perpetual usage, that these councils should meet twice in the year, or oftener, if need be, to treat of the government of god's people; how they should keep themselves from sin, should live in quiet, and should receive right. our succeeding saxon and danish monarchs held frequent councils of this sort, as appears from their respective codes of laws; the titles whereof usually speak them to be enacted, either by the king with the advice of his wittena-gemote, or wise men, as, "_haec sunt instituta, quae edgarus rex consilio sapientum suorum instituit_;" or to be enacted by those sages with the advice of the king, as, "_haec sunt judicia, quae sapientes consilio regis ethelstani instituerunt_;" or lastly, to be enacted by them both together, as; "_hae sunt institutiones, quas rex edmundus et episcopi sui cum sapientibus suis instituerunt_." [footnote c: glanvil. _l._ 13 _c._ 32. _l._ 9. _c._ 10.--pref. 9 rep.--2 inst. 526.] [footnote d: _l._ 2. _c._ 2.] [footnote e: c. 1. â§. 3.] there is also no doubt but these great councils were held regularly under the first princes of the norman line. glanvil, who wrote in the reign of henry the second, speaking of the particular amount of an amercement in the sheriff's court, says, it had never yet been ascertained by the general assise, or assembly, but was left to the custom of particular counties[f]. here the general assise is spoken of as a meeting well known, and it's statutes or decisions are put in a manifest contradistinction to customs, or the common law. and in edward the third's time an act of parliament, made in the reign of william the conqueror, was pleaded in the case of the abbey of st edmund's-bury, and judicially allowed by the court[g]. [footnote f: _quanta esse debeat per nullam assisam generalem determinatum est, sed pro consuetudine singulorum comitatuum debetur._ _l._ 9. _c._ 10.] [footnote g: year book, 21 edw. iii. 60.] hence it indisputably appears, that parliaments, or general councils, are coeval with the kingdom itself. how those parliaments were constituted and composed, is another question, which has been matter of great dispute among our learned antiquarians; and, particularly, whether the commons were summoned at all; or, if summoned, at what period they began to form a distinct assembly. but it is not my intention here to enter into controversies of this sort. i hold it sufficient that it is generally agreed, that in the main the constitution of parliament, as it now stands, was marked out so long ago as the seventeenth year of king john, _a.d._ 1215, in the great charter granted by that prince; wherein he promises to summon all arch-bishops, bishops, abbots, earls, and greater barons, personally; and all other tenants in chief under the crown, by the sheriff and bailiffs; to meet at a certain place, with forty days notice, to assess aids and scutages when necessary. and this constitution has subsisted in fact at least from the year 1266, 49 hen. iii: there being still extant writs of that date, to summon knights, citizens, and burgesses to parliament. i proceed therefore to enquire wherein consists this constitution of parliament, as it now stands, and has stood for the space of five hundred years. and in the prosecution of this enquiry, i shall consider, first, the manner and time of it's assembling: secondly, it's constituent parts: thirdly, the laws and customs relating to parliament, considered as one aggregate body: fourthly and fifthly, the laws and customs relating to each house, separately and distinctly taken: sixthly, the methods of proceeding, and of making statutes, in both houses: and lastly, the manner of the parliament's adjournment, prorogation, and dissolution. i. as to the manner and time of assembling. the parliament is regularly to be summoned by the king's writ or letter, issued out of chancery by advice of the privy council, at least forty days before it begins to sit. it is a branch of the royal prerogative, that no parliament can be convened by it's own authority, or by the authority of any, except the king alone. and this prerogative is founded upon very good reason. for, supposing it had a right to meet spontaneously, without being called together, it is impossible to conceive that all the members, and each of the houses, would agree unanimously upon the proper time and place of meeting: and if half of the members met, and half absented themselves, who shall determine which is really the legislative body, the part assembled, or that which stays away? it is therefore necessary that the parliament should be called together at a determinate time and place; and highly becoming it's dignity and independence, that it should be called together by none but one of it's own constituent parts; and, of the three constituent parts, this office can only appertain to the king; as he is a single person, whose will may be uniform and steady; the first person in the nation, being superior to both houses in dignity; and the only branch of the legislature that has a separate existence, and is capable of performing any act at a time when no parliament is in being[h]. nor is it an exception to this rule that, by some modern statutes, on the demise of a king or queen, if there be then no parliament in being, the last parliament revives, and is to sit again for six months, unless dissolved by the successor: for this revived parliament must have been originally summoned by the crown. [footnote h: by motives somewhat similar to these the republic of venice was actuated, when towards the end of the seventh century it abolished the tribunes of the people, who were annually chosen by the several districts of the venetian territory, and constituted a doge in their stead; in whom the executive power of the state at present resides. for which their historians have assigned these, as the principal reasons. 1. the propriety of having the executive power a part of the legislative, or senate; to which the former annual magistrates were not admitted. 2. the necessity of having a single person to convoke the great council when separated. mod. un. hist. xxvii. 15.] it is true, that by a statute, 16 car. i. c. 1. it was enacted, that if the king neglected to call a parliament for three years, the peers might assemble and issue out writs for the choosing one; and, in case of neglect of the peers, the constituents might meet and elect one themselves. but this, if ever put in practice, would have been liable to all the inconveniences i have just now stated; and the act itself was esteemed so highly detrimental and injurious to the royal prerogative, that it was repealed by statute 16 car. ii. c. 1. from thence therefore no precedent can be drawn. it is also true, that the convention-parliament, which restored king charles the second, met above a month before his return; the lords by their own authority, and the commons in pursuance of writs issued in the name of the keepers of the liberty of england by authority of parliament: and that the said parliament sat till the twenty ninth of december, full seven months after the restoration; and enacted many laws, several of which are still in force. but this was for the necessity of the thing, which supersedes all law; for if they had not so met, it was morally impossible that the kingdom should have been settled in peace. and the first thing done after the king's return, was to pass an act declaring this to be a good parliament, notwithstanding the defect of the king's writs[i]. so that, as the royal prerogative was chiefly wounded by their so meeting, and as the king himself, who alone had a right to object, consented to wave the objection, this cannot be drawn into an example in prejudice of the rights of the crown. besides we should also remember, that it was at that time a great doubt among the lawyers[k], whether even this healing act made it a good parliament; and held by very many in the negative: though it seems to have been too nice a scruple. [footnote i: stat. 12 car. ii. c. 1.] [footnote k: 1 sid. 1.] it is likewise true, that at the time of the revolution, _a.d._ 1688, the lords and commons by their own authority, and upon the summons of the prince of orange, (afterwards king william) met in a convention and therein disposed of the crown and kingdom. but it must be remembered, that this assembling was upon a like principle of necessity as at the restoration; that is, upon an apprehension that king james the second had abdicated the government, and that the throne was thereby vacant: which apprehension of theirs was confirmed by their concurrent resolution, when they actually came together. and in such a case as the palpable vacancy of a throne, it follows _ex necessitate rei_, that the form of the royal writs must be laid aside, otherwise no parliament can ever meet again. for, let us put another possible case, and suppose, for the sake of argument, that the whole royal line should at any time fail, and become extinct, which would indisputably vacate the throne: in this situation it seems reasonable to presume, that the body of the nation, consisting of lords and commons, would have a right to meet and settle the government; otherwise there must be no government at all. and upon this and no other principle did the convention in 1688 assemble. the vacancy of the throne was precedent to their meeting without any royal summons, not a consequence of it. they did not assemble without writ, and then make the throne vacant; but the throne being previously vacant by the king's abdication, they assembled without writ, as they must do if they assembled at all. had the throne been full, their meeting would not have been regular; but, as it was really empty, such meeting became absolutely necessary. and accordingly it is declared by statute 1 w. & m. st. 1. c. 1. that this convention was really the two houses of parliament, notwithstanding the want of writs or other defects of form. so that, notwithstanding these two capital exceptions, which were justifiable only on a principle of necessity, (and each of which, by the way, induced a revolution in the government) the rule laid down is in general certain, that the king, only, can convoke a parliament. and this by the antient statutes of the realm[l], he is bound to do every year, or oftener, if need be. not that he is, or ever was, obliged by these statutes to call a _new_ parliament every year; but only to permit a parliament to sit annually for the redress of grievances, and dispatch of business, _if need be_. these last words are so loose and vague, that such of our monarchs as were enclined to govern without parliaments, neglected the convoking them, sometimes for a very considerable period, under pretence that there was no need of them. but, to remedy this, by the statute 16 car. ii. c. 1. it is enacted, that the sitting and holding of parliaments shall not be intermitted above three years at the most. and by the statute 1 w. & m. st. 2. c. 2. it is declared to be one of the rights of the people, that for redress of all grievances, and for the amending, strengthening, and preserving the laws, parliaments ought to be held _frequently_. and this indefinite _frequency_ is again reduced to a certainty by statute 6 w. & m. c. 2. which enacts, as the statute of charles the second had done before, that a new parliament shall be called within three years[m] after the determination of the former. [footnote l: 4 edw. iii. c. 14. and 36 edw. iii. c. 10.] [footnote m: this is the same period, that is allowed in sweden for intermitting their general diets, or parliamentary assemblies. mod. un. hist. xxxiii. 15.] ii. the constituent parts of a parliament are the next objects of our enquiry. and these are, the king's majesty, sitting there in his royal political capacity, and the three estates of the realm; the lords spiritual, the lords temporal, (who sit, together with, the king, in one house) and the commons, who sit by themselves in another[n]. and the king and these three estates, together, form the great corporation or body politic of the kingdom, of which the king is said to be _caput, principium, et finis_. for upon their coming together the king meets them, either in person or by representation; without which there can be no beginning of a parliament[o]; and he also has alone the power of dissolving them. [footnote n: 4 inst. 1.] [footnote o: 4 inst. 6.] it is highly necessary for preserving the ballance of the constitution, that the executive power should be a branch, though not the whole, of the legislature. the total union of them, we have seen, would be productive of tyranny; the total disjunction of them for the present, would in the end produce the same effects, by causing that union, against which it seems to provide. the legislature would soon become tyrannical, by making continual encroachments, and gradually assuming to itself the rights of the executive power. thus the long parliament of charles the first, while it acted in a constitutional manner, with the royal concurrence, redressed many heavy grievances and established many salutary laws. but when the two houses assumed the power of legislation, in exclusion of the royal authority, they soon after assumed likewise the reins of administration; and, in consequence of these united powers, overturned both church and state, and established a worse oppression than any they pretended to remedy. to hinder therefore any such encroachments, the king is himself a part of the parliament: and, as this is the reason of his being so, very properly therefore the share of legislation, which the constitution has placed in the crown, consists in the power of _rejecting_, rathar [transcriber's note: rather] than _resolving_; this being sufficient to answer the end proposed. for we may apply to the royal negative, in this instance, what cicero observes of the negative of the roman tribunes, that the crown has not any power of _doing_ wrong, but merely of _preventing_ wrong from being done[p]. the crown cannot begin of itself any alterations in the present established law; but it may approve or disapprove of the alterations suggested and consented to by the two houses. the legislative therefore cannot abridge the executive power of any rights which it now has by law, without it's own consent; since the law must perpetually stand as it now does, unless all the powers will agree to alter it. and herein indeed consists the true excellence of the english government, that all the parts of it form a mutual check upon each other. in the legislature, the people are a check upon the nobility, and the nobility a check upon the people; by the mutual privilege of rejecting what the other has resolved: while the king is a check upon both, which preserves the executive power from encroachments. and this very executive power is again checked, and kept within due bounds by the two houses, through the privilege they have of enquiring into, impeaching, and punishing the conduct (not indeed of the king, which would destroy his constitutional independence; but, which is more beneficial to the public) of his evil and pernicious counsellors. thus every branch of our civil polity supports and is supported, regulates and is regulated, by the rest; for the two houses naturally drawing in two directions of opposite interest, and the prerogative in another still different from them both, they mutually keep each other from exceeding their proper limits; while the whole is prevented from separation, and artificially connected together by the mixed nature of the crown, which is a part of the legislative, and the sole executive magistrate. like three distinct powers in mechanics, they jointly impel the machine of government in a direction different from what either, acting by themselves, would have done; but at the same time in a direction partaking of each, and formed out of all; a direction which constitutes the true line of the liberty and happiness of the community. [footnote p: _sulla--tribunis plebis sua lege injuriae faciendae potestatem ademit, auxilii ferendi reliquit._ _de ll._ 3. 9.] let us now consider these constituent parts of the sovereign power, or parliament, each in a separate view. the king's majesty will be the subject of the next, and many subsequent chapters, to which we must at present refer. the next in order are the spiritual lords. these consist of two arch-bishops, and twenty four bishops; and, at the dissolution of monasteries by henry viii, consisted likewise of twenty six mitred abbots, and two priors[q]: a very considerable body, and in those times equal in number to the temporal nobility[r]. all these hold, or are supposed to hold, certain antient baronies under the king: for william the conqueror thought proper to change the spiritual tenure, of frankalmoign or free alms, under which the bishops held their lands during the saxon government, into the feodal or norman tenure by barony; which subjected their estates to all civil charges and assessments, from which they were before exempt[s]: and, in right of succession to those baronies, the bishops obtained their seat in the house of lords[t]. but though these lords spiritual are in the eye of the law a distinct estate from the lords temporal, and are so distinguished in all our acts of parliament, yet in practice they are usually blended together under the one name of _the lords_; they intermix in their votes; and the majority of such intermixture binds both estates. for if a bill should pass their house, there is no doubt of it's being effectual, though every lord spiritual should vote against it; of which selden[u], and sir edward coke[w], give many instances: as, on the other hand, i presume it would be equally good, if the lords temporal present were inferior to the bishops in number, and every one of those temporal lords gave his vote to reject the bill; though this sir edward coke seems to doubt of[x]. [footnote q: seld. tit. hon. 2. 5. 27.] [footnote r: co. litt. 97.] [footnote s: gilb. hist. exch. 55. spelm. w.i. 291.] [footnote t: glanv. 7. 1. co. litt. 97. seld. tit. hon. 2. 5. 19.] [footnote u: baronage. p. 1. c. 6.] [footnote w: 2 inst. 585, 6, 7.] [footnote x: 4 inst. 25.] the lords temporal consist of all the peers of the realm (the bishops not being in strictness held to be such, but merely lords of parliament[y]) by whatever title of nobility distinguished; dukes, marquisses, earls, viscounts, or barons; of which dignities we shall speak more hereafter. some of these sit by descent, as do all antient peers; some by creation, as do all new-made ones; others, since the union with scotland, by election, which is the case of the sixteen peers, who represent the body of the scots nobility. their number is indefinite, and may be encreased at will by the power of the crown: and once, in the reign of queen anne, there was an instance of creating no less than twelve together; in contemplation of which, in the reign of king george the first, a bill passed the house of lords, and was countenanced by the then ministry, for limiting the number of the peerage. this was thought by some to promise a great acquisition to the constitution, by restraining the prerogative from gaining the ascendant in that august assembly, by pouring in at pleasure an unlimited number of new created lords. but the bill was ill-relished and miscarried in the house of commons, whose leading members were then desirous to keep the avenues to the other house as open and easy as possible. [footnote y: staunford. p.c. 153.] the distinction of rank and honours is necessary in every well-governed state; in order to reward such as are eminent for their services to the public, in a manner the most desirable to individuals, and yet without burthen to the community; exciting thereby an ambitious yet laudable ardor, and generous emulation in others. and emulation, or virtuous ambition, is a spring of action which, however dangerous or invidious in a mere republic or under a despotic sway, will certainly be attended with good effects under a free monarchy; where, without destroying it's existence, it's excesses may be continually restrained by that superior power, from which all honour is derived. such a spirit, when nationally diffused, gives life and vigour to the community; it sets all the wheels of government in motion, which under a wise regulator, may be directed to any beneficial purpose; and thereby every individual may be made subservient to the public good, while he principally means to promote his own particular views. a body of nobility is also more peculiarly necessary in our mixed and compounded constitution, in order to support the rights of both the crown and the people, by forming a barrier to withstand the encroachments of both. it creates and preserves that gradual scale of dignity, which proceeds from the peasant to the prince; rising like a pyramid from a broad foundation, and diminishing to a point as it rises. it is this ascending and contracting proportion that adds stability to any government; for when the departure is sudden from one extreme to another, we may pronounce that state to be precarious. the nobility therefore are the pillars, which are reared from among the people, more immediately to support the throne; and if that falls, they must also be buried under it's ruins. accordingly, when in the last century the commons had determined to extirpate monarchy, they also voted the house of lords to be useless and dangerous. and since titles of nobility are thus expedient in the state, it is also expedient that their owners should form an independent and separate branch of the legislature. if they were confounded with the mass of the people, and like them had only a vote in electing representatives, their privileges would soon be borne down and overwhelmed by the popular torrent, which would effectually level all distinctions. it is therefore highly necessary that the body of nobles should have a distinct assembly, distinct deliberations, and distinct powers from the commons. the commons consist of all such men of any property in the kingdom as have not seats in the house of lords; every one of which has a voice in parliament, either personally, or by his representatives. in a free state, every man, who is supposed a free agent, ought to be, in some measure, his own governor; and therefore a branch at least of the legislative power should reside in the whole body of the people. and this power, when the territories of the state are small and it's citizens easily known, should be exercised by the people in their aggregate or collective capacity, as was wisely ordained in the petty republics of greece, and the first rudiments of the roman state. but this will be highly inconvenient, when the public territory is extended to any considerable degree, and the number of citizens is encreased. thus when, after the social war, all the burghers of italy were admitted free citizens of rome, and each had a vote in the public assemblies, it became impossible to distinguish the spurious from the real voter, and from that time all elections and popular deliberations grew tumultuous and disorderly; which paved the way for marius and sylla, pompey and caesar, to trample on the liberties of their country, and at last to dissolve the commonwealth. in so large a state as ours it is therefore very wisely contrived, that the people should do that by their representatives, which it is impracticable to perform in person: representatives, chosen by a number of minute and separate districts, wherein all the voters are, or easily may be, distinguished. the counties are therefore represented by knights, elected by the proprietors of lands; the cities and boroughs are represented by citizens and burgesses, chosen by the mercantile part or supposed trading interest of the nation; much in the same manner as the burghers in the diet of sweden are chosen by the corporate towns, stockholm sending four, as london does with us, other cities two, and some only one[z]. the number of english representatives is 513, and of scots 45; in all 558. and every member, though chosen by one particular district, when elected and returned serves for the whole realm. for the end of his coming thither is not particular, but general; not barely to advantage his constituents, but the _common_ wealth; to advise his majesty (as appears from the writ of summons[a]) "_de communi consilio super negotiis quibusdam arduis et urgentibus, regem, statum et defensionem regni angliae et ecclesiae anglicanae concernentibus_." and therefore he is not bound, like a deputy in the united provinces, to consult with, or take the advice, of his constituents upon any particular point, unless he himself thinks it proper or prudent so to do. [footnote z: mod. un. hist. xxxiii. 18.] [footnote a: 4 inst. 14.] these are the constituent parts of a parliament, the king, the lords spiritual and temporal, and the commons. parts, of which each is so necessary, that the consent of all three is required to make any new law that shall bind the subject. whatever is enacted for law by one, or by two only, of the three is no statute; and to it no regard is due, unless in matters relating to their own privileges. for though, in the times of madness and anarchy, the commons once passed a vote[b], "that whatever is enacted or declared for law by the commons in parliament assembled hath the force of law; and all the people of this nation are concluded thereby, although the consent and concurrence of the king or house of peers be not had thereto;" yet, when the constitution was restored in all it's forms, it was particularly enacted by statute 13 car. ii. c. 1. that if any person shall maliciously or advisedly affirm, that both or either of the houses of parliament have any legislative authority without the king, such person shall incur all the penalties of a praemunire. [footnote b: 4 jan. 1648.] iii. we are next to examine the laws and customs relating to parliament, thus united together and considered as one aggregate body. the power and jurisdiction of parliament, says sir edward coke[c], is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds. and of this high court he adds, it may be truly said "_si antiquitatem spectes, est vetustissima; si dignitatem, est honoratissima; si juridictionem, est capacissima_." it hath sovereign and uncontrolable authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal: this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms. all mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. it can regulate or new model the succession to the crown; as was done in the reign of henry viii and william iii. it can alter the established religion of the land; as was done in a variety of instances, in the reigns of king henry viii and his three children. it can change and create afresh even the constitution of the kingdom and of parliaments themselves; as was done by the act of union, and the several statutes for triennial and septennial elections. it can, in short, do every thing that is not naturally impossible; and therefore some have not scrupled to call it's power, by a figure rather too bold, the omnipotence of parliament. true it is, that what they do, no authority upon earth can undo. so that it is a matter most essential to the liberties of this kingdom, that such members be delegated to this important trust, as are most eminent for their probity, their fortitude, and their knowlege; for it was a known apothegm of the great lord treasurer burleigh, "that england could never be ruined but by a parliament:" and, as sir matthew hale observes[d], this being the highest and greatest court, over which none other can have jurisdiction in the kingdom, if by any means a misgovernment should any way fall upon it, the subjects of this kingdom are left without all manner of remedy. to the same purpose the president montesquieu, though i trust too hastily, presages[e]; that as rome, sparta, and carthage have lost their liberty and perished, so the constitution of england will in time lose it's liberty, will perish: it will perish, whenever the legislative power shall become more corrupt than the executive. [footnote c: 4 inst. 36.] [footnote d: of parliaments, 49.] [footnote e: sp. l. 11. 6.] it must be owned that mr locke[f], and other theoretical writers, have held, that "there remains still inherent in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them: for when such trust is abused, it is thereby forfeited, and devolves to those who gave it." but however just this conclusion may be in theory, we cannot adopt it, nor argue from it, under any dispensation of government at present actually existing. for this devolution of power, to the people at large, includes in it a dissolution of the whole form of government established by that people, reduces all the members to their original state of equality, and by annihilating the sovereign power repeals all positive laws whatsoever before enacted. no human laws will therefore suppose a case, which at once must destroy all law, and compel men to build afresh upon a new foundation; nor will they make provision for so desperate an event, as must render all legal provisions ineffectual. so long therefore as the english constitution lasts, we may venture to affirm, that the power of parliament is absolute and without control. [footnote f: on gov. p. 2. â§. 149, 227.] in order to prevent the mischiefs that might arise, by placing this extensive authority in hands that are either incapable, or else improper, to manage it, it is provided that no one shall sit or vote in either house of parliament, unless he be twenty one years of age. this is expressly declared by statute 7 & 8 w. iii. c. 25. with regard to the house of commons; though a minor was incapacitated before from sitting in either house, by the law and custom of parliament[g]. to prevent crude innovations in religion and government, it is enacted by statute 30 car. ii. st. 2. and 1 geo. i. c. 13. that no member shall vote or sit in either house, till he hath in the presence of the house taken the oaths of allegiance, supremacy, and abjuration, and subscribed and repeated the declaration against transubstantiation, and invocation of saints, and the sacrifice of the mass. to prevent dangers that may arise to the kingdom from foreign attachments, connexions, or dependencies, it is enacted by the 12 & 13 w. iii. c. 2. that no alien, born out of the dominions of the crown of great britain, even though he be naturalized, shall be capable of being a member of either house of parliament. [footnote g: 4 inst. 47.] farther: as every court of justice hath laws and customs for it's direction, some the civil and canon, some the common law, others their own peculiar laws and customs, so the high court of parliament hath also it's own peculiar law, called the _lex et consuetudo parliamenti_; a law which sir edward coke[h] observes, is "_ab omnibus quaerenda, a multis ignorata, a paucis cognita_." it will not therefore be expected that we should enter into the examination of this law, with any degree of minuteness; since, as the same learned author assures us[i], it is much better to be learned out of the rolls of parliament, and other records, and by precedents, and continual experience, than can be expressed by any one man. it will be sufficient to observe, that the whole of the law and custom of parliament has it's original from this one maxim; "that whatever matter arises concerning either house of parliament, ought to be examined, discussed, and adjudged in that house to which it relates, and not elsewhere." hence, for instance, the lords will not suffer the commons to interfere in settling a claim of peerage; the commons will not allow the lords to judge of the election of a burgess; nor will either house permit the courts of law to examine the merits of either case. but the maxims upon which they proceed, together with their method of proceeding, rest entirely in the breast of the parliament itself; and are not defined and ascertained by any particular stated laws. [footnote h: 1 inst. 11.] [footnote i: 4 inst. 50.] the _privileges_ of parliament are likewise very large and indefinite; which has occasioned an observation, that the principal privilege of parliament consisted in this, that it's privileges were not certainly known to any but the parliament itself. and therefore when in 31 hen. vi the house of lords propounded a question to the judges touching the privilege of parliament, the chief justice, in the name of his brethren, declared, "that they ought not to make answer to that question; for it hath not been used aforetime that the justices should in any wise determine the privileges of the high court of parliament; for it is so high and mighty in his nature, that it may make law; and that which is law, it may make no law; and the determination and knowlege of that privilege belongs to the lords of parliament, and not to the justices[k]." [transcriber's note: missing end quotation mark added] privilege of parliament was principally established, in order to protect it's members not only from being molested by their fellow-subjects, but also more especially from being oppressed by the power of the crown. if therefore all the privileges of parliament were once to be set down and ascertained, and no privilege to be allowed but what was so defined and determined, it were easy for the executive power to devise some new case, not within the line of privilege, and under pretence thereof to harass any refractory member and violate the freedom of parliament. the dignity and independence of the two houses are therefore in great measure preserved by keeping their privileges indefinite. some however of the more notorious privileges of the members of either house are, privilege of speech, of person, of their domestics, and of their lands and goods. as to the first, privilege of speech, it is declared by the statute 1 w. & m. st. 2. c. 2. as one of the liberties of the people, "that the freedom of speech, and debates, and proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament." and this freedom of speech is particularly demanded of the king in person, by the speaker of the house of commons, at the opening of every new parliament. so likewise are the other privileges, of person, servants, lands and goods; which are immunities as antient as edward the confessor, in whose laws[l] we find this precept. "_ad synodos venientibus, sive summoniti sint, sive per se quid agendum habuerint, sit summa pax_:" and so too, in the old gothic constitutions, "_extenditur haec pax et securitas ad quatuordecim dies, convocato regni senatu_[m]." this includes not only privilege from illegal violence, but also from legal arrests, and seisures by process from the courts of law. to assault by violence a member of either house, or his menial servants, is a high contempt of parliament, and there punished with the utmost severity. it has likewise peculiar penalties annexed to it in the courts of law, by the statutes 5 hen. iv. c. 6. and 11 hen. vi. c. 11. neither can any member of either house be arrested and taken into custody, nor served with any process of the courts of law; nor can his menial servants be arrested; nor can any entry be made on his lands; nor can his goods be distrained or seised; without a breach of the privilege of parliament. these privileges however, which derogate from the common law, being only indulged to prevent the member's being diverted from the public business, endure no longer than the session of parliament, save only as to the freedom of his person: which in a peer is for ever sacred and inviolable; and in a commoner for forty days after every prorogation, and forty days before the next appointed meeting[n]; which is now in effect as long as the parliament subsists, it seldom being prorogued for more than fourscore days at a time. but this privilege of person does not hold in crimes of such public malignity as treason, felony, or breach of the peace[o]; or rather perhaps in such crimes for which surety of the peace may be required. as to all other privileges which obstruct the ordinary course of justice, they cease by the statutes 12 w. iii. c. 3. and 11 geo. ii. c. 24. immediately after the dissolution or prorogation of the parliament, or adjournment of the houses for above a fortnight; and during these recesses a peer, or member of the house of commons, may be sued like an ordinary subject, and in consequence of such suits may be dispossessed of his lands and goods. in these cases the king has also his prerogative: he may sue for his debts, though not arrest the person of a member, during the sitting of parliament; and by statute 2 & 3 ann. c. 18. a member may be sued during the sitting of parliament for any misdemesnor or breach of trust in a public office. likewise, for the benefit of commerce, it is provided by statute 4 geo. iii. c. 33, that any trader, having privilege of parliament, may be served with legal process for any just debt, (to the amount of 100_l._) and unless he makes satisfaction within two months, it shall be deemed an act of bankruptcy; and that commissions of bankrupt may be issued against such privileged traders, in like manner as against any other. [footnote k: seld. baronage. part. 1. c. 4.] [footnote l: _cap._ 3.] [footnote m: stiernh. _de jure goth._ _l._ 3. _c._ 3.] [footnote n: 2 lev. 72.] [footnote o: 4 inst. 25.] these are the general heads of the laws and customs relating to parliament, considered as one aggregate body. we will next proceed to iv. the laws and customs relating to the house of lords in particular. these, if we exclude their judicial capacity, which will be more properly treated of in the third and fourth books of these commentaries, will take up but little of our time. one very antient privilege is that declared by the charter of the forest[p], confirmed in parliament 9 hen. iii; viz. that every lord spiritual or temporal summoned to parliament, and passing through the king's forests, may, both in going and returning, kill one or two of the king's deer without warrant; in view of the forester, if he be present; or on blowing a horn if he be absent, that he may not seem to take the king's venison by stealth. [footnote p: cap. 11.] in the next place they have a right to be attended, and constantly are, by the judges of the court of king's bench and commonpleas, and such of the barons of the exchequer as are of the degree of the coif, or have been made serjeants at law; as likewise by the masters of the court of chancery; for their advice in point of law, and for the greater dignity of their proceedings. the secretaries of state, the attorney and solicitor general, and the rest of the king's learned counsel being serjeants, were also used to attend the house of peers, and have to this day their regular writs of summons issued out at the beginning of every parliament[q]: but, as many of them have of late years been members of the house of commons, their attendance is fallen into disuse. [footnote q: stat. 31 hen. viii. c. 10. smith's commonw. b. 2. c. 3. moor. 551. 4 inst. 4. hale of parl. 140.] another privilege is, that every peer, by licence obtained from the king, may make another lord of parliament his proxy, to vote for him in his absence[r]. a privilege which a member of the other house can by no means have, as he is himself but a proxy for a multitude of other people[s]. [footnote r: seld. baronage. p. 1. c. 1.] [footnote s: 4 inst. 12.] each peer has also a right, by leave of the house, when a vote passes contrary to his sentiments, to enter his dissent on the journals of the house, with the reasons for such dissent; which is usually stiled his protest. all bills likewise, that may in their consequences any way affect the rights of the peerage, are by the custom of parliament to have their first rise and beginning in the house of peers, and to suffer no changes or amendments in the house of commons. there is also one statute peculiarly relative to the house of lords; 6 ann. c. 23. which regulates the election of the sixteen representative peers of north britain, in consequence of the twenty second and twenty third articles of the union: and for that purpose prescribes the oaths, &c, to be taken by the electors; directs the mode of balloting; prohibits the peers electing from being attended in an unusual manner; and expressly provides, that no other matter shall be treated of in that assembly, save only the election, on pain of incurring a praemunire. v. the peculiar laws and customs of the house of commons relate principally to the raising of taxes, and the elections of members to serve in parliament. first, with regard to taxes: it is the antient indisputable privilege and right of the house of commons, that all grants of subsidies or parliamentary aids do begin in their house, and are first bestowed by them[t]; although their grants are not effectual to all intents and purposes, until they have the assent of the other two branches of the legislature. the general reason, given for this exclusive privilege of the house of commons, is, that the supplies are raised upon the body of the people, and therefore it is proper that they alone should have the right of taxing themselves. this reason would be unanswerable, if the commons taxed none but themselves: but it is notorious, that a very large share of property is in the possession of the house of lords; that this property is equally taxable, and taxed, as the property of the commons; and therefore the commons not being the _sole_ persons taxed, this cannot be the reason of their having the _sole_ right of raising and modelling the supply. the true reason, arising from the spirit of our constitution, seems to be this. the lords being a permanent hereditary body, created at pleasure by the king, are supposed more liable to be influenced by the crown, and when once influenced to continue so, than the commons, who are a temporary elective body, freely nominated by the people. it would therefore be extremely dangerous, to give them any power of framing new taxes for the subject: it is sufficient, that they have a power of rejecting, if they think the commons too lavish or improvident in their grants. but so reasonably jealous are the commons of this valuable privilege, that herein they will not suffer the other house to exert any power but that of rejecting; they will not permit the least alteration or amendment to be made by the lords to the mode of taxing the people by a money bill; under which appellation are included all bills, by which money is directed to be raised upon the subject, for any purpose or in any shape whatsoever; either for the exigencies of government, and collected from the kingdom in general, as the land tax; or for private benefit, and collected in any particular district; as by turnpikes, parish rates, and the like. yet sir matthew hale[u] mentions one case, founded on the practice of parliament in the reign of henry vi[w], wherein he thinks the lords may alter a money bill; and that is, if the commons grant a tax, as that of tonnage and poundage, for _four_ years; and the lords alter it to a less time, as for _two_ years; here, he says, the bill need not be sent back to the commons for their concurrence, but may receive the royal assent without farther ceremony; for the alteration of the lords is consistent with the grant of the commons. but such an experiment will hardly be repeated by the lords, under the present improved idea of the privilege of the house of commons: and, in any case where a money bill is remanded to the commons, all amendments in the mode of taxation are sure to be rejected. [footnote t: 4 inst. 29.] [footnote u: on parliaments, 65, 66.] [footnote w: year book, 33 hen. vi. 17.] next, with regard to the elections of knights, citizens, and burgesses; we may observe that herein consists the exercise of the democratical part of our constitution: for in a democracy there can be no exercise of sovereignty but by suffrage, which is the declaration of the people's will. in all democracies therefore it is of the utmost importance to regulate by whom, and in what manner, the suffrages are to be given. and the athenians were so justly jealous of this prerogative, that a stranger, who interfered in the assemblies of the people, was punished by their laws with death: because such a man was esteemed guilty of high treason, by usurping those rights of sovereignty, to which he had no title. in england, where the people do not debate in a collective body but by representation, the exercise of this sovereignty consists in the choice of representatives. the laws have therefore very strictly guarded against usurpation or abuse of this power, by many salutary provisions; which may be reduced to these three points, 1. the qualifications of the electors. 2. the qualifications of the elected. 3. the proceedings at elections. 1. as to the qualifications of the electors. the true reason of requiring any qualification, with regard to property, in voters, is to exclude such persons as are in so mean a situation that they are esteemed to have no will of their own. if these persons had votes, they would be tempted to dispose of them under some undue influence or other. this would give a great, an artful, or a wealthy man, a larger share in elections than is consistent with general liberty. if it were probable that every man would give his vote freely, and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote in electing those delegates, to whose charge is committed the disposal of his property, his liberty, and his life. but, since that can hardly be expected in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications; whereby some, who are suspected to have no will of their own, are excluded from voting, in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other. and this constitution of suffrages is framed upon a wiser principle than either of the methods of voting, by centuries, or by tribes, among the romans. in the method by centuries, instituted by servius tullius, it was principally property, and not numbers that turned the scale: in the method by tribes, gradually introduced by the tribunes of the people, numbers only were regarded and property entirely overlooked. hence the laws passed by the former method had usually too great a tendency to aggrandize the patricians or rich nobles; and those by the latter had too much of a levelling principle. our constitution steers between the two extremes. only such as are entirely excluded, as can have no will of their own: there is hardly a free agent to be found, but what is entitled to a vote in some place or other in the kingdom. nor is comparative wealth, or property, entirely disregarded in elections; for though the richest man has only one vote at one place, yet if his property be at all diffused, he has probably a right to vote at more places than one, and therefore has many representatives. this is the spirit of our constitution: not that i assert it is in fact quite so perfect as i have here endeavoured to describe it; for, if any alteration might be wished or suggested in the present frame of parliaments, it should be in favour of a more complete representation of the people. but to return to our qualifications; and first those of electors for knights of the shire. 1. by statute 8 hen. vi. c. 7. and 10 hen. vi. c. 2. the knights of the shires shall be chosen of people dwelling in the same counties; whereof every man shall have freehold to the value of forty shillings by the year within the county; which by subsequent statutes is to be clear of all charges and deductions, except parliamentary and parochial taxes. the knights of shires are the representatives of the landholders, or landed interest, of the kingdom: their electors must therefore have estates in lands or tenements, within the county represented: these estates must be freehold, that is, for term of life at least; because beneficial leases for long terms of years were not in use at the making of these statutes, and copyholders were then little better than villeins, absolutely dependent upon their lord: this freehold must be of forty shillings annual value; because that sum would then, with proper industry, furnish all the necessaries of life, and render the freeholder, if he pleased, an independent man. for bishop fleetwood, in his _chronicon pretiosum_ written about sixty years since, has fully proved forty shillings in the reign of henry vi to have been equal to twelve pounds _per annum_ in the reign of queen anne; and, as the value of money is very considerably lowered since the bishop wrote, i think we may fairly conclude, from this and other circumstances, that what was equivalent to twelve pounds in his days is equivalent to twenty at present. the other less important qualifications of the electors for counties in england and wales may be collected from the statutes cited in the margin[x]; which direct, 2. that no person under twenty one years of age shall be capable of voting for any member. this extends to all sorts of members, as well for boroughs as counties; as does also the next, viz. 3. that no person convicted of perjury, or subornation of perjury, shall be capable of voting in any election. 4. that no person shall vote in right of any freehold, granted to him fraudulently to qualify him to vote. fraudulent grants are such as contain an agreement to reconvey, or to defeat the estate granted; which agreements are made void, and the estate is absolutely vested in the person to whom it is so granted. and, to guard the better against such frauds, it is farther provided, 5. that every voter shall have been in the actual possession, or receipt of the profits, of his freehold to his own use for twelve calendar months before; except it came to him by descent, marriage, marriage settlement, will, or promotion to a benefice or office. 6. that no person shall vote in respect of an annuity or rentcharge, unless registered with the clerk of the peace twelve calendar months before. 7. that in mortgaged or trust-estates, the person in possession, under the abovementioned restrictions, shall have the vote. 8. that only one person shall be admitted to vote for any one house or tenement, to prevent the splitting of freeholds. 9. that no estate shall qualify a voter, unless the estate has been assessed to some land tax aid, at least twelve months before the election. 10. that no tenant by copy of court roll shall be permitted to vote as a freeholder. thus much for the electors in counties. [footnote x: 7 & 8 w. iii. c. 25. 10 ann. c. 23. 2 geo. ii. c. 21. 18 geo. ii. c. 18. 31 geo. ii. c. 14. 3 geo. iii. c. 24.] as for the electors of citizens and burgesses, these are supposed to be the mercantile part or trading interest of this kingdom. but as trade is of a fluctuating nature, and seldom long fixed in a place, it was formerly left to the crown to summon, _pro re nata_, the most flourishing towns to send representatives to parliament. so that as towns encreased in trade, and grew populous, they were admitted to a share in the legislature. but the misfortune is, that the deserted boroughs continued to be summoned, as well as those to whom their trade and inhabitants were transferred; except a few which petitioned to be eased of the expence, then usual, of maintaining their members: four shillings a day being allowed for a knight of the shire, and two shillings for a citizen or burgess; which was the rate of wages established in the reign of edward iii[y]. hence the members for boroughs now bear above a quadruple proportion to those for counties, and the number of parliament men is increased since fortescue's time, in the reign of henry the sixth, from 300 to upwards of 500, exclusive of those for scotland. the universities were in general not empowered to send burgesses to parliament; though once, in 28 edw. i. when a parliament was summoned to consider of the king's right to scotland, there were issued writs, which required the university of oxford to send up four or five, and that of cambridge two or three, of their most discreet and learned lawyers for that purpose[z]. but it was king james the first, who indulged them with the permanent privilege to send constantly two of their own body; to serve for those students who, though useful members of the community, were neither concerned in the landed nor the trading interest; and to protect in the legislature the rights of the republic of letters. the right of election in boroughs is various, depending intirely on the several charters, customs, and constitutions of the respective places, which has occasioned infinite disputes; though now by statute 2 geo. ii. c. 24. the right of voting for the future shall be allowed according to the last determination of the house of commons concerning it. and by statute 3 geo. iii. c. 15. no freeman of any city or borough (other than such as claim by birth, marriage, or servitude) shall be intitled to vote therein unless he hath been admitted to his freedom twelve calendar months before. [footnote y: 4 inst. 16.] [footnote z: prynne parl. writs. i. 345.] 2. our second point is the qualification of persons to be elected members of the house of commons. this depends upon the law and custom of parliaments[a], and the statutes referred to in the margin[b]. and from these it appears, 1. that they must not be aliens born, or minors. 2. that they must not be any of the twelve judges, because they sit in the lords' house; nor of the clergy, for they sit in the convocation; nor persons attainted of treason or felony, for they are unfit to sit any where[c]. 3. that sheriffs of counties, and mayors and bailiffs of boroughs, are not eligible in their respective jurisdictions, as being returning officers[d]; but that sheriffs of one county are eligible to be knights of another[e]. 4. that, in strictness, all members ought to be inhabitants of the places for which they are chosen: but this is intirely disregarded. 5. that no persons concerned in the management of any duties or taxes created since 1692, except the commissioners of the treasury, nor any of the officers following, (viz. commissioners of prizes, transports, sick and wounded, wine licences, navy, and victualling; secretaries or receivers of prizes; comptrollers of the army accounts; agents for regiments; governors of plantations and their deputies; officers of minorca or gibraltar; officers of the excise and customs; clerks or deputies in the several offices of the treasury, exchequer, navy, victualling, admiralty, pay of the army or navy, secretaries of state, salt, stamps, appeals, wine licences, hackney coaches, hawkers and pedlars) nor any persons that hold any new office under the crown created since 1705, are capable of being elected members. 6. that no person having a pension under the crown during pleasure, or for any term of years, is capable of being elected. 7. that if any member accepts an office under the crown, except an officer in the army or navy accepting a new commission, his seat is void; but such member is capable of being re-elected. 8. that all knights of the shire shall be actual knights, or such notable esquires and gentlemen, as have estates sufficient to be knights, and by no means of the degree of yeomen. this is reduced to a still greater certainty, by ordaining, 9. that every knight of a shire shall have a clear estate of freehold or copyhold to the value of six hundred pounds _per annum_, and every citizen and burgess to the value of three hundred pounds; except the eldest sons of peers, and of persons qualified to be knights of shires, and except the members for the two universities: which somewhat ballances the ascendant which the boroughs have gained over the counties, by obliging the trading interest to make choice of landed men: and of this qualification the member must make oath, and give in the particulars in writing, at the time of his taking his seat. but, subject to these restrictions and disqualifications, every subject of the realm is eligible of common right. it was therefore an unconstitutional prohibition, which was inserted in the king's writs, for the parliament holden at coventry, 6 hen. iv, that no apprentice or other man of the law should be elected a knight of the shire therein[f]: in return for which, our law books and historians[g] have branded this parliament with the name of _parliamentum indoctum_, or the lack-learning parliament; and sir edward coke observes with some spleen[h], that there was never a good law made thereat. [footnote a: 4 inst. 47.] [footnote b: 1 hen. v. c. 1. 23 hen. vi. c. 15. 1 w. & m. st. 2. c. 2. 5 & 6 w. & m. c. 7. 11 & 12 w. iii. c. 2. 12 & 13 w. iii. c. 10. 6 ann. c. 7. 9 ann. c. 5. 1 geo. i. c. 56. 15 geo. ii. c. 22. 33 geo. ii. c. 20.] [footnote c: 4 inst. 47.] [footnote d: hale of parl. 114.] [footnote e: 4 inst. 48.] [footnote f: pryn. on 4 inst. 13.] [footnote g: walsingh. _a.d._ 1405.] [footnote h: 4 inst. 48.] 3. the third point regarding elections, is the method of proceeding therein. this is also regulated by the law of parliament, and the several statutes referred to in the margin[i]; all which i shall endeavour to blend together, and extract out of them a summary account of the method of proceeding to elections. [footnote i: 7 hen. iv. c. 15. 8 hen. vi. c. 7. 23 hen. vi. c. 15. 1 w. & m. st. 1. c. 2. 2 w. & m. st. 1. c. 7. 5 & 6 w. & m. c. 20. 7 w. iii. c. 4. 7 & 8 w. iii. c. 7. and c. 25. 10 & 11 w. iii. c. 7. 12 & 13 w. iii. c. 10. 6 ann. c. 23. 9 ann. c. 5. 10 ann. c. 19. and c. 23. 2 geo. ii. c. 24. 8 geo. ii. c. 30. 18 geo. ii. c. 18. 19 geo. ii. c. 28.] as soon as the parliament is summoned, the lord chancellor, (or if a vacancy happens during parliament, the speaker, by order of the house) sends his warrant to the clerk of the crown in chancery; who thereupon issues out writs to the sheriff of every county, for the election of all the members to serve for that county, and every city and borough therein. within three days after the receipt of this writ, the sheriff is to send his precept, under his seal, to the proper returning officers of the cities and boroughs, commanding them to elect their members; and the said returning officers are to proceed to election within eight days from the receipt of the precept, giving four days notice of the same; and to return the persons chosen, together with the precept, to the sheriff. but elections of knights of the shire must be proceeded to by the sheriffs themselves in person, at the next county court that shall happen after the delivery of the writ. the county court is a court held every month or oftener by the sheriff, intended to try little causes not exceeding the value of forty shillings, in what part of the county he pleases to appoint for that purpose: but for the election of knights of the shire, it must be held at the most usual place. if the county court falls upon the day of delivering the writ, or within six days after, the sheriff may adjourn the court and election to some other convenient time, not longer than sixteen days, nor shorter than ten; but he cannot alter the place, without the consent of all the candidates; and in all such cases ten days public notice must be given of the time and place of the election. and, as it is essential to the very being of parliament that elections should be absolutely free, therefore all undue influences upon the electors are illegal, and strongly prohibited. for mr locke[k] ranks it among those breaches of trust in the executive magistrate, which according to his notions amount to a dissolution of the government, "if he employs the force, treasure, and offices of the society to corrupt the representatives, or openly to preingage the electors, and prescribe what manner of persons shall be chosen. for thus to regulate candidates and electors, and new model the ways of election, what is it, says he, but to cut up the government by the roots, and poison the very fountain of public security?" as soon therefore as the time and place of election, either in counties or boroughs, are fixed, all soldiers quartered in the place are to remove, at least one day before the election, to the distance of two miles or more; and not return till one day after the poll is ended. riots likewise have been frequently determined to make an election void. by vote also of the house of commons, to whom alone belongs the power of determining contested elections, no lord of parliament, or lord lieutenant of a county, hath any right to interfere in the election of commoners; and, by statute, the lord warden of the cinque ports shall not recommend any members there. if any officer of the excise, customs, stamps, or certain other branches of the revenue, presumes to intermeddle in elections, by persuading any voter or dissuading him, he forfeits 100_l_, and is disabled to hold any office. [footnote k: on gov. part. 2. â§. 222.] thus are the electors of one branch of the legislature secured from any undue influence from either of the other two, and from all external violence and compulsion. but the greatest danger is that in which themselves co-operate, by the infamous practice of bribery and corruption. to prevent which it is enacted that no candidate shall, after the date (usually called the _teste_) of the writs, or after the vacancy, give any money or entertainment to his electors, or promise to give any, either to particular persons, or to the place in general, in order to his being elected; on pain of being incapable to serve for that place in parliament. and if any money, gift, office, employment, or reward be given or promised to be given to any voter, at any time, in order to influence him to give or withhold his vote, both he that takes and he that offers such bribe forfeits 500_l_, and is for ever disabled from voting and holding any office in any corporation; unless, before conviction, he will discover some other offender of the same kind, and then he is indemnified for his own offence[l]. the first instance that occurs of election bribery, was so early as 13 eliz. when one thomas longe (being a simple man and of small capacity to serve in parliament) acknowleged that he had given the returning officer and others of the borough of westbury four pounds to be returned member, and was for that premium elected. but for this offence the borough was amerced, the member was removed, and the officer fined and imprisoned[m]. but, as this practice hath since taken much deeper and more universal root, it hath occasioned the making of these wholesome statutes; to complete the efficacy of which, there is nothing wanting but resolution and integrity to put them in strict execution. [footnote l: in like manner the julian law _de ambitu_ inflicts fines and infamy upon all who were guilty of corruption at elections; but, if the person guilty convicted another offender, he was restored to his credit again. _ff._ 48. 14. 1.] [footnote m: 4 inst. 23. hale of parl. 112. com. journ. 10 & 11 may 1571.] undue influence being thus (i wish the depravity of mankind would permit me to say, effectually) guarded against, the election is to be proceeded to on the day appointed; the sheriff or other returning officer first taking an oath against bribery, and for the due execution of his office. the candidates likewise, if required, must swear to their qualification; and the electors in counties to theirs; and the electors both in counties and boroughs are also compellable to take the oath of abjuration and that against bribery and corruption. and it might not be amiss, if the members elected were bound to take the latter oath, as well as the former; which in all probability would be much more effectual, than administring it only to the electors. the election being closed, the returning officer in boroughs returns his precept to the sheriff, with the persons elected by the majority: and the sheriff returns the whole, together with the writ for the county and the knights elected thereupon, to the clerk of the crown in chancery; before the day of meeting, if it be a new parliament, or within fourteen days after the election, if it be an occasional vacancy; and this under penalty of 500_l_. if the sheriff does not return such knights only as are duly elected, he forfeits, by the old statutes of henry vi, 100_l_; and the returning officer in boroughs for a like false return 40_l_; and they are besides liable to an action, in which double damages shall be recovered, by the later statutes of king william: and any person bribing the returning officer shall alio forfeit 300_l_. but the members returned by him are the sitting members, until the house of commons, upon petition, shall adjudge the return to be false and illegal. and this abstract of the proceedings at elections of knights, citizens, and burgesses, concludes our enquiries into the laws and customs more peculiarly relative to the house of commons. vi. i proceed now, sixthly, to the method of making laws; which is much the same in both houses: and i shall touch it very briefly, beginning in the house of commons. but first i must premise, that for dispatch of business each house of parliament has it's speaker. the speaker of the house of lords is the lord chancellor, or keeper of the king's great seal; whose office it is to preside there, and manage the formality of business. the speaker of the house of commons is chosen by the house; but must be approved by the king. and herein the usage of the two houses differs, that the speaker of the house of commons cannot give his opinion or argue any question in the house; but the speaker of the house of lords may. in each house the act of the majority binds the whole; and this majority is declared by votes openly and publickly given: not as at venice, and many other senatorial assemblies, privately or by ballot. this latter method may be serviceable, to prevent intrigues and unconstitutional combinations: but is impossible to be practiced with us; at least in the house of commons, where every member's conduct is subject to the future censure of his constituents, and therefore should be openly submitted to their inspection. to bring a bill into the house, if the relief sought by it is of a private nature, it is first necessary to prefer a petition; which must be presented by a member, and usually sets forth the grievance desired to be remedied. this petition (when founded on facts that may be in their nature disputed) is referred to a committee of members, who examine the matter alleged, and accordingly report it to the house; and then (or, otherwise, upon the mere petition) leave is given to bring in the bill. in public matters the bill is brought in upon motion made to the house, without any petition at all. formerly, all bills were drawn in the form of petitions, which were entered upon the _parliament rolls_, with the king's answer thereunto subjoined; not in any settled form of words, but as the circumstances of the case required[n]: and at the end of each parliament the judges drew them into the form of a statute, which was entered on the _statute-rolls_. in the reign of henry v, to prevent mistakes and abuses, the statutes were drawn up by the judges before the end of the parliament; and, in the reign of henry vi, bills in the form of acts, according to the modern custom, were first introduced. [footnote n: see, among numberless other instances, the _articuli cleri_, 9 edw. ii.] the persons, directed to bring in the bill, present it in a competent time to the house, drawn out on paper, with a multitude of blanks, or void spaces, where any thing occurs that is dubious, or necessary to be settled by the parliament itself; (such, especially, as the precise date of times, the nature and quantity of penalties, or of any sums of money to be raised) being indeed only the sceleton of the bill. in the house of lords, if the bill begins there, it is (when of a private nature) perused by two of the judges, who settle all points of legal propriety. this is read a first time, and at a convenient distance a second time; and after each reading the speaker opens to the house the substance of the bill, and puts the question, whether it shall proceed any farther. the introduction of the bill may be originally opposed, as the bill itself may at either of the readings; and, if the opposition succeeds, the bill must be dropt for that sessions; as it must also, if opposed with success in any of the subsequent stages. after the second reading it is committed, that is, referred to a committee; which is either selected by the house in matters of small importance, or else, upon a bill of consequence, the house resolves itself into a committee of the whole house. a committee of the whole house is composed of every member; and, to form it, the speaker quits the chair, (another member being appointed chairman) and may sit and debate as a private member. in these committees the bill is debated clause by clause, amendments made, the blanks filled up, and sometimes the bill entirely new modelled. after it has gone through the committee, the chairman reports it to the house with such amendments as the committee have made; and then the house reconsider the whole bill again, and the question is repeatedly put upon every clause and amendment. when the house have agreed or disagreed to the amendments of the committee, and sometimes added new amendments of their own, the bill is then ordered to be engrossed, or written in a strong gross hand, on one or more long rolls of parchment sewed together. when this is finished, it is read a third time, and amendments are sometimes then made to it; and, if a new clause be added, it is done by tacking a separate piece of parchment on the bill, which is called a ryder. the speaker then again opens the contents; and, holding it up in his hands, puts the question, whether the bill shall pass. if this is agreed to, one of the members is directed to carry it to the lords, and desire their concurrence; who, attended by several more, carries it to the bar of the house of peers, and there delivers it to their speaker, who comes down from his woolsack to receive it. it there passes through the same forms as in the other house, (except engrossing, which is already done) and, if rejected, no more notice is taken, but it passes _sub silentio_, to prevent unbecoming altercations. but if it is agreed to, the lords send a message by two masters in chancery (or sometimes two of the judges) that they have agreed to the same: and the bill remains with the lords, if they have made no amendment to it. but if any amendments are made, such amendments are sent down with the bill to receive the concurrence of the commons. if the commons disagree to the amendments, a conference usually follows between members deputed from each house; who for the most part settle and adjust the difference: but, if both houses remain inflexible, the bill is dropped. if the commons agree to the amendments, the bill is sent back to the lords by one of the members, with a message to acquaint them therewith. the same forms are observed, _mutatis mutandis_, when the bill begins in the house of lords. and when both houses have done with the bill, it always is deposited in the house of peers, to wait the royal assent. this may be given two ways: 1. in person; when the king comes to the house of peers, in his crown and royal robes, and sending for the commons to the bar, the titles of all the bills that have passed both houses are read; and the king's answer is declared by the clerk of the parliament in norman-french: a badge, it must be owned, (now the only one remaining) of conquest; and which one could wish to see fall into total oblivion; unless it be reserved as a solemn memento to remind us that our liberties are mortal, having once been destroyed by a foreign force. if the king consents to a public bill, the clerk usually declares, "_le roy le veut_, the king wills it so to be;" if to a private bill, "_soit fait come il est desirã¨_, be it as it is desired." if the king refuses his assent, it is in the gentle language of "_le roy s'avisera_, the king will advise upon it." 2. by statute 33 hen. viii. c. 21. the king may give his assent by letters patent under his great seal, signed with his hand, and notified, in his absence, to both houses assembled together in the high house. and, when the bill has received the royal assent in either of these ways, it is then, and not before, a statute or act of parliament. this statute or act is placed among the records of the kingdom; there needing no formal promulgation to give it the force of a law, as was necessary by the civil law with regard to the emperors edicts: because every man in england is, in judgment of law, party to the making of an act of parliament, being present thereat by his representatives. however, a copy thereof is usually printed at the king's press, for the information of the whole land. and formerly, before the invention of printing, it was used to be published by the sheriff of every county; the king's writ being sent to him at the end of every session, together with a transcript of all the acts made at that session, commanding him "_ut statuta illa, et omnes articulos in eisdem contentos, in singulis locis ubi expedire viderit, publice proclamari, et firmiter teneri et observari faciat_." and the usage was to proclaim them at his county court, and there to keep them, that whoever would might read or take copies thereof; which custom continued till the reign of henry the seventh[o]. [footnote o: 3 inst. 41. 4 inst. 26.] an act of parliament, thus made, is the exercise of the highest authority that this kingdom acknowleges upon earth. it hath power to bind every subject in the land, and the dominions thereunto belonging; nay, even the king himself, if particularly named therein. and it cannot be altered, amended, dispensed with, suspended, or repealed, but in the same forms and by the same authority of parliament: for it is a maxim in law, that it requires the same strength to dissolve, as to create an obligation. it is true it was formerly held, that the king might in many cases dispense with penal statutes[p]: but now by statute 1 w. & m. st. 2. c. 2. it is declared, that the suspending or dispensing with laws by regal authority, without consent of parliament, is illegal. [footnote p: finch. l. 81. 234.] vii. there remains only, in the seventh and last place, to add a word or two concerning the manner in which parliaments may be adjourned, prorogued, or dissolved. an adjournment is no more than a continuance of the session from one day to another, as the word itself signifies: and this is done by the authority of each house separately every day; and sometimes for a fortnight or a month together, as at christmas or easter, or upon other particular occasions. but the adjournment of one house is no adjournment of the other[q]. it hath also been usual, when his majesty hath signified his pleasure that both or either of the houses should adjourn themselves to a certain day, to obey the king's pleasure so signified, and to adjourn accordingly[r]. otherwise, besides the indecorum of a refusal, a prorogation would assuredly follow; which would often be very inconvenient to both public and private business. for prorogation puts an end to the session; and then such bills, as are only begun and not perfected, must be resumed _de novo_ (if at all) in a subsequent session: whereas, after an adjournment, all things continue in the same state as at the time of the adjournment made, and may be proceeded on without any fresh commencement. [footnote q: 4 inst. 28.] [footnote r: com. journ. _passim_: _e.g._ 11 jun. 1572. 5 apr. 1604. 4 jun. 14 nov. 18 dec. 1621. 11 jul. 1625. 13 sept. 1660. 25 jul. 1667. 4 aug. 1685. 24 febr. 1691. 21 jun. 1712. 16 apr. 1717. 3 feb. 1741. 10 dec. 1745.] a prorogation is the continuance of the parliament from one session to another, as an adjournment is a continuation of the session from day to day. this is done by the royal authority, expressed either by the lord chancellor in his majesty's presence, or by commission from the crown, or frequently by proclamation. both houses are necessarily prorogued at the same time; it not being a prorogation of the house of lords, or commons, but of the parliament. the session is never understood to be at an end, until a prorogation: though, unless some act be passed or some judgment given in parliament, it is in truth no session at all[s]. and formerly the usage was, for the king to give the royal assent to all such bills as he approved, at the end of every session, and then to prorogue the parliament; though sometimes only for a day or two[t]: after which all business then depending in the houses was to be begun again. which custom obtained so strongly, that it once became a question[u], whether giving the royal assent to a single bill did not of course put an end to the session. and, though it was then resolved in the negative, yet the notion was so deeply rooted, that the statute 1 car. i. c. 7. was passed to declare, that the king's assent to that and some other acts should not put an end to the session; and, even so late as the restoration of charles ii, we find a proviso tacked to the first bill then enacted[w] that his majesty's assent thereto should not determine the session of parliament. but it now seems to be allowed, that a prorogation must be expressly made, in order to determine the session. and, if at the time of an actual rebellion, or imminent danger of invasion, the parliament shall be separated by adjournment or prorogation, the king is empowered[x] to call them together by proclamation, with fourteen days notice of the time appointed for their reassembling. [footnote s: 4 inst. 28. hale of parl. 38.] [footnote t: com. journ. 21 oct. 1553.] [footnote u: _ibid._ 21 nov. 1554.] [footnote w: stat. 12 car. ii. c. 1.] [footnote x: stat. 30 geo. ii. c. 25.] a dissolution is the civil death of the parliament; and this may be effected three ways: 1. by the king's will, expressed either in person or by representation. for, as the king has the sole right of convening the parliament, so also it is a branch of the royal prerogative, that he may (whenever he pleases) prorogue the parliament for a time, or put a final period to it's existence. if nothing had a right to prorogue or dissolve a parliament but itself, it might happen to become perpetual. and this would be extremely dangerous, if at any time it should attempt to encroach upon the executive power: as was fatally experienced by the unfortunate king charles the first; who, having unadvisedly passed an act to continue the parliament then in being till such time as it should please to dissolve itself, at last fell a sacrifice to that inordinate power, which he himself had consented to give them. it is therefore extremely necessary that the crown should be empowered to regulate the duration of these assemblies, under the limitations which the english constitution has prescribed: so that, on the one hand, they may frequently and regularly come together, for the dispatch of business and redress of grievances; and may not, on the other, even with the consent of the crown, be continued to an inconvenient or unconstitutional length. 2. a parliament may be dissolved by the demise of the crown. this dissolution formerly happened immediately upon the death of the reigning sovereign, for he being considered in law as the head of the parliament, (_caput, principium, et finis_) that failing, the whole body was held to be extinct. but, the calling a new parliament immediately on the inauguration of the successor being found inconvenient, and dangers being apprehended from having no parliament in being in case of a disputed succession, it was enacted by the statutes 7 & 8 w. iii. c. 15. and 6 ann. c. 7. that the parliament in being shall continue for six months after the death of any king or queen, unless sooner prorogued or dissolved by the successor: that, if the parliament be, at the time of the king's death, separated by adjournment or prorogation, it shall notwithstanding assemble immediately: and that, if no parliament is then in being, the members of the last parliament shall assemble, and be again a parliament. 3. lastly, a parliament may be dissolved or expire by length of time. for if either the legislative body were perpetual; or might last for the life of the prince who convened them, as formerly; and were so to be supplied, by occasionally filling the vacancies with new representatives; in these cases, if it were once corrupted, the evil would be past all remedy: but when different bodies succeed each other, if the people see cause to disapprove of the present, they may rectify it's faults in the next. a legislative assembly also, which is sure to be separated again, (whereby it's members will themselves become private men, and subject to the full extent of the laws which they have enacted for others) will think themselves bound, in interest as well as duty, to make only such laws as are good. the utmost extent of time that the same parliament was allowed to sit, by the statute 6 w. & m. c. 2. was _three_ years; after the expiration of which, reckoning from the return of the first summons, the parliament was to have no longer continuance. but by the statute 1 geo. i. st. 2. c. 38. (in order, professedly, to prevent the great and continued expenses of frequent elections, and the violent heats and animosities consequent thereupon, and for the peace and security of the government then just recovering from the late rebellion) this term was prolonged to _seven_ years; and, what alone is an instance of the vast authority of parliament, the very same house, that was chosen for three years, enacted it's own continuance for seven. so that, as our constitution now stands, the parliament must expire, or die a natural death, at the end of every seventh year; if not sooner dissolved by the royal prerogative. chapter the third. of the king, and his title. the supreme executive power of these kingdoms is vested by our laws in a single person, the king or queen: for it matters not to which sex the crown descends; but the person entitled to it, whether male or female, is immediately invested with all the ensigns, rights, and prerogatives of sovereign power; as is declared by statute 1 mar. st. 3. c. 1. in discoursing of the royal rights and authority, i shall consider the king under six distinct views: 1. with regard to his title. 2. his royal family. 3. his councils. 4. his duties. 5. his prerogative. 6. his revenue. and, first, with regard to his title. the executive power of the english nation being vested in a single person, by the general consent of the people, the evidence of which general consent is long and immemorial usage, it became necessary to the freedom and peace of the state, that a rule should be laid down, uniform, universal, and permanent; in order to mark out with precision, _who_ is that single person, to whom are committed (in subservience to the law of the land) the care and protection of the community; and to whom, in return, the duty and allegiance of every individual are due. it is of the highest importance to the public tranquillity, and to the consciences of private men, that this rule should be clear and indisputable: and our constitution has not left us in the dark upon this material occasion. it will therefore be the endeavour of this chapter to trace out the constitutional doctrine of the royal succession, with that freedom and regard to truth, yet mixed with that reverence and respect, which the principles of liberty and the dignity of the subject require. the grand fundamental maxim upon which the _jus coronae_, or right of succession to the throne of these kingdoms, depends, i take to be this: "that the crown is, by common law and constitutional custom, hereditary; and this in a manner peculiar to itself: but that the right of inheritance may from time to time be changed or limited by act of parliament; under which limitations the crown still continues hereditary." and this proposition it will be the business of this chapter to prove, in all it's branches: first, that the crown is hereditary; secondly, that it is hereditary in a manner peculiar to itself; thirdly, that this inheritance is subject to limitation by parliament; lastly, that when it is so limited, it is hereditary in the new proprietor. 1. first, it is in general _hereditary_, or descendible to the next heir, on the death or demise of the last proprietor. all regal governments must be either hereditary or elective: and, as i believe there is no instance wherein the crown of england has ever been asserted to be elective, except by the regicides at the infamous and unparalleled trial of king charles i, it must of consequence be hereditary. yet while i assert an hereditary, i by no means intend a _jure divino_, title to the throne. such a title may be allowed to have subsisted under the theocratic establishments of the children of israel in palestine: but it never yet subsisted in any other country; save only so far as kingdoms, like other human fabrics, are subject to the general and ordinary dispensations of providence. nor indeed have a _jure divino_ and an _hereditary_ right any necessary connexion with each other; as some have very weakly imagined. the titles of david and jehu were equally _jure divino_, as those of either solomon or ahab; and yet david slew the sons of his predecessor, and jehu his predecessor himself. and when our kings have the same warrant as they had, whether it be to sit upon the throne of their fathers, or to destroy the house of the preceding sovereign, they will then, and not before, possess the crown of england by a right like theirs, _immediately_ derived from heaven. the hereditary right, which the laws of england acknowlege, owes it's origin to the founders of our constitution, and to them only. it has no relation to, nor depends upon, the civil laws of the jews, the greeks, the romans, or any other nation upon earth: the municipal laws of one society having no connexion with, or influence upon, the fundamental polity of another. the founders of our english monarchy might perhaps, if they had thought proper, have made it an elective monarchy: but they rather chose, and upon good reason, to establish originally a succession by inheritance. this has been acquiesced in by general consent; and ripened by degrees into common law: the very same title that every private man has to his own estate. lands are not naturally descendible any more than thrones: but the law has thought proper, for the benefit and peace of the public, to establish hereditary succession in one as well as the other. it must be owned, an elective monarchy seems to be the most obvious, and best suited of any to the rational principles of government, and the freedom of human nature: and accordingly we find from history that, in the infancy and first rudiments of almost every state, the leader, chief magistrate, or prince, hath usually been elective. and, if the individuals who compose that state could always continue true to first principles, uninfluenced by passion or prejudice, unassailed by corruption, and unawed by violence, elective succession were as much to be desired in a kingdom, as in other inferior communities. the best, the wisest, and the bravest man would then be sure of receiving that crown, which his endowments have merited; and the sense of an unbiassed majority would be dutifully acquiesced in by the few who were of different opinions. but history and observation will inform us, that elections of every kind (in the present state of human nature) are too frequently brought about by influence, partiality, and artifice: and, even where the case is otherwise, these practices will be often suspected, and as constantly charged upon the successful, by a splenetic disappointed minority. this is an evil, to which all societies are liable; as well those of a private and domestic kind, as the great community of the public, which regulates and includes the rest. but in the former there is this advantage; that such suspicions, if false, proceed no farther than jealousies and murmurs, which time will effectually suppress; and, if true, the injustice may be remedied by legal means, by an appeal to those tribunals to which every member of society has (by becoming such) virtually engaged to submit. whereas, in the great and independent society, which every nation composes, there is no superior to resort to but the law of nature; no method to redress the infringements of that law, but the actual exertion of private force. as therefore between two nations, complaining of mutual injuries, the quarrel can only be decided by the law of arms; so in one and the same nation, when the fundamental principles of their common union are supposed to be invaded, and more especially when the appointment of their chief magistrate is alleged to be unduly made, the only tribunal to which the complainants can appeal is that of the god of battels, the only process by which the appeal can be carried on is that of a civil and intestine war. an hereditary succession to the crown is therefore now established, in this and most other countries, in order to prevent that periodical bloodshed and misery, which the history of antient imperial rome, and the more modern experience of poland and germany, may shew us are the consequences of elective kingdoms. 2. but, secondly, as to the particular mode of inheritance, it in general corresponds with the feodal path of descents, chalked out by the common law in the succession to landed estates; yet with one or two material exceptions. like them, the crown will descend lineally to the issue of the reigning monarch; as it did from king john to richard ii, through a regular pedigree of six lineal descents. as in them, the preference of males to females, and the right of primogeniture among the males, are strictly adhered to. thus edward v succeeded to the crown, in preference to richard his younger brother and elizabeth his elder sister. like them, on failure of the male line, it descends to the issue female; according to the antient british custom remarked by tacitus[a], "_solent foeminarum ductu bellare, et sexum in imperiis non discernere_." thus mary i succeeded to edward vi; and the line of margaret queen of scots, the daughter of henry vii, succeeded on failure of the line of henry viii, his son. but, among the females, the crown descends by right of primogeniture to the eldest daughter only and her issue; and not, as in common inheritances, to all the daughters at once; the evident necessity of a sole succession to the throne having occasioned the royal law of descents to depart from the common law in this respect: and therefore queen mary on the death of her brother succeeded to the crown alone, and not in partnership with her sister elizabeth. again: the doctrine of representation prevails in the descent of the crown, as it does in other inheritances; whereby the lineal descendants of any person deceased stand in the same place as their ancestor, if living, would have done. thus richard ii succeeded his grandfather edward iii, in right of his father the black prince; to the exclusion of all his uncles, his grandfather's younger children. lastly, on failure of lineal descendants, the crown goes to the next collateral relations of the late king; provided they are lineally descended from the blood royal, that is, from that royal stock which originally acquired the crown. thus henry i succeeded to william ii, john to richard i, and james i to elizabeth; being all derived from the conqueror, who was then the only regal stock. but herein there is no objection (as in the case of common descents) to the succession of a brother, an uncle, or other collateral relation, of the _half_ blood; that is, where the relationship proceeds not from the same _couple_ of ancestors (which constitutes a kinsman of the _whole_ blood) but from a _single_ ancestor only; as when two persons are derived from the same father, and not from the same mother, or _vice versa_: provided only, that the one ancestor, from whom both are descended, be he from whose veins the blood royal is communicated to each. thus mary i inherited to edward vi, and elizabeth inherited to mary; all born of the same father, king henry viii, but all by different mothers. the reason of which diversity, between royal and common descents, will be better understood hereafter, when we examine the nature of inheritances in general. [footnote a: _in vit. agricolae._] 3. the doctrine of _hereditary_ right does by no means imply an _indefeasible_ right to the throne. no man will, i think, assert this, that has considered our laws, constitution, and history, without prejudice, and with any degree of attention. it is unquestionably in the breast of the supreme legislative authority of this kingdom, the king and both houses of parliament, to defeat this hereditary right; and, by particular entails, limitations, and provisions, to exclude the immediate heir, and vest the inheritance in any one else. this is strictly consonant to our laws and constitution; as may be gathered from the expression so frequently used in our statute book, of "the king's majesty, his heirs, and successors." in which we may observe, that as the word, "heirs," necessarily implies an inheritance or hereditary right, generally subsisting in the royal person; so the word, "successors," distinctly taken, must imply that this inheritance may sometimes be broke through; or, that there may be a successor, without being the heir, of the king. and this is so extremely reasonable, that without such a power, lodged somewhere, our polity would be very defective. for, let us barely suppose so melancholy a case, as that the heir apparent should be a lunatic, an ideot, or otherwise incapable of reigning: how miserable would the condition of the nation be, if he were also incapable of being set aside!--it is therefore necessary that this power should be lodged somewhere: and yet the inheritance, and regal dignity, would be very precarious indeed, if this power were _expressly_ and _avowedly_ lodged in the hands of the subject only, to be exerted whenever prejudice, caprice, or discontent should happen to take the lead. consequently it can no where be so properly lodged as in the two houses of parliament, by and with the consent of the reigning king; who, it is not to be supposed, will agree to any thing improperly prejudicial to the rights of his own descendants. and therefore in the king, lords, and commons, in parliament assembled, our laws have expressly lodged it. 4. but, fourthly; however the crown maybe limited or transferred, it still retains it's descendible quality, and becomes hereditary in the wearer of it: and hence in our law the king is said never to die, in his political capacity; though, in common with other men, he is subject to mortality in his natural: because immediately upon the natural death of henry, william, or edward, the king survives in his successor; and the right of the crown vests, _eo instanti_, upon his heir; either the _haeres natus_, if the course of descent remains unimpeached, or the _haeres factus_, if the inheritance be under any particular settlement. so that there can be no _interregnum_; but as sir matthew hale[b] observes, the right of sovereignty is fully invested in the successor by the very descent of the crown. and therefore, however acquired, it becomes in him absolutely hereditary, unless by the rules of the limitation it is otherwise ordered and determined. in the same manner as landed estates, to continue our former comparison, are by the law hereditary, or descendible to the heirs of the owner; but still there exists a power, by which the property of those lands may be transferred to another person. if this transfer be made simply and absolutely, the lands will be hereditary in the new owner, and descend to his heirs at law: but if the transfer be clogged with any limitations, conditions, or entails, the lands must descend in that chanel, so limited and prescribed, and no other. [footnote b: 1 hist. p.c. 61.] in these four points consists, as i take it, the constitutional notion of hereditary right to the throne: which will be still farther elucidated, and made clear beyond all dispute, from a short historical view of the successions to the crown of england, the doctrines of our antient lawyers, and the several acts of parliament that have from time to time been made, to create, to declare, to confirm, to limit, or to bar, the hereditary title to the throne. and in the pursuit of this enquiry we shall find, that from the days of egbert, the first sole monarch of this kingdom, even to the present, the four cardinal maxims above mentioned have ever been held the constitutional canons of succession. it is true, this succession, through fraud, or force, or sometimes through necessity, when in hostile times the crown descended on a minor or the like, has been very frequently suspended; but has always at last returned back into the old hereditary chanel, though sometimes a very considerable period has intervened. and, even in those instances where the succession has been violated, the crown has ever been looked upon as hereditary in the wearer of it. of which the usurpers themselves were so sensible, that they for the most part endeavoured to vamp up some feeble shew of a title by descent, in order to amuse the people, while they gained the possession of the kingdom. and, when possession was once gained, they considered it as the purchase or acquisition of a new estate of inheritance, and transmitted or endeavoured to transmit it to their own posterity, by a kind of hereditary right of usurpation. king egbert about the year 800, found himself in possession of the throne of the west saxons, by a long and undisturbed descent from his ancestors of above three hundred years. how his ancestors acquired their title, whether by force, by fraud, by contract, or by election, it matters not much to enquire; and is indeed a point of such high antiquity, as must render all enquiries at best but plausible guesses. his right must be supposed indisputably good, because we know no better. the other kingdoms of the heptarchy he acquired, some by consent, but most by a voluntary submission. and it is an established maxim in civil polity, and the law of nations, that when one country is united to another in such a manner, as that one keeps it's government and states, and the other loses them; the latter entirely assimilates or is melted down in the former, and must adopt it's laws and customs[c]. and in pursuance of this maxim there hath ever been, since the union of the heptarchy in king egbert, a general acquiescence under the hereditary monarchy of the west saxons, through all the united kingdoms. [footnote c: puff. l. of n. and n. b. 8. c. 12. â§. 6.] from egbert to the death of edmund ironside, a period of above two hundred years, the crown descended regularly, through a succession of fifteen princes, without any deviation or interruption; save only that king edred, the uncle of edwy, mounted the throne for about nine years, in the right of his nephew a minor, the times being very troublesome and dangerous. but this was with a view to preserve, and not to destroy, the succession; and accordingly edwy succeeded him. king edmund ironside was obliged, by the hostile irruption of the danes, at first to divide his kingdom with canute, king of denmark; and canute, after his death, seised the whole of it, edmund's sons being driven into foreign countries. here the succession was suspended by actual force, and a new family introduced upon the throne: in whom however this new acquired throne continued hereditary for three reigns; when, upon the death of hardiknute, the antient saxon line was restored in the person of edward the confessor. he was not indeed the true heir to the crown, being the younger brother of king edmund ironside, who had a son edward, sirnamed (from his exile) the outlaw, still living. but this son was then in hungary; and, the english having just shaken off the danish yoke, it was necessary that somebody on the spot should mount the throne; and the confessor was the next of the royal line then in england. on his decease without issue, harold ii usurped the throne, and almost at the same instant came on the norman invasion: the right to the crown being all the time in edgar, sirnamed atheling, (which signifies in the saxon language the first of the blood royal) who was the son of edward the outlaw, and grandson of edmund ironside; or, as matthew paris[d] well expresses the sense of our old constitution, "_edmundus autem latusferreum, rex naturalis de stirpe regum, genuit edwardum; et edwardus genuit edgarum, cui de jure debebatur regnum anglorum_." [footnote d: _a.d._ 1066.] william the norman claimed the crown by virtue of a pretended grant from king edward the confessor; a grant which, if real, was in itself utterly invalid: because it was made, as harold well observed in his reply to william's demand[e], "_absque generali senatus et populi conventu et edicto_;" which also very plainly implies, that it then was generally understood that the king, with consent of the general council, might dispose of the crown and change the line of succession. william's title however was altogether as good as harold's, he being a mere private subject, and an utter stranger to the royal blood. edgar atheling's undoubted right was overwhelmed by the violence of the times; though frequently asserted by the english nobility after the conquest, till such time as he died without issue: but all their attempts proved unsuccessful, and only served the more firmly to establish the crown in the family which had newly acquired it. [footnote e: william of malmsb. _l._ 3.] this conquest then by william of normandy was, like that of canute before, a forcible transfer of the crown of england into a new family: but, the crown being so transferred, all the inherent properties of the crown were with it transferred also. for, the victory obtained at hastings not being[f] a victory over the nation collectively, but only over the person of harold, the only right that the conqueror could pretend to acquire thereby, was the right to possess the crown of england, not to alter the nature of the government. and therefore, as the english laws still remained in force, he must necessarily take the crown subject to those laws, and with all it's inherent properties; the first and principal of which was it's descendibility. here then we must drop our race of saxon kings, at least for a while, and derive our descents from william the conqueror as from a new stock, who acquired by right of war (such as it is, yet still the _dernier resort_ of kings) a strong and undisputed title to the inheritable crown of england. [footnote f: hale, hist. c.l. c. 5. seld. review of tithes, c. 8.] accordingly it descended from him to his sons william ii and henry i. robert, it must be owned, his eldest son, was kept out of possession by the arts and violence of his brethren; who proceeded upon a notion, which prevailed for some time in the law of descents, that when the eldest son was already provided for (as robert was constituted duke of normandy by his father's will) in such a case the next brother was entitled to enjoy the rest of their father's inheritance. but, as he died without issue, henry at last had a good title to the throne, whatever he might have at first. stephen of blois, who succeeded him, was indeed the grandson of the conqueror, by adelicia his daughter, and claimed the throne by a feeble kind of hereditary right; not as being the nearest of the male line, but as the nearest male of the blood royal. the real right was in the empress matilda or maud, the daughter of henry i; the rule of succession being (where women are admitted at all) that the daughter of a son shall be preferred to the son of a daughter. so that stephen was little better than a mere usurper; and the empress maud did not fail to assert her right by the sword: which dispute was attended with various success, and ended at last in a compromise, that stephen should keep the crown, but that henry the son of maud should succeed him; as he afterwards accordingly did. henry, the second of that name, was the undoubted heir of william the conqueror; but he had also another connexion in blood, which endeared him still farther to the english. he was lineally descended from edmund ironside, the last of the saxon race of hereditary kings. for edward the outlaw, the son of edmund ironside, had (besides edgar atheling, who died without issue) a daughter margaret, who was married to malcolm king of scotland; and in her the saxon hereditary right resided. by malcolm she had several children, and among the rest matilda the wife of henry i, who by him had the empress maud, the mother of henry ii. upon which account the saxon line is in our histories frequently said to have been restored in his person: though in reality that right subsisted in the _sons_ of malcolm by queen margaret; king henry's best title being as heir to the conqueror. from henry ii the crown descended to his eldest son richard i, who dying childless, the right vested in his nephew arthur, the son of geoffrey his next brother; but john, the youngest son of king henry, seised the throne; claiming, as appears from his charters, the crown by hereditary right[g]: that is to say, he was next of kin to the deceased king, being his surviving brother; whereas arthur was removed one degree farther, being his brother's son, though by right of representation he stood in the place of his father geoffrey. and however flimzey this title, and those of william rufus and stephen of blois, may appear at this distance to us, after the law of descents hath now been settled for so many centuries, they were sufficient to puzzle the understandings of our brave, but unlettered, ancestors. nor indeed can we wonder at the number of partizans, who espoused the pretensions of king john in particular; since even in the reign of his father, king henry ii, it was a point undetermined[h], whether, even in common inheritances, the child of an elder brother should succeed to the land in right of representation, or the younger surviving brother in right of proximity of blood. nor is it to this day decided in the collateral succession to the fiefs of the empire, whether the order of the stocks, or the proximity of degree shall take place[i]. however, on the death of arthur and his sister eleanor without issue, a clear and indisputable title vested in henry iii the son of john: and from him to richard the second, a succession of six generations, the crown descended in the true hereditary line. under one of which race of princes[k], we find it declared in parliament, "that the law of the crown of england is, and always hath been, that the children of the king of england, whether born in england, or elsewhere, ought to bear the inheritance after the death of their ancestors. which law, our sovereign lord the king, the prelates, earls, and barons, and other great men, together with all the commons, in parliament assembled, do approve and affirm for ever." [footnote g: "_regni angliae; quod nobis jure competit haereditario._" spelm. _hist. r. joh. apud_ wilkins. 354.] [footnote h: glanv. _l._ 7. _c._ 3.] [footnote i: mod. un. hist. xxx. 512.] [footnote k: stat. 25 edw. iii. st. 2.] upon richard the second's resignation of the crown, he having no children, the right resulted to the issue of his grandfather edward iii. that king had many children, besides his eldest, edward the black prince of wales, the father of richard ii: but to avoid confusion i shall only mention three; william his second son, who died without issue; lionel duke of clarence, his third son; and john of gant duke of lancaster, his fourth. by the rules of succession therefore the posterity of lionel duke of clarence were entitled to the throne, upon the resignation of king richard; and had accordingly been declared by the king, many years before, the presumptive heirs of the crown; which declaration was also confirmed in parliament[l]. but henry duke of lancaster, the son of john of gant, having then a large army in the kingdom, the pretence of raising which was to recover his patrimony from the king, and to redress the grievances of the subject, it was impossible for any other title to be asserted with any safety; and he became king under the title of henry iv. but, as sir matthew hale remarks[m], though the people unjustly assisted henry iv in his usurpation of the crown, yet he was not admitted thereto, until he had declared that he claimed, not as a conqueror, (which he very much inclined to do[n]) but as a successor, descended by right line of the blood royal; as appears from the rolls of parliament in those times. and in order to this he set up a shew of two titles: the one upon the pretence of being the first of the blood royal in the intire male line, whereas the duke of clarence left only one daughter philippa; from which female branch, by a marriage with edmond mortimer earl of march, the house of york descended: the other, by reviving an exploded rumour, first propagated by john of gant, that edmond earl of lancaster (to whom henry's mother was heiress) was in reality the elder brother of king edward i; though his parents, on account of his personal deformity, had imposed him on the world for the younger: and therefore henry would be intitled to the crown, either as successor to richard ii, in case the intire male line was allowed a preference to the female; or, even prior to that unfortunate prince, if the crown could descend through a female, while an intire male line was existing. [footnote l: sandford's geneal. hist. 246.] [footnote m: hist. c.l. c. 5.] [footnote n: seld. tit. hon. 1. 3.] however, as in edward the third's time we find the parliament approving and affirming the right of the crown, as before stated, so in the reign of henry iv they actually exerted their right of new-settling the succession to the crown. and this was done by the statute 7 hen. iv. c. 2. whereby it is enacted, "that the inheritance of the crown and realms of england and france, and all other the king's dominions, shall be _set and remain_[o] in the person of our sovereign lord the king, and in the heirs of his body issuing;" and prince henry is declared heir apparent to the crown, to hold to him and the heirs of his body issuing, with remainder to lord thomas, lord john, and lord humphry, the king's sons, and the heirs of their bodies respectively. which is indeed nothing more than the law would have done before, provided henry the fourth had been a rightful king. it however serves to shew that it was then generally understood, that the king and parliament had a right to new-model and regulate the succession to the crown. and we may observe, with what caution and delicacy the parliament then avoided declaring any sentiment of henry's original title. however sir edward coke more than once expressly declares[p], that at the time of passing this act the right of the crown was in the descent from philippa, daughter and heir of lionel duke of clarence. [footnote o: _soit mys et demoerge._] [footnote p: 4 inst. 37, 205.] nevertheless the crown descended regularly from henry iv to his son and grandson henry v and vi; in the latter of whose reigns the house of york asserted their dormant title; and, after imbruing the kingdom in blood and confusion for seven years together, at last established it in the person of edward iv. at his accession to the throne, after a breach of the succession that continued for three descents, and above threescore years, the distinction of a king _de jure_, and a king _de facto_ began to be first taken; in order to indemnify such as had submitted to the late establishment, and to provide for the peace of the kingdom by confirming all honors conferred, and all acts done, by those who were now called the usurpers, not tending to the disherison of the rightful heir. in statute 1 edw. iv. c. 1. the three henrys are stiled, "late kings of england successively in dede, and not of ryght." and, in all the charters which i have met with of king edward, wherever he has occasion to speak of any of the line of lancaster, he calls them "_nuper de facto, et non de jure, reges angliae_." edward iv left two sons and a daughter; the eldest of which sons, king edward v, enjoyed the regal dignity for a very short time, and was then deposed by richard his unnatural uncle; who immediately usurped the royal dignity, having previously insinuated to the populace a suspicion of bastardy in the children of edward iv, to make a shew of some hereditary title: after which he is generally believed to have murdered his two nephews; upon whose death the right of the crown devolved to their sister elizabeth. the tyrannical reign of king richard iii gave occasion to henry earl of richmond to assert his title to the crown. a title the most remote and unaccountable that was ever set up, and which nothing could have given success to, but the universal detestation of the then usurper richard. for, besides that he claimed under a descent from john of gant, whose title was now exploded, the claim (such as it was) was through john earl of somerset, a bastard son, begotten by john of gant upon catherine swinford. it is true, that, by an act of parliament 20 ric. ii, this son was, with others, legitimated and made inheritable to all lands, offices, and dignities, as if he had been born in wedlock: but still, with an express reservation of the crown, "_excepta dignitate regali_[q]." [footnote q: 4 inst. 36.] notwithstanding all this, immediately after the battle of bosworth field, he assumed the regal dignity; the right of the crown then being, as sir edward coke expressly declares[r], in elizabeth, eldest daughter of edward iv: and his possession was established by parliament, held the first year of his reign. in the act for which purpose, the parliament seems to have copied the caution of their predecessors in the reign of henry iv; and therefore (as lord bacon the historian of this reign observes) carefully avoided any recognition of henry vii's right, which indeed was none at all; and the king would not have it by way of new law or ordinance, whereby a right might seem to be created and conferred upon him; and therefore a middle way was rather chosen, by way (as the noble historian expresses it) of _establishment_, and that under covert and indifferent words, "that the inheritance of the crown should _rest_, _remain_, and _abide_ in king henry vii and the heirs of his body:" thereby providing for the future, and at the same time acknowleging his present possession; but not determining either way, whether that possession was _de jure_ or _de facto_ merely. however he soon after married elizabeth of york, the undoubted heiress of the conqueror, and thereby gained (as sir edward coke[s] declares) by much his best title to the crown. whereupon the act made in his favour was so much disregarded, that it never was printed in our statute books. [footnote r: 4 inst. 37.] [footnote s: _ibid._] henry the eighth, the issue of this marriage, succeeded to the crown by clear indisputable hereditary right, and transmitted it to his three children in successive order. but in his reign we at several times find the parliament busy in regulating the succession to the kingdom. and, first, by statute 25 hen. viii. c. 12. which recites the mischiefs, which have and may ensue by disputed titles, because no perfect and substantial provision hath been made by law concerning the succession; and then enacts, that the crown shall be entailed to his majesty, and the sons or heirs males of his body; and in default of such sons to the lady elizabeth (who is declared to be the king's eldest issue female, in exclusion of the lady mary, on account of her supposed illegitimacy by the divorce of her mother queen catherine) and to the lady elizabeth's heirs of her body; and so on from issue female to issue female, and the heirs of their bodies, by course of inheritance according to their ages, _as the crown of england hath been accustomed and ought to go_, in case where there be heirs female of the same: and in default of issue female, then to the king's right heirs for ever. this single statute is an ample proof of all the four positions we at first set out with. but, upon the king's divorce from ann boleyn, this statute was, with regard to the settlement of the crown, repealed by statute 28 hen. viii. c. 7. wherein the lady elizabeth is also, as well as the lady mary, bastardized, and the crown settled on the king's children by queen jane seymour, and his future wives; and, in defect of such children, then with this remarkable remainder, to such persons as the king by letters patent, or last will and testament, should limit and appoint the same. a vast power; but, notwithstanding, as it was regularly vested in him by the supreme legislative authority, it was therefore indisputably valid. but this power was never carried into execution; for by statute 35 hen. viii. c. 1. the king's two daughters are legitimated again, and the crown is limited to prince edward by name, after that to the lady mary, and then to the lady elizabeth, and the heirs of their respective bodies; which succession took effect accordingly, being indeed no other than the usual course of the law, with regard to the descent of the crown. but lest there should remain any doubt in the minds of the people, through this jumble of acts for limiting the succession, by statute 1 mar. p. 2. c. 1. queen mary's hereditary right to the throne is acknowleged and recognized in these words: "the crown of these realms is most lawfully, justly, and rightly _descended_ and come to the queen's highness that now is, being the very, true, and undoubted heir and inheritrix thereof." and again, upon the queen's marriage with philip of spain, in the statute which settles the preliminaries of that match[t], the hereditary right to the crown is thus asserted and declared: "as touching the right of the queen's inheritance in the realm and dominions of england, the children, whether male or female, shall succeed in them, according to the known laws, statutes, and customs of the same." which determination of the parliament, that the succession _shall_ continue in the usual course, seems tacitly to imply a power of new-modelling and altering it, in case the legislature had thought proper. [footnote t: 1 mar. p. 2. c. 2.] on queen elizabeth's accession, her right is recognized in still stronger terms than her sister's; the parliament acknowleging[u], "that the queen's highness is, and in very deed and of most mere right ought to be, by the laws of god, and the laws and statutes of this realm, our most lawful and rightful sovereign liege lady and queen; and that her highness is rightly, lineally, and lawfully descended and come of the blood royal of this realm of england; in and to whose princely person, and to the heirs of her body lawfully to be begotten, after her, the imperial crown and dignity of this realm doth belong." and in the same reign, by statute 13 eliz. c. 1. we find the right of parliament to direct the succession of the crown asserted in the most explicit words. "if any person shall hold, affirm, or maintain that the common laws of this realm, not altered by parliament, ought not to direct the right of the crown of england; or that the queen's majesty, with and by the authority of parliament, is not able to make laws and statutes of sufficient force and validity, to limit and bind the crown of this realm, and the descent, limitation, inheritance, and government thereof;--such person, so holding, affirming, or maintaining, shall during the life of the queen be guilty of high treason; and after her decease shall be guilty of a misdemesnor, and forfeit his goods and chattels." [footnote u: stat. 1 eliz. c. 3.] on the death of queen elizabeth, without issue, the line of henry viii became extinct. it therefore became necessary to recur to the other issue of henry vii, by elizabeth of york his queen: whose eldest daughter margaret having married james iv king of scotland, king james the sixth of scotland, and of england the first, was the lineal descendant from that alliance. so that in his person, as clearly as in henry viii, centered all the claims of different competitors from the conquest downwards, he being indisputably the lineal heir of the conqueror. and, what is still more remarkable, in his person also centered the right of the saxon monarchs, which had been suspended from the conquest till his accession. for, as was formerly observed, margaret the sister of edgar atheling, the daughter of edward the outlaw, and granddaughter of king edmund ironside, was the person in whom the hereditary right of the saxon kings, supposing it not abolished by the conquest, resided. she married malcolm king of scotland; and henry ii, by a descent from matilda their daughter, is generally called the restorer of the saxon line. but it must be remembered, that malcolm by his saxon queen had sons as well as daughters; and that the royal family of scotland from that time downwards were the offspring of malcolm and margaret. of this royal family king james the first was the direct lineal heir, and therefore united in his person every possible claim by hereditary right to the english, as well as scottish throne, being the heir both of egbert and william the conqueror. and it is no wonder that a prince of more learning than wisdom, who could deduce an hereditary title for more than eight hundred years, should easily be taught by the flatterers of the times to believe there was something divine in this right, and that the finger of providence was visible in it's preservation. whereas, though a wise institution, it was clearly a human institution; and the right inherent in him no natural, but a positive right. and in this and no other light was it taken by the english parliament; who by statute 1 jac. i. c. 1. did "recognize and acknowlege, that immediately upon the dissolution and decease of elizabeth late queen of england, the imperial crown thereof did by inherent birthright, and lawful and undoubted succession, descend and come to his most excellent majesty, as being lineally, justly, and lawfully, next and sole heir of the blood royal of this realm." not a word here of any right immediately derived from heaven: which, if it existed any where, must be sought for among the _aborigines_ of the island, the antient britons; among whose princes indeed some have gone to search it for him[w]. [footnote w: elizabeth of york, the mother of queen margaret of scotland, was heiress of the house of mortimer. and mr carte observes, that the house of mortimer, in virtue of it's descent from gladys only sister to lewellin ap jorweth the great, had the true right to the principality of wales. iii. 705.] but, wild and absurd as the doctrine of divine right most undoubtedly is, it is still more astonishing, that when so many human hereditary rights had centered in this king, his son and heir king charles the first should be told by those infamous judges, who pronounced his unparalleled sentence, that he was an elective prince; elected by his people, and therefore accountable to them, in his own proper person, for his conduct. the confusion, instability, and madness, which followed the fatal catastrophe of that pious and unfortunate prince, will be a standing argument in favour of hereditary monarchy to all future ages; as they proved at last to the then deluded people: who, in order to recover that peace and happiness which for twenty years together they had lost, in a solemn parliamentary convention of the states restored the right heir of the crown. and in the proclamation for that purpose, which was drawn up and attended by both houses[x], they declared, "that, according to their duty and allegiance, they did heartily, joyfully, and unanimously acknowlege and proclaim, that immediately upon the decease of our late sovereign lord king charles, the imperial crown of these realms did by inherent birthright and lawful and undoubted succession descend and come to his most excellent majesty charles the second, as being lineally, justly, and lawfully, next heir of the blood royal of this realm: and thereunto they most humbly and faithfully did submit and oblige themselves, their heirs and posterity for ever." [footnote x: com. journ. 8 may, 1660.] thus i think it clearly appears, from the highest authority this nation is acquainted with, that the crown of england hath been ever an hereditary crown; though subject to limitations by parliament. the remainder of this chapter will consist principally of those instances, wherein the parliament has asserted or exercised this right of altering and limiting the succession; a right which, we have seen, was before exercised and asserted in the reigns of henry iv, henry vii, henry viii, queen mary, and queen elizabeth. the first instance, in point of time, is the famous bill of exclusion, which raised such a ferment in the latter end of the reign of king charles the second. it is well known, that the purport of this bill was to have set aside the king's brother and presumptive heir, the duke of york, from the succession, on the score of his being a papist; that it passed the house of commons, but was rejected by the lords; the king having also declared beforehand, that he never would be brought to consent to it. and from this transaction we may collect two things: 1. that the crown was universally acknowleged to be hereditary; and the inheritance indefeasible unless by parliament: else it had been needless to prefer such a bill. 2. that the parliament had a power to have defeated the inheritance: else such a bill had been ineffectual. the commons acknowleged the hereditary right then subsisting; and the lords did not dispute the power, but merely the propriety, of an exclusion. however, as the bill took no effect, king james the second succeeded to the throne of his ancestors; and might have enjoyed it during the remainder of his life, but for his own infatuated conduct, which (with other concurring circumstances) brought on the revolution in 1688. the true ground and principle, upon which that memorable event proceeded, was an entirely new case in politics, which had never before happened in our history; the abdication of the reigning monarch, and the vacancy of the throne thereupon. it was not a defeazance of the right of succession, and a new limitation of the crown, by the king and both houses of parliament: it was the act of the nation alone, upon an apprehension that there was no king in being. for in a full assembly of the lords and commons, met in convention upon this apprehended vacancy, both houses[y] came to this resolution; "that king james the second, having endeavoured to subvert the constitution of the kingdom, by breaking the original contract between king and people; and, by the advice of jesuits and other wicked persons, having violated the fundamental laws; and having withdrawn himself out of this kingdom; has abdicated the government, and that the throne is thereby vacant." thus ended at once, by this sudden and unexpected vacancy of the throne, the old line of succession; which from the conquest had lasted above six hundred years, and from the union of the heptarchy in king egbert almost nine hundred. the facts themselves thus appealed to, the king's endeavours to subvert the constitution by breaking the original contract, his violation of the fundamental laws, and his withdrawing himself out of the kingdom, were evident and notorious: and the consequences drawn from these facts (namely, that they amounted to an abdication of the government; which abdication did not affect only the person of the king himself, but also all his heirs, and rendered the throne absolutely and completely vacant) it belonged to our ancestors to determine. for, whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to. and that these consequences were fairly deduced from these facts, our ancestors have solemnly determined, in a full parliamentary convention representing the whole society. the reasons upon which they decided may be found at large in the parliamentary proceedings of the times; and may be matter of instructive amusement for us to contemplate, as a speculative point of history. but care must be taken not to carry this enquiry farther, than merely for instruction or amusement. the idea, that the consciences of posterity were concerned in the rectitude of their ancestors' decisions, gave birth to those dangerous political heresies, which so long distracted the state, but at length are all happily extinguished. i therefore rather chuse to consider this great political measure, upon the solid footing of authority, than to reason in it's favour from it's justice, moderation, and expedience: because that might imply a right of dissenting or revolting from it, in case we should think it unjust, oppressive, or inexpedient. whereas, our ancestors having most indisputably a competent jurisdiction to decide this great and important question, and having in fact decided it, it is now become our duty at this distance of time to acquiesce in their determination; being born under that establishment which was built upon this foundation, and obliged by every tie, religious as well as civil, to maintain it. [footnote y: com. journ. 7 feb. 1688.] but, while we rest this fundamental transaction, in point of authority, upon grounds the least liable to cavil, we are bound both in justice and gratitude to add, that it was conducted with a temper and moderation which naturally arose from it's equity; that, however it might in some respects go beyond the letter of our antient laws, (the reason of which will more fully appear hereafter[z]) it was agreeable to the spirit of our constitution, and the rights of human nature; and that though in other points (owing to the peculiar circumstances of things and persons) it was not altogether so perfect as might have been wished, yet from thence a new aera commenced, in which the bounds of prerogative and liberty have been better defined, the principles of government more thoroughly examined and understood, and the rights of the subject more explicitly guarded by legal provisions, than in any other period of the english history. in particular, it is worthy observation that the convention, in this their judgment, avoided with great wisdom the wild extremes into which the visionary theories of some zealous republicans would have led them. they held that this misconduct of king james amounted to an _endeavour_ to subvert the constitution, and not to an actual subversion, or total dissolution of the government, according to the principles of mr locke[a]: which would have reduced the society almost to a state of nature; would have levelled all distinctions of honour, rank, offices, and property; would have annihilated the sovereign power, and in consequence have repealed all positive laws; and would have left the people at liberty to have erected a new system of state upon a new foundation of polity. they therefore very prudently voted it to amount to no more than an abdication of the government, and a consequent vacancy of the throne; whereby the government was allowed to subsist, though the executive magistrate was gone, and the kingly office to remain, though king james was no longer king. and thus the constitution was kept intire; which upon every sound principle of government must otherwise have fallen to pieces, had so principal and constituent a part as the royal authority been abolished, or even suspended. [footnote z: see chapter 7.] [footnote a: on gov. p. 2. c. 19.] this single postulatum, the vacancy of the throne, being once established, the rest that was then done followed almost of course. for, if the throne be at any time vacant (which may happen by other means besides that of abdication; as if all the bloodroyal should fail, without any successor appointed by parliament;) if, i say, a vacancy by any means whatsoever should happen, the right of disposing of this vacancy seems naturally to result to the lords and commons, the trustees and representatives of the nation. for there are no other hands in which it can so properly be intrusted; and there is a necessity of it's being intrusted somewhere, else the whole frame of government must be dissolved and perish. the lords and commons having therefore determined this main fundamental article, that there was a vacancy of the throne, they proceeded to fill up that vacancy in such manner as they judged the most proper. and this was done by their declaration of 12 february 1688[b], in the following manner: "that william and mary, prince and princess of orange, be, and be declared king and queen, to hold the crown and royal dignity during their lives, and the life of the survivor of them; and that the sole and full exercise of the regal power be only in, and executed by, the said prince of orange, in the names of the said prince and princess, during their joint lives; and after their deceases the said crown and royal dignity to be to the heirs of the body of the said princess; and for default of such issue to the princess anne of denmark and the heirs of her body; and for default of such issue to the heirs of the body of the said prince of orange." [footnote b: com. journ. 12 feb. 1688.] perhaps, upon the principles before established, the convention might (if they pleased) have vested the regal dignity in a family intirely new, and strangers to the royal blood: but they were too well acquainted with the benefits of hereditary succession, and the influence which it has by custom over the minds of the people, to depart any farther from the antient line than temporary necessity and self-preservation required. they therefore settled the crown, first on king william and queen mary, king james's eldest daughter, for their _joint_ lives; then on the survivor of them; and then on the issue of queen mary: upon failure of such issue, it was limited to the princess anne, king james's second daughter, and her issue; and lastly, on failure of that, to the issue of king william, who was the grandson of charles the first, and nephew as well as son in law of king james the second, being the son of mary his only sister. this settlement included all the protestant posterity of king charles i, except such other issue as king james might at any time have, which was totally omitted through fear of a popish succession. and this order of succession took effect accordingly. these three princes therefore, king william, queen mary, and queen anne, did not take the crown by hereditary right or _descent_, but by way of donation or _purchase_, as the lawyers call it; by which they mean any method of acquiring an estate otherwise than by descent. the new settlement did not merely consist in excluding king james, and the person pretended to be prince of wales, and then suffering the crown to descend in the old hereditary chanel: for the usual course of descent was in some instances broken through; and yet the convention still kept it in their eye, and paid a great, though not total, regard to it. let us see how the succession would have stood, if no abdication had happened, and king james had left no other issue than his two daughters queen mary and queen anne. it would have stood thus: queen mary and her issue; queen anne and her issue; king william and his issue. but we may remember, that queen mary was only nominally queen, jointly with her husband king william, who alone had the regal power; and king william was absolutely preferred to queen anne, though his issue was postponed to hers. clearly therefore these princes were successively in possession of the crown by a title different from the usual course of descent. it was towards the end of king william's reign, when all hopes of any surviving issue from any of these princes died with the duke of glocester, that the king and parliament thought it necessary again to exert their power of limiting and appointing the succession, in order to prevent another vacancy of the throne; which must have ensued upon their deaths, as no farther provision was made at the revolution, than for the issue of king william, queen mary, and queen anne. the parliament had previously by the statute of 1 w. & m. st. 2. c. 2. enacted, that every person who should be reconciled to, or hold communion with, the see of rome, should profess the popish religion, or should marry a papist, should be excluded and for ever incapable to inherit, possess, or enjoy, the crown; and that in such case the people should be absolved from their allegiance, and the crown should descend to such persons, being protestants, as would have inherited the same, in case the person so reconciled, holding communion, professing, or marrying, were naturally dead. to act therefore consistently with themselves, and at the same time pay as much regard to the old hereditary line as their former resolutions would admit, they turned their eyes on the princess sophia, electress and duchess dowager of hanover, the most accomplished princess of her age[c]. for, upon the impending extinction of the protestant posterity of charles the first, the old law of regal descent directed them to recur to the descendants of james the first; and the princess sophia, being the daughter of elizabeth queen of bohemia, who was the youngest daughter of james the first, was the nearest of the antient blood royal, who was not incapacitated by professing the popish religion. on her therefore, and the heirs of her body, being protestants, the remainder of the crown, expectant on the death of king william and queen anne without issue, was settled by statute 12 & 13 w. iii. c. 2. and at the same time it was enacted, that whosoever should hereafter come to the possession of the crown, should join in the communion of the church of england as by law established. [footnote c: sandford, in his genealogical history, published _a.d._ 1677, speaking (page 535) of the princesses elizabeth, louisa, and sophia, daughters of the queen of bohemia, says, the first was reputed the most learned, the second the greatest artist, and the last one of the most accomplished ladies in europe.] this is the last limitation of the crown that has been made by parliament: and these several actual limitations, from the time of henry iv to the present, do clearly prove the power of the king and parliament to new-model or alter the succession. and indeed it is now again made highly penal to dispute it: for by the statute 6 ann. c. 7. it is enacted, that if any person maliciously, advisedly, and directly, shall maintain by writing or printing, that the kings of this realm with the authority of parliament are not able to make laws to bind the crown and the descent thereof, he shall be guilty of high treason; or if he maintains the same by only preaching, teaching, or advised speaking, he shall incur the penalties of a praemunire. the princess sophia dying before queen anne, the inheritance thus limited descended on her son and heir king george the first; and, having on the death of the queen taken effect in his person, from him it descended to his late majesty king george the second; and from him to his grandson and heir, our present gracious sovereign, king george the third. hence it is easy to collect, that the title to the crown is at present hereditary, though not quite so absolutely hereditary as formerly; and the common stock or ancestor, from whom the descent must be derived, is also different. formerly the common stock was king egbert; then william the conqueror; afterwards in james the first's time the two common stocks united, and so continued till the vacancy of the throne in 1688: now it is the princess sophia, in whom the inheritance was vested by the new king and parliament. formerly the descent was absolute, and the crown went to the next heir without any restriction: but now, upon the new settlement, the inheritance is conditional, being limited to such heirs only, of the body of the princess sophia, as are protestant members of the church of england, and are married to none but protestants. and in this due medium consists, i apprehend, the true constitutional notion of the right of succession to the imperial crown of these kingdoms. the extremes, between which it steers, are each of them equally destructive of those ends for which societies were formed and are kept on foot. where the magistrate, upon every succession, is elected by the people, and may by the express provision of the laws be deposed (if not punished) by his subjects, this may sound like the perfection of liberty, and look well enough when delineated on paper; but in practice will be ever productive of tumult, contention, and anarchy. and, on the other hand, divine indefeasible hereditary right, when coupled with the doctrine of unlimited passive obedience, is surely of all constitutions the most thoroughly slavish and dreadful. but when such an hereditary right, as our laws have created and vested in the royal stock, is closely interwoven with those liberties, which, we have seen in a former chapter, are equally the inheritance of the subject; this union will form a constitution, in theory the most beautiful of any, in practice the most approved, and, i trust, in duration the most permanent. it was the duty of an expounder of our laws to lay this constitution before the student in it's true and genuine light: it is the duty of every good englishman to understand, to revere, to defend it. chapter the fourth. of the king's royal family. the first and most considerable branch of the king's royal family, regarded by the laws of england, is the queen. the queen of england is either queen _regent_, queen _consort_, or queen _dowager_. the queen _regent_, _regnant_, or _sovereign_, is she who holds the crown in her own right; as the first (and perhaps the second) queen mary, queen elizabeth, and queen anne; and such a one has the same powers, prerogatives, rights, dignities, and duties, as if she had been a king. this was observed in the entrance of the last chapter, and is expressly declared by statute 1 mar. i. st. 3. c. 1. but the queen _consort_ is the wife of the reigning king; and she by virtue of her marriage is participant of divers prerogatives above other women[a]. [footnote a: finch. l. 86.] and, first, she is a public person, exempt and distinct from the king; and not, like other married women, so closely connected as to have lost all legal or separate existence so long as the marriage continues. for the queen is of ability to purchase lands, and to convey them, to make leases, to grant copyholds, and do other acts of ownership, without the concurrence of her lord; which no other married woman can do[b]: a privilege as old as the saxon aera[c]. she is also capable of taking a grant from the king, which no other wife is from her husband; and in this particular she agrees with the _augusta_, or _piissima regina conjux divi imperatoris_ of the roman laws; who, according to justinian[d], was equally capable of making a grant to, and receiving one from, the emperor. the queen of england hath separate courts and officers distinct from the king's, not only in matters of ceremony, but even of law; and her attorney and solicitor general are intitled to a place within the bar of his majesty's courts, together with the king's counsel[e]. she may also sue and be sued alone, without joining her husband. she may also have a separate property in goods as well as lands, and has a right to dispose of them by will. in short, she is in all legal proceedings looked upon as a feme sole, and not as a feme covert; as a single, not as a married woman[f]. for which the reason given by sir edward coke is this: because the wisdom of the common law would not have the king (whose continual care and study is for the public, and _circa ardua regni_) to be troubled and disquieted on account of his wife's domestic affairs; and therefore it vests in the queen a power of transacting her own concerns, without the intervention of the king, as if she was an unmarried woman. [footnote b: 4 rep. 23.] [footnote c: seld. _jan. angl._ 1. 42.] [footnote d: _cod._ 5. 16. 26.] [footnote e: selden tit. hon. 1. 6. 7.] [footnote f: finch. l. 86. co. litt. 133.] the queen hath also many exemptions, and minute prerogatives. for instance: she pays no toll[g]; nor is she liable to any amercement in any court[h]. but in general, unless where the law has expressly declared her exempted, she is upon the same footing with other subjects; being to all intents and purposes the king's subject, and not his equal: in like manner as, in the imperial law, "_augusta legibus soluta non est_[i]." [footnote g: co. litt. 133.] [footnote h: finch. l. 185.] [footnote i: _ff._ 1. 3. 31.] the queen hath also some pecuniary advantages, which form her a distinct revenue: as, in the first place, she is intitled to an antient perquisite called queen-gold or _aurum reginae_; which is a royal revenue, belonging to every queen consort during her marriage with the king, and due from every person who hath made a voluntary offering or fine to the king, amounting to ten marks or upwards, for and in consideration of any privileges, grants, licences, pardons, or other matter of royal favour conferred upon him by the king: and it is due in the proportion of one tenth part more, over and above the intire offering or fine made to the king; and becomes an actual debt of record to the queen's majesty by the mere recording the fine[k]. as, if an hundred marks of silver be given to the king for liberty to take in mortmain, or to have a fair, market, park, chase, or free warren; there the queen is intitled to ten marks in silver, or (what was formerly an equivalent denomination) to one mark in gold, by the name of queen-gold, or _aurum reginae_[l]. but no such payment is due for any aids or subsidies granted to the king in parliament or convocation; nor for fines imposed by courts on offenders, against their will; nor for voluntary presents to the king, without any consideration moving from him to the subject; nor for any sale or contract whereby the present revenues or possessions of the crown are granted away or diminished[m]. [footnote k: pryn. _aur. reg._ 2.] [footnote l: 12 rep. 21. 4 inst. 358.] [footnote m: _ibid._ pryn. 6. madox. hist. exch. 242.] the revenue of our antient queens, before and soon after the conquest, seems to have consisted in certain reservations or rents out of the demesne lands of the crown, which were expressly appropriated to her majesty, distinct from the king. it is frequent in domesday-book, after specifying the rent due to the crown, to add likewise the quantity of gold or other renders reserved to the queen[n]. these were frequently appropriated to particular purposes; to buy wool for her majesty's use[o], to purchase oyl for her lamps[p], or to furnish her attire from head to foot[q], which was frequently very costly, as one single robe in the fifth year of henry ii stood the city of london in upwards of fourscore pounds[r]. a practice somewhat similar to that of the eastern countries, where whole cities and provinces were specifically assigned to purchase particular parts of the queen's apparel[s]. and, for a farther addition to her income, this duty of queen-gold is supposed to have been originally granted; those matters of grace and favour, out of which it arose, being frequently obtained from the crown by the powerful intercession of the queen. there are traces of it's payment, though obscure ones, in the book of domesday and in the great pipe-roll of henry the first[t]. in the reign of henry the second the manner of collecting it appears to have been well understood, and it forms a distinct head in the antient dialogue of the exchequer[u] written in the time of that prince, and usually attributed to gervase of tilbury. from that time downwards it was regularly claimed and enjoyed by all the queen consorts of england till the death of henry viii; though after the accession of the tudor family the collecting of it seems to have been much neglected: and, there being no queen consort afterwards till the accession of james i, a period of near sixty years, it's very nature and quantity became then a matter of doubt: and, being referred by the king to his then chief justices and chief baron, their report of it was so very unfavorable[w], that queen anne (though she claimed it) yet never thought proper to exact it. in 1635, 11 car. i, a time fertile of expedients for raising money upon dormant precedents in our old records (of which ship-money was a fatal instance) the king, at the petition of his queen henrietta maria, issued out his writ for levying it; but afterwards purchased it of his consort at the price of ten thousand pounds; finding it, perhaps, too trifling and troublesome to levy. and when afterwards, at the restoration, by the abolition of the military tenures, and the fines that were consequent upon them, the little that legally remained of this revenue was reduced to almost nothing at all, in vain did mr prynne, by a treatise which does honour to his abilities as a painful and judicious antiquarian, endeavour to excite queen catherine to revive this antiquated claim. [footnote n: _bedefordscire. maner. lestone redd. per annum xxii lib. &c: ad opus reginae ii uncias auri.----herefordscire. in lene, &c, consuetud. ut praepositus manerii veniente domina sua (regina) in maner. praesentaret ei xviii oras denar. ut esset ipsa laeto animo._ pryn. append. to _aur. reg._ 2, 3.] [footnote o: _causa coadunandi lanam reginae._ domesd. _ibid._] [footnote p: _civitas lundon. pro oleo ad lampad. reginae._ _mag. rot. pip. temp. hen. ii. ibid._] [footnote q: _vicecomes berkescire, xvi l. pro cappa reginae._ (_mag. rot. pip. 19--22 hen. ii. ibid._) _civitas lund. cordubanario reginae xx s._ _mag. rot. 2 hen. ii._ madox hist. exch. 419.] [footnote r: _pro roba ad opus reginae, quater xx l. & vi s. & viii d._ _mag. rot. 5 hen. ii. ibid._ 250.] [footnote s: _solere aiunt barbaros reges persarum ac syrorum--uxoribus civitates attribuere, hoc modo; haec civitas mulieri redimiculum praebeat, haec in collum, haec in crines, &c._ _cic. in verrem._ _lib._ 3. _c._ 33.] [footnote t: see madox _disceptat. epistolar._ 74. pryn. _aur. regin._ append. 5.] [footnote u: _lib._ 2. _c._ 26.] [footnote w: mr prynne, with some appearance of reason, insinuates, that their researches were very superficial. _aur. reg._ 125.] another antient perquisite belonging to the queen consort, mentioned by all our old writers[x], and, therefore only, worthy notice, is this: that on the taking of a whale on the coasts, which is a royal fish, it shall be divided between the king and queen; the head only being the king's property, and the tail of it the queen's. "_de sturgione observetur, quod rex illum habebit integrum: de balena vero sufficit, si rex habeat caput, et regina caudam._" the reason of this whimsical division, as assigned by our antient records[y], was, to furnish the queen's wardrobe with whalebone. [footnote x: bracton, _l._ 3. _c._ 3. britton, _c._ 17. fleta, _l._ 1. _c._ 45 & 46.] [footnote y: pryn. _aur. reg._ 127.] but farther: though the queen is in all respects a subject, yet, in point of the security of her life and person, she is put on the same footing with the king. it is equally treason (by the statute 25 edw. iii.) to compass or imagine the death of our lady the king's companion, as of the king himself: and to violate, or defile, the queen consort, amounts to the same high crime; as well in the person committing the fact, as in the queen herself, if consenting. a law of henry the eighth[z] made it treason also for any woman, who was not a virgin, to marry the king without informing him thereof. but this law was soon after repealed; it trespassing too strongly, as well on natural justice, as female modesty. if however the queen be accused of any species of treason, she shall (whether consort or dowager) be tried by the house of peers, as queen ann boleyn was in 28 hen. viii. [footnote z: stat. 33 hen. viii. c. 21.] the husband of a queen regnant, as prince george of denmark was to queen anne, is her subject; and may be guilty of high treason against her: but, in the instance of conjugal fidelity, he is not subjected to the same penal restrictions. for which the reason seems to be, that, if a queen consort is unfaithful to the royal bed, this may debase or bastardize the heirs to the crown; but no such danger can be consequent on the infidelity of the husband to a queen regnant. a queen _dowager_ is the widow of the king, and as such enjoys most of the privileges belonging to her as queen consort. but it is not high treason to conspire her death; or to violate her chastity, for the same reason as was before alleged, because the succession to the crown is not thereby endangered. yet still, _pro dignitate regali_, no man can marry a queen dowager without special licence from the king, on pain of forfeiting his lands and goods. this sir edward coke[a] tells us was enacted in parliament in 6 hen. iv, though the statute be not in print. but she, though an alien born, shall still be intitled to dower after the king's demise, which no other alien is[b]. a queen dowager, when married again to a subject, doth not lose her regal dignity, as peeresses dowager do their peerage when they marry commoners. for katherine, queen dowager of henry v, though she married a private gentleman, owen ap meredith ap theodore, commonly called owen tudor; yet, by the name of katherine queen of england, maintained an action against the bishop of carlisle. and so the queen of navarre marrying with edmond, brother to king edward the first, maintained an action of dower by the name of queen of navarre[c]. [footnote a: 2 inst. 18.] [footnote b: co. litt. 31 _b._] [footnote c: 2 inst. 50.] the prince of wales, or heir apparent to the crown, and also his royal consort, and the princess royal, or eldest daughter of the king, are likewise peculiarly regarded by the laws. for, by statute 25 edw. iii, to compass or conspire the death of the former, or to violate the chastity of either of the latter, are as much high treason, as to conspire the death of the king, or violate the chastity of the queen. and this upon the same reason, as was before given; because the prince of wales is next in succession to the crown, and to violate his wife might taint the blood royal with bastardy: and the eldest daughter of the king is also alone inheritable to the crown, in failure of issue male, and therefore more respected by the laws than any of her younger sisters; insomuch that upon this, united with other (feodal) principles, while our military tenures were in force, the king might levy an aid for marrying his eldest daughter, and her only. the heir apparent to the crown is usually made prince of wales and earl of chester, by special creation, and investiture; but, being the king's eldest son, he is by inheritance duke of cornwall, without any new creation[d]. [footnote d: 8 rep. 1. seld. titl. of hon. 2. 5.] the younger sons and daughters of the king, who are not in the immediate line of succession, are little farther regarded by the laws, than to give them precedence before all peers and public officers as well ecclesiastical as temporal. this is done by the statute 31 hen. viii. c. 10. which enacts that no person, except the king's children, shall presume to sit or have place at the side of the cloth of estate in the parliament chamber; and that certain great officers therein named shall have precedence above all dukes, except only such as shall happen to be the king's son, brother, uncle, nephew (which sir edward coke[e] explains to signify grandson or _nepos_) or brother's or sister's son. and in 1718, upon a question referred to all the judges by king george i, it was resolved by the opinion of ten against the other two, that the education and care of all the king's grandchildren while minors, and the care and approbation of their marriages, when grown up, did belong of right to his majesty as king of this realm, during their father's life[f]. and this may suffice for the notice, taken by law, of his majesty's royal family. [footnote e: 4 inst. 362.] [footnote f: fortesc. al. 401-440.] chapter the fifth. of the councils belonging to the king. the third point of view, in which we are to consider the king, is with regard to his councils. for, in order to assist him in the discharge of his duties, the maintenance of his dignity, and the exertion of his prerogative, the law hath assigned him a diversity of councils to advise with. 1. the first of these is the high court of parliament, whereof we have already treated at large. 2. secondly, the peers of the realm are by their birth hereditary counsellors of the crown, and may be called together by the king to impart their advice in all matters of importance to the realm, either in time of parliament, or, which hath been their principal use, when there is no parliament in being[a]. accordingly bracton[b], speaking of the nobility of his time, says they might properly be called "_consules, a consulendo; reges enim tales sibi associant ad consulendum_." and in our law books[c] it is laid down, that peers are created for two reasons; 1. _ad consulendum_, 2. _ad defendendum regem_: for which reasons the law gives them certain great and high privileges; such as freedom from arrests, &c, even when no parliament is sitting: because the law intends, that they are always assisting the king with their counsel for the commonwealth; or keeping the realm in safety by their prowess and valour. [footnote a: co. litt. 110.] [footnote b: _l._ 1. _c._ 8.] [footnote c: 7 rep. 34. 9 rep. 49. 12 rep. 96.] instances of conventions of the peers, to advise the king, have been in former times very frequent; though now fallen into disuse, by reason of the more regular meetings of parliament. sir edward coke[d] gives us an extract of a record, 5 hen. iv, concerning an exchange of lands between the king and the earl of northumberland, wherein the value of each was agreed to be settled by advice of parliament (if any should be called before the feast of st lucia) or otherwise by advice of the grand council (of peers) which the king promises to assemble before the said feast, in case no parliament shall be called. many other instances of this kind of meeting are to be found under our antient kings: though the formal method of convoking them had been so long left off, that when king charles i in 1640 issued out writs under the great seal to call a great council of all the peers of england to meet and attend his majesty at york, previous to the meeting of the long parliament, the earl of clarendon[e] mentions it as a new invention, not before heard of; that is, as he explains himself, so old, that it had not been practiced in some hundreds of years. but, though there had not so long before been an instance, nor has there been any since, of assembling them in so solemn a manner, yet, in cases of emergency, our princes have at several times thought proper to call for and consult as many of the nobility as could easily be got together: as was particularly the case with king james the second, after the landing of the prince of orange; and with the prince of orange himself, before he called that convention parliament, which afterwards called him to the throne. [footnote d: 1 inst. 110.] [footnote e: hist. b. 2.] besides this general meeting, it is usually looked upon to be the right of each particular peer of the realm, to demand an audience of the king, and to lay before him, with decency and respect, such matters as he shall judge of importance to the public weal. and therefore, in the reign of edward ii, it was made an article of impeachment in parliament against the two hugh spencers, father and son, for which they were banished the kingdom, "that they by their evil covin would not suffer the great men of the realm, the king's good counsellors, to speak with the king, or to come near him; but only in the presence and hearing of the said hugh the father and hugh the son, or one of them, and at their will, and according to such things as pleased them[f]." [footnote f: 4 inst. 53.] 3. a third council belonging the king, are, according to sir edward coke[g], his judges of the courts of law, for law matters. and this appears frequently in our statutes, particularly 14 ed. iii. c. 5. and in other books of law. so that when the king's council is mentioned generally, it must be defined, particularized, and understood, _secundum subjectam materiam_; and, if the subject be of a legal nature, then by the king's council is understood his council for matters of law; namely, his judges. therefore when by statute 16 ric. ii. c. 5. it was made a high offence to import into this kingdom any papal bulles, or other processes from rome; and it was enacted, that the offenders should be attached by their bodies, and brought before the king and his _council_ to answer for such offence; here, by the expression of king's _council_, were understood the king's judges of his courts of justice, the subject matter being legal: this being the general way of interpreting the word, _council_[h]. [footnote g: 1 inst. 110.] [footnote h: 3 inst. 125.] 4. but the principal council belonging to the king is his privy council, which is generally called, by way of eminence, _the council_. and this, according to sir edward coke's description of it[i], is a noble, honorable, and reverend assembly, of the king and such as he wills to be of his privy council, in the king's court or palace. the king's will is the sole constituent of a privy counsellor; and this also regulates their number, which of antient time was twelve or thereabouts. afterwards it increased to so large a number, that it was found inconvenient for secresy and dispatch; and therefore king charles the second in 1679 limited it to thirty: whereof fifteen were to be the principal officers of state, and those to be counsellors, _virtute officii_; and the other fifteen were composed of ten lords and five commoners of the king's choosing[k]. but since that time the number has been much augmented, and now continues indefinite. at the same time also, the antient office of lord president of the council was revived in the person of anthony earl of shaftsbury; an officer, that by the statute of 31 hen. viii. c. 10. has precedence next after the lord chancellor and lord treasurer. [footnote i: 4 inst. 53.] [footnote k: temple's mem. part 3.] privy counsellors are _made_ by the king's nomination, without either patent or grant; and, on taking the necessary oaths, they become immediately privy counsellors during the life of the king that chooses them, but subject to removal at his discretion. the _duty_ of a privy counsellor appears from the oath of office[l], which consists of seven articles: 1. to advise the king according to the best of his cunning and discretion. 2. to advise for the king's honour and good of the public, without partiality through affection, love, meed, doubt, or dread. 3. to keep the king's counsel secret. 4. to avoid corruption. 5. to help and strengthen the execution of what shall be there resolved. 6. to withstand all persons who would attempt the contrary. and, lastly, in general, 7. to observe, keep, and do all that a good and true counsellor ought to do to his sovereign lord. [footnote l: 4 inst. 54.] the _power_ of the privy council is to enquire into all offences against the government, and to commit the offenders into custody, in order to take their trial in some of the courts of law. but their jurisdiction is only to enquire, and not to punish: and the persons committed by them are entitled to their _habeas corpus_ by statute 16 car. i. c. 10. as much as if committed by an ordinary justice of the peace. and, by the same statute, the court of starchamber, and the court of requests, both of which consisted of privy counsellors, were dissolved; and it was declared illegal for them to take cognizance of any matter of property, belonging to the subjects of this kingdom. but, in plantation or admiralty causes, which arise out of the jurisdiction of this kingdom, and in matters of lunacy and ideocy (being a special flower of the prerogative) with regard to these, although they may eventually involve questions of extensive property, the privy council continues to have cognizance, being the court of appeal in such causes: or, rather, the appeal lies to the king's majesty himself, assisted by his privy council. as to the _qualifications_ of members to sit this board: any natural born subject of england is capable of being a member of the privy council; taking the proper oaths for security of the government, and the test for security of the church. but, in order to prevent any persons under foreign attachments from insinuating themselves into this important trust, as happened in the reign of king william in many instances, it is enacted by the act of settlement[m], that no person born out of the dominions of the crown of england, unless born of english parents, even though naturalized by parliament, shall be capable of being of the privy council. [footnote m: stat. 12. & 13 w. iii. c. 2.] the _privileges_ of privy counsellors, as such, consist principally in the security which the law has given them against attempts and conspiracies to destroy their lives. for, by statute 3 hen. vii. c. 14. if any of the king's servants of his houshold, conspire or imagine to take away the life of a privy counsellor, it is felony, though nothing be done upon it. and the reason of making this statute, sir edward coke[n] tells us, was because such servants have greater and readier means, either by night or by day, to destroy such as be of great authority, and near about the king: and such a conspiracy was, just before this parliament, made by some of king henry the seventh's houshold servants, and great mischief was like to have ensued thereupon. this extends only to the king's menial servants. but the statute 9 ann. c. 16. goes farther, and enacts, that _any persons_ that shall unlawfully attempt to kill, or shall unlawfully assault, and strike, or wound, any privy counsellor in the execution of his office, shall be felons, and suffer death as such. this statute was made upon the daring attempt of the sieur guiscard, who stabbed mr harley, afterwards earl of oxford, with a penknife, when under examination for high crimes in a committee of the privy council. [footnote n: 3 inst. 38.] the _dissolution_ of the privy council depends upon the king's pleasure; and he may, whenever he thinks proper, discharge any particular member, or the whole of it, and appoint another. by the common law also it was dissolved _ipso facto_ by the king's demise; as deriving all it's authority from him. but now, to prevent the inconveniences of having no council in being at the accession of a new prince, it is enacted by statute 6 ann. c. 7. that the privy council shall continue for six months after the demise of the crown, unless sooner determined by the successor. chapter the sixth. of the king's duties. i proceed next to the duties, incumbent on the king by our constitution; in consideration of which duties his dignity and prerogative are established by the laws of the land: it being a maxim in the law, that protection and subjection are reciprocal[a]. and these reciprocal duties are what, i apprehend, were meant by the convention in 1688, when they declared that king james had broken the _original contract_ between king and people. but however, as the terms of that original contract were in some measure disputed, being alleged to exist principally in theory, and to be only deducible by reason and the rules of natural law; in which deduction different understandings might very considerably differ; it was, after the revolution, judged proper to declare these duties expressly; and to reduce that contract to a plain certainty. so that, whatever doubts might be formerly raised by weak and scrupulous minds about the existence of such an original contract, they must now entirely cease; especially with regard to every prince, who has reigned since the year 1688. [footnote a: 7 rep. 5.] the principal duty of the king is, to govern his people according to law. _nec regibus infinita aut libera potestas_, was the constitution of our german ancestors on the continent[b]. and this is not only consonant to the principles of nature, of liberty, of reason, and of society, but has always been esteemed an express part of the common law of england, even when prerogative was at the highest. "the king," saith bracton[c], who wrote under henry iii, "ought not to be subject to man, but to god, and to the law; for the law maketh the king. let the king therefore render to the law, what the law has invested in him with regard to others; dominion, and power: for he is not truly king, where will and pleasure rules, and not the law." and again[d]; "the king also hath a superior, namely god, and also the law, by which he was made a king." thus bracton: and fortescue also[e], having first well distinguished between a monarchy absolutely and despotically regal, which is introduced by conquest and violence, and a political or civil monarchy, which arises from mutual consent; (of which last species he asserts the government of england to be) immediately lays it down as a principle, that "the king of england must rule his people according to the decrees of the laws thereof: insomuch that he is bound by an oath at his coronation to the observance and keeping of his own laws." but, to obviate all doubts and difficulties concerning this matter, it is expressly declared by statute 12 & 13 w. iii. c. 2. that "the laws of england are the birthright of the people thereof; and all the kings and queens who shall ascend the throne of this realm ought to administer the government of the same according to the said laws; and all their officers and ministers ought to serve them respectively according to the same: and therefore all the laws and statutes of this realm, for securing the established religion, and the rights and liberties of the people thereof, and all other laws and statutes of the same now in force, are by his majesty, by and with the advice and consent of the lords spiritual and temporal and commons, and by authority of the same, ratified and confirmed accordingly." [footnote b: _tac. de m.g._ _c._ 7.] [footnote c: _l._ 1. _c._ 8.] [footnote d: _l._ 2. _c._ 16. â§. 3.] [footnote e: _c._ 9. & 34.] and, as to the terms of the original contract between king and people, these i apprehend to be now couched in the coronation oath, which by the statute 1 w. & m. st. 1. c. 6. is to be administred to every king and queen, who shall succeed to the imperial crown of these realms, by one of the archbishops or bishops of the realm, in the presence of all the people; who on their parts do reciprocally take the oath of allegiance to the crown. this coronation oath is conceived in the following terms: "_the archbishop or bishop shall say_, will you solemnly promise and swear to govern the people of this kingdom of england, and the dominions thereto belonging, according to the statutes in parliament agreed on, and the laws and customs of the same?--_the king or queen shall say_, i solemnly promise so to do. "_archbishop or bishop._ will you to your power cause law and justice, in mercy, to be executed in all your judgments?--_king or queen._ i will. "_archbishop or bishop._ will you to the utmost of your power maintain the laws of god, the true profession of the gospel, and the protestant reformed religion established by the law? and will you preserve unto the bishops and clergy of this realm, and to the churches committed to their charge, all such rights and privileges as by law do or shall appertain unto them, or any of them?--_king or queen._ all this i promise to do. "_after this the king or queen, laying his or her hand upon the holy gospels, shall say_, the things which i have here before promised i will perform and keep: so help me god. _and then shall kiss the book._" this is the form of the coronation oath, as it is now prescribed by our laws: the principal articles of which appear to be at least as antient as the mirror of justices[f], and even as the time of bracton[g]: but the wording of it was changed at the revolution, because (as the statute alleges) the oath itself had been framed in doubtful words and expressions, with relation to antient laws and constitutions at this time unknown[h]. however, in what form soever it be conceived, this is most indisputably a fundamental and original express contract; though doubtless the duty of protection is impliedly as much incumbent on the sovereign before coronation as after: in the same manner as allegiance to the king becomes the duty of the subject immediately on the descent of the crown, before he has taken the oath of allegiance, or whether he ever takes it at all. this reciprocal duty of the subject will be considered in it's proper place. at present we are only to observe, that in the king's part of this original contract are expressed all the duties that a monarch can owe to his people; viz. to govern according to law: to execute judgment in mercy: and to maintain the established religion. [footnote f: _cap._ 1. â§. 2.] [footnote g: _l._ 3. _tr._ 1. _c._ 9.] [footnote h: in the old folio abridgment of the statutes, printed by lettou and machlinia in the reign of edward iv, (_penes me_) there is preserved a copy of the old coronation oath; which, as the book is extremely scarce, i will here transcribe. _ceo est le serement que le roy jurre a soun coronement: que il gardera et meintenera lez droitez et lez franchisez de seynt esglise grauntez auncienment dez droitez roys christiens dengletere, et quil gardera toutez sez terrez honoures et dignitees droiturelx et franks del coron du roialme dengletere en tout maner dentierte sanz null maner damenusement, et lez droitez dispergez dilapidez ou perduz de la corone a soun poiair reappeller en launcien estate, et quil gardera le peas de seynt esglise et al clergie et al people de bon accorde, et quil face faire en toutez sez jugementez owel et droit justice oue discrecion et misericorde, et quil grauntera a tenure lez leyes et custumez du roialme, et a soun poiair lez face garder et affermer que lez gentez du people avont faitez et esliez, et les malveys leyz et custumes de tout oustera, et ferme peas et establie al people de soun roialme en ceo garde esgardera a soun poiair: come dieu luy aide._ _tit. sacramentum regis. fol. m. ij._] chapter the seventh. of the king's prerogative. it was observed in a former chapter[a], that one of the principal bulwarks of civil liberty, or (in other words) of the british constitution, was the limitation of the king's prerogative by bounds so certain and notorious, that it is impossible he should ever exceed them, without the consent of the people, on the one hand; or without, on the other, a violation of that original contract, which in all states impliedly, and in ours most expressly, subsists between the prince and the subject. it will now be our business to consider this prerogative minutely; to demonstrate it's necessity in general; and to mark out in the most important instances it's particular extent and restrictions: from which considerations this conclusion will evidently follow, that the powers which are vested in the crown by the laws of england, are necessary for the support of society; and do not intrench any farther on our _natural_ liberties, than is expedient for the maintenance of our _civil_. [footnote a: chap. 1. page 137.] there cannot be a stronger proof of that genuine freedom, which is the boast of this age and country, than the power of discussing and examining, with decency and respect, the limits of the king's prerogative. a topic, that in some former ages was thought too delicate and sacred to be profaned by the pen of a subject. it was ranked among the _arcana imperii_; and, like the mysteries of the _bona dea_, was not suffered to be pried into by any but such as were initiated in it's service: because perhaps the exertion of the one, like the solemnities of the other, would not bear the inspexion of a rational and sober enquiry. the glorious queen elizabeth herself made no scruple to direct her parliaments to abstain from discoursing of matters of state[b]; and it was the constant language of this favorite princess and her ministers, that even that august assembly "ought not to deal, to judge, or to meddle, with her majesty's prerogative royal[c]." and her successor, king james the first, who had imbibed high notions of the divinity of regal sway, more than once laid it down in his speeches, that "as it is atheism and blasphemy in a creature to dispute what the deity may do, so it is presumption and sedition in a subject to dispute what a king may do in the height of his power: good christians, he adds, will be content with god's will, revealed in his word; and good subjects will rest in the king's will, revealed in _his_ law[d]." [footnote b: dewes. 479.] [footnote c: _ibid._ 645.] [footnote d: king james's works. 557, 531.] but, whatever might be the sentiments of some of our princes, this was never the language of our antient constitution and laws. the limitation of the regal authority was a first and essential principle in all the gothic systems of government established in europe; though gradually driven out and overborne, by violence and chicane, in most of the kingdoms on the continent. we have seen, in the preceding chapter, the sentiments of bracton and fortescue, at the distance of two centuries from each other. and sir henry finch, under charles the first, after the lapse of two centuries more, though he lays down the law of prerogative in very strong and emphatical terms, yet qualifies it with a general restriction, in regard to the liberties of the people. "the king hath a prerogative in all things, that are not injurious to the subject; for in them all it must be remembered, that the king's prerogative stretcheth not to the doing of any wrong[e]." _nihil enim aliud potest rex, nisi id solum quod de jure potest_[f]. and here it may be some satisfaction to remark, how widely the civil law differs from our own, with regard to the authority of the laws over the prince, or (as a civilian would rather have expressed it) the authority of the prince over the laws. it is a maxim of the english law, as we have seen from bracton, that "_rex debet esse sub lege, quia lex facit regem_:" the imperial law will tell us, that "_in omnibus, imperatoris excipitur fortuna; cui ipsas leges deus subjecit_[g]." we shall not long hesitate to which of them to give the preference, as most conducive to those ends for which societies were framed, and are kept together; especially as the roman lawyers themselves seem to be sensible of the unreasonableness of their own constitution. "_decet tamen principem_," says paulus, "_servare leges, quibus ipse solutus est_[h]." this is at once laying down the principle of despotic power, and at the same time acknowleging it's absurdity. [footnote e: finch. l. 84, 85.] [footnote f: bract. _l._ 3. _tr._ 1. _c._ 9.] [footnote g: _nov._ 105. â§. 2.] [footnote h: _ff._ 32. 1. 23.] by the word prerogative we usually understand that special pre-eminence, which the king hath, over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity. it signifies, in it's etymology, (from _prae_ and _rogo_) something that is required or demanded before, or in preference to, all others. and hence it follows, that it must be in it's nature singular and eccentrical; that it can only be applied to those rights and capacities which the king enjoys alone, in contradistinction to others, and not to those which he enjoys in common with any of his subjects: for if once any one prerogative of the crown could be held in common with the subject, it would cease to be prerogative any longer. and therefore finch[i] lays it down as a maxim, that the prerogative is that law in case of the king, which is law in no case of the subject. [footnote i: finch. l. 85.] prerogatives are either _direct_ or _incidental_. the _direct_ are such positive substantial parts of the royal character and authority, as are rooted in and spring from the king's political person, considered merely by itself, without reference to any other extrinsic circumstance; as, the right of sending embassadors, of creating peers, and of making war or peace. but such prerogatives as are _incidental_ bear always a relation to something else, distinct from the king's person; and are indeed only exceptions, in favour of the crown, to those general rules that are established for the rest of the community: such as, that no costs shall be recovered against the king; that the king can never be a joint-tenant; and that his debt shall be preferred before a debt to any of his subjects. these, and an infinite number of other instances, will better be understood, when we come regularly to consider the rules themselves, to which these incidental prerogatives are exceptions. and therefore we will at present only dwell upon the king's substantive or direct prerogatives. these substantive or direct prerogatives may again be divided into three kinds: being such as regard, first, the king's royal _character_; secondly, his royal _authority_; and, lastly, his royal _income_. these are necessary, to secure reverence to his person, obedience to his commands, and an affluent supply for the ordinary expenses of government; without all of which it is impossible to maintain the executive power in due independence and vigour. yet, in every branch of this large and extensive dominion, our free constitution has interposed such seasonable checks and restrictions, as may curb it from trampling on those liberties, which it was meant to secure and establish. the enormous weight of prerogative (if left to itself, as in arbitrary government it is) spreads havoc and destruction among all the inferior movements: but, when balanced and bridled (as with us) by it's proper counterpoise, timely and judiciously applied, it's operations are then equable and regular, it invigorates the whole machine, and enables every part to answer the end of it's construction. in the present chapter we shall only consider the two first of these divisions, which relate to the king's political _character_ and _authority_; or, in other words, his _dignity_ and regal _power_; to which last the name of prerogative is frequently narrowed and confined. the other division, which forms the royal _revenue_, will require a distinct examination; according to the known distribution of the feodal writers, who distinguish the royal prerogatives into the _majora_ and _minora regalia_, in the latter of which classes the rights of the revenue are ranked. for, to use their own words, "_majora regalia imperii praeeminentiam spectant; minora vero ad commodum pecuniarium immediate attinent; et haec proprie fiscalia sunt, et ad jus fisci pertinent_[k]." [footnote k: _peregrin. de jure fisc._ _l._ 1. _c._ i. _num._ 9.] first, then, of the royal dignity. under every monarchical establishment, it is necessary to distinguish the prince from his subjects, not only by the outward pomp and decorations of majesty, but also by ascribing to him certain qualities, as inherent in his royal capacity, distinct from and superior to those of any other individual in the nation. for, though a philosophical mind will consider the royal person merely as one man appointed by mutual consent to preside over many others, and will pay him that reverence and duty which the principles of society demand, yet the mass of mankind will be apt to grow insolent and refractory, if taught to consider their prince as a man of no greater perfection than themselves. the law therefore ascribes to the king, in his high political character, not only large powers and emoluments which form his prerogative and revenue, but likewise certain attributes of a great and transcendent nature; by which the people are led to consider him in the light of a superior being, and to pay him that awful respect, which may enable him with greater ease to carry on the business of government. this is what i understand by the royal dignity, the several branches of which we will now proceed to examine. i. and, first, the law ascribes to the king the attribute of _sovereignty_, or pre-eminence. "_rex est vicarius_," says bracton[l], "_et minister dei in terra: omnis quidem sub eo est, et ipse sub nullo, nisi tantum sub deo._" he is said to have _imperial_ dignity, and in charters before the conquest is frequently stiled _basileus_ and _imperator_, the titles respectively assumed by the emperors of the east and west[m]. his realm is declared to be an _empire_, and his crown imperial, by many acts of parliament, particularly the statutes 24 hen. viii. c. 12. and 25 hen. viii. c. 28; which at the same time declare the king to be the supreme head of the realm in matters both civil and ecclesiastical, and of consequence inferior to no man upon earth, dependent on no man, accountable to no man. formerly there prevailed a ridiculous notion, propagated by the german and italian civilians, that an emperor could do many things which a king could not, (as the creation of notaries and the like) and that all kings were in some degree subordinate and subject to the emperor of germany or rome. the meaning therefore of the legislature, when it uses these terms of _empire_ and _imperial_, and applies them to the realm of england, is only to assert that our king is equally sovereign and independent within these his dominions, as any emperor is in his empire; and owes no kind of subjection to any other potentate upon earth. hence it is, that no suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him. for all jurisdiction implies superiority of power: authority to try would be vain and idle, without an authority to redress; and the sentence of a court would be contemptible, unless that court had power to command the execution of it: but who, says finch[n], shall command the king? hence it is likewise, that by law the person of the king is sacred, even though the measures pursued in his reign be completely tyrannical and arbitrary: for no jurisdiction upon earth has power to try him in a criminal way; much less to condemn him to punishment. if any foreign jurisdiction had this power, as was formerly claimed by the pope, the independence of the kingdom would be no more: and, if such a power were vested in any domestic tribunal, there would soon be an end of the constitution, by destroying the free agency of one of the constituent parts of the sovereign legislative power. [footnote l: _l._ 1. _c._ 8.] [footnote m: seld. tit. of hon. 1. 2.] [footnote n: finch. l. 83.] are then, it may be asked, the subjects of england totally destitute of remedy, in case the crown should invade their rights, either by private injuries, or public oppressions? to this we may answer, that the law has provided a remedy in both cases. and, first, as to private injuries; if any person has, in point of property, a just demand upon the king, he must petition him in his court of chancery, where his chancellor will administer right as a matter of grace, though not upon compulsion[o]. and this is entirely consonant to what is laid down by the writers on natural law. "a subject, says puffendorf[p], so long as he continues a subject, hath no way to _oblige_ his prince to give him his due, when he refuses it; though no wise prince will ever refuse to stand to a lawful contract. and, if the prince gives the subject leave to enter an action against him, upon such contract, in his own courts, the action itself proceeds rather upon natural equity, than upon the municipal laws." for the end of such action is not to _compel_ the prince to observe the contract, but to _persuade_ him. and, as to personal wrongs; it is well observed by mr locke[q], "the harm which the sovereign can do in his own person not being likely to happen often, nor to extend itself far; nor being able by his single strength to subvert the laws, nor oppress the body of the people, (should any prince have so much weakness and ill nature as to endeavour to do it)--the inconveniency therefore of some particular mischiefs, that may happen sometimes, when a heady prince comes to the throne, are well recompensed by the peace of the public and security of the government, in the person of the chief magistrate being thus set out of the reach of danger." [footnote o: finch. l. 255.] [footnote p: law of n. and n. l. 8. c. 10.] [footnote q: on gov. p. 2. â§. 205.] next, as to cases of ordinary public oppression, where the vitals of the constitution are not attacked, the law hath also assigned a remedy. for, as a king cannot misuse his power, without the advice of evil counsellors, and the assistance of wicked ministers, these men may be examined and punished. the constitution has therefore provided, by means of indictments, and parliamentary impeachments, that no man shall dare to assist the crown in contradiction to the laws of the land. but it is at the same time a maxim in those laws, that the king himself can do no wrong; since it would be a great weakness and absurdity in any system of positive law, to define any possible wrong, without any possible redress. for, as to such public oppressions as tend to dissolve the constitution, and subvert the fundamentals of government, they are cases which the law will not, out of decency, suppose; being incapable of distrusting those, whom it has invested with any part of the supreme power; since such distrust would render the exercise of that power precarious and impracticable. for, whereever [transcriber's note: wherever] the law expresses it's distrust of abuse of power, it always vests a superior coercive authority in some other hand to correct it; the very notion of which destroys the idea of sovereignty. if therefore (for example) the two houses of parliament, or either of them, had avowedly a right to animadvert on the king, or each other, or if the king had a right to animadvert on either of the houses, that branch of the legislature, so subject to animadversion, would instantly cease to be part of the supreme power; the ballance of the constitution would be overturned; and that branch or branches, in which this jurisdiction resided, would be completely sovereign. the supposition of _law_ therefore is, that neither the king nor either house of parliament (collectively taken) is capable of doing any wrong; since in such cases the law feels itself incapable of furnishing any adequate remedy. for which reason all oppressions, which may happen to spring from any branch of the sovereign power, must necessarily be out of the reach of any _stated rule_, or _express legal_ provision: but, if ever they unfortunately happen, the prudence of the times must provide new remedies upon new emergencies. indeed, it is found by experience, that whenever the unconstitutional oppressions, even of the sovereign power, advance with gigantic strides and threaten desolation to a state, mankind will not be reasoned out of the feelings of humanity; nor will sacrifice their liberty by a scrupulous adherence to those political maxims, which were originally established to preserve it. and therefore, though the positive laws are silent, experience will furnish us with a very remarkable case, wherein nature and reason prevailed. when king james the second invaded the fundamental constitution of the realm, the convention declared an abdication, whereby the throne was rendered vacant, which induced a new settlement of the crown. and so far as this precedent leads, and no farther, we may now be allowed to lay down the _law_ of redress against public oppression. if therefore any future prince should endeavour to subvert the constitution by breaking the original contract between king and people, should violate the fundamental laws, and should withdraw himself out of the kingdom; we are now authorized to declare that this conjunction of circumstances would amount to an abdication, and the throne would be thereby vacant. but it is not for us to say, that any one, or two, of these ingredients would amount to such a situation; for there our precedent would fail us. in these therefore, or other circumstances, which a fertile imagination may furnish, since both law and history are silent, it becomes us to be silent too; leaving to future generations, whenever necessity and the safety of the whole shall require it, the exertion of those inherent (though latent) powers of society, which no climate, no time, no constitution, no contract, can ever destroy or diminish. ii. besides the attribute of sovereignty, the law also ascribes to the king, in his political capacity, absolute _perfection_. the king can do no wrong. which antient and fundamental maxim is not to be understood, as if every thing transacted by the government was of course just and lawful, but means only two things. first, that whatever is exceptionable in the conduct of public affairs is not to be imputed to the king, nor is he answerable for it personally to his people: for this doctrine would totally destroy that constitutional independence of the crown, which is necessary for the balance of power, in our free and active, and therefore compounded, constitution. and, secondly, it means that the prerogative of the crown extends not to do any injury: it is created for the benefit of the people, and therefore cannot be exerted to their prejudice[r]. [footnote r: plowd. 487.] the king, moreover, is not only incapable of _doing_ wrong, but even of _thinking_ wrong: he can never mean to do an improper thing: in him is no folly or weakness. and therefore, if the crown should be induced to grant any franchise or privilege to a subject contrary to reason, or in any wise prejudicial to the commonwealth, or a private person, the law will not suppose the king to have meant either an unwise or an injurious action, but declares that the king was deceived in his grant; and thereupon such grant is rendered void, merely upon the foundation of fraud and deception, either by or upon those agents, whom the crown has thought proper to employ. for the law will not cast an imputation on that magistrate whom it entrusts with the executive power, as if he was capable of intentionally disregarding his trust: but attributes to mere imposition (to which the most perfect of sublunary beings must still continue liable) those little inadvertencies, which, if charged on the will of the prince, might lessen him in the eyes of his subjects. yet still, notwithstanding this personal perfection, which the law attributes to the sovereign, the constitution has allowed a latitude of supposing the contrary, in respect to both houses of parliament; each of which, in it's turn, hath exerted the right of remonstrating and complaining to the king even of those acts of royalty, which are most properly and personally his own; such as messages signed by himself, and speeches delivered from the throne. and yet, such is the reverence which is paid to the royal person, that though the two houses have an undoubted right to consider these acts of state in any light whatever, and accordingly treat them in their addresses as personally proceeding from the prince, yet, among themselves, (to preserve the more perfect decency, and for the greater freedom of debate) they usually suppose them to flow from the advice of the administration. but the privilege of canvassing thus freely the personal acts of the sovereign (either directly, or even through the medium of his reputed advisers) belongs to no individual, but is confined to those august assemblies: and there too the objections must be proposed with the utmost respect and deference. one member was sent to the tower[s], for suggesting that his majesty's answer to the address of the commons contained "high words, to fright the members out of their duty;" and another[t], for saying that a part of the king's speech "seemed rather to be calculated for the meridian of germany than great britain." [footnote s: com. journ. 18 nov. 1685.] [footnote t: com. journ. 4 dec. 1717.] in farther pursuance of this principle, the law also determines that in the king can be no negligence, or _laches_, and therefore no delay will bar his right. _nullum tempus occurrit regi_ is the standing maxim upon all occasions: for the law intends that the king is always busied for the public good, and therefore has not leisure to assert his right within the times limited to subjects[u]. in the king also can be no stain or corruption of blood: for if the heir to the crown were attainted of treason or felony, and afterwards the crown should descend to him, this would purge the attainder _ipso facto_[w]. and therefore when henry vii, who as earl of richmond stood attainted, came to the crown, it was not thought necessary to pass an act of parliament to reverse this attainder; because, as lord bacon in his history of that prince informs us, it was agreed that the assumption of the crown had at once purged all attainders. neither can the king in judgment of law, as king, ever be a minor or under age; and therefore his royal grants and assents to acts of parliament are good, though he has not in his natural capacity attained the legal age of twenty one[x]. by a statute indeed, 28 hen. viii. c. 17. power was given to future kings to rescind and revoke all acts of parliament that should be made while they were under the age of twenty four: but this was repealed by the statute 1 edw. vi. c. 11. so far as related to that prince; and both statutes are declared to be determined by 24 geo. ii. c. 24. it hath also been usually thought prudent, when the heir apparent has been very young, to appoint a protector, guardian, or regent, for a limited time: but the very necessity of such extraordinary provision is sufficient to demonstrate the truth of that maxim of the common law, that in the king is no minority; and therefore he hath no legal guardian[y]. [footnote u: finch. l. 82. co. litt. 90 _b._] [footnote w: finch. l. 82.] [footnote x: co. litt. 43.] [footnote y: the methods of appointing this guardian or regent have been so various, and the duration of his power so uncertain, that from thence alone it may be collected that his office is unknown to the common law; and therefore (as sir edward coke says, 4 inst. 58.) the surest way is to have him made by authority of the great council in parliament. the earl of pembroke by his own authority assumed, in very troublesome times, the regency of henry iii, who was then only nine years old; but was declared of full age by the pope at seventeen, confirmed the great charter at eighteen, and took upon him the administration of the government at twenty. a guardian and council of regency were named for edward iii, by the parliament which deposed his father; the young king being then fifteen, and not assuming the government till three years after. when richard ii succeeded at the age of eleven, the duke of lancaster took upon him the management of the kingdom, till the parliament met, which appointed a nominal council to assist him. henry v on his death-bed named a regent and a guardian for his infant son henry vi, then nine months old: but the parliament altered his disposition, and appointed a protector and council, with a special limited authority. both these princes remained in a state of pupillage till the age of twenty three. edward v, at the age of thirteen, was recommended by his father to the care of the duke of glocester; who was declared protector by the privy council. the statutes 25 hen. viii. c. 12. and 28 hen. viii. c. 7. provided, that the successor, if a male and under eighteen, or if a female and under sixteen, should be till such age in the governance of his or her natural mother, (if approved by the king) and such other counsellors as his majesty should by will or otherwise appoint: and he accordingly appointed his sixteen executors to have the government of his son, edward vi, and the kingdom; which executors elected the earl of hertford protector. the statute 24 geo. ii. c. 24. in case the crown should descend to any of the children of frederick late prince of wales under the age of eighteen, appoints the princess dowager;--and that of 5 geo. iii. c. 27. in case of a like descent to any of his present majesty's children, empowers the king to name either the queen, the princess dowager, or any descendant of king george ii residing in this kingdom;--to be guardian and regent, till the successor attains such age, assisted by a council of regency: the powers of them all being expressly defined and set down in the several acts.] iii. a third attribute of the king's majesty is his _perpetuity_. the law ascribes to him, in his political capacity, an absolute immortality. the king never dies. henry, edward, or george may die; but the king survives them all. for immediately upon the decease of the reigning prince in his natural capacity, his kingship or imperial dignity, by act of law, without any _interregnum_ or interval, is vested at once in his heir; who is, _eo instanti_, king to all intents and purposes. and so tender is the law of supposing even a possibility of his death, that his natural dissolution is generally called his _demise_; _dimissio regis, vel coronae_: an expression which signifies merely a transfer of property; for, as is observed in plowden[z], when we say the demise of the crown, we mean only that in consequence of the disunion of the king's body natural from his body politic, the kingdom is transferred or demised to his successor; and so the royal dignity remains perpetual. thus too, when edward the fourth, in the tenth year of his reign, was driven from his throne for a few months by the house of lancaster, this temporary transfer of his dignity was denominated his _demise_; and all process was held to be discontinued, as upon a natural death of the king[a]. [footnote z: plowd. 177. 234.] [footnote a: m. 49 hen. vi. pl. 1-8.] we are next to consider those branches of the royal prerogative, which invest this our sovereign lord, thus all-perfect and immortal in his kingly capacity, with a number of authorities and powers; in the exertion whereof consists the executive part of government. this is wisely placed in a single hand by the british constitution, for the sake of unanimity, strength and dispatch. were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in a government: and to unite those several wills, and reduce them to one, is a work of more time and delay than the exigencies of state will afford. the king of england is therefore not only the chief, but properly the sole, magistrate of the nation; all others acting by commission from, and in due subordination to him: in like manner as, upon the great revolution in the roman state, all the powers of the antient magistracy of the commonwealth were concentred in the new emperor; so that, as gravina[b] expresses it, "_in ejus unius persona veteris reipublicae vis atque majestas per cumulatas magistratuum potestates exprimebatur_." [footnote b: _orig._ 1. â§. 105.] after what has been premised in this chapter, i shall not (i trust) be considered as an advocate for arbitrary power, when i lay it down as a principle, that in the exertion of lawful prerogative, the king is and ought to be absolute; that is, so far absolute, that there is no legal authority that can either delay or resist him. he may reject what bills, may make what treaties, may coin what money, may create what peers, may pardon what offences he pleases: unless where the constitution hath expressly, or by evident consequence, laid down some exception or boundary; declaring, that thus far the prerogative shall go and no farther. for otherwise the power of the crown would indeed be but a name and a shadow, insufficient for the ends of government, if, where it's jurisdiction is clearly established and allowed, any man or body of men were permitted to disobey it, in the ordinary course of law: i say, in the _ordinary_ course of law; for i do not now speak of those _extraordinary_ recourses to first principles, which are necessary when the contracts of society are in danger of dissolution, and the law proves too weak a defence against the violence of fraud or oppression. and yet the want of attending to this obvious distinction has occasioned these doctrines, of absolute power in the prince and of national resistance by the people, to be much misunderstood and perverted by the advocates for slavery on the one hand, and the demagogues of faction on the other. the former, observing the absolute sovereignty and transcendent dominion of the crown laid down (as it certainly is) most strongly and emphatically in our lawbooks, as well as our homilies, have denied that any case can be excepted from so general and positive a rule; forgetting how impossible it is, in any practical system of laws, to point out beforehand those eccentrical remedies, which the sudden emergence of national distress may dictate, and which that alone can justify. on the other hand, over-zealous republicans, feeling the absurdity of unlimited passive obedience, have fancifully (or sometimes factiously) gone over to the other extreme: and, because resistance is justifiable to the person of the prince when the being of the state is endangered, and the public voice proclaims such resistance necessary, they have therefore allowed to every individual the right of determining this expedience, and of employing private force to resist even private oppression. a doctrine productive of anarchy, and (in consequence) equally fatal to civil liberty as tyranny itself. for civil liberty, rightly understood, consists in protecting the rights of individuals by the united force of society: society cannot be maintained, and of course can exert no protection, without obedience to some sovereign power: and obedience is an empty name, if every individual has a right to decide how far he himself shall obey. in the exertion therefore of those prerogatives, which the law has given him, the king is irresistible and absolute, according to the forms of the constitution. and yet, if the consequence of that exertion be manifestly to the grievance or dishonour of the kingdom, the parliament will call his advisers to a just and severe account. for prerogative consisting (as mr locke[c] has well defined it) in the discretionary power of acting for the public good, where the positive laws are silent, if that discretionary power be abused to the public detriment, such prerogative is exerted in an unconstitutional manner. thus the king may make a treaty with a foreign state, which shall irrevocably bind the nation; and yet, when such treaties have been judged pernicious, impeachments have pursued those ministers, by whose agency or advice they were concluded. [footnote c: on gov. 2. â§. 166.] the prerogatives of the crown (in the sense under which we are now considering them) respect either this nation's intercourse with foreign nations, or it's own domestic government and civil polity. with regard to foreign concerns, the king is the delegate or representative of his people. it is impossible that the individuals of a state, in their collective capacity, can transact the affairs of that state with another community equally numerous as themselves. unanimity must be wanting to their measures, and strength to the execution of their counsels. in the king therefore, as in a center, all the rays of his people are united, and form by that union a consistency, splendor, and power, that make him feared and respected by foreign potentates; who would scruple to enter into any engagements, that must afterwards be revised and ratified by a popular assembly. what is done by the royal authority, with regard to foreign powers, is the act of the whole nation: what is done without the king's concurrence is the act only of private men. and so far is this point carried by our law, that it hath been held[d], that should all the subjects of england make war with a king in league with the king of england, without the royal assent, such war is no breach of the league. and, by the statute 2 hen. v. c. 6. any subject committing acts of hostility upon any nation in league with the king, was declared to be guilty of high treason: and, though that act was repealed by the statute 20 hen. vi. c. 11. so far as relates to the making this offence high treason, yet still it remains a very great offence against the law of nations, and punishable by our laws, either capitally or otherwise, according to the circumstances of the case. [footnote d: 4 inst. 152.] i. the king therefore, considered as the representative of his people, has the sole power of sending embassadors to foreign states, and receiving embassadors at home. this may lead us into a short enquiry, how far the municipal laws of england intermeddle with or protect the rights of these messengers from one potentate to another, whom we call embassadors. the rights, the powers, the duties, and the privileges of embassadors are determined by the law of nature and nations, and not by any municipal constitutions. for, as they represent the persons of their respective masters, who owe no subjection to any laws but those of their own country, their actions are not subject to the control of the private law of that state, wherein they are appointed to reside. he that is subject to the coercion of laws is necessarily dependent on that power by whom those laws were made: but an embassador ought to be independent of every power, except that by which he is sent; and of consequence ought not to be subject to the mere municipal laws of that nation, wherein he is to exercise his functions. if he grossly offends, or makes an ill use of his character, he may be sent home and accused before his master[e]; who is bound either to do justice upon him, or avow himself the accomplice of his crimes[f]. but there is great dispute among the writers on the laws of nations, whether this exemption of embassadors extends to all crimes, as well natural as positive; or whether it only extends to such as are _mala prohibita_, as coining, and not to those that are _mala in se_, as murder[g]. our law seems to have formerly taken in the restriction, as well as the general exemption. for it has been held, both by our common lawyers and civilians[h], that an embassador is privileged by the law of nature and nations; and yet, if he commits any offence against the law of reason and nature, he shall lose his privilege[i]: and that therefore, if an embassador conspires the death of the king in whose land he is, he may be condemned and executed for treason; but if he commits any other species of treason, it is otherwise, and he must be sent to his own kingdom[k]. and these positions seem to be built upon good appearance of reason. for since, as we have formerly shewn, all municipal laws act in subordination to the primary law of nature, and, where they annex a punishment to natural crimes, are only declaratory of and auxiliary to that law; therefore to this natural, universal rule of justice embassadors, as well as other men, are subject in all countries; and of consequence it is reasonable that wherever they transgress it, there they shall be liable to make atonement[l]. but, however these principles might formerly obtain, the general practice of europe seems now to have adopted the sentiments of the learned grotius, that the security of embassadors is of more importance than the punishment of a particular crime[m]. and therefore few, if any, examples have happened within a century past, where an embassador has been punished for any offence, however atrocious in it's nature. [footnote e: as was done with count gyllenberg the swedish minister to great britain, _a.d._ 1716.] [footnote f: sp. l. 26. 21.] [footnote g: van leeuwen _in ff._ 50. 7. 17. barbeyrac's puff. l. 8. c. 9. â§. 9. & 17. van bynkershoek _de foro legator._ c. 17, 18, 19.] [footnote h: 1 roll. rep. 175. 3 bulstr. 27.] [footnote i: 4 inst. 153.] [footnote k: 1 roll. rep. 185.] [footnote l: foster's reports. 188.] [footnote m: _securitas legatorum utilitati quae ex poena est praeponderat._ _de jur. b. & p._ 2. 18. 4. 4.] in respect to civil suits, all the foreign jurists agree, that neither an embassador, nor any of his train or _comites_, can be prosecuted for any debt or contract in the courts of that kingdom wherein he is sent to reside. yet sir edward coke maintains, that, if an embassador make a contract which is good _jure gentium_, he shall answer for it here[n]. and the truth is, we find no traces in our lawbooks of allowing any privilege to embassadors or their domestics, even in civil suits, previous to the reign of queen anne; when an embassador from peter the great, czar of muscovy, was actually arrested and taken out of his coach in london, in 1708, for debts which he had there contracted. this the czar resented very highly, and demanded (we are told) that the officers who made the arrest should be punished with death. but the queen (to the amazement of that despotic court) directed her minister to inform him, "that the law of england had not yet protected embassadors from the payment of their lawful debts; that therefore the arrest was no offence by the laws; and that she could inflict no punishment upon any, the meanest, of her subjects, unless warranted by the law of the land[o]." to satisfy however the clamours of the foreign ministers (who made it a common cause) as well as to appease the wrath of peter[p], a new statute was enacted by parliament[q], reciting the arrest which had been made, "in contempt of the protection granted by her majesty, contrary to the law of nations, and in prejudice of the rights and privileges, which embassadors and other public ministers have at all times been thereby possessed of, and ought to be kept sacred and inviolable:" wherefore it enacts, that for the future all process whereby the person of any embassador, or of his domestic or domestic servant, may be arrested, or his goods distreined or seised, shall be utterly null and void; and the persons prosecuting, soliciting, or executing such process shall be deemed violaters of the law of nations, and disturbers of the public repose; and shall suffer such penalties and corporal punishment as the lord chancellor and the two chief justices, or any two of them, shall think fit. but it is expressly provided, that no trader, within the description of the bankrupt laws, who shall be in the service of any embassador, shall be privileged or protected by this act; nor shall any one be punished for arresting an embassador's servant, unless his name be registred with the secretary of state, and by him transmitted to the sheriffs of london and middlesex. exceptions, that are strictly conformable to the rights of embassadors[r], as observed in the most civilized countries. and, in consequence of this statute, thus enforcing the law of nations, these privileges are now usually allowed in the courts of common law[s]. [footnote n: 4 inst. 153.] [footnote o: mod. un. hist. xxxv. 454.] [footnote p: a copy of the act made upon this occasion, very elegantly engrossed and illuminated, was sent him to moscow as a present.] [footnote q: 7 ann. c. 12.] [footnote r: _saepe quaesitum est an comitum numero et jure habendi sunt, qui legatum comitantur, non ut instructior fiat legatio, sed unice ut lucro suo consulant, institores forte et mercatores. et, quamvis hos saepe defenderint et comitum loco habere voluerint legati, apparet tamen satis eo non pertinere, qui in legati legationisve officio non sunt. quum autem ea res nonnunquam turbas dederit, optimo exemplo in quibusdam aulis olim receptum fuit, ut legatus teneretur exhibere nomenclaturam comitum suorum._ van bynkersh. _c._ 15. _prope finem_.] [footnote s: fitzg. 200. stra. 797.] ii. it is also the king's prerogative to make treaties, leagues, and alliances with foreign states and princes. for it is by the law of nations essential to the goodness of a league, that it be made by the sovereign power[t]; and then it is binding upon the whole community: and in england the sovereign power, _quoad hoc_, is vested in the person of the king. whatever contracts therefore he engages in, no other power in the kingdom can legally delay, resist, or annul. and yet, lest this plenitude of authority should be abused to the detriment of the public, the constitution (as was hinted before) hath here interposed a check, by the means of parliamentary impeachment, for the punishment of such ministers as advise or conclude any treaty, which shall afterwards be judged to derogate from the honour and interest of the nation. [footnote t: puff. l. of n. b. 8. c. 9. â§. 6.] iii. upon the same principle the king has also the sole prerogative of making war and peace. for it is held by all the writers on the law of nature and nations, that the right of making war, which by nature subsisted in every individual, is given up by all private persons that enter into society, and is vested in the sovereign power[u]: and this right is given up not only by individuals, but even by the intire body of people, that are under the dominion of a sovereign. it would indeed be extremely improper, that any number of subjects should have the power of binding the supreme magistrate, and putting him against his will in a state of war. whatever hostilities therefore may be committed by private citizens, the state ought not to be affected thereby; unless that should justify their proceedings, and thereby become partner in the guilt. such unauthorized voluntiers in violence are not ranked among open enemies, but are treated like pirates and robbers: according to that rule of the civil law[w]; _hostes hi sunt qui nobis, aut quibus nos, publice bellum decrevimus: caeteri latrones aut praedones sunt_. and the reason which is given by grotius[x], why according to the law of nations a denunciation of war ought always to precede the actual commencement of hostilities, is not so much that the enemy may be put upon his guard, (which is matter rather of magnanimity than right) but that it may be certainly clear that the war is not undertaken by private persons, but by the will of the whole community; whose right of willing is in this case transferred to the supreme magistrate by the fundamental laws of society. so that, in order to make a war completely effectual, it is necessary with us in england that it be publicly declared and duly proclaimed by the king's authority; and, then, all parts of both the contending nations, from the highest to the lowest, are bound by it. and, wherever the right resides of beginning a national war, there also must reside the right of ending it, or the power of making peace. and the same check of parliamentary impeachment, for improper or inglorious conduct, in beginning, conducting, or concluding a national war, is in general sufficient to restrain the ministers of the crown from a wanton or injurious exertion of this great prerogative. [footnote u: puff. l. 8. c. 6. â§. 8. and barbeyr. _in loc._] [footnote w: _ff._ 50. 16. 118.] [footnote x: _de jur. b. & p._ _l._ 3. _c._ 3. â§. 11.] iv. but, as the delay of making war may sometimes be detrimental to individuals who have suffered by depredations from foreign potentates, our laws have in some respect armed the subject with powers to impel the prerogative; by directing the ministers of the crown to issue letters of marque and reprisal upon due demand: the prerogative of granting which is nearly related to, and plainly derived from, that other of making war; this being indeed only an incomplete state of hostilities, and generally ending in a formal denunciation of war. these letters are grantable by the law of nations[y], whenever the subjects of one state are oppressed and injured by those of another; and justice is denied by that state to which the oppressor belongs. in this case letters of marque and reprisal (words in themselves synonimous and signifying a taking in return) may be obtained, in order to seise the bodies or goods of the subjects of the offending state, until satisfaction be made, wherever they happen to be found. indeed this custom of reprisals seems dictated by nature herself; and accordingly we find in the most antient times very notable instances of it[z]. but here the necessity is obvious of calling in the sovereign power, to determine when reprisals may be made; else every private sufferer would be a judge in his own cause. and, in pursuance of this principle, it is with us declared by the statute 4 hen. v. c. 7. that, if any subjects of the realm are oppressed in time of truce by any foreigners, the king will grant marque in due form, to all that feel themselves grieved. which form is thus directed to be observed: the sufferer must first apply to the lord privy-seal, and he shall make out letters of request under the privy seal; and, if, after such request of satisfaction made, the party required do not within convenient time make due satisfaction or restitution to the party grieved, the lord chancellor shall make him out letters of marque under the great seal; and by virtue of these he may attack and seise the property of the aggressor nation, without hazard of being condemned as a robber or pirate. [footnote y: grot. _de jur. b. & p._ _l._ 3. _c._ 2. â§. 4 & 5.] [footnote z: see the account given by nestor, in the eleventh book of the iliad, of the reprisals made by himself on the epeian nation; from whom he took a multitude of cattle, as a satisfaction for a prize won at the elian games by his father neleus, and for debts due to many private subjects of the pylian kingdom: out of which booty the king took three hundred head of cattle for his own demand, and the rest were equitably divided among the other creditors.] v. upon exactly the same reason stands the prerogative of granting safe-conducts, without which by the law of nations no member of one society has a right to intrude into another. and therefore puffendorf very justly resolves[a], that it is left in the power of all states, to take such measures about the admission of strangers, as they think convenient; those being ever excepted who are driven on the coasts by necessity, or by any cause that deserves pity or compassion. great tenderness is shewn by our laws, not only to foreigners in distress (as will appear when we come to speak of shipwrecks) but with regard also to the admission of strangers who come spontaneously. for so long as their nation continues at peace with ours, and they themselves behave peaceably, they are under the king's protection; though liable to be sent home whenever the king sees occasion. but no subject of a nation at war with us can, by the law of nations, come into the realm, nor can travel himself upon the high seas, or send his goods and merchandize from one place to another, without danger of being seized by our subjects, unless he has letters of safe-conduct; which by divers antient statutes[b] must be granted under the king's great seal and inrolled in chancery, or else are of no effect: the king being supposed the best judge of such emergencies, as may deserve exception from the general law of arms. [footnote a: law of n. and n. b. 3. c. 3. â§. 9.] [footnote b: 15 hen. vi. c. 3. 18 hen. vi. c. 8. 20 hen. vi. c. 1.] indeed the law of england, as a commercial country, pays a very particular regard to foreign merchants in innumerable instances. one i cannot omit to mention: that by _magna carta_[c] it is provided, that all merchants (unless publickly prohibited beforehand) shall have safe conduct to depart from, to come into, to tarry in, and to go through england, for the exercise of merchandize, without any unreasonable imposts, except in time of war: and, if a war breaks out between us and their country, they shall be attached (if in england) without harm of body or goods, till the king or his chief justiciary be informed how our merchants are treated in the land with which we are at war; and, if ours be secure in that land, they shall be secure in ours. this seems to have been a common rule of equity among all the northern nations; for we learn from stiernhook[d], that it was a maxim among the goths and swedes, "_quam legem exteri nobis posuere, eandem illis ponemus_." but it is somewhat extraordinary, that it should have found a place in _magna carta_, a mere interior treaty between the king and his natural-born subjects; which occasions the learned montesquieu to remark with a degree of admiration, "that the english have made the protection of _foreign_ merchants one of the articles of their _national_ liberty[e]." but indeed it well justifies another observation which he has made[f], "that the english know better than any other people upon earth, how to value at the same time these three great advantages, religion, liberty, and commerce." very different from the genius of the roman people; who in their manners, their constitution, and even in their laws, treated commerce as a dishonorable employment, and prohibited the exercise thereof to persons of birth, or rank, or fortune[g]: and equally different from the bigotry of the canonists, who looked on trade as inconsistent with christianity[h], and determined at the council of melfi, under pope urban ii, _a.d._ 1090, that it was impossible with a safe conscience to exercise any traffic, or follow the profession of the law[i]. [footnote c: _c._ 30.] [footnote d: _de jure sueon._ _l._ 3. _c._ 4.] [footnote e: sp. l. 20. 13.] [footnote f: sp. l. 20. 6.] [footnote g: _nobiliores natalibus, et honorum luce conspicuos, et patrimonio ditiores, perniciosum urbibus mercimonium exercere prohibemus._ _c._ 4 63. 3.] [footnote h: _homo mercator vix aut nunquam potest deo placere: et ideo nullus christianus debet esse mercator; aut si voluerit esse, projiciatur de ecclesia dei._ _decret._ 1. 88. 11.] [footnote i: _falsa fit poenitentia [laici] cum penitus ab officio curiali vel negotiali non recedit, quae sine peccatis agi ulla ratione non praevalet._ _act. concil. apud baron._ _c._ 16.] these are the principal prerogatives of the king, respecting this nation's intercourse with foreign nations; in all of which he is considered as the delegate or representative of his people. but in domestic affairs he is considered in a great variety of characters, and from thence there arises an abundant number of other prerogatives. i. first, he is a constituent part of the supreme legislative power; and, as such, has the prerogative of rejecting such provisions in parliament, as he judges improper to be passed. the expediency of which constitution has before been evinced at large[k]. i shall only farther remark, that the king is not bound by any act of parliament, unless he be named therein by special and particular words. the most general words that can be devised ("any person or persons, bodies politic, or corporate, _&c._") affect not him in the least, if they may tend to restrain or diminish any of his rights or interests[l]. for it would be of most mischievous consequence to the public, if the strength of the executive power were liable to be curtailed without it's own express consent, by constructions and implications of the subject. yet where an act of parliament is expressly made for the preservation of public rights and the suppression of public wrongs, and does not interfere with the established rights of the crown, it is said to be binding as well upon the king as upon the subject[m]: and, likewise, the king may take the benefit of any particular act, though he be not especially named[n]. [footnote k: ch. 2. pag. 149.] [footnote l: 11 rep. 74 _b._] [footnote m: 11 rep. 71.] [footnote n: 7 rep. 32.] ii. the king is considered, in the next place, as the generalissimo, or the first in military command, within the kingdom. the great end of society is to protect the weakness of individuals by the united strength of the community: and the principal use of government is to direct that united strength in the best and most effectual manner, to answer the end proposed. monarchical government is allowed to be the fittest of any for this purpose: it follows therefore, from the very end of it's institution, that in a monarchy the military power must be trusted in the hands of the prince. in this capacity therefore, of general of the kingdom, the king has the sole power of raising and regulating fleets and armies. of the manner in which they are raised and regulated i shall speak more, when i come to consider the military state. we are now only to consider the prerogative of enlisting and of governing them: which indeed was disputed and claimed, contrary to all reason and precedent, by the long parliament of king charles i; but, upon the restoration of his son, was solemnly declared by the statute 13 car. ii. c. 6. to be in the king alone: for that the sole supreme government and command of the militia within all his majesty's realms and dominions, and of all forces by sea and land, and of all forts and places of strength, ever was and is the undoubted right of his majesty, and his royal predecessors, kings and queens of england; and that both or either house of parliament cannot, nor ought to, pretend to the same. this statute, it is obvious to observe, extends not only to fleets and armies, but also to forts, and other places of strength, within the realm; the sole prerogative as well of erecting, as manning and governing of which, belongs to the king in his capacity of general of the kingdom[o]: and all lands were formerly subject to a tax, for building of castles wherever the king thought proper. this was one of the three things, from contributing to the performance of which no lands were exempted; and therefore called by our saxon ancestors the _trinoda necessitas: sc. pontis reparatio, arcis constructio, et expeditio contra hostem_[p]. and this they were called upon to do so often, that, as sir edward coke from m. paris assures us[q], there were in the time of henry ii 1115 castles subsisting in england. the inconvenience of which, when granted out to private subjects, the lordly barons of those times, was severely felt by the whole kingdom; for, as william of newbury remarks in the reign of king stephen, "_erant in anglia quodammodo tot reges vel potius tyranni, quot domini castellorum_:" but it was felt by none more sensibly than by two succeeding princes, king john and king henry iii. and therefore, the greatest part of them being demolished in the barons' wars, the kings of after times have been very cautious of suffering them to be rebuilt in a fortified manner: and sir edward coke lays it down[r], that no subject can build a castle, or house of strength imbatteled, or other fortress defensible, without the licence of the king; for the danger which might ensue, if every man at his pleasure might do it. [footnote o: 2 inst. 30.] [footnote p: cowel's interpr. _tit. castellorum operatio_. seld. _jan. angl._ 1. 42.] [footnote q: 2 inst. 31.] [footnote r: 1 inst. 5.] to this branch of the prerogative may be referred the power vested in his majesty, by statutes 12 car. ii. c. 4. and 29 geo. ii. c. 16. of prohibiting the exportation of arms or ammunition out of this kingdom, under severe penalties: and likewise the right which the king has, whenever he sees proper, of confining his subjects to stay within the realm, or of recalling them when beyond the seas. by the common law[s], every man may go out of the realm for whatever cause he pleaseth, without obtaining the king's leave; provided he is under no injunction of staying at home: (which liberty was expressly declared in king john's great charter, though left out in that of henry iii) but, because that every man ought of right to defend the king and his realm, therefore the king at his pleasure may command him by his writ that he go not beyond the seas, or out of the realm without licence; and if he do the contrary, he shall be punished for disobeying the king's command. some persons there antiently were, that, by reason of their stations, were under a perpetual prohibition of going abroad without licence obtained; among which were reckoned all peers, on account of their being counsellors of the crown; all knights, who were bound to defend the kingdom from invasions; all ecclesiastics, who were expressly confined by cap. 4. of the constitutions of clarendon, on account of their attachment in the times of popery to the see of rome; all archers and other artificers, lest they should instruct foreigners to rival us in their several trades and manufactures. this was law in the times of britton[t], who wrote in the reign of edward i: and sir edward coke[u] gives us many instances to this effect in the time of edward iii. in the succeeding reign the affair of travelling wore a very different aspect: an act of parliament being made[w], forbidding all persons whatever to go abroad without licence; _except_ only the lords and other great men of the realm; and true and notable merchants; and the king's soldiers. but this act was repealed by the statute 4 jac. i. c. 1. and at present every body has, or at least assumes, the liberty of going abroad when he pleases. yet undoubtedly if the king, by writ of _ne exeat regnum_, under his great seal or privy seal, thinks proper to prohibit him from so doing; or if the king sends a writ to any man, when abroad, commanding his return; and in either case the subject disobeys; it is a high contempt of the king's prerogative, for which the offender's lands shall be seised till he return; and then he is liable to fine and imprisonment[x]. [footnote s: f.n.b. 85.] [footnote t: c. 123.] [footnote u: 3 inst. 175.] [footnote w: 5 ric. ii. c. 2.] [footnote x: 1 hawk. p.c. 22.] iii. another capacity, in which the king is considered in domestic affairs, is as the fountain of justice and general conservator of the peace of the kingdom. by the fountain of justice the law does not mean the _author_ or _original_, but only the _distributor_. justice is not derived from the king, as from his _free gift_; but he is the steward of the public, to dispense it to whom it is _due_[y]. he is not the spring, but the reservoir; from whence right and equity are conducted, by a thousand chanels, to every individual. the original power of judicature, by the fundamental principles of society, is lodged in the society at large: but as it would be impracticable to render complete justice to every individual, by the people in their collective capacity, therefore every nation has committed that power to certain select magistrates, who with more ease and expedition can hear and determine complaints; and in england this authority has immemorially been exercised by the king or his substitutes. he therefore has alone the right of erecting courts of judicature: for, though the constitution of the kingdom hath entrusted him with the whole executive power of the laws, it is impossible, as well as improper, that he should personally carry into execution this great and extensive trust: it is consequently necessary, that courts should be erected, to assist him in executing this power; and equally necessary, that, if erected, they should be erected by his authority. and hence it is, that all jurisdictions of courts are either mediately or immediately derived from the crown, their proceedings run generally in the king's name, they pass under his seal, and are executed by his officers. [footnote y: _ad hoc autem creatus est et electus, ut justitiam faciat universis._ bract. _l._ 3. _tr._ 1. _c._ 9.] it is probable, and almost certain, that in very early times, before our constitution arrived at it's full perfection, our kings in person often heard and determined causes between party and party. but at present, by the long and uniform usage of many ages, our kings have delegated their whole judicial power to the judges of their several courts; which are the grand depositary of the fundamental laws of the kingdom, and have gained a known and stated jurisdiction, regulated by certain and established rules, which the crown itself cannot now alter but by act of parliament[z]. and, in order to maintain both the dignity and independence of the judges in the superior courts, it is enacted by the statute 13 w. iii. c. 2. that their commissions shall be made (not, as formerly, _durante bene placito_, but) _quamdiu bene se gesserint_, and their salaries ascertained and established; but that it may be lawful to remove them on the address of both houses of parliament. and now, by the noble improvements of that law in the statute of 1 geo. iii. c. 23. enacted at the earnest recommendation of the king himself from the throne, the judges are continued in their offices during their good behaviour, notwithstanding any demise of the crown (which was formerly held[a] immediately to vacate their seats) and their full salaries are absolutely secured to them during the continuance of their commissions: his majesty having been pleased to declare, that "he looked upon the independence and uprightness of the judges, as essential to the impartial administration of justice; as one of the best securities of the rights and liberties of his subjects; and as most conducive to the honour of the crown[b]." [footnote z: 2 hawk. p.c. 2.] [footnote a: ld raym. 747.] [footnote b: com. journ. 3 mar. 1761.] in criminal proceedings, or prosecutions for offences, it would still be a higher absurdity, if the king personally sate in judgment; because in regard to these he appears in another capacity, that of _prosecutor_. all offences are either against the king's peace, or his crown and dignity; and are so laid in every indictment. for, though in their consequences they generally seem (except in the case of treason and a very few others) to be rather offences against the kingdom than the king; yet, as the public, which is an invisible body, has delegated all it's power and rights, with regard to the execution of the laws, to one visible magistrate, all affronts to that power, and breaches of those rights, are immediately offences against him, to whom they are so delegated by the public. he is therefore the proper person to prosecute for all public offences and breaches of the peace, being the person injured in the eye of the law. and this notion was carried so far in the old gothic constitution, (wherein the king was bound by his coronation oath to conserve the peace) that in case of any forcible injury offered to the person of a fellow subject, the offender was accused of a kind of perjury, in having violated the king's coronation oath; _dicebatur fregisse juramentum regis juratum_[c]. and hence also arises another branch of the prerogative, that of _pardoning_ offences; for it is reasonable that he only who is injured should have the power of forgiving. and therefore, in parliamentary impeachments, the king has no prerogative of pardoning: because there the commons of great britain are in their own names the prosecutors, and not the crown; the offence being for the most part avowedly taken to be done against the public. of prosecutions and pardons i shall treat more at large hereafter; and only mention them here, in this cursory manner, to shew the constitutional grounds of this power of the crown, and how regularly connected all the links are in this vast chain of prerogative. [footnote c: stiernh. _de jure goth._ _l._ 3. _c._ 3. a notion somewhat similar to this may be found in the mirrour. c. 1. â§. 5.] in this distinct and separate existence of the judicial power, in a peculiar body of men, nominated indeed, but not removeable at pleasure, by the crown, consists one main preservative of the public liberty; which cannot subsist long in any state, unless the administration of common justice be in some degree separated both from the legislative and also from the executive power. were it joined with the legislative, the life, liberty, and property, of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principles of law; which, though legislators may depart from, yet judges are bound to observe. were it joined with the executive, this union might soon be an over-ballance for the legislative. for which reason, by the statute of 16 car. i. c. 10. which abolished the court of star chamber, effectual care is taken to remove all judicial power out of the hands of the king's privy council; who, as then was evident from recent instances, might soon be inclined to pronounce that for law, which was most agreeable to the prince or his officers. nothing therefore is more to be avoided, in a free constitution, than uniting the provinces of a judge and a minister of state. and indeed, that the absolute power, claimed and exercised in a neighbouring nation, is more tolerable than that of the eastern empires, is in great measure owing to their having vested the judicial power in their parliaments, a body separate and distinct from both the legislative and executive: and, if ever that nation recovers it's former liberty, it will owe it to the efforts of those assemblies. in turkey, where every thing is centered in the sultan or his ministers, despotic power is in it's meridian, and wears a more dreadful aspect. a consequence of this prerogative is the legal _ubiquity_ of the king. his majesty, in the eye of the law, is always present in all his courts, though he cannot personally distribute justice[d]. his judges are the mirror by which the king's image is reflected. it is the regal office, and not the royal person, that is always present in court, always ready to undertake prosecutions, or pronounce judgment, for the benefit and protection of the subject. and from this ubiquity it follows, that the king can never be nonsuit[e]; for a nonsuit is the desertion of the suit or action by the non-appearance of the plaintiff in court. for the same reason also, in the forms of legal proceedings, the king is not said to appear _by his attorney_, as other men do; for he always appears in contemplation of law in his own proper person[f]. [footnote d: fortesc. c. 8. 2 inst. 186.] [footnote e: co. litt. 139.] [footnote f: finch. l. 81.] from the same original, of the king's being the fountain of justice, we may also deduce the prerogative of issuing proclamations, which is vested in the king alone. these proclamations have then a binding force, when (as sir edward coke observes[g]) they are grounded upon and enforce the laws of the realm. for, though the making of laws is entirely the work of a distinct part, the legislative branch, of the sovereign power, yet the manner, time, and circumstances of putting those laws in execution must frequently be left to the discretion of the executive magistrate. and therefore his constitutions or edicts, concerning these points, which we call proclamations, are binding upon the subject, where they do not either contradict the old laws, or tend to establish new ones; but only enforce the execution of such laws as are already in being, in such manner as the king shall judge necessary. thus the established law is, that the king may prohibit any of his subjects from leaving the realm: a proclamation therefore forbidding this in general for three weeks, by laying an embargo upon all shipping in time of war[h], will be equally binding as an act of parliament, because founded upon a prior law. a proclamation for disarming papists is also binding, being only in execution of what the legislature has first ordained: but a proclamation for allowing arms to papists, or for disarming any protestant subjects, will not bind; because the first would be to assume a dispensing power, the latter a legislative one; to the vesting of either of which in any single person the laws of england are absolutely strangers. indeed by the statute 31 hen. viii. c. 8. it was enacted, that the king's proclamations should have the force of acts of parliament: a statute, which was calculated to introduce the most despotic tyranny; and which must have proved fatal to the liberties of this kingdom, had it not been luckily repealed in the minority of his successor, about five years after[i]. [footnote g: 3 inst. 162.] [footnote h: 4 mod. 177, 179.] [footnote i: stat. 1 edw. vi. c. 12.] iv. the king is likewise the fountain of honour, of office, and of privilege: and this in a different sense from that wherein he is stiled the fountain of justice; for here he is really the parent of them. it is impossible that government can be maintained without a due subordination of rank; that the people may know and distinguish such as are set over them, in order to yield them their due respect and obedience; and also that the officers themselves, being encouraged by emulation and the hopes of superiority, may the better discharge their functions: and the law supposes, that no one can be so good a judge of their several merits and services, as the king himself who employs them. it has therefore intrusted with him the sole power of conferring dignities and honours, in confidence that he will bestow them upon none, but such as deserve them. and therefore all degrees of nobility, of knighthood, and other titles, are received by immediate grant from the crown: either expressed in writing, by writs or letters patent, as in the creations of peers and baronets; or by corporeal investiture, as in the creation of a simple knight. from the same principle also arises the prerogative of erecting and disposing of offices: for honours and offices are in their nature convertible and synonymous. all offices under the crown carry in the eye of the law an honour along with them; because they imply a superiority of parts and abilities, being supposed to be always filled with those that are most able to execute them. and, on the other hand, all honours in their original had duties or offices annexed to them: an earl, _comes_, was the conservator or governor of a county; and a knight, _miles_, was bound to attend the king in his wars. for the same reason therefore that honours are in the disposal of the king, offices ought to be so likewise; and as the king may create new titles, so may he create new offices: but with this restriction, that he cannot create new offices with new fees annexed to them, nor annex new fees to old offices; for this would be a tax upon the subject, which cannot be imposed but by act of parliament[k]. wherefore, in 13 hen. iv, a new office being created by the king's letters patent for measuring cloths, with a new fee for the same, the letters patent were, on account of the new fee, revoked and declared void in parliament. [footnote k: 2 inst. 533.] upon the same, or a like reason, the king has also the prerogative of conferring privileges upon private persons. such as granting place or precedence to any of his subjects, as shall seem good to his royal wisdom[l]: or such as converting aliens, or persons born out of the king's dominions, into denizens; whereby some very considerable privileges of natural-born subjects are conferred upon them. such also is the prerogative of erecting corporations; whereby a number of private persons are united and knit together, and enjoy many liberties, powers, and immunities in their politic capacity, which they were utterly incapable of in their natural. of aliens, denizens, natural-born, and naturalized subjects, i shall speak more largely in a subsequent chapter; as also of corporations at the close of this book of our commentaries. i now only mention them incidentally, in order to remark the king's prerogative of making them; which is grounded upon this foundation, that the king, having the sole administration of the government in his hands, is the best and the only judge, in what capacities, with what privileges, and under what distinctions, his people are the best qualified to serve, and to act under him. a principle, which was carried so far by the imperial law, that it was determined to be the crime of sacrilege, even to doubt whether the prince had appointed proper officers in the state[m]. [footnote l: 4 inst. 361.] [footnote m: _disputare de principali judicio non oportet: sacrilegii enim instar est, dubitare an is dignus sit; quem elegerit imperator._ _c._ 9. 29. 3.] v. another light in which the laws of england consider the king with regard to domestic concerns, is as the arbiter of commerce. by commerce, i at present mean domestic commerce only. it would lead me into too large a field, if i were to attempt, to enter upon the nature of foreign trade, it's privileges, regulations, and restrictions; and would be also quite beside the purpose of these commentaries, which are confined to the laws of england. whereas no municipal laws can be sufficient to order and determine the very extensive and complicated affairs of traffic and merchandize; neither can they have a proper authority for this purpose. for as these are transactions carried on between the subjects of independent states, the municipal laws of one will not be regarded by the other. for which reason the affairs of commerce are regulated by a law of their own, called the law merchant or _lex mercatoria_, which all nations agree in and take notice of. and in particular the law of england does in many cases refer itself to it, and leaves the causes of merchants to be tried by their own peculiar customs; and that often even in matters relating to inland trade, as for instance with regard to the drawing, the acceptance, and the transfer, of bills of exchange[n]. [footnote n: co. litt. 172. ld raym. 181. 1542.] with us in england, the king's prerogative, so far as it relates to mere domestic commerce, will fall principally under the following articles: first, the establishment of public marts, or places of buying and selling, such as markets and fairs, with the tolls thereunto belonging. these can only be set up by virtue of the king's grant, or by long and immemorial usage and prescription, which presupposes such a grant[o]. the limitation of these public resorts, to such time and such place as may be most convenient for the neighbourhood, forms a part of oeconomics, or domestic polity; which, considering the kingdom as a large family, and the king as the master of it, he clearly has a right to dispose and order as he pleases. [footnote o: 2 inst. 220.] secondly, the regulation of weights and measures. these, for the advantage of the public, ought to be universally the same throughout the kingdom; being the general criterions which reduce all things to the same or an equivalent value. but, as weight and measure are things in their nature arbitrary and uncertain, it is therefore expedient that they be reduced to some fixed rule or standard: which standard it is impossible to fix by any written law or oral proclamation; for no man can, by words only, give another an adequate idea of a foot-rule, or a pound-weight. it is therefore necessary to have recourse to some visible, palpable, material standard; by forming a comparison with which, all weights and measures may be reduced to one uniform size: and the prerogative of fixing this standard, our antient law vested in the crown; as in normandy it belonged to the duke[p]. this standard was originally kept at winchester: and we find in the laws of king edgar[q], near a century before the conquest, an injunction that the one measure, which was kept at winchester, should be observed throughout the realm. most nations have regulated the standard of measures of length by comparison with the parts of the human body; as the palm, the hand, the span, the foot, the cubit, the ell, (_ulna_, or arm) the pace, and the fathom. but, as these are of different dimensions in men of different proportions, our antient historians[r] inform us, that a new standard of longitudinal measure was ascertained by king henry the first; who commanded that the _ulna_ or antient ell, which answers to the modern yard, should be made of the exact length of his own arm. and, one standard of measures of length being gained, all others are easily derived from thence; those of greater length by multiplying, those of less by subdividing, that original standard. thus, by the statute called _compositio ulnarum et perticarum_, five yards and an half make a perch; and the yard is subdivided into three feet, and each foot into twelve inches; which inches will be each of the length of three grains of barley. superficial measures are derived by squaring those of length; and measures of capacity by cubing them. the standard of weights was originally taken from corns of wheat, whence the lowest denomination of weights we have is still called a grain; thirty two of which are directed, by the statute called _compositio mensurarum_, to compose a penny weight, whereof twenty make an ounce, twelve ounces a pound, and so upwards. and upon these principles the first standards were made; which, being originally so fixed by the crown, their subsequent regulations have been generally made by the king in parliament. thus, under king richard i, in his parliament holden at westminster, _a.d._ 1197, it was ordained that there shall be only one weight and one measure throughout the kingdom, and that the custody of the assise or standard of weights and measures shall be committed to certain persons in every city and borough[s]; from whence the antient office of the king's aulnager seems to have been derived, whose duty it was, for a certain fee, to measure all cloths made for sale, till the office was abolished by the statute 11 & 12 w. iii. c. 20. in king john's time this ordinance of king richard was frequently dispensed with for money[t]; which occasioned a provision to be made for inforcing it, in the great charters of king john and his son[u]. these original standards were called _pondus regis_[w], and _mensura domini regis_[x]; and are directed by a variety of subsequent statutes to be kept in the exchequer, and all weights and measures to be made conformable thereto[y]. but, as sir edward coke observes[z], though this hath so often by authority of parliament been enacted, yet it could never be effected; so forcible is custom with the multitude, when it hath gotten an head. [footnote p: _gr. coustum._ _c._ 16.] [footnote q: _cap._ 8.] [footnote r: william of malmsb. _in vita hen. i._ spelm. _hen. i. ap._ wilkins. 299.] [footnote s: hoved. matth. paris.] [footnote t: hoved. _a.d._ 1201.] [footnote u: 9 hen. iii. c. 25.] [footnote w: _plac. 35 edw. i. apud_ cowel's interpr. _tit. pondus regis._] [footnote x: _flet._ 2. 12.] [footnote y: 14 edw. iii. st. 1. c. 12. 25 edw. iii. st. 5. c. 10. 16 ric. ii. c. 3. 8 hen. vi. c. 5. 11 hen. vi. c. 8. 11 hen. vii. c. 4. 22 car. ii. c. 8.] [footnote z: 2 inst. 41.] thirdly, as money is the medium of commerce, it is the king's prerogative, as the arbiter of domestic commerce, to give it authority or make it current. money is an universal medium, or common standard, by comparison with which the value of all merchandize may be ascertained: or it is a sign, which represents the respective values of all commodities. metals are well calculated for this sign, because they are durable and are capable of many subdivisions: and a precious metal is still better calculated for this purpose, because it is the most portable. a metal is also the most proper for a common measure, because it can easily be reduced to the same standard in all nations: and every particular nation fixes on it it's own impression, that the weight and standard (wherein consists the intrinsic value) may both be known by inspection only. as the quantity of precious metals increases, that is, the more of them there is extracted from the mine, this universal medium or common sign will sink in value, and grow less precious. above a thousand millions of bullion are calculated to have been imported into europe from america within less than three centuries; and the quantity is daily increasing. the consequence is, that more money must be given now for the same commodity than was given an hundred years ago. and, if any accident was to diminish the quantity of gold and silver, their value would proportionably rise. a horse, that was formerly worth ten pounds, is now perhaps worth twenty; and, by any failure of current specie, the price may be reduced to what it was. yet is the horse in reality neither dearer nor cheaper at one time than another: for, if the metal which constitutes the coin was formerly twice as scarce as at present, the commodity was then as dear at half the price, as now it is at the whole. the coining of money is in all states the act of the sovereign power; for the reason just mentioned, that it's value may be known on inspection. and with respect to coinage in general, there are three things to be considered therein; the materials, the impression, and the denomination. with regard to the materials, sir edward coke lays it down[a], that the money of england must either be of gold or silver; and none other was ever issued by the royal authority till 1672, when copper farthings and half-pence were coined by king charles the second, and ordered by proclamation to be current in all payments, under the value of six-pence, and not otherwise. but this copper coin is not upon the same footing with the other in many respects, particularly with regard to the offence of counterfeiting it. [footnote a: 2 inst. 577.] as to the impression, the stamping thereof is the unquestionable prerogative of the crown: for, though divers bishops and monasteries had formerly the privilege of coining money, yet, as sir matthew hale observes[b], this was usually done by special grant from the king, or by prescription which supposes one; and therefore was derived from, and not in derogation of, the royal prerogative. besides that they had only the profit of the coinage, and not the power of instituting either the impression or denomination; but had usually the stamp sent them from the exchequer. [footnote b: 1 hist. p.c. 191.] the denomination, or the value for which the coin is to pass current, is likewise in the breast of the king; and, if any unusual pieces are coined, that value must be ascertained by proclamation. in order to fix the value, the weight, and the fineness of the metal are to be taken into consideration together. when a given weight of gold or silver is of a given fineness, it is then of the true standard, and called sterling metal; a name for which there are various reasons given[c], but none of them entirely satisfactory. and of this sterling metal all the coin of the kingdom must be made by the statute 25 edw. iii. c. 13. so that the king's prerogative seemeth not to extend to the debasing or inhancing the value of the coin, below or above the sterling value[d]: though sir matthew hale[e] appears to be of another opinion. the king may also, by his proclamation, legitimate foreign coin, and make it current here; declaring at what value it shall be taken in payments[f]. but this, i apprehend, ought to be by comparison with the standard of our own coin; otherwise the consent of parliament will be necessary. there is at present no such legitimated money; portugal coin being only current by private consent, so that any one who pleases may refuse to take it in payment. the king may also at any time decry, or cry down, any coin of the kingdom, and make it no longer current[g]. [footnote c: spelm. gloss. 203.] [footnote d: 2 inst. 577.] [footnote e: 1 h.p.c. 194.] [footnote f: _ibid._ 197.] [footnote g: _ibid._] vi. the king is, lastly, considered by the laws of england as the head and supreme governor of the national church. to enter into the reasons upon which this prerogative is founded is matter rather of divinity than of law. i shall therefore only observe that by statute 26 hen. viii. c. 1. (reciting that the king's majesty justly and rightfully is and ought to be the supreme head of the church of england; and so had been recognized by the clergy of this kingdom in their convocation) it is enacted, that the king shall be reputed the only supreme head in earth of the church of england, and shall have, annexed to the imperial crown of this realm, as well the titles and stile thereof, as all jurisdictions, authorities, and commodities, to the said dignity of supreme head of the church appertaining. and another statute to the same purport was made, 1 eliz. c. 1. in virtue of this authority the king convenes, prorogues, restrains, regulates, and dissolves all ecclesiastical synods or convocations. this was an inherent prerogative of the crown, long before the time of henry viii, as appears by the statute 8 hen. vi. c. 1. and the many authors, both lawyers and historians, vouched by sir edward coke[h]. so that the statute 25 hen. viii. c. 19. which restrains the convocation from making or putting in execution any canons repugnant to the king's prerogative, or the laws, customs, and statutes of the realm, was merely declaratory of the old common law: that part of it only being new, which makes the king's royal assent actually necessary to the validity of every canon. the convocation or ecclesiastical synod, in england, differs considerably in it's constitution from the synods of other christian kingdoms: those consisting wholly of bishops; whereas with us the convocation is the miniature of a parliament, wherein the archbishop presides with regal state; the upper house of bishops represents the house of lords; and the lower house, composed of representatives of the several dioceses at large, and of each particular chapter therein, resembles the house of commons with it's knights of the shire and burgesses[i]. this constitution is said to be owing to the policy of edward i; who thereby at one and the same time let in the inferior clergy to the privilege of forming ecclesiastical canons, (which before they had not) and also introduced a method of taxing ecclesiastical benefices, by consent of convocation[k]. [footnote h: 4 inst. 322, 323.] [footnote i: in the diet of sweden, where the ecclesiastics form one of the branches of the legislature, the chamber of the clergy resembles the convocation of england. it is composed of the bishops and superintendants; and also of deputies, one of which is chosen by every ten parishes or rural deanry. mod. un. hist. xxxiii. 18.] [footnote k: gilb. hist. of exch. c. 4.] from this prerogative also of being the head of the church arises the king's right of nomination to vacant bishopricks, and certain other ecclesiastical preferments; which will better be considered when we come to treat of the clergy. i shall only here observe, that this is now done in consequence of the statute 25 hen. viii. c. 20. as head of the church, the king is likewise the _dernier resort_ in all ecclesiastical causes; an appeal lying ultimately to him in chancery from the sentence of every ecclesiastical judge: which right was restored to the crown by statute 25 hen. viii. c. 19. as will more fully be shewn hereafter. chapter the eighth. of the king's revenue. having, in the preceding chapter, considered at large those branches of the king's prerogative, which contribute to his royal dignity, and constitute the executive power of the government, we proceed now to examine the king's _fiscal_ prerogatives, or such as regard his _revenue_; which the british constitution hath vested in the royal person, in order to support his dignity and maintain his power: being a portion which each subject contributes of his property, in order to secure the remainder. this revenue is either ordinary, or extraordinary. the king's ordinary revenue is such, as has either subsisted time out of mind in the crown; or else has been granted by parliament, by way of purchase or exchange for such of the king's inherent hereditary revenues, as were found inconvenient to the subject. when i say that it has subsisted time out of mind in the crown, i do not mean that the king is at present in the actual possession of the whole of this revenue. much (nay, the greatest part) of it is at this day in the hands of subjects; to whom it has been granted out from time to time by the kings of england: which has rendered the crown in some measure dependent on the people for it's ordinary support and subsistence. so that i must be obliged to recount, as part of the royal revenue, what lords of manors and other subjects frequently look upon to be their own absolute rights, because they are and have been vested in them and their ancestors for ages, though in reality originally derived from the grants of our antient princes. i. the first of the king's ordinary revenues, which i shall take notice of, is of an ecclesiastical kind; (as are also the three succeeding ones) viz. the custody of the temporalties of bishops; by which are meant all the lay revenues, lands, and tenements (in which is included his barony) which belong to an archbishop's or bishop's see. and these upon the vacancy of the bishoprick are immediately the right of the king, as a consequence of his prerogative in church matters; whereby he is considered as the founder of all archbishopricks and bishopricks, to whom during the vacancy they revert. and for the same reason, before the dissolution of abbeys, the king had the custody of the temporalties of all such abbeys and priories as were of royal foundation (but not of those founded by subjects) on the death of the abbot or prior[a]. another reason may also be given, why the policy of the law hath vested this custody in the king; because, as the successor is not known, the lands and possessions of the see would be liable to spoil and devastation, if no one had a property therein. therefore the law has given the king, not the temporalties themselves, but the _custody_ of the temporalties, till such time as a successor is appointed; with power of taking to himself all the intermediate profits, without any account to the successor; and with the right of presenting (which the crown very frequently exercises) to such benefices and other preferments as fall within the time of vacation[b]. this revenue is of so high a nature, that it could not be granted out to a subject, before, or even after, it accrued: but now by the statute 14 edw. iii. st. 4. c. 4 & 5. the king may, after the vacancy, lease the temporalties to the dean and chapter; saving to himself all advowsons, escheats, and the like. our antient kings, and particularly william rufus, were not only remarkable for keeping the bishopricks a long time vacant, for the sake of enjoying the temporalties, but also committed horrible waste on the woods and other parts of the estate; and, to crown all, would never, when the see was filled up, restore to the bishop his temporalties again, unless he purchased them at an exorbitant price. to remedy which, king henry the first[c] granted a charter at the beginning of his reign, promising neither to sell, nor let to farm, nor take any thing from, the domains of the church, till the successor was installed. and it was made one of the articles of the great charter[d], that no waste should be committed in the temporalties of bishopricks, neither should the custody of them be sold. the same is ordained by the statute of westminster the first[e]; and the statute 14 edw. iii. st. 4. c. 4. (which permits, as we have seen, a lease to the dean and chapter) is still more explicit in prohibiting the other exactions. it was also a frequent abuse, that the king would for trifling, or no causes, seise the temporalties of bishops, even during their lives, into his own hands: but this is guarded against by statute 1 edw. iii. st. 2. c. 2. [footnote a: 2 inst. 15.] [footnote b: stat. 17 edw. ii. c. 14. f.n.b. 32.] [footnote c: matth. paris.] [footnote d: 9 hen. iii. c. 5.] [footnote e: 3 edw. i. c. 21.] this revenue of the king, which was formerly very considerable, is now by a customary indulgence almost reduced to nothing: for, at present, as soon as the new bishop is consecrated and confirmed, he usually receives the restitution of his temporalties quite entire, and untouched, from the king; and then, and not sooner, he has a fee simple in his bishoprick, and may maintain an action for the same[f]. [footnote f: co. litt. 67. 341.] ii. the king is entitled to a corody, as the law calls it, out of every bishoprick: that is, to send one of his chaplains to be maintained by the bishop, or to have a pension allowed him till the bishop promotes him to a benefice[g]. this is also in the nature of an acknowlegement to the king, as founder of the see; since he had formerly the same corody or pension from every abbey or priory of royal foundation. it is, i apprehend, now fallen into total disuse; though sir matthew hale says[h], that it is due of common right, and that no prescription will discharge it. [footnote g: f.n.b. 230.] [footnote h: notes on f.n.b. above cited.] iii. the king also (as was formerly observed[i]) is entitled to all the tithes arising in extraparochial places[k]: though perhaps it may be doubted how far this article, as well as the last, can be properly reckoned a part of the king's own royal revenue; since a corody supports only his chaplains, and these extraparochial tithes are held under an implied trust, that the king will distribute them for the good of the clergy in general. [footnote i: page 110.] [footnote k: 2 inst. 647.] iv. the next branch consists in the first-fruits, and tenths, of all spiritual preferments in the kingdom; both of which i shall consider together. these were originally a part of the papal usurpations over the clergy of this kingdom; first introduced by pandulph the pope's legate, during the reigns of king john and henry the third, in the see of norwich; and afterwards attempted to be made universal by the popes clement v and john xxii, about the beginning of the fourteenth century. the first-fruits, _primitiae_, or _annates_, were the first year's whole profits of the spiritual preferment, according to a rate or _valor_ made under the direction of pope innocent iv by walter bishop of norwich in 38 hen. iii, and afterwards advanced in value by commission from pope nicholas the third, _a.d._ 1292, 20 edw. i[l]; which valuation of pope nicholas is still preserved in the exchequer[m]. the tenths, or _decimae_, were the tenth part of the annual profit of each living by the same valuation; which was also claimed by the holy see, under no better pretence than a strange misapplication of that precept of the levitical law, which directs[n], "that the levites should offer the tenth part of their tithe as a heave-offering to the lord, and give it to aaron the _high_ priest." but this claim of the pope met with vigorous resistance from the english parliament; and a variety of acts were passed to prevent and restrain it, particularly the statute 6 hen. iv. c. 1. which calls it a horrible mischief and damnable custom. but the popish clergy, blindly devoted to the will of a foreign master, still kept it on foot; sometimes more secretly, sometimes more openly and avowedly: so that, in the reign of henry viii, it was computed, that in the compass of fifty years 800000 ducats had been sent to rome for first-fruits only. and, as the clergy expressed this willingness to contribute so much of their income to the head of the church, it was thought proper (when in the same reign the papal power was abolished, and the king was declared the head of the church of england) to annex this revenue to the crown; which was done by statute 26 hen. viii. c. 3. (confirmed by statute 1 eliz. c. 4.) and a new _valor beneficiorum_ was then made, by which the clergy are at present rated. [footnote l: f.n.b. 176.] [footnote m: 3 inst. 154.] [footnote n: numb. 18. 26.] by these lastmentioned statutes all vicarages under ten pounds a year, and all rectories under ten marks, are discharged from the payment of first-fruits: and if, in such livings as continue chargeable with this payment, the incumbent lives but half a year, he shall pay only one quarter of his first-fruits; if but one whole year, then half of them; if a year and half, three quarters; and if two years, then the whole; and not otherwise. likewise by the statute 27 hen. viii. c. 8. no tenths are to be paid for the first year, for then the first-fruits are due: and by other statutes of queen anne, in the fifth and sixth years of her reign, if a benefice be under fifty pounds _per annum_ clear yearly value, it shall be discharged of the payment of first-fruits and tenths. thus the richer clergy, being, by the criminal bigotry of their popish predecessors, subjected at first to a foreign exaction, were afterwards, when that yoke was shaken off, liable to a like misapplication of their revenues, through the rapacious disposition of the then reigning monarch: till at length the piety of queen anne restored to the church what had been thus indirectly taken from it. this she did, not by remitting the tenths and first-fruits entirely; but, in a spirit of the truest equity, by applying these superfluities of the larger benefices to make up the deficiences of the smaller. and to this end she granted her royal charter, which was confirmed by the statute 2 ann. c. 11. whereby all the revenue of first-fruits and tenths is vested in trustees for ever, to form a perpetual fund for the augmentation of poor livings. this is usually called queen anne's bounty; which has been still farther regulated by subsequent statutes, too numerous here to recite. v. the next branch of the king's ordinary revenue (which, as well as the subsequent branches, is of a lay or temporal nature) consists in the rents and profits of the demesne lands of the crown. these demesne lands, _terrae dominicales regis_, being either the share reserved to the crown at the original distribution of landed property, or such as came to it afterwards by forfeitures or other means, were antiently very large and extensive; comprizing divers manors, honors, and lordships; the tenants of which had very peculiar privileges, as will be shewn in the second book of these commentaries, when we speak of the tenure in antient demesne. at present they are contracted within a very narrow compass, having been almost entirely granted away to private subjects. this has occasioned the parliament frequently to interpose; and, particularly, after king william iii had greatly impoverished the crown, an act passed[o], whereby all future grants or leases from the crown for any longer term than thirty one years or three lives are declared to be void; except with regard to houses, which may be granted for fifty years. and no reversionary lease can be made, so as to exceed, together with the estate in being, the same term of three lives or thirty one years: that is, where there is a subsisting lease, of which there are twenty years still to come, the king cannot grant a future interest, to commence after the expiration of the former, for any longer term than eleven years. the tenant must also be made liable to be punished for committing waste; and the usual rent must be reserved, or, where there has usually been no rent, one third of the clear yearly value[p]. the misfortune is, that this act was made too late, after almost every valuable possession of the crown had been granted away for ever, or else upon very long leases; but may be of benefit to posterity, when those leases come to expire. [footnote o: 1 ann. st. 1. c. 7.] [footnote p: in like manner, by the civil law, the inheritances or _fundi patrimoniales_ of the imperial crown could not be alienated, but only let to farm. _cod._ _l._ 11. _t._ 61.] vi. hither might have been referred the advantages which were used to arise to the king from the profits of his military tenures, to which most lands in the kingdom were subject, till the statute 12 car. ii. c. 24. which in great measure abolished them all: the explication of the nature of which tenures, must be referred to the second book of these commentaries. hither also might have been referred the profitable prerogative of purveyance and pre-emption: which was a right enjoyed by the crown of buying up provisions and other necessaries, by the intervention of the king's purveyors, for the use of his royal houshold, at an appraised valuation, in preference to all others, and even without consent of the owner; and also of forcibly impressing the carriages and horses of the subject, to do the king's business on the publick roads, in the conveyance of timber, baggage, and the like, however inconvenient to the proprietor, upon paying him a settled price. a prerogative, which prevailed pretty generally throughout europe, during the scarcity of gold and silver, and the high valuation of money consequential thereupon. in those early times the king's houshold (as well as those of inferior lords) were supported by specific renders of corn, and other victuals, from the tenants of the respective demesnes; and there was also a continual market kept at the palace gate to furnish viands for the royal use[q]. and this answered all purposes, in those ages of simplicity, so long as the king's court continued in any certain place. but when it removed from one part of the kingdom to another (as was formerly very frequently done) it was found necessary to send purveyors beforehand, to get together a sufficient quantity of provisions and other necessaries for the houshold: and, lest the unusual demand should raise them to an exorbitant price, the powers beforementioned were vested in these purveyors; who in process of time very greatly abused their authority, and became a great oppression to the subject though of little advantage to the crown; ready money in open market (when the royal residence was more permanent, and specie began to be plenty) being found upon experience to be the best proveditor of any. wherefore by degrees the powers of purveyance have declined, in foreign countries as well as our own; and particularly were abolished in sweden by gustavus adolphus, toward the beginning of the last century[r]. and, with us in england, having fallen into disuse during the suspension of monarchy, king charles at his restoration consented, by the same statute, to resign intirely these branches of his revenue and power, for the ease and convenience of his subjects: and the parliament, in part of recompense, settled on him, his heirs, and successors, for ever, the hereditary excise of fifteen pence _per_ barrel on all beer and ale sold in the kingdom, and a proportionable sum for certain other liquors. so that this hereditary excise, the nature of which shall be farther explained in the subsequent part of this chapter, now forms the sixth branch of his majesty's ordinary revenue. [footnote q: 4 inst. 273.] [footnote r: mod. un. hist. xxxiii. 220.] vii. a seventh branch might also be computed to have arisen from wine licences; or the rents payable to the crown by such persons as are licensed to sell wine by retale throughout england, except in a few privileged places. these were first settled on the crown by the statute 12 car. ii. c. 25. and, together with the hereditary excise, made up the equivalent in value for the loss sustained by the prerogative in the abolition of the military tenures, and the right of pre-emption and purveyance: but this revenue was abolished by the statute 30 geo. ii. c. 19. and an annual sum of upwards of â£7000 _per annum_, issuing out of the new stamp duties imposed on wine licences, was settled on the crown in it's stead. viii. an eighth branch of the king's ordinary revenue is usually reckoned to consist in the profits arising from his forests. forests are waste grounds belonging to the king, replenished with all manner of beasts of chase or venary; which are under the king's protection, for the sake of his royal recreation and delight: and, to that end, and for preservation of the king's game, there are particular laws, privileges, courts and officers belonging to the king's forests; all which will be, in their turns, explained in the subsequent books of these commentaries. what we are now to consider are only the profits arising to the king from hence; which consist principally in amercements or fines levied for offences against the forest-laws. but as few, if any courts of this kind for levying amercements have been held since 1632, 8 car. i. and as, from the accounts given of the proceedings in that court by our histories and law books[s], nobody would now wish to see them again revived, it is needless (at least in this place) to pursue this enquiry any farther. [footnote s: 1 jones. 267-298.] ix. the profits arising from the king's ordinary courts of justice make a ninth branch of his revenue. and these consist not only in fines imposed upon offenders, forfeitures of recognizances, and amercements levied upon defaulters; but also in certain fees due to the crown in a variety of legal matters, as, for setting the great seal to charters, original writs, and other legal proceedings, and for permitting fines to be levied of lands in order to bar entails, or otherwise to insure their title. as none of these can be done without the immediate intervention of the king, by himself or his officers, the law allows him certain perquisites and profits, as a recompense for the trouble he undertakes for the public. these, in process of time, have been almost all granted out to private persons, or else appropriated to certain particular uses: so that, though our law-proceedings are still loaded with their payment, very little of them is now returned into the king's exchequer; for a part of whose royal maintenance they were originally intended. all future grants of them however, by the statute 1 ann. st. 2. c. 7. are to endure for no longer time than the prince's life who grants them. x. a tenth branch of the king's ordinary revenue, said to be grounded on the consideration of his guarding and protecting the seas from pirates and robbers, is the right to _royal fish_, which are whale and sturgeon: and these, when either thrown ashore, or caught near the coasts, are the property of the king, on account[t] of their superior excellence. indeed our ancestors seem to have entertained a very high notion of the importance of this right; it being the prerogative of the kings of denmark and the dukes of normandy[u]; and from one of these it was probably derived to our princes. it is expressly claimed and allowed in the statute _de praerogativa regis_[w]: and the most antient treatises of law now extant make mention of it[x]; though they seem to have made a distinction between whale and sturgeon, as was incidentally observed in a former chapter[y]. [footnote t: plowd. 315.] [footnote u: stiernh. _de jure sueonum._ _l._ 2. _c._ 8. _gr. coustum._ _cap._ 17.] [footnote w: 17 edw. ii. c. 11.] [footnote x: bracton. _l._ 3. _c._ 3. britton. _c._ 17. fleta. _l._ 1. _c._ 45 & 46.] [footnote y: ch. 4. pag. 216.] xi. another maritime revenue, and founded partly upon the same reason, is that of shipwrecks; which are also declared to be the king's property by the same prerogative statute 17 edw. ii. c. 11. and were so, long before, at the common law. it is worthy observation, how greatly the law of wrecks has been altered, and the rigour of it gradually softened, in favour of the distressed proprietors. wreck, by the antient common law, was where any ship was lost at sea, and the goods or cargo were thrown upon the land; in which case these goods, so wrecked, were adjudged to belong to the king: for it was held, that, by the loss of the ship, all property was gone out of the original owner[z]. but this was undoubtedly adding sorrow to sorrow, and was consonant neither to reason nor humanity. wherefore it was first ordained by king henry i, that if any person escaped alive out of the ship it should be no wreck[a]; and afterwards king henry ii, by his charter[b], declared, that if on the coasts of either england, poictou, oleron, or gascony, any ship should be distressed, and either man or beast should escape or be found therein alive, the goods should remain to the owners, if they claimed them within three months; but otherwise should be esteemed a wreck, and should belong to the king, or other lord of the franchise. this was again confirmed with improvements by king richard the first, who, in the second year of his reign[c], not only established these concessions, by ordaining that the owner, if he was shipwrecked and escaped, "_omnes res suas liberas et quietas haberet_," but also, that, if he perished, his children, or in default of them his brethren and sisters, should retain the property; and, in default of brother or sister, then the goods should remain to the king[d]. and the law, so long after as the reign of henry iii, seems still to have been guided by the same equitable provisions. for then if a dog (for instance) escaped, by which the owner might be discovered, or if any certain mark were set on the goods, by which they might be known again, it was held to be no wreck[e]. and this is certainly most agreeable to reason; the rational claim of the king being only founded upon this, that the true owner cannot be ascertained. but afterwards, in the statute of westminster the first[f], the law is laid down more agreeable to the charter of king henry the second: and upon that statute hath stood the legal doctrine of wrecks to the present time. it enacts, that if any live thing escape (a man, a cat, or a dog; which, as in bracton, are only put for examples[g],) in this case, and, as it seems, in this case only, it is clearly not a legal wreck: but the sheriff of the county is bound to keep the goods a year and a day (as in france for one year, agreeably to the maritime laws of oleron[h], and in holland for a year and an half) that if any man can prove a property in them, either in his own right or by right of representation[i], they shall be restored to him without delay; but, if no such property be proved within that time, they then shall be the king's. if the goods are of a perishable nature, the sheriff may sell them, and the money shall be liable in their stead[k]. this revenue of wrecks is frequently granted out to lords of manors, as a royal franchise; and if any one be thus entitled to wrecks in his own land, and the king's goods are wrecked thereon, the king may claim them at any time, even after the year and day[l]. [footnote z: dr & st. d. 2. c. 51.] [footnote a: spelm. _cod. apud_ wilkins. 305.] [footnote b: 26 may, _a.d._ 1174. 1 rym. _foed._ 36.] [footnote c: rog. hoved. _in ric. i_.] [footnote d: in like manner constantine the great, finding that by the imperial law the revenue of wrecks was given to the prince's treasury or _fiscus_, restrained it by an edict (_cod._ 11. 5. 1.) and ordered them to remain to the owners; adding this humane expostulation, "_quod enim jus habet fiscus in aliena calamitate, ut de re tam luctuosa compendium sectetur?_"] [footnote e: bract. _l._ 3. _c._ 3.] [footnote f: 3 edw. i. c. 4.] [footnote g: flet. 1. _c._ 44. 2 inst. 167.] [footnote h: â§. 28.] [footnote i: 2 inst. 168.] [footnote k: plowd. 166.] [footnote l: 2 inst. 168. bro. abr. _tit. wreck_.] it is to be observed, that in order to constitute a legal _wreck_, the goods must come to land. if they continue at sea, the law distinguishes them by the barbarous and uncouth appellations of _jetsam_, _flotsam_, and _ligan_. jetsam is where goods are cast into the sea, and there sink and remain under water: flotsam is where they continue swimming on the surface of the waves: ligan is where they are sunk in the sea, but tied to a cork or buoy, in order to be found again[m]. these are also the king's, if no owner appears to claim them; but, if any owner appears, he is entitled to recover the possession. for even if they be cast overboard, without any mark or buoy, in order to lighten the ship, the owner is not by this act of necessity construed to have renounced his property[n]: much less can things ligan be supposed to be abandoned, since the owner has done all in his power, to assert and retain his property. these three are therefore accounted so far a distinct thing from the former, that by the king's grant to a man of wrecks, things jetsam, flotsam, and ligan will not pass[o]. [footnote m: 5 rep. 106.] [footnote n: _quae enim res in tempestate, levandae navis causa, ejiciuntur, hac dominorum permanent. quia palam est, eas non eo animo ejici, quod quis habere nolit._ _inst._ 2. 1. â§. 48.] [footnote o: 5 rep. 108.] wrecks, in their legal acceptation, are at present not very frequent: it rarely happening that every living creature on board perishes; and if any should survive, it is a very great chance, since the improvement of commerce, navigation, and correspondence, but the owner will be able to assert his property within the year and day limited by law. and in order to preserve this property entire for him, and if possible to prevent wrecks at all, our laws have made many very humane regulations; in a spirit quite opposite to those savage laws, which formerly prevailed in all the northern regions of europe, and a few years ago were still laid to subsist on the coasts of the baltic sea, permitting the inhabitants to seize on whatever they could get as lawful prize; or, as an author of their own expresses it, "_in naufragorum miseria et calamitate tanquam vultures ad praedam currere_[p]." for by the statute 2 edw. iii. c. 13. if any ship be lost on the shore, and the goods come to land (so as it be not legal wreck) they shall be presently delivered to the merchants, they paying only a reasonable reward to those that saved and preserved them, which is intitled _salvage_. also by the common law, if any persons (other than the sheriff) take any goods so cast on shore, which are not legal wreck, the owners might have a commission to enquire and find them out, and compel them to make restitution[q]. and by statute 12 ann. st. 2. c. 18. confirmed by 4 geo. i. c. 12. in order to assist the distressed, and prevent the scandalous illegal practices on some of our sea coasts, (too similar to those on the baltic) it is enacted, that all head-officers and others of towns near the sea shall, upon application made to them, summon as many hands as are necessary, and send them to the relief of any ship in distress, on forfeiture of 100_l._ and, in case of assistance given, salvage shall be paid by the owners, to be assessed by three neighbouring justices. all persons that secrete any goods shall forfeit their treble value: and if they wilfully do any act whereby the ship is lost or destroyed, by making holes in her, stealing her pumps, or otherwise, they are guilty of felony, without benefit of clergy. lastly, by the statute 26 geo. ii. c. 19. plundering any vessel either in distress, or wrecked, and whether any living creature be on board or not, (for, whether wreck or otherwise, it is clearly not the property of the populace) such plundering, i say, or preventing the escape of any person that endeavors to save his life, or wounding him with intent to destroy him, or putting out false lights in order to bring any vessel into danger, are all declared to be capital felonies; in like manner as the destroying trees, steeples, or other stated seamarks, is punished by the statute 8 eliz. c. 13. with a forfeiture of 200_l._ moreover, by the statute of george ii, pilfering any goods cast ashore is declared to be petty larceny; and many other salutary regulations are made, for the more effectually preserving ships of any nation in distress[r]. [footnote p: stiernh. _de jure sueon._ _l._ 3. _c._ 5.] [footnote q: f.n.b. 112.] [footnote r: by the civil law, to destroy persons shipwrecked, or prevent their saving the ship, is capital. and to steal even a plank from a vessel in distress, or wrecked, makes the party liable to answer for the whole ship and cargo. (_ff._ 47. 9. 3.) the laws also of the wisigoths, and the most early neapolitan constitutions, punished with the utmost severity all those who neglected to assist any ship in distress, or plundered any goods cast on shore. (lindenbrog. _cod. ll. antiq._ 146. 715.)] xii. a twelfth branch of the royal revenue, the right to mines, has it's original from the king's prerogative of coinage, in order to supply him with materials: and therefore those mines, which are properly royal, and to which the king is entitled when found, are only those of silver and gold[s]. by the old common law, if gold or silver be found in mines of base metal, according to the opinion of some the whole was a royal mine, and belonged to the king; though others held that it only did so, if the quantity of gold or silver was of greater value than the quantity of base metal[t]. but now by the statutes 1 w. & m. st. 1. c. 30. and 5 w. & m. c. 6. this difference is made immaterial; it being enacted, that no mines of copper, tin, iron, or lead, shall be looked upon as royal mines, notwithstanding gold or silver may be extracted from them in any quantities: but that the king, or persons claiming royal mines under his authority, may have the ore, (other than tin-ore in the counties of devon and cornwall) paying for the same a price stated in the act. this was an extremely reasonable law: for now private owners are not discouraged from working mines, through a fear that they may be claimed as royal ones; neither does the king depart from the just rights of his revenue, since he may have all the precious metal contained in the ore, paying no more for it than the value of the base metal which it is supposed to be; to which base metal the land-owner is by reason and law entitled. [footnote s: 2 inst. 577.] [footnote t: plowd. 566.] xiii. to the same original may in part be referred the revenue of treasure-trove (derived from the french word, _trover_, to find) called in latin _thesaurus inventus_, which is where any money or coin, gold, silver, plate, or bullion, is found hidden _in_ the earth, or other private place, the owner thereof being unknown; in which case the treasure belongs to the king: but if he that hid it be known, or afterwards found out, the owner and not the king is entitled to it[u]. also if it be found in the sea, or _upon_ the earth, it doth not belong to the king, but the finder, if no owner appears[w]. so that it seems it is the _hiding_, not the _abandoning_ of it, that gives the king a property: bracton[x] defining it, in the words of the civilians, to be "_vetus depositio pecuniae_." this difference clearly arises from the different intentions, which the law implies in the owner. a man, that hides his treasure in a secret place, evidently does not mean to relinquish his property; but reserves a right of claiming it again, when he sees occasion; and, if he dies and the secret also dies with him, the law gives it the king, in part of his royal revenue. but a man that scatters his treasure into the sea, or upon the public surface of the earth, is construed to have absolutely abandoned his property, and returned it into the common stock, without any intention of reclaiming it; and therefore it belongs, as in a state of nature, to the first occupant, or finder; unless the owner appear and assert his right, which then proves that the loss was by accident, and not with an intent to renounce his property. [footnote u: 3 inst. 132. dalt. sheriffs. c. 16.] [footnote w: britt. c. 17. finch. l. 177.] [footnote x: _l._ 3. _c._ 3. â§. 4.] formerly all treasure-trove belonged to the finder[y]; as was also the rule of the civil law[z]. afterwards it was judged expedient for the purposes of the state, and particularly for the coinage, to allow part of what was so found to the king; which part was assigned to be all _hidden_ treasure; such as is _casually lost_ and unclaimed, and also such as is _designedly abandoned_, still remaining the right of the fortunate finder. and that the prince shall be entitled to this hidden treasure is now grown to be, according to grotius[a], "_jus commune, et quasi gentium_:" for it is not only observed, he adds, in england, but in germany, france, spain, and denmark. the finding of deposited treasure was much more frequent, and the treasures themselves more considerable, in the infancy of our constitution than at present. when the romans, and other inhabitants of the respective countries which composed their empire, were driven out by the northern nations, they concealed their money under-ground; with a view of resorting to it again when the heat of the irruption should be over, and the invaders driven back to their desarts. but as this never happened, the treasures were never claimed; and on the death of the owners the secret also died along with them. the conquering generals, being aware of the value of these hidden mines, made it highly penal to secrete them from the public service. in england therefore, as among the feudists[b], the punishment of such as concealed from the king the finding of hidden treasure was formerly no less than death; but now it is only fine and imprisonment[c]. [footnote y: bracton. _l._ 3. _c._ 3. 3 inst. 133.] [footnote z: _ff._ 41. 1. 31.] [footnote a: _de jur. b. & p._ _l._ 2. _c._ 8. â§. 7.] [footnote b: glanv. _l._ 1. _c._ 2. crag. 1. 16. 40.] [footnote c: 3 inst. 133.] xiv. waifs, _bona waviata_, are goods stolen, and waived or thrown away by the thief in his flight, for fear of being apprehended. these are given to the king by the law, as a punishment upon the owner, for not himself pursuing the felon, and taking away his goods from him[d]. and therefore if the party robbed do his diligence immediately to follow and apprehend the thief (which is called making fresh _suit_) or do convict him afterwards, or procure evidence to convict him, he shall have his goods again[e]. waived goods do also not belong to the king, till seised by somebody for his use; for if the party robbed can seise them first, though at the distance of twenty years, the king shall never have them[f]. if the goods are hid by the thief, or left any where by him, so that he had them not about him when he fled, and therefore did not throw them away in his flight; these also are not _bona waviata_, but the owner may have them again when he pleases[g]. the goods of a foreign merchant, though stolen and thrown away in flight, shall never be waifs[h]: the reason whereof may be, not only for the encouragement of trade, but also because there is no wilful default in the foreign merchant's not pursuing the thief, he being generally a stranger to our laws, our usages, and our language. [footnote d: cro. eliz. 694.] [footnote e: finch. l. 212.] [footnote f: _ibid._] [footnote g: 5 rep. 109.] [footnote h: fitzh. _abr. tit. estray._ 1. 3 bulstr. 19.] xv. estrays are such valuable animals as are found wandering in any manor or lordship, and no man knoweth the owner of them; in which case the law gives them to the king as the general owner and lord paramount of the soil, in recompence for the damage which they may have done therein; and they now most commonly belong to the lord of the manor, by special grant from the crown. but in order to vest an absolute property in the king or his grantees, they must be proclaimed in the church and two market towns next adjoining to the place where they are found; and then, if no man claims them, after proclamation and a year and a day passed, they belong to the king or his substitute without redemption[i]; even though the owner were a minor, or under any other legal incapacity[k]. a provision similar to which obtained in the old gothic constitution, with regard to all things that were found, which were to be thrice proclaimed, _primum coram comitibus et viatoribus obviis, deinde in proxima villa vel pago, postremo coram ecclesia vel judicio_: and the space of a year was allowed for the owner to reclaim his property[l]. if the owner claims them within the year and day, he must pay the charges of finding, keeping, and proclaiming them[m]. the king or lord has no property till the year and day passed: for if a lord keepeth an estray three quarters of a year, and within the year it strayeth again, and another lord getteth it, the first lord cannot take it again[n]. any beast may be an estray, that is by nature tame or reclaimable, and in which there is a valuable property, as sheep, oxen, swine, and horses, which we in general call cattle; and so fleta[o] defines it, _pecus vagans, quod nullus petit, sequitur, vel advocat_. for animals upon which the law sets no value, as a dog or cat, and animals _ferae naturae_, as a bear or wolf, cannot be considered as estrays. so swans may be estrays, but not any other fowl[p]; whence they are said to be royal fowl. the reason of which distinction seems to be, that, cattle and swans being of a reclaimed nature, the owner's property in them is not lost merely by their temporary escape; and they also, from their intrinsic value, are a sufficient pledge for the expense of the lord of the franchise in keeping them the year and day. for he that takes an estray is bound, so long as he keeps it, to find it in provisions and keep it from damage[q]; and may not use it by way of labour, but is liable to an action for so doing[r]. yet he may milk a cow, or the like, for that tends to the preservation, and is for the benefit, of the animal[s]. [footnote i: mirr. c. 3. â§. 19.] [footnote k: 5 rep. 108. bro. _abr. tit. estray._ cro. eliz. 716.] [footnote l: stiernh. _de jur. gothor._ _l._ 3. _c._ 5.] [footnote m: dalt. sh. 79.] [footnote n: finch. l. 177.] [footnote o: _l._ 1. _c._ 43.] [footnote p: 7 rep. 17.] [footnote q: 1 roll. abr. 889.] [footnote r: cro. jac. 147.] [footnote s: cro. jac. 148. noy. 119.] besides the particular reasons before given why the king should have the several revenues of royal fish, shipwrecks, treasure-trove, waifs, and estrays, there is also one general reason which holds for them all; and that is, because they are _bona vacantia_, or goods in which no one else can claim a property. and therefore by the law of nature they belonged to the first occupant or finder; and so continued under the imperial law. but, in settling the modern constitutions of most of the governments in europe, it was thought proper (to prevent that strife and contention, which the mere title of occupancy is apt to create and continue, and to provide for the support of public authority in a manner the least burthensome to individuals) that these rights should be annexed to the supreme power by the positive laws of the state. and so it came to pass that, as bracton expresses it[t], _haec, quae nullius in bonis sunt, et olim fuerunt inventoris de jure naturali, jam efficiuntur principis de jure gentium_. [footnote t: _l._ 1. _c._ 12.] xvi. the next branch of the king's ordinary revenue consists in forfeitures of lands and goods for offences; _bona confiscata_, as they are called by the civilians, because they belonged to the _fiscus_ or imperial treasury; or, as our lawyers term them, _forisfacta_, that is, such whereof the property is gone away or departed from the owner. the true reason and only substantial ground of any forfeiture for crimes consist in this; that all property is derived from society, being one of those civil rights which are conferred upon individuals, in exchange for that degree of natural freedom, which every man must sacrifice when he enters into social communities. if therefore a member of any national community violates the fundamental contract of his association, by transgressing the municipal law, he forfeits his right to such privileges as he claims by that contract; and the state may very justly resume that portion of property, or any part of it, which the laws have before assigned him. hence, in every offence of an atrocious kind, the laws of england have exacted a total confiscation of the moveables or personal estate; and in many cases a perpetual, in others only a temporary, loss of the offender's immoveables or landed property; and have vested them both in the king, who is the person supposed to be offended, being the one visible magistrate in whom the majesty of the public resides. the particulars of these forfeitures will be more properly recited when we treat of crimes and misdemesnors. i therefore only mention them here, for the sake of regularity, as a part of the _census regalis_; and shall postpone for the present the farther consideration of all forfeitures, excepting one species only, which arises from the misfortune rather than the crime of the owner, and is called a _deodand_. by this is meant whatever personal chattel is the immediate occasion of the death of any reasonable creature; which is forfeited to the king, to be applied to pious uses, and distributed in alms by his high almoner[u]; though formerly destined to a more superstitious purpose. it seems to have been originally designed, in the blind days of popery, as an expiation for the souls of such as were snatched away by sudden death; and for that purpose ought properly to have been given to holy church[w]; in the same manner, as the apparel of a stranger who was found dead was applied to purchase masses for the good of his soul. and this may account for that rule of law, that no deodand is due where an infant under the years of discretion is killed by a fall _from_ a cart, or horse, or the like, not being in motion[x]; whereas, if an adult person falls from thence and is killed, the thing is certainly forfeited. for the reason given by sir matthew hale seems to be very inadequate, _viz._ because an infant is not able to take care of himself: for why should the owner save his forfeiture, on account of the imbecillity of the child, which ought rather to have made him more cautious to prevent any accident of mischief? the true ground of this rule seems rather to be, that the child, by reason of it's want of discretion, is presumed incapable of actual sin, and therefore needed no deodand to purchase propitiatory masses: but every adult, who dies in actual sin, stood in need of such atonement, according to the humane superstition of the founders of the english law. [footnote u: 1 hal. p.c. 419. fleta. _l._ 1. _c._ 25.] [footnote w: fitzh. _abr. tit. enditement._ _pl._ 27. staunf. p.c. 20, 21.] [footnote x: 3 inst. 57. 1 hal. p.c. 422.] thus stands the law, if a person be killed by a fall from a thing standing still. but if a horse, or ox, or other animal, of his own motion, kill as well an infant as an adult, or if a cart run over him, they shall in either case be forfeited as deodands[y]; which is grounded upon this additional reason, that such misfortunes are in part owing to the negligence of the owner, and therefore he is properly punished by such forfeiture. a like punishment is in like cases inflicted by the mosaical law[z]: "if an ox gore a man that he die, the ox shall be stoned, and his flesh shall not be eaten." and among the athenians[a], whatever was the cause of a man's death, by falling upon him, was exterminated or cast out of the dominions of the republic. where a thing, not in motion, is the occasion of a man's death, that part only which is the immediate cause is forfeited; as if a man be climbing up a wheel, and is killed by falling from it, the wheel alone is a deodand[b]: but, wherever the thing is in motion, not only that part which immediately gives the wound, (as the wheel, which runs over his body) but all things which move with it and help to make the wound more dangerous (as the cart and loading, which increase the pressure of the wheel) are forfeited[c]. it matters not whether the owner were concerned in the killing or not; for if a man kills another with my sword, the sword is forfeited[d] as an accursed thing[e]. and therefore, in all indictments for homicide, the instrument of death and the value are presented and found by the grand jury (as, that the stroke was given with a certain penknife, value sixpence) that the king or his grantee may claim the deodand: for it is no deodand, unless it be presented as such by a jury of twelve men[f]. no deodands are due for accidents happening upon the high sea, that being out of the jurisdiction of the common law: but if a man falls from a boat or ship in fresh water, and is drowned, the vessel and cargo are in strictness a deodand[g]. [footnote y: _omnia, quae movent ad mortem, sunt deo danda._ bracton. _l._ 3. _c._ 5.] [footnote z: exod. 21. 28.] [footnote a: aeschin. _contr. ctesiph._] [footnote b: 1 hal. p.c. 422.] [footnote c: 1 hawk. p.c. c. 26.] [footnote d: a similar rule obtained among the antient goths. _si quis, me nesciente, quocunque meo telo vel instrumento in perniciem suam abutatur; vel ex aedibus meis cadat, vel incidat in puteum meum, quantumvis tectum et munitum, vel in cataractam, et sub molendino meo confringatur, ipse aliqua mulcta plectar; ut in parte infelicitatis meae numeretur, habuisse vel aedificasse aliquod quo homo periret._ stiernhook _de jure goth._ _l._ 3. _c._ 4.] [footnote e: dr & st. d. 2. c. 51.] [footnote f: 3 inst. 57.] [footnote g: 3 inst. 58. 1 hal. p.c. 423. molloy _de jur. maritim._ 2. 225.] deodands, and forfeitures in general, as well as wrecks, treasure trove, royal fish, mines, waifs, and estrays, may be granted by the king to particular subjects, as a royal franchise: and indeed they are for the most part granted out to the lords of manors, or other liberties; to the perversion of their original design. xvii. another branch of the king's ordinary revenue arises from escheats of lands, which happen upon the defect of heirs to succeed to the inheritance; whereupon they in general revert to and vest in the king, who is esteemed, in the eye of the law, the original proprietor of all the lands in the kingdom. but the discussion of this topic more properly belongs to the second book of these commentaries, wherein we shall particularly consider the manner in which lands may be acquired or lost by escheat. xviii. i proceed therefore to the eighteenth and last branch of the king's ordinary revenue; which consists in the custody of idiots, from whence we shall be naturally led to consider also the custody of lunatics. an idiot, or natural fool, is one that hath had no understanding from his nativity; and therefore is by law presumed never likely to attain any. for which reason the custody of him and of his lands was formerly vested in the lord of the fee[h]; (and therefore still, by special custom, in some manors the lord shall have the ordering of idiot and lunatic copyholders[i]) but, by reason of the manifold abuses of this power by subjects, it was at last provided by common consent, that it should be given to the king, as the general conservator of his people, in order to prevent the idiot from wasting his estate, and reducing himself and his heirs to poverty and distress[k]: this fiscal prerogative of the king is declared in parliament by statute 17 edw. ii. c. 9. which directs (in affirmance of the common law[l],) that the king shall have ward of the lands of natural fools, taking the profits without waste or destruction, and shall find them necessaries; and after the death of such idiots he shall render the estate to the heirs; in order to prevent such idiots from aliening their lands, and their heirs from being disherited. [footnote h: flet. _l._ 1. _c._ 11. â§. 10.] [footnote i: dyer. 302. hutt. 17. noy 27.] [footnote k: f.n.b. 232.] [footnote l: 4 rep. 126.] by the old common law there is a writ _de idiota inquirendo_, to enquire whether a man be an idiot or not[m]: which must be tried by a jury of twelve men; and if they find him _purus idiota_, the profits of his lands, and the custody of his person may be granted by the king to some subject, who has interest enough to obtain them[n]. this branch of the revenue hath been long considered as a hardship upon private families; and so long ago as in the 8 jac. i. it was under the consideration of parliament, to vest this custody in the relations of the party, and to settle an equivalent on the crown in lieu of it; it being then proposed to share the same fate with the slavery of the feodal tenures, which has been since abolished[o]. yet few instances can be given of the oppressive exertion of it, since it seldom happens that a jury finds a man an idiot _a nativitate_, but only _non compos mentis_ from some particular time; which has an operation very different in point of law. [footnote m: f.n.b. 232.] [footnote n: this power, though of late very rarely exerted, is still alluded to in common speech, by that usual expression of _begging_ a man for a fool.] [footnote o: 4. inst. 203. com. journ. 1610.] a man is not an idiot[p], if he hath any glimmering of reason, so that he can tell his parents, his age, or the like common matters. but a man who is born deaf, dumb, and blind, is looked upon by the law as in the same state with an idiot[q]; he being supposed incapable of understanding, as wanting those senses which furnish the human mind with ideas. [footnote p: f.n.b. 233.] [footnote q: co. litt. 42. fleta. _l._ 6. _c._ 40.] a lunatic, or _non compos mentis_, is one who hath had understanding, but by disease, grief, or other accident hath lost the use of his reason. a lunatic is indeed properly one that hath lucid intervals; sometimes enjoying his senses, and sometimes not, and that frequently depending upon the change of the moon. but under the general name of _non compos mentis_ (which sir edward coke says is the most legal name[r]) are comprized not only lunatics, but persons under frenzies; or who lose their intellects by disease; those that _grow_ deaf, dumb, and blind, not being _born_ so; or such, in short, as are by any means rendered incapable of conducting their own affairs. to these also, as well as idiots, the king is guardian, but to a very different purpose. for the law always imagines, that these accidental misfortunes may be removed; and therefore only constitutes the crown a trustee for the unfortunate persons, to protect their property, and to account to them for all profits received, if they recover, or after their decease to their representatives. and therefore it is declared by the statute 17 edw. ii. c. 10. that the king shall provide for the custody and sustentation of lunatics, and preserve their lands and the profits of them, for their use, when they come to their right mind: and the king shall take nothing to his own use; and if the parties die in such estate, the residue shall be distributed for their souls by the advice of the ordinary, and of course (by the subsequent amendments of the law of administrations) shall now go to their executors or administrators. [footnote r: 1 inst. 246.] the method of proving a person _non compos_ is very similar to that of proving him an idiot. the lord chancellor, to whom, by special authority from the king, the custody of idiots and lunatics is intrusted[s], upon petition or information, grants a commission in nature of the writ _de idiota inquirendo_, to enquire into the party's state of mind; and if he be found _non compos_, he usually commits the care of his person, with a suitable allowance for his maintenance, to some friend, who is then called his committee. however, to prevent sinister practices, the next heir is never permitted to be this committee of the person; because it is his interest that the party should die. but, it hath been said, there lies not the same objection against his next of kin, provided he be not his heir; for it is his interest to preserve the lunatic's life, in order to increase the personal estate by savings, which he or his family may hereafter be entitled to enjoy[t]. the heir is generally made the manager or committee of the estate, it being clearly his interest by good management to keep it in condition; accountable however to the court of chancery, and to the _non compos_ himself, if he recovers; or otherwise, to his administrators. [footnote s: 3 p. wms. 108.] [footnote t: 2 p. wms. 638.] in this care of idiots and lunatics the civil law agrees with ours; by assigning them tutors to protect their persons, and curators to manage their estates. but in another instance the roman law goes much beyond the english. for, if a man by notorious prodigality was in danger of wasting his estate, he was looked upon as _non compos_ and committed to the care of curators or tutors by the praetor[u]. and by the laws of solon such prodigals were branded with perpetual infamy[w]. but with us, when a man on an inquest of idiocy hath been returned an _unthrift_ and not an _idiot_[x], no farther proceedings have been had. and the propriety of the practice itself seems to be very questionable. it was doubtless an excellent method of benefiting the individual and of preserving estates in families; but it hardly seems calculated for the genius of a free nation, who claim and exercise the liberty of using their own property as they please. "_sic utere tuo, ut alienum non laedas_," is the only restriction our laws have given with regard to oeconomical prudence. and the frequent circulation and transfer of lands and other property, which cannot be effected without extravagance somewhere, are perhaps not a little conducive towards keeping our mixed constitution in it's due health and vigour. [footnote u: _solent praetores, si talem hominem invenerint, qui neque tempus neque finem expensarum habet, sed bona sua dilacerando et dissipando profundit, curatorem ei dare, exemplo furiosi: et tamdiu erunt ambo in curatione, quamdiu vel furiosus sanitatem, vel ille bonos mores, receperit._ _ff._ 27. 10. 1.] [footnote w: potter. antiqu. b. 1. c. 26.] [footnote x: bro. _abr. tit. ideot._ 4.] this may suffice for a short view of the king's _ordinary_ revenue, or the proper patrimony of the crown; which was very large formerly, and capable of being increased to a magnitude truly formidable: for there are very few estates in the kingdom, that have not, at some period or other since the norman conquest, been vested in the hands of the king by forfeiture, escheat, or otherwise. but, fortunately for the liberty of the subject, this hereditary landed revenue, by a series of improvident management, is sunk almost to nothing; and the casual profits, arising from the other branches of the _census regalis_, are likewise almost all of them alienated from the crown. in order to supply the deficiences of which, we are now obliged to have recourse to new methods of raising money, unknown to our early ancestors; which methods constitute the king's _extraordinary_ revenue. for, the publick patrimony being got into the hands of private subjects, it is but reasonable that private contributions should supply the public service. which, though it may perhaps fall harder upon some individuals, whose ancestors have had no share in the general plunder, than upon others, yet, taking the nation throughout, it amounts to nearly the same; provided the gain by the extraordinary, should appear to be no greater than the loss by the ordinary, revenue. and perhaps, if every gentleman in the kingdom was to be stripped of such of his lands as were formerly the property of the crown; was to be again subject to the inconveniences of purveyance and pre-emption, the oppression of forest laws, and the slavery of feodal tenures; and was to resign into the king's hands all his royal franchises of waifs, wrecks, estrays, treasure-trove, mines, deodands, forfeitures, and the like; he would find himself a greater loser, than by paying his _quota_ to such taxes, as are necessary to the support of government. the thing therefore to be wished and aimed at in a land of liberty, is by no means the total abolition of taxes, which would draw after it very pernicious consequences, and the very supposition of which is the height of political absurdity. for as the true idea of government and magistracy will be found to consist in this, that some few men are deputed by many others to preside over public affairs, so that individuals may the better be enabled to attend to their private concerns; it is necessary that those individuals should be bound to contribute a portion of their private gains, in order to support that government, and reward that magistracy, which protects them in the enjoyment of their respective properties. but the things to be aimed at are wisdom and moderation, not only in granting, but also in the method of raising, the necessary supplies; by contriving to do both in such a manner as may be most conducive to the national welfare and at the same time most consistent with oeconomy and the liberty of the subject; who, when properly taxed, contributes only, as was before observed[y], some part of his property, in order to enjoy the rest. [footnote y: pag. 271.] these extraordinary grants are usually called by the synonymous names of aids, subsidies, and supplies; and are granted, we have formerly seen[z], by the commons of great britain, in parliament assembled: who, when they have voted a supply to his majesty, and settled the _quantum_ of that supply, usually resolve themselves into what is called a committee of ways and means, to consider of the ways and means of raising the supply so voted. and in this committee every member (though it is looked upon as the peculiar province of the chancellor of the exchequer) may propose such scheme of taxation as he thinks will be least detrimental to the public. the resolutions of this committee (when approved by a vote of the house) are in general esteemed to be (as it were) final and conclusive. for, through [transcriber's note: though] the supply cannot be actually raised upon the subject till directed by an act of the whole parliament, yet no monied man will scruple to advance to the government any quantity of ready cash, on the credit of a bare vote of the house of commons, though no law be yet passed to establish it. [footnote z: pag. 163.] the taxes, which are raised upon the subject, are either annual or perpetual. the usual annual taxes are those upon land and malt. i. the land tax, in it's modern shape, has superseded all the former methods of rating either property, or persons in respect of their property, whether by tenths or fifteenths, subsidies on land, hydages, scutages, or talliages; a short explication of which will greatly assist us in understanding our antient laws and history. tenths, and fifteenths[a], were temporary aids issuing out of personal property, and granted to the king by parliament. they were formerly the real tenth or fifteenth part of all the moveables belonging to the subject; when such moveables, or personal estates, were a very different and a much less considerable thing than what they usually are at this day. tenths are said to have been first granted under henry the second, who took advantage of the fashionable zeal for croisades to introduce this new taxation, in order to defray the expense of a pious expedition to palestine, which he really or seemingly had projected against saladine emperor of the saracens; whence it was originally denominated the saladine tenth[b]. but afterwards fifteenths were more usually granted than tenths. originally the amount of these taxes was uncertain, being levied by assessments new made at every fresh grant of the commons, a commission for which is preserved by matthew paris[c]: but it was at length reduced to a certainty in the eighth of edw. iii. when, by virtue of the king's commission, new taxations were made of every township, borough, and city in the kingdom, and recorded in the exchequer; which rate was, at the time, the fifteenth part of the value of every township, the whole amounting to about 29000_l._ and therefore it still kept up the name of a fifteenth, when, by the alteration of the value of money and the encrease of personal property, things came to be in a very different situation. so that when, of later years, the commons granted the king a fifteenth, every parish in england immediately knew their proportion of it; that is, the same identical sum that was assessed by the same aid in the eighth of edw. iii; and then raised it by a rate among themselves, and returned it into the royal exchequer. [footnote a: 2 inst. 77. 4 inst. 34.] [footnote b: hoved. _a.d._ 1188. carte. 1. 719. hume. 1. 329.] [footnote c: _a.d._ 1232.] the other antient levies were in the nature of a modern land tax; for we may trace up the original of that charge as high as to the introduction of our military tenures[d]; when every tenant of a knight's fee was bound, if called upon, to attend the king in his army for forty days in every year. but this personal attendance growing troublesome in many respects, the tenants found means of compounding for it, by first sending others in their stead, and in process of time by making a pecuniary satisfaction to the crown in lieu of it. this pecuniary satisfaction at last came to be levied by assessments, at so much for every knight's fee, under the name of scutages; which appear to have been levied for the first time in the fifth year of henry the second, on account of his expedition to toulouse, and were then (i apprehend) mere arbitrary compositions, as the king and the subject could agree. but this precedent being afterwards abused into a means of oppression, (by levying scutages on the landholders by the royal authority only, whenever our kings went to war, in order to hire mercenary troops and pay their contingent expences) it became thereupon a matter of national complaint; and king john was obliged to promise in his _magna carta_[e], that no scutage should be imposed without the consent of the common council of the realm. this clause was indeed omitted in the charters of henry iii, where[f] we only find it stipulated, that scutages should be taken as they were used to be in the time of king henry the second. yet afterwards, by a variety of statutes under edward i and his grandson[g], it was provided, that the king shall not take any aids or tasks, any talliage or tax, but by the common assent of the great men and commons in parliament. [footnote d: see the second book of these commentaries.] [footnote e: _cap._ 14.] [footnote f: 9 hen. iii. c. 37.] [footnote g: 25 edw. i. c. 5 & 6. 34 edw. i. st. 4. c. 1. 14 edw. iii. st. 2. c. 1.] of the same nature with scutages upon knights-fees were the assessments of hydage upon all other lands, and of talliage upon cities and burghs[h]. but they all gradually fell into disuse, upon the introduction of subsidies, about the time of king richard ii and king henry iv. these were a tax, not immediately imposed upon property, but upon persons in respect of their reputed estates, after the nominal rate of 4_s._ in the pound for lands, and 2_s._ 6_d._ for goods; and for those of aliens in a double proportion. but this assessment was also made according to an antient valuation; wherein the computation was so very moderate, and the rental of the kingdom was supposed to be so exceeding low, that one subsidy of this sort did not, according to sir edward coke[i], amount to more than 70000_l._ whereas a modern land tax at the same rate produces two millions. it was antiently the rule never to grant more than one subsidy, and two fifteenths at a time; but this rule was broke through for the first time on a very pressing occasion, the spanish invasion in 1588; when the parliament gave queen elizabeth two subsidies and four fifteenths. afterwards, as money sunk in value, more subsidies were given; and we have an instance in the first parliament of 1640, of the king's desiring twelve subsidies of the commons, to be levied in three years; which was looked upon as a startling proposal: though lord clarendon tells us[k], that the speaker, serjeant glanvile, made it manifest to the house, how very inconsiderable a sum twelve subsidies amounted to, by telling them he had computed what he was to pay for them; and, when he named the sum, he being known to be possessed of a great estate, it seemed not worth any farther deliberation. and indeed, upon calculation, we shall find, that the total amount of these twelve subsidies, to be raised in three years, is less than what is now raised in one year, by a land tax of two shillings in the pound. [footnote h: madox. hist. exch. 480.] [footnote i: 4 inst. 33.] [footnote k: hist. b. 2.] the grant of scutages, talliages, or subsidies by the commons did not extend to spiritual preferments; those being usually taxed at the same time by the clergy themselves in convocation; which grants of the clergy were confirmed in parliament, otherwise they were illegal, and not binding; as the same noble writer observes of the subsidies granted by the convocation, who continued sitting after the dissolution of the first parliament in 1640. a subsidy granted by the clergy was after the rate of 4_s._ in the pound according to the valuation of their livings in the king's books; and amounted, sir edward coke tells us[l], to about 20000_l._ while this custom continued, convocations were wont to sit as frequently as parliaments: but the last subsidies, thus given by the clergy, were those confirmed by statute 15 car. ii. cap. 10. since which another method of taxation has generally prevailed, which takes in the clergy as well as the laity; in recompense for which the beneficed clergy have from that period been allowed to vote at the elections of knights of the shire[m]; and thenceforward also the practice of giving ecclesiastical subsidies hath fallen into total disuse. [footnote l: 4 inst 33.] [footnote m: dalt. of sheriffs, 418. gilb. hist. of exch. c. 4.] the lay subsidy was usually raised by commissioners appointed by the crown, or the great officers of state: and therefore in the beginning of the civil wars between charles i and his parliament, the latter, having no other sufficient revenue to support themselves and their measures, introduced the practice of laying weekly and monthly assessments[n] of a specific sum upon the several counties of the kingdom; to be levied by a pound rate on lands and personal estates: which were occasionally continued during the whole usurpation, sometimes at the rate of 120000_l._ a month; sometimes at inferior rates[o]. after the restoration the antient method of granting subsidies, instead of such monthly assessments, was twice, and twice only, renewed; viz. in 1663, when four subsidies were granted by the temporalty, and four by the clergy; and in 1670, when 800000_l._ was raised by way of subsidy, which was the last time of raising supplies in that manner. for, the monthly assessments being now established by custom, being raised by commissioners named by parliament, and producing a more certain revenue; from that time forwards we hear no more of subsidies; but occasional assessments were granted as the national emergencies required. these periodical assessments, the subsidies which preceded them, and the more antient scutage, hydage, and talliage, were to all intents and purposes a land tax; and the assessments were sometimes expressly called so[p]. yet a popular opinion has prevailed, that the land tax was first introduced in the reign of king william iii; because in the year 1692 a new assessment or valuation of estates was made throughout the kingdom; which, though by no means a perfect one, had this effect, that a supply of 500000_l._ was equal to 1_s._ in the pound of the value of the estates given in. and, according to this enhanced valuation, from the year 1693 to the present, a period of above seventy years, the land tax has continued an annual charge upon the subject; above half the time at 4_s._ in the pound, sometimes at 3_s_, sometimes at 2_s_, twice[q] at 1_s_, but without any total intermission. the medium has been 3_s._ 3_d._ in the pound, being equivalent to twenty three antient subsidies, and amounting annually to more than a million and an half of money. the method of raising it is by charging a particular sum upon each county, according to the valuation given in, _a.d._ 1692: and this sum is assessed and raised upon individuals (their personal estates, as well as real, being liable thereto) by commissioners appointed in the act, being the principal landholders of the county, and their officers. [footnote n: 29 nov. 4 mar. 1642.] [footnote o: one of these bills of assessment, in 1656, is preserved in scobell's collection, 400.] [footnote p: com. journ. 26 jun. 9 dec. 1678.] [footnote q: in the years 1732 and 1733.] ii. the other annual tax is the malt tax; which is a sum of 750000_l_, raised every year by parliament, ever since 1697, by a duty of 6_d._ in the bushel on malt, and a proportionable sum on certain liquors, such as cyder and perry, which might otherwise prevent the consumption of malt. this is under the management of the commissioners of the excise; and is indeed itself no other than an annual excise, the nature of which species of taxation i shall presently explain: only premising at present, that in the year 1760 an additional perpetual excise of 3_d._ _per_ bushel was laid upon malt; and in 1763 a proportionable excise was laid upon cyder and perry. the perpetual taxes are, i. the customs; or the duties, toll, tribute, or tariff, payable upon merchandize exported and imported. the considerations upon which this revenue (or the more antient part of it, which arose only from exports) was invested in the king, were said to be two[r]; 1. because he gave the subject leave to depart the kingdom, and to carry his goods along with him. 2. because the king was bound of common right to maintain and keep up the ports and havens, and to protect the merchant from pirates. some have imagined they are called with us customs, because they were the inheritance of the king by immemorial usage and the common law, and not granted him by any statute[s]: but sir edward coke hath clearly shewn[t], that the king's first claim to them was by grant of parliament 3 edw. i. though the record thereof is not now extant. and indeed this is in express words confessed by statute 25 edw. i. c. 7. wherein the king promises to take no customs from merchants, without the common assent of the realm, "saving to us and our heirs, the customs on wools, skins, and leather, formerly granted to us by the commonalty aforesaid." these were formerly called the hereditary customs of the crown; and were due on the exportation only of the said three commodities, and of none other: which were stiled the _staple_ commodities of the kingdom, because they were obliged to be brought to those ports where the king's staple was established, in order to be there first rated, and then exported[u]. they were denominated in the barbarous latin of our antient records, _custuma_[w]; not _consuetudines_, which is the language of our law whenever it means merely usages. the duties on wool, sheep-skins, or woolfells, and leather, exported, were called _custuma antiqua sive magna_; and were payable by every merchant, as well native as stranger; with this difference, that merchant-strangers paid an additional toll, _viz._ half as much again as was paid by natives. the _custuma parva et nova_ were an impost of 3_d._ in the pound, due from merchant-strangers only, for all commodities as well imported as exported; which was usually called the alien's duty, and was first granted in 31 edw. i[x]. but these antient hereditary customs, especially those on wool and woolfells, came to be of little account when the nation became sensible of the advantages of a home manufacture, and prohibited the exportation of wool by statute 11 edw. iii. c. 1. [footnote r: dyer. 165.] [footnote s: dyer. 43. _pl._ 24.] [footnote t: 2 inst. 58, 59.] [footnote u: dav. 9.] [footnote w: this appellation seems to be derived from the french word _coustum_, or _coã»tum_, which signifies toll or tribute, and owes it's own etymology to the word _coust_, which signifies price, charge, or, as we have adopted it in english, _cost_.] [footnote x: 4 inst. 29.] there is also another antient hereditary duty belonging to the crown, called the _prisage_ or _butlerage_ of wines. prisage was a right of _taking_ two tons of wine from every ship importing into england twenty tons or more; which by edward i was exchanged into a duty of 2_s._ for every ton imported by merchant-strangers; which is called butlerage, because paid to the king's butler[y]. [footnote y: dav. 8. _b._ 2 bulstr. 254.] other customs payable upon exports and imports are distinguished into subsidies, tonnage, poundage, and other imposts. subsidies are such as were imposed by parliament upon any of the staple commodities before mentioned, over and above the _custuma antiqua et magna_: tonnage was a duty upon all wines imported, over and above the prisage and butlerage aforesaid: poundage was a duty imposed _ad valorem_, at the rate of 12_d._ in the pound, on all other merchandize whatsoever: and the other imports were such as were occasionally laid on by parliament, as circumstances and times required[z]. these distinctions are now in a manner forgotten, except by the officers immediately concerned in this department; their produce being in effect all blended together, under the one denomination of the customs. [footnote z: dav. 11, 12.] by these we understand, at present, a duty or subsidy paid by the merchant, at the quay, upon all imported as well as exported commodities, by authority of parliament; unless where, for particular national reasons, certain rewards, bounties, or drawbacks, are allowed for particular exports or imports. those of tonnage and poundage, in particular, were at first granted, as the old statutes, and particularly 1 eliz. c. 19. express it, for the defence of the realm, and the keeping and safeguard of the seas, and for the intercourse of merchandize safely to come into and pass out of the same. they were at first usually granted only for a stated term of years, as, for two years in 5 ric. ii[a]; but in henry the fifth's time, they were granted him for life by a statute in the third year of his reign; and again to edward iv for the term of his life also: since which time they were regularly granted to all his successors, for life, sometimes at their first, sometimes at other subsequent parliaments, till the reign of charles the first; when, as had before happened in the reign of henry viii[b] and other princes, they were neglected to be asked. and yet they were imprudently and unconstitutionally levied and taken without consent of parliament, (though more than one had been assembled) for fifteen years together; which was one of the causes of those unhappy discontents, justifiable at first in too many instances, but which degenerated at last into causeless rebellion and murder. for, as in every other, so in this particular case, the king (previous to the commencement of hostilities) gave the nation ample satisfaction for the errors of his former conduct, by passing an act[c], whereby he renounced all power in the crown of levying the duty of tonnage and poundage, without the express consent of parliament; and also all power of imposition upon any merchandizes whatever. upon the restoration this duty was granted to king charles the second for life, and so it was to his two immediate successors; but now by three several statutes, 9 ann. c. 6. 1 geo. i. c. 12. and 3 geo. i. c. 7. it is made perpetual and mortgaged for the debt of the publick. the customs, thus imposed by parliament, are chiefly contained in two books of rates, set forth by parliamentary authority[d]; one signed by sir harbottle grimston, speaker of the house of commons in charles the second's time; and the other an additional one signed by sir spenser compton, speaker in the reign of george the first; to which also subsequent additions have been made. aliens pay a larger proportion than natural subjects, which is what is now generally understood by the aliens' duty; to be exempted from which is one principal cause of the frequent applications to parliament for acts of naturalization. [footnote a: dav. 12.] [footnote b: stat. 6 hen. viii. c. 14.] [footnote c: 16 car. i. c. 8.] [footnote d: stat. 12 car. ii. c. 4. 11 geo. i. c. 7.] these customs are then, we see, a tax immediately paid by the merchant, although ultimately by the consumer. and yet these are the duties felt least by the people; and, if prudently managed, the people hardly consider that they pay them at all. for the merchant is easy, being sensible he does not pay them for himself; and the consumer, who really pays them, confounds them with the price of the commodity: in the same manner as tacitus observes, that the emperor nero gained the reputation of abolishing the tax on the sale of slaves, though he only transferred it from the buyer to the seller; so that it was, as he expresses it, "_remissum magis specie, quam vi: quia cum venditor pendere juberetur, in partem pretii emptoribus accrescebat_[e]." but this inconvenience attends it on the other hand, that these imposts, if too heavy, are a check and cramp upon trade; and especially when the value of the commodity bears little or no proportion to the quantity of the duty imposed. this in consequence gives rise also to smuggling, which then becomes a very lucrative employment: and it's natural and most reasonable punishment, _viz._ confiscation of the commodity, is in such cases quite ineffectual; the intrinsic value of the goods, which is all that the smuggler has paid, and therefore all that he can lose, being very inconsiderable when compared with his prospect of advantage in evading the duty. recourse must therefore be had to extraordinary punishments to prevent it; perhaps even to capital ones: which destroys all proportion of punishment[f], and puts murderers upon an equal footing with such as are really guilty of no natural, but merely a positive offence. [footnote e: hist. l. 13.] [footnote f: montesqu. sp. l. b. 13. c. 8.] there is also another ill consequence attending high imports on merchandize, not frequently considered, but indisputably certain; that the earlier any tax is laid on a commodity, the heavier it falls upon the consumer in the end: for every trader, through whose hands it passes, must have a profit, not only upon the raw material and his own labour and time in preparing it, but also upon the very tax itself, which he advances to the government; otherwise he loses the use and interest of the money which he so advances. to instance in the article of foreign paper. the merchant pays a duty upon importation, which he does not receive again till he sells the commodity, perhaps at the end of three months. he is therefore equally entitled to a profit upon that duty which he pays at the customhouse, as to a profit upon the original price which he pays to the manufacturer abroad; and considers it accordingly in the price he demands of the stationer. when the stationer sells it again, he requires a profit of the printer or bookseller upon the whole sum advanced by him to the merchant: and the bookseller does not forget to charge the full proportion to the student or ultimate consumer; who therefore does not only pay the original duty, but the profits of these three intermediate traders, who have successively advanced it for him. this might be carried much farther in any mechanical, or more complicated, branch of trade. ii. directly opposite in it's nature to this is the excise duty; which is an inland imposition, paid sometimes upon the consumption of the commodity, or frequently upon the retail sale, which is the last stage before the consumption. this is doubtless, impartially speaking, the most oeconomical way of taxing the subject: the charges of levying, collecting, and managing the excise duties being considerably less in proportion, than in any other branch of the revenue. it also renders the commodity cheaper to the consumer, than charging it with customs to the same amount would do; for the reason just now given, because generally paid in a much later stage of it. but, at the same time, the rigour and arbitrary proceedings of excise-laws seem hardly compatible with the temper of a free nation. for the frauds that might be committed in this branch of the revenue, unless a strict watch is kept, make it necessary, wherever it is established, to give the officers a power of entring and searching the houses of such as deal in excisable commodities, at any hour of the day, and, in many cases, of the night likewise. and the proceedings in case of transgressions are so summary and sudden, that a man may be convicted in two days time in the penalty of many thousand pounds by two commissioners or justices of the peace; to the total exclusion of the trial by jury, and disregard of the common law. for which reason, though lord clarendon tells us[g], that to his knowlege the earl of bedford (who was made lord treasurer by king charles the first, to oblige his parliament) intended to have set up the excise in england, yet it never made a part of that unfortunate prince's revenue; being first introduced, on the model of the dutch prototype, by the parliament itself after it's rupture with the crown. yet such was the opinion of it's general unpopularity, that when in 1642 "aspersions were cast by malignant persons upon the house of commons, that they intended to introduce excises, the house for it's vindication therein did declare, that these rumours were false and scandalous; and that their authors should be apprehended and brought to condign punishment[h]." it's original establishment was in 1643, and it's progress was gradual[i]; being at first laid upon those persons and commodities, where it was supposed the hardship would be least perceivable, _viz._ the makers and venders of beer, ale, cyder, and perry[k]; and the royalists at oxford soon followed the example of their brethren at westminster by imposing a similar duty; both sides protesting that it should be continued no longer than to the end of the war, and then be utterly abolished[l]. but the parliament at westminster soon after imposed it on flesh, wine, tobacco, sugar, and such a multitude of other commodities that it might fairly be denominated general; in pursuance of the plan laid down by mr pymme (who seems to have been the father of the excise) in his letter to sir john hotham[m], signifying, "that they had proceeded in the excise to many particulars, and intended to go on farther; but that it would be necessary to use the people to it by little and little." and afterwards, when the people had been accustomed to it for a series of years, the succeeding champions of liberty boldly and openly declared, "the impost of excise to be the most easy and indifferent levy that could be laid upon the people[n]:" and accordingly continued it during the whole usurpation. upon king charles's return, it having then been long established and it's produce well known, some part of it was given to the crown, in the 12 car. ii, by way of purchase (as was before observed) for the feodal tenures and other oppressive parts of the hereditary revenue. but, from it's first original to the present time, it's very name has been odious to the people of england. it has nevertheless been imposed on abundance of other commodities in the reigns of king william iii, and every succeeding prince, to support the enormous expenses occasioned by our wars on the continent. thus brandies and other spirits are now excised at the distillery; printed silks and linens, at the printers; starch and hair powder, at the maker's; gold and silver wire, at the wiredrawer's; all plate whatsoever, first in the hands of the vendor, who pays yearly for a licence to sell it, and afterwards in the hands of the occupier, who also pays an annual duty for having it in his custody; and coaches and other wheel carriages, for which the occupier is excised; though not with the same circumstances of arbitrary strictness with regard to plate and coaches, as in the other instances. to these we may add coffee and tea, chocolate, and cocoa paste, for which the duty is paid by the retailer; all artificial wines, commonly called sweets; paper and pasteboard, first when made, and again if stained or printed; malt as before-mentioned; vinegars; and the manufacture of glass; for all which the duty is paid by the manufacturer; hops, for which the person that gathers them is answerable; candles and soap, which are paid for at the maker's; malt liquors brewed for sale, which are excised at the brewery; cyder and perry, at the mill; and leather and skins, at the tanner's. a list, which no friend to his country would wish to see farther encreased. [footnote g: hist. b. 3.] [footnote h: com. journ. 8 oct. 1642.] [footnote i: the translator and continuator of petavius's chronological history (lond. 1659.) informs us, that it was first moved for, 28 mar. 1643, by mr prynne. and it appears from the journals of the commons that on that day the house resolved itself into a committee to consider of raising money, in consequence of which the excise was afterwards voted. but mr prynne was not a member of parliament till 7 nov. 1648; and published in 1654 "a protestation against the illegal, detestable, and oft-condemned tax and extortion of excise in general." it is probably therefore a mistake of the printer for mr pymme, who was intended for chancellor of the exchequer under the earl of bedford. (lord clar. b. 7.)] [footnote k: com. journ. 17 may 1643.] [footnote l: lord clar. b. 7.] [footnote m: 30 may 1643. dugdale of the troubles, 120.] [footnote n: ord. 14 aug. 1649. c. 50. scobell. 72. stat. 1656. c. 19. scobell. 453.] iii. i proceed therefore to a third duty, namely that upon salt; which is another distinct branch of his majesty's extraordinary revenue, and consists in an excise of 3_s._ 4_d._ _per_ bushel imposed upon all salt, by several statutes of king william and other subsequent reigns. this is not generally called an excise, because under the management of different commissioners: but the commissioners of the salt duties have by statute 1 ann. c. 21. the same powers, and must observe the same regulations, as those of other excises. this tax had usually been only temporary; but by statute 26 geo. ii. c. 3. was made perpetual. iv. another very considerable branch of the revenue is levied with greater chearfulness, as, instead of being a burden, it is a manifest advantage to the public. i mean the post-office, or duty for the carriage of letters. as we have traced the original of the excise to the parliament of 1643, so it is but justice to observe that this useful invention owes it's birth to the same assembly. it is true, there existed postmasters in much earlier times: but i apprehend their business was confined to the furnishing of posthorses to persons who were desirous to travel expeditiously, and to the dispatching extraordinary pacquets upon special occasions. the outline of the present plan seems to have been originally conceived by mr edmond prideaux, who was appointed attorney general to the commonwealth after the murder of king charles. he was a chairman of a committee in 1642 for considering what rates should be set upon inland letters[o]; and afterwards appointed postmaster by an ordinance of both the houses[p], in the execution of which office he first established a weekly conveyance of letters into all parts of the nation[q]: thereby saving to the public the charge of maintaining postmasters, to the amount of 7000_l._ _per annum_. and, his own emoluments being probably considerable, the common council of london endeavoured to erect another post-office in opposition to his, till checked by a resolution of the commons[r], declaring, that the office of postmaster is and ought to be in the sole power and disposal of the parliament. this office was afterwards farmed by one manley in 1654[s]. but, in 1657, a regular post-office was erected by the authority of the protector and his parliament, upon nearly the same model as has been ever since adopted, with the same rates of postage as were continued till the reign of queen anne[t]. after the restoration a similar office, with some improvements, was established by statute 12 car. ii. c. 35. but the rates of letters were altered, and some farther regulations added, by the statutes 9 ann. c. 10. 6 geo. i. c. 21. 26 geo. ii. c. 12. and 5 geo. iii. c. 25. and penalties were enacted, in order to confine the carriage of letters to the public office only, except in some few cases: a provision, which is absolutely necessary; for nothing but an exclusive right can support an office of this sort: many rival independent offices would only serve to ruin one another. the privilege of letters coming free of postage, to and from members of parliament, was claimed by the house of commons in 1660, when the first legal settlement of the present post-office was made[u]; but afterwards dropped[w] upon a private assurance from the crown, that this privilege should be allowed the members[x]. and accordingly a warrant was constantly issued to the postmaster-general[y], directing the allowance thereof, to to [transcriber's note: duplicate word] the extent of two ounces in weight: till at length it was expressly confirmed by statute 4 geo. iii. c. 24; which adds many new regulations, rendered necessary by the great abuses crept into the practice of franking; whereby the annual amount of franked letters had gradually increased, from 23600_l._ in the year 1715, to 170700_l._ in the year 1763[z]. there cannot be devised a more eligible method, than this, of raising money upon the subject: for therein both the government and the people find a mutual benefit. the government acquires a large revenue; and the people do their business with greater ease, expedition, and cheapness, than they would be able to do if no such tax (and of course no such office) existed. [footnote o: com. journ. 28 mar. 1642.] [footnote p: _ibid._ 7 sept. 1644.] [footnote q: _ibid._ 21 mar. 1649.] [footnote r: _ibid._] [footnote s: scobell. 358.] [footnote t: com. journ. 9 jun. 1657. scobell. 511.] [footnote u: com. journ. 17 dec. 1660.] [footnote w: _ibid._ 22 dec. 1660.] [footnote x: _ibid._ 16 apr. 1735.] [footnote y: _ibid._ 26 feb. 1734.] [footnote z: _ibid._ 28 mar. 1764.] v. a fifth branch of the perpetual revenue consists in the stamp duties, which are a tax imposed upon all parchment and paper whereon any legal proceedings, or private instruments of almost any nature whatsoever, are written; and also upon licences for retailing wines, of all denominations; upon all almanacks, newspapers, advertisements, cards, dice, and pamphlets containing less than six sheets of paper. these imposts are very various, according to the nature of the thing stamped, rising gradually from a penny to ten pounds. this is also a tax, which though in some instances it may be heavily felt, by greatly increasing the expence of all mercantile as well as legal proceedings, yet (if moderately imposed) is of service to the public in general, by authenticating instruments, and rendering it much more difficult than formerly to forge deeds of any standing; since, as the officers of this branch of the revenue vary their stamps frequently, by marks perceptible to none but themselves, a man that would forge a deed of king william's time, must know and be able to counterfeit the stamp of that date also. in france and some other countries the duty is laid on the contract itself, not on the instrument in which it is contained: but this draws the subject into a thousand nice disquisitions and disputes concerning the nature of his contract, and whether taxable or not; in which the farmers of the revenue are sure to have the advantage. our method answers the purposes of the state as well, and consults the ease of the subject much better. the first institution of the stamp duties was by statute 5 & 6 w. & m. c. 21. and they have since in many instances been encreased to five times their original amount. vi. a sixth branch is the duty upon houses and windows. as early as the conquest mention is made in domesday book of fumage or fuage, vulgarly called smoke farthings; which were paid by custom to the king for every chimney in the house. and we read that edward the black prince (soon after his successes in france) in imitation of the english custom, imposed a tax of a florin upon every hearth in his french dominions[a]. but the first parliamentary establishment of it in england was by statute 13 & 14 car. ii. c. 10. whereby an hereditary revenue of 2_s._ for every hearth, in all houses paying to church and poor, was granted to the king for ever. and, by subsequent statutes, for the more regular assessment of this tax, the constable and two other substantial inhabitants of the parish, to be appointed yearly, were, once in every year, empowered to view the inside of every house in the parish. but, upon the revolution, by statute 1 w. & m. st. 1. c. 10. hearth-money was declared to be "not only a great oppression to the poorer sort, but a badge of slavery upon the whole people, exposing every man's house to be entered into, and searched at pleasure, by persons unknown to him; and therefore, to erect a lasting monument of their majesties' goodness in every house in the kingdom, the duty of hearth-money was taken away and abolished." this monument of goodness remains among us to this day: but the prospect of it was somewhat darkened when, in six years afterwards, by statute 7 w. iii. c. 18. a tax was laid upon all houses (except cottages) of 2_s._ now advanced to 3_s._ _per_ house, and a tax also upon all windows, if they exceed nine, in such house. which rates have been from time to time varied, (particularly by statutes 20 geo. ii. c. 3. and 31 geo. ii. c. 22.) and power is given to surveyors, appointed by the crown, to inspect the outside of houses, and also to pass through any house two days in the year, into any court or yard to inspect the windows there. [footnote a: mod. un. hist. xxiii. 463. spelm. gloss. _tit. fuage_.] vii. the seventh branch of the extraordinary perpetual revenue is the duty arising from licences to hackney coaches and chairs in london, and the parts adjacent. in 1654 two hundred hackney coaches were allowed within london, westminster, and six miles round, under the direction of the court of aldermen[b]. by statute 13 & 14 car. ii. c. 2. four hundred were licensed; and the money arising thereby was applied to repairing the streets[c]. this number was increased to seven hundred by statute 5 w. & m. c. 22. and the duties vested in the crown: and by the statute 9 ann. c. 23. and other subsequent statutes[d], there are now eight hundred licensed coaches and four hundred chairs. this revenue is governed by commissioners of it's own, and is, in truth, a benefit to the subject; as the expense of it is felt by no individual, and it's necessary regulations have established a competent jurisdiction, whereby a very refractory race of men may be kept in some tolerable order. [footnote b: scobell. 313.] [footnote c: com. journ. 14 feb. 1661.] [footnote d: 10 ann. c. 19. â§. 158. 12 geo. i. c. 15. 33 geo. ii. c. 25.] viii. the eighth and last branch of the king's extraordinary perpetual revenue is the duty upon offices and pensions; consisting in a payment of 1_s._ in the pound (over and above all other duties) out of all salaries, fees, and perquisites, of offices and pensions payable by the crown. this highly popular taxation was imposed by statute 31 geo. ii. c. 22. and is under the direction of the commissioners of the land tax. the clear neat produce of these several branches of the revenue, after all charges of collecting and management paid, amounts annually to about seven millions and three quarters sterling; besides two millions and a quarter raised annually, at an average, by the land and malt tax. how these immense sums are appropriated, is next to be considered. and this is, first and principally, to the payment of the interest of the national debt. in order to take a clear and comprehensive view of the nature of this national debt, it must first be premised, that after the revolution, when our new connections with europe introduced a new system of foreign politics, the expenses of the nation, not only in settling the new establishment, but in maintaining long wars, as principals, on the continent, for the security of the dutch barrier, reducing the french monarchy, settling the spanish succession, supporting the house of austria, maintaining the liberties of the germanic body, and other purposes, increased to an unusual degree: insomuch that it was not thought advisable to raise all the expenses of any one year by taxes to be levied within that year, lest the unaccustomed weight of them should create murmurs among the people. it was therefore the policy of the times, to anticipate the revenues of their posterity, by borrowing immense sums for the current service of the state, and to lay no more taxes upon the subject than would suffice to pay the annual interest of the sums so borrowed: by this means converting the principal debt into a new species of property, transferrable from one man to another at any time and in any quantity. a system which seems to have had it's original in the state of florence, _a.d._ 1344: which government then owed about 60000_l._ sterling; and, being unable to pay it, formed the principal into an aggregate sum, called metaphorically a _mount_ or _bank_, the shares whereof were transferrable like our stocks, with interest at 5 _per cent._ the prices varying according to the exigencies of the state[e]. this laid the foundation of what is called the national debt: for a few long annuities created in the reign of charles ii will hardly deserve that name. and the example then set has been so closely followed during the long wars in the reign of queen anne, and since, that the capital of the national debt, (funded and unfunded) amounted in january 1765 to upwards of 145,000,000_l._ to pay the interest of which, and the charges for management, amounting annually to about four millions and three quarters, the revenues just enumerated are in the first place mortgaged, and made perpetual by parliament. perpetual, i say; but still redeemable by the same authority that imposed them: which, if it at any time can pay off the capital, will abolish those taxes which are raised to discharge the interest. [footnote e: _pro tempore, pro spe, pro commodo, minuitur eorum pretium atque augescit._ aretin. see mod. un. hist. xxxvi. 116.] by this means the quantity of property in the kingdom is greatly encreased in idea, compared with former times; yet, if we coolly consider it, not at all encreased in reality. we may boast of large fortunes, and quantities of money in the funds. but where does this money exist? it exists only in name, in paper, in public faith, in parliamentary security: and that is undoubtedly sufficient for the creditors of the public to rely on. but then what is the pledge which the public faith has pawned for the security of these debts? the land, the trade, and the personal industry of the subject; from which the money must arise that supplies the several taxes. in these therefore, and these only, the property of the public creditors does really and intrinsically exist: and of course the land, the trade, and the personal industry of individuals, are diminished in their true value just so much as they are pledged to answer. if a's income amounts to 100_l._ _per annum_; and he is so far indebted to b, that he pays him 50_l._ _per annum_ for his interest; one half of the value of a's property is transferred to b the creditor. the creditor's property exists in the demand which he has upon the debtor, and no where else; and the debtor is only a trustee to his creditor for one half of the value of his income. in short, the property of a creditor of the publick, consists in a certain portion of the national taxes: by how much therefore he is the richer, by so much the nation, which pays these taxes, is the poorer. the only advantage, that can result to a nation from public debts, is the encrease of circulation by multiplying the cash of the kingdom, and creating a new species of money, always ready to be employed in any beneficial undertaking, by means of it's transferrable quality; and yet productive of some profit, even when it lies idle and unemployed. a certain proportion of debt seems therefore to be highly useful to a trading people; but what that proportion is, it is not for me to determine. thus much is indisputably certain, that the present magnitude of our national incumbrances very far exceeds all calculations of commercial benefit, and is productive of the greatest inconveniences. for, first, the enormous taxes, that are raised upon the necessaries of life for the payment of the interest of this debt, are a hurt both to trade and manufactures, by raising the price as well of the artificer's subsistence, as of the raw material, and of course, in a much greater proportion, the price of the commodity itself. secondly, if part of this debt be owing to foreigners, either they draw out of the kingdom annually a considerable quantity of specie for the interest; or else it is made an argument to grant them unreasonable privileges in order to induce them to reside here. thirdly, if the whole be owing to subjects only, it is then charging the active and industrious subject, who pays his share of the taxes, to maintain the indolent and idle creditor who receives them. lastly, and principally, it weakens the internal strength of a state, by anticipating those resources which should be reserved to defend it in case of necessity. the interest we now pay for our debts would be nearly sufficient to maintain any war, that any national motives could require. and if our ancestors in king william's time had annually paid, so long as their exigences lasted, even a less sum than we now annually raise upon their accounts, they would in the time of war have borne no greater burdens, than they have bequeathed to and settled upon their posterity in time of peace; and might have been eased the instant the exigence was over. the produce of the several taxes beforementioned were originally separate and distinct funds; being securities for the sums advanced on each several tax, and for them only. but at last it became necessary, in order to avoid confusion, as they multiplied yearly, to reduce the number of these separate funds, by uniting and blending them together; superadding the faith of parliament for the general security of the whole. so that there are now only three capital funds of any account, the _aggregate_ fund, and the _general_ fund, so called from such union and addition; and the _south sea_ fund, being the produce of the taxes appropriated to pay the interest of such part of the national debt as was advanced by that company and it's annuitants. whereby the separate funds, which were thus united, are become mutual securities for each other; and the whole produce of them, thus aggregated, is liable to pay such interest or annuities as were formerly charged upon each distinct fund; the faith of the legislature being moreover engaged to supply any casual deficiences. the customs, excises, and other taxes, which are to support these funds, depending on contingencies, upon exports, imports, and consumptions, must necessarily be of a very uncertain amount; but they have always been considerably more than was sufficient to answer the charge upon them. the surplusses therefore of the three great national funds, the aggregate, general, and south sea funds, over and above the interest and annuities charged upon them, are directed by statute 3 geo. i. c. 7. to be carried together, and to attend the disposition of parliament; and are usually denominated the _sinking_ fund, because originally destined to sink and lower the national debt. to this have been since added many other intire duties, granted in subsequent years; and the annual interest of the sums borrowed on their respective credits is charged on and payable out of the produce of the sinking fund. however the neat surplusses and savings, after all deductions paid, amount annually to a very considerable sum; particularly in the year ending at christmas 1764, to about two millions and a quarter. for, as the interest on the national debt has been at several times reduced, (by the consent of the proprietors, who had their option either to lower their interest or be paid their principal) the savings from the appropriated revenues must needs be extremely large. this sinking fund is the last resort of the nation; on which alone depend all the hopes we can entertain of ever discharging or moderating our incumbrances. and therefore the prudent application of the large sums, now arising from this fund, is a point of the utmost importance, and well worthy the serious attention of parliament; which has thereby been enabled, in this present year 1765, to reduce above two millions sterling of the public debt. but, before any part of the aggregate fund (the surplusses whereof are one of the chief ingredients that form the sinking fund) can be applied to diminish the principal of the public debt, it stands mortgaged by parliament to raise an annual sum for the maintenance of the king's houshold and the civil list. for this purpose, in the late reigns, the produce of certain branches of the excise and customs, the post-office, the duty on wine licences, the revenues of the remaining crown lands, the profits arising from courts of justice, (which articles include all the hereditary revenues of the crown) and also a clear annuity of 120000_l._ in money, were settled on the king for life, for the support of his majesty's houshold, and the honour and dignity of the crown. and, as the amount of these several branches was uncertain, (though in the last reign they were generally computed to raise almost a million) if they did not arise annually to 800,000_l._ the parliament engaged to make up the deficiency. but his present majesty having, soon after his accession, spontaneously signified his consent, that his own hereditary revenues might be so disposed of as might best conduce to the utility and satisfaction of the public, and having graciously accepted the limited sum of 800000_l._ _per annum_ for the support of his civil list (and that also charged with three life annuities, to the princess of wales, the duke of cumberland, and the princess amalie, to the amount of 77000_l._) the said hereditary and other revenues are now carried into and made a part of the aggregate fund, and the aggregate fund is charged with the payment of the whole annuity to the crown of 800000_l._ _per annum_[f]. hereby the revenues themselves, being put under the same care and management as the other branches of the public patrimony, will produce more and be better collected than heretofore; and the public is a gainer of upwards of 100000_l._ _per annum_ by this disinterested bounty of his majesty. the civil list, thus liquidated, together with the four millions and three quarters, interest of the national debt, and the two millions and a quarter produced from the sinking fund, make up the seven millions and three quarters _per annum_, neat money, which were before stated to be the annual produce of our _perpetual_ taxes; besides the immense, though uncertain, sums arising from the _annual_ taxes on land and malt, but which, at an average, may be calculated at more than two millions and a quarter; and, added to the preceding sum, make the clear produce of the taxes, exclusive of the charge of collecting, which are raised yearly on the people of this country, and returned into the king's exchequer, amount to upwards of ten millions sterling. [footnote f: stat. 1 geo. iii. c. 1.] the expences defrayed by the civil list are those that in any shape relate to civil government; as, the expenses of the houshold; all salaries to officers of state, to the judges, and every of the king's servants; the appointments to foreign embassadors; the maintenance of the royal family; the king's private expenses, or privy purse; and other very numerous outgoings, as secret service money, pensions, and other bounties: which sometimes have so far exceeded the revenues appointed for that purpose, that application has been made to parliament to discharge the debts contracted on the civil list; as particularly in 1724, when one million was granted for that purpose by the statute 11 geo. i. c. 17. the civil list is indeed properly the whole of the king's revenue in his own distinct capacity; the rest being rather the revenue of the public, or it's creditors, though collected, and distributed again, in the name and by the officers of the crown: it now standing in the same place, as the hereditary income did formerly; and, as that has gradually diminished, the parliamentary appointments have encreased. the whole revenue of queen elizabeth did not amount to more than 600000_l._ a year[g]: that of king charles i was[h] 800000_l._ and the revenue voted for king charles ii was[i] 1200000_l._ though it never in fact amounted to quite so much[k]. but it must be observed, that under these sums were included all manner of public expenses, among which lord clarendon in his speech to the parliament computed that the charge of the navy and land forces amounted annually to 800000_l._ which was ten times more than before the former troubles[l]. the same revenue, subject to the same charges, was settled on on [transcriber's note: duplicate word] king james ii[m]: but by the encrease of trade, and more frugal management, it amounted on an average to a million and half _per annum_, (besides other additional customs, granted by parliament[n], which produced an annual revenue of 400000_l._) out of which his fleet and army were maintained at the yearly expense of[o] 1100000_l._ after the revolution, when the parliament took into it's own hands the annual support of the forces, both maritime and military, a civil list revenue was settled on the new king and queen, amounting, with the hereditary duties, to 700000_l._ _per annum_[p]; and the same was continued to queen anne and king george i[q]. that of king george ii, we have seen, was nominally augmented to[r] 800000_l._ and in fact was considerably more. but that of his present majesty is expressly limited to that sum; and, by reason of the charges upon it, amounts at present to little more than 700000_l._ and upon the whole it is doubtless much better for the crown, and also for the people, to have the revenue settled upon the modern footing rather than the antient. for the crown; because it is more certain, and collected with greater ease: for the people; because they are now delivered from the feodal hardships, and other odious branches of the prerogative. and though complaints have sometimes been made of the encrease of the civil list, yet if we consider the sums that have been formerly granted, the limited extent under which it is now established, the revenues and prerogatives given up in lieu of it by the crown, and (above all) the diminution of the value of money compared with what it was worth in the last century, we must acknowlege these complaints to be void of any rational foundation; and that it is impossible to support that dignity, which a king of great britain should maintain, with an income in any degree less than what is now established by parliament. [footnote g: lord clar. continuation. 163.] [footnote h: com. journ. 4 sept. 1660.] [footnote i: _ibid._] [footnote k: _ibid._ 4 jun. 1663. lord clar. _ibid._] [footnote l: _ibid._ 165.] [footnote m: stat. 1 jac. ii. c. 1.] [footnote n: stat. 1 jac. ii. c. 3 & 4.] [footnote o: com. journ. 1 mar. 20 mar. 1688.] [footnote p: _ibid._ 14 mar. 1701.] [footnote q: _ibid._ 17 mar. 1701. 11 aug. 1714.] [footnote r: stat. 1 geo. ii. c. 1.] this finishes our enquiries into the fiscal prerogatives of the king; or his revenue, both ordinary and extraordinary. we have therefore now chalked out all the principal outlines of this vast title of the law, the supreme executive magistrate, or the king's majesty, considered in his several capacities and points of view. but, before we intirely dismiss this subject, it may not be improper to take a short comparative review of the power of the executive magistrate, or prerogative of the crown, as it stood in former days, and as it stands at present. and we cannot but observe, that most of the laws for ascertaining, limiting, and restraining this prerogative have been made within the compass of little more than a century past; from the petition of right in 3 car. i. to the present time. so that the powers of the crown are now to all appearance greatly curtailed and diminished since the reign of king james the first: particularly, by the abolition of the star chamber and high commission courts in the reign of charles the first, and by the disclaiming of martial law, and the power of levying taxes on the subject, by the same prince: by the disuse of forest laws for a century past: and by the many excellent provisions enacted under charles the second; especially, the abolition of military tenures, purveyance, and preemption; the _habeas corpus_ act; and the act to prevent the discontinuance of parliaments for above three years: and, since the revolution, by the strong and emphatical words in which our liberties are asserted in the bill of rights, and act of settlement; by the act for triennial, since turned into septennial, elections; by the exclusion of certain officers from the house of commons; by rendering the seats of the judges permanent, and their salaries independent; and by restraining the king's pardon from operating on parliamentary impeachments. besides all this, if we consider how the crown is impoverished and stripped of all it's antient revenues, so that it greatly depends on the liberality of parliament for it's necessary support and maintenance, we may perhaps be led to think, that the ballance is enclined pretty strongly to the popular scale, and that the executive magistrate has neither independence nor power enough left, to form that check upon the lords and commons, which the founders of our constitution intended. but, on the other hand, it is to be considered, that every prince, in the first parliament after his accession, has by long usage a truly royal addition to his hereditary revenue settled upon him for his life; and has never any occasion to apply to parliament for supplies, but upon some public necessity of the whole realm. this restores to him that constitutional independence, which at his first accession seems, it must be owned, to be wanting. and then, with regard to power, we may find perhaps that the hands of government are at least sufficiently strengthened; and that an english monarch is now in no danger of being overborne by either the nobility or the people. the instruments of power are not perhaps so open and avowed as they formerly were, and therefore are the less liable to jealous and invidious reflections; but they are not the weaker upon that account. in short, our national debt and taxes (besides the inconveniences before-mentioned) have also in their natural consequences thrown such a weight of power into the executive scale of government, as we cannot think was intended by our patriot ancestors; who gloriously struggled for the abolition of the then formidable parts of the prerogative; and by an unaccountable want of foresight established this system in their stead. the entire collection and management of so vast a revenue, being placed in the hands of the crown, have given rise to such a multitude of new officers, created by and removeable at the royal pleasure, that they have extended the influence of government to every corner of the nation. witness the commissioners, and the multitude of dependents on the customs, in every port of the kingdom; the commissioners of excise, and their numerous subalterns, in every inland district; the postmasters, and their servants, planted in every town, and upon every public road; the commissioners of the stamps, and their distributors, which are full as scattered and full as numerous; the officers of the salt duty, which, though a species of excise and conducted in the same manner, are yet made a distinct corps from the ordinary managers of that revenue; the surveyors of houses and windows; the receivers of the land tax; the managers of lotteries; and the commissioners of hackney coaches; all which are either mediately or immediately appointed by the crown, and removeable at pleasure without any reason assigned: these, it requires but little penetration to see, must give that power, on which they depend for subsistence, an influence most amazingly extensive. to this may be added the frequent opportunities of conferring particular obligations, by preference in loans, subscriptions, tickets, remittances, and other money-transactions, which will greatly encrease this influence; and that over those persons whose attachment, on account of their wealth, is frequently the most desirable. all this is the natural, though perhaps the unforeseen, consequence of erecting our funds of credit, and to support them establishing our present perpetual taxes: the whole of which is entirely new since the restoration in 1660; and by far the greatest part since the revolution in 1688. and the same may be said with regard to the officers in our numerous army, and the places which the army has created. all which put together gives the executive power so persuasive an energy with respect to the persons themselves, and so prevailing an interest with their friends and families, as will amply make amends for the loss of external prerogative. but, though this profusion of offices should have no effect on individuals, there is still another newly acquired branch of power; and that is, not the influence only, but the force of a disciplined army: paid indeed ultimately by the people, but immediately by the crown; raised by the crown, officered by the crown, commanded by the crown. they are kept on foot it is true only from year to year, and that by the power of parliament: but during that year they must, by the nature of our constitution, if raised at all, be at the absolute disposal of the crown. and there need but few words to demonstrate how great a trust is thereby reposed in the prince by his people. a trust, that is more than equivalent to a thousand little troublesome prerogatives. add to all this, that, besides the civil list, the immense revenue of seven millions sterling, which is annually paid to the creditors of the publick, or carried to the sinking fund, is first deposited in the royal exchequer, and thence issued out to the respective offices of payment. this revenue the people can never refuse to raise, because it is made perpetual by act of parliament: which also, when well considered, will appear to be a trust of great delicacy and high importance. upon the whole therefore i think it is clear, that, whatever may have become of the _nominal_, the _real_ power of the crown has not been too far weakened by any transactions in the last century. much is indeed given up; but much is also acquired. the stern commands of prerogative have yielded to the milder voice of influence; the slavish and exploded doctrine of non-resistance has given way to a military establishment by law; and to the disuse of parliaments has succeeded a parliamentary trust of an immense perpetual revenue. when, indeed, by the free operation of the sinking fund, our national debts shall be lessened; when the posture of foreign affairs, and the universal introduction of a well planned and national militia, will suffer our formidable army to be thinned and regulated; and when (in consequence of all) our taxes shall be gradually reduced; this adventitious power of the crown will slowly and imperceptibly diminish, as it slowly and imperceptibly rose. but, till that shall happen, it will be our especial duty, as good subjects and good englishmen, to reverence the crown, and yet guard against corrupt and servile influence from those who are intrusted with it's authority; to be loyal, yet free; obedient, and yet independent: and, above every thing, to hope that we may long, very long, continue to be governed by a sovereign, who, in all those public acts that have personally proceeded from himself, hath manifested the highest veneration for the free constitution of britain; hath already in more than one instance remarkably strengthened it's outworks; and will therefore never harbour a thought, or adopt a persuasion, in any the remotest degree detrimental to public liberty. chapter the ninth. of subordinate magistrates. in a former chapter of these commentaries[a] we distinguished magistrates into two kinds; supreme, or those in whom the sovereign power of the state resides; and subordinate, or those who act in an inferior secondary sphere. we have hitherto considered the former kind only, namely, the supreme legislative power or parliament, and the supreme executive power, which is the king: and are now to proceed to enquire into the rights and duties of the principal subordinate magistrates. [footnote a: ch. 2. pag. 142.] and herein we are not to investigate the powers and duties of his majesty's great officers of state, the lord treasurer, lord chamberlain, the principal secretaries, or the like; because i do not know that they are in that capacity in any considerable degree the objects of our laws, or have any very important share of magistracy conferred upon them: except that the secretaries of state are allowed the power of commitment, in order to bring offenders to trial[b]. neither shall i here treat of the office and authority of the lord chancellor, or the other judges of the superior courts of justice; because they will find a more proper place in the third part of these commentaries. nor shall i enter into any minute disquisitions, with regard to the rights and dignities of mayors and aldermen, or other magistrates of particular corporations; because these are mere private and strictly municipal rights, depending entirely upon the domestic constitution of their respective franchises. but the magistrates and officers, whose rights and duties it will be proper in this chapter to consider, are such as are generally in use and have a jurisdiction and authority dispersedly throughout the kingdom: which are, principally, sheriffs; coroners; justices of the peace; constables; surveyors of highways; and overseers of the poor. in treating of all which i shall enquire into, first, their antiquity and original; next, the manner in which they are appointed and may be removed; and, lastly, their rights and duties. and first of sheriffs. [footnote b: 1 leon. 70. 2 leon. 175. comb. 343. 5 mod. 84. salk. 347.] i. the sheriff is an officer of very great antiquity in this kingdom, his name being derived from two saxon words, shire reeve, the bailiff or officer of the shire. he is called in latin _vice-comes_, as being the deputy of the earl or _comes_; to whom the custody of the shire is said to have been committed at the first division of this kingdom into counties. but the earls in process of time, by reason of their high employments and attendance on the king's person, not being able to transact the business of the county, were delivered of that burden[c]; reserving to themselves the honour, but the labour was laid on the sheriff. so that now the sheriff does all the king's business in the county; and though he be still called _vice-comes_, yet he is entirely independent of, and not subject to the earl; the king by his letters patent committing _custodiam comitatus_ to the sheriff, and him alone. [footnote c: dalton of sheriffs, c. 1.] sheriffs were formerly chosen by the inhabitants of the several counties. in confirmation of which it was ordained by statute 28 edw. i. c. 8. that the people should have election of sheriffs in every shire, where the shrievalty is not of inheritance. for antiently in some counties, particularly on the borders, the sheriffs were hereditary; as i apprehend they are in scotland, and in the county of westmorland, to this day: and the city of london has also the inheritance of the shrievalty of middlesex vested in their body by charter[d]. the reason of these popular elections is assigned in the same statute, c. 13. "that the commons might chuse such as would not be a burthen to them." and herein appears plainly a strong trace of the democratical part of our constitution; in which form of government it is an indispensable requisite, that the people should chuse their own magistrates[e]. this election was in all probability not absolutely vested in the commons, but required the royal approbation. for in the gothic constitution, the judges of their county courts (which office is executed by our sheriff) were elected by the people, but confirmed by the king: and the form of their election was thus managed; the people, or _incolae territorii_, chose _twelve_ electors, and they nominated _three_ persons, _ex quibus rex unum confirmabat_[f]. but, with us in england, these popular elections, growing tumultuous, were put an end to by the statute 9 edw. ii. st. 2. which enacted, that the sheriffs should from thenceforth be assigned by the lord chancellor, treasurer, and the judges; as being persons in whom the same trust might with confidence be reposed. by statutes 14 edw. iii. c. 7. and 23 hen. vi. c. 8. the chancellor, treasurer, _chief_ justices, and _chief_ baron, are to make this election; and that on the morrow of all souls in the exchequer. but the custom now is (and has been at least ever since the time of fortescue[g], who was chief justice and chancellor to henry the sixth) that _all_ the judges, and certain other great officers, meet in the exchequer chamber on the morrow of all souls yearly, (which day is now altered to the morrow of st. martin by the act for abbreviating michaelmas term) and then and there nominate three persons to the king, who afterwards appoints one of them to be sheriff. this custom, of the _twelve_ judges nominating _three_ persons, seems borrowed from the gothic constitution beforementioned; with this difference, that among the goths the twelve nominors were first elected by the people themselves. and this usage of ours at it's first introduction, i am apt to believe, was founded upon some statute, though not now to be found among our printed laws: first, because it is materially different from the directions of all the statutes beforementioned; which it is hard to conceive that the judges would have countenanced by their concurrence, or that fortescue would have inserted in his book, unless by the authority of some statute: and also, because a statute is expressly referred to in the record, which sir edward coke tells us[h] he transcribed from the council book of 3 mar. 34 hen. vi. and which is in substance as follows. the king had of his own authority appointed a man sheriff of lincolnshire, which office he refused to take upon him: whereupon the opinions of the judges were taken, what should be done in this behalf. and the two chief justices, sir john fortescue and sir john prisot, delivered the unanimous opinion of them all; "that the king did an error when he made a person sheriff, that was not chosen and presented to him according to the _statute_; that the person refusing was liable to no fine for disobedience, as if he had been one of the _three_ persons chosen according to the tenor of the _statute_; that they would advise the king to have recourse to the _three_ persons that were chosen according to the _statute_, or that some other thrifty man be intreated to occupy the office for this year; and that, the next year, to eschew such inconveniences, the order of the _statute_ in this behalf made be observed." but, notwithstanding this unanimous resolution of all the judges of england, thus entered in the council book, some of our writers[i] have affirmed, that the king, by his prerogative, may name whom he pleases to be sheriff, whether chosen by the judges or no. this is grounded on a very particular case in the fifth year of queen elizabeth, when, by reason of the plague, there was no michaelmas term kept at westminster; so that the judges could not meet there _in crastino animarum_ to nominate the sheriffs: whereupon the queen named them herself, without such previous assembly, appointing for the most part one of the two remaining in the last year's list[k]. and this case, thus circumstanced, is the only precedent in our books for the making these extraordinary sheriffs. it is true, the reporter adds, that it was held that the queen by her prerogative might make a sheriff without the election of the judges, _non obstante aliquo statuto in contrarium_: but the doctrine of _non obstante_'s, which sets the prerogative above the laws, was effectually demolished by the bill of rights at the revolution, and abdicated westminster-hall when king james abdicated the kingdom. so that sheriffs cannot now be legally appointed, otherwise than according to the known and established law. [footnote d: 3 rep. 72.] [footnote e: montesq. sp. l. b. 2. c. 2.] [footnote f: stiernhook _de jure goth._ _l._ 1. _c._ 3.] [footnote g: _de l.l._ _c._ 24.] [footnote h: 2 inst. 559.] [footnote i: jenkins. 229.] [footnote k: dyer 225.] sheriffs, by virtue of several old statutes, are to continue in their office no longer than one year; and yet it hath been said[l] that a sheriff may be appointed _durante bene placito_, or during the king's pleasure; and so is the form of the royal writ[m]. therefore, till a new sheriff be named, his office cannot be determined, unless by his own death, or the demise of the king; in which last case it was usual for the successor to send a new writ to the old sheriff[n]: but now by statute 1 ann. st. 1. c. 8. all officers appointed by the preceding king may hold their offices for six months after the king's demise, unless sooner displaced by the successor. we may farther observe, that by statute 1 ric. ii. c. 11. no man, that has served the office of sheriff for one year, can be compelled to serve the same again within three years after. [footnote l: 4 rep. 32.] [footnote m: dalt. of sheriffs. 8.] [footnote n: dalt. 7.] we shall find it is of the utmost importance to have the sheriff appointed according to law, when we consider his power and duty. these are either as a judge, as the keeper of the king's peace, as a ministerial officer of the superior courts of justice, or as the king's bailiff. in his judicial capacity he is to hear and determine all causes of forty shillings value and under, in his county court, of which more in it's proper place: and he has also judicial power in divers other civil cases[o]. he is likewise to decide the elections of knights of the shire, (subject to the control of the house of commons) of coroners, and of verderors; to judge of the qualification of voters, and to return such as he shall determine to be duly elected. [footnote o: dalt. c. 4.] as the keeper of the king's peace, both by common law and special commission, he is the first man in the county, and superior in rank to any nobleman therein, during his office[p]. he may apprehend, and commit to prison, all persons who break the peace, or attempt to break it: and may bind any one in a recognizance to keep the king's peace. he may, and is bound _ex officio_ to, pursue and take all traitors, murderers, felons, and other misdoers, and commit them to gaol for safe custody. he is also to defend his county against any of the king's enemies when they come into the land: and for this purpose, as well as for keeping the peace and pursuing felons, he may command all the people of his county to attend him; which is called the _posse comitatus_, or power of the county[q]: which summons every person above fifteen years old, and under the degree of a peer, is bound to attend upon warning[r], under pain of fine and imprisonment[s]. but though the sheriff is thus the principal conservator of the peace in his county, yet, by the express directions of the great charter[t], he, together with the constable, coroner, and certain other officers of the king, are forbidden to hold any pleas of the crown, or, in other words, to try any criminal offence. for it would be highly unbecoming, that the executioners of justice should be also the judges; should impose, as well as levy, fines and amercements; should one day condemn a man to death, and personally execute him the next. neither may he act as an ordinary justice of the peace during the time of his office[u]: for this would be equally inconsistent; he being in many respects the servant of the justices. [footnote p: 1 roll. rep. 237.] [footnote q: dalt. c. 95.] [footnote r: lamb. eiren. 315.] [footnote s: stat. 2 hen. v. c. 8.] [footnote t: _cap._ 17.] [footnote u: stat. 1 mar. st. 2. c. 8.] in his ministerial capacity the sheriff is bound to execute all process issuing from the king's courts of justice. in the commencement of civil causes, he is to serve the writ, to arrest, and to take bail; when the cause comes to trial, he must summon and return the jury; when it is determined, he must see the judgment of the court carried into execution. in criminal matters, he also arrests and imprisons, he returns the jury, he has the custody of the delinquent, and he executes the sentence of the court, though it extend to death itself. as the king's bailiff, it is his business to preserve the rights of the king within his bailiwick; for so his county is frequently called in the writs: a word introduced by the princes of the norman line; in imitation of the french, whose territory is divided into bailiwicks, as that of england into counties[w]. he must seise to the king's use all lands devolved to the crown by attainder or escheat; must levy all fines and forfeitures; must seise and keep all waifs, wrecks, estrays, and the like, unless they be granted to some subject; and must also collect the king's rents within his bailiwick, if commanded by process from the exchequer[x]. [footnote w: fortesc. _de l.l._ c. 24.] [footnote x: dalt. c. 9.] to execute these various offices, the sheriff has under him many inferior officers; an under-sheriff, bailiffs, and gaolers; who must neither buy, sell, nor farm their offices, on forfeiture of 500_l._[y] [footnote y: stat. 3 geo. i. c. 15.] the under-sheriff usually performs all the duties of the office; a very few only excepted, where the personal presence of the high-sheriff is necessary. but no under-sheriff shall abide in his office above one year[z]; and if he does, by statute 23 hen. vi. c. 8. he forfeits 200_l._ a very large penalty in those early days. and no under-sheriff or sheriff's officer shall practice as an attorney, during the time he continues in such office[a]: for this would be a great inlet to partiality and oppression. but these salutary regulations are shamefully evaded, by practising in the names of other attorneys, and putting in sham deputies by way of nominal under-sheriffs: by reason of which, says dalton[b], the under-sheriffs and bailiffs do grow so cunning in their several places, that they are able to deceive, and it may be well feared that many of them do deceive, both the king, the high-sheriff, and the county. [footnote z: stat. 42 edw. iii. c. 9.] [footnote a: stat. 1 hen. v. c. 4.] [footnote b: of sheriffs, c. 115.] bailiffs, or sheriff's officers, are either bailiffs of hundreds, or special bailiffs. bailiffs of hundreds are officers appointed over those respective districts by the sheriffs, to collect fines therein; to summon juries; to attend the judges and justices at the assises, and quarter sessions; and also to execute writs and process in the several hundreds. but, as these are generally plain men, and not thoroughly skilful in this latter part of their office, that of serving writs, and making arrests and executions, it is now usual to join special bailiffs with them; who are generally mean persons employed by the sheriffs on account only of their adroitness and dexterity in hunting and seising their prey. the sheriff being answerable for the misdemesnors of these bailiffs, they are therefore usually bound in a bond for the due execution of their office, and thence are called bound-bailiffs; which the common people have corrupted into a much more homely appellation. gaolers are also the servants of the sheriff, and he must be responsible for their conduct. their business is to keep safely all such persons as are committed to them by lawful warrant: and, if they suffer any such to escape, the sheriff shall answer it to the king, if it be a criminal matter; or, in a civil case, to the party injured[c]. and to this end the sheriff must[d] have lands sufficient within the county to answer the king and his people. the abuses of goalers and sheriff's officers toward the unfortunate persons in their custody are well restrained and guarded against by statute 32 geo. ii. c. 28. [footnote c: dalt. c. 118. 4 rep. 34.] [footnote d: stat. 13 & 14 car. ii. c. 21.] the vast expense, which custom had introduced in serving the office of high-sheriff, was grown such a burthen to the subject, that it was enacted, by statute 13 & 14 car. ii. c. 21. that no sheriff should keep any table at the assises, except for his own family, or give any presents to the judges or their servants, or have more than forty men in livery; yet, for the sake of safety and decency, he may not have less than twenty men in england and twelve in wales; upon forfeiture, in any of these cases, of 200_l._ ii. the coroner's is also a very antient office at the common law. he is called coroner, _coronator_, because he hath principally to do with pleas of the crown, or such wherein the king is more immediately concerned[e]. and in this light the lord chief justice of the king's bench is the principal coroner in the kingdom, and may (if he pleases) exercise the jurisdiction of a coroner in any part of the realm[f]. but there are also particular coroners for every county of england; usually four, but sometimes six, and sometimes fewer[g]. this officer[h] is of equal antiquity with the sheriff; and was ordained together with him to keep the peace, when the earls gave up the wardship of the county. [footnote e: 2 inst. 31. 4 inst. 271.] [footnote f: 4 rep. 57.] [footnote g: f.n.b. 163.] [footnote h: mirror, c. 1. â§. 3.] he is still chosen by all the freeholders in the county court, as by the policy of our antient laws the sheriffs, and conservators of the peace, and all other officers were, who were concerned in matters that affected the liberty of the people[i]; and as verderors of the forests still are, whose business it is to stand between the prerogative and the subject in the execution of the forest laws. for this purpose there is a writ at common law _de coronatore eligendo_[k]: in which it is expressly commanded the sheriff, "_quod talem eligi faciat, qui melius et sciat, et velit, et possit, officio illi intendere_." and, in order to effect this the more surely, it was enacted by the statute of westm. i[l], that none but lawful and discreet knights should be chosen. but it seems it is now sufficient if a man have lands enough to be made a knight, whether he be really knighted or not[m]: and there was an instance in the 5 edw. iii. of a man being removed from this office, because he was only a merchant[n]. the coroner ought also to have estate sufficient to maintain the dignity of his office, and answer any fines that may be set upon him for his misbehaviour[o]: and if he have not enough to answer, his fine shall be levyed on the county, as a punishment for electing an insufficient officer[p]. now indeed, through the culpable neglect of gentlemen of property, this office has been suffered to fall into disrepute, and get into low and indigent hands: so that, although formerly no coroner would condescend to be paid for serving his country, and they were by the aforesaid statute of westm. i. expressly forbidden to take a reward, under pain of great forfeiture to the king; yet for many years past they have only desired to be chosen for the sake of their perquisites; being allowed fees for their attendance by the statute 3 hen. vii. c. 1. which sir edward coke complains of heavily[q]; though they have since his time been much enlarged[r]. [footnote i: 2 inst. 558.] [footnote k: f.n.b. 163.] [footnote l: 3 edw. i. c. 10.] [footnote m: f.n.b. 163, 164.] [footnote n: 2 inst. 32.] [footnote o: f.n.b. 163, 164.] [footnote p: mirr. c. 1. â§. 3. 2 inst. 175.] [footnote q: 2 inst. 210.] [footnote r: stat. 25 geo. ii. c. 29.] the coroner is chosen for life: but may be removed, either by being made sheriff, or chosen verderor, which are offices incompatible with the other; or by the king's writ _de coronatore exonerando_, for a cause to be therein assigned, as that he is engaged in other business, is incapacitated by years or sickness, hath not a sufficient estate in the county, or lives in an inconvenient part of it[s]. and by the statute 25 geo. ii. c. 29. extortion, neglect, or misbehaviour, are also made causes of removal. [footnote s: f.n.b. 163, 164.] the office and power of a coroner are also, like those of a sheriff, either judicial or ministerial; but principally judicial. this is in great measure ascertained by statute 4 edw. i. _de officio coronatoris_; and consists, first, in enquiring (when any person is slain or dies suddenly) concerning the manner of his death. and this must be "_super visum corporis_[t];" for, if the body be not found, the coroner cannot sit[u]. he must also sit at the very place where the death happened; and his enquiry is made by a jury from four, five, or six of the neighbouring towns, over whom he is to preside. if any be found guilty by this inquest of murder, he is to commit to prison for further trial, and is also to enquire concerning their lands, goods and chattels, which are forfeited thereby: but, whether it be murder or not, he must enquire whether any deodand has accrued to the king, or the lord of the franchise, by this death: and must certify the whole of this inquisition to the court of king's bench, or the next assises. another branch of his office is to enquire concerning shipwrecks; and certify whether wreck or not, and who is in possession of the goods. concerning treasure trove, he is also to enquire who were the finders, and where it is, and whether any one be suspected of having found and concealed a treasure; "and that may be well perceived (saith the old statute of edw. i.) where one liveth riotously, haunting taverns, and hath done so of long time:" whereupon he might be attached, and held to bail, upon this suspicion only. [footnote t: 4 inst. 271.] [footnote u: thus, in the gothic constitution, before any fine was payable by the neighbourhood, for the slaughter of a man therein, "_de corpore delicti constare oportebat; i.e. non tam fuisse aliquem in territorio isto mortuum inventum, quam vulneratum et caesum. potest enim homo etiam ex alia causa subito mori_." stiernhook _de jure gothor._ _l._ 3. _c._ 4.] the ministerial office of the coroner is only as the sheriff's substitute. for when just exception can be taken to the sheriff, for suspicion of partiality, (as that he is interested in the suit, or of kindred to either plaintiff or defendant) the process must then be awarded to the coroner, instead of the sheriff, for execution of the king's writs[w]. [footnote w: 4 inst. 271.] iii. the next species of subordinate magistrates, whom i am to consider, are justices of the peace; the principal of whom is the _custos rotulorum_, or keeper of the records of the county. the common law hath ever had a special care and regard for the conservation of the peace; for peace is the very end and foundation of civil society. and therefore, before the present constitution of justices was invented, there were peculiar officers appointed by the common law for the maintenance of the public peace. of these some had, and still have, this power annexed to other offices which they hold; others had it merely by itself, and were thence named _custodes_ or _conservatores pacis_. those that were so _virtute officii_ still continue; but the latter sort are superseded by the modern justices. the kings majesty[x] is, by his office and dignity royal, the principal conservator of the peace within all his dominions; and may give authority to any other to see the peace kept, and to punish such as break it: hence it is usually called the king's peace. the lord chancellor or keeper, the lord treasurer, the lord high steward of england, the lord mareschal, and lord high constable of england (when any such officers are in being) and all the justices of the court of king's bench (by virtue of their offices) and the master of the rolls (by prescription) are general conservators of the peace throughout the whole kingdom, and may commit all breakers of it, or bind them in recognizances to keep it[y]: the other judges are only so in their own courts. the coroner is also a conservator of the peace within his own county[z]; as is also the sheriff[a]; and both of them may take a recognizance or security for the peace. constables, tythingmen, and the like, are also conservators of the peace within their own jurisdictions; and may apprehend all breakers of the peace, and commit them till they find sureties for their keeping it[b]. [footnote x: lambard. eirenarch. 12.] [footnote y: lamb. 12.] [footnote z: britton. 3.] [footnote a: f.n.b. 81.] [footnote b: lamb. 14.] those that were, without any office, simply and merely conservators of the peace, were chosen by the freeholders in full county court before the sheriff; the writ for their election directing them to be chosen "_de probioribus et melioribus in comitatu suo in custodes pacis_[c]." but when queen isabel, the wife of edward ii, had contrived to depose her husband by a forced resignation of the crown, and had set up his son edward iii in his place; this, being a thing then without example in england, it was feared would much alarm the people; especially as the old king was living, though hurried about from castle to castle; till at last he met with an untimely death. to prevent therefore any risings, or other disturbance of the peace, the new king sent writs to all the sheriffs in england, the form of which is preserved by thomas walsingham[d], giving a plausible account of the manner of his obtaining the crown; to wit, that it was done _ipsius patris beneplacito_: and withal commanding each sheriff that the peace be kept throughout his bailiwick, on pain and peril of disinheritance and loss of life and limb. and in a few weeks after the date of these writs, it was ordained in parliament[e], that, for the better maintaining and keeping of the peace in every county, good men and lawful, which were no maintainers of evil, or barretors in the country, should be _assigned_ to keep the peace. and in this manner, and upon this occasion, was the election of the conservators of the peace taken from the people, and given to the king[f]; this assignment being construed to be by the king's commission[g]. but still they were called only conservators, wardens, or keepers of the peace, till the statute 34 edw. iii. c. 1. gave them the power of trying felonies; and then they acquired the more honorable appellation of justices[h]. [footnote c: lamb. 16.] [footnote d: hist. _a.d._ 1327.] [footnote e: stat. 1 edw. iii. c. 16.] [footnote f: lamb. 20.] [footnote g: stat. 4 edw. iii. c. 2. and 18 edw. iii. st. 2. c. 2.] [footnote h: lamb. 23.] these justices are appointed by the king's special commission under the great seal, the form of which was settled by all the judges, _a.d._ 1590[i]. this appoints them all[k], jointly and severally, to keep the peace, and any two or more of them to enquire of and determine felonies, and other misdemesnors: in which number some particular justices, or one of them, are directed to be always included, and no business to be done without their presence; the words of the commission running thus, "_quorum aliquem vestrum, a. b. c. d. &c. unum esse volumus_;" whence the persons so named are usually called justices of the _quorum_. and formerly it was customary to appoint only a select number of justices, eminent for their skill and discretion, to be of the _quorum_; but now the practice is to advance almost all of them to that dignity, naming them all over again in the _quorum_ clause, except perhaps only some one inconsiderable person for the sake of propriety: and no exception is now allowable, for not expressing in the form of warrants, &c, that the justice who issued them is of the _quorum_[l]. [footnote i: lamb. 43.] [footnote k: see the form itself, lamb. 35. burn. tit. justices, â§. 1.] [footnote l: stat. 26 geo. ii. c. 27.] touching the number and qualifications of these justices; it was ordained by statute 18 edw. iii. c. 2. that _two_, or _three_, of the best reputation in each county shall be assigned to be keepers of the peace. but these being found rather too few for that purpose, it was provided by statute 34 edw. iii. c. 1. that one lord, and three, or four, of the most worthy men in the county, with some learned in the law, shall be made justices in every county. but afterwards the number of justices, through the ambition of private persons, became so large, that it was thought necessary by statute 12 ric. ii. c. 10. and 14 ric ii. c. 11. to restrain them at first to six, and afterwards to eight only. but this rule is now disregarded, and the cause seems to be (as lambard observed long ago[m]) that the growing number of statute laws, committed from time to time to the charge of justices of the peace, have occasioned also (and very reasonably) their encrease to a larger number. and, as to their qualifications, the statutes just cited direct them to be of the best reputation, and most worthy men in the county: and the statute 13 ric. ii. c. 10. orders them to be of the most sufficient knights, esquires, and gentlemen of the law. also by statute 2 hen. v. st. 1. c. 4. and st. 2. c. 1. they must be resident in their several counties. and because, contrary to these statutes, men of small substance had crept into the commission, whose poverty made them both covetous and contemptible, it was enacted by statute 18 hen. vi. c. 11. that no justice should be put in commission, if he had not lands to the value of 20_l._ _per annum_. and, the rate of money being greatly altered since that time, it is now enacted by statute 5 geo. ii. c. 11. that every justice, except as is therein excepted, shall have 100_l._ _per annum_ clear of all deductions; and, if he acts without such qualification, he shall forfeit 100_l._ which[n] is almost an equivalent to the 20_l._ _per annum_ required in henry the sixth's time: and of this qualification[o] the justice must now make oath. also it is provided by the act 5 geo. ii. that no practising attorney, solicitor, or proctor, shall be capable of acting as a justice of the peace. [footnote m: lamb. 34.] [footnote n: see bishop fleetwood's calculations in his _chronicon pretiosum_.] [footnote o: stat. 18 geo. ii. c. 20.] as the office of these justices is conferred by the king, so it subsists only during his pleasure; and is determinable, 1. by the demise of the crown; that is, in six months after[p]. 2. by express writ under the great seal[q], discharging any particular person, from being any longer justice. 3. by superseding the commission by writ of _supersedeas_, which suspends the power of all the justices, but does not totally destroy it; seeing it may be revived again by another writ, called a _procedendo_. 4. by a new commission, which virtually, though silently, discharges all the former justices that are not included therein; for two commissions cannot subsist at once. 5. by accession of the office of sheriff or coroner[r]. formerly it was thought, that if a man was named in any commission of the peace, and had afterwards a new dignity conferred upon him, that this determined his office; he no longer answering the description of the commission: but now[s] it is provided, that notwithstanding a new title of dignity, the justice on whom it is conferred shall still continue a justice. [footnote p: stat. 1 ann. c. 8.] [footnote q: lamb. 67.] [footnote r: stat. 1 mar. st. 1. c. 8.] [footnote s: stat. 1 edw. vi. c. 7.] the power, office, and duty of a justice of the peace depend on his commission, and on the several statutes, which have created objects of his jurisdiction. his commission, first, empowers him singly to conserve the peace; and thereby gives him all the power of the antient conservators at the common law, in suppressing riots and affrays, in taking securities for the peace, and in apprehending and committing felons and other inferior criminals. it also empowers any two or more of them to hear and determine all felonies and other offences; which is the ground of their jurisdiction at sessions, of which more will be said in it's proper place. and as to the powers given to one, two, or more justices by the several statutes, that from time to time have heaped upon them such an infinite variety of business, that few care to undertake, and fewer understand, the office; they are such and of so great importance to the public, that the country is greatly obliged to any worthy magistrate, that without sinister views of his own will engage in this troublesome service. and therefore, if a well meaning justice makes any undesigned slip in his practice, great lenity and indulgence is shewn to him in the courts of law; and there are many statutes made to protect him in the upright discharge of his office[t]: which, among other privileges, prohibit such justices from being sued for any oversights without notice beforehand; and stop all suits begun, on tender made of sufficient amends. but, on the other hand, any malicious or tyrannical abuse of their office is sure to be severely punished; and all persons who recover a verdict against a justice, for any wilful or malicious injury, are entitled to double costs. [footnote t: stat. 7 jac. i. c. 5. 21 jac. i. c. 12. 24 geo. ii. c. 44.] it is impossible upon our present plan to enter minutely into the particulars of the accumulated authority, thus committed to the charge of these magistrates. i must therefore refer myself at present to such subsequent parts of these commentaries, as will in their turns comprize almost every object of the justices' jurisdiction: and in the mean time recommend to the student the perusal of mr lambard's _eirenarcha_, and dr burn's _justice of the peace_; wherein he will find every thing relative to this subject, both in antient and modern practice, collected with great care and accuracy, and disposed in a most clear and judicious method. i shall next consider some officers of lower rank than those which have gone before, and of more confined jurisdiction; but still such as are universally in use through every part of the kingdom. iv. fourthly, then, of the constable. the word constable is frequently said to be derived from the saxon, koning-staple, and to signify the support of the king. but, as we borrowed the name as well as the office of constable from the french, i am rather inclined to deduce it, with sir h. spelman and dr cowel, from that language, wherein it is plainly derived from the latin _comes stabuli_, an officer well known in the empire; so called because, like the great constable of france, as well as the lord high constable of england, he was to regulate all matters of chivalry, tilts, turnaments, and feats of arms, which were performed on horseback. this great office of lord high constable hath been disused in england, except only upon great and solemn occasions, as the king's coronation and the like, ever since the attainder of stafford duke of buckingham under king henry viii; as in france it was suppressed about a century after by an edict of louis xiii[u]: but from his office, says lambard[w], this lower constableship was at first drawn and fetched, and is as it were a very finger of that hand. for the statute of winchester[x], which first appoints them, directs that, for the better keeping of the peace, two constables in every hundred and franchise shall inspect all matters relating to _arms_ and _armour_. [footnote u: philips's life of pole. ii. 111.] [footnote w: of constables, 5.] [footnote x: 13 edw. i. c. 6.] constables are of two sorts, high constables, and petty constables. the former were first ordained by the statute of winchester, as before-mentioned; and are appointed at the court leets of the franchise or hundred over which they preside, or, in default of that, by the justices at their quarter sessions; and are removeable by the same authority that appoints them[y]. the petty constables are inferior officers in every town and parish, subordinate to the high constable of the hundred, first instituted about the reign of edward iii[z]. these petty constables have two offices united in them; the one antient, the other modern. their antient office is that of headborough, tithing-man, or borsholder; of whom we formerly spoke[a], and who are as antient as the time of king alfred: their more modern office is that of constable merely; which was appointed (as was observed) so lately as the reign of edward iii, in order to assist the high constable[b]. and in general the antient headboroughs, tithing-men, and borsholders, were made use of to serve as petty constables; though not so generally, but that in many places they still continue distinct officers from the constable. they are all chosen by the jury at the court leet; or, if no court leet be held, are appointed by two justices of the peace[c]. [footnote y: salk. 150.] [footnote z: spelm. gloss. 148.] [footnote a: pag. 110.] [footnote b: lamb. 9.] [footnote c: stat. 14 & 15 car. ii. c. 12.] the general duty of all constables, both high and petty, as well as of the other officers, is to keep the king's peace in their several districts; and to that purpose they are armed with very large powers, of arresting, and imprisoning, of breaking open houses, and the like: of the extent of which powers, considering what manner of men are for the most part put upon these offices, it is perhaps very well that they are generally kept in ignorance. one of their principal duties, arising from the statute of winchester, which appoints them, is to keep watch and ward in their respective jurisdictions. ward, guard, or _custodia_, is chiefly intended of the day time, in order to apprehend rioters, and robbers on the highways; the manner of doing which is left to the discretion of the justices of the peace and the constable[d], the hundred being however answerable for all robberies committed therein, by day light, for having kept negligent guard. watch is properly applicable to the night only, (being called among our teutonic ancestors _wacht_ or _wacta_[e]) and it begins at the time when ward ends, and ends when that begins; for, by the statute of winchester, in walled towns the gates shall be closed from sunsetting to sunrising, and watch shall be kept in every borough and town, especially in the summer season, to apprehend all rogues, vagabonds, and night-walkers, and make them give an account of themselves. the constable may appoint watchmen at his discretion, regulated by the custom of the place; and these, being his deputies, have for the time being the authority of their principal. but, with regard to the infinite number of other minute duties, that are laid upon constables by a diversity of statutes, i must again refer to mr lambard and dr burn; in whose compilations may be also seen, what duties belong to the constable or tything-man indifferently, and what to the constable only: for the constable may do whatever the tything-man may; but it does not hold _e converso_; for the tithing-man has not an equal power with the constable. [footnote d: dalt. just. c. 104.] [footnote e: _excubias et explorationes quas wactas vocant._ _capitular. hludovic. pii._ _cap._ 1. _a.d._ 815.] v. we are next to consider the surveyors of the highways. every parish is bound of common right to keep the high roads, that go through it, in good and sufficient repair; unless by reason of the tenure of lands, or otherwise, this care is consigned to some particular private person. from this burthen no man was exempt by our antient laws, whatever other immunities he might enjoy: this being part of the _trinoda necessitas_, to which every man's estate was subject; viz. _expeditio contra hostem, arcium constructio, et pontium reparatio_: for, though the reparation of bridges only is expressed, yet that of roads also must be understood; as in the roman law, _ad instructiones reparationesque itinerum et pontium, nullum genus hominum, nulliusque dignitatis ac venerationis meritis, cessare oportet_[f]. and indeed now, for the most part, the care of the roads only seems to be left to parishes; that of bridges being in great measure devolved upon the county at large, by statute 22 hen. viii. c. 5. if the parish neglected these repairs, they might formerly, as they may still, be indicted for such their neglect: but it was not then incumbent on any particular officer to call the parish together, and set them upon this work; for which reason by the statute 2 & 3 ph. & m. c. 8. surveyors of the highways were ordered to be chosen in every parish[g]. [footnote f: _c._ 11. 74. 4.] [footnote g: this office, mr dalton (just. cap. 50.) says, exactly answers that of the _curatores viarum_ of the romans: but, i should guess that theirs was an office of rather more dignity and authority than ours, not only from comparing the method of making and mending the roman ways with those of our country parishes; but also because one thermus, who was the curator of the flaminian way, was candidate for the consulship with julius caesar. (_cic. ad attic._ _l._ 1. _ep._ 1.)] these surveyors were originally, according to the statute of philip and mary, to be appointed by the constable and churchwardens of the parish; but now[h] they are constituted by two neighbouring justices, out of such substantial inhabitants as have either 10_l._ _per annum_ of their own, or rent 30_l._ a year, or are worth in personal estate 100_l._ [footnote h: stat. 3 w. & m. c. 12.] their office and duty consists in putting in execution a variety of statutes for the repairs of the highways; that is, of ways leading from one town to another: by which it is enacted, 1. that they may remove all annoyances in the highways, or give notice to the owner to remove them; who is liable to penalties on noncompliance. 2. they are to call together all the inhabitants of the parish, six days in every year, to labour in repairing the highways; all persons keeping draughts, or occupying lands, being obliged to send a team for every draught, and for every 50_l._ a year, which they keep or occupy; and all other persons to work or find a labourer. the work must be completed before harvest; as well for providing a good road for carrying in the corn, as also because all hands are then supposed to be employed in harvest work. and every cartway must be made eight feet wide at the least[i]; and may be increased by the quarter sessions to the breadth of four and twenty feet. 3. the surveyors may lay out their own money in purchasing materials for repairs, where there is not sufficient within the parish, and shall be reimbursed by a rate, to be allowed at a special sessions. 4. in case the personal labour of the parish be not sufficient, the surveyors, with the consent of the quarter sessions, may levy a rate (not exceeding 6_d._ in the pound) on the parish, in aid of the personal duty; for the due application of which they are to account upon oath. as for turnpikes, which are now universally introduced in aid of such rates, and the law relating to them, these depend entirely on the particular powers granted in the several road acts, and therefore have nothing to do with this compendium of general law. [footnote i: this, by the laws of the twelve tables at rome, was the standard for roads that were straight; but, in winding ways, the breadth was directed to be sixteen feet. _ff._ 8. 3. 8.] vi. i proceed therefore, lastly, to consider the overseers of the poor; their original, appointment, and duty. the poor of england, till the time of henry viii, subsisted entirely upon private benevolence, and the charity of welldisposed christians. for, though it appears by the mirrour[k], that by the common law the poor were to be "sustained by parsons, rectors of the church, and the parishioners; so that none of them dye for default of sustenance;" and though by the statutes 12 ric. ii. c. 7. and 19 hen. vii. c. 12. the poor are directed to be sustained in the cities or towns wherein they were born, or such wherein they had dwelt for three years (which seem to be the first rudiments of parish settlements) yet till the statute 27 hen. viii. c. 26. i find no compulsory method chalked out for this purpose: but the poor seem to have been left to such relief as the humanity of their neighbours would afford them. the monasteries were, in particular, their principal resource; and, among other bad effects which attended the monastic institutions, it was not perhaps one of the least (though frequently esteemed quite otherwise) that they supported and fed a very numerous and very idle poor, whose sustenance depended upon what was daily distributed in alms at the gates of the religious houses. but, upon the total dissolution of these, the inconvenience of thus encouraging the poor in habits of indolence and beggary was quickly felt throughout the kingdom: and abundance of statutes were made in the reign of king henry the eighth, for providing for the poor and impotent; which, the preambles to some of them recite, had of late years _strangely_ increased. these poor were principally of two sorts: sick and impotent, and therefore unable to work; idle and sturdy, and therefore able, but not willing, to exercise any honest employment. to provide in some measure for both of these, in and about the metropolis, his son edward the sixth founded three royal hospitals; christ's, and st. thomas's, for the relief of the impotent through infancy or sickness; and bridewell for the punishment and employment of the vigorous and idle. but these were far from being sufficient for the care of the poor throughout the kingdom at large; and therefore, after many other fruitless experiments, by statute 43 eliz. c. 2. overseers of the poor were appointed in every parish. [footnote k: c. 1. â§. 3.] by virtue of the statute last mentioned, these overseers are to be nominated yearly in easter-week, or within one month after, by two justices dwelling near the parish. they must be substantial householders, and so expressed to be in the appointment of the justices[l]. [footnote l: 2 lord raym. 1394.] their office and duty, according to the same statute, are principally these: first, to raise competent sums for the necessary relief of the poor, impotent, old, blind, and such other, being poor and not able to work: and, secondly, to provide work for such as are able, and cannot otherwise get employment: but this latter part of their duty, which, according to the wise regulations of that salutary statute, should go hand in hand with the other, is now most shamefully neglected. however, for these joint purposes, they are empowered to make and levy rates upon the several inhabitants of the parish, by the same act of parliament; which has been farther explained and enforced by several subsequent statutes. the two great objects of this statute seem to have been, 1. to relieve the impotent poor, and them only. 2. to find employment for such as are able to work: and this principally by providing stocks to be worked up at home, which perhaps might be more beneficial than accumulating all the poor in one common work-house; a practice which tends to destroy all domestic connexions (the only felicity of the honest and industrious labourer) and to put the sober and diligent upon a level, in point of their earnings, with those who are dissolute and idle. whereas, if none were to be relieved but those who are incapable to get their livings, and that in proportion to their incapacity; if no children were to be removed from their parents, but such as are brought up in rags and idleness; and if every poor man and his family were employed whenever they requested it, and were allowed the whole profits of their labour;--a spirit of chearful industry would soon diffuse itself through every cottage; work would become easy and habitual, when absolutely necessary to their daily subsistence; and the most indigent peasant would go through his task without a murmur, if assured that he and his children (when incapable of work through infancy, age, or infirmity) would then, and then only, be intitled to support from his opulent neighbours. this appears to have been the plan of the statute of queen elizabeth; in which the only defect was confining the management of the poor to small, parochial, districts; which are frequently incapable of furnishing proper work, or providing an able director. however, the laborious poor were then at liberty to seek employment wherever it was to be had; none being obliged to reside in the places of their settlement, but such as were unable or unwilling to work; and those places of settlement being only such where they were born, or had made their abode, originally for three years[m], and afterwards (in the case of vagabonds) for one year only[n]. [footnote m: stat. 19 hen. vii. c. 12. 1 edw. vi. c. 3. 3 edw. vi. c. 16. 14 eliz. c. 5.] [footnote n: stat. 39 eliz. c. 4.] after the restoration, a very different plan was adopted, which has rendered the employment of the poor more difficult, by authorizing the subdivision of parishes; has greatly increased their number, by confining them all to their respective districts; has given birth to the intricacy of our poor-laws, by multiplying and rendering more easy the methods of gaining settlements; and, in consequence, has created an infinity of expensive lawsuits between contending neighbourhoods, concerning those settlements and removals. by the statute 13 & 14 car. ii. c. 12. a legal settlement was declared to be gained by birth, inhabitancy, apprenticeship, or service for forty days; within which period all intruders were made removeable from any parish by two justices of the peace, unless they settled in a tenement of the annual value of 10_l._ the frauds, naturally consequent upon this provision, which gave a settlement by so short a residence, produced the statute 1 jac. ii. c. 17. which directed notice in writing to be delivered to the parish officers, before a settlement could be gained by such residence. subsequent provisions allowed other circumstances of notoriety to be equivalent to such notice given; and those circumstances have from time to time been altered, enlarged, or restrained, whenever the experience of new inconveniences, arising daily from new regulations, suggested the necessity of a remedy. and the doctrine of certificates was invented, by way of counterpoise, to restrain a man and his family from acquiring a new settlement by any length of residence whatever, unless in two particular excepted cases; which makes parishes very cautious of giving such certificates, and of course confines the poor at home, where frequently no adequate employment can be had. the law of settlements may be therefore now reduced to the following general heads; or, a settlement in a parish may be acquired, 1. by birth; which is always _prima facie_ the place of settlement, until some other can be shewn[o]. this is also always the place of settlement of a bastard child; for a bastard, having in the eye of the law no father, cannot be referred to _his_ settlement, as other children may[p]. but, in legitimate children, though the place of birth be _prima facie_ the settlement, yet it is not conclusively so; for there are, 2. settlements by parentage, being the settlement of one's father or mother: all children being really settled in the parish where their parents are settled, until they get a new settlement for themselves[q]. a new settlement may be acquired several ways; as, 3. by marriage. for a woman, marrying a man that is settled in another parish, changes her own: the law not permitting the separation of husband and wife[r]. but if the man be a foreigner, and has no settlement, her's is suspended during his life, if he be able to maintain her; but after his death she may return again to her old settlement[s]. the other methods of acquiring settlements in any parish are all reducible to this one, of forty days residence therein: but this forty days residence (which is construed to be lodging or lying there) must not be by fraud, or stealth, or in any clandestine manner; but accompanied with one or other of the following concomitant circumstances. the next method therefore of gaining a settlement, is, 4. by forty days residence, and notice. for if a stranger comes into a parish, and delivers notice in writing of his place of abode, and number of his family, to one of the overseers (which must be read in the church and registered) and resides there unmolested for forty days after such notice, he is legally settled thereby[t]. for the law presumes that such a one at the time of notice is not likely to become chargeable, else he would not venture to give it; or that, in such case, the parish would take care to remove him. but there are also other circumstances equivalent to such notice: therefore, 5. renting for a year a tenement of the yearly value of ten pounds, and residing forty days in the parish, gains a settlement without notice[u]; upon the principle of having substance enough to gain credit for such a house. 6. being charged to and paying the public taxes and levies of the parish; and, 7. executing any public parochial office for a whole year in the parish, as churchwarden, &c; are both of them equivalent to notice, and gain a settlement[w], when coupled with a residence of forty days. 8. being hired for a year, when unmarried, and serving a year in the same service; and 9. being bound an apprentice for seven years; give the servant and apprentice a settlement, without notice[x], in that place wherein they serve the last forty days. this is meant to encourage application to trades, and going out to reputable services. 10. lastly, the having an estate of one's own, and residing thereon forty days, however small the value may be, in case it be acquired by act of law or of a third person, as by descent, gift, devise, &c, is a sufficient settlement[y]: but if a man acquire it by his own act, as by purchase, (in it's popular sense, in consideration of money paid) then[z] unless the consideration advanced, _bona fide_, be 30_l._ it is no settlement for any longer time, than the person shall inhabit thereon. he is in no case removeable from his own property; but he shall not, by any trifling or fraudulent purchase of his own, acquire a permanent and lasting settlement. [footnote o: 1 lord raym. 567.] [footnote p: salk. 427.] [footnote q: salk. 528. 2 lord raym. 1473.] [footnote r: stra. 544.] [footnote s: foley. 249.] [footnote t: stat. 13 & 14 car. ii c. 12. 1 jac. ii. c. 17. 3 & 4 w. & m. c. 11.] [footnote u: stat. 13 & 14 car. ii. c. 12.] [footnote w: stat. 3 & 4 w. & m. c. 11.] [footnote x: stat. 3 & 4 w. & m. c. 11. 8 & 9 w. iii. c. 10. and 31 geo. ii. c. 11.] [footnote y: salk. 524.] [footnote z: stat. 9 geo. i. c. 7.] all persons, not so settled, may be removed to their own parishes, on complaint of the overseers, by two justices of the peace, if they shall adjudge them likely to become chargeable to the parish, into which they have intruded: unless they are in a way of getting a legal settlement, as by having hired a house of 10_l._ _per annum_, or living in an annual service; for then they are not removeable[a]. and in all other cases, if the parish to which they belong, will grant them a certificate, acknowleging them to be _their_ parishioners, they cannot be removed merely because _likely_ to become chargeable, but only when they become _actually_ chargeable[b]. but such certificated persons can gain no settlement by any of the means above-mentioned; unless by renting a tenement of 10_l._ _per annum_, or by serving an annual office in the parish, being legally placed therein: neither can an apprentice or servant to such certificated person gain a settlement by such their service[c]. [footnote a: salk. 472.] [footnote b: stat. 8 & 9 w. iii. c. 30.] [footnote c: stat. 12 ann. c. 18.] these are the general heads of the laws relating to the poor, which, by the resolutions of the courts of justice thereon within a century past, are branched into a great variety. and yet, notwithstanding the pains that has been taken about them, they still remain very imperfect, and inadequate to the purposes they are designed for: a fate, that has generally attended most of our statute laws, where they have not the foundation of the common law to build on. when the shires, the hundreds, and the tithings, were kept in the same admirable order that they were disposed in by the great alfred, there were no persons idle, consequently none but the impotent that needed relief: and the statute of 43 eliz. seems entirely founded on the same principle. but when this excellent scheme was neglected and departed from, we cannot but observe with concern, what miserable shifts and lame expedients have from time to time been adopted, in order to patch up the flaws occasioned by this neglect. there is not a more necessary or more certain maxim in the frame and constitution of society, than that every individual must contribute his share, in order to the well-being of the community: and surely they must be very deficient in sound policy, who suffer one half of a parish to continue idle, dissolute, and unemployed; and then form visionary schemes, and at length are amazed to find, that the industry of the other half is not able to maintain the whole. chapter the tenth. of the people, whether aliens, denizens, or natives. having, in the eight preceding chapters, treated of persons as they stand in the public relations of _magistrates_, i now proceed to consider such persons as fall under the denomination of the _people_. and herein all the inferior and subordinate magistrates, treated of in the last chapter, are included. the first and most obvious division of the people is into aliens and natural-born subjects. natural-born subjects are such as are born within the dominions of the crown of england, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. allegiance is the tie, or _ligamen_, which binds the subject to the king, in return for that protection which the king affords the subject. the thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our gothic ancestors. under the feodal system, every owner of lands held them in subjection to some superior or lord, from whom or whose ancestors the tenant or vasal had received them: and there was a mutual trust or confidence subsisting between the lord and vasal, that the lord should protect the vasal in the enjoyment of the territory he had granted him, and, on the other hand, that the vasal should be faithful to the lord and defend him against all his enemies. this obligation on the part of the vasal was called his _fidelitas_ or fealty; and an oath of fealty was required, by the feodal law, to be taken by all tenants to their landlord, which is couched in almost the same terms as our antient oath of allegiance[a]: except that in the usual oath of fealty there was frequently a saving or exception of the faith due to a superior lord by name, under whom the landlord himself was perhaps only a tenant or vasal. but when the acknowlegement was made to the absolute superior himself, who was vasal to no man, it was no longer called the oath of fealty, but the oath of allegiance; and therein the tenant swore to bear faith to his sovereign lord, in opposition to all men, without any saving or exception: "_contra omnes homines fidelitatem fecit_[b]." land held by this exalted species of fealty was called _feudum ligium_, a liege fee; the vasals _homines ligii_, or liege men; and the sovereign their _dominus ligius_, or liege lord. and when sovereign princes did homage to each other, for lands held under their respective sovereignties, a distinction was always made between _simple_ homage, which was only an acknowlegement of tenure[c]; and _liege_ homage, which included the fealty before-mentioned, and the services consequent upon it. thus when edward iii, in 1329, did homage to philip vi of france, for his ducal dominions on that continent, it was warmly disputed of what species the homage was to be, whether _liege_ or _simple_ homage[d]. with us in england, it becoming a settled principle of tenure, that _all_ lands in the kingdom are holden of the king as their sovereign and lord paramount, no oath but that of fealty could ever be taken to inferior lords, and the oath of allegiance was necessarily confined to the person of the king alone. by an easy analogy the term of allegiance was soon brought to signify all other engagements, which are due from subjects to their prince, as well as those duties which were simply and merely territorial. and the oath of allegiance, as administred for upwards of six hundred years[e], contained a promise "to be true and faithful to the king and his heirs, and truth and faith to bear of life and limb and terrene honour, and not to know or hear of any ill or damage intended him, without defending him therefrom." upon which sir matthew hale[f] makes this remark; that it was short and plain, not entangled with long or intricate clauses or declarations, and yet is comprehensive of the whole duty from the subject to his sovereign. but, at the revolution, the terms of this oath being thought perhaps to favour too much the notion of non-resistance, the present form was introduced by the convention parliament, which is more general and indeterminate than the former; the subject only promising "that he will be faithful and bear _true_ allegiance to the king," without mentioning "his heirs," or specifying in the least wherein that allegiance consists. the oath of supremacy is principally calculated as a renuntiation of the pope's pretended authority: and the oath of abjuration, introduced in the reign of king william[g], very amply supplies the loose and general texture of the oath of allegiance; it recognizing the right of his majesty, derived under the act of settlement; engaging to support him to the utmost of the juror's power; promising to disclose all traiterous conspiracies against him; and expressly renouncing any claim of the pretender, by name, in as clear and explicit terms as the english language can furnish. this oath must be taken by all persons in any office, trust, or employment; and may be tendered by two justices of the peace to any person, whom they shall suspect of disaffection[h]. but the oath of allegiance may be tendered[i] to all persons above the age of twelve years, whether natives, denizens, or aliens, either in the court-leet of the manor, or in the sheriff's tourn, which is the court-leet of the county. [footnote a: 2 _feud._ 5, 6, 7.] [footnote b: 2 _feud._ 99.] [footnote c: 7 rep. calvin's case. 7.] [footnote d: 2 carte. 401. mod. un. hist. xxiii. 420.] [footnote e: mirror. _c._ 3. â§. 35. fleta. 3. 16. britton. _c._ 29. 7 rep. calvin's case. 6.] [footnote f: 1 hal. p.c. 63.] [footnote g: stat. 13 w. iii. c. 6.] [footnote h: stat. 1 geo. i. c. 13.] [footnote i: 2 inst. 121. 1 hal. p.c. 64.] but, besides these express engagements, the law also holds that there is an implied, original, and virtual allegiance, owing from every subject to his sovereign, antecedently to any express promise; and although the subject never swore any faith or allegiance in form. for as the king, by the very descent of the crown, is fully invested with all the rights and bound to all the duties of sovereignty, before his coronation; so the subject is bound to his prince by an intrinsic allegiance, before the superinduction of those outward bonds of oath, homage, and fealty; which were only instituted to remind the subject of this his previous duty, and for the better securing it's performance[k]. the formal profession therefore, or oath of subjection, is nothing more than a declaration in words of what was before implied in law. which occasions sir edward coke very justly to observe[l], that "all subjects are equally bounden to their allegiance, as if they had taken the oath; because it is written by the finger of the law in their hearts, and the taking of the corporal oath is but an outward declaration of the same." the sanction of an oath, it is true, in case of violation of duty, makes the guilt still more accumulated, by superadding perjury to treason; but it does not encrease the civil obligation to loyalty; it only strengthens the _social_ tie by uniting it with that of _religion_. [footnote k: 1 hal. p.c. 61.] [footnote l: 2 inst. 121.] allegiance, both express and implied, is however distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. natural allegiance is such as is due from all men born within the king's dominions immediately upon their birth[m]. for, immediately upon their birth, they are under the king's protection; at a time too, when (during their infancy) they are incapable of protecting themselves. natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature[n]. an englishman who removes to france, or to china, owes the same allegiance to the king of england there as at home, and twenty years hence as well as now. for it is a principle of universal law[o], that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other; and cannot be devested without the concurrent act of that prince to whom it was first due. indeed the natural-born subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely to another; but it is his own act that brings him into these straits and difficulties, of owing service to two masters; and it is unreasonable that, by such voluntary act of his own, he should be able at pleasure to unloose those bands, by which he is connected to his natural prince. [footnote m: 7 rep. 7.] [footnote n: 2 p. wms. 124.] [footnote o: 1 hal. p.c. 68.] local allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the king's dominion and protection[p]: and it ceases, the instant such stranger transfers himself from this kingdom to another. natural allegiance is therefore perpetual, and local temporary only: and that for this reason, evidently founded upon the nature of government; that allegiance is a debt due from the subject, upon an implied contract with the prince, that so long as the one affords protection, so long the other will demean himself faithfully. as therefore the prince is always under a constant tie to protect his natural-born subjects, at all times and in all countries, for this reason their allegiance due to him is equally universal and permanent. but, on the other hand, as the prince affords his protection to an alien, only during his residence in this realm, the allegiance of an alien is confined (in point of time) to the duration of such his residence, and (in point of locality) to the dominions of the british empire. from which considerations sir matthew hale[q] deduces this consequence, that, though there be an usurper of the crown, yet it is treason for any subject, while the usurper is in full possession of the sovereignty, to practice any thing against his crown and dignity: wherefore, although the true prince regain the sovereignty, yet such attempts against the usurper (unless in defence or aid of the rightful king) have been afterwards punished with death; because of the breach of that temporary allegiance, which was due to him as king _de facto_. and upon this footing, after edward iv recovered the crown, which had been long detained from his house by the line of lancaster, treasons committed against henry vi were capitally punished, though henry had been declared an usurper by parliament. [footnote p: 7 rep. 6.] [footnote q: 1 hal. p.c. 60.] this oath of allegiance, or rather the allegiance itself, is held to be applicable not only to the political capacity of the king, or regal office, but to his natural person, and blood-royal: and for the misapplication of their allegiance, viz. to the regal capacity or crown, exclusive of the person of the king, were the spencers banished in the reign of edward ii[r]. and from hence arose that principle of personal attachment, and affectionate loyalty, which induced our forefathers (and, if occasion required, would doubtless induce their sons) to hazard all that was dear to them, life, fortune, and family, in defence and support of their liege lord and sovereign. [footnote r: 1 hal. p.c. 67.] this allegiance then, both express and implied, is the duty of all the king's subjects, under the distinctions here laid down, of local and temporary, or universal and perpetual. their rights are also distinguishable by the same criterions of time and locality; natural-born subjects having a great variety of rights, which they acquire by being born within the king's ligeance, and can never forfeit by any distance of place or time, but only by their own misbehaviour: the explanation of which rights is the principal subject of the two first books of these commentaries. the same is also in some degree the case of aliens; though their rights are much more circumscribed, being acquired only by residence here, and lost whenever they remove. i shall however here endeavour to chalk out some of the principal lines, whereby they are distinguished from natives, descending to farther particulars when they come in course. an alien born may purchase lands, or other estates: but not for his own use; for the king is thereupon entitled to them[s]. if an alien could acquire a permanent property in lands, he must owe an allegiance, equally permanent with that property, to the king of england; which would probably be inconsistent with that, which he owes to his own natural liege lord: besides that thereby the nation might in time be subject to foreign influence, and feel many other inconveniences. wherefore by the civil law such contracts were also made void[t]: but the prince had no such advantage of escheat thereby, as with us in england. among other reasons, which might be given for our constitution, it seems to be intended by way of punishment for the alien's presumption, in attempting to acquire any landed property: for the vendor is not affected by it, he having resigned his right, and received an equivalent in exchange. yet an alien may acquire a property in goods, money, and other personal estate, or may hire a house for his habitation[u]: for personal estate is of a transitory and moveable nature; and, besides, this indulgence to strangers is necessary for the advancement of trade. aliens also may trade as freely as other people; only they are subject to certain higher duties at the custom-house: and there are also some obsolete statutes of henry viii, prohibiting alien artificers to work for themselves in this kingdom; but it is generally held they were virtually repealed by statute 5 eliz. c. 7. also an alien may bring an action concerning personal property, and may make a will, and dispose of his personal estate[w]: not as it is in france, where the king at the death of an alien is entitled to all he is worth, by the _droit d'aubaine_ or _jus albinatus_[x], unless he has a peculiar exemption. when i mention these rights of an alien, i must be understood of alien-friends only, or such whose countries are in peace with ours; for alien-enemies have no rights, no privileges, unless by the king's special favour, during the time of war. [footnote s: co. litt. 2.] [footnote t: _cod._ _l._ 11. _tit._ 55.] [footnote u: 7 rep. 17.] [footnote w: lutw. 34.] [footnote x: the word is derived from _alibi natus_; spelm. gl. 24.] when i say, that an alien is one who is born out of the king's dominions, or allegiance, this also must be understood with some restrictions. the common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration[y], for the naturalization of children of his majesty's english subjects, born in foreign countries during the late troubles. and this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. yet the children of the king's embassadors born abroad were always held to be natural subjects[z]: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of _postliminium_) to be born under the king of england's allegiance, represented by his father, the embassador. to encourage also foreign commerce, it was enacted by statute 25 edw. iii. st. 2. that all children born abroad, provided _both_ their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband's consent, might inherit as if born in england: and accordingly it hath been so adjudged in behalf of merchants[a]. but by several more modern statutes[b] these restrictions are still farther taken off: so that all children, born out of the king's ligeance, whose _fathers_ were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with great britain. [footnote y: stat. 29 car. ii. c. 6.] [footnote z: 7 rep. 18.] [footnote a: cro. car. 601. mar. 91. jenk. cent. 3.] [footnote b: 7 ann. c. 5. and 4 geo. ii. c. 21.] the children of aliens, born here in england, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. in which the constitution of france differs from ours; for there, by their _jus albinatus_, if a child be born of foreign parents, it is an alien[c]. [footnote c: jenk. cent. 3. cites _treasure franã§ois_, 312.] a denizen is an alien born, but who has obtained _ex donatione regis_ letters patent to make him an english subject: a high and incommunicable branch of the royal prerogative[d]. a denizen is in a kind of middle state between an alien, and natural-born subject, and partakes of both of them. he may take lands by purchase or devise, which an alien may not; but cannot take by inheritance[e]: for his parent, through whom he must claim, being an alien had no inheritable blood, and therefore could convey none to the son. and, upon a like defect of hereditary blood, the issue of a denizen, born _before_ denization, cannot inherit to him; but his issue born _after_, may[f]. a denizen is not excused[g] from paying the alien's duty, and some other mercantile burthens. and no denizen can be of the privy council, or either house of parliament, or have any office of trust, civil or military, or be capable of any grant from the crown[h]. [footnote d: 7 rep. calvin's case. 25.] [footnote e: 11 rep. 67.] [footnote f: co. litt. 8. vaugh. 285.] [footnote g: stat. 22 hen. viii. c. 8.] [footnote h: stat. 12 w. iii. c. 2.] naturalization cannot be performed but by act of parliament: for by this an alien is put in exactly the same state as if he had been born in the king's ligeance; except only that he is incapable, as well as a denizen, of being a member of the privy council, or parliament, &c[i]. no bill for naturalization can be received in either house of parliament, without such disabling clause in it[k]. neither can any person be naturalized or restored in blood, unless he hath received the sacrament of the lord's supper within one month before the bringing in of the bill; and unless he also takes the oaths of allegiance and supremacy in the presence of the parliament[l]. [footnote i: _ibid._] [footnote k: stat. 1 geo. i. c. 4.] [footnote l: stat. 7 jac. i. c. 2.] these are the principal distinctions between aliens, denizens, and natives: distinctions, which endeavors have been frequently used since the commencement of this century to lay almost totally aside, by one general naturalization-act for all foreign protestants. an attempt which was once carried into execution by the statute 7 ann. c. 5. but this, after three years experience of it, was repealed by the statute 10 ann. c. 5. except one clause, which was just now mentioned, for naturalizing the children of english parents born abroad. however, every foreign seaman who in time of war serves two years on board an english ship is _ipso facto_ naturalized[m]; and all foreign protestants, and jews, upon their residing seven years in any of the american colonies, without being absent above two months at a time, are upon taking the oaths naturalized to all intents and purposes, as if they had been born in this kingdom[n]; and therefore are admissible to all such privileges, and no other, as protestants or jews born in this kingdom are entitled to. what those privileges are[o], was the subject of very high debates about the time of the famous jew-bill[p]; which enabled all jews to prefer bills of naturalization in parliament, without receiving the sacrament, as ordained by statute 7 jac. i. it is not my intention to revive this controversy again; for the act lived only a few months, and was then repealed[q]: therefore peace be now to it's _manes_. [footnote m: stat. 13 geo. ii. c. 3.] [footnote n: stat. 13 geo. ii. c. 7. 20 geo. ii. c. 24. 2 geo. iii. c. 25.] [footnote o: a pretty accurate account of the jews, till their banishment in 8 edw. i. may be found in molloy _de jure maritimo_, b. 3. c. 6.] [footnote p: stat. 26 geo. ii. c. 26.] [footnote q: stat. 27 geo. ii. c. 1.] chapter the eleventh. of the clergy. the people, whether aliens, denizens, or natural-born subjects, are divisible into two kinds; the clergy and laity: the clergy, comprehending all persons in holy orders, and in ecclesiastical offices, will be the subject of the following chapter. this venerable body of men, being separate and set apart from the rest of the people, in order to attend the more closely to the service of almighty god, have thereupon large privileges allowed them by our municipal laws: and had formerly much greater, which were abridged at the time of the reformation, on account of the ill use which the popish clergy had endeavoured to make of them. for, the laws having exempted them from almost every personal duty, they attempted a total exemption from every secular tie. but it is observed by sir edward coke[a], that, as the overflowing of waters doth many times make the river to lose it's proper chanel, so in times past ecclesiastical persons, seeking to extend their liberties beyond their true bounds, either lost or enjoyed not those which of right belonged to them. the personal exemptions do indeed for the most part continue. a clergyman cannot be compelled to serve on a jury, nor to appear at a court-leet or view of frank pledge; which almost every other person is obliged to do[b]: but, if a layman is summoned on a jury, and before the trial takes orders, he shall notwithstanding appear and be sworn[c]. neither can he be chosen to any temporal office; as bailiff, reeve, constable, or the like: in regard of his own continual attendance on the sacred function[d]. during his attendance on divine service he is privileged from arrests in civil suits[e]. in cases also of felony, a clerk in orders shall have the benefit of his clergy, without being branded in the hand; and may likewise have it more than once: in both which particulars he is distinguished from a layman[f]. but as they have their privileges, so also they have their disabilities, on account of their spiritual avocations. clergymen, we have seen[g], are incapable of sitting in the house of commons; and by statute 21 hen. viii. c. 13. are not allowed to take any lands or tenements to farm, upon pain of 10_l._ _per_ month, and total avoidance of the lease; nor shall engage in any manner of trade, nor sell any merchandize, under forfeiture of the treble value. which prohibition is consonant to the canon law. [footnote a: 2 inst. 4.] [footnote b: f.n.b. 160. 2 inst. 4.] [footnote c: 4 leon. 190.] [footnote d: finch. l. 88.] [footnote e: stat. 50 edw. iii. c. 5. 1 ric. ii. c. 16.] [footnote f: 2 inst. 637. stat. 4 hen. vii. c. 13. & 1 edw. vi. c. 12.] [footnote g: page 169.] in the frame and constitution of ecclesiastical polity there are divers ranks and degrees: which i shall consider in their respective order, merely as they are taken notice of by the secular laws of england; without intermeddling with the canons and constitutions, by which they have bound themselves. and under each division i shall consider, 1. the method of their appointment; 2. their rights and duties; and 3. the manner wherein their character or office may cease. i. an arch-bishop or bishop is elected by the chapter of his cathedral church, by virtue of a licence from the crown. election was, in very early times, the usual mode of elevation to the episcopal chair throughout all christendom; and this was promiscuously performed by the laity as well as the clergy[h]: till at length, it becoming tumultuous, the emperors and other sovereigns of the respective kingdoms of europe took the election in some degree into their own hands; by reserving to themselves the right of confirming these elections, and of granting investiture of the temporalties, which now began almost universally to be annexed to this spiritual dignity; without which confirmation and investiture, the elected bishop could neither be consecrated, nor receive any secular profits. this right was acknowleged in the emperor charlemagne, _a.d._ 773, by pope hadrian i, and the council of lateran[i], and universally exercised by other christian princes: but the policy of the court of rome at the same time began by degrees to exclude the laity from any share in these elections, and to confine them wholly to the clergy, which at length was completely effected; the mere form of election appearing to the people to be a thing of little consequence, while the crown was in possession of an absolute negative, which was almost equivalent to a direct right of nomination. hence the right of appointing to bishopricks is said to have been in the crown of england[k] (as well as other kingdoms in europe) even in the saxon times, because the rights of confirmation and investiture were in effect (though not in form) a right of complete donation[l]. but when, by length of time, the custom of making elections by the clergy only was fully established, the popes began to except to the usual method of granting these investitures, which was _per annulum et baculum_, by the prince's delivering to the prelate a ring, and a pastoral staff or crosier; pretending, that this was an encroachment on the church's authority, and an attempt by these symbols to confer a spiritual jurisdiction: and pope gregory vii, towards the close of the eleventh century, published a bulle of excommunication against all princes who should dare to confer investitures, and all prelates who should venture to receive them[m]. this was a bold step towards effecting the plan then adopted by the roman see, of rendering the clergy intirely independent of the civil authority: and long and eager were the contests occasioned by this dispute. but at length when the emperor henry v agreed to remove all suspicion of encroachment on the spiritual character, by conferring investitures for the future _per sceptrum_ and not _per annulum et baculum_; and when the kings of england and france consented also to alter the form in their kingdoms, and receive only homage from the bishops for their temporalties, instead of investing them by the ring and crosier; the court of rome found it prudent to suspend for a while it's other pretensions[n]. [footnote h: _per clerum et populum._ palm. 25. 2 roll. rep. 102. m. paris. _a.d._ 1095.] [footnote i: _decret._ 1. _dist._ 63. _c._ 22.] [footnote k: palm. 28.] [footnote l: "_nulla electio praelatorum (sunt verba ingulphi) erat mere libera et canonica; sed omnes dignitates tam episcoporum, quam abbatum, per annulum et baculum regis curia pro sua complacentia conferebat._" _penes clericos et monachos fuit electio, sed electum a rege postulabant._ selden. _jan. angl._ l. 1. â§. 39.] [footnote m: _decret._ 2. _caus._ 16. _qu._ 7. _c._ 12 & 13.] [footnote n: mod. un. hist. xxv. 363. xxix. 115.] this concession was obtained from king henry the first in england, by means of that obstinate and arrogant prelate, arch-bishop anselm[o]: but king john (about a century afterwards) in order to obtain the protection of the pope against his discontented barons, was prevailed upon to give up by a charter, to all the monasteries and cathedrals in the kingdom, the free right of electing their prelates, whether abbots or bishops: reserving only to the crown the custody of the temporalties during the vacancy; the form of granting a licence to elect, (which is the original of our _conge d'eslire_) on refusal whereof the electors might proceed without it; and the right of approbation afterwards, which was not to be denied without a reasonable and lawful cause[p]. this grant was expressly recognized and confirmed in king john's _magna carta_[q], and was again established by statute 25 edw. iii. st. 6. â§. 3. [footnote o: m. paris. _a.d._ 1107.] [footnote p: m. paris. _a.d._ 1214. 1 rym. _foed._ 198.] [footnote q: _cap._ 1. _edit. oxon._ 1759.] but by statute 25 hen. viii. c. 20. the antient right of nomination was, in effect, restored to the crown: it being enacted that, at every future avoidance of a bishoprick, the king may send the dean and chapter his usual licence to proceed to election; which is always to be accompanied with a letter missive from the king, containing the name of the person whom he would have them elect: and, if the dean and chapter delay their election above twelve days, the nomination shall devolve to the king, who may by letters patent appoint such person as he pleases. this election or nomination, if it be of a bishop, must be signified by the king's letters patent to the arch-bishop of the province; if it be of an arch-bishop, to the other arch-bishop and two bishops, or to four bishops; requiring them to confirm, invest, and consecrate the person so elected: which they are bound to perform immediately, without any application to the see of rome. after which the bishop elect shall sue to the king for his temporalties, shall make oath to the king and none other, and shall take restitution of his secular possessions out of the king's hands only. and if such dean and chapter do not elect in the manner by this act appointed, or if such arch-bishop or bishop do refuse to confirm, invest, and consecrate such bishop elect, they shall incur all the penalties of a _praemunire_. an arch-bishop is the chief of the clergy in a whole province; and has the inspection of the bishops of that province, as well as of the inferior clergy, and may deprive them on notorious cause[r]. the arch-bishop has also his own diocese, wherein he exercises episcopal jurisdiction; as in his province he exercises archiepiscopal. as arch-bishop, he, upon receipt of the king's writ, calls the bishops and clergy of his province to meet in convocation: but without the king's writ he cannot assemble them[s]. to him all appeals are made from inferior jurisdictions within his province; and, as an appeal lies from the bishops in person to him in person, so it also lies from the consistory courts of each diocese to his archiepiscopal court. during the vacancy of any see in his province, he is guardian of the spiritualties thereof, as the king is of the temporalties; and he executes all ecclesiastical jurisdiction therein. if an archiepiscopal see be vacant, the dean and chapter are the spiritual guardians, ever since the office of prior of canterbury was abolished at the reformation[t]. the arch-bishop is entitled to present by lapse to all the ecclesiastical livings in the disposal of his diocesan bishops, if not filled within six months. and the arch-bishop has a customary prerogative, when a bishop is consecrated by him, to name a clerk or chaplain of his own to be provided for by such suffragan bishop; in lieu of which it is now usual for the bishop to make over by deed to the arch-bishop, his executors and assigns, the next presentation of such dignity or benefice in the bishop's disposal within that see, as the arch-bishop himself shall choose; which is therefore called his option[u]: which options are only binding on the bishop himself who grants them, and not his successors. the prerogative itself seems to be derived from the legatine power formerly annexed by the popes to the metropolitan of canterbury[w]. and we may add, that the papal claim itself (like most others of that encroaching see) was probably set up in imitation of the imperial prerogative called _primae_ or _primariae preces_; whereby the emperor exercises, and hath immemorially exercised[x], a right of naming to the first prebend that becomes vacant after his accession in every church of the empire[y]. a right, that was also exercised by the crown of england in the reign of edward i[z]; and which probably gave rise to the royal corodies, which were mentioned in a former chapter[a]. it is also the privilege, by custom, of the arch-bishop of canterbury, to crown the kings and queens of this kingdom. and he hath also by the statute 25 hen. viii. c. 21. the power of granting dispensations in any case, not contrary to the holy scriptures and the law of god, where the pope used formerly to grant them: which is the foundation of his granting special licences, to marry at any place or time, to hold two livings, and the like: and on this also is founded the right he exercises of conferring degrees, in prejudice of the two universities[b]. [footnote r: lord raym. 541.] [footnote s: 4 inst. 322, 323.] [footnote t: 2 roll. abr. 223.] [footnote u: cowel's interpr. tit. option.] [footnote w: sherlock of options. 1.] [footnote x: goldast. _constit. imper._ _tom._ 3. _pag._ 406.] [footnote y: dufresne. v. 806. mod. un. hist. xxix. 5.] [footnote z: _rex, &c, salutem. scribatis episcopo karl. quod--roberto de icard pensionem suam, quam ad preces regis praedicto roberto concessit, de caetero solvat; et de proxima ecclesia vacatura de collatione praedicti episcopi, quam ipse robertus acceptaverit, respiciat._ _brev._ 11 edw. i. 3 pryn. 1264.] [footnote a: ch. 8. pag. 273.] [footnote b: see the bishop of chester's case. oxon. 1721.] the power and authority of a bishop, besides the administration of certain holy ordinances peculiar to that sacred order, consists principally in inspecting the manners of the people and clergy, and punishing them, in order to reformation, by ecclesiastical censures. to this purpose he has several courts under him, and may visit at pleasure every part of his diocese. his chancellor is appointed to hold his courts for him, and to assist him in matters of ecclesiastical law; who, as well as all other ecclesiastical officers, if lay or married, must be a doctor of the civil law, so created in some university[c]. it is also the business of a bishop to institute and to direct induction to all ecclesiastical livings in his diocese. [footnote c: stat. 37 hen. viii. c. 17.] archbishopricks and bishopricks may become void by death, deprivation for any very gross and notorious crime, and also by resignation. all resignations must be made to some superior[d]. therefore a bishop must resign to his metropolitan; but the arch-bishop can resign to none but the king himself. [footnote d: gibs. cod. 822.] ii. a dean and chapter are the council of the bishop, to assist him with their advice in affairs of religion, and also in the temporal concerns of his see[e]. when the rest of the clergy were settled in the several parishes of each diocese (as hath formerly[f] been mentioned) these were reserved for the celebration of divine service in the bishop's own cathedral; and the chief of them, who presided over the rest, obtained the name of _decanus_ or dean, being probably at first appointed to superintend _ten_ canons or prebendaries. [footnote e: 3 rep. 75. co. litt. 103, 300.] [footnote f: pag. 108, 109.] all antient deans are elected by the chapter, by _conge d'eslire_ from the king, and letters missive of recommendation; in the same manner as bishops: but in those chapters, that were founded by henry viii out of the spoils of the dissolved monasteries, the deanery is donative, and the installation merely by the king's letters patent[g]. the chapter, consisting of canons or prebendaries, are sometimes appointed by the king, sometimes by the bishop, and sometimes elected by each other. [footnote g: gibs. cod. 173.] the dean and chapter are, as was before observed, the nominal electors of a bishop. the bishop is their ordinary and immediate superior; and has, generally speaking, the power of visiting them, and correcting their excesses and enormities. they had also a check on the bishop at common law: for till the statute 32 hen. viii. c. 28. his grant or lease would not have bound his successors, unless confirmed by the dean and chapter[h]. [footnote h: co. litt. 103.] deaneries and prebends may become void, like a bishoprick, by death, by deprivation, or by resignation to either the king or the bishop[j]. also i may here mention, once for all, that if a dean, prebendary, or other spiritual person be made a bishop, all the preferments he was before possessed of are void; and the king may present to them in right of his prerogative royal. but they are not void by the election, but only by the consecration[i]. [footnote j: plowd. 498.] [footnote i: 2 roll. abr. 352. salk. 137. [transcriber's note: footnotes j and i are in this order in the original.]] iii. an arch-deacon hath an ecclesiastical jurisdiction, immediately subordinate to the bishop, throughout the whole of his diocese, or in some particular part of it. he is usually appointed by the bishop himself; and hath a kind of episcopal authority, originally derived from the bishop, but now independent and distinct from his[k]. he therefore visits the clergy; and has his separate court for punishment of offenders by spiritual censures, and for hearing all other causes of ecclesiastical cognizance. [footnote k: 1 burn. eccl. law. 68, 69.] iv. the rural deans are very antient officers of the church[l], but almost grown out of use; though their deaneries still subsist as an ecclesiastical division of the diocese, or archdeaconry. they seem to have been deputies of the bishop, planted all round his diocese, the better to inspect the conduct of the parochial clergy, and therefore armed with an inferior degree of judicial and coercive authority[m]. [footnote l: kennet. par. antiq. 633.] [footnote m: gibs. cod. 972.] v. the next, and indeed the most numerous order of men in the system of ecclesiastical polity, are the parsons and vicars of parishes: in treating of whom i shall first mark out the distinction between them; shall next observe the method by which one may become a parson or vicar; shall then briefly touch upon their rights and duties; and shall, lastly, shew how one may cease to be either. a parson, _persona ecclesiae_, is one that hath full possession of all the rights of a parochial church. he is called parson, _persona_, because by his person the church, which is an invisible body, is represented; and he is in himself a body corporate, in order to protect and defend the rights of the church (which he personates) by a perpetual succession[n]. he is sometimes called the rector, or governor, of the church: but the appellation of _parson_, (however it may be depreciated by familiar, clownish, and indiscriminate use) is the most legal, most beneficial, and most honourable title that a parish priest can enjoy; because such a one, (sir edward coke observes) and he only, is said _vicem seu personam ecclesiae gerere_. a parson has, during his life, the freehold in himself of the parsonage house, the glebe, the tithes, and other dues. but these are sometimes _appropriated_; that is to say, the benefice is perpetually annexed to some spiritual corporation, either sole or aggregate, being the patron of the living; whom the law esteems equally capable of providing for the service of the church, as any single private clergyman. this contrivance seems to have sprung from the policy of the monastic orders, who have never been deficient in subtle inventions for the increase of their own power and emoluments. at the first establishment of parochial clergy, the tithes of the parish were distributed in a fourfold division; one for the use of the bishop, another for maintaining the fabrick of the church, a third for the poor, and the fourth to provide for the incumbent. when the sees of the bishops became otherwise amply endowed, they were prohibited from demanding their usual share of these tithes, and the division was into three parts only. and hence it was inferred by the monasteries, that a small part was sufficient for the officiating priest, and that the remainder might well be applied to the use of their own fraternities, (the endowment of which was construed to be a work of the most exalted piety) subject to the burthen of repairing the church and providing for it's constant supply. and therefore they begged and bought, for masses and obits, and sometimes even for money, all the advowsons within their reach, and then appropriated the benefices to the use of their own corporation. but, in order to complete such appropriation effectually, the king's licence, and consent of the bishop, must first be obtained; because both the king and the bishop may sometime or other have an interest, by lapse, in the presentation to the benefice; which can never happen if it be appropriated to the use of a corporation, which never dies: and also because the law reposes a confidence in them, that they will not consent to any thing that shall be to the prejudice of the church. the consent of the patron also is necessarily implied, because (as was before observed) the appropriation can be originally made to none, but to such spiritual corporation, as is also the patron of the church; the whole being indeed nothing else, but an allowance for the patrons to retain the tithes and glebe in their own hands, without presenting any clerk, they themselves undertaking to provide for the service of the church[o]. when the appropriation is thus made, the appropriators and their successors are perpetual parsons of the church; and must sue and be sued, in all matters concerning the rights of the church, by the name of parsons[p]. [footnote n: co. litt. 300.] [footnote o: plowd. 496-500.] [footnote p: hob. 307.] this appropriation may be severed, and the church become disappropriate, two ways: as, first, if the patron or appropriator presents a clerk, who is instituted and inducted to the parsonage: for the incumbent so instituted and inducted is to all intents and purposes complete parson; and the appropriation, being once severed, can never be re-united again, unless by a repetition of the same solemnities[q]. and when the clerk so presented is distinct from the vicar, the rectory thus vested in him becomes what is called a _sine-cure_; because he hath no cure of souls, having a vicar under him to whom that cure is committed[r]. also, if the corporation which has the appropriation is dissolved, the parsonage becomes disappropriate at common law; because the perpetuity of person is gone, which is necessary to support the appropriation. [footnote q: co. litt. 46.] [footnote r: sine-cures might also be created by other means. 2 burn. eccl. law. 347.] in this manner, and subject to these conditions, may appropriations be made at this day: and thus were most, if not all, of the appropriations at present existing originally made; being annexed to bishopricks, prebends, religious houses, nay, even to nunneries, and certain military orders, all of which were spiritual corporations. at the dissolution of monasteries by statutes 27 hen. viii. c. 28. and 31 hen. viii. c. 13. the appropriations of the several parsonages, which belonged to those respective religious houses, (amounting to more than one third of all the parishes in england[s]) would have been by the rules of the common law disappropriated; had not a clause in those statutes intervened, to give them to the king in as ample a manner as the abbots, &c, formerly held the same, at the time of their dissolution. this, though perhaps scarcely defensible, was not without example; for the same was done in former reigns, when the alien priories, (that is, such as were filled by foreigners only) were dissolved and given to the crown[t]. and from these two roots have sprung all the lay appropriations or secular parsonages, which we now see in the kingdom; they having been afterwards granted out from time to time by the crown[u]. [footnote s: seld. review of tith. c. 9. spelm. apology. 35.] [footnote t: 2 inst. 584.] [footnote u: sir h. spelman (of tythes, c. 29.) says these are now called impropriations, as being _improperly_ in the hands of laymen.] these appropriating corporations, or religious houses, were wont to depute one of their own body to perform divine service, and administer the sacraments, in those parishes of which the society was thus the parson. this officiating minister was in reality no more than a curate, deputy, or vicegerent of the appropriator, and therefore called _vicarius_, or _vicar_. his stipend was at the discretion of the appropriator, who was however bound of common right to find somebody, _qui illi de temporalibus, episcopo de spiritualibus, debeat respondere_[w]. but this was done in so scandalous a manner, and the parishes suffered so much by the neglect of the appropriators, that the legislature was forced to interpose: and accordingly it is enacted by statute 15 ric. ii. c. 6. that in all appropriations of churches, the diocesan bishop shall ordain (in proportion to the value of the church) a competent sum to be distributed among the poor parishioners annually; and that the vicarage shall be _sufficiently_ endowed. it seems the parish were frequently sufferers, not only by the want of divine service, but also by withholding those alms, for which, among other purposes, the payment of tithes was originally imposed: and therefore in this act a pension is directed to be distributed among the poor parochians, as well as a sufficient stipend to the vicar. but he, being liable to be removed at the pleasure of the appropriator, was not likely to insist too rigidly on the legal sufficiency of the stipend: and therefore by statute 4 hen. iv. c. 12. it is ordained, that the vicar shall be a secular person, not a member of any religious house; that he shall be vicar perpetual, not removeable at the caprice of the monastery; and that he shall be canonically instituted and inducted, and be sufficiently endowed, at the discretion of the ordinary, for these three express purposes, to do divine service, to inform the people, and to keep hospitality. the endowments in consequence of these statutes have usually been by a portion of the glebe, or land, belonging to the parsonage, and a particular share of the tithes, which the appropriators found it most troublesome to collect, and which are therefore generally called privy, small, or vicarial, tithes; the greater, or predial, tithes being still referred to their own use. but one and the same rule was not observed in the endowment of all vicarages. hence some are more liberally, and some more scantily, endowed; and hence many things, as wood in particular, is in some countries a predial, and in some a vicarial tithe. [footnote w: seld. tith. c. 11. 1.] the distinction therefore of a parson and vicar is this; that the parson has for the most part the whole right to all the ecclesiastical dues in his parish; but a vicar has generally an appropriator over him, entitled to the best part of the profits, to whom he is in effect perpetual curate, with a standing salary. though in some places the vicarage has been considerably augmented by a large share of the great tithes; which augmentations were greatly assisted by the statute 29 car. ii. c. 8. enacted in favour of poor vicars and curates, which rendered such temporary augmentations (when made by the appropriators) perpetual. the method of becoming a parson or vicar is much the same. to both there are four requisites necessary: holy orders; presentation; institution; and induction. the method of conferring the holy orders of deacon and priest, according to the liturgy and canons[x], is foreign to the purpose of these commentaries; any farther than as they are necessary requisites to make a complete parson or vicar. by common law a deacon, of any age, might be instituted and inducted to a parsonage or vicarage: but it was ordained by statute 13 eliz. c. 12. that no person under twenty three years of age, and in deacon's orders, should be presented to any benefice with cure; and if he were not ordained priest within one year after his induction, he should be _ipso facto_ deprived: and now, by statute 13 & 14 car. ii. c. 4. no person is capable to be admitted to any benefice, unless he hath been first ordained a priest; and then he is, in the language of the law, a clerk in orders. but if he obtains orders, or a licence to preach, by money or corrupt practices (which seems to be the true, though not the common notion of simony) the person giving such orders forfeits[y] 40_l._ and the person receiving 10_l._ and is incapable of any ecclesiastical preferment for seven years afterwards. [footnote x: see 2 burn. eccl. law. 103.] [footnote y: stat. 31 eliz. c. 6.] any clerk may be presented[z] to a parsonage or vicarage; that is, the patron, to whom the advowson of the church belongs, may offer his clerk to the bishop of the diocese to be instituted. of advowsons, or the right of presentation, being a species of private property, we shall find a more convenient place to treat in the second part of these commentaries. but when a clerk is presented, the bishop may refuse him upon many accounts. as, 1. if the patron is excommunicated, and remains in contempt forty days[a]. or, 2. if the clerk be unfit[b]: which unfitness is of several kinds. first, with regard to his person; as if he be a bastard, an outlaw, an excommunicate, an alien, under age, or the like[c]. next, with regard to his faith or morals; as for any particular heresy, or vice that is _malum in se_: but if the bishop alleges only in generals, as that he is _schismaticus inveteratus_, or objects a fault that is _malum prohibitum_ merely, as haunting taverns, playing at unlawful games, or the like; it is not good cause of refusal[d]. or, lastly, the clerk may be unfit to discharge the pastoral office for want of learning. in any of which cases the bishop may refuse the clerk. in case the refusal is for heresy, schism, inability of learning, or other matter of ecclesiastical cognizance, there the bishop must give notice to the patron of such his cause of refusal, who, being usually a layman, is not supposed to have knowlege of it; else he cannot present by lapse: but if the cause be temporal, there he is not bound to give notice[e]. [footnote z: a layman may also be presented; but he must take priests orders before his admission. 1 burn. 103.] [footnote a: 2 roll. abr. 355.] [footnote b: glanv. _l._ 13. _c._ 20.] [footnote c: 2 roll. abr. 356. 2 inst. 632. stat. 3 ric. ii. c. 3. 7 ric. ii. c. 12.] [footnote d: 5 rep. 58.] [footnote e: 2 inst. 632.] if an action at law be brought by the patron against the bishop, for refusing his clerk, the bishop must assign the cause. if the cause be of a temporal nature and the fact admitted, (as, for instance, outlawry) the judges of the king's courts must determine it's validity, or, whether it be sufficient cause of refusal: but if the fact be denied, it must be determined by a jury. if the cause be of a spiritual nature, (as, heresy, particularly alleged) the fact if denied shall also be determined by a jury; and if the fact be admitted or found, the court upon consultation and advice of learned divines shall decide it's sufficiency[f]. if the cause be want of learning, the bishop need not specify in what points the clerk is deficient, but only allege that he _is_ deficient[g]: for the statute 9 edw. ii. st. 1. c. 13. is express, that the examination of the fitness of a person presented to a benefice belongs to the ecclesiastical judge. but because it would be nugatory in this case to demand the reason of refusal from the ordinary, if the patron were bound to abide by his determination, who has already pronounced his clerk unfit; therefore if the bishop returns the clerk to be _minus sufficiens in literatura_, the court shall write to the metropolitan, to reexamine him, and certify his qualifications; which certificate of the arch-bishop is final[h]. [footnote f: 2 inst. 632.] [footnote g: 5 rep. 58. 3 lev. 313.] [footnote h: 2 inst. 632.] if the bishop hath no objections, but admits the patron's presentation, the clerk so admitted is next to be instituted by him; which is a kind of investiture of the spiritual part of the benefice: for by institution the care of the souls of the parish is committed to the charge of the clerk. when a vicar is instituted, he (besides the usual forms) takes, if required by the bishop, an oath of perpetual residence; for the maxim of law is, that _vicarius non habet vicarium_: and as the non-residence of the appropriators was the cause of the perpetual establishment of vicarages, the law judges it very improper for them to defeat the end of their constitution, and by absence to create the very mischiefs which they were appointed to remedy: especially as, if any profits are to arise from putting in a curate and living at a distance from the parish, the appropriator, who is the real parson, has undoubtedly the elder title to them. when the ordinary is also the patron, and _confers_ the living, the presentation and institution are one and the same act, and are called a collation to a benefice. by institution or collation the church is full, so that there can be no fresh presentation till another vacancy, at least in the case of a common patron; but the church is not full against the king, till induction: nay, even if a clerk is instituted upon the king's presentation, the crown may revoke it before induction, and present another clerk[i]. upon institution also the clerk may enter on the parsonage house and glebe, and take the tithes; but he cannot grant or let them, or bring any action for them, till induction. [footnote i: co. litt. 344.] induction is performed by a mandate from the bishop to the arch-deacon, who usually issues out a precept to other clergymen to perform it for him. it is done by giving the clerk corporal possession of the church, as by holding the ring of the door, tolling a bell, or the like; and is a form required by law, with intent to give all the parishioners due notice, and sufficient certainty of their new minister, to whom their tithes are to be paid. this therefore is the investiture of the temporal part of the benefice, as institution is of the spiritual. and when a clerk is thus presented, instituted, and inducted into a rectory, he is then, and not before, in full and complete possession, and is called in law _persona impersonata_, or parson imparsonee[k]. [footnote k: co. litt. 300.] the rights of a parson or vicar, in his tithes and ecclesiastical dues, fall more properly under the second book of these commentaries: and as to his duties, they are principally of ecclesiastical cognizance; those only excepted which are laid upon him by statute. and those are indeed so numerous that it is impracticable to recite them here with any tolerable conciseness or accuracy. some of them we may remark, as they arise in the progress of our enquiries, but for the rest i must refer myself to such authors as have compiled treatises expressly upon this subject[l]. i shall only just mention the article of residence, upon the supposition of which the law doth stile every parochial minister an incumbent. by statute 21 hen. viii. c. 13. persons wilfully absenting themselves from their benefices, for one month together, or two months in the year, incur a penalty of 5_l._ to the king, and 5_l._ to any person that will sue for the same: except chaplains to the king, or others therein mentioned[m], during their attendance in the houshold of such as retain them: and also except[n] all heads of houses, magistrates, and professors in the universities, and all students under forty years of age residing there, _bona fide_, for study. legal residence is not only in the parish, but also in the parsonage house: for it hath been resolved[o], that the statute intended residence, not only for serving the cure, and for hospitality; but also for maintaining the house, that the successor also may keep hospitality there. [footnote l: these are very numerous: but there are only two, which can be relied on with any degree of certainty; bishop gibson's _codex_, and dr burn's ecclesiastical law.] [footnote m: stat. 25 hen. viii. c. 16. 33 hen. viii. c. 28.] [footnote n: stat. 28 hen. viii. c. 13.] [footnote o: 6 rep. 21.] we have seen that there is but one way, whereby one may become a parson or vicar: there are many ways, by which one may cease to be so. 1. by death. 2. by cession, in taking another benefice. for by statute 21 hen. viii. c. 13. if any one having a benefice of 8_l._ _per annum_, or upwards, in the king's books, (according to the present valuation[p],) accepts any other, the first shall be adjudged void; unless he obtains a dispensation; which no one is entitled to have, but the chaplains of the king and others therein mentioned, the brethren and sons of lords and knights, and doctors and bachelors of divinity and law, _admitted by the universities_ of this realm. and a vacancy thus made, for want of a dispensation, is called cession. 3. by consecration; for, as was mentioned before, when a clerk is promoted to a bishoprick, all his other preferments are void the instant that he is consecrated. but there is a method, by the favour of the crown, of holding such livings _in commendam_. _commenda_, or _ecclesia commendata_, is a living commended by the crown to the care of a clerk, to hold till a proper pastor is provided for it. this may be temporary, for one, two, or three years, or perpetual; being a kind of dispensation to avoid the vacancy of the living, and is called a _commenda retinere_. there is also a _commenda recipere_, which is to take a benefice _de novo_, in the bishop's own gift, or the gift of some other patron consenting to the same; and this is the same to him as institution and induction are to another clerk[q]. 4. by resignation. but this is of no avail, till accepted by the ordinary; into whose hands the resignation must be made[r]. 5. by deprivation, either by canonical censures, of which i am not to speak; or in pursuance of divers penal statutes, which declare the benefice void, for some nonfeasance or neglect, or else some malefeasance or crime. as, for simony[s]; for maintaining any doctrine in derogation of the king's supremacy, or of the thirty nine articles, or of the book of common-prayer[t]; for neglecting after institution to read the articles in the church, or make the declarations against popery, or take the abjuration oath[u]; for using any other form of prayer than the liturgy of the church of england[w]; or for absenting himself sixty days in one year from a benefice belonging to a popish patron, to which the clerk was presented by either of the universities[x]; in all which and similar cases[y] the benefice is _ipso facto_ void, without any formal sentence of deprivation. [footnote p: cro. car. 456.] [footnote q: hob. 144.] [footnote r: cro. jac. 198.] [footnote s: stat. 31 eliz. c. 6. and 12 ann. c. 12.] [footnote t: stat. 1 eliz. c. 1 & 2. and 13 eliz. c. 12.] [footnote u: stat. 13 eliz. c. 12. 14 car. ii. c. 4. and 1 geo. i. c. 6.] [footnote w: stat. 1 eliz. c. 2.] [footnote x: stat. 1 w. & m. c. 26.] [footnote y: 6 rep. 29, 30.] vi. a curate is the lowest degree in the church; being in the same state that a vicar was formerly, an officiating temporary minister, instead of the real incumbent. though there are what are called _perpetual_ curacies, where all the tithes are appropriated, and no vicarage endowed, (being for some particular reasons[z] exempted from the statute of hen. iv) but, instead thereof, such perpetual curate is appointed by the appropriator. with regard to the other species of curates, they are the objects of some particular statutes, which ordain, that such as serve a church during it's vacancy shall be paid such stipend as the ordinary thinks reasonable, out of the profits of the vacancy; or, if that be not sufficient, by the successor within fourteen days after he takes possession[a]: and that, if any rector or vicar nominates a curate to the ordinary to be licenced, the ordinary shall settle his stipend under his hand and seal, not exceeding 50_l._ _per annum_, nor less than 20_l._ and on failure of payment may sequester the profits of the benefice[b]. [footnote z: 1 burn. eccl. law. 427.] [footnote a: stat. 28 hen. viii. c. 11.] [footnote b: stat. 12 ann. st. 2. c. 12.] thus much of the clergy, properly so called. there are also certain inferior ecclesiastical officers of whom the common law takes notice; and that, principally, to assist the ecclesiastical jurisdiction, where it is deficient in powers. on which officers i shall make a few cursory remarks. vii. churchwardens are the guardians or keepers of the church, and representatives of the body of the parish[c]. they are sometimes appointed by the minister, sometimes by the parish, sometimes by both together, as custom directs. they are taken, in favour of the church, to be for some purposes a kind of corporation at the common law; that is, they are enabled by that name to have a property in goods and chattels, and to bring actions for them, for the use and profit of the parish. yet they may not waste the church goods, but may be removed by the parish, and then called to account by action at the common law: but there is no method of calling them to account, but by first removing them; for none can legally do it, but those who are put in their place. as to lands, or other real property, as the church, church-yard, &c, they have no sort of interest therein; but if any damage is done thereto, the parson only or vicar shall have the action. their office also is to repair the church, and make rates and levies for that purpose: but these are recoverable only in the ecclesiastical court. they are also joined with the overseers in the care and maintenance of the poor. they are to levy[d] a shilling forfeiture on all such as do not repair to church on sundays and holidays, and are empowered to keep all persons orderly while there; to which end it has been held that a churchwarden may justify the pulling off a man's hat, without being guilty of either an assault or trespass[e]. there are also a multitude of other petty parochial powers committed to their charge by divers acts of parliament[f]. [footnote c: in sweden they have similar officers, whom they call _kiorckiowariandes_. stiernhook. l. 3. c. 7.] [footnote d: stat. 1 eliz. c. 2.] [footnote e: 1 lev. 196.] [footnote f: see lambard of churchwardens, at the end of his _eirenarcha_; and dr burn, tit. _church, churchwardens, visitation_.] viii. parish clerks and sextons are also regarded by the common law, as persons who have freeholds in their offices; and therefore though they may be punished, yet they cannot be deprived, by ecclesiastical censures[g]. the parish clerk was formerly always in holy orders; and some are so to this day. he is generally appointed by the incumbent, but by custom may be chosen by the inhabitants; and if such custom appears, the court of king's bench will grant a _mandamus_ to the arch-deacon to swear him in, for the establishment of the custom turns it into a temporal or civil right[h]. [footnote g: 2 roll. abr. 234.] [footnote h: cro. car. 589.] chapter the twelfth. of the civil state. the lay part of his majesty's subjects, or such of the people as are not comprehended under the denomination of clergy, may be divided into three distinct states, the civil, the military, and the maritime. that part of the nation which falls under our first and most comprehensive division, the civil state, includes all orders of men, from the highest nobleman to the meanest peasant; that are not included under either our former division, of clergy, or under one of the two latter, the military and maritime states: and it may sometimes include individuals of the other three orders; since a nobleman, a knight, a gentleman, or a peasant, may become either a divine, a soldier, or a seaman. the civil state consists of the nobility and the commonalty. of the nobility, the peerage of great britain, or lords temporal, as forming (together with the bishops) one of the supreme branches of the legislature, i have before sufficiently spoken: we are here to consider them according to their several degrees, or titles of honour. all degrees of nobility and honour are derived from the king as their fountain[a]: and he may institute what new titles he pleases. hence it is that all degrees of honour are not of equal antiquity. those now in use are dukes, marquesses, earls, viscounts, and barons[b]. [footnote a: 4 inst. 363.] [footnote b: for the original of these titles on the continent of europe, and their subsequent introduction into this island, see mr selden's _titles of honour_.] 1. a _duke_, though it be with us, as a mere title of nobility, inferior in point of antiquity to many others, yet it is superior to all of them in rank; being the first title of dignity after the royal family[c]. among the saxons the latin name of dukes, _duces_, is very frequent, and signified, as among the romans, the commanders or leaders of their armies, whom in their own language they called [anglo-saxon: heretoga][d]; and in the laws of henry i (as translated by lambard) we find them called _heretochii_. but after the norman conquest, which changed the military polity of the nation, the kings themselves continuing for many generations _dukes_ of normandy, they would not honour any subjects with that title, till the time of edward iii; who, claiming to be king of france, and thereby losing the ducal in the royal dignity, in the eleventh year of his reign created his son, edward the black prince, duke of cornwall: and many, of the royal family especially, were afterwards raised to the same honour. however, in the reign of queen elizabeth, _a.d._ 1572[e], the whole order became utterly extinct: but it was revived about fifty years afterwards by her successor, who was remarkably prodigal of honours, in the person of george villiers duke of buckingham. [footnote c: camden. britan. _tit. ordines_.] [footnote d: this is apparently derived from the same root as the german [fraktur: hertzogen], the antient appellation of dukes in that country. seld. tit. hon. 2. 1. 22.] [footnote e: camden. britan. _tit. ordines_. spelman. _gloss._ 191.] 2. a _marquess_, _marchio_, is the next degree of nobility. his office formerly was (for dignity and duty were never separated by our ancestors) to guard the frontiers and limits of the kingdom; which were called the marches, from the teutonic word, _marche_, a limit: as, in particular, were the marches of wales and scotland, while they continued to be enemies countries. the persons who had command there, were called lords marchers, or marquesses; whose authority was abolished by statute 27 hen. viii. c. 27: though the title had long before been made a mere ensign of honour; robert vere, earl of oxford, being created marquess of dublin, by richard ii in the eighth year of his reign[f]. [footnote f: 2 inst. 5.] 3. an _earl_ is a title of nobility so antient, that it's original cannot clearly be traced out. thus much seems tolerably certain: that among the saxons they were called _ealdormen_, _quasi_ elder men, signifying the same as _senior_ or _senator_ among the romans; and also _schiremen_, because they had each of them the civil government of a several division or shire. on the irruption of the danes, they changed the name to _eorles_, which, according to camden[g], signified the same in their language. in latin they are called _comites_ (a title first used in the empire) from being the king's attendants; "_a societate nomen sumpserunt, reges enim tales sibi associant_[h]." after the norman conquest they were for some time called _counts_, or _countees_, from the french; but they did not long retain that name themselves, though their shires are from thence called counties to this day. it is now become a mere title, they having nothing to do with the government of the county; which, as has been more than once observed, is now entirely devolved on the sheriff, the earl's deputy, or _vice-comes_. in all writs, and commissions, and other formal instruments, the king, when he mentions any peer of the degree of an earl, always stiles him "trusty and well beloved _cousin_:" an appellation as antient as the reign of henry iv; who being either by his wife, his mother, or his sisters, actually related or allied to every earl in the kingdom, artfully and constantly acknowleged that connexion in all his letters and other public acts; from whence the usage has descended to his successors, though the reason has long ago failed. [footnote g: _ibid._] [footnote h: bracton. _l._ 1. _c._ 8. fleta. _l._ i. _c._ 5.] 4. the name of _vice-comes_ or _viscount_ was afterwards made use of as an arbitrary title of honour, without any shadow of office pertaining to it, by henry the sixth; when in the eighteenth year of his reign, he created john beaumont a peer, by the name of viscount beaumont, which was the first instance of the kind[i]. [footnote i: 2 inst. 5.] 5. a _baron_'s is the most general and universal title of nobility; for originally every one of the peers of superior rank had also a barony annexed to his other titles[k]. but it hath sometimes happened that, when an antient baron hath been raised to a new degree of peerage, in the course of a few generations the two titles have descended differently; one perhaps to the male descendants, the other to the heirs general; whereby the earldom or other superior title hath subsisted without a barony: and there are also modern instances where earls and viscounts have been created without annexing a barony to their other honours: so that now the rule does not hold universally, that all peers are barons. the original and antiquity of baronies has occasioned great enquiries among our english antiquarians. the most probable opinion seems to be, that they were the same with our present lords of manors; to which the name of court baron, (which is the lord's court, and incident to every manor) gives some countenance. it may be collected from king john's _magna carta_[l], that originally all lords of manors, or barons, that held of the king _in capite_, had seats in the great council or parliament, till about the reign of that prince the conflux of them became so large and troublesome, that the king was obliged to divide them, and summon only the greater barons in person; leaving the small ones to be summoned by the sheriff, and (as it is said) to sit by representation in another house; which gave rise to the separation of the two houses of parliament[m]. by degrees the title came to be confined to the greater barons, or lords of parliament only; and there were no other barons among the peerage but such as were summoned by writ, in respect of the tenure of their lands or baronies, till richard the second first made it a mere title of honor, by conferring it on divers persons by his letters patent[n]. [footnote k: 2 inst. 5, 6.] [footnote l: _cap._ 14.] [footnote m: gilb. hist. exch. c. 3. seld. tit. of hon. 2. 5. 21.] [footnote n: 1 inst. 9. seld. _jan. angl._ 2. â§. 66.] having made this short enquiry into the original of our several degrees of nobility, i shall next consider the manner in which they may be created. the right of peerage seems to have been originally territorial; that is, annexed to lands, honors, castles, manors, and the like, the proprietors and possessors of which were (in right of those estates) allowed to be peers of the realm, and were summoned to parliament to do suit and service to their sovereign: and, when the land was alienated, the dignity passed with it as appendant. thus the bishops still sit in the house of lords in right of succession to certain antient baronies annexed, or supposed to be annexed, to their episcopal lands[o]: and thus, in 11 hen. vi, the possession of the castle of arundel was adjudged to confer an earldom on it's possessor[p]. but afterwards, when alienations grew to be frequent, the dignity of peerage was confined to the lineage of the party ennobled, and instead of territorial became personal. actual proof of a tenure by barony became no longer necessary to constitute a lord of parliament; but the record of the writ of summons to them or their ancestors was admitted as a sufficient evidence of the tenure. [footnote o: glanv. _l._ 7. _c._ 1.] [footnote p: seld. tit. of hon. b. 2. c. 9. â§. 5.] peers are now created either by writ, or by patent: for those who claim by prescription must suppose either a writ or patent made to their ancestors; though by length of time it is lost. the creation by writ, or the king's letter, is a summons to attend the house of peers, by the stile and title of that barony, which the king is pleased to confer: that by patent is a royal grant to a subject of any dignity and degree of peerage. the creation by writ is the more antient way; but a man is not ennobled thereby, unless he actually takes his seat in the house of lords: and therefore the most usual, because the surest, way is to grant the dignity by patent, which enures to a man and his heirs according to the limitations thereof, though he never himself makes use of it[q]. yet it is frequent to call up the eldest son of a peer to the house of lords by writ of summons, in the name of his father's barony: because in that case there is no danger of his children's losing the nobility in case he never takes his seat; for they will succeed to their grand-father. creation by writ has also one advantage over that by patent: for a person created by writ holds the dignity to him _and his heirs_, without any words to that purport in the writ; but in letters patent there must be words to direct the inheritance, else the dignity enures only to the grantee for life[r]. for a man or woman may be created noble for their own lives, and the dignity not descend to their heirs at all, or descend only to some particular heirs: as where a peerage is limited to a man, and the heirs male of his body by elizabeth his present lady, and not to such heirs by any former or future wife. [footnote q: co. litt. 16.] [footnote r: co. litt. 9. 16.] let us next take a view of a few of the principal incidents attending the nobility, exclusive of their capacity as members of parliament, and as hereditary counsellors of the crown; both of which we have before considered. and first we must observe, that in criminal cases, a nobleman shall be tried by his peers. the great are always obnoxious to popular envy: were they to be judged by the people, they might be in danger from the prejudice of their judges; and would moreover be deprived of the privilege of the meanest subjects, that of being tried by their equals, which is secured to all the realm by _magna carta_, c. 29. it is said, that this does not extend to bishops; who, though they are lords of parliament, and sit there by virtue of their baronies which they hold _jure ecclesiae_, yet are not ennobled in blood, and consequently not peers with the nobility[s]. as to peeresses, no provision was made for their trial when accused of treason or felony, till after eleanor dutchess of gloucester, wife to the lord protector, had been accused of treason and found guilty of witchcraft, in an ecclesiastical synod, through the intrigues of cardinal beaufort. this very extraordinary trial gave occasion to a special statute, 20 hen. vi. c. 9. which enacts that peeresses either in their own right, or by marriage, shall be tried before the same judicature as peers of the realm. if a woman, noble in her own right, marries a commoner, she still remains noble, and shall be tried by her peers: but if she be only noble by marriage, then by a second marriage, with a commoner, she loses her dignity; for as by marriage it is gained, by marriage it is also lost. yet if a duchess dowager marries a baron, she continues a duchess still; for all the nobility are _pares_, and therefore it is no degradation[t]. a peer, or peeress (either in her own right or by marriage) cannot be arrested in civil cases[u]: and they have also many peculiar privileges annexed to their peerage in the course of judicial proceedings. a peer, sitting in judgment, gives not his verdict upon oath, like an ordinary juryman, but upon his honour[w]: he answers also to bills in chancery upon his honour, and not upon his oath[x]; but, when he is examined as a witness either in civil or criminal cases, he must be sworn[y]: for the respect, which the law shews to the honour of a peer, does not extend so far as to overturn a settled maxim, that _in judicio non creditur nisi juratis_[z]. the honour of peers is however so highly tendered by the law, that it is much more penal to spread false reports of them, and certain other great officers of the realm, than of other men: scandal against them being called by the peculiar name of _scandalum magnatum_; and subjected to peculiar punishment by divers antient statutes[a]. [footnote s: 3 inst. 30, 31.] [footnote t: 2 inst. 50.] [footnote u: finch. l. 355. 1 ventr. 298.] [footnote w: 2 inst 49.] [footnote x: 1 p. wms. 146.] [footnote y: salk. 512.] [footnote z: cro. car. 64.] [footnote a: 3 edw. i. c. 34. 2 ric. ii. st. 1. c. 5. 12 ric. ii. c. 11.] a peer cannot lose his nobility, but by death or attainder; hough [transcriber's note: though] there was an instance, in the reign of edward the fourth, of the degradation of george nevile duke of bedford by act of parliament[b], on account of his poverty, which rendered him unable to support his dignity[c]. but this is a singular instance: which serves at the same time, by having happened, to shew the power of parliament; and, by having happened but once, to shew how tender the parliament hath been, in exerting so high a power. it hath been said indeed[d], that if a baron waste his estate, so that he is not able to support the degree, the _king_ may degrade him: but it is expressly held by later authorities[e], that a peer cannot be degraded but by act of _parliament_. [footnote b: 4 inst. 355.] [footnote c: the preamble to the act is remarkable: "forasmuch as oftentimes it is seen, that when any lord is called to high estate, and hath not convenient livelyhood to support the same dignity, it induceth great poverty and indigence, and causeth oftentimes great extortion, embracery, and maintenance to be had; to the great trouble of all such countries where such estate shall happen to be: therefore, &c."] [footnote d: by lord chancellor ellesmere. moor. 678.] [footnote e: 12 rep. 107. 12 mod. 56.] the commonalty, like the nobility, are divided into several degrees; and, as the lords, though different in rank, yet all of them are peers in respect of their nobility, so the commoners, though some are greatly superior to others, yet all are in law peers, in respect of their want of nobility[f]. [footnote f: 2 inst. 29.] the first name of dignity, next beneath a peer, was anciently that of _vidames_, _vice domini_, or _valvasors_[g]: who are mentioned by our antient lawyers[h] as _viri magnae dignitatis_; and sir edward coke[i] speaks highly of them. yet they are now quite out of use; and our legal antiquarians are not so much as agreed upon their original or ancient office. [footnote g: camden. _ibid._] [footnote h: bracton. _l._ 1. _c._ 8.] [footnote i: 2 inst. 667.] now therefore the first dignity after the nobility, is a _knight_ of the order of st. george, or _of the garter_; first instituted by edward iii, _a.d._ 1344[k]. next follows a _knight banneret_; who indeed by statutes 5 ric. ii. st. 2. c. 4. and 14 ric. ii. c. 11. is ranked next after barons: and that precedence was confirmed to him by order of king james i, in the tenth year of his reign[l]. but, in order to intitle himself to this rank, he must have been created by the king in person, in the field, under the royal banners, in time of open war[m]. else he ranks after _baronets_; who are the next order: which title is a dignity of inheritance, created by letters patent, and usually descendible to the issue male. it was first instituted by king james the first, _a.d._ 1611. in order to raise a competent sum for the reduction of the province of ulster in ireland; for which reason all baronets have the arms of ulster superadded to their family coat. next follow _knights of the bath_; an order instituted by king henry iv, and revived by king george the first. they are so called from the ceremony of bathing, the night before their creation. the last of these inferior nobility are _knights bachelors_; the most antient, though the lowest, order of knighthood amongst us: for we have an instance[n] of king alfred's conferring this order on his son athelstan. the custom of the antient germans was to give their young men a shield and a lance in the great council: this was equivalent to the _toga virilis_ of the romans: before this they were not permitted to bear arms, but were accounted as part of the father's houshold; after it, as part of the public[o]. hence some derive the usage of knighting, which has prevailed all over the western world, since it's reduction by colonies from those northern heroes. knights are called in latin _equites aurati_; _aurati_, from the gilt spurs they wore; and _equites_, because they always served on horseback: for it is observable[p], that almost all nations call their knights by some appellation derived from an horse. they are also called in our law _milites_, because they formed a part, or indeed the whole of the royal army, in virtue of their feodal tenures; one condition of which was, that every one who held a knights fee (which in henry the second's time[q] amounted to 20_l._ _per annum_) was obliged to be knighted, and attend the king in his wars, or fine for his non-compliance. the exertion of this prerogative, as an expedient to raise money in the reign of charles the first, gave great offence; though warranted by law, and the recent example of queen elizabeth: but it was, at the restoration, together with all other military branches of the feodal law, abolished; and this kind of knighthood has, since that time, fallen into great disregard. [footnote k: seld. tit. of hon. 2. 5. 41.] [footnote l: seld. tit. hon. 2. 11. 3.] [footnote m: 4 inst. 6.] [footnote n: will. malmsb. _lib._ 2.] [footnote o: tac. _de morib. germ._ 13.] [footnote p: camden. _ibid._ co. litt. 74.] [footnote q: glanvil. _l._ 9. _c._ 4.] these, sir edward coke says[r], are all the names of _dignity_ in this kingdom, esquires and gentlemen being only names of _worship_. but before these last the heralds rank all colonels, serjeants at law, and doctors in the three learned professions. [footnote r: 2 inst. 667.] esquires and gentlemen are confounded together by sir edward coke, who observes[s], that every esquire is a gentleman, and a gentleman is defined to be one _qui arma gerit_, who bears coat armour, the grant of which adds gentility to a man's family: in like manner as civil nobility, among the romans, was founded in the _jus imaginum_, or having the image of one ancestor at least, who had borne some curule office. it is indeed a matter somewhat unsettled, what constitutes the distinction, or who is a real _esquire_: for it is not an estate, however large, that confers this rank upon it's owner. camden, who was himself a herald, distinguishes them the most accurately; and he reckons up four sorts of them[t]: 1. the eldest sons of knights, and their eldest sons, in perpetual succession[u]. 2. the younger sons of peers, and their eldest sons, in like perpetual succession: both which species of esquires sir h. spelman entitles _armigeri natalitii_[w]. 3. esquires created by the king's letters patent, or other investiture; and their eldest sons. 4. esquires by virtue of their offices; as justices of the peace, and others who bear any office of trust under the crown. to these may be added the esquires of knights of the bath, each of whom constitutes three at his installation; and all foreign, nay, irish peers; and the eldest sons of peers of great britain, who, though generally titular lords, are only esquires in the law, and must so be named in all legal proceedings[x]. as for _gentlemen_, says sir thomas smith[y], they be made good cheap in this kingdom: for whosoever studieth the laws of the realm, who studieth in the universities, who professeth liberal sciences, and (to be short) who can live idly, and without manual labour, and will bear the port, charge, and countenance of a gentleman, he shall be called master, and shall be taken for a gentleman. a _yeoman_ is he that hath free land of forty shillings by the year; who is thereby qualified to serve on juries, vote for knights of the shire, and do any other act, where the law requires one that is _probus et legalis homo_[z]. [footnote s: 2 inst. 668.] [footnote t: _ibid._] [footnote u: 2 inst. 667.] [footnote w: gloss. 43.] [footnote x: 3 inst. 30. 2 inst. 667.] [footnote y: commonw. of eng. book 1. c. 20.] [footnote z: 2 inst. 668.] the rest of the commonalty are _tradesmen_, _artificers_, and _labourers_; who (as well as all others) must in pursuance of the statute 1 hen. v. c. 5. be stiled by the name and addition of their estate, degree, or mystery, in all actions and other legal proceedings. chapter the thirteenth. of the military and maritime states. the military state includes the whole of the soldiery; or, such persons as are peculiarly appointed among the rest of the people, for the safeguard and defence of the realm. in a land of liberty it is extremely dangerous to make a distinct order of the profession of arms. in absolute monarchies this is necessary for the safety of the prince, and arises from the main principle of their constitution, which is that of governing by fear: but in free states the profession of a soldier, taken singly and merely as a profession, is justly an object of jealousy. in these no man should take up arms, but with a view to defend his country and it's laws: he puts not off the citizen when he enters the camp; but it is because he is a citizen, and would wish to continue so, that he makes himself for a while a soldier. the laws therefore and constitution of these kingdoms know no such state as that of a perpetual standing soldier, bred up to no other profession than that of war: and it was not till the reign of henry vii, that the kings of england had so much as a guard about their persons. in the time of our saxon ancestors, as appears from edward the confessor's laws[a], the military force of this kingdom was in the hands of the dukes or heretochs, who were constituted through every province and county in the kingdom; being taken out of the principal nobility, and such as were most remarkable for being "_sapientes, fideles, et animosi_." their duty was to lead and regulate the english armies, with a very unlimited power; "_prout eis visum fuerit, ad honorem coronae et utilitatem regni_." and because of this great power they were elected by the people in their full assembly, or folkmote, in the same manner as sheriffs were elected: following still that old fundamental maxim of the saxon constitution, that where any officer was entrusted with such power, as if abused might tend to the oppression of the people, that power was delegated to him by the vote of the people themselves[b]. so too, among the antient germans, the ancestors of our saxon forefathers, they had their dukes, as well as kings, with an independent power over the military, as the kings had over the civil state. the dukes were elective, the kings hereditary: for so only can be consistently understood that passage of tacitus[c], "_reges ex nobilitate, duces ex virtute sumunt_;" in constituting their kings, the family, or blood royal, was regarded, in chusing their dukes or leaders, warlike merit: just as caesar relates of their ancestors in his time, that whenever they went to war, by way either of attack or defence, they _elected_ leaders to command them[d]. this large share of power, thus conferred by the people, though intended to preserve the liberty of the subject, was perhaps unreasonably detrimental to the prerogative of the crown: and accordingly we find a very ill use made of it by edric duke of mercia, in the reign of king edmond ironside; who, by his office of duke or heretoch, was entitled to a large command in the king's army, and by his repeated treacheries at last transferred the crown to canute the dane. [footnote a: _c. de heretochiis._] [footnote b: "_isti vero viri eliguntur per commune consilium, pro communi utilitate regni, per provincias et patrias universas, et per singulos comitatus, in pleno folkmote, sicut et vice-comites provinciarum et comitatuum eligi debent._" _ll. edw. confess._ _ibid._ see also bede, _eccl. hist._ _l._ 5. _c._ 10.] [footnote c: _de morib. german._ 7.] [footnote d: "_quum bellum civitas aut illatum defendit, aut infert, magistratus qui ei bello praesint deliguntur._" _de bell. gall._ _l._ 6. _c._ 22.] it seems universally agreed by all historians, that king alfred first settled a national militia in this kingdom, and by his prudent discipline made all the subjects of his dominion soldiers: but we are unfortunately left in the dark as to the particulars of this his so celebrated regulation; though, from what was last observed, the dukes seem to have been left in possession of too large and independent a power: which enabled duke harold on the death of edward the confessor, though a stranger to the royal blood, to mount for a short space the throne of this kingdom, in prejudice of edgar atheling, the rightful heir. upon the norman conquest the feodal law was introduced here in all it's rigor, the whole of which is built on a military plan. i shall not now enter into the particulars of that constitution, which belongs more properly to the next part of our commentaries: but shall only observe, that, in consequence thereof, all the lands in the kingdom were divided into what were called knight's fees, in number above sixty thousand; and for every knight's fee a knight or soldier, _miles_, was bound to attend the king in his wars, for forty days in a year; in which space of time, before war was reduced to a science, the campaign was generally finished, and a kingdom either conquered or victorious[e]. by this means the king had, without any expense, an army of sixty thousand men always ready at his command. and accordingly we find one, among the laws of william the conqueror[f], which in the king's name commands and firmly enjoins the personal attendance of all knights and others; "_quod habeant et teneant se semper in armis et equis, ut decet et oportet; et quod semper sint prompti et parati ad servitium suum integrum nobis explendum et peragendum, cum opus adfuerit, secundum quod debent de feodis et tenementis suis de jure nobis facere_." this personal service in process of time degenerated into pecuniary commutations or aids, and at last the military part of the feodal system was abolished at the restoration, by statute 12 car. ii. c. 24. [footnote e: the poles are, even at this day, so tenacious of their antient constitution, that their pospolite, or militia, cannot be compelled to serve above six weeks, or forty days, in a year. mod. univ. hist. xxxiv. 12.] [footnote f: c. 58. see co. litt. 75, 76.] in the mean time we are not to imagine that the kingdom was left wholly without defence, in case of domestic insurrections, or the prospect of foreign invasions. besides those, who by their military tenures were bound to perform forty days service in the field, the statute of winchester[g] obliged every man, according to his estate and degree, to provide a determinate quantity of such arms as were then in use, in order to keep the peace: and constables were appointed in all hundreds to see that such arms were provided. these weapons were changed, by the statute 4 & 5 ph. & m. c. 2. into others of more modern service; but both this and the former provision were repealed in the reign of james i[h]. while these continued in force, it was usual from time to time for our princes to to [transcriber's note: duplicate word] issue commissions of array, and send into every county officers in whom they could confide, to muster and array (or set in military order) the inhabitants of every district: and the form of the commission of array was settled in parliament in the 5 hen. iv[i]. but at the same time it was provided[k], that no man should be compelled to go out of the kingdom at any rate, nor out of his shire but in cases of urgent necessity; nor should provide soldiers unless by consent of parliament. about the reign of king henry the eighth, and his children, lord lieutenants began to be introduced, as standing representatives of the crown, to keep the counties in military order; for we find them mentioned as known officers in the statute 4 & 5 ph. & m. c. 3. though they had not been then long in use, for camden speaks of them[l], in the time of queen elizabeth, as extraordinary magistrates constituted only in times of difficulty and danger. [footnote g: 13 edw. i. c. 6.] [footnote h: stat. 1 jac. i. c. 25. 21 jac. i. c. 28.] [footnote i: rushworth. part 3. pag. 667.] [footnote k: stat. 1 edw iii. st. 2. c. 5 & 7. 25 edw. iii. st. 5. c. 8.] [footnote l: brit. 103. edit. 1594.] in this state things continued, till the repeal of the statutes of armour in the reign of king james the first: after which, when king charles the first had, during his northern expeditions, issued commissions of lieutenancy and exerted some military powers which, having been long exercised, were thought to belong to the crown, it became a question in the long parliament, how far the power of the militia did inherently reside in the king; being now unsupported by any statute, and founded only upon immemorial usage. this question, long agitated with great heat and resentment on both sides, became at length the immediate cause of the fatal rupture between the king and his parliament: the two houses not only denying this prerogative of the crown, the legality of which right perhaps might be somewhat doubtful; but also seizing into their own hands the intire power of the militia, the illegality of which step could never be any doubt at all. soon after the restoration of king charles the second, when the military tenures were abolished, it was thought proper to ascertain the power of the militia, to recognize the sole right of the crown to govern and command them, and to put the whole into a more regular method of military subordination[m]: and the order, in which the militia now stands by law, is principally built upon the statutes which were then enacted. it is true the two last of them are apparently repealed; but many of their provisions are re-enacted, with the addition of some new regulations, by the present militia laws: the general scheme of which is to discipline a certain number of the inhabitants of every county, chosen by lot for three years, and officered by the lord lieutenant, the deputy lieutenants, and other principal landholders, under a commission from the crown. they are not compellable to march out of their counties, unless in case of invasion or actual rebellion, nor in any case compellable to march out of the kingdom. they are to be exercised at stated times: and their discipline in general is liberal and [transcriber's note: 'and' missing here but is in printer's mark on previous page] easy; but, when drawn out into actual service, they are subject to the rigours of martial law, as necessary to keep them in order. this is the constitutional security, which our laws have provided for the public peace, and for protecting the realm against foreign or domestic violence; and which the statutes[n] declare is essentially necessary to the safety and prosperity of the kingdom. [footnote m: 13 car. ii. c. 6. 14 car. ii. c. 3. 15 car. ii. c. 4.] [footnote n: 30 geo. ii. c. 25, &c.] when the nation is engaged in a foreign war, more veteran troops and more regular discipline may perhaps be necessary, than can be expected from a mere militia. and therefore at such times particular provisions have been usually made for the raising of armies and the due regulation and discipline of the soldiery: which are to be looked upon only as temporary excrescences bred out of the distemper of the state, and not as any part of the permanent and perpetual laws of the kingdom. for martial law, which is built upon no settled principles, but is entirely arbitrary in it's decisions, is, as sir matthew hale observes[o], in truth and reality no law, but something indulged, rather than allowed as a law: the necessity of order and discipline in an army is the only thing which can give it countenance; and therefore it ought not to be permitted in time of peace, when the king's courts are open for all persons to receive justice according to the laws of the land. wherefore edmond earl of kent being taken at pontefract, 15 edw. ii. and condemned by martial law, his attainder was reversed 1 edw. iii. because it was done in time of peace. and it is laid down[p], that if a lieutenant, or other, that hath commission of martial authority, doth in time of peace hang or otherwise execute any man by colour of martial law, this is murder; for it is against _magna carta_[q]. and the petition of right[r] enacts, that no soldier shall be quartered on the subject without his own consent[s]; and that no commission shall issue to proceed within this land according to martial law. and whereas, after the restoration, king charles the second kept up about five thousand regular troops, by his own authority, for guards and garrisons; which king james the second by degrees increased to no less than thirty thousand, all paid from his own civil list; it was made one of the articles of the bill of rights[t], that the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law. [footnote o: hist. c.l. c. 2.] [footnote p: 3 inst. 52.] [footnote q: _cap._ 29.] [footnote r: 3 car. i. see also stat. 31 car. ii. c. 1.] [footnote s: thus, in poland, no soldier can be quartered upon the gentry, the only freemen in that republic. mod. univ. hist. xxxiv. 23.] [footnote t: stat. 1 w. & m. st. 2. c. 2.] but, as the fashion of keeping standing armies has universally prevailed over all europe of late years (though some of it's potentates, being unable themselves to maintain them, are obliged to have recourse to richer powers, and receive subsidiary pensions for that purpose) it has also for many years past been annually judged necessary by our legislature, for the safety of the kingdom, the defence of the possessions of the crown of great britain, and the preservation of the balance of power in europe, to maintain even in time of peace a standing body of troops, under the command of the crown; who are however _ipso facto_ disbanded at the expiration of every year, unless continued by parliament. to prevent the executive power from being able to oppress, says baron montesquieu[u], it is requisite that the armies with which it is entrusted should consist of the people, and have the same spirit with the people; as was the case at rome, till marius new-modelled the legions by enlisting the rabble of italy, and laid the foundation of all the military tyranny that ensued. nothing then, according to these principles, ought to be more guarded against in a free state, than making the military power, when such a one is necessary to be kept on foot, a body too distinct from the people. like ours therefore, it should wholly be composed of natural subjects; it ought only to be enlisted for a short and limited time; the soldiers also should live intermixed with the people; no separate camp, no barracks, no inland fortresses should be allowed. and perhaps it might be still better, if, by dismissing a stated number and enlisting others at every renewal of their term, a circulation could be kept up between the army and the people, and the citizen and the soldier be more intimately connected together. [footnote u: sp. l. 11. 6.] to keep this body of troops in order, an annual act of parliament likewise passes, "to punish mutiny and desertion, and for the better payment of the army and their quarters." this regulates the manner in which they are to be dispersed among the several inn-keepers and victuallers throughout the kingdom; and establishes a law martial for their government. by this, among other things, it is enacted, that if any officer and soldier shall excite, or join any mutiny, or, knowing of it, shall not give notice to the commanding officer; or shall defect, or list in any other regiment, or sleep upon his post, or leave it before he is relieved, or hold correspondence with a rebel or enemy, or strike or use violence to his superior officer, or shall disobey his lawful commands; such offender shall suffer such punishment as a court martial shall inflict, though it extend to death itself. however expedient the most strict regulations may be in time of actual war, yet, in times of profound peace, a little relaxation of military rigour would not, one should hope, be productive of much inconvenience. and, upon this principle, though by our standing laws[w] (still remaining in force, though not attended to) desertion in time of war is made felony, without benefit of clergy, and the offence is triable by a jury and before the judges of the common law; yet, by our militia laws beforementioned, a much lighter punishment is inflicted for desertion in time of peace. so, by the roman law also, desertion in time of war was punished with death, but more mildly in time of tranquillity[x]. but our mutiny act makes no such distinction: for any of the faults therein mentioned are, equally at all times, punishable with death itself, if a court martial shall think proper. this discretionary power of the court martial is indeed to be guided by the directions of the crown; which, with regard to military offences, has almost an absolute legislative power. "his majesty, says the act, may form articles of war, and constitute courts martial, with power to try any crime by such articles, and inflict such penalties as the articles direct." a vast and most important trust! an unlimited power to create crimes, and annex to them any punishments, not extending to life or limb! these are indeed forbidden to be inflicted, except for crimes declared to be so punishable by this act; which crimes we have just enumerated, and, among which, we may observe that any disobedience to lawful commands is one. perhaps in some future revision of this act, which is in many respects hastily penned, it may be thought worthy the wisdom of parliament to ascertain the limits of military subjection, and to enact express articles of war for the government of the army, as is done for the government of the navy: especially as, by our present constitution, the nobility and gentry of the kingdom, who serve their country as militia officers, are annually subjected to the same arbitrary rule, during their time of exercise. [footnote w: stat. 18 hen. vi. c. 19. 2 & 3 edw. vi. c. 2.] [footnote x: _ff._ 49. 16. 5.] one of the greatest advantages of our english law is, that not only the crimes themselves which it punishes, but also the penalties which it inflicts, are ascertained and notorious: nothing is left to arbitrary discretion: the king by his judges dispenses what the law has previously ordained; but is not himself the legislator. how much therefore is it to be regretted that a set of men, whose bravery has so often preserved the liberties of their country, should be reduced to a state of servitude in the midst of a nation of freemen! for sir edward coke will inform us[y], that it is one of the genuine marks of servitude, to have the law, which is our rule of action, either concealed or precarious: "_misera est servitus, ubi jus est vagum aut incognitum_." nor is this state of servitude quite consistent with the maxims of sound policy observed by other free nations. for, the greater the general liberty is which any state enjoys, the more cautious has it usually been of introducing slavery in any particular order or profession. these men, as baron montesquieu observes[z], seeing the liberty which others possess, and which they themselves are excluded from, are apt (like eunuchs in the eastern seraglios) to live in a state of perpetual envy and hatred towards the rest of the community; and indulge a malignant pleasure in contributing to destroy those privileges, to which they can never be admitted. hence have many free states, by departing from this rule, been endangered by the revolt of their slaves: while, in absolute and despotic governments where there no real liberty exists, and consequently no invidious comparisons can be formed, such incidents are extremely rare. two precautions are therefore advised to be observed in all prudent and free governments; 1. to prevent the introduction of slavery at all: or, 2. if it be already introduced, not to intrust those slaves with arms; who will then find themselves an overmatch for the freemen. much less ought the soldiery to be an exception to the people in general, and the only state of servitude in the nation. [footnote y: 4 inst. 332.] [footnote z: sp. l. 15. 12.] but as soldiers, by this annual act, are thus put in a worse condition than any other subjects, so, by the humanity of our standing laws, they are in some cases put in a much better. by statute 43 eliz. c. 3. a weekly allowance is to be raised in every county for the relief of soldiers that are sick, hurt, and maimed: not forgetting the royal hospital at chelsea for such as are worn out in their duty. officers and soldiers, that have been in the king's service, are by several statutes, enacted at the close of several wars, at liberty to use any trade or occupation they are fit for, in any town in the kingdom (except the two universities) notwithstanding any statute, custom, or charter to the contrary. and soldiers in actual military service may make their wills, and dispose of their goods, wages, and other personal chattels, without those forms, solemnities, and expenses, which the law requires in other cases[a]. our law does not indeed extend this privilege so far as the civil law; which carried it to an extreme that borders upon the ridiculous. for if a soldier, in the article of death, wrote any thing in bloody letters on his shield, or in the dust of the field with his sword, it was a very good military testament[b]. and thus much for the military state, as acknowleged by the laws of england. [footnote a: stat. 29 car. ii. c. 3. 5 w. iii. c. 21. â§. 6.] [footnote b: _si milites quid in clypeo literis sanguine suo rutilantibus adnotaverint, aut in pulvere inscripserint gladio suo, ipso tempore quo, in praelio, vitae sortem derelinquunt, hujusmodi voluntatem stabilem esse oportet._ _cod._ 6. 21. 15.] the _maritime_ state is nearly related to the former; though much more agreeable to the principles of our free constitution. the royal navy of england hath ever been it's greatest defence and ornament: it is it's antient and natural strength; the floating bulwark of the island; an army, from which, however strong and powerful, no danger can ever be apprehended to liberty: and accordingly it has been assiduously cultivated, even from the earliest ages. to so much perfection was our naval reputation arrived in the twelfth century, that the code of maritime laws, which are called the laws of oleron, and are received by all nations in europe as the ground and substruction of all their marine constitutions, was confessedly compiled by our king richard the first, at the isle of oleron on the coast of france, then part of the possessions of the crown of england[c]. and yet, so vastly inferior were our ancestors in this point to the present age, that even in the maritime reign of queen elizabeth, sir edward coke[d] thinks it matter of boast, that the royal navy of england then consisted of _three and thirty_ ships. the present condition of our marine is in great measure owing to the salutary provisions of the statutes, called the navigation-acts; whereby the constant increase of english shipping and seamen was not only encouraged, but rendered unavoidably necessary. by the statute 5 ric. ii. c. 3. in order to augment the navy of england, then greatly diminished, it was ordained, that none of the king's liege people should ship any merchandize out of or into the realm but only in ships of the king's ligeance, on pain of forfeiture. in the next year, by statute 6 ric. ii. c. 8. this wise provision was enervated, by only obliging the merchants to give english ships, (if able and sufficient) the preference. but the most beneficial statute for the trade and commerce of these kingdoms is that navigation-act, the rudiments of which were first framed in 1650[e], with a narrow partial view: being intended to mortify the sugar islands, which were disaffected to the parliament and still held out for charles ii, by stopping the gainful trade which they then carried on with the dutch[f]; and at the same time to clip the wings of those our opulent and aspiring neighbours. this prohibited all ships of foreign nations from trading with any english plantations without licence from the council of state. in 1651[g] the prohibition was extended also to the mother country; and no goods were suffered to be imported into england, or any of it's dependencies, in any other than english bottoms; or in the ships of that european nation of which the merchandize imported was the genuine growth or manufacture. at the restoration, the former provisions were continued, by statute 12 car. ii. c. 18. with this very material improvement, that the master and three fourths of the mariners shall also be english subjects. [footnote c: 4 inst. 144. _coutumes de la mer._ 2.] [footnote d: 4 inst. 50.] [footnote e: scobell 132.] [footnote f: mod. un. hist. xli. 289.] [footnote g: scobell. 176.] many laws have been made for the supply of the royal navy with seamen; for their regulation when on board; and to confer privileges and rewards on them during and after their service. 1. first, for their supply. the power of impressing men for the sea service by the king's commission, has been a matter of some dispute, and submitted to with great reluctance; though it hath very clearly and learnedly been shewn, by sir michael foster[h], that the practise of impressing, and granting powers to the admiralty for that purpose, is of very antient date, and hath been uniformly continued by a regular series of precedents to the present time: whence he concludes it to be part of the common law[i]. the difficulty arises from hence, that no statute has expressly declared this power to be in the crown, though many of them very strongly imply it. the statute 2 ric. ii. c. 4. speaks of mariners being arrested and retained for the king's service, as of a thing well known, and practised without dispute; and provides a remedy against their running away. by a later statute[k], if any waterman, who uses the river thames, shall hide himself during the execution of any commission of pressing for the king's service, he is liable to heavy penalties. by another[l], no fisherman shall be taken by the queen's commission to serve as a mariner; but the commission shall be first brought to two justices of the peace, inhabiting near the sea coast where the mariners are to be taken, to the intent that the justices may chuse out and return such a number of ablebodied men, as in the commission are contained, to serve her majesty. and, by others[m], especial protections are allowed to seamen in particular circumstances, to prevent them from being impressed. all which do most evidently imply a power of impressing to reside somewhere; and, if any where, it must from the spirit of our constitution, as well as from the frequent mention of the king's commission, reside in the crown alone. [footnote h: rep. 154.] [footnote i: see also comb. 245.] [footnote k: stat. 2 & 3 ph. & m. c. 16.] [footnote l: stat. 5 eliz. c. 5.] [footnote m: stat. 7 & 8 w. iii. c. 21. 2 ann. c. 6. 4 & 5 ann. c. 19. 13 geo. ii. c. 17. &c.] but, besides this method of impressing, (which is only defensible from public necessity, to which all private considerations must give way) there are other ways that tend to the increase of seamen, and manning the royal navy. parishes may bind out poor boys apprentices to masters of merchantmen, who shall be protected from impressing for the first three years; and if they are impressed afterwards, the masters shall be allowed their wages[n]: great advantages in point of wages are given to volunteer seamen in order to induce them to enter into his majesty's service[o]: and every foreign seaman, who during a war shall serve two years in any man of war, merchantman, or privateer, is naturalized _ipso facto_[p]. about the middle of king william's reign, a scheme was set on foot[q] for a register of seamen to the number of thirty thousand, for a constant and regular supply of the king's fleet; with great privileges to the registered men, and, on the other hand, heavy penalties in case of their non-appearance when called for: but this registry, being judged to be rather a badge of slavery, was abolished by statute 9 ann. c. 21. [footnote n: stat. 2 ann. c. 6.] [footnote o: stat. 1 geo. ii. st. 2. c. 14.] [footnote p: stat. 13 geo. ii. c. 3.] [footnote q: stat. 7 & 8 w. iii. c. 21.] 2. the method of ordering seamen in the royal fleet, and keeping up a regular discipline there, is directed by certain express rules, articles and orders, first enacted by the authority of parliament soon after the restoration[r]; but since new-modelled and altered, after the peace of aix la chapelle[s], to remedy some defects which were of fatal consequence in conducting the preceding war. in these articles of the navy almost every possible offence is set down, and the punishment thereof annexed: in which respect the seamen have much the advantage over their brethren in the land service; whose articles of war are not enacted by parliament, but framed from time to time at the pleasure of the crown. yet from whence this distinction arose, and why the executive power, which is limited so properly with regard to the navy, should be so extensive with regard to the army, it is hard to assign a reason: unless it proceeded from the perpetual establishment of the navy, which rendered a permanent law for their regulation expedient; and the temporary duration of the army, which subsisted only from year to year; and might therefore with less danger be subjected to discretionary government. but, whatever was apprehended at the first formation of the mutiny act, the regular renewal of our standing force at the entrance of every year has made this distinction idle. for, if from experience past we may judge of future events, the army is now lastingly ingrafted into the british constitution; with this singularly fortunate circumstance, that any branch of the legislature may annually put an end to it's legal existence, by refusing to concur in it's continuance. [footnote r: stat. 13 car. ii. st. 1. c. 9.] [footnote s: stat. 22 geo. ii. c. 23.] 3. with regard to the privileges conferred on sailors, they are pretty much the same with those conferred on soldiers; with regard to relief, when maimed, or wounded, or superannuate, either by county rates, or the royal hospital at greenwich; with regard also to the exercise of trades, and the power of making informal testaments: and, farther[t], no seaman aboard his majesty's ships can be arrested for any debt, unless the same be sworn to amount to at least twenty pounds; though, by the annual mutiny acts, a soldier may be arrested for a debt which extends to half that value, but not to a less amount. [footnote t: stat. 1 geo. ii. st. 2. c. 14.] chapter the fourteenth. of master and servant. having thus commented on the rights and duties of persons, as standing in the _public_ relations of magistrates and people; the method i have marked out now leads me to consider their rights and duties in _private_ oeconomical relations. the three great relations in private life are, 1. that of _master and servant_; which is founded in convenience, whereby a man is directed to call in the assistance of others, where his own skill and labour will not be sufficient to answer the cares incumbent upon him. 2. that of _husband and wife_; which is founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated. 3. that of _parent and child_, which is consequential to that of marriage, being it's principal end and design: and it is by virtue of this relation that infants are protected, maintained, and educated. but, since the parents, on whom this care is primarily incumbent, may be snatched away by death or otherwise, before they have completed their duty, the law has therefore provided a fourth relation; 4. that of _guardian and ward_, which is a kind of artificial parentage, in order to supply the deficiency, whenever it happens, of the natural. of all these relations in their order. in discussing the relation of _master and servant_, i shall, first, consider the several sorts of servants, and how this relation is created and destroyed: secondly, the effects of this relation with regard to the parties themselves: and, lastly, it's effect with regard to other persons. i. as to the several sorts of servants: i have formerly observed[a] that pure and proper slavery does not, nay cannot, subsist in england; such i mean, whereby an absolute and unlimited power is given to the master over the life and fortune of the slave. and indeed it is repugnant to reason, and the principles of natural law, that such a state should subsist any where. the three origins of the right of slavery assigned by justinian[b], are all of them built upon false foundations. as, first, slavery is held to arise "_jure gentium_," from a state of captivity in war; whence slaves are called _mancipia, quasi manu capti_. the conqueror, say the civilians, had a right to the life of his captive; and, having spared that, has a right to deal with him as he pleases. but it is an untrue position, when taken generally, that, by the law of nature or nations, a man may kill his enemy: he has only a right to kill him, in particular cases; in cases of absolute necessity, for self-defence; and it is plain this absolute necessity did not subsist, since the victor did not actually kill him, but made him prisoner. war is itself justifiable only on principles of self-preservation; and therefore it gives no other right over prisoners, but merely to disable them from doing harm to us, by confining their persons: much less can it give a right to kill, torture, abuse, plunder, or even to enslave, an enemy, when the war is over. since therefore the right of _making_ slaves by captivity, depends on a supposed right of slaughter, that foundation failing, the consequence drawn from it must fail likewise. but, secondly, it is said that slavery may begin "_jure civili_;" when one man sells himself to another. this, if only meant of contracts to serve or work for another, is very just: but when applied to strict slavery, in the sense of the laws of old rome or modern barbary, is also impossible. every sale implies a price, a _quid pro quo_, an equivalent given to the seller in lieu of what he transfers to the buyer: but what equivalent can be given for life, and liberty, both of which (in absolute slavery) are held to be in the master's disposal? his property also, the very price he seems to receive, devolves _ipso facto_ to his master, the instant he becomes his slave. in this case therefore the buyer gives nothing, and the seller receives nothing: of what validity then can a sale be, which destroys the very principles upon which all sales are founded? lastly, we are told, that besides these two ways by which slaves "_fiunt_," or are acquired, they may also be hereditary: "_servi nascuntur_;" the children of acquired slaves are, _jure naturae_, by a negative kind of birthright, slaves also. but this being built on the two former rights must fall together with them. if neither captivity, nor the sale of oneself, can by the law of nature and reason, reduce the parent to slavery, much less can it reduce the offspring. [footnote a: pag. 123.] [footnote b: _servi aut fiunt, aut nascuntur: fiunt jure gentium, aut jure civili: nascuntur ex ancillis nostris._ _inst._ 1. 3. 4.] upon these principles the law of england abhors, and will not endure the existence of, slavery within this nation: so that when an attempt was made to introduce it, by statute 1 edw. vi. c. 3. which ordained, that all idle vagabonds should be made slaves, and fed upon bread, water, or small drink, and refuse meat; should wear a ring of iron round their necks, arms, or legs; and should be compelled by beating, chaining, or otherwise, to perform the work assigned them, were it never so vile; the spirit of the nation could not brook this condition, even in the most abandoned rogues; and therefore this statute was repealed in two years afterwards[c]. and now it is laid down[d], that a slave or negro, the instant he lands in england, becomes a freeman; that is, the law will protect him in the enjoyment of his person, his liberty, and his property. yet, with regard to any right which the master may have acquired, by contract or the like, to the perpetual service of john or thomas, this will remain exactly in the same state as before: for this is no more than the same state of subjection for life, which every apprentice submits to for the space of seven years, or sometimes for a longer term. hence too it follows, that the infamous and unchristian practice of withholding baptism from negro servants, lest they should thereby gain their liberty, is totally without foundation, as well as without excuse. the law of england acts upon general and extensive principles: it gives liberty, rightly understood, that is, protection, to a jew, a turk, or a heathen, as well as to those who profess the true religion of christ; and it will not dissolve a civil contract, either express or implied, between master and servant, on account of the alteration of faith in either of the contracting parties: but the slave is entitled to the same liberty in england before, as after, baptism; and, whatever service the heathen negro owed to his english master, the same is he bound to render when a christian. [footnote c: stat. 3 & 4 edw. vi. c. 16.] [footnote d: salk. 666.] 1. the first sort of servants therefore, acknowleged by the laws of england, are _menial servants_; so called from being _intra moenia_, or domestics. the contract between them and their masters arises upon the hiring. if the hiring be general without any particular time limited, the law construes it to be a hiring for a year[e]; upon a principle of natural equity, that the servant shall serve, and the master maintain him, throughout all the revolutions of the respective seasons; as well when there is work to be done, as when there is not[f]: but the contract may be made for any larger or smaller term. all single men between twelve years old and sixty, and married ones under thirty years of age, and all single women between twelve and forty, not having any visible livelihood, are compellable by two justices to go out to service, for the promotion of honest industry: and no master can put away his servant, or servant leave his master, either before or at the end of his term, without a quarter's warning; unless upon reasonable cause to be allowed by a justice of the peace[g]: but they may part by consent, or make a special bargain. [footnote e: co. litt. 42.] [footnote f: f.n.b. 168.] [footnote g: stat. 5 eliz. c. 4.] 2. another species of servants are called _apprentices_ (from _apprendre_, to learn) and are usually bound for a term of years, by deed indented or indentures, to serve their masters, and be maintained and instructed by them: for which purpose our statute law[h] has made minors capable of binding themselves. this is usually done to persons of trade, in order to learn their art and mystery; and sometimes very large sums are given with them, as a premium for such their instruction: but it may be done to husbandmen, nay to gentlemen, and others. and[i] children of poor persons may be apprenticed out by the overseers, with consent of two justices, till twenty four years of age, to such persons as are thought fitting; who are also compellable to take them: and it is held, that gentlemen of fortune, and clergymen, are equally liable with others to such compulsion[k]. apprentices to trades may be discharged on reasonable cause, either at request of themselves or masters, at the quarter sessions, or by one justice, with appeal to the sessions[l]: who may, by the equity of the statute, if they think it reasonable, direct restitution of a ratable share of the money given with the apprentice[m]. and parish apprentices may be discharged in the same manner, by two justices[n]. [footnote h: stat. 5 eliz. c. 4.] [footnote i: stat. 5 eliz. c. 4. 43 eliz. c. 2. 1 jac. i. c. 25. 7 jac. i. c. 3. 8 & 9 w. & m. c. 30. 2 & 3 ann. c. 6. 4 ann. c. 19. 17 geo. ii. c. 5.] [footnote k: salk. 57. 491.] [footnote l: stat. 5 eliz. c. 4.] [footnote m: salk. 67.] [footnote n: stat. 20 geo. ii. c. 19.] 3. a third species of servants are _labourers_, who are only hired by the day or the week, and do not live _intra moenia_, as part of the family; concerning whom the statute so often cited[o] has made many very good regulations; 1. directing that all persons who have no visible effects may be compelled to work: 2. defining how long they must continue at work in summer and winter: 3. punishing such as leave or desert their work: 4. empowering the justices at sessions, or the sheriff of the county, to settle their wages: and 5. inflicting penalties on such as either give, or exact, more wages than are so settled. [footnote o: stat. 5 eliz. c. 4.] 4. there is yet a fourth species of servants, if they may be so called, being rather in a superior, a ministerial, capacity; such as _stewards_, _factors_, and _bailiffs_: whom however the law considers as servants _pro tempore_, with regard to such of their acts, as affect their master's or employer's property. which leads me to consider, ii. the manner in which this relation, of service, affects either the master or servant. and, first, by hiring and service for a year, or apprenticeship under indentures, a person gains a settlement in that parish wherein he last served forty days[p]. in the next place persons serving as apprentices to any trade have an exclusive right to exercise that trade in any part of england[q]. this law, with regard to the exclusive part of it, has by turns been looked upon as a hard law, or as a beneficial one, according to the prevailing humour of the times: which has occasioned a great variety of resolutions in the courts of law concerning it; and attempts have been frequently made for it's repeal, though hitherto without success. at common law every man might use what trade he pleased; but this statute restrains that liberty to such as have served as apprentices: the adversaries to which provision say, that all restrictions (which tend to introduce monopolies) are pernicious to trade; the advocates for it alledge, that unskilfulness in trades is equally detrimental to the public, as monopolies. this reason indeed only extends to such trades, in the exercise whereof skill is required: but another of their arguments goes much farther; viz. that apprenticeships are useful to the commonwealth, by employing of youth, and learning them to be early industrious; but that no one would be induced to undergo a seven years servitude, if others, though equally skilful, were allowed the same advantages without having undergone the same discipline: and in this there seems to be much reason. however, the resolutions of the courts have in general rather confined than extended the restriction. no trades are held to be within the statute, but such as were in being at the making of it[r]: for trading in a country village, apprenticeships are not requisite[s]: and following the trade seven years is sufficient without any binding; for the statute only says, the person must serve _as_ an apprentice, and does not require an actual apprenticeship to have existed[t]. [footnote p: see page 352.] [footnote q: stat. 5 eliz. c. 4.] [footnote r: lord raym. 514.] [footnote s: 1 ventr. 51. 2 keb. 583.] [footnote t: lord raym. 1179.] a master may by law correct his apprentice or servant for negligence or other misbehaviour, so it be done with moderation[u]: though, if the master's wife beats him, it is good cause of departure[w]. but if any servant, workman, or labourer assaults his master or dame, he shall suffer one year's imprisonment, and other open corporal punishment, not extending to life or limb[x]. [footnote u: 1 hawk. p.c. 130. lamb. eiren. 127.] [footnote w: f.n.b. 168.] [footnote x: stat. 5 eliz. c. 4.] by service all servants and labourers, except apprentices, become entitled to wages: according to their agreement, if menial servants; or according to the appointment of the sheriff or sessions, if labourers or servants in husbandry: for the statutes for regulation of wages extend to such servants only[y]; it being impossible for any magistrate to be a judge of the employment of menial servants, or of course to assess their wages. [footnote y: 2 jones. 47.] iii. let us, lastly, see how strangers may be affected by this relation of master and servant: or how a master may behave towards others on behalf of his servant; and what a servant may do on behalf of his master. and, first, the master may _maintain_, that is, abet and assist his servant in any action at law against a stranger: whereas, in general, it is an offence against public justice to encourage suits and animosities, by helping to bear the expense of them, and is called in law maintenance[z]. a master also may bring an action against any man for beating or maiming his servant; but in such case he must assign, as a special reason for so doing, his own damage by the loss of his service; and this loss must be proved upon the trial[a]. a master likewise may justify an assault in defence of his servant, and a servant in defence of his master[b]: the master, because he has an interest in his servant, not to be deprived of his service; the servant, because it is part of his duty, for which he receives his wages, to stand by and defend his master[c]. also if any person do hire or retain my servant, being in my service, for which the servant departeth from me and goeth to serve the other, i may have an action for damages against both the new master and the servant, or either of them: but if the new master did not know that he is my servant, no action lies; unless he afterwards refuse to restore him upon information and demand[d]. the reason and foundation upon which all this doctrine is built, seem to be the property that every man has in the service of his domestics; acquired by the contract of hiring, and purchased by giving them wages. [footnote z: 2 roll. abr. 115.] [footnote a: 9 rep. 113.] [footnote b: 2 roll. abr. 546.] [footnote c: in like manner, by the laws of king alfred, c. 38. a servant was allowed to fight for his master, a parent for his child, and a husband or father for the chastity of his wife or daughter.] [footnote d: f.n.b. 167, 168.] as for those things which a servant may do on behalf of his master, they seem all to proceed upon this principle, that the master is answerable for the act of his servant, if done by his command, either expressly given, or implied: _nam qui facit per alium, facit per se_[e]. therefore, if the servant commit a trespass by the command or encouragement of his master, the master shall be guilty of it: not that the servant is excused, for he is only to obey his master in matters that are honest and lawful. if an innkeeper's servants rob his guests, the master is bound to restitution[f]: for as there is a confidence reposed in him, that he will take care to provide honest servants, his negligence is a kind of implied consent to the robbery; _nam, qui non prohibet, cum prohibere possit, jubet_. so likewise if the drawer at a tavern sells a man bad wine, whereby his health is injured, he may bring an action against the master[g]: for, although the master did not expressly order the servant to sell it to that person in particular, yet his permitting him to draw and sell it at all is impliedly a general command. [footnote e: 4 inst. 109.] [footnote f: noy's max. c. 43.] [footnote g: 1 roll. abr. 95.] in the same manner, whatever a servant is permitted to do in the usual course of his business, is equivalent to a general command. if i pay money to a banker's servant, the banker is answerable for it: if i pay it to a clergyman's or a physician's servant, whose usual business it is not to receive money for his master, and he imbezzles it, i must pay it over again. if a steward lets a lease of a farm, without the owner's knowlege, the owner must stand to the bargain; for this is the steward's business. a wife, a friend, a relation, that use to transact business for a man, are _quoad hoc_ his servants; and the principal must answer for their conduct: for the law implies, that they act under a general command; and, without such a doctrine as this, no mutual intercourse between man and man could subsist with any tolerable convenience. if i usually deal with a tradesman by myself, or constantly pay him ready money, i am not answerable for what my servant takes up upon trust; for here is no implied order to the tradesman to trust my servant: but if i usually send him upon trust, or sometimes on trust, and sometimes with ready money, i am answerable for all he takes up; for the tradesman cannot possibly distinguish when he comes by my order, and when upon his own authority[h]. [footnote h: dr & stud. d. 2. c. 42. noy's max. c. 44.] if a servant, lastly, by his negligence does any damage to a stranger, the master shall answer for his neglect: if a smith's servant lames a horse while he is shoing him, an action lies against the master, and not against the servant. but in these cases the damage must be done, while he is actually employed in the master's service; otherwise the servant shall answer for his own misbehaviour. upon this principle, by the common law[i], if a servant kept his master's fire negligently, so that his neighbour's house was burned down thereby, an action lay against the master; because this negligence happened in his service: otherwise, if the servant, going along the street with a torch, by negligence sets fire to a house; for there he is not in his master's immediate service, and must himself answer the damage personally. but now the common law is, in the former case, altered by statute 6 ann. c. 3. which ordains that no action shall be maintained against any, in whose house or chamber any fire shall accidentally begin; for their own loss is sufficient punishment for their own or their servants' carelessness. but if such fire happens through negligence of any servant (whose loss is commonly very little) such servant shall forfeit 100_l_, to be distributed among the sufferers; and, in default of payment, shall be committed to some workhouse and there kept to hard labour for eighteen months[k]. a master is, lastly, chargeable if any of his family layeth or casteth any thing out of his house into the street or common highway, to the damage of any individual, or the common nusance of his majesty's liege people[l]: for the master hath the superintendance and charge of all his houshold. and this also agrees with the civil law[m]; which holds, that the _pater familias_, in this and similar cases, "_ob alterius culpam tenetur, sive servi, sive liberi_." [footnote i: noy's max. c. 44.] [footnote k: upon a similar principle, by the law of the twelve tables at rome, a person by whose negligence any fire began was bound to pay double to the sufferers; or if he was not able to pay, was to suffer a corporal punishment.] [footnote l: noy's max. c. 44.] [footnote m: _ff._ 9. 3. 1. _inst._ 4. 5. 1.] we may observe, that in all the cases here put, the master may be frequently a loser by the trust reposed in his servant, but never can be a gainer: he may frequently be answerable for his servant's misbehaviour, but never can shelter himself from punishment by laying the blame on his agent. the reason of this is still uniform and the same; that the wrong done by the servant is looked upon in law as the wrong of the master himself; and it is a standing maxim, that no man shall be allowed to make any advantage of his own wrong. chapter the fifteenth. of husband and wife. the second private relation of persons is that of marriage, which includes the reciprocal duties of husband and wife; or, as most of our elder law books call them, of _baron_ and _feme_. in the consideration of which i shall in the first place enquire, how marriages may be contracted or made; shall next point out the manner in which they may be dissolved; and shall, lastly, take a view of the legal effects and consequence of marriage. i. our law considers marriage in no other light than as a civil contract. the _holiness_ of the matrimonial state is left entirely to the ecclesiastical law: the temporal courts not having jurisdiction to consider unlawful marriages as a sin, but merely as a civil inconvenience. the punishment therefore, or annulling, of incestuous or other unscriptural marriages, is the province of the spiritual courts; which act _pro salute animae_[a]. and, taking it in this civil light, the law treats it as it does all other contracts; allowing it to be good and valid in all cases, where the parties at the time of making it were, in the first place, _willing_ to contract; secondly, _able_ to contract; and, lastly, actually _did_ contract, in the proper forms and solemnities required by law. [footnote a: salk. 121.] first, they must be _willing_ to contract. "_consensus, non concubitus, facit nuptias_," is the maxim of the civil law in this case[b]: and it is adopted by the common lawyers[c], who indeed have borrowed (especially in antient times) almost all their notions of the legitimacy of marriage from the canon and civil laws. [footnote b: _ff._ 50. 17. 30.] [footnote c: co. litt. 33.] secondly, they must be _able_ to contract. in general, all persons are able to contract themselves in marriage, unless they labour under some particular disabilities, and incapacities. what those are, it will here be our business to enquire. now these disabilities are of two sorts: first, such as are canonical, and therefore sufficient by the ecclesiastical laws to avoid the marriage in the spiritual court; but these in our law only make the marriage voidable, and not _ipso facto_ void, until sentence of nullity be obtained. of this nature are pre-contract; consanguinity, or relation by blood; and affinity, or relation by marriage; and some particular corporal infirmities. and these canonical disabilities are either grounded upon the express words of the divine law, or are consequences plainly deducible from thence: it therefore being sinful in the persons, who labour under them, to attempt to contract matrimony together, they are properly the object of the ecclesiastical magistrate's coercion; in order to separate the offenders, and inflict penance for the offence, _pro salute animarum_. but such marriages not being void _ab initio_, but voidable only by sentence of separation, they are esteemed valid to all civil purposes, unless such separation is actually made during the life of the parties. for, after the death of either of them, the courts of common law will not suffer the spiritual court to declare such marriages to have been void; because such declaration cannot now tend to the reformation of the parties[d]. and therefore when a man had married his first wife's sister, and after her death the bishop's court was proceeding to annul the marriage and bastardize the issue, the court of king's bench granted a prohibition _quoad hoc_; but permitted them to proceed to punish the husband for incest[e]. these canonical disabilities, being entirely the province of the ecclesiastical courts, our books are perfectly silent concerning them. but there are a few statutes, which serve as directories to those courts, of which it will be proper to take notice. by statute 32 hen. viii. c. 38. it is declared, that all persons may lawfully marry, but such as are prohibited by god's law; and that all marriages contracted by lawful persons in the face of the church, and consummate with bodily knowlege, and fruit of children, shall be indissoluble. and (because in the times of popery a great variety of degrees of kindred were made impediments to marriage, which impediments might however be bought off for money) it is declared by the same statute, that nothing (god's law except) shall impeach any marriage, but within the levitical degrees; the farthest of which is that between uncle and niece[f]. by the same statute all impediments, arising from pre-contracts to other persons, were abolished and declared of none effect, unless they had been consummated with bodily knowlege: in which case the canon law holds such contract to be a marriage _de facto_. but this branch of the statute was repealed by statute 2 & 3 edw. vi. c. 23. how far the act of 26 geo. ii. c. 33. (which prohibits all suits in ecclesiastical courts to compel a marriage, in consequence of any contract) may collaterally extend to revive this clause of henry viii's statute, and abolish the impediment of pre-contract, i leave to be considered by the canonists. [footnote d: _ibid._] [footnote e: salk. 548.] [footnote f: gilb. rep. 158.] the other sort of disabilities are those which are created, or at least enforced, by the municipal laws. and, though some of them may be grounded on natural law, yet they are regarded by the laws of the land, not so much in the light of any moral offence, as on account of the civil inconveniences they draw after them. these civil disabilities make the contract void _ab initio_, and not merely voidable: not that they dissolve a contract already formed, but they render the parties incapable of forming any contract at all: they do not put asunder those who are joined together, but they previously hinder the junction. and, if any persons under these legal incapacities come together, it is a meretricious, and not a matrimonial, union. 1. the first of these legal disabilities is a prior marriage, or having another husband or wife living; in which case, besides the penalties consequent upon it as a felony, the second marriage is to all intents and purposes void[g]: polygamy being condemned both by the law of the new testament, and the policy of all prudent states, especially in these northern climates. and justinian, even in the climate of modern turkey, is express[h], that "_duas uxores eodem tempore habere non licet_." [footnote g: bro. abr. _tit. bastardy._ pl. 8.] [footnote h: _inst._ 1. 10. 6.] 2. the next legal disability is want of age. this is sufficient to avoid all other contracts, on account of the imbecillity of judgment in the parties contracting; _a fortiori_ therefore it ought to avoid this, the most important contract of any. therefore if a boy under fourteen, or a girl under twelve years of age, marries, this marriage is only inchoate and imperfect; and, when either of them comes to the age of consent aforesaid, they may disagree and declare the marriage void, without any divorce or sentence in the spiritual court. this is founded on the civil law[i]. but the canon law pays a greater regard to the constitution, than the age, of the parties[k]: for if they are _habiles ad matrimonium_, it is a good marriage, whatever their age may be. and in our law it is so far a marriage, that, if at the age of consent they agree to continue together, they need not be married again[l]. if the husband be of years of discretion, and the wife under twelve, when she comes to years of discretion he may disagree as well as she may: for in contracts the obligation must be mutual; both must be bound, or neither: and so it is, _vice versa_, when the wife is of years of discretion, and the husband under[m]. [footnote i: _leon. constit._ 109.] [footnote k: _decretal._ _l._ 4. _tit._ 2. _qu._ 3.] [footnote l: co. litt. 79.] [footnote m: _ibid._] 3. another incapacity arises from want of consent of parents or guardians. by the common law, if the parties themselves were of the age of consent, there wanted no other concurrence to make the marriage valid: and this was agreeable to the canon law. but, by several statutes[n], penalties of 100_l._ are laid on every clergyman who marries a couple either without publication of banns (which may give notice to parents or guardians) or without a licence, to obtain which the consent of parents or guardians must be sworn to. and by the statute 4 & 5 ph. & m. c. 8. whosoever marries any woman child under the age of sixteen years, without consent of parents or guardians, shall be subject to fine, or five years imprisonment: and her estate during the husband's life shall go to and be enjoyed by the next heir. the civil law indeed required the consent of the parent or tutor at all ages; unless the children were emancipated, or out of the parents power[o]: and, if such consent from the father was wanting, the marriage was null, and the children illegitimate[p]; but the consent of the mother or guardians, if unreasonably withheld, might be redressed and supplied by the judge, or the president of the province[q]: and if the father was _non compos_, a similar remedy was given[r]. these provisions are adopted and imitated by the french and hollanders, with this difference: that in france the sons cannot marry without consent of parents till thirty years of age, nor the daughters till twenty five[s]; and in holland, the sons are at their own disposal at twenty five, and the daughters at twenty[t]. thus hath stood, and thus at present stands, the law in other neighbouring countries. and it has been lately thought proper to introduce somewhat of the same policy into our laws, by statute 26 geo. ii. c. 33. whereby it is enacted, that all marriages celebrated by licence (for banns suppose notice) where either of the parties is under twenty one, (not being a widow or widower, who are supposed emancipated) without the consent of the father, or, if he be not living, of the mother or guardians, shall be absolutely void. a like provision is made as in the civil law, where the mother or guardian is _non compos_, beyond sea, or unreasonably froward, to dispense with such consent at the discretion of the lord chancellor: but no provision is made, in case the father should labour under any mental or other incapacity. much may be, and much has been, said both for and against this innovation upon our antient laws and constitution. on the one hand, it prevents the clandestine marriages of minors, which are often a terrible inconvenience to those private families wherein they happen. on the other hand, restraints upon marriage, especially among the lower class, are evidently detrimental to the public, by hindering the encrease of people; and to religion and morality, by encouraging licentiousness and debauchery among the single of both sexes; and thereby destroying one end of society and government, which is, _concubitu prohibere vago_. and of this last inconvenience the roman laws were so sensible, that at the same time that they forbad marriage without the consent of parents or guardians, they were less rigorous upon that very account with regard to other restraints: for, if a parent did not provide a husband for his daughter, by the time she arrived at the age of twenty five, and she afterwards made a slip in her conduct, he was not allowed to disinherit her upon that account; "_quia non sua culpa, sed parentum, id commisisse cognoscitur_[u]." [footnote n: 6 & 7 w. iii. c. 6. 7 & 8 w. iii. c. 35. 10 ann. c. 19.] [footnote o: _ff._ 23. 2. 2, & 18.] [footnote p: _ff._ 1. 5. 11.] [footnote q: _cod._ 5. 4. 1, & 20.] [footnote r: _inst._ 1. 10. 1.] [footnote s: domat, of dowries â§. 2. montesq. sp. l. 23. 7.] [footnote t: _vinnius in inst._ _l._ 1. _t._ 10.] [footnote u: _nov._ 115. â§. 11.] 4. a fourth incapacity is want of reason; without a competent share of which, as no other, so neither can the matrimonial contract, be valid. idiots and lunatics, by the old common law, might have married[w]; wherein it was manifestly defective. the civil law judged much more sensibly, when it made such deprivations of reason a previous impediment; though not a cause of divorce, if they happened after marriage[x]. this defect in our laws is however remedied with regard to lunatics, and persons under frenzies, by the express words of the statute 15 geo. ii. c. 30. and idiots, if not within the letter of the statute, are at least within the reason of it. [footnote w: 1 roll. abr. 357.] [footnote x: _ff._ 23. _tit._ 1. _l._ 8. & _tit._ 2. _l._ 16.] lastly, the parties must not only be willing, and able, to contract, but actually must contract themselves in due form of law, to make it a good civil marriage. any contract made, _per verba de praesenti_, or in words of the present tense, and in case of cohabitation _per verba de futuro_ also, between persons able to contract, was before the late act deemed a valid marriage to many purposes; and the parties might be compelled in the spiritual courts to celebrate it _in facie ecclesiae_. but these verbal contracts are now of no force, to compel a future marriage[y]. neither is any marriage at present valid, that is not celebrated in some parish church or public chapel, unless by dispensation from the arch-bishop of canterbury. it must also be preceded by publication of banns, or by licence from the spiritual judge. many other formalities are likewise prescribed by the act; the neglect of which, though penal, does not invalidate the marriage. it is held to be also essential to a marriage, that it be performed by a person in orders[z]; though the intervention of a priest to solemnize this contract is merely _juris positivi_, and not _juris naturalis aut divini_: it being said that pope innocent the third was the first who ordained the celebration of marriage in the church[a]; before which it was totally a civil contract. and, in the times of the grand rebellion, all marriages were performed by the justices of the peace; and these marriages were declared valid, without any fresh solemnization, by statute 12 car. ii. c. 33. but, as the law now stands, we may upon the whole collect, that no marriage by the temporal law is _ipso facto_ void, that is celebrated by a person in orders,--in a parish church or public chapel (or elsewhere, by special dispensation)--in pursuance of banns or a licence,--between single persons,--consenting,--of sound mind,--and of the age of twenty one years;--or of the age of fourteen in males and twelve in females, with consent of parents or guardians, or without it, in case of widowhood. and no marriage is _voidable_ by the ecclesiastical law, after the death of either of the parties; nor during their lives, unless for the canonical impediments of pre-contract, if that indeed still exists; of consanguinity; and of affinity, or corporal imbecillity, subsisting previous to the marriage. [footnote y: stat. 26 geo. ii. c. 33.] [footnote z: salk. 119.] [footnote a: moor 170.] ii. i am next to consider the manner in which marriages may be dissolved; and this is either by death, or divorce. there are two kinds of divorce, the one total, the other partial; the one _a vinculo matrimonii_, the other merely _a mensa et thoro_. the total divorce, _a vinculo matrimonii_, must be for some of the canonical causes of impediment before-mentioned; and those, existing _before_ the marriage, as is always the case in consanguinity; not supervenient, or arising _afterwards_, as may be the case in affinity or corporal imbecillity. for in cases of total divorce, the marriage is declared null, as having been absolutely unlawful _ab initio_; and the parties are therefore separated _pro salute animarum_: for which reason, as was before observed, no divorce can be obtained, but during the life of the parties. the issue of such marriage, as is thus entirely dissolved, are bastards[b]. [footnote b: co. litt. 235.] divorce _a mensa et thoro_ is when the marriage is just and lawful _ab initio_, and therefore the law is tender of dissolving it; but, for some supervenient cause, it becomes improper or impossible for the parties to live together: as in the case of intolerable ill temper, or adultery, in either of the parties. for the canon law, which the common law follows in this case, deems so highly and with such mysterious reverence of the nuptial tie, that it will not allow it to be unloosed for any cause whatsoever, that arises after the union is made. and this is said to be built on the divine revealed law; though that expressly assigns incontinence as a cause, and indeed the only cause, why a man may put away his wife and marry another[c]. the civil law, which is partly of pagan original, allows many causes of absolute divorce; and some of them pretty severe ones, (as if a wife goes to the theatre or the public games, without the knowlege and consent of the husband[d]) but among them adultery is the principal, and with reason named the first[e]. but with us in england adultery is only a cause of separation from bed and board[f]: for which the best reason that can be given, is, that if divorces were allowed to depend upon a matter within the power of either the parties, they would probably be extremely frequent; as was the case when divorces were allowed for canonical disabilities, on the mere confession of the parties[g], which is now prohibited by the canons[h]. however, divorces _a vinculo matrimonii_, for adultery, have of late years been frequently granted by act of parliament. [footnote c: matt. xix. 9.] [footnote d: _nov._ 117.] [footnote e: _cod._ 5. 17. 8.] [footnote f: moor 683.] [footnote g: 2 mod. 314.] [footnote h: can. 1603 c. 105.] in case of divorce _a mensa et thoro_, the law allows alimony to the wife; which is that allowance, which is made to a woman for her support out of the husband's estate; being settled at the discretion of the ecclesiastical judge, on consideration of all the circumstances of the case. this is sometimes called her _estovers_; for which, if he refuses payment, there is (besides the ordinary process of excommunication) a writ at common law _de estoveriis habendis_, in order to recover it[i]. it is generally proportioned to the rank and quality of the parties. but in case of elopement, and living with an adulterer, the law allows her no alimony[k]. [footnote i: 1 lev. 6.] [footnote k: cowel. tit. alimony.] iii. having thus shewn how marriages may be made, or dissolved, i come now, lastly, to speak of the legal consequences of such making, or dissolution. by marriage, the husband and wife are one person in law[l]: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and _cover_, she performs every thing; and is therefore called in our law-french a _feme-covert_; is said to be _covert-baron_, or under the protection and influence of her husband, her _baron_, or lord; and her condition during her marriage is called her _coverture_. upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. i speak not at present of the rights of property, but of such as are merely _personal_. for this reason, a man cannot grant any thing to his wife, or enter into covenant with her[m]: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage[n]. a woman indeed may be attorney for her husband[o]; for that implies no separation from, but is rather a representation of, her lord. and a husband may also bequeath any thing to his wife by will; for that cannot take effect till the coverture is determined by his death[p]. the husband is bound to provide his wife with necessaries by law, as much as himself; and if she contracts debts for them, he is obliged to pay them[q]: but for any thing besides necessaries, he is not chargeable[r]. also if a wife elopes, and lives with another man, the husband is not chargeable even for necessaries[s]; at least if the person, who furnishes them, is sufficiently apprized of her elopement[t]. if the wife be indebted before marriage, the husband is bound afterwards to pay the debt; for he has adopted her and her circumstances together[u]. if the wife be injured in her person or her property, she can bring no action for redress without her husband's concurrence, and in his name, as well as her own[w]: neither can she be sued, without making the husband a defendant[x]. there is indeed one case where the wife shall sue and be sued as a feme sole, viz. where the husband has abjured the realm, or is banished[y]: for then he is dead in law; and, the husband being thus disabled to sue for or defend the wife, it would be most unreasonable if she had no remedy, or could make no defence at all. in criminal prosecutions, it is true, the wife may be indicted and punished separately[z]; for the union is only a civil union. but, in trials of any sort, they are not allowed to be evidence for, or against, each other[a]: partly because it is impossible their testimony should be indifferent; but principally because of the union of person: and therefore, if they were admitted to be witnesses _for_ each other, they would contradict one maxim of law, "_nemo in propria causa testis esse debet_;" and if _against_ each other, they would contradict another maxim, "_nemo tenetur seipsum accusare_." but where the offence is directly against the person of the wife, this rule has been usually dispensed with[b]: and therefore, by statute 3 hen. vii. c. 2. in case a woman be forcibly taken away, and married, she may be a witness against such her husband, in order to convict him of felony. for in this case she can with no propriety be reckoned his wife; because a main ingredient, her consent, was wanting to the contract: and also there is another maxim of law, that no man shall take advantage of his own wrong; which the ravisher here would do, if by forcibly marrying a woman, he could prevent her from being a witness, who is perhaps the only witness, to that very fact. [footnote l: co. litt. 112.] [footnote m: _ibid._] [footnote n: cro. car. 551.] [footnote o: f.n.b. 27.] [footnote p: co. litt. 112.] [footnote q: salk. 118.] [footnote r: 1 sid. 120.] [footnote s: stra. 647.] [footnote t: 1 lev. 5.] [footnote u: 3 mod. 186.] [footnote w: salk. 119. 1 roll. abr. 347.] [footnote x: 1 leon. 312. this was also the practice in the courts of athens. (pott. antiqu. b. 1. c. 21.)] [footnote y: co. litt. 133.] [footnote z: 1 hawk. p.c. 3.] [footnote a: 2 haw. p.c. 431.] [footnote b: state trials, vol. 1. lord audley's case. stra. 633.] in the civil law the husband and wife are considered as two distinct persons; and may have separate estates, contracts, debts, and injuries[c]: and therefore, in our ecclesiastical courts, a woman may sue and be sued without her husband[d]. [footnote c: _cod._ 4. 12. 1.] [footnote d: 2 roll. abr. 298.] but, though our law in general considers man and wife as one person, yet there are some instances in which she is separately considered; as inferior to him, and acting by his compulsion. and therefore all deeds executed, and acts done, by her, during her coverture, are void, or at least voidable; except it be a fine, or the like matter of record, in which case she must be solely and secretly examined, to learn if her act be voluntary[e]. she cannot by will devise lands to her husband, unless under special circumstances; for at the time of making it she is supposed to be under his coercion[f]. and in some felonies, and other inferior crimes, committed by her, through constraint of her husband, the law excuses her[g]: but this extends not to treason or murder. [footnote e: litt. â§. 669, 670.] [footnote f: co. litt. 112.] [footnote g: 1 hawk. p.c. 2.] the husband also (by the old law) might give his wife moderate correction[h]. for, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his servants or children; for whom the master or parent is also liable in some cases to answer. but this power of correction was confined within reasonable bounds[i]; and the husband was prohibited to use any violence to his wife, _aliter quam ad virum, ex causa regiminis et castigationis uxoris suae, licite et rationabiliter pertinet_[k]. the civil law gave the husband the same, or a larger, authority over his wife; allowing him, for some misdemesnors, _flagellis et fustibus acriter verberare uxorem_; for others, only _modicam castigationem adhibere_[l]. but, with us, in the politer reign of charles the second, this power of correction began to be doubted[m]: and a wife may now have security of the peace against her husband[n]; or, in return, a husband against his wife[o]. yet the lower rank of people, who were always fond of the old common law, still claim and exert their antient privilege: and the courts of law will still permit a husband to restrain a wife of her liberty, in case of any gross misbehaviour[p]. [footnote h: _ibid._ 130.] [footnote i: moor. 874.] [footnote k: f.n.b. 80.] [footnote l: _nov._ 117. _c._ 14. & van leeuwen _in loc._] [footnote m: 1 sid. 113. 3 keb. 433.] [footnote n: 2 lev. 128.] [footnote o: stra. 1207.] [footnote p: stra. 478. 875.] these are the chief legal effects of marriage during the coverture; upon which we may observe, that even the disabilities, which the wife lies under, are for the most part intended for her protection and benefit. so great a favourite is the female sex of the laws of england. chapter the sixteenth. of parent and child. the next, and the most universal relation in nature, is immediately derived from the preceding, being that between parent and child. children are of two sorts; legitimate, and spurious, or bastards: each of which we shall consider in their order; and first of legitimate children. i. a legitimate child is he that is born in lawful wedlock, or within a competent time afterwards. "_pater est quem nuptiae demonstrant_," is the rule of the civil law[a]; and this holds with the civilians, whether the nuptials happen before, or after, the birth of the child. with us in england the rule is narrowed, for the nuptials must be precedent to the birth; of which more will be said when we come to consider the case of bastardy. at present let us enquire into, 1. the legal duties of parents to their legitimate children. 2. their power over them. 3. the duties of such children to their parents. [footnote a: _ff._ 2. 4. 5.] 1. and, first, the duties of parents to legitimate children: which principally consist in three particulars; their maintenance, their protection, and their education. the duty of parents to provide for the _maintenance_ of their children is a principle of natural law; an obligation, says puffendorf[b], laid on them not only by nature herself, but by their own proper act, in bringing them into the world: for they would be in the highest manner injurious to their issue, if they only gave the children life, that they might afterwards see them perish. by begetting them therefore they have entered into a voluntary obligation, to endeavour, as far as in them lies, that the life which they have bestowed shall be supported and preserved. and thus the children will have a perfect _right_ of receiving maintenance from their parents. and the president montesquieu[c] has a very just observation upon this head: that the establishment of marriage in all civilized states is built on this natural obligation of the father to provide for his children; for that ascertains and makes known the person who is bound to fulfil this obligation: whereas, in promiscuous and illicit conjunctions, the father is unknown; and the mother finds a thousand obstacles in her way;--shame, remorse, the constraint of her sex, and the rigor of laws;--that stifle her inclinations to perform this duty: and besides, she generally wants ability. [footnote b: l. of n. l. 4. c. 11.] [footnote c: sp. l. l. 23. c. 2.] the municipal laws of all well-regulated states have taken care to enforce this duty: though providence has done it more effectually than any laws, by implanting in the breast of every parent that natural [greek: storgãª], or insuperable degree of affection, which not even the deformity of person or mind, not even the wickedness, ingratitude, and rebellion of children, can totally suppress or extinguish. the civil law[d] obliges the parent to provide maintenance for his child; and, if he refuses, "_judex de ea re cognoscet_." nay, it carries this matter so far, that it will not suffer a parent at his death totally to disinherit his child, without expressly giving his reason for so doing; and there are fourteen such reasons reckoned up[e], which may justify such disinherison. if the parent alleged no reason, or a bad, or false one, the child might set the will aside, _tanquam testamentum inofficiosum_, a testament contrary to the natural duty of the parent. and it is remarkable under what colour the children were to move for relief in such a case: by suggesting that the parent had lost the use of his reason, when he made the _inofficious_ testament. and this, as puffendorf observes[f], was not to bring into dispute the testator's power of disinheriting his own offspring; but to examine the motives upon which he did it: and, if they were found defective in reason, then to set them aside. but perhaps this is going rather too far: every man has, or ought to have, by the laws of society, a power over his own property: and, as grotius very well distinguishes[g], natural right obliges to give a _necessary_ maintenance to children; but what is more than that, they have no other right to, than as it is given them by the favour of their parents, or the positive constitutions of the municipal law. [footnote d: _ff._ 25. 3. 5.] [footnote e: _nov._ 115.] [footnote f: _l._ 4. _c._ 11. â§. 7.] [footnote g: _de j.b. & p._ _l._ 2. _c._ 7. _n._ 3.] let us next see what provision our own laws have made for this natural duty. it is a principle of law[h], that there is an obligation on every man to provide for those descended from his loins: and the manner, in which this obligation shall be performed, is thus pointed out[i]. the father, and mother, grandfather, and grandmother of poor impotent persons shall maintain them at their own charges, if of sufficient ability, according as the quarter sessions shall direct: and[k] if a parent runs away, and leaves his children, the churchwardens and overseers of the parish shall seise his rents, goods, and chattels, and dispose of them towards their relief. by the interpretations which the courts of law have made upon these statutes, if a mother or grandmother marries again, and was before such second marriage of sufficient ability to keep the child, the husband shall be charged to maintain it[l]: for this being a debt of hers, when single, shall like others extend to charge the husband. but at her death, the relation being dissolved, the husband is under no farther obligation. [footnote h: raym. 500.] [footnote i: stat. 43 eliz. c. 2.] [footnote k: stat. 5 geo. i. c. 8.] [footnote l: styles. 283. 2 bulstr. 346.] no person is bound to provide a maintenance for his issue, unless where the children are impotent and unable to work, either through infancy, disease, or accident; and then is only obliged to find them with necessaries, the penalty on refusal being no more than 20_s._ a month. for the policy of our laws, which are ever watchful to promote industry, did not mean to compel a father to maintain his idle and lazy children in ease and indolence: but thought it unjust to oblige the parent, against his will, to provide them with superfluities, and other indulgences of fortune; imagining they might trust to the impulse of nature, if the children were deserving of such favours. yet, as nothing is so apt to stifle the calls of nature as religious bigotry, it is enacted[m], that if any popish parent shall refuse to allow his protestant child a fitting maintenance, with a view to compel him to change his religion, the lord chancellor shall by order of court constrain him to do what is just and reasonable. but this did not extend to persons of another religion, of no less bitterness and bigotry than the popish: and therefore in the very next year we find an instance of a jew of immense riches, whose only daughter having embraced christianity, he turned her out of doors; and on her application for relief, it was held she was intitled to none[n]. but this gave occasion[o] to another statute[p], which ordains, that if jewish parents refuse to allow their protestant children a fitting maintenance, suitable to the fortune of the parent, the lord chancellor on complaint may make such order therein as he shall see proper. [footnote m: stat. 11 & 12 w. iii. c. 4.] [footnote n: lord raym. 699.] [footnote o: com. journ. 18 feb. 12 mar. 1701.] [footnote p: 1 ann. st. 1. c. 30.] our law has made no provision to prevent the disinheriting of children by will; leaving every man's property in his own disposal, upon a principle of liberty in this, as well as every other, action: though perhaps it had not been amiss, if the parent had been bound to leave them at the least a necessary subsistence. by the custom of london indeed, (which was formerly universal throughout the kingdom) the children of freemen are entitled to one third of their father's effects, to be equally divided among them; of which he cannot deprive them. and, among persons of any rank or fortune, a competence is generally provided for younger children, and the bulk of the estate settled upon the eldest, by the marriage-articles. heirs also, and children, are favourites of our courts of justice, and cannot be disinherited by any dubious or ambiguous words; there being required the utmost certainty of the testator's intentions to take away the right of an heir[q]. [footnote q: 1 lev. 130.] from the duty of maintenance we may easily pass to that of _protection_; which is also a natural duty, but rather permitted than enjoined by any municipal laws: nature, in this respect, working so strongly as to need rather a check than a spur. a parent may, by our laws, maintain and uphold his children in their lawsuits, without being guilty of the legal crime of maintaining quarrels[r]. a parent may also justify an assault and battery in defence of the persons of his children[s]: nay, where a man's son was beaten by another boy, and the father went near a mile to find him, and there revenged his son's quarrel by beating the other boy, of which beating he afterwards died; it was not held to be murder, but manslaughter merely[t]. such indulgence does the law shew to the frailty of human nature, and the workings of parental affection. [footnote r: 2 inst. 564.] [footnote s: 1 hawk. p.c. 131.] [footnote t: cro. jac. 296. 1 hawk. p.c. 83.] the last duty of parents to their children is that of giving them an _education_ suitable to their station in life: a duty pointed out by reason, and of far the greatest importance of any. for, as puffendorf very well observes[u], it is not easy to imagine or allow, that a parent has conferred any considerable benefit upon his child, by bringing him into the world; if he afterwards entirely neglects his culture and education, and suffers him to grow up like a mere beast, to lead a life useless to others, and shameful to himself. yet the municipal laws of most countries seem to be defective in this point, by not constraining the parent to bestow a proper education upon his children. perhaps they thought it punishment enough to leave the parent, who neglects the instruction of his family, to labour under those griefs and inconveniences, which his family, so uninstructed, will be sure to bring upon him. our laws, though their defects in this particular cannot be denied, have in one instance made a wise provision for breeding up the rising generation; since the poor and laborious part of the community, when past the age of nurture, are taken out of the hands of their parents, by the statutes for apprenticing poor children[w]; and are placed out by the public in such a manner, as may render their abilities, in their several stations, of the greatest advantage to the commonwealth. the rich indeed are left at their own option, whether they will breed up their children to be ornaments or disgraces to their family. yet in one case, that of religion, they are under peculiar restrictions: for[x] it is provided, that if any person sends any child under his government beyond the seas, either to prevent it's good education in england, or in order to enter into or reside in any popish college, or to be instructed, persuaded, or strengthened in the popish religion; in such case, besides the disabilities incurred by the child so sent, the parent or person sending shall forfeit 100_l._ which[y] shall go to the sole use and benefit of him that shall discover the offence. and[z] if any parent, or other, shall send or convey any person beyond sea, to enter into, or be resident in, or trained up in, any priory, abbey, nunnery, popish university, college, or school, or house of jesuits, or priests, or in any private popish family, in order to be instructed, persuaded, or confirmed in the popish religion; or shall contribute any thing towards their maintenance when abroad by any pretext whatever, the person both sending and sent shall be disabled to sue in law or equity, or to be executor or administrator to any person, or to enjoy any legacy or deed of gift, or to bear any office in the realm, and shall forfeit all his goods and chattels, and likewise all his real estate for life. [footnote u: l. of n. b. 6. c. 2. â§. 12.] [footnote w: see page 414.] [footnote x: stat. 1 jac. i. c. 4. & 3 jac. i. c. 5.] [footnote y: stat. 11 & 12 w. iii. c. 4.] [footnote z: stat. 3 car. i. c. 2.] 2. the _power_ of parents over their children is derived from the former consideration, their duty; this authority being given them, partly to enable the parent more effectually to perform his duty, and partly as a recompence for his care and trouble in the faithful discharge of it. and upon this score the municipal laws of some nations have given a much larger authority to the parents, than others. the antient roman laws gave the father a power of life and death over his children; upon this principle, that he who gave had also the power of taking away[a]. but the rigor of these laws was softened by subsequent constitutions; so that[b] we find a father banished by the emperor hadrian for killing his son, though he had committed a very heinous crime, upon this maxim, that "_patria potestas in pietate debet, non in atrocitate, consistere_." but still they maintained to the last a very large and absolute authority: for a son could not acquire any property of his own during the life of his father; but all his acquisitions belonged to the father, or at least the profits of them for his life[c]. [footnote a: _ff._ 28. 2. 11. _cod._ 8. 47. 10.] [footnote b: _ff._ 48. 9. 5.] [footnote c: _inst._ 2. 9. 1.] the power of a parent by our english laws is much more moderate; but still sufficient to keep the child in order and obedience. he may lawfully correct his child, being under age, in a reasonable manner[d]; for this is for the benefit of his education. the consent or concurrence of the parent to the marriage of his child under age, was also _directed_ by our antient law to be obtained: but now it is absolutely _necessary_; for without it the contract is void[e]. and this also is another means, which the law has put into the parent's hands, in order the better to discharge his duty; first, of protecting his children from the snares of artful and designing persons; and, next, of settling them properly in life, by preventing the ill consequences of too early and precipitate marriages. a father has no other power over his sons _estate_, than as his trustee or guardian; for, though he may receive the profits during the child's minority, yet he must account for them when he comes of age. he may indeed have the benefit of his children's labour while they live with him, and are maintained by him: but this is no more than he is entitled to from his apprentices or servants. the legal power of a father (for a mother, as such, is entitled to no power, but only to reverence and respect) the power of a father, i say, over the persons of his children ceases at the age of twenty one: for they are then enfranchised by arriving at years of discretion, or that point which the law has established (as some must necessarily be established) when the empire of the father, or other guardian, gives place to the empire of reason. yet, till that age arrives, this empire of the father continues even after his death; for he may by his will appoint a guardian to his children. he may also delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then _in loco parentis_, and has such a portion of the power of the parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed. [footnote d: 1 hawk. p.c. 130.] [footnote e: stat. 26 geo. ii. c. 33.] 3. the _duties_ of children to their parents arise from a principle of natural justice and retribution. for to those, who gave us existence, we naturally owe subjection and obedience during our minority, and honour and reverence ever after; they, who protected the weakness of our infancy, are entitled to our protection in the infirmity of their age; they who by sustenance and education have enabled their offspring to prosper, ought in return to be supported by that offspring, in case they stand in need of assistance. upon this principle proceed all the duties of children to their parents, which are enjoined by positive laws. and the athenian laws[f] carried this principle into practice with a scrupulous kind of nicety: obliging all children to provide for their father, when fallen into poverty; with an exception to spurious children, to those whose chastity had been prostituted by consent of the father, and to those whom he had not put in any way of gaining a livelyhood. the legislature, says baron montesquieu[g], considered, that in the first case the father, being uncertain, had rendered the natural obligation precarious; that, in the second case, he had sullied the life he had given, and done his children the greatest of injuries, in depriving them of their reputation; and that, in the third case, he had rendered their life (so far as in him lay) an insupportable burthen, by furnishing them with no means of subsistence. [footnote f: potter's antiq. b. 4. c. 15.] [footnote g: sp. l. l. 26. c. 5.] our laws agree with those of athens with regard to the first only of these particulars, the case of spurious issue. in the other cases the law does not hold the tie of nature to be dissolved by any misbehaviour of the parent; and therefore a child is equally justifiable in defending the person, or maintaining the cause or suit, of a bad parent, as a good one; and is equally compellable[h], if of sufficient ability, to maintain and provide for a wicked and unnatural progenitor, as for one who has shewn the greatest tenderness and parental piety. [footnote h: stat. 43 eliz. c. 2.] ii. we are next to consider the case of illegitimate children, or bastards; with regard to whom let us inquire, 1. who are bastards. 2. the legal duties of the parents towards a bastard child. 3. the rights and incapacities attending such bastard children. 1. who are bastards. a bastard, by our english laws, is one that is not only begotten, but born, out of lawful matrimony. the civil and canon laws do not allow a child to remain a bastard, if the parents afterwards intermarry[i]: and herein they differ most materially from our law; which, though not so strict as to require that the child shall be _begotten_, yet makes it an indispensable condition that it shall be _born_, after lawful wedlock. and the reason of our english law is surely much superior to that of the roman, if we consider the principal end and design of establishing the contract of marriage, taken in a civil light; abstractedly from any religious view, which has nothing to do with the legitimacy or illegitimacy of the children. the main end and design of marriage therefore being to ascertain and fix upon some certain person, to whom the care, the protection, the maintenance, and the education of the children should belong; this end is undoubtedly better answered by legitimating all issue born after wedlock, than by legitimating all issue of the same parties, even born before wedlock, so as wedlock afterwards ensues: 1. because of the very great uncertainty there will generally be, in the proof that the issue was really begotten by the same man; whereas, by confining the proof to the birth, and not to the begetting, our law has rendered it perfectly certain, what child is legitimate, and who is to take care of the child. 2. because by the roman laws a child may be continued a bastard, or made legitimate, at the option of the father and mother, by a marriage _ex post facto_; thereby opening a door to many frauds and partialities, which by our law are prevented. 3. because by those laws a man may remain a bastard till forty years of age, and then become legitimate, by the subsequent marriage of his parents; whereby the main end of marriage, the protection of infants, is totally frustrated. 4. because this rule of the roman laws admits of no limitations as to the time, or number, of bastards so to be legitimated; but a dozen of them may, twenty years after their birth, by the subsequent marriage of their parents, be admitted to all the privileges of legitimate children. this is plainly a great discouragement to the matrimonial state; to which one main inducement is usually not only the desire of having _children_, but also the desire of procreating lawful _heirs_. whereas our constitutions guard against this indecency, and at the same time give sufficient allowance to the frailties of human nature. for, if a child be begotten while the parents are single, and they will endeavour to make an early reparation for the offence, by marrying within a few months after, our law is so indulgent as not to bastardize the child, if it be born, though not begotten, in lawful wedlock: for this is an incident that can happen but once; since all future children will be begotten, as well as born, within the rules of honour and civil society. upon reasons like these we may suppose the peers to have acted at the parliament of merton, when they refused to enact that children born before marriage should be esteemed legitimate[k]. [footnote i: _inst._ 1. 10. 13. _decretal._ _l._ 4. _t._ 17. _c._ 1.] [footnote k: _rogaverunt omnes episcopi magnates, ut consentirent quod nati ante matrimonium essent legitimi, sicut illi qui nati sunt post matrimonium, quia ecclesia tales habet pro legitimis. et omnes comites et barones una voce responderunt, quod nolunt leges angliae mutare, quae hucusque usitatae sunt et approbatae._ stat. 20 hen. iii. c. 9. see the introduction to the great charter, _edit. oxon._ 1759. _sub anno_ 1253.] from what has been said it appears, that all children born before matrimony are bastards by our law; and so it is of all children born so long after the death of the husband, that, by the usual course of gestation, they could not be begotten by him. but, this being a matter of some uncertainty, the law is not exact as to a few days[l]. and this gives occasion to a proceeding at common law, where a widow is suspected to feign herself with child, in order to produce a supposititious heir to the estate: an attempt which the rigor of the gothic constitutions esteemed equivalent to the most atrocious theft, and therefore punished with death[m]. in this case with us the heir presumptive may have a writ _de ventre inspiciendo_, to examine whether she be with child, or not[n]; which is entirely conformable to the practice of the civil law[o]: and, if the widow be upon due examination found not pregnant, any issue she may afterwards produce, though within nine months, will be bastard. but if a man dies, and his widow soon after marries again, and a child is born within such a time, as that by the course of nature it might have been the child of either husband; in this case he is said to be more than ordinarily legitimate; for he may, when he arrives to years of discretion, choose which of the fathers he pleases[p]. to prevent this, among other inconveniences, the civil law ordained that no widow should marry _infra annum luctus_[q]; a rule which obtained so early as the reign of augustus[r], if not of romulus: and the same constitution was probably handed down to our early ancestors from the romans, during their stay in this island; for we find it established under the saxon and danish governments[s]. [footnote l: cro. jac. 541.] [footnote m: stiernhook _de jure gothor._ _l._ 3. _c._ 5.] [footnote n: co. litt. 8.] [footnote o: _ff._ 25. _tit._ 4. _per tot._] [footnote p: co. litt. 8.] [footnote q: _cod._ 5. 9. 2.] [footnote r: but the year was then only _ten_ months. ovid. fast. i. 27.] [footnote s: _sit omnis vidua sine marito duodecim menses._ _ll. ethelr._ _a.d._ 1008. _ll. canut._ _c._ 71.] as bastards may be born before the coverture, or marriage state, is begun, or after it is determined, so also children born during wedlock may in some circumstances be bastards. as if the husband be out of the kingdom of england (or, as the law somewhat loosely phrases it, _extra quatuor maria_) for above nine months, so that no access to his wife can be presumed, her issue during that period shall be bastard[t]. but, generally, during the coverture access of the husband shall be presumed, unless the contrary can be shewn[u]; which is such a negative as can only be proved by shewing him to be elsewhere: for the general rule is, _praesumitur pro legitimatione_[w]. in a divorce _a mensa et thoro_, if the wife breeds children, they are bastards; for the law will presume the husband and wife conformable to the sentence of separation, unless access be proved: but, in a voluntary separation by agreement, the law will suppose access, unless the negative be shewn[x]. so also if there is an apparent impossibility of procreation on the part of the husband, as if he be only eight years old, or the like, there the issue of the wife shall be bastard[y]. likewise, in case of divorce in the spiritual court _a vinculo matrimonii_, all the issue born during the coverture are bastards[z]; because such divorce is always upon some cause, that rendered the marriage unlawful and null from the beginning. [footnote t: co. litt. 244.] [footnote u: salk. 123. 3 p.w. 276. stra. 925.] [footnote w: 5 rep. 98.] [footnote x: salk. 123.] [footnote y: co. litt. 244.] [footnote z: _ibid._ 235.] 2. let us next see the duty of parents to their bastard children, by our law; which is principally that of maintenance. for, though bastards are not looked upon as children to any civil purposes, yet the ties of nature, of which maintenance is one, are not so easily dissolved: and they hold indeed as to many other intentions; as, particularly, that a man shall not marry his bastard sister or daughter[a]. the civil law therefore, when it denied maintenance to bastards begotten under certain atrocious circumstances[b], was neither consonant to nature, nor reason, however profligate and wicked the parents might justly be esteemed. [footnote a: lord raym. 68. comb. 356.] [footnote b: _nov._ 89. _c._ 15.] the method in which the english law provides maintenance for them is as follows[c]. when a woman is delivered, or declares herself with child, of a bastard, and will by oath before a justice of peace charge any person having got her with child, the justice shall cause such person to be apprehended, and commit him till he gives security, either to maintain the child, or appear at the next quarter sessions to dispute and try the fact. but if the woman dies, or is married before delivery, or miscarries, or proves not to have been with child, the person shall be discharged: otherwise the sessions, or two justices out of sessions, upon original application to them, may take order for the keeping of the bastard, by charging the mother, or the reputed father with the payment of money or other sustentation for that purpose. and if such putative father, or lewd mother, run away from the parish, the overseers by direction of two justices may seize their rents, goods, and chattels, in order to bring up the said bastard child. yet such is the humanity of our laws, that no woman can be compulsively questioned concerning the father of her child, till one month after her delivery: which indulgence is however very frequently a hardship upon parishes, by suffering the parents to escape. [footnote c: stat. 18 eliz. c. 3. 7 jac. i. c. 4. 3 car. i. c. 4. 13 & 14 car. ii. c. 12. 6 geo. ii. c. 31.] 3. i proceed next to the rights and incapacities which appertain to a bastard. the rights are very few, being only such as he can _acquire_; for he can _inherit_ nothing, being looked upon as the son of nobody, and sometimes called _filius nullius_, sometimes _filius populi_[d]. yet he may gain a sirname by reputation[e], though he has none by inheritance. all other children have a settlement in their father's parish; but a bastard in the parish where born, for he hath no father[f]. however, in case of fraud, as if a woman be sent either by order of justices, or comes to beg as a vagrant, to a parish which she does not belong to, and drops her bastard there; the bastard shall, in the first case, be settled in the parish from whence she was illegally removed[g]; or, in the latter case, in the mother's own parish, if the mother be apprehended for her vagrancy[h]. the incapacity of a bastard consists principally in this, that he cannot be heir to any one, neither can he have heirs, but of his own body; for, being _nullius filius_, he is therefore of kin to nobody, and has no ancestor from whom any inheritable blood can be derived. a bastard was also, in strictness, incapable of holy orders; and, though that were dispensed with, yet he was utterly disqualified from holding any dignity in the church[i]: but this doctrine seems now obsolete; and in all other respects, there is no distinction between a bastard and another man. and really any other distinction, but that of not inheriting, which civil policy renders necessary, would, with regard to the innocent offspring of his parents' crimes, be odious, unjust, and cruel to the last degree: and yet the civil law, so boasted of for it's equitable decisions, made bastards in some cases incapable even of a gift from their parents[k]. a bastard may, lastly, be made legitimate, and capable of inheriting, by the transcendent power of an act of parliament, and not otherwise[l]: as was done in the case of john of gant's bastard children, by a statute of richard the second. [footnote d: _fort. de ll._ _c._ 40.] [footnote e: co. litt. 3.] [footnote f: salk. 427.] [footnote g: salk. 121.] [footnote h: stat. 17 geo. ii. c. 5.] [footnote i: fortesc. _c._ 40. 5 rep. 58.] [footnote k: _cod._ 6. 57. 5.] [footnote l: 4 inst. 36.] chapter the seventeenth. of guardian and ward. the only general private relation, now remaining to be discussed, is that of guardian and ward; which bears a very near resemblance to the last, and is plainly derived out of it: the guardian being only a temporary parent; that is, for so long time as the ward is an infant, or under age. in examining this species of relationship, i shall first consider the different kinds of guardians, how they are appointed, and their power and duty: next, the different ages of persons, as defined by the law: and, lastly, the privileges and disabilities of an infant, or one under age and subject to guardianship. 1. the guardian with us performs the office both of the _tutor_ and _curator_ of the roman laws; the former of which had the charge of the maintenance and education of the minor, the latter the care of his fortune; or, according to the language of the court of chancery, the _tutor_ was the committee of the person, the _curator_ the committee of the estate. but this office was frequently united in the civil law[a]; as it is always in our law with regard to minors, though as to lunatics and idiots it is commonly kept distinct. [footnote a: _ff._ 26. 4. 1.] of the several species of guardians, the first are guardians _by nature_: viz. the father and (in some cases) the mother of the child. for, if an estate be left to an infant, the father is by common law the guardian, and must account to his child for the profits[b]. and, with regard to daughters, it seems by construction of the statute 4 & 5 ph. & mar. c. 8. that the father might by deed or will assign a guardian to any woman-child under the age of sixteen, and if none be so assigned, the mother shall in this case be guardian[c]. there are also guardians _for nurture_[d], which are, of course, the father or mother, till the infant attains the age of fourteen years[e]: and, in default of father or mother, the ordinary usually assigns some discreet person to take care of the infant's personal estate, and to provide for his maintenance and education[f]. next are guardians _in socage_, (an appellation which will be fully explained in the second book of these commentaries) who are also called guardians _by the common law_. these take place only when the minor is entitled to some estate in lands, and then by the common law the guardianship devolves upon his next of kin, to whom the inheritance cannot possibly descend; as, where the estate descended from his father, in this case his uncle by the mother's side cannot possibly inherit this estate, and therefore shall be the guardian[g]. for the law judges it improper to trust the person of an infant in his hands, who may by possibility become heir to him; that there may be no temptation, nor even suspicion of temptation, for him to abuse his trust[h]. the roman laws proceed on a quite contrary principle, committing the care of the minor to him who is the next to succeed to the inheritance, presuming that the next heir would take the best care of an estate, to which he has a prospect of succeeding: and this they boast to be "_summa providentia_[i]." but in the mean time they forget, how much it is the guardian's interest to remove the incumbrance of his pupil's life from that estate, for which he is supposed to have so great a regard[k]. and this affords fortescue[l], and sir edward coke[m], an ample opportunity for triumph; they affirming, that to commit the custody of an infant to him that is next in succession, is "_quasi agnum committere lupo, ad devorandum_[n]." these guardians in socage, like those for nurture, continue only till the minor is fourteen years of age; for then, in both cases, he is presumed to have discretion, so far as to choose his own guardian. this he may do, unless one be appointed by father, by virtue of the statute 12 car. ii. c. 24. which, considering the imbecillity of judgment in children of the age of fourteen, and the abolition of guardianship _in chivalry_ (which lasted till the age of twenty one, and of which we shall speak hereafter) enacts, that any father, under age or of full age, may by deed or will dispose of the custody of his child, either born or unborn, to any person, except a popish recusant, either in possession or reversion, till such child attains the age of one and twenty years. these are called guardians _by statute_, or _testamentary_ guardians. there are also special guardians _by custom_ of london, and other places[o]; but they are particular exceptions, and do not fall under the general law. [footnote b: co. litt. 88.] [footnote c: 3 rep. 39.] [footnote d: co. litt. 88.] [footnote e: moor. 738. 3 rep. 38.] [footnote f: 2 jones 90. 2 lev. 163.] [footnote g: litt. â§. 123.] [footnote h: _nunquam custodia alicujus de jure alicui remanet, de quo habeatur suspicio, quod possit vel velit aliquod jus in ipsa hereditate clamare._ glanv. _l._ 7. _c._ 11.] [footnote i: _ff._ 26. 4. 1.] [footnote k: the roman satyrist was fully aware of this danger, when he puts this private prayer into the mouth of a selfish guardian; _pupillum o utinam, quem proximus haeres impello, expungam._ perf. 1. 12.] [footnote l: _c._ 44.] [footnote m: 1 inst. 88.] [footnote n: this policy of our english law is warranted by the wise institutions of solon, who provided that no one should be another's guardian, who was to enjoy the estate after his death. (potter's antiqu. l. 1. c. 26.) and charondas, another of the grecian legislators, directed that the inheritance should go to the father's relations, but the education of the child to the mother's; that the guardianship and right of succession might always be kept distinct. (petit. _leg. att._ _l._ 6. _t._ 7.)] [footnote o: co. litt. 88.] the power and reciprocal duty of a guardian and ward are the same, _pro tempore_, as that of a father and child; and therefore i shall not repeat them: but shall only add, that the guardian, when the ward comes of age, is bound to give him an account of all that he has transacted on his behalf, and must answer for all losses by his wilful default or negligence. in order therefore to prevent disagreeable contests with young gentlemen, it has become a practice for many guardians, of large estates especially, to indemnify themselves by applying to the court of chancery, acting under it's direction, and accounting annually before the officers of that court. for the lord chancellor is, by right derived from the crown, the general and supreme guardian of all infants, as well as idiots and lunatics; that is, of all such persons as have not discretion enough to manage their own concerns. in case therefore any guardian abuses his trust, the court will check and punish him; nay sometimes proceed to the removal of him, and appoint another in his stead[p]. [footnote p: 1 sid. 424. 1 p. will. 703.] 2. let us next consider the ward, or person within age, for whose assistance and support these guardians are constituted by law; or who it is, that is said to be within age. the ages of male and female are different for different purposes. a male at _twelve_ years old may take the oath of allegiance; at _fourteen_ is at years of discretion, and therefore may consent or disagree to marriage, may choose his guardian, and, if his discretion be actually proved, may make his testament of his personal estate; at _seventeen_ may be an executor; and at _twenty one_ is at his own disposal, and may aliene his lands, goods, and chattels. a female also at _seven_ years of age may be betrothed or given in marriage; at _nine_ is entitled to dower; at _twelve_ is at years of maturity, and therefore may consent or disagree to marriage, and, if proved to have sufficient discretion, may bequeath her personal estate; at _fourteen_ is at years of legal discretion, and may choose a guardian; at _seventeen_ may be executrix; and at _twenty one_ may dispose of herself and her lands. so that full age in male or female, is twenty one years, which age is completed on the day preceding the anniversary of a person's birth[q]; who till that time is an infant, and so stiled in law. among the antient greeks and romans _women_ were never of age, but subject to perpetual guardianship[r], unless when married, "_nisi convenissent in manum viri_:" and, when that perpetual tutelage wore away in process of time, we find that, in females as well as males, full age was not till twenty five years[s]. thus, by the constitutions of different kingdoms, this period, which is merely arbitrary, and _juris positivi_, is fixed at different times. scotland agrees with england in this point; (both probably copying from the old saxon constitutions on the continent, which extended the age of minority "_ad annum vigesimum primum, et eo usque juvenes sub tutelam reponunt_[t]") but in naples they are of full age at _eighteen_; in france, with regard to marriage, not till _thirty_; and in holland at _twenty five_. [footnote q: salk. 44. 625.] [footnote r: pott. antiq. l. 4. c. 11. cic. _pro muren._ 12.] [footnote s: _inst._ 1. 23. 1.] [footnote t: stiernhook _de jure sueonum._ _l._ 2. _c._ 2. this is also the period when the king, as well as the subject, arrives at full age in modern sweden. mod. un. hist. xxxiii. 220.] 3. infants have various privileges, and various disabilities: but their very disabilities are privileges; in order to secure them from hurting themselves by their own improvident acts. an infant cannot be sued but under the protection, and joining the name, of his guardian; for he is to defend him against all attacks as well by law as otherwise[u]: but he may sue either by his guardian, or _prochein amy_, his next friend who is not his guardian. this _prochein amy_ may be any person who will undertake the infant's cause; and it frequently happens, that an infant, by his _prochein amy_, institutes a suit in equity against a fraudulent guardian. in criminal cases, an infant of the age of _fourteen_ years may be capitally punished for any capital offence[w]: but under the age of _seven_ he cannot. the period between _seven_ and _fourteen_ is subject to much incertainty: for the infant shall, generally speaking, be judged _prima facie_ innocent; yet if he was _doli capax_, and could discern between good and evil at the time of the offence committed, he may be convicted and undergo judgment and execution of death, though he hath not attained to years of puberty or discretion[x]. and sir matthew hale gives us two instances, one of a girl of thirteen, who was burned for killing her mistress; another of a boy still younger, that had killed his companion, and hid himself, who was hanged; for it appeared by his hiding that he knew he had done wrong, and could discern between good and evil; and in such cases the maxim of law is, that _malitia supplet aetatem_. [footnote u: co. litt. 135.] [footnote w: 1 hal. p.c. 25.] [footnote x: 1 hal. p.c. 26.] with regard to estates and civil property, an infant hath many privileges, which will be better understood when we come to treat more particularly of those matters: but this may be said in general, that an infant shall lose nothing by non-claim, or neglect of demanding his right; nor shall any other _laches_ or negligence be imputed to an infant, except in some very particular cases. it is generally true, that an infant can neither aliene his lands, nor do any legal act, nor make a deed, nor indeed any manner of contract, that will bind him. but still to all these rules there are some exceptions; part of which were just now mentioned in reckoning up the different capacities which they assume at different ages: and there are others, a few of which it may not be improper to recite, as a general specimen of the whole. and, first, it is true, that infants cannot aliene their estates: but[y] infant trustees, or mortgagees, are enabled to convey, under the direction of the court of chancery or exchequer, the estates they hold in trust or mortgage, to such person as the court shall appoint. also it is generally true, that an infant can do no legal act: yet an infant who has an advowson, may present to the benefice when it becomes void[z]. for the law in this case dispenses with one rule, in order to maintain others of far greater consequence: it permits an infant to present a clerk (who, if unfit, may be rejected by the bishop) rather than either suffer the church to be unserved till he comes of age, or permit the infant to be debarred of his right by lapse to the bishop. an infant may also purchase lands, but his purchase is incomplete: for, when he comes to age, he may either agree or disagree to it, as he thinks prudent or proper, without alleging any reason; and so may his heirs after him, if he dies without having completed his agreement[a]. it is, farther, generally true, that an infant, under twenty one, can make no deed that is of any force or effect: yet[b] he may bind himself apprentice by deed indented, or indentures, for seven years; and[c] he may by deed or will appoint a guardian to his children, if he has any. lastly, it is generally true, that an infant can make no other contract that will bind him: yet he may bind himself to pay for his necessary meat, drink, apparel, physic, and such other necessaries; and likewise for his good teaching and instruction, whereby he may profit himself afterwards[d]. and thus much, at present, for the privileges and disabilities of infants. [footnote y: stat. 7 ann. c. 19.] [footnote z: co. litt. 172.] [footnote a: co. litt. 2.] [footnote b: stat. 5 eliz. c. 4.] [footnote c: stat. 12 car. ii. c. 24.] [footnote d: co. litt. 172.] chapter the eighteenth. of corporations. we have hitherto considered persons in their natural capacities, and have treated of their rights and duties. but, as all personal rights die with the person; and, as the necessary forms of investing a series of individuals, one after another, with the same identical rights, would be very inconvenient, if not impracticable; it has been found necessary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to constitute artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality. these artificial persons are called bodies politic, bodies corporate, (_corpora corporata_) or corporations: of which there is a great variety subsisting, for the advancement of religion, of learning, and of commerce; in order to preserve entire and for ever those rights and immunities, which, if they were granted only to those individuals of which the body corporate is composed, would upon their death be utterly lost and extinct. to shew the advantages of these incorporations, let us consider the case of a college in either of our universities, founded _ad studendum et orandum_, for the encouragement and support of religion and learning. if this was a mere voluntary assembly, the individuals which compose it might indeed read, pray, study, and perform scholastic exercises together, so long as they could agree to do so: but they could neither frame, nor receive, any laws or rules of their conduct; none at least, which would have any binding force, for want of a coercive power to create a sufficient obligation. neither could they be capable of retaining any privileges or immunities: for, if such privileges be attacked, which of all this unconnected assembly has the right, or ability, to defend them? and, when they are dispersed by death or otherwise, how shall they transfer these advantages to another set of students, equally unconnected as themselves? so also, with regard to holding estates or other property, if land be granted for the purposes of religion or learning to twenty individuals not incorporated, there is no legal way of continuing the property to any other persons for the same purposes, but by endless conveyances from one to the other, as often as the hands are changed. but, when they are consolidated and united into a corporation, they and their successors are then considered as one person in law: as one person, they have one will, which is collected from the sense of the majority of the individuals: this one will may establish rules and orders for the regulation of the whole, which are a sort of municipal laws of this little republic; or rules and statutes may be prescribed to it at it's creation, which are then in the place of natural laws: the privileges and immunities, the estates and possessions, of the corporation, when once vested in them, will be for ever vested, without any new conveyance to new successions; for all the individual members that have existed from the foundation to the present time, or that shall ever hereafter exist, are but one person in law, a person that never dies: in like manner as the river thames is still the same river, though the parts which compose it are changing every instant. the honour of originally inventing these political constitutions entirely belongs to the romans. they were introduced, as plutarch says, by numa; who finding, upon his accession, the city torn to pieces by the two rival factions of sabines, and romans, thought it a prudent and politic measure, to subdivide these two into many smaller ones, by instituting separate societies of every manual trade and profession. they were afterwards much considered by the civil law[a], in which they were called _universitates_, as forming one whole out of many individuals; or _collegia_, from being gathered together: they were adopted also by the canon law, for the maintenance of ecclesiastical discipline; and from them our spiritual corporations are derived. but our laws have considerably refined and improved upon the invention, according to the usual genius of the english nation: particularly with regard to sole corporations, consisting of one person only, of which the roman lawyers had no notion; their maxim being that "_tres faciunt collegium_[b]." though they held, that if a corporation, originally consisting of three persons, be reduced to one, "_si universitas ad unum redit_," it may still subsist as a corporation, "_et stet nomen universitatis_[c]." [footnote a: _ff._ _l._ 3. _t._ 4. _per tot._] [footnote b: _ff._ 50. 16. 85.] [footnote c: _ff._ 3. 4. 7.] before we proceed to treat of the several incidents of corporations, as regarded by the laws of england, let us first take a view of the several sorts of them; and then we shall be better enabled to apprehend their respective qualities. the first division of corporations is into _aggregate_ and _sole_. corporations aggregate consist of many persons united together into one society, and are kept up by a perpetual succession of members, so as to continue for ever: of which kind are the mayor and commonalty of a city, the head and fellows of a college, the dean and chapter of a cathedral church. corporations sole consist of one person only and his successors, in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had. in this sense the king is a sole corporation[d]: so is a bishop: so are some deans, and prebendaries, distinct from their several chapters: and so is every parson and vicar. and the necessity, or at least use, of this institution will be very apparent, if we consider the case of a parson of a church. at the original endowment of parish churches, the freehold of the church, the church-yard, the parsonage house, the glebe, and the tithes of the parish, were vested in the then parson by the bounty of the donor, as a temporal recompence to him for his spiritual care of the inhabitants, and with intent that the same emoluments should ever afterwards continue as a recompense for the same care. but how was this to be effected? the freehold was vested in the parson; and, if we suppose it vested in his natural capacity, on his death it might descend to his heir, and would be liable to his debts and incumbrances: or, at best, the heir might be compellable, at some trouble and expense, to convey these rights to the succeeding incumbent. the law therefore has wisely ordained, that the parson, _quatenus_ parson, shall never die, any more than the king; by making him and his successors a corporation. by which means all the original rights of the parsonage are preserved entire to the successor: for the present incumbent, and his predecessor who lived seven centuries ago, are in law one and the same person; and what was given to the one was given to the other also. [footnote d: co. litt. 43.] another division of corporations, either sole or aggregate, is into _ecclesiastical_ and _lay_. ecclesiastical corporations are where the members that compose it are entirely spiritual persons; such as bishops; certain deans, and prebendaries; all archdeacons, parsons, and vicars; which are sole corporations: deans and chapters at present, and formerly prior and convent, abbot and monks, and the like, bodies aggregate. these are erected for the furtherance of religion, and the perpetuating the rights of the church. lay corporations are of two sorts, _civil_ and _eleemosynary_. the civil are such as are erected for a variety of temporal purposes. the king, for instance, is made a corporation to prevent in general the possibility of an _interregnum_ or vacancy of the throne, and to preserve the possessions of the crown entire; for, immediately upon the demise of one king, his successor is, as we have formerly seen, in full possession of the regal rights and dignity. other lay corporations are erected for the good government of a town or particular district, as a mayor and commonalty, bailiff and burgesses, or the like: some for the advancement and regulation of manufactures and commerce; as the trading companies of london, and other towns: and some for the better carrying on of divers special purposes; as churchwardens, for conservation of the goods of the parish; the college of physicians and company of surgeons in london, for the improvement of the medical science; the royal society, for the advancement of natural knowlege; and the society of antiquarians, for promoting the study of antiquities. and among these i am inclined to think the general corporate bodies of the universities of oxford and cambridge must be ranked: for it is clear they are not spiritual or ecclesiastical corporations, being composed of more laymen than clergy: neither are they eleemosynary foundations, though stipends are annexed to particular magistrates and professors, any more than other corporations where the acting officers have standing salaries; for these are rewards _pro opera et labore_, not charitable donations only, since every stipend is preceded by service and duty: they seem therefore to be merely civil corporations. the eleemosynary sort are such as are constituted for the perpetual distribution of the free alms, or bounty, of the founder of them to such persons as he has directed. of this kind are all hospitals for the maintenance of the poor, sick, and impotent; and all colleges, both _in_ our universities and _out_[e] of them: which colleges are founded for two purposes; 1. for the promotion of piety and learning by proper regulations and ordinances. 2. for imparting assistance to the members of those bodies, in order to enable them to prosecute their devotion and studies with greater ease and assiduity. and all these eleemosynary corporations are, strictly speaking, lay and not ecclesiastical, even though composed of ecclesiastical persons[f], and although they in some things partake of the nature, privileges, and restrictions of ecclesiastical bodies. [footnote e: such as at manchester, eton, winchester, &c.] [footnote f: 1 lord raym. 6.] having thus marshalled the several species of corporations, let us next proceed to consider, 1. how corporations, in general, may be created. 2. what are their powers, capacities, and incapacities. 3. how corporations are visited. and 4. how they may be dissolved. i. corporations, by the civil law, seem to have been created by the mere act, and voluntary association of their members; provided such convention was not contrary to law, for then it was _illicitum collegium_[g]. it does not appear that the prince's consent was necessary to be actually given to the foundation of them; but merely that the original founders of these voluntary and friendly societies (for they were little more than such) should not establish any meetings in opposition to the laws of the state. [footnote g: _ff._ 47. 22. 1. _neque societas, neque collegium, neque hujusmodi corpus passim omnibus habere conceditur; nam et legibus, et senatus consultis, et principalibus constitutionibus ea res coercetur._ _ff._ 3. 4. 1.] but, with us in england, the king's consent is absolutely necessary to the erection of any corporation, either impliedly or expressly given. the king's implied consent is to be found in corporations which exist by force of the _common law_, to which our former kings are supposed to have given their concurrence; common law being nothing else but custom, arising from the universal agreement of the whole community. of this sort are the king himself, all bishops, parsons, vicars, churchwardens, and some others; who by common law have ever been held (as far as our books can shew us) to have been corporations, _virtute officii_: and this incorporation is so inseparably annexed to their offices, that we cannot frame a complete legal idea of any of these persons, but we must also have an idea of a corporation, capable to transmit his rights to his successors, at the same time. another method of implication, whereby the king's consent is presumed, is as to all corporations by _prescription_, such as the city of london, and many others[h], which have existed as corporations, time whereof the memory of man runneth not to the contrary; and therefore are looked upon in law to be well created. for though the members thereof can shew no legal charter of incorporation, yet in cases of such high antiquity the law presumes there once was one; and that by the variety of accidents, which a length of time may produce, the charter is lost or destroyed. the methods, by which the king's consent is expressly given, are either by act of parliament or charter. by act of parliament, of which the royal assent is a necessary ingredient, corporations may undoubtedly be created[i]: but it is observable, that most of those statutes, which are usually cited as having created corporations, do either confirm such as have been before created by the king; as in the case of the college of physicians, erected by charter 10 hen. viii[k], which charter was afterwards confirmed in parliament[l]; or, they permit the king to erect a corporation _in futuro_ with such and such powers; as is the case of the bank of england[m], and the society of the british fishery[n]. so that the immediate creative act is usually performed by the king alone, in virtue of his royal prerogative[o]. [footnote h: 2 inst. 330.] [footnote i: 10 rep. 29. 1 roll. abr. 512. [transcriber's note: footnote marker missing in original.]] [footnote k: 8 rep. 114.] [footnote l: 14 & 15 hen. viii. c. 5.] [footnote m: stat. 5 & 6 w. & m. c. 20.] [footnote n: stat. 23 geo. ii. c. 4.] [footnote o: see page 263.] all the other methods therefore whereby corporations exist, by common law, by prescription, and by act of parliament, are for the most part reducible to this of the king's letters patent, or charter of incorporation. the king's creation may be performed by the words "_creamus, erigimus, fundamus, incorporamus_," or the like. nay it is held, that if the king grants to a set of men to have _gildam mercatoriam_, a mercantile meeting or assembly[p], this is alone sufficient to incorporate and establish them for ever[q]. [footnote p: _gild_ signified among the saxons a fraternity, derived from the verb [anglo-saxon: gildan] to pay, because every man paid his share towards the expenses of the community. and hence their place of meeting is frequently called the _gild-hall_.] [footnote q: 10 rep. 30. 1 roll. abr. 513.] the parliament, we observed, by it's absolute and transcendent authority, may perform this, or any other act whatsoever: and actually did perform it to a great extent, by statute 39 eliz. c. 5. which incorporated all hospitals and houses of correction founded by charitable persons, without farther trouble: and the same has been done in other cases of charitable foundations. but otherwise it is not usual thus to intrench upon the prerogative of the crown, and the king may prevent it when he pleases. and, in the particular instance before-mentioned, it was done, as sir edward coke observes[r], to avoid the charges of incorporation and licences of mortmain in small benefactions; which in his days were grown so great, that it discouraged many men to undertake these pious and charitable works. [footnote r: 2 inst. 722.] the king may grant to a subject the power of erecting corporations[s], though the contrary was formerly held[t]: that is, he may permit the subject to name the persons and powers of the corporation at his pleasure; but it is really the king that erects, and the subject is but the instrument: for though none but the king can make a corporation, yet _qui facit per alium, facit per se_[v]. in this manner the chancellor of the university of oxford has power by charter to erect corporations; and has actually often exerted it, in the erection of several matriculated companies, now subsisting, of tradesmen subservient to the students. [footnote s: bro. _abr. tit. prerog._ 53. viner. _prerog._ 88. pl. 16.] [footnote t: yearbook, 2 hen. vii. 13.] [footnote v: 10 rep. 33.] when a corporation is erected, a name must be given it; and by that name alone it must sue, and be sued, and do all legal acts; though a very minute variation therein is not material[u]. such name is the very being of it's constitution; and, though it is the will of the king that erects the corporation, yet the name is the knot of it's combination, without which it could not perform it's corporate functions[w]. the name of incorporation, says sir edward coke, is as a proper name, or name of baptism; and therefore when a private founder gives his college or hospital a name, he does it only as godfather; and by that same name the king baptizes the incorporation[x]. [footnote u: 10 rep. 122. [transcriber's note: footnotes v and u are in this order in the original.]] [footnote w: gilb. hist. c.p. 182.] [footnote x: 10 rep. 28.] ii. after a corporation is so formed and named, it acquires many powers, rights, capacities, and incapacities, which we are next to consider. some of these are necessarily and inseparably incident to every corporation; which incidents, as soon as a corporation is duly erected, are tacitly annexed of course[y]. as, 1. to have perpetual succession. this is the very end of it's incorporation: for there cannot be a succession for ever without an incorporation[z]; and therefore all aggregate corporations have a power necessarily implied of electing members in the room of such as go off[a]. 2. to sue or be sued, implead or be impleaded, grant or receive, by it's corporate name, and do all other acts as natural persons may. 3. to purchase lands, and hold them, for the benefit of themselves and their successors: which two are consequential to the former. 4. to have a common seal. for a corporation, being an invisible body, cannot manifest it's intentions by any personal act or oral discourse: it therefore acts and speaks only by it's common seal. for, though the particular members may express their private consents to any act, by words, or signing their names, yet this does not bind the corporation: it is the fixing of the seal, and that only, which unites the several assents of the individuals, who compose the community, and makes one joint assent of the whole[b]. 5. to make by-laws or private statutes for the better government of the corporation; which are binding upon themselves, unless contrary to the laws of the land, and then they are void. this is also included by law in the very act of incorporation[c]: for, as natural reason is given to the natural body for the governing it, so by-laws or statutes are a sort of political reason to govern the body politic. and this right of making by-laws for their own government, not contrary to the law of the land, was allowed by the law of the twelve tables at rome[d]. but no trading company is, with us, allowed to make by-laws, which may affect the king's prerogative, or the common profit of the people, unless they be approved by the chancellor, treasurer, and chief justices, or the judges of assise in their circuits[e]. these five powers are inseparably incident to every corporation, at least to every corporation _aggregate_: for two of them, though they may be practised, yet are very unnecessary to a corporation _sole_; viz. to have a corporate seal to testify his sole assent, and to make statutes for the regulation of his own conduct. [footnote y: 10 rep. 30. hob. 211.] [footnote z: 10 rep. 26.] [footnote a: 1 roll. abr. 514.] [footnote b: dav. 44. 48.] [footnote c: hob. 211.] [footnote d: _sodales legem quam volent, dum ne quid ex publica lege corrumpant, sibi ferunto._] [footnote e: stat. 19 hen. vii. c. 7.] there are also certain privileges and disabilities that attend an aggregate corporation, and are not applicable to such as are sole; the reason of them ceasing, and of course the law. it must always appear by attorney; for it cannot appear in person, being, as sir edward coke says[f], invisible, and existing only in intendment and consideration of law. it can neither maintain, or be made defendant to, an action of battery or such like personal injuries; for a corporation can neither beat, nor be beaten, in it's body politic[g]. a corporation cannot commit treason, or felony, or other crime, in it's corporate capacity[h]: though it's members may, in their distinct individual capacities. neither is it capable of suffering a traitor's, or felon's punishment, for it is not liable to corporal penalties, nor to attainder, forfeiture, or corruption of blood[i]. it cannot be executor or administrator, or perform any personal duties; for it cannot take an oath for the due execution of the office. it cannot be a trustee; for such kind of confidence is foreign to the ends of it's institution: neither can it be compelled to perform such trust, because it cannot be committed to prison[k]; for it's existence being ideal, no man can apprehend or arrest it. and therefore also it cannot be outlawed; for outlawry always supposes a precedent right of arresting, which has been defeated by the parties absconding, and that also a corporation cannot do: for which reasons the proceedings to compel a corporation to appear to any suit by attorney are always by distress on their lands and goods[l]. neither can a corporation be excommunicated; for it has no soul, as is gravely observed by sir edward coke[m]: and therefore also it is not liable to be summoned into the ecclesiastical courts upon any account; for those courts act only _pro salute animae_, and their sentences can only be inforced by spiritual censures: a consideration, which, carried to it's full extent, would alone demonstrate the impropriety of these courts interfering in any temporal rights whatsoever. [footnote f: 10 rep. 32.] [footnote g: bro. _abr. tit. corporation._ 63.] [footnote h: 10 rep. 32.] [footnote i: the civil law also ordains that, in any misbehaviour of a body corporate, the directors only shall be answerable in their personal capacity, and not the corporation. _ff._ 4. 3. 15.] [footnote k: plowd. 538.] [footnote l: bro. _abr. tit. corporation._ 11. _outlawry._ 72.] [footnote m: 10 rep. 32.] there are also other incidents and powers, which belong to some sort of corporations, and not to others. an aggregate corporation may take goods and chattels for the benefit of themselves and their successors, but a sole corporation cannot[n]: for such moveable property is liable to be lost or imbezzled, and would raise a multitude of disputes between the successor and executor; which the law is careful to avoid. in ecclesiastical and eleemosynary foundations, the king or the founder may give them rules, laws, statutes, and ordinances, which they are bound to observe: but corporations merely lay, constituted for civil purposes, are subject to no particular statutes; but to the common law, and to their own by-laws, not contrary to the laws of the realm[o]. aggregate corporations also, that have by their constitution a head, as a dean, warden, master, or the like, cannot do any acts during the vacancy of the headship, except only appointing another: neither are they then capable of receiving a grant; for such corporation is incomplete without a head[p]. but there may be a corporation aggregate constituted without a head[q]: as the collegiate church of southwell in nottinghamshire, which consists only of prebendaries; and the governors of the charter-house, london, who have no president or superior, but are all of equal authority. in aggregate corporations also, the act of the major part is esteemed the act of the whole[r]. by the civil law this major part must have consisted of two thirds of the whole; else no act could be performed[s]: which perhaps may be one reason why they required three at least to make a corporation. but, with us, _any_ majority is sufficient to determine the act of the whole body. and whereas, notwithstanding the law stood thus, some founders of corporations had made statutes in derogation of the common law, making very frequently the unanimous assent of the society to be necessary to any corporate act; (which king henry viii found to be a great obstruction to his projected scheme of obtaining a surrender of the lands of ecclesiastical corporations) it was therefore enacted by statute 33 hen. viii. c. 27. that all private statutes shall be utterly void, whereby any grant or election, made by the head, with the concurrence of the major part of the body, is liable to be obstructed by any one or more, being the minority: but this statute extends not to any negative or necessary voice, given by the founder to the head of any such society. [footnote n: co. litt. 46.] [footnote o: lord raym. 8.] [footnote p: co. litt. 263, 264.] [footnote q: 10 rep. 30.] [footnote r: bro. _abr. tit. corporation._ 31, 34.] [footnote s: _ff._ 3. 4. 3.] we before observed that it was incident to every corporation, to have a capacity to purchase lands for themselves and successors: and this is regularly true at the common law[t]. but they are excepted out of the statute of wills[u]; so that no devise of lands to a corporation by will is good: except for charitable uses, by statute 43 eliz. c. 4[w]. and also, by a great variety of statutes[x], their privilege even of purchasing from any living grantor is greatly abridged; so that now a corporation, either ecclesiastical or lay, must have a licence from the king to purchase[y], before they can exert that capacity which is vested in them by the common law: nor is even this in all cases sufficient. these statutes are generally called the statutes of _mortmain_; all purchases made by corporate bodies being said to be purchases in mortmain, _in mortua manu_: for the reason of which appellation sir edward coke[z] offers many conjectures; but there is one which seems more probable than any that he has given us: viz. that these purchases being usually made by ecclesiastical bodies, the members of which (being professed) were reckoned dead persons in law, land therefore, holden by them, might with great propriety be said to be held _in mortua manu_. [footnote t: 10 rep. 30.] [footnote u: 34 hen. viii. c. 5.] [footnote w: hob. 136.] [footnote x: from _magna carta_, 9 hen. iii. c. 36. to 9 geo. ii. c. 36.] [footnote y: by the civil law a corporation was incapable of taking lands, unless by special privilege from the emperor: _collegium, si nullo speciali privilegio subnixum fit, haereditatem capere non posse, dubium non est_. _cod._ 6. 24. 8.] [footnote z: 1 inst. 2.] i shall defer the more particular exposition of these statutes of mortmain, till the next book of these commentaries, when we shall consider the nature and tenures of estates; and also the exposition of those disabling statutes of queen elizabeth, which restrain spiritual and eleemosynary corporations from aliening such lands as they are present in legal possession of: only mentioning them in this place, for the sake of regularity, as statutable incapacities incident and relative to corporations. the general _duties_ of all bodies politic, considered in their corporate capacity, may, like those of natural persons, be reduced to this single one; that of acting up to the end or design, whatever it be, for which they were created by their founder. iii. i proceed therefore next to enquire, how these corporations may be _visited_. for corporations being composed of individuals, subject to human frailties, are liable, as well as private persons, to deviate from the end of their institution. and for that reason the law has provided proper persons to visit, enquire into, and correct all irregularities that arise in such corporations, either sole or aggregate, and whether ecclesiastical, civil, or eleemosynary. with regard to all ecclesiastical corporations, the ordinary is their visitor, so constituted by the canon law, and from thence derived to us. the pope formerly, and now the king, as supreme ordinary, is the visitor of the arch-bishop or metropolitan; the metropolitan has the charge and coercion of all his suffragan bishops; and the bishops in their several dioceses are the visitors of all deans and chapters, of all parsons and vicars, and of all other spiritual corporations. with respect to all lay corporations, the founder, his heirs, or assigns, are the visitors, whether the foundation be civil or eleemosynary; for in a lay incorporation the ordinary neither can nor ought to visit[a]. [footnote a: 10 rep. 31.] i know it is generally said, that civil corporations are subject to no visitation, but merely to the common law of the land; and this shall be presently explained. but first, as i have laid it down as a rule that the founder, his heirs, or assigns, are the visitors of all lay-corporations, let us enquire what is meant by the _founder_. the founder of all corporations in the strictest and original sense is the king alone, for he only can incorporate a society: and in civil incorporations, such as mayor and commonalty, &c, where there are no possessions or endowments given to the body, there is no other founder but the king: but in eleemosynary foundations, such as colleges and hospitals, where there is an endowment of lands, the law distinguishes, and makes two species of foundation; the one _fundatio incipiens_, or the incorporation, in which sense the king is the general founder of all colleges and hospitals; the other _fundatio perficiens_, or the dotation of it, in which sense the first gift of the revenues is the foundation, and he who gives them is in law the founder: and it is in this last sense that we generally call a man the founder of a college or hospital[b]. but here the king has his prerogative: for, if the king and a private man join in endowing an eleemosynary foundation, the king alone shall be the founder of it. and, in general, the king being the sole founder of all civil corporations, and the endower the perficient founder of all eleemosynary ones, the right of visitation of the former results, according to the rule laid down, to the king; and of the latter, to the patron or endower. [footnote b: 10 rep. 33.] the king being thus constituted by law the visitor of all civil corporations, the law has also appointed the place, wherein he shall exercise this jurisdiction: which is the court of king's bench; where, and where only, all misbehaviours of this kind of corporations are enquired into and redressed, and all their controversies decided. and this is what i understand to be the meaning of our lawyers, when they say that these civil corporations are liable to no visitation; that is, that the law having by immemorial usage appointed them to be visited and inspected by the king their founder, in his majesty's court of king's bench, according to the rules of the common law, they ought not to be visited elsewhere, or by any other authority. and this is so strictly true, that though the king by his letters patent had subjected the college of physicians to the visitation of four very respectable persons, the lord chancellor, the two chief justices, and the chief baron; though the college had accepted this charter with all possible marks of acquiescence, and had acted under it for near a century; yet, in 1753, the authority of this provision coming in dispute, on an appeal preferred to these supposed visitors, they directed the legality of their own appointment to be argued: and, as this college was a mere civil, and not an eleemosynary foundation, they at length determined, upon several days solemn debate, that they had no jurisdiction as visitors; and remitted the appellant (if aggrieved) to his regular remedy in his majesty's court of king's bench. as to eleemosynary corporations, by the dotation the founder and his heirs are of common right the legal visitors, to see that that property is rightly employed, which would otherwise have descended to the visitor himself: but, if the founder has appointed and assigned any other person to be visitor, then his assignee so appointed is invested with all the founder's power, in exclusion of his heir. eleemosynary corporations are chiefly hospitals, or colleges in the university. these were all of them considered by the popish clergy, as of mere ecclesiastical jurisdiction: however, the law of the land judged otherwise; and, with regard to hospitals, it has long been held[c], that if the hospital be spiritual, the bishop shall visit; but if lay, the patron. this right of lay patrons was indeed abridged by statute 2 hen. v. c. 1. which ordained, that the ordinary should visit _all_ hospitals founded by subjects; though the king's right was reserved, to visit by his commissioners such as were of royal foundation. but the subject's right was in part restored by statute 14 eliz. c. 5. which directs the bishop to visit such hospitals only, where no visitor is appointed by the founders thereof: and all the hospitals founded by virtue of the statute 39 eliz. c. 5. are to be visited by such persons as shall be nominated by the respective founders. but still, if the founder appoints nobody, the bishop of the diocese must visit[d]. [footnote c: yearbook, 8 edw. iii. 28. 8 aff. 29.] [footnote d: 2 inst. 725.] colleges in the universities (whatever the common law may now, or might formerly, judge) were certainly considered by the popish clergy, under whose direction they were, as _ecclesiastical_, or at least as _clerical_, corporations; and therefore the right of visitation was claimed by the ordinary of the diocese. this is evident, because in many of our most ancient colleges, where the founder had a mind to subject them to a visitor of his own nomination, he obtained for that purpose a papal bulle to exempt them from the jurisdiction of the ordinary; several of which are still preserved in the archives of the respective societies. and i have reason to believe, that in one of our colleges, (wherein the bishop of that diocese, in which oxford was formerly comprized, has immemorially exercised visitatorial authority) there is no special visitor appointed by the college statutes: so that the bishop's interposition can be ascribed to nothing else, but his supposed title as ordinary to visit this, among other ecclesiastical foundations. and it is not impossible, that the number of colleges in cambridge, which are visited by the bishop of ely, may in part be derived from the same original. but, whatever might be formerly the opinion of the clergy, it is now held as established common law, that colleges are lay-corporations, though sometimes totally composed of ecclesiastical persons; and that the right of visitation does not arise from any principles of the canon law, but of necessity was created by the common law[e]. and yet the power and jurisdiction of visitors in colleges was left so much in the dark at common law, that the whole doctrine was very unsettled till king william's time; in the sixth year of whose reign, the famous case of _philips and bury_ happened[f]. in this the main question was, whether the sentence of the bishop of exeter, who (as visitor) had deprived doctor bury the rector of exeter college, could be examined and redressed by the court of king's bench. and the three puisne judges were of opinion, that it might be reviewed, for that the visitor's jurisdiction could not exclude the common law; and accordingly judgment was given in that court. but the lord chief justice, holt, was of a contrary opinion; and held, that by the common law the office of visitor is to judge according to the statutes of the college, and to expel and deprive upon just occasions, and to hear all appeals of course; and that from him, and him only, the party grieved ought to have redress; the founder having reposed in him so entire a confidence, that he will administer justice impartially, that his determinations are final, and examinable in no other court whatsoever. and, upon this, a writ of error being brought in the house of lords, they reversed the judgment of the court of king's bench, and concurred in sir john holt's opinion. and to this leading case all subsequent determinations have been conformable. but, where the visitor is under a temporary disability, there the court of king's bench will interpose, to prevent a defect of justice. thus the bishop of chester is visitor of manchester college: but, happening also to be warden, the court held that his power was suspended during the union of those offices; and therefore issued a peremptory _mandamus_ to him, as warden, to admit a person intitled to a chaplainship[g]. also it is said[h], that if a founder of an eleemosynary foundation appoints a visitor, and limits his jurisdiction by rules and statutes, if the visitor in his sentence exceeds those rules, an action lies against him; but it is otherwise, where he mistakes in a thing within his power. [footnote e: lord raym. 8.] [footnote f: lord raym. 5. 4 mod. 106. shower. 35. skinn. 407. salk. 403. carthew. 180.] [footnote g: stra. 797.] [footnote h: 2 lutw. 1566.] iv. we come now, in the last place, to consider how corporations may be dissolved. any particular member may be disfranchised, or lose his place in the corporation, by acting contrary to the laws of the society, or the laws of the land; or he may resign it by his own voluntary act[i]. but the body politic may also itself be dissolved in several ways; which dissolution is the civil death of the corporation: and in this case their lands and tenements shall revert to the person, or his heirs, who granted them to the corporation; for the law doth annex a condition to every such grant, that if the corporation be dissolved, the grantor shall have the lands again, because the cause of the grant faileth[k]. the grant is indeed only during the life of the corporation; which _may_ endure for ever: but, when that life is determined by the dissolution of the body politic, the grantor takes it back by reversion, as in the case of every other grant for life. and hence it appears how injurious, as well to private as public rights, those statutes were, which vested in king henry viii, instead of the heirs of the founder, the lands of the dissolved monasteries. the debts of a corporation, either to or from it, are totally extinguished by it's dissolution; so that the members thereof cannot recover, or be charged with them, in their natural capacities[l]: agreeable to that maxim of the civil law[m], "_si quid universitati debetur, singulis non debetur; nec, quod debet universitas, singuli debent_." [footnote i: 11 rep. 98.] [footnote k: co. litt. 13.] [footnote l: 1 lev. 237.] [footnote m: _ff._ 3. 4. 7.] a corporation may be dissolved, 1. by act of parliament, which is boundless in it's operations; 2. by the natural death of all it's members, in case of an aggregate corporation; 3. by surrender of it's franchises into the hands of the king, which is a kind of suicide; 4. by forfeiture of it's charter, through negligence or abuse of it's franchises; in which case the law judges that the body politic has broken the condition upon which it was incorporated, and thereupon the incorporation is void. and the regular course is to bring a writ of _quo warranto_, to enquire by what warrant the members now exercise their corporate power, having forfeited it by such and such proceedings. the exertion of this act of law, for the purposes of the state, in the reigns of king charles and king james the second, particularly by seising the charter of the city of london, gave great and just offence; though perhaps, in strictness of law, the proceedings were sufficiently regular: but now[n] it is enacted, that the charter of the city of london shall never more be forfeited for any cause whatsoever. and, because by the common law corporations were dissolved, in case the mayor or head officer was not duly elected on the day appointed in the charter or established by prescription, it is now provided[o], that for the future no corporation shall be dissolved upon that account; and ample directions are given for appointing a new officer, in case there be no election, or a void one, made upon the charter or prescriptive day. [footnote n: stat. 2 w. & m. c. 8.] [footnote o: stat. 11 geo. i. c. 4.] the end of the first book. our legal heritage king aethelbert king george iii 600 a.d. 1776 by s. a. reilly, attorney 175 e. delaware place chicago, illinois 60611-1724 s.a.reilly@att.net 4th edition copyright (c) 2002 preface this was written to appreciate what laws have been in existence for a long time and therefore have proven their success in maintaining a stable society. its purpose is also to see the historical context in which our legal doctrines developed. it includes the inception of the common law system, which was praised because it made law which was not handed down by an absolutist king; the origin of the jury system; the meaning of the magna carta provisions in their historical context; and the emergence of attorneys. this book is a primer. one may read it without prior knowledge of history or law, although it will be more meaningful to attorneys than to others. it can serve as an introduction on which to base further reading in english legal history. it defines terms unique to english legal history. however, the meaning of some terms in king aethelbert's code in chapter 1 are unknown or inexact. in the table of contents, the title of each chapter denotes an important legal development in the given time period for that chapter. each chapter is divided into three sections: the times, the law, and judicial procedure. the times section sets a background and context in which to better understand the law of that period. the usual subject matter of history such as battles, wars, royal intrigues, periods of corruption, and international relations are omitted as not helping to understand the process of civilization and development of the law. standard practices are described, but there are often variations with locality. also, change did not come abruptly, but with vacillations, e.g. the change from pagan to christian belief and the change to allowance of loans for interest. the scientific revolution was accepted only slowly. there were often many attempts made for change before it actually occurred, e.g. gaining parliamentary power over the king's privileges, such as taxation. the law section describes the law governing the behavior and conduct of the populace. it includes law of that time which is the same, similar, or a building block to the law of today. in earlier times this is both statutory law and the common law of the courts. the magna carta, which is quoted in chapter 7, is the first statute of england and is listed first in the "statutes of the realm" and the "statutes at large". the law sections of chapters 7 18 mainly quote or paraphrase most of these statutes. excluded are statutes which do not help us understand the development of our law, such as statutes governing wales after its conquest and statutes on succession rights to the throne. the judicial procedure section describes the process of applying the law and trying cases, and jurisdictions. it also contains some examples of cases. for easy comparison, amounts of money expressed in pounds or marks [danish denomination] have often been converted to the smaller denominations of shillings and pence. there are twenty shillings in a pound. a mark in silver is two-thirds of a pound. shillings are abbreviated: "s." there are twelve pennies or pence in a norman shilling. pence are abbreviated "d." six shillings and two pence is denoted 6s.2d. a scaett was a coin of silver and copper of lesser denomination than a shilling. the sources and reference books from which information was obtained are listed in a bibliography instead of being contained in tedious footnotes. there is no index to pages because the electronic text will print out its pages differently on different computers with different computer settings. instead, a word search may be done on the electronic text. dedication and acknowledgements a vassar college faculty member once dedicated her book to her students, but for whom it would have been written much earlier. this book "our legal heritage" is dedicated to the faculty of vassar college, without whom it would never have been written. much appreciation goes to professor lacey baldwin smith of northwestern university's history department and to professor james curtin of loyola law school for their review and comments on this book: the tudor and stuart periods: chapters 11-17, and the medieval period: chapters 4-10, respectively. table of contents chapters: 1. tort law as the first written law: to 600 2. oaths and perjury: 600-900 3. marriage law: 900-1066 4. martial "law": 1066-1100 5. criminal law and prosecution: 1100-1154 6. common law for all freemen: 1154-1215 7. magna carta: the first statute: 1215-1272 8. land law: 1272-1348 9. legislating the economy: 1348-1399 10. equity from chancery court: 1399-1485 11. use-trust of land: 1485-1509 12. wills and testaments of lands and goods: 1509-1558. 13. consideration and contract law: 1558-1601 14. welfare for the poor: 1601-1625 15. independence of the courts: 1625-1642 16. freedom of religion: 1642-1660 17. habeas corpus: 1660-1702 18. service of process instead of arrest: 1702-1776 19. epilogue: 1776-2000 appendix: sovereigns of england bibliography chapter 1 the times: before 600 a.d. the settlement of england goes back thousands of years. at first, people hunted and gathered their food. they wore animal skins over their bodies for warmth and around their feet for protection when walking. these skins were sewn together with bone needles and threads made from animal sinews. they carried small items by hooking them onto their belts. they used bone and stone tools, e.g. for preparing skins. their uncombed hair was held by thistlethorns, animal spines, or straight bone hair pins. they wore conical hats of bound rush and lived in rush shelters. early clans, headed by kings, lived in huts on top of hills or other high places and fortified by circular or contour earth ditches and banks behind which they could gather for protection. they were probably dug with antler picks and wood spades. the people lived in rectangular huts with four wood posts supporting a roof. the walls were made of saplings, and a mixture of mud and straw. cooking was in a clay oven inside or over an open fire on the outside. water was carried in animal skins or leather pouches from springs lower on the hill up to the settlement. forests abounded with wolves, bears, deer, wild boars, and wild cattle. they could more easily be seen from the hill tops. pathways extended through this camp of huts and for many miles beyond. for wives, men married women of their clan or bought or captured other women, perhaps with the help of a best man. they carried their unwilling wives over the thresholds of their huts, which were sometimes in places kept secret from her family. the first month of marriage was called the honeymoon because the couple was given mead, a drink with fermented honey and herbs, for the first month of their marriage. a wife wore a gold wedding band on the ring finger of her left hand to show that she was married. women usually stayed at home caring for children, preparing meals, and making baskets. they also made wool felt and spun and wove wool into a coarse cloth. flax was grown and woven into a coarse linen cloth. spinning the strands into one continuous thread was done on a stick, which the woman could carry about and spin at anytime when her hands were free. the weaving was done on an upright or warp-weighted loom. people of means draped the cloth around their bodies and fastened it with a metal brooch inlayed with gold, gems, and shell, which were glued on with glue that was obtained from melting animal hooves. people drank from hollowedout animal horns, which they could carry from belts. they could tie things with rawhide strips or rope braids they made. kings drank from animal horns decorated with gold or from cups of amber, shale, or pure gold. men and women wore pendants and necklaces of colorful stones, shells, amber beads, bones, and deer teeth. they skinned and cut animals with hand-axes and knives made of flint dug up from pits and formed by hitting flakes off. the speared fish with barbed bone prongs or wrapped bait around a flint, bone, or shell fish hook. on the coast, they made bone harpoons for deep-sea fish. the flint axe was used to shape wood and bone and was just strong enough to fell a tree, although the process was very slow. the king, who was tall and strong, led his men in hunting groups to kill deer and other wild animals in the forests and to fish in the streams. some men brought their hunting dogs on leashes to follow scent trails to the animal. the men threw stones and spears with flint points at the animals. they used wood clubs to beat them, at the same time using wood shields to protect their bodies. they watched the phases of the moon and learned to predict when it would be full and give the most light for night hunting. this began the concept of a month. circles of stone like stonehenge were built with alignments to paths of the moon. if hunting groups from two clans tried to follow the same deer, there might be a fight between the clans or a blood feud. after the battle, the clan would bring back its dead and wounded. a priest officiated over a funeral for a dead man. his wife would often also go on the funeral pyre with him. the priest also officiated over sacrifices of humans, who were usually offenders found guilty of transgressions. sacrifices were usually made in time of war or pestilence, and usually before the winter made food scarce. the clan ate deer that had been cooked on a spit over a fire, and fruits and vegetables which had been gathered by the women. they drank water from springs. in the spring, food was plentiful. there were eggs of different colors in nests and many hare to eat. the goddess easter was celebrated at this time. after this hunting and gathering era, there was farming and domestication of animals such as horses, pigs, sheep, goats, chicken, and cattle. of these, the pig was the most important meat supply, being killed and salted for winter use. next in importance were the cattle. sheep were kept primarily for their wool. flocks and herds were taken to pastures. the male cattle, with wood yokes, pulled ploughs in the fields of barley and wheat. the female goat and cow provided milk, butter, and cheese. the chickens provided eggs. the hoe, spade, and grinding stone were used. thread was spun with a hand-held spindle which one hand held while the other hand alternately formed the thread from a mass and then wound it around the spindle. a coarse cloth was woven and worn as a tunic which had been cut from the cloth. kings wore tunics decorated with sheet gold. decorated pottery was made from clay and used to hold liquids and for food preparation and consumption. during the period of "lent" [from the word "lencten", which means spring], it was forbidden to eat any meat or fish. this was the season in which many animals were born and grew to maturity. wood carts with four wheels were used to transport produce and manure. horses were used for transportation of people or goods. wood dug-out boats and paddles were used to fish on rivers or on the seacoast. clans had settlements near rivers. each settlement had a meadow, for the mowing of hay, and a simple mill, with round timber huts, covered with branches or thatch or turf supported by a ring of posts. inside was a hearth with smoke going up through a hole in the roof, and a cauldron for cooking food. there was an upright loom in the darkness. the floor was swept clean. at the door were spears or bags of slingstones ready for immediate use. the king lived in the largest hut. gullies outside carried off excess water. each hut had a garden for fruit and vegetables. a goat or cow might be tied out of reach of the garden. there was a fence or hedge surrounding and protecting the garden area and dwelling. buckets and cauldrons which had originated from the mediterranean were used. querns with the top circular stone turned by hand over the bottom stone were used for grinding grain. there were ovens to dry and roast grain. grain was first eaten as a porridge or cereal. there were square wood graneries on stilts and wood racks on which to dry hay. grain was stored in concealed pits in the earth which were lined with drystone or basketwork or clay and made airtight by sealing with clay or dung. old pits were converted into waste dumps, burials, or latrines. outside the fence were an acre or two of fields of wheat and barley, and sometimes oats and rye. wheat and rye were sown in the fall, and oats and barley in the spring. sowing was by men or two oxen drawing a simple scratch plow. the crops were all harvested in the summer. in this two-field system, land was held by peasants in units designed to support a single extended family. these fields were usually enclosed with a hedge to keep animals from eating the crop and to define the territory of the settlement from that of its neighbors. flax was grown and made into linen cloth. beyond the fields were pastures for cattle and sheep grazing. there was often an area for beehives. this was subsistence level farming. pottery was given symmetry when formed with use of a wheel and heated in increasingly hot kilns. from kilns used for pottery, it was noticed that lumps of gold or copper ore within would melt and assume the shape of what they had been resting on. these were the first metals, and could be beaten into various shapes, such as ornaments. then the liquid ore was poured into moulds carved out of stones to make axes and daggers, which were reheated and hammered to become strong. copper-tipped drills, chisels, punches and awls were also made. the bodies of deceased were buried far away from any village in wood coffins, except for kings, who were placed in large stone coffins after being wrapped in linen. buried with them were a few personal items, such as copper daggers, flat copper axes, and awls [small pointed tool for piercing holes in leather, wood, or other soft materials.]. the deceased was buried in a coffin with a stone on top deep in the earth to keep the spirit of the dead from coming out to haunt the living. it was learned that tin added to the copper made a stronger metal: bronze. stone hammers, and bronze and iron tools, were used to make cooking pots, weapons, breast plates, and horse bits, which were formed from moulds and/or forged by bronze smiths and blacksmiths from iron extracted from iron ore heated in bowlshaped hearths. typically one man operated the bellows to keep the fire hot while another did the hammering. bronze was made into sickles for harvesting, razors for shaving, tweezers, straight hair pins, safety pins for clothes, armlets, neck-rings, and mirrors. weapons included bows and arrows, flint and copper daggers, bronze swords and spears, stone axes, and shields of wood with bronze mountings. the bows and arrows probably evolved from spear throwing rods. kings in body armor fought with chariots drawn by two horses. the horse harnesses had bronze fittings. the chariots had wood wheels, later with iron rims. when bronze came into use, there was a demand for its constituent parts: copper and tin, which were traded by rafts on waterways and the sea. when iron came into use, there were wrought iron axes, saws, adzes [ax with curved blade used to dress wood], files, ploughshares, harrows [set of spikes to break clods of earth on plowed land and also to cover seed when sewn], scythes, billhooks [thick knife with hooked point used to prune shrubs], and spits for hearths. lead was mined. there was some glassmaking of beads. wrought iron bars were used as currency. hillforts now had wooden palisades on top of their banks to protect the enclosed farmsteads and villages from stock wandering off or being taken by rustlers, and from attacks by wild animals or other people. later a rampart was added from which sentries could patrol. these were supported by timber and/or stone structures. timbers were probably transported by carts or dragged by oxen. at the entrances were several openings only one of which really allowed entry. the others went between banks into dead ends and served as traps in which to kill the enemy from above. gates were of wood, some hung from hinges on posts which could be locked. later guard chambers were added, some with space for hearths and beds. sometimes further concentric circles of banks and ditches, and perhaps a second rampart, were added around these forts. they could reach to 14 acres. the ramparts are sufficiently widely spaced to make sling-shotting out from them highly effective, but to minimize the dangers from sling-shotting from without. the additional banks and ditches could be used to create cattle corridors or to protect against spear-thrown firebrands. however, few forts had springs of water within them, indicating that attacks on them were probably expected to be short. attacks usually began with warriors bristling with weapons and blowing war trumpets shouting insults to the foe, while their kings dashed about in chariots. sometimes champions from each side fought in single combat. the celts took the heads of those they killed to hang from their belts or place on wood spikes at the gates. prisoners, including women and children, might become slaves. kings sometimes lived in separate palisades where they kept their horses and chariots. circles of big stones like stonehenge were rebuilt so that the sun's position with respect to the stones would indicate the day of longest sunlight and the day of shortest sunlight. between these days there was an optimum time to harvest the crops before fall, when plants dried up and leaves fell from the trees. the winter solstice, when the days began to get longer was cause for celebration. in the next season, there was an optimum time to plant seeds so they could spring up from the ground as new growth. so farming gave rise to the concept of a year. certain changes of the year were celebrated, such as easter, named for the goddess of the dawn, which occurred in the east (after lent); may day celebrating the revival of life; lammas around july, when the wheat crop was ready for harvesting; and on october 31 the celtic eve of samhain, when the spirits of the dead came back to visit homes and demand food or else cast an evil spell on the refusing homes; and at which masked and costumed inhabitants representing the souls of the dead paraded to the outskirts of the settlements to lead the ghosts away from their homes; and at which animals and humans, who might be deemed to be possessed by spirits, were sacrificed or killed perhaps as examples, in huge bonfires [bonefires] as those assembled looked out for spirits and evil beings. there was an agricultural revolution from the two-field to the three-field system, in which there were three large fields for the heavy and fertile land. each field was divided into long and narrow strips. each strip represented a day's work with the plough. one field had wheat, or perhaps rye, another had barley, oats, beans, or peas, and the third was fallow. these were rotated yearly. there was a newly invented plough that was heavy and made of wood and later had an attached iron blade. the plough had a mould-board which caught the soil stirred by the plough blade and threw it into a ridge alongside the furrow dug by the plough blade. this plough was too heavy for two oxen and was pulled by a team of about eight to ten oxen. each ox was owned by a different man as was the plough, because no one peasant could afford the complete set. each freeman was allotted certain strips in each field to bear crops. his strips were far from each other, which insured some very fertile and some only fair soil, and some land near his village dwelling and some far away. these strips he cultivated, sowed with seed, and harvested for himself and his family. after the harvest, they reverted to common ownership for grazing by pigs, sheep, and geese. as soon as haymaking was over, the meadows became common grazingland for horses, cows, and oxen. not just any inhabitant, but usually only those who owned a piece of land in the parish were entitled to graze their animals on the common land, and each owner had this right of pasture for a definite number of animals. the faster horse replaced the ox as the primary work animal. other farm implements were: coulters, which gave free passage to the plough by cutting weeds and turf, picks, spades and shovels, reaping hooks and scythes, and sledge hammers and anvils. strips of land for agriculture were added from waste land as the community grew. waste lands were moors bristling with brushwood, or gorse, heather and wanton weeds, reed-coated marshes, quaking peat-bogs, or woods grown haphazard on sand or rock. with iron axes, forests could be cleared to provide more arable land. some villages had a smith, a wheelwright, and a cooper. there were villages which had one or two market days in each week. cattle, sheep, pigs, poultry, calves, and hare were sold there. london was a town on the thames river under the protection of the celtic river god lud: lud's town. it's huts were probably built over the water, as was celtic custom. it was a port for foreign trade. near the town was ludhill. flint workers mined with deer antler picks and ox shoulder blade shovels for flint to grind into axes, spearheads, and arrowheads. mine shafts were up to thirty feet deep and necessitated the use of chalk lamps fuelled by animal fat with wicks of moss. the flint was hauled up in baskets. common men and women were now buried in tombs within memorial burial mounds of earth with stone entrances and interior chambers. a man's weapons and shield were buried with him and a woman's spindle and weaving baton, and perhaps beads or pottery with her. at times, mounds of earth would simply be covered over piles of corpses and ashes in urns. in these mass graves, some corpses had spear holes or sword cuts, indicating death by violence. the druid priests, the learned class of the celts, taught the celts to believe in reincarnation of the soul after death of one body into another body. they also threw prized possessions into lakes and rivers as sacrifices to water gods. they placed images of gods and goddesses in shrines, which were sometimes large enough to be temples. with the ability to grow food and the acquisition of land by conquest by invading groups, the population grew. there were different classes of men. the freemen were eorls [noble freemen] or ceorls [ordinary free farmers]. slaves were not free. freemen had long hair and beards. slaves' hair was shorn from their heads so that they were bald. slaves were chained and often traded. prisoners taken in battle, especially native britons taken by invading groups, became slaves. a slave who was captured or purchased was a "theow". an "esne" was a slave who worked for hire. a "weallas" was a welsh slave. criminals became slaves of the person wronged or of the king. sometimes a father pressed by need sold his children or his wife into bondage. debtors, who increased in number during famine, which occurred regularly, became slaves by giving up the freeman's sword and spear, picking up a slave's mattock [pick ax for the soils], and placing their head within a lord's or lady's hands. they were called witetheows. the original meaning of the word lord was "loaf-giver". children with a slave parent were slaves. the slaves lived in huts around the homes of big landholders, which were made of logs and consisted on one large room or hall. an open hearth was in the middle of the earthen floor of the hall, which was strewn with rushes. there was a hole in the roof to let out the smoke. here the landholder and his men would eat meat, bread, salt, hot spiced ale, and mead while listening to minstrels sing about the heroic deeds of their ancestors. richer men drank wine. there were festivals which lasted several days, in which warriors feasted, drank, gambled, boasted, and slept where they fell. physical strength and endurance in adversity were admired traits. slaves often were used as grain grinders, ploughmen, sowers, haywards, woodwards, shepherds, goatherds, swineherds, oxherds, cowherds, dairymaids, and barnmen. slaves had no legal rights. a lord could kill his slave at will. a wrong done to a slave was regarded as done to his owner. if a person killed another man's slave, he had to compensate him with the slave's purchase price. the slave owner had to answer for the offences of his slaves against others, as for the mischief done by his cattle. since a slave had no property, he could not be fined for crimes, but was whipped, mutilated, or killed. during famine, acorns, beans, peas, and even bark were ground down to supplement flour when grain stocks grew low. people scoured the hedgerows for herbs, roots, nettles, and wild grasses, which were usually left for the pigs. sometimes people were driven to infanticide or group suicide by jumping together off a cliff or into the water. several large kingdoms came to replace the many small ones. the people were worshipping pagan gods when st. augustine came to england in 596 a.d. to christianize them. king aethelbert of kent [much later a county] and his wife, who had been raised christian on the continent, met him when he arrived. the king gave him land where there were ruins of an old city. augustine used stones from the ruins to build a church which was later called canterbury. he also built the first st. paul's church in london. aethelbert and his men who fought with him and ate and lived in his household [gesiths] became christian. a succession of princesses went out from kent to marry other saxon kings and convert them to christianity. augustine knew how to write, but king aethelbert did not. the king announced his laws at meetings of his people and his eorls would decide the punishments. there was a fine of 120s. for disregarding a command of the king. he and augustine decided to write down some of these laws, which now included the king's new law concerning the church. these laws concern personal injury, killing, theft, burglary, marriage, adultery, and inheritance. the blood feud's private revenge for killing had been replaced by payment of compensation to the dead man's kindred. one paid a man's "wergeld" [worth] to his kindred for causing his wrongful death. the wergeld [wer] of a king was an unpayable amount of about 7000s., of an aetheling [a king-worthy man of the extended royal family] was 1500s., of an eorl, 300s., of a ceorl, 100s., of a laet [agricultural worker in kent, which class was between free and slave], 40-80s., and of a slave nothing. at this time a shilling could buy a cow in kent or a sheep elsewhere. if a ceorl killed an eorl, he paid three times as much as an eorl would have paid as murderer. the penalty for slander was tearing out of the tongue. if an aetheling was guilty of this offense, his tongue was worth five times that of a coerl, so he had to pay proportionately more to ransom it. the crimes of murder, treachery to one's own lord, arson, house breaking, and open theft, were punishable by death and forfeiture of all property. the law "these are the dooms [decrees] which king aethelberht established in the days of augustine 1. [theft of] the property of god and of the church [shall be compensated], twelve fold; a bishop's property, eleven fold; a priest's property, nine fold; a deacon's property, six fold; a cleric's property, three fold; church frith [breach of the peace of the church; right of sanctuary and protection given to those within its precincts], two fold [that of ordinary breach of the public peace]; m....frith [breach of the peace of a meeting place], two fold. 2. if the king calls his leod [his people] to him, and any one there do them evil, [let him compensate with] a two-fold bot [damages for the injury], and 50 shillings to the king. 3. if the king drink at any one's home, and any one there do any lyswe [evil deed], let him make two-fold bot. 4. if a freeman steal from the king, let him repay nine fold. 5. if a man slay another in the king's tun [enclosed dwelling premises], let him make bot with 50 shillings. 6. if any one slay a freeman, 50 shillings to the king, as drihtin beah [payment to a lord in compensaton for killing his freeman]. 7. if the king's ambiht smith [smith or carpenter] or laad rine [man who walks before the king or guide or escort], slay a man, let him pay a half leod geld. 8. [offenses against anyone or anyplace under] the king's mund byrd [protection or patronage], 50 shillings. 9. if a freeman steal from a freeman, let him make threefold bot; and let the king have the wite [fine] and all the chattels [necessary to pay the fine]. (chattels was a variant of "cattle".) 10. if a man lie with the king's maiden [female servant], let him pay a bot of 50 shillings. 11. if she be a grinding slave, let him pay a bot of 25 shillings. the third [class of servant] 12 shillings. 12. let the king's fed esl [woman who serves him food or nurse] be paid for with 20 shillings. 13. if a man slay another in an eorl's tun [premises], let [him] make bot with 12 shillings. 14. if a man lie with an eorl's birele [female cupbearer], let him make bot with 12 shillings. 15. [offenses against a person or place under] a ceorl's mund byrd [protection], 6 shillings. 16. if a man lie with a ceorl's birele [female cupbearer], let him make bot with 6 shillings; with a slave of the second [class], 50 scaetts; with one of the third, 30 scaetts. 17. if any one be the first to invade a man's tun [premises], let him make bot with 6 shillings; let him who follows, with 3 shillings; after, each, a shilling. 18. if a man furnish weapons to another where there is a quarrel, though no injury results, let him make bot with 6 shillings. 19. if a weg reaf [highway robbery] be done [with weapons furnished by another], let him [the man who provided the weapons] make bot with 6 shillings. 20. if the man be slain, let him [the man who provided the weapons] make bot with 20 shillings. 21. if a [free] man slay another, let him make bot with a half leod geld [wergeld for manslaughter] of 100 shillings. 22. if a man slay another, at the open grave let him pay 20 shillings, and pay the whole leod within 40 days. 23. if the slayer departs from the land, let his kindred pay a half leod. 24. if any one bind a freeman, let him make bot with 20 shillings. 25. if any one slay a ceorl's hlaf aeta [loaf or bread eater; domestic or menial servant], let him make bot with 6 shillings. 26. if [anyone] slay a laet of the highest class, let him pay 80 shillings; of the second class, let him pay 60 shillings; of the third class, let him pay 40 shillings. 27. if a freeman commit edor breach [breaking through the fenced enclosure and forcibly entering a ceorl's dwelling], let him make bot with 6 shillings. 28. if any one take property from a dwelling, let him pay a three fold bot. 29. if a freeman goes with hostile intent through an edor [the fence enclosing a dwelling], let him make bot with 4 shillings. 30. if [in so doing] a man slay another, let him pay with his own money, and with any sound property whatever. 31. if a freeman lie with a freeman's wife, let him pay for it with his wer geld, and obtain another wife with his own money, and bring her to the other [man's dwelling]. 32. if any one thrusts through the riht ham scyld [legal means of protecting one's home], let him adequately compensate. 33. if there be feax fang [seizing someone by the hair], let there be 50 sceatts for bot. 34. if there be an exposure of the bone, let bot be made with 3 shillings. 35. if there be an injury to the bone, let bot be made with 4 shillings. 36. if the outer hion [outer membrane covering the brain] be broken, let bot be made with 10 shillings. 37. if it be both [outer and inner membranes covering the brain], let bot be made with 20 shillings. 38. if a shoulder be lamed, let bot be made with 30 shillings. 39. if an ear be struck off, let bot be made with 12 shillings. 40. if the other ear hear not, let bot be made with 25 shillings. 41. if an ear be pierced, let bot be made with 3 shillings. 42. if an ear be mutilated, let bot be made with 6 shillings. 43. if an eye be [struck] out, let bot be made with 50 shillings. 44. if the mouth or an eye be injured, let bot be made with 12 shillings. 45. if the nose be pierced, let bot be made with 9 shillings. 46. if it be one ala, let bot be made with 3 shillings. 47. if both be pierced, let bot be made with 6 shillings. 48. if the nose be otherwise mutilated, for each [cut, let] bot be made with 6 shillings. 49. if it be pierced, let bot be made with 6 shillings. 50. let him who breaks the jaw bone pay for it with 20 shillings. 51. for each of the four front teeth, 6 shillings; for the tooth which stands next to them 4 shillings; for that which stands next to that, 3 shillings; and then afterwards, for each a shilling. 52. if the speech be injured, 12 shillings. if the collar bone be broken, let bot be made with 6 shillings. 53. let him who stabs [another] through an arm, make bot with 6 shillings. if an arm be broken, let him make bot with 6 shillings. 54. if a thumb be struck off, 20 shillings. if a thumb nail be off, let bot be made with 3 shillings. if the shooting [fore] finger be struck off, let bot be made with 8 shillings. if the middle finger be struck off, let bot be made with 4 shillings. if the gold [ring]finger be struck off, let bot be made with 6 shillings. if the little finger be struck off, let bot be made with 11 shillings. 55. for every nail, a shilling. 56. for the smallest disfigurement of the face, 3 shillings; and for the greater, 6 shillings. 57. if any one strike another with his fist on the nose, 3 shillings. 58. if there be a bruise [on the nose], a shilling; if he receive a right hand bruise [from protecting his face with his arm], let him [the striker] pay a shilling. 59. if the bruise [on the arm] be black in a part not covered by the clothes, let bot be made with 30 scaetts. 60. if it be covered by the clothes, let bot for each be made with 20 scaetts. 61. if the belly be wounded, let bot be made with 12 shillings; if it be pierced through, let bot be made with 20 shillings. 62. if any one be gegemed [pregnant], let bot be made with 30 shillings. 63. if any one be cear wund [badly wounded], let bot be made with 3 shillings. 64. if any one destroy [another's] organ of generation [penis], let him pay him with 3 leod gelds: if he pierce it through, let him make bot with 6 shillings; if it be pierced within, let him make bot with 6 shillings. 65. if a thigh be broken, let bot be made with 12 shillings; if the man become halt [lame], then friends must arbitrate. 66. if a rib be broken, let bot be made with 3 shillings. 67. if [the skin of] a thigh be pierced through, for each stab 6 shillings; if [the wound be] above an inch [deep], a shilling; for two inches, 2; above three, 3 shillings. 68. if a sinew be wounded, let bot be made with 3 shillings. 69. if a foot be cut off, let 50 shillings be paid. 70. if a great toe be cut off, let 10 shillings be paid. 71. for each of the other toes, let one half that for the corresponding finger be paid. 72. if the nail of a great toe be cut off, 30 scaetts for bot; for each of the others, make bot with 10 scaetts. 73. if a freewoman loc bore [with long hair] commit any leswe [evil deed], let her make a bot of 30 shillings. 74. let maiden bot [compensation for injury to an unmarried woman] be as that of a freeman. 75. for [breach of] the mund [protection] of a widow of the best class, of an eorl's degree, let the bot be 50 shillings; of the second, 20 shillings; of the third, 12 shillings; of the fourth, 6 shillings. 76. if a man carry off a widow not under his own protection by right, let the mund be twofold. 77. if a man buy a maiden with cattle, let the bargain stand, if it be without fraud; but if there be fraud, let him bring her home again, and let his property be restored to him. 78. if she bear a live child, she shall have half the property, if the husband die first. 79. if she wish to go away with her children, she shall have half the property. 80. if the husband wish to keep them [the children], [she shall have the same portion] as one child. 81. if she bear no child, her paternal kindred shall have the fioh [her money and chattels] and the morgen gyfe [morning gift: a gift made to the bride by her husband on the morning following the consummation of the marriage]. 82. if a man carry off a maiden by force, let him pay 50 shillings to the owner, and afterwards buy [the object of] his will from the owner. 83. if she be betrothed to another man in money [at a bride price], let him [who carried her off] make bot with 20 shillings. 84. if she become gaengang [pregnant], 35 shillings; and 15 shillings to the king. 85. if a man lie with an esne's wife, her husband still living, let him make twofold bot. 86. if one esne slay another unoffending, let him pay for him at his full worth. 87. if an esne's eye and foot be struck out or off, let him be paid for at his full worth. 88. if any one bind another man's esne, let him make bot with 6 shillings. 89. let [compensation for] weg reaf [highway robbery] of a theow [slave] be 3 shillings. 90. if a theow steal, let him make twofold bot [twice the value of the stolen goods]." judicial procedure the king and his freemen would hear and decide cases of wrongful behavior such as breach of the peace. punishment would be given to the offender by the community. there were occasional meetings of "hundreds", which were 100 households, to settle wide-spread disputes. the chief officer was "hundreder" or "constable". he was responsible for keeping the peace of the hundred. the druid priests decided all disputes of the celts. chapter 2 the times: 600-900 the country was inhabited by anglo-saxons. the french called it "angleterre", which means the angle or end of the earth. it was called "angle land", which later became "england". a community was usually an extended family. its members lived a village in which a stone church was the most prominent building. they lived in one-room huts with walls and roofs made of wood, mud, and straw. hangings covered the cracks in the walls to keep the wind out. smoke from a fire in the middle of the room filtered out of cracks in the roof. grain was ground at home by rotating by hand one stone disk on another stone disk. some villages had a mill powered by the flow of water or by horses. all freeholders had the duty of watch [at night] and ward [during the day], of following the hue and cry to chase an offender, and of taking the oath of peace. these three duties were constant until 1195. farmland surrounded the villages and was farmed by the community as a whole under the direction of a lord. there was silver, copper, iron, tin, gold, and various types of stones from remote lead mines and quarries in the nation. silver pennies replaced the smaller scaetts. freemen paid "scot" and bore "lot" according to their means for local purposes. everyone in the village went to church on sunday and brought gifts such as grain to the priest. later, contributions in the form of money became customary, and then expected. they were called "tithes" and were spent for church repair, the clergy, and poor and needy laborers. local custom determined the amount. there was also church-scot: a payment to the clergy in lieu of the first fruits of the land. the priest was the chaplain of a landlord and his parish was coextensive with that landlord's holding and could include one to several villages. the priest and other men who helped him, lived in the church building. some churches had lead roofs and iron hinges, latches, and locks on their doors. the land underneath had been given to the church by former kings and persons who wanted the church to say prayers to help their souls go from purgatory to heaven and who also selected the first priest. the priest conducted christianized easter ceremonies in the spring and (christ's mass) ceremonies in winter in place of the pagan yuletide festivities. burning incense took the place of pagan burnt animal offerings, which were accompanied by incense to disguise the odor of burning flesh. holy water replaced haunted wells and streams. christian incantations replaced sorcerer's spells. nuns assisted priests in celebrating mass and administering the sacraments. they alone consecrated new nuns. vestry meetings were community meetings held for church purposes. the people said their prayers in english, and the priest conducted the services in english. a person joined his hands in prayer as if to offer them for binding together in submission. the church baptized babies and officiated or gave blessings at marriage ceremonies. it also said prayers for the dying, gave them funerals, and buried them. there were burial service fees, candle dues, and plough alms. a piece of stone with the dead person's name marked his grave. it was thought that putting the name on the grave would assist identification of that person for being taken to heaven. the church heard the last wish or will of the person dying concerning who he wanted to have his property. the church taught that it was not necessary to bury possessions with the deceased. the church taught boys and girls. every man carried a horn slung on his shoulder as he went about his work so that he could at once send out a warning to his fellow villagers or call them in chasing a thief or other offender. the forests were full of outlaws, so strangers who did not blow a horn to announce themselves were presumed to be fugitive offenders who could be shot on sight. an eorl could call upon the ceorl farmers for about forty days to fight off an invading group. there were several kingdoms, whose boundaries kept changing due to warfare, which was a sin according to the church. they were each governed by a king and witan of wise men who met at a witanegemot, which was usually held three times a year, mostly on great church festivals and at the end of the harvest. the king and witan chose the witan's members of bishops, eorldormen, and thegns [landholding farmers]. the king and hereditary claims played a major part in the selection of the eorldormen, who were the highest military leaders and often of the royal family. they were also chief magistrates of large jurisdictional areas of land. the witan included officers of the king's household and perhaps other of his retinue. there was little distinction then between his gesith, fighting men, guards, household companions, dependents, and servants. the king was sometimes accompanied by his wife and sons at the witanagemot. a king was selected by the witan according to his worthiness, usually from among the royal family, and could be deposed by it. the witan and king decided on laws, taxes, and transfers of land. they made determinations of war and peace and directed the army and the fleet. the king wore a crown or royal helmet. he extended certain protections by the king's peace. he could erect castles and bridges and could provide a special protection to strangers. a king had not only a wergeld to be paid to his family if he were killed, but a "cynebot" of equal amount that would be paid to his kingdom's people. a king's household had a chamberlain for the royal bedchamber, a marshall to oversee the horses and military equipment, a steward as head of household, and a cupbearer. the king had income from fines for breach of his peace; fines and forfeitures from courts dealing with criminal and civil cases; salvage from ship wrecks; treasure trove [assets hidden or buried in times of war]; treasures of the earht such as gold and silver; mines; saltworks; tolls and other dues of markets, ports, and the routes by land and by river generally; heriot from heirs of his special dependents for possession of land (usually in kind, principally in horses and weapons). he also had rights of purveyance [hospitality and maintenance when traveling]. the king had private lands, which he could dispose of by his will. he also had crown lands, which belonged to his office and could not be alienated without consent of the witan. crown lands often included palaces and their appendant farms, and burhs. it was a queen's duty to run the royal estate. also, a queen could possess, manage, and dispose of lands in her name. violent queens waged wars. kingdoms were often allied by marriage between their royal families. there were also royal marriages to royalty on the continent. the houses of the wealthy had ornamented silk hangings on the walls. some had fine white ox horn shaved so thin they were transparent for windows. brightly colored drapery, often purple, and fly nets surrounded their beds, which were covered with the fur of animals. they slept in bed clothes on pillows stuffed with straw. tables plated with silver and gems held silver candlesticks, gold and silver goblets and cups, and lamps of gold, silver, or glass. they used silver mirrors and silver writing pens. there were covered seats, benches, and footstools with the head and feet of animals at their extremities. they ate from a table covered with a cloth. servants brought in food on spits, from which they ate. food was boiled, broiled, or baked. the wealthy ate wheat bread and others ate barley bread. ale made from barley was passed around in a cup. mead made from honey was also drunk. men wore long-sleeved wool and linen garments reaching almost to the knee, around which they wore a belt tied in a knot. men often wore a gold ring on the fourth finger of the right hand. leather shoes were fastened with leather thongs around the ankle. their hair was parted in the middle and combed down each side in waving ringlets. the beard was parted in the middle of the chin, so that it ended in two points. the clergy did not wear beards. great men wore gold-embroidered clothes, gilt buckles and brooches, and drank from drinking horns mounted in silver gilt or in gold. wellto-do women wore brightly colored robes with waist bands, headbands, necklaces, gem bracelets, and rings. their long hair was in ringlets and they put rouge on their cheeks. they had beads, pins, needles, tweezers of bronze, and workboxes of bronze, some highly ornamented. they were often doing needlework. silk was affordable only by the wealthy. most families kept a pig and pork was the primary meat. there were also sheep, goats, cows, deer, hare, and fowl. fowl was obtained by fowlers who trapped them. the inland waters yielded eels, salmon, and trout. in the fall, meat was salted to preserve it for winter meals. there were orchards growing figs, nuts, grapes, almonds, pears, and apples. also produced were beans, lentils, onions, eggs, cheese, and butter. pepper and cinnamon were imported. fishing from the sea yielded herrings, sturgeon, porpoise, oysters, crabs, and other fish. sometimes a whale was driven into an inlet by a group of boats. whale skins were used to make ropes. the roads were not much more than trails. they were often so narrow that two pack horses could hardly pass each other. the pack horses each carried two bales or two baskets slung over their backs, which balanced each other. the soft soil was compacted into a deep ditch which rains, floods, and tides, if near the sea, soon turned into a river. traveling a far distance was unsafe as there were robbers on the roads. traveling strangers were distrusted. it was usual to wash one's feet in a hot tub after traveling and to dry them with a rough wool cloth. there were superstitions about the content of dreams, the events of the moon, and the flights and voices of birds were often seen as signs or omens of future events. herbal mixtures were drunk for sickness and maladies. from the witch hazel plant was made a mild alcoholic astringent, which was probably used to clean cuts and sooth abraisons. in the peaceful latter part of the 600s, theodore, who had been a monk in rome, was appointed archbishop and visited all the island speaking about the right rule of life and ordaining bishops to oversee the priests. each kingdom was split up into dioceses each with one bishop. thereafter, bishops were selected by the king and his witan, usually after consulting the clergy and even the people of the diocese. the bishops came to be the most permanent element of society. they had their sees in villages or rural monasteries. the bishops came to have the same wergeld as an eorldorman: 1200s., which was the price of about 500 oxen. a priest had the wergeld as a landholding farmer [thegn], or 300s. the bishops spoke latin, but the priests of the local parishes spoke english. theodore was the first archbishop whom all the english church obeyed. he taught sacred and secular literature, the books of holy writ, ecclesiastical poetry, astronomy, arithmetic, and sacred music. theodore discouraged slavery by denying christian burial to the kidnapper and forbidding the sale of children over the age of seven. a slave became entitled to two loaves a day and to his holydays. a slave was allowed to buy his or his children's freedom. in 673, theodore started annual national ecclesiastical assemblies, for instance for the witnessing of important actions. the bishops, some abbots, the king, and the eorldormen were usually present. from them the people learned the benefit of common national action. there were two archbishops: one of canterbury in the south and one of york in the north. they governed the bishops and could meet with them to issue canons that would be equally valid all over the land. a bishop's house contained some clerks, priests, monks, and nun and was a retreat for the weary missionary and a school for the young. the bishop had a deacon who acted as a secretary and companion in travel, and sometimes as an interpreter. ink was made from the outer husks of walnuts steeped in vinegar. the learned ecclesiastical life flourished in monastic communities, in which both monks and nuns lived. hilda, a noble's daughter, became the first nun in northumbria and abbess of one of its monasteries. there she taught justice, piety, chastity, peace, and charity. several monks taught there later became bishops. kings and princes often asked her advice. many abbesses came to run monastic communities; they were from royal families. women, especially from royal families, fled to monasteries to obtain shelter from unwanted marriage or to avoid their husbands. kings and eorldormen retired to them. danish vikings made several invasions in the 800s for which a danegeld tax on land was assessed on everyone every ten to twenty years. the amount was determined by the witan and was typically 2s. per hide of land. (a hide was probably the amount of land which could support a family or household for a year or as much land as could be tilled annually by a single plow.) it was stored in a strong box under the king's bed. king alfred the great, who had lived for awhile in rome, unified the country to defeat the invaders. he established fortifications called "burhs", usually on hill tops or other strategic locations on the borders to control the main road and river routes into his realm. the burhs were seminal towns. they were typically walled enclosures with towers and an outer ditch and mound, instead of the hedge or fence enclosure of a tun. inside were several wooden thatched huts and a couple of churches, which were lit by earthen oil lamps. the populace met at burh-gemots. the land area protected by each burh became known as a "shire", which means a share of a larger whole. the shire or local landowners were responsible for repairing the burh fortifications. there were about thirty shires. alfred gathered together fighting men who were at his disposal, which included eorldormen with their hearthbands (retinues of men each of whom had chosen to swear to fight to the death for their eorldorman, and some of whom were of high rank), the king's thegns, shire thegns (local landholding farmers, who were required to bring fighting equipment such as swords, helmets, chainmail, and horses), and ordinary freemen, i.e. ceorls (who carried food, dug fortifications, and sometimes fought). since the king was compelled to call out the whole population to arms, the distinction between the king's thegns from other landholders disappeared. some great lords organized men under them, whom they provisioned. these vassals took a personal oath to their lord "on condition that he keep me as i am willing to deserve, and fulfill all that was agreed on when i became his man, and chose his will as mine." alfred had a small navy of longships with 60 oars to fight the viking longships. alfred divided his army into two parts so that one half of the men were fighting while the other half was at home sowing and harvesting for those fighting. thus, any small-scale independent farming was supplanted by the open-field system, cultivation of common land, more large private estates headed by a lord, and a more stratified society in which the king and important families more powerful and the peasants more curtailed. the witan became mere witnesses. many free coerls of the older days became bonded. the village community tended to become a large private estate headed by a lord. but the lord does not have the power to encroach upon the rights of common that exist within the community. in 886, a treaty between alfred and the vikings divided the country along the war front and made the wergeld of every free farmer, whether english or viking, 200s. men of higher rank were given a wergeld of 4 1/2 marks of pure gold. a mark was probably a viking denomination and a mark of gold was equal to nine marks of silver in later times and probably in this time. the word "earl" replaced the word "eorldormen" and the word "thegn" replaced the word "aetheling" after the danish settlement. the ironed pleats of viking clothing indicated a high status of the wearer. the vikings brought combs and the practice of regular hair-combing to england. king alfred gave land with jurisdictional powers within its boundaries such as the following: "this is the bequest which king alfred make unequivocally to shaftesbury, to the praise of god and st. mary and all the saints of god, for the benefit of my soul, namely a hundred hides as they stand with their produce and their men, and my daughter aethelgifu to the convent along with the inheritance, since she took the veil on account of bad health; and the jurisdiction to the convent, which i myself possessed, namely obstruction and attacks on a man's house and breach of protection. and the estates which i have granted to the foundation are 40 hides at donhead and compton, 20 hides at handley and gussage 10 hides at tarrant, 15 hides at iwerve and 15 hides at fontmell. the witnesses of this are edward my son and archbishop aethelred and bishop ealhferth and bishop aethelhead and earl wulfhere and earl eadwulf and earl cuthred and abbot tunberht and milred my thegn and aethelwulf and osric and brihtulf and cyma. if anyone alters this, he shall have the curse of god and st. mary and all the saints of god forever to all eternity. amen." sons usually succeeded their fathers on the same land as shown by this lifetime lease: "bishop denewulf and the community at winchester lease to alfred for his lifetime 40 hides of land at alresford, in accordance with the lease which bishop tunbriht had granted to his parents and which had run out, on condition that he renders every year at the autumnal equinox three pounds as rent, and church dues, and the work connected with church dues; and when the need arises, his men shall be ready both for harvesting and hunting; and after his death the property shall pass undisputed to st. peter's. these are the signatures of the councilors and of the members of the community who gave their consent, namely ..." alfred invented a graduated candle with spaces indicating one hour of burning, which could be used as a clock. he used a ventilated cow's horn to put around the top of the candle to prevent its blowing out, and then devised a wooden lantern with a horn window. he described the world as like a yolk in the middle of an egg whose shell moves around it. this agreed with the position of ptolemy claudius of alexandria, who showed the curvature of the earth from north to south by observing that the polar star was higher in the north and lower in the south. that it was curved from east to west followed from the observation that two clocks placed one west and one east would record a different time for the same eclipse of the moon. alfred wrote poems on the worthiness of wisdom and knowledge in preference to material pleasures, pride, and fame, in dealing with life's sorrow and strife. his observations on human nature and his proverbs include: 1. as one sows, so will he mow. 2. every man's doom [judgment] returns to his door. 3. he who will not learn while young, will repent of it when old. 4. weal [prosperity] without wisdom is worthless. 5. though a man had 70 acres sown with red gold, and the gold grew like grass, yet he is not a whit the worthier unless he gain friends for himself. 6. gold is but a stone unless a wise man has it. 7. it's hard to row against the sea flood; so it is against misfortune. 8. he who toils in his youth to win wealth, so that he may enjoy ease in his old age, has well bestowed his toil. 9. many a man loses his soul through silver. 10. wealth may pass away, but wisdom will remain, and no man may perish who has it for his comrade. 11. don't choose a wife for her beauty nor for wealth, but study her disposition. 12. many an apple is bright without and bitter within. 13. don't believe the man of many words. 14. with a few words a wise man can compass much. 15. make friends at market, and at church, with poor and with rich. 16. though one man wielded all the world, and all the joy that dwells therein, he could not therewith keep his life. 17. don't chide with a fool. 18. a fool's bolt is soon shot. 19. if you have a child, teach it men's manners while it is little. if you let him have his own will, he will cause you much sorrow when he comes of age. 20. he who spares the rod and lets a young child rule, shall rue it when the child grows old. 21. either drinking or not drinking is, with wisdom, good. 22. be not so mad as to tell your friend all your thoughts. 23. relatives often quarrel together. 24. the barkless dog bites ill. 25. be wise of word and wary of speech, then all shall love you. 26. we may outride, but not outwit, the old man. 27. if you and your friend fall out, then your enemy will know what your friend knew before. 28. don't choose a deceitful man as a friend, for he will do you harm. 29. the false one will betray you when you least expect it. 30. don't choose a scornful false friend, for he will steal your goods and deny the theft. 31. take to yourself a steadfast man who is wise in word and deed; he will prove a true friend in need. to restore education and religion, alfred disseminated the anglosaxon chronicles; the venerable bede's ecclesiastical history of the english nation; the "consolidation of philosophy" by roman philosopher boethius, which related the use of adversity to develop the soul, and described the goodness of god and how the highest happiness comes from spiritual values and the soul, which are eternal, rather than from material or earthly pursuits, which are temporal; and pope gregory's pastoral care, which he had translated into english and was the fundamental book on the duty of a bishop, which included a duty to teach laymen; and orosius' history of the world, which he had translated into english. alfred's advice to pastors was to live as they had been taught from books and to teach this manner of life to others. to be avoided was pride, the mind's deception of seeking glory in the name of doing good works, and the corruption of high office. bede was england's first scholar, first theologian, and first historian. he wrote poetry, theological books, homilies, and textbooks on grammar, rhetoric [public speaking and debating], arithmetic, and astronomy. he adhered to the doctrine that death entered the world by the sin of adam, the first man. he began the practice of dating years from the birth of christ and believed that the earth was round. over the earth was a fiery spherical firmament. above this were the waters of the heavens. above this were the upper heavens, which contained the angels and was tempered with ice. he declared that comets portend downfalls of kingdoms, pestilence, war, winds, or heat. this reflected the church's view that a comet was a ball of fire flung from the right hand of an angry god as a warning to mankind, usually for disbelief. storms were begun by the devil. a famous poem, the oral legend of beowulf, a hero who led his men into adventures and performed great feats and fought monsters and dragons, was put into writing with a christian theme. in it, loyalty to one's lord is a paramount virtue. also available in writing was the story of king arthur's twelve victorious battles against the pagan saxons, authored by nennius. there were professional story tellers attached to great men. others wandered from court to court, receiving gifts for their story telling. men usually told oral legends of their own feats and those of their ancestors after supper. alfred had monasteries rebuilt with learned and moral men heading them. he built a nunnery which was headed by his daughter as prioress. he built a strong wall with four gates around london, which he had taken into his control. he appointed his son-in-law, who was one of his eorldormen, to be alderman [older man] to govern london and to be the shire's earl. a later king built a palace in london, although winchester was still the royal capital town. when the king traveled, he and his retinue were fed by the local people at their expense. after alfred's death, his daughter aethelflared ruled the country for seven years. she had more fortified burhs built and led soldiers to victories. under the royalty were the nobles. an earl headed each shire as representative of the king. the term "earl" came to denote an office instead of a nobleman. he led the array of his shire to do battle if the shire was attacked. he executed all royal commands. an earl received grants of land and could claim hospitality and maintenance for himself, his officers, and his servants. he presided over the shire court. he received one-third of the fines from the profits of justice and collected as well a third of the revenues derived from tolls and duties levied in the boroughs of his shire. the office tended to be hereditary. royal representatives called "reeves" started to assist them. the reeve took security from every person for the maintenance of the public peace. he also tracked cattle thieves, brought suspects to court, gave judgments according to the doom books, and delivered offenders to punishment. under the earls were the thegns. by service to the king, it was possible for a coerl to rise to become a thegn and to be given land by the king. other thegns performed functions of magistrates. a thegn was later identified as a person with five hides of land, a kitchen, a church, a bell house, a judicial place at the burhgemot [a right of magistracy], and an appointment in the king's hall. he was bound to to service in war by virtue of his landholding instead of by his relationship to the king. nobility was now a territorial attribute, rather than one of birth. the wergeld of a thegn was 1200s. when that of a ceorl or ordinary freeman was 200s. the wergeld of an earl or bishop was four times that of a thegn: 5800s. the wergeld of a king or archbishop was six times that of a thegn: 7200s. the higher a man's wergeld, the higher was his legal status in the scale of punishment, giving credible evidence, and participation in legal proceedings. the sokemen were freemen who had inherited their own land, chose their own lord, and attended and were subject to their lord's court. that is, their lord has soke [soc] jurisdiction over them. a ceorl typically had a single hide of land. a smallholder rented land of about 30 acres from a landlord, which he paid by doing work on the lord's demesne [household or messuage] land, paying money rent, or paying a food rent such as in eggs or chickens. smallholders made up about two fifths of the population. a cottager had one to five acres of land and depended on others for his living. among these were shepherds, ploughmen, swineherds, and blacksmiths. they also participated in the agricultural work, especially at harvest time. it was possible for a thegn to become an earl, probably by the possession of forty hides. he might even acquire enough land to qualify him for the witan. women could be present at the witenagemot and shire-gemot [meeting of the people of the shire]. they could sue and be sued in the courts. they could independently inherit, possess, and dispose of property. a wife's inheritance was her own and under no control of her husband. marriage required the consent of the lady and her friends. the man also had to arrange for the foster lean, that is, remuneration for rearing and support of expected children. he also declared the amount of money or land he would give the lady for her consent, that is, the morgengift, and what he would bequeath her in case of his death. it was given to her on the morning after the wedding night. the family of the bride was paid a "mund" for transferring the rightful protection they possessed over her to the family of the husband. if the husband died and his kindred did not accept the terms sanctioned by law, her kindred could repurchase the rightful protection. if she remarried within a year of his death, she had to forfeit the morgengift and his nearest kin received the lands and possessions she had. the word for man was "waepnedmenn" or weaponed person. a woman was "wifmenn" or wife person, with "wif" being derived from the word for weaving. great men and monasteries had millers, smiths, carpenters, architects, agriculturists, fishermen, weavers, embroiders, dyers, and illuminators. for entertainment, minstrels sang ballads about heroes or bible stories, harpers played, jesters joked, and tumblers threw and caught balls and knives. there was gambling, dice games, and chasing deer with hounds. fraternal guilds were established for mutual advantage and protection. a guild imposed fines for any injury of one member by another member. it assisted in paying any murder fine imposed on a member. it avenged the murder of a member and abided by the consequences. it buried its members and purchased masses for his soul. mercantile guilds in seaports carried out commercial speculations not possible by the capital of only one person. there were some ale houses, probably part of certain dwellings. the law alfred issued a set of laws to cover the whole country, which were drawn from the best laws of each region. there was no real distinction between the concepts of law, morals, and religion. the importance of telling the truth and keeping one's word are expressed by this law: "1. at the first we teach that it is most needful that every man warily keep his oath and his wed. if any one be constrained to either of these wrongfully, either to treason against his lord, or to any unlawful aid; then it is juster to belie than to fulfil. but if he pledge himself to that which is lawful to fulfil, and in that belie himself, let him submissively deliver up his weapon and his goods to the keeping of his friends, and be in prison forty days in a king's tun: let him there suffer whatever the bishop may prescribe to him " let his kinsmen feed him, if he has no food. if he escapes, let him be held a fugitive and be excommunicate of the church. the word of a bishop and of the king were incontrovertible without an oath. the ten commandments were written down as this law: "the lord spake these words to moses, and thus said: i am the lord thy god. i led thee out of the land of the egyptians, and of their bondage. 1. love thou not other strange gods above me. 2. utter thou not my name idly, for thou shalt not be guiltless towards me if thou utter my name idly. 3. remember that thou hallow the rest day. work for yourselves six days, and on the seventh rest. for in six days, christ wrought the heavens and the earth, the seas, and all creatures that are in them, and rested on the seventh day: and therefore the lord hallowed it. 4. honor thy father and thy mother whom the lord hath given thee, that thou mayst be the longer living on earth. 5. slay thou not. 6. commit thou not adultery. 7. steal thou not. 8. say thou not false witness. 9. covet thou not thy neighbor's goods unjustly. 10. make thou not to thyself golden or silver gods." if any one fights in the king's hall, or draws his weapon, and he be taken; be it in the king's doom, either death, or life, as he may be willing to grant him. if he escape, and be taken again, let him pay for himself according to his wergeld, and make bot for the offence, as well wer as wite, according as he may have wrought. if a man fights before a king's ealdorman in the gemot, let him make bot with wer and wite as it may be right; and before this 120s. to the ealdorman as wite. if he disturbs the folkmote by drawing his weapon, 120s. to the ealdorman as wite. if any of this happens before a king's ealdorman's junior, or a king's priest, 30s. as wite. if any one fights in a ceorlish man's dwelling, let him make bot of 6s.to the ceorl. if he draws his weapon but doesn't fight, let it be half of that. if, however, either of these happens to a man with a wergeld of 600s., let it increase threefold of the ceorlish bot; and if to a man with a wergeld of 1200s., let it increase twofold of the bot of the man with a wergeld of 600s. breach of the king's dwelling [breaking and entering] shall be 120s.; an archbishop's, 90s.; any other bishop's, and an ealdorman's, 60s.;. a 1200s. wergeld man's, 30s.; a 600s. wergeld man's, 15s.; and a ceorl's 5s. if any one plot against the king's life, of himself, or by harbouring of exiles, or of his men; let him be liable with his life and in all that he has; or let him prove himself according to his lord's wer. if any one with a band or gang of men slays an unoffending man, let him who acknowledges the death-blow pay wer and wite. if the slain man had a wergeld of 200s, let every one who was of the gang pay 30s. as gang-bot. if he had a wergeld of 600s., let every one pay 60s. as gang-bot. if he had a wergeld of 1200s., let every one pay 120s. if a gang does this, and afterwards denies it on oath, let them all be accused, and let them then all pay the wer in common; and all, one wite, such as shall belong to the wer. if any one lends his weapon to another so he may kill some one with it, they may join together if they will in the wer. if they will not join together, let him who lent the weapon pay of the wer a third part, and of the wite a third part. with his lord a man may fight free of liability for homicide, if any one attack the lord: thus may the lord fight for his man. likewise, a man may fight with his born kinsman, if a man attack him wrongfully, except against his lord. and a man may fight free of liability for homicide, if he finds another with his lawful wife, within closed doors, or under one covering, or with his lawfully-born daughter, or with his lawfully-born sister, or with his mother, who was given to his father as his lawful wife. if a man knows his foe is sitting at his home, he may not fight with him before he demands justice of him. if he has such power that he can beset his foe, and besiege him within, let him keep him within for seven days, and not attack him if he will remains within. and, then, after seven days, if he surrenders, and gives up his weapons, let him be kept safe for thirty days, and let notice of him be given to his kinsmen and his friends. but if he does not have sufficient power to besiege him within, let him ride to the ealdorman, and beg aid of him. if he will not aid him, let him ride to the king before he fights. in like manner also, if a man come upon his foe, and he did not know beforehand that he was staying at his home; if he is willing to give up his weapons, let him be kept for thirty days, and let notice of him be given to his friends; if he will not give up his weapons, then he may attack him. if he is willing to surrender, and to give up his weapons, and any one after that attack him, let him pay as well wer as wound, as he may do, and wite, and let him have forfeited his compensation to his kin. every church shall have this peace: if a fugitive flee to one for sanctuary, no one may drag him out for seven days. if he is willing to give up his weapons to his foes, let him stay thirty days, and then let notice of him be given to his kinsmen. if any man confess in church any offences which had not been before revealed, let him be half forgiven. if a man from one holdgetael wishs to seek a lord in another holdgetael, let him do it with the knowledge of the ealdorman whom he before followed in his shire. if he does it without his knowledge, let him who treats him as his man pay 120s. as wite, one-half to the king in the shire where he before followed and one-half in that into which he comes. if he has done anything wrong where he was before, let him make bot for it who has there received him as his man; and to the king 120s. as wite. "if any one steals so that his wife and children don't know it, he shall pay 60 shillings as wite. but if he steals with the knowledge of all his household, they shall all go into slavery. a boy of ten years may be privy to a theft." "if one who takes a thief, or holds him for the person who took him, lets the thief go, or conceals the theft, he shall pay for the thief according to his wer. if he is an eorldormen, he shall forfeit his shire, unless the king is willing to be merciful to him." if any one steal in a church, let him pay the lawful penalty and the wite, and let the hand be struck off with which he did it. if he will redeem the hand, and that be allowed him, let him pay as may belong to his wer. if a man slanders another, the penalty is no lighter thing than that his tongue be cut out; which must not be redeemed at any cheaper rate than it is estimated at according to his wer. if one deceives an unbetrothed woman and sleep with her, he must pay for her and have her afterwards to wife. but if her father not approve, he should pay money according to her dowry. "if a man seize hold of the breast of a ceorlish woman, let him make bot to her with 5 shillings. if he throw her down and do not lie with her, let him make bot with 10 shillings. if he lie with her, let him make bot with 60 shillings. if another man had before lain with her, then let the bot be half that. ... if this befall a woman more nobly born, let the bot increase according to the wer." "if any one, with libidinous intent, seize a nun either by her raiment or by her breast without her leave, let the bot be twofold, as we have before ordained concerning a laywoman." "if a man commit a rape upon a ceorl's female slave, he must pay bot to the ceorl of 5 shillings and a wite [fine to the king] of 60 shillings. if a male theow rape a female theow, let him make bot with his testicles." for the first dog bite, the owner pays 6 shillings, for the second, 12 shillings, for the third, 30 shillings. an ox which gores someone to death shall be stoned. if one steals or slays another's ox, he must give two oxen for it. the man who has land left to him by his kindred must not give it away from his kindred, if there is a writing or witness that such was forbidden by those men who at first acquired it, and by those who gave it to him; and then let that be declared in the presence of the king and of the bishop, before his kinsmen. judicial procedure cases were held at monthly meetings of the hundred court. the king or one of his reeves, conducted the trial by compurgation. in compurgation, the one complaining, called the "plaintiff", and the one defending, called the "defendant", each told their story and put his hand on the bible and swore "by god this oath is clean and true". a slip or a stammer would mean he lost the case. otherwise, community members would stand up to swear on behalf of the plaintiff or the defendant as to their reputation for veracity. the value of a man's oath was commensurate with his value or wergeld. a man's brothers were usually his compurgators. if these "compurgators" were too few, usually twelve in number, or recited poorly, their party lost. if this process was inconclusive, the parties could bring witnesses to declare such knowledge as they had as neighbors. these witnesses, male and female, swore to particular points determined by the court. if the witnesses failed, the defendant was told to go to church and to take the sacrament only if he or she were innocent. if he or she took the sacrament, he or she was tried by the process of "ordeal", which was administered by the church. in the ordeal by cold water, he was given a drink of holy water and then bound hand and foot and thrown into water. if he floated, he was guilty. if he sank, he was innocent. it was not necessary to drown to be deemed innocent. in the ordeal by hot water, he had to pick up a stone from inside a boiling cauldron. if his hand was healing in three days, he was innocent. if it was festering, he was guilty. a similar ordeal was that of hot iron, in which one had to carry in his hands a hot iron for a certain distance. the results of the ordeal were taken to indicate the will of god. presumably a person convicted of murder, i.e. killing by stealth, or robbery [taking from a person's robe, that is, his person or breaking into his home to steal] would be hung and his possessions confiscated. a bishop's oath was incontrovertible. accused archbishops and bishops could clear themselves with an oath that they were guiltless. lesser ranks could clear themselves with the oaths of three compurgators of their rank or, for more serious offenses, undergo the ordeal of the consecrated morsel. for this, one would swallow a morsel; if he choked on it, he was guilty. any inanimate or animate object or personal chattel which was found by a court to be the immediate cause of death was forfeited as "deodand", for instance, a tree from which a man fell to his death, a beast which killed a man, a sword of a third party not the slayer that was used to kill a man. the deodand was to go to the dead man's kin so they could wreak their vengeance on it, which in turn would cause the dead man to lie in peace. this is a lawsuit regarding rights to feed pigs in a certain woodland: "in the year 825 which had passed since the birth of christ, and in the course of the second indiction, and during the reign of beornwulf, king of mercia, a council meeting was held in the famous place called clofesho, and there the said king beornwulf and his bishops and his earls and all the councilors of this nation were assembled. then there was a very noteworthy suit about wood pasture at sinton, towards the west in scirhylte. the reeves in charge of the pigherds wished to extend the pasture farther, and take in more of the wood than the ancient rights permitted. then the bishop and the advisors of the community said that they would not admit liability for more than had been appointed in aethelbald's day, namely mast for 300 swine, and that the bishop and the community should have two thirds of the wood and of the mast. the archbishop wulfred and all the councilors determined that the bishop and the community might declare on oath that it was so appointed in aethelbald's time and that they were not trying to obtain more, and the bishop immediately gave security to earl eadwulf to furnish the oath before all the councilors, and it was produced in 30 days at the bishop's see at worcester. at that time hama was the reeve in charge of the pigherds at sinton, and he rode until he reached worcester, and watched and observed the oath, as earl eadwulf bade him, but did not challenge it. here are the names and designations of those who were assembled at the council meeting ..." chapter 3 the times: 900-1066 there were many large landholders such as the king, earls, and bishops. earls were noblemen by birth, and often relatives of the king. they were his army commanders and the highest civil officials, each responsible for a shire. a breach of the public peace of an earl would occasion a fine. lower in social status were freemen: sokemen, and then, in decreasing order, villani [villeins], bordarii, and cottarii. the servi were the slaves. probably all who were not slaves were freemen. kings typically granted land in exchange for services of military duties, maintaining fortresses, and repairing bridges. less common services required by landlords include equipping a guard ship and guarding the coast, guarding the lord, military watch, maintaining the deer fence at the king's residence, alms giving, and church dues. since this land was granted in return for service, there were limitations on its heritability and often an heir had to pay a heriot to the landlord to obtain the land. a heriot was originally the armor of a man killed, which went to the king. the heriot of a thegn who had soken came to be about 80s.; of a kings' thegn about four lances, two coats of mail, two swords, and 125s.; of an earl about eight horses, four saddled and four unsaddled, eight lances, four coats of mail, four swords, and 500s. there were several thousand thegns, rich and poor, who held land directly of the king. some thegns had soken or jurisdiction over their own lands and others did not. free farmers who had sought protection from thegns in time of war now took them as their lords. a freeman could chose his lord, following him in war and working his land in peace. all able-bodied freemen were liable to military service in the fyrd [national militia], but not in a lord's private wars. in return, the lord would protect him against encroaching neighbors, back him in the courts of law, and feed him in times of famine. but often, lords raided each other's farmers, who fled into the hills or woods for safety. often a lord's fighting men stayed with him at his large house, but later were given land with inhabitants on it, who became his tenants. the lords were the ruling class and the greatest of them sat in the king's council along with bishops, abbots, and officers of the king's household. the lesser lords were local magnates, who officiated at the shire and hundred courts. stag-hunting, fox-hunting, and hawking were reserved for lords who did not work with their hands. every free born person had the right to hunt other game. there was a great expansion of arable land. some land had been specifically allocated to certain individuals. some was common land, held by communities. if a family came to pay the dues and fines on certain common land, it could become personal to that family and was then known as heir-land. most land came to be privately held from community-witnessed allotments or inheritance. book-land was those holdings written down in books. this land was usually land that had been given to the church or monasteries because church clerics could write. so many thegns gave land to the church, usually a hide, that the church held 1/3 of the land of the realm. folk-land was that land that was left over after allotments had been made to the freemen and which was not common land. it was public land and a national asset and could be converted to heir-land or book-land only by action of the king and witan. it could also be rented by services to the state via charter. a holder of folk-land might express a wish, e.g. by testamentary action, for a certain disposition of it, such as an estate for life or lives for a certain individual. but a distinct act by the king and witan was necessary for this wish to take effect. small private transactions of land could be done by "livery of seisin" in the presence of neighbors. all estates in land could be let, lent, or leased by its holders, and was then known as "loenland". ploughs and wagons could be drawn by four or more oxen or horses in sets of two behind each other. oxenshoes and horseshoes prevented lameness due to cracked hooves. horse collars especially fitted for horses, replaced oxen yoke that had been used on horses. a free holder's house was wood, perhaps with a stone foundation, and roofed with thatch or tiles. there was a main room or hall, with bed chambers around it. beyond was the kitchen, perhaps outside under a lean-to. these buildings were surrounded by a bank or stiff hedge. simple people lived in huts made from wood and mud, with one door and no windows. they slept around a wood-burning fire in the middle of the earthen floor. they wore shapeless clothes of goat hair and unprocessed wool from their sheep. they ate rough brown bread, vegetable and grain broth, ale from barley, bacon, beans, milk, cabbage, onion, apples, plums, cherries, and honey for sweetening or mead. vegetables grown in the country included onions, leeks, celery, lettuce, radish, carrots, garlic, shallots, parsnip, dill, chevil, marigold, coriander, and poppy. in the summer, they ate boiled or raw veal and wild fowl such as ducks, geese, or pigeons, and game snared in the forest. poultry was a luxury food, but recognized as therapeutic for invalids, especially in broth form [chicken soup]. venison was highly prized. there were still some wild boar, which were hunted with long spears, a greyhound dog, and hunting horns. they sometimes mated with the domestic pigs which roamed the woodlands. in september, the old and infirm pigs were slaughtered and their sides of bacon smoked in the rafters for about a month. their intestines provided skin for sausages. in the fall, cattle were slaughtered and salted for food during the winter because there was no more pasture for them. however, some cows and breed animals were kept through the winter. for their meals, people used wooden platters, sometimes earthenware plates, drinking horns, drinking cups from ash or alderwood turned on a foot-peddled pole lathe, and bottles made of leather. their bowls, pans, and pitchers were made by the potter's wheel. water could be boiled in pots made of iron, brass, lead, or clay. water could be carried in leather bags because leather working preservative techniques improved so that tanning prevented stretching or decaying. at the back of each hut was a hole in the ground used as a latrine, which flies frequented. moss was used for toilet-paper. parasitical worms in the stool were ubiquitous. most of the simple people lived in villages of about 20 homes circling a village green or lining a single winding lane. there were only first names, and these were usually passed down family lines. to grind their grain, the villagers used hand mills with crank and gear, or a communal mill, usually built of oak, driven by power transmitted through a solid oak shaft, banded with iron as reinforcement, to internal gear wheels of elm. almost every village had a watermill. it might be run by water shooting over or flowing under the wheel. clothing for men and women was made from coarse wool, silk, and linen and was usually brown in color. only the wealthy could afford to wear linen or silk. men also wore leather clothing, such as neckpieces, breeches, ankle leathers, shoes, and boots. boots were worn when fighting. they carried knives or axes under metal belts. they could carry items by tying leather pouches onto their belts with their drawstrings. they wore leather gloves for warmth and for heavy working with their hands. people were as tall, strong and healthy as in the late 1900s, not having yet endured the later malnourishment and overcrowding that was its worst in the 1700s and 1800s. their teeth were very healthy. most adults died in their 40s, after becoming arthritic from hard labor. people in their 50s were deemed venerable. boys of twelve were considered old enough to swear an oath of allegiance to the king. girls married in their early teens, often to men significantly older. the lands of the large landholding lords were administered by freemen. they had wheat, barley, oats, and rye fields, orchards, vineyards for wine, and bee-keeping areas for honey. on this land lived not only farm laborers, cattle herders, shepherds, goatherds, and pigherds, but craftsmen such as goldsmiths, hawkkeepers, dogkeepers, horsekeepers, huntsmen, foresters, builders, weaponsmiths, embroiders, bronze smiths, blacksmiths, watermill wrights, wheelwrights, wagon wrights, iron nail makers, potters, soap makers, tailors, shoemakers, salters (made salt at the "wyches", which later became towns ending with '-wich'), bakers, cooks, and gardeners. most men did carpentry work. master carpenters worked with ax, hammer, and saw to make houses, doors, bridges, milk buckets, washtubs, and trunks. blacksmiths made gates, huge door hinges, locks, latches, bolts, and horseshoes. the lord loaned these people land on which to live for their life, called a "life estate", in return for their services. the loan could continue to their widows or children who took up the craft. mills were usually powered by water. candles were made from beeswax, which exuded a bright and steady light and pleasant smell, or from mutton fat, which had an unpleasant odor. the wheeled plough and iron-bladed plough made the furrows. one man hald the plough and another walked with the oxen, coaxing them forward with a stick and shouts. seeds were held in an apron for seeding. farm implements included spades, shovels, rakes, hoes, buckets, barrels, flails, and sieves. plants were pruned to direct their growth and to increase their yield. everyone got together for feasts at key stages of the farming, such as the harvest. easter was the biggest feast. when the lord was in the field, his lady held their estate. there were common lands of these estates as well as of communities. any proposed new settler had to be admitted at the court of this estate. the land of some lords included fishing villages along the coasts. from the sea were caught herrings, salmon, porpoises, sturgeon, oysters, crabs, mussels, cockels, winkeles, plaice, flounder, and lobsters. sometimes whales were driven into an inlet by many boats. river fish included eels, pike, minnows, burbo, trout, and lampreys. they were caught by brushwood weirs, net, bait, hooks, and baskets. oysters were so numerous that they were eaten by the poor. the king's peace extended over the waterways. if mills, fisheries, weirs, or other structures were set up to block them, they were to be destroyed and a penalty paid to the king. other lords had land with iron-mining industries. ore was dug from the ground and combined with wood charcoal in a shaft furnace to be smelted into liquid form. wood charcoal was derived from controlled charring of the wood at high temperatures without using oxygen. this burned impurities from it and left a purer carbon, which burned better than wood. the pure iron was extracted from this liquid and formed into bars. to keep the fire hot, the furnaces were frequently placed at windswept crossings of valleys or on the tops of hills. some lords had markets on their land, for which they charged a toll [like a sales tax] for participation. there were about fifty markets in the nation. cattle and slaves (from the word "slav") were the usual medium of exchange. an ox still was worth about 30d. shaking hands was symbolic of an agreement for a sale, which had to be carried out in front of witnesses at the market for any property worth over 20d. the higher the value of the property, the more witnesses were required. witnesses were also required for the exchange of property and to vouch for cattle having being born on the property of a person claiming them. people traveled to markets on deep, sunken roads and narrow bridges kept in repair by certain men who did this work as their service to the king. the king's peace extended to a couple of high roads, i.e. highways, running the length of the country and a couple running its width. salt was used throughout the nation to preserve meat over the winter. inland saltworks had an elaborate and specialized organization. the chief one used saltpans and furnaces to extract salt from natural brine springs. they formed little manufacturing enclaves in the midst of agricultural land, and they were considered to be neither large private estates headed by a lord nor appurtenant to such. they belonged jointly to the king and the local earl, who shared, at a proportion of two to one, the proceeds of the tolls upon the sale of salt and methods of carriage on the ancient salt ways according to cartload, horse load, or man load. sometimes there were investors in a portion of the works who lived quite at distance away. the sales of salt were mostly retail, but some bought to resell. peddlers carried salt to sell from village to village. some smiths traveled for their work, for instance, stonewrights building arches and windows in churches, and lead workers putting lead roofs on churches. an example of a grant of hides of land is: "[god has endowed king edred with england], wherefore he enriches and honors men, both ecclesiastic and lay, who can justly deserve it. the truth of this can be acknowledged by the thegn aelfsige hunlafing through his acquisition of the estate of 5 hides at alwalton for himself and his heirs, free from every burden except the repair of fortifications, the building of bridges and military service; a prudent landowner church dues, burial fees and tithes. [this land] is to be held for all time and granted along with the things both great and small belonging to it." a bishop gave land to a faithful attendant for his life and two other lives as follows: "in 904 a.d., i, bishop werfrith, with the permission and leave of my honorable community in worcester, grant to wulfsige, my reeve, for his loyal efficiency and humble obedience, one hide of land at aston as herred held it, that is, surrounded by a dyke, for three lives and then after three lives the estate shall be given back without any controversy to worcester." at seaports on the coast, goods were loaded onto vessels owned by english merchants to be transported to other english seaports. london was a market town on the north side of the thames river and the primary port and trading center for foreign merchants. streets that probably date from this time include milk, bread, and wood streets, and honey lane. there were open-air markets such as billingsgate. there were wooden quays over much of the riverfront. houses were made of wood, with one sunken floor, or a ground floor with a cellar beneath. some had central stone hearths and earth latrines. there were crude pottery cooking pots, beakers and lamps, wool cloth, a little silk, simple leather shoes, pewter jewelry, looms, and quernstones (for grinding flour). wool, skins, hides, wheat, meal, beer, lead, cheese, salt, and honey were exported. wine (mostly for the church), fish, timber, pitch, pepper, garlic, spices, copper, gems, gold, silk, dyes, oil, brass, sulphur, glass, slaves, and elephant and walrus ivory were imported. goods from the continent were sold at open stalls in certain streets. furs and slaves were traded. there was a royal levy on exports by foreigners merchants. southwark was reachable by a bridge. it contained sleazy docks, prisons, gaming houses, and brothels. guilds in london were first associations of neighbors for the purposes of mutual assistance. they were fraternities of persons by voluntary compact to assist each other in poverty, including their widows or orphans and the portioning of poor maids, and to protect each other from injury. their essential features are and continue to be in the future: 1) oath of initiation, 2) entrance fee in money or in kind and a common fund, 3) annual feast and mass, 4) meetings at least three times yearly for guild business, 5), obligation to attend all funerals of members, to bear the body if need be from a distance, and to provide masses for the dead, 6) the duty of friendly help in cases of sickness, imprisonment, house burning, shipwreck, or robbery, 7) rules for decent behavior at meetings, and 8) provisions for settling disputes without recourse to the law. both the masses and the feast were attended by the women. frequently the guilds also had a religious ceremonial to affirm their bonds of fidelity. they readily became connected with the exercise of trades and with the training of apprentices. they promoted and took on public purposes such as the repairing of roads and bridges, the relief of pilgrims, the maintenance of schools and almshouses, and the periodic performance of pageants and miracle plays telling scriptural history, which could last for several days. the devil often was prominent in miracle plays. many of these london guilds were known by the name of their founding member. there were also frith guilds (peace guilds) and a knights' guild. the frith guild's main object was to enforce the king's laws, especially the prevalent problem of theft. they were especially established by bishops and reeves. members met monthly and contributed about 4d. to a common fund, which paid a compensation for items stolen. they each paid 1s. towards the pursuit of the thief. the members were grouped in tens. members with horses were to track the thief. members without horses worked in the place of the absent horseowners until their return. when caught, the thief was tried and executed. overwhelming force was used if his kindred tried to protect him. his property was used to compensate the victim for his loss and then divided between the thief's wife, if she was innocent, the king, and the guild. owners of slaves paid into a fund to give one half compensation to those who lost slaves by theft or escape, and recaptured slaves were to be stoned to death or hanged. the members of the peace guild also feasted and drank together. when one died, the others each sang a song or paid for the singing of fifty psalms for his soul and gave a loaf. the knights' guild was composed of thirteen military persons to whom king edgar granted certain waste land in the east of london, toward aldgate, and also portsoken, which ran outside the eastern wall of the city to the thames, for prescribed services performed, probably defense of the vulnerable east side of the city. this concession was confirmed by king edward the confessor in a charter at the suit of certain citizens of london, the successors of these knights. edward granted them sac and soke [cause and suit] jurisdiction over their men. edward the confessor made these rules for london: 1. be it known that within the space of three miles from all parts outside of the city a man ought not to hold or hinder another, and also should not do business with him if he wish to come to the city under its peace. but when he arrives in the city, then let the market be the same to the rich man as to the poor. 2. be it also known that a man who is from the court of the king or the barons ought not to lodge in the house of any citizen of london for three nights, either by privilege or by custom, except by consent of the host. for if he force the host to lodge him in his house and there be killed by the host, let the host choose six from his relatives and let him as the seventh swear that he killed him for the said cause. and thus he will remain quit of the murder of the deceased towards the king and relatives and lords of the deceased. 3. and after he has entered the city, let a foreign merchant be lodged wherever it please him. but if he bring dyed cloth, let him see to it that he does not sell his merchandise at retail, but that he sell not less than a dozen pieces at a time. and if he bring pepper, or cumin, or ginger, or alum, or brasil wood, or resin, or incense, let him sell not less than fifteen pounds at a time. but if he bring belts, let him sell not less than a thousand at a time. and if he bring cloths of silk, or wool or linen, let him see that he cut them not, but sell them whole. but if he bring wax, let him sell not less than one quartanum. also a foreign merchant may not buy dyed cloth, nor make the dye in the city, nor do any work which belongs by right to the citizens. 4. also no foreign merchant with his partner may set up any market within the city for reselling goods in the city, nor may he approach a citizen for making a bargain, nor may he stop longer in the city. every week in london there was a folkmote at st. paul's churchyard, where majority decision was a tradition. by 1032, it had lost much of its power to the husting [household assembly in danish] court. the folkmoot then had responsibility for order and was the sole authority for proclaiming outlaws. it met three times a year at st. paul's churchyard and there acclaimed the sheriff and justiciar, or if the king had chosen his officer, heard who was chosen and listened to his charge. it also yearly arranged the watch and dealt with risks of fire. it was divided into wards, each governed by an alderman who presided over the ward-mote, and represented his ward at the folk-mote. each guild became a ward. the chief alderman was the portreeve. london paid one-eighth of all the taxes of england. later in the towns, merchant guilds grew out of charity associations whose members were bound by oath to each other and got together for a guild feast every month. some traders of these merchant guilds became so prosperous that they became landholders. many market places were dominated by a merchant guild, which had a monopoly of the local trade. in the great mercantile towns all the land and houses would be held by merchants and their dependents, all freeholders were connected with a trade, and everyone who had a claim on public office or magistry would be a member of the guild. the merchant guild could admit into their guild country villeins, who became freemen if unclaimed by their lords for a year and a day. every merchant who had made three long voyages on his own behalf and at his own cost ranked as a thegn. there were also some craft guilds composed of handicraftsmen or artisans. escaped bonded agricultural workers, poor people, and traders without land migrated to towns to live, but were not citizens. towns were largely self-sufficient, but salt and iron came from a distance. the king's established in every shire at least one town with a market place where purchases would be witnessed and a mint where reliable money was coined by a moneyer. there were eight moneyers in london. coins were issued to be of value for only a couple of years. then one had to exchange them for newly issued ones at a rate of about 10 old for 8 or 9 new. the difference constituted a tax. roughly 10% of the people lived in towns. some took surnames such as tanner, weaver, or carpenter. some had affectionate or derisive nicknames such as clear-hand, fresh friend, soft bread, foul beard, money taker, or penny purse. craftsmen in the 1000s included goldsmiths, embroiderers, illuminators of manuscripts, and armorers. edward the confessor, named such for his piety, was a king of 24 years who was widely respected for his intelligence, resourcefulness, good judgment, and wisdom. his educated queen edith, whom he relied on for advice and cheerful courage, was a stabilizing influence on him. they were served by a number of thegns, who had duties in the household, which was composed of the hall, the courtyard, and the bedchamber. they were important men thegns by rank. they were landholders, often in several areas, and held leading positions in the shires. they were also priests and clerics, who maintained the religious services and performed tasks for which literacy was necessary. edward was the first king to have a "chancellor". he kept a royal seal and was the chief royal chaplain. he did all the secretarial work of the household and court, drew up and sealed the royal writs, conducted the king's correspondence, and kept all the royal accounts. the word "chancellor" signified a screen behind which the secretarial work of the household was done. he had the special duty of securing and administering the royal revenue from vacant benefices. the most important royal officers were the chamberlains, who took care of the royal bedchamber and adjoining wardrobe used for dressing and storage of valuables, and the priests. these royal officers had at first been responsible only for domestic duties, but gradually came to assume public administrative tasks. edward wanted to avoid the pressures and dangers of living in the rich and powerful city of london. so he rebuilt a monastic church, an abbey, and a palace at westminster about two miles upstream. he started the growth of westminster as a center of royal and political power; kings' councils met there. royal coronations took place at the abbey. since edward traveled a lot, he established a storehouse-treasury at winchester to supplement his traveling wardrobe. at this time, spanish stallions were imported to improve english horses. london came to have the largest and best-trained army in england. the court invited many of the greatest magnates and prelates [highest ecclesiastical officials, such as bishops] of the land to the great ecclesiastical festivals, when the king held more solemn courts and feasted with his vassals for several days. these included all the great earls, the majority of bishops, some abbots, and a number of thegns and clerics. edward had a witan of wise men to advise him, but sometimes the king would speak in the hall after dinner and listen to what comments were made from the mead-benches. as the court moved about the country, many men came to pay their respects and attend to local business. edward started the practice of king's touching people to cure them of scrofula, a disease which affected the glands, especially in the head and neck. it was done in the context of a religious ceremony. the main governmental activities were: war, collection of revenue, religious education, and administration of justice. for war, the shires had to provide a certain number of men and the ports quotas of ships with crews. the king was the patron of the english church. he gave the church peace and protection. he presided over church councils and appointed bishops. as for the administration of justice, the public courts were almost all under members of edward's court, bishops, earls, and reeves. edward's mind was often troubled and disturbed by the threat that law and justice would be overthrown, by the pervasiveness of disputes and discord, by the raging of wicked presumption, by money interfering with right and justice, and by avarice kindling all of these. he saw it as his duty to courageously oppose the wicked by taking good men as models, by enriching the churches of god, by relieving those oppressed by wicked judges, and by judging equitably between the powerful and the humble. he was so greatly revered that a comet was thought to accompany his death. the king established the office of the chancery to draft documents and keep records. it created the writ, which was a small piece of parchment addressed to a royal official or dependent commanding him to perform some task for the king. by the 1000s a.d., the writ contained a seal: a lump of wax with the impress of the great seal of england which hung from the bottom of the document. writing was done with a sharpened goose-wing quill. ink was obtained from mixing fluid from the galls made by wasps for their eggs on oak trees, rainwater or vinegar, gum arabic, and iron salts for color. a king's grant of land entailed two documents: a charter giving boundaries and conditions and a writ, usually addressed to the shire court, listing the judicial and financial privileges conveyed with the land. these were usually sac and soke [possession of jurisdiction of a private court of a noble or institution to execute the laws and administer justice over inhabitants and tenants of the estate], toll [right to have a market and to collect a payment on the sale of cattle and other property on the estate] and team [probably the right to hold a court to determine the honesty of a man accused of illegal possession of cattle or of buying stolen cattle by inquiring of the alleged seller or a warrantor, even if an outsider], and infangenetheof [the authority to hang and take the chattels of a thief caught on the estate]. the town of coventry consisted of a large monastery estate and a large private estate headed by a lord. the monastery was granted by edward the confessor full freedom and these jurisdictions: sac and soke, toll and team, hamsocne [the authority to fine a person for breaking into and making entry by force into the dwelling of another], forestall [the authority to fine a person for robbing others on the road], bloodwite [the authority to impose a forfeiture for assault involving bloodshed], fightwite [the authority to fine for fighting], weordwite [the authority to fine for manslaughter, but not for willful murder], and mundbryce [the authority to fine for any breach of the peace, such as trespass on lands]. every man was expected to have a lord to whom he gave fealty. he swore by this fealty oath: "by the lord, before whom this relic is holy, i will be to -----faithful and true, and love all that he loves, and shun all that he shuns, according to god's law, and according to the world's principle, and never, by will nor by force, by word nor by work, do ought of what is loathful to him; on condition that he keep me as i am willing to deserve, and all that fulfill that our agreement was, when i to him submitted and chose his will." if a man was homeless or lordless, his brothers were expected to find him such, e.g. in the folkmote. otherwise, he as to be treated as a fugitive, and could be slain as for a thief, and anyone who had harbored him would pay a penalty. brothers were also expected to protect their minor kinsmen. marriages were determined by men asking women to marry them. if a woman said yes, he paid a sum to her kin for her "mund" [jurisdiction or protection over her] and gave his oath to them to maintain and support the woman and any children born. as security for this oath, he gave a valuable object or "wed". the couple were then betrothed. marriage ceremonies were performed by priests in churches. the groom had to bring friends to his wedding as sureties to guarantee his oath to maintain and support his wife and children. those who swore to take care of the children were called their "godfathers". the marriage was written into church records. after witnessing the wedding, friends ate the great loaf, or first bread made by the bride. this was the forerunner of the wedding cake. they drank special ale, the "bride ale" (from hence the work "bridal"), to the health of the couple. women could own land, houses, and furniture and other property. they could even make wills that disinherited their sons. this marriage agreement with an archbishop's sister provides her with land, money, and horsemen: "here in this document is stated the agreement which wulfric and the archbishop made when he obtained the archbishop's sister as his wife, namely he promised her the estates at orleton and ribbesford for her lifetime, and promised her that he would obtain the estate at knightwick for her for three lives from the community at winchcombe, and gave her the estate at alton to grant and bestow upon whomsoever she pleased during her lifetime or at her death, as she preferred, and promised her 50 mancuses of gold and 30 men and 30 horses. the witnesses that this agreement was made as stated were archbishop wulfstan and earl leofwine and bishop aethelstan and abbot aelfweard and the monk brihtheah and many good men in addition to them, both ecclesiastics and laymen. there are two copies of this agreement, one in the possession of the archbishop at worcester and the other in the possession of bishop aethelstan at hereford." this marriage agreement provided the wife with money, land, farm animals and farm laborers; it also names sureties, the survivor of whom would receive all this property: "here is declared in this document the agreement which godwine made with brihtric when he wooed his daughter. in the first place he gave her a pound's weight of gold, to induce her to accept his suit, and he granted her the estate at street with all that belongs to it, and 150 acres at burmarsh and in addition 30 oxen and 20 cows and 10 horses and 10 slaves. this agreement was made at kingston before king cnut, with the cognizance of archbishop lyfing and the community at christchurch, and abbot aelfmaer and the community at st. augustine's, and the sheriff aethelwine and sired the old and godwine, wulfheah's son, and aelfsige cild and eadmaer of burham and godwine, wulfstan's son, and carl, the king's cniht. and when the maiden was brought from brightling aelfgar, sired's son, and frerth, the priest of forlstone, and the priests leofwine and wulfsige from dover, and edred, eadhelm's son, and leofwine, waerhelm's son, and cenwold rust and leofwine, son of godwine of horton, and leofwine the red and godwine, eadgifu's son, and leofsunu his brother acted as security for all this. and whichever of them lives the longer shall succeed to all the property both in land and everything else which i have given them. every trustworthy man in kent and sussex, whether thegn or commoner, is cognizant of these terms. there are three of these documents; one is at christchurch, another at st. augustine's, and brihtric himself has the third." nuns and monks lived in segregated nunneries and monasteries on church land and grew their own food. the local bishop usually was also an abbot of a monastery. the priests and nuns wore long robes with loose belts and did not carry weapons. their life was ordered by the ringing of the bell to start certain activities, such as prayer; meals; meetings; work in the fields, gardens, or workshops; and copying and illuminating books. they chanted to pay homage and to communicate with god or his saints. they taught justice, piety, chastity, peace, and charity; and cared for the sick. caring for the sick entailed mostly praying to god as it was thought that only god could cure. they bathed a few times a year. they got their drinking water from upstream of where they had located their latrines over running water. the large monasteries had libraries, dormitories, guesthouses, kitchens, butteries to store wine, bakehouses, breweries, dairies, granaries, barns, fishponds, orchards, vineyards, gardens, workshops, laundries, lavatories with long stone or marble washing troughs, and towels. slavery was diminished by the church by excommunication for the sale of a child over seven. the clergy taught that manumission of slaves was good for the soul of the dead, so it became frequent in wills. the clergy were to abstain from red meat and wine and were to be celibate. but there were periods of laxity. punishment was by the cane or scourge. the archbishop of canterbury began anointing new kings at the time of coronation to emphasize that the king was ruler by the grace of god. as god's minister, the king could only do right. from 973, the new king swore to protect the christian church, to prevent inequities to all subjects, and to render good justice, which became a standard oath. there was a celestial hierarchy, with heavenly hosts in specific places. god intervened in daily life, especially if worshipped. saints such as bede and hilda performed miracles, especially ones of curing. their spirits could be contacted through their relics, which rested at the altars of churches. when someone was said to have the devil in him, people took it quite literally. a real jack frost nipped noses and fingers and made the ground too hard to work. little people, elves, trolls, and fairies inhabited the fears and imaginings of people. the forest was the mysterious home of spirits. people prayed to god to help them in their troubles and from the work of the devil. since natural causes of events were unknown, people attributed events to wills like their own. illness was thought to be caused by demons. people hung charms around their neck for cure and treatments of magic and herbs were given. some had hallucinogenic effects, which were probably useful for pain. for instance, the remedy for "mental vacancy and folly" was a drink of "fennel, agrimony, cockle, and marche". bloodletting by leeches and cautery were used for most maladies, which were thought to be caused by imbalance of the four bodily humors: sanguine, phlegmatic, choleric, and melancholic. these four humors reflected the four basic elements of the world articulated by aristotle: air, water, fire, and earth. blood was hot and moist like air; phlegm was cold and moist like water; choler or yellow bile was hot and dry like fire; and melancholy or black bile was cold and dry like earth. bede had explained that when blood predominates, it makes people joyful and glad, sociable, laughing, and talking a great deal. phlegm renders them slow, sleepy, and forgetful. red cholic makes them thin, though eating much, swift, bold, wrathful, and agile. black cholic makes them serious of settled disposition, even sad. to relieve brain pressure and/or maybe to exorcise evil spirits, holes were drilled into skulls by a drill with a metal tip that was caused to turn back and forth by a strap wrapped around a wooden handle. a king's daughter edith inspired a cult of holy wells, whose waters were thought to alleviate eye conditions. warmth and rest were also used for illness. agrimony boiled in milk was thought to relieve impotence in men. it was known that the liver casted out impurities in the blood. the stages of fetal growth were known. the soul was not thought to enter a fetus until after the third month, so presumably abortions within three months were allowable. the days of the week were sun day, moon day, tiw's day (viking god of war), woden's day (viking god of victory, master magician, calmer of storms, and raiser of the dead), thor's day (viking god of thunder), frig's day (viking goddess of fertility and growing things), and saturn's day (roman god). special days of the year were celebrated: christmas, the birthday of jesus christ; the twelve days of yuletide (a viking tradition) when candles were lit and houses decorated with evergreen and there were festivities around the burning of the biggest log available; plough monday for resumption of work after yuletide; february 14th with a feast celebrating saint valentinus, a roman bishop martyr who had married young lovers in secret when marriage was forbidden to encourage men to fight in war; new year's day on march 25th when seed was sown and people banged on drums and blew horns to banish spirits who destroy crops with disease; easter, the day of the resurrection of jesus christ; whitsunday, celebrating the descent of the holy spirit on the apostles of jesus and named for the white worn by baptismal candidates; may day when flowers and greenery was gathered from the woods to decorate houses and churches, morris dancers leapt through their villages with bells, hobby horses, and waving scarves, and people danced around a may pole holding colorful ribbons tied at the top so they became entwined around the pole; lammas on august 1st, when the first bread baked from the wheat harvest was consecrated; harvest home when the last harvest load was brought home while an effigy of a goddess was carried with reapers singing and piping behind, and october 31st, the eve of the christian designated all hallow day, which then became known as all hallow even, or halloween. people dressed as demons, hobgoblins, and witches to keep spirits away from possessing them. trick or treating began with christian beggars asking for "soul cake" biscuits in return for praying for dead relatives. ticktacktoe and backgammon were played. there were riddles such as: i am a strange creature, for i satisfy women ... i grow very tall, erect in a bed. i'm hairy underneath. from time to time a beautiful girl, the brave daughter of some fellow dares to hold me grips my reddish skin, robs me of my head and puts me in the pantry. at once that girl with plaited hair who has confined me remembers our meeting. her eye moistens. what am i? an onion. a man came walking where he knew she stood in a corner, stepped forwards; the bold fellow plucked up his own skirt by hand, stuck something stiff beneath her belt as she stood, worked his will. they both wiggled. the man hurried; his trusty helper plied a handy task, but tired at length, less strong than she, weary of the work. thick beneath her belt swelled the thing good men praise with their hearts and purses. what am i? a milk churn. the languages of invaders had produced a hybrid language that was roughly understood throughout the country. the existence of europe, africa, asia, and india were known. jerusalem was thought to be at the center of the world. there was an annual tax of a penny on every hearth, peter's pence, to be collected and sent to the pope in rome. ecclesiastical benefices were to pay churchscot, a payment in lieu of first fruits of the land, to the pope. the law the king and witan deliberated on the making of new laws, both secular and spiritual, at the regularly held witanagemot. there was a standard legal requirement of holding every man accountable, though expressed in different ways, such as the following three: every freeman who does not hold land must find a lord to answer for him. the act of homage was symbolized by holding his hands together between those of his lord. every lord shall be personally responsible as surety for the men of his household. [this included female lords.] (king athelstan) "and every man shall see that he has a surety, and this surety shall bring and keep him to [the performance of] every lawful duty. 1. and if anyone does wrong and escapes, his surety shall incur what the other should have incurred. 2. if the case be that of a thief and his surety can lay hold of him within twelve months, he shall deliver him up to justice, and what he has paid shall be returned to him." (king edgar) every freeman who holds land, except lords with considerable landed property, must be in a local tithing, usually ten to twelve men, in which they serve as personal sureties for each other's peaceful behavior. if one of the ten landholders in a tithing is accused of an offense, the others have to produce him in court or pay a fine plus pay the injured party for the offense, unless they could prove that they had no complicity in it. if the man is found guilty but can not pay, his tithing must pay his fine. the chief officer is the "tithing man" or "capital pledge". there were probably ten tithings in a hundred. (king edward the confessor). everyone was to take an oath not to steal, which one's surety would compel one to keep. no one may receive another lord's man without the permission of this lord and only if the man is blameless towards every hand. the penalty is the bot for disobedience. no lord was to dismiss any of his men who had been accused, until he had made compensation and done right. "no woman or maiden shall be forced to marry a man she dislikes or given for money." "violence to a widow or maiden is punishable by payment of one's wergeld." no man may have more wives than one. no man may marry among his own kin within six degrees of relationship or with the widow of a man as nearly related to him as that, or with a near relative of his first wife's, or his godmother, or a divorced woman. incest is punishable by payment of one's wergeld or a fine or forfeiture of all his possessions. grounds for divorce were mutual consent or adultery or desertion. adultery was prohibited for men as well as for women. the penalty was payment of a bot or denial of burial in consecrated ground. a law of canute provided that if a wife was guilty of adultery, she forfeited all her property to her husband and her nose and ears, but this law did not survive him. laymen may marry a second time, and a young widow may again take a husband, but they will not receive a blessing and must do penance for their incontinence. prostitutes were to be driven out of the land or destroyed in the land, unless they cease from their wickedness and make amends to the utmost of their ability. neither husband nor wife could sell family property without the other's consent. if there was a marriage agreement, it determined the wife's "dower", which would be hers upon his death. otherwise, if a man who held his land in socage [owned it freely and not subject to a larger landholder] died before his wife, she got half this property. if there were minor children, she received all this property. inheritance of land to adult children was by the custom of the land held. in some places, the custom was for the oldest son to take it and in other places, the custom was for the youngest son to take it. usually, the sons each took an equal portion by partition, but the eldest son had the right to buy out the others as to the chief messuage [manor; dwelling and supporting land and buildings] as long as he compensated them with property of equal value. if there were no legitimate sons, then each daughter took an equal share when she married. in london, one-third of the personal property of a decedent went to his wife, one-third went to his children in equal shares, and one-third he could bequeath as he wished. "if a man dies intestate [without a will], his lord shall have heriot [horses, weapons, shields, and helmets] of his property according to the deceased's rank and [the rest of] the property shall be divided among his wife, children, and near kinsmen." a man could justifiably kill an adulterer in the act with the man's wife, daughter, sister, or mother. in kent, a lord could fine any bondswoman of his who had become pregnant without his permission [childwyte]. a man could kill in defense of his own life, the life of his kinsmen, his lord, or a man whose lord he was. the offender was "caught red-handed" if the blood of his victim was still on him. self-help was available for hamsocne [breaking into a man's house to assault him]. murder is punished by death as follows: "if any man break the king's peace given by hand or seal, so that he slay the man to whom the peace was given, both his life and lands shall be in the king's power if he be taken, and if he cannot be taken he shall be held an outlaw by all, and if anyone shall be able to slay him he shall have his spoils by law." the king's peace usually extended to important designated individuals, churches, assemblies, those traveling to courts or assemblies, and particular times and places. often a king would extend his peace to fugitives from violent feuds if they asked the king, earls, and bishops for time to pay compensation for their misdeeds. from this came the practice of giving a portion of the "profits of justice" to such men who tried the fugitive. the king's peace came to be extended to those most vulnerable to violence: foreigners, strangers, and kinless persons. "if anyone by force break or enter any man's court or house to slay or wound or assault a man, he shall pay 100s. to the king as fine." "if anyone slay a man within his court or his house, himself and all his substance are at the king's will, save the dower of his wife if he have endowed her." if a person fights and wounds anyone, he is liable for his wer. if he fells a man to death, he is then an outlaw and is to be seized by raising the hue and cry. and if anyone kills him for resisting god's law or the king's, there will be no compensation for his death. a man could kill a thief over twelve years in the act of carrying off his property over 8d., e.g. the thief hand-habbende [a thief found with the stolen goods in his hand] or the thief back-berend [a thief found carrying stolen goods on his back]. cattle theft could be dealt with only by speedy pursuit. a person who had involuntarily lost possession of cattle is to at once raise the hue and cry. he was to inform the hundred-man, who then called the tithing-men. all these neighbors had to then follow the trail of the cow to its taker, or pay 30d. to the hundred for the first offense, and 60d. for the second offense, half to the hundred and half to the lord, and half a pound [10s.] for the third offense, and forfeiture of all his property and declared outlaw for the fourth offense. if the hundred pursued a track into another hundred, notice was to be given to that hundred-man. if he did not go with them, he had to pay 30s. to the king. if a thief was brought into prison, he was to be released after 40 days if he paid his fine of 120s. his kindred could become his sureties, to pay according to his wer if he stole again. if a thief forfeited his freedom and gave himself up, but his kindred forsook him, and he does not know of anyone who will make bot for him; let him then do theow-work, and let the wer abate for the kindred. measures and weights of goods for sale shall be correct. every man shall have a warrantor to his market transactions and no one shall buy and sell except in a market town; but he shall have the witness of the portreeve or of other men of credit, who can be trusted. moneyers accused of minting money outside a designated market were to go to the ordeal of the hot iron with the hand that was accused of doing the fraud. if he was found guilty, his hand that did the offense was to be struck off and be set up on the moneysmithy. no marketing, business, or hunting may be done on sundays. no one may bind a freeman, shave his head in derision, or shave off his beard. shaving was a sign of enslavement, which could be incurred by not paying one's fines for offenses committed. no clergy may gamble or participate in games of chance. the laws for london were: "1. the gates called aldersgate and cripplegate were in charge of guards. 2. if a small ship came to billingsgate, one half-penny was paid as toll; if a larger ship with sails, one penny was paid. 1) if a hulk or merchantman arrives and lies there, four pence is paid as toll. 2) from a ship with a cargo of planks, one plank is given as toll. 3) on three days of the week toll for cloth [is paid] on sunday and tuesday and thursday. 4) a merchant who came to the bridge with a boat containing fish paid one half-penny as toll, and for a larger ship one penny." 5 8) foreigners with wine or blubber fish or other goods and their tolls. foreigners were allowed to buy wool, melted sheep fat [tallow], and three live pigs for their ships. "3. if the town-reeve or the village reeve or any other official accuses anyone of having withheld toll, and the man replies that he has kept back no toll which it was his legal duty to pay, he shall swear to this with six others and shall be quit of the charge. 1) if he declares that he has paid toll, he shall produce the man to whom he paid it, and shall be quit of the charge. 2) if, however, he cannot produce the man to whom he paid it, he shall pay the actual toll and as much again and five pounds to the king. 3) if he vouches the tax-gatherer to warranty [asserting] that he paid toll to him, and the latter denies it, he shall clear himself by the ordeal and by no other means of proof. 4. and we [the king and his counselors] have decreed that a man who, within the town, makes forcible entry into another man's house without permission and commits a breach of the peace of the worst kind ... and he who assaults an innocent person on the king's highway, if he is slain, shall lie in an unhonored grave. 1) if, before demanding justice, he has recourse to violence, but does not lose his life thereby, he shall pay five pounds for breach of the king's peace. 2) if he values the good-will of the town itself, he shall pay us thirty shillings as compensation, if the king will grant us this concession." 5. no base coin or coin defective in quality or weight, foreign or english, may be used by a foreigner or an englishman. (in 956, a person found guilty of illicit coining was punished by loss of a hand.) judicial procedure there were courts for different geographical communities. the arrangement of the whole kingdom into shires was completed by 975 after being united under king edgar. a shire was a larger area of land, headed by an earl. a shire reeve or "sheriff" represented the royal interests in the shires and in the shire courts. this officer came to be selected by the king and earl of the shire to be a judicial and financial deputy of the earl and to execute the law. the office of sheriff, which was not hereditary, was also responsible for the administration of royal lands and royal accounts. the sheriff summoned the freemen holding land in the shire, four men selected by each community or township, and all public officers to meet twice a year at their "shire-mote". actually only the great lords the bishops, earls, and thegns attended. the shire court was primarily concerned with issues of the larger landholders. here the freemen interpreted the customary law of the locality. the earl declared the secular law and the bishop declared the spiritual law. they also declared the sentence of the judges. the earl usually took a third of the profits, such as fines and forfeits, of the shire court, and the bishop took a share. in time, the earls each came to supervise several shires and the sheriff became head of the shire and assumed the earl's duties there, such as heading the county fyrd. the shire court also heard cases which had been refused justice at the hundred-mote and cases of keeping the peace of the shire. the hundred was a division of the shire, having come to refer to a geographical area rather than a number of households. the monthly hundred-mote could be attended by any freeman holding land (or a lord's steward), but was usually attended only by reeve, thegns, parish priest, and four representatives selected by each agrarian community or village usually villeins. here transfers of land were witnessed. a reeve, sometimes the sheriff, presided over local criminal and peace and order issues ["leet jurisdiction", which derived from sac and soc jurisdiction] and civil cases at the hundred court. all residents were expected to attend the leet court. the sheriff usually held each hundred court in turn. the suitors to these courts were the same as those of the shire courts. they were the judges who declared the law and ordered the form of proof, such as compurgatory oath and ordeal. they were customarily thegns, often twelve in number. they, as well as the king and the earl, received part of the profits of justice. summary procedure was followed when a criminal was caught in the act or seized after a hue and cry. every freeman over age twelve had to be in a hundred and had to follow the hue and cry. "no one shall make distraint [seizure of personal property out of the possession of an alleged wrong-doer into the custody of the party injured, to procure a satisfaction for a wrong committed] of property until he has appealed for justice in the hundred court and shire court". in 997, king ethelred in a law code ordered the sheriff and twelve leading magnates of each shire to swear to accuse no innocent man, nor conceal any guilty one. this was the germ of the later assize, and later still the jury. the integrity of the judicial system was protected by certain penalties: for swearing a false oath, bot as determined by a cleric who has heard his confession, or, if he has not confessed, denial of burial in consecrated ground. also a perjurer lost his oath-worthiness. swearing a false oath or perjury was also punishable by loss of one's hand or half one's wergeld. a lord denying justice, as by upholding an evil-doing thegn of his, had to pay 120s. to the king for his disobedience. furthermore, if a lord protected a theow of his who had stolen, he had to forfeit the theow and pay his wer, for the first offense, and he was liable for all he property, for subsequent offenses. there was a bot for anyone harboring a convicted offender. if anyone failed to attend the gemot thrice after being summoned, he was to pay the king a fine for his disobedience. if he did not pay this fine or do right, the chief men of the burh were to ride to him, and take all his property to put into surety. if he did not know of a person who would be his surety, he was to be imprisoned. failing that, he was to be killed. but if he escaped, anyone who harbored him, knowing him to be a fugitive, would be liable pay his wer. anyone who avenged a thief without wounding anyone, had to pay the king 120s. as wite for the assault. "and if anyone is so rich or belongs to so powerful a kindred, that he cannot be restrained from crime or from protecting and harboring criminals, he shall be led out of his native district with his wife and children, and all his goods, to any part of the kingdom which the king chooses, be he noble or commoner, whoever he may be with the provision that he shall never return to his native district. and henceforth, let him never be encountered by anyone in that district; otherwise he shall be treated as a thief caught in the act." this lawsuit between a son and his mother over land was heard at a shire-meeting: "here it is declared in this document that a shiremeeting sat at aylton in king cnut's time. there were present bishop aethelstan and earl ranig and edwin, the earl's son, and leofwine, wulfsige's son, and thurkil the white; and tofi the proud came there on the king's business, and bryning the sheriff was present, and aethelweard of frome and leofwine of frome and godric of stoke and all the thegns of herefordshire. then edwin, enneawnes son, came traveling to the meeting and sued his own mother for a certain piece of land, namely wellington and cradley. then the bishop asked whose business it was to answer for his mother, and thurkil the white replied that it was his business to do so, if he knew the claim. as he did not know the claim, three thegns were chosen from the meeting [to ride] to the place where she was, namely at fawley, and these were leofwine of frome and aethelsige the red and winsige the seaman, and when they came to her they asked her what claim she had to the lands for which her son was suing her. then she said that she had no land that in any way belonged to him, and was strongly incensed against her son, and summoned to her kinswoman, leofflaed, thurkil's wife, and in front of them said to her as follows: 'here sits leofflaed, my kinswoman, to whom, after my death, i grant my land and my gold, my clothing and my raiment and all that i possess.' and then she said to the thegns: 'act like thegns, and duly announce my message to the meeting before all the worthy men, and tell them to whom i have granted my land and all my property, and not a thing to my own son, and ask them to be witnesses of this.' and they did so; they rode to the meeting and informed all the worthy men of the charge that she had laid upon them. then thurkil the white stood up in the meeting and asked all the thegns to give his wife the lands unreservedly which her kinswoman had granted her, and they did so. then thurkil rode to st. aethelbert's minister, with the consent and cognizance of the whole assembly, and had it recorded in a gospel book." courts controlled by lords of large private estates had various kinds of jurisdiction recognized by the king: sac and soke [possession of legal powers of execution and profits of justice held by a noble or institution over inhabitants and tenants of the estate, exercised through a private court], toll [right to collect a payment on the sale of cattle and property] and team [right to hold a court to determine the honesty of a man accused of illegal possession of cattle], infangenetheof [the authority to judge and to hang and take the chattels of a thief caught on the property], and utfangenetheof [the authority to judge and to hand and take the chattels of a thief dwelling out of his liberty, and committing theft without the same, if he were caught within the lord's property]. some lords were even given jurisdiction over breach of the royal peace, ambush and treacherous manslaughter, harboring of outlaws, forced entry into a residence, and failure to answer a military summons. often this court's jurisdiction overlapped that of the hundred court and sometimes a whole hundred had passed under the jurisdiction of an abbot, bishop, or earl. a lord and his noble lady, or his steward, presided at this court. the law was administered here on the same principles as at the hundred court. judges of the leet of the court of a large private estate were chosen from the constables and four representatives selected from each community, village, or town. before a dispute went to the hundred court, it might be taken care of by the head tithing man, e;.g. cases between vills, between neighbors, and some compensations and settlements, namely concerning pastures, meadows, harvests, and contests between neighbors. the vill [similar to village] was the smallest community for judicial purposes. there were several vills in a hundred. in london, the hustings court met weekly and decided such issues as wills and bequests and commerce matters. the folk-mote of all citizens met three times a year. each ward had a leet court [for minor criminal matters]. the king and his witan decided the complaints and issues of the nobility and those cases which had not received justice in the hundred or shire court. the witan had a criminal jurisdiction and could imprison or outlaw a person. the witan could even compel the king to return any land he might have unjustly taken. specially punishable by the king was "oferhyrnesse": contempt of the king's law. it covered refusal of justice, neglect of summons to gemot or pursuit of thieves, disobedience to the king's offiers, sounding the king's coin, accepting another man's dependent without his leave, buying outside markets, and refusing to pay peter's pence. the forests were peculiarly subject to the absolute will of the king. they were outside the common law. their unique customs and laws protected the peace of the animals rather than the king's subjects. only special officials on special commissions heard their cases. the form of oaths for compurgation were specified for theft of cattle, unsoundness of property bought, and money owed for a sale. the defendant denied the accusation by sweating that "by the lord, i am guiltless, both in deed and counsel, and of the charge of which accuses me." a compurgator swore that "by the lord, the oath is clean and unperjured which has sworn.". a witness swore that "in the name of almighty god, as i here for in true witness stand, unbidden and unbought, so i with my eyes over-saw, and with my ears over-heard, that which i with him say." if a theow man was guilty at the ordeal, he was not only to give compensation, but was to be scourged thrice, or a second geld be given; and be the wite of half value for theows. chapter 4 the times: 1066-1100 william came from normandy to conquer england. he claimed that the former king, edward, the confessor, had promised the throne to him when they were growing up together in normandy, if edward became king of england and had no children. the conquerer's men and horses came in boats powered by oars and sails. the conquest did not take long because of the superiority of his military expertise to that of the english. he organized his army into three groups: archers with bows and arrows, horsemen with swords and stirrups, and footmen with hand weapons. each group played a specific role in a strategy planned in advance. the english army was only composed of footmen with hand weapons such as spears and shields. they fought in a line holding up their shields to overlap each other ane form a shieldwall. the defeat of the english was thought to have been presaged by a comet. at westminster, he made an oath to defend god's holy churches and their rulers, to rule the whole people subject to him with righteousness and royal providence, to enact and hold fast right law, and to utterly forbid rapine and unrighteous judgments. this was in keeping with the traditional oath of a new king. declaring the english who fought against him to be traitors, the conquerer declared their land confiscated. but he allowed those who were willing to acknowledge him to redeem their land by a payment of money. as william conquered the land of the realm, he parceled it out among the barons who fought with him so that each baron was given the holdings of an anglo-saxon predecessor, scattered though they were. the barons again made oaths of personal loyalty to him [fealty]. they agreed to hold the land as his vassals with future military services to him and receipt of his protection. they gave him homage by placing their hands within his and saying "i become your man for the tenement i hold of you, and i will bear you faith in life and member [limb] and earthly honor against all men". they held their land "of their lord", the king, by knight's service. the king had "enfeoffed" them [given them a fief: a source of income] with land. the theory that by right all land was the king's and that land was held by others only at his gift and in return for specified service was new to english thought. the original duration of a knight's fee until about 1100 was for his life; thereafter it was heritable. the word "knight" came to replace the word "thegn" as a person who received his position and land by fighting for the king. the exact obligation of knight's service was to furnish a fully-armed horseman to serve at his own expense for forty days in the year. this service was not limited to defense of the country, but included fighting abroad. the baron led his own knights under his banner. the foot soldiers were from the fyrd or were mercenaries. every free man was sworn to join in the defense of the king, his lands and his honor, within england and without. the saxon governing class was destroyed. the independent power of earls, who had been drawn from three great family houses, was curtailed. most died or fled the country. some men were allowed to redeem their land by money payment if they showed loyalty to the conquerer. well-born women crowded into nunneries to escape norman violence. the people were deprived of their most popular leaders, who were excluded from all positions of trust and profit, especially all the clergy. the earldoms became fiefs instead of magistracies. the conquerer was a stern and fierce man and ruled as an autocrat by terror. whenever the people revolted or resisted his mandates, he seized their lands or destroyed the crops and laid waste the countryside and so that they starved to death. his rule was strong, resolute, wise, and wary because he had learned to command himself as well as other men. he was not arbitrary or oppressive. the conquerer had a strict system of policing the nation. instead of the anglo-saxon self-government throughout the districts and hundreds of resident authorities in local courts, he aimed at substituting for it the absolute rule of the barons under military rule so favorable to the centralizing power of the crown. he used secret police and spies and the terrorism this system involved. this especially curbed the minor barons and preserved the public peace. the english people, who outnumbered the normans by 300 to 1, were disarmed. curfew bells were rung at 7:00 pm when everyone had to remain in their own dwellings on pain of death and all fires and candles were to be put out. this prevented any nightly gatherings, assassinations, or seditions. order was brought to the kingdom so that no man dare kill another, no matter how great the injury he had received. the conquerer extended the king's peace on the highways, i.e. roads on high ground, to include the whole nation. any individual of any rank could travel from end to end of the land unharmed. before, prudent travelers would travel only in groups of twenty. the barons subjugated the english who were on their newly acquired land. there began a hierarchy of seisin [rightful occupation] of land so that there could be no land without its lord. also, every lord had a superior lord with the king as the overlord or supreme landlord. one piece of land may be held by several tenures. for instance, a, holding by barons's service of the king, may enfeoff b, a church, to hold of him on the terms of praying for the souls of his ancestors, and b may enfeoff a freeman c to hold of the church by giving it a certain percentage of his crops every year. there were about 200 barons who held land directly of the king. other fighting men were the knights, who were tenants or subtenants of a baron. knighthood began as a reward for valor on the field of battle by the king or a noble. the value of a knight's fee was 400s. [20 pounds] per year. altogether there were about 5000 fighting men holding land. the essence of norman feudalism was that the land remained under the lord, whatever the vassal might do. the lord had the duty to defend the vassals on his land. the vassal owed military service to the lord and also the service of attending the courts of the hundred and the county [formerly "shire"], which were courts of the king, administering old customary law. they were the king's courts on the principle that a crime anywhere was a breach of the king's peace. the king's peace that had covered his residence and household had extended to places where he might travel, such as highways, rivers, bridges, churches, monasteries, markets, and towns, and then encompassed every place, replacing the general public peace. infraction of the king's peace incurred fines to the king. this feudal bond based on occupancy of land rather than on personal ties was uniform throughout the realm. no longer could a man choose his lord and transfer his land with him to a new lord. he held his land at the will of his lord, to be terminated anytime the lord decided to do so. a tenant could not alienate his land without permission of his lord. in later eras, tenancies would be held for the life of the tenant, and even later, for his life and those of his heirs. this uniformity of land organization plus the new requirement that every freeman take an oath of loyalty directly to the king to assist him in preserving his lands and honor and defending him against his enemies, which oath would supersede any oath to any other man, gave the nation a new unity. the king could call men directly to the fyrd, summon them to his court, and tax them without intervention of their lords. and the people learned to look to the king for protection from abuse by their lords. english villani, bordarii, cottarii, and servi on the land of the barons were subjugated into a condition of "villeinage" servitude and became "tied to the land" so that they could not leave the land without their lord's permission, except to go on a pilgrimage. the villeins formed a new bottom class as the population's percentage of slaves declined dramatically. they held their land of their lord, the baron. to guard against uprisings of the conquered people, the barons used villein labor to build about a hundred great stone castles, with moats and walls with towers around them, at easily defensible positions such as hilltops all over the nation. a castle could be built only with permission of the king. a typical castle had a stone building of about four floors [a keep] on a small, steep hill. later it also had an open area surrounded by a stone curtain-wall with towers at the corners. around the outside of the wall were ditches and banks and perhaps a moat. one traveled over these via a drawbridge let down at the gatehouse of the enclosing wall. on either side of the gatehouse were chambers for the guards. arrows could be shot through slits in the enclosing walls. inside the enclosed area might be stables, a granary, barracks for the soldiers, and workshops. the only winter feed was hay, for which the horses, breeding animals, milk-cow, and work-oxen had a priority over other animals. the bulk of the cattle were usually slaughtered and salted. the castle building typically was entered by an outer wood staircase to the guard room on the second floor. the first [ground] floor had a well and was used as a storehouse and/or dungeons for prisoners. the second floor had a two-storied great hall, with small rooms and aisles around it within the thick walls. there was also a chapel area on the second floor. there were small areas of the third floor which could be used for sleeping. the floors were wood and were reached by a spiral stone staircase in one corner of the building. sometimes there was a reservoir of water on an upper level with pipes carrying the water to floors below. each floor had a fireplace with a slanted flue going through the wall to the outside. there were latrines in the corner walls with a pit or shaft down the exterior of the wall, sometimes to the moat. furs and wool clothes were hung on the walls there in the summer to deter the moths. the first floor had only arrow slits in the walls, but the higher floors had small windows. some curtain-wall castles did not have a central building. in these, the hall was built along the inside of the walls, as were other continuous buildings. the kitchens and chapels were in the towers. lodgings were in buildings along the curtain-walls, or on several floors of the towers. the great hall was the main room of the castle. the hall was used for meals and meetings at which the lord received homages, recovered fees, and held the view of frankpledge [free pledge in latin], in which freemen agreed to be sureties for each other. at the main table, the lord and his lady sat on benches with backs or chairs. the table was covered first with a wool cloth that reached to the floor, and then by a smaller white linen cloth. everyone else sat on benches at trestle tables, which could be folded up, e.g. at night. over the main door were the family arms. on the upper parts of the walls could be foxskins and perhaps a polecat skin, and keepers' and huntsmen's poles. there were often hawk perches overhead. at the midday dinner, courses were ceremonially brought in to music, and ritual bows were made to the lord. the food at the head table was often tasted first by a servant as a precaution against poison. hounds, spaniels, and terriers lay near the hearth and cats, often with litters, nestled nearby. they might share in dinner, but the lord may keep a short stick near him to defend morsels he meant for himself. hunting, dove cotes, and carp pools provided fresh meat. fish was compulsory eating on fridays, on fast days, and during lent. cooking was done outside on an open fire, roasting on spits and boiling in pots. some spits were mechanized with a cogged wheel and a weight at the end of a string. other spits were turned by a small boy shielded from the heat by a wet blanket, or by dogs on a treadmill, or by a long handle. underneath the spit was a dripping pan to hold the falling juices and fat. mutton fat was used for candles. bread, pies, and pastry dishes were baked in an oven: a hole in a fireproof stone wall fitted with an iron door, in which wood was first burnt to heat the oven walls. it could also be used for drying fruit or melting tallow. fruits were also preserved in honey. salt was stored in a niche in the wall near the hearth and put on the table in a salt cellar which became more elaborate over the years. salt was very valuable and gave rise to the praise of a man as the salt of the earth. costly imported spices such as cinnamon, cloves, nutmeg, ginger, pepper, and a small quantity of sugar were kept in chests. pepper was always on the table to disguise the taste of tainted meat. drinks included wine, ale, cider from apples, perry from pears, and mead. people carried and used their own knives. there were no forks. spoons were of silver or wood. people also ate with their fingers and washed their hands before and after meals. it was impolite to dig into the salt bowl with a knife not previously wiped on bread or napkin, which was linen. it was unmannerly to wipe one's knife or one's greasy fingers on the tablecloth or, to use the tablecloth to blow one's nose. feasts were stately occasions with costly tables and splendid apparel. there were practical jokes, innocent frolics, and witty verbal debating with repartee. they played chess, checkers, and various games with cards and dice. most people could sing and some could play the lute. lighting of the hall at night was by oil lamps or candles on stands or on wall fixtures. for outside activities, a lantern [a candle shielded by a metal cage with panels of finely shaved horn: lant horn] was used. the residence of the lord's family and guests was at a screened off area at the extreme end of the hall or on a higher floor. chests stored garments and jewels. iron keys and locks were used for chests and doors. the great bed had a wooden frame and springs made of interlaced rope or strips of leather. it was covered with a feather mattress, sheets, quilts, fur covers, and pillows. drapery around the bed kept out cold drafts and provided privacy. there was a water bowl for washing in the morning. a chamber pot was kept under the bed for nighttime use. hay was used as toilet-paper. the lord's personal servants slept nearby on benches or trundle beds. most of the gentlemen servants slept communially in a "knight's chamber". the floor of the hall was strewn with straw, on which common folk could sleep at night. there were stools on which to sit. cup boards (boards on which to store cups) and chests stored spices and plate. one-piece iron shears were available to cut cloth. hand-held spindles were used for weaving; one hand held the spindle [a small stick weighted at one end] while the other hand alternately formed the thread and wound it around the spindle. on the roofs there were rampart walks for sentry patrols and parapets from which to shoot arrows or throw things at besiegers. each tenant of the demesne of the king where he had a castle had to perform a certain amount of castleguard duty for its continuing defense. these knights performing castle-guard duty slept at their posts. bathing was done in a wooden tub located in the garden in the summer and indoors near the fire in winter. the great bed and tub for bathing were taken on trips with the lord. the entire household was of men, except for the lord's lady with a few lady companions; otherwise the entire household was of men. the ladies rode pillion [on a cushion behind the saddle] or in litters suspended between two horses. markets grew up outside castle walls. any trade on a lord's land was subject to "passage", a payment on goods passing through, "stallage", a payment for setting up a stall or booth in a market, and "pontage", a payment for taking goods across a bridge. the norman man was clean-shaven on his face and around his ears and at the nape of the neck. his hair was short. he wore a longsleeved under-tunic of linen or wool that reached to his ankles. over this the norman noble wore a tunic without sleeves, open at the sides, and fastened with a belt. over one shoulder was his cloak, which was fastened on the opposite shoulder by being drawn through a ring brooch and knotted. he wore tight thick cloth stockings to protect him from the mud and leather shoes. common men wore durable, but drab, wool tunics to the knee so as not to impede them in their work. they could roll up their stockings when working in the fields. a lady also wore a high-necked, longsleeved linen or wool tunic fitted at the waist and laced at the side, but full in the skirt, which reached to her toes. she wore a jeweled belt, passed twice around her waist and knotted in front. her hair was often in two long braids, and her head and ears covered with a white round cloth held in place by a metal circlet like a small crown. its ends were wound around her neck. in winter, she wore over her tunic a cloak edged or lined with fur and fastened at the front with a cord. clothes of both men and ladies were brightly colored by dyes or embroidery. the norman knight wore an over-tunic of leather or heavy linen on which were sewn flat rings of iron and a conical iron helmet with nose cover. he wore a sword at his waist and a metal shield on his back, or he wore his sword and his accompanying retainers carried spear and shield. norman customs were adopted by the nation. as a whole, anglo-saxon men shaved their beards and whiskers from their faces, but they kept their custom of long hair flowing from their heads. but a few kept their whiskers and beards in protest of the normans. everyone had a permanent surname indicating parentage, place of birth, or residence, such as field, pitt, lane, bridge, ford, stone, burn, church, hill, brook, green. other names came from occupations such as shepherd, carter, parker, fowler, hunter, forester, smith. still other came from personal characteristics such as black, brown, and white, short, round, and long. some took their names from animals such as wolf, fox, lamb, bull, hogg, sparrow, crow, and swan. others were called after the men they served, such as king, bishop, abbot, prior, knight. a man's surname was passed on to his son. those few coerls whose land was not taken by a baron remained free and held their land "in socage" and became known as sokemen. they were not fighting men, and did not give homage, but might give fealty, i.e. fidelity. many free sokemen were caught up in the subjugation by baron landlords and were reduced almost to the condition of the unfree villein. the services they performed for their lords were often indistinguishable. they might also hold their land by villein tenure, although free as a person with the legal rights of a freeman. the freeman still had a place in court proceedings which the unfree villein did not. great stone cathedrals were built in fortified towns for the conquerer's norman bishops, who replaced the english bishops. most of the existing and new monasteries functioned as training grounds for scholars, bishops, and statesmen rather than as retreats from the world's problems to the security of religious observance. the number of monks grew as the best minds were recruited into the monasteries. the conquerer made the church subordinate to him. bishops were elected only subject to the king's consent. the bishops had to accept the status of barons. homage was exacted from them before they were consecrated, and fealty and an oath afterward. the conquerer imposed knight's service on bishoprics, abbeys, and monasteries, which was usually commuted to a monetary amount. bishops had to attend the king's court. bishops could not leave the realm without the king's consent. no royal tenant or royal servant could be excommunicated, nor his lands be placed under interdict, without the king's consent. interdict could demand, for instance, that the church be closed and the dead buried in unconsecrated ground. no church rules could be made without his agreement to their terms. no letters from the pope could be received without the king's permission. the archbishop of canterbury was still recognized as a primary advisor to the king. over the years, the selection for this office frequently became a source of contention among king, pope, and clergy. men continued to give land to the church for their souls, such as this grant which started the town of sandwich: "william, king of the english, to lanfranc the archbishop and hugoni de montfort and richard son of earl gilbert and haimo the sheriff and all the thegns of kent, french and english, greeting. know ye that the bishop of bayeux my brother for the love of god and for the salvation of my soul and his own, has given to st. trinity all houses with their appurtenances which he has at sandwich and that he has given what he has given by my license." many private owners of churches gave them to cathedrals or monastic communities, partly to ensure their long-term survival, and partly because of church pressure. when the land was all divided out, the barons had about 3/7 of it and the church about 2/7. most of the barons had been royal servants. the king retained about 2/7, including forests for hunting, for himself and his family and household, on which he built many royal castles and hundreds of manor [large private estate headed by a lord] houses throughout the nation. he built the massive white tower in london. it was tall with four turrets on top, and commanded a view of the river and bridge, the city and the surrounding countryside. the only windows were slits from which arrows could be shot. on the fourth and top floor was the council chamber and the gallery of the chapel. on the third floor was the banqueting hall, the sword room, and the chapel. the king and his household slept in apartments on these upper floors. stairs went up to the gateway entrance on the second floor, which were hidden by a wall. the garrison's barracks were on the first floor (ground floor). any prisoners were kept in cells at a level below the first floor. the other castles were often built at the old fortification burhs of alfred. each had a constable in charge, who was a baron. barons and earls had castle-guard duty in the king's castles. the conquerer was constantly moving about the land among his and his barons' castles, where he met with his magnates and conducted public business, such as deciding disputes about holding of land. near his own castles and other of his property, he designated many areas as royal hunting forests. anyone who killed a deer in these forests was mutilated, for instance by blinding. people living within the boundaries of the designated forestland could no longer go into nearby woods to get meat or honey, dead wood for firing, or live wood for building. swineherds could no longer drive pigs into these woods to eat acorns they beat down from oak trees. making clearings and grazing livestock in the designated forestland were prohibited. most of the nation was either wooded or bog at this time. london was a walled town of one and two story houses made of mud, twigs, and straw, with thatched roofs. it included a bundle of communities, townships, parishes, and lordships. there were churches, a goods market, a fish market, quays on the river, and a bridge over the river. streets probably named by this time include bread street, milk street, honey lane, wood street, and ironmonger lane. fairs and games were held outside the town walls in a field called "smithfield". the great citizens had the land qualifications of knights and ranked as barons on the conquerer's council. the freemen were a small percentage of london's population. there was a butchers' guild, a pepperers' guild, a goldsmiths' guild, the guild of st. lazarus, which was probably a leper charity (of which there were many in the 1000s and 1100s), the pilgrims' guild, which helped people going on pilgrimages, and four bridge guilds, probably for keeping the wooden london bridge in repair. men told the time by sundials, some of which were portable and could be carried in one's pocket. london could defend itself, and a ringing of the bell of st. paul's church could shut every shop and fill the streets with armed horsemen and soldiers led by a soldier portreeve. across the thames from london on its south side was southwark, a small trading and fishing settlement. the conquerer did not interfere with landholding in london, but recognized its independence as a borough in this writ: "william the king greets william, bishop of london, and gosfrith the portreeve, and all the burgesses [citizens] of london friendly. know that i will that you be worthy of all the laws you were worthy of in the time of king edward. and i will that every child shall be his father's heir after his father's day. and i will not suffer any man to do you wrong. god preserve you." the norman word "mayor" replaced "portreeve". so london was not subjected to the norman feudal system. it had neither villeins nor slaves. whenever kings asserted authority over it, the citizens reacted until the king "granted" a charter reaffirming the freedoms of the city and its independence. under pressure from the ecclesiastical judges, the conquerer replaced the death penalty by that of the mutilation of blinding, chopping off hands, and castrating offenders. castration was the punishment for rape. but these mutilations usually led to a slow death by gangrene. the normans used the anglo-saxon concepts of jurisdictional powers. thus when the conquerer confirmed "customs" to the abbot of ely, these were understood to include the following: 1) sac and soke the right to hold a court of private jurisdiction and enjoy its profits, 2) toll a payment in towns, markets, and fairs for goods and chattel bought and sold, 3) team persons might be vouched to warranty in the court, the grant of which made a court capable of hearing suits arising from the transfer of land, 4) infangenthef right of trying and executing thieves on one's land, 4) hamsocne, 5) grithbrice violation of the grantees' special peace, for instance that of the sheriff, 6) fightwite fine for a general breach of the peace, 7) fyrdwite fine for failure to appear in the fyrd. every shire, now called "county", had at least one burh, or defensible town. kings had appointed a royal moneyer in each to mint silver coins such as pennies for local use. on one side was the king's head in profile and on the other side was the name of the moneyer. when a new coinage was issued, all moneyers had to go to london to get the new dies. the conquerer's head faced frontally on his dies, instead of the usual profile used by former kings. the conquerer held and presided over his council three times a year, as was the custom, at easter, christmas, and whitsuntide, which coincided with the great christian festivals. this was an advisory council and consisted of the conquerer's wife and sons, earls, barons, knights, officers of the king's household, archbishops, and bishops. it replaced the witen of wise men. it dealt with fundamental matters of law, state, war, and church. its functions were largely ceremonial. earldoms and knighthoods were conferred and homages to the king were witnessed. bishops were nominated. attendance at the council, like attendance at courts, was regarded as a burden rather than a privilege. the conquerer's will was the motive force which under lay all the council's action. when it was administering royal justice, it was called the royal court.. the justiciar was the head of all legal matters and he or the conquerer's wife represented the king at the royal court in his absence from the realm. the chamberlain was a financial officer of the household; his work was rather that of auditor or accountant. the chancellor headed the chancery and the chapel. other household offices were steward, butler, constable, and marshall. the treasurer was responsible for the collection and distribution of revenue and was the keeper of the royal treasure at the palace at winchester. he was also an important member of the household and sat in the exchequer at westminster, where he received the accounts of the sheriffs. the exchequer was composed of the justiciar as head, the chancellor, the constable, two chamberlains, the marshall and other experienced councilors. the word "exchequer" came from the chequered cloth on the table used to calculate in roman numerals the amount due and the amount paid. the word "calculate" derives from the word "calculi", meaning peebles. it was a kind of abacus. the exchequer received yearly from the sheriffs of the counties taxes, fines, treasure trove, goods from wrecks, deodands, and movable property of felons, of persons executed, of fugitives, and of outlaws due to the crown. the conqueror presided yearly over feasts involving several thousand guests at westminster hall, which was 250 feet by 70 feet with a high ceiling, the largest hall in england. the conquerer's reign was a time of tentative expedients and simple solutions. he administered by issuing writs with commands or prohibitions. these were read aloud by the sheriffs in the county courts and other locations. administration was by the personal servants of his royal household, such as the chancellor, chamberlain, constable, marshalls, steward, and butler. the language of government changed to latin. the chancellor was from the clergy and supervised the writers and clerks, who were literate, and appended the great seal before witnesses to documents. he also headed the staff of the royal chapel. the chamberlain was a financial officer who audited and accounted. the constable was responsible for supplies for the knights of the royal household. he also supervised the care of horses, hounds, hawks, and huntsmen, houndsmen, and foresters. the marshalls came from less important families than the constable and they preserved order in the king's hall and recorded expenditures of the household officers on tallies. the steward was a great baron whose duties were chiefly ceremonial, such as placing the dishes before the king at banquets. sheriffs became powerful figures as the primary agents for enforcing royal edicts. there was no longer supervision of them by earls nor influence on them by bishops. they were customarily prominent barons. they collected the royal taxes, executed royal justice, and presided over and controlled the hundred and county courts. they were responsible for remitting a certain sum annually. if a sheriff received more than necessary, he retained the difference as his lawful profit of office. if he received less than necessary, he had to make up the difference from his own pocket. before rendering theis account, he paid the royal benefactions to religious houses, provided for the maintenance of stock on crown lands, paid for the costs of provisions supplied to the court, and paid for travelling expenses of the king and his visitors. the payments were initially paid in kind: e.g. grain, cattle, horses, hounds, and hawks. sheriffs also took part in the keeping of castles and often managed the estates of the king. most royal writs were addressed to the sheriff and county courts. they also led the county militia in time of war or rebellion. at times, a sheriff usurped royal rights, used royal estates for his own purposes, encroached on private land and rights, extorted money, and collected revenues only for his own pockets. over the centuries, there was much competition for the authority to select the king, e.g. by the king, the county court, the barons, and the exchequer. there was also much pressure to limit his term to one year. also, the powers of the sheriffs slowly declined. royal income came from customary dues, profits of coinage and of justice, and revenues from the king's own estates. for war, there was no change in the custom that a man with five hides of land was required to furnish one heavy-armed horseman for forty days service in a year. the fyrd was retained. a threat of a viking invasion caused the conquerer to reinstate the danegeld tax at 6s. per hide, which was three times its old rate. (the price of an ox was still about 30d.) to impose this tax uniformly, he sent commissioners to conduct surveys by sworn verdicts of appointed groups of local men. a detailed survey of land holdings and the productive worth of each was made in 1086. the english called it the "doomsday book" because there was no appeal from it. the survey revealed, for instance, that one estate had "on the home farm five plough teams: there are also 25 villeins and 6 cotters with 14 teams among them. there is a mill worth 2s. a year and one fishery, a church and four acres of meadow, wood for 150 pigs and two stone quarries, each worth 2s. a year, and two nests of hawks in the wood and 10 slaves." this estate was deemed to be worth 480s. a year. laxton "had 2 carucates of land [assessed] to the geld. [there is] land for 6 ploughs. there walter, a man of [the lord] geoffrey alselin's has 1 plough and 22 villeins and 7 bordars [a bordar had a cottage and a small amount land in return for supplying small provisions to his lord] having 5 ploughs and 5 serfs and 1 female serf and 40 acres of meadow. wood [land] for pannage [foraging by pigs] 1 league in length and half a league in breadth. in king edward's time it was worth 9 pounds; now [it is worth] 6 pounds." ilbert de laci has now this land, where he has twelve ploughs in the demesne; and forty-eight villani, and twelve bordars with fifteen ploughs, and three churches and three priests, and three mills of ten shillings. wood pastures two miles long, and one broad. the whole manor five miles long and two broad. value in king edward's time sixteen pounds, the same now. that manor of the town of coventry which was individually held was that of the countess of coventry, who was the wife of the earl of mercia. "the countess held in coventry. there are 5 hides. the arable land employs 20 ploughs. in the demesne lands there are 3 ploughs and 7 bondmen. there are 50 villeins and 12 bordars with 20 ploughs. the mill there pay[s] 3 shillings. the woodlands are 2 miles long and the same broad. in king edward's time and afterwards, it was worth 22 pounds [440 s.], now only 11 pounds by weight. these lands of the countess godiva nicholas holds to farm of the king." the survey shows a few manors and monasteries owned a salt-house or salt-pit in the local saltworks, from which they were entitled to obtain salt. in total there were about 110,000 villani [former coerls regarded as customary, irremovable cultivator tenants]; 82,000 bordarii; 7,000 cotarii and cotseti [held land by service of labor or rent paid in produce], and 25,000 servi [landless laborers]. there are no more theows. in the nation, there was a total of about 25,000 servi [landless laborers], over 82,000 borderii, nearly 7,000 coatarii and cotseti [held land or houses by service of labor or rent paid in produce], and nearly 110,000 villani. this survey resulted in the first national tax system of about 6s. per hide of land. the survey also provided the conquerer with a summary of customs of areas. for instance, in oxfordshire, "anyone breaking the king's peace given under his hand and seal to the extent of committing homicide shall be at the king's mercy in respect of his life and members. that is if he be captured. and if he cannot be captured, he shall be considered as an outlaw, and anyone who kills him shall have all his possessions. the king shall take the possessions of any stranger who has elected to live in oxford and who dies in possession of a house in that town, and without any kinfolk. the king shall be entitled to the body and the possessions of any man who kills another within his own court or house excepting always the dower of his wife, if he has a wife who has received dower. the courts of the king and barons became schools of chivalry wherein seven year old noble boys became as pages or valets, wore a dagger and waited upon the ladies of the household. at age fourteen, they were advanced to squires and admitted into more familiar association with the knights and ladies of the court. they perfected their skills in dancing, riding, fencing, hawking, hunting, jousting, and engaged in team sports in which the goal was to put the other side to rout. they learned the knightly art of war. enemy fighters were to be taken and held for ransom rather than killed. those engaging in rebellion were to be pardoned and restored to some or all of their lands and titles. lords' sons could be mutually exchanged with an enemy's as security for peace. after achieving knighthood, a man usually selected a wife from the court at which he grew up. parents tried to send their daughters to a household superior in social status not only to learn manners, but to make a good marriage. a girl who did not marry was often sent to a nunnery; a dowry was necessary before her acceptance. the following incidents of land tenure began (but were not firmly established until the reign of henry ii). each tenant, whether baron or subtenant, was to pay an "aid" in money for ransom if his lord was captured in war, for the knighthood of his lord's eldest son, and for the marriage of his lord's eldest daughter. the aid was theoretically voluntary. land could be held by an heir only if he could fight. the eldest son began to succeed to the whole of the lands in all military tenures. younger sons of great houses became bishops. an heir of a tenant had to pay a heavy "relief" on succession to his estate. the relief replaced the heriot. if there was a delay in proving heirship or paying relief, the lord would hold the land and receive its income in the meantime, often a year. if an heir was still a minor or female, he or she passed into his lord's wardship, in which the lord had guardianship of the heir and possession of the estate, with all its profits. the mother was not made a minor's guardian. no longer was the estate protected by the minor's kin as his birthright. a female heir was expected to marry a man acceptable to the lord. the estate of an heiress and her land was generally sold to the highest bidder. if there were no heirs, the land escheated to the lord. if a tenant committed felony, his land escheated to his lord. the word "felony" came from the latin word meaning "to deceive" and referred to the feudal crime of betraying or committing treachery against one's lord. astrologers resided with the families of the barons. people went to fortune tellers' shops. there was horse racing, steeple races, and chess for recreation. girls had dolls; boys had toy soldiers, spinning tops, toy horses, ships, and wooden models. the state of medicine is indicated by this medical advice brought to the nation by william's son after treatment on the continent: "if thou would have health and vigor shun cares and avoid anger. be temperate in eating and in the use of wine. after a heavy meal rise and take the air sleep not with an overloaded stomach and above all thou must respond to nature when she calls." the conquerer allowed jewish traders to follow him from normandy and settle in separate sections of the main towns. then engaged in long-distance trade, money-changing, and money-lending. they loaned money for interest for the building of castles and cathedrals. christians were not allowed by the church to engage in this usury. the jews could not become citizens nor could they have standing in the local courts. instead, a royal justiciar secured justice for them. they could practice their own religion. william the conquerer was succeeded as king by his son william ii (rufus), who transgressed many of the customs of the nation to get more money for himself. he was killed by an arrow of a fellow hunter while they and william's younger brother henry were hunting together in a crown forest. henry then became king. the law the norman conquerors brought no written law, but affirmed the laws of the nation. two they especially enforced were: anyone caught in the act of digging up the king's road, felling a tree across it, or attacking someone so that his blood spilled on it shall pay a fine to the king. all freemen shall have a surety who would hand him over to justice for his offenses or pay the damages or fines due. if an accused man fled, his surety would have a year to find him to obtain reimbursement. the conquerer proclaimed that: no cattle shall be sold except in towns and before three witnesses. for the sale of ancient chattels, there must be a surety and a warrantor. no man shall be sold over the sea. (this ended the slave trade at the port of bristol.) the death penalty for persons tried by court is abolished. judicial procedure "ecclesiastical" courts were created for bishops to preside over cases concerning the cure of souls and criminal cases, in which the ordeal was used. when the conquerer did not preside over this court, an appeal could be made to him. the hundred and county courts now sat without clergy and handled only "civil" cases. they were conducted by the king's own appointed sheriff. only freemen and not bound villeins had standing in this court. they continued to transact their business in the english language. the local jurisdictions of thegns who had grants of sac and soke or who exercised judicial functions among their free neighbors were now called "manors" under their new owners, who conducted a manor court. the conquerer's royal court was called the "curia regis". when the conquerer wished to determine the national laws, he summoned twelve elected representatives of each county to declare on oath the ancient lawful customs and law as they existed in the time of the popular king edward the confessor. the recording of this law was begun. a person could spend months trying to catch up with the royal court to present a case. sometimes the conquerer sent the justiciar or commissioners to hold his royal court in the various districts. the commissioner appointed groups of local men to give a collective verdict upon oath for each trial he conducted. the conquerer allowed, on an ad hoc basis, certain high-level people such as bishops and abbots and those who made a large payment, to have land disputes decided by an inquiry of recognitors. besides royal issues, the curia regis heard appeals from lower court decisions. it used english, norman, feudal, roman, and canon law legal principles to reach a decision, and was flexible and expeditious. a dispute between a norman and an english man over land or a criminal act could be decided by trial by combat [battle]. each combatant first swore to the truth of his cause and undertook to prove by his body the truth of his cause by making the other surrender by crying "craven" [craving forgiveness]. the combatants used weapons like pick-axes and shields. presumably the man in the wrong would not fight as well because he was burdened with a guilty conscience. although this trial was thought to reflect god's will, it favored the physically fit and adept person. after losing the trial by combat, the guilty person would be punished appropriately. london had its own traditions. all london citizens met at its folkmoot, which was held three times a year to determine its public officers, to raise matters of public concern, and to make ordinances. its criminal court had the power of outlawry as did the county courts. trade, land, and other civil issues were dealt with by the hustings court, which met every monday in the guildhall. the city was divided into wards, each of which was under the charge of an elected alderman [elder man]. (the election was by a small governing body and the most wealthy and reputable men and not a popular election.) the aldermen had special knowledge of the law and a duty to declare it at the hustings court. each alderman also conducted wardmoots in his ward and decided criminal and civil issues between its residents. within the wards were the guilds of the city. the normans, as foreigners, were protected by the king's peace. the entire hundred was the ultimate surety for murder and would have to pay a "murdrum" fine of 31 pounds [46 marks] for the murder of any norman, if the murderer was not apprehended by his lord within a few days. the reaction to this was that the murderer mutilated the corpse to make identification of ethnicity impossible. so the conquerer ordered that every murder victim was assumed to be norman unless proven english. this began a court custom in murder cases of first proving the victim to be english. the royal court decided this case: "at length both parties were summoned before the king's court, in which there sat many of the nobles of the land of whom geoffrey, bishop of coutances, was delegated by the king's authority as judge of the dispute, with ranulf the vicomte, neel, son of neel, robert de usepont, and many other capable judges who diligently and fully examined the origin of the dispute, and delivered judgment that the mill ought to belong to st. michael and his monks forever. the most victorious king william approved and confirmed this decision." chapter 5 the times: 1100-1154 king henry i, son of william the conquerer, furthered peace between the normans and native english by his marriage to a niece of king edward the confessor called matilda. she married him on condition that he grant a charter of rights undoing some practices of the past reigns of william i and william ii. peace was also furthered by the fact that henry i had been born in england and english was his native tongue. the private wars of lords were now replaced by less serious mock battles. henry was a shrewd judge of character and of the course of events, cautious before taking action, but decisive in carrying out his plans. he was faithful and generous to his friends. he showed a strong practical element of calculation and foresight. although illiterate, he was intelligent and a good administrator. he had an efficient intelligence gathering network and an uncanny knack of detecting hidden plans before they became conspiratorial action. he made many able men of inferior social position nobles, thus creating a class of career judges and administrators in opposition to the extant hereditary aristocracy. he loved books and built a palace at oxford to which he invited scholars for lively discussion. queen matilda served as regent of the kingdom in henry's absence, as william's queen had for him. both queens received special coronation apart from their husbands; they held considerable estates which they administered through their own officers, and were frequently composed of escheated honors. matilda was learned and a literary patron. she founded an important literary and scholastic center. her compassion was great and her charities extensive. in london she founded several almshouses and a caregiving infirmary for lepers. these were next to small monastic communities. she also had new roads and bridges built. henry issued charters restoring customs which had been subordinated to royal impositions by previous kings, which set a precedent for later kings. his coronation charter describes certain property rights he restored after the oppressive reign of his brother. "henry, king of the english, to samson the bishop, and urse of abbetot, and to all his barons and faithful vassals, both french and english, in worcestershire, greeting. [1.] know that by the mercy of god and by the common counsel of the barons of the whole kingdom of england i have been crowned king of this realm. and because the kingdom has been oppressed by unjust exactions, i now, being moved by reverence towards god and by the love i bear you all, make free the church of god; so that i will neither sell nor lease its property; nor on the death of an archbishop or a bishop or an abbot will i take anything from the demesne of the church or from its vassals during the period which elapses before a successor is installed. i abolish all the evil customs by which the kingdom of england has been unjustly oppressed. some of those evil customs are here set forth. [2.] if any of my barons or of my earls or of any other of my tenants shall die his heir shall not redeem his land as he was wont to do in the time of my brother [william ii (rufus)], but he shall henceforth redeem it by means of a just and lawful 'relief`. similarly the men of my barons shall redeem their lands from their lords by means of a just and lawful 'relief`. [3.] if any of my barons or of my tenants shall wish to give in marriage his daughter or his sister or his niece or his cousin, he shall consult me about the matter; but i will neither seek payment for my consent, nor will i refuse my permission, unless he wishes to give her in marriage to one of my enemies. and if, on the death of one of my barons or of one of my tenants, a daughter should be his heir, i will dispose of her in marriage and of her lands according to the counsel given me by my barons. and if the wife of one of my tenants shall survive her husband and be without children, she shall have her dower and her marriage portion [that given to her by her father], and i will not give her in marriage unless she herself consents. [4.] if a widow survives with children under age, she shall have her dower and her marriage portion, so long as she keeps her body chaste; and i will not give her in marriage except with her consent. and the guardian of the land, and of the children, shall be either the widow or another of their relations, as may seem more proper. and i order that my barons shall act likewise towards the sons and daughters and widows of their men. [5.] i utterly forbid that the common mintage [a forced levy to prevent loss to the king from depreciation of the coinage], which has been taken from the towns and counties, shall henceforth be levied, since it was not so levied in the time of king edward [the confessor]. if any moneyer or other person be taken with false money in his possession, let true justice be visited upon him. [6.] i forgive all pleas and all debts which were owing to my brother [william ii], except my own proper dues, and except those things which were agreed to belong to the inheritance of others, or to concern the property which justly belonged to others. and if anyone had promised anything for his heritage, i remit it, and i also remit all 'reliefs' which were promised for direct inheritance. [7.] if any of my barons or of my men, being ill, shall give away or bequeath his movable property, i will allow that it shall be bestowed according to his desires. but if, prevented either by violence or through sickness, he shall die intestate as far as concerns his movable property, his widow or his children, or his relatives or one his true men shall make such division for the sake of his soul, as may seem best to them. [8.] if any of my barons or of my men shall incur a forfeit, he shall not be compelled to pledge his movable property to an unlimited amount, as was done in the time of my father [william i] and my brother; but he shall only make payment according to the extent of his legal forfeiture, as was done before the time of my father and in the time of my earlier predecessors. nevertheless, if he be convicted of breach of faith or of crime, he shall suffer such penalty as is just. [9.] i remit all murder-fines which were incurred before the day on which i was crowned king; and such murder-fines as shall now be incurred shall be paid justly according to the law of king edward [by sureties]. [10.] by the common counsel of my barons i have retained the forests in my own hands as my father did before me. [11.] the knights, who in return for their estates perform military service equipped with a hauberk [long coat] of mail, shall hold their demesne lands quit of all gelds [money payments] and all work; i make this concession as my own free gift in order that, being thus relieved of so great a burden, they may furnish themselves so well with horses and arms that they may be properly equipped to discharge my service and to defend my kingdom. [12.] i establish a firm peace in all my kingdom, and i order that this peace shall henceforth be kept. [13.] i restore to you the law of king edward together with such emendations to it as my father [william i] made with the counsel of his barons. [14.] if since the death of my brother, king william [ii], anyone shall have seized any of my property, or the property of any other man, let him speedily return the whole of it. if he does this no penalty will be exacted, but if he retains any part of it he shall, when discovered, pay a heavy penalty to me. witness: maurice, bishop of london; william, bishop-elect of winchester; gerard, bishop of herefore; henry the earl; simon the earl; walter giffard; robert of montfort-sur-risle; roger bigot; eudo the steward; robert, son of haimo; and robert malet. at london when i was crowned. farewell." henry took these promises seriously, which resulted in peace and justice. royal justice became a force to be reckoned with by the multiplication of justices. henry had a great respect for legality and the forms of judicial action. he became known as the "lion of justice". the payment of queen's gold, that is of a mark of gold to the queen out of every hundred marks of silver paid, in the way of fine or other feudal incident, to the king, probably dates from henry i's reign. a woman could inherit a fief if she married. the primary way for a man to acquire control of land was to marry an heiress. if a man were in a lower station than she was, he had to pay for his new social status as well as have royal permission. a man could also be awarded land which had escheated to the king. if a noble woman wanted to hold land in her own right, she had to make a payment to the king. many widows bought their freedom from guardianship or remarriage from the king. women whose husbands were at war also ran the land of their husbands. barons were lords of large holdings of farmland called "manors". many of the lesser barons left their dark castles to live in semifortified stone houses, which usually were of two rooms with rug hangings for drafts, as well as the sparse furniture that had been common to the castle. there were shuttered windows to allow in light, but which also let in the wind and rain when open. the roof was of thatch or narrow overlapping wood shingles. the stone floor was strewn with hay and there was a hearth near the center of the floor, with a louvered smoke hole in the timber roof for escape of smoke. there were barns for grain and animals. beyond this area was a garden, orchard, and sometimes a vineyard. the area was circumscribed by a moat over which there was a drawbridge to a gatehouse. the smaller room was the lord and lady's bedroom. it had a canopied bed, chests for clothing, and wood frames on which clothes could be hung. life on the manor revolved around the larger room, or hall, where the public life of the household was passed. there, meals were served. the daily diet typically consisted of milk, soup, porridge, fish, vegetables, and bread. open hospitality accompanied this communal living. there was little privacy. manor household villeins carried the lord's sheaves of grain to the manor barn, shore his sheep, malted his grain, and chopped wood for his fire. at night some slept on the floor of the hall. others, who were cottars and bordars, had their own dwellings nearby. the manor house of lesser lords or knights was still built of wood, although it often had a stone foundation. about 35% of the land was arable land, about 25% was common pasture land (for grazing only) or meadow land (near a stream or river and used for hay or grazing), and about 15% was woodland. there were these types of land and wasteland on each manor. the arable land was allotted to the villeins in strips to equalize the best and worst land and their distance from the village where the villeins lived. there was three-way rotation of wheat or rye, oats or barley, and fallow land. cows, pigs, sheep, and fowl were kept. the meadow was allocated for hay for the lord's household and each villein's. the villeins held land of their lord for various services such as agricultural labor or raising domestic animals. the villeins worked about half of their time on their lord's fields [his demesne land], which was about a third of the farmland. this work was primarily to gather the harvest and to plough with oxen, using a yoke over their shoulders, and to sow in autumn and lent. they threshed grain on barn floors with flails cut from holly or thorn, and removed the kernels from the shafts by hand. work lasted from sunrise to sunset and included women and children. the older children could herd geese and pigs, and set snares for rabbits. the young children could gather nuts and berries in season and other wild edibles, and could pick up little tufts of wool shed by sheep. the old could stay in the hut and mind the children, keep the fire going and the black pot boiling, sew, spin, patch clothes, and cobble shoes. the old often suffered from rheumatism. many people had bronchitis. many children died of croup [inflammation of the respiratory passages]. life expectancy was probably below thirty-five. the villein retained his customary rights, his house and land and rights of wood and hay, and his right in the common land of his township. customary ways were maintained. the villeins of a manor elected a reeve to communicate their interests to their lord, usually through a bailiff, who directed the labor. sometimes there was a steward in charge of several of a lord's manors, who also held the manorial court for the lord. the steward held his land of the lord by serjeanty, which was a specific service to the lord. other serjeanty services were carrying the lord's shield and arms, finding attendants and esquires for knights, helping in the lord's hunting expeditions, looking after his hounds, bringing fuel, doing carpentry, and forging irons for ploughs. the woodward preserved the timber. the messer supervised the harvesting. the hayward removed any fences from the fields after harvest to allow grazing by cattle and sheep. the coward, bullard, and calvert tended the cows, bulls, and calves; the shepherd, the sheep; and the swineherds the pigs. the ponder impounded stray stock. there were varieties of horses: war horses, riding horses, courier horses, pack horses, and plough horses. the majority of manors were co-extensive with a single village. the villeins lived in the village in one-room huts enclosed by a wood fence, hedge, or stone wall. in this yard was a garden of onions, leeks, mustard, peas, beans, parsley, garlic, herbs, and cabbage and apple, pear, cherry, quince, and plum trees, and beehives. the hut had a high-pitched roof thatched with reeds or straw and low eaves reaching almost to the ground. the walls are built of wood-framing overlaid with mud or plaster. narrow slits in the walls serve as windows, which have shutters and are sometimes covered with coarse cloth. the floor is dirt and may be covered with straw or rushes for warmth, but usually no hearth. in the middle is a wood fire burning on a hearthstone, which was lit by making a spark by striking flint and iron together. the smoke rose through a hole in the roof. at one end of the hut was the family living area, where the family ate on a collapsible trestle table with stools or benches. their usual food was beans and peas, oatmeal gruel, butter, cheese, vegetables, honey, rough bread made from a mixture of wheat, barley, and rye flour, herrings or other salt fish, and some salted or smoked bacon. butter had first been used for cooking and as a medicine to cure constipation and for puny children it could be salted down for the winter. the bread had been roasted on the stones of the fire; later there were communal ovens set up in villages. cooking was done over the fire by boiling in iron pots hung from an iron tripod, or sitting on the hot stones of the fire. they ate from wood bowls using a wood spoon. when they had fresh meat, it could be roasted on a spit. liquids were heated in a kettle. with drinking horns, they drank water, milk, buttermilk, apple cider, mead, ale made from barley malt, and bean and vegetable broth. they used jars and other earthenware, e.g. for storage of salt. they slept on straw mattresses or sacks on the floor or on benches. the villein regarded his bed area as the safest place in the house, as did people of all ranks, and kept his treasures there, which included his farm implements, as well as hens on the beams, roaming pigs, and stalled oxen, cattle, and horses, which were at the other end of the hut. fires were put out at night to guard against fire burning down the huts. the warmth of the animals then helped make the hut warm. around the room are a couple of chests to store salt, meal, flour, a broom made of birch twigs, some woven baskets, the distaff and spindle for spinning, and a simple loom for weaving. all clothes were homemade. they were often coarse, greasy wool and leather made from their own animals. the man wore a tunic of coarse linen embroidered on the sleeves and breast, around with he wore a girdle of rope, leather, or folded cloth. sometimes he also wore breeches reaching below the knee. the woman wore a loose short-sleeved gown, under which was a tight fitting garment with long loose sleeves, and which was short enough to be clear of the mud. if they wore shoes, they were clumsy and patched. some wore a hood-like cap. for really bad weather, a man wore on his head a hood with a very elongated point which could be wrapped around his neck. sometimes a short cape over the shoulders was attached. linen was too expensive for commoners. the absence of fresh food during the winter made scurvy prevalent; in the spring, people eagerly sought "scurvy grass" to eat. occasionally there would be an outbreak of a nervous disorder due to the ergot fungus growing in the rye used for bread. this manifested itself in apparent madness, frightening hallucinations, incoherent shouting, hysterical laughing, and constant scratching of itching and burning sensations. the villein and his wife and children worked from daybreak to dusk in the fields, except for sundays and holydays. he had certain land to farm for his own family, but had to have his grain milled at his lord's mill at the lord's price. he had to retrieve his wandering cattle from his lord's pound at the lord's price. he was expected to give a certain portion of his own produce, whether grain or livestock, to his lord. however, if he fell short, he was not put off his land. the villein, who worked the farm land as his ancestor ceorl had, now was so bound to the land that he could not leave or marry or sell an ox without his lord's consent. if the manor was sold, the villein was sold as a part of the manor. when his daughter or son married, he had to pay a "merchet" to his lord. he could not have a son educated without the lord's permission, and this usually involved a fee to the lord. his best beast at his death, or "heriot", went to his lord. if he wanted permission to live outside the manor, he paid "chevage" yearly. woodpenny was a yearly payment for gathering dead wood. sometimes a "tallage" payment was taken at the lord's will. the villein's oldest son usually took his place on his land and followed the same customs with respect to the lord. for an heir to take his dead ancestor's land, the lord demanded payment of a "relief", which was usually the amount of a year's income but sometimes as much as the heir was willing to pay to have the land. the usual aids were also expected to be paid. a large village also had a smith, a wheelwright, a millwright, a tiler and thatcher, a shoemaker and tanner, a carpenter wainwright and carter. markets were about twenty miles apart because a farmer from the outlying area could then carry his produce to the nearest town and walk back again in the daylight hours of one day. in this local market he could buy foodstuffs, livestock, household goods, fuels, skins, and certain varieties of cloth. the cloth was crafted by local weavers, dyers, and fullers. the weaver lived in a cottage with few and narrow windows with little furniture. he worked in the main, and sometimes the only, room. first the raw wool was washed with water at the front door to remove the grease. then its fibers were disentangled and made fine with hand cards with thistle teeth, usually by the children. then it was spun by a spinning wheel into thread, usually by the wife. the threads forming the warp of the fabric were fastened parallel on a double frame, of which the two ends rose and fell alternately and were worked by two pedals. to make the weft, the weaver threw a shuttle between them, from one hand to the other. since one loom could provide work for about six spinners, he had his wool spun by other spinners in their cottages. sometimes the master weaver had an apprentice or workman working and living with him, who had free board and lodging and an annual wage. then a fuller made the cloth thick and dense by washing, soaping, beating, and agitating it, with the use of a community watermill which could be used by anyone for a fixed payment. the cloth dried through the night on a rack outside the cottage. the weaver then took his cloth, usually only one piece, to the weekly market to sell. the weavers stood at the market holding up their cloth. the cloth merchant who bought the cloth then had it dyed or dressed according to his requirements. its surface could be raised with teazleheads and cropped or sheared to make a nap. some cloth was sold to tailors to make into clothes. often a weaver had a horse for travel, a cow for milk, chickens for eggs, perhaps a few cattle, and some grazing land. butchers bought, slaughtered, and cut up animals to sell as meat. some was sold to cooks, who sold prepared foods. the hide was bought by the tanner to make into leather. the leather was sold to shoemakers and glovemakers. millers bought harvested grain to make into flour. flour was sold to bakers to make into breads. wood was bought by carpenters and by coopers, who made barrels, buckets, tubs, and pails. tilers, oil-makers and ropemakers also bought raw material to make into finished goods for sale. wheelwrights made ploughs, harrows, carts, and later wagons. smiths and locksmiths worked over their hot fires. games with dice were sometimes played. in winter, youths iceskated with bones fastened to their shoes. they propelled themselves by striking the ice with staves shod with iron. on summer holydays, they exercised in leaping, shooting with the bow, wrestling, throwing stones, and darting a thrown spear. the maidens danced with timbrels. since at least 1133, children's toys included dolls, drums, hobby horses, pop guns, trumpets, and kites. the cold, indoors as well as outdoors, necessitated that people wear ample and warm garments. men and women of position dressed in long full cloaks reaching to their feet, sometimes having short full sleeves. the cloak generally had a hood and was fastened at the neck with a brooch. underneath the cloak was a simple gown with sleeves tight at the wrist but full at the arm-hole, as if cut from the same piece of cloth. a girdle or belt was worn at the waist. when the men were hunting or working, they wore gown and cloak of knee length. men wore stockings to the knee and shoes. the fashion of long hair on men returned. the nation grew with the increase of population, the development of towns, and the growing mechanization of craft industries. there were watermills for crafts and for supplying and draining water in all parts of the nation. in flat areas, slow rivers could be supplemented by creating artifical waterfalls, for which water was raised to the level of reservoirs. there were also some ironsmelting furnaces. coal mining underground began as a family enterprise. stone bridges over rivers could accommodate one person traveling by foot or by horseback and were steep and narrow. the wheelbarrow came into use to cart materials for building castles and cathedrals. merchants, who had come from the low end of the knightly class or high end of the villein class, settled around the open market areas, where main roads joined. they had plots narrow in frontage along the road and deep. their shops faced the road, with living space behind or above their stores. town buildings were typically part stone and part timber as a compromise between fire precautions and expense. towns, as distinct from villages, had permanent markets. as towns grew, they paid a fee to obtain a charter for self-government from the king giving the town judicial and commercial freedom. they were literate enough to do accounts. so they did their own valuation of the sum due to the crown so as not to pay the sheriff any more than that. these various rights were typically expanded in future times, and the towns received authority to collect the sum due to the crown rather than the sheriff. this they did by obtaining a charter renting the town to the burghers at a fee farm rent equal to the sum thus deducted from the amount due from the county. such a town was called a "borough" and its citizens or landholding freemen "burgesses". to be free of something meant to have exclusive rights and privileges with respect to it. selling wholesale could take place only in a borough. burgesses were free to marry. they were not subject to defense except of the borough. they were exempt from attendance at county and hundred courts. the king assessed a tallage [ad hoc tax] usually at ten per cent of property or income. in the boroughs, merchant and manufacturing guilds controlled prices and assured quality. the head officer of the guild usually controlled the borough, which excluded rival merchant guilds. a man might belong to more than one guild, e.g. one for his trade and another for religion. craft guilds grew up in the towns, such as the tanners at oxford, which later merged with the shoemakers into a cordwainers' guild. there were weavers' guilds in several towns, including london, which were given royal sanction and protection for annual payments (twelve pounds of silver for london. they paid an annual tribute and were given a monopoly of weaving cloth within a radius of several miles. guild rules covered attendance of the members at church services, the promotion of pilgrimages, celebration of masses for the dead, common meals, relief of poor brethren and sisters, the hours of labor, the process of manufacture, the wages of workmen, and technical education. henry standardized the yard as the length of his own arm. trades and crafts, each of which had to be licensed, grouped together by specialty in the town. cloth-makers, dyers, tanners, and fullers were near an accessible supply of running water, upon which their trade depended. streets were often named by the trade located there, such as butcher row, pot row, cordwainer row, ironmonger row, wheeler row, and fish row. hirers of labor and sellers of wheat, hay, livestock, dairy products, apples and wine, meat, poultry, fish and pies, timber and cloth all had a distinct location. some young men were apprenticed to craftsmen to assist them and learn their craft. london had at least twenty wards, each governed by its own alderman. most of them were named after people. london was ruled by sixteen families linked by business and marriage ties. these businesses supplied luxury goods to the rich and included the goldsmiths [sold cups, dishes, girdles, mirrors, purses knives, and metal wine containers with handle and spout], vintners [wine merchants], mercers [sold textiles, haberdashery, combs, mirrors, knives, toys, spices, ointments, and potions], drapers, and pepperers, which later merged with the spicers to become the "grocers", skinners, tanners, shoemakers, woolmen, weavers, fishmongers, armorers, and swordsmiths. there were bakehouses at which one could leave raw joints of meat to be cooked and picked up later. these businesses had in common four fears: royal interference, foreign competition, displacement by new crafts, and violence by the poor and escaped villeins who found their way to the city. when a non-freeholder stayed in london he had to find for frankpledge, three sureties for good behavior. failure to do so was a felony and the ward would eject him to avoid the charge of harboring him with its heavy fine. the arrival of ships with cargoes from continental ports and their departure with english exports was the regular waterside life below london bridge. many foreign merchants lived in london. imports included timber, hemp, fish, and furs. there was a fraternal organization of citizens who had possessed their own lands with sac and soke and other customs in the days of king edward. there were public bath-houses, but they were disreputable. a lady would take an occasional bath in a half cask in her home. the church warned of evils of exposing the flesh, even to bathe. middlesex county was london's territory for hunting and farming. all london craft work was suspended for one month at harvest time. london received this charter for self-government and freedom from the financial and judicial organization of the county: "henry, by the grace of god, king of england, to the archbishop of canterbury and the bishops, abbots, earls, barons, justiciars, sheriffs and all his loyal subjects, both french and english, throughout the whole of england greeting. 1. be it known to you that i have granted middlesex to my citizens of london to be held on lease by them and their heirs of me and my heirs for 300 pounds paid by tale [yearly], upon these terms: that the citizens themselves [may] appoint a sheriff, such as they desire, from among themselves, and a justiciar, such as they desire, from among themselves, to safeguard the pleas of my crown [criminal cases] and to conduct such pleas. and there shall be no other justiciar over the men of london. 2. and the citizens shall not take part in any [civil] case whatsoever outside the city walls. 1) and they shall be exempt from the payment of scot and danegeld and the murder fine. 2) and none of them shall take part in trial by combat. 3) and if any of the citizens has become involved in a plea of the crown, he shall clear himself, as a citizen of london, by an oath which has been decreed in the city. 4) and no one shall be billeted [lodged in a person's house by order of the king] within the walls of the city nor shall hospitality be forcibly exacted for anyone belonging to my household or to any other. 5) and all the citizens of london and all their effects [goods] shall be exempt and free, both throughout england and in the seaports, from toll and fees for transit and market fees and all other dues. 6) and the churches and barons and citizens shall have and hold in peace and security their rights of jurisdiction [in civil and criminal matters] along with all their dues, in such a way that lessees who occupy property in districts under private jurisdiction shall pay dues to no one except the man to whom the jurisdiction belongs, or to the official whom he has placed there. 7) and a citizen of london shall not be amerced [fined by a court when the penalty for an offense is not designated by statute] to forfeiture of a sum greater than his wergeld, [hereby assessed as] 100 shillings, in a case involving money. 8) and further there shall be no miskenning [false plea causing a person to be summoned to court] in a husting [weekly court] or in a folkmoot [meeting of the community], or in any other court within the city. 9) and the hustings [court] shall sit once a week on monday. 10) and i assure to my citizens their lands and the property mortgaged to them and the debts due to them both within the city and without. 11) and with regard to lands about which they have pled in suit before me, i shall maintain justice on their behalf, according to the law of the city. 12) and if anyone has exacted toll or tax from citizens of london, the citizens of london within the city shall [have the right to] seize [by process of law] from the town or village where the toll or tax was exacted a sum equivalent to that which the citizen of london gave as toll and hence sustained as loss. 13) and all those who owe debts to citizens shall pay them or shall clear themselves in london from the charge of being in debt to them. 14) but if they have refused to pay or to come to clear themselves, then the citizens to whom they are in debt shall [have the right to] seize [by process of law] their goods [including those in the hands of a third party, and bring them] into the city from the [town, village or] county in which the debtor lives [as pledges to compel appearance in court]. 15) and the citizens shall enjoy as good and full hunting rights as their ancestors ever did, namely, in the chilterns, in middlesex, and in surrey. witnessed at westminster." the above right not to take part in any case outside the city relieved london citizens from the burden of traveling to wherever the king's court happened to be, the disadvantage of not knowing local customs, and the difficulty of speaking in the language of the king's court rather than in english. the right of redress for tolls exacted was new because the state of the law was that the property of the inhabitants was liable to the king or superior lord for the common debt. newcastle-on-tyne was recognized by the king as having certain customs, so the following was not called a grant: "these are the laws and customs which the burgesses of newcastle upon tyne had in the time of henry king of england and ought to have. [1] burgesses can distrain [take property of another until the other performs his obligation] upon foreigners within, or without their own market, within or without their own houses, and within or without their own borough without the leave of the reeve, unless the county court is being held in the borough, and unless [the foreigners are] on military service or guarding the castle. [2] a burgess cannot distrain upon a burgess without the leave of the reeve. [3] if a burgess have lent anything of his to a foreigner, let the debtor restore it in the borough if he admits the debt, if he denies it, let him justify himself in the borough. [4] pleas which arise in the borough shall be held and concluded there, except pleas of the crown. [5] if any burgess be appealed [sued] of any plaint, he shall not plead without the borough, unless for default of [the borough] court. [6] nor ought he to answer without day and term, unless he have fallen into 'miskenning'[error in pleading], except in matters which pertain to the crown. [7] if a ship have put in at tynemouth and wishes to depart, the burgesses may buy what they will [from it]. [8] if a plea arise between a burgess and a merchant, it shall be concluded before the third ebb of the tide. [9] whatever merchandise a ship has brought by sea must be landed, except salt; and herring ought to be sold in the ship. [10] if any man have held land in burgage for a year and a day, lawfully and without claim, he shall not answer a claimant, unless the claimant have been without the realm of england, or a child not of age to plead. [11] if a burgess have a son, he shall be included in his father's freedom if he be with his father. [12] if a villein come to dwell in the borough, and dwell there a year and a day as a burgess, he shall abide altogether, unless notice has been given by him or by his master that he is dwelling for a term. [13] if any man appeal [sue] a burgess of any thing, he cannot do [trial by] battle with the burgess, but the burgess shall defend himself by his law, unless it be of treason, whereof he is bound to defend himself by [trial by] battle. [14] neither can a burgess do [trial by] battle against a foreigner, unless he first go out of the borough. [15] no merchant, unless he be a burgess, may buy [outside] the town either wool or leather or other merchandise, nor within the borough except [from] burgesses. [16] if a burgess incur forfeit, he shall give six ounces [10s.] to the reeve. [17] in the borough there is no merchet [payment for marrying off a daughter] nor heriot nor bloodwite [fine for drawing blood] nor stengesdint [fine for striking with a stick]. [18] every burgess may have his own oven and hand-mill if he will, saving the right of the king's oven. [19] if a woman be in forfeit for bread or beer, no one ought to interfere but the reeve. if she forfeit twice, she shall be chastised by her forfeit. if three times, let justice be done on her. [20] no one but a burgess may buy webs [woven fabrics just taken off the loom] to dye, nor make nor cut them. [21] a burgess may give and sell his land and go whither he will freely and quietly unless there be a claim against him." the nation produced sufficient iron, but a primitive steel [iron with carbon added] was imported. it was scarce and expensive. steel was used for tools, instruments, weapons and armor. ships could carry about 300 people. navigation was by simple charts that included wind direction for different seasons and the direction of north. the direction of the ship could be generally determined when the sky was clear by the position of the sun during the day or the north star during the night. plays about miracles wrought by holy men or saints or the sufferings and fortitude of martyrs were performed, usually at the great church festivals. most nobles could read, though writing was still a specialized craft. there were books on animals, plants, and stones. the lives of the saints as told in the book "the golden legend" were popular. the story of the early king arthur was told in the book "the history of the kings of england". the story at this time stressed arthur as a hero and went as follows: arthur became king at age 15. he had an inborn goodness and generosity as well as courage. he and his knights won battles against foreign settlers and neighboring clans. once, he and his men surrounded a camp of foreigners until they gave up their gold and silver rather than starve. arthur married guenevere and established a court and retinue. leaving britain in the charge of his nephew modred, he fought battles on the continent for land to give to his noblemen who did him service in his household and fought with him. when arthur returned to britain, he made battle with his nephew modred who had crowned himself king. arthur's knight gawain, the son of his sister, and the enemy modred were killed and arthur was severely wounded. arthur told his kinsman constantine to rule britain as king in his place. the intellectual world included art, secular literature, law, and medicine. there were about 90 physicians. the center of government was a collection of tenants-in-chief, whose feudal duty included attendance when summoned, and certain selected household servants of the king. the exchequer became a separate body. the payments in kind, such as grain or manual services, from the royal demesnes had been turned into money payments. the great barons made their payments directly to the exchequer. the income from royal estates was received by the exchequer and then commingled with the other funds. each payment was indicated by notches on a stick, which was then split so that the payer and the receiver each had a half showing the notches. the exchequer was the great school for training statesmen, justices, and bishops. the chancellor managed the domestic matters of the crown's castles and lands. the great offices of state were sold for thousands of pounds, which caused their holders to be on their best behavior for fear of losing their money by being discharged from office. one chancellor paid henry about 3000 pounds for the office. henry brought sheriffs under his strict control, free from influence by the barons. he maintained order with a strong hand, but was no more severe than his security demanded. forests were still retained by kings for their hunting of boars and stags. a master-forester maintained them. the boundaries of the royal forests were enlarged. they comprised almost one-third of the kingdom. certain inhabitants thereof supplied the royal foresters with meat and drink and received certain easements and rights of common therein. the forest law reached the extreme of severity and cruelty under henry i. punishments given included blinding, emasculation, and execution. offenders were rarely allowed to substitute a money payment. when fines were imposed they were heavy. a substantial number of barons and monasteries were heavily in debt to the jews. the interest rate was 43% (2d. per pound per week). the king taxed the jews at will. the law henry restored the death penalty (by hanging) for theft and robbery, but maintained william i's punishment of mutilation by blinding and severing of limbs for other offenses, for example, bad money. he decreed in 1108 that false and bad money should be amended, so that he who was caught passing bad denarii should not escape by redeeming himself but should lose his eyes and members. and since denarii were often picked out, bent, broken, and refused, he decreed that no denarius or obol, which he said were to be round, or even a quadrans, if it were whole, should be refused. (money then reached a higher level of perfection, which was maintained for the next century.) the forest law stated that: "he that doth hunt a wild beast and doth make him pant, shall pay 10 shillings: if he be a freeman, then he shall pay double. if he be a bound man, he shall lose his skin." a "verderer" was responsible for enforcing this law, which also stated that: "if anyone does offer force to a verderer, if he be a freeman, he shall lose his freedom, and all that he hath. and if he be a villein, he shall lose his right hand." further, "if such an offender does offend so again, he shall lose his life." a wife's dower is one-third of all her husband's freehold land, unless his endowment of her at their marriage was less than onethird. counterfeiting law required that "if any one be caught carrying false coin, the reeve shall give the bad money to the king however much there is, and it shall be charged in the render of his farm [payment] as good, and the body of the offender shall be handed over to the king for judgment, and the serjeants who took him shall have his clothes." debts to townsmen were recoverable by this law: "if a burgess has a gage [a valuable object held as security for carrying out an agreement] for money lent and holds this for a whole year and a day, and the debtor will not deny the debt or deliver the gage, and this is proved, the burgess may sell the gage before good witnesses for as much as he can, and deduct his money from the sum. if any money is over he shall return it to the debtor. but if there is not enough to pay him, he shall take distress again for the amount that is lacking." past due rent in a borough was punishable by payment of 10s. as fine. judicial activity encouraged the recording of royal legislation in writing which both looked to the past and attempted to set down law current in henry's own day. the "liberi quadripartitus" aimed to include all english law of the time. this showed an awareness of the ideal of written law as a statement of judicial principles as well as of the practice of kingship. in this way, concepts of roman law used by the normans found their way into english law. church law provided that only consent between a man and woman was necessary for marriage. there needn't be witnesses, ceremony, nor consummation. consent could not be coerced. penalties in marriage agreements for not going through with the marriage were deemed invalid. villeins and slaves could marry without their lords' or owners' permission. a couple living together could be deemed married. persons related by blood within certain degrees, which changed over time, of consanguinity were forbidden to marry. this was the only ground for annulment of a marriage. a legal separation could be given for adultery, cruelty, or heresy. annulment, but not separation, could result in remarriage. fathers were usually ordered to provide some sustenance and support for their illegitimate children. the court punished infanticide and abortion. counterfeiters of money, arsonists, and robbers of pilgrims and merchants were to be excommunicated. church sanctuary was to be given to fugitives of violent feuds until they could be given a fair trial. judicial procedure courts extant now are the royal court, the king's court of the exchequer, county courts, and hundred courts, which were under the control of the king. his appointed justices administered justice in these courts on regular circuits. the sheriff now only produced the proper people and preserved order at the county courts and presided over the nonroyal pleas and hundred courts. he empaneled recognitors, made arrests, and enforced the decisions of the royal courts. also there are manor courts, borough courts, and ecclesiastical courts. in the manor courts, the lord's reeve generally presided. the court consisted of the lord's vassals and declared the customs and law concerning such offenses as failure to perform services and trespass on manorial woods, meadow, and pasture. the king's royal court heard issues concerning the crown and breaches of the king's peace, which included almost all criminal matters. the most serious offenses: murder, robbery, rape, abduction, arson, treason, and breach of fealty, were now called felonies. other offenses were: housebreaking, ambush, certain kinds of theft, premeditated assault, and harboring outlaws or excommunicants. henry personally presided over hearings of important legal cases. he punished crime severely. offenders were brought to justice not only by the complaint of an individual or local community action, but by official prosecutors. a prosecutor was now at trials as well as a justice. trial is still by compurgation. trial by combat was relatively common. these offenses against the king placed merely personal property and sometimes land at the king's mercy. thus the crown increased the range of offenses subject to its jurisdiction and arrogated to itself profits from the penalties imposed. a murderer could be given royal pardon from the death penalty so that he could pay compensation to the relatives. the royal court also heard these offenses against the king: fighting in his dwelling, contempt of his writs or commands, encompassing the death or injury of his servants, contempt or slander of the king, and violation of his protection or his law. it heard these offenses against royal authority: complaints of default of justice or unjust judgment, pleas of shipwrecks, coinage, treasure-trove [money buried when danger approached], forest prerogatives, and control of castle building. slander of the king, the government, or high officials was punishable as treason, felony, misprison of treason, or contempt, depending on the rank and office of the person slandered and the degree of guilt. henry began the use of writs to intervene in civil matters, such as inquiry by oath and recogniton of rights as to land, the obligations of tenure, the legitimacy of heirs, and the enforcement of local justice. the crown used its superior coercive power to enforce the legal decisions of other courts. these writs allowed people to come to the royal court on certain issues. there was a vigorous interventionism in the land law subsequent to appeals to the king in landlord-tenant relations, brought by a lord or by an undertenant. assizes [those who sit together] of local people who knew relevant facts were put together to assist the court. henry appointed some locally based justices, called justiciars. also, he sent justices out on eyres [journeys] to hold assizes. this was done at special sessions of the county courts, hundred courts, and manor courts. records of the verdicts of the royal court were sent with these itinerant justices for use as precedent in these courts. thus royal authority was brought into the localities and served to check baronial power over the common people. these itinerant justices also transacted the local business of the exchequer in each county. henry created the office of chief justiciar, which carried out judicial and administrative functions. the royal court retained cases of gaol delivery [arrested person who had been held in gaol was delivered to the court] and amercements. it also decided cases in which the powers of the popular courts had been exhausted or had failed to do justice. the royal court also decided land disputes between barons who were too strong to submit to the county courts. the king's court of the exchequer reviewed the accounts of sheriffs, including receipts and expenditures on the crown's behalf as well as sums due to the treasury, located still at winchester. these sums included rent from royal estates, the danegeld land tax, the fines from local courts, and aid from baronial estates. its records were the "pipe rolls", so named because sheets of parchment were fastened at the top, each of which dropped into a roll at the bottom and so assumed the shape of a pipe. the county and hundred courts assessed the personal property of individuals and their taxes due to the king. the county court decided land disputes between people who had different barons as their respective lords. the free landholders were expected to attend county, hundred, and manor courts. they owed "suit" to it. the suitors found the dooms [laws] by which the presiding officer pronounced the sentence. the county courts heard cases of theft, brawling, beating, and wounding, for which the penalties could be exposure in the pillory or stocks. the pillory held an offender's head and hands in holes in boards, and the stocks held one's hands and feet. here the public could scorn and hit the offender or throw fruit, mud, and dead cats at him. for sex offenders and informers, stones were usually thrown. sometimes a person was stoned to death. the county courts met twice yearly. if an accused failed to appear after four successive county courts, he was declared outlaw at the fifth and forfeited his civil rights and all his property. he could be slain by anyone at will. the hundred court met once a month to hear neighborhood disputes, for instance concerning pastures, meadows and harvests. usually present was a priest, the reeve, four representative men, and sometimes the lord or his steward in his place. sometimes the chief pledges were present to represent all the men in their respective frankpledges. the bailiff presided over all these sessions except two, in which the sheriff presided over the full hundred court to take the view of frankpledge, which was required for those who did not have a lord to answer for him. the barons held court on their manors at a "hall-mote" for issues arising between people living on the manor, such as bad ploughing on the lord's land or letting a cow get loose on the lord's land, and land disputes. this court also made the decision of whether a certain person was a villein or freeman. the manor court took over issues which had once been heard in the vill or hundred court. the baron charged a fee for hearing a case and received any fines he imposed, which amounted to significant "profits of justice". boroughs held court on trading and marketing issues in their towns such as measures and weights, as well as issues between people who lived in the borough. the borough court was presided over by a reeve who was a burgess as well as a royal official. wealthy men could employ professional pleader-attorneys to advise them and to speak for them in a court. the ecclesiastical courts dealt, until the time of henry viii, with family matters such as marriage, annulments, marriage portions, legitimacy, undue wife-beating, child abuse, orphans, bigamy, adultery, incest, fornication, personal possessions, defamation, slander which did not cause material loss (and therefore had no remedy in the temporal courts), libel, perjury, usury, mortuaries, sacrilege, blasphemy, heresy, tithe payments, church fees, certain offences on consecrated ground, and breaches of promises under oath, e.g. to pay a debt, provide services, or deliver goods. they decided inheritance and will issues which did not concern land, but only personal property. this developed from the practice of a priest usually hearing a dying person's will as to the disposition of his goods and chattel when he made his last confession. it provided guardianship of infants during probate of their personal property. trial was basically by compurgation, with oath-helpers swearing to or against the veracity of the alleged offender's oath. an alleged offender could be required to answer questions under oath, thus giving evidence against himself. the ecclesiastical court's penalties were intended to reform and determined on a case-by-case basis. the canon law of christendom was followed, without much change by the english church or nation. penalties could include confession and public repentance of the sin before the parish, making apologies and reparation to persons affected, public embarrassment such as being dunked in water (e.g. for women scolds), walking a route barefoot and clad only in one's underwear, whippings, extra work, fines, and imprisonment in a "penitentiary" to do penance. the ultimate punishment was excommunication with social ostracism. then no one could give the person drink, food, or shelter and he could speak only to his spouse and servants. excommunication included denial of the sacraments of baptism, penance, mass, and extreme unction [prayers for spiritual healing] at death; which were necessary for salvation of the soul; and the sacrament of confirmation of one's belief in the tenets of christianity. a person could also be denied a christian burial in consecrated ground. however, the person could still marry and make a will. the king's court could order a recalcitrant excommunicant imprisoned until he satisfied the claims of the church. excommunication was usually imposed for failure to obey an order or showing contempt of the law or of the courts. it required a hearing and a written reason. if this measure failed, it was possible to turn the offender over to the state for punishment, e.g. for blasphemy or heresy. blasphemy [speaking ill of god] was thought to cause god's wrath expressed in famine, pestilence, and earthquake and was usually punished by a fine or corporal punishment, e.g. perforation or amputation of the tongue. it was tacitly understood that the punishment for heresy was death by burning. there were no heresy cases up to 1400 and few after that. the state usually assured itself the sentence was just before imposing it. the court of the rural dean was the ecclesiastical parallel of the hundred court of secular jurisdiction and usually had the same land boundaries. the archdeacons, who had been ministers of the bishop in all parts of his diocese alike, were now each assigned to one district, which usually had the same boundaries as the county. henry acknowledged occasional appellate authority of the pope, but expected his clergy to elect bishops of his choice. there was a separate judicial system for the laws of the forest. there were itinerant justices of the forests and four verderers of each forest county, who were elected by the votes of the full county court, twelve knights appointed to keep vert [everything bearing green leaves] and venison, and foresters of the king and of the lords who had lands within the limits of the forests. every three years, the officers visited the forests in preparation for the courts of the forest held by the itinerant justices. the inferior courts were the wood-mote, held every forty days, and the swein [freeman or freeholder within the forest]-mote, held three times yearly before the verderers as justices, in which all who were obliged to attend as suitors of the county court to serve on juries and inquests were to be present. chapter 6 the times: 1154-1215 king henry ii and queen eleanor, who was twelve years older, were both intelligent, educated, energetic, well-traveled, and experienced in affairs of state. henry was the first norman king to be fully literate and he learned latin. he had many books and maintained a school. eleanor often served as regent during henry's reign and the reigns of their two sons: richard i, the lionhearted, and john. she herself headed armies. henry ii was a modest, courteous, and patient man with an astonishing memory and strong personality. he was indifferent to rank and impatient of pomp to the point of being careless about his appearance. he usually dressed in riding clothes and was often unkempt. he was thrifty, but generous to the poor. he was an outstanding legislator and administrator. henry ii took the same coronation oath as edward the confessor regarding the church, laws, and justice. not only did he confirm the charter of his grandfather henry i, but he revived and augmented the laws and institutions of his grandfather and developed them to a new perfection. almost all legal and fiscal institutions appear in their first effective form during his reign. for instance, he institutionalized the assize for a specific function in judicial proceedings, whereas before it had been an ad hoc body used for various purposes. the term "assize" here means the sitting of a court or council. it came to denote the decisions, enactments, or instructions made at such. henry's government practiced a strict economy and he never exploited the growing wealth of the nation. he abhorred bloodshed and the sacrifice of men's lives. so he strove diligently to keep the peace, when possible by gifts of money, but otherwise with armed force. robbers were hanged and any man who raped a woman was castrated. foreign merchants with precious goods could journey safely through the land from fair to fair. these fairs were usually held in the early fall, after sheep-shearing and harvesting. foreign merchants bought wool cloth and hides. frankpledge was revived, now applying to the unfree and villeins. no stranger could stay overnight (except for one night in a borough), unless sureties were given for his good behavior. a list of such strangers was to be given to itinerant justices. henry had character and the foresight to build up a centralized system of government that would survive him. he learned about the counties' and villages' varying laws and customs. then, using the model of roman law, he gave to english institutions that unity and system which in their casual patch-work development had been lacking. henry's government and courts forged permanent direct links between the king and his subjects which cut through the feudal structure of lords and vassals. he developed the methods and structure of government so that there was a great increase in the scope of administrative activity without a concurrent increase of personal power of the officials who discharged it. the government was self-regulating, with methods of accounting and control which meant that no official, however exalted, could entirely escape the surveillance of his colleagues and the king. at the same time, administrative and judicial procedures were perfected so that much which had previously required the king's personal attention was reduced to routine. the royal household translated the royal will into action. in the early 1100s, there had been very little machinery of central government that was not closely associated with the royal household. there was a chief justiciar for legal matters and a treasurer. royal government was largely built upon what had once been purely domestic offices. kings had called upon their chaplains to pen letters for them. by henry ii's reign, the chancery was a highly efficient writing office through which the king's will was expressed in a flow of writs, and the chancellor an important and highly rewarded official, but he was still responsible for organizing the services in the royal chapel. similarly, the chamberlains ran the household's financial departments. they arranged to have money brought in from a convenient castle treasury, collected money from sheriffs or the king's debtors, arranged loans with the usurers, and supervised the spending of it. it was spent for daily domestic needs, the king's alms-giving, and the mounting of a military campaign. but they were still responsible for personal attendance upon the king in his privy chamber, taking care of his valuable furs, jewels, and documents, and changing his bedlinens. there were four other departments of the household. the steward presided over the hall and kitchens and was responsible for supplying the household and guests with food supplies. the butler had duties in the hall and cellars and was responsible for the supply of wine and ale. the marshall arranged lodgings for the king's court as it moved about from palaces to hunting lodges, arranged the pay of the household servants, and supervised the work of ushers, watchmen, fire tenders, messengers and huntsmen. the constable organized the bodyguard and escorts, arranged for the supply of castles, and mustered the royal army. the offices of steward, constable, chamberlain, butler were becoming confined to the household and hereditary. the justiciar, chancellor, and treasurer are becoming purely state offices and are simply sold or rented, until public pressure resulted in a requirement of ability. henry's council included all his tenants-in-chief, which included archbishops, bishops, abbots, priors, earls, barons, knights and socage tenants of the crown, whether they made payments directly to him or through a sheriff. the higher ones were served with a writ addressed to them personally. knights and below were summoned by a general writ to the sheriff. henry brought order and unity by making the king's royal court the common court of the land. its purpose was to guard the king's peace by protecting all people of free status throughout the nation and correct the disparity in punishments given by local courts. heretofore, the scope of the king's peace had varied to cover as little as the king's presence, his land, and his highway. the royal demesne had shrunk to about 5% of the land. the common law for all the nation was established by example of the king's royal court. henry erected a basic, rational framework for legal processes which drew from tradition but lent itself to continuous expansion and adaptation. a system of writs originated well-defined actions in the royal courts. each court writ had to satisfy specific conditions for this court to have jurisdiction over an action or event. this system determined the royal court's jurisdiction over the church, lords, and sheriffs. it limited the jurisdiction of all other courts and subordinated them to the royal court. inquests into any misdeeds of sheriffs were held, which could result in their dismissal. henry and eleanor spoke many languages and liked discussing law, philosophy, and history. so they gathered wise and learned men about them, who became known as courtiers, rather than people of social rank. they lived in the great and strong tower of london, which had been extended beyond the original white tower, as had other castles, so that the whole castle and grounds were defended instead of just the main building. the tower of london was in the custody of one of the two justiciars. on the west were two strongly fortified castles surrounded by a high and deeply entrenched wall, which had seven double gates. towers were spaced along the north wall and the thames river flowed below the south wall. to the west was the city, where royal friends had residences with adjoining gardens near the royal palace at westminster. the court was a center of culture as well as of government. the game of backgammon was played. people wore belts with buckles, usually brass, instead of knotting their belts. london extended about a mile along the thames and about half a mile inland. it had narrow twisting lanes, some with a ditch down the middle for water runoff. most of its houses were two stories, the ground floor having booths and workshops, and the upper floor living space. most of the houses were wooden structures. the richer merchants' and knights' houses were built of stone. walls between houses had to be stone to a height of 16 feet and thatched roofs were banned because there had been many fires. there was poor compliance, but some roofs were tiled with red-brick tiles. the population was about 40,000. there were over 126 churches for public worship, thirteen monasteries (including nunneries), and st. paul's cathedral. all were built of stone. the churches gave a place of worship for every 300 inhabitants and celebrated feast days, gave alms and hospitality to strangers, confirmed betrothals or agreements of marriage, celebrated weddings, conducted funerals, and buried the dead. the synod of westminster of 1175 prescribed that all marriages were to be performed by the church. church law required a warning prior to suspension or excommunication. monastic, cathedral, and parish schools taught young boys grammar so they could sing and read in church services. nuns taught girls. fish but no meat was eaten on fridays. there was dark rye bread and expensive white wheat bread. vegetables included onions, leeks, and cabbage. fruits included apples, pears, plums, cherries, and strawberries. water was obtained from streams running through the town to the thames and from springs. only the rich, palaces, and churches could afford beeswax candles; others had home-made tallow [cow or sheep fat] candles which smelled and gave off smoke. most people washed their bodies. even the poor had beds and bed clothes. few babies survived childhood. if a man reached 30, he could expect to live until age 50. thousands of londoners died during a hot summer from fevers, plague and the like. in london, bells heralded the start and finish of all organized business. the sellers of merchandise and hirers of labor were distributed every morning into their several localities according to their trade. vendors, craftsmen, and laborers had their customary places. some vendors walked the streets announcing their wares for sale. there were craft guilds of bakers, butchers, clothworkers, and saddlers, as well as of weavers. vendors on the thames river bank sold cooked fish caught from the river and wine from ships and wine cellars. cook shops sold roasted meats covered with hotly spiced sauces. london bridge was built of stone for the first time. it was supported by a series of stone arches standing on small man-made islands. it had such a width that a row of wood houses and a chapel was built on top of it. in the spring it was impassable by ships because the flow of water under it varied in height on either side of the bridge by several feet at half tide. the bridge had the effect of slowing down the flow upstream, which invited wherries and rowboats and stately barges of the nobility. in winters in which it froze over, there was ice skating, ice boating, and fishing through holes in the ice. outside each city gate were clusters of ragged buildings, small monasteries and hostelries, groups of huntsmen's kennels, and fencing schools. outside one of the gates, a horse market was held every week. horses wore horseshoes made of iron or of a crude steel. from the southwest gate of the city along the north river bank toward westminster, there was a gradually extending line of rich men's mansions and bishops' palaces. on the southern bank of the thames river was growing the disorderly suburb of southwark, with fishermen's and boatmens' hovels, and taverns and brothels that were frequented by drunkards, rakes, and whores. on the north side of the city was a great forest with fields and wells where students and other young men from the city took walks in the fresh evening air. in some fields, countryfolk sold pigs, cows, oxen and sheep. mill wheels turned at various streams. near london in the country was a glass factory. at sunset, the gates of london were closed for the night. all taverns had to be closed, all lights put out, and all fires banked or covered when the bell of the church of st. martin le grand rang at 9:00 pm. anyone found on the streets after this curfew could be arrested. gangs of young nobles or gangs of thieves, cutpurses, and looters roamed the streets after dark and sometimes rioted. offenders were often beheaded and their heads placed on spikes on london bridge. men in london had begun weaving cloth, which formerly had been done by women. some of the cloth was exported. the weavers guild of london received a charter by the king in 1155, the first granted to any london craft: "know that i have conceded to the weavers of london to hold their guild in london with all the liberties and customs which they had in the time of king henry [i], my grandfather; and that none may intermeddle with the craft within the city, nor in southwark, nor in other places pertaining to london except through them and except he be in their guild, otherwise than was accustomed to be done in the time of king henry, my grandfather ...so that each year they render thence to me two marks [26s.8d.] of gold at the feast of st. michael. and i forbid that any shall do injury or contumely to them on this account under penalty of 10 pounds [200s.]. witness t[homas], chancellor, and warinus, son of gerard, chamberlain, at winchester." the liberties obtained were: 1) the weavers may elect bailiffs to supervise the work of the craft, to punish defaulters, and to collect the ferm [amount owed to the king]. the bailiffs were chosen from year to year and swore before the mayor of london to do and keep their office well and truly. 2) the bailiffs may hold court from week to week on pleas of debt, agreements, covenants [promises for certain performance], and minor trespasses. 3) if any of the guild members are sued in any other court on any of the above pleas, the guild may challenge that plea to bring it to the guild court. 4) if any member is behind in his share of the payment to the king, the bailiffs may distrain his loom until he has paid this. paying an annual payment freed the weavers from liability to inconsequent royal fines. failure to make this payment promptly might have led to loss of the right, hence the rigorous penalty of distraint upon the looms of individual weavers who fell into arrears. the weavers' guild punished members who used bad thread in their weaving or did defective weaving by showing the default to the mayor, with opportunity for the workman to make entreaty, and the mayor and twelve members of the guild then made a verdict of amercement of 1/2 mark [6s.8d.] and the workman of the cloth was also punished by the guild bailiffs according to guild custom. the weavers' guild tradition of brotherliness among members meant that injury to a fellow weaver incurred a severe penalty. if a weaver stole or eloigned [removed them to a distance where they were unreachable] any other weaver's goods falsely and maliciously, then he was dismissed from the guild and his loom was taken by the guild to fulfill his portion of the annual payment to the king. the weavers were allowed to buy and to sell in london freely and quietly. they had all the rights of other freemen of the city. thus from the middle of the 1100s, the weavers enjoyed the monopoly of their craft, rights of supervision which ensured a high standard of workmanship, power to punish infractions of their privileges, and full control of their members. in this they stand as the prototype of english medieval guilds. these rights represented the standard which all bodies of craftsmen desired to attain. the right of independent jurisdiction was exceptional. in henry ii's charter to london, london did not retain its right to appoint its own sheriff and justice given by henry i. london's chief magistrate was the mayor, who was appointed by the king, until 1191. then the mayor was elected yearly by the aldermen of the city wards and approved by the king. he was typically a rich prince chosen by the barons and chief merchants of london. the commoners had no voice in his selection, but they could still approve or disapprove of the actions of the city government at ward and folk motes. at certain periods, a king asserted royal power over the selection of mayor and governance of the city. there were three ways to become a citizen of london: being the son of a citizen, apprenticeship in a craft for seven years, and purchase of citizenship. london and westminster growth led to their replacing winchester as the capital. st. barthomew infirmary was established in london for the care of sick pilgrims traveling to the shrine of becket in canterbury. it had been inspired by a monk who saw a vision of st. barthomew telling him to build a church and an infirmary. trading was facilitated by the stabilization of the amount of silver metallic content of the english coinage, which was called "sterling" [strong] silver. the compass, a magnetic lodestone [leading stone] needle mounted on a cork and floated in a bowl of water, assisted the navigation of ships. with it, one could tell the general direction of a ship when the skies were cloudy as well as clear. and one could generally track one's route by using the direction and speed of travel to calculate one's new position. london became a major trading center for foreign goods from many lands. about 5% of the knights were literate. wealthy men sent their sons to school in monasteries to prepare them for a livelihood in a profession or in trade or to the town of oxford, whose individual scholars had migrated from paris and had attracted disciples for a long time. these schools grew up around st. mary's church, but had not been started by the church as there was no cathedral school in oxford. oxford had started as a burh and had a royal residence and many tradesmen. it was given its basic charter in 1155 by the king. this confirmed to it all the customs, laws and liberties [rights] as those enjoyed by london. it became a model charter for other towns. bachelors at oxford studied the arts of grammar, rhetoric, and logic, and then music, arithmetic, geometry, and astronomy, until they mastered their discipline and therefore were authorized to teach it. teaching would then provide an income sufficient to support a wife. the master of arts was analogous to the master craftsman of a guild. from 1190, the civil law was studied, and shortly thereafter, canon law. later came the study of medicine. the use of paper supplemented the use of parchment for writing. irregular edged paper was made from linen, cotton, straw, and/or wood beaten to a pulp and then spread out over a wire mesh to dry. theologicians taught that the universe was made for the sake and service of man, so man was placed at the center of the universe. man was made for the sake and service of god. every freeman holding land of a lord gave homage and fealty to him, swearing to bear him faith of the tenement held and to preserve his earthly honor in all things, saving the faith owed to the king. homage was done for lands, for free tenements, for services, and for rents precisely fixed in money or in kind. homage could be done to any free person, male or female, adult or minor, cleric or layman. a man could do several homages to different lords for different fees, but there had to be a chief homage to that lord of whom he held his chief tenement. homage was not due for dower, from the husband of a woman to whom a tenement was given as a marriage portion, for a fee given in free alms, or until the third heir, either for free mariatagium [a marriage portion which is given with a daughter in marriage, that is not bound to service] or for the fee of younger sisters holding of the eldest. all fiefs to be inherited by the eldest son had to be intact. every lord could exact fealty from his servants. in this era, the english national race and character was formed. only a few barons still had lands in normandy. stories of good king arthur were popular and set ideals for behavior and justice in an otherwise barbaric age where force was supreme. his last battle in which he lay wounded and told a kinsman to rule in his place and uphold his laws was written in poem ("layamon's brut"). romantic stories were written and read in english. the custom of "bundling" was started by ladies with their knights, who would lie together in bed without undressing and with one in a sack the top of which was tied around his neck, as part of a romantic courtship. wealthy men often gave their daughters dowries in case they were widowed. this might be matched by a marriage settlement by a prospective husband. intermarriage had destroyed any distinction of normans by look or speech alone, except for the anglo-saxon manor villeins, who worked the farm land and composed about two-thirds of the population. villeins were bound to the land and could, on flight, be brought back to it. they could not give homage, but could give fealty. a villein had the equipment to farm, fish, make cheese, keep poultry, brew beer, hedge, and cut wood. although the villeins could not buy their freedom or be freed by their lord, they became less numerous because of the preference of landholders for tenants motivated to perform work by potential loss of tenure. also, the crown's protection of all its subjects in criminal matters blurred the distinction between free and unfree men. the boroughs were dominated by lords of local manors, who usually had a house in the borough. similarly, burgesses usually had farmland outside the borough. many boroughs were granted, by the king or manor lord, the right to have a common seal for the common business of the town. some boroughs were given the authority to confer freedom on the villein by enrolling him in their guild or allowing him to stay in the borough for a year and a day. the guilds met frequently in their drinking halls and drew up regulations for the management of their trade. each borough was represented by twelve reputable burgesses. each vill was represented by a reeve and four reputable men. certain towns sponsored great seasonal fairs for special goods, such as cloth. about 5% of the population lived in towns. in the early 1180s, the horizontal-axle windmill was invented, probably in eastern england, on the analogy of the horizontal-axle watermill. it was very useful in flat areas where streams were too slow for a watermill unless a dam were built. but a dam often flooded agricultural land. london guilds of craftsmen such as weavers, fullers, bakers, loriners (makers of bits, spurs, and metal mountings of bridles and saddles), cordwainers (makers of leather goods such as shoes), pepperers, and goldsmiths were licensed by the king, for which they paid him a yearly fee. there were also five bridge guilds (probably raising money for the future construction of london bridge in stone) and st. lazarus' guild. the wealthy guilds, which included the goldsmiths, the pepperers, and three bridge guilds had landholding members who had been thegns or knights and now became a class of royal officials: the king's minters, his chamberlain, his takers of wines, his collectors of taxes. the weavers of oxford paid 27s.[two marks] to hav ea guild. the shoemakers paid 67s.[five marks]. in 1212, master carpenters, masons, and tilers made 3d. per day, their servers (the journeymen of a later time) made 11/2 d., freestone carvers 21/2 d., plasterers and daubers, diggers and sievers less. all received food in addition or 11/2 d. in its stead. sandwich was confirmed in its port rights by this charter: "henry ii to his sheriff and bailiffs of kent, greeting. i will and order that the monks of the holy trinity of canterbury shall have fully all those liberties and customs in sandwich which they had in the time of king henry my grandfather, as it was adjudged in pursuance of his command by the oath of twelve men of dover and twelve men of sandwich, to wit, that the aforesaid monks ought to have the port and the toll and all maritime customs in the same port, on either side of the water from eadburge-gate as far as markesfliete and a ferry-boat for passage. and no man has there any right except they and their ministers. wherefore i will and firmly command you and the men of sandwich that ye cause the aforesaid monks to have all their customs both in the port and in the town of sandwich, and i forbid any from vexing them on this account." "and they shall have my firm peace." henry gave this charter to the town of bristol in 1164: "know ye, that i have granted to my burgesses of bristol, that they shall be quit both of toll [a reasonable sum of money or portion of the thing sold, due to the owner of the fair or market on the sale of things tollable therein. it was claimed by the lord of the fee where the fair or market was held, by virtue of a grant from the crown either ostensible or presumed] and passage [money paid for crossing a river or for crossing the sea as might be due to the crown] and all custom [customary payments] throughout my whole land of england, normandy, and wales, wherever they shall come, they and their goods. wherefore i will and strictly command, that they shall have all their liberties and acquittances and free customs fully and honorable, as my free and faithful men, and that they shall be quit of toll and passage and of every other customs: and i forbid any one to disturb them on this account contrary to this my charter, on forfeiture of ten pounds [200s.]." john, when he was an earl and before he became king, granted these liberties to bristol about 1188: 1) no burgess may sue or be sued out of bristol. 2) the burgesses are excused from the murder fine (imposed by the king or lord from the hundred or town where the murder was committed when the murderer had not been apprehended). 3) no burgess may wage duel [trial by combat], unless sued for death of a stranger. 4) no one may take possession of a lodging house by assignment or by livery of the marshall of the earl of gloucester against the will of the burgesses (so that the town would not be responsible for the good behavior of a stranger lodging in the town without first accepting the possessor of the lodging house). 5) no one shall be condemned in a matter of money, unless according to the law of the hundred, that is, forfeiture of 40s. 6) the hundred court shall be held only once a week. 7) no one in any plea may argue his cause in miskenning. 8) they may lawfully have their lands and tenures and mortgages and debts throughout my whole land, [from] whoever owes them [anything]. 9) with regard to debts which have been lent in bristol, and mortgages there made, pleas shall be held in the town according to the custom of the town. 10) if any one in any other place in my land shall take toll of the men of bristol, if he does not restore it after he is required to, the prepositor of bristol may take from him a distress at bristol, and force him to restore it. 11) no stranger-tradesman may buy within the town from a man who is a stranger, leather, grain, or wool, but only from a burgess. 12) no stranger may have a shop, including one for selling wine, unless in a ship, nor shall sell cloth for cutting except at the fair. 13) no stranger may remain in the town with his goods for the purpose of selling his goods, but for forty days. 14) no burgess may be confined or distrained any where else within my land or power for any debt, unless he is a debtor or surety (to avoid a person owed a debt from distraining another person of the town of the debtor). 15) they shall be able to marry themselves, their sons, their daughters and their widows, without the license of their lords. (a lord had the right of preventing his tenants and their families from marrying without his consent.) 16) no one of their lords shall have the wardship or the disposal of their sons or daughters on account of their lands out of the town, but only the wardship of their tenements which belong to their own fee, until they become of age. 17) there shall be no recognition [acknowledgement that something done by another person in one's name had one's authority] in the town. 18) no one shall take tyne [wooden barrel with a certain quantity of ale, payable by the townsmen to the constable for the use of the castle] unless for the use of the lord earl, and that according to the custom of the town. 19) they may grind their grain wherever they may choose. 20) they may have their reasonable guilds, as well or better than they had them in the time of robert and his son william [john's wife's grandfather and father, who were earls of gloucester when the town and castle of bristol were part of the honor of gloucester]. 21) no burgess may be compelled to bail any man, unless he himself chooses it, although he may be dwelling on his land. we have also granted to them all their tenures, messuages [dwelling house with adjoining land and adjacent buildings], in copses [thicket from which wood was cut], in buildings on the water or elsewhere to be held in free burgage [tenant to pay only certain fixed services or payments to his lord, but not military service (like free socage)]. we have granted also that any of them may make improvements as much as he can in erecting buildings anywhere on the bank and elsewhere, as long as the borough and town are not damaged thereby. also, they shall have and possess all waste land and void grounds and places, to be built on at their pleasure. newcastle-on-tyne's taxes were simplified in 1175 as follows: "know ye that i have granted and by this present charter have confirmed to my burgesses of newcastle upon tyne, and to all their things which they can assure to be their own, acquittance from toll and passage and pontage and from the hanse and from all other customs throughout all my land. and i prohibit all persons from vexing or disturbing them therein upon forfeiture to me." we grant to our upright men on newcastle-on-tyne and their heirs our town of newcastle-on-tyne with all its appurtenances at fee farm for 100 pounds to be rendered yearly to us and our heirs at our exchequer by their own hand at the two terms, to wit, at easter 50 pounds and at michaelmas 50 pounds, saving to us our rents and prizes and assizes in the port of the same town. ranulph, earl of chester, made grants to his burgesses of coventry by this charter: "that the aforesaid burgesses and their heirs may well and honorably quietly and in free burgage hold of me and my heirs as ever in the time of my father and others of my ancestors they have held better more firmly and freer. in the second place i grant to them all the free and good laws which the burgesses of lincoln have better and freer. i prohibit and forbid my constables to draw them into the castle to plead for any cause, but they may freely have their portimoot [leet court] in which all pleas belonging to me and them may be justly treated of. moreover they may choose from themselves one to act for me whom i approve, who a justice under me and over them may know the laws and customs, and keep them to my counsel in all things reasonable, every excuse put away, and may faithfully perform to me my rights. if any one happen to fall into my amercement he may be reasonably fined by my bailiff and the faithful burgesses of the court. furthermore, whatever merchants they have brought with them for the improvement of the town, i command that they have peace, and that none do them injury or unjustly send them into court. but if any foreign merchant shall have done anything improper in the town that same may be regulated in the portimoot before the aforesaid justice without a suit at law." henry confirmed this charter of the earl's by 1189 as follows: i have confirmed all the liberties and free customs the earl of chester granted to them, namely, that the same burgesses may well and honorably hold in free burgage, as ever in the time of the father of the beforesaid earl, or other of his ancestors, they may have better or more firmly held; and they may have all the laws and customs which the citizens of lincoln have better and freer [e.g. their merchant guilds; all men brought to trade may be subject to the guild customs and assize of the town; those who lawfully hold land in the town for a year and a day without question and are able to prove that an accuser has been in the kingdom within the year without finding fault with them, from thence may hold the land well and in peace without pleading; those who have remained in the town a year and a day without question, and have submitted to the customs of the town and the citizens of the town are able to show through the laws and customs of the town that the accuser stood forth in the kingdom, and not a fault is found of them, then they may remain in peace in the town without question]; and that the constable of the aforesaid earl shall not bring them into the castle to plead in any case. but they may freely have their own portmanmoot in which all pleas appertaining to the earl and to them may be justly treated of. moreover they may choose one from themselves to act for the earl, whom i approve, who may be a justice under the earl and over them, and who to the earl may faithfully perform his rights, and if anyone happen to fall into the earl's forfeiture he shall be acquit for 12 pence. if by the testimony of his neighbors he cannot pay 12 pence coins, by their advice it shall be so settled as he is able to pay, and besides, with other acquittances, that the burgesses shall not provide anything in corrody [allowance in food] or otherwise whether for the said earl or his men, unless upon condition that their chattels shall be safe, and so rendered to them. furthermore, whatever merchants they have brought with them for the improvement of the town they may have peace, and none shall do them injury or unjustly send them into suit at law. but if any foreign merchant has done anything improper in the town that shall be amended [or tried] in the portmanmoot before the aforesaid justice without a suit. and they who may be newcomers into the town, from the day on which they began to build in the town for the space of two years shall be acquit of all charges. mercantile privileges were granted to the shoemakers in oxford thus: "know ye that i have granted and confirmed to the corvesars of oxford all the liberties and customs which they had in the time of king henry my grandfather, and that they have their guild, so that none carry on their trade in the town of oxford, except he be of that guild. i grant also that the cordwainers who afterwards may come into the town of oxford shall be of the same guild and shall have the same liberties and customs which the corvesars have and ought to have. for this grant and confirmation, however, the corvesars and cordwainers ought to pay me every year an ounce of gold." a guild merchant for wool dominated and regulated the wool trade in many boroughs. in leicester, only guildsmen were permitted to buy and sell wool wholesale to whom they pleased or to wash their fells in borough waters. certain properties, such as those near running water, essential to the manufacture of wool were maintained for the use of guild members. the waterwheel was a technological advance replacing human labor whereby the cloth was fulled. the waterwheel turned a shaft which lifted hammers to pound the wet cloth in a trough. wool packers and washers could work only for guild members. the guild fixed wages, for instance to wool wrappers and flock pullers. strangers who brought wool to the town for sale could sell only to guild members. a guildsman could not sell wool retail to strangers nor go into partnership with a man outside the guild. each guild member had to swear the guildsman's oath, pay an entrance fee, and subject himself to the judgment of the guild in the guild court, which could fine or suspend a man from practicing his trade for a year. the advantages of guild membership extended beyond profit in the wool trade. members were free from the tolls that strangers paid. they alone were free to sell certain goods retail. they had the right to share in any bargain made in the presence of a guildsman, whether the transaction took place in leicester or in a distant market. in the general interest, the guild forbade the use of false weights and measures and the production of shoddy goods. it maintained a wool-beam for weighing wool. it also forbade middlemen from profiting at the expense of the public. for instance, butchers' wives were forbidden from buying meat to sell again in the same market unless they cooked it. the moneys due to the king from the guilds of a town were collected by the town reeve. when the king wanted to raise an army, he summoned his major baron tenants-in-chief, who commanded their own armed dependent vassals, and he directed the sheriffs to command the minor tenants-in-chief and supply them with equipment. a baron could assemble an army in a day, but might use it to resist any perceived misgovernment by a king. armed conflict did not interfere much with daily life because the national wealth was still composed mostly of flocks and herds and simple buildings. machinery, furniture, and the stock of shops were still sparse. life would be back to normal within a week. henry wanted to check this power of the barons. so he took over or demolished their adulterine castles and restored the older obligation of every freeman to serve in defense of the realm, the fyrd, which was a military draft. at the king's call, barons were to appear in mail suit and helmet with sword and horse, knights and freeholders with 213s.[16 marks] of rent or chattels in coat of mail with shield and lance, freeholders of 133s.[10 marks] with lance and hauberk [coat of armor] and iron headpiece, burgesses and poorer freemen with lance and headpiece and wambais, and such as millers with pike and leather shirt. the spiritual and other baronies paid a commutation for personal service, called "scutage", at the rate of 27s. per knight's fee. barons and knights paid according to their knight's fee a scutage ranging from 10s. to 27s. as of 1181, the military obligations of villeins were defined. the master of a household was responsible for every villein in his household. others had to form groups of ten and swear obedience to the chief of the group. the sheriff was responsible for maintaining lists of men liable for military service and procuring supplies. this national militia could be used to maintain the peace. the sheriff could call upon the military array of the county as a posse comitatus to take a band of thieves into custody or to quell disorder. for foreign wars, henry decided to use a mercenary army and a mercenary fleet. however, the nobility who were on the borders of the realm had to maintain their private armies for frequent border clashes. the other nobility now tended towards tournaments with mock foot battles between two sides. although subject to knightly rules, serious injury and death often resulted. for this reason, the church opposed them, but unsuccessfully. new taxes replaced the danegeld tax. freeholders of land paid taxes according to their plowable land ("hidage", by the hide, and later "carucage", by the smaller norman carucate). the smaller measure curtailed estates and increased taxation. it was assessed from 2-5s. per carcuate [100 acres] and collected for the king by knights with little or no remuneration, and later by inquest of neighbors. the towns and demesne lands of the crown paid a tax based on their produce that was collected by the itinerant justices. merchants were taxed on their personal property, which was determined by an inquest of neighbors. clergy were also taxed. this new system of taxation increased the royal income about threefold. there was a standard for reliefs paid of 100s. [5 pounds] for a knight's fee and 2,000s. [100 pounds] for a barony. at the end of henry's reign, his treasure was over 900,000 pounds. every hide of land paid the sheriff 2s. annually for his services in the administration and defense of the county. this was probably the old danegeld. barons and their tenants and sub-tenants were offered an alternative of paying shield money ["scutage"] of 26s.8d. per fee in commutation for and instead of military service for their fiefs. this enabled henry to hire soldiers who would be more directly under his own control and to organize a more efficient army. henry ii restored the silver coinage to its standard of purity. the first great inflation in england occurred between 1180 and 1220. most goods and services increased threefold over these forty years. great households, whether of baron, prelate, monastery, or college gave their officers and servants allowances of provisions and clothing called "liveries". the officer of such departments as the buttery [cellar storing butts of wine], the kitchen, the napery [for linen cloth], and the chandlery had his fixed allowances for every day and his livery of clothing at fixed times of the year or intervals of years. the administration of a great estate is indicated by the pipe roll of the bishopric of winchester, 1208-1209, as follows: "downton: william fitzgilbert, and joselyn the reeve, and aylward the cellarer render account of 7 pounds 12s.11d. for arrears of the previous year. they paid and are quit. and of 3 pounds 2s.2d. for landgafol. and of 12d. by increment of tax for a park which william of witherington held for nothing. and of 2s.6d. by increment of tax for half a virgate of land which james oisel held without service. and of 19s. for 19 assize pleas in the new market. and of 10s. by increment of tax for 10 other assize pleas in the market this year. sum of the whole tax 36 pounds 14s.8d. in quittance of one reeve, 5s. in quittance for repairing the bridge, 5s.; of one forester, 4s.; of two haywards from downton and wick, 4s.; of one hayward from witherington, 20d.; of fourteen drivers from downton, wick, and nunton, for the year, 28s.; of two drivers from witherington for the year, 4s.4d.; of two drivers for half the year, 2s.; of one swineherd, of one neaterd, of one cowherd, for the year, 6s.; of three shepherds from wick, barford, and nunton, for the year, 6s.; of one shepherd from witherington, for the year, 20d.; of four customary tenants, for the year, 8s. sum of the quittances, 74s.8d. remainder 33 pounds. livery: for livery to john the dean, for christmas tax, 7 pounds 10s. by one tally. to the same for easter tax, 8 pounds by one tally. to the same for st. john's tax, 8 pounds by one tally. to the same for st. michael's tax, 8 pounds 10s. by one tally. to the same for corn [grain] sold in the field 26 pounds by two tallies. to the same for standing corn [growing crops of grain], purchases, and cheeses, 20 pounds 16s.10d. to the same for wool, 6 pounds 13s.4d. by one tally. to the same for tallage 39 pounds by one tally. sum: 134 pounds 10s.2d. expenses: for ironwork of 8 carts for year and one cart for half the year, 32s.10d. for shoeing of 2 plough-horses for the year, 2s.8d. for wheels for carts, 2s.9d. for 6 carts made over, 12d. before the arrival of the carpenter. for wages of the smith for the year, 8s.6d. for one cart bound in iron bought new, 5s.7d. for wheels purchased for one cart to haul dung, 12d. for leather harness and trappings, iron links, plates, halters, 14d. for purchase of 2 ropes, 3d. for purchase of 2 sacks, 8d. for purchase of 5 locks for the granary, 11d. for making 2 gates for the sheepfold, 2s. for one gate for the farm yard, 12d. for an axe and tallow purchased and for repairing the spindles of the mill for the year, 6s.10d. for one millstone purchased for the mill 24s. for making one gate near the mill, 12d. for meat prepared in the larder, 3s. for beer bought for cleaning carcasses, 2s.1d. for digging 158 perches of land around the pasture in the marsh, 32s.11d.; for each perch 2d.1ob. for the dovecote newly made, 22s.11d.1ob. for cutting 100 thick planks for flooring both dispensary and butlery, 6s.3d. for nails or pegs bought for planking beyond the cellar, 16d. for enclosing the garden by making 2 gates, 6s.7d.1ob. for digging in the gardens, 8s.5d. for the winter work of 55 carts, 9s.2d. for the lent work of 49 carts, 8s.6d. for spreading 6 acres with dung, 6d. for threshing 24 quarters of wheat at mardon for seed, 5s. for winnowing the same, 7d. for winnowing 36 quarters of grain for seed, 3s.9d. for threshing 192 quarters of grain 32s.; for each quarter 2d. for threshing 20 quarters of mixed corn [grain], 2s.6d. for threshing 42 quarters of barley, 3s.6d. for threshing 53 quarters of oats, 2s.2d.1ob. for hauling gravel to the bridge and causeway, 4d. for cost of dairy, viz., 3 tines of salt, cloth, and pots, 6s.10d. for purchase of 17 oxen, 5 pounds 13s. for hoeing 140 acres, 5s.10d. for wages of two carters, one neatherd, for the year, 9s. for wages of one carpenter for the year, 6s.8d. for wages of one dairy woman, 2s.6d. for payment of mowers of the meadow at nunton, 6d. for 8 sheep purchased, 8s. for wages of one neatherd from nunton, 12d. for carrying 2 casks of wine by walter locard, in the time of martinmas, 8s.2d. for the carrying of 2 casks of wine from southampton to downton by the seneschal, 3s.6d. at the feast of st. lawrence. for digging 22 perches in the farmyard, 6s.5d.; for each perch 3d.1ob. for allowance of food of robert of lurdon, who was sick for 21 days, with his man, 5s.3d. for allowance of food to sewal who was caring for 2 horses of the lord bishop for 3 weeks, 21d. for allowance of food for roger walselin, for the two times he made gifts to the lord king at clarendon, 4s.9d. by two tallies. for allowance of food of master robert basset, for 3 journeys, 9s.3d.1ob. for livery of william fitzgilbert, 60s.10d. for 30 ells of canvas purchased for laying over the wool, and 2 cushions prepared for the court, 5s. for 8 sheep purchased, with lambs, 8s. sum: 2 pounds.23d. sum of livery and expenses: 159 pounds 12s.1d. and there is owing: 5 pounds 9s.4d.1ob. produce of granary: the same render account of 221 and a half quarters and 1 strike from all the produce of grain; and of 24 quarters brought from mardon. sum: 245 and a half quarters and 1 strike. for sowing 351 acres, 127 quarters. for bread for the lord bishop, 18 and a half quarters delivered to john de dispensa by three tallies. for the balance sold, 110 quarters and 1 strike. the same render account of 38 and a half quarters from all the produce of small corn [grain]. for the balance sold, all. the same render account of 29 quarters and 1 strike from all the produce of mixed corn [grain]. for seeding 156 acres, 53 quarters and 1 strike. for bread for 3 autumnal works, 9 quarters. for the balance sold, 27 quarters. the same render account of 178 and a half quarters from all the produce of barley. for sowing 102 and a half acres, 49 and a half quarters. for payment for carts, 1 quarter. for payment for hauling dung, 2 quarters. for allowance of food of two carters, one carpenter, one neatherd, one dairy woman, for the year, 32 and a half quarters. for feeding hogs in the winter, 2 quarters. for the balance sold, 91 and a half quarters. it is quit. the same render account of 311 quarters and 2 bushels from all the produce of oats. in sowing 221 and a half acres, 110 and a half quarters. for prebends of the lord bishop and lord king, on many occasions, 131 and a half quarters and 2 bushels, by five tallies. for prebends of roger wakelin, 2 and a half quarters and 3 bushels. for prebends of master robert basset, 3 and a half quarters and 1 bushel. for provender of 2 horses of the lord bishop and 1 horse of richard marsh, for 5 weeks, 5 and a half quarters and 2 bushels. for provender of 2 horses of the lord bishop who stayed 16 nights at downton, 4 quarters. for that sent to knoyle, 18 quarters. for provender of 1 horse of robert of lurdon for 3 weeks, 1 and a half quarters. for prebends of two carters 7 quarters and 2 bushels. for the balance sold, 12 quarters. and there remains 14 quarters and 1 strike. the same render account of 6 and a half quarters from the whole produce of beans. for planting in the garden half a quarter. for the balance sold, 6 quarters. it is quit. the same render account of 4 quarters and 1 strike from all the produce of peas. for sowing 6 acres, 1 and a half quarters. for the balance sold 2 and a half quarters and 1 strike. it is quit. the same render account of 4 quarters from all the produce of vetches [pea plants used for animal fodder]. for feeding pigs in the winter, all. it is quit. beasts of burden: the same render account of 104 oxen remaining from the previous year. and of 2 yoked from useless animals. and of 1 from the will of robert copp. and of 17 purchased. sum: 124. of living ones sold, 12. of dead, 21. sum: 33. and there remain 91 oxen. the same render account of 2 goats remaining from the previous year. all remain. the same render account of 19 cows remaining from the previous year. and of 7 yoked from useless animals, and of 1 found. sum: 27. by death, 1. by killing, brought for the need of the lord bishop at cranbourne, 2. sum: 3. and there remain 24 cows. the same render account of 7 heifers and 2 steers remaining from the previous year. in yoked cows, 7 heifers. in yoked oxen, 2 bulls. sum: 9. the same render account of 12 yearlings remaining from the previous year. by death, 1. there remain 11, of which 5 are female, 6 male. the same render account of 13 calves born this year from cows, because the rest were sterile. in tithes, 1. there remain 12. the same render account of 858 sheep remaining from the previous year. and of 47 sheep for the payment of herbage, after birth, and before clipping. and of 8 bought before birth. and of 137 young ewes mixed with two-year-olds. sum: 1050. in live ones sold at the time of martinmas, 46. in those dead before birth, 20. in those dead after birth and before shearing, 12. sum: 78. and there remain 972 sheep. the same render account of 584 wethers [castrated rams] remaining from the previous year. and of 163 wethers mixed with two-yearolds. and of 16 rams from lindsey, which came by brother walter before shearing. sum: 763. in living ones sold at the time of martinmas, 27 wethers, 10 rams. paid to the men of bishopton before shearing by writ of the seneschal, 20. by death, before shearing, 14. sum: 71. and there remain 692 sheep. the same render account of 322 old sheep remaining, with lambs from the previous year. by death before shearing, 22. and there remain 300; whence 137 are young ewes, mixed with sheep, and 163 males, mixed with wethers. the same render account of 750 lambs born from sheep this year because 20 were sterile, and 30 aborted. in payment of the smith, 2; of shepherds, 3. in tithes, 73. in those dead before shearing, 105. sum: 181. and there remain 569 lambs. the same render account of 1664 large sheep-skins whence 16 were from the rams of lindsey. in tithes, 164. in payment of three shepherds, 3. in the balance sold 1497 skins with 16 skins from lindsey which made 11 pondera. the same render account of 569 lamb skins. in the balance sold, all, which made 1 and a half pondera. the same render account of 138 cheeses from arrears of the previous year. and of 19 small cheeses. and of 5 larger ones from the arrears of the previous year. and of 273 cheeses which were begun the 6th of april and finished on the feast of st. michael, both days being counted. and they made cheeses two by two for 96 days, viz. from the 27th april to the vigil of the feast of st. peter in chains, both days being counted. sum: 435 cheeses. in tithes 27. in payment of a shepherd, and mowers of the meadow from nunton, 2. in duty of a carter, 3. in autumnal work, 10. in expenses of the bishop in the kitchen, 2 by one tally. in the balance sold, 133 cheeses, which made 10 heads, from arrears of the previous year. in the balance sold, 177 cheeses, which made 18 heads in this year. in expenses of the lord king and lord bishop on the feasts of st. leonard and st. martin, 19 small cheeses, and 5 larger ones from the arrears of the previous year. and there remain 52 small cheeses which make one head. the same render account of 124 hogs remaining from the previous year. and of 29 that were born of sows. sum: 153 pigs. in tithes, 2. by death, 9. in those killed for the larder, 83. sum: 95 pigs. and there remain 58 pigs. also 19 suckling pigs. sum of the whole: 77 pigs. the same render account of 48 chickens from arrears of the previous year. and of 258 chickens for cheriset. sum: 306. in expenses of the lord bishop on the feast of st. martin, 36 by one tally. in expenses of the same on the feast of st. leonard, 106, by one tally. in expenses of the lord king and bishop on the feast of the apostles peter and paul, 131 chickens, by two tallies. in allowance for food for roger wakelin, 8. in allowance of food for master robert basset, 4. by death, 21. sum: 306 chickens. it is quit. the same render account of 273 chickens, 27 sticae of eels, 4 suckling pigs, freed for the expenses of the lord king and bishop. from the larder: the same freed for the expenses of the lord bishop meat of 2 cows taken to cranbourne. the same render account of 13 sides of bacon, arrears of the previous year. and of 5 oxen and 1 quarter of old beef from arrears of the previous year. and of 84 hogs from downton. and of 71 hogs from mardon. and of 10 hogs from overton. and of 9 hogs from high-clere. and of 14 hogs from harwell. and of 7 hogs from knoyle. sum: 203 hogs, and meat of 5 oxen and one quarter. in expenses of the lord bishop at the feast of st. martin, 8 sides of bacon. in expenses of the same at the feast of st. leonard, 17 sides of bacon, the meat of 5 oxen, and 1 quarter of an ox. in expenses of the same on the morrow of the feast of the holy cross, delivered to nicolas the cook, 27 sides of bacon. in expenses of the lord bishop delivered to the same cook at knoyle on the saturday before the feast of st. michael, 15 sides of bacon. in expenses of the same and of the lord king on the feast of the apostles peter and paul, 50 sides of bacon. in allowance of food to master robert basset on the feast of all saints, half a side of bacon. in allowance of food to the same on wednesday and thursday before pentecost, 1 side of bacon. in those sent to knoyle for autumnal work, 6 sides of bacon. in three autumnal festivals at downton, 9 and a half sides of bacon. sum: 134 sides of bacon. and there remain 74 sides of bacon. the same render account of skins, sausages, and offal of the said hogs. in expenses of the lord king and lord bishop at the feast of st. leonard, all. nothing remains." king richard the lion-hearted, unlike his father, was interested in warfare. he spent most of his term on crusade to recover jerusalem. for his expenses, he imposed a tax of one-tenth of rents and income from moveable goods. he also sold town charters, heiresses and heirs, widows, sheriffdoms, justiceships, earldoms, and licenses for tournaments. the crusades' contact with arabs brought to england arabic numerals, which greatly facilitated arithmetic, arab horses, and an expansion of trade. the church decreed that those who went on these crusades would be remitted of his sins. at the end of this period was the reign of king john, a short man. after his mother eleanor's death in 1204, john ruled without her influence. he had no conscience and his oaths were no good. he trusted and was trusted by no one. he had a huge appetite for money. he imposed 2,000 pounds [3,000 marks] on london for confirmation of its charter. he imposed levies on the capital value of all personal and moveable goods. it began the occasional subsidies called "tenths and fifteenths" from all people on incomes from movables: one-tenth from boroughs and royal demesne land, and one-fifteenth elsewhere. he sold the wardships of minors and the marriages of heiresses to the highest bidder, no matter how base. he appointed unprincipled men to be both sheriff and justice, enabling them to blackmail property holders with vexatious writs and false accusations. writs were withheld or sold at exorbitant prices. crushing penalties were imposed to increase the profits of justice. he asserted over fowls of the air the same exclusive right as over beasts of the forest. the story of robin hood portrays john's attempt to gain the crown prematurely while richard was on the crusades to recover jerusalem for christendom. (in 1198, the bishop barons had refused to pay for a campaign of richard's war in normandy arguing that military service was only due within the kingdom of england. when richard was captured, every person in the realm was required to pay a part of his ransom of 100,000 pounds, which was double the whole revenue of the crown. aids, tallages, and carucage were imposed. the heaviest impost was one-fourth of revenue or of goods from every person.) in 1213, strong northern barons refused a royal demand for service in france or scutage, arguing that the amount was not within custom or otherwise justified. john had private and public enemies. no one trusted him and he trusted no one. his heavyhanded and arbitrary rule quickly alienated all sectors of the population: other barons, bishops, london, and the commons. they joined the barons to pressure him to sign the magna carta correcting his abuses. for instance, since john had extracted many heavy fines from barons by personally adjudging them blameworthy in disputes with others, the barons wanted judgment by their peers under the established law of the courts. in arms, the barons forced john to sign the magna carta correcting his abuses. the law no one, including the lord of a manor, may take land from anyone else, for instance, by the customary process of distress, without a judgment from the royal court. this did not apply to london, where a landlord leasing or renting land could take distress in his fee. no one, including the lord of a manor, shall deprive an heir of the land possessed by his father, i.e. his birthright. a tenant may marry off a daughter unless his lord shows some just cause for refusing to consent to the marriage. a tenant had to pay an "aid" to his lord when the lord's daughter married, when the lord's son was knighted, or when the lord's person was ransomed. a man [or woman] may not will away his land, but he may sell it during his lifetime. the land of a knight or other tenant of a military fee is inherited by his eldest son. the socage land of a free sokeman goes by its ancient custom before the norman conquest. if a man purchased land after his marriage, his wife's dower is still one-third of the land he had when they married, or less if he had endowed her with less. but he could then enlarge her dower to one-third of all of his lands. the same rule applied if the man had no land, but endowed his wife with chattel or money instead. dower law prevented a woman from selling her dower during the life of her husband. but he could sell it or give it away. on his death, its possessor had to give the widow the equivalent worth of the property. a widower had all his wife's lands by curtesy of the nation for his lifetime to the exclusion of her heirs. the capital messuage [chief manor] could not be given in dower or divided, but went in its entirety to its heir. heirs were firstly sons, then daughters, then grandsons per stirpes, then granddaughters per stirpes, then brothers, and then sisters of the decedent. [by taking "per stirpes" instead of "per capita", a person's share goes to that person's heirs if that person predeceases the ancestor-decedent.] male heirs of land held by military service or sons of knights who were under the age of twenty-one were considered to be in custody of their lords. the lord had wardship over the heir's land, excluding the third that was the widow's dower for her life. he had to maintain the heir in a manner suitable to his dignity and restore to him when he came of age his inheritance in good condition discharged from debts. male heirs of sokemen who were under the age of fifteen were in the custody of their nearest kindred. the son of a burgess came of age when he could count money, measure cloth, and manage his father's concerns. female heirs remained in the custody of their lords until they married. the lord was bound to find a marriage for his ward when she became fourteen years of age and then deliver her inheritance to her. she could not marry without her lord's consent, because her husband was expected to be the lord's ally and to do homage to him. but if a female heir lost her virginity, her inheritance escheated to her lord. a woman with property could not do homage because she could not perform military service, but she generally swore fealty. she could receive homage from men. bastards were not heirs, even if their father married their mother after birth. any adult inheriting land had to pay a "relief" to the lord of the land. for a knight's fee, this was 100s. for socage land, this was one year's value. the amount for a barony depended upon the king's pleasure. heirs (but not widows) were bound to pay the debts of their fathers and ancestors. a man who married a woman who had inherited land could not sell this land without the consent of its heirs. when a man dies, his wife shall take one-third and his heirs shall take one-third of his chattels [movables or personal property]. the other third he may dispose of by will. if he had no heirs and no will [intestate], all his chattels would escheat to his lord. any distribution of chattels would take place after all the decedent's debts were paid from the property. a will required two witnesses. the testator could name an executor, but if he did not, the next of kin was the executor. a will could not be made by a man on his death bed because he may well have lost his memory and reason. also, he could not give to a younger son if in so doing, he would deprive his lawful heir. but he could give a marriage gift to a daughter regardless of the lawful heir. usury was receiving back more than what was lent, such as interest on a loan of money. when a usurer died, all his movables went to the king. a villein may not buy his own freedom (because all that he has is his lord's), but may be set free by his lord or by someone else who buys his freedom for him. he shall also be freed if the lord seduced his wife, drew his blood, or refused to bail him either in a civil or criminal action in which he was afterwards cleared. but a freed villein did not have status to plead in court, even if he had been knighted. if his free status were tried in court, only a freeman who was a witness to his being set free could avail himself of trial by combat to decide the issue. however, if the villein remained peacefully in a privileged town a year and a day and was received into its guild as a citizen, then he was freed from villeinage in every way. a freeman who married a villein lost his freedom. if any parent of a child was a villein, then the child was also a villein. all shipwrecked persons shall be treated with kindness and none of their goods or merchandise shall be taken from them. if one kills another on a vessel, he shall be fastened to the dead body and thrown with it into the sea. if one steals from another on a vessel, he shall be shaven, tarred and feathered, and turned ashore at the first land. passage on the thames river may not be obstructed by damming up the river on each side leaving a narrow outlet to net fish. all such weirs shall be removed. judicial procedure henry ii wanted all freemen to be equally protected by one system of law and government. so he opened his court, the royal court, to all people of free tenure. a court of five justices professionally expert in the law, traveled with the king, and on points of difficulty consulted with him. justices began to be more than presiding officers; they, instead of those attending, rendered the judgments. the chief court was in westminster, where the weightiest decisions were made. other professional itinerant justices appeared periodically in all counties of the nation to hear certain criminal and civil cases and to hear citizens' private civil suits [common pleas]. they came to perform many other tasks, including promulgating and enforcing new legislation, seeking out encroachments on royal rights, reviewing the local communities' and officials' performance of their public duties, imposing penalties for failure to do them or for corruption, gathering information about outlaws and non-performance of homage, and assessing feudal escheats to the crown, wardships to which the king was entitled, royal advowsons, feudal aids owed to the king, tallages of the burgesses, and debts owed to the jews. the decision-making of itinerant justices on circuits begins the process which makes the custom of the royal court the common law of the nation. the county courts, where the travelling justices heard all manner of business in the counties, adopted the doctrines of the royal court, which then acquired an appellate jurisdiction. the itinerant justices came from the same small group of royal justices who were on the royal court and the exchequer, which was headed by the justiciar. difficult cases were decided by the king and wise men of his council. tenants of manors and of escheats in royal hands, who had been excused from the monthly county court, were required to appear. side by side with the reeve and four men of the rural townships appeared the twelve legal men of each of the chartered boroughs which owed no suit to the ordinary county court. in the formation of the jury of presentment for criminal cases, each hundred sent twelve legal men and each township four to make report to the justices. women did not serve on juries. compurgation was not used; accused persons were sent directly to the ordeal. in 1194, twelve knights or legal men from each hundred answer before any itinerant justice for their hundred in all criminal, civil, and fiscal cases. all who are bound to attend before the itinerant justices are, in the forest counties, compelled to attend the forest courts. the royal court was chiefly concerned with 1) the due regulation and supervision of the conduct of local government, 2) the ownership and possession of land held by free tenure ("free tenement" was decided by justices to be one held for life or one held heritably [a fee]), 3) the repression of serious crime, and 4) the relations between the lay and the ecclesiastical courts. the doctrine of tenure applied universally to the land law formed the basis for judicial procedure in determining land rights. those who held lands "in fee" from the king in turn subinfeudated their land to men of lesser rank. the concept of tenure covered the earl, the knight (knight's service), the church (frank-almoin [free alms]), the tenant who performed labor services, and the tenant who paid a rent (socage). other tenures were: serjeanty [providing an implement of war or performing a nonmilitary office] and burgage. all hold the land of some lord and ultimately of the king. henry was determined to protect lawful seisin of land and issued assizes giving the royal court authority to decide land law issues which had not been given justice in the county or lord's court. but he did not ordain that all litigation respecting free tenements, e.g. right of seisin, should take place in the king's court. rather he gave protection to mere possession of land, which could be justified because possession was intimately associated with the maintenance of the king's peace. these assizes included issues of novel disseisin [recent ejectment] of a person's free tenement or of his common of pasture which belonged to his freehold. though the petty assize of disseisin only provided a swift preliminary action to protect possession pending the lengthy and involved grand assize on the issue of which party had the more just claim or ultimate right of seisin, the latter action was only infrequently invoked. the temptation of a strong man to seize a neighbor's land to reap its profits for a long time until the neighbor could prove and enforce his right was deterred. any such claim of recent dispossession [novel disseisin] had to be made within three years of the disseisin. an example of a writ of novel disseisin is: the king to the sheriff, greeting. n has complained to me that r unjustly and without a judgment has disseised him of his free tenement in [houndsditch] since my last voyage to normandy. therefore i command you that, if n gives you security for prosecuting his claim, you are to see that the chattels which were taken from the tenement are restored to it, and that the tenement and the chattels remain in peace until sunday after easter. and meanwhile you are to see that the tenement is viewed by twelve free and lawfulmen of the neighborhood, and their names endorsed on this writ. and summon them by good summoners to be before me or my justices on the sunday after easter, ready to make the recognition. and summon r. or his bailiff if he himself cannot be found, on the security of gage and reliable securities to be there then to hear the recognition. and have there the summoners, and this writ and the names of the sureties. witness etc. then an assize panel of recognition summoned concurrently with the defendant and before he had pleaded, viewed the land in question and answered, from their knowledge, these questions of fact: 1) was the plaintiff disseised of the freehold in question, unjustly and without judgment? 2) did the defendant commit the disseisin? testimony of a warrantor (or an attorney sent by him in his place) or a charter of warranty served to prove seisin by gift, sale, or exchange. no pleadings were necessary and the action could proceed and judgment given even without the presence of the defendant. the justices amerced the losing party with a monetary penalty. a successful plaintiff might be awarded damages to compensate for the loss of revenue. there was also a writ for issues of inheritance of land called "mort d'ancestor". by law the tenure of a person who died seised of a tenure in a lord's demesne which was hereditary [seisin of fee] returned to the lord, who had to give it to the heir of the decedent. if the lord refused and kept it for himself or gave it to someone else, the heir could sue in the royal court, which used an similar assize panel of twelve men to decide whether the ancestor was seised as of fee in his demesne, if the plaintiff was the nearest heir, and whether the ancestor had died, gone on a crusade but not returned, or had become a monk. then it could give possession to the heir. since about 1150, heiresses divided the land of their father if there was no son. the widow, of course, retained her dower rights. as of 1176, the widow held her dower from the heir instead of from the husband's lord. if the heir was a minor, the guardian lord would be in actual control of the land. a national policy was implemented that in the case of the death of a freeholder, the rights of the family, his will, and his debts were to be provided for before relief was paid to his lord. eventually royal justices acquired authority to decide the ultimate question of right to land using the grand assize as an alternative to the traditional procedures which ended in trial by combat. issues of the ultimate right of seisin were brought to the royal court by a contestant in a local court who "put himself [or herself] upon the king's grand assize". the assize consisted of twelve knights from the county or neighborhood who were elected by four knights of the same county or neighborhood (selected by the sheriff or the suitors) and who were known as truthful men and were likely to possess knowledge of the facts, either from personal seeing or hearing, or from statements which their fathers had made to them from their personal knowledge. the avenue by which a person who felt he had not had justice in the manor court on his claim for certain freehold land appealed to the king was by writ of right after the manor court's decision or by a writ praecipe during the manor court's proceeding. an example of a writ praecipe is: "the king to the sheriff greeting. command [praecipe] n. to render to r. justly and without delay one hide of land in a certain vill, which the said r. complains that the aforesaid n. is withholding from him. if he does not do so, summon him by good summoners to be before me or my justices on the day after the octaves of easter, to show why he has not done so. and have the summoners and this writ. witness." when the parties appeared in court, the claimant states his suit such as: "i claim against this n. the fee of half a knight and two carucates of land in a certain vill as my right and my inheritance, of which my father (or grandfather) was seized in his demesne as of fee in the time of king henry the first, and from which he took the profits to the value of five shillings at least, in grain and hay and other profits; and this i am ready to prove by this freeman of mine, h., and if any evil befalls him them by this other man or by this third man, who saw and heard it". then the defendant chose to deny the claim word for word with proof by combat or to put himself upon the grand assize of the king. if he chose trial by combat, the parties or their champions fought. the party losing, usually by crying craven, had to pay a fine of 60s. if the grand assize was chosen, the action was removed to the royal court. a writ of grand assize was issued as follows: "the king to the sheriff, greeting. summon by good summoners the following twelve, namely, a. b. ..., to be before me or my justices at a certain place on a certain day, ready to declare on oath whether n. or r. has the greater right in one hide of land (or other things claimed) which the aforesaid r. claims against the aforesaid n., who is tenant, and in respect of which the aforesaid n., who is tenant, has put himself upon my assize and has sought a recogniton to determine which of them has the greater right in the things claimed. and meanwhile the twelve shall view the land (or tenements from which the services are demanded). and summon by good summoners n., who is tenant, to be there to hear the recogniton. witness..." the claimant could object to any of the twelve knights for just cause as determined by the court. each of the twelve gave an oath as to whether the plaintiff's or the defendant's position was correct. this oath was not to speak falsehood nor conceal truth according to knowledge gained by eye-witness or "by the words of their fathers and by such words as they are bound to have such confidence in as if they were their own". if any did not know the truth of the matter, others were found until twelve agreed [the recognitors] on which party had the greater right. perjury was punished by forfeiture of all one's goods and chattels to the king and at least one year's imprisonment. if the tenant in court vouched another to warranty, such as the lord to whom he paid homage, that warrantor would stand in his place in the proceedings. if the warrantor lost, he would have to give to his vassal equivalent land in exchange. burgage tenure was not usually decided by assize. also, if the parties were relatives, neither the assize nor the combat was available to them, but the matter had to be decided by the law of inheritance. itinerant justices could conduct these assizes: petty and grand. in 1198, the hundred is empowered to act on all the business of the session, including all recognitions and petty assizes ordered by the king's writ, where the property in dispute was worth no more than 200s. [ten pounds] a year. the four knights came to be selected by the suitors of the county court rather than by the sheriff. this assize procedure extended in time to all other types of civil actions. also removable to the royal court from the county courts were issues of a lord's claim to a person as his villein (combat not available), service or relief due to a lord, dower rights, a creditor's refusal to restore a gage [something given as security] to a debtor who offered payment or a deposit, money due to a lender, a seller, or a person to whom one had an obligation under a charter, fish or harvest or cattle taken from lands unjustly occupied, cattle taken from pasture, rights to enjoy a common, to stop troubling someone's transport, to make restitution of land wrongfully occupied, to make a lord's bailiff account to him for the profits of the manor. the royal court also decided disputes regarding baronies, nuisance or encroachments on royal land or public ways or public waterways, such as diverting waters from their right course and issues of nuisance by the making or destroying of a ditch or the destruction of a pond by a mill to the injury of a person's freehold. other pleas of the crown were: insult to the royal dignity, treason, breaches of safe-conducts, and injury to the king's servants. henry involved the royal court in many criminal issues, using the agencies of the county and hundred courts. to detect crimes, he required royal justices to routinely ask selected representatives: knights or other landholders, of every neighborhood if any person were suspected of any murder, robbery, theft, etc. a traveling royal justice or a sheriff would then hold an inquest, in which the representatives answered by oath what people were reputed to have done certain crimes. they made such inquiries through assizes of presentment, usually composed of twelve men from each hundred and the four best men of each township. (these later evolved into grand juries). these assizes were an ancient institution in many parts of the country. they consisted of representatives of the hundreds, usually knights, and villages who testified under oath to all crimes committed in their neighborhood, and indicted those they suspected as responsible and those harboring them. what henry's assize did was to insist upon the adoption of a standard procedure everywhere systematically. the procedure was made more regular instead of depending on crime waves. if indicted, the suspected persons were then sent to the ordeal. there was no trial by compurgation in the royal courts, which was abolished by henry. if determined guilty, he forfeited his chattels to the king and his land reverted to his landlord. if he passed the ordeal but was ill-famed in the community, he could be banished from the community. the ordeal was abolished by the lateran council of 1215. as before, a person could also be brought to trial by the accusation of the person wronged. if the accused still denied the charge after the accuser testified and the matter investigated by inquiries and interrogation and then analyzed, trial by combat was held, unless the accuser was over the age of sixty or maimed, in which case the accused went to the ordeal. if a man failed at the ordeal, the penalty prescribed by the assize of clarendon of 1166 was loss of a foot and abjuring the realm. the assize of northhampton of 1176 added loss of the right hand. under the former assize, a man who had a bad reputation had to abjure the realm even if he had successfully undergone the ordeal. criminal matters such as killing the king or sedition or betraying the nation or the army, fraudulent concealment of treasure trove [finding a hoard of coins which had been buried when danger approached], breach of the king's peace, homicide, murder (homicide for which there were no eye-witnesses), burning (a town, house, men, animals or other chattel for hatred or revenge), robbery, rape and falsifying (e.g. false charters or false measures or false money) were punishable by death or loss of limb. all murders were now punished alike because the applicability of the murdrum couldn't be determined since it was impossible to prove that the slain man had been english. trespass was a serious and forcible breach of the peace onto land that developed from the criminal law of felony. one found guilty of it could be fined and imprisoned as well as amerced. house-breaking, harboring outlaws, and interference with the royal perquisites of shipwreck and the beasts of the sea which were stranded on the coast [such as whales and sturgeon] were also punishable in the royal court. the royal court had grown substantially and was not always presided over by the king. to avoid court agents from having too much discretionary power, there was a systematic procedure for bringing cases to the royal court. first, a plaintiff had to apply to the king's chancery for a standardized writ into which the cause had to fit. the plaintiff had to pay a fee and provide a surety that the plea was brought in good faith. the progress of the suit was controlled at crucial points by precisely formulated writs to the sheriff, instructing him for instance, to put the disputed property under royal protection pending a decision, to impanel an assize and have it view the property in advance of the justices' arrival, to ascertain a point of fact material to the plea, or to summon a 'warrantor' to support a claim by the defendant. the royal court kept a record on its cases on parchment kept rolled up: its "rolls". the oldest roll of 1194 is almost completely comprised of land cases. anyone could appoint an agent, an "attorney", to appear in court on his behalf, it being assumed that the principal could not be present and royal authorization given. a wife could represent her husband. the principal was then bound by the actions of his agent. gradually men appeared who made a business of representing whoever would employ them. the common law system became committed to the "adversary system" with the parties struggling judicially against each other. the royal court took jurisdiction over issues of whether certain land was civil or ecclesiastical [assize utrum], and therefore whether the land owed services or payment to the crown or not. it also heard issues of disturbance of advowson, a complex of rights to income from a church and to the selection of a parson for the church [assize of darrein [last] presentment]. many churches had been built by a lord on his manor for his villeins. the lord had then appointed a parson and provided for his upkeep out of the income of the church. in later times, the lord's chosen parson was formally appointed by the bishop. by the 1100s, many lords had given their advowsons to abbeys. this procedure used twelve recognitors selected by the sheriff. as before, the land of any person who had been outlawed or convicted of a felony escheated to his lord. his moveable goods and chattels became the king's. if he was executed, his heirs received nothing because they were of the same blood as the felon, which was corrupt: "corruption of the blood". the loss of civil rights and capacities after a sentence of death for felony or treason, which resulted in forfeiture of property and corruption of the blood, was called "attainder". the manor court heard cases arising out of the unfree tenures of the lord's vassals. it also heard distraint, also called "distress", issues. distraint was a landlord's method of forcing a tenant to perform the services of his fief. to distrain by the fief, a lord first obtained a judgment of his court. otherwise, he distrained only by goods and chattels without judgment of his court. a distraint was merely a security to secure a person's services, if he agreed he owed them, or his attendance in court, if he did not agree that he owed them. law and custom restricted the type of goods and chattels distrainable, and the time and manner of distraint. for instance, neither clothes, household utensils, nor a riding horse was distrainable. the lord could not use the chattels taken while they were in his custody. if cattle in custody were not accessible to the tenant, the lord had to feed them at his expense. the lord, if he were not the king, could not sell the chattel. this court also determined inheritance and dower issues. the court of the vill enforced the village ordinances. the hundred court met twice a month and dealt with the petty crimes of lowly men in the neighborhood of a few vills. the county and borough courts heard cases of felonies, accusations against freemen, tort, and debts. the knights make the county courts work as legal and administrative agencies of the crown. the peace of the sheriff still exists for his county. the king's peace may still be specially given, but it will cease upon the death of the king. law required every good and lawful man to be bound to follow the hue and cry when it was raised against an offender who was fleeing. the village reeve was expected to lead the chase to the boundary of the next jurisdiction, which would then take the responsibility to catch the man. admiralty issues (since no assize could be summoned on the high seas), and tenement issues of land held in frankalmoin ["free alms" for the poor to relieve the king of this burden], where the tenant was a cleric were heard in the ecclesiastical courts. before henry's reign, the church, with the pope's backing, had become more powerful and asserted more authority. henry tried to return to the concept of the king being appointed by god and as the head of the church as well as of the state, as in henry i's time, and to include the church in his reform of the legal system, which would make the spiritual jurisdiction and temporal jurisdiction conform to a common justice. toward this end, he published the constitutions of clarendon. but the archbishop of canterbury, thomas becket, refused to agree to them, although as chancellor he had seen the beneficial effects on the kingdom of henry's legal measures. the disagreement came to a head in henry's attempt to establish the principle of "one law to all" by having church clerics punished by the civil courts as before, instead of having "benefit of clergy" to be tried and punished only in ecclesiastical courts, even for secular crimes. clerics composed about one-sixth the population. the church courts had characteristically punished with spiritual penalties of a fine or a penance, and at most defrocking. it could not impose a death penalty, even for murder. when archbishop becket was murdered and became a martyr, "benefit of clergy" became a standard right, except for offenses in the king's forests. appeals could be made to the pope without the king's permission. the king could take a criminal cleric's chattels, but not his life. however, though theoretically bishops were elected by the body of bishops with the approval of the king, as a practical matter, the king chose the bishops and the abbots. it was a constant matter of dispute, in which the pope would sometimes involve himself. selection of archbishops was also a frequent matter of contention between king and pope. the church copied the assize procedure developed by the royal court to detect ecclesiastical offenses. trial was still by compurgation. bishops could request the chancery to imprison an offender who had remained excommunicant for forty days, until he made amends. chancery complied as a matter of course. this went on for six centuries. the delineations of jurisdiction among these courts were confused and there was much competing and overlapping of jurisdictions. however, the court could appoint arbitrators or suggest to the parties to compromise to avoid the harshness of a decisive judgment which might drive the losing party to violent self-help. the office of coroner was established about 1194 to supplement the judicial investigations of crimes with local officers prior to the arrival of the itinerant justices. four knights who were residents of the county and possessed sufficient land were elected by the county court for life. sometimes they had county and royal connections instead. they received no pay. they determined if sudden deaths were accidental or due to murder and the cause of death of prisoners. they also held inquests on other crime such as bodily injury, rape, and prison break. they attached [arrested] the accused and evaluated and guarded his chattels until after the trial. if the accused was found guilty, his possessions went to the king. the coroner sat with the sheriff at every county court and went with him on his turns. this office and the forbidding of sheriffs to act as justices in their own counties reduced the power of the sheriffs. the responsibility of receiving the oath of the peace is changed from the sheriff to knights, the duty of the sheriffs being only to receive and keep the criminals taken by these knights until the justices came to try them. also, at this time, the constitution of the grand jury of the county was defined. first, four knights were to be chosen in the county court. these were to select on oath two knights from each hundred. these two, also on oath, are to add by co-optation ten more for the jury of the hundred. in london, if one of two witnesses for the defence died while an action was pending, the survivor, after offering his oath, could proceed to the grave of the dead witness, and there offer oath as to what the dead man would have sworn if he had been alive. if a foreigner was bound to make oath for debt or any misdeed, he could make it with six others, his own oath being the seventh; but if could not find six supporters, he alone could make the oath and take it in the six nearest churches. in london, the method of capital punishment was being confined to hanging, instead of also being in the form of beheading, burning, drowning, stoning, or hurling from a rock. in cases of drowning, the offender was first sewn up in a sack with a snake, a dog, an ape, and a cock. chief justiciar ranulph glanvill wrote a treatise on the writs which could be brought in the royal court and the way they could be used. it was a practical manual of procedure and of the law administered in the royal court. there are personal actions such as "debt" for specific chattel or specific sum of money. this splits into two actions. the detinue award is for the specific chattel or its value. the action of "replevin" is available to the tenant to recover personal property which had been wrongly distrained, usually cattle; the goods are "repledged" pending action. also, but rarely used, are "covenant" to protect termors for leases of land for terms of years, and "trepass": a semi-criminal action brought by a private party for an offense punishable by death (or in the 1100s by mutilation) such as murder, rape, robbery, or mayhem, that is done with force of arms and against the peace of the king. the use of trespass grew as private actions for felony were supplanted by public indictment. it occasioned outlawry in default of appearance. these personal actions were initiated in common law courts by their respective writs. these are some of the cases of novel disseisin brought to the king's court: woodbridge v. bardolf (1194, king's court): ralf of woodbridge seeks before the justices his free tenement in hebston by the assize of novel disseisin against hugh bardolf. against which assize hugh said that he had that seisin by judgment of his court for the default of the same ralf. and the court has recorded the summons and distraints reasonably made on the same ralf. and ralf himself has acknowledged the summons and distraints and said that he ought not hold anything from him in that land; rather, it is of another's fee. and because neither he nor anyone for him has complained to the justices that hugh unjustly drew him into a plea concerning a tenement which ralf himself held of the fee of another lord, it is considered that hugh hold in peace. and let ralf plead by writ of right if he want and be in mercy for his false claim. turroc v. fitz walter (1194, king's court): the assize came to recognize if clement son of walter unjustly and without judgment disseised matilda of turroc of her free tenement within the assize. clement comes and says that he disseised her by judgment of his court. the court is present and records that she occupied more of her lord's land than she had in dower by the sheriff and by order of the lord king, so that she was summoned and distrained to come in to court, and she so responded that she remained in mercy of 10s. by judgment, so that for that amercement and for other complaints she made fine with her lord for 1/2 mark [7s.] and put her land in pledge in his court and did not want to render the 1/2 mark [7s.]. and therefore by judgment of his court he seised it. matilda denies all word for word. and the same clement only produces two men from his court; and it is considered that it was no court. judgment: let matilda have her seisin and let clement be in mercy for disseisin. fitz hereward v. prior of lecton (1195, king's court): the assize came to recognize if the prior of lecton unjustly and without judgment disseised reginald son of hereward and essolda his wife of his free tenement in clapston after the first coronation of the lord king. the prior says that the assize ought not be taken thereof, because he seised that land by judgment of his court for default of his service and his rent, whereof he has his court present, which asserts the same thing. it is considered that the prior replevy [give back] to them their land and give them a day in his court concerning the arrears of rents and services. and let him treat them justly by judgment of his court. stanfeld v. brewes (1199, king's court): the assize comes to recognize if simon of brewes and luke cleric and peter of brewes unjustly and without a judgment disseised odo of stanfeld and juliana his wife of her free tenement in michehey within the assize. simon says that the assize ought not be taken thereof, because he took that land into his hand by judgment of his court -which he produced and which attests to this -for default of his service. and it was testified that odo holds that land from the same simon. simon was ordered to replevy that land to odo as well as the chattels and to treat him rightfully in his court. fitz william v. amice et al. (1200, king's court): the assize comes to recognize if amice who was the wife of richard earl of clare and hugh of ceriton, john of cornherd, william of wattevill, alexander son of gilbert, alexander son of matthew, bartholomew son of alexander, robert of cornherd, and geoffrey son of leveric unjustly and without judgment disseised richard son of william of sudbury of his free tenement in sudbury after the feast of st michael next before the coronation of the lord king. the countess says that, when she was separated by papal order from the earl of clare her husband by reason of consanguinity, to which husband the vill of sudbury had been given with her as marriage portion, she came to sudbury and convoked her court and made the same richard to be summoned to come to show by what warrant he held her land. he willingly entered into the plea and vouched the earl of clare her former husband to warrant and at the day given him to have [his warrantor] he did not have him. and thus by consideration of her court she seised her land and holds it. which court she produced and which attests this. richard comes and denies that he was ever summoned or came into her court by summons or vouched to warranty or so lost seisin by consideration of the court of the countess. and this he offers [to prove]. it is considered that he defend himself 12-handed that he did not willingly enter into the plea and vouch to warranty. let him wage his law [prove by the 12-handed oath, thus, by compurgation]. pledges of the law: hugh son of hugh, wido of sudbury. day is given them at the quindene of st. john. this is the suit of richard of sudbury: [there follow the names, but only of 10 men] against the countess amice who was the countess of clare, concerning whom he had complained concerning a novel disseisin of his free tenement in sudbury. she said that by judgment of her court for default of warranty which he had vouched did she make the [dis]seisin and thereof did she produce suit. and he denied against her and against the suit, and law was adjudged. and he comes with his law and makes it with the abovesaid suit. therefore it is considered that he recover thereof his seisin; let the countess be in mercy for unjust disseisin and also her men, of whom the same richard has complained. and let the same countess return to him the damages done thereof by a jury of law-worthy men of the vicinity. the names of the men of the countess are in the writ. a sample of crown pleas in several hundreds or wapentakes [danish name for a hundred] from 1201 to 1203 are: 1. denise, who was wife to anthony, appeals nicholas kam of the death of anthony, her husband, for that he wickedly slew her husband; and this she offers to prove against him under award of the court. and nicholas defends all of it. it is considered that denise's appeal is null, for in it she does not say that she saw the deed. the jurors being asked, say that they suspect him of it; the whole county likewise suspects him. let him purge himself by water [ordeal] under the assize. he has waged his law. 2. william de ros appeals ailward bere, roger bald, robert merchant, and nicholas parmenter, for that they came to his house and wickedly in the king's peace took away from him a certain villein of his whom he kept in chains because he wished to run away, and led him off, and in robbery carried away his wife's coffer with one mark of silver and other chattels; and this he offers to prove by his son, robert de ros, who saw it. and ailward and the others have come and defended the felony, robbery, and breach of the king's peace, and say that (as the custom is in cornwall) roger of prideaux, by the sheriff's orders, caused twelve men to come together and make oath about the said villein, whether he was the king's villein or william's and it was found that he was the king's villein, so the said roger the serjeant demanded that [william] should surrender him, and he refused, so [roger] sent to the sheriff, who then sent to deliver [the villein], who, however, had escaped and was not to be found, and william makes this appeal because he wishes to keep the chattels of thomas [the villein], to wit, two oxen, one cow, one mare, two pigs, nine sheep, eleven goats. and that this is so the jurors testify. judgment: william and robert in mercy for the false claim. william's amercement, a half-mark. robert's amercement, a half-mark. pledge for the mark, warin, robert's son. let the king have his chattels from william. pledge for the chattels, richard, hervey's son. 3. serlo of ennis-caven appeals osbert of dimiliock and jordan, walter's son, for that they in the king's peace wickedly assaulted, beat and seriously wounded him, so that by reason of the beating three bones were extracted from his head; and this he offers to prove against him under the court's award as a man maimed by that mayhem. and it is testified by the coroners that the wounds when fresh were shown in the county [court], and that [the bones were broken] as aforesaid. and osbert and jordan come and defend word by word. it is considered that osbert do purge himself by ordeal of iron on account of the appeal, for serlo betook himself against osbert in the first instance. and let jordan be in custody until it be known how osbert shall fare. and the other persons who are appealed as accessories are to be under pledge until [osbert's fate] be known. 4. the jurors say that they suspect william fisman of the death of agnes of chilleu, for the day before he had threatened her body and goods. and the four neighboring townships being sworn, suspect him of it. it is considered that he purge himself by water under the assize. 5. william burnell and luke of the well are suspected of the burglary at the house of richard palmer by the jurors of the hundred, and by the four neighboring townships, which are sworn. let them purge themselves by water under the assize. 6. malot crawe appeals robert, godfrey's son, of rape. he comes and defends. it is testified that he thus raped her and that she was seen bleeding. by leave of the justices they made concord on the terms of his espousing her. 7. walter wifin was burgled, and of his chattels taken from his house in the burglary certain boots were found in the house of lefchild of ranam, and the said walter pursues those boots as his. and lefchild said that he bought them in bodmin market for 2 1/2 pence, but he knows not from whom. and besides walter says that eleven ells of linen cloth, part of the stolen goods, were sold in lefchild's house, and all the other proceeds of the burglary, and that lefchild was the receiver of the burglars, namely, robert of hideford and alan the foresters, whom he [walter] had appealed of the crime. and lefchild defends. the jurors on being asked, say that they suspect lefchild of the said receipt. so let him purge himself by water under the assize. 8. eadmer of penwithen appeals martin, robert and thomas of penwithen, for that robert wounded him in the head so that twentyeight pieces of bone were extracted, and meanwhile martin and thomas held him; and this he offers to deraign against the said robert as a man thereby maimed, under the court's award. and robert comes and defends all of it word by word. it is considered that he purge himself by ordeal of iron. let the others be in custody until it be known how robert shall fare. afterwards eadmer came and withdrew himself, and submitted to an amercement of one mark. pledges, reinfrid, gill's son, and philip his brother. let the other appellees go quit. 9. reginald le teinus accused of the receipt and fellowship of robert the outlaw comes and defends. the jurors say that they suspect him, and the four neighboring townships say that they suspect him of it. so let him purge himself by water under the assize. and there must be inquiry as to richard revel, who was sheriff when the said robert escaped from his custody. 10. osbert of reterth appeals odo hay, for that he assaulted him as he was returning from bodmin market, and in the king's peace and wickedly struck him on the hand with a stick, and afterwards struck him on the arm with his sword so that he is maimed; and this he offers to prove as a maimed man. and odo defends it all. and that [osbert] is maimed is testified by knights sent to see him. judgment: let [odo] purge himself by ordeal of iron because of this appeal. 11. wulward of wadebridge was burgled. and odo hay, lawrence smith, osbert mediciner, and benet his son, william miller, robert of frokemere, and maud his sister, are suspected of the burglary by the jurors of the hundred and by the four nearest townships, which are sworn. let the males purge themselves by water under the assize, and maud by ordeal of iron. roger morand fled for that burglary, and he was living in bodmin, [which town is] therefore in mercy. 12. robert, godfrey's son, appeals philip, william's son, for that he came on the land of [robert's] lord richard fortescue, and wickedly and in the king's peace and in robbery took eight oxen and a mantle, cape, and sword, and carried them off; and this he offers to prove against him by his body under award of the court. and philip comes and defends all of it word by word. it is considered that the appeal is null, for the oxen were not robert's, but richard's. the jurors being asked, say that [philip] did no robbery to [richard]. so richard fortescue is in mercy for a false appeal, and let philip be quit. 13. peter burel appeals anketil of wingely, for that he wickedly in the king's peace assaulted him in the field where he was pasturing his oxen, and beat him, and gave him four wounds in the head, and in robbery took from him an axe and a sword; and this he offers to prove against him; but he shows no wound. and anketil defends. and the county records that [peter] first appealed roger of tregadec of the same robbery and of the same wounds. therefore it is considered that the appeal is null, and let peter be in mercy for a false appeal. his amercement, a half-mark; pledge for it, ralph giffard. 14. the jurors are in mercy for a silly presentment, for they presented an appeal which was made in the hundred [court] and which was not presented in the county [court]. 15. lucy of morwinstow appeals robert de scaccis and roland of kellio and peter of lancarf of robbing her of twenty shillings and eight pence, and of a cloak, price a half-mark. and it is testified by the jurors that they did not rob her, and that she is a hireling, and that a man lay with her in a garden, and the boys hooted her, so that she left her cloak, and the boys took it and pawned it for two gallons of wine. it is considered that robert do give her three pence in respect of the wine and do go quit. and roland and peter neither come nor essoin [present an excuse for nonappearance] themselves. and their pledges were nicholas brother of alfred of bodmin and herbert reeve of bodmin, who are therefore in mercy. 16. osbert church accused of the death of roland, son of reginald of kennel, on the appeal of the said reginald, was detained in gaol and defends word by word. and reginald offers proof by the body of a certain freeman, arkald, who has his [reginald's] daughter to wife, who is to prove in his stead, since he has passed the age of sixty. osbert church defends all of it. the knights of the hundred of penwith say that they suspect him of the said death. the knights of kerrier [hundred] say the same. the knights of penwith [hundred] say the same. the knights of pyder [hundred] say the same. judgment: let him purge himself by water, and reginald is in mercy, for he does not allege sight and hearing, and because he has withdrawn himself, and put another in his place, who neither saw nor heard and yet offered to prove it, and so let both reginald and arkald be in mercy. osbert is purged by the water. osbert's pledges: henry little, henry of penant, ossulf black, roger of trevithow, john of glin, ralph of trelew. 17. roger of wick [was] appealed of the death of brictmer by the appeal of hawise, brictmer's wife, and was captured in flight, as say john of winielton and ralph of mertherin, but the flight is not testified by the hundred. kerier [hundred] says the same. penwith [hundred] says the same. so is considered that he purge himself by water. he is purged. roger's pledges: ralph of trelew, ogier of kurnick, richard, simon's son, alfred malvoisin, everwin of lande, john of kewerion, warin of tiwardeni, baldwin tirel, roger of trevithow, john of glin, william of dunham, thomas, osbert's son. 18. richard, william's son, appealed luke, richard's son, and william, the servant of alan clerk, of robbery and of binding him. the appellees have not come nor essoined themselves. the county together with the wapentake says that they were appealed, not of the king's peace, but of the sheriff's peace, so that the suit was and is in the county [court], and therefore they were not attached to come before the justices. therefore the jurors are in mercy for presenting what they ought not to have presented. 19. william, hawise's son, appeals richard, son of robert of somercotes, for that he came in the king's peace to his house at somercotes, and broke his house and robbed him of...[an abrasion] shillings, and a cape and surcoat, and twenty-five fowls, and twenty shillings worth of corn [grain], and wounded him in the head with the wound that he shows; and this he offers to prove against him as the court shall consider etc. and richard comes and defends the breach of the king's peace and the house-breaking, wounding and robbery, but confesses that he came to a certain house, which william asserts to be his [william's], as to his [richard's] own proper house, which escheated into his hand on the death of roger his villein, and there he took certain chattels which were his villein's and which on his villein's death were his [richard's] own: to wit, five thraves of oats, thirteen sheaves of barley, and twenty-five fowls; and he offers the king twenty shillings for an inquest [to find] whether this be so or no. and william says that richard says this unjustly, for the said roger never had that house nor dwelt therein, nor were those chattels roger's, but he [william] held that house as his own, and the chattels there seized were his. the jurors being questioned whether roger did thus hold the house of richard in villeinage, say, yes. also the coroners and the whole county testify that [william] never showed any wound until now; and the wound that he now shows is of recent date. therefore it is considered that the appeal is null, and let richard go quit, and william be in mercy for his false claim. pledges for the amercement, gilbert, robert's son, and richard, haldeng's son. 20. astin of wispington appeals simon of edlington, for that he wickedly and in the king's peace assaulted him in his meadows and put out his eye, so that he is maimed of that eye; and this he offers to prove etc. simon comes and defends all of it word by word. and the coroners and the county testify that hitherto the appeal has been duly sued, at first by [astin's] wife, and then by [astin himself]. judgment: let law be made, and let it be in the election of the appellee whether he or astin shall carry the iron. he has chosen that astin shall carry it. astin has waged the law. simon's pledges, william of land and his frankpledge and ralph of stures. astin's pledges, roger thorpe, osgot of wispington, and william, joel's brother. afterwards came [the appellor and appellee] and both put themselves in mercy. 21. gilbert of willingham appeals gilbert, geoffrey's son, for that he in the king's peace and wickedly set fire to his house and burned it, so that after the setting fire [the appellor] went forth and raised hue and cry so that his neighbors and the township of willingham came thither, and he showed them [the appellee] in flight and therefore they pursued him with the cry; and this he offers etc. and the appellee defends all of it word by word etc. and the neighbors and the township of willingham being questioned, say that they never saw him in flight, and that [the appellor] never showed him to them. likewise the jurors say that in their belief he appeals him out of spite rather than for just cause. therefore it is considered that the appeal is null, and the appellee is in mercy for a half-mark [7s.]. pledge for the amercement, robert walo. 22. william burel appeals walter morcock, for that he in the king's peace so struck and beat margery, [william's] wife, that he killed the child in her womb, and besides this beat her and drew blood. and william of manby, the beadle, testifies that he saw the wound while fresh and the blood in the wapentake [court]. and the serjeant of the riding and the coroners and the twelve knights testify that they never saw wound nor blood. and so it is considered that the appeal is null, for one part of the appeal being quashed, it is quashed altogether, and william burel is in mercy. let him be in custody. and william manby is in mercy for false testimony. pledges for william's amercement, richard of bilsby, elias of welton. 23. william marshall fled for the death of sigerid, denis' mother, whereof denis appeals him; and he was in the prior of sixhills' frank-pledge of sixhills, which is in mercy, and his chattels were two cows and one bullock. afterwards came the prior of sixhills and undertook to have william to right before the justices. and he came, and then denis, sigerid's son, came and appealed him of his mother's death. and it was testified that [denis] had an elder brother, and that nine years are past since [sigerid] died, and that she lived almost a year after she was wounded, and that denis never appealed [william] before now. therefore it is considered that the appeal is null and that denis be in mercy. pledge for the amercement, his father, ralph, son of denis. 24. alice, wife of geoffrey of carlby, appealed william, roger's son, and william his son and roger his son of the death of william her brother. and alice does not prosecute. therefore let her be in mercy and let her be arrested. to judgment against the sheriff who did not imprison the said persons who were attached, whereas they are appealed of homicide, and to judgment also as to a writ which he ought to produce. 25. hawise, thurstan's daughter, appeals walter of croxby and william miller of the death of her father and of a wound given to herself. and she has a husband, robert franchenay, who will not stir in the matter. therefore it is considered that the appeal is null, for a woman has no appeal against anyone save for the death of her husband or for rape. and let robert be in mercy on his wife's account, for a half-mark [7s.], and let the appellees be quit. pledge for robert's amercement, richard dean of mareham, who has lay property. wapentake of aswardhurn. 26. juliana of creeton appeals adam of merle of battery and robbery. and adam does not come, but essoins himself as being in the king's service beyond seas. and for that it is not allowed to anyone appealed of the king's peace to leave the land without a warrant before he has been before justices learned in the law, his pledges are in mercy: to wit, segar of arceles, alan of renington, and robert of searby. adam himself is excused from the plea by the essoin that he has cast. 27. thomas, leofwin's son, appeals alan harvester, for that he in the king's peace assaulted him as he went on the highway, and with his force carried him into alan's house, and struck him on the arm so that he broke a small bone of his arm, whereby he is maimed, and robbed him of his cape and his knife, and held him while eimma, [alan's] wife, cut off one of his testicles and ralph pilate the other, and when he was thus dismembered and illtreated, the said alan with his force carried him back into the road, whereupon as soon as might be he raised the cry, and the neighbors came to the cry, and saw him thus ill-treated, and then at once he sent to the king's serjeant, who came and found, so [thomas] says, the robbed things in alan's house and then as soon as might be [thomas] went to the wapentake [court] and to the county [court] and showed all this. so inquiry is made of the king's sergeant, who testifies that he came to alan's house and there found the knife and the testicles in a little cup, but found not the cape. also the whole county testifies that [thomas] never before now appealed alan of breaking a bone. and so it is considered that the appeal is null, and that [thomas] be in mercy, and that the other appellees be quit. thomas also appeals emma, alan's wife, for that she in the peace aforesaid after he was placed in her lord's house cut off one of his testicles. he also appeals ralph pilate, for that he cut off the other of his testicles. 28. the twelve jurors presented in their verdict that austin, rumfar's son, appealed ralph gille of the death of his brother, so that [ralph] fled, and that william, rumfar's son, appealed benet carter of the same death, and ranulf, ralph's son, appealed hugh of hyckham of the same death and baldwin of elsham and ralph hoth and colegrim as accessories. and the coroners by their rolls testify this also. but the county records otherwise, namely, that the said ralph gille, benet, hugh, baldwin, ralph [hoth] and gocegrim were all appealed by ranulf, ralph's son, and by no one else, so that four of them, to wit, ralph gille, hugh, benet and colegrim, were outlawed at the suit of the said ranulf, and that the said persons were not appealed by anyone other than the said ranulf. and for that the county could not [be heard to] contradict the coroners and the said jurors who have said their say upon oath, it is considered etc. thereupon the county forestalled the judgment and before judgment was pronounced made fine with 200 pounds [4,000s.][to be collected throughout the county], franchises excepted. 29. hereward, william's son, appeals walter, hugh's son, for that he in the king's peace assaulted him and wounded him in the arm with an iron fork and gave him another wound in the head; and this he offers to prove by his body as the court shall consider. and walter defends all of it by his body. and it is testified by the coroners and by the whole county that hereward showed his wounds at the proper time and has made sufficient suit. therefore it is considered that there be battle. walter's pledges, peter of gosberton church, and richard hereward's son. hereward's pledges, william his father and the prior of pinchbeck. let them come armed in the quindene of st. swithin at leicester. 30. william gering appeals william cook of imprisonment, to wit, that he with his force in the king's peace and wickedly, while [gering] was in the service of his lord guy at the forge, took him and led him to freiston to the house of william longchamp, and there kept him in prison so that his lord could not get him replevied; and this he offers to prove as the court shall consider. and william cook comes and defends the felony and imprisonment, but confesses that whereas he had sent his lord's servants to seize the beasts of the said guy on account of a certain amercement which [guy] had incurred in the court of [cook's] lord [longchamp], and which though often summoned he had refused to pay, [gering] came and rescued the beasts that had been seized and wounded a servant of [cook's] lord, who had been sent to seize them, whereupon [cook] arrested [gering] until he should find pledges to stand to right touching both the wounding and the rescue, and when [gering's] lord [guy] came for him, [cook] offered to let him be replevied, but this [guy] refused, and afterwards he repeated the offer before the king's serjeant, but even then it was refused, and then [cook] let [gering] go without taking security. and guy says that he puts himself upon the wapentake, whether the imprisonment took place in manner aforesaid, and whether he [guy] at once showed the matter to the king's serjeant, or no. and william cook does the same. and the wapentake says that the alleged [imprisonment] took place in lent, and guy did not show the matter to the wapentake until a fortnight before st. botulph's day. and the county together with the coroners says that they never heard the suit in their court. therefore it is considered that the appeal is null, and guy is in mercy. and let william and those who are appealed as accessories go quit. 31. the jurors say that andrew, sureman's son, appealed peter, leofwin's son, thomas squire and william oildene of robbery. and he does not prosecute. so he and stephen despine and baldwin long are in mercy, and the appellees go without day. afterwards comes andrew and says that [the appellees] imprisoned him by the order of william malesoures in the said william's house, so that he sent to the sheriff that the sheriff might deliver him, whereupon the sheriff sent his serjeant and others thither, who on coming there found him imprisoned and delivered him and he produces witnesses, to wit, nicholas portehors and hugh, thurkill's son, who testify that they found him imprisoned, and he vouches the sheriff to warrant this. and the sheriff, on being questioned, says that in truth he sent thither four lawful men with the serjeant on a complaint made by nicholas portehors on andrew's behalf. and those who were sent thither by the sheriff testify that they found him at liberty and disporting himself in william's house. therefore it is considered that the appeal is null [and andrew is in mercy] for his false complaint and nicholas portehors and hugh, thurkill's son, are in mercy for false testimony. andrew and hugh are to be in custody until they have found pledges [for their amercement]. 32. the jurors say that geoffrey cardun has levied new customs other than he ought and other than have been usual, to wit, in taking from every cart crossing his land at winwick with eels, one stick of eels, and from a cart with greenfish, one greenfish, and from a cart with salmon, half a salmon, and from a cart with herrings, five herrings, whereas he ought to take no custom for anything save for salt crossing his land, to wit, for a cart-load, one bole of salt, and in that case the salter ought to have a loaf in return for the salt, and also if the salter's cart breaks down, the salter's horses ought to have pasture on geoffrey's land without challenge while he repairs his cart. and geoffrey comes and confesses that he takes the said customs, and ought to take them, for he and his ancestors have taken them from the conquest of england, and he puts himself on the grand assize of our lord the king, and craves that a recognition be made whether he ought to take those customs or no. and afterwards he offers the king twenty shillings that this action may be put before sir geoffrey fitzpeter [the justiciar]. pledge for the twenty shillings, richard of hinton. 33. the jurors say that hugh, son of walter priest, was outlawed for the death of roger rombald at the suit of robert rombald, and afterwards returned under the [protection of the] king's writ, and afterwards was outlawed for the same death on the appeal of geoffrey, thurstan's son. the county therefore is asked by what warrant they outlawed the same man twice for the same death, and says that of a truth in king richard's time the said hugh was outlawed at the suit of one lucy, sister of the said roger, so that for a long time afterwards he hid himself; and at length he came into the county [court] and produced letters of sir geoffrey fitzpeter in the form following: "g. fitzpeter etc. to the sheriff of northamptonshire, greeting, know thou that the king hath pardoned to hugh, son of the priest of grafton, his flight and the outlawry adjudged to him for the death of a certain slain man, and hath signified to us by his letters that we be aiding to the said hugh in re-establishing the peace between him and the kinsfolk of the slain; wherefore we command thee that thou be aiding to the said hugh in making the peace aforesaid, and do us to wit by thy letters under seal what thou hast done in this matter, since we are bound to signify the same to the king. in witness etc. by the king's writ from beyond seas." and the said letters being read in full county [court] the county told the said hugh that he must find pledges that he would be in the king's peace, and he went away to find pledges, and afterwards did not appear. but the kinsfolk of the slain, having heard that hugh had returned after his outlawry, came to the next county [court] and robert rombald produced geoffrey, thurstan's son, who said that if he saw the said hugh he would sue against him the death of the said roger, who was [his kinsman]. and the county showed him how hugh had brought the justiciar's letters pardoning him the flight and outlawry, and that he was to find pledges to stand to the king's peace, but had not returned. whereupon the king's serjeant was ordered to seek hugh and bring him to a later county [court]. and at a later county [court] geoffrey offered himself against hugh, and hugh did not appear; whereupon the king's serjeant being questioned said that he had not found him, and the county advised [geoffrey] to come to another county [court], because if in the meantime hugh could be found, he would be brought to the county [court]. then at the third county [court] the said geoffrey offered himself, and it was testified by the serjeant that hugh had not yet been found, wherefore the county said that as hugh would not appear to the king's peace, he must bear the wolf's head as he had done before. to judgment against the coroners and the twelve jurors. 34. robert of herthale, arrested for having in self-defense slain roger, swein's son, who had slain five men in a fit of madness, is committed to the sheriff that he may be in custody as before, for the king must be consulted about this matter. the chattels of him who killed the five men were worth two shillings, for which richard [the sheriff must account]. 35. sibil, engelard's daughter, appeals ralph of sandford, for that he in the king's peace and wickedly and in breach of the peace given to her in the county [court] by the sheriff, came to the house of her lord [or husband] and broke her chests and carried off the chattels, and so treated her that he slew the child that was living in her womb. afterwards she came and said that they had made a compromise and she withdrew herself, for they have agreed that ralph shall satisfy her for the loss of the chattels upon the view and by the appraisement of lawful men; and ralph has assented to this. 36. william pipin slew william [or john] guldeneman and fled. he had no chattels. let him be exacted. and hugh fuller was taken for this death and put in gaol because the said john [or william] was slain in his house. and hugh gives to the king his chattels which were taken with him, that he may have an inquest [to find] whether he be guilty thereof or no. the jurors say that he is not guilty, and so let him go quit thereof. and william picot is in mercy for having sold hugh's chattels before he was convicted of the death, and for having sold them at an undervalue, for he sold them, as he says, for three shillings, and the jurors say that they were worth seventeen shillings, for which william picot and those who were his fellows ought to account. and william says that the chattels were sold by the advice of his fellows, and his fellows deny this. 37. robert white slew walter of hugeford and fled. the jurors say that he was outlawed for the death, and the county and the coroners say that he was not outlawed, because no one sued against him. and because the jurors cannot [be heard to] contradict the county and the coroners, therefore they are in mercy, and let robert be exacted. his chattels were [worth] fifteen shillings, for which r. of ambresleigh, the sheriff, must account. 38. elyas of lilleshall fled to church for the death of a woman slain at lilleshall. he had no chattels. he confessed the death and abjured the realm. alice crithecreche and eva of lilleshall and aldith and mabel, geoffrey and robert of lilleshall, and peter of hopton were taken for the death of the said woman slain at lilleshall. and alice, at once after the death, fled to the county of stafford with some of the chattels of the slain, so it is said, and was taken in that county and brought back into shropshire and there, as the king's serjeant and many knights and lawful men of the county testify, in their presence she said, that at night she heard a tumult in the house of the slain; whereupon she came to the door and looked in, and saw through the middle of the doorway four men in the house, and they came out and caught her, and threatened to kill her unless she would conceal them; and so they gave her the pelf [booty] that she had. and when she came before the [itinerant] justices she denied all this. therefore she has deserved death, but by way of dispensation [the sentence is mitigated, so] let her eyes be torn out. the others are not suspected, therefore let them be under pledges. 39. william, john's son, appeals walter, son of ralph hose, for that when [william's] lord guy of shawbury and [william] had come from attending the pleas of our lord the king in the county court of shropshire, there came five men in the forest of haughmond and there in the king's peace and wickedly assaulted his lord guy, and so that [walter], who was the fourth among those five, wounded guy and was accessory with the others in force as aid so that guy his lord was killed, and after having wounded his lord he [walter] came to william and held him so that he could not aid his lord; and this he offers to deraign [determine by personal combat] against him as the court shall consider. and walter comes and defends all of it word by word as the court etc. it is considered that there be battle [combat] between them. the battle [combat] is waged. day is given them, at oxford on the morrow of the octave of all saints, and then let them come armed. and ralph [walter's father] gives the king a half-mark that he may have the custody of his son, [for which sum] the pledges are john of knighton and reiner of acton, and he is committed to the custody of ralph hose, reiner of acton, john of knighton, reginald of leigh, adam of mcuklestone, william of bromley, stephen of ackleton, eudo of mark. 40. robert, son of robert of ferrers, appeals ranulf of tattesworth, for that he came into robert's garden and wickedly and in the king's peace assaulted robert's man roger, and beat and wounded him so that his life was despaired of, and robbed him [roger?] of a cloak, a sword, a bow and arrows: and the said roger offers to prove this by his body as the court shall consider. and ranulf comes and defends the whole of it, word by word, and offers the king one mark of silver that he may have an inquest of lawful knights [to say] whether he be guilty thereof or no. also he says that roger has never until now appealed him of this, and prays that this be allowed in his favor. [ranulf's] offering is accepted. the jurors say that in truth there was some quarrel between robert's gardener, osmund, and some foot-boys, but ranulf was not there, and they do not suspect him of any robbery or any tort done to robert or to osmund. also the county records that the knights who on robert's complaint were sent to view osmund's wounds found him unwounded and found no one else complaining, and that robert in his plaint spoke of osmund his gardener and never of roger, and that roger never came to the county [court] to make this appeal. therefore it is considered that ranulf be quit, and robert and roger in mercy. pledge for ranulf's mark, philip of draycot. pledges for the amercement, henry of hungerhill, and richard meverell. pledge for roger, the said robert. 41. one l. is suspected by the jurors of being present when reinild of hemchurch was slain, and of having aided and counseled her death. and she defends. therefore let her purge herself by the ordeal of iron; but as she is ill, the ordeal is respited until her recovery. 42. andrew of burwarton is suspected by the jurors of the death of one hervey, for that he concealed himself because of that death. therefore let him purge himself by ordeal of water. 43. godith, formerly wife of walter palmer, appeals richard of stonall, for that he in the king's peace wickedly and by night with his force came to her house and bound her and her husband, and afterwards slew the said walter her husband; and this she offers to prove against him as wife of the slain as the court shall consider. and he defends all of it. and the jurors and the whole neighborhood suspect him of that death. and so it is considered that he purge himself by ordeal of iron for he has elected to bear the iron. 44. the jurors of oflow hundred say that the bailiffs of tamworth have unjustly taken toll from the knights of staffordshire, to wit, for their oxen and other beasts. and the men of lichfield complain that likewise they have taken toll from them, more especially in staffordshire. and the bailiffs deny that they take anything from the knights in staffordshire. and for that they cannot [be heard to] contradict the jurors, the bailiffs are in mercy. as to the men of lichfield, [the tamworth bailiffs] say that they ought to have, and in king henry's time had, toll of them, more especially of the merchants, as well in staffordshire as in warwickshire. and the burgesses of lichfield offer the king a half-mark for an inquest by the county. and the county records that in king henry's time the men of lichfield did not pay toll in staffordshire. therefore the bailiffs are in mercy. chapter 7 the times 1215-1272 baron landholders' semi-fortified stone manor houses were improved and extended. many had been licensed to be embattled or crenellated [wall indented at top with shooting spaces]. they were usually quadrangular around a central courtyard. the central and largest room was the hall, where people ate and slept. if the hall was on the first floor, the fire might be at a hearth in the middle of the floor. sometimes the lord had his own chamber, with a sleeping loft above it. having a second floor necessitated a fireplace in the wall so the smoke could go up two floors to the roof. other rooms each had a fireplace. often the hall was on the second floor and took up two stories. there was a fireplace on one wall of the bottom story. there were small windows around the top story and on the inside of the courtyard. windows of large houses were of opaque glass supplied by a glass-making craft. the glass was thick, uneven, distorted, and greenish in color. the walls were plastered. the floor was wood with some carpets. roofs were timbered with horizontal beams. many roofs had tiles supplied by the tile craft, which baked the tiles in kilns or over an open fire. because of the hazard of fire, the kitchen was often a separate building, with a covered way connecting it to the hall. it had one or two open fires in fireplaces, and ovens. sometimes there was a separate room for a dairy. furniture included heavy wood armchairs for the lord and lady, stools, benches, trestle tables, chests, and cupboards. outside was an enclosed garden with cabbages, peas, beans, beetroots, onions, garlic, leeks, lettuce, watercress, hops, herbs, nut trees for oil, some flowers, and a fish pond and well. bees were kept for their honey. nobles, doctors, and attorneys wore tunics to the ankle and an over-tunic almost as long, which was lined with fur and had long sleeves. a hood was attached to it. a man's hair was short and curled, with bangs on the forehead. the tunic of merchants and middle class men reached to the calf. the laborer wore a tunic that reached to the knee, cloth stockings, and shoes of heavy felt, cloth, or perhaps leather. ladies wore a full-length tunic with moderate fullness in the skirt, and a low belt, and tight sleeves. a lady's hair was concealed by a round hat tied on the top of her head. over her tunic, she wore a cloak. monks and nuns wore long black robes with hoods. the barons now managed and developed their estates to be as productive as possible, often using the successful management techniques of church estates. they kept records of their fields, tenants, and services owed by each tenant, and duties of the manor officers, such as supervision of the ploughing and harrowing. annually, the manor's profit or loss for the year was calculated. most manors were self-supporting except that iron for tools and horseshoes and salt for curing usually had to be obtained elsewhere. wine, tar, canvas and millstones were imports from other countries and bought at fairs, as was fish, furs, spices, and silks. sheep were kept in such large numbers that they were susceptible to a new disease "scab". every great household was bound to give alms. as feudalism became less military and less rough, daughters were permitted to inherit fiefs. it became customary to divide the property of a deceased man without a son equally among his daughters. lords were receiving homage from all the daughters and thereby acquiring marriage rights over all of them. also, if a son predeceased his father but left a child, that child would succeed to the father's land in the same way that the deceased would have. manors averaged about ten miles distance between each other, the land in between being unused and called "wasteland". statutes after a period of civil war proscribing the retaking of land discouraged the enclosure of waste land. some villeins bought out their servitude by paying a substitute to do his service or paying his lord a firm (from hence, the words farm and farmer) sum to hire an agricultural laborer in his place. this made it possible for a farm laborer to till one continuous piece of land instead of scattered strips. looms were now mounted with two bars. women did embroidery. the clothing of most people was made at home, even sandals. the village tanner and bootmaker supplied long pieces of soft leather for more protection than sandals. tanning mills replaced some hand labor. the professional hunter of wolves, lynx, or otters supplied head coverings. every village had a smith and possibly a carpenter for construction of ploughs and carts. the smith obtained coal from coal fields for heating the metal he worked. horse harnesses were home-made from hair and hemp. there were water mills and/or wind mills for grinding grain, for malt, and/or for fulling cloth. the position of the sails of the wind mills was changed by manual labor when the direction of the wind changed. most men wore a knife because of the prevalence of murder and robbery. it was an every day event for a murderer to flee to sanctuary in a church, which would then be surrounded by his pursuers while the coroner was summoned. usually, the fugitive would confess, pay compensation, and agree to leave the nation permanently. it had been long customary for the groom to endow his bride in public at the church door. this was to keep her and her children if he died first. if dower was not specified, it was understood to be one-third of all lands and tenements. from 1246, priests taught that betrothal and consummation constituted irrevocable marriage. county courts were the center of decision-making regarding judicial, fiscal, military, and general administrative matters. the writs for the conservation of the peace, directing the taking of the oath, the pursuit of malefactors, and the observance of watch and ward, were proclaimed in full county court; attachments were made in obedience to them in the county court. the county offices were: sheriff, coroner, escheator, and constable or bailiff. there were 28 sheriffs for 38 counties. the sheriff was usually a substantial landholder and a knight who had been prominent in the local court. he usually had a castle in which he kept persons he arrested. he no longer bought his office and collected certain rents for himself, but was a salaried political appointee of the king. he employed a deputy or undersheriff, who was an attorney, and clerks. if there was civil commotion or contempt of royal authority, the sheriff had power to raise a posse of armed men to restore order [posse comitatus: power of the county]. the coroner watched the interests of the crown and had duties in sudden deaths, treasure trove, and shipwreck cases. there were about five coroners per county and they served for a number of years. they were chosen by the county court. the escheator was appointed annually by the treasurer to administer the crown's rights in feudal land, which until 1242 had been the responsibility of the sheriff. he was usually chosen from the local gentry. the constable and bailiff operated at the hundred and parish level to detect crime and keep the peace. they assisted sheriffs and justices of the peace, organized watches for criminals and vagrants at the village level, and raised the hue and cry along the highway and from village to village in pursuit of offenders who had committed felony or robbery. the constables also kept the royal castles; they recruited, fed, and commanded the castle garrison. county knights served sheriffs, coroners, escheators, and justices on special royal commissions of gaol-delivery. they sat in judgment in the county court at its monthly meetings, attended the two great annual assemblies when the lord, knights and freeholders of the county gathered to meet the itinerant justices who came escorted by the sheriff and weapon bearers. they served on the committees which reviewed the presentments of the hundreds and village, and carried the record of the county court to westminster when summoned there by the kings' justices. they served on the grand assize. as elected representatives of their fellow knights of the county, they assessed any taxes due from each hundred. election might be by nomination by the sheriff from a fixed list, by choice, or in rotation. they investigated and reported on local abuses and grievances. the king's justices and council often called on them to answer questions put to them on oath. in the villages, humbler freeholders and sokemen were elected to assess the village taxes. six villeins answered for the village's offenses before the royal itinerant justice. reading and writing in the english language was taught. the use of english ceased to be a mark of vulgarity. in 1258 the first governmental document was issued in english as well as in latin and french. latin started falling into disuse. boys of noblemen were taught reading, writing, latin, a musical instrument, athletics, riding, and gentlemanly conduct. girls were taught reading, writing, music, dancing, and perhaps household nursing and first aid, spinning, embroidery, and gardening. girls of high social position were also taught riding and hawking. grammar schools taught, in latin, grammar, dialectic (ascertaining word meaning by looking at its origin, its sound (e.g. soft or harsh), its power (e.g. robust and strong sound), its inflection, and its order; and avoiding obscurity and ambiguity in statements), and rhetoric [art of public speaking, oratory, and debate]. the teacher possessed the only complete copy of the latin text, and most of the school work was done orally. though books were few and precious, the students read several latin works. girls and boys of high social position usually had private teachers for grammar school, while boys of lower classes were sponsored at grammar schools such as those at oxford. discipline was maintained by the birch or rod. there was no examination for admission as an undergraduate to oxford, but a knowledge of latin with some skill in speaking latin was a necessary background. the students came from all backgrounds. some had their expenses paid by their parents, while others had the patronage of a churchman, a religious house, or a wealthy layman. they studied the "liberal arts", which derived its name from "liber" or free, because they were for the free men of rome rather than for the economic purposes of those who had to work. the works of greek authors such as aristotle were now available; the european monk thomas aquinas had edited aristotle's works to reconcile them to church doctrine. he opined that man's intellectual use of reason did not conflict with the religious belief that revelation came only from god, because reason was given to man by god. he shared aristotle's belief that the earth was a sphere, and that the celestial bodies moved around it in perfect circles. latin learning had already been absorbed without detriment to the church. a student at oxford would become a master after graduating from a seven year course of study of the seven liberal arts: [grammar, rhetoric (the source of law), aristotelian logic (which differentiates the true from the false), arithmetic, including fractions and ratios, (the foundation of order), geometry, including methods of finding the length of lines, the area of surfaces, and the volume of solids, (the science of measurement), astronomy (the most noble of the sciences because it is connected with divinity and theology), music and also aristotle's philosophy of physics, metaphysics, and ethics; and then lecturing and leading disputations for two years. he also had to write a thesis on some chosen subject and defend it against the faculty. a master's degree gave one the right to teach. further study for four years led to a doctorate in one of the professions: theology and canon or civil law. there were about 1,500 students in oxford. they drank, played dice, quarreled a lot and begged at street corners. there were mob fights between students from the north and students from the south and between students and townsmen. but when the mayor of oxford hanged two students accused of being involved in the killing of a townswoman, many masters and students left for cambridge. in 1214, a charter created the office of chancellor of the university at oxford. he was responsible for law and order and, through his court, could fine, imprison, and excommunicate offenders and expel undesirables such as prostitutes from the town. he had authority over all crimes involving scholars, except murder and mayhem. the chancellor summoned and presided over meetings of the masters and came to be elected by indirect vote by the masters who had schools, usually no more than a room or hall with a central hearth which was hired for lectures. students paid for meals there. corners of the room were often partitioned off for private study. at night, some students slept on the straw on the floor. six hours of sleep were considered sufficient. in 1231, the king ordered that every student must have his name on the roll of a master and the masters had to keep a list of those attending his lectures. in 1221 the friars established their chief school at oxford. they were bound by oaths of poverty, obedience, and chastity, but were not confined within the walls of a monastery. they walked barefoot from place to lace preaching. they begged for their food and lodgings. they replaced monks, who had become self-indulgent, as the most vital spiritual force among the people. the first college was founded in 1264 by walter de merton, former chancellor to the king, at oxford. a college had the living arrangements of a hall, with the addition of monastic-type rules. a warden and about 30 scholars lived and ate meals together in the college buildings. merton college's founding documents provided that: "the house shall be called the house of the scholars of merton, and it shall be the residence of the scholars forever. . . there shall be a constant succession of scholars devoted to the study of letters, who shall be bound to employ themselves in the study of arts or philosophy, the canons or theology. let there also be one member of the collegiate body, who shall be a grammarian, and must entirely devote himself to the study of grammar; let him have the care of the students in grammar, and to him also let the more advanced have recourse without a blush, when doubts arise in their faculty. . . there is to be one person in every chamber, where scholars are resident, of more mature age than the others, who is to make his report of their morals and advancement in learning to the warden. . . the scholars who are appointed to the duty of studying in the house are to have a common table, and a dress as nearly alike as possible. . . the members of the college must all be present together, as far as their leisure serves, at the canonical hours and celebration of masses on holy and other days. . . the scholars are to have a reader at meals, and in eating together they are to observe silence, and to listen to what is read. in their chambers, they must abstain from noise and interruption of their fellows; and when they speak they must use the latin language. . . a scrutiny shall be held in the house by the warden and the seniors, and all the scholars there present, three times a year; a diligent enquiry is to be instituted into the life, conduct, morals, and progress in learning, of each and all; and what requires correction then is to be corrected, and excesses are to be visited with condign punishment. . ." educated men (and those of the 1200s through the 1500s), believed that the earth was the center of the universe and that it was surrounded by a giant spherical dome on which the stars were placed. the sun and moon and planets were each on a sphere around the earth that was responsible for their movements. the origin of the word "planet" meant "wanderer" because the motion of the planets were variable in direction and speed. astrology explained how the position of the stars and planets influenced man and other earthly things. for instance, the position of the stars at a person's birth determined his character. the angle and therefore potency of the sun's rays influenced climate, temperament, and changes of mortal life such as disease and revolutions. unusual events such as the proximity of two planets, a comet, an eclipse, a meteor, or a nova were of great significance. a star often was thought to presage the birth of a great man or a hero. there was a propitious time to have a marriage, go on a journey, make war, and take herbal medicine or be bled by leeches, the latter of which was accompanied by religious ceremony. cure was by god, with medical practitioners only relieving suffering. but there were medical interventions such as pressure and binding were applied to bleeding. arrow and sword wounds to the skin or to any protruding intestine were washed with warm water and sewn up with needle and silk thread. ribs were spread apart by a wedge to remove arrow heads. fractured bones were splinted or encased in plaster. dislocations were remedied. hernias were trussed. bladder stones blocking urination were pushed back into the bladder or removed through an artificial opening in the bladder. surgery was performed by butchers, blacksmiths, and barbers. roger bacon, an oxford master, began the science of physics. he read arab writers and studied the radiation of light and heat. he studied angles of reflection in plane, spherical, cylindrical, and conical mirrors, in both their concave and convex aspects. he did experiments in refraction in different media, e.g. air, water, and glass, and knew that the human cornea refracted light and that the human eye lens was doubly convex. he comprehended the magnifying power of convex lenses and conceptualized the combination of lenses which would increase the power of vision by magnification. he realized that rays of light pass so much faster than those of sound or smell that the time is imperceptible to humans. he knew that rays of heat and sound penetrate all matter without our awareness and that opaque bodies offered resistance to passage of light rays. he knew the power of parabolic concave mirrors to cause parallel rays to converge after reflection to a focus and knew that a mirror could be produced that would induce combustion at a fixed distance. these insights made it possible for jewellers and weavers to use lenses to view their work instead of glass globes full of water, which distorted all but the center of the image: "spherical aberration". the lens, whose opposite surfaces were sections of spheres, took the place of the the central parts of the globe over the image. he knew about magnetic poles attracting if different and repelling if the same and the relation of magnets' poles to those of the heavens and earth. he calculated the circumference of the world and the latitude and longitude of terrestrial positions. he foresaw sailing around the world. bacon began the science of chemistry when he took the empirical knowledge as to a few metals and their oxides and some of the principal alkalis, acids, and salts to the abstract level of metals as compound bodies the elements of which might be separated and recomposed and changed among the states of solid, liquid, and gas. when he studied man's physical nature, health, and disease, he opined that the usefulness of a talisman was not to bring about a physical change, but to bring the patient into a frame of mind more conducive to physical healing. he urged that there be experiments in chemistry to develop medicinal drugs. he studied different kinds of plants and the differences between arable land, forest land, pasture land, and garden land. he studied the planetary motions and astronomical tables to forecast future events. he did calculations on days in a month and days in a year which later contributed to the legal definition of a leap year. bacon was an extreme proponent of the inductive method of finding truths, e.g. by categorizing all available facts on a certain subject to ascertain the natural laws governing it. his contribution to the development of science was abstracting the method of experiment from the concrete problem to see its bearing and importance as a universal method of research. he advocated changing education to include studies of the natural world using observation, exact measurement, and experiments. his explanation of a rainbow as a result of natural laws was contrary to theological opinion that a rainbow was placed in the heavens to assure mankind that there was not to be another universal deluge. the making and selling of goods diverged e.g. as the cloth merchant severed from the tailor and the leather merchant severed from the butcher. these craftsmen formed themselves into guilds, which sought charters to require all craftsmen to belong to the guild of their craft, to have legal control of the craft work, and be able to expel any craftsman for disobedience. these guilds were composed of master craftsmen, their journeymen, and apprentices. these guilds determined the wages and working conditions of the craftsmen and petitioned the borough authorities for ordinances restraining trade, for instance by controlling the admission of outsiders to the craft, preventing foreigners from selling in the town except at fairs, limiting purchases of raw materials to suppliers within the town, forbidding night work, restricting the number of apprentices to each master craftsmen, and requiring a minimum number of years for apprenticeships. in return, these guilds assured quality control. in some boroughs, they did work for the town, such as maintaining certain defensive towers or walls of the town near their respective wards. in some boroughs, fines for infractions of these regulations were split between the guild and the government. in some towns, the merchant guilds attempted to directly regulate the craft guilds. crafts fought each other. there was a street battle with much bloodshed between the goldsmiths and the parmenters and between the tailors and the cordwainers in 1267 in london. there was also a major fight between the goldsmiths and the tailors in 1268. the parish clerks' company was chartered in 1233. the citizens of london had a common seal for the city. london merchants traveled throughout the nation with goods to sell exempt from tolls. most of the london aldermen were woolmongers, vintners, skinners, and grocers by turns or carried on all these branches of commerce at once. jews were allowed to make loans with interest up to 2d. a week for 20s. lent. there are three inns in london. inns typically had narrow facades, large courtyards, lodging and refreshment for the well-off, warehousing and marketing facilities for merchants, and stabling and repairs for wagons. care-giving infirmaries such as "bethlehem hospital" were established in london. one was a lunatic infirmary founded by the sheriff of london. only tiles were used for roofing in london, because wood shingles were fire hazards and fires in london had been frequent. some areas near london are disclaimed by the king to be royal forest land, so all citizens could hunt there and till their land there without interference by the royal foresters. the sheriff's court in london lost its old importance and handled mainly trespass and debt cases, while important cases went to the hustings, which was presided over by the mayor with the sheriffs and aldermen in attendance. from the early 1200s, the mayor's court took on the work which the weekly husting could not manage. this consisted mostly of assault and robbery cases. murder and manslaughter cases were left to the royal courts. london aldermen were elected by the citizens of their respective wards in ward moots, in which was also arranged the watch, protection against fire, and probably also assessment of the taxes within the ward. there was much effort by the commoners to influence the governance of the city. in 1261 they forced their way into the town-moot and by this brute show of strength, which threatened riot, they made their own candidate mayor. subsequent elections were tumultuous. the tower of london now had outer walls of fortress buildings surrounded by a wide and deep moat, over which was one stone causeway and wooden drawbridge. within this was an inner curtain wall with twelve towers and an inner moat. the palace within was a principal residence of english monarchs, whose retinue was extensive, including the chief officers of state: lord high steward, lord high chancellor, lord high treasurer, lord great chamberlain, lord high constable, keeper of the seals, and the king's marshall; lesser officials such as the chamberlain of the candles, keeper of the tents, master steward of the larder, usher of the spithouse, marshall of the trumpets, keeper of the books, keeper of the dishes and of the cups, and steward of the buttery; and numbers of cat hunters, wolf catchers, clerks and limners, carters, water carriers, washerwomen and laundresses, chaplains, lawyers, archers, huntsmen, hornblowers, barbers, minstrels, guards and servitors, and bakers and confectioners. the fortress also contained a garrison, armory, chapels, stables, forge, wardrobe for a tailor's workroom and secure storage of valuable clothes, silver plate, and expensive imports such as sugar, rice, almonds, dried fruits, cinnamon, saffron, ginger, galingale, zedoary, pepper, nutmeg, and mace. there was a kitchen with courtyard for cattle, poultry, and pigs; dairy, pigeon loft, brewery, beehives, fruit stores, gardens for vegetables and herbs; and sheds for gardeners. there was also a mint, which minted a gold penny worth 2s. of silver, a jewel house, and a menagerie (with leopards, lions, a bear, and an elephant). the fortress also served as a state prison. most prisoners there had opposed the royal will; they were usually permitted to live in quarters in the same style they were used to, including servants and visits by family and friends. but occasionally prisoners were confined in irons in dark and damp dungeons. the king's family, immediate circle, and most distinguished guests dined elegantly in the great hall at mid-day. they would first wash their hands in hot water poured by servants over bowls. the table had silver plate, silver spoons, and cups of horn, crystal, maple wood, or silver laid on a white cloth. each guest brought his own knife in a leather sheath attached to a belt or girdle. a procession of servitors brought the many dishes to which the gentlemen helped the ladies and the young their seniors by placing the food in scooped-out half loaves of bread that were afterwards distributed to the poor. a wine cup was handed around the table. in the winter after dinner, there would often be games of chess or dice or songs of minstrels, and sometimes dancing, juggler or acrobat displays, or story-telling by a minstrel. in the summer there were outdoor games and tournaments. hunting with hounds or hawks was popular with both ladies and gentlemen. the king would go to bed on a feather mattress with fur coverlet that was surrounded by linen hangings. his grooms would sleep on trundle beds in the same room. the queen likewise shared her bedchamber with several of her ladies sleeping on trundle beds. breakfast was comprised of a piece of bread and a cup of wine taken after the daily morning mass in one of the chapels. sometimes a round and deep tub was brought into the bedchamber by servants who poured hot water onto the bather in the tub. baths were often taken in the times of henry iii, who believed in cleanliness and sanitation. henry iii was also noted for his luxurious tastes. he had a linen table cloth, goblets of mounted cocoa-nut, a glass cup set in crystal, and silk and velvet mattresses, cushions, and bolster. he had many rooms painted with gold stars, green and red lions, and painted flowers. to his sister on her marriage, he gave goldsmith's work, a chess table, chessmen in an ivory box, silver pans and cooking vessels, robes of cloth of gold, embroidered robes, robes of scarlet, blue, and green fine linen, genoese cloth of gold, two napkins, and thirteen towels. in the king's 1235 grant to oxford, the mayor and good men were authorized to take weekly for three years 1/2 d. on every cart entering the town loaded with goods, if it was from the county, or 1d. if it came from outside the county; 1/4 d. for every horse load, except for brushwood; 1/2 d. on every horse, mare, ox, or cow brought to sell; and 1/2 d. for every five sheep, goats, or pigs. english ships had one mast with a square sail. the hulls were made of planks overlapping each other. there was a high fore castle [tower] on the bow, a top castle on the mast, and a high stern castle from which to shoot arrows down on other ships. there were no rowing oars, but steering was still by an oar on the starboard side of the ship. the usual carrying capacity was 30 tuns [big casks of wine each with about 250 gallons]. on the coasts there were lights and beacons. harbors at river mouths were kept from silting up. ships were loaded from piers. the construction of london bridge had just been finished. bricks began to be imported for building. about 10% of the population lived in towns. churches had stained glass windows. newcastle-on-tyne received these new rights: 1. and that they shall justly have their lands and tenures and mortgages and debts, whoever owes them to them. 2. concerning their lands and tenures within the town, right shall be done to them according to the custom of the city winton. 3. and of all their debts which are lent in newcastle-on-tyne and of mortgages there made, pleas shall be held at newcastle-on-tyne. 4. none of them shall plead outside the walls of the city of newcastle-on-tyne on any plea, except pleas of tenures outside the city and except the minters and my ministers. 5. that none of them be distrained by any without the said city for the repayment of any debt to any person for which he is not capital debtor or surety. 6. that the burgesses shall be quit of toll and lastage [duty on a ship's cargo] and pontage [tax for repairing bridges] and have passage back and forth. 7. moreover, for the improvement of the city, i have granted them that they shall be quit of year's gift and of scotale [pressure to buy ale at the sheriff's tavern], so that my sheriff of newcastleon-tyne or any other minister shall not make a scotale. 8. and whosoever shall seek that city with his merchandise, whether foreigners or others, of whatever place they may be, they may come sojourn and depart in my safe peace, on paying the due customs and debts, and any impediment to these rights is prohibited. 9. we have granted them also a merchant guild. 10. and that none of them [in the merchant guild] shall fight by combat. the king no longer lives on his own from income from his own lands, but takes money from the treasury. a tax of a percentage of 1/15th of personal property was levied in 1225 for a war, in return for which the king signed the magna carta. it was to be paid by all tenants-in-chief, men of the royal domain, burgesses of the boroughs and cities, clerical tenants-in-chief, and religious houses. the percentage tax came to be used frequently and ranged from about 1/40th to 1/5th. in 1294, this tax was bifurcated into one percentage amount for the rural districts and a higher one for urban districts, because the burgesses had greater wealth and much of it was hard to uncover because it was in the possession of customers and debtors. it was usually 1/10th for towns and royal domains and 1/15th in the country. this amount of money collected by this tax increased with the wealth of the country. the king takes custody of lands of lunatics and idiots, as well as escheats of land falling by descent to aliens. henry iii took 20s. from his tenants-in-chief for the marriage of his daughter, and two pounds for the knighting of his son. by 1250, the king was hiring soldiers at 2s. per day for knights, and 9d. a day for less heavily armed soldiers, and 6d. a day for cross-bowmen. some castle-guard was done by watchmen hired at 2d. a day. ships were impressed when needed. sometimes private ships were authorized to ravage the french coasts and take what spoil they could. while king henry iii was underage, there was much controversy as to who should be his ministers of state, such as justiciar, chancellor, and treasurer. this led to the concept that they should not be chosen by the king alone. after he came of age, elected men from the baronage fought to have meetings and his small council in several conferences called great councils or parliaments (from french "to speak the mind") to discuss the levying of taxes and the solution of difficult legal cases, the implementation of the magna carta, the appointment of the king's ministers and sheriffs, and the receipt and consideration of petitions. the barons paid 1/30th tax on their moveable property to have three barons of their choice added to the council. statutes were enacted. landholders were given the duty of electing four of their members in every county to ensure that the sheriff observed the law and to report his misdemeanors to the justiciar. they were also given the duty of electing four men from the county from whom the exchequer was to choose the sheriff of the year. earl montfort and certain barons forced king henry iii to summon a great council or parliament in 1265 in which the common people were represented officially by two knights from every county, two burgesses from every borough, and two representatives from each major port. so the king's permanent small council became a separate body from parliament and its members took a specific councilor's oath in 1257 to give faithful counsel, to keep secrecy, to prevent alienation of ancient demesne, to procure justice for the rich and poor, to allow justice to be done on themselves and their friends, to abstain from gifts and misuse of patronage and influence, and to be faithful to the queen and to the heir. the law the barons forced successive kings to sign the magna carta until it became the law of the land. it became the first statute of the official statute book. its provisions express the principle that a king is bound by the law and is not above it. however, there is no redress if the king breaches the law. the magna carta was issued by john in 1215. a revised version was issued by henry iii in 1225 with the forest clauses separated out into a forest charter. the two versions are replicated together, with the formatting of each indicated in the titles below. {magna carta 1215} magna carta 1215 & 1225 magna carta 1225 {john, by the grace of god, king of england, lord of ireland, duke of normandy and aquitaine, and count of anjou: to the archbishops, bishops, abbots, earls, barons, justiciaries, foresters, sheriffs, reeves, ministers, and all bailiffs and others, his faithful subjects, greeting. know ye that in the presence of god, and for the health of our soul, and the souls of our ancestors and heirs, to the honor of god, and the exaltation of holy church, and amendment of our realm, by the advice of our reverend fathers, stephen, archbishop of canterbury, primate of all england, and cardinal of the holy roman church; henry, archbishop of dublin; william of london, peter of winchester, jocelin of bath and glastonbury, hugh of lincoln, walter of worcester, william of coventry, and benedict of rochester, bishops; master pandulph, the pope's subdeacon and familiar; brother aymeric, master of the knights of the temple in england; and the noble persons, william marshall, earl of pembroke; william, earl of salisbury; william, earl of warren; william, earl of arundel; alan de galloway, constable of scotland; warin fitz-gerald, peter fitz-herbert, hubert de burgh, seneshal of poitou, hugh de neville, matthew fitz-herbert, thomas basset, alan basset, philip daubeny, robert de roppelay, john marshall, john fitz-hugh, and others, our liegemen:} henry by the grace of god, king of england, lord of ireland, duke of normandy and guyan and earl of anjou, to all archbishops, bishops, abbots, priors, earls, barons, sheriffs, provosts, officers and to all bailiffs and other our faithful subjects which shall see this present charter, greeting. know ye that we, unto the honor of almighty god, and for the salvation of the souls of our progenitors and successors kings of england, to the advancement of holy church and amendment of our realm, of our mere and free will, have given and granted to all archbishops, bishops, abbots, priors, earls, barons, and to all free men of this our realm, these liberties following, to be kept in our kingdom of england forever. [i. a confirmation of liberties] first, we have granted to god, and by this our present charter confirmed, for us and our heirs forever, that the english church shall be free and enjoy her whole rights and her liberties inviolable. {and that we will this so to be observed appears from the fact that we of our own free will, before the outbreak of the dissensions between us and our barons, granted, confirmed, and procured to be confirmed by pope innocent iii the freedom of elections, which is considered most important and necessary to the english church, which charter we will both keep ourself and will it to be kept with good faith by our heirs forever.} we have also granted to all the free men of our realm, for us and our heirs forever, all the liberties underwritten, to have and to hold to them and their heirs of us and our heirs. [ii. the relief of the king's tenant of full age] if any of our earls, barons, or others who hold of us in chief by knight's service dies, and at the time of his death his heir is of full age and owes to us a relief, he shall have his inheritance on payment of [no more than] the old relief; to wit, the heir or heirs of an earl, for an entire earldom, 100 pounds [2,000s.]; the heir or heirs of a baron of an entire barony, {100 pounds} 100 marks [67 pounds or 1340s.]; the heir or heirs of an entire knight's fee, 100s. at the most [about 1/3 of a knight's annual income]; and he who owes less shall give less, according to the old custom of fees. [iii. the wardship of an heir within age. the heir a knight] but if the heir of such be under age, his lord shall not have the ward of him, nor of his land, before that he has taken of him homage. if, however, any such heir is under age and in ward, he shall have his inheritance without relief or fine when he comes of age, that is, twenty-one years of age. so that if such an heir not of age is made a knight, yet nevertheless his land shall remain in the keeping of his lord unto the aforesaid term. [iv. no waste shall be made by a guardian in ward's lands] the guardian of the land of any heir thus under age shall take therefrom only reasonable issues, customs, and services, without destruction or waste of men or goods. and if we commit the custody of any such land to the sheriff or any other person answerable to us for the issues of the same land, and he commits destruction or waste, we will take an amends from him and recompense therefore. and the land shall be committed to two lawful and discreet men of that fee, who shall be answerable for the issues of the same land to us or to whomsoever we shall have assigned them. and if we give or sell the custody of any such land to any man, and he commits destruction or waste, he shall lose the custody, which shall be committed to two lawful and discreet men of that fee, who shall, in like manner, be answerable to us as has been aforesaid. [v. guardians shall maintain the inheritance of their wards and of bishopricks, etc.] the guardian, so long as he shall have the custody of the land, shall keep up and maintain the houses, parks, fishponds, pools, mills, and other things pertaining thereto, out of the issues of the same, and shall restore to the heir when he comes of age, all his land stocked with {ploughs and tillage, according as the season may require and the issues of the land can reasonably bear} ploughs and all other things, at the least as he received it. all these things shall be observed in the custodies of vacant archbishopricks, bishopricks, abbeys, priories, churches, and dignities, which appertain to us; except this, that such custody shall not be sold. [vi. heirs shall be married without disparagement] heirs shall be married without loss of station. {and the marriage shall be made known to the heir's nearest of kin before it is agreed.} [vii. a widow shall have her marriage, inheritance, and querentine. the king's widow, etc.] a widow, after the death of her husband, shall immediately and without difficulty have her marriage portion [property given to her by her father] and inheritance. she shall not give anything for her marriage portion, dower, or inheritance which she and her husband held on the day of his death, and she may remain in her husband's house for forty days after his death, within which time her dower shall be assigned to her. if that house is a castle and she leaves the castle, then a competent house shall forthwith be provided for her, in which she may honestly dwell until her dower is assigned to her as aforesaid; and in the meantime her reasonable estovers of the common [necessaries or supplies such as wood], etc. no widow shall be compelled [by penalty of fine] to marry so long as she has a mind to live without a husband, provided, however, that she gives security that she will not marry without our assent, if she holds of us, or that of the lord of whom she holds, if she holds of another. [viii. how sureties shall be charged to the king] neither we nor our bailiffs shall seize any land or rent for any debt as long as the debtor's goods and chattels suffice to pay the debt and the debtor himself is ready to satisfy therefore. nor shall the debtor's sureties be distrained as long as the debtor is able to pay the debt. if the debtor fails to pay, not having the means to pay, or will not pay although able to pay, then the sureties shall answer the debt. and, if they desire, they shall hold the debtor's lands and rents until they have received satisfaction of that which they had paid for him, unless the debtor can show that he has discharged his obligation to them. {if anyone who has borrowed from the jews any sum of money, great or small, dies before the debt has been paid, the heir shall pay no interest on the debt as long as he remains under age, of whomsoever he may hold. if the debt falls into our hands, we will take only the principal sum named in the bond.} {and if any man dies indebted to the jews, his wife shall have her dower and pay nothing of that debt; if the deceased leaves children under age, they shall have necessaries provided for them in keeping with the estate of the deceased, and the debt shall be paid out of the residue, saving the service due to the deceased's feudal lords. so shall it be done with regard to debts owed persons other than jews.} [ix. the liberties of london and other cities and towns confirmed] the city of london shall have all her old liberties and free customs, both by land and water. moreover, we will and grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs. {no scutage or aid shall be imposed in our realm unless by common counsel thereof, except to ransom our person, make our eldest son a knight, and once to marry our eldest daughter, and for these only a reasonable aid shall be levied. so shall it be with regard to aids from the city of london.} {to obtain the common counsel of the realm concerning the assessment of aids (other than in the three aforesaid cases) or of scutage, we will have the archbishops, bishops, abbots, earls, and great barons individually summoned by our letters; we will also have our sheriffs and bailiffs summon generally all those who hold lands directly of us, to meet on a fixed day, but with at least forty days' notice, and at a fixed place. in all such letters of summons, we will explain the reason therefor. after summons has thus been made, the business shall proceed on the day appointed, according to the advice of those who are present, even though not all the persons summoned have come.} {we will not in the future grant permission to any man to levy an aid upon his free men, except to ransom his person, make his eldest son a knight, and once to marry his eldest daughter, and on each of these occasions only a reasonable aid shall be levied.} [x. none shall distrain for more service than is due.] no man shall be compelled to perform more service for a knight's fee nor any freehold than is due therefrom. [xi. common pleas shall not follow the king's court] people who have common pleas shall not follow our court traveling about the realm, but shall be heard in some certain place. [xii. where and before whom assizes shall be taken. adjournment for difficulty] {land assizes of novel disseisin, mort d'ancestor and darrein presentment shall be heard only in the county where the property is situated, and in this manner: we or, if we are not in the realm, our chief justiciary, shall send two justiciaries through each county four times a year [to clear and prevent backlog], and they, together with four knights elected out of each county by the people thereof, shall hold the said assizes in the county court, on the day and in the place where that court meets.} assizes of novel disseisin, mort d'ancestor shall be heard only in the county where the property is situated, and in this manner: we, or if we are not in the realm, our chief justiciary, shall send justiciaries through each county once a year, and they together with knights of that county shall hold the said assizes in the county. {if the said assizes cannot be held on the day appointed, so many of the knights and freeholders as were present on that day shall remain as will be sufficient for the administration of justice, according to the amount of business to be done.} and those things that at the coming of our foresaid justiciaries, being sent to take those assizes in the counties, cannot be determined, shall be ended by them in some other place in their circuit; and those things which for difficulty of some articles cannot be determined by them, shall be referred to our justices of the bench and there shall be ended. [xiii. assizes of darrein presentment] assizes of darrein presentment shall always be taken before our justices of the bench and there shall be determined. [xiv. how men of all sorts shall be amerced and by whom] a freeman shall be amerced [made to pay a fine to the king] for a small offence only according to the degree thereof, and for a serious offence according to its magnitude, saving his position and livelihood; and in like manner a merchant, saving his trade and merchandise, and a villein saving his tillage, if they should fall under our mercy. none of these amercements shall be imposed except by the oath of honest men of the neighborhood. earls and barons shall be amerced only by their peers, and only in accordance with the seriousness of the offense. {no amercement shall be imposed upon a cleric's lay tenement, except in the manner of the other persons aforesaid, and without regard to the value of his ecclesiastical benefice.} no man of the church shall be amerced except in accordance with the seriousness of the offence and after his lay tenement, but not after the quantity of his spiritual benefice. [xv. making of bridges and banks] no town or freeman shall be compelled to build bridges over rivers or banks except those bound by old custom and law to do so. [xvi. defending of banks] no banks [land near a river] shall be defended [used by the king alone, e.g. for hunting], from henceforth, but such as were in defence in the time of king henry [ii] our grandfather, by the same places and in the same bounds as in his time. [xvii. holding pleas of the crown] no sheriff, constable, coroners, or other of our bailiffs shall hold pleas of our crown [but only justiciars, to prevent disparity of punishments and corruption]. {all counties, hundreds, wapentakes, and tithings (except our demesne manors) shall remain at the old rents, without any increase.} [xviii. the king's debtor dying, the king shall be first paid] if anyone holding a lay fee of us dies, and our sheriff or our bailiff show our letters patent [public letter from a sovereign or one in authority] of summons for a debt due to us from the deceased, it shall be lawful for such sheriff or bailiff to attach and list the goods and chattels of the deceased found in the lay fee to the value of that debt, by the sight and testimony of lawful men [to prevent taking too much], so that nothing thereof shall be removed therefrom until our whole debt is paid; then the residue shall be given up to the executors to carry out the will of the deceased. if there is no debt due from him to us, all his chattels shall remain the property of the deceased, saving to his wife and children their reasonable shares. {if any freeman dies intestate, his chattels shall be distributed by his nearest kinfolk and friends, under supervision of the church, saving to each creditor the debts owed him by the deceased.} [xix. purveyance for a castle] no constable or other of our bailiffs shall take grain or other chattels of any man without immediate payment, unless the seller voluntarily consents to postponement of payment. this applies if the man is not of the town where the castle is. but if the man is of the same town as where the castle is, the price shall be paid to him within 40 days. [xx. doing of castle-guard] no constable shall compel any knight to give money for keeping of his castle in lieu of castle-guard when the knight is willing to perform it in person or, if reasonable cause prevents him from performing it himself, by some other fit man. further, if we lead or send him into military service, he shall be excused from castle-guard for the time he remains in service by our command. [xxi. taking of horses, carts, and wood] no sheriff or bailiff of ours, or any other man, shall take horses or carts of any freeman for carriage without the owner's consent. he shall pay the old price, that is, for carriage with two horses, 10d. a day; for three horses, 14d. a day. no demesne cart of any spiritual person or knight or any lord shall be taken by our bailiffs. neither we nor our bailiffs will take another man's wood for our castles or for other of our necessaries without the owner's consent. [xxii. how long felons' lands shall be held by the king] we will hold the lands of persons convicted of felony for only a year and a day [to remove the chattels and movables], after which they shall be restored to the lords of the fees. [xxiii. in what place weirs shall be removed] all fishweirs [obstructing navigation] shall be entirely removed by the thames and medway rivers, and throughout england, except upon the seacoast. [xxiv. in what case a praecipe in capite is not grantable] the [royal] writ called "praecipe in capite" [for tenements held in chief of the crown] shall not in the future be granted to anyone respecting any freehold if thereby a freeman [who has a mesne lord] may not be tried in his lord's court. [xxv. there shall be but one measure throughout the realm] there shall be one measure of wine throughout our realm, one measure of ale, and one measure of grain, to wit, the london quarter, and one breadth of dyed cloth, russets, and haberjets, to wit, two {ells} yards within the selvages. as with measures so shall it also be with weights. [xxvi. inquisition of life and limb] henceforth nothing shall be given or taken for a writ of inquisition upon life or limb, but it shall be granted freely and not denied. [xxvii. tenure of the king in socage and of another by knight's service. petit serjeanty.] if anyone holds of us by fee farm, socage, or burgage, and also holds land of another by knight's service, we will not by reason of that fee farm, socage, or burgage have the wardship of his heir, or the land which belongs to another man's fee. nor will we have the custody of such fee farm, socage, or burgage unless such fee farm owe knight's service. we will not have the wardship of any man's heir, or the land which he holds of another by knight's service, by reason of any petty serjeanty which he holds of us by service of rendering us knives, arrows, or the like. [xxviii. wages of law shall not be without witness] in the future no [royal] bailiff shall upon his own unsupported accusation put any man to trial or oath without producing credible witnesses to the truth of the accusation. [xxix. none shall be condemned without trial. justice shall not be sold or delayed.] no freeman shall be taken, imprisoned, disseised of his freehold or liberties or free customs, or be outlawed, banished, or in any way ruined, nor will we prosecute or condemn him, except by the lawful judgment of his peers or by the law of the land. to no one will we sell [by bribery], to none will we deny or delay, right or justice. [xxx. merchant strangers coming into this realm shall be well used] all merchants shall have safe conduct to go and come out of and into england, and to stay in and travel through england by land and water, to buy and sell, without evil tolls, in accordance with old and just customs, except, in time of war, such merchants as are of a country at war with us. if any such be found in our realm at the outbreak of war, they shall be detained, without harm to their bodies or goods, until it be known to us or our chief justiciary how our merchants are being treated in the country at war with us. and if our merchants are safe there, then theirs shall be safe with us. {henceforth anyone, saving his allegiance due to us, may leave our realm and return safely and securely by land and water, except for a short period in time of war, for the common benefit of the realm.} [xxxi. tenure of a barony coming into the king's hands by escheat] if anyone dies holding of any escheat, such as the honor of wallingford, nottingham, boulogne, {lancaster,} or other escheats which are in our hands and are baronies, his heir shall not give any relief or do any service to us other than he would owe to the baron, if such barony had been in the baron's hands. and we will hold the escheat in the same manner in which the baron held it. nor shall we have, by occasion of any barony or escheat, any escheat or keeping of any of our men, unless he who held the barony or escheat elsewhere held of us in chief. persons dwelling outside the forest [in the county] need not in the future come before our justiciaries of the forest in answer to a general summons unless they are impleaded or are sureties for any person or persons attached for breach of forest laws. [xxxii. lands shall not be aliened to the prejudice of the lord's service] no freeman from henceforth shall give or sell any more of his land, but so that of the residue of the lands the lord of the fee may have the service due to him which belongs to the fee. {we will appoint as justiciaries, constables, sheriffs, or bailiffs only such men as know the law of the land and will keep it well.} [xxxiii. patrons of abbeys shall have the custody of them when vacant] all barons who had founded abbeys of which they have charters of english kings or old tenure, shall have the custody of the same when vacant, as is their due. all forests which have been created in our time shall forthwith be disafforested. {so shall it be done with regard to river banks which have been enclosed by fences in our time.} {all evil customs concerning forests and warrens [livestock grounds in forests], foresters and warreners, sheriffs and their officers, or riverbanks and their conservators shall be immediately investigated in each county by twelve sworn knights of such county, who are chosen by honest men of that county, and shall within forty days after this inquest be completely and irrevocably abolished, provided always that the matter has first been brought to our knowledge, or that of our justiciars, if we are not in england.} {we will immediately return all hostages and charters delivered to us by englishmen as security for the peace or for the performance of loyal service.} {we will entirely remove from their offices the kinsmen of gerald de athyes, so that henceforth they shall hold no office in england: engelard de cigogne, peter, guy, and andrew de chanceaux, guy de cigogne, geoffrey de martigny and his brothers, philip mark and his brothers, and geoffrey his nephew, and all their followers.} {as soon as peace is restored, we will banish from our realm all foreign knights, crossbowmen, sergeants, and mercenaries, who have come with horses and arms, to the hurt of the realm.} {if anyone has been disseised or deprived by us, without the legal judgment of his peers, of lands, castles, liberties, or rights, we will immediately restore the same, and if any disagreement arises on this, the matter shall be decided by judgment of the twentyfive barons mentioned below in the clause for securing the peace. with regard to all those things, however, of which any man was disseised or deprived, without the legal judgment of his peers, by king henry [ii] our father or our brother king richard, and which remain in our hands or are held by others under our warranty, we shall have respite during the term commonly allowed to the crusaders, excepting those cases in which a plea was begun or inquest made on our order before we took the cross; when, however, we return from our pilgrimage, or if perhaps we do not undertake it, we will at once do full justice in these matters.} {likewise, we shall have the same respite in rendering justice with respect to the disafforestation or retention of those forests which henry [ii] our father or richard our brother afforested, and concerning custodies of lands which are of the fee of another, which we hitherto have held by reason of the fee which some person has held of us by knight's service, and to abbeys founded on fees other than our own, in which the lord of that fee asserts his right. when we return from our pilgrimage, or if we do not undertake it, we will forthwith do full justice to the complainants in these matters.} [xxxiv. in what only case a woman shall have an appeal of death] no one shall be arrested or imprisoned upon a woman's appeal for the death of any person other than her husband [since no woman was expected to personally engage in trial by combat]. [xxxv. at what time shall be kept a county court, sheriff's turn and a leet court (court of criminal jurisdiction excepting felonies)] no county court from henceforth shall be held, but from month to month; and where greater time has been used, there shall be greater. nor shall any sheriff, or his bailiff, keep his turn in the hundred but twice in the year; and no where but in due place and accustomed time, that is, once after easter, and again after the feast of saint michael. and the view of frankpledge [the right of assembling the whole male population over 12 years except clergy, earls, barons, knights, and the infirm, at the leet or soke court for the capital frankpledges to give account of the peace kept by individuals in their respective tithings] shall be likewise at the feast of saint michael without occasion, so that every man may have his liberties which he had, or used to have, in the time of king henry [ii] our grandfather, or which he has since purchased. the view of frankpledge shall be so done, that our peace may be kept; and that the tything be wholly kept as it has been accustomed; and that the sheriff seek no occasions, and that he be content with so much as the sheriff was wont to have for his view-making in the time of king henry our grandfather. [xxxvi. no land shall be given in mortmain] it shall not be lawful from henceforth to any to give his land to any religious house, and to take the same land again to hold of the same house [thereby extinguishing the feudal rights of the temporal lord]. nor shall it be lawful to any house of religion to take the lands of any, and to lease the same to him of whom he received it. if any from henceforth give his lands to any religious house, and thereupon be convicted, the gift shall be utterly void, and the land shall accrue to the lord of the fee. {all fines unjustly and unlawfully given to us, and all amercements levied unjustly and against the law of the land, shall be entirely remitted or the matter decided by judgment of the twenty-five barons mentioned below in the clause for securing the peace, or the majority of them, together with the aforesaid stephen, archbishop of canterbury, if he himself can be present, and any others whom he may wish to bring with him for the purpose; if he cannot be present, the business shall nevertheless proceed without him. if any one or more of the said twenty-five barons has an interest in a suit of this kind, he or they shall step down for this particular judgment, and be replaced by another or others, elected and sworn by the rest of the said barons, for this occasion only.} {if we have disseised or deprived the welsh of lands, liberties, or other things, without legal judgment of their peers, in england or wales, they shall immediately be restored to them, and if a disagreement arises thereon, the question shall be determined in the marches by judgment of their peers according to the law of england as to english tenements, the law of wales as to welsh tenements, the law of the marches as to tenements in the marches. the same shall the welsh do to us and ours.} {but with regard to all those things of which any welshman was disseised or deprived, without legal judgment of his peers, by king henry [ii] our father or our brother king richard, and which we hold in our hands or others hold under our warranty, we shall have respite during the term commonly allowed to the crusaders, except as to those matters whereon a suit had arisen or an inquisition had been taken by our command prior to our taking the cross. immediately after our return from our pilgrimage, or if by chance we do not undertake it, we will do full justice according to the laws of the welsh and the aforesaid regions.} {we will immediately return the son of llywelyn, all the welsh hostages, and the charters which were delivered to us as security for the peace.} {with regard to the return of the sisters and hostages of alexander, king of the scots, and of his liberties and rights, we will do the same as we would with regard to our other barons of england, unless it appears by the charters which we hold of william his father, late king of the scots, that it ought to be otherwise; this shall be determined by judgment of his peers in our court.} [xxxvii. subsidy in respect of this charter, and the charter of the forest, granted to the king.] escuage [shield military service] from henceforth shall be taken as it was wont to be in the time of king henry [ii] our grandfather; reserving to all archbishops, bishops, abbots, priors, templers, hospitallers, earls, barons, and all persons as well spiritual as temporal; all their free liberties and free customs, which they have had in time passed. and all these customs and liberties aforesaid, which we have granted to be held within this our realm, as much as pertains to us and our heirs, we shall observe. {all the customs and liberties aforesaid, which we have granted to be enjoyed, as far as it pertains to us towards our people throughout our realm, let all our subjects, whether clerics or laymen, observe, as far as it pertains toward their dependents.} and all men of this our realm, as well spiritual as temporal (as much as in them is) shall observe the same against all persons in like wise. and for this our gift and grant of these liberties, and of other constrained in our charter of liberties of our forest, the archbishops, bishops, abbots, priors, earls, barons, knights, freeholders, and our other subjects, have given unto us the fifteenth part of all their moveables. and we have granted unto them on the other part, that neither we, nor our heirs, shall procure or do any thing whereby the liberties in this charter contained shall be infringed or broken. and if any thing be procured by any person contrary to the premises, it shall be had of no force nor effect. [enforcement] {whereas we, for the honor of god and the reform of our realm, and in order the better to allay the discord arisen between us and our barons, have granted all these things aforesaid. we, willing that they be forever enjoyed wholly and in lasting strength, do give and grant to our subjects the following security, to wit, that the barons shall elect any twenty-five barons of the realm they wish, who shall, with their utmost power, keep, hold, and cause to be kept the peace and liberties which we have granted unto them and by this our present charter have confirmed, so that if we, our justiciary, bailiffs, or any of our ministers offends in any respect against any man, or transgresses any of these articles of peace or security, and the offense is brought before four of the said twenty-five barons, those four barons shall come before us, or our chief justiciary if we are out of the realm, declaring the offense, and shall demand speedy amends for the same. if we or, in case of our being out of the realm, our chief justiciary fails to afford redress within forty days from the time the case was brought before us or, in the event of our having been out of the realm, our chief justiciary, the aforesaid four barons shall refer the matter to the rest of the twenty-five barons, who, together with the commonalty of the whole country, shall distrain and distress us to the utmost of their power, to wit, by capture of our castles, lands, and possessions and by all other possible means, until compensation is made according to their decision, saving our person and that of our queen and children; as soon as redress has been had, they shall return to their former allegiance. anyone in the realm may take oath that, for the accomplishment of all the aforesaid matters, he will obey the orders of the said twenty-five barons and distress us to the utmost of his power; and we give public and free leave to everyone wishing to take oath to do so, and to none will we deny the same. moreover, all such of our subjects who do not of their own free will and accord agree to swear to the said twenty-five barons, to distrain and distress us together with them, we will compel to do so by our command in the aforesaid manner. if any one of the twenty-five barons dies or leaves the country or is in any way hindered from executing the said office, the rest of the said twenty-five barons shall choose another in his stead, at their discretion, who shall be sworn in like manner as the others. in all cases which are referred to the said twenty-five barons to execute, and in which a difference arises among them, supposing them all to be present, or in which not all who have been summoned are willing or able to appear, the verdict of the majority shall be considered as firm and binding as if the whole number had been of one mind. the aforesaid twenty-five shall swear to keep faithfully all the aforesaid articles and, to the best of their power, to cause them to be kept by others. we will not procure, either by ourself or any other, anything from any man whereby any of these concessions or liberties may be revoked or abated. if any such procurement is made, let it be null and void; it shall never be made use of either by us or by any other.} [amnesty] {we have also fully forgiven and pardoned all ill-will, wrath, and malice which has arisen between us and our subjects, both clergy and laymen, during the disputes, to and with all men. moreover, we have fully forgiven and, as far as it pertains to us, wholly pardoned to and with all, clergy and laymen, all offences made in consequence of the said disputes from easter in the sixteenth year of our reign until the restoration of peace. over and above this, we have caused letters patent to be made for stephen, archbishop of canterbury, henry, archbishop of dublin, the above-mentioned bishops, and master pandulph, for the aforesaid security and concessions.} {wherefore we will that, and firmly command that, the english church shall be free and all men in our realm shall have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely, quietly, fully, and wholly, to them and their heirs, of us and our heirs, in all things and places forever, as is aforesaid. it is moreover sworn, as will on our part as on the part of the barons, that all these matters aforesaid shall be kept in good faith and without deceit. witness the above-named and many others. given by our hand in the meadow which is called runnymede, between windsor and staines, on the fifteenth day of june in the seventeenth year of our reign.} these being witnesses: lord s. archbishop of canterbury, e. bishop of london, f. bishop of bathe, g. of wincester, h. of lincoln, r. of salisbury, w. of rochester, x. of worcester, f. of ely, h. of hereford, r. of chichester, w. of exeter, bishops; the abbot of st. edmonds, the abbot of st. albans, the abbot of bello, the abbot of st. augustines in canterbury, the abbot of evesham, the abbot of westminster, the abbot of bourgh st. peter, the abbot of reding, the abbot of abindon, the abbot of malmbury, the abbot of winchcomb, the abbot of hyde, the abbot of certesey, the abbot of sherburn, the abbot of cerne, the abbot of abborebir, the abbot of middleton, the abbot of seleby, the abbot of cirencester, h. de burgh justice, h. earl of chester and lincoln, w. earl of salisbury, w. earl of warren, g. de clare earl of gloucester and hereford, w. de ferrars earl of derby, w. de mandeville earl of essex, h. de bygod earl of norfolk, w. earl of albemarle, h. earl of hereford, f. constable of chester, g. de tos, h. fitzwalter, r. de byponte, w. de bruer, r. de montefichet, p. fitzherbert, w. de aubenie, f. gresly, f. de breus, f. de monemue, f. fitzallen, h. de mortimer, w. de beuchamp, w. de st. john, p. de mauli, brian de lisle, thomas de multon, r. de argenteyn, g. de nevil, w. de mauduit, f. de balun, and others. given at westminster the 11th day of february the 9th year of our reign. we, ratifying and approving these gifts and grants aforesaid, confirm and make strong all the same for us and our heirs perpetually, and by the tenour of these presents, do renew the same; willing and granting for us and our heirs, that this charter, and all singular his articles, forever shall be stedfastly, firmly, and inviolably observed; and if any article in the same charter contained, yet hitherto peradventure has not been kept, we will, and by royal authority, command, from henceforth firmly they be observed. statutes which were enacted after the magna carta follow: nuisance is recognized by this statute: "every freeman, without danger, shall make in his own wood, or in his land, or in his water, which he has within our forest, mills, springs, pools, clay pits, dikes, or arable ground, so that it does not annoy any of his neighbors." anyone taking a widow's dower after her husband's death must not only return the dower, but pay damages in the amount of the value of the dower from the time of death of the husband until her recovery of seisin. widows may bequeath the crop of their ground as well of their dowers as of their other lands and tenements. freeholders of tenements on manors shall have sufficient ingress and egress from their tenements to the common pasture and as much pasture as suffices for their tenements. "grain shall not be taken under the pretense of borrowing or the promise of after-payment without the permission of the owner." "a parent or other who forcefully leads away and withholds, or marries off, an heir who is a minor (under 14), shall yield the value of the marriage and be imprisoned until he has satisfied the king for the trespass. if an heir 14 years or older marries without his lord's permission to defraud him of the marriage and the lord offers him reasonable and convenient marriage, without disparagement, then the lord shall hold his land beyond the term of his age, that, of twenty one years, so long that he may receive double the value of the marriage as estimated by lawful men, or after as it has been offered before without fraud or collusion, and after as it may be proved in the king's court. any lord who marries off a ward of his who is a minor and cannot consent to marriage, to a villain or other, such as a burgess, whereby the ward is disparaged, shall lose the wardship and all its profits if the ward's friends complain of the lord. the wardship and profit shall be converted to the use of the heir, for the shame done to him, after the disposition and provision of his friends." (the "marriage" could be annulled by the church.) "if an heir of whatever age will not marry at the request of his lord, he shall not be compelled thereunto; but when he comes of age, he shall pay to his lord the value of the marriage before receiving his land, whether or not he himself marries." "interest shall not run against any minor, from the time of death of his ancestor until his lawful age; so nevertheless, that the payment of the principal debt, with the interest that was before the death of his ancestor shall not remain." the value of debts to be repaid to the king or to any man shall be reasonably determined by the debtor's neighbors and not by strangers. a debtors' plough cattle or sheep cannot be taken to satisfy a debt. the wards and escheats of the king shall be surveyed yearly by three people assigned by the king. the sheriffs, by their counsel, shall approve and let to farm such wards and escheats as they think most profitable for the king. the sheriffs shall be answerable for the issues thereof in the exchequer at designated times. the collectors of the customs on wool exports shall pay this money at the two designated times and shall make yearly accounts of all parcels in ports and all ships. by statute leap year was standardized throughout the nation, "the day increasing in the leap year shall be accounted in that year", "but it shall be taken and reckoned in the same month wherein it grew and that day and the preceding day shall be counted as one day." "an english penny, called a sterling, round and without any clipping, shall weigh 32 wheat grains dry in the middle of the ear." measurements of distance were standardized to twelve inches to a foot, three feet to a yard, and so forth up to an acre of land. goods which could only be sold by the standard weights and measures (such as ounces, pounds, gallons, bushels) included sacks of wool, leather, skins, ropes, glass, iron, lead, canvas, linen cloth, tallow, spices, confections cheese, herrings, sugar, pepper, cinnamon, nutmeg, wheat, barley, oats, bread, and ale. the prices required for bread and ale were based on the market price for the wheat, barley, and oats from which they were made. the punishment for repeated violations of required measures, weights, or prices of bread and ale by a baker or brewer; selling of spoiled or unwholesome wine, meat, fish by brewers, butchers, or cooks; or a steward or bailiff receiving a bribe was reduced to placement in a pillory with a shaven head so that these men would still be fit for military service and not overcrowd the gaols. forest penalties were changed so that "no man shall lose either life or member [limb] for killing of our deer. but if any man be taken and convicted for taking our venison, he shall make a grievous fine, if he has anything. and if he has nothing to lose, he shall be imprisoned for a year and a day. and after that, if he can find sufficient sureties, he shall be delivered, and, if not, he shall abjure the realm of england." the forest charter provided that: every freeman may allow his pigs to eat in his own wood in the king's forest. he may also drive his pigs through the king's forest and tarry one night within the forest without losing any of his pigs. but people having greyhounds must keep them out of the forest so they don't maim the deer. the forest charter also allowed magnates traveling through the king's forest on the king's command to come to him, to kill one or two deer as long as it was in view of the forester if he was present, or while having a horn blown, so it did not seem to be theft. after a period of civil war, the following statutes were enacted: "all persons, as well of high as of low estate, shall receive justice in the king's court; and none shall take any such revenge or distress by his own authority, without award of our court, although he is damaged or injured, whereby he would have amends of his neighbor either higher or lower." the penalty is a fine according to the trespass. a fraudulent conveyance to a minor or lease for a term of years made to defraud a lord of a wardship shall be void. a lord who maliciously and wrongfully alleges this to a court shall pay damages and costs. if a lord will not render unto an heir his land when he comes of age or takes possession away from an heir of age or removes anything from the land, he shall pay damages. (the king retained the right to take possession of an heir's land for a year or, in lieu of this, to take one year's profit from the land in addition to the relief.) kinsmen of a minor heir who have custody of his land held in socage shall make no waste, sale, nor destruction of the inheritance and shall answer to the heir when he comes of age for the issues of the land, except for the reasonable costs of these guardians. no lord may distrain any of his tenants. no one may drive animals taken by distraint out of the county where they have been taken. "farmers during their terms, shall not make waste, sale, nor exile of house, woods, and men, nor of any thing else belonging to the tenements which they have to farm". church law required that planned marriages be publically announced by the priest so that any impediment could be made known. if a marriage was clandestine or both parties knew of an impediment, or it was within the prohibited degrees of consanguinity, the children would be illegitimate. according to church rules, a man could bequeath his personal property subject to certain family rights. these were that if only the wife survived, she received half the property. similarly, if children survived, but no wife, they received half the property. when the wife and children survived, each party received one third. the church hoped that the remaining fraction would go to the church as a reward for praying for the deceased's soul. it taught that dying without a will was sinful. adults were to confess their sins at least yearly to their parish priest, which confession would be confidential. henry de bracton, a royal justice and the last great ecclesiastical attorney, wrote an unfinished treatise: a tract on the laws and customs of england, systematizing and organizing the law of the court rolls with definitions and general concepts and describing court practice and procedure. it was influenced by his knowledge of roman legal concepts, such as res judicata, and by his own opinions, such as that the law should go from precedent to precedent. he also argued that the will and intent to injure was the essence of murder, so that neither an infant nor a madman should be held liable for such and that degrees of punishment should vary with the level of moral guilt in a killing. he thought the deodand to be unreasonable. bracton defines the requirements of a valid and effective gift as: "it must be complete and absolute, free and uncoerced, extorted neither by fear nor through force. let money or service play no part, lest it fall into the category of purchase and sale, for if money is involved there will then be a sale, and if service, the remuneration for it. if a gift is to be valid the donor must be of full age, for if a minor makes a gift it will be ineffective since (if he so wishes) it shall be returned to him in its entirety when he reaches full age. also let the donor hold in his own name and not another's, otherwise his gift may be revoked. and let him, at the least, be of sound mind and good memory, though an invalid, ill and on his death bed, for a gift make under such conditions will be good if all the other [requirements] of a valid gift are met. for no one, provided he is of good memory, ought to be kept from the administration or disposition of his own property when affected by infirmity, since it is only then that he must make provision for his family, his household and relations, given stipends and settle his bequests; otherwise such persons might suffer damage without fault. but since charters are sometimes fraudulently drawn and gifts falsely taken to be made when they are not, recourse must therefore be had to the country and the neighborhood so that the truth may be declared." in bracton's view, a villein could buy his own freedom and the child of a mixed marriage was free unless he was born in the tenement of his villein parent. judicial procedure the royal court split up into several courts with different specialties and became more like departments of state than offices of the king's household. the justices were career civil servants knowledgeable in the civil and canon law. the court of the king's bench (a marble slab in westminster upon which the throne was placed) traveled with the king and heard criminal cases and pleas of the crown. any use of force, however trivial, was interpreted as breach of the royal peace and could be brought before the king's bench. its records were the coram rege rolls. the title of the chief justiciar of england changed to the chief justice of england. the court of common pleas heard civil cases brought by one subject against another. pursuant to the magna carta, it sat only at one place, the great hall in westminster. it had concurrent jurisdiction with the king's bench over trespass cases. its records were the de banco rolls. the court of the exchequer with its subsidiary department of the treasury was in almost permanent session at westminster, collecting the crown's revenue and enforcing the crown's rights. appeals from these courts could be made to the king and/or his small council, which was the curia regis and could hear any plea of the land. in 1234, the justiciar as the principal royal executive officers and chief presiding officer over the curia regis ended. in 1268, a chief justiciar was appointed the hold pleas before the king. henceforth, a justiciar was a royal officer who dealt only with judicial work. about the same time the presiding justice of the court of common pleas also came to be styled justiciar or chief justice. justices were no longer statesmen or politicians, but simply men learned in the law. membership in or attendance at the great council or parliament no longer rested upon feudal tenure, but upon a writ of summons which was, to a degree, dependent on the royal will. crown pleas included issues of the king's property, fines due to him, murder (a body found with no witnesses to a killing), homicide (a killing for which there were witnesses), rape, wounding, mayhem, consorting, larceny, robbery, burglary, arson, poaching, unjust imprisonment, selling cloth by non-standard widths, selling wine by non-standard weights. crown causes were pled by the king's serjeants or servants at law, who were not clerics. apprentices at law learned pleading from them. between the proprietary action and the possessory assizes there is growing use in the king's courts of writs of entry, by which a tenant may be ordered to give up land, e.g. by a recent flaw in a tenant's title, for a term which has expired, by a widow for her late husband's land, or by an heir who has become of full age from his guardian. for instance: " ...command tertius that ... he render to claimant, who is of full age, as it is said, ten acres ...which he claims to be his right and inheritance and into which the said tertius has no entry save by secundus, to whom primus demised [gaged] them, who had only the wardship thereof while the aforesaid claimant was under age, as he says...". but most litigation about land is still through the writ of right for proprietary issues and the assizes of novel disseisin and mort d'ancestor for possessory issues. royal itinerant justices traveled to the counties every seven years. there, they gave interrogatories to local assizes of twelve men to determine what had happened there since the last eyre. all boroughs had to send twelve burgesses who were to indict any burgesses suspected of breaking the royal law. every crime, every invasion of royal rights, and every neglect of police duties was to be presented and tried. suspects were held in gaol until their cases could be heard and gaol breaks were common. punishment after trial was prison for serious crimes, expulsion from the realm for less serious crimes, and pledges for good behavior for lesser crimes. the visitation of these justices was anticipated with trepidation. in 1237, the residents of cornwall hid in the woods rather than face the itinerant justices. royal coroners held inquests on all sudden deaths to determine whether they were accidental or not. if not, royal justices held trial. they also had duties in treasure trove and shipwreck cases. justices of assize, justices of the peace, and itinerant justices operated at the county level. the traditional county courts had lost much jurisdiction to the royal courts and were now limited to personal actions in causes involving usually no more than 40s. there were pleas of trespass and debt, unjust seizure and detention of beasts, rent collection, claims of fugitive villeins and their goods, nuisances, and encroachments. the sheriff still constitutes and conducts the court. the county court met every three or four weeks, usually in the sheriff's castle located in the chief borough of the county, but some met in the open air. twice a year the sheriff visited each hundred in the county to hold a turn [court for small offenses, such as encroachment of public land, brewing and baking contrary to government regulations, and use of dishonest weights and measures.]. everyone who held freehold land in the hundred except the greater magnates had to attend or be fined for absence. the sheriff annually viewed frankpledge, in which every layman without land that could be forfeited for felony, including villeins, were checked for being in a tithing, a group of neighbors responsible for each other's good conduct. this applied to every boy who had reached the age of twelve. he had to swear on the bible "i will be a lawful man and bear loyalty to our lord the king and his heirs, and i will be justicable to my chief tithing man, so help me god and the saints." each tithing man paid a penny to the sheriff. the hundred court decided cases of theft, viewing of boundaries of land, claims for tenurial services, claims for homage, relief, and for wardship; enfeoffments made, battery and brawls not amounting to felony, wounding and maiming of beasts, collection of debts, trespass, detinue [detention of personal property which originally was rightfully acquired] and covenant, which now requires a sealed writing; defamation, and enquiries and presentments arising from the assizes of bread and ale and measures. a paid bailiff had responsibility for the hundred court, which met every three weeks. still in existence is the old self-help law of hamsocne, the thief hand-habbende, the thief back-berend, the old summary procedure where the thief is caught in the act, aethelstan's laws, edward the confessor's laws, and kent's childwyte [fine for begetting a bastard on a lord's female bond slave]. under the name of "actio furti" [appeal of larceny] is the old process by which a thief can be pursued and goods vindicated. as before and for centuries later, deodands were forfeited to the king to appease god's wrath. these chattel which caused the death of a person were usually carts, cart teams, horses, boats, or mill-wheels. then they were forfeited to the community, which paid the king their worth. sometimes the justices named the charitable purpose for which the deodand was to be spent, such as the price of a boat to go to the repair of a bridge. five cases with short summaries are: case: "john croc was drowned from his horse and cart in the water of bickney. judgment: misadventur. the price of the horse and cart is 4s.6d. 4s.6d. deodand." case: "willam ruffus was crushed to death by a certain trunk. the price of the trunk is 4d., for which the sheriff is to answer. 4d. deodand." case: "william le hauck killed edric le poter and fled, so he is to be exacted and outlawed. he was in the tithing of reynold horloc in clandon of the abbot of chertsey (west clandon), so it is in mercy. his chattels were 4 s., for which the bailiff of the abbot of chertsey is to answer." case: "richard de bregsells, accused of larceny, comes and denies the whole and puts himself on the country for good or ill. the twelve jurors and four vills say that he is not guilty, so he is quit." case: william le wimpler and william vintner sold wine contrary to the statute, so they are in mercy. other cases dealt with issues of entry, e.g. whether land was conveyed or just rented; issues of whether a man was free, for which his lineage was examined; issues of to which lord a villein belonged; issues of nuisance such as making or destroying a bank, ditch, or hedge; diverting a watercourse or damming it to make a pool; obstructing a road, and issues of what grazing rights were conveyed in pasture land, waste, woods, or arable fields between harvest and sowing. grazing right disputes usually arose from the ambiguous language in the grant of land "with appurtenances". courts awarded specific relief as well as money damages. if a landlord broke his covenant to lease land for a term of years, the court restored possession to the lessee. if a lord did not perform the services due to his superior lord, the court ordered him to perform the services. the courts also ordered repair by a lessee. debts of country knights and freeholders were heard in the local courts; debts of merchants and burgesses were heard in the courts of the fairs and boroughs; debts due under wills and testaments were heard in the ecclesiastical courts. the ecclesiastical courts deemed marriage to legitimize bastard children whose parents married, so they inherited personal property and money of their parents. proof was by compurgation. church law required excommunication to be in writing with the reasons therefore, and a copy given to the excommunicant. a church judge was required to employ a notary or two men to write down all acts of the judge and to give a copy to the parties to protect against unjust judges. no cleric was allowed to pronounce or execute a sentence of death or to take part in judicial tests or ordeals. anyone knowingly accepting a stolen article was required to restore it to its owner. heretics were to be excommunicated. trial by combat is still available, although it is extremely rare for it to actually take place. the manor court imposed penalties on those who did not perform their services to the manor and the lord wrote down the customs of the manor for future use in other courts. by statute, no fines could be taken of any man for fair pleading in the circuit of justiciars, county, hundred, or manor courts. various statutes relaxed the requirements for attendance at court of those who were not involved in a case as long as there were enough to make the inquests fully. and "every freeman who owes suit to the county, tything, hundred, and wapentake, or to the court of his lord, may freely make his attorney attend for him." all above the rank of knight were exempted from attendance on the sheriff's turn, unless specifically summoned. prelates and barons were generally excepted from the county courts by the charters of their estates. charters of boroughs often excepted their representatives at the county court when there were no justices. some barons and knights paid the sheriff to be excused. the king often relieved the simple knights by special license. there was frequently a problem of not having enough knights to hold the assizes. henry iii excused the attendance at hundred courts of all but those who were bound to special service, or who were concerned in suits. trespass has become a writ of course in the common law. it still involves violence, but its element of breach of the peace extends to those breaches which do not amount to felony. it can include assault and battery, physical force to land, and physical force to chattels, e.g. assaulting and beating the plaintiff, breaking into his close, or carrying off his goods. one found guilty is fined and imprisoned. as in criminal matters, if a defendant does not appear at court, his body can be seized and imprisoned, and if he cannot be found, he may be outlawed. trespass to goods results in damages, rather than the return of the goods, for goods carried off from the plaintiff's possession and can be brought by bailees. in chancery, the court of the chancellor, if there is a case with no remedy specified in the law, that is similar to a situation for which there is a writ, then a new writ may be made for that case. (by this will later be expanded the action of trespass called "trespass on the case".) various cases from the manors of the abbey of bec in 1248-1249 are: 1. ragenilda of bec gives 2s. for having married without licence. pledge, william of pinner. the same ragenilda demands against roger loft and juliana his wife a certain messuage which belonged to robert le beck, and a jury of twelve lawful men is granted her in consideration of the said fine, and if she recovers seisin she will give in all 5s. and twelve jurors are elected, to wit, john of hulle, william maureward, robert hale walter but, walter sigar, william brihtwin, richard horseman, richard leofred, william john's son, hugh cross, richard pontfret and robert croyser, john bisuthe and gilbert bisuthe who are sworn. and they say that the said ragenilda has the greater right. therefore let her have seisin. ruislip [middlesex]. saturday after the purification of the blessed virgin. 2. richard guest gives 12d. and if he recovers will give 2s. to have a jury of twelve lawful men as to whether he has the greater right in a certain headland at eastcot which ragenilda widow of william andrews holds, or the said ragenilda. pledges for the fine, john brook and richard of pinner. and the said ragenilda comes and says that she has no power to bring that land into judgment because she has no right in it save by reason of the wardship of the son and heir of her husband, who is under age. and richard is not able to deny this. therefore let him await [the heir's] full age. 3. walter hulle gives 13s.4d. for licence to dwell on the land of the prior of harmondsworth so long as he shall live and as a condition finds pledges, to wit, william slipper, john bisuthe, gilbert bisuthe, hugh tree, william john's son, john hulle, who undertake that the said walter shall do to the lord all the services and customs which he would do if he dwelt on the lord's land and that his heriot shall be secured to the lord in case he dies there [i.e. at harmondsworth]. 4. geoffrey sweyn demands the moiety of one virgate of land which john crisp and alina hele hold, and he gives 2s. to have a jury, and if he recovers will give 20s. and the said jurors come and say upon their oath that the said geoffrey has no right in the said land. therefore let the said tenants go thence without day and let the said geoffrey pay 2s. pledges, hugh bussel and godfrey francis. 5. juliana saer's daughter demands as her right the moiety of one messuage with a croft, which messuage william snell and goda his wife, sister of the said juliana hold. and they have made accord by leave [of the court] to the effect that the said william and goda give to the said juliana a barn and the curtilage nearest the green and two selions [a ridge of land between two furrows] in the western part of the said croft [a small enclosed field]. and the said william put himself in mercy. fine, 12d. 6. hugh of stanbridge complains of gilbert vicar's son and william of stanbridge that the wife of the said gilbert who is of [gilbert's] mainpast and the said william unjustly etc. beat and unlawfully struck him and dragged him by his hair out of his own proper house, to his damage 40s. and to his dishonour 20s., and [of this] he produces suit. and gilbert and william come and defend all of it fully. therefore let each of them go to his law six-handed. afterwards they make accord to this effect that in case the said hugh shall hereafter in any manner offend against [gilbert and william] and thereof shall be convicted he will give the lord 6s.8d. by way of penalty and will make amends to [gilbert and william] according to the judgment of six lawful men, and the others on their part will do the like by him. and hugh put himself in mercy. fine, 3s. pledges, john tailor and walter brother. 7. breakers of the assize [of beer:] william idle (fined 6d.), maud carter's widow (6d.), walter carter. 8. john witriche in mercy for carrying off thorns. fine, 6d. 9. robert dochi in mercy (fine, 2d.) for divers trespasses. pledges, gilbert priest's son, ralph winbold and walter green. 10. ailwin crisp in mercy for his cow caught in the lord's pasture when ward had been made. fine, 12d. 11. john bernard in mercy for his beasts caught by night in the lord's meadow. fine, 2s. 12. richard love gives 12d. to have a jury of twelve touching a rod of land which robert of brockhole and juliana his wife hold. this action is respited to the next court [when the jurors are to come] without further delay. afterwards the jurors come and say upon their oath that the said richard has the greater right in the said land. therefore let him have seisin. 13. william blackbeard in mercy for not coming with his law as he was bound to do. pledges, geoffrey of wick and geoffrey payn. fine, 6d. 14. it was presented that stephen shepherd by night struck his sister with a knife and grievously wounded her. therefore let him be committed to prison. afterwards he made fine with 2s. pledge, geoffrey of wick. 15. it was presented that robert carter's son by night invaded the house of peter burgess and in felony threw stones at his door so that the said peter raised the hue. therefore let the said robert be committed to prison. afterwards he made fine with 2s. 16. nicholas drye, henry le notte (fine, 12d.) and thomas hogue (fine, 12d.) were convicted for that they by night invaded the house of sir thomas the chaplain and forcibly expelled thence a man and woman who had been taken in there as guests. therefore they are in mercy. pledges of the said thomas, richard of lortemere and jordan of paris. pledges of the said henry, richard pen... and richard butry. 17. adam moses gives half a sextary of wine to have an inquest as to whether henry ayulf accused him of the crime of larceny and used opprobrious and contumelious words of him. afterwards they made accord and henry finds security for an amercement. fine, 12d. 18. isabella sywards in mercy for having sold to richard bodenham land that she could not warrant him. 19. all the ploughmen of great ogbourne are convicted by the oath of twelve men...because by reason of their default [the land] of the lord was ill ploughed whereby the lord is damaged to the amount of 9s.... and walter reaper is in mercy for concealing [i.e. not giving information as to] the said bad ploughing. afterwards he made fine with the lord with 1 mark. 20. from ralph joce 6s.8d. for his son, because he [the son] unlawfully carried off grain from the lord's court. pledge, geoffrey joce. 21. from henry pink 12d. for a trespass by waylaying. 22. from eve corner 6d. for a trespass of her pigs. 23. from ralph scales 6d. for timber carried off. 24. from william cooper 12d. for ploughing his own land with the lord's plough without licence. 25. from hugh newman 12d. for trespass in the wood. 26. from richard penant 12d. for the same. 27. from helen widow of little ogbourne 6d. for the same. 28. from nicholas siward 6d. for a false complaint against william pafey. 29. from william pafey 12d. for fighting with the said nicholas. 30. from the widow of ralph shepherd 6d. for a trespass in pencombe. 31. richard blund gives a half-mark and if he recovers will give two marks and a half to have a jury of the whole court, to inquire whether he has the greater right in a virgate of land which hugh frith holds in wardship with cristiana daughter of simon white, or the said cristiana. pledges for the fine, richard dene, william hulle, john of senholt, hugh smith, and william ketelburn. and the whole court say upon their oath that the said richard has greater right in the said land than anyone else. therefore let him recover his seisin. 32 ....miller gives 2d. [the latin translates as 4s.] for a trespass against the assize of beer and because the lord's grain has been ill kept at the mill. pledges, john orped and joce serjeant. 33. noah gives 2s. in the same way for an inquest as to one acre. afterwards they submit themselves to arbitrators, who adjudge that the said robert shall pay 3s. to the said roger and 6s. to the said gilbert and 7s. to the said noah, and that he will do so [robert] finds pledges. 34. ralph bar in mercy for having beaten one of the lord's men. pledges, herbert rede and ralph brunild. 35. for the common fine of the township, a half-mark. 36. john boneffiant found pledges, to wit, william smith and william of bledlow, that he will not eloign himself from the lord's land and that he will be prompt to obey the lord's summons. chapter 8 the times: 1272-1348 king edward i was respected by the people for his good government, practical wisdom, and genuine concern for justice for everyone. he loved his people and wanted them to love him. he came to the throne with twenty years experience governing lesser lands on the continent which were given to him by his father henry iii. he spoke latin, english, and french. he gained a reputation as a lawgiver and as a peacemaker in disputes on the continent. his reputation was so high and agreement on him as the next king so strong that england was peaceful in the almost two years that it took him to arrive there from continental business. he was truthful, law-abiding, and kept his word. he had close and solid family relationships, especially with his father and with his wife eleanor, to whom he was faithful. he was loyal to his close circle of good friends. he valued honor and adhered reasonably well to the terms of the treaties he made. he was generous in carrying out the royal custom of subsidizing the feeding of paupers. he visited the sick. he was frugal and dressed in plain, ordinary clothes rather than extravagant or ostentatious ones. he disliked ceremony and display. at his accession, there was a firm foundation of a national law administered by a centralized judicial system, a centralized executive, and an organized system of local government in close touch with both the judicial and the executive system. to gain knowledge of his nation, he sent royal commissioners into every county to ask about any encroachments on the king's rights and about misdeeds by any of the king's officials: sheriffs, bailiffs, or coroners. the results were compiled as the "hundred rolls". they were the basis of reforms which improved justice at the local as well as the national level. they also rationalized the array of jurisdictions that had grown up with feudal government. statutes were passed by a parliament of two houses, that of peers (lords) and that of an elected [rather than appointed] commons, and the final form of the constitution was fixed. wardships of children and widows were sought because they were very profitable. a guardian could get one tenth of the income of the property during the wardship and a substantial marriage amount when the ward married. parents often made contracts to marry for their young children. this avoided a forced marriage by a ward should the parents die. most earldoms and many baronages came into the royal house by escheat or marriage. the royal house employed many people. the barons developed a class consciousness of aristocracy and became leaders of society. many men, no matter of whom they held land, sought knighthood. the king granted knighthood by placing his sword on the head of able-bodied and moral candidates who swore an oath of loyalty to the king and to defend "all ladies, gentlewomen, widows and orphans" and to "shun no adventure of your person in any war wherein you should happen to be". a code of knightly chivalry became recognized, such as telling the truth and setting wrongs right. about half of the knights were literate. in 1278, the king issued a writ ordering all free-holders who held land of the value of at least 400s. to receive knighthood at the king's hands. at the royal house and other great houses gentlemanly jousting competitions, with well-refined and specific rules, took the place of violent tournaments with general rules. edward forbade tournaments at which there was danger of a "melee". at these knights competed for the affection of ladies by jousting with each other while the ladies watched. courtly romances were common. if a man convinced a lady to marry him, the marriage ceremony took place in church, with feasting and dancing afterwards. romantic stories were at the height of their popularity. a usual theme was the lonely quest of a knight engaged in adventures which would impress his lady. riddles include: 1. i will make you a cross, and a thing will not touch you, and you will not be able to leave the house without breaking that cross. answer: stand before a post in your house, with your arms extended. 2. what you do not know, and i do not know, and no one can know after i have told you. answer: i will take a straw from the floor of the room, measure its inches, tell you the length, and break the straw. 3. a pear tree bears all the fruit a pear tree can bear and did not bear pears. answer: it bore only one pear. the dress of the higher classes was very changeable and subject to fashion as well as function. ladies no longer braided their hair in long tails, but rolled it up in a net under a veil, often topped with an elaborate and fanciful headdress. they wore nonfunctional long trains on their tunics and dainty shoes. men wore a long gown, sometimes clasped around the waist. overtunics were often lined or trimmed with native fur such as squirrel. people often wore solid red, blue, or green clothes. only monks and friars wore brown. the introduction of buttons and buttonholes to replace pins and laces made clothing warmer, and it could be made tighter. after edward i established the standard inch as three continuous dried barleycorns, shoes came in standard sizes and with a right one different from a left one. the spinning wheel came into existence to replace the hand-held spindle. now one hand could be used to form the thread while the other hand turned a large upright wheel that caused the thread to wind around the spindle, which did not have to be held by hand. this resulted in an uninterrupted spinning motion which was not interrupted by alternately forming the thread and winding it on the spindle. lords surrounded themselves with people of the next lower rank, usually from nearby families, and had large households. for instance, the king had a circle of noblemen and ladies about him. a peer or great prelate had a household of about 100-200 people, among which were his inner circle, companions, administrators, secretaries, bodyguards and armed escort, chaplain, singing priests and choirboys, and servants. all officers of the household were gentlemen. the secretary was usually a clerk, who was literate because he had taken minor clerical orders. since the feudal obligation of the tenants was disappearing, a lord sometimes hired retainers to supplement his escort of fighting men. they proudly wore his livery of cloth or hat, which was in the nature of a uniform or badge of service. a nobleman and his lady had a circle of knights and gentlemen and their ladies. a knight had a circle of gentlemen and their ladies. the great barons lived in houses built within the walls of their castles. lesser barons lived in semi-fortified manors, many of which had been licensed to be embattled or crenellated. their halls were two stories high, and usually built on the first rather than on the second floor. windows came down almost to the floor. the hall had a raised floor at one end where the lord and lady and a few others sat at a high table. the hearth was in the middle of the room or on a wall. sometimes a cat was used to open and shut the louvers of the smoke outlet in the roof. the lord's bedroom was next to the hall on the second floor and could have windows into the hall and a spiral staircase connecting the two rooms. there was a chapel, in which the lord attended mass every morning. the many knights usually lived in unfortified houses with two rooms. in the great houses, there were more wall hangings, and ornaments for the tables. the tables were lit with candles or torches made of wax. plates were gold and silver. the lord, his lady, and their family and guests sat at the head table, which was raised on a dais. on this high table was a large and elaborate salt cellar. one's place in relationship to the salt cellar indicated one's status: above or below the salt. also, those of higher status at the table ate a superior bread. the almoner [alms giver] said grace. gentlemen poured the lord's drink [cupbearer], served his meat [carver], and supervised the serving of the food [sewer]. a yeoman ewery washed the hands of the lord and his guests and supplied the napkins, ewers [pitchers], and basins. a yeoman cellarer or butler served the wine and beer. the yeoman of the pantry served the bread, salt, and cutlery. the steward presided over the table of household officers of gentle birth. the marshall of the hall, clerk of the kitchen, or other yeomen officers supervised other tables. salt and spices were available at all tables. most people ate with their fingers, although there were knives and some spoons. drinking vessels were usually metal, horn, or wood. a marshall and ushers kept order. minstrels played musical instruments or recited histories of noble deeds or amusing anecdotes. reading aloud was a favorite pastime. the almoner collected the left-overs to distribute to the poor. in lesser houses people ate off trenchers [a four day old slab of coarse bread or a piece of wood with the middle scooped out like a bowl], or plates of wood or pewter [made from tin, copper, and lead]. they often shared plates and drinking vessels at the table. queen eleanor, a cultivated, intelligent, and educated lady from the continent, fostered culture and rewarded individual literary efforts, such as translations from latin, with grants of her own money. she patronized oxford and cambridge universities and left bequests to poor scholars there. she herself had read aristotle and commentaries thereon, and she especially patronized literature which would give cross-cultural perspectives on subjects. she was kind and thoughtful towards those about her and was also sympathetic to the afflicted and generous to the poor. she shared edward's career to a remarkable extent, even accompanying him on a crusade. she had an intimate knowledge of the people in edward's official circle and relied on the advice of two of them in managing her lands. she mediated disputes between earls and other nobility, as well as softened her husband's temper towards people. edward granted her many wardships and marriages and she arranged marriages with political advantages. she dealt with envoys coming to the court. her intellectual vitality and organized mentality allowed her to deal with arising situations well. edward held her in great esteem. she introduced to england the merino sheep, which, when bred with the english sheep, gave them a better quality of wool. she and edward often played games of chess and backgammon. farm efficiency was increased by the use of windmills in the fields to pump water and by allowing villeins their freedom and hiring them as laborers only when needed. customary service was virtually extinct. a man could earn 5d. for reaping, binding, and shocking into a pile, an acre of wheat. a strong man with a wife to do the binding could do this in a long harvest day. harvests were usually plentiful, with the exception of two periods of famine over the country due to weather conditions. then the price of wheat went way up and drove up the prices of all other goods correspondingly. the story of outlaw robin hood, who made a living by robbing, was passed around. this robin hood did not give to the poor. but generally, there was enough grain to store so that the population was no longer periodically devastated by famine. the population grew and all arable land in the nation came under the plough. the acre was standardized. about 1300, the price of an ox was 9s., a heifer or cow 7s., a hide 2s.6d., a cart horse 2 or 3 pounds. farm women went to nearby towns to sell eggs and dairy products, usually to town women. although manors needed the ploughmen, the carters and drivers, the herdsmen, and the dairymaid on a full-time basis, other tenants spent increasing time in crafts and became village carpenters, smiths, weavers or millers' assistants. trade and the towns grew. smiths used coal in their furnaces. money rents often replaced service due to a lord, such as fish silver, malt silver, or barley silver. the lord's rights are being limited to the rights declared on the extents [records showing service due from each tenant] and the rolls of the manor. sometimes land is granted to strangers because none of the kindred of the deceased will take it. often a manor court limited a fee in land to certain issue instead of being inheritable by all heirs. surveyors' poles marked boundaries declared by court in boundary disputes. this resulted in survey maps showing villages and cow pastures. the revival of trade and the appearance of a money economy was undermining the long-established relationship between the lord of the manor and his villeins. as a result, money payments were supplementing or replacing payments in service and produce as in martham, where thomas knight held twelve acres in villeinage, paid 16d. for it and 14d. in special aids. "he shall do sixteen working days in august and for every day he shall have one repast viz. bread and fish. he shall hoe ten days without the lord's food price of a day 1/2 d. he shall cart to norwich six cartings or shall give 9d., and he shall have for every carting one leaf and one lagena or gallon of ale. also for ditching 1d. he shall make malt 3 1/2 seams of barley or shall give 6d. also he shall flail for twelve days or give 12d. he shall plough if he has his own plough, and for every ploughing he shall have three loaves and nine herrings ... for carting manure he shall give 2." another example is this manor's holdings, when 3d. would buy food for a day: "extent of the manor of bernehorne, made on wednesday following the feast of st. gregory the pope, in the thirty-fifth year of the reign of king edward, in the presence of brother thomas, keeper of marley, john de la more, and adam de thruhlegh, clerks, on the oath of william de gocecoumbe, walter le parker, richard le knyst, richard the son of the latter, andrew of estone, stephen morsprich, thomas brembel, william of swynham, john pollard, roger le glide, john syward, and john de lillingewist, who say that there are all the following holdings:... john pollard holds a half acre in aldithewisse and owes 18d. at the four terms, and owes for it relief and heriot. john suthinton holds a house and 40 acres of land and owes 3s.6d. at easter and michaelmas. william of swynham holds one acre of meadow in the thicket of swynham and owes 1d. at the feast of michaelmas. ralph of leybourne holds a cottage and one acre of land in pinden and owes 3s. at easter and michaelmas, and attendance at the court in the manor every three weeks, also relief and heriot. richard knyst of swynham holds two acres and a half of land and owes yearly 4s. william of knelle holds two acres of land in aldithewisse and owes yearly 4s. roger le glede holds a cottage and three roods of land and owes 2s.6d. easter and michaelmas. alexander hamound holds a little piece of land near aldewisse and owes one goose of the value of 2d. the sum of the whole rent of the free tenants, with the value of the goose, is 18s.9d. they say, moreover, that john of cayworth holds a house and 30 acres of land, and owes yearly 2s. at easter and michaelmas; and he owes a cock and two hens at christmas of the value of 4d. and he ought to harrow for two days at the lenten sowing with one man and his own horse and his own harrow, the value of the work being 4d.; and he is to receive from the lord on each day three meals, of the value of 5d., and then the lord will be at a loss of 1d. thus his harrowing is of no value to the service of the lord. and he ought to carry the manure of the lord for two days with one cart, with his own two oxen, the value of the work being 8d.; and he is to receive from the lord each day three meals at the value as above. and thus the service is worth 3d. clear. and he shall find one man for two days, for mowing the meadow of the lord, who can mow, by estimation, one acre and a half, the value of the mowing of an acre being 6d.: the sum is therefore 9d. and he is to receive each day three meals of the value given above. and thus that mowing is worth 4d. clear. and he ought to gather and carry that same hay which he has cut, the price of the work being 3d. and he shall have from the lord two meals for one man, of the value of 1 1/2 d. thus the work will be worth 1 1/2 d. clear. and he ought to carry the hay of the lord for one day with a cart and three animals of his own, the price of the work being 6d. and he shall have from the lord three meals of the value of 2 1/2 d. and thus the work is worth 3 1/2 d. clear. and he ought to carry in autumn beans or oats for two days with a cart and three animals of his own, the value of the work being 12d. and he shall receive from the lord each day three meals of the value given above. and thus the work is worth 7d. clear. and he ought to carry wood from the woods of the lord as far as the manor, for two days in summer, with a cart and three animals of his own, the value of the work being 9d. and he shall receive from the lord each day three meals of the price given above. and thus the work is worth 4d. clear. and he ought to find one man for two days to cut heath, the value of the work being 4d., and he shall have three meals each day of the value given above: and thus the lord will lose, if he receives the service, 3d. thus that mowing is worth nothing to the service of the lord. and he ought to carry the heath which he has cut, the value of the work being 5d. and he shall receive from the lord three meals at the price of 2 1/2 d. and thus the work will be worth 2 1/2 d. clear. and he ought to carry to battle, twice in the summer season, each time half a load of grain, the value of the service being 4d. and he shall receive in the manor each time one meal of the value of 2d. and thus the work is worth 2d. clear. the totals of the rents, with the value of the hens, is 2s.4d. the total of the value of the works is 2s.3 1/2 d., being owed from the said john yearly. william of cayworth holds a house and 30 acres of land and owes at easter and michaelmas 2s. rent. and he shall do all customs just as the aforesaid john of cayworth. william atte grene holds a house and 30 acres of land and owes in all things the same as the said john. alan atte felde holds a house and 16 acres of land (for which the sergeant pays to the court of bixley 2s.), and he owes at easter and michaelmas 4s., attendance at the manor court, relief, and heriot. john lyllingwyst holds a house and four acres of land and owes at the two terms 2s., attendance at the manor court, relief, and heriot. the same john holds one acre of land in the fields of hoo and owes at the two periods 2s., attendance, relief, and heriot. reginald atte denne holds a house and 18 acres of land and owes at the said periods 18d., attendance, relief, and heriot. robert of northehou holds three acres of land at saltcote and owes at the said periods attendance, relief, and heriot. total of the rents of the villeins, with the value of the hens, 20s. total of all the works of these villeins, 6s.10 1/2 d. and it is to be noted that none of the above-mentioned villeins can give their daughters in marriage, nor cause their sons to be tonsured, nor can they cut down timber growing on the lands they hold, without licence of the bailiff or sergeant of the lord, and then for building purposes and not otherwise. and after the death of any one of the aforesaid villeins, the lord shall have as a heriot his best animal, if he had any; if, however, he have no living beast, the lord shall have no heriot, as they say. the sons or daughters of the aforesaid villeins shall give, for entrance into the holding after the death of their predecessors, as much as they give of rent per year. sylvester, the priest, holds one acre of meadow adjacent to his house and owes yearly 3s. total of the rent of tenants for life, 3s. petronilla atte holme holds a cottage and a piece of land and owes at easter and michaelmas ; also, attendance, relief, and heriot. walter herying holds a cottage and a piece of land and owes at easter and michaelmas 18d., attendance, relief, and heriot. isabella mariner holds a cottage and owes at the feast of st. michael 12d., attendance, relief, and heriot. jordan atte melle holds a cottage and 1 1/2 acres of land and owes at easter and michaelmas 2s., attendance, relief, and heriot. william of batelesmere holds one acre of land with a cottage and owes at the feast of st. michael 3d., and one cock and one hen at christmas of the value of 3d., attendance, relief, and heriot. john le man holds half an acre of land with a cottage and owes at the feast of st. michael 2s., attendance, relief, and heriot. hohn werthe holds one rood of land with a cottage and owes at the said term 18d., attendance, relief, and heriot. geoffrey caumbreis holds half an acre and a cottage and owes at the said term 18d., attendance, relief, and heriot. william hassok holds one rood of land and a cottage and owes at the said term 18d., attendance, relief, and heriot. the same man holds 3 1/2 acres of land and owes yearly at the feast of st. michael 3s. for all. roger doget holds half an acre of land and a cottage, which were those of r. the miller, and owes at the feast of st. michael 18d., attendance, relief, and heriot. thomas le brod holds one acre and a cottage and owes at the said term 3s., attendance, relief, and heriot. agnes of cayworth holds half an acre and a cottage and owes at the said term 18d., attendance, relief, and heriot. total of the rents of the said cottagers, with the value of the hens, 34s.6d. and it is to be noted that all the said cottagers shall do as regards giving their daughters in marriage, having their sons tonsured, cutting down timber, paying heriot, and giving fines for entrance, just as john of cayworth and the rest of the villeins above mentioned." the above fines and penalties, with heriots and reliefs, are worth 5s. yearly. often one village was divided up among two or more manors, so different manorial customs made living conditions different among the villagers. villages usually had carpenters, smiths, saddlers, thatchers, carters, fullers, dyers, soapmakers, tanners, needlers, and brassworkers. each villein had his own garden in which to grow fruit and vegetables next to his house, a pig (which fattened more quickly than other animals), strips in the common field, and sometimes an assart [a few acres of his own to cultivate as he pleased on originally rough uncultivated waste land beyond the common fields and the enclosed common pastures and meadows]. most villeins did not venture beyond their village except for about ten miles to a local shrine or great fair a couple times a year. at the fair might be fish, honey, spices, salt, garlic, oil, furs, silks, canvas, soap, pans, pots, grindstones, coal, nails, tar, iron, shovels, brushes, pails, horses, and pack-saddles. early apothecaries might sell potions there. men and women looking for other employment might attend to indicate their availability. under edward i, villages were required to mount watches to protect life and property and were called upon to provide one man for the army and to pay his wages. people told time by counting the number of rings of the church bell, which rang on the hour. every sunday, the villagers went to church, which was typically the most elaborate and centrally located building in the village. the parishioners elected churchwardens, who might be women. this religion brought comfort and hope of going to heaven after judgment by god at death if sin was avoided. on festival days, bible stories, legends, and lives of saints were read or performed as miracle dramas. they learned to avoid the devil, who was influential in lonely places like forests and high mountains. at death, the corpse was washed, shrouded, and put into a rectangular coffin with a cross on its lid. priests sang prayers amid burning incense for the deliverance of the soul to god while interring the coffin into the ground. men who did not make a will risked the danger of an intestate and unconfessed death. the personal property of a man dying intestate now went to the church as a trust for the dead man's immperiled soul instead of to the man's lord. unqualified persons entered holy orders thereby obtaining "benefit of clergy", and then returned to secular employments retaining this protection. a villein could be forever set free from servitude by his lord as in this example: "to all the faithful of christ to whom the present writing shall come, richard, by the divine permission, abbot of peterborough and of the convent of the same place, eternal greeting in the lord: let all know that we have manumitted and liberated from all yoke of servitude william, the son of richard of wythington, whom previously we have held as our born bondman, with his whole progeny and all his chattels, so that neither we nor our successors shall be able to require or exact any right or claim in the said william, his progeny, or his chattels. but the same william, with his whole progeny and all his chattels, shall remain free and quit and without disturbance, exaction, or any claim on the part of us or our successors by reason of any servitude forever. we will, moreover, and concede that he and his heirs shall hold the messuages, land, rents, and meadows in wythington which his ancestors held from us and our predecessors, by giving and performing the fine which is called merchet for giving his daughter in marriage, and tallage from year to year according to our will, that he shall have and hold these for the future from us and our successors freely, quietly, peacefully, and hereditarily, by paying to us and our successors yearly 40s. sterling, at the four terms of the year, namely: at st. john the baptist's day 10s., at michaelmas 10s., at christmas 10s., and at easter 10s., for all service, exaction, custom, and secular demand; saving to us, nevertheless, attendance at our court of castre every three weeks, wardship, and relief, and outside service of our lord the king, when they shall happen. and if it shall happen that the said william or his heirs shall die at any time without an heir, the said messuage, land rents, and meadows with their appurtenances shall return fully and completely to us and our successors. nor will it be allowed to the said william or his heirs to give, sell, alienate, mortgage, or encumber in any way, the said messuage, land, rents, and meadows, or any part of them, by which the said messuage, land, rents, and meadows should not return to us and our successors in the form declared above. and if this should occur later, their deed shall be declared null, and what is thus alienated shall come to us and our successors... given at borough, for the love of lord robert of good memory, once abbot, our predecessor and maternal uncle of the said william, and at the instance of the good man, brother hugh of mutton, relative of the said abbot robert, a.d. 1278, on the eve of pentecost." villeins who were released from the manorial organization by commutation of their service for a money payment took the name of their craft as part of their name, such as, for the manufacture of textiles, weaver, draper, comber, fuller, napper, cissor, tailor, textor; for metal-work, faber, ironmonger; for leatherwork, tanner; for woodwork, building and carpentry, carpenter, cooper, mason, pictor; for food-production, baker, pistor. iron, tin, lead, salt, and even coal were providing increasing numbers of people with a livelihood. many new boroughs were founded as grants of market rights by the king grew in number. these grants implied the advantage of the king's protection. in fact, one flooded town was replaced with a new town planned with square blocks. it was the charter which distinguished the borough community from the other communities existing in the country. it invested each borough with a distinct character. the privileges which the charter conferred were different in different places. it might give trading privileges: freedom from toll, a guild merchant, a right to hold a fair. it might give jurisdictional privileges: a right to hold court with greater or less franchises. it might give governmental privileges: freedom from the burden of attending the hundred and county courts, the return of writs, which meant the right to exclude the royal officials, the right to take the profits of the borough, paying for them a fixed sum to the crown or other lord of the borough, the right to elect their own officials rather than them being appointed by the king or a lord, and the right to provide for the government of the borough. it might give tenurial privileges: the power to make a will of lands, or freedom from the right of a lord to control his tenants' marriages. it might give procedural privileges: trial by combat is excluded, and trial by compurgation is secured and regulated. these medieval borough charters are very varied, and represent all stages of development and all grades of franchise. boroughs bought increasing rights and freedoms from their lord, who was usually the king. in the larger towns, where cathedrals and public building were built, there arose a system for teaching these technical skills and elaborate handicraft, wood, metal, stained glass, and stone work. a boy from the town would be bound over in apprenticeship to a particular craftsman, who supplied him with board and clothing. the craftsman might also employ men for just a day. these journeymen were not part of the craftsman's household as was the apprentice. after a few years of an apprenticeship, one became a journeyman and perfected his knowledge of his craft and its standards by seeing different methods and results in various towns. he was admitted as a master of his trade to a guild upon presenting an article of his work worthy of that guild's standard of workmanship: his "masterpiece". women, usually wives of brethren only, could be admitted. the tailors' guild and the skinners' guild are extant now. when guilds performed morality plays based on bible stories at town festivals, there was usually a tie between the bible story and the guild's craft. for instance, the story of the loaves and fishes would be performed by the bakers' or fishmongers' guild. the theme of the morality play was the fight of the seven cardinal virtues against the seven deadly sins for the human soul, a lifelong battle. the number seven was thought to have sacred power; there were seven sacraments, seven churches in the biblical apocalypse, seven liberal arts and seven devilish arts. the seven sacraments were: baptism, confirmation, lord's supper, penance, orders, matrimony, and extreme unction. a borough was run by a mayor elected usually for life. by being members of a guild, merchant-traders and craftsmen acquired the legal status of burgesses and had the freedom of the borough. each guild occupied a certain ward of the town headed by an alderman. the town aldermen, who were unpaid, made up the town council, which advised the mayor. the mayor of london received 40 pounds for hospitality, but in small towns, 20s. sufficed. often there were town police, bailiffs, beadles [messengers], a town crier, and a town clerk. london offices included recorder, prosecutor, common sergeant, and attorneys. in the center of town were the fine stone houses, a guildhall with a belfry-tower, and the marketplace a square or broad street, where the town crier made public announcements with bell or horn. here too was the ducking stool for scandalmongers and the stocks which held offenders by their legs and perhaps their hands to be scorned and pelted by bystanders with, for instance, rotten fruit and filth. no longer were towns dominated by the local landholders. in london there were 4 royal princes, 6 great earls, 17 barons, 26 knights, and 11 female representatives of the peerage (counted in 1319). there was a wall with four towers surrounding the white tower, and this castle was known as the tower of london. another wall and a moat were built around it and it has reached its final form. hovels, shops, and waste patches alternated with high walls and imposing gateways protecting mansions. the mansions had orchards, gardens, stables, brewhouses, bakeries, guardrooms, and chapels. london streets were paved with cobbles and sand. each citizen was to keep the street in front of his tenement in good repair. later, each alderman appointed four reputable men to repair and clean the streets for wages. the repair of bishopsgate was the responsibility of the bishop because he received one stick from every cart of firewood passing through it. rules as to tiled roofs were enforced. a 1297 ordinance required all taverns to close at curfew, an hour that fluctuated. prostitutes were expelled from the city because the street with their bawdy houses had become very noisy. women huckster-retailers, nurses, servants, and loose women were limited to wearing hoods furred with lambskin or rabbitskin and forbidden to wear hoods furred with vair or miniver [grey or white squirrel] in the guise of good ladies. an infirmary for the blind was founded by a mercer, who became its first prior. the london mayoral elections were hotly fought over until in 1285, when the aldermen began to act with the aid of an elected council in each of the twenty-four wards, which decentralized the government of the city. each ward chose certain of its inhabitants to be councilors to the aldermen. this council was to be consulted by him and its advice to be followed. in 1291, the aldermen for the first time included a fishmonger. the fishmongers were the only guild at this time, besides the weavers, which had acquired independent jurisdiction by the transfer of control of their weekly hall-mote from a public official to themselves. craftsmen began to take other public offices too. by the reign of edward ii, all the citizens were obliged to be enrolled among the tradeguilds. a great quarrel between the weaver's guild and the magistracy began the control of the city by the craft guilds or city companies. admission to freedom of the city [citizenship] was controlled by the citizens, who decided that no man of english birth, and especially no english merchant, who followed any specific mistery [french word for a calling or trade] or craft, was to be admitted to the freedom of the city except on the security of six reputable men of that mistery or craft. no longer could one simply purchase citizenship. apprentices had to finish their terms before such admission, and often could not afford the citizenship fee imposed on them. only freemen could sell wares in the city, a custom of at least two hundred years. as economic activity in london became more complex and on a larger scale in the 1200s, some craftsmen were brought under the control of other crafts or merchants. the bakers fell under the control of the wholesale grain dealers; the weavers became pieceworkers for rich cloth merchants; the blade-makers and shearers were employed by cutlers; coppersmiths were controlled by girdlers; fullers were controlled by entrepreneurial dyers; and the painters, joiners, and lorimers were controlled by the saddlers. guilds moved their meeting places from churches, which were now too small, to guild halls. the controlling officers of the large guilds met at the guildhall, which became the seat of mayoral authority. london streets in existence by this time include cordwainer, silver, cannon (candlewick), and roper. lanes included ironmonger, soper, spurrier, lad (ladles), distaff, needles, mede, limeburner, and hosier. fighting among groups was common in london. there was a street fight on a large scale in 1327 between the saddlers and a coalition of joiners, painters, and lorimers (makers of metal work of saddles). much blood was shed in the street battle between the skinners and the fishmongers in 1340. there was a city ordinance that no one except royal attendants, baronial valets, and city officials were to go about armed. disputes among neighbors that were brought to court included the use and upkeep of party walls, blocked and overflowing gutters, cesspits too close to a neighbor's property, noisy tenants, loss of light, and dangerous or overhanging structures. in 1275, a goldsmith was chief assay-master of the king's mint and keeper of the exchange at london. the king gave the goldsmiths' company the right of assay [determination of the quantity of gold or silver in an object] and required that no vessels of gold or silver should leave the maker's hands until they had been tested by the wardens and stamped appropriately. in 1279, goldsmith william farrington bought the soke of the ward containing the goldsmiths' shops. it remained in his family for 80 years. a patent of 1327 empowered the guild to elect a properly qualified governing body to superintend its affairs, and reform subjects of just complaint. it also prescribed, as a safeguard against a prevailing fraud and abuse, that all members of the trade should have their standing in cheapside or in the king's exchange, and that no gold or silver should be manufactured for export, except that which had been bought at the exchange or of the trade openly. some prices in london were: large wooden bedstead 18s., a small bedstead 2s., a large chest for household items 2s., feather beds 2-3s., a table 1s., a chair 4-6d., cloth gown lined with fur 1320s., plain coats and overcoats 2-8s., caps 2-8d., a pair of pencases with inkhorn 4d., a skin of parchment 1d., 24 sheets of paper 6d, a carcass of beef 15s., a pig 4s., a swan 5s., and a pheasant 4s. there was a problem with malefactors committing offenses in london and avoiding its jurisdiction by escaping to southwark across the thames. so southwark was given a royal charter which put it under the jurisdiction of london for peace and order matters and allowed london to appoint its tax collector. london forbade games being played because they had replaced practice in archery, which was necessary for defense. a royal inquiry into the state of the currency indicated much falsification and coin-clipping by the jews and others. about 280 jews and many englishmen were found guilty and hanged. the rest of the jews, about 16,000, were expelled in 1290. this was popular with the public because of the abuses of usury. there had been outbreaks of violence directed at the jews since about 1140. the king used italian bankers instead because he thought them more equitable in their dealings. the lepers were driven out of london in 1276. exports and imports were no longer a tiny margin in an economy just above the subsistence level. exports were primarily raw wool and cloth, but also grain, butter, eggs, herring, hides, leather goods such as bottles and boots, embroideries, metalware, horseshoes, daggers, tin, coal, and lead. imported were wine, silk, timber, furs, rubies, emeralds, fruits, raisins, currents, pepper, ginger, cloves, rice, cordovan leather, pitch, hemp, spars, fine iron, short rods of steel, bow-staves of yew, tar, oil, salt, cotton (for candle-wicks), and alum (makes dyes hold). ships which transported them had one or two masts upon which sails could be furled, the recently invented rudder, and a carrying capacity of up to 200 tuns [about one ton]. many duties of sheriffs and coroners were transferred to county landholders by commissions. in coastal counties, there were such commissions for supervising coastal defense and maintaining the beacons. each maritime county maintained a coast guard, which was under the command of a knight. ports had well-maintained harbors, quays, and streets. by 1306 there was an office of admiral of the fleet of the ships of the southern ports. women could inherit land in certain circumstances. some tenants holding land in chief of the king were women. regulation of trade became national instead of local. trade was relatively free; almost the only internal transportation tolls were petty portages and viages levied to recoup the expense of a bridge or road which had been built by private enterprise. responsibility for the coinage was transferred from the individual moneyers working in different boroughs to a central official who was to become master of the mint. the round half penny and farthing [1/4 penny] were created so that the penny needn't be cut into halves and quarters anymore. edward i called meetings of representatives from all social and geographic sectors of the nation at one parliament to determine taxes due to the crown. he declared that "what touches all, should be approved by all". he wanted taxes from the burgesses in the towns and the clergy's ecclesiastical property as well as from landholders. he argued to the clergy that if barons had to both fight and pay, they who could do no fighting must at least pay. when the clergy refused to pay, he put them outside the royal protection and threatened outlawry and confiscation of their lands. then they agreed to pay and to renounce all papal orders contrary to the king's authority. the model parliament of 1295 was composed of the three communities. the first were the lords, which included seven earls and forty-one barons. because of the increase of lesser barons due to a long national peace and prosperity, the lords attending were reduced in numbers and peerage became dependent not on land tenure, but on royal writ of summons. the great barons were chosen by the king and received a special summons in their own names to the council or parliament. others were called by a general summons. the second community was the clergy, represented by the two archbishops, bishops from each of eighteen dioceses, and sixty-seven abbots. the third community was the commons. it was composed of two knights elected by the suitors who were then present at the county court, two burgesses elected by principal burgesses of each borough, and two representatives from each city. the country knights had a natural affinity with the towns in part because their younger sons sought their occupation, wife, and estate there. also, great lords recruited younger brothers of yeoman families for servants and fighting men, who ultimately settled down as tradesmen in the towns. the country people and the town people also had a community of interest by both being encompassed by the county courts. the peasants were not represented in the county courts nor in parliament. one had to have land to be entitled to vote because the landowner had a stake in the country, a material security for his good behavior. parliaments without knights and burgesses still met with the king. but it was understood that no extraordinary tax could be levied without the knights and burgesses present. ordinary taxes could be arranged with individuals, estates, or communities. the lower clergy ceased to attend parliament and instead considered taxes to pay to the king during their national church convocations, which were held at the same time as parliament. for collection purposes, their diocesan synod was analogous to the count court. the higher clergy remained in parliament because they were feudal vassals of the king. edward's council was the highest tribunal. it comprised the chancellor, treasurer and other great officers of state, the justices of the three courts, the master or chief clerks of the chancery, and certain selected prelates and barons. the council assisted the king in considering petitions. most petitions to the king were private grievances of individuals, including people of no social rank, such as prisoners. other petitions were from communities and groups, such as religious houses, the two universities, boroughs, and counties. these groups sometimes formed alliances in a common cause. women sometimes petitioned. from 1293, the petitions were placed in four stacks for examination by the king and council, by the chancery, by the exchequer, or by the justices. many hours were spent hearing and answering petitions. from 1305, the petitions were presented to the king in full parliament. the king still exercised the power of legislation without a full parliament. he might in his council issue proclamations. the chief justices still had, as members of the king's council, a real voice in the making of laws. the king and his justices might, after a statute has been made, put an authoritative interpretation upon it. royal proclamations had the same force as statutes while the king lived; sometimes there were demands that certain proclamations be made perpetual by being embodied in statutes, e.g. fixing wages. there was no convention that agreement or even the presence of representatives was required for legislation. the idea that the present can bind the absent and that the majority of those present may outvote the minority was beginning to take hold. edward i's councilors and justices took an oath to give, expedite, and execute faithful counsel; to maintain, recover, increase, and prevent the diminution of, royal rights; to do justice, honestly and unsparingly; to join in no engagements which may present the councilor from fulfilling his promise; and to take no gifts in the administration of justice, save meat and drink for the day. these were in addition to other matters sworn to by the councilors. parliament soon was required to meet at least once a year at the great hall at westminster beside the royal palace. london paid its representatives 10s. per day for their attendance at parliament. from the time of edward ii, the counties paid their knightrepresentatives 4s. daily, and the boroughs paid their burgessrepresentatives 2s. daily. when it convened, the chancellor sat on the left and the archbishop of canterbury on the right of the king. just below and in front of the king his council sits on wool sacks brought in for their comfort from wool stored nearby. it answers questions. behind them on the wool sacks sit the justices, who may be called upon to give legal advice, e.g. in framing statutes. then come the spiritual and lay barons, then the knights, and lastly the elected burgesses and citizens. lawmaking is now a function of parliament, of which the king's council is a part, instead of a function of the king with his council and justices. the common people now had a voice in law-making, though legislation could be passed without their consent. the first legislation proposed by the commons was alteration of the forest laws governing the royal pleasure parks. such a statute was passed in a bargain for taxes of a percentage of all movables, which were mostly foodstuffs and animals. the king offered to give up the royal right to tax merchandise for a new tax: customs on exports. the barons and knights of the county agreed to pay an 11th, the burgesses, a 7th, and the clergy a 10th on their other movables. in time, several boroughs sought to be included in the county representation so they could pay the lower rate. this new system of taxation began the decline of the imposition of feudal aids, knights' fees, scutages, carucage, and tallage, which had been negotiated by the exchequer with the reeves of each town, the sheriff and county courts of each county, and the bishops of each diocese. the staple [depot or mart, from the french "estaple"] system began when the export of wool had increased and parliament initiated customs duties of 6s.8d. on every sack of wool, woolfells [sheepskin with wool still on it], or skins exported in 1275. these goods had to be assessed and collected at certain designated ports. certain large wool merchants, the merchants of the staple, were allowed to have a monopoly on the purchase and export of wool. imports of wine were taxed as tunnage as before, that is there was a royal right to take from each wine ship one cask for every ten at the price of 20s. per cask. in 1297, edward i confirmed the magna carta and other items. judgments contrary to magna carta were nullified. the documents were to be read in cathedral churches as grants of edward and all violators were to be excommunicated. he also agreed not to impose taxes without the consent of parliament after baronial pressure had forced him to retreat from trying to increase, for a war in france, the customs tax on every exported sack of wool to 40s. from the 6s. 8d. per sack it had been since 1275. the customs tax was finally fixed at 10s. for every sack of wool, 2s. for each tun [casket] of wine, and 6d. for every pound's worth of other goods. the "tenths and fifteenths" tax levied on income from movables or chattels became regular every year. edward also confirmed the forest charter, which called for its earlier boundaries. and he agreed not to impound any grain or wool or and like against the will of the owners, as had been done before to collect taxes. also, the special prises or requisitions of goods for national emergency were not to be a precedent. lastly, he agreed not to impose penalties on two earls and their supporters for refusing to serve in the war in france when the king did not go. from 1299, statutes were recorded in a statute roll as they were enacted. by the end of the 1200s, the king's wardrobe, where confidential matters such as military affairs were discussed in his bedroom, became a department of state with the king's privy seal. the keeper of the privy seal was established as a new office by edward i in 1318. the wardrobe paid and provisioned the knights, squires, and sergeants of the king and was composed mostly of civil servants. it traveled with the king. the crown's treasure, plate, tents, hangings, beds, cooking-utensils, wine, and legal and financial rolls were carried on pack horses or in two-wheeled carts drawn by oxen, donkeys, or dogs. the people in the entourage rode horses or walked. the other two specialized administrative bodies were the exchequer, which received most of the royal revenue and kept accounts at westminster, and the chancery, which wrote royal writs, charters, and letters, and kept records. the chief functions of administration in the 1300s were performed by the council, chancery, wardrobe, chamber [room off wardrobe for dressing and for storage], and exchequer. many of the chancellors had come from the wardrobe and chamber. in time, the chancellor ceased to be a part of the king's personal retinue and to follow the court. the chancery became primarily a department of central administration rather than a secretarieat and record-keeping part of the royal household. the king used a privy seal to issue directives to the chancery. edward iii made some merchants earls and appointed them to be his ministers. he did not summon anyone to his council who did not have the confidence of the magnates [barons, earls, bishops, and abbots]. there was a recoinage due to debasement of the old coinage. this increased the number of coins in circulation. the price of wheat went from about 7s. in 1270 to about 5s. per quarter in 1280. also the price of an ox went from 14s. to 10s. then there were broad movements of prices, within which there were wide fluctuations, largely due to the state of the harvest. from 1280 to 1290, there was runaway inflation. in some places, both grain and livestock prices almost doubled between 1305 and 1310. wheat prices peaked at 15s.5d. a quarter in the famine year of 1316. in 1338, prices dropped and remained low for twenty years. the poor were hurt by high prices and the lords of the manors were hurt by low prices. as before, inadequate care and ignorance of nutrition caused many infant deaths. accidents and disease were so prevalent that death was always near and life insecure. many women died in childbirth. in the 1300s, there were extremes of fashion in men's and women's clothing including tight garments, pendant sleeves down to the ground, coats so short they didn't reach the hips or so long they reached the heels, hoods so small they couldn't cover the head, and shoes with long curved peaks like claws at the toes. both men and women wore belts low on the hips. the skirt of a lady's tunic was fuller and the bodice more closely fitted than before. her hair was usually elaborately done up, e.g. with long curls or curled braids on either side of the face. a jeweled circlet was often worn around her head. ladies wore on their arms or belts, cloth handbags, which usually contained toiletries, such as combs made of ivory, horn, bone, or wood, and perhaps a little book of devotions. a man wore a knife and a bag on his belt. some women painted their faces and/or colored their hair. there were handheld glass mirrors. some people kept dogs purely as pets. there was a great development of heraldic splendor with for instance, crests, coat-armor, badges, pennons [long, triangular flag], and helmets. they descended through families. not only was it a mark of service to wear the badge of a lord, but lords wore each other's badges by way of compliment. edward i always sought the agreement of parliament before assembling an army or taking actions of war, and parliamentary consent came to be expected for such. he completed the conquest and annexation of wales in 1284. the feudal army was summoned for the last time in the 100 year war with france, which began in 1337. in it the english longbow was used to pierce french knights' armor. there had been much competition between the strength of arrows to pierce and the heaviness of armor to resist. guns and cannon with gunpowder were introduced in 1338. a system to raise an army by contract was developed. contracts were made with nobles, knights, or esquires who undertook to enlist an agreed number of armored men-at-arms and archers, who were paid wages. the king provided transport for each contractor and his retinue, baggage, and horses. the title of "knight" now resumed its military character as well as being a social rank. after edward i died in 1307, there was a period of general lawlessness and contests for power between earls and barons and the irresponsible king edward ii, who was not a warrior king. he eventually was assassinated. also in 1307, parliament required the king to obtain its consent for any exchange or alteration of the currency. by 1319, the guilds of london had become so powerful that they extracted a charter from the king that to be a citizen of london one had to be a member of a guild. by 1326, scholars, the nobility, and the clergy had reading eyeglasses, which had been invented in italy, probably by the glass blowers. italy was famous for its glasswork. the first eyeglasses were fabricated by pouring molten glass into curved molds. the actual shape was difficult to control because thermal expansion and contraction resulted in bubbles and other optical imperfections. as of 1336, importing foreign cloth or fur, except for use by the king's family, was prohibited, as was the export of unwoven wool. later, this was relaxed and a customs tax of 33% was imposed on wool exported. foreign cloth-workers were allowed by statute to come to live in the nation, be granted franchises, and be in the king's protection. but no cloth was to be exported until it was fulled. during the reign of edward iii, flanders weavers were encouraged to come to england to teach the english how to weave and finish fine cloth. a cloth industry grew with all the manufacturing processes under the supervision of one capitalist manufacturer, who set up his enterprise in the country to avoid the regulations of the towns. the best places were hilly areas where there were many streams and good pasture for flocks of sheep. he hired shearers to cut the nap as short as possible to give a smooth surface, then spinsters to card and spin the wool in their country cottages, then weavers, and then fullers and dyers to come to fulling mills established near streams for their waterpower. fulling became mechanized as heavy wooden hammers run by waterpower replaced feet trampling the cloth covered with soap or fuller's clay. the shaft loom was a technological advance in weaving. this loom was horizontal and its frames, which controlled the lifting of the warp threads, could each be raised by a foot treadle. this left both hands free to throw and catch the shuttle attached to the weft thread from side to side through the warp. also many more weaving patterns became possible through the use of different thread configurations on the frames. in 1341, the commons forced king edward iii and council to approve their petition when parliament was still in session so that they would draft the legislation in true accordance with the petition. this had not been done when drafting had been done after parliament ended, when the phrase "saving the prerogatives of the king" was often added. also the lords and commons consulted each other and joined in petitions. but they usually stated their conclusions to the king separately. it was considered a burden rather than a privilege to attend parliament and elections for such were not often contested. they were conducted according to local custom until 1600. in 1348, the commons voted a tax of 1/15th on moveables for three years with the proviso that it be spent only on the war against scotland. this began the practice of appropriation of funds. in 1381, began the practice of appointing treasurers of the subsidies to account to parliament for both receipts and disbursements. alien merchants wree under the king's special protection. in return for paying extra import and export duties, edward iii gave alien merchants full rights of trade, travel, and residence in england free of all local tolls and restrictions, and guaranteed a fair hearing of their commercial and criminal cases in special pie powder (after french "pie poudrous" or dusty feet) courts at fairs. the law edward i remodeled the law in response to grievances and to problems which came up in the courts. the changes improved the efficiency of justice and served to accommodate it to the changing circumstances of the social system. these statutes were: "no man by force of arms, malice or menacing shall disturb anyone in making free election [of sheriffs, coroners, conservators of the peace by freeholders of the county]." "no city, borough, town, nor man shall be amerced without reasonable cause and according to the severity of his trespass. that is, every freeman saving his freehold, a merchant saving his merchandise, a villein saving his waynage [implements of agriculture], and that by his peers." no distress shall be taken of ploughing-cattle or sheep. young salmon shall not be taken from waters in the spring. no loan shall be made for interest. if an heir who is a minor is married off without the consent of the guardian, the value of the marriage will be lost and the wrongdoer imprisoned. if anyone marries off an heir over 14 years of age without the consent of the guardian, the guardian shall have double the value of the marriage. moreover, anyone who has withdrawn a marriage shall pay the full value thereof to the guardian for the trespass and make amends to the king. and if a lord refuses to marry off a female heir of full age and keep her unmarried because he covets the land, then he shall not have her lands more than two years after she reaches full age, at which time she can recover her inheritance without giving anything for the wardship or her marriage. however, if she maliciously refuses to be married by her lord, he may hold her land and inheritance until she is the age of a male heir, that is, 21 years old and further until he has taken the value of the marriage. aid to make one's son a knight or marry off his daughter of a whole knight's fee shall be taken 20s., and 400s.[yearly income from] land held in socage 20s. [5%], and of more, more; and of less, less; after the rate. and none shall levy such aid to make his son a knight until his son is 15 years old, nor to marry his daughter until she is seven year old. a conveyance of land which is the inheritance of a minor child by his guardian or lord to another is void. dower shall not abate because the widow has received dower of another man unless part of the first dower received was of the same tenant and in the same town. but a woman who leaves her husband for another man is barred from dower. a tenant for a term of years who has let land from a landlord shall not let it lie waste, nor shall a landlord attempt to oust a tenant for a term of years by fictitious recoveries. when two or more hold wood, turfland, or fishing or other such thing in common, wherein none knows his several, and one does waste against the minds of the others, he may be sued. lands which are given to a man and his wife upon condition that if they die without heirs, the land shall revert to the donor or his heir, may not be alienated to defeat this condition. if a man takes land in marriage with a wife, and she dies before him, the land will revert to the donor or his heir, unless the couple has a child, in which case the husband will have the land by the courtesy of the nation for his life before it reverts to the donor or his heir. the ecclesiastical law had a doctrine for women-covert, i.e. women under the protection or coverture of a husband. it held that chattels of a woman who married vested in her husband, but he could not dispose of them by will. her jewelry, but not her apparel, could go to his creditors if his assets didn't cover his debts. if she was a merchant when she married, she could still sell her goods in the open market. the husband also had the right to the rents and profits from his wife's real estate, but not the real estate itself, unless by the birth of a child he became tenant for life by courtesy. only the father, but not the mother had authority over their children. a father had a right to his child's services, and could sue a third party for abducting, enticing away, or injuring the child, just as he could for his servants. a husband was liable for the debts of his wife, even if incurred before the marriage. he was answerable for her torts and trespasses, except for battery. for this reason, he was allowed to chastise her, restrain her liberty for gross misbehavior, and punish her by beating for some misdemeanors. but the courts would protect her from death, serious bodily harm, or his failure to supply her the necessities of life. promises under oath were not recognized for married women. a conveyance or agreement of a married woman was void. these principles held only if she was under the protection of her husband, i.e. a woman-covert, and not if they lived separately, for instance if he went to sea. if separated, she had a right to alimony from him to maintain herself. a free tenant may alienate his land freely, but if the alienation was for an estate in fee simple [to a man and his heirs], the person acquiring the land would hold of the land's lord and not of the person alienating the land. (this halted the growth of subinfeudation and caused services as well as incidents of aids, relief, escheat, wardship, and marriage to go directly to the chief lord. it also advantaged the crown as overlord, which then acquired more direct tenants.) one may create an estate which will descend in unbroken succession down the line of inheritance prescribed in the original gift as long as that line should last, instead of descending to all heirs. this was called a fee simple conditional holding of land. the successive occupants might draw the rents and cut the wood, but on the death of each, his heir would take possession of an unencumbered interest, unfettered by any liability for the debt of his ancestor or by any disposition made by him during his lifetime e.g. a wife's estate in dower or a husband's estate in courtesy. if there was no issue, it reverted to the original donor. (this curtailed the advantage of tenants of the greater barons who profited by increased wardships and reliefs from subinfeudation from subdivision and better cultivation of their land while still paying the greater barons fixed sums. this statute that protected reversionary estates incidentally established a system of entails. this new manner of holding land: "fee tail", is in addition to the concepts of land held in fee simple (i.e. with no subdivisions) and land held for life. no grantee or his heirs could alienate the land held in fee tail. the donor could give directions that the land could remain to another person rather than reverting to himself. (interests in remainder or reversion of estates in land replace the lord's tenurial right to succeed to land by escheat if his tenant dies without heirs.) in kent, all men are free and may give or sell their lands without permission of their lords, as before the conquest. (since kent was nearest the continent, money flowed between england and the continent through kent. so kent never developed a manorial system of land holding, but evolved from a system of clans and independent villages directly into a commercial system. anyone disseising another whereby he also robs him or uses force and arms in the disseisin shall be imprisoned and fined. the plaintiff shall recover seisin and damages. "all must be ready at the command and summons of sheriffs, and at the cry of the country, to sue and arrest felons as necessary as well within franchise as without." otherwise, he shall be fined. a lord defaulting shall lose his franchise to the king. a bailiff defaulting shall be imprisoned a year as well as fined, or be imprisoned two years if he cannot pay the fine. a sheriff, coroner, or any other bailiff who conceals a felony will be imprisoned for a year and pay a fine, or be imprisoned for three years if he cannot pay the fine. villeins must report felons, pursue felons, serve in the watch, and clear growth of concealing underwood from roads. they must join the military to fight on the borders when called. desertion from the army is punishable. accessories to a crime shall not be declared outlaw before the principal is proven guilty. (this made uniform the practice of the various counties.) only those imprisoned for the smaller offenses of a single incidence of petty larceny, receipt of felons, or accessory to a felony, or some other trespass not punishable by life or limb shall be let out by sufficient surety. prisoners who were outlawed or escaped from prison or are notorious thieves or were imprisoned for felonious house burning, passing false money, counterfeiting the king's seal, treason touching the king himself, or other major offenses or have been excommunicated by the church may not be released. killing in self-defense and by mischance shall be pardoned from the king's indictment. killing by a child or a person of unsound mind shall be pardoned from the king's indictment. (but a private accuser can still sue.) any man who ravishes [abducts] any woman without her consent or by force shall have the criminal penalty of loss of life or limb. (the criminal penalty used to be just two years in prison.) trespasses in parks or ponds shall be punished by imprisonment for three years and a fine as well as paying damages to the wronged person. after his imprisonment, he shall find a surety or leave the nation. "forasmuch as there have been often times found in the country devisors of tales, where discord, or occasion of discord, has many times arisen between the king and his people, or great men of this realm; for the damage that has and may thereof ensue, it is commanded, that from henceforth none be so hardy to tell or publish any false news or tales, whereby discord or occasion of discord or slander may grow between the king and his people, or the great men of the realm." anyone doing so shall be imprisoned until he brings into the court the first author of the tale. a system of registration and enforcement of commercial agreements was established by statute. merchants could obtain a writing of a debt sealed by the debtor and authenticated by royal seal or a seal of a mayor of certain towns, and kept by the creditor. failure to pay a such a debt was punishable by imprisonment and, after three months, the selling of borough tenements and chattels and of county lands. during the three months, the merchant held this property in a new tenure of "statute merchant". (prior to this, it was difficult for a foreign merchant to collect a debt because he could not appear in court which did not recognize him as one of its proper "suitors" or constituents, so he had to trust a local attorney. also, the remedy was inadequate because the history of the law of debt was based on debt as a substitute for the blood feud, so that failure to pay meant slavery or death. also a debtor's land was protected by feudal custom, which was contrary to the idea of imposing a new tenant on a lord.) "in no city, borough, town, market, or fair shall a person of the realm be distrained for a debt for which he is not the debtor or pledge." anyone making those passing with goods through their jurisdiction answer to them in excess of their jurisdiction shall be grievously amerced to the king. no market town shall take an outrageous toll contrary to the common custom of the nation. since good sterling money has been counterfeited with base and false metal outside the nation and then brought in, foreigners found in the nation's ports with this false money shall forfeit their lives. anyone bringing money into the nation must have it examined at his port of entry. payments of money shall be made only by coin of the appropriate weight delivered by the warden of the exchange and marked with the king's mark. (a currency exchange was established at dover for the exchange of foreign currency for english sterling.) the silver in craftwork must be sterling and marked with the leopard's head. the gold in craftwork must meet the standard of the touch of paris. the assize of bread and ale had been and was enforced locally by local inspectors. now, the crown appointed royal officers for the gauge of wines and measurement of cloths. edicts disallowed middlemen from raising prices against consumers by such practices as forestalling [intercepting goods before they reached the market and then reselling them] or engrossing [buying a large supply of a commodity to drive up the price] and price regulation was attempted. for instance, prices were set for poultry and lamb, in a period of plenty. maximum prices were set for cattle, pigs, sheep, poultry, and eggs in 1314, but these prices were hard to enforce. in london examples of prices set are: best hen 3d.2q., best wild goose 4d., best hare 4d., best kid 10d., best lamb 4d., best fresh herrings 12 for 1d., best pickled herrings 20 for 1d., best haddock 2d., best fresh salmon 3s. freemen may drive their swine through the king's demesne forest to feed in their own woods or elsewhere. no man shall lose his life or limb for killing deer in the forest, but instead shall be grievously fined or imprisoned for a year. the forest charter allowed a man to cut down and take wood from his own woods in the king's forest to repair his house, fences, and hedges. he may also enclose his woods in the king's forest with fences and hedges to grow new trees and keep cattle and beasts therefrom. after seven years growth of these new trees, he may cut them down for sale with the king's permission. each borough has its own civil and criminal ordinances and police jurisdiction. borough courts tended to deal with more laws than other local courts because of the borough's denser populations, which were composed of merchants, manufacturers, and traders, as well as those engaged in agriculture. only borough courts have jurisdiction over fairs. in some boroughs the villein who resides for a year and a day becomes free. there are special ordinances relating to apprentices. there are sometimes ordinances against enticing away servants bound by agreement to serve another. the wife who is a trader is regarded in many places as a feme sole [single woman rather than a feme covert [woman-covert], who was under the protection of a husband]. there may be special ordinances as to the liability of masters for the acts of their apprentices and agents, or as to brokers, debt, or earnest money binding a bargain. the criminal and police jurisdiction in the borough was organized upon the same model as in the country at large, and was controlled by the king's courts upon similar principles, though there are some survivals of old rules, such as mention of the bot and the wer. the crimes committed are similar to those of the country, such as violence, breaches of the assize of bread and beer, stirring up suits before the ecclesiastical courts, digging up or obstructing the highway, not being enrolled in a tithing, encroachments upon or obstructions of rights of common. the most striking difference with the country at large are the ordinances on the repair or demolition of buildings, encroachments on another's building, fires, and nuisances. specimens of other characteristic urban disputes are: selling bad food, using bad materials, unskillful or careless workmanship, fraudulent weights and measures, fraud in buying and selling, forestalling or regrating [buying in one market to resell in another market], acting in a way likely to endanger the liberties of the borough, usury, trading without being a citizen, assisting other unlicensed persons to trade, unlawfully forming a guild, complaints against various guilds in which trade might be organized. since the ordinances were always liable to be called in question before the king's courts, they tended to become uniform and in harmony with the principles of the common law. also, trading between boroughs kept them knowledgeable about each other's customs and conditions for trade, which then tended to standardize. boroughs often had seals to prove communal consent and tended to act as a corporate body. borough ordinances often include arson such as this one: "and if a street be set on fire by any one, his body shall be attached and cast into the midst of the fire." robbery by the miller was specially treated by an ordinance that "and if the miller be attainted [found guilty] of robbery of the grain or of the flour to the amount of 4d., he shall be hanged from the beam in his mill." in london, an ordinance prescribed for bakers for the first offense of making false bread a forfeiture of that bread. for the second offense was prescribed imprisonment, and for the third offense placement in the pillory. a london ordinance for millers who caused bread to be false prescribed for them to be carried in a tumbrel cart through certain streets, exposed to the derision of the people. by statute, no one may make a gift or alienation of land to the church. an attempt to do so will cause the land to escheat to the lord, or in his default, to the king. religious houses may not alienate land given to them by the king or other patrons because such gifts were for the sake of someone's soul. an attempt to do so will cause the land to revert to the donor or his heir. if the church did not say the prayers or do the other actions for which land was given to it, the land will revert to the donor or his heir. land may not be alienated to religious bodies in such a way that it would cease to render its due service to the king. (the church never died, never married, and never had children.) the church shall send no money out of the nation. (this statute of mortmain was neutralized by collusive lawsuits in which the intended grantor would sue the intended grantee claiming superior title and then would default, surrendering the land to the intended grantee by court judgment.) "concerning wrecks of the sea, where a man, a dog, or a cat escape alive out of the ship, that such ship nor barge nor anything within them shall be deemed wreck, but the goods shall be saved and kept by view of the sheriff, coroner, or the king's bailiff". if anyone proves the goods were his within a year and a day, they shall be restored to him without delay. otherwise, they shall be kept by the king. "and where wreck belongs to one other than the king, he shall have it in like manner". if he does otherwise, he shall be imprisoned and pay damages and fine. some statutes applied only to kent county, which had a unique position between london and the continent. one could sell or give away his land without the consent of one's lord. the services of the land, however, could only be sold to the chief lord. inheritance of land was to all sons by equal portions, and if there were no sons, then to all daughters in equal portions. the eldest brother has his choice of portion, then the next oldest, etc. the goods of a deceased person were divided into three parts after his funeral expenses and debts were paid. one third went to the surviving spouse. one third went to the deceased's sons and daughters. one third could be disposed by will of the decedent. if there were no children, one half went to the spouse and one half went according to will. if an heir was under 15 years old, his next of kin to whom inheritance could not descend was to be his guardian. a wife who remarried or bore a child lost her dower land. a husband lost his dower if he remarried. if a tenant withheld rent or services, his lord could seek award of court to find distress on his tenement and if he could find none, he could take the tenement for a year and a day in his hands without manuring it. it the tenant paid up in this time, he got the tenement back. if he didn't within a year and a day, however, the lord could manure the land. a felon forfeited his life and his goods, but not his lands or tenements. a wife of a felon had the dower of one half or her husband's lands and tenements. the common law recognized the tort of false imprisonment if a man arrested as a felon, a person who was not a felon. judicial procedure the writ of quo warranto [by what right] is created, by which all landholders exercising jurisdictions must bring their ancestors' charters before a traveling justice for the common pleas for examination and interpretation as to whether they were going beyond their charters and infringing upon the jurisdiction of the royal court. as a result, many manor courts were confined to manorial matters and could no longer view frankpledge or hear criminal cases, which were reserved for the royal courts. in the manor courts which retained criminal jurisdiction, there was a reassertion of the obligation to have present a royal coroner, whose duty it was to see that royal rights were not infringed and that the goods of felons were given to the crown and not kept by the lords. the supreme court was the king and his council in parliament. it heard the most important causes, important because they concern the king, or because they concern very great men (e.g.treason), or because they involve grave questions of public law, or because they are unprecedented. it has large, indefinite powers and provides new remedies for new wrongs. the office of great justiciar disappears and the chancellor becomes the head of the council. after the council were the royal courts of the king's bench, common pleas, and the exchequer, which had become separate, each with its own justices and records. the court of common pleas had its own chief justice and usually met at westminster. this disadvantaged the small farmer, who would have to travel to westminster to present a case. the king's council maintained a close connection with the court of the king's bench, which heard criminal cases and appeals from the court of common pleas. it traveled with the king. there were many trespass cases so heard by it in the reign of edward i. the king's council did a great deal of justice, for the more part criminal justice. it was supported by the populace because it dealt promptly and summarily with rebellion or some scandalous acquittal of a notorious criminal by bribed or partial jurors, and thereby prevented anarchy. its procedure was to send for the accused and compel him to answer upon oath written interrogatories. affidavits were then sworn upon both sides. with written depositions before them, the lords of the council, without any jury, acquit or convict. fines and imprisonments were meted out to rioters, conspirators, bribers, and perjured jurors. no loss of life or limb occurred because there had been no jury. in criminal cases, witnesses acquainted with particular facts were added to the general assize of twelve men from each hundred and four men from each town. the assize then bifurcated into the grand jury of twelve to twenty-four men and the petty jury or jury of verdict of twelve men, which replaced ordeal, compurgation, and trial by combat as the method of finding the truth. the men of the petty jury as well as those of the grand jury were expected to know or to acquaint themselves with the facts of the cases. the men of the petty jury tended to be the same men who were on the grand jury. felony included such crimes as homicide, arson, rape, robbery, burglary, and larceny. murder still meant secret homicide. burglary was an offense committed in times of peace and consisted of breaking into churches, houses, and into the walls and gates of villages and boroughs. these six offenses could be prosecuted by indictment or private accusation by an individual. the penalties involved loss of life or limb or outlawry; a felon's goods were confiscated by the crown and his land was forfeited to the crown for a year and a day, after which it escheated to the felon's lord. the peace of the king now did not die with the king, but renewed automatically without an interval before the inauguration of a new king. notorious felons who would not consent or put themselves on inquests for felonies with which they were charged at royal courts were put in strong and hard imprisonment to persuade them to accept trial by assize. this inducement progressed into being loaded with heavy chains and placed on the ground in the worst part of the prison and being fed a only little water one day and a little bread the next. sometimes pieces of iron or stones were placed one another onto their prone bodies to persuade them to plead. this then developed into being loaded with as much iron as could be borne, and finally into being pressed to death ["peine forte et dure"]. many of these men chose to die by this pressing so that their families could inherit their property, which would have been forfeited if they had been convicted of serious crimes. the most common cases in the court of common pleas were "detinue" [wrongful detention of a good or chattel which had been loaned, rented, or left for safe-keeping with a "bailee", but belonged to the plaintiff], "debt" [for money due from a sale, for money loaned, for rent upon a lease for years, from a surety, promised in a sealed document, or due to arbitrators to whom a dispute had been submitted] and "account" [e.g. against bailiffs of manors, a guardian in socage, and partners]. it also heard estovers of wood, profit by gathering nuts, acorns, and other fruits in wood, corody [allowance of food], yearly delivery of grain, toll, tunnage, passage, keeping of parks, woods, forests, chases, warrens, gates, and other bailiwicks, and offices in fee. the itinerant justices gradually ceased to perform administrative duties on their journeys because landed society had objected to their intrusiveness. edward i substituted regular visitations of justices of assize for the irregular journeys of the itinerant justices. each one of four circuits had two justices of assize. from about 1299, these justices of assize heard cases of gaol delivery. their jurisdiction expanded to include serious criminal cases and breach of the king's peace. breaches of the forest charter laws were determined by justices of the king's forest, parks, and chases, along with men of assize. coroners' inquest procedures were delineated by statute and included describing in detail in the coroner's rolls every wound of a dead body, how many may be culpable, and people claiming to have found treasure who might be suspects. the precedent for punishment for treason was established by the conviction of a knight, david ab gruffydd, who had turned traitor to the welsh enemy, after fighting with edward and being rewarded with land, during the conquest of wales. he had plotted to kill the king. he was found guilty of treason by parliament and condemned to be dragged at the heels of horses for being a traitor to his knightly vows, hanged by the neck for his murders, cut down before consciousness left him to have his entrails cut out for committing his crimes during the holy week of easter, and his head cut off and his body divided into four parts for plotting against the king's life. the head was placed on the tower of london and his body sections were placed in public view at various other locations in england. this came to be known as "hanging, drawing, and quartering". prior to this the penalty had been imprisonment, usually followed by ransom. trial by combat is now limited to certain claims of enfeoffment of large land holding and is barred for land held in socage, burgage, or by marriage. assize is the usual manner of trial, but compurgation remains in the borough court long after it becomes obsolete in the royal courts. defendants no longer request assizes but are automatically put to them. numerous statutes protect the integrity of the courts and king's offices by double and treble damages and imprisonment for offenses such as bribery, false informers, conspiracy to falsely move or maintain pleas, champerty [covenant between a litigant and another for the other to have a part or profit in the award in return for maintaining the suit], conflict of interest by court officers taking part in a quarrel pending in court or working any fraud whereby common right may be delayed or disturbed. there had been many abuses, the most common of which was extortion by sheriffs, who gaoled people without cause to make them pay to be released. the 1275 prohibition of maintenance of a quarrel of a party in court by a non-party was extended in 1327 to all persons, including the king's councilors and ministers, and great men, e.g. by sending letters. in 1346, this prohibition specifically included prelates, earls, barons taking in hand quarrels other than their own, or maintaining them for gift, promise, amity, favor, doubt, or fear, in disturbance of law and hindrance of right. the reason given was that there had been persons disinherited, delayed or disturbed in their rights, and not guilty persons convicted or otherwise oppressed. all great men were required to put out of their service all maintainers who had been retained, and void their fees and robes, without giving them aid, favor, or comfort. this law was not obeyed. the king reserved to himself and his council in its judicial capacity the correction of all breaches of the law which the lower courts had failed to remedy, whether from weakness, partiality, corruption, or jury timidity, and especially when the powerful barons defied the courts. the chancery also sought to address causes which were impeded in their regular course, which often involved assaults, batteries, and forcible dispossessions. disputes within the royal household were administered by the king's steward. he received and determined complaints about acts or breaches of the peace within twelve miles around the king's person or "verge". he was assisted by the marshall in the "court of the hall" and by the clerk of the market when imposing fines for trading regulation violations in the "court of the market". ecclesiastical courts were successful in their competition with the secular courts for jurisdiction over testamentary matters [concerning wills] and succession [no will] to chattels. there were local courts of the vill, borough, manor, hundred, county, sheriff, escheator, and royal bailiff, with overlapping jurisdictions. the county court in its full session, that is, as it attended the itinerant justices on their visitation, contained the archbishops, bishops, priors, earls, barons, knights, and freeholders, and from each township four men and the reeve, and from each borough twelve burgesses. it was still the folkmote, the general assembly of the people. in 1293, suitors who could not spend 40s. a year within their county were not required to attend their county court. the most common plea in the hundred court was trespass. it also heard issues concerning services arising out of land, detention of chattels, small debts, wounding or maiming of animals, and personal assaults and brawls not amounting to felony. it met every three weeks. the sheriff held his turn twice a year and viewed frankpledge once a year. when edward i came to the throne, over half of the approximately 600 hundred courts had gone under the jurisdiction of a private lord owing to royal charter, prescriptive right, and usurpation. the sheriff's powers in these hundreds varied. in some, the sheriff had no right of entry. in the manor courts, actions of debt, detinue, and covenant were frequent. sometimes there are questions of a breach of warranty of title in agreements of sale of land. accusations of defamation were frequent; this offense could not be taken to the king's court, but it had been recognized as an offense in the anglo-saxon laws. in some cases, the damages caused are specifically stated. for instance, defamation of a lord's grain would cause other purchasers to forbear buying it. there are frequent cases of ordinary thefts, trespasses, and assaults. the courts did rough but substantial justice without distinction between concepts such as tort and contract. in fact, the action of covenant was the only form of agreement enforceable at common law. it required a writing under seal and awarded damages. their law was not technical, but elastic, and remedies could include injunctions, salary attachment, and performance of acts. the steward holding the manor court was often a lawyer. some pleas in the manors of the abbey of bec were: 1. hugh le pee in mercy (fine, 12d.) for concealing a sheep for half a year. pledges, simon of newmere, john of senholt 2. william ketelburn in mercy (fine, 13s.4d.) for divers trespasses. pledge, henry ketelburn. 3. hugh derwin for pasture, 6d. richard hulle for divers trespasses, 12d. henry stanhard for pasture, 6d. 4. william derwin for a trespass, 6d.; pledge, william sperling. 5. hugh hall gives the lord 12d. that he may have the judgment of the court as to a tenement and two acres of land, which he demands as of right, so he says. and it being asserted that the said land is not free[hold] let the court say its say. and the court says that the tenement and one of the two acres are of servile condition and that the other acre is of free condition. the case is reserved for the lord's presence. pledge, john brian. 6. john palmer is put in seisin of his father's tenement and gives the lord 53s.4d. as entry money. 7. william ketelburn gives the lord 6s.8d. that he may be removed from the office of reeve. pledge, robert serjeant. 8. william frith for subtraction of work, 6d. john reginald for the same, 6d. john of senholt, 12d. william ketelburn, 12d. 9. for the common fine to be paid on s. andrew's day, 100s. 10. it is presented by the chief pledges that godfrey serjeant has made default; also that john le pee has unlawfully thrown up a bank; therefore let it be set to rights. 11. robert smith is put in seisin of his father's tenement and gives the lord four pounds for entry money. pledge, robert serjeant. 12. william ketelburn for a trespass, 13s.4d. 13. william fleming gives four pounds for leave to contract [marriage] with widow susan. pledge, richard serjeant. 14. john mabely gives the lord 3s. to have the judgment of twelve men as to certain land whereof noah deforces him; pledges, richard smith, ralph bernard. the said jurors say that noah the fat has right; therefore etc. 15. agnes stampelove gives the lord 2s. for leave to come and go in the vill but to dwell outside the lord's land. pledge, richard smith. 16. godfrey tailor the younger for a trespass, 2s. 17. whereas godfrey tailor the younger has demanded against noah a farthing land, now the action is compromised in manner following:-godfrey for himself and his heirs remises to the said noah and his heirs all right and claim which he has or can have in the said farthing land by reason of the gift made by his grandfather john tailor. 18. agnes mabely is put in seisin of a farthing land which her mother held, and gives the lord 33s.4d. for entry money. pledges, noah, william askil. 19. the full court declares that in case any woman shall have altogether quitted the lord's domain and shall marry a freeman, she may return and recover whatever right and claim she has in any land; but if she shall be joined to a serf, then she cannot do this during the serf's lifetime, but after his death she may. 20. william alice's son is put in seisin of a bakehouse in the king's street, and shall keep up the house at his own cost and gives 12d. for entry money, and 10s. annual rent payable at three terms, viz. 3s.4d. at martinmas, 3s.4d. at lady day, 3s.4d. at christmas. pledges, adam clerk, john deboneir. 20. john son of alma demands a cottage which henry fleming holds and gives the lord 12d. for the oath and recognition of 12 men; pledge, richard jordan. the jurors say that henry fleming has the better right. 21. baldwin cobbler's son finds [as pledges] walter cobbler, roger of broadwater, robert linene, william frances, that notwithstanding his stay in london he will always make suit with his tithing and will at no time claim any liberty contrary to the lord's will and will come to the lord whenever the lord wills. 22. simon patrick gives the lord 12d. to have the judgment of the court as to a cottage of which the widow of geoffrey dogers deforces him; pledge, simon of strode. the said jurors say that the said simon has the better right. and the said simon remises and quit-claims all his right to his sister maud and her husband john horin, [who] gives the lord 10s. for entry money; pledges, simon patrick, john talk. 23. hugh wiking for not making suit at the lord's mill, 12d. 24. it was presented that william derwin and john derwin (fine, 12d.) committed a trespass against agnes dene, and the cry was raised, therefore etc. 25. hugh churchyard contracted [marriage] without the lord's leave; [fine] 12d. 26. let juliana forester be distrained for her default, also william moor. 27. john kulbel in mercy (fine, 12d.) for not producing gregory miller, and he is commanded to produce him at the next court. 28. hugh andrew's son gives the lord 4s. for leave to marry; pledge, robert serjeant. 29. juliana forester gives the lord 12d. in order that for the future no occasion may be taken against her for neglect of suit of court. 30. john franklain is put in seisin of his father's tenement and gives the lord 20s. for entry; pledge, robert serjeant. 31. henry cross gives the lord 4s. for license to marry; pledge, robert serjeant. 32. isabella warin gives the lord 4s. for leave to give her daughter mary in marriage; pledge, john serjeant. 33. it is presented by the whole township that ralph le war has disseised the lord of a moiety of a hedge, whereas it had often been adjudged by award of the court that the said hedge belongs as to one moiety to the lord and as to the other to ralph, and the said ralph claims and takes to his use the whole to the lord's damage etc. also they say that the said ralph holds overcolkescroft, which land by right is the lord's. 34. it is presented by unanimous verdict of the whole court that if anyone marries a woman who has right in any land according to the custom of the manor and is seised thereof by the will of the lord, and the said woman surrenders her right and her seisin into the hands of the lord and her husband receives that right and seisin from the hands of the lord, in such case the heirs of the woman are for ever barred from the said land and the said right remains to the husband and his heirs. therefore let william wood, whose case falls under this rule, hold his land in manner aforesaid. and for the making of this inquest the said william gives the lord 6s.8d. 35. the tenements of lucy mill are to be seized into the lord's hands because of the adultery which she has committed and the bailiff is to answer for them. the chief pledges present that cristina daughter of richard maleville has married at london without the lord's licence; therefore let the said richard be distrained. he has made fine with 12d. also that alice berde has done the same; therefore let her be distrained. also that robert fountain has committed a trespass against william gery; therefore the said robert is in mercy; pledge, humfrey; fine, 6d. also that richard maleville has drawn blood from stephen gust; therefore he is in mercy; fine, 2s. 36. geoffrey coterel in mercy for a battery; fine, 12d.; pledge, adam serjeant. 37. geoffrey coterel for trespass in the hay; fine, 6d.; pledge, alan reaper. 38. hugh of senholt in mercy for trespass in the green wood; fine, 6d. 37. hugh wiking in mercy for delay in doing his works; fine, 6d. hugh churchyard for trespass in [cutting] thorns; fine, 6d. thomas gold in mercy for trespass in the wood; fine, 3d.; pledge, robert grinder. 38. william dun in mercy for subtraction of his works due in autumn; fine, 2s. avice isaac for the same, 6d.; hugh wiking for the same, 6d.; agnes rede in mercy for her daughter's trespass in the corn [grain], 6d. 39. walter ash in mercy for not making suit to the lord's mill; fine, 6d. hugh pinel in mercy for diverting a watercourse to the nuisance of the neighbours; fine, 6d.; pledge, robert fresel. 40. john dun in mercy for carrying off corn [grain] in the autumn; pledge, adam white. alan reaper gives the lord 12d. on account of a sheep which was lost while in his custody. 41. adam white in mercy for bad mowing; fine, 6d. hugh harding in mercy for the same; fine, 6d. 42. the chief pledges present that henry blackstone (fine, 6d.), hugh churchyard (fine, 18d.), walter ash (fine, 6d.), henry of locksbarow (fine, 12d.), avice isaac (fine, 6d.), richard matthew (fine, 6d.), hugh wiking (fine,--), ralph dene (fine, 6d.), john palmer (fine, 12d.), john coterel (fine, 6d.), john moor (fine, 6d.), john cubbel (fine, 12d.), hugh andrew (fine, 6d.), philip chapman (fine, 6d.), john fellow (fine, 12d.), robert bailiff (fine, 6d.), alice squire (fine, 12d.), john grately (fine,--), richard hull (fine, 6d.), osbert reaper (fine, 6d.), and robert cross (fine, 6d.), have broken the assize of beer. also that henry of senholt, henry brown, hugh hayward, richard moor, juliana woodward, alice harding, peronel street, eleanor mead make default. also that walter ash (fine,--), john wiking (fine,--), john smart (fine,--), and henry coterel have married themselves without the lord's licence; therefore let them be distrained to do the will of the lord. 43. alan reaper for the trespass of his foal; fine, 6d. 44. philip chapman in mercy for refusing his gage to the lord's bailiff; fine, 3d. 45. william ash in mercy for trespass in the growing crop; fine, 6d. 46. john iremonger in mercy for contempt; fine, 6d. 47. the chief pledges present that william of ripley (fine, 6d.), walter smith (no goods), maud of pasmere (fine, 6d.), have received [strangers] contrary to the assize; therefore they are in mercy. 48. maud widow of reginald of challow has sufficiently proved that a certain sheep valued at 8d. is hers, and binds herself to restore it or its price in case it shall be demanded from her within year and day; pledges, john iremonger and john robertd; and she gives the lord 3d. for [his] custody [of it]. the court of hustings in london is empowered to award landlords their tenements for which rent or services are in arrears if the landlord could not distrain enough tenant possessions to cover the arrearages. wills are proven in the court of husting, the oldest court in london, which went back to the times of edward the confessor. one such proven will is: "tour (john de la) to robert his eldest son his capital messuage and wharf in the parish of berchingechurch near the land called 'berewardesland`. to agnes his wife his house called 'wyvelattestone', together with rents, reversions, etc. in the parish of s. dunstan towards the tower, for life; remainder to stephen his son. to peter and edmund his sons lands and rents in the parish of all hallows de berhyngechurch; remainders over in default of heirs. to agnes, wife of john le keu, fishmonger, a house situate in the same parish of berhyng, at a peppercorn [nominal] rent." the court of the mayor of london heard diverse cases, including disputes over goods, faulty or substandard goods, adulteration, selling food unfit for human consumption, enhancing the price of goods, using unlawful weighing beams, debts, theft, distraints, forgery, tavern brawling, bullying, and gambling. insulting or assaulting a city dignitary was a very serious crime; an attack on the mayor was once capitally punished. sacrilege, rape, and burglary were punished by death. apart from the death penalty, the punishment meted out the most was public exposure in the pillory, with some mark of ignominy slung round the neck. if the crime was selling bad food, it was burnt under the offender's nose. if it was sour wine, the offender was drenched in it. standing in the pillory for even one hour was very humiliating, and by the end of the day, it was known throughout the city. the offender's reputation was ruined. some men died in the pillory of shame and distress. a variation of the pillory was being dragged through the streets on a hurdle. prostitutes were carted through the streets in coarse rough cloth hoods, with penitential crosses in their hands. scolds were exposed in a "thewe" for women. in more serious cases, imprisonment for up to a year was added to the pillory. mutilation was rare, but there are cases of men losing their right hands for rescuing prisoners. the death penalty was usually by hanging. the following four london cases pertain to customs, bad grain, surgery, and apprenticeship, respectively. "john le paumer was summoned to answer richer de refham, sheriff, in a plea that, whereas the defendant and his society of bermen [carriers] in the city were sworn not to carry any wine, by land or water, for the use of citizens or others, without the sheriff's mark, nor lead nor cause it to be led, whereby the sheriff might be defrauded of his customs, nevertheless he caused four casks of wine belonging to ralph le mazun of westminster to be carried from the city of westminster without the sheriff's mark, thus defrauding the latter of his customs in contempt of the king etc. the defendant acknowledged the trespass. judgment that he remain in the custody of the sheriff till he satisfy the king and the court for offense." "walter atte belhaus, william atte belhous, robert le barber dwelling at ewelleshalle, john de lewes, gilbert le gras, john his son, roger le mortimer, william ballard atte hole, peter de sheperton, john brun and the wife of thomas the pelterer, stephen de haddeham, william de goryngg, margery de frydaiestrate, mariot, who dwells in the house of william de harwe, and william de hendone were attached to answer for forestalling all kinds of grain and exposing it, together with putrid grain, on the pavement, for sale by the bushel, through their men and women servants; and for buying their own grain from their own servants in deception of the people. the defendants denied that they were guilty and put themselves on their country. a jury of richard de hockeleye and others brought in a verdict of guilty, and the defendants were committed to prison til the next parliament." "peter the surgeon acknowledged himself bound to ralph de mortimer, by richard atte hill his attorney, in the sum of 20s., payable at certain terms, the said ralph undertaking to give peter a letter of acquittance [release from a debt]. this recognizance arose out of a covenant between them with regard to the effecting of a cure. both were amerced for coming to an agreement out of court. a precept was issued to summon all the surgeons of the city for friday, that an enquiry might be made as to whether the above peter was fitted to enjoy the profession of a surgeon." "thomas de kydemenstre, shoemaker, was summoned to answer william de beverlee, because he did not clothe, feed and instruct his apprentice thomas, william's son, but drove him away. the defendant said that the apprentice lent his master's goods to others and promised to restore them or their value, but went away against his wish; and he demanded a jury. subsequently, a jury of william de upton and others said the apprentice lent two pairs of shoes belonging to his master and was told to restore them, but, frightened by the beating which he received, ran away; further that the master did not feed and clothe his apprentice as he ought, being unable to do so, to the apprentice's damage 40d., but that he was now in a position to look after his apprentice. thereupon thomas de kydemenstre said he was willing to have the apprentice back and provide for him, and the father agreed. judgment that the master take back the apprentice and feed and instruct him, or that he repay to the father, the money paid to the latter, and that he pay the father the 40d. and be in mercy." a professional class of temporal attorneys whose business it is to appear on behalf of litigants is prominent in the nation. attorneys are now drawn from the knightly class of landed gentlemen, instead of ecclesiastical orders. since it was forbidden for ecclesiastics to act as advocates in the secular courts, those who left the clergy to become advocates adopted a close-fitting cap to hide their tonsures, which came to be called a "coif". the great litigation of the nation is conducted by a small group of men, as is indicated by the earliest year books of case decisions. they sit in court and will sometimes intervene as amicus curiae [friends of the court]. parliament refers difficult points of law to them as well as to the justices. these reports became so authoritative that they could be cited in the courts as precedent. groups of attorneys from the countryside who are appearing in london courts during term-time and living in temporary lodgings start to form guild-like fellowships and buy property where they dine and reside together, called the inns of court. they begin to think of themselves as belonging to a profession, with a feeling of responsibility for training the novices who sat in court to learn court procedures and attorney techniques. they invited these students to supper at the inns of court for the purpose of arguing about the day's cases. the inns of court evolved a scheme of legal education, which was oral and used disputations. thus they became educational institutions as well as clubs for practicing attorneys. the call to the bar of an inn was in effect a degree. to be an attorney one had to be educated and certified at the inns of court. they practice law full time. some are employed by the king. justices come to be recruited from among those who had passed their lives practicing law in court, instead of from the ecclesiastical orders. all attorneys were brought under the control of the justices. there are two types of attorney: one attorney appears in the place of his principal, who does not appear. the appointment of this attorney is an unusual and a solemn thing, only to be allowed on special grounds and with the proper formalities. for instance, a poor person may not be able to afford to travel to attend the royal court in person. the other one is the pleader-attorney, who accompanies his client to court and advocates his position with his knowledge of the law and his persuasiveness. in 1280, the city of london made regulations for the admission of both types of attorneys to practice before the civic courts, and for their due control. in 1292 the king directed the justices to provide a certain number of attorneys and apprentices to follow the court, who should have the exclusive right of practicing before it. this begins the process which will make the attorney for legal business an "officer of the court" which has appointed him. chapter 9 the times: 1348-1399 waves of the black death, named for the black spots on the body, swept over the nation. the black blotches were caused by extensive internal bleeding. the plague was carried in the blood of black rats and transmitted to humans by the bite of the rat flea, but this cause was unknown. the first wave of this plague, in 1348, lasted for three years and desolated the nation by about one half the population in the towns and one third in the country. people tried to avoid the plague by flight. the agony and death of so many good people caused some to question their belief in god. also, it was hard to understand why priests who fled were less likely to die than priests who stayed with the dying to give them the last rites. legal and judicial, as well as other public business, ceased for two years, interrupted by the plague. thus begins a long period of disorganization, unrest, and social instability. customary ways were so upset that authority and tradition were no longer automatically accepted. fields lay waste and sheep and cattle wandered over the countryside. local courts could seldom be held. some monasteries in need of cash sold annuities to be paid in the form of food, drink, clothing, and lodging during the annuitant's life, and sometimes that of his widow also. guilds and rich men made contributions to the poor and ships with provisions were sent to various parts of the country for the relief of starving people. in london, many tradesmen and artisans formed parish fraternities which united people of all social levels and women on almost equal terms with men, in communal devotion and mutual support, such as help in resolving disputes, moral guidance, money when needed, and burial and masses. farm workers were so rare that they were able to demand wages at double or triple the pre-plague rate. the pre-plague had been 4d.6d. daily for masons, carpenters, plasterers, and tilers and 3d. for their laborers. these laborers could buy 12 cheap loaves, 3 gallons of ale, and a gallon of cheap wine or half a pair of shoes. prices did not go up nearly as much as wages. villeins relinquish their tenements, and deserted their manors, to get better wages elsewhere. they became nomadic, roaming from place to place, seeking day work for good wages where they could get it, and resorting to thievery on the highways or beggary where they could not. the robin hood legends were popular among them. in them, robin hood is pure outlaw and does not contribute money to the poor. nor does he court maid marion. they spread political songs among each other, such as: "to seek silver to the king, i my seed sold; wherefore my land lieth fallow and learneth to sleep. since they fetched my fair cattle in my fold; when i think of my old wealth, well nigh i weep. thus breedeth many beggars bold; and there wakeneth in the world dismay and woe, for as good is death anon as so for to toil." groups of armed men took lands, manors, goods, and women by force. the villeins agreed to assist each other in resisting by force their lords' efforts to return them to servitude. a statute of laborers passed in 1351 for wages to be set at the pre-plague rates was ineffectual. justices became afraid to administer the law. villeins, free peasants, and craftsmen joined together and learned to use the tactics of association and strikes against their employers. the office of justice of the peace was created for every county to deal with rioting and vagrants. cooperation by officials of other counties was mandated to deal with fugitives from its justice. the black death visited again in 1361 and in 1369. the black death reduced the population from about 5 million to about 2 1/2 million. it was to rise to about 4 million by 1600. when there were attempts to enforce the legal servitude of the villeins, they spread rhymes of their condition and need to revolt. a secret league, called the "great society" linked the centers of intrigue. a high poll tax, graduated from 20s. to 12d., that was to be raised for a war with france, touched off a spontaneous riot all over the nation in 1381. this tax included people not taxed before, such as laborers, the village smith, and the village tiler. each area had its own specific grievances. there was no common political motive, except maladministration in general. in this peasants' revolt, mobs overran the counties around london. the upper classes fled to the woods. written records of the servitude of villeins were burned in their halls, which were also looted. title deeds of landlords were burned. rate rolls of general taxation were destroyed. prisoners were released from gaols. men connected with tax collection, law enforcement, attorneys, and alien merchants were beheaded. the chief justice was murdered while fleeing. the archbishop, who was a notoriously exploitive landlord, the chancellor, and the treasurer were murdered. severed heads were posted on london bridge. a mob took control of the king's empty bedchamber in the tower. the villeins demanded that service to a lord be by agreement instead of by servitude, a commutation of villein service for rents of a maximum of 4d. per acre yearly, abolition of a lord's right for their work on demand (e.g. just before a hail storm so only his crops were saved), and the right to hunt and fish. the sokemen protested having to use the lord's mill and having to attend his court. the revolt was suppressed and its leaders punished. the king issued proclamations forbidding unauthorized gatherings and ordering tenants of land to perform their customary services. the poll tax was dropped. for the future, the duty to deal with rioting and vagrants was given to royal justices, sheriffs, mayors, bailiffs, and constables as well as the justices of the peace. there was a high peace in each hundred and a petty constable in each parish. justices of the peace could swear in neighbors as unpaid special constables when disorder broke out. the sheriff was responsible for seeing that men of the lower classes were organized into groups of ten for police and surety purposes, and for holding of hundred and county courts, arresting suspects, guarding prisoners awaiting trial, carrying out the penalties adjudged by the courts, and collecting crown revenue through his bailiffs. royal writs were addressed to the sheriff. because many sheriffs had taken fines and ransoms for their own use, a term limit of one year was imposed. sheriffs, hundreders, and bailiffs had to have lands in the same counties or bailiwicks [so they could be held answerable to the king]. efforts were made to keep laborers at the plough and cart rather than learn a craft or entering and being educated by the church. the new colleges at the universities ceased to accept villeins as students. due to the shortage of labor, landlords' returns had decreased from about 20% to about 5%. but some found new methods of using land that were more profitable than the customary services of villeins who had holdings of land or the paid labor of practically free men who paid a money rent for land holdings. one method was to turn the land to sheep breeding. others leased their demesne land, which transferred the burden of getting laborers from the landlord to the lessee-tenant. the payment was called a "farm" and the tenant a "farmer". first, there were stock-and-land leases, in which both the land and everything required to cultivate it were let together. after 50 years, when the farmers had acquired assets, there were pure land leases. landlords preferred to lease their land at will instead of for a term of years to prevent the tenant from depleting the soil with a few richer crops during the last years of his tenancy. the commutation of labor services into a money payment developed into a general commutation of virtually all services. lords in need of money gladly sold manumissions to their villeins. the lord and lady of some manors now ate with their family and entertained guests in a private parlor [from french word 'to speak"] or great chamber, where they could converse and which had its own fireplace. the great chamber was usually at the dais end of tahe great hall. the great hall had been too noisy for conversation and now was little used. there were also separate chambers or bed-sitting rooms for guests or members the family or household, in which one slept, received visitors, played games, and occasionally ate. some farmers achieved enough wealth to employ others as laborers on their farms. the laborers lived with their employer in his barn, sleeping on hay in the loft, or in mud huts outside the barn. the farmer's family lived at one end of the barn around an open fire. their possessions typically were: livestock, a chest, a trestle table, benches, stools, an iron or bronze cauldron and pots, brooms, wooden platters, wooden bowls, spoons, knives, wooden or leather jugs, a salt box, straw mattresses, wool blankets, linen towels, iron tools, and rush candles [used the pith of a rush reed for the wick]. those who could not afford rush candles could get a dim light by using a little grease in a shallow container, with a few twisted strands of linen thread afloat in it. the peasants ate dark bread and beans and drank water from springs. milk and cheese were a luxury for them. those who could not afford bread instead ate oat cakes made of pounded beans and bran, cheese, and cabbage. they also had leeks, onions, and peas as vegetables. some farmers could afford to have a wooden four-posted bedstead, hens, geese, pigs, a couple of cows, a couple of sheep, or two plow oxen. july was the month when the divide between rich and poor became most apparent. the rich could survive on the contents of their barns, but the poor tried to survive by grinding up the coarsest of wheat bran and shrivelled peans and beans to make some sort of bread. grain and bread prices soared during july. farming still occupied the vast majority of the population. town inhabitants and university students went into the fields to help with the harvest in the summer. parliament was suspended during the harvest. town people had more wealth than country people. most townspeople slept in nightgowns and nightcaps in beds with mattresses, blankets, linen sheets, and pillows. beds were made every morning. bathing was by sponging hot water from a basin over the body, sometimes with herbs in it, rinsing with a splash of warm water, and drying off with a towel. tubs used only for baths came into use. there were drapery rugs hung around beds, hand-held mirrors of glass, and salt cellars. the first meal of the day was a light breakfast, which broke the fast that had lasted the night. meals were often prepared according to recipes from cook books which involved several preparation procedures using flour, eggs, sugar, cheese, and grated bread, rather than just simple seasoning. menus were put together with foods that tasted well together and served on plates in several courses. sheffield cutlery was world famous. table manners included not making sounds when eating, not playing with one's spoon or knife, not placing one's elbows on the table, keeping one's mouth clean with a napkin, and not being boisterous. there were courtesies such as saying "good morning" when meeting someone and not pointing one's finger at another person. king richard ii invented the handkerchief for sneezing and blowing one's nose. there were books on etiquette. cats were the object of superstition, but there was an ancient and honorable order of the men who stroke cats. new burgesses were recruited locally, usually from within a 20 mile radius of town. most of the freemen of the larger boroughs, like canterbury and london, came from smaller boroughs. an incoming burgess was required to buy his right to trade either by way of a seven year apprenticeship or by payment of an entry fee. to qualify, he needed both a skill and social respectability. towns started acquiring from the king the right to vacant sites and other waste places, which previously was the lord's right. the perpetuality of towns was recognized by statutes of 1391, which compared town-held property to church-held property. the right of london to pass ordinances was confirmed by charter. some towns had a town clerk, who was chief of full-time salaried officers. there was a guildhall to maintain, a weigh-house, prison, and other public buildings, municipal water supplies, wharves, cranes, quays, wash-houses, and public lavatories. after the experience of the black death, some sanitary measures were taken. the notorious offenders in matters of public hygiene in the towns, such as the butchers, the fishmongers, and the leather tanners were assigned specific localities where their trades would do least harm. the smiths and potters were excluded from the more densely populated areas because they were fire risks. in the town of salisbury, there was butcher row, ox row, fish row, ironmongers' row, wheelwrights' row, smiths' row, pot row, silver street, cheese market, and wool market. fresh water was brought into towns by pipe or open conduit as a public facility, in addition to having public wells. in london, a conduit piped water underground to a lead tank, from which it was delivered to the public by means of pipes and brass taps in the stone framework. this was london's chief water supply. water carriers carried water in wooden devices on their backs to houses. the paving and proper drainage of the streets became a town concern. building contracts began specifying the provision of adequate cesspits for the privies at town houses, whether the latrines were built into the house or as an outhouse. also, in the better houses, there grew a practice of carting human and animal fecal matter at night to dung heaps outside the city walls. there was one public latrine in each ward and about twelve dung-carts for the whole city. country manor houses had latrines on the ground floor and/or the basement level. stairwells between floors had narrow and winding steps. in london, the goldsmiths, merchant taylors [tailors], skinners, and girdlers bought royal charters, which recognized their power of self-government as a company and their power to enforce their standards, perhaps throughout the country. the goldsmiths, the mercers, and the saddlers became the first guilds to receive, in 1394-5, charters of incorporation, which gave them perpetual existence. as such they could hold land in "mortmain" [dead hand], thus depriving the king of rights that came to him on the death of a tenant-in-chief. they were authorized to bestow livery on their members and were called livery companies. the liverymen [freemen] of the trading companies elected london's representatives to parliament. in all towns, the organization of craft associations spread rapidly downwards through the trades and sought self-government. craft guilds were gaining much power relative to the old merchant guilds in governing the towns. the greater crafts such as the fishmongers, skinners, and the corders (made rope, canvas, and pitch) organized and ultimately were recognized by town authorities as self-governing craft guilds. the building trade guilds such as the tilers, carpenters, masons, and joiners, became important. masons were still itinerant, going to sites of churches, public buildings, or commanded by the king to work on castles. the guild was not necessarily associated with a specific product. for instance, a saddle and bridle were the result of work of four crafts: joiner (woodworker), painter, saddler (leather), and lorimer (metal trappings). in london in 1392 craft guilds included: baker, fishmonger (cut up and sold fish), fruiterer, brewer, butcher, bird dealer, cook, apothecary (sold potions he had ground up), cutler (made knives and spoons), barber, tailor, shoemaker, glover (made gloves), skinner (sold furs), girdler (made girdles of cloth to wear around one's waist), pouchmaker, armorer, sheathmaker, weaver, fuller, painter, carpenter, joiner (woodworker who finished interior woodwork such as doors and made furniture), tiler, mason (cut stone for buildings), smith (made metal tools for stonemasons and builders), tallow chandler (made candles and sometimes soap from the fat and grease the housewife supplied), wax chandler (made candles), stirrup maker, spurrier (made spurs), and hosteler (innkeeper). however, the merchant guilds of the goldsmiths, vintners (sold wine), mercers (sold cloth), grocers, and drapers (finished and sold english cloth) were still strong. it was a long custom in london that freemen in one company could practice the trade of another company. there were paint mills and saw mills replacing human labor. there were apothecary shops and women surgeons. women who earned their own living by spinning were called "spinsters". some prices in london were: a hen pastry 5d., a capon pastry 8d., a roast pheasant 13d., a roast heron 18d., roast goose 7d., a hen 4d., a capon 6d., three roast thrushes 2d., ten larks 3d., ten finches 1d, and ten cooked eggs 1d. many of the guilds bought sites on which they built a chapel, which was later used as a secular meeting place. the guild officers commonly included an alderman, stewards, a dean, and a clerk, who were elected. the guild officers sat as a guild court to determine discipline for offences such as false weights or measures or false workmanship or work and decided trade disputes. the brethren in guild fraternity were classified as masters, journeymen, or apprentices. they were expected to contribute to the support of the sick and impoverished in their fellowship. their code required social action such as ostracizing a man of the craft who was living in adultery until he mended his ways. the rules of the company of glovers were: 1. none but a freeman of the city shall make or sell gloves. 2. no glover may be admitted to the freedom of the city unless with the assent of the wardens of the trade. 3. no one shall entice away the servant of another. 4. if a servant in the trade makes away with his master's chattels to the value of 12d., the wardens shall make good the loss; and if the servant refuses to be judged by the wardens, he shall be taken before the mayor and aldermen. 5. no one may sell his goods by candle-light. 6. any false work found shall be taken before the mayor and aldermen by the wardens. 7. all things touching the trade within the city between those who are not freemen shall be forfeited. 8. journeymen shall be paid their present rate of wages. 9. persons who entice away journeymen glovers to make gloves in their own houses shall be brought before the mayor and aldermen. 10. any one of the trade who refuses to obey these regulations shall be brought before the mayor and aldermen. cordwainers [workers in soft cordovan leather from spain, especially shoes] of good repute petitioned the city of london in 1375 for ordinances on their trade as follows: "to the mayor and aldermen of the city of london pray the good folks of the trade of cordwainers of the same city, that it may please you to grant unto them the articles that follow, for the profit of the common people; that so, what is good and right may be done unto all manner of folks, for saving the honor of the city and lawfully governing the said trade. in the first place that if any one of the trade shall sell to any person shoes of bazen [sheep-skin tanned in oak or larch-bark] as being cordwain, or of calf-leather for ox-leather, in deceit of the common people, and to the scandal of the trade, he shall pay to the chamber of the guildhall, the first time that he shall be convicted thereof, forty pence; the second time, 7s. half a mark; and the third time the same, and further, at the discretion of the mayor and aldermen. also that no one of the trade shall keep house within the franchise if he be not free [invested with the rights or privileges] of the city and one knowing his trade, and that no one shall be admitted to the freedom without the presence of the wardens of the trade bearing witness to his standing, on the pain aforesaid. also if any one of the trade shall be found offending touching the trade, or rebellious against the wardens thereof, such person shall not make complaint to any one of another trade, by reason of the discord or dissension that may have arisen between them; but he shall be ruled by the good folks of his own trade. and if he shall differ from them as acting against right, then let the offense be adjudged upon before the mayor and aldermen; and if he be found rebellious against the ordinance, let him pay to the chamber the sum above mentioned. also that no one of the trade shall entice or purloin the servant of another from the service of his master by paying him more than is ordained by the trade, on the pain aforesaid. also that no one shall carry out of his house any wares connected with his trade for sale in market or elsewhere except only at a certain place situated between soperesland and the conduit; and that at a certain time of the day, that is to say, between prime [the first hour of the day] and noon. and that no shoes shall exceed the measure of seven inches, so that the wares may be surveyed by the good folks of the trade, because of the deceit upon the common people that might ensue and the scandal of the trade, on the pain aforesaid. also that no one shall expose his wares openly for sale in market on sundays at any place, but only within his own dwelling to serve the common people, on the pain aforesaid. also that if any one sells old shoes, he shall not mix new shoes among the old in deceit of the common people and to the scandal of the trade, on the pain aforesaid." smithfield was a field outside the city gates at which horses were sold and raced. in 1372, the horsedealers and drovers petitioned for a tax on animals sold there to pay for cleaning the field. the city ordinance reads as follows: "on wednesday next after the feast of st. margaret the virgin came reputable men, the horsedealers and drovers, and delivered unto the mayor and aldermen a certain petition in these words: 'to the mayor, recorder, and aldermen show the dealers of smithfield, that is to say, the coursers and drovers, that for the amendment of the said field they have granted and assented among them that for the term of three years next ensuing after the date of this petition for every horse sold in the said field there shall be paid one penny, for every ox and cow one half-penny, for every eight sheep one penny, and for every swine one penny by the seller and the same by the purchaser who buys the same for resale.` afterwards, on the eleventh day of august in the same year, adam fernham, keeper of the gaol at newgate, hugh, averelle, bailiff of smithfield, and william godhewe, weaver, were chosen and sworn faithfully to collect and receive the said pennies in form aforesaid and to clean the field of smithfield from time to time during such term of three years when necessary." many london houses were being made from stone and timber and even brick and timber, instead of just timber and mud. however, chimneys were still a luxury of the rich. they were made of stone, tile, or plaster. there were windows of glass and a guild of glaziers was chartered by the king. a typical merchant's house had a cellar; a ground floor with a shop and storage space; a first floor with a parlor to receive guests, a spacious hall for dining, and perhaps a kitchen; and at the top, a large family bedroom and a servant's room. many single-roomed houses added a second-floor room for sleeping, which was approached by a wooden or stone staircase from the outside. their goods were displayed on a booth outside the door of the house or hung in the windows. they were stored at night in the cellar. over the booths swung huge signs, which had to be nine feet above street level to allow a man on horseback to ride underneath. there were no sidewalks. street repair work for wages was supervised by a stone master. the streets sloped down from the middle so that the filth of the streets would run down the sides of the road. there were many wood chips in the streets due to cutting up of firewood before taking it indoors. people often threw the rubbish from their houses onto the street although they were supposed to cart it outside the city walls and to clean the frontage of their houses once a week. dustmen scavenged through the rubbish on the streets. pigs and geese were not longer allowed to run at large in the streets, but had to be fed at home. there were other city rules on building, public order, the use of fountains, precautions against fire, trading rights in various districts, closing time of taverns, and when refuse could be thrown into the streets, e.g. nighttime. aldermen were constantly making rounds to test measures and weights, wine cups, the height of tavern signs, and the mesh of the fishing nets, which had to be at least two inches wide. they saw that the taverns were shut when curfew was rung and arrested anyone on the street after curfew who had a weapon, for no one with a sword was allowed on the streets unless he was some great lord or other substantial person of good reputation. wards provided citizens to guard the gates in their respective neighborhood and keep its key. the city was so dense that nuisance was a common action brought in court, for instance, vegetable vendors near a church obstructing passageway on the street or plumbers melting their solder with a lower than usual shaft of the furnace so smoke was inhaled by people nearby. crime in london was rare. murder, burglary, highway robbery, and gross theft were punishable by hanging. forgery, fraud, was punishable by the placement in the pillory or stocks or by imprisonment. perjury was punished by confession from a high stool for the first offense, and the pillory for the second. slander and telling lies were punished by the pillory and wearing a whetstone around one's neck. there was an ordinance passed against prostitutes in 1351. london as well as other port towns had not only prostitutes, but syphillus. prominent londoners sought to elevate their social position by having their family marry into rural landholders of position. for poor boys with talent, the main routes for advancement were the church, the law, and positions in great households. many master freemasons, who carved freestone or finely grained sandstone and limestone artistically with mallet and chisel, left the country for better wages after their wages were fixed by statute. the curvilinear gothic style of architecture was replaced by the perpendicular style, which was simpler and cheaper to build. church steeples now had clocks on them with dials and hands to supplement the church bell ringing on the hour. alabaster was often used for sepulchral monuments instead of metal or stone. with it, closer portraiture could be achieved. in the 1300s and 1400s the london population suffered from tuberculosis, typhus, influenza, leprosy, dysentery, smallpox, diphtheria, measles, heart disease, fevers, coughs, cramps, catarrhs and cataracts, scabs, boils, tumors, and "burning agues". there were also many deaths by fires, burning by candles near straw beds when drunk, falling downstairs when drunk, and drowning in the river or wells. children were often crushed by carts, trampled by horses, or mauled by pigs. towns recognized surgery as a livelihood subject to admission and oath to serve the social good. master surgeons were admitted to practice in 1369 in london in full husting before the mayor and the aldermen and swore to: faithfully serve the people in undertaking their cures, take reasonably from them, faithfully follow their calling, present to the said mayor and aldermen the defaults of others undertaking, so often as should be necessary; to be ready, at all times when they should be warned, to attend the maimed or wounded and others, to give truthful information to the officers of the city as to such maimed, wounded, or others whether they be in peril of death or not, and to faithfully do all other things touching their calling. some young girls of good families were boarded at nunneries to be taught there. some upper class widows retired there. only women were allowed to be present at a birth, at which they spread the knowledge of midwifery. as usual, many women died giving birth. various ways to prevent pregnancy were tried. it was believed that a baby grew from a seed of the father planted in the woman's body. infant mortality was especially high in boroughs and burgess family lines usually died out. a three-generation family span was exceptional in the towns, despite family wealth. children's sweets included gingerbread and peppermint drops. after the plague, gentlemen no longer had their children learn to speak norman. the grammar schools taught in english instead of norman as of 1362. bishops began to preach in english. english became the official language of parliament, in 1363, and the courts, replacing norman and latin. a will in 1389 in which a wealthy citizen arranges for one son to become a attorney and the other a merchant: "will of william de tonge, citizen of london: one hundred marks [1,333s.] each to my two sons. and i will that my said two sons shall live upon the profits of the money bequeathed to them above until the age of twenty years. and if my said two sons be well learned in grammar and adorned with good manners, which shall be known at the end of twenty years, and the elder son wish to practice common law, and if it is known that he would spend his time well in that faculty, i will that over and above the profit of the said one hundred marks he shall have yearly from my rents for the term of seven years five marks [67s.]. and if he should waste his time aforesaid, or if he should marry foolishly and unsuitably, i will that he receive nothing more of the said five marks. and if younger son wishes to attend the university of oxford or to establish himself well in the mystery of a merchant after the age of twenty years, and [if] there be knowledge of his praiseworthy progress in his faculty or his carefulness in trading ... i will that he shall receive five marks yearly in the manner described above for his maintenance, over and above the profit of the said one hundred marks to him bequeathed, for the space of seven years; and if he behave himself otherwise, i will that thereupon he be excluded from the said five marks. and in case the said bequest of 200 marks [2,667s.] to him and his brother shall be annulled so that he shall have nothing therefrom ... then the said 200 marks shall be spent upon all the yearly chaplains who can be had to celebrate divine service in the church of all hallows for my soul." england was still an agricultural rather than a manufacturing country. imported were cloth, silks, linen, velvets, furs, glass, wines, candles, millstones, amber, iron, and mercury. exported were wool, leather, lead, tin, and alabaster for sculpturing. merchant adventurers came to manufacture cloth good enough for export and began to buy up raw wool in such quantity that its export declined. they took their cloth abroad to sell, personally or by agents. an oxford theologian and preacher, john wyclif, voiced the popular resentment of the materialism of the church, benefit of clergy, immorality of priests, and the selling of indulgences and pardons. encouraged by the king, he argued against the supremacy of the papal law over the king's courts and against payments to the papacy. he opined that the church had no power to excommunicate. the friars had become mere beggars and the church was still wealthy. he proposed that all goods should be held in common by the righteous and that the church should hold no property but be entirely spiritual. he believed that people should rely on their individual consciences. he thought that the bible should be available to people who could read english so that the people could have a direct access to god without priests or the pope. towards this end, he translated it from latin into english in 1384. his preachers spread his views throughout the country. the church then possessed about one-third of the land of the nation. william of ockham, an englishman educated at oxford and teaching theology in paris, taught that the primary form of knowledge came from experience gained through the senses and that god might cause a person to think that he has intuitive knowledge of an existent object when there is in fact no such object. most great lords were literate. many stories described good men, who set an example to be followed, and bad men, whose habits were to be avoided. stories were written about pilgrimage vacations of ordinary people to religious sites in england. will langland's poem "the vision of william concerning piers plowman" portrays a pilgrimage of common people to the shrine of truth led by a virtuous laborer. mystics wrote practical advice with transcendental teaching, for instance "scale of perfection" attributed to walter hilton and "cloud of unknowing". richard rolle wrote about spiritual matters, probably the "prick of conscience". richard de bury wrote "philobiblon" about book lovers. jean froissart wrote the "chronicles" on knights. courtly ideals were expressed in "sir gawaine and the grene knyght", wherein the adventures of the hero, an arthur knight, are allegorical in the struggle against the world, the flesh, and the devil (1370). "pearl" eulogized all that is pure and innocent on the event of the death of a two year old child. geoffrey chaucer was a squire and diplomat of the king. his "tales of the canterbury pilgrims" portrayed characters of every social class, including the knight with his squire, abbot, prioress, nun, priest, monk, friar, poor parson of the country, summoner (who enforced the jurisdiction and levied the dues of the church courts), pardoner (sold pardons from the pope), scholar, attorney, doctor, merchant, sailor, franklin, yeoman, haberdasher, tapestrymaker, ploughman, cook, weaver, dyer, upholsterer, miller, reeve, carpenter. there were chaucer stories about a beautiful and virtuous wife disliked by her mother-in-law, the difficulty of marriage between people of different religions, the hatred of a poor person by his brother and his neighbor, rich merchants who visited other kingdoms, the importance of a man himself following the rules he sets for other people's behavior, the spite of a man for a woman who rejected him, the relative lack of enthusiasm of a wife for sex as compared to her husband, a mother giving up her own comfort for that of her child, the revenge killing of a murderer by the dead man's friends, the joy of seeing a loved one after years of separation, that life is more sad than happy, that lost money can be retrieved, but time lost is lost forever. other stories in the canterbury tales were about two men who did not remain friends after they fell in love with the same woman, about a child who preferred to learn from an older child than from his school-teacher, about a wife who convinced her husband not to avenge her beating for the sake of peace, about a man who woke up from bad dreams full of fear, about a man wanting to marry a beautiful woman but later realizing a plain wife would not be pursued by other men, about a man who drank so much wine that he lost his mental and physical powers, about a woman who married for money instead of love, about a man who said something in frustration which he didn't mean, about a person brought up in poverty who endured adversity better than one brought up in wealth, about a wife who was loving and wise, about a good marriage being more valuable than money, about a virgin who committed suicide rather than be raped, about a wife persuaded to adultery by a man who said he would otherwise kill himself, about three men who found a pile of gold and murdered each other to take it all, about an angry man who wanted to kill, about a malicious man who had joy in seeing other men in trouble and misfortune, about a man whose face turned red in shame, about a wife expecting to have half of what her husband owned. paper supplemented parchment, so there were more books. political songs and poems were written about the evil times of king edward ii, the military triumphs of king edward iii, and the complaints of the poor against their oppressors, such as "song of the husbandman". john gower wrote moralizing poems on the villein's revolt, the sins of the clergy and attorneys, and the bad rule of king richard ii, who in 1377 succeeded edward iii. robin hood ballads were popular. the minstrel, who was a honorable person, replaced the troubadour of older times. there were many colleges at oxford and cambridge due to the prohibition of gifts to the church. laymen instead of ecclesiastics were appointed as chancellor. the masters at oxford got rid of ecclesiastical supervision by a bishop and archdeacon by 1368. one could be admitted as a student at age thirteen. the rate of maintenance for a student was 10d. weekly. a bachelor of arts degree was granted after four years of study and an oral exam. required reading in 1340 for the bachelor's degree was the new logic of aristotle ("prior and posterior analytics" e.g. on syllogistic logic and deduction, the "topics", or the "sophistical refutations", e.g. logical fallacies such as from 'all a are b' to 'all b are a'), and a selection from these aristotle works on physics: "of heaven and earth", "on the soul", "of meteors", "of birth and decay", or "of feeling and what is felt" with "of memory and recollection" and "of sleep and waking", or "of the movement of animals" with "of minor points in natural history". a master of arts degree could be awarded after three more years of study and teaching. a doctorate degrees in theology required ten more years of study. a doctorate in civil or canon law required eight more years. a man with a degree in canon law who wanted to practice in a certain bishop's court had to first satisfy this bishop of his competence. another source of legal learning was in london, where the guilds gave rise to the inns of court. they used the register of writs, the case law of the year books, and disputation to teach their students. for a doctorate in medicine from oxford or cambridge, five more years plus two years of practice were required. surgery was not taught because it was considered manual labor, and there was some feeling that it was a sacrilege and dishonorable. urinalysis and pulse beat were used for diagnosis. epilepsy and apoplexy were understood as spasms inside the head. it was known what substances served as laxatives and diuretics. teeth were extracted, eye cataracts were removed with a silver needle, and skin from the arm was grafted onto a mutilated face. englishmen who had collected books on philosophy, medicine, astronomy, and history and literature books from the continent gave their collections to the universities, which started their libraries. marco polo's discoveries on his journey to china were known. the requirements of elementary and higher studies were adjusted in 1393 and began the public school system. william of wykeham's school, st. mary college of winchester in oxford was the prototype. the curriculum was civil law, canon law, medicine, with astronomical instruments that students made, theology, and the arts. the arts textbooks were still grammar, logic, donatus, and aristotle. many laymen were literate, for instance country gentry, merchants, and craftsmen. laymen instead of clerics were now appointed to the great offices of state. parliament met about twice a year and lasted from two weeks to several months. there was a well-defined group of about fifty barons and a few spiritual peers who were always summoned to parliament and who composed a house of lords. "peer" now meant a member of the house of lords. all peers had the right to approach the king with advice. the baron peers reasoned that the custom of regular attendance was a right that should be inherited by the eldest son, or by a female heir, if there were no male heirs. however, the theory of nobility by blood as conveying political privilege had no legal recognition. no female could attend parliament; the husband of a baronness attended parliament in her stead. edward iii and richard ii created new peers with various titles of dignity, such as duke and marquess, which were above barons and earls. the dukes and marquesses were identified with a territorial designation such as an english county or county town. whenever a parliament was assembled the commons were present. the commons was composed of representatives from 100 boroughs and 37 counties. each new parliament required an election of representatives. the members of the commons were generally the most prominent and powerful economic and political figures of the county and were repeatedly re-elected. the electors were usually influenced by the sheriff or a powerful lord who suggested suitable men. the wealthy merchants typically represented the boroughs and paid much of the taxes. under edward iii, the commons took a leading part in the granting of taxes and the presentation of petitions and became a permanent and distinct body, the house of commons, with a spokesman or "speaker", chosen by the crown, and a clerk. the speaker came to be an intermediary between the commons and the king and between the commons and the lords. a clerk of parliament registered its acts and sat with the lords. a clerk of the crown superintended the issue of writs and the receipt of the returns and attested the signature of the king on statutes. it became a regular practice for the chancellor to open parliament with an opportunity to present petitions after his opening speech. the king then referred them to certain peers and justices, who decided to which court, or parliament, they should be sent. during the 1300s, the number of barons going to parliament gradually decreased. at the 1376 parliament, ("the good parliament") the commons, which formerly had only consented to taxes, took political action by complaining that the king's councilors had grown rich by war profiteering at the cost of impoverishing the nation and the people were too poor to endure any more taxation for the war and held a hearing on financial malfeasance and dishonesty of two ministers. the chamberlain had extorted enormous sums, had intercepted fines meant for the king's treasury, and had sold a castle to the enemy. the steward had bought debts of the king's. the house of lords, the high court of parliament, found the charges proved and dismissed them permanently from office. this established the constitutional means for impeachment and prosecution by the commons and removal by the house of lords of ministers. by this process, there could be no royal intimidation, as there could be in the ordinary courts. the commons demanded that its members be elected by county citizens rather than appointed by the sheriff. the roles of parliament and the king's council are starting to differentiate into legislative and executive, respectively. the legislative function is law-making and the executive is regulation-making that refines and effectuates the laws of parliament. but the legislative, executive, and judicial authorities have not as yet become so completely separated that they cannot on occasion work together. sheriffs dealt directly with the king instead of through an earl. from 1150 to 1400, resistance was an ordinary remedy for political disagreements. if a popular leader raised his standard in a popular cause, an irregular army could be assembled in a day. (there was no regular army, since england was protected by the sea from invasion.) so misgovernment by a king would be quickly restrained. society recovered quickly from conflict and civil war because the national wealth consisted chiefly in flocks and herds and in the simple buildings inhabited by the people. in a week after armed resistance, the agricultural worker was driving his team. there was little furniture, stock of shops, manufactured goods, or machinery that could be destroyed. to support a war with france in 1353, the staple was reinstated by statute of 1353 after an experiment without it in which profits of a staple went to staples outside the nation. wool exports were inspected for quality and taxed through his officials only at the designated staple ports. these officials included collectors, controllers, searchers [inspectors], surveyors, clerks, weighers, and crane-keepers. wool, woolfells, leather, and lead sold for export had to go through the staple town. the penalty was forfeiture of lands, tenements, goods, and chattel. (the staple statute remained basically unchanged for the next 200 years.) the mayor and constables of the staple were elected annually by the native and foreign merchants of the place. the mayor gave validity to contracts for a set fee, by seal of his office. he and the constables had jurisdiction over all persons and things touching the staple, which was regulated by the law merchant in all matters of contract, covenant, debt, and felonies against foreign merchants. a hue and cry was required to be raised and followed for anyone taking a cart of merchandise or slaying a merchant, denizen [resident alien] or alien, or the town would answer for the robbery and damage done. in 1363, calais, a continental town held by the english, became the staple town for lead, tin, cloth, and wool and was placed under a group of london capitalists: the merchants of the staple. all exports of these had to pass through calais, where customs tax was collected. guns and cannon were common by 1372. in the 1300s and 1400s, the king relied on mercenaries hired directly or by contract with his great nobles for foreign wars. the king reimbursed the contractors with the profits of war, such as the ransoms paid by the families of rich prisoners. the fighting men supplemented their pay by plunder. featherbeds and blooded horses were favorite spoils of war brought back to england from the continent. as new techniques with footmen came into being, the footmen became the core of the army and the knightly abilities of the feudal tenants-in-chief became less valuable. many lords got men to fight with them by livery and maintenance employment agreements such as this one of 1374: "bordeaux, february 15. this indenture, made between our lord king john [of gaunt, of castile, etc.] of the one part and symkyn molyneux, esquire, of the other part, witnesses that the said symkyn is retained and will remain with our said lord for peace and for war for the term of his life, as follows: that is to say, the said symkyn shall be bound to serve our said lord as well in time of peace as of war in whatsoever parts it shall please our said lord, well and fitly arrayed. and he shall be boarded as well in time of peace as of war. and he shall take for his fees by the year, as well in time of peace as of war, ten marks sterling [133s.] from the issues of the duchy of lancaster by the hands of the receiver there who now is or shall be in time to come, at the terms of easter and michaelmas by even portions yearly for the whole of his life. and, moreover, our lord has granted to him by the year in time of war five marks sterling [67s.] by the hands of the treasurer of war for the time being. and his year of war shall begin the day when he shall move from his inn towards our said lord by letters which shall be sent to him thereof, and thenceforward he shall take wages coming and returning by reasonable daily [payments] and he shall have fitting freightage for him, his men, horses, and other harness within reason, and in respect of his war horses taken and lost in the service of our said lord, and also in respect to prisoners and other profits of war taken or gained by him or any of his men, the said our lord will do to him as to other squires of his rank." forecastles and stern castles on ships were lower and broader. underneath them were cabins. the english ship was still single masted with a single square sail. a fleet was formed with over 200 ships selected by the english admirals acting for the king at the ports. men were seized and pressed into service and criminals were pardoned from crimes to become sailors in the fleet, which was led by the king's ship. they used the superior longbow against the french sailor's crossbow. in 1372, the tower of london had four mounted fortress cannon and the port of dover had six. the war's disruption of shipping caused trade to decline. but the better policing of the narrow seas made piracy almost disappear. english merchants may carry their merchandise in foreign ships if there are no english ships available. anyone may ship or carry grain out of the nation, except to enemies, after paying duties. but the council may restrain this passage when necessary for the good of the nation. any merchant, privy or stranger, who was robbed of goods on the sea or lost his ship by tempest or other misfortune on the sea banks, his goods coming to shore could not be declared wreck, but were to be delivered to the merchant after he proves ownership in court by his marks on the goods or by good and lawful merchants. all stakes and obstacles set up in rivers impeding the passage of boats shall be removed. waterpower was replacing foot power in driving the mills where cloth was cleaned and fulled. a boundary dispute between two barons resulted in the first true survey map. nine cow pastures were divided by a boundary marked by a shield on a pole which the commission of true and sworn men had set up. king richard ii, an irresponsible sovereign, asserted an absolute supremacy of the king over parliament and declared certain statutes which he claimed to have been forced on him to be revoked. he interfered with county elections of knights to parliament by directing sheriffs to return certain named persons. he wanted to dispense altogether with parliament and instead have a committee of representatives. he claimed that the goods of his subjects were his own and illegally taxed the counties. there were many disputes as to who should be his ministers. high treason was extended to include making a riot and rumor, compassing or purposing to depose the king, revoking one's homage or liege to the king, or attempting to repeal a statute. when henry bolingbroke reported to parliament that another lord had cast doubt on the king's trustworthiness, a duel between them was arranged. but richard, probably fearing the gain of power of the lord who won, instead exiled the two lords. he took possession of the lancaster estates to which henry was heir and forbade this inheritance. this made all propertied men anxious and they united behind bolingbroke in taking up arms against richard. richard was not a warrior king and offered to resign the crown. the "merciless parliament" of 1388 swept out richard's friends. parliament deposed and imprisoned richard. it revoked the extensions to the definition of high treason. it elected bolingbroke, who claimed to be a descendant of henry iii, to be king henry iv. this action established clearly that royal decrees were subordinate to parliamentary statutes, that parliament was the ultimate legal arbiter of the realm, and that the consent of parliament was necessary in determining kingship. the house of commons became very powerful. it was responsible for the major part of legislation. it's members began to assert the privilege of free speech. that is, they wanted to discuss other matters than what was on the king's agenda and they opposed punishment for what they said unless it was treasonable. henry iv agreed to their request not to consider reports of proceedings unless they came to him through official channels. the law after the black death of 1348 these statutes were enacted: high treason was defined by statute in 1352 as levying war against the king, aiding the king's enemies, compassing or imagining the death of the king, queen, or their eldest son and heir, or violating the queen or the eldest unmarried daughter or the wife of the king's eldest son and heir; making or knowingly using counterfeits of the king's great or privy seal or coinage; or slaying the chancellor, treasurer, or any justice in the exercise of their duty. the penalty was forfeit of life and lands. petit treason was defined by statute and included a servant slaying his master, a wife her husband, or a man his lord, to whom was owed faith and obedience. no one shall tell false news or lies about prelates, dukes, earls, barons, and other nobles and great men or the chancellor, treasurer, a justice, clerk of the privy seal, steward of the king's house whereby debates and discords might arise between these lords or between the lords and the commons. cases shall be tried by the king's council, which included the chancellor, treasurer, and chief justices. preachers drawing crowds by ingenious sermons and inciting them to riot shall be arrested by sheriffs and tried by the ecclesiastical court. any stranger passing at night of whom any have suspicion shall be arrested and taken to the sheriff. no man shall ride with a spear, upon pain of forfeiting it. no servant of agriculture or laborer shall carry any sword or dagger, or forfeit it, except in time of war in defense of the nation. he may carry bow and arrow [for practice] on sundays and holy days, when he should not play games such as tennis, football, or dice. no one may enter another's land and tenements by strong hand nor with a mob, upon pain of imprisonment and ransom at the king's will. charters, releases, obligations, [quit-claim deeds] and other deeds burnt or destroyed in uprisings shall be reissued without fee, after trial by the king and his council. manumissions, obligations, releases and other bonds and feoffments in land made by force, coercion or duress during mob uprisings are void. men who rape and women consenting after a rape shall lose their inheritance and dower and joint feoffments. the husbands, or father or next of kin of such women may sue the rapist by inquisition, but not by trial by combat. the penalty is loss of life and member. the statute of laborers of 1351 required all workers, from tailors to ploughmen, to work only at pre-plague wage rates and forced the vagrant peasant to work for anyone who claimed him or her. it also encouraged longer terms of employment as in the past rather than for a day at a time. statutory price controls on food limited profits to reasonable ones according to the distance of the supply. later, wages were determined in each county by justices of the peace according to the dearth of victuals while allowing a victualler a reasonable profit and a penalty was specified as paying the value of the excess wages given or received for the first offense, double this for the second offense, and treble this or forty days imprisonment for the third offense. a fugitive laborer will be outlawed, and when found, shall be burnt in the forehead with the letter "f" for falsity. children who labored at the plough and cart or other agriculture shall continue in that labor and may not go into a craft. a statute of 1363 designed to stop hoarding various types of merchandise until a type became scarce so to sell it at high prices, required merchants to deal in only one type of merchandise. it also required craftsmen to work in only one craft as before (except women who traditionally did several types of handiwork). this was repealed a year later. where scarcity has made the price of poultry high, it shall be lowered to 8d. for a young capon, 7d. for an old capon or a goose, 9d. for a hen, and 10d. for a pullet. the fares for passage on boats on fresh waters and from dover to the continent shall remain at their old rate. any merchant selling at a fair after it has ended will forfeit to the king twice the value of that sold. anyone finding and proving cloth contrary to the assize of cloth shall have one-third of it for his labor. no shoemaker nor cordwainer shall tan their leather and no tanner shall make shoes, in order that tanning not be false or poorly done. all denizen [foreigner permitted to reside in the realm with certain rights and privileges] and alien merchants may buy and sell goods and merchandise, in gross, in any part of the country, despite town charters or franchises, to anyone except an enemy of the king. they may also sell small wares: victuals, fur, silk, coverchiefs [an item of woman's apparel], silver wire, and gold wire in retail, but not cloth or wine. they must sell their goods within three months of arrival. any alien bringing goods to the nation to sell must buy goods of the nation to the value of at least one-half that of his merchandise sold. these merchants must engage in no collusion to lower the price of merchandise bought, take merchandise bought to the staple, and promise to hold no staple beyond the sea for the same merchandise. an amendment disallowed denizens from taking wools, leather, woolfells, or lead for export, but only strangers. towns failing to bring disturbers of this right to justice shall forfeit their franchise to the king and pay double damages to the merchant. the disturber shall be imprisoned for a year. cloth may not be tacked nor folded for sale to merchants unless they are opened to the buyers for inspection, for instance for concealed inferior wool. workers, weavers, and fullers shall put their seals to every cloth. and anyone could bring his own wools, woolfells, leather, and lead to the staple to sell without being compelled to sell them in the country. special streets or warehouses were appointed with warehouse rent fixed by the mayor and constables with four of the principal inhabitants. customs duties were regulated and machinery provided for their collection. no one was to forestall or regrate, that is, buy at one price and sell at a higher price in the same locale. forestallers were those who bought raw material on its way to market. regrators were those who tried to create a "corner" in the article in the market itself. imported cloth shall be inspected by the king's officials for nonstandard measurements or defects [despite town franchises]. no one shall leave the nation except at designated ports, on pain of one year's imprisonment. social distinctions by attire were mandated by statute of 1363. a servant, his wife, son, or daughter, shall only wear cloth worth no more than 27s. and shall not have more than one dish of meat or fish a day. carters, ploughmen, drivers of the plough, oxherds, cowherds, shepherds, and all other people owning less than 40s. of goods and chattels shall only wear blanket and russet worth no more than 12d. and girdles of linen according to their estate. craftsmen and free peasants shall only wear cloth worth no more than 40s. esquires and gentlemen below the rank of knight with no land nor rent over 2,000s. a year shall only wear cloth worth no more than 60s., no gold, silver, stone, fur, or the color purple. esquires with land up to 2,667s. per year may wear 67s. cloth, cloth of silk and silver, miniver [grey squirrel] fur and stones, except stones on the head. merchants, citizens, burgesses, artificers, and people of handicraft having goods and chattels worth 10,000s. shall wear cloth the same value as that worn by esquires and gentlemen with land or rent within 2,000s. per year. the same merchants and burgesses with goods and chattels worth 13,333s. and esquires and gentlemen with land or rent within 400s. per year may not wear gold cloth, miniver fur, ermine [white] fur, or embroidered stones. a knight with land or rents within 2,667s. yearly are limited to cloth of 80s., but his wife may wear a stone on her head. knights and ladies with land or rents within 8,000s. to 20,000s. yearly may not wear fur of ermine or of letuse, but may wear gold, and such ladies may wear pearls as well as stones on their heads. the penalty is forfeiture of such apparel. this statute is necessary because of "outrageous and excessive apparel of diverse persons against their estate and degree, to the great destruction and impoverishment of all the land". if anyone finds a hawk [used to hunt birds, ducks, and pheasant] that a lord has lost, he must take it to the sheriff for keeping for the lord to claim. if there is no claim after four months, the finder may have it only if he is a gentleman. if one steals a hawk from a lord or conceals from him the fact that it has been found, he shall pay the price of the hawk and be imprisoned for two years. no laborer or any other man who does not have lands and tenements of the value of 40s. per year shall keep a greyhound [or other hound or dog] to hunt, nor shall they use nets or cords or other devices to take [deer, hare, rabbits, nor other gentlemen's game], upon pain of one year imprisonment. (the rabbit had been introduced by the normans.) this 1390 law was primarily intended to stop the meetings of laborers and artificers. no man shall eat more than two courses of meat or fish in his house or elsewhere, except at festivals, when three are allowed [because great men ate costly meats to excess and the lesser people were thereby impoverished]. no one may export silver, whether bullion or coinage, or wine except foreign merchants may carry back the portion of their money not used to buy english commodities. the penalty for bringing false or counterfeit money into the nation is loss of life and member. an assigned searcher [inspector] for coinage of the nation on the sea passing out of the nation or bad money in the nation shall have one third of it. no foreign money may be used in the nation. each goldsmith shall have an identifying mark, which shall be placed on his vessel or work only after inspection by the king's surveyor. no one shall give anything to a beggar who is capable of working. vagrants begging in london were banned by this 1359 ordinance: "forasmuch as many men and women, and others, of divers counties, who might work, to the help of the common people, have betaken themselves from out of their own country to the city of london and do go about begging there so as to have their own ease and repose, not wishing to labor or work for their sustenance, to the great damage of the common people; and also do waste divers alms which would otherwise be given to many poor folks, such as lepers, blind, halt, and persons oppressed with old age and divers other maladies, to the destruction of the support of the same we do command on behalf of our lord the king, whom may god preserve and bless, that all those who go about begging in the said city and who are able to labor and work for the profit of the common people shall quit the said city between now and monday next ensuing. and if any such shall be found begging after the day aforesaid, the same shall be taken and put in the stocks on cornhill for half a day the first time, and the second time he shall remain in the stocks one whole day, and the third time he shall be taken and shall remain in prison for forty days and shall then forswear the said city forever. and every constable and the beadle of every ward of the said city shall be empowered to arrest such manner of folks and to put them in the stocks in manner aforesaid." the hundred year cry to "let the king live on his own" found fruition in a 1352 statute requiring consent of the parliament before any commission of array for militia could be taken and a 1362 statute requiring purchases of goods and means of conveyance for the king and his household to be made only by agreement with the seller and with payment to him before the king traveled on, instead of at the low prices determined unilaterally by the king's purveyor. every man who has wood within the forest may take houseboot [right to take wood for reapir of one's house] and heyboot [right to take material for the maintenance of hedges and fences, and the making of farming utensils] in his wood without being arrested so long as it take such within the view of the foresters. no fecal matter, dung, garbage, or entrails of animals killed shall be put into ditches or rivers or other waters, so that maladies and diseases will not be caused by corrupted and infected air. the penalty is 400s. to the king after trial by the chancellor. gifts or alienation of land to guilds, fraternities, or towns are forbidden. instead, it escheats to its lord, or in his default, to the king. no man will be charged to go out of his county to do military service except in case of an enemy invasion of the nation. men who chose to go into the king's service outside the nation shall be paid wages by the king until their return. admiralty law came into being when ancient naval manners and customs were written down as the "black book of the admiralty". this included the organization of the fleet under the admiral, sea-maneuver rules such as not laying anchor until the admiral's ship had, engagement rules, and the distribution of captured goods: one-fourth to the vessel owner, one-fourth to the king if the seamen were paid by the king's wages, and the rest divided among the crew and admiral. stealing a boat or an anchor holding a boat was punishable by hanging. stealing an oar or an anchor was punishable by forty days imprisonment for the first offense, six months imprisonment for the second, and hanging for the third. desertion was punishable by loss of double the amount of wages earned and imprisonment for one year. cases were tried by jury in the admiral's court. wines, vinegar, oil and honey imported shall be gauged by the king's appointees. judicial procedure the office of justice of the peace was developed and filled by knights, esquires and gentlemen who were closely associated with the magnates. there was no salary nor any requirement of knowledge of the law. they were to pursue, restrain, arrest, imprison, try, and duly punish felons, trespassers, and rioters according to the law. they were expected to arrest vagrants who would not work and imprison them until sureties for good behavior was found for them. they also were empowered to inspect weights and measures. trespass included forcible offenses of breaking of a fence enclosing private property, assault and battery, false imprisonment, and taking away goods and chattels. the action of trespass was replacing private suits for murder and for personal injury. pardons may be given only for slaying another in one's own defense or by misfortune [accident], and not for slaying by lying in wait, assault, or malice aforethought. justices of assize, sheriffs, and justices of the peace and mayors shall have power to inquire of all vagabonds and compel them to find surety of their good bearing or be imprisoned. a reversioner shall be received in court to defend his right when a tenant for a term of life, tenant in dower, or by the law of england, or in tail after possibility of issue extinct are sued in court for the land, so as to prevent collusion by the demandants. a person in debt may not avoid his creditors by giving his tenements or chattels to his friends in collusion to have the profits at their will. where there was a garnishment given touching a plea of land, a writ of deceit is also maintainable. actions of debt will be heard only in the county where the contract was made. the action of debt includes enforcement of contracts executed or under seal, e.g. rent due on a lease, hire of an archer, contract of sale or repair of an item. thus there is a growing connection between the actions of debt and contract. executors have an action for trespass to their testators' goods and chattels in like manner as did the testator when alive. if a man dies intestate, his goods shall be administered by his next and most lawful friends appointed. such administrators shall have the same powers and duties as executors and be accountable as are executors to the ecclesiastical court. children born to english parents in parts beyond the sea may inherit from their ancestors in the same manner as those born in the nation. a person grieved by a false oath in a town court proceeding may appeal to the king's bench or common pleas, regardless of any town franchise. the court of the king's bench worked independently of the king. it was exceptional to find the king sitting on his bench. it became confined to the established common law. decisions of the common law courts are appealable to the house of lords. the king's council members who are not peers, in particular the justices and the masters of the chancery, are summoned by the house of lords only as mere assistants. parliament can change the common law by statute. the right of a peer to be tried for capital crimes by a court composed of his peers was established. there is a widespread belief that all the peers are by right the king's councilors. no attorney may practice law and also be a justice of assize. no justice may take any gift except from the king nor give counsel to any litigant before him. in 1390, there was another statute against maintainers, instigators, barretors, procurers, and embracers of quarrels and inquests because of great and outrageous oppressions of parties in court. because this encouraged maintenance by the retinue of lords with fees, robes, and other liveries, such maintainers were to be put out of their lords' service, and could not be retained by another lord. no one was to give livery to anyone else, except household members and those retained for life for peace or for war. justices of the peace were authorized to inquire about yeomen, or other of lower estate than squire, bearing livery of any lord. whereas it is contained in the magna carta that none shall be imprisoned nor put out of his freehold, nor of his franchises nor free custom, unless it be by the law of the land; it is established that from henceforth none shall be taken by petition or suggestion made to the king unless by indictment of good and lawful people of the same neighborhood where such deeds be done, in due manner, or by process made by writ original at the common law; nor that none be out of his franchise, nor of his freeholds, unless he be duly brought into answer and before judges of the same by the course of law. the chancery came to have a separate and independent equitable jurisdiction. it heard petitions of misconduct of government officials or of powerful oppressors, fraud, accident, abuse of trust, wardship of infants, dower, and rent charges. because the common law and its procedures had become technical and rigid, the chancery was given equity jurisdiction by statute in 1285. king edward iii proclaimed that petitions for remedies that the common law didn't cover be addressed to the chancellor, who was not bound by established law, but could do equity. in chancery, if there is a case that is similar to a case for which there is a writ, but is not in technical conformity with the requirements of the common law for a remedy, then a new writ may be made for that case by the chancellor. these were called "actions on the case". also, parliament may create new remedies. there were so many cases that were similar to a case with no remedy specified in the common law, that litigants were flowing into the chancery. the chancellor gave swift and equitable relief, which was summary. with the backing of the council, the chancellor made decisions implementing the policy of the statute of laborers. most of these concerned occupational competency, for instance negligent activity of carriers, builders, shepherds, doctors, clothworkers, smiths, innkeepers, and gaolers. for instance, the common law action of detinue could force return of cloth bailed for fulling or sheep bailed for pasturing, but could not address damages due to faulty work. the chancellor addressed issues of loss of wool, dead lambs, and damaged sheep, as well as dead sheep. he imposed a legal duty on innkeepers to prevent injury or damage to a patron or his goods from third parties. a dog bite or other damage by a dog known by its owner to be vicious was made a more serious offense than general damage by any dog. a person starting a fire was given a duty to prevent the fire from damaging property of others. the king will fine instead of seize the land of his tenants who sell or alienate their land, such fine to be determined by the chancellor by due process. only barons who were peers of the house of lords were entitled to trial in the house of lords. in practice, however, this pertained only to major crimes. treason was tried by the lords in parliament, by bill of "attainder". it was often used for political purposes. most attainders were reversed as a term of peace made between competing factions. the king's coroner and a murderer who had taken sanctuary in a church often agreed to the penalty of confession and perpetual banishment from the nation as follows: "memorandum that on july 6, [1347], henry de roseye abjured the realm of england before john bernard, the king's coroner, at the church of tendale in the county of kent in form following: 'hear this, o lord the coroner, that i, henry de roseye, have stolen an ox and a cow of the widow of john welsshe of retherfeld; and i have stolen eighteen beasts from divers men in the said county. and i acknowledge that i have feloniously killed roger le swan in the town of strete in the hundred of strete in the rape [a division of a county] of lewes and that i am a felon of the lord king of england. and because i have committed many ill deeds and thefts in his land, i abjure the land of the lord edward king of england, and [i acknowledge] that i ought to hasten to the port of hastings, which thou hast given me, and that i ought not to depart from the way, and if i do so i am willing to be taken as a thief and felon of the lord king, and that at hastings i will diligently seek passage, and that i will not wait there save for the flood and one ebb if i can have passage; and if i cannot have passage within that period, i will go up to the knees into the sea every day, endeavoring to cross; and unless i can do so within forty days, i will return at once to the church, as a thief and a felon of the lord king, so help me god." property damage by a tenant of a london building was assessed in a 1374 case: "john parker, butcher, was summoned to answer clement spray in a plea of trespass, wherein the latter complained that the said john, who had hired a tavern at the corner of st. martinle-grand from him for fifteen months, had committed waste and damage therein, although by the custom of the city no tenant for a term of years was entitled to destroy any portion of the buildings or fixtures let to him. he alleged that the defendant had taken down the door post of the tavern and also of the shop, the boarded door of a partition of the tavern, a seat in the tavern, a plastered partition wall, the stone flooring in the chamber, the hearth of the kitchen, and the mantelpiece above it, a partition in the kitchen, two doors and other partitions, of a total value of 21s. four pounds, 1s. 8d., and to his damage, 400s. [20 pounds]. the defendant denied the trespass and put himself on the country. afterwards a jury [panel]... found the defendant guilty of the aforesaid trespass to the plaintiff's damage, 40d. judgment was given for that amount and a fine of 1s. to the king, which the defendant paid immediately in court." the innkeeper's duty to safeguard the person and property of his lodgers was applied in this case: "john trentedeus of southwark was summoned to answer william latymer touching a plea why, whereas according to the law and custom of the realm of england, innkeepers who keep a common inn are bound to keep safely by day and by night without reduction or loss men who are passing through the parts where such inns are and lodging their goods within those inns, so that, by default of the innkeepers or their servants, no damage should in any way happen to such their guests ... on monday after the feast of the purification of the virgin mary in the fourth year of the now king by default of the said john, certain malefactors took and carried away two small portable chests with 533s. and also with charters and writings, to wit two writings obligatory, in the one of which is contained that a certain robert bour is bound to the said william in 2,000s. and in the other that a certain john pusele is bound to the same william in 800s. 40 pounds ... and with other muniments [writings defending claims or rights] of the same william, to wit his return of all the writs of the lord king for the counties of somerset and dorset, whereof the same william was then sheriff, for the morrow of the purification of the blessed mary the virgin in the year aforesaid, as well before the same lord the king in his chancery and in his bench as before the justices of the king's common bench and his barons of his exchequer, returnable at westminster on the said morrow, and likewise the rolls of the court of cranestock for all the courts held there from the first year of the reign of the said lord the king until the said monday, contained in the same chests being lodged within the inn of the same john at southwark and the said john ... says that on the said monday about the second hour after noon the said william entered his inn to be lodged there, and at once when he entered, the same john assigned to the said william a certain chamber being in that inn, fitting for his rank, with a door and a lock affixed to the same door with sufficient nails, so that he should lie there and put and keep his things there, and delivered to the said william the key to the door of the said chamber, which chamber the said william accepted... william says that ... when the said john had delivered to him the said chamber and key as above, the same william, being occupied about divers businesses to be done in the city of london, went out from the said inn into the city to expedite the said businesses and handed over the key of the door to a certain servant of the said william to take care of in meantime, ordering the servant to remain in the inn meanwhile and to take care of his horses there; and afterwards, when night was falling, the same william being in the city and the key still in the keeping of the said servant, the wife of the said john called unto her into her hall the said servant who had the key, giving him food and drink with a merry countenance and asking him divers questions and occupying him thus for a long time, until the staple of the lock of the door aforesaid was thrust on one side out of its right place and the door of the chamber was thereby opened and his goods, being in the inn of the said john, were taken and carried off by the said malefactors ... the said john says ...[that his wife did not call the servant into the hall, but that] when the said servant came into the said hall and asked his wife for bread and ale and other necessaries to be brought to the said chamber of his master, his wife immediately and without delay delivered to the same servant the things for which he asked ... protesting that no goods of the same william in the said inn were carried away by the said john his servant or any strange malefactors other than the persons of the household of the said william." on the coram rege roll of 1395 is a case on the issue of whether a court-crier can be seized by officers of a staple: "edmund hikelyng, 'criour', sues william baddele and wife maud, john olney, and william knyghtbrugge for assault and imprisonment at westminster, attacking him with a stick and imprisoning him for one hour on wednesday before st. martin, 19 richard ii. baddele says mark faire of winchester was prosecuting a bill of debt for 18s. against edmund and john more before william brampton, mayor of the staple of westminster, and thomas alby and william askham, constables of the said staple, and on that day the mayor and the constables issued a writ of capias against edmund and john to answer mark and be before the mayor and the constables at the next court. this writ was delivered to baddele as sergeant of the staple, and by virtue of it he took and imprisoned edmund in the staple. maud and the others say they aided baddele by virtue of the said writ. edmund does not acknowledge baddele to be sergeant of the staple or mark a merchant of the staple or that he was taken in the staple. he is minister of the king's court of his bench and is crier under thomas thorne, the chief crier, his master. every servant of the court is under special protection while doing his duty or on his way to do it. on the day in question, he was at westminster carrying his master's staff of office before hugh huls, one of the king's justices, and william took him in the presence of the said justice and imprisoned him. the case is adjourned for consideration from hilary to easter." a law of equity began to be developed from decisions by the chancellor in his court of conscience from around 1370. one such case was that of godwyne v. profyt sometime after 1393. this petition was made to the chancellor: to the most reverend father in god, and most gracious lord, the bishop of exeter, chancellor of england. thomas godwyne and joan his wife, late wife of peter at more of southwerk, most humbly beseech that, whereas at michaelmas in the 17th year of our most excellent lord king richard who now is, the said peter at more in his lifetime enfeoffed thomas profyt parson of st. george's church southwerk, richard saundre, and john denewey, in a tenement with the appurtenances situated in southwerk and 24 acres of land 6 acres of meadow in the said parish of st. george and in the parish of our lady of newington, on the conditions following, to wit, that the said three feoffees should, immediately after the death of the said peter, enfeoff the said joan in all the said lands and tenements with all their appurtenances for the life of the said joan, with remainder after her decease to one nicholas at more, brother of the said peter, to hold to him and the heirs of his body begotten, and for default of issue, then to be sold by four worthy people of the said parish, and the money to be received for the same to be given to holy church for his soul; whereupon the said peter died. and after his death two of the said feoffees, richard and john, by the procurement of one john solas, released all their estate in the said lands and tenements to the said thomas profyt, on the said conditions, out of the great trust that they had in the said thomas profyt, who was their confessor, that he would perform the will of the said peter [at more] in the form aforesaid; and this well and lawfully to do the said thomas profyt swore on his verbum dei and to perform the said conditions on all points. and since the release was so made, the said thomas profyt, through the scheming and false covin of the said john solas, has sold all the lands and tenements aforesaid to the same john solas for ever. and the said john solas is bound to the said thomas profyt in 100 pounds by a bond to make defence of the said lands and tenements by the bribery (?) and maintenance against every one; and so by their false interpretation and conspiracy the said joan, nicholas, and holy church are like to be disinherited and put out of their estate and right, as is abovesaid, for ever, tortiously, against the said conditions, and contrary to the will of the said peter [at more]. may it please your most righteous lordship to command the said thomas profyt, richard saundre, and john denewy to come before you, and to examine them to tell the truth of all the said matter, so that the said joan, who has not the wherewithal to live, may have her right in the said lands and tenements, as by the examination before you, most gracious lord, shall be found and proved; for god and in way of holy charity. chapter 10 the times: 1399-1485 this period, which begins with the reign of the usurper king, henry iv, is dominated by war: the last half of the 100 year war with france, which, with the help of joan of arc, took all english land on the continent except the port of calais, and the war of the roses over the throne in england. the ongoing border fights with wales and scotland were fought by england's feudal army. but for fighting in france, the king paid barons and earls to raise their own fighting forces. when they returned to england, they fought to put their candidate on its throne, which had been unsteady since its usurpation by henry iv. all the great houses kept bands of armed retainers. these retainers were given land or pay or both as well as liveries [uniforms or badges] bearing the family crest. in the system of "livery and maintenance", if the retainer was harassed by the law or by enemies, the lord protected him. the liveries became the badges of the factions engaged in the war of the roses. and the white rose was worn by the supporters of the house of york, and the red rose by supporters of the house of lancaster for the crown. great lords fought each other for property and made forcible entries usurping private property. shakespeare's histories deal with this era. in both wars, the musket was used as well as the longbow. to use it, powder was put into the barrel, then a ball rammed down the barrel with a rod, and then the powder lit by a hot rod held with one hand while the other hand was used to aim the musket. cannon were used to besiege castles and destroy their walls, so many castles were allowed to deteriorate. the existence of cannon also limited the usefulness of town walls for defense. but townspeople did not take part in the fighting. since the power of the throne changed from one faction to another, political and personal vindictiveness gave rise to many bills of attainder that resulted in lords being beheaded and losing their lands to the king. however, these were done by the form of law; there were no secret executions in england. families engaged in blood feuds. roving bands ravaged the country, plundering the people, holding the forests, and robbing collectors of crown revenue. some men made a living by fighting for others in quarrels. individual life and property were insecure. whole districts were in a permanent alarm of riot and robbery. the roads were not safe. nobles employed men who had returned from fighting in war to use their fighting skill in local defense. there was fighting between lords and gangs of ruffians holding the roads, breaking into and seizing manor houses, and openly committing murders. peace was never well-kept nor was law ever well-executed, though fighting was suspended by agreement during the harvest. local administration was paralyzed by party faction or lodged in some great lord or some clique of courtiers. the elections of members to parliament was interfered with and parliament was rarely held. barons and earls fought their disputes in the field rather than in the royal courts. litigation was expensive, so men relied increasingly on the protection of the great men of their neighborhood and less on the king's courts for the safety of their lives and land. local men involved in court functions usually owed allegiance to a lord which compromised the exercise of justice. men serving in an assize often lied to please their lord instead of telling the truth. lords maintained, supported, or promoted litigation with money or aid supplied to one party to the detriment of justice. it was not unusual for lords to attend court with a great force of retainers behind them. many justices of the peace wore liveries of magnates and accepted money from them. royal justices were flouted or bribed. the king's writ was denied or perverted. for 6-8s., a lord could have the king instruct his sheriff to impanel a jury which would find in his favor. a statute against riots, forcible entries, and, excepting the king, magnates' liveries of uniform, food, and badges to their retainers, except in war outside the nation, was passed, but was difficult to enforce because the offenders were lords, who dominated the parliament and the council. with men so often gone to fight, their wives managed the household alone. the typical wife had maidens of equal class to whom she taught household management, spinning, weaving, carding wool with iron wool-combs, heckling flax, embroidery, and making garments. there were foot-treadles for spinning wheels. she taught the children. each day she scheduled the activities of the household including music, conversation, dancing, chess, reading, playing ball, and gathering flowers. she organized picnics, rode horseback and went hunting, hawking to get birds, and hare-ferreting. she was nurse to all around her. if her husband died, she usually continued in this role because most men named their wife as executor of their will with full power to act as she thought best. the wives of barons shared their right of immunity from arrest by the processes of common law and to be tried by their peers. for ladies, close-fitting jackets came to be worn over closefitting long gowns with low, square-cut necklines and flowing sleeves, under which was worn a girdle or corset of stout linen reinforced by stiff leather or even iron. her skirt was provocatively slit from knee to ankle. all her hair was confined by a hair net. headdresses were very elaborate and heavy, trailing streamers of linen. some were in the shape of hearts, butterflies, crescents, double horns, steeples, or long cones. men also wore hats rather than hoods. they wore huge hats of velvet, fur, or leather. their hair was cut into a cap-like shape on their heads, and later was shoulder-length. they wore doublets with thick padding over the shoulders or short tunics over the trucks of their bodies and tightened at the waist to emphasize the shoulders. their collars were high. their sleeves were long concoctions of velvet, damask, and satin, sometimes worn wrapped around their arms in layers. their legs were covered with hosen, often in different colors. codpieces worn between the legs emphasized the sensuality of the age as did ladies' tight and lowcut gowns. men's shoes were pointed with upward pikes at the toes that impeded walking. at another time, their shoes were broad with blunt toes. both men and women wore much jewelry and ornamentation. but, despite the fancy dress, the overall mood was a macabre preoccupation with mortality, despair, and a lack of confidence in the future. cannon and mercenaries had reduced the military significance of knighthood, so its chivalric code deteriorated into surface politeness, ostentation, and extravagance. master and servants ceased to eat together in the same hall, except for great occasions, on feast days, and for plays. the lord, and his lady, family, and guests took their meals in a great chamber, usually up beneath the roof next to the upper floor of the great hall. the chimney-pieces and windows were often richly decorated with panelled stonework, tracery and carving. there was often a bay or oriel window with still expensive glass. tapestries, damask, and table-cloths covered the tables. there was much formality and ceremonial ritual, more elaborate than before, during dinners at manorial households, including processions bringing and serving courses, and bowing, kneeling, and curtseying. there were many courses of a variety of meats, fish, stews, and soups, with a variety of spices and elaborately cooked. barons, knights, and their ladies sat to the right of the lord above the salt and were served by the lord's sewer and carver and gentlemen waiters; their social inferiors such as "gentlemen of worship" sat below the salt and were served by another sewer and yeomen. the lord's cupbearer looked after the lord alone. a knights table was waited on by yeomen. the gentlemen officers, gentlemen servants and yeomen officers were waited on by their own servants. the amount of food dished out to each person varied according to his rank. the almoner said grace and distributed the left-overs to the poor gathered at the gate. the superior people's hands were washed by their inferiors. lastly, the trestle tables were removed while sweet wine and spices were consumed standing. then the musicians were called into the hall and dancing began. the lord usually slept in a great bed in this room. the standard number of meals was three: breakfast, dinner, and supper. the diet of an ordinary family such as that of a small shopholder or yeoman farmer included beef, mutton, pork, a variety of fish, both fresh and salted, venison, nuts, peas, oatmeal, honey, grapes, apples, pears, and fresh vegetables. cattle and sheep were driven from wales to english markets. this droving lasted for five centuries. many types of people besides the nobility and knights now had property and thus were considered gentry: female lines of the nobility, merchants and their sons, attorneys, auditors, squires, and peasant-yeomen. the burgess grew rich as the knight dropped lower. the great merchants lived in mansions which could occupy whole blocks. typically, there would be an oak-paneled great hall, with adjoining kitchen, pantry, and buttery on one end and a great parlor to receive guests, bedrooms, wardrobes, servants' rooms, and a chapel on the other end or on a second floor. the beds were surrounded by heavy draperies to keep out cold drafts. in towns these mansions were entered through a gate through a row of shops on the street. a lesser dwelling would have these rooms on three floors over a shop on the first floor. an average londoner would have a shop, a storeroom, a hall, a kitchen, and a buttery on the first floor, and three bedrooms on the second floor. artisans and shopkeepers of more modest means lived in rows of dwellings, each with a shop and small storage room on the first floor, and a combination parlor-bedroom on the second floor. the humblest residents crowded their shop and family into one 6 by 10 foot room for rent of a few shillings a year. all except the last would also have a small garden. the best gardens had a fruit tree, herbs, flowers, a well, and a latrine area. there were common and public privies for those without their own. kitchen slops and casual refuse continued to be thrown into the street. floors of stone or planks were strewn with rushes. there was some tile flooring. most dwellings had glass windows. candles were used for lighting at night. torches and oil-burning lanterns were portable lights. furnishings were still sparse. men sat on benches or joint stools and women sat on cushions on the floor. hall and parlor had a table and benches and perhaps one chair. bedrooms had a curtained feather bed with pillows, blankets, and sheets. clothes were stored in a chest, sometimes with sweet-smelling herbs such as lavender, rosemary, and southernwood. better homes had wall hanging and cupboards displaying plate. laundresses washed clothes in the streams, rivers, and public conduits. country peasants still lived in wood, straw, and mud huts with earth floors and a smoky hearth in the center or a kitchen area under the eaves of the hut. in 1442, bricks began to be manufactured in the nation and so there was more use of bricks in buildings. chimneys were introduced into manor houses where stone had been too expensive. this was necessary if a second floor was added, so the smoke would not damage the floor above it and would eventually go out of the house. nobles and their retinue moved from manor to manor, as they had for centuries, to keep watch upon their lands and to consume the produce thereof; it was easier to bring the household to the estate than to transport the yield of the estate to the household. also, at regular intervals sewage had to be removed from the cellar pits. often a footman walked or ran on foot next to his master or mistress when they rode out on horseback or in a carriage. he was there primarily for prestige. jousting tournaments were held for entertainment purposes only and were followed by banquets of several courses of food served on dishes of gold, silver, pewter, or wood on a linen cloth covering the table. hands were washed before and after the meal. people washed their faces every morning after getting up. teeth were cleaned with powders. fragrant leaves were chewed for bad breath. garlic was used for indigestion and other ailments. feet were rubbed with salt and vinegar to remove calluses. good manners included not slumping against a post, fidgeting, sticking one's finger into one's nose, putting one's hands into one's hose to scratch the privy parts, spitting over the table or too far, licking one's plate, picking one's teeth, breathing stinking breath into the face of the lord, blowing on one's food, stuffing masses of bread into one's mouth, scratching one's head, loosening one's girdle to belch, and probing one's teeth with a knife. fishing and hunting were reserved for the nobility rather than just the king. as many lords became less wealthy because of the cost of war, some peasants, villein and free, became prosperous, especially those who also worked at a craft, e.g. butchers, bakers, smiths, shoemakers, tailors, carpenters, and clothworkers. an agricultural slump caused poorer soils to fall back into waste. the better soils were leased by peasants, who, with their families, were in a better position to farm it than a great lord, who found it hard to hire laborers at a reasonable cost. further, peasants' sheep, hens, pigs, ducks, goats, cattle, bees, and crop made them almost self-sufficient in foodstuffs. they lived in a huddle of cottages, pastured their animals on common land, and used common meadows for hay-making. they subsisted mainly on boiled bacon, an occasional chicken, worts and beans grown in the cottage garden, and cereals. they wore fine wool cloth in all their apparel. brimless hats were replacing hoods. they had an abundance of bed coverings in their houses. and they had more free time. village entertainment included traveling jesters, acrobats, musicians, and bear-baiters. playing games and gambling were popular pastimes. most villeins were now being called "customary tenants" or "copyholders" of land because they held their acres by a copy of the court-roll of the manor, which listed the number of teams, the fines, the reliefs, and the services due to the lord for each landholder. the chancery court interpreted many of these documents to include rights of inheritance. the common law courts followed the lead of the chancery and held that copyhold land could be inherited as was land at common law. evictions by lords decreased. the difference between villein and freeman lessened but landlords usually still had profits of villein bondage, such as heriot, merchet, and chevage. a class of laborers was arising who depended entirely on the wages of industry for their subsistence. the cloth workers in rural areas were isolated and weak and often at the mercy of middle-men for employment and the amount of their wages. when rural laborers went to towns to seek employment in the new industries, they would work at first for any rate. this deepened the cleavage of the classes in the towns. the artificers in the town and the cottagers and laborers in the country lived from hand to mouth, on the edge of survival, but better off than the old, the diseased, the widows, and the orphans. however, the 1400s were the most prosperous time for laborers considering their wages and the prices of food. meat and poultry were plentiful and grain prices low. social mobility was most possible in the towns, where distinctions were usually only of wealth. so a poor apprentice could aspire to become a master, a member of the livery of his company, a member of the council, an alderman, a mayor, and then an esquire for life. the distance between baron and a country knight and between a yeoman and knight was wider. manor custom was strong. but a yeoman could give his sons a chance to become gentlemen by entering them in a trade in a town, sending them to university, or to war. every freeman was to some extent a soldier, and to some extent a lawyer, serving in the county or borough courts. a burgess, with his workshop or warehouse, was trained in warlike exercises, and he could keep his own accounts, and make his own will and other legal documents, with the aid of a scrivener or a chaplain, who could supply an outline of form. but law was growing as a profession. old-established london families began to choose the law as a profession for their sons, in preference to an apprenticeship in trade. many borough burgesses in parliament were attorneys. in london, shopkeepers appealed to passers-by to buy their goods, sometimes even seizing people by the sleeve. the drapers had several roomy shops containing shelves piled with cloths of all colors and grades, tapestries, pillows, blankets, bed draperies, and 'bankers and dorsers' to soften hard wooden benches. a rear storeroom held more cloth for import or export. many shops of skinners were on fur row. there were shops of leather-sellers, hosiers, gold and silver cups, and silks. at the stocks market were fishmongers, butchers, and poulterers. london grocers imported spices, canvas, ropery, potions, unguents, soap, confections, garlic, cabbages, onions, apples, oranges, almonds, figs, dates, raisins, dye-stuffs, woad, madder (plant for medicine and dye), scarlet grains, saffron, iron, and steel. they were retailers as well as wholesalers and had shops selling honey, licorice, salt, vinegar, rice, sugar loaves, syrups, spices, garden seeds, dyes, alum, soap, brimstone, paper, varnish, canvas, rope, musk, incense, treacle of genoa, and mercury. the grocers did some money-lending, usually at 12% interest. the guilds did not restrict themselves to dealing in the goods for which they had a right of inspection, and so many dealt in wine that it was a medium of exchange. there was no sharp distinction between retail and wholesale trading. in london, grocers sold herbs for medicinal as well as eating purposes. breadcarts sold penny wheat loaves. foreigners set up stalls on certain days of the week to sell meat, canvas, linen, cloth, ironmongery, and lead. there were great houses, churches, monasteries, inns, guildhalls, warehouses, and the king's beam for weighing wool to be exported. in 1410, the guildhall of london was built through contributions, proceeds of fines, and lastly, to finish it, special fees imposed on apprenticeships, deeds, wills, and letters-patent. the mercers and goldsmiths were in the prosperous part of town. the goldsmiths' shops sold gold and silver plate, jewels, rings, water pitchers, drinking goblets, basins to hold water for the hands, and covered saltcellars. the grain market was on cornhill. halfway up the street, there was a supply of water which had been brought up in pipes. on the top of the hill was a cage where riotous folk had been incarcerated by the night watch and the stocks and pillory, where fraudulent schemers were exposed to ridicule. no work was to be done on sundays, but some did work surreptitiously. the barbers kept their shops open in defiance of the church. outside the london city walls were tenements, the smithfield cattle market, westminster hall, green fields of crops, and some marsh land. on the thames river to london were large ships with cargoes; small boats rowed by tough boatmen offering passage for a penny; small private barges of great men with carved wood, gay banners, and oarsmen with velvet gowns; the banks covered with masts and tackle; the nineteen arch london bridge supporting a street of shops and houses and a drawbridge in the middle; quays; warehouses, and great cranes lifting bales from ship to wharf. merchant guilds which imported or exported each had their own wharves and warehouses. downstream, pirates hung on gallows at the low-water mark to remain until three tides had overflowed their bodies. a climate change of about 1 1/2 degree celcius lower caused the thames to regularly freeze over in winter. the large scale of london trade promoted the specialization of the manufacturer versus the merchant versus the shipper. merchants had enough wealth to make loans to the government or for new commercial enterprises. local reputation on general, depended upon a combination of wealth, trustworthiness of character, and public spirit; it rose and fell with business success. some london merchants were knighted by the king. many bought country estates and turned themselves into gentry. the king granted london all common soils, improvements, wastes, streets, and ways in london and in the adjacent waters of the thames river and all the profits and rents to be derived therefrom. later the king granted london the liberty to purchase lands and tenements worth up to 2,667s. yearly. with this power, london had obtained all the essential features of a corporation: a seal, the right to make by-laws, the power to purchase lands and hold them "to them and their successors" (not simply their heirs, which is an individual and hereditary succession only), the power to sue and be sued in its own name, and the perpetual succession implied in the power of filling up vacancies by election. since these powers were not granted by charters, london is a corporation by prescription. in 1446, the liverymen obtained the right with the council to elect the mayor, the sheriff, and certain other corporate officers. many boroughs sought and obtained formal incorporation with the same essential features as london. this tied up the loose language of their early charters of liberties. often, a borough would have its own resident justice of the peace. each incorporation involved a review by a justice of the peace to make sure the charter of incorporation rule didn't conflict with the law of the nation. a borough typically had a mayor accompanied by his personal swordbearer and serjeants-at-mace bearing the borough regalia, bailiffs, a sheriff, and chamberlains or a steward for financial assistance. at many boroughs, aldermen, assisted by their constables, kept the peace in their separate wards. there might be coroners, a recorder, and a town clerk, with a host of lesser officials including beadles, aletasters, sealers, searchers [inspectors], weighers and keepers of the market, ferrymen and porters, clock-keepers and criers, paviors [maintained the roads], scavengers and other street cleaners, gatekeepers and watchmen of several ranks and kinds. a wealthy borough would have a chaplain and two or three minstrels. the mayor replaced the bailiffs as the chief magistracy. in all towns, the wealthiest and most influential guilds were the merchant traders of mercers, drapers, grocers, and goldsmiths. from their ranks came most of the mayors, and many began to intermarry with the country knights and gentry. next came the shopholders of skinners, tailors, ironmongers, and corvisors [shoemakers]. thirdly came the humbler artisans, the sellers of victuals, small shopkeepers, apprentices, and journeymen on the rise. lastly came unskilled laborers, who lived in crowded tenements and hired themselves out. the first three groups were the free men who voted, paid scot and bore lot, and belonged to guilds. scot was a rateable proportion in the payments levied from the town for local or national purposes. merchant guilds in some towns merged their existence into the town corporation, and their guild halls became the common halls of the town, and their property became town property. in london, the cutlers' company was chartered in 1415, the haberdashers' company in 1417, the grocers' company in 1428, the drapers' and cordwainers' companies in 1429, the vintners' and brewers' companies in 1437, the leathersellers' company in 1444, the girdlers' company in 1448, the armourers' and brassiers' companies in 1453, the barbers' company in 1461, the tallow chandlers' company in 1462, the ironmongers' company in 1464, the dyers' company in 1471, the musicians' company in 1472, the carpenters' company in 1477, the cooks' company in 1481, and the waxchandlers' company in 1483. the fishmongers, which had been chartered in 1399, were incorporated in 1433, the cordwainers in 1439, and the pewterers in 1468. there were craft guilds in the towns, at least 65 in london. in fact, every london trade of twenty men had its own guild. the guild secured good work for its members and the members maintained the reputation of the work standards of the guild. bad work was punished and night work prohibited as leading to bad work. the guild exercised moral control over its members and provided sickness and death benefits for them. there was much overlapping in the two forms of association: the craft guild and the religious fraternity. apprentices were taken in to assure an adequate supply of competent workers for the future. the standard indenture of an apprentice bound him to live in his master's house, to serve him diligently, obey reasonable commands, keep his master's secrets, protect him from injury, abstain from dice, cards and haunting of taverns, not marry, commit no fornication, nor absent himself without permission. in return the master undertook to provide the boy or girl with bed, board, and lodging and to instruct him or her in the trade, craft, or mystery. when these apprentices had enough training they were made journeymen with a higher rate of pay. journeymen traveled to see the work of their craft in other towns. those journeymen rising to master had the highest pay rate. occupations free of guild restrictions included horse-dealers, marbelers, bookbinders, jewelers, organ makers, feathermongers, pie makers, basket makers, mirrorers, quilters, and parchment makers. non-citizens of london could not be prevented from selling leather, metalwares, hay, meat, fruit, vegetables, butter, cheese, poultry, and fish from their boats, though they had to sell in the morning and sell all their goods before the market closed. in the towns, many married women had independent businesses and wives also played an active part in the businesses of their husbands. wives of well-to-do london merchants embroidered, sewed jewelry onto clothes, and made silk garments. widows often continued in their husband's businesses, such as managing a large import-export trade, tailoring, brewing, and metal shop. socially lower women often ran their own breweries, bakeries, and taverns. it was possible for wives to be free burgesses in their own right in some towns. some ladies were patrons of writers. some women were active in prison reform in matters of reviews to insure that no man was in gaol without due cause, overcharges for bed and board, brutality, and regulation of prisoners being placed in irons. many men and women left money in their wills for food and clothing for prisoners, especially debtors. wills often left one-third of the wealth to the church, the poor, prisoners, infirmaries, young girls' education; road, wall, and bridge repair; water supply, markets and almshouses. some infirmaries were for the insane, who were generally thought to be possessed by the devil or demons. their treatment was usually by scourging the demons out of their body by flogging. if this didn't work, torture could be used to drive the demons from the body. the guilds were being replaced by associations for the investment of capital. in associations, journeymen were losing their chance of rising to be a master. competition among associations was starting to supplant custom as the mainspring of trade. the cloth exporters, who were mostly mercers, were unregulated and banded together for mutual support and protection under the name of merchant adventurers of london. the merchant adventurers was chartered in 1407. it was the first and a prototype of regulated companies. that is the company regulated the trade. each merchant could ship on his own a certain number of cloths each year (the number depending on the length of his membership in the company) and sell them himself or by his factor at the place where the company had privileges of market. strict rules governed the conduct of each member. he was to make sales only at certain hours on specified days. all disagreements were to be settled by the company's governor, or his deputy in residence, and those officials dealt with such disputes as arose between members of the company and continental officials and buyers. a share in the ownership of one of their vessels was a common form of investment by prosperous merchants. by 1450, the merchant adventurers were dealing in linen cloths, buckrams [a stiffened, coarse cloth], fustians [coarse cloth made of cotton threads going in one direction and linen threads the other], satins, jewels, fine woolen and linen wares, threads, potions, wood, oil, wine, salt, copper, and iron. they began to replace trade by alien traders. the history of the "merchant adventurers" was associated with the growth of the mercantile system for more than 300 years. it eventually replaced the staples system. paved roads in towns were usually gravel and sometimes cobble. they were frequently muddy because of rain and spillage of water being carried. iron-shod wheels and overloaded carts made them very uneven. london was the first town with paviors. they cleaned and repaired the streets, filling up pot-holes with wood chips and compacting them with hand rams. the paviors were organized as a city company in 1479. about 1482, towns besides london began appointing salaried road paviors to repair roads and collect their expenses from the householders because the policy of placing the burden on individual householders didn't work well. london streets were lighted at night by public lanterns, under the direction of the mayor. the residents were to light these candle lanterns in winter from dusk to the 9 pm curfew. there were fire-engines composed of a circular cistern with a pump and six feet of inflexible hose on wheels pulled by two men on one end and pushed by two men on the other end. in 1480 the city walls were rebuilt with a weekly tax of 5d. per head. in schools, there was a renaissance of learning from original sources of knowledge written in greek and rebirth of the greek pursuit of the truth and scientific spirit of inquiry. there was a striking increase in the number of schools founded by wealthy merchants or town guilds. every cathedral, monastery, and college had a grammar school. merchants tended to send their sons to private boarding schools, instead of having them tutored at home as did the nobility. well-to-do parents still sent sons to live in the house of some noble to serve them as pages in return for being educated with the noble's son by the household priest. they often wore their master's coat of arms and became their squires as part of their knightly education. sometimes girls were sent to live in another house to take advantage to receive education from a tutor there under the supervision of the lady of the house. every man, free or villein, could send his sons and daughters to school. in every village, there were some who could read and write. in 1428, lincoln's inn required barristers normally resident in london and the county of middlesex to remain in residence and pay commons during the periods between sessions of court and during vacations, so that the formal education of students would be continuous. in 1442, a similar requirement was extended to all members. the book "sir gawain and the green knight" was written about an incident in the court of king arthur and queen guenevere in which a green knight challenges arthur's knights to live up to their reputation for valor and awesome deeds. the knight gawain answers the challenge, but is shown that he could be false and cowardly when death seemed to be imminent. thereafter, he wears a green girdle around his waist to remind him not to be proud. other literature read included "london lickpenny", a satire on london and its expensive services and products, "fall of princes" by john lydgate, social history by thomas hoccleve, "the cuckoo and the nightengale", and "the flower and leaf" on morality as secular common sense. king james i of scotland wrote a book about how he fell in love. chaucer, cicero, ovid, and aesops's fables were widely read. malory's new version of the arthurian stories was popular. margery kempe wrote the first true autobiography. she was a woman who had a normal married life with children, but one day had visions and voices which led her to leave her husband to take up a life of wandering and praying in holy possession. there were religious folk ballads such as "the cherry tree carol", about the command of jesus from mary's womb for a cherry tree to bend down so that mary could have some cherries from it. the common people developed ballads, e.g. about their love of the forest, their wish to hunt, and their hatred of the forest laws. about 30% of londoners could read english. books were bought in london in such quantities by 1403 that the craft organizations of text-letter writers, illuminators, book-binders, and book sellers was sanctioned by ordinance. "unto the honorable lords, and wise, the mayor and aldermen of the city of london, pray very humbly all the good folks, freemen of the said city, of the trades of writers of text-letter, limners [illuminator of books], and other folks of london who are wont to bind and to sell books, that it may please your great sagenesses to grant unto them that they may elect yearly two reputable men, the one a limner, the other a textwriter, to be wardens of the said trades, and that the names of the wardens so elected may be presented each year before the mayor for the time being, and they be there sworn well and diligently to oversee that good rule and governance is had and exercised by all folks of the same trades in all works unto the said trades pertaining, to the praise and good fame of the loyal good men of the said trades and to the shame and blame of the bad and disloyal men of the same. and that the same wardens may call together all the men of the said trades honorably and peacefully when need shall be, as well for the good rule and governance of the said city as of the trades aforesaid. and that the same wardens, in performing their due office, may present from time to time all the defaults of the said bad and disloyal men to the chamberlain at the guildhall for the time being, to the end that the same may there, according to the wise and prudent discretion of the governors of the said city, be corrected, punished, and duly redressed. and that all who are rebellious against the said wardens as to the survey and good rule of the same trades may be punished according to the general ordinance made as to rebellious persons in trades of the said city [fines and imprisonment]. and that it may please you to command that this petition, by your sagenesses granted, may be entered of record for time to come, for the love of god and as a work of charity." gutenberg's printing press, which used movable type of small blocks with letters on them, was brought to london in 1476 by a mercer: william caxton. it supplemented the text-writer and monastic copyist. it was a wood and iron frame with a mounted platform on which were placed small metal frames into which words with small letters of lead had been set up. each line of text had to be carried from the type case to the press. beside the press were pots filled with ink and inking balls. when enough lines of type to make a page had been assembled on the press, the balls would be dipped in ink and drawn over the type. then a sheet of paper would be placed on the form and a lever pulled to press the paper against the type. linen usually replaced the more expensive parchment for the book pages. the printing press made books more accessible to all literate people. caxton printed major english texts and some translations from french and latin. he commended different books to various kinds of readers, for instance, for gentlemen who understand gentleness and science, or for ladies and gentlewomen, or to all good folk. there were many cook books in use. there were convex eyeglasses for reading and concave ones for distance to correct near-sightedness. the first public library in london was established from a bequest in a will in 1423. many carols were sung at the christian festival of christmas. ballads were sung on many features of social life of this age of disorder, hatred of sheriffs, but faith in the king. the legend of robin hood was popular. town miracle plays on leading incidents of the bible and morality plays were popular. vintners portrayed the miracle of cana where water was turned into wine and goldsmiths ornately dressed the three kings coming from the east. in york, the building of noah's ark was performed by the shipwrights and the flood performed by the fishery and mariners. short pantomimes and disguising, forerunners of costume parties, were good recreation. games of cards became popular as soon as cards were introduced. the king, queen, and jack were dressed in contemporary clothes. men bowled, kicked footballs, and played tennis. in london, christmas was celebrated with masques and mummings. there was a great tree in the main market place and evergreen decorations in churches, houses, and streets. there were also games, dances, street bonfires in front of building doors, and general relaxation of social controls. sometimes there was drunken licentiousness and revelry, with peasants gathering together to make demands of lords for the best of his goods. may day was celebrated with crowns and garlands of spring flowers. the village may day pageant was often presided over by robin hood and maid marion. people turned to mysticism to escape from the everyday violent world. they read works of mystics, such as "scale of perfection" and "cloud of unknowing", the latter describing how one may better know god. they believed in magic and sorcery, but had no religious enthusiasm because the church was engendering more disrespect. monks and nuns had long ago resigned spiritual leadership to the friars; now the friars too lost much of their good reputation. the monks became used to life with many servants such as cooks, butlers, bakers, brewers, barbers, laundresses, tailors, carpenters, and farm hands. the austerity of their diet had vanished. the schedule of divine services was no longer followed by many and the fostering of learning was abandoned. into monasteries drifted the lazy and miserable. nunneries had become aristocratic boarding houses. the practice of taking sanctuary was abused; criminals and debtors sought it and were allowed to overstay the 40-day restriction and to leave at night to commit robberies. there were numerous chaplains, who were ordained because they received pay from private persons for saying masses for the dead; having to forego wife and family, they had much leisure time for mischief. church courts became corrupt, but jealously guarded their jurisdiction from temporal court encroachment. peter's pence was no longer paid by the people, so the burden of papal exaction fell wholly on the clergy. but the church was rich and powerful, paying almost a third of the whole taxation of the nation and forming a majority in the house of lords. many families had kinsmen in the clergy. even the lowest cleric or clerk could read and write in latin. people relied on saint's days as reference points in the year, because they did not know dates of the year. but townspeople knew the hour and minute of each day, because mechanical clocks were in all towns and in the halls of the well-to-do. this increased the sense of punctuality and highered standards of efficiency. a linguistic unity and national pride was developing. london english became the norm and predominated over rural dialects. important news was announced and spread by word of mouth in market squares and sometimes in churches. as usual, traders provided one of the best sources of news; they maintained an informal network of speedy messengers and accurate reports because political changes so affected their ventures. news also came from pedlars, who visited villages and farms to sell items that could not be bought in the local village. these often included scissors, eyeglasses, colored handkerchiefs, calendars, fancy leather goods, watches, and clocks. peddling was fairly profitable because of the lack of competition. but pedlars were often viewed as tramps and suspected of engaging in robbery as well as peddling. a royal post service was established by relays of mounted messengers. the first route was between london and the scottish border, where there were frequent battles for land between the scotch and english. the inland roads from town to town were still rough and without signs. a horseman could make up to 40 miles a day. common carriers took passengers and parcels from various towns to london on scheduled journeys. now the common yeoman could order goods from the london market, communicate readily with friends in london, and receive news of the world frequently. trade with london was so great and the common carrier so efficient in transporting goods that the medieval fair began to decline. first the grocers and then the mercers refused to allow their members to sell goods at fairs. there was much highway robbery. most goods were still transported by boats along the coasts, with trading at the ports. embroidery was exported. imported were timber, pitch, tar, potash [for cloth-dying], furs, silk, satin, gold cloth, damask cloth, furred gowns, gems, fruit, spices, and sugar. imports were restricted by national policy for the purpose of protecting native industries. english single-masted ships began to be replaced by two or three masted ships with high pointed bows to resist waves and sails enabling the ship to sail closer to the wind. 200 tuns was the usual carrying capacity. the increase in trade made piracy, even by merchants, profitable and frequent until merchant vessels began sailing in groups for their mutual protection. the astrolabe was used for navigation by the stars. consuls were appointed to assist english traders abroad. henry iv appointed the first admiral of the entire nation and resolved to create a national fleet of warships instead of using merchant ships. in 1417, the war navy had 27 ships. in 1421, portsmouth was fortified as a naval base. henry v issued the orders that formed the basic law of english admiralty and appointed surgeons to the navy and army. he was the last true warrior king. for defense of the nation, especially the safeguard of the seas, parliament allotted the king for life, 3s. for every tun of wine imported and an additional 3s. for every tun of sweet wine imported. from about 1413, tunnage on wine and poundage on merchandise were duties on goods of merchants which were regularly granted by parliament to the king for life for upkeep of the navy. before this time, such duties had been sporadic and temporary. the most common ailments were eye problems, aching teeth, festering ears, joint swelling and sudden paralysis of the bowels. epidemics broke out occasionally in the towns in the summers. the plague swept london in 1467 and the nation in 1407, 1445, and 1471. leprosy disappeared. infirmaries were supported by a tax of the king levied on nearby counties. the walls, ditches, gutters, sewers, and bridges on waterways and the coast were kept in repair by laborers hired by commissions appointed by the chancellor. those who benefited from these waterways were taxed for the repairs in proportion to their use thereof. alabaster was sculptured into tombs surmounted with a recumbent effigy of the deceased, and effigies of mourners on the sides. few townsmen choose to face death alone and planned memorial masses to be sung to lift his soul beyond purgatory. chantries were built by wealthy men for this purpose. chemical experimentation was still thought to be akin to sorcery, so was forbidden by king henry iv in 1404. gold was minted into coins: noble, half noble, and farthing. king henry iv lost power to the commons and the lords because he needed revenue from taxes and as a usurper king, he did not carry the natural authority of a king. the commons acquired the right to elect its own speaker. the lords who helped the usurpation felt they should share the natural power of the kingship. the council became the instrument of the lords. also, the commons gained power compared to the nobility because many nobles had died in war. the consent of the commons to legislation became so usual that the justices declared that it was necessary. the commons began to see itself as representative of the entire commons of the realm instead of just their own counties. its members had the freedom to consider and debate every matter of public interest, foreign or domestic, except for church matters. the commons, the poorest of the three estates, established an exclusive right to originate all money grants to the king in 1407. the speaker of the commons announced its money grant to the king only on the last day of the parliamentary session, after the answers to its petitions had been declared, and after the lords had agreed to the money grant. it tied its grants by rule rather than just practice to certain appropriations. for instance, tunnage and poundage were appropriated for naval defenses. wool customs went to the maintenance of calais, a port on the continent, and defense of the nation. it also put the petitions in statutory form, called "bills", to be enacted after consideration and amendment by all without alteration. each house had a right to deliberate in privacy. in the commons, members spoke in the order in which they stood up bareheaded. any member of parliament or either house or the king could initiate a bill. both houses had the power to amend or reject a bill. there were conferences between select committees of both houses to settle their differences. the commons required the appointment of auditors to audit the king's accounts to ensure past grants had been spent according to their purpose. it forced the king's council appointees to be approved by parliament and to be paid salaries. about 1430, kings' councilors were required to take an oath not to accept gifts of land, not to maintain private suits, not to reveal secrets, and not to neglect the kings' business. a quorum was fixed and rules made for removal from the council. for the next fifty years, the council was responsible both to the king and to parliament. this was the first encroachment on the king's right to summon, prorogue, or dismiss a parliament at his pleasure, determine an agenda of parliament, veto or amend its bills, exercise his discretion as to which lords he summoned to parliament, and create new peers by letters patent [official public letters]. parliament was affected by the factionalism of the times. the speaker of the commons was often an officer of some great lord. in 1426, the retainers of the barons in parliament were forbidden to bear arms, so they appeared with clubs on their shoulders. when the clubs were forbidden, they came with stones concealed in their clothing. kings created dukes and marquesses to be peers. a duke was given creation money or allowance of 40 pounds a year. a marquess was given 35 pounds. these new positions could not descend to an heiress, unlike a barony or earldom. an earl was given 20 pounds, which probably took the place of his one-third from the county. king henry vi gave the title of viscount to several people; it had an allowance of 13.3 pounds and was above baron. it allowed them to be peers. there were about 55 peers. in king edward iv's reign, the king's retinue had about 16 knights, 160 squires, 240 yeomen, clerks, grooms, and stablemen. the suitable annual expense of the household of the king was 13,000 pounds for his retinue of about 516 people, a duke 4,000 pounds for about 230 people, a marquess 3,000 pounds for about 224 people, an earl 2,000 pounds for about 130 people, a viscount 1,000 pounds for about 84 people, a baron 500 pounds for about 26 people, a banneret [a knight made in the field, who had a banner] 200 pounds for about 24 people, a knight bachelor 100 pounds for about 16 people, and a squire 50 pounds for about 16 people. of a squire's 50 pounds, about 25 pounds were spent in food, repairs and furniture 5, on horses, hay, and carriage 4, on clothes, alms and oblations 4, wages 9, livery of dress 3, and the rest on hounds and the charges of harvest and hay-time. many servants of the household of the country gentleman were poor relations. they might by education and accomplishment rise into the service of a baron who could take him to court and make his fortune. barons' households also included steward, chaplains, treasurer, accountants, chamberlain, carvers, servers, cupbearers, pages, and even chancellor. they were given wages and clothing allowances and had meals in the hall at tables according to their degree. the authority of the king's privy seal had become a great office of state which transmitted the king's wishes to the chancery and exchequer, rather than the king's personal instrument for sealing documents. now the king used a signet kept by his secretary as his personal seal. edward iv made the household office of secretary, who had custody the king's signet seal, a public office. the secretary was generally a member of the council. edward iv invented the benevolence, a gift wrung from wealthy subjects. king edward iv introduced an elaborate spy system, the use of the rack to torture people to give information, and other interferences with justice, all of which the tudor sovereigns later used. torture was used to discover facts, especially about co-conspirators, rather than to elicit a confession, as on the continent. it was only used on prisoners held in the tower of london involved in state trials and could only be authorized by the king's closest councilors in virtue of the royal prerogative. the rack stretched the supine body by the wrists and legs with increasing agony at the joints until the limbs were dislocated. some victims were permanently crippled by it; others died on it. most told what they knew, often at the very sight of the rack. torture was forbidden in the common law, which favored an accusatorial system, in which the accuser had to prove guilt, rather than an inquisitional system, in which the accused had to prove innocence. edward iv applied martial law to ordinary cases of high treason by extending the jurisdiction of the politicallyappointed high constable of england to these cases, thus depriving the accused of trial by jury. he executed many for treason and never restored their forfeited land to their families, as had been the usual practice. king richard iii prohibited the seizure of goods before conviction of felony. he also liberated the unfree villeins on royal estates. it was declared under parliamentary authority that there was a preference for the crown to pass to a king's eldest son, and to his male issue after him. formerly, a man could ascend to the throne through his female ancestry as well. the law the forcible entry statute is expanded to include peaceful entry with forcible holding after the justices arrived and to forcible holding with departure before the justices arrived. penalties are triple damages, fine, and ransom to the king. a forceful possession lasting three years is exempt. by common law, a tenant could not take away buildings or fixtures he built on land because it would be wasteful. this applied to agricultural fixtures, but not to other trade fixtures. also at common law, if a person had enjoyed light next to his property for at least 20 years, no one could build up the adjacent land so that the light would be blocked. women of age fourteen or over shall have livery of their lands and tenements by inheritance without question or difficulty. purposely cutting out another's tongue or putting out another's eyes is a felony [penalty of loss of all property]. no one may keep swans unless he has lands and tenements of the estate of freehold to a yearly value of 67s., because swans of the king, lords, knights, and esquires have been stolen by yeomen and husbandmen. the wage ceiling for servants is: bailiff of agriculture 23s.4d. per year, and clothing up to 5s., with meat and drink; chief peasant, a carter, chief shepherd 20s. and clothing up to 4s., with meat and drink; common servant of agriculture 15s., and clothing up to 3s.4d.; woman servant 10s., and clothing up to 4s., with meat and drink; infant under fourteen years 6s., and clothing up to 3s., with meat and drink. such as deserve less or where there is a custom of less, that lesser amount shall be given. for laborers at harvest time: mower 4d. with meat and drink or 6d. without; reaper or carter: 3d. with or 5d. without; woman laborer and other laborers: 2d with and 4d. without. the ceiling wage rate for craftsmen per day is: free mason or master carpenter 4d. with meat & drink or 5d. without; master tiler or slater, rough mason, and mesne [intermediary] carpenter and other artificiers in building 3d. with meat and drink or 4d. without; every other laborer 2d. with meat and drink or 3d. without. in winter the respective wages were less: mason category: 3d. with or 4d. without; master tiler category: 2d. with or 4d. without; others: 1d. with or 3d. without meat and drink. any servant of agriculture who is serving a term with a master and covenants to serve another man at the end of this term and that other man shall notify the master by the middle of his term so he can get a replacement worker. otherwise, the servant shall continue to serve the first master. no man or woman may put their son or daughter to serve as an apprentice in a craft within any borough, but may send the child to school, unless he or she has land or rent to the value of 20s. per year. [because of scarcity of laborers and other servants of agriculture] no laborer may be hired by the week. masons may no longer congregate yearly, because it has led to violation of the statute of laborers. no games may be played by laborers because they lead to [gambling and] murders and robberies. apparel worn must be appropriate to one's status to preserve the industry of agriculture. the following list of classes shows the lowest class, which could wear certain apparel: 1. lords gold cloth, gold corses, sable fur, purple silk 2. knights velvet, branched satin, ermine fur 3. esquires and gentlemen with possessions to the value of 800s. per year, daughters of a person who has possessions to the value of 2,000s. a year damask, silk, kerchiefs up to 5s. in value. 4. esquires and gentlemen with possessions to the yearly value of 800s. 40 pounds fur of martron or letuse, gold or silver girdles, silk corse not made in the nation, kerchief up to 3s.4d in value 5. men with possessions of the yearly value of 40s. excluding the above three classes fustian, bustian, scarlet cloth in grain 6. men with possessions under the yearly value of 40s. excluding the first three classes black or white lamb fur, stuffing of wool, cotton, or cadas. 7. yeomen cloth up to the value of 2s., hose up to the value of 14s., a girdle with silver, kerchief up to 12d. 8. servants of agriculture, laborer, servant, country craftsman none of the above clothes gowns and jackets must cover the entire trunk of the body, including the private parts. shoes may not have pikes over two inches. every town shall have at its cost a common balance with weights according to the standard of the exchequer. all citizens may weigh goods for free. all cloth to be sold shall be sealed according to this measure. there is a standard bushel of grain throughout the nation. there are standard measures for plain tile, roof tile, and gutter tile throughout the nation. no gold or silver may be taken out of the nation. the price of silver is fixed at 30s. for a pound, to increase the value of silver coinage, which has become scarce due to its higher value when in plate or masse. a designee of the king will inspect and seal cloth with lead to prevent deceit. cloth may not be tacked together before inspection. no cloth may be sold until sealed. heads of arrows shall be hardened at the points with steel and marked with the mark of the arrowsmith who made it, so they are not faulty. shoemakers and cordwainers may tan their leather, but all leather must be inspected and marked by a town official before it is sold. cordwainers shall not tan leather [to prevent deceitful tanning]. tanners who make a notorious default in leather which is found by a cordwainer shall make a forfeiture. defective embroidery for sale shall be forfeited. no fishing net may be fastened or tacked to posts, boats, or anchors, but may be used by hand, so that fish are preserved and vessels may pass. no one may import any articles which could be made in the nation, including silks, bows, woolen cloths, iron and hardware goods, harness and saddlery, except printed books. the following merchandise shall not be brought into the nation already wrought: woolen cloth or caps, silk laces, ribbons, fringes, and embroidery, gold laces, saddles, stirrups, harnesses, spurs, bridles, gridirons, locks, hammers, fire tongs, dripping pans, dice, tennis balls, points, purses, gloves, girdles, harness for girdles of iron steel or of tin, any thing wrought of any treated leather, towed furs, shoes, galoshes, corks, knives, daggers, woodknives, thick blunt needles, sheers for tailors, scissors, razors, sheaths, playing cards, pins, pattens [wooden shoes on iron supports worn in wet weather], pack needles, painted ware, forcers, caskets, rings of copper or of gilt sheet metal, chaffing dishes, hanging candlesticks, chaffing balls, mass bells, rings for curtains, ladles, skimmers, counterfeit felt hat moulds, water pitchers with wide spouts, hats, brushes, cards for wool, white iron wire, upon pain of their forfeiture. one half this forfeiture goes to the king and the other half to the person seizing the wares. no sheep may be exported, because being shorn elsewhere would deprive the king of customs. no wheat, rye, or barley may be imported unless the prices are such that national agriculture is not hurt. clothmakers must pay their laborers, such as carders and spinsters, in current coin and not in pins and girdles and the like. the term "freemen" in the magna carta includes women. the election of a knight from a county to go to parliament shall be proclaimed by the sheriff in the full county so all may attend and none shall be commanded to do something else at that time. election is to be by majority of the votes and its results will be sealed and sent to parliament. electors and electees to parliament must reside in the county or be citizens or burgesses of a borough. to be an elector to parliament, a knight must reside in the county and have a freehold of land or tenements there of the value of at least 40s. per year, because participation in elections of too many people of little substance or worth had led to homicides, assaults, and feuds. (these "yeomen" were about one sixth of the population. most former electors and every leaseholder and every copyholder were now excluded. those elected for parliament were still gentry chosen by substantial freeholders.) london ordinances forbade placing rubbish or dung in the thames river or any town ditch or casting water or anything else out of a window. the roads were maintained with tolls on carts and horses bringing victuals or grains into the city and on merchandise unloaded from ships at the port. no carter shall drive his cart more quickly when it is unloaded than when it is loaded. no pie bakers shall sell beef pies as venison pies, or make any meat pie with entrails. to assist the poor, bread and ale shall be sold by the farthing. desertion by a soldier is penalized by forfeiture of all land and property. the common law held that a bailee is entitled to possession against all persons except the owner of the bailed property. former justice sir thomas littleton wrote a legal textbook describing tenancies in dower; the tenures of socage, knight's service, serjeanty, and burgage; estates in fee simple, fee tail, and fee conditional; inheritance and alienation of land. for instance, "also, if feoffment be made upon such condition, that if the feoffor pay to the feofee at a certain day, etc., 800s. forty pounds of money, that then the feoffor may re-enter, etc., in this case the feoffee is called tenant in mortgage, ... and if he doth not pay, then the land which he puts in pledge upon condition for the payment of the money is gone from him for ever, and so dead as to the tenant, etc." joint tenants are distinguished from tenants in common by littleton thus: "joint-tenants are, as if a man be seised of certain lands or tenements, etc., and thereof enfeoffeth two, or three, or four, or more, to have and to hold to them (and to their heirs, or letteth to them) for term of their lives, or for term of another's life; by force of which feoffment or lease they are seised, such are joint-tenants. ... and it is to be understood, that the nature of joint-tenancy is, that he that surviveth shall have solely the entire tenancy, according to such estate as he hath, ..." "tenants in common are they that have lands or tenements in fee-simple, fee-tail, or for term of life, etc., the which have such lands and tenements by several title, and not by joint title, and neither of them knoweth thereof his severalty, but they ought by the law to occupy such lands or tenements in common pro indiviso [undivided], to take the profits in common. ...as if a man enfeoff two joint-tenants in fee, and the one of them alien that which to him belongeth to another in fee, now the other joint-tenant and the alienee are tenants in common, because they are in such tenements by several titles, ..." there are legal maxims and customs of ancient origin which have become well established and known though not written down as statutes. some delineated by christopher st. germain in "doctor and student" in 1518 are: 1. the spouse of a deceased person takes all personal and real chattels of the deceased. 2. for inheritance of land, if there are no descendant children, the brothers and sisters take alike, and if there are none, the next blood kin of the whole blood take, and if none, the land escheats to the lord. land may never ascend from a son to his father or mother. 3. a child born before espousals is a bastard and may not inherit, even if his father is the husband. 3. if a middle brother purchases lands in fee and dies without heirs of his body, his eldest brother takes his lands and not the younger brother. the next possible heir in line is the younger brother, and the next after him, the father's brother. 4. for lands held in socage, if the heir is under 14, the next friend to the heir, to whom inheritance may not descend, shall have the ward of his body and lands until the heir is 14, at which time the heir may enter. 5. for lands held by knight's service, if the heir is under 14, then the lord shall have the ward and marriage of the heir until the heir is 21, if male, or 14 (changed to 16 in 1285), if female. when of age, the heir shall pay relief. 6. a lease for a term of years is a real chattel rather than a free tenement, and may pass without livery of seisin. 7. he who has possession of land, though it is by disseisin, has right against all men but against him who has right. 8. if a tenant is past due his rent, the lord may distrain his beasts which are on the land. 9. all birds, fowls, and wild beasts of the forest and warren are excepted out of the law and custom of property. no property may be had of them unless they are tame. however, the eggs of hawks and herons and the like belong to the man whose land they are on. 10. if a man steals goods to the value of 12d., or above, it is felony, and he shall die for it. if it is under the value of 12d., then it is but petit larceny, and he shall not die for it, but shall be punished at the discretion of the judges. this not apply to goods taken from the person, which is robbery, a felony punishable by death. 11. if the son is attainted [convicted of treason or felony with the death penalty and forfeiture of all lands and goods] in the life of the father, and after he purchases his charter of pardon of the king, and after the father dies; in this case the land shall escheat to the lord of the fee, insomuch that though he has a younger brother, yet the land shall not descend to him: for by the attainder of the elder brother the blood is corrupt, and the father in the law died without heir. 12. a man declared outlaw forfeits his profits from land and his goods to the king. 13. he who is arraigned upon an indictment of felony shall be admitted, in favor of life, to challenge thirty-five inquirers (three whole inquests would have thirty-six) peremptorily. with cause, he may challenge as many as he has cause to challenge if he can prove it. such peremptory challenge shall not be admitted in a private suit. 14. an accessory shall not be put to answer before the principal. 15. if a man commands another to commit a trespass, and he does it, the one who made the command is a trespasser. 16. the land of every man is in the law enclosed from other, though it lies in the open field, and a trespasser in it may be brought to court. 17. every man is bound to make recompense for such hurt as his beasts do in the growing grain or grass of his neighbor, though he didn't know that they were there. 18. if two titles are concurrent together, the oldest title shall be preferred. 19. he who recovers debt or damages in the king's court when the person charged is not in custody, may within a year after the judgment take the body of the defendant, and commit him to prison until he has paid the debt and damages. 20. if the demandant or plaintiff, hanging his writ (writ pending in court), will enter into the thing demanded, his writ shall abate. 21. by the alienation of the tenant, hanging the writ, or his entry into religion, or if he is made a knight, or she is a woman and takes a husband hanging the writ, the writ shall not abate. 22. the king may disseise no man and no man may disseise the king, nor pull any reversion or remainder out of him. judicial procedure the prohibition against maintenance was given penalties in 1406 of 100s. per person for a knight or lower giving livery of cloth or hats, and of 40s. for the receiver of such. a person who brought such suit to court was to be given half the penalty. the justices of assize and king's bench were authorized to inquire about such practices. the statute explicitly included ladies and any writing, oath, or promise as well as indenture. excepted were guilds, fraternities, and craftsmen of cities and boroughs which were founded on a good purpose, universities, the mayor and sheriffs of london, and also lords, knights, and esquires in time of war. a penalty of one year in prison without bail was given. in 1468, there was a penalty of 100s. per livery to the giver of such, 100s. per month to the retainer or taker of such, and 100s. per month to the person retained. still this law was seldom obeyed. people took grievances outside the confines of the rigid common law to the chancellor, who could give equitable remedies under authority of a statute of 1285 (described in chapter 8). the chancery heard many cases of breach of faith in the "use", a form of trust in which three parties were involved: the holder of land, feofees to whom the holder had made it over by conveyance or "bargain and sale", and the beneficiary or receiver of the profits of the land, who was often the holder, his children, relatives, friends, an institution, or a corporation. this system of using land had been created by the friars to get around the prohibition against holding property. lords and gentry quickly adopted it. the advantages of the use were that 1) there was no legal restriction to will away the beneficial interest of the use although the land itself could not be conveyed by will; 2) it was hard for the king to collect feudal incidents because the feoffees were often unknown 3) the original holder was protected from forfeiture of his land in case of conviction of treason if the crown went to someone he had not supported. chancery gave a remedy for dishonest or defaulting feofees. chancery also provided the equitable relief of specific performance in disputes over agreements, for instance, conveyance of certain land, whereas the common law courts awarded only monetary damages by the writ of covenant. chancery ordered accounts to be made in matters of foreign trade because the common law courts were limited to accounts pursuant to transactions made within the nation. it also involved itself in the administration of assets and accounting of partners to each other. the chancellor took jurisdiction of cases of debt, detinue, and account which had been decided in other courts with oath-helping by the defendant. he did not trust the reliance on friends of the defendant swearing that his statement made in his defense was true. an important evidentiary difference between procedures of the chancery and the common law courts was that the chancellor could orally question the plaintiff and the defendant under oath. he also could order persons to appear at his court by subpoena [under pain of punishment, such as a heavy fine]. whereas the characteristic award of the common law courts was seisin of land or monetary damages, chancery often enjoined certain action. because malicious suits were a problem, the chancery identified such suits and issued injunctions against taking them to any court. the chancery was given jurisdiction by statute over men of great power taking by force women who had lands and tenements or goods and not setting them free unless they bound themselves to pay great sums to the offenders or to marry them. a statute also gave chancery jurisdiction over servants taking their masters' goods at his death. justices of the peace, appointed by the crown, investigated all riots and arrested rioters, by authority of statute. if they had departed, the justices certified the case to the king. the case was then set for trial first before the king and his council and then at the king's bench. if the suspected rioters did not appear at either trial, they could be convicted for default of appearance. if a riot was not investigated and the rioters sought, the justice of the peace nearest forfeited 2,000s. justices of the peace were not paid. for complex cases and criminal cases with defendants of high social status, they deferred to the justices of assize, who rode on circuit once or twice a year. since there was no requirement of legal knowledge for a justice of the peace, many referred to the "boke of the justice of the peas" compiled about 1422 for them to use. manor courts still formally admitted new tenants, registered titles, sales of land and exchanges of land, and commutation of services, enrolled leases and rules of succession, settled boundary disputes, and regulated the village agriculture. all attorneys shall be examined by the royal justices for their learnedness in the law and, at their discretion, those that are good and virtuous shall be received to make any suit in any royal court. these attorneys shall be sworn to serve well and truly in their offices. attorneys may plead on behalf of parties in the hundred courts. a qualification for jurors was to have an estate to one's own use or one of whom other persons had estates of fee simple, fee tail, or freehold in lands and tenements, which were at least 40s. per year in value. in a plea of land worth at least 40s. yearly or a personal plea with relief sought at least 800s., jurors had to have land in the bailiwick to the value of at least 400s., because perjury was considered less likely in the more sufficient men. in criminal cases, there were many complaints made that the same men being on the grand assize and petty assize was unfair because prejudicial. so it became possible for a defendant to challenge an indictor for cause before the indictor was put on the petty assize. then the petty assize came to be drawn from the country at large and was a true petty or trial jury. jurors were separated from witnesses. justices of the peace were to have lands worth 267s. yearly, because those with less had used the office for extortion and lost the respect and obedience of the people. a sheriff was not to arrest, but to transfer indictments to the justices of the peace of the county. he had to reside in his bailiwick. the sheriff could be sued for misfeasance such as bribery in the king's court. impeachment was replaced with bill of attainder during the swift succession of parliaments during the civil war. this was a more rapid and efficient technique of bringing down unpopular ministers or political foes. there was no introduction of evidence, nor opportunity for the person accused to defend himself, nor any court procedure, as there was with impeachment. an example of a case of common law decided by court of king's bench is russell's case (1482) as follows: in the king's bench one thomas russell and alice his wife brought a writ of trespass for goods taken from alice while she was single. the defendant appeared and pleaded not guilty but was found guilty by a jury at nisi prius, which assessed the damages at 20 pounds. before the case was next to be heard in the king's court an injunction issued out of the chancery to the plaintiffs not to proceed to judgment, on pain of 100 pounds, and for a long time judgment was not asked for. then hussey cjkb. asked spelman and fincham, who appeared for the plaintiff if they wanted to ask for judgment according to the verdict. fincham [p]: we would ask for judgment, except for fear of the penalty provided for in the injunction, for fear that our client will be imprisoned by the chancellor if he disobeys. fairfax, jkb: he can ask for judgment in spite of the injunction, for if it is addressed to the plaintiff his attorney can ask for judgment, and vice versa. hussey, cjkb: we have consulted together on this matter among ourselves and we see no harm which can come to the plaintiff if he proceeds to judgment. the law will not make him pay the penalty provided in the injunction. if the chancellor wants to imprison him he must send him to the fleet prison, and, as soon as you are there you will inform us and we shall issuea habeas corpus returnable before us, and when you appear before us we shall discharge you, so you will not come to much harm, and we shall do all we can for you. nevertheless, fairfax said he would go to the chancellor and ask him if he would discharge the injunction. and they asked for judgment and it was held that they should recover their damages as assessed by the jury, but they would not give judgment for damages caused by the vexation the plaintiff suffered through the chancery injunction. and they said that if the chancellor would not discharge the injunction, they would give judgment if the plaintiff would ask for it. an example of a petition to chancery in the 15th century is hulkere v. alcote, as follows: to the right reverend father in god and gracious lord bishop of bath, chancellor of england, your poor and continual bedwoman lucy hulkere, widow of westminster, most meekly and piteously beseeches: that whereas she has sued for many years in the king's bench and in the common pleas for withholding diverse charters and evidences of land, leaving and delaying her dower of the manor of manthorpe in lincolnshire and also of the manor of gildenburton in northamptonshire, together with the withdrawing of her true goods which her husband gave her on his deathbed to the value of 100 pounds and more, under record of notary, sued against harry alcote and elizabeth of the foresaid gildenburton within the same county of northampton. and by collusion and fickle counsel of the foresaid harry and elizabeth his mother there was led and shown for him within the common pleas a false release, sealed, to void and exclude all her true suit by record of true clerks and attorneys of the aforesaid common pleas. of the which false release proved she has a copy to show. [all this is] to her great hindrance and perpetual destruction unless she have help and remedy by your righteous and gracious lordship in this matter at this time. that it please your noble grace and pity graciously to grant a writ subpena to command the foresaid henry alcote and elizabeth alcote to come before your presence by a certain day by you limited in all haste that they may come to westminster to answer to this matter abovesaid, for love of god and adeed of charity, considering graciously that the foresaid harry alcote, with another fellow of his affinity who is not lately hanged for a thief in franceled her into a garden at gildenburton and put her down on the ground, laying upon her body a board and a summer saddle and great stones upon the board, the foresaid harry alcote sitting across her feet and the other at her head for to have slain her and murdered her, and by grace of our lady her motherin-law out walking heard a piteous voice crying and by her goodness she was saved and delivered, and otherwise would be dead. pledges to prosecute: john devenshire of berdevyle in essex and james kelom of london. returnable in michaelmas term. chapter 11 the times: 1485-1509 henry tudor and other exiles defeated and killed richard iii on bosworth field, which ends the civil war of the roses between the lancaster and york factions. as king, henry vii restored order to the nation. he was readily accepted as king because he was descended from the lancaster royal line and he married a woman from the york royal line. henry was intelligent and sensitive. he weighed alternatives and possible consequences before taking action. he was convinced by reason on what plans to make. his primary strategy was enacting and enforcing statutes to shore up the undermined legal system, which includes the establishment of a new court: the court of the star chamber, to obtain punishment of persons whom juries were afraid to convict. it had no jury and no grand jury indictment. for speed and certainty, it tried people "ex officio": by virtue of its office. suspects were required to take an oath ex officio, by which they swore to truthfully answer all questions put to them. a man could not refuse to answer on the grounds of self-incrimination. the star chamber was the room in which the king's council had met since the 1300s. in his reign of 24 years, henry applied himself diligently to the details of the work of government to make it work well. he strengthened the monarchy, shored up the legal system to work again, and provided a peace in the land in which a renaissance of the arts and sciences, culture, and the intellectual life could flourish. the most prevalent problems were: murder, robbery, rape or forced marriage of wealthy women, counterfeiting of coin, extortion, misdemeanors by sheriffs and escheators, bribing of sheriffs and jurors, perjury, livery and maintenance agreements, idleness, unlawful plays, and riots. interference with the course of justice was not committed only by lords on behalf of their retainers; men of humbler station were equally prone to help their friends in court or to give assistance in return for payment. rural juries were intimidated by the old baronage and their armed retinues. juries in municipal courts were subverted by gangs of townsmen. justices of the peace didn't enforce the laws. the agricultural work of the nation had been adversely affected. henry made policy with the advice of his council and had parliament enact it into legislation. he dominated parliament by having selected most of its members. many of his council were sons of burgesses and had been trained in universities. he chose competent and especially trusted men for his officers and commanders of castles and garrison. the fact that only the king had artillery deterred barons from revolting. also, the baronial forces were depleted due to civil war of the roses. if henry thought a magnate was exercising his territorial power to the king's detriment, he confronted him with an army and forced him to bind his whole family in recognizances for large sums of money to ensure future good conduct. since the king had the authority to interpret these pledges, they were a formidable check on any activity which could be considered to be disloyal. the earl of kent, whose debts put him entirely at the king's mercy, was bound to "be seen daily once in the day within the king's house". henry also required recognizances from men of all classes, including clergy, captains of royal castles, and receivers of land. the higher nobility now consisted of about twenty families. the heavy fines by the star court put an end to conspiracies to defraud, champerty [an agreement with a litigant to pay costs of litigation for a share in the damages awarded], livery, and maintenance. the ties between the nobility and the justices of the peace had encouraged corruption of justice. so henry appointed many of the lesser gentry and attorneys as justices of the peace. also he appointed a few of his councilors as non-resident justices of the peace. there were a total of about thirty justices of the peace per county. their appointments were indefinite and most remained until retirement or death. henry instituted the yeomen of the guard to be his personal bodyguards night and day. many bills of attainder caused lords to lose their land to the king. most of these lords had been chronic disturbers of the peace. henry required retainers to be licensed, which system lasted until about 1600. henry was also known to exhaust the resources of barons he suspected of disloyalty by accepting their hospitality for himself and his household for an extended period of time. henry built up royal funds by using every available procedure of government to get money, by maximizing income from royal estates by transferring authority over them from the exchequer to knowledgeable receivers, and from forfeitures of land and property due to attainders of treason. he also personally reviewed all accounts and initialed every page, making sure that all payments were made. he regularly ordered all men with an income of 800s. [40 pounds] yearly from lands or revenue in hand to receive knighthoods, which were avoided by those who did not want to fight, or pay a high fee. as a result, the crown became rich and therefore powerful. henry's queen, elizabeth, was a good influence on his character. her active beneficence was a counteracting influence to his avaricious predisposition. when henry and his queen traveled through the nation, they often stopped to talk to the common people. they sometimes gave away money, such as to a man who had lost his hand. henry paid for an intelligent boy he met to go to school. henry had the first paper mill erected in the nation. he fostered the reading of books and the study of roman law, the classics, and the bible. he had his own library and gave books to other libraries. the age of entry to university was between 13 and 16. it took four years' study of grammar, logic, and rhetoric to achieve the bachelor of arts degree and another five before a master could begin a specialized study of the civil law, canon law, theology, or medicine. arabic numbers replaced roman numerals, making multiplication and division possible. humanist studies were espoused by individual scholars at the three centers of higher learning: oxford university, cambridge university, and the inns of court in london. the inns of court attracted the sons of gentry and merchants pursuing practical and social accomplishments. the text of 'readings' to members of the inns survive from this time. in the legalistic climate of these times, attorneys were prosperous. the enclosure of land by hedges for sheep farming continued, especially by rich merchants who bought country land for this purpose. often this was land that had been under the plough. any villeins were given their freedom and they and the tenants at will were thrown off it immediately. that land held by copyholders of land who had only a life estate, was withheld from their sons. only freeholders and copyholders with the custom of the manor in their favor were secure against eviction. but they could be pressured to sell by tactics such as breeding rabbits or keeping geese on adjoining land to the detriment of their crops, or preventing them from taking their traditional short cuts across the now enclosed land to their fields. the real line of distinction between rural people was one of material means instead of legal status: free or unfree. on one extreme was the well-to-do yeoman farmer farming his own land. on the other extreme was the agricultural laborer working for wages. henry made several proclamations ordering certain enclosures to be destroyed and tillage to be restored. other land put to use for sheep breeding was waste land. there were three sheep to every person. the nearby woodlands no longer had wolves or lynx who could kill the sheep. bears and elk are also gone. there were still deer, wild boar, wildcats and wild cattle in vast forests for the lords to hunt. wood was used for houses, arms, carts, bridges, and ships. the villages were still isolated from each other, so that a visitor from miles away was treated as warily as a foreigner. most people lived and died where they had been born. a person's dialect indicated his place of origin. the life of the village still revolved around the church. in some parishes, its activities were highly organized, with different groups performing different functions. for example, the matrons looked after a certain altar; the maidens raised money for a chapel or saw to the gilding of the images; the older men collected money for church repair; and the younger men organized the church ales and the church plays. wills often left property or rents from leased land to the church. cows and sheep given could be leased out to villagers. buildings given could be leased out, turned over to the poor, used to brew ale or bake bread for church ales, or used in general as a place for church activities. church ales would usually a good source of income; alehouses would be closed during the ceremonies and parishioners would contribute malt for the ale and grain, eggs, butter, cheese, and fruits. the largest town, london, had a population of about 70,000. other towns had a population less than 20,000. the population was increasing, but did not reach the level of the period just before the black death. in most large towns, there were groups of tailors and hatmakers, glovers, and other leatherworkers. some towns had a specialization due to their proximity to the sources of raw materials, such as nails, cutlery, and effigies and altars. despite the spread of wool manufacturing to the countryside, there was a marked increase of industry and prosperity in the towns. the principal streets of the larger towns were paved with gravel. guild halls became important and imposing architecturally. a large area of london was taken up by walled gardens of the monasteries and large mansions. there were some houses of stone and timber and some mansions of brick and timber clustered around palaces. in these, bedrooms increased in number, with rich bed hangings, linen sheets, and bolsters. bedspreads were introduced. nightgowns were worn. fireplaces became usual in all the rooms. tapestries covered the walls. carpets were used in the private rooms. some of the great halls had tiled floors. the old trestle tables were replaced by tables with legs. benches and stools had backs to lean on. women and men wore elaborate headdresses. there are guilds of ironmongers, salters, and haberdashers [hats and caps]. on the outer periphery are mud and straw taverns and brothels. houses are beginning to be built outside the walls along the thames because the collapse of the power of the great feudal lords decreased the fear of an armed attack on london. the merchants introduced this idea of living at a distance from the place of work so that they could escape living in the narrow, damp, and dark lanes of the city and have more light and space. indeed no baronial army ever threatened the king again. east of london were cattle pastures, flour mills, bakers, cloth-fulling mills, lime burners, brick and tile makers, bell-founders, and ship repairing. there was a drawbridge on the south part of london bridge for defense and to let ships through. water sports were played on the thames such as tilting at each other with lances from different boats. the tailors' and linen armorers' guild received a charter in 1503 from the king as the "merchant tailors" to use all wares and merchandise, especially wool cloth, as well wholesale as retail, throughout the nation. some schooling was now being made compulsory in certain trades; the goldsmiths' company made a rule that all apprentices had to be able to read and write. a yeoman was the second-rank person of some importance, below a knight, below a gentleman, below a full member of a guild. in london, it meant the journeyman or second adult in a small workshop. these yeomen had their own fraternities and were often on strike. some yeomen in the large london industries, e.g. goldsmiths, tailors, clothworkers, who had served an apprenticeship started their own businesses in london suburbs outside the jurisdiction of their craft to search them. the merchant adventurers created a london fellowship confederacy to make membership of their society and compliance with its regulations binding on all cloth traders and to deal with common interests and difficulties such as taxation, relations with rulers, and dangers at sea. they made and enforced trading rules, chartered fleets, and organized armed convoys when the seas were unsafe and coordinated policies with henry vii. membership could be bought for a large fee or gained by apprenticeship or by being the son of a member. foreign trade was revived because it was a period of comparative peace. the nation sought to sell as much as possible to foreign nations and to buy at little as possible and thereby increase its wealth in gold and silver, which could be used for currency. ships weighed 200 tons and had twice the cargo space they had previously. their bows were more pointed and their high prows made them better able to withstand gales. the mariners' compass with a pivoting needle and circular dial with a scale was introduced. the scale gave precision to directions. ships had three masts. on the first was a square sail. on the second was a square sail with a small rectangular sail above it. on the third was a three cornered lateen sail. these sails make it possible to sail in almost any direction. this opened the seas of the world to navigation. at this time navigators kept their knowledge and expertise secret from others. adventurous seamen went on voyages of discovery, such as john cabot to north america in 1497, following italian christopher columbus' discovery of the new world in 1492. ferdinand magellan of portugal circumnavigated the world in 1519, proving uncontrovertedly that the earth was spherical rather than flat. sailors overcame their fear of tumbling into one of the openings into hell that they believed were far out into the atlantic ocean and ceased to believe that a red sunset in the morning was due to a reflection from hell. seamen could venture forth into the darkness of the broad atlantic ocean with a fair expectation of finding their way home again. they gradually learned that there were no sea serpents or monsters that would devour foolhardy mariners. they learned to endure months at sea on a diet of salt beef, beans, biscuits, and stale water and the bare deck for a bed. but there were still mutinies and disobedient pilots. mortality rates among seamen were high. theologians had to admit that jerusalem was not the center of the world. there are more navy ships, and they have some cannon. the blast furnace was introduced in the iron industry. a blast of hot air was constantly forced from a stove into the lower part of the furnace which was heating at high temperature a mixture of the iron ore and a reducing agent that combined with the oxygen released. after the iron was extracted, it was allowed to harden and then reheated and hammered on an anvil to shape it and to force out the hard, brittle impurities. blast furnace heat was maintained by bellows worked by water wheels. alchemists sought to make gold from the baser metals and to make a substance that would give them immortality. there was some thought that suffocation in mines, caverns, wells, and cellars was not due to evil spirits, but to bad air such as caused by "exhalation of metals". there were morality plays in which the seven deadly sins: pride, covetousness, lust, anger, gluttony, envy, and sloth, fought the seven cardinal virtues: faith, hope, charity, prudence, temperance, justice, and strength, respectively, for the human soul. the play "everyman" demonstrates that every man can get to heaven only by being virtuous and doing good deeds in his lifetime. it emphasizes that death may come anytime to every man, when his deeds will be judged as to their goodness or sinfulness. card games were introduced. the legend of robin hood was written down. the commons gained the stature of the lords and statutes were regularly enacted by the "assent of the lords spiritual and temporal and the commons", instead of at the request of the commons. the law royal proclamations clarifying, refining or amplifying the law had the force of parliamentary statutes. in 1486, he proclaimed that "forasmuch as many of the king our sovereign lord's subjects [have] been disposed daily to hear feigned, contrived, and forged tidings and tales, and the same tidings and tales, neither dreading god nor his highness, utter and tell again as though they were true, to the great hurt of divers of his subjects and to his grievous displeasure: therefore, in eschewing of such untrue and forged tidings and tales, the king our said sovereign lord straitly chargeth and commandeth that no manner person, whatsoever he be, utter nor tell any such tidings or tales but he bring forth the same person the which was author and teller of the said tidings or tales, upon pain to be set on the pillory, there to stand as long as it shall be thought convenient to the mayor, bailiff, or other official of any city, borough, or town where it shall happen any such person to be taken and accused for any such telling or reporting of any such tidings or tales. furthermore the same our sovereign lord straitly chargeth and commandeth that all mayors, bailiffs, and other officers diligently search and inquire of all such persons tellers of such tidings and tales not bringing forth the author of the same, and them set on the pillory as it is above said." he also proclaimed in 1487 that no one, except peace offiers, may carry a weapon, e.g. bows, arrows, or swords, in any town or city unless on a journey. he proclaimed in 1498 that no one may refuse to receive silver pennies or other lawful coin as payment regardless of their condition as clipped, worn, thin, or old, on pain of imprisonment and further punishment. statutes included: lords holding castles, manors, lands and tenements by knight's service of the king shall have a writ of right for wardship of the body as well as of the land of any minor heir of a deceased person who had the use [beneficial enjoyment] of the land for himself and his heirs as if the land had been in the possession of the deceased person. and if such an heir is of age, he shall pay relief to the lord as if he had inherited possession of the land. an heir in ward shall have an action of waste against his lord as if his ancestor had died seised of the land. that is, lands of "those who use" shall be liable for execution of his debt and to the chief lord for his relief and heriot, and if he is a bondsman, they may be seized by the lord. the king tried to retain the benefits of feudal incidents on land by this statute of uses, but attorneys sought to circumvent it by drafting elaborate and technical instruments to convey land free of feudal burdens. any woman who has an estate in dower, or for a term of life, or in tail, jointly with her husband, or only to herself, or to her use, in any manors, lands, tenements, or other hereditaments of the inheritance or purchase of her husband, or given to the said husband and wife in tail, or for term of life, by any of the ancestors of the said husband, or by any other person seised to the use of the said husband, or of his ancestors, who, by herself or with any after taken husband; discontinue, alienate, release, confirm with warranty or, by collusion, allow any recovery of the same against them or any other seised to their use, such action shall be void. then, the person to whom the interest, title, or inheritance would go after the death of such woman may enter and possess such premises. this does not affect the common law that a woman who is single or remarried may give, sell, or make discontinuance of any lands for the term of her life only. all deeds of gift of goods and chattels made of trust, to the use of the giver [grantor and beneficiary of trust], to defraud creditors are void. it is a felony to carry off against her will, a woman with lands and tenements or movable goods, or who is heir-apparent to an ancestor. this includes taking, procuring, abetting, or knowingly receiving a woman taken against her will. a vagabond, idle, or suspected person shall be put in the stocks for three days with only bread and water, and then be put out of the town. if he returns, he shall spend six days in the stocks. (a few years later this was changed to one and three days, respectively.) every beggar who is not able to work, shall return to the hundred where he last dwelled, is best known, or was born and stay there. no one may take pheasants or partridges by net snares or other devices from his own warren [breeding ground], upon the freehold of any other person, or forfeit 200s., one half to the owner of the land and the other half to the suer. no one may take eggs of any falcon, hawk, or swan out of their nest, whether it is on his land or any other man's land, on pain of imprisonment for one year and fine at the king's will, one half to the king, and the other half to the holder of the land, or owner of the swan. no man shall bear any english hawk, but shall have a certificate for any hawk imported, on pain for forfeiture of such. no one shall drive falcons or hawks from their customary breeding place to another place to breed or slay any for hurting him, or pay 200s. after examination by a justice of the peace, one half going to the king and one half to the suer. any person without a forest of his own who has a net device with which to catch deer shall pay 200s. for each month of possession. anyone stalking a deer with beasts anywhere not in his own forest shall forfeit 200s. anyone taking any heron by device other than a hawk or long bow shall forfeit 6s.8d. no one shall take a young heron from its nest or pay 10s. for each such heron. two justices may decide such an issue, and one tenth of the fine shall go to them. no man shall shoot a cross-bow except in defense of his house, other than a lord or one having 2,667s. of land because their use had resulted in too many deer being killed. (the long-bow was not forbidden.) no beasts may be slaughtered or cut up by butchers within the walls of a town, or pay 12d. for every ox and 8d. for every cow or other beast, so that people will not be annoyed and distempered by foul air, which may cause them sickness. no tanner may be a currier [dressed, dyed, and finished tanned leather] and no currier may be a tanner. no shoemaker [cordwainer] may be a currier and no currier may be a shoemaker. no currier shall curry hides which have not been tanned. no tanner shall sell other than red leather. no tanner may sell a hide before it is dried. no tanner may tan sheepskins. no long bow shall be sold over the price of 3s.4d. good wood for making bows may be imported without paying customs. no grained cloth of the finest making shall be sold for more than 16s., nor any other colored cloth for more than 11s. per yard, or forfeit 40s. for every yard so sold. no hat shall be sold for more than 20d. and no cap shall be sold for more than 2s.8d., or forfeit 40s. for each so sold. silver may not be sold or used for any use but goldsmithery or amending of plate to make it good as sterling, so that there will be enough silver with which to make coinage. each feather bed, bolster, or pillow for sale shall be stuffed with one type of stuffing, that is, dry pulled feathers or with clean down alone, and with no sealed feathers nor marsh grass, nor any other corrupt stuffings. each quilt, mattress, or cushion for sale shall be stuffed with one type of stuffing, that is, clean wool, or clean flocks alone, and with no horsehair, marsh grass, neatshair, deershair, or goatshair, which is wrought in lime-fats and gives off an abominable and contagious odor when heated by a man's body, on pain of forfeiture of such. salmon shall be sold by standard volume butts and barrels. large salmon shall be sold without any small fish or broken-bellied salmon and the small fish shall be packed by themselves only, or forfeit 6s.8d. herring shall be sold at standard volumes. the herring shall be as good in the middle and in every part of the package as at the ends of the package, or forfeit 3s.4d. eels shall be sold at standard volumes, and good eels shall not be mixed with lesser quality eels, or forfeit 10s. the fish shall be packed in the manner prescribed or forfeit for each vessel 3s.4d. fustians shall always be shorn with the long shear, so that it can be worn for at least two years. if an iron or anything else used to dress such injures the cloth so that it wears out after four months, 20s. shall be forfeited for each default, one half to the king and the other half to the suer. pewter and brass ware for sale shall be of the quality of that of london and marked by its maker, on pain of forfeiture of such, and may be sold only at open fairs and markets or in the seller's home, or forfeit 200s. if such false ware is sold, its maker shall forfeit its value, one half to the king and one half to the searchers. anyone using false weights of such wares shall forfeit 20s., one half to the king and one half to the suer, or if he cannot pay this fine, to be put in the stocks until market day and then be put in the pillory all the market time. no alien nor denizen [foreigner allowed to reside in the nation with certain rights and privileges] may carry out of the nation any raw wool or any woolen cloth which has not been barbed, rowed, and shorn. silk ribbons, laces, and girdles of silk may not be imported, since they can be made in the nation. no one shall import wine into the nation, but on english ships, or forfeit the wine, one half to the king and one half to the seizer of the wine. no one may take out of the nation any [male] horse or any mare worth more than 6s.8s. or under the age of three years, upon pain of forfeiture of such. however, a denizen may take a horse for his own use and not to sell. this is to stop losing horses needed for defense of the nation and to stop the price of a horse from going up. freemen of london may go to fairs and markets with wares to sell, despite the london ordinance to the contrary. merchants residing in the nation but outside london shall have free access to foreign markets without exaction taken of more than 133s. sterling by the confederacy of london merchants, which have increased their fee so much, 400s., that merchants not in the confederacy have been driven to sell their goods in london for less than they would get at a foreign market. exacting more is punishable by a fine of 400s. and damages to the grieved party of ten times the excess amount taken. for the privilege of selling merchandise, a duty of scavage shall be taken of merchant aliens, but not of denizens. any town official who allows disturbing of a person trying to sell his merchandise because he has not paid scavage, shall pay a fine of 400s. coin clipped or diminished shall not be current in payment, but may be converted at the king's mint into plate or bullion. anyone refusing to take coins with only normal wear may be imprisoned by the mayor, sheriff, bailiff, constable or other chief officer. new coins, which have a circle or inscription around the outer edge, will be deemed clipped if this circle or inscription is interfered with. the penalty for usury is placement in the pillory, imprisonment for half a year, and a fine of 400s. (the penalty was later changed to one half thereof.) lawbooks in use at the inns of court included "the books of magna carta with diverse old statutes", "doctor and student" by st. germain, "grand abridgment" by fitzherbert, and "new natura brevium" by lombard. judicial procedure these changes in the judicial process were made by statute: the chancellor, treasurer, keeper of the king's privy seal, or two of them, with a bishop selected by them, and a temporal lord of the king's council selected by them, and the two chief justices of the king's bench shall constitute the court of the star chamber. it shall have the authority to call before it by writ or by privy seal anyone accused of "unlawful maintenances, giving of liveries, signs and tokens, and retainers by indentures, promises, oaths, writings, or otherwise embraceries of his subjects" and witnesses, and impose punishment as if convicted under due process of law. these laws shall now be enforced: if a town does not punish the murderer of a man murdered in the town, the town shall be punished. a town shall hold any man who wounds another in peril of death, until there is perfect knowledge whether the man hurt should live or die. upon viewing a dead body, the coroner should inquire of the killers, their abettors, and anyone present at the killing and certify these names. in addition, the murderer and accessories indicted shall be tried at the king's suit within a year of the murder, which trial will not be delayed until a private suit is taken. if acquitted at the king's suit, he shall go back to prison or let out with bail for the remainder of the year, in which time the slain man's wife or next of kin may sue. for every inquiry made upon viewing a slain body coroners shall be paid 13s.4d. out of the goods of the slayer or from a town not taking a murderer, but letting him escape. if the coroner does not make inquiry upon viewing a dead body, he shall be fined 100s. to the king. if a party fails to appear for trial after a justice has taken bail from him, a record of such shall be sent to the king. up to 1600, the star chamber heard many cases of forgery, perjury, riot, maintenance, fraud, libel, and conspiracy. it could mete out any punishment, except death or any dismemberment. this included life imprisonment, fines, pillory, whipping, branding, and mutilation. henry vii sat on it. if a justice of the peace does not act on any person's complaint, that person may take that complaint to another justice of the peace, and if there is no remedy then, he may take his complaint to a justice of assize, and if there is not remedy then, he may take his complaint to the king or the chancellor. there shall then be inquiry into why the other justices did not remedy the situation. if it is found that they were in default in executing the laws, they shall forfeit their commissions and be punished according to their demerits. justices of the peace shall make inquiry of all offenses in unlawful retaining, examine all suspects, and certify them to the king's bench for trial there or in the king's council, and the latter might also proceed against suspects on its own initiative on information given. perjury committed by unlawful maintenance, embracing, or corruption of officers, or in the chancery, or before the king's council, shall be punished in the discretion of the chancellor, treasurer, both the chief justices, and the clerk of the rolls. the star chamber, chancellor, king's bench and king and council have the power to examine all defendants, by oath or otherwise, to adjudge them convicted or attainted. they can also be found guilty by confession, examination, or otherwise. if a defendant denied doing the acts of which he is convicted, he was subject to an additional fine to the king and imprisonment. violations of statutes may be heard by the justices of assize or the justices of the peace, except treason, murder, and other felony. actions on the case shall be treated as expeditiously in the courts of the king's bench and common pleas as actions of trespass or debt. proclamation at four court terms of a levy of a fine shall be a final end to an issue of land, tenements, or other hereditaments and the decision shall bind persons and their heirs, whether they have knowledge or not of the decision, except for women-covert who were not parties, persons under the age of twenty-one, in prison, out of the nation, or not of whole mind, who are not parties. these may sue within five years of losing such condition. also, anyone not a party may claim a right, title, claim, or interest in the said lands, tenements, or other hereditaments at the time of such fine recorded, within five years after proclamations of the fine. a defendant who appeals a decision for the purpose of delaying execution of such shall pay costs and damages to the plaintiff for the delay. no sheriff, undersheriff, or county clerk shall enter any complaints in their books unless the complaining party is present. and no more complaints than the complaining party knows about shall be entered. the penalty is 40s. for each such false complaint, one half to the king and the other half to the suer after examination by a justice of the peace. this is to prevent extortion of defendants by false complaints. the justice shall certify this examination to the king, on pain of a fine of 40s. a bailiff of a hundred who does not do his duty to summon defendants shall pay a fine of 40s. for each such default, after examination by a justice of the peace. sheriffs' records of fines imposed and bailiffs' records of fines collected may be reviewed by a justice of the peace to examine for deceit. any sheriff allowing a prisoner to escape, whether from negligence or for a bribe, shall be fined, if the prisoner was indicted of high treason, at least 1,333s. for each escape. however, if the prisoner was in their keeping because of a suspicion of high treason, the fine shall be at least 800s.; and if indicted of murder or petite treason, at least 400s.; and if suspected of murder or petite treason, 200s.; and if suspected of other felonies, 100s. petite treason was that by a wife to her husband or a man to his lord. any person not responding to a summons for jury service shall be fined 12d. for the first default, and 2s. for the second, and double for each subsequent default. a pauper may sue in any court and be assigned a attorney at no cost to him. a justice of the peace to whom has been reported hunting by persons disguised with painted faces or visors or otherwise, may issue a warrant for the sheriff or other county officer to arrest such persons and bring them before the justice. such hunting in disguise or hunting at night or disobeying such warrant is a felony. this is to stop large mobs of disguised people from hunting together and then causing riots, robberies, and murders. benefit of clergy may be used only once, since this privilege has made clerics more bold in committing murder, rape, robbery, and theft. however, there will be no benefit of clergy in the case of murder of one's immediate lord, master, or sovereign. (this begins the gradual restriction of benefit of clergy until it disappears. also, benefit of clergy was often disregarded in unpeaceful times.) for an issue of riot or unlawful assembly, the sheriff shall call 24 jurors, each of lands and tenements at least 20s. of charter land or freehold or 26s.8d. of copyhold or of both. for each default of the sheriff, he shall pay 400s. and if the jury acquits, then the justice, sheriff, and under-sheriff shall certify the names of any jurors maintained or embraced and their misdemeanors, or forfeit 400s. any person proved to be a maintainer or embracer shall forfeit 400s. to the king and be committed to ward. the principal leaders of any riot or unlawful assembly shall be imprisoned and fined and be bound to the peace with sureties at a sum determined by the justices of the peace. if the riot is by forty people or heinous, the justices of peace shall certify such and send the record of conviction to the king. the king's steward, treasurer, and comptroller have authority to question by twelve discreet persons any servant of the king about making any confederacies, compassings, conspiracies, or imaginations with any other person to destroy or murder the king or one of his council or a lord. trial shall be by twelve men of the king's household and punishment as by felony in the common law. when a land holder enfeoffs his land and tenements to people unknown to the remainderman in tail, so that he does not know who to sue, he may sue the receiver of the profits of the land and tenements for a remedy. and the receivers shall have the same advantages and defenses as the feoffees or as if they were tenants. and if any deceased person had the use for himself and his heirs, then any of his heirs shall have the same advantages and defenses as if his ancestor had died seised of the land and tenements. and all recoveries shall be good against all receivers and their heirs, and the feofees and their heirs, and the cofeoffees of the receivers and their heirs, as though the receivers were tenants indeed, or feofees to their use, or their heirs of the freehold of the land and tenements. if a person feoffs his land to other persons while retaining the use thereof for himself, it shall be treated as if he were still seised of the land. thus, relief and heriot will still be paid for land in socage. and debts and executions of judgments may be had upon the land and tenements. the penalty for not paying customs is double the value of the goods. the town of london shall have jurisdiction over flooding and unlawful fishing nets in that part of the thames river that flows next to it. the city of london shall have jurisdiction to enforce free passage of boats on the thames river in the city, interruption of which carries a fine of 400s., two-thirds to the king and one third to the suer. jurors impaneled in london shall be of lands, tenements, or goods and chattels, to the value of 133s. and if the case concerns debt or damages at least 133s, the jurors shall have lands, tenements, goods, or chattels, to the value of 333s. this is to curtail the perjury that has gone on with jurors of little substance, discretion, and reputation. a party grieved by a false verdict of any court in london may appeal to the hustings court of london, which hears common pleas before the mayor and aldermen. each of the twelve alderman shall pick from his ward four jurors of the substance of at least 2,000s. to be impaneled. if twenty-four of them find that the jurors of the petty jury has given an untrue verdict, each such juror shall pay a fine of at least 400s. and imprisonment not more than six months without release on bail or surety. however, if it is found that the verdict was true, then the grand jury may inquire if any juror was bribed. if so, such juror bribed and the defendant who bribed him shall each pay ten times the amount of the bribe to the plaintiff and be imprisoned not more than six months without release on bail or surety. other changes in the judicial process were made by court decision. for instance, the royal justices decided that only the king could grant sanctuary for treason and not the church. after this, the church withdrew the right of sanctuary from second time offenders. the king's council has practically limited itself to cases in which the state has an interest, especially the maintenance of public order. chancery became an independent court rather than the arm of the king and his council. in chancery and the king's bench, the intellectual revival brought by humanism inspires novel procedures to be devised to meet current problems in disputed titles to land, inheritance, debt, breach of contract, promises to perform acts or services, deceit, nuisance, defamation, and the sale of goods. a new remedy is specific performance, that is, performance of an act rather than money damages. evidence is now taken from witnesses. various courts had overlapping jurisdiction. for instance, trespass could be brought in the court of common pleas because it was a civil action between two private persons. it could also be brought in the court of the king's bench because it broke the king's peace. it was advantageous for a party to sue for trespass in the king's court because there a defendant could be made to pay a fine to the king or be imprisoned, or declared outlaw if he did not appear at court. a wrongful step on the defendant's land, a wrongful touch to his person or chattels could be held to constitute sufficient force and an adequate breach of the king's peace to sustain a trespass action. a new form of action is trespass on the case, which did not require the element of force or of breach of the peace that the trespass offense requires. trespass on the case [or "case" for short] expands in usage to cover many types of situations. stemming from it is "assumpsit", which provided damages for breach of an oral agreement and a written agreement without a seal. parliament's supremacy over all regular courts of law was firmly established and it was called "the high court of parliament", paradoxically, since it came to rarely function as a law court. the humanist intellectual revival also caused the church courts to try to eliminate contradictions with state law, for instance in debt, restitution, illegitimacy, and the age of legal majority. the bishop's court in london had nine offenders a week by 1500. half of these cases were for adultery and sexual offenses, and the rest were for slander, blasphemy, missing church services, and breach of faith. punishment was penance by walking barefoot before the cross in the sunday procession dressed in a sheet and holding a candle. chapter 12 the times: 1509-1558 renaissance humanism came into being in the nation. in this development, scholars in london, oxford, and cambridge emphasized the value of classical learning, especially platonism and the study of greek literature as the means of better understanding and writing. they studied the original greek texts and became disillusioned with the filtered interpretations of the church, for example of the bible and aristotle. there had long been displeasure with the priests of the church. they were supposed to preach four times yearly, visit the sick, say the daily liturgies, and hear confessions at least yearly. but there were many lapses. many were not celibate, and some openly lived with a woman and had children. complaints about them included not residing within their parish community, doing other work such as raising crops, and taking too much in probate, mortuary fees, and marriage fees. probate fees had risen from at most 5s. to 60s. in the last hundred years. mortuary fees ranged from 1/3 to 1/9 of a deceased person's goods. sanctuary was abused. people objected to the right of arrest by ecclesiastical authorities. also, most parish priests did not have a theology degree or even a bachelor's degree, as did many laymen. in fact, many laymen were better educated than the parish priests. no one other than a laborer was illiterate in the towns. humanist grammar [secondary] schools were established in london by merchants and guilds. in 1510, the founder and dean of st. paul's school placed its management in the hands of london "citizens of established reputation" because he had lost confidence in the good faith of priests and noblemen. the sons of the nobility, attorneys, and merchants were starting to go to grammar school now instead of being taught at home by a tutor. at school, they mingled with sons of yeomen, farmers, and tradesmen, who were usually poor. the usual age of entry was six or seven. classical latin and greek were taught and the literature of the best classical authors was read. secondary education teachers were expected to know latin and have studied the ancient philosophers, history, and geography. the method of teaching was for the teacher to read textbooks to the class from a prepared curriculum. the students were taught in latin and expected not to speak english in school. they learned how to read and to write latin, to develop and amplify a theme by logical analysis, and to essay on the same subject in the narrative, persuasive, argumentative, commending, consoling, and inciting styles. they had horn books with the alphabet and perhaps a biblical verse on them. this was a piece of wood with a paper on it held down by a sheet of transparent horn. they also learned arithmetic (solving arithmetical problems and casting accounts). disobedience incurred flogging by teacher as well as by parents. spare the rod and spoil the child was the philosophy. schools now guarded the morals and behavior of students. there were two week vacations at christmas and at easter. royal grammar books for english and latin were proclaimed by henry in 1543 to be the only grammar book authorized for students. in 1545, he proclaimed a certain primer of prayers in english to be the only one to be used by students. the first school of humanist studies arose in oxford with the foundation of corpus christi college in 1516 by bishop richard fox. it had the first permanent reader or professor in greek. the professor of humanity was to extirpate all barbarisms by the study of cicero, sallust, valerius maximus, and quintilian. the third reader of theology was to read texts of the holy fathers but not those of their commentators. oxford university was granted a charter which put the greater part of the town under control of the chancellor and scholars. the mayor of oxford was required to take an oath at his election to maintain the privileges and customs of the university. roman law and other regius professorships were founded by the king at oxford and cambridge. teaching of undergraduates was the responsibility of the university rather than of the colleges, though some colleges had live-in teachers as students. most colleges were exclusively for graduate fellows, though this was beginning to change. the university took responsibility for the student's morals and behavior and tutors sometimes whipped the undergraduates. for young noblemen, a more important part of their education than going to university was travel on the continent with a tutor. this exposure to foreign fields was no longer readily available through war or pilgrimage. the purpose was practical to learn about foreign people and their languages, countries, and courts. knowledge of the terrain, resources, prosperity, and stability of their countries was particularly useful to a future diplomatic or political career. the physicians of london were incorporated to oversee and govern the practice of medicine. a faculty of physicians was established at oxford and cambridge. a royal college of physicians was founded in london in 1518 by the king's physician. the college of physicians taught more practical medicine and anatomy than the universities. only graduates of the college of physicians or of oxford or cambridge were allowed to practice medicine or surgery. medical texts were hippocrates and galen. these viewed disease as only part of the process of nature without anything divine. they stressed empiricism, experience, collections of facts, evidences of the senses, and avoidance of philosophical speculations. hippocrates had asserted that madness was simply a disease of the brain and then galen had agreed and advocated merciful treatment of the insane. galen's great remedies were proper diet, exercise, massage, and bathing. he taught the importance of a good water supply and good drainage. greek medicinal doctrines were assumed, such as that preservation of the health of the body was dependant on air, food, drink, movement and repose, sleeping and waking, excretion and retention, and the passions. it was widely known that sleep was restorative and that bad news or worry could spoil one's digestion. an italian book of 1507 showed that post-mortem examinations could show cause of death by gallstones, heart disease, thrombosis of the veins, or abscesses. in 1540 began the practice of giving bodies of hanged felons to surgeons to dissect. this was to deter the commission of felony. there was some feeling that dissection was a sacrilege, that the practice of medicine was a form of sorcery, and that illness and disease should be dealt with by prayer and/or atonement because caused by sin, the wrath of god, or by the devil. in 1543, flemish physician andreas vesalius, who had secretly dissected human corpses, published the first finely detailed description of human anatomy. in it, there was no missing rib on one side of man, and this challenged the theory of the woman eve having been made from a rib of the man adam. food that was digested was thought to turn into a vapor which passed along the veins and was concreted as blood, flesh, and fat. after 1546 there was a book listing hundreds of drugs and explaining how to prepare them, but their use was by trial and error. students were beginning to read for the bar by their own study of the newly available printed texts, treatises, and collections of statute law and of cases, instead of listening in court and talking with attorneys. in 1523, anthony fitzherbert wrote "boke of husbandry", which set forth the most current methods of arable farming, giving details of tools and equipment, advice on capital outlay, methods of manuring, draining, ploughing, and rick-building. it was used by many constantly, and was often carried around in the pocket. this began a new way to disseminate new methods in agriculture. he also wrote a "boke of surveying", which relied on the perch rod and compass dial, and gave instruction on how to set down the results of a survey. in 1533, gemma frisius laid down the principles of topographical survey by triangulation. this improved the quality of surveys and produced accurate plots. geoffrey chaucer's "canterbury tales" was a popular book. through chaucer, london english became a national standard and the notion of "correct pronunciation" came into being. the discoveries and adventures of amerigo vespucci, a portuguese explorer, were widely read. the north and south american continents were named for him. london merchant guilds began to be identified mainly with hospitality and benevolence instead of being trading organizations. twelve great companies dominated city politics and effectively chose the mayor and aldermen. they were, in order of precedence, mercers, grocers, drapers, fishmongers, goldsmiths, skinners, tailors, haberdashers, ironmongers, salters, vintners, and the clothworkers (composed from leading fullers and shearmen). the leading men of these guilds were generally aldermen and the guilds acted like municipal committees of trade and manufactures. then they superintended the trade and manufactures of london much like a government department. they were called livery companies and categorized their memberships in three grades: mere membership, livery membership, and placement on the governing body. livery members were distinguished by having the clothing of the brotherhood [its livery] and all privileges, and proprietary and municipal rights, in the fullest degree. they generally had a right to a place at the company banquets. they were invited by the governing body, as a matter of favor, to other entertainments. these liverymen were usually those who had bought membership and paid higher fees because they were richer. their pensions were larger than those of mere members. those with mere membership were freemen who had only the simple freedom of the trade. the masters were usually householders. the journeymen, yeomanry, bachelors were simple freemen. most of these companies had almshouses attached to their halls for the impoverished, disabled, and elderly members and their widows and children. for instance, many members of the goldsmiths had been blinded by the fire and smoke of quicksilver and some members had been rendered crazed and infirm by working in that trade. the freedom and rights of citizenship of the city could only be obtained through membership in a livery company. a lesser guild, the leathersellers, absorbed the glovers, pursers, and pouchmakers. these craftsmen then became wage earners of the leathersellers, but others of these craftsmen remained independent. before, the whittawyers, who treated horse, deer, and sheep hides with alum and oil, had become wage earners for the skinners. londoners went to the fields outside the city for recreation and games. when farmers enclosed some suburban common fields in 1514, a crowd of young men marched out to them and, crying "shovels and spades", uprooted the hedges and filled in the ditches, thus reclaiming the land for their traditional games. the last major riot in london was aroused by a speaker on may day in 1517 when a thousand disorderly young men, mostly apprentices, defied the curfew and looted shops and houses of aliens. a duke with two thousand soldiers put it down in mid-afternoon, after which the king executed fifteen of the rioters. many english migrated to london. there were ambitious young men and women hopeful of betterment through employment, apprenticeship, higher wages, or successful marriage. on the other hand, there were subsistence migrants forced to leave their homes for food, work, or somewhere to live. there was much social mobility. for instance, between 1551 and 1553, of 881 persons admitted as freemen of london, 46 were the sons of gentlemen, 136 the sons of yeomen, and 289 the sons of farm workers. london grew in population about twice as fast as the nation. the fortunes of landowners varied; some went into aristocratic debt by ostentatiously spending on building, clothes, food, and drink, and some became indebted by inefficient management. some had to sell their manors and dismiss their servants. there are 26 wards of london as of 1550. this is the number for the next four centuries. each ward has an alderman, a clerk, and a chief constable. there are also in each ward about 100 to 300 elected officials including prickers, benchers, blackbootmen, fewellers [keepers of greyhounds], scribes, a halter-cutter, introducers, upperspeakers, under speakers, butlers, porters, inquestmen, scavengers, constables, watchmen, a beadle, jurymen, and common councilmen. the wardmoot had inquest jurisdiction over immorality or bad behavior such as vagrancy, delinquency, illegitimacy, and disputes. this contributed greatly to social stability. in 1546, henry ordered the london brothels closed. a small gaol was established in the clink district of southwark, giving the name "clink" to any small gaol. london ordinances required journeymen to work from 6 am to 6 pm in winter, with a total of 90 minutes breaks for breakfast, dinner, and an afternoon drink, for 7d. in the summer they had to work for two hours longer for 8d. at its peak in the 1540s the court employed about 200 gentlemen, which was about half the peerage and one-fifth of the greater gentry. henry issued a proclamation ordering noblemen and gentlemen in london not employed by the court to return to their country homes to perform their service to the king. though there was much agreement on the faults of the church and the need to reform it, there were many disagreements on what philosophy of life should take the place of church teachings. the humanist thomas more was a university trained intellectual. his book "utopia", idealized an imaginary society living according to the principles of natural virtue. in it, everything is owned in common and there is no need for money. all believe that there is a god who created the world and all good things and who guides men, and that the soul is immortal. but otherwise people choose their religious beliefs and their priests. from this perspective, the practices of current christians, scholastic theologians, priests and monks, superstition, and ritual look absurd. he encouraged a religious revival. aristotle's position that virtuous men would rule best is successfully debated against plato's position that intellectuals and philosophers would be the ideal rulers. more believed the new humanistic studies should be brought to women as well as to men. he had tutors teach all his children latin, greek, logic, theology, philosophy, mathematics, and astronomy from an early age. his eldest daughter margaret became a recognized scholar and translated his treatise on the lord's prayer. other high class women became highly educated. they voiced their opinions on religious matters. in the 1530s, the duchess of suffolk spoke out for reform of the clergy and against images, relics, shrines, pilgrimmages, and services in latin. she and the countess of sussex supported ministers and established seminaries for the spread of the reformed faith. more pled for proportion between punishment and crime. he urged that theft no longer be punished by death because this only encouraged the thief to murder his victim to eliminate evidence of the theft. he opined that the purpose of punishment was to reform offenders. he advocated justice for the poor to the standard of justice received by the rich. erasmus, a former monk, visited the nation for a couple of years and argued that reason should prevail over religious belief. he wrote the book "in praise of folly", which noted man's elaborate pains in misdirected efforts to gain the wrong thing. for instance, it questioned what man would stick his head into the halter of marriage if he first weighed the inconveniences of that life? or what woman would ever embrace her husband if she foresaw or considered the dangers of childbirth and the drudgery of motherhood? childhood and senility are the most pleasant stages of life because ignorance is bliss. old age forgetfulness washes away the cares of the mind. a foolish and doting old man is freed from the miseries that torment the wise and has the chief joy of life: garrulousness. the seekers of wisdom are the farthest from happiness; they forget the human station to which they were born and use their arts as engines with which to attack nature. the least unhappy are those who approximate the naiveness of the beasts and who never attempt what is beyond men. as an example, is anyone happier than a moron or fool? their cheerful confusion of the mind frees the spirit from care and gives it many-sided delights. fools are free from the fear of death and from the pangs of conscience. they are not filled with vain worries and hopes. they are not troubled by the thousand cares to which this life is subject. they experience no shame, fear, ambition, envy, or love. in a world where men are mostly at odds, all agree in their attitude towards these innocents. they are sought after and sheltered; everyone permits them to do and say what they wish with impunity. however, the usual opinion is that nothing is more lamentable than madness. the christian religion has some kinship with folly, while it has none at all with wisdom. for proof of this, notice that children, old people, women, and fools take more delight than anyone else in holy and religious things, led no doubt solely by instinct. next, notice that the founders of religion have prized simplicity and have been the bitterest foes of learning. finally, no people act more foolishly than those who have been truly possessed with christian piety. they give away whatever is theirs; they overlook injuries, allow themselves to be cheated, make no distinction between friends and enemies, shun pleasure, and feast on hunger, vigils, tears, labors, and scorn. they disdain life, and utterly prefer death. in short, they have become altogether indifferent to ordinary interests, as if their souls lived elsewhere and not in their bodies. what is this, if not to be mad? the life of christians is run over with nonsense. they make elaborate funeral arrangements, with candles, mourners, singers, and pallbearers. they must think that their sight will be returned to them after they are dead, or that their corpses will fall ashamed at not being buried grandly. christian theologians, in order to prove a point, will pluck four or five words out from different places, even falsifying the sense of them if necessary, and disregard the fact that their context was relevant or even contradicted their points. they do this with such brazen skill that our attorneys are often jealous of them. attorney christopher st. german wrote the legal treatise "doctor and student", in which he deems the law of natural reason to be supreme and eternal. the law of god and the law of man, as enunciated by the church and royalty, merely supplement the law of natural reason and may change from time to time. examples of the law of reason are: it is good to be loved. evil is to be avoided. do onto others as you would have them do unto you. do nothing against the truth. live peacefully with others. justice is to be done to every man. no one is to wrong another. a trespasser should be punished. from these is deduced that a man should love his benefactor. it is lawful to put away force with force. it is lawful for every man to defend himself and his goods against an unlawful power. like his father, henry viii dominated parliament. he used this power to reform the church of england in the 1530's. the protestant reformation cause, started in germany in 1517 by martin luther posting his thesis, had become identified with henry's efforts to have his marriage of eighteen years to the virtuous catherine annulled so he could marry a much younger woman: anne. his purported reason was to have a son. the end of his six successive wives was: annuled, beheaded, died; annuled, beheaded, survived. henry viii was egotistical, arrogant, and selfindulgent. this nature allowed him to declare himself the head of the church of england instead of the pope. henry used and then discarded officers of state e.g. by executing them for supposed treason. one such was thomas wolsey, the son of a town grazier and butcher, who was another supporter of classical learning. he rose through the church, the gateway to advancement in a diversity of occupations of clergy such as secretary, librarian, teacher, attorney, doctor, author, civil servant, diplomat, and statesman. he was a court priest when he aligned himself with henry, both of whom wanted power and glory and dressed extravagantly. but he was brilliant and more of a strategist than henry. wolsey called himself a reformer and started a purge of criminals, vagrants and prostitutes within london, bringing many before the council. but most of his reforming plans were not brought to fruition, but ended after his campaign resulted in more power for himself. wolsey rose to be chancellor to the king and archbishop of york. as the representative of the pope for england, he exercised almost full papal authority there. but he controlled the church in england in the king's interest. he was second only to the king and he strengthened the crown by consolidating power and income that had been scattered among nobles and officeholders. he also came to control the many courts. wolsey centralized the church in england and dissolved the smaller monasteries, the proceeds of which he used to build colleges at oxford and his home town. he was an impartial and respected justice. when wolsey was not able to convince the pope to give henry an annulment of his marriage, henry dismissed him and took his property, shortly after which wolsey died. the king replaced wolsey as chancellor with thomas more, after whom he made thomas cromwell chancellor. cromwell, the son of a clothworker/blacksmith/brewer/innkeeper, was a self-taught attorney, arbitrator, merchant, and accountant. like wolsey, he was a natural orator. he drafted and had passed legislation that created a new church of england. he had all men swear an oath to the terms of the succession statute. thomas more was known for his honesty and was a highly respected man. more did not yield to henry's bullying for support for his statute declaring the succession to be vested in the children of his second marriage, and his statute declaring himself the supreme head of the church of england, instead of the pope. he did not expressly deny this supremacy statute, so was not guilty of treason under its terms. but silence did not save him. he was attainted for treason on specious grounds and beheaded. his conviction rested on the testimony of one perjured witness, who misquoted more as saying that parliament did not have the power to require assent to the supremacy statute because it was repugnant to the common law of christendom. henry ruled with an iron fist. in 1536, he issued a proclamation that "any rioters or those in an unlawful assembly shall return to their houses" or "we will proceed against them with all our royal force and destroy them and their wives and children." in 1538, he proclaimed that anyone hurting or maiming an officer while trying to make an arrest "shall lose and forfeit all their lands, goods, and chattel" and shall suffer perpetual imprisonment. moreover, if one murdered such an officer, he would suffer death without privilege of sanctuary or of clergy. in 1540, he proclaimed that there would be no shooting by handgun except on a shooting range. henry had parliament pass bills of attainder against many people. for the first time, harsh treatment of prisoners in the tower, such as placement in dungeons with little food, no bed, and no change of clothes, became almost a matter of policy. through his host of spies, cromwell heard what men said to their closest friends. words idly spoken were distorted into treasonable utterances. fear spread through the people. silence was a person's only possibility of safety. cromwell developed a technique for the management of the house of commons which lasted for generations. he promulgated books in defense of royal spiritual authority, which argued that canon law was not divine but merely human and that clerical authority had no foundation in the bible. a reformed english bible was put in all parish churches. reformers were licensed to preach. cromwell ordered sermons to be said which proclaimed the supremacy of the king. he instituted registers to record baptisms, marriages, and burials in every county, for the purpose of reducing disputes over descent and inheritance. he dissolved all the lesser monasteries. when cromwell procured a foreign wife for henry whom henry found unattractive, he was attainted and executed. henry now reconstructed his council to have a fixed membership, an official hierarchy based on rank, a secretariat, an official record, and formal powers to summon individuals before it by legal process. because it met in the king's privy lodgings, it was called the "privy council". it met daily instead of just during the terms of the westminster courts from late autumn to early summer. it communicated with the king through intermediaries, of whom the most important was the king's secretary. because it was a court council, part of it traveled with the king, while the other part conducted london business. when henry went to war in france, part of the council went with him, and part of it stayed to attend the queen regent. thomas cranmer, archbishop of canterbury, wrote the first english common book of prayer. with its use beginning in 1549, church services were to be held in english instead of latin. the celebration of the lord's supper was a communion among the parishoners and minister all sharing the wine and bread. it replaced the mass, in which the priests were thought to perform a miraculous change of the substance of bread and wine into the body and blood of christ, which the priest then offered as a sacrifice for remission of pain or guilt. this reflected the blood sacrifice of christ dying on the cross. in the mass, only the priests drank the wine. the mass, miracles, the worship of saints, prayers for souls in purgatory, and pilgrimages to shrines such as that of thomas becket, were all to be discontinued. imprisonment or exile rather than death was made the penalty for heresy and blasphemy, and also for adultery. after the king dissolved the greater monasteries, he took and sold their ornaments, silver plate and jewelry, lead from roofs of their buildings, and finally much of the land itself. three monasteries were converted into the first three treating hospitals in london, one for the diseased, one for the poor, and one, bethlehem (or "bedlam" for short), for the mentally ill. but there were still many poor, sick, blind, aged, and impotent people in the streets since the closure of the monasteries. in 1552, there were 2,100 people in need of relief, including 300 orphans, 600 sick or aged, 350 poor men overburdened with their children, 650 decayed householders, and 200 idle vagabonds. london then set up a poor relief scheme. the bridewell was established to set to work the idle in making feather bed ticks and wool-cards, drawing of wire, carding, knitting, and winding of silk. parishes were required to give money for the poor in 1563. other towns followed london's lead in levying a poor rate. henry used the proceeds from the sale of the monasteries for building many new palaces and wood ships for his navy. in war, these navy ships had heavy guns which could sink other ships. in peace time, these ships were hired out to traders. large ships were constructed in docks, made partly by digging and partly by building walls. in 1545, henry issued a proclamation ordering all vagabonds, ruffians, masterless men, and evil-disposed persons to serve him in his navy. the former land of the monasteries, about 30% of the country's land, was sold and resold, usually to great landowners, or leased. title deeds became important as attorneys sought the security that title could give. some land went to entrepreneurial cloth manufacturers, who converted the buildings for the manufacture of cloth. they bought the raw wool and hired craftsmen for every step of the manufacturing process to be done in one continuous process. this was faster than buying and selling the wool material between craftsmen who lived in different areas. also, it was more efficient because the amount of raw wool bought could be adjusted to the demand for cloth. many landowners now could live in towns exclusively off the rents of their rural land. rents were increased so much that tenants could not pay and were evicted. they usually became beggars or thieves. much of their former land was converted from crop raising to pasture for large herds of sheep. arable farming required many workers, whereas sheep farming required only one shepherd and herdsman. there were exceptional profits made from the export of wool cloth. but much raw wool was still exported. its price went up from 6s.8d. per tod [about 28 pounds] in 1340 to 20s.8d. in 1546. villeinage was now virtually extinct. a lord could usually claim a small money-rent from the freeholder, sometimes a relief when his land was sold or passed at death, and occasionally a heriot from his heir. there was steady inflation. landlords made their leases short term so that they could raise rents as prices rose. copyholders gradually acquired a valuable right in their holdings; their rent became light less that a shilling an acre. at least 85% of the population still lived in the country. rich traders built town or country houses in which the emphasis was on comfort and privacy. there was more furniture, bigger windows filled with glass, thick wallpaper, and formal gardens. use of thick, insulating wallpaper rose with the rise of paper mills. it was stenciled, hand-painted, or printed. some floors were tiled instead of stone or wood. they were still strewn with straw. the owners ate in a private dining room and slept in their own rooms with down quilts. their soap was white. they had clothing of white linen and white wool, leather slippers, and felt hats. men wore long tunics open at the neck and filled in with pleated linen and enormous puffed sleeves. henry made proclamations reminding people of the apparel laws, but they were difficult to enforce. henry also made a proclamation limiting the consumption of certain meat according to status. seven dishes were allowed to bishops, dukes, marquises, and earls; six to other temporal lords; five to justices, the king's council, sheriffs, and persons with an income of at least 200 pounds yearly or goods worth 2000 pounds; four to persons with an income of at least 100 pounds or goods worth 1000 pounds; and three dishes to persons with an income of at least 100 pounds or goods worth 500 pounds. there were limits on types of meat served, such as a maximum of one dish of great fowl such as crane, swan, and peacock; eight quail per dish; and twelve larks in a dish. people used tin or pewter dishes, platters, goblets, saucers, spoons, saltcellars, pots, and basins. they used soap to wash themselves, their clothes, and their dishes. a solid, waxy soap was from evaporating a mixture of goat fat, water, and ash high in potassium carbonate. they had bedcovers on their beds. cloth bore the mark of its weaver and came in many colors. cloth could be held together with pins that had a shank with a hook by which they were closed. people went to barbers to cut their hair and to extract teeth. they went to people experienced with herbs, roots, and waters for treatment of skin conditions such as sores, cuts, burns, swellings, irritated eyes or scaly faces. for more complicated ailments, they went to physicians, who prescribed potions and medicines. they bought potions and medicines from apothecaries and pharmacists. they burned wood logs in the fireplaces in their houses. so much wood was used that young trees were required by statute to be given enough lateral space to spread their limbs and were not cut down until mature. the king, earls, who ruled counties, and barons, who had land and a place in the house of lords, still lived in the most comfort. the king's house had courtyards, gardens, orchards, wood-yards, tennis courts, and bowling alleys. the walls of the towns were manned by the citizens themselves, with police and watchmen at their disposal. in inns, travelers slept ten to a bed and there were many fleas and an occasional rat or mouse running through the rushes strewn on the floor. the inn provided a bed and ale, but travelers brought their own food. each slept with his purse under his pillow. in markets, sellers set up booths for their wares. they sold grain for making oatmeal or for sowing one's own ground. wine, butter, cheese, fish, chicken, and candles could also be bought. butchers bought killed sheep, lambs, calves, and pigs to cut up for selling. tanned leather was sold to girdle-makers and shoemakers. goods bought in markets were presumed not to be stolen, so that a purchaser could not be dispossessed of goods bought unless he had knowledge that they were stolen. the ruling group of the towns came to be composed mostly of merchants, manufacturers, attorneys, and physicians. some townswomen were independent traders. the governed class contained small master craftsmen and journeyman artisans, small traders, and dependent servants. the major streets of london were paved with stone, with a channel in the middle. more water conduits from hills, heaths, and springs were built to provide the citizens of london with more water. the sewers carried only surface water away. households were forbidden to use the sewers. privies emptied into cesspools. the merchant adventurers' fellowship brought virtually all adventurers under its control and organized and regulated the national cloth trade. it had a general court of the adventurers sitting in the london mercers' hall. various companies were granted monopolies for trade in certain areas of the world such as turkey, spain, france, venice, the baltic, and africa. these were regulated companies. that is they obtained complete control of a particular foreign market, but any merchant who cared to join the company, pay its dues, and obey its regulations, might share in the benefits of its monopoly. the companies generally confined trade to men who were primarily merchants and not shopkeepers. in 1553 explorer sebastian cabot formed the muscovy company, which was granted a monopoly in its charter for trade with russia. it was oriented primarily to export english woolen cloth. it was the first company trading on a joint stock, which was arranged as a matter of convenience and safety. the risks were too great for any few individuals. it hired ships and assigned space to each member to ship his goods at his own risk. the dividend was return to the subscribers of the capital put in plus an appropriate share of any profits made on the voyage. i.e. the money was divided up. the members began leaving their money with the company for the next voyage. a general stock grew up. in 1568 were the first industrial companies: mines royal, and mineral and battery works. the cloth, mining, iron, and woodcraft industries employed full-time workers on wages. in the ironworks and foundries, the furnace blowing engines were worked by water wheels or by a gear attached to donkeys or horses. the forge hammers were worked at first by levers and later by water wheels. the day and night hammering filled the neighborhood with their noise. land held in common was partitioned. there were leases of mansion houses, smaller dwelling houses, houses with a wharf having a crane, houses with a timber yard, houses with a garden, houses with a shed, shops, warehouses, cellars, and stables. lands with a dye-house or a brew-house were devised by will along with their dying or brewing implements. there were dairies making butter and cheese. the knights had 70% of the land, the nobles 10%, the church 10%, and king 5%. citizens paid taxes to the king amounting to one tenth of their annual income from land or wages. merchants paid "forced loans" and benevolences. the national government was much centralized and had full-time workers on wages. a national commission of sewers continually surveyed walls, ditches, banks, gutters, sewers, ponds, bridges, rivers, streams, mills, locks, trenches, fishbreeding ponds, and flood gates. when low places were threatened with flooding, it hired laborers, bought timber, and hired carts with horses or oxen for necessary work. mayors of cities repaired water conduits and pipes under their cities' ground. the organ and the harp, precursor to the piano, were played. all people generally had enough food because of the commercialization of agriculture. even the standard meal of the peasant was bread, bacon, cheese, and beer or cidar, with beef about twice a week. also, roads were good enough for the transport of foodstuffs thereon. four-wheeled wagons for carrying people as well as goods. goods were also transported by the pulling of barges on the rivers from paths along the river. a plough with wheels was used as well as those without. the matchlock musket came into use, but did not replace the bow because its matchcord didn't remain lit in rainy weather. the matchlock was an improvement over the former musket because both hands could be used to hold and aim the matchlock musket because the powder was ignited by a device that touched a slow-burning cord to the powder when a trigger was pulled with one finger. after the break with rome, cooperation among villagers in church activities largely ceased. the altars and images previously taken care of by them disappeared and the paintings on the walls were covered with white or erased, and scripture texts put in their place. people now read the new bible, the "paraphrases" of erasmus, foxe's "book of martyrs", and the works of bishop jewel. the book of martyrs taught the duty and splendor of rising above all physical danger or suffering. the canon law of the church was abolished and its study prohibited. professorships of the civil law were founded at the two universities. the inns of court grew. attorneys had more work with the new laws passed to replace the church canons of the church. they played an important role in town government and many became wealthy. they acquired town houses in addition to their rural estates. church reforms included abolishing church sanctuaries. benefit of clergy was restricted. parsons were allowed to marry. archbishops were selected by the king without involvement by the pope. decisions by archbishops in testamentary, matrimonial, and marriage annulment matters were appealable to the court of chancery instead of to the pope. the clergy's canons were subject to the king's approval. the control of the church added to the powers of the crown to summon and dissolve parliament, coin money, create peers [members of the house of lords who received individual writs of summons to parliament], pardon criminals, order the arrest of dangerous persons without customary process of law in times of likely insurrection, tax and call men to arms without the consent of parliament if the country were threatened with invasion. about 1550 there began indictments and executions for witchcraftery which lasted for about a century. one of the reasons for suspecting a woman to be a witch was that she lived alone, which was very unusual. henry ordered all alien anabaptists, who denied the validity of infant baptism, to leave the realm. in switzerland, theophrastus paracelsus, an astrologer and alchemist who later became a physician, did not believe that humor imbalance caused disease nor in treatment by blood-letting or purging. he believed that there were external causes of disease, e.g. toxic matter in food, contagion, defective physical or mental constitution, cosmic influences differing with climate and country, or affliction sent providence. he urged that wounds be kept clean rather than given poultices. he started clinical diagnosis and treatment by highly specific medicines, instead of cure-alls. for instance, he used alkalies to treat disease, such as gout, indicated by certain substances in the urine, which also started urinalysis. he perceived that syphillis was caused by contagion and used mercury to cure it. he found curative powers also in opium, sulphur, iron, and arsenic. opium was made by drying and cooking the capsule of the poppy and was one of the few really effective early drugs. paracelsus urged alchemists to try to prepare drugs from minerals for the relief of suffering. he claimed to acquire knowledge of cures through spiritual contacts to occult wisdom. he believed that a human being has an invisible body as well as a visible one and that it is closely attuned to imagination and the spiritual aspect of an individual. he noticed that one's attitudes and emotions, such as anger, could affect one's health. he sometimes used suggestion and signs to help a patient form mental images, which translated into cures. he saw insanity as illness instead of possession by evil spirits. understanding of the celestial world began to change. contemporary thought was that the nature of all things was to remain at rest, so that movement and motion had to be explained by causes. the earth was stationary and the heavens were spherical and revolved around the earth every twenty-four hours. the universe was finite. the firmament extended outward in a series of rotating, crystalline, ethereal spheres to which were attached the various points of celestial geography. first came the circle of the moon. the sun orbited the earth. the fixed stars rotated on an outer firmament. finally, there was the abode of god and his heavenly hosts. different principles ruled the celestial world; it was orderly, stable, ageless, and enduring. but the world of man changed constantly due to its mixed four elements of air, earth, fire, and water each trying to disentangle itself from the others and seeking to find its natural location. the heavenly spheres could affect the destinies of men, such as through fate, fortune, intelligence, cherubim, seraphim, angels, and archangels. astrologers read the celestial signs and messages. then a seed of doubt was cast on this theory by nicholaus copernicus, a timid monk in poland, who found inconsistencies in ptolemy's work, but saw similarity in the movements of the earth and other planets. he inferred from planetary movements that their motion could be explained simply if they were revolving in circular paths around the sun, rather than around the earth. in his book of 1543, he also expressed his belief that the earth also revolved around the sun. this idea so shocked the world that the word "revolution" became associated with radical change. he regarded it as more likely that the earth rotated than that the stars moved with great speed in their large orbits. he proposed that the earth spins on its own axis about once every twenty-four hours, with a spin axis at about a 23 1/2 degree tilt from the orbital axis, thus explaining a slow change in the overall appearances of the fixed stars which had been observed since the time of ptolemy. he deduced from astronomical measurements that the correct order of the planets from the sun was: mercury, venus, earth, mars, jupiter, and saturn. the church considered his ideas heretical because contradictory to its dogma that man and the earth were the center of the universe. a central sun evoked images of pagan practices of sun worship. the law a person having land in socage or fee simple may will and devise his land by will or testament in writing. a person holding land by knight's service may will and devise by his last will and testament in writing part of his land to his wife and other parts of his land to his children, as long as 1/3 of entailed land is left to the king. anyone serving the king in war may alienate his lands for the performance of his will, and if he dies, his feoffees or executors shall have the wardship of his heir and land. a person who leases land for a term of years, even if by indenture or without a writing, may have a court remedy as do tenants of freehold for any expulsion by the lessor which is contrary to the lease, covenant, or agreement. these termers, their executors and assigns, shall hold and enjoy their terms against the lessors, their heirs and assigns. the lessor shall have a remedy for rents due or waste by a termer after recovering the land as well as if he had not recovered the land. a lord may distrain land within his fee for rents, customs, or services due without naming the tenant, because of the existence of secret feoffments and leases made by their tenants to unknown persons. anyone seised of land to the use or trust of other persons by reason of a will or conveyance shall be held to have lawful seisin and possession of the land, because by common law, land is not devisable by will or testament, yet land has been so conveyed, which has deprived married men of their courtesy, women of their dower, the king of the lands of persons attainted, the king of a year's profits from felons' lands, and lords of their escheats. (this was difficult to enforce.) a woman may not have both a jointure [promise of husband to wife of property or income for life after his death] and dower of her husband's land. (persons had purchased land to hold jointly with their wives) a sale of land must be in writing, sealed, and registered in its county with the clerk of that county. if the land is worth less than 40s. per year, the clerk is paid 12d. if the land exceeds 40s. yearly, the clerk is paid 2s.6d. an adult may lease his lands or tenements only by a writing under his seal for a term of years or a term of life, because many people who had taken leases of lands and tenements for a term of years or a term of lives had to spend a lot for repair and were then evicted by heirs of their lessors. a husband may not lease out his wife's land. no woman-covert, child, idiot, or person of insane memory may devise land by will or testament. the land of tenants-in-common may be partitioned by them so that each holds a certain part. no bishop or other official having authority to take probate of testaments may take a fee for probating a testament where the goods of the testator are under 100s., except that the scribe writing the probate of the testament may take 6d., and for the commission of administration of the goods of any man dying intestate, being up to 100s, may be charged 6d. where the goods are over 100s. but up to 800s. sterling, probate fees may be 3s.6d. at most, whereof the official may take 2s.6d. at most, with 12d. residue to the scribe for registering the testament. where the goods are over 800s. sterling, probate fees may be 5s. at most, whereof the official may take 2s.6d. at most, with 2s.6d. residue to the scribe, or the scribe may choose to take 1d. per 10 lines of writing of the testament. if the deceased had willed by his testament any land to be sold, the money thereof coming nor the profits of the land shall not be counted as the goods or chattel of the deceased. where probate fees have customarily been less, they shall remain the same. the official shall approve and seal the testament without delay and deliver it to the executors named in such testaments for the said sum. if a person dies intestate or executors refuse to prove the testament, then the official shall grant the administration of the goods to the widow of the deceased person, or to the next of kin, or to both, in the discretion of the official, taking surety of them for the true administration of the goods, chattels, and debts. where kin of unequal degree request the administration, it shall be given to the wife and, at his discretion, other requestors. the executors or administrators, along with at least two persons to whom the deceased was indebted, or to whom legacies were made, or, upon their refusal or absence, two honest kinsmen, shall make an inventory of the deceased's goods, chattels, ware, merchandise, as well moveable as not moveable, and take it upon their oaths to the official. no parish clergyman or other spiritual person shall take a mortuary fee or money from a deceased person with movable goods under the value of 133s., a deceased woman-covert, a child, a person keeping no house, or a traveler. only one mortuary fee may be taken of each deceased and that in the place where he most dwelled and lived. where the deceased's moveable goods are to the value of 133s. or more, above his debts paid, and under 600s., a mortuary up to 3s. 4d. may be taken. where such goods are 600s. or more and under 800s., mortuary up to 6s.8d. may be taken. where such goods are 800s. or above, mortuary up to 10s. may be taken. but where mortuaries have customarily been less, they shall remain the same. executors of a will declaring land to be sold for the payment of debts, performance of legacies to wife and children, and charitable deeds for the health of souls, may sell the land despite the refusal of other executors to agree to such sale. a man may not marry his mother, stepmother, sister, niece, aunt, or daughter. any clergy preaching contrary to the king's religious doctrine shall recant for the first offence. he shall abjure and bear a faggot (a badge resembling a faggot of wood which would have been used for burning him as a heretic) for the second offence. if he refuses to abjure or bear a faggot or offends a third time, he shall be burned and lose all his goods. if a layperson teaches, defends, or maintains a religious doctrine other than the king's, he shall recant and be imprisoned for twenty days for the first offence. he shall abjure and bear a faggot if he does not recant or offends a second time. he shall forfeit his goods and suffer perpetual imprisonment if he does not abjure or bear a faggot or offends a third time. the entry of an apprentice into a craft shall not cost more than 2s.6d. after his term, his entry shall not be more than 3s.4d. this replaced the various fees ranging from this to 40s. no master of a craft may require his apprentice to make an oath not to compete with him by setting up a shop after the term of his apprenticeship. no alien may take up a craft or occupation in the nation. no brewer of ale or beer to sell shall make wood vessels or barrels, and coopers shall use only good and seasonable wood to make barrels and shall put their mark thereon. every ale or beer barrel shall contain 32 of the king's standard gallons. the price of beer barrels sold to ale or beer brewers or others shall be 9d. an ale-brewer may employ in his service one cooper only to bind, hoop and pin, but not to make, his master's ale vessels. no butcher may keep a tanning-house. tanned leather shall be sold only in open fairs and markets and after it is inspected and sealed. only people living in designated towns may make cloth to sell, to prevent the ruin of these towns by people taking up both agriculture and cloth-making outside these towns. no one making cloth for sale may have more than one woolen loom or forfeit 20s. this to protect the weavers' ability to maintain themselves and their families from rich clothiers who keep many looms and employ journeymen and unskillful persons at low wages. no one owning a fulling mill may own a weaving loom. no weaver may own a fulling mill. no one shall shoot in or keep in his house any hand-gun or crossbow unless he has 2,000s. yearly. no one may hunt or kill hare in the snow since their killing in great numbers by men other than the king and noblemen has depleted them. no one shall take an egg or bird of any falcon or hawk out of its nest on the king's land. no one may disguise himself with hidden or painted face to enter a forest or park enclosed with a wall for keeping deer to steal any deer or hare. ducks and geese shall not be taken with any net or device during the summer, when they haven't enough feathers to fly. but a freeholder of 40s. yearly may hunt and take such with long bow and spaniels. no one may sell or buy any pheasant except the king's officers may buy such for the king. no butcher may kill any calf born in the spring. no grain, beef, mutton, veal, or pork may be sold outside the nation. every person with 36 acres of agricultural land, shall sow one quarter acre with flax or hemp-feed. all persons shall kill crows on their land to prevent them from eating so much grain at sowing and ripening time and destroying hay stacks and the thatched roofs of houses and barns. they shall assemble yearly to survey all the land to decide how best to destroy all the young breed of crows for that year. every village and town with at least ten households shall put up and maintain crow nets for the destruction of crows. no land used for raising crops may be converted to pasture. no woods may be converted to agriculture or pasture. the efforts to enforce these proved these prohibitions were not successful. no one shall cut down or break up dikes holding salt water and fresh water from flooding houses and pastures. no one shall dump tin-mining debris, dung, or rubbish into rivers flowing into ports or take any wood from the walls of the port, so that ships may always enter at low tide. a person may lay out a new highway on his land where the old one has been so damaged by waterways that horses with carriages cannot pass, with the consent of local officials. only poor, aged, and disabled persons may beg. begging without a license is punishable by whipping or setting in the stocks 3 days with only bread and water. alien palm readers shall no longer be allowed into the nation, because they have been committing felonies and robberies. butchers may not sell beef, pork, mutton, or veal from carcasses for more than 1/2 penny and 1/2 farthing [1/4 penny] per pound. french wines may not sell at retail for more than 8d. per gallon. a barrel maker or cooper may sell a beer barrel for 10d. no longer may aliens bring books into the nation to sell because now there are sufficient printers and book-binders in the nation. no one may buy fresh fish other than sturgeon, porpoise, or seal from an alien to put to sale in the nation. every person with an enclosed park where there are deer, shall keep two tall and strong mares in such park and shall not allow them to be mounted by any short horse, because the breeding of good, swift, and strong horses has diminished. a man may have only as many trotting horses for the saddle as are appropriate to his degree. no one may maintain for a living a house for unlawful games such as bowling, tennis, dice, or cards. no artificer, craftsman, husbandman, apprentice, laborer, journeyman, mariner, fisherman may play these games except at christmas under his master's supervision. noblemen and others with a yearly income of at least 2,000s. may allow his servants to play these games at his house. hemp of flax may not be watered in any river or stream where animals are watered. no one shall sell merchandise to another and then buy back the same merchandise within three months at a lower price. no one shall sell merchandise to be paid for in a year above the sum of 200s. per 2000s. worth of merchandise. no one shall sell or mortgage any land upon condition of payment of a sum of money before a certain date above the sum of 200s. per 2000s. per year. no one shall commit forgery by counterfeiting a letter made in another person's name to steal any money, goods, or jewels. no one shall libel by accusing another of treason in writing and leaving it in an open place without subscribing his own name to it. if any servant converts to his own use more than 40s. worth of jewels, money, or goods from caskets entrusted to him for safekeeping by a nobleman or other master or mistress, it shall be a felony. if a person breaks into a dwelling house by night to commit burglary or murder, is killed by anyone in that house, or a person is killed in self-defense, the killer shall not forfeit any lands or goods for the killing. killing by poisoning shall be deemed murder and is punishable by death. a person who has committed a murder, robbery, or other felony he has committed shall be imprisoned for his natural life and be burned on the hand, because those who have been exiled have disclosed their knowledge of the commodities and secrets of this nation and gathered together to practice archery for the benefit of the foreign realm. if he escapes such imprisonment, he shall forfeit his life. a person convicted or outlawed shall be penalized by loss of life, but not loss of lands or goods, which shall go to his wife as dower and his heirs. buggery may not be committed on any person or beast. no one shall slander or libel the king by speeches or writing or printing or painting. no one shall steal fish from a pond on another's land by using nets or hooks with bait or by drying up the pond. the mayor of london shall appoint householders to supervise watermen rowing people across the thames river because so many people have been robbed and drowned by these rowers. all such boats must be at least 23 feet long and 5 feet wide. no man shall take away or marry any maiden under 16 years of age with an inheritance against the will of her father. any marriage solemnized in church and consummated shall be valid regardless of any prior agreement for marriage. sheriffs shall not lose their office because they have not collected enough money for the exchequer, but shall have allowances sufficient to perform their duties. butchers, brewers, and bakers shall not conspire together to sell their victuals only at certain prices. artificers, workmen and laborers shall not conspire to work only at a certain rate or only at certain hours of the day. no one shall sell any woolen cloth that shrinks when it is wet. only artificers using the cutting of leather, may buy and sell tanned leather and only for the purpose of converting it into made wares. a beggar's child above five years may be taken into service by anyone that will. cattle may be bought only in the open fair or market and only by a butcher or for a household, team, or dairy, but not for resale live. butter and cheese shall not be bought to be sold again except at retail in open shop, fair, or market. no man may enter a craft of cloth-making until he has been an apprentice for seven years or has married a clothiers' wife and practicing the trade for years with her and her servants sorting the wool. no country person shall sell wares such as linen drapery, wool drapery, hats, or groceries by retail in any incorporated town, but only in open fairs. for every 60 sheep there shall be kept one milk cow because of the scarcity of cattle. no clothier may keep more than one wool loom in his house, because many weavers do not have enough work to support their families. no weaver may have more than two wool looms. no cloth-maker, fuller, shearman, weaver, tailor, or shoemaker shall retain a journeyman to work by the piece for less than a three month period. every craftsman who has three apprentices shall have one journeyman. servants in agriculture and bargemen shall serve by the whole year and not by day wages. there shall be a sales tax of 12d. per pound of wool cloth goods for the crown. all people shall attend church on sundays to remember god's benefits and goodness to all and to give thanks for these with prayers and to pray to be given daily necessities. anyone fighting in church shall be excluded from the fellowship of the parish community. no one shall use a rope or device to stretch cloth for sale so to make it appear as more in quantity than it is. no one may sell cloth at retail unless the town where it was dressed, dyed, and pressed has placed its seal on the cloth. cloth may not be pressed with a hot press, but only with a cold press. offices may not be bought and sold, but only granted by justices of the royal courts. no one going from house to house to repair metal goods or sell small goods he is carrying may do this trade outside the town where he lives. no one may sell ale or beer without a license, because there have been too many disorders in common alehouses. offenders may be put in the town or county gaol for three days. only persons with yearly incomes of 1,333s. or owning goods worth 13,333s. may store wine in his house and only for the use of his household. no one may sell forged iron, calling it steel, because the edged tools and weapons made from it are useless. parish communities shall repair the highways for four days each year using oxen, cart, plough, shovels, and spades. the children of priests are declared legitimate so they may inherit their ancestor's lands. the priests may be tenants by courtesy after the death of their wives of such land and tenements that their wives happened to be seized of in fee simple or in fee tail, during the spousals. the king's proclamations shall be observed and kept as though they were acts of parliament. the penalty shall not be more than that stated in the proclamation, except for heresy. the year books ceased in 1535. judicial procedure by royal proclamation of 1546, only those admitted by the chancellor and two chief justices may practice as counsel or in legal pleading in any of the king's courts. also, such a person must be serjeant-at-law, reader, utter barrister, or an eight-year fellow of one of the four houses of court, except in the court of common pleas. doctors of the civil law may practice in the church or chancery courts. justices shall tax inhabitants of the county for building gaols throughout the nation, for imprisonment of felons, to be kept by the sheriffs and repaired out of the exchequer. piracy at sea or in river or creek or port are adjudicated in counties because of the difficulty of obtaining witnesses from the ship, who might be murdered or who are on other voyages on the sea, for adjudication by the admiral. piracy and murder on ships is punishable by death only after confession or proof by disinterested witnesses. land held by tenants in common may be partitioned by court order, because some of these tenants have cut down all the trees to take the wood and pulled down the houses to convert the material to their own use. persons worth 800s. a year in goods shall be admitted in trials of felons in corporate towns although they have no freehold of land. each justice of the high courts may employ one chaplain. the privy council took the authority of the star chamber court, which organized itself as a specialty court. also, a specific group of full-time councilors heard pleas of private suitors. the bishops, nobility, and justices of the peace were commanded to imprison clergy who taught papal authority. justices of the peace and sheriffs were to watch over the bishops. the justices of assize were to assess the effectiveness of the justices of the peace as well as enforce the treason statute on circuit. the criminal court went outside the common law to prosecute political enemies, e.g. by dispensing with a jury. since the nation was now peaceful, expediency was no longer needed, so judicial procedures again became lengthy and formal with records. the chancery court enforced the obligations known as trusts, in the name of equity and good conscience. it adopted every analogy that the common law presented. its procedure was to force the defendant to answer on oath the charges that were brought against him. all pleadings and usually testimony was put into writing. much evidence consisted of written affidavits. there was no jury. the chancery court did not record its decisions apparently because it did not see itself s bound by precedents. witnesses could be sworn in to state pertinent facts necessary for full understanding and adjudication of cases, because they are reliable now that there is no unlicensed livery and maintenance and because jurors no longer necessarily know all the relevant facts. when acting as the highest court, the house of lords was presided over by the chancellor, who sat on his prescribed place on the wool sacks. it had the following jurisdiction: trial of peers for high treason and serious felony, appeals on writs of error from courts of the common law, and impeachment. the house of lords served as judge of impeachment cases, whereas the house of commons served as fact finders. the leet court and sheriff's turn court have much less jurisdiction. they may dispose of presentments of trespasses and nuisances, but not felony or question of freehold. such presentments are made by a set of at least twelve men, and the presented person is amerced there and then. chapter 13 the times: 1558-1601 queen elizabeth i was intelligent, educated, and wise about human nature. when young, she was a brilliant student and studied the bible, and greek and roman history, philosophy, literature, and oratory. she wrote in english, latin, french, and italian. she read greek, including the greek testament, greek orators, and greek dramatists at age seven, when the first professorship of greek was founded at cambridge university. learning from books was one of her highest values throughout her life. she was so influenced by her reading of cicero that she acquired his style of writing. her chief secretary william cecil was so guided by cicero's "offices" that he carried a copy in his pocket. cicero opined that government officials' duty was to make the safety and interest of citizens its greatest aim and to design all their thoughts and endeavors without ever considering personal advantage. government was not to serve the interest of any one group to the prejudice or neglect of the rest, for then discord and sedition would occur. furthermore, a ruler should try to become loved and not feared, because men hated those whom they feared, and wished dead those whom they hated. therefore obedience proceeding from fear could not last, whereas that which was the effect of love would last forever. an oppressor ruling by terror will be resented by the citizens, who in secret will choose a worthier person. then liberty, having been chained up, would be unleashed more fiercely than otherwise. to obtain the peoples' love, a ruler should be kind and bountiful. to obtain the peoples' trust, a ruler should be just, wise, and faithful. to demonstrate this, a ruler should be eloquent in showing the people an understanding better than theirs, the wisdom to anticipate events, and the ability to deal with adverse events. and this demonstration should be done with modesty. one cannot get the peoples' trust by vain shows, hypocritical pretenses, composed countenances, and studied forms of words. the first goal of a ruler is to take care that each individual is secured in the quiet enjoyment of his own property. the second goal is to impose taxes that are not burdensome. the third goal is to furnish the people with necessaries. the law should be enforced keeping in mind that its fundamental purpose is to keep up agreement and union among citizens. elizabeth cared deeply for the welfare of all citizens of whatever class. she was sensitive to public opinion and was loved by her people. she respected truth and was sincere, avoiding guile or fraud. she claimed that she had never dishonored her tongue with a falsehood to anyone. she expected that any covert manipulations by monarchs would be found out and therefore would damage their credibility. "it becometh therefor all of our rank to deal sincerely; lest if we use it not, when we do it we be hardly believed." she was frugal and diplomatically avoided unnecessary wars, saying that her purse was the pockets of her people. england was a small protestant nation threatened by the larger catholic nations of france and spain. when elizabeth flirted and talked of marriage with foreign princes, they laid aside any thoughts of conquering england by war, hoping to obtain it my marriage. not only did she not seek to conquer other lands, but she turned down an invitation to rule the netherlands. her credit reputation was so good that she could always get loans at small rates of interest from other countries. tudor government was paternalistic, curtailing cutthroat competition, fixing prices and wages, and licensing production under grants of monopoly to achieve a stable and contented society and a fair living for all. elizabeth prayed for divine guidance as in this prayer: "almighty god and king of all kings, lord of heaven and earth, by whose leave earthly princes rule over mortals, when the most prudent of kings who administered a kingdom, solomon, frankly confessed that he was not capable enough unless thou broughtst him power and help, how much less am i, thy handmaid, in my unwarlike sex and feminine nature, adequate to administer these thy kingdoms of england and of ireland, and to govern an innumerable and warlike people, or able to bear the immense magnitude of such a burden, if thou, most merciful father didst not provide for me (undeserving of a kingdom) freely and against the opinion of many men. instruct me from heaven, and give help so that i reign by thy grace, without which even the wisest among the sons of men can think nothing rightly. send therefore, o inexhaustible fount of all wisdom, from thy holy heaven and the most high throne of thy majesty, thy wisdom to be ever with me, that it may keep watch with me in governing the commonwealth, and that it may take pains, that it may teach me, thy handmaid, and may train me that i may be able to distinguish between good and evil, equity and iniquity, so as rightly to judge thy people, justly to impose deserved punishments on those who do harm, mercifully to protect the innocent, freely to encourage those who are industrious and useful to the commonwealth. and besides, that i may know what is acceptable to thee alone, vouchsafe that i wish, dare, and can perform it without paying respect to any earthly persons or things. so that when thou thyself, the just judge, who askest many and great things from those to whom many and great things are entrusted, when thou requirest an exact accounting, charge me not with badly administering my commonwealth and kingdom. but if by human thoughtlessness or infirmity thy handmaid strays from the right in some thing, absolve me of it by thy mercy, most high king and most mild father, for the sake of thy son jesus christ; and at the same time grant that after this worldly kingdom has been exacted of me, i may enjoy with thee an eternity in thy heavenly and unending kingdom, through the same jesus christ, thy son and the assessor of thy kingdom, our lord and mediator. to whom with thee and with the holy spirit, one everlasting king, immortal, invisible, only-wise god, be all honor and glory forever and ever, amen. elizabeth promoted commercial speculations, which diffused a vast increase of wealth among her people. the elizabethan era was one of general prosperity. her good spirits and gayness created a happy mood in the nation. she loved dancing and madrigal music was popular. she came to dress elaborately and fancifully. her dresses were fitted not only at the waist, but along the torso by a long and pointed bodice stiffened with wood, steel, or whalebone. her skirt was held out with a petticoat with progressively larger hoops. there were two layers of skirt with the top one parted to show the bottom one. the materials used were silks, satins, velvets, and brocades. on her dress were quiltings, slashings, and embroidery. it was covered with gold ornaments, pearls, gems, and unusual stones from america. she wore decorated gloves. ladies copied her and discarded their simple over-tunics for elaborate dresses. the under-tunic was now becoming a petticoat and the over-tunic a dress. their under-tunics became petticoats. often they also wore a fan with a mirror, a ball of scent, a miniature portrait of someone dear to them, and sometimes a watch. single ladies did not wear hats, but had long, flowing hair and low cut dresses showing their bosoms. married ladies curled their hair and wore it in high masses on their heads with jewels interwoven into it. both gentlemen and ladies wore hats both indoors and outside and large, pleated collars around their necks (with the newly discovered starch), perfume, rings with stones or pearls, and high-heeled shoes. gentlemen's' tight sleeves, stiffened and fitted doublet with short skirt, and short cloak were ornamented and their silk or velvet hats flamboyant, with feathers. at their leather belts they hung pouches and perhaps a watch. they wore both rapiers [swords with cutting edges] and daggers daily as there were many quarrels. there were various artistic beard cuts and various lengths of hair, which was often curled and worn in ringlets. barbers sought to give a man a haircut that would favor his appearance, for instance a long slender beard for a round face to make it seem narrower and a broad and large cut for a lean and straight face. men now wore stuffed breeches and stockings instead of long hosen. some wore a jewelled and embroidered codpiece between their legs to emphasize their virility. both gentlemen and ladies wore silk stockings and socks over them and then boots. coats dipped in boiled linseed oil with resin served as raincoats. both men and women wore velvet or wool full length nightgowns with long sleeves and fur lining and trimming to bed, which was the custom for the next 150 years. fashions changed every year due to the introduction of cheaper, lighter, and less durable cloths by immigrant craftsmen. when elizabeth became old, she had a wig made to match her youthful long red hair. other ladies then began wearing wigs. every few years, elizabeth issued a proclamation reminding people of the apparel laws and reiterating certain provisions which had been disregarded. for instance, only the royal family and dukes and marquises in mantles of the garter could wear the color purple. one had to be at least an earl to wear gold or silver or sable. only dukes, marquises, earls and their children, barons, and knights of the order could wear imported wool, velvet, crimson, scarlet, or blue, or certain furs. except that barons' sons, knights, or men that could dispend at least 200 pounds yearly could wear velvet in gowns or coats, embroidery, and furs of leopards. spurs, swords, rapiers, daggers, and woodknives were restricted to knights and barons' sons or higher. a man who could dispend at least 100 pounds per year could wear taffeta, satin, damask, or cloth made of camels' hair and silk, in his outer garments. one had to be the son and heir or the daughter of a knight or wife of said son or a man who could dispend 20 pounds yearly or had 200 pounds worth in goods to wear silk in one's hat, bonnet, nightcap, girdle, scabbard, or hose. yeomen, husbandmen, serving men, and craftsmen were very restricted in what they could wear. poor men wore skirted fustian tunics, loose breeches, and coarse stockings or canvas leggings. women spent much of their time doing needlework and embroidery. since so many of the women who spent their days spinning were single, unmarried women became known as "spinsters". children wore the same type of apparel as their elders. they were given milk at meals for good growth. it was recognized that sickness could be influenced by diet and herbs. sickness was still viewed as an imperfect balance of the four humors. there were many lifestyle possibilities in the nation: gentleman, that is one who owned land or was in a profession such as a attorney, physician, priest or who was a university graduate, government official, or a military officer; employment in agriculture, arts, sciences; employment in households and offices of noblemen and gentlemen; self-sufficient farmers with their own farm; fisherman or mariner on the sea or apprentice of such; employment by carriers of grain into cities, by market towns, or for digging, seeking, finding, getting, melting, fining, working, trying, making of any silver, tin, lead, iron, copper, stone, coal; glassmaker. typical wages in the country were: fieldworkers 2-3d. a day, ploughmen 1s. a week with board, shepherd 6d. a week and board, his boy 2 1/2 d., hedgers 6d. a day, threshers 3-7d. depending on the grain, thatching for five days 2d., master mason or carpenter or joiner 4d. a day and food or 8d. without food, a smith 2d. a day with food, a bricklayer 2 1/2 d. a day with food, a shoemaker 2d. a day with food. these people lived primarily on food from his own ground. there was typical work for each month of the year in the country: january ditching and hedging after the frost broke, february catch moles in the meadows, march protect the sheep from prowling dogs, april put up hop poles, sell bark to the tanner before the timber is felled, fell elm and ash for carts and ploughs, fell hazel for forks, fell sallow for rakes, fell horn for flails, may weed and hire children to pick up stones from the fallow land, june wash and shear the sheep, july hay harvest, august wheat harvest, september and october gather the fruit, sell the wool from the summer shearing, stack logs for winter, buy salt fish for lent in the town and lay it up to dry, november have the chimneys swept before winter, thresh grain in the barn, december grind tools, repair yokes, forks, and farm implements, cover strawberry and flower beds with straw to protect them from the cold, split kindling wood with beetle and wedge, tan their leather, make leather jugs, make baskets for catching fish, and carve wood spoons, plates, and bowls. there was a wave of building and renovation activity in town and country. housing is now, for the first time, purely for dwelling and not for defense. houses were designed symmetrically with decorative features instead of a haphazard addition of rooms. windows were large and put on the outer walls instead of just inside the courtyard. a scarcity of timber caused proportionally more stone to be used for dwelling houses and proportionately more brick to be used for royal palaces and mansions. the rest of the house was plaster painted white interspersed with vertical, horizontal, and sloping timber, usually oak, painted black. there were locks and bolts for protection from intruders. the hall was still the main room, and usually extended up to the roof. richly carved screens separated the hall from the kitchen. the floors were stone or wood, and sometimes tile. they were often covered with rushes or plaited rush mats, on which incomers could remove the mud from their boots. some private rooms may have carpets on the floor. walls were smoothly plastered or had carved wood paneling to control drafts. painted cloths replaced tapestries on walls. iron stands with candles were hung from the ceiling and used on tables. plastered ceilings and a lavish use of glass made rooms lighter and cozy. broad and gracious open stairways with carved wood banisters, which replaced the narrow winding stone steps of a circular stairwell. most houses had several ornamented brick chimneys and clear, but uneven, glass in the windows. there were fireplaces in living rooms, dining rooms, kitchen, and bedrooms, as well as in the hall and great chamber. parlors were used for eating and sitting only, but not for sleeping. closets were rooms off bedrooms in which one could read and write on a writing table, and store one's books, papers, maps, calendar, medals, collections, rarities, and oddities. sometimes there was a study room or breakfast room as well. a gentleman used his study not only to read and to write, but to hold collections of early chronicles, charters, deeds, copied manuscripts, and coins that reflected the budding interest in antiquarianism; and to study his family genealogy, for which he had hired someone to make an elaborate diagram. he was inclined to have a few classical, religious, medical, legal, and political books there. rooms were more spacious than before and contained oak furniture such as enclosed cupboards, cabinets, buffets from which food could be served, tables, chairs and benches with backs and cushions, sometimes with arms, lidded chests for storing clothes and linens, and occasionally chests of drawers or wardrobes, either hanging or with shelves, for clothes. chests of drawers developed from a drawer at the bottom of a wardrobe. carpeting covered tables, chests, and beds. family portraits decorated some walls, usually in the dining room. great houses had a wardrobe chamber with a fireplace in front of which the yeoman of the wardrobe and his assistants could repair clothes and hangings. separate bedchambers replaced bed-sitting rooms. bedrooms all led out of each other. the lady's chamber was next to her lord's chamber, and her ladies' chambers were close to her chamber. but curtains on the four poster beds with tops provided privacy and warmth. beds had elaborately carved bedsteads, sheets, and a feather cover as well as a feather mattress. often family members, servants, and friends shared the same bed for warmth or convenience. each bedroom typically had a cabinet with a mirror, e.g. of burnished metal or crystal, and comb on top. one brushed his teeth with tooth soap and a linen cloth, as physicians advised. each bedroom had a pitcher and water bowl, usually silver or pewter, for washing in the morning, and a chamber pot or a stool with a hole over a bucket for nighttime use, and also fragrant flowers to override the unpleasant odors. the chamber pots and buckets were emptied into cesspits. a large set of lodgings had attached to it latrines consisting of a small cell in which a seat with a hole was placed over a shaft which connected to a pit or a drain. the servants slept in turrets or attics. elizabeth had a room just for her bath. more than medieval castles and manor houses, mansions were designed with privacy in mind. breakfast was substantial, with meat, and usually eaten in one's bedroom. the great hall, often hung around with bows, pikes, swords, and guns, was not abandoned, but the family took meals there only on rare occasions. instead they withdrew to a parlor, for domestic use, or the great chamber, for entertaining. parlors were situated on the ground floor: the family lived and relaxed there, and had informal meals in a dining parlor. the formal or "state" rooms were on the first floor above the ground floor, usually comprising a great chamber, a withdrawing chamber, one or more bedchambers, and a long gallery. each room had carved chairs and cabinets. taking a meal in the great chamber involved the same ceremonial ritual as in the manorial great chamber dating from the 1400s. the table was covered with a linen cloth. some sat above the fancy silver salt cellar and pepper, and some sat below. grace was said before the meal. noon dinner and supper were served by sewer, carver, cupbearer, and assistants. the lady of the house sat in a chair at the upper end of the table and was served first. fine clear italian glass drinking vessels replaced even gold and silver goblets. they ate from silver dishes with silver spoons. some gentry used two-pronged forks. there was great plenty and variety of meats to all but the poorer classes: beef, mutton, veal, lamb, kid, pork, hare, capon, red deer, fish and wild fowl as well as the traditional venison and brawn [boar]. kitchen gardens and orchards supplied apricots, almonds, gooseberries, raspberries, melons, currants, oranges, and lemons as well as the traditional apples, pears, plums, mulberries, quinces, pomegranates, figs, cherries, walnuts, chestnuts, hazel nuts, filberts, almonds, strawberries, blackberries, dewberries, blueberries, and peaches. also grown were sweet potatoes, artichokes, cabbages, turnips, broad beans, peas, pumpkins, cucumbers, radishes, carrots, celery, parsnips, onions, garlic, leeks, endive, capers, spinach, sorrel, lettuce, parsley, mustard, cress, sage, tarragon, fennel, thyme, mint, savory, rhubarb, and medicinal herbs. the well-to-do started to grow apricots, peaches, and oranges under glass. sugar was used to make sweet dishes. toothpicks made of brass or silver or merely a stiff quill were used. after the meal, some men and women were invited for conversation in a withdrawing or drawing chamber. some might take a walk in the gardens. after the upper table was served, the food was sent to the great hall to the steward and high household officers at the high table and other servants: serving men and women, bakers, brewers, cooks, pot cleaners, laundresses, shepherds, hogherds, dairy maids, falconers, huntsmen, and stable men. what was left was given to the poor at the gates of the house. great chambers were used primarily for meals, but also for music; dancing; plays; masques; playing cards, dice, backgammon, or chess; and daily prayers if there was no chapel. the idea of a long gallery was copied from henry vii and was used for exercise, recreation such as music and dancing, and private conversations. without the necessity of fortifications, the estate of a noble or gentleman could spread out to include not only a garden for the kitchen, but extensive orchards and beautiful formal gardens of flowers and scrubs, sometimes with fountains and maybe a maze of hedges. trees were planted, pruned, and grafted onto each other. householders had the responsibility to teach their family and servants religion and morals, and often read from the bible to them. many thought that the writers of the bible wrote down the exact words of god, so the passages of the bible should be taken literally. a noble lord made written rules with penalties for his country household, which numbered about a hundred, including family, retainers, and servants. he enforced them by fines, flogging, and threats of dismissal. the lady of the house saw that the household, held together as an economic and social unit. the noble's family, retainers, guests, and the head servants, such as chaplain and children's tutor, and possibly a musician, dined together at one table. the family included step children and married sons and daughters with their spouses. young couples often lived with the parents of one of them. chandeliers of candles lit rooms. there were sandglass clocks. popular home activities included reading, conversation, gardening, and music-making. smoking tobacco from a clay pipe and taking snuff became popular with men. for amusement, one of the lord's household would take his place in managing the estate for twelve days. he was called the "lord of misrule", and mimicked his lord, and issued comic orders. clothes were washed in rivers and wells. at spring cleanings, windows were opened, every washable surface washed, and feather beds and pillows exposed to the sun. most dwellings were of brick and stone. only a few were of wood or mud and straw. the average house was now four rooms instead of three. yeomen might have six rooms. a weaver's house had a hall, two bedrooms, and a kitchen besides the shop. farmers might have two instead of one room. a joiner had a one-room house with a feather bed and bolster. even craftsmen, artificers and simple farmers slept on feather beds on bed frames with pillows, sheets, blankets, and coverlets. loom tapestry and painted cloth was hung to keep out the cold in their single story homes. they also had pewter spoons and plates, instead of just wood or earthenware ones. even the poorer class had glass drinking vessels, though of a coarse grade. the poor still used wooden plates and spoons. laborers had canvas sheets. richer farmers would build a chamber above the hall, replacing the open hearth with a fireplace and chimney at a wall. poorer people favored ground floor extensions, adding a kitchen or second bedchamber to their cottages. kitchens were often separate buildings to reduce the risk of fire. roasting was done on a spit and baking in irons boxes placed in the fire or in a brick oven at the side of the fireplace. sometimes dogs were used to turn a spit by continual running in a treadmill. some people lived in hovels due to the custom in many places that a person could live in a home he built on village waste land if he could build it in one night. yeomen farmers still worked from dawn to dusk. mixed farming began. in this, some of the arable land produced food for man and the rest produced food for sheep, cattle, pigs, and poultry. this was made possible by the introduction of clover, artificial grasses, and turnip and other root crops for the animals. since the sheep ate these crops in the field, they provided manure to maintain the fertility of the soil. this meant that many animals could be maintained throughout the winter instead of being slaughtered and salted. farmers' wives used looms as well as spinning wheels with foot treadles. since animals could now be kept through the winter, salted meat and salted fish were no longer the staple food of the poorer people during the winter. farm laborers ate soup, porridge, milk, cheese, bacon, and beer or mead (depending on the district), and dark barley or rye bread, which often served as his plate. gentlemen ate wheat bread. there was a scarcity of fruits and vegetables that adversely affected the health of the affluent as well as of the poor due to the overall decline in farming. during winter, there were many red noses and coughing. the value of grain and meat rose compared to wool. grain became six times its value in the previous reign. wool fell from 20s.8d. per tod to 16s. so sheep-farming, which had taken about 5% of the arable land, was supplanted somewhat by crop-raising and the rural population could be employed for agriculture. in some places, the threefold system of rotation was replaced by alternating land used for crops with that used for pasture. the necessity of manuring and the rotation of crops and grasses such as clover for enrichment of the soil were recognized. wheat, rye, barley, peas, and beans were raised. there was much appropriation of common land by individual owners by sale or force. many farms were enclosed by fences or hedges so that each holder could be independent of his neighbors. red and black currants, rhubarb, apricots, and oranges were now grown. these independent farmers could sell wool to clothiers, and butter, cheese, and meat to the towns. they also often did smithwork and ironwork, making nails, horseshoes, keys, locks, and agricultural implements to sell. a laborer could earn 6d. a day in winter and 7d. a day in summer. unfree villeinage ceased on the royal estates. but most land was still farmed in common and worked in strips without enclosure. elizabeth made several proclamations ordering the enclosure of certain enclosed land to be destroyed and the land returned to tillage. windmills now had vanes replacing manual labor to change the position of the sails when the wind direction changed. prosperous traders and farmers who owned their own land assumed local offices as established members of the community. the population of the nation was about five million. population expansion had allowed landlords to insist on shorter leases and higher rents, instead of having to choose between accepting a long lease and good rent or allowing their estates to pass out of cultivation. over 50% of the population were on the margin of subsistence. 90% of the population lived in the countryside and 5% in the london and 5% in the other towns. life expectancy was about 40 years of age. over 50% was under the age of 23, while only about 9% were over 60. fluctuations in rates of population growth were traceable back to bad harvests and to epidemics and the two were still closely related to each other: "first dirth and then plague". most of london was confined within the city wall. there were orchards and gardens both inside and outside the walls, and fields outside. flower gardens and nurseries came into existence. no part of the city was more than a ten minute walk to the fields. some wealthy merchants had four story mansions or country houses outside the city walls. the suburbs of the city of london grew in a long line along the river; on the west side were noblemen's houses on both sides of the strand. east of the tower was a seafaring and industrial population. goldsmiths' row was replete with four story houses. a few wealthy merchants became moneylenders for interest, despite the law against usury. the mayor of london was typically a rich merchant prince. each trade occupied its own section of the town and every shop had its own signboard, for instance, hat and cap sellers, cloth sellers, grocers, butchers, cooks, taverns, and book-sellers. many of the london wards were associated with a craft, such as candlewick ward, bread st. ward, vintry ward, and cordwainer ward. some wards were associated with their location in the city, such as bridge ward, tower ward, aldgate ward, queenhithe ward, and billingsgate ward. people lived at the back or on the second floor of their shops. in the back yard, they grew vegetables such as melons, carrots, turnips, cabbages, pumpkins, parsnips, and cucumbers; herbs; and kept a pig. the pigs could still wander through the streets. hyde park was the queen's hunting ground. london had a small zoo of ten animals, including a lion, tiger, lynx, and wolf. london was england's greatest manufacturing city. by 1600 the greatest trading companies in london ceased to be associated only with their traditional goods and were dominated by merchants whose main interest was in the cloth trade. ambitious merchants joined a livery company to become freemen of the city and for the status and social benefits of membership. the companies still made charitable endowments, had funeral feasts, cared for the welfare of guild members, and made lavish displays of pageantry. they were intimately involved with the government of the city. they supplied members for the court of aldermen, which relied on the companies to maintain the city's emergency grain stores, to assess and collect taxes, to provide loans to the crown, to control prices and markets, to provide armed men when trouble was expected, and to raise armies for the crown at times of rebellion, war, or visits from foreign monarchs. from about 1540 to 1700, there were 23% involved in cloth or clothing industries such as weavers, tailors, hosiers, haberdashers, and cappers. 9% were leatherworkers such as skinners; tanners; those in the heavy leather crafts such as shoemakers, saddlers, and cobblers; and those in the light leather crafts such as glovers and pursers. another 9% worked in metals, such as the armorers, smiths, cutlers, locksmiths, and coppersmiths. 8% worked in the building trades. the victualling trades, such as bakers, brewers, butchers, costermongers [sold fruit and vegetables from a cart or street stand], millers, fishmongers, oystermen, and tapsters [bartender], grew from 9% before 1600 to 16% by 1700. of london's workforce, 60% were involved in production; 13% were merchants before 1600; 7% were merchants by 1700; 7% were transport workers such as watermen, sailors, porters, coachmen, and shipwrights; and 5-9% were professionals and officials (this number declining). life in london was lived in the open air in the streets. the merchant transacted business agreements and the attorney saw his clients in the street or at certain pillars at st. paul's church, where there was a market for all kinds of goods and services, including gentlemen's valets, groceries, spirits, books, and loans, which continued even during the daily service. some gentlemen had offices distant from their dwelling houses such as attorneys, who had a good income from trade disputes and claims to land, which often changed hands. plays and recreation also occurred in the streets, such as performances by dancers, musicians, jugglers, clowns, tumblers, magicians, and men who swallowed fire. the churches were continuously open and used by trades and peddlers, including tailors and letter-writers. water carriers carried water in wood vessels on a shoulder from the thames river or its conduits to the inhabitants three gallons at a time. a gentleman concocted an engine to convey thames water by lead pipes up into men's houses in a certain section of the city. soldiers, adventurers, physicians, apprentices, prostitutes, and cooks were all distinguishable by their appearances. an ordinance required apprentices to wear long blue gowns and white breeches with stockings, with no ornamentation of silk, lace, gold or silver and no jewelry. they could wear a meat knife, but not a sword or dagger. apprentices lived with their masters and worked from 6 or 7 a.m. to 9 p.m. some people knitted wool caps as they walked to sell when finished. there were sections of town for booksellers, butchers, brewers, hosiers, shoemakers, curriers, cooks, poulters, bow makers, textwriters, pattenmakers, and horse and oxen sellers. large merchant companies had great halls for trade, such as the mercers, grocers, drapers, fishmongers, and goldsmiths. the other great guilds were the skinners, merchant tailers, haberdashers, salters, ironmongers, vintners, and clothworkers. smaller guilds were those of the bakers, weavers, fruiterers, dyers, thames watermen and lightermen, carpenters, joiners, turners, and parish clerks. the guilds insured quality by inspecting goods for a fee. about 1571, mercer and merchant adventurer thomas gresham established the royal exchange as a place for merchants and brokers to meet for business purposes. it became the center of london's business life. its great bell rang at midday and at 6 p.m. its courtyard was lined with shops that rented at 50s. yearly and became a popular social and recreational area. gresham formulated his law that when two kinds of money of equal denomination but unequal intrinsic value are in circulation at the same time, the one of greater value will tend to be hoarded or exported, i.e. bad money will drive good money out of circulation. the work-saving knitting frame was invented in 1589 by minister william lee; it knit crosswise loops using one continuous yarn and was operated by hand. the stocking knitters, who knitted by hand, put up a bitter struggle against its use and chased lee out of the country. but it did come into use. some frame-work stocking knitters paid frame rent for the use of their knitting frames. frame knitting became a scattered industry. by 1600 basement services were frequently found in town houses built on restricted sites in london. lastly, provision of water supplies and improved sanitary arrangements reflected concern with private and public health. there was virtually no drainage. in the case of town houses, some owners would go to considerable effort to solve drainage problems, often paying cash to the civic authorities, but sometimes performing some service for the town at court or at westminster, in return for unlimited water or some drainage. most affluent households, including the queen's moved from house to house, so their cesspits could be cleaned out and the vacated buildings aired after use. a few cesspits were made air tight. otherwise, there was extensive burning of incense. refuse was emptied out of front doors and shoveled into heaps on street corners. it was then dumped into the thames or along the highways leading out of town. people put on perfume to avoid the stench. by 1600, the first toilet and water closet, where water flushed away the waste, was built. this provided a clean toilet area all year round. but these toilets were not much used because of sewer smells coming from them. the sky above london was darkened somewhat by the burning of coal in houses. taverns served meals as well as ale. they were popular meeting places for both men and women of all backgrounds to met their friends. men went to taverns for camaraderie and to conduct business. women usually went to taverns with each other. two taverns in particular were popular with the intelligentsia. music was usually played in the background and games were sometimes played. beer made with hops and malt was introduced and soon there were beer drinking contests. drunkenness became a problem. at night, the gates of the city were closed and citizens were expected to hang out lanterns. the constable and his watchmen carried lanterns and patrolled the streets asking anyone they saw why they were out so late at night. crime was rampant in the streets and criminals were executed near to the crime scene. there were a few horse-drawn coaches with leather flaps or curtains in the unglazed windows to keep out the weather. the main thoroughfare in london was still the thames river. nobles, peers, and dignitaries living on the thames had their own boats and landings. also at the banks, merchants of all nations had landing places where ships unloaded, warehouses, and cellars for goods and merchandise. swans swam in the clear bright water. watermen rowed people across the thames for a fee. in southwark were theaters, outlaws, cutpurses, prostitutes, and prisons. in 1550 southwark became the 26th and last ward of the city. in the summer, people ate supper outside in public. as of old times, brokers approved by the mayor and aldermen made contracts with merchants concerning their wares. some contracts included holding wares as security. some craftsmen and manual workers extended this idea to used garments and household articles, which they took as pawns, or security for money loaned. this began pawn brokerage, which was lucrative. the problem was that many of the items pawned had been stolen. elizabeth had good judgment in selecting her ministers and advisors for her privy council, which was organized like henry viii's privy council. the queen's privy council of about twelve ministers handled foreign affairs, drafted official communiques, issued proclamations, supervised the county offices: the 1500 justices of the peace, chief constables, sheriffs, lord lieutenants, and the county militias. it fixed wages and prices in london, advised justices of the peace on wages elsewhere, and controlled exports of grain to keep prices down and supplies ample. it banned the eating of meat two days a week so that the fishing industry and port towns would prosper. when grain was scarce in 1596, elizabeth made a proclamation against those ingrossers, forestallers, and ingraters of grain who increased its price by spreading false rumors that it was scarce because much of it was being exported, which was forbidden. there were labor strikes in some towns for higher wages after periods of inflation. in 1591, london authorities rounded up the sturdy vagabonds and set them to work cleaning out the city ditches for 4d. per day. elizabeth did not allow any gentleman to live in london purely for pleasure, but sent those not employed by the court back to their country manors to take care of and feed the poor of their parishes. her proclamation stated that "sundry persons of ability that had intended to save their charges by living privately in london or towns corporate, thereby leaving their hospitality and the relief of their poor neighbors, are charged not to break up their households; and all others that have of late time broken up their households to return to their houses again without delay." she never issued a license for more than 100 retainers. she was partially successful in stopping justices of the peace and sheriffs from wearing the liveries of great men. she continued the policy of henry vii to replace the rule of force by the rule of law. service of the crown and influence at court became a better route to power and fortune than individual factions based on local power structures. at the lowest level, bribery became more effective than bullying. the qualities of the courtier, such as wit, and the lawyer became more fashionable than the qualities of the soldier. most of the men in elizabeth's court had attended a university, such as francis bacon, son of the lord keeper, who became a writer, attorney, member of the commons, and experimental philosopher, and walter ralegh, the sea-fighter and writer, who had a humble origin. many wives and daughters of privy councilors attended the queen in her privy chamber. most of the knights or gentlemen of the royal household were also members of parliament or justices of the peace for certain districts in the counties. instead of the office of chancellor, which was the highest legal office, elizabeth appointed a man of common birth to be lord keeper of the great seal; she never made a lord keeper a peer. elizabeth encouraged her lords to frankly make known their views to her, in public or in private, before she decided on a course of action. she had affectionate nicknames for her closest courtiers, and liked to make puns. the rooms of the queen were arranged as they had been under henry viii: the great hall was the main dining room where the servants ate and which elizabeth attended on high days and holidays; the great chamber was the main reception room, where her gentlemen and yeomen of the guard waited; the presence chamber was where she received important visitors; beyond lay her privy chamber and her bedchamber. she ate her meals in the privy chamber attended only by her ladies. she believed that a light supper was conducive to good health. the lord chamberlain attended the queen's person and managed her privy chamber and her well-born grooms and yeomen and ladies-in-waiting. the lord steward managed the domestic servants below the stairs, from the lord treasurer to the cooks and grooms of the stable. the court did not travel as much as in the past, but became associated with london. elizabeth took her entire court on summer visits to the country houses of leading nobility and gentry. courtiers adopted symbolic "devices" as statements of their reaction to life or events, e.g. a cupid firing arrows at a unicorn signified chastity under attack by sexual desire. they carried them enamelled on jewels, had them painted in the background of their portraits, and sometimes had them expressed on furniture, plate, buildings, or food. the authority of the queen was the authority of the state. elizabeth's experience led her to believe that it was most important for a monarch to have justice, temperance, magnanimity, and judgment. she claimed that she never set one person before another, but upon just cause, and had never preferred anyone to office for the preferrer's sake, but only when she believed the person worthy and fit for the office. she never blamed those who did their best and never discharged anyone form office except for cause. further, she had never been partial or prejudiced nor had listened to any person contrary to law to pervert her verdicts. she never credited a tale that was first told to her and never corrupted her judgment with a censure before she had heard the cause. she did not think that the glory of the title of monarch made all she did lawful. to her, clemency was as eminent in supreme authority as justice and severity. secular education and especially the profession of law was now the route for an able but poor person to rise to power, rather than as formerly through military service or through the church. the first stage of education was primary education, which was devoted to learning to read and write in english. this was carried out at endowed schools or at home by one's mother or a tutor. the children of the gentry were usually taught in their homes by private teachers of small classes. many of the poor became literate enough to read the bible and to write letters. however, most agricultural workers and laborers remained illiterate. they signed with an "x", which represented the christian cross and signified its solemnity. children of the poor were expected to work from the age of 6 or 7. the next stage of education was grammar [secondary] school or a private tutor. a student was taught rhetoric (e.g. poetry, history, precepts of rhetoric, and classical oratory), some logic, and latin and greek grammar. english grammar was learned through latin grammar and english style through translation from latin. as a result, they wrote english in a latin style. literary criticism was learned through rhetoric. there were disputations on philosophical questions such as how many angels could sit on a pin's point, and at some schools, orations. the students sat in groups around the hall for their lessons. the boys and some girls were also taught hawking, hunting and archery. there were no playgrounds. the grammar student and the undergraduate were tested for proficiency by written themes and oral disputations, both in latin. the middle classes from the squire to the petty tradesman were brought into contact with the works of the best greek and roman writers. the best schools and many others had the students read cicero, the "de officiis", the epistles and orations, and some of ovid, terence, sallust, virgil, some medieval latin works, the "distichs" of cato, and sometimes erasmus and sir thomas more. the students also had to repeat prayers, recite the lord's prayer and the ten commandments, and to memorize catechisms. because the students came from the various social classes such as gentlemen, parsons, yeomen, mercers, and masons, they learned to be on friendly and natural terms with other classes. a typical schoolday lasted from 7:00 am to 5:00 pm. there were so many grammar schools founded and financed by merchants and guilds such as the mercers and fishmongers that every incorporated town had at least one. grammar schools were headed by schoolmasters, who were licensed by the bishop and paid by the town. flogging with a birch rod was used for discipline. many grammar schools had preparatory classes called "petties" for boys and girls who could not read and write to learn to do so. the girls did not usually stay beyond the age of nine. this was done by a schoolmaster's assistant, a parish clerk, or some older boys. however, the grammar schools did not become the breeding grounds for humanist ideas because the sovereigns were faced with religious atomism and political unrest, so used the grammar schools to maintain public order and achieve political and religious conformity. some founders of grammar schools linked their schools with particular colleges in the universities following the example of winchester being associated with new college, oxford, and eton with king's college, cambridge. the new charter of westminster (1560) associated the school with christ church, oxford and trinity college, cambridge. the government of oxford university, which had been catholic, was taken from the resident teachers and put into the hands of the vice-chancellor, doctors, heads of colleges, and proctors. cambridge already had a strong reformed element from erasmus' influence. oxford university and cambridge university were incorporated to have a perpetual existence for the virtuous education of youth and maintenance of good literature. the chancellors, masters, and scholars had a common seal. oxford was authorized to and did acquire its own printing press. undergraduate students entered about age 16 and resided in rooms in colleges rather than in scattered lodgings. the graduate fellows of the college who were m.a.s of under three years standing had the responsibility, instead of the university, for teaching the undergraduates. this led many to regard their fellowship as a position for life rather than until they completed their post-graduate studies. but they were still required to resign on marrying or taking up an ecclesiastical benefice. the undergraduates were poor scholars or fee-paying members of the college. some of the fee-paying members or gentlemen-commoners or fellow-commoners were the sons of the nobility and gentry and even shared the fellows' table. the undergraduate students were required to have a particular tutors, who were responsible for their moral behavior as well as their academic studies. it was through the tutors that modern studies fit for the education of a renaissance gentleman became the norm. those students not seeking a degree could devise his own course of study with his tutor's permission. less than about 40% stayed long enough to get a degree. many students who were working on the seven year program for a master's degree went out of residence at college after the four year's "bachelor" course. students had text books to read rather than simply listening to a teacher read books to them. in addition to the lecturing of the m.a.s and the endowed university lectureships, the university held exercises every monday, wednesday, and friday in which the student was meant through disputation, to apply the formal precepts in logic and rhetoric to the practical business of public speaking and debate. final examinations were still by disputation. the students came to learn to read latin easily. students acted in latin plays. if a student went to a tavern, he could be flogged. for too elaborate clothing, he could be fined. fines for absence from class were imposed. however, from this time until 1945, a young man's university days were regarded as a period for the "sowing of wild oats". all students had to reside in a college or hall, subscribe to the 39 articles of the university, the queen's supremacy, and the prayer book. meals were taken together in the college halls. the universities were divided into three tables: a fellows' table of earls, barons, gentlemen, and doctors; a second table of masters of arts, bachelors, and eminent citizens, and a third table of people of low condition. professors, doctors, masters of arts and students were all distinguishable by their gowns. undergraduate education was considered to be for the purpose of good living as well as good learning. it was to affect the body, mind, manners, sentiment, and business, instead of just leading to becoming a better disputant. the emphasis on manners came mostly from an italian influence. the university curriculum included latin and greek languages and was for four years. the student spent at least one year on logic (syllogizing, induction, deduction, fallacies, and the application of logic to other studies), at least one year on rhetoric, and at least one year on philosophy. the latter included physics, metaphysics, history, law, moral and political philosophy, modern languages, and ethics (domestic principles of government, military history, diplomatic history, and public principles of government), and mathematics (arithmetic, geometry, algebra, music, optics, astronomy). the astronomy taught was that of ptolemy, whose view was that the celestial bodies revolved around a spherical earth, on which he had laid out lines of longitude and latitude. there were lectures on greek and latin literature, including aristotle, plato, and cicero. there were no courses on english history in the universities. about 1564, the curriculum was changed to two terms of grammar, four terms of rhetoric, five terms of dialectic (examining ideas and opinions logically, e.g. ascertaining truth by analyzing words in their context and equivocations), three terms of arithmetic, and two terms of music. there were now negative numbers, irrational numbers such as square roots, and imaginary numbers such as square roots of negative numbers. the circumference and area of a circle could be computed from its radius, and the pythagorean theorem related the three sides of a right triangle. also available were astrology, alchemy (making various substances such as acids and alcohols), cultivation of gardens, and breeding of stock, especially dogs and horses. astronomy, geometry, natural and moral philosophy, and metaphysics were necessary for a master's degree. the university libraries of theological manuscripts in latin were supplemented with many non-religious books. there were graduate studies in theology, medicine, music, and law, which was a merging of civil and canon law together with preparatory work for studying common law at the inns of court in london. in london, legal training was given at the four inns of court. students were called to dinner by a horn. only young gentry were admitted there. a year's residence there after university gave a gentleman's son enough law to decide disputes of tenants on family estates or to act as justice of the peace in his home county. a full legal education gave him the ability to handle all family legal matters, including property matters. many later became justices of the peace or members of parliament. students spent two years in the clerks' commons, and two in the masters' commons. besides reading textbooks in latin, the students observed at court and did work for practicing attorneys. after about four more years' apprenticeship, a student could be called to the outer barre. there was a real bar of iron or wood separating the justices from the attorneys and litigants. as "utter barrister" or attorney, he would swear to "do no falsehood in the court, increase no fees but be contented with the old fees accustomed, delay no man for lucre or malice, but use myself in the office of an attorney within the court according to my learning and discretion, so help me god, amen". students often also studied and attended lectures on astronomy, geography, history, mathematics, theology, music, navigation, foreign languages, and lectures on anatomy and medicine sponsored by the college of physicians. a tour of the continent became a part of every gentleman's education. after about eight years' experience, attorneys could become readers and benchers, the latter of whom made the rules. readers gave lectures. benchers, who were elected by other benchers, were entrusted with the government of their inn of court, and usually were king's counsel. five to ten years later, a few of these were picked by the queen for serjeant at law, and therefore eligible to plead at the bar of common pleas. justices were chosen from the serjeants at law. gresham left the royal exchange to the city and the mercer's company on condition that they use some of its profits to appoint and pay seven lecturers in law, rhetoric, divinity, music, physics, geometry, and astronomy to teach at his mansion, which was called gresham college. they were installed in 1598 according to his will. their lectures were free, open to all, and often in english. they embraced mathematics and new scientific ideas and emphasized their practical applications. a tradition of research and teaching was established in mathematics and astronomy. many people kept diaries. letter writing was frequent at court. all forms of english literature were now in print, except for plays. many ladies read aloud to each other in reading circles and to their households. some wrote poetry and did translations. correctness of spelling was beginning to be developed. printers tended to standardize it. there was much reading of romances, jest books, histories, plays, prayer collections, and encyclopedias, as well as the bible. in schools and gentry households, favorite reading was edmund spenser's "faerie queen" about moral virtues and the faults and errors which beset them, erasmus' new testament, "paraphrases", "colloquies", and "adages", sir thomas north's edition of plutarch's "lives of the noble grecians and romans", elyot's "the book named the governor", and hoby's translation of "the courtier". gentlemen read books on the ideals of gentlemanly conduct, such as "institucion of a gentleman" (1555), and laurence humphrey's "the nobles: or of nobilites". francis bacon's "essays or counsels civil and moral" were popular for their wisdom. in them he commented on many subjects from marriage to faction. he cautioned against unworthy authority, mass opinion, custom, and ostentation of apparent wisdom. he urged the use of words with their correct meaning. at a more popular level were caxton's "the golden legend", baldwin's "mirror for magistrates", foxe's "book of martyrs" about english protestant who suffered at the stake, sensational stories and pamphlets, printed sermons (including those of switzerland's calvin), chronicles, travel books, almanacs, herbals, and medical works. english fiction began and was read. there were some books for children. books were copyrighted, although non-gentlemen writers needed a patron. at the lowest level of literacy were ballads. next to sermons, the printing press was kept busiest with rhymed ballads about current events. printed broadsheets on political issues could be distributed quickly. in london, news was brought to the governor of the news staple, who classified it as authentic, apocryphal, barber's news, tailor's news, etc. and stamped it. books were also censored for matter against the state church. this was carried out through the stationers' company. this company was now, by charter, the official authority over the entire book trade, with almost sole rights of printing (e.g. excluding schools). it could burn other books and imprison their printers. there were language schools teaching french, italian, and spanish to the aspiring merchant and to gentlemen's sons and daughters. italian business techniques were set forth in textbooks for merchants, using italian terms of business: debit (debito), credit (credito), inventory (inventorio), journal (giornal), and cash (cassa). the arithmetic of accounting operations, including multiplication, was described in "an introduction for to lerne to reckonwith the penne or counters" in 1537. accounting advice was extended to farmers as well as merchants in the 1569 "the pathway to perfectness in the accomptes of debitor and creditor" by james peele, a salter of london. it repeated the age-old maxim: ...receive before you write, and write before you pay, so shall no part of your accompt in any wise decay. the 1589 "marchants avizo" by johne browne, merchant of bristol, gave information on foreign currencies and keeping of accounts, and included specimens of various business documents such as insurance policies, and bills of exchange. it also advised: take heed of using a false balance or measure...covet not over familiarity amongst men it maketh thee spend much loss of time. be not hasty in giving credit to every man, but take heed to a man that is full of words, that hath red eyes, that goeth much to law, and that is suspected to live unchaste ... when thou promiseth anything be not stuck to perform it, for he that giveth quickly giveth double ... fear god...know thy prince...love thy parents ...give reverence to thy betters ...be courteous and lowly to all men... be not wise in thine own conceit. the old prohibitions of the now declining canon law were still observed. that is one should not seek wealth for its own sake or beyond what was requisite for a livelihood in one's station, exploit a customer's difficulties to extract an extravagant price, charge excessive interest, or engross to "corner the market". the printing press had made possible the methodizing of knowledge and its dissemination to a lay public. knowledge associated with the various professions, occupations, and trades was no longer secret or guarded as a mystery, to be passed on only to a chosen few. the sharing of knowledge was to benefit the community at large. reading became an out-of-school activity, for instruction as well as for pleasure. in 1565, graphite was discovered in england, and gave rise to the pencil. surveying accuracy was improved with the new theodolite, which determined directions and measured angles and used a telescope that pivoted horizontally and vertically. scientists had the use of an air thermometer, in which a column of air in a glass tube sitting in a dish of water contracted or expanded with changes in the temperature, causing the water to move up or down the tube. william shakespeare, a glove-maker's son, wrote plays about historical events and plays which portrayed various human personalities and their interactions with each other. they were enjoyed by all classes of people. his histories were especially popular. the queen and various earls each employed players and actors, who went on tour as a troupe and performed on a round open-air stage, with people standing around to watch. in london, theaters such as the globe were built specifically for the performance of plays, which before had been performed at inns. the audience applauded and hissed. there were costumes, but no sets. ordinary admission was 2d. before being performed, a play had to be licensed by the master of the revels to make sure that there was nothing detrimental to the peace and public order. elizabeth issued a proclamation forbidding unlicensed interludes or plays, especially concerning religion or government policy on pain of imprisonment for at least fourteen days. the common people still went to morality plays, but also to plays in which historical personages were portrayed, such as richard ii, henry iv, and henry v. some plays were on contemporary issues. musicians played together as orchestras. music and singing was a popular pastime after supper; everyone was expected to participate. dancing was popular with all classes. gentlemen played cards, dice, chess, billiards, tennis, and fenced and had games on horseback. their deer-hunting diminished as forests were cut down for agriculture and the deer was viewed as an enemy eating crops. falconry diminished as hedges and enclosures displaced the broad expanses of land. country people enjoyed music, dancing, pantomime shows with masks of mythological or symbolic characters, riddles, wrestling, hurling, running, swimming, leap frog, blind man's buff, shovelboard played with the hands, and football between villages with the goal to get the ball into one's own village. football and shin-kicking matches often resulted in injuries. the bought ballads from traveling pedlars. early morning dew gathered in may and early june was thought to have special curative powers. there were many tales involving fairies, witches, devils, ghosts, evil spirits, angels, and monsters enjoyed by adults as well as children. many people still believed in charms, curses, divination, omens, fate, and advice from astrologers. the ghosts of the earth walked the earth, usually because of some foul play to be disclosed, wrong to be set right, to warn those dear to them of peril, or to watch over hidden treasure. fairies blessed homes, rewarded minor virtues, and punished mild wrongdoing. when fairies were unhappy, the weather was bad. there were parties for children. the merry guild-feast was no longer a feature of village life. there were fewer holydays and festivals. the most prosperous period of the laborer was closing. an agricultural laborer's yearly wage was about 154s., but his cost of living, which now included house rent, was about 160s. a year. in 1533, daily wages in the summer for an agricultural laborer were about 4d. and for an artisan 6d. in 1563 in the county of rutland, daily wages for laborers were 7d. in summer and 6d. in winter; and for artisans were 9d. in summer and 8d. in winter. unemployment was widespread. there were endowed hospitals in london for the sick and infirm. there were others for orphans, for derelict children, and for the destitute. they worked at jobs in the hospital according to their abilities. there was also a house of correction for discipline of the idle and vicious by productive work. elizabeth continued the practice of touching people to cure scrofula, although she could not bring herself to fully believe in the reality of such cures, contrary to her chaplain and her physician. in the towns, shop shutters were let down to form a counter. behide this the goods were made and/or stored. the towns held a market once a week. fairs occurred once or twice a year. at given times in the towns, everyone was to throw buckets of water onto the street to cleanse it. during epidemics in towns, there was quarantine of those affected to stay in their houses unless going out on business. their houses were marked and they had to carry a white rod when outside. the quarantine of a person lasted for forty days. the straw in his house was burned and his clothes treated. people who died had to be buried under six feet of ground. there was an outbreak of plague in london roughly every ten years. there was a pity for the distressed that resulted in towns voting money for a people of a village that had burned down or been decimated by the plague. communities were taxed for the upkeep and relief of the prisoners in the gaols in their communities. queen elizabeth was puzzling over the proper relationship between the crown and the church when richard hooker, a humble scholar, theologian, and clergyman, attempted to find a justification in reason for the establishment of the church of england as an official part of the governing apparatus of the nation. his thinking was a turning point from the medieval notion that god ordered society, including the designation of its monarch and its natural laws. the belief in a divine structure with a great chain of being, beginning with god and working down through the hierarchy of angels and saints to men, beasts, and vegetables, did foster order in society. hooker restated the concept of aristotle that the purpose of society is to enable men to live well. he wrote that although the monarch was head of state and head of religion, the highest authority in civil affairs was parliament, and in religion, the convocation. the monarch had to maintain divine law, but could not make it. from this came the idea that the state derives its authority from the will of the people and the consent of the governed. protestant women had more freedom in marriage and were allowed to participate in more church activities compared to catholic women, but they were not generally allowed to become pastors. due to sensitivities on the part of both catholics and protestants about a female being the head of the church, elizabeth was given the title of "supreme governor" of the church instead of "supreme head". elizabeth was not doctrinaire in religious matters, but pragmatic. she always looked for ways to accommodate all views on what religious aspects to adopt or decline. images, relics, pilgrimmages, and rosaries were discouraged. but the catholic practice of kneeling at prayer, and bowing and doffing caps at the name of jesus were retained. also retained was the place of the altar or communion table at the east end of churches, special communion wafers instead of common bread, and elaborate clergy vestments. the communion prayer contained words expressing both the catholic view that the wafer and wine contained the real presence of the body and blood of christ, and the protestant view that they were commemorative only. communion was celebrated only at easter and other great festivals. church services included a sermon and were in accordance with a reformed prayer book and in english, as was the bible. care was even taken not to use words that would offend the scots, lutherans, calvinists, or huguenots. people could hold what religious beliefs they would, even atheism, as long as they maintained an outward conformity. attendance at state church services on sunday mornings and evenings and holydays was enforced by a fine of 12d. imposed by the church wardens. babies were to be baptized before they were one month old or the parents would be punished. still, the new religion had to be protected. members of the house of commons, lawyers, schoolmasters were to take the oath of supremacy or be imprisoned and make a forfeiture; a second refusal brought death. when numerous anabaptists came from the continent to live in the port towns, the queen issued a proclamation ordering them to leave the realm because their pernicious opinions could corrupt the church. the new church still accepted the theory of the devil causing storms, but opposed ringing the holy church bells to attempt to drive him away. the sins of people were also thought to cause storms, and also plagues. in 1562, the church of england wrote down its christian protestant beliefs in thirty-nine articles of religion, which specifically excluded certain catholic beliefs. they were incorporated into statute in 1571 establishing them as the tenets of the official religion of england. the first eighteen endorsed the ideas of one god, christ as the son of god who was sacrificed for all the sins of men, the resurrection of christ from the dead and ascension into heaven, the holy ghost proceeding from the father and the son, the books of the bible, the original sin of adam and his offspring, justification of man by faith in christ rather than by good works, goods works as the inspired fruit and proof of faith in christ, christ in the flesh as like man except for the absence of sin, the chance for sinners who have been baptised to be forgiven if they truly repent and amend their lives, the predestination of some to be brought by christ to eternal salvation and their minds to be drawn up to high and heavenly things, and salvation only by the name of christ and not by a sect. other tenets described the proper functions of the church, distinguishing them from roman catholic practice. specifically, the church was not to expound one place of scripture so that it was inconsistent with another place of scripture. because man can err, the church was not to ordain or enforce anything to be believed for necessity of salvation. explicitly renounced were the romish doctrine concerning purgatory, pardons, worshipping, adoration of images or reliques, invocation of saints, and the use in church of any language, such as latin, not understood by the people. only the sacraments of baptism and the lord's supper were recognized. the lord's supper was to be a sign of the love that christians ought to have among themselves and a sacrament of redemption by christ's death. the wine in the cup of blessing as well as the bread of the lord's supper was to be taken by laypeople and to be a partaking of christ; there was no romish mass. excommunication was limited to those who openly denounced the church. anyone openly breaking the traditions or ceremonies of the church which were approved by common authority were to be rebuked. elizabeth told the bishops that she wished certain homilies to be read in church, which encouraged good works such as fasting, prayer, alms-giving, christian behavior, repentance, and against idolatry, gluttony, drunkenness, excess of apparel, idleness, and rebellion. these she considered more instructive and learned that ministers' sermons, which were often influenced by various gentlemen and were inconsistent with each other. consecration of bishops and ministers was regulated; and they were allowed to marry. the standard prayer was: "our father who art in heaven, hallowed be thy name. thy kingdom come. thy will be done, on earth as it is in heaven. give us this day our daily bread, and forgive us our offenses as we forgive those who have offended against us. and lead us not into temptation, but deliver us from evil. for thine is the kingdom, the power, and the glory forever and ever, amen." there was difficulty persuading educated and moral men to be church ministers, even though elizabeth expressed to the bishops her preference for ministers who were honest and wise instead of learned in religious matters. the bible was read at home and familiar to everyone. this led to the growth of the puritan movement. the puritans believed in the right of the individual christian to interpret the scriptures for himself by spiritual illumination. they opposed the mystical interpretation of the communion service. the puritans complained that the church exerted insufficient control over the morals of the congregation. their ideas of morality were very strict and even plays were thought to be immoral. the independent puritans were those protestants who had fled from mary's catholic reign to the continent, where they were persuaded to the ideas of john calvin of geneva. he stressed the old idea of predestination in the salvation of souls, which had in the past been accepted by nearly all english christian leaders, thinkers, and teachers, but not stressed. the act of conversion was a common experience among the early puritans. the concomitant hatred of past sins and love of god which was felt in thankfulness for mercy were proof of selection for salvation. the good works that followed were merely an obligation showing that one's faith was real, but not a way to salvation. but the puritans also accepted calvin's idea of independent church government. they therefore thought that ministers and lay elders of each parish should regulate religious affairs and that the bishops, who were "petty popes", should be reduced to an equality with the rest of the clergy, since they did not rule by divine right. the office of archbishop should be eliminated and the head of state should not necessarily be governor of the church. these ideas were widely disseminated in books and pamphletts. the puritans disrupted the established church's sunday services, tearing the surplice off the minister's back and the wafers and wine from the altar rail. the puritans arranged "lectures" on sunday afternoons and on weekdays. these were given gratuitously or funded by boroughs. they were strict about not working on the sabbath, which day they gave to spiritual exercises, meditations, and works of mercy. the only work allowed was preparing meals for themselves, caring for their animals, and milking the cows. they enforced a strict moral discipline on themselves. the puritan movement included william brewster, an assistant to a court official who was disciplined for delivering, upon pressure from the council, the queen's signed execution order for mary of scotland after the queen had told him to hold it until she directed otherwise. the puritans formed a party in the house of commons. the debased coinage was replaced by a recoinage of newly minted coins with a true silver weight. goldsmiths, who also worked silver, often acted as guardians of clients' wealth. they began to borrow at interest at one rate in order to lend out to traders at a higher rate. this began banking. patents were begun to encourage the new merchant lords to develop local manufactures or to expand import and export trade. patents were for a new manufacture or an improved older one and determined the wages of its trades. there was chartering of merchant companies and granting of exclusive rights to new industries as monopolies. some monopolies or licenses were patents or copyrights of inventors. others established trading companies for trade to certain foreign lands and supporting consular services. people holding monopolies were accountable to the government. there were monopolies on certain smoked fish, fish oil, seal oil, oil of blubber, vinegar, salt, currants, aniseed, juniper berry liquor, bottles, glasses, brushes, pots, bags, cloth, starch, steel, tin, iron, cards, horn, ox shinbones, ashes, shreds of gloves, earth coal, calamite stone, powder, saltpeter, lead manufacturing byproducts, and transportation of leather. for far-flung enterprises and those where special arrangements with foreign countries was required, there was sharing of stock of companies, usually by merchants of the same type of goods. in joint-stock companies each member took a certain number of shares and all the selling of the goods of each merchant was carried on by the officials of the company. the device of joint stock might take the form of a fully incorporated body or of a less formal and unincorporated syndicate. the greatest joint-stock company was east india company, chartered in 1600 to trade there in competition with the dutch east india company. it was given a fifteen year monopoly on trade east of the southern tip of africa. unlike the muscovy company, and merchants of the staple, individual members could not trade on their own account, but only through the corporate body on its voyages. it was regulated as to each particular voyage and helped with problems by the crown and privy council, for instance when further subscriptions were needed, or when carpenters were needed to be pressed into service for fitting out ships, or to deal with an unsuccessful captain. its charter retained many of the aspects of the medieval trade guild: power to purchase lands, to sue and be sued, to make bylaws, and to punish offenders against them by fine or imprisonment. admission was by purchase of a share in a voyage, redemption, presentation, patrimony (sons of members who were twenty-one), and apprenticeship. purchase of a share in a voyage was the most common method. a share for the first ship cost 100 pounds. when share purchase did not suffice, redemption for such cash payments as could be obtained was resorted to. occasionally presentation or a faculty "for the making of a freeman" was granted to some nobleman or powerful member. members' liability was limited to their individual subscriptions. each voyage had 1) a royal commission authorizing the company to undertake the expedition and vesting in its commanders powers for punishing offences during the voyage, and quenching any mutiny, quarrels, or dissension that might arise; 2) a code of instructions from the company to the admiral and to commanders of ships setting forth in great detail the scope and objects of the voyage together with minute regulations for its conduct and trade; 3) authorization for coinage of money or export of specie (gold or silver); and 4) letters missive from the sovereign to foreign rulers at whose ports the ships were to trade. the first voyage brought back spices that were sold at auction in london for ten times their price in the indies and brought to shareholders a profit equivalent to 9 1/2% yearly for the ten years when the going interest rate was 8% a year. town government was often controlled by a few merchant wholesalers. the entire trade of a town might be controlled by its drapers or by a company of the merchant adventurers of london. the charter of the latter as of 1564 allowed a common seal, perpetual existence, liberty to purchase lands, and liberty to exercise their government in any part of the nation. it was controlled by a group of rich londoners, no more than 50, who owned the bulk of the cloth exported. there were policies of insurance given by groups of people for losses of ships and their goods. marine insurance was regulated. new companies were incorporated for many trades. they were associations of employers rather than the old guilds which were associations of actual workers. the ostensible reason was the supervision of the quality of the wares produced in that trade. (shoemakers, haberdashers, saddlers, and curriers exercised close supervision over these wares.) they paid heavily for their patents or charters. there was no sharp line between craftsman and shopkeeper or between shopkeeper and wholesale merchant. in london, an enterprising citizen could pass freely from one occupation to another. borrowing money for a new enterprise was common. industrial suburbs grew up around london and some towns became known as specialists in certain industries. the building crafts in the towns often joined together into one company, e.g. wrights, carpenters, slaters, and sawyers, or joiners, turners, carvers, bricklayers, tilers, wallers, plasterers, and paviors. these companies included small contractors, independent masters, and journeymen. the master craftsman often was a tradesman as well, who supplied timber, bricks, or lime for the building being constructed. the company of painters was chartered with a provision prohibiting painting by persons not apprenticed for seven years. the prosperous merchants began to form a capitalistic class as capitalism grew. competition for renting farm land, previously unknown, caused these rents to rise. the price of wheat rose to an average of 14s. per quarter, thereby encouraging tillage once more. there was steady inflation. with enclosure of agricultural land there could be more innovation and more efficiency, e.g. the time for sowing could be chosen. it was easier to prevent over-grazing and half-starved animals as a result. the complications of the open system with its endless quarrels and lawsuits were avoided. now noblemen talked about manure and drainage, rotation of crops, clover, and turnips instead of hunting, horses, and dogs. the breed of horses and cattle was improved. there were specializations such as the hunting horse and the coach horse. by royal proclamation of 1562, there were requirements for the keeping of certain horses. for instance, everyone with lands of at least 1,000 pounds had to keep six horses or geldings able for demilances [rider bearing a light lance] and ten horses or geldings for light horsemen [rode to battle, but fought on foot]. one with under 100 pounds but over 100 marks yearly had to keep one gelding for a light horseman. dogs had been bred into various types of hounds for hunting, water and land spaniels for falconry, and other dogs as house dogs or toy dogs. there were no longer any wild boar or wild cattle. the turkey joined the cocks, hens, geese, ducks, pigeons, and peacocks in the farmyard. manure and dressings were used to fertilize the soil. hay became a major crop because it could be grown on grazing lands and required little care. there are new and bigger industries such as glassware, iron, brasswares, alum and coppers, gunpowder, paper, coal, and sugar. the coal trade was given a monopoly. coal was used for fuel as well as wood, which was becoming scarce. iron smelters increasingly used coal instead of charcoal, which was limited. iron was used for fire-backs, pots, and boilers. good quality steel was first produced in 1565 with the help of german craftsmen, and a slitting mill was opened in 1588. small metal goods, especially cutlery, was made, as well as nails, bolts, hinges, locks, ploughing and harrowing equipment, rakes, pitch forks, shovels, spades, and sickles. lead was used for windows and roofs. copper and brass were used to make pots and pans. pewter was used for plates, drinking vessels, and candlesticks. competition was the mainspring of trade and therefore of town life. the mode of travel of the gentry was riding horses, but most people traveled by walking. people carried passes for travel that certified they were of good conduct and not a vagrant or sturdy rogue. bands of roving vagabonds terrorized the countryside. after a land survey completed in 1579 there arose travel books with maps, itineraries, and mileage between towns in england and wales. also, the queen sent her official mail by four royal postal routes along high roads from london to various corners of the nation. horses are posted along the way for the mail-deliverer's use. however, private mail still goes by packman or common carrier. the nation's inland trade developed a lot. there were many more wayfaring traders operating from town inns. in 1564, the first canal was built with locks at exeter. more locks and canals facilitated river travel. at london bridge, water-wheels and pumps are installed. new sea navigation techniques improved voyages. seamen learned to fix their positions, using an astrolabe or quadrant to take the altitude of the sun and stars and to reckon by the north star. they used a nocturnal, read by touch, to help keep time at night by taking the altitude of the stars. they calculated tides. to measure distances, they invented the traverse board, which was bored with holes upon lines, showing the points of the compass; by means of pegs, the steersman kept an account of the course steered. a log tied to a rope with knots at equal intervals was used to measure speed. there were compasses with a bearing dial on a circular plate with degrees up to 360 noted thereon. seamen had access to compilations of arab mathematicians and astronomers and to navigational manuals and technical works on the science of navigation and the instruments necessary for precision sailing. for merchants there were maps, books about maps, cosmographical surveys, and books on the newly-discovered lands. in 1569 john mercator produced a map taking into account the converging of the meridians towards the pole. on this chart, a straight line course would correspond to a mariner's actual course through the water on the earth's sphere, instead of having the inaccuracies of a straight line on a map which suggested that the world was flat. it was in use by 1600. christmas was an especially festive time of good fellowship. people greeted each other with "good cheer", "god be with you", or "against the new year". carols were often sung and musicians played many tunes. there was dancing and gambling. there were big dinners with many kinds of meat and drink. a hearty fire heated all the house. many alms were given to beggars. parliament enacted laws and voted taxes. the queen, house of lords, and house of commons cooperated together. there was relatively little dissension or debating. bills were read, voted on, discussed, and passed with the lords, peers, bishops, and justices sitting in their places according to their degree. the justices sat on the wool sacks. a bar separated this area from the rest of the room, where the members of the commons stood. there were many bills concerning personal, local, or sectional interests, but priority consideration was given to public measures. the house of lords still had 55 members. the queen appointed and paid the speaker, clerk, and sergeant at arms of the commons. the knights in the commons were almost invariably from the county's leading families and chosen by consensus of knights with free land of at least 40s. in the county court. in the towns, the electors might be the town corporation, holders of certain properties, all the freemen, all the ratepayers, or all the male inhabitants. disputed elections were not usually concerned with political issues, but were rivalries for power. the commons gradually won for its members freedom from arrest without its permission and the right of punishing and expelling members for crimes committed. tax on land remained at 10% of its estimated yearly income. the queen deferred to the church convocation to define christian faith and religion, thus separating church and state functions. the treasury sought to keep a balanced budget by selling royal land and keeping crown expenditures down. the crown carried a slight debt incurred before the queen's accession. theft and robbery were so usual that there were names for various techniques used. a ruffler went with a weapon to seek service, saying that he was a servitor in the wars, but his chief "trade" was to rob poor wayfaring men and market women. a prigman went with a stick in his hand like an idle person, but stole clothes off hedges. a whipjack begged like a mariner, but with a counterfeit license (called a "gibe"); he mostly robbed booths in fairs or pilfered ware from stalls, which was called "heaving of the booth". a frater had a counterfeit license to beg for some hospital, but preyed upon poor women coming and going to market. a quire bird was a person recently let out of prison, and was commonly a horse stealer. an upright man carried a truncheon of a staff and called others to account to him and give him a share or "snap" of all that they had gained in one month, and he often beat them. he took the chief place at any market walk and other assemblies. workers at inns often teamed up with robbers, telling them of wares or money travelers were carrying so the robber could profitably rob them after they left the inn. violence was still a part of the texture of everyday life. private armories and armed gangs were not uncommon. agricultural laborers kept sword and bow in a corner of their fields in the first part of elizabeth's reign. non-political brutal crime and homicides were commonplace. there were frequent local riots and disturbances, in the country and in the towns. occasionally there were large-scale rebellions. but the rebellion of the earl of essex in 1601 had no aftermath in violence. in 1590, the queen issued a proclamation enforcing curfew for london apprentices, who had been misruly. the queen issued proclamations to certain counties to place vagrant soldiers or vagrants under martial law because of numerous robberies. she ordered the deportation of vagrant irishmen in 1594. after exhausting every other alternative, the queen reluctantly agreed with her privy council on the execution in 1572 of mary, queen of scots, who had been involved in a plot to assassinate her and claim the throne of england. her council had persuaded her that it was impossible for her to live in safety otherwise. francis drake sailed around the world from 1577 to 1580. walter ralegh made an expedition to north america in 1584 with the queen's authority to "discover barbarous countries, not actually possessed of any christian prince and inhabited by christian people, to occupy and enjoy". he found and named the land of virginia in honor of the queen, who was a virgin, and started a colony on roanoke island there. drake and ralegh plundered spanish ships for cargo such as american gold and silver, much of which was used to pay for the war with spain and much going to investors. there experience fighting spanish ships led to improvements in ship design; building ships was no longer merely by copying another ship or a small model. in 1588, the spanish armada came to invade england, and was for the most part destroyed. in that battle, drake and other experienced seafighters led two hundred english ships, of which about 20 were built to sink other ships rather than to board and capture them. these new english ships were longer and narrower and did away with the towering superstructures at bow and stern. this made them more maneuverable and easier to sail. also, the english guns were lighter, more numerous, and outranged the spanish guns. so the smaller english ships were able to get close enough to fire broadside after broadside against the big spanish troop-transport galleons, without being fired upon. the direction of the wind forced the spanish galleons northward, where most of them were destroyed by storms. the english seamen had been arbitrarily pressed into this service. a royal proclamation of 1601 offered a reward of 100 pounds for information on libels against the queen. there had been mounting demonstrations against her monopolies, which mostly affected household items. there had been abuses of monopolies, such as the steel monopoly had been sold for 12 pounds 10s., but steel was then sold at 5d. per pound instead of the former 2 1/2 d. per pound. further the steel was mixed and of a lesser quality. this so damaged the knife and sword industry that about 2000 workers lost their jobs from it and became beggars. monopoly was a severe burden to the middle and poorer classes. also, the power of patent holders to arrest and imprison persons charged with infringing upon their rights was extended to any disliked person. when the house of commons protested against monopolies in 1601, elizabeth reduced them. she addressed her council and the commons saying that "mr. speaker, you give me thanks, but i doubt me that i have more cause to thank you all than you me; and i charge you to thank them of the lower house from me. for had i not received a knowledge from you, i might have fallen into the lapse of an error only for lack of true information. since i was queen yet did i never put my pen to any grant but that upon pretext and semblance made unto me, it was both good and beneficial to the subject in general, though a private profit to some of my ancient servants who had deserved well. but the contrary being found by experience, i am exceedingly beholding to such subjects as would move the same at the first. and i am not so simple to suppose but that there be some of the lower house whom these grievances never touched; and for them i think they speak out of zeal to their countries and not out of spleen or malevolent affection, as being parties grieved. and i take it exceedingly gratefully from them, because it gives us to know that no respects or interests had moved them other than the minds they bear to suffer no diminution of our honor and our subjects' love unto us, the zeal of which affection tending to ease my people and knit their hearts unto me, i embrace with a princely care. for above all earthly treasures i esteem my people's love, more than which i desire not to merit. that my grants should be grievous unto my people and oppressions to be privileged under color of our patents, our kingly dignity shall not suffer it. yea, when i heard it i could give no rest unto my thoughts until i had reformed it. shall they (think you) escape unpunished that have thus oppressed you, and i have been respectless of their duty and regardless of our honor? no, no, mr. speaker, i assure you, were it not more for conscience' sake than for any glory or increase of love that i desire, these errors, troubles, vexations, and oppressions done by these varlets and low persons (not worthy the name of subjects) should not escape without condign punishment. but i perceive they dealt with me like physicians who, ministering a drug, make it more acceptable by giving it a good aromatical savor; or when they give pills, do gild them all over. i have ever used to set the last judgment day before my eyes and so to rule as i shall be judged, to answer before a higher judge. to whose judgment seat i do appeal that never thought was cherished in my heart that tended not unto my people's good. and now if my kingly bounties have been abused and my grants turned to the hurts of my people, contrary to my will and meaning, or if any in authority under me have neglected or perverted what i have commited to them, i hope good will not lay their culps [sins] and offenses to my charge. who, though there were danger in repealing our grants, yet what danger would i not rather incur for your good than i would suffer them still to continue? i know the title of a king is a glorious title, but assure yourself that the shining glory of princely authority hath not so dazzled the eyes of our understanding but that we well know and remember that we also are to yield an account of our actions before the great judge. to be a king and wear a crown is a thing more glorious to them that see it than it is pleasant to them that bear it. for myself, i was never so much enticed with the glorious name of a king or royal authority of a queen as delighted that god hath made me his instrument to maintain his truth and glory, and to defend this kingdom from peril, dishonor, tyranny, and oppression. there will never queen sit in my seat with more zeal to my country, care to my subjects, and that will sooner with willingness venture her life for your good and safety, than myself. for it is not my desire to live or reign longer than my life and reign shall be for your good. and though you have had and may have many princes more mighty and wise sitting in this seat, yet you never had or shall have any that will be more careful and loving." about 1584, richard hakluyt, a bristol clergyman, wrote "a particular discourse concerning western discoveries". this was to become the classic statement of the case for english colonization. it held out hope that the english would find needed timber for masts, pitch, tar, and ashes for soap. in rome in 1600, giordano bruno, an italian monk and priest, was burned alive at the stake by a court of the inquisition for not recanting, although tortured, his heretical and blasphemous philosophy. he had opined that christianity was irrational and had no scientific basis, that christ was only a skillful magician, that the bible could not be taken literally, that god and nature were not separate as taught by genesis, that the catholic church encouraged ignorance from the instinct of self-preservation, and that the earth and planets revolved around the sun, as did other planets around other suns. the jesuits, a new catholic order brimming with zeal, sent missionaries to england to secretly convert people to catholicism. the practice of catholicism had gone underground in england, and some catholic house-holders maintained catholic priests in hidden places in their homes. the law although estate tails (estates descendible only to the heirs of the body of the original feofee) by law could not be sold or given away, this was circumvented by use of a straw man. in collaboration with the possessor of the property, this straw man sued the possessor asserting that the property had been wrongfully taken from the straw man. the possessor pleaded that the crier of the court who had warranted it should be called to defend the action. he failed to appear until after judgment had been given to the straw man. then the straw man conveyed it to the possessor or his nominee in fee simple. no one shall make false linen by stretching it and adding little pieces of wood, which is so weak that it comes apart after five washings. timber shall not be felled to make logs for fires for the making of iron. no one may take small fish to feed to dogs and pigs. only nets with mesh leaving three inches spaces may be used to catch fish. no attainder shall result in the forfeiture of dower by the offender's wife nor disinheritance of his heirs. the following statute of artificers regulated labor for the next two centuries: no master or mistress may employ a servant for a term less than one year in the crafts of clothiers, woolen cloth weavers, tuckers, fullers, clothworkers, shearmen, dyers, hosiers, tailors, shoemakers, tanners pewterers, bakers, brewers, glovemakers, cutlers, smith, farriers, curriers, saddlers, spurriers, turners, cappers, hatmakers, feltmakers, bow-makers, arrow-makers, arrow-head-makers, butchers, cooks, or millers, so that agriculture will be advanced and idleness diminished. also, every craftsman unmarried or under age 30 who is not working must accept employment by any person needing the craft work. also, any common person between 12 and 60 who is not working must accept employment in agriculture. and, unmarried women between 12 and 40 may be required by town officials to work by the year, the week, or day for wages they determine. all artificers and laborers hired by the day or week shall work from 5 am to 7 pm. all artificers must labor at agriculture at haytime and harvest to avoid the loss of grain or hay. every householder who raises crops may receive as an apprentice a child between 10 and 18 to serve in agriculture until he is age 21. a householder in a town may receive a child as an apprentice for 7 years, but merchants may only take as apprentices children of parents with 40s. freehold. (this was designed to inhibit migration to the towns. it excluded three fourths of the rural population.) no one may be a craftsman until he has served seven years as an apprentice. these artificers may have children as apprentices: smith, wheelmaker, ploughmaker, millmaker, miller, carpenter, rough mason, plasterer, a timber sawer, an ore burner, a lime burner, brickmaker, bricklayer, tilemaker, tiler, layer of slate roofs, layer of wood shingle roofs, layer of straw roofs, cooper, earthen potter, linen weaver, housewife who weaves wool for sale or for household use. fish, but no meat, may be eaten on wednesdays so that there will be more fishermen and mariners and repair of ports. (this was done because fishing had declined since the dissolution of the monasteries. eating fish instead of meat in lent in the springtime remained a tradition.) for repairing of highways, the supervisors may take the rubbish or smallest stones of any quarry along the road in their precinct. embezzlement or theft by a servant of his master's goods of 40s. or more is a felony. no one shall forge a deed of land, charter, sealed writing, court roll or will. no one shall libel or slander so as to cause a rebellion. cut-purses and pick-purses shall not have benefit of clergy. a debtor may not engage in a fraudulent collusion to sell his land and goods in order to avoid his creditors. a person robbing a house of 5s. by day when no one is there shall not have benefit of clergy, because too many poor persons who cannot hire a servant to look after their house when they go to work have been robbed. when the hue and cry is raised for a robbery in a hundred, and other hundreds have been negligent, faulty, or defective in pursuit of the robber, then they must pay half the damages to the person robbed, while the hundred in which the robbery occurred pays the other half. robbers shall be pursued by horse and by foot. the price of barrels shall be set by mayors of the towns where they are sold. no man under the degree of knight may wear a hat or cap of velvet. caps may not be made of felt, but only knit wool. only hats may be made of felt. this is to assist the craft of making wool caps. every person over 6 years of age shall wear on sundays a wool knitted cap made by the cappers, except for maidens, ladies, gentlewomen, noble persons, and every lord, knight, and gentlemen with 2,667s. of land, since the practice of not wearing caps has damaged the capping industry. this employed cappers and poor people they had employed and the decrepit and lame as carders, spinners, knitters, parters, forsers, thickers, dressers, dyers, battelers, shearers, pressers, edgers, liners, and bandmakers. rugs shall weigh 44 pounds at least and be 35 yards at least in length and at most 3/4 yard wide. the incorporated company of ship masters may erect beacons and marks on the seashores and hills above, because certain steeples and other marks used for navigation have fallen down and ships therefore have been lost in the sea. there shall be one sheriff per county, because now there are enough able men to supply one per county. trials of noblemen for treason shall be by their peers. a native or denizen merchant in wholesale or retail goods who leaves the nation to defraud his creditors shall be declared a bankrupt. the chancellor may conduct an investigation to ascertain his land, house, and goods, no matter who may hold them. they shall be appraised and sold to satisfy his debts. loan contracts for money lent may not be for more than 200s. for each 2000s. yearly. all loans of money or forbearing of money in sales of goods for less than this shall be punishable by forfeit of the interest only. no cattle may be put in any enclosed woods that have been growing less than five years. at the end of five years growth, calves may be put in. at the end of six years growth, cattle may be put in. the mother and reputed father of any bastard who has been left to be kept at the parish where born must pay weekly for the upkeep and relief of such child, so that the true aged and disabled of the parish get their relief and to punish the lewd life. no master at a university may lease any land unless 1/3 of it is retained for raising crops to supply the colleges and halls for food for their scholars. persons with 100s. in goods or 40s. in lands shall find two able men in their parish community to repair the highways yearly. landowners of oxford shall be taxed for the repair of the highway and bridge there. woods around london shall not be felled to be converted to coals for iron-works because london needs the wood to make buildings and for fireplaces. every melter and maker of wax from honeycombs shall put his mark on every piece of his wax to be sold. wrought wax such as in lights, staff-torches, red wax or sealing wax, book candles, or searing candles shall bear its maker's mark. all barrels of honey shall bear the mark of the honeymaker. wool cloth, cotton cloth, flannel cloth, hose-yarn, hats, and caps shall be dyed black only with dye from the woad plant and not with any false black dye. no one shall take or kill any pheasants with nets or devices at nighttime because such have become scarce. lands, tenements, goods and chattels of accountants teller, or receiver who are in debt may be obtained by court order to satisfy the debt by garnishing the heir of the debtor after the heir has reached 21 and for the 8 years next ensuing. fraudulent and secret conveyances made to retain the use of one's land when one sells the land to a bona fide purchaser for value in fee simple, fee tail, for life, for lives, or for years are void. no new iron mills or furnaces for making or working of any iron or iron metal shall be established in the country around london and the owners of carriages of coals, mines and iron which have impaired or destroyed the highways shall also carry coal ashes, gravel, or stone to repair these highways or else make a payment of 2s.6d. for each cart load not carried. no one shall bribe an elector to vote for a certain person for fellow, scholar, or officer of a college, school, or hall or hospital so that the fittest persons will be elected, though lacking in money or friends, and learning will therefore be advanced. cottage and dwelling houses for workmen or laborers in mineral works, coal mines, or quarries of stone or slate for the making of brick, tile, lime, or coals shall be built only within a mile from such works. dwelling houses beyond this must be supported by four acres of land to be continually occupied and manured as long as the dwelling house is inhabited or forfeit 40s. per month to the queen. cottages and dwelling houses for sailors or laborers working on ships for the sea shall be built only within a mile of the sea. a cottage may be built in a forest or park for a game keeper of the deer. a cottage may be built for a herd-man or shepherd for the keeping of cattle or sheep of the town. a cottage may be built for a poor, lame, sick, aged, or disabled person on waste or common land. more families than one may not be placed in one cottage or dwelling house. a vagabond or mighty strong beggar [able to work] shall be whipped. any person with land in fee-simple may establish a hospital, abiding place, or house of correction to have continuance forever as a corporation for the sustenance and relief of the maimed, poor, or disabled people as to set the poor to work. the net income shall not exceed 40,000s. yearly. troops of vagabonds with weapons in the highways who pretend to be soldiers or mariners have committed robberies and murders. so all vagabonds shall settle down in some service or labor or trade. pontage [toll for upkeep and repair of bridges] shall be taken at certain bridges: carts 2d., horse and pack 1d., a flock of sheep 2d. crown officials such as treasurers, receivers, accountants, and revenue collectors shall not embezzle crown funds and shall be personally liable for arrears. persons forcibly taking others across county lines to hold them for ransom and those taking or giving blackmail money and those who burn barns or stacks of grain shall be declared felons and shall suffer death, without any benefit of clergy or sanctuary. no bishop may lease land for more than twenty-one years or three lives. no bishop may alienate any possession of their sees to the crown. such are void. stewards of leet and baron courts may no longer receive, in their own names, profits of the court over 12d. since they have vexed subjects with grievous fines and amercements so that profits of justice have grown much. incorrigible and dangerous rogues shall be branded with an "r" mark on the left shoulder and be put to labor, because banishment did not work as they came back undetected. if one is caught again begging, he shall be deemed a felon. any innkeeper, victualler, or alehouse keeper who allows drinking by persons other than those invited by a traveler who accompanies him during his necessary abode there and other than laborers and handicraftsmen in towns upon the usual working days for one hour at dinner time to take their diet in an alehouse and other than laborers and workmen following their work to any given town to sojourn, lodge, or victual in any inn, alehouse or victualling house shall forfeit 10s. for each offense. this is because the use of inns, alehouses, and victualling houses was intended for relief and lodgings of travelling people and people not able to provide their own victuals, but not for entertainment and harboring of lewd and idle people who become drunk. if a person marries a second time while the first spouse is still living, it shall be a felony and thus punishable by death. watermen transporting people on the thames river shall have served as apprentice to a waterman for five years or have been the son of a waterman. this is to prevent the loss of lives and goods by inexperienced watermen. no one may make any hat unless he has served as apprentice for at least seven years. this is to prevent false and deceitful hatmaking by unskillful persons. spices and potions, including pepper, cloves, mace, nutmeg, cinnamon, ginger, almonds, and dates, which have usually been garbled shall be garbled, cleaned, sorted, and sealed by the garbler before sale. this is to prevent mingled, corrupt, and unclean spices and potions from being sold. plasterers shall cease painting because it has intruded upon the livelihoods of painters who have been apprenticed as such. pawn brokers accepting stolen goods shall forfeit twice their value to the owner from whom stolen. no butcher may cut any hide or any ox, bull, steer, or cow so that it is impaired or may kill any calf under five weeks old. no butcher may be a tanner. no one may be a tanner unless apprenticed as such for seven years or the son or wife of a tanner who has tanned for four years or a son or daughter of a tanner who inherits his tanhouse. tanners may not be shoemakers, curriers, butchers, or leatherworkers. only tanners may buy raw hides. only leatherworkers may buy leather. only sufficiently strong and substantial leather may be used for sole-leather. curriers may not be tanners. curriers may not refuse to curry leather. london searchers shall inspect leather, seal and mark that which is sufficient, and seize any that is insufficiently tanned, curried, wrought, or used. fishermen and their guides may continue to use the coastland for their fishing activities despite the trespass to landowners. since sails for ships in recent years have been made in the realm instead of imported, none shall make such cloth unless he has been apprenticed in such or brought up in the trade for seven years. this is to stop the badness of such cloth. any person killing any pheasant, partridge, dove, pigeon, duck or the like with any gun, crossbow, stonebow, or longbow, or with dogs and nets or snares, or taking the eggs of such from their nests, or tracing or taking hares in the snow shall be imprisoned for three months unless he pays 20s. per head or, after one month's imprisonment, have two sureties bound for 400s. this is because the past penalty of payment hasn't deterred offenders, who frequently cannot pay. persons affected by the plague may not leave their houses or be deemed felons and suffer death. this is to avoid further infection. the towns may tax their inhabitants for the relief of infected persons. tonnage [tax per ton] and poundage [tax per pound] on goods exported and imported shall be taken to provide safeguard of the seas for such goods. all persons must go to the established church on sundays and holy days. the penalty was at first forfeiture 12d. along with church punishment, and later, 20 pounds per month and being bound by two sureties for 200 pounds for good behavior, and if the 20 pounds is not paid, then forfeiture of all goods to be applied to the amount due and two-thirds of one's land. these laws were directed against catholicism, but were laxly enforced as long as worship was not open and no one wore priestly clothes: the writing, preaching, or maintaining of any foreign spiritual jurisdiction shall be punished by forfeiture of goods or, if the goods are not worth 20 pounds, one year imprisonment, for the first offence; forfeiture of goods and lands and the king's protection, for the second offence; and the penalty for high treason for the third offence. any person leading others to the romish [catholic] religion is guilty of high treason. the penalty for saying mass is [2,667s.] 200 marks and one year's imprisonment. the penalty for hearing mass is [1,333s.] 100 marks and one year's imprisonment. if one is suspected of being a jesuit or priest giving mass, one must answer questions on examination or be imprisoned. papists [those who in conscience refused to take the oath of supremacy of the crown over the church] must stay in their place of abode and not go five miles from it, unless licensed to do so for business, or forfeit one's goods and profits of land for life. if a copyholder, land is forfeited to one's lord. but if the goods are not worth 800s. or the land is not worth at least 267s., the realm must be abjured. otherwise, the papist is declared a felon without benefit of clergy. if a child is sent to a foreign land for catholic education, he cannot inherit lands or goods or money, unless he conforms to the established church on his return. there is also a 100 pound penalty for the persons who sent him. devising or speaking seditious rumors are penalized by the pillory and loss of both ears for the first offense; and 200 pounds and six months imprisonment for the second offence. slandering the queen is penalized by the pillory and loss of one ear, or by [1,333s.] 100 marks and three months imprisonment, at the choice of the offender. the second offence is a felony. printing, writing, or publishing seditious books is a felony without benefit of clergy. wishing the queen dead, prophesying when she would die, or who would succeed her to the crown is a felony without benefit of clergy. attainders for these felonies shall not work corruption of the blood [heirs may inherit the property of the felon]. because the publication of many books and pamphlets against the government, especially the church, had led to discontents with the established church and to the spreading of sects and schisms, the star chamber in 1585 held that the printing trade was to be confined to london, except for one press at oxford and one at cambridge. no book or pamphlet could be printed unless the text was first seen, examined, and allowed by the archbishop of canterbury or the bishop of london. book publishers in violation were to be imprisoned for six months and banned from printing; their equipment was to be destroyed. wardens were authorized to search wherever "they shall have reasonable cause of suspicion", and to seize all such books and pamphlets printed. but printers continued to print unlicensed material. judicial procedure jurors shall be selected from those people who have at least 80s. annual income instead of 40s. because sheriffs have been taking bribes by the most able and sufficient freeholders to be spared at home and the poorer and simpler people, who are least able to discern the causes in question, and most unable to bear the charges of appearance and attendance in such cases have been the jurors. also there had been inflation. defendants sued or informed against upon penal statutes may appear by attorney so that they may avoid the inconvenience of traveling a long distance to attend and put to bail. no only sheriffs, but their employees who impanel juries or execute process in the courts shall take an oath of office. a hundred shall answer for any robbery therein only if there has been negligence or fault in pursuit of the robber after a hue and cry is made because the past law has been too harsh and required payment for offenses from people unable to pay who have done everything reasonable to catch the robber. the star chamber became the central criminal court after 1560, and punished perjury, corruption, malfeasance throughout the legal system such as jury corruption and judicial bribery, rioting, slander, and libel. its procedure was inquisitory rather than accusative. it heard witnesses in camera [not in the presence of the suspected]. trial was by systematic interrogation of the suspected on oath, with torture if necessary in treason cases. silence could be taken for a confession of guilt. there was no jury. queen elizabeth chose not to sit on this court. punishments were imprisonment, fines, the pillory, ear cropping or tacking, whipping, stigmata on the face, but not death or any dismemberment except for the ears. (the gentry was exempt from whipping.) the ecclesiastical high commission [later called the court of high commission or high court of ecclesiastical causes] took over criminal cases formerly heard by the church courts. it also heard matters of domestic morals. it was led by bishops and privy council members who in 1559 were authorized by a statute of parliament to keep order within the church, discipline the clergy, and punish such lay offenses as were included in the ecclesiastical jurisdiction. obstinate heresy is still a capital crime, but practically the bishops have little power of forcing heretics to stand trial. if anyone maintains papal authority, he forfeits his goods; on a third conviction, he is a traitor. the clergyman who adopts a prayer book other that the prescribed one commits a crime. excommunication has imprisonment behind it. elizabeth gave this court the power to fine and imprison, which the former church courts had not had. at first, the chief work was depriving papists of their benefices. suits on titles to land were restricted to the common law courts and no longer to be heard in the star chamber, chancery court, or in the court of requests (equity for poor people). the queen's privy council investigated sedition and treason, security of the regime, major economic offenses, international problems, civil commotion, officials abusing their positions, and persons perverting the course of justice. it frequently issued orders to justices of the peace, for instance to investigate riots and crimes, to enforce the statutes against vagrancy and illegal games, to regulate alehouses, to ensure that butchers, innkeepers, and victuallers did not sell meat on fish days, and to gather information needed from the counties. the justices of the peace decided misdemeanors such as abduction of heiresses, illegal entry, petty thievery, damage to crops, fence-breaking, brawling, personal feuds, drunken pranks, swearing, profanation of the sabbath, alehouse nuisances, drunkenness, perjury, and malfeasance by officials. they held petty and quarter sessions. the justices of the peace had administrative duties in control of vagrancy, upkeep of roads and bridges, and arbitration of lawsuits referred to them by courts. they listed the poor in each parish community, assessed rates for their maintenance, and appointed overseers to administer the welfare system, deploying surplus funds to provide houses of correction for vagrants. raw materials such as wool, flax, hemp, and iron were bought upon which the able-bodied unemployed could be set to work at the parochial level. they determined wages in their districts, with no statutory ceiling on them, for all laborers, weavers, spinsters, workmen and workwomen working by the day, week, month, or year, or taking any work at any person's hand. there were about 50 justices of the peace per county. all were unpaid. they performed these duties for the next 200 years. the justices of assize rode on circuit twice a year to enforce the criminal law and reported their assessment of the work of the justices of the peace back to the privy council. the duty to hear and determine felonies was taken from justices of the peace by 1590. the justices of assize did this work. accused people could wait for years in gaol before their case was heard. felonies included breach of prison, hunting by night with painted faces, taking horses to scotland, stealing of hawks' eggs, stealing cattle, highway robbery, robbing on the sea, robbing houses, letting out of ponds, cutting of purses, deer-stealing at night, conjuring and witchcraft, diminution of coin, counterfeiting of coins, and impenitent roguery and idleness. the penalty was death. many people were hanged for the felony of theft over 12d. some bold men accused of felony refused to plead so that they could not be tried and found guilty. they died of heavy weights being placed on their bodies. but then their property could go to their heirs. the court of queen's bench and exchequer indirectly expanded their jurisdiction to include suits between citizens, formerly heard only the court of common pleas or chancery. chancery interrogated defendants. chancery often issued injunctions against suits in the common law courts. trial by combat was very rare. benefit of clergy may not be had for stabbing a person who has no weapon drawn, if he dies within six months. pleadings had to be in writing and oral testimony was given by sworn witnesses. case decisions are in books compiled by various reporters who sit in on court hearings rather than in year books. in the common law, trespass has given rise to the offshoot branch of "ejectment", which becomes the common means of recovering possession of land, no matter what kind of title the claimant asserts. trespass on the case has given rise to the offshoot branch of "trover" [finding another's goods and converting them to one's own use]. trover gradually supplants detinue, in which there is compurgation. in the common law courts, the action of assumpsit for enforcing certain promises is used more than the action of debt in those cases where there is a debt based on an agreement. the essential nature of "consideration" in contract is evolving from the procedural requirements for the action of assumpsit. consideration may consist in mutual promises, a precedent debt, or a detriment incurred by one who has simultaneously received a promise related to the detrimental action. consideration must be something, an act, or forbearance of an act that is of value. for instance, forbearance to sue a worthless claim is not consideration. the abstract concept of contract as an agreement between two parties which is supported by consideration is developing as the number of various agreements that are court enforceable expands. for instance the word "consideration" is used in hayward's case in 1595 in the court of wards on the construction of a deed. sir rowland hayward was seised in fee of the doddington manor and other lands and tenements, whereof part was in demesne, part in lease for years with rents reserved, and part in copyhold, by indenture, "in consideration of a certain sum of money" paid to him by richard warren and others, to whom he demised, granted, bargained and sold the said manor, lands and tenements, and the reversions and remainders of them, with all the rents reserved upon any demise, to have and to hold to them and their assigns, presently after the decease of sir rowland, for the term of 17 years. it was held that the grantees could elect to take by bargain and sale or by demise, each of which had different consequences. in another case, a delivered 400s. to b to the use of c, a woman, to be delivered to her on the day of her marriage. before this day, a countermanded it, and called home the money. it was held in the chancery court that c could not recover because "there is no consideration why she should have it". in a case concerning a deed, a sold land to b for 400s., with confidence, that it would be to the use of a. this bargain "hath a consideration in itself ... and such a consideration is an indenture of bargain and sale". it was held that the transaction was not examinable except for fraud and that a was therefore estopped. a court reporter at the king's bench formulated two principles on consideration of the case of wilkes against leuson as: "the heir is estopped from falsifying the consideration acknowledged in the deed of feoffment of his ancestor. where a tenant in capite made a feoffment without consideration, but falsely alleged one in the deed on an office finding his dying seised, the master of the wards cannot remove the feoffees on examining into the consideration, and retain the land until &c. and though the heir tended, still if he do not prosecute his livery, the queen must admit the feoffees to their traverse, and to have the farm, &c." the court reporter summarized this case as follows: wilkes, who was merchant of the staple, who died in february last past, made a feoffment in the august before his death to one leuson, a knight, and his brother, and another, of the manor of hodnel in the county of warwick; and the deed,(seen) for seven thousand pounds [140,000s.] to him paid by the feoffees, of which sum he made acquittance in the same deed (although in fact and in truth not a half-penny was paid), gave, granted, and confirmed &c "habendum eir et hoeredibus suis in perpetuum, ad proprium opus et usum ipsorum a. b. et c. in perpetuum," and not "hoeredum suorum," together with a clause of warranty to them, their heirs and assigns, in forma proedicta: and notwithstanding this feoffment he occupied the land with sheep, and took other profits during his life; and afterwards his death was found on a diem clausit extremum by office, that he died seised of the said manor in fee, and one i. wilkes his brother of full age found his next heir, and a tenure in capite found, and now within the three months the said feoffees sued in the court of wards to be admitted to their traverse, and also to have the amnor in farm until &c. and although the said i. wilkes the brother had tendered a livery, yet he had not hitherto prosecuted it, but for cause had discontinued. and whether now the master of the wards at his discretion could remove the feoffees by injunction out of possession upon examination of the said consideration of the said feoffment which was false, and none such in truth, and retain it in the hands of the queen donec et quousque &c. was a great question. and by the opinion of the learned counsel of that court he cannot do it, but the queen is bound in justice to give livery to him who is found heir by the office, or if he will not proceed with that, to grant to the tenderers the traverse, and to have the farm, &c. the request above mentioned. and this by the statutes ... and note, that no averment can be allowed to the heir, that the said consideration was false against the deed and acknowledgment of his ancestor, for that would be to admit an inconvenience. and note the limitation of the use above, for divers doubted whether the feoffees shall have a fee-simple in the sue, because the use is not expressed, except only "to themselves (by their names) for ever;" but if those words had been wanting, it would have been clear enough that the consideration of seven thousand pounds had been sufficient, &c. for the law intends a sufficient consideration by reason of the said sum; but when the use is expressed otherwise by the party himself, it is otherwise. and also the warranty in the deed was "to them, their heirs, and assigns, in form aforesaid," which is a declaration of the intent of wilkes, that the feoffees shall not have the use in fee simple; and it may be that the use, during their three lives, is worth seven thousand pounds, and more &c. and suppose that the feoffment had been "to have to them and their heirs to the proper use and behoof of them the feoffees for the term of their lives for ever for seven thousand pounds," would they have any other estate than for the term of their lives in the use? i believe not; and so in the other case. a last example of a case concerning consideration is that of assaby and others against lady anne manners and others. the court reporter characterized the principle of the case as: "a. in consideration of his daughter's marriage covenants to stand seised to his own use for life, and that at his death she and her husband shall have the land in tail, and that all persons should stand seised to those uses, and also for further assurance. after the marriage he bargains and sell with fine and recovery to one with full notice of the covenants and use; this is of no avail, but on the death of a. the daughter and her husband may enter." the court reporter summarized this case as follows: a. was seised of land in fee, and in consideration of a marriage to be had between his daughter and heir apparent, and b. son and heir apparent of c. he covenanted and agreed by indenture with c. that he himself would have, hold, and retain the land to himself, and the profits of during his life, and that after his decease the said son and daughter should have the land to them and to the heirs of their two bodies lawfully begotten, and that all persons then or afterwards seised of the land should stand and be seised immediately after the marriage solemnized to the use of the said a. for the term of his life, and after his death to the use of the said son and daughter in tail as above, and covenanted further to make an assurance of the land before a certain day accordingly &c. and then the marriage took effect; and afterwards a. bargained and sold the land for two hundred marks [2,667s.](of which not a penny is paid) to a stranger, who had notice of the first agreements, covenants, and use, and enfeoffed divers persons to this last use, against whom a common recovery was had to his last use; and also a. levied a fine to the recoverers before any execution had, and notwithstanding all these things a. continued possession in taking the profits during his life; and afterwards died; and the son and daughter entered, and made a feoffment to their first use. and all this matter was found in assize by assaby and others against lady anne manners and others. and judgment was given that the entry and feoffment were good and lawful, and the use changed by the first indenture and agreement. yet error was alleged. the judgment in the assize is affirmed. the famous shelley's case stands for the principle that where in any instrument an estate for life is given to the ancestor, and afterwards by the same instrument, the inheritance is limited whether mediately, or immediately, to his heirs, or heirs of his body, as a class to take in succession as heirs to him, the word "heirs" is a word of limitation, and the ancestor takes the whole estate. for example, where property goes to a for life and the remainder goes to a's heirs, a's life estate and the remainder merge into a fee in a. a can sell or devise this interest. edward shelley was a tenant in tail general. he had two sons. the older son predeceased his father, leaving a daughter and his wife pregnant with a son. edward had a common recovery (the premises being in lease for years) to the use of himself for term of his life, after his decease to the use of the male heirs of his body, and of the male heirs of the body of such heirs, remainder over. after judgment and the awarding of the writ of seisin, but before its execution, edward died. after his death, and before the birth of his older son's son, the writ of seisin was executed. the younger son entered the land and leased it to a third party. afterwards, the son of the older son was born. he entered the land and ejected the third party. it was held that the younger son had taken quasi by descent until the birth of the older son's son. the entry by the older son's son was lawful. the third party was lawfully ejected. (shelley's case, king's bench, 1581, english reports full reprint, vol. 76, page 206.) chapter 14 the times: 1601-1625 due in part to increasing population, the prices of foodstuffs had risen sixfold from the later 1400s, during which it had been stable. this inflation gradually impoverished those living on fixed wages. landlords could insist on even shorter leases and higher rents. london quadrupled in population. many lands that were in scattered strips, pasture lands, waste lands, and lands gained from drainage and disafforestation were enclosed for the introduction of convertible agriculture (e.g. market-oriented specialization) and only sometimes for sheep. the accompanying extinguishment of common rights was devastating to small tenants and cottagers. gentry and yeomen benefited greatly. there was a gradual consolidation of the land into fewer hands and demise of the small family farm. in towns, the mass of poor, unskilled workers with irregular work grew. prices finally flattened out in the 1620s. society became polarized with a wealthy few growing wealthier and a mass of poor growing poorer. this social stratification became a permanent fixture of english society. poverty was no longer due to death of a spouse or parent, sickness or injury, or a phase in the life cycle such as youth or old age. many full-time wage earners were in constant danger of destitution. more subdivided land holdings in the country made holdings of cottagers miniscule. but these were eligible for parish relief under the poor laws. beside them were substantial numbers of rogues and vagabonds wandering the roads. these vagrants were usually young unmarried men. there were no more licensed liveries of lords. during the time 1580 to 1680, there were distinct social classes in england which determined dress, convention in comportment which determined face-to-face contacts between superiors and inferiors, order of seating in church, place arrangement at tables, and rank order in public processions. it was influenced by power, wealth, life-style, educational level, and birth. these classes lived in separate worlds; their paths did not cross each other. people moved only within their own class. each class had a separate existence as well as a different life style from the other classes. so each class developed a wariness of other classes. however, there was much social mobility between adjacent classes. at the top were the gentry, about 2% of the population. their's was a landed wealth with large estate mansions. they employed many servants and could live a life of leisure. their lady wives often managed the household with many servants and freely visited friends and went out shopping, riding, or walking. they conversed with neighbors and made merry with them at childbirths, christenings, churchings, and funerals. gentlemen usually had positions of responsibility such as lords of manors and leaders in their parishes. these families often sent the oldest son to university to become a justice of the peace and then a member of parliament. they also served as justices and as county officers such as high constable of their hundred and grand jury member. their social, economic, and family ties were at least county-wide. they composed about 700 gentle families, including the peers, who had even more landed wealth, which was geographically dispersed. after the peers were: baronets (created in 1611), knights, esquires, and then ordinary gentlemen. these titles were acquired by being the son of such or purchase. most gentry had a house in london, where they spent most of their time, as well as country mansions. about 4/5 of the land was in the hands of 7,000 of the nobility and landed gentry due in part to entails constructed by attorneys to favor hereditary interests. the gentry had also profited by commerce and colonial possessions. the country life of a country squire or gentleman dealt with all the daily affairs of a farm. he had men plough, sow, and reap. he takes part in the haying and getting cut grass under cover when a rain came. his sow farrows, his horse is gelded, a first lamb is born. he drags his pond and takes out great carps. his horses stray and he finds them in the pound. boys are bound to him for service. he hires servants, and some work out their time and some run away. his hog is stabbed. knaves steal his sheep. he and a neighbor argue about the setting up of a cottage. he borrows money for a daughter's dowry. he holds a leet court. he attends church on sunday and reads the lesson when called upon. he visits the local tavern to hear from his neighbors. country folk brawl. wenches get pregnant. men commit suicide, usually by hanging. many gentlemen spent their fortunes and died poor. new gentlemen from the lower classes took their place. the second class included the wealthier merchants and professional men of the towns. these men were prominent in town government. they usually had close family ties with the gentry, especially as sons. when wealthy enough, they often bought a country estate. the professional men included military officers, civil service officials, attorneys, some physicians, and a few clergymen. the instabilities of trade, high mortality rates in the towns, and high turnover rate among the leading urban families prevented any separate urban interest group arising that would be opposed to the landed gentry. also included in this second group were the most prosperous yeomanry of the countryside. the third class was the yeomanry at large, which included many more than the initial group who possessed land in freehold of at least 40s., partly due to inflation. freehold was the superior form of holding land because one was free to sell, exchange, or devise the land and had a political right to vote in parliamentary elections. other yeomen were those who possessed enough land, as copyholder or leaseholder, to be protected from fluctuations in the amount of the annual harvest, that is, at least 50 acres. a copyholder rented land from a lord for a period of years or lives, usually three lives including that of the widow, and paid a substantial amount whenever the copyhold came up for renewal. the copyholder and leaseholder were distinguished from the mere tenant-at-will, whose only right was to gather his growing crop when his landlord decided to terminate his tenancy. the average yeoman had a one and a half story house, with a milkhouse, a malthouse, and other small buildings attached to the dwelling. the house would contain a main living room, a parlor, where there would be one or more beds, and several other rooms with beds. no longer was there a central great hall. cooking was done in a kitchen or over the open fire in the fireplace of the main room. furniture included large oak tables, stools, settes or forms, chests, cupboards, and a few hard-backed simple chairs. dishware was wood or pewter. the yeomen were among those who governed the nation. they often became sureties for recognizances, witnesses to wills, parish managers, churchwardens, vestrymen, the chief civil officers of parishes and towns, overseers of the poor, surveyors of bridges and highways, jurymen and constables for the justices of the peace, and sheriffs' bailiffs. the families and servants of these yeomen ate meat, fish, wheaten bread, beer, cheese, milk, butter, and fruit. their wives were responsible for the dairy, poultry, orchard, garden, and perhaps pigs. they smoked and cured hams and bacon, salted fish, dried herbs for the kitchen or of lavender and pot-pourri for sweetening the linen, and arranged apples and roots in lofts or long garrets under the roof to last the winter. they preserved fruits candied or in syrup. they preserved wines; made perfumes, washes for preserving the hair and complexion, rosemary to cleanse the hair, and elder-flower water for sunburn; distilled beverages; ordered wool hemp, and flax to spin for cloth (the weaving was usually done in the village); fashioned and sewed clothes and house linens; embroidered; dyed; malted oats; brewed; baked; and extracted oils. many prepared herb medicines and treated injuries, such as dressing wounds, binding arteries, and setting broken bones. wives also ploughed and sowed, weeded the crops, and sheared sheep. they sometimes cared for the poor and sold produce at the market. some yeomen were also tanners, painters, carpenters, or blacksmiths; and as such they were frequently brought before the justices of the peace for exercising a craft without having served an apprenticeship. the third class also included the freemen of the towns, who could engage independently in trade and had political rights. these were about one-third of the male population of the town. the fourth class included the ordinary farmer leasing by copyhold, for usually 21 years, five to fifty acres. from this class were drawn sidesmen [assistants to churchwardens] and constables. they had neither voice nor authority in government. their daily diet was bacon, beer, bread, and cheese. also in this class were the independent urban craftsmen who were not town freemen. their only voice in government was at the parish level. the fifth and lowest class included the laborers and cottagers, who were usually tenants at will. they were dependent on day labor. they started work at dawn, had breakfast for half an hour at six, worked until dinner, and then until supper at about six; in the summer they would then do chores around the barns until eight or nine. some were hedgers, ditchers, ploughmen, reapers, shepherds, and herdsmen. the cottagers' typical earnings of about 1s. a day amounted to about 200 shillings a year, which was almost subsistence level. accordingly they also farmed a little on their four acres of land with garden. some also had a few animals. they lived in a one or two room cottage of clay and branches of trees or wood, sometimes with a brick fireplace and chimney, and few windows. they ate bread, cheese, lard, soup, and greens. if a laborer was unmarried, he lived with the farmer. theirs was a constant battle for survival. they often moved because of deprivation to seek opportunity elsewhere. the town wage-earning laborers ranged from journeymen craftsmen to poor casual laborers. the mass of workers in london were not members of guilds, and the crime rate was high. the last three classes also contained rural craftsmen and tradesmen, who also farmed. the variety of trades became very large, e.g. tinsmiths, chain smiths, pewterers, violin makers, and glass painters. the curriers, who prepared hides for shoemakers, coachmakers, saddlers, and bookbinders, were incorporated. the fourth and fifth classes comprised about three fourths of the population. then there were the maritime groups: traders, shipowners, master and seamen, and the fishers. over one fourth of all households had servants. they were the social equals of day laborers, but materially better off with food and clothing plus an allowance of money of two pounds [40s.] a year. those who sewed got additional pay for this work. there was no great chasm between the family and the servants. they did not segregate into a parlor class and a kitchen class. the top servants were as educated as their masters and ate at the same table. great households had a chaplain and a steward to oversee the other servants. there was usually a cook. lower servants ate together. servants were disciplined by cuffs and slaps and by the rod by master or mistress. maids wore short gowns, a large apron, and a gypsy hat tied down over a cap. chamber maids helped to dress their mistresses. servants might sleep on trundle beds stored under their master's or mistress's bed, in a separate room, or on the straw loft over the stables. a footman wore a blue tunic or skirted coat with corded loop fasteners, knee-britches, and white stockings. he walked or ran on foot by the side of his master or mistress when they rode out on horseback or in a carriage and ran errands for him, such as leading a lame horse home or running messages. a good footman is described in this letter: "sir, you wrote me lately for a footman, and i think this bearer will fit you: i know he can run well, for he has run away twice from me, but he knew the way back again: yet, though he has a running head as well as running heels (and who will expect a footman to be a stayed man) i would not part with him were i not to go post to the north. there be some things in him that answer for his waggeries: he will come when you call him, go when you bid him, and shut the door after him; he is faithful and stout, and a lover of his master. he is a great enemy to all dogs, if they bark at him in his running; for i have seen him confront a huge mastiff, and knock him down. when you go a country journey, or have him run with you a-hunting, you must spirit him with liquor; you must allow him also something extraordinary for socks, else you must not have him wait at your table; when his grease melts in running hard, it is subject to fall into his toes. i send him to you but for trial, if he be not for your turn, turn him over to me again when i come back..." dress was not as elaborate as in elizabethan times. for instance, fewer jewels were worn. ladies typically wore a brooch, earrings, and pearl necklaces. men also wore earrings. watches with elaborate cases were common. women's dresses were of satin, taffeta, and velvet, and were made by dressmakers. pockets were carried in the hand, fastened to the waist by a ribbon, or sewn in petticoats and accessible by a placket opening. the corset was greatly reduced. women's hair was in little natural-looking curls, a few small tendrils on the forehead with soft ringlets behind the ears, and the back coiled into a simple knot. men also wore their hair in ringlets. they had pockets in their trousers, first as a cloth pouch inserted into an opening in the side seam, and later sewn into the side seam. the bereaved wore black, and widows wore a black veil over their head until they remarried or died. rouge was worn by lower class women. the law dictating what clases could wear what clothes was difficult to enforce and the last one was in 1597. cotton chintzes, calicoes, taffetas, muslins, and ginghams from india were fashionable as dress fabrics. simple cotton replaced linen as the norm for napkins, tablecloths, bed sheets, and underwear. then it became the fashion to use calicoes for curtains, cushions, chairs, and beds. its inexpensiveness made these items affordable for many. there was a cotton-weaving industry in england from about 1621, established by cotton workmen who fled to england in 1585 from antwerp, which had been captured. by 1616, there were automatic weaving looms in london which could be operated by a novice. toothbrushes, made with horsehair, were a new and costly luxury. even large houses now tended to do without a courtyard and became compacted into one soaring and stately whole. a typical country house had deep-set windows of glass looking into a walled green court with a sundial in it and fringed around with small trees. the gables roofs are steep and full of crooks and angles, and covered with rough slate if there was a source for such nearby. there was an extensive use of red tile, either rectangular or other shapes and with design such as fishscales. the rooms are broad and spacious and include hall, great parlor, little parlor, matted chamber, and study. in the hall was still the great, heavy table. dining tables were covered with cloth, carpet, or printed leather. meals were increasingly eaten in a parlor. noble men preferred to be waited upon by pages and grooms instead of by their social equals. after dinner, they deserted the parlor to retire into drawing rooms for conversation and desserts of sweet wine and spiced delicacies supplemented by fruit. afterward, there might be dancing and then supper. in smaller parlors, there was increasing use of oval oak tables with folding leaves. chests of drawers richly carved or inlaid and with brass handles were coming in. walls were wainscotted and had pictures or were hung with tapestry. carpets, rugs, and curtains kept people warm. there were many stools to sit on, and some arm chairs. wide and handsome open staircases separated the floors, instead of the circular stone closed stairwells. upstairs, the sitting and bedrooms open into each other with broad, heavy doors. bedrooms had four-post beds and wardrobes with shelves and pegs. under the roof are garrets, apple-lofts, and root-chambers. underneath is a cellar. outside is a farmyard with outbuildings such as bake house, dairy, cheesepress house, brewery, stilling house, malt house, wood house, fowl house, dove cot, pig stye, slaughter-house, barns, stable, and sometimes a mill. there were stew-ponds for fish and a park with a decoy for wild fowl. there was also a laundry, carpenter's bench, blacksmith's forge, and pots and equipment of a house painter. in the 1600s, towns were fortified by walled ditch instead of relying on castles, which couldn't contain enough men to protect the townspeople. also in towns, water was supplied by local pumps and wells. also, floors were of polished wood or stone and strewn with rushes in the country. a ladies' attendant might sleep the same bedroom on a bed which slid under the ladies' bed. apprentices and shop boys had to sleep under the counter. country laborers slept in a loft on straw. bread was made in each household. there were bedroom chairs with enclosed chamber pots. wood fires were the usual type. coal was coming in to use in the towns and near coal mines. charcoal was also used. food was roasted on a spit over a fire, baked, or broiled. people still licked their fingers at meals. the well-to-do had wax candles. tallow dips were used by the poor and for the kitchen. people drank cordials and home-made wines made with grapes, currants, oranges, or ginger. some mead was also drunk. tobacco, potatoes, tea, asparagus, kidney beans, scarlet runners, cardoons (similar to artichokes), horse-radish, sugar-cane, and turkeys for christmas, were introduced from the new world, china, and india. tea was a rare and expensive luxury. coffee was a new drink. with the cane sugar was made sweetened puddings, pies, and drinks. the potato caused the advent of distillation of alcohol from fermented potato mashes. there was a distiller's company by 1638. distilleries' drinks had higher alcoholic content than wine or beer. the merchant adventurers sold in town stores silks, satins, diamonds, pearls, silver, and gold. there were women peddlers selling hats and hosiery from door to door and women shopkeepers, booksellers, alehouse keepers, linen drapers, brewers, and alewives. london had polluted air and water, industrial noise, and traffic congestion. work on farms was still year-round. in january and february, fields were plowed and harrowed and the manure spread. also, trees and hedges were set, fruit trees pruned, and timber lopped. in march and april, the fields were stirred again and the wheat and rye sown. in may gardens were planted, hop vines trained to poles, ditches scoured, lambs weaned, and sheep watched for "rot". in june sheep were washed and sheared, and fields were spread with lime and clay, and manured. in july hay was cut, dried, and stacked. in august crops were harvested, which called for extra help from neighbors and townsmen who took holidays at harvesting. then there was threshing, and the sowing of winter wheat and rye. in the autumn, cider from apples and perry from pears may be made. by november the fall planting was finished and the time had come for the killing of cattle and hanging up their salted carcasses for winter meat. straw would be laid down with dung, to be spread next spring on the fields. stock that could not live outdoors in winter were brought into barns. government regulated the economy. in times of dearth, it ordered justices of the peace to buy grain and sell it below cost. it forbade employers to lay off workers whose products they could not sell. it used the star chamber court to enforce economic regulations. there were food riots usually during years of harvest failure, in which organized groups seized foodstuffs being transported or in markets, and enclosure riots, in which organized groups destroyed hedges and fences erected in agrarian reorganization to restrict access to or to subdivide former common pasture land. these selfhelp riots were last resorts to appeals and were orderly. the rioters were seldom punished more than a fining or whipping of the leaders and action was taken to satisfy the legitimate grievances of the rioters. the poor came to resent the rich and there was a rise in crime among the poor. penal laws were frequently updated in an effort to bring more order. enclosures of land were made to carry on improved methods of tillage, which yielded more grain and more sheep fleece. drainage of extensive marsh land created more land for agriculture. waste land was used to breed game and "fowling" contributed to farmers' and laborers' livelihoods. killing game was not the exclusive right of landowners, but was a common privilege. the agricultural laborer, who worked for wages and composed most of the wageearning population, found it hard to make ends meet. in 1610, weekly wages for a mason were 8s. or 5s., for a laborer were 6s. or 4s., for a carpenter 8s. or 6s. an unskilled laborer received 1s. a day. there were conventions of paternalism and deference between neighbors of unequal social status. a social superior often protected his lessers from impoverishment for instance, the landlord lessened rents in times of harvest failure. a social superior would help find employment for a lesser person or his children, stand surety for a recognizance, intervene in a court case, or have his wife tend a sick member of his lesser's family. a social obligation was felt by most of the rich, the landlords, the yeomen farmers, and the clergy. this system of paternalism and social deference was expressed and reinforced at commonly attended village sports and games, dances, wakes and "ales" (the proceeds of which went to the relief of a certain person in distress), "rush-bearings", parish feasts, weddings, christenings, "churchings" to give thanks for births, and funerals. even the poor were buried in coffins. also there was social interaction at the local alehouse, where neighbors drank, talked, sung, and played at bowls or "shove goat" together. quarrelling was commonplace. for instance, borough authorities would squabble over the choice of a schoolmaster; the parson would carry on a long fight with parishioners over tithe hens and pigs; two country gentlemen would continue a vendetta started by their great-grandfathers over a ditch or hunting rights; the parishioners would wrangle with the churchwardens over the allocation of pews. the position of one's pew reflected social position. men tried to keep the pews of their ancestors and the newly prosperous wanted the recognition in the better pews, for which they had to pay a higher amount. but, on the other hand, farmers were full of good will toward their neighbors. they lent farm and kitchen equipment, helped raise timbers for a neighbor's new barn, sent food and cooked dishes to those providing a funeral feast and to the sick and incurable. village standards of behavior required that a person not to drink to excess, quarrel, argue, profane, gossip, cause a nuisance, abuse wife or children, or harbor suspicious strangers, and to pay scot and bear lot as he was asked. neighbors generally got along well and frequently borrowed and loaned small sums of money to each other without interest for needs that suddenly arose. bad behavior was addressed by mediation and, if this failed, by exclusion from holy communion. there was also whipping and the stocks. marital sex was thought to be good for the health and happiness of the husband and enjoyable by wives. the possibility of female orgasm was encouraged. both women and men were thought to have "seed" and drank certain potions to cause pregnancy or to prevent birth. some argued that orgasm of both partners was necessary for the "seed" of the male and female to mix to produce pregnancy. most women were in a virtual state of perpetual pregnancy. both catholics and protestants thought that god wanted them to multiply and cover the earth. catholics thought that the only goal of sex was procreation. men were considered ready for marriage only when they could support a family, which was usually at about age 30. brides were normally virgins, but there was bridal pregnancy of about 20%. women usually married at about age 25. marriages were usually within one's own class and religion. the aristocracy often initiated matches of their children for the sake of continuity in the family estates and tried to obtain the consent of their children for the match in mind. the age of consent to marry was 14 for boys and 12 for girls. girls in arranged marriages often married at 13, and boys before they went to university. but the girls usually stayed with their parents for a couple of years before living with their husbands. if married before puberty, consummation of the marriage waited for such time. in other classes, the initiative was usually taken by the child. dowries and marriage portions usually were given by the parents of the bride. wet-nurses frequently were used, even by puritans. there were no baby bottles. many babies died, causing their parents much grief. about 1/4 of women's deaths occurred during childbirth. a child was deemed to be the husband's if he was within the four seas, i.e. not in foreign lands, for an agreed length of time. illegitimacy was infrequent, and punished by church-mandated public penance by the mother and lesser penance and maintenance by the father. adultery was subject to church court sanctions as was defamation for improper sexual conduct. the established church still taught that the husband was to be the authority in marriage and had the duty to provide for, protect, and maintain his wife. wives were to obey their husbands, but could also admonish and advise their husbands without reproach. in literature, women were portrayed as inferior to men intellectually and morally as well as physically. in reality wives did not fit the image of women portrayed by the church and literature. quarrels were not uncommon and were not stopped by a husband's assertion of authority. wives were very active in the harvesting and did casual labor of washing, weeding, and stone-picking. farmers' and tradesmen's wives kept accounts, looked after the garden, orchard, pigs, and poultry; brewed beer; spun wool and flax; and acted as agents in business affairs. wives of craftsmen and tradesmen participated actively in their husbands' shops. wives of weavers spun for their husband's employers. wives of the gentry ran their households with their husbands. the lady of a large mansion superintended the household, ordering and looking after the servants, and seeing to the education of her children. mothers handed down their recipes to their daughters. women still did much needlework and embroidering for clothing and house, such as cushions, screens, bed curtains, window curtains, hangings, footstools, book covers, and small chests of drawers for valuables. liking simplicity, puritan women did less of this work. naming one's wife as executor of one's will was the norm. jointures were negotiated at the betrothal of ladies. widows of manorial tenants were guaranteed by law one-third of family real property, despite creditors. but most testators went beyond this and gave a life interest in the farm or family house. so it was customary for a widow to remain in occupation of the land until her death or remarriage. few widow or widowers lived with one of their children. widows usually had their husband's guild rights and privileges conferred upon them, e.g. to receive apprentices. in london, custom gave 1/3 of a deceased husband's estate to his wife on his death, but 2/3 if there were no children. the other part went according to his will. if a widows did not remarry in memory of her husband, she was esteemed. but remarriage was common because the life expectancy after birth was about 35 years. sons of the well-to-do went into law, the church, the army, or the navy. if not fit for such, they usually went into a trade, apprenticing, for instance, with a draper, silk-merchant, or goldsmith. sometimes a son was sent to the house of a great man as a page or esquire to learn the ways of courtiers and perhaps become a diplomat. the guild with its master and their employees was being replaced by a company of masters. about 5% of the population was catholic, although it was against the law to practice this religion. indeed it long been the practice to sequester their lands, punish them for going to mass, fine them for not attending the established church, banish their priests, and imprison those who aided priests. there was a catholic plot in 1605 to blow up parliament and the king with gunpowder and to restore catholicism as the state religion with a catholic king. it was discovered and the conspirators were executed. then there was a crack-down on catholics, with houses being searched for hiding places for priests. also, legislation was passed barring catholics from many offices. james i ruled over both england and scotland. he had come from scotland, so was unfamiliar with english love of their rights and passion for liberty and justice. when he came to the throne, he had a conference with a group of puritans who asked for certain reforms: ceremonies such as the cross in baptism and the ring in marriage should not be used, only educated men competent to preach should be made ministers, bishops should not be allowed to hold benefices that they did not administer, and minor officials should not excommunicate for trifles and twelve-penny matters. he not only denied their requests, but had the english bible revised into the king james version, which was published in 1611. this was to replace the popular geneva bible written by english protestant refugees from catholic queen mary's reign, which he did not like because some of its commentary was not highly favorable to kings. religion was much discussed by all and scripture was frequently quoted. james didn't believe a king had to live by the law; he hadn't as king of scotland. he tried to imbue into england the idea of a divine right of kings to rule that he had held in scotland. the established church quickly endorsed and preached this idea. the selection of the clergy of the parish churches was now often in the hands of the parishioners, having been sold to them by the patron lord of the manor. some patrons sold the right of selection to a tradesman or yeoman who wished to put in his son or a relative. some rights of selection were in the hands of bishops, the colleges, and the crown. the parish clergyman was appointed for life and removed only for grave cause. most parishoners wanted a sermon created by their minister instead of repetitious homilies and constant prayer. they thought that the object of worship in church was to rouse men to think and act about the problems of the world. in 1622, the king mandated that clergymen quote scripture only in context of the book of articles of religion of 1562 or the two books of homilies and not preach any sermon on sunday afternoon except on some part of the catechism or some text out of the creed, ten commandments, or the lord's prayer. the puritan movement grew. about 5% of the protestants were puritans. these included country gentlemen and wealthier traders. they dressed simply in gray or other drab colors and wore their hair short to protest the fashion of long curls. they lived simply and disapproved of dancing because it induced lasciviousness and of theater because of its lewdness. theaters and brothels still shared the same neighborhoods, the same customers, and sometimes the same employees. prostitutes went to plays to find customers; men shouldered and shoved each other in competing to sit next to attractive women to get to know them. the puritans also disapproved of cock fights because they led to gambling and disorder, and maypole celebrations because of their paganism. there was less humor. many became stoics. the puritan church ceremonies were plain, with no ornamentation. puritans prayed several times a day and read the bible to each other in family groups to look for guidance in their conduct and life. they asked for god to intervene in personal matters and looked for signs of his pleasure or displeasure in happenings such as a tree falling close but not touching him, or his horse throwing him without injury to him. when there was an illness in the family or misfortune, they examined their past life for sins and tried to correct shortcomings. they circulated records of puritan lives including spiritual diaries. they believed in the equality of men and that a good man was better than a bad peer, bishop, or king. puritan influence made families closer and not merely dependent on the will of the husband or father. there was a sense of spiritual fellowship among family members as individuals. they emphasized the real need of a lasting love relationship between husband and wife, so a mutual liking that could develop into love between a young couple in an arranged match was essential. most puritans felt that the bishops were as tyrannical as the pope had been and that more reform was needed. they favored the presbyterian form of church government developed by john calvin in switzerland. the presbyter was the position below bishop. parishes were governed by boards consisting of a minister and lay elders elected by the parishioners. these boards sent elected representatives to councils. all lay elders and ministers had equal rank with each other. the calvinist god preordained salvation only for the elect and damnation and everlasting punishment for the rest of humanity, but the puritans had an optimism about avoiding this damnation. they believed that at his conversion a person received grace and became predestined for salvation. they rejected all ecclesiastical institutions except as established by each parish over its own elected pastor and members. they rejected the established church's control from the top by bishops. they believed in negotiating directly with god for the welfare of the soul without the priest or church organization. the fear of witchcraft grew with puritanism. poor decrepit old defenseless women, often deformed and feeble-minded, were thought to be witches. their warts and tumors were thought to be teats for the devil to suck or the devil's mark. cursing or ill-tempers (probably from old age pains) or having cats were further indications of witchery. when the king learned in 1618 that the puritans had prevented certain recreations after the sunday service, he proclaimed that the people should not be restrained from lawful recreations and exercise such as dancing, archery for men, leaping, vaulting, maygames, whitsunales, morris-dances, and may-pole sports. also women could carry rushes to decorate the church as they had done in the past. (still unlawful on sunday was bear and bull baitings and bowlings.) his stated purpose was to prevent people such as catholics from being deterred from conversion, to promote physical fitness for war, and to keep people from drinking and making discontented speeches in their ale houses. besides the puritans, there were other independent sects, such as the congregationalists, whose churches gathered together by the inspiration of jesus. this sect was started by english merchants residing in holland who set up congregations of englishmen under their patronage there; they kept minister and elders well under their control. the baptists emerged out of the independents. they believed that only adults, who were capable of full belief, and not children, could be baptized. they also believed that it was the right of any man to seek god's truth for himself in the scriptures and that obedience to the state should not extend beyond personal conscience. one fourth of all children born did not live to the age of ten, most dying in their first year. babies had close caps over their head, a rattle, and slept in a sturdy wood cradle that rocked on the floor, usually near the hearth. babies of wealthier families had nurses. the babies of ladies were suckled by wet nurses. parents raised children with affection and tried to prepare them to become independent self-sustaining adults. there was less severity than in tudor times, although the maxim "spare the rod and spoil the child" was generally believed, especially by puritans, and applied to even very young children. in disciplining a child, an admonition was first used, and the rod as a last resort, with an explanation of the reasons for its use. there were nursery rhymes and stories such as "little bo-peep", "jack and the beanstalk", "tom thumb", "chicken little", and robin hood and king arthur tales, and probably also "puss in boots", "red ridinghood", "cinderella", "beauty and the beast", "bluebeard" and aesop's fables. "little jack horner" who sat in a corner was a satire on the puritan aversion to christmas pudding and sense of conscious virtue. toys included dolls, balls, drums, and hobby horses. children played "hide and seek", "here we go around the mulberry bush", and other group games. school children were taught by "horn books". this was a piece of paper with the alphabet and perhaps a religious verse, such as the paternoster prayer, that was mounted on wood and covered with thin horn to prevent tearing. little girls cross-stitched the alphabet and numerals on samplers. block alphabets were just coming in. most market towns had a grammar school which would qualify a student for university. they were attended by sons of noblemen, country squires [poor gentlemen], merchants, and substantial yeomen, and in some free schools, the poor. school hours were from 6:00 a.m. to noon or later. multiplication was taught. if affordable, families had their children involved in education after they were small until they left home at about fifteen for apprenticeship or service. otherwise, children worked with their families from the age of seven, e.g. carding and spinning wool, until leaving home at about fifteen. there were boarding schools such as winchester, eton, westminster, st. paul's, and merchant taylors'. there, senior boys selected for conduct and ability supervised younger boys. they thereby got experience for a future in public life. the system was also a check on bullying of the weak by the strong. the curriculum included lilly's "grammar", aesop, terence's roman comic plays, virgil's "aeneid", the national epic of rome, cicero's "letters" reflecting roman life, sallust's histories showing people and their motives, caesar's "commentaries" on the gallic and civil wars, horace's "epistles" about life and poetry, poet ovid's "metamorphoses" on adventures and love affairs of deities and heros, or "fasti" on roman religious festivals and customs, donatus' grammar book, and other ancient latin authors. football, with hog bladders, and tennis were played. these schools were self-supporting and did their own farming. private schools for girls were founded in and around london. they were attended by daughters of the well-to-do merchant class, nobility, and gentry. they were taught singing, playing of instruments, dancing, french, fine sewing, embroidery, and sometimes arithmetic. fewer served in the house of some noble lady as before. most commonly, the sons and daughters of gentlemen and nobles were taught by private tutors. a tutor in the house educated the girls to the same extent as the boys. there were not many girls' boarding schools. frequently, the mother educated her daughters. a considerable number of girls of other backgrounds such as the yeomanry and the town citizenry somehow learned to read and write. boys began at university usually from age 14 to 18, but sometimes as young as 12. the universities provided a broad-based education in the classics, logic and rhetoric, history, theology, and modern languages for gentlemen and gave a homogenous national culture to the ruling class. there was a humanist ideal of a gentleman scholar. the method of study based largely on lectures and disputations. each fellow had about five students to tutor. in many cases, he took charge of the finances of his students, paying his bills to tradesmen and the college. his reimbursement by the students' fathers put them into friendly contact with the family. the students slept in trundle beds around his bed and had an adjacent room for study. scholasticism was only starting to give way to modern studies. aristotle, whose authority was paramount, remained the lynch pin of university studies, especially for logic and dialectic. the study of rhetoric was based on quintilian, the latin writer, and the greek treatise of hermogenes of tarsus. also studyed was cicero's orations as models of style. examination for degrees was by disputation over a thesis of the student. the b.a. degree was given after four years of study, and the m.a. after three more. there were advanced degrees in civil law (after seven more years of study), medicine (after seven years), divinity (required more than seven years), and music. many of the men who continued for advanced degrees became fellows and took part in the teaching. most fellowships were restricted to clerics. oxford and cambridge universities operated under a tutorial system. access to grammar schools and universities was closed to girls of whatever class. oxford university now had the bodleian library. in the universities, there were three types of students: poor scholars, who received scholarships and also performed various kinds of service such as kitchen work and did errands for fellows such as carrying water and waiting on tables; commoners, who paid low fees and were often the sons of economical gentlemen or businessmen; and the fellow commoners (a privileged and well-to-do minority, usually sons of noblemen or great country gentlemen). the fellow commoners paid high fees, had large rooms, sometimes had a personal tutor or servant, and had the right to eat with the fellows at high table. here, gentlemen made friends with their social equals from all over the country. students wore newfashioned gowns of any colors and colored stockings. they put on stage plays in latin and english. the students played at running, jumping, and pitching the bar, and at the forbidden swimming and football. they were not to have irreligious books or dogs. cards and dice could be played only at christmas time. students still drank, swore, and rioted, but they were disallowed from going into town without special permission. those below a b.a. had to be accompanied by a tutor or an m.a. they were forbidden from taverns, boxing matches, dances, cock fights, and loitering in the street or market. sometimes a disputation between two colleges turned into a street brawl. punishment was by flogging. each university had a chancellor, usually a great nobleman or statesman, who represented the university in dealings with the government and initiated policies. the vice-chancellor was appointed for a year from the group of heads of college. he looked out for the government of halls, enforced the rules of the university, kept its courts, licensed wineshops, and shared control of the town with the mayor. tutors were common. they resided at the boy's house or took boys to board with them at their houses in england or on the continent. the tutor sometimes accompanied his student to grammar school or university. puritans frequently sent their sons to board in the house of some frenchman or swiss protestant to learn the calvinist doctrines or on tour with a tutor. certain halls in the universities were predominately puritan. catholics were required to have their children taught in a home of a protestant, a relative if possible. the inns of court were known as "the third university". it served the profession of law, and was a training ground for the sons of nobility and the gentry and for those entering the service of the commonwealth. some american colonists sent their sons there. the inns were self-governing and ruled by custom. students were supposed to live within the inn, two to a room, but often there were not enough rooms, so some students lived outside the quadrangles. every student was supposed to partake of commons or meals for a certain fraction of the year from eight weeks to three months and there to argue issues in cases brought up by their seniors. in hall the students were not allowed to wear hats, though caps were permitted, nor were they to appear booted or spurred or carrying swords. for the first two years, they would read and talk much of the law, and were called clerks commoners. after two years they became mootmen or inner barristers. in five or six years they might be selected to be called to the bar as utter barristers, whose number was fixed. there was no formal examination. the utter barrister spent at least three more years performing exercises and assisting in directing the studies of the younger men. after this time, he could plead in the general courts at westminster, but usually carried on law work in the offices of other men and prepared cases for them. participating in moots (practice courts) was an important part of their education. lectures on statutes and their histories were given by readers physicians were licensed by universities, by the local bishop, or in london, by the college of physicians and surgeons. most were university graduates, and because of the expense of the education, from well-to-do families. for the b.a., they emphasized greek. for the m.a., they studied the works of greek physicians claudius galen and hippocrates, and perhaps some medieval authorities. after the m.a., they listened to lectures by the regius professor of medicine and saw a few dissections. three years of study gave them a m.b., and four more years beyond this the m.d. degree. a physician's examination of a patient cost 10s. and included asking him about his symptoms and feelings of pain, looking at this eyes, looking at his body for spots indicative of certain diseases, guessing whether he had a fever, feeling his pulse, and examining urine and stools, though there were no laboratory tests. smallpox was quickly recognized. it was treated by red cloth being wrapped around the person and put up to cover the windows; this promoted healing without scarring. gout was frequent. syphilis was common in london and other large centers, especially in court circles. it was ameliorated by mercury. an imbalance of the four humors: blood, phlegm, choler, bile was redressed by blood-letting, searing, draining, and/or purging. heart trouble was not easily diagnosed and cancer was not recognized as a life-threatening disease. childbirth was attended by physicians if the patient was well-to-do or the case was serious. otherwise women were attended only by midwives. they often died in childbirth, many in their twenties. the theory of nutrition was still based on the four humors and deficiency diseases were not understood as such. physician william harvey, son of a yeoman, discovered the circulation of the blood from heart to lungs to heart to body about 1617. he had studied anatomy at padua on the continent and received an m.d. there and later at cambridge. then he accepted a position at the hospital of st. bartholomew to treat the poor who came there at least once a week for a year. he agreed to give the poor full benefit of his knowledge, to prescribe only such medicines as should do the poor good without regard to the pecuniary interest of the apothecary accompanying him, to take no reward from patients, and to render account for any negligence on his part. he also dissected animals. then he ascertained that the heart was a pump and that the valves in the veins prevented backflow and he followed the course of the circulation. the language of medicine became that of physics and mechanics, e.g. wheels and pulleys, wedges, levers, screws, cords, canals, cisterns, sieves and strainers. this diminished the religious concept that the heart was the seat of the soul and that blood had a spiritual significance and was sacred. a visit by a physician cost 13s.4d. melancholia, which made one always fearful and full of dread, and mania, which made one think he could do supernatural things, were considered to be types of madness different from infirmities of the body. despite a belief held by some that anatomical investigation of the human body was a sin against the holy ghost, physicians were allowed to dissect corpses. so there were anatomy textbooks and anatomy was related to surgery. barber-surgeons extracted teeth and performed surgery. the physicians turned surgery over to the surgeons, who received a charter in 1605 by which barbers were excluded from all surgical work except blood-letting and the drawing of teeth. surgeons dealt with skin disease, ulcers, hernia, bladder stones, and broken bones, which they had some skill in setting. they performed amputations, which were without antiseptics or anesthesia. internal operations usually resulted in death. caesarian section was attempted, but did not save the life of the mother. apprenticeship was the route to becoming a surgeon. a college of surgeons was founded. students learned anatomy, for which they received the corpses of four executed felons a year. the apothecaries and grocers received a charter in 1607, but in 1618, the apothecaries were given the sole right to purchase and sell potions, and to search the shops of grocers and stop the sale by them of any potions. in london, the apothecaries were looked over by the college of physicians to see that they were not selling evil potions or poisons. in 1618 was the first pharmacy book. there were three hospitals in london, two for the poor, and bedlam [bethlehem] hospital for the insane. others were treated at home or in the physician's home. theaters were shut down in times of plague to prevent spread of disease there. towndwellers who could afford it left to live in the country. shakespeare wrote most of his plays. most popular reading was still bibles, prayer books, psalm books, and devotional works. also popular were almanacs, which started with a single sheet of paper. an almanac usually had a calendar; information on fairs, roads, and posts; farming hints; popularized scientific knowledge; historical information; sensational news; astrological predictions; and later, social, political, and religious comment. many households had an almanac. books tried to reconcile religion and science and religion and passion or sensuality. walter ralegh's "history of the world", written while he was in prison, was popular. ben johnson wrote poetry and satiric comedies. gentlemen read books of manners such as james cleland's "institution of a young noble man (1607). in 1622, the first regular weekly newspaper was started. although there was a large advance in the quality of boys' education and in literacy, the great majority of the people were unable to read fluently. since writing was taught after one could read fluently, literacy was indicated by the ability to sign one's name. almost all gentlemen and professional men were literate. about half the yeomen and tradesmen and craftsmen were. only about 15% of husbandmen, laborers, servants, and women were literate. the royal postal system carried private as well as royal letters, to increase income to the crown. postmasters got regular pay for handling without charge the mail of letters that came from or went to the letter office in london. the postmaster kept horses which he let, with horn and guide, to persons riding "in post" at 3d. per mile. the post was to travel 7 mph in summer and 5 mph in winter and sound his horn four times in every mile or whenever he met travelers. wool and animals for butchering were sold in london with the sellers' agent in london taking the proceeds and paying out to their order, the origin of check writing. scriveners drew up legal documents, arranged mortgages, handled property transactions, and put borrowers in touch with lenders. they and the goldsmiths and merchants developed promissory notes, checks, and private paper money. the influx of silver from the new world was a major factor in the second great inflation in england and in the devaluation of money to about one third of what it had been. also contributing to the inflation was an outracing of demand over supply, and a debasement of the coinage. this inflation benefited tenants to the detriment of their lords because their rents could not be adjusted upward. there was an increase in bankruptcies. the elizabethan love of madrigal playing gradually gave way to a taste for instrumental music, including organs and flutes. the violin was introduced and popular with all classes. ballads were sung, such as "barbary allen", about a young man who died for love of her, after which she died of sorrow. when they were buried next to each other, a rose from his grave grew around a briar from her grave. the ballad "geordie" relates a story of a man hanged for stealing and selling sixteen of the king's royal deer. the ballad "matty groves" is about a great lord's fair young bride seducing a lad, who was then killed by the lord. in the ballad "henry martin", the youngest man of three brothers is chosen by lot to turn pirate to support his brothers. when his pirate ship tries to take a merchant ship, there is sea fight in which the merchant ship sinks and her men drown. the ballad "the trees they do grow high" tells of an arranged marriage between a 24 year old woman and the 14 year old son of a great lord. she tied blue ribbons on his head when he went to college to let the maidens know that he was married. but he died at age 16, after having sired a son. may day was a holiday with dancing around a maypole and people dressed up as characters such as queen of the may, robin hood, little john, friar tuck, maid marion, the fool, and the piper. new year's day was changed to january 1st. golf was played in scotland, and james introduced it into england. james i was the last monarch to engage in falconry. francis bacon wrote the "advancement of learning" and "novum organum" (new learning) in which he encouraged the use of the inductive method to find out scientific truths and also truths in general, that is reasoning from a sample to the whole. according to him, the only way to arrive at the truth was to observe and determine the correlations of facts. he advocated a process of elimination of ideas. his "new learning" showed the way out of the scholastic method and reverence for dogma into the experimental method. he wrote "natural and experimental history". he also studied the effect of cold in preventing animal putrefaction. galileo galilei, professor of mathematics at the university of padua in italy, conducted experiments, e.g. throwing objects off the tower of pisa in 1590 to show that all, whether light or heavy, fall at the same rate. this disproved the widely held theory that heavier objects fall faster than light objects. he proved that the force of gravity has the same effect on all objects regardless of their size or weight. his law stated that the speed of their descent increases uniformly with the time of the fall, i.e. speed = gravity times time. galileo determined that a pendulum, such as a hanging lamp, swings back and forth in equal intervals of time. for this he measured time with water running out of a vessel. also, the rate of oscillation varies inversely as the square of their cord length, regardless of material or weight. from his observation that an object sliding along a plane slows down at a decreasing rate and travels increasingly farther as the surfaces become smoother and more lubricated, he opined that the natural state of a body in motion is to stay in motion, and that it is slowed down by a force: friction. he conceived of the air offering a resistant force to an object in motion. he expanded on aristotle's idea of an object in a state of rest or of uniform motion in a straight line, so that the former is just a special case of the latter. he opined that bodies at rest stay at rest and bodies in motion stay in uniform motion, unless and until acted upon by some force. so motion need not be explained by the continuing force of a prime mover. he drew a graph of distance versus time for the rolling ball, which indicated that the distance traveled was a square of the time elapsed. he realized that the movement of a projectile involved a horizontal and a vertical component and guessed that the effects of falling were independent of the horizontal motion. he demonstrated that a projectile follows a path of a parabola, instead of a straight line, and that it too descends a distance which is the square of the time taken to fall. that is, a thrown object will strike the ground in the same amount of time as an object simply dropped from the same height. the telescope was invented in 1608. the next year, galileo built a greatly improved telescope using a lens to look at the skies. he observed that the surface of the moon had mountains, valleys, and craters much like the earth, and was illuminated by reflected light. he noticed that the planet jupiter has moons orbiting it. he noted that the planet venus progresses through phases similar to those of the moon orbiting the earth and that it was very large with a crescent shape or very small with a round shape. this apparent change in size could only be explained if venus revolved around the sun, rather than around the earth. thus more credence was given to the copernican theory that the earth and all planets revolve around the sun, so galileo was denounced by the church. he argued against a literal interpretation of the bible. his observation that certain sun spots were on certain locations of the sun but changed over time suggested that the sun might be rotating. he observed that when air was withdrawn by a suction pump from the top of a long glass tube whose lower open end was submerged in a pan of water, the water rose to a height of 34 feet and no higher. he had demonstrated that there was such a thing as a vacuum, which was above the level of the water. about 1600, galileo invented the first thermometer by heating air at the top of a tube whose open end was in a bowl of water; as the top end cooled, the air contracted and water rose partway up the tube; the column of water rose or fell with every change of temperature. galileo invented the compound refracting microscope, which used more than one lens, about 1612. galileo's book on the arguments for and against the copernican theory was unexpectedly popular when published in 1632. the general public was so persuaded by the arguments that the earth revolved around the sun that papal authority felt threatened. so galileo was tried and convicted of heresy and sentenced to prison as an example to others who might question church doctrine, even though the seventy year old galileo recanted and some of the inquisition judges who convicted him believed the copernican theory and their decision did not assert the contrary. john napier, a large calvinist landholder in scotland who had built his own castle, did mathematics in his older years. he explored imaginary numbers such as the square roots of negative numbers. by 1614, he had started and developed the theory of logarithms: the relationships among positive and negative exponents of numbers. this simplified calculations because the multiplication and division of numbers would be equivalent to addition and subtraction of their exponents. his table of logarithms, which took him twenty years to compile, was used in trigonometry, navigation, and astronomy. it reduced the enormous labor involved in trigonometric calculations. johannes kepler was a mathematician from germany who made his living as an astrologer. he was in contact with galileo by letter, as most scientists of europe were with each other. kepler was fascinated with perfect geometric shapes, which he tried to relate to celestial phenomenon. he discerned that the orbit of mars was not perfectly circular. he knew that the apparent path of the sun with respect to the constellation of fixed stars differed in speed at different times of the year. he opined that this showed that the speed of the earth revolving around the sun varied according to the time of year. then he measured the angles between the earth and the sun and the earth and mars as they changed through the martian year. he noted when the earth, mars, and the sun were on the same straight line. then he deduced the earth's true orbit, and from this the true orbits of the other planets. then by trial and error, he attempted to match this empirical data with regular mathematically defined shapes, until he discovered in 1609 that these paths were elliptical. also, the planets each move faster when they are nearer the sun and more slowly when they are farther from the sun so that in equal time intervals, a line from the planet to the sun will sweep out equal areas. this observation led him to opine that there is a force between the sun and each planet, and that this force is the same as that which keeps the moon in its orbit around the earth. thirdly, in 1619, he found that the square of the time for each planet's orbit about the sun is proportional to the cube of that planet's mean distance from the sun, so that the farther planets orbit at a slower speed. he connected the earth's tides with the gravitational pull of the moon. kepler also confirmed that the paths of comets were governed by a law and were farther from the earth from the moon. this contradicted the church's explanation that what lies within the moon's orbit pertains to the earth and is essentially transitory and evil, while what lies beyond belongs to the heavens and is permanent and pure. in 1637, renee descartes, a philosopher, mathematician, and scientist from france, invented analytic [cartesian] geometry, in which lines and geometric shapes can be described by algebraic equations and vice-versa. an algebraic equation with two unknowns, or variables, could be represented as a shape on a coordinate system in which each point is represented by a pair of numbers representing distances from the two axis lines. he started the convention of representing unknown quantities by x, y, and z and known quantities by a, b, and c. so, for instance, a circle with center at point 2,3 and a radius of 4 was represented by the equation: (x-2) squared + (y-3) squared = 4. all conic sections, e.g. ellipses, parabolas, and hyperbolas, could be represented by equations. analytic geometry aided in making good lenses for eyeglasses. the glass was first manufactured with attention to quality. then, after it cooled and solidified, the clearest pieces were picked and their surfaces ground into the proper curvature. descartes pioneered the standard exponential notation for cubes and higher powers of numbers. he formulated the sine-law of refraction, which determines in general the way a light ray is deflected, according to the density of the media through which it passes. this explained why a rainbow is circular. in 1644, he described the universe in terms of matter and motion and suggested that there were universal laws and an evolutionary explanation for such. he opined that all effects in nature could be explained by spatial extension and motion laws that 1) each part of matter retains the shape, size, motion, or rest unless collision with another part occurs; 2) one part of matter can only gain as much motion through collision as is lost by the part colliding with it; and 3) motion tends to be rectilinear. these ideas did not correlate with the biblical notion of the creation of the universe by god in seven days, so descartes feared persecution by the church. descartes believed in a good and perfect god, and thought of the world as divided into matter and spirit. the human mind was spirit and could exist outside the human body. the human mind had knowledge without sense experience, e.g. the truths of mathematics and physics. ideas and imagination were innate. his observation that sensory appearances are often misleading, such as in dreams or hallucinations, led him to the conclusion that he could only conclude that: "i think, therefore i am." he rejected the doctrine that things had a proper behavior according to their natures, e.g. the nature of acorns is to develop into oak trees. as an example of erroneous forming of conceptions of substance with our senses alone, he pointed out that honeycomb has a certain taste, scent, and texture, but if exposed to fire, it loses all these forms and assumes others. he expressed that it was error to believe that there are no bodies around us except those perceivable by our senses. he was a strong proponent of the deductive method of finding truths, e.g. arguing logically from a very few selfevident principles, known by intuition, to determine the nature of the universe. christian huygens, a dutch physicist, used the melting and the boiling point of water as fixed points in a scale of measurements, which first gave definiteness to thermometric tests. in 1600 william gilbert, son of a gentleman, and physician to queen elizabeth, wrote a book on terrestrial magnetism which founded the science of electricity. he cultivated the method of experiment and of inductive reasoning from observation and insisted on the need for a search for knowledge not in books but in things themselves. he showed that the earth was a great magnet with a north pole and a south pole, by comparing it to loadstones made into spheres in which a north and south pole could be found by intersecting lines of magnetism indicated by a needle on the stone. the vertical dip of the needle was explained by the magnetic attraction of the north pole. he showed how a loadstone's declination could be used to determine latitude at sea. he showed how the charge of a body could be retained some time by covering the body with some non-conducting substance, such as silk. he distinguished magnetism from electricity, giving the latter its name. he discovered that atmospheric conditions affected the production of electricity, dryness decreasing it, and moisture increasing it. he expounded the idea of copernicus that the earth revolves around the sun in a solar system. however, the prevailing belief was still that the earth was at the center of the universe. there was much mining of coal, tin, copper, lead, and iron in the 1600s. coal was transported from the coal pits down to the rivers to be loaded onto ships on coal wagons riding on wooden rails. the full coal cars could then be sent down by gravity and the empty wagons pulled up by horses. sheet metal, e.g. lead, was used for roofing. coal was much used for heating houses, and for laundry, cooking, and industrial use, such as extraction of salt, soap boilers, and manufacture of glass, bricks and tiles for buildings, anchors for ships, and tobacco pipes. it was used in the trades: bakers, confectioners, brewers, dyers, sugar refiners, coopers, starch makers, copper workers, alum makers, and iron workers. in 1604 the haberdashers, who sold imported felt for hats, got a charter of incorporation. a tapestry factory was established in 1619. flax-working machines came into existence. as attorney general, edward coke was impassioned and melodramatic. he once described the parts of the penalty of treason as follows: being drawn to the place of execution reflected the person's not being worthy any more to tread upon the face of the earth; being drawn backward at a horse tail was due to his retrograde nature; being drawn head downward on the ground indicated that he was unfit to breathe the common air; being hanged by the neck between heaven and earth indicated that he was unworthy of either; being cut down alive and his privy parts cut off and burnt before his face indicated he was unworthily begotten and unfit to leave any generation after him; having his bowels and inners taken out and burnt indicated he had inwardly conceived and harbored such horrible treason; his head cut off, which had imagined the treason, and his body to be quartered and the quarters set up to the view and detestation of men a prey for the fowls of the air. coke was subsequently elevated to the position of chief of common pleas and then to chief of the king's bench. but there coke propounded a doctrine of the supremacy of the law over the king as well as over parliament. for instance, coke would not agree to stay any case in which the king had a concern in power or profit, to consult with him. but the other eleven justices did agree. since james i believed in the divine right of kings, he therefore dismissed coke from his position as chief justice of the king's bench. james even believed that he could suspend any law for reasons known only to him and issue proclamations that were not limited to the reinforcement of old laws, but made new offenses with punishment of fine and/or imprisonment. coke then became a member of parliament and led the commons, where he exalted the authority of parliament vis a vis the king; that is, the king could not make any changes in law, religion, or taxation without consent of parliament. james arrested coke and two other members of the commons and put its leader john pym under house arrest for their outspoken opinions against the king's intended alliance with catholic spain and intended taking of a spanish wife. because of the deadlock that developed between the king and parliament, certain matters could not be addressed by legislation and were left to be decided judicially. this made judicial review important. james vastly increased the number of peerages, selling many, for example for 10,000 pounds. since there was a tacit understanding that members of parliament would not accept remuneration, this restricted eligibility for membership to the rich. the house of commons was composed mostly of attorneys, merchants from the large towns, and country gentlemen. the gentry members had 600 pounds [12,000s] annual income from land and the burgess members had 300 pounds [6,000s.] in addition to the two knights from every county (elected by men holding at least forty-shilling freeholds), four representatives from london, and one or two from every other borough (generally elected by the top business families), there was a representative from each of the two universities. for speaker, they always chose someone suggested to them by the crown. he decided who would talk and could hasten or delay bills, usually for the benefit of the crown. the clerk, a lifetime appointment of the crown, wrote out the bills and their amendments and kept track of proceedings. many in the commons were puritan in sympathy. in 1607, the house of commons developed a committee system to avoid being presided over by the royally designated speaker. a committee could consist of all the members of the house of commons with an elected chairman. an increasing number of issues were discussed in committee before coming to the commons and the commons came to ratify readily what had been done in committee. by 1610, there had developed in the house of commons an opposition to feudal tenures, purveyance, wardships, and impositions (special import and export duties on aliens set by the king without the consent of parliament that were supposed to be for the purpose of regulating trade instead of for revenue). there was also a call for free speech and an end to the king's habit at the end of parliament of imprisoning for a time those who had been too outspoken. the commons also asserted itself into foreign affairs by expressing an opinion against a treaty proposed by the king on which war could ensue. the treaty was abandoned. in london, organized groups such as the apothecaries, the skinners, and the grocers, were circulating printed statements of their cases to members of committees of the house of commons rather than just seeking out a friendly privy council member. in 1621, the protests made to committeemen about monopolies sold by james frightened him into canceling many of them. he had made many grants against competition in violation of law. the right of the commons to expel a member was asserted by the expulsion of a monopolist. by 1629, the speeches of prominent members and the course of proceedings were copied by stationers and sold in a weekly news report. the king's privy council dealt constantly with foreign affairs, and also with the great companies, and problems arising such as gold leaving the country, the dutch ships increased efficiency in transporting goods, the declining market for english cloth, strikes in the mining industry, decaying harbor works, the quality of food and drink, the wrongs done to the poor, and above all, the general peace and order. they formed commissions to study situations and sent orders to justices of the peace on methods to address certain problems and to sheriffs to carry out certain acts. about 1618, a group within the privy council began to concentrate on foreign affairs, especially "cabinet counsels", that is, with secret matters. james sold high offices of state to supplement his income. his income from customs had increased so much that it was now three times that from crown lands. the sheriff looked after crown lands and revenues in his county. he gathered the rents, the annuities, the stray animals, the deodands, the fees due to the king, the goods of felons and traitors. he was still a means of communication between the privy council and the county. he announced new statutes of parliament and proclamations by the king at the county courts and in the markets. he used posse comitatus to disperse riots. he was the functionary of the assize court, impaneling its juries, bringing accused men before it, and carrying out its penalties. he carried out elections of members of the house of commons. there were two high constables for each hundred. they were chosen by the justices of the peace at quarter sessions, and were usually small gentry or well-to-do yeomen. they were the intermediaries between the justices and the petty constables. the petty constable was the executive official of the village. he was usually elected by the suitors to the leet court of the manor for a year. he might be a farmer, an artisan, a carpenter, a shoemaker, or many times a tradesman, a butcher, or baker. he often visited the alehouse to learn of any trouble in the making. he would intervene in quarrels and riots and tell the participants to desist in the king's name. if they didn't, he could call on all bystanders to help him "force a quiet". he had to lead the rioters and causers of injuries to others, hold them there until he could bring him before the nearest justice. he would inform the justice of plots to trespass or forcibly enter land to take possession. he saw to it that no new cottages were built in the villages without due authority. he supervised markets and inns. he reported lapses of care for apprentices by their masters to the justice. at harvest time, he called upon all able bodied persons to assist and punished those who didn't respond by putting them in the stocks or fining them forty shillings. he arrested and whipped vagrants and sturdy rogues and sent them back to their place of birth through constables on the way. if a horse was stolen, he raised the hue and cry to all neighboring constables. he made inquiry into the paternity of the coming child of an unmarried pregnant girl to make him take responsibility for the child and pay her 8d. a week lest it fall into the responsibility of the village. in a town, he might have watchmen to help him see that the streets were peaceful at night. the constable assisted the justice of the peace, the high constable, and the sheriff. he pressed men into military service. he collected taxes for the sheriff and collected the money for purveyance, the money for the poor, maimed soldiers, and various kinds of prisoners, which the parish had to pay. he was often the spokesman for the village in village concerns, such as too many alehouses, brought to the attention of justices at quarter sessions. the constable and churchwardens together collected money for the parish, looked after the needy, and kept in close touch with the overseers of the poor, who cared for the sick and old, found work for the idle, took charge of bastards, apprenticed orphan children, and provided supplies for the workhouse. in 1609 the east india company was given a monopoly by the crown that was indefinitely long as long as it was profitable to the realm in the king's opinion. interlopers were to forfeit their ships and goods, one-half to the company and one-half to the crown. monopoly status made the company competitive with the dutch and portuguese monopoly companies. the crown received a gift or a loan from the company in return. at first, the company raised capital for each separate voyage. but voyages tried to undercut each other and rival factions squabbled over cargoes. so the company then raised a "terminable joint-stock" for a period of years. the first of these was issued in 1613-16 and financed a fleet every year for four years. subscriptions were called in by yearly installments and dividends paid out yearly. the voyage of 1613 brought shareholders a profit equivalent to about 11% a year. by 1620, the company operated thirty to forty "tall ships", many built in its own dockyards. these dockyards were so technologically advanced that they were daily viewed by visitors and ambassadors. here, besides wet and dry docks, there were timber yards, a foundry and cordage works for supplying the ships' hardware and a bakery and saltings for their provisioning. more than 200 craftsmen were directly employed in the yard. overall the company was one of london' largest employers. in 1606, the first charter of the virginia company was issued for trading purposes. it gave the settlers "all liberties, franchises, and immunities" they had in england. to oversee this colony, the crown appointed a council. virginia established the episcopal church by law. it became a joint-stock company in 1609. but exports were few (timber, soap ashes, pitch, tar, and dyes) for several years, and then tobacco emerged as a source of profit. king james imposed a heavy duties on imported tobacco because it corrupted man's breath with a stinking smoke. in 1607, the muscovy company, hired henry hudson to find a northwest passage through north america to the pacific ocean. life was difficult for puritan separatists, who wanted to separate from the established church. they were imprisoned and their houses were watched day and night for illegal meetings. in 1620, after trying holland and when there was a depression in england, a few puritan separatists, along with other pilgrims, left for virginia in the mayflower, but landed in new england and founded plymouth colony. they were led by william bradford and william brewster, their spiritual leader. they planted fields and made friends with the indians. in 1621, they secured a patent to the merchants and planters together for a voluntary joint-stock company in new england. later, it became the self-governing massachusetts bay colony. the canons of the church of 1604 provided for excommunication for anyone who propounded that the king did not have the same authority in ecclesiastical matters as the godly kings among the jews and christian emperors in the primitive church, that the church of england was not a true and apostolic church, that worship according the book of common prayer and administration of sacraments was corrupt or superstitious, or that other methods of the church were wicked, unchristian, or superstitious. church sanctuary was abolished for those accused of criminal offenses because it had been abused by thieves paying their rent by thieving at night. it remained available to those accused of civil offenses. the law churchwardens of every parish shall oversee the poor in their parish. they shall, with consent of the justices of the peace, set to work children whose parents cannot maintain them and also set to work married or unmarried persons who have no trade and no means to maintain themselves. churchwardens shall tax every inhabitant, including parson and vicar and every occupier of land and houses as they shall think fit. there will be a convenient stock of flax, hemp, wool, thread, iron and other necessary ware and stuff to set the poor on work. there will be competent sums of money for the relief of the lame, impotent, old, blind, and others not able to work, and also for the putting out of children to be apprentices. child apprentices may be bound until 21 years of age or until time of marriage. they shall account to the justices of the peace for all money received and paid. the penalty for absence or neglect is 20s. if any parish cannot raise sufficient funds, the justices of the peace may tax other nearby parishes to pay, and then the hundred, and then the county. grandparents, parents, and children of every poor, old, blind, lame, or impotent person not able to work, being of sufficient ability, shall at their own charge, relieve and maintain every such poor person in that manner and according to that rate as justices of the peace of that county determine, or forfeit 20s. per month. two justices of the peace may commit to gaol or house of correction persons refusing to work and disobedient churchwardens and overseers. the overseers may, with the consent of the lord of the manor, build houses on common or waste land for the poor at the expense of the parish, in which they may place more than one family in each houses. every parish shall pay weekly 2-10d. toward the relief of sick, hurt, and maimed soldiers and mariners. counties with more than fifty parishes need pay only 26d. the county treasurer shall keep registers and accounts. soldiers begging shall lose their pension and shall be adjudged a common rogue or vagabond subject to imprisonment and punishment. sheriffs summoning defendants without a writ shall pay 200s. and damages to the defendant, and 400s. to the king. persons stealing crops from lands or fruit from trees shall be whipped. since administrators of goods of people dying intestate who fail to pay the creditors of the deceased often can't pay the debts from their own money, the people (who are not creditors) receiving the goods shall pay the creditors. every person shall receive the holy communion in church at least once a year or forfeit 20 pounds for the first year and 40 pounds for the second year, and threescore pounds for every year after until he takes the said sacrament. no person convicted of catholicism may practice the common law as a counsellor, clerk, attorney, or solicitor, nor may practice civil law as advocate, or proctor, nor shall be justice, minister, clerk, or steward in any court, nor practice medicine, nor perform as apothecary, nor be officer in a town, in the army, or navy, or forfeit 100 pounds. nor may they be administrators of estates, or have custody of any child as guardian. nor may they possess any armor, gunpowder, or arms. nor may anyone print or import popish books rosaries, or forfeit 40s. no merchant may dress black rabbit skins, nor export them, unless dressed by skinners and bought from them because the skinners have been thus deprived of their livelihoods to their impoverishment throughout the realm. beer may be exported when malt is at 16s. per quarter because exporting beer instead of barley and malt will (1) increase the export tax to the king, (2) increase income for coopers and brewers, and (3) provide more jobs in transporting beer, which is more voluminous, to the great comfort of the port towns. spawning and growing fish in harbors may not be taken by any nets or weirs because this practice has hurt fishermen and the realm. london may make a trench to bring water to the north part of the city and shall compensate the owners of lands by agreement with them of an amount or an amount determined by commissioners. actors profaning god, jesus, or the holy ghost on stage are to be penalized 200s. no one shall sell beer or ale to an unlicensed alehousekeeper because abuses there have become intolerable. every person convicted of drunkenness shall be penalized 5s. or else placed in the stocks for six hours, because the loathsome and odious sin of drunkenness has grown into common use lately and it is the root of many other sins, such as bloodshed, stabbings, murder, swearing, fornication, and adultery, and is detrimental to the arts and manual trades and diverse workmen, who become impoverished. offenders convicted a second time shall be bound with two sureties to the sum of 200s. no person at least 18 years of age may be naturalized or restored in blood after being attainted unless he takes the sacrament and the oath of supremacy [of the king over the church of england], and oath of allegiance [to the king]. money given by will for the apprenticeship of poor children shall be managed by incorporated towns and unincorporated parishes. masters receiving such apprentices shall become bound with sufficient sureties. houses of correction shall be built in every county. lewd women, having bastards, chargeable to the parish, shall be committed to the house of correction to be punished and set to work for one year. persons deserting their families shall be deemed incorrigible rogues and punished as such. persons such as sorters who purloin or embezzle wool or yarn delivered to them by clothiers and the receivers thereof, knowing the same, shall recompense the party grieved or else be whipped and set in the stocks. all hospitals and abiding places for the poor, lame, maimed, and impotent persons or for houses of correction founded according to the statute of elizabeth shall be incorporated and have perpetual succession. only lands and hereditaments paying rents to the crown within the last sixty years shall be claimed by the crown; the title of all persons and corporation who have enjoyed uninterruptedly against the crown for the last sixty years are confirmed against the crown. a seminal patent-protection law was passed in 1624. it stated that all monopolies to any person or persons, bodies politic or corporate for the sole buying, selling, making, working, or using of anything within the realm are void. this does not include london or towns. parties aggrieved by such may recover treble damages in the superior courts, with double costs. excepted are existing patents, for 21 years or less, for new inventions and for future patents for 14 years or less. excepted also are patents for printing or making saltpeter, gunpowder, shot or ordinance, etc.; patents concerning allum mines or newcastle coal or glass making or export of calves' skins or making smalts [deep-blue pigment or glass] or melting iron ore; grants of office; and licenses for taverns. because benefit of clergy is not allowed to women convicted of felony by reason whereof many women suffer death for small causes, any woman convicted for the felonious taking of any money, goods or chattels greater than 12d. and less than 10s. other than burglary or robbery on the highway or from the person of any man or woman without their knowledge, shall be branded and marked in the hand upon the brawne of the left thumb with a "t" and imprisonment, whipping, stocking, or sending to the house of correction for a year or less. no one may take more than 8% interest on loans because 10% has caused many, including gentry, merchant, farmer, and tradesman, to sell their land and forsake their trade to pay their debts. mothers concealing the death of a bastard baby shall suffer as for murder, unless one witness proves the child was born dead. papists running a school must forfeit 40s. a day for such. anyone conveying a child beyond the seas to be educated in popery may not sue in the courts, may not hold any office, and shall forfeit 100 pounds and all lands. but the child returning may have his family lands restored to him if he receives the sacrament of the lord's supper in the established church after reaching 18 years of age. in 1604 it was decided that it was not necessary to prove witchcraft caused the death of a person for there to be punishment for it. all that was necessary now was the practice of witchcraft. the punishment was death by hanging. also, consulting or feeding an evil spirit was felony. as attorney general, coke introduced the crime of "seditious libel" in a case before the star chamber in 1606. these written slanders or libels were viewed as incitements to disorder and private vengeance. because the tendency to cause quarrels was the essence of the crime, the truth of the libel was not a defense, but might be an aggravation of criminality. edward coke, former chief justice of both the court of common pleas and court of the queen's bench, wrote his reports on court cases of all kinds through forty years and his institutes on the law, in which he explained and systemized the common law and which was suitable for students. this included a commentary and update of littleton, published in 1627; old and current statutes; a description of the criminal law; and lastly an explanation of the court system, the last two published in 1644. coke declared that "a man's house is his castle". coke waged a long battle with his wife over her extensive property and the selection of a husband for their daughter. in his institutes, he described the doctrine of coverture as "with respect to such part of the wife's personality as is not in her possession, as money owing or bequeathed to her, or accrued to her in case of intestacy, or contingent interests, these are a qualified gift by law to the husband, on condition that he reduce them into possession during the coverture, for if he happen to die, in the lifetime of his wife, without reducing such property into possession, she and not his representative will be entitled to it. his disposing of it to another is the same as reducing it into his own possession." he further states that "the interest of the husband in, and his authority over, the personal estate of the wife, is, however, considerably modified by equity, in some particular circumstances. a settlement made upon the wife in contemplation of marriage, and in consideration of her fortune, will entitle the representatives of the husband, though he die before his wife, to the whole of her goods and chattels, whether reduced into possession or not during the coverture. ... a settlement made after marriage will entitle the representative of the husband to such as estate in preference to the wife. ... a court of equity will not interfere with the husband's right to receive the income during the coverture, though the wife resist the application." judicial procedure defendants may not petition to remove a case to the westminster courts after a jury is selected because such has resulted in unnecessary expense to plaintiffs and delay for defendants in which they suborn perjury by obtaining witnesses to perjure themselves. in 1619, by the writ of quo warranto, a government office or official could be made to explain by what right he performed certain acts. james i asserted an authority to determine the jurisdiction between the various courts. the court of high commission heard mostly matrimonial cases, but also moral offences both of clergy and laity, and simony, plurality, drunkenness, and other clerical irregularities. the star chamber court still was primarily directed against force and fraud and defended the common people from over-mighty lords and over-pliable justices of the peace, for instance by deterring enclosure. it also enforced monopolies. however, there was a growing tendency for king james, who sat on it, to abuse its power with high fines. a lord accused with foul language by a huntsman of following hounds of a chase too closely threatened to use his horse whip on the huntsman's master when the huntsman threatened to complain to his master. the lord was fined 10,000 pounds. james' council used torture to obtain information from accused felons about possible conspiracies against him. the ordinary administrative court of first instance is formed by the single justices of the peace, who issue orders regarding public safety, order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, and fire, and particularly begging and vagrancy as well as regulations of wages, servants, apprentices, and day laborers. for more important resolutions, the special sessions of the justices of the peace of a hundred for a court of intermediate instance and appointed overseers of the poor. all justices of the peace were present at the quarter sessions, which were held at least four times a year, and are primarily a court of appeal from penal sentences, but also make the county rate, appoint county treasurers and county prison and house of correction governors, regulate prices and wages, settle fees of county officials, grant licenses for powder mills, and register dissenting chapels. it heard appeals expressly allowed by statute. the central courts also heard appeals by writ of certiorari as to whether an administrative act was in accordance with existing law, whether the court is competent, and whether the administrative law has been rightly interpreted. this writ of certiorari ceased in the 1700s. justices of the peace who have the power to give restitution of possession to tenants of any freehold estate of their lands or tenements which have been forcibly entered and withheld, shall have like power for tenants for term of years, tenants by copy of court roll, guardians by knight service, tenant by elegit statute merchant and staple of lands or tenements. the justices of the peace were chosen by the crown, usually by the chancellor. the qualifications were residence in the county, suitability of moral character, religious uniformity, and the possession of lands or tenements with twenty pounds a year. they were almost exclusively country gentlemen, except in the towns. in the corporate towns, the mayor, bailiff, recorder, and senior aldermen were ex officio [by virtue of the office] justices of the peace. their main duty was to keep the peace. if a justice heard of a riot in the making, he could compel individuals at the place to give bonds of good-a-bearing and cause a proclamation to be made in the king's name for them to disperse. two justices or more had the authority to arrest the rioters and send a record of it to the assizes and to the privy council. if the riot had taken place before their arrival, they could make an inquiry by a jury and certify the results to the king and his council. the justices had men brought before them on many kinds of charges, on their own summons, or on initiative of the petty constable. they tried to draw these men into confession by questioning. after indictment, a person had the choice of a petty jury trial or paying a fine. the justices of the peace could insist upon presentment juries or surveys of offenses by local officers, but, without the institution of policemen, not many crimes were prosecuted because victims were unwilling or could not afford to initiate judicial action. their unwillingness was partly due to the severity of penalties, e.g. death for the theft of over 12s. and whippings and fines for misdemeanors. further, the offender was frequently a neighbor with whom one would have to live. mediation by the local constable often took place. when there an outbreak of lawlessness in an area, a commission might be set up especially for that area to enforce the law. assault cases were common in courts of assize and courts of quarter sessions. the quarter sessions were those of a number of justices of the peace held for a couple of days four times a year for the more important cases in the jurisdiction of the justices of the peace. assault was violence or threat of imminent violence. fines were graduated according to the means of the offender, who was usually bound over to keep the peace. most involved offenders and victims who were neighbors and included people of substantial standing in the village. also, a sizable minority were directed against local officers such as constables, bailiffs, or taxcollectors. three-fourths of all assize indictments and many quarter-sessions indictments were for various types of theft, including petty larceny, grand larceny, housebreaking, burglary, sheep stealing, and robbery. these offenses were mostly opportunistic rather than planned, except for london's underworld of professional thieves and the cutpurses of country markets and highway robbers on lonely roads. there were substantial peaks in theft in periods of harvest failure and industrial depression, especially by vagrants. but most of the poor never stole. the justices of the peace usually deferred to the learned justices of assize for cases of felony, murder, rape, highway robbery, and witchcraft. most homicides were the result of an impassioned argument leading to blows inflicted by nearby commonplace items picked up and used as weapons. only 18% of homicides were within the family. men were still declared outlaw if they failed to come to court after repeated summons. the lord keeper regularly advised the assize justices, before each circuit departure, to relieve the poor, supply the markets, maintain the roads (which were frequently impassable in winter for wagons or coaches), enforce church attendance, suppress superfluous and disorderly alehouses, and put down riots, robberies, and vagrancy, and in times of dearth, to suppress speculation in foodstuffs, prevent famine, and preserve order. in fact, the justices were most attentive to offenses which affected them as rate payers for the poor. these were offenses against cottaging laws (e.g. erection of cottages which lacked the statutory four acres of land), harboring of "inmates", disputes of settlement of paupers, bastardy, vagrancy, church nonattendance, and above all, disorderly alehouses. alehousing had been a wellestablished means of poor employment since the 1200s, so it was hard to enforce licensing laws. further, alehouses were the centers of social life for the common people; both women and men met their friends there. if an attorney or solicitor delays his client's suits to work his own gain or over charges his client, the client can recover his costs and treble damages and the attorney and solicitor shall be disbarred. none may be admitted to any court of the king but such as have been brought up in the same court or is otherwise well-practiced in soliciting of causes and has been found by their dealings to be skillful and honest. an attorney who allows another to use his name shall forfeit 400 shillings and be disbarred. offenders shall pay the charge of their own conveyance to gaol or the sum shall be levied by sale of their goods so that the king's subjects will no longer be burdened thereby. plaintiffs' costs shall be paid by the defendants where there is a judgment against the defendant in all actions in which the plaintiff is entitled to costs on judgment for him, to discourage frivolous and unjust suits. by 1616, chancery could order injunctions to stop activities. in slade's case of 1602, the court of the queen's bench held that assumpsit may be brought in place of the action of debt. so assumpsit supplants debt for recovering liquidated sums and is then called "indebitatus assumpsit". a statute of 1623 gave rights for adverse possession. it provided that all writs of formedon [right to land by gift of a tail] in descender, formedon in remainder, and formedon in reverter for any manors, lands, tenements, or hereditaments shall be sued within twenty years, for the quieting of men's estates and avoiding of suits. in default thereof they shall be excluded from such entry except children under 21 years, women-covert, non compos mentis, imprisoned or overseas shall have an additional 10 years after their disability ceases if the 20 years have expired. the limitation for bringing actions on the case (except slander), account, trespass, replevin, debt, detinue for goods and chattels and the action of trespass, quare clausum fregit [damages for unlawful entry on land], is within 6 years; for trespass of assault, battery, wounding, imprisonment is within 4 years; and for actions upon the case for words is within 2 years. the trial of sir walter ralegh in 1603 began a call for a right to confront and question one's accusers. before trial, privy counselors who in theory sat as impartial justices, cross-examined ralegh in prison. with a carefully selected jury present, the trial began with reading of the indictment, which ralegh had not yet seen. he was charged with treason in plotting with catholic spain to put arabella stuart on the throne. arabella was to write to spain promising peace, toleration of catholics in england, and direction by spain in her marriage choice. he pled not guilty and took no exception to any jurors, stating that he knew them all to be honest men. next, attorney general edward coke, his enemy and rival, and he engaged in a debate about who was right, with coke outright bullying him. coke then produced a signed confession by lord cobham that implicated him in the alleged conspiracy and accepting 10,000 crowns for his part. ralegh was given permission to speak. he said that cobham had retracted his confession. he ridiculed the idea that he would betray england to spain for gold after fighting against spain, including risking his life three times, and spending 4,000 pounds for the defeat of spain. he pointed to a treatise he had written to the king on the present state of spain and reasons against peace. then there was a discussion on the validity of cobham's confession. cecil gave an oration of ralegh. coke gave a speech. ralegh asked to have his accuser brought before him face to face. he cited law that two witnesses were necessary for a conviction for treason. chief justice popham replied that only one witness was necessary under common law, which applied to his case, and that the trial was properly by examination of the defendant. coke added that it would be improper to call cobham because he was a party. then coke surprised ralegh with a letter from cobham stating that ralegh had asked cobham to procure him an annual pension of 1500 pounds from spain for disclosing intelligence. ralegh acknowledged that a pension was offered, but denied that he had ever intended to accept it. he admitted that it was a fault not to inform authorities of this offer. the jury deliberated for fifteen minutes and returned with a verdict of guilty. the chief justice delivered the sentence for treason: drawing, hanging, disembowelling, beheading, and quartering. the whole trial was not so much to access guilt, but to show the general public that the person was guilty. church courts were revived after a period of disuse. they could annul an unconsummated or legally invalid marriage (e.g. consanguinity, impotence, a witnessed precontract to marry) and order judicial separations in case of adultery, cruelty, or apostasy. annuled marriages made a person's children illegitimate. an action at common law for "criminal conversation" [adultery] with the plaintiff's spouse or for assault and battery could result in an order for separation. but only a private statute of parliament could grant a divorce, which allowed remarrige. it was granted in only a few cases and only to the very wealthy. church officials spied upon people's conduct to draw them into their courts and gain more money from the profits of justice. in 1610, edward coke, chief justice of the court of common pleas, decided that the statute giving the royal college of physicians power to imprison and fine those practicing without a license was invalid and unenforceable because it gave the college half of each fine awarded, which was a conflict of interest with its role as an adjudicator. coke said that a maxim of the common law was that no man ought to be judge in his own cause. by this decision, he asserted a court supremacy over parliament with respect to the validity of statutes. he opined that the courts should not only be independent of the crown, but should act as arbiter of the constitution to decide all disputed questions. in his words, "when an act of parliament is against common right and reason, the common law will control it and adjudge such act to be void." justices still explained and in some degree interpreted legislative acts of parliament as they had since the 1500s, but their right to do so was coming into question and was slowly lost. female scolds were still dunked into water as punishment. only barristers, who were called to the bar after being in long residence in one of the inns of court, could practice before the king's court. attorneys and solicitors prepared cases for barristers and practiced before minor courts. the king appointed the justices, with the advice of the chancellor. james i often intimidated the justices to see things his way. the oath of a justice was: "well and and truly ye shall serve the king and his people. and ye shall take no fee or livery of none but the king, nor gift or reward of none that hath a do before you except it shall be meat or drink of small value, as long as the plea hangs before you. and ye shall do equal law and execution of right to all the king's subjects rich and poor, without regard to any person. ye shall counsel our sovereign lord the king in his need. and ye shall not delay any person of common right for the letters of the king or of any person or for any other cause ... so help you god." the courts of king's bench and common pleas, and the chancery all met simultaneously in westminster hall. throngs passed up and down the middle aisles between the courts, including booksellers, stationers, scriveners, and vendors of bread and hot meat. the hall was so cold that people kept on their coats and hats. the last court case concerning villeinage was in 1618. chapter 15 the times: 1625-1642 the entourage of charles i came to be called "cavaliers". they were named by their opponents for the spanish caballero who was a catholic who prosecuted protestants. their hair had long, curled, and flowing locks. they wore a broad-rimmed decorated hat. their fancy jackets and breeches were loose. boots were wide and folded over at the top. young men wore earrings and painted their faces. a lady wore her hair in ringlets on each side of her face. her dress was fitted at the waist, with a peaked bodice. it was low at the shoulders with a scoop neckline in front. she often wore much lace, especially at the neck down to the bust line. her outer dress and under-skirt that was revealed in front were full and made of satin and stiff silk or velvet. only hose of silk was worn at court. a majority of prosperous industrial towns and fee farmers, led sometimes by lords or old landed gentry were puritans. they dressed plainly and in somber colors such as black, grey, and buff, with no ornamentation except plain white collars and cuffs of linen rather than of lace. wool replaced silk and velvet. no jewelry was worn. the puritan women also wore long white aprons. the puritan men for a time had short-cut hair. the puritanparliamentarians were given the name "roundheads" after the cropheaded london apprentices whose rioting had marked every stage of the conflict between king and parliament. the puritan women smoothed their hair back into little knobs and covered their hair and head with a white covering. both puritan men and women wore broad-rimed hats and plain shoes. the ordinary country man wore a felt hat, broadcloth coat, woolen trousers, hand-knitted worsted stockings, and plain, strong shoes. nine-tenths of the people were protestant. religion was a favorite and serious topic of discussion, even among the illiterate. on the whole, they were more inclined to salvation by grace than to salvation by good works. popular reading included guides for good manners such as "the rich cabinet" by thomas gainsford, and "youths behavior" translated from the french by francis hawkins. it advised not to sit with one leg on the other, but with the feet even; not to spit on one's fingers; and not to sniffle in the sight of others. books for ladies such as "delights for ladies" by hugh platt told them how to adorn themselves, tables, closets, and distillatories with beauties, banquets, perfumes, and waters. it taught preserving and comfit making, cooking, and housewifery. gervase markham wrote advice for men in "hobsons horse-load of letters", which addressed serious negotiations, private businesses, amorous accomplishment, wanton merriment, and the defense of honor and reputation. "a helpe to discourse" by w.b. and e.p. primed a man to meet company with suggested questions and answers, epigrams, riddles, and jests. in henry peacham's "the compleat gentleman" (1622), the model cavalier is portrayed in terms of horsemanship, tilting, sports, choice of companions, reserved and dignified conduct, good scholarship, and responsibility. this popular book was a guide to university, where there was a seven year course of classroom lectures. it advised conversation with men of the soundest reputation for religion, life, and learning, but recreation with those of the same rank and quality. first place was to be given to religion, so that the foundation of all studies would be the service of god. following in importance were: speaking and writing in english or latin (grammar, syntax, and rhetoric), astronomy, astrology, geography (whose authorities were pliny, strabo, and the pagan writers of the first century), chorography, mathematics, including arithmetic and geometry, poetry (reading, writing, and criticizing), music, including part-music, drawing, limning, painting, art history, exercise (riding, running, leaping, tilting, throwing, wrestling, swimming, shooting, and falconry), logic and disputation if related to one's intended profession such as the law, philosophy (plato and aristotle), and some medicine and botany. the flemish johann baptista van helmont demonstrated that metals dissolved in acid can be recovered through chemical means and enunciated the doctrine that each thing in nature has its own specific organization. richard brathwaite's "the english gentleman" portrays the sombre puritan who accepts the gospel of work. he is a staid and serious businessman. "matrimonial honour" by daniel rogers opined that for success, a marriage must be godly, with the parties equally religious, worshipping together in private and in public. a hasty or worldly marriage would bring repentance. the spouses should agree, but keep to their spheres. children should not be spoiled. large households were more or less self-supporting and were managed by their ladies. work included ordering wool, hemp, and flax; making cloth and dying it; dairy work; brewing; malting; baking; preserving wines; extracting oils; distilling perfume; and putting on banquets. couches were coming into use in parlors. the king and his court entourage settled for most of the year in whitehall instead of travelling around the country. the king let the public into hyde park for recreation. the city of london and westminster were still separate, but a mass of hovels was springing up in between them. the water carrier was still active and the night transport of sewage necessary. in certain areas there lived in crowded houses, those wanted for minor offenses, small thefts, and debt. bailiffs did not dare venture into them because the inhabitants hid and defended each other unless the offense was a major one. the penalty for stealing even small sums was still death. indigo jones was the first architect of consequence. he had studied in italy and designed and built the banqueting house at whitehall in london in 1622. it had classical proportions and nice shaping and dressing in stone. he was now an arbiter of taste for the king charles and his queen and built many structures for them, including the queen's chapel at st. james palace and her bedroom in the queen's hose in greenwich. all over london and the country he and his pupils built many classical buildings, including houses, churches, stables, lodgings, out-buildings, staircases, galleries, watergates, and archways. they stood in stark contrast to the tudor buildings around them. in the 1632, jones started town-planning in london with covent garden fruit and vegetable market with terraced houses around a central piazza surrounded by open arcades with a tuscan church at one end. in 1634, a man from the suburb of hackney introduced a line of coaches rented at 1s. per hour. they soon became very popular. a large part of england was rebuilt as yeomen expanded their houses and others lower in rank replaced mud and wood hovels with brick and stone cottages. a separate kitchen appeared. the ground floors are boarded over to create bedrooms. permanent stairs replace ladders. glass appears in windows. glass and crockery replace wood and pewter, chairs replace benches. knives and forks become common. about 1640 began travel between towns by covered wagons called stage coaches. they carried passengers and goods and stopped at inns for stabling and repairs. work was begun in 1630 to make canals that would make waters run to the sea. barges on canals were the most efficient mode of transportation. a barge could carry 50 tons on a canal and only 30 on a river. a single horse could haul a wagon on iron rails with 8 tons, on a soft road with 8 tons, and on his back 1/8 of a ton. real wages, which had been falling, reached their low point and the gap between the poor and others widened. there were depressions from 1629-32 and from 1636 to about 1640, which called for royal proclamations for the relief and distress, especially among the poor. the book of orders, for the relief of distress in earlier reigns, was to be reissued. the assize of beer and bread maintaining quality, prices, weights, and measures, was to be duly kept. hoarding of foodstuffs was to be punished. fish days and lent were to be observed to maintain the fishers. abstaining from suppers on fridays and on the eves of feasts was ordered in all taverns and commended to private families. city corporations were to give up their usual feasts and half the charge given to the poor. foreign ships were not to be victualled for long voyages. the revised book of orders also covered the regulation of beggary, the binding of apprentices, and the general relief of the poor. all magistrates were to enforce the rules and raise special rates from all the parishes, the richer of these to help the poorer. a new trend of spring-sown crops led to better crop balance and reduced the risks of scarcity in a bad year. but the economy was still volatile. there were riots in london in 1640-1 from a complete breakdown in political consensus, the factions being the royalist city elite versus the middling and lesser merchants and craftsmen. in 1631, the clock makers broke away from the control of the blacksmiths. the gunmakers also broke away from the blacksmiths. the tinplate workers broke away from the ironmongers. "searching" for bad cloth became more difficult as the industry became more diversified. for instance, a new machine called a gigmill did the work of many hand finishers. in 1633, charles issued a commission for the reformation of the cloth industry with minute directions for the manufacture of cloth. but there were many disagreements over the details of manufacture and reform was difficult to enforce. by the 1630s, many parishes had a resident intellectual for the first time. the parish priests came from gentry, upper yeomanry, urban tradesmen and clerical families. they were educated and highly learned. they had libraries and were in touch with contemporary religious debates. they saw their role primarily as pastoral care. many wanted to improve the religious knowledge and moral conduct of their parishioners. puritan influence deepened as they forbade dancing, games, minstrels, and festivals. they punished superstitious conduct. they initiated prosecutions in church courts for sexual lapses and drunkenness. the church court had little coercive power and its punishments were restricted to penance or excommunication. many puritan sects espoused equality for women. by the 1640s women were preachers, e.g. in the baptist and anabaptist religions and, until 1660, prophetesses. these sects were mostly composed of the lower echelons of society. the poor people did not respond to sermons as did the well-to-do. nor were they as involved in church activity, attending church only for marriages, baptisms, and funerals. charles i not only believed in the divine right of kings and was authoritarian; he was the ultimate autocrat. he had an unalterable conviction that he was superior to other men, who were insignificant and privileged to revolve around him. he issued directives to reverse jury verdicts. parliamentarians oliver cromwell and other educated men opposed this view. the commons voted not to grant charles the usual custom-dues for life, making it instead renewable each year, conditioned on the king's behavior. charles dissolved parliament before this passed. he continued to take tonnage and poundage. he wanted money for war so he imposed many taxes, but without the consent of parliament. they included many of which had fallen into disuse. he imposed a compulsory "loan" on private individuals, which the courts held was illegal, and imprisoned, those who refused. bail was denied to these men. simpler people who refused were threatened with impressment into the navy, which included being landed on shore to fight as marines and soldiers. they sought to revive the old writ of habeas corpus [produce the body] to get released, but to no avail. the old writ had been just to bring to court those persons needed for proceedings, but coke in 1614 had cited the writ with a new meaning "to have the body together with the cause of detention". charles billeted unpaid and unruly soldiers in private homes, which they plundered. it was customary to quarter them in inns and public houses at royal expense. martial law was declared and soldiers were executed. but the citizens did not want martial law either. the magna carta got attention as a protector of basic liberties. both attorneys and laymen read "the pastyme of people" written by john rastell in 1529, which described the history of the magna carta from 1215 to 1225. also read was the "great abridgment" of the english law written by rastell in 1527, and coke's volume of his institutes which dealt with the magna carta, which the crown took to prevent being published until 1642, when parliament allowed it. broad-scale pamphleteering turned england into a school of political discussion. oxford university favored the established church and cambridge university was puritan. the estates of the members of the house of commons were three times the extent of the members' of the house of lords. bishops' estates had diminished considerably because of secularization. the members of the house of commons were elected by the people. for these reasons, the house of commons asserted a preeminence to the house of lords. the house of commons drew up a petition of right in 1627, which expanded upon the principles of magna carta and sought to fix definite bounds between royal power and the power of the law. it protested the loans compelled under pain of imprisonment and stated that no tax or the like should be exacted without the common consent of parliament. it quoted previous law that "...no freeman may be taken or imprisoned, or be disseised of his freeholds or liberties, or his free customs, or be outlawed or exiled; or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land" and that "...no man of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned nor disinherited, nor put to death without being brought to answer by due process of law". it continued that "... divers of your subjects have of late been imprisoned without any cause showed; and when for their deliverance they were brought before your justices by your majesty's writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your majesty's special command, signified by the lords of your privy council, and yet were returned back to several prisons, without being charged with anything to which they might make answer according to the law." it also protested the billeting of soldiers in private houses and martial law trying soldiers and sailors. if these terms were agreed to by the king, he was to be given a good sum of money. since he needed the money, he yielded. he expected tonnage and poundage for the navy for life, as was the custom. but he got it only for one year, to be renewable yearly. the king agreed to the petition, quietly putting his narrow interpretation on it, and it was put into the statute book. in 1629 parliament distinguished between treason to the king and treason to the commonwealth. the chief justice held in 1638 that acts of parliament to take away the king's royal power in the defense of his kingdom were void; the king may command his subjects, their persons, their goods, and their money and acts of parliament make no difference. but the people refused to pay these taxes. charles thought of more ways to obtain money and disregarded his agreement to the petition of right. without the consent of parliament, he extended ship money to all the kingdom instead of just the ports. it was used to outfit ships for the protection of the coasts. hampden refused to pay it on principle and the courts ruled against him in the case of king v. john hampden and he was sent to prison. when distraints were tried, the common people used violence to prevent them. the bailiffs were pelted with rocks when they came to distrain. one man used his pitchfork to take back his steer being taken by the bailiff. if distraint were successful, people would refuse to buy the distrained property of their neighbors. charles revived the right of the crown to force knighthood on the landed gentry for a fee. charles sold monopolies in such goods as soap, leather, salt, wine, coal, and linen rags although they had been abolished in the last parliament of james. this made employment uncertain for workers and prices high for the public, and put masters in danger of loss of capital. fines were levied on people for the redress of defects in their title deeds. crown forest boundaries were arbitrarily extended and landowners near crown forests were heavily fined for their encroachments on them. money was extorted from london by an illegal proclamation by which every house had to pay three years' rental to the crown to save itself from demolition. but what incensed the people more than the money issue were the changes in the established church. high churchmen, called ritualists, enforced ceremonies offensive to puritan feeling in every parish. the centrally placed communion tables were to be placed at the east end within railings and called "altars", or "mercy seats" as if for mass. they were to be ornamented with crucifixes, images, conceits, books, candles and rich tapestries. bowing was to be done when approaching them. clergymen were to be called "priests" and their authority treated as divine. worship was to be done in prescribed forms and ritual with pomp and ceremony, including kneeling for communion. it was to be done in accordance with the romish breviars, rituals, and mass-books. rings were to be used in marriages and crosses used in baptisms. churches, fonts, tables, pulpits, chalices and the like were to be consecrated, thereby putting holiness in them. churches that did not do this but used unconsecrated or "polluted" articles were closed by interdiction. regard was to be had with regard to days, postures, meats, and vestments. the clergy was to wear supplices [white linen vestments flowing to the foot with lawn sleeves] and embroidered copes [vestment over the head]. a bishop wore a fourcornered cap, cope and surplice with lawn-sleeves, tippet (long, black scarf), hood, and canonical coat. churchwardens were to take oaths to inform against any who disobeyed. the law still required that all attend sunday sermons. but parishes had some control over who was their preacher, even though a minister could be put upon a parish by the bishops without the consent of the patron or people. by increasing the meager pay of a parish clergyman, they could chose one with a compatible theology or employ a lecturer from outside. the ritualists scolded clergymen for "gospel preaching" and suppressed puritan preaching in public meetings. preaching or printing matter concerning the controversy of free will versus predestination was forbidden. geneva bibles, which were popular among laymen, were prohibited from being imported. many were excommunicated for sitting instead of kneeling at communion. the clergy prohibited marriage if they liked by withholding their license, and they licensed marriages without banns. the ritualists encouraged certain sports to be played after church on sunday. the puritans protested vehemently to this because they wanted to strictly observe the sabbath. the puritans saw the high churchmen as wanting to return to the doctrine and customs they thought to be papist. the ritualists were absolutists in their political views and accepted the king's intervention in church matters. the ecclesiastical court of high commission enforced the edicts of the church, excommunicating those who did not conform and expelling clergymen who, for instance, did not bow at the name of jesus or wear the surplice. it was used against the puritans and imposed high fines and imprisonment for religious eccentricity and puritan preaching. charles supported the established church in this endeavor because it agreed that he had a divine right to rule. the universities and high churchmen were beginning to adopt the doctrine of free will over predestination. parliamentarian and puritan oliver cromwell and others feared this presaged a return to justification by works and the popish faith. in parliament, he spoke out against the tyranny of the bishops, whose offices he wanted abolished, and the elaborateness of church services. to avoid persecution, many puritans emigrated to virginia and new england. they were led by magistrates, country gentlemen, prominent businessmen, attorneys, and other professionals. in 1629, the massachusetts bay colony was chartered at the instigation of john winthrop as a puritan refuge. its leaders led a migration of puritans organized to include five each of armorers, bakers, blacksmiths, carpenters, shoemakers, merchants; three each of clothiers, chandlers, coopers, military officers, physicians, and tailors; two each of fishermen, herdsmen, and masons; on tanner, and one weaver. the fare was five pounds and an applicant was interviewed to make sure he was a puritan. he got 50 acres, or more for a larger family. but if he paid 50 pounds into the common stock he received 200 acres of land, plus 50 more for each dependent. maryland was founded in 1632 as a haven for catholics, but its charter precluded a government-established religion. it was granted to lord baltimore to hold in free socage and was named after king james ii's queen, who was overtly catholic. catholics in england could practice their religion only in their homes and could not carry arms. as hostility grew, censorship of books and plays accelerated and the number of authorized printers was reduced in 1637 by decree of the star chamber. in 1640s effective government control of the press collapsed. then there were many pamphlets and newspapers with all variety of interpretation of the bible and all sorts of political opinion, such as on taxation, law and the liberties of the subject, religion, land and trade, and authority and property. twenty-two pamphlets were published in 1640 and 1,996 in 1642. in 1640 the canons of the church included a requirement for parsons to exclaim divine right of kings every year. the commons soon resolved that this was contrary to the fundamental laws and liberties of the realm. the short parliament of 1640 was dissolved soon because the commons demanded redress of its grievances. the long parliament of 1640-1653 requested by the house of lords was agreed to by charles because he still wanted money. in election of members to the long parliament, voters wanted to know where contenders stood on certain political issues. in this parliament, the commons ceased to agree on all issues and started to rely on majority rule. the house of commons was led by john pym, a middle class landholder with extensive commercial interests. the commons treated the king's refusal to act with them as a relinquishment of his power to parliament. when it met at the long parliament, pym expressed the grievances of the king's actions against the privileges of parliament, against religion, and against the liberties of the subjects. specifically, he decried the disregard of free speech and of freedom from prosecution afterward, and the arbitrary dissolution of parliament. secondly, he alleged popery had been encouraged and the ecclesiastical jurisdiction enlarged. thirdly, he protested the patent monopolies given to favorites to the detriment of the buying public, the imposition of ship money levies beyond the need of national defense and without the consent of parliament, the revival of the feudal practice of imposing a fine for refusal to accept a knighthood with its attendant obligations, the enlargement of the king's forests and driving out from hence tenants with lucrative holdings, extra judicial declarations of justices without hearing of counsel or argument in many criminal matters, and the abuses of the prerogative courts in defending monopolies. parliament's assertion into religious matters and foreign affairs was unprecedented, those areas having been exclusively in the power of the king. the long parliament begun in 1640 removed many of the king's ministers and forbade clergy from sitting in parliament or exercising any temporal authority. it passed measures which were not agreed to by the king. it undid the lawless acts of the king and the court decision in the case of king v. hampden. ship money was declared illegal. the new concept that the present parliament should not be dissolved but by its own consent was adopted. the star chamber and court of high commission were abolished. the oath ex officio, an oath to answer all questions, was originally meant for facts at issue, but had been extended by these courts to opinions, beliefs, and religion and had led to abuses. the star chamber had been the only court which punished infractions of the kings' edicts, so now his proclamations were unenforceable. protection against self-incrimination was given by the provision that no person be forced "to confess or accuse him or herself of crime, offense, delinquency, or misdemeanor, or any neglect... or thing whereby, or by reason whereof, he or she shall or may be liable or exposed to any censure, pain, penalty, or punishment whatsoever, as had been the practice in the star chamber and the court of high commission. these measures were also adopted: no one may be compelled to take knighthood nor undergo any fine for not so doing. the forest boundaries are returned to their former place. all subjects may now import gunpowder; they may also make and sell gunpowder and import saltpeter. the root and branch petition of 1640 complained about pressure on ministers by bishops on threat of dismissal not to preach about predestination, free grace, perseverance, original sin remaining after baptism, the sabbath, doctrine against universal grace, election for faith foreseen, free-will against anti-christ, nonresidents, or human inventions in god's worship. it also complained about the great increase of idle, lewd, and dissolute, ignorant and erroneous men in the ministry who wanted only to wear a canonical coat, a surplice, and a hood, bow at the name of jesus, and be zealous of superstitious ceremonies. it also complained about the swarming of lascivious, idle, and unprofitable books, pamphlets, play-books, and ballads, such as ovid's "fits of love", "the parliament of women", barn's "poems", and parker's "ballads". further it opposed the restraint of reprinting books formerly licensed without relicensing. it protested the growth of popery and increase of priests and jesuits, the strict observance of saints' days whereby large fines were imposed on people working on them, the increase of whoredoms and adulteries because of the bishops' corrupt administration of justice and taking of bribes, and the practice of excommunicating for trivial matters such as working on a holy day or not paying a fee. it further protested the fining and imprisoning of many people; breaking up men's houses and studies; taking away men's books, letters, and writings; seizing upon their estates; removing them from their callings; and separating them from their wives, to the utter infringement of the laws and of people's liberties. it complained that these practices caused many clothiers, merchants, and others to flee to holland, thus undermining the wool industry. it finally complained of the multitude of monopolies and patents, large increase of customs, and ship-money. many londoners signed this petition. the house of commons decided to forbid bowing at the name of jesus. when the house of lords disagreed with this, the house of commons claimed that it represented all the people and didn't need the concurrence of the house of lords. the house of commons ordered that all communion tables be removed from the east end of churches, that the railings be taken away, and all candles and basins be removed from it. further, all crucifixes, images of the virgin mary, and pictures of any of the trinity were to be demolished, which was done to even those in markets and streets. further, all bowing at the name of jesus or toward the east end of the church or toward the communion table was forbidden. all dancing or other sports on sunday was forbidden. enforcement was to be done by justices of the peace and mayors. but these orders never became statutes. enforcement of the law for not coming to church was not now regularly enforced, so catholics had a respite. rebellion of irish catholics against england and english protestants broke out in ireland in 1641. parliament didn't trust the king with an army that he could use against themselves so it passed the following two measures expanding the navy and calling out the militia and naming certain persons to be lieutenants of each county. the admiral shall impress as many seamen as necessary for the defense of the realm. this includes mariners, sailors, watermen, ship carpenters, but no one over the age of 50 or masters or masters' mates. if one hides, he shall be imprisoned for three months without bail. justices of the peace shall impress as many soldiers as the king may order for war in ireland. this is despite the right of a citizen to be free from being compelled to go out of his county to be a soldier because the danger from ireland is imminent. excluded are clergymen, scholars, students, those rated at a subsidy of land of three pounds or goods of five pounds, esquires or above, the sons of such or their widows, those under eighteen or over sixty years of age, mariners, seamen, and fishermen. the penalty for disobeying is imprisonment, without bail or misprise, and a fine of ten pounds. if an offender can't pay the fine, he shall be imprisoned a year more, without bail or misprise. the right to call out the county militia had been a prerogative of the crown, so the king issued a proclamation ordering the soldiers to ignore this order and obey him. so parliament declared this proclamation void. the king accused five leaders of parliament, including pym, of trying to subvert the government of the kingdom, to deprive the king of his regal power, to alienate the affections of the people toward their king, forcing the parliament to their ends by foul aspersions, and inviting the scots to invade england. in 1642, the king entered parliament with 300 soldiers to arrest these five. they had flown, but parliament was shocked that the king had threatened the liberties of parliament with military force. the citizens of london, in their fear of popery, rose in arms against the king, who left the city. both sides raised big armies. the goal of the parliamentarians was to capture the king alive and force him to concessions. when the parliamentarians took oxford in 1648, they purged its faculty of royalists. the law from 1625 to 1627 these statutes were passed: no one shall engage in sports or any pastimes outside his own parish or bearbaiting, bullbaiting, interludes, plays or other unlawful pastimes inside his parish on sundays because such has led to quarrels and bloodshed and nonattendance at church. the fine is 3s.4d. or if the offender does not have the money or goods to sell to pay, he shall be set in the public stocks for three hours. no carrier with any horse or wagon or cart or drover with cattle may travel on sunday or forfeit 20s. no butcher may kill or sell any victual on sunday or forfeit 6s.8d. every innkeeper, alehousekeeper, and other victualler permitting a patron who is not an inhabitant of the area to become drunk shall forfeit 5s. or be place in the stocks for six hours. offenders convicted a second time shall be bound by two sureties to the sum of 200s. as of 1627, a parent sending a child out of the country to go to a catholic school were to forfeit 100 pounds, one half to the informer and one half to the king. the petition of right herebefore described was passed as a statute in 1627. judicial procedure the star chamber decided cases as diverse as a case of subordination of witnesses, cases of counterfeiters of farthing tokens, and cases of apothecaries compounding ill medicines. it tried to keep down the prices of foodstuffs for the benefit of the poor; it repressed extortion and false accusations, and disbarred an attorney for sharp practices; it punished defamation, fraud, riots, forgery of wills; it forbade duels. a special virtue of its position was that it could handle without fear matters in which men of social or local influence might intimidate or overawe juries or even country justices. it punished a lord who caused records to be forged, unlawfully entered lands, and seized tithes. it disciplined a nobleman for drawing a sword on a lord hunting hare. in one of its cases, sir edward bullock, a knight wanting to enclose a common of a thousand acres threatened his neighbor blackhall when he would not sell his lands and rights. the knight hired a man to break down the hedges and open a gate that had been staked up, so that his neighbor's cattle would stray. he sued his neighbor three times for trespass, lost his cases, and threatened revenge on all the witnesses who testified against him. he had the house of one pulled down. the pregnant wife and a naked child were turned out and had to lie in the streets because no one dared to take them in, even when a justice so directed. the witness, his wife, and family took refuge in an unheated outbuilding in the winter. he and his wife and one child died there. the knight had another witness cudgeled so that she was black and blue from the waist up, and could not put on her clothes for a month. the knight threatened to set fire to the house of another witness, and sent his men to pull him out of doors and keep him prisoner for some hours. the star chamber imprisoned the knight and his men. the knight was fined 1,000 pounds and the men 50 pounds each. the knight also had to pay one witness 100 pounds in reparation to the surviving children of the family whose house had been pulled down. but the power of the star chamber was abused by king charles i. for instance, one lord was accused by another of calling him a base lord. the evidence was paltry. but he was fined eight thousand pounds, one-half going to the king. a lord who was accused of converting agricultural land to pasture was fined four thousand pounds. the lord was fined ten thousand pounds. a person who exported fuller's earth, contrary to the king's proclamation, was pilloried and fined two thousand pounds. a man who defaced a stained-glass window in a church was fined 500 pounds and ordered to pay for a plain glass replacement. a man who became sheriff of a county and had taken the oath which bound him to remain in the county was elected to parliament and stood in opposition to the king on many matters. he was imprisoned for many years until he made a humble submission and had to pay a heavy fine. a london importer who was alleged to have said "that the merchants are in no part of the world so screwed and wrung as in england; that in turkey they have more encouragement" was fined 2,000 pounds for seditious and slanderous words against his majesty's happy government. a scottish minister circulated a book appealing to the parliament to turn out the bishops and to resist its own dissolution by the king. in it he called the bishops men of blood, anti-christian, satanical, ravens, and magpies, preying on the state. he was against kneeling at the sacrament and denounced the queen for her religion. he blamed the state for the death of citizens of a certain town by famine. for as he did "scandalize his majesties sacred person, his religious, wise, and just government, the person of his royal consort the queen, the persons of the lords and peers of this realm, especially the reverend bishops", he was fined 10,000 pounds, was to be unfrocked (which was done by the court of high commission), and was whipped, pilloried, one ear nailed to the pillory and cut off, his cheek branded, and his nose slit. then he was imprisoned for life, but only served ten years, being released by a statute of the long parliament. a puritan writer pyrnne wrote a book that included a condemnation of masks and plays, and all who took part, and all who looked on as sinful, pernicious, and unlawful. it opined that nero had attended plays and deserved to be murdered. since charles had attended plays and the queen had taken part in a mask, it was inferred that pyrnne meant them harm. his indictment alleged that "he hath presumed to cast aspersions upon the king, the queen, and the commonwealth, and endeavored to infuse an opinion onto the people that it is lawful to lay violent hands upon princes that are either actors, favorers, or spectators of stage plays". the justices saw in the book an attempt to undermine authority. the chief justice called the book a most wicked, infamous, scandalous, and seditious libel. pyrnne was sentenced to be degraded by oxford and disbarred by lincoln's inn, to be fined 5,000 pounds, to be pilloried and to have his ears cut off, and then to be imprisoned for life. three men who wrote attacks on the bishops and ecclesiastical courts, such as alleging that the bishops suppression of fasts and preaching had brought the pestilence upon the people and that the bishops had dishonored god and exercised papal jurisdiction in their own names, were each sentenced to 5,000 fine, the pillory, where their ears were cut off, and to life imprisonment. one, who had been convicted for libel before, was branded on both cheeks: "s.l." for seditious libeller. others printed similar material. in vain the star chamber limited the number of london printers to twenty, and made licensing stricter. these prisoners were set free by the long parliament. charles i intimidated justices to obey him in decision-making even more than james i. charles i so abused the power of the star chamber court that it was abolished by the long parliament and with it, the involvement of the king's council in civil and criminal cases. the regular church courts punished people for heresy, nonattendance at church, sexual immorality, working on the sabbath or a holy day, non-payment of tithes, and lending money at interest. the special ecclesiastical court, the court of high commission, was composed of clerics appointed by the king and decided cases of marriage annulment, alimony, adultery, married couples living separately, cruelty of husbands to wives, and habitual drunkenness. but it also took on cases of schismatics and extended its power over them to include staid and solid puritans, who uniformly believed that salvation was the only worthy earthly aim. acting on information attained through secret channels or from visitations, it would summon the accused, who was required to give, under oath, "full, true, and perfect" answers to broad and undetailed charges made by secret informants. refusal to take the oath resulted in commitment for contempt of court. if he denied the charges and fled, the court could hold the hearing without him. many fled out of the country or went into hiding in it. if the accused went to the hearing, he could not take an attorney with him. most of the issues involved clergy refusing to use the litany, to make the sign of the cross in baptism, to wear the surplice, or to publish the book of sports, and insistence on extempore prayer and preaching. other issues were clergy who from the pulpit inveighed against ship-money and unjust taxes, and spoke rudely against the bishops and tyrannical princes. one case is that of samuel ward, the town preacher of a large town, heard in 1635. he neglected bowing or kneeling on coming to his seat in church and preached against the book of sports. he did not read the set prayers from the official book, but said prayers he had himself conceived. to this he replied that a parrot could be taught to repeat forms and an ape to imitate gestures. but his most serious offenses had to do with his utterances from the pulpit derogatory to the tenets and discipline of the church. he was accused of saying that he believed that congregations still had the right of election of all officers, including ministers. also, he allegedly said that in preaching on the christmas holidays he told his people "that in the following days they might do their ordinary business, intending to cross that vulgar superstitious belief, that whoever works on any of those twelve days shall be lousy". he allegedly warned his people to beware of a relapse into popery. ward was convicted of depraving the liturgy, tending toward schism, frightening the people, and encouraging the overthrow of all manner of government. he was removed from his position, deprived of his ministerial function, suspended and silenced during the king's pleasure. he was ordered to make submission and recantation both in court and in his church and to give bond for 200 pounds. when he did not do this, he was sent to prison and lay there nearly four years, and died a few months later. in another case, a mrs. traske was imprisoned for at least eleven years for keeping saturday as her sabbath. many people were excommunicated and books censored for essentially political reasons. in 1637, the king proclaimed that the common law courts could not intervene in ecclesiastical courts. the court of high commission was abolished by the long parliament. justices of the peace had general and quarter sessions, the latter of which were held four times a year with all justices of the peace attending. it was primarily a court of appeal from penal sentences. but it was also an administrative body to determine taxes and make appointments of officials and grant licenses for businesses. in 1638, in distributing a deceased person's estate, the chancery court upheld a trust for an heiress which would not become her husband's property. at the request of parliament, the king had all justices serve during their good behavior instead of serving at the king's will, which had been the practice for ages. this increased the independence of the judiciary. the rack was used for the last time in 1640 before the long parliament met. it was used to torture a rioter before hanging. men were still pressed to death for failure to plead, pickpockets still executed for the first offence, and husband murderers still burned. chapter 16 the times: 1642-1660 for four years, there was civil war between the king, backed generally by the upper class, the established church, and most of the gentry, against the parliamentarians, backed generally by middle class yeomen, town dwellers, some of the gentry, most of the great corporations, the city of london, the ports, the seamen, and the navy. oxford university was royalist, and cambridge university was puritan in sympathy. archery was not used, having become just sport by 1633. flint-lock pistols, which relied on flint striking steel to ignite the powder, as well as swords were used by horsemen in the civil war. footmen were musketeers using a match lock with a cord boiled in vinegar as the match and dressed in leather doublets and an iron-pot headpiece, or pikemen with long wooden poles with spearheads of iron or steel and short swords, and dressed in armor. this was the last time armor was used. the parliamentarians wore orange scarves to distinguish themselves from their enemy. cromwell, who had a natural aptitude for military matters, selected for his troops, puritan zealots with a puritan code of behavior which included no drinking or swearing. he selected horsemen based on ability rather than social class. he was regarded as one of the leaders of the independents, who wanted total abolition of the monarchy and of the aristocracy. when made a leader of the new model army, cromwell dressed all his foot men in red with only the facings being regimental colors. the new model army had been assembled because there had been disagreement about policy among the members of parliament who held commissions. almost all members gave up their commissions. for their continued support, many wives and also prostitutes put on men's clothing and followed the troops. they nursed the wounded. those many wives who stayed at home pleaded and answered in court; petitioned to the house of commons, e.g. for release of debtors from prison, high taxes, lack of work, and arbitrary government; and made other public appearances. puritan and royalist newspapers printed the news at least once weekly. poet john milton pled for civil and religious freedom, freedom of social life, and freedom of the press. he stated: "give me the liberty to know, to utter, and to argue freely, according to conscience, above all liberties." the mayor and citizens of london were given authority in 1642 to fortify all highways leading to the city and levy a tax on inhabitants for this purpose. when london was deprived of coal during the war, trees and flowers again flourished there. officers and seamen in navy ships were authorized in 1642 to take one-third of all prize goods captured, the other two-thirds going to the state. parliament approved certain persons to set forth ships at their own expense to defend the realm in 1643. they were allowed to keep any ships, goods, ammunition, or moneys they seized. saltpeter men were appointed by parliament in 1643 and later times to search and dig for saltpeter in pigeon houses, stables, and outhouses, but not dwelling, shops, or milkhouses. they had to repair any damage done to the contentment of the owners. complaints were made to parliament that there were scandalous and ill-affected fomenters of the civil war and disobeyers of the ordinaries of parliament and deserters of their ordinary places of residence. these complaints were made by members of the university of cambridge, students, clergy in surrounding counties, and schoolmasters. so a committee was established in 1643 to investigate and sequester their lands and goods, excepting onefifth of the estate for the wife and children. when charles was captured in 1646, the episcopacy of the bishops was abolished. when parliament was about to reinstate charles as king with weakened powers and establish a presbyterian state church, the soldiers, who were religious independents and who still had not been fully paid (the infantry pay was 18 weeks in arrears and the cavalry 43 weeks) despite plans to disband them, spontaneously took the king by force. they demanded liberty of conscience to practice their own religion and their pay. cromwell sided with the army and then became leader of the house of commons. charles dissembled in his negotiations with the army generals. he felt freed from his promises as soon as the pressure was removed. the army could not forgive charles' duplicity and deceitfulness and insisted upon his death as the only way to bring peace. cromwell gave up hope on negotiations with charles when he intercepted a letter by charles to his queen decreeing the final doom of the army adherents in favor of the scottish presbyterians. during protracted negotiations over months between the army and parliament over a new constitution, a renewed support for the king, which was inspired by him, necessitated a second civil war to put down this revolt and subdue its scot supporters. eventually the army took control of parliament by force, only allowing the few members who agreed with them on the trial of the king into parliamentary meetings. so charles was tried in 1649, found guilty of "an unlimited and tyrannical power to rule according to his will, and to overthrow the rights and liberties of the people ... which by the fundamental constitutions of this kingdom were reserved on the peoples' behalf in the right and power of frequent and successive parliaments or national meetings in council", and maintaining a war against his subjects, which amounted to treason. to prevent his adherents from trying to reinstate him, he was condemned to death and beheaded in january 1649. parishes had to give maintenance to maimed soldiers and provision for the livelihood to the wives and children of killed soldiers. masters of apprentices who became soldiers had to take them back as apprentices without loss for their absence in defense of the commonwealth. masters who received considerable loss by the absence of their apprentices received reasonable satisfaction from the public stock. to pay for the civil war, an assessment tax on the yearly value of rents, annuities, and offices was often levied. the main burden of this tax fell on the gentry rather than the merchants and smaller men of property, as previous taxes had. an excise tax, a tax on consumption, was begun on ale and beer and then extended to meat, salt, starch, soap, and paper. it was gradually extended to many goods. the excise taxes were paid, as was the customs tax, by manufacturers on goods made in england and by foreign manufacturers on goods at the ports. from 1640-60, royalists were purged from oxford and a group of baconians moved into the university behind parliamentary armies. at the two universities, books were no longer chained to the bookcases. the universities were freed from taxation. after the civil wars, cromwell led the country. he was a military, political, and religious leader. he had become a puritan zealot after a youth of gambling, drinking, debauchery, and rioting. he believed that military success was a reflection of divine favor and he regarded himself as one the few elect preordained for salvation. those in power in the new commonwealth tended to explain their regime in terms of popular consent, and the takeover from charles i as due to his breaking of a contract with the people. most people dressed in puritan fashion. a puritan's favorite readings were the old testament, epistles of st. paul, and switzerland's john calvin. wealth and prosperity steadily increased in spite of the civil wars. during cromwell's tenure, there was a marked revival of economic prosperity. by the mid-1600s, landlords had been able to shorten their leases so that a lease of twenty-one years was the predominant form of landholding. patent protection was given in 1642 to the inventors of a device for salvaging ships' goods and cannons from the seas for seven years. with it they could convert to their own use one half and items retrieved, the other half going to the navy and parliament. patent protection was given in 1650 to george manby on his new invention for boiling liquors and making salt with less coal and wood and iron, lead, and copper for fourteen years. patent protection was given in 1651 to jeromy buck for melting iron, lead, tin, copper, brass, and other metals with coal without burning charcoal, for fourteen years. dutchman stevinus showed that the pressure at the bottom of a column of liquid is proportional to the height of the column, and not to its bulk, about 1634. he also studied oblique forces, and the balancing of such that could bring about "stable equilibrium". evangelista torricelli, an italian student of galileo, discovered in 1643 that any fluid will be supported at a definite height, according to its relative weight, as compared with air. he realized that a mercury column, 30 inches in height, in a long glass tube inverted in a cup of mercury, was being supported by air pressure exerted on the mercury in the cup. when he observed that this height changed with the weather, he had invented the mercury barometer. his creation of a vacuum, above the mercury in the tube, astonished philosophers, who had thought that nature abhored a vacuum and would prevent it. blaise pascal, a french mathematician, physicist, and religious philosopher, constructed a calculator in 1644 to assist his father, who was involved in local administration, in tax computations. around 1646, he proved his law that pressure applied to a confined liquid is transmitted undiminished through the liquid in all directions regardless of the area to which the pressure is applied. around 1653, he laid the foundations for the theory of probabilities, including the creation of "pascal's triangle" of coefficients of (a=b) raised to the nth power. jean ray from france concluded from his experiments that every piece of material has a given weight, including air and fire. the merchant adventurers were incorporated again in 1643 to have a monopoly. it was required to admit into membership for 100 pounds anyone free of london and bred as a merchant, and for 50 pounds any non-inhabitant of london. the penalty for trading for one who was not free of the corporation was forfeiture of his goods. in 1648, the house of commons abolished the monarchy and in 1649 the house of lords. also in 1649 it declared that england "should thenceforth be governed as a commonwealth and free state by the supreme authority of this nation, the representatives of the people in parliament." it made a new constitution. john milton defended the commonwealth as superior to the monarchy because it could not deteriorate into tyranny in his books: "first defense of the people of england" in 1651, and "second defense" in 1654. he lauded cromwell as great in war and great in peace, and exemplifying the principle that "nature appoints that wise men should govern fools". thomas hobbes, the son of a clergyman, and tutor to students, wrote "leviathan" in 1651 on his theory of sovereignty. hobbes thought that states are formed as the only alternative to anarchy, barbarism, and war, so that supremacy and unity of a sovereign power is essential to a civilized life and the protection of the citizenry. a sovereign may be a man or body of men as long as his or its authority is generally recognized. there must be a social contract among the citizenry to obey a certain sovereign. to avoid religious conflict, there must be a complete subordination of the church to the state and the religion of a state must be dependent upon its secular sovereign. hobbes thought that knowledge of the world came through experience and not reason alone. only matter exists, and everything that happens can be predicted in accordance with exact, scientific laws. he regarded human societies as purely mechanical systems set in motion by human desires. he saw self interest as the mainspring of moral law. conflicting self interests transformed into a lawful system of agreements. hobbes opined that all power really originated in the people and that the end of all power was for the people's good. on the other hand, james harrington, who wrote "the commonwealth of oceana" in 1656, opined that a stable society depended on a direct relationship between the distribution of property and political power; no one with property worth more than 2,000 pounds should be allowed to acquire more and property should be divided among children. a senate of mature property owners were to make and debate the laws while an assembly elected by universal suffrage was to vote on them because "a popular assembly without a senate cannot be wise and a senate without a popular assembly will not be honest". a third of the senate would turn over every year. john milton defended the execution of the king in "the tenure of kings and magistrates" in which he maintained that the people may "as often as they shall judge it for the best either to choose him or reject him or depose him, though no tyrant, merely by the liberty and right of freeborn men to be governed as seems to the best". he also wrote in favor of liberty of the press. ordinary speech found its way into prose writing. lands of more than 700 royalists, including church lands, were confiscated and sold or leased by county committees. many royalists put their lands into trusts or turned them over to relatives or sold them outright to prevent confiscation. it was an upheaval comparable to the dissolution of the monasteries. also, specified papists who had taken up arms against the realm lost their lands and goods and money and rents and two-thirds of their personal estates. but allowance was made for the maintenance of their wives and children. the book of common prayer was abolished because of its burdensome ceremonies. it was replaced by a directory for public worship. according to this, the sunday service was to include reading of the scriptures, prayer, and a sermon, ordinarily on some text of scripture which would be explained with reasons therefore and applied to peoples' lives so they could see it they had sinned or not. the ending of episcopal patronage gave some parishes the right to elect their own ministers. all festivals and holy days were abolished, e.g. christmas, easter, whitsuntide. instead, scholars, apprentices, and servants were to have recreation and stores were to be closed every second tuesday of the month. the usual merry-making, music, dancing, and sports after the sunday service were discontinued. a day for fasting: the last wednesday of every month, was declared by statute. this day was to be "kept with the more solemn humiliation, because it may call to remembrance our sins, and the sins of our forefathers, who have turned this feast, pretending the memory of christ into an extreme forgetfulness of him, by giving liberty to carnal and sensual delights, being contrary to the life which christ himself led here upon earth, ...". this statute lasted for only five years from 1644 because observance of it was not consistent throughout the country. educational opportunities such as in grammar schools were more widespread and stronger than ever before or since until the 1800s. about 78% of men in london were literate, and 30% of men nationwide. about half the women in london were literate by 1700. in 1645, the marshalls of the admiralty and five major ports were ordered to search all ships for stolen children since it had been a problem in london. the elderships of the church were given power in 1645 to suspend from the sacrament of the lord's supper all ignorant and scandalous persons. ignorance was lack of knowledge that there is a god and this is the one true god we worship, that this god is one, yet three persons" father, son, and holy ghost, that god created man in his own image, that all have sinned and therefore shall die, that there is one mediator between god and man: jesus christ, who died on the cross to save men from their sins, that he rose from the dead, ascended into heaven, sits at the right hand of god, and intercedes for us, that christ and his benefits are applied only by faith, that the souls of the faithful live with christ in blessedness, that non-believers and non-repenters shall perish eternally, that the sacraments are baptism and communion, and that the is a judgment day on which the righteous will be given life eternal and the wicked shall receive everlasting punishment. scandalous persons are those who blasphemously speak or write anything of god, his holy work or the sacraments; an incestuous person; an adulterer; a fornicator; a drunkard; a profane swearer or cursor; a murderer; a worshipper of images, crosses, crucifixes, relics, saints, or angels; makers of images of the trinity; one who professes not to be in charity with his neighbor; any challenging another to fight or accepting such challenge; on the lord's day, dancing, dicing, cards, masking, wake, shooting, bowling, football, wrestling, plays, interludes, fencing, bullbaiting, bearbaiting, hawking, hunting, coursing, fishing, fowling, selling wares, travel without reasonable cause; brothel-house keeper, one who solicits the chastity of another; one who consents to the marriage of his child to a papist or marries a papist; own who goes for advice to a witch, wizard, fortune-teller; assault his parents, or any magistrate, minister, or elder in the execution of his office; one attainted of barratry, forgery, extortion, or bribery. if such a person persists, he shall be excommunicated. cromwell did not disapprove of activities prohibited because of the recreation they provided, but thought that they had become too central to people's lives. he did not close the taverns or ale houses. in 1653 it was required that public preachers be approved by a commission nominated by the lord protector and parliament because there had been too many "weak, scandalous, popish, and illaffected" ones. in 1654 named persons were ejected as scandalous, ignorant and insufficient ministers and schoolmasters. in 1649 a corporation was established to teach the gospel of jesus christ in new england to indians. because the poorer parishes of london were having problems supporting their poor, a corporation for the poor of london was established in 1647 with authority to erect workhouses and houses of correction. imprisoned debtors who had less than five pounds and less that five pounds worth of trade tools and clothing and bedding for his family were ordered released in 1649. wardship was abolished. military tenures were abolished. feudal tenures were converted into freehold in 1646. in 1653 those living in crown forest land were given free socage in that land. the game laws were not enforced, so people could eat deer. enclosures were increasing and parliament was disinclined to protect copyholders against enclosures, favoring those with rights of ownership. enclosure was no longer deterred especially after abolition of the star chamber. the legal device of "strict settlement" evolved to prevent heirs from breaking up estates enabled families to concentrate land and capital into large units. the oldest son inherited the land and the younger sons now received money. clover seed was sold in london by 1650. it revolutionized the cultivation of barren land. england began to export instead of import grain. but vagrancy increased from people dispossessed of land. and the village artisan, when deprived of his field and of this rights of common, could not continue to work at home, but had to accept the wages offered to him in an employer's workshop. employers and entrepreneurs were now free from control by the crown. there were no more attempts to supervise quality of manufactures or to fix prices or regulate wages. there was greater freedom established in relations between employers and workers. the government no longer tried to compel employers to keep employees in times of economic slump. the requirement of seven year apprenticeships and being the son of a freeholder to be an apprentice were not enforced. the economy was still volatile due ostensibly to variable harvests, amount of gold and money in circulation, and balances of trade, and to periods of plague. wages rose steadily. the rise in prices ended about 1650, and prices remained stable until about 1775. there was more mobility of people. taxation became regular and it was controlled by representatives of the taxpayers. population growth gradually stabilized. capitalism was coming into being. for instance, the clothier was now a manufacturer. he had become a contractor, taking wool to the specialist spinner, the yarn to the specialist weaver, the rough cloth to be washed and stretched, and finally to the dyer. this cloth was sold at retail by the drapers. tin on the surface was exhausted, so capital was used to drive deep shafts in tin mines. no longer did a single man with a single ship sail around until he found a market, but company trading overseas had their ships, wharves, and depots furnished by men's savings put into a common stock. the first major capitalist industries were coal mining, iron mining, and foreign trade because they all needed large investments, and thus joint-stock company organization. cromwell reconstituted the east india company on a wider and more permanent basis. he gave it a new charter in 1657 which included authority to make stock permanent, thus ensuring a continuity of capital. this solved the problem of the competition of overlapping voyages which still occurred despite their terms of several years. the company became one of the first permanent joint-stock companies. now the stock was never wound up. the company had permanent capital which could grow. the absence of competition among voyages made the company stronger in the face of a common enemy, such as a rival trading county or indian groups. the charter also authorized the company to fortify and colonize any of its establishments and to transport to them settlers, stores, and ammunition. later in 1657, the company threw open the freedom of the company to the public for a nominal sum of five pounds. now the merchant adventurers and private traders could participate. it provided that dividends were to be paid only in cash and not in kind (goods). it also provided for appraisals of the company's property to be made every three years, so any shareholders could redeem their shares proportionately. his shares would then be resold. people began to buy and sell their shares among each other. the company made the minimum subscription 100 pounds. each person holding 500 pounds worth of shares had one vote. holding 1,000 pounds worth of shares qualified one for election to the committee of twenty-four. the seats of the members of this committee and of the governor and deputy governor could no longer be permanent, but had limited and staggered terms. the continuity of capital took the place of the permanence of the governing body in providing stability. there was a regular scale of salaries for employees, and rules of conduct such as the one disallowing any clerk of the india house from going to play houses, dancing schools, or taverns. the company established almshouses for its widows and orphans. in 1657 the muscovy company, renewed its charter for trade in russia and established a new general stock. if a man bought a share, he bought freedom of the company. an annual dividend was declared from the annual profits. commercial men regularly kept accounts with bankers. merchants used division to apportion profits or losses to the parties whose capital was involved. simple and compound interest were used. the concept of contract became a familiar one. regular private bankers of london emerged from the goldsmiths from 1640 to 1675. they issued bank notes and paid checks. cromwell increased trade by seizing territories, establishing colonies, and warring with competitors for master of the seas and trade. in 1649 it was provided that no one who paid his assessment for soldiers' pay would have to quarter any of them. authority was given in 1649 to impress seamen: mariners, sailors, watermen, surgeons, gunners, ship carpenters, caukers, coopers, whoymen, and carmen for carriage of victuals. english ships were embellished with decoration. their sail area was increased by triangular fore and aft sails. the navy increased from 39 to 80 vessels. after serving in foreign wars, ex-soldiers were allowed in 1654 to practice any trade without serving a seven year apprenticeship. colonies new hampshire and maine were established in 1635, connecticut in 1636, and rhode island in 1638, as offshoots from other colonies. about 1650, steel was hardened by repeated quenchings and temperings when the steel had reached certain colors. brass was made from copper and zinc alloyed together. there were power-driven rolls for the coinage from 1657. strips of silver were passed between engraved rolls. then coins were punched out and their edges serrated. in the 1650s, huygens invented the pendulum clock, which increased the accuracy of time-keeping tenfold. there was a thermometer which used liquid such as water or alcohol in a glass tube instead of air. dutchman stevinus showed that the pressure at the bottom of a column of liquid is proportional to the height of the column, and not to its bulk, about 1634. he also studied oblique forces, and the balancing of such that could bring about "stable equilibrium". at a time when mathematics was only a business of traders, merchants, seamen, carpenters, and surveyors, mathematician john wallis, the son of a minister, studied sections of cones as curves of the second algebraic degree. he worked with negative and fractional exponents. around 1655 he invented the infinite arithmetic and introduced the symbol for infinity. he determined that the area under any curve defined by the equation y = (x to the nth power), was x to the (n+1)th power divided by n+1. , blaise pascal, a french mathematician, physicist, and religious philosopher, constructed a calculator in 1644 to assist his father, who was involved in local administration, in tax computations. around 1646, he proved his law that pressure applied to a confined liquid is transmitted undiminished through the liquid in all directions regardless of the area to which the pressure is applied. around 1653, he laid the foundations for the theory of probabilities, including the creation of "pascal's triangle" of coefficients of (a=b) raised to the nth power. he and lawyer and mathematician pierre fermat invented the theory of probabilities. fermat also proved that the law for refraction (bending) of light results from light's following the path that takes the shortest time. he founded number theory. fermat formulated the notion of a line tangent to a curve and started the development of differential calculus, in which a rate of change is expressed as a function of time in equation form and also as a tangent to the curve associated with that equation.. this work helped lay the foundation for analysis. he and german gottfried leibniz formulated the principle that an equation with two unknown quantities can represent a curve. leibnitz believed that man's mind can arrive at truths about entities by pure thought. since the puritans forbade music in churches, but enjoyed it in domestic circumstances, much secular music was composed, published, and played. there were many musical clubs. the violin became very popular. solo songs were much sung. the first english opera: "the siege of rhodes" was written and performed with women on stage. writers of the time included john milton, political philosopher james harrington, poet edmund waller, thomas fuller, poet abraham cowley, and biographer issak walton. john aubrey wrote anecdotes about famous men. jeremy taylor, chaplain to charles i, wrote on theology. people still read french romances translated into english. dancing was still popular. coffee houses came into prominence as places of social discourse. the first coffee house was established in london in 1652; ten years later, there were 82 coffee houses in the city. there were elegant pleasure gardens, with a fee for access. they were used for promenades and picnics. ladies and their gallants rendezvoused there. cromwell introduced the habit of port drinking to england. in 1657, one general post offices was established with one postmaster general for all of england. no other person could have the horsing of the through-posts. it cost 2d. for a letter to or from 80 miles of london and 3d. for one outside 80 miles of london. there was continual problem with catholics. where papists or others had caused rebellion and insurrection and plundered, robbed, pillaged, murdered and raped, mayor, justices and capital burgesses of such towns were given the power in 1642 to call, assemble, train, and arm soldiers for defense. the committee of the militia of london was given authority in 1647 to search all houses and places for papists and to search for and seize any arms, ammunition, and war materials in custody of such persons. in 1648, all papists and soldiers of fortune who had borne arms against parliament were ordered to depart from within twenty miles of london and westminster or be imprisoned as traitors. in 1657 convicted papists and people marrying convicted papists were required to take an oath renouncing the pope and catholic church or lose two-thirds of their lands and estate, retaining their house on the remaining one-third. if one went to mass in an ambassador's house, the fine was 100 pounds and imprisonment for six months, one half going to the informer. in 1659 all householders in london and westminster had to give a list of persons lodging in their house, and the horses and arms there. but the laws against catholics practicing their religion were not rigorously enforced, nor were those against adherents of the formerly established church of england. the society of friends was founded by the son of a weaver. they greeted everyone as "friend" and did not bow, remove their hat (as was the custom when before the king or an earl), or otherwise show any reverence to anyone. from 1650, they were called quakers because they trembled when religiously stirred. they reverted to the ancient "thou" and "thee" appellations. their dress was particularly simple, with no buttons, lace, ruffles, or embroidery. they hated ritual so much that they rejected baptism and communion. they did not observe the sabbath as a special day different from other days. they derided the holiness of churches. no clergy were admitted into their sect. when they met for divine worship, each rose to deliver extemporaneous inspirations of the holy ghost. women were admitted to teach the brethren and were considered proper vehicles to convey the dictates of the spirit. quakers believed that every man, in his own life, could be fully victorious over sin. the denied any clerical authority and all texts. they believed in the separation of church and state. they refused to swear to any oath, e.g. in court, or to participate in war. they refused to take off their hats to anyone but god. it was their practice to turn the other cheek when one cheek had been struck. if asked for his cloak, a quaker would give it. he never asked more for his wares than the precise sum which he was determined to accept. the quakers developed a value of making provision for children from a first spouse when remarrying. they carefully selected masters and mistresses who wanted to take on child apprentices for their suitability for such responsibility. the education of quaker women did not decline, as it did for other women. from the fervor of their zeal, the quakers broke into churches, disturbed public worship, and harassed the clergyman and audience with railing and reproaches. when brought before a magistrate, they show no reverence but treated him as an equal. sometimes they were thrown into mad house or prisons and sometimes whipped or pilloried. they endured stoically under this suffering. mary fisher from yorkshire introduced quakerism to new england. in 1653 there were separation agreements between spouses as to property, e.g. support and maintenance. cromwell had bad experiences with parliaments. the rump parliament was a remnant of the long parliament. the army and then cromwell, although a member, came to believe that its members were selfinterested, preoccupied with perpetuating themselves in seats of power, and corrupt. they thought that their own hopes of reform in the law, in the church, and in public finances were being deliberately frustrated. cromwell came to doubt that it would ever give the people adequate government and protection. he started to believe that one man as chief executive could do this better. cromwell dismissed the rump parliament in 1653. a new constitution created a puritan "parliament of saints". these men were nominated in various ways, such as by church parishes, and selected by cromwell. this one-house parliament of saints in 1653 made cromwell lord protector for life with executive power of the state, with responsibility for making peace and establishing order after a decade of civil strife and political chaos. he was to administer the government and be the chief magistrate. it also provided for triennial parliaments (consisting of one house), and religious freedom for all except roman catholics and adherents of the formerly established church of england. cromwell did not tolerate the ritual of the formerly established english church nor allow any of its adherents to have any office under him. his was a purely puritan government. he did not sell offices. the parliament of saints challenged many vested interests in property such as sales of delinquents' and papists' lands. it clashed severely over the continuation of tithes to the church. it became disorderly when some declared the parliament dissolved and left. others remained in their seats. to avoid a parliamentary crisis, cromwell had soldiers close the parliament of saints and lock its doors. the people supported this action because they were dissatisfied with the state of public affairs. the next parliament that was tried was elected on a new constitutional basis of men with 200 pounds, but these men voted to make parliament sovereign without a chief executive, thereby abolishing the protectorate. cromwell was distressed that this parliament had also voted themselves to be the sole determinors of atheism and blasphemy instead of advancing liberty of religious conscience and religious toleration as cromwell had advocated. dissolved this parliament, declaring that it was not acting for the public good. a last parliament was also dissolved by cromwell for tending to loosen the bonds of government and thereby threatening the peace of the nation. cromwell had first ruled as a democratic leader who did not believe in force, but preferred to persuade with reason. he initially believed that people would do the right thing according to their consciences, but was disillusioned and then became autocratic. he came to rule as a military dictator. payment of taxes was enforced by distraint. after 1654, he issued about 100 proclamations covering public amusements, roads, finances, the condition of prisons, the imprisonment of debtors, banning of dueling and cockfighting, law reform, control of religion and education, and reorganization of the army. the singing of ballads was banned. the court of chancery was reformed by proclamation. the established church was reformed and the power to interfere with different faiths was denied to it. each parish could choose its form of service, whether presbyterian, congregational, baptist, or any other seen as fundamental by the puritans. no one was compelled to attend any particular church or to accept the discipline of any particular minister. but the book of common prayer was forbidden. there was freedom of worship for presbyterians, independents, baptists, quakers, catholics, and jews (who had secretly migrated to england to avoid persecution on the continent), but not prelatists (those favoring government of the church by bishops). in 1655, cromwell placed major generals in charge of eleven newlyestablished provinces. as their governors, they had authority to levy troops, exact taxes imposed by the protector, disarm royalists and catholics, examine into the conduct of the clergy and schoolmasters, arrest dangerous and suspicious persons, and prevent unlawful assemblies, and to enforce the existing laws against immorality and blasphemy. the only appeal was to the protector. since they were puritans, they ordered public ale houses to close as dusk, banned idlers, minstrels, and actors, forbade exercising of horses on sunday and the holding of markets on saturday as well as sunday, censored the press, and proscribed newspapers. horse races, which meetings were used for seditious purposes, were closed. theaters were closed. dancing was discontinued. organs and choirs in churches prohibited. court masks continued because they provided soothing music. after a year, cromwell withdrew the major-generals. from this time, men of property hated the idea of a standing army. in 1657, the officers of a new parliament modified the constitution and cromwell approved it, to secure liberties of the people as they never before had. under the modified constitution, there were again two houses. the commons regained its old right of exclusively deciding on the qualification of its members. parliamentary restrictions were imposed on the choice of members of the council, officers of state, and officers of the army. a fixed revenue was voted to the protector. no moneys were to be raised except by consent of parliament. liberty of worship was guaranteed to all except papists, prelatists, socinians (who denied the divinity of jesus), for those who denied the inspiration of the scriptures. liberty of conscience was secured for all. in 1658, cromwell tried another parliament, but dissolved it because it wrangled without resolution. after cromwell died, the people demanded the return of a genuine and free parliament. the old constitution was restored and a new house of commons was elected. it called charles ii to return to be king if he promised religious freedom and backpay to the army, which had not recently been paid. when cromwell's puritan soldiers were disbanded, they did not drift into thievery as royalists soldiers had before, but took up honest work such as baker, mason, brewer, baker, or haberdasher. puritanism now made itself felt not by the sword, but in literature and politics. it affected the character of the english, who tend to be stoics, and imbued capitalists with a hard-working attitude. the law after the civil wars, the law against enclosure was not enforced. what was passed in parliament in cromwell's time were called statutes, but after cromwell's time, these statutes were not recognized as legitimate. "whereas public sports do not well agree with public calamities, not public stage-plays with the seasons of humiliation, this being an exercise of sad and pious solemnity, and the other being spectacles of pleasure, too commonly expressing lascivious mirth and levity ... public stage plays shall cease, and be forborne instead of which are recommended to the people of this land the profitable and seasonable considerations of repentance, reconciliation, and peace with god, ..." no book or pamphlet may be printed, bound, stitched, or sold or imported unless licensed and entered into the register book of the company of stationers. officials of this company and of parliament may search all places which they shall think meet for all unlicensed printing presses and all suspected printing houses, warehouses, and shops and other places for unlicensed books and pamphlets and papers and seize them and apprehend all authors, printers, and other involved people and bring them before parliament or the committee on examinations for punishment. justices of the peace and other officers may order doors and locks broken for this purpose. the fine is ten pounds for authors, five pounds for printers, two pounds for booksellers, and one pound for buyers who conceal a book bought. one half of each fine shall go to the person who discovers and prosecutes the offender, and the other half shall go to the poor. this law suppressed royalist newspapers but was enforced only with great difficulty. all shall observe sunday and days of thanksgiving in their "duties of piety and true religion publicly and privately" and none may sell wares or goods, including fruit or herbs upon pain of forfeiture of such. none may, without reasonable cause, travel, carry burdens, or do any worldly labors or work whatsoever or pay a fine of 10s. this work shall include grinding grain, fulling in mills, burning turf or earth, gathering taxes, melting wax for candles, brewing, baking, butchering cattle, tailors fitting or carrying clothes, barbers trimming hair, being present at fairs or markets, or washing, whiting, or drying clothes. nor may any one maintain or be present at wrestlings, shooting, bowling, ringing of bells for pleasure or pastime, masks, wake, church-ale, dancing, games, sport or, for those over 14, forfeit 5s., and for those having care or education of a child under 14, 12d. maypoles, a "heathenish vanity, generally abused to superstition and wickedness", shall be taken down by officers or forfeit 5s. per week. if any offender can't pay his fine, he shall be put in the stocks for three hours. however meat maybe dressed in private families, and victual sold in inns and victualling houses in a moderate way, and milk sold before 9a.m. or after 4p.m. persons of the trinity, angels, or saints shall be demolished. altar and communion tables must not be raised but leveled. there may be no copes, surplices, superstitious vestments, or holy water fonts. there may be no crosses, crucifixes, pictures of the trinity, angels or saints on plates. all organs must be taken away. the fine for using the book of common prayer is five pounds for the first offense, ten pounds for the second offense, and one year imprisonment without bail for the third offense. the penalty for writing or preaching against the directory for public worship is five to fifty pounds. blasphemies and heresies such as teaching or writing or printing that there is no god, that god is not almighty, that jesus was not divine, that the resurrection of jesus did not occur, that the bible is not the word of god, or that there is no judgment day after death, are felony without benefit of clergy. if such an offender recants, he shall stay in gaol until he obtains two sureties. if he offends again after recantation, it is felony without benefit of clergy. in 1650 adultery was declared to be a felony, except if the husband had been beyond the seas for three years or had been reputed to be dead. incest was also declared to be a felony. it was defined as marrying or having carnal knowledge of one's grandparent, parent, sibling, mother's brother or sister, father's wife, mother's husband, son's wife, daughter's husband, wife's mother or daughter, or husband's father or son. fornication was given a punishment of three months imprisonment and until security was obtained for one year for good behavior. it was defined as carnal knowledge of a virgin, unmarried woman, or widow. a common bawd or one keeping a brothel or bawdy house was to be whipped, set in the pillory, marked in the forehead by a hot iron with the letter: b, and then imprisoned for three years without bail and until there were sureties for good behavior for life. the second offense was felony without benefit of clergy. there was to be no corruption of the blood. however, juries were reluctant to convict for adultery and incest. there shall be no profane swearing or cursing of forfeit by a lord 30s., a baronet or knight 20s., an esquire 10s., a gentleman 6s.8d., and all others 3s.4d.there is a double fine for the second offense. for the tenth offense, the offender shall be bound by sureties for good behavior for three years. a person equating himself or another with god or not believing in god shall be imprisoned for six months without bail. for the second offense, he shall be banished from the nation. no longer shall people be punished for nonattendance at church on sunday or days of thanksgiving, but may be at some other place of prayer, preaching, reading, or the scriptures. hawkers and ballad singers have been libelous, so are to be whipped as common rogues and then dismissed. also, their ballads and pamphlets are to be confiscated. vagrant, idle, loose, dissolute and disorderly persons and fiddlers in inns, alehouses, and taverns are to be punished as rogues, vagabonds, and sturdy beggars, that is, whipped. in 1649, treason against parliament was defined as writing, printing, or declaring that the government is tyrannical, usurped, or unlawful or that parliament is not the supreme authority or the nation, or plot, contrive, or endeavor to stir up or raise force against the government. attainder for such would not work corruption of the blood. treason to the protector was defined the same as it was to the king. army deserters are to be corporally punished or executed. fellable wood and underwood, but no timber trees, may be cut within 60 miles of london because fuel is needed, especially by the poor. this will be supervised by overseers appointed by parliament. no one may import foreign hats or hatbands to relieve that industry in england. as of 1656, certain food could not be exported when the prices of such exceeded a stated amount. for instance, 5 pounds for a 36 gallon barrel of beef, 6d. for a pound of bacon, 4 pounds and 10s. for a 224 gallon barrel of butter, and 24s. for 64 pounds of rye, pease, or beans. the customs for such items was more for foreigners than for natives, for instance 3s. for natives and 5s. for foreigners for a barrel of beef. butter for sale must not be corrupt and be properly weighed. one must obtain a license to buy wheat or other grain and put it to sale in meal or flour or forfeit three times the value. all books of the law, writs, pleadings, and patents shall be in english or forfeit 20 pounds. no deer may be killed or forfeit 15 pounds, half to the informer and half to the poor. interest may not exceed 6 pounds for a loan of 100 pounds yearly as of 1651. no goods are to be imported from america, asia, or africa except in english ships or forfeit all goods and the ship, one half of which goes to the one who seizes the goods and prosecutes. none may be imported from europe except in english ships or ships from the country of origin of the goods. no salt fish may be imported or exported but in english vessels. there is a 10 pound reward for discovery of highwaymen and burglars or persons who break and enter into houses and there use violence. no cart or wagon or carriage on the road may be drawn by more than five horses or six oxen and a horse except for military vehicles. notice of intended marriages shall be published once a week for three weeks in a public meeting place called church or a public market place next to church. exceptions to the marriage shall be noted by the register and considered by the justice of the peace before the marriage is performed. the words used shall be: "...promise to be unto thee a loving and faithful husband..." and "promise to be unto thee a loving, faithful, and obedient wife...". there shall be no cock-fighting because it disturbs the peace and usually is accompanied by gaming, drinking, swearing, and quarreling. anyone challenging or accepting a challenge to duel shall be imprisoned for six months without bail, and must acquire two sureties for a year. anyone fighting a duel in which death ensues, shall be banished for life. horse races were forbidden in 1654 for six months to discourage mischievous plots and designs by enemies of the state. the penalty was forfeiting the horse. attendees were to be brought to justice. as of 1657, a house or building built within ten miles of the walls of the city of london not having at least four acres had to pay a fine of one year's rent. all houses within london or westminster or the suburbs must be brick or stone, and built straight up without protruding into the street or forfeit 100 pounds. as of 1657 persons living extravagantly without visible estate or calling may be made by justices of the peace to acquire sureties for good behavior or go to gaol. they would also be sent to the house of correction to work for three months for the first offense and for a time specified by the justice of the peace for the second offense. anyone winning at betting or playing at cards, dice, tennis, and horse races shall forfeit double his winnings. excluded from pardon were buggery with man [sodomy] or animal [bestiality], carnal ravishment of women, and bigamy. drunkenness was much punished. husbands were responsible for their wives' oaths and fathers for their daughters'. judicial procedure the protector is the supreme magistrate of the commonwealth, with power to pardon all crimes, except murder and treason. parliament was no longer a court. use of the torture was proscribed in 1649. in 1652, the justices were given a salary of 1,000 pounds and forbidden to take fees or rewards. they also got tenure, thus freeing them from government pressure. now civil justice was honestly dispensed and justices were learned and honest. the jurisdiction of admiralty court was defined to include: ships and vessels with tackle, apparel and furniture thereof; repairing, victualling, and furnishing provisions of ships and vessels for sea; all cases of bottomry [ship-owner indemnified if the vessel were lost, but paid over a substantial share of the profits if it reached its destination safely], contracts beyond the seas concerning shipping or navigation; charter, parties, contracts for freight; bills of lading; mariners wages; damage of goods on board ships; and damage by one ship to another including by anchors or want of laying buoys. it did not include contracts between merchants. chapter 17 times: 1660-1702 the monarchy was restored and charles ii came to the throne. the episcopacy of the bishops and the book of common prayer were restored. this book retained all its ceremonies, despite opposition by the presbyterians. the confiscated royalist, church, and crown lands were ordered to be restored, and most were. charles ii was presented with the traditional rights of choosing his own privy council, ministers of state, and justices; making foreign policy; controlling the armed forces; and approving statutes. he was also presented with the power to call and dismiss parliament, but later, in 1694, a statute required that parliament be held at least once every three years, to avoid royal schemes of non-parliamentary government. the house of lords was reestablished and there were again bishops in it, though fewer than before (about 1/8 instead of about 1/3). there were 160 peers for the next century. the house of commons was elected in the usual way, but without a king's writ. the commons was composed mostly of royalist established church members. its leaders were important members of the king's privy council. the feudal tenures of the crown, such as knights' service, were converted into free socage. they were discharged of homage, reliefs, escuage, and aids. charles relinquished purveyance, wardships, and forfeitures of marriage. in return, parliament granted him a fixed yearly income of 100,000 pounds from excise tax on beer, cider, and tea. several hundreds of dissenter ministers and school teachers were ejected, but later those who were not baptists were returned by statute of parliament. (baptists did not believe in an established church.) charles ii was an easygoing and kindly man and hard to ruffle. he had a weariness in the folly of men and a cynical disbelief in human virtue. his wit and great sense of humor softened many a potentially tense situation. his restoration to the throne brought in a time of enjoyment of life in reaction to the puritanism of before. at his succession, the elected parliament was oriented toward royalty and the established church. he was voted an income of 1,200,000 pounds a year. he also sold many of the last crown lands. but he always had great debts, which he described as a "desperate but not serious" situation. this was in part due to his generous maintenance of several successive mistresses and more than about a dozen illegitimate children. his entourage also included physicians, surgeons, a librarian, a poet laureate, chaplains, painters, an historiographer, musicians, a royal composer, and an astronomer. charles even joked on his deathbed that "i am sorry gentlemen, for being such an unconscionable time a-dying." the day of charles ii's restoration and birthday was designated as a day of thanksgiving when all were to participate in prayers and the singing of psalms at some church or other suitable public place. charles initiated the return of sunday afternoon wrestling, archery, music, and dancing. theaters reopened with actresses playing women's parts, an audience only in front of the stage instead of around it, a drop curtain, and painted two-dimensional scenery. actresses were allowed pursuant to royal proclamation so that plays should become "useful and instructive representations of human life" rather than "harmless delights". charles went to plays regularly. actresses were assumed to be mistresses of patrons in return for their jobs, but one fourth were actually chaste women married to actors. comedies were the preferred plays. courtesans were sympathetically and even admirably treated in plays, which mocked all restraints and glorified immorality with the exception of pornography, which was banned. bad actors were hissed off the stage. henry purcell wrote religious music for churches, ceremonial music for the english court, and theater music for english opera. opera made music a vehicle for human emotions. the gentry sang to the lute and danced to string instruments. many owned and played musical instruments. humble people had folksongs and instruments like the pipe and tabor for dancing. singing in parts was popular in town and country. in 1672 john banister started the first regular series of public concerts in his house. there were lovely formal gardens in which to walk, to see fireworks, and to buy the new ice cream. charles did much garden and park planning and let the public enjoy the royal st. james park. he loved hunting too and had the royal forests replenished with deer after poaching during the cromwell era had greatly reduced their numbers. charles ii introduced sailing and yacht racing for pleasure. he also participated in and promoted horse racing. the breeding of thoroughbred horses began with breeding to arab mares. gelding horses were now preferred over stallions. there were trotters, cart horses, and some "fast" race horses. boxing (with no gloves nor ring) was a national sport. ice skating with iron blades was popular. valentine's day was celebrated. italian puppet shows played in london. dress returned to elaborateness. gentlemen wore cavalier-style long wigs with curls, despite the church's dislike of wigs. this could hide the short hair of a former puritan roundhead. in 1666, charles introduced a new mode of inexpensive court dress which was made entirely from english textiles. this gave rise to gentlemen's weskits to below the knee with a coat of the same length and full sleeves. stockings and shoes replaced the long fitted boots. charles set a court tradition of men wearing a scarf tied around the neck. ladies often wore their hair in masses of ringlets with little corkscrew curls on each side of their heads, and later piled their hair up elaborately on their heads. they wore satin or silk dresses fitted at the waist with a pointed bodice, and full skirt. the shoulder line was low and the sleeves full and open at the front with fastenings of jeweled clasps. the only fast colors were reds, blues, purple, and yellow, but not green. they kept their hands warm in muffs. women wore perfume, rouge, and face patches. some women put on a lot of make-up. many men dressed effeminately with rouge, face patches, heavily scented clothing, muffs, and many ribbons of many colors. the facial beauty patches were in shapes such as stars, crescent moons, and hearts; they diverted attention from the common smallpox scars. there were oxford shoes, which laced up the front through eyelets. the members of the house of commons dressed like the gentry and assumed their manners. there was exaggeration in all complimentary and ceremonial language. the gentry were beginning to be thought of as a "squirearchy". they owned about half the land of the country. the population according to class was as follows: number of social ranks, household household households degrees, titles size yearly income in pounds 160 temporal lords 40 3,200 26 spiritual lords 20 1,300 800 baronets 16 880 600 knights 13 650 3,000 esquires 10 450 12,000 gentlemen 8 280 5,000 persons in greater offices and places 8 240 5,000 persons in lesser offices and places 6 120 2,000 eminent merchants and traders by sea 8 400 8,000 lesser merchants and traders by sea 6 198 10,000 persons in the law 7 154 2,000 eminent clergymen 6 72 8,000 lesser clergymen 5 50 40,000 freeholders of the better sort 7 91 120,000 freeholders of the lesser sort 5.5 55 150,000 farmers 5 42.5 15,000 persons in liberal arts and sciences 5 60 50,000 shopkeepers and tradesmen 4.5 45 60,000 artisans and handicrafts 4 38 5,000 naval officers 4 80 4,000 military officers 4 60 50,000 common seamen 3 20 364,000 laboring people and out-servants 3.5 15 400,000 cottagers and paupers 3.25 6.5 35,000 common soldiers 2 14 25,000 vagrants, as gypsies, thieves, beggars as can be seen, agriculture is still the most common occupation. great houses now had a central dining chamber [saloon] for dining, with sets of lodgings [suites], usually for couples, around it. each lodging had an ante-chamber and/or drawing room, and then a bedchamber, off of which there was a servant's room and a closet [cabinet]. no longer did personal servants bed down in the drawing room or outside their master's door or in a trunkle bed at his feet. the servant's room was connected to a back staircase for use by servants. secret guests also used it. the closet room was the innermost sanctum for privacy and gave its name to the later cabinet of the government. there were fewer servants and they were of a lower social status than before. they were often sons of merchants, clergymen, and army officers. gentlemen no longer advanced by service to a great man, but instead through grammar school and university education, commerce, the law, or the armed services. this change came about because the state now maintained reasonable law and order. there were more female servants, who were paid less to cook and to clean as well as doing laundry and nursing. servants were kept more in the background, preferably out of sight. the elaborate ceremonial ritual with sewer, carver, and cupbearer was gone. a butler replaced the yeomen of the buttery, ewery, and pantry, and footmen began to wait on the table at which the lord, his lady, and other couples sat. servants no longer had meals in the hall, which now had a grand staircase up to the dining chamber. the highest servants, the officers: clerk of the kitchen, clerk of the check [comptroller], head cook, butler, and groom of the chambers, and female housekeeper ate in the gentleman-of the-horse's room, although at a separate table. the kitchen staff ate in the kitchen. the footmen, underbutler, porters, coachmen, grooms, stable-boys, gardeners, maids ate in a servant's room. the steward was no longer the chief household officer, but had a room near the kitchen. the bulk of the servants slept in the basement or subordinate wings of the house. great houses of nobles had more rooms, such as a chapel, library, parlors, dressings rooms, and galleries; there was a variety of architectural floor plans. the structure of a noble household of an earl was as follows: the chief official was the receiver general. he had financial responsibility for the household and prepared accounts for the household and for the tenants' estates. these were checked by an auditor. the receiver general was often the son of a country gentleman and had a salary of 50 pounds raised to 100 pounds with longevity. he had a servant and an assistant. if married, he had a house on the property. there was perhaps an attorney on retainer [paid for a certain number of hours per week or month}. the gentleman of the chamber [privy purse] kept the accounts of the family and bought them apparel and toiletries. he was in close personal attendance upon the earl. his salary was 20 pounds a year. besides the receiver general and the gentleman of the chamber, the tutor and chaplain had the closest personal contact with the family. the lady had a gentlewoman with a maid servant. the receiver general supervised most of the staff. there was a steward of 40 pounds a year. he supervised a clerk of the kitchen and a house bailiff of 20 pounds a year. the bailiff had responsibility for the produce of the estate, e.g. the gardens, the deer park, and the fish ponds. under the clerk of the kitchen was the cook man and kitchen boys, the latter of whom were clothed and fed but not paid. the steward also supervised the 4 pound yearly porters, who kept the gates; the watchmen outside; and the head housekeeper, usually a woman of 2 to 6 pounds yearly. she supervised the laundry maid and general maids, who spent much of their time sewing. the steward was also responsible for the wine cellar. a dozen footmen belonged partly to the house and partly to the stables and received 2 to 6 pounds yearly. they waited on the lord and lady in the house and accompanied them in travels and did errands for them. the gentleman of the horse supervised the stables, coach, dogs, kennels, and 16 pound yearly huntsman. boy pages also worked partly in the house and partly in the stables. they were clothed and fed, but not paid. the head gardener received 80 pounds for tending the flowers, vegetables, and fruit trees. he had casual workers as needed to assist him. the steward was also responsible for the london house. here there was a housekeeper, a watchman, and a 40 pound a year gardener, all there permanently. when the lord was there, bargemen were employed for his barge. the salaries for the family estate totaled about 600 pounds a year. sometimes married sons' or daughters' families stayed for months at the family estate; then they would pay for their part of the food. well-to-do people drank imported tea and coffee, sometimes from porcelain ware, and usually after dinner or supper. most tea leaves were brewed first for the family and guests and a second time for the servants; then they were given to the servants' relatives or friends. queen mary encouraged the fashion of collecting chinese porcelain. the rich had red or black and gilt lacquered cabinets and cupboards. oak gave way to walnut, with its variegated surfaces. there were grandfather clocks. some fireplaces now had cast-iron firebacks. stuffing began to be upholstered to woodwork benches. chairs were taller in the back. ladies did needlework to cover them and also made patchwork quilts. cane seats came into fashion. from the spring of 1665 to the end of 1666 there was a great plague, mostly in london. it was the last and worst plague since the black death of 1348. it lasted over a year and about one-third died from it. households with a plague victim were walled up with its residents inside to reduce contagion, and then marked with a red cross. church bells tolling their requiems clanged in ceaseless discord. the mournful cry "bring out your dead" echoed in deserted streets. at night groups of people shoveled the corpses into open graves. to prepare for this revolting task, they often first became drunk out of their senses. people took wild beliefs in hope of avoiding the plague. for instance, at one time it was thought that syphilis would prevent it, so maddened hordes stormed the brothels. at another time, it was rumored that the plague could be burned out of the air, and all one day bonfires blazed outside every door and people sweltered in the heat. other localities posted sentries on the road to keep londoners out of their areas to prevent the plague from spreading there. since sneezing was thought to be the first sign of a person getting the plague, it became common to ask god to bless a person who sneezed. in london, statistics were collected on the number of plague victims and their places of death to try to determine the cause of the plague. in 1666 a fire destroyed three-fourths of the city of london. the blazing buildings were so hot that people with leather buckets of water, hand squirts, and manually operated water-pumping machines could not get near them. there was a lot of noise from falling buildings. panic and desperation were widespread. there was a lot of crying out and running about distractedly. people saved some of their possessions by burying them or removing them from the fire's path as they moved to different lodgings. the streets were full of carts piled high with furniture and merchandise. the thames river was thick with heavily laden barges. melting lead from st. paul's church ran down the streets in a stream. the tower of london, upwind of the fire, was saved by blowing up surrounding buildings. eventually the wind abated and the fire was put out. a fire court with royal justices was created to offer settlements that were free, fair, fast, and final. army tents and supplies, and soup kitchens sustained the citizens in the fields. after the fire, buildings had to be brick or stone rather than wood, except for doors and windows. also, more plaster and tile was used. all roofs had to be of tile or slate, rather than thatch. there was a general use of tile for roofing. about 1714, came slate for roofings. all buildings had to be at least two stories high, with flat facades rather than overhanging upper floors. they had to have wide brick walls around them to avoid the spread of fires. many streets, squares, and alleys were professionally planned, after the example of indigo jones who had continued his town planning with lincoln's inn field's open square surrounded by houses with iron balconies and leiscester square. main streets had to be wide enough to stop a fire. the street selling that had caused so much congestion was removed to new market places. the massive rebuilding of london ended the monopoly of the building trade claimed by the mason's company. astronomer and geometrician christopher wren designed and built a new st. paul's cathedral and many churches in london, becoming england's first architect. he worked up from a square base through all sorts of shapes to a circular double dome on top. the fire put an end to whitehall as a royal residence and st. james palace was used instead. but at least one fire hazard remained. that was the practice of lighting new fires by taking buckets of hot coals from one room or house to another. this was faster than the several minutes it took to use a tinder box to start a flame, i.e. striking a piece of flint upon a piece of steel making a spark which was dropped onto tinder and then blown upon. matches were invented in this period, but expensive and unsafe. nicholas barbon began fire insurance in the 1670s. if fire broke out on an insured premises, the insurance company's firemen would come with leather buckets and grappling irons, and later small hand pumps. barbon also redeveloped many districts in london, tearing down old buildings without hesitation. he started the system of selling off leases to individual builders, who hoped to recover their building costs by selling their houses before they were completed and before substantial payments on the lease became due. entrepreneurial master-builders subcontracted work to craftsmen and took a large profit or a large loss and debt. aristocrats bought large parcels of land on which they built their own mansions surrounded by lots to be rented to building contractors and speculators like barbon. the houses built on these lots were sold and the underlying land rented. these rentals of land made the mansions self-supporting. barbon built rows of identical townhouses. sometimes houses were built on all the lots around a square, which had gardens reserved for the use of those who lived on the square. most of the new building was beyond the old city walls. marine insurance for storms, shipwreck, piracy, mutiny, and enemy action was also initiated. before the fire, e.g. in tudor times, the writing of risks had been carried on as a sideline by merchants, bankers, and even money-lenders in their private offices and was a private transaction between individuals. london was residential and commercial. around the outside were tenements of the poor. from 1520 to 1690, london's population had risen tenfold, while the nation's had only doubled. london went from 2% to 11% of the nation's population. in 1690, london's population was about half a million. after 1690, london's population grew at the same rate as the nation's. the first directory of addresses in london was published in 1677. business began to follow the clock more strictly and many people thought of their watches as a necessity. london coffee houses, which also sold wine, liquors, and meals, became specialty meeting places. they were quieter and cheaper than taverns; for a penny, one could sip a cup of coffee by the fire, read the newspapers, and engage in conversation. merchants, stock jobbers, politician groups, soldiers, doctors and clergymen, scholars, and literary men all had special coffee house meeting places. notices and letters of general interest were posted therein. many merchants, brokers, and underwriters, especially those whose houses had been burned in the fire, conducted their business at their coffee house and used it as their business address. men in marine insurance and shipping met at lloyd's coffeehouse, which was run by edward lloyd who established it for this purpose in 1687. lloyd provided reliable shipping news with a network of correspondents in the principal ports at home and on the continent and circulated a handwritten sheet of lists of vessels and their latest movements at his coffeehouse. the patrons cheered safe arrivals and shared their grief over ships lost. they insured their own risks at one moment and underwrote those of their friends the next. auctions of goods and of ships and ship materials which had been advertised in the newspapers were conducted from a pulpit in the coffeehouse. french wine was consumed less because of heavy taxation and spirits and beer were consumed more. the streets were alive with taverns, coffee houses, eating houses, and hackney coaches past 9 p.m. at night. coffee houses were suppressed by royal proclamation in 1675 because "malicious and scandalous reports" defaming his majesty's government were spread there, which disturbed the peace and quiet of the realm. but this provoked such an uproar that it was reduced to a responsibility of the owner to prevent scandalous papers and libels from being read and hindering any declarations any false and scandalous reports against the government or its ministers. london air was filthy with smoke from coal burning. in 1684 the streets were lit with improved lights which combined oil lamps with lenses and reflectors. groups of householders combined to hire lighting contractors to fulfill their statutory responsibility to hang candles or lights in some part of their houses near the street to light it for passengers until 9:00 p.m., and later to midnight. in 1694 a monopoly was sold to one lighting company. in 1663 a body of paid watchmen was established in london. an office of magistrate was created and filled with tradesmen and craftsmen, who could make a living from the fines and fees. this was to supplement the unpaid justices of the peace. the public was encouraged to assist in crime prevention, such as being witnesses, but most policing was left to the parishes. crowds punished those who transgressed community moral standards, threatened their economic or social interests, or offended their religious or patriotic beliefs. often a crowd would react before the call of "stop thief" or the hue and cry from the local constable. pickpockets would be drenched under a pump. cheats would be beaten up. dishonest shops and brothels would be ransacked or destroyed. the most common targets were promiscuous women and pregnant servants. there were many highway robberies and mob actions in london. mobs in the thousands would turn out against the catholics, especially at times of unemployment and trade depression. working people still saw demonstrations and violence as the best way to achieve their economic goals, since strikes didn't work. for example, the silk workers used street violence to get protective legislation against imports and mechanization in 1675. the manufacture of silk material had been brought to england by french workers driven from france. in 1697, three thousand london silk weavers demonstrated outside the commons and east india house against the importation of raw silks by the east india co., and a couple months later, they attacked a house in the city owned by a gentleman of the company. in 1701, heavy duties were imposed on the import of indian silks and wearing of indian silks was prohibited by statute. sometimes mobs would break open the prisons to release fellow rioters or take action against strike breakers or informers. parish constables elected by their neighbors could not control the mobs and stayed within their parishes. dueling was still prevalent, even though against the law. in london and westminster, it was hard to enforce the requirement that inhabitants keep the street in front of their house clean and store the filth until the daily raker or scavenger came with cart and dung pot. so a commission was made responsible for paving and keeping clean the streets, making and repairing vaults, sewers, drains, and gutters, and removing encroachments. it compensated those with encroachments of over 30 years. it assessed inhabitants of such streets 16d. per square yard from the front of their building to the center of the street. women continued to empty their pails and pans outside their doors and did their washing on stools in the streets. there was a penalty of 5d. for throwing filth in front of one's house, and 20d. for throwing it elsewhere in the streets. scavengers and rakers could lodge their coal ashes, dust, dirt, and other filth in such vacant public places as the commission deemed convenient for accommodating country carts returning otherwise empty after their loads were sold. however, this system did not work because people would not pay their assessments. so there was a return to the former system of requiring citizens to sweep and clean the streets in front of their buildings twice a week and keep the filth until a scavenger or raker came. the penalty for not doing so was 3s.4d., later raised to 10s. any one throwing coal ashes, dust, dirt, rubbish, or dung onto the streets or lanes incurred a fine of 5s. there was a fine of 20s. for hooping or washing any pipes or barrels in any lane or open passage or repairing coaches, sawing wood, or chiseling stones in the streets. pigs kept in or about one's house had to be forfeited. one way that people traveled was to be carried in sedan chairs held up by two horizontal poles with one man at the front ends and another man in back. there were so many sedan chairs and coaches for hire in london that the watermen lost business. all hackney coaches in london or westminster were required to be licensed and marked with their owner's distinctive mark so that complaints could be made. their maximum rate was 10s. for a 12 hour day, and 18d. for the first hour and 12d. for every hour thereafter. licensed coachmen were not allowed to practice any other trade. the coaches paid the commission 5 pounds yearly. hay sold along the road brought 6d. per load, and straw 2d. per load, to the commission. there had to by paid 3d. for every cart load of hay sold at the hay market and 1d. for every cart of straw, to go towards paving and repairing the hay market street. overall, agriculture improved. fields that would have been left fallow were planted with new crops which restored indispensable chemical elements to the soil. at the same time, they supplied winter food for stock. the size and weight of animals for slaughter grew. there was so much stock breeding that it was more economical for a family to buy meat, milk, and eggs, than to maintain animals itself. there was an explosion in the growing of beans, peas, lettuce, asparagus, artichokes, and clover. the demand for food in london and other urban areas made enclosure for crop cultivation even more profitable than for sheep grazing. the government made no more attempts to curtail the enclosure of farm lands. the number of enclosures grew because copyholders were not successful in obtaining the legal security of tenure. but most land was not enclosed. in 1661 in essex, the wages for mowing one acre of grass were 1s.10d.; for reaping, shearing, binding one acre of wheat 4s.; and for threshing a quarter of wheat or rye 1s. wives participated with their husbands in general agricultural chores and did the dairy work including making cheese. every householder kept chickens because egg production was cheap, their market price being only 1s. for a hundred. wives also took care of the gardening work and traditionally kept for their own the cash that came in from garden, dairy, and poultry products. a wife made jellies and preserves when the fruit trees, bushes, and vines were bearing. imported sugar enabled fruit to be preserved as jam in jars sealed with a layer of mutton fat to make them airtight. she was likely to concoct medications from her herbs. meat had to be smoked or salted when there was not enough fodder to keep animals alive through the winter. she saw to it that the soap was boiled and the candles molded. she cooked the daily meals, did the washing, produced cloth for the family's use, and sewed the family's clothing. women had less work and lower pay than men. since most cottages had a spinning wheel, spinning work was readily available to wives. in the 1670s, a female weaver or spinner was paid 2-4d. per day. a domestic servant, who was usually female, was paid 40-80s. a year. men in the trades objected to competition from lower-paid women. aristocratic ladies actively managed their family's household and estates. the only work available to a high middleclass woman who was waiting to get married was to be a governess in another household or a lady-in-waiting to a gentlewoman. children often worked; this was recommended so that they were under the direct supervision of their parents rather than getting into mischief in the village. the mother typically mingled severity with gentleness, but the father did not dare to err on the side of leniency. discipline was by whipping. children were treated as little adults. the lack of a conception of childhood innocence even extended to the practice of adults to tell bawdy jokes in their presence or play with their children's genitals. about 1660, the royal society for science was founded by charles ii, who became its patron. it was formed from a discussion group of the new experimental philosophy. it included the baconians formerly at oxford and cambridge, who were ejected at the restoration, and a group of gresham professors of geometry and astronomy. the royal society met at gresham college. its goal was to compare ideas in mathematics and science and identify specific aims of science. charles himself had his own laboratory and dabbled in chemistry and anatomy. similar societies were formed all over the world. theologicians warned that scientific research was dangerous. but it's advances improved agriculture, manufactures, medicine, surgery, navigation, naval architecture, gunnery, and engineering. issac newton was a genius, who in his childhood designed and built model windmills, water wheels, water clocks, and sundials. he came from a family which had risen from the yeomen ranks to the gentry. for a few years after graduating from cambridge university in 1665, he secluded himself in the countryside to study. here, using the work of wallis, he formulated the binomial theorem that expands (a+b) raised to the nth power, where n is an integer, fraction, or negative number. when n was a negative number, the expansion never terminated; instead of a finite sum, there is an infinite series. he then developed the notion of a number being the limit of an infinite converging series of partial sums, such as the limit of 1+(1/2)+(1/4)+(1/8)...= 2. by considering the state of motion of a mass-point in an infinitely short time under the influence of an external force, he developed rules for finding areas under algebraic curves [integration], such as the hyperbola, and finding tangents to algebraic curves [differentiation], which he recognized as inverse processes. that is, taking the integral and then the differential of a function results in a return to that function. newton discovered that colors arose from the separation rather than a modification of white light, that is natural sunlight. he did this using a prism to dissect the white light into its spectrum of constituent colors and then using a prism and lens to recombine the colors to reconstitute white light. the spectrum was the same as that of a rainbow. he determined the angle of refraction of each color by beaming white light through a prism, and then through a hole in a board which isolated one color, to another prism. when he discovered that all colors reflect from a mirror at the same angle, he invented and built the reflecting telescope, which used a parabolic concave mirror and a flat mirror instead of a convex lens, thereby eliminating the distortions and rainbow coloring around the edges that resulted from the refraction of different colors at different angles. he deemed a ray of light to consist of a rapidly moving stream of atomic particles, rather than robert hooke's pulses or christian huygens' waves, because shadows showed a sharp boundary between the light and the absence of light. he reasoned that if light was made up of pulses or waves, it could spread around obstacles or corners as sound seemed to do. he approximated the speed of sound. newton opined that an object moves because of external forces on it rather than by forces internal to the object. he connected the concepts of force and acceleration with a new concept: mass. he found that the acceleration of a body by a force is inversely proportional to its mass, and formulated the equation that force equals mass time acceleration. another law was his principle of inertia that any body, in so far as it is able, continues its state either of rest or in uniform, rectilinear motion. his next law was that when a body a exerts a force on a body b, then b also exerts a force on a which is equal in amount but opposite in direction. newton had a radically novel idea that equated instantaneous acceleration to the gravity force which provoked it. he theorized that the same gravity force that pulled an apple down from a tree extended out to the moon hold it in its orbit around the earth. he connected these movements by imagining a cannon on a mountain shooting a series of cannonballs parallel to the earth's surface. the first shot had only a tiny charge of explosive, and the cannonball barely makes it out of the muzzle before falling to the ground. the second shot is propelled by a larger charge, and follows a parabolic arc as it falls, the next shots, fired with increasingly more propellant, eventually disappear over the horizon as they fall. lastly, with enough gunpowder, a speeding cannonball would completely circle the earth without hitting it. he combined the inductive and deductive methods of inquiry, first making observations, and then generalizing them into a theory, and finally deducing consequences from the theory which could be tested by observation. he carried mathematization of data from experiments as far as possible. his universal theory of gravitation is based on the idea of forces between objects rather than from one object to another; e.g. the apple exerts a force toward the earth as well as receiving a force from the earth. his law of gravitation explains how the whole universe is held together. this law holds that every object in the universe attracts every other object with a single gravitational force that is directly proportional to the product of their masses and inversely proportional to the square of the distance between their centers. newton had first believed in the cartesian system of celestial vortices of aether than swirled the planets and comets around their orbits. the gross features of the universe led to his recognition that the attraction between two bodies decreased inversely to the square of the distance between them. then he came to accept hooke's hypothesis that planets are kept in their orbits by the combination of an attractive power of the sun and of motion in a straight line that was tangential to their orbits. from astronomical data, he calculated this centrifugal acceleration of each planet to be the inverse square of its distance from the sun. he also calculated the "centripetal" accelerations necessary to bring the planets into their orbits. his experiments had shown that he centripetal force in a circular orbit was equal to the mass of the body times the square of its velocity, all divided by the radius of the circular path. he used calculus and differential equations to determine centripetal forces of elliptical orbits, where the distance from the sun, the velocity, and the acceleration were variables. he correlated the moon's orbit with the measured acceleration of gravity on the surface of the earth. then he formulated the idea that the ultimate agent of nature was a force acting between bodies rather than a moving body itself. gravity did not act in proportion to the surfaces of bodies, but in proportion to quantity of matter, its penetration to the very center of all bodies without diminution, its propagation to immense distances decreasing in exact proportion to the square of the distance. newton showed that a single gravitational force could account for the way falling objects descend to the ground, the parabolic trajectory of projectiles, the motion of the moon in its orbit around the earth, the course of the tides every twelve hours, the lower densities of the earth's atmosphere at greater heights, the paths of jupiter's satellites, and the ellipitical motions of the planets in their orbits around the sun. it had been thought that invisible angels moved the planets. he proved from his law of gravitation and his three laws of motion the truth of kepler's laws of ellipitical planetary motion. he demonstrated from data collected from the comet of 1680 that comets moved according to his law of gravitation. non-periodic comets were observed to follow hyperbolic paths. he used the concept of a common center of gravity as a reference point for other motions. the fact that the center of gravity of the solar system was within the body of the sun verified that the sun was indeed at the center of it. newton's "principia mathematica philosophia naturalis", was published in 1687. the church denounced it as being against the scripture of the bible. newton did not agree with the established church on many points, such as the trinity, and was considered a heretic. he had his own interpretations of the bible and doubted the divinity of jesus. but it was accepted for dissenters like newton to qualify for full civil rights by maintaining an outward conformity and taking the sacrament in the established church once a year. newton was given a royal dispensation from taking holy orders as prescribed by the rules for tenure of fellows of his college at cambridge university. he did believe in a god who created the universe and who had a ubiquitous presence in all space. when catholic king james ii tried to have a catholic monk admitted to the degree of a master of arts at cambridge university without taking the oath of adherence to the established protestant church, in order to participate in the business of the university, newton was active in the opposition that defeated this attempt. when newton's laws were applied to the paths of the moons of jupiter, it was noticed that the moons were a few minutes ahead of time at that time of year when jupiter was nearest to the earth and a few minutes behind time when jupiter was farthest from the earth. olaus roemer, a danish astronomer, postulated that jupiter's eclipses of its moons lasted seconds longer the farther away jupiter was from the earth because it took their light longer to reach the earth. he concluded that light does not travel instantaneously, but at a certain speed, which he calculated in 1676. in 1668, christian huygens formulated the law of conservation of momentum [mass times velocity], which held that when objects collide, they may each change direction, but the sum of all their velocities will remain the same. huygens also recognized the conservation of what was later called "kinetic energy", which is associated with movement. in 1690, he posited the theory that light consists of a series of waves. it states that all points of a wave front of light in a vacuum may be regarded as new sources of wavelets that expand in every direction at a rate depending on their velocities. he thought this a better explanation of bending and interference of light than newton's particle theory. in 1661, robert boyle, called the father of modern chemistry, defined an element as a substance that cannot be further decomposed and distinguished it from a mixture, which is easily separable, and a compound, which is not easily separable. he used a pump he developed and a glass jar to create a confined air space for experiments. he noted that burning objects such as candles and coal, when placed in the receiver of his air pump, went out after a time although air was still present. he opined that animals were dependent upon a fresh supply of air to live. he studied the relationship between the volume, density, and pressure of gases. he proved by experiment that the volume of a gas at a constant temperature varies inversely to the pressure applied to the gas. since gas is compressible, he opined that gases must be composed of discrete particles separated by void, and also that basic physical properties were due to motions of particles, or atoms, which was an ancient greek conjecture. this cast doubt on the theory that everything was composed from the four basic elements: air, water, fire, and earth. boyle's laboratory at oxford was denounced by the oxford clergy as destroying religion. in 1679, the steam pressure cooker was developed. robert hooke, the son of a minister who died when he was thirteen, helped boyle build his air pump. he was a genius with innate mechanical skill. he applied a spiral spring to regulate the balance of watches. a lord financed him as a gresham lecturer for 50 pounds a year. in 1666, he used a pendulum to measure the force of gravity and showed that the center of gravity of the earth and moon is a point describing an ellipse around the sun. in 1667, he explained the scintillation of the stars by irregular atmospheric refractions. he formulated the theory that light is composed of pulses. hooke's law states that the amount an elastic body bends or stretches out of shape is in direct proportion to the force acting on it. he invented the odometer, a wheel to measure distances. he constructed an arithmetical machine. he invented the universal joint, which can move in many angles. at his death, hooke had thousands of pounds stored in an iron chest. wallis wrote a treatise on algebra which was historical as well as practical. in 1668, he postulated the correct theory of impacts of inelastic bodies, based on the principle of conservation of momentum. during this time, he also deciphered enemy messages for royalty and was made a royal chaplain. royal astronomer and genius edmond halley, the son of a soap maker, studied tides, magnetism, and the paths of comets and stars. he went on voyages to study the heavens from different positions, thereby laying the foundations of physical geography. he showed that the stars change in position in relation to each other. with newton's help, he calculated the orbit of a comet he saw in 1682 to be elliptical rather than parabolic and then proved it was the same comet that had appeared in 1531 and 1607, indicating it's regularity; it was then named "halley's comet". however, the church of england still embraced the idea that comets and eclipses were evidence of god's wrath. greenwich observatory was built in 1675. halley used a barometer to measure the density of the atmosphere and related its readings to elevations into the atmosphere and to weather. he determined that the cause of the tropical trade winds was the sun warming the tropical air at the equator, causing it to rise blow away from the equator to replace cooler air. he illustrated the tropical winds with the first meteorological map. he made a descent in a diving bell, which was used to try to reach wrecked treasure ships. he compiled a table of mortality, which originated the science of life-statistics. he studied fossils and perceived them as remnants of living beings that had died long ago, and imagined a succession of living things. halley surveyed the tides and coasts of the british channel for the king in 1701. in 1675, apothecary nicolas lemery divided substances into mineral, vegetable, and animal. he wrote a dictionary of pharmaceuticals. john ray and francis willughby were friends who traveled together to study plants and animals respectively. john ray started the science of zoology with his edition of francis willoughby's "ornithology" on birds and his own "history of fishes". he also attempted the first scientific classification of animals in his "synopsis of quadrupeds". ray compared anatomies and experimented on movements of plants and the ascent of sap. he knew what fossils were. ray first suggested the concept of species in classification of animals and plants. he opined that the goodness and wisdom of god was shown not only by the usefulness of animals to man's uses as taught by the church, but also by the adaption of animals to their own lives and surroundings. the vast array and dispersal of animals found by world explorers all over the world cast doubt on the biblical story of noah putting two of every kind of animal on an ark. the science of botany began with ray's "history of plants", and the researches of robert morrison, who was charles' physician and keeper of his gardens. the idea from fossils that existing species of animals were modifications of predecessor animals conflicted with the religious belief that noah's ark had preserved all the varieties of animals. the idea that fossils were remnants of dead animals existing before man conflicted with the religious idea that adam's fall began sin and caused death. nicholaus steno, a danish physician, demonstrated in 1669 that layers of strata of rock are always deposited with the oldest layers on the bottom and the youngest layers on the top, which began the science of geology. john aubrey described stonehenge, thus founding prehistoric archaeology. he thought it to be a druid temple. the telescope and compound microscope, which has an objective lens and an eyepiece lens for producing a wide range of magnifications, were further developed. nehemia grew, the son of a grammar school master who later became a physician, observed and drew plant anatomy, including leaves, flowers, fruits, seeds, ovules, pollen grains, and stamens. he was the first to observe the existence of sex in plants. italian marcello malpighi, a physician, used the new compound microscope to study human skin, spleen, kidneys, and liver and also compared the livers of several types of animals. dutchman anton van leeuwenhock, a cloth manufacturer who made microscopes to inspect the quality of cloth, turned them to use in understanding the life cycles of mites, lice, and fleas. he correctly described human blood cells. when he found what he described as tiny animals (bacteria, protezoa, and rotifers), he sent clear descriptions of them to the royal society in london as proof against the theory of spontaneous generation, which held that lower forms of life could arise from nonliving matter. this started the science of bacteriology. the cellular basis of life was discovered. human blood vessels were examined. when the egg in the female reproductive system was discovered, the status of women was lifted. physician thomas willis, son of a farmer, dissected brains of men and animals to study the anatomical relations of nerves and arteries. excess urine had been associated with a wasting disease. willis identified diabetes mellitus with excess of urine with sweetness. physician thomas sydenham, son of a gentleman, observed epidemic diseases of london over successive years, thus founding epidemiology. he also furthered clinical medicine by emphasizing detailed observations of patients and maintaining accurate records. he wrote a treatise on gout and identified scarlet fever. he introduced a cooling method of treating smallpox. but he still relied on the big three treatments: bloodletting, purging, and sweating. blood-letting was to draw off bad blood so that it could be replaced by a better fluid. another treatment used was cupping, whereby a vacuum was created by heated glass cups to draw blood to the surface of the skin. john locke performed one of the first successful operations on a kind of abscess of a man's liver. it was common for people who felt ill to take a laxative and rest at home. in 1690, physicians opened the first dispensaries, which gave treatment and medicine together, to take business away from their rivals: the apothecaries. london's apothecaries were released in 1694 from jury service and serving as constable, scavenger, or other parish or ward office because it was necessary that they be available to attend the sick at all times. peruvian bark which had quinine as its alkaloid had been introduced as a proven cure for the ague, a fever with chills usually due to malaria, in 1653. the english ceased to believe in holy wells, but went to spas such as bath for treatment for disease. there was more bathing because private homes in towns now had indoor baths. the public baths came into disuse. for childbirth, only rich women were attended by physicians. most physicians used talismen such as the eagle stone at deliveries. caesarian section almost always led to the death of the mother. midwives were licensed by the church and could baptize babies. jane sharp wrote "the midwives book" with anatomical illustrations. women over thirty had fewer children and the last child born was at an earlier age than before. this was in part due to birth control such as coitus-interruptus, long breast-feeding of a current child and/or the taboo against sex if the wife was still breast-feeding. women who were rich often employed wet-nurses. babies seldom thrived, or even survived, without out a regular supply of breast milk. john locke, an oxford don, physician, and son of an attorney, expressed a view that the monarchy was based on a contractual relationship with the people. this idea which was first adopted by revolutionists and then became accepted as orthodoxy. furthermore, he articulated the right of resistance, the supremacy of legislative assemblies, and the responsibility of rulers to answer to their subjects. he theorized that men turn to forming a civil government when there is a need to protect accumulated property. this, along with the protection of life and liberty, was the primary function of government, before royal pleasure, national pride, or foreign conquest. he wrote theories on the interaction of supply, demand, interest rates, rents, coinage, and foreign exchange rates. he believed that interest rates should be the natural ones determined by market forces rather than by the legislature, especially if there was an attempt to lower interest rates underneath their natural rate, which was not only undesirable but easily circumvented. he thought that attempting to legislate contrary to natural economic laws, e.g. prices, was doomed to failure from unexpected consequences. he agreed with most mercantilists that by maintaining a large inflow of precious metals through consistent export of surpluses in foreign trade would lead to low interest rates, increased trade, increased capital stock, high employment, and high prices, and therefore a healthy economy and enrichment of the nation. john locke theorized that propositions have probability rather than certainty. his "thoughts on education" was a great book on the formation of character. locke also wrote about the large field for knowledge in labor-saving and economic inventions. he espoused freedom of thought in "letters on toleration" and wrote "an essay concerning human understanding", which described how the mind functions in learning about the world and which attempted to reconcile science and christianity. he was a great admirer and friend of newton and they shared religious views. he thought that knowledge comes primarily from experience rather than from the mind, so that observation and experimentation are necessary to find truth. immanuel kant from prussia, who became a professor of logic and metaphysics, was also impressed by newton's findings and expressed his philosophy that man has perceptions in space and time and can have some descriptive knowledge of his world by using purely intellectual concepts such as possibility, existence, necessity, and substance. he thought of god as theological perfection, and morality as practical perfection. the british primarily adopted the views of their own hobbes and locke, and bacon before them. at oxford and cambridge universities, there were the most enlightened theologians, classicists, orientalists, philologists, mathematicians, chemists, architects, and musicians. there were professors of anglo-saxon, hebrew, and arabic. john locke's influence caused modern philosophy to supercede traditional scholasticism. there were no more disputations to qualify for degrees. some of the students were the sons of noblemen and sat at meals with the heads, tutors, and fellows of the colleges. most students were the sons of landowners, clergymen, professional men, or prosperous men of business. they were known as the gentlemen commoner students. the few poor students were known as servitors and paid for their education by menial work. corporal punishment ceased. instead there were fines, suspension, and expulsion. fellows of colleges had common rooms for drinking and smoking together as they had done in taverns outside college walls. the king had authority to grant licenses in sell or give land in perpetuity, to encourage founding and augmenting colleges and schools. the two universities were vested with the presentation of benefices that had belonged to papists. english nonconformists such as presbyterians were excluded from oxford and cambridge universities, so they were educated at glasgow in scotland. grammar schools were blamed for the past civil war by educating too many people above their station, so ecclesiastical control now stifled them. a few dissenting schools were established. charity was given to schools for children of the poor for placement as apprentices, but not to educate them above their stations. in the 1670s, about 70% of males in london were literate. by 1680, illiteracy was a special characteristic of the poor instead of a characteristic of the vast majority of common people as in 1580. fountain pens came into use. many books written tended to be about the author's experiences, for instance samuel pepys' "diary", gilbert burnet's "history of my own times", john evelyn's lifelong diary with vivid descriptions of striking events of the day, and nonconformist celia fiennes' description of her tour of england on horseback. there were many political biographies. historians did not yet study history as a continuous process, but narrated self-contained stories to instruct by example. william fleetwood wrote about economic history in "chronicon preciogum". george hicks put together a "thesaurus" of the northern languages. thomas hyde wrote on ancient persian religion. john spenser compared jewish rites with those of other semitic people, thus starting comparative religion. richard bentley, william's librarian, wrote a "dissertation" on the ancient greeks. he compared the ancient greek life with modern life. he also confuted atheism on the newtonian system. a translated version of "critical history of old testament" by frenchman richard simon identified the old testament as history instead of divine revelation. john milton wrote "paradise lost", which retells the biblical story of the creation and the fall of adam and eve against the backdrop of satan's rebellion and expulsion from heaven and emphasized god's justice in spite of everything. the poem deals with the puritan struggling against evil and the problem of sin and redemption. it has a cold and severe conception of moral virtue and stoical self repression in its characters. there is no sympathy with the human condition. reading this book made the english more serious, earnest, and sober in life and conduct and more firm in the love of freedom. john bunyan wrote "pilgrim's progress" in which a tinker takes a journey to find the everlasting city of heaven and on the way meets people who try to harm him. but he derives strength from his adversities. the journey is a metaphor for the christian soul trying to find salvation. it is puritan in its sympathies and has insights into human nature. john dryden wrote on large social, political, and humanistic issues, often by political satire. william congreve wrote plays such as a comedy on manners. william wycherley wrote cynical satires and portrayed folly, affection, and vice. john vanbrugh wrote plays satirizing london high society and social institutions. john toland wrote "christianity and mysterious" on deism. "puss in boots", "red ridinghood", and "cinderella" became available in print. there were many female poets, bookwriters, and playwrights. anne finch, later vicountess conway, wrote the philosophical book: "principle of the most ancient and modern philosophy" to reconcile the new science with christian belief. in it every creature had a body and a spirit. mrs. aphra behn wrote "oroonoko", one of the first novels. basua makin, governess of the little sister of charles ii wrote an essay to revive the education of women, arguing that women's activity in wartime showed that they were fit to be educated. elizabeth elstob, who studied teutonic languages, was one of the founders of women's education. mary astell proposed a college for women. some women painted portraits. there were rigid censorship acts from 1662 to 1695. the first required that no one could print a book without first registering it with the company of stationers of london and having it licensed by appropriate authority: common law books by the lord chancellor or the lord keeper of the great seal, affairs of state and history books by the secretaries of state, heraldry books by the earl marshall or kings of arms garter, university books by the chancellor or vice chancellor of either of the universities, and all others including divinity, physics, and philosophy by the archbishop of canterbury, or bishop of london. books could be imported only into london and not sold until approved by the archbishop of canterbury or bishop of london after being opened and viewed by a scholar appointed by these bishops and a representative of the company of stationers. if heretical, seditious, scandalous, schismatic or otherwise dangerous or offensive, the importer could be punished. no one could print or import copies of any books without consent of the owner with right by letters patent. the penalty for not doing so was to forfeit 6s.9d. for each such book, of which the king would receive one half and the owner one half. printers had to set their own name to the books they printed and also the name of the author or forfeit such book. only freemen of london who were members of the company of stationers could sell books. the company of stationers had the authority accompanied by a constable to search all houses and shops where they knew or had "probable reason" to suspect books were being printed. they could search houses of persons of other trades only by special warrant. they could examine books found to determine if they were licensed and, if not, to seize them. justices could imprison offenders. the first offense by offending printers was to be punished by suspension from printing for three years, the second offense by permanent disallowance from printing, fine, imprisonment, and corporal punishment not extending to life or limb. this statute was enforced by frequent prosecutions, such as of publishers of pornographic books. the only newspapers to appear between 1660 and 1679 were official government sheets. but in 1695 freedom of the press was established by the abolition of the licensing of publications, including newspapers. locke had argued for this freedom, stating "i know not why a man should not have liberty to print whatever he would speak and to be answerable for the one just as he is for the other..."in 1702 the first daily newspaper in the world came into existence in england. the stationer's company monopoly of printing also ended in 1695. printing was not regulated and no longer criminal just because it was unauthorized. printing could be done in other places than london, york, oxford, and cambridge. the rich got richer and the poor got poorer. many successful merchants and manufacturers bought landed estates and established a line of country squires or baronets or even peers. the fashion started in the nobility and the richest mercantile families that their wives should become ladies of leisure. for workers though, there was constant underemployment. in periods of economic crisis industrial workers lost their jobs. much work was seasonal. anyone who could work most of the time was fortunate. laboring and outservants, who comprised one fourth of the population, and cottagers and paupers, who comprised another fourth of the population, had to spend more than they earned. the poor rate collected for the cottagers and paupers was 3d. per week. there was an agricultural depression that was deepest in the 1680s after the collapse of a boom. it was the only bad depression experienced in peace time. there was famine in 1698. any person receiving relief from any parish and his family members cohabiting with him was required to wear a badge with a "p" which identified his parish. this was to differentiate them from idle, sturdy, and disorderly beggars who were not entitled to relief. there were more poor people and, despite the poor laws, many became rogues or vagabonds or starved to death. many went from parish to parish to build cottages and consumed all the wood there and then went to another parish. so the parishes were allowed by statute to remove any person coming to settle in any tenement under the value of ten pounds who was likely to be chargeable to it. they were then removed to the last parish were they had resided for at least forty days. excepted were people temporarily moving to another parish to work at harvest time. the overall effect was to decrease the mobility of people. but a later statute permitted greater movement of poor people by allowing those who were poor for want of work to go to another parish where labor was wanted. they had to bring a certificate of their present parish membership to the new parish, where they could settle if they rented a tenement worth ten pounds a year or served in a parish office. later, settlement had to be given to inhabitants paying its rates, and unmarried inhabitants hired for one year, and apprentices bound by indenture. but parishes were displeased with the requirement to give settlements to these people because they feared they would become poor and need parish assistance, thereby increasing the rates to be paid. parish poor houses were converted into spinning schools to obtain an income. parishes of large towns were combined to set up large workhouses, where the poor could be set to unskilled manufacture, but the managers lacked the character and education to make them work. because prisoners often died before trial and the poor prisoners became instructed in the practice of thievery in prison, they were set to work on materials provided to them at public expense. no parish was rated at more than 6d. per week for such. the president and governors of corporations oversaw rogues, vagrants, sturdy beggars, and idle or disorderly persons working in corporations or workhouses. assessments were made for building and repairing gaols in order to maintain the health and safe custody of the prisoners. also, gaol fever, a virulent form of typhus, was so prevalent in the large prisons for criminals and debtors that it frequently spread through the adjacent towns. during some assizes, it killed sheriffs, lawyers, and justices. in 1692, london lands were taxed for the relief of orphans. churchwardens could seize the goods and chattels of putative fathers and mothers deserting bastard children. from 1691 to 1740, societies for the reformation of manners prosecuted poor people for moral offenses. all hackney coaches and stage coaches in all the realm became required to be licensed. the turnpike system came into use. tolls were paid for road upkeep and repair by private companies. the local parishes ceased to have this responsibility. john ogilby wrote the first road book based on actual surveys of the roads. stage coaches cost a shilling for every five miles and went 40-50 miles a day. the trip from london to oxford was twelve hours. the company of coach and coach harness makers was founded with the consent of the king. the body of a coach hung from the frame by leather braces. one axle pivoted for turns. plate glass was used in the windows. rivers improved so that most places were no more distant from navigable waters than a long day's haul on land. the several post offices were put under the authority of one postmaster general appointed by the king for the purpose of speed and safety of dispatches, which were carried by horseback. one sheet letter going less than 80 miles cost 2d., and more than 80 miles, 4d. when the army was disbanded after the restoration, its officers and soldiers were allowed return to their trades and their apprenticeships without serving the usual seven years. parishes were required to provide for poor and maimed officers and soldiers who served charles i or charles ii. the royal hospital founded by charles as a home for veteran soldiers opened in 1692. greenwich palace was converted to a hospital for seamen and their widows and children to encourage men to become seamen: mariner, seaman, waterman, fisherman, lighterman, bargeman, keelman, or seafaring man in the king's navy. also, disabled seamen's children were to be educated at the expense of the hospital. charles retained one regiment from which he started a small standing army, which slowly increased in size ever after. the army was primarily mercenary, as it had been in medieval times, with officers buying their commissions. colonels were the proprietors of their regiments and captains were the proprietors of their companies. the soldiers were ill mannered, swearing and cursing and stealing, sometimes from peoples' homes, and intimidating people with their swords. the bayonet was invented to attach onto a gun, which were muzzle-loading with a match lock. so pikemen with their long spears became obsolete. hand grenades and small explosive bombs came into use about 1670. explosives were also used in mines. there was resort to many devices to fund wars. the land tax was still the primary tax. the customs and excise taxes were often extended to more goods and wares. sometimes there were duties imposed on marriages, births, and deaths. also, hawkers, peddlers, and other trading persons going from town to town to other men's houses on foot or on horse carrying wares had to buy a license. there were also loans from privileged companies such as the bank of england, east india co., and the south sea co. commissioners were appointed to take and state the account of all money in the public revenue. this discouraged the prevalent corruption of government officials and thereby the people were encouraged to pay their taxes. the goldsmiths loaned money to the king and to private persons and to the exchequer. receipts from goldsmiths for storage in strong boxes had become a de facto paper currency. but when the goldsmiths had no more money to lend, the bank of england was founded in 1694 under whig auspices to provide money for war. it was the first institution to issue notes in excess of its total deposits. however, it was not allowed to lend money to the crown without the consent of parliament. it was incorporated as the first english joint-stock bank and had about 1,300 shareholders. these original subscribers were individuals from london from many walks of life, including well-to-do tradesmen and about 12% of whom were women: wives, widows, or spinsters. not many corporations were original subscribers. holders of at least 500 pounds could vote, of 2000 pounds could be directors, and of 4000 pounds could be governor. the bank issued notes payable to bearer and discounted bills, but these were not legal tender. it lent at 8% to the crown and occasionally to corporations. money was also borrowed by offering annuities on single lives. this was the first time the government borrowed directly from the public on a longterm basis. in 1695 there was inflation due to over issue by the bank because of inexperience, pressure from government, and the bank's greed for business. after a dividend of 5% in 1695, the next year there was no dividend and so the bank stock price fell. in 1696, five pound and ten pound short term bonds were sold to the public. also in that year was the first run on the bank. this occurred two days after clipped money lost currency; people wanted the new recoined money, but the mint had not supplied the bank with sufficient supplies. interest instead of cash was given for notes. cash was short for months. the bank's credit was much shaken. it was then given a monopoly so that its notes would not have competition. thereafter, its dividends were good about 12% per year. because of its monopoly, its dividends were about 3% above the current going rate of interest. about this time, exchequer bills, with interest, were started by the exchequer and circulated by the bank of england. they were frequently endorsed many times by successive holders. the bank simply took over from the goldsmiths its main everyday business of deposit; running cash note [cashier's note, specie note, cash note], which was payable on demand and normally did not bear interest; and drawn note [precursor to the check, but not on special paper]. the bank gradually convinced many of its clients to use its "check" [cheque] paper when drawing. the check paper was unique to the bank and embellished with distinctive scroll work to serve as an obstacle to fraud. over time the running cash note tended to be for round sums of at least twenty pounds and multiples of five pounds. the bank of england had a monopoly on issuing notes in the london area. country banks arose and issued bearer notes payable on demand and interest-bearing notes in their areas. the bank of england gave to its depositors the service of paying annually to a designee without further order. a decision of the common law courts held that bills of exchange (written orders to pay a given a sum on a given date) were transferable to other people by successive endorsements. so long distance payments no longer had to be made in coin, with all the dangers of highway robbery. the financial revolution of the 1690s meant that the merchant elite could invest in government bonds or company bonds at 5-6%, or london leases at 10%, as opposed to income from landed estates, which was under 3%. shareholders were no longer personally liable for company losses. interest on loans was no longer considered sinful as long as it was not oppressive. the greater ability to borrow spurred the growth of capitalism. all brokers and stock jobbers in london and westminster of bank stock, bank bills, shares and interests in joint stock must be licensed by the mayor, which shall necessitate their taking an oath to exercise their office without fraud or collusion to the best of his skill and knowledge as of 1697. this is to avoid the collusion of fixing values to their own advantage. the science of statistics made life insurance possible. but it was administered by ad hoc offices rather than companies and was not reliable in making payments. charles instituted a hearth tax of 2s. per year in 1662, with constables and offiers authorized to verify the number of hearths and stoves in houses. it was repealed in 1688 because it could not be enforced except by exposing every man's house to be entered and searched at pleasure by persons unknown to the people, which was oppressive and a badge of slavery. by bribes, charles built up a body of support in parliament which could be relied upon for a majority. they came to be called "tories" by their opponents. "tory" had been a term of abuse for irish catholic bandits. the tory and whig groups were known by their disagreement over the authoritarianism of the crown. the tories were sympathetic to the doctrine of divine right and favored a doctrinally high church. the tories represented landed property and the established church, and usually wore blue in contrast to the purple of royalty. many royalists became tories. the whigs refused to accept the sacrosanct character of the monarchy. the whigs opined that government depended upon consent of the people and that the people had a right of resistance. they subordinated the crown to parliament. the whigs represented the dissenters and the mercantile classes, and often wore red. many former puritans became whigs. "whig" had been a term of abuse for scots presbyterian rebels and horse thieves. the gout and venereal disease were common among political leaders. a primitive condom just introduced to the aristocracy from france helped deter syphillus; it was uncomfortable and unreliable. under charles ii, the treasury as a supreme financial body separated from the exchequer as a depository of revenue. a gold guinea coin was issued. from 1690, government policy was controlled by specific appropriations. money bills had to originate in the commons, and could not be amended by the house of lords. boards became independent of the king's privy council and answerable to the secretary of state. in the 1680s, charles compelled some of the livery companies in london to give up their charters to him and he called in many corporation charters of boroughs whenever some light excuse could be found to justify it. this was done by the use of the writ of quo warranto before a court. in london he had the tory mayor revive an ancient custom of selecting a sheriff by drinking to him at the annual feast. two tory sheriffs were installed into office. all these actions gave the king a voice in selection of the officers of london and boroughs, since royal commissioners would then determine who the officers would be. this was to assure london's representation in parliament by crown loyalists as london had been whig. it also allowed influenced selection of sympathetic jurors. criminal seditious libel was brought into the common law courts in 1664, when benjamin keach was tried for writing a book containing contradictions of the doctrine of the established church. he wrote against infant baptism and asserted that laymen might preach the gospel. the justice intimidated the jury to find him guilty. he was sentenced to be fined, to spend two hours in the pillory in two successive weeks, and his book to be burned before his face. he was to be imprisoned until he found sureties for his good behavior and renunciation of his doctrine and for his future appearance in court. juries were loath to find anyone guilty of seditious libel. james ii succeeded charles ii to the throne and fostered roman catholicism by appointments and by attempting to suspend laws unfavorable to catholics. he commanded all bishops to read in the churches his declaration of indulgence exempting both catholic and protestant dissenters from all penal statutes based on religion. seven bishops refused to obey and jointly petitioned him, stating that his action was illegal according to parliament. he prosecuted them for seditious libel in the petition. the jury found them not guilty. james discharged the two justices of the five who had rejected the seditious libel doctrine which had been created by the star chamber court. this roused the whigs and tories in turn to discharge him by joining in inviting protestants william of orange and mary to take the throne in his place. james was effectively chased out of england by william's advancing army in the glorious revolution of 1688-9, which took away the powers of final authority from the king, but without transferring them to any other body. a "bill of rights" stated that 1. the king may not suspend laws or dispense with them without consent of parliament. 2. the establishment of a court of commissioners and like bodies for ecclesiastical causes is illegal. 3. the king may not levy money or extend an authorized levy without consent of parliament. 4. subjects have a right to petition the king without prosecution. 5. the king may not raise or keep a standing army within the country in time of peace without the consent of parliament. 6. protestants may have arms for their defense as allowed by law. 7. the elections of members of parliament should be free. 8. the freedom of speech or debates or proceedings in parliament should not be impeached or questioned in any court or place outside of parliament. 9. excessive bail should not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted (so no more men were whipped to death) 10. jury selection should not be tampered with, and jurors who try men for high treason should be freeholders. 11. all grants and promises of fines and forfeiture of particular persons, before conviction, are illegal and void. 12. parliament should be held frequently for redress of grievances and for the amending, strengthening, and preserving of the laws. 13. all protestants may freely exercise their religion and the king will maintain the protestant religion and the law and liberty of the realm. the right of the peoples' representatives to select and depose the king and to change the order of succession was established. there was no divine right or hereditary right to the crown. an english monarch was created by an act of parliament. the king still called and dissolved parliaments, except that parliament continued for six months after the death of a king. from 1689, parliament sat every year. freedom of speech for members of parliament was established by a resolution overturning a king's bench felony conviction of sir john elliot. by the act of settlement of 1701, no officer or pensioner of the king could be a member of parliament. all resolutions by the privy council had to be signed by the members consenting to them. no one born outside the realm could be a member of the privy council or of parliament, or could have any civil or military office or place of trust, or any grants of land or tenements from the king. justices served during good behavior instead of at the pleasure of the king. after the glorious revolution, tories tended to accept of the whig principles of limited constitutional monarchy instead of rule by divine right. under william and mary, the ministers were first chosen by them but could be impeached by the commons and then removed by the parliament. the commons removed anyone who disagreed with them as soon as he made a mistake. but the king could pardon anyone convicted by parliamentary bill of attainder. this was inconsistent, so no one was allowed to plead pardon by the king in an impeachment by the commons. thus parliament gained control of who would be ministers. the glorious revolution favored the capitalists and the commercial magnates even though it had been started by the landed families, with whom they now intermarried. there were companies in the fishing, silk, baize [a coarse wool], sugar, rope, paper, iron, hardware, gunpowder, saw milling, and pottery trades. the largest pottery workshops employed about six men. one man shaped the pots, another made the handles and put them on, while the others did the decoration, the glazing, and the firing. new companies could be formed without royal or parliamentary consent. there were no more commercial monopolies. regulated companies declined. the merchant adventurers lost their last monopoly privileges; their entrance fees were abolished. their method of limiting the volume of their exports of english cloth to germany to keep up prices was obsolete. now they tried to capture the market by selling cheap. there were more joint-stock companies and on a larger scale. they also no longer restricted output to keep prices high, but geared to export many inexpensive goods. the stock exchange was incorporated about 1694. the domestic or "putting out" system came into use. in this system, the worker usually owned his own machinery and the capitalist owned the material, which he put out to the worker at home. the merchant manufacturer bought raw wool and had it carded, spun, woven, fulled, and dressed at his own expense. some farmers became spinners in the winter when outside work was impossible. the manufacture of nails was also done by this system. accordingly, the guilds and municipal corporations in towns ceased to control the recruiting, conditions of work, and pay of industries. new industries for the manufacture of silk, paper, and cutlery were organized on capitalist lines rather than being subject to guilds. that is, production was controlled by men with money and the means of manufacture. only a quarter of 200 towns had any organized guilds at all. growing birmingham was not a chartered borough, so never was encumbered with guild regulations. the guild and apprentice regulations were effectively enforced only in agriculture. artisans became known as tradesmen. work was usually irregular, some seasonal. in bad years, when a worker had to borrow money, he used work tools, such as his loom, as security. in this way, work tools often became the property of a merchant. some merchant clothiers also owned a fulling mill and a shop where it was sold. the capitalists first became owners of the materials, then of the implements, and then of the work places. but production was still confined to the known wants of its habitual market. men used to working at home were generally not inclined to go to work in a factory. so there was an assortment of unskilled factory labor, such as country people driven from their villages by the growth of large estates, disbanded soldiers, and paupers. they had to be taught, trained, and above all disciplined. in 1670, vauxhall glass works were opened with workmen brought from venice to blow their fine glass and make mirrors. the capitalist organization of the mining, glass manufacture, salt, soap, wire and other monopolized industries was made possible only by government support. from the mid-1500s to 1700, coal production increased fourteen times. sir ambrose crowley, an iron maker with coal works, established disability and medical benefits and pensions for his workers. smiths used trip hammers powered by water mills which turned an axle with cams on it. they made iron gates, fences, balconies, and staircases with hammer, anvil, and chisel. cast iron was made by running liquefied metal into molds. this was harder but more brittle than the tough but malleable wrought iron. tinkers went from house to house to repair metal items such as pots and pans. salt and glass manufacture expanded. glass drinking vessels were in common use. mirrors of blown plate glass were manufactured in england. some plate glass by casting was imported. plate glass was a large and strong glass piece, which was formed by the liquid glass being poured on a table. this glass was not distorted, so mirrors could be made perfectly reflective. then plate glass for coaches, mirrors, and windows became manufactured in england; this new industry was organized on capitalist lines. the east india company had about half the trade of the nation. its shares were frequently bought and sold. it responded to anger over its semi-monopoly status by granting liberty to all english subjects below the age of forty to live in its indian settlements and to trade practically everywhere. bombay, india became subject to the east india company. charters gave the east india company the right to coin money, to exercise jurisdiction over english subjects, to levy taxes, to build and command fortresses, to command english and indian troops, to make peace and war, and to enter into alliances with indian rulers. the company always paid high dividends and the market price of its shares generally rose. 100 pound stock was worth 130 pounds in 1669, 245 pounds in 1677, 280 pounds in 1681, 360 and even up to 500 pounds in 1683, and 190 pounds in 1692. in 1693 a new charter for the company included loss of monopoly status by resolution of the commons. with this resolution, parliament assumed the right of regulating commerce, now no longer the king's province. thereafter the commons regulated trade with india and determined who could participate in trade there. political issues developed, which initiated corruption at elections by entertainment and bribes to candidates, which was later proscribed. the trade opened up to many more traders and investors. ordinary investors came to include women and quakers. when there was a surplus of grain, it was exported. about 1696, the king set up a board of trade of eight paid members and great officers of state, who nominally belonged to it, and a staff. this was to achieve a favorable balance of trade. for instance, it imposed tariffs to protect internal markets and put restraints on imports of goods producible in the country, e.g. live cattle, dairy products, and woolen goods. it also restricted the export of raw wool. england led the way in protectionist measures. exports included grain, silk, metal wares, foodstuffs, lead, and tin. cloth and manufactures were exported to america. dyeing and dressing of cloth became the norm and undressed cloth exports fell sharply. imports included linen, flax, hemp, timber, iron, silk (raw, thrown, and woven), wine, brandy, fruit, coffee, chocolate, cauliflower, and oil. from america came molasses, sugar, tobacco, and dyes. the east india company imported calico, silk, pepper, spices, china tea, potions, and saltpeter. tonnage of english shipping doubled by 1688. exports and imports increased 50% by 1700. parliament required an oath of allegiance to the new sovereigns william and mary from all those in public functions, including the clergy. by extending this rule to the clergy, parliament asserted a supremacy of parliament over the church. it also asserted a supremacy over the king by requiring all monarchs to take a coronation oath promising to govern according to the statutes, laws, and customs of parliament, to make judgments with law and justice in mercy, and to maintain the protestant religion established by law. drinking of gin, which had first been made by a flemish physician, became popular under king william, who was dutch. the year of his accession, the gin monopoly ended. england competed with other nations for land in the new world. carolina, named for charles ii, was colonized for commerce in 1663. the episcopal church, an analogue of the church of england, was established there by law. the whole coast became english after war with the netherlands gave new york, named for charles ii's brother the duke of york, and new jersey to england in 1667. presbyterians and baptists fled from religious tests and persecutions in england to colonize new jersey. for free passage to the english colonies, people became indentured servants, agreeing to serve the master of the ship or his assigns with a certain kind of labor for a term of a few years according to a written contract made before departure. also, various statutes made transportation to any part of america to the use of any person who will pay for his transportation, for a term of years, usually seven, a new possible penalty for offenses. in 1636, harvard college was founded in new england to advance literature, arts, and sciences, as well as to train ministers. in 1682, quaker william penn, son of an admiral, founded the colony of pennsylvania for quakers in a "holy experiment" in political and religious freedom. the king had granted proprietary rights to this land to him to discharge a crown debt to his father. when penn refused to take off his hat before king charles and asked why charles took off his own, charles, unruffled, replied that "it's the custom of this place that only one man should remain uncovered at a time". the pennsylvania charter of 1701 went beyond magna carta and england's law in guaranteeing right to counsel and giving a right to defendants to summon witnesses in all criminal cases. it gave penn absolute authority and he established liberty of conscience (freedom of religion) and freedom from arbitrary arrest. in 1751, some quakers founded a small hospital in pennsylvania as an asylum for the insane, where they would be treated humanely. proprietary colonies, in which an individual or syndicate held under the crown a sort of feudal overlordship, were founded in america: namely, virginia, maryland, carolina, new york and new jersey in 1663, and pennsylvania and delaware in 1682. new hampshire was made a royal province in 1680 to cut off the expansion of massachusetts, which had been avoiding the trade laws. these colonies were distinguished from the corporate colonies of massachusetts, plymouth, connecticut, and rhode island, which made their own arrangements for internal government without a royal executive. charles persuaded the chancery court to declare the charter of massachusetts void; it was given a new charter in 1691 which made it a royal province. new york was made a royal province in 1691. maryland's proprietor gave way to a royal governor in 1692. soon all colonies except rhode island, connecticut, pennsylvania were royal provinces, with governors nominated by the crown. this bringing of union to the colonies was done for maintenance of order, to coordinate defense, and to enforce trade laws. in 1670, the hudson's bay company was incorporated to engage in fur trade with indian trappers in the hudson bay and to find a northwest passage to china. in 1701 the founding of the "society for the propagation of the gospel in foreign parts" by the church of england created many missionaries in the colonies, where they called their churches "episcopalian". increase mather and his son cotton mather were puritan ministers in boston. increase was for a time the president of harvard college and participated in obtaining the new charter of massachusetts of 1691. he and his son tried to maintain the principles of the puritan founders of massachusetts, which included the theories of diabolical possession and witchcraft. but the thought of presbyterians, anglicans, and baptists became influential also. in 1692 in the small town of salem, massachusetts, some hysterical girls showing strange spasms and sounds charged they had been bewitched by certain other residents. victims were deluded, flogged, or tortured into forced confessions and then excommunicated from the church. they were then hanged and their property confiscated. one man endured being pressed to death for refusal to plead so that his property would be inherited by his family rather than confiscated. eventually, some prominent citizens including judges were accused. then the more thoughtful people began to doubt the whole phenomenon and admitted error. the excommunications were revoked. cotton mather came to accept newton's science and advocated inoculation. he encouraged puritanism into a simpler piety and charity. this influenced american protestantism toward a generalized concern with good works, morality, and social leadership. the law any sale of land or lease or estate of freehold or copyhold shall be in writing and signed. an interest in land given orally shall have only the force of estates at will. all contracts for sale of goods or merchandise for the price of at least 10 pounds shall be in writing and signed by the parties or shall be accompanied by part payment or partial acceptance of the goods. this is to deter fraud. this statute caused many small freeholders, including yeomen, who paid rent by custom to be dispossessed. mortgagees can hold the land of any mortgagor who borrows money upon security of the land or obtains another mortgage without prior notice to the initial mortgagee. the mortgagor has six months to pay off the mortgage and all interest and charges or vacate the land and lose his equity therein. but a widow's dower will not be affected if she did not join with her husband in the mortgage. if rent is not paid in a reasonable time, the renter's goods and grain may not only be distrained, but sold. one coparcener of a joint tenancy or tenancy in common may have a court partition the property without the presence of other coparceners, because such coparceners are often difficult to find. this is to avoid wasting of land lying uncultivated and unmanured. after the intestate death of a father of any sons or daughters without wives or children of their own in the life time of their mothers, the mother and every brother and sister shall share equally except the customs of london and york shall not be affected. administrators have to make an inventory. they have to account on request by an interested person. they must be bonded by two sureties. executors and administrators of estates of deceased persons must pay the debts of the deceased person rather than waste or convert the goods and chattels to their own use. creditors may recover their debts from heirs or devisees of the will of a debtor. men gone beyond the sea who could not be accounted for were deemed dead after seven years, so their life estates could be terminated. whereas lawful games are not to be used as constant callings for a livelihood, and young people are deceived and debauched and their money taken, anyone "winning" money by deceitful or fraudulent gambling shall forfeit three times his "winnings". when a bill of exchange drawn to at least five pounds is not paid on demand at the time it is made payable, the person who accepted it may make a protest in writing before a notary public, which shall be served on the maker of such bill, who must pay it and all interest and charges from the date of the protest. but if a bill of exchange is lost or miscarried, another shall be given in its place. no one may take more than 6 pounds in interest for a 100 pound loan. persons seeking election to parliament may not give or promise money, meat, drink, entertainment, present or gift to any elector. because the gaols were full of people in debt due to the late unhappy times such as the london fire, all prisoners for debt were to be released upon taking an oath that they had no property over ten pounds nor had disposed or conveyed property to defraud creditors. creditors not wanting them released had to contribute to their maintenance in gaol. the making or selling of fireworks is forbidden or forfeit 5 pounds. firing or throwing such from one's house onto or across the street is a common nuisance with a penalty of 20s. this is to avoid the loss of life and of eyes. treason to the king is to compass, imagine, or intend death or any bodily harm tending to death, or maiming or wounding, or imprisonment, or restraint as well as trying to depose him or levy war against him. also included is printing, writing, preaching, or malicious speaking. traitors shall suffer death and forfeiture as in high treason. any malicious and willful burning or destroying of stacks of hay, grain, or barns, or killing any horses, sheep, or cattle at nighttime shall be felony and punished by transportation to the american colonies for seven years. any person apprehending a thief or robber on the highway will be rewarded 40 pounds from the local sheriff, to discourage the many robberies and murders which have made travel dangerous. also, executors or persons murdered while trying to apprehend a robber shall have the reward. no more than 20 people may petition the king nor more than 10 people may assemble to present a petition to the king, because more has been tumultuous and disorderly. anyone may without fee set up a hemp business including breaking, hatchelling [separating the coarse part and broken pieces of the stalk from the fine, fibrous parts by drawing the material through long iron teeth set in a board], and dressing it or flax; making and whitening thread, spinning, weaving, making, whitening, or bleaching hemp or flax cloth; making twine or nets for fishing or stoveing of cordage; or tapestry or hanging because the daily importation of such has in effect taken the work from the poor and unemployed of england. retailers of wine may not add to imported wines cider, honey, sugar, molasses, lime, raisin juice, or herbs. butter sold must be of one sort and not contain bad butter mixed in with good butter. butter pots must bear the name or mark of their potter. salt may be sold only by weight, to avoid deceit by retailers and wrong to buyers. no sheep, wool, woolfels, shearlings, yarn, fuller's earth, or fulling clay may be exported as has secretly been done, so that the poor of the realm may have work. fishermen may sell their fish to others than fishmongers at billingsgate fish market because the fishmongers have forestalled the market and set their own prices. the buyers of such fish may resell them in any other london market by retail, except than only fishmongers may sell in shops or houses. no tanned or untanned skin or hide of any ox, steer, bull, cow, or calf may be exported because the price of leather has risen excessively and leather workers can't get enough raw material to carry on their trade and because poor people cannot afford leather items they need. the newly incorporated company of silk throwers (drew the silk off the cocoon) employs many of the poor, but others practice the trade, so an apprenticeship of seven years is required to practice the trade in the realm. winders or doublers who purloin or embezzle and sell silk from the thrower who employs him and the buyer of such silk shall make such recompense as ordered by a justice of the peace or be whipped or set in the stocks for the first offence. the regulation of the silk throwers company restricting the number of spindles to be worked at one time is voided because it has taken livelihoods away and caused foreign thrown silk to be imported. buttons on garments must be made of silk, mohair, gimp, and thread and by needle to keep employed the many throwers, twisters, spinners, winders, and dyers preparing the materials for these buttons. no button may be made of cloth or wood. no tobacco maybe grown in england because the colonies would be discouraged from growing it and the king would not receive customs from it. no goods are to be imported to or exported from america, asia, or africa except in english ships, with masters and 3/4 of the mariners englishmen. no manufacture of europe may be imported into any colony or territory except shipped from england in english ships manned by englishmen. as of 1672, if bond is not given for colonial exports of sugar, ginger, tobacco, cotton, indigo, cacao nuts, or fustic [tree that yields a yellow dye] and other dyewoods going to england, a duty must be paid. as of 1696, no colonial goods are to be imported or exported or carried from from one colony to another, except in ships owned and built in england, ireland, or the colonies with the masters and three fourths of the mariners from such places. these navigation acts were strictly enforced. only persons with lands and tenements or estate worth over 100 pounds per year or having a lease of at least 99 years worth 150 pounds per year and owners and keepers of forests or parks may have any guns, bows, greyhounds, hunting dogs such as setting dogs, snares, or other hunting equipment. these persons may kill hare, pheasants, partridges, and other game. gamekeepers authorized by justices of the peace may search houses and outhouses and seize unlawful hunting equipment. if hunting equipment or game is found in a house without good account to the justices of the peace, they shall impose a fine of 5s. to 20s., one-half going to the informer and one-half going to the poor of the parish. anyone killing, hurting, or taking away deer from any forest or park or other ground without consent of the owner or custodian shall pay a 20 pound fine. this was later increased to 20 pounds for hunting deer and 30 pounds for wounding or killing deer, with the pillory for one hour on market day and gaol for a year without bail for those who couldn't pay. any person privately and feloniously stealing any goods, including horses, by day or night, in any shop, warehouse, coach stable, or stable, whether there is a break-in or not, and whether or not the owner is present, or anyone assisting or hiring such person may not have benefit of clergy. any person who apprehends and prosecutes such person is discharged from parish and ward offices. an offender being out of prison who informs against two other offenders who are convicted is to be pardoned. any person convicted of theft or larceny and having benefit of clergy is to be burnt in the cheek nearest the nose instead of on the hand. army officers or soldiers who desert or mutiny shall suffer death or such other punishment as decided by a court martial of senior officers rather than the usual form of law, which is too slow. seamen not showing up on board after notice shall serve six months without pay, but shall not suffer as deserters. seamen do not have to perform service in the army. pirates may be punished by death and loss of all lands and chattels. any person aiding, advising, or concealing pirates may be likewise punished. officers and seamen killed or wounded in the defense of a ship or who seize or destroy pirates may be paid by the owners an amount up to 2 pounds per 100 pounds of freight as determined by a group of disinterested merchants and the judge. the amount due to a man killed will be paid to his widow and children. this is to be done when the ship arrives in port. any person who informs of any combinations or confederacies planning to run away with or to destroy a ship shall be rewarded by the commander or master of such 10 pounds for a ship 100 tons or under, and 15 pounds for a ship over 100 tons. the trial may be in england or the american colonies, whose authorities may issue warrants for arrest of alleged pirates. deserters from ships, because they often become pirates, shall forfeit all wages. masters forcing any man fit to travel to stay or shore or willfully leaves him behind shall suffer three months in prison without bail. persons may mine for ores on their own land, but must turn it over to the king who will give compensation for it, including gold, silver, copper (16 pounds per tun), lead (9 pounds per tun), tin (40s. per tun), and iron (40s. per tun). the fine for having, buying, or selling clipped coins is 500 pounds, one-half going to the informer, and one-half going to the king. the offender shall also be branded in the right cheek with the letter "r". he shall be imprisoned until he pays the 500 pounds. no hammered coins are lawful. anyone except a smith in the king's mint making tools or presses or other machines that can make counterfeit coins or having such which were stolen from the mint shall be guilty of high treason. by statutes of 1660 and 1662, when goods have been carried off ships without customs being paid, the chief magistrate of the place where the offense was committed or the adjoining place, or the lord treasurer, or a baron of the exchequer may, upon oath, issue out a warrant to any person to enter, with the assistance of a sheriff, constable or other public official, any house, shop, cellar, warehouse, or room in the day time where the contraband goods are "suspected to be concealed", and in case of resistance, to break open doors, chests, trunks, or other packages and to seize such goods, provided that if the information whereupon any house is searched proves to be false, the injured party shall recover his full damages and costs against the informer by action of trespass. this was extended to the colonies in 1696. the penalty for cursing or swearing by a servant, day laborer, soldier, or seaman is 1s. for others, it is 2s. the fine is doubled for the second offense, and tripled for the third offense. if an adult offender can't pay, he shall be put in the stocks for one hour. if a child offender can't pay, he shall be whipped by the constable or by a parent in the presence of the constable. the equity courts are conceding limited proprietary rights to married women by enforcing premarital settlements or trust arrangements that designated certain property as a wife's separate estate and exempted it from control by the husband. such protective devices generally reflected a father's desire to shield his daughter from poverty and benefited only the landed aristocracy in practice. also, husbands are not allowed to punish and beat their wives as before. but the lower rank of men were slow to give this up. a wife could have the security of the peace against her husband. he could restrain her liberty only for gross misbehavior. in 1685, the courts ruled that apprenticeships were necessary only for servants hired by the year, thus exempting most wage laborers. there were many variations in religious practices for statutes to address. the quakers and baptists were opposed to any state church. the independents and presbyterians accepted the idea of a state church. the members of the established church and roman catholics adhered to the state church as it had been for them in the past. atheism had a bad reputation. in 1662, the jews established the first synagogue in london. the privy council recognized their religious status as long as they were peaceful and obeyed the laws. they engaged in pawn-broking as well as money-lending. there were various statutes enacted over the course of time regarding religion, as follows: all ministers, school teachers, mayors and other town officials, including magistrates, were required to take the oaths of allegiance and supremacy [of the king over the church] or be removed from office. a great number of people refused to come to their parish church or other public place where common prayer and sacraments were administered and the word of god was preached according to the established church. the morning and afternoon sunday services with sermons, sometimes by guest preachers, continued. so factions and schisms developed. in response, the king changed the book of common prayer and its prayers were required by statute in 1662 to be read by some priest or deacon in all the churches and places of public worship wherever and whenever there was any preaching or lecturing. attendance at one's local parish church was never again required. as of 1665, no nonconformist minister, i.e. one who endeavored any alteration of government either in church or state, was allowed to live or visit within five miles of any corporate town or any place where he had acted as minister or forfeit 40 pounds. persons not frequenting the established church were not allowed to teach in any public or private school or forfeit 40 pounds. by statute of 1670, anyone at least sixteen years old who is present at any assembly, conventile [private meeting of religious dissidents to pray and expound scripture], or meeting under pretence of any exercise of religion in other manner than according to the established church of england at which there are at least five persons present shall be fined 5s. for the first offense and 10s. for the second offense. (this does not include members of the same household meeting in their home.) anyone who preaches or teaches at such a meeting shall pay 20 pounds for the first offense, and 40 pounds for further offenses. the householder who permits such a meeting shall pay 20 pounds. a justice or justice of the peace or chief magistrate may break open doors and enter by force any house or other place where they have been informed of any such meeting and take persons there into custody for prosecution. this is to discourage the growing of dangerous seditious persons under pretence of tender consciences. religious nonconformity continued especially among the humble people. the penal statutes caused hundreds of these nonconformists to be put in gaol. from time to time, the king would release them and suspend these laws. sometimes, charles ii allowed dissenters to meet in private for worship if they got a license from him. religious gatherings grew in numbers, size, and geographical extent. dissenters were then allowed by statute to meet behind locked or barred doors. but they had to pay tithes and could be prosecuted in the ecclesiastical courts for not doing so. by statute, all congregations and assemblies for religious worship had to register with the local bishop or archbishop. disturbers of religious worship were required to find two sureties for the amount of 50 pounds. attendance at the established church of england was never again required. nor was preaching or lecturing constrained. instead, a statute was passed in 1677 that: every person shall be pious and exercise religion publicly and privately on sunday. no work may be done or goods sold or forfeit 5s. or the goods respectively. no one may travel or forfeit 5-20s. in a further statute of 1688, because some ease to scrupulous consciences in the exercise of religion may be an effectual means to unite protestant subjects in interest and affection, protestant nonconformists who took the oaths (or declaration in the case of quakers) and a declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass were declared not liable for punishment in any ecclesiastical court by reason of their nonconformity to the church of england, except protestant dissenters meeting behind locked doors. but payment of tithes and performance of parish duties were still obligatory. non-conformist preachers had to subscribe to the tenets of belief listed in the first eighteen articles of religion, but were exempted from the articles on expounding inconsistencies in scripture, the traditions of the church, homilies, and consecration of bishops and ministers of the elizabethan statute and the statute on uniformity of prayers and sacraments of charles ii. quakers were active in the countryside. they were about one tenth of the population and did not believe in a state church. there were some quakers schools and some quaker workhouses to give work to the poor. for the reason that they met together in large numbers to the great endangering of public peace and safety and to the terror of the people, and because they had secret communications and separated themselves from the rest of the people and from the usual places of worship, a statute was passed in 1662, that any quakers who assembled to the number of five or more under the pretense of unauthorized religious worship and any person maintaining that taking an oath before a magistrate was unlawful and contrary to the word of god or refusing to take a required oath was to forfeit 5 pounds for the first offence or be imprisoned for 3 months if he couldn't pay. for the second offence, the penalty was 10 pounds or imprisonment for 6 months with hard labor. the third offence required abjuring the realm or being transported to a plantation of the king beyond the seas. the policy of charles ii was to allow quakers to meet undisturbed, to keep their hats on before magistrates, and to not come to the parish church. but this policy was only partially adopted in the country. from 1689, by statute, the quakers were allowed to affirm or declare instead of making the customary oath. many presbyterians became unitarians, who rejected the trinity of "father, son, and holy ghost" and doubted the divinity of jesus, but accepted revelation. this statute was then passed in 1697: any person having been educated in or having at any time made profession of the christian religion who, by writing, printing, teaching, or advised speaking, denies the holy trinity, asserts that there is more than one god, or that the bible is not of divine authority, shall be disabled for any ecclesiastical, civil, or military office. the penalty for a second offense is being disabled from suing or pleading any action in any court, being guardian of any child, or executor or administrator of any estate, or receiving any legacy or deed of gift and imprisonment for three years without bail or mainprize. catholicism was always disfavored. catholic priests were executed with little evidence. at times, charles commuted the death penalty for them to banishment. sometimes there were effigies of the pope burned in the streets. such burnings were later banned. at times charles allowed catholics to attend mass. by statute of 1672, all civil and military officers and king's officials must take the oaths of supremacy and allegiance and take the sacrament of the established church of england or be incapable of office. they also had to make a declaration that they believed that there is not any transubstantiation in the sacrament of the lord's supper, or in the elements of bread and wine, when they were consecrated. this is to prevent dangers from papists. as of 1678, no one may be a member of parliament if he has refused to take the oaths of allegiance and supremacy and the declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass. papists were made to pay higher taxes. every temporal and spiritual person, corporation, and guild had to pay taxes to subsidize the king in the amount of 2s.8d. for every pound's worth of personal property and money. but papists had to pay 5s.4d. for such. persons and corporations having land worth at least 20s. yearly, had to pay 4s. for every pounds' worth. but papists and aliens had to pay 8s. for such. but charles' sucessor, king james ii was catholic and gave many offices to catholics. this prompted a reaction against papism and more statutes restricting them. after james ii was chased out of england, a statute of 1688 required suspected papists in london to make a declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass, or stay ten miles outside of london, excluding tradesmen and manual workers, sho must only register. all papists had to forfeit their arms and any horse worth more than 5 pounds. also, no monarch or spouse of such could be a papist, but must make the declaration as members of parliament, and join in the communion of the established church of england. as of 1696, a person who is serjeant at law, counsellor at law, barrister, advocate, attorney, solicitor, proctor, clerk, or notary must take the oath of supremacy and allegiance. as of 1698, papists who kept a school or tried to educate the young were threatened with perpetual imprisonment. also, popish parents were prohibited from forcing their children inclined towards protestantism to become catholic by refusing them suitable maintenance. as of 1699, a reward of 100 pounds was offered to any person who apprehended a popish bishop, priest, or jesuit saying mass. also, no papist may buy land. judicial procedure as of 1679, no man could be held in prison but on a charge or conviction of crime or for debt. every prisoner on a criminal charge could demand as a right from the court of the king's bench the issue of a writ of "habeas corpus" which bound his gaoler to produce the prisoner and the warrant on which he was imprisoned for review as to legality. this forced trials to be speedy, which they had not hitherto been. now it was impossible for the crown to detain a person for political reasons in defiance of both parliament and the courts, as charles i had done. the writ was suspended in times of war and domestic unrest: 1689,1696, 1708. in 1670, william penn was arrested for sedition for delivering a sermon in london, contrary to the statute that only the church of england could conduct meetings for worship. the jurors would not convict him, so were gaoled and fined by the justices. the jurors filed a writ of habeas corpus in the court of common pleas, which held in their favor. thereafter the english jury had full independence to decide to verdicts. by court decision of 1679, jurors were held not to be responsible to the justice for their verdict. after 1688, hearsay was inadmissible as evidence, which coke had recommended. the old system of original writs was abandoned, and the general concept or a wrong to person or property took its place. a person who was sergeant at law, counselor at law, barrister, advocate, attorney, solicitor, proctor, clerk, or notary in the courts had to take the required oaths of allegiance and supremacy. as of 1692, persons outlawed could appear by attorney as well as in person to argue reversal of such outlawry, except in cases of treason and felony. as of 1696, persons accused of high treason where there might be corruption of the blood or for misprison [concealing knowledge] of such treason had to be taken before a grand jury for indictment within three years of the offense. those indicted or outlawed for such were given a copy of the whole indictment, but not the names of witnesses, at least five days before trial in order to prepare their defense. they could have a copy of the panel of jurors at least two days before trial. they could be represented in their defense by not more than two counsel learned in the law and assigned by the court. their counsel had free access to them at all reasonable hours. they could make proof through lawful witnesses under oath. in a trial of commoners for their lives, a jury of twelve freeholders had to all agree on acquittal or conviction. in a trial of a peer, the others peers in parliament determined the outcome by a majority vote. jurors were required to have at least 20 pounds income from freehold land or rents in fee, fee tail, or for life. this increase in the quality of the jury enabled it to better discern the issues in dispute. jury sympathy was determined by the sheriff who chose the jury. so if a sheriff was popularly elected, as in london, he chose jurors who favored individual and corporate liberty. if the king selected the sheriff, he chose tories, who supported the crown. issues of bastardy or lawfulness of marriage had to be tried by a jury. trespass on the case has now branched into assumpsit, trover, deceit, negligence, and libel and slander. the latter supplements bad words punished by the local courts and defamation punished by the church courts. trover becomes the normal mode of trying the title to moveable goods as the courts oblige the defendant to answer the charge of conversion without permitting him to dispute the loss and finding. this is an example of a writ for trespass on the case: the king to the sheriff &c. as in trespass to show: wherefore (e.g.:___) he fixed piles across the water of plim along which, between the humber and gaunt, there is a common passage for ships and boats, whereby a certain ship, with thirty quarters of malt of him the said a, was sunk under water, and twenty quarters of the malt of the price of one hundred shillings perished; and other wrongs &c. as in trespass. this is an example of a writ for trespass on the case in assumpsit: the king to the sheriff greeting &c. as in trespass to show: wherefore whereas he the said x undertook well and competently to cure the right eye of the said a, which was accidentally injured, for a certain sum of money beforehand received, he the same x so negligently and carelessly applied his cure to the said eye, that the said a by the fault of him the said x totally lost the sight of the said eye, to the damage of him the said a of twenty pounds, as he saith, and have there &c. wherefore whereas he the said x undertook to make and build three carriages for conveying victuals of him the said a to parts beyond the sea for a certain sum of money beforehand received, within a certain term between them agreed; he the said x did not take care to make and build the carriages aforesaid within the term aforesaid, by which he the said a hath wholly lost divers his goods and chattels, to the value of one hundred marks, which ought to have been conveyed in the carriages aforesaid, for want thereof to the great damage of him the said a as it is said: and have there &c. this is an example of a writ for case on indebitatus assumpsit: the king to the sheriff &c. as in trespass to show: for that, whereas the said x heretofore, to wit (date and place) was indebted to the said a in the sum of for divers goods wares and merchandises by the said a before that time sold and delivered to the said x at his special instance and request, and being so indebted, he the said x in consideration thereof afterwards to wit (date and place aforesaid) undertook and faithfully promised the said a to pay him the said sum of money when he the said x should be thereto afterwards requested. yet the said x, not regarding his said promise and undertaking but contriving and fraudulently intending craftily and subtly to deceive and defraud the said a in this behalf, hath not yet paid the said sum of money or any part thereof to the said a (although oftentimes afterwards requested). but the said x to pay the same or any part thereof hath hitherto wholly refused and still refuses, to the damage of the said a of -----pounds as it is said. and have you there &c. this is an example of a writ for case for trover: the king to the sheriff greeting &c. as in trespass to show: for that, whereas the said a heretofore to wit [date and place] was lawfully possessed as of his own property, of certain goods and chattels to wit, twenty tables and twenty chairs of great value to wit of the value of ___ pounds of lawful money of great britain; and, being so possessed thereof he the said a afterwards, to wit (date and place aforesaid) casually lost the said goods and chattels out of his possession: and the same afterward, to wit (date and place aforesaid) came into the possession of the said x by finding; yet the said x well knowing the said goods and chattels to be the property of the said a and of right to belong and appertain to him, but, contriving and fraudulently intending craftily and subtly to deceive and defraud the said a in this behalf, hath not as yet delivered the said goods and chattels, or any part thereof, to the said a (although often requested so to do) but so to do hath hitherto wholly refused and still refuses; and afterwards to wit (date and place aforesaid) converted and disposed of the said goods and chattels to his the said x's own use, to the damage of the said a of ____ pounds as it is said; and have you there &c. the rigid writs with specific forms of action for common law cases start to fall into disuse. later, trespass on the case bifurcates into misdemeanor and the tort of trespass. persons in prison on suspicion of treason could not be released on bail as of 1688. if one of several defendants of a case was acquitted, all defendants recovered their costs from the plaintiffs. a person found guilty of malicious prosecution recovered his costs from his accuser. mercantile cases were decided in light of mercantile custom rather than according to the strict rules of the common law. merchants and traders could settle their trade disputes by arbitration, which decision could be enforced by court order. after the restoration, all legal decisions of the commonwealth and protectorate were confirmed subject to a right of appeal. the star chamber was not restored, and parliament assumed its control of the press. the king's bench succeeded to most of the star chamber's jurisdiction. no longer could the privy council influence criminal cases and the general supervision of legal processes through the star chamber. the high commission court was not restored, but church courts were, but with depleted powers. they accepted subordination to the common law courts. because the church's administration was inefficient and corrupt and its punishments inadequate, they gradually lost their power to the common law justices and justices of the peace. they had virtually no authority over laymen. they could still punish heresy, but lost jurisdiction over the law of libel and slander, which then were transformed by the civil courts, and over prostitution and scandalous lewdness. local ordinances for suppression of brothels, which were run by madams, were founded on breach of the peace. in 1678, the death sentence was taken away from the church courts. in 1697, church sanctuary was abolished. the county courts faded into insignificance, as the justices of the peace took on more jurisdiction. in 1668, new justices were issued patents with "at pleasure" instead of "during good behavior" describing their tenure. charles ii and james ii frequently dismissed justices not favorably disposed to the crown. in 1697, they were to have fixed salaries instead of the profits of justice. by statute of 1701, justices' commissions were to be made with an established salary determined by parliament and a tenure to last during good behavior. they could be removed only by the address of both houses of parliament. this gave them independence from the king. their tenure lasted for the life of the monarch. the chief justice could empower persons by commission to take affidavits from people in the country for court proceedings in westminster. judgments were docketed so they could easily be found e.g. by heirs, executors, administrators, purchasers, and mortgagees. court judgments and fines could be challenged for error only within twenty years. court decisions were still appealable to the house of lords. in 1668, skinner v. east india company held that the house of lords could not exercise original jurisdiction in civil cases between commoners as it had claimed, but retained its appellate jurisdiction. in 1675, the house of lords acquired the new judicial function of hearing appeals from the chancery court by virtue of the case of shirley vs. fagg. any gaol keeper allowing a prisoner to escape in return for money lost his office forever and had to forfeit 500 pounds. the last burning of the occasional burnings of a woman as a penalty for an offense was in 1688. the last bill of attainder, which condemned a person to death, occurred in 1697. the pillory was still in use. benefit of clergy was taken away from those who stole cloth or woolen manufactures from their drying racks or who embezzled military stores or ammunition worth at least 20s, or stole goods of over 5s. value from a dwelling house with a person therein put in fear, a dwelling house in daytime with a person therein, or by day or night a shop or warehouse. a statute of 1661 gave jurisdiction to naval courts-martial to decide cases at sea, e.g. insubordination; failure to fight the enemy, a pirate, or rebels; not assisting a friend, mutiny, drunkenness, creating a disturbance to protest the quality of the food, quarreling, sleeping on watch, sodomy, murder, robbery, theft, and misdemeanors. usually the penalty was to be determined by the courts-martial, but sometimes death was decreed. in the american colonies, judges were still appointed by the royal governors and paid by the local legislatures. they still served at the pleasure of the king. chapter 18 times: 1702-1776 dress was plainer than before. gentlemen wore white linen shirts; waistcoats fitted at the waist and covering the trunk at least; long lawn ties wound around the throat and tied in front with the tails tucked in, knee-length coats that were wide in the skirts and in the sleeve cuffs and having large gold, silver, or bronze buttons which didn't reach to the buttonholes on the other side of the coat; knee breeches of cloth, knitted wool, thread, and silk; and silk stockings rolled up at the knee. some shoes had metal buckles. gold fobs with watches or seals hung from the breeches pocket. the clothes were made of silk, satin, or velvet and often in colors such as yellow, orange, scarlet, blue, violet, pink, and dull slate, and decorated with gold and silver trimmings. a slender sword was worn on the side. short wigs, often powdered with heavily scented white or gray wheat flour, with rolls over the ears with hair tied at the back, were worn for formal occasions. wigs were made of human, horse, goat, or cow hair, or mohair, worsted, silk, or wire. sometimes feathers and cork were also used. the hat was three-cornered, and usually of beaver or dark felt. there was often a rosette or such to show one's political opinion. there were new colors and cuts of dress for every season. by 1750, wearing a sword was just a symbol of gentility. gentlemen often had valets to help them dress. ladies wore fitted full-length dresses held out by hoops with shoulders hidden, sometimes with a laced bodice with stays, and lace at the neck. the waistline fashion fluctuated high and low and in tightness. the dress could be brocade, satin, velvet, silk, etc. some put jewels in their hair and had high elaborate hats with wide brims tilted forward. hair was in ringlets at the side or dressed close to the head with a small top knot covered with a laced cap. they also wore wigs when dressing up, decorated with ribbons and artificial flowers. hooded cloaks were used outdoors and hoods were used for sun or wind. they carried leather purses with gloves at elbow length. both gentlemen and ladies wore cosmetics and face patches and used tooth powders, breath sweeteners, lip salves, and choice perfume. some had false teeth of bone or ivory wired into place. they both had accessories such as fans, handkerchiefs, head scratchers, and elaborately designed snuff-boxes, patch boxes, and perfume containers. both men and women sniffed tobacco snuff but only men smoked. they walked with tall, elegant canes, and women also carried parasols. hats were made of wool and hair of beaver, rabbit, or camel. straw hats were worn in the summer. there were ready-made clothes and shoes, especially for children. night gowns and night caps were worn to bed. about 1714, umbrellas for rain were introduced. they were made of waxed silk or taffeta. all but the poorest wore silk and lace. a prosperous countryman wore riding clothes consisting of breeches and boots, cut-away coat, and low top hat. the highest class were the peers and peeresses of the house of lords and their spouses and families. they were the nobility and held the high political offices, the high ranks in the army and navy, and owned large estates, usually scattered over the country. some were lawyers or merchants. there was much intermarriage among these families. indeed, many a noble family had salvaged its fortunes by marriage to a london merchant. the richest people in london were international merchants. these high class families lived in mansions with four or five living rooms, two to five acre gardens, and stables. the next class were the gentry. their family heads had land and were often justices of the peace. they were sometimes members of the house of commons. the oldest son took over from his father, while the other had to find a living such as in the church, law, medicine, or trade. they usually lived in mansions. the old yeoman class was disappearing due to their selling their land to larger landowners. farming on a large scale was more productive. the next class were the "middling sort". in this class were merchants, lawyers, substantial tenant farmers, smaller freeholders, millers, innkeepers, in town traders, shopkeepers (who now kept their wares inside and lived on the second floor), middlemen, clothiers, ironmongers, goldsmiths, grocers, linen drapers, apothecaries, school masters, clerks and civil servants, and customs and excise men. the town people lived in town houses of two stories plus an attic. the last class were the manual workers. these were wage earners or independent craftsmen, farriers, rural smiths (who shod horses and made stair rails, window-bars, torch extinguishers, lamp irons, bells, bolts, hinges, locks, and fire-grates), sawyers, carpenters, joiners, wheelwrights, nail makers, brick makers, plumbers (made lead cisterns, kitchen sinks, rain-water heads, drain pipes and lead flats for houses and ornaments), thatchers, spinners (silk, flax, hemp, wool, hair), dyers, wool combers, weavers, shoemakers, hat makers, belt and buckle makers, dressmakers, milliners (hats, caps, bonnets, cloaks, hoods, muffs), feather workers, button makers, lace makers, steel pin makers, brewers, cutlery makers, soap makers, candle makers (made from beeswax, fallow, mutton-fat, or beef-drippings), comb makers, barber/hairdressers (shaved, cut hair, made wigs and braids, and let blood), curriers, leather workers, carpet weavers, paper makers, tin-plate makers, printers, enamel workers, braziers and coppersmiths (made kettles, saucepans, canisters, milk pails, lanterns, candle boxes, candle sticks, and lamp lighters), basket makers, jewelers (made rings, perfumes, match boxes, buckles, and tops of canes), watch and clock makers, type founders, letter cutters, trunk and chest makers, cabinet makers, saddlers, coach body builders, coach carriage makers, shipwrights, rope makers, and sail makers. these workers typically worked in their stone or brick houses in a rural setting, with gardens, a cow, a horse, pigs, and poultry around them on 2-6 acres. they now ate wheaten bread instead of rye bread, much meat and cheese, and drank tea. these people also worked in the harvesting of grain. some consolidation of work was starting. for instance, the weaver, who had furnished himself with warp and weft, worked it up, and brought it to market himself was being displaced by weavers who worked under supervision for one merchant in a town on looms the merchant had acquired. many women and children were so employed. it was not unusual for a man to work 13 hours a day for 6 days a week. real wages were higher than at any time since the mid-1400s. the wage earners were well above the subsistence level as long as trade was good. working men could now afford leather shoes and white bread. but eventually, as the employer came to realize how dependent the weaver had become on him, wages tended to fall. in 1757 a gloucester weaver, with his wife to help him, could earn, when work was good, from 13s. to 18s. a week. a few years later, he could only earn about 11s. a woman spinner earned 10-15d. a day in 1764, but 3-5d. in 1780. in the same period, men's wages fell from 17d. to 10d. a day. only certain workers, whose special occupation needed greater skill, e.g. the wool-combers, whose wool was longer and of better quality than carded wool, and shearers, were better paid. in 1770, wool combers made 13s. a week; their wage was about the same all over the country because they traveled form town to town in search of work and always supported each other. also in 1770, newcastle miners earned 15s. a week, sheffield cutlers 13s.6d. a week, a rotherham blacksmith 13s. a week, a furnace keeper at horsehay about 12s. a week, a staffordshire potter from 8-12s., a witney blanket weaver or a wilton carpet weaver 11s. or more a week, a manchester cotton weaver from 7-10s. a week, and a leeds cloth weaver about 8s. in this class also were ploughmen, cowmen, dairymaids of the bigger farms. they had cottages of wood, clay, and straw, with clay floors and low ceilings, and a divided ground floor. a few had homes built of stone, covered with slate or thatch. wages of industry were higher than those of agriculture. in 1770, a day laborer earned 5-6s. a week in winter and 7-9s. in summer (without board or lodging). in the short harvest time, he could earn 12s. a week. lastly were the mass of the population of london: hordes of laborers who depended on casual employment and could be dismissed at will. about half the population had no resources but their labor, which was usually unskilled and lowly paid. in good times they had just enough to feed themselves. the gap between rich and poor became greater. marriage remained a main way to wealth. also, one trained in the law could aspire to have a successful career in high political office, which also brought wealth. but there was less social mobility than in the previous century and many landed families were consolidating their position. they expected their oldest son to take and preserve the family estate. industrialists who had made a fortune for example in steel, cotton, coal mining, porcelain, and merchants who wanted to turn themselves into landed gentlemen found it very difficult to buy such estates. old dissenter families, quakers in particular, who were highly esteemed as businessmen, as industrialists, and as model employers were excluded from the anglican landowning society. rich tradesmen, artists, actors, and writers found it difficult to buy substantial houses in the small market towns and countryside because of an entrenched hierarchical atmosphere there that didn't exist in london. the only gentlemen who were in household service were librarians, tutors, or chaplains. they ate with the family and did not consider themselves servants. servants were kept more at a distance. by the 1750s the servant class was clearly defined. their quarters were moved to the basement of the house and they ate together in the kitchen. but some householders still had special occasions when everyone would eat together in the dining room, with the servants at one end of the table. in 1767 about one tenth of the population in london had servants. even bricklayers and milk sellers had a servant. most families had just one servant. most wives employed some other woman or child to help in washing and scouring or in the minding of the children. london had grown beyond the locations of its walls around the city. london stretched ten miles along the thames, and was three miles wide in the center. on the east of the city was the port and industry. the west side ended at hyde park and regent's park and was residential. in 1710 it was still possible to shoot woodcock in regent street. in 1750, westminster bridge was opened. in 1760, the city walls were taken down to ease congestion. the typical london house, usually brick, was on a rectangular plan and had a basement to utilize all the space possible. there were pictures on the walls which were now more covered with damask, brocade, silk, and wallpaper hung and plain paint than by wood wainscoting. on the first floor was a front hall or parlor and a back parlor. one of these parlor rooms was the most important room, where the family entertained or spent leisure time. in it were sofas, armchairs, and stools of mahogany or white gilded wood. they were upholstered with damask or needlework. imported mahogany was replacing as a favorite the walnut that was usually used instead of oak. much wood was inlaid with a variety of woods. there was also a carved tripod table, china table, card table, and perhaps bookcases and/or tea-table. furniture with original designs made by the cabinet-maker chippendale was available. his genius was in combining various motifs into one harmonious design. cabinet makers had to keep abreast of his standards and to imitate them to conform with their customers' orders. cabriole legs with claw and ball feet came into fashion with queen anne about 1712. between windows were tall mirrors. there were pictures on the walls. from 1760, glass chandeliers hung from the ceiling to reflect candlelight coming from standing candlesticks or glazed hanging lanterns with brass frames. the fireplace had an elaborate mantel. the fire was kept going all day. it was lit by a tender box, which was unreliable. an iron fire-back was behind the fire. the firewood was placed on andirons. fire grates were used from about 1712. at a corner of the building was added a closet. on the second floor was a dining room, continuation of the closet below, and a drawing room, dressing room, or bedroom, and perhaps a study or music room with harpsichord. the dining room had a fireplace, curtains over the windows looped up at the cornices, one or more mahogany tables, a set of mahogany chairs with leather or haircloth seats fixed with brass nails (perhaps with some sort of metal springing), two mahogany sideboards with marble tops, cupboards or shelves or cabinets with displays of china porcelain, a wine-cooler, a dumb-waiter, and a folding leather screen. the china, which was displayed, was mostly imported, but there was some english china. later, there was famous wedgwood stoneware and pottery with bright, unfading glaze, or with dull black and red surfaces, biscuit ware of pale green, blue or purple, upon which white designs stood out like cameos. they came from the pottery factory at staffordshire founded by potter josiah wedgwood in 1769. there were silver and pewter plates and serving pieces, silver candlesticks, and silver knives, spoons, and two and three pronged forks, glass salt-cellars from 1724, and fingerbowls from which one rinsed one's mouth or cleaned one's fingers after dinner which were made of glass from about 1760. on the third floor were bedrooms and a nursery. in the bedrooms, there was a high bed with curtains, canopies, piles of blankets and pillows, and stairs; wardrobe; chairs; a wash hand stand; chests of drawers; writing bureau; dressing table with a couple drawers and a mirror; swing standing mirror; tin rush candle canister; and night commode. children and servants slept on low wooden bedsteads. walls were stucco, a form of cement that could be sculpted, or paneled or hung with silk and printed paper. servants, such as the page and footmen, slept in the attic and perhaps in the kitchen or cellar. there was a wood staircase for the family and a back staircase for the servants. the floors and staircases were protected with carpeting. servants had no right to free time or to holidays. the kitchen was in the basement or in a covered shed in the back. it had an open fire and a tin oven. the cold water tap over the stone sink could supply cold water from a cistern in the basement or hand-pumped to a roof cistern through wooden pipes at very low pressure at stated hours for a fee. there was a wash shed in back. water pumped from the thames into underground pipes was thus distributed to householders three times a week. some water came from a well or spring, rain, and street water sellers. water carriers were still employed at set fees. water was kept in lead cisterns. the wealthy had basement cisterns filled by a commercial company. the free public conduits of water were out of use by 1750. the front door of the house had two strong bolts on the inside and a heavy chain. the windows could be shuttered and barred. there were sash windows with cords and brass pulleys. at the back of the house was a garden and perhaps a coach house or stables. the latrine was usually not in the house, but somewhere in the back garden area. under it was a brick drain leading to a public sewer or to a cesspool. smelly gases arose from it. sometimes people gathered such waste up to sell to farmers returning home in an otherwise empty wagon. in 1760, patented inside toilets began to be used. a watch-maker named alexander cummings patented in 1775 the water-closet, which had a stink trap u-bend behind which, after flushing, water resided and prevented the back-flow of noxious sewer gas. its pans and overhead cisterns were made in pottery. they were supported by wood structures. there were better cements for building. chinese porcelain, embroidery, and lacquer-work were popular. landscaping to reproduce an idealized country scene replaced formal gardens. furniture and landscaped gardens were often done in a chinese style. foreign trees were imported. many of the well-to-do now lived in districts without as well as within the city limits. many streets east of the city were named after the governing families whose estates were there. their mansions had interior columns, archways, marble halls and fireplaces, carving, gilding, rich colors, and high ornamented ceilings. they each had a picture gallery, a library, stables with coachmen, grooms, and stableboys, and a still-room for concocting liquors and cordials such as cherry brandy, sloe gin, and elderberry wine. medicine and scents were also developed in the still-room. washing was in done wash bowls held by wooden stands wood and in a built-in bathtub. hot water usually had to carried up to it, but bathtubs with hot and cold running water were known. in these mansions, there were many private parties and balls. the standard for politeness here was high and gentlemen were expected to keep their tempers. this came about because impoliteness could easily lead to a quarrel and then a duel. the pistol was replacing the sword as the weapon of choice for duels. good manners developed for all occasions, with much less swearing and less rudeness. by gentlemen's agreements, men did favors for each other without a monetary price, but with the expectancy of a favor in return. the love of one man for another was recognized as the highest and noblest of human passions. people of high social standing left their country estates to spend the winter season in their townhouses in london with its many recreations such as receptions, routs, levies, masquerades, balls, dinner parties, clubs, pleasure gardens, theaters, shops, shows, taverns, and chocolate and coffee houses. coffee houses provided turkish coffee, west indian sugar and cocoa, chinese tea, virginia tobacco, and newspapers. they were frequented by learned scholars and wits, dandies, politicians, and professional newsmongers. men of fashion often engaged in wagers and gambling at their clubs and coffee houses. there were wagers on such matters as the longevity of friends and prominent people, fertility of female friends, wartime actions, and political matters. carriage by sedan-chair was common. gentlemen often had valets. in 1776, buckingham house was bought as a palace for the royal couple. people from different parts of london differed in ways of thinking, conversation, customs, manners, and interests. for instance there were sections where sailors lived, and where weavers, watchmakers, and cow keepers each lived and worked. there were many specialized craftsmen who worked with their own tools in their own shops or houses, for some superior who had contact with the market and who supervised the final processes of manufacture. these included the goldsmiths, upholsterers, coach makers, saddlers, and watchmakers, all of whom had many dependents. the watchmakers had specialists making wheels, pinions, springs, hands, dials, chains, keys, caps, and studs in their own houses. the type of industrial organization most common in london was that in which work was given out to be done in the homes of the workers: the putting out system. some industries, such as watchmaking, silk weaving, and shoemaking were on both a putting out system and a system of an apprenticeship to journeymen working on piece work. shoes were made to order and ready made. the customer was measured in a shop, the clicker cut out the upper leathers, which were given to the closer to be closed, and then to the maker for the sole and heel to be put on. another class of shoemaker worked alone or with an apprentice in a garret, cellar, or stall, using pieces of leather cut out for him by the currier or leather cutter. london industries included bread, beer, spirits, and vinegar; sugar refining; tobacco refining; snuff; spinning and weaving of woolens and worsteds, silk ribbons, tape, and cloth; printed calico, linens, clothes, laces, tassels, fancy embroidery, stays, stocking weaving, hats, shoes, leather goods (boots, shoes hats, gloves, harnesses, saddles), jewelry, glass, candles, tapestry, musical instruments, cutlery, furniture, paint, varnish, tools, paper, printer's ink and glue, printing, publishing, swords, guns, heavy artillery, ships, sails, rope, carriages, and precious and base metalwares such as brass and pewter ware. surgical instruments made included straight and curved knives and probes, lancets, scissors, spatulas, trepans (for cutting bone), and cupping cases. optical instruments made included eyeglasses, telescopes, and microscopes. in 1727 eyeglasses were held in place by frames that went over the ears, which replaced unreliable cords over the ears and leather straps tied behind one's head. also made were nautical instruments, quadrants, sundials, sectors, globes, scales, orrerys [a model solar system], and air pumps. in london, the old distinction between craftsmen and laborers was blurred by the existence of trades which employed workmen under a skilled foreman instead of journeymen who had served an apprenticeship. these trades were, on a large scale, new. among the most important of these trades were the distillers and brewers of liquors, the tobacconists and snuff makers, the sugar refiners and soap boilers, the vinegar makers, and makers of varnish, of glue, of printers' ink, and of colors. the latest chemical theories and the chemical explanation of dying brought about the invention of new colors and new processes in dying cloth. workers in these trades were considered as laborers, but their wages were high and their positions relatively secure. they learned their jobs by doing them. the older trades of a similar character, such as tallow melters and chandlers, wax chandlers, fellmongers, and the tanners, employed journeymen. there were buildings for boiling and distilling turpentine, for casting brass or iron, and for making glass for chemical works for sale. the skilled artisan who works at home and either makes goods for a master or sells to the trade verges into the shop keeping class. on the other hand, the lowest type of shopkeeper, the chandler, the dealer in old iron, the tripe shop, the milk retailer, the keeper of a cook shop or a green cellar belong to the class of unskilled and casual labor. the lowly chimney sweeper, paid 6d. a day, served an apprenticeship as a boy, and then was his own master. the watermen and lightermen, by virtue of their fellowship and their apprenticeship and often the ownership of a boat, belonged to the class of skilled laborers. craftsmen in the building trades and paviours had their laborers as smiths had their hammermen to do the heavy work at laborers' pay. the street ragpickers, the ballad sellers, and the match sellers belonged to the class of beggars. working women in london in 1750 were employed in domestic service: 25%, nursing and midwifery: 12%, cleaning and laundry: 10%, vitualling: 9%, shopkeeping: 8%, hawking: 6%, and textiles: 5%. those employed in domestic service were mostly young women who later married. some women were schoolteachers, innkeepers, or manufacturers, which were middle-class employments. many women in the realm engaged in a variety of occupations from fanmaking and hairdressing to catering, and, as widows, often carried on their husband's trade, including bookselling, hatmaking, building or ironmongery. although shops still had small frontages of about 15 feet and the windows had small panes of bottle glass which partly obscured the view of the goods, there were magnificent shops with large windows displaying fine goods, bookshops, and print shops with prints of political satire with caricatures. the shops were generally open six days a week from 7 am to 8 pm, and over the years later to 10 pm. in 1675 josiah wedgwood opened a showroom in london for his high quality pottery from staffordshire. consumption was on a mass scale, many people buying what they wanted instead of just what they needed. there were circulating libraries, public concert halls, and professional boxing matches. at coffee houses, chocolate houses, and taverns, people played at dice and cards, gambled, talked politics and read daily newspapers, in which there was advertising, reports of marriages and deaths, grain prices, and book reviews. different professions and classes and groups, such as the whigs, the tories, classical scholars, scientists, clergymen, intellectuals, actors, writers, and journeymen of particular crafts, had their favorite meeting places. coffee houses reflected the character of their neighborhoods. they acted as postal centers, lost property offices, business addresses, physicians' consulting rooms, lawyers' and merchants' business transactions, matrimonial agencies, masonic lodges, auction rooms, and gambling dens. some retained a supply of prostitutes. many taverns had a rentable private room for the better-off to drink wine, have meals, meet friends, gamble, do business, and hold meetings of societies and clubs, especially political clubs. from this beginning sprang private clubs such as the blue stocking club in 1750 and the literary club in 1764; lloyd's for sale and insurance of ships in 1771; and the stock exchange in 1773. the blue stocking club was established by women who organized conversational parties with guests of intellect and wit. there was opera, playhouses, concerts usually with georg handel's oratorios such as the messiah or the foreigners bach and haydn, tea-gardens, fire works, balls, masquerades, wax works, beer shops, and bawdy houses, except on sunday. there were straight plays, comic operas, and melodramas. three-dimensional sets replaced the twodimensional backdrop. plays containing thinly veiled satires on politicians were becoming popular. some plays had crude and licentious material. theaters still shared a close association with brothels. unlicensed theaters were closed down by a statute of 1737, but most came to acquire patronage to get a license. this shaped the development of drama in london for a century. the beggar's opera depicting an immoral society unable to master its bandits was written by john gay as a powerful attack on a government which most of london hated. with its many ballads it became very popular. one such ballad goes: "through all the employments of life each neighbor abuses his brother; whore and rogue they call husband and wife; all professions be-rogue one another. the priest calls the lawyer a cheat, the lawyer be-knaves the divine; and the statesman, because he's so great, thinks his trade as honest as mine." another is: "a fox may steal your hens, sir, a whore your health and pence, sir, your daughter rob your chest, sir, your wife may steal your rest, sir, a thief your goods and plate. but this is all but picking, with rest, pence, chest and chicken, it ever was decreed, sir, if lawyer's hand is fee'd, sir, he steals your whole estate." the thames was crowded with sailing boats and with a line of boats waiting to unload. foreign and native ships lined the river banks in rows. theft of cargo from docked ships was still a problem and pirates were still executed at low tide on gallows. londoners went to the bridges across the thames to breathe fresh air. london air was so smoky and polluted by coal-burning in kitchens and factories that it gave a cough to newcomers. the river was so polluted by the sewers by 1760 that all the swans and most of the fish had disappeared. a mansion house was built for the mayor in 1753. the king's zoo had ten lions, one panther, two tigers, and four leopards. deer hunting in hyde park was now confined to its northwest corner, which was enclosed for the king, who occasionally hunted here. elsewhere in the park were laid out walks and fountains. gardens were now natural instead of formal. the streets were usually crowded with people and traffic. many people traveled by sedan chair. on the streets were barrows with goods such as lace, threads, fruits, and chickens; beggars, ballad singers, musicians, bands, street dancers, apple women, piemen, muffin men, fruit sellers, nut sellers, pudding sellers, milk maids selling milk from buckets, milk sold directly from the cow, vendors of asses' milk, hawkers, newspaper boys, scavengers with carts, postal collectors, lamplighters on their ladders, wenches, chimney sweeps, rat catchers, pick pockets, swaggering bravados, strolling strumpets, brawling watermen, card sharps, overdressed beaux, dancing dogs, and acrobatic monkeys. each trade had it own call. billingsgate open-air market was now exclusively for the sale of fish. small tradesmen such as dairymen, butchers, bakers, fishmongers, and chandlers delivered to regular customers food bought from distributing centers. workers by necessity lived near their place of work because there was no cheap transport and walking through the streets after dark was unpleasant and dangerous. hours of work for most craftsmen was from 6 a.m. to 8 p.m., six days a week. it was common for working class families in london to live in a single room of their house and rent the rest, furnished, to people of different degrees of prosperity and even of different social grades. servants and apprentices slept in the kitchen, the shop, or the garret. the very poor, such as casual laborers and street sellers, silk winders, charwomen, usually lived in damp cellars subject to floods from excessive rain, or in cold and windy garrets. tenancy was usually on a weekly basis because of the general uncertainty of life and trade. conditions were so cramped that cabinet makers made beds which masqueraded in the day time as tables, bureaus, cupboards, or bookcases. the very poor slept in common lodging houses, sleeping uncovered on the floor, twenty to a room. some poor families slept in small hovels made of mud and straw with their pigs, domestic fowl, dogs, and even asses and horses. homeless children slept on the streets. all classes lived so much at coffee houses, alehouses or clubs, which they often used as their addresses, that house room was a secondary consideration. there was an alehouse on almost every street in london to provide cheap food and beer, lodging, employment information, credit, newspapers, tobacco, and meeting places for tradesmen. some alehouses were recognized employment agencies for certain trades, such as the hatters, smiths, carpenters, weavers, boot and shoe makers, metal workers, bakers, tailors, plumbers, painter and glaziers, and bookbinders. they were often run by one of the trade, retired or otherwise. some alehouses catered to criminals and prostitutes. for cheap and simple eating there were chophouses, cookshops, and beef steak houses. there were about 10,000 english immigrants a year to london in the 1700s. they were mostly young people. london needed many immigrants because of its high death rate. over twenty london people a week died from starvation alone; they were mostly women. only about one-fourth of london's population had been born in london. especially welcome were sturdy country people for heavy manual labor, the better educated boys from the north for shops and offices, and the honest country people, as contrasted with london's poor, for domestic service. girls mostly looked for domestic service, but were sometimes made the mistress of the house-keeper or steered into prostitution as soon as they entered the city. ambitious young men would seek a job as an apprentice, work hard, flatter his master, and try to marry the master's daughter. it was easier to find a place to live in london than in the villages, though there was much overcrowding. many shopkeepers and workshop owners in london were involved in leasing, purchases, and contracts. queen anne was authorized to build about 50 more churches in london and westminster and their suburbs, to be paid for by a coal tax on imports into the port of london. churches in london were to be rebuilt with money paid by funeral rates, rates for tolling the bells, and rates for the use of palls [altar cloths]. queen anne also appropriated all her revenues from the first fruits and tenths of ecclesiastical benefices, 16,500 pounds, to the clerical poor in 1704. there were fewer quarrels among passersby on the london streets; men were less likely to wear their swords. but there were fist fights by common men which gathered crowds and occasioned betting. most crime was petty theft, but mobs and riots were frequent, as there were no police. watchmen and constables were often old and physically incapacitated. the watchmen were householders taking their turn. this duty of householders watching the streets had evolved from the ancient obligation of wards to provide men to guard the walls at night. but few wanted these jobs by which they could offend their neighbors. many citizens paid a rate to be excused from watch and ward duty. constables were often tavern keepers. many riots were started when penal laws against the catholics were repealed. they began with the cries of "no popery", but came to came to target rich men's houses. mobs sacked and pillaged at will, burned houses, and flung open the prisons to increase their numbers. there were political riots between tories and whigs. working men still used violence to protect their livelihoods, such as destroying the lodgings and public houses of cheap immigrant labor such as the irish. another instance was destroying stocking-knitting frames so not too many apprentices could be employed contrary to the regulations of the stocking knitters guild. the use of parish workhouse children also was a cheap supply of labor which forced down the wages of the stocking knitters. in 1720 a statute banned wearing of calico after mobs tore calico garments off women. in 1765, thousands marched on parliament and persuaded it to ban foreign silk imports. but when a mob destroyed engine-looms, the army was used against the rioters and two of them were hanged. this was the last major mob action. around the tower, there were still demagogues standing on upturned carts haranguing passing crowds. the tower area was a favorite place for demonstrators, and for unemployed and dissatisfied workmen, particularly coal heavers and underpaid seamen protesting their low pay and poor living conditions. there was more crime, especially at night, now with organized bands of men or gangs of children. bounty hunters made a lot of money catching offenders. in 1736, to deter the frequent robberies, burglaries, and other felonies at night, many glass lamps were set up in places determined by the mayor. they had to burn from sunset to sunrise. in 1736, a lighting rate was imposed by the city to pay for all night lighting all year by hired lamplighters. anyone breaking or damaging the lights of london would forfeit 40s. for the first offense, 50s. for the second offense, and 3 pounds for the third offense. the aldermen had to contract to pay for lighting, trimming, snuffing, cleaning, supplying, maintaining, and repairing them. to pay for this system, citizens paid according to the amount of rent their holdings were worth. if they didn't pay, they could not vote. bad areas of thieves and prostitutes and the slums east of the city were gradually being replaced by warehouses and offices. in 1757, london bridge was widened and the houses were cleared off it. there were lanes for carriages in the middle and for pedestrians on each side. its arches were also widened. lights were put on it to be lit all night. and watchmen were put on it for safety and protection of passengers. (this was paid for by tolls of 1/2 d. per horse, 1d. per carriage, and 2d.-1s. for vessels with goods.) about 1762, a body of enterprising citizens secured private acts of parliament which allowed them to levy a house tax in return for providing paving and lighting, which then greatly improved, as did sanitation. sidewalks were raised between the street proper and the buildings, replacing the protective posts which had lined the roads. flat stones were put in place of the pebbles on the roadway. signs hanging in from of stores, which had blocked the sunlight, were placed flat in front of the buildings. this also made the streets more airy. the buildings were given numbered addresses and street names were placed on buildings. loading and unloading could not exceed one hour. nuisances like empty carts could be removed. cranes used in warehouses had to be stored in unobtrusive places. one who drove on the foot pavement had to forfeit 10s. for the first offense, 20s. for the second offense, and 40s. for other offenses. wells were dug and pumps erected for watering the streets. pavements were to be repaired on complaint. dust boxes and dust holes were built and had to be used for refuse awaiting pickup by the raker or forfeit 10s. in 1762, the system of having every man responsible for cleaning the street in front of his door, which occasioned piles of rubbish in the central troughs of the streets waiting for the next rain to be washed away, was abandoned. but house occupants were required to keep the sidewalk in front of their house clean or forfeit 2s. if one broke a light, he had to pay damages if it was accidental, and also 20s. if willful. there were special stands for hackney coaches, which were 12d.6d. for a day of twelve hours. their regulations were extended to sundays. wards were to chose substantial inhabitants to be collectors for a year at a time to collect the rates, which were not to exceed 1s.6d. per pound of rents. if one declined to be a collector, he had to forfeit 50 pounds. in london, the normal system of building was for builders to buy up leases, put up a new building, and sell it before the lease became due. the rules for party walls between buildings were made more stringent: 2 1/2 bricks thick in cellar, 2 bricks thick to the garret floor, and 1 1/2 bricks above the roofs or gutters. they had to be made of brick or stone. in 1772, rain water from roofs had to be carried to the streets in lead or other pipes that were affixed against the side of the building. in 1774, iron, copper, or other pipe or funnel for conveying smoke or steam were not to be near any inside timber, or in front of most any building or next to any public street, square, or court. in the 1720s firefighters had to fill a tank on a wagon by hand with buckets. on top of the bucket was a hose that could spray water high. london parishes were authorized to place upon the water pipes underground stop-blocks of wood with a plug and firecocks to go into such pipe at various distances so that there would be no loss in time in digging down to the pipes to get water to fight fires. parishes were required to keep at known places, ladders and a large engine and a hand engine to throw up water to extinguish fires including one leather hose with socket fitting the plug or firecock, so that buckets would not be needed. the sun insurance company was incorporated for fire insurance in 1711. insurance offices were authorized to employ watermen with poles, hooks, and hatchets to be always ready at a call to extinguish fires. no more than 12 sacks of meal, 12 quarters of malt, 750 bricks, or 1 chalder of coal per load on wagons or carts with wheels bound with [narrow] iron tire are allowed within ten miles of london or westminster, or forfeit one horse. this is to prevent decay of the roads. for every wagon and cart in london, there must be a person on foot to guide it to prevent the maiming, wounding, and killing of people, especially the old and children, when drivers ride on their wagons and carts. later, it was required that carts must display the name of the owner and be registered. still later, there was a penalty of 10s. for not having a person on foot to guide any cart. later still, in 1757, if a new owner of a cart did not put his name thereon, he had to forfeit 40s., and the cart and horse could be seized and sold to pay the forfeiture. persons willfully obstructing passage on streets with empty carts or barrels or pipes shall forfeit 5-12s. or do hard labor up to one month. the justices of london assessed rates and made regulations for carriage of goods. certain houses and buildings were bought and pulled down to widen several streets, lanes, and passages. in 1774, persons driving cattle in london, whose negligence or improper treatment of such cattle cause them to do mischief shall forfeit 5-20s. or else go to a house of correction for up to one month or be publicly whipped. the roads around london were neither very attractive nor very safe. along them was land covered with water from drains and refuse and dung heaps. hogs were kept in large numbers on the outskirts and fed on the garbage of the town. smoking brick kilns surrounded a great part of london. in the brickyards vagrants lived and slept, cooking their food at the kilns. queen anne's drinking of tea made it a popular drink, but it was still expensive. this habit improved health because to make tea, the water had to be boiled before drunk. breakfast included tea and bread and butter, and later toast with melted butter. the rich also had coffee and chocolate. the morning newspaper was often read at breakfast. the chief dinner dishes were roast beef, roast mutton, boiled beef or pork, with puddings and vegetables. roast meat was still the basic diet of town and country gentlemen. there were also fowls, tripes, rabbits, hares, pigeons, and venison. many elaborate sauces were made. the national dish was the pudding, a compound of steak, kidney, larks, and oyster. drinks included ginger beer, lemonade, barley water, coffee, chocolate, tea, and foreign wine. port from portugal was introduced about 1703, and rum about 1714. rum, made from sugar, first became popular as a medicine, well-whisked with butter. beer was drunk by the poorer and middle classes. the poor could afford very little meat now, unlike 200 years ago. their standard fare was cheese, bread, and tea, the latter of which was usually from used tea leaves bought from rich houses. households were smaller; a peer had a household of about 25-50. the proportion of women grew to one-third to one-half. dinner guests sat and were served in order of rank, with gentlemen on one side of the table and ladies on the other. later, a fashion came in to sit alternately by sex. dinner was in several courses and lasted a few hours. toasts might be made. it was bad manners to put one's elbows on the table, to sniff the food, to eat too slowly or too quickly, to scratch, spit, or blow one's nose at the table, or to pick one's teeth with a toothpick before the dishes were removed. after dinner, the men drank, smoked, and talked at the table. there was a chamber pot under the sideboard for their use. politics was a popular subject. the women talked together in the drawing room. later, the men joined the women for tea and coffee. the evening often finished with card games, reading newspapers, verse-making, fortune-telling, walks in the garden, impromptu dancing, perhaps gambling, and supper. the nobility and gentry became more mobile and now mixed together at parties. at these afternoon parties, there were a variety of simultaneous activities, instead of everyone participating in the same activities together as a group. guests could choose to engage in conversation, news, cards, tea-drinking, music, dancing, and even go into supper at different times. sometimes a man other than her husband escorted a lady to a party. having lovers outside marriage was socially accepted if discrete. single women were discouraged from thinking of their independent status not as advantageous, but as regrettable. weddings were becoming public in church instead of private. brides wore a white silk or satin dress with a train. over one third of brides who were capable of having children were already pregnant when they got married. in 1753 a marriage statute required licenses to marry and the consent of parents or guardians in case of minors, calling of banns [advance announcement so that anyone could point out why the marriage should not take place], and need of four weeks residence in the parish where the license was given by bishop or other authority, because of the kidnapping of heiresses, prostitutes trapping unwary youths after getting them drunk, and priests performing marriages clandestinely and not in church, which required banns. two witnesses to the marriage were required to sign a certificate of marriage, which was then to be registered in the parish books. manufactured goods relieved ladies from baking of bread, brewing, and spinning. so they often visited with friends, wrote letters, embroidered, and supervised the servants. funerals ceremonies started with socializing at the house with refreshments, then going in a procession to the church for burial, and finally returning to the house for more socializing. it was possible for a woman-covert to be seized of land in fee simple or in tail general or special to her separate use, free from control or intermeddling of her husband. houses were warmed in winter by burning coal. furniture was still sparse. moderate homes had tent-beds in use, with which cloth was hung on all four sides of the bed from a light iron framework above the bed. the beds were warmed with a warming pan heated in a fire before use. there were often bed bugs and fleas. everyone wore nightcaps to bed. pewter tableware was used, but the poor used tinware instead. copper, brass, and iron pots and pans were increasingly common. most towns had a regular market once or twice a week. in them, street cleaning was still a responsibility of individual householders. water was still obtained from wells and pumps. there was no municipal government as such. public works were done by special commissions set up for particular purposes, such as lighting, cleaning and paving the streets, night watchmen, traffic regulation, removing nuisances, and improving local amenities. large towns had hospitals for the poor. in the larger manufacturing towns, there were literary and philosophical societies for debates and discussions. these put together libraries for use of their members. also in these large towns, there were booksellers' shops, printing houses, weekly newspapers, playhouses, concerts, and horseracing courses, the latter of which was mostly patronized by gentlemen. some private citizens of various towns followed the example of london and obtained from parliament the right to levy a house rate for paving and lighting. physicians and lawyers lived in two-story brick mansions with attics and sash windows that could be lifted up and down with the help of a pulley. they had rectangular wood panes each with a sheet of glass cut from a circle of blown glass. the old blown glass was not regular, but had a wrinkled appearance. the center of each pane of glass was thicker with a knot in the middle left from the blow pipe. in front of the house were railings which supported two lanterns at the doorway. towns tended to be known for certain specialties, such as seaside holiday resorts, spas like bath, cathedral towns, fashionable shopping for gentry, and towns with certain industries like glass and china manufacture, pin-making, pottery, tanning, manufacture of linen, silk, cotton, and the knitting trade. certain towns were famous for certain varieties of wool cloth. before 1750, a town with more than 5,000 inhabitants was considered a large town. shop keeping was supplanting fairs and markets. certain industries were done on a large scale and required workers to be at the same site, e.g. brewing and distilling; building ships; printing fustians; making paper, soap (from animal fat) or candles; coal mining, iron production, mining and smelting of tin and copper, refining of salt, and digging of clay. certain other industries also required some kind of power or team work for their production, e.g. refining sugar; finishing cloth; making bricks; glass-making; manufacture of ropes and sails, and processing of copper and brass into rods and sheets. often the manufacturer's house was surrounded by the many cottages of his workers. there the wife and children usually were busy carding and spinning. putting out work and subcontracting were widespread and created many small-scale capitalists. workers' hours were typically 6am to 8pm. as wood charcoal was becoming expensive, coal was increasingly used for brewing and for brick, glass, and china manufacturing. mines for coal became deeper; flooding of them and of tin and copper mines became a problem. drovers bought cattle in the countryside, drove them to big towns, and sold them to fattening graziers or fatted them themselves. then they were driven into town and sold to the wholesale butcher, who sold the carcass to the retail butcher, the hides to the tanner, and the bones to the glue maker. flocks of geese were also driven into towns, after their feet were given a protective covering of tar. there were also middlemen wholesalers for cheese, butter, cloth, and iron. there was a rage of distemper among the cattle so serious that the king was authorized to make regulations for prohibiting the removal or sale and for the burial of distempered cattle later, the king was authorized to prohibit the killing of cow calves. no one may sell any ox, bull, cow, calf, steer, or heifer until he has had possession of such for forty days or forfeit ten pounds, because of distemper. later, the king was authorized to regulate the movement of cattle from one place to another. the main industry of the country was still agriculture. in the countryside, about half the arable land was under the open field system, with land cultivated in common. enclosure of land was still going on. the enclosures were now done by statutory commissions to ensure equitable allotments. agricultural improvements came first to enclosed land, which comprised about half of the agricultural land. in the 1733, jethro tull published a book about his 1701 invention of the seed-drill to first pulverize the soil for cultivation without manure and then to deposit seed at a uniform depth in regulated quantities and in rows instead of being thrown haphazardly. also explained was the horse-hoe to stir the soil about the roots of the plants to preserve moisture, promote aeration, admit warmth, and destroy weeds. there were more horses than oxen in use now in the fields. the horse-hoe was first used by large independent farmers on enclosed land. also invented was a threshing machine with a set of sticks to replace hand threshing with flails. under-drainage as well as irrigation was practiced. lord townshend alternated turnips, grasses, and grain in his fields, and thus provided winter food for his cattle. the old forms of crop rotation with fallow periods were often displaced by legume-rotation field-grass agriculture. independent farming gave rise to the improvement of breeds of livestock by selective breeding. enclosed land produced 26 bushels of grain compared to 18 bushels for common field land. it produced 9 pounds of sheep fleece compared to 3 1/2 pounds for common field land. overall, soils were improved by being treated with clay, chalk, or lime. artificial pasture was extended and there was increased use of clover, sainfoin, and rye-grass. grain productivity was four times that of 1200. a fatted ox was 800 pounds compared to the former 400 pounds which it weighed from the 1300s to the 1600s. the fleece of sheep increased fourfold. by statute of 1756, persons having rights of common in certain land may, by the major part in number and in value of each's tenement, enclose such land for planting and growth of timber or underwood. every village had a smith, carpenter, and miller. the larger villages also had a potter, a turner, a malster, a weaver, a tanner, and perhaps a mercer or grocer middleman. wheelwrights made ploughs, harrows, carts, and wagons. ploughs had one, two, or no wheels. poor farming families took up extra work in the villages such as making gloves, knitting stockings, or spinning yarn. craftsmen still helped farmers at harvest time. much of the rural population was now dispersed over the countryside instead of being concentrated in villages because so many small holders had sold out due to enclosures of farm land, especially of common land and waste land. the rural working class lived in two room cottages, with low ceilings, small windows, and an earth floor. patience was required for those willing to wait for an existing cottage in a village to be vacated. most laborers did not marry unless and until they found a cottage. ancient custom that a person could build a home for himself on waste land if he did it in one night was ceasing to be respected. farmers usually preferred employing day-laborers than keeping servants. there were many migrant workers, mainly from ireland, for the busy summer haymaking and harvesting. the children of laborers and of small farmers had little schooling because they were needed for work. they scared the birds, weeded the fields, picked the stones, tended the poultry, set beans, combed the wool, and collected the rushes and dipped them in the tallow [sheep fat]. farm people relied on well water or rain water collected in lead cisterns. a farmhouse fireplace had pots hung from iron rods. saucepans sat on iron stands, which were stored above the mantel when not in use. spits were rotated by pulleys powered by the upward current of hot air or by a mechanical device. bacon was smoked in the chimney accessible by a staircase or upper floor. there still existed customary freeholders, who owned their land subject to certain customary obligations to the lord of a manor. the people displaced by enclosure became laborers dependent on wages or paupers. their discontent was expressed in this poem: "they hang the man and flog the woman that steals a goose from off the common but leave the greater criminal loose that steals the common from the goose." eventually there was some relief given to the poor workers. by statute of 1773, wastes, commons, and fields having several owners with different interests may by three-quarters vote in number and in value of the occupiers cultivate such for up to six years. however, cottagers and those with certain sheep walks, or cattle pasture, may not be excluded from their rights of common. by statute of 1776, the elizabethan statute restricting locations where cottages could be erected and their inhabitants was repealed because the industrious poor were under great difficulties to procure habitations. land could be rented out at ten times the original value. land was typically rented out for 7, 14, or 21 years. great fortunes were made by large landowners who built grand country estates. the manufacturers and merchants made much money, but agriculture was still the basis of the national wealth. as the population grew, the number of people in the manufacturing classes was almost that of the agriculturalists, but they had at least twice the income of the agriculturalists. the greatest industry after agriculture was cloth. most of this activity took places in the homes, but families could earn more if each family member was willing to exchange the informality of domestic work for the long hours and harsh discipline of the factory or workshop. more wool was made into cloth in the country. dyed and finished wool cloth and less raw wool and unfinished broadcloth, was exported. bleaching was done by protracted washing and open-air drying in "bleach fields". there were great advances in the technology of making cloth. thomas lombe, the son of a weaver, became a mercer and merchant in london. he went to italy to discover their secret in manufacturing silk so inexpensively. he not only found his way in to see their silk machines, but made some drawings and sent them to england hidden in pieces of silk. he got a patent in 1718 and he and his brother set up a mill using water power to twist together the silk fibers from the cocoons into thread [thrown silk] in 1719. his factory was five hundred feet long and about five stories high. one water wheel worked the vast number of parts on the machines. the machines inside were very tall, cylindrical in shape, and rotated on vertical axes. several rows of bobbins, set on the circumference, received the threads, and by a rapid rotary movement gave them the necessary twist. at the top the thrown silk was automatically wound on a winder, all ready to be made into hanks for sale. the workman's chief task was to reknot the threads whenever they broke. each man was in charge of sixty threads. there were three hundred workmen. lombe made a fortune of 120,000 pounds and was knighted and made an alderman of london. after his patent expired in 1732, his mill became the prototype for later cotton and wool spinning mills in the later 1700s. there were many woolen manufacture towns. clothiers might employ up to three thousand workers. at these, the spinning was done by unskilled labor, especially women and children in villages and towns. weaving, wool combing, and carding were skilled occupations. in 1733, clockmaker and weaver john kay invented a flying shuttle for weaving. it was fitted with small wheels and set in a kind of wooden groove. on either side there were two wooden hammers hung on horizontal rods to give the shuttle and to and fro action. the two hammers were bound together by two strings attached to a single handle, so that with one hand the shuttle could be driven either way. with a sharp tap by the weaver, first one and then the other hammer moved on its rod. it hit the shuttle, which slid along its groove. at the end of each rod there was a spring to stop the hammer and replace it in position. it doubled the weavers' output. now the broadest cloth could be woven by one man instead of two. this shuttle was used in a machine for cotton. but the manufacturers who used the flying shuttle combined together and refused to pay royalties to kay, who was ruined by legal expenses. now the price of thread rose because of increased demand for it. the weavers, who had to pay the spinners, then found it hard to make a living. but the process of spinning was soon to catch up. in 1738, john wyatt, a ship's carpenter who also invented the harpoon shot from a gun, patented a spinning machine whereby carded wool or cotton was joined together to make a long and narrow mass. one end of this mass was drawn in between a pair of rotating rollers, of which one surface was smooth and the other rough, indented, or covered with leather, cloth, shagg, hair, brushes, or points of metal. from here, the mass went between another set of rollers, which were moving faster than the first pair. this stretched the mass and drew it into any degree of fineness of thread by adjusting the speed of the second pair of rollers. then the thread went by a flier, which twisted it. after this the thread was wound off onto spindles or bobbins, whose rotation was regulated by the faster pair of rollers. or the mass could be drawn by rotating spindles directly from one pair of rollers. this machine was worked by two donkeys and was tended by ten female workers. because of bankruptcy in 1742, the invention was sold to edward cave, the editor of "gentleman's magazine". he set up a workshop with five machines, each fitted with fifty spindles and worked by water wheels. carding was done by cylindrical carding machines invented by lewis paul. in 1764, the plant was bought by carpenter and weaver james hargreaves. his work with it resulted in his invention of the very successful spinning jenny, which was patented about 1770. he conceived the idea by watching a spinning wheel that had been knocked over lying on its side and still revolving for a few seconds, while the thread, held between two fingers, seemed to go on spinning itself. the machine consisted of a rectangular frame on four legs. at one end was a row of vertical spindles. across the frame were two parallel wooden rails, lying close together, which were mounted on a sort of carriage and slid backwards and forwards as desired. the cotton, which had been previously carded, stretched, and twisted passed between the two rails and then was wound on spindles. with one hand the spinner worked the carriage backwards and forwards, and with the other he turned the handle which worked the spindles. in this way, the thread was drawn and twisted at the same time. no longer did it take ten spinners to keep one weaver busy. but manufacturers refused to pay him royalties for his invention. he was offered 3,000 pounds for his rights in the jenny, but refused it. the courts held that the model of his jenny had been used in industry before it was patented and any rights he may have had were declared to have lapsed. nevertheless, he made over 4,000 pounds. the spinning jenny was used in many homes. richard arkwright, came from a poor family and was taught to read by an uncle. he became a barber and made wigs. although he was not a craftsman of any sort, he patented in 1769 a spinning frame worked by water power and erected the first practical cotton mill factory. it produced a much stronger thread than could have been made with a spinning wheel. with capital from two rich hosiers, he set up a workshop next to a swift and powerful river running down a narrow gorge. then he turned his attention to weaving this thread. in 1773, he set up weaving workshops making pure cotton calicoes which were as good as indian calicoes. but there was a statute of 1721, that no one may wear or use printed, painted, stained or dyed calicoes e.g. in apparel, bed, chair, cushion, window curtain, furniture, except those dyed all in blue, or forfeit 20 pounds by a seller, 5 pounds by a wearer, and 20 pounds by other users. this prohibition was to provide wool working jobs to the poor, who had been increasing excessively because of lack of work. a clarification was made in 1735 that the statute did not include printed or painted cloth made of an all linen warp (for strength) and a cotton weft (for fineness) manufactured in great britain because such was a branch of the ancient fustian manufacture. there was also a statute of 1720, that any one who willfully and maliciously assaults a person in the public streets or highways with an intent to tear, spoil, cut, burn, or deface the garments or clothes of such person and carries this out is guilty of felony and may be transported for seven years. this was the way the wool weavers had expressed their opposition to imported printed cottons and calicoes. the prohibition against the manufacture and wearing and using of pure cotton fabrics came to an end in 1774 on arguments of arkwright made to parliament that his pure cottons would bleach, print, wash and wear better than fustians. this was the first all cotton cloth made in england. in 1775, arkwright added machines to do work prefatory to spinning. raw cotton was first fed by a sloping hose to a feeder that was perpetually revolving. from here it went a carding machine of three rollers of different diameters covered with bent metal teeth. the first, with teeth bent in the direction of its revolution, caught up the cotton fibers. the second, revolving in the same direction but much faster, carded the fibers into the requisite fineness by contact with the third, whose teeth and motion were in the opposite direction. next, a crank and comb detached the carded cotton so that it came off as a continuous ribbon. then the ribbon went into a revolving cone, which twisted it on itself. eventually arkwright became rich from his creation of the modern factory, which was widely imitated. he established discipline in his mills and he made his presence felt everywhere there, watching his men and obtaining from them the steadiest and most careful work. he provided housing and services to attract workers. after cotton, the inventions of the spinning jenny and the waterpowered frame were applied to wool. silk and cotton manufacture led the way in using new machinery because they were recently imported industries so not bound down by tradition and legal restraint. yarn production so improved that weavers became very prosperous. cards with metal teeth were challenging the use of wood and horn cards with thistles in carding wool. merchants who traveled all over the world and saw new selling opportunities and therefore kept encouraging the manufacturers to increase their production and improve their methods. factory owners united to present suggestions to parliament. manufacturing broke loose from traditional confines in several ways. to avoid the monopolistic confines of chartered towns, many entrepreneurs set up new industries in birmingham or manchester, which grew enormously. manchester had no municipal corporation and was still under the jurisdiction of a manor court. it sent no representative to the house of commons. all over the country the justices of the peace had largely ceased regulating wages, especially in the newer industries such as cotton, where apprenticeship was optional. apprenticeship lapsed in many industries, excepting the older crafts. several legal decisions had declared seven years practice of a trade as good as an apprenticeship. apprentices still lived in their masters' houses and were still treated as family members. the regulations of the cutlers' company remained in force as its masters used their great manual skill to make cutlery in their own homes with the help of their children and apprentices. trades in some towns which had guild regulations that had the force of law hung on to their customs with difficulty. although there were few large factories in the country under effective management of a capitalist, trade unionism was beginning as two distinct classes of men were being formed in factories. the factory owner was so high above his workmen that he found himself on the same level as other capitalists, the banker, who gave him credit, and the merchant, who gave him customers. journeymen in factories could no longer aspire to become masters of their trade and no longer socialized with their employers. hard and fast rules replaced the freedom of the small workshops. each worker had his allotted place and his strictly defined and invariable duty. everyone had to work, steadily and without stopping, under the vigilant eye of a foreman who secured obedience by means of fines, physical means, or dismissals. work started, meals were eaten, and work stopped at fixed hours, signaled by the ringing of a bell. factory hours were typically fourteen hours or more. organized resistance, as usual, began not with those most ill-treated, but with those men who had some bargaining power through their skills. wool-combers, who worked next to a charcoal stove where they heated the teeth of the comb, were the most skilled of the cloth industry were hard to replace. since they were nomadic, they quickly organized nation-wide. they agreed that if any employer hired a comber not in their organization, none of them would work for him. they also would beat up and destroy the comb-pot of the outsider. in 1720 and 1749, the tiverton wool-combers objected to the import of combed wool from ireland by burning irish wool in clothiers' stores and attacking several houses. they had strike funds and went on strike in 1749. their bloody brawls caused the military to intervene. then many of them left town in a body, harming the local industry. the earnings of wool-combers was high, reaching from 10s. to 12s. a week in 1770, the highest rate of a weaver. in 1716, the colchester weavers accused their employers of taking on too many apprentices. when the weavers organized and sought to regulate the weaving trade, a statute was passed in 1725 making their combinations void. strike offenses such as house-breaking and destruction of goods or personal threats had penalties of transportation for seven years. still in 1728, the gloucester weavers protested against men being employed who had not served their apprenticeship. when the journeymen tailors in and around london organized, a statute made their agreements entering into combinations to advance their wages to unreasonable prices and to lessen their usual hours of work illegal and void, because this has encouraged idleness and increased the number of poor. tailors' wages are not to exceed 2s. per day and their hours of work are to be 6 a.m. to 8 p.m. for the next three months, and 1s.8d. per day for the rest of the year. a master tailor paying more shall forfeit 5 pounds. a journeyman receiving more shall be sent to the house of correction for 2 months. justices of the peace may still alter these wages and hours depending on local scarcity or plenty. despite this statute, the journeymen tailors complained to parliament of their low wages and lack of work; their masters called them to work only about half the year. there was much seasonal fluctuation in their trade as there was in all trades. the slack period for the tailors was the winter, when the people of fashion retired to their country estates. after their complaint, their wages then rose from 1s.10d. per day in 1720, to 1s.8d.2s. in 1721, to 2s.2s.6d. in 1751, to 2s.2d.2s.6d. in 1763, to up to 2s.71/2 d. in 1767, and to 3s. in 1775. foremen were excluded from wage control. when they complained of their long hours, which were two hours longer than the 6 a.m. to 6 p.m. of most handicraft trades, their hours were reduced in 1767 by one hour to 6 a.m. to 7 p.m. and their pay was set at 6d. per hour for overtime work at night during periods of general mourning, e.g. court mourning. their work hours were lowered to from 6 a.m to 6 p.m. in 1768. the stocking frame-knitters guild, which had been chartered in 1663, went on strike to protest the use of workhouse children as an abuse of apprenticeship which lowered their wages. they broke many of their frames, which belonged to their employers, to limit their number. in 1749, combinations to advance wages, decrease hours of work, or regulate prices were declared void for journeymen dyers, journeyman hot pressers, all wool workers, brickmakers and tilemakers, journeymen servants, workmen, laborers, felt and hat makers, and silk, linen, cotton, iron, leather, and fur workers in and around london. the penalty was prison or hard labor at a house of correction for three months without bail. in 1756, justices of the peace were to determine the rates of wages of wool workers according to numbers of yards. but this was repealed the next year to prevent combinations of workers. wage agreements between clothiers and weavers were declared binding. clothiers not paying wages within two days of delivery of work shall forfeit 40s. in 1763 the silk weavers in east london drew up a scale of wages, and upon its being rejected, 2000 of them broke their tools, destroyed the materials, and left their workshops. a battalion of guards had to take possession of the area. in 1765, the silk weavers marched on westminster to stop the import of french silks. in 1768, the weavers rebelled against a 4d. per yard reduction in their wages, filling the streets in riotous crowds and pillaging houses. after the garrison of the tower came, the workmen resisted with cudgels and cutlasses, resulting in deaths and woundings. the throwsters [those who pulled the silk fibers from the cocoons of the silk worms and twisted them together to make a thread] and the handkerchief weavers also became discontent. a battle between soldiers and silk weavers at their meeting place resulted in several men on both sides being killed. in 1773, wages and prices for the work of journeymen silk weavers in and around london are to be regulated by the mayor and justices of the peace. foremen were excluded. no silk weaver may have more than two apprentices or forfeit 20 pounds. journeymen weavers entering into combinations shall forfeit 40s. this statute satisfied the weavers, but they formed a union to ensure that it was carried out. in 1750, 1761, and 1765, there were strikes which stopped the work of the coal industry and harbor at newcastle for weeks. in 1763, the keelmen formed a combination to force their employers to use the official measure fixed by statute for the measurement of loads of coals. the book "consideration upon the east-india trade" dating from 1701 advocated free foreign trade. it argued that the import of goods from india not only benefited the consumer but also the nation, because it was a waste of labor to use it in producing goods which could be bought cheap abroad. this labor could be better put to use in new industries, at easily learned plain work. also the low cost of imported goods would motivate the invention of machines in the nation which would be even more efficient in manufacturing these goods. but english manufacturers were still suspicious of free trade. making beer and distilling gin from barley were widespread. the pastimes of gambling and drinking were popular with all classes. in the trades, this was promoted by the uncertainties of life and work and a general sense of instability. many london tradesmen started their day with a breakfast of beer, bread, and cheese, the traditional breakfast of countrymen. gambling and dissipation reduced some london men with good businesses to destitution, the work house, or street begging. drunken gentlemen played pranks such as imitating a woman in distress or throwing a person in a horse trough. some innkeepers had "straw houses" where customers who were so drunk they were unable to walk home could sleep in fresh straw. a person could get drunk for a few pence. gambling with cards was a popular pastime after dinner. cricket matches were played by all classes instead of just by humbler people; there were county cricket matches. gentlemen often took their coachmen with them to public events such as cricket matches. tennis was a sport of the wealthy classes. billiards, chess, and games with cards or dice were played, especially in alehouses. there was horse racing on any open ground to which people brought their horses to race. jockeys tried to unseat each other. hunting of rabbits and then foxes replaced deer hunting. bird and duck hunting was usually with flint lock guns instead of hawks, as the hedges provided cover from hawks. there was fishing with line, hook, and bait. watching the hanging of felons, about 35 a year in london, was popular, as was going to bedlam to watch for a fee the insane being flogged. people went to the tower to try to get a glance at a famous prisoner looking through a window or taking a walk along the battlements. besides the grand pleasure gardens for gentry, there were lesser pleasure gardens in london for working families, which offered fresh air, tea, beer, swimming, fishing, courting, bowling, and cheap entertainment. running, vaulting, and leaping were still popular in the countryside. fairs had amusements such as fire swallowers, ventriloquists, puppet shows, acrobats, jugglers, animal performances, pantomimes, boxing, dwarfs, and albinos, but less trading. in 1769 was the first circus. circuses included feats of horsemanship and clowns. there was also eating and drinking competitions, foot races, football, archery, some wrestling, and some bowling on greens or alleys. in winter there was ice skating with blades and sliding. the right of public access to st. james park became entrenched by the 1700s. there was sailing, rowing, swimming, and hopscotch. george iii made sea-bathing popular and it was supposed to be good for one's health. there was steeple chasing as of 1752. horse-racing was given rules. on sunday, there was no singing, music playing, dancing, or games, but the bible was read aloud, prayers were said, and hymns were sung. sabbath-breakers were fined by magistrates. men often spent sunday in a tavern. in general, commodity prices were stable. but when harvests were poor, such as in 1709 when there was famine, and between 1765 and 1775, bread prices rose. the price of wheat in london, which since 1710 had been between 25s. and 45s., rose to 66s. in 1773. then the poor engaged in food riots. these riots were often accompanied by burning; looting of grain mills, shops, and markets; and mob violence. the english economy was so dependent on foreign trade, which had trebled since the 1710s, that the slightest disturbance in the maritime trade threatened the english with starvation. in many localities the men in need of parochial relief were sent around from one farm to another for employment, part of their wages being paid from the poor rates. the poor often went from parish to parish seeking poor relief. settled people tended to fear wandering people. parishes sought to keep down their poor rates by devices such as removing mothers in labor lest the infant be born in the parish. so a statute was passed that a child born to a wandering woman may not have the place of birth as his settlement, but takes the same settlement as his mother. some farmers hired laborers for only fifty one weeks and some apprentices were bound by means other than indenture so that they could not establish settlement in that parish. laborers who came to work in industries were refused settlement and sent back to their original parishes whenever they seemed likely to become dependent on the rates. statutes then provided that a parish must give settlement to apprentices bound for forty days there, not only by indenture, but by deed, writings, or contracts not indented. in 1722, parishes were authorized to purchase houses in which to lodge or employ the poor and to contract with any person for the lodging, keeping, maintaining, and employing of the poor. these persons could take the benefit of the work, labor, and service of these poor, which would be used for the relief of other poor. the poor refusing such lodging could not then get relief. many of the poor starved to death. the propertied classes turned a blind eye to the predicament of the poor, opining that they were idle or could save more and did not need higher earnings. charitable organizations gave to the poor and set up all day sunday schools to set wayward children on a moral path. the sunday schools could accommodate children who worked during the week. punishment of children by parents or others could be by whipping or even sitting in stocks. about half of the people were dependent on poor relief or charities. desertion by a man of his family was a common offense. parishes providing upkeep for the family sent men to find the errant husbands. the parish would ask unmarried mothers who was the father of their child and then force him to marry her or pay for the upkeep of the child. he often made a bargain with the parish to release him of his obligation for a sum of money paid to the parish. but many young parish children died of neglect, and later, parishes were required to list children under four to aid in accounting for them. divorces were still few and expensive, but increasing in number; there were more 60 in this period. it was easier for a man to get a divorce for one act of adultery by his wife, than for a wife to get one for habitual unfaithfulness. vagrants and other offenders could be committed to houses of correction as well as to county gaols, because of the expense of the latter. crime was exacerbated by orgies of liquor drinking by the common people, especially between 1730 and 1750, the sale of which did not have to be licensed as did ale. in 1736, it was required that retailers of brandy, rum, and other distilled spirituous liquors be licensed and to pay 50 pounds a year for their license, because excessive use had been detrimental to health, rendering persons unfit for useful labor and business, debauching their morals, and inciting them to vices. only persons keeping public victualling houses, inns, coffee houses, alehouses or brandy shops who exercised no other trade were allowed to obtain a license. this excluded employers who had sold liquors to their journeymen, workmen, servants, and laborers at exorbitant prices. street vendors who sold liquors had to forfeit 10 pounds. a duty of 20s. per gallon was imposed on the retailers. there were riots in london against this statute and its new duties. there had been a tremendous growth in liquor drinking, which did not stop but went underground after this statute. in 1753, a penalty of 10 pounds or hard labor for two months was made for selling spirituous liquors without a license. also licenses were restricted to people who were certified by four reputable and substantial householders to be of good fame and sober life and conversation. sellers had to maintain good order in their premises or forfeit 10 pounds. about 1754 only innkeepers, victuallers, and vendors paying rent of at least 200 shillings could sell gin at retail. the punishment for the second offense was whipping and imprisonment. that for the third offense was transportation. about 1754 only innkeepers, victuallers, and vendors paying rent of at least 200 shillings could sell gin at retail. the punishment for the second offense was whipping and imprisonment. that for the third offense was transportation. in 1751, additional duties were placed on spiritual liquors to discourage immoderate drinking going on by people of the meanest and lowest sort to the detriment of the health and morals of the common people. in 1761, these duties were again raised. in 1768, officers were authorized to seize all horses, cattle, and carriages used to transport foreign spirituous liquors for which duties had been evaded. in 1773, the penalty for selling without a license was raised to 50 pounds, which could not be mitigated below 5 pounds. half the forfeiture was to go to the suer. the informer system for enforcing laws had its drawbacks. informers were not trained and were sometimes retaliated against for informing. sometimes this meant being tortured to death. sometimes there were schemes in which a leader of thieves, would take a profit in the stolen goods by posing as a good citizen who tracked down and returned them to the owners for a fee. also he might inform on his companions to get the reward for informing or to punish a troublesome one. sometimes the owner of goods was involved in a fake robbery. an effort in 1749 to turn the whole haphazard system of informers, into a specialized organization for the detection and apprehension of criminals had caused a mob to form and make threats; englishmen associated a police force with french tyranny. nevertheless, about 1750, sir john fielding, a bow street magistrate, and his half-brother picked men to police the street under the direct control of the bow street magistrates. this first police district made an impact on the increasing violence of the times. in 1753, a proposal before parliament to have a national census was also defeated by public fear of liberty being curtailed by having to make account of the number and circumstances of one's family and giving out information that could be used by enemies both in the realm and abroad. though grammar schools were endowed for the education of local poor boys, they sought fee-paying sons of gentlemen. they now taught arithmetic as well as reading and writing. translation and reading of latin is still important, e.g. aesop's fables, cicero's letters, caesar's commentaries, ovid, livy, virgil, horace, pliny, juvenal, and plautus. the "eton grammar" book replaced the "royal grammar" as the standard for latin and english grammar. the boys lived in boarding houses superintended by "dames" or older boys. there were usually two boys to a bed. there was bullying and initiation ceremonies such as tossing small boys up from a held blanket or having younger boys run naked in the snow. there were occasional rebellions by the boys and fights with the townspeople. flogging with a birch or caning with a rod until blood was drawn from the bare buttocks was the usual punishment. there were some national boys' boarding schools such as eton, winchester, and westminster. in these schools, boys could mix with sons of rich and powerful people, thus establishing important connections for their adult life. but there was more bulling of small boys by large boys at these schools and the smaller boys became menial servants of their seniors. occasionally there were student riots. however, most grammar schools were not residential. because the grammar schools were limited to boys, many boarding schools for girls were established. tradesmen's daughters were often sent to these to learn to act like ladies. most upper class girls were taught, at home or at school, english, writing, arithmetic, drawing, courtly dancing, needlework, music, and french. dissenting academies were established for those who did not pass the religious tests of the grammar schools. pencils were now in use. sons of gentlemen usually took "the grand tour" of the continent before going to university. these tours lasted for months or years, and always included paris and a protestant french university. the students went in groups with tutors. the chief purpose was now cultural, instead of practical. on these tours there was often misbehavior such as drinking and fighting. in 1720, travelers checks were developed for those on the grand tour. the universities began to teach science. the new professorships at cambridge university were: chemistry, astronomy, experimental philosophy, anatomy, botany, geology, geometry, and arabic. ideas in geology challenged the bible's description of the creation of the world and there was a controversy over the origin and nature of fossils. in 1715, a large pointed weapon of black flint was found in contact with the bones of an elephant in a gravel bed in london. oral and written examinations began to replace disputations. few professors lectured. dissenters were excluded from universities as well as from offices and grammar schools. oxford and cambridge universities were open only to members of the church of england, so other universities were established for dissenters. they taught geography, mathematics, science, physics, astronomy, mechanics, hydrostatics, and anatomy. at oxford and cambridge and harvard universities, students in science were relegated to different instructors, buildings, and degree ceremonies than students in literature, who often looked down on them as socially and intellectually inferior. the inns of court had ceased to provide residence. the period of education at law school at the inns of court was now reduced in 1760 from seven to five years for ordinary students and to three years for graduates of oxford or cambridge universities. the textbooks were: "doctor and student" by christopher saint-german (1518) and "institutes of the laws of england" by thomas wood (1720). most landed families tried to ensure that at least one member of the family in each generation was educated at the inns of court after going to oxford or cambridge. in 1739, attorneys formed a "society of gentlemen practitioners in the courts of law and equity". in order to earn a living, most attorneys had to attach themselves to some great patron and serve his interests. so it was hard for an ordinary person to find an impartial attorney or to find any attorney willing to contest a powerful family. the first encyclopedia came into existence in 1728. in 1740 was the first public circulating library in london. samuel johnson put together the first dictionary in 1755. it standardized spelling and pronunciation. then came dictionaries for the arts, sciences, and commerce. there were histories with political biases such as the earl of clarendon's "history of the great rebellion". alexander pope wrote witty satire on human faults of the period such as "rape of the lock". daniel defoe wrote "robinson crusoe", "moll flanders", and "the poor man's plea" protesting disparity of judicial treatment of rich and poor, for instance for drunkenness. henry fielding wrote one of the first novels: "tom jones". joseph addison wrote essays on social behavior. jonathan swift wrote the satire on the times "gulliver's travels". samuel richardson wrote some of the first novels, such as "clarissa"; he wrote on values such as religious faith, moral virtue, and family closeness. catherine macaulay started writing her weighty and impressive "history of england". many schoolmistresses wrote textbooks on a variety of subjects. poet and essayist hester chapone wrote "letters on the improvement of the mind". elizabeth carter wrote poetry and translated greek works; her work was published in "the gentleman's magazine". hannah more wrote the play "the inflexible captive". the diaries of caroline girle powys daniel told of her extensive travels in the nation, and the various life styles of polite society she visited. defoe's newspaper was the first great political journal. he claimed that the people have a right to control the proceedings of parliament. essayists like richard steele, who introduced the periodical essay in his newspaper, and joseph addison, in his newspaper, wrote in a conversational style about the social life around them and the thoughts and behavior of common men and women in a light and good-humored way. they separated humor from the old-style farce and gave it taste and gentility. and with this came a moderation, reserve, and urbanity in matters of religion, politics, and society. religious issues even became a matter of indifference. fairies, witches, astrology, and alchemy were no longer taken seriously by educated men. tales of fairies, witches, ghosts, and miracles were deemed appropriate for children. childrens' stories were becoming a distinct literary form. nursery rhymes included "hush-a-bye baby on the tree top" and the five little piggies. "mother goose's melody" was published in 1765. there were picture books for children such as cinderella, red riding hood, and sleeping beauty. craftsmen made small models of their wares, such as dolls' china, dolls' furniture, silver, and flat lead soldiers. babies had rattles and teething rings. in 1710 copyrights for books was given for 14 years, renewable for another 14 years. alexander pope's translation of the iliad and odyssey made him financially independent. he collected advance payments from subscribers who would be listed in the book. a new book industry emerged in london with booksellers as master manufacturers who employed writers, authors, copyers, and subwriters. booksellers sold books of sermons, histories, political and literary satires, literary criticism, and dictionaries. there was a growing popularity of novels. books were expensive to buy. regular magazines on the new and strange were published. there were three daily, six weekly, and ten thrice yearly newspapers. newspapers increased in number from 8 founded in 1700 to a total of 25 in 1727. by 1753, there were over a million throughout the country. workmen usually began their day by reading a newspaper at a coffee house. authors of books which have been registered at the stationers hall shall have the sole liberty of printing and reprinting such book for 14 years. others who print or sell or publish such shall forfeit the books and pay one penny for each sheet found in their custody, 1/2 to the queen and 1/2 to the suer. the printer shall give a copy of each book printed to the company of stationers, the royal library, the libraries of the oxford and cambridge universities, and certain other libraries. in 1775, the two universities in england, the four universities in scotland, and the several colleges of eton, westminster, and winchester were given in perpetuity a copyright in books given or bequeathed to them. the british museum was incorporated to hold the collections of robert cotton of manuscripts, books, records, coins, and medals and of hans sloane, which contained rare books, coins, precious stones, pictures, plants, and mathematical instruments and had been left to the public. italian opera was introduced in 1706 by georg handel on his visit to england. his music became the standard music of georgian england. the academy of ancient music was founded in 1710. it set the standard of selection and performance. in existence were the violin (including ones made by stadivari), viola, cello, double bass, oboe, trumpet, clarinet, bassoon, trombone, horn, flute, harp, organ, harpsichord, in which the strings were plucked, and piano, in which the strings are struck by little hammers. orchestras had at least thirty members. many hymns were written. painting by artists developed. gentlemen had portraits painted of their horses and dogs as well as of family. joshua reynolds painted the wealth and beauty of england. painters such as gainsborough did landscapes and dramatic history paintings too, but neither of these sold as well as portraits. scenery was painted for the theater. places of business had signs painted which portrayed animals. coaches were painted with mythological creatures and such. gentlemen collected antique statuary and painting, such as by rembrandt and rubens. in 1711 an academy of painting was founded, which included women painters. the first public exhibition of paintings was in 1760. the society of artists was formed in 1761 and incorporated by royal charter in 1765. this differentiated them from the painter-stainers company of face painters, coach painters, and house painters. the royal academy of london was founded in 1768 to merge all private academies and societies into one official body and to recognize the best artistic work. joshua reynolds was its first president. it was at first financed by the king. under george i, sculptors became distinct from masons. they did monuments and portrait busts of the royal family, nobles, and great men. from italian influence, palladian architecture came into vogue. it was typified externally by a panoramic look achieved by horizontal lines, balanced alternatives of plain wall and openings, and portico with a heavy pediment like the front of a roman temple. stucco was often used to plaster housefronts, flute columns, and ornament pediments. architects took students. designers of engraved, etched, and historical prints were given the sole right to print them for 14 years. copiers had to forfeit 5s. per print. foreigners were now interested in learning about english life, philosophy, and opinion. they learned english to read english literature such as shakespeare. no longer were france and italy the only centers of culture and influence on other nations. by 1713, england was the leading sea power by far. the royal society was still the principal focus of scientific activity. issac newton was its president for several years and drew in more foreigners. its members were mathematicians, chemists, botanists, physicians, engineers, authors, poets, and theologians. papers given there generated much discussion at its meetings. newton opined that particles attract each other by some force in a similar way that large bodies attracted each other. this force in immediate contact was exceedingly strong, at small distances performed chemical interactions, and at greater distances had no effect. also there were local associations and societies. there were learned journals such as "philosophical transactions". in 1714, the mercury thermometer was invented by gabriel fahrenheit of germany; this was more accurate than the alcohol and water thermometer. the hydrometer, which measures air humidity, was also invented. these made possible weather forecasting. in 1718 the french chemist etienne geoffroy published a table of affinities among chemical substances. carolus linneaus, a swedish naturalist and botanist, established the scientific method of naming plants and animals by genus and species. when he showed that there was a sexual system in plants, church authorities were so shocked that they suppressed this knowledge as they did other scientific knowledge. in 1727, rev. stephen hales discovered the ways that water that plants lost by evaporation was restored by the roots up the stems. he found that gas could be obtained from plants by dry distillation and invented a way to collect gases by heating certain substances. he made ventilators for ships, prisons, and granaries, using the method of injecting air with bellows. this saved many lives in the prisons. hans sloane, the son of a receiver-general of taxes, who became a physician, had collected hundreds of species of plants in jamacia while physician to its governor. he became physician to george ii and was a benefactor to many hospitals and devised a botanic garden in london for the society of apothecaries. in 1735, george hadley, a london lawyer and philosopher, determined that the cause of the trade winds blowing from the west direction was the rotation of the earth. benjamin franklin in 1743 observed that a particularly violent storm was in boston a day after a particularly violent was in philadelphia, and realized that they were the same storm, even though the storm's surface winds were from the northeast. he determined that atlantic coastal storms traveled from the southwest to the northeast. in 1738 daniel bernoulli, a swiss university lecturer in physics, mechanics, medicine, and anatomy, showed that as the velocity of horizontal fluid flow increases, its pressure decreases. this followed from his theorem that the total mechanical energy of a flowing liquid, comprising the energy associated with fluid pressure, the gravitational potential energy of elevation, and kinetic energy of fluid motion remains constant; that is it is conserved. he demonstrated that the impact of molecules on a surface would explain pressure, and that assuming the constant random motion of molecules, pressure and motion will increase with temperature. he explained the behavior of gases with changing pressure and temperature. in 1754, scotsman physician joseph black identified carbon dioxide, the first gas recognized as distinct from everyday breathing air. he did this by using a balance to weigh alkalis before and after exposure to heat. they lost weight by losing carbon dioxide. he then ascertained the effects of carbon dioxide on animals and its production by respiration, fermentation, and burning of charcoal. at this time, all flammable materials were thought to contain "phlogiston", which was given off as they burned and was associated with the transfer of heat. plants were thought to remove phlogiston from the air and therefore burned when they were dry. in 1774, joseph priestly, a nonconformist minister, schoolmaster, and tutor, discovered oxygen by heating red oxide of mercury. he got interested in the study of gases by watching the process of fermentation in a brewery next to his house. his gas collection techniques enabled him to work with gases soluble in water. he showed that the processes of combustion, respiration, and putrefaction caused one-fifth of air exposed over water to disappear, and that plants restored air vitiated by these processes. when he isolated oxygen, he noted that it was better than air in supporting respiration and combustion produced by heating certain metallic nitrates. the differences between acids, bases, and salts and their relationship to one another became understood. there was some theoretical as well as empirical knowledge about metals, e.g. in boiling points, intermetallic compounds, and changes in properties. static electricity was being discerned. it had been noticed that shaking a mercury barometer produced a strange glow in its "vacuum". experiments showed that a glass rubbed in vacuo would shine brightly and that an exhausted glass globe rapidly whirled on a spindle and rubbing against the hand produced a brilliant glow. and further, as newton wrote: "if at the same time a piece of white paper or white cloth, or the end of ones finger be held at the distance of about a quarter of an inch or half an inch from that part of the glass where it is most in motion, the electric vapor which is excited by the friction of the glass against the hand, will by dashing against the white paper, cloth, or finger, be put into such an agitation as to emit light, and make the white paper, cloth, or finger, appear lucid like a glowworm". in the study of electricity, conductors and insulators were recognized. there were demonstrations of electrical phenomenon such as seeing brandy ignited by a spark shooting from a man's finger and transferring an electrical impulse among a circle of people by their holding hands. electricity was stored in an early type of capacitor. benjamin franklin "caught" lightning with a sharp pointed wire attached on top of a kite which led down to a key. when a thunder cloud electrified the kite, a charge could be seen coming from the key to an approaching finger. this charge was stored and then reproduced to create the same feeling of electrical transference among hand-holders as a rubbed glass globe, thereby illustrating that it was the same phenomenon as electricity. this countered the theological belief that thunder and lightning were signs of divine displeasure or the work of the devil. he invented the lightening rod, which was then used to protect houses. about ten years later, the first lightening rod on an english church was erected. franklin theorized that there were electric charges everywhere and designated them as positive or negative. he observed that opposite charges attracted each other, but that like charges repelled each other. in 1766, joseph priestly did an experiment suggested by franklin and showed that electrical force follows the same law as gravitational force; that is, that the attraction or repulsion between two electrical charges varies inversely to the square of the distance between them. joseph-louis lagrange from france developed differential equations. natural history museums were established. a group split off from the royal society to show collections of curiosities. in 1754, a self-educated mechanic founded the society for the encouragement of arts, manufactures, and commerce. it had sections on agriculture, manufactures, mechanics, chemistry, liberal arts, and trade and colonies. it sponsored contests at which prizes were given, such as that in 1761 for the best invention of a machine that would spin six threads of wool, flax, cotton, or silk at onetime with only one person attending it. machines still mostly relied on human, animal, and water power. abraham darby was a quaker and millwright who made large cooking pots of iron, which cost less than bronze. around 1713, he experimented with various substances to take the place of wood charcoal in iron smelting. coal was a remote possibility. in forging or working metals coal had more or less the same qualities as wood charcoal, but this was not the case in smelting ores, especially iron ore. coal contained sulphur compounds which caused the iron ore to deteriorate. so he controlled the burning of coal to burn out these impurities, which produced coke. his son took over after his death and improved the methods of coking, strengthened the bellows, and added ore limestone and other reagents to the mixture. by 1756, his large blast furnace using both pit coal and wood charcoal was very productive. he made iron goods of such quality as those previously imported. in 1767, richard reynolds replaced the wooden rails connecting a blast furnace to mines with cast iron rails. he had apprenticed as a grocer and then became a partner in a large ironworks of darby, whose daughter he married. after darby died and before darby's sons became of age, reynolds was in charge of the ironworks. he cast cylinders of the early steam engines. in 1749 john roebuck, a physician and son of a prosperous manufacturer of sheffield goods, found a cheaper way to manufacture sulphuric acid. he did this by using leaden chambers instead of glass globes to collect the vapor from burning nitre and sulphur over water. this reduced the cost of sulfuric acid to one-fourth of its previous cost, so that sulfuric acid came to be used to bleach linen instead of sour milk. he also made cast iron into malleable iron by smelting iron using coke from pit-coal instead of charcoal. but flooding in his mines and further ventures resulted in his ruin and bankruptcy. thomas newcomen, a baptist ironmonger, blacksmith, and locksmith, supplied iron tools to mine workers. he was aware of the problem of flooding of mines and the awkward system of pumps which were used one above the other and were powered by teams of horses. he made a very valuable contribution to power generation by inventing the atmospheric pressure steam engine around 1712. he did this by connecting theory with experiment, through the use of scientific knowledge, especially the royal society's investigation into atmospheric pressure. first cold water was poured on a cylinder in which a piston could move up and down. this caused steam inside the cylinder to cool and condense into water. the vacuum created inside the cylinder under the piston caused atmospheric pressure on top of the piston to push the piston down. the piston was attached by a rod to the end of a beam which end then swung down from a point on a vertical stand to which it was attached. when the beam swung, its other end, which was attached to a rod connected to a pump, rose, thus working the pump. then steam from water heated in a boiler under and communicating with the cylinder was allowed into the cylinder under the piston. this decreased the atmospheric pressure on the piston from above and allowed the piston to rise by a counterweight on the rod over and connecting to the pump. boys opened and closed the steam valve, which let steam into the cylinder from below, and the water valve, which let cold water pour on the cylinder from above. then the boys were replaced by the valves being connected to the oscillating beam which caused them to open and close at perfectly regular intervals. a story gives the credit for this improvement to an inventive valve boy who wanted to play with his friends. in 1712, the mining industry used this steam engine to pump water out of mine-shafts which had flooded. these engines were also used to supply water to reservoirs locks at canals, and drinking water facilities in towns. one such engine developed power equivalent to fifty horses working at one sixth the cost. it was the first automatic machine since the clock. then james watt invented the steam engine which used steam as a force acting on the piston. watt made his living making scientific instruments for glasgow university. around 1764, he was fixing one of newcomen's engines belonging to the university, when he saw its inefficiencies, such as the loss of heat when the cylinder was cooled. he saved this heat energy by having the steam condensed in another vessel distinct but connected to the cylinder. this condenser was kept constantly cool by cold water. so the condensed steam was pumped back into the boiler and it circulated continuously, thus obviating the need for constant resupply of water. in order to avoid the necessity of using water to keep the piston air-tight, and also to prevent the air from cooling the cylinder during the descent of the piston, he used the expansion of the steam to push the piston instead of atmospheric pressure. then, in order to expand the use of the steam engine beyond that of a pump, he converted the oscillating motion of the beam into rotary motion. he formed a partnership with john roebuck, who had a two-thirds interest. but when roebuck needed money, he sold his interest to matthew boulton. boulton wanted better power that that of his watermill for his workshops that made metal buttons, watch chains, shoebuckles of engraved steel, ornamental bronzes, vases, chandeliers, tripods, silver and plated wares, and imitation gold and tortoiseshell work. in dry weather, about eight horses were needed to aid in driving the machinery. a steam pump could pump water from the bottom of the watermill to the top to be used again. he had built up this factory of five buildings and six hundred workers, with 9,000 pounds derived from his marriage to an heiress. by 1774, the partnership had built a model steam engine with rotary power whose design could be sold. the price of the engine was set as the amount of money saved on fuel costs in the first three years of its operation. this machine was a relatively economical user of energy, capable of performing almost any kind of work. about 1750, john wilkinson, the son of a farmer who also oversaw an iron furnace, substituted mineral coal for wood charcoal in the smelting and puddling of iron ore. in 1766 he made it possible to transport coal out of mines on rail wagons drawn by horses. as father of the iron industry, he made iron chairs, vats for breweries and distilleries, and iron pipes of all sizes. he provided watt with metal cylinders of perfectly accurate shape, which were necessary for the smooth working of watt's steam engine. in 1775 he bought a pumping steam engine from boulton and watt's company for his ironworks. it pumped three times as fast as newcomen's engine. watt's steam engine came to be used for power-loom weaving and then for all sorts of manufactures. it would put england ahead of every manufacturing country in the world. millwrights built, installed, and later designed not only steam engines but the machinery that they drove. these men were essential in setting up the first factories. they were the most imaginative and resourceful craftsmen. they knew how to use a turner's, a carpenter's and a blacksmith's tools and had supervised or done smith work, brick-laying or stone-mason's work in erecting and maintaining windmills with their many gears and bearings. there was a good deal of variety in mills, as well as in the structure and workmanship of them, some being worked by horses, some by wind, and others by water. they had some knowledge of arithmetic and practical mechanics. they could draw out a plan and calculate the speed and power of a wheel. although technically in a branch of carpentry, the millwrights learned to work with metal as well. metal was superior to wood not only because of its strength but because wood parts were irregular in motion and wore out rapidly. so iron and brass parts came to replace wood and leather parts. in 1728, j. paine got a patent for rolling iron instead of hammering it. the iron bars, being heated in a long hot arch or cavern passed between two large metal rollers, which had certain notches or furrows on their surfaces. around 1740, clockmaker and quaker benjamin huntsman was struck with the difficulty of finding finely tempered steel for the springs of his watches and pendulums of his clocks. he experimented for years to find a homogeneous and flawless metal, and finally invented cast steel, which was much harder than ordinary steel. he did this by remelting refined high quality wrought iron bars at very high temperatures in sealed fireclay crucibles, together with small quantities of charcoal and ground glass as reagents. this distributed the carbon evenly in the metal, which hammering could not do. he approached the sheffield cutlers, who finally agreed to try his cast steel for fear of losing their business to some other manufacturers who were approaching huntsman. since huntsman had no patent, he worked at night and employed only men who would keep his secret. his steel was made at night. his factory became prosperous about 1770 and the excellence of his steel manufacture was never equalled. steel and wrought iron was scarce and expensive. around 1748, iron founder samuel walker, discovered huntsman's secret by appearing at huntsman's factory disguised as a shivering tramp who asked to warm himself by the furnace fire. he feigned sleep while watching the whole process. when he began to make cast steel, his annual output grew from 900 pounds in 1747 to 11,000 pounds in 1760 and he made a fortune. silver was plated over copper from 1751. white metal from tin and antimony was used from about 1770. the brass industry was beginning to produce brass from copper and zinc that was as good as foreign brass. the secret of plate-glass manufacture came to england in the 1770s. in 1773, a corporation was set up for the manufacture of plate glass. it could raise joint-stock because of the great risk and large expense of the undertaking. in 1775, chemist william cookworthy was given a fourteen year patent for the discovery of certain clay and stone in england from which he made england's first true porcelain, i.e. that which could sustain the most extreme degree of fire without melting, and also had grain as smooth and lustrous, and the transparency and beauty of color, equal in degree to the best chinese or dresden porcelain. the import duties on diamonds, pearls, rubies, emeralds and other precious stones and jewels was dropped to increase the business of cutting and polishing them. the world's first chocolate factory was set up in england in 1728. the fanmakers were incorporated in 1709. a linen company to sell cambricks [a fine white linen] and lawns [a thin and fine linen] was incorporated in 1763. a free market for fish was established in westminster to supplement the free fish market in london to prevent forestalling and monopolizing of the fish industry and to increase the number of fishermen. duties for its maintenance were paid by the fishermen. certain men were given the right to incorporate fisheries of white herring for twenty one years to improve the fisheries and give employment to the poor. they were authorized to sell subscriptions and to build ships provided the fishery employ 100,000 in such fishery. there were restrictions on taking fish from rivers during their breeding season. herring fishermen were allowed to land and dry their nets and erect tents and pickle, cure, and reload fish on uncultivated land up to 100 yards beyond the high water mark all any shore, forelands, harbors, and ports, without paying the landholder. later, a bounty of 30s. per ton was authorized to be given for vessels that were fitted out and used for white herring fishery. anyone wishing to be admitted to the levant (turkey) trading company was to be made free of such on paying 20 pounds, so that this trade may be increased. in the 1760s the first cooking school was established by mrs. elizabeth raffald, a servant. as for health, there were many occupational hazards. these included paralysis by mercury of refiners of silver and gold, paralysis by mercurial fumes of molten lead by plumbers, palsy of glaziers working with melted lead and of watch gilders, lead poisoning of painters, blinding by sawdust of sawyers, and the affects of fumes on pewterers and letter founders. particles of copper were breathed in by copper workers, whose hair and beards then turned green. braziers became deaf. hairdressers, bakers, masons, bricklayers' laborers, coal heavers, chimney sweeps, flax and feather dressers, and workers in leather warehouses suffered pulmonary diseases. chimney sweeps also had warty skin cancer from their bodies being habitually covered with soot and the lethal cancer of the scrotum. working with charcoal fires affected confectioners, chocolate makers, and sail-cloth makers. tanners, catgut makers, and tallow-candle makers became nauseous. heavy work weakened many bodies and caused hernias. bending over work for long hours caused stooped posture and hump backs. the association between dirt and disease was just beginning to be made. the principles of infection and hygiene were not well understood. bathing every couple of months was not unusual. there was some theological feeling that cleanliness betokened pride and filthiness humility. most houses had a bathtub that could be placed beside the fire in a bedroom. about 80% of the population had been getting smallpox, which blinded, maimed or disfigured many. deaths from smallpox were only occasional in the country, but constant in london, where about 13% of every generation died from it. making death commonplace, especially in the winter months when thick, dirty clothes were worn day and night, were typhus, which was carried by lice; typhoid, which was spread by flies from horse dung; tuberculosis; and influenza. dysentery and diarrhea made death commonplace especially in the summer when flies transmitted bacteria from filth to food and the water was its most foul. there was great meaning in the prayer "now i lay me down to sleep; i pray the lord my soul to keep; if i should die before i wake, i pray the lord my soul to take." thyphus spread easily in hospitals and gaols where vermin could live in the beds made of wood. colds and toothache were also common. venereal disease was not uncommon among the well-to-do in london. condoms were used to deter disease, but were still crude, coarse, uncomfortable, and unreliable. london had almost double the mortality rate of the nation. the number of baptisms in london were about 80% of its burials. about 40% of the deaths in london were among children under two, due to infantile diseases fostered by malnutrition, maternal ignorance such as giving babies adult food, ill-health, bad water, dirty food, poor hygiene, and overcrowding. many children died from diptheria, measles, scarlet fever, and smallpox. ten or twelve children with three or four surviving was a common family pattern. many well-to-do in london kept their children in the country for their better health. no matter what the ailment, physicians regularly bled patients and often gave them enemas with wooden funnels. sometimes a blister or irritant was applied to the skin to draw out the evil humors. cupping was used to provide suction to remove pressure from various parts of the body. also used were poultices, ointments, and herbal treatments, notably quinine. opium was given to deaden pain. there were about 70 drugs in use. charms, spells, astrology, and folk remedies still played a major role in medicine. a physician attended surgeries to give advice. physicians could visit apothecary shops once a year and throw away any drugs falling below an arbitrary standard of excellence. in 1703 the house of lords decided a jurisdictional contest between the college of physicians and the society of apothecaries. it permitted the apothecaries to direct the remedies as well as to prepare them, although they could only charge for the drugs they provided. the poor sought advice from apothecaries. there was progress in health. scurvy virtually disappeared as a cause of death due to the eating of more vegetables. and people were cleaner when wearing cotton, which had to be washed. in 1721, free inoculations for smallpox began in england, pioneered by lady mary wortley montague, also a poet and letter writer. she led the way by having herself and her son inoculated. theologicians denounced this practice as a diabolical interference with disease sent by providence for the punishment of sin. in 1727 surgeon william cheselden, whose master was specially licensed to perform the operation of removing stones in the hospital, reduced the death rate for removing stones due to hemorrhage, shock, and infection down to 17% by his invention of a lateral operation. he also published an anatomy book and treated certain kinds of blindness by forming an opening in the eye to serve as an artificial pupil. sarah wallen mapp was a famous bone-setter. nutritional deficiency diseases were beginning to be understood. in 1753, james lind, a surgeon in the navy who noted that more men died of scurvy than in battle, published his work on his controlled experiment on seamen showing that oranges, lemons, limes, green food, and onions cured scurvy. he published his methods of prevention and cure of malarial fevers and his method of disinfecting ships with the smoke of wood and gunpowder. in 1761, he discovered that steam from salt water was fresh, and proposed a method of distillation to supply ships with fresh water. in 1761 giovanni morgagni from italy opined that disease resulted from a breakdown of organs and tissues that was viewable on autopsy. he wrote an extensive book showing the anatomy of diseases, e.g. affections of pericardium and aorta, (e.g. aneurysm), valve diseases, ulceration, rupture, dilation, and hypertrophy. he associated clinical observation with anatomy of disease, e.g. attacks on upper part of chest on left side and difficulty breathing and numbness of left arm all ceasing with exertion with dilation of aorta and hardening of arteries, causing delay of blood in the aorta, in the heart, and in the lung vessels. bernoulli showed that the living human body constantly changes so that all its particles are renewed in a certain number of years. frenchman dr. pierre fauchard, the father of dentistry, recommended rubbing one's teeth and gums with a piece of sponge. his book of 1728 described methods and instruments. since three out of four babies died shortly after birth, beds in hospitals for pregnant women were established starting in 1739. the next year physicians began to replace midwives. a hospital was established for abandoned foundling children in 1739 so they wouldn't die, as they usually did, in the care of parishes or workhouses or be exposed in the streets or left on door steps of the wealthy. it was besieged by women with babies in their arms. in 1762 a statute made the principles of the foundling hospital obligatory for all london parish children under six; they were to be sent to nurses outside london who were to be paid at least 2s. a week by the parish. in 1766, this was extended to all parishes, and nurses who cared for a child well for a year was given a reward of at least 10s. also, parish children were not allowed to be apprenticed for more than seven years or until age 21 and an apprentice fee of at least 4 pounds, 2s. was to be paid to the master or mistress by the parish. after 1740, there was a steady growth of population due to improved midwifery. william smellie taught scientific midwifery in london from 1741 and wrote a "treatise on midwifery" in 1752, which had a clear explanation of the mechanism of labor. at this time there were several maternity hospitals. forceps existed for difficult deliveries. in 1750, dr. cadogan wrote his book: "an essay on the nursing and management of children, which made a great improvement in the care of young children. for instance, it recommended loose clothing, no tight swaddling clothes, and a simple diet. swaddling clothes were used to retain a baby's evacuations but produced discomfort and serious skin conditions. a hospital was founded for venereal diseases in 1746, another as an asylum for the penitent and orphaned girls who might otherwise be inclined to prostitution, and yet another for prostitutes in 1758. coitus interruptus was widely used for birth control. there were also clandestine abortions and intentional neglect of newborns. melancholy was widespread. suicides were frequent and drugs were sold for this purpose. in 1725, the mentally ill were classified as curable or incurable. there were many private lunatic asylums. a lunatic who was furiously mad and dangerous was required to be safely locked up or chained in his place of settlement. there were frequent and dangerous abuses in madhouses, so in 1774, no one may keep or confine more than one lunatic without a license granted by the royal college of physicians or forfeit 500 pounds. a justice of the peace and a physician inspected all madhouses to observe conditions and care of patients there. if refused admittance, the license was forfeited. in 1712 was the last time a monarch touched a person to cure him of a malady such as scrofula. in 1743 surgery students began to dissect corpses with their own hands to better learn anatomy. in 1744 the company of surgeons was separated out of the company of barber-surgeons. the barbers were proscribed from performing surgery and had to have a separate corporation from the surgeons because of the ignorance and unskillfulness of barbers healing wounds, blows, and hurts e.g. by blood letting and drawing of teeth. there was a surgeon's hall, officers chosen by the surgeons, and bylaws. the surgeons were required to examine candidates for the position of surgeon in the king's army and navy. they were exempted from parish, ward, and leet offices, and juries. in 1752, a statute provided that the corpses of murderers were to be sent to the surgeon's hall to be anatomized, for the purpose of deterring murders. the penalty for rescuing the corpse of a murderer was to suffer death. the first dispensary for the poor was established in 1769 to give free medicine and treatment to the infant poor, and then to the infants of the industrious poor. the progress of science was seen to threaten the authority of the church. there was a general belief in god, but not much attention to jesus. feared to come were free thought, rationalism, and atheism. there was still a big gap between local parsons and bishops, who were educated, well-off, and related to the aristocracy. on the whole, preachers talked about morality and christian belief. they stressed good works and benevolence. but many protestant clergy were more concerned with their own livings than with their parishioners. they were indolent and did not set a good example of moral living. from 1715, freemasonry spread and swiftly provided a spiritual haven for those who believed in god and desired ritual and mysticism. about 1744, john wesley became the leader of the methodist religious movement for the mining and industrial laborers. he lead an aesthetic life, eating bread and sleeping on boards. the movement was called methodist because of its methodical regularity of living. it was characterized by an evangelical revival and a promise of individual salvation. the person to be saved from the horrors of eternal damnation in hell was to discipline himself to regular prayer, self-criticism, and hard work and to forsake worldly pleasures such as drinking, overeating, and even frivolous talk. wesley believed in witchcraft and in magic. he opined that bodily diseases and insanity could be caused by devils and some dreams are caused by occult powers of evil. with the methodist movement, there was a concomitant growth of philanthropic activities by the methodists. they gave to the poor, and visited the sick and the imprisoned. wesley preached in the open air where all who wanted to attend could and also could wear whatever clothes they had. though large crowds of poor people were feared because of their mob potential, their meetings were stormed as has been quaker meetings, with the shouts of "the church in danger". the methodists' homes were invaded and their belongings destroyed or taken or their persons beaten with tacit permission of authorities. some justices of the peace drafted preachers into the army or navy as vagabonds. eventually, however, the methodist revival imbued energy and piety into the lethargic clergy of the established church. a new moral enthusiasm and philanthropic energy grabbed the nation. prisons were reformed, penal laws made more wise, slave trade abolished, and popular education given momentum. in the established church, charity gained precedence over theology and comfort over self-examination and guilt. evangelist george whitfield preached calvinism and it split off from methodism. calvinism went into full decline. presbyterianism collapsed into unitarianism and there was a general tendency towards deism. church sanctuary was abolished for those accused of civil offenses. there was much travel by scheduled coaches, which usually carried several passengers and were drawn by four horses. regular service of public vehicles to and from london went four miles an hour; it took two days to go from london to oxford. it was not unusual for a coach to bog down or overturn. sometimes it had to detour around an impassable stretch of road or borrow a couple of oxen from a nearby farm to get out of a quagmire. men and horses drowned in some of the potholes. robbery was endemic and some of the roads were so unsafe from highwaymen that bands of armed horsemen were hired to accompany the coaches. it was not unusual to come across gibbets for hanging at crossroads. at coach headquarters in inns in london, there were casual workers who associated with gangs of thieves specialized in passengers' goods. traveling merchants preferred packhorses to carts because they could cross overland or through watercourses more easily. these pack horses traveled in regular caravans in single file. the leader had a bell around his neck to warn, from a distance, riders or carts coming in the opposite direction. carts traveled about two miles an hour. in 1711 the trustee system superseded administration by the justices of the peace of the turnpike system, including tolls and toll booths. the toll booths were frequently attacked by riotous mobs. so anyone pulling down or destroying turnpike gates at which tolls are to be paid shall go to prison or put to hard labor in a house of correction for three months without bail. he shall also be whipped in the market place between 11:00 and 2:00. if he offends a second time, he shall be transported for seven years. later the penalty of prison up to three years was added as an alternative. the hundred was to pay the damages up to 20 pounds. the penalty for threatening the toll collector or forcibly passing through was 5 pounds for the first offense, and 10 pounds for the second offense with imprisonment for one year for those who couldn't pay. by 1750, about 60 miles could be made in a day. the turnpike trusts took over most of london's major highways during the 1700s. there was no travel on sundays until 1750. in 1745, shocked by the difficulty caused by bad roads in concentrating the royal army to stop the scottish invasion, the king began systematically to improve all the roads. there was much road and highway widening and repair, and also river bank and pier repair, going on all over the country. marsh lands were drained. harbors were deepened. there were numerous statutes trying to adjust the needs of travel with the condition of the roads. for instance, there must be a pole between the wheel horses or double shafts. carriages, wagons, or carts drawn by more horses, oxen, or animals or with wheels bound iron tires, or with very heavy loads were observed to cause more damage, so they were restricted or had to pay higher tolls. then broad and smooth iron tires were observed to not cause the amount of damage as did narrow or irregular iron tires and their use was encouraged. from 1741, weighing machines were kept at toll gates. by 1766, turnpike roads had to be at least 30 feet wide; hedges and fences thereon had to be taken down by their owners. cartways to markets had to be at least 20 feet wide, and horseways 3 (later 8) feet wide. there were ditches, drains, and gutters to carry off water. names and abodes of owners were to be put on carriages, wagons, and carts or forfeit 2-5 pounds, except for carriages or coaches of a nobleman or gentleman for his private use or those drawn by only one horse or two oxen, or those with wide wheels and a light load. there were town name signs, direction posts, and milestones. in 1773, the surveyors and the commissioners of turnpikes were given authority to requisition local men, carts and draught animals for compulsory labor, or money instead, in maintaining the roads and making new ditches and drains. they could take any local sand, gravel, chalk, or stone from waste or common land or, if not needed by and satisfaction is made to the owner, from enclosed land. the surveyor was to be chosen locally for a year and could be given an allowance. new roads required the consent of the landowners and a negotiated price. a driver of a carriage, wagon, or cart on the public highway who by negligence or misbehavior causes any hurt or damage to a person or any other carriage or hinders free passage of any other carriage shall forfeit up to 20s. anyone leaving an empty cart or other obstruction on a public highway shall forfeit up to 20s. any cart, wagon, or carriage driven without a person on foot or on horseback leading it shall forfeit up to 20s. any driver of an empty cart, wagon, or carriage who refuses or neglects to make way for any coach or loaded cart, wagon, or carriage shall forfeit up to 20. any offender may be apprehended by anyone seeing his offense without warrant, who shall then deliver him to a constable or other peace officer. by 1719, the mail service was well-regulated. letter rates within 80 miles of london were 3d. per piece of paper, then 12d. per ounce. within 60 miles of new york city in america there were 4d. per piece of paper, then 1s.4d. per ounce. letters were still carried by post horses. from london to new york, they were 1s. per piece of paper for the first three pieces, then 4s. per ounce. in 1765, this rate was extended to all colonial ports. in 1754, canals began to be constructed linking the main rivers. horses or men hauled the barges from the land. now goods of many inland towns cheapened and reached a national instead of just a local market. in 1761 an almost illiterate man called james brindley cut the first real canal at worsley for the duke of bridgewater, who owned the coal deposits there. he kept the line of the canal at one level to avoid having to make locks. it crossed one river as a forty foot high aqueduct. he refused to use the beds of small rivers, whose sluggish flow gave no adequate security against silting. coal at the destination point of manchester fell to half its former price. after wedgwood headed a campaign to persuade parliament to construct a certain canal, he bought adjacent land on which he built a great factory. in 1713, the maximum interest rate that could be charged was reduced to 5% for the advancement of trade and improvement of lands because that rate was the norm in foreign lands. thus the maximum interest rate fell from 10 to 8 to 6 and then to 5%. when issac newton was master of the mint, he noted that too restricted a currency caused a high interest rate to prevail, which was bad for commerce and the plans to set the poor to work, but that too large a quantity of money in circulation caused interest rates to fall, which encouraged luxury imports and the export of bullion. the bank of england provided a safer deposit and lower interest than goldsmiths or scriveners. it also issued notes for 10 and 15 (since 1759), and 20 pounds. outside retail trade and wages payments, business was conducted on a credit basis with a paper promise to pay at some future date. check use was still formal and rare. tradesmen typically authorized their apprentices to "write off or draw" from their accounts, bringing their bank books. depositors authorized other people such as certain servants, relatives, cashiers, or company secretaries to make use of their accounts. after 1721, the bank dividend was about 6% a year. promissory notes are assignable and endorsable and the holder may recover against the signer or any endorser as is the case with bills of exchange. in 1775, no more promissory or other notes, bills of exchange, draughts, or undertakings in writing and being negotiable or transferable may be made for under 20s., because it was hard for the poorer sort of manufacturer, artificer, laborer and others to comply with them otherwise than by being subject to great extortion and abuse. (cash was to be used instead.) by 1711, government finances had become so chaotic that the chancellor of the exchequer sought to re-establish public credit by means of a chartered commercial company, the shares of which were offered in substitution for government stock. this south sea company was established in 1711 with a monopoly to trade in south america. the prospects of hugh profits sent the share prices soaring. there was also an increase in the money supply. these factors led to a speculation bubble in 1720 in this stock. also, many stock-jobbers promoted companies of every description, such as one to extract gold from sea-water. there was an insurance boom with about seventy insurance companies in existence, many virtually gambling in life contingencies. there was speculation in insurance for all types of occurrences, such as house-breaking, highway robbery, death by gin-drinking, and horses becoming disabled. the total capital invested in all these enterprises rose to over five times the cash resources of all europe. when the bubble burst, 100 pound south sea stock had gone up to 1050 pounds and back down again to 120. since the government had in effect bought this stock at a low price and paid off its debt with this stock at a high price, this bubble relieved the government of much of its massive debt. it also redistributed wealth. after the bubble burst, investors took refuge in investing in 3-4% government fixed-interest securities. a result of this bubble burst was the chartering of two corporations for marine insurance and prohibition of such by any partnership or firm. private persons could continue to write policies, and they chose lloyd's coffeehouse as their headquarters; it came to dominate the world of marine insurance after the two chartered companies came to concentrate on fire and life insurance. lloyd's list became the foundation for a new newspaper. there were speciality boxes at lloyd's such as on america or the baltic. many ships were reported captured by enemies or pirates, but underwriting insurance was a lucrative business for many. in 1717 the gold guinea was assigned a value of 21s. in 1774, the gold standard was introduced. in 1774, clipped and deficient gold coin was called in to be exchanged for new coin. local taxes were collected for the church, the poor, county courts of justice, borough administration, and highways. national taxes included the income, customs, and excise taxes. when the government tried to levy excise taxes on wine, tobacco, and then on cider, there was a public protest with mobs demonstrating against the power given to excise inspectors to search in people's homes. these excise taxes were no longer levied. duties were placed on items for encouraging industries within the country and to pay the expenses of government. there were more and higher duties to pay for war. at various times there were duties on hides, skins, seal skins, gilt and silver wire, malt, mum (strong beer made from malted wheat), cider, perry, spices, coffee, tea, cocoa nuts, chocolate, cocoa paste, snuff, chinaware, drugs, calicoes, herrings, apples, oysters, raw italian and chinese silk, gum arabic, gum senega, tallow, hogs-lard, grease, beaver skins and wool, imported brandy, raisins, coals and coal dust, coaches for one's own use or for hire (except licensed hackney coaches); silver plate owned by persons, corporations, and bodies politic; leases, bonds, and other deeds; licenses for retailing wine, beer, and ale; 5% of salaries, fees, and perquisites from office and employments including royal pensions and gratuities over 100 pounds. when the price of wheat was high, as in 1765, when it was 6s. per bushel, wheat products could not be exported. (at other times, they could not be imported.) duties on imported wheat, barley, rye, oats, beans, rice, indian corn were also dropped. the prohibition of importing salted beef, pork, bacon, and butter was dropped. in 1770, no live cattle, pigs, mutton, pork, beef, either fresh or salted could be exported or forfeit 50 pounds for every such animal or 5s. per pound of such meat. in 1773, peas, beans, bacon, hams, and cheese could be imported duty free, and in 1775 labrador codfish. in 1775, raw goat skins could be imported duty-free to improve the domestic manufacture of red, green, and blue leather. in 1773, there were given costs above which various commodities could not be exported: wheat at 44s. per quarter, rye, peas, or beans at 28s., barley and beer at 22s., oats at 14s. or forfeit the goods, 20s. per bushel and the ship or boat in which laden. (there are 8 bushes in a quarter.) a window tax replaced the hearth tax. these duties were 2s. on dwelling houses, increased by 6d. per window for houses with 10-14 windows, and increased by 9d. per window for houses with 15-19 windows, and increased by 1s. per window for houses with 20 or more windows, per year to be paid by the occupant. these were increased three more times, until the dwelling house duty was 3s. and the duty for 25 or more windows was 2s. another duty for war was that on imported starch, certain imported clothes, cards, dice, soap, vellum, parchment, and paper made in the realm (4d. 1s.6d. per ream depending on quality) or imported (1s. 16s. per ream). for pamphlets and newspapers made in the realm there was a duty of 2d. per sheet and 12d. for every advertisement. when the duty was paid, the paper was stamped. the penalty for nonpayment was 10 pounds for sellers and 5 pounds for those writing or printing on the paper. later, there was a penalty for sellers or hawkers of pamphlets or newspapers of imprisonment in a house of correction up to three months, and the apprehender got a reward of 20s. a parson marrying a couple without publishing banns or license could forfeit 100 pounds. not paying duties was punishable by various forfeitures of money. officers for duties could search warehouses on suspicion of concealment of coffee, tea, chocolate, or cocoa nuts with an intent to avoid duties upon oath before a duty commissioner or justice of the peace setting forth the grounds of such suspicion. a special warrant could be issued authorizing the officer to seize such goods. wars were funded not only by some duties, but by lotteries and short-term funding purchased at 5% yearly interest from the bank of england and by long-term funding by the sale of annuities. county militias could be raised and called out to march together in order to be better prepared to suppress insurrections or invasions. their horsemen were to be provided with broad sword, a case of pistols with 12 inch barrels, a carabine with belt and bucket, a saddle, and a bit and bridle. the foot soldiers were to be provided with a bayonet, a cartouch-box, and a sword. in the militia act of 1757, there were quotas for each parish, to be chosen by lot from lists of men 18-50 years old. after militia service for three years, one could not be called again until by rotation, and, if married, was allowed to practice any trade in which he was able in any town or place. while he was in the militia, his parish had to pay an allowance to his family, if distressed, the usual price of an agricultural laborer, according to the number and ages of the children. quakers could provide a substitute or pay money to defray expenses of a substitute for three years. exempt were peers, commissioned officers in royal army or royal castle, other military personnel, members of either university, clergymen, teachers of any separate congregation, constables and peace officers, and watermen of the thames river. this militia act was due to an invasion scare in 1756 because great britain then had no allies on the continent. the old strategy of maintaining a small army of 17,000 men and relying on volunteers had really depended on england's allies to tie down france's land forces. the militia act of 1757 was designed to reassure squires they would not be used as adjuncts to the army. only those with much property would be officers. enlistees could still carry on their trades and jobs. costs were to be from general taxation rather than by locality. but it was almost impossible to get officers and there were many riots when parish authorities tried to draw up lists of those liable to serve. in 1759 the navy prevented french invasion. able-bodied men without a calling, employment, or visible means of maintenance or livelihood may be searched for and conscripted into the army. volunteers who enlist shall be paid 40s. and may not be taken out of her majesty's service by any process other than for some criminal matter. king george ii was the last king to lead his troops into battle. later, parishes were given 20s. for every soldier they summoned. also, persons who had a vote for member of parliament were exempted. whipping was the usual punishment for offenses. a soldier who deserted or joined in any mutiny or sedition in the royal army within the realm was to suffer death or any other punishment determined by court martial. in 1760, a soldier (later, or a marine) who slept at his post, left his post before being relieved, communicated with any rebel or enemy, struck or disobeyed any superior officer could suffer death, including those soldiers in america. during war, chief officers of towns quartered and billeted royal army officers and soldiers in inns, livery stables, alehouses, and victualling houses for 4d. a day, but not in any private house without consent of the owner. from 1714 to 1739, the army regiments were split up and scattered among the ale-houses of small towns for maintenance; this was to disperse the army and also to keep a check on its numbers, which might be surreptitiously increased if they were in barracks. the towns protested and town magistrates imposed severe penalties for small offenses by soldiers. their drunkenness and violence were not tolerated as it was for ordinary people. their officers not being with them, the soldiers retaliated with troublesomeness. as of 1763 english troops could be quartered in unoccupied houses or barns and supplied with necessities such as bedding, firewood, candles, vinegar, salt, cooking utensils, and beer or cider. the royal hospital gave pensions to maimed and worn out soldiers treated there. sailors had more status than soldiers because they had regular work as seamen in times of peace and they did not remind the people of the idea of a standing army, which they had hated especially since cromwell. justices of the peace, mayors, and other officers could bind boys as apprentices to sea service if they were at least ten and their parents were chargeable to the parish or begged for alms. this indenture to the masters or owners of ships lasted until the boy reached 21. the parish paid 50s. for clothing and bedding for such sea service. no such apprentice could be impressed into royal sea service until 18 years of age. master and owners of ships that carry 30 50 tuns had to take one such apprentice and one more boy for the next 50 tuns, and one more boy for every 100 tuns over 100 tuns, or forfeit 10 pounds to the parish. boys voluntarily binding themselves to such sea service were exempt from impress for the next three years. this was to increase the number of able and experience mariners and seamen for the royal navy and for the trade and commerce of the nation. no masters or commanders of merchant ships may proceed on a voyage beyond the seas without first agreeing in writing on wages with the seamen, except for apprentices. such agreement must be signed by the seamen. offenders must forfeit 5 pounds per seaman, which will go the use of greenwich hospital. any seaman leaving the ship before being discharged in writing will forfeit one month's pay because too many have left the ship before it was unladen. there were some ships of 2000 tons. the steering wheel had been introduced because a sudden heavy sea could wrest a tiller from the hands of the helmsman. triangular head-sails with jib boom and stay-sails on stays between masts were in use so that ships could sail closer into the wind. the length of ships was still determined by the same length of trees that could be grown. sailing ships were still vulnerable to a lee shore. latitude was easy to determine using an octant and later a sextant with mirrors and a small telescope to measure the angle between a celestial body such as the sun or north star and the horizon. but longitude could not be determined with any degree of accuracy. one method relied on accurate predictions of the future position of the moon as observed from a fixed reference point, such as greenwich. by precisely observing the local time of the moon's occultation of a known star at a particular place, and looking up in a table the predicted time of the event at greenwich, one could approximate the time difference of the place from greenwich. there were so many shipwrecks on this account that the government offered a reward to anyone who found a way to measure longitude accurately. in 1763 carpenter and clockmaker john harrison made the chronometer to do this with an accuracy of 21/2 seconds per month, and received 5,000 pounds. he was promised 10,000 pounds to explain the principle of his timekeeper and build three more. the chronometer kept time with extreme accuracy and was mounted to remove the effect of the ship's motion. to find a ship's position, a navigator noted the time and measured the positions of certain stars. he compared these positions with tables that showed the stars' positions at greenwich mean time, and then calculated the ship's position. there was a toll on ships entering the port of london to pay for repairs to its walls. officer positions were no longer bought, but were subject to examination for a minimum of knowledge, especially in navigation. in 1729 the naval academy was established. boys entered at age 13 to 16 and spent two or three years there. only about 15% of the crew of navy ships were volunteers. many were gaolbirds, having chosen the navy over more gaol time for debt. press gangs seized men in the port towns and from ships coming into harbor. from 10% to 20% of the crew were foreigners, many of these pressed men. about 1756, the marine society was founded for training and placing poor boys in work in naval and merchant ships. this not only supplied men and boys for the navy, but saved boys from a life of vagrancy and crime. these boys usually became reliable and obedient sailors. the life of a sailor was a hard one, requiring much strength. sailors did not know how to swim, so falling overboard usually meant death. flogging was the usual punishment in the navy, even for small offenses. the amount of flogging due for each offense rose over time. if flogging were fatal, there would be an inquiry and occasionally punishment. a sailor's meals were usually hard bread invested with weevils and maggots, dried or salted meat or fish, and small quantities of oatmeal, butter, and cheese. many sailors had scurvy or other deficiency diseases. experiments with lime and lemon juice as remedies for scurvy were made around 1764, but were not used in the navy until about 1800. many more sailors died from these diseases than from battle. rum and water was a daily ration introduced in 1745. the ordinary sailor was paid about one pound a month, a rate established in 1650s and now out of date. this was not in cash, but in a ticket which entitled him to payment in full if he presented it at the pay office in london, but was subject to swinging deductions if he tried to cash it in another port. prize money from conquered ships was substantial. to encourage seamen to enter the navy, parliament provided that it be divided among flag officers, commanders, other officers, seamen, marines, and soldiers on board every ship of war, including private ships commissioned by the admiral, as directed by the king, or as agreed with the owner of a private ship. it included an enemy's ships, and goods and arms on the ships or in fortresses on the land. there was also bounty money for enemy ships taken or destroyed. for retaking or salvaging english goods taken by the enemy, 1/8th their value was to be paid. privateers taking merchant ships by collusion were to forfeit their ships, with 1/3rd going to the person who makes the discovery and prosecutes. later, any able seaman volunteering for the navy is to receive 5 pounds bounty. any seaman volunteering for the navy shall receive a bounty of 3 pounds. if a navy seaman is killed or drowned, his widow is to receive a year's pay as bounty. no seaman in a merchant ship is to receive more than 35s. per month because of the present war. still later, anyone who has run goods or avoided customs was indemnified if he enlisted in the navy as a common sailor for three years. those under 18 or over 55 were made exempt from impressment into the king's service. the time of service was limited to five years if the serviceman so demanded. worn out and decrepit seamen no longer being treated at the royal hospital for seamen at greenwich are to receive a pension as determined by the hospital. in war, the navy used blockading tactics and attack by fireships grew obsolete. in peace, when not used in convoys to remote lands, many ships of war were used as cruisers to guard the coast and trade and to accompany merchant ships going out and returning home. about 1755, marine forces of the navy were raised and quartered on shore. no war ship may carry goods except gold, silver, and jewels and except the goods of a ship in danger of shipwreck or already shipwrecked. the king was authorized to prohibit the export of gunpowder, saltpeter, ammunition, and arms. when a ship had been forced on shore or stranded on the coast, it had been the practice for people to plunder it and to demand high payment for salvaging its goods. so a statute required that salvage only be done by sheriff, mayors, and other officials. a person who defacing the marks on goods or hindering the saving of the ship had to pay double satisfaction to the person aggrieved and spend 12 months at hard labor in a house of correction. if a person unduly carried off goods, he forfeited treble damages. if he made a hole in the ship or stole the pump from the ship, he was guilty of felony without benefit of clergy. the owner of the island of skerries was allowed to erect a lighthouse and charge passing ships other than navy ships 1d. per tun. only pilots examined and admitted into the society of pilots and, if no such pilot is readily available, a ship's own owner, master, or mate may pilot ships up the thames river, or forfeit 10 pounds for the first offense, 20 pounds for the second, and 40 pounds thereafter. any pilot losing a ship may no longer be a pilot. there must be at least 120 qualified pilots. the prices of piloting are 3 pounds 10s. for ships drawing 7 feet of water, and 10s. more for each additional foot drawn up to 8 pounds 10s. for ships drawing 17 feet of water. to preserve navigation, ships may not throw any ballast, rubbish, gravel, earth, stone, or filth into rivers or ports where the tide or water flows or runs or forfeit 50s.5 pounds. ships on the thames river may take as ballast to stabilize a ship without cargo: dung, compost, earth, or soil from laystalls in london. many persons insuring ships for large premiums became bankrupt, thus ruining or impoverishing many merchants and traders. so the king was authorized to grant charters to two distinct corporations for the insurance of ships, goods, and merchandise or going to sea or for lending money upon bottomry (money to be repaid upon return of ship). each corporation had to pay 300,000 pounds to the exchequer and to have sufficient ready money to pay for losses insured by them. they were to raise capital stock and could make calls of money from their members in proportion to their stocks for any further money required. any owner, master, or mariner who casts away, burns, or otherwise destroys to the prejudice of underwriters of policies of insurance or of any merchants whose goods have been loaded on the ship shall suffer death. the owners of ships are not liable for losses by reason of theft without their knowledge by the master or mariners of goods beyond the value of the ship. this is to prevent the discouragement of owning ships. the insurance of merchant ships must give salvage rights to the insurer. a lender on bottomry shall have benefit of salvage. no insurance may be for a greater amount than the value of one's interest in the ship or in the goods on board. no waterman carrying passengers or goods for hire e.g. by wherryboat, tiltboat, or rowbarge, on the thames river may take an apprentice unless he is a housekeeper or has some known place of abode where he may keep such apprentice or forfeit ten pounds, and if he can't pay, do hard labor at the house of correction for 1430 days. also he may not keep the apprentice bound to him. no apprentice may be entrusted with a vessel until he is 16 if a waterman's son and 17 if is he the son of a landman, and he has had at least two years' experience. none but freemen (i.e. one having served an apprenticeship of seven years) may row or work any vessel for hire or be subject to the same punishment. this is to avoid the mischiefs which happen by entrusting apprentices too weak, unable, and unskillful in the work, with the care of goods and lives of passengers. later amendment required that apprentices be age 14 to 20 and that there be no more than 40 passengers, with the penalty of transportation if there were over 40 and one drowned. no boat on the thames river may be used for selling liquors, tobacco, fruit, or gingerbread to seamen and laborers because such has led to theft of ropes, cables, goods, and stores from the ships. excepted are boats registered at the guilds of trinity and of st. clement, but they must show their owner's name and can only operate in daylight hours. the penalty is forfeiture of the boat. all ships coming from places infected with the plague shall be quarantined and any person leaving a quarantined ship shall return and later forfeit 20 pounds, of which 1/3 may go to the informer, the rest to the poor. this was later raised to 200 pounds and six months in prison, and if the person escaped, he was to suffer death. also later, a master of a ship coming from infected places or having infected people on board was guilty of felony and to forfeit 200 pounds. if he did not take his vessel to the quarantine area on notice, he was to forfeit a further 200 pounds (later 500 pounds) and the ship, which could then be burned. the king was authorized to prohibit commerce for one year with any country infected by the plague and to forbid any persons of the realm from going to an infected place. by 1714, there was a clear distinction between a king's private income and the crown's public revenue. from 1714, the king's treasurer as a matter of routine submitted annual budgets to parliament. he was usually also the leader of the house of commons and the chancellor of the exchequer. proclamations by the crown were more restricted to colonial and foreign affairs, to executive orders, and to instructions to officials. the high offices included the chancellor, keeper, president of the council, privy seal, treasurer, and two secretaries of state, who were in charge of all foreign and domestic matters other than taxation, one for the north and one for the south. (wolsey had been the last chancellor to rule england; thereafter the chancellor had become more of a judge and less of a statesman.) other offices were: paymaster general, secretary of war, and treasurer of the navy. starting with the monarch, government positions were given by patronage to friends and relatives, or if none, to the highest bidder. these offices were usually milked for fees and employed deputies, clerks, and scribes who worked for long hours at very modest wages. most people believed that the offices of power and influence in the realm belonged to the nobility and gentry as indubitably as the throne belonged to the king. assaulting, wounding, striking, or trying to kill a member of the privy council engaged in his duties was punishable by death without benefit of clergy. civil and military commissions, patents, grants of any office or employment, including justice of assize, justice of the peace, court writs, court proceedings continued in force for six months after a king's death, unless superceded in the meantime. the king's ministers were those members of his privy council who carried out the work of government. by distributing patronage, the ministers acquired the influence to become leading members of the house of commons or the house of lords. they made policy, secured the king's consent, and then put through the necessary legislation. the king was to act only through his ministers and all public business was to be formally done in privy council with all its decisions signed by its members. the king gradually lost power. the last royal veto of a parliamentary bill was in 1708. by 1714, the privy council ceased making decisions of policy. instead a cabinet not identified with any particular party was chosen by the queen, who presided over their meetings, which were held every sunday. it dealt with parliament. in 1720, the number of peers in the house of lords was fixed, so that the crown could create no more. about 1720, robert walpole, son of a country squire, who came to be first minister of the crown and the leader of the whigs, organized the cabinet so that it was of one view. he led it for twenty years and thus became the first prime minister. he was brilliant at finance and lessened taxation. he restored trust in the government after the south sea bubble scandal. he was successful in preserving the peace with other nations and providing stability in england that led to prosperity. the whigs opposed a standing army and over-reaching influence of the crown. they espoused the liberty of individual subjects. their slogan was "liberty and property". they generally favored foreign wars. members of the parliament felt responsible for the good of the whole country instead of accounting to their electors, but selfinterest also played a part. leading commercial magnates of the realm sought to be members of parliament or governors of the bank of england to be able to take up government loans at advantageous rates, snap up contracts to supply government departments at exorbitant prices, and play an important part in deciding what duties should be charged on what goods. about 5% of the population could vote. voting was open, rather than by secret ballot. seats in parliament could normally be bought either by coming to an arrangement with some landowner who had the right to nominate to a closed seat or by buying enough votes in constituencies where the electorate was larger and the contest more open. factory owners and leading landowners sat together on committees drawing up plans for public works such as canal building, obtained the necessary permits from public authorities and organized the whole enterprise. in 1714, parliament was allowed to last for seven years unless sooner dissolved by the king because of the expense and tumult of elections, which frequently occasioned riots, and sometimes battles in which men were killed and prisoners taken on both sides. politics had become a career. members of parliament could not be arrested while parliament was in session. as of 1710, electees to the commons had to have 600 pounds annual income for knights or 300 pounds annually for burgesses. this did not include the eldest son or heir apparent of any peer or lord of parliament or any person with the above qualifications. the universities were exempted. as of 1729, persons electing a member of the commons must swear or affirm that he has not received any money, office, employment, or reward or promise of such for his vote. if he swears falsely, it is perjury and he must forfeit 500 pounds and may never vote again. later, voters for member of parliament had to have residence for a year. still later, voters were required to have been freemen of the city or town for one year or forfeit 100 pounds, except if entitled to freedom by birth, marriage, or servitude according to the custom of such city or town. voters still were required to have a freehold of land of 40s. a year income, but holders of estates by copy of court roll were specifically precluded or forfeit 50 pounds. in 1724, since unauthorized persons have intruded into assemblies of citizens of london and presumed to vote therein, the presiding officer shall appoint clerks to take the poll and oath required for elections for parliament, mayor, sheriffs, chamberlains, bridgemasters, and auditors of chamberlains. the oath is that one is a freeman of london, a liveryman of a certain named company, has been so for 12 months, and names his place of abode. the oath for alderman or common council elections is that the voter is a freeman of london and a householder in a named ward paying scot of at least a total of 30s. and bearing lot. a list of the voters and of persons disallowed is to be given to candidates by the presiding officer. soldiers may not be quartered within 20 miles of a place of election so that the election is kept free. voters in public corporations must have held their stock for six months before voting them to discourage splitting stock and making temporary conveyances thereof to give certain people more of a vote, e.g. in declaring dividends and choosing directors. ambassadors were made immune from arrest, prosecution and imprisonment to preserve their rights and privileges and protection by the queen and the law of nations. the supporters of the bill of rights society was founded and paid agents to give speeches throughout the country and used the press for its goals. james burgh demanded universal suffrage in his 1773 book: "political disquisitions". in 1707 there was union with scotland, in which their parliaments were combined into one. the country was known as great britain. the last scottish rebellion resulted in attainder of its leaders for levying war against the king. in 1746, they were given the chance to surrender by a certain date, and receive a pardon on condition of transportation. in 1747, anyone impeached by the commons of high treason whereby there may be corruption of the blood or for misprison of such treason may make his defense by up to two counsel learned in the law, who shall be assigned for that purpose on the application of the person impeached. in 1748, counsel may interrogate witnesses in such cases where testimony of witnesses are not reduced to writing. there was a steady flow of emigrants to the american colonies, including transported convicts and indentured servants. delaware became a colony in 1703. in 1729, the king bought carolina from its seven proprietors for 2,500 pounds apiece. person having estates, rights, titles, or interest there, except officers, were allowed by parliament to sue the king with the court establishing the value to be paid, but no more than at a rate of 2,500 pounds per 1/8 of property. georgia was chartered in 1733 on request of james oglethorpe, who became its first governor, as a refuge for debtors and the poor and needy. it established the episcopal church by law. in 1730 carolina and 1735 georgia were allowed to sell rice directly to certain lands instead of to england only. later, sugar was allowed to be carried directly from america to european ports in english ships without first touching some english port. foreigners who had lived in the american colonies for seven years, and later foreigners who served two years in the royal army in america as a soldier or as an engineer, were allowed to become citizens of great britain on taking oaths of loyalty and protestantism. this included quakers and jews. the jews could omit the phrase "upon the true faith of a christian." in 1756, indentured servants in america were allowed to volunteer as soldiers in the british army serving in america. if his proprietor objected, the servant was to be restored to him or reasonable compensation given in proportion to the original purchase price of his service and the time of his service remaining. there was much competition among countries for colonies. quebec and then montreal in 1760 in canada were captured from the french. about 1768 james cook discovered new zealand and australia; his maps greatly helped future voyages. the english east india company took over india as its mogul empire broke up. manufacturing in the american colonies that would compete with british industry was suppressed by great britain. there were increasing duties on goods imported into the colonies and restrictions on exports. in 1763, parliament imposed duties on foreign imports going to america via britain: to wit, sugar, indigo, coffee, certain wines, wrought silks, calicoes, and cambrick linen. foreign vessels at anchor or hovering on colonial coasts and not departing within 48 hours were made liable to be forfeited with their goods. uncustomed goods into or prohibited goods into or out of the colonies seized by customs officials on the ship or on land and any boats and cattle used to transport them occasioned a forfeiture of treble value, of which 1/3 went to the king, 1/3 went to the colonial governor, and 1/3 went to the suer. any officer making a collusive seizure or other fraud was to forfeit 500 pounds and his office. in 1765, there was imposed a duty on papers in the colonies to defray expenses of their defense. it was thought to be a fair tax because it fell on colonies in proportion to their wealth. the items taxed were to carry a stamp showing that the duty on them had been paid. the duty on every skin, piece of vellum or parchment, and sheet of paper used in any law court was 3d.2 pounds. there were also duties on counselor or solicitor appointments of 10 pounds per sheet. duties extended to licenses for retailing spirituous liquors and wines, bonds for payment of money, warrants for surveying or setting out of any lands, grants and deeds of land, appointments to certain civil public offices, indentures, leases, conveyances, bills of sale, grants and certificates under public seal, insurance policies, mortgages, passports, pamphlets, newspapers (about 1s. per sheet), advertisements in papers (2s. each), cards, and dice. the colonists saw this as a departure from past duties because it was an "internal tax". all of the original thirteen american colonies had adopted magna carta principles directly or indirectly into their law. the stamp duties seemed to the colonists to violate these principles of liberty. patrick henry asserted that only virginia could impose taxes in virginia. schoolmaster and lawyer john adams in massachusetts asserted that no freeman should be subject to any tax to which he had not assented. in theory, colonists had the same rights as englishmen per their charters, but in fact, they were not represented in parliament and englishmen in parliament made the laws which affected the colonists. they could not be members of the house of lords because they did not have property in england. there were demonstrations and intimidation of stamp agents by the sons of liberty. merchants agreed to buy no more goods from england. the stamp duty was repealed the same year it had been enacted because it had been "attended with many inconveniences and may be productive of consequences greatly detrimental to the commercial interests of these kingdoms". to counter the wide-scale running of goods to avoid the customs tax, the customs office was reorganized in 1766 to have commissions resident in the colonies and courts of admiralty established there to expedite cases of smuggling. this angered the colonists, especially boston. boston smuggling had become a common and respectable business. it was the port of entry for molasses from the west indies from which new england rum was made and exported. the entire molasses trade that was essential to the new england economy had been built upon massive customs evasions; royal customs officials had participated in this by taking token customs for the sake of appearance on london and thereby had become rich. in 1766 parliament imposed a duty of 3d. per pound weight on tea and duties on reams of paper, glass, and lead into the colonies. these import duties were presented as external rather than internal taxes to counter the rationale the colonies gave against the stamp tax. but these items were of common use and their duties raised the cost of living. the king's customs officials were authorized to enter any house, warehouse, shop, or cellar to search for and seize prohibited or uncustomed goods by a general writ of assistance. these writs of assistance had been authorized before and had angered bostonians because they had been issued without probable cause. in paxton's case of 1761, the massachusetts superior court had declared legal the issuance of general writs of assistance to customs officers to search any house for specific goods for which customs had not been paid. the authority for this was based on the parliamentary statutes of 1660 and 1662 authorizing warrants to be given to any person to enter, with the assistance of a public official any house where contraband goods were suspected to be concealed, to search for and seize those goods, using force if necessary. they were called "writs of assistance" because the bearer could command the assistance of a local public official in making entry and seizure. a "general" writ of assistance differed from a "special" writ of assistance in that the latter was issued on a one-time basis. the general writ of assistance in boston was good for six months after the death of the issuing sovereign. authority relied on for such writs was a 1696 statute giving customs officers in the colonies the same powers as those in england, a 1699 act by the massachusetts provincial legislature giving the superior court of massachusetts the same such power as that of the exchequer, and the massachusetts' governor's direction about 1757 to the massachusetts superior court of judicature to perform the function of issuing such warrants. the massachusetts court issued them in the nature of the writs of assistance issued from the exchequer court in england, but had issued them routinely instead of requiring the showing of probable cause based on sworn information that the exchequer court required. few judges in the other american colonies granted the writ. seditious libel trials in england and the colonies were followed closely and their defendants broadly supported. john wilkes, a member of the house of commons, published a criticism of a new minister in 1763. he called king george's speech on a treaty "the most abandoned instance of ministerial effrontery ever attempted to be imposed on mankind". after being found guilty of seditious libel, he again ran for the house of commons, and was repeatedly elected and expelled. he was subsequently elected alderman, sheriff, and mayor of london. in 1770, alexander macdougall was voted guilty of seditious libel by the new york colonial assembly for authoring a handbill which denounced a collusive agreement by which the assembly voted to furnish supplies for the british troops in new york in exchange for the royal governor's signature to a paper-money bill. when he was arrested, the sons of liberty rallied to his support, demanding freedom of the press. benjamin franklin's brother had been imprisoned for a month by the massachusetts assembly for printing in his newspaper criticisms of the assembly. he was forbidden to print the paper. benjamin supported him by publishing extracts from other papers, such as "without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty without freedom of speech whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech; a thing terrible to public traitors." by statute of 1766, the new york house of representatives was prohibited from meeting or voting until they provisioned the king's troops as required by law. in 1769, harvard college seated its students in class in alphabetical order instead of by social rank according to birth. by 1769, the colonies' boycott of british goods in protest of the new duties cause these imports to decline so much that british merchants protested. so the duties were dropped, except for that on tea, which was retained as a matter of principle to assert the power of the crown to tax the colonies. then in 1773 the east india company was allowed to sell tea directly to the colonies to help it avoid bankruptcy. the effect of this was to lower the cost of tea in the colonies because the english middleman, and the american middleman, but also to give the east india company a monopoly. the colonies felt threatened by this power of britain to give monopolies to traders. when the tea ships arrived in boston in late 1773, bostonians held a town meeting and decided not to let the tea be landed. they threw this cargo of tea, worth about 18,000 pounds, overboard. this boston tea party was a direct challenge to british authority. in response, parliament closed the port of boston until compensation was made to the east india company. by statute of 1774, no one may enter or exit the port of boston or forfeit goods, arms, stores, and boats carrying goods to ships. every involved wharf keeper shall forfeit treble the value of the goods and any boats, horses, cattle, or carriages used. ships hovering nearby must depart within six hours of an order by a navy ship or customs officer or be forfeited with all goods aboard, except for ships carrying fuel or victuals brought coastwise for necessary use and sustenance of inhabitants after search by customs officers, and with a customs official and armed men for his defense on board. this statute is passed because of dangerous commotions and insurrections in boston to the subversion of the king's government and destruction of the public peace in which valuable cargoes of tea were destroyed. later, the governor was given the right to send colonists or magistrates charged with murder or other capital offenses, such as might be alleged to occur in the suppression of riots or enforcement of the revenue laws, to england or another colony for trial when he opined that an indifferent trial could not be had in massachusetts bay. a later statute that year altered the charter of massachusetts bay province so that the choice of its council was transferred from the people to the crown to serve at his pleasure, and the appointment and removal of judges and appointment of sheriffs was transferred to the governor to be made without the consent of the council. this was due to the open resistance to the execution of the laws in boston. further, no meeting of freeholders or inhabitants of townships may be held without consent of the governor after expressing the special business of such meeting because there had been too many meetings passing dangerous and unwarranted resolutions. also, jurors were to be selected by sheriffs rather than elected by freeholders and inhabitants. the commander of the british troops in north america was made governor. king george thought that the colonists must be reduced to absolute obedience, even if ruthless force was necessary. the people of massachusetts were incensed. they were all familiar with the rights of magna carta since mandatory education taught them all to read and write. (every township of fifty households had to appoint one to teach all children to read and write. every one hundred families had to set up a grammar school.) the example in massachusetts showed other colonies what england was prepared to do to them. also disliked was the policy of restricting settlement west of the allegheny mountains; the take over of indian affairs by royal appointees; the maintenance of a standing army of about 6,000 men which was to be quartered, supplied, and transported by the colonists; and expanded restrictions on colonial paper currencies. the virginia house of burgesses set aside the effective date of the port bill as a day of prayer and fasting, and for this was dissolved by its governor. whereupon its members called a convention of delegates from the colonies to consider the "united interests of america". this congress met and decided to actively resist british policy. as opposition to british rule spread in the colonies, a statute was passed that because of the combinations and disorders in massachusetts, new hampshire, and connecticut, and rhode island to the destruction of commerce and violation of laws, these inhabitants should not enjoy the same privileges and benefits of trade as obedient subjects and therefore no goods or wares may be brought from there to any other colony, and exports to and imports from great britain were restricted, on pain of forfeiting the goods and the ship on which they were laden. there was also restriction of their vessels fishing off newfoundland. these conditions were to be in force until the governors were convinced that peace and obedience to laws was restored. later in 1775, these trade restrictions were extended to new jersey, pennsylvania, maryland, virginia, and south carolina. in 1776, because all the thirteen colonies had assembled an armed force and attacked british forces, these trade restrictions were extended to delaware, new york, georgia, and north carolina and expanded to prohibit all trade during the present rebellion to prevent assistance to them. war had started; the new rifle was used instead of the musket. by statute of 1775, anyone harboring of army or marine deserters in the colonies must forfeit 5 pounds, and persuading a soldier or marine to desert drew a forfeiture of 40 pounds or else up to six months in prison without bail and one hour in the pillory on market day. bounties were made available to vessels from and fitted out in great britain for newfoundland fishing. any shipmaster carrying as passengers any fisherman, sailor, or artificer to america shall forfeit 200 pounds because such men have been seduced from british fishing vessels in newfoundland, to the detriment of the fishing industry. the many years of significant achievements of the colonists, such as taming the wilderness and building cities, had given them confidence in their ability to govern themselves. the average colonial family had a better standard of living than the average family in england. many of its top citizenry had reached their positions by hard work applied to opportunities for upward mobility. with the confidence of success, the american colonies in 1776 declared their independence from britain, relying on the principles stated by john locke and jean jacques rousseau that man was naturally free and all men equal, and that society was only created with their consent. issac's newtons's unified laws of the universe had contributed to this idea of a natural law of rights of men. thomas jefferson wrote a declaration of independence which listed the colonies' grievances against the crown which reiterated many of the provisions of the petition of right and bill of rights, specifically dispensing with and suspending laws, maintaining a standing army and quartering troops without legislative consent, imposing arbitrary taxation, encouraging illegal prosecutions in strange courts, and corrupting the jury process. it was adopted on july 4, 1776. the law trade and the economy boomed in time of war, buttressed by the increased production in the coal, iron, steel, shipbuilding, and cloth industries. but peace brought depression and much misery, including the imprisonment of many debtors. when many were imprisoned, statutes allowed release on certain conditions. after assets were paid to creditors in proportion to the amounts owed to them, debtors may be discharged from prison if they owe no party more than 100 pounds (later no restriction and still later, 50 pounds, and even later, 500 pounds, and in 1772, 1000 pounds, and in 1774, 2000 pounds) and take an oath that they have less than 10 (20 in 1772) pounds worth of property (including 40s. in money in 1774), because there are so many debtors in prison who were impoverished by war losses and other misfortunes in trades and professions and are totally disabled from paying their creditors and they and their families either starve or are a burden to their parishes and become an occasion of pestilence and other contagious diseases. excepted are those objected to by a creditor who pays for the maintenance of the debtor in prison. prisoners discharged are also discharged from chamber rent and gaolers' fees, but not from their debts to creditors. except that no male prisoner may be discharged during war unless he enlists in the royal army or navy until the end of the war. in 1774, the discoverer of any asset not listed by a debtor was to receive 20 pounds per hundred, and anyone concealing an asset of a debtor was to forfeit 100 pounds and double the value of the asset. a person declared bankrupt shall subsequently be examined from time to time as to their goods, money, or other effects or estate to prevent the frauds frequently committed by bankrupts. a default or willful omission shall be deemed felony without benefit of clergy. a bankrupt or other person concealing goods to the value of at least 20 pounds or his books with intent to defraud is a felony without benefit of clergy. a debtor refusing to come to court for examination or hiding assets of more than 20 pounds is guilty of felony and his goods and estate shall be divided among his creditors. later, a bankrupt coming to an examination was allowed to keep 5 (or 7 1/2 or 10) pounds per 100, up to a maximum of 200 (or 250 or 300, respectively) pounds if he paid his creditors 10s. (or 12s.6d. or 15s. respectively) per pound. his future estate was still liable to creditors (excepting tools of trade, necessary household goods, bedding, furniture, and wearing apparel of the family up to 10 pounds) if it could pay every creditor 15s. per pound. if he didn't pay this, he could be imprisoned. bankrupts excepted from the benefits of this act are those who lost 5 pounds in any one day or 100 pounds in the preceding year from gambling or wagers. no goods or chattels on lands or tenements which are leased for life or lives or term of years or at will or otherwise "shall be liable to be taken by virtue of any execution on any pretence whatsoever unless the party at whose suit the said execution is sued out shall before the removal of such goods from off the said premises by virtue of such execution or extent pay to the landlord" all money due as rent. if the lessee fraudulently or clandestinely conveys or carries off his goods or chattels with intent to deprive the landlord or lessor from distraining the same for arrears of such rent, the lessor or landlord may, within five days, seize such goods and chattels as a distress for the arrears of rent and may sell them as if actually distrained on the premises. every person under 21 and every woman-covert who is entitled by descent or will to be admitted tenants of any copyhold lands or hereditaments may be ordered to appear by a guardian or attorney to be compelled to be so admitted and to pay such fines as are owing by the lands. if one is so admitted, but does not pay, the lord may enter the lands and receive its rents (but not sell timber) until the fine and costs are satisfied, after which the land is to be given back and may not be forfeited to the lord. tenants holding over any lands after their term expired and after demand for possession was made shall pay double the yearly value of such to the landlord. the landlord may reenter and eject a tenant if rent is in arrears for 1/2 year. landlords may distrain within 30 days and sell goods and chattels fraudulently or clandestinely carried off the premises by renters in arrears of rent. this applies to goods sold to others privy to the fraud. they may use force if necessary to break open houses upon giving a justice of the peace reasonable grounds to suspect and to break open other buildings in the presence of a constable. the renter is to forfeit double the value of such. the landlord may distrain the renter's cattle on any common or any growing grain, roots, or fruit. attornments of renters made to strangers who claim title and turn the landlord out of possession are void. chief leases may be renewed without surrendering all the under leases. this is to prevent subtenants from delaying the renewal of the principal lease by refusing to surrender their leases, notwithstanding that they have covenanted to do so. but the rents and duties of the new subleases may not exceed those of their former leases. any person claiming a remainder, reversion, or expectancy in any estate after the death of any person who has cause to believe that that person is dead and the death is being concealed by the person's guardian, trustee, husband, or other person may yearly request an order in chancery for the production of such tenant for life. upon refusal, the tenant for life shall be deemed dead. as of 1752, all devices, legacies, and bequests made by will in great britain or the colonies is void if not in writing and witnessed by three witnesses. no witness may receive under the will. an accessory before or after the fact of felony may be prosecuted and tried not only if the principal accused felon has been convicted, but even if he stood mute or peremptorily challenged over 20 persons to serve on the jury. the accessories shall be punished the same as if the principal had been attainted. buyers and receivers of stolen goods may be prosecuted and punished if they knew the goods to be stolen, even if the principal felon has not been convicted. the punishment will be as for misdemeanor by fine and imprisonment. this is to deter the counselors and contrivers of theft and other felonies and the receivers of stolen goods from taking advantage of the former rule that an accessory could not be convicted or punished unless the principal had first been attainted. and if any captain or mariner or other officer belonging to any ship willfully casts away, burns, or otherwise destroys that ship to the prejudice of its owners or merchants loading goods onto the ship, he shall suffer death as a felon. journeymen shoemakers or employees of such who sell or pawn boots, shoes, slippers, cut leather or other materials for making such goods which are not his proper goods, or exchange for worse good leather which has been entrusted to them, shall for the first offense, recompense the injured person, or if his goods are insufficient for distress, may be whipped. for the second offense, he shall be sent to hard labor in a house of correction for 14-30 days. a person who buys or receives or takes in pawn such goods shall suffer the same penalties. justices of the peace may issue warrants to search houses and buildings in the daytime if there is "just cause to suspect" such goods therein based upon information given to him under oath. anyone employed in the working up of woolen, linen, fustian, cotton, or iron manufacture who embezzles or purloins any materials for their work shall forfeit double the value of the damages done and anyone convicted thereof may be put into the house of correction until he pays, or if he can't pay, to be publicly whipped and kept at hard labor for no more than 14 days. persons convicted of buying or receiving such materials shall suffer like penalties and forfeitures as one convicted of embezzling or purloining such materials. laborers employed in such manufacture must be paid in coin and not in cloth, victuals, or commodities in lieu thereof. leatherworkers were added with a penalty of up to double the value. later this statute was amended to include a penalty for the second offense of forfeiture of four times the value, or else hard labor at a house of correction for 1-3 months and whipping once or more in the market town. like penalties were given for buyers of such material knowing it to be false. one who neglected finishing and delivering such goods because he was leaving this employment were to be sent to the house of correction for up to one month. the penalty for possessing or offering to sell any hare, pheasant, partridge, moor or heath game or grouse by any carrier, innkeeper, victualler, or alehouse keeper is 5 pounds, 1/2 to the informer, and 1/2 to the poor of the parish. if unable to pay, the offender shall be placed in the house of correction for three months without bail. unauthorized persons keeping or using greyhounds, setting dogs, or any engine to kill game shall suffer the same penalties. in 1770, anyone killing hare at night or using any gun, dog, or other engine to take or kill or destroy any hare, pleasant, partridge, moor game, heath game, or grouse in the night shall go to gaol or the house of correction for 3-6 months without bail and whipped for the first offense and for 6-12 months without bail and whipped for any further offense. if such occurs on a sunday, the offender must forfeit 20-30 pounds or go to gaol for 3-6 months. in 1773, no one may kill or take or possess any heath fowl or any grouse except at a limited period during the year. each manor may have only one gamekeeper allowed to kill game such as hare, pheasant, partridge and only for his household's use. this gamekeeper must be either qualified by law or a servant of the land's lord. other persons possessing game or keeping a greyhound or setting dogs or guns or other devices to kill game must forfeit them and five pounds. anyone killing or attempting to kill by shooting any house dove or pigeon shall forfeit 20s. or do hard labor for one to three months. excepted are owners of dove cotes or pigeon houses erected for the preservation and breeding of such. a gamekeeper or other officer of a forest or park who kills a deer without consent of the owner must forfeit 50 pounds per deer, to be taken by distress if necessary, and if he can't pay, he is to be imprisoned for three years without bail and set in the pillory for two hours on some market day. a later penalty was transportation for seven years. anyone pulling down walls of any forest or park where deer are kept without the consent of the owner must forfeit 30 pounds and if he can't pay, he is to be imprisoned for one year without bail and spend one hour in the pillory on market day. later, the killing of deer in open fields or forests was given the same penalties instead of only the monetary penalty prescribed by former law (former chapter). the penalty for a second offense was given as transportation for seven years. anyone beating or wounding a gamekeeper with an intent to kill any deer in an open or closed place was to be transported for seven years. anyone who apprehends and prosecutes a person guilty of burglary or felonious breaking and entering any house in the day time shall be rewarded 40 pounds in addition to being discharged from parish and ward offices. anyone who feloniously steals or aids in the stealing of goods, wares, or merchandise over 5s. from a shop, warehouse, coach house, or stable (by night or by day, whether the owner is present or not, whether there is a break in or not) may not have benefit of clergy. anyone stealing goods of 40s. worth from a ship on any river or in any port or creek or from any wharf may not have benefit of clergy. anyone receiving or buying goods they know to be stolen or who harbors or conceals any burglars, felons, or thieves knowing them to be such shall be taken as accessory to the felony and shall suffer death as punishment if the principal felon is convicted. a person taking money or reward for helping any other person to stolen goods or chattels is guilty of felony unless he brings the thief to trial. as of 1717, any person convicted of grand or petit larceny or any felonious stealing or taking of money, goods, or chattels, either from the person or from the house of any person who is entitled to benefit of clergy and who is liable only to whipping or burning in the hand may instead be transported to the american colonies to the use of any person who will pay for his transportation for seven years. any person convicted of an offense punishable by death and without benefit of clergy and buyers and receivers of stolen goods may be given mercy by the king on condition of transportation to any part of america to the use of any person who will pay for his transportation, for fourteen years or other term agreed upon. returning before the expiration of the term is punishable by death. anyone assaulting another with an offensive weapon with a design to rob may be transported for seven years. any person armed with swords, fire-arms, or other offensive weapons and having their faces blackened or otherwise being disguised, who appears in any forest, park, or grounds enclosed by a wall or fence wherein deer are kept (including the king's deer) or in any warren or place where hares or conies are kept or in any high road, open heath, common, or down, or who unlawfully hunts, wounds, kills, or steals any deer or steals any hare or rabbit or steals any fish out of any river or pond or who unlawfully and maliciously breaks down the head or mound of any fish pone, causing the loss of fish, or who unlawfully and maliciously kills, maims, or wounds any cattle, or who cuts down any trees planted in any avenue or growing in any garden or orchard for ornament, shelter, or profit, or who sets fire to any house, barn or out house [outer building], hovel, or stack of grain, straw, hay or wood, or who willfully and maliciously shoots any person in any dwelling house or other place, or who sends any letter with no signature or a fictitious signature, demanding money, venison, or other valuable thing, or who forcibly rescues any person lawfully in custody for any of these offenses, or who procures others by gift or promise of money or other reward to join with him in any such unlawful act is guilty of felony and shall suffer death without benefit of clergy. persons abetting them are also guilty of felony and shall suffer death without benefit of clergy. attainder shall not work corruption of the blood, loss of dower, or forfeiture of lands, goods, or chattel. the persons sustaining damages can recover 200 pounds or less from the hundred, with inhabitants paying proportionately, unless one of the offenders is convicted within six months. if other hundreds have not diligently followed the hue and cry, they shall pay half such damages. in 1735, it was required that there be notice to the constable or other officer or tythingman and public notice in the london gazette describing the robbery, offenders, and goods taken before the hundred had to pay damages. also, it did not have to pay damages if one offender was apprehended with 40 days of publication in the london gazette, but did have to pay the apprehender 10 pounds. in 1754 was also included letters threatening killing people or burning houses, barns or stacks of grain, hay, or straw, without any demand. also, persons who rescued such offenders from gaol were given the same penalty. later, persons obtaining money or goods by false pretenses with an intent to defraud or cheat or sending a letter without a true signature threatening to accuse any person of a crime with an intent to extort money or goods, are punishable by fine and prison, pillory, or whipping or transportation for seven years. later, no person may recover more than 200 pounds after a hue and cry unless there are at least two witnesses to the robbery. no one may advertise a reward for return of things stolen or lost with no questions asked, because this has resulted in thefts and robberies. justices of the peace may authorize constables and other peace officers to enter any house to search for stolen venison. any person apprehending an offender or causing such to be convicted who is killed or wounded so as to lose an eye or the use of a limb shall receive 50 pounds. any person buying suspect venison or skin of deer shall produce the seller or be punished the same as a deer killer: 30 pounds or, if he couldn't pay, one year in prison without bail and one hour in the pillory on market day. an offender who discloses his accomplices and their occupations and places of abode and discovers where they may be found and they are subsequently convicted, shall be pardoned. anyone stealing sheep or cattle or parts thereof is a felon and shall suffer death without benefit of clergy. persons who steal or aid in stealing any lead, iron bar, iron gate, palisadoe, or iron rail fixed to any house or its outhouses, garden, orchard, or courtyard is guilty of felony and may be transported for seven years. in 1756 also included was copper, brass, bell-metal, and solder; buyers and receivers; and mills, warehouses, workshops, wharves, ships, barges, and other vessels. search warrants were authorized in case of suspicion. officers and solicited buyers and receivers were required to take persons who at night were reasonably suspected of having or carrying such items, to an accounting before a justice of the peace. also a notice was put in the newspaper for any owners to claim such. if the person did not give a satisfactory account of the items, he was guilty of a misdemeanor punishable by forfeiture of 2 pounds or prison up to one month for the first offense, 4 pounds or prison for two months for the second offense, and 6 pounds or prison for any subsequent offense (without bail). an officer or solicited buyer or receiver who did not take a suspect to a justice of the peace was punishable by the same penalties except the amounts of forfeiture were 1 pound, 2 pounds, and 4 pounds respectively. a felon who brought two buyers or receivers to justice was to be pardoned. a description of any goods and the appearance of a rogue or vagabond or idle and disorderly person shall be advertised in a public paper for identification by the owner as stolen. pawning goods without consent of the owner is punishable by forfeiture of 20s. or hard labor for fourteen days with whipping there. maliciously destroying river banks resulting in lands being overflowed or damaged is a felony for which one shall suffer death without benefit of clergy. later, transportation for seven years was made an alternative. all persons pretending to be patent gatherers or collectors for prison gaols or hospitals and all fencers, bearwards, common players of interludes, minstrels, jugglers, and pretended gypsies, and those dressing like egyptians or pretending to have skill in physiognomy, palm-reading, or like crafty science, or pretending to tell fortunes, and beggars, and all persons able in body who run away and leave their wives or children to the parish shall be deemed rogues and vagabonds. apprehenders of such persons bringing them before a justice of the peace may be rewarded 2s. any constable not apprehending such shall forfeit 10s. persons wandering outside the place determined by a justice of the peace to be his settlement may be whipped on the back until it is bloody or sent to hard labor at a house of correction. if he was dangerous and incorrigible, for instance as indicated by swearing falsely before a justice of the peace, he could suffer both punishments with the whipping being on three market days. if he escaped from the house of correction, it was felony. if he has been absent for more than two years, he could be put out as an apprentice for seven years in the realm, in the colonies, or in a british factory beyond the seas. included later were performers for gain from outside their parish of any play, tragedy, comedy, opera, farce or other entertainment of the stage, including performances in public places where wine, ale, beer, or other liquors are sold, or forfeit 50 pounds. excluded were performances authorized by the king in westminster. unlicensed places of entertainment are deemed disorderly (like bawdy houses and gaming houses) because they increase idleness, which produces mischief and inconvenience. persons therein may be seized by a constable. persons keeping such a place shall forfeit 100 pounds. no licensed place of entertainment may be opened until 5:00 p.m. later there was an award of 5s. for apprehending a person leaving his wife and children to the parish, living idly, refusing to work at going rates, or going from door or placing themselves in the streets to beg. this includes begging by persons who pretend to be soldiers, mariners, seafaring men, or harvest workers. these rogues and vagabonds shall be sent to hard labor at a house of correction for up to one month. the real soldiers, mariners, seafaring men, and harvest workers shall carry official documents indicating their route and limiting the time of such passage. persons pretending to be lame who beg are to be removed. if he comes back to beg, his back may be whipped until bloody. if a constable neglects this duty, he shall forfeit 10s. masters of ships bringing in vagabonds or beggars from ireland or the colonies shall forfeit five pounds for each one. this money shall be used for reconveying such people back at a price determined by a justice of the peace. a master of a ship refusing to take such a person shall forfeit five pounds. these vagabonds and beggars may be whipped. anyone who profanely curses or swears shall suffer the following penalties: day laborer, common soldier, common sailor, common seaman 1s., anyone else below the degree of gentleman 2s., gentlemen and above 5s., and for the second offense, a double fine, for further offense, a treble fine. if a person can't pay, he shall be put to hard labor at a house of correction for ten days, or if a common soldier, common sailor, or common seaman, he shall be set in the stocks for 1-2 hours. this is to prevent the provocation of divine vengeance. anyone setting up or maintaining lotteries or deceitful games must forfeit 200 pounds, or go to prison up to 6 months. any one who plays at such, such as by drawing lots or using cards or dice, must forfeit 50 pounds. sales of lottery items, such as houses, lands, plate, jewels, or ships, are void and these items will be forfeited to any person who sues. such have caused many families to become impoverished, especially through their children or through the servants of gentlemen, traders, and merchants. backgammon games are exempt. later, people who lost up to ten pounds in deceitful gaming were allowed to sue to recover this money from the winners. also, anyone winning or losing ten pounds at one time or twenty pounds within 24 hours shall be fined five times the value of such. offenders discovering others, who are convicted, are indemnified from all penalties and shall be admitted to give evidence. no one may run more than one horse, mare, or gelding in a horse race. no prize may be under 50 pounds value. this is because a great number of horse races for small prizes have contributed to idleness, to the impoverishment of the meaner sort of people, and has prejudiced the breed of strong and useful horses. wagers and agreements in the nature of puts and refusals relating to prices of stocks or securities are void. those making or executing such agreements must forfeit 500 pounds. those selling stock which one does not possess must forfeit 500 pounds. brokers negotiating such agreements must forfeit 100 pounds. only a person with an interest in the life or death of another may have insurance on this other, to prevent the mischievous kind of gaming that has been introduced. the punishment for forgery or counterfeiting or assisting in such or claiming a counterfeit item is good while knowing that it is not, with an intent to defraud is death without benefit of clergy. the punishment for perjury or subordination of perjury is hard labor in the house of correction for up to seven years or transportation for up to seven years. the punishment for altering numbers on bills of exchange or other payment papers is death. it is high treason to counterfeit the coinage. a person who tenders coin, knowing it to be false, shall spend six months in prison and acquire sureties for good behavior for the next six months. if he offends again, he shall spend two years in prison and acquire sureties for good behavior for the next two years. the third offense is felony without benefit of clergy. in 1773, makers, aiders, or possessors of any frame, mould, or instrument for forging paper notes of the bank of england and putting this identification thereon is felony for which one shall suffer death without benefit of clergy. anyone who forges promissory notes, bills of exchange, or inland bills of the bank of england by engraving or etching on metal or wood "bank of england" or "bank post bill" shall go to gaol for up to six months. anyone selling gold or silver ware, vessel, plate or other item large enough to be marked which has not been marked by its maker shall forfeit 10 pounds or be kept at hard labor up to six months. anyone counterfeiting such mark shall forfeit 100 pounds. later, vendors of these items were required to be licensed and the penalty for counterfeiting was raised to felony for which one shall suffer death without benefit of clergy. later still, transportation for fourteen years was allowed as an alternative. if an item was not all silver, e.g. had metal underneath, 100 pounds was to be forfeited. in 1769, receivers of stolen jewels and gold and silver plate and watches knowing them to be stolen, in cases of burglary and highway robbery, may be transported for 14 years. apples and pears may not be sold by any measure other than a standard water measure, or forfeit 10s., one-half to the informer, and one-half to the poor, except for measures sealed by the company of fruiterers. this is to decrease the suits between buyers and sellers. there shall be enough silver and gold on silver and gold plated silk thread and wire so that it does not crumble off, thereby wasting the bullion of the nation. this is also to encourage its export by making it competitive in trade with such foreign articles, which may not be imported. malt to be sold or exported must not be fraudulently mixed with unmalted grain to lower duties payable or forfeit 5s. any one who adulterates coffee with water, grease, butter, and such shall forfeit 20 pounds, 1/2 to the king, and 1/2 to the suer. walnut tree leaves, hop leaves, sycamore leaves and such may not be made to imitate tobacco leaves for sale or forfeit 5s. per pound. persons near london may not make unsound, hollow, or improperly heated bricks. makers of narrow woolen cloths must weave or set in the head of every piece his initials or forfeit one pound. this is to prevent frauds and abuses, particularly in stretching and straining the cloth. the fulling mill owner must append his seal of lead with his name and with his measurements. the searcher to be appointed must measure such cloths when wet for conformity to standard measurements and append his seal with his measurements. he may also inspect any places he chooses. in 1774, wool making employees not returning all working tools and implements and wool and all materials with which entrusted back to their employer or who fraudulently steams, damps, or waters such wool or who takes off any mark on any piece of cloth shall go to the house of correction for one month. if he absconds with or sells such or anyone fraudulently buys or receives such from him, a search warrant may be issued to seize any other such tools or material. if found, the person may be brought to account before a justice of the peace, and if the account is not satisfactory, he shall forfeit such. a search warrant may also be issued for houses on "just cause to suspect" by oath of a credible witness. for a second offense, the penalty is up to three months in a house of correction. for a third offense, the penalty is up to six months in a house of correction and public whipping. bakers must mark their bread with w for white, wh for wheaten, and h for household or forfeit 20s. to the informer. in 1758, a new assize of bread set prices for rye, barley, oats, and beans by the bushel. the prices for the three qualities of wheat, for wheaten (prized and unprized), and for household grain by the bushel were to be determined from within a statutory range by the local mayor or justice of the peace. mayors and justices of the peace were to determine a fair profit for their local bakers for all the types of bread. a miller, mealman, or baker adulterating bread was to forfeit 40s. 10 pounds, part of which money could be used in publishing his name, abode, and offense in the local newspaper. later, there was a forfeiture of 1-5s. for every ounce underweight. household bread was to be 1/4 cheaper than wheaten or forfeit 10-40s. bread inferior to wheaten was not to be sold at a price higher than household or forfeit up to 20s. if the forfeiture was not paid, it could be levied by distress, or otherwise the offender was to spend one month in gaol or a house of correction. straw to be sold in london must be sound, firmly bound in a truss, and of a given weight or forfeit it and 20s. if no truss, and 1s. if in truss but underweight or of mixed quality. handlers must keep registers of sellers, buyers, weights, dates of sale, and prices or forfeit 10-20s. frame-work knitted pieces and stockings shall be marked with the correct number of threads by the master, frame-work knitter, or master hosier, or forfeit the goods and 5 pounds. if a journeyman apprentice, or servant employ does not mark correctly, he shall forfeit the goods and 5s.-40s. sellers of such shall forfeit the goods and 5 pounds per piece. at every fishing season, the quantity of salt, foreign or domestic, used by a proprietor for curing fish for export shall be accounted and sworn to so that it can be compared with the quantity of fish exported by the proprietor to ensure that the salt duties are fully paid, or forfeit 40 pounds. if such salt is sold for other uses than curing fish, the proprietor is to forfeit 20s. per bushel sold and the users thereof, to forfeit 20s. per bushel bought, delivered, or used. if one can't pay, he is to be whipped and put to hard labor in a house of correction for up to three months. agreements between coal owners, lightermen, fitters, master or owners of ships, hindering the free sale, loading, and unloading, navigating, or disposing of coals are illegal, null, and void. this is engrossing and has caused the price of coals to go up. no coal trader or dealer may use his own lighters, barges, or other vessels to carry coals on the thames river to and from any ship and to and from any wharf, dock, or creek because this has impaired the business of the watermen and wherrymen, whose vessels must now be registered and display such mark on their hulls. no lightermen nor buyers of coals may act as agent for any master or owner of a ship importing coals into london or forfeit 200 pounds, because this combination has caused the price of coal to go up. selling one sort of coal for another is punishable by forfeiture of 500 pounds. only standard size coal sacks may be used for selling coal and they must be sealed and stamped by an official at the guildhouse before sale. the mayor and aldermen of london may set the price of coals coming into this port. in other areas, justices of the peace set the prices of coals which allowed "a competent profit". if a merchant refused to sell at that price, the justice of the peace could authorize seizure and sale by officers. later, coal measurers must give the coal cart driver a ticket with the name of the sellers and consumers, the quantity and quality of the coal, its price, the date of sale, and the name of the cart driver or forfeit 5 pounds. the cart driver must give this ticket to the consumer or forfeit 5 pounds. if coal is carried by cart without a ticket, the seller forfeits 50 pounds and the driver 5 pounds. anyone who willfully and maliciously set on fire any mine or pit of coal is guilty of felony and shall suffer death without benefit of clergy. anyone who willfully and maliciously floods a coal work, mine pit or who makes underground cavities or passages with intent to destroy or damage such, or obstructs any sough or sewer made for draining such, which has been held in common for 50 years, shall forfeit treble damages. this is to deter these offenses, which have been done to enhance the price of coals and gain a monopoly thereof. if twelve or more people who riotously and tumultuously assemble and disturb the peace, do not disburse within an hour of an order to disburse by a justice or sheriff or mayor, they shall be deemed felons without benefit of clergy. any people pulling down or destroying a church, dwelling house, barn, stable, or other out house; any mill; any engine used for draining water from any coal, lead, tin, or copper mines, or for drawing coals from mines; or bridge, wagon, or fences used in such industry will be deemed felons without benefit of clergy and may be transported for seven years. the cost of repair is to be borne by the hundred or town. owners of timber trees, fruit trees, and others used for shelter, ornament, or profit which are cut down or otherwise destroyed shall be made good by his parish or town, as are hedges and dikes overthrown by persons in the night. in 1765, anyone cutting down or destroying any oak or other timber trees at night shall forfeit up to 20 pounds for the first offense, up to 30 pounds for the second offense, and shall be transported to the colonies for seven years for any further offense. anyone digging up or destroying or carrying away any root, shrub, or plant worth up to 5s. in a garden, nursery, or other enclosed ground at night shall forfeit up to 2 pounds for the first offense, up to 5 pounds for the second offense, and shall be transported to the colonies for seven years for any further offense. anyone not paying was to be gaoled. aiders and buyers who knew the item was stolen incurred the same penalties. later, many other types of trees, such as beach, ash, elm, cedar, and walnut were included as timber trees, and hollies, thorns, and quicksets included as plants. the previous statute that substituted burning in the cheek for burning in the hand is repealed because this not only did not deter offenders, but on the contrary, made them unfit for honest livelihoods and therefore more desperate. those convicted of theft or larceny shall be burnt in the hand and may be kept at hard labor in a house of correction for 2-24 months, without bail. persons using violence to hinder the purchase or transportation of grain, e.g. by beating or wounding a buyer; beating or wounding the driver or horse of a cart loaded with wheat, flour, meal, malt, or other grain, or cutting the harness of or driving away the horse, or cutting or carrying away the sacks of grain is to be put in the common gaol or house of correction with hard labor for 1-3 months, and whipped in the market place between 11:00 and 2:00. the penalty for a second offense or for destroying a storehouse or granary where grain is kept to be exported or for taking or spoiling such grain, or for throwing such off a ship or vessel is transportation for seven years. the hundreds concerned are to pay damages up to a total of 100 pounds, but only if notice is given to the constable within two days and there is an oath and examination before a justice of the peace within ten days of the owner or his servants. if any offender is convicted within a year, the hundreds are released. anyone who steals at night any cloth or wool or woolen goods set out to dry on racks shall forfeit treble damages, or if he can't pay, be sent to prison for three months without bail. for the second offense, he shall forfeit treble damages and be sent to prison for six months without bail. for the third offense, he shall be transported for seven years. upon complaint, a justice of the peace may authorize a constable or other peace officer to enter and search houses, outhouses, yards, and gardens of a person suspected by the owner. this person shall account to the justice of the peace and may bring a witness to his purchase of the items. if the account is unsatisfactory, he shall be penalized. anyone taking linens, fustians, or cottons set out for whitening, bleaching, or printing up to the value of 10s. in lands, grounds, or buildings may be transported for seven years. later, this penalty was increased to death without benefit of clergy or transportation for fourteen years. anyone stealing or maliciously pulling up or destroying any turnips on a person's land must pay damages or go to gaol for up to one month. he may be whipped. the penalty for a second offense is three months in a house of correction. this statute of 1750 was, in 1773, extended to include potatoes, cabbages, parsnips, peas, and carrots. a penalty up to 10s. was added. evidence of the owner was to be taken. in 1769, anyone who steals a dog or receives such knowing it to be stolen shall forfeit 20-30 pounds for the first offense, and 30-50 pounds for the second offense or go to gaol or the house of correction for 12-18 months and be publicly whipped there. search warrants may be issued to search for stolen dogs or their skins. one-half of the forfeiture will go to the informer. persons pretending witchcraft, sorcery, enchantment, or conjuration; or telling fortunes; or pretending by occult knowledge to discover the location of stolen goods may be imprisoned for one year without bail and put in the pillory in the market place once in every quarter of such year. anyone stealing goods off shipwrecks, or putting out a false light to bring a ship to danger, or beating or wounding with an intent to kill or otherwise obstructing a person escaping from the ship to save his life shall suffer death without benefit of clergy. except that good of small value taken without violence shall be punished as petit larceny. the houses of suspect people may be searched by warrant. if there are goods found or if people are found offering goods to sell, they may be ordered by a justice to give an account of these goods. if the account is not satisfactory, the punishment is forfeiture of treble their value or six months in prison. a reasonable reward may be given to the discoverer. anyone assaulting a magistrate or officer involved in salvage work shall be transported for seven years. officers of the revenue who collude with importers to return to them goods which have been seized for nonpayment of duties shall forfeit 500 pounds and lose office, unless he discloses his accomplices within two months. the importer shall forfeit treble the value of such goods. armed person to the number of three assembled to assist in illegal exporting or running, landing, or carrying away prohibited or uncustomed goods and any person apprehended by any revenue officer, and anyone with his face blackened or masked who obstructs, assaults, opposes, or resists any revenue officer seizing such goods, or who shoots at or maims or wounds any revenue officer attempting to go on any ship shall suffer death as felons without benefit of clergy or serve as a commons sailor in the navy for at least one year. harborers of such offenders will be transported for seven years. the hundreds shall pay 100 pounds for each revenue officer killed, and up to 40 pounds for each one beaten, wounded, or maimed, and damages up to 200 pounds for goods, unless an offender is caught and convicted in six months. there is a reward of 500 pounds to an apprehender, and 50 pounds for an attempt to apprehend in which one loses a limb or eye or is maimed or wounded, and 100 pounds to his family if he is killed. an offender who brings two of his accomplices to justice will be acquitted and rewarded 50 pounds for each such accomplice. later, an incentive was given to customs officers to have a portion of the proceeds of the sale of such goods seized by them, such as 2/3 for wrought silks and calicoes, and 1/3 for tea, coffee, foreign brandy, and rum. still later, any person could seize wrought silk, including ribbons, laces, and girdles containing it, from the importer or retailer, and the importer was to forfeit 100 pounds, and any import assistants 50 pounds, and retailers or concealers 50 pounds, with one half going to the suer. also, the goods were to be publicly burnt. still later, the penalty was increased to forfeiture of 200 pounds for all offenders, but not including wearers, and the goods were to be publicly sold for export rather than burnt. then the import of silk stockings, silk mitts, and silk gloves was prohibited for the support of the english silk industry. retailers, sellers, and concealers of such were to forfeit the goods and 200 pounds. search warrants could be issued. in 1765, importers, sellers, and manufacturing users of most foreign wrought silks or velvets were to forfeit the goods and 100 pounds. the goods were sold for export with the proceeds going 1/2 to the king, and 1/2 to the seizing officer. the wearer was not liable. the burden of proof of the place of manufacture was on the person prosecuted rather than on the prosecutor. persons breaking into houses or shops to destroy any wool or silk being made or tools or racks used shall suffer death as felons, to prevent combinations of workmen. in 1768, bounties were made available to american exporters of raw silk to great britain, whose climate was not conducive to the growing of mulberry trees on which silk worms feed. in 1774, cotton printed, stained, or dyed that has been manufactured in great britain may be worn and used, but must have a mark woven in the warp that it was manufactured in great britain. persons importing other such cloth shall forfeit it and ten pounds per piece. persons selling such with a counterfeit stamp with an intent to defraud shall suffer death without benefit of clergy. the protective measures for english silk manufacture did not work well. any ship not more than 50 tons hovering on the coast with customable or prohibited goods may be boarded by a customs officer, who may demand bond for treble the value of the goods. in 1724, persons contracting with artificers and manufacturers of wool, iron, steel, brass, and other metals, clock-makers, watchmakers to go to a foreign country and there receive greater wages and advantages shall forfeit 100 pounds and spend 3 months in prison for the first offense, and shall forfeit a sum determined by the court and spend 12 months in prison for the second offense. an artificer or manufacturer not returning after warning is given by the ambassador is to forfeit hereditaments, goods, and lands and to be deemed an alien. later, in 1750, cotton and silk were included and the penalty was increased to 500 pounds and 12 months in gaol for the first offense, and 1000 pounds and 2 years in prison for the second offense. also, anyone exporting tools of wool or silk manufacture was to forfeit the tools and 200 pounds. this statute was strictly enforced. in 1774, tools of cotton and linen manufacture were included. in 1772, all statutes against engrossing, forestalling, and regrating were repealed because they had prevented free trade and tended to increase prices, e.g. of grain, meal, flour, cattle, and other victuals. anyone assisting a felon (except for petty larceny) to try to escape from gaol, is guilty of felony and shall be transported for seven years. anyone assisting a person who owes or is to pay 100 pounds to try to escape from gaol is guilty of a misdemeanor. in 1772, prison keepers were indemnified from creditors for any escapes of debtors due to conspiracy and break out with weapons and firearms rather than negligence, as had been occurring. any pirate, accessory to piracy, commander or master or other person of any ship or vessel who trades with a pirate or furnishes him with ammunition or provisions of fits out a ship to trade with pirates shall suffer death and loss of lands, goods, and chattels. seamen maimed in fighting pirates may be admitted into greenwich hospital. (this hospital received support from duties paid by vessels of the realm and of the colonies.) masters or seamen not fighting shall forfeit their wages and spend 6 months in prison if the ship is taken. masters shall not advance to any seamen above half his wages since deserting is the chief occasion of their turning into pirates. in london penalties for crimes against property rose so that by 1740, a child could be hanged for stealing a handkerchief worth 1s. from a person's body. no more than 600 pounds of gunpowder may be kept in any building in london or westminster or suburbs thereof. later, no more than 200 pounds of gunpowder were allowed to be kept therein for more than 24 hours. buildings may be searched on "reasonable cause" shown to a justice of the peace. later, no more than 400 pounds of gunpowder could be kept for more than 24 hours near any town, or more than 300 pounds for more than 24 hours in any place. then no gunpowder could be conveyed by land over 25 barrels or by water over 200 barrels. it was customary for officers to take the oaths of allegiance and supremacy to any new monarch. when george i became king in 1714, all civil and military officers, clergy, schoolmasters, and lawyers, solicitors, clerks, etc. living within 30 miles of london had to take an oath of allegiance and a new oath that the person was not papist and agreed that no foreigners had jurisdiction in the realm, such as to excommunicate someone and thus declaring he could be legitimately killed. soon after, it was required that papists had to register their names and real estates. commissioners were appointed to make inquiries. if a person did not take the oaths or did not register, he was to forfeit 2/3 of his land to the king and 1/3 to a protestant who sued for such. this was in order to deter future rebellions against the king and efforts to destroy the protestant religion. papists enlisting in the army are liable to corporal punishment, but not death, as determined by a court martial. any mayor, bailiff, or other magistrate who is present at any meeting for public worship other than the church of england will lose office and is barred from any public office or employment. as late as 1722, there was a papist conspiracy to take the tower of london and the king, and make a catholic king. this resulted in the imprisonment of the conspirators and a new statute: persons not taking the oath of allegiance and above oath that they were not papist shall register their lands and yearly rents and pay double the land tax and 100,000 pounds. after payment, they are discharged from forfeiting 2/3 of their lands' rents for one year. jews may not refuse suitable maintenance to their children who are christian to pressure them to convert back to judaism. in 1712 was the last execution for witchcraft. by statute of 1736, witchcraft, sorcery, enchantment, and conjuration were abolished as crimes. black slaves were common for a time in london. this was a result of the voluminous triangle trade of manufactured goods from england, slaves from west africa, and sugar and tobacco from the west indies. slavery was largely abolished by judicial decision of chief justice mansfield in 1772. if a sheriff does not answer for money collected for the exchequer, he shall forfeit treble damages to the aggrieved person, double the sum missing to the aggrieved person, 100 pounds to the king, and 100 pounds to the party who sues. if a sheriff take a fee for levying or collecting money due to the king (except 4d. for an acquittance) or take a sum for not levying money due, he is guilty of extortion, injustice, and oppression and shall forfeit treble damages and costs to the aggrieved person, and double the sum extorted to the aggrieved person. a sheriff may not levy more than 12d. for every 20s. of yearly income of any manor for up to 100 pounds of income, and 6d. for value over 100 pounds. no one may cut pine trees that are fit for masts of ship in new england without license by the queen or forfeit 100 pounds. later, pine trees on private property were excluded. citizens of great britain may sue colonial debtors by oath before british magistrates and a debtor's colonial lands and houses and negroes may be used to satisfy his debts. anyone pretending to act under a charter and taking subscriptions in great britain or the colonies must forfeit treble damages. no hats, including beaver hats, may be exported from any colony even to another colony because this has hurt british hat manufacture. the penalty is 500 pounds. no one in the colonies except present hatmakers who are householders and journeymen may make hats unless they serve a seven year apprenticeship. no hatmaker in the colonies may have more than two apprentices at once. whaling ships near greenland were prohibited from returning until their hulls were full. vessels built or fitted out in america may engage in whaling. pig iron from the colonies may be imported free, but there may be no mill for slitting or rolling iron and no plateing-forge or other engine to work with a tilt hammer and no furnace for making steel erected or used in the colonies or forfeit 200 pounds. no paper bills of credit may be used in new england because such have depreciated. william blackstone lectured on law at oxford university in 1753. as a result, the first professorship of english law was established. his lectures were published in 1769 as the "commentaries on the laws of england". they greatly influenced the american colonists and were the basis of legal education in england and america for years. they were comprehensive and covered real property, crime and punishment, court procedure, contract, corporations, and commercial law. he wrote "the great charter and charter of the forest" in 1759. judicial procedure for actions under 10 pounds in a superior court and actions under 40s. in an inferior court, the offender shall be served with process to appear in court rather than being arrested. for money at issue, an affidavit shall be taken. no more money may be taken for bail than the amount at controversy. this is to prevent frivolous and vexatious arrests. perjurers, forgers, those involved in barratry or suborning perjury, and pretenders practicing as attorneys or solicitors in the courts of law or equity shall be transported for seven years to the american colonies. unqualified people acting as attorneys or solicitors in the county court shall forfeit 20 pounds. no one may practice as an attorney in the courts of king's bench, common pleas, or exchequer until he has been examined by a judge of such court on his fitness and qualifications and has taken the oath to honestly demean himself and practice according to his best knowledge and ability. the same applies to a solicitor in the equity courts. this shall not exclude persons who have been bound to an attorney or solicitor for four years. attorneys and solicitors, with consent of an attorney of another court, may participate in proceedings of such other court. no attorney may have more than two clerks bound to him at one time. attorneys may be admitted as solicitors and vice-versa. there were twelve common law justices of the court of the king's bench, court of common pleas, and court of the exchequer. the chief justices of all of these courts were paid partly from fees paid to the court. the other justices of these courts were paid completely by salary, which in 1759 was well over 500 pounds per year. these justices were to continue in office even after a king died and could be removed only for good cause upon the address of both houses of parliament. the officers of these courts were attorneys. there was one justice at doctors' commons. the two chancery justices (since edward i) were the lord chancellor and the master of the rolls. the salary of the eleven masters of the court of chancery in 1765 was 400 pounds per year. the officers of this court were solicitors. appeals from the exchequer could be made to a court of the king's bench and common pleas combined. appeals from common pleas could be made to the king's bench. decisions of the king's bench and other common law courts could be appealed to parliament. the common law courts rode circuit twice a year in five circuits and once a year in the north circuit. so an accused person could spend up to a year in gaol waiting for trial. few prisoners were granted bail. in each common law court, the law justices in banc would hear demurrers [contentions that the other party was wrong in the law]. no one with an interest in a suit, including the plaintiff and the defendant, could give evidence. there was no power to amend pleadings, so misspelling of the defendant's name, for instance, could result in dismissal of the suit. in 1730, the pleadings and indictments ceased to be in latin. compurgation still existed for debt and detinue. writs of error at variance from the original record or otherwise defective may be amended to correct the defect by the court where such writ is returnable. no judgment is to be reversed for any defect in any bill or writ, excepting an appeal of felony or murder, or misdemeanor. this is to prevent delays of justice. justices of the peace may correct defects of form on appeals to them. plaintiffs neglecting to go to trial after an issue has been joined may be nonsuited. the qualification for jury service is having land with an income over rents of at least 20 pounds, with leases for 500 years or more, or 99 years, or any term determinable on one or more lives. being a freeholder is not necessary. in london, the qualification is being a householder and having lands to the value of 100 pounds. no sheriff may excuse a qualified person from jury service for money or other reward. selection of jurors for each case is to be done by some indifferent person pulling their names from a box. later, persons refusing jury service could be fined. poor persons may be paid up to 6d. to give evidence against felons. pirates may not be tried again for the same crime or for a certain crime and high treason. when the marine force was raised, the marines were also given protection from double jeopardy. in chancery, a plaintiff filed a complaint and interrogatories prepared by counsel. only in chancery could there be discovery. the interrogatories were addressed by court officials to witnesses without the presence of the parties or their lawyers. officials wrote down the answers in their own terms. so there was no crossexamination possible. most decrees took many years to be made. the ordinary administrative court of first instance is that of one or two justices of the peace who issue orders in matters of public safety, public order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, fire, begging, and vagrancy. he examined suspicious persons and issued warrants for the removal of persons likely to become a public charge. the justice of the peace also regulates wages, servants, apprentices, and day laborers. in his judicial capacity, he tried all crimes and felonies except treason, though in practice death penalty cases were transferred to the assize justices. the justices of the peace of a hundred hold special sessions such as for appointment of parochial officers, highway disputes, and the grant of wine, beer, and spirit licenses. the appointment of overseers of the poor, authorization of parish rates, and reading of the riot act to mobs to disperse them, required more than one of the justices of the peace of the hundred to participate. all the justices of the peace of the county met four times a year at quarter sessions to hear appeals from penal sentences, to determine the county rate of tax, to appoint treasurers of the county and governors of the county prison and house of correction, to issue regulations on prices of provisions and on wages, to settle fees of the county officials, to grant licenses for powder-mills and other industries, to hear nuisance complaints such as those against parishes for failing to keep their roads in repair, to make regulations for the holding of markets, to hear complaints concerning local government, and to register dissenting chapels. in more and more matters specified by statute, the quarter sessions heard appeals from the orders of the individual justices of the peace instead of common law courts hearing them by writ of certiorari. the writ of certiorari allows administrative decisions to be reviewed by the common law courts for compliance with law, competency of the court, and interpretation of the administrative law. the writ of habeas corpus appealed administrative decisions to imprison not only after arrest for criminal proceedings, but any coercive measure for enforcing an administrative order. the writ of mandamus was available for enforcing the injunctions of administrative law against towns, corporations, and all other authorities and private persons, where the ordinary punishments were insufficient. justices of the peace in rural areas were squires and in towns aldermen. in 1747, justices of the peace were authorized to decide issues between masters and mistresses and their employees who were hired for at least one year. if a servant misbehaved, they could authorize reduction of wage, discharge, and hard labor at a house of correction up to one month. if a servant was not paid, he could authorize payment of wages up to 10 pounds for an agricultural servant, and up to 5 pounds for an artificer, handicraftsman, miner, collier, keelman, pitman, glassman, potter, or ordinary laborer. later, tinners and miners were added to the last category. in 1758, employees of less than a year were included. in 1775, justices of the peace were authorized to administer any oath for the purpose of levying penalties. to be a justice of the peace, one must have income of 100 pounds a year from a freehold, copyhold, or customary estate that is for life or for a term of at least 21 years, or be entitled to a reversion of lands leased for 1 or 2 or 3 lives, or for any term of years determinable on the death of 1 or 2 or 3 lives. excepted were peers, justices, and heads of colleges or vice chancellors at the universities. the justices of the peace were selected by the superintending sheriffs and lords lieutenant, the latter of whom were usually peer with a ministers' office or a high court official. no attorney or solicitor or proctor could be a justice of the peace unless the locality had justices of the peace by charter. a request for certiorari for removal of convictions, judgments, orders made by justices of the peace must be made within six months and after notice to the justice of the peace who may argue cause against granting certiorari. in the common law courts, trespass in ejectment served the purposes of most of the actions involving land. assumpsit covered the whole province of debt, and much more. trover more than covered the old province of detinue. trespass still served for all cases in which the defendant had been guilty of directly applying force to the plaintiff's body, goods or chattels. trespass on the case covered miscellaneous torts. replevin was still used. covenant remained in use for the enforcement of promises under seal. account gradually came under the equity jurisdiction of chancery. common law writs of dower are largely superseded by the relief given to the doweress in the courts of equity, where new and valuable rights were given to her and to her personal representatives against the heir and his representatives. the actions of indebitatus assumpsit is being extended to actions upon quasi-contract, in which the element of contract is not required e.g. quantum meruit, where a contract is implied from the facts of the case. mercantile law was developed by the common law courts, especially the king's bench. the king was to appoint the marshal of the king's bench. the marshal was to select his inferior officers to hold office as long as they "behave themselves well within". these offices had been sold by james i to a certain person, his heirs, and assigns. the marshal was to keep the prison of this court in good repair from his fees and profits of office. the office of sheriff was now an accessory department of the common law courts for summons, executions, summoning the jury, and carrying out the sentence of the law. summons for excise offenses may be left at a person's abode, workhouse, or shop as well as on his person. the coroner's office now investigated unusual deaths with a jury from the neighborhood elected by county freeholders. the last beheading was of a scottish lord in 1747; he had been involved in an attempt to restore the stuarts to the throne. so many people came that some overcrowded bleachers fell down and crushed about 20 spectators. henceforth, every sentence of death was by hanging, even for peers. in 1772, the process of pressing a man to death, if he refused to plead to an indictment was abolished. in 1772, persons accused or indicted, in great britain or america, of felony or piracy who stand mute shall be convicted of such charge. property of a felon was still forfeited to the crown. from 1749 on were established special procedures for speedy decisions in local courts in some areas for debts or damages under 40s. and imprisonment for such was limited for up to three months. otherwise, sentences were longer, and debts grew during the time in prison. when prisons were overcrowded, parliament let the inmates out if they gave up their possessions. they could go to georgia. in 1763, the homes of john wilkes and others were searched for a seditious and treasonous published paper and all related papers because they had been rumored to have some relationship to the conception, writing, publication, or distribution of the paper. wilkes had such papers and was convicted of libel. he countersued for damages due to criminal trespass. the court held that general search warrants were subversive of the liberty of the subject of the search in violation of the british constitution, declared the statute void, and found for wilkes. the court of common pleas agreed on appeal and put the burden of proof on the persons searching to justify the search warrant. his decision gave support to william pitt's assertion that "every man's home is his castle". there were felons' prisons and debtors' prisons. sometimes they were one and the same. there was much fighting among inmates. the inmates slept on hay if lucky. there were no washing facilities and little light. counties or friends paid for their bread. they were also sold beer, which made them drunk and riotous. the sale of beer was a recognized and legitimate source of profit to the keeper. this was remedied by statute of 1760 that no sheriff or other officer may take an arrested person to a tavern or other public house or charge him for any wine, beer, ale, victuals, tobacco or other liquor without his consent and shall allow prisoners to be brought beer, ale, victuals, bedding, and linen as the prisoner sees fit. sheriffs often kept people imprisoned unless and until they paid all their fees due to the sheriff. in 1772 was founded the society for the discharge and relief of persons imprisoned for small debts for those inmates unfortunate instead of fraudulent or extravagant. legacies were often made to debtors. there was much gaol distemper fever with fatal consequences. when john howard, a grocer who had inherited wealth, but poor health, became a sheriff, he visited many gaols. when he saw the squalid conditions there, he advocated hygenic practices. in 1774, justices of the peace were authorized to order walls and ceilings of gaols to be scraped and washed, ventilators for supplies of fresh air, a separate room for the sick prisoners, commodious bathing tubs, provision of clothes for prisoners, keeping of prisoners not below the ground, and apothecaries at a stated salary to attend and to report the state of health of prisoners. in 1773, clergymen were employed in gaols to alleviate the distress of prisoners and to contribute to morality and religion. also, no longer may any fees be taken by gaol keepers or sheriffs because persons not indicted or found not guilty have been kept in prison pending payment of such fees. instead, the counties shall pay to gaol keepers up to 13s.4d. per prisoner so discharged. there was much gaol distemper fever with fatal consequences, so in 1774, justices of the peace were authorized to order walls and ceilings of gaols to be scraped and washed, ventilators for supplies of fresh air, a separate room for the sick prisoners, commodious bathing tubs, provision of clothes for prisoners, keeping of prisoners not below the ground, and apothecaries at a stated salary to attend and to report the state of health of prisoners. colonials acts which infringed upon the english common or statutory law, or were against the interests of other american colonies were submitted to the privy council, which allowed or disallowed them. appeals from the colonial courts came to the privy council. judges in the colonies were appointed by royal governors and paid by colonial legislatures. they served at the pleasure of the king. colonial courts included superior courts of judicature, courts of assize, general gaol delivery, general sessions of the peace, inferior court of common pleas, and commissions of oyer and terminer. there were also justices of the peace, marshals, provosts, and attorney generals. there were few cases of vagrancy, theft, or homicide. this may have been because the people were few and dependent on each other, and economic opportunities were great. in 1735 john peter zenger, printer of the new york weekly journal, was tried for seditious libel for its criticisms and satire of the new york governor, who exceeded his powers, such as by demanding that bills from the assembly be presented to him before the council, and by arbitrarily displacing judges. seditious libel was defined as "false, scandalous, and seditious" writings. traditionally, this word "false" could mean "disloyal". the prosecution argued that truth of such criticism was an aggravation of the crime because it was more provoking of sedition, as found by star chamber cases. the defense argued for a right publically to remonstrate abuses of power by public officials to guard against violence and destruction of liberties by men in authority. the american jurors, who were supposed to be familiar with the facts pertinent to the case, knew the truth of the paper's criticisms. they agreed with the defense that the word "false" in the definition: "false, scandalous, and seditious" writings, to mean "untrue" instead of "disloyal". so truth became a defense to seditious libel. pamphletts describing the zenger trial and acquittal were published and republished in london and the colonies. benefit of clergy was available in the american colonies to all who could read and write. it could be used in trials for manslaughter. chapter 19: epilogue in the time period after 1776, there developed the fuel-saving kitchen range with closed-in-fire between oven and hot-water tank, hot and cold running water, the use of flushing toilets, edmund cartwright's power weaving machine, samuel crompton's mule for spinning many threads by waterpower in 1779, james watt's steam engine with steam pushing the piston both ways as well as rotary motion and used in many kinds of factories instead of water power, henry bessimer's inexpensive low carbon steel in 1856, iron and steel bridges and ships, drilling and use of oil and natural gas as fuel, adam smith's "wealth of nations" opining that competition of the market could distribute resources best, thomas paine's "rights of man", free trade, democracy, popular elections, secret ballots, universal suffrage, civil service without patronage, mary wollstonecraft's "vindication of the rights of women", university education for women (university of london), policemen (in london in 1829), clipper ships (the final development of sailing before steam), percussion caps on guns, periodic chart of chemical elements, college degrees in biology, chemistry, and physics, geology, maxwell's theory of electromagnetism, albert einstein's theory of relativity, quantum theory, laws of thermodynamics that the energy of the universe is a constant amount but entropy always increases, computers, decoding of the dna sequence, charles darwin's evolution, joseph lister's disinfectant in 1867, edward jenner's smallpox vaccine, louis pasteur's germ theory of disease, anesthetics, aspirin, insulin, penicillin, antibiotics, surgery to replace body parts, tampon, contraceptive pill, discovery of planet uranus by observation and thence of neptune and pluto by calculation from discrepancies in uranus' orbit, hubble space telescope, big bang theory, buses (horse-drawn from 1829 with 18 passengers), subways, trains (1804), public railway (1825, goods drawn by engine and passengers by horse), steam ships, steel ships, aircraft carriers, submarines, tanks, friction matches, chewing gum, pajamas, gas street lamps, traffic lights and signs, ambulances, concrete and asphalt highways, census in 1801, children's playgrounds, knee length dresses, chemical artificial fertilizers, substitution of steel for iron, trade unions, digital watches, wrist watches, compact disks, intelligence tests, personality tests, wool-combing machine, statistical analysis, bell curves, standard deviations, united nations, carpet sweeper, vacuum cleaner, central heating, apartment high rises, business skyscrapers, electricity, electric lights, sewing machines, water closets in richer houses (after 1778), cholera epidemics, sewers for waste disposal, industrial revolution factories, labor strikes, cars, tractors, charles dickens, ice boxes and refrigerators, telephones, central heating with radiators, hot water heaters by gas, gas ovens, humidifiers, canned food, fourpronged forks, suits of matching jackets and trousers, zippers, velcro, wall-to-wall carpeting, popular elections, airplanes, photography, record players, frozen food; cast iron kitchen range for cooking, baking, and boiling; radio, television, plastics, submarines, economics, multinational corporations, weather forecasting, braille, airplanes, space ship to moon, factory assembly lines, washing machines, dishwashers, sewing machine, microwave ovens, copier machines, dna evidence, nuclear bomb and nuclear energy, guided missiles, quartz watches, bicycles, artificial insemination and invitro fertilization, investment advice, retirement planning, amusement parks, catalogue buying, labor contracts, childrens' summer camps, teenage culture, synthetic materials, typewriters, cardboard boxes, marketing studies, factory assembly line, gene-mapping, animal cloning, internet, hiking and camping trips, world travel vacations, telegraph, word processing, gas, oil, research, credit cards, dental floss, camcorders, mass production, nursing homes, cameras, copy machines, wheelchairs, hospital operations, artificial limbs, organ transplants, pharmacies, public circulating libraries, children's playgrounds, cosmetic surgery, physical exercising equipment, vitamin pills, sports clubs, condominiums, molecules, chromosomes, observatories, radar, sonar, nutrition, supermarkets, disability insurance, liability insurance, chemical fertilizers, ddt, record players, video tape recorders, retirement homes, movies;, planned obsolescence, box-spring mattresses, brain scans, x-rays, organized professional sports, dry cleaners, foreign embassies, psychiatry, veterinarians, drug abuse, wage garnishment, tractors, lawnmowers, breeding zoos, world wars, nuclear deterrence, fingerprinting, forensic evidence, toxic waste, acid rain, elevators, picture windows, sewing machines, automation, cybernetics, pizza delivery, health insurance, walt disney, satellite transmission, radiocarbon dating, ice cream, air conditioning, ball point pens, school blackboards, bullets in 1890s, electronic mail, first law of thermodynamics: the conservation of energy, the second law of thermodynamics: potential energy turns into high-temperature thermal energy and finally into low-temperature thermal energy, but these processes are not reversible. the science of philology, on the meaning and history of words began the concept of a natural development of languages which conflicted with the theological view that god had created all the different languages when he punished man for trying to build an edifice to heaven by destroying the tower of babel and dispersing the people into all parts of the world with different languages derived from the original: hebrew, so that they could not communicate with each other. the science of geology developed the concept of tremendous changes in the earth's surface which altered horizontal layers of deposits, in which there were fossils, which challenged the biblical notion of a world and all its animals created in a week. in 1784, lord henry cavendish proved that the sole result of mixing hydrogen with oxygen was water, thus disproving the theory of the four elements of air, earth, fire, and water. in the united states, there was no king, a separation of the executive, the legislative, and the judicial; a separation of church and state, and no aristocratic titles. in this time period the development of law includes abandonment of common law crimes such as seditious libel in the united states, negligence and duty of due care in the united states replacing the english strict liability for torts, substitution of the caveat emptor doctrine for the english sound price doctrine in contract law in the united states, truth as a defense to charge of libel in the united states, repeal in england of seven year requirement for apprentices in 1814, married women's property acts beginning 1839: (1. right to sue and be sued, 2. right to her own earnings, 3. right to own real and personal property, 4. right to make contracts 5. right to stay in family homestead with children, right to custody of children if husband abandons her), divorce in england by courts in 1857, in united states extension of grounds for divorce beyond adultery, bigamy, and desertion to cruel treatment, habitual drunkenness, and conviction of a felony and finally no-fault divorce, decline of father's paramount claim to the custody of his minor children in the absence of a strong showing of misconduct or unfitness, tender years doctrine (in england in 1839 mother to have custody of child under seven and to have access over seven) and then best interests of child doctrine in custody disputes, legal obligation for parents to support their minor children, adoption about the 1850s; in england allowance of women attorneys in 1922, women to vote in 1928, adultery by a husband to be adjudged as culpable as adultery by a wife in 1923, the rights of a mother over her child to be equal to those of a father in 1924, and the rights of a woman to property to be the same as those of a man in 1926; child labor laws, full religious freedom with admission of nonconformists to the two universities in england in 1871, probable cause instead of suspicion for search and seizure, mandamus, rule against perpetuities, mandatory secondary education, kidnapping, false impersonation, liens, obscenity, estoppel for detrimental reliance on a promise, unjust enrichment, pensions, trademarks and unfair competition, antitrust, privacy, freedom of thought, freedom of speech, freedom of the press, bankruptcy, civil rights, union organizing laws, laws on discrimination due to race, sex, ethnic or national origin, disability, age, and sexual preference; sexual harassment and stalking laws, product liability, international law, environmental laws protecting air and water quality, workers compensation, unemployment compensation, controlled substances, intellectual property law; and contingency fees only in the united states, in england, there was an end of trial by combat in 1819, of compurgation in 1833, and of benefit of clergy. in 1820, there were 160 offences in england with the death penalty, including stealing from a dwelling house to the value of 40s., stealing from a shop to a value of 5s., and stealing anything privily from the person. the penalty for treason was still drawing and quartering. it was a privilege of the peerage to be immune from any punishment upon a first conviction of felony. as of 1823, church courts could no longer decide cases of perjury; as of 1855, no cases of defamation, but only church matters. hearsay rules and exceptions were developed in the 1800s. in 1816, jurors were to have no knowledge except the evidence accepted at court. in 1837, counsel for a person indicted for high treason could examine and crossexamine witnesses. in 1839, a defendant could see the written record of evidence against him. in 1898, the accused was allowed to give evidence. pleaders do not have to specify the form of action relied on, but rather give facts which give rise to a cause of action. judicial procedure includes grand juries, which hear evidence, court transcript by court stenographers, discovery, depositions, and presumption of innocence (after salem witch trials in the united states). the united states changed judicial procedure in several respects: parties were allowed to testify, writ pleading was abandoned, and prisons were used for reforming prisoners. debtors prisons were abolished. also, the law was seen not as divinely inspired eternal law to be found by judges, but law made by man to suit the times. state judges served for life during good behavior; they could be removed by the procedure of impeachment. in some states, judges were elected. there were privileges on testimony such as attorney-client, priest-confessor, and husbandwife. appendix: sovereigns of england accession name 871 alfred the great 899 edward the elder son of alfred 924 aethelstan son of edward the elder 939 edmund son of edward the elder 946 eadred son of edward the elder 955 eadwig son of edmund 959 edgar son of edmund 975 edward the martyr son of edgar 978 aethelred the unready son of edgar 1016 edmund ironside son of aethelred the unready 1016 canute 1035 harold i harefoot son of canute 1040 hardicanute son of canute 1042 edward the confessor son of aethelred the unready 1066 harold ii 1066 william i, the conquerer 1087 william ii son of william i 1100 henry i (and matilda) son of william i 1135 stephen 1154 henry ii (and eleanor) grandson of henry i 1189 richard i, the lion-hearted son of henry ii 1199 john son of henry ii 1216 henry iii son of john 1272 edward i (and eleanor) son of henry iii 1307 edward ii son of edward i 1327 edward iii son of edward ii 1377 richard ii grandson of edward iii 1399 henry iv 1413 henry v son of henry iv 1422 henry vi son of henry v 1461 edward iv 1483 edward v son of edward iv 1483 richard iii 1485 henry vii (and elizabeth) 1509 henry viii son of henry vii 1547 edward vi son of henry viii 1553 mary daughter of henry viii 1558 elizabeth i daughter of henry viii 1603 james i 1625 charles i son of james i 1649 oliver cromwell 1660 charles ii son of charles i 1685 james ii son of charles i 1689 william and mary 1694 william iii 1702 anne granddaughter of james ii 1714 george i 1727 george ii son of george i 1760 george iii son of george ii bibliography 1. ancient laws and institutes of england, printed by command of his late majesty king william iv under the direction of the commissioners of the public records of the kingdom, vol 1; 1840. 2. the laws of the kings of england from edmund to henry i, a.j. robertson, 1925. 3. the statutes of the realm 4. statutes at large 5. a treatise of the lawes of the forest, john manwood, 1615 6. history of 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michael prestwich, 1988 42. franchises of the city of london, george norton, 1829 43. the works of alfred 44. salisbury plain, r. whitlock, 1955 45. william the conqueror, f.m. stenton, 1967 46. life of william the conqueror, t. roscoe, 1846 47. elizabeth i, anne somerset, 1992 48. queen elizabeth, katherine anthony, 1929 49. industry in england, h.deb. gibbons, 1897 50. henry ii, w. l. warren, 1973 51. edward i, l.f. salzman, 1968 52. the yorkist age, paul kendall, 1962 53. edward the confessor, frank barlow, 1970 54. the livery companies of the city of london, w. carew hazlitt, 1892 55. parliamentary representation of the city of coventry, thomas whitley, 1894 56. the government of england under henry i, judith green, 1986 57. lives of the queens of england, agnes strickland, 1878 58. the oldest version of the customs of newcastle, c. johnson, 1925 59. charter of henry ii to the burgesses of newcastle, a. m. oliver, 1175 60. the charters and letters patent granted by the kings and queens of england to bristol, samuel seyer, 1812 61. magna carta, legend and legacy, william swindler, 1965 62. chronicles and memorials of great britain and ireland during the middle ages: letters and papers of richard iii and henry vii 63. sons of the conqueror, g. slocombe, 1960 64. the spirit of the classical canon law, richard helmholz, 1996 65. open fields, charles orwin, 1938 66. the medieval foundation of england, arthur bryant, 1967 67. from alfred to henry iii, 871-1272, christopher brooks, 1961 68. the anglo-norman nobility in the reign of henry i: the second generation, charlotte newman, 1988 69. the birth of britain vol. 1, winston s. churchill, 1956 70. medieval london, gordon hoime, 1927 71. a history of london, stephen inwood, 1998 72. tudor england, john guy, 1988 73. reign of henry vii, r. storey, 1968 74. elizabethan life in town and country, m. st. claire byrne, 1925 75. the elizabethan world, edited by norman kotner, 1967 76. the evolution of modern medicine, william osler, 1921 77. shakespeare's england, oxford university press, 1916 78. the lion and the throne, catherine bowen, 1956 79. johnson's england, ed. a.s. turberville, 1933 80. education in renaissance england, kenneth charlton, 1965 81. the scholastic curriculum of early seventeenth-century cambridge, william costello, 1958. 82. english people on the eve of colonization 1603-1630, wallace notestein, 1954 83. sir walter ralegh, willard wallace, 1959 84. sir walter ralegh, robert lacey, 1974 85. constitutional documents of the reign of james i, j.r. tanner, 1961 86. history of the english people, volumes iii and iv, green 1890 87. hume's history of england, volumes v and vi, david hume 88. english society 1580-1680, keith wrightson, 1982 89. the century of revolution 1603-1714, christopher hill, 1961 90. charles i and the puritan upheaval, allen french, 1955 91. charles i, christopher hibbert, 1968 92. constitutional documents of the puritan revolution 1625-1660, samuel gardiner, 1927 93. life and work of the people of england in the 17th century, dorothy hartley et al, 1929 94. home life under the stuarts, elizabeth godfrey, 1903 95. cromwell the lord protector, antonia fraser, 1973 96. the greatness of oliver cromwell, maurice ashley, 1957 97. acts and ordinances of the interregnum 1642-1660, c.h.firth & r.s.rait, 1911 98. history of the english people, john r. green, 1916. 99. a social and industrial history of england, f.w. tickner, 1929 100. a history of everyday things in england, marjorie and chb quennell, 1919 101. the english, norman f. cantor, 1967 102. a concise economic history of britain, john clapham, 1951 103. world book encyclopedia 104. encyclopedia britannica 105. history of the english constitution, rudolph gneist, 1889 106. the life of the law, alfred knight, 1996 107. norton anthology of english literature, ed. m.h.abrams, 1962 108. the bank of england, john clapham, 1945 109. the honorable company, a history of the east india company, john keay, 1991 110. a history of british india, w.w. hunter, 1966 111. the bank of england, john clapham, 1945 112. early speculative bubbles and increase in the supply of money, m.a. thesis, douglas e. french, 1992 113. royal charles, antonia fraser, 1980 114. charles ii, ronald hutton, 1989 115. the life and times of charles ii, christopher falkus, 1972 116. life in a noble household 1641-1700, gladys thomson, 1959 117. the weaker vessel, antonia fraser, 1984 118. a constitutional and legal history of medieval england, bryce lyon, 1960 119. the laws respecting women, j. johnson, 1777 120. mediaeval england, mary bateson, 1904 121. elizabeth: the struggle for the throne, david starkey, 2001 122. a social history of england, asa briggs, 1983 123. the year 1000, robert lacey, 1999 124. a history of chemistry, charles-albert reichen, 1963 125. john locke, economist and social scientist, karen vaughn, 1980 126. becoming visible, women in european history, ed. bridenthal & koonz, 1977 127. wonder book of the world's progress; inventions and customs, henry williams, 1935 128. industrial revolution in the eighteenth century, paul mantoux, 1961 129. eighteenth century england, dorothy marshall, 1962 130. georgian england, a.e. richardson, 1931 131. the pageant of georgian england, elizabeth burton, 1967 132. the georgian gentleman, michael brander, 1973 133. england in the eighteenth century, j.h. plumb, 1950 134. london life in the eighteenth century, m. dorothy george, 1925 135. law and jurisprudence in american history, stephen presser & jamil zainaldin, 1995 136. england in the age of hogarth, derek jarrett, 1974 137. the first four georges, j.h. plumb, 1956 138. the review of american colonial legislation by the king in council, elmer russell, 1915 139. select pleas of the crown, f.w. maitland, 1888 140. select pleas in manorial and other seignorial courts, f.w. maitland, 1889 141. the forms of action at common law, f.w. maitland, 1909 142. equity, f.w. maitland 143. the story of the declaration of independence, ira g. corn, jr., 1977 144. internet medieval sourcebook 145. out of the fiery furnace video, robert raymond 146. a history of chemistry, charles reichen, 1963 147. seven ideas that shook the universe, nathan spielberg, 1987 148. a history of the warfare of science with theology in christendom, andrew white, 1955 149. american political and social history, harold faulkner, 1941 150. essays in science, albert einstein, 1934 151. the character of physical law, richard feynman, 1965 152. dictionary of national biography, george smith, 1882 153. elizabeth i: collected works, ed. leah marcus et al, 2000 154. the crime of galileo, giorgio de santillana, 1955 155. from copernicus to einstein, hans reichenbach, 1942 156. the horizon book of the elizabethan world, ed. richard ketchum, 1967 157. tower of london, christopher hibbert, 1971 158. tudor royal proclamations, ed. p.l. hughes & j.f. larkin, 1964 159. selected historical essays of f.w.maitland, ed. helen cam, 1957 160. lloyd's of london, raymond flower & michael jones, 1974 161. weather, philip thompson etc., 1965 162. constitutional history of england, william stubbs, 1891 163. hillforts of england and wales, james dyer, 1981 164. the last two million years, reader's digest association, 1973 165. london: the civic spirit, robert goldston, 1969 166. domestic life in england, norah lofts, 1976 167. descartes, tom sorell, 1987 168. life in the english country house, mark girouard, 1978 169. extraordinary origins of everyday things, charles panati, 1987 170. god's peace and king's peace: the laws of edward the confessor, bruce o'brien, 1999 171. the bill of rights, irving brant, 1965 172. issac newton, adventurer in thought; a. rupert hall, 1992 173. the life of issac newton, richard s. westfall, 1993 174. a history of the circle, ernest zebrowski, 1999 175. pelican history of england: 1. roman britain, i.a. richmond, 1955 2. the beginnings of english society, dorothy whitelock, 1952 3. english society in the early middle ages, doris stenton, 1951 4. england in the late middle ages, a.r. myers, 1952 5. tudor england, s.t. bindoff, 1950 6. england in the seventeenth century, maurice ashley, 1952 the end index abbey; abbot, abbess; abduction; accessory; account; administrator; admiralty; adultery; adverse possession; adulterated; advowson; aethelbert; aethelred; affidavit; agreement; agriculture; augustine. st.; aids; alderman; ale; alehouses; alfred; alienate; aliens; allegiance; alms; amerce; america; anabaptist; ancient; anglo-saxons; anglo-saxon chronicles; annulment; apothecaries; apparel laws; appeal; appellate; apprentices; appurtance; archbishop; architect; aristotle; arkwright, richard; arraign; arson; arthur; articles of religion; artificer; artisan; assault; assay; assign; assize; assizes; assumpsit; astrology; at pleasure; atheism; attainder; attaint; attorneys; babies; bachelor; bachelor of arts; back-berend; bacon, francis; bacon, roger; bacteriology; bail; bailiff; baker; ballads; bank of england; bankruptcy; baptist; bar; barber; barber-surgeon; bargain and sale; barons; baron court; barristers; bastard; bath; battery; beadle; beating; becket; beer; beggar; benefit of clergy; benevolence; beowulf; bequeath, bequest; bible; bigamy; bill; bill of attainder; bill of exchange; bill of rights; billet; birmingham; bishops; black death; blackstone, william; blinding; blodwite; blood-letting; book of common prayer; bordars; borough; boston; bot; boyle, robert; bracton, henry de; brass; brawling; breach; breach of the peace; bread; brewster; bribery; brick; bridge; bristol; brokers; bullock, case of; burgess; burglary; burh; burial; burning; butcher; butler; calais; calvin; cambridge university; canals; cannon; capitalism; carbon dioxide; carpenter; carriages; carucage; carver; castle; castle-guard; cathedral; catholics; cattle; cavaliers; cecil, william; censorship; ceorl; certiorari; challenge; champerty; chancellor; chancery; chancery court; charter; chattel; chaucer, geoffrey; chemistry; chevage; chief justice; chief justiciars; child; child abuse; children; childwyte; christian; chivalry; christmas; church; church of england; church sanctuary; cicero; circuit; citizen; city; civil; civil courts; civil war; claim; clans; class; clergy; clerics; cloth-maker; coaches; coal; coffee houses; coin; coke, edward; college of physicians and surgeons; colonies; commission; common land; common law; commons, house of; commonwealth; compurgation; compurgator; confession; congregationalists; conqueror; consideration; constable; constitution; contract; conventile; conveyance; conviction; cooper; copernicus; copper; copyhold; copyrights; cordwainer; coronation charter; coroner; corporation; corruption of the blood; council; counterfeit; county; county courts; courtesy; court of common pleas; court of high commission; court of king's bench; courtesy; court martial; covenant; coverture; coventry; craft; craft guild; cranmer, thomas; creditor; crime; criminal; cromwell, oliver; cromwell, thomas; crown; cupbearer; curfew; currier; custody; customary tenant; customs; damages; danegeld; danes; darrein presentment; daughter; death; death penalty; debt, debtors; deceased; decree; deed; deer; defamation; defendant; demesne; denizen; deodand; descendant; descartes, renee; desertion; detinue; devise; dispensary; disseisin; dissenter; distraint; distress; divorce; doctorate; dog; doomsday book; doublet; dower; dowery; drake, francis; drover; drunkenness; duel; during good behavior; duties; dwelling; dyers; earl; east india company; easter; ecclesiastic; edith; education; eleanor, wife of edward i; eleanor, wife of henry ii; election; electricity; elizabeth, wife of henry vii; embroiderer; enclosure; english; engrose; episcopal church; equity; equity court; erasmus; escape from gaol; escheat, escheator; escuage; esquire; established church; estate; estate administration; estate tail; exchequer; excommunication; excise tax; executor; export; extent; eyre; factory; fair; father; fealty; fee; fee simple; fee tail; felony; feme covert; feme sole; feoff; feudal; feudal tenures; fihtwite; fine; fire; fire-fighters; fishermen, fishmonger; flint; flogging; flying shuttle; folkmoot; food riots; footmen; forced loans; forced marriage; forestall; forest charter; forestall; forests; forfeit; forgery; forms of action; fornication; fortifications; foster-lean; france; frank-almoin; franklin, benjamin; frankpledge; fraternity; fraud; freedom of speech; freehold, freeholder; freeman; freemason; freewoman; friar; frith guild; fuller; fustian; fyrd; fyrdwite; gage; galilei, galileo; gambling; games; gaols; gaol distemper; gawaine; gentleman; gentry; geology; georgia; german, christopher st., gift; gilbert, william; guildhall; guilds; gin; glanvill; glass; glorious revolution; gloves; god; godfather; gold; goldsmiths; good parliament; goods; government; grain; grammar schools; grand assize; grand jury; grand tour; grants; grave; gravitation; greek; gresham, thomas; grithbrice; guardian, guardianship; guenevere; hair; hall; halley, edmond; hamsocne; hand-habbende; harboring; harrington, james; harvard college; health; heir; heresy; heriot; hidage; hide; high commission court; hilda; hillforts; hobbes, thomas; holidays, holydays; homage; homicide; hooke, robert; horse; horse racing; hospitals; house-breaking; house-holder; house of commons; house of lords; houses; houses of correction; hue and cry; humanism, humors; hundred rolls; huygens, christian; hundred; hundred courts; hunt; husband; hustings court; hut; illegitimacy; illness; illuminators; impeach; import; imprisonment; incest; income tax; independents; indenture; indictment; industry; infangthef; inflation; inheritance; innkeeper; inns of court; inoculation; inquest; insurance; interest; interrogatory; intestate; iron; itinerant; jail; jesus; jews; joan of arc; joint tenants; joint-stock companies; jointure; jones, indigo; journeyman; judge; jurisdiction; jurors; jury; justice; justices in eyre; justices of assize; justices of the peace; justiciar; kent county; keplar, johannes; kill; kin, kindred; king; king alfred the great; king charles i; king charles ii; king edward i; king edward the confessor; king george iii; king henry i; king henry ii; king henry vii; king henry viii; king james i; king james ii; king john; king richard the lion-hearted; king william and mary; king william i, the conqueror; king's peace; knight; knight's fee; knights' guild; knitting; laborer; ladies; land; landlord; land-owner; larceny; lastage; latin; law merchant; lawsuit; lawyer; laxton; lay; leap year; lease; leather; leet court; legacy; legislation; legitimacy; leicester; letters; libel; liberi quadripartitus; library; license; life; life-estate; lighthouse; limb; linen; lion of justice; literacy; literature; littleton, thomas; livery; lloyds; locke, john; london; long parliament; longitude; lord; lords, house of; loriner; lottery; loyalty; machine; magistrates; magna carta; magnate; maiden; mail; majic; malicious prosecution; maintenance; manchester; manor; manor courts; manufacturing; manumission; marco polo; market; marriage; marriage agreement; marriage portion; marshall; marquise; massachusetts; master of arts; masters; matilda; mayflower; mayor; maypole; mead; measures; meat; medicine; melee; member; merchandise; merchant; merchant adventurers; merchant guilds; merchet; merciless parliament; mercy; merton; mesne; methodists; microscope; middlesex; midwives; military service; militia; miller; minister; minor; minstrels; miskenning; moat; model parliament; monarchy; monasteries; money; moneyer; monks; monopoly; moot; more, thomas; morgen-gift; morning gift; mort d'ancestor; mortgage; mortmain; mother; murder; mutilation; napier, john; navy; newcastleon-tyne; new england; new model army; newspapers; newton, issac; new world; nobility; noblemen, nobles; nonconformists; normans; novel disseisin; nuisance; nun; oakham, william; oaths; offender; oil; one hundred year war; open field system; ordeal; ordinance; orphans; outlaw; oxford university; oxygen; papists; parent; parishes; parliament; parliament of saints; partition; party; pascal, blaise; passport; patents; pauper; pawn; peasant's revolt; peers; peine forte et dure; penalty; penitentiary; penn, william; pennsylvania; penny; per stirpes; perjury; personal injury; personal property; petit serjeanty; petition; petition of right; physicians; piers plowman; pigherds; pilgrim; pillory; pipe rolls; piracy; pirate; plague; plaintiff; plato; plays; pleading; pleas; police; pontage; poor; pope; popery; population; port; portreeve; portsoken ward; posse; possess; postal system; post mortem; pottery; praecipe in capite; pressing; presbyterians; prescription; presentment; priest; printing; prison; privy council; privy seal; probable cause; probate; proclamation; promise under seal; promissory note; property; prosecutor; prostitutes; protectorate; protestants; puritans; purveyance; putting out system; quakers; quaranteen, quarter sessions; queen; queen elizabeth i; queen mary; queen's bench; quo warranto; rack; ralegh, walter; rape; ray, john; real action; recognition; reeve; reformation; regrate; release; relief; religion; remainder; renaissance; rent; replevin; residence; restoration; reversion; revolt; reward; rights; riot; riot act; roads; robbery; robin hood; roman law; root and branch petition; roundheads; royal court; royal navy; royal society; royalists; rump parliament; russia; sacrament; sacrifice; sailor; sake and soke; sale; salt; saltworks; sanctuary; sandwich; saxon; scaetts; scavage; scholar; school; science; scolds; scot; scrofula; scutage; seal; seamen; searchers; search warrant; sedition, seditious; seisin; selfdefense; self-help; separatists; serf; serjeanty; servant; service; servitude; settlement; sewer; shakespeare, william; shaving; sheep; shelley's case; sheriff; sheriff's turn; shillings; ships; shipwreck; shire; shire courts; shire-gemot; shoemaker; short parliament; shrine; sickness; silver; slade's case; slander; slave; slingshot; smallpox; smith; smithfield; socage; sokemen; soldiers; solicitor; son; spanish armada; speedy pursuit; spinning; spinning jenny; spinning wheel; spinsters; spouse; st. augustine; st. germain; st. lazarus; st. paul's church; statute of laborers; squire; staple; star chamber court; strangers; steam; steel; stengesdint; steward; stock-and-land lease; stocking-frame knitters; stocks; stolen goods; stone; stonehenge; straw; streets; subtenants; successor; sue; suit; summary; summon; sunday; supporters of the bill of rights society; surety; surgery; surname; swearing; swords; tale; tallage; tanner; tavern; tax; tea; team; ten commandments; tenancies; tenancy, tenant; tenants in common; tenement; tenure; term; testament; thames, river; theft; thegn; theodore; theology; theow; thermometer; thirty years' war; tile; tiler; tin; title; tolls; tories; tort; torture; tournament; tower hill; tower of london; town; town-reeve; trades, tradesmen; transportation; treason, high and petit; treasure trove; treasury; trespass; trespass on the case; trial by combat (battle); trover; turnpike; twelve; tyne; umbrella, unitarians; university; usury; use-trust; vagrants, vagrancy; vassal; verderer; verdict; vessels; vikings; vill; villages; villeinage; villeins; vintner; virginia; wall; wallis, john; war of the roses; ward, wardship; wardmoot; wardrobe; warrantor, warranty; waste; water; watermen; watermill; waterwheel; watt, james; wealthy; weapon; weaving, weavers; webs; wed; wedding; weights; weir; well; wer, wergeld; wesley, john; westminster; whigs; whipping; white tower; whitsuntide; widows; wife; wife-beating; wills; winchester; wind mills; window tax; wine; witch; witchcraft; wite; witen; witenagemot; witnesses; wives; wolsey, thomas; wyclif, john; woman-covert; women; wool; wounding; writs; writs of assistance; writs of error; year books; yeomanry, yeomen copyright (c) 2004 s. a. reilly our legal heritage king aethelbert king george iii, 1776 600 a.d. 1776 by s. a. reilly, attorney 175 e. delaware place chicago, illinois 60611-7715 s.a.reilly@att.net copyright (c) 2004 preface this was written to appreciate what laws have been in existence for a long time and therefore have proven their success in maintaining a stable society. its purpose is also to see the historical context in which our legal doctrines developed. it includes the inception of the common law system, which was praised because it made law which was not handed down by an absolutist king; the origin of the jury system; the meaning of the magna carta provisions in their historical context; and the emergence of attorneys. this book is a primer. one may read it without prior knowledge of history or law, although it will be more meaningful to attorneys than to others. it can serve as an introduction on which to base further reading in english legal history. it defines terms unique to english legal history. however, the meaning of some terms in king aethelbert's code in chapter 1 are unknown or inexact. in the table of contents, the title of each chapter denotes an important legal development in the given time period for that chapter. each chapter is divided into three sections: the times, the law, and judicial procedure. the times section sets a background and context in which to better understand the law of that period. the usual subject matter of history such as battles, wars, royal intrigues, periods of corruption, and international relations are omitted as not helping to understand the process of civilization and development of the law. standard practices are described, but there are often variations with locality. also, change did not come abruptly, but with vacillations, e.g. the change from pagan to christian belief and the change to allowance of loans for interest. the scientific revolution was accepted only slowly. there were often many attempts made for change before it actually occurred, e.g. gaining parliamentary power over the king's privileges, such as taxation. the law section describes the law governing the behavior and conduct of the populace. it includes law of that time which is the same, similar, or a building block to the law of today. in earlier times this is both statutory law and the common law of the courts. the magna carta, which is quoted in chapter 7, is the first statute of england and is listed first in the "statutes of the realm" and the "statutes at large". the law sections of chapters 7 18 mainly quote or paraphrase most of these statutes. excluded are statutes which do not help us understand the development of our law, such as statutes governing wales after its conquest and statutes on succession rights to the throne. the judicial procedure section describes the process of applying the law and trying cases, and jurisdictions. it also contains some examples of cases. for easy comparison, amounts of money expressed in pounds or marks [danish denomination] have often been converted to the smaller denominations of shillings and pence. there are twenty shillings in a pound. a mark in silver is two-thirds of a pound. shillings are abbreviated: "s." there are twelve pennies or pence in a norman shilling. pence are abbreviated "d." six shillings and two pence is denoted 6s.2d. a scaett was a coin of silver and copper of lesser denomination than a shilling. there were no coins of the denomination of shilling during anglo-saxon times. the sources and reference books from which information was obtained are listed in a bibliography instead of being contained in tedious footnotes. there is no index to pages because the electronic text will print out its pages differently on different computers with different computer settings. instead, a word search may be done on the electronic text. dedication and acknowledgements a vassar college faculty member once dedicated her book to her students, but for whom it would have been written much earlier. this book "our legal heritage" is dedicated to the faculty of vassar college, without whom it would never have been written. much appreciation goes to professor james curtin of loyola law school for his review and comments on this book's medieval period: chapters 4-10, and especially his comment that "i learned quite a bit about life in those days from your work." thanks go to loyola university law school professor george anastaplo for introducing me to professor curtin. much appreciation goes to professor lacey baldwin smith of northwestern university's history department for his review and comments on this book's tudor and stuart periods: chapters 11-17, especially his comment that he learned a lot. thanks go to northwestern university law school professor steven presser for introducing me to professor smith. finally, many thanks go to fellow mensan william wedgeworth for proof-reading the entire book. table of contents chapters: 1. tort law as the first written law: to 600 2. oaths and perjury: 600-900 3. marriage law: 900-1066 4. martial "law": 1066-1100 5. criminal law and prosecution: 1100-1154 6. common law for all freemen: 1154-1215 7. magna carta: the first statute: 1215-1272 8. land law: 1272-1348 9. legislating the economy: 1348-1399 10. equity from chancery court: 1399-1485 11. use-trust of land: 1485-1509 12. wills and testaments of lands and goods: 1509-1558 13. consideration and contract law: 1558-1601 14. welfare for the poor: 1601-1625 15. independence of the courts: 1625-1642 16. freedom of religion: 1642-1660 17. habeas corpus: 1660-1702 18. service of process instead of arrest: 1702-1776 19. epilogue: 1776-2000 appendix: sovereigns of england bibliography chapter 1 the times: before 600 a.d. the settlement of england goes back thousands of years. at first, people hunted and gathered their food. they wore animal skins over their bodies for warmth and around their feet for protection when walking. these skins were sewn together with bone needles and threads made from animal sinews. they carried small items by hooking them onto their belts. they used bone and stone tools, e.g. for preparing skins. their uncombed hair was held by thistlethorns, animal spines, or straight bone hair pins. they wore conical hats of bound rush and lived in rush shelters. early clans, headed by kings, lived in huts on top of hills or other high places and fortified by circular or contour earth ditches and banks behind which they could gather for protection. they were probably dug with antler picks and wood spades. the people lived in rectangular huts with four wood posts supporting a roof. the walls were made of saplings, and a mixture of mud and straw. cooking was in a clay oven inside or over an open fire on the outside. water was carried in animal skins or leather pouches from springs lower on the hill up to the settlement. forests abounded with wolves, bears, deer, wild boars, and wild cattle. they could more easily be seen from the hill tops. pathways extended through this camp of huts and for many miles beyond. for wives, men married women of their clan or bought or captured other women, perhaps with the help of a best man. they carried their unwilling wives over the thresholds of their huts, which were sometimes in places kept secret from her family. the first month of marriage was called the honeymoon because the couple was given mead, a drink with fermented honey and herbs, for the first month of their marriage. a wife wore a gold wedding band on the ring finger of her left hand to show that she was married. women usually stayed at home caring for children, preparing meals, and making baskets. they also made wool felt and spun and wove wool into a coarse cloth. flax was grown and woven into a coarse linen cloth. spinning the strands into one continuous thread was done on a stick, which the woman could carry about and spin at anytime when her hands were free. the weaving was done on an upright or warp-weighted loom. people of means draped the cloth around their bodies and fastened it with a metal brooch inlayed with gold, gems, and shell, which were glued on with glue that was obtained from melting animal hooves. people drank from hollowedout animal horns, which they could carry from belts. they could tie things with rawhide strips or rope braids they made. kings drank from animal horns decorated with gold or from cups of amber, shale, or pure gold. men and women wore pendants and necklaces of colorful stones, shells, amber beads, bones, and deer teeth. they skinned and cut animals with hand-axes and knives made of flint dug up from pits and formed by hitting flakes off. the speared fish with barbed bone prongs or wrapped bait around a flint, bone, or shell fish hook. on the coast, they made bone harpoons for deep-sea fish. the flint ax was used to shape wood and bone and was just strong enough to fell a tree, although the process was very slow. the king, who was tall and strong, led his men in hunting groups to kill deer and other wild animals in the forests and to fish in the streams. some men brought their hunting dogs on leashes to follow scent trails to the animal. the men threw stones and spears with flint points at the animals. they used wood clubs to beat them, at the same time using wood shields to protect their bodies. they watched the phases of the moon and learned to predict when it would be full and give the most light for night hunting. this began the concept of a month. circles of stone like stonehenge were built with alignments to paths of the moon. if hunting groups from two clans tried to follow the same deer, there might be a fight between the clans or a blood feud. after the battle, the clan would bring back its dead and wounded. a priest officiated over a funeral for a dead man. his wife would often also go on the funeral pyre with him. the priest also officiated over sacrifices of humans, who were usually offenders found guilty of transgressions. sacrifices were usually made in time of war or pestilence, and usually before the winter made food scarce. the clan ate deer that had been cooked on a spit over a fire, and fruits and vegetables which had been gathered by the women. they drank water from springs. in the spring, food was plentiful. there were eggs of different colors in nests and many hare to eat. the goddess easter was celebrated at this time. after this hunting and gathering era, there was farming and domestication of animals such as horses, pigs, sheep, goats, chicken, and cattle. of these, the pig was the most important meat supply, being killed and salted for winter use. next in importance were the cattle. sheep were kept primarily for their wool. flocks and herds were taken to pastures. the male cattle, with wood yokes, pulled ploughs in the fields of barley and wheat. the female goat and cow provided milk, butter, and cheese. the chickens provided eggs. the hoe, spade, and grinding stone were used. thread was spun with a hand-held spindle which one hand held while the other hand alternately formed the thread from a mass and then wound it around the spindle. a coarse cloth was woven and worn as a tunic which had been cut from the cloth. kings wore tunics decorated with sheet gold. decorated pottery was made from clay and used to hold liquids and for food preparation and consumption. during the period of "lent" [from the word "lencten", which means spring], it was forbidden to eat any meat or fish. this was the season in which many animals were born and grew to maturity. wood carts with four wheels were used to transport produce and manure. horses were used for transportation of people or goods. wood dug-out boats and paddles were used to fish on rivers or on the seacoast. clans had settlements near rivers. each settlement had a meadow, for the mowing of hay, and a simple mill, with round timber huts, covered with branches or thatch or turf supported by a ring of posts. inside was a hearth with smoke going up through a hole in the roof, and a cauldron for cooking food. there was an upright loom in the darkness. the floor was swept clean. at the door were spears or bags of slingstones ready for immediate use. the king lived in the largest hut. gullies outside carried off excess water. each hut had a garden for fruit and vegetables. a goat or cow might be tied out of reach of the garden. there was a fence or hedge surrounding and protecting the garden area and dwelling. buckets and cauldrons which had originated from the mediterranean were used. querns with the top circular stone turned by hand over the bottom stone were used for grinding grain. there were ovens to dry and roast grain. grain was first eaten as a porridge or cereal. there were square wood granaries on stilts and wood racks on which to dry hay. grain was stored in concealed pits in the earth which were lined with drystone or basket work or clay and made airtight by sealing with clay or dung. old pits were converted into waste dumps, burials, or latrines. outside the fence were an acre or two of fields of wheat and barley, and sometimes oats and rye. wheat and rye were sown in the fall, and oats and barley in the spring. sowing was by men or two oxen drawing a simple scratch plough. the crops were all harvested in the summer. in this two-field system, land was held by peasants in units designed to support a single extended family. these fields were usually enclosed with a hedge to keep animals from eating the crop and to define the territory of the settlement from that of its neighbors. flax was grown and made into linen cloth. beyond the fields were pastures for cattle and sheep grazing. there was often an area for beehives. this was subsistence level farming. pottery was given symmetry when formed with use of a wheel and heated in increasingly hot kilns. from kilns used for pottery, it was noticed that lumps of gold or copper ore within would melt and assume the shape of what they had been resting on. these were the first metals, and could be beaten into various shapes, such as ornaments. then the liquid ore was poured into moulds carved out of stones to make axes and daggers, which were reheated and hammered to become strong. copper-tipped drills, chisels, punches and awls were also made. the bodies of deceased were buried far away from any village in wood coffins, except for kings, who were placed in large stone coffins after being wrapped in linen. buried with them were a few personal items, such as copper daggers, flat copper axes, and awls [small pointed tool for piercing holes in leather, wood, or other soft materials.]. the deceased was buried in a coffin with a stone on top deep in the earth to keep the spirit of the dead from coming out to haunt the living. it was learned that tin added to the copper made a stronger metal: bronze. stone hammers, and bronze and iron tools, were used to make cooking pots, weapons, breast plates, and horse bits, which were formed from moulds and/or forged by bronze smiths and blacksmiths from iron extracted from iron ore heated in bowlshaped hearths. typically one man operated the bellows to keep the fire hot while another did the hammering. bronze was made into sickles for harvesting, razors for shaving, tweezers, straight hair pins, safety pins for clothes, armlets, neck-rings, and mirrors. weapons included bows and arrows, flint and copper daggers, bronze swords and spears, stone axes, and shields of wood with bronze mountings. the bows and arrows probably evolved from spear throwing rods. kings in body armor fought with chariots drawn by two horses. the horse harnesses had bronze fittings. the chariots had wood wheels, later with iron rims. when bronze came into use, there was a demand for its constituent parts: copper and tin, which were traded by rafts on waterways and the sea. when iron came into use, there were wrought iron axes, saws, adzes [ax with curved blade used to dress wood], files, ploughshares, harrows [set of spikes to break clods of earth on ploughed land and also to cover seed when sewn], scythes, billhooks [thick knife with hooked point used to prune shrubs], and spits for hearths. lead was mined. there was some glassmaking of beads. wrought iron bars were used as currency. hillforts now had wooden palisades on top of their banks to protect the enclosed farmsteads and villages from stock wandering off or being taken by rustlers, and from attacks by wild animals or other people. later a rampart was added from which sentries could patrol. these were supported by timber and/or stone structures. timbers were probably transported by carts or dragged by oxen. at the entrances were several openings only one of which really allowed entry. the others went between banks into dead ends and served as traps in which to kill the enemy from above. gates were of wood, some hung from hinges on posts which could be locked. later guard chambers were added, some with space for hearths and beds. sometimes further concentric circles of banks and ditches, and perhaps a second rampart, were added around these forts. they could reach to 14 acres. the ramparts are sufficiently widely spaced to make sling-shotting out from them highly effective, but to minimize the dangers from sling-shotting from without. the additional banks and ditches could be used to create cattle corridors or to protect against spear-thrown firebrands. however, few forts had springs of water within them, indicating that attacks on them were probably expected to be short. attacks usually began with warriors bristling with weapons and blowing war trumpets shouting insults to the foe, while their kings dashed about in chariots. sometimes champions from each side fought in single combat. they took the heads of those they killed to hang from their belts or place on wood spikes at the gates. prisoners, including women and children, might become slaves. kings sometimes lived in separate palisades where they kept their horses and chariots. circles of big stones like stonehenge were rebuilt so that the sun's position with respect to the stones would indicate the day of longest sunlight and the day of shortest sunlight. between these days there was an optimum time to harvest the crops before fall, when plants dried up and leaves fell from the trees. the winter solstice, when the days began to get longer was cause for celebration. in the next season, there was an optimum time to plant seeds so they could spring up from the ground as new growth. so farming gave rise to the concept of a year. certain changes of the year were celebrated, such as easter, named for the goddess of the dawn, which occurred in the east (after lent); may day celebrating the revival of life; lammas around july, when the wheat crop was ready for harvesting; and on october 31 the celtic eve of samhain, when the spirits of the dead came back to visit homes and demand food or else cast an evil spell on the refusing homes; and at which masked and costumed inhabitants representing the souls of the dead paraded to the outskirts of the settlements to lead the ghosts away from their homes; and at which animals and humans, who might be deemed to be possessed by spirits, were sacrificed or killed perhaps as examples, in huge bonfires [bonefires] as those assembled looked out for spirits and evil beings. there was an agricultural revolution from the two-field system in which one field was fallow to the three-field system, in which there were three large fields for the heavy and fertile land. each field was divided into long and narrow strips. each strip represented a day's work with the plough. one field had wheat, or perhaps rye, another had barley, oats, beans, or peas, and the third was fallow. it had been observed that legumes such as peas and beans restored the soil. these were rotated yearly. there was a newly invented plough that was heavy and made of wood and later had an attached iron blade. the plough had a mould-board which caught the soil stirred by the plough blade and threw it into a ridge alongside the furrow dug by the plough blade. this plough was too heavy for two oxen and was pulled by a team of about eight to ten oxen. each ox was owned by a different man as was the plough, because no one peasant could afford the complete set. each freeman was allotted certain strips in each field to bear crops. his strips were far from each other, which insured some very fertile and some only fair soil, and some land near his village dwelling and some far away. these strips he cultivated, sowed with seed, and harvested for himself and his family. after the harvest, they reverted to common ownership for grazing by pigs, sheep, and geese. as soon as haymaking was over, the meadows became common grazing land for horses, cows, and oxen. not just any inhabitant, but usually only those who owned a piece of land in the parish were entitled to graze their animals on the common land, and each owner had this right of pasture for a definite number of animals. the faster horse replaced the ox as the primary work animal. other farm implements were: coulters, which gave free passage to the plough by cutting weeds and turf, picks, spades and shovels, reaping hooks and scythes, and sledge hammers and anvils. strips of land for agriculture were added from waste land as the community grew. waste lands were moors bristling with brushwood, or gorse, heather and wanton weeds, reed-coated marshes, quaking peat-bogs, or woods grown haphazard on sand or rock. with iron axes, forests could be cleared to provide more arable land. some villages had a smith, a wheelwright, and a cooper. there were villages which had one or two market days in each week. cattle, sheep, pigs, poultry, calves, and hare were sold there. london was a town on the thames river under the protection of the celtic river god lud: lud's town. it's huts were probably built over the water, as was celtic custom. it was a port for foreign trade. near the town was ludhill. each celtic tribe in england made its own coinage. silver and bronze were first used, and then gold. the metal was put into a round form and then placed between two engraved dies, which were hit. flint workers mined with deer antler picks and ox shoulder blade shovels for flint to grind into axes, spearheads, and arrowheads. mine shafts were up to thirty feet deep and necessitated the use of chalk lamps fueled by animal fat with wicks of moss. the flint was hauled up in baskets. common men and women were now buried in tombs within memorial burial mounds of earth with stone entrances and interior chambers. a man's weapons and shield were buried with him and a woman's spindle and weaving baton, and perhaps beads or pottery with her. at times, mounds of earth would simply be covered over piles of corpses and ashes in urns. in these mass graves, some corpses had spear holes or sword cuts, indicating death by violence. the druid priests, the learned class of the celts, taught the celts to believe in reincarnation of the soul after death of one body into another body. they also threw prized possessions into lakes and rivers as sacrifices to water gods. they placed images of gods and goddesses in shrines, which were sometimes large enough to be temples. they thought of their gods as supernatural magicians. with the ability to grow food and the acquisition of land by conquest by invading groups, the population grew. there were different classes of men. the freemen were eorls [noble freemen] or ceorls [ordinary free farmers]. slaves were not free. freemen had long hair and beards. slaves' hair was shorn from their heads so that they were bald. slaves were chained and often traded. prisoners taken in battle, especially native britons taken by invading groups, became slaves. a slave who was captured or purchased was a "theow". an "esne" was a slave who worked for hire. a "weallas" was a welsh slave. criminals became slaves of the person wronged or of the king. sometimes a father pressed by need sold his children or his wife into bondage. debtors, who increased in number during famine, which occurred regularly, became slaves by giving up the freeman's sword and spear, picking up a slave's mattock [pick ax for the soils], and placing their head within a lord's or lady's hands. they were called witetheows. the original meaning of the word lord was "loaf-giver". children with a slave parent were slaves. the slaves lived in huts around the homes of big landholders, which were made of logs and consisted on one large room or hall. an open hearth was in the middle of the earthen floor of the hall, which was strewn with rushes. there was a hole in the roof to let out the smoke. here the landholder and his men would eat meat, bread, salt, hot spiced ale, and mead while listening to minstrels sing about the heroic deeds of their ancestors. richer men drank wine. there were festivals which lasted several days, in which warriors feasted, drank, gambled, boasted, and slept where they fell. physical strength and endurance in adversity were admired traits. slaves often were used as grain grinders, ploughmen, sowers, haywards, woodwards, shepherds, goatherds, swineherds, oxherds, cowherds, dairymaids, and barnmen. slaves had no legal rights. a lord could kill his slave at will. a wrong done to a slave was regarded as done to his owner. if a person killed another man's slave, he had to compensate him with the slave's purchase price. the slave owner had to answer for the offenses of his slaves against others, as for the mischief done by his cattle. since a slave had no property, he could not be fined for crimes, but was whipped, mutilated, or killed. during famine, acorns, beans, peas, and even bark were ground down to supplement flour when grain stocks grew low. people scoured the hedgerows for herbs, roots, nettles, and wild grasses, which were usually left for the pigs. sometimes people were driven to infanticide or group suicide by jumping together off a cliff or into the water. several large kingdoms came to replace the many small ones. the people were worshipping pagan gods when st. augustine came to england in 596 a.d. to christianize them. king aethelbert of kent [much later a county] and his wife, who had been raised christian on the continent, met him when he arrived. the king gave him land where there were ruins of an old city. augustine used stones from the ruins to build a church which was later called canterbury. he also built the first st. paul's church in london. aethelbert and his men who fought with him and ate and lived in his household [gesiths] became christian. a succession of princesses went out from kent to marry other saxon kings and convert them to christianity. augustine knew how to write, but king aethelbert did not. the king announced his laws at meetings of his people and his eorls would decide the punishments. there was a fine of 120s. for disregarding a command of the king. he and augustine decided to write down some of these laws, which now included the king's new law concerning the church. these laws concern personal injury, killing, theft, burglary, marriage, adultery, and inheritance. the blood feud's private revenge for killing had been replaced by payment of compensation to the dead man's kindred. one paid a man's "wergeld" [worth] to his kindred for causing his wrongful death. the wergeld [wer] of a king was an unpayable amount of about 7000s., of an aetheling [a king-worthy man of the extended royal family] was 1500s., of an eorl, 300s., of a ceorl, 100s., of a laet [agricultural worker in kent, which class was between free and slave], 40-80s., and of a slave nothing. at this time a shilling could buy a cow in kent or a sheep elsewhere. if a ceorl killed an eorl, he paid three times as much as an eorl would have paid as murderer. the penalty for slander was tearing out of the tongue. if an aetheling was guilty of this offense, his tongue was worth five times that of a coerl, so he had to pay proportionately more to ransom it. the crimes of murder, treachery to one's own lord, arson, house breaking, and open theft, were punishable by death and forfeiture of all property. the law "these are the dooms [decrees] which king aethelberht established in the days of augustine 1. [theft of] the property of god and of the church [shall be compensated], twelve fold; a bishop's property, eleven fold; a priest's property, nine fold; a deacon's property, six fold; a cleric's property, three fold; church frith [breach of the peace of the church; right of sanctuary and protection given to those within its precincts], two fold [that of ordinary breach of the public peace]; m....frith [breach of the peace of a meeting place], two fold. 2. if the king calls his leod [his people] to him, and any one there do them evil, [let him compensate with] a twofold bot [damages for the injury], and 50 shillings to the king. 3. if the king drink at any one's home, and any one there do any lyswe [evil deed], let him make twofold bot. 4. if a freeman steal from the king, let him repay nine fold. 5. if a man slay another in the king's tun [enclosed dwelling premises], let him make bot with 50 shillings. 6. if any one slay a freeman, 50 shillings to the king, as drihtin beah [payment to a lord in compensation for killing his freeman]. 7. if the king's ambiht smith [smith or carpenter] or laad rine [man who walks before the king or guide or escort], slay a man, let him pay a half leod geld. 8. [offenses against anyone or anyplace under] the king's mund byrd [protection or patronage], 50 shillings. 9. if a freeman steal from a freeman, let him make threefold bot; and let the king have the wite [fine] and all the chattels [necessary to pay the fine]. (chattels was a variant of "cattle".) 10. if a man lie with the king's maiden [female servant], let him pay a bot of 50 shillings. 11. if she be a grinding slave, let him pay a bot of 25 shillings. the third [class of servant] 12 shillings. 12. let the king's fed esl [woman who serves him food or nurse] be paid for with 20 shillings. 13. if a man slay another in an eorl's tun [premises], let [him] make bot with 12 shillings. 14. if a man lie with an eorl's birele [female cupbearer], let him make bot with 12 shillings. 15. [offenses against a person or place under] a ceorl's mund byrd [protection], 6 shillings. 16. if a man lie with a ceorl's birele [female cupbearer], let him make bot with 6 shillings; with a slave of the second [class], 50 scaetts; with one of the third, 30 scaetts. 17. if any one be the first to invade a man's tun [premises], let him make bot with 6 shillings; let him who follows, with 3 shillings; after, each, a shilling. 18. if a man furnish weapons to another where there is a quarrel, though no injury results, let him make bot with 6 shillings. 19. if a weg reaf [highway robbery] be done [with weapons furnished by another], let him [the man who provided the weapons] make bot with 6 shillings. 20. if the man be slain, let him [the man who provided the weapons] make bot with 20 shillings. 21. if a [free] man slay another, let him make bot with a half leod geld [wergeld for manslaughter] of 100 shillings. 22. if a man slay another, at the open grave let him pay 20 shillings, and pay the whole leod within 40 days. 23. if the slayer departs from the land, let his kindred pay a half leod. 24. if any one bind a freeman, let him make bot with 20 shillings. 25. if any one slay a ceorl's hlaf aeta [loaf or bread eater; domestic or menial servant], let him make bot with 6 shillings. 26. if [anyone] slay a laet of the highest class, let him pay 80 shillings; of the second class, let him pay 60 shillings; of the third class, let him pay 40 shillings. 27. if a freeman commit edor breach [breaking through the fenced enclosure and forcibly entering a ceorl's dwelling], let him make bot with 6 shillings. 28. if any one take property from a dwelling, let him pay a three fold bot. 29. if a freeman goes with hostile intent through an edor [the fence enclosing a dwelling], let him make bot with 4 shillings. 30. if [in so doing] a man slay another, let him pay with his own money, and with any sound property whatever. 31. if a freeman lie with a freeman's wife, let him pay for it with his wer geld, and obtain another wife with his own money, and bring her to the other [man's dwelling]. 32. if any one thrusts through the riht ham scyld [legal means of protecting one's home], let him adequately compensate. 33. if there be feax fang [seizing someone by the hair], let there be 50 sceatts for bot. 34. if there be an exposure of the bone, let bot be made with 3 shillings. 35. if there be an injury to the bone, let bot be made with 4 shillings. 36. if the outer hion [outer membrane covering the brain] be broken, let bot be made with 10 shillings. 37. if it be both [outer and inner membranes covering the brain], let bot be made with 20 shillings. 38. if a shoulder be lamed, let bot be made with 30 shillings. 39. if an ear be struck off, let bot be made with 12 shillings. 40. if the other ear hear not, let bot be made with 25 shillings. 41. if an ear be pierced, let bot be made with 3 shillings. 42. if an ear be mutilated, let bot be made with 6 shillings. 43. if an eye be [struck] out, let bot be made with 50 shillings. 44. if the mouth or an eye be injured, let bot be made with 12 shillings. 45. if the nose be pierced, let bot be made with 9 shillings. 46. if it be one ala, let bot be made with 3 shillings. 47. if both be pierced, let bot be made with 6 shillings. 48. if the nose be otherwise mutilated, for each [cut, let] bot be made with 6 shillings. 49. if it be pierced, let bot be made with 6 shillings. 50. let him who breaks the jaw bone pay for it with 20 shillings. 51. for each of the four front teeth, 6 shillings; for the tooth which stands next to them 4 shillings; for that which stands next to that, 3 shillings; and then afterwards, for each a shilling. 52. if the speech be injured, 12 shillings. if the collar bone be broken, let bot be made with 6 shillings. 53. let him who stabs [another] through an arm, make bot with 6 shillings. if an arm be broken, let him make bot with 6 shillings. 54. if a thumb be struck off, 20 shillings. if a thumb nail be off, let bot be made with 3 shillings. if the shooting [fore] finger be struck off, let bot be made with 8 shillings. if the middle finger be struck off, let bot be made with 4 shillings. if the gold [ring] finger be struck off, let bot be made with 6 shillings. if the little finger be struck off, let bot be made with 11 shillings. 55. for every nail, a shilling. 56. for the smallest disfigurement of the face, 3 shillings; and for the greater, 6 shillings. 57. if any one strike another with his fist on the nose, 3 shillings. 58. if there be a bruise [on the nose], a shilling; if he receive a right hand bruise [from protecting his face with his arm], let him [the striker] pay a shilling. 59. if the bruise [on the arm] be black in a part not covered by the clothes, let bot be made with 30 scaetts. 60. if it be covered by the clothes, let bot for each be made with 20 scaetts. 61. if the belly be wounded, let bot be made with 12 shillings; if it be pierced through, let bot be made with 20 shillings. 62. if any one be gegemed [pregnant], let bot be made with 30 shillings. 63. if any one be cear wund [badly wounded], let bot be made with 3 shillings. 64. if any one destroy [another's] organ of generation [penis], let him pay him with 3 leod gelds: if he pierce it through, let him make bot with 6 shillings; if it be pierced within, let him make bot with 6 shillings. 65. if a thigh be broken, let bot be made with 12 shillings; if the man become halt [lame], then friends must arbitrate. 66. if a rib be broken, let bot be made with 3 shillings. 67. if [the skin of] a thigh be pierced through, for each stab 6 shillings; if [the wound be] above an inch [deep], a shilling; for two inches, 2; above three, 3 shillings. 68. if a sinew be wounded, let bot be made with 3 shillings. 69. if a foot be cut off, let 50 shillings be paid. 70. if a great toe be cut off, let 10 shillings be paid. 71. for each of the other toes, let one half that for the corresponding finger be paid. 72. if the nail of a great toe be cut off, 30 scaetts for bot; for each of the others, make bot with 10 scaetts. 73. if a freewoman loc bore [with long hair] commit any leswe [evil deed], let her make a bot of 30 shillings. 74. let maiden bot [compensation for injury to an unmarried woman] be as that of a freeman. 75. for [breach of] the mund [protection] of a widow of the best class, of an eorl's degree, let the bot be 50 shillings; of the second, 20 shillings; of the third, 12 shillings; of the fourth, 6 shillings. 76. if a man carry off a widow not under his own protection by right, let the mund be twofold. 77. if a man buy a maiden with cattle, let the bargain stand, if it be without fraud; but if there be fraud, let him bring her home again, and let his property be restored to him. 78. if she bear a live child, she shall have half the property, if the husband die first. 79. if she wish to go away with her children, she shall have half the property. 80. if the husband wish to keep them [the children], [she shall have the same portion] as one child. 81. if she bear no child, her paternal kindred shall have the fioh [her money and chattels] and the morgen gyfe [morning gift: a gift made to the bride by her husband on the morning following the consummation of the marriage]. 82. if a man carry off a maiden by force, let him pay 50 shillings to the owner, and afterwards buy [the object of] his will from the owner. 83. if she be betrothed to another man in money [at a bride price], let him [who carried her off] make bot with 20 shillings. 84. if she become gaengang [pregnant], 35 shillings; and 15 shillings to the king. 85. if a man lie with an esne's wife, her husband still living, let him make twofold bot. 86. if one esne slay another unoffending, let him pay for him at his full worth. 87. if an esne's eye and foot be struck out or off, let him be paid for at his full worth. 88. if any one bind another man's esne, let him make bot with 6 shillings. 89. let [compensation for] weg reaf [highway robbery] of a theow [slave] be 3 shillings. 90. if a theow steal, let him make twofold bot [twice the value of the stolen goods]." judicial procedure the king and his freemen would hear and decide cases of wrongful behavior such as breach of the peace. punishment would be given to the offender by the community. there were occasional meetings of "hundreds", which were 100 households, to settle widespread disputes. the chief officer was "hundreder" or "constable". he was responsible for keeping the peace of the hundred. the druid priests decided all disputes of the celts. chapter 2 the times: 600-900 the country was inhabited by anglo-saxons. the french called it "angleterre", which means the angle or end of the earth. it was called "angle land", which later became "england". a community was usually an extended family. its members lived a village in which a stone church was the most prominent building. they lived in one-room huts with walls and roofs made of wood, mud, and straw. hangings covered the cracks in the walls to keep the wind out. smoke from a fire in the middle of the room filtered out of cracks in the roof. grain was ground at home by rotating by hand one stone disk on another stone disk. some villages had a mill powered by the flow of water or by horses. all freeholders had the duty of watch [at night] and ward [during the day], of following the hue and cry to chase an offender, and of taking the oath of peace. these three duties were constant until 1195. farmland surrounded the villages and was farmed by the community as a whole under the direction of a lord. there was silver, copper, iron, tin, gold, and various types of stones from remote lead mines and quarries in the nation. silver pennies replaced the smaller scaetts. freemen paid "scot" and bore "lot" according to their means for local purposes. offa, the strongest of the saxon kings, minted high-quality silver pennies. he traded woolen coats for lava grindstones with emperor charlemagne, who used a silver denarius coin. there were 12 denarii to the solidus and 20 soldi to the pound of silver. these denominations were taken by england as 12 pennies to the shilling and 20 shillings to the pound. the pound sign, an "l" with a hash mark derived from the word libra, which meant weighing scales. everyone in the village went to church on sunday and brought gifts such as grain to the priest. later, contributions in the form of money became customary, and then expected. they were called "tithes" and were spent for church repair, the clergy, and poor and needy laborers. local custom determined the amount. there was also church-scot: a payment to the clergy in lieu of the first fruits of the land. the priest was the chaplain of a landlord and his parish was coextensive with that landlord's holding and could include one to several villages. the priest and other men who helped him, lived in the church building. some churches had lead roofs and iron hinges, latches, and locks on their doors. the land underneath had been given to the church by former kings and persons who wanted the church to say prayers to help their souls go from purgatory to heaven and who also selected the first priest. the priest conducted christianized easter ceremonies in the spring and (christ's mass) ceremonies in winter in place of the pagan yuletide festivities. burning incense took the place of pagan burnt animal offerings, which were accompanied by incense to disguise the odor of burning flesh. holy water replaced haunted wells and streams. christian incantations replaced sorcerer's spells. nuns assisted priests in celebrating mass and administering the sacraments. they alone consecrated new nuns. vestry meetings were community meetings held for church purposes. the people said their prayers in english, and the priest conducted the services in english. a person joined his hands in prayer as if to offer them for binding together in submission. the church baptized babies and officiated or gave blessings at marriage ceremonies. it also said prayers for the dying, gave them funerals, and buried them. there were burial service fees, candle dues, and plough alms. a piece of stone with the dead person's name marked his grave. it was thought that putting the name on the grave would assist identification of that person for being taken to heaven. the church heard the last wish or will of the person dying concerning who he wanted to have his property. the church taught that it was not necessary to bury possessions with the deceased. the church taught boys and girls. every man carried a horn slung on his shoulder as he went about his work so that he could at once send out a warning to his fellow villagers or call them in chasing a thief or other offender. the forests were full of outlaws, so strangers who did not blow a horn to announce themselves were presumed to be fugitive offenders who could be shot on sight. an eorl could call upon the ceorl farmers for about forty days to fight off an invading group. there were several kingdoms, whose boundaries kept changing due to warfare, which was a sin according to the church. they were each governed by a king and witan of wise men who met at a witanegemot, which was usually held three times a year, mostly on great church festivals and at the end of the harvest. the king and witan chose the witan's members of bishops, eorldormen, and thegns [landholding farmers]. the king and hereditary claims played a major part in the selection of the eorldormen, who were the highest military leaders and often of the royal family. they were also chief magistrates of large jurisdictional areas of land. the witan included officers of the king's household and perhaps other of his retinue. there was little distinction then between his gesith, fighting men, guards, household companions, dependents, and servants. the king was sometimes accompanied by his wife and sons at the witanagemot. a king was selected by the witan according to his worthiness, usually from among the royal family, and could be deposed by it. the witan and king decided on laws, taxes, and transfers of land. they made determinations of war and peace and directed the army and the fleet. the king wore a crown or royal helmet. he extended certain protections by the king's peace. he could erect castles and bridges and could provide a special protection to strangers. a king had not only a wergeld to be paid to his family if he were killed, but a "cynebot" of equal amount that would be paid to his kingdom's people. a king's household had a chamberlain for the royal bedchamber, a marshall to oversee the horses and military equipment, a steward as head of household, and a cupbearer. the king had income from fines for breach of his peace; fines and forfeitures from courts dealing with criminal and civil cases; salvage from ship wrecks; treasure trove [assets hidden or buried in times of war]; treasures of the earth such as gold and silver; mines; saltworks; tolls and other dues of markets, ports, and the routes by land and by river generally; heriot from heirs of his special dependents for possession of land (usually in kind, principally in horses and weapons). he also had rights of purveyance [hospitality and maintenance when traveling]. the king had private lands, which he could dispose of by his will. he also had crown lands, which belonged to his office and could not be alienated without consent of the witan. crown lands often included palaces and their appendant farms, and burhs. it was a queen's duty to run the royal estate. also, a queen could possess, manage, and dispose of lands in her name. violent queens waged wars. kingdoms were often allied by marriage between their royal families. there were also royal marriages to royalty on the continent. the houses of the wealthy had ornamented silk hangings on the walls. some had fine white ox horn shaved so thin they were transparent for windows. brightly colored drapery, often purple, and fly nets surrounded their beds, which were covered with the fur of animals. they slept in bed clothes on pillows stuffed with straw. tables plated with silver and gems held silver candlesticks, gold and silver goblets and cups, and lamps of gold, silver, or glass. they used silver mirrors and silver writing pens. there were covered seats, benches, and footstools with the head and feet of animals at their extremities. they ate from a table covered with a cloth. servants brought in food on spits, from which they ate. food was boiled, broiled, or baked. the wealthy ate wheat bread and others ate barley bread. ale made from barley was passed around in a cup. mead made from honey was also drunk. men wore long-sleeved wool and linen garments reaching almost to the knee, around which they wore a belt tied in a knot. men often wore a gold ring on the fourth finger of the right hand. leather shoes were fastened with leather thongs around the ankle. their hair was parted in the middle and combed down each side in waving ringlets. the beard was parted in the middle of the chin, so that it ended in two points. the clergy did not wear beards. great men wore gold-embroidered clothes, gilt buckles and brooches, and drank from drinking horns mounted in silver gilt or in gold. wellto-do women wore brightly colored robes with waist bands, headbands, necklaces, gem bracelets, and rings. their long hair was in ringlets and they put rouge on their cheeks. they had beads, pins, needles, tweezers of bronze, and workboxes of bronze, some highly ornamented. they were often doing needlework. silk was affordable only by the wealthy. most families kept a pig and pork was the primary meat. there were also sheep, goats, cows, deer, hare, and fowl. fowl was obtained by fowlers who trapped them. the inland waters yielded eels, salmon, and trout. in the fall, meat was salted to preserve it for winter meals. there were orchards growing figs, nuts, grapes, almonds, pears, and apples. also produced were beans, lentils, onions, eggs, cheese, and butter. pepper and cinnamon were imported. fishing from the sea yielded herrings, sturgeon, porpoise, oysters, crabs, and other fish. sometimes a whale was driven into an inlet by a group of boats. whale skins were used to make ropes. the roads were not much more than trails. they were often so narrow that two pack horses could hardly pass each other. the pack horses each carried two bales or two baskets slung over their backs, which balanced each other. the soft soil was compacted into a deep ditch which rains, floods, and tides, if near the sea, soon turned into a river. traveling a far distance was unsafe as there were robbers on the roads. traveling strangers were distrusted. it was usual to wash one's feet in a hot tub after traveling and to dry them with a rough wool cloth. there were superstitions about the content of dreams, the events of the moon, and the flights and voices of birds were often seen as signs or omens of future events. herbal mixtures were drunk for sickness and maladies. from the witch hazel plant was made a mild alcoholic astringent, which was probably used to clean cuts and sooth abrasions. in the peaceful latter part of the 600s, theodore, who had been a monk in rome, was appointed archbishop and visited all the island speaking about the right rule of life and ordaining bishops to oversee the priests. each kingdom was split up into dioceses each with one bishop. thereafter, bishops were selected by the king and his witan, usually after consulting the clergy and even the people of the diocese. the bishops came to be the most permanent element of society. they had their sees in villages or rural monasteries. the bishops came to have the same wergeld as an eorldorman: 1200s., which was the price of about 500 oxen. a priest had the wergeld as a landholding farmer [thegn], or 300s. the bishops spoke latin, but the priests of the local parishes spoke english. theodore was the first archbishop whom all the english church obeyed. he taught sacred and secular literature, the books of holy writ, ecclesiastical poetry, astronomy, arithmetic, and sacred music. theodore discouraged slavery by denying christian burial to the kidnapper and forbidding the sale of children over the age of seven. a slave became entitled to two loaves a day and to his holydays. a slave was allowed to buy his or his children's freedom. in 673, theodore started annual national ecclesiastical assemblies, for instance for the witnessing of important actions. the bishops, some abbots, the king, and the eorldormen were usually present. from them the people learned the benefit of common national action. there were two archbishops: one of canterbury in the south and one of york in the north. they governed the bishops and could meet with them to issue canons that would be equally valid all over the land. a bishop's house contained some clerks, priests, monks, and nun and was a retreat for the weary missionary and a school for the young. the bishop had a deacon who acted as a secretary and companion in travel, and sometimes as an interpreter. ink was made from the outer husks of walnuts steeped in vinegar. the learned ecclesiastical life flourished in monastic communities, in which both monks and nuns lived. hilda, a noble's daughter, became the first nun in northumbria and abbess of one of its monasteries. there she taught justice, piety, chastity, peace, and charity. several monks taught there later became bishops. kings and princes often asked her advice. many abbesses came to run monastic communities; they were from royal families. women, especially from royal families, fled to monasteries to obtain shelter from unwanted marriage or to avoid their husbands. kings and eorldormen retired to them. danish vikings made several invasions in the 800s for which a danegeld tax on land was assessed on everyone every ten to twenty years. the amount was determined by the witan and was typically 2s. per hide of land. (a hide was probably the amount of land which could support a family or household for a year or as much land as could be tilled annually by a single plough.) it was stored in a strong box under the king's bed. king alfred the great, who had lived for awhile in rome, unified the country to defeat the invaders. he established fortifications called "burhs", usually on hill tops or other strategic locations on the borders to control the main road and river routes into his realm. the burhs were seminal towns. they were typically walled enclosures with towers and an outer ditch and mound, instead of the hedge or fence enclosure of a tun. inside were several wooden thatched huts and a couple of churches, which were lit by earthen oil lamps. the populace met at burhgemotes. the land area protected by each burh became known as a "shire", which means a share of a larger whole. the shire or local landowners were responsible for repairing the burh fortifications. there were about thirty shires. alfred gathered together fighting men who were at his disposal, which included eorldormen with their hearthbands (retinues of men each of whom had chosen to swear to fight to the death for their eorldorman, and some of whom were of high rank), the king's thegns, shire thegns (local landholding farmers, who were required to bring fighting equipment such as swords, helmets, chain mail, and horses), and ordinary freemen, i.e. ceorls (who carried food, dug fortifications, and sometimes fought). since the king was compelled to call out the whole population to arms, the distinction between the king's thegns from other landholders disappeared. some great lords organized men under them, whom they provisioned. these vassals took a personal oath to their lord "on condition that he keep me as i am willing to deserve, and fulfill all that was agreed on when i became his man, and chose his will as mine." alfred had a small navy of longships with 60 oars to fight the viking longships. alfred divided his army into two parts so that one half of the men were fighting while the other half was at home sowing and harvesting for those fighting. thus, any small-scale independent farming was supplanted by the open-field system, cultivation of common land, more large private estates headed by a lord, and a more stratified society in which the king and important families more powerful and the peasants more curtailed. the witan became mere witnesses. many free coerls of the older days became bonded. the village community tended to become a large private estate headed by a lord. but the lord does not have the power to encroach upon the rights of common that exist within the community. in 886, a treaty between alfred and the vikings divided the country along the war front and made the wergeld of every free farmer, whether english or viking, 200s. men of higher rank were given a wergeld of 4 1/2 marks of pure gold. a mark was probably a viking denomination and a mark of gold was equal to nine marks of silver in later times and probably in this time. the word "earl" replaced the word "eorldormen" and the word "thegn" replaced the word "aetheling" after the danish settlement. the ironed pleats of viking clothing indicated a high status of the wearer. the vikings brought combs and the practice of regular hair-combing to england. king alfred gave land with jurisdictional powers within its boundaries such as the following: "this is the bequest which king alfred make unequivocally to shaftesbury, to the praise of god and st. mary and all the saints of god, for the benefit of my soul, namely a hundred hides as they stand with their produce and their men, and my daughter aethelgifu to the convent along with the inheritance, since she took the veil on account of bad health; and the jurisdiction to the convent, which i myself possessed, namely obstruction and attacks on a man's house and breach of protection. and the estates which i have granted to the foundation are 40 hides at donhead and compton, 20 hides at handley and gussage 10 hides at tarrant, 15 hides at iwerve and 15 hides at fontmell. the witnesses of this are edward my son and archbishop aethelred and bishop ealhferth and bishop aethelhead and earl wulfhere and earl eadwulf and earl cuthred and abbot tunberht and milred my thegn and aethelwulf and osric and brihtulf and cyma. if anyone alters this, he shall have the curse of god and st. mary and all the saints of god forever to all eternity. amen." sons usually succeeded their fathers on the same land as shown by this lifetime lease: "bishop denewulf and the community at winchester lease to alfred for his lifetime 40 hides of land at alresford, in accordance with the lease which bishop tunbriht had granted to his parents and which had run out, on condition that he renders every year at the autumnal equinox three pounds as rent, and church dues, and the work connected with church dues; and when the need arises, his men shall be ready both for harvesting and hunting; and after his death the property shall pass undisputed to st. peter's. these are the signatures of the councilors and of the members of the community who gave their consent, namely ..." alfred invented a graduated candle with spaces indicating one hour of burning, which could be used as a clock. he used a ventilated cow's horn to put around the top of the candle to prevent its blowing out, and then devised a wooden lantern with a horn window. he described the world as like a yolk in the middle of an egg whose shell moves around it. this agreed with the position of ptolemy claudius of alexandria, who showed the curvature of the earth from north to south by observing that the polar star was higher in the north and lower in the south. that it was curved from east to west followed from the observation that two clocks placed one west and one east would record a different time for the same eclipse of the moon. alfred wrote poems on the worthiness of wisdom and knowledge in preference to material pleasures, pride, and fame, in dealing with life's sorrow and strife. his observations on human nature and his proverbs include: 1. as one sows, so will he mow. 2. every man's doom [judgment] returns to his door. 3. he who will not learn while young, will repent of it when old. 4. weal [prosperity] without wisdom is worthless. 5. though a man had 70 acres sown with red gold, and the gold grew like grass, yet he is not a whit the worthier unless he gain friends for himself. 6. gold is but a stone unless a wise man has it. 7. it's hard to row against the sea flood; so it is against misfortune. 8. he who toils in his youth to win wealth, so that he may enjoy ease in his old age, has well bestowed his toil. 9. many a man loses his soul through silver. 10. wealth may pass away, but wisdom will remain, and no man may perish who has it for his comrade. 11. don't choose a wife for her beauty nor for wealth, but study her disposition. 12. many an apple is bright without and bitter within. 13. don't believe the man of many words. 14. with a few words a wise man can compass much. 15. make friends at market, and at church, with poor and with rich. 16. though one man wielded all the world, and all the joy that dwells therein, he could not therewith keep his life. 17. don't chide with a fool. 18. a fool's bolt is soon shot. 19. if you have a child, teach it men's manners while it is little. if you let him have his own will, he will cause you much sorrow when he comes of age. 20. he who spares the rod and lets a young child rule, shall rue it when the child grows old. 21. either drinking or not drinking is, with wisdom, good. 22. be not so mad as to tell your friend all your thoughts. 23. relatives often quarrel together. 24. the barkless dog bites ill. 25. be wise of word and wary of speech, then all shall love you. 26. we may outride, but not outwit, the old man. 27. if you and your friend fall out, then your enemy will know what your friend knew before. 28. don't choose a deceitful man as a friend, for he will do you harm. 29. the false one will betray you when you least expect it. 30. don't choose a scornful false friend, for he will steal your goods and deny the theft. 31. take to yourself a steadfast man who is wise in word and deed; he will prove a true friend in need. to restore education and religion, alfred disseminated the anglosaxon chronicles; the venerable bede's ecclesiastical history of the english nation; the "consolidation of philosophy" by roman philosopher boethius, which related the use of adversity to develop the soul, and described the goodness of god and how the highest happiness comes from spiritual values and the soul, which are eternal, rather than from material or earthly pursuits, which are temporal; and pope gregory's pastoral care, which he had translated into english and was the fundamental book on the duty of a bishop, which included a duty to teach laymen; and orosius' history of the world, which he had translated into english. alfred's advice to pastors was to live as they had been taught from books and to teach this manner of life to others. to be avoided was pride, the mind's deception of seeking glory in the name of doing good works, and the corruption of high office. bede was england's first scholar, first theologian, and first historian. he wrote poetry, theological books, homilies, and textbooks on grammar, rhetoric [public speaking and debating], arithmetic, and astronomy. he adhered to the doctrine that death entered the world by the sin of adam, the first man. he began the practice of dating years from the birth of christ and believed that the earth was round. over the earth was a fiery spherical firmament. above this were the waters of the heavens. above this were the upper heavens, which contained the angels and was tempered with ice. he declared that comets portend downfalls of kingdoms, pestilence, war, winds, or heat. this reflected the church's view that a comet was a ball of fire flung from the right hand of an angry god as a warning to mankind, usually for disbelief. storms were begun by the devil. a famous poem, the oral legend of beowulf, a hero who led his men into adventures and performed great feats and fought monsters and dragons, was put into writing with a christian theme. in it, loyalty to one's lord is a paramount virtue. also available in writing was the story of king arthur's twelve victorious battles against the pagan saxons, authored by nennius. there were professional story tellers attached to great men. others wandered from court to court, receiving gifts for their story telling. men usually told oral legends of their own feats and those of their ancestors after supper. alfred had monasteries rebuilt with learned and moral men heading them. he built a nunnery which was headed by his daughter as prioress. he built a strong wall with four gates around london, which he had taken into his control. he appointed his son-in-law, who was one of his eorldormen, to be alderman [older man] to govern london and to be the shire's earl. a later king built a palace in london, although winchester was still the royal capital town. when the king traveled, he and his retinue were fed by the local people at their expense. after alfred's death, his daughter aethelflared ruled the country for seven years. she had more fortified burhs built and led soldiers to victories. under the royalty were the nobles. an earl headed each shire as representative of the king. the term "earl" came to denote an office instead of a nobleman. he led the array of his shire to do battle if the shire was attacked. he executed all royal commands. an earl received grants of land and could claim hospitality and maintenance for himself, his officers, and his servants. he presided over the shire court. he received one-third of the fines from the profits of justice and collected as well a third of the revenues derived from tolls and duties levied in the boroughs of his shire. the office tended to be hereditary. royal representatives called "reeves" started to assist them. the reeve took security from every person for the maintenance of the public peace. he also tracked cattle thieves, brought suspects to court, gave judgments according to the doom books, and delivered offenders to punishment. under the earls were the thegns. by service to the king, it was possible for a coerl to rise to become a thegn and to be given land by the king. other thegns performed functions of magistrates. a thegn was later identified as a person with five hides of land, a kitchen, a church, a bell house, a judicial place at the burhgemote [a right of magistracy], and an appointment in the king's hall. he was bound to service in war by virtue of his landholding instead of by his relationship to the king. nobility was now a territorial attribute, rather than one of birth. the wergeld of a thegn was 1200s. when that of a ceorl or ordinary freeman was 200s. the wergeld of an earl or bishop was four times that of a thegn: 5800s. the wergeld of a king or archbishop was six times that of a thegn: 7200s. the higher a man's wergeld, the higher was his legal status in the scale of punishment, giving credible evidence, and participation in legal proceedings. the sokemen were freemen who had inherited their own land, chose their own lord, and attended and were subject to their lord's court. that is, their lord has soke [soc] jurisdiction over them. a ceorl typically had a single hide of land. a smallholder rented land of about 30 acres from a landlord, which he paid by doing work on the lord's demesne [household or messuage] land, paying money rent, or paying a food rent such as in eggs or chickens. smallholders made up about two fifths of the population. a cottager had one to five acres of land and depended on others for his living. among these were shepherds, ploughmen, swineherds, and blacksmiths. they also participated in the agricultural work, especially at harvest time. it was possible for a thegn to become an earl, probably by the possession of forty hides. he might even acquire enough land to qualify him for the witan. women could be present at the witanagemot and shiregemote [meeting of the people of the shire]. they could sue and be sued in the courts. they could independently inherit, possess, and dispose of property. a wife's inheritance was her own and under no control of her husband. marriage required the consent of the lady and her friends. the man also had to arrange for the foster lean, that is, remuneration for rearing and support of expected children. he also declared the amount of money or land he would give the lady for her consent, that is, the morgengift, and what he would bequeath her in case of his death. it was given to her on the morning after the wedding night. the family of the bride was paid a "mund" for transferring the rightful protection they possessed over her to the family of the husband. if the husband died and his kindred did not accept the terms sanctioned by law, her kindred could repurchase the rightful protection. if she remarried within a year of his death, she had to forfeit the morgengift and his nearest kin received the lands and possessions she had. the word for man was "waepnedmenn" or weaponed person. a woman was "wifmenn" or wife person, with "wif" being derived from the word for weaving. great men and monasteries had millers, smiths, carpenters, architects, agriculturists, fishermen, weavers, embroiders, dyers, and illuminators. for entertainment, minstrels sang ballads about heroes or bible stories, harpers played, jesters joked, and tumblers threw and caught balls and knives. there was gambling, dice games, and chasing deer with hounds. fraternal guilds were established for mutual advantage and protection. a guild imposed fines for any injury of one member by another member. it assisted in paying any murder fine imposed on a member. it avenged the murder of a member and abided by the consequences. it buried its members and purchased masses for his soul. mercantile guilds in seaports carried out commercial speculations not possible by the capital of only one person. there were some ale houses, probably part of certain dwellings. the law alfred issued a set of laws to cover the whole country, which were drawn from the best laws of each region. there was no real distinction between the concepts of law, morals, and religion. the importance of telling the truth and keeping one's word are expressed by this law: "1. at the first we teach that it is most needful that every man warily keep his oath and his wed. if any one be constrained to either of these wrongfully, either to treason against his lord, or to any unlawful aid; then it is juster to belie than to fulfill. but if he pledge himself to that which is lawful to fulfill, and in that belie himself, let him submissively deliver up his weapon and his goods to the keeping of his friends, and be in prison forty days in a king's tun: let him there suffer whatever the bishop may prescribe to him..." let his kinsmen feed him, if he has no food. if he escapes, let him be held a fugitive and be excommunicate of the church. the word of a bishop and of the king were incontrovertible without an oath. the ten commandments were written down as this law: "the lord spake these words to moses, and thus said: i am the lord thy god. i led thee out of the land of the egyptians, and of their bondage. 1. love thou not other strange gods above me. 2. utter thou not my name idly, for thou shalt not be guiltless towards me if thou utter my name idly. 3. remember that thou hallow the rest day. work for yourselves six days, and on the seventh rest. for in six days, christ wrought the heavens and the earth, the seas, and all creatures that are in them, and rested on the seventh day: and therefore the lord hallowed it. 4. honor thy father and thy mother whom the lord hath given thee, that thou mayst be the longer living on earth. 5. slay thou not. 6. commit thou not adultery. 7. steal thou not. 8. say thou not false witness. 9. covet thou not thy neighbor's goods unjustly. 10. make thou not to thyself golden or silver gods." if any one fights in the king's hall, or draws his weapon, and he be taken; be it in the king's doom, either death, or life, as he may be willing to grant him. if he escape, and be taken again, let him pay for himself according to his wergeld, and make bot for the offense, as well wer as wite, according as he may have wrought. if a man fights before a king's ealdorman in the gemot, let him make bot with wer and wite as it may be right; and before this 120s. to the ealdorman as wite. if he disturbs the folkmote by drawing his weapon, 120s. to the ealdorman as wite. if any of this happens before a king's ealdorman's junior, or a king's priest, 30s. as wite. if any one fights in a ceorlish man's dwelling, let him make bot of 6s. to the ceorl. if he draws his weapon but doesn't fight, let it be half of that. if, however, either of these happens to a man with a wergeld of 600s., let it increase threefold of the ceorlish bot; and if to a man with a wergeld of 1200s., let it increase twofold of the bot of the man with a wergeld of 600s. breach of the king's dwelling [breaking and entering] shall be 120s.; an archbishop's, 90s.; any other bishop's, and an ealdorman's, 60s.;. a 1200s. wergeld man's, 30s.; a 600s. wergeld man's, 15s.; and a ceorl's 5s. if any one plot against the king's life, of himself, or by harboring of exiles, or of his men; let him be liable with his life and in all that he has; or let him prove himself according to his lord's wer. if any one with a band or gang of men slays an unoffending man, let him who acknowledges the deathblow pay wer and wite. if the slain man had a wergeld of 200s, let every one who was of the gang pay 30s. as gangbot. if he had a wergeld of 600s., let every one pay 60s. as gangbot. if he had a wergeld of 1200s., let every one pay 120s. if a gang does this, and afterwards denies it on oath, let them all be accused, and let them then all pay the wer in common; and all, one wite, such as shall belong to the wer. if any one lends his weapon to another so he may kill some one with it, they may join together if they will in the wer. if they will not join together, let him who lent the weapon pay of the wer a third part, and of the wite a third part. with his lord a man may fight free of liability for homicide, if any one attack the lord: thus may the lord fight for his man. likewise, a man may fight with his born kinsman, if a man attack him wrongfully, except against his lord. and a man may fight free of liability for homicide, if he finds another with his lawful wife, within closed doors, or under one covering, or with his lawfully born daughter, or with his lawfully born sister, or with his mother, who was given to his father as his lawful wife. if a man knows his foe is sitting at his home, he may not fight with him before he demands justice of him. if he has such power that he can beset his foe, and besiege him within, let him keep him within for seven days, and not attack him if he will remains within. and, then, after seven days, if he surrenders, and gives up his weapons, let him be kept safe for thirty days, and let notice of him be given to his kinsmen and his friends. but if he does not have sufficient power to besiege him within, let him ride to the ealdorman, and beg aid of him. if he will not aid him, let him ride to the king before he fights. in like manner also, if a man come upon his foe, and he did not know beforehand that he was staying at his home; if he is willing to give up his weapons, let him be kept for thirty days, and let notice of him be given to his friends; if he will not give up his weapons, then he may attack him. if he is willing to surrender, and to give up his weapons, and any one after that attack him, let him pay as well wer as wound, as he may do, and wite, and let him have forfeited his compensation to his kin. every church shall have this peace: if a fugitive flee to one for sanctuary, no one may drag him out for seven days. if he is willing to give up his weapons to his foes, let him stay thirty days, and then let notice of him be given to his kinsmen. if any man confess in church any offenses which had not been before revealed, let him be half forgiven. if a man from one holdgetael wishes to seek a lord in another holdgetael, let him do it with the knowledge of the ealdorman whom he before followed in his shire. if he does it without his knowledge, let him who treats him as his man pay 120s. as wite, one-half to the king in the shire where he before followed and one-half in that into which he comes. if he has done anything wrong where he was before, let him make bot for it who has there received him as his man; and to the king 120s. as wite. "if any one steals so that his wife and children don't know it, he shall pay 60 shillings as wite. but if he steals with the knowledge of all his household, they shall all go into slavery. a boy of ten years may be privy to a theft." "if one who takes a thief, or holds him for the person who took him, lets the thief go, or conceals the theft, he shall pay for the thief according to his wer. if he is an eorldormen, he shall forfeit his shire, unless the king is willing to be merciful to him." if any one steal in a church, let him pay the lawful penalty and the wite, and let the hand be struck off with which he did it. if he will redeem the hand, and that be allowed him, let him pay as may belong to his wer. if a man slanders another, the penalty is no lighter thing than that his tongue be cut out; which must not be redeemed at any cheaper rate than it is estimated at according to his wer. if one deceives an unbetrothed woman and sleep with her, he must pay for her and have her afterwards to wife. but if her father not approve, he should pay money according to her dowry. "if a man seize hold of the breast of a ceorlish woman, let him make bot to her with 5 shillings. if he throw her down and do not lie with her, let him make bot with 10 shillings. if he lie with her, let him make bot with 60 shillings. if another man had before lain with her, then let the bot be half that. ... if this befall a woman more nobly born, let the bot increase according to the wer." "if any one, with libidinous intent, seize a nun either by her raiment or by her breast without her leave, let the bot be twofold, as we have before ordained concerning a laywoman." "if a man commit a rape upon a ceorl's female slave, he must pay bot to the ceorl of 5 shillings and a wite [fine to the king] of 60 shillings. if a male theow rape a female theow, let him make bot with his testicles." for the first dog bite, the owner pays 6 shillings, for the second, 12 shillings, for the third, 30 shillings. an ox which gores someone to death shall be stoned. if one steals or slays another's ox, he must give two oxen for it. the man who has land left to him by his kindred must not give it away from his kindred, if there is a writing or witness that such was forbidden by those men who at first acquired it, and by those who gave it to him; and then let that be declared in the presence of the king and of the bishop, before his kinsmen. judicial procedure cases were held at monthly meetings of the hundred court. the king or one of his reeves, conducted the trial by compurgation. in compurgation, the one complaining, called the "plaintiff", and the one defending, called the "defendant", each told their story and put his hand on the bible and swore "by god this oath is clean and true". a slip or a stammer would mean he lost the case. otherwise, community members would stand up to swear on behalf of the plaintiff or the defendant as to their reputation for veracity. the value of a man's oath was commensurate with his value or wergeld. a man's brothers were usually his compurgators. if these "compurgators" were too few, usually twelve in number, or recited poorly, their party lost. if this process was inconclusive, the parties could bring witnesses to declare such knowledge as they had as neighbors. these witnesses, male and female, swore to particular points determined by the court. if the witnesses failed, the defendant was told to go to church and to take the sacrament only if he or she were innocent. if he or she took the sacrament, he or she was tried by the process of "ordeal", which was administered by the church. in the ordeal by cold water, he was given a drink of holy water and then bound hand and foot and thrown into water. if he floated, he was guilty. if he sank, he was innocent. it was not necessary to drown to be deemed innocent. in the ordeal by hot water, he had to pick up a stone from inside a boiling cauldron. if his hand was healing in three days, he was innocent. if it was festering, he was guilty. a similar ordeal was that of hot iron, in which one had to carry in his hands a hot iron for a certain distance. the results of the ordeal were taken to indicate the will of god. presumably a person convicted of murder, i.e. killing by stealth, or robbery [taking from a person's robe, that is, his person or breaking into his home to steal] would be hung and his possessions confiscated. a bishop's oath was incontrovertible. accused archbishops and bishops could clear themselves with an oath that they were guiltless. lesser ranks could clear themselves with the oaths of three compurgators of their rank or, for more serious offenses, undergo the ordeal of the consecrated morsel. for this, one would swallow a morsel; if he choked on it, he was guilty. any inanimate or animate object or personal chattel which was found by a court to be the immediate cause of death was forfeited as "deodand", for instance, a tree from which a man fell to his death, a beast which killed a man, a sword of a third party not the slayer that was used to kill a man. the deodand was to go to the dead man's kin so they could wreak their vengeance on it, which in turn would cause the dead man to lie in peace. this is a lawsuit regarding rights to feed pigs in a certain woodland: "in the year 825 which had passed since the birth of christ, and in the course of the second indiction, and during the reign of beornwulf, king of mercia, a council meeting was held in the famous place called clofesho, and there the said king beornwulf and his bishops and his earls and all the councilors of this nation were assembled. then there was a very noteworthy suit about wood pasture at sinton, towards the west in scirhylte. the reeves in charge of the pigherds wished to extend the pasture farther, and take in more of the wood than the ancient rights permitted. then the bishop and the advisors of the community said that they would not admit liability for more than had been appointed in aethelbald's day, namely mast for 300 swine, and that the bishop and the community should have two thirds of the wood and of the mast. the archbishop wulfred and all the councilors determined that the bishop and the community might declare on oath that it was so appointed in aethelbald's time and that they were not trying to obtain more, and the bishop immediately gave security to earl eadwulf to furnish the oath before all the councilors, and it was produced in 30 days at the bishop's see at worcester. at that time hama was the reeve in charge of the pigherds at sinton, and he rode until he reached worcester, and watched and observed the oath, as earl eadwulf bade him, but did not challenge it. here are the names and designations of those who were assembled at the council meeting ..." chapter 3 the times: 900-1066 there were many large landholders such as the king, earls, and bishops. earls were noblemen by birth, and often relatives of the king. they were his army commanders and the highest civil officials, each responsible for a shire. a breach of the public peace of an earl would occasion a fine. lower in social status were freemen: sokemen, and then, in decreasing order, villani [villeins], bordarii, and cottarii. the servi were the slaves. probably all who were not slaves were freemen. kings typically granted land in exchange for services of military duties, maintaining fortresses, and repairing bridges. less common services required by landlords include equipping a guard ship and guarding the coast, guarding the lord, military watch, maintaining the deer fence at the king's residence, alms giving, and church dues. since this land was granted in return for service, there were limitations on its heritability and often an heir had to pay a heriot to the landlord to obtain the land. a heriot was originally the armor of a man killed, which went to the king. the heriot of a thegn who had soken came to be about 80s.; of a kings' thegn about four lances, two coats of mail, two swords, and 125s.; of an earl about eight horses, four saddled and four unsaddled, eight lances, four coats of mail, four swords, and 500s. there were several thousand thegns, rich and poor, who held land directly of the king. some thegns had soken or jurisdiction over their own lands and others did not. free farmers who had sought protection from thegns in time of war now took them as their lords. a freeman could chose his lord, following him in war and working his land in peace. all able-bodied freemen were liable to military service in the fyrd [national militia], but not in a lord's private wars. in return, the lord would protect him against encroaching neighbors, back him in the courts of law, and feed him in times of famine. but often, lords raided each other's farmers, who fled into the hills or woods for safety. often a lord's fighting men stayed with him at his large house, but later were given land with inhabitants on it, who became his tenants. the lords were the ruling class and the greatest of them sat in the king's council along with bishops, abbots, and officers of the king's household. the lesser lords were local magnates, who officiated at the shire and hundred courts. staghunting, foxhunting, and hawking were reserved for lords who did not work with their hands. every free born person had the right to hunt other game. there was a great expansion of arable land. some land had been specifically allocated to certain individuals. some was common land, held by communities. if a family came to pay the dues and fines on certain common land, it could become personal to that family and was then known as heirland. most land came to be privately held from community-witnessed allotments or inheritance. bookland was those holdings written down in books. this land was usually land that had been given to the church or monasteries because church clerics could write. so many thegns gave land to the church, usually a hide, that the church held 1/3 of the land of the realm. folkland was that land that was left over after allotments had been made to the freemen and which was not common land. it was public land and a national asset and could be converted to heirland or bookland only by action of the king and witan. it could also be rented by services to the state via charter. a holder of folkland might express a wish, e.g. by testamentary action, for a certain disposition of it, such as an estate for life or lives for a certain individual. but a distinct act by the king and witan was necessary for this wish to take effect. small private transactions of land could be done by "livery of seisin" in the presence of neighbors. all estates in land could be let, lent, or leased by its holders, and was then known as "loenland". ploughs and wagons could be drawn by four or more oxen or horses in sets of two behind each other. oxenshoes and horseshoes prevented lameness due to cracked hooves. horse collars especially fitted for horses, replaced oxen yoke that had been used on horses. the horse collar did not restrict breathing and enabled horses to use the same strength of oxen. also, horses had better endurance and faster speed. a free holder's house was wood, perhaps with a stone foundation, and roofed with thatch or tiles. there was a main room or hall, with bed chambers around it. beyond was the kitchen, perhaps outside under a lean-to. these buildings were surrounded by a bank or stiff hedge. simple people lived in huts made from wood and mud, with one door and no windows. they slept around a wood-burning fire in the middle of the earthen floor. they wore shapeless clothes of goat hair and unprocessed wool from their sheep. they ate rough brown bread, vegetable and grain broth, ale from barley, bacon, beans, milk, cabbage, onion, apples, plums, cherries, and honey for sweetening or mead. vegetables grown in the country included onions, leeks, celery, lettuce, radish, carrots, garlic, shallots, parsnip, dill, chervil, marigold, coriander, and poppy. in the summer, they ate boiled or raw veal and wild fowl such as ducks, geese, or pigeons, and game snared in the forest. poultry was a luxury food, but recognized as therapeutic for invalids, especially in broth form [chicken soup]. venison was highly prized. there were still some wild boar, which were hunted with long spears, a greyhound dog, and hunting horns. they sometimes mated with the domestic pigs which roamed the woodlands. in september, the old and infirm pigs were slaughtered and their sides of bacon smoked in the rafters for about a month. their intestines provided skin for sausages. in the fall, cattle were slaughtered and salted for food during the winter because there was no more pasture for them. however, some cows and breed animals were kept through the winter. for their meals, people used wooden platters, sometimes earthenware plates, drinking horns, drinking cups from ash or alderwood turned on a foot-peddled pole lathe, and bottles made of leather. their bowls, pans, and pitchers were made by the potter's wheel. water could be boiled in pots made of iron, brass, lead, or clay. water could be carried in leather bags because leather working preservative techniques improved so that tanning prevented stretching or decaying. at the back of each hut was a hole in the ground used as a latrine, which flies frequented. moss was used for toilet paper. parasitical worms in the stool were ubiquitous. most of the simple people lived in villages of about 20 homes circling a village green or lining a single winding lane. there were only first names, and these were usually passed down family lines. to grind their grain, the villagers used hand mills with crank and gear, or a communal mill, usually built of oak, driven by power transmitted through a solid oak shaft, banded with iron as reinforcement, to internal gear wheels of elm. almost every village had a watermill. it might be run by water shooting over or flowing under the wheel. clothing for men and women was made from coarse wool, silk, and linen and was usually brown in color. only the wealthy could afford to wear linen or silk. men also wore leather clothing, such as neckpieces, breeches, ankle leathers, shoes, and boots. boots were worn when fighting. they carried knives or axes under metal belts. they could carry items by tying leather pouches onto their belts with their drawstrings. they wore leather gloves for warmth and for heavy working with their hands. people were as tall, strong and healthy as in the late 1900s, not having yet endured the later malnourishment and overcrowding that was its worst in the 1700s and 1800s. their teeth were very healthy. most adults died in their 40s, after becoming arthritic from hard labor. people in their 50s were deemed venerable. boys of twelve were considered old enough to swear an oath of allegiance to the king. girls married in their early teens, often to men significantly older. the lands of the large landholding lords were administered by freemen. they had wheat, barley, oats, and rye fields, orchards, vineyards for wine, and beekeeping areas for honey. on this land lived not only farm laborers, cattle herders, shepherds, goatherds, and pigherds, but craftsmen such as goldsmiths, hawkkeepers, dogkeepers, horsekeepers, huntsmen, foresters, builders, weaponsmiths, embroiders, bronze smiths, blacksmiths, watermill wrights, wheelwrights, wagon wrights, iron nail makers, potters, soap makers (made from wood ashes reacting chemically with fats or oils), tailors, shoemakers, salters (made salt at the "wyches", which later became towns ending with '-wich'), bakers, cooks, and gardeners. most men did carpentry work. master carpenters worked with ax, hammer, and saw to make houses, doors, bridges, milk buckets, washtubs, and trunks. blacksmiths made gates, huge door hinges, locks, latches, bolts, and horseshoes. the lord loaned these people land on which to live for their life, called a "life estate", in return for their services. the loan could continue to their widows or children who took up the craft. mills were usually powered by water. candles were made from beeswax, which exuded a bright and steady light and pleasant smell, or from mutton fat, which had an unpleasant odor. the wheeled plough and iron-bladed plough made the furrows. one man held the plough and another walked with the oxen, coaxing them forward with a stick and shouts. seeds were held in an apron for seeding. farm implements included spades, shovels, rakes, hoes, buckets, barrels, flails, and sieves. plants were pruned to direct their growth and to increase their yield. everyone got together for feasts at key stages of the farming, such as the harvest. easter was the biggest feast. when the lord was in the field, his lady held their estate. there were common lands of these estates as well as of communities. any proposed new settler had to be admitted at the court of this estate. the land of some lords included fishing villages along the coasts. >from the sea were caught herrings, salmon, porpoises, sturgeon, oysters, crabs, mussels, cockles, winkles, plaice, flounder, and lobsters. sometimes whales were driven into an inlet by many boats. river fish included eels, pike, minnows, burbot, trout, and lampreys. they were caught by brushwood weirs, net, bait, hooks, and baskets. oysters were so numerous that they were eaten by the poor. the king's peace extended over the waterways. if mills, fisheries, weirs, or other structures were set up to block them, they were to be destroyed and a penalty paid to the king. other lords had land with iron mining industries. ore was dug from the ground and combined with wood charcoal in a shaft furnace to be smelted into liquid form. wood charcoal was derived from controlled charring of the wood at high temperatures without using oxygen. this burned impurities from it and left a purer carbon, which burned better than wood. the pure iron was extracted from this liquid and formed into bars. to keep the fire hot, the furnaces were frequently placed at windswept crossings of valleys or on the tops of hills. some lords had markets on their land, for which they charged a toll [like a sales tax] for participation. there were about fifty markets in the nation. cattle and slaves (from the word "slav") were the usual medium of exchange. an ox still was worth about 30d. shaking hands was symbolic of an agreement for a sale, which had to be carried out in front of witnesses at the market for any property worth over 20d. the higher the value of the property, the more witnesses were required. witnesses were also required for the exchange of property and to vouch for cattle having being born on the property of a person claiming them. people traveled to markets on deep, sunken roads and narrow bridges kept in repair by certain men who did this work as their service to the king. the king's peace extended to a couple of high roads, i.e. highways, running the length of the country and a couple running its width. salt was used throughout the nation to preserve meat over the winter. inland saltworks had an elaborate and specialized organization. the chief one used saltpans and furnaces to extract salt from natural brine springs. they formed little manufacturing enclaves in the midst of agricultural land, and they were considered to be neither large private estates headed by a lord nor appurtenant to such. they belonged jointly to the king and the local earl, who shared, at a proportion of two to one, the proceeds of the tolls upon the sale of salt and methods of carriage on the ancient salt ways according to cartload, horse load, or man load. sometimes there were investors in a portion of the works who lived quite at distance away. the sales of salt were mostly retail, but some bought to resell. peddlers carried salt to sell from village to village. some smiths traveled for their work, for instance, stonewrights building arches and windows in churches, and lead workers putting lead roofs on churches. an example of a grant of hides of land is: "[god has endowed king edred with england], wherefore he enriches and honors men, both ecclesiastic and lay, who can justly deserve it. the truth of this can be acknowledged by the thegn aelfsige hunlafing through his acquisition of the estate of 5 hides at alwalton for himself and his heirs, free from every burden except the repair of fortifications, the building of bridges and military service; a prudent landowner church dues, burial fees and tithes. [this land] is to be held for all time and granted along with the things both great and small belonging to it." a bishop gave land to a faithful attendant for his life and two other lives as follows: "in 904 a.d., i, bishop werfrith, with the permission and leave of my honorable community in worcester, grant to wulfsige, my reeve, for his loyal efficiency and humble obedience, one hide of land at aston as herred held it, that is, surrounded by a dyke, for three lives and then after three lives the estate shall be given back without any controversy to worcester." at seaports on the coast, goods were loaded onto vessels owned by english merchants to be transported to other english seaports. london was a market town on the north side of the thames river and the primary port and trading center for foreign merchants. streets that probably date from this time include milk, bread, and wood streets, and honey lane. there were open air markets such as billingsgate. there were wooden quays over much of the river front. houses were made of wood, with one sunken floor, or a ground floor with a cellar beneath. some had central stone hearths and earth latrines. there were crude pottery cooking pots, beakers and lamps, wool cloth, a little silk, simple leather shoes, pewter jewelry, looms, and quernstones (for grinding flour). wool, skins, hides, wheat, meal, beer, lead, cheese, salt, and honey were exported. wine (mostly for the church), fish, timber, pitch, pepper, garlic, spices, copper, gems, gold, silk, dyes, oil, brass, sulphur, glass, slaves, and elephant and walrus ivory were imported. goods from the continent were sold at open stalls in certain streets. furs and slaves were traded. there was a royal levy on exports by foreigners merchants. southwark was reachable by a bridge. it contained sleazy docks, prisons, gaming houses, and brothels. guilds in london were first associations of neighbors for the purposes of mutual assistance. they were fraternities of persons by voluntary compact to assist each other in poverty, including their widows or orphans and the portioning of poor maids, and to protect each other from injury. their essential features are and continue to be in the future: 1) oath of initiation, 2) entrance fee in money or in kind and a common fund, 3) annual feast and mass, 4) meetings at least three times yearly for guild business, 5), obligation to attend all funerals of members, to bear the body if need be from a distance, and to provide masses for the dead, 6) the duty of friendly help in cases of sickness, imprisonment, house burning, shipwreck, or robbery, 7) rules for decent behavior at meetings, and 8) provisions for settling disputes without recourse to the law. both the masses and the feast were attended by the women. frequently the guilds also had a religious ceremonial to affirm their bonds of fidelity. they readily became connected with the exercise of trades and with the training of apprentices. they promoted and took on public purposes such as the repairing of roads and bridges, the relief of pilgrims, the maintenance of schools and almshouses, and the periodic performance of pageants and miracle plays telling scriptural history, which could last for several days. the devil often was prominent in miracle plays. many of these london guilds were known by the name of their founding member. there were also frith guilds (peace guilds) and a knights' guild. the frith guild's main object was to enforce the king's laws, especially the prevalent problem of theft. they were especially established by bishops and reeves. members met monthly and contributed about 4d. to a common fund, which paid a compensation for items stolen. they each paid 1s. towards the pursuit of the thief. the members were grouped in tens. members with horses were to track the thief. members without horses worked in the place of the absent horse owners until their return. when caught, the thief was tried and executed. overwhelming force was used if his kindred tried to protect him. his property was used to compensate the victim for his loss and then divided between the thief's wife, if she was innocent, the king, and the guild. owners of slaves paid into a fund to give one half compensation to those who lost slaves by theft or escape, and recaptured slaves were to be stoned to death or hanged. the members of the peace guild also feasted and drank together. when one died, the others each sang a song or paid for the singing of fifty psalms for his soul and gave a loaf. the knights' guild was composed of thirteen military persons to whom king edgar granted certain waste land in the east of london, toward aldgate, and also portsoken, which ran outside the eastern wall of the city to the thames, for prescribed services performed, probably defense of the vulnerable east side of the city. this concession was confirmed by king edward the confessor in a charter at the suit of certain citizens of london, the successors of these knights. edward granted them sac and soke [cause and suit] jurisdiction over their men. edward the confessor made these rules for london: 1. be it known that within the space of three miles from all parts outside of the city a man ought not to hold or hinder another, and also should not do business with him if he wish to come to the city under its peace. but when he arrives in the city, then let the market be the same to the rich man as to the poor. 2. be it also known that a man who is from the court of the king or the barons ought not to lodge in the house of any citizen of london for three nights, either by privilege or by custom, except by consent of the host. for if he force the host to lodge him in his house and there be killed by the host, let the host choose six from his relatives and let him as the seventh swear that he killed him for the said cause. and thus he will remain quit of the murder of the deceased towards the king and relatives and lords of the deceased. 3. and after he has entered the city, let a foreign merchant be lodged wherever it please him. but if he bring dyed cloth, let him see to it that he does not sell his merchandise at retail, but that he sell not less than a dozen pieces at a time. and if he bring pepper, or cumin, or ginger, or alum, or brasil wood, or resin, or incense, let him sell not less than fifteen pounds at a time. but if he bring belts, let him sell not less than a thousand at a time. and if he bring cloths of silk, or wool or linen, let him see that he cut them not, but sell them whole. but if he bring wax, let him sell not less than one quartanum. also a foreign merchant may not buy dyed cloth, nor make the dye in the city, nor do any work which belongs by right to the citizens. 4. also no foreign merchant with his partner may set up any market within the city for reselling goods in the city, nor may he approach a citizen for making a bargain, nor may he stop longer in the city. every week in london there was a folkmote at st. paul's churchyard, where majority decision was a tradition. by 1032, it had lost much of its power to the husting [household assembly in danish] court. the folkmote then had responsibility for order and was the sole authority for proclaiming outlaws. it met three times a year at st. paul's churchyard and there acclaimed the sheriff and justiciar, or if the king had chosen his officer, heard who was chosen and listened to his charge. it also yearly arranged the watch and dealt with risks of fire. it was divided into wards, each governed by an alderman who presided over the wardmote, and represented his ward at the folkmote. each guild became a ward. the chief alderman was the portreeve. london paid one-eighth of all the taxes of england. later in the towns, merchant guilds grew out of charity associations whose members were bound by oath to each other and got together for a guild feast every month. some traders of these merchant guilds became so prosperous that they became landholders. many market places were dominated by a merchant guild, which had a monopoly of the local trade. in the great mercantile towns all the land and houses would be held by merchants and their dependents, all freeholders were connected with a trade, and everyone who had a claim on public office or magistry would be a member of the guild. the merchant guild could admit into their guild country villeins, who became freemen if unclaimed by their lords for a year and a day. every merchant who had made three long voyages on his own behalf and at his own cost ranked as a thegn. there were also some craft guilds composed of handicraftsmen or artisans. escaped bonded agricultural workers, poor people, and traders without land migrated to towns to live, but were not citizens. towns were largely self-sufficient, but salt and iron came from a distance. the king's established in every shire at least one town with a market place where purchases would be witnessed and a mint where reliable money was coined by a moneyer, who put his name on his coins. there were eight moneyers in london. coins were issued to be of value for only a couple of years. then one had to exchange them for newly issued ones at a rate of about 10 old for 8 or 9 new. the difference constituted a tax. roughly 10% of the people lived in towns. some took surnames such as tanner, weaver, or carpenter. some had affectionate or derisive nicknames such as clear-hand, fresh friend, soft bread, foul beard, money taker, or penny purse. craftsmen in the 1000s included goldsmiths, embroiderers, illuminators of manuscripts, and armorers. edward the confessor, named such for his piety, was a king of 24 years who was widely respected for his intelligence, resourcefulness, good judgment, and wisdom. his educated queen edith, whom he relied on for advice and cheerful courage, was a stabilizing influence on him. they were served by a number of thegns, who had duties in the household, which was composed of the hall, the courtyard, and the bedchamber. they were important men thegns by rank. they were landholders, often in several areas, and held leading positions in the shires. they were also priests and clerics, who maintained the religious services and performed tasks for which literacy was necessary. edward was the first king to have a "chancellor". he kept a royal seal and was the chief royal chaplain. he did all the secretarial work of the household and court, drew up and sealed the royal writs, conducted the king's correspondence, and kept all the royal accounts. the word "chancellor" signified a screen behind which the secretarial work of the household was done. he had the special duty of securing and administering the royal revenue from vacant benefices. the most important royal officers were the chamberlains, who took care of the royal bedchamber and adjoining wardrobe used for dressing and storage of valuables, and the priests. these royal officers had at first been responsible only for domestic duties, but gradually came to assume public administrative tasks. edward wanted to avoid the pressures and dangers of living in the rich and powerful city of london. so he rebuilt a monastic church, an abbey, and a palace at westminster about two miles upstream. he started the growth of westminster as a center of royal and political power; kings' councils met there. royal coronations took place at the abbey. since edward traveled a lot, he established a storehouse-treasury at winchester to supplement his traveling wardrobe. at this time, spanish stallions were imported to improve english horses. london came to have the largest and best trained army in england. the court invited many of the greatest magnates and prelates [highest ecclesiastical officials, such as bishops] of the land to the great ecclesiastical festivals, when the king held more solemn courts and feasted with his vassals for several days. these included all the great earls, the majority of bishops, some abbots, and a number of thegns and clerics. edward had a witan of wise men to advise him, but sometimes the king would speak in the hall after dinner and listen to what comments were made from the mead-benches. as the court moved about the country, many men came to pay their respects and attend to local business. edward started the practice of king's touching people to cure them of scrofula, a disease which affected the glands, especially in the head and neck. it was done in the context of a religious ceremony. the main governmental activities were: war, collection of revenue, religious education, and administration of justice. for war, the shires had to provide a certain number of men and the ports quotas of ships with crews. the king was the patron of the english church. he gave the church peace and protection. he presided over church councils and appointed bishops. as for the administration of justice, the public courts were almost all under members of edward's court, bishops, earls, and reeves. edward's mind was often troubled and disturbed by the threat that law and justice would be overthrown, by the pervasiveness of disputes and discord, by the raging of wicked presumption, by money interfering with right and justice, and by avarice kindling all of these. he saw it as his duty to courageously oppose the wicked by taking good men as models, by enriching the churches of god, by relieving those oppressed by wicked judges, and by judging equitably between the powerful and the humble. he was so greatly revered that a comet was thought to accompany his death. the king established the office of the chancery to draft documents and keep records. it created the writ, which was a small piece of parchment [sheep skin] addressed to a royal official or dependent commanding him to perform some task for the king. by the 1000s a.d., the writ contained a seal: a lump of wax with the impress of the great seal of england which hung from the bottom of the document. writing was done with a sharpened goose-wing quill. ink was obtained from mixing fluid from the galls made by wasps for their eggs on oak trees, rainwater or vinegar, gum arabic, and iron salts for color. a king's grant of land entailed two documents: a charter giving boundaries and conditions and a writ, usually addressed to the shire court, listing the judicial and financial privileges conveyed with the land. these were usually sac and soke [possession of jurisdiction of a private court of a noble or institution to execute the laws and administer justice over inhabitants and tenants of the estate], toll [right to have a market and to collect a payment on the sale of cattle and other property on the estate] and team [probably the right to hold a court to determine the honesty of a man accused of illegal possession of cattle or of buying stolen cattle by inquiring of the alleged seller or a warrantor, even if an outsider], and infangenetheof [the authority to hang and take the chattels of a thief caught on the estate]. the town of coventry consisted of a large monastery estate and a large private estate headed by a lord. the monastery was granted by edward the confessor full freedom and these jurisdictions: sac and soke, toll and team, hamsocne [the authority to fine a person for breaking into and making entry by force into the dwelling of another], forestall [the authority to fine a person for robbing others on the road], bloodwite [the authority to impose a forfeiture for assault involving bloodshed], fightwite [the authority to fine for fighting], weordwite [the authority to fine for manslaughter, but not for willful murder], and mundbryce [the authority to fine for any breach of the peace, such as trespass on lands]. every man was expected to have a lord to whom he gave fealty. he swore by this fealty oath: "by the lord, before whom this relic is holy, i will be to -----faithful and true, and love all that he loves, and shun all that he shuns, according to god's law, and according to the world's principle, and never, by will nor by force, by word nor by work, do ought of what is loathful to him; on condition that he keep me as i am willing to deserve, and all that fulfill that our agreement was, when i to him submitted and chose his will." if a man was homeless or lordless, his brothers were expected to find him such, e.g. in the folkmote. otherwise, he as to be treated as a fugitive, and could be slain as for a thief, and anyone who had harbored him would pay a penalty. brothers were also expected to protect their minor kinsmen. marriages were determined by men asking women to marry them. if a woman said yes, he paid a sum to her kin for her "mund" [jurisdiction or protection over her] and gave his oath to them to maintain and support the woman and any children born. as security for this oath, he gave a valuable object or "wed". the couple were then betrothed. marriage ceremonies were performed by priests in churches. the groom had to bring friends to his wedding as sureties to guarantee his oath to maintain and support his wife and children. those who swore to take care of the children were called their "godfathers". the marriage was written into church records. after witnessing the wedding, friends ate the great loaf, or first bread made by the bride. this was the forerunner of the wedding cake. they drank special ale, the "bride ale" (from hence the work "bridal"), to the health of the couple. women could own land, houses, and furniture and other property. they could even make wills that disinherited their sons. this marriage agreement with an archbishop's sister provides her with land, money, and horsemen: "here in this document is stated the agreement which wulfric and the archbishop made when he obtained the archbishop's sister as his wife, namely he promised her the estates at orleton and ribbesford for her lifetime, and promised her that he would obtain the estate at knightwick for her for three lives from the community at winchcombe, and gave her the estate at alton to grant and bestow upon whomsoever she pleased during her lifetime or at her death, as she preferred, and promised her 50 mancuses of gold and 30 men and 30 horses. the witnesses that this agreement was made as stated were archbishop wulfstan and earl leofwine and bishop aethelstan and abbot aelfweard and the monk brihtheah and many good men in addition to them, both ecclesiastics and laymen. there are two copies of this agreement, one in the possession of the archbishop at worcester and the other in the possession of bishop aethelstan at hereford." this marriage agreement provided the wife with money, land, farm animals and farm laborers; it also names sureties, the survivor of whom would receive all this property: "here is declared in this document the agreement which godwine made with brihtric when he wooed his daughter. in the first place he gave her a pound's weight of gold, to induce her to accept his suit, and he granted her the estate at street with all that belongs to it, and 150 acres at burmarsh and in addition 30 oxen and 20 cows and 10 horses and 10 slaves. this agreement was made at kingston before king cnut, with the cognizance of archbishop lyfing and the community at christchurch, and abbot aelfmaer and the community at st. augustine's, and the sheriff aethelwine and sired the old and godwine, wulfheah's son, and aelfsige cild and eadmaer of burham and godwine, wulfstan's son, and carl, the king's cniht. and when the maiden was brought from brightling aelfgar, sired's son, and frerth, the priest of forlstone, and the priests leofwine and wulfsige from dover, and edred, eadhelm's son, and leofwine, waerhelm's son, and cenwold rust and leofwine, son of godwine of horton, and leofwine the red and godwine, eadgifu's son, and leofsunu his brother acted as security for all this. and whichever of them lives the longer shall succeed to all the property both in land and everything else which i have given them. every trustworthy man in kent and sussex, whether thegn or commoner, is cognizant of these terms. there are three of these documents; one is at christchurch, another at st. augustine's, and brihtric himself has the third." nuns and monks lived in segregated nunneries and monasteries on church land and grew their own food. the local bishop usually was also an abbot of a monastery. the priests and nuns wore long robes with loose belts and did not carry weapons. their life was ordered by the ringing of the bell to start certain activities, such as prayer; meals; meetings; work in the fields, gardens, or workshops; and copying and illuminating books. they chanted to pay homage and to communicate with god or his saints. they taught justice, piety, chastity, peace, and charity; and cared for the sick. caring for the sick entailed mostly praying to god as it was thought that only god could cure. they bathed a few times a year. they got their drinking water from upstream of where they had located their latrines over running water. the large monasteries had libraries, dormitories, guesthouses, kitchens, butteries to store wine, bakehouses, breweries, dairies, granaries, barns, fishponds, orchards, vineyards, gardens, workshops, laundries, lavatories with long stone or marble washing troughs, and towels. slavery was diminished by the church by excommunication for the sale of a child over seven. the clergy taught that manumission of slaves was good for the soul of the dead, so it became frequent in wills. the clergy were to abstain from red meat and wine and were to be celibate. but there were periods of laxity. punishment was by the cane or scourge. the archbishop of canterbury began anointing new kings at the time of coronation to emphasize that the king was ruler by the grace of god. as god's minister, the king could only do right. from 973, the new king swore to protect the christian church, to prevent inequities to all subjects, and to render good justice, which became a standard oath. there was a celestial hierarchy, with heavenly hosts in specific places. the heavenly bodies revolved in circles around the earthly world on crystal spheres of their own, which were serene, harmonious, and eternal. this contrasted with the change, death, and decay that occurred in the earthly world. also in this world, aristotle's four elements of earth, air, fire, and water sought their natural places, e.g. bubbles of air rising through water. the planets were called wanderers because their motion did not fit the circular scheme. god intervened in daily life, especially if worshipped. saints such as bede and hilda performed miracles, especially ones of curing. their spirits could be contacted through their relics, which rested at the altars of churches. when someone was said to have the devil in him, people took it quite literally. a real jack frost nipped noses and fingers and made the ground too hard to work. little people, elves, trolls, and fairies inhabited the fears and imaginings of people. the forest was the mysterious home of spirits. people prayed to god to help them in their troubles and from the work of the devil. since natural causes of events were unknown, people attributed events to wills like their own. illness was thought to be caused by demons. people hung charms around their neck for cure and treatments of magic and herbs were given. some had hallucinogenic effects, which were probably useful for pain. for instance, the remedy for "mental vacancy and folly" was a drink of "fennel, agrimony, cockle, and marche". bloodletting by leeches and cautery were used for most maladies, which were thought to be caused by imbalance of the four bodily humors: sanguine, phlegmatic, choleric, and melancholic. these four humors reflected the four basic elements air, water, fire, and earth. blood was hot and moist like air; phlegm was cold and moist like water; choler or yellow bile was hot and dry like fire; and melancholy or black bile was cold and dry like earth. bede had explained that when blood predominates, it makes people joyful, glad, sociable, laughing, and talking a great deal. phlegm renders them slow, sleepy, and forgetful. red cholic makes them thin, though eating much, swift, bold, wrathful, and agile. black cholic makes them serious of settled disposition, even sad. to relieve brain pressure and/or maybe to exorcise evil spirits, holes were made in skulls by a drill with a metal tip that was caused to turn back and forth by a strap wrapped around a wooden handle. a king's daughter edith inspired a cult of holy wells, whose waters were thought to alleviate eye conditions. warmth and rest were also used for illness. agrimony boiled in milk was thought to relieve impotence in men. it was known that the liver casted out impurities in the blood. the stages of fetal growth were known. the soul was not thought to enter a fetus until after the third month, so presumably abortions within three months were allowable. the days of the week were sun day, moon day, tiw's day (viking god of war), woden's day (viking god of victory, master magician, calmer of storms, and raiser of the dead), thor's day (viking god of thunder), frig's day (viking goddess of fertility and growing things), and saturn's day (roman god). special days of the year were celebrated: christmas, the birthday of jesus christ; the twelve days of yuletide (a viking tradition) when candles were lit and houses decorated with evergreen and there were festivities around the burning of the biggest log available; plough monday for resumption of work after yuletide; february 14th with a feast celebrating saint valentinus, a roman bishop martyr who had married young lovers in secret when marriage was forbidden to encourage men to fight in war; new year's day on march 25th when seed was sown and people banged on drums and blew horns to banish spirits who destroy crops with disease; easter, the day of the resurrection of jesus christ; whitsunday, celebrating the descent of the holy spirit on the apostles of jesus and named for the white worn by baptismal candidates; may day when flowers and greenery was gathered from the woods to decorate houses and churches, morris dancers leapt through their villages with bells, hobby horses, and waving scarves, and people danced around a may pole holding colorful ribbons tied at the top so they became entwined around the pole; lammas on august 1st, when the first bread baked from the wheat harvest was consecrated; harvest home when the last harvest load was brought home while an effigy of a goddess was carried with reapers singing and piping behind, and october 31st, the eve of the christian designated all hallow day, which then became known as all hallow even, or halloween. people dressed as demons, hobgoblins, and witches to keep spirits away from possessing them. trick or treating began with christian beggars asking for "soul cake" biscuits in return for praying for dead relatives. ticktacktoe and backgammon were played. there were riddles such as: i am a strange creature, for i satisfy women ... i grow very tall, erect in a bed. i'm hairy underneath. from time to time a beautiful girl, the brave daughter of some fellow dares to hold me grips my reddish skin, robs me of my head and puts me in the pantry. at once that girl with plaited hair who has confined me remembers our meeting. her eye moistens. what am i? an onion. a man came walking where he knew she stood in a corner, stepped forwards; the bold fellow plucked up his own skirt by hand, stuck something stiff beneath her belt as she stood, worked his will. they both wiggled. the man hurried; his trusty helper plied a handy task, but tired at length, less strong than she, weary of the work. thick beneath her belt swelled the thing good men praise with their hearts and purses. what am i? a milk churn. the languages of invaders had produced a hybrid language that was roughly understood throughout the country. the existence of europe, africa, asia, and india were known. jerusalem was thought to be at the center of the world. there was an annual tax of a penny on every hearth, peter's pence, to be collected and sent to the pope in rome. ecclesiastical benefices were to pay churchscot, a payment in lieu of first fruits of the land, to the pope. the law the king and witan deliberated on the making of new laws, both secular and spiritual, at the regularly held witanagemot. there was a standard legal requirement of holding every man accountable, though expressed in different ways, such as the following three: every freeman who does not hold land must find a lord to answer for him. the act of homage was symbolized by holding his hands together between those of his lord. every lord shall be personally responsible as surety for the men of his household. [this included female lords.] (king athelstan) "and every man shall see that he has a surety, and this surety shall bring and keep him to [the performance of] every lawful duty. 1. and if anyone does wrong and escapes, his surety shall incur what the other should have incurred. 2. if the case be that of a thief and his surety can lay hold of him within twelve months, he shall deliver him up to justice, and what he has paid shall be returned to him." (king edgar) every freeman who holds land, except lords with considerable landed property, must be in a local tithing, usually ten to twelve men, in which they serve as personal sureties for each other's peaceful behavior. if one of the ten landholders in a tithing is accused of an offense, the others have to produce him in court or pay a fine plus pay the injured party for the offense, unless they could prove that they had no complicity in it. if the man is found guilty but can not pay, his tithing must pay his fine. the chief officer is the "tithing man" or "capital pledge". there were probably ten tithings in a hundred. (king edward the confessor). everyone was to take an oath not to steal, which one's surety would compel one to keep. no one may receive another lord's man without the permission of this lord and only if the man is blameless towards every hand. the penalty is the bot for disobedience. no lord was to dismiss any of his men who had been accused, until he had made compensation and done right. "no woman or maiden shall be forced to marry a man she dislikes or given for money." "violence to a widow or maiden is punishable by payment of one's wergeld." no man may have more wives than one. no man may marry among his own kin within six degrees of relationship or with the widow of a man as nearly related to him as that, or with a near relative of his first wife's, or his godmother, or a divorced woman. incest is punishable by payment of one's wergeld or a fine or forfeiture of all his possessions. grounds for divorce were mutual consent or adultery or desertion. adultery was prohibited for men as well as for women. the penalty was payment of a bot or denial of burial in consecrated ground. a law of canute provided that if a wife was guilty of adultery, she forfeited all her property to her husband and her nose and ears, but this law did not survive him. laymen may marry a second time, and a young widow may again take a husband, but they will not receive a blessing and must do penance for their incontinence. prostitutes were to be driven out of the land or destroyed in the land, unless they cease from their wickedness and make amends to the utmost of their ability. neither husband nor wife could sell family property without the other's consent. if there was a marriage agreement, it determined the wife's "dower", which would be hers upon his death. otherwise, if a man who held his land in socage [owned it freely and not subject to a larger landholder] died before his wife, she got half this property. if there were minor children, she received all this property. inheritance of land to adult children was by the custom of the land held. in some places, the custom was for the oldest son to take it and in other places, the custom was for the youngest son to take it. usually, the sons each took an equal portion by partition, but the eldest son had the right to buy out the others as to the chief messuage [manor; dwelling and supporting land and buildings] as long as he compensated them with property of equal value. if there were no legitimate sons, then each daughter took an equal share when she married. in london, one-third of the personal property of a decedent went to his wife, one-third went to his children in equal shares, and one-third he could bequeath as he wished. "if a man dies intestate [without a will], his lord shall have heriot [horses, weapons, shields, and helmets] of his property according to the deceased's rank and [the rest of] the property shall be divided among his wife, children, and near kinsmen." a man could justifiably kill an adulterer in the act with the man's wife, daughter, sister, or mother. in kent, a lord could fine any bondswoman of his who had become pregnant without his permission [childwyte]. a man could kill in defense of his own life, the life of his kinsmen, his lord, or a man whose lord he was. the offender was "caught red-handed" if the blood of his victim was still on him. self-help was available for hamsocne [breaking into a man's house to assault him]. murder is punished by death as follows: "if any man break the king's peace given by hand or seal, so that he slay the man to whom the peace was given, both his life and lands shall be in the king's power if he be taken, and if he cannot be taken he shall be held an outlaw by all, and if anyone shall be able to slay him he shall have his spoils by law." the king's peace usually extended to important designated individuals, churches, assemblies, those traveling to courts or assemblies, and particular times and places. often a king would extend his peace to fugitives from violent feuds if they asked the king, earls, and bishops for time to pay compensation for their misdeeds. from this came the practice of giving a portion of the "profits of justice" to such men who tried the fugitive. the king's peace came to be extended to those most vulnerable to violence: foreigners, strangers, and kinless persons. "if anyone by force break or enter any man's court or house to slay or wound or assault a man, he shall pay 100s. to the king as fine." "if anyone slay a man within his court or his house, himself and all his substance are at the king's will, save the dower of his wife if he have endowed her." if a person fights and wounds anyone, he is liable for his wer. if he fells a man to death, he is then an outlaw and is to be seized by raising the hue and cry. and if anyone kills him for resisting god's law or the king's, there will be no compensation for his death. a man could kill a thief over twelve years in the act of carrying off his property over 8d., e.g. the thief hand-habbende [a thief found with the stolen goods in his hand] or the thief back-berend [a thief found carrying stolen goods on his back]. cattle theft could be dealt with only by speedy pursuit. a person who had involuntarily lost possession of cattle is to at once raise the hue and cry. he was to inform the hundredman, who then called the tithingmen. all these neighbors had to then follow the trail of the cow to its taker, or pay 30d. to the hundred for the first offense, and 60d. for the second offense, half to the hundred and half to the lord, and half a pound [10s.] for the third offense, and forfeiture of all his property and declared outlaw for the fourth offense. if the hundred pursued a track into another hundred, notice was to be given to that hundredman. if he did not go with them, he had to pay 30s. to the king. if a thief was brought into prison, he was to be released after 40 days if he paid his fine of 120s. his kindred could become his sureties, to pay according to his wer if he stole again. if a thief forfeited his freedom and gave himself up, but his kindred forsook him, and he does not know of anyone who will make bot for him; let him then do theow-work, and let the wer abate for the kindred. measures and weights of goods for sale shall be correct. every man shall have a warrantor to his market transactions and no one shall buy and sell except in a market town; but he shall have the witness of the portreeve or of other men of credit, who can be trusted. moneyers accused of minting money outside a designated market were to go to the ordeal of the hot iron with the hand that was accused of doing the fraud. if he was found guilty, his hand that did the offense was to be struck off and be set up on the moneysmithy. no marketing, business, or hunting may be done on sundays. no one may bind a freeman, shave his head in derision, or shave off his beard. shaving was a sign of enslavement, which could be incurred by not paying one's fines for offenses committed. no clergy may gamble or participate in games of chance. the laws for london were: "1. the gates called aldersgate and cripplegate were in charge of guards. 2. if a small ship came to billingsgate, one halfpenny was paid as toll; if a larger ship with sails, one penny was paid. 1) if a hulk or merchantman arrives and lies there, four pence is paid as toll. 2) from a ship with a cargo of planks, one plank is given as toll. 3) on three days of the week toll for cloth [is paid] on sunday and tuesday and thursday. 4) a merchant who came to the bridge with a boat containing fish paid one halfpenny as toll, and for a larger ship one penny." 5 8) foreigners with wine or blubber fish or other goods and their tolls. foreigners were allowed to buy wool, melted sheep fat [tallow], and three live pigs for their ships. "3. if the town reeve or the village reeve or any other official accuses anyone of having withheld toll, and the man replies that he has kept back no toll which it was his legal duty to pay, he shall swear to this with six others and shall be quit of the charge. 1) if he declares that he has paid toll, he shall produce the man to whom he paid it, and shall be quit of the charge. 2) if, however, he cannot produce the man to whom he paid it, he shall pay the actual toll and as much again and five pounds to the king. 3) if he vouches the taxgatherer to warranty [asserting] that he paid toll to him, and the latter denies it, he shall clear himself by the ordeal and by no other means of proof. 4. and we [the king and his counselors] have decreed that a man who, within the town, makes forcible entry into another man's house without permission and commits a breach of the peace of the worst kind ... and he who assaults an innocent person on the king's highway, if he is slain, shall lie in an unhonored grave. 1) if, before demanding justice, he has recourse to violence, but does not lose his life thereby, he shall pay five pounds for breach of the king's peace. 2) if he values the goodwill of the town itself, he shall pay us thirty shillings as compensation, if the king will grant us this concession." 5. no base coin or coin defective in quality or weight, foreign or english, may be used by a foreigner or an englishman. (in 956, a person found guilty of illicit coining was punished by loss of a hand.) judicial procedure there were courts for different geographical communities. the arrangement of the whole kingdom into shires was completed by 975 after being united under king edgar. a shire was a larger area of land, headed by an earl. a shire reeve or "sheriff" represented the royal interests in the shires and in the shire courts. this officer came to be selected by the king and earl of the shire to be a judicial and financial deputy of the earl and to execute the law. the office of sheriff, which was not hereditary, was also responsible for the administration of royal lands and royal accounts. the sheriff summoned the freemen holding land in the shire, four men selected by each community or township, and all public officers to meet twice a year at their "shiremote". actually only the great lords the bishops, earls, and thegns attended. the shire court was primarily concerned with issues of the larger landholders. here the freemen interpreted the customary law of the locality. the earl declared the secular law and the bishop declared the spiritual law. they also declared the sentence of the judges. the earl usually took a third of the profits, such as fines and forfeits, of the shire court, and the bishop took a share. in time, the earls each came to supervise several shires and the sheriff became head of the shire and assumed the earl's duties there, such as heading the county fyrd. the shire court also heard cases which had been refused justice at the hundredmote and cases of keeping the peace of the shire. the hundred was a division of the shire, having come to refer to a geographical area rather than a number of households. the monthly hundredmote could be attended by any freeman holding land (or a lord's steward), but was usually attended only by reeve, thegns, parish priest, and four representatives selected by each agrarian community or village usually villeins. here transfers of land were witnessed. a reeve, sometimes the sheriff, presided over local criminal and peace and order issues ["leet jurisdiction", which derived from sac and soc jurisdiction] and civil cases at the hundred court. all residents were expected to attend the leet court. the sheriff usually held each hundred court in turn. the suitors to these courts were the same as those of the shire courts. they were the judges who declared the law and ordered the form of proof, such as compurgatory oath and ordeal. they were customarily thegns, often twelve in number. they, as well as the king and the earl, received part of the profits of justice. summary procedure was followed when a criminal was caught in the act or seized after a hue and cry. every freeman over age twelve had to be in a hundred and had to follow the hue and cry. "no one shall make distraint [seizure of personal property out of the possession of an alleged wrongdoer into the custody of the party injured, to procure a satisfaction for a wrong committed] of property until he has appealed for justice in the hundred court and shire court". in 997, king ethelred in a law code ordered the sheriff and twelve leading magnates of each shire to swear to accuse no innocent man, nor conceal any guilty one. this was the germ of the later assize, and later still the jury. the integrity of the judicial system was protected by certain penalties: for swearing a false oath, bot as determined by a cleric who has heard his confession, or, if he has not confessed, denial of burial in consecrated ground. also a perjurer lost his oath-worthiness. swearing a false oath or perjury was also punishable by loss of one's hand or half one's wergeld. a lord denying justice, as by upholding an evildoing thegn of his, had to pay 120s. to the king for his disobedience. furthermore, if a lord protected a theow of his who had stolen, he had to forfeit the theow and pay his wer, for the first offense, and he was liable for all he property, for subsequent offenses. there was a bot for anyone harboring a convicted offender. if anyone failed to attend the gemot thrice after being summoned, he was to pay the king a fine for his disobedience. if he did not pay this fine or do right, the chief men of the burh were to ride to him, and take all his property to put into surety. if he did not know of a person who would be his surety, he was to be imprisoned. failing that, he was to be killed. but if he escaped, anyone who harbored him, knowing him to be a fugitive, would be liable pay his wer. anyone who avenged a thief without wounding anyone, had to pay the king 120s. as wite for the assault. "and if anyone is so rich or belongs to so powerful a kindred, that he cannot be restrained from crime or from protecting and harboring criminals, he shall be led out of his native district with his wife and children, and all his goods, to any part of the kingdom which the king chooses, be he noble or commoner, whoever he may be with the provision that he shall never return to his native district. and henceforth, let him never be encountered by anyone in that district; otherwise he shall be treated as a thief caught in the act." this lawsuit between a son and his mother over land was heard at a shire meeting: "here it is declared in this document that a shire meeting sat at aylton in king cnut's time. there were present bishop aethelstan and earl ranig and edwin, the earl's son, and leofwine, wulfsige's son, and thurkil the white; and tofi the proud came there on the king's business, and bryning the sheriff was present, and aethelweard of frome and leofwine of frome and godric of stoke and all the thegns of herefordshire. then edwin, enneawnes son, came traveling to the meeting and sued his own mother for a certain piece of land, namely wellington and cradley. then the bishop asked whose business it was to answer for his mother, and thurkil the white replied that it was his business to do so, if he knew the claim. as he did not know the claim, three thegns were chosen from the meeting [to ride] to the place where she was, namely at fawley, and these were leofwine of frome and aethelsige the red and winsige the seaman, and when they came to her they asked her what claim she had to the lands for which her son was suing her. then she said that she had no land that in any way belonged to him, and was strongly incensed against her son, and summoned to her kinswoman, leofflaed, thurkil's wife, and in front of them said to her as follows: 'here sits leofflaed, my kinswoman, to whom, after my death, i grant my land and my gold, my clothing and my raiment and all that i possess.' and then she said to the thegns: 'act like thegns, and duly announce my message to the meeting before all the worthy men, and tell them to whom i have granted my land and all my property, and not a thing to my own son, and ask them to be witnesses of this.' and they did so; they rode to the meeting and informed all the worthy men of the charge that she had laid upon them. then thurkil the white stood up in the meeting and asked all the thegns to give his wife the lands unreservedly which her kinswoman had granted her, and they did so. then thurkil rode to st. aethelbert's minister, with the consent and cognizance of the whole assembly, and had it recorded in a gospel book." courts controlled by lords of large private estates had various kinds of jurisdiction recognized by the king: sac and soke [possession of legal powers of execution and profits of justice held by a noble or institution over inhabitants and tenants of the estate, exercised through a private court], toll [right to collect a payment on the sale of cattle and property] and team [right to hold a court to determine the honesty of a man accused of illegal possession of cattle], infangenetheof [the authority to judge and to hang and take the chattels of a thief caught on the property], and utfangenetheof [the authority to judge and to hand and take the chattels of a thief dwelling out of his liberty, and committing theft without the same, if he were caught within the lord's property]. some lords were even given jurisdiction over breach of the royal peace, ambush and treacherous manslaughter, harboring of outlaws, forced entry into a residence, and failure to answer a military summons. often this court's jurisdiction overlapped that of the hundred court and sometimes a whole hundred had passed under the jurisdiction of an abbot, bishop, or earl. a lord and his noble lady, or his steward, presided at this court. the law was administered here on the same principles as at the hundred court. judges of the leet of the court of a large private estate were chosen from the constables and four representatives selected from each community, village, or town. before a dispute went to the hundred court, it might be taken care of by the head tithing man, e.g. cases between vills, between neighbors, and some compensations and settlements, namely concerning pastures, meadows, harvests, and contests between neighbors. the vill [similar to village] was the smallest community for judicial purposes. there were several vills in a hundred. in london, the hustings court met weekly and decided such issues as wills and bequests and commerce matters. the folkmote of all citizens met three times a year. each ward had a leet court [for minor criminal matters]. the king and his witan decided the complaints and issues of the nobility and those cases which had not received justice in the hundred or shire court. the witan had a criminal jurisdiction and could imprison or outlaw a person. the witan could even compel the king to return any land he might have unjustly taken. specially punishable by the king was "oferhyrnesse": contempt of the king's law. it covered refusal of justice, neglect of summons to gemot or pursuit of thieves, disobedience to the king's officers, sounding the king's coin, accepting another man's dependent without his leave, buying outside markets, and refusing to pay peter's pence. the forests were peculiarly subject to the absolute will of the king. they were outside the common law. their unique customs and laws protected the peace of the animals rather than the king's subjects. only special officials on special commissions heard their cases. the form of oaths for compurgation were specified for theft of cattle, unsoundness of property bought, and money owed for a sale. the defendant denied the accusation by sweating that "by the lord, i am guiltless, both in deed and counsel, and of the charge of which ... accuses me." a compurgator swore that "by the lord, the oath is clean and unperjured which ... has sworn.". a witness swore that "in the name of almighty god, as i here for ... in true witness stand, unbidden and unbought, so i with my eyes oversaw, and with my ears overheard, that which i with him say." if a theow man was guilty at the ordeal, he was not only to give compensation, but was to be scourged thrice, or a second geld be given; and be the wite of half value for theows. chapter 4 the times: 1066-1100 william came from normandy to conquer england. he claimed that the former king, edward, the confessor, had promised the throne to him when they were growing up together in normandy, if edward became king of england and had no children. the conquerer's men and horses came in boats powered by oars and sails. the conquest did not take long because of the superiority of his military expertise to that of the english. he organized his army into three groups: archers with bows and arrows, horsemen with swords and stirrups, and footmen with hand weapons. each group played a specific role in a strategy planned in advance. the english army was only composed of footmen with hand weapons such as spears and shields. they fought in a line holding up their shields to overlap each other and form a shieldwall. the defeat of the english was thought to have been presaged by a comet. at westminster, he made an oath to defend god's holy churches and their rulers, to rule the whole people subject to him with righteousness and royal providence, to enact and hold fast right law, and to utterly forbid rapine and unrighteous judgments. this was in keeping with the traditional oath of a new king. declaring the english who fought against him to be traitors, the conquerer declared their land confiscated. but he allowed those who were willing to acknowledge him to redeem their land by a payment of money. as william conquered the land of the realm, he parceled it out among the barons who fought with him so that each baron was given the holdings of an anglo-saxon predecessor, scattered though they were. the barons again made oaths of personal loyalty to him [fealty]. they agreed to hold the land as his vassals with future military services to him and receipt of his protection. they gave him homage by placing their hands within his and saying "i become your man for the tenement i hold of you, and i will bear you faith in life and member [limb] and earthly honor against all men". they held their land "of their lord", the king, by knight's service. the king had "enfeoffed" them [given them a fief: a source of income] with land. the theory that by right all land was the king's and that land was held by others only at his gift and in return for specified service was new to english thought. the original duration of a knight's fee until about 1100 was for his life; thereafter it was heritable. the word "knight" came to replace the word "thegn" as a person who received his position and land by fighting for the king. the exact obligation of knight's service was to furnish a fully armed horseman to serve at his own expense for forty days in the year. this service was not limited to defense of the country, but included fighting abroad. the baron led his own knights under his banner. the foot soldiers were from the fyrd or were mercenaries. every free man was sworn to join in the defense of the king, his lands and his honor, within england and without. the saxon governing class was destroyed. the independent power of earls, who had been drawn from three great family houses, was curtailed. most died or fled the country. some men were allowed to redeem their land by money payment if they showed loyalty to the conquerer. well-born women crowded into nunneries to escape norman violence. the people were deprived of their most popular leaders, who were excluded from all positions of trust and profit, especially all the clergy. the earldoms became fiefs instead of magistracies. the conquerer was a stern and fierce man and ruled as an autocrat by terror. whenever the people revolted or resisted his mandates, he seized their lands or destroyed the crops and laid waste the countryside and so that they starved to death. his rule was strong, resolute, wise, and wary because he had learned to command himself as well as other men. he was not arbitrary or oppressive. the conquerer had a strict system of policing the nation. instead of the anglo-saxon self-government throughout the districts and hundreds of resident authorities in local courts, he aimed at substituting for it the absolute rule of the barons under military rule so favorable to the centralizing power of the crown. he used secret police and spies and the terrorism this system involved. this especially curbed the minor barons and preserved the public peace. the english people, who outnumbered the normans by 300 to 1, were disarmed. curfew bells were rung at 7:00 pm when everyone had to remain in their own dwellings on pain of death and all fires and candles were to be put out. this prevented any nightly gatherings, assassinations, or seditions. order was brought to the kingdom so that no man dare kill another, no matter how great the injury he had received. the conquerer extended the king's peace on the highways, i.e. roads on high ground, to include the whole nation. any individual of any rank could travel from end to end of the land unharmed. before, prudent travelers would travel only in groups of twenty. the barons subjugated the english who were on their newly acquired land. there began a hierarchy of seisin [rightful occupation] of land so that there could be no land without its lord. also, every lord had a superior lord with the king as the overlord or supreme landlord. one piece of land may be held by several tenures. for instance, a, holding by barons' service of the king, may enfeoff b, a church, to hold of him on the terms of praying for the souls of his ancestors, and b may enfeoff a freeman c to hold of the church by giving it a certain percentage of his crops every year. there were about 200 barons who held land directly of the king. other fighting men were the knights, who were tenants or subtenants of a baron. knighthood began as a reward for valor on the field of battle by the king or a noble. the value of a knight's fee was 400s. [20 pounds] per year. altogether there were about 5000 fighting men holding land. the essence of norman feudalism was that the land remained under the lord, whatever the vassal might do. the lord had the duty to defend the vassals on his land. the vassal owed military service to the lord and also the service of attending the courts of the hundred and the county [formerly "shire"], which were courts of the king, administering old customary law. they were the king's courts on the principle that a crime anywhere was a breach of the king's peace. the king's peace that had covered his residence and household had extended to places where he might travel, such as highways, rivers, bridges, churches, monasteries, markets, and towns, and then encompassed every place, replacing the general public peace. infraction of the king's peace incurred fines to the king. this feudal bond based on occupancy of land rather than on personal ties was uniform throughout the realm. no longer could a man choose his lord and transfer his land with him to a new lord. he held his land at the will of his lord, to be terminated anytime the lord decided to do so. a tenant could not alienate his land without permission of his lord. in later eras, tenancies would be held for the life of the tenant, and even later, for his life and those of his heirs. this uniformity of land organization plus the new requirement that every freeman take an oath of loyalty directly to the king to assist him in preserving his lands and honor and defending him against his enemies, which oath would supersede any oath to any other man, gave the nation a new unity. the king could call men directly to the fyrd, summon them to his court, and tax them without intervention of their lords. and the people learned to look to the king for protection from abuse by their lords. english villani, bordarii, cottarii, and servi on the land of the barons were subjugated into a condition of "villeinage" servitude and became "tied to the land" so that they could not leave the land without their lord's permission, except to go on a pilgrimage. the villeins formed a new bottom class as the population's percentage of slaves declined dramatically. they held their land of their lord, the baron. to guard against uprisings of the conquered people, the barons used villein labor to build about a hundred great stone castles, with moats and walls with towers around them, at easily defensible positions such as hilltops all over the nation. a castle could be built only with permission of the king. a typical castle had a stone building of about four floors [a keep] on a small, steep hill. later it also had an open area surrounded by a stone curtain-wall with towers at the corners. around the outside of the wall were ditches and banks and perhaps a moat. one traveled over these via a drawbridge let down at the gatehouse of the enclosing wall. on either side of the gatehouse were chambers for the guards. arrows could be shot through slits in the enclosing walls. inside the enclosed area might be stables, a granary, barracks for the soldiers, and workshops. the only winter feed was hay, for which the horses, breeding animals, milkcow, and workoxen had a priority over other animals. the bulk of the cattle were usually slaughtered and salted. the castle building typically was entered by an outer wood staircase to the guard room on the second floor. the first [ground] floor had a well and was used as a storehouse and/or dungeons for prisoners. the second floor had a two-storied great hall, with small rooms and aisles around it within the thick walls. there was also a chapel area on the second floor. there were small areas of the third floor which could be used for sleeping. the floors were wood and were reached by a spiral stone staircase in one corner of the building. sometimes there was a reservoir of water on an upper level with pipes carrying the water to floors below. each floor had a fireplace with a slanted flue going through the wall to the outside. there were latrines in the corner walls with a pit or shaft down the exterior of the wall, sometimes to the moat. furs and wool clothes were hung on the walls there in the summer to deter the moths. the first floor had only arrow slits in the walls, but the higher floors had small windows. some curtain-wall castles did not have a central building. in these, the hall was built along the inside of the walls, as were other continuous buildings. the kitchens and chapels were in the towers. lodgings were in buildings along the curtain-walls, or on several floors of the towers. the great hall was the main room of the castle. the hall was used for meals and meetings at which the lord received homages, recovered fees, and held the view of frankpledge [free pledge in latin], in which freemen agreed to be sureties for each other. at the main table, the lord and his lady sat on benches with backs or chairs. the table was covered first with a wool cloth that reached to the floor, and then by a smaller white linen cloth. everyone else sat on benches at trestle tables, which consisted of planks on trestles and could be dismantled, e.g. at night. over the main door were the family arms. on the walls were swords ready for instant use. on the upper parts of the walls could be fox skins and perhaps a polecat skin, and keepers' and huntsmen's poles. there were often hawk perches overhead. at the midday dinner, courses were ceremonially brought in to music, and ritual bows were made to the lord. the food at the head table was often tasted first by a servant as a precaution against poison. hounds, spaniels, and terriers lay near the hearth and cats, often with litters, nestled nearby. they might share in dinner, but the lord may keep a short stick near him to defend morsels he meant for himself. hunting, dove cotes, and carp pools provided fresh meat. fish was compulsory eating on fridays, on fast days, and during lent. cooking was done outside on an open fire, roasting on spits and boiling in pots. some spits were mechanized with a cogged wheel and a weight at the end of a string. other spits were turned by a long handle, or a small boy shielded from the heat by a wet blanket, or by dogs on a treadmill. underneath the spit was a dripping pan to hold the falling juices and fat. mutton fat was used for candles. bread, pies, and pastry dishes were baked in an oven: a hole in a fireproof stone wall fitted with an iron door, in which wood was first burnt to heat the oven walls. it could also be used for drying fruit or melting tallow. fruits were also preserved in honey. salt was stored in a niche in the wall near the hearth and put on the table in a salt cellar which became more elaborate over the years. salt was very valuable and gave rise to the praise of a man as the salt of the earth. costly imported spices such as cinnamon, cloves, nutmeg, ginger, pepper, and a small quantity of sugar were kept in chests. pepper was always on the table to disguise the taste of tainted meat. spices were tried for medicinal use. drinks included wine, ale, cider from apples, perry from pears, and mead. people carried and used their own knives. there were no forks. spoons were of silver or wood. people also ate with their fingers and washed their hands before and after meals. it was impolite to dig into the salt bowl with a knife not previously wiped on bread or napkin, which was linen. it was unmannerly to wipe one's knife or one's greasy fingers on the tablecloth or, to use the tablecloth to blow one's nose. feasts were stately occasions with costly tables and splendid apparel. there were practical jokes, innocent frolics, and witty verbal debating with repartee. they played chess, checkers, and various games with cards and dice. most people could sing and some could play the lute. lighting of the hall at night was by oil lamps or candles on stands or on wall fixtures. for outside activities, a lantern [a candle shielded by a metal cage with panels of finely shaved horn: lant horn] was used. the residence of the lord's family and guests was at a screened off area at the extreme end of the hall or on a higher floor. chests stored garments and jewels. iron keys and locks were used for chests and doors. the great bed had a wooden frame and springs made of interlaced rope or strips of leather. it was covered with a feather mattress, sheets, quilts, fur covers, and pillows. drapery around the bed kept out cold drafts and provided privacy. there was a water bowl for washing in the morning. a chamber pot was kept under the bed for nighttime use. hay was used as toilet paper. the lord's personal servants slept nearby on benches or trundle beds. most of the gentlemen servants slept communally in a "knight's chamber". the floor of the hall was strewn with straw, on which common folk could sleep at night. there were stools on which to sit. cup boards (boards on which to store cups) and chests stored spices and plate. one-piece iron shears were available to cut cloth. handheld spindles were used for weaving; one hand held the spindle [a small stick weighted at one end] while the other hand alternately formed the thread and wound it around the spindle. on the roofs there were rampart walks for sentry patrols and parapets from which to shoot arrows or throw things at besiegers. each tenant of the demesne of the king where he had a castle had to perform a certain amount of castle guard duty for its continuing defense. these knights performing castle-guard duty slept at their posts. bathing was done in a wooden tub located in the garden in the summer and indoors near the fire in winter. the great bed and tub for bathing were taken on trips with the lord. the entire household was of men, except for the lord's lady with a few lady companions; otherwise the entire household was of men. the ladies rode pillion [on a cushion behind the saddle] or in litters suspended between two horses. markets grew up outside castle walls. any trade on a lord's land was subject to "passage", a payment on goods passing through, "stallage", a payment for setting up a stall or booth in a market, and "pontage", a payment for taking goods across a bridge. the norman man was clean shaven on his face and around his ears and at the nape of the neck. his hair was short. he wore a longsleeved under-tunic of linen or wool that reached to his ankles. over this the norman noble wore a tunic without sleeves, open at the sides, and fastened with a belt. over one shoulder was his cloak, which was fastened on the opposite shoulder by being drawn through a ring brooch and knotted. he wore tight thick cloth stockings to protect him from the mud and leather shoes. common men wore durable, but drab, wool tunics to the knee so as not to impede them in their work. they could roll up their stockings when working in the fields. a lady also wore a high-necked, longsleeved linen or wool tunic fitted at the waist and laced at the side, but full in the skirt, which reached to her toes. she wore a jeweled belt, passed twice around her waist and knotted in front. her hair was often in two long braids, and her head and ears covered with a white round cloth held in place by a metal circlet like a small crown. its ends were wound around her neck. in winter, she wore over her tunic a cloak edged or lined with fur and fastened at the front with a cord. clothes of both men and ladies were brightly colored by dyes or embroidery. the norman knight wore an over-tunic of leather or heavy linen on which were sewn flat rings of iron and a conical iron helmet with nose cover. he wore a sword at his waist and a metal shield on his back, or he wore his sword and his accompanying retainers carried spear and shield. norman customs were adopted by the nation. as a whole, anglo-saxon men shaved their beards and whiskers from their faces, but they kept their custom of long hair flowing from their heads. but a few kept their whiskers and beards in protest of the normans. everyone had a permanent surname indicating parentage, place of birth, or residence, such as field, pitt, lane, bridge, ford, stone, burn, church, hill, brook, green. other names came from occupations such as shepherd, carter, parker, fowler, hunter, forester, smith. still other came from personal characteristics such as black, brown, and white, short, round, and long. some took their names from animals such as wolf, fox, lamb, bull, hogg, sparrow, crow, and swan. others were called after the men they served, such as king, bishop, abbot, prior, knight. a man's surname was passed on to his son. those few coerls whose land was not taken by a baron remained free and held their land "in socage" and became known as sokemen. they were not fighting men, and did not give homage, but might give fealty, i.e. fidelity. many free sokemen were caught up in the subjugation by baron landlords and were reduced almost to the condition of the unfree villein. the services they performed for their lords were often indistinguishable. they might also hold their land by villein tenure, although free as a person with the legal rights of a freeman. the freeman still had a place in court proceedings which the unfree villein did not. great stone cathedrals were built in fortified towns for the conquerer's norman bishops, who replaced the english bishops. most of the existing and new monasteries functioned as training grounds for scholars, bishops, and statesmen rather than as retreats from the world's problems to the security of religious observance. the number of monks grew as the best minds were recruited into the monasteries. the conquerer made the church subordinate to him. bishops were elected only subject to the king's consent. the bishops had to accept the status of barons. homage was exacted from them before they were consecrated, and fealty and an oath afterward. the conquerer imposed knight's service on bishoprics, abbeys, and monasteries, which was usually commuted to a monetary amount. bishops had to attend the king's court. bishops could not leave the realm without the king's consent. no royal tenant or royal servant could be excommunicated, nor his lands be placed under interdict, without the king's consent. interdict could demand, for instance, that the church be closed and the dead buried in unconsecrated ground. no church rules could be made without his agreement to their terms. no letters from the pope could be received without the king's permission. the archbishop of canterbury was still recognized as a primary advisor to the king. over the years, the selection for this office frequently became a source of contention among king, pope, and clergy. men continued to give land to the church for their souls, such as this grant which started the town of sandwich: "william, king of the english, to lanfranc the archbishop and hugoni de montfort and richard son of earl gilbert and haimo the sheriff and all the thegns of kent, french and english, greeting. know ye that the bishop of bayeux my brother for the love of god and for the salvation of my soul and his own, has given to st. trinity all houses with their appurtenances which he has at sandwich and that he has given what he has given by my license." many private owners of churches gave them to cathedrals or monastic communities, partly to ensure their long term survival, and partly because of church pressure. when the land was all divided out, the barons had about 3/7 of it and the church about 2/7. most of the barons had been royal servants. the king retained about 2/7, including forests for hunting, for himself and his family and household, on which he built many royal castles and hundreds of manor [large private estate headed by a lord] houses throughout the nation. he built the massive white tower in london. it was tall with four turrets on top, and commanded a view of the river and bridge, the city and the surrounding countryside. the only windows were slits from which arrows could be shot. on the fourth and top floor was the council chamber and the gallery of the chapel. on the third floor was the banqueting hall, the sword room, and the chapel. the king and his household slept in apartments on these upper floors. stairs went up to the gateway entrance on the second floor, which were hidden by a wall. the garrison's barracks were on the first floor (ground floor). any prisoners were kept in cells at a level below the first floor. the other castles were often built at the old fortification burhs of alfred. each had a constable in charge, who was a baron. barons and earls had castle-guard duty in the king's castles. the conquerer was constantly moving about the land among his and his barons' castles, where he met with his magnates and conducted public business, such as deciding disputes about holding of land. near his own castles and other of his property, he designated many areas as royal hunting forests. anyone who killed a deer in these forests was mutilated, for instance by blinding. people living within the boundaries of the designated forestland could no longer go into nearby woods to get meat or honey, dead wood for firing, or live wood for building. swineherds could no longer drive pigs into these woods to eat acorns they beat down from oak trees. making clearings and grazing livestock in the designated forestland were prohibited. most of the nation was either wooded or bog at this time. london was a walled town of one and two story houses made of mud, twigs, and straw, with thatched roofs. it included a bundle of communities, townships, parishes, and lordships. there were churches, a goods market, a fish market, quays on the river, and a bridge over the river. streets probably named by this time include bread street, milk street, honey lane, wood street, and ironmonger lane. fairs and games were held outside the town walls in a field called "smithfield". the great citizens had the land qualifications of knights and ranked as barons on the conquerer's council. the freemen were a small percentage of london's population. there was a butchers' guild, a pepperers' guild, a goldsmiths' guild, the guild of st. lazarus, which was probably a leper charity (of which there were many in the 1000s and 1100s), the pilgrims' guild, which helped people going on pilgrimages, and four bridge guilds, probably for keeping the wooden london bridge in repair. men told the time by sundials, some of which were portable and could be carried in one's pocket. london could defend itself, and a ringing of the bell of st. paul's church could shut every shop and fill the streets with armed horsemen and soldiers led by a soldier portreeve. across the thames from london on its south side was southwark, a small trading and fishing settlement. the conquerer did not interfere with landholding in london, but recognized its independence as a borough in this writ: "william the king greets william, bishop of london, and gosfrith the portreeve, and all the burgesses [citizens] of london friendly. know that i will that you be worthy of all the laws you were worthy of in the time of king edward. and i will that every child shall be his father's heir after his father's day. and i will not suffer any man to do you wrong. god preserve you." the norman word "mayor" replaced "portreeve". so london was not subjected to the norman feudal system. it had neither villeins nor slaves. whenever kings asserted authority over it, the citizens reacted until the king "granted" a charter reaffirming the freedoms of the city and its independence. under pressure from the ecclesiastical judges, the conquerer replaced the death penalty by that of the mutilation of blinding, chopping off hands, and castrating offenders. castration was the punishment for rape. but these mutilations usually led to a slow death by gangrene. the normans used the anglo-saxon concepts of jurisdictional powers. thus when the conquerer confirmed "customs" to the abbot of ely, these were understood to include the following: 1) sac and soke the right to hold a court of private jurisdiction and enjoy its profits, 2) toll a payment in towns, markets, and fairs for goods and chattel bought and sold, 3) team persons might be vouched to warranty in the court, the grant of which made a court capable of hearing suits arising from the transfer of land, 4) infangenthef right of trying and executing thieves on one's land, 4) hamsocne, 5) grithbrice violation of the grantees' special peace, for instance that of the sheriff, 6) fightwite fine for a general breach of the peace, 7) fyrdwite fine for failure to appear in the fyrd. every shire, now called "county", had at least one burh, or defensible town. kings had appointed a royal moneyer in each burh to mint silver coins such as pennies for local use. on one side was the king's head in profile and on the other side was the name of the moneyer. when a new coinage was issued, all moneyers had to go to london to get the new dies. the conquerer's head faced frontally on his dies, instead of the usual profile used by former kings. the conquerer held and presided over his council three times a year, as was the custom, at easter, christmas, and whitsuntide, which coincided with the great christian festivals. this was an advisory council and consisted of the conquerer's wife and sons, earls, barons, knights, officers of the king's household, archbishops, and bishops. it replaced the witan of wise men. it dealt with fundamental matters of law, state, war, and church. its functions were largely ceremonial. earldoms and knighthoods were conferred and homages to the king were witnessed. bishops were nominated. attendance at the council, like attendance at courts, was regarded as a burden rather than a privilege. the conquerer's will was the motive force which under lay all the council's action. when it was administering royal justice, it was called the royal court.. the justiciar was the head of all legal matters and he or the conquerer's wife represented the king at the royal court in his absence from the realm. the chamberlain was a financial officer of the household; his work was rather that of auditor or accountant. the chancellor headed the chancery and the chapel. other household offices were steward, butler, constable, and marshall. the treasurer was responsible for the collection and distribution of revenue and was the keeper of the royal treasure at the palace at winchester. he was also an important member of the household and sat in the exchequer at westminster, where he received the accounts of the sheriffs. the exchequer was composed of the justiciar as head, the chancellor, the constable, two chamberlains, the marshall and other experienced councilors. the word "exchequer" came from the chequered cloth on the table used to calculate in roman numerals the amount due and the amount paid. the word "calculate" derives from the word "calculi", meaning pebbles. it was a kind of abacus. the exchequer received yearly from the sheriffs of the counties taxes, fines, treasure trove, goods from wrecks, deodands, and movable property of felons, of persons executed, of fugitives, and of outlaws due to the crown. the conqueror presided yearly over feasts involving several thousand guests at westminster hall, which was 250 feet by 70 feet with a high ceiling, the largest hall in england. the conquerer's reign was a time of tentative expedients and simple solutions. he administered by issuing writs with commands or prohibitions. these were read aloud by the sheriffs in the county courts and other locations. administration was by the personal servants of his royal household, such as the chancellor, chamberlain, constable, marshals, steward, and butler. the language of government changed to latin. the chancellor was from the clergy and supervised the writers and clerks, who were literate, and appended the great seal before witnesses to documents. he also headed the staff of the royal chapel. the chamberlain was a financial officer who audited and accounted. the constable was responsible for supplies for the knights of the royal household. he also supervised the care of horses, hounds, hawks, and huntsmen, houndsmen, and foresters. the marshals came from less important families than the constable and they preserved order in the king's hall and recorded expenditures of the household officers on tallies. the steward was a great baron whose duties were chiefly ceremonial, such as placing the dishes before the king at banquets. sheriffs became powerful figures as the primary agents for enforcing royal edicts. there was no longer supervision of them by earls nor influence on them by bishops. they were customarily prominent barons. they collected the royal taxes, executed royal justice, and presided over and controlled the hundred and county courts. they were responsible for remitting a certain sum annually. if a sheriff received more than necessary, he retained the difference as his lawful profit of office. if he received less than necessary, he had to make up the difference from his own pocket. before rendering this account, he paid the royal benefactions to religious houses, provided for the maintenance of stock on crown lands, paid for the costs of provisions supplied to the court, and paid for traveling expenses of the king and his visitors. the payments were initially paid in kind: e.g. grain, cattle, horses, hounds, and hawks. sheriffs also took part in the keeping of castles and often managed the estates of the king. most royal writs were addressed to the sheriff and county courts. they also led the county militia in time of war or rebellion. at times, a sheriff usurped royal rights, used royal estates for his own purposes, encroached on private land and rights, extorted money, and collected revenues only for his own pockets. over the centuries, there was much competition for the authority to select the king, e.g. by the king, the county court, the barons, and the exchequer. there was also much pressure to limit his term to one year. also, the powers of the sheriffs slowly declined. royal income came from customary dues, profits of coinage and of justice, and revenues from the king's own estates. for war, there was no change in the custom that a man with five hides of land was required to furnish one heavy armed horseman for forty days service in a year. the fyrd was retained. a threat of a viking invasion caused the conquerer to reinstate the danegeld tax at 6s. per hide, which was three times its old rate. (the price of an ox was still about 30d.) to impose this tax uniformly, he sent commissioners to conduct surveys by sworn verdicts of appointed groups of local men. a detailed survey of land holdings and the productive worth of each was made in 1086. the english called it the "doomsday book" because there was no appeal from it. the survey revealed, for instance, that one estate had "on the home farm five plough teams: there are also 25 villeins and 6 cotters with 14 teams among them. there is a mill worth 2s. a year and one fishery, a church and four acres of meadow, wood for 150 pigs and two stone quarries, each worth 2s. a year, and two nests of hawks in the wood and 10 slaves." this estate was deemed to be worth 480s. a year. laxton "had 2 carucates of land [assessed] to the geld. [there is] land for 6 ploughs. there walter, a man of [the lord] geoffrey alselin's has 1 plough and 22 villeins and 7 bordars [a bordar had a cottage and a small amount land in return for supplying small provisions to his lord] having 5 ploughs and 5 serfs and 1 female serf and 40 acres of meadow. wood [land] for pannage [foraging by pigs] 1 league in length and half a league in breadth. in king edward's time it was worth 9 pounds; now [it is worth] 6 pounds." ilbert de laci has now this land, where he has twelve ploughs in the demesne; and forty-eight villani, and twelve bordars with fifteen ploughs, and three churches and three priests, and three mills of ten shillings. wood pastures two miles long, and one broad. the whole manor five miles long and two broad. value in king edward's time sixteen pounds, the same now. that manor of the town of coventry which was individually held was that of the countess of coventry, who was the wife of the earl of mercia. "the countess held in coventry. there are 5 hides. the arable land employs 20 ploughs. in the demesne lands there are 3 ploughs and 7 bondmen. there are 50 villeins and 12 bordars with 20 ploughs. the mill there pay[s] 3 shillings. the woodlands are 2 miles long and the same broad. in king edward's time and afterwards, it was worth 22 pounds [440 s.], now only 11 pounds by weight. these lands of the countess godiva nicholas holds to farm of the king." the survey shows a few manors and monasteries owned a salthouse or saltpit in the local saltworks, from which they were entitled to obtain salt. in total there were about 110,000 villani [former coerls regarded as customary, irremovable cultivator tenants]; 82,000 bordarii; 7,000 cotarii and cotseti [held land by service of labor or rent paid in produce], and 25,000 servi [landless laborers]. there are no more theows. in the nation, there was a total of about 25,000 servi [landless laborers], over 82,000 borderii, nearly 7,000 coatarii and cotseti [held land or houses by service of labor or rent paid in produce], and nearly 110,000 villani. this survey resulted in the first national tax system of about 6s. per hide of land. the survey also provided the conquerer with a summary of customs of areas. for instance, in oxfordshire, "anyone breaking the king's peace given under his hand and seal to the extent of committing homicide shall be at the king's mercy in respect of his life and members. that is if he be captured. and if he cannot be captured, he shall be considered as an outlaw, and anyone who kills him shall have all his possessions. the king shall take the possessions of any stranger who has elected to live in oxford and who dies in possession of a house in that town, and without any kinfolk. the king shall be entitled to the body and the possessions of any man who kills another within his own court or house excepting always the dower of his wife, if he has a wife who has received dower. the courts of the king and barons became schools of chivalry wherein seven year old noble boys became as pages or valets, wore a dagger and waited upon the ladies of the household. at age fourteen, they were advanced to squires and admitted into more familiar association with the knights and ladies of the court. they perfected their skills in dancing, riding, fencing, hawking, hunting, jousting, and engaged in team sports in which the goal was to put the other side to rout. they learned the knightly art of war. enemy fighters were to be taken and held for ransom rather than killed. those engaging in rebellion were to be pardoned and restored to some or all of their lands and titles. lords' sons could be mutually exchanged with an enemy's as security for peace. after achieving knighthood, a man usually selected a wife from the court at which he grew up. parents tried to send their daughters to a household superior in social status not only to learn manners, but to make a good marriage. a girl who did not marry was often sent to a nunnery; a dowry was necessary before her acceptance. the following incidents of land tenure began (but were not firmly established until the reign of henry ii). each tenant, whether baron or subtenant, was to pay an "aid" in money for ransom if his lord was captured in war, for the knighthood of his lord's eldest son, and for the marriage of his lord's eldest daughter. the aid was theoretically voluntary. land could be held by an heir only if he could fight. the eldest son began to succeed to the whole of the lands in all military tenures. younger sons of great houses became bishops. an heir of a tenant had to pay a heavy "relief" on succession to his estate. the relief replaced the heriot. if there was a delay in proving heirship or paying relief, the lord would hold the land and receive its income in the meantime, often a year. if an heir was still a minor or female, he or she passed into his lord's wardship, in which the lord had guardianship of the heir and possession of the estate, with all its profits. the mother was not made a minor's guardian. no longer was the estate protected by the minor's kin as his birthright. a female heir was expected to marry a man acceptable to the lord. the estate of an heiress and her land was generally sold to the highest bidder. if there were no heirs, the land escheated to the lord. if a tenant committed felony, his land escheated to his lord. the word "felony" came from the latin word meaning "to deceive" and referred to the feudal crime of betraying or committing treachery against one's lord. astrologers resided with the families of the barons. people went to fortune tellers' shops. there was horse racing, steeple races, and chess for recreation. girls had dolls; boys had toy soldiers, spinning tops, toy horses, ships, and wooden models. the state of medicine is indicated by this medical advice brought to the nation by william's son after treatment on the continent: "if thou would have health and vigor shun cares and avoid anger. be temperate in eating and in the use of wine. after a heavy meal rise and take the air sleep not with an overloaded stomach and above all thou must respond to nature when she calls." the conquerer allowed jewish traders to follow him from normandy and settle in separate sections of the main towns. then engaged in long distance trade, money changing, and money lending. they loaned money for interest for the building of castles and cathedrals. christians were not allowed by the church to engage in this usury. the jews could not become citizens nor could they have standing in the local courts. instead, a royal justiciar secured justice for them. they could practice their own religion. william the conquerer was succeeded as king by his son william ii (rufus), who transgressed many of the customs of the nation to get more money for himself. he was killed by an arrow of a fellow hunter while they and william's younger brother henry were hunting together in a crown forest. henry then became king. the law the norman conquerors brought no written law, but affirmed the laws of the nation. two they especially enforced were: anyone caught in the act of digging up the king's road, felling a tree across it, or attacking someone so that his blood spilled on it shall pay a fine to the king. all freemen shall have a surety who would hand him over to justice for his offenses or pay the damages or fines due. if an accused man fled, his surety would have a year to find him to obtain reimbursement. the conquerer proclaimed that: no cattle shall be sold except in towns and before three witnesses. for the sale of ancient chattels, there must be a surety and a warrantor. no man shall be sold over the sea. (this ended the slave trade at the port of bristol.) the death penalty for persons tried by court is abolished. judicial procedure "ecclesiastical" courts were created for bishops to preside over cases concerning the cure of souls and criminal cases, in which the ordeal was used. when the conquerer did not preside over this court, an appeal could be made to him. the hundred and county courts now sat without clergy and handled only "civil" cases. they were conducted by the king's own appointed sheriff. only freemen and not bound villeins had standing in this court. they continued to transact their business in the english language. the local jurisdictions of thegns who had grants of sac and soke or who exercised judicial functions among their free neighbors were now called "manors" under their new owners, who conducted a manor court. the conquerer's royal court was called the "curia regis". when the conquerer wished to determine the national laws, he summoned twelve elected representatives of each county to declare on oath the ancient lawful customs and law as they existed in the time of the popular king edward the confessor. the recording of this law was begun. a person could spend months trying to catch up with the royal court to present a case. sometimes the conquerer sent the justiciar or commissioners to hold his royal court in the various districts. the commissioner appointed groups of local men to give a collective verdict upon oath for each trial he conducted. the conquerer allowed, on an ad hoc basis, certain high-level people such as bishops and abbots and those who made a large payment, to have land disputes decided by an inquiry of recognitors. besides royal issues, the curia regis heard appeals from lower court decisions. it used english, norman, feudal, roman, and canon law legal principles to reach a decision, and was flexible and expeditious. a dispute between a norman and an english man over land or a criminal act could be decided by trial by combat [battle]. each combatant first swore to the truth of his cause and undertook to prove by his body the truth of his cause by making the other surrender by crying "craven" [craving forgiveness]. the combatants used weapons like pickaxes and shields. presumably the man in the wrong would not fight as well because he was burdened with a guilty conscience. although this trial was thought to reflect god's will, it favored the physically fit and adept person. after losing the trial by combat, the guilty person would be punished appropriately. london had its own traditions. all london citizens met at its folkmote, which was held three times a year to determine its public officers, to raise matters of public concern, and to make ordinances. its criminal court had the power of outlawry as did the county courts. trade, land, and other civil issues were dealt with by the hustings court, which met every monday in the guildhall. the city was divided into wards, each of which was under the charge of an elected alderman [elder man]. (the election was by a small governing body and the most wealthy and reputable men and not a popular election.) the aldermen had special knowledge of the law and a duty to declare it at the hustings court. each alderman also conducted wardmotes in his ward and decided criminal and civil issues between its residents. within the wards were the guilds of the city. the normans, as foreigners, were protected by the king's peace. the entire hundred was the ultimate surety for murder and would have to pay a "murdrum" fine of 31 pounds [46 marks] for the murder of any norman, if the murderer was not apprehended by his lord within a few days. the reaction to this was that the murderer mutilated the corpse to make identification of ethnicity impossible. so the conquerer ordered that every murder victim was assumed to be norman unless proven english. this began a court custom in murder cases of first proving the victim to be english. the royal court decided this case: "at length both parties were summoned before the king's court, in which there sat many of the nobles of the land of whom geoffrey, bishop of coutances, was delegated by the king's authority as judge of the dispute, with ranulf the vicomte, neel, son of neel, robert de usepont, and many other capable judges who diligently and fully examined the origin of the dispute, and delivered judgment that the mill ought to belong to st. michael and his monks forever. the most victorious king william approved and confirmed this decision." chapter 5 the times: 1100-1154 king henry i, son of william the conquerer, furthered peace between the normans and native english by his marriage to a niece of king edward the confessor called matilda. she married him on condition that he grant a charter of rights undoing some practices of the past reigns of william i and william ii. peace was also furthered by the fact that henry i had been born in england and english was his native tongue. the private wars of lords were now replaced by less serious mock battles. henry was a shrewd judge of character and of the course of events, cautious before taking action, but decisive in carrying out his plans. he was faithful and generous to his friends. he showed a strong practical element of calculation and foresight. although illiterate, he was intelligent and a good administrator. he had an efficient intelligence gathering network and an uncanny knack of detecting hidden plans before they became conspiratorial action. he made many able men of inferior social position nobles, thus creating a class of career judges and administrators in opposition to the extant hereditary aristocracy. he loved books and built a palace at oxford to which he invited scholars for lively discussion. euclid's "elements" ", which deduced from axioms the properties of lines, circles, and spheres, was introduced into england. queen matilda served as regent of the kingdom in henry's absence, as william's queen had for him. both queens received special coronation apart from their husbands; they held considerable estates which they administered through their own officers, and were frequently composed of escheated honors. matilda was learned and a literary patron. she founded an important literary and scholastic center. her compassion was great and her charities extensive. in london she founded several almshouses and a caregiving infirmary for lepers. these were next to small monastic communities. she also had new roads and bridges built. henry issued charters restoring customs which had been subordinated to royal impositions by previous kings, which set a precedent for later kings. his coronation charter describes certain property rights he restored after the oppressive reign of his brother. "henry, king of the english, to samson the bishop, and urse of abbetot, and to all his barons and faithful vassals, both french and english, in worcestershire, greeting. [1.] know that by the mercy of god and by the common counsel of the barons of the whole kingdom of england i have been crowned king of this realm. and because the kingdom has been oppressed by unjust exactions, i now, being moved by reverence towards god and by the love i bear you all, make free the church of god; so that i will neither sell nor lease its property; nor on the death of an archbishop or a bishop or an abbot will i take anything from the demesne of the church or from its vassals during the period which elapses before a successor is installed. i abolish all the evil customs by which the kingdom of england has been unjustly oppressed. some of those evil customs are here set forth. [2.] if any of my barons or of my earls or of any other of my tenants shall die his heir shall not redeem his land as he was wont to do in the time of my brother [william ii (rufus)], but he shall henceforth redeem it by means of a just and lawful 'relief`. similarly the men of my barons shall redeem their lands from their lords by means of a just and lawful 'relief`. [3.] if any of my barons or of my tenants shall wish to give in marriage his daughter or his sister or his niece or his cousin, he shall consult me about the matter; but i will neither seek payment for my consent, nor will i refuse my permission, unless he wishes to give her in marriage to one of my enemies. and if, on the death of one of my barons or of one of my tenants, a daughter should be his heir, i will dispose of her in marriage and of her lands according to the counsel given me by my barons. and if the wife of one of my tenants shall survive her husband and be without children, she shall have her dower and her marriage portion [that given to her by her father], and i will not give her in marriage unless she herself consents. [4.] if a widow survives with children under age, she shall have her dower and her marriage portion, so long as she keeps her body chaste; and i will not give her in marriage except with her consent. and the guardian of the land, and of the children, shall be either the widow or another of their relations, as may seem more proper. and i order that my barons shall act likewise towards the sons and daughters and widows of their men. [5.] i utterly forbid that the common mintage [a forced levy to prevent loss to the king from depreciation of the coinage], which has been taken from the towns and counties, shall henceforth be levied, since it was not so levied in the time of king edward [the confessor]. if any moneyer or other person be taken with false money in his possession, let true justice be visited upon him. [6.] i forgive all pleas and all debts which were owing to my brother [william ii], except my own proper dues, and except those things which were agreed to belong to the inheritance of others, or to concern the property which justly belonged to others. and if anyone had promised anything for his heritage, i remit it, and i also remit all 'reliefs' which were promised for direct inheritance. [7.] if any of my barons or of my men, being ill, shall give away or bequeath his movable property, i will allow that it shall be bestowed according to his desires. but if, prevented either by violence or through sickness, he shall die intestate as far as concerns his movable property, his widow or his children, or his relatives or one his true men shall make such division for the sake of his soul, as may seem best to them. [8.] if any of my barons or of my men shall incur a forfeit, he shall not be compelled to pledge his movable property to an unlimited amount, as was done in the time of my father [william i] and my brother; but he shall only make payment according to the extent of his legal forfeiture, as was done before the time of my father and in the time of my earlier predecessors. nevertheless, if he be convicted of breach of faith or of crime, he shall suffer such penalty as is just. [9.] i remit all murder fines which were incurred before the day on which i was crowned king; and such murder fines as shall now be incurred shall be paid justly according to the law of king edward [by sureties]. [10.] by the common counsel of my barons i have retained the forests in my own hands as my father did before me. [11.] the knights, who in return for their estates perform military service equipped with a hauberk [long coat] of mail, shall hold their demesne lands quit of all gelds [money payments] and all work; i make this concession as my own free gift in order that, being thus relieved of so great a burden, they may furnish themselves so well with horses and arms that they may be properly equipped to discharge my service and to defend my kingdom. [12.] i establish a firm peace in all my kingdom, and i order that this peace shall henceforth be kept. [13.] i restore to you the law of king edward together with such emendations to it as my father [william i] made with the counsel of his barons. [14.] if since the death of my brother, king william [ii], anyone shall have seized any of my property, or the property of any other man, let him speedily return the whole of it. if he does this no penalty will be exacted, but if he retains any part of it he shall, when discovered, pay a heavy penalty to me. witness: maurice, bishop of london; william, bishop-elect of winchester; gerard, bishop of herefore; henry the earl; simon the earl; walter giffard; robert of montfort-sur-risle; roger bigot; eudo the steward; robert, son of haimo; and robert malet. at london when i was crowned. farewell." henry took these promises seriously, which resulted in peace and justice. royal justice became a force to be reckoned with by the multiplication of justices. henry had a great respect for legality and the forms of judicial action. he became known as the "lion of justice". the payment of queen's gold, that is of a mark of gold to the queen out of every hundred marks of silver paid, in the way of fine or other feudal incident, to the king, probably dates from henry i's reign. a woman could inherit a fief if she married. the primary way for a man to acquire control of land was to marry an heiress. if a man were in a lower station than she was, he had to pay for his new social status as well as have royal permission. a man could also be awarded land which had escheated to the king. if a noble woman wanted to hold land in her own right, she had to make a payment to the king. many widows bought their freedom from guardianship or remarriage from the king. women whose husbands were at war also ran the land of their husbands. barons were lords of large holdings of farmland called "manors". many of the lesser barons left their dark castles to live in semifortified stone houses, which usually were of two rooms with rug hangings for drafts, as well as the sparse furniture that had been common to the castle. there were shuttered windows to allow in light, but which also let in the wind and rain when open. the roof was of thatch or narrow overlapping wood shingles. the stone floor was strewn with hay and there was a hearth near the center of the floor, with a louvered smoke hole in the timber roof for escape of smoke. there were barns for grain and animals. beyond this area was a garden, orchard, and sometimes a vineyard. the area was circumscribed by a moat over which there was a drawbridge to a gatehouse. the smaller room was the lord and lady's bedroom. it had a canopied bed, chests for clothing, and wood frames on which clothes could be hung. life on the manor revolved around the larger room, or hall, where the public life of the household was passed. there, meals were served. the daily diet typically consisted of milk, soup, porridge, fish, vegetables, and bread. open hospitality accompanied this communal living. there was little privacy. manor household villeins carried the lord's sheaves of grain to the manor barn, shore his sheep, malted his grain, and chopped wood for his fire. at night some slept on the floor of the hall. others, who were cottars and bordars, had their own dwellings nearby. the manor house of lesser lords or knights was still built of wood, although it often had a stone foundation. about 35% of the land was arable land, about 25% was common pasture land (for grazing only) or meadow land (near a stream or river and used for hay or grazing), and about 15% was woodland. there were these types of land and wasteland on each manor. the arable land was allotted to the villeins in strips to equalize the best and worst land and their distance from the village where the villeins lived. there was three-way rotation of wheat or rye, oats or barley, and fallow land. cows, pigs, sheep, and fowl were kept. the meadow was allocated for hay for the lord's household and each villein's. the villeins held land of their lord for various services such as agricultural labor or raising domestic animals. the villeins worked about half of their time on their lord's fields [his demesne land], which was about a third of the farmland. this work was primarily to gather the harvest and to plough with oxen, using a yoke over their shoulders, and to sow in autumn and lent. they threshed grain on barn floors with flails cut from holly or thorn, and removed the kernels from the shafts by hand. work lasted from sunrise to sunset and included women and children. the older children could herd geese and pigs, and set snares for rabbits. the young children could gather nuts and berries in season and other wild edibles, and could pick up little tufts of wool shed by sheep. the old could stay in the hut and mind the children, keep the fire going and the black pot boiling, sew, spin, patch clothes, and cobble shoes. the old often suffered from rheumatism. many people had bronchitis. many children died of croup [inflammation of the respiratory passages]. life expectancy was probably below thirty-five. the villein retained his customary rights, his house and land and rights of wood and hay, and his right in the common land of his township. customary ways were maintained. the villeins of a manor elected a reeve to communicate their interests to their lord, usually through a bailiff, who directed the labor. sometimes there was a steward in charge of several of a lord's manors, who also held the manorial court for the lord. the steward held his land of the lord by serjeanty, which was a specific service to the lord. other serjeanty services were carrying the lord's shield and arms, finding attendants and esquires for knights, helping in the lord's hunting expeditions, looking after his hounds, bringing fuel, doing carpentry, and forging irons for ploughs. the woodward preserved the timber. the messer supervised the harvesting. the hayward removed any fences from the fields after harvest to allow grazing by cattle and sheep. the coward, bullard, and calvert tended the cows, bulls, and calves; the shepherd, the sheep; and the swineherds the pigs. the ponder impounded stray stock. there were varieties of horses: war horses, riding horses, courier horses, pack horses, and plough horses. the majority of manors were coextensive with a single village. the villeins lived in the village in one-room huts enclosed by a wood fence, hedge, or stone wall. in this yard was a garden of onions, leeks, mustard, peas, beans, parsley, garlic, herbs, and cabbage and apple, pear, cherry, quince, and plum trees, and beehives. the hut had a high-pitched roof thatched with reeds or straw and low eaves reaching almost to the ground. the walls are built of wood-framing overlaid with mud or plaster. narrow slits in the walls serve as windows, which have shutters and are sometimes covered with coarse cloth. the floor is dirt and may be covered with straw or rushes for warmth, but usually no hearth. in the middle is a wood fire burning on a hearthstone, which was lit by making a spark by striking flint and iron together. the smoke rose through a hole in the roof. at one end of the hut was the family living area, where the family ate on a collapsible trestle table with stools or benches. their usual food was beans and peas, oatmeal gruel, butter, cheese, vegetables, honey, rough bread made from a mixture of wheat, barley, and rye flour, herrings or other salt fish, and some salted or smoked bacon. butter had first been used for cooking and as a medicine to cure constipation and for puny children it could be salted down for the winter. the bread had been roasted on the stones of the fire; later there were communal ovens set up in villages. cooking was done over the fire by boiling in iron pots hung from an iron tripod, or sitting on the hot stones of the fire. they ate from wood bowls using a wood spoon. when they had fresh meat, it could be roasted on a spit. liquids were heated in a kettle. with drinking horns, they drank water, milk, buttermilk, apple cider, mead, ale made from barley malt, and bean and vegetable broth. they used jars and other earthenware, e.g. for storage of salt. they slept on straw mattresses or sacks on the floor or on benches. the villein regarded his bed area as the safest place in the house, as did people of all ranks, and kept his treasures there, which included his farm implements, as well as hens on the beams, roaming pigs, and stalled oxen, cattle, and horses, which were at the other end of the hut. fires were put out at night to guard against fire burning down the huts. the warmth of the animals then helped make the hut warm. around the room are a couple of chests to store salt, meal, flour, a broom made of birch twigs, some woven baskets, the distaff and spindle for spinning, and a simple loom for weaving. all clothes were homemade. they were often coarse, greasy wool and leather made from their own animals. the man wore a tunic of coarse linen embroidered on the sleeves and breast, around with he wore a girdle of rope, leather, or folded cloth. sometimes he also wore breeches reaching below the knee. the woman wore a loose short-sleeved gown, under which was a tight fitting garment with long loose sleeves, and which was short enough to be clear of the mud. if they wore shoes, they were clumsy and patched. some wore a hood-like cap. for really bad weather, a man wore on his head a hood with a very elongated point which could be wrapped around his neck. sometimes a short cape over the shoulders was attached. linen was too expensive for commoners. the absence of fresh food during the winter made scurvy prevalent; in the spring, people eagerly sought "scurvy grass" to eat. occasionally there would be an outbreak of a nervous disorder due to the ergot fungus growing in the rye used for bread. this manifested itself in apparent madness, frightening hallucinations, incoherent shouting, hysterical laughing, and constant scratching of itching and burning sensations. the villein and his wife and children worked from daybreak to dusk in the fields, except for sundays and holydays. he had certain land to farm for his own family, but had to have his grain milled at his lord's mill at the lord's price. he had to retrieve his wandering cattle from his lord's pound at the lord's price. he was expected to give a certain portion of his own produce, whether grain or livestock, to his lord. however, if he fell short, he was not put off his land. the villein, who worked the farm land as his ancestor ceorl had, now was so bound to the land that he could not leave or marry or sell an ox without his lord's consent. if the manor was sold, the villein was sold as a part of the manor. when his daughter or son married, he had to pay a "merchet" to his lord. he could not have a son educated without the lord's permission, and this usually involved a fee to the lord. his best beast at his death, or "heriot", went to his lord. if he wanted permission to live outside the manor, he paid "chevage" yearly. woodpenny was a yearly payment for gathering dead wood. sometimes a "tallage" payment was taken at the lord's will. the villein's oldest son usually took his place on his land and followed the same customs with respect to the lord. for an heir to take his dead ancestor's land, the lord demanded payment of a "relief", which was usually the amount of a year's income but sometimes as much as the heir was willing to pay to have the land. the usual aids were also expected to be paid. a large village also had a smith, a wheelwright, a millwright, a tiler and thatcher, a shoemaker and tanner, a carpenter wainwright and carter. markets were about twenty miles apart because a farmer from the outlying area could then carry his produce to the nearest town and walk back again in the daylight hours of one day. in this local market he could buy foodstuffs, livestock, household goods, fuels, skins, and certain varieties of cloth. the cloth was crafted by local weavers, dyers, and fullers. the weaver lived in a cottage with few and narrow windows with little furniture. he worked in the main, and sometimes the only, room. first the raw wool was washed with water at the front door to remove the grease. then its fibers were disentangled and made fine with hand cards with thistle teeth, usually by the children. then it was spun by a spinning wheel into thread, usually by the wife. on a double frame loom, a set of parallel threads was strung lengthwise. a device worked by a pedal lifted half of these threads --every other thread--while the other half remained in place. between the lifted threads and the stationary threads a shuttle was thrown by the weaver from one hand to another. then the threads which had remained stationary were raised by a second pedal and the shuttle thrown back. the shuttle carried a spool so that, as it moved, it left a thread behind it running crosswise or at right angles to the lengthwise threads and in and out between them. the lengthwise threads were called the "warp"; the shuttle thread was the "woof" or the "weft". in making cloth, it was the warp which, as the loom moved, took the worst beating. with the constant raising and lowering, these treads would wear and break, whereas the weft on which there was little strain remained intact. none of the cotton yarn which the old-fashioned wheels had spun was strong enough for warp. so it was necessary to use linen thread for the warp. since one loom could provide work for about six spinners, the weaver had his wool spun by other spinners in their cottages. sometimes the master weaver had an apprentice or workman working and living with him, who had free board and lodging and an annual wage. then a fuller made the cloth thick and dense by washing, soaping, beating, and agitating it, with the use of a community watermill which could be used by anyone for a fixed payment. the cloth dried through the night on a rack outside the cottage. the weaver then took his cloth, usually only one piece, to the weekly market to sell. the weavers stood at the market holding up their cloth. the cloth merchant who bought the cloth then had it dyed or dressed according to his requirements. its surface could be raised with teazleheads and cropped or sheared to make a nap. some cloth was sold to tailors to make into clothes. often a weaver had a horse for travel, a cow for milk, chickens for eggs, perhaps a few cattle, and some grazing land. butchers bought, slaughtered, and cut up animals to sell as meat. some was sold to cooks, who sold prepared foods. the hide was bought by the tanner to make into leather. the leather was sold to shoemakers and glovemakers. millers bought harvested grain to make into flour. flour was sold to bakers to make into breads. wood was bought by carpenters and by coopers, who made barrels, buckets, tubs, and pails. tilers, oilmakers and rope makers also bought raw material to make into finished goods for sale. wheelwrights made ploughs, harrows, carts, and later wagons. smiths and locksmiths worked over their hot fires. games with dice were sometimes played. in winter, youths iceskated with bones fastened to their shoes. they propelled themselves by striking the ice with staves shod with iron. on summer holydays, they exercised in leaping, shooting with the bow, wrestling, throwing stones, and darting a thrown spear. the maidens danced with timbrels. since at least 1133, children's toys included dolls, drums, hobby horses, pop guns, trumpets, and kites. the cold, indoors as well as outdoors, necessitated that people wear ample and warm garments. men and women of position dressed in long full cloaks reaching to their feet, sometimes having short full sleeves. the cloak generally had a hood and was fastened at the neck with a brooch. underneath the cloak was a simple gown with sleeves tight at the wrist but full at the armhole, as if cut from the same piece of cloth. a girdle or belt was worn at the waist. when the men were hunting or working, they wore gown and cloak of knee length. men wore stockings to the knee and shoes. the fashion of long hair on men returned. the nation grew with the increase of population, the development of towns, and the growing mechanization of craft industries. there were watermills for crafts and for supplying and draining water in all parts of the nation. in flat areas, slow rivers could be supplemented by creating artificial waterfalls, for which water was raised to the level of reservoirs. there were also some ironsmelting furnaces. coal mining underground began as a family enterprise. stone bridges over rivers could accommodate one person traveling by foot or by horseback and were steep and narrow. the wheelbarrow came into use to cart materials for building castles and cathedrals. merchants, who had come from the low end of the knightly class or high end of the villein class, settled around the open market areas, where main roads joined. they had plots narrow in frontage along the road and deep. their shops faced the road, with living space behind or above their stores. town buildings were typically part stone and part timber as a compromise between fire precautions and expense. towns, as distinct from villages, had permanent markets. as towns grew, they paid a fee to obtain a charter for self-government from the king giving the town judicial and commercial freedom. they were literate enough to do accounts. so they did their own valuation of the sum due to the crown so as not to pay the sheriff any more than that. these various rights were typically expanded in future times, and the towns received authority to collect the sum due to the crown rather than the sheriff. this they did by obtaining a charter renting the town to the burghers at a fee farm rent equal to the sum thus deducted from the amount due from the county. such a town was called a "borough" and its citizens or landholding freemen "burgesses". to be free of something meant to have exclusive rights and privileges with respect to it. selling wholesale could take place only in a borough. burgesses were free to marry. they were not subject to defense except of the borough. they were exempt from attendance at county and hundred courts. the king assessed a tallage [ad hoc tax] usually at ten per cent of property or income. in the boroughs, merchant and manufacturing guilds controlled prices and assured quality. the head officer of the guild usually controlled the borough, which excluded rival merchant guilds. a man might belong to more than one guild, e.g. one for his trade and another for religion. craft guilds grew up in the towns, such as the tanners at oxford, which later merged with the shoemakers into a cordwainers' guild. there were weavers' guilds in several towns, including london, which were given royal sanction and protection for annual payments (twelve pounds of silver for london. they paid an annual tribute and were given a monopoly of weaving cloth within a radius of several miles. guild rules covered attendance of the members at church services, the promotion of pilgrimages, celebration of masses for the dead, common meals, relief of poor brethren and sisters, the hours of labor, the process of manufacture, the wages of workmen, and technical education. henry standardized the yard as the length of his own arm. trades and crafts, each of which had to be licensed, grouped together by specialty in the town. cloth makers, dyers, tanners, and fullers were near an accessible supply of running water, upon which their trade depended. streets were often named by the trade located there, such as butcher row, pot row, cordwainer row, ironmonger row, wheeler row, and fish row. hirers of labor and sellers of wheat, hay, livestock, dairy products, apples and wine, meat, poultry, fish and pies, timber and cloth all had a distinct location. some young men were apprenticed to craftsmen to assist them and learn their craft. london had at least twenty wards, each governed by its own alderman. most of them were named after people. london was ruled by sixteen families linked by business and marriage ties. these businesses supplied luxury goods to the rich and included the goldsmiths [sold cups, dishes, girdles, mirrors, purses knives, and metal wine containers with handle and spout], vintners [wine merchants], mercers [sold textiles, haberdashery, combs, mirrors, knives, toys, spices, ointments, and potions], drapers, and pepperers, which later merged with the spicers to become the "grocers", skinners, tanners, shoemakers, woolmen, weavers, fishmongers, armorers, and swordsmiths. there were bakehouses at which one could leave raw joints of meat to be cooked and picked up later. these businesses had in common four fears: royal interference, foreign competition, displacement by new crafts, and violence by the poor and escaped villeins who found their way to the city. when a non-freeholder stayed in london he had to find for frankpledge, three sureties for good behavior. failure to do so was a felony and the ward would eject him to avoid the charge of harboring him with its heavy fine. the arrival of ships with cargoes from continental ports and their departure with english exports was the regular waterside life below london bridge. many foreign merchants lived in london. imports included timber, hemp, fish, and furs. there was a fraternal organization of citizens who had possessed their own lands with sac and soke and other customs in the days of king edward. there were public bathhouses, but they were disreputable. a lady would take an occasional bath in a half cask in her home. the church warned of evils of exposing the flesh, even to bathe. middlesex county was london's territory for hunting and farming. all london craft work was suspended for one month at harvest time. london received this charter for self-government and freedom from the financial and judicial organization of the county: "henry, by the grace of god, king of england, to the archbishop of canterbury and the bishops, abbots, earls, barons, justiciars, sheriffs and all his loyal subjects, both french and english, throughout the whole of england greeting. 1. be it known to you that i have granted middlesex to my citizens of london to be held on lease by them and their heirs of me and my heirs for 300 pounds paid by tale [yearly], upon these terms: that the citizens themselves [may] appoint a sheriff, such as they desire, from among themselves, and a justiciar, such as they desire, from among themselves, to safeguard the pleas of my crown [criminal cases] and to conduct such pleas. and there shall be no other justiciar over the men of london. 2. and the citizens shall not take part in any [civil] case whatsoever outside the city walls. 1) and they shall be exempt from the payment of scot and danegeld and the murder fine. 2) and none of them shall take part in trial by combat. 3) and if any of the citizens has become involved in a plea of the crown, he shall clear himself, as a citizen of london, by an oath which has been decreed in the city. 4) and no one shall be billeted [lodged in a person's house by order of the king] within the walls of the city nor shall hospitality be forcibly exacted for anyone belonging to my household or to any other. 5) and all the citizens of london and all their effects [goods] shall be exempt and free, both throughout england and in the seaports, from toll and fees for transit and market fees and all other dues. 6) and the churches and barons and citizens shall have and hold in peace and security their rights of jurisdiction [in civil and criminal matters] along with all their dues, in such a way that lessees who occupy property in districts under private jurisdiction shall pay dues to no one except the man to whom the jurisdiction belongs, or to the official whom he has placed there. 7) and a citizen of london shall not be amerced [fined by a court when the penalty for an offense is not designated by statute] to forfeiture of a sum greater than his wergeld, [hereby assessed as] 100 shillings, in a case involving money. 8) and further there shall be no miskenning [false plea causing a person to be summoned to court] in a husting [weekly court] or in a folkmote [meeting of the community], or in any other court within the city. 9) and the hustings [court] shall sit once a week on monday. 10) and i assure to my citizens their lands and the property mortgaged to them and the debts due to them both within the city and without. 11) and with regard to lands about which they have pled in suit before me, i shall maintain justice on their behalf, according to the law of the city. 12) and if anyone has exacted toll or tax from citizens of london, the citizens of london within the city shall [have the right to] seize [by process of law] from the town or village where the toll or tax was exacted a sum equivalent to that which the citizen of london gave as toll and hence sustained as loss. 13) and all those who owe debts to citizens shall pay them or shall clear themselves in london from the charge of being in debt to them. 14) but if they have refused to pay or to come to clear themselves, then the citizens to whom they are in debt shall [have the right to] seize [by process of law] their goods [including those in the hands of a third party, and bring them] into the city from the [town, village or] county in which the debtor lives [as pledges to compel appearance in court]. 15) and the citizens shall enjoy as good and full hunting rights as their ancestors ever did, namely, in the chilterns, in middlesex, and in surrey. witnessed at westminster." the above right not to take part in any case outside the city relieved london citizens from the burden of traveling to wherever the king's court happened to be, the disadvantage of not knowing local customs, and the difficulty of speaking in the language of the king's court rather than in english. the right of redress for tolls exacted was new because the state of the law was that the property of the inhabitants was liable to the king or superior lord for the common debt. newcastle-on-tyne was recognized by the king as having certain customs, so the following was not called a grant: "these are the laws and customs which the burgesses of newcastle upon tyne had in the time of henry king of england and ought to have. [1] burgesses can distrain [take property of another until the other performs his obligation] upon foreigners within, or without their own market, within or without their own houses, and within or without their own borough without the leave of the reeve, unless the county court is being held in the borough, and unless [the foreigners are] on military service or guarding the castle. [2] a burgess cannot distrain upon a burgess without the leave of the reeve. [3] if a burgess have lent anything of his to a foreigner, let the debtor restore it in the borough if he admits the debt, if he denies it, let him justify himself in the borough. [4] pleas which arise in the borough shall be held and concluded there, except pleas of the crown. [5] if any burgess be appealed [sued] of any plaint, he shall not plead without the borough, unless for default of [the borough] court. [6] nor ought he to answer without day and term, unless he have fallen into 'miskenning' [error in pleading], except in matters which pertain to the crown. [7] if a ship have put in at tynemouth and wishes to depart, the burgesses may buy what they will [from it]. [8] if a plea arise between a burgess and a merchant, it shall be concluded before the third ebb of the tide. [9] whatever merchandise a ship has brought by sea must be landed, except salt; and herring ought to be sold in the ship. [10] if any man have held land in burgage for a year and a day, lawfully and without claim, he shall not answer a claimant, unless the claimant have been without the realm of england, or a child not of age to plead. [11] if a burgess have a son, he shall be included in his father's freedom if he be with his father. [12] if a villein come to dwell in the borough, and dwell there a year and a day as a burgess, he shall abide altogether, unless notice has been given by him or by his master that he is dwelling for a term. [13] if any man appeal [sue] a burgess of any thing, he cannot do [trial by] battle with the burgess, but the burgess shall defend himself by his law, unless it be of treason, whereof he is bound to defend himself by [trial by] battle. [14] neither can a burgess do [trial by] battle against a foreigner, unless he first go out of the borough. [15] no merchant, unless he be a burgess, may buy [outside] the town either wool or leather or other merchandise, nor within the borough except [from] burgesses. [16] if a burgess incur forfeit, he shall give six ounces [10s.] to the reeve. [17] in the borough there is no merchet [payment for marrying off a daughter] nor heriot nor bloodwite [fine for drawing blood] nor stengesdint [fine for striking with a stick]. [18] every burgess may have his own oven and handmill if he will, saving the right of the king's oven. [19] if a woman be in forfeit for bread or beer, no one ought to interfere but the reeve. if she forfeit twice, she shall be chastised by her forfeit. if three times, let justice be done on her. [20] no one but a burgess may buy webs [woven fabrics just taken off the loom] to dye, nor make nor cut them. [21] a burgess may give and sell his land and go whither he will freely and quietly unless there be a claim against him." the nation produced sufficient iron, but a primitive steel [iron with carbon added] was imported. it was scarce and expensive. steel was used for tools, instruments, weapons and armor. ships could carry about 300 people. navigation was by simple charts that included wind direction for different seasons and the direction of north. the direction of the ship could be generally determined when the sky was clear by the position of the sun during the day or the north star during the night. plays about miracles wrought by holy men or saints or the sufferings and fortitude of martyrs were performed, usually at the great church festivals. most nobles could read, though writing was still a specialized craft. there were books on animals, plants, and stones. the lives of the saints as told in the book "the golden legend" were popular. the story of the early king arthur was told in the book "the history of the kings of england". the story at this time stressed arthur as a hero and went as follows: arthur became king at age 15. he had an inborn goodness and generosity as well as courage. he and his knights won battles against foreign settlers and neighboring clans. once, he and his men surrounded a camp of foreigners until they gave up their gold and silver rather than starve. arthur married guenevere and established a court and retinue. leaving britain in the charge of his nephew modred, he fought battles on the continent for land to give to his noblemen who did him service in his household and fought with him. when arthur returned to britain, he made battle with his nephew modred who had crowned himself king. arthur's knight gawain, the son of his sister, and the enemy modred were killed and arthur was severely wounded. arthur told his kinsman constantine to rule britain as king in his place. the intellectual world included art, secular literature, law, and medicine. there were about 90 physicians. the center of government was a collection of tenants-in-chief, whose feudal duty included attendance when summoned, and certain selected household servants of the king. the exchequer became a separate body. the payments in kind, such as grain or manual services, from the royal demesnes had been turned into money payments. the great barons made their payments directly to the exchequer. the income from royal estates was received by the exchequer and then commingled with the other funds. each payment was indicated by notches on a stick, which was then split so that the payer and the receiver each had a half showing the notches. the exchequer was the great school for training statesmen, justices, and bishops. the chancellor managed the domestic matters of the crown's castles and lands. the great offices of state were sold for thousands of pounds, which caused their holders to be on their best behavior for fear of losing their money by being discharged from office. one chancellor paid henry about 3000 pounds for the office. henry brought sheriffs under his strict control, free from influence by the barons. he maintained order with a strong hand, but was no more severe than his security demanded. forests were still retained by kings for their hunting of boars and stags. a master forester maintained them. the boundaries of the royal forests were enlarged. they comprised almost one-third of the kingdom. certain inhabitants thereof supplied the royal foresters with meat and drink and received certain easements and rights of common therein. the forest law reached the extreme of severity and cruelty under henry i. punishments given included blinding, emasculation, and execution. offenders were rarely allowed to substitute a money payment. when fines were imposed they were heavy. a substantial number of barons and monasteries were heavily in debt to the jews. the interest rate was 43% (2d. per pound per week). the king taxed the jews at will. the law henry restored the death penalty (by hanging) for theft and robbery, but maintained william i's punishment of mutilation by blinding and severing of limbs for other offenses, for example, bad money. he decreed in 1108 that false and bad money should be amended, so that he who was caught passing bad denarii should not escape by redeeming himself but should lose his eyes and members. and since denarii were often picked out, bent, broken, and refused, he decreed that no denarius or obol, which he said were to be round, or even a quadrans, if it were whole, should be refused. (money then reached a higher level of perfection, which was maintained for the next century.) the forest law stated that: "he that doth hunt a wild beast and doth make him pant, shall pay 10 shillings: if he be a freeman, then he shall pay double. if he be a bound man, he shall lose his skin." a "verderer" was responsible for enforcing this law, which also stated that: "if anyone does offer force to a verderer, if he be a freeman, he shall lose his freedom, and all that he hath. and if he be a villein, he shall lose his right hand." further, "if such an offender does offend so again, he shall lose his life." a wife's dower is one-third of all her husband's freehold land, unless his endowment of her at their marriage was less than onethird. counterfeiting law required that "if any one be caught carrying false coin, the reeve shall give the bad money to the king however much there is, and it shall be charged in the render of his farm [payment] as good, and the body of the offender shall be handed over to the king for judgment, and the serjeants who took him shall have his clothes." debts to townsmen were recoverable by this law: "if a burgess has a gage [a valuable object held as security for carrying out an agreement] for money lent and holds this for a whole year and a day, and the debtor will not deny the debt or deliver the gage, and this is proved, the burgess may sell the gage before good witnesses for as much as he can, and deduct his money from the sum. if any money is over he shall return it to the debtor. but if there is not enough to pay him, he shall take distress again for the amount that is lacking." past due rent in a borough was punishable by payment of 10s. as fine. judicial activity encouraged the recording of royal legislation in writing which both looked to the past and attempted to set down law current in henry's own day. the "liberi quadripartitus" aimed to include all english law of the time. this showed an awareness of the ideal of written law as a statement of judicial principles as well as of the practice of kingship. in this way, concepts of roman law used by the normans found their way into english law. church law provided that only consent between a man and woman was necessary for marriage. there needn't be witnesses, ceremony, nor consummation. consent could not be coerced. penalties in marriage agreements for not going through with the marriage were deemed invalid. villeins and slaves could marry without their lords' or owners' permission. a couple living together could be deemed married. persons related by blood within certain degrees, which changed over time, of consanguinity were forbidden to marry. this was the only ground for annulment of a marriage. a legal separation could be given for adultery, cruelty, or heresy. annulment, but not separation, could result in remarriage. fathers were usually ordered to provide some sustenance and support for their illegitimate children. the court punished infanticide and abortion. counterfeiters of money, arsonists, and robbers of pilgrims and merchants were to be excommunicated. church sanctuary was to be given to fugitives of violent feuds until they could be given a fair trial. judicial procedure courts extant now are the royal court, the king's court of the exchequer, county courts, and hundred courts, which were under the control of the king. his appointed justices administered justice in these courts on regular circuits. the sheriff now only produced the proper people and preserved order at the county courts and presided over the nonroyal pleas and hundred courts. he impaneled recognitors, made arrests, and enforced the decisions of the royal courts. also there are manor courts, borough courts, and ecclesiastical courts. in the manor courts, the lord's reeve generally presided. the court consisted of the lord's vassals and declared the customs and law concerning such offenses as failure to perform services and trespass on manorial woods, meadow, and pasture. the king's royal court heard issues concerning the crown and breaches of the king's peace, which included almost all criminal matters. the most serious offenses: murder, robbery, rape, abduction, arson, treason, and breach of fealty, were now called felonies. other offenses were: housebreaking, ambush, certain kinds of theft, premeditated assault, and harboring outlaws or excommunicants. henry personally presided over hearings of important legal cases. he punished crime severely. offenders were brought to justice not only by the complaint of an individual or local community action, but by official prosecutors. a prosecutor was now at trials as well as a justice. trial is still by compurgation. trial by combat was relatively common. these offenses against the king placed merely personal property and sometimes land at the king's mercy. thus the crown increased the range of offenses subject to its jurisdiction and arrogated to itself profits from the penalties imposed. a murderer could be given royal pardon from the death penalty so that he could pay compensation to the relatives. the royal court also heard these offenses against the king: fighting in his dwelling, contempt of his writs or commands, encompassing the death or injury of his servants, contempt or slander of the king, and violation of his protection or his law. it heard these offenses against royal authority: complaints of default of justice or unjust judgment, pleas of shipwrecks, coinage, treasure trove [money buried when danger approached], forest prerogatives, and control of castle building. slander of the king, the government, or high officials was punishable as treason, felony, misprision of treason, or contempt, depending on the rank and office of the person slandered and the degree of guilt. henry began the use of writs to intervene in civil matters, such as inquiry by oath and recognition of rights as to land, the obligations of tenure, the legitimacy of heirs, and the enforcement of local justice. the crown used its superior coercive power to enforce the legal decisions of other courts. these writs allowed people to come to the royal court on certain issues. there was a vigorous interventionism in the land law subsequent to appeals to the king in landlord-tenant relations, brought by a lord or by an undertenant. assizes [those who sit together] of local people who knew relevant facts were put together to assist the court. henry appointed some locally based justices, called justiciars. also, he sent justices out on eyres [journeys] to hold assizes. this was done at special sessions of the county courts, hundred courts, and manor courts. records of the verdicts of the royal court were sent with these itinerant justices for use as precedent in these courts. thus royal authority was brought into the localities and served to check baronial power over the common people. these itinerant justices also transacted the local business of the exchequer in each county. henry created the office of chief justiciar, which carried out judicial and administrative functions. the royal court retained cases of gaol delivery [arrested person who had been held in gaol was delivered to the court] and amercements. it also decided cases in which the powers of the popular courts had been exhausted or had failed to do justice. the royal court also decided land disputes between barons who were too strong to submit to the county courts. the king's court of the exchequer reviewed the accounts of sheriffs, including receipts and expenditures on the crown's behalf as well as sums due to the treasury, located still at winchester. these sums included rent from royal estates, the danegeld land tax, the fines from local courts, and aid from baronial estates. its records were the "pipe rolls", so named because sheets of parchment were fastened at the top, each of which dropped into a roll at the bottom and so assumed the shape of a pipe. the county and hundred courts assessed the personal property of individuals and their taxes due to the king. the county court decided land disputes between people who had different barons as their respective lords. the free landholders were expected to attend county, hundred, and manor courts. they owed "suit" to it. the suitors found the dooms [laws] by which the presiding officer pronounced the sentence. the county courts heard cases of theft, brawling, beating, and wounding, for which the penalties could be exposure in the pillory or stocks. the pillory held an offender's head and hands in holes in boards, and the stocks held one's hands and feet. here the public could scorn and hit the offender or throw fruit, mud, and dead cats at him. for sex offenders and informers, stones were usually thrown. sometimes a person was stoned to death. the county courts met twice yearly. if an accused failed to appear after four successive county courts, he was declared outlaw at the fifth and forfeited his civil rights and all his property. he could be slain by anyone at will. the hundred court met once a month to hear neighborhood disputes, for instance concerning pastures, meadows and harvests. usually present was a priest, the reeve, four representative men, and sometimes the lord or his steward in his place. sometimes the chief pledges were present to represent all the men in their respective frankpledges. the bailiff presided over all these sessions except two, in which the sheriff presided over the full hundred court to take the view of frankpledge, which was required for those who did not have a lord to answer for him. the barons held court on their manors at a "hallmote" for issues arising between people living on the manor, such as bad ploughing on the lord's land or letting a cow get loose on the lord's land, and land disputes. this court also made the decision of whether a certain person was a villein or freeman. the manor court took over issues which had once been heard in the vill or hundred court. the baron charged a fee for hearing a case and received any fines he imposed, which amounted to significant "profits of justice". boroughs held court on trading and marketing issues in their towns such as measures and weights, as well as issues between people who lived in the borough. the borough court was presided over by a reeve who was a burgess as well as a royal official. wealthy men could employ professional pleader-attorneys to advise them and to speak for them in a court. the ecclesiastical courts dealt, until the time of henry viii, with family matters such as marriage, annulments, marriage portions, legitimacy, undue wifebeating, child abuse, orphans, bigamy, adultery, incest, fornication, personal possessions, defamation, slander which did not cause material loss (and therefore had no remedy in the temporal courts), libel, perjury, usury, mortuaries, sacrilege, blasphemy, heresy, tithe payments, church fees, certain offenses on consecrated ground, and breaches of promises under oath, e.g. to pay a debt, provide services, or deliver goods. they decided inheritance and will issues which did not concern land, but only personal property. this developed from the practice of a priest usually hearing a dying person's will as to the disposition of his goods and chattel when he made his last confession. it provided guardianship of infants during probate of their personal property. trial was basically by compurgation, with oath-helpers swearing to or against the veracity of the alleged offender's oath. an alleged offender could be required to answer questions under oath, thus giving evidence against himself. the ecclesiastical court's penalties were intended to reform and determined on a case-by-case basis. the canon law of christendom was followed, without much change by the english church or nation. penalties could include confession and public repentance of the sin before the parish, making apologies and reparation to persons affected, public embarrassment such as being dunked in water (e.g. for women scolds), walking a route barefoot and clad only in one's underwear, whippings, extra work, fines, and imprisonment in a "penitentiary" to do penance. the ultimate punishment was excommunication with social ostracism. then no one could give the person drink, food, or shelter and he could speak only to his spouse and servants. excommunication included denial of the sacraments of baptism, penance, mass, and extreme unction [prayers for spiritual healing] at death; which were necessary for salvation of the soul; and the sacrament of confirmation of one's belief in the tenets of christianity. a person could also be denied a christian burial in consecrated ground. however, the person could still marry and make a will. the king's court could order a recalcitrant excommunicant imprisoned until he satisfied the claims of the church. excommunication was usually imposed for failure to obey an order or showing contempt of the law or of the courts. it required a hearing and a written reason. if this measure failed, it was possible to turn the offender over to the state for punishment, e.g. for blasphemy or heresy. blasphemy [speaking ill of god] was thought to cause god's wrath expressed in famine, pestilence, and earthquake and was usually punished by a fine or corporal punishment, e.g. perforation or amputation of the tongue. it was tacitly understood that the punishment for heresy was death by burning. there were no heresy cases up to 1400 and few after that. the state usually assured itself the sentence was just before imposing it. the court of the rural dean was the ecclesiastical parallel of the hundred court of secular jurisdiction and usually had the same land boundaries. the archdeacons, who had been ministers of the bishop in all parts of his diocese alike, were now each assigned to one district, which usually had the same boundaries as the county. henry acknowledged occasional appellate authority of the pope, but expected his clergy to elect bishops of his choice. there was a separate judicial system for the laws of the forest. there were itinerant justices of the forests and four verderers of each forest county, who were elected by the votes of the full county court, twelve knights appointed to keep vert [everything bearing green leaves] and venison, and foresters of the king and of the lords who had lands within the limits of the forests. every three years, the officers visited the forests in preparation for the courts of the forest held by the itinerant justices. the inferior courts were the woodmote, held every forty days, and the swein [freeman or freeholder within the forest] mote, held three times yearly before the verderers as justices, in which all who were obliged to attend as suitors of the county court to serve on juries and inquests were to be present. chapter 6 the times: 1154-1215 king henry ii and queen eleanor, who was twelve years older, were both intelligent, educated, energetic, well-traveled, and experienced in affairs of state. henry was the first norman king to be fully literate and he learned latin. he had many books and maintained a school. eleanor often served as regent during henry's reign and the reigns of their two sons: richard i, the lionhearted, and john. she herself headed armies. henry ii was a modest, courteous, and patient man with an astonishing memory and strong personality. he was indifferent to rank and impatient of pomp to the point of being careless about his appearance. he usually dressed in riding clothes and was often unkempt. he was thrifty, but generous to the poor. he was an outstanding legislator and administrator. henry ii took the same coronation oath as edward the confessor regarding the church, laws, and justice. not only did he confirm the charter of his grandfather henry i, but he revived and augmented the laws and institutions of his grandfather and developed them to a new perfection. almost all legal and fiscal institutions appear in their first effective form during his reign. for instance, he institutionalized the assize for a specific function in judicial proceedings, whereas before it had been an ad hoc body used for various purposes. the term "assize" here means the sitting of a court or council. it came to denote the decisions, enactments, or instructions made at such. henry's government practiced a strict economy and he never exploited the growing wealth of the nation. he abhorred bloodshed and the sacrifice of men's lives. so he strove diligently to keep the peace, when possible by gifts of money, but otherwise with armed force. robbers were hanged and any man who raped a woman was castrated. foreign merchants with precious goods could journey safely through the land from fair to fair. these fairs were usually held in the early fall, after harvesting and sheep shearing. foreign merchants bought wool cloth and hides. frankpledge was revived, now applying to the unfree and villeins. no stranger could stay overnight (except for one night in a borough), unless sureties were given for his good behavior. a list of such strangers was to be given to itinerant justices. henry had character and the foresight to build up a centralized system of government that would survive him. he learned about the counties' and villages' varying laws and customs. then, using the model of roman law, he gave to english institutions that unity and system which in their casual patchwork development had been lacking. henry's government and courts forged permanent direct links between the king and his subjects which cut through the feudal structure of lords and vassals. he developed the methods and structure of government so that there was a great increase in the scope of administrative activity without a concurrent increase of personal power of the officials who discharged it. the government was self-regulating, with methods of accounting and control which meant that no official, however exalted, could entirely escape the surveillance of his colleagues and the king. at the same time, administrative and judicial procedures were perfected so that much which had previously required the king's personal attention was reduced to routine. the royal household translated the royal will into action. in the early 1100s, there had been very little machinery of central government that was not closely associated with the royal household. there was a chief justiciar for legal matters and a treasurer. royal government was largely built upon what had once been purely domestic offices. kings had called upon their chaplains to pen letters for them. by henry ii's reign, the chancery was a highly efficient writing office through which the king's will was expressed in a flow of writs, and the chancellor an important and highly rewarded official, but he was still responsible for organizing the services in the royal chapel. similarly, the chamberlains ran the household's financial departments. they arranged to have money brought in from a convenient castle treasury, collected money from sheriffs or the king's debtors, arranged loans with the usurers, and supervised the spending of it. it was spent for daily domestic needs, the king's almsgiving, and the mounting of a military campaign. but they were still responsible for personal attendance upon the king in his privy chamber, taking care of his valuable furs, jewels, and documents, and changing his bed linens. there were four other departments of the household. the steward presided over the hall and kitchens and was responsible for supplying the household and guests with food supplies. the butler had duties in the hall and cellars and was responsible for the supply of wine and ale. the marshall arranged lodgings for the king's court as it moved about from palaces to hunting lodges, arranged the pay of the household servants, and supervised the work of ushers, watchmen, fire tenders, messengers and huntsmen. the constable organized the bodyguard and escorts, arranged for the supply of castles, and mustered the royal army. the offices of steward, constable, chamberlain, butler were becoming confined to the household and hereditary. the justiciar, chancellor, and treasurer are becoming purely state offices and are simply sold or rented, until public pressure resulted in a requirement of ability. henry's council included all his tenants-in-chief, which included archbishops, bishops, abbots, priors, earls, barons, knights and socage tenants of the crown, whether they made payments directly to him or through a sheriff. the higher ones were served with a writ addressed to them personally. knights and below were summoned by a general writ to the sheriff. henry brought order and unity by making the king's royal court the common court of the land. its purpose was to guard the king's peace by protecting all people of free status throughout the nation and correct the disparity in punishments given by local courts. heretofore, the scope of the king's peace had varied to cover as little as the king's presence, his land, and his highway. the royal demesne had shrunk to about 5% of the land. the common law for all the nation was established by example of the king's royal court. henry erected a basic, rational framework for legal processes which drew from tradition but lent itself to continuous expansion and adaptation. a system of writs originated well-defined actions in the royal courts. each court writ had to satisfy specific conditions for this court to have jurisdiction over an action or event. this system determined the royal court's jurisdiction over the church, lords, and sheriffs. it limited the jurisdiction of all other courts and subordinated them to the royal court. inquests into any misdeeds of sheriffs were held, which could result in their dismissal. henry and eleanor spoke many languages and liked discussing law, philosophy, and history. so they gathered wise and learned men about them, who became known as courtiers, rather than people of social rank. they lived in the great and strong tower of london, which had been extended beyond the original white tower, as had other castles, so that the whole castle and grounds were defended instead of just the main building. the tower of london was in the custody of one of the two justiciars. on the west were two strongly fortified castles surrounded by a high and deeply entrenched wall, which had seven double gates. towers were spaced along the north wall and the thames river flowed below the south wall. to the west was the city, where royal friends had residences with adjoining gardens near the royal palace at westminster. the court was a center of culture as well as of government. the game of backgammon was played. people wore belts with buckles, usually brass, instead of knotting their belts. london extended about a mile along the thames and about half a mile inland. it had narrow twisting lanes, some with a ditch down the middle for water runoff. most of its houses were two stories, the ground floor having booths and workshops, and the upper floor living space. most of the houses were wooden structures. the richer merchants' and knights' houses were built of stone. walls between houses had to be stone to a height of 16 feet and thatched roofs were banned because there had been many fires. there was poor compliance, but some roofs were tiled with red brick tiles. the population was about 40,000. there were over 126 churches for public worship, thirteen monasteries (including nunneries), and st. paul's cathedral. all were built of stone. the churches gave a place of worship for every 300 inhabitants and celebrated feast days, gave alms and hospitality to strangers, confirmed betrothals or agreements of marriage, celebrated weddings, conducted funerals, and buried the dead. the synod of westminster of 1175 prescribed that all marriages were to be performed by the church. church law required a warning prior to suspension or excommunication. monastic, cathedral, and parish schools taught young boys grammar so they could sing and read in church services. nuns taught girls. fish but no meat was eaten on fridays. there was dark rye bread and expensive white wheat bread. vegetables included onions, leeks, and cabbage. fruits included apples, pears, plums, cherries, and strawberries. water was obtained from streams running through the town to the thames and from springs. only the rich, palaces, and churches could afford beeswax candles; others had homemade tallow [cow or sheep fat] candles which smelled and gave off smoke. most people washed their bodies. even the poor had beds and bed clothes. the beds were often shared. few babies survived childhood. if a man reached 30, he could expect to live until age 50. thousands of londoners died during a hot summer from fevers, plague and the like. in london, bells heralded the start and finish of all organized business. the sellers of merchandise and hirers of labor were distributed every morning into their several localities according to their trade. vendors, craftsmen, and laborers had their customary places. some vendors walked the streets announcing their wares for sale. there were craft guilds of bakers, butchers, cloth workers, and saddlers, as well as of weavers. vendors on the thames river bank sold cooked fish caught from the river and wine from ships and wine cellars. cook shops sold roasted meats covered with hotly spiced sauces. london bridge was built of stone for the first time. it was supported by a series of stone arches standing on small man-made islands. it had such a width that a row of wood houses and a chapel was built on top of it. in the spring it was impassable by ships because the flow of water under it varied in height on either side of the bridge by several feet at half tide. the bridge had the effect of slowing down the flow upstream, which invited wherries and rowboats and stately barges of the nobility. in winters in which it froze over, there was ice skating, ice boating, and fishing through holes in the ice. outside each city gate were clusters of ragged buildings, small monasteries and hostelries, groups of huntsmen's kennels, and fencing schools. outside one of the gates, a horse market was held every week. horses wore horseshoes made of iron or of a crude steel. from the southwest gate of the city along the north river bank toward westminster, there was a gradually extending line of rich men's mansions and bishops' palaces. on the southern bank of the thames river was growing the disorderly suburb of southwark, with fishermen's and boatmens' hovels, and taverns and brothels that were frequented by drunkards, rakes, and whores. on the north side of the city was a great forest with fields and wells where students and other young men from the city took walks in the fresh evening air. in some fields, country folk sold pigs, cows, oxen and sheep. mill wheels turned at various streams. near london in the country was a glass factory. at sunset, the gates of london were closed for the night. all taverns had to be closed, all lights put out, and all fires banked or covered when the bell of the church of st. martin le grand rang at 9:00 p.m. anyone found on the streets after this curfew could be arrested. gangs of young nobles or gangs of thieves, cutpurses, and looters roamed the streets after dark and sometimes rioted. offenders were often beheaded and their heads placed on spikes on london bridge. men in london had begun weaving cloth, which formerly had been done by women. some of the cloth was exported. the weavers guild of london received a charter by the king in 1155, the first granted to any london craft: "know that i have conceded to the weavers of london to hold their guild in london with all the liberties and customs which they had in the time of king henry [i], my grandfather; and that none may intermeddle with the craft within the city, nor in southwark, nor in other places pertaining to london except through them and except he be in their guild, otherwise than was accustomed to be done in the time of king henry, my grandfather ...so that each year they render thence to me two marks [26s.8d.] of gold at the feast of st. michael. and i forbid that any shall do injury or contumely to them on this account under penalty of 10 pounds [200s.]. witness t[homas], chancellor, and warinus, son of gerard, chamberlain, at winchester." the liberties obtained were: 1) the weavers may elect bailiffs to supervise the work of the craft, to punish defaulters, and to collect the ferm [amount owed to the king]. the bailiffs were chosen from year to year and swore before the mayor of london to do and keep their office well and truly. 2) the bailiffs may hold court from week to week on pleas of debt, agreements, covenants [promises for certain performance], and minor trespasses. 3) if any of the guild members are sued in any other court on any of the above pleas, the guild may challenge that plea to bring it to the guild court. 4) if any member is behind in his share of the payment to the king, the bailiffs may distrain his loom until he has paid this. paying an annual payment freed the weavers from liability to inconsequent royal fines. failure to make this payment promptly might have led to loss of the right, hence the rigorous penalty of distraint upon the looms of individual weavers who fell into arrears. the weavers' guild punished members who used bad thread in their weaving or did defective weaving by showing the default to the mayor, with opportunity for the workman to make entreaty, and the mayor and twelve members of the guild then made a verdict of amercement of 1/2 mark [6s.8d.] and the workman of the cloth was also punished by the guild bailiffs according to guild custom. the weavers' guild tradition of brotherliness among members meant that injury to a fellow weaver incurred a severe penalty. if a weaver stole or eloigned [removed them to a distance where they were unreachable] any other weaver's goods falsely and maliciously, then he was dismissed from the guild and his loom was taken by the guild to fulfill his portion of the annual payment to the king. the weavers were allowed to buy and to sell in london freely and quietly. they had all the rights of other freemen of the city. thus from the middle of the 1100s, the weavers enjoyed the monopoly of their craft, rights of supervision which ensured a high standard of workmanship, power to punish infractions of their privileges, and full control of their members. in this they stand as the prototype of english medieval guilds. these rights represented the standard which all bodies of craftsmen desired to attain. the right of independent jurisdiction was exceptional. in henry ii's charter to london, london did not retain its right to appoint its own sheriff and justice given by henry i. london's chief magistrate was the mayor, who was appointed by the king, until 1191. then the mayor was elected yearly by the aldermen of the city wards and approved by the king. he was typically a rich prince chosen by the barons and chief merchants of london. the commoners had no voice in his selection, but they could still approve or disapprove of the actions of the city government at ward and folk motes. at certain periods, a king asserted royal power over the selection of mayor and governance of the city. there were three ways to become a citizen of london: being the son of a citizen, apprenticeship in a craft for seven years, and purchase of citizenship. london and westminster growth led to their replacing winchester as the capital. st. barthomew infirmary was established in london for the care of sick pilgrims traveling to the shrine of becket in canterbury. it had been inspired by a monk who saw a vision of st. barthomew telling him to build a church and an infirmary. trading was facilitated by the stabilization of the amount of silver metallic content of the english coinage, which was called "sterling" [strong] silver. the compass, a magnetic lodestone [leading stone] needle mounted on a cork and floated in a bowl of water, assisted the navigation of ships. with it, one could tell the general direction of a ship when the skies were cloudy as well as clear. and one could generally track one's route by using the direction and speed of travel to calculate one's new position. london became a major trading center for foreign goods from many lands. about 5% of the knights were literate. wealthy men sent their sons to school in monasteries to prepare them for a livelihood in a profession or in trade or to the town of oxford, whose individual scholars had migrated from paris and had attracted disciples for a long time. these schools grew up around st. mary's church, but had not been started by the church as there was no cathedral school in oxford. oxford had started as a burh and had a royal residence and many tradesmen. it was given its basic charter in 1155 by the king. this confirmed to it all the customs, laws and liberties [rights] as those enjoyed by london. it became a model charter for other towns. bachelors at oxford studied the arts of grammar, rhetoric, and logic, and then music, arithmetic, geometry, and astronomy, until they mastered their discipline and therefore were authorized to teach it. teaching would then provide an income sufficient to support a wife. the master of arts was analogous to the master craftsman of a guild. from 1190, the civil law was studied, and shortly thereafter, canon law. later came the study of medicine. the use of paper supplemented the use of parchment for writing. irregular edged paper was made from linen, cotton, straw, and/or wood beaten to a pulp and then spread out over a wire mesh to dry. theologicians taught that the universe was made for the sake and service of man, so man was placed at the center of the universe. man was made for the sake and service of god. every freeman holding land of a lord gave homage and fealty to him, swearing to bear him faith of the tenement held and to preserve his earthly honor in all things, saving the faith owed to the king. homage was done for lands, for free tenements, for services, and for rents precisely fixed in money or in kind. homage could be done to any free person, male or female, adult or minor, cleric or layman. a man could do several homages to different lords for different fees, but there had to be a chief homage to that lord of whom he held his chief tenement. homage was not due for dower, from the husband of a woman to whom a tenement was given as a marriage portion, for a fee given in free alms, or until the third heir, either for free maritagium [a marriage portion which is given with a daughter in marriage, that is not bound to service] or for the fee of younger sisters holding of the eldest. all fiefs to be inherited by the eldest son had to be intact. every lord could exact fealty from his servants. in this era, the english national race and character was formed. only a few barons still had lands in normandy. stories of good king arthur were popular and set ideals for behavior and justice in an otherwise barbaric age where force was supreme. his last battle in which he lay wounded and told a kinsman to rule in his place and uphold his laws was written in poem ("layamon's brut"). romantic stories were written and read in english. the custom of "bundling" was started by ladies with their knights, who would lie together in bed without undressing and with one in a sack the top of which was tied around his neck, as part of a romantic courtship. wealthy men often gave their daughters dowries in case they were widowed. this might be matched by a marriage settlement by a prospective husband. intermarriage had destroyed any distinction of normans by look or speech alone, except for the anglo-saxon manor villeins, who worked the farm land and composed about two-thirds of the population. villeins were bound to the land and could, on flight, be brought back to it. they could not give homage, but could give fealty. a villein had the equipment to farm, fish, make cheese, keep poultry, brew beer, hedge, and cut wood. although the villeins could not buy their freedom or be freed by their lord, they became less numerous because of the preference of landholders for tenants motivated to perform work by potential loss of tenure. also, the crown's protection of all its subjects in criminal matters blurred the distinction between free and unfree men. the boroughs were dominated by lords of local manors, who usually had a house in the borough. similarly, burgesses usually had farmland outside the borough. many boroughs were granted, by the king or manor lord, the right to have a common seal for the common business of the town. some boroughs were given the authority to confer freedom on the villein by enrolling him in their guild or allowing him to stay in the borough for a year and a day. the guilds met frequently in their drinking halls and drew up regulations for the management of their trade. each borough was represented by twelve reputable burgesses. each vill was represented by a reeve and four reputable men. certain towns sponsored great seasonal fairs for special goods, such as cloth. about 5% of the population lived in towns. in the early 1180s, the horizontal-axle windmill was invented, probably in eastern england, on the analogy of the horizontal-axle watermill. it was very useful in flat areas where streams were too slow for a watermill unless a dam were built. but a dam often flooded agricultural land. some watermill wheels were moved by tidal currents. london guilds of craftsmen such as weavers, fullers, bakers, loriners (makers of bits, spurs, and metal mountings of bridles and saddles), cordwainers (makers of leather goods such as shoes), pepperers, and goldsmiths were licensed by the king, for which they paid him a yearly fee. there were also five bridge guilds (probably raising money for the future construction of london bridge in stone) and st. lazarus' guild. the wealthy guilds, which included the goldsmiths, the pepperers, and three bridge guilds had landholding members who had been thegns or knights and now became a class of royal officials: the king's minters, his chamberlain, his takers of wines, his collectors of taxes. the weavers of oxford paid 27s. [two marks] to have a guild. the shoemakers paid 67s. [five marks]. in 1212, master carpenters, masons, and tilers made 3d. per day, their servers (the journeymen of a later time) made 11/2 d., free stone carvers 21/2 d., plasterers and daubers, diggers and sievers less. all received food in addition or 11/2 d. in its stead. sandwich was confirmed in its port rights by this charter: "henry ii to his sheriff and bailiffs of kent, greeting. i will and order that the monks of the holy trinity of canterbury shall have fully all those liberties and customs in sandwich which they had in the time of king henry my grandfather, as it was adjudged in pursuance of his command by the oath of twelve men of dover and twelve men of sandwich, to wit, that the aforesaid monks ought to have the port and the toll and all maritime customs in the same port, on either side of the water from eadburge gate as far as markesfliete and a ferryboat for passage. and no man has there any right except they and their ministers. wherefore i will and firmly command you and the men of sandwich that ye cause the aforesaid monks to have all their customs both in the port and in the town of sandwich, and i forbid any from vexing them on this account." "and they shall have my firm peace." henry gave this charter to the town of bristol in 1164: "know ye, that i have granted to my burgesses of bristol, that they shall be quit both of toll [a reasonable sum of money or portion of the thing sold, due to the owner of the fair or market on the sale of things tollable therein. it was claimed by the lord of the fee where the fair or market was held, by virtue of a grant from the crown either ostensible or presumed] and passage [money paid for crossing a river or for crossing the sea as might be due to the crown] and all custom [customary payments] throughout my whole land of england, normandy, and wales, wherever they shall come, they and their goods. wherefore i will and strictly command, that they shall have all their liberties and acquittances and free customs fully and honorable, as my free and faithful men, and that they shall be quit of toll and passage and of every other customs: and i forbid any one to disturb them on this account contrary to this my charter, on forfeiture of ten pounds [200s.]." john, when he was an earl and before he became king, granted these liberties to bristol about 1188: 1) no burgess may sue or be sued out of bristol. 2) the burgesses are excused from the murder fine (imposed by the king or lord from the hundred or town where the murder was committed when the murderer had not been apprehended). 3) no burgess may wage duel [trial by combat], unless sued for death of a stranger. 4) no one may take possession of a lodging house by assignment or by livery of the marshall of the earl of gloucester against the will of the burgesses (so that the town would not be responsible for the good behavior of a stranger lodging in the town without first accepting the possessor of the lodging house). 5) no one shall be condemned in a matter of money, unless according to the law of the hundred, that is, forfeiture of 40s. 6) the hundred court shall be held only once a week. 7) no one in any plea may argue his cause in miskenning. 8) they may lawfully have their lands and tenures and mortgages and debts throughout my whole land, [from] whoever owes them [anything]. 9) with regard to debts which have been lent in bristol, and mortgages there made, pleas shall be held in the town according to the custom of the town. 10) if any one in any other place in my land shall take toll of the men of bristol, if he does not restore it after he is required to, the prepositor of bristol may take from him a distress at bristol, and force him to restore it. 11) no stranger tradesman may buy within the town from a man who is a stranger, leather, grain, or wool, but only from a burgess. 12) no stranger may have a shop, including one for selling wine, unless in a ship, nor shall sell cloth for cutting except at the fair. 13) no stranger may remain in the town with his goods for the purpose of selling his goods, but for forty days. 14) no burgess may be confined or distrained any where else within my land or power for any debt, unless he is a debtor or surety (to avoid a person owed a debt from distraining another person of the town of the debtor). 15) they shall be able to marry themselves, their sons, their daughters and their widows, without the license of their lords. (a lord had the right of preventing his tenants and their families from marrying without his consent.) 16) no one of their lords shall have the wardship or the disposal of their sons or daughters on account of their lands out of the town, but only the wardship of their tenements which belong to their own fee, until they become of age. 17) there shall be no recognition [acknowledgment that something done by another person in one's name had one's authority] in the town. 18) no one shall take tyne [wooden barrel with a certain quantity of ale, payable by the townsmen to the constable for the use of the castle] unless for the use of the lord earl, and that according to the custom of the town. 19) they may grind their grain wherever they may choose. 20) they may have their reasonable guilds, as well or better than they had them in the time of robert and his son william [john's wife's grandfather and father, who were earls of gloucester when the town and castle of bristol were part of the honor of gloucester]. 21) no burgess may be compelled to bail any man, unless he himself chooses it, although he may be dwelling on his land. we have also granted to them all their tenures, messuages [dwelling house with adjoining land and adjacent buildings], in copses [thicket from which wood was cut], in buildings on the water or elsewhere to be held in free burgage [tenant to pay only certain fixed services or payments to his lord, but not military service (like free socage)]. we have granted also that any of them may make improvements as much as he can in erecting buildings anywhere on the bank and elsewhere, as long as the borough and town are not damaged thereby. also, they shall have and possess all waste land and void grounds and places, to be built on at their pleasure. newcastle-on-tyne's taxes were simplified in 1175 as follows: "know ye that i have granted and by this present charter have confirmed to my burgesses of newcastle upon tyne, and to all their things which they can assure to be their own, acquittance from toll and passage and pontage and from the hanse and from all other customs throughout all my land. and i prohibit all persons from vexing or disturbing them therein upon forfeiture to me." we grant to our upright men on newcastle-on-tyne and their heirs our town of newcastle-on-tyne with all its appurtenances at fee farm for 100 pounds to be rendered yearly to us and our heirs at our exchequer by their own hand at the two terms, to wit, at easter 50 pounds and at michaelmas 50 pounds, saving to us our rents and prizes and assizes in the port of the same town. ranulph, earl of chester, made grants to his burgesses of coventry by this charter: "that the aforesaid burgesses and their heirs may well and honorably quietly and in free burgage hold of me and my heirs as ever in the time of my father and others of my ancestors they have held better more firmly and freer. in the second place i grant to them all the free and good laws which the burgesses of lincoln have better and freer. i prohibit and forbid my constables to draw them into the castle to plead for any cause, but they may freely have their portimote [leet court] in which all pleas belonging to me and them may be justly treated of. moreover they may choose from themselves one to act for me whom i approve, who a justice under me and over them may know the laws and customs, and keep them to my counsel in all things reasonable, every excuse put away, and may faithfully perform to me my rights. if any one happen to fall into my amercement he may be reasonably fined by my bailiff and the faithful burgesses of the court. furthermore, whatever merchants they have brought with them for the improvement of the town, i command that they have peace, and that none do them injury or unjustly send them into court. but if any foreign merchant shall have done anything improper in the town that same may be regulated in the portimote before the aforesaid justice without a suit at law." henry confirmed this charter of the earl's by 1189 as follows: i have confirmed all the liberties and free customs the earl of chester granted to them, namely, that the same burgesses may well and honorably hold in free burgage, as ever in the time of the father of the beforesaid earl, or other of his ancestors, they may have better or more firmly held; and they may have all the laws and customs which the citizens of lincoln have better and freer [e.g. their merchant guilds; all men brought to trade may be subject to the guild customs and assize of the town; those who lawfully hold land in the town for a year and a day without question and are able to prove that an accuser has been in the kingdom within the year without finding fault with them, from thence may hold the land well and in peace without pleading; those who have remained in the town a year and a day without question, and have submitted to the customs of the town and the citizens of the town are able to show through the laws and customs of the town that the accuser stood forth in the kingdom, and not a fault is found of them, then they may remain in peace in the town without question]; and that the constable of the aforesaid earl shall not bring them into the castle to plead in any case. but they may freely have their own portmanmote in which all pleas appertaining to the earl and to them may be justly treated of. moreover they may choose one from themselves to act for the earl, whom i approve, who may be a justice under the earl and over them, and who to the earl may faithfully perform his rights, and if anyone happen to fall into the earl's forfeiture he shall be acquit for 12 pence. if by the testimony of his neighbors he cannot pay 12 pence coins, by their advice it shall be so settled as he is able to pay, and besides, with other acquittances, that the burgesses shall not provide anything in corody [allowance in food] or otherwise whether for the said earl or his men, unless upon condition that their chattels shall be safe, and so rendered to them. furthermore, whatever merchants they have brought with them for the improvement of the town they may have peace, and none shall do them injury or unjustly send them into suit at law. but if any foreign merchant has done anything improper in the town that shall be amended [or tried] in the portmanmote before the aforesaid justice without a suit. and they who may be newcomers into the town, from the day on which they began to build in the town for the space of two years shall be acquit of all charges. mercantile privileges were granted to the shoemakers in oxford thus: "know ye that i have granted and confirmed to the corvesars of oxford all the liberties and customs which they had in the time of king henry my grandfather, and that they have their guild, so that none carry on their trade in the town of oxford, except he be of that guild. i grant also that the cordwainers who afterwards may come into the town of oxford shall be of the same guild and shall have the same liberties and customs which the corvesars have and ought to have. for this grant and confirmation, however, the corvesars and cordwainers ought to pay me every year an ounce of gold." a guild merchant for wool dominated and regulated the wool trade in many boroughs. in leicester, only guildsmen were permitted to buy and sell wool wholesale to whom they pleased or to wash their fells in borough waters. certain properties, such as those near running water, essential to the manufacture of wool were maintained for the use of guild members. the waterwheel was a technological advance replacing human labor whereby the cloth was fulled. the waterwheel turned a shaft which lifted hammers to pound the wet cloth in a trough. wool packers and washers could work only for guild members. the guild fixed wages, for instance to wool wrappers and flock pullers. strangers who brought wool to the town for sale could sell only to guild members. a guildsman could not sell wool retail to strangers nor go into partnership with a man outside the guild. each guild member had to swear the guildsman's oath, pay an entrance fee, and subject himself to the judgment of the guild in the guild court, which could fine or suspend a man from practicing his trade for a year. the advantages of guild membership extended beyond profit in the wool trade. members were free from the tolls that strangers paid. they alone were free to sell certain goods retail. they had the right to share in any bargain made in the presence of a guildsman, whether the transaction took place in leicester or in a distant market. in the general interest, the guild forbade the use of false weights and measures and the production of shoddy goods. it maintained a wool beam for weighing wool. it also forbade middlemen from profiting at the expense of the public. for instance, butchers' wives were forbidden from buying meat to sell again in the same market unless they cooked it. the moneys due to the king from the guilds of a town were collected by the town reeve. when the king wanted to raise an army, he summoned his major baron tenants-in-chief, who commanded their own armed dependent vassals, and he directed the sheriffs to command the minor tenants-in-chief and supply them with equipment. a baron could assemble an army in a day, but might use it to resist any perceived misgovernment by a king. armed conflict did not interfere much with daily life because the national wealth was still composed mostly of flocks and herds and simple buildings. machinery, furniture, and the stock of shops were still sparse. life would be back to normal within a week. henry wanted to check this power of the barons. so he took over or demolished their adulterine castles and restored the older obligation of every freeman to serve in defense of the realm, the fyrd, which was a military draft. at the king's call, barons were to appear in mail suit and helmet with sword and horse, knights and freeholders with 213s.[16 marks] of rent or chattels in coat of mail with shield and lance, freeholders of 133s.[10 marks] with lance and hauberk [coat of armor] and iron headpiece, burgesses and poorer freemen with lance and headpiece and wambais, and such as millers with pike and leather shirt. the spiritual and other baronies paid a commutation for personal service, called "scutage", at the rate of 27s. per knight's fee. barons and knights paid according to their knight's fee a scutage ranging from 10s. to 27s. as of 1181, the military obligations of villeins were defined. the master of a household was responsible for every villein in his household. others had to form groups of ten and swear obedience to the chief of the group. the sheriff was responsible for maintaining lists of men liable for military service and procuring supplies. this national militia could be used to maintain the peace. the sheriff could call upon the military array of the county as a posse comitatus to take a band of thieves into custody or to quell disorder. for foreign wars, henry decided to use a mercenary army and a mercenary fleet. however, the nobility who were on the borders of the realm had to maintain their private armies for frequent border clashes. the other nobility now tended towards tournaments with mock foot battles between two sides. although subject to knightly rules, serious injury and death often resulted. for this reason, the church opposed them, but unsuccessfully. new taxes replaced the danegeld tax. freeholders of land paid taxes according to their ploughable land ("hidage", by the hide, and later "carucage", by the smaller norman carucate). the smaller measure curtailed estates and increased taxation. it was assessed from 2-5s. per carcuate [100 acres] and collected for the king by knights with little or no remuneration, and later by inquest of neighbors. the towns and demesne lands of the crown paid a tax based on their produce that was collected by the itinerant justices. merchants were taxed on their personal property, which was determined by an inquest of neighbors. clergy were also taxed. this new system of taxation increased the royal income about threefold. there was a standard for reliefs paid of 100s. [5 pounds] for a knight's fee and 2,000s. [100 pounds] for a barony. at the end of henry's reign, his treasure was over 900,000 pounds. every hide of land paid the sheriff 2s. annually for his services in the administration and defense of the county. this was probably the old danegeld. barons and their tenants and subtenants were offered an alternative of paying shield money ["scutage"] of 26s.8d. per fee in commutation for and instead of military service for their fiefs. this enabled henry to hire soldiers who would be more directly under his own control and to organize a more efficient army. henry ii restored the silver coinage to its standard of purity. the first great inflation in england occurred between 1180 and 1220. most goods and services increased threefold over these forty years. great households, whether of baron, prelate, monastery, or college gave their officers and servants allowances of provisions and clothing called "liveries". the officer of such departments as the buttery [cellar storing butts of wine], the kitchen, the napery [for linen cloth], and the chandlery had his fixed allowances for every day and his livery of clothing at fixed times of the year or intervals of years. the administration of a great estate is indicated by the pipe roll of the bishopric of winchester, 1208-1209, as follows: "downton: william fitzgilbert, and joselyn the reeve, and aylward the cellarer render account of 7 pounds 12s.11d. for arrears of the previous year. they paid and are quit. and of 3 pounds 2s.2d. for landgafol. and of 12d. by increment of tax for a park which william of witherington held for nothing. and of 2s.6d. by increment of tax for half a virgate of land which james oisel held without service. and of 19s. for 19 assize pleas in the new market. and of 10s. by increment of tax for 10 other assize pleas in the market this year. sum of the whole tax 36 pounds 14s.8d. in quittance of one reeve, 5s. in quittance for repairing the bridge, 5s.; of one forester, 4s.; of two haywards from downton and wick, 4s.; of one hayward from witherington, 20d.; of fourteen drivers from downton, wick, and nunton, for the year, 28s.; of two drivers from witherington for the year, 4s.4d.; of two drivers for half the year, 2s.; of one swineherd, of one neaterd, of one cowherd, for the year, 6s.; of three shepherds from wick, barford, and nunton, for the year, 6s.; of one shepherd from witherington, for the year, 20d.; of four customary tenants, for the year, 8s. sum of the quittances, 74s.8d. remainder 33 pounds. livery: for livery to john the dean, for christmas tax, 7 pounds 10s. by one tally. to the same for easter tax, 8 pounds by one tally. to the same for st. john's tax, 8 pounds by one tally. to the same for st. michael's tax, 8 pounds 10s. by one tally. to the same for corn [grain] sold in the field 26 pounds by two tallies. to the same for standing corn [growing crops of grain], purchases, and cheeses, 20 pounds 16s.10d. to the same for wool, 6 pounds 13s.4d. by one tally. to the same for tallage 39 pounds by one tally. sum: 134 pounds 10s.2d. expenses: for ironwork of 8 carts for year and one cart for half the year, 32s.10d. for shoeing of 2 plough horses for the year, 2s.8d. for wheels for carts, 2s.9d. for 6 carts made over, 12d. before the arrival of the carpenter. for wages of the smith for the year, 8s.6d. for one cart bound in iron bought new, 5s.7d. for wheels purchased for one cart to haul dung, 12d. for leather harness and trappings, iron links, plates, halters, 14d. for purchase of 2 ropes, 3d. for purchase of 2 sacks, 8d. for purchase of 5 locks for the granary, 11d. for making 2 gates for the sheepfold, 2s. for one gate for the farm yard, 12d. for an ax and tallow purchased and for repairing the spindles of the mill for the year, 6s.10d. for one millstone purchased for the mill 24s. for making one gate near the mill, 12d. for meat prepared in the larder, 3s. for beer bought for cleaning carcasses, 2s.1d. for digging 158 perches of land around the pasture in the marsh, 32s.11d.; for each perch 2d.1ob. for the dovecote newly made, 22s.11d.1ob. for cutting 100 thick planks for flooring both dispensary and butlery, 6s.3d. for nails or pegs bought for planking beyond the cellar, 16d. for enclosing the garden by making 2 gates, 6s.7d.1ob. for digging in the gardens, 8s.5d. for the winter work of 55 carts, 9s.2d. for the lent work of 49 carts, 8s.6d. for spreading 6 acres with dung, 6d. for threshing 24 quarters of wheat at mardon for seed, 5s. for winnowing the same, 7d. for winnowing 36 quarters of grain for seed, 3s.9d. for threshing 192 quarters of grain 32s.; for each quarter 2d. for threshing 20 quarters of mixed corn [grain], 2s.6d. for threshing 42 quarters of barley, 3s.6d. for threshing 53 quarters of oats, 2s.2d.1ob. for hauling gravel to the bridge and causeway, 4d. for cost of dairy, viz., 3 tines of salt, cloth, and pots, 6s.10d. for purchase of 17 oxen, 5 pounds 13s. for hoeing 140 acres, 5s.10d. for wages of two carters, one neatherd, for the year, 9s. for wages of one carpenter for the year, 6s.8d. for wages of one dairy woman, 2s.6d. for payment of mowers of the meadow at nunton, 6d. for 8 sheep purchased, 8s. for wages of one neatherd from nunton, 12d. for carrying 2 casks of wine by walter locard, in the time of martinmas, 8s.2d. for the carrying of 2 casks of wine from southampton to downton by the seneschal, 3s.6d. at the feast of st. lawrence. for digging 22 perches in the farmyard, 6s.5d.; for each perch 3d.1ob. for allowance of food of robert of lurdon, who was sick for 21 days, with his man, 5s.3d. for allowance of food to sewal who was caring for 2 horses of the lord bishop for 3 weeks, 21d. for allowance of food for roger walselin, for the two times he made gifts to the lord king at clarendon, 4s.9d. by two tallies. for allowance of food of master robert basset, for 3 journeys, 9s.3d.1ob. for livery of william fitzgilbert, 60s.10d. for 30 ells of canvas purchased for laying over the wool, and 2 cushions prepared for the court, 5s. for 8 sheep purchased, with lambs, 8s. sum: 2 pounds.23d. sum of livery and expenses: 159 pounds 12s.1d. and there is owing: 5 pounds 9s.4d.1ob. produce of granary: the same render account of 221 and a half quarters and 1 strike from all the produce of grain; and of 24 quarters brought from mardon. sum: 245 and a half quarters and 1 strike. for sowing 351 acres, 127 quarters. for bread for the lord bishop, 18 and a half quarters delivered to john de dispensa by three tallies. for the balance sold, 110 quarters and 1 strike. the same render account of 38 and a half quarters from all the produce of small corn [grain]. for the balance sold, all. the same render account of 29 quarters and 1 strike from all the produce of mixed corn [grain]. for seeding 156 acres, 53 quarters and 1 strike. for bread for 3 autumnal works, 9 quarters. for the balance sold, 27 quarters. the same render account of 178 and a half quarters from all the produce of barley. for sowing 102 and a half acres, 49 and a half quarters. for payment for carts, 1 quarter. for payment for hauling dung, 2 quarters. for allowance of food of two carters, one carpenter, one neatherd, one dairy woman, for the year, 32 and a half quarters. for feeding hogs in the winter, 2 quarters. for the balance sold, 91 and a half quarters. it is quit. the same render account of 311 quarters and 2 bushels from all the produce of oats. in sowing 221 and a half acres, 110 and a half quarters. for prebends [revenues paid for a clergyman's salary] of the lord bishop and lord king, on many occasions, 131 and a half quarters and 2 bushels, by five tallies. for prebends of roger wakelin, 2 and a half quarters and 3 bushels. for prebends of master robert basset, 3 and a half quarters and 1 bushel. for provender [dry food for livestock] of 2 horses of the lord bishop and 1 horse of richard marsh, for 5 weeks, 5 and a half quarters and 2 bushels. for provender of 2 horses of the lord bishop who stayed 16 nights at downton, 4 quarters. for that sent to knoyle, 18 quarters. for provender of 1 horse of robert of lurdon for 3 weeks, 1 and a half quarters. for prebends of two carters 7 quarters and 2 bushels. for the balance sold, 12 quarters. and there remains 14 quarters and 1 strike. the same render account of 6 and a half quarters from the whole produce of beans. for planting in the garden half a quarter. for the balance sold, 6 quarters. it is quit. the same render account of 4 quarters and 1 strike from all the produce of peas. for sowing 6 acres, 1 and a half quarters. for the balance sold 2 and a half quarters and 1 strike. it is quit. the same render account of 4 quarters from all the produce of vetches [pea plants used for animal fodder]. for feeding pigs in the winter, all. it is quit. beasts of burden: the same render account of 104 oxen remaining from the previous year. and of 2 yoked from useless animals. and of 1 from the will of robert copp. and of 17 purchased. sum: 124. of living ones sold, 12. of dead, 21. sum: 33. and there remain 91 oxen. the same render account of 2 goats remaining from the previous year. all remain. the same render account of 19 cows remaining from the previous year. and of 7 yoked from useless animals, and of 1 found. sum: 27. by death, 1. by killing, brought for the need of the lord bishop at cranbourne, 2. sum: 3. and there remain 24 cows. the same render account of 7 heifers and 2 steers remaining from the previous year. in yoked cows, 7 heifers. in yoked oxen, 2 bulls. sum: 9. the same render account of 12 yearlings remaining from the previous year. by death, 1. there remain 11, of which 5 are female, 6 male. the same render account of 13 calves born this year from cows, because the rest were sterile. in tithes, 1. there remain 12. the same render account of 858 sheep remaining from the previous year. and of 47 sheep for the payment of herbage, after birth, and before clipping. and of 8 bought before birth. and of 137 young ewes mixed with two-year-olds. sum: 1050. in live ones sold at the time of martinmas, 46. in those dead before birth, 20. in those dead after birth and before shearing, 12. sum: 78. and there remain 972 sheep. the same render account of 584 wethers [castrated rams] remaining from the previous year. and of 163 wethers mixed with two-yearolds. and of 16 rams from lindsey, which came by brother walter before shearing. sum: 763. in living ones sold at the time of martinmas, 27 wethers, 10 rams. paid to the men of bishopton before shearing by writ of the seneschal, 20. by death, before shearing, 14. sum: 71. and there remain 692 sheep. the same render account of 322 old sheep remaining, with lambs from the previous year. by death before shearing, 22. and there remain 300; whence 137 are young ewes, mixed with sheep, and 163 males, mixed with wethers. the same render account of 750 lambs born from sheep this year because 20 were sterile, and 30 aborted. in payment of the smith, 2; of shepherds, 3. in tithes, 73. in those dead before shearing, 105. sum: 181. and there remain 569 lambs. the same render account of 1664 large sheepskins whence 16 were from the rams of lindsey. in tithes, 164. in payment of three shepherds, 3. in the balance sold 1497 skins with 16 skins from lindsey which made 11 pondera. the same render account of 569 lamb skins. in the balance sold, all, which made 1 and a half pondera. the same render account of 138 cheeses from arrears of the previous year. and of 19 small cheeses. and of 5 larger ones from the arrears of the previous year. and of 273 cheeses which were begun the 6th of april and finished on the feast of st. michael, both days being counted. and they made cheeses two by two for 96 days, viz. from the 27th april to the vigil of the feast of st. peter in chains, both days being counted. sum: 435 cheeses. in tithes 27. in payment of a shepherd, and mowers of the meadow from nunton, 2. in duty of a carter, 3. in autumnal work, 10. in expenses of the bishop in the kitchen, 2 by one tally. in the balance sold, 133 cheeses, which made 10 heads, from arrears of the previous year. in the balance sold, 177 cheeses, which made 18 heads in this year. in expenses of the lord king and lord bishop on the feasts of st. leonard and st. martin, 19 small cheeses, and 5 larger ones from the arrears of the previous year. and there remain 52 small cheeses which make one head. the same render account of 124 hogs remaining from the previous year. and of 29 that were born of sows. sum: 153 pigs. in tithes, 2. by death, 9. in those killed for the larder, 83. sum: 95 pigs. and there remain 58 pigs. also 19 suckling pigs. sum of the whole: 77 pigs. the same render account of 48 chickens from arrears of the previous year. and of 258 chickens for cheriset. sum: 306. in expenses of the lord bishop on the feast of st. martin, 36 by one tally. in expenses of the same on the feast of st. leonard, 106, by one tally. in expenses of the lord king and bishop on the feast of the apostles peter and paul, 131 chickens, by two tallies. in allowance for food for roger wakelin, 8. in allowance of food for master robert basset, 4. by death, 21. sum: 306 chickens. it is quit. the same render account of 273 chickens, 27 sticae of eels, 4 suckling pigs, freed for the expenses of the lord king and bishop. >from the larder: the same freed for the expenses of the lord bishop meat of 2 cows taken to cranbourne. the same render account of 13 sides of bacon, arrears of the previous year. and of 5 oxen and 1 quarter of old beef from arrears of the previous year. and of 84 hogs from downton. and of 71 hogs from mardon. and of 10 hogs from overton. and of 9 hogs from high-clere. and of 14 hogs from harwell. and of 7 hogs from knoyle. sum: 203 hogs, and meat of 5 oxen and one quarter. in expenses of the lord bishop at the feast of st. martin, 8 sides of bacon. in expenses of the same at the feast of st. leonard, 17 sides of bacon, the meat of 5 oxen, and 1 quarter of an ox. in expenses of the same on the morrow of the feast of the holy cross, delivered to nicolas the cook, 27 sides of bacon. in expenses of the lord bishop delivered to the same cook at knoyle on the saturday before the feast of st. michael, 15 sides of bacon. in expenses of the same and of the lord king on the feast of the apostles peter and paul, 50 sides of bacon. in allowance of food to master robert basset on the feast of all saints, half a side of bacon. in allowance of food to the same on wednesday and thursday before pentecost, 1 side of bacon. in those sent to knoyle for autumnal work, 6 sides of bacon. in three autumnal festivals at downton, 9 and a half sides of bacon. sum: 134 sides of bacon. and there remain 74 sides of bacon. the same render account of skins, sausages, and offal of the said hogs. in expenses of the lord king and lord bishop at the feast of st. leonard, all. nothing remains." king richard the lion-hearted, unlike his father, was interested in warfare. he spent most of his term on crusade to recover jerusalem. for his expenses, he imposed a tax of one-tenth of rents and income from moveable goods. he also sold town charters, heiresses and heirs, widows, sheriffdoms, justiceships, earldoms, and licenses for tournaments. the crusades' contact with arabs brought to england an expansion of trade, arab horses, and arabic numerals, which included "zero" and greatly facilitated arithmetic, which was very difficult with roman numerals. the church decreed that those who went on these crusades would be remitted of their sins. at the end of this period was the reign of king john, a short man. after his mother eleanor's death in 1204, john ruled without her influence. he had no conscience and his oaths were no good. he trusted and was trusted by no one. he had a huge appetite for money. he imposed 2,000 pounds [3,000 marks] on london for confirmation of its charter. he imposed levies on the capital value of all personal and moveable goods. it began the occasional subsidies called "tenths and fifteenths" from all people on incomes from movables: one-tenth from boroughs and royal demesne land, and one-fifteenth elsewhere. he sold the wardships of minors and the marriages of heiresses to the highest bidder, no matter how base. he appointed unprincipled men to be both sheriff and justice, enabling them to blackmail property holders with vexatious writs and false accusations. writs were withheld or sold at exorbitant prices. crushing penalties were imposed to increase the profits of justice. he asserted over fowls of the air the same exclusive right as over beasts of the forest. the story of robin hood portrays john's attempt to gain the crown prematurely while richard was on the crusades to recover jerusalem for christendom. (in 1198, the bishop barons had refused to pay for a campaign of richard's war in normandy arguing that military service was only due within the kingdom of england. when richard was captured, every person in the realm was required to pay a part of his ransom of 100,000 pounds, which was double the whole revenue of the crown. aids, tallages, and carucage were imposed. the heaviest impost was one-fourth of revenue or of goods from every person.) in 1213, strong northern barons refused a royal demand for service in france or scutage, arguing that the amount was not within custom or otherwise justified. john had private and public enemies. no one trusted him and he trusted no one. his heavy handed and arbitrary rule quickly alienated all sectors of the population: other barons, bishops, london, and the commons. they joined the barons to pressure him to sign the magna carta correcting his abuses. for instance, since john had extracted many heavy fines from barons by personally adjudging them blameworthy in disputes with others, the barons wanted judgment by their peers under the established law of the courts. in arms, the barons forced john to sign the magna carta correcting his abuses. the law no one, including the lord of a manor, may take land from anyone else, for instance, by the customary process of distress, without a judgment from the royal court. this did not apply to london, where a landlord leasing or renting land could take distress in his fee. no one, including the lord of a manor, shall deprive an heir of the land possessed by his father, i.e. his birthright. a tenant may marry off a daughter unless his lord shows some just cause for refusing to consent to the marriage. a tenant had to pay an "aid" to his lord when the lord's daughter married, when the lord's son was knighted, or when the lord's person was ransomed. a man [or woman] may not will away his land, but he may sell it during his lifetime. the land of a knight or other tenant of a military fee is inherited by his eldest son. the socage land of a free sokeman goes by its ancient custom before the norman conquest. if a man purchased land after his marriage, his wife's dower is still one-third of the land he had when they married, or less if he had endowed her with less. but he could then enlarge her dower to one-third of all of his lands. the same rule applied if the man had no land, but endowed his wife with chattel or money instead. dower law prevented a woman from selling her dower during the life of her husband. but he could sell it or give it away. on his death, its possessor had to give the widow the equivalent worth of the property. a widower had all his wife's lands by curtesy of the nation for his lifetime to the exclusion of her heirs. the capital messuage [chief manor] could not be given in dower or divided, but went in its entirety to its heir. heirs were firstly sons, then daughters, then grandsons per stirpes, then granddaughters per stirpes, then brothers, and then sisters of the decedent. [by taking "per stirpes" instead of "per capita", a person's share goes to that person's heirs if that person predeceases the ancestor-decedent.] male heirs of land held by military service or sons of knights who were under the age of twenty-one were considered to be in custody of their lords. the lord had wardship over the heir's land, excluding the third that was the widow's dower for her life. he had to maintain the heir in a manner suitable to his dignity and restore to him when he came of age his inheritance in good condition discharged from debts. male heirs of sokemen who were under the age of fifteen were in the custody of their nearest kindred. the son of a burgess came of age when he could count money, measure cloth, and manage his father's concerns. female heirs remained in the custody of their lords until they married. the lord was bound to find a marriage for his ward when she became fourteen years of age and then deliver her inheritance to her. she could not marry without her lord's consent, because her husband was expected to be the lord's ally and to do homage to him. but if a female heir lost her virginity, her inheritance escheated to her lord. a woman with property could not do homage because she could not perform military service, but she generally swore fealty. she could receive homage from men. bastards were not heirs, even if their father married their mother after birth. any adult inheriting land had to pay a "relief" to the lord of the land. for a knight's fee, this was 100s. for socage land, this was one year's value. the amount for a barony depended upon the king's pleasure. heirs (but not widows) were bound to pay the debts of their fathers and ancestors. a man who married a woman who had inherited land could not sell this land without the consent of its heirs. when a man dies, his wife shall take one-third and his heirs shall take one-third of his chattels [movables or personal property]. the other third he may dispose of by will. if he had no heirs and no will [intestate], all his chattels would escheat to his lord. any distribution of chattels would take place after all the decedent's debts were paid from the property. a will required two witnesses. the testator could name an executor, but if he did not, the next of kin was the executor. a will could not be made by a man on his death bed because he may well have lost his memory and reason. also, he could not give to a younger son if in so doing, he would deprive his lawful heir. but he could give a marriage gift to a daughter regardless of the lawful heir. usury was receiving back more than what was lent, such as interest on a loan of money. when a usurer died, all his movables went to the king. a villein may not buy his own freedom (because all that he has is his lord's), but may be set free by his lord or by someone else who buys his freedom for him. he shall also be freed if the lord seduced his wife, drew his blood, or refused to bail him either in a civil or criminal action in which he was afterwards cleared. but a freed villein did not have status to plead in court, even if he had been knighted. if his free status were tried in court, only a freeman who was a witness to his being set free could avail himself of trial by combat to decide the issue. however, if the villein remained peacefully in a privileged town a year and a day and was received into its guild as a citizen, then he was freed from villeinage in every way. a freeman who married a villein lost his freedom. if any parent of a child was a villein, then the child was also a villein. all shipwrecked persons shall be treated with kindness and none of their goods or merchandise shall be taken from them. if one kills another on a vessel, he shall be fastened to the dead body and thrown with it into the sea. if one steals from another on a vessel, he shall be shaven, tarred and feathered, and turned ashore at the first land. passage on the thames river may not be obstructed by damming up the river on each side leaving a narrow outlet to net fish. all such weirs shall be removed. judicial procedure henry ii wanted all freemen to be equally protected by one system of law and government. so he opened his court, the royal court, to all people of free tenure. a court of five justices professionally expert in the law, traveled with the king, and on points of difficulty consulted with him. justices began to be more than presiding officers; they, instead of those attending, rendered the judgments. the chief court was in westminster, where the weightiest decisions were made. other professional itinerant justices appeared periodically in all counties of the nation to hear certain criminal and civil cases and to hear citizens' private civil suits [common pleas]. they came to perform many other tasks, including promulgating and enforcing new legislation, seeking out encroachments on royal rights, reviewing the local communities' and officials' performance of their public duties, imposing penalties for failure to do them or for corruption, gathering information about outlaws and nonperformance of homage, and assessing feudal escheats to the crown, wardships to which the king was entitled, royal advowsons, feudal aids owed to the king, tallages of the burgesses, and debts owed to the jews. the decision-making of itinerant justices on circuits begins the process which makes the custom of the royal court the common law of the nation. the county courts, where the traveling justices heard all manner of business in the counties, adopted the doctrines of the royal court, which then acquired an appellate jurisdiction. the itinerant justices came from the same small group of royal justices who were on the royal court and the exchequer, which was headed by the justiciar. difficult cases were decided by the king and wise men of his council. tenants of manors and of escheats in royal hands, who had been excused from the monthly county court, were required to appear. side by side with the reeve and four men of the rural townships appeared the twelve legal men of each of the chartered boroughs which owed no suit to the ordinary county court. in the formation of the jury of presentment for criminal cases, each hundred sent twelve legal men and each township four to make report to the justices. women did not serve on juries. compurgation was not used; accused persons were sent directly to the ordeal. in 1194, twelve knights or legal men from each hundred answer before any itinerant justice for their hundred in all criminal, civil, and fiscal cases. all who are bound to attend before the itinerant justices are, in the forest counties, compelled to attend the forest courts. the royal court was chiefly concerned with 1) the due regulation and supervision of the conduct of local government, 2) the ownership and possession of land held by free tenure ("free tenement" was decided by justices to be one held for life or one held heritably [a fee]), 3) the repression of serious crime, and 4) the relations between the lay and the ecclesiastical courts. the doctrine of tenure applied universally to the land law formed the basis for judicial procedure in determining land rights. those who held lands "in fee" from the king in turn subinfeudated their land to men of lesser rank. the concept of tenure covered the earl, the knight (knight's service), the church (frank-almoin [free alms]), the tenant who performed labor services, and the tenant who paid a rent (socage). other tenures were: serjeanty [providing an implement of war or performing a nonmilitary office] and burgage. all hold the land of some lord and ultimately of the king. henry was determined to protect lawful seisin of land and issued assizes giving the royal court authority to decide land law issues which had not been given justice in the county or lord's court. but he did not ordain that all litigation respecting free tenements, e.g. right of seisin, should take place in the king's court. rather he gave protection to mere possession of land, which could be justified because possession was intimately associated with the maintenance of the king's peace. these assizes included issues of novel disseisin [recent ejectment] of a person's free tenement or of his common of pasture which belonged to his freehold. though the petty assize of disseisin only provided a swift preliminary action to protect possession pending the lengthy and involved grand assize on the issue of which party had the more just claim or ultimate right of seisin, the latter action was only infrequently invoked. the temptation of a strong man to seize a neighbor's land to reap its profits for a long time until the neighbor could prove and enforce his right was deterred. any such claim of recent dispossession [novel disseisin] had to be made within three years of the disseisin. an example of a writ of novel disseisin is: the king to the sheriff, greeting. n has complained to me that r unjustly and without a judgment has disseised him of his free tenement in [houndsditch] since my last voyage to normandy. therefore i command you that, if n gives you security for prosecuting his claim, you are to see that the chattels which were taken from the tenement are restored to it, and that the tenement and the chattels remain in peace until sunday after easter. and meanwhile you are to see that the tenement is viewed by twelve free and lawful men of the neighborhood, and their names endorsed on this writ. and summon them by good summoners to be before me or my justices on the sunday after easter, ready to make the recognition. and summon r. or his bailiff if he himself cannot be found, on the security of gage and reliable securities to be there then to hear the recognition. and have there the summoners, and this writ and the names of the sureties. witness etc. then an assize panel of recognition summoned concurrently with the defendant and before he had pleaded, viewed the land in question and answered, from their knowledge, these questions of fact: 1) was the plaintiff disseised of the freehold in question, unjustly and without judgment? 2) did the defendant commit the disseisin? testimony of a warrantor (or an attorney sent by him in his place) or a charter of warranty served to prove seisin by gift, sale, or exchange. no pleadings were necessary and the action could proceed and judgment given even without the presence of the defendant. the justices amerced the losing party with a monetary penalty. a successful plaintiff might be awarded damages to compensate for the loss of revenue. there was also a writ for issues of inheritance of land called "mort d'ancestor". by law the tenure of a person who died seised of a tenure in a lord's demesne which was hereditary [seisin of fee] returned to the lord, who had to give it to the heir of the decedent. if the lord refused and kept it for himself or gave it to someone else, the heir could sue in the royal court, which used an similar assize panel of twelve men to decide whether the ancestor was seised as of fee in his demesne, if the plaintiff was the nearest heir, and whether the ancestor had died, gone on a crusade but not returned, or had become a monk. then it could give possession to the heir. since about 1150, heiresses divided the land of their father if there was no son. the widow, of course, retained her dower rights. as of 1176, the widow held her dower from the heir instead of from the husband's lord. if the heir was a minor, the guardian lord would be in actual control of the land. a national policy was implemented that in the case of the death of a freeholder, the rights of the family, his will, and his debts were to be provided for before relief was paid to his lord. eventually royal justices acquired authority to decide the ultimate question of right to land using the grand assize as an alternative to the traditional procedures which ended in trial by combat. issues of the ultimate right of seisin were brought to the royal court by a contestant in a local court who "put himself [or herself] upon the king's grand assize". the assize consisted of twelve knights from the county or neighborhood who were elected by four knights of the same county or neighborhood (selected by the sheriff or the suitors) and who were known as truthful men and were likely to possess knowledge of the facts, either from personal seeing or hearing, or from statements which their fathers had made to them from their personal knowledge. the avenue by which a person who felt he had not had justice in the manor court on his claim for certain freehold land appealed to the king was by writ of right after the manor court's decision or by a writ praecipe during the manor court's proceeding. an example of a writ praecipe is: "the king to the sheriff greeting. command [praecipe] n. to render to r. justly and without delay one hide of land in a certain vill, which the said r. complains that the aforesaid n. is withholding from him. if he does not do so, summon him by good summoners to be before me or my justices on the day after the octaves of easter, to show why he has not done so. and have the summoners and this writ. witness." when the parties appeared in court, the claimant states his suit such as: "i claim against this n. the fee of half a knight and two carucates of land in a certain vill as my right and my inheritance, of which my father (or grandfather) was seized in his demesne as of fee in the time of king henry the first, and from which he took the profits to the value of five shillings at least, in grain and hay and other profits; and this i am ready to prove by this freeman of mine, h., and if any evil befalls him them by this other man or by this third man, who saw and heard it". then the defendant chose to deny the claim word for word with proof by combat or to put himself upon the grand assize of the king. if he chose trial by combat, the parties or their champions fought. the party losing, usually by crying craven, had to pay a fine of 60s. if the grand assize was chosen, the action was removed to the royal court. a writ of grand assize was issued as follows: "the king to the sheriff, greeting. summon by good summoners the following twelve, namely, a. b. ..., to be before me or my justices at a certain place on a certain day, ready to declare on oath whether n. or r. has the greater right in one hide of land (or other things claimed) which the aforesaid r. claims against the aforesaid n., who is tenant, and in respect of which the aforesaid n., who is tenant, has put himself upon my assize and has sought a recognition to determine which of them has the greater right in the things claimed. and meanwhile the twelve shall view the land (or tenements from which the services are demanded). and summon by good summoners n., who is tenant, to be there to hear the recognition. witness..." the claimant could object to any of the twelve knights for just cause as determined by the court. each of the twelve gave an oath as to whether the plaintiff's or the defendant's position was correct. this oath was not to speak falsehood nor conceal truth according to knowledge gained by eyewitness or "by the words of their fathers and by such words as they are bound to have such confidence in as if they were their own". if any did not know the truth of the matter, others were found until twelve agreed [the recognitors] on which party had the greater right. perjury was punished by forfeiture of all one's goods and chattels to the king and at least one year's imprisonment. if the tenant in court vouched another to warranty, such as the lord to whom he paid homage, that warrantor would stand in his place in the proceedings. if the warrantor lost, he would have to give to his vassal equivalent land in exchange. burgage tenure was not usually decided by assize. also, if the parties were relatives, neither the assize nor the combat was available to them, but the matter had to be decided by the law of inheritance. itinerant justices could conduct these assizes: petty and grand. in 1198, the hundred is empowered to act on all the business of the session, including all recognitions and petty assizes ordered by the king's writ, where the property in dispute was worth no more than 200s. [ten pounds] a year. the four knights came to be selected by the suitors of the county court rather than by the sheriff. this assize procedure extended in time to all other types of civil actions. also removable to the royal court from the county courts were issues of a lord's claim to a person as his villein (combat not available), service or relief due to a lord, dower rights, a creditor's refusal to restore a gage [something given as security] to a debtor who offered payment or a deposit, money due to a lender, a seller, or a person to whom one had an obligation under a charter, fish or harvest or cattle taken from lands unjustly occupied, cattle taken from pasture, rights to enjoy a common, to stop troubling someone's transport, to make restitution of land wrongfully occupied, to make a lord's bailiff account to him for the profits of the manor. the royal court also decided disputes regarding baronies, nuisance or encroachments on royal land or public ways or public waterways, such as diverting waters from their right course and issues of nuisance by the making or destroying of a ditch or the destruction of a pond by a mill to the injury of a person's freehold. other pleas of the crown were: insult to the royal dignity, treason, breaches of safe-conducts, and injury to the king's servants. henry involved the royal court in many criminal issues, using the agencies of the county and hundred courts. to detect crimes, he required royal justices to routinely ask selected representatives: knights or other landholders, of every neighborhood if any person were suspected of any murder, robbery, theft, etc. a traveling royal justice or a sheriff would then hold an inquest, in which the representatives answered by oath what people were reputed to have done certain crimes. they made such inquiries through assizes of presentment, usually composed of twelve men from each hundred and the four best men of each township. (these later evolved into grand juries). these assizes were an ancient institution in many parts of the country. they consisted of representatives of the hundreds, usually knights, and villages who testified under oath to all crimes committed in their neighborhood, and indicted those they suspected as responsible and those harboring them. what henry's assize did was to insist upon the adoption of a standard procedure everywhere systematically. the procedure was made more regular instead of depending on crime waves. if indicted, the suspected persons were then sent to the ordeal. there was no trial by compurgation in the royal courts, which was abolished by henry. if determined guilty, he forfeited his chattels to the king and his land reverted to his landlord. if he passed the ordeal but was ill-famed in the community, he could be banished from the community. the ordeal was abolished by the lateran council of 1215. as before, a person could also be brought to trial by the accusation of the person wronged. if the accused still denied the charge after the accuser testified and the matter investigated by inquiries and interrogation and then analyzed, trial by combat was held, unless the accuser was over the age of sixty or maimed, in which case the accused went to the ordeal. if a man failed at the ordeal, the penalty prescribed by the assize of clarendon of 1166 was loss of a foot and abjuring the realm. the assize of northhampton of 1176 added loss of the right hand. under the former assize, a man who had a bad reputation had to abjure the realm even if he had successfully undergone the ordeal. criminal matters such as killing the king or sedition or betraying the nation or the army, fraudulent concealment of treasure trove [finding a hoard of coins which had been buried when danger approached], breach of the king's peace, homicide, murder (homicide for which there were no eyewitnesses), burning (a town, house, men, animals or other chattel for hatred or revenge), robbery, rape and falsifying (e.g. false charters or false measures or false money) were punishable by death or loss of limb. all murders were now punished alike because the applicability of the murdrum couldn't be determined since it was impossible to prove that the slain man had been english. trespass was a serious and forcible breach of the peace onto land that developed from the criminal law of felony. one found guilty of it could be fined and imprisoned as well as amerced. housebreaking, harboring outlaws, and interference with the royal perquisites of shipwreck and the beasts of the sea which were stranded on the coast [such as whales and sturgeon] were also punishable in the royal court. the royal court had grown substantially and was not always presided over by the king. to avoid court agents from having too much discretionary power, there was a systematic procedure for bringing cases to the royal court. first, a plaintiff had to apply to the king's chancery for a standardized writ into which the cause had to fit. the plaintiff had to pay a fee and provide a surety that the plea was brought in good faith. the progress of the suit was controlled at crucial points by precisely formulated writs to the sheriff, instructing him for instance, to put the disputed property under royal protection pending a decision, to impanel an assize and have it view the property in advance of the justices' arrival, to ascertain a point of fact material to the plea, or to summon a 'warrantor' to support a claim by the defendant. the royal court kept a record on its cases on parchment kept rolled up: its "rolls". the oldest roll of 1194 is almost completely comprised of land cases. anyone could appoint an agent, an "attorney", to appear in court on his behalf, it being assumed that the principal could not be present and royal authorization given. a wife could represent her husband. the principal was then bound by the actions of his agent. gradually men appeared who made a business of representing whoever would employ them. the common law system became committed to the "adversary system" with the parties struggling judicially against each other. the royal court took jurisdiction over issues of whether certain land was civil or ecclesiastical [assize utrum], and therefore whether the land owed services or payment to the crown or not. it also heard issues of disturbance of advowson, a complex of rights to income from a church and to the selection of a parson for the church [assize of darrein [last] presentment]. many churches had been built by a lord on his manor for his villeins. the lord had then appointed a parson and provided for his upkeep out of the income of the church. in later times, the lord's chosen parson was formally appointed by the bishop. by the 1100s, many lords had given their advowsons to abbeys. this procedure used twelve recognitors selected by the sheriff. as before, the land of any person who had been outlawed or convicted of a felony escheated to his lord. his moveable goods and chattels became the king's. if he was executed, his heirs received nothing because they were of the same blood as the felon, which was corrupt: "corruption of the blood". the loss of civil rights and capacities after a sentence of death for felony or treason, which resulted in forfeiture of property and corruption of the blood, was called "attainder". the manor court heard cases arising out of the unfree tenures of the lord's vassals. it also heard distraint, also called "distress", issues. distraint was a landlord's method of forcing a tenant to perform the services of his fief. to distrain by the fief, a lord first obtained a judgment of his court. otherwise, he distrained only by goods and chattels without judgment of his court. a distraint was merely a security to secure a person's services, if he agreed he owed them, or his attendance in court, if he did not agree that he owed them. law and custom restricted the type of goods and chattels distrainable, and the time and manner of distraint. for instance, neither clothes, household utensils, nor a riding horse was distrainable. the lord could not use the chattels taken while they were in his custody. if cattle in custody were not accessible to the tenant, the lord had to feed them at his expense. the lord, if he were not the king, could not sell the chattel. this court also determined inheritance and dower issues. the court of the vill enforced the village ordinances. the hundred court met twice a month and dealt with the petty crimes of lowly men in the neighborhood of a few vills. the county and borough courts heard cases of felonies, accusations against freemen, tort, and debts. the knights make the county courts work as legal and administrative agencies of the crown. the peace of the sheriff still exists for his county. the king's peace may still be specially given, but it will cease upon the death of the king. law required every good and lawful man to be bound to follow the hue and cry when it was raised against an offender who was fleeing. the village reeve was expected to lead the chase to the boundary of the next jurisdiction, which would then take the responsibility to catch the man. admiralty issues (since no assize could be summoned on the high seas), and tenement issues of land held in frankalmoin ["free alms" for the poor to relieve the king of this burden], where the tenant was a cleric were heard in the ecclesiastical courts. before henry's reign, the church, with the pope's backing, had become more powerful and asserted more authority. henry tried to return to the concept of the king being appointed by god and as the head of the church as well as of the state, as in henry i's time, and to include the church in his reform of the legal system, which would make the spiritual jurisdiction and temporal jurisdiction conform to a common justice. toward this end, he published the constitutions of clarendon. but the archbishop of canterbury, thomas becket, refused to agree to them, although as chancellor he had seen the beneficial effects on the kingdom of henry's legal measures. the disagreement came to a head in henry's attempt to establish the principle of "one law to all" by having church clerics punished by the civil courts as before, instead of having "benefit of clergy" to be tried and punished only in ecclesiastical courts, even for secular crimes. clerics composed about one-sixth the population. the church courts had characteristically punished with spiritual penalties of a fine or a penance, and at most defrocking. it could not impose a death penalty, even for murder. when archbishop becket was murdered and became a martyr, "benefit of clergy" became a standard right, except for offenses in the king's forests. appeals could be made to the pope without the king's permission. the king could take a criminal cleric's chattels, but not his life. however, though theoretically bishops were elected by the body of bishops with the approval of the king, as a practical matter, the king chose the bishops and the abbots. it was a constant matter of dispute, in which the pope would sometimes involve himself. selection of archbishops was also a frequent matter of contention between king and pope. the church copied the assize procedure developed by the royal court to detect ecclesiastical offenses. trial was still by compurgation. bishops could request the chancery to imprison an offender who had remained excommunicant for forty days, until he made amends. chancery complied as a matter of course. this went on for six centuries. the delineations of jurisdiction among these courts were confused and there was much competing and overlapping of jurisdictions. however, the court could appoint arbitrators or suggest to the parties to compromise to avoid the harshness of a decisive judgment which might drive the losing party to violent self-help. the office of coroner was established about 1194 to supplement the judicial investigations of crimes with local officers prior to the arrival of the itinerant justices. four knights who were residents of the county and possessed sufficient land were elected by the county court for life. sometimes they had county and royal connections instead. they received no pay. they determined if sudden deaths were accidental or due to murder and the cause of death of prisoners. they also held inquests on other crime such as bodily injury, rape, and prison break. they attached [arrested] the accused and evaluated and guarded his chattels until after the trial. if the accused was found guilty, his possessions went to the king. the coroner sat with the sheriff at every county court and went with him on his turns. this office and the forbidding of sheriffs to act as justices in their own counties reduced the power of the sheriffs. the responsibility of receiving the oath of the peace is changed from the sheriff to knights, the duty of the sheriffs being only to receive and keep the criminals taken by these knights until the justices came to try them. also, at this time, the constitution of the grand jury of the county was defined. first, four knights were to be chosen in the county court. these were to select on oath two knights from each hundred. these two, also on oath, are to add by co-optation ten more for the jury of the hundred. in london, if one of two witnesses for the defense died while an action was pending, the survivor, after offering his oath, could proceed to the grave of the dead witness, and there offer oath as to what the dead man would have sworn if he had been alive. if a foreigner was bound to make oath for debt or any misdeed, he could make it with six others, his own oath being the seventh; but if could not find six supporters, he alone could make the oath and take it in the six nearest churches. in london, the method of capital punishment was being confined to hanging, instead of also being in the form of beheading, burning, drowning, stoning, or hurling from a rock. in cases of drowning, the offender was first sewn up in a sack with a snake, a dog, an ape, and a cock. chief justiciar ranulph glanvill wrote a treatise on the writs which could be brought in the royal court and the way they could be used. it was a practical manual of procedure and of the law administered in the royal court. there are personal actions such as "debt" for specific chattel or specific sum of money. this splits into two actions. the detinue award is for the specific chattel or its value. the action of "replevin" is available to the tenant to recover personal property which had been wrongly distrained, usually cattle; the goods are "repledged" pending action. also, but rarely used, are "covenant" to protect termors for leases of land for terms of years, and "trespass": a semi-criminal action brought by a private party for an offense punishable by death (or in the 1100s by mutilation) such as murder, rape, robbery, or mayhem, that is done with force of arms and against the peace of the king. the use of trespass grew as private actions for felony were supplanted by public indictment. it occasioned outlawry in default of appearance. these personal actions were initiated in common law courts by their respective writs. these are some of the cases of novel disseisin brought to the king's court: woodbridge v. bardolf (1194, king's court): ralf of woodbridge seeks before the justices his free tenement in hebston by the assize of novel disseisin against hugh bardolf. against which assize hugh said that he had that seisin by judgment of his court for the default of the same ralf. and the court has recorded the summons and distraints reasonably made on the same ralf. and ralf himself has acknowledged the summons and distraints and said that he ought not hold anything from him in that land; rather, it is of another's fee. and because neither he nor anyone for him has complained to the justices that hugh unjustly drew him into a plea concerning a tenement which ralf himself held of the fee of another lord, it is considered that hugh hold in peace. and let ralf plead by writ of right if he want and be in mercy for his false claim. turroc v. fitz walter (1194, king's court): the assize came to recognize if clement son of walter unjustly and without judgment disseised matilda of turroc of her free tenement within the assize. clement comes and says that he disseised her by judgment of his court. the court is present and records that she occupied more of her lord's land than she had in dower by the sheriff and by order of the lord king, so that she was summoned and distrained to come in to court, and she so responded that she remained in mercy of 10s. by judgment, so that for that amercement and for other complaints she made fine with her lord for 1/2 mark [7s.] and put her land in pledge in his court and did not want to render the 1/2 mark [7s.]. and therefore by judgment of his court he seised it. matilda denies all word for word. and the same clement only produces two men from his court; and it is considered that it was no court. judgment: let matilda have her seisin and let clement be in mercy for disseisin. fitz hereward v. prior of lecton (1195, king's court): the assize came to recognize if the prior of lecton unjustly and without judgment disseised reginald son of hereward and essolda his wife of his free tenement in clapston after the first coronation of the lord king. the prior says that the assize ought not be taken thereof, because he seised that land by judgment of his court for default of his service and his rent, whereof he has his court present, which asserts the same thing. it is considered that the prior replevy [give back] to them their land and give them a day in his court concerning the arrears of rents and services. and let him treat them justly by judgment of his court. stanfeld v. brewes (1199, king's court): the assize comes to recognize if simon of brewes and luke cleric and peter of brewes unjustly and without a judgment disseised odo of stanfeld and juliana his wife of her free tenement in michehey within the assize. simon says that the assize ought not be taken thereof, because he took that land into his hand by judgment of his court -which he produced and which attests to this -for default of his service. and it was testified that odo holds that land from the same simon. simon was ordered to replevy that land to odo as well as the chattels and to treat him rightfully in his court. fitz william v. amice et al. (1200, king's court): the assize comes to recognize if amice who was the wife of richard earl of clare and hugh of ceriton, john of cornherd, william of wattevill, alexander son of gilbert, alexander son of matthew, bartholomew son of alexander, robert of cornherd, and geoffrey son of leveric unjustly and without judgment disseised richard son of william of sudbury of his free tenement in sudbury after the feast of st michael next before the coronation of the lord king. the countess says that, when she was separated by papal order from the earl of clare her husband by reason of consanguinity, to which husband the vill of sudbury had been given with her as marriage portion, she came to sudbury and convoked her court and made the same richard to be summoned to come to show by what warrant he held her land. he willingly entered into the plea and vouched the earl of clare her former husband to warrant and at the day given him to have [his warrantor] he did not have him. and thus by consideration of her court she seised her land and holds it. which court she produced and which attests this. richard comes and denies that he was ever summoned or came into her court by summons or vouched to warranty or so lost seisin by consideration of the court of the countess. and this he offers [to prove]. it is considered that he defend himself 12-handed that he did not willingly enter into the plea and vouch to warranty. let him wage his law [prove by the 12-handed oath, thus, by compurgation]. pledges of the law: hugh son of hugh, wido of sudbury. day is given them at the quindene of st. john. this is the suit of richard of sudbury: [there follow the names, but only of 10 men] against the countess amice who was the countess of clare, concerning whom he had complained concerning a novel disseisin of his free tenement in sudbury. she said that by judgment of her court for default of warranty which he had vouched did she make the [dis]seisin and thereof did she produce suit. and he denied against her and against the suit, and law was adjudged. and he comes with his law and makes it with the abovesaid suit. therefore it is considered that he recover thereof his seisin; let the countess be in mercy for unjust disseisin and also her men, of whom the same richard has complained. and let the same countess return to him the damages done thereof by a jury of law-worthy men of the vicinity. the names of the men of the countess are in the writ. a sample of crown pleas in several hundreds or wapentakes [danish name for a hundred] from 1201 to 1203 are: 1. denise, who was wife to anthony, appeals nicholas kam of the death of anthony, her husband, for that he wickedly slew her husband; and this she offers to prove against him under award of the court. and nicholas defends all of it. it is considered that denise's appeal is null, for in it she does not say that she saw the deed. the jurors being asked, say that they suspect him of it; the whole county likewise suspects him. let him purge himself by water [ordeal] under the assize. he has waged his law. 2. william de ros appeals ailward bere, roger bald, robert merchant, and nicholas parmenter, for that they came to his house and wickedly in the king's peace took away from him a certain villein of his whom he kept in chains because he wished to run away, and led him off, and in robbery carried away his wife's coffer with one mark of silver and other chattels; and this he offers to prove by his son, robert de ros, who saw it. and ailward and the others have come and defended the felony, robbery, and breach of the king's peace, and say that (as the custom is in cornwall) roger of prideaux, by the sheriff's orders, caused twelve men to come together and make oath about the said villein, whether he was the king's villein or william's and it was found that he was the king's villein, so the said roger the serjeant demanded that [william] should surrender him, and he refused, so [roger] sent to the sheriff, who then sent to deliver [the villein], who, however, had escaped and was not to be found, and william makes this appeal because he wishes to keep the chattels of thomas [the villein], to wit, two oxen, one cow, one mare, two pigs, nine sheep, eleven goats. and that this is so the jurors testify. judgment: william and robert in mercy for the false claim. william's amercement, a half-mark. robert's amercement, a half-mark. pledge for the mark, warin, robert's son. let the king have his chattels from william. pledge for the chattels, richard, hervey's son. 3. serlo of ennis-caven appeals osbert of dimiliock and jordan, walter's son, for that they in the king's peace wickedly assaulted, beat and seriously wounded him, so that by reason of the beating three bones were extracted from his head; and this he offers to prove against him under the court's award as a man maimed by that mayhem. and it is testified by the coroners that the wounds when fresh were shown in the county [court], and that [the bones were broken] as aforesaid. and osbert and jordan come and defend word by word. it is considered that osbert do purge himself by ordeal of iron on account of the appeal, for serlo betook himself against osbert in the first instance. and let jordan be in custody until it be known how osbert shall fare. and the other persons who are appealed as accessories are to be under pledge until [osbert's fate] be known. 4. the jurors say that they suspect william fisman of the death of agnes of chilleu, for the day before he had threatened her body and goods. and the four neighboring townships being sworn, suspect him of it. it is considered that he purge himself by water under the assize. 5. william burnell and luke of the well are suspected of the burglary at the house of richard palmer by the jurors of the hundred, and by the four neighboring townships, which are sworn. let them purge themselves by water under the assize. 6. malot crawe appeals robert, godfrey's son, of rape. he comes and defends. it is testified that he thus raped her and that she was seen bleeding. by leave of the justices they made concord on the terms of his espousing her. 7. walter wifin was burgled, and of his chattels taken from his house in the burglary certain boots were found in the house of lefchild of ranam, and the said walter pursues those boots as his. and lefchild said that he bought them in bodmin market for 2 1/2 pence, but he knows not from whom. and besides walter says that eleven ells of linen cloth, part of the stolen goods, were sold in lefchild's house, and all the other proceeds of the burglary, and that lefchild was the receiver of the burglars, namely, robert of hideford and alan the foresters, whom he [walter] had appealed of the crime. and lefchild defends. the jurors on being asked, say that they suspect lefchild of the said receipt. so let him purge himself by water under the assize. 8. eadmer of penwithen appeals martin, robert and thomas of penwithen, for that robert wounded him in the head so that twenty-eight pieces of bone were extracted, and meanwhile martin and thomas held him; and this he offers to deraign against the said robert as a man thereby maimed, under the court's award. and robert comes and defends all of it word by word. it is considered that he purge himself by ordeal of iron. let the others be in custody until it be known how robert shall fare. afterwards eadmer came and withdrew himself, and submitted to an amercement of one mark. pledges, reinfrid, gill's son, and philip his brother. let the other appellees go quit. 9. reginald le teinus accused of the receipt and fellowship of robert the outlaw comes and defends. the jurors say that they suspect him, and the four neighboring townships say that they suspect him of it. so let him purge himself by water under the assize. and there must be inquiry as to richard revel, who was sheriff when the said robert escaped from his custody. 10. osbert of reterth appeals odo hay, for that he assaulted him as he was returning from bodmin market, and in the king's peace and wickedly struck him on the hand with a stick, and afterwards struck him on the arm with his sword so that he is maimed; and this he offers to prove as a maimed man. and odo defends it all. and that [osbert] is maimed is testified by knights sent to see him. judgment: let [odo] purge himself by ordeal of iron because of this appeal. 11. wulward of wadebridge was burgled. and odo hay, lawrence smith, osbert mediciner, and benet his son, william miller, robert of frokemere, and maud his sister, are suspected of the burglary by the jurors of the hundred and by the four nearest townships, which are sworn. let the males purge themselves by water under the assize, and maud by ordeal of iron. roger morand fled for that burglary, and he was living in bodmin, [which town is] therefore in mercy. 12. robert, godfrey's son, appeals philip, william's son, for that he came on the land of [robert's] lord richard fortescue, and wickedly and in the king's peace and in robbery took eight oxen and a mantle, cape, and sword, and carried them off; and this he offers to prove against him by his body under award of the court. and philip comes and defends all of it word by word. it is considered that the appeal is null, for the oxen were not robert's, but richard's. the jurors being asked, say that [philip] did no robbery to [richard]. so richard fortescue is in mercy for a false appeal, and let philip be quit. 13. peter burel appeals anketil of wingely, for that he wickedly in the king's peace assaulted him in the field where he was pasturing his oxen, and beat him, and gave him four wounds in the head, and in robbery took from him an ax and a sword; and this he offers to prove against him; but he shows no wound. and anketil defends. and the county records that [peter] first appealed roger of tregadec of the same robbery and of the same wounds. therefore it is considered that the appeal is null, and let peter be in mercy for a false appeal. his amercement, a half-mark; pledge for it, ralph giffard. 14. the jurors are in mercy for a silly presentment, for they presented an appeal which was made in the hundred [court] and which was not presented in the county [court]. 15. lucy of morwinstow appeals robert de scaccis and roland of kellio and peter of lancarf of robbing her of twenty shillings and eight pence, and of a cloak, price a half-mark. and it is testified by the jurors that they did not rob her, and that she is a hireling, and that a man lay with her in a garden, and the boys hooted her, so that she left her cloak, and the boys took it and pawned it for two gallons of wine. it is considered that robert do give her three pence in respect of the wine and do go quit. and roland and peter neither come nor essoin [present an excuse for nonappearance] themselves. and their pledges were nicholas brother of alfred of bodmin and herbert reeve of bodmin, who are therefore in mercy. 16. osbert church accused of the death of roland, son of reginald of kennel, on the appeal of the said reginald, was detained in gaol and defends word by word. and reginald offers proof by the body of a certain freeman, arkald, who has his [reginald's] daughter to wife, who is to prove in his stead, since he has passed the age of sixty. osbert church defends all of it. the knights of the hundred of penwith say that they suspect him of the said death. the knights of kerrier [hundred] say the same. the knights of penwith [hundred] say the same. the knights of pyder [hundred] say the same. judgment: let him purge himself by water, and reginald is in mercy, for he does not allege sight and hearing, and because he has withdrawn himself, and put another in his place, who neither saw nor heard and yet offered to prove it, and so let both reginald and arkald be in mercy. osbert is purged by the water. osbert's pledges: henry little, henry of penant, ossulf black, roger of trevithow, john of glin, ralph of trelew. 17. roger of wick [was] appealed of the death of brictmer by the appeal of hawise, brictmer's wife, and was captured in flight, as say john of winielton and ralph of mertherin, but the flight is not testified by the hundred. kerier [hundred] says the same. penwith [hundred] says the same. so is considered that he purge himself by water. he is purged. roger's pledges: ralph of trelew, ogier of kurnick, richard, simon's son, alfred malvoisin, everwin of lande, john of kewerion, warin of tiwardeni, baldwin tirel, roger of trevithow, john of glin, william of dunham, thomas, osbert's son. 18. richard, william's son, appealed luke, richard's son, and william, the servant of alan clerk, of robbery and of binding him. the appellees have not come nor essoined themselves. the county together with the wapentake says that they were appealed, not of the king's peace, but of the sheriff's peace, so that the suit was and is in the county [court], and therefore they were not attached to come before the justices. therefore the jurors are in mercy for presenting what they ought not to have presented. 19. william, hawise's son, appeals richard, son of robert of somercotes, for that he came in the king's peace to his house at somercotes, and broke his house and robbed him of...[an abrasion] shillings, and a cape and surcoat, and twenty-five fowls, and twenty shillings worth of corn [grain], and wounded him in the head with the wound that he shows; and this he offers to prove against him as the court shall consider etc. and richard comes and defends the breach of the king's peace and the housebreaking, wounding and robbery, but confesses that he came to a certain house, which william asserts to be his [william's], as to his [richard's] own proper house, which escheated into his hand on the death of roger his villein, and there he took certain chattels which were his villein's and which on his villein's death were his [richard's] own: to wit, five thraves of oats, thirteen sheaves of barley, and twenty-five fowls; and he offers the king twenty shillings for an inquest [to find] whether this be so or no. and william says that richard says this unjustly, for the said roger never had that house nor dwelt therein, nor were those chattels roger's, but he [william] held that house as his own, and the chattels there seized were his. the jurors being questioned whether roger did thus hold the house of richard in villeinage, say, yes. also the coroners and the whole county testify that [william] never showed any wound until now; and the wound that he now shows is of recent date. therefore it is considered that the appeal is null, and let richard go quit, and william be in mercy for his false claim. pledges for the amercement, gilbert, robert's son, and richard, haldeng's son. 20. astin of wispington appeals simon of edlington, for that he wickedly and in the king's peace assaulted him in his meadows and put out his eye, so that he is maimed of that eye; and this he offers to prove etc. simon comes and defends all of it word by word. and the coroners and the county testify that hitherto the appeal has been duly sued, at first by [astin's] wife, and then by [astin himself]. judgment: let law be made, and let it be in the election of the appellee whether he or astin shall carry the iron. he has chosen that astin shall carry it. astin has waged the law. simon's pledges, william of land and his frankpledge and ralph of stures. astin's pledges, roger thorpe, osgot of wispington, and william, joel's brother. afterwards came [the appellor and appellee] and both put themselves in mercy. 21. gilbert of willingham appeals gilbert, geoffrey's son, for that he in the king's peace and wickedly set fire to his house and burned it, so that after the setting fire [the appellor] went forth and raised hue and cry so that his neighbors and the township of willingham came thither, and he showed them [the appellee] in flight and therefore they pursued him with the cry; and this he offers etc. and the appellee defends all of it word by word etc. and the neighbors and the township of willingham being questioned, say that they never saw him in flight, and that [the appellor] never showed him to them. likewise the jurors say that in their belief he appeals him out of spite rather than for just cause. therefore it is considered that the appeal is null, and the appellee is in mercy for a half-mark [7s.]. pledge for the amercement, robert walo. 22. william burel appeals walter morcock, for that he in the king's peace so struck and beat margery, [william's] wife, that he killed the child in her womb, and besides this beat her and drew blood. and william of manby, the beadle, testifies that he saw the wound while fresh and the blood in the wapentake [court]. and the serjeant of the riding and the coroners and the twelve knights testify that they never saw wound nor blood. and so it is considered that the appeal is null, for one part of the appeal being quashed, it is quashed altogether, and william burel is in mercy. let him be in custody. and william manby is in mercy for false testimony. pledges for william's amercement, richard of bilsby, elias of welton. 23. william marshall fled for the death of sigerid, denis' mother, whereof denis appeals him; and he was in the prior of sixhills' frankpledge of sixhills, which is in mercy, and his chattels were two cows and one bullock. afterwards came the prior of sixhills and undertook to have william to right before the justices. and he came, and then denis, sigerid's son, came and appealed him of his mother's death. and it was testified that [denis] had an elder brother, and that nine years are past since [sigerid] died, and that she lived almost a year after she was wounded, and that denis never appealed [william] before now. therefore it is considered that the appeal is null and that denis be in mercy. pledge for the amercement, his father, ralph, son of denis. 24. alice, wife of geoffrey of carlby, appealed william, roger's son, and william his son and roger his son of the death of william her brother. and alice does not prosecute. therefore let her be in mercy and let her be arrested. to judgment against the sheriff who did not imprison the said persons who were attached, whereas they are appealed of homicide, and to judgment also as to a writ which he ought to produce. 25. hawise, thurstan's daughter, appeals walter of croxby and william miller of the death of her father and of a wound given to herself. and she has a husband, robert franchenay, who will not stir in the matter. therefore it is considered that the appeal is null, for a woman has no appeal against anyone save for the death of her husband or for rape. and let robert be in mercy on his wife's account, for a half-mark [7s.], and let the appellees be quit. pledge for robert's amercement, richard dean of mareham, who has lay property. wapentake of aswardhurn. 26. juliana of creeton appeals adam of merle of battery and robbery. and adam does not come, but essoins himself as being in the king's service beyond seas. and for that it is not allowed to anyone appealed of the king's peace to leave the land without a warrant before he has been before justices learned in the law, his pledges are in mercy: to wit, segar of arceles, alan of renington, and robert of searby. adam himself is excused from the plea by the essoin that he has cast. 27. thomas, leofwin's son, appeals alan harvester, for that he in the king's peace assaulted him as he went on the highway, and with his force carried him into alan's house, and struck him on the arm so that he broke a small bone of his arm, whereby he is maimed, and robbed him of his cape and his knife, and held him while eimma, [alan's] wife, cut off one of his testicles and ralph pilate the other, and when he was thus dismembered and ill-treated, the said alan with his force carried him back into the road, whereupon as soon as might be he raised the cry, and the neighbors came to the cry, and saw him thus ill-treated, and then at once he sent to the king's serjeant, who came and found, so [thomas] says, the robbed things in alan's house and then as soon as might be [thomas] went to the wapentake [court] and to the county [court] and showed all this. so inquiry is made of the king's sergeant, who testifies that he came to alan's house and there found the knife and the testicles in a little cup, but found not the cape. also the whole county testifies that [thomas] never before now appealed alan of breaking a bone. and so it is considered that the appeal is null, and that [thomas] be in mercy, and that the other appellees be quit. thomas also appeals emma, alan's wife, for that she in the peace aforesaid after he was placed in her lord's house cut off one of his testicles. he also appeals ralph pilate, for that he cut off the other of his testicles. 28. the twelve jurors presented in their verdict that austin, rumfar's son, appealed ralph gille of the death of his brother, so that [ralph] fled, and that william, rumfar's son, appealed benet carter of the same death, and ranulf, ralph's son, appealed hugh of hyckham of the same death and baldwin of elsham and ralph hoth and colegrim as accessories. and the coroners by their rolls testify this also. but the county records otherwise, namely, that the said ralph gille, benet, hugh, baldwin, ralph [hoth] and gocegrim were all appealed by ranulf, ralph's son, and by no one else, so that four of them, to wit, ralph gille, hugh, benet and colegrim, were outlawed at the suit of the said ranulf, and that the said persons were not appealed by anyone other than the said ranulf. and for that the county could not [be heard to] contradict the coroners and the said jurors who have said their say upon oath, it is considered etc. thereupon the county forestalled the judgment and before judgment was pronounced made fine with 200 pounds [4,000s.] [to be collected throughout the county], franchises excepted. 29. hereward, william's son, appeals walter, hugh's son, for that he in the king's peace assaulted him and wounded him in the arm with an iron fork and gave him another wound in the head; and this he offers to prove by his body as the court shall consider. and walter defends all of it by his body. and it is testified by the coroners and by the whole county that hereward showed his wounds at the proper time and has made sufficient suit. therefore it is considered that there be battle. walter's pledges, peter of gosberton church, and richard hereward's son. hereward's pledges, william his father and the prior of pinchbeck. let them come armed in the quindene of st. swithin at leicester. 30. william gering appeals william cook of imprisonment, to wit, that he with his force in the king's peace and wickedly, while [gering] was in the service of his lord guy at the forge, took him and led him to freiston to the house of william longchamp, and there kept him in prison so that his lord could not get him replevied; and this he offers to prove as the court shall consider. and william cook comes and defends the felony and imprisonment, but confesses that whereas he had sent his lord's servants to seize the beasts of the said guy on account of a certain amercement which [guy] had incurred in the court of [cook's] lord [longchamp], and which though often summoned he had refused to pay, [gering] came and rescued the beasts that had been seized and wounded a servant of [cook's] lord, who had been sent to seize them, whereupon [cook] arrested [gering] until he should find pledges to stand to right touching both the wounding and the rescue, and when [gering's] lord [guy] came for him, [cook] offered to let him be replevied, but this [guy] refused, and afterwards he repeated the offer before the king's serjeant, but even then it was refused, and then [cook] let [gering] go without taking security. and guy says that he puts himself upon the wapentake, whether the imprisonment took place in manner aforesaid, and whether he [guy] at once showed the matter to the king's serjeant, or no. and william cook does the same. and the wapentake says that the alleged [imprisonment] took place in lent, and guy did not show the matter to the wapentake until a fortnight before st. botulph's day. and the county together with the coroners says that they never heard the suit in their court. therefore it is considered that the appeal is null, and guy is in mercy. and let william and those who are appealed as accessories go quit. 31. the jurors say that andrew, sureman's son, appealed peter, leofwin's son, thomas squire and william oildene of robbery. and he does not prosecute. so he and stephen despine and baldwin long are in mercy, and the appellees go without day. afterwards comes andrew and says that [the appellees] imprisoned him by the order of william malesoures in the said william's house, so that he sent to the sheriff that the sheriff might deliver him, whereupon the sheriff sent his serjeant and others thither, who on coming there found him imprisoned and delivered him and he produces witnesses, to wit, nicholas portehors and hugh, thurkill's son, who testify that they found him imprisoned, and he vouches the sheriff to warrant this. and the sheriff, on being questioned, says that in truth he sent thither four lawful men with the serjeant on a complaint made by nicholas portehors on andrew's behalf. and those who were sent thither by the sheriff testify that they found him at liberty and disporting himself in william's house. therefore it is considered that the appeal is null [and andrew is in mercy] for his false complaint and nicholas portehors and hugh, thurkill's son, are in mercy for false testimony. andrew and hugh are to be in custody until they have found pledges [for their amercement]. 32. the jurors say that geoffrey cardun has levied new customs other than he ought and other than have been usual, to wit, in taking from every cart crossing his land at winwick with eels, one stick of eels, and from a cart with greenfish, one greenfish, and from a cart with salmon, half a salmon, and from a cart with herrings, five herrings, whereas he ought to take no custom for anything save for salt crossing his land, to wit, for a cartload, one bole of salt, and in that case the salter ought to have a loaf in return for the salt, and also if the salter's cart breaks down, the salter's horses ought to have pasture on geoffrey's land without challenge while he repairs his cart. and geoffrey comes and confesses that he takes the said customs, and ought to take them, for he and his ancestors have taken them from the conquest of england, and he puts himself on the grand assize of our lord the king, and craves that a recognition be made whether he ought to take those customs or no. and afterwards he offers the king twenty shillings that this action may be put before sir geoffrey fitzpeter [the justiciar]. pledge for the twenty shillings, richard of hinton. 33. the jurors say that hugh, son of walter priest, was outlawed for the death of roger rombald at the suit of robert rombald, and afterwards returned under the [protection of the] king's writ, and afterwards was outlawed for the same death on the appeal of geoffrey, thurstan's son. the county therefore is asked by what warrant they outlawed the same man twice for the same death, and says that of a truth in king richard's time the said hugh was outlawed at the suit of one lucy, sister of the said roger, so that for a long time afterwards he hid himself; and at length he came into the county [court] and produced letters of sir geoffrey fitzpeter in the form following: "g. fitzpeter etc. to the sheriff of northamptonshire, greeting, know thou that the king hath pardoned to hugh, son of the priest of grafton, his flight and the outlawry adjudged to him for the death of a certain slain man, and hath signified to us by his letters that we be aiding to the said hugh in reestablishing the peace between him and the kinsfolk of the slain; wherefore we command thee that thou be aiding to the said hugh in making the peace aforesaid, and do us to wit by thy letters under seal what thou hast done in this matter, since we are bound to signify the same to the king. in witness etc. by the king's writ from beyond seas." and the said letters being read in full county [court] the county told the said hugh that he must find pledges that he would be in the king's peace, and he went away to find pledges, and afterwards did not appear. but the kinsfolk of the slain, having heard that hugh had returned after his outlawry, came to the next county [court] and robert rombald produced geoffrey, thurstan's son, who said that if he saw the said hugh he would sue against him the death of the said roger, who was [his kinsman]. and the county showed him how hugh had brought the justiciar's letters pardoning him the flight and outlawry, and that he was to find pledges to stand to the king's peace, but had not returned. whereupon the king's serjeant was ordered to seek hugh and bring him to a later county [court]. and at a later county [court] geoffrey offered himself against hugh, and hugh did not appear; whereupon the king's serjeant being questioned said that he had not found him, and the county advised [geoffrey] to come to another county [court], because if in the meantime hugh could be found, he would be brought to the county [court]. then at the third county [court] the said geoffrey offered himself, and it was testified by the serjeant that hugh had not yet been found, wherefore the county said that as hugh would not appear to the king's peace, he must bear the wolf's head as he had done before. to judgment against the coroners and the twelve jurors. 34. robert of herthale, arrested for having in self-defense slain roger, swein's son, who had slain five men in a fit of madness, is committed to the sheriff that he may be in custody as before, for the king must be consulted about this matter. the chattels of him who killed the five men were worth two shillings, for which richard [the sheriff must account]. 35. sibil, engelard's daughter, appeals ralph of sandford, for that he in the king's peace and wickedly and in breach of the peace given to her in the county [court] by the sheriff, came to the house of her lord [or husband] and broke her chests and carried off the chattels, and so treated her that he slew the child that was living in her womb. afterwards she came and said that they had made a compromise and she withdrew herself, for they have agreed that ralph shall satisfy her for the loss of the chattels upon the view and by the appraisement of lawful men; and ralph has assented to this. 36. william pipin slew william [or john] guldeneman and fled. he had no chattels. let him be exacted. and hugh fuller was taken for this death and put in gaol because the said john [or william] was slain in his house. and hugh gives to the king his chattels which were taken with him, that he may have an inquest [to find] whether he be guilty thereof or no. the jurors say that he is not guilty, and so let him go quit thereof. and william picot is in mercy for having sold hugh's chattels before he was convicted of the death, and for having sold them at an undervalue, for he sold them, as he says, for three shillings, and the jurors say that they were worth seventeen shillings, for which william picot and those who were his fellows ought to account. and william says that the chattels were sold by the advice of his fellows, and his fellows deny this. 37. robert white slew walter of hugeford and fled. the jurors say that he was outlawed for the death, and the county and the coroners say that he was not outlawed, because no one sued against him. and because the jurors cannot [be heard to] contradict the county and the coroners, therefore they are in mercy, and let robert be exacted. his chattels were [worth] fifteen shillings, for which r. of ambresleigh, the sheriff, must account. 38. elyas of lilleshall fled to church for the death of a woman slain at lilleshall. he had no chattels. he confessed the death and abjured the realm. alice crithecreche and eva of lilleshall and aldith and mabel, geoffrey and robert of lilleshall, and peter of hopton were taken for the death of the said woman slain at lilleshall. and alice, at once after the death, fled to the county of stafford with some of the chattels of the slain, so it is said, and was taken in that county and brought back into shropshire and there, as the king's serjeant and many knights and lawful men of the county testify, in their presence she said, that at night she heard a tumult in the house of the slain; whereupon she came to the door and looked in, and saw through the middle of the doorway four men in the house, and they came out and caught her, and threatened to kill her unless she would conceal them; and so they gave her the pelf [booty] that she had. and when she came before the [itinerant] justices she denied all this. therefore she has deserved death, but by way of dispensation [the sentence is mitigated, so] let her eyes be torn out. the others are not suspected, therefore let them be under pledges. 39. william, john's son, appeals walter, son of ralph hose, for that when [william's] lord guy of shawbury and [william] had come from attending the pleas of our lord the king in the county court of shropshire, there came five men in the forest of haughmond and there in the king's peace and wickedly assaulted his lord guy, and so that [walter], who was the fourth among those five, wounded guy and was accessory with the others in force as aid so that guy his lord was killed, and after having wounded his lord he [walter] came to william and held him so that he could not aid his lord; and this he offers to deraign [determine by personal combat] against him as the court shall consider. and walter comes and defends all of it word by word as the court etc. it is considered that there be battle [combat] between them. the battle [combat] is waged. day is given them, at oxford on the morrow of the octave of all saints, and then let them come armed. and ralph [walter's father] gives the king a half-mark that he may have the custody of his son, [for which sum] the pledges are john of knighton and reiner of acton, and he is committed to the custody of ralph hose, reiner of acton, john of knighton, reginald of leigh, adam of mcuklestone, william of bromley, stephen of ackleton, eudo of mark. 40. robert, son of robert of ferrers, appeals ranulf of tattesworth, for that he came into robert's garden and wickedly and in the king's peace assaulted robert's man roger, and beat and wounded him so that his life was despaired of, and robbed him [roger?] of a cloak, a sword, a bow and arrows: and the said roger offers to prove this by his body as the court shall consider. and ranulf comes and defends the whole of it, word by word, and offers the king one mark of silver that he may have an inquest of lawful knights [to say] whether he be guilty thereof or no. also he says that roger has never until now appealed him of this, and prays that this be allowed in his favor. [ranulf's] offering is accepted. the jurors say that in truth there was some quarrel between robert's gardener, osmund, and some footboys, but ranulf was not there, and they do not suspect him of any robbery or any tort done to robert or to osmund. also the county records that the knights who on robert's complaint were sent to view osmund's wounds found him unwounded and found no one else complaining, and that robert in his plaint spoke of osmund his gardener and never of roger, and that roger never came to the county [court] to make this appeal. therefore it is considered that ranulf be quit, and robert and roger in mercy. pledge for ranulf's mark, philip of draycot. pledges for the amercement, henry of hungerhill, and richard meverell. pledge for roger, the said robert. 41. one l. is suspected by the jurors of being present when reinild of hemchurch was slain, and of having aided and counseled her death. and she defends. therefore let her purge herself by the ordeal of iron; but as she is ill, the ordeal is respited until her recovery. 42. andrew of burwarton is suspected by the jurors of the death of one hervey, for that he concealed himself because of that death. therefore let him purge himself by ordeal of water. 43. godith, formerly wife of walter palmer, appeals richard of stonall, for that he in the king's peace wickedly and by night with his force came to her house and bound her and her husband, and afterwards slew the said walter her husband; and this she offers to prove against him as wife of the slain as the court shall consider. and he defends all of it. and the jurors and the whole neighborhood suspect him of that death. and so it is considered that he purge himself by ordeal of iron for he has elected to bear the iron. 44. the jurors of oflow hundred say that the bailiffs of tamworth have unjustly taken toll from the knights of staffordshire, to wit, for their oxen and other beasts. and the men of lichfield complain that likewise they have taken toll from them, more especially in staffordshire. and the bailiffs deny that they take anything from the knights in staffordshire. and for that they cannot [be heard to] contradict the jurors, the bailiffs are in mercy. as to the men of lichfield, [the tamworth bailiffs] say that they ought to have, and in king henry's time had, toll of them, more especially of the merchants, as well in staffordshire as in warwickshire. and the burgesses of lichfield offer the king a half-mark for an inquest by the county. and the county records that in king henry's time the men of lichfield did not pay toll in staffordshire. therefore the bailiffs are in mercy. chapter 7 the times 1215-1272 baron landholders' semi-fortified stone manor houses were improved and extended. many had been licensed to be embattled or crenelated [wall indented at top with shooting spaces]. they were usually quadrangular around a central courtyard. the central and largest room was the hall, where people ate and slept. if the hall was on the first floor, the fire might be at a hearth in the middle of the floor. sometimes the lord had his own chamber, with a sleeping loft above it. having a second floor necessitated a fireplace in the wall so the smoke could go up two floors to the roof. other rooms each had a fireplace. often the hall was on the second floor and took up two stories. there was a fireplace on one wall of the bottom story. there were small windows around the top story and on the inside of the courtyard. they were usually covered with oiled paper. windows of large houses were of opaque glass supplied by a glassmaking craft. the glass was thick, uneven, distorted, and greenish in color. the walls were plastered. the floor was wood with some carpets. roofs were timbered with horizontal beams. many roofs had tiles supplied by the tile craft, which baked the tiles in kilns or over an open fire. because of the hazard of fire, the kitchen was often a separate building, with a covered way connecting it to the hall. it had one or two open fires in fireplaces, and ovens. sometimes there was a separate room for a dairy. furniture included heavy wood armchairs for the lord and lady, stools, benches, trestle tables, chests, and cupboards. outside was an enclosed garden with cabbages, peas, beans, beetroots, onions, garlic, leeks, lettuce, watercress, hops, herbs, nut trees for oil, some flowers, and a fish pond and well. bees were kept for their honey. nobles, doctors, and attorneys wore tunics to the ankle and an over-tunic almost as long, which was lined with fur and had long sleeves. a hood was attached to it. a man's hair was short and curled, with bangs on the forehead. the tunic of merchants and middle class men reached to the calf. the laborer wore a tunic that reached to the knee, cloth stockings, and shoes of heavy felt, cloth, or perhaps leather. ladies wore a full-length tunic with moderate fullness in the skirt, and a low belt, and tight sleeves. a lady's hair was concealed by a round hat tied on the top of her head. over her tunic, she wore a cloak. monks and nuns wore long black robes with hoods. the barons now managed and developed their estates to be as productive as possible, often using the successful management techniques of church estates. they kept records of their fields, tenants, and services owed by each tenant, and duties of the manor officers, such as supervision of the ploughing and harrowing. annually, the manor's profit or loss for the year was calculated. most manors were self-supporting except that iron for tools and horseshoes and salt for curing usually had to be obtained elsewhere. wine, tar, canvas and millstones were imports from other countries and bought at fairs, as was fish, furs, spices, and silks. sheep were kept in such large numbers that they were susceptible to a new disease "scab". every great household was bound to give alms. as feudalism became less military and less rough, daughters were permitted to inherit fiefs. it became customary to divide the property of a deceased man without a son equally among his daughters. lords were receiving homage from all the daughters and thereby acquiring marriage rights over all of them. also, if a son predeceased his father but left a child, that child would succeed to the father's land in the same way that the deceased would have. manors averaged about ten miles distance between each other, the land in between being unused and called "wasteland". statutes after a period of civil war proscribing the retaking of land discouraged the enclosure of waste land. some villeins bought out their servitude by paying a substitute to do his service or paying his lord a firm (from hence, the words farm and farmer) sum to hire an agricultural laborer in his place. this made it possible for a farm laborer to till one continuous piece of land instead of scattered strips. looms were now mounted with two bars. women did embroidery. the clothing of most people was made at home, even sandals. the village tanner and bootmaker supplied long pieces of soft leather for more protection than sandals. tanning mills replaced some hand labor. the professional hunter of wolves, lynx, or otters supplied head coverings. every village had a smith and possibly a carpenter for construction of ploughs and carts. the smith obtained coal from coal fields for heating the metal he worked. horse harnesses were homemade from hair and hemp. there were watermills and/or windmills for grinding grain, for malt, and/or for fulling cloth. the position of the sails of the windmills was changed by manual labor when the direction of the wind changed. most men wore a knife because of the prevalence of murder and robbery. it was an every day event for a murderer to flee to sanctuary in a church, which would then be surrounded by his pursuers while the coroner was summoned. usually, the fugitive would confess, pay compensation, and agree to leave the nation permanently. it had been long customary for the groom to endow his bride in public at the church door. this was to keep her and her children if he died first. if dower was not specified, it was understood to be one-third of all lands and tenements. from 1246, priests taught that betrothal and consummation constituted irrevocable marriage. county courts were the center of decision-making regarding judicial, fiscal, military, and general administrative matters. the writs for the conservation of the peace, directing the taking of the oath, the pursuit of malefactors, and the observance of watch and ward, were proclaimed in full county court; attachments were made in obedience to them in the county court. the county offices were: sheriff, coroner, escheator, and constable or bailiff. there were 28 sheriffs for 38 counties. the sheriff was usually a substantial landholder and a knight who had been prominent in the local court. he usually had a castle in which he kept persons he arrested. he no longer bought his office and collected certain rents for himself, but was a salaried political appointee of the king. he employed a deputy or undersheriff, who was an attorney, and clerks. if there was civil commotion or contempt of royal authority, the sheriff had power to raise a posse of armed men to restore order [posse comitatus: power of the county]. the coroner watched the interests of the crown and had duties in sudden deaths, treasure trove, and shipwreck cases. there were about five coroners per county and they served for a number of years. they were chosen by the county court. the escheator was appointed annually by the treasurer to administer the crown's rights in feudal land, which until 1242 had been the responsibility of the sheriff. he was usually chosen from the local gentry. the constable and bailiff operated at the hundred and parish level to detect crime and keep the peace. they assisted sheriffs and justices of the peace, organized watches for criminals and vagrants at the village level, and raised the hue and cry along the highway and from village to village in pursuit of offenders who had committed felony or robbery. the constables also kept the royal castles; they recruited, fed, and commanded the castle garrison. county knights served sheriffs, coroners, escheators, and justices on special royal commissions of gaol-delivery. they sat in judgment in the county court at its monthly meetings, attended the two great annual assemblies when the lord, knights and freeholders of the county gathered to meet the itinerant justices who came escorted by the sheriff and weapon bearers. they served on the committees which reviewed the presentments of the hundreds and village, and carried the record of the county court to westminster when summoned there by the kings' justices. they served on the grand assize. as elected representatives of their fellow knights of the county, they assessed any taxes due from each hundred. election might be by nomination by the sheriff from a fixed list, by choice, or in rotation. they investigated and reported on local abuses and grievances. the king's justices and council often called on them to answer questions put to them on oath. in the villages, humbler freeholders and sokemen were elected to assess the village taxes. six villeins answered for the village's offenses before the royal itinerant justice. reading and writing in the english language was taught. the use of english ceased to be a mark of vulgarity. in 1258 the first governmental document was issued in english as well as in latin and french. latin started falling into disuse. boys of noblemen were taught reading, writing, latin, a musical instrument, athletics, riding, and gentlemanly conduct. girls were taught reading, writing, music, dancing, and perhaps household nursing and first aid, spinning, embroidery, and gardening. girls of high social position were also taught riding and hawking. grammar schools taught, in latin, grammar, dialectic (ascertaining word meaning by looking at its origin, its sound (e.g. soft or harsh), its power (e.g. robust and strong sound), its inflection, and its order; and avoiding obscurity and ambiguity in statements), and rhetoric [art of public speaking, oratory, and debate]. the teacher possessed the only complete copy of the latin text, and most of the school work was done orally. though books were few and precious, the students read several latin works. girls and boys of high social position usually had private teachers for grammar school, while boys of lower classes were sponsored at grammar schools such as those at oxford. discipline was maintained by the birch or rod. there was no examination for admission as an undergraduate to oxford, but a knowledge of latin with some skill in speaking latin was a necessary background. the students came from all backgrounds. some had their expenses paid by their parents, while others had the patronage of a churchman, a religious house, or a wealthy layman. they studied the "liberal arts", which derived its name from "liber" or free, because they were for the free men of rome rather than for the economic purposes of those who had to work. the works of greek authors such as aristotle were now available; the european monk thomas aquinas had edited aristotle's works to reconcile them to church doctrine. he opined that man's intellectual use of reason did not conflict with the religious belief that revelation came only from god, because reason was given to man by god. he shared aristotle's belief that the earth was a sphere, and that the celestial bodies moved around it in perfect circles. latin learning had already been absorbed without detriment to the church. a student at oxford would become a master after graduating from a seven year course of study of the seven liberal arts: [grammar, rhetoric (the source of law), aristotelian logic (which differentiates the true from the false), arithmetic, including fractions and ratios, (the foundation of order), geometry, including methods of finding the length of lines, the area of surfaces, and the volume of solids, (the science of measurement), astronomy (the most noble of the sciences because it is connected with divinity and theology), music and also aristotle's philosophy of physics, metaphysics, and ethics; and then lecturing and leading disputations for two years. he also had to write a thesis on some chosen subject and defend it against the faculty. a master's degree gave one the right to teach. further study for four years led to a doctorate in one of the professions: theology and canon or civil law. there were about 1,500 students in oxford. they drank, played dice, quarreled a lot and begged at street corners. there were mob fights between students from the north and students from the south and between students and townsmen. but when the mayor of oxford hanged two students accused of being involved in the killing of a townswoman, many masters and students left for cambridge. in 1214, a charter created the office of chancellor of the university at oxford. he was responsible for law and order and, through his court, could fine, imprison, and excommunicate offenders and expel undesirables such as prostitutes from the town. he had authority over all crimes involving scholars, except murder and mayhem. the chancellor summoned and presided over meetings of the masters and came to be elected by indirect vote by the masters who had schools, usually no more than a room or hall with a central hearth which was hired for lectures. students paid for meals there. corners of the room were often partitioned off for private study. at night, some students slept on the straw on the floor. six hours of sleep were considered sufficient. in 1231, the king ordered that every student must have his name on the roll of a master and the masters had to keep a list of those attending his lectures. in 1221 the friars established their chief school at oxford. they were bound by oaths of poverty, obedience, and chastity, but were not confined within the walls of a monastery. they walked barefoot from place to lace preaching. they begged for their food and lodgings. they replaced monks, who had become self-indulgent, as the most vital spiritual force among the people. the first college was founded in 1264 by walter de merton, former chancellor to the king, at oxford. a college had the living arrangements of a hall, with the addition of monastic-type rules. a warden and about 30 scholars lived and ate meals together in the college buildings. merton college's founding documents provided that: "the house shall be called the house of the scholars of merton, and it shall be the residence of the scholars forever. . . there shall be a constant succession of scholars devoted to the study of letters, who shall be bound to employ themselves in the study of arts or philosophy, the canons or theology. let there also be one member of the collegiate body, who shall be a grammarian, and must entirely devote himself to the study of grammar; let him have the care of the students in grammar, and to him also let the more advanced have recourse without a blush, when doubts arise in their faculty. . . there is to be one person in every chamber, where scholars are resident, of more mature age than the others, who is to make his report of their morals and advancement in learning to the warden. . . the scholars who are appointed to the duty of studying in the house are to have a common table, and a dress as nearly alike as possible. . . the members of the college must all be present together, as far as their leisure serves, at the canonical hours and celebration of masses on holy and other days. . . the scholars are to have a reader at meals, and in eating together they are to observe silence, and to listen to what is read. in their chambers, they must abstain from noise and interruption of their fellows; and when they speak they must use the latin language. . . a scrutiny shall be held in the house by the warden and the seniors, and all the scholars there present, three times a year; a diligent inquiry is to be instituted into the life, conduct, morals, and progress in learning, of each and all; and what requires correction then is to be corrected, and excesses are to be visited with condign punishment. . ." educated men (and those of the 1200s through the 1500s), believed that the earth was the center of the universe and that it was surrounded by a giant spherical dome on which the stars were placed. the sun and moon and planets were each on a sphere around the earth that was responsible for their movements. the origin of the word "planet" meant "wanderer" because the motion of the planets changed in direction and speed. astrology explained how the position of the stars and planets influenced man and other earthly things. for instance, the position of the stars at a person's birth determined his character. the angle and therefore potency of the sun's rays influenced climate, temperament, and changes of mortal life such as disease and revolutions. unusual events such as the proximity of two planets, a comet, an eclipse, a meteor, or a nova were of great significance. a star often was thought to presage the birth of a great man or a hero. there was a propitious time to have a marriage, go on a journey, make war, and take herbal medicine or be bled by leeches, the latter of which was accompanied by religious ceremony. cure was by god, with medical practitioners only relieving suffering. but there were medical interventions such as pressure and binding were applied to bleeding. arrow and sword wounds to the skin or to any protruding intestine were washed with warm water and sewn up with needle and silk thread. ribs were spread apart by a wedge to remove arrow heads. fractured bones were splinted or encased in plaster. dislocations were remedied. hernias were trussed. bladder stones blocking urination were pushed back into the bladder or removed through an artificial opening in the bladder. surgery was performed by butchers, blacksmiths, and barbers. roger bacon, an oxford master, began the science of physics. he read arab writers on the source of light rays being from the object seen, the nature of refraction and reflection of light, and the properties of lenses. he studied the radiation of light and heat. he studied angles of reflection in plane, spherical, cylindrical, and conical mirrors, in both their concave and convex aspects. he did experiments in refraction in different media, e.g. air, water, and glass, and knew that the human cornea refracted light, and that the human eye lens was doubly convex. he comprehended the magnifying power of convex lenses and conceptualized the combination of lenses which would increase the power of vision by magnification. he realized that rays of light pass so much faster than those of sound or smell that the time is imperceptible to humans. he knew that rays of heat and sound penetrate all matter without our awareness and that opaque bodies offered resistance to passage of light rays. he knew the power of parabolic concave mirrors to cause parallel rays to converge after reflection to a focus and knew that a mirror could be produced that would start a fire at a fixed distance. these insights made it possible for jewelers and weavers to use lenses to view their work instead of glass globes full of water, which distorted all but the center of the image: "spherical aberration". the lens, whose opposite surfaces were sections of spheres, took the place of the central parts of the globe over the image. he knew about magnetic poles attracting, if different and repelling, if the same, and the relation of magnets' poles to those of the heavens and earth. he calculated the circumference of the world and the latitude and longitude of terrestrial positions. he foresaw sailing around the world. bacon began the science of chemistry when he took the empirical knowledge as to a few metals and their oxides and some of the principal alkalis, acids, and salts to the abstract level of metals as compound bodies the elements of which might be separated and recomposed and changed among the states of solid, liquid, and gas. when he studied man's physical nature, health, and disease, he opined that the usefulness of a talisman was not to bring about a physical change, but to bring the patient into a frame of mind more conducive to physical healing. he urged that there be experiments in chemistry to develop medicinal drugs. he studied different kinds of plants and the differences between arable land, forest land, pasture land, and garden land. he studied the planetary motions and astronomical tables to forecast future events. he did calculations on days in a month and days in a year which later contributed to the legal definition of a leap year. bacon was an extreme proponent of the inductive method of finding truths, e.g. by categorizing all available facts on a certain subject to ascertain the natural laws governing it. his contribution to the development of science was abstracting the method of experiment from the concrete problem to see its bearing and importance as a universal method of research. he advocated changing education to include studies of the natural world using observation, exact measurement, and experiments. his explanation of a rainbow as a result of natural laws was contrary to theological opinion that a rainbow was placed in the heavens to assure mankind that there was not to be another universal deluge. the making and selling of goods diverged e.g. as the cloth merchant severed from the tailor and the leather merchant severed from the butcher. these craftsmen formed themselves into guilds, which sought charters to require all craftsmen to belong to the guild of their craft, to have legal control of the craft work, and be able to expel any craftsman for disobedience. these guilds were composed of master craftsmen, their journeymen, and apprentices. these guilds determined the wages and working conditions of the craftsmen and petitioned the borough authorities for ordinances restraining trade, for instance by controlling the admission of outsiders to the craft, preventing foreigners from selling in the town except at fairs, limiting purchases of raw materials to suppliers within the town, forbidding night work, restricting the number of apprentices to each master craftsmen, and requiring a minimum number of years for apprenticeships. in return, these guilds assured quality control. in some boroughs, they did work for the town, such as maintaining certain defensive towers or walls of the town near their respective wards. in some boroughs, fines for infractions of these regulations were split between the guild and the government. in some towns, the merchant guilds attempted to directly regulate the craft guilds. crafts fought each other. there was a street battle with much bloodshed between the goldsmiths and the parmenters and between the tailors and the cordwainers in 1267 in london. there was also a major fight between the goldsmiths and the tailors in 1268. the parish clerks' company was chartered in 1233. the citizens of london had a common seal for the city. london merchants traveled throughout the nation with goods to sell exempt from tolls. most of the london aldermen were woolmongers, vintners, skinners, and grocers by turns or carried on all these branches of commerce at once. jews were allowed to make loans with interest up to 2d. a week for 20s. lent. there are three inns in london. inns typically had narrow facades, large courtyards, lodging and refreshment for the well-off, warehousing and marketing facilities for merchants, and stabling and repairs for wagons. caregiving infirmaries such as "bethlehem hospital" were established in london. one was a lunatic infirmary founded by the sheriff of london. only tiles were used for roofing in london, because wood shingles were fire hazards and fires in london had been frequent. some areas near london are disclaimed by the king to be royal forest land, so all citizens could hunt there and till their land there without interference by the royal foresters. the sheriff's court in london lost its old importance and handled mainly trespass and debt cases, while important cases went to the hustings, which was presided over by the mayor with the sheriffs and aldermen in attendance. from the early 1200s, the mayor's court took on the work which the weekly husting could not manage. this consisted mostly of assault and robbery cases. murder and manslaughter cases were left to the royal courts. london aldermen were elected by the citizens of their respective wards in wardmotes, in which was also arranged the watch, protection against fire, and probably also assessment of the taxes within the ward. there was much effort by the commoners to influence the governance of the city. in 1261 they forced their way into the townmote and by this brute show of strength, which threatened riot, they made their own candidate mayor. subsequent elections were tumultuous. the tower of london now had outer walls of fortress buildings surrounded by a wide and deep moat, over which was one stone causeway and wooden drawbridge. within this was an inner curtain wall with twelve towers and an inner moat. the palace within was a principal residence of english monarchs, whose retinue was extensive, including the chief officers of state: lord high steward, lord high chancellor, lord high treasurer, lord great chamberlain, lord high constable, keeper of the seals, and the king's marshall; lesser officials such as the chamberlain of the candles, keeper of the tents, master steward of the larder, usher of the spithouse, marshall of the trumpets, keeper of the books, keeper of the dishes and of the cups, and steward of the buttery; and numbers of cat hunters, wolf catchers, clerks and limners, carters, water carriers, washerwomen and laundresses, chaplains, lawyers, archers, huntsmen, hornblowers, barbers, minstrels, guards and servitors, and bakers and confectioners. the fortress also contained a garrison, armory, chapels, stables, forge, wardrobe for a tailor's workroom and secure storage of valuable clothes, silver plate, and expensive imports such as sugar, rice, almonds, dried fruits, cinnamon, saffron, ginger, galingale, zedoary, pepper, nutmeg, and mace. there was a kitchen with courtyard for cattle, poultry, and pigs; dairy, pigeon loft, brewery, beehives, fruit stores, gardens for vegetables and herbs; and sheds for gardeners. there was also a mint, which minted a gold penny worth 2s. of silver, a jewel house, and a menagerie (with leopards, lions, a bear, and an elephant). the fortress also served as a state prison. most prisoners there had opposed the royal will; they were usually permitted to live in quarters in the same style they were used to, including servants and visits by family and friends. but occasionally prisoners were confined in irons in dark and damp dungeons. the king's family, immediate circle, and most distinguished guests dined elegantly in the great hall at midday. they would first wash their hands in hot water poured by servants over bowls. the table had silver plate, silver spoons, and cups of horn, crystal, maple wood, or silver laid on a white cloth. each guest brought his own knife in a leather sheath attached to a belt or girdle. a procession of servitors brought the many dishes to which the gentlemen helped the ladies and the young their seniors by placing the food in scooped-out half-loaves of bread that were afterwards distributed to the poor. a wine cup was handed around the table. in the winter after dinner, there would often be games of chess or dice or songs of minstrels, and sometimes dancing, juggler or acrobat displays, or storytelling by a minstrel. in the summer there were outdoor games and tournaments. hunting with hounds or hawks was popular with both ladies and gentlemen. the king would go to bed on a feather mattress with fur coverlet that was surrounded by linen hangings. his grooms would sleep on trundle beds in the same room. the queen likewise shared her bedchamber with several of her ladies sleeping on trundle beds. breakfast was comprised of a piece of bread and a cup of wine taken after the daily morning mass in one of the chapels. sometimes a round and deep tub was brought into the bedchamber by servants who poured hot water onto the bather in the tub. baths were often taken in the times of henry iii, who believed in cleanliness and sanitation. henry iii was also noted for his luxurious tastes. he had a linen table cloth, goblets of mounted cocoa-nut, a glass cup set in crystal, and silk and velvet mattresses, cushions, and bolster. he had many rooms painted with gold stars, green and red lions, and painted flowers. to his sister on her marriage, he gave goldsmith's work, a chess table, chessmen in an ivory box, silver pans and cooking vessels, robes of cloth of gold, embroidered robes, robes of scarlet, blue, and green fine linen, genoese cloth of gold, two napkins, and thirteen towels. in the king's 1235 grant to oxford, the mayor and good men were authorized to take weekly for three years 1/2 d. on every cart entering the town loaded with goods, if it was from the county, or 1d. if it came from outside the county; 1/4 d. for every horse load, except for brushwood; 1/2 d. on every horse, mare, ox, or cow brought to sell; and 1/2 d. for every five sheep, goats, or pigs. english ships had one mast with a square sail. the hulls were made of planks overlapping each other. there was a high fore castle [tower] on the bow, a top castle on the mast, and a high stern castle from which to shoot arrows down on other ships. there were no rowing oars, but steering was still by an oar on the starboard side of the ship. the usual carrying capacity was 30 tuns [big casks of wine each with about 250 gallons]. on the coasts there were lights and beacons. harbors at river mouths were kept from silting up. ships were loaded from piers. the construction of london bridge had just been finished. bricks began to be imported for building. about 10% of the population lived in towns. churches had stained glass windows. newcastle-on-tyne received these new rights: 1. and that they shall justly have their lands and tenures and mortgages and debts, whoever owes them to them. 2. concerning their lands and tenures within the town, right shall be done to them according to the custom of the city winton. 3. and of all their debts which are lent in newcastle-on-tyne and of mortgages there made, pleas shall be held at newcastle-on-tyne. 4. none of them shall plead outside the walls of the city of newcastle-on-tyne on any plea, except pleas of tenures outside the city and except the minters and my ministers. 5. that none of them be distrained by any without the said city for the repayment of any debt to any person for which he is not capital debtor or surety. 6. that the burgesses shall be quit of toll and lastage [duty on a ship's cargo] and pontage [tax for repairing bridges] and have passage back and forth. 7. moreover, for the improvement of the city, i have granted them that they shall be quit of year's gift and of scotale [pressure to buy ale at the sheriff's tavern], so that my sheriff of newcastle-on-tyne or any other minister shall not make a scotale. 8. and whosoever shall seek that city with his merchandise, whether foreigners or others, of whatever place they may be, they may come sojourn and depart in my safe peace, on paying the due customs and debts, and any impediment to these rights is prohibited. 9. we have granted them also a merchant guild. 10. and that none of them [in the merchant guild] shall fight by combat. the king no longer lives on his own from income from his own lands, but takes money from the treasury. a tax of a percentage of 1/15 th of personal property was levied in 1225 for a war, in return for which the king signed the magna carta. it was to be paid by all tenants-in-chief, men of the royal domain, burgesses of the boroughs and cities, clerical tenants-in-chief, and religious houses. the percentage tax came to be used frequently and ranged from about 1/40 th to 1/5 th. in 1294, this tax was bifurcated into one percentage amount for the rural districts and a higher one for urban districts, because the burgesses had greater wealth and much of it was hard to uncover because it was in the possession of customers and debtors. it was usually 1/10 th for towns and royal domains and 1/15 th in the country. this amount of money collected by this tax increased with the wealth of the country. the king takes custody of lands of lunatics and idiots, as well as escheats of land falling by descent to aliens. henry iii took 20s. from his tenants-in-chief for the marriage of his daughter, and two pounds for the knighting of his son. by 1250, the king was hiring soldiers at 2s. per day for knights, and 9d. a day for less heavily armed soldiers, and 6d. a day for crossbowmen. some castle-guard was done by watchmen hired at 2d. a day. ships were impressed when needed. sometimes private ships were authorized to ravage the french coasts and take what spoil they could. while king henry iii was underage, there was much controversy as to who should be his ministers of state, such as justiciar, chancellor, and treasurer. this led to the concept that they should not be chosen by the king alone. after he came of age, elected men from the baronage fought to have meetings and his small council in several conferences called great councils or parliaments (from french "to speak the mind") to discuss the levying of taxes and the solution of difficult legal cases, the implementation of the magna carta, the appointment of the king's ministers and sheriffs, and the receipt and consideration of petitions. the barons paid 1/30 th tax on their moveable property to have three barons of their choice added to the council. statutes were enacted. landholders were given the duty of electing four of their members in every county to ensure that the sheriff observed the law and to report his misdemeanors to the justiciar. they were also given the duty of electing four men from the county from whom the exchequer was to choose the sheriff of the year. earl montfort and certain barons forced king henry iii to summon a great council or parliament in 1265 in which the common people were represented officially by two knights from every county, two burgesses from every borough, and two representatives from each major port. so the king's permanent small council became a separate body from parliament and its members took a specific councilor's oath in 1257 to give faithful counsel, to keep secrecy, to prevent alienation of ancient demesne, to procure justice for the rich and poor, to allow justice to be done on themselves and their friends, to abstain from gifts and misuse of patronage and influence, and to be faithful to the queen and to the heir. the law the barons forced successive kings to sign the magna carta until it became the law of the land. it became the first statute of the official statute book. its provisions express the principle that a king is bound by the law and is not above it. however, there is no redress if the king breaches the law. the magna carta was issued by john in 1215. a revised version was issued by henry iii in 1225 with the forest clauses separated out into a forest charter. the two versions are replicated together, with the formatting of each indicated in the titles below. {magna carta 1215} magna carta 1215 & 1225 magna carta 1225 {john, by the grace of god, king of england, lord of ireland, duke of normandy and aquitaine, and count of anjou: to the archbishops, bishops, abbots, earls, barons, justiciaries, foresters, sheriffs, reeves, ministers, and all bailiffs and others, his faithful subjects, greeting. know ye that in the presence of god, and for the health of our soul, and the souls of our ancestors and heirs, to the honor of god, and the exaltation of holy church, and amendment of our realm, by the advice of our reverend fathers, stephen, archbishop of canterbury, primate of all england, and cardinal of the holy roman church; henry, archbishop of dublin; william of london, peter of winchester, jocelin of bath and glastonbury, hugh of lincoln, walter of worcester, william of coventry, and benedict of rochester, bishops; master pandulph, the pope's subdeacon and familiar; brother aymeric, master of the knights of the temple in england; and the noble persons, william marshall, earl of pembroke; william, earl of salisbury; william, earl of warren; william, earl of arundel; alan de galloway, constable of scotland; warin fitz-gerald, peter fitz-herbert, hubert de burgh, seneshal of poitou, hugh de neville, matthew fitz-herbert, thomas basset, alan basset, philip daubeny, robert de roppelay, john marshall, john fitz-hugh, and others, our liegemen:} henry by the grace of god, king of england, lord of ireland, duke of normandy and guyan and earl of anjou, to all archbishops, bishops, abbots, priors, earls, barons, sheriffs, provosts, officers and to all bailiffs and other our faithful subjects which shall see this present charter, greeting. know ye that we, unto the honor of almighty god, and for the salvation of the souls of our progenitors and successors kings of england, to the advancement of holy church and amendment of our realm, of our mere and free will, have given and granted to all archbishops, bishops, abbots, priors, earls, barons, and to all free men of this our realm, these liberties following, to be kept in our kingdom of england forever. [i. a confirmation of liberties] first, we have granted to god, and by this our present charter confirmed, for us and our heirs forever, that the english church shall be free and enjoy her whole rights and her liberties inviolable. {and that we will this so to be observed appears from the fact that we of our own free will, before the outbreak of the dissensions between us and our barons, granted, confirmed, and procured to be confirmed by pope innocent iii the freedom of elections, which is considered most important and necessary to the english church, which charter we will both keep ourself and will it to be kept with good faith by our heirs forever.} we have also granted to all the free men of our realm, for us and our heirs forever, all the liberties underwritten, to have and to hold to them and their heirs of us and our heirs. [ii. the relief of the king's tenant of full age] if any of our earls, barons, or others who hold of us in chief by knight's service dies, and at the time of his death his heir is of full age and owes to us a relief, he shall have his inheritance on payment of [no more than] the old relief; to wit, the heir or heirs of an earl, for an entire earldom, 100 pounds [2,000s.]; the heir or heirs of a baron of an entire barony, {100 pounds} 100 marks [67 pounds or 1340s.]; the heir or heirs of an entire knight's fee, 100s. at the most [about 1/3 of a knight's annual income]; and he who owes less shall give less, according to the old custom of fees. [iii. the wardship of an heir within age. the heir a knight] but if the heir of such be under age, his lord shall not have the ward of him, nor of his land, before that he has taken of him homage. if, however, any such heir is under age and in ward, he shall have his inheritance without relief or fine when he comes of age, that is, twenty-one years of age. so that if such an heir not of age is made a knight, yet nevertheless his land shall remain in the keeping of his lord unto the aforesaid term. [iv. no waste shall be made by a guardian in ward's lands] the guardian of the land of any heir thus under age shall take therefrom only reasonable issues, customs, and services, without destruction or waste of men or goods. and if we commit the custody of any such land to the sheriff or any other person answerable to us for the issues of the same land, and he commits destruction or waste, we will take an amends from him and recompense therefore. and the land shall be committed to two lawful and discreet men of that fee, who shall be answerable for the issues of the same land to us or to whomsoever we shall have assigned them. and if we give or sell the custody of any such land to any man, and he commits destruction or waste, he shall lose the custody, which shall be committed to two lawful and discreet men of that fee, who shall, in like manner, be answerable to us as has been aforesaid. [v. guardians shall maintain the inheritance of their wards and of bishopricks, etc.] the guardian, so long as he shall have the custody of the land, shall keep up and maintain the houses, parks, fishponds, pools, mills, and other things pertaining thereto, out of the issues of the same, and shall restore to the heir when he comes of age, all his land stocked with {ploughs and tillage, according as the season may require and the issues of the land can reasonably bear} ploughs and all other things, at the least as he received it. all these things shall be observed in the custodies of vacant archbishopricks, bishopricks, abbeys, priories, churches, and dignities, which appertain to us; except this, that such custody shall not be sold. [vi. heirs shall be married without disparagement] heirs shall be married without loss of station. {and the marriage shall be made known to the heir's nearest of kin before it is agreed.} [vii. a widow shall have her marriage, inheritance, and querentine (period of forty days during which the widow has a privilege of remaining in the mansion house of which her husband died seized). the king's widow, etc.] a widow, after the death of her husband, shall immediately and without difficulty have her marriage portion [property given to her by her father] and inheritance. she shall not give anything for her marriage portion, dower, or inheritance which she and her husband held on the day of his death, and she may remain in her husband's house for forty days after his death, within which time her dower shall be assigned to her. if that house is a castle and she leaves the castle, then a competent house shall forthwith be provided for her, in which she may honestly dwell until her dower is assigned to her as aforesaid; and in the meantime her reasonable estovers of the common [necessaries or supplies such as wood], etc. no widow shall be compelled [by penalty of fine] to marry so long as she has a mind to live without a husband, provided, however, that she gives security that she will not marry without our assent, if she holds of us, or that of the lord of whom she holds, if she holds of another. [viii. how sureties shall be charged to the king] neither we nor our bailiffs shall seize any land or rent for any debt as long as the debtor's goods and chattels suffice to pay the debt and the debtor himself is ready to satisfy therefore. nor shall the debtor's sureties be distrained as long as the debtor is able to pay the debt. if the debtor fails to pay, not having the means to pay, or will not pay although able to pay, then the sureties shall answer the debt. and, if they desire, they shall hold the debtor's lands and rents until they have received satisfaction of that which they had paid for him, unless the debtor can show that he has discharged his obligation to them. {if anyone who has borrowed from the jews any sum of money, great or small, dies before the debt has been paid, the heir shall pay no interest on the debt as long as he remains under age, of whomsoever he may hold. if the debt falls into our hands, we will take only the principal sum named in the bond.} {and if any man dies indebted to the jews, his wife shall have her dower and pay nothing of that debt; if the deceased leaves children under age, they shall have necessaries provided for them in keeping with the estate of the deceased, and the debt shall be paid out of the residue, saving the service due to the deceased's feudal lords. so shall it be done with regard to debts owed persons other than jews.} [ix. the liberties of london and other cities and towns confirmed] the city of london shall have all her old liberties and free customs, both by land and water. moreover, we will and grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs. {no scutage or aid shall be imposed in our realm unless by common counsel thereof, except to ransom our person, make our eldest son a knight, and once to marry our eldest daughter, and for these only a reasonable aid shall be levied. so shall it be with regard to aids from the city of london.} {to obtain the common counsel of the realm concerning the assessment of aids (other than in the three aforesaid cases) or of scutage, we will have the archbishops, bishops, abbots, earls, and great barons individually summoned by our letters; we will also have our sheriffs and bailiffs summon generally all those who hold lands directly of us, to meet on a fixed day, but with at least forty days' notice, and at a fixed place. in all such letters of summons, we will explain the reason therefor. after summons has thus been made, the business shall proceed on the day appointed, according to the advice of those who are present, even though not all the persons summoned have come.} {we will not in the future grant permission to any man to levy an aid upon his free men, except to ransom his person, make his eldest son a knight, and once to marry his eldest daughter, and on each of these occasions only a reasonable aid shall be levied.} [x. none shall distrain for more service than is due.] no man shall be compelled to perform more service for a knight's fee nor any freehold than is due therefrom. [xi. common pleas shall not follow the king's court] people who have common pleas shall not follow our court traveling about the realm, but shall be heard in some certain place. [xii. where and before whom assizes shall be taken. adjournment for difficulty] {land assizes of novel disseisin, mort d'ancestor and darrein presentment shall be heard only in the county where the property is situated, and in this manner: we or, if we are not in the realm, our chief justiciary, shall send two justiciaries through each county four times a year [to clear and prevent backlog], and they, together with four knights elected out of each county by the people thereof, shall hold the said assizes in the county court, on the day and in the place where that court meets.} assizes of novel disseisin, mort d'ancestor shall be heard only in the county where the property is situated, and in this manner: we, or if we are not in the realm, our chief justiciary, shall send justiciaries through each county once a year, and they together with knights of that county shall hold the said assizes in the county. {if the said assizes cannot be held on the day appointed, so many of the knights and freeholders as were present on that day shall remain as will be sufficient for the administration of justice, according to the amount of business to be done.} and those things that at the coming of our foresaid justiciaries, being sent to take those assizes in the counties, cannot be determined, shall be ended by them in some other place in their circuit; and those things which for difficulty of some articles cannot be determined by them, shall be referred to our justices of the bench and there shall be ended. [xiii. assizes of darrein presentment] assizes of darrein presentment shall always be taken before our justices of the bench and there shall be determined. [xiv. how men of all sorts shall be amerced and by whom] a freeman shall be amerced [made to pay a fine to the king] for a small offense only according to the degree thereof, and for a serious offense according to its magnitude, saving his position and livelihood; and in like manner a merchant, saving his trade and merchandise, and a villein saving his tillage, if they should fall under our mercy. none of these amercements shall be imposed except by the oath of honest men of the neighborhood. earls and barons shall be amerced only by their peers, and only in accordance with the seriousness of the offense. {no amercement shall be imposed upon a cleric's lay tenement, except in the manner of the other persons aforesaid, and without regard to the value of his ecclesiastical benefice.} no man of the church shall be amerced except in accordance with the seriousness of the offense and after his lay tenement, but not after the quantity of his spiritual benefice. [xv. making of bridges and banks] no town or freeman shall be compelled to build bridges over rivers or banks except those bound by old custom and law to do so. [xvi. defending of banks] no banks [land near a river] shall be defended [used by the king alone, e.g. for hunting], from henceforth, but such as were in defense in the time of king henry [ii] our grandfather, by the same places and in the same bounds as in his time. [xvii. holding pleas of the crown] no sheriff, constable, coroners, or other of our bailiffs shall hold pleas of our crown [but only justiciars, to prevent disparity of punishments and corruption]. {all counties, hundreds, wapentakes, and tithings (except our demesne manors) shall remain at the old rents, without any increase.} [xviii. the king's debtor dying, the king shall be first paid] if anyone holding a lay fee of us dies, and our sheriff or our bailiff show our letters patent [public letter from a sovereign or one in authority] of summons for a debt due to us from the deceased, it shall be lawful for such sheriff or bailiff to attach and list the goods and chattels of the deceased found in the lay fee to the value of that debt, by the sight and testimony of lawful men [to prevent taking too much], so that nothing thereof shall be removed therefrom until our whole debt is paid; then the residue shall be given up to the executors to carry out the will of the deceased. if there is no debt due from him to us, all his chattels shall remain the property of the deceased, saving to his wife and children their reasonable shares. {if any freeman dies intestate, his chattels shall be distributed by his nearest kinfolk and friends, under supervision of the church, saving to each creditor the debts owed him by the deceased.} [xix. purveyance for a castle] no constable or other of our bailiffs shall take grain or other chattels of any man without immediate payment, unless the seller voluntarily consents to postponement of payment. this applies if the man is not of the town where the castle is. but if the man is of the same town as where the castle is, the price shall be paid to him within 40 days. [xx. doing of castle-guard] no constable shall compel any knight to give money for keeping of his castle in lieu of castle-guard when the knight is willing to perform it in person or, if reasonable cause prevents him from performing it himself, by some other fit man. further, if we lead or send him into military service, he shall be excused from castle-guard for the time he remains in service by our command. [xxi. taking of horses, carts, and wood] no sheriff or bailiff of ours, or any other man, shall take horses or carts of any freeman for carriage without the owner's consent. he shall pay the old price, that is, for carriage with two horses, 10d. a day; for three horses, 14d. a day. no demesne cart of any spiritual person or knight or any lord shall be taken by our bailiffs. neither we nor our bailiffs will take another man's wood for our castles or for other of our necessaries without the owner's consent. [xxii. how long felons' lands shall be held by the king] we will hold the lands of persons convicted of felony for only a year and a day [to remove the chattels and movables], after which they shall be restored to the lords of the fees. [xxiii. in what place weirs shall be removed] all fishweirs [obstructing navigation] shall be entirely removed by the thames and medway rivers, and throughout england, except upon the seacoast. [xxiv. in what case a praecipe in capite is not grantable] the [royal] writ called "praecipe in capite" [for tenements held in chief of the crown] shall not in the future be granted to anyone respecting any freehold if thereby a freeman [who has a mesne lord] may not be tried in his lord's court. [xxv. there shall be but one measure throughout the realm] there shall be one measure of wine throughout our realm, one measure of ale, and one measure of grain, to wit, the london quarter, and one breadth of dyed cloth, russets, and haberjets, to wit, two {ells} yards within the selvages. as with measures so shall it also be with weights. [xxvi. inquisition of life and limb] henceforth nothing shall be given or taken for a writ of inquisition upon life or limb, but it shall be granted freely and not denied. [xxvii. tenure of the king in socage and of another by knight's service. petit serjeanty.] if anyone holds of us by fee farm, socage, or burgage, and also holds land of another by knight's service, we will not by reason of that fee farm, socage, or burgage have the wardship of his heir, or the land which belongs to another man's fee. nor will we have the custody of such fee farm, socage, or burgage unless such fee farm owe knight's service. we will not have the wardship of any man's heir, or the land which he holds of another by knight's service, by reason of any petty serjeanty which he holds of us by service of rendering us knives, arrows, or the like. [xxviii. wages of law shall not be without witness] in the future no [royal] bailiff shall upon his own unsupported accusation put any man to trial or oath without producing credible witnesses to the truth of the accusation. [xxix. none shall be condemned without trial. justice shall not be sold or delayed.] no freeman shall be taken, imprisoned, disseised of his freehold or liberties or free customs, or be outlawed, banished, or in any way ruined, nor will we prosecute or condemn him, except by the lawful judgment of his peers or by the law of the land. to no one will we sell [by bribery], to none will we deny or delay, right or justice. [xxx. merchant strangers coming into this realm shall be well used] all merchants shall have safe conduct to go and come out of and into england, and to stay in and travel through england by land and water, to buy and sell, without evil tolls, in accordance with old and just customs, except, in time of war, such merchants as are of a country at war with us. if any such be found in our realm at the outbreak of war, they shall be detained, without harm to their bodies or goods, until it be known to us or our chief justiciary how our merchants are being treated in the country at war with us. and if our merchants are safe there, then theirs shall be safe with us. {henceforth anyone, saving his allegiance due to us, may leave our realm and return safely and securely by land and water, except for a short period in time of war, for the common benefit of the realm.} [xxxi. tenure of a barony coming into the king's hands by escheat] if anyone dies holding of any escheat, such as the honor of wallingford, nottingham, boulogne, {lancaster,} or other escheats which are in our hands and are baronies, his heir shall not give any relief or do any service to us other than he would owe to the baron, if such barony had been in the baron's hands. and we will hold the escheat in the same manner in which the baron held it. nor shall we have, by occasion of any barony or escheat, any escheat or keeping of any of our men, unless he who held the barony or escheat elsewhere held of us in chief. persons dwelling outside the forest [in the county] need not in the future come before our justiciaries of the forest in answer to a general summons unless they are impleaded or are sureties for any person or persons attached for breach of forest laws. [xxxii. lands shall not be aliened to the prejudice of the lord's service] no freeman from henceforth shall give or sell any more of his land, but so that of the residue of the lands the lord of the fee may have the service due to him which belongs to the fee. {we will appoint as justiciaries, constables, sheriffs, or bailiffs only such men as know the law of the land and will keep it well.} [xxxiii. patrons of abbeys shall have the custody of them when vacant] all barons who had founded abbeys of which they have charters of english kings or old tenure, shall have the custody of the same when vacant, as is their due. all forests which have been created in our time shall forthwith be disafforested. {so shall it be done with regard to river banks which have been enclosed by fences in our time.} {all evil customs concerning forests and warrens [livestock grounds in forests], foresters and warreners, sheriffs and their officers, or riverbanks and their conservators shall be immediately investigated in each county by twelve sworn knights of such county, who are chosen by honest men of that county, and shall within forty days after this inquest be completely and irrevocably abolished, provided always that the matter has first been brought to our knowledge, or that of our justiciars, if we are not in england.} {we will immediately return all hostages and charters delivered to us by englishmen as security for the peace or for the performance of loyal service.} {we will entirely remove from their offices the kinsmen of gerald de athyes, so that henceforth they shall hold no office in england: engelard de cigogne, peter, guy, and andrew de chanceaux, guy de cigogne, geoffrey de martigny and his brothers, philip mark and his brothers, and geoffrey his nephew, and all their followers.} {as soon as peace is restored, we will banish from our realm all foreign knights, crossbowmen, sergeants, and mercenaries, who have come with horses and arms, to the hurt of the realm.} {if anyone has been disseised or deprived by us, without the legal judgment of his peers, of lands, castles, liberties, or rights, we will immediately restore the same, and if any disagreement arises on this, the matter shall be decided by judgment of the twentyfive barons mentioned below in the clause for securing the peace. with regard to all those things, however, of which any man was disseised or deprived, without the legal judgment of his peers, by king henry [ii] our father or our brother king richard, and which remain in our hands or are held by others under our warranty, we shall have respite during the term commonly allowed to the crusaders, excepting those cases in which a plea was begun or inquest made on our order before we took the cross; when, however, we return from our pilgrimage, or if perhaps we do not undertake it, we will at once do full justice in these matters.} {likewise, we shall have the same respite in rendering justice with respect to the disafforestation or retention of those forests which henry [ii] our father or richard our brother afforested, and concerning custodies of lands which are of the fee of another, which we hitherto have held by reason of the fee which some person has held of us by knight's service, and to abbeys founded on fees other than our own, in which the lord of that fee asserts his right. when we return from our pilgrimage, or if we do not undertake it, we will forthwith do full justice to the complainants in these matters.} [xxxiv. in what only case a woman shall have an appeal of death] no one shall be arrested or imprisoned upon a woman's appeal for the death of any person other than her husband [since no woman was expected to personally engage in trial by combat]. [xxxv. at what time shall be kept a county court, sheriff's turn and a leet court (court of criminal jurisdiction excepting felonies)] no county court from henceforth shall be held, but from month to month; and where greater time has been used, there shall be greater. nor shall any sheriff, or his bailiff, keep his turn in the hundred but twice in the year; and no where but in due place and accustomed time, that is, once after easter, and again after the feast of saint michael. and the view of frankpledge [the right of assembling the whole male population over 12 years except clergy, earls, barons, knights, and the infirm, at the leet or soke court for the capital frankpledges to give account of the peace kept by individuals in their respective tithings] shall be likewise at the feast of saint michael without occasion, so that every man may have his liberties which he had, or used to have, in the time of king henry [ii] our grandfather, or which he has since purchased. the view of frankpledge shall be so done, that our peace may be kept; and that the tything be wholly kept as it has been accustomed; and that the sheriff seek no occasions, and that he be content with so much as the sheriff was wont to have for his view-making in the time of king henry our grandfather. [xxxvi. no land shall be given in mortmain] it shall not be lawful from henceforth to any to give his land to any religious house, and to take the same land again to hold of the same house [thereby extinguishing the feudal rights of the temporal lord]. nor shall it be lawful to any house of religion to take the lands of any, and to lease the same to him of whom he received it. if any from henceforth give his lands to any religious house, and thereupon be convicted, the gift shall be utterly void, and the land shall accrue to the lord of the fee. {all fines unjustly and unlawfully given to us, and all amercements levied unjustly and against the law of the land, shall be entirely remitted or the matter decided by judgment of the twenty-five barons mentioned below in the clause for securing the peace, or the majority of them, together with the aforesaid stephen, archbishop of canterbury, if he himself can be present, and any others whom he may wish to bring with him for the purpose; if he cannot be present, the business shall nevertheless proceed without him. if any one or more of the said twenty-five barons has an interest in a suit of this kind, he or they shall step down for this particular judgment, and be replaced by another or others, elected and sworn by the rest of the said barons, for this occasion only.} {if we have disseised or deprived the welsh of lands, liberties, or other things, without legal judgment of their peers, in england or wales, they shall immediately be restored to them, and if a disagreement arises thereon, the question shall be determined in the marches by judgment of their peers according to the law of england as to english tenements, the law of wales as to welsh tenements, the law of the marches as to tenements in the marches. the same shall the welsh do to us and ours.} {but with regard to all those things of which any welshman was disseised or deprived, without legal judgment of his peers, by king henry [ii] our father or our brother king richard, and which we hold in our hands or others hold under our warranty, we shall have respite during the term commonly allowed to the crusaders, except as to those matters whereon a suit had arisen or an inquisition had been taken by our command prior to our taking the cross. immediately after our return from our pilgrimage, or if by chance we do not undertake it, we will do full justice according to the laws of the welsh and the aforesaid regions.} {we will immediately return the son of llywelyn, all the welsh hostages, and the charters which were delivered to us as security for the peace.} {with regard to the return of the sisters and hostages of alexander, king of the scots, and of his liberties and rights, we will do the same as we would with regard to our other barons of england, unless it appears by the charters which we hold of william his father, late king of the scots, that it ought to be otherwise; this shall be determined by judgment of his peers in our court.} [xxxvii. subsidy in respect of this charter, and the charter of the forest, granted to the king.] escuage [shield military service] from henceforth shall be taken as it was wont to be in the time of king henry [ii] our grandfather; reserving to all archbishops, bishops, abbots, priors, templers, hospitallers, earls, barons, and all persons as well spiritual as temporal; all their free liberties and free customs, which they have had in time passed. and all these customs and liberties aforesaid, which we have granted to be held within this our realm, as much as pertains to us and our heirs, we shall observe. {all the customs and liberties aforesaid, which we have granted to be enjoyed, as far as it pertains to us towards our people throughout our realm, let all our subjects, whether clerics or laymen, observe, as far as it pertains toward their dependents.} and all men of this our realm, as well spiritual as temporal (as much as in them is) shall observe the same against all persons in like wise. and for this our gift and grant of these liberties, and of other constrained in our charter of liberties of our forest, the archbishops, bishops, abbots, priors, earls, barons, knights, freeholders, and our other subjects, have given unto us the fifteenth part of all their movables. and we have granted unto them on the other part, that neither we, nor our heirs, shall procure or do any thing whereby the liberties in this charter contained shall be infringed or broken. and if any thing be procured by any person contrary to the premises, it shall be had of no force nor effect. [enforcement] {whereas we, for the honor of god and the reform of our realm, and in order the better to allay the discord arisen between us and our barons, have granted all these things aforesaid. we, willing that they be forever enjoyed wholly and in lasting strength, do give and grant to our subjects the following security, to wit, that the barons shall elect any twenty-five barons of the realm they wish, who shall, with their utmost power, keep, hold, and cause to be kept the peace and liberties which we have granted unto them and by this our present charter have confirmed, so that if we, our justiciary, bailiffs, or any of our ministers offends in any respect against any man, or transgresses any of these articles of peace or security, and the offense is brought before four of the said twenty-five barons, those four barons shall come before us, or our chief justiciary if we are out of the realm, declaring the offense, and shall demand speedy amends for the same. if we or, in case of our being out of the realm, our chief justiciary fails to afford redress within forty days from the time the case was brought before us or, in the event of our having been out of the realm, our chief justiciary, the aforesaid four barons shall refer the matter to the rest of the twenty-five barons, who, together with the commonalty of the whole country, shall distrain and distress us to the utmost of their power, to wit, by capture of our castles, lands, and possessions and by all other possible means, until compensation is made according to their decision, saving our person and that of our queen and children; as soon as redress has been had, they shall return to their former allegiance. anyone in the realm may take oath that, for the accomplishment of all the aforesaid matters, he will obey the orders of the said twenty-five barons and distress us to the utmost of his power; and we give public and free leave to everyone wishing to take oath to do so, and to none will we deny the same. moreover, all such of our subjects who do not of their own free will and accord agree to swear to the said twenty-five barons, to distrain and distress us together with them, we will compel to do so by our command in the aforesaid manner. if any one of the twenty-five barons dies or leaves the country or is in any way hindered from executing the said office, the rest of the said twenty-five barons shall choose another in his stead, at their discretion, who shall be sworn in like manner as the others. in all cases which are referred to the said twenty-five barons to execute, and in which a difference arises among them, supposing them all to be present, or in which not all who have been summoned are willing or able to appear, the verdict of the majority shall be considered as firm and binding as if the whole number had been of one mind. the aforesaid twenty-five shall swear to keep faithfully all the aforesaid articles and, to the best of their power, to cause them to be kept by others. we will not procure, either by ourself or any other, anything from any man whereby any of these concessions or liberties may be revoked or abated. if any such procurement is made, let it be null and void; it shall never be made use of either by us or by any other.} [amnesty] {we have also fully forgiven and pardoned all ill-will, wrath, and malice which has arisen between us and our subjects, both clergy and laymen, during the disputes, to and with all men. moreover, we have fully forgiven and, as far as it pertains to us, wholly pardoned to and with all, clergy and laymen, all offenses made in consequence of the said disputes from easter in the sixteenth year of our reign until the restoration of peace. over and above this, we have caused letters patent to be made for stephen, archbishop of canterbury, henry, archbishop of dublin, the above-mentioned bishops, and master pandulph, for the aforesaid security and concessions.} {wherefore we will that, and firmly command that, the english church shall be free and all men in our realm shall have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely, quietly, fully, and wholly, to them and their heirs, of us and our heirs, in all things and places forever, as is aforesaid. it is moreover sworn, as will on our part as on the part of the barons, that all these matters aforesaid shall be kept in good faith and without deceit. witness the above-named and many others. given by our hand in the meadow which is called runnymede, between windsor and staines, on the fifteenth day of june in the seventeenth year of our reign.} these being witnesses: lord s. archbishop of canterbury, e. bishop of london, f. bishop of bathe, g. of wincester, h. of lincoln, r. of salisbury, w. of rochester, x. of worcester, f. of ely, h. of hereford, r. of chichester, w. of exeter, bishops; the abbot of st. edmonds, the abbot of st. albans, the abbot of bello, the abbot of st. augustines in canterbury, the abbot of evesham, the abbot of westminster, the abbot of bourgh st. peter, the abbot of reding, the abbot of abindon, the abbot of malmbury, the abbot of winchcomb, the abbot of hyde, the abbot of certesey, the abbot of sherburn, the abbot of cerne, the abbot of abborebir, the abbot of middleton, the abbot of seleby, the abbot of cirencester, h. de burgh justice, h. earl of chester and lincoln, w. earl of salisbury, w. earl of warren, g. de clare earl of gloucester and hereford, w. de ferrars earl of derby, w. de mandeville earl of essex, h. de bygod earl of norfolk, w. earl of albemarle, h. earl of hereford, f. constable of chester, g. de tos, h. fitzwalter, r. de byponte, w. de bruer, r. de montefichet, p. fitzherbert, w. de aubenie, f. gresly, f. de breus, f. de monemue, f. fitzallen, h. de mortimer, w. de beuchamp, w. de st. john, p. de mauli, brian de lisle, thomas de multon, r. de argenteyn, g. de nevil, w. de mauduit, f. de balun, and others. given at westminster the 11th day of february the 9th year of our reign. we, ratifying and approving these gifts and grants aforesaid, confirm and make strong all the same for us and our heirs perpetually, and by the tenour of these presents, do renew the same; willing and granting for us and our heirs, that this charter, and all singular his articles, forever shall be steadfastly, firmly, and inviolably observed; and if any article in the same charter contained, yet hitherto peradventure has not been kept, we will, and by royal authority, command, from henceforth firmly they be observed. statutes which were enacted after the magna carta follow: nuisance is recognized by this statute: "every freeman, without danger, shall make in his own wood, or in his land, or in his water, which he has within our forest, mills, springs, pools, clay pits, dikes, or arable ground, so that it does not annoy any of his neighbors." anyone taking a widow's dower after her husband's death must not only return the dower, but pay damages in the amount of the value of the dower from the time of death of the husband until her recovery of seisin. widows may bequeath the crop of their ground as well of their dowers as of their other lands and tenements. freeholders of tenements on manors shall have sufficient ingress and egress from their tenements to the common pasture and as much pasture as suffices for their tenements. "grain shall not be taken under the pretense of borrowing or the promise of after-payment without the permission of the owner." "a parent or other who forcefully leads away and withholds, or marries off, an heir who is a minor (under 14), shall yield the value of the marriage and be imprisoned until he has satisfied the king for the trespass. if an heir 14 years or older marries without his lord's permission to defraud him of the marriage and the lord offers him reasonable and convenient marriage, without disparagement, then the lord shall hold his land beyond the term of his age, that, of twenty one years, so long that he may receive double the value of the marriage as estimated by lawful men, or after as it has been offered before without fraud or collusion, and after as it may be proved in the king's court. any lord who marries off a ward of his who is a minor and cannot consent to marriage, to a villain or other, such as a burgess, whereby the ward is disparaged, shall lose the wardship and all its profits if the ward's friends complain of the lord. the wardship and profit shall be converted to the use of the heir, for the shame done to him, after the disposition and provision of his friends." (the "marriage" could be annulled by the church.) "if an heir of whatever age will not marry at the request of his lord, he shall not be compelled thereunto; but when he comes of age, he shall pay to his lord the value of the marriage before receiving his land, whether or not he himself marries." "interest shall not run against any minor, from the time of death of his ancestor until his lawful age; so nevertheless, that the payment of the principal debt, with the interest that was before the death of his ancestor shall not remain." the value of debts to be repaid to the king or to any man shall be reasonably determined by the debtor's neighbors and not by strangers. a debtors' plough cattle or sheep cannot be taken to satisfy a debt. the wards and escheats of the king shall be surveyed yearly by three people assigned by the king. the sheriffs, by their counsel, shall approve and let to farm such wards and escheats as they think most profitable for the king. the sheriffs shall be answerable for the issues thereof in the exchequer at designated times. the collectors of the customs on wool exports shall pay this money at the two designated times and shall make yearly accounts of all parcels in ports and all ships. by statute leap year was standardized throughout the nation, "the day increasing in the leap year shall be accounted in that year", "but it shall be taken and reckoned in the same month wherein it grew and that day and the preceding day shall be counted as one day." "an english penny, called a sterling, round and without any clipping, shall weigh 32 wheat grains dry in the middle of the ear." measurements of distance were standardized to twelve inches to a foot, three feet to a yard, and so forth up to an acre of land. goods which could only be sold by the standard weights and measures (such as ounces, pounds, gallons, bushels) included sacks of wool, leather, skins, ropes, glass, iron, lead, canvas, linen cloth, tallow, spices, confections cheese, herrings, sugar, pepper, cinnamon, nutmeg, wheat, barley, oats, bread, and ale. the prices required for bread and ale were based on the market price for the wheat, barley, and oats from which they were made. the punishment for repeated violations of required measures, weights, or prices of bread and ale by a baker or brewer; selling of spoiled or unwholesome wine, meat, fish by brewers, butchers, or cooks; or a steward or bailiff receiving a bribe was reduced to placement in a pillory with a shaven head so that these men would still be fit for military service and not overcrowd the gaols. forest penalties were changed so that "no man shall lose either life or member [limb] for killing of our deer. but if any man be taken and convicted for taking our venison, he shall make a grievous fine, if he has anything. and if he has nothing to lose, he shall be imprisoned for a year and a day. and after that, if he can find sufficient sureties, he shall be delivered, and, if not, he shall abjure the realm of england." the forest charter provided that: every freeman may allow his pigs to eat in his own wood in the king's forest. he may also drive his pigs through the king's forest and tarry one night within the forest without losing any of his pigs. but people having greyhounds must keep them out of the forest so they don't maim the deer. the forest charter also allowed magnates traveling through the king's forest on the king's command to come to him, to kill one or two deer as long as it was in view of the forester if he was present, or while having a horn blown, so it did not seem to be theft. after a period of civil war, the following statutes were enacted: "all persons, as well of high as of low estate, shall receive justice in the king's court; and none shall take any such revenge or distress by his own authority, without award of our court, although he is damaged or injured, whereby he would have amends of his neighbor either higher or lower." the penalty is a fine according to the trespass. a fraudulent conveyance to a minor or lease for a term of years made to defraud a lord of a wardship shall be void. a lord who maliciously and wrongfully alleges this to a court shall pay damages and costs. if a lord will not render unto an heir his land when he comes of age or takes possession away from an heir of age or removes anything from the land, he shall pay damages. (the king retained the right to take possession of an heir's land for a year or, in lieu of this, to take one year's profit from the land in addition to the relief.) kinsmen of a minor heir who have custody of his land held in socage shall make no waste, sale, nor destruction of the inheritance and shall answer to the heir when he comes of age for the issues of the land, except for the reasonable costs of these guardians. no lord may distrain any of his tenants. no one may drive animals taken by distraint out of the county where they have been taken. "farmers during their terms, shall not make waste, sale, nor exile of house, woods, and men, nor of any thing else belonging to the tenements which they have to farm". church law required that planned marriages be publicly announced by the priest so that any impediment could be made known. if a marriage was clandestine or both parties knew of an impediment, or it was within the prohibited degrees of consanguinity, the children would be illegitimate. according to church rules, a man could bequeath his personal property subject to certain family rights. these were that if only the wife survived, she received half the property. similarly, if children survived, but no wife, they received half the property. when the wife and children survived, each party received one third. the church hoped that the remaining fraction would go to the church as a reward for praying for the deceased's soul. it taught that dying without a will was sinful. adults were to confess their sins at least yearly to their parish priest, which confession would be confidential. henry de bracton, a royal justice and the last great ecclesiastical attorney, wrote an unfinished treatise: a tract on the laws and customs of england, systematizing and organizing the law of the court rolls with definitions and general concepts and describing court practice and procedure. it was influenced by his knowledge of roman legal concepts, such as res judicata, and by his own opinions, such as that the law should go from precedent to precedent. he also argued that the will and intent to injure was the essence of murder, so that neither an infant nor a madman should be held liable for such and that degrees of punishment should vary with the level of moral guilt in a killing. he thought the deodand to be unreasonable. bracton defines the requirements of a valid and effective gift as: "it must be complete and absolute, free and uncoerced, extorted neither by fear nor through force. let money or service play no part, lest it fall into the category of purchase and sale, for if money is involved there will then be a sale, and if service, the remuneration for it. if a gift is to be valid the donor must be of full age, for if a minor makes a gift it will be ineffective since (if he so wishes) it shall be returned to him in its entirety when he reaches full age. also let the donor hold in his own name and not another's, otherwise his gift may be revoked. and let him, at the least, be of sound mind and good memory, though an invalid, ill and on his death bed, for a gift make under such conditions will be good if all the other [requirements] of a valid gift are met. for no one, provided he is of good memory, ought to be kept from the administration or disposition of his own property when affected by infirmity, since it is only then that he must make provision for his family, his household and relations, given stipends and settle his bequests; otherwise such persons might suffer damage without fault. but since charters are sometimes fraudulently drawn and gifts falsely taken to be made when they are not, recourse must therefore be had to the country and the neighborhood so that the truth may be declared." in bracton's view, a villein could buy his own freedom and the child of a mixed marriage was free unless he was born in the tenement of his villein parent. judicial procedure the royal court split up into several courts with different specialties and became more like departments of state than offices of the king's household. the justices were career civil servants knowledgeable in the civil and canon law. the court of the king's bench (a marble slab in westminster upon which the throne was placed) traveled with the king and heard criminal cases and pleas of the crown. any use of force, however trivial, was interpreted as breach of the royal peace and could be brought before the king's bench. its records were the coram rege rolls. the title of the chief justiciar of england changed to the chief justice of england. the court of common pleas heard civil cases brought by one subject against another. pursuant to the magna carta, it sat only at one place, the great hall in westminster. it had concurrent jurisdiction with the king's bench over trespass cases. its records were the de banco rolls. the court of the exchequer with its subsidiary department of the treasury was in almost permanent session at westminster, collecting the crown's revenue and enforcing the crown's rights. appeals from these courts could be made to the king and/or his small council, which was the curia regis and could hear any plea of the land. in 1234, the justiciar as the principal royal executive officers and chief presiding officer over the curia regis ended. in 1268, a chief justiciar was appointed the hold pleas before the king. henceforth, a justiciar was a royal officer who dealt only with judicial work. about the same time the presiding justice of the court of common pleas also came to be styled justiciar or chief justice. justices were no longer statesmen or politicians, but simply men learned in the law. membership in or attendance at the great council or parliament no longer rested upon feudal tenure, but upon a writ of summons which was, to a degree, dependent on the royal will. crown pleas included issues of the king's property, fines due to him, murder (a body found with no witnesses to a killing), homicide (a killing for which there were witnesses), rape, wounding, mayhem, consorting, larceny, robbery, burglary, arson, poaching, unjust imprisonment, selling cloth by nonstandard widths, selling wine by nonstandard weights. crown causes were pled by the king's serjeants or servants at law, who were not clerics. apprentices at law learned pleading from them. between the proprietary action and the possessory assizes there is growing use in the king's courts of writs of entry, by which a tenant may be ordered to give up land, e.g. by a recent flaw in a tenant's title, for a term which has expired, by a widow for her late husband's land, or by an heir who has become of full age from his guardian. for instance: " ...command tertius that ... he render to claimant, who is of full age, as it is said, ten acres ...which he claims to be his right and inheritance and into which the said tertius has no entry save by secundus, to whom primus demised [gaged] them, who had only the wardship thereof while the aforesaid claimant was under age, as he says...". but most litigation about land is still through the writ of right for proprietary issues and the assizes of novel disseisin and mort d'ancestor for possessory issues. royal itinerant justices traveled to the counties every seven years. there, they gave interrogatories to local assizes of twelve men to determine what had happened there since the last eyre. all boroughs had to send twelve burgesses who were to indict any burgesses suspected of breaking the royal law. every crime, every invasion of royal rights, and every neglect of police duties was to be presented and tried. suspects were held in gaol until their cases could be heard and gaol breaks were common. punishment after trial was prison for serious crimes, expulsion from the realm for less serious crimes, and pledges for good behavior for lesser crimes. the visitation of these justices was anticipated with trepidation. in 1237, the residents of cornwall hid in the woods rather than face the itinerant justices. royal coroners held inquests on all sudden deaths to determine whether they were accidental or not. if not, royal justices held trial. they also had duties in treasure trove and shipwreck cases. justices of assize, justices of the peace, and itinerant justices operated at the county level. the traditional county courts had lost much jurisdiction to the royal courts and were now limited to personal actions in causes involving usually no more than 40s. there were pleas of trespass and debt, unjust seizure and detention of beasts, rent collection, claims of fugitive villeins and their goods, nuisances, and encroachments. the sheriff still constitutes and conducts the court. the county court met every three or four weeks, usually in the sheriff's castle located in the chief borough of the county, but some met in the open air. twice a year the sheriff visited each hundred in the county to hold a turn [court for small offenses, such as encroachment of public land, brewing and baking contrary to government regulations, and use of dishonest weights and measures.]. everyone who held freehold land in the hundred except the greater magnates had to attend or be fined for absence. the sheriff annually viewed frankpledge, in which every layman without land that could be forfeited for felony, including villeins, were checked for being in a tithing, a group of neighbors responsible for each other's good conduct. this applied to every boy who had reached the age of twelve. he had to swear on the bible "i will be a lawful man and bear loyalty to our lord the king and his heirs, and i will be justiciable to my chief tithing man, so help me god and the saints." each tithing man paid a penny to the sheriff. the hundred court decided cases of theft, viewing of boundaries of land, claims for tenurial services, claims for homage, relief, and for wardship; enfeoffments made, battery and brawls not amounting to felony, wounding and maiming of beasts, collection of debts, trespass, detinue [detention of personal property which originally was rightfully acquired] and covenant, which now requires a sealed writing; defamation, and inquiries and presentments arising from the assizes of bread and ale and measures. a paid bailiff had responsibility for the hundred court, which met every three weeks. still in existence is the old self-help law of hamsocne, the thief hand-habbende, the thief back-berend, the old summary procedure where the thief is caught in the act, aethelstan's laws, edward the confessor's laws, and kent's childwyte [fine for begetting a bastard on a lord's female bond slave]. under the name of "actio furti" [appeal of larceny] is the old process by which a thief can be pursued and goods vindicated. as before and for centuries later, deodands were forfeited to the king to appease god's wrath. these chattel which caused the death of a person were usually carts, cart teams, horses, boats, or millwheels. then they were forfeited to the community, which paid the king their worth. sometimes the justices named the charitable purpose for which the deodand was to be spent, such as the price of a boat to go to the repair of a bridge. five cases with short summaries are: case: "john croc was drowned from his horse and cart in the water of bickney. judgment: misadventure. the price of the horse and cart is 4s.6d. deodand." case: "willam ruffus was crushed to death by a certain trunk. the price of the trunk is 4d., for which the sheriff is to answer. 4d. deodand." case: "william le hauck killed edric le poter and fled, so he is to be exacted and outlawed. he was in the tithing of reynold horloc in clandon of the abbot of chertsey (west clandon), so it is in mercy. his chattels were 4 s., for which the bailiff of the abbot of chertsey is to answer." case: "richard de bregsells, accused of larceny, comes and denies the whole and puts himself on the country for good or ill. the twelve jurors and four vills say that he is not guilty, so he is quit." case: william le wimpler and william vintner sold wine contrary to the statute, so they are in mercy. other cases dealt with issues of entry, e.g. whether land was conveyed or just rented; issues of whether a man was free, for which his lineage was examined; issues of to which lord a villein belonged; issues of nuisance such as making or destroying a bank, ditch, or hedge; diverting a watercourse or damming it to make a pool; obstructing a road, and issues of what grazing rights were conveyed in pasture land, waste, woods, or arable fields between harvest and sowing. grazing right disputes usually arose from the ambiguous language in the grant of land "with appurtenances". courts awarded specific relief as well as money damages. if a landlord broke his covenant to lease land for a term of years, the court restored possession to the lessee. if a lord did not perform the services due to his superior lord, the court ordered him to perform the services. the courts also ordered repair by a lessee. debts of country knights and freeholders were heard in the local courts; debts of merchants and burgesses were heard in the courts of the fairs and boroughs; debts due under wills and testaments were heard in the ecclesiastical courts. the ecclesiastical courts deemed marriage to legitimize bastard children whose parents married, so they inherited personal property and money of their parents. proof was by compurgation. church law required excommunication to be in writing with the reasons therefore, and a copy given to the excommunicant. a church judge was required to employ a notary or two men to write down all acts of the judge and to give a copy to the parties to protect against unjust judges. no cleric was allowed to pronounce or execute a sentence of death or to take part in judicial tests or ordeals. anyone knowingly accepting a stolen article was required to restore it to its owner. heretics were to be excommunicated. trial by combat is still available, although it is extremely rare for it to actually take place. the manor court imposed penalties on those who did not perform their services to the manor and the lord wrote down the customs of the manor for future use in other courts. by statute, no fines could be taken of any man for fair pleading in the circuit of justiciars, county, hundred, or manor courts. various statutes relaxed the requirements for attendance at court of those who were not involved in a case as long as there were enough to make the inquests fully. and "every freeman who owes suit to the county, tything, hundred, and wapentake, or to the court of his lord, may freely make his attorney attend for him." all above the rank of knight were exempted from attendance on the sheriff's turn, unless specifically summoned. prelates and barons were generally excepted from the county courts by the charters of their estates. charters of boroughs often excepted their representatives at the county court when there were no justices. some barons and knights paid the sheriff to be excused. the king often relieved the simple knights by special license. there was frequently a problem of not having enough knights to hold the assizes. henry iii excused the attendance at hundred courts of all but those who were bound to special service, or who were concerned in suits. trespass has become a writ of course in the common law. it still involves violence, but its element of breach of the peace extends to those breaches which do not amount to felony. it can include assault and battery, physical force to land, and physical force to chattels, e.g. assaulting and beating the plaintiff, breaking into his close, or carrying off his goods. one found guilty is fined and imprisoned. as in criminal matters, if a defendant does not appear at court, his body can be seized and imprisoned, and if he cannot be found, he may be outlawed. trespass to goods results in damages, rather than the return of the goods, for goods carried off from the plaintiff's possession and can be brought by bailees. in chancery, the court of the chancellor, if there is a case with no remedy specified in the law, that is similar to a situation for which there is a writ, then a new writ may be made for that case. (by this will later be expanded the action of trespass called "trespass on the case".) various cases from the manors of the abbey of bec in 1248-1249 are: 1. ragenilda of bec gives 2s. for having married without licence. pledge, william of pinner. the same ragenilda demands against roger loft and juliana his wife a certain messuage which belonged to robert le beck, and a jury of twelve lawful men is granted her in consideration of the said fine, and if she recovers seisin she will give in all 5s. and twelve jurors are elected, to wit, john of hulle, william maureward, robert hale walter but, walter sigar, william brihtwin, richard horseman, richard leofred, william john's son, hugh cross, richard pontfret and robert croyser, john bisuthe and gilbert bisuthe who are sworn. and they say that the said ragenilda has the greater right. therefore let her have seisin. 2. richard guest gives 12d. and if he recovers will give 2s. to have a jury of twelve lawful men as to whether he has the greater right in a certain headland at eastcot which ragenilda widow of william andrews holds, or the said ragenilda. pledges for the fine, john brook and richard of pinner. and the said ragenilda comes and says that she has no power to bring that land into judgment because she has no right in it save by reason of the wardship of the son and heir of her husband, who is under age. and richard is not able to deny this. therefore let him await [the heir's] full age. 3. walter hulle gives 13s.4d. for licence to dwell on the land of the prior of harmondsworth so long as he shall live and as a condition finds pledges, to wit, william slipper, john bisuthe, gilbert bisuthe, hugh tree, william john's son, john hulle, who undertake that the said walter shall do to the lord all the services and customs which he would do if he dwelt on the lord's land and that his heriot shall be secured to the lord in case he dies there [i.e. at harmondsworth]. 4. geoffrey sweyn demands the moiety of one virgate of land which john crisp and alina hele hold, and he gives 2s. to have a jury, and if he recovers will give 20s. and the said jurors come and say upon their oath that the said geoffrey has no right in the said land. therefore let the said tenants go thence without day and let the said geoffrey pay 2s. pledges, hugh bussel and godfrey francis. 5. juliana saer's daughter demands as her right the moiety of one messuage with a croft, which messuage william snell and goda his wife, sister of the said juliana hold. and they have made accord by leave [of the court] to the effect that the said william and goda give to the said juliana a barn and the curtilage nearest the green and two selions [a ridge of land between two furrows] in the western part of the said croft [a small enclosed field]. and the said william put himself in mercy. fine, 12d. 6. hugh of stanbridge complains of gilbert vicar's son and william of stanbridge that the wife of the said gilbert who is of [gilbert's] mainpast and the said william unjustly etc. beat and unlawfully struck him and dragged him by his hair out of his own proper house, to his damage 40s. and to his dishonor 20s., and [of this] he produces suit. and gilbert and william come and defend all of it fully. therefore let each of them go to his law six-handed. afterwards they make accord to this effect that in case the said hugh shall hereafter in any manner offend against [gilbert and william] and thereof shall be convicted he will give the lord 6s.8d. by way of penalty and will make amends to [gilbert and william] according to the judgment of six lawful men, and the others on their part will do the like by him. and hugh put himself in mercy. fine, 3s. pledges, john tailor and walter brother. 7. breakers of the assize [of beer:] william idle (fined 6d.), maud carter's widow (6d.), walter carter. 8. john witriche in mercy for carrying off thorns. fine, 6d. 9. robert dochi in mercy (fine, 2d.) for divers trespasses. pledges, gilbert priest's son, ralph winbold and walter green. 10. ailwin crisp in mercy for his cow caught in the lord's pasture when ward had been made. fine, 12d. 11. john bernard in mercy for his beasts caught by night in the lord's meadow. fine, 2s. 12. richard love gives 12d. to have a jury of twelve touching a rod of land which robert of brockhole and juliana his wife hold. this action is respited to the next court [when the jurors are to come] without further delay. afterwards the jurors come and say upon their oath that the said richard has the greater right in the said land. therefore let him have seisin. 13. william blackbeard in mercy for not coming with his law as he was bound to do. pledges, geoffrey of wick and geoffrey payn. fine, 6d. 14. it was presented that stephen shepherd by night struck his sister with a knife and grievously wounded her. therefore let him be committed to prison. afterwards he made fine with 2s. pledge, geoffrey of wick. 15. it was presented that robert carter's son by night invaded the house of peter burgess and in felony threw stones at his door so that the said peter raised the hue. therefore let the said robert be committed to prison. afterwards he made fine with 2s. 16. nicholas drye, henry le notte (fine, 12d.) and thomas hogue (fine, 12d.) were convicted for that they by night invaded the house of sir thomas the chaplain and forcibly expelled thence a man and woman who had been taken in there as guests. therefore they are in mercy. pledges of the said thomas, richard of lortemere and jordan of paris. pledges of the said henry, richard pen... and richard butry. 17. adam moses gives half a sextary of wine to have an inquest as to whether henry ayulf accused him of the crime of larceny and used opprobrious and contumelious words of him. afterwards they made accord and henry finds security for an amercement. fine, 12d. 18. isabella sywards in mercy for having sold to richard bodenham land that she could not warrant him. 19. all the ploughmen of great ogbourne are convicted by the oath of twelve men...because by reason of their default [the land] of the lord was ill ploughed whereby the lord is damaged to the amount of 9s.... and walter reaper is in mercy for concealing [i.e. not giving information as to] the said bad ploughing. afterwards he made fine with the lord with 1 mark. 20. from ralph joce 6s.8d. for his son, because he [the son] unlawfully carried off grain from the lord's court. pledge, geoffrey joce. 21. from henry pink 12d. for a trespass by waylaying. 22. from eve corner 6d. for a trespass of her pigs. 23. from ralph scales 6d. for timber carried off. 24. from william cooper 12d. for ploughing his own land with the lord's plough without licence. 25. from hugh newman 12d. for trespass in the wood. 26. from richard penant 12d. for the same. 27. from helen widow of little ogbourne 6d. for the same. 28. from nicholas siward 6d. for a false complaint against william pafey. 29. from william pafey 12d. for fighting with the said nicholas. 30. from the widow of ralph shepherd 6d. for a trespass in pencombe. 31. richard blund gives a half-mark and if he recovers will give two marks and a half to have a jury of the whole court, to inquire whether he has the greater right in a virgate of land which hugh frith holds in wardship with cristiana daughter of simon white, or the said cristiana. pledges for the fine, richard dene, william hulle, john of senholt, hugh smith, and william ketelburn. and the whole court say upon their oath that the said richard has greater right in the said land than anyone else. therefore let him recover his seisin. 32 ....miller gives 2d. [the latin translates as 4s.] for a trespass against the assize of beer and because the lord's grain has been ill kept at the mill. pledges, john orped and joce serjeant. 33. noah gives 2s. in the same way for an inquest as to one acre. afterwards they submit themselves to arbitrators, who adjudge that the said robert shall pay 3s. to the said roger and 6s. to the said gilbert and 7s. to the said noah, and that he will do so [robert] finds pledges. 34. ralph bar in mercy for having beaten one of the lord's men. pledges, herbert rede and ralph brunild. 35. for the common fine of the township, a half-mark. 36. john boneffiant found pledges, to wit, william smith and william of bledlow, that he will not eloign himself from the lord's land and that he will be prompt to obey the lord's summons. chapter 8 the times: 1272-1348 king edward i was respected by the people for his good government, practical wisdom, and genuine concern for justice for everyone. he loved his people and wanted them to love him. he came to the throne with twenty years experience governing lesser lands on the continent which were given to him by his father henry iii. he spoke latin, english, and french. he gained a reputation as a lawgiver and as a peacemaker in disputes on the continent. his reputation was so high and agreement on him as the next king so strong that england was peaceful in the almost two years that it took him to arrive there from continental business. he was truthful, law-abiding, and kept his word. he had close and solid family relationships, especially with his father and with his wife eleanor, to whom he was faithful. he was loyal to his close circle of good friends. he valued honor and adhered reasonably well to the terms of the treaties he made. he was generous in carrying out the royal custom of subsidizing the feeding of paupers. he visited the sick. he was frugal and dressed in plain, ordinary clothes rather than extravagant or ostentatious ones. he disliked ceremony and display. at his accession, there was a firm foundation of a national law administered by a centralized judicial system, a centralized executive, and an organized system of local government in close touch with both the judicial and the executive system. to gain knowledge of his nation, he sent royal commissioners into every county to ask about any encroachments on the king's rights and about misdeeds by any of the king's officials: sheriffs, bailiffs, or coroners. the results were compiled as the "hundred rolls". they were the basis of reforms which improved justice at the local as well as the national level. they also rationalized the array of jurisdictions that had grown up with feudal government. statutes were passed by a parliament of two houses, that of peers (lords) and that of an elected [rather than appointed] commons, and the final form of the constitution was fixed. wardships of children and widows were sought because they were very profitable. a guardian could get one tenth of the income of the property during the wardship and a substantial marriage amount when the ward married. parents often made contracts to marry for their young children. this avoided a forced marriage by a ward should the parents die. most earldoms and many baronages came into the royal house by escheat or marriage. the royal house employed many people. the barons developed a class consciousness of aristocracy and became leaders of society. many men, no matter of whom they held land, sought knighthood. the king granted knighthood by placing his sword on the head of able-bodied and moral candidates who swore an oath of loyalty to the king and to defend "all ladies, gentlewomen, widows and orphans" and to "shun no adventure of your person in any war wherein you should happen to be". a code of knightly chivalry became recognized, such as telling the truth and setting wrongs right. about half of the knights were literate. in 1278, the king issued a writ ordering all freeholders who held land of the value of at least 400s. to receive knighthood at the king's hands. at the royal house and other great houses gentlemanly jousting competitions, with well-refined and specific rules, took the place of violent tournaments with general rules. edward forbade tournaments at which there was danger of a "melee". at these knights competed for the affection of ladies by jousting with each other while the ladies watched. courtly romances were common. if a man convinced a lady to marry him, the marriage ceremony took place in church, with feasting and dancing afterwards. romantic stories were at the height of their popularity. a usual theme was the lonely quest of a knight engaged in adventures which would impress his lady. riddles include: 1. i will make you a cross, and a thing will not touch you, and you will not be able to leave the house without breaking that cross. answer: stand before a post in your house, with your arms extended. 2. what you do not know, and i do not know, and no one can know after i have told you. answer: i will take a straw from the floor of the room, measure its inches, tell you the length, and break the straw. 3. a pear tree bears all the fruit a pear tree can bear and did not bear pears. answer: it bore only one pear. the dress of the higher classes was very changeable and subject to fashion as well as function. ladies no longer braided their hair in long tails, but rolled it up in a net under a veil, often topped with an elaborate and fanciful headdress. they wore nonfunctional long trains on their tunics and dainty shoes. men wore a long gown, sometimes clasped around the waist. overtunics were often lined or trimmed with native fur such as squirrel. people often wore solid red, blue, or green clothes. only monks and friars wore brown. the introduction of buttons and buttonholes to replace pins and laces made clothing warmer, and it could be made tighter. after edward i established the standard inch as three continuous dried barleycorns, shoes came in standard sizes and with a right one different from a left one. the spinning wheel came into existence to replace the handheld spindle. now one hand could be used to form the thread while the other hand turned a large upright wheel that caused the thread to wind around the spindle, which did not have to be held by hand. this resulted in an uninterrupted spinning motion which was not interrupted by alternately forming the thread and winding it on the spindle. lords surrounded themselves with people of the next lower rank, usually from nearby families, and had large households. for instance, the king had a circle of noblemen and ladies about him. a peer or great prelate had a household of about 100-200 people, among which were his inner circle, companions, administrators, secretaries, bodyguards and armed escort, chaplain, singing priests and choirboys, and servants. all officers of the household were gentlemen. the secretary was usually a clerk, who was literate because he had taken minor clerical orders. since the feudal obligation of the tenants was disappearing, a lord sometimes hired retainers to supplement his escort of fighting men. they proudly wore his livery of cloth or hat, which was in the nature of a uniform or badge of service. a nobleman and his lady had a circle of knights and gentlemen and their ladies. a knight had a circle of gentlemen and their ladies. the great barons lived in houses built within the walls of their castles. lesser barons lived in semi-fortified manors, many of which had been licensed to be embattled or crenelated. their halls were two stories high, and usually built on the first rather than on the second floor. windows came down almost to the floor. the hall had a raised floor at one end where the lord and lady and a few others sat at a high table. the hearth was in the middle of the room or on a wall. sometimes a cat was used to open and shut the louvers of the smoke outlet in the roof. the lord's bedroom was next to the hall on the second floor and could have windows into the hall and a spiral staircase connecting the two rooms. there was a chapel, in which the lord attended mass every morning. the many knights usually lived in unfortified houses with two rooms. in the great houses, there were more wall hangings, and ornaments for the tables. the tables were lit with candles or torches made of wax. plates were gold and silver. the lord, his lady, and their family and guests sat at the head table, which was raised on a dais. on this high table was a large and elaborate salt cellar. one's place in relationship to the salt cellar indicated one's status: above or below the salt. also, those of higher status at the table ate a superior bread. the almoner [alms giver] said grace. gentlemen poured the lord's drink [cupbearer], served his meat [carver], and supervised the serving of the food [sewer]. a yeoman ewery washed the hands of the lord and his guests and supplied the napkins, ewers [pitchers], and basins. a yeoman cellarer or butler served the wine and beer. the yeoman of the pantry served the bread, salt, and cutlery. the steward presided over the table of household officers of gentle birth. the marshall of the hall, clerk of the kitchen, or other yeomen officers supervised other tables. salt and spices were available at all tables. most people ate with their fingers, although there were knives and some spoons. drinking vessels were usually metal, horn, or wood. a marshall and ushers kept order. minstrels played musical instruments or recited histories of noble deeds or amusing anecdotes. reading aloud was a favorite pastime. the almoner collected the leftovers to distribute to the poor. in lesser houses people ate off trenchers [a four day old slab of coarse bread or a piece of wood with the middle scooped out like a bowl], or plates of wood or pewter [made from tin, copper, and lead]. they often shared plates and drinking vessels at the table. queen eleanor, a cultivated, intelligent, and educated lady from the continent, fostered culture and rewarded individual literary efforts, such as translations from latin, with grants of her own money. she patronized oxford and cambridge universities and left bequests to poor scholars there. she herself had read aristotle and commentaries thereon, and she especially patronized literature which would give cross-cultural perspectives on subjects. she was kind and thoughtful towards those about her and was also sympathetic to the afflicted and generous to the poor. she shared edward's career to a remarkable extent, even accompanying him on a crusade. she had an intimate knowledge of the people in edward's official circle and relied on the advice of two of them in managing her lands. she mediated disputes between earls and other nobility, as well as softened her husband's temper towards people. edward granted her many wardships and marriages and she arranged marriages with political advantages. she dealt with envoys coming to the court. her intellectual vitality and organized mentality allowed her to deal with arising situations well. edward held her in great esteem. she introduced to england the merino sheep, which, when bred with the english sheep, gave them a better quality of wool. she and edward often played games of chess and backgammon. farm efficiency was increased by the use of windmills in the fields to pump water and by allowing villeins their freedom and hiring them as laborers only when needed. customary service was virtually extinct. a man could earn 5d. for reaping, binding, and shocking into a pile, an acre of wheat. a strong man with a wife to do the binding could do this in a long harvest day. harvests were usually plentiful, with the exception of two periods of famine over the country due to weather conditions. then the price of wheat went way up and drove up the prices of all other goods correspondingly. the story of outlaw robin hood, who made a living by robbing, was passed around. this robin hood did not give to the poor. but generally, there was enough grain to store so that the population was no longer periodically devastated by famine. the population grew and all arable land in the nation came under the plough. the acre was standardized. about 1300, the price of an ox was 9s., a heifer or cow 7s., a hide 2s.6d., a cart horse 2 or 3 pounds. farm women went to nearby towns to sell eggs and dairy products, usually to town women. although manors needed the ploughmen, the carters and drivers, the herdsmen, and the dairymaid on a full-time basis, other tenants spent increasing time in crafts and became village carpenters, smiths, weavers or millers' assistants. trade and the towns grew. smiths used coal in their furnaces. money rents often replaced service due to a lord, such as fish silver, malt silver, or barley silver. the lord's rights are being limited to the rights declared on the extents [records showing service due from each tenant] and the rolls of the manor. sometimes land is granted to strangers because none of the kindred of the deceased will take it. often a manor court limited a fee in land to certain issue instead of being inheritable by all heirs. surveyors' poles marked boundaries declared by court in boundary disputes. this resulted in survey maps showing villages and cow pastures. the revival of trade and the appearance of a money economy was undermining the long-established relationship between the lord of the manor and his villeins. as a result, money payments were supplementing or replacing payments in service and produce as in martham, where thomas knight held twelve acres in villeinage, paid 16d. for it and 14d. in special aids. "he shall do sixteen working days in august and for every day he shall have one repast viz. bread and fish. he shall hoe ten days without the lord's food price of a day 1/2 d. he shall cart to norwich six cartings or shall give 9d., and he shall have for every carting one leaf and one lagena or gallon of ale. also for ditching 1d. he shall make malt 3 1/2 seams of barley or shall give 6d. also he shall flail for twelve days or give 12d. he shall plough if he has his own plough, and for every ploughing he shall have three loaves and nine herrings ... for carting manure he shall give 2." another example is this manor's holdings, when 3d. would buy food for a day: "extent of the manor of bernehorne, made on wednesday following the feast of st. gregory the pope, in the thirty-fifth year of the reign of king edward, in the presence of brother thomas, keeper of marley, john de la more, and adam de thruhlegh, clerks, on the oath of william de gocecoumbe, walter le parker, richard le knyst, richard the son of the latter, andrew of estone, stephen morsprich, thomas brembel, william of swynham, john pollard, roger le glide, john syward, and john de lillingewist, who say that there are all the following holdings:... john pollard holds a half acre in aldithewisse and owes 18d. at the four terms, and owes for it relief and heriot. john suthinton holds a house and 40 acres of land and owes 3s.6d. at easter and michaelmas. william of swynham holds one acre of meadow in the thicket of swynham and owes 1d. at the feast of michaelmas. ralph of leybourne holds a cottage and one acre of land in pinden and owes 3s. at easter and michaelmas, and attendance at the court in the manor every three weeks, also relief and heriot. richard knyst of swynham holds two acres and a half of land and owes yearly 4s. william of knelle holds two acres of land in aldithewisse and owes yearly 4s. roger le glede holds a cottage and three roods of land and owes 2s.6d. easter and michaelmas. alexander hamound holds a little piece of land near aldewisse and owes one goose of the value of 2d. the sum of the whole rent of the free tenants, with the value of the goose, is 18s.9d. they say, moreover, that john of cayworth holds a house and 30 acres of land, and owes yearly 2s. at easter and michaelmas; and he owes a cock and two hens at christmas of the value of 4d. and he ought to harrow for two days at the lenten sowing with one man and his own horse and his own harrow, the value of the work being 4d.; and he is to receive from the lord on each day three meals, of the value of 5d., and then the lord will be at a loss of 1d. thus his harrowing is of no value to the service of the lord. and he ought to carry the manure of the lord for two days with one cart, with his own two oxen, the value of the work being 8d.; and he is to receive from the lord each day three meals at the value as above. and thus the service is worth 3d. clear. and he shall find one man for two days, for mowing the meadow of the lord, who can mow, by estimation, one acre and a half, the value of the mowing of an acre being 6d.: the sum is therefore 9d. and he is to receive each day three meals of the value given above. and thus that mowing is worth 4d. clear. and he ought to gather and carry that same hay which he has cut, the price of the work being 3d. and he shall have from the lord two meals for one man, of the value of 1 1/2 d. thus the work will be worth 1 1/2 d. clear. and he ought to carry the hay of the lord for one day with a cart and three animals of his own, the price of the work being 6d. and he shall have from the lord three meals of the value of 2 1/2 d. and thus the work is worth 3 1/2 d. clear. and he ought to carry in autumn beans or oats for two days with a cart and three animals of his own, the value of the work being 12d. and he shall receive from the lord each day three meals of the value given above. and thus the work is worth 7d. clear. and he ought to carry wood from the woods of the lord as far as the manor, for two days in summer, with a cart and three animals of his own, the value of the work being 9d. and he shall receive from the lord each day three meals of the price given above. and thus the work is worth 4d. clear. and he ought to find one man for two days to cut heath, the value of the work being 4d., and he shall have three meals each day of the value given above: and thus the lord will lose, if he receives the service, 3d. thus that mowing is worth nothing to the service of the lord. and he ought to carry the heath which he has cut, the value of the work being 5d. and he shall receive from the lord three meals at the price of 2 1/2 d. and thus the work will be worth 2 1/2 d. clear. and he ought to carry to battle, twice in the summer season, each time half a load of grain, the value of the service being 4d. and he shall receive in the manor each time one meal of the value of 2d. and thus the work is worth 2d. clear. the totals of the rents, with the value of the hens, is 2s.4d. the total of the value of the works is 2s.3 1/2 d., being owed from the said john yearly. william of cayworth holds a house and 30 acres of land and owes at easter and michaelmas 2s. rent. and he shall do all customs just as the aforesaid john of cayworth. william atte grene holds a house and 30 acres of land and owes in all things the same as the said john. alan atte felde holds a house and 16 acres of land (for which the sergeant pays to the court of bixley 2s.), and he owes at easter and michaelmas 4s., attendance at the manor court, relief, and heriot. john lyllingwyst holds a house and four acres of land and owes at the two terms 2s., attendance at the manor court, relief, and heriot. the same john holds one acre of land in the fields of hoo and owes at the two periods 2s., attendance, relief, and heriot. reginald atte denne holds a house and 18 acres of land and owes at the said periods 18d., attendance, relief, and heriot. robert of northehou holds three acres of land at saltcote and owes at the said periods attendance, relief, and heriot. total of the rents of the villeins, with the value of the hens, 20s. total of all the works of these villeins, 6s.10 1/2 d. and it is to be noted that none of the above-mentioned villeins can give their daughters in marriage, nor cause their sons to be tonsured, nor can they cut down timber growing on the lands they hold, without licence of the bailiff or sergeant of the lord, and then for building purposes and not otherwise. and after the death of any one of the aforesaid villeins, the lord shall have as a heriot his best animal, if he had any; if, however, he have no living beast, the lord shall have no heriot, as they say. the sons or daughters of the aforesaid villeins shall give, for entrance into the holding after the death of their predecessors, as much as they give of rent per year. sylvester, the priest, holds one acre of meadow adjacent to his house and owes yearly 3s. total of the rent of tenants for life, 3s. petronilla atte holme holds a cottage and a piece of land and owes at easter and michaelmas ; also, attendance, relief, and heriot. walter herying holds a cottage and a piece of land and owes at easter and michaelmas 18d., attendance, relief, and heriot. isabella mariner holds a cottage and owes at the feast of st. michael 12d., attendance, relief, and heriot. jordan atte melle holds a cottage and 1 1/2 acres of land and owes at easter and michaelmas 2s., attendance, relief, and heriot. william of batelesmere holds one acre of land with a cottage and owes at the feast of st. michael 3d., and one cock and one hen at christmas of the value of 3d., attendance, relief, and heriot. john le man holds half an acre of land with a cottage and owes at the feast of st. michael 2s., attendance, relief, and heriot. hohn werthe holds one rood of land with a cottage and owes at the said term 18d., attendance, relief, and heriot. geoffrey caumbreis holds half an acre and a cottage and owes at the said term 18d., attendance, relief, and heriot. william hassok holds one rood of land and a cottage and owes at the said term 18d., attendance, relief, and heriot. the same man holds 3 1/2 acres of land and owes yearly at the feast of st. michael 3s. for all. roger doget holds half an acre of land and a cottage, which were those of r. the miller, and owes at the feast of st. michael 18d., attendance, relief, and heriot. thomas le brod holds one acre and a cottage and owes at the said term 3s., attendance, relief, and heriot. agnes of cayworth holds half an acre and a cottage and owes at the said term 18d., attendance, relief, and heriot. total of the rents of the said cottagers, with the value of the hens, 34s.6d. and it is to be noted that all the said cottagers shall do as regards giving their daughters in marriage, having their sons tonsured, cutting down timber, paying heriot, and giving fines for entrance, just as john of cayworth and the rest of the villeins above mentioned." the above fines and penalties, with heriots and reliefs, are worth 5s. yearly. often one village was divided up among two or more manors, so different manorial customs made living conditions different among the villagers. villages usually had carpenters, smiths, saddlers, thatchers, carters, fullers, dyers, soapmakers, tanners, needlers, and brassworkers. each villein had his own garden in which to grow fruit and vegetables next to his house, a pig (which fattened more quickly than other animals), strips in the common field, and sometimes an assart [a few acres of his own to cultivate as he pleased on originally rough uncultivated waste land beyond the common fields and the enclosed common pastures and meadows]. most villeins did not venture beyond their village except for about ten miles to a local shrine or great fair a couple times a year. at the fair might be fish, honey, spices, salt, garlic, oil, furs, silks, canvas, soap, pans, pots, grindstones, coal, nails, tar, iron, shovels, brushes, pails, horses, and packsaddles. early apothecaries might sell potions there. men and women looking for other employment might attend to indicate their availability. under edward i, villages were required to mount watches to protect life and property and were called upon to provide one man for the army and to pay his wages. people told time by counting the number of rings of the church bell, which rang on the hour. every sunday, the villagers went to church, which was typically the most elaborate and centrally located building in the village. the parishioners elected churchwardens, who might be women. this religion brought comfort and hope of going to heaven after judgment by god at death if sin was avoided. on festival days, bible stories, legends, and lives of saints were read or performed as miracle dramas. they learned to avoid the devil, who was influential in lonely places like forests and high mountains. at death, the corpse was washed, shrouded, and put into a rectangular coffin with a cross on its lid. priests sang prayers amid burning incense for the deliverance of the soul to god while interring the coffin into the ground. men who did not make a will risked the danger of an intestate and unconfessed death. the personal property of a man dying intestate now went to the church as a trust for the dead man's imperiled soul instead of to the man's lord. unqualified persons entered holy orders thereby obtaining "benefit of clergy", and then returned to secular employments retaining this protection. a villein could be forever set free from servitude by his lord as in this example: "to all the faithful of christ to whom the present writing shall come, richard, by the divine permission, abbot of peterborough and of the convent of the same place, eternal greeting in the lord: let all know that we have manumitted and liberated from all yoke of servitude william, the son of richard of wythington, whom previously we have held as our born bondman, with his whole progeny and all his chattels, so that neither we nor our successors shall be able to require or exact any right or claim in the said william, his progeny, or his chattels. but the same william, with his whole progeny and all his chattels, shall remain free and quit and without disturbance, exaction, or any claim on the part of us or our successors by reason of any servitude forever. we will, moreover, and concede that he and his heirs shall hold the messuages, land, rents, and meadows in wythington which his ancestors held from us and our predecessors, by giving and performing the fine which is called merchet for giving his daughter in marriage, and tallage from year to year according to our will, that he shall have and hold these for the future from us and our successors freely, quietly, peacefully, and hereditarily, by paying to us and our successors yearly 40s. sterling, at the four terms of the year, namely: at st. john the baptist's day 10s., at michaelmas 10s., at christmas 10s., and at easter 10s., for all service, exaction, custom, and secular demand; saving to us, nevertheless, attendance at our court of castre every three weeks, wardship, and relief, and outside service of our lord the king, when they shall happen. and if it shall happen that the said william or his heirs shall die at any time without an heir, the said messuage, land rents, and meadows with their appurtenances shall return fully and completely to us and our successors. nor will it be allowed to the said william or his heirs to give, sell, alienate, mortgage, or encumber in any way, the said messuage, land, rents, and meadows, or any part of them, by which the said messuage, land, rents, and meadows should not return to us and our successors in the form declared above. and if this should occur later, their deed shall be declared null, and what is thus alienated shall come to us and our successors... given at borough, for the love of lord robert of good memory, once abbot, our predecessor and maternal uncle of the said william, and at the instance of the good man, brother hugh of mutton, relative of the said abbot robert, a.d. 1278, on the eve of pentecost." villeins who were released from the manorial organization by commutation of their service for a money payment took the name of their craft as part of their name, such as, for the manufacture of textiles, weaver, draper, comber, fuller, napper, cissor, tailor, textor; for metalwork, faber, ironmonger; for leatherwork, tanner; for woodwork, building and carpentry, carpenter, cooper, mason, pictor; for food production, baker, pistor. iron, tin, lead, salt, and even coal were providing increasing numbers of people with a livelihood. many new boroughs were founded as grants of market rights by the king grew in number. these grants implied the advantage of the king's protection. in fact, one flooded town was replaced with a new town planned with square blocks. it was the charter which distinguished the borough community from the other communities existing in the country. it invested each borough with a distinct character. the privileges which the charter conferred were different in different places. it might give trading privileges: freedom from toll, a guild merchant, a right to hold a fair. it might give jurisdictional privileges: a right to hold court with greater or less franchises. it might give governmental privileges: freedom from the burden of attending the hundred and county courts, the return of writs, which meant the right to exclude the royal officials, the right to take the profits of the borough, paying for them a fixed sum to the crown or other lord of the borough, the right to elect their own officials rather than them being appointed by the king or a lord, and the right to provide for the government of the borough. it might give tenurial privileges: the power to make a will of lands, or freedom from the right of a lord to control his tenants' marriages. it might give procedural privileges: trial by combat is excluded, and trial by compurgation is secured and regulated. these medieval borough charters are very varied, and represent all stages of development and all grades of franchise. boroughs bought increasing rights and freedoms from their lord, who was usually the king. in the larger towns, where cathedrals and public building were built, there arose a system for teaching these technical skills and elaborate handicraft, wood, metal, stained glass, and stone work. a boy from the town would be bound over in apprenticeship to a particular craftsman, who supplied him with board and clothing. the craftsman might also employ men for just a day. these journeymen were not part of the craftsman's household as was the apprentice. after a few years of an apprenticeship, one became a journeyman and perfected his knowledge of his craft and its standards by seeing different methods and results in various towns. he was admitted as a master of his trade to a guild upon presenting an article of his work worthy of that guild's standard of workmanship: his "masterpiece". women, usually wives of brethren only, could be admitted. the tailors' guild and the skinners' guild are extant now. when guilds performed morality plays based on bible stories at town festivals, there was usually a tie between the bible story and the guild's craft. for instance, the story of the loaves and fishes would be performed by the bakers' or fishmongers' guild. the theme of the morality play was the fight of the seven cardinal virtues against the seven deadly sins for the human soul, a lifelong battle. the number seven was thought to have sacred power; there were seven sacraments, seven churches in the biblical apocalypse, seven liberal arts and seven devilish arts. the seven sacraments were: baptism, confirmation, lord's supper, penance, orders, matrimony, and extreme unction. a borough was run by a mayor elected usually for life. by being members of a guild, merchant-traders and craftsmen acquired the legal status of burgesses and had the freedom of the borough. each guild occupied a certain ward of the town headed by an alderman. the town aldermen, who were unpaid, made up the town council, which advised the mayor. the mayor of london received 40 pounds for hospitality, but in small towns, 20s. sufficed. often there were town police, bailiffs, beadles [messengers], a town crier, and a town clerk. london offices included recorder, prosecutor, common sergeant, and attorneys. in the center of town were the fine stone houses, a guildhall with a belfry tower, and the marketplace a square or broad street, where the town crier made public announcements with bell or horn. here too was the ducking stool for scandalmongers and the stocks which held offenders by their legs and perhaps their hands to be scorned and pelted by bystanders with, for instance, rotten fruit and filth. no longer were towns dominated by the local landholders. in london there were 4 royal princes, 6 great earls, 17 barons, 26 knights, and 11 female representatives of the peerage (counted in 1319). there was a wall with four towers surrounding the white tower, and this castle was known as the tower of london. another wall and a moat were built around it and it has reached its final form. hovels, shops, and waste patches alternated with high walls and imposing gateways protecting mansions. the mansions had orchards, gardens, stables, brewhouses, bakeries, guardrooms, and chapels. london streets were paved with cobbles and sand. each citizen was to keep the street in front of his tenement in good repair. later, each alderman appointed four reputable men to repair and clean the streets for wages. the repair of bishopsgate was the responsibility of the bishop because he received one stick from every cart of firewood passing through it. rules as to tiled roofs were enforced. a 1297 ordinance required all taverns to close at curfew, an hour that fluctuated. prostitutes were expelled from the city because the street with their bawdy houses had become very noisy. women huckster-retailers, nurses, servants, and loose women were limited to wearing hoods furred with lambskin or rabbitskin and forbidden to wear hoods furred with vair or miniver [grey or white squirrel] in the guise of good ladies. an infirmary for the blind was founded by a mercer, who became its first prior. the london mayoral elections were hotly fought over until in 1285, when the aldermen began to act with the aid of an elected council in each of the twenty-four wards, which decentralized the government of the city. each ward chose certain of its inhabitants to be councilors to the aldermen. this council was to be consulted by him and its advice to be followed. in 1291, the aldermen for the first time included a fishmonger. the fishmongers were the only guild at this time, besides the weavers, which had acquired independent jurisdiction by the transfer of control of their weekly hallmote from a public official to themselves. craftsmen began to take other public offices too. by the reign of edward ii, all the citizens were obliged to be enrolled among the trade guilds. a great quarrel between the weaver's guild and the magistracy began the control of the city by the craft guilds or city companies. admission to freedom of the city [citizenship] was controlled by the citizens, who decided that no man of english birth, and especially no english merchant, who followed any specific mistery [french word for a calling or trade] or craft, was to be admitted to the freedom of the city except on the security of six reputable men of that mistery or craft. no longer could one simply purchase citizenship. apprentices had to finish their terms before such admission, and often could not afford the citizenship fee imposed on them. only freemen could sell wares in the city, a custom of at least two hundred years. as economic activity in london became more complex and on a larger scale in the 1200s, some craftsmen were brought under the control of other crafts or merchants. the bakers fell under the control of the wholesale grain dealers; the weavers became pieceworkers for rich cloth merchants; the blademakers and shearers were employed by cutlers; coppersmiths were controlled by girdlers; fullers were controlled by entrepreneurial dyers; and the painters, joiners, and lorimers were controlled by the saddlers. guilds moved their meeting places from churches, which were now too small, to guild halls. the controlling officers of the large guilds met at the guildhall, which became the seat of mayoral authority. london streets in existence by this time include cordwainer, silver, cannon (candlewick), and roper. lanes included ironmonger, soper, spurrier, lad (ladles), distaff, needles, mede, limeburner, and hosier. fighting among groups was common in london. there was a street fight on a large scale in 1327 between the saddlers and a coalition of joiners, painters, and lorimers (makers of metal work of saddles). much blood was shed in the street battle between the skinners and the fishmongers in 1340. there was a city ordinance that no one except royal attendants, baronial valets, and city officials were to go about armed. disputes among neighbors that were brought to court included the use and upkeep of party walls, blocked and overflowing gutters, cesspits too close to a neighbor's property, noisy tenants, loss of light, and dangerous or overhanging structures. in 1275, a goldsmith was chief assay-master of the king's mint and keeper of the exchange at london. the king gave the goldsmiths' company the right of assay [determination of the quantity of gold or silver in an object] and required that no vessels of gold or silver should leave the maker's hands until they had been tested by the wardens and stamped appropriately. in 1279, goldsmith william farrington bought the soke of the ward containing the goldsmiths' shops. it remained in his family for 80 years. a patent of 1327 empowered the guild to elect a properly qualified governing body to superintend its affairs, and reform subjects of just complaint. it also prescribed, as a safeguard against a prevailing fraud and abuse, that all members of the trade should have their standing in cheapside or in the king's exchange, and that no gold or silver should be manufactured for export, except that which had been bought at the exchange or of the trade openly. some prices in london were: large wooden bedstead 18s., a small bedstead 2s., a large chest for household items 2s., feather beds 2-3s., a table 1s., a chair 4-6d., cloth gown lined with fur 1320s., plain coats and overcoats 2-8s., caps 2-8d., a pair of pencases with inkhorn 4d., a skin of parchment 1d., 24 sheets of paper 6d, a carcass of beef 15s., a pig 4s., a swan 5s., and a pheasant 4s. there was a problem with malefactors committing offenses in london and avoiding its jurisdiction by escaping to southwark across the thames. so southwark was given a royal charter which put it under the jurisdiction of london for peace and order matters and allowed london to appoint its tax collector. london forbade games being played because they had replaced practice in archery, which was necessary for defense. a royal inquiry into the state of the currency indicated much falsification and coin-clipping by the jews and others. about 280 jews and many englishmen were found guilty and hanged. the rest of the jews, about 16,000, were expelled in 1290. this was popular with the public because of the abuses of usury. there had been outbreaks of violence directed at the jews since about 1140. the king used italian bankers instead because he thought them more equitable in their dealings. the lepers were driven out of london in 1276. exports and imports were no longer a tiny margin in an economy just above the subsistence level. exports were primarily raw wool and cloth, but also grain, butter, eggs, herring, hides, leather goods such as bottles and boots, embroideries, metalware, horseshoes, daggers, tin, coal, and lead. imported were wine, silk, timber, furs, rubies, emeralds, fruits, raisins, currents, pepper, ginger, cloves, rice, cordovan leather, pitch, hemp, spars, fine iron, short rods of steel, bow-staves of yew, tar, oil, salt, cotton (for candlewicks), and alum (makes dyes hold). ships which transported them had one or two masts upon which sails could be furled, the recently invented rudder, and a carrying capacity of up to 200 tuns [about one ton]. many duties of sheriffs and coroners were transferred to county landholders by commissions. in coastal counties, there were such commissions for supervising coastal defense and maintaining the beacons. each maritime county maintained a coast guard, which was under the command of a knight. ports had well-maintained harbors, quays, and streets. by 1306 there was an office of admiral of the fleet of the ships of the southern ports. women could inherit land in certain circumstances. some tenants holding land in chief of the king were women. regulation of trade became national instead of local. trade was relatively free; almost the only internal transportation tolls were petty portages and viages levied to recoup the expense of a bridge or road which had been built by private enterprise. responsibility for the coinage was transferred from the individual moneyers working in different boroughs to a central official who was to become master of the mint. the round half penny and farthing [1/4 penny] were created so that the penny needn't be cut into halves and quarters anymore. edward i called meetings of representatives from all social and geographic sectors of the nation at one parliament to determine taxes due to the crown. he declared that "what touches all, should be approved by all". he wanted taxes from the burgesses in the towns and the clergy's ecclesiastical property as well as from landholders. he argued to the clergy that if barons had to both fight and pay, they who could do no fighting must at least pay. when the clergy refused to pay, he put them outside the royal protection and threatened outlawry and confiscation of their lands. then they agreed to pay and to renounce all papal orders contrary to the king's authority. the model parliament of 1295 was composed of the three communities. the first were the lords, which included seven earls and forty-one barons. because of the increase of lesser barons due to a long national peace and prosperity, the lords attending were reduced in numbers and peerage became dependent not on land tenure, but on royal writ of summons. the great barons were chosen by the king and received a special summons in their own names to the council or parliament. others were called by a general summons. the second community was the clergy, represented by the two archbishops, bishops from each of eighteen dioceses, and sixty-seven abbots. the third community was the commons. it was composed of two knights elected by the suitors who were then present at the county court, two burgesses elected by principal burgesses of each borough, and two representatives from each city. the country knights had a natural affinity with the towns in part because their younger sons sought their occupation, wife, and estate there. also, great lords recruited younger brothers of yeoman families for servants and fighting men, who ultimately settled down as tradesmen in the towns. the country people and the town people also had a community of interest by both being encompassed by the county courts. the peasants were not represented in the county courts nor in parliament. one had to have land to be entitled to vote because the landowner had a stake in the country, a material security for his good behavior. parliaments without knights and burgesses still met with the king. but it was understood that no extraordinary tax could be levied without the knights and burgesses present. ordinary taxes could be arranged with individuals, estates, or communities. the lower clergy ceased to attend parliament and instead considered taxes to pay to the king during their national church convocations, which were held at the same time as parliament. for collection purposes, their diocesan synod was analogous to the count court. the higher clergy remained in parliament because they were feudal vassals of the king. edward's council was the highest tribunal. it comprised the chancellor, treasurer and other great officers of state, the justices of the three courts, the master or chief clerks of the chancery, and certain selected prelates and barons. the council assisted the king in considering petitions. most petitions to the king were private grievances of individuals, including people of no social rank, such as prisoners. other petitions were from communities and groups, such as religious houses, the two universities, boroughs, and counties. these groups sometimes formed alliances in a common cause. women sometimes petitioned. >from 1293, the petitions were placed in four stacks for examination by the king and council, by the chancery, by the exchequer, or by the justices. many hours were spent hearing and answering petitions. from 1305, the petitions were presented to the king in full parliament. the king still exercised the power of legislation without a full parliament. he might in his council issue proclamations. the chief justices still had, as members of the king's council, a real voice in the making of laws. the king and his justices might, after a statute has been made, put an authoritative interpretation upon it. royal proclamations had the same force as statutes while the king lived; sometimes there were demands that certain proclamations be made perpetual by being embodied in statutes, e.g. fixing wages. there was no convention that agreement or even the presence of representatives was required for legislation. the idea that the present can bind the absent and that the majority of those present may outvote the minority was beginning to take hold. edward i's councilors and justices took an oath to give, expedite, and execute faithful counsel; to maintain, recover, increase, and prevent the diminution of, royal rights; to do justice, honestly and unsparingly; to join in no engagements which may present the councilor from fulfilling his promise; and to take no gifts in the administration of justice, save meat and drink for the day. these were in addition to other matters sworn to by the councilors. parliament soon was required to meet at least once a year at the great hall at westminster beside the royal palace. london paid its representatives 10s. per day for their attendance at parliament. >from the time of edward ii, the counties paid their knightrepresentatives 4s. daily, and the boroughs paid their burgessrepresentatives 2s. daily. when it convened, the chancellor sat on the left and the archbishop of canterbury on the right of the king. just below and in front of the king his council sits on wool sacks brought in for their comfort from wool stored nearby. it answers questions. behind them on the wool sacks sit the justices, who may be called upon to give legal advice, e.g. in framing statutes. then come the spiritual and lay barons, then the knights, and lastly the elected burgesses and citizens. lawmaking is now a function of parliament, of which the king's council is a part, instead of a function of the king with his council and justices. the common people now had a voice in lawmaking, though legislation could be passed without their consent. the first legislation proposed by the commons was alteration of the forest laws governing the royal pleasure parks. such a statute was passed in a bargain for taxes of a percentage of all movables, which were mostly foodstuffs and animals. the king offered to give up the royal right to tax merchandise for a new tax: customs on exports. the barons and knights of the county agreed to pay an 11th, the burgesses, a 7th, and the clergy a 10th on their other movables. in time, several boroughs sought to be included in the county representation so they could pay the lower rate. this new system of taxation began the decline of the imposition of feudal aids, knights' fees, scutages, carucage, and tallage, which had been negotiated by the exchequer with the reeves of each town, the sheriff and county courts of each county, and the bishops of each diocese. the staple [depot or mart, from the french "estaple"] system began when the export of wool had increased and parliament initiated customs duties of 6s.8d. on every sack of wool, woolfells [sheepskin with wool still on it], or skins exported in 1275. these goods had to be assessed and collected at certain designated ports. certain large wool merchants, the merchants of the staple, were allowed to have a monopoly on the purchase and export of wool. imports of wine were taxed as tunnage as before, that is there was a royal right to take from each wine ship one cask for every ten at the price of 20s. per cask. in 1297, edward i confirmed the magna carta and other items. judgments contrary to magna carta were nullified. the documents were to be read in cathedral churches as grants of edward and all violators were to be excommunicated. he also agreed not to impose taxes without the consent of parliament after baronial pressure had forced him to retreat from trying to increase, for a war in france, the customs tax on every exported sack of wool to 40s. from the 6s. 8d. per sack it had been since 1275. the customs tax was finally fixed at 10s. for every sack of wool, 2s. for each tun [casket] of wine, and 6d. for every pound's worth of other goods. the "tenths and fifteenths" tax levied on income from movables or chattels became regular every year. edward also confirmed the forest charter, which called for its earlier boundaries. and he agreed not to impound any grain or wool or and like against the will of the owners, as had been done before to collect taxes. also, the special prises or requisitions of goods for national emergency were not to be a precedent. lastly, he agreed not to impose penalties on two earls and their supporters for refusing to serve in the war in france when the king did not go. >from 1299, statutes were recorded in a statute roll as they were enacted. by the end of the 1200s, the king's wardrobe, where confidential matters such as military affairs were discussed in his bedroom, became a department of state with the king's privy seal. the keeper of the privy seal was established as a new office by edward i in 1318. the wardrobe paid and provisioned the knights, squires, and sergeants of the king and was composed mostly of civil servants. it traveled with the king. the crown's treasure, plate, tents, hangings, beds, cooking utensils, wine, and legal and financial rolls were carried on pack horses or in two-wheeled carts drawn by oxen, donkeys, or dogs. the people in the entourage rode horses or walked. the other two specialized administrative bodies were the exchequer, which received most of the royal revenue and kept accounts at westminster, and the chancery, which wrote royal writs, charters, and letters, and kept records. the chief functions of administration in the 1300s were performed by the council, chancery, wardrobe, chamber [room off wardrobe for dressing and for storage], and exchequer. many of the chancellors had come from the wardrobe and chamber. in time, the chancellor ceased to be a part of the king's personal retinue and to follow the court. the chancery became primarily a department of central administration rather than a secretariat and record-keeping part of the royal household. the king used a privy seal to issue directives to the chancery. edward iii made some merchants earls and appointed them to be his ministers. he did not summon anyone to his council who did not have the confidence of the magnates [barons, earls, bishops, and abbots]. there was a recoinage due to debasement of the old coinage. this increased the number of coins in circulation. the price of wheat went from about 7s. in 1270 to about 5s. per quarter in 1280. also the price of an ox went from 14s. to 10s. then there were broad movements of prices, within which there were wide fluctuations, largely due to the state of the harvest. from 1280 to 1290, there was runaway inflation. in some places, both grain and livestock prices almost doubled between 1305 and 1310. wheat prices peaked at 15s.5d. a quarter in the famine year of 1316. in 1338, prices dropped and remained low for twenty years. the poor were hurt by high prices and the lords of the manors were hurt by low prices. as before, inadequate care and ignorance of nutrition caused many infant deaths. accidents and disease were so prevalent that death was always near and life insecure. many women died in childbirth. in the 1300s, there were extremes of fashion in men's and women's clothing including tight garments, pendant sleeves down to the ground, coats so short they didn't reach the hips or so long they reached the heels, hoods so small they couldn't cover the head, and shoes with long curved peaks like claws at the toes. both men and women wore belts low on the hips. the skirt of a lady's tunic was fuller and the bodice more closely fitted than before. her hair was usually elaborately done up, e.g. with long curls or curled braids on either side of the face. a jeweled circlet was often worn around her head. ladies wore on their arms or belts, cloth handbags, which usually contained toiletries, such as combs made of ivory, horn, bone, or wood, and perhaps a little book of devotions. a man wore a knife and a bag on his belt. some women painted their faces and/or colored their hair. there were handheld glass mirrors. some people kept dogs purely as pets. there was a great development of heraldic splendor with for instance, crests, coat-armor, badges, pennons [long, triangular flag], and helmets. they descended through families. not only was it a mark of service to wear the badge of a lord, but lords wore each other's badges by way of compliment. edward i always sought the agreement of parliament before assembling an army or taking actions of war, and parliamentary consent came to be expected for such. he completed the conquest and annexation of wales in 1284. the feudal army was summoned for the last time in the 100 year war with france, which began in 1337. in it the english longbow was used to pierce french knights' armor. there had been much competition between the strength of arrows to pierce and the heaviness of armor to resist. guns and cannon with gunpowder were introduced in 1338. a system to raise an army by contract was developed. contracts were made with nobles, knights, or esquires who undertook to enlist an agreed number of armored men-at-arms and archers, who were paid wages. the king provided transport for each contractor and his retinue, baggage, and horses. the title of "knight" now resumed its military character as well as being a social rank. after edward i died in 1307, there was a period of general lawlessness and contests for power between earls and barons and the irresponsible king edward ii, who was not a warrior king. he eventually was assassinated. also in 1307, parliament required the king to obtain its consent for any exchange or alteration of the currency. by 1319, the guilds of london had become so powerful that they extracted a charter from the king that to be a citizen of london one had to be a member of a guild. by 1326, scholars, the nobility, and the clergy had reading eyeglasses, which had been invented in italy, probably by the glass blowers. italy was famous for its glasswork. the first eyeglasses were fabricated by pouring molten glass into curved molds. the actual shape was difficult to control because thermal expansion and contraction resulted in bubbles and other optical imperfections. as of 1336, importing foreign cloth or fur, except for use by the king's family, was prohibited, as was the export of unwoven wool. later, this was relaxed and a customs tax of 33% was imposed on wool exported. foreign cloth workers were allowed by statute to come to live in the nation, be granted franchises, and be in the king's protection. but no cloth was to be exported until it was fulled. during the reign of edward iii, flanders weavers were encouraged to come to england to teach the english how to weave and finish fine cloth. a cloth industry grew with all the manufacturing processes under the supervision of one capitalist manufacturer, who set up his enterprise in the country to avoid the regulations of the towns. the best places were hilly areas where there were many streams and good pasture for flocks of sheep. he hired shearers to cut the nap as short as possible to give a smooth surface, then spinsters to card and spin the wool in their country cottages, then weavers, and then fullers and dyers to come to fulling mills established near streams for their waterpower. fulling became mechanized as heavy wooden hammers run by waterpower replaced feet trampling the cloth covered with soap or fuller's clay. the shaft loom was a technological advance in weaving. this loom was horizontal and its frames, which controlled the lifting of the warp threads, could each be raised by a foot treadle. this left both hands free to throw and catch the shuttle attached to the weft thread from side to side through the warp. also many more weaving patterns became possible through the use of different thread configurations on the frames. in 1341, the commons forced king edward iii and council to approve their petition when parliament was still in session so that they would draft the legislation in true accordance with the petition. this had not been done when drafting had been done after parliament ended, when the phrase "saving the prerogatives of the king" was often added. also the lords and commons consulted each other and joined in petitions. but they usually stated their conclusions to the king separately. it was considered a burden rather than a privilege to attend parliament and elections for such were not often contested. they were conducted according to local custom until 1600. in 1348, the commons voted a tax of 1/15 th on movables for three years with the proviso that it be spent only on the war against scotland. this began the practice of appropriation of funds. in 1381, began the practice of appointing treasurers of the subsidies to account to parliament for both receipts and disbursements. alien merchants were under the king's special protection. in return for paying extra import and export duties, edward iii gave alien merchants full rights of trade, travel, and residence in england free of all local tolls and restrictions, and guaranteed a fair hearing of their commercial and criminal cases in special pie powder (after french "pie poudrous" or dusty feet) courts at fairs. the law edward i remodeled the law in response to grievances and to problems which came up in the courts. the changes improved the efficiency of justice and served to accommodate it to the changing circumstances of the social system. "no man by force of arms, malice or menacing shall disturb anyone in making free election [of sheriffs, coroners, conservators of the peace by freeholders of the county]." "no city, borough, town, nor man shall be amerced without reasonable cause and according to the severity of his trespass. that is, every freeman saving his freehold, a merchant saving his merchandise, a villein saving his wainage [implements of agriculture], and that by his peers." no distress shall be taken of ploughing-cattle or sheep. young salmon shall not be taken from waters in the spring. no loan shall be made for interest. if an heir who is a minor is married off without the consent of the guardian, the value of the marriage will be lost and the wrongdoer imprisoned. if anyone marries off an heir over 14 years of age without the consent of the guardian, the guardian shall have double the value of the marriage. moreover, anyone who has withdrawn a marriage shall pay the full value thereof to the guardian for the trespass and make amends to the king. and if a lord refuses to marry off a female heir of full age and keep her unmarried because he covets the land, then he shall not have her lands more than two years after she reaches full age, at which time she can recover her inheritance without giving anything for the wardship or her marriage. however, if she maliciously refuses to be married by her lord, he may hold her land and inheritance until she is the age of a male heir, that is, 21 years old and further until he has taken the value of the marriage. aid to make one's son a knight or marry off his daughter of a whole knight's fee shall be taken 20s., and 400s. [yearly income from] land held in socage 20s. [5%], and of more, more; and of less, less; after the rate. and none shall levy such aid to make his son a knight until his son is 15 years old, nor to marry his daughter until she is seven year old. a conveyance of land which is the inheritance of a minor child by his guardian or lord to another is void. dower shall not abate because the widow has received dower of another man unless part of the first dower received was of the same tenant and in the same town. but a woman who leaves her husband for another man is barred from dower. a tenant for a term of years who has let land from a landlord shall not let it lie waste, nor shall a landlord attempt to oust a tenant for a term of years by fictitious recoveries. when two or more hold wood, turfland, or fishing or other such thing in common, wherein none knows his several, and one does waste against the minds of the others, he may be sued. lands which are given to a man and his wife upon condition that if they die without heirs, the land shall revert to the donor or his heir, may not be alienated to defeat this condition. if a man takes land in marriage with a wife, and she dies before him, the land will revert to the donor or his heir, unless the couple has a child, in which case the husband will have the land by the courtesy of the nation for his life before it reverts to the donor or his heir. the ecclesiastical law had a doctrine for women-covert, i.e. women under the protection or coverture of a husband. it held that chattels of a woman who married vested in her husband, but he could not dispose of them by will. her jewelry, but not her apparel, could go to his creditors if his assets didn't cover his debts. if she was a merchant when she married, she could still sell her goods in the open market. the husband also had the right to the rents and profits from his wife's real estate, but not the real estate itself, unless by the birth of a child he became tenant for life by courtesy. only the father, but not the mother had authority over their children. a father had a right to his child's services, and could sue a third party for abducting, enticing away, or injuring the child, just as he could for his servants. a husband was liable for the debts of his wife, even if incurred before the marriage. he was answerable for her torts and trespasses, except for battery. for this reason, he was allowed to chastise her, restrain her liberty for gross misbehavior, and punish her by beating for some misdemeanors. but the courts would protect her from death, serious bodily harm, or his failure to supply her the necessities of life. promises under oath were not recognized for married women. a conveyance or agreement of a married woman was void. these principles held only if she was under the protection of her husband, i.e. a woman-covert, and not if they lived separately, for instance if he went to sea. if separated, she had a right to alimony from him to maintain herself. a free tenant may alienate his land freely, but if the alienation was for an estate in fee simple [to a man and his heirs], the person acquiring the land would hold of the land's lord and not of the person alienating the land. (this halted the growth of subinfeudation and caused services as well as incidents of aids, relief, escheat, wardship, and marriage to go directly to the chief lord. it also advantaged the crown as overlord, which then acquired more direct tenants.) one may create an estate which will descend in unbroken succession down the line of inheritance prescribed in the original gift as long as that line should last, instead of descending to all heirs. this was called a fee simple conditional holding of land. the successive occupants might draw the rents and cut the wood, but on the death of each, his heir would take possession of an unencumbered interest, unfettered by any liability for the debt of his ancestor or by any disposition made by him during his lifetime e.g. a wife's estate in dower or a husband's estate in courtesy. if there was no issue, it reverted to the original donor. (this curtailed the advantage of tenants of the greater barons who profited by increased wardships and reliefs from subinfeudation from subdivision and better cultivation of their land while still paying the greater barons fixed sums. this statute that protected reversionary estates incidentally established a system of entails. this new manner of holding land: "fee tail", is in addition to the concepts of land held in fee simple (i.e. with no subdivisions) and land held for life. no grantee or his heirs could alienate the land held in fee tail. the donor could give directions that the land could remain to another person rather than reverting to himself. (interests in remainder or reversion of estates in land replace the lord's tenurial right to succeed to land by escheat if his tenant dies without heirs.) in kent, all men are free and may give or sell their lands without permission of their lords, as before the conquest. (since kent was nearest the continent, money flowed between england and the continent through kent. so kent never developed a manorial system of land holding, but evolved from a system of clans and independent villages directly into a commercial system. anyone disseising another whereby he also robs him or uses force and arms in the disseisin shall be imprisoned and fined. the plaintiff shall recover seisin and damages. "all must be ready at the command and summons of sheriffs, and at the cry of the country, to sue and arrest felons as necessary as well within franchise as without." otherwise, he shall be fined. a lord defaulting shall lose his franchise to the king. a bailiff defaulting shall be imprisoned a year as well as fined, or be imprisoned two years if he cannot pay the fine. a sheriff, coroner, or any other bailiff who conceals a felony will be imprisoned for a year and pay a fine, or be imprisoned for three years if he cannot pay the fine. villeins must report felons, pursue felons, serve in the watch, and clear growth of concealing underwood from roads. they must join the military to fight on the borders when called. desertion from the army is punishable. accessories to a crime shall not be declared outlaw before the principal is proven guilty. (this made uniform the practice of the various counties.) only those imprisoned for the smaller offenses of a single incidence of petty larceny, receipt of felons, or accessory to a felony, or some other trespass not punishable by life or limb shall be let out by sufficient surety. prisoners who were outlawed or escaped from prison or are notorious thieves or were imprisoned for felonious house burning, passing false money, counterfeiting the king's seal, treason touching the king himself, or other major offenses or have been excommunicated by the church may not be released. killing in self-defense and by mischance shall be pardoned from the king's indictment. killing by a child or a person of unsound mind shall be pardoned from the king's indictment. (but a private accuser can still sue.) any man who ravishes [abducts] any woman without her consent or by force shall have the criminal penalty of loss of life or limb. (the criminal penalty used to be just two years in prison.) trespasses in parks or ponds shall be punished by imprisonment for three years and a fine as well as paying damages to the wronged person. after his imprisonment, he shall find a surety or leave the nation. "forasmuch as there have been often times found in the country devisors of tales, where discord, or occasion of discord, has many times arisen between the king and his people, or great men of this realm; for the damage that has and may thereof ensue, it is commanded, that from henceforth none be so hardy to tell or publish any false news or tales, whereby discord or occasion of discord or slander may grow between the king and his people, or the great men of the realm." anyone doing so shall be imprisoned until he brings into the court the first author of the tale. a system of registration and enforcement of commercial agreements was established by statute. merchants could obtain a writing of a debt sealed by the debtor and authenticated by royal seal or a seal of a mayor of certain towns, and kept by the creditor. failure to pay a such a debt was punishable by imprisonment and, after three months, the selling of borough tenements and chattels and of county lands. during the three months, the merchant held this property in a new tenure of "statute merchant". (prior to this, it was difficult for a foreign merchant to collect a debt because he could not appear in court which did not recognize him as one of its proper "suitors" or constituents, so he had to trust a local attorney. also, the remedy was inadequate because the history of the law of debt was based on debt as a substitute for the blood feud, so that failure to pay meant slavery or death. also a debtor's land was protected by feudal custom, which was contrary to the idea of imposing a new tenant on a lord.) "in no city, borough, town, market, or fair shall a person of the realm be distrained for a debt for which he is not the debtor or pledge." anyone making those passing with goods through their jurisdiction answer to them in excess of their jurisdiction shall be grievously amerced to the king. no market town shall take an outrageous toll contrary to the common custom of the nation. since good sterling money has been counterfeited with base and false metal outside the nation and then brought in, foreigners found in the nation's ports with this false money shall forfeit their lives. anyone bringing money into the nation must have it examined at his port of entry. payments of money shall be made only by coin of the appropriate weight delivered by the warden of the exchange and marked with the king's mark. (a currency exchange was established at dover for the exchange of foreign currency for english sterling.) the silver in craftwork must be sterling and marked with the leopard's head. the gold in craftwork must meet the standard of the touch of paris. the assize of bread and ale had been and was enforced locally by local inspectors. now, the crown appointed royal officers for the gauge of wines and measurement of cloths. edicts disallowed middlemen from raising prices against consumers by such practices as forestalling [intercepting goods before they reached the market and then reselling them] or engrossing [buying a large supply of a commodity to drive up the price] and price regulation was attempted. for instance, prices were set for poultry and lamb, in a period of plenty. maximum prices were set for cattle, pigs, sheep, poultry, and eggs in 1314, but these prices were hard to enforce. in london examples of prices set are: best hen 3d.2q., best wild goose 4d., best hare 4d., best kid 10d., best lamb 4d., best fresh herrings 12 for 1d., best pickled herrings 20 for 1d., best haddock 2d., best fresh salmon 3s. freemen may drive their swine through the king's demesne forest to feed in their own woods or elsewhere. no man shall lose his life or limb for killing deer in the forest, but instead shall be grievously fined or imprisoned for a year. the forest charter allowed a man to cut down and take wood from his own woods in the king's forest to repair his house, fences, and hedges. he may also enclose his woods in the king's forest with fences and hedges to grow new trees and keep cattle and beasts therefrom. after seven years growth of these new trees, he may cut them down for sale with the king's permission. each borough has its own civil and criminal ordinances and police jurisdiction. borough courts tended to deal with more laws than other local courts because of the borough's denser populations, which were composed of merchants, manufacturers, and traders, as well as those engaged in agriculture. only borough courts have jurisdiction over fairs. in some boroughs the villein who resides for a year and a day becomes free. there are special ordinances relating to apprentices. there are sometimes ordinances against enticing away servants bound by agreement to serve another. the wife who is a trader is regarded in many places as a feme sole [single woman rather than a feme covert [woman-covert], who was under the protection of a husband]. there may be special ordinances as to the liability of masters for the acts of their apprentices and agents, or as to brokers, debt, or earnest money binding a bargain. the criminal and police jurisdiction in the borough was organized upon the same model as in the country at large, and was controlled by the king's courts upon similar principles, though there are some survivals of old rules, such as mention of the bot and the wer. the crimes committed are similar to those of the country, such as violence, breaches of the assize of bread and beer, stirring up suits before the ecclesiastical courts, digging up or obstructing the highway, not being enrolled in a tithing, encroachments upon or obstructions of rights of common. the most striking difference with the country at large are the ordinances on the repair or demolition of buildings, encroachments on another's building, fires, and nuisances. specimens of other characteristic urban disputes are: selling bad food, using bad materials, unskillful or careless workmanship, fraudulent weights and measures, fraud in buying and selling, forestalling or regrating [buying in one market to resell in another market], acting in a way likely to endanger the liberties of the borough, usury, trading without being a citizen, assisting other unlicensed persons to trade, unlawfully forming a guild, complaints against various guilds in which trade might be organized. since the ordinances were always liable to be called in question before the king's courts, they tended to become uniform and in harmony with the principles of the common law. also, trading between boroughs kept them knowledgeable about each other's customs and conditions for trade, which then tended to standardize. boroughs often had seals to prove communal consent and tended to act as a corporate body. borough ordinances often include arson such as this one: "and if a street be set on fire by any one, his body shall be attached and cast into the midst of the fire." robbery by the miller was specially treated by an ordinance that "and if the miller be attainted [found guilty] of robbery of the grain or of the flour to the amount of 4d., he shall be hanged from the beam in his mill." in london, an ordinance prescribed for bakers for the first offense of making false bread a forfeiture of that bread. for the second offense was prescribed imprisonment, and for the third offense placement in the pillory. a london ordinance for millers who caused bread to be false prescribed for them to be carried in a tumbrel cart through certain streets, exposed to the derision of the people. by statute, no one may make a gift or alienation of land to the church. an attempt to do so will cause the land to escheat to the lord, or in his default, to the king. religious houses may not alienate land given to them by the king or other patrons because such gifts were for the sake of someone's soul. an attempt to do so will cause the land to revert to the donor or his heir. if the church did not say the prayers or do the other actions for which land was given to it, the land will revert to the donor or his heir. land may not be alienated to religious bodies in such a way that it would cease to render its due service to the king. (the church never died, never married, and never had children.) the church shall send no money out of the nation. (this statute of mortmain was neutralized by collusive lawsuits in which the intended grantor would sue the intended grantee claiming superior title and then would default, surrendering the land to the intended grantee by court judgment.) "concerning wrecks of the sea, where a man, a dog, or a cat escape alive out of the ship, that such ship nor barge nor anything within them shall be deemed wreck, but the goods shall be saved and kept by view of the sheriff, coroner, or the king's bailiff". if anyone proves the goods were his within a year and a day, they shall be restored to him without delay. otherwise, they shall be kept by the king. "and where wreck belongs to one other than the king, he shall have it in like manner". if he does otherwise, he shall be imprisoned and pay damages and fine. some statutes applied only to kent county, which had a unique position between london and the continent. one could sell or give away his land without the consent of one's lord. the services of the land, however, could only be sold to the chief lord. inheritance of land was to all sons by equal portions, and if there were no sons, then to all daughters in equal portions. the eldest brother has his choice of portion, then the next oldest, etc. the goods of a deceased person were divided into three parts after his funeral expenses and debts were paid. one third went to the surviving spouse. one third went to the deceased's sons and daughters. one third could be disposed by will of the decedent. if there were no children, one half went to the spouse and one half went according to will. if an heir was under 15 years old, his next of kin to whom inheritance could not descend was to be his guardian. a wife who remarried or bore a child lost her dower land. a husband lost his dower if he remarried. if a tenant withheld rent or services, his lord could seek award of court to find distress on his tenement and if he could find none, he could take the tenement for a year and a day in his hands without manuring it. it the tenant paid up in this time, he got the tenement back. if he didn't within a year and a day, however, the lord could manure the land. a felon forfeited his life and his goods, but not his lands or tenements. a wife of a felon had the dower of one half or her husband's lands and tenements. the common law recognized the tort of false imprisonment if a man arrested as a felon, a person who was not a felon. judicial procedure the writ of quo warranto [by what right] is created, by which all landholders exercising jurisdictions must bring their ancestors' charters before a traveling justice for the common pleas for examination and interpretation as to whether they were going beyond their charters and infringing upon the jurisdiction of the royal court. as a result, many manor courts were confined to manorial matters and could no longer view frankpledge or hear criminal cases, which were reserved for the royal courts. in the manor courts which retained criminal jurisdiction, there was a reassertion of the obligation to have present a royal coroner, whose duty it was to see that royal rights were not infringed and that the goods of felons were given to the crown and not kept by the lords. the supreme court was the king and his council in parliament. it heard the most important causes, important because they concern the king, or because they concern very great men (e.g. treason), or because they involve grave questions of public law, or because they are unprecedented. it has large, indefinite powers and provides new remedies for new wrongs. the office of great justiciar disappears and the chancellor becomes the head of the council. after the council were the royal courts of the king's bench, common pleas, and the exchequer, which had become separate, each with its own justices and records. the court of common pleas had its own chief justice and usually met at westminster. this disadvantaged the small farmer, who would have to travel to westminster to present a case. the king's council maintained a close connection with the court of the king's bench, which heard criminal cases and appeals from the court of common pleas. it traveled with the king. there were many trespass cases so heard by it in the reign of edward i. the king's council did a great deal of justice, for the more part criminal justice. it was supported by the populace because it dealt promptly and summarily with rebellion or some scandalous acquittal of a notorious criminal by bribed or partial jurors, and thereby prevented anarchy. its procedure was to send for the accused and compel him to answer upon oath written interrogatories. affidavits were then sworn upon both sides. with written depositions before them, the lords of the council, without any jury, acquit or convict. fines and imprisonments were meted out to rioters, conspirators, bribers, and perjured jurors. no loss of life or limb occurred because there had been no jury. in criminal cases, witnesses acquainted with particular facts were added to the general assize of twelve men from each hundred and four men from each town. the assize then bifurcated into the grand jury of twelve to twenty-four men and the petty jury or jury of verdict of twelve men, which replaced ordeal, compurgation, and trial by combat as the method of finding the truth. the men of the petty jury as well as those of the grand jury were expected to know or to acquaint themselves with the facts of the cases. the men of the petty jury tended to be the same men who were on the grand jury. felony included such crimes as homicide, arson, rape, robbery, burglary, and larceny. murder still meant secret homicide. burglary was an offense committed in times of peace and consisted of breaking into churches, houses, and into the walls and gates of villages and boroughs. these six offenses could be prosecuted by indictment or private accusation by an individual. the penalties involved loss of life or limb or outlawry; a felon's goods were confiscated by the crown and his land was forfeited to the crown for a year and a day, after which it escheated to the felon's lord. the peace of the king now did not die with the king, but renewed automatically without an interval before the inauguration of a new king. notorious felons who would not consent or put themselves on inquests for felonies with which they were charged at royal courts were put in strong and hard imprisonment to persuade them to accept trial by assize. this inducement progressed into being loaded with heavy chains and placed on the ground in the worst part of the prison and being fed a only little water one day and a little bread the next. sometimes pieces of iron or stones were placed one another onto their prone bodies to persuade them to plead. this then developed into being loaded with as much iron as could be borne, and finally into being pressed to death ["peine forte et dure"]. many of these men chose to die by this pressing so that their families could inherit their property, which would have been forfeited if they had been convicted of serious crimes. the most common cases in the court of common pleas were "detinue" [wrongful detention of a good or chattel which had been loaned, rented, or left for safekeeping with a "bailee", but belonged to the plaintiff], "debt" [for money due from a sale, for money loaned, for rent upon a lease for years, from a surety, promised in a sealed document, or due to arbitrators to whom a dispute had been submitted] and "account" [e.g. against bailiffs of manors, a guardian in socage, and partners]. it also heard estovers of wood, profit by gathering nuts, acorns, and other fruits in wood, corody [allowance of food], yearly delivery of grain, toll, tunnage, passage, keeping of parks, woods, forests, chases, warrens, gates, and other bailiwicks, and offices in fee. the itinerant justices gradually ceased to perform administrative duties on their journeys because landed society had objected to their intrusiveness. edward i substituted regular visitations of justices of assize for the irregular journeys of the itinerant justices. each one of four circuits had two justices of assize. >from about 1299, these justices of assize heard cases of gaol delivery. their jurisdiction expanded to include serious criminal cases and breach of the king's peace. breaches of the forest charter laws were determined by justices of the king's forest, parks, and chases, along with men of assize. coroners' inquest procedures were delineated by statute and included describing in detail in the coroner's rolls every wound of a dead body, how many may be culpable, and people claiming to have found treasure who might be suspects. the precedent for punishment for treason was established by the conviction of a knight, david ab gruffydd, who had turned traitor to the welsh enemy, after fighting with edward and being rewarded with land, during the conquest of wales. he had plotted to kill the king. he was found guilty of treason by parliament and condemned to be dragged at the heels of horses for being a traitor to his knightly vows, hanged by the neck for his murders, cut down before consciousness left him to have his entrails cut out for committing his crimes during the holy week of easter, and his head cut off and his body divided into four parts for plotting against the king's life. the head was placed on the tower of london and his body sections were placed in public view at various other locations in england. this came to be known as "hanging, drawing, and quartering". prior to this the penalty had been imprisonment, usually followed by ransom. trial by combat is now limited to certain claims of enfeoffment of large land holding and is barred for land held in socage, burgage, or by marriage. assize is the usual manner of trial, but compurgation remains in the borough court long after it becomes obsolete in the royal courts. defendants no longer request assizes but are automatically put to them. numerous statutes protect the integrity of the courts and king's offices by double and treble damages and imprisonment for offenses such as bribery, false informers, conspiracy to falsely move or maintain pleas, champerty [covenant between a litigant and another for the other to have a part or profit in the award in return for maintaining the suit], conflict of interest by court officers taking part in a quarrel pending in court or working any fraud whereby common right may be delayed or disturbed. there had been many abuses, the most common of which was extortion by sheriffs, who gaoled people without cause to make them pay to be released. the 1275 prohibition of maintenance of a quarrel of a party in court by a nonparty was extended in 1327 to all persons, including the king's councilors and ministers, and great men, e.g. by sending letters. in 1346, this prohibition specifically included prelates, earls, barons taking in hand quarrels other than their own, or maintaining them for gift, promise, amity, favor, doubt, or fear, in disturbance of law and hindrance of right. the reason given was that there had been persons disinherited, delayed or disturbed in their rights, and not guilty persons convicted or otherwise oppressed. all great men were required to put out of their service all maintainers who had been retained, and void their fees and robes, without giving them aid, favor, or comfort. this law was not obeyed. the king reserved to himself and his council in its judicial capacity the correction of all breaches of the law which the lower courts had failed to remedy, whether from weakness, partiality, corruption, or jury timidity, and especially when the powerful barons defied the courts. the chancery also sought to address causes which were impeded in their regular course, which often involved assaults, batteries, and forcible dispossessions. disputes within the royal household were administered by the king's steward. he received and determined complaints about acts or breaches of the peace within twelve miles around the king's person or "verge". he was assisted by the marshall in the "court of the hall" and by the clerk of the market when imposing fines for trading regulation violations in the "court of the market". ecclesiastical courts were successful in their competition with the secular courts for jurisdiction over testamentary matters [concerning wills] and succession [no will] to chattels. there were local courts of the vill, borough, manor, hundred, county, sheriff, escheator, and royal bailiff, with overlapping jurisdictions. the county court in its full session, that is, as it attended the itinerant justices on their visitation, contained the archbishops, bishops, priors, earls, barons, knights, and freeholders, and from each township four men and the reeve, and from each borough twelve burgesses. it was still the folkmote, the general assembly of the people. in 1293, suitors who could not spend 40s. a year within their county were not required to attend their county court. the most common plea in the hundred court was trespass. it also heard issues concerning services arising out of land, detention of chattels, small debts, wounding or maiming of animals, and personal assaults and brawls not amounting to felony. it met every three weeks. the sheriff held his turn twice a year and viewed frankpledge once a year. when edward i came to the throne, over half of the approximately 600 hundred courts had gone under the jurisdiction of a private lord owing to royal charter, prescriptive right, and usurpation. the sheriff's powers in these hundreds varied. in some, the sheriff had no right of entry. in the manor courts, actions of debt, detinue, and covenant were frequent. sometimes there are questions of a breach of warranty of title in agreements of sale of land. accusations of defamation were frequent; this offense could not be taken to the king's court, but it had been recognized as an offense in the anglo-saxon laws. in some cases, the damages caused are specifically stated. for instance, defamation of a lord's grain would cause other purchasers to forbear buying it. there are frequent cases of ordinary thefts, trespasses, and assaults. the courts did rough but substantial justice without distinction between concepts such as tort and contract. in fact, the action of covenant was the only form of agreement enforceable at common law. it required a writing under seal and awarded damages. their law was not technical, but elastic, and remedies could include injunctions, salary attachment, and performance of acts. the steward holding the manor court was often a lawyer. some pleas in the manors of the abbey of bec were: 1. hugh le pee in mercy (fine, 12d.) for concealing a sheep for half a year. pledges, simon of newmere, john of senholt 2. william ketelburn in mercy (fine, 13s.4d.) for divers trespasses. pledge, henry ketelburn. 3. hugh derwin for pasture, 6d. richard hulle for divers trespasses, 12d. henry stanhard for pasture, 6d. 4. william derwin for a trespass, 6d.; pledge, william sperling. 5. hugh hall gives the lord 12d. that he may have the judgment of the court as to a tenement and two acres of land, which he demands as of right, so he says. and it being asserted that the said land is not free[hold] let the court say its say. and the court says that the tenement and one of the two acres are of servile condition and that the other acre is of free condition. the case is reserved for the lord's presence. pledge, john brian. 6. john palmer is put in seisin of his father's tenement and gives the lord 53s.4d. as entry money. 7. william ketelburn gives the lord 6s.8d. that he may be removed from the office of reeve. pledge, robert serjeant. 8. william frith for subtraction of work, 6d. john reginald for the same, 6d. john of senholt, 12d. william ketelburn, 12d. 9. for the common fine to be paid on s. andrew's day, 100s. 10. it is presented by the chief pledges that godfrey serjeant has made default; also that john le pee has unlawfully thrown up a bank; therefore let it be set to rights. 11. robert smith is put in seisin of his father's tenement and gives the lord four pounds for entry money. pledge, robert serjeant. 12. william ketelburn for a trespass, 13s.4d. 13. william fleming gives four pounds for leave to contract [marriage] with widow susan. pledge, richard serjeant. 14. john mabely gives the lord 3s. to have the judgment of twelve men as to certain land whereof noah deforces him; pledges, richard smith, ralph bernard. the said jurors say that noah the fat has right; therefore etc. 15. agnes stampelove gives the lord 2s. for leave to come and go in the vill but to dwell outside the lord's land. pledge, richard smith. 16. godfrey tailor the younger for a trespass, 2s. 17. whereas godfrey tailor the younger has demanded against noah a farthing land, now the action is compromised in manner following:-godfrey for himself and his heirs remises to the said noah and his heirs all right and claim which he has or can have in the said farthing land by reason of the gift made by his grandfather john tailor. 18. agnes mabely is put in seisin of a farthing land which her mother held, and gives the lord 33s.4d. for entry money. pledges, noah, william askil. 19. the full court declares that in case any woman shall have altogether quitted the lord's domain and shall marry a freeman, she may return and recover whatever right and claim she has in any land; but if she shall be joined to a serf, then she cannot do this during the serf's lifetime, but after his death she may. 20. william alice's son is put in seisin of a bakehouse in the king's street, and shall keep up the house at his own cost and gives 12d. for entry money, and 10s. annual rent payable at three terms, viz. 3s.4d. at martinmas, 3s.4d. at lady day, 3s.4d. at christmas. pledges, adam clerk, john deboneir. 20. john son of alma demands a cottage which henry fleming holds and gives the lord 12d. for the oath and recognition of 12 men; pledge, richard jordan. the jurors say that henry fleming has the better right. 21. baldwin cobbler's son finds [as pledges] walter cobbler, roger of broadwater, robert linene, william frances, that notwithstanding his stay in london he will always make suit with his tithing and will at no time claim any liberty contrary to the lord's will and will come to the lord whenever the lord wills. 22. simon patrick gives the lord 12d. to have the judgment of the court as to a cottage of which the widow of geoffrey dogers deforces him; pledge, simon of strode. the said jurors say that the said simon has the better right. and the said simon remises and quitclaims all his right to his sister maud and her husband john horin, [who] gives the lord 10s. for entry money; pledges, simon patrick, john talk. 23. hugh wiking for not making suit at the lord's mill, 12d. 24. it was presented that william derwin and john derwin (fine, 12d.) committed a trespass against agnes dene, and the cry was raised, therefore etc. 25. hugh churchyard contracted [marriage] without the lord's leave; [fine] 12d. 26. let juliana forester be distrained for her default, also william moor. 27. john kulbel in mercy (fine, 12d.) for not producing gregory miller, and he is commanded to produce him at the next court. 28. hugh andrew's son gives the lord 4s. for leave to marry; pledge, robert serjeant. 29. juliana forester gives the lord 12d. in order that for the future no occasion may be taken against her for neglect of suit of court. 30. john franklain is put in seisin of his father's tenement and gives the lord 20s. for entry; pledge, robert serjeant. 31. henry cross gives the lord 4s. for license to marry; pledge, robert serjeant. 32. isabella warin gives the lord 4s. for leave to give her daughter mary in marriage; pledge, john serjeant. 33. it is presented by the whole township that ralph le war has disseised the lord of a moiety of a hedge, whereas it had often been adjudged by award of the court that the said hedge belongs as to one moiety to the lord and as to the other to ralph, and the said ralph claims and takes to his use the whole to the lord's damage etc. also they say that the said ralph holds overcolkescroft, which land by right is the lord's. 34. it is presented by unanimous verdict of the whole court that if anyone marries a woman who has right in any land according to the custom of the manor and is seised thereof by the will of the lord, and the said woman surrenders her right and her seisin into the hands of the lord and her husband receives that right and seisin from the hands of the lord, in such case the heirs of the woman are for ever barred from the said land and the said right remains to the husband and his heirs. therefore let william wood, whose case falls under this rule, hold his land in manner aforesaid. and for the making of this inquest the said william gives the lord 6s.8d. 35. the tenements of lucy mill are to be seized into the lord's hands because of the adultery which she has committed and the bailiff is to answer for them. the chief pledges present that cristina daughter of richard maleville has married at london without the lord's licence; therefore let the said richard be distrained. he has made fine with 12d. also that alice berde has done the same; therefore let her be distrained. also that robert fountain has committed a trespass against william gery; therefore the said robert is in mercy; pledge, humfrey; fine, 6d. also that richard maleville has drawn blood from stephen gust; therefore he is in mercy; fine, 2s. 36. geoffrey coterel in mercy for a battery; fine, 12d.; pledge, adam serjeant. geoffrey coterel for trespass in the hay; fine, 6d.; pledge, alan reaper. hugh of senholt in mercy for trespass in the green wood; fine, 6d. 37. hugh wiking in mercy for delay in doing his works; fine, 6d. hugh churchyard for trespass in [cutting] thorns; fine, 6d. thomas gold in mercy for trespass in the wood; fine, 3d.; pledge, robert grinder. 38. william dun in mercy for subtraction of his works due in autumn; fine, 2s. avice isaac for the same, 6d.; hugh wiking for the same, 6d.; agnes rede in mercy for her daughter's trespass in the corn [grain], 6d. 39. walter ash in mercy for not making suit to the lord's mill; fine, 6d. hugh pinel in mercy for diverting a watercourse to the nuisance of the neighbors; fine, 6d.; pledge, robert fresel. 40. john dun in mercy for carrying off corn [grain] in the autumn; pledge, adam white. alan reaper gives the lord 12d. on account of a sheep which was lost while in his custody. 41. adam white in mercy for bad mowing; fine, 6d. hugh harding in mercy for the same; fine, 6d. 42. the chief pledges present that henry blackstone (fine, 6d.), hugh churchyard (fine, 18d.), walter ash (fine, 6d.), henry of locksbarow (fine, 12d.), avice isaac (fine, 6d.), richard matthew (fine, 6d.), hugh wiking (fine,--), ralph dene (fine, 6d.), john palmer (fine, 12d.), john coterel (fine, 6d.), john moor (fine, 6d.), john cubbel (fine, 12d.), hugh andrew (fine, 6d.), philip chapman (fine, 6d.), john fellow (fine, 12d.), robert bailiff (fine, 6d.), alice squire (fine, 12d.), john grately (fine,--), richard hull (fine, 6d.), osbert reaper (fine, 6d.), and robert cross (fine, 6d.), have broken the assize of beer. also that henry of senholt, henry brown, hugh hayward, richard moor, juliana woodward, alice harding, peronel street, eleanor mead make default. also that walter ash (fine,--), john wiking (fine,--), john smart (fine,--), and henry coterel have married themselves without the lord's licence; therefore let them be distrained to do the will of the lord. 43. alan reaper for the trespass of his foal; fine, 6d. 44. philip chapman in mercy for refusing his gage to the lord's bailiff; fine, 3d. 45. william ash in mercy for trespass in the growing crop; fine, 6d. 46. john iremonger in mercy for contempt; fine, 6d. 47. the chief pledges present that william of ripley (fine, 6d.), walter smith (no goods), maud of pasmere (fine, 6d.), have received [strangers] contrary to the assize; therefore they are in mercy. 48. maud widow of reginald of challow has sufficiently proved that a certain sheep valued at 8d. is hers, and binds herself to restore it or its price in case it shall be demanded from her within year and day; pledges, john iremonger and john robertd; and she gives the lord 3d. for [his] custody [of it]. the court of hustings in london is empowered to award landlords their tenements for which rent or services are in arrears if the landlord could not distrain enough tenant possessions to cover the arrearages. wills are proven in the court of husting, the oldest court in london, which went back to the times of edward the confessor. one such proven will is: "tour (john de la) to robert his eldest son his capital messuage and wharf in the parish of berchingechurch near the land called 'berewardesland`. to agnes his wife his house called 'wyvelattestone', together with rents, reversions, etc. in the parish of s. dunstan towards the tower, for life; remainder to stephen his son. to peter and edmund his sons lands and rents in the parish of all hallows de berhyngechurch; remainders over in default of heirs. to agnes, wife of john le keu, fishmonger, a house situate in the same parish of berhyng, at a peppercorn [nominal] rent." the court of the mayor of london heard diverse cases, including disputes over goods, faulty or substandard goods, adulteration, selling food unfit for human consumption, enhancing the price of goods, using unlawful weighing beams, debts, theft, distraints, forgery, tavern brawling, bullying, and gambling. insulting or assaulting a city dignitary was a very serious crime; an attack on the mayor was once capitally punished. sacrilege, rape, and burglary were punished by death. apart from the death penalty, the punishment meted out the most was public exposure in the pillory, with some mark of ignominy slung round the neck. if the crime was selling bad food, it was burnt under the offender's nose. if it was sour wine, the offender was drenched in it. standing in the pillory for even one hour was very humiliating, and by the end of the day, it was known throughout the city. the offender's reputation was ruined. some men died in the pillory of shame and distress. a variation of the pillory was being dragged through the streets on a hurdle. prostitutes were carted through the streets in coarse rough cloth hoods, with penitential crosses in their hands. scolds were exposed in a "thewe" for women. in more serious cases, imprisonment for up to a year was added to the pillory. mutilation was rare, but there are cases of men losing their right hands for rescuing prisoners. the death penalty was usually by hanging. the following four london cases pertain to customs, bad grain, surgery, and apprenticeship, respectively. "john le paumer was summoned to answer richer de refham, sheriff, in a plea that, whereas the defendant and his society of bermen [carriers] in the city were sworn not to carry any wine, by land or water, for the use of citizens or others, without the sheriff's mark, nor lead nor cause it to be led, whereby the sheriff might be defrauded of his customs, nevertheless he caused four casks of wine belonging to ralph le mazun of westminster to be carried from the city of westminster without the sheriff's mark, thus defrauding the latter of his customs in contempt of the king etc. the defendant acknowledged the trespass. judgment that he remain in the custody of the sheriff till he satisfy the king and the court for offense." "walter atte belhaus, william atte belhous, robert le barber dwelling at ewelleshalle, john de lewes, gilbert le gras, john his son, roger le mortimer, william ballard atte hole, peter de sheperton, john brun and the wife of thomas the pelterer, stephen de haddeham, william de goryngg, margery de frydaiestrate, mariot, who dwells in the house of william de harwe, and william de hendone were attached to answer for forestalling all kinds of grain and exposing it, together with putrid grain, on the pavement, for sale by the bushel, through their men and women servants; and for buying their own grain from their own servants in deception of the people. the defendants denied that they were guilty and put themselves on their country. a jury of richard de hockeleye and others brought in a verdict of guilty, and the defendants were committed to prison till the next parliament." "peter the surgeon acknowledged himself bound to ralph de mortimer, by richard atte hill his attorney, in the sum of 20s., payable at certain terms, the said ralph undertaking to give peter a letter of acquittance [release from a debt]. this recognizance arose out of a covenant between them with regard to the effecting of a cure. both were amerced for coming to an agreement out of court. a precept was issued to summon all the surgeons of the city for friday, that an inquiry might be made as to whether the above peter was fitted to enjoy the profession of a surgeon." "thomas de kydemenstre, shoemaker, was summoned to answer william de beverlee, because he did not clothe, feed and instruct his apprentice thomas, william's son, but drove him away. the defendant said that the apprentice lent his master's goods to others and promised to restore them or their value, but went away against his wish; and he demanded a jury. subsequently, a jury of william de upton and others said the apprentice lent two pairs of shoes belonging to his master and was told to restore them, but, frightened by the beating which he received, ran away; further that the master did not feed and clothe his apprentice as he ought, being unable to do so, to the apprentice's damage 40d., but that he was now in a position to look after his apprentice. thereupon thomas de kydemenstre said he was willing to have the apprentice back and provide for him, and the father agreed. judgment that the master take back the apprentice and feed and instruct him, or that he repay to the father, the money paid to the latter, and that he pay the father the 40d. and be in mercy." a professional class of temporal attorneys whose business it is to appear on behalf of litigants is prominent in the nation. attorneys are now drawn from the knightly class of landed gentlemen, instead of ecclesiastical orders. since it was forbidden for ecclesiastics to act as advocates in the secular courts, those who left the clergy to become advocates adopted a close-fitting cap to hide their tonsures, which came to be called a "coif". the great litigation of the nation is conducted by a small group of men, as is indicated by the earliest year books of case decisions. they sit in court and will sometimes intervene as amicus curiae [friends of the court]. parliament refers difficult points of law to them as well as to the justices. these reports became so authoritative that they could be cited in the courts as precedent. groups of attorneys from the countryside who are appearing in london courts during term-time and living in temporary lodgings start to form guild-like fellowships and buy property where they dine and reside together, called the inns of court. they begin to think of themselves as belonging to a profession, with a feeling of responsibility for training the novices who sat in court to learn court procedures and attorney techniques. they invited these students to supper at the inns of court for the purpose of arguing about the day's cases. the inns of court evolved a scheme of legal education, which was oral and used disputations. thus they became educational institutions as well as clubs for practicing attorneys. the call to the bar of an inn was in effect a degree. to be an attorney one had to be educated and certified at the inns of court. they practice law full time. some are employed by the king. justices come to be recruited from among those who had passed their lives practicing law in court, instead of from the ecclesiastical orders. all attorneys were brought under the control of the justices. there are two types of attorney: one attorney appears in the place of his principal, who does not appear. the appointment of this attorney is an unusual and a solemn thing, only to be allowed on special grounds and with the proper formalities. for instance, a poor person may not be able to afford to travel to attend the royal court in person. the other one is the pleader-attorney, who accompanies his client to court and advocates his position with his knowledge of the law and his persuasiveness. in 1280, the city of london made regulations for the admission of both types of attorneys to practice before the civic courts, and for their due control. in 1292 the king directed the justices to provide a certain number of attorneys and apprentices to follow the court, who should have the exclusive right of practicing before it. this begins the process which will make the attorney for legal business an "officer of the court" which has appointed him. chapter 9 the times: 1348-1399 waves of the black death, named for the black spots on the body, swept over the nation. the black blotches were caused by extensive internal bleeding. the plague was carried in the blood of black rats and transmitted to humans by the bite of the rat flea, but this cause was unknown. the first wave of this plague, in 1348, lasted for three years and desolated the nation by about one half the population in the towns and one third in the country. people tried to avoid the plague by flight. the agony and death of so many good people caused some to question their belief in god. also, it was hard to understand why priests who fled were less likely to die than priests who stayed with the dying to give them the last rites. legal and judicial, as well as other public business, ceased for two years, interrupted by the plague. thus begins a long period of disorganization, unrest, and social instability. customary ways were so upset that authority and tradition were no longer automatically accepted. fields lay waste and sheep and cattle wandered over the countryside. local courts could seldom be held. some monasteries in need of cash sold annuities to be paid in the form of food, drink, clothing, and lodging during the annuitant's life, and sometimes that of his widow also. guilds and rich men made contributions to the poor and ships with provisions were sent to various parts of the country for the relief of starving people. in london, many tradesmen and artisans formed parish fraternities which united people of all social levels and women on almost equal terms with men, in communal devotion and mutual support, such as help in resolving disputes, moral guidance, money when needed, and burial and masses. farm workers were so rare that they were able to demand wages at double or triple the pre-plague rate. the pre-plague had been 4-6d. daily for masons, carpenters, plasterers, and tilers and 3d. for their laborers. these laborers could buy 12 cheap loaves, 3 gallons of ale, and a gallon of cheap wine or half a pair of shoes. prices did not go up nearly as much as wages. villeins relinquish their tenements, and deserted their manors, to get better wages elsewhere. they became nomadic, roaming from place to place, seeking day work for good wages where they could get it, and resorting to thievery on the highways or beggary where they could not. the robin hood legends were popular among them. in them, robin hood is pure outlaw and does not contribute money to the poor. nor does he court maid marion. they spread political songs among each other, such as: "to seek silver to the king, i my seed sold; wherefore my land lieth fallow and learneth to sleep. since they fetched my fair cattle in my fold; when i think of my old wealth, well nigh i weep. thus breedeth many beggars bold; and there wakeneth in the world dismay and woe, for as good is death anon as so for to toil." groups of armed men took lands, manors, goods, and women by force. the villeins agreed to assist each other in resisting by force their lords' efforts to return them to servitude. a statute of laborers passed in 1351 for wages to be set at the pre-plague rates was ineffectual. justices became afraid to administer the law. villeins, free peasants, and craftsmen joined together and learned to use the tactics of association and strikes against their employers. the office of justice of the peace was created for every county to deal with rioting and vagrants. cooperation by officials of other counties was mandated to deal with fugitives from its justice. the black death visited again in 1361 and in 1369. the black death reduced the population from about 5 million to about 2 1/2 million. it was to rise to about 4 million by 1600. when there were attempts to enforce the legal servitude of the villeins, they spread rhymes of their condition and need to revolt. a secret league, called the "great society" linked the centers of intrigue. a high poll tax, graduated from 20s. to 12d., that was to be raised for a war with france, touched off a spontaneous riot all over the nation in 1381. this tax included people not taxed before, such as laborers, the village smith, and the village tiler. each area had its own specific grievances. there was no common political motive, except maladministration in general. in this peasants' revolt, mobs overran the counties around london. the upper classes fled to the woods. written records of the servitude of villeins were burned in their halls, which were also looted. title deeds of landlords were burned. rate rolls of general taxation were destroyed. prisoners were released from gaols. men connected with tax collection, law enforcement, attorneys, and alien merchants were beheaded. the chief justice was murdered while fleeing. the archbishop, who was a notoriously exploitive landlord, the chancellor, and the treasurer were murdered. severed heads were posted on london bridge. a mob took control of the king's empty bedchamber in the tower. the villeins demanded that service to a lord be by agreement instead of by servitude, a commutation of villein service for rents of a maximum of 4d. per acre yearly, abolition of a lord's right for their work on demand (e.g. just before a hail storm so only his crops were saved), and the right to hunt and fish. the sokemen protested having to use the lord's mill and having to attend his court. the revolt was suppressed and its leaders punished. the king issued proclamations forbidding unauthorized gatherings and ordering tenants of land to perform their customary services. the poll tax was dropped. for the future, the duty to deal with rioting and vagrants was given to royal justices, sheriffs, mayors, bailiffs, and constables as well as the justices of the peace. there was a high peace in each hundred and a petty constable in each parish. justices of the peace could swear in neighbors as unpaid special constables when disorder broke out. the sheriff was responsible for seeing that men of the lower classes were organized into groups of ten for police and surety purposes, and for holding of hundred and county courts, arresting suspects, guarding prisoners awaiting trial, carrying out the penalties adjudged by the courts, and collecting crown revenue through his bailiffs. royal writs were addressed to the sheriff. because many sheriffs had taken fines and ransoms for their own use, a term limit of one year was imposed. sheriffs, hundreders, and bailiffs had to have lands in the same counties or bailiwicks [so they could be held answerable to the king]. efforts were made to keep laborers at the plough and cart rather than learn a craft or entering and being educated by the church. the new colleges at the universities ceased to accept villeins as students. due to the shortage of labor, landlords' returns had decreased from about 20% to about 5%. but some found new methods of using land that were more profitable than the customary services of villeins who had holdings of land or the paid labor of practically free men who paid a money rent for land holdings. one method was to turn the land to sheep breeding. others leased their demesne land, which transferred the burden of getting laborers from the landlord to the lessee-tenant. the payment was called a "farm" and the tenant a "farmer". first, there were stock-and-land leases, in which both the land and everything required to cultivate it were let together. after 50 years, when the farmers had acquired assets, there were pure land leases. landlords preferred to lease their land at will instead of for a term of years to prevent the tenant from depleting the soil with a few richer crops during the last years of his tenancy. the commutation of labor services into a money payment developed into a general commutation of virtually all services. lords in need of money gladly sold manumissions to their villeins. the lord and lady of some manors now ate with their family and entertained guests in a private parlor [from french word 'to speak"] or great chamber, where they could converse and which had its own fireplace. the great chamber was usually at the dais end of the great hall. the great hall had been too noisy for conversation and now was little used. there were also separate chambers or bed-sitting rooms for guests or members the family or household, in which one slept, received visitors, played games, and occasionally ate. some farmers achieved enough wealth to employ others as laborers on their farms. the laborers lived with their employer in his barn, sleeping on hay in the loft, or in mud huts outside the barn. the farmer's family lived at one end of the barn around an open fire. their possessions typically were: livestock, a chest, a trestle table, benches, stools, an iron or bronze cauldron and pots, brooms, wooden platters, wooden bowls, spoons, knives, wooden or leather jugs, a salt box, straw mattresses, wool blankets, linen towels, iron tools, and rush candles [used the pith of a rush reed for the wick]. those who could not afford rush candles could get a dim light by using a little grease in a shallow container, with a few twisted strands of linen thread afloat in it. the peasants ate dark bread and beans and drank water from springs. milk and cheese were a luxury for them. those who could not afford bread instead ate oat cakes made of pounded beans and bran, cheese, and cabbage. they also had leeks, onions, and peas as vegetables. some farmers could afford to have a wooden four-posted bedstead, hens, geese, pigs, a couple of cows, a couple of sheep, or two-plough oxen. july was the month when the divide between rich and poor became most apparent. the rich could survive on the contents of their barns, but the poor tried to survive by grinding up the coarsest of wheat bran and shriveled peas and beans to make some sort of bread. grain and bread prices soared during july. farming still occupied the vast majority of the population. town inhabitants and university students went into the fields to help with the harvest in the summer. parliament was suspended during the harvest. town people had more wealth than country people. most townspeople slept in nightgowns and nightcaps in beds with mattresses, blankets, linen sheets, and pillows. beds were made every morning. bathing was by sponging hot water from a basin over the body, sometimes with herbs in it, rinsing with a splash of warm water, and drying off with a towel. tubs used only for baths came into use. there were drapery rugs hung around beds, handheld mirrors of glass, and salt cellars. the first meal of the day was a light breakfast, which broke the fast that had lasted the night. meals were often prepared according to recipes from cook books which involved several preparation procedures using flour, eggs, sugar, cheese, and grated bread, rather than just simple seasoning. menus were put together with foods that tasted well together and served on plates in several courses. sheffield cutlery was world famous. table manners included not making sounds when eating, not playing with one's spoon or knife, not placing one's elbows on the table, keeping one's mouth clean with a napkin, and not being boisterous. there were courtesies such as saying "good morning" when meeting someone and not pointing one's finger at another person. king richard ii invented the handkerchief for sneezing and blowing one's nose. there were books on etiquette. cats were the object of superstition, but there was an ancient and honorable order of the men who stroke cats. new burgesses were recruited locally, usually from within a 20 mile radius of town. most of the freemen of the larger boroughs, like canterbury and london, came from smaller boroughs. an incoming burgess was required to buy his right to trade either by way of a seven year apprenticeship or by payment of an entry fee. to qualify, he needed both a skill and social respectability. towns started acquiring from the king the right to vacant sites and other waste places, which previously was the lord's right. the perpetuality of towns was recognized by statutes of 1391, which compared town-held property to church-held property. the right of london to pass ordinances was confirmed by charter. some towns had a town clerk, who was chief of full-time salaried officers. there was a guildhall to maintain, a weigh-house, prison, and other public buildings, municipal water supplies, wharves, cranes, quays, wash-houses, and public lavatories. after the experience of the black death, some sanitary measures were taken. the notorious offenders in matters of public hygiene in the towns, such as the butchers, the fishmongers, and the leather tanners were assigned specific localities where their trades would do least harm. the smiths and potters were excluded from the more densely populated areas because they were fire risks. in the town of salisbury, there was butcher row, ox row, fish row, ironmongers' row, wheelwrights' row, smiths' row, pot row, silver street, cheese market, and wool market. for water, most communities depended on rivers that ran near by or on public wells that were dug to reach the water underground. some towns had water public water supply systems. fresh water was brought into the town from a spring or pond above the town by wood or lead pipes or open conduits. sometimes tree trunks were hollowed out and tapered at the ends to fit into the funnel-shaped end of another. but they leaked a lot. in london, a conduit piped water underground to a lead tank, from which it was delivered to the public by means of pipes and brass taps in the stone framework. this was london's chief water supply. water carriers carried water in wooden devices on their backs to houses. the paving and proper drainage of the streets became a town concern. building contracts began specifying the provision of adequate cesspits for the privies at town houses, whether the latrines were built into the house or as an outhouse. also, in the better houses, there grew a practice of carting human and animal fecal matter at night to dung heaps outside the city walls. there was one public latrine in each ward and about twelve dung carts for the whole city. country manor houses had latrines on the ground floor and/or the basement level. stairwells between floors had narrow and winding steps. in london, the goldsmiths, merchant taylors [tailors], skinners, and girdlers bought royal charters, which recognized their power of self-government as a company and their power to enforce their standards, perhaps throughout the country. the goldsmiths, the mercers, and the saddlers became the first guilds to receive, in 1394-5, charters of incorporation, which gave them perpetual existence. as such they could hold land in "mortmain" [dead hand], thus depriving the king of rights that came to him on the death of a tenant-in-chief. they were authorized to bestow livery on their members and were called livery companies. the liverymen [freemen] of the trading companies elected london's representatives to parliament. in all towns, the organization of craft associations spread rapidly downwards through the trades and sought self-government. craft guilds were gaining much power relative to the old merchant guilds in governing the towns. the greater crafts such as the fishmongers, skinners, and the corders (made rope, canvas, and pitch) organized and ultimately were recognized by town authorities as self-governing craft guilds. the building trade guilds such as the tilers, carpenters, masons, and joiners, became important. masons were still itinerant, going to sites of churches, public buildings, or commanded by the king to work on castles. the guild was not necessarily associated with a specific product. for instance, a saddle and bridle were the result of work of four crafts: joiner (woodworker), painter, saddler (leather), and lorimer (metal trappings). in london in 1392 craft guilds included: baker, fishmonger (cut up and sold fish), fruitier, brewer, butcher, bird dealer, cook, apothecary (sold potions he had ground up), cutler (made knives and spoons), barber, tailor, shoemaker, glover (made gloves), skinner (sold furs), girdler (made girdles of cloth to wear around one's waist), pouchmaker, armorer, sheathmaker, weaver, fuller, painter, carpenter, joiner (woodworker who finished interior woodwork such as doors and made furniture), tiler, mason (cut stone for buildings), smith (made metal tools for stonemasons and builders), tallow chandler (made candles and sometimes soap from the fat and grease the housewife supplied), wax chandler (made candles), stirrup maker, spurrier (made spurs), and hosteler (innkeeper). however, the merchant guilds of the goldsmiths, vintners (sold wine), mercers (sold cloth), grocers, and drapers (finished and sold english cloth) were still strong. it was a long custom in london that freemen in one company could practice the trade of another company. there were paint mills and saw mills replacing human labor. there were apothecary shops and women surgeons. women who earned their own living by spinning were called "spinsters". some prices in london were: a hen pastry 5d., a capon pastry 8d., a roast pheasant 13d., a roast heron 18d., roast goose 7d., a hen 4d., a capon 6d., three roast thrushes 2d., ten larks 3d., ten finches 1d, and ten cooked eggs 1d. many of the guilds bought sites on which they built a chapel, which was later used as a secular meeting place. the guild officers commonly included an alderman, stewards, a dean, and a clerk, who were elected. the guild officers sat as a guild court to determine discipline for offenses such as false weights or measures or false workmanship or work and decided trade disputes. the brethren in guild fraternity were classified as masters, journeymen, or apprentices. they were expected to contribute to the support of the sick and impoverished in their fellowship. their code required social action such as ostracizing a man of the craft who was living in adultery until he mended his ways. the rules of the company of glovers were: 1. none but a freeman of the city shall make or sell gloves. 2. no glover may be admitted to the freedom of the city unless with the assent of the wardens of the trade. 3. no one shall entice away the servant of another. 4. if a servant in the trade makes away with his master's chattels to the value of 12d., the wardens shall make good the loss; and if the servant refuses to be judged by the wardens, he shall be taken before the mayor and aldermen. 5. no one may sell his goods by candlelight. 6. any false work found shall be taken before the mayor and aldermen by the wardens. 7. all things touching the trade within the city between those who are not freemen shall be forfeited. 8. journeymen shall be paid their present rate of wages. 9. persons who entice away journeymen glovers to make gloves in their own houses shall be brought before the mayor and aldermen. 10. any one of the trade who refuses to obey these regulations shall be brought before the mayor and aldermen. cordwainers [workers in soft cordovan leather from spain, especially shoes] of good repute petitioned the city of london in 1375 for ordinances on their trade as follows: "to the mayor and aldermen of the city of london pray the good folks of the trade of cordwainers of the same city, that it may please you to grant unto them the articles that follow, for the profit of the common people; that so, what is good and right may be done unto all manner of folks, for saving the honor of the city and lawfully governing the said trade. in the first place that if any one of the trade shall sell to any person shoes of bazen [sheepskin tanned in oak or larch-bark] as being cordwain, or of calf-leather for ox-leather, in deceit of the common people, and to the scandal of the trade, he shall pay to the chamber of the guildhall, the first time that he shall be convicted thereof, forty pence; the second time, 7s. half a mark; and the third time the same, and further, at the discretion of the mayor and aldermen. also that no one of the trade shall keep house within the franchise if he be not free [invested with the rights or privileges] of the city and one knowing his trade, and that no one shall be admitted to the freedom without the presence of the wardens of the trade bearing witness to his standing, on the pain aforesaid. also if any one of the trade shall be found offending touching the trade, or rebellious against the wardens thereof, such person shall not make complaint to any one of another trade, by reason of the discord or dissension that may have arisen between them; but he shall be ruled by the good folks of his own trade. and if he shall differ from them as acting against right, then let the offense be adjudged upon before the mayor and aldermen; and if he be found rebellious against the ordinance, let him pay to the chamber the sum above mentioned. also that no one of the trade shall entice or purloin the servant of another from the service of his master by paying him more than is ordained by the trade, on the pain aforesaid. also that no one shall carry out of his house any wares connected with his trade for sale in market or elsewhere except only at a certain place situated between soperesland and the conduit; and that at a certain time of the day, that is to say, between prime [the first hour of the day] and noon. and that no shoes shall exceed the measure of seven inches, so that the wares may be surveyed by the good folks of the trade, because of the deceit upon the common people that might ensue and the scandal of the trade, on the pain aforesaid. also that no one shall expose his wares openly for sale in market on sundays at any place, but only within his own dwelling to serve the common people, on the pain aforesaid. also that if any one sells old shoes, he shall not mix new shoes among the old in deceit of the common people and to the scandal of the trade, on the pain aforesaid." smithfield was a field outside the city gates at which horses were sold and raced. in 1372, the horse dealers and drovers petitioned for a tax on animals sold there to pay for cleaning the field. the city ordinance reads as follows: "on wednesday next after the feast of st. margaret the virgin came reputable men, the horse dealers and drovers, and delivered unto the mayor and aldermen a certain petition in these words: 'to the mayor, recorder, and aldermen show the dealers of smithfield, that is to say, the coursers and drovers, that for the amendment of the said field they have granted and assented among them that for the term of three years next ensuing after the date of this petition for every horse sold in the said field there shall be paid one penny, for every ox and cow one halfpenny, for every eight sheep one penny, and for every swine one penny by the seller and the same by the purchaser who buys the same for resale.` afterwards, on the eleventh day of august in the same year, adam fernham, keeper of the gaol at newgate, hugh, averelle, bailiff of smithfield, and william godhewe, weaver, were chosen and sworn faithfully to collect and receive the said pennies in form aforesaid and to clean the field of smithfield from time to time during such term of three years when necessary." many london houses were being made from stone and timber and even brick and timber, instead of just timber and mud. however, chimneys were still a luxury of the rich. they were made of stone, tile, or plaster. there were windows of glass and a guild of glaziers was chartered by the king. a typical merchant's house had a cellar; a ground floor with a shop and storage space; a first floor with a parlor to receive guests, a spacious hall for dining, and perhaps a kitchen; and at the top, a large family bedroom and a servant's room. many single-roomed houses added a second-floor room for sleeping, which was approached by a wooden or stone staircase from the outside. their goods were displayed on a booth outside the door of the house or hung in the windows. they were stored at night in the cellar. over the booths swung huge signs, which had to be nine feet above street level to allow a man on horseback to ride underneath. there were no sidewalks. street repair work for wages was supervised by a stone master. the streets sloped down from the middle so that the filth of the streets would run down the sides of the road. there were many wood chips in the streets due to cutting up of firewood before taking it indoors. people often threw the rubbish from their houses onto the street although they were supposed to cart it outside the city walls and to clean the frontage of their houses once a week. dustmen scavenged through the rubbish on the streets. pigs and geese were not longer allowed to run at large in the streets, but had to be fed at home. there were other city rules on building, public order, the use of fountains, precautions against fire, trading rights in various districts, closing time of taverns, and when refuse could be thrown into the streets, e.g. nighttime. aldermen were constantly making rounds to test measures and weights, wine cups, the height of tavern signs, and the mesh of the fishing nets, which had to be at least two inches wide. they saw that the taverns were shut when curfew was rung and arrested anyone on the street after curfew who had a weapon, for no one with a sword was allowed on the streets unless he was some great lord or other substantial person of good reputation. wards provided citizens to guard the gates in their respective neighborhood and keep its key. the city was so dense that nuisance was a common action brought in court, for instance, vegetable vendors near a church obstructing passageway on the street or plumbers melting their solder with a lower than usual shaft of the furnace so smoke was inhaled by people nearby. crime in london was rare. murder, burglary, highway robbery, and gross theft were punishable by hanging. forgery, fraud, was punishable by the placement in the pillory or stocks or by imprisonment. perjury was punished by confession from a high stool for the first offense, and the pillory for the second. slander and telling lies were punished by the pillory and wearing a whetstone around one's neck. there was an ordinance passed against prostitutes in 1351. london as well as other port towns had not only prostitutes, but syphilis. prominent londoners sought to elevate their social position by having their family marry into rural landholders of position. for poor boys with talent, the main routes for advancement were the church, the law, and positions in great households. many master freemasons, who carved freestone or finely grained sandstone and limestone artistically with mallet and chisel, left the country for better wages after their wages were fixed by statute. the curvilinear gothic style of architecture was replaced by the perpendicular style, which was simpler and cheaper to build. church steeples now had clocks on them with dials and hands to supplement the church bell ringing on the hour. alabaster was often used for sepulchral monuments instead of metal or stone. with it, closer portraiture could be achieved. in the 1300s and 1400s the london population suffered from tuberculosis, typhus, influenza, leprosy, dysentery, smallpox, diphtheria, measles, heart disease, fevers, coughs, cramps, catarrhs and cataracts, scabs, boils, tumors, and "burning agues". there were also many deaths by fires, burning by candles near straw beds when drunk, falling downstairs when drunk, and drowning in the river or wells. children were often crushed by carts, trampled by horses, or mauled by pigs. towns recognized surgery as a livelihood subject to admission and oath to serve the social good. master surgeons were admitted to practice in 1369 in london in full husting before the mayor and the aldermen and swore to: faithfully serve the people in undertaking their cures, take reasonably from them, faithfully follow their calling, present to the said mayor and aldermen the defaults of others undertaking, so often as should be necessary; to be ready, at all times when they should be warned, to attend the maimed or wounded and others, to give truthful information to the officers of the city as to such maimed, wounded, or others whether they be in peril of death or not, and to faithfully do all other things touching their calling. some young girls of good families were boarded at nunneries to be taught there. some upper class widows retired there. only women were allowed to be present at a birth, at which they spread the knowledge of midwifery. as usual, many women died giving birth. various ways to prevent pregnancy were tried. it was believed that a baby grew from a seed of the father planted in the woman's body. infant mortality was especially high in boroughs and burgess family lines usually died out. a three-generation family span was exceptional in the towns, despite family wealth. children's sweets included gingerbread and peppermint drops. after the plague, gentlemen no longer had their children learn to speak norman. the grammar schools taught in english instead of norman as of 1362. bishops began to preach in english. english became the official language of parliament, in 1363, and the courts, replacing norman and latin. a will in 1389 in which a wealthy citizen arranges for one son to become a attorney and the other a merchant: "will of william de tonge, citizen of london: one hundred marks [1,333s.] each to my two sons. and i will that my said two sons shall live upon the profits of the money bequeathed to them above until the age of twenty years. and if my said two sons be well learned in grammar and adorned with good manners, which shall be known at the end of twenty years, and the elder son wish to practice common law, and if it is known that he would spend his time well in that faculty, i will that over and above the profit of the said one hundred marks he shall have yearly from my rents for the term of seven years five marks [67s.]. and if he should waste his time aforesaid, or if he should marry foolishly and unsuitably, i will that he receive nothing more of the said five marks. and if younger son wishes to attend the university of oxford or to establish himself well in the mystery of a merchant after the age of twenty years, and [if] there be knowledge of his praiseworthy progress in his faculty or his carefulness in trading ... i will that he shall receive five marks yearly in the manner described above for his maintenance, over and above the profit of the said one hundred marks to him bequeathed, for the space of seven years; and if he behave himself otherwise, i will that thereupon he be excluded from the said five marks. and in case the said bequest of 200 marks [2,667s.] to him and his brother shall be annulled so that he shall have nothing therefrom ... then the said 200 marks shall be spent upon all the yearly chaplains who can be had to celebrate divine service in the church of all hallows for my soul." england was still an agricultural rather than a manufacturing country. imported were cloth, silks, linen, velvets, furs, glass, wines, candles, millstones, amber, iron, and mercury. exported were wool, leather, lead, tin, and alabaster for sculpturing. merchant adventurers came to manufacture cloth good enough for export and began to buy up raw wool in such quantity that its export declined. they took their cloth abroad to sell, personally or by agents. an oxford theologian and preacher, john wyclif, voiced the popular resentment of the materialism of the church, benefit of clergy, immorality of priests, and the selling of indulgences and pardons. encouraged by the king, he argued against the supremacy of the papal law over the king's courts and against payments to the papacy. he opined that the church had no power to excommunicate. the friars had become mere beggars and the church was still wealthy. he proposed that all goods should be held in common by the righteous and that the church should hold no property but be entirely spiritual. he believed that people should rely on their individual consciences. he thought that the bible should be available to people who could read english so that the people could have a direct access to god without priests or the pope. towards this end, he translated it from latin into english in 1384. his preachers spread his views throughout the country. the church then possessed about one-third of the land of the nation. william of ockham, an englishman educated at oxford and teaching theology in paris, taught that the primary form of knowledge came from experience gained through the senses and that god might cause a person to think that he has intuitive knowledge of an existent object when there is in fact no such object. most great lords were literate. many stories described good men, who set an example to be followed, and bad men, whose habits were to be avoided. stories were written about pilgrimage vacations of ordinary people to religious sites in england. will langland's poem "the vision of william concerning piers plowman" portrays a pilgrimage of common people to the shrine of truth led by a virtuous laborer. mystics wrote practical advice with transcendental teaching, for instance "scale of perfection" attributed to walter hilton and "cloud of unknowing". richard rolle wrote about spiritual matters, probably the "prick of conscience". richard de bury wrote "philobiblon" about book lovers. jean froissart wrote the "chronicles" on knights. courtly ideals were expressed in "sir gawaine and the grene knyght", wherein the adventures of the hero, an arthur knight, are allegorical in the struggle against the world, the flesh, and the devil (1370). "pearl" eulogized all that is pure and innocent on the event of the death of a two year old child. geoffrey chaucer was a squire and diplomat of the king. his "tales of the canterbury pilgrims" portrayed characters of every social class, including the knight with his squire, abbot, prioress, nun, priest, monk, friar, poor parson of the country, summoner (who enforced the jurisdiction and levied the dues of the church courts), pardoner (sold pardons from the pope), scholar, attorney, doctor, merchant, sailor, franklin, yeoman, haberdasher, tapestrymaker, ploughman, cook, weaver, dyer, upholsterer, miller, reeve, carpenter. there were chaucer stories about a beautiful and virtuous wife disliked by her mother-in-law, the difficulty of marriage between people of different religions, the hatred of a poor person by his brother and his neighbor, rich merchants who visited other kingdoms, the importance of a man himself following the rules he sets for other people's behavior, the spite of a man for a woman who rejected him, the relative lack of enthusiasm of a wife for sex as compared to her husband, a mother giving up her own comfort for that of her child, the revenge killing of a murderer by the dead man's friends, the joy of seeing a loved one after years of separation, that life is more sad than happy, that lost money can be retrieved, but time lost is lost forever. other stories in the canterbury tales were about two men who did not remain friends after they fell in love with the same woman, about a child who preferred to learn from an older child than from his schoolteacher, about a wife who convinced her husband not to avenge her beating for the sake of peace, about a man who woke up from bad dreams full of fear, about a man wanting to marry a beautiful woman but later realizing a plain wife would not be pursued by other men, about a man who drank so much wine that he lost his mental and physical powers, about a woman who married for money instead of love, about a man who said something in frustration which he didn't mean, about a person brought up in poverty who endured adversity better than one brought up in wealth, about a wife who was loving and wise, about a good marriage being more valuable than money, about a virgin who committed suicide rather than be raped, about a wife persuaded to adultery by a man who said he would otherwise kill himself, about three men who found a pile of gold and murdered each other to take it all, about an angry man who wanted to kill, about a malicious man who had joy in seeing other men in trouble and misfortune, about a man whose face turned red in shame, about a wife expecting to have half of what her husband owned. paper supplemented parchment, so there were more books. political songs and poems were written about the evil times of king edward ii, the military triumphs of king edward iii, and the complaints of the poor against their oppressors, such as "song of the husbandman". john gower wrote moralizing poems on the villein's revolt, the sins of the clergy and attorneys, and the bad rule of king richard ii, who in 1377 succeeded edward iii. robin hood ballads were popular. the minstrel, who was a honorable person, replaced the troubadour of older times. there were many colleges at oxford and cambridge due to the prohibition of gifts to the church. laymen instead of ecclesiastics were appointed as chancellor. the masters at oxford got rid of ecclesiastical supervision by a bishop and archdeacon by 1368. one could be admitted as a student at age thirteen. the rate of maintenance for a student was 10d. weekly. a bachelor of arts degree was granted after four years of study and an oral exam. required reading in 1340 for the bachelor's degree was the new logic of aristotle ("prior and posterior analytics" e.g. on syllogistic logic and deduction, the "topics", or the "sophistical refutations", e.g. logical fallacies such as from 'all a are b' to 'all b are a'), and a selection from these aristotle works on physics: "of heaven and earth", "on the soul", "of meteors", "of birth and decay", or "of feeling and what is felt" with "of memory and recollection" and "of sleep and waking", or "of the movement of animals" with "of minor points in natural history". a master of arts degree could be awarded after three more years of study and teaching. a doctorate degrees in theology required ten more years of study. a doctorate in civil or canon law required eight more years. a man with a degree in canon law who wanted to practice in a certain bishop's court had to first satisfy this bishop of his competence. another source of legal learning was in london, where the guilds gave rise to the inns of court. they used the register of writs, the case law of the year books, and disputation to teach their students. for a doctorate in medicine from oxford or cambridge, five more years plus two years of practice were required. surgery was not taught because it was considered manual labor, and there was some feeling that it was a sacrilege and dishonorable. urinalysis and pulse beat were used for diagnosis. epilepsy and apoplexy were understood as spasms inside the head. it was known what substances served as laxatives and diuretics. teeth were extracted, eye cataracts were removed with a silver needle, and skin from the arm was grafted onto a mutilated face. englishmen who had collected books on philosophy, medicine, astronomy, and history and literature books from the continent gave their collections to the universities, which started their libraries. marco polo's discoveries on his journey to china were known. the requirements of elementary and higher studies were adjusted in 1393 and began the public school system. william of wykeham's school, st. mary college of winchester in oxford was the prototype. the curriculum was civil law, canon law, medicine, with astronomical instruments that students made, theology, and the arts. the arts textbooks were still grammar, logic, donatus, and aristotle. many laymen were literate, for instance country gentry, merchants, and craftsmen. laymen instead of clerics were now appointed to the great offices of state. parliament met about twice a year and lasted from two weeks to several months. there was a well-defined group of about fifty barons and a few spiritual peers who were always summoned to parliament and who composed a house of lords. "peer" now meant a member of the house of lords. all peers had the right to approach the king with advice. the baron peers reasoned that the custom of regular attendance was a right that should be inherited by the eldest son, or by a female heir, if there were no male heirs. however, the theory of nobility by blood as conveying political privilege had no legal recognition. no female could attend parliament; the husband of a baroness attended parliament in her stead. edward iii and richard ii created new peers with various titles of dignity, such as duke and marquess, which were above barons and earls. the dukes and marquesses were identified with a territorial designation such as an english county or county town. whenever a parliament was assembled the commons were present. the commons was composed of representatives from 100 boroughs and 37 counties. each new parliament required an election of representatives. the members of the commons were generally the most prominent and powerful economic and political figures of the county and were repeatedly reelected. the electors were usually influenced by the sheriff or a powerful lord who suggested suitable men. the wealthy merchants typically represented the boroughs and paid much of the taxes. under edward iii, the commons took a leading part in the granting of taxes and the presentation of petitions and became a permanent and distinct body, the house of commons, with a spokesman or "speaker", chosen by the crown, and a clerk. the speaker came to be an intermediary between the commons and the king and between the commons and the lords. a clerk of parliament registered its acts and sat with the lords. a clerk of the crown superintended the issue of writs and the receipt of the returns and attested the signature of the king on statutes. it became a regular practice for the chancellor to open parliament with an opportunity to present petitions after his opening speech. the king then referred them to certain peers and justices, who decided to which court, or parliament, they should be sent. during the 1300s, the number of barons going to parliament gradually decreased. at the 1376 parliament, ("the good parliament") the commons, which formerly had only consented to taxes, took political action by complaining that the king's councilors had grown rich by war profiteering at the cost of impoverishing the nation and the people were too poor to endure any more taxation for the war and held a hearing on financial malfeasance and dishonesty of two ministers. the chamberlain had extorted enormous sums, had intercepted fines meant for the king's treasury, and had sold a castle to the enemy. the steward had bought debts of the king's. the house of lords, the high court of parliament, found the charges proved and dismissed them permanently from office. this established the constitutional means for impeachment and prosecution by the commons and removal by the house of lords of ministers. by this process, there could be no royal intimidation, as there could be in the ordinary courts. the commons demanded that its members be elected by county citizens rather than appointed by the sheriff. the roles of parliament and the king's council are starting to differentiate into legislative and executive, respectively. the legislative function is lawmaking, and the executive is regulation-making that refines and effectuates the laws of parliament. but the legislative, executive, and judicial authorities have not as yet become so completely separated that they cannot on occasion work together. sheriffs dealt directly with the king instead of through an earl. >from 1150 to 1400, resistance was an ordinary remedy for political disagreements. if a popular leader raised his standard in a popular cause, an irregular army could be assembled in a day. (there was no regular army, since england was protected by the sea from invasion.) so misgovernment by a king would be quickly restrained. society recovered quickly from conflict and civil war because the national wealth consisted chiefly in flocks and herds and in the simple buildings inhabited by the people. in a week after armed resistance, the agricultural worker was driving his team. there was little furniture, stock of shops, manufactured goods, or machinery that could be destroyed. to support a war with france in 1353, the staple was reinstated by statute of 1353 after an experiment without it in which profits of a staple went to staples outside the nation. wool exports were inspected for quality and taxed through his officials only at the designated staple ports. these officials included collectors, controllers, searchers [inspectors], surveyors, clerks, weighers, and crane-keepers. wool, woolfells, leather, and lead sold for export had to go through the staple town. the penalty was forfeiture of lands, tenements, goods, and chattel. (the staple statute remained basically unchanged for the next 200 years.) the mayor and constables of the staple were elected annually by the native and foreign merchants of the place. the mayor gave validity to contracts for a set fee, by seal of his office. he and the constables had jurisdiction over all persons and things touching the staple, which was regulated by the law merchant in all matters of contract, covenant, debt, and felonies against foreign merchants. a hue and cry was required to be raised and followed for anyone taking a cart of merchandise or slaying a merchant, denizen [resident alien] or alien, or the town would answer for the robbery and damage done. in 1363, calais, a continental town held by the english, became the staple town for lead, tin, cloth, and wool and was placed under a group of london capitalists: the merchants of the staple. all exports of these had to pass through calais, where customs tax was collected. guns and cannon were common by 1372. in the 1300s and 1400s, the king relied on mercenaries hired directly or by contract with his great nobles for foreign wars. the king reimbursed the contractors with the profits of war, such as the ransoms paid by the families of rich prisoners. the fighting men supplemented their pay by plunder. featherbeds and blooded horses were favorite spoils of war brought back to england from the continent. as new techniques with footmen came into being, the footmen became the core of the army and the knightly abilities of the feudal tenants-in-chief became less valuable. many lords got men to fight with them by livery and maintenance employment agreements such as this one of 1374: "bordeaux, february 15. this indenture, made between our lord king john [of gaunt, of castile, etc.] of the one part and symkyn molyneux, esquire, of the other part, witnesses that the said symkyn is retained and will remain with our said lord for peace and for war for the term of his life, as follows: that is to say, the said symkyn shall be bound to serve our said lord as well in time of peace as of war in whatsoever parts it shall please our said lord, well and fitly arrayed. and he shall be boarded as well in time of peace as of war. and he shall take for his fees by the year, as well in time of peace as of war, ten marks sterling [133s.] from the issues of the duchy of lancaster by the hands of the receiver there who now is or shall be in time to come, at the terms of easter and michaelmas by even portions yearly for the whole of his life. and, moreover, our lord has granted to him by the year in time of war five marks sterling [67s.] by the hands of the treasurer of war for the time being. and his year of war shall begin the day when he shall move from his inn towards our said lord by letters which shall be sent to him thereof, and thenceforward he shall take wages coming and returning by reasonable daily [payments] and he shall have fitting freightage for him, his men, horses, and other harness within reason, and in respect of his war horses taken and lost in the service of our said lord, and also in respect to prisoners and other profits of war taken or gained by him or any of his men, the said our lord will do to him as to other squires of his rank." forecastles and stern castles on ships were lower and broader. underneath them were cabins. the english ship was still single masted with a single square sail. a fleet was formed with over 200 ships selected by the english admirals acting for the king at the ports. men were seized and pressed into service and criminals were pardoned from crimes to become sailors in the fleet, which was led by the king's ship. they used the superior longbow against the french sailor's crossbow. in 1372, the tower of london had four mounted fortress cannon and the port of dover had six. the war's disruption of shipping caused trade to decline. but the better policing of the narrow seas made piracy almost disappear. english merchants may carry their merchandise in foreign ships if there are no english ships available. anyone may ship or carry grain out of the nation, except to enemies, after paying duties. but the council may restrain this passage when necessary for the good of the nation. any merchant, privy or stranger, who was robbed of goods on the sea or lost his ship by tempest or other misfortune on the sea banks, his goods coming to shore could not be declared wreck, but were to be delivered to the merchant after he proves ownership in court by his marks on the goods or by good and lawful merchants. all stakes and obstacles set up in rivers impeding the passage of boats shall be removed. waterpower was replacing foot power in driving the mills where cloth was cleaned and fulled. a boundary dispute between two barons resulted in the first true survey map. nine cow pastures were divided by a boundary marked by a shield on a pole which the commission of true and sworn men had set up. king richard ii, an irresponsible sovereign, asserted an absolute supremacy of the king over parliament and declared certain statutes which he claimed to have been forced on him to be revoked. he interfered with county elections of knights to parliament by directing sheriffs to return certain named persons. he wanted to dispense altogether with parliament and instead have a committee of representatives. he claimed that the goods of his subjects were his own and illegally taxed the counties. there were many disputes as to who should be his ministers. high treason was extended to include making a riot and rumor, compassing or purposing to depose the king, revoking one's homage or liege to the king, or attempting to repeal a statute. when henry bolingbroke reported to parliament that another lord had cast doubt on the king's trustworthiness, a duel between them was arranged. but richard, probably fearing the gain of power of the lord who won, instead exiled the two lords. he took possession of the lancaster estates to which henry was heir and forbade this inheritance. this made all propertied men anxious and they united behind bolingbroke in taking up arms against richard. richard was not a warrior king and offered to resign the crown. the "merciless parliament" of 1388 swept out richard's friends. parliament deposed and imprisoned richard. it revoked the extensions to the definition of high treason. it elected bolingbroke, who claimed to be a descendant of henry iii, to be king henry iv. this action established clearly that royal decrees were subordinate to parliamentary statutes, that parliament was the ultimate legal arbiter of the realm, and that the consent of parliament was necessary in determining kingship. the house of commons became very powerful. it was responsible for the major part of legislation. it's members began to assert the privilege of free speech. that is, they wanted to discuss other matters than what was on the king's agenda and they opposed punishment for what they said unless it was treasonable. henry iv agreed to their request not to consider reports of proceedings unless they came to him through official channels. the law after the black death of 1348 these statutes were enacted: high treason was defined by statute in 1352 as levying war against the king, aiding the king's enemies, compassing or imagining the death of the king, queen, or their eldest son and heir, or violating the queen or the eldest unmarried daughter or the wife of the king's eldest son and heir; making or knowingly using counterfeits of the king's great or privy seal or coinage; or slaying the chancellor, treasurer, or any justice in the exercise of their duty. the penalty was forfeit of life and lands. petit treason was defined by statute and included a servant slaying his master, a wife her husband, or a man his lord, to whom was owed faith and obedience. no one shall tell false news or lies about prelates, dukes, earls, barons, and other nobles and great men or the chancellor, treasurer, a justice, clerk of the privy seal, steward of the king's house whereby debates and discords might arise between these lords or between the lords and the commons. cases shall be tried by the king's council, which included the chancellor, treasurer, and chief justices. preachers drawing crowds by ingenious sermons and inciting them to riot shall be arrested by sheriffs and tried by the ecclesiastical court. any stranger passing at night of whom any have suspicion shall be arrested and taken to the sheriff. no man shall ride with a spear, upon pain of forfeiting it. no servant of agriculture or laborer shall carry any sword or dagger, or else forfeit it, except in time of war in defense of the nation. he may carry bow and arrow [for practice] on sundays and holy days, when he should not play games such as tennis, football, or dice. no one may enter another's land and tenements by strong hand nor with a mob, upon pain of imprisonment and ransom at the king's will. charters, releases, obligations, [quitclaim deeds] and other deeds burnt or destroyed in uprisings shall be reissued without fee, after trial by the king and his council. manumissions, obligations, releases and other bonds and feoffments in land made by force, coercion or duress during mob uprisings are void. men who rape and women consenting after a rape shall lose their inheritance and dower and joint feoffments. the husbands, or father or next of kin of such women may sue the rapist by inquisition, but not by trial by combat. the penalty is loss of life and member. the statute of laborers of 1351 required all workers, from tailors to ploughmen, to work only at pre-plague wage rates and forced the vagrant peasant to work for anyone who claimed him or her. it also encouraged longer terms of employment as in the past rather than for a day at a time. statutory price controls on food limited profits to reasonable ones according to the distance of the supply. later, wages were determined in each county by justices of the peace according to the dearth of victuals while allowing a victualer a reasonable profit and a penalty was specified as paying the value of the excess wages given or received for the first offense, double this for the second offense, and treble this or forty days imprisonment for the third offense. a fugitive laborer will be outlawed, and when found, shall be burnt in the forehead with the letter "f" for falsity. children who labored at the plough and cart or other agriculture shall continue in that labor and may not go into a craft. a statute of 1363 designed to stop hoarding various types of merchandise until a type became scarce so to sell it at high prices, required merchants to deal in only one type of merchandise. it also required craftsmen to work in only one craft as before (except women who traditionally did several types of handiwork). this was repealed a year later. where scarcity has made the price of poultry high, it shall be lowered to 8d. for a young capon, 7d. for an old capon or a goose, 9d. for a hen, and 10d. for a pullet. the fares for passage on boats on fresh waters and from dover to the continent shall remain at their old rate. any merchant selling at a fair after it has ended will forfeit to the king twice the value of that sold. anyone finding and proving cloth contrary to the assize of cloth shall have one-third of it for his labor. no shoemaker nor cordwainer shall tan their leather and no tanner shall make shoes, in order that tanning not be false or poorly done. all denizen [foreigner permitted to reside in the realm with certain rights and privileges] and alien merchants may buy and sell goods and merchandise, in gross, in any part of the country, despite town charters or franchises, to anyone except an enemy of the king. they may also sell small wares: victuals, fur, silk, coverchiefs [an item of woman's apparel], silver wire, and gold wire in retail, but not cloth or wine. they must sell their goods within three months of arrival. any alien bringing goods to the nation to sell must buy goods of the nation to the value of at least one-half that of his merchandise sold. these merchants must engage in no collusion to lower the price of merchandise bought, take merchandise bought to the staple, and promise to hold no staple beyond the sea for the same merchandise. an amendment disallowed denizens from taking wools, leather, woolfells, or lead for export, but only strangers. towns failing to bring disturbers of this right to justice shall forfeit their franchise to the king and pay double damages to the merchant. the disturber shall be imprisoned for a year. cloth may not be tacked nor folded for sale to merchants unless they are opened to the buyers for inspection, for instance for concealed inferior wool. workers, weavers, and fullers shall put their seals to every cloth. and anyone could bring his own wools, woolfells, leather, and lead to the staple to sell without being compelled to sell them in the country. special streets or warehouses were appointed with warehouse rent fixed by the mayor and constables with four of the principal inhabitants. customs duties were regulated and machinery provided for their collection. no one was to forestall or regrate, that is, buy at one price and sell at a higher price in the same locale. forestallers were those who bought raw material on its way to market. regrators were those who tried to create a "corner" in the article in the market itself. imported cloth shall be inspected by the king's officials for nonstandard measurements or defects [despite town franchises]. no one shall leave the nation except at designated ports, on pain of one year's imprisonment. social distinctions by attire were mandated by statute of 1363. a servant, his wife, son, or daughter, shall only wear cloth worth no more than 27s. and shall not have more than one dish of meat or fish a day. carters, ploughmen, drivers of the plough, oxherds, cowherds, shepherds, and all other people owning less than 40s. of goods and chattels shall only wear blanket and russet worth no more than 12d. and girdles of linen according to their estate. craftsmen and free peasants shall only wear cloth worth no more than 40s. esquires and gentlemen below the rank of knight with no land nor rent over 2,000s. a year shall only wear cloth worth no more than 60s., no gold, silver, stone, fur, or the color purple. esquires with land up to 2,667s. per year may wear 67s. cloth, cloth of silk and silver, miniver [grey squirrel] fur and stones, except stones on the head. merchants, citizens, burgesses, artificers, and people of handicraft having goods and chattels worth 10,000s. shall wear cloth the same value as that worn by esquires and gentlemen with land or rent within 2,000s. per year. the same merchants and burgesses with goods and chattels worth 13,333s. and esquires and gentlemen with land or rent within 400s. per year may not wear gold cloth, miniver fur, ermine [white] fur, or embroidered stones. a knight with land or rents within 2,667s. yearly are limited to cloth of 80s., but his wife may wear a stone on her head. knights and ladies with land or rents within 8,000s. to 20,000s. yearly may not wear fur of ermine or of letuse, but may wear gold, and such ladies may wear pearls as well as stones on their heads. the penalty is forfeiture of such apparel. this statute is necessary because of "outrageous and excessive apparel of diverse persons against their estate and degree, to the great destruction and impoverishment of all the land". if anyone finds a hawk [used to hunt birds, ducks, and pheasant] that a lord has lost, he must take it to the sheriff for keeping for the lord to claim. if there is no claim after four months, the finder may have it only if he is a gentleman. if one steals a hawk from a lord or conceals from him the fact that it has been found, he shall pay the price of the hawk and be imprisoned for two years. no laborer or any other man who does not have lands and tenements of the value of 40s. per year shall keep a greyhound [or other hound or dog] to hunt, nor shall they use nets or cords or other devices to take [deer, hare, rabbits, nor other gentlemen's game], upon pain of one year imprisonment. (the rabbit had been introduced by the normans.) this 1390 law was primarily intended to stop the meetings of laborers and artificers. no man shall eat more than two courses of meat or fish in his house or elsewhere, except at festivals, when three are allowed [because great men ate costly meats to excess and the lesser people were thereby impoverished]. no one may export silver, whether bullion or coinage, or wine except foreign merchants may carry back the portion of their money not used to buy english commodities. the penalty for bringing false or counterfeit money into the nation is loss of life and member. an assigned searcher [inspector] for coinage of the nation on the sea passing out of the nation or bad money in the nation shall have one third of it. no foreign money may be used in the nation. each goldsmith shall have an identifying mark, which shall be placed on his vessel or work only after inspection by the king's surveyor. no one shall give anything to a beggar who is capable of working. vagrants begging in london were banned by this 1359 ordinance: "forasmuch as many men and women, and others, of divers counties, who might work, to the help of the common people, have betaken themselves from out of their own country to the city of london and do go about begging there so as to have their own ease and repose, not wishing to labor or work for their sustenance, to the great damage of the common people; and also do waste divers alms which would otherwise be given to many poor folks, such as lepers, blind, halt, and persons oppressed with old age and divers other maladies, to the destruction of the support of the same we do command on behalf of our lord the king, whom may god preserve and bless, that all those who go about begging in the said city and who are able to labor and work for the profit of the common people shall quit the said city between now and monday next ensuing. and if any such shall be found begging after the day aforesaid, the same shall be taken and put in the stocks on cornhill for half a day the first time, and the second time he shall remain in the stocks one whole day, and the third time he shall be taken and shall remain in prison for forty days and shall then forswear the said city forever. and every constable and the beadle of every ward of the said city shall be empowered to arrest such manner of folks and to put them in the stocks in manner aforesaid." the hundred year cry to "let the king live on his own" found fruition in a 1352 statute requiring consent of the parliament before any commission of array for militia could be taken and a 1362 statute requiring purchases of goods and means of conveyance for the king and his household to be made only by agreement with the seller and with payment to him before the king traveled on, instead of at the low prices determined unilaterally by the king's purveyor. every man who has wood within the forest may take houseboot [right to take wood for repair of one's house] and heyboot [right to take material for the maintenance of hedges and fences, and the making of farming utensils] in his wood without being arrested so long as it take such within the view of the foresters. no fecal matter, dung, garbage, or entrails of animals killed shall be put into ditches or rivers or other waters, so that maladies and diseases will not be caused by corrupted and infected air. the penalty is 400s. to the king after trial by the chancellor. gifts or alienation of land to guilds, fraternities, or towns are forbidden. instead, it escheats to its lord, or in his default, to the king. no man will be charged to go out of his county to do military service except in case of an enemy invasion of the nation. men who chose to go into the king's service outside the nation shall be paid wages by the king until their return. admiralty law came into being when ancient naval manners and customs were written down as the "black book of the admiralty". this included the organization of the fleet under the admiral, sea-maneuver rules such as not laying anchor until the admiral's ship had, engagement rules, and the distribution of captured goods: one-fourth to the vessel owner, one-fourth to the king if the seamen were paid by the king's wages, and the rest divided among the crew and admiral. stealing a boat or an anchor holding a boat was punishable by hanging. stealing an oar or an anchor was punishable by forty days imprisonment for the first offense, six months imprisonment for the second, and hanging for the third. desertion was punishable by loss of double the amount of wages earned and imprisonment for one year. cases were tried by jury in the admiral's court. wines, vinegar, oil and honey imported shall be gauged by the king's appointees. judicial procedure the office of justice of the peace was developed and filled by knights, esquires and gentlemen who were closely associated with the magnates. there was no salary nor any requirement of knowledge of the law. they were to pursue, restrain, arrest, imprison, try, and duly punish felons, trespassers, and rioters according to the law. they were expected to arrest vagrants who would not work and imprison them until sureties for good behavior was found for them. they also were empowered to inspect weights and measures. trespass included forcible offenses of breaking of a fence enclosing private property, assault and battery, false imprisonment, and taking away goods and chattels. the action of trespass was replacing private suits for murder and for personal injury. pardons may be given only for slaying another in one's own defense or by misfortune [accident], and not for slaying by lying in wait, assault, or malice aforethought. justices of assize, sheriffs, and justices of the peace and mayors shall have power to inquire of all vagabonds and compel them to find surety of their good bearing or be imprisoned. a reversioner shall be received in court to defend his right when a tenant for a term of life, tenant in dower, or by the law of england, or in tail after possibility of issue extinct are sued in court for the land, so as to prevent collusion by the demandants. a person in debt may not avoid his creditors by giving his tenements or chattels to his friends in collusion to have the profits at their will. where there was a garnishment given touching a plea of land, a writ of deceit is also maintainable. actions of debt will be heard only in the county where the contract was made. the action of debt includes enforcement of contracts executed or under seal, e.g. rent due on a lease, hire of an archer, contract of sale or repair of an item. thus there is a growing connection between the actions of debt and contract. executors have an action for trespass to their testators' goods and chattels in like manner as did the testator when alive. if a man dies intestate, his goods shall be administered by his next and most lawful friends appointed. such administrators shall have the same powers and duties as executors and be accountable as are executors to the ecclesiastical court. children born to english parents in parts beyond the sea may inherit from their ancestors in the same manner as those born in the nation. a person grieved by a false oath in a town court proceeding may appeal to the king's bench or common pleas, regardless of any town franchise. the court of the king's bench worked independently of the king. it was exceptional to find the king sitting on his bench. it became confined to the established common law. decisions of the common law courts are appealable to the house of lords. the king's council members who are not peers, in particular the justices and the masters of the chancery, are summoned by the house of lords only as mere assistants. parliament can change the common law by statute. the right of a peer to be tried for capital crimes by a court composed of his peers was established. there is a widespread belief that all the peers are by right the king's councilors. no attorney may practice law and also be a justice of assize. no justice may take any gift except from the king nor give counsel to any litigant before him. in 1390, there was another statute against maintainers, instigators, barretors, procurers, and embracers of quarrels and inquests because of great and outrageous oppressions of parties in court. because this encouraged maintenance by the retinue of lords with fees, robes, and other liveries, such maintainers were to be put out of their lords' service, and could not be retained by another lord. no one was to give livery to anyone else, except household members and those retained for life for peace or for war. justices of the peace were authorized to inquire about yeomen, or other of lower estate than squire, bearing livery of any lord. whereas it is contained in the magna carta that none shall be imprisoned nor put out of his freehold, nor of his franchises nor free custom, unless it be by the law of the land; it is established that from henceforth none shall be taken by petition or suggestion made to the king unless by indictment of good and lawful people of the same neighborhood where such deeds be done, in due manner, or by process made by writ original at the common law; nor that none be out of his franchise, nor of his freeholds, unless he be duly brought into answer and before judges of the same by the course of law. the chancery came to have a separate and independent equitable jurisdiction. it heard petitions of misconduct of government officials or of powerful oppressors, fraud, accident, abuse of trust, wardship of infants, dower, and rent charges. because the common law and its procedures had become technical and rigid, the chancery was given equity jurisdiction by statute in 1285. king edward iii proclaimed that petitions for remedies that the common law didn't cover be addressed to the chancellor, who was not bound by established law, but could do equity. in chancery, if there is a case that is similar to a case for which there is a writ, but is not in technical conformity with the requirements of the common law for a remedy, then a new writ may be made for that case by the chancellor. these were called "actions on the case". also, parliament may create new remedies. there were so many cases that were similar to a case with no remedy specified in the common law, that litigants were flowing into the chancery. the chancellor gave swift and equitable relief, which was summary. with the backing of the council, the chancellor made decisions implementing the policy of the statute of laborers. most of these concerned occupational competency, for instance negligent activity of carriers, builders, shepherds, doctors, cloth workers, smiths, innkeepers, and gaolers. for instance, the common law action of detinue could force return of cloth bailed for fulling or sheep bailed for pasturing, but could not address damages due to faulty work. the chancellor addressed issues of loss of wool, dead lambs, and damaged sheep, as well as dead sheep. he imposed a legal duty on innkeepers to prevent injury or damage to a patron or his goods from third parties. a dog bite or other damage by a dog known by its owner to be vicious was made a more serious offense than general damage by any dog. a person starting a fire was given a duty to prevent the fire from damaging property of others. the king will fine instead of seize the land of his tenants who sell or alienate their land, such fine to be determined by the chancellor by due process. only barons who were peers of the house of lords were entitled to trial in the house of lords. in practice, however, this pertained only to major crimes. treason was tried by the lords in parliament, by bill of "attainder". it was often used for political purposes. most attainders were reversed as a term of peace made between competing factions. the king's coroner and a murderer who had taken sanctuary in a church often agreed to the penalty of confession and perpetual banishment from the nation as follows: "memorandum that on july 6, [1347], henry de roseye abjured the realm of england before john bernard, the king's coroner, at the church of tendale in the county of kent in form following: 'hear this, o lord the coroner, that i, henry de roseye, have stolen an ox and a cow of the widow of john welsshe of retherfeld; and i have stolen eighteen beasts from divers men in the said county. and i acknowledge that i have feloniously killed roger le swan in the town of strete in the hundred of strete in the rape [a division of a county] of lewes and that i am a felon of the lord king of england. and because i have committed many ill deeds and thefts in his land, i abjure the land of the lord edward king of england, and [i acknowledge] that i ought to hasten to the port of hastings, which thou hast given me, and that i ought not to depart from the way, and if i do so i am willing to be taken as a thief and felon of the lord king, and that at hastings i will diligently seek passage, and that i will not wait there save for the flood and one ebb if i can have passage; and if i cannot have passage within that period, i will go up to the knees into the sea every day, endeavoring to cross; and unless i can do so within forty days, i will return at once to the church, as a thief and a felon of the lord king, so help me god." property damage by a tenant of a london building was assessed in a 1374 case: "john parker, butcher, was summoned to answer clement spray in a plea of trespass, wherein the latter complained that the said john, who had hired a tavern at the corner of st. martinle-grand from him for fifteen months, had committed waste and damage therein, although by the custom of the city no tenant for a term of years was entitled to destroy any portion of the buildings or fixtures let to him. he alleged that the defendant had taken down the door post of the tavern and also of the shop, the boarded door of a partition of the tavern, a seat in the tavern, a plastered partition wall, the stone flooring in the chamber, the hearth of the kitchen, and the mantelpiece above it, a partition in the kitchen, two doors and other partitions, of a total value of 21s. four pounds, 1s. 8d., and to his damage, 400s. [20 pounds]. the defendant denied the trespass and put himself on the country. afterwards a jury [panel]... found the defendant guilty of the aforesaid trespass to the plaintiff's damage, 40d. judgment was given for that amount and a fine of 1s. to the king, which the defendant paid immediately in court." the innkeeper's duty to safeguard the person and property of his lodgers was applied in this case: "john trentedeus of southwark was summoned to answer william latymer touching a plea why, whereas according to the law and custom of the realm of england, innkeepers who keep a common inn are bound to keep safely by day and by night without reduction or loss men who are passing through the parts where such inns are and lodging their goods within those inns, so that, by default of the innkeepers or their servants, no damage should in any way happen to such their guests ... on monday after the feast of the purification of the virgin mary in the fourth year of the now king by default of the said john, certain malefactors took and carried away two small portable chests with 533s. and also with charters and writings, to wit two writings obligatory, in the one of which is contained that a certain robert bour is bound to the said william in 2,000s. and in the other that a certain john pusele is bound to the same william in 800s. 40 pounds ... and with other muniments [writings defending claims or rights] of the same william, to wit his return of all the writs of the lord king for the counties of somerset and dorset, whereof the same william was then sheriff, for the morrow of the purification of the blessed mary the virgin in the year aforesaid, as well before the same lord the king in his chancery and in his bench as before the justices of the king's common bench and his barons of his exchequer, returnable at westminster on the said morrow, and likewise the rolls of the court of cranestock for all the courts held there from the first year of the reign of the said lord the king until the said monday, contained in the same chests being lodged within the inn of the same john at southwark and the said john ... says that on the said monday about the second hour after noon the said william entered his inn to be lodged there, and at once when he entered, the same john assigned to the said william a certain chamber being in that inn, fitting for his rank, with a door and a lock affixed to the same door with sufficient nails, so that he should lie there and put and keep his things there, and delivered to the said william the key to the door of the said chamber, which chamber the said william accepted... william says that ... when the said john had delivered to him the said chamber and key as above, the same william, being occupied about divers businesses to be done in the city of london, went out from the said inn into the city to expedite the said businesses and handed over the key of the door to a certain servant of the said william to take care of in meantime, ordering the servant to remain in the inn meanwhile and to take care of his horses there; and afterwards, when night was falling, the same william being in the city and the key still in the keeping of the said servant, the wife of the said john called unto her into her hall the said servant who had the key, giving him food and drink with a merry countenance and asking him divers questions and occupying him thus for a long time, until the staple of the lock of the door aforesaid was thrust on one side out of its right place and the door of the chamber was thereby opened and his goods, being in the inn of the said john, were taken and carried off by the said malefactors ... the said john says ...[that his wife did not call the servant into the hall, but that] when the said servant came into the said hall and asked his wife for bread and ale and other necessaries to be brought to the said chamber of his master, his wife immediately and without delay delivered to the same servant the things for which he asked ... protesting that no goods of the same william in the said inn were carried away by the said john his servant or any strange malefactors other than the persons of the household of the said william." on the coram rege roll of 1395 is a case on the issue of whether a court crier can be seized by officers of a staple: "edmund hikelyng, 'crier', sues william baddele and wife maud, john olney, and william knyghtbrugge for assault and imprisonment at westminster, attacking him with a stick and imprisoning him for one hour on wednesday before st. martin, 19 richard ii. baddele says mark faire of winchester was prosecuting a bill of debt for 18s. against edmund and john more before william brampton, mayor of the staple of westminster, and thomas alby and william askham, constables of the said staple, and on that day the mayor and the constables issued a writ of capias against edmund and john to answer mark and be before the mayor and the constables at the next court. this writ was delivered to baddele as sergeant of the staple, and by virtue of it he took and imprisoned edmund in the staple. maud and the others say they aided baddele by virtue of the said writ. edmund does not acknowledge baddele to be sergeant of the staple or mark a merchant of the staple or that he was taken in the staple. he is minister of the king's court of his bench and is crier under thomas thorne, the chief crier, his master. every servant of the court is under special protection while doing his duty or on his way to do it. on the day in question, he was at westminster carrying his master's staff of office before hugh huls, one of the king's justices, and william took him in the presence of the said justice and imprisoned him. the case is adjourned for consideration from hilary to easter." a law of equity began to be developed from decisions by the chancellor in his court of conscience from around 1370. one such case was that of godwyne v. profyt sometime after 1393. this petition was made to the chancellor: to the most reverend father in god, and most gracious lord, the bishop of exeter, chancellor of england. thomas godwyne and joan his wife, late wife of peter at more of southwerk, most humbly beseech that, whereas at michaelmas in the 17th year of our most excellent lord king richard who now is, the said peter at more in his lifetime enfeoffed thomas profyt parson of st. george's church southwerk, richard saundre, and john denewey, in a tenement with the appurtenances situated in southwerk and 24 acres of land 6 acres of meadow in the said parish of st. george and in the parish of our lady of newington, on the conditions following, to wit, that the said three feoffees should, immediately after the death of the said peter, enfeoff the said joan in all the said lands and tenements with all their appurtenances for the life of the said joan, with remainder after her decease to one nicholas at more, brother of the said peter, to hold to him and the heirs of his body begotten, and for default of issue, then to be sold by four worthy people of the said parish, and the money to be received for the same to be given to holy church for his soul; whereupon the said peter died. and after his death two of the said feoffees, richard and john, by the procurement of one john solas, released all their estate in the said lands and tenements to the said thomas profyt, on the said conditions, out of the great trust that they had in the said thomas profyt, who was their confessor, that he would perform the will of the said peter [at more] in the form aforesaid; and this well and lawfully to do the said thomas profyt swore on his verbum dei and to perform the said conditions on all points. and since the release was so made, the said thomas profyt, through the scheming and false covin of the said john solas, has sold all the lands and tenements aforesaid to the same john solas for ever. and the said john solas is bound to the said thomas profyt in 100 pounds by a bond to make defense of the said lands and tenements by the bribery (?) and maintenance against every one; and so by their false interpretation and conspiracy the said joan, nicholas, and holy church are like to be disinherited and put out of their estate and right, as is abovesaid, for ever, tortiously, against the said conditions, and contrary to the will of the said peter [at more]. may it please your most righteous lordship to command the said thomas profyt, richard saundre, and john denewy to come before you, and to examine them to tell the truth of all the said matter, so that the said joan, who has not the wherewithal to live, may have her right in the said lands and tenements, as by the examination before you, most gracious lord, shall be found and proved; for god and in way of holy charity. chapter 10 the times: 1399-1485 this period, which begins with the reign of the usurper king, henry iv, is dominated by war: the last half of the 100 year war with france, which, with the help of joan of arc, took all english land on the continent except the port of calais, and the war of the roses over the throne in england. the ongoing border fights with wales and scotland were fought by england's feudal army. but for fighting in france, the king paid barons and earls to raise their own fighting forces. when they returned to england, they fought to put their candidate on its throne, which had been unsteady since its usurpation by henry iv. all the great houses kept bands of armed retainers. these retainers were given land or pay or both as well as liveries [uniforms or badges] bearing the family crest. in the system of "livery and maintenance", if the retainer was harassed by the law or by enemies, the lord protected him. the liveries became the badges of the factions engaged in the war of the roses. and the white rose was worn by the supporters of the house of york, and the red rose by supporters of the house of lancaster for the crown. great lords fought each other for property and made forcible entries usurping private property. shakespeare's histories deal with this era. in both wars, the musket was used as well as the longbow. to use it, powder was put into the barrel, then a ball rammed down the barrel with a rod, and then the powder lit by a hot rod held with one hand while the other hand was used to aim the musket. cannon were used to besiege castles and destroy their walls, so many castles were allowed to deteriorate. the existence of cannon also limited the usefulness of town walls for defense. but townspeople did not take part in the fighting. since the power of the throne changed from one faction to another, political and personal vindictiveness gave rise to many bills of attainder that resulted in lords being beheaded and losing their lands to the king. however, these were done by the form of law; there were no secret executions in england. families engaged in blood feuds. roving bands ravaged the country, plundering the people, holding the forests, and robbing collectors of crown revenue. some men made a living by fighting for others in quarrels. individual life and property were insecure. whole districts were in a permanent alarm of riot and robbery. the roads were not safe. nobles employed men who had returned from fighting in war to use their fighting skill in local defense. there was fighting between lords and gangs of ruffians holding the roads, breaking into and seizing manor houses, and openly committing murders. peace was never well-kept nor was law ever well-executed, though fighting was suspended by agreement during the harvest. local administration was paralyzed by party faction or lodged in some great lord or some clique of courtiers. the elections of members to parliament was interfered with and parliament was rarely held. barons and earls fought their disputes in the field rather than in the royal courts. litigation was expensive, so men relied increasingly on the protection of the great men of their neighborhood and less on the king's courts for the safety of their lives and land. local men involved in court functions usually owed allegiance to a lord which compromised the exercise of justice. men serving in an assize often lied to please their lord instead of telling the truth. lords maintained, supported, or promoted litigation with money or aid supplied to one party to the detriment of justice. it was not unusual for lords to attend court with a great force of retainers behind them. many justices of the peace wore liveries of magnates and accepted money from them. royal justices were flouted or bribed. the king's writ was denied or perverted. for 6-8s., a lord could have the king instruct his sheriff to impanel a jury which would find in his favor. a statute against riots, forcible entries, and, excepting the king, magnates' liveries of uniform, food, and badges to their retainers, except in war outside the nation, was passed, but was difficult to enforce because the offenders were lords, who dominated the parliament and the council. with men so often gone to fight, their wives managed the household alone. the typical wife had maidens of equal class to whom she taught household management, spinning, weaving, carding wool with iron wool-combs, heckling flax, embroidery, and making garments. there were foot-treadles for spinning wheels. she taught the children. each day she scheduled the activities of the household including music, conversation, dancing, chess, reading, playing ball, and gathering flowers. she organized picnics, rode horseback and went hunting, hawking to get birds, and hare-ferreting. she was nurse to all around her. if her husband died, she usually continued in this role because most men named their wife as executor of their will with full power to act as she thought best. the wives of barons shared their right of immunity from arrest by the processes of common law and to be tried by their peers. for ladies, close-fitting jackets came to be worn over closefitting long gowns with low, square-cut necklines and flowing sleeves, under which was worn a girdle or corset of stout linen reinforced by stiff leather or even iron. her skirt was provocatively slit from knee to ankle. all her hair was confined by a hair net. headdresses were very elaborate and heavy, trailing streamers of linen. some were in the shape of hearts, butterflies, crescents, double horns, steeples, or long cones. men also wore hats rather than hoods. they wore huge hats of velvet, fur, or leather. their hair was cut into a cap-like shape on their heads, and later was shoulder-length. they wore doublets with thick padding over the shoulders or short tunics over the trucks of their bodies and tightened at the waist to emphasize the shoulders. their collars were high. their sleeves were long concoctions of velvet, damask, and satin, sometimes worn wrapped around their arms in layers. their legs and hips were covered with hosen, often in different colors. codpieces worn between the legs emphasized the sensuality of the age as did ladies' tight and lowcut gowns. men's shoes were pointed with upward pikes at the toes that impeded walking. at another time, their shoes were broad with blunt toes. both men and women wore much jewelry and ornamentation. but, despite the fancy dress, the overall mood was a macabre preoccupation with mortality, despair, and a lack of confidence in the future. cannon and mercenaries had reduced the military significance of knighthood, so its chivalric code deteriorated into surface politeness, ostentation, and extravagance. master and servants ceased to eat together in the same hall, except for great occasions, on feast days, and for plays. the lord, and his lady, family, and guests took their meals in a great chamber, usually up beneath the roof next to the upper floor of the great hall. the chimney-pieces and windows were often richly decorated with paneled stonework, tracery and carving. there was often a bay or oriel window with still expensive glass. tapestries, damask, and tablecloths covered the tables. there was much formality and ceremonial ritual, more elaborate than before, during dinners at manorial households, including processions bringing and serving courses, and bowing, kneeling, and curtseying. there were many courses of a variety of meats, fish, stews, and soups, with a variety of spices and elaborately cooked. barons, knights, and their ladies sat to the right of the lord above the salt and were served by the lord's sewer and carver and gentlemen waiters; their social inferiors such as "gentlemen of worship" sat below the salt and were served by another sewer and yeomen. the lord's cupbearer looked after the lord alone. a knights table was waited on by yeomen. the gentlemen officers, gentlemen servants and yeomen officers were waited on by their own servants. the amount of food dished out to each person varied according to his rank. the almoner said grace and distributed the leftovers to the poor gathered at the gate. the superior people's hands were washed by their inferiors. lastly, the trestle tables were removed while sweet wine and spices were consumed standing. then the musicians were called into the hall and dancing began. the lord usually slept in a great bed in this room. the standard number of meals was three: breakfast, dinner, and supper. the diet of an ordinary family such as that of a small shopholder or yeoman farmer included beef, mutton, pork, a variety of fish, both fresh and salted, venison, nuts, peas, oatmeal, honey, grapes, apples, pears, and fresh vegetables. cattle and sheep were driven from wales to english markets. this droving lasted for five centuries. many types of people besides the nobility and knights now had property and thus were considered gentry: female lines of the nobility, merchants and their sons, attorneys, auditors, squires, and peasant-yeomen. the burgess grew rich as the knight dropped lower. the great merchants lived in mansions which could occupy whole blocks. typically, there would be an oak-paneled great hall, with adjoining kitchen, pantry, and buttery on one end and a great parlor to receive guests, bedrooms, wardrobes, servants' rooms, and a chapel on the other end or on a second floor. the beds were surrounded by heavy draperies to keep out cold drafts. in towns these mansions were entered through a gate through a row of shops on the street. a lesser dwelling would have these rooms on three floors over a shop on the first floor. an average londoner would have a shop, a storeroom, a hall, a kitchen, and a buttery on the first floor, and three bedrooms on the second floor. artisans and shopkeepers of more modest means lived in rows of dwellings, each with a shop and small storage room on the first floor, and a combination parlor-bedroom on the second floor. the humblest residents crowded their shop and family into one 6 by 10 foot room for rent of a few shillings a year. all except the last would also have a small garden. the best gardens had a fruit tree, herbs, flowers, a well, and a latrine area. there were common and public privies for those without their own. kitchen slops and casual refuse continued to be thrown into the street. floors of stone or planks were strewn with rushes. there was some tile flooring. most dwellings had glass windows. candles were used for lighting at night. torches and oil-burning lanterns were portable lights. furnishings were still sparse. men sat on benches or joint stools and women sat on cushions on the floor. hall and parlor had a table and benches and perhaps one chair. bedrooms had a curtained feather bed with pillows, blankets, and sheets. clothes were stored in a chest, sometimes with sweet-smelling herbs such as lavender, rosemary, and southernwood. better homes had wall hanging and cupboards displaying plate. laundresses washed clothes in the streams, rivers, and public conduits. country peasants still lived in wood, straw, and mud huts with earth floors and a smoky hearth in the center or a kitchen area under the eaves of the hut. in 1442, bricks began to be manufactured in the nation and so there was more use of bricks in buildings. chimneys were introduced into manor houses where stone had been too expensive. this was necessary if a second floor was added, so the smoke would not damage the floor above it and would eventually go out of the house. nobles and their retinue moved from manor to manor, as they had for centuries, to keep watch upon their lands and to consume the produce thereof; it was easier to bring the household to the estate than to transport the yield of the estate to the household. also, at regular intervals sewage had to be removed from the cellar pits. often a footman walked or ran on foot next to his master or mistress when they rode out on horseback or in a carriage. he was there primarily for prestige. jousting tournaments were held for entertainment purposes only and were followed by banquets of several courses of food served on dishes of gold, silver, pewter, or wood on a linen cloth covering the table. hands were washed before and after the meal. people washed their faces every morning after getting up. teeth were cleaned with powders. fragrant leaves were chewed for bad breath. garlic was used for indigestion and other ailments. feet were rubbed with salt and vinegar to remove calluses. good manners included not slumping against a post, fidgeting, sticking one's finger into one's nose, putting one's hands into one's hose to scratch the privy parts, spitting over the table or too far, licking one's plate, picking one's teeth, breathing stinking breath into the face of the lord, blowing on one's food, stuffing masses of bread into one's mouth, scratching one's head, loosening one's girdle to belch, and probing one's teeth with a knife. fishing and hunting were reserved for the nobility rather than just the king. as many lords became less wealthy because of the cost of war, some peasants, villein and free, became prosperous, especially those who also worked at a craft, e.g. butchers, bakers, smiths, shoemakers, tailors, carpenters, and cloth workers. an agricultural slump caused poorer soils to fall back into waste. the better soils were leased by peasants, who, with their families, were in a better position to farm it than a great lord, who found it hard to hire laborers at a reasonable cost. further, peasants' sheep, hens, pigs, ducks, goats, cattle, bees, and crop made them almost self-sufficient in foodstuffs. they lived in a huddle of cottages, pastured their animals on common land, and used common meadows for haymaking. they subsisted mainly on boiled bacon, an occasional chicken, worts and beans grown in the cottage garden, and cereals. they wore fine wool cloth in all their apparel. brimless hats were replacing hoods. they had an abundance of bed coverings in their houses. and they had more free time. village entertainment included traveling jesters, acrobats, musicians, and bear-baiters. playing games and gambling were popular pastimes. most villeins were now being called "customary tenants" or "copyholders" of land because they held their acres by a copy of the court-roll of the manor, which listed the number of teams, the fines, the reliefs, and the services due to the lord for each landholder. the chancery court interpreted many of these documents to include rights of inheritance. the common law courts followed the lead of the chancery and held that copyhold land could be inherited as was land at common law. evictions by lords decreased. the difference between villein and freeman lessened but landlords usually still had profits of villein bondage, such as heriot, merchet, and chevage. a class of laborers was arising who depended entirely on the wages of industry for their subsistence. the cloth workers in rural areas were isolated and weak and often at the mercy of middlemen for employment and the amount of their wages. when rural laborers went to towns to seek employment in the new industries, they would work at first for any rate. this deepened the cleavage of the classes in the towns. the artificers in the town and the cottagers and laborers in the country lived from hand to mouth, on the edge of survival, but better off than the old, the diseased, the widows, and the orphans. however, the 1400s were the most prosperous time for laborers considering their wages and the prices of food. meat and poultry were plentiful and grain prices low. social mobility was most possible in the towns, where distinctions were usually only of wealth. so a poor apprentice could aspire to become a master, a member of the livery of his company, a member of the council, an alderman, a mayor, and then an esquire for life. the distance between baron and a country knight and between a yeoman and knight was wider. manor custom was strong. but a yeoman could give his sons a chance to become gentlemen by entering them in a trade in a town, sending them to university, or to war. every freeman was to some extent a soldier, and to some extent a lawyer, serving in the county or borough courts. a burgess, with his workshop or warehouse, was trained in warlike exercises, and he could keep his own accounts, and make his own will and other legal documents, with the aid of a scrivener or a chaplain, who could supply an outline of form. but law was growing as a profession. old-established london families began to choose the law as a profession for their sons, in preference to an apprenticeship in trade. many borough burgesses in parliament were attorneys. in london, shopkeepers appealed to passersby to buy their goods, sometimes even seizing people by the sleeve. the drapers had several roomy shops containing shelves piled with cloths of all colors and grades, tapestries, pillows, blankets, bed draperies, and 'bankers and dorsers' to soften hard wooden benches. a rear storeroom held more cloth for import or export. many shops of skinners were on fur row. there were shops of leather sellers, hosiers, gold and silver cups, and silks. at the stocks market were fishmongers, butchers, and poulterers. london grocers imported spices, canvas, ropery, potions, unguents, soap, confections, garlic, cabbages, onions, apples, oranges, almonds, figs, dates, raisins, dyestuffs, woad, madder (plant for medicine and dye), scarlet grains, saffron, iron, and steel. they were retailers as well as wholesalers and had shops selling honey, licorice, salt, vinegar, rice, sugar loaves, syrups, spices, garden seeds, dyes, alum, soap, brimstone, paper, varnish, canvas, rope, musk, incense, treacle of genoa, and mercury. the grocers did some money lending, usually at 12% interest. the guilds did not restrict themselves to dealing in the goods for which they had a right of inspection, and so many dealt in wine that it was a medium of exchange. there was no sharp distinction between retail and wholesale trading. in london, grocers sold herbs for medicinal as well as eating purposes. breadcarts sold penny wheat loaves. foreigners set up stalls on certain days of the week to sell meat, canvas, linen, cloth, ironmongery, and lead. there were great houses, churches, monasteries, inns, guildhalls, warehouses, and the king's beam for weighing wool to be exported. in 1410, the guildhall of london was built through contributions, proceeds of fines, and lastly, to finish it, special fees imposed on apprenticeships, deeds, wills, and letters-patent. the mercers and goldsmiths were in the prosperous part of town. the goldsmiths' shops sold gold and silver plate, jewels, rings, water pitchers, drinking goblets, basins to hold water for the hands, and covered saltcellars. the grain market was on cornhill. halfway up the street, there was a supply of water which had been brought up in pipes. on the top of the hill was a cage where riotous folk had been incarcerated by the night watch and the stocks and pillory, where fraudulent schemers were exposed to ridicule. no work was to be done on sundays, but some did work surreptitiously. the barbers kept their shops open in defiance of the church. outside the london city walls were tenements, the smithfield cattle market, westminster hall, green fields of crops, and some marsh land. on the thames river to london were large ships with cargoes; small boats rowed by tough boatmen offering passage for a penny; small private barges of great men with carved wood, gay banners, and oarsmen with velvet gowns; the banks covered with masts and tackle; the nineteen arch london bridge supporting a street of shops and houses and a drawbridge in the middle; quays; warehouses, and great cranes lifting bales from ship to wharf. merchant guilds which imported or exported each had their own wharves and warehouses. downstream, pirates hung on gallows at the low-water mark to remain until three tides had overflowed their bodies. a climate change of about 1 1/2 degree celcius lower caused the thames to regularly freeze over in winter. the large scale of london trade promoted the specialization of the manufacturer versus the merchant versus the shipper. merchants had enough wealth to make loans to the government or for new commercial enterprises. local reputation on general, depended upon a combination of wealth, trustworthiness of character, and public spirit; it rose and fell with business success. some london merchants were knighted by the king. many bought country estates and turned themselves into gentry. the king granted london all common soils, improvements, wastes, streets, and ways in london and in the adjacent waters of the thames river and all the profits and rents to be derived therefrom. later the king granted london the liberty to purchase lands and tenements worth up to 2,667s. yearly. with this power, london had obtained all the essential features of a corporation: a seal, the right to make by-laws, the power to purchase lands and hold them "to them and their successors" (not simply their heirs, which is an individual and hereditary succession only), the power to sue and be sued in its own name, and the perpetual succession implied in the power of filling up vacancies by election. since these powers were not granted by charters, london is a corporation by prescription. in 1446, the liverymen obtained the right with the council to elect the mayor, the sheriff, and certain other corporate officers. many boroughs sought and obtained formal incorporation with the same essential features as london. this tied up the loose language of their early charters of liberties. often, a borough would have its own resident justice of the peace. each incorporation involved a review by a justice of the peace to make sure the charter of incorporation rule didn't conflict with the law of the nation. a borough typically had a mayor accompanied by his personal swordbearer and serjeants-at-mace bearing the borough regalia, bailiffs, a sheriff, and chamberlains or a steward for financial assistance. at many boroughs, aldermen, assisted by their constables, kept the peace in their separate wards. there might be coroners, a recorder, and a town clerk, with a host of lesser officials including beadles, aletasters, sealers, searchers [inspectors], weighers and keepers of the market, ferrymen and porters, clock-keepers and criers, paviors [maintained the roads], scavengers and other street cleaners, gatekeepers and watchmen of several ranks and kinds. a wealthy borough would have a chaplain and two or three minstrels. the mayor replaced the bailiffs as the chief magistracy. in all towns, the wealthiest and most influential guilds were the merchant traders of mercers, drapers, grocers, and goldsmiths. >from their ranks came most of the mayors, and many began to intermarry with the country knights and gentry. next came the shopholders of skinners, tailors, ironmongers, and corvisors [shoemakers]. thirdly came the humbler artisans, the sellers of victuals, small shopkeepers, apprentices, and journeymen on the rise. lastly came unskilled laborers, who lived in crowded tenements and hired themselves out. the first three groups were the free men who voted, paid scot and bore lot, and belonged to guilds. scot was a ratable proportion in the payments levied from the town for local or national purposes. merchant guilds in some towns merged their existence into the town corporation, and their guild halls became the common halls of the town, and their property became town property. in london, the cutlers' company was chartered in 1415, the haberdashers' company in 1417, the grocers' company in 1428, the drapers' and cordwainers' companies in 1429, the vintners' and brewers' companies in 1437, the leathersellers' company in 1444, the girdlers' company in 1448, the armourers' and brassiers' companies in 1453, the barbers' company in 1461, the tallow chandlers' company in 1462, the ironmongers' company in 1464, the dyers' company in 1471, the musicians' company in 1472, the carpenters' company in 1477, the cooks' company in 1481, and the waxchandlers' company in 1483. the fishmongers, which had been chartered in 1399, were incorporated in 1433, the cordwainers in 1439, and the pewterers in 1468. there were craft guilds in the towns, at least 65 in london. in fact, every london trade of twenty men had its own guild. the guild secured good work for its members and the members maintained the reputation of the work standards of the guild. bad work was punished and night work prohibited as leading to bad work. the guild exercised moral control over its members and provided sickness and death benefits for them. there was much overlapping in the two forms of association: the craft guild and the religious fraternity. apprentices were taken in to assure an adequate supply of competent workers for the future. the standard indenture of an apprentice bound him to live in his master's house, to serve him diligently, obey reasonable commands, keep his master's secrets, protect him from injury, abstain from dice, cards and haunting of taverns, not marry, commit no fornication, nor absent himself without permission. in return the master undertook to provide the boy or girl with bed, board, and lodging and to instruct him or her in the trade, craft, or mystery. when these apprentices had enough training they were made journeymen with a higher rate of pay. journeymen traveled to see the work of their craft in other towns. those journeymen rising to master had the highest pay rate. occupations free of guild restrictions included horse dealers, marbelers, bookbinders, jewelers, organ makers, feathermongers, pie makers, basket makers, mirrorers, quilters, and parchment makers. non-citizens of london could not be prevented from selling leather, metalwares, hay, meat, fruit, vegetables, butter, cheese, poultry, and fish from their boats, though they had to sell in the morning and sell all their goods before the market closed. in the towns, many married women had independent businesses and wives also played an active part in the businesses of their husbands. wives of well-to-do london merchants embroidered, sewed jewelry onto clothes, and made silk garments. widows often continued in their husband's businesses, such as managing a large import-export trade, tailoring, brewing, and metal shop. socially lower women often ran their own breweries, bakeries, and taverns. it was possible for wives to be free burgesses in their own right in some towns. some ladies were patrons of writers. some women were active in prison reform in matters of reviews to insure that no man was in gaol without due cause, overcharges for bed and board, brutality, and regulation of prisoners being placed in irons. many men and women left money in their wills for food and clothing for prisoners, especially debtors. wills often left one-third of the wealth to the church, the poor, prisoners, infirmaries, young girls' education; road, wall, and bridge repair; water supply, markets and almshouses. some infirmaries were for the insane, who were generally thought to be possessed by the devil or demons. their treatment was usually by scourging the demons out of their body by flogging. if this didn't work, torture could be used to drive the demons from the body. the guilds were being replaced by associations for the investment of capital. in associations, journeymen were losing their chance of rising to be a master. competition among associations was starting to supplant custom as the mainspring of trade. the cloth exporters, who were mostly mercers, were unregulated and banded together for mutual support and protection under the name of merchant adventurers of london. the merchant adventurers was chartered in 1407. it was the first and a prototype of regulated companies. that is the company regulated the trade. each merchant could ship on his own a certain number of cloths each year (the number depending on the length of his membership in the company) and sell them himself or by his factor at the place where the company had privileges of market. strict rules governed the conduct of each member. he was to make sales only at certain hours on specified days. all disagreements were to be settled by the company's governor, or his deputy in residence, and those officials dealt with such disputes as arose between members of the company and continental officials and buyers. a share in the ownership of one of their vessels was a common form of investment by prosperous merchants. by 1450, the merchant adventurers were dealing in linen cloths, buckrams [a stiffened, coarse cloth], fustians [coarse cloth made of cotton threads going in one direction and linen threads the other], satins, jewels, fine woolen and linen wares, threads, potions, wood, oil, wine, salt, copper, and iron. they began to replace trade by alien traders. the history of the "merchant adventurers" was associated with the growth of the mercantile system for more than 300 years. it eventually replaced the staples system. paved roads in towns were usually gravel and sometimes cobble. they were frequently muddy because of rain and spillage of water being carried. iron-shod wheels and overloaded carts made them very uneven. london was the first town with paviors. they cleaned and repaired the streets, filling up potholes with wood chips and compacting them with hand rams. the paviors were organized as a city company in 1479. about 1482, towns besides london began appointing salaried road paviors to repair roads and collect their expenses from the householders because the policy of placing the burden on individual householders didn't work well. london streets were lighted at night by public lanterns, under the direction of the mayor. the residents were to light these candle lanterns in winter from dusk to the 9 p.m. curfew. there were fire-engines composed of a circular cistern with a pump and six feet of inflexible hose on wheels pulled by two men on one end and pushed by two men on the other end. in 1480 the city walls were rebuilt with a weekly tax of 5d. per head. in schools, there was a renaissance of learning from original sources of knowledge written in greek and rebirth of the greek pursuit of the truth and scientific spirit of inquiry. there was a striking increase in the number of schools founded by wealthy merchants or town guilds. every cathedral, monastery, and college had a grammar school. merchants tended to send their sons to private boarding schools, instead of having them tutored at home as did the nobility. well-to-do parents still sent sons to live in the house of some noble to serve them as pages in return for being educated with the noble's son by the household priest. they often wore their master's coat of arms and became their squires as part of their knightly education. sometimes girls were sent to live in another house to take advantage to receive education from a tutor there under the supervision of the lady of the house. every man, free or villein, could send his sons and daughters to school. in every village, there were some who could read and write. in 1428, lincoln's inn required barristers normally resident in london and the county of middlesex to remain in residence and pay commons during the periods between sessions of court and during vacations, so that the formal education of students would be continuous. in 1442, a similar requirement was extended to all members. the book "sir gawain and the green knight" was written about an incident in the court of king arthur and queen guenevere in which a green knight challenges arthur's knights to live up to their reputation for valor and awesome deeds. the knight gawain answers the challenge, but is shown that he could be false and cowardly when death seemed to be imminent. thereafter, he wears a green girdle around his waist to remind him not to be proud. other literature read included "london lickpenny", a satire on london and its expensive services and products, "fall of princes" by john lydgate, social history by thomas hoccleve, "the cuckoo and the nightengale", and "the flower and leaf" on morality as secular common sense. king james i of scotland wrote a book about how he fell in love. chaucer, cicero, ovid, and aesops's fables were widely read. malory's new version of the arthurian stories was popular. margery kempe wrote the first true autobiography. she was a woman who had a normal married life with children, but one day had visions and voices which led her to leave her husband to take up a life of wandering and praying in holy possession. there were religious folk ballads such as "the cherry tree carol", about the command of jesus from mary's womb for a cherry tree to bend down so that mary could have some cherries from it. the common people developed ballads, e.g. about their love of the forest, their wish to hunt, and their hatred of the forest laws. about 30% of londoners could read english. books were bought in london in such quantities by 1403 that the craft organizations of text-letter writers, illuminators, bookbinders, and book sellers was sanctioned by ordinance. "unto the honorable lords, and wise, the mayor and aldermen of the city of london, pray very humbly all the good folks, freemen of the said city, of the trades of writers of text-letter, limners [illuminator of books], and other folks of london who are wont to bind and to sell books, that it may please your great sagenesses to grant unto them that they may elect yearly two reputable men, the one a limner, the other a textwriter, to be wardens of the said trades, and that the names of the wardens so elected may be presented each year before the mayor for the time being, and they be there sworn well and diligently to oversee that good rule and governance is had and exercised by all folks of the same trades in all works unto the said trades pertaining, to the praise and good fame of the loyal good men of the said trades and to the shame and blame of the bad and disloyal men of the same. and that the same wardens may call together all the men of the said trades honorably and peacefully when need shall be, as well for the good rule and governance of the said city as of the trades aforesaid. and that the same wardens, in performing their due office, may present from time to time all the defaults of the said bad and disloyal men to the chamberlain at the guildhall for the time being, to the end that the same may there, according to the wise and prudent discretion of the governors of the said city, be corrected, punished, and duly redressed. and that all who are rebellious against the said wardens as to the survey and good rule of the same trades may be punished according to the general ordinance made as to rebellious persons in trades of the said city [fines and imprisonment]. and that it may please you to command that this petition, by your sagenesses granted, may be entered of record for time to come, for the love of god and as a work of charity." gutenberg's printing press, which used movable type of small blocks with letters on them, was brought to london in 1476 by a mercer: william caxton. it supplemented the text-writer and monastic copyist. it was a wood and iron frame with a mounted platform on which were placed small metal frames into which words with small letters of lead had been set up. each line of text had to be carried from the type case to the press. beside the press were pots filled with ink and inking balls. when enough lines of type to make a page had been assembled on the press, the balls would be dipped in ink and drawn over the type. then a sheet of paper would be placed on the form and a lever pulled to press the paper against the type. linen usually replaced the more expensive parchment for the book pages. the printing press made books more accessible to all literate people. caxton printed major english texts and some translations from french and latin. he commended different books to various kinds of readers, for instance, for gentlemen who understand gentleness and science, or for ladies and gentlewomen, or to all good folk. there were many cook books in use. there were convex eyeglasses for reading and concave ones for distance to correct near-sightedness. the first public library in london was established from a bequest in a will in 1423. many carols were sung at the christian festival of christmas. ballads were sung on many features of social life of this age of disorder, hatred of sheriffs, but faith in the king. the legend of robin hood was popular. town miracle plays on leading incidents of the bible and morality plays were popular. vintners portrayed the miracle of cana where water was turned into wine and goldsmiths ornately dressed the three kings coming from the east. in york, the building of noah's ark was performed by the shipwrights and the flood performed by the fishery and mariners. short pantomimes and disguising, forerunners of costume parties, were good recreation. games of cards became popular as soon as cards were introduced. the king, queen, and jack were dressed in contemporary clothes. men bowled, kicked footballs, and played tennis. in london, christmas was celebrated with masques and mummings. there was a great tree in the main market place and evergreen decorations in churches, houses, and streets. there were also games, dances, street bonfires in front of building doors, and general relaxation of social controls. sometimes there was drunken licentiousness and revelry, with peasants gathering together to make demands of lords for the best of his goods. may day was celebrated with crowns and garlands of spring flowers. the village may day pageant was often presided over by robin hood and maid marion. people turned to mysticism to escape from the everyday violent world. they read works of mystics, such as "scale of perfection" and "cloud of unknowing", the latter describing how one may better know god. they believed in magic and sorcery, but had no religious enthusiasm because the church was engendering more disrespect. monks and nuns had long ago resigned spiritual leadership to the friars; now the friars too lost much of their good reputation. the monks became used to life with many servants such as cooks, butlers, bakers, brewers, barbers, laundresses, tailors, carpenters, and farm hands. the austerity of their diet had vanished. the schedule of divine services was no longer followed by many and the fostering of learning was abandoned. into monasteries drifted the lazy and miserable. nunneries had become aristocratic boarding houses. the practice of taking sanctuary was abused; criminals and debtors sought it and were allowed to overstay the 40-day restriction and to leave at night to commit robberies. there were numerous chaplains, who were ordained because they received pay from private persons for saying masses for the dead; having to forego wife and family, they had much leisure time for mischief. church courts became corrupt, but jealously guarded their jurisdiction from temporal court encroachment. peter's pence was no longer paid by the people, so the burden of papal exaction fell wholly on the clergy. but the church was rich and powerful, paying almost a third of the whole taxation of the nation and forming a majority in the house of lords. many families had kinsmen in the clergy. even the lowest cleric or clerk could read and write in latin. people relied on saint's days as reference points in the year, because they did not know dates of the year. but townspeople knew the hour and minute of each day, because clocks driven by a descending weight on a cord were in all towns and in the halls of the well-to-do. this increased the sense of punctuality and lifted standards of efficiency. these weight-driven clocks replaced water clocks, which had a problem of water freezing, and sandclocks, which could measure only small time intervals. a linguistic unity and national pride was developing. london english became the norm and predominated over rural dialects. important news was announced and spread by word of mouth in market squares and sometimes in churches. as usual, traders provided one of the best sources of news; they maintained an informal network of speedy messengers and accurate reports because political changes so affected their ventures. news also came from peddlers, who visited villages and farms to sell items that could not be bought in the local village. these often included scissors, eyeglasses, colored handkerchiefs, calendars, fancy leather goods, watches, and clocks. peddling was fairly profitable because of the lack of competition. but peddlers were often viewed as tramps and suspected of engaging in robbery as well as peddling. a royal post service was established by relays of mounted messengers. the first route was between london and the scottish border, where there were frequent battles for land between the scotch and english. the inland roads from town to town were still rough and without signs. a horseman could make up to 40 miles a day. common carriers took passengers and parcels from various towns to london on scheduled journeys. now the common yeoman could order goods from the london market, communicate readily with friends in london, and receive news of the world frequently. trade with london was so great and the common carrier so efficient in transporting goods that the medieval fair began to decline. first the grocers and then the mercers refused to allow their members to sell goods at fairs. there was much highway robbery. most goods were still transported by boats along the coasts, with trading at the ports. embroidery was exported. imported were timber, pitch, tar, potash [for cloth dying], furs, silk, satin, gold cloth, damask cloth, furred gowns, gems, fruit, spices, and sugar. imports were restricted by national policy for the purpose of protecting native industries. english single-masted ships began to be replaced by two or three masted ships with high pointed bows to resist waves and sails enabling the ship to sail closer to the wind. 200 tuns was the usual carrying capacity. the increase in trade made piracy, even by merchants, profitable and frequent until merchant vessels began sailing in groups for their mutual protection. the astrolabe was used for navigation by the stars. consuls were appointed to assist english traders abroad. henry iv appointed the first admiral of the entire nation and resolved to create a national fleet of warships instead of using merchant ships. in 1417, the war navy had 27 ships. in 1421, portsmouth was fortified as a naval base. henry v issued the orders that formed the basic law of english admiralty and appointed surgeons to the navy and army. he was the last true warrior king. for defense of the nation, especially the safeguard of the seas, parliament allotted the king for life, 3s. for every tun of wine imported and an additional 3s. for every tun of sweet wine imported. from about 1413, tunnage on wine and poundage on merchandise were duties on goods of merchants which were regularly granted by parliament to the king for life for upkeep of the navy. before this time, such duties had been sporadic and temporary. the most common ailments were eye problems, aching teeth, festering ears, joint swelling and sudden paralysis of the bowels. epidemics broke out occasionally in the towns in the summers. the plague swept london in 1467 and the nation in 1407, 1445, and 1471. leprosy disappeared. infirmaries were supported by a tax of the king levied on nearby counties. the walls, ditches, gutters, sewers, and bridges on waterways and the coast were kept in repair by laborers hired by commissions appointed by the chancellor. those who benefited from these waterways were taxed for the repairs in proportion to their use thereof. alabaster was sculptured into tombs surmounted with a recumbent effigy of the deceased, and effigies of mourners on the sides. few townsmen choose to face death alone and planned memorial masses to be sung to lift his soul beyond purgatory. chantries were built by wealthy men for this purpose. chemical experimentation was still thought to be akin to sorcery, so was forbidden by king henry iv in 1404. gold was minted into coins: noble, half noble, and farthing. king henry iv lost power to the commons and the lords because he needed revenue from taxes and as a usurper king, he did not carry the natural authority of a king. the commons acquired the right to elect its own speaker. the lords who helped the usurpation felt they should share the natural power of the kingship. the council became the instrument of the lords. also, the commons gained power compared to the nobility because many nobles had died in war. the consent of the commons to legislation became so usual that the justices declared that it was necessary. the commons began to see itself as representative of the entire commons of the realm instead of just their own counties. its members had the freedom to consider and debate every matter of public interest, foreign or domestic, except for church matters. the commons, the poorest of the three estates, established an exclusive right to originate all money grants to the king in 1407. the speaker of the commons announced its money grant to the king only on the last day of the parliamentary session, after the answers to its petitions had been declared, and after the lords had agreed to the money grant. it tied its grants by rule rather than just practice to certain appropriations. for instance, tunnage and poundage were appropriated for naval defenses. wool customs went to the maintenance of calais, a port on the continent, and defense of the nation. it also put the petitions in statutory form, called "bills", to be enacted after consideration and amendment by all without alteration. each house had a right to deliberate in privacy. in the commons, members spoke in the order in which they stood up bareheaded. any member of parliament or either house or the king could initiate a bill. both houses had the power to amend or reject a bill. there were conferences between select committees of both houses to settle their differences. the commons required the appointment of auditors to audit the king's accounts to ensure past grants had been spent according to their purpose. it forced the king's council appointees to be approved by parliament and to be paid salaries. about 1430, kings' councilors were required to take an oath not to accept gifts of land, not to maintain private suits, not to reveal secrets, and not to neglect the kings' business. a quorum was fixed and rules made for removal from the council. for the next fifty years, the council was responsible both to the king and to parliament. this was the first encroachment on the king's right to summon, prorogue, or dismiss a parliament at his pleasure, determine an agenda of parliament, veto or amend its bills, exercise his discretion as to which lords he summoned to parliament, and create new peers by letters patent [official public letters]. parliament was affected by the factionalism of the times. the speaker of the commons was often an officer of some great lord. in 1426, the retainers of the barons in parliament were forbidden to bear arms, so they appeared with clubs on their shoulders. when the clubs were forbidden, they came with stones concealed in their clothing. kings created dukes and marquesses to be peers. a duke was given creation money or allowance of 40 pounds a year. a marquess was given 35 pounds. these new positions could not descend to an heiress, unlike a barony or earldom. an earl was given 20 pounds, which probably took the place of his one-third from the county. king henry vi gave the title of viscount to several people; it had an allowance of 13.3 pounds and was above baron. it allowed them to be peers. there were about 55 peers. in king edward iv's reign, the king's retinue had about 16 knights, 160 squires, 240 yeomen, clerks, grooms, and stablemen. the suitable annual expense of the household of the king was 13,000 pounds for his retinue of about 516 people, a duke 4,000 pounds for about 230 people, a marquess 3,000 pounds for about 224 people, an earl 2,000 pounds for about 130 people, a viscount 1,000 pounds for about 84 people, a baron 500 pounds for about 26 people, a banneret [a knight made in the field, who had a banner] 200 pounds for about 24 people, a knight bachelor 100 pounds for about 16 people, and a squire 50 pounds for about 16 people. of a squire's 50 pounds, about 25 pounds were spent in food, repairs and furniture 5, on horses, hay, and carriage 4, on clothes, alms and oblations 4, wages 9, livery of dress 3, and the rest on hounds and the charges of harvest and hay time. many servants of the household of the country gentleman were poor relations. they might by education and accomplishment rise into the service of a baron who could take him to court and make his fortune. barons' households also included steward, chaplains, treasurer, accountants, chamberlain, carvers, servers, cupbearers, pages, and even chancellor. they were given wages and clothing allowances and had meals in the hall at tables according to their degree. the authority of the king's privy seal had become a great office of state which transmitted the king's wishes to the chancery and exchequer, rather than the king's personal instrument for sealing documents. now the king used a signet kept by his secretary as his personal seal. edward iv made the household office of secretary, who had custody the king's signet seal, a public office. the secretary was generally a member of the council. edward iv invented the benevolence, a gift wrung from wealthy subjects. king edward iv introduced an elaborate spy system, the use of the rack to torture people to give information, and other interferences with justice, all of which the tudor sovereigns later used. torture was used to discover facts, especially about coconspirators, rather than to elicit a confession, as on the continent. it was only used on prisoners held in the tower of london involved in state trials and could only be authorized by the king's closest councilors in virtue of the royal prerogative. the rack stretched the supine body by the wrists and legs with increasing agony at the joints until the limbs were dislocated. some victims were permanently crippled by it; others died on it. most told what they knew, often at the very sight of the rack. torture was forbidden in the common law, which favored an accusatorial system, in which the accuser had to prove guilt, rather than an inquisitional system, in which the accused had to prove innocence. edward iv applied martial law to ordinary cases of high treason by extending the jurisdiction of the politicallyappointed high constable of england to these cases, thus depriving the accused of trial by jury. he executed many for treason and never restored their forfeited land to their families, as had been the usual practice. king richard iii prohibited the seizure of goods before conviction of felony. he also liberated the unfree villeins on royal estates. it was declared under parliamentary authority that there was a preference for the crown to pass to a king's eldest son, and to his male issue after him. formerly, a man could ascend to the throne through his female ancestry as well. the law the forcible entry statute is expanded to include peaceful entry with forcible holding after the justices arrived and to forcible holding with departure before the justices arrived. penalties are triple damages, fine, and ransom to the king. a forceful possession lasting three years is exempt. by common law, a tenant could not take away buildings or fixtures he built on land because it would be wasteful. this applied to agricultural fixtures, but not to other trade fixtures. also at common law, if a person had enjoyed light next to his property for at least 20 years, no one could build up the adjacent land so that the light would be blocked. women of age fourteen or over shall have livery of their lands and tenements by inheritance without question or difficulty. purposely cutting out another's tongue or putting out another's eyes is a felony [penalty of loss of all property]. no one may keep swans unless he has lands and tenements of the estate of freehold to a yearly value of 67s., because swans of the king, lords, knights, and esquires have been stolen by yeomen and husbandmen. the wage ceiling for servants is: bailiff of agriculture 23s.4d. per year, and clothing up to 5s., with meat and drink; chief peasant, a carter, chief shepherd 20s. and clothing up to 4s., with meat and drink; common servant of agriculture 15s., and clothing up to 3s.4d.; woman servant 10s., and clothing up to 4s., with meat and drink; infant under fourteen years 6s., and clothing up to 3s., with meat and drink. such as deserve less or where there is a custom of less, that lesser amount shall be given. for laborers at harvest time: mower 4d. with meat and drink or 6d. without; reaper or carter: 3d. with or 5d. without; woman laborer and other laborers: 2d with and 4d. without. the ceiling wage rate for craftsmen per day is: free mason or master carpenter 4d. with meat & drink or 5d. without; master tiler or slater, rough mason, and mesne [intermediary] carpenter and other artificiers in building 3d. with meat and drink or 4d. without; every other laborer 2d. with meat and drink or 3d. without. in winter the respective wages were less: mason category: 3d. with or 4d. without; master tiler category: 2d. with or 4d. without; others: 1d. with or 3d. without meat and drink. any servant of agriculture who is serving a term with a master and covenants to serve another man at the end of this term and that other man shall notify the master by the middle of his term so he can get a replacement worker. otherwise, the servant shall continue to serve the first master. no man or woman may put their son or daughter to serve as an apprentice in a craft within any borough, but may send the child to school, unless he or she has land or rent to the value of 20s. per year. [because of scarcity of laborers and other servants of agriculture] no laborer may be hired by the week. masons may no longer congregate yearly, because it has led to violation of the statute of laborers. no games may be played by laborers because they lead to [gambling and] murders and robberies. apparel worn must be appropriate to one's status to preserve the industry of agriculture. the following list of classes shows the lowest class, which could wear certain apparel: 1. lords gold cloth, gold corses, sable fur, purple silk 2. knights velvet, branched satin, ermine fur 3. esquires and gentlemen with possessions to the value of 800s. per year, daughters of a person who has possessions to the value of 2,000s. a year damask, silk, kerchiefs up to 5s. in value. 4. esquires and gentlemen with possessions to the yearly value of 800s. 40 pounds fur of martron or letuse, gold or silver girdles, silk corse not made in the nation, kerchief up to 3s.4d in value 5. men with possessions of the yearly value of 40s. excluding the above three classes fustian, bustian, scarlet cloth in grain 6. men with possessions under the yearly value of 40s. excluding the first three classes black or white lamb fur, stuffing of wool, cotton, or cadas. 7. yeomen cloth up to the value of 2s., hose up to the value of 14s., a girdle with silver, kerchief up to 12d. 8. servants of agriculture, laborer, servant, country craftsman none of the above clothes gowns and jackets must cover the entire trunk of the body, including the private parts. shoes may not have pikes over two inches. every town shall have at its cost a common balance with weights according to the standard of the exchequer. all citizens may weigh goods for free. all cloth to be sold shall be sealed according to this measure. there is a standard bushel of grain throughout the nation. there are standard measures for plain tile, roof tile, and gutter tile throughout the nation. no gold or silver may be taken out of the nation. the price of silver is fixed at 30s. for a pound, to increase the value of silver coinage, which has become scarce due to its higher value when in plate or masse. a designee of the king will inspect and seal cloth with lead to prevent deceit. cloth may not be tacked together before inspection. no cloth may be sold until sealed. heads of arrows shall be hardened at the points with steel and marked with the mark of the arrowsmith who made it, so they are not faulty. shoemakers and cordwainers may tan their leather, but all leather must be inspected and marked by a town official before it is sold. cordwainers shall not tan leather [to prevent deceitful tanning]. tanners who make a notorious default in leather which is found by a cordwainer shall make a forfeiture. defective embroidery for sale shall be forfeited. no fishing net may be fastened or tacked to posts, boats, or anchors, but may be used by hand, so that fish are preserved and vessels may pass. no one may import any articles which could be made in the nation, including silks, bows, woolen cloths, iron and hardware goods, harness and saddlery, except printed books. the following merchandise shall not be brought into the nation already wrought: woolen cloth or caps, silk laces, ribbons, fringes, and embroidery, gold laces, saddles, stirrups, harnesses, spurs, bridles, gridirons, locks, hammers, fire tongs, dripping pans, dice, tennis balls, points, purses, gloves, girdles, harness for girdles of iron steel or of tin, any thing wrought of any treated leather, towed furs, shoes, galoshes, corks, knives, daggers, woodknives, thick blunt needles, sheers for tailors, scissors, razors, sheaths, playing cards, pins, pattens [wooden shoes on iron supports worn in wet weather], pack needles, painted ware, forcers, caskets, rings of copper or of gilt sheet metal, chaffing dishes, hanging candlesticks, chaffing balls, mass bells, rings for curtains, ladles, skimmers, counterfeit felt hat moulds, water pitchers with wide spouts, hats, brushes, cards for wool, white iron wire, upon pain of their forfeiture. one half this forfeiture goes to the king and the other half to the person seizing the wares. no sheep may be exported, because being shorn elsewhere would deprive the king of customs. no wheat, rye, or barley may be imported unless the prices are such that national agriculture is not hurt. clothmakers must pay their laborers, such as carders and spinsters, in current coin and not in pins and girdles and the like. the term "freemen" in the magna carta includes women. the election of a knight from a county to go to parliament shall be proclaimed by the sheriff in the full county so all may attend and none shall be commanded to do something else at that time. election is to be by majority of the votes and its results will be sealed and sent to parliament. electors and electees to parliament must reside in the county or be citizens or burgesses of a borough. to be an elector to parliament, a knight must reside in the county and have a freehold of land or tenements there of the value of at least 40s. per year, because participation in elections of too many people of little substance or worth had led to homicides, assaults, and feuds. (these "yeomen" were about one sixth of the population. most former electors and every leaseholder and every copyholder were now excluded. those elected for parliament were still gentry chosen by substantial freeholders.) london ordinances forbade placing rubbish or dung in the thames river or any town ditch or casting water or anything else out of a window. the roads were maintained with tolls on carts and horses bringing victuals or grains into the city and on merchandise unloaded from ships at the port. no carter shall drive his cart more quickly when it is unloaded than when it is loaded. no pie bakers shall sell beef pies as venison pies, or make any meat pie with entrails. to assist the poor, bread and ale shall be sold by the farthing. desertion by a soldier is penalized by forfeiture of all land and property. the common law held that a bailee is entitled to possession against all persons except the owner of the bailed property. former justice sir thomas littleton wrote a legal textbook describing tenancies in dower; the tenures of socage, knight's service, serjeanty, and burgage; estates in fee simple, fee tail, and fee conditional; inheritance and alienation of land. for instance, "also, if feoffment be made upon such condition, that if the feoffor pay to the feofee at a certain day, etc., 800s. forty pounds of money, that then the feoffor may reenter, etc., in this case the feoffee is called tenant in mortgage, ... and if he doth not pay, then the land which he puts in pledge upon condition for the payment of the money is gone from him for ever, and so dead as to the tenant, etc." joint tenants are distinguished from tenants in common by littleton thus: "joint-tenants are, as if a man be seised of certain lands or tenements, etc., and thereof enfeoffeth two, or three, or four, or more, to have and to hold to them (and to their heirs, or letteth to them) for term of their lives, or for term of another's life; by force of which feoffment or lease they are seised, such are joint-tenants. ... and it is to be understood, that the nature of joint-tenancy is, that he that surviveth shall have solely the entire tenancy, according to such estate as he hath, ..." "tenants in common are they that have lands or tenements in fee-simple, fee-tail, or for term of life, etc., the which have such lands and tenements by several title, and not by joint title, and neither of them knoweth thereof his severalty, but they ought by the law to occupy such lands or tenements in common pro indiviso [undivided], to take the profits in common. ...as if a man enfeoff two joint-tenants in fee, and the one of them alien that which to him belongeth to another in fee, now the other joint-tenant and the alienee are tenants in common, because they are in such tenements by several titles, ..." there are legal maxims and customs of ancient origin which have become well established and known though not written down as statutes. some delineated by christopher st. germain in "doctor and student" in 1518 are: 1. the spouse of a deceased person takes all personal and real chattels of the deceased. 2. for inheritance of land, if there are no descendant children, the brothers and sisters take alike, and if there are none, the next blood kin of the whole blood take, and if none, the land escheats to the lord. land may never ascend from a son to his father or mother. 3. a child born before espousals is a bastard and may not inherit, even if his father is the husband. 3. if a middle brother purchases lands in fee and dies without heirs of his body, his eldest brother takes his lands and not the younger brother. the next possible heir in line is the younger brother, and the next after him, the father's brother. 4. for lands held in socage, if the heir is under 14, the next friend to the heir, to whom inheritance may not descend, shall have the ward of his body and lands until the heir is 14, at which time the heir may enter. 5. for lands held by knight's service, if the heir is under 14, then the lord shall have the ward and marriage of the heir until the heir is 21, if male, or 14 (changed to 16 in 1285), if female. when of age, the heir shall pay relief. 6. a lease for a term of years is a real chattel rather than a free tenement, and may pass without livery of seisin. 7. he who has possession of land, though it is by disseisin, has right against all men but against him who has right. 8. if a tenant is past due his rent, the lord may distrain his beasts which are on the land. 9. all birds, fowls, and wild beasts of the forest and warren are excepted out of the law and custom of property. no property may be had of them unless they are tame. however, the eggs of hawks and herons and the like belong to the man whose land they are on. 10. if a man steals goods to the value of 12d., or above, it is felony, and he shall die for it. if it is under the value of 12d., then it is but petit larceny, and he shall not die for it, but shall be punished at the discretion of the judges. this not apply to goods taken from the person, which is robbery, a felony punishable by death. 11. if the son is attainted [convicted of treason or felony with the death penalty and forfeiture of all lands and goods] in the life of the father, and after he purchases his charter of pardon of the king, and after the father dies; in this case the land shall escheat to the lord of the fee, insomuch that though he has a younger brother, yet the land shall not descend to him: for by the attainder of the elder brother the blood is corrupt, and the father in the law died without heir. 12. a man declared outlaw forfeits his profits from land and his goods to the king. 13. he who is arraigned upon an indictment of felony shall be admitted, in favor of life, to challenge thirty-five inquirers (three whole inquests would have thirty-six) peremptorily. with cause, he may challenge as many as he has cause to challenge if he can prove it. such peremptory challenge shall not be admitted in a private suit. 14. an accessory shall not be put to answer before the principal. 15. if a man commands another to commit a trespass, and he does it, the one who made the command is a trespasser. 16. the land of every man is in the law enclosed from other, though it lies in the open field, and a trespasser in it may be brought to court. 17. every man is bound to make recompense for such hurt as his beasts do in the growing grain or grass of his neighbor, though he didn't know that they were there. 18. if two titles are concurrent together, the oldest title shall be preferred. 19. he who recovers debt or damages in the king's court when the person charged is not in custody, may within a year after the judgment take the body of the defendant, and commit him to prison until he has paid the debt and damages. 20. if the demandant or plaintiff, hanging his writ (writ pending in court), will enter into the thing demanded, his writ shall abate. 21. by the alienation of the tenant, hanging the writ, or his entry into religion, or if he is made a knight, or she is a woman and takes a husband hanging the writ, the writ shall not abate. 22. the king may disseise no man and no man may disseise the king, nor pull any reversion or remainder out of him. judicial procedure the prohibition against maintenance was given penalties in 1406 of 100s. per person for a knight or lower giving livery of cloth or hats, and of 40s. for the receiver of such. a person who brought such suit to court was to be given half the penalty. the justices of assize and king's bench were authorized to inquire about such practices. the statute explicitly included ladies and any writing, oath, or promise as well as indenture. excepted were guilds, fraternities, and craftsmen of cities and boroughs which were founded on a good purpose, universities, the mayor and sheriffs of london, and also lords, knights, and esquires in time of war. a penalty of one year in prison without bail was given. in 1468, there was a penalty of 100s. per livery to the giver of such, 100s. per month to the retainer or taker of such, and 100s. per month to the person retained. still this law was seldom obeyed. people took grievances outside the confines of the rigid common law to the chancellor, who could give equitable remedies under authority of a statute of 1285 (described in chapter 8). the chancery heard many cases of breach of faith in the "use", a form of trust in which three parties were involved: the holder of land, feofees to whom the holder had made it over by conveyance or "bargain and sale", and the beneficiary or receiver of the profits of the land, who was often the holder, his children, relatives, friends, an institution, or a corporation. this system of using land had been created by the friars to get around the prohibition against holding property. lords and gentry quickly adopted it. the advantages of the use were that 1) there was no legal restriction to will away the beneficial interest of the use although the land itself could not be conveyed by will; 2) it was hard for the king to collect feudal incidents because the feoffees were often unknown 3) the original holder was protected from forfeiture of his land in case of conviction of treason if the crown went to someone he had not supported. chancery gave a remedy for dishonest or defaulting feofees. chancery also provided the equitable relief of specific performance in disputes over agreements, for instance, conveyance of certain land, whereas the common law courts awarded only monetary damages by the writ of covenant. chancery ordered accounts to be made in matters of foreign trade because the common law courts were limited to accounts pursuant to transactions made within the nation. it also involved itself in the administration of assets and accounting of partners to each other. the chancellor took jurisdiction of cases of debt, detinue, and account which had been decided in other courts with oath-helping by the defendant. he did not trust the reliance on friends of the defendant swearing that his statement made in his defense was true. an important evidentiary difference between procedures of the chancery and the common law courts was that the chancellor could orally question the plaintiff and the defendant under oath. he also could order persons to appear at his court by subpoena [under pain of punishment, such as a heavy fine]. whereas the characteristic award of the common law courts was seisin of land or monetary damages, chancery often enjoined certain action. because malicious suits were a problem, the chancery identified such suits and issued injunctions against taking them to any court. the chancery was given jurisdiction by statute over men of great power taking by force women who had lands and tenements or goods and not setting them free unless they bound themselves to pay great sums to the offenders or to marry them. a statute also gave chancery jurisdiction over servants taking their masters' goods at his death. justices of the peace, appointed by the crown, investigated all riots and arrested rioters, by authority of statute. if they had departed, the justices certified the case to the king. the case was then set for trial first before the king and his council and then at the king's bench. if the suspected rioters did not appear at either trial, they could be convicted for default of appearance. if a riot was not investigated and the rioters sought, the justice of the peace nearest forfeited 2,000s. justices of the peace were not paid. for complex cases and criminal cases with defendants of high social status, they deferred to the justices of assize, who rode on circuit once or twice a year. since there was no requirement of legal knowledge for a justice of the peace, many referred to the "boke of the justice of the peas" compiled about 1422 for them to use. manor courts still formally admitted new tenants, registered titles, sales of land and exchanges of land, and commutation of services, enrolled leases and rules of succession, settled boundary disputes, and regulated the village agriculture. all attorneys shall be examined by the royal justices for their learnedness in the law and, at their discretion, those that are good and virtuous shall be received to make any suit in any royal court. these attorneys shall be sworn to serve well and truly in their offices. attorneys may plead on behalf of parties in the hundred courts. a qualification for jurors was to have an estate to one's own use or one of whom other persons had estates of fee simple, fee tail, or freehold in lands and tenements, which were at least 40s. per year in value. in a plea of land worth at least 40s. yearly or a personal plea with relief sought at least 800s., jurors had to have land in the bailiwick to the value of at least 400s., because perjury was considered less likely in the more sufficient men. in criminal cases, there were many complaints made that the same men being on the grand assize and petty assize was unfair because prejudicial. so it became possible for a defendant to challenge an indictor for cause before the indictor was put on the petty assize. then the petty assize came to be drawn from the country at large and was a true petty or trial jury. jurors were separated from witnesses. justices of the peace were to have lands worth 267s. yearly, because those with less had used the office for extortion and lost the respect and obedience of the people. a sheriff was not to arrest, but to transfer indictments to the justices of the peace of the county. he had to reside in his bailiwick. the sheriff could be sued for misfeasance such as bribery in the king's court. impeachment was replaced with bill of attainder during the swift succession of parliaments during the civil war. this was a more rapid and efficient technique of bringing down unpopular ministers or political foes. there was no introduction of evidence, nor opportunity for the person accused to defend himself, nor any court procedure, as there was with impeachment. an example of a case of common law decided by court of king's bench is russell's case (1482) as follows: in the king's bench one thomas russell and alice his wife brought a writ of trespass for goods taken from alice while she was single. the defendant appeared and pleaded not guilty but was found guilty by a jury at nisi prius, which assessed the damages at 20 pounds. before the case was next to be heard in the king's court an injunction issued out of the chancery to the plaintiffs not to proceed to judgment, on pain of 100 pounds, and for a long time judgment was not asked for. then hussey cjkb. asked spelman and fincham, who appeared for the plaintiff if they wanted to ask for judgment according to the verdict. fincham [p]: we would ask for judgment, except for fear of the penalty provided for in the injunction, for fear that our client will be imprisoned by the chancellor if he disobeys. fairfax, jkb: he can ask for judgment in spite of the injunction, for if it is addressed to the plaintiff his attorney can ask for judgment, and vice versa. hussey, cjkb: we have consulted together on this matter among ourselves and we see no harm which can come to the plaintiff if he proceeds to judgment. the law will not make him pay the penalty provided in the injunction. if the chancellor wants to imprison him he must send him to the fleet prison, and, as soon as you are there you will inform us and we shall issue a habeas corpus returnable before us, and when you appear before us we shall discharge you, so you will not come to much harm, and we shall do all we can for you. nevertheless, fairfax said he would go to the chancellor and ask him if he would discharge the injunction. and they asked for judgment and it was held that they should recover their damages as assessed by the jury, but they would not give judgment for damages caused by the vexation the plaintiff suffered through the chancery injunction. and they said that if the chancellor would not discharge the injunction, they would give judgment if the plaintiff would ask for it. an example of a petition to chancery in the 15th century is hulkere v. alcote, as follows: to the right reverend father in god and gracious lord bishop of bath, chancellor of england, your poor and continual bedwoman lucy hulkere, widow of westminster, most meekly and piteously beseeches: that whereas she has sued for many years in the king's bench and in the common pleas for withholding diverse charters and evidences of land, leaving and delaying her dower of the manor of manthorpe in lincolnshire and also of the manor of gildenburton in northamptonshire, together with the withdrawing of her true goods which her husband gave her on his deathbed to the value of 100 pounds and more, under record of notary, sued against harry alcote and elizabeth of the foresaid gildenburton within the same county of northampton. and by collusion and fickle counsel of the foresaid harry and elizabeth his mother there was led and shown for him within the common pleas a false release, sealed, to void and exclude all her true suit by record of true clerks and attorneys of the aforesaid common pleas. of the which false release proved she has a copy to show. [all this is] to her great hindrance and perpetual destruction unless she have help and remedy by your righteous and gracious lordship in this matter at this time. that it please your noble grace and pity graciously to grant a writ subpoena to command the foresaid henry alcote and elizabeth alcote to come before your presence by a certain day by you limited in all haste that they may come to westminster to answer to this matter abovesaid, for love of god and a deed of charity, considering graciously that the foresaid harry alcote, with another fellow of his affinity who is not lately hanged for a thief in franceled her into a garden at gildenburton and put her down on the ground, laying upon her body a board and a summer saddle and great stones upon the board, the foresaid harry alcote sitting across her feet and the other at her head for to have slain her and murdered her, and by grace of our lady her motherin-law out walking heard a piteous voice crying and by her goodness she was saved and delivered, and otherwise would be dead. pledges to prosecute: john devenshire of berdevyle in essex and james kelom of london. returnable in michaelmas term. chapter 11 the times: 1485-1509 henry tudor and other exiles defeated and killed richard iii on bosworth field, which ends the civil war of the roses between the lancaster and york factions. as king, henry vii restored order to the nation. he was readily accepted as king because he was descended from the lancaster royal line and he married a woman from the york royal line. henry was intelligent and sensitive. he weighed alternatives and possible consequences before taking action. he was convinced by reason on what plans to make. his primary strategy was enacting and enforcing statutes to shore up the undermined legal system, which includes the establishment of a new court: the court of the star chamber, to obtain punishment of persons whom juries were afraid to convict. it had no jury and no grand jury indictment. for speed and certainty, it tried people "ex officio": by virtue of its office. suspects were required to take an oath ex officio, by which they swore to truthfully answer all questions put to them. a man could not refuse to answer on the grounds of self-incrimination. the star chamber was the room in which the king's council had met since the 1300s. in his reign of 24 years, henry applied himself diligently to the details of the work of government to make it work well. he strengthened the monarchy, shored up the legal system to work again, and provided a peace in the land in which a renaissance of the arts and sciences, culture, and the intellectual life could flourish. the most prevalent problems were: murder, robbery, rape or forced marriage of wealthy women, counterfeiting of coin, extortion, misdemeanors by sheriffs and escheators, bribing of sheriffs and jurors, perjury, livery and maintenance agreements, idleness, unlawful plays, and riots. interference with the course of justice was not committed only by lords on behalf of their retainers; men of humbler station were equally prone to help their friends in court or to give assistance in return for payment. rural juries were intimidated by the old baronage and their armed retinues. juries in municipal courts were subverted by gangs of townsmen. justices of the peace didn't enforce the laws. the agricultural work of the nation had been adversely affected. henry made policy with the advice of his council and had parliament enact it into legislation. he dominated parliament by having selected most of its members. many of his council were sons of burgesses and had been trained in universities. he chose competent and especially trusted men for his officers and commanders of castles and garrison. the fact that only the king had artillery deterred barons from revolting. also, the baronial forces were depleted due to civil war of the roses. if henry thought a magnate was exercising his territorial power to the king's detriment, he confronted him with an army and forced him to bind his whole family in recognizances for large sums of money to ensure future good conduct. since the king had the authority to interpret these pledges, they were a formidable check on any activity which could be considered to be disloyal. the earl of kent, whose debts put him entirely at the king's mercy, was bound to "be seen daily once in the day within the king's house". henry also required recognizances from men of all classes, including clergy, captains of royal castles, and receivers of land. the higher nobility now consisted of about twenty families. the heavy fines by the star court put an end to conspiracies to defraud, champerty [an agreement with a litigant to pay costs of litigation for a share in the damages awarded], livery, and maintenance. the ties between the nobility and the justices of the peace had encouraged corruption of justice. so henry appointed many of the lesser gentry and attorneys as justices of the peace. also he appointed a few of his councilors as nonresident justices of the peace. there were a total of about thirty justices of the peace per county. their appointments were indefinite and most remained until retirement or death. henry instituted the yeomen of the guard to be his personal bodyguards night and day. many bills of attainder caused lords to lose their land to the king. most of these lords had been chronic disturbers of the peace. henry required retainers to be licensed, which system lasted until about 1600. henry was also known to exhaust the resources of barons he suspected of disloyalty by accepting their hospitality for himself and his household for an extended period of time. henry built up royal funds by using every available procedure of government to get money, by maximizing income from royal estates by transferring authority over them from the exchequer to knowledgeable receivers, and from forfeitures of land and property due to attainders of treason. he also personally reviewed all accounts and initialed every page, making sure that all payments were made. he regularly ordered all men with an income of 800s. [40 pounds] yearly from lands or revenue in hand to receive knighthoods, which were avoided by those who did not want to fight, or pay a high fee. as a result, the crown became rich and therefore powerful. henry's queen, elizabeth, was a good influence on his character. her active beneficence was a counteracting influence to his avaricious predisposition. when henry and his queen traveled through the nation, they often stopped to talk to the common people. they sometimes gave away money, such as to a man who had lost his hand. henry paid for an intelligent boy he met to go to school. henry had the first paper mill erected in the nation. he fostered the reading of books and the study of roman law, the classics, and the bible. he had his own library and gave books to other libraries. the age of entry to university was between 13 and 16. it took four years' study of grammar, logic, and rhetoric to achieve the bachelor of arts degree and another five before a master could begin a specialized study of the civil law, canon law, theology, or medicine. arabic numbers replaced roman numerals, making easy multiplication and division possible. humanist studies were espoused by individual scholars at the three centers of higher learning: oxford university, cambridge university, and the inns of court in london. the inns of court attracted the sons of gentry and merchants pursuing practical and social accomplishments. the text of 'readings' to members of the inns survive from this time. in the legalistic climate of these times, attorneys were prosperous. the enclosure of land by hedges for sheep farming continued, especially by rich merchants who bought country land for this purpose. often this was land that had been under the plough. any villeins were given their freedom and they and the tenants at will were thrown off it immediately. that land held by copyholders of land who had only a life estate, was withheld from their sons. only freeholders and copyholders with the custom of the manor in their favor were secure against eviction. but they could be pressured to sell by tactics such as breeding rabbits or keeping geese on adjoining land to the detriment of their crops, or preventing them from taking their traditional short cuts across the now enclosed land to their fields. the real line of distinction between rural people was one of material means instead of legal status: free or unfree. on one extreme was the well-to-do yeoman farmer farming his own land. on the other extreme was the agricultural laborer working for wages. henry made several proclamations ordering certain enclosures to be destroyed and tillage to be restored. other land put to use for sheep breeding was waste land. there were three sheep to every person. the nearby woodlands no longer had wolves or lynx who could kill the sheep. bears and elk are also gone. there were still deer, wild boar, wildcats and wild cattle in vast forests for the lords to hunt. wood was used for houses, arms, carts, bridges, and ships. the villages were still isolated from each other, so that a visitor from miles away was treated as warily as a foreigner. most people lived and died where they had been born. a person's dialect indicated his place of origin. the life of the village still revolved around the church. in some parishes, its activities were highly organized, with different groups performing different functions. for example, the matrons looked after a certain altar; the maidens raised money for a chapel or saw to the gilding of the images; the older men collected money for church repair; and the younger men organized the church ales and the church plays. wills often left property or rents from leased land to the church. cows and sheep given could be leased out to villagers. buildings given could be leased out, turned over to the poor, used to brew ale or bake bread for church ales, or used in general as a place for church activities. church ales would usually a good source of income; alehouses would be closed during the ceremonies and parishioners would contribute malt for the ale and grain, eggs, butter, cheese, and fruits. the largest town, london, had a population of about 70,000. other towns had a population less than 20,000. the population was increasing, but did not reach the level of the period just before the black death. in most large towns, there were groups of tailors and hatmakers, glovers, and other leatherworkers. some towns had a specialization due to their proximity to the sources of raw materials, such as nails, cutlery, and effigies and altars. despite the spread of wool manufacturing to the countryside, there was a marked increase of industry and prosperity in the towns. the principal streets of the larger towns were paved with gravel. guild halls became important and imposing architecturally. a large area of london was taken up by walled gardens of the monasteries and large mansions. there were some houses of stone and timber and some mansions of brick and timber clustered around palaces. in these, bedrooms increased in number, with rich bed hangings, linen sheets, and bolsters. bedspreads were introduced. nightgowns were worn. fireplaces became usual in all the rooms. tapestries covered the walls. carpets were used in the private rooms. some of the great halls had tiled floors. the old trestle tables were replaced by tables with legs. benches and stools had backs to lean on. women and men wore elaborate headdresses. there are guilds of ironmongers, salters, and haberdashers [hats and caps]. on the outer periphery are mud and straw taverns and brothels. houses are beginning to be built outside the walls along the thames because the collapse of the power of the great feudal lords decreased the fear of an armed attack on london. the merchants introduced this idea of living at a distance from the place of work so that they could escape living in the narrow, damp, and dark lanes of the city and have more light and space. indeed no baronial army ever threatened the king again. east of london were cattle pastures, flour mills, bakers, cloth-fulling mills, lime burners, brick and tile makers, bell founders, and ship repairing. there was a drawbridge on the south part of london bridge for defense and to let ships through. water sports were played on the thames such as tilting at each other with lances from different boats. the tailors' and linen armorers' guild received a charter in 1503 from the king as the "merchant tailors" to use all wares and merchandise, especially wool cloth, as well wholesale as retail, throughout the nation. some schooling was now being made compulsory in certain trades; the goldsmiths' company made a rule that all apprentices had to be able to read and write. a yeoman was the second-rank person of some importance, below a knight, below a gentleman, below a full member of a guild. in london, it meant the journeyman or second adult in a small workshop. these yeomen had their own fraternities and were often on strike. some yeomen in the large london industries, e.g. goldsmiths, tailors, cloth workers, who had served an apprenticeship started their own businesses in london suburbs outside the jurisdiction of their craft to search them. the merchant adventurers created a london fellowship confederacy to make membership of their society and compliance with its regulations binding on all cloth traders and to deal with common interests and difficulties such as taxation, relations with rulers, and dangers at sea. they made and enforced trading rules, chartered fleets, and organized armed convoys when the seas were unsafe and coordinated policies with henry vii. membership could be bought for a large fee or gained by apprenticeship or by being the son of a member. foreign trade was revived because it was a period of comparative peace. the nation sought to sell as much as possible to foreign nations and to buy at little as possible and thereby increase its wealth in gold and silver, which could be used for currency. ships weighed 200 tons and had twice the cargo space they had previously. their bows were more pointed and their high prows made them better able to withstand gales. the mariners' compass with a pivoting needle and circular dial with a scale was introduced. the scale gave precision to directions. ships had three masts. on the first was a square sail. on the second was a square sail with a small rectangular sail above it. on the third was a three cornered lateen sail. these sails make it possible to sail in almost any direction. this opened the seas of the world to navigation. at this time navigators kept their knowledge and expertise secret from others. adventurous seamen went on voyages of discovery, such as john cabot to north america in 1497, following italian christopher columbus' discovery of the new world in 1492. ferdinand magellan of portugal circumnavigated the world in 1519, proving uncontrovertedly that the earth was spherical rather than flat. sailors overcame their fear of tumbling into one of the openings into hell that they believed were far out into the atlantic ocean and ceased to believe that a red sunset in the morning was due to a reflection from hell. seamen could venture forth into the darkness of the broad atlantic ocean with a fair expectation of finding their way home again. they gradually learned that there were no sea serpents or monsters that would devour foolhardy mariners. they learned to endure months at sea on a diet of salt beef, beans, biscuits, and stale water and the bare deck for a bed. but there were still mutinies and disobedient pilots. mortality rates among seamen were high. theologians had to admit that jerusalem was not the center of the world. there are more navy ships, and they have some cannon. the blast furnace was introduced in the iron industry. a blast of hot air was constantly forced from a stove into the lower part of the furnace which was heating at high temperature a mixture of the iron ore and a reducing agent that combined with the oxygen released. after the iron was extracted, it was allowed to harden and then reheated and hammered on an anvil to shape it and to force out the hard, brittle impurities. blast furnace heat was maintained by bellows worked by water wheels. alchemists sought to make gold from the baser metals and to make a substance that would give them immortality. there was some thought that suffocation in mines, caverns, wells, and cellars was not due to evil spirits, but to bad air such as caused by "exhalation of metals". in 1502, german peter henlein invented the pocket watch and the mainspring inside it. there were morality plays in which the seven deadly sins: pride, covetousness, lust, anger, gluttony, envy, and sloth, fought the seven cardinal virtues: faith, hope, charity, prudence, temperance, justice, and strength, respectively, for the human soul. the play "everyman" demonstrates that every man can get to heaven only by being virtuous and doing good deeds in his lifetime. it emphasizes that death may come anytime to every man, when his deeds will be judged as to their goodness or sinfulness. card games were introduced. the legend of robin hood was written down. the commons gained the stature of the lords and statutes were regularly enacted by the "assent of the lords spiritual and temporal and the commons", instead of at the request of the commons. the law royal proclamations clarifying, refining or amplifying the law had the force of parliamentary statutes. in 1486, he proclaimed that "forasmuch as many of the king our sovereign lord's subjects [have] been disposed daily to hear feigned, contrived, and forged tidings and tales, and the same tidings and tales, neither dreading god nor his highness, utter and tell again as though they were true, to the great hurt of divers of his subjects and to his grievous displeasure: therefore, in eschewing of such untrue and forged tidings and tales, the king our said sovereign lord straitly chargeth and commandeth that no manner person, whatsoever he be, utter nor tell any such tidings or tales but he bring forth the same person the which was author and teller of the said tidings or tales, upon pain to be set on the pillory, there to stand as long as it shall be thought convenient to the mayor, bailiff, or other official of any city, borough, or town where it shall happen any such person to be taken and accused for any such telling or reporting of any such tidings or tales. furthermore the same our sovereign lord straitly chargeth and commandeth that all mayors, bailiffs, and other officers diligently search and inquire of all such persons tellers of such tidings and tales not bringing forth the author of the same, and them set on the pillory as it is above said." he also proclaimed in 1487 that no one, except peace officers, may carry a weapon, e.g. bows, arrows, or swords, in any town or city unless on a journey. he proclaimed in 1498 that no one may refuse to receive silver pennies or other lawful coin as payment regardless of their condition as clipped, worn, thin, or old, on pain of imprisonment and further punishment. statutes included: lords holding castles, manors, lands and tenements by knight's service of the king shall have a writ of right for wardship of the body as well as of the land of any minor heir of a deceased person who had the use [beneficial enjoyment] of the land for himself and his heirs as if the land had been in the possession of the deceased person. and if such an heir is of age, he shall pay relief to the lord as if he had inherited possession of the land. an heir in ward shall have an action of waste against his lord as if his ancestor had died seised of the land. that is, lands of "those who use" shall be liable for execution of his debt and to the chief lord for his relief and heriot, and if he is a bondsman, they may be seized by the lord. the king tried to retain the benefits of feudal incidents on land by this statute of uses, but attorneys sought to circumvent it by drafting elaborate and technical instruments to convey land free of feudal burdens. any woman who has an estate in dower, or for a term of life, or in tail, jointly with her husband, or only to herself, or to her use, in any manors, lands, tenements, or other hereditaments of the inheritance or purchase of her husband, or given to the said husband and wife in tail, or for term of life, by any of the ancestors of the said husband, or by any other person seised to the use of the said husband, or of his ancestors, who, by herself or with any after taken husband; discontinue, alienate, release, confirm with warranty or, by collusion, allow any recovery of the same against them or any other seised to their use, such action shall be void. then, the person to whom the interest, title, or inheritance would go after the death of such woman may enter and possess such premises. this does not affect the common law that a woman who is single or remarried may give, sell, or make discontinuance of any lands for the term of her life only. all deeds of gift of goods and chattels made of trust, to the use of the giver [grantor and beneficiary of trust], to defraud creditors are void. it is a felony to carry off against her will, a woman with lands and tenements or movable goods, or who is heir-apparent to an ancestor. this includes taking, procuring, abetting, or knowingly receiving a woman taken against her will. a vagabond, idle, or suspected person shall be put in the stocks for three days with only bread and water, and then be put out of the town. if he returns, he shall spend six days in the stocks. (a few years later this was changed to one and three days, respectively.) every beggar who is not able to work, shall return to the hundred where he last dwelled, is best known, or was born and stay there. no one may take pheasants or partridges by net snares or other devices from his own warren [breeding ground], upon the freehold of any other person, or else forfeit 200s., one half to the owner of the land and the other half to the suer. no one may take eggs of any falcon, hawk, or swan out of their nest, whether it is on his land or any other man's land, on pain of imprisonment for one year and fine at the king's will, one half to the king, and the other half to the holder of the land, or owner of the swan. no man shall bear any english hawk, but shall have a certificate for any imported hawk, on pain for forfeiture of such. no one shall drive falcons or hawks from their customary breeding place to another place to breed or slay any for hurting him, or else forfeit 200s. after examination by a justice of the peace, one half going to the king and one half to the suer. any person without a forest of his own who has a net device with which to catch deer shall pay 200s. for each month of possession. anyone stalking a deer with beasts anywhere not in his own forest shall forfeit 200s. anyone taking any heron by device other than a hawk or long bow shall forfeit 6s.8d. no one shall take a young heron from its nest or pay 10s. for each such heron. two justices may decide such an issue, and one tenth of the fine shall go to them. no man shall shoot a crossbow except in defense of his house, other than a lord or one having 2,667s. of land because their use had resulted in too many deer being killed. (the longbow was not forbidden.) no beasts may be slaughtered or cut up by butchers within the walls of a town, or pay 12d. for every ox and 8d. for every cow or other beast, so that people will not be annoyed and distempered by foul air, which may cause them sickness. no tanner may be a currier [dressed, dyed, and finished tanned leather] and no currier may be a tanner. no shoemaker [cordwainer] may be a currier and no currier may be a shoemaker. no currier shall curry hides which have not been tanned. no tanner shall sell other than red leather. no tanner may sell a hide before it is dried. no tanner may tan sheepskins. no long bow shall be sold over the price of 3s.4d. good wood for making bows may be imported without paying customs. no grained cloth of the finest making shall be sold for more than 16s., nor any other colored cloth for more than 11s. per yard, or else forfeit 40s. for every yard so sold. no hat shall be sold for more than 20d. and no cap shall be sold for more than 2s.8d., or else forfeit 40s. for each so sold. silver may not be sold or used for any use but goldsmithery or amending of plate to make it good as sterling, so that there will be enough silver with which to make coinage. each feather bed, bolster, or pillow for sale shall be stuffed with one type of stuffing, that is, dry pulled feathers or with clean down alone, and with no sealed feathers nor marsh grass, nor any other corrupt stuffings. each quilt, mattress, or cushion for sale shall be stuffed with one type of stuffing, that is, clean wool, or clean flocks alone, and with no horsehair, marsh grass, neatshair, deershair, or goatshair, which is wrought in lime fats and gives off an abominable and contagious odor when heated by a man's body, on pain of forfeiture of such. salmon shall be sold by standard volume butts and barrels. large salmon shall be sold without any small fish or broken-bellied salmon and the small fish shall be packed by themselves only, or else forfeit 6s.8d. herring shall be sold at standard volumes. the herring shall be as good in the middle and in every part of the package as at the ends of the package, or else forfeit 3s.4d. eels shall be sold at standard volumes, and good eels shall not be mixed with lesser quality eels, or else forfeit 10s. the fish shall be packed in the manner prescribed or else forfeit 3s.4d. for each vessel. fustians shall always be shorn with the long shear, so that it can be worn for at least two years. if an iron or anything else used to dress such injures the cloth so that it wears out after four months, 20s. shall be forfeited for each default, one half to the king and the other half to the suer. pewter and brass ware for sale shall be of the quality of that of london and marked by its maker, on pain of forfeiture of such, and may be sold only at open fairs and markets or in the seller's home, or else forfeit 200s. if such false ware is sold, its maker shall forfeit its value, one half to the king and one half to the searchers. anyone using false weights of such wares shall forfeit 20s., one half to the king and one half to the suer, or if he cannot pay this fine, to be put in the stocks until market day and then be put in the pillory all the market time. no alien nor denizen [foreigner allowed to reside in the nation with certain rights and privileges] may carry out of the nation any raw wool or any woolen cloth which has not been barbed, rowed, and shorn. silk ribbons, laces, and girdles of silk may not be imported, since they can be made in the nation. no one shall import wine into the nation, but on english ships, or else forfeit the wine, one half to the king and one half to the seizer of the wine. no one may take out of the nation any [male] horse or any mare worth more than 6s.8s. or under the age of three years, upon pain of forfeiture of such. however, a denizen may take a horse for his own use and not to sell. this is to stop losing horses needed for defense of the nation and to stop the price of a horse from going up. freemen of london may go to fairs and markets with wares to sell, despite the london ordinance to the contrary. merchants residing in the nation but outside london shall have free access to foreign markets without exaction taken of more than 133s. sterling by the confederacy of london merchants, which have increased their fee so much, 400s., that merchants not in the confederacy have been driven to sell their goods in london for less than they would get at a foreign market. exacting more is punishable by a fine of 400s. and damages to the grieved party of ten times the excess amount taken. for the privilege of selling merchandise, a duty of scavage shall be taken of merchant aliens, but not of denizens. any town official who allows disturbing of a person trying to sell his merchandise because he has not paid scavage, shall pay a fine of 400s. coin clipped or diminished shall not be current in payment, but may be converted at the king's mint into plate or bullion. anyone refusing to take coins with only normal wear may be imprisoned by the mayor, sheriff, bailiff, constable or other chief officer. new coins, which have a circle or inscription around the outer edge, will be deemed clipped if this circle or inscription is interfered with. the penalty for usury is placement in the pillory, imprisonment for half a year, and a fine of 400s. (the penalty was later changed to one half thereof.) lawbooks in use at the inns of court included "the books of magna carta with diverse old statutes", "doctor and student" by st. germain, "grand abridgment" by fitzherbert, and "new natura brevium" by lombard. judicial procedure these changes in the judicial process were made by statute: the chancellor, treasurer, keeper of the king's privy seal, or two of them, with a bishop selected by them, and a temporal lord of the king's council selected by them, and the two chief justices of the king's bench shall constitute the court of the star chamber. it shall have the authority to call before it by writ or by privy seal anyone accused of "unlawful maintenances, giving of liveries, signs and tokens, and retainers by indentures, promises, oaths, writings, or otherwise embraceries of his subjects" and witnesses, and impose punishment as if convicted under due process of law. these laws shall now be enforced: if a town does not punish the murderer of a man murdered in the town, the town shall be punished. a town shall hold any man who wounds another in peril of death, until there is perfect knowledge whether the man hurt should live or die. upon viewing a dead body, the coroner should inquire of the killers, their abettors, and anyone present at the killing and certify these names. in addition, the murderer and accessories indicted shall be tried at the king's suit within a year of the murder, which trial will not be delayed until a private suit is taken. if acquitted at the king's suit, he shall go back to prison or let out with bail for the remainder of the year, in which time the slain man's wife or next of kin may sue. for every inquiry made upon viewing a slain body coroners shall be paid 13s.4d. out of the goods of the slayer or from a town not taking a murderer, but letting him escape. if the coroner does not make inquiry upon viewing a dead body, he shall be fined 100s. to the king. if a party fails to appear for trial after a justice has taken bail from him, a record of such shall be sent to the king. up to 1600, the star chamber heard many cases of forgery, perjury, riot, maintenance, fraud, libel, and conspiracy. it could mete out any punishment, except death or any dismemberment. this included life imprisonment, fines, pillory, whipping, branding, and mutilation. henry vii sat on it. if a justice of the peace does not act on any person's complaint, that person may take that complaint to another justice of the peace, and if there is no remedy then, he may take his complaint to a justice of assize, and if there is not remedy then, he may take his complaint to the king or the chancellor. there shall then be inquiry into why the other justices did not remedy the situation. if it is found that they were in default in executing the laws, they shall forfeit their commissions and be punished according to their demerits. justices of the peace shall make inquiry of all offenses in unlawful retaining, examine all suspects, and certify them to the king's bench for trial there or in the king's council, and the latter might also proceed against suspects on its own initiative on information given. perjury committed by unlawful maintenance, embracing, or corruption of officers, or in the chancery, or before the king's council, shall be punished in the discretion of the chancellor, treasurer, both the chief justices, and the clerk of the rolls. the star chamber, chancellor, king's bench and king and council have the power to examine all defendants, by oath or otherwise, to adjudge them convicted or attainted. they can also be found guilty by confession, examination, or otherwise. if a defendant denied doing the acts of which he is convicted, he was subject to an additional fine to the king and imprisonment. violations of statutes may be heard by the justices of assize or the justices of the peace, except treason, murder, and other felony. actions on the case shall be treated as expeditiously in the courts of the king's bench and common pleas as actions of trespass or debt. proclamation at four court terms of a levy of a fine shall be a final end to an issue of land, tenements, or other hereditaments and the decision shall bind persons and their heirs, whether they have knowledge or not of the decision, except for women-covert who were not parties, persons under the age of twenty-one, in prison, out of the nation, or not of whole mind, who are not parties. these may sue within five years of losing such condition. also, anyone not a party may claim a right, title, claim, or interest in the said lands, tenements, or other hereditaments at the time of such fine recorded, within five years after proclamations of the fine. a defendant who appeals a decision for the purpose of delaying execution of such shall pay costs and damages to the plaintiff for the delay. no sheriff, undersheriff, or county clerk shall enter any complaints in their books unless the complaining party is present. and no more complaints than the complaining party knows about shall be entered. the penalty is 40s. for each such false complaint, one half to the king and the other half to the suer after examination by a justice of the peace. this is to prevent extortion of defendants by false complaints. the justice shall certify this examination to the king, on pain of a fine of 40s. a bailiff of a hundred who does not do his duty to summon defendants shall pay a fine of 40s. for each such default, after examination by a justice of the peace. sheriffs' records of fines imposed and bailiffs' records of fines collected may be reviewed by a justice of the peace to examine for deceit. any sheriff allowing a prisoner to escape, whether from negligence or for a bribe, shall be fined, if the prisoner was indicted of high treason, at least 1,333s. for each escape. however, if the prisoner was in their keeping because of a suspicion of high treason, the fine shall be at least 800s.; and if indicted of murder or petite treason, at least 400s.; and if suspected of murder or petite treason, 200s.; and if suspected of other felonies, 100s. petite treason was that by a wife to her husband or a man to his lord. any person not responding to a summons for jury service shall be fined 12d. for the first default, and 2s. for the second, and double for each subsequent default. a pauper may sue in any court and be assigned a attorney at no cost to him. a justice of the peace to whom has been reported hunting by persons disguised with painted faces or visors or otherwise, may issue a warrant for the sheriff or other county officer to arrest such persons and bring them before the justice. such hunting in disguise or hunting at night or disobeying such warrant is a felony. this is to stop large mobs of disguised people from hunting together and then causing riots, robberies, and murders. benefit of clergy may be used only once, since this privilege has made clerics more bold in committing murder, rape, robbery, and theft. however, there will be no benefit of clergy in the case of murder of one's immediate lord, master, or sovereign. (this begins the gradual restriction of benefit of clergy until it disappears. also, benefit of clergy was often disregarded in unpeaceful times.) for an issue of riot or unlawful assembly, the sheriff shall call 24 jurors, each of lands and tenements at least 20s. of charter land or freehold or 26s.8d. of copyhold or of both. for each default of the sheriff, he shall pay 400s. and if the jury acquits, then the justice, sheriff, and under-sheriff shall certify the names of any jurors maintained or embraced and their misdemeanors, or else forfeit 400s. any person proved to be a maintainer or embracer shall forfeit 400s. to the king and be committed to ward. the principal leaders of any riot or unlawful assembly shall be imprisoned and fined and be bound to the peace with sureties at a sum determined by the justices of the peace. if the riot is by forty people or heinous, the justices of peace shall certify such and send the record of conviction to the king. the king's steward, treasurer, and comptroller have authority to question by twelve discreet persons any servant of the king about making any confederacies, compassings, conspiracies, or imaginations with any other person to destroy or murder the king or one of his council or a lord. trial shall be by twelve men of the king's household and punishment as by felony in the common law. when a land holder enfeoffs his land and tenements to people unknown to the remainderman in tail, so that he does not know who to sue, he may sue the receiver of the profits of the land and tenements for a remedy. and the receivers shall have the same advantages and defenses as the feoffees or as if they were tenants. and if any deceased person had the use for himself and his heirs, then any of his heirs shall have the same advantages and defenses as if his ancestor had died seised of the land and tenements. and all recoveries shall be good against all receivers and their heirs, and the feofees and their heirs, and the cofeoffees of the receivers and their heirs, as though the receivers were tenants indeed, or feofees to their use, or their heirs of the freehold of the land and tenements. if a person feoffs his land to other persons while retaining the use thereof for himself, it shall be treated as if he were still seised of the land. thus, relief and heriot will still be paid for land in socage. and debts and executions of judgments may be had upon the land and tenements. the penalty for not paying customs is double the value of the goods. the town of london shall have jurisdiction over flooding and unlawful fishing nets in that part of the thames river that flows next to it. the city of london shall have jurisdiction to enforce free passage of boats on the thames river in the city, interruption of which carries a fine of 400s., two-thirds to the king and one third to the suer. jurors impaneled in london shall be of lands, tenements, or goods and chattels, to the value of 133s. and if the case concerns debt or damages at least 133s, the jurors shall have lands, tenements, goods, or chattels, to the value of 333s. this is to curtail the perjury that has gone on with jurors of little substance, discretion, and reputation. a party grieved by a false verdict of any court in london may appeal to the hustings court of london, which hears common pleas before the mayor and aldermen. each of the twelve alderman shall pick from his ward four jurors of the substance of at least 2,000s. to be impaneled. if twenty-four of them find that the jurors of the petty jury has given an untrue verdict, each such juror shall pay a fine of at least 400s. and imprisonment not more than six months without release on bail or surety. however, if it is found that the verdict was true, then the grand jury may inquire if any juror was bribed. if so, such juror bribed and the defendant who bribed him shall each pay ten times the amount of the bribe to the plaintiff and be imprisoned not more than six months without release on bail or surety. other changes in the judicial process were made by court decision. for instance, the royal justices decided that only the king could grant sanctuary for treason and not the church. after this, the church withdrew the right of sanctuary from second time offenders. the king's council has practically limited itself to cases in which the state has an interest, especially the maintenance of public order. chancery became an independent court rather than the arm of the king and his council. in chancery and the king's bench, the intellectual revival brought by humanism inspires novel procedures to be devised to meet current problems in disputed titles to land, inheritance, debt, breach of contract, promises to perform acts or services, deceit, nuisance, defamation, and the sale of goods. a new remedy is specific performance, that is, performance of an act rather than money damages. evidence is now taken from witnesses. various courts had overlapping jurisdiction. for instance, trespass could be brought in the court of common pleas because it was a civil action between two private persons. it could also be brought in the court of the king's bench because it broke the king's peace. it was advantageous for a party to sue for trespass in the king's court because there a defendant could be made to pay a fine to the king or be imprisoned, or declared outlaw if he did not appear at court. a wrongful step on the defendant's land, a wrongful touch to his person or chattels could be held to constitute sufficient force and an adequate breach of the king's peace to sustain a trespass action. a new form of action is trespass on the case, which did not require the element of force or of breach of the peace that the trespass offense requires. trespass on the case [or "case" for short] expands in usage to cover many types of situations. stemming from it is "assumpsit", which provided damages for breach of an oral agreement and a written agreement without a seal. parliament's supremacy over all regular courts of law was firmly established and it was called "the high court of parliament", paradoxically, since it came to rarely function as a law court. the humanist intellectual revival also caused the church courts to try to eliminate contradictions with state law, for instance in debt, restitution, illegitimacy, and the age of legal majority. the bishop's court in london had nine offenders a week by 1500. half of these cases were for adultery and sexual offenses, and the rest were for slander, blasphemy, missing church services, and breach of faith. punishment was penance by walking barefoot before the cross in the sunday procession dressed in a sheet and holding a candle. chapter 12 the times: 1509-1558 renaissance humanism came into being in the nation. in this development, scholars in london, oxford, and cambridge emphasized the value of classical learning, especially platonism and the study of greek literature as the means of better understanding and writing. they studied the original greek texts and became disillusioned with the filtered interpretations of the church, for example of the bible and aristotle. there had long been displeasure with the priests of the church. they were supposed to preach four times yearly, visit the sick, say the daily liturgies, and hear confessions at least yearly. but there were many lapses. many were not celibate, and some openly lived with a woman and had children. complaints about them included not residing within their parish community, doing other work such as raising crops, and taking too much in probate, mortuary fees, and marriage fees. probate fees had risen from at most 5s. to 60s. in the last hundred years. mortuary fees ranged from 1/3 to 1/9 of a deceased person's goods. sanctuary was abused. people objected to the right of arrest by ecclesiastical authorities. also, most parish priests did not have a theology degree or even a bachelor's degree, as did many laymen. in fact, many laymen were better educated than the parish priests. no one other than a laborer was illiterate in the towns. humanist grammar [secondary] schools were established in london by merchants and guilds. in 1510, the founder and dean of st. paul's school placed its management in the hands of london "citizens of established reputation" because he had lost confidence in the good faith of priests and noblemen. the sons of the nobility, attorneys, and merchants were starting to go to grammar school now instead of being taught at home by a tutor. at school, they mingled with sons of yeomen, farmers, and tradesmen, who were usually poor. the usual age of entry was six or seven. classical latin and greek were taught and the literature of the best classical authors was read. secondary education teachers were expected to know latin and have studied the ancient philosophers, history, and geography. the method of teaching was for the teacher to read textbooks to the class from a prepared curriculum. the students were taught in latin and expected not to speak english in school. they learned how to read and to write latin, to develop and amplify a theme by logical analysis, and to essay on the same subject in the narrative, persuasive, argumentative, commending, consoling, and inciting styles. they had horn books with the alphabet and perhaps a biblical verse on them. this was a piece of wood with a paper on it held down by a sheet of transparent horn. they also learned arithmetic (solving arithmetical problems and casting accounts). disobedience incurred flogging by teacher as well as by parents. spare the rod and spoil the child was the philosophy. schools now guarded the morals and behavior of students. there were two week vacations at christmas and at easter. royal grammar books for english and latin were proclaimed by henry in 1543 to be the only grammar book authorized for students. in 1545, he proclaimed a certain primer of prayers in english to be the only one to be used by students. the first school of humanist studies arose in oxford with the foundation of corpus christi college in 1516 by bishop richard fox. it had the first permanent reader or professor in greek. the professor of humanity was to extirpate all barbarisms by the study of cicero, sallust, valerius maximus, and quintilian. the third reader of theology was to read texts of the holy fathers but not those of their commentators. oxford university was granted a charter which put the greater part of the town under control of the chancellor and scholars. the mayor of oxford was required to take an oath at his election to maintain the privileges and customs of the university. roman law and other regius professorships were founded by the king at oxford and cambridge. teaching of undergraduates was the responsibility of the university rather than of the colleges, though some colleges had live-in teachers as students. most colleges were exclusively for graduate fellows, though this was beginning to change. the university took responsibility for the student's morals and behavior and tutors sometimes whipped the undergraduates. for young noblemen, a more important part of their education than going to university was travel on the continent with a tutor. this exposure to foreign fields was no longer readily available through war or pilgrimage. the purpose was practical to learn about foreign people and their languages, countries, and courts. knowledge of the terrain, resources, prosperity, and stability of their countries was particularly useful to a future diplomatic or political career. the physicians of london were incorporated to oversee and govern the practice of medicine. a faculty of physicians was established at oxford and cambridge. a royal college of physicians was founded in london in 1518 by the king's physician. the college of physicians taught more practical medicine and anatomy than the universities. only graduates of the college of physicians or of oxford or cambridge were allowed to practice medicine or surgery. medical texts were hippocrates and galen. these viewed disease as only part of the process of nature without anything divine. they stressed empiricism, experience, collections of facts, evidences of the senses, and avoidance of philosophical speculations. some observations of hippocrates were: �when sleep puts an end to delirium, it is a hopeful sign.� �when on a starvation diet, the patient should not be allowed to become fatigued.� �old men usually have less illness than young ones, but such as they have last, as a rule, till death.� �pleurisy, pneumonia, colds, sore throat, and headache are more likely to occur during winter seasons.� �when one oversleeps, or fails to sleep, the condition suggests disease." hippocrates had asserted that madness was simply a disease of the brain and then galen had agreed and advocated merciful treatment of the insane. galen's great remedies were proper diet, exercise, massage, and bathing. he taught the importance of a good water supply and good drainage. he advised that baking bread in a large oven was superior to cooking in a small oven, over ashes, or in a pan in wholesomeness, digestibility, and flavor. greek medicinal doctrines were assumed, such as that preservation of the health of the body was dependent on air, food, drink, movement and repose, sleeping and waking, excretion and retention, and the passions. it was widely known that sleep was restorative and that bad news or worry could spoil one's digestion. an italian book of 1507 showed that post-mortem examinations could show cause of death by gallstones, heart disease, thrombosis of the veins, or abscesses. in 1540 began the practice of giving bodies of hanged felons to surgeons to dissect. this was to deter the commission of felony. there was some feeling that dissection was a sacrilege, that the practice of medicine was a form of sorcery, and that illness and disease should be dealt with by prayer and/or atonement because caused by sin, the wrath of god, or by the devil. food that was digested was thought to turn into a vapor which passed along the veins and was concreted as blood, flesh, and fat. after 1546, there was a book listing hundreds of drugs with preparation directions, but their use and application was by trial and error. flemish physician andreas vesalius, secretly dissected human corpses, finding them hanging on public gibbets or competing with dogs for those incompletely buried in cemeteries. he begged doctors to allow him to examine the bodies of their fatal cases. he ingratiated himself with judges who determined the time and place of execution of criminals. in 1543 he published the first finely detailed description of human anatomy. in it, there was no missing rib on one side of man, and this challenged the theory of the woman eve having been made from a rib of the man adam. in the 1540s, ambroise pare from france, a barber-surgeon who was the son of a servant, was an army surgeon. wounds at this time were treated with boiling oil and spurting vessels were closed by being seared with a red-hot iron. after he ran out of boiling oil, he observed that the soldiers without this treatment were healing better than those with this treatment. so he advocated ceasing the practice of cauterizing wounds. he also began tying arteries with cord to stop their bleeding after amputation many other surgical techniques. students were beginning to read for the bar by their own study of the newly available printed texts, treatises, and collections of statute law and of cases, instead of listening in court and talking with attorneys. in 1523, anthony fitzherbert wrote "boke of husbandry", which set forth the most current methods of arable farming, giving details of tools and equipment, advice on capital outlay, methods of manuring, draining, ploughing, and rick-building. it was used by many constantly, and was often carried around in the pocket. this began a new way to disseminate new methods in agriculture. he also wrote a "boke of surveying", which relied on the perch rod and compass dial, and gave instruction on how to set down the results of a survey. in 1533, gemma frisius laid down the principles of topographical survey by triangulation. this improved the quality of surveys and produced accurate plots. geoffrey chaucer's "canterbury tales" was a popular book. through chaucer, london english became a national standard and the notion of "correct pronunciation" came into being. the discoveries and adventures of amerigo vespucci, a portuguese explorer, were widely read. the north and south american continents were named for him. london merchant guilds began to be identified mainly with hospitality and benevolence instead of being trading organizations. twelve great companies dominated city politics and effectively chose the mayor and aldermen. they were, in order of precedence, mercers, grocers, drapers, fishmongers, goldsmiths, skinners, tailors, haberdashers, ironmongers, salters, vintners, and the clothworkers (composed from leading fullers and shearmen). the leading men of these guilds were generally aldermen and the guilds acted like municipal committees of trade and manufactures. then they superintended the trade and manufactures of london much like a government department. they were called livery companies and categorized their memberships in three grades: mere membership, livery membership, and placement on the governing body. livery members were distinguished by having the clothing of the brotherhood [its livery] and all privileges, and proprietary and municipal rights, in the fullest degree. they generally had a right to a place at the company banquets. they were invited by the governing body, as a matter of favor, to other entertainments. these liverymen were usually those who had bought membership and paid higher fees because they were richer. their pensions were larger than those of mere members. those with mere membership were freemen who had only the simple freedom of the trade. the masters were usually householders. the journeymen, yeomanry, bachelors were simple freemen. most of these companies had almshouses attached to their halls for the impoverished, disabled, and elderly members and their widows and children. for instance, many members of the goldsmiths had been blinded by the fire and smoke of quicksilver and some members had been rendered crazed and infirm by working in that trade. the freedom and rights of citizenship of the city could only be obtained through membership in a livery company. a lesser guild, the leathersellers, absorbed the glovers, pursers, and pouchmakers. these craftsmen then became wage earners of the leathersellers, but others of these craftsmen remained independent. before, the whittawyers, who treated horse, deer, and sheep hides with alum and oil, had become wage earners for the skinners. londoners went to the fields outside the city for recreation and games. when farmers enclosed some suburban common fields in 1514, a crowd of young men marched out to them and, crying "shovels and spades", uprooted the hedges and filled in the ditches, thus reclaiming the land for their traditional games. the last major riot in london was aroused by a speaker on may day in 1517 when a thousand disorderly young men, mostly apprentices, defied the curfew and looted shops and houses of aliens. a duke with two thousand soldiers put it down in mid-afternoon, after which the king executed fifteen of the rioters. many english migrated to london. there were ambitious young men and women hopeful of betterment through employment, apprenticeship, higher wages, or successful marriage. on the other hand, there were subsistence migrants forced to leave their homes for food, work, or somewhere to live. there was much social mobility. for instance, between 1551 and 1553, of 881 persons admitted as freemen of london, 46 were the sons of gentlemen, 136 the sons of yeomen, and 289 the sons of farm workers. london grew in population about twice as fast as the nation. the fortunes of landowners varied; some went into aristocratic debt by ostentatiously spending on building, clothes, food, and drink, and some became indebted by inefficient management. some had to sell their manors and dismiss their servants. there are 26 wards of london as of 1550. this is the number for the next four centuries. each ward has an alderman, a clerk, and a chief constable. there are also in each ward about 100 to 300 elected officials including prickers, benchers, blackbootmen, fewellers [keepers of greyhounds], scribes, a halter-cutter, introducers, upperspeakers, under speakers, butlers, porters, inquestmen, scavengers, constables, watchmen, a beadle, jurymen, and common councilmen. the wardmote had inquest jurisdiction over immorality or bad behavior such as vagrancy, delinquency, illegitimacy, and disputes. this contributed greatly to social stability. in 1546, henry ordered the london brothels closed. a small gaol was established in the clink district of southwark, giving the name "clink" to any small gaol. london ordinances required journeymen to work from 6 a.m. to 6 p.m. in winter, with a total of 90 minutes breaks for breakfast, dinner, and an afternoon drink, for 7d. in the summer they had to work for two hours longer for 8d. at its peak in the 1540s the court employed about 200 gentlemen, which was about half the peerage and one-fifth of the greater gentry. henry issued a proclamation ordering noblemen and gentlemen in london not employed by the court to return to their country homes to perform their service to the king. though there was much agreement on the faults of the church and the need to reform it, there were many disagreements on what philosophy of life should take the place of church teachings. the humanist thomas more was a university trained intellectual. his book "utopia", idealized an imaginary society living according to the principles of natural virtue. in it, everything is owned in common and there is no need for money. all believe that there is a god who created the world and all good things and who guides men, and that the soul is immortal. but otherwise people choose their religious beliefs and their priests. from this perspective, the practices of current christians, scholastic theologians, priests and monks, superstition, and ritual look absurd. he encouraged a religious revival. aristotle's position that virtuous men would rule best is successfully debated against plato's position that intellectuals and philosophers would be the ideal rulers. more believed the new humanistic studies should be brought to women as well as to men. he had tutors teach all his children latin, greek, logic, theology, philosophy, mathematics, and astronomy from an early age. his eldest daughter margaret became a recognized scholar and translated his treatise on the lord's prayer. other high class women became highly educated. they voiced their opinions on religious matters. in the 1530s, the duchess of suffolk spoke out for reform of the clergy and against images, relics, shrines, pilgrimages, and services in latin. she and the countess of sussex supported ministers and established seminaries for the spread of the reformed faith. more pled for proportion between punishment and crime. he urged that theft no longer be punished by death because this only encouraged the thief to murder his victim to eliminate evidence of the theft. he opined that the purpose of punishment was to reform offenders. he advocated justice for the poor to the standard of justice received by the rich. erasmus, a former monk, visited the nation for a couple of years and argued that reason should prevail over religious belief. he wrote the book "in praise of folly", which noted man's elaborate pains in misdirected efforts to gain the wrong thing. for instance, it questioned what man would stick his head into the halter of marriage if he first weighed the inconveniences of that life? or what woman would ever embrace her husband if she foresaw or considered the dangers of childbirth and the drudgery of motherhood? childhood and senility are the most pleasant stages of life because ignorance is bliss. old age forgetfulness washes away the cares of the mind. a foolish and doting old man is freed from the miseries that torment the wise and has the chief joy of life: garrulousness. the seekers of wisdom are the farthest from happiness; they forget the human station to which they were born and use their arts as engines with which to attack nature. the least unhappy are those who approximate the naiveness of the beasts and who never attempt what is beyond men. as an example, is anyone happier than a moron or fool? their cheerful confusion of the mind frees the spirit from care and gives it many-sided delights. fools are free from the fear of death and from the pangs of conscience. they are not filled with vain worries and hopes. they are not troubled by the thousand cares to which this life is subject. they experience no shame, fear, ambition, envy, or love. in a world where men are mostly at odds, all agree in their attitude towards these innocents. they are sought after and sheltered; everyone permits them to do and say what they wish with impunity. however, the usual opinion is that nothing is more lamentable than madness. the christian religion has some kinship with folly, while it has none at all with wisdom. for proof of this, notice that children, old people, women, and fools take more delight than anyone else in holy and religious things, led no doubt solely by instinct. next, notice that the founders of religion have prized simplicity and have been the bitterest foes of learning. finally, no people act more foolishly than those who have been truly possessed with christian piety. they give away whatever is theirs; they overlook injuries, allow themselves to be cheated, make no distinction between friends and enemies, shun pleasure, and feast on hunger, vigils, tears, labors, and scorn. they disdain life, and utterly prefer death. in short, they have become altogether indifferent to ordinary interests, as if their souls lived elsewhere and not in their bodies. what is this, if not to be mad? the life of christians is run over with nonsense. they make elaborate funeral arrangements, with candles, mourners, singers, and pallbearers. they must think that their sight will be returned to them after they are dead, or that their corpses will fall ashamed at not being buried grandly. christian theologians, in order to prove a point, will pluck four or five words out from different places, even falsifying the sense of them if necessary, and disregard the fact that their context was relevant or even contradicted their points. they do this with such brazen skill that our attorneys are often jealous of them. attorney christopher st. german wrote the legal treatise "doctor and student", in which he deems the law of natural reason to be supreme and eternal. the law of god and the law of man, as enunciated by the church and royalty, merely supplement the law of natural reason and may change from time to time. examples of the law of reason are: it is good to be loved. evil is to be avoided. do onto others as you would have them do unto you. do nothing against the truth. live peacefully with others. justice is to be done to every man. no one is to wrong another. a trespasser should be punished. from these is deduced that a man should love his benefactor. it is lawful to put away force with force. it is lawful for every man to defend himself and his goods against an unlawful power. like his father, henry viii dominated parliament. he used this power to reform the church of england in the 1530's. the protestant reformation cause, started in germany in 1517 by martin luther posting his thesis, had become identified with henry's efforts to have his marriage of eighteen years to the virtuous catherine annulled so he could marry a much younger woman: anne. his purported reason was to have a son. the end of his six successive wives was: annulled, beheaded, died; annulled, beheaded, survived. henry viii was egotistical, arrogant, and selfindulgent. this nature allowed him to declare himself the head of the church of england instead of the pope. henry used and then discarded officers of state e.g. by executing them for supposed treason. one such was thomas wolsey, the son of a town grazier [one who pastures cattle and rears them for market] and butcher, who was another supporter of classical learning. he rose through the church, the gateway to advancement in a diversity of occupations of clergy such as secretary, librarian, teacher, attorney, doctor, author, civil servant, diplomat, and statesman. he was a court priest when he aligned himself with henry, both of whom wanted power and glory and dressed extravagantly. but he was brilliant and more of a strategist than henry. wolsey called himself a reformer and started a purge of criminals, vagrants and prostitutes within london, bringing many before the council. but most of his reforming plans were not brought to fruition, but ended after his campaign resulted in more power for himself. wolsey rose to be chancellor to the king and archbishop of york. as the representative of the pope for england, he exercised almost full papal authority there. but he controlled the church in england in the king's interest. he was second only to the king and he strengthened the crown by consolidating power and income that had been scattered among nobles and officeholders. he also came to control the many courts. wolsey centralized the church in england and dissolved the smaller monasteries, the proceeds of which he used to build colleges at oxford and his home town. he was an impartial and respected justice. when wolsey was not able to convince the pope to give henry an annulment of his marriage, henry dismissed him and took his property, shortly after which wolsey died. the king replaced wolsey as chancellor with thomas more, after whom he made thomas cromwell chancellor. cromwell, the son of a clothworker/blacksmith/brewer/innkeeper, was a self-taught attorney, arbitrator, merchant, and accountant. like wolsey, he was a natural orator. he drafted and had passed legislation that created a new church of england. he had all men swear an oath to the terms of the succession statute. thomas more was known for his honesty and was a highly respected man. more did not yield to henry's bullying for support for his statute declaring the succession to be vested in the children of his second marriage, and his statute declaring himself the supreme head of the church of england, instead of the pope. he did not expressly deny this supremacy statute, so was not guilty of treason under its terms. but silence did not save him. he was attainted for treason on specious grounds and beheaded. his conviction rested on the testimony of one perjured witness, who misquoted more as saying that parliament did not have the power to require assent to the supremacy statute because it was repugnant to the common law of christendom. henry ruled with an iron fist. in 1536, he issued a proclamation that "any rioters or those in an unlawful assembly shall return to their houses" or "we will proceed against them with all our royal force and destroy them and their wives and children." in 1538, he proclaimed that anyone hurting or maiming an officer while trying to make an arrest "shall lose and forfeit all their lands, goods, and chattel" and shall suffer perpetual imprisonment. moreover, if one murdered such an officer, he would suffer death without privilege of sanctuary or of clergy. in 1540, he proclaimed that there would be no shooting by handgun except on a shooting range. henry had parliament pass bills of attainder against many people. for the first time, harsh treatment of prisoners in the tower, such as placement in dungeons with little food, no bed, and no change of clothes, became almost a matter of policy. through his host of spies, cromwell heard what men said to their closest friends. words idly spoken were distorted into treasonable utterances. fear spread through the people. silence was a person's only possibility of safety. cromwell developed a technique for the management of the house of commons which lasted for generations. he promulgated books in defense of royal spiritual authority, which argued that canon law was not divine but merely human and that clerical authority had no foundation in the bible. a reformed english bible was put in all parish churches. reformers were licensed to preach. cromwell ordered sermons to be said which proclaimed the supremacy of the king. he instituted registers to record baptisms, marriages, and burials in every county, for the purpose of reducing disputes over descent and inheritance. he dissolved all the lesser monasteries. when cromwell procured a foreign wife for henry whom henry found unattractive, he was attainted and executed. henry now reconstructed his council to have a fixed membership, an official hierarchy based on rank, a secretariat, an official record, and formal powers to summon individuals before it by legal process. because it met in the king's privy lodgings, it was called the "privy council". it met daily instead of just during the terms of the westminster courts from late autumn to early summer. it communicated with the king through intermediaries, of whom the most important was the king's secretary. because it was a court council, part of it traveled with the king, while the other part conducted london business. when henry went to war in france, part of the council went with him, and part of it stayed to attend the queen regent. thomas cranmer, archbishop of canterbury, wrote the first english common book of prayer. with its use beginning in 1549, church services were to be held in english instead of latin. the celebration of the lord's supper was a communion among the parishioners and minister all sharing the wine and bread. it replaced the mass, in which the priests were thought to perform a miraculous change of the substance of bread and wine into the body and blood of christ, which the priest then offered as a sacrifice for remission of pain or guilt. this reflected the blood sacrifice of christ dying on the cross. in the mass, only the priests drank the wine. the mass, miracles, the worship of saints, prayers for souls in purgatory, and pilgrimages to shrines such as that of thomas becket, were all to be discontinued. imprisonment or exile rather than death was made the penalty for heresy and blasphemy, and also for adultery. after the king dissolved the greater monasteries, he took and sold their ornaments, silver plate and jewelry, lead from roofs of their buildings, and finally much of the land itself. many maps of manors and lands were made at this time. three monasteries were converted into the first three treating hospitals in london, one for the diseased, one for the poor, and one, bethlehem (or "bedlam" for short), for the mentally ill. but there were still many poor, sick, blind, aged, and impotent people in the streets since the closure of the monasteries. in 1552, there were 2,100 people in need of relief, including 300 orphans, 600 sick or aged, 350 poor men overburdened with their children, 650 decayed householders, and 200 idle vagabonds. the poor often begged at parishes, where they spread disease. london then set up a poor relief scheme. the bridewell was established to set to work the idle, vagabonds, and prostitutes making feather bed ticks and wool-cards, drawing of wire, carding, knitting, and winding of silk. parishes were required to give money for the poor in 1563. other towns followed london's lead in levying a poor rate. henry used the proceeds from the sale of the monasteries for building many new palaces and wood ships for his navy. in war, these navy ships had heavy guns which could sink other ships. in peace time, these ships were hired out to traders. large ships were constructed in docks, made partly by digging and partly by building walls. in 1545, henry issued a proclamation ordering all vagabonds, ruffians, masterless men, and evil-disposed persons to serve him in his navy. the former land of the monasteries, about 30% of the country's land, was sold and resold, usually to great landowners, or leased. title deeds became important as attorneys sought the security that title could give. some land went to entrepreneurial cloth manufacturers, who converted the buildings for the manufacture of cloth. they bought the raw wool and hired craftsmen for every step of the manufacturing process to be done in one continuous process. this was faster than buying and selling the wool material between craftsmen who lived in different areas. also, it was more efficient because the amount of raw wool bought could be adjusted to the demand for cloth. many landowners now could live in towns exclusively off the rents of their rural land. rents were increased so much that tenants could not pay and were evicted. they usually became beggars or thieves. much of their former land was converted from crop raising to pasture for large herds of sheep. arable farming required many workers, whereas sheep farming required only one shepherd and herdsman. there were exceptional profits made from the export of wool cloth. but much raw wool was still exported. its price went up from 6s.8d. per tod [about 28 pounds] in 1340 to 20s.8d. in 1546. villeinage was now virtually extinct. a lord could usually claim a small money-rent from the freeholder, sometimes a relief when his land was sold or passed at death, and occasionally a heriot from his heir. there was steady inflation. landlords made their leases short term so that they could raise rents as prices rose. copyholders gradually acquired a valuable right in their holdings; their rent became light less that a shilling an acre. at least 85% of the population still lived in the country. rich traders built town or country houses in which the emphasis was on comfort and privacy. there was more furniture, bigger windows filled with glass, thick wallpaper, and formal gardens. use of thick, insulating wallpaper rose with the rise of paper mills. it was stenciled, hand-painted, or printed. some floors were tiled instead of stone or wood. they were still strewn with straw. the owners ate in a private dining room and slept in their own rooms with down quilts. their soap was white. they had clothing of white linen and white wool, leather slippers, and felt hats. men wore long tunics open at the neck and filled in with pleated linen and enormous puffed sleeves. henry made proclamations reminding people of the apparel laws, but they were difficult to enforce. henry also made a proclamation limiting the consumption of certain meat according to status. seven dishes were allowed to bishops, dukes, marquises, and earls; six to other temporal lords; five to justices, the king's council, sheriffs, and persons with an income of at least 200 pounds yearly or goods worth 2000 pounds; four to persons with an income of at least 100 pounds or goods worth 1000 pounds; and three dishes to persons with an income of at least 100 pounds or goods worth 500 pounds. there were limits on types of meat served, such as a maximum of one dish of great fowl such as crane, swan, and peacock; eight quail per dish; and twelve larks in a dish. people used tin or pewter dishes, platters, goblets, saucers, spoons, saltcellars, pots, and basins. they used soap to wash themselves, their clothes, and their dishes. a solid, waxy soap was from evaporating a mixture of goat fat, water, and ash high in potassium carbonate. they had bedcovers on their beds. cloth bore the mark of its weaver and came in many colors. cloth could be held together with pins that had a shank with a hook by which they were closed. people went to barbers to cut their hair and to extract teeth. they went to people experienced with herbs, roots, and waters for treatment of skin conditions such as sores, cuts, burns, swellings, irritated eyes or scaly faces. for more complicated ailments, they went to physicians, who prescribed potions and medicines. they bought potions and medicines from apothecaries and pharmacists. they burned wood logs in the fireplaces in their houses. so much wood was used that young trees were required by statute to be given enough lateral space to spread their limbs and were not cut down until mature. the king, earls, who ruled counties, and barons, who had land and a place in the house of lords, still lived in the most comfort. the king's house had courtyards, gardens, orchards, wood-yards, tennis courts, and bowling alleys. the walls of the towns were manned by the citizens themselves, with police and watchmen at their disposal. in inns, travelers slept ten to a bed and there were many fleas and an occasional rat or mouse running through the rushes strewn on the floor. the inn provided a bed and ale, but travelers brought their own food. each slept with his purse under his pillow. in markets, sellers set up booths for their wares. they sold grain for making oatmeal or for sowing one's own ground. wine, butter, cheese, fish, chicken, and candles could also be bought. butchers bought killed sheep, lambs, calves, and pigs to cut up for selling. tanned leather was sold to girdlemakers and shoemakers. goods bought in markets were presumed not to be stolen, so that a purchaser could not be dispossessed of goods bought unless he had knowledge that they were stolen. the ruling group of the towns came to be composed mostly of merchants, manufacturers, attorneys, and physicians. some townswomen were independent traders. the governed class contained small master craftsmen and journeyman artisans, small traders, and dependent servants. the major streets of london were paved with stone, with a channel in the middle. more water conduits from hills, heaths, and springs were built to provide the citizens of london with more water. the sewers carried only surface water away. households were forbidden to use the sewers. privies emptied into cesspools. the merchant adventurers' fellowship brought virtually all adventurers under its control and organized and regulated the national cloth trade. it had a general court of the adventurers sitting in the london mercers' hall. various companies were granted monopolies for trade in certain areas of the world such as turkey, spain, france, venice, the baltic, and africa. these were regulated companies. that is they obtained complete control of a particular foreign market, but any merchant who cared to join the company, pay its dues, and obey its regulations, might share in the benefits of its monopoly. the companies generally confined trade to men who were primarily merchants and not shopkeepers. in 1553 explorer sebastian cabot formed the muscovy company, which was granted a monopoly in its charter for trade with north russia. it was oriented primarily to export english woolen cloth. it was the first company trading on a joint stock, which was arranged as a matter of convenience and safety. the risks were too great for any few individuals. it hired ships and assigned space to each member to ship his goods at his own risk. the dividend was return to the subscribers of the capital put in plus an appropriate share of any profits made on the voyage. i.e. the money was divided up. the members began leaving their money with the company for the next voyage. a general stock grew up. in 1568 were the first industrial companies: mines royal, and mineral and battery works. the cloth, mining, iron, and woodcraft industries employed full-time workers on wages. in the ironworks and foundries, the furnace blowing engines were worked by water wheels or by a gear attached to donkeys or horses. the forge hammers were worked at first by levers and later by water wheels. the day and night hammering filled the neighborhood with their noise. land held in common was partitioned. there were leases of mansion houses, smaller dwelling houses, houses with a wharf having a crane, houses with a timber yard, houses with a garden, houses with a shed, shops, warehouses, cellars, and stables. lands with a dye-house or a brew-house were devised by will along with their dying or brewing implements. there were dairies making butter and cheese. the knights had 70% of the land, the nobles 10%, the church 10%, and king 5%. citizens paid taxes to the king amounting to one tenth of their annual income from land or wages. merchants paid "forced loans" and benevolences. the national government was much centralized and had full-time workers on wages. a national commission of sewers continually surveyed walls, ditches, banks, gutters, sewers, ponds, bridges, rivers, streams, mills, locks, trenches, fishbreeding ponds, and flood gates. when low places were threatened with flooding, it hired laborers, bought timber, and hired carts with horses or oxen for necessary work. mayors of cities repaired water conduits and pipes under their cities' ground. the organ and the harp, precursor to the piano, were played. all people generally had enough food because of the commercialization of agriculture. even the standard meal of the peasant was bread, bacon, cheese, and beer or cider, with beef about twice a week. also, roads were good enough for the transport of foodstuffs thereon. four-wheeled wagons for carrying people as well as goods. goods were also transported by the pulling of barges on the rivers from paths along the river. a plough with wheels was used as well as those without. the matchlock musket came into use, but did not replace the bow because its matchcord didn't remain lit in rainy weather. the matchlock was an improvement over the former musket because both hands could be used to hold and aim the matchlock musket because the powder was ignited by a device that touched a slow-burning cord to the powder when a trigger was pulled with one finger. after the break with rome, cooperation among villagers in church activities largely ceased. the altars and images previously taken care of by them disappeared and the paintings on the walls were covered with white or erased, and scripture texts put in their place. people now read the new bible, the "paraphrases" of erasmus, foxe's "book of martyrs", and the works of bishop jewel. the book of martyrs taught the duty and splendor of rising above all physical danger or suffering. the canon law of the church was abolished and its study prohibited. professorships of the civil law were founded at the two universities. the inns of court grew. attorneys had more work with the new laws passed to replace the church canons of the church. they played an important role in town government and many became wealthy. they acquired town houses in addition to their rural estates. church reforms included abolishing church sanctuaries. benefit of clergy was restricted. parsons were allowed to marry. archbishops were selected by the king without involvement by the pope. decisions by archbishops in testamentary, matrimonial, and marriage annulment matters were appealable to the court of chancery instead of to the pope. the clergy's canons were subject to the king's approval. the control of the church added to the powers of the crown to summon and dissolve parliament, coin money, create peers [members of the house of lords who received individual writs of summons to parliament], pardon criminals, order the arrest of dangerous persons without customary process of law in times of likely insurrection, tax and call men to arms without the consent of parliament if the country were threatened with invasion. about 1550 there began indictments and executions for witchcraftery which lasted for about a century. one of the reasons for suspecting a woman to be a witch was that she lived alone, which was very unusual. henry ordered all alien anabaptists, who denied the validity of infant baptism, to leave the realm. in switzerland, theophrastus paracelsus, an astrologer and alchemist who later became a physician, did not believe that humor imbalance caused disease nor in treatment by bloodletting or purging. he believed that there were external causes of disease, e.g. toxic matter in food, contagion, defective physical or mental constitution, cosmic influences differing with climate and country, or affliction sent providence. he urged that wounds be kept clean rather than given poultices. in 1530, he pioneered the application of chemistry to physiology, pathology, and the treatment of disease by starting clinical diagnosis and treatment of disease by highly specific medicines, instead of by cure-alls. for instance, he used alkalis to treat disease, such as gout, indicated by certain substances in the urine, which also started urinalysis. he perceived that syphilis was caused by contagion and used mercury to cure it. he found curative powers also in opium, sulphur, iron, and arsenic. opium was made by drying and cooking the capsule of the poppy and was one of the few really effective early drugs. paracelsus urged alchemists to try to prepare drugs from minerals for the relief of suffering. he claimed to acquire knowledge of cures through spiritual contacts to occult wisdom. he believed that a human being has an invisible body as well as a visible one and that it is closely attuned to imagination and the spiritual aspect of an individual. he noticed that one's attitudes and emotions, such as anger, could affect one's health. he sometimes used suggestion and signs to help a patient form mental images, which translated into cures. he saw insanity as illness instead of possession by evil spirits. understanding of the celestial world began to change. contemporary thought was that the nature of all things was to remain at rest, so that movement and motion had to be explained by causes. the earth was stationary and the heavens were spherical and revolved around the earth every twenty-four hours. the universe was finite. the firmament extended outward in a series of rotating, crystalline, ethereal spheres to which were attached the various points of celestial geography. first came the circle of the moon. the sun orbited the earth. the fixed stars rotated on an outer firmament. finally, there was the abode of god and his heavenly hosts. different principles ruled the celestial world; it was orderly, stable, ageless, and enduring. but the world of man changed constantly due to its mixed four elements of air, earth, fire, and water each trying to disentangle itself from the others and seeking to find its natural location. the heavenly spheres could affect the destinies of men, such as through fate, fortune, intelligence, cherubim, seraphim, angels, and archangels. astrologers read the celestial signs and messages. then a seed of doubt was cast on this theory by nicholaus copernicus, a timid monk in poland, who found inconsistencies in ptolemy's work, but saw similarity in the movements of the earth and other planets. he inferred from the "wandering" planetary movements with loops that their motion could be explained simply if they were revolving in circular paths around the sun, rather than around the earth. in his book of 1543, he also expressed his belief that the earth also revolved around the sun. this idea so shocked the world that the word "revolution" became associated with radical change. he thought it more likely that the earth rotated than that the stars moved with great speed in their large orbits. he proposed that the earth spins on its own axis about once every twenty-four hours, with a spin axis at about a 23 1/2 degree tilt from the orbital axis, thus explaining a slow change in the overall appearances of the fixed stars which had been observed since the time of ptolemy. he deduced from astronomical measurements that the correct order of the planets from the sun was: mercury, venus, earth, mars, jupiter, and saturn. the church considered his ideas heretical because contradictory to its dogma that man and the earth were the center of the universe. a central sun evoked images of pagan practices of sun worship. the law a person having land in socage or fee simple may will and devise his land by will or testament in writing. a person holding land by knight's service may will and devise by his last will and testament in writing part of his land to his wife and other parts of his land to his children, as long as 1/3 of entailed land is left to the king. anyone serving the king in war may alienate his lands for the performance of his will, and if he dies, his feoffees or executors shall have the wardship of his heir and land. a person who leases land for a term of years, even if by indenture or without a writing, may have a court remedy as do tenants of freehold for any expulsion by the lessor which is contrary to the lease, covenant, or agreement. these termers, their executors and assigns, shall hold and enjoy their terms against the lessors, their heirs and assigns. the lessor shall have a remedy for rents due or waste by a termer after recovering the land as well as if he had not recovered the land. a lord may distrain land within his fee for rents, customs, or services due without naming the tenant, because of the existence of secret feoffments and leases made by their tenants to unknown persons. anyone seised of land to the use or trust of other persons by reason of a will or conveyance shall be held to have lawful seisin and possession of the land, because by common law, land is not devisable by will or testament, yet land has been so conveyed, which has deprived married men of their courtesy, women of their dower, the king of the lands of persons attainted, the king of a year's profits from felons' lands, and lords of their escheats. (this was difficult to enforce.) a woman may not have both a jointure [promise of husband to wife of property or income for life after his death] and dower of her husband's land. (persons had purchased land to hold jointly with their wives) a sale of land must be in writing, sealed, and registered in its county with the clerk of that county. if the land is worth less than 40s. per year, the clerk is paid 12d. if the land exceeds 40s. yearly, the clerk is paid 2s.6d. an adult may lease his lands or tenements only by a writing under his seal for a term of years or a term of life, because many people who had taken leases of lands and tenements for a term of years or a term of lives had to spend a lot for repair and were then evicted by heirs of their lessors. a husband may not lease out his wife's land. no woman-covert, child, idiot, or person of insane memory may devise land by will or testament. the land of tenants-in-common may be partitioned by them so that each holds a certain part. no bishop or other official having authority to take probate of testaments may take a fee for probating a testament where the goods of the testator are under 100s., except that the scribe writing the probate of the testament may take 6d., and for the commission of administration of the goods of any man dying intestate, being up to 100s, may be charged 6d. where the goods are over 100s. but up to 800s. sterling, probate fees may be 3s.6d. at most, whereof the official may take 2s.6d. at most, with 12d. residue to the scribe for registering the testament. where the goods are over 800s. sterling, probate fees may be 5s. at most, whereof the official may take 2s.6d. at most, with 2s.6d. residue to the scribe, or the scribe may choose to take 1d. per 10 lines of writing of the testament. if the deceased had willed by his testament any land to be sold, the money thereof coming nor the profits of the land shall not be counted as the goods or chattel of the deceased. where probate fees have customarily been less, they shall remain the same. the official shall approve and seal the testament without delay and deliver it to the executors named in such testaments for the said sum. if a person dies intestate or executors refuse to prove the testament, then the official shall grant the administration of the goods to the widow of the deceased person, or to the next of kin, or to both, in the discretion of the official, taking surety of them for the true administration of the goods, chattels, and debts. where kin of unequal degree request the administration, it shall be given to the wife and, at his discretion, other requestors. the executors or administrators, along with at least two persons to whom the deceased was indebted, or to whom legacies were made, or, upon their refusal or absence, two honest kinsmen, shall make an inventory of the deceased's goods, chattels, ware, merchandise, as well moveable as not moveable, and take it upon their oaths to the official. no parish clergyman or other spiritual person shall take a mortuary fee or money from a deceased person with movable goods under the value of 133s., a deceased woman-covert, a child, a person keeping no house, or a traveler. only one mortuary fee may be taken of each deceased and that in the place where he most dwelled and lived. where the deceased's moveable goods are to the value of 133s. or more, above his debts paid, and under 600s., a mortuary up to 3s. 4d. may be taken. where such goods are 600s. or more and under 800s., mortuary up to 6s.8d. may be taken. where such goods are 800s. or above, mortuary up to 10s. may be taken. but where mortuaries have customarily been less, they shall remain the same. executors of a will declaring land to be sold for the payment of debts, performance of legacies to wife and children, and charitable deeds for the health of souls, may sell the land despite the refusal of other executors to agree to such sale. a man may not marry his mother, stepmother, sister, niece, aunt, or daughter. any clergy preaching contrary to the king's religious doctrine shall recant for the first offense. he shall abjure and bear a faggot (a badge resembling a faggot of wood which would have been used for burning him as a heretic) for the second offense. if he refuses to abjure or bear a faggot or offends a third time, he shall be burned and lose all his goods. if a layperson teaches, defends, or maintains a religious doctrine other than the king's, he shall recant and be imprisoned for twenty days for the first offense. he shall abjure and bear a faggot if he does not recant or offends a second time. he shall forfeit his goods and suffer perpetual imprisonment if he does not abjure or bear a faggot or offends a third time. the entry of an apprentice into a craft shall not cost more than 2s.6d. after his term, his entry shall not be more than 3s.4d. this replaced the various fees ranging from this to 40s. no master of a craft may require his apprentice to make an oath not to compete with him by setting up a shop after the term of his apprenticeship. no alien may take up a craft or occupation in the nation. no brewer of ale or beer to sell shall make wood vessels or barrels, and coopers shall use only good and seasonable wood to make barrels and shall put their mark thereon. every ale or beer barrel shall contain 32 of the king's standard gallons. the price of beer barrels sold to ale or beer brewers or others shall be 9d. an ale-brewer may employ in his service one cooper only to bind, hoop and pin, but not to make, his master's ale vessels. no butcher may keep a tanning-house. tanned leather shall be sold only in open fairs and markets and after it is inspected and sealed. only people living in designated towns may make cloth to sell, to prevent the ruin of these towns by people taking up both agriculture and cloth-making outside these towns. no one making cloth for sale may have more than one woolen loom or else forfeit 20s. this to protect the weavers' ability to maintain themselves and their families from rich clothiers who keep many looms and employ journeymen and unskillful persons at low wages. no one owning a fulling mill may own a weaving loom. no weaver may own a fulling mill. no one shall shoot in or keep in his house any handgun or crossbow unless he has 2,000s. yearly. no one may hunt or kill hare in the snow since their killing in great numbers by men other than the king and noblemen has depleted them. no one shall take an egg or bird of any falcon or hawk out of its nest on the king's land. no one may disguise himself with hidden or painted face to enter a forest or park enclosed with a wall for keeping deer to steal any deer or hare. ducks and geese shall not be taken with any net or device during the summer, when they haven't enough feathers to fly. but a freeholder of 40s. yearly may hunt and take such with long bow and spaniels. no one may sell or buy any pheasant except the king's officers may buy such for the king. no butcher may kill any calf born in the spring. no grain, beef, mutton, veal, or pork may be sold outside the nation. every person with 36 acres of agricultural land, shall sow one quarter acre with flax or hemp-feed. all persons shall kill crows on their land to prevent them from eating so much grain at sowing and ripening time and destroying hay stacks and the thatched roofs of houses and barns. they shall assemble yearly to survey all the land to decide how best to destroy all the young breed of crows for that year. every village and town with at least ten households shall put up and maintain crow nets for the destruction of crows. no land used for raising crops may be converted to pasture. no woods may be converted to agriculture or pasture. the efforts to enforce these proved these prohibitions were not successful. no one shall cut down or break up dikes holding salt water and fresh water from flooding houses and pastures. no one shall dump tin-mining debris, dung, or rubbish into rivers flowing into ports or take any wood from the walls of the port, so that ships may always enter at low tide. a person may lay out a new highway on his land where the old one has been so damaged by waterways that horses with carriages cannot pass, with the consent of local officials. only poor, aged, and disabled persons may beg. begging without a license is punishable by whipping or setting in the stocks 3 days with only bread and water. alien palm readers shall no longer be allowed into the nation, because they have been committing felonies and robberies. butchers may not sell beef, pork, mutton, or veal from carcasses for more than 1/2 penny and 1/2 farthing [1/4 penny] per pound. french wines may not sell at retail for more than 8d. per gallon. a barrel maker or cooper may sell a beer barrel for 10d. no longer may aliens bring books into the nation to sell because now there are sufficient printers and bookbinders in the nation. no one may buy fresh fish other than sturgeon, porpoise, or seal from an alien to put to sale in the nation. every person with an enclosed park where there are deer, shall keep two tall and strong mares in such park and shall not allow them to be mounted by any short horse, because the breeding of good, swift, and strong horses has diminished. a man may have only as many trotting horses for the saddle as are appropriate to his degree. no one may maintain for a living a house for unlawful games such as bowling, tennis, dice, or cards. no artificer, craftsman, husbandman, apprentice, laborer, journeyman, mariner, fisherman may play these games except at christmas under his master's supervision. noblemen and others with a yearly income of at least 2,000s. may allow his servants to play these games at his house. hemp of flax may not be watered in any river or stream where animals are watered. no one shall sell merchandise to another and then buy back the same merchandise within three months at a lower price. no one shall sell merchandise to be paid for in a year above the sum of 200s. per 2000s. worth of merchandise. no one shall sell or mortgage any land upon condition of payment of a sum of money before a certain date above the sum of 200s. per 2000s. per year. no one shall commit forgery by counterfeiting a letter made in another person's name to steal any money, goods, or jewels. no one shall libel by accusing another of treason in writing and leaving it in an open place without subscribing his own name to it. if any servant converts to his own use more than 40s. worth of jewels, money, or goods from caskets entrusted to him for safekeeping by a nobleman or other master or mistress, it shall be a felony. if a person breaks into a dwelling house by night to commit burglary or murder, is killed by anyone in that house, or a person is killed in self-defense, the killer shall not forfeit any lands or goods for the killing. killing by poisoning shall be deemed murder and is punishable by death. a person who has committed a murder, robbery, or other felony he has committed shall be imprisoned for his natural life and be burned on the hand, because those who have been exiled have disclosed their knowledge of the commodities and secrets of this nation and gathered together to practice archery for the benefit of the foreign realm. if he escapes such imprisonment, he shall forfeit his life. a person convicted or outlawed shall be penalized by loss of life, but not loss of lands or goods, which shall go to his wife as dower and his heirs. buggery may not be committed on any person or beast. no one shall slander or libel the king by speeches or writing or printing or painting. no one shall steal fish from a pond on another's land by using nets or hooks with bait or by drying up the pond. the mayor of london shall appoint householders to supervise watermen rowing people across the thames river because so many people have been robbed and drowned by these rowers. all such boats must be at least 23 feet long and 5 feet wide. no man shall take away or marry any maiden under 16 years of age with an inheritance against the will of her father. any marriage solemnized in church and consummated shall be valid regardless of any prior agreement for marriage. sheriffs shall not lose their office because they have not collected enough money for the exchequer, but shall have allowances sufficient to perform their duties. butchers, brewers, and bakers shall not conspire together to sell their victuals only at certain prices. artificers, workmen and laborers shall not conspire to work only at a certain rate or only at certain hours of the day. no one shall sell any woolen cloth that shrinks when it is wet. only artificers using the cutting of leather, may buy and sell tanned leather and only for the purpose of converting it into made wares. a beggar's child above five years may be taken into service by anyone that will. cattle may be bought only in the open fair or market and only by a butcher or for a household, team, or dairy, but not for resale live. butter and cheese shall not be bought to be sold again except at retail in open shop, fair, or market. no man may enter a craft of cloth-making until he has been an apprentice for seven years or has married a clothiers' wife and practicing the trade for years with her and her servants sorting the wool. no country person shall sell wares such as linen drapery, wool drapery, hats, or groceries by retail in any incorporated town, but only in open fairs. for every 60 sheep there shall be kept one milk cow because of the scarcity of cattle. no clothier may keep more than one wool loom in his house, because many weavers do not have enough work to support their families. no weaver may have more than two wool looms. no clothmaker, fuller, shearman, weaver, tailor, or shoemaker shall retain a journeyman to work by the piece for less than a three month period. every craftsman who has three apprentices shall have one journeyman. servants in agriculture and bargemen shall serve by the whole year and not by day wages. there shall be a sales tax of 12d. per pound of wool cloth goods for the crown. all people shall attend church on sundays to remember god's benefits and goodness to all and to give thanks for these with prayers and to pray to be given daily necessities. anyone fighting in church shall be excluded from the fellowship of the parish community. no one shall use a rope or device to stretch cloth for sale so to make it appear as more in quantity than it is. no one may sell cloth at retail unless the town where it was dressed, dyed, and pressed has placed its seal on the cloth. cloth may not be pressed with a hot press, but only with a cold press. offices may not be bought and sold, but only granted by justices of the royal courts. no one going from house to house to repair metal goods or sell small goods he is carrying may do this trade outside the town where he lives. no one may sell ale or beer without a license, because there have been too many disorders in common alehouses. offenders may be put in the town or county gaol for three days. only persons with yearly incomes of 1,333s. or owning goods worth 13,333s. may store wine in his house and only for the use of his household. no one may sell forged iron, calling it steel, because the edged tools and weapons made from it are useless. parish communities shall repair the highways for four days each year using oxen, cart, plough, shovels, and spades. the children of priests are declared legitimate so they may inherit their ancestor's lands. the priests may be tenants by courtesy after the death of their wives of such land and tenements that their wives happened to be seized of in fee simple or in fee tail, during the spousals. the king's proclamations shall be observed and kept as though they were acts of parliament. the penalty shall not be more than that stated in the proclamation, except for heresy. as of 1541, it was felony to practice witchcraft, sorcery, enchantment, or conjuration for the purpose 1) of obtaining money, or 2) to consume any person in his body, members, or goods, or 3) to provoke any person to unlawful love or lucre of money, or 4) to declare where stolen goods be, or 5) to despite christ, or 6) to pull down any cross. the year books ceased in 1535. judicial procedure by royal proclamation of 1546, only those admitted by the chancellor and two chief justices may practice as counsel or in legal pleading in any of the king's courts. also, such a person must be serjeant-at-law, reader, utter barrister, or an eight-year fellow of one of the four houses of court, except in the court of common pleas. doctors of the civil law may practice in the church or chancery courts. justices shall tax inhabitants of the county for building gaols throughout the nation, for imprisonment of felons, to be kept by the sheriffs and repaired out of the exchequer. piracy at sea or in river or creek or port are adjudicated in counties because of the difficulty of obtaining witnesses from the ship, who might be murdered or who are on other voyages on the sea, for adjudication by the admiral. piracy and murder on ships is punishable by death only after confession or proof by disinterested witnesses. land held by tenants in common may be partitioned by court order, because some of these tenants have cut down all the trees to take the wood and pulled down the houses to convert the material to their own use. persons worth 800s. a year in goods shall be admitted in trials of felons in corporate towns although they have no freehold of land. each justice of the high courts may employ one chaplain. the privy council took the authority of the star chamber court, which organized itself as a specialty court. also, a specific group of full-time councilors heard pleas of private suitors. the bishops, nobility, and justices of the peace were commanded to imprison clergy who taught papal authority. justices of the peace and sheriffs were to watch over the bishops. the justices of assize were to assess the effectiveness of the justices of the peace as well as enforce the treason statute on circuit. the criminal court went outside the common law to prosecute political enemies, e.g. by dispensing with a jury. since the nation was now peaceful, expediency was no longer needed, so judicial procedures again became lengthy and formal with records. the chancery court enforced the obligations known as trusts, in the name of equity and good conscience. it adopted every analogy that the common law presented. its procedure was to force the defendant to answer on oath the charges that were brought against him. all pleadings and usually testimony was put into writing. much evidence consisted of written affidavits. there was no jury. the chancery court did not record its decisions apparently because it did not see itself s bound by precedents. witnesses could be sworn in to state pertinent facts necessary for full understanding and adjudication of cases, because they are reliable now that there is no unlicensed livery and maintenance and because jurors no longer necessarily know all the relevant facts. when acting as the highest court, the house of lords was presided over by the chancellor, who sat on his prescribed place on the wool sacks. it had the following jurisdiction: trial of peers for high treason and serious felony, appeals on writs of error from courts of the common law, and impeachment. the house of lords served as judge of impeachment cases, whereas the house of commons served as fact finders. the leet court and sheriff's turn court have much less jurisdiction. they may dispose of presentments of trespasses and nuisances, but not felony or question of freehold. such presentments are made by a set of at least twelve men, and the presented person is amerced there and then. chapter 13 the times: 1558-1601 queen elizabeth i was intelligent, educated, and wise about human nature. when young, she was a brilliant student and studied the bible, and greek and roman history, philosophy, literature, and oratory. she wrote in english, latin, french, and italian. she read greek, including the greek testament, greek orators, and greek dramatists at age seven, when the first professorship of greek was founded at cambridge university. learning from books was one of her highest values throughout her life. she was so influenced by her reading of cicero that she acquired his style of writing. her chief secretary william cecil was so guided by cicero's "offices" that he carried a copy in his pocket. cicero opined that government officials had a duty to make the safety and interest of citizens its greatest aim and to influence all their thoughts and endeavors without ever considering personal advantage. government was not to serve the interest of any one group to the prejudice or neglect of the rest, for then discord and sedition would occur. furthermore, a ruler should try to become loved and not feared, because men hated those whom they feared, and wished dead those whom they hated. therefore obedience proceeding from fear could not last, whereas that which was the effect of love would last forever. an oppressor ruling by terror will be resented by the citizens, who in secret will choose a worthier person. then liberty, having been chained up, would be unleashed more fiercely than otherwise. to obtain the peoples' love, a ruler should be kind and bountiful. to obtain the peoples' trust, a ruler should be just, wise, and faithful. to demonstrate this, a ruler should be eloquent in showing the people an understanding better than theirs, the wisdom to anticipate events, and the ability to deal with adverse events. and this demonstration should be done with modesty. one cannot get the peoples' trust by vain shows, hypocritical pretenses, composed countenances, and studied forms of words. the first goal of a ruler is to take care that each individual is secured in the quiet enjoyment of his own property. the second goal is to impose taxes that are not burdensome. the third goal is to furnish the people with necessaries. the law should be enforced keeping in mind that its fundamental purpose is to keep up agreement and union among citizens. elizabeth cared deeply for the welfare of all citizens of whatever class. she was sensitive to public opinion and was loved by her people. she respected truth and was sincere, avoiding guile or fraud. she claimed that she had never dishonored her tongue with a falsehood to anyone. she expected that any covert manipulations by monarchs would be found out and therefore would damage their credibility. "it becometh therefor all of our rank to deal sincerely; lest if we use it not, when we do it we be hardly believed." she was frugal and diplomatically avoided unnecessary wars, saying that her purse was the pockets of her people. england was a small protestant nation threatened by the larger catholic nations of france and spain. when elizabeth flirted and talked of marriage with foreign princes, they laid aside any thoughts of conquering england by war, hoping to obtain it my marriage. not only did she not seek to conquer other lands, but she turned down an invitation to rule the netherlands. her credit reputation was so good that she could always get loans at small rates of interest from other countries. tudor government was paternalistic, curtailing cutthroat competition, fixing prices and wages, and licensing production under grants of monopoly to achieve a stable and contented society and a fair living for all. elizabeth prayed for divine guidance as in this prayer: "almighty god and king of all kings, lord of heaven and earth, by whose leave earthly princes rule over mortals, when the most prudent of kings who administered a kingdom, solomon, frankly confessed that he was not capable enough unless thou broughtst him power and help, how much less am i, thy handmaid, in my unwarlike sex and feminine nature, adequate to administer these thy kingdoms of england and of ireland, and to govern an innumerable and warlike people, or able to bear the immense magnitude of such a burden, if thou, most merciful father didst not provide for me (undeserving of a kingdom) freely and against the opinion of many men. instruct me from heaven, and give help so that i reign by thy grace, without which even the wisest among the sons of men can think nothing rightly. send therefore, o inexhaustible fount of all wisdom, from thy holy heaven and the most high throne of thy majesty, thy wisdom to be ever with me, that it may keep watch with me in governing the commonwealth, and that it may take pains, that it may teach me, thy handmaid, and may train me that i may be able to distinguish between good and evil, equity and iniquity, so as rightly to judge thy people, justly to impose deserved punishments on those who do harm, mercifully to protect the innocent, freely to encourage those who are industrious and useful to the commonwealth. and besides, that i may know what is acceptable to thee alone, vouchsafe that i wish, dare, and can perform it without paying respect to any earthly persons or things. so that when thou thyself, the just judge, who askest many and great things from those to whom many and great things are entrusted, when thou requirest an exact accounting, charge me not with badly administering my commonwealth and kingdom. but if by human thoughtlessness or infirmity thy handmaid strays from the right in some thing, absolve me of it by thy mercy, most high king and most mild father, for the sake of thy son jesus christ; and at the same time grant that after this worldly kingdom has been exacted of me, i may enjoy with thee an eternity in thy heavenly and unending kingdom, through the same jesus christ, thy son and the assessor of thy kingdom, our lord and mediator. to whom with thee and with the holy spirit, one everlasting king, immortal, invisible, only-wise god, be all honor and glory forever and ever, amen. elizabeth promoted commercial speculations, which diffused a vast increase of wealth among her people. the elizabethan era was one of general prosperity. her good spirits and gayness created a happy mood in the nation. she loved dancing and madrigal music was popular. she came to dress elaborately and fancifully. her dresses were fitted not only at the waist, but along the torso by a long and pointed bodice stiffened with wood, steel, or whalebone. her skirt was held out with a petticoat with progressively larger hoops. there were two layers of skirt with the top one parted to show the bottom one. the materials used were silks, satins, velvets, and brocades. on her dress were quiltings, slashings, and embroidery. it was covered with gold ornaments, pearls, gems, and unusual stones from america. she wore decorated gloves. ladies copied her and discarded their simple over-tunics for elaborate dresses. the under-tunic was now becoming a petticoat and the over-tunic a dress. their under-tunics became petticoats. often they also wore a fan with a mirror, a ball of scent, a miniature portrait of someone dear to them, and sometimes a watch. single ladies did not wear hats, but had long, flowing hair and low cut dresses showing their bosoms. married ladies curled their hair and wore it in high masses on their heads with jewels interwoven into it. both gentlemen and ladies wore hats both indoors and outside and large, pleated collars around their necks (with the newly discovered starch), perfume, rings with stones or pearls, and high-heeled shoes. gentlemen's' tight sleeves, stiffened and fitted doublet with short skirt, and short cloak were ornamented and their silk or velvet hats flamboyant, with feathers. at their leather belts they hung pouches and perhaps a watch. they wore both rapiers [swords with cutting edges] and daggers daily as there were many quarrels. there were various artistic beard cuts and various lengths of hair, which was often curled and worn in ringlets. barbers sought to give a man a haircut that would favor his appearance, for instance a long slender beard for a round face to make it seem narrower and a broad and large cut for a lean and straight face. men now wore stuffed breeches and stockings instead of long hosen. some wore a jeweled and embroidered codpiece between their legs to emphasize their virility. both gentlemen and ladies wore silk stockings and socks over them and then boots. coats dipped in boiled linseed oil with resin served as raincoats. both men and women wore velvet or wool full length nightgowns with long sleeves and fur lining and trimming to bed, which was the custom for the next 150 years. fashions changed every year due to the introduction of cheaper, lighter, and less durable cloths by immigrant craftsmen. when elizabeth became old, she had a wig made to match her youthful long red hair. other ladies then began wearing wigs. every few years, elizabeth issued a proclamation reminding people of the apparel laws and reiterating certain provisions which had been disregarded. for instance, only the royal family and dukes and marquises in mantles [cloaks] of the garter could wear the color purple. one had to be at least an earl to wear gold or silver or sable. only dukes, marquises, earls and their children, barons, and knights of the order could wear imported wool, velvet, crimson, scarlet, or blue, or certain furs. except that barons' sons, knights, or men that could dispend at least 200 pounds yearly could wear velvet in gowns or coats, embroidery, and furs of leopards. spurs, swords, rapiers, daggers, and woodknives were restricted to knights and barons' sons or higher. a man who could dispend at least 100 pounds per year could wear taffeta, satin, damask, or cloth made of camels' hair and silk, in his outer garments. one had to be the son and heir or the daughter of a knight or wife of said son or a man who could dispend 20 pounds yearly or had 200 pounds worth in goods to wear silk in one's hat, bonnet, nightcap, girdle, scabbard, or hose. yeomen, husbandmen, serving men, and craftsmen were very restricted in what they could wear. poor men wore skirted fustian tunics, loose breeches, and coarse stockings or canvas leggings. women spent much of their time doing needlework and embroidery. since so many of the women who spent their days spinning were single, unmarried women became known as "spinsters". children wore the same type of apparel as their elders. they were given milk at meals for good growth. it was recognized that sickness could be influenced by diet and herbs. sickness was still viewed as an imperfect balance of the four humors. there were many lifestyle possibilities in the nation: gentleman, that is one who owned land or was in a profession such as a attorney, physician, priest or who was a university graduate, government official, or a military officer; employment in agriculture, arts, sciences; employment in households and offices of noblemen and gentlemen; self-sufficient farmers with their own farm; fisherman or mariner on the sea or apprentice of such; employment by carriers of grain into cities, by market towns, or for digging, seeking, finding, getting, melting, fining, working, trying, making of any silver, tin, lead, iron, copper, stone, coal; glassmaker. typical wages in the country were: field-workers 2-3d. a day, ploughmen 1s. a week with board, shepherd 6d. a week and board, his boy 2 1/2 d., hedgers 6d. a day, threshers 3-7d. depending on the grain, thatching for five days 2d., master mason or carpenter or joiner 4d. a day and food or 8d. without food, a smith 2d. a day with food, a bricklayer 2 1/2 d. a day with food, a shoemaker 2d. a day with food. these people lived primarily on food from their own ground. there was typical work for each month of the year in the country: january ditching and hedging after the frost broke, february catch moles in the meadows, march protect the sheep from prowling dogs, april put up hop poles, sell bark to the tanner before the timber is felled, fell elm and ash for carts and ploughs, fell hazel for forks, fell sallow for rakes, fell horn for flails, may weed and hire children to pick up stones from the fallow land, june wash and shear the sheep, july hay harvest, august wheat harvest, september and october gather the fruit, sell the wool from the summer shearing, stack logs for winter, buy salt fish for lent in the town and lay it up to dry, november have the chimneys swept before winter, thresh grain in the barn, december grind tools, repair yokes, forks, and farm implements, cover strawberry and flower beds with straw to protect them from the cold, split kindling wood with beetle and wedge, tan their leather, make leather jugs, make baskets for catching fish, and carve wood spoons, plates, and bowls. there was a wave of building and renovation activity in town and country. housing is now, for the first time, purely for dwelling and not for defense. houses were designed symmetrically with decorative features instead of a haphazard addition of rooms. windows were large and put on the outer walls instead of just inside the courtyard. a scarcity of timber caused proportionally more stone to be used for dwelling houses and proportionately more brick to be used for royal palaces and mansions. the rest of the house was plaster painted white interspersed with vertical, horizontal, and sloping timber, usually oak, painted black. there were locks and bolts for protection from intruders. the hall was still the main room, and usually extended up to the roof. richly carved screens separated the hall from the kitchen. the floors were stone or wood, and sometimes tile. they were often covered with rushes or plaited rush mats, on which incomers could remove the mud from their boots. some private rooms may have carpets on the floor. walls were smoothly plastered or had carved wood paneling to control drafts. painted cloths replaced tapestries on walls. iron stands with candles were hung from the ceiling and used on tables. plastered ceilings and a lavish use of glass made rooms lighter and cozy. broad and gracious open stairways with carved wood banisters, which replaced the narrow winding stone steps of a circular stairwell. most houses had several ornamented brick chimneys and clear, but uneven, glass in the windows. there were fireplaces in living rooms, dining rooms, kitchen, and bedrooms, as well as in the hall and great chamber. parlors were used for eating and sitting only, but not for sleeping. closets were rooms off bedrooms in which one could read and write on a writing table, and store one's books, papers, maps, calendar, medals, collections, rarities, and oddities. sometimes there was a study room or breakfast room as well. a gentleman used his study not only to read and to write, but to hold collections of early chronicles, charters, deeds, copied manuscripts, and coins that reflected the budding interest in antiquarianism; and to study his family genealogy, for which he had hired someone to make an elaborate diagram. he was inclined to have a few classical, religious, medical, legal, and political books there. rooms were more spacious than before and contained oak furniture such as enclosed cupboards, cabinets, buffets from which food could be served, tables, chairs and benches with backs and cushions, sometimes with arms, lidded chests for storing clothes and linens, and occasionally chests of drawers or wardrobes, either hanging or with shelves, for clothes. chests of drawers developed from a drawer at the bottom of a wardrobe. carpeting covered tables, chests, and beds. family portraits decorated some walls, usually in the dining room. great houses had a wardrobe chamber with a fireplace in front of which the yeoman of the wardrobe and his assistants could repair clothes and hangings. separate bedchambers replaced bed-sitting rooms. bedrooms all led out of each other. the lady's chamber was next to her lord's chamber, and her ladies' chambers were close to her chamber. but curtains on the four poster beds with tops provided privacy and warmth. beds had elaborately carved bedsteads, sheets, and a feather cover as well as a feather mattress. often family members, servants, and friends shared the same bed for warmth or convenience. each bedroom typically had a cabinet with a mirror, e.g. of burnished metal or crystal, and comb on top. one brushed his teeth with tooth soap and a linen cloth, as physicians advised. each bedroom had a pitcher and water bowl, usually silver or pewter, for washing in the morning, and a chamber pot or a stool with a hole over a bucket for nighttime use, and also fragrant flowers to override the unpleasant odors. the chamber pots and buckets were emptied into cesspits. a large set of lodgings had attached to it latrines consisting of a small cell in which a seat with a hole was placed over a shaft which connected to a pit or a drain. the servants slept in turrets or attics. elizabeth had a room just for her bath. more than medieval castles and manor houses, mansions were designed with privacy in mind. breakfast was substantial, with meat, and usually eaten in one's bedroom. the great hall, often hung around with bows, pikes, swords, and guns, was not abandoned, but the family took meals there only on rare occasions. instead they withdrew to a parlor, for domestic use, or the great chamber, for entertaining. parlors were situated on the ground floor: the family lived and relaxed there, and had informal meals in a dining parlor. the formal or "state" rooms were on the first floor above the ground floor, usually comprising a great chamber, a withdrawing chamber, one or more bedchambers, and a long gallery. each room had carved chairs and cabinets. taking a meal in the great chamber involved the same ceremonial ritual as in the manorial great chamber dating from the 1400s. the table was covered with a linen cloth. the lady of the house sat in a chair at the upper end of the table and was served first. people of high rank sat at her end of the table "above" the fancy silver salt cellar and pepper. people of low rank sat "below" it near the other end of the table. grace was said before the meal. noon dinner and supper were served by cupbearer, sewer, carver, and assistants. fine clear italian glass drinking vessels replaced even gold and silver goblets. food was eaten from silver dishes with silver spoons. some gentry used two-pronged forks. meats were plentiful and varied: e.g. beef, mutton, veal, lamb, kid, pork, hare, capon, red deer, fish and wild fowl as well as the traditional venison and brawn [boar]. kitchen gardens and orchards supplied apricots, almonds, gooseberries, raspberries, melons, currants, oranges, and lemons as well as the traditional apples, pears, plums, mulberries, quinces, pomegranates, figs, cherries, walnuts, chestnuts, hazel nuts, filberts, almonds, strawberries, blackberries, dewberries, blueberries, and peaches. also grown were sweet potatoes, artichokes, cabbages, turnips, broad beans, peas, pumpkins, cucumbers, radishes, carrots, celery, parsnips, onions, garlic, leeks, endive, capers, spinach, sorrel, lettuce, parsley, mustard, cress, sage, tarragon, fennel, thyme, mint, savory, rhubarb, and medicinal herbs. the well-to-do started to grow apricots, peaches, and oranges under glass. sugar was used to make sweet dishes. toothpicks made of brass or silver or merely a stiff quill were used. after the meal, some men and women were invited for conversation in a withdrawing or drawing chamber. some might take a walk in the gardens. after the upper table was served, the food was sent to the great hall to the steward and high household officers at the high table and other servants: serving men and women, bakers, brewers, cooks, pot cleaners, laundresses, shepherds, hogherds, dairy maids, falconers, huntsmen, and stable men. what was left was given to the poor at the gates of the house. great chambers were used primarily for meals, but also for music; dancing; plays; masques; playing cards, dice, backgammon, or chess; and daily prayers if there was no chapel. the idea of a long gallery was copied from henry vii and was used for exercise, recreation such as music and dancing, and private conversations. without the necessity of fortifications, the estate of a noble or gentleman could spread out to include not only a garden for the kitchen, but extensive orchards and beautiful formal gardens of flowers and scrubs, sometimes with fountains and maybe a maze of hedges. trees were planted, pruned, and grafted onto each other. householders had the responsibility to teach their family and servants religion and morals, and often read from the bible to them. many thought that the writers of the bible wrote down the exact words of god, so the passages of the bible should be taken literally. a noble lord made written rules with penalties for his country household, which numbered about a hundred, including family, retainers, and servants. he enforced them by fines, flogging, and threats of dismissal. the lady of the house saw that the household, held together as an economic and social unit. the noble's family, retainers, guests, and the head servants, such as chaplain and children's tutor, and possibly a musician, dined together at one table. the family included step children and married sons and daughters with their spouses. young couples often lived with the parents of one of them. chandeliers of candles lit rooms. there were sandglass clocks. popular home activities included reading, conversation, gardening, and music-making. smoking tobacco from a clay pipe and taking snuff became popular with men. for amusement, one of the lord's household would take his place in managing the estate for twelve days. he was called the "lord of misrule", and mimicked his lord, and issued comic orders. clothes were washed in rivers and wells. at spring cleanings, windows were opened, every washable surface washed, and feather beds and pillows exposed to the sun. most dwellings were of brick and stone. only a few were of wood or mud and straw. the average house was now four rooms instead of three. yeomen might have six rooms. a weaver's house had a hall, two bedrooms, and a kitchen besides the shop. farmers might have two instead of one room. a joiner had a one-room house with a feather bed and bolster. even craftsmen, artificers and simple farmers slept on feather beds on bed frames with pillows, sheets, blankets, and coverlets. loom tapestry and painted cloth was hung to keep out the cold in their single story homes. they also had pewter spoons and plates, instead of just wood or earthenware ones. even the poorer class had glass drinking vessels, though of a coarse grade. the poor still used wooden plates and spoons. laborers had canvas sheets. richer farmers would build a chamber above the hall, replacing the open hearth with a fireplace and chimney at a wall. poorer people favored ground floor extensions, adding a kitchen or second bedchamber to their cottages. kitchens were often separate buildings to reduce the risk of fire. roasting was done on a spit and baking in irons boxes placed in the fire or in a brick oven at the side of the fireplace. sometimes dogs were used to turn a spit by continual running in a treadmill. some people lived in hovels due to the custom in many places that a person could live in a home he built on village waste land if he could build it in one night. yeomen farmers still worked from dawn to dusk. mixed farming began. in this, some of the arable land produced food for man and the rest produced food for sheep, cattle, pigs, and poultry. this was made possible by the introduction of clover, artificial grasses, and turnip and other root crops for the animals. since the sheep ate these crops in the field, they provided manure to maintain the fertility of the soil. this meant that many animals could be maintained throughout the winter instead of being slaughtered and salted. farmers' wives used looms as well as spinning wheels with foot treadles. since animals could now be kept through the winter, salted meat and salted fish were no longer the staple food of the poorer people during the winter. farm laborers ate soup, porridge, milk, cheese, bacon, and beer or mead (depending on the district), and dark barley or rye bread, which often served as his plate. gentlemen ate wheat bread. there was a scarcity of fruits and vegetables that adversely affected the health of the affluent as well as of the poor due to the overall decline in farming. during winter, there were many red noses and coughing. the value of grain and meat rose compared to wool. grain became six times its value in the previous reign. wool fell from 20s.8d. per tod to 16s. so sheep farming, which had taken about 5% of the arable land, was supplanted somewhat by crop raising, and the rural population could be employed for agriculture. in some places, the threefold system of rotation was replaced by alternating land used for crops with that used for pasture. the necessity of manuring and the rotation of crops and grasses such as clover for enrichment of the soil were recognized. wheat, rye, barley, peas, and beans were raised. there was much appropriation of common land by individual owners by sale or force. many farms were enclosed by fences or hedges so that each holder could be independent of his neighbors. red and black currants, rhubarb, apricots, and oranges were now grown. these independent farmers could sell wool to clothiers, and butter, cheese, and meat to the towns. they also often did smithwork and ironwork, making nails, horseshoes, keys, locks, and agricultural implements to sell. a laborer could earn 6d. a day in winter and 7d. a day in summer. unfree villeinage ceased on the royal estates. but most land was still farmed in common and worked in strips without enclosure. elizabeth made several proclamations ordering the enclosure of certain enclosed land to be destroyed and the land returned to tillage. windmills now had vanes replacing manual labor to change the position of their sails when the wind direction changed. prosperous traders and farmers who owned their own land assumed local offices as established members of the community. the population of the nation was about five million. population expansion had allowed landlords to insist on shorter leases and higher rents, instead of having to choose between accepting a long lease and good rent or allowing their estates to pass out of cultivation. over 50% of the population were on the margin of subsistence. 90% of the population lived in the countryside and 5% in the london and 5% in the other towns. life expectancy was about 40 years of age. over 50% was under the age of 23, while only about 9% were over 60. fluctuations in rates of population growth were traceable back to bad harvests and to epidemics and the two were still closely related to each other: "first dirth and then plague". most of london was confined within the city wall. there were orchards and gardens both inside and outside the walls, and fields outside. flower gardens and nurseries came into existence. no part of the city was more than a ten minute walk to the fields. some wealthy merchants had four story mansions or country houses outside the city walls. the suburbs of the city of london grew in a long line along the river; on the west side were noblemen's houses on both sides of the strand. east of the tower was a seafaring and industrial population. goldsmiths' row was replete with four story houses. a few wealthy merchants became moneylenders for interest, despite the law against usury. the mayor of london was typically a rich merchant prince. each trade occupied its own section of the town and every shop had its own signboard, for instance, hat and cap sellers, cloth sellers, grocers, butchers, cooks, taverns, and booksellers. many of the london wards were associated with a craft, such as candlewick ward, bread st. ward, vintry ward, and cordwainer ward. some wards were associated with their location in the city, such as bridge ward, tower ward, aldgate ward, queenhithe ward, and billingsgate ward. people lived at the back or on the second floor of their shops. in the back yard, they grew vegetables such as melons, carrots, turnips, cabbages, pumpkins, parsnips, and cucumbers; herbs; and kept a pig. the pigs could still wander through the streets. hyde park was the queen's hunting ground. london had a small zoo of ten animals, including a lion, tiger, lynx, and wolf. london was england's greatest manufacturing city. by 1600 the greatest trading companies in london ceased to be associated only with their traditional goods and were dominated by merchants whose main interest was in the cloth trade. ambitious merchants joined a livery company to become freemen of the city and for the status and social benefits of membership. the companies still made charitable endowments, had funeral feasts, cared for the welfare of guild members, and made lavish displays of pageantry. they were intimately involved with the government of the city. they supplied members for the court of aldermen, which relied on the companies to maintain the city's emergency grain stores, to assess and collect taxes, to provide loans to the crown, to control prices and markets, to provide armed men when trouble was expected, and to raise armies for the crown at times of rebellion, war, or visits from foreign monarchs. from about 1540 to 1700, there were 23% involved in cloth or clothing industries such as weavers, tailors, hosiers, haberdashers, and cappers. 9% were leatherworkers such as skinners; tanners; those in the heavy leather crafts such as shoemakers, saddlers, and cobblers; and those in the light leather crafts such as glovers and pursers. another 9% worked in metals, such as the armorers, smiths, cutlers, locksmiths, and coppersmiths. 8% worked in the building trades. the victualing trades, such as bakers, brewers, butchers, costermongers [sold fruit and vegetables from a cart or street stand], millers, fishmongers, oystermen, and tapsters [bartender], grew from 9% before 1600 to 16% by 1700. of london's workforce, 60% were involved in production; 13% were merchants before 1600; 7% were merchants by 1700; 7% were transport workers such as watermen, sailors, porters, coachmen, and shipwrights; and 5-9% were professionals and officials (this number declining). life in london was lived in the open air in the streets. the merchant transacted business agreements and the attorney saw his clients in the street or at certain pillars at st. paul's church, where there was a market for all kinds of goods and services, including gentlemen's valets, groceries, spirits, books, and loans, which continued even during the daily service. some gentlemen had offices distant from their dwelling houses such as attorneys, who had a good income from trade disputes and claims to land, which often changed hands. plays and recreation also occurred in the streets, such as performances by dancers, musicians, jugglers, clowns, tumblers, magicians, and men who swallowed fire. the churches were continuously open and used by trades and peddlers, including tailors and letter-writers. water carriers carried water in wood vessels on their shoulders from the thames river or its conduits to the inhabitants three gallons at a time. a gentleman concocted an engine to convey thames water by lead pipes up into men's houses in a certain section of the city. in 1581, a man took out a lease on one of the arches of london bridge. there he built a waterwheel from which he pumped water to residents who lived beside the bridge. soldiers, adventurers, physicians, apprentices, prostitutes, and cooks were all distinguishable by their appearances. an ordinance required apprentices to wear long blue gowns and white breeches with stockings, with no ornamentation of silk, lace, gold or silver and no jewelry. they could wear a meat knife, but not a sword or dagger. apprentices lived with their masters and worked from 6 or 7 a.m. to 9 p.m. some people knitted wool caps as they walked to later sell. there were sections of town for booksellers, butchers, brewers, hosiers, shoemakers, curriers, cooks, poulters, bow makers, textwriters, pattenmakers, and horse and oxen sellers. large merchant companies had great halls for trade, such as the mercers, grocers, drapers, fishmongers, and goldsmiths. the other great guilds were the skinners, merchant tailers, salters, haberdashers, ironmongers, vintners, and clothworkers. smaller guilds were those of the bakers, weavers, fruiterers, dyers, thames watermen and lightermen, carpenters, joiners, turners, and parish clerks. the guilds insured quality by inspecting goods for a fee. about 1571, mercer and merchant adventurer thomas gresham established the royal exchange as a place for merchants and brokers to meet for business purposes. it became the center of london's business life. its great bell rang at midday and at 6 p.m. its courtyard was lined with shops that rented at 50s. yearly and became a popular social and recreational area. gresham formulated his law that when two kinds of money of equal denomination but unequal intrinsic value are in circulation at the same time, the one of greater value will tend to be hoarded or exported, i.e. bad money will drive good money out of circulation. the work-saving knitting frame was invented in 1589 by minister william lee; it knit crosswise loops using one continuous yarn and was operated by hand. the stocking knitters, who knitted by hand, put up a bitter struggle against its use and chased lee out of the country. but it did come into use. some framework stocking knitters paid frame rent for the use of their knitting frames. frame knitting became a scattered industry. by 1600 basement services were frequently found in town houses built on restricted sites in london. lastly, provision of water supplies and improved sanitary arrangements reflected concern with private and public health. there was virtually no drainage. in the case of town houses, some owners would go to considerable effort to solve drainage problems, often paying cash to the civic authorities, but sometimes performing some service for the town at court or at westminster, in return for unlimited water or some drainage. most affluent households, including the queen's moved from house to house, so their cesspits could be cleaned out and the vacated buildings aired after use. a few cesspits were made air tight. otherwise, there was extensive burning of incense. refuse was emptied out of front doors and shoveled into heaps on street corners. it was then dumped into the thames or along the highways leading out of town. people put on perfume to avoid the stench. by 1600, the first toilet and water closet, where water flushed away the waste, was built. this provided a clean toilet area all year round. but these toilets were not much used because of sewer smells coming from them. the sky above london was darkened somewhat by the burning of coal in houses. taverns served meals as well as ale. they were popular meeting places for both men and women of all backgrounds to met their friends. men went to taverns for camaraderie and to conduct business. women usually went to taverns with each other. two taverns in particular were popular with the intelligentsia. music was usually played in the background and games were sometimes played. beer made with hops and malt was introduced and soon there were beer drinking contests. drunkenness became a problem. at night, the gates of the city were closed and citizens were expected to hang out lanterns. the constable and his watchmen carried lanterns and patrolled the streets asking anyone they saw why they were out so late at night. crime was rampant in the streets and criminals were executed near to the crime scene. there were a few horse-drawn coaches with leather flaps or curtains in the unglazed windows to keep out the weather. the main thoroughfare in london was still the thames river. nobles, peers, and dignitaries living on the thames had their own boats and landings. also at the banks, merchants of all nations had landing places where ships unloaded, warehouses, and cellars for goods and merchandise. swans swam in the clear bright water. watermen rowed people across the thames for a fee. in southwark were theaters, outlaws, cutpurses, prostitutes, and prisons. in 1550 southwark became the 26th and last ward of the city. in the summer, people ate supper outside in public. as of old times, brokers approved by the mayor and aldermen made contracts with merchants concerning their wares. some contracts included holding wares as security. some craftsmen and manual workers extended this idea to used garments and household articles, which they took as pawns, or security for money loaned. this began pawn brokerage, which was lucrative. the problem was that many of the items pawned had been stolen. elizabeth had good judgment in selecting her ministers and advisors for her privy council, which was organized like henry viii's privy council. the queen's privy council of about twelve ministers handled foreign affairs, drafted official communiques, issued proclamations, supervised the county offices: the 1500 justices of the peace, chief constables, sheriffs, lord lieutenants, and the county militias. it fixed wages and prices in london, advised justices of the peace on wages elsewhere, and controlled exports of grain to keep prices down and supplies ample. it banned the eating of meat two days a week so that the fishing industry and port towns would prosper. when grain was scarce in 1596, elizabeth made a proclamation against those ingrossers, forestallers, and ingraters of grain who increased its price by spreading false rumors that it was scarce because much of it was being exported, which was forbidden. there were labor strikes in some towns for higher wages after periods of inflation. in 1591, london authorities rounded up the sturdy vagabonds and set them to work cleaning out the city ditches for 4d. per day. elizabeth did not allow any gentleman to live in london purely for pleasure, but sent those not employed by the court back to their country manors to take care of and feed the poor of their parishes. her proclamation stated that "sundry persons of ability that had intended to save their charges by living privately in london or towns corporate, thereby leaving their hospitality and the relief of their poor neighbors, are charged not to break up their households; and all others that have of late time broken up their households to return to their houses again without delay." she never issued a license for more than 100 retainers. she was partially successful in stopping justices of the peace and sheriffs from wearing the liveries of great men. she continued the policy of henry vii to replace the rule of force by the rule of law. service of the crown and influence at court became a better route to power and fortune than individual factions based on local power structures. at the lowest level, bribery became more effective than bullying. the qualities of the courtier, such as wit, and the lawyer became more fashionable than the qualities of the soldier. most of the men in elizabeth's court had attended a university, such as francis bacon, son of the lord keeper, who became a writer, attorney, member of the commons, and experimental philosopher, and walter ralegh, the writer and sea fighter, who had a humble origin. many wives and daughters of privy councilors attended the queen in her privy chamber. most of the knights or gentlemen of the royal household were also members of parliament or justices of the peace for certain districts in the counties. instead of the office of chancellor, which was the highest legal office, elizabeth appointed a man of common birth to be lord keeper of the great seal; she never made a lord keeper a peer. elizabeth encouraged her lords to frankly make known their views to her, in public or in private, before she decided on a course of action. she had affectionate nicknames for her closest courtiers, and liked to make puns. the rooms of the queen were arranged as they had been under henry viii: the great hall was the main dining room where the servants ate and which elizabeth attended on high days and holidays; the great chamber was the main reception room, where her gentlemen and yeomen of the guard waited; the presence chamber was where she received important visitors; beyond lay her privy chamber and her bedchamber. she ate her meals in the privy chamber attended only by her ladies. she believed that a light supper was conducive to good health. the lord chamberlain attended the queen's person and managed her privy chamber and her well-born grooms and yeomen and ladies-in-waiting. the lord steward managed the domestic servants below the stairs, from the lord treasurer to the cooks and grooms of the stable. the court did not travel as much as in the past, but became associated with london. elizabeth took her entire court on summer visits to the country houses of leading nobility and gentry. courtiers adopted symbolic "devices" as statements of their reaction to life or events, e.g. a cupid firing arrows at a unicorn signified chastity under attack by sexual desire. they carried them enameled on jewels, had them painted in the background of their portraits, and sometimes had them expressed on furniture, plate, buildings, or food. the authority of the queen was the authority of the state. elizabeth's experience led her to believe that it was most important for a monarch to have justice, temperance, magnanimity, and judgment. she claimed that she never set one person before another, but upon just cause, and had never preferred anyone to office for the preferrer's sake, but only when she believed the person worthy and fit for the office. she never blamed those who did their best and never discharged anyone form office except for cause. further, she had never been partial or prejudiced nor had listened to any person contrary to law to pervert her verdicts. she never credited a tale that was first told to her and never corrupted her judgment with a censure before she had heard the cause. she did not think that the glory of the title of monarch made all she did lawful. to her, clemency was as eminent in supreme authority as justice and severity. secular education and especially the profession of law was now the route for an able but poor person to rise to power, rather than as formerly through military service or through the church. the first stage of education was primary education, which was devoted to learning to read and write in english. this was carried out at endowed schools or at home by one's mother or a tutor. the children of the gentry were usually taught in their homes by private teachers of small classes. many of the poor became literate enough to read the bible and to write letters. however, most agricultural workers and laborers remained illiterate. they signed with an "x", which represented the christian cross and signified its solemnity. children of the poor were expected to work from the age of 6 or 7. the next stage of education was grammar [secondary] school or a private tutor. a student was taught rhetoric (e.g. poetry, history, precepts of rhetoric, and classical oratory), some logic, and latin and greek grammar. english grammar was learned through latin grammar and english style through translation from latin. as a result, they wrote english in a latin style. literary criticism was learned through rhetoric. there were disputations on philosophical questions such as how many angels could sit on a pin's point, and at some schools, orations. the students sat in groups around the hall for their lessons. the boys and some girls were also taught hawking, hunting and archery. there were no playgrounds. the grammar student and the undergraduate were tested for proficiency by written themes and oral disputations, both in latin. the middle classes from the squire to the petty tradesman were brought into contact with the works of the best greek and roman writers. the best schools and many others had the students read cicero, the "de officiis", the epistles and orations, and some of ovid, terence, sallust, virgil, some medieval latin works, the "distichs" of cato, and sometimes erasmus and sir thomas more. the students also had to repeat prayers, recite the lord's prayer and the ten commandments, and to memorize catechisms. because the students came from the various social classes such as gentlemen, parsons, yeomen, mercers, and masons, they learned to be on friendly and natural terms with other classes. a typical school-day lasted from 7:00 am to 5:00 pm. there were so many grammar schools founded and financed by merchants and guilds such as the mercers and fishmongers that every incorporated town had at least one. grammar schools were headed by schoolmasters, who were licensed by the bishop and paid by the town. flogging with a birch rod was used for discipline. many grammar schools had preparatory classes called "petties" for boys and girls who could not read and write to learn to do so. the girls did not usually stay beyond the age of nine. this was done by a schoolmaster's assistant, a parish clerk, or some older boys. however, the grammar schools did not become the breeding grounds for humanist ideas because the sovereigns were faced with religious atomism and political unrest, so used the grammar schools to maintain public order and achieve political and religious conformity. some founders of grammar schools linked their schools with particular colleges in the universities following the example of winchester being associated with new college, oxford, and eton with king's college, cambridge. the new charter of westminster (1560) associated the school with christ church, oxford and trinity college, cambridge. the government of oxford university, which had been catholic, was taken from the resident teachers and put into the hands of the vice-chancellor, doctors, heads of colleges, and proctors. cambridge already had a strong reformed element from erasmus' influence. oxford university and cambridge university were incorporated to have a perpetual existence for the virtuous education of youth and maintenance of good literature. the chancellors, masters, and scholars had a common seal. oxford was authorized to and did acquire its own printing press. undergraduate students entered about age 16 and resided in rooms in colleges rather than in scattered lodgings. the graduate fellows of the college who were m.a.s of under three years standing had the responsibility, instead of the university, for teaching the undergraduates. this led many to regard their fellowship as a position for life rather than until they completed their post-graduate studies. but they were still required to resign on marrying or taking up an ecclesiastical benefice. the undergraduates were poor scholars or fee-paying members of the college. some of the fee-paying members or gentlemen-commoners or fellow-commoners were the sons of the nobility and gentry and even shared the fellows' table. the undergraduate students were required to have a particular tutors, who were responsible for their moral behavior as well as their academic studies. it was through the tutors that modern studies fit for the education of a renaissance gentleman became the norm. those students not seeking a degree could devise his own course of study with his tutor's permission. less than about 40% stayed long enough to get a degree. many students who were working on the seven year program for a master's degree went out of residence at college after the four year's "bachelor" course. students had text books to read rather than simply listening to a teacher read books to them. in addition to the lecturing of the m.a.s and the endowed university lectureships, the university held exercises every monday, wednesday, and friday in which the student was meant through disputation, to apply the formal precepts in logic and rhetoric to the practical business of public speaking and debate. final examinations were still by disputation. the students came to learn to read latin easily. students acted in latin plays. if a student went to a tavern, he could be flogged. for too elaborate clothing, he could be fined. fines for absence from class were imposed. however, from this time until 1945, a young man's university days were regarded as a period for the "sowing of wild oats". all students had to reside in a college or hall, subscribe to the 39 articles of the university, the queen's supremacy, and the prayer book. meals were taken together in the college halls. the universities were divided into three tables: a fellows' table of earls, barons, gentlemen, and doctors; a second table of masters of arts, bachelors, and eminent citizens, and a third table of people of low condition. professors, doctors, masters of arts and students were all distinguishable by their gowns. undergraduate education was considered to be for the purpose of good living as well as good learning. it was to affect the body, mind, manners, sentiment, and business, instead of just leading to becoming a better disputant. the emphasis on manners came mostly from an italian influence. the university curriculum included latin and greek languages and was for four years. the student spent at least one year on logic (syllogizing, induction, deduction, fallacies, and the application of logic to other studies), at least one year on rhetoric, and at least one year on philosophy. the latter included physics, metaphysics, history, law, moral and political philosophy, modern languages, and ethics (domestic principles of government, military history, diplomatic history, and public principles of government), and mathematics (arithmetic, geometry, algebra, music, optics, astronomy). the astronomy taught was that of ptolemy, whose view was that the celestial bodies revolved around a spherical earth, on which he had laid out lines of longitude and latitude. there were lectures on greek and latin literature, including aristotle, plato, and cicero. there were no courses on english history in the universities. about 1564, the curriculum was changed to two terms of grammar, four terms of rhetoric, five terms of dialectic (examining ideas and opinions logically, e.g. ascertaining truth by analyzing words in their context and equivocations), three terms of arithmetic, and two terms of music. there were now negative numbers, irrational numbers such as square roots of non-integers, and imaginary numbers such as square roots of negative numbers. the circumference and area of a circle could be computed from its radius, and the pythagorean theorem related the three sides of a right triangle. also available were astrology, alchemy (making various substances such as acids and alcohols), cultivation of gardens, and breeding of stock, especially dogs and horses. astronomy, geometry, natural and moral philosophy, and metaphysics were necessary for a master's degree. the university libraries of theological manuscripts in latin were supplemented with many non-religious books. there were graduate studies in theology, medicine, music, and law, which was a merging of civil and canon law together with preparatory work for studying common law at the inns of court in london. in london, legal training was given at the four inns of court. students were called to dinner by a horn. only young gentry were admitted there. a year's residence there after university gave a gentleman's son enough law to decide disputes of tenants on family estates or to act as justice of the peace in his home county. a full legal education gave him the ability to handle all family legal matters, including property matters. many later became justices of the peace or members of parliament. students spent two years in the clerks' commons, and two in the masters' commons. besides reading textbooks in latin, the students observed at court and did work for practicing attorneys. after about four more years' apprenticeship, a student could be called to the outer bar. there was a real bar of iron or wood separating the justices from the attorneys and litigants. as "utter barrister" or attorney, he would swear to "do no falsehood in the court, increase no fees but be contented with the old fees accustomed, delay no man for lucre or malice, but use myself in the office of an attorney within the court according to my learning and discretion, so help me god, amen". students often also studied and attended lectures on astronomy, geography, history, mathematics, theology, music, navigation, foreign languages, and lectures on anatomy and medicine sponsored by the college of physicians. a tour of the continent became a part of every gentleman's education. after about eight years' experience, attorneys could become readers and benchers, the latter of whom made the rules. readers gave lectures. benchers, who were elected by other benchers, were entrusted with the government of their inn of court, and usually were king's counsel. five to ten years later, a few of these were picked by the queen for serjeant at law, and therefore eligible to plead at the bar of common pleas. justices were chosen from the serjeants at law. gresham left the royal exchange to the city and the mercer's company on condition that they use some of its profits to appoint and pay seven lecturers in law, rhetoric, divinity, music, physics, geometry, and astronomy to teach at his mansion, which was called gresham college. they were installed in 1598 according to his will. their lectures were free, open to all, and often in english. they embraced mathematics and new scientific ideas and emphasized their practical applications. a tradition of research and teaching was established in mathematics and astronomy. many people kept diaries. letter writing was frequent at court. most forms of english literature were now available in print. many ladies read aloud to each other in reading circles and to their households. some wrote poetry and did translations. correctness of spelling was beginning to be developed. printers tended to standardize it. there was much reading of romances, jest books, histories, plays, prayer collections, and encyclopedias, as well as the bible. in schools and gentry households, favorite reading was edmund spenser's "faerie queen" about moral virtues and the faults and errors which beset them, erasmus' new testament, "paraphrases", "colloquies", and "adages", sir thomas north's edition of plutarch's "lives of the noble grecians and romans", elyot's "the book named the governor", and hoby's translation of "the courtier". gentlemen read books on the ideals of gentlemanly conduct, such as "institucion of a gentleman" (1555), and laurence humphrey's "the nobles: or of nobilites". francis bacon's "essays or counsels civil and moral" were popular for their wisdom. in them he commented on many subjects from marriage to atheism. he cautioned against unworthy authority, mass opinion, custom, and ostentation of apparent wisdom. he urged the use of words with their correct meaning. at a more popular level were caxton's "the golden legend", baldwin's "mirror for magistrates", foxe's "book of martyrs" about english protestant who suffered at the stake, sensational stories and pamphlets, printed sermons (including those of switzerland's calvin), chronicles, travel books, almanacs, herbals, and medical works. english fiction began and was read. there were some books for children. books were copyrighted, although non-gentlemen writers needed a patron. at the lowest level of literacy were ballads. next to sermons, the printing press was kept busiest with rhymed ballads about current events. printed broadsheets on political issues could be distributed quickly. in london, news was brought to the governor of the news staple, who classified it as authentic, apocryphal, barber's news, tailor's news, etc. and stamped it. books were also censored for matter against the state church. this was carried out through the stationers' company. this company was now, by charter, the official authority over the entire book trade, with almost sole rights of printing. (schools had rights of printing). it could burn other books and imprison their printers. there were language schools teaching french, italian, and spanish to the aspiring merchant and to gentlemen's sons and daughters. italian business techniques were set forth in textbooks for merchants, using italian terms of business: debit (debito), credit (credito), inventory (inventorio), journal (giornal), and cash (cassa). the arithmetic of accounting operations, including multiplication, was described in "an introduction for to lerne to reckonwith the penne or counters" in 1537. accounting advice was extended to farmers as well as merchants in the 1569 "the pathway to perfectness in the accomptes of debitor and creditor" by james peele, a salter of london. it repeated the age-old maxim: ...receive before you write, and write before you pay, so shall no part of your accompt in any wise decay. the 1589 "marchants avizo" by johne browne, merchant of bristol, gave information on foreign currencies and keeping of accounts, and included specimens of various business documents such as insurance policies, and bills of exchange. it also advised: take heed of using a false balance or measure...covet not over familiarity amongst men it maketh thee spend much loss of time. be not hasty in giving credit to every man, but take heed to a man that is full of words, that hath red eyes, that goeth much to law, and that is suspected to live unchaste ... when thou promiseth anything be not stuck to perform it, for he that giveth quickly giveth double ... fear god...know thy prince...love thy parents ...give reverence to thy betters ...be courteous and lowly to all men... be not wise in thine own conceit. the old prohibitions of the now declining canon law were still observed. that is one should not seek wealth for its own sake or beyond what was requisite for a livelihood in one's station, exploit a customer's difficulties to extract an extravagant price, charge excessive interest, or engross to "corner the market". the printing press had made possible the methodizing of knowledge and its dissemination to a lay public. knowledge associated with the various professions, occupations, and trades was no longer secret or guarded as a mystery, to be passed on only to a chosen few. the sharing of knowledge was to benefit the community at large. reading became an out-of-school activity, for instruction as well as for pleasure. in 1565, graphite was discovered in england, and gave rise to the pencil. surveying accuracy was improved with the new theodolite, which determined directions and measured angles and used a telescope that pivoted horizontally and vertically. scientists had the use of an air thermometer, in which a column of air in a glass tube sitting in a dish of water contracted or expanded with changes in the temperature, causing the water to move up or down the tube. william shakespeare, a glovemaker's son, wrote plays about historical events and plays which portrayed various human personalities and their interactions with each other. they were enjoyed by all classes of people. his histories were especially popular. the queen and various earls each employed players and actors, who went on tour as a troupe and performed on a round open-air stage, with people standing around to watch. in london, theaters such as the globe were built specifically for the performance of plays, which before had been performed at inns. the audience applauded and hissed. there were costumes, but no sets. ordinary admission was 2d. before being performed, a play had to be licensed by the master of the revels to make sure that there was nothing detrimental to the peace and public order. elizabeth issued a proclamation forbidding unlicensed interludes or plays, especially concerning religion or government policy on pain of imprisonment for at least fourteen days. the common people still went to morality plays, but also to plays in which historical personages were portrayed, such as richard ii, henry iv, and henry v. some plays were on contemporary issues. musicians played together as orchestras. music and singing was a popular pastime after supper; everyone was expected to participate. dancing was popular with all classes. gentlemen played cards, dice, chess, billiards, tennis, and fenced and had games on horseback. their deer hunting diminished as forests were cut down for agriculture and the deer was viewed as an enemy eating crops. falconry diminished as hedges and enclosures displaced the broad expanses of land. country people enjoyed music, dancing, pantomime shows with masks, hurling, running, swimming, leap frog, blind man's buff, shovelboard played with the hands, and football between villages with the goal to get the ball into one's own village. football and shin-kicking matches often resulted in injuries. they bought ballads from traveling peddlers. early morning dew gathered in may and early june was thought to have special curative powers. there were many tales involving fairies, witches, devils, ghosts, evil spirits, angels, and monsters which were enjoyed by adults as well as children. many people still believed in charms, curses, divination, omens, fate, and advice from astrologers. the ghosts of the earth walked the earth, usually because of some foul play to be disclosed, wrong to be set right, to warn those dear to them of peril, or to watch over hidden treasure. good witches cured and healed. fairies blessed homes, rewarded minor virtues, and punished mild wrongdoing. when fairies were unhappy, the weather was bad. there were parties for children. the merry guild feast was no longer a feature of village life. there were fewer holydays and festivals. the most prosperous period of the laborer was closing. an agricultural laborer's yearly wage was about 154s., but his cost of living, which now included house rent, was about 160s. a year. in 1533, daily wages in the summer for an agricultural laborer were about 4d. and for an artisan 6d. in 1563 in the county of rutland, daily wages for laborers were 7d. in summer and 6d. in winter; and for artisans were 9d. in summer and 8d. in winter. unemployment was widespread. there were endowed hospitals in london for the sick and infirm. there were others for orphans, for derelict children, and for the destitute. they worked at jobs in the hospital according to their abilities. there was also a house of correction for discipline of the idle and vicious by productive work. elizabeth continued the practice of touching people to cure scrofula, although she could not bring herself to fully believe in the reality of such cures, contrary to her chaplain and her physician. in the towns, shop shutters were let down to form a counter at the front of the shop. goods were made and/or stored inside the shop. towns held a market once a week. fairs occurred once or twice a year. at given times in the towns, everyone was to throw buckets of water onto the street to cleanse it. during epidemics in towns, there was quarantine of those affected to stay in their houses unless going out on business. their houses were marked and they had to carry a white rod when outside. the quarantine of a person lasted for forty days. the straw in his house was burned and his clothes treated. people who died had to be buried under six feet of ground. there was an outbreak of plague in london roughly every ten years. there was a pity for the distressed that resulted in towns voting money for a people of a village that had burned down or been decimated by the plague. communities were taxed for the upkeep and relief of the prisoners in the gaols in their communities. queen elizabeth was puzzling over the proper relationship between the crown and the church when richard hooker, a humble scholar, theologian, and clergyman, attempted to find a justification in reason for the establishment of the church of england as an official part of the governing apparatus of the nation. his thinking was a turning point from the medieval notion that god ordered society, including the designation of its monarch and its natural laws. the belief in a divine structure with a great chain of being, beginning with god and working down through the hierarchy of angels and saints to men, beasts, and vegetables, did foster order in society. hooker restated the concept of aristotle that the purpose of society is to enable men to live well. he wrote that although the monarch was head of state and head of religion, the highest authority in civil affairs was parliament, and in religion, the convocation. the monarch had to maintain divine law, but could not make it. from this came the idea that the state derives its authority from the will of the people and the consent of the governed. protestant women had more freedom in marriage and were allowed to participate in more church activities compared to catholic women, but they were not generally allowed to become pastors. due to sensitivities on the part of both catholics and protestants about a female being the head of the church, elizabeth was given the title of "supreme governor" of the church instead of "supreme head". elizabeth was not doctrinaire in religious matters, but pragmatic. she always looked for ways to accommodate all views on what religious aspects to adopt or decline. images, relics, pilgrimages, and rosaries were discouraged. but the catholic practice of kneeling at prayer, and bowing and doffing caps at the name of jesus were retained. also retained was the place of the altar or communion table at the east end of churches, special communion wafers instead of common bread, and elaborate clergy vestments. the communion prayer contained words expressing both the catholic view that the wafer and wine contained the real presence of the body and blood of christ, and the protestant view that they were commemorative only. communion was celebrated only at easter and other great festivals. church services included a sermon and were in accordance with a reformed prayer book and in english, as was the bible. care was even taken not to use words that would offend the scots, lutherans, calvinists, or huguenots. people could hold what religious beliefs they would, even atheism, as long as they maintained an outward conformity. attendance at state church services on sunday mornings and evenings and holydays was enforced by a fine of 12d. imposed by the church wardens. babies were to be baptized before they were one month old or the parents would be punished. still, the new religion had to be protected. members of the house of commons, lawyers, schoolmasters were to take the oath of supremacy or be imprisoned and make a forfeiture; a second refusal brought death. when numerous anabaptists came from the continent to live in the port towns, the queen issued a proclamation ordering them to leave the realm because their pernicious opinions could corrupt the church. the new church still accepted the theory of the devil causing storms, but opposed ringing the holy church bells to attempt to drive him away. the sins of people were also thought to cause storms, and also plagues. in 1562, the church of england wrote down its christian protestant beliefs in thirty-nine articles of religion, which specifically excluded certain catholic beliefs. they were incorporated into statute in 1571 establishing them as the tenets of the official religion of england. the first eighteen endorsed the ideas of one god, christ as the son of god who was sacrificed for all the sins of men, the resurrection of christ from the dead and ascension into heaven, the holy ghost proceeding from the father and the son, the books of the bible, the original sin of adam and his offspring, justification of man by faith in christ rather than by good works, goods works as the inspired fruit and proof of faith in christ, christ in the flesh as like man except for the absence of sin, the chance for sinners who have been baptised to be forgiven if they truly repent and amend their lives, the predestination of some to be brought by christ to eternal salvation and their minds to be drawn up to high and heavenly things, and salvation only by the name of christ and not by a sect. other tenets described the proper functions of the church, distinguishing them from roman catholic practice. specifically, the church was not to expound one place of scripture so that it was inconsistent with another place of scripture. because man can err, the church was not to ordain or enforce anything to be believed for necessity of salvation. explicitly renounced were the romish doctrine concerning purgatory, pardons, worshipping, adoration of images or relics, invocation of saints, and the use in church of any language, such as latin, not understood by the people. only the sacraments of baptism and the lord's supper were recognized. the lord's supper was to be a sign of the love that christians ought to have among themselves and a sacrament of redemption by christ's death. the wine in the cup of blessing as well as the bread of the lord's supper was to be taken by laypeople and to be a partaking of christ; there was no romish mass. excommunication was limited to those who openly denounced the church. anyone openly breaking the traditions or ceremonies of the church which were approved by common authority were to be rebuked. elizabeth told the bishops that she wished certain homilies to be read in church, which encouraged good works such as fasting, prayer, alms-giving, christian behavior, repentance, and which discouraged idolatry, gluttony, drunkenness, excess of apparel, idleness, rebellion, and wife-beating however provoked. she considered homilies more instructive and learned that ministers' sermons, which were often influenced by various gentlemen and were inconsistent with each other. consecration of bishops and ministers was regulated; and they were allowed to marry. the standard prayer was designated thus: "our father who art in heaven, hallowed be thy name. thy kingdom come. thy will be done, on earth as it is in heaven. give us this day our daily bread, and forgive us our offenses as we forgive those who have offended against us. and lead us not into temptation, but deliver us from evil. for thine is the kingdom, the power, and the glory forever and ever, amen." there was difficulty persuading educated and moral men to be church ministers, even though elizabeth expressed to the bishops her preference for ministers who were honest and wise instead of learned in religious matters. the bible was read at home and familiar to everyone. this led to the growth of the puritan movement. the puritans believed in the right of the individual christian to interpret the scriptures for himself by spiritual illumination. they opposed the mystical interpretation of the communion service. the puritans complained that the church exerted insufficient control over the morals of the congregation. their ideas of morality were very strict and even plays were thought to be immoral. the independent puritans were those protestants who had fled from mary's catholic reign to the continent, where they were persuaded to the ideas of john calvin of geneva. he stressed the old idea of predestination in the salvation of souls, which had in the past been accepted by nearly all english christian leaders, thinkers, and teachers, but not stressed. the act of conversion was a common experience among the early puritans. the concomitant hatred of past sins and love of god which was felt in thankfulness for mercy were proof of selection for salvation. the good works that followed were merely an obligation showing that one's faith was real, but not a way to salvation. but the puritans also accepted calvin's idea of independent church government. they therefore thought that ministers and lay elders of each parish should regulate religious affairs and that the bishops, who were "petty popes", should be reduced to an equality with the rest of the clergy, since they did not rule by divine right. the office of archbishop should be eliminated and the head of state should not necessarily be governor of the church. these ideas were widely disseminated in books and pamphlets. the puritans disrupted the established church's sunday services, tearing the surplice off the minister's back and the wafers and wine from the altar rail. the puritans arranged "lectures" on sunday afternoons and on weekdays. these were given gratuitously or funded by boroughs. they were strict about not working on the sabbath, which day they gave to spiritual exercises, meditations, and works of mercy. the only work allowed was preparing meals for themselves, caring for their animals, and milking the cows. they enforced a strict moral discipline on themselves. the puritan movement included william brewster, an assistant to a court official who was disciplined for delivering, upon pressure from the council, the queen's signed execution order for mary of scotland after the queen had told him to hold it until she directed otherwise. the puritans formed a party in the house of commons. the debased coinage was replaced by a recoinage of newly minted coins with a true silver weight. goldsmiths, who also worked silver, often acted as guardians of clients' wealth. they began to borrow at interest at one rate in order to lend out to traders at a higher rate. this began banking. patents were begun to encourage the new merchant lords to develop local manufactures or to expand import and export trade. patents were for a new manufacture or an improved older one and determined the wages of its trades. there was chartering of merchant companies and granting of exclusive rights to new industries as monopolies. some monopolies or licenses were patents or copyrights of inventors. others established trading companies for trade to certain foreign lands and supporting consular services. people holding monopolies were accountable to the government. there were monopolies on certain smoked fish, fish oil, seal oil, oil of blubber, vinegar, salt, currants, aniseed, juniper berry liquor, bottles, glasses, brushes, pots, bags, cloth, starch, steel, tin, iron, cards, horn, ox shinbones, ashes, leather pieces, earth coal, calamite stone, powder, saltpeter, and lead manufacturing by-products. for far-flung enterprises and those where special arrangements with foreign countries was required, there was sharing of stock of companies, usually by merchants of the same type of goods. in joint-stock companies each member took a certain number of shares and all the selling of the goods of each merchant was carried on by the officials of the company. the device of joint stock might take the form of a fully incorporated body or of a less formal and unincorporated syndicate. the greatest joint-stock company was east india company, chartered in 1600 to trade there in competition with the dutch east india company. it was given a fifteen year monopoly on trade east of the southern tip of africa. unlike the muscovy company, and merchants of the staple, individual members could not trade on their own account, but only through the corporate body on its voyages. each particular voyage was regulated and assisted by the crown and privy council, for instance when further subscriptions were needed, or when carpenters were needed to be pressed into service for fitting out ships, or to deal with an unsuccessful captain. its charter retained many of the aspects of the medieval trade guild: power to purchase lands, to sue and be sued, to make by-laws, and to punish offenders by fine or imprisonment. admission was by purchase of a share in a voyage, redemption, presentation, patrimony (adult sons of members), and apprenticeship. purchase of a share in a voyage was the most common method. a share for the first ship cost one hundred pounds. cash payments for less than the price of a share could be invested for ultimate redemption. occasionally presentation or a faculty "for the making of a freeman" was granted to some nobleman or powerful member. members' liability was limited to their individual subscriptions. each voyage had 1) a royal commission authorizing the company to undertake the expedition and vesting in its commanders powers for punishing offenses during the voyage, and quenching any mutiny, quarrels, or dissension that might arise; 2) a code of instructions from the company to the admiral and to commanders of ships setting forth in great detail the scope and objects of the voyage together with minute regulations for its conduct and trade; 3) authorization for coinage of money or export of specie (gold or silver); and 4) letters missive from the sovereign to foreign rulers at whose ports the ships were to trade. the first voyage brought back spices that were sold at auction in london for ten times their price in the indies and brought to shareholders a profit equivalent to 9 1/2% yearly for the ten years when the going interest rate was 8% a year. town government was often controlled by a few merchant wholesalers. the entire trade of a town might be controlled by its drapers or by a company of the merchant adventurers of london. the charter of the latter as of 1564 allowed a common seal, perpetual existence, liberty to purchase lands, and liberty to exercise their government in any part of the nation. it was controlled by a group of rich londoners, no more than 50, who owned the bulk of the cloth exported. there were policies of insurance given by groups of people for losses of ships and their goods. marine insurance was regulated. new companies were incorporated for many trades. they were associations of employers rather than the old guilds which were associations of actual workers. the ostensible reason was the supervision of the quality of the wares produced in that trade. (shoemakers, haberdashers, saddlers, and curriers exercised close supervision over these wares.) they paid heavily for their patents or charters. there was no sharp line between craftsman and shopkeeper or between shopkeeper and wholesale merchant. in london, an enterprising citizen could pass freely from one occupation to another. borrowing money for a new enterprise was common. industrial suburbs grew up around london and some towns became known as specialists in certain industries. the building crafts in the towns often joined together into one company, e.g. wrights, carpenters, slaters, and sawyers, or joiners, turners, carvers, bricklayers, tilers, wallers, plasterers, and paviors. these companies included small contractors, independent masters, and journeymen. the master craftsman often was a tradesman as well, who supplied timber, bricks, or lime for the building being constructed. the company of painters was chartered with a provision prohibiting painting by persons not apprenticed for seven years. the prosperous merchants began to form a capitalistic class as capitalism grew. competition for renting farm land, previously unknown, caused these rents to rise. the price of wheat rose to an average of 14s. per quarter, thereby encouraging tillage once more. there was steady inflation. with enclosure of agricultural land there could be more innovation and more efficiency, e.g. the time for sowing could be chosen. it was easier to prevent over-grazing and half-starved animals as a result. the complications of the open system with its endless quarrels and lawsuits were avoided. now noblemen talked about manure and drainage, rotation of crops, clover, and turnips instead of hunting, horses, and dogs. the breed of horses and cattle was improved. there were specializations such as the hunting horse and the coach horse. by royal proclamation of 1562, there were requirements for the keeping of certain horses. for instance, everyone with lands of at least 1,000 pounds had to keep six horses or geldings able for demi-lances [rider bearing a light lance] and ten horses or geldings for light horsemen [rode to battle, but fought on foot]. one with under 100 pounds but over 100 marks yearly had to keep one gelding for a light horseman. dogs had been bred into various types of hounds for hunting, water and land spaniels for falconry, and other dogs as house dogs or toy dogs. there were no longer any wild boar or wild cattle. the turkey joined the cocks, hens, geese, ducks, pigeons, and peacocks in the farmyard. manure and dressings were used to fertilize the soil. hay became a major crop because it could be grown on grazing lands and required little care. there are new and bigger industries such as glassware, iron, brasswares, alum and coppers, gunpowder, paper, coal, and sugar. the coal trade was given a monopoly. coal was used for fuel as well as wood, which was becoming scarce. iron smelters increasingly used coal instead of charcoal, which was limited. iron was used for firebacks, pots, and boilers. good quality steel was first produced in 1565 with the help of german craftsmen, and a slitting mill was opened in 1588. small metal goods, especially cutlery, was made, as well as nails, bolts, hinges, locks, ploughing and harrowing equipment, rakes, pitch forks, shovels, spades, and sickles. lead was used for windows and roofs. copper and brass were used to make pots and pans. pewter was used for plates, drinking vessels, and candlesticks. competition was the mainspring of trade and therefore of town life. the mode of travel of the gentry was riding horses, but most people traveled by walking. people carried passes for travel that certified they were of good conduct and not a vagrant or sturdy rogue. bands of roving vagabonds terrorized the countryside. after a land survey completed in 1579 there arose travel books with maps, itineraries, and mileage between towns in england and wales. also, the queen sent her official mail by four royal postal routes along high roads from london to various corners of the nation. horses are posted along the way for the mail-deliverer's use. however, private mail still goes by packman or common carrier. the nation's inland trade developed a lot. there were many more wayfaring traders operating from town inns. in 1564, the first canal was built with locks at exeter. more locks and canals facilitated river travel. at london bridge, waterwheels and pumps are installed. new sea navigation techniques improved voyages. seamen learned to fix their positions, using an astrolabe or quadrant to take the altitude of the sun and stars and to reckon by the north star. they used a nocturnal, read by touch, to help keep time at night by taking the altitude of the stars. they calculated tides. to measure distances, they invented the traverse board, which was bored with holes upon lines, showing the points of the compass; by means of pegs, the steersman kept an account of the course steered. a log tied to a rope with knots at equal intervals was used to measure speed. there were compasses with a bearing dial on a circular plate with degrees up to 360 noted thereon. seamen had access to compilations of arab mathematicians and astronomers and to navigational manuals and technical works on the science of navigation and the instruments necessary for precision sailing. for merchants there were maps, books about maps, cosmographical surveys, and books on the newly discovered lands. in 1569 john mercator produced a map taking into account the converging of the meridians towards the pole. on this chart, a straight line course would correspond to a mariner's actual course through the water on the earth's sphere, instead of having the inaccuracies of a straight line on a map which suggested that the world was flat. it was in use by 1600. in 1600 william gilbert, son of a gentleman, and physician to queen elizabeth, wrote a book on the magnetic properties of the earth, which founded the science of electricity. he cultivated the method of experiment and of inductive reasoning from observation and insisted on the need for a search for knowledge not in books but in things themselves. he showed that the earth was a great magnet with a north pole and a south pole, by comparing it to lodestones made into spheres in which a north and south pole could be found by intersecting lines of magnetism indicated by a needle on the stone. the vertical dip of the needle was explained by the magnetic attraction of the north pole. he showed how a lodestone's declination could be used to determine latitude at sea. he showed how the charge of a body could be retained for a period of time by covering the body with some non-conducting substance, such as silk. he distinguished magnetism from electricity, giving the latter its name. he discovered that atmospheric conditions affected the production of electricity, dryness decreasing it, and moisture increasing it. he expounded the idea of copernicus that the earth revolves around the sun in a solar system. however, the prevailing belief was still that the earth was at the center of the universe. christmas was an especially festive time of good fellowship. people greeted each other with "good cheer", "god be with you", or "against the new year". carols were often sung and musicians played many tunes. there was dancing and gambling. there were big dinners with many kinds of meat and drink. a hearty fire heated all the house. many alms were given to beggars. parliament enacted laws and voted taxes. the queen, house of lords, and house of commons cooperated together. there was relatively little dissension or debating. bills were read, voted on, discussed, and passed with the lords, peers, bishops, and justices sitting in their places according to their degree. the justices sat on the wool sacks. a bar separated this area from the rest of the room, where the members of the commons stood. there were many bills concerning personal, local, or sectional interests, but priority consideration was given to public measures. the house of lords still had 55 members. the queen appointed and paid the speaker, clerk, and sergeant at arms of the commons. the knights in the commons were almost invariably from the county's leading families and chosen by consensus of knights with free land of at least 40s. in the county court. in the towns, the electors might be the town corporation, holders of certain properties, all the freemen, all the rate-payers, or all the male inhabitants. disputed elections were not usually concerned with political issues, but were rivalries for power. the commons gradually won for its members freedom from arrest without its permission and the right of punishing and expelling members for crimes committed. tax on land remained at 10% of its estimated yearly income. the queen deferred to the church convocation to define christian faith and religion, thus separating church and state functions. the treasury sought to keep a balanced budget by selling royal land and keeping crown expenditures down. the crown carried a slight debt incurred before the queen's accession. theft and robbery were so usual that there were names for various techniques used. a ruffler went with a weapon to seek service, saying that he was a servitor in the wars, but his chief "trade" was to rob poor wayfaring men and market women. a prigman went with a stick in his hand like an idle person, but stole clothes off hedges. a whipjack begged like a mariner, but with a counterfeit license (called a "gibe"); he mostly robbed booths in fairs or pilfered ware from stalls, which was called "heaving of the booth". a frater had a counterfeit license to beg for some hospital, but preyed upon poor women coming and going to market. a quire bird was a person recently let out of prison, and was commonly a horse stealer. an upright man carried a truncheon of a staff and called others to account to him and give him a share or "snap" of all that they had gained in one month, and he often beat them. he took the chief place at any market walk and other assemblies. workers at inns often teamed up with robbers, telling them of wares or money travelers were carrying so the robber could profitably rob them after they left the inn. violence was still a part of the texture of everyday life. private armories and armed gangs were not uncommon. agricultural laborers kept sword and bow in a corner of their fields in the first part of elizabeth's reign. non-political brutal crime and homicides were commonplace. there were frequent local riots and disturbances, in the country and in the towns. occasionally there were large-scale rebellions. but the rebellion of the earl of essex in 1601 had no aftermath in violence. in 1590, the queen issued a proclamation enforcing curfew for london apprentices, who had been misruly. the queen issued proclamations to certain counties to place vagrant soldiers or vagrants under martial law because of numerous robberies. she ordered the deportation of vagrant irishmen in 1594. after exhausting every other alternative, the queen reluctantly agreed with her privy council on the execution in 1572 of mary, queen of scots, who had been involved in a plot to assassinate her and claim the throne of england. her council had persuaded her that it was impossible for her to live in safety otherwise. francis drake sailed around the world from 1577 to 1580. walter ralegh made an expedition to north america in 1584 with the queen's authority to "discover barbarous countries, not actually possessed of any christian prince and inhabited by christian people, to occupy and enjoy". he found and named the land of virginia in honor of the queen, who was a virgin, and started a colony on roanoke island there. drake and ralegh plundered spanish ships for cargo such as american gold and silver, much of which was used to pay for the war with spain and much going to investors. seamen on navy and pirate ships raided captured vessels to seize personal possessions of the spanish on board. the experience fighting spanish ships led to improvements in ship design; building ships was no longer merely by copying another ship or a small model. when the seas were unsafe because of the war with spain, the export of english wool was disturbed and later replaced by trading from world ports. mnay london merchants grew rich from using their ships for pirating. in 1588, a spanish armada came to invade england, return it to catholicism, and stop the pirating of spanish ships. in that battle off england's shores, drake and other experienced sea fighters led two hundred english ships, of which about 20 were built to sink other ships rather than to board and capture them. these new english ships were longer and narrower and did away with the towering superstructures at bow and stern. this made them more maneuverable and easier to sail. also, the english guns were lighter, more numerous, and outranged the spanish guns. so the smaller english ships were able to get close enough to fire broadside after broadside against the big spanish troop-transport galleons, without being fired upon. the english sent fire ships into the spanish fleet when it was anchored, causing it's ships to disperse in a panic. then the direction of the wind forced the spanish galleons northward, where most of them were destroyed by storms. the english seamen had been arbitrarily pressed into this service. a royal proclamation of 1601 offered a reward of 100 pounds for information on libels against the queen. there had been mounting demonstrations against her monopolies, which mostly affected household items. there had been abuses of monopolies, such as the steel monopoly had been sold for 12 pounds 10s., but steel was then sold at 5d. per pound instead of the former 2 1/2 d. per pound. further the steel was mixed and of a lesser quality. this so damaged the knife and sword industry that about 2000 workers lost their jobs from it and became beggars. monopoly was a severe burden to the middle and poorer classes. also, the power of patent holders to arrest and imprison persons charged with infringing upon their rights was extended to any disliked person. when the house of commons protested against monopolies in 1601, elizabeth reduced them. she addressed her council and the commons saying that "mr. speaker, you give me thanks, but i doubt me that i have more cause to thank you all than you me; and i charge you to thank them of the lower house from me. for had i not received a knowledge from you, i might have fallen into the lapse of an error only for lack of true information. since i was queen yet did i never put my pen to any grant but that upon pretext and semblance made unto me, it was both good and beneficial to the subject in general, though a private profit to some of my ancient servants who had deserved well. but the contrary being found by experience, i am exceedingly beholding to such subjects as would move the same at the first. and i am not so simple to suppose but that there be some of the lower house whom these grievances never touched; and for them i think they speak out of zeal to their countries and not out of spleen or malevolent affection, as being parties grieved. and i take it exceedingly gratefully from them, because it gives us to know that no respects or interests had moved them other than the minds they bear to suffer no diminution of our honor and our subjects' love unto us, the zeal of which affection tending to ease my people and knit their hearts unto me, i embrace with a princely care. for above all earthly treasures i esteem my people's love, more than which i desire not to merit. that my grants should be grievous unto my people and oppressions to be privileged under color of our patents, our kingly dignity shall not suffer it. yea, when i heard it i could give no rest unto my thoughts until i had reformed it. shall they (think you) escape unpunished that have thus oppressed you, and i have been respectless of their duty and regardless of our honor? no, no, mr. speaker, i assure you, were it not more for conscience' sake than for any glory or increase of love that i desire, these errors, troubles, vexations, and oppressions done by these varlets and low persons (not worthy the name of subjects) should not escape without condign punishment. but i perceive they dealt with me like physicians who, ministering a drug, make it more acceptable by giving it a good aromatical savor; or when they give pills, do gild them all over. i have ever used to set the last judgment day before my eyes and so to rule as i shall be judged, to answer before a higher judge. to whose judgment seat i do appeal that never thought was cherished in my heart that tended not unto my people's good. and now if my kingly bounties have been abused and my grants turned to the hurts of my people, contrary to my will and meaning, or if any in authority under me have neglected or perverted what i have committed to them, i hope good will not lay their culps [sins] and offenses to my charge. who, though there were danger in repealing our grants, yet what danger would i not rather incur for your good than i would suffer them still to continue? i know the title of a king is a glorious title, but assure yourself that the shining glory of princely authority hath not so dazzled the eyes of our understanding but that we well know and remember that we also are to yield an account of our actions before the great judge. to be a king and wear a crown is a thing more glorious to them that see it than it is pleasant to them that bear it. for myself, i was never so much enticed with the glorious name of a king or royal authority of a queen as delighted that god hath made me his instrument to maintain his truth and glory, and to defend this kingdom from peril, dishonor, tyranny, and oppression. there will never queen sit in my seat with more zeal to my country, care to my subjects, and that will sooner with willingness venture her life for your good and safety, than myself. for it is not my desire to live or reign longer than my life and reign shall be for your good. and though you have had and may have many princes more mighty and wise sitting in this seat, yet you never had or shall have any that will be more careful and loving." about 1584, richard hakluyt, a bristol clergyman, wrote "a particular discourse concerning western discoveries". this was to become the classic statement of the case for english colonization. it held out hope that the english would find needed timber for masts, pitch, tar, and ashes for soap. in rome in 1600, giordano bruno, an italian monk and priest, was burned alive at the stake by a court of the inquisition for not recanting, although tortured, his heretical and blasphemous philosophy. he had opined that christianity was irrational and had no scientific basis. he declared that christ was only a skillful magician, that the bible could not be taken literally, that god and nature were not separate as taught by genesis, that the catholic church encouraged ignorance from the instinct of self-preservation, and that the earth and planets revolved around the sun, as did other planets around the "fixed" stars and other suns. the jesuits, a new catholic order brimming with zeal, sent missionaries to england to secretly convert people to catholicism. the practice of catholicism had gone underground in england, and some catholic householders maintained catholic priests in hidden places in their homes. the law although estate tails (estates descendible only to the heirs of the body of the original feofee) by law could not be sold or given away, this was circumvented by the fraudulent use of a "straw man". in collaboration with the possessor of the property, this straw man sued the possessor asserting that the property had been wrongfully taken from the straw man. the possessor pleaded that the crier of the court who had warranted the title should be called to defend the action. he failed to appear until after judgment had been given to the straw man. then the straw man conveyed it to the possessor or his nominee in fee simple. no one shall make false linen by stretching it and adding little pieces of wood, which is so weak that it comes apart after five washings. timber shall not be felled to make logs for fires for the making of iron. no one may take small fish to feed to dogs and pigs. only nets with mesh leaving three inches spaces may be used to catch fish. no attainder shall result in the forfeiture of dower by the offender's wife nor disinheritance of his heirs. the following statute of artificers regulated labor for the next two centuries: no master or mistress may employ a servant for a term less than one year in the crafts of clothiers, woolen cloth weavers, tuckers, fullers, clothworkers, shearmen, dyers, hosiers, tailors, shoemakers, glovemakers, tanners, pewterers, bakers, brewers, cutlers, smith, farriers, curriers, saddlers, spurriers, turners, cappers, hatmakers, feltmakers, bow-makers, arrow-makers, arrowhead-makers, butchers, cooks, or millers, so that agriculture will be advanced and idleness diminished. also, every craftsman unmarried or under age 30 who is not working must accept employment by any person needing the craft work. also, any common person between 12 and 60 who is not working must accept employment in agriculture. and, unmarried women between 12 and 40 may be required by town officials to work by the year, the week, or day for wages they determine. all artificers and laborers hired by the day or week shall work from 5 am to 7 pm. all artificers must labor at agriculture at haytime and harvest to avoid the loss of grain or hay. every householder who raises crops may receive as an apprentice a child between 10 and 18 to serve in agriculture until he is age 21. a householder in a town may receive a child as an apprentice for 7 years, but merchants may only take as apprentices children of parents with 40s. freehold. (this was designed to inhibit migration to the towns. it excluded three fourths of the rural population.) no one may be a craftsman until he has served seven years as an apprentice. these artificers may have children as apprentices: smith, wheelmaker, ploughmaker, millmaker, miller, carpenter, rough mason, plasterer, a timber sawer, an ore burner, a lime burner, brickmaker, bricklayer, tilemaker, tiler, layer of slate roofs, layer of wood shingle roofs, layer of straw roofs, cooper, earthen potter, linen weaver, housewife who weaves wool for sale or for household use. fish, but no meat, may be eaten on wednesdays so that there will be more fishermen and mariners and repair of ports. (this was done because fishing had declined since the dissolution of the monasteries. eating fish instead of meat in lent in the springtime remained a tradition.) for repairing of highways, the supervisors may take the rubbish or smallest stones of any quarry along the road in their precinct. embezzlement or theft by a servant of his master's goods of 40s. or more is a felony. no one shall forge a deed of land, charter, sealed writing, court roll or will. no one shall libel or slander so as to cause a rebellion. cut-purses and pick-purses shall not have benefit of clergy. a debtor may not engage in a fraudulent collusion to sell his land and goods in order to avoid his creditors. a person robbing a house of 5s. by day when no one is there shall not have benefit of clergy, because too many poor persons who cannot hire a servant to look after their house when they go to work have been robbed. when the hue and cry is raised for a robbery in a hundred, and other hundreds have been negligent, faulty, or defective in pursuit of the robber, then they must pay half the damages to the person robbed, while the hundred in which the robbery occurred pays the other half. robbers shall be pursued by horse and by foot. the price of barrels shall be set by mayors of the towns where they are sold. no man under the degree of knight may wear a hat or cap of velvet. caps may not be made of felt, but only knit wool. only hats may be made of felt. this is to assist the craft of making wool caps. every person over 6 years of age shall wear on sundays a wool knitted cap made by the cappers, except for maidens, ladies, gentlewomen, noble persons, and every lord, knight, and gentlemen with 2,667s. of land, since the practice of not wearing caps has damaged the capping industry. this employed cappers and poor people they had employed and the decrepit and lame as carders, spinners, knitters, parters, forsers, thickers, dressers, dyers, battelers, shearers, pressers, edgers, liners, and bandmakers. rugs shall weigh 44 pounds at least and be 35 yards at least in length and at most 3/4 yard wide. the incorporated company of ship masters may erect beacons and marks on the seashores and hills above, because certain steeples and other marks used for navigation have fallen down and ships therefore have been lost in the sea. there shall be one sheriff per county, because now there are enough able men to supply one per county. trials of noblemen for treason shall be by their peers. a native or denizen merchant in wholesale or retail goods who leaves the nation to defraud his creditors shall be declared a bankrupt. the chancellor may conduct an investigation to ascertain his land, house, and goods, no matter who may hold them. they shall be appraised and sold to satisfy his debts. loan contracts for money lent may not be for more than 200s. for each 2000s. yearly (i.e. 10% interest). all loans of money or forbearing of money in sales of goods not meeting this requirement shall be punishable by forfeit of the interest only. no cattle may be put in any enclosed woods that have been growing less than five years. at the end of five years growth, calves may be put in. at the end of six years growth, cattle may be put in. the mother and reputed father of any bastard who has been left to be kept at the parish where born must pay weekly for the upkeep and relief of such child, so that the true aged and disabled of the parish get their relief and to punish the lewd life. no master at a university may lease any land unless 1/3 of it is retained for raising crops to supply the colleges and halls for food for their scholars. persons with 100s. in goods or 40s. in lands shall find two able men in their parish community to repair the highways yearly. landowners of oxford shall be taxed for the repair of the highway and bridge there. woods around london shall not be felled to be converted to coals for iron-works because london needs the wood to make buildings and for fireplaces. every melter and maker of wax from honeycombs shall put his mark on every piece of his wax to be sold. wrought wax such as in lights, staff-torches, red wax or sealing wax, book candles, or searing candles shall bear its maker's mark. all barrels of honey shall bear the mark of the honeymaker. wool cloth, cotton cloth, flannel cloth, hose-yarn, hats, and caps shall be dyed black only with dye from the woad plant and not with any false black dye. no one shall take or kill any pheasants with nets or devices at nighttime because such have become scarce. lands, tenements, goods and chattels of accountants teller, or receiver who are in debt may be obtained by court order to satisfy the debt by garnishing the heir of the debtor after the heir has reached 21 and for the 8 years next ensuing. fraudulent and secret conveyances made to retain the use of one's land when one sells the land to a bona fide purchaser for value in fee simple, fee tail, for life, for lives, or for years are void. no new iron mills or furnaces for making or working of any iron or iron metal shall be established in the country around london and the owners of carriages of coals, mines and iron which have impaired or destroyed the highways shall also carry coal ashes, gravel, or stone to repair these highways or else make a payment of 2s.6d. for each cart load not carried. no one shall bribe an elector to vote for a certain person for fellow, scholar, or officer of a college, school, or hall or hospital so that the fittest persons will be elected, though lacking in money or friends, and learning will therefore be advanced. cottage and dwelling houses for workmen or laborers in mineral works, coal mines, or quarries of stone or slate for the making of brick, tile, lime, or coals shall be built only within a mile from such works. dwelling houses beyond this must be supported by four acres of land to be continually occupied and manured as long as the dwelling house is inhabited or else forfeit 40s. per month to the queen. cottages and dwelling houses for sailors or laborers working on ships for the sea shall be built only within a mile of the sea. a cottage may be built in a forest or park for a game keeper of the deer. a cottage may be built for a herdman or shepherd for the keeping of cattle or sheep of the town. a cottage may be built for a poor, lame, sick, aged, or disabled person on waste or common land. more families than one may not be placed in one cottage or dwelling house. (this is a zoning law.) a vagabond or mighty strong beggar [able to work] shall be whipped. any person with land in fee-simple may establish a hospital, abiding place, or house of correction to have continuance forever as a corporation for the sustenance and relief of the maimed, poor, or disabled people as to set the poor to work. the net income shall not exceed 40,000s. yearly. troops of vagabonds with weapons in the highways who pretend to be soldiers or mariners have committed robberies and murders. so all vagabonds shall settle down in some service or labor or trade. pontage [toll for upkeep and repair of bridges] shall be taken at certain bridges: carts 2d., horse and pack 1d., a flock of sheep 2d. crown officials such as treasurers, receivers, accountants, and revenue collectors shall not embezzle crown funds and shall be personally liable for arrears. persons forcibly taking others across county lines to hold them for ransom and those taking or giving blackmail money and those who burn barns or stacks of grain shall be declared felons and shall suffer death, without any benefit of clergy or sanctuary. no bishop may lease land for more than twenty-one years or longer than the lives of three designated persons. no bishop may alienate any possession of their sees to the crown. such are void. stewards of leet and baron courts may no longer receive, in their own names, profits of the court over 12d. since they have vexed subjects with grievous fines and amercements so that profits of justice have grown much. incorrigible and dangerous rogues shall be branded with an "r" mark on the left shoulder and be put to labor, because banishment did not work as they came back undetected. if one is caught again begging, he shall be deemed a felon. any innkeeper, victualer, or alehouse keeper who allows drinking by persons other than those invited by a traveler who accompanies him during his necessary abode there or other than laborers and handicraftsmen in towns upon the usual working days for one hour at dinner time to take their diet in an alehouse or other than laborers and workmen following their work to any given town to sojourn, lodge, or victual in any inn, alehouse or victualing house shall forfeit 10s. for each offense. this is because the use of inns, alehouses, and victualing houses was intended for relief and lodgings of traveling people and people not able to provide their own victuals, but not for entertainment and harboring of lewd and idle people who become drunk. if a person marries a second time while the first spouse is still living, it shall be a felony and thus punishable by death. watermen transporting people on the thames river shall have served as apprentice to a waterman for five years or have been the son of a waterman. this is to prevent the loss of lives and goods by inexperienced watermen. no one may make any hat unless he has served as apprentice for at least seven years. this is to prevent false and deceitful hatmaking by unskillful persons. spices and potions, including pepper, cloves, mace, nutmeg, cinnamon, ginger, almonds, and dates, which have usually been garbled [cleaned or sorted by sifting] shall be garbled, cleaned, sorted, and sealed by the garbler before sale. this is to prevent mingled, corrupt, and unclean spices and potions from being sold. plasterers shall cease painting because it has intruded upon the livelihoods of painters who have been apprenticed as such. pawn brokers accepting stolen goods shall forfeit twice their value to the owner from whom stolen. no butcher may cut any hide or any ox, bull, steer, or cow so that it is impaired or may kill any calf under five weeks old. no butcher may be a tanner. no one may be a tanner unless that person has apprenticed as such for seven years, or is the son or wife of a tanner who has tanned for four years, or is a son or daughter of a tanner who inherits his tanhouse. tanners may not be shoemakers, curriers, butchers, or leatherworkers. only tanners may buy raw hides. only leatherworkers may buy leather. only sufficiently strong and substantial leather may be used for sole-leather. curriers may not be tanners. curriers may not refuse to curry leather. london searchers shall inspect leather, seal and mark that which is sufficient, and seize any that is insufficiently tanned, curried, wrought, or used. fishermen and their guides may continue to use the coastland for their fishing activities despite the trespass to landowners. since sails for ships in recent years have been made in the realm instead of imported, none shall make such cloth unless he has been apprenticed in such or brought up in the trade for seven years. this is to stop the badness of such cloth. any person killing any pheasant, partridge, dove, pigeon, duck or the like with any gun, crossbow, stonebow, or longbow, or with dogs and nets or snares, or taking the eggs of such from their nests, or tracing or taking hares in the snow shall be imprisoned for three months unless he pays 20s. per head or, after one month's imprisonment, have two sureties bound for 400s. this is because the past penalty of payment hasn't deterred offenders, who frequently cannot pay. persons affected by the plague may not leave their houses or be deemed felons and suffer death. this is to avoid further infection. the towns may tax their inhabitants for the relief of infected persons. tonnage [tax per ton] and poundage [tax per pound] on goods exported and imported shall be taken to provide safeguard of the seas for such goods. all persons must go to the established church on sundays and holy days. the penalty was at first forfeiture 12d. along with church punishment, and later, 20 pounds per month and being bound by two sureties for 200 pounds for good behavior, and if the 20 pounds is not paid, then forfeiture of all goods to be applied to the amount due and two-thirds of one's land. these laws were directed against catholicism, but were laxly enforced as long as worship was not open and no one wore priestly clothes: the writing, preaching, or maintaining of any foreign spiritual jurisdiction shall be punished by forfeiture of goods or, if the goods are not worth 20 pounds, one year imprisonment, for the first offense; forfeiture of goods and lands and the king's protection, for the second offense; and the penalty for high treason for the third offense. any person leading others to the romish [catholic] religion is guilty of high treason. the penalty for saying mass is [2,667s.] 200 marks and one year's imprisonment. the penalty for hearing mass is [1,333s.] 100 marks and one year's imprisonment. if one is suspected of being a jesuit or priest giving mass, one must answer questions on examination or be imprisoned. papists [those who in conscience refused to take the oath of supremacy of the crown over the church] must stay in their place of abode and not go five miles from it, unless licensed to do so for business, or else forfeit one's goods and profits of land for life. if a copyholder, land is forfeited to one's lord. but if the goods are not worth 800s. or the land is not worth at least 267s., the realm must be abjured. otherwise, the papist is declared a felon without benefit of clergy. if a child is sent to a foreign land for catholic education, he cannot inherit lands or goods or money, unless he conforms to the established church on his return. there is also a 100 pound penalty for the persons who sent him. devising or speaking seditious rumors are penalized by the pillory and loss of both ears for the first offense; and 200 pounds and six months imprisonment for the second offense. slandering the queen is penalized by the pillory and loss of one ear, or by [1,333s.] 100 marks and three months imprisonment, at the choice of the offender. the second offense is a felony. printing, writing, or publishing seditious books is a felony without benefit of clergy. wishing the queen dead, prophesying when she would die, or who would succeed her to the crown is a felony without benefit of clergy. attainders for these felonies shall not work corruption of the blood [heirs may inherit the property of the felon]. because the publication of many books and pamphlets against the government, especially the church, had led to discontents with the established church and to the spreading of sects and schisms, the star chamber in 1585 held that the printing trade was to be confined to london, except for one press at oxford and one at cambridge. no book or pamphlet could be printed unless the text was first seen, examined, and allowed by the archbishop of canterbury or the bishop of london. book publishers in violation were to be imprisoned for six months and banned from printing; their equipment was to be destroyed. wardens were authorized to search wherever "they shall have reasonable cause of suspicion", and to seize all such books and pamphlets printed. but printers continued to print unlicensed material. judicial procedure jurors shall be selected from those people who have at least 80s. annual income instead of 40s. because sheriffs have been taking bribes by the most able and sufficient freeholders to be spared at home and the poorer and simpler people, who are least able to discern the causes in question, and most unable to bear the charges of appearance and attendance in such cases have been the jurors. also there had been inflation. defendants sued or informed against upon penal statutes may appear by attorney so that they may avoid the inconvenience of traveling a long distance to attend and put to bail. no only sheriffs, but their employees who impanel juries or execute process in the courts shall take an oath of office. a hundred shall answer for any robbery therein only if there has been negligence or fault in pursuit of the robber after a hue and cry is made because the past law has been too harsh and required payment for offenses from people unable to pay who have done everything reasonable to catch the robber. the star chamber became the central criminal court after 1560, and punished perjury, corruption, malfeasance throughout the legal system such as jury corruption and judicial bribery, rioting, slander, and libel. its procedure was inquisitory rather than accusative. it heard witnesses in camera [not in the presence of the suspected]. trial was by systematic interrogation of the suspected on oath, with torture if necessary in treason cases. silence could be taken for a confession of guilt. there was no jury. queen elizabeth chose not to sit on this court. punishments were imprisonment, fines, the pillory, ear cropping or tacking, whipping, stigmata on the face, but not death or any dismemberment except for the ears. (the gentry was exempt from whipping.) the ecclesiastical high commission [later called the court of high commission or high court of ecclesiastical causes] took over criminal cases formerly heard by the church courts. it also heard matters of domestic morals. it was led by bishops and privy council members who in 1559 were authorized by a statute of parliament to keep order within the church, discipline the clergy, and punish such lay offenses as were included in the ecclesiastical jurisdiction. obstinate heresy is still a capital crime, but practically the bishops have little power of forcing heretics to stand trial. if anyone maintains papal authority, he forfeits his goods; on a third conviction, he is a traitor. the clergyman who adopts a prayer book other that the prescribed one commits a crime. excommunication has imprisonment behind it. elizabeth gave this court the power to fine and imprison, which the former church courts had not had. at first, the chief work was depriving papists of their benefices. suits on titles to land were restricted to the common law courts and no longer to be heard in the star chamber, chancery court, or in the court of requests (equity for poor people). the queen's privy council investigated sedition and treason, security of the regime, major economic offenses, international problems, civil commotion, officials abusing their positions, and persons perverting the course of justice. it frequently issued orders to justices of the peace, for instance to investigate riots and crimes, to enforce the statutes against vagrancy and illegal games, to regulate alehouses, to ensure that butchers, innkeepers, and victualers did not sell meat on fish days, and to gather information needed from the counties. the justices of the peace decided misdemeanors such as abduction of heiresses, illegal entry, petty thievery, damage to crops, fence-breaking, brawling, personal feuds, drunken pranks, swearing, profanation of the sabbath, alehouse nuisances, drunkenness, perjury, and malfeasance by officials. they held petty and quarter sessions. the justices of the peace had administrative duties in control of vagrancy, upkeep of roads and bridges, and arbitration of lawsuits referred to them by courts. they listed the poor in each parish community, assessed rates for their maintenance, and appointed overseers to administer the welfare system, deploying surplus funds to provide houses of correction for vagrants. raw materials such as wool, flax, hemp, and iron were bought upon which the able-bodied unemployed could be set to work at the parochial level. they determined wages in their districts, with no statutory ceiling on them, for all laborers, weavers, spinsters, workmen and workwomen working by the day, week, month, or year, or taking any work at any person's hand. there were about 50 justices of the peace per county. all were unpaid. they performed these duties for the next 200 years. the justices of assize rode on circuit twice a year to enforce the criminal law and reported their assessment of the work of the justices of the peace back to the privy council. the duty to hear and determine felonies was taken from justices of the peace by 1590. the justices of assize did this work. accused people could wait for years in gaol before their case was heard. felonies included breach of prison, hunting by night with painted faces, taking horses to scotland, stealing of hawks' eggs, stealing cattle, highway robbery, robbing on the sea, robbing houses, letting out of ponds, cutting of purses, deer-stealing at night, conjuring and witchcraft, diminution of coin, counterfeiting of coins, and impenitent roguery and idleness. the penalty was death. many people were hanged for the felony of theft over 12d. some bold men accused of felony refused to plead so that they could not be tried and found guilty. they died of heavy weights being placed on their bodies. but then their property could go to their heirs. the court of queen's bench and exchequer indirectly expanded their jurisdiction to include suits between citizens, formerly heard only the court of common pleas or chancery. chancery interrogated defendants. chancery often issued injunctions against suits in the common law courts. trial by combat was very rare. benefit of clergy may not be had for stabbing a person who has no weapon drawn, if he dies within six months. pleadings had to be in writing and oral testimony was given by sworn witnesses. case decisions are in books compiled by various reporters who sit in on court hearings rather than in year books. in the common law, trespass has given rise to the offshoot branch of "ejectment", which becomes the common means of recovering possession of land, no matter what kind of title the claimant asserts. trespass on the case has given rise to the offshoot branch of "trover" [finding another's goods and converting them to one's own use]. the use of the action of trover gradually supplants the action of detinue, which involves compurgation. in the common law courts, the action of assumpsit for enforcing certain promises is used more than the action of debt in those cases where there is a debt based on an agreement. the essential nature of "consideration" in contract is evolving from the procedural requirements for the action of assumpsit. consideration may consist in mutual promises, a precedent debt, or a detriment incurred by one who has simultaneously received a promise related to the detrimental action. consideration must be something, an act, or forbearance of an act that is of value. for instance, forbearance to sue a worthless claim is not consideration. the abstract concept of contract as an agreement between two parties which is supported by consideration is developing as the number of various agreements that are court enforceable expands. for instance the word "consideration" is used in hayward's case in 1595 in the court of wards on the construction of a deed. sir rowland hayward was seised in fee of the doddington manor and other lands and tenements, whereof part was in demesne, part in lease for years with rents reserved, and part in copyhold, by indenture, "in consideration of a certain sum of money" paid to him by richard warren and others, to whom he demised, granted, bargained and sold the said manor, lands and tenements, and the reversions and remainders of them, with all the rents reserved upon any demise, to have and to hold to them and their assigns, presently after the decease of sir rowland, for the term of 17 years. it was held that the grantees could elect to take by bargain and sale or by demise, each of which had different consequences. in another case, a delivered 400s. to b to the use of c, a woman, to be delivered to her on the day of her marriage. before this day, a countermanded it, and called home the money. it was held in the chancery court that c could not recover because "there is no consideration why she should have it". in a case concerning a deed, a sold land to b for 400s., with confidence, that it would be to the use of a. this bargain "hath a consideration in itself ... and such a consideration is an indenture of bargain and sale". it was held that the transaction was not examinable except for fraud and that a was therefore estopped. a court reporter at the king's bench formulated two principles on consideration of the case of wilkes against leuson as: "the heir is estopped from falsifying the consideration acknowledged in the deed of feoffment of his ancestor. where a tenant in capite made a feoffment without consideration, but falsely alleged one in the deed on an office finding his dying seised, the master of the wards cannot remove the feoffees on examining into the consideration, and retain the land until &c. and though the heir tended, still if he do not prosecute his livery, the queen must admit the feoffees to their traverse, and to have the farm, &c." the court reporter summarized this case as follows: wilkes, who was merchant of the staple, who died in february last past, made a feoffment in the august before his death to one leuson, a knight, and his brother, and another, of the manor of hodnel in the county of warwick; and the deed, (seen) for seven thousand pounds [140,000s.] to him paid by the feoffees, of which sum he made acquittance in the same deed (although in fact and in truth not a half-penny was paid), gave, granted, and confirmed &c "habendum eir et hoeredibus suis in perpetuum, ad proprium opus et usum ipsorum a. b. et c. in perpetuum," and not "hoeredum suorum," together with a clause of warranty to them, their heirs and assigns, in forma proedicta: and notwithstanding this feoffment he occupied the land with sheep, and took other profits during his life; and afterwards his death was found on a diem clausit extremum by office, that he died seised of the said manor in fee, and one i. wilkes his brother of full age found his next heir, and a tenure in capite found, and now within the three months the said feoffees sued in the court of wards to be admitted to their traverse, and also to have the manor in farm until &c. and although the said i. wilkes the brother had tendered a livery, yet he had not hitherto prosecuted it, but for cause had discontinued. and whether now the master of the wards at his discretion could remove the feoffees by injunction out of possession upon examination of the said consideration of the said feoffment which was false, and none such in truth, and retain it in the hands of the queen donec et quousque &c. was a great question. and by the opinion of the learned counsel of that court he cannot do it, but the queen is bound in justice to give livery to him who is found heir by the office, or if he will not proceed with that, to grant to the tenderers the traverse, and to have the farm, &c. the request above mentioned. and this by the statutes ... and note, that no averment can be allowed to the heir, that the said consideration was false against the deed and acknowledgment of his ancestor, for that would be to admit an inconvenience. and note the limitation of the use above, for divers doubted whether the feoffees shall have a fee-simple in the sue, because the use is not expressed, except only "to themselves (by their names) for ever;" but if those words had been wanting, it would have been clear enough that the consideration of seven thousand pounds had been sufficient, &c. for the law intends a sufficient consideration by reason of the said sum; but when the use is expressed otherwise by the party himself, it is otherwise. and also the warranty in the deed was "to them, their heirs, and assigns, in form aforesaid," which is a declaration of the intent of wilkes, that the feoffees shall not have the use in fee simple; and it may be that the use, during their three lives, is worth seven thousand pounds, and more &c. and suppose that the feoffment had been "to have to them and their heirs to the proper use and behoof of them the feoffees for the term of their lives for ever for seven thousand pounds," would they have any other estate than for the term of their lives in the use? i believe not; and so in the other case. a last example of a case concerning consideration is that of assaby and others against lady anne manners and others. the court reporter characterized the principle of the case as: "a. in consideration of his daughter's marriage covenants to stand seised to his own use for life, and that at his death she and her husband shall have the land in tail, and that all persons should stand seised to those uses, and also for further assurance. after the marriage he bargains and sell with fine and recovery to one with full notice of the covenants and use; this is of no avail, but on the death of a. the daughter and her husband may enter." the court reporter summarized this case as follows: a. was seised of land in fee, and in consideration of a marriage to be had between his daughter and heir apparent, and b. son and heir apparent of c. he covenanted and agreed by indenture with c. that he himself would have, hold, and retain the land to himself, and the profits of during his life, and that after his decease the said son and daughter should have the land to them and to the heirs of their two bodies lawfully begotten, and that all persons then or afterwards seised of the land should stand and be seised immediately after the marriage solemnized to the use of the said a. for the term of his life, and after his death to the use of the said son and daughter in tail as above, and covenanted further to make an assurance of the land before a certain day accordingly &c. and then the marriage took effect; and afterwards a. bargained and sold the land for two hundred marks [2,667s.](of which not a penny is paid) to a stranger, who had notice of the first agreements, covenants, and use, and enfeoffed divers persons to this last use, against whom a common recovery was had to his last use; and also a. levied a fine to the recoverers before any execution had, and notwithstanding all these things a. continued possession in taking the profits during his life; and afterwards died; and the son and daughter entered, and made a feoffment to their first use. and all this matter was found in assize by assaby and others against lady anne manners and others. and judgment was given that the entry and feoffment were good and lawful, and the use changed by the first indenture and agreement. yet error was alleged. the judgment in the assize is affirmed. the famous shelley's case stands for the principle that where in any instrument an estate for life is given to the ancestor, and afterwards by the same instrument, the inheritance is limited whether mediately, or immediately, to his heirs, or heirs of his body, as a class to take in succession as heirs to him, the word "heirs" is a word of limitation, and the ancestor takes the whole estate. for example, where property goes to a for life and the remainder goes to a's heirs, a's life estate and the remainder merge into a fee in a. a can sell or devise this interest. edward shelley was a tenant in tail general. he had two sons. the older son predeceased his father, leaving a daughter and his wife pregnant with a son. edward had a common recovery (the premises being in lease for years) to the use of himself for term of his life, after his decease to the use of the male heirs of his body, and of the male heirs of the body of such heirs, remainder over. after judgment and the awarding of the writ of seisin, but before its execution, edward died. after his death, and before the birth of his older son's son, the writ of seisin was executed. the younger son entered the land and leased it to a third party. afterwards, the son of the older son was born. he entered the land and ejected the third party. it was held that the younger son had taken quasi by descent until the birth of the older son's son. the entry by the older son's son was lawful. the third party was lawfully ejected. (shelley's case, king's bench, 1581, english reports full reprint, vol. 76, page 206.) about 1567, london authorities punished nicholas jennings alias blunt for using elaborate disguises to present himself as an epileptic to beg for handouts from the public. he was pilloried, whipped, and pulled behind a cart through the streets. he was kept at the bridewell and was set to work at a mill. chapter 14 the times: 1601-1625 due in part to increasing population, the prices of foodstuffs had risen sixfold from the later 1400s, during which it had been stable. this inflation gradually impoverished those living on fixed wages. landlords could insist on even shorter leases and higher rents. london quadrupled in population. many lands that were in scattered strips, pasture lands, waste lands, and lands gained from drainage and disafforestation were enclosed for the introduction of convertible agriculture (e.g. market-oriented specialization) and only sometimes for sheep. the accompanying extinguishment of common rights was devastating to small tenants and cottagers. gentry and yeomen benefited greatly. there was a gradual consolidation of the land into fewer hands and demise of the small family farm. in towns, the mass of poor, unskilled workers with irregular work grew. prices finally flattened out in the 1620s. society became polarized with a wealthy few growing wealthier and a mass of poor growing poorer. this social stratification became a permanent fixture of english society. poverty was no longer due to death of a spouse or parent, sickness or injury, or a phase in the life cycle such as youth or old age. many full-time wage earners were in constant danger of destitution. more subdivided land holdings in the country made holdings of cottagers minuscule. but these were eligible for parish relief under the poor laws. beside them were substantial numbers of rogues and vagabonds wandering the roads. these vagrants were usually young unmarried men. there were no more licensed liveries of lords. during the time 1580 to 1680, there were distinct social classes in england which determined dress, convention in comportment which determined face-to-face contacts between superiors and inferiors, order of seating in church, place arrangement at tables, and rank order in public processions. it was influenced by power, wealth, life-style, educational level, and birth. these classes lived in separate worlds; their paths did not cross each other. people moved only within their own class. each class had a separate existence as well as a different life style from the other classes. so each class developed a wariness of other classes. however, there was much social mobility between adjacent classes. at the top were the gentry, about 2% of the population. their's was a landed wealth with large estate mansions. they employed many servants and could live a life of leisure. their lady wives often managed the household with many servants and freely visited friends and went out shopping, riding, or walking. they conversed with neighbors and made merry with them at childbirths, christenings, churchings, and funerals. gentlemen usually had positions of responsibility such as lords of manors and leaders in their parishes. these families often sent the oldest son to university to become a justice of the peace and then a member of parliament. they also served as justices and as county officers such as high constable of their hundred and grand jury member. their social, economic, and family ties were at least countywide. they composed about 700 gentle families, including the peers, who had even more landed wealth, which was geographically dispersed. after the peers were: baronets (created in 1611), knights, esquires, and then ordinary gentlemen. these titles were acquired by being the son of such or purchase. most gentry had a house in london, where they spent most of their time, as well as country mansions. about 4/5 of the land was in the hands of 7,000 of the nobility and landed gentry due in part to entails constructed by attorneys to favor hereditary interests. the gentry had also profited by commerce and possessions in the colonies. the country life of a country squire or gentleman dealt with all the daily affairs of a farm. he had men plough, sow, and reap. he takes part in the haying and getting cut grass under cover when a rain came. his sow farrows, his horse is gelded, a first lamb is born. he drags his pond and takes out great carps. his horses stray and he finds them in the pound. boys are bound to him for service. he hires servants, and some work out their time and some run away. knaves steal his sheep. his hog is stabbed. he and a neighbor argue about the setting up of a cottage. he borrows money for a daughter's dowry. he holds a leet court. he attends church on sunday and reads the lesson when called upon. he visits the local tavern to hear from his neighbors. country folk brawl. wenches get pregnant. men commit suicide, usually by hanging. many gentlemen spent their fortunes and died poor. new gentlemen from the lower classes took their place. the second class included the wealthier merchants and professional men of the towns. these men were prominent in town government. they usually had close family ties with the gentry, especially as sons. when wealthy enough, they often bought a country estate. the professional men included military officers, civil service officials, attorneys, some physicians, and a few clergymen. the instabilities of trade, high mortality rates in the towns, and high turnover rate among the leading urban families prevented any separate urban interest group arising that would be opposed to the landed gentry. also included in this second group were the most prosperous yeomanry of the countryside. the third class was the yeomanry at large, which included many more than the initial group who possessed land in freehold of at least 40s., partly due to inflation. freehold was the superior form of holding land because one was free to sell, exchange, or devise the land and had a political right to vote in parliamentary elections. other yeomen were those who possessed enough land, as copyholder or leaseholder, to be protected from fluctuations in the amount of the annual harvest, that is, at least 50 acres. a copyholder rented land from a lord for a period of years or lives, usually three lives including that of the widow, and paid a substantial amount whenever the copyhold came up for renewal. the copyholder and leaseholder were distinguished from the mere tenant-at-will, whose only right was to gather his growing crop when his landlord decided to terminate his tenancy. the average yeoman had a one and a half story house, with a milkhouse, a malthouse, and other small buildings attached to the dwelling. the house would contain a main living room, a parlor, where there would be one or more beds, and several other rooms with beds. no longer was there a central great hall. cooking was done in a kitchen or over the open fire in the fireplace of the main room. furniture included large oak tables, stools, settes or forms, chests, cupboards, and a few hard-backed simple chairs. dishware was wood or pewter. the yeomen were among those who governed the nation. they often became sureties for recognizances, witnesses to wills, parish managers, churchwardens, vestrymen, the chief civil officers of parishes and towns, overseers of the poor, surveyors of bridges and highways, jurymen and constables for the justices of the peace, and sheriffs' bailiffs. the families and servants of these yeomen ate meat, fish, wheaten bread, beer, cheese, milk, butter, and fruit. their wives were responsible for the dairy, poultry, orchard, garden, and perhaps pigs. they smoked and cured hams and bacon, salted fish, dried herbs for the kitchen or of lavender and pot-pourri for sweetening the linen, and arranged apples and roots in lofts or long garrets under the roof to last the winter. they preserved fruits candied or in syrup. they preserved wines; made perfumes, washes for preserving the hair and complexion, rosemary to cleanse the hair, and elder-flower water for sunburn; distilled beverages; ordered wool hemp, and flax to spin for cloth (the weaving was usually done in the village); fashioned and sewed clothes and house linens; embroidered; dyed; malted oats; brewed; baked; and extracted oils. many prepared herb medicines and treated injuries, such as dressing wounds, binding arteries, and setting broken bones. wives also ploughed and sowed, weeded the crops, and sheared sheep. they sometimes cared for the poor and sold produce at the market. some yeomen were also tanners, painters, carpenters, or blacksmiths; and as such they were frequently brought before the justices of the peace for exercising a craft without having served an apprenticeship. the third class also included the freemen of the towns, who could engage independently in trade and had political rights. these were about one-third of the male population of the town. the fourth class included the ordinary farmer leasing by copyhold, for usually 21 years, five to fifty acres. from this class were drawn sidesmen [assistants to churchwardens] and constables. they had neither voice nor authority in government. their daily diet was bacon, beer, bread, and cheese. also in this class were the independent urban craftsmen who were not town freemen. their only voice in government was at the parish level. the fifth and lowest class included the laborers and cottagers, who were usually tenants at will. they were dependent on day labor. they started work at dawn, had breakfast for half an hour at six, worked until dinner, and then until supper at about six; in the summer they would then do chores around the barns until eight or nine. some were hedgers, ditchers, ploughmen, reapers, shepherds, and herdsmen. the cottagers' typical earnings of about 1s. a day amounted to about 200 shillings a year, which was almost subsistence level. accordingly they also farmed a little on their four acres of land with garden. some also had a few animals. they lived in a one or two room cottage of clay and branches of trees or wood, sometimes with a brick fireplace and chimney, and few windows. they ate bread, cheese, lard, soup, and greens. if a laborer was unmarried, he lived with the farmer. theirs was a constant battle for survival. they often moved because of deprivation to seek opportunity elsewhere. the town wage-earning laborers ranged from journeymen craftsmen to poor casual laborers. the mass of workers in london were not members of guilds, and the crime rate was high. the last three classes also contained rural craftsmen and tradesmen, who also farmed. the variety of trades became very large, e.g. tinsmiths, chain smiths, pewterers, violin makers, and glass painters. the curriers, who prepared hides for shoemakers, coachmakers, saddlers, and bookbinders, were incorporated. the fourth and fifth classes comprised about three fourths of the population. then there were the maritime groups: traders, ship owners, master and seamen, and the fishers. over one fourth of all households had servants. they were the social equals of day laborers, but materially better off with food and clothing plus an allowance of money of two pounds [40s.] a year. those who sewed got additional pay for this work. there was no great chasm between the family and the servants. they did not segregate into a parlor class and a kitchen class. the top servants were as educated as their masters and ate at the same table. great households had a chaplain and a steward to oversee the other servants. there was usually a cook. lower servants ate together. servants were disciplined by cuffs and slaps and by the rod by master or mistress. maids wore short gowns, a large apron, and a gypsy hat tied down over a cap. chamber maids helped to dress their mistresses. servants might sleep on trundle beds stored under their master's or mistress's bed, in a separate room, or on the straw loft over the stables. a footman wore a blue tunic or skirted coat with corded loop fasteners, knee-britches, and white stockings. he walked or ran on foot by the side of his master or mistress when they rode out on horseback or in a carriage and ran errands for him, such as leading a lame horse home or running messages. a good footman is described in this letter: "sir, you wrote me lately for a footman, and i think this bearer will fit you: i know he can run well, for he has run away twice from me, but he knew the way back again: yet, though he has a running head as well as running heels (and who will expect a footman to be a stayed man) i would not part with him were i not to go post to the north. there be some things in him that answer for his waggeries: he will come when you call him, go when you bid him, and shut the door after him; he is faithful and stout, and a lover of his master. he is a great enemy to all dogs, if they bark at him in his running; for i have seen him confront a huge mastiff, and knock him down. when you go a country journey, or have him run with you a-hunting, you must spirit him with liquor; you must allow him also something extraordinary for socks, else you must not have him wait at your table; when his grease melts in running hard, it is subject to fall into his toes. i send him to you but for trial, if he be not for your turn, turn him over to me again when i come back..." dress was not as elaborate as in elizabethan times. for instance, fewer jewels were worn. ladies typically wore a brooch, earrings, and pearl necklaces. men also wore earrings. watches with elaborate cases were common. women's dresses were of satin, taffeta, and velvet, and were made by dressmakers. pockets were carried in the hand, fastened to the waist by a ribbon, or sewn in petticoats and accessible by a placket opening. the corset was greatly reduced. women's hair was in little natural-looking curls, a few small tendrils on the forehead with soft ringlets behind the ears, and the back coiled into a simple knot. men also wore their hair in ringlets. they had pockets in their trousers, first as a cloth pouch inserted into an opening in the side seam, and later sewn into the side seam. the bereaved wore black, and widows wore a black veil over their head until they remarried or died. rouge was worn by lower class women. the law dictating what classes could wear what clothes was difficult to enforce and the last one was in 1597. merchants who had become rich by pirating could now afford to extend their trading ventures well beyond the atlantic sea. cotton chintzes, calicoes, taffetas, muslins, and ginghams from india now became fashionable as dress fabrics. simple cotton replaced linen as the norm for napkins, tablecloths, bed sheets, and underwear. then it became the fashion to use calicoes for curtains, cushions, chairs, and beds. its inexpensiveness made these items affordable for many. there was a cotton-weaving industry in england from about 1621, established by cotton workmen who fled to england in 1585 from antwerp, which had been captured. by 1616, there were automatic weaving looms in london which could be operated by a novice. toothbrushes, made with horsehair, were a new and costly luxury. even large houses now tended to do without a courtyard and became compacted into one soaring and stately whole. a typical country house had deep-set windows of glass looking into a walled green court with a sundial in it and fringed around with small trees. the gables roofs are steep and full of crooks and angles, and covered with rough slate if there was a source for such nearby. there was an extensive use of red tile, either rectangular or other shapes and with design such as fishscales. the rooms are broad and spacious and include hall, great parlor, little parlor, matted chamber, and study. in the hall was still the great, heavy table. dining tables were covered with cloth, carpet, or printed leather. meals were increasingly eaten in a parlor. noble men now preferred to be waited upon by pages and grooms instead of by their social equals as before. after dinner, they deserted the parlor to retire into drawing rooms for conversation and desserts of sweet wine and spiced delicacies supplemented by fruit. afterward, there might be dancing and then supper. in smaller parlors, there was increasing use of oval oak tables with folding leaves. chests of drawers richly carved or inlaid and with brass handles were coming into increased use. walls were wainscotted and had pictures or were hung with tapestry. carpets, rugs, and curtains kept people warm. there were many stools to sit on, and some arm chairs. wide and handsome open staircases separated the floors, instead of the former circular stone closed stairwells. upstairs, the sitting and bedrooms open into each other with broad, heavy doors. bedrooms had four-post beds and wardrobes with shelves and pegs. under the roof are garrets, apple-lofts, and root-chambers. underneath is a cellar. outside is a farmyard with outbuildings such as bake house, dairy, cheese-press house, brewery, stilling house, malt house, fowl house, dove cot, pig stye, slaughter-house, wood house, barns, stable, and sometimes a mill. there were stew-ponds for fish and a park with a decoy for wild fowl. there was also a laundry, carpenter's bench, blacksmith's forge, and pots and equipment of a house painter. in the 1600s, towns were fortified by walled ditch instead of relying on castles, which couldn't contain enough men to protect the townspeople. also in towns, water was supplied by local pumps and wells. in 1613, a thirty-eight-mile aqueduct brought spring water into london. in the country, floors were of polished wood or stone and strewn with rushes. a ladies' attendant might sleep the same bedroom on a bed which slid under the ladies' bed. apprentices and shop boys had to sleep under the counter. country laborers slept in a loft on straw. bread was made in each household. there were bedroom chairs with enclosed chamber pots. wood fires were the usual type. coal was coming in to use in the towns and near coal mines. charcoal was also used. food was roasted on a spit over a fire, baked, or broiled. people still licked their fingers at meals. the well-to-do had wax candles. tallow dips were used by the poor and for the kitchen. people drank cordials and homemade wines made with grapes, currants, oranges, or ginger. some mead was also drunk. tobacco, potatoes, tea, asparagus, kidney beans, scarlet runners, cardoons (similar to artichokes), horseradish, sugarcane, and turkeys for christmas, were introduced from the new world, china, and india. tea was a rare and expensive luxury. coffee was a new drink. with the cane sugar was made sweetened puddings, pies, and drinks. the potato caused the advent of distillation of concentrated alcohol from fermented potato mashes. there was a distiller's company by 1638. distilleries' drinks had higher alcoholic content than wine or beer. the merchant adventurers sold in town stores silks, satins, diamonds, pearls, silver, and gold. there were women peddlers selling hats and hosiery from door to door and women shopkeepers, booksellers, alehouse keepers, linen drapers, brewers, and alewives. london had polluted air and water, industrial noise, and traffic congestion. work on farms was still year-round. in january and february, fields were ploughed and harrowed and the manure spread. also, trees and hedges were set, fruit trees pruned, and timber lopped. in march and april, the fields were stirred again and the wheat and rye sown. in may gardens were planted, hop vines trained to poles, ditches scoured, lambs weaned, and sheep watched for "rot". in june sheep were washed and sheared, and fields were spread with lime and clay, and manured. in july hay was cut, dried, and stacked. in august crops were harvested, which called for extra help from neighbors and townsmen who took holidays at harvesting. then there was threshing, and the sowing of winter wheat and rye. in the autumn, cider from apples and perry from pears may be made. by november the fall planting was finished and the time had come for the killing of cattle and hanging up their salted carcasses for winter meat. straw would be laid down with dung, to be spread next spring on the fields. stock that could not live outdoors in winter were brought into barns. government regulated the economy. in times of dearth, it ordered justices of the peace to buy grain and sell it below cost. it forbade employers to lay off workers whose products they could not sell. it used the star chamber court to enforce economic regulations. there were food riots usually during years of harvest failure, in which organized groups seized foodstuffs being transported or in markets, and enclosure riots, in which organized groups destroyed hedges and fences erected in agrarian reorganization to restrict access to or to subdivide former common pasture land. these selfhelp riots were last resorts to appeals. they were relatively orderly and did not expand into random violence. the rioters were seldom punished more than a fining or whipping of the leaders and action was taken to satisfy their legitimate grievances. the poor came to resent the rich and there was a rise in crime among the poor. penal laws were frequently updated in an effort to bring more order. enclosures of land were made to carry on improved methods of tillage, which yielded more grain and more sheep fleece. drainage of extensive marsh land created more land for agriculture. waste land was used to breed game and "fowling" contributed to farmers' and laborers' livelihoods. killing game was not the exclusive right of landowners, but was a common privilege. the agricultural laborer, who worked for wages and composed most of the wageearning population, found it hard to make ends meet. in 1610, weekly wages for a mason were 8s. or 5s., for a laborer were 6s. or 4s., for a carpenter 8s. or 6s. an unskilled laborer received 1s. a day. there were conventions of paternalism and deference between neighbors of unequal social status. a social superior often protected his lessers from impoverishment for instance, the landlord lessened rents in times of harvest failure. a social superior would help find employment for a lesser person or his children, stand surety for a recognizance, intervene in a court case, or have his wife tend a sick member of his lesser's family. a social obligation was felt by most of the rich, the landlords, the yeomen farmers, and the clergy. this system of paternalism and social deference was expressed and reinforced at commonly attended village sports and games, dances, wakes and "ales" (the proceeds of which went to the relief of a certain person in distress), "rush-bearings", parish feasts, weddings, christenings, "churchings" to give thanks for births, and funerals. even the poor were buried in coffins. also there was social interaction at the local alehouse, where neighbors drank, talked, sang, and played at bowls or "shove goat" together. quarrelling was commonplace. for instance, borough authorities would squabble over the choice of a schoolmaster; the parson would carry on a long fight with parishioners over tithe hens and pigs; two country gentlemen would continue a vendetta started by their great-grandfathers over a ditch or hunting rights; the parishioners would wrangle with the churchwardens over the allocation of pews. the position of one's pew reflected social position. men tried to keep the pews of their ancestors and the newly prosperous wanted the recognition in the better pews, for which they had to pay a higher amount. but, on the other hand, farmers were full of good will toward their neighbors. they lent farm and kitchen equipment, helped raise timbers for a neighbor's new barn, sent food and cooked dishes to those providing a funeral feast and to the sick and incurable. village standards of behavior required that a person not to drink to excess, quarrel, argue, profane, gossip, cause a nuisance, abuse wife or children, or harbor suspicious strangers, and to pay scot and bear lot as he was asked. neighbors generally got along well and frequently borrowed and loaned small sums of money to each other without interest for needs that suddenly arose. bad behavior was addressed by mediation and, if this failed, by exclusion from holy communion. there was also whipping and the stocks. marital sex was thought to be good for the health and happiness of the husband and enjoyable by wives. the possibility of female orgasm was encouraged. both women and men were thought to have "seed" and drank certain potions to cause pregnancy or to prevent birth. some argued that orgasm of both partners was necessary for the "seed" of the male and female to mix to produce pregnancy. most women were in a virtual state of perpetual pregnancy. both catholics and protestants thought that god wanted them to multiply and cover the earth. catholics thought that the only goal of sex was procreation. men were considered ready for marriage only when they could support a family, which was usually at about age 30. brides were normally virgins, but there was bridal pregnancy of about 20%. women usually married at about age 25. marriages were usually within one's own class and religion. the aristocracy often initiated matches of their children for the sake of continuity in the family estates and tried to obtain the consent of their children for the match in mind. the age of consent to marry was 14 for boys and 12 for girls. girls in arranged marriages often married at 13, and boys before they went to university. but the girls usually stayed with their parents for a couple of years before living with their husbands. if married before puberty, consummation of the marriage waited for such time. in other classes, the initiative was usually taken by the child. dowries and marriage portions usually were given by the parents of the bride. wet-nurses frequently were used, even by puritans. there were no baby bottles. many babies died, causing their parents much grief. about 1/4 of women's deaths occurred during childbirth. a child was deemed to be the husband's if he was within the four seas, i.e. not in foreign lands, for an agreed length of time. illegitimacy was infrequent, and punished by church-mandated public penance by the mother and lesser penance and maintenance by the father. the church court punished adultery and defamation for improper sexual conduct. the established church still taught that the husband was to be the authority in marriage and had the duty to provide for, protect, and maintain his wife. wives were to obey their husbands, but could also admonish and advise their husbands without reproach. in literature, women were portrayed as inferior to men intellectually and morally as well as physically. in reality wives did not fit the image of women portrayed by the church and literature. quarrels were not uncommon and were not stopped by a husband's assertion of authority. wives were very active in the harvesting and did casual labor of washing, weeding, and stone-picking. farmers' and tradesmen's wives kept accounts, looked after the garden, orchard, pigs, and poultry; brewed beer; spun wool and flax; and acted as agents in business affairs. wives of craftsmen and tradesmen participated actively in their husbands' shops. wives of weavers spun for their husband's employers. wives of the gentry ran their households with their husbands. the lady of a large mansion superintended the household, ordering and looking after the servants, and seeing to the education of her children. mothers handed down their recipes to their daughters. women still did much needlework and embroidering for clothing and house, such as cushions, screens, bed curtains, window curtains, hangings, footstools, book covers, and small chests of drawers for valuables. liking simplicity, puritan women did less of this work. naming one's wife as executor of one's will was the norm. jointures were negotiated at the betrothal of ladies. widows of manorial tenants were guaranteed by law one-third of family real property, despite creditors. but most testators went beyond this and gave a life interest in the farm or family house. so it was customary for a widow to remain in occupation of the land until her death or remarriage. few widows or widowers lived with one of their children. widows usually had their husband's guild rights and privileges conferred upon them, e.g. to receive apprentices. in london, custom gave 1/3 of a deceased husband's estate to his wife on his death, but 2/3 if there were no children. the other part went according to his will. if a widows did not remarry in memory of her husband, she was esteemed. but remarriage was common because the life expectancy after birth was about 35 years. sons of the well-to-do went into law, the church, the army, or the navy. if not fit for such, they usually went into a trade, apprenticing, for instance, with a draper, silk merchant, or goldsmith. sometimes a son was sent to the house of a great man as a page or esquire to learn the ways of courtiers and perhaps become a diplomat. the guild with its master and their employees was being replaced by a company of masters. about 5% of the population was catholic, although it was against the law to practice this religion. indeed it long been the practice to sequester their lands, punish them for going to mass, fine them for not attending the established church, banish their priests, and imprison those who aided priests. there was a catholic plot in 1605 to blow up parliament and the king with gunpowder and to restore catholicism as the state religion with a catholic king. it was discovered and the conspirators were executed. then there was a crackdown on catholics, with houses being searched for hiding places for priests. also, legislation was passed barring catholics from many offices. james i ruled over both england and scotland. he had come from scotland, so was unfamiliar with english love of their rights, passion for liberty and justice, and extensive discussing of religion and quoting scripture. when he came to the throne, he had a conference with a group of puritans who asked for certain reforms: ceremonies such as the cross in baptism and the ring in marriage should not be used, only educated men competent to preach should be made ministers, bishops should not be allowed to hold benefices that they did not administer, and minor officials should not excommunicate for trifles and twelve-penny matters. he not only denied their requests, but had the english bible revised into the king james version, which was published in 1611. this was to replace the popular geneva bible written by english protestant refugees from catholic queen mary's reign, which he did not like because some of its commentary was not highly favorable to kings. james didn't believe a king had to live by the law; he hadn't as king of scotland. he tried to imbue into england the idea of a divine right of kings to rule that he had held in scotland. the established church quickly endorsed and preached this idea. the selection of the clergy of the parish churches was now often in the hands of the parishioners, having been sold to them by the patron lord of the manor. some patrons sold the right of selection to a tradesman or yeoman who wished to put in his son or a relative. some rights of selection were in the hands of bishops, the colleges, and the crown. the parish clergyman was appointed for life and removed only for grave cause. most parishioners wanted a sermon created by their minister instead of repetitious homilies and constant prayer. they thought that the object of worship in church was to rouse men to think and act about the problems of the world. in 1622, the king mandated that clergymen quote scripture only in context of the book of articles of religion of 1562 or the two books of homilies and not preach any sermon on sunday afternoon except on some part of the catechism or some text out of the creed, ten commandments, or the lord's prayer. the puritan movement grew. about 5% of the protestants were puritans. these included country gentlemen and wealthier traders. they dressed simply in gray or other drab colors and wore their hair short to protest the fashion of long curls. they lived simply and disapproved of dancing because it induced lasciviousness and of theater because of its lewdness. theaters and brothels still shared the same neighborhoods, the same customers, and sometimes the same employees. prostitutes went to plays to find customers; men shouldered and shoved each other in competing to sit next to attractive women to get to know them. the puritans also disapproved of cock fights because they led to gambling and disorder, and maypole celebrations because of their paganism. there was less humor. many became stoics. the puritan church ceremonies were plain, with no ornamentation. puritans prayed several times a day and read the bible to each other in family groups to look for guidance in their conduct and life. they asked for god to intervene in personal matters and looked for signs of his pleasure or displeasure in happenings such as a tree falling close but not touching him, or his horse throwing him without injury to him. when there was an illness in the family or misfortune, they examined their past life for sins and tried to correct shortcomings. they circulated records of puritan lives including spiritual diaries. they believed in the equality of men and that a good man was better than a bad peer, bishop, or king. puritan influence made families closer and not merely dependent on the will of the husband or father. there was a sense of spiritual fellowship among family members as individuals. they emphasized the real need of a lasting love relationship between husband and wife, so a mutual liking that could develop into love between a young couple in an arranged match was essential. most puritans felt that the bishops were as tyrannical as the pope had been and that more reform was needed. they favored the presbyterian form of church government developed by john calvin in switzerland. the presbyter was the position below bishop. parishes were governed by boards consisting of a minister and lay elders elected by the parishioners. these boards sent elected representatives to councils. all lay elders and ministers had equal rank with each other. the calvinist god preordained salvation only for the elect and damnation and everlasting punishment for the rest of humanity, but the puritans had an optimism about avoiding this damnation. they believed that at his conversion a person received grace, which was a sign that he was predestined for salvation. they rejected all ecclesiastical institutions except as established by each parish over its own elected pastor and members. they rejected the established church's control from the top by bishops. they believed in negotiating directly with god for the welfare of the soul without the priest or church organization. the fear of witchcraft grew with puritanism. poor decrepit old defenseless women, often deformed and feeble-minded, were thought to be witches. their warts and tumors were thought to be teats for the devil to suck or the devil's mark. cursing or ill-tempers (probably from old age pains) or having cats were further indications of witchery. when the king learned in 1618 that the english puritans had prevented certain recreations after the sunday service, he proclaimed that the people should not be restrained from lawful recreations and exercise such as dancing, may-games, whitsunales, morris-dances, may-pole sports, archery for men, leaping, and vaulting. also women could carry rushes to decorate the church as they had done in the past. (still unlawful on sunday were bear and bull baitings and bowlings.) his stated purpose was to prevent people such as catholics from being deterred from conversion, to promote physical fitness for war, and to keep people from drinking and making discontented speeches in their ale houses. besides the puritans, there were other independent sects, such as the congregationalists, whose churches gathered together by the inspiration of jesus. this sect was started by english merchants residing in holland who set up congregations of englishmen under their patronage there; they kept minister and elders well under their control. the baptists emerged out of the independents. they believed that only adults, who were capable of full belief, and not children, could be baptized. they also believed that it was the right of any man to seek god's truth for himself in the scriptures and that obedience to the state should not extend beyond personal conscience. one fourth of all children born did not live to the age of ten, most dying in their first year. babies had close caps over their head, a rattle, and slept in a sturdy wood cradle that rocked on the floor, usually near the hearth. babies of wealthier families had nurses. the babies of ladies were suckled by wet nurses. parents raised children with affection and tried to prepare them to become independent self-sustaining adults. there was less severity than in tudor times, although the maxim "spare the rod and spoil the child" was generally believed, especially by puritans, and applied to even very young children. in disciplining a child, an admonition was first used, and the rod as a last resort, with an explanation of the reasons for its use. there were nursery rhymes and stories such as "little bo-peep", "jack and the beanstalk", "tom thumb", "chicken little", and robin hood and king arthur tales, and probably also "puss in boots", "red ridinghood", "cinderella", "beauty and the beast", "bluebeard" and aesop's fables. "little jack horner" who sat in a corner was a satire on the puritan aversion to christmas pudding and sense of conscious virtue. toys included dolls, balls, drums, and hobby horses. children played "hide and seek", "here we go around the mulberry bush", and other group games. school children were taught by "horn books". this was a piece of paper with the alphabet and perhaps a religious verse, such as the paternoster prayer, that was mounted on wood and covered with thin horn to prevent tearing. little girls cross-stitched the alphabet and numerals on samplers. block alphabets were coming into use. most market towns had a grammar school which would qualify a student for university. they were attended by sons of noblemen, country squires [poor gentlemen], merchants, and substantial yeomen, and in some free schools, the poor. school hours were from 6:00 a.m. to noon or later. multiplication was taught. if affordable, families had their children involved in education after they were small until they left home at about fifteen for apprenticeship or service. otherwise, children worked with their families from the age of seven, e.g. carding and spinning wool, until leaving home at about fifteen. there were boarding schools such as winchester, eton, westminster, st. paul's, and merchant taylors'. there, senior boys selected for conduct and ability supervised younger boys. they thereby got experience for a future in public life. the system was also a check on bullying of the weak by the strong. the curriculum included lilly's "grammar", aesop, terence's roman comic plays, virgil's "aeneid" (the national epic of rome), cicero's "letters" reflecting roman life, sallust's histories showing people and their motives, caesar's "commentaries" on the gallic and civil wars, horace's "epistles" about life and poetry, poet ovid's "metamorphoses" on adventures and love affairs of deities and heroes, or "fasti" on roman religious festivals and customs, donatus' grammar book, and other ancient latin authors. football, with hog bladders, and tennis were played. these schools were self-supporting and did their own farming. private schools for girls were founded in and around london. they were attended by daughters of the well-to-do merchant class, nobility, and gentry. they were taught singing, playing of instruments, dancing, french, fine sewing, embroidery, and sometimes arithmetic. fewer served in the house of some noble lady as before. most commonly, the sons and daughters of gentlemen and nobles were taught by private tutors. a tutor in the house educated the girls to the same extent as the boys. there were not many girls' boarding schools. frequently, the mother educated her daughters. a considerable number of girls of other backgrounds such as the yeomanry and the town citizenry somehow learned to read and write. boys began at university usually from age 14 to 18, but sometimes as young as 12. the universities provided a broad-based education in the classics, logic and rhetoric, history, theology, and modern languages for gentlemen and gave a homogenous national culture to the ruling class. there was a humanist ideal of a gentleman scholar. the method of study based largely on lectures and disputations. each fellow had about five students to tutor. in many cases, he took charge of the finances of his students, paying his bills to tradesmen and the college. his reimbursement by the students' fathers put them into friendly contact with the family. the students slept in trundle beds around his bed and had an adjacent room for study. scholasticism was only starting to give way to modern studies. aristotle, whose authority was paramount, remained the lynch pin of university studies, especially for logic and dialectic. the study of rhetoric was based on quintilian, the latin writer, and the greek treatise of hermogenes of tarsus. also studied was cicero's orations as models of style. examination for degrees was by disputation over a thesis of the student. the b.a. degree was given after four years of study, and the m.a. after three more. there were advanced degrees in civil law (after seven more years of study), medicine (after seven years), divinity (required more than seven years), and music. many of the men who continued for advanced degrees became fellows and took part in the teaching. most fellowships were restricted to clerics. oxford and cambridge universities operated under a tutorial system. access to grammar schools and universities was closed to girls of whatever class. oxford university now had the bodleian library. in the universities, there were three types of students: poor scholars, who received scholarships and also performed various kinds of service such as kitchen work and did errands for fellows such as carrying water and waiting on tables; commoners, who paid low fees and were often the sons of economical gentlemen or businessmen; and the fellow commoners (a privileged and well-to-do minority, usually sons of noblemen or great country gentlemen). the fellow commoners paid high fees, had large rooms, sometimes had a personal tutor or servant, and had the right to eat with the fellows at high table. here, gentlemen made friends with their social equals from all over the country. students wore newfashioned gowns of any colors and colored stockings. they put on stage plays in latin and english. the students played at running, jumping, and pitching the bar, and at the forbidden swimming and football. they were not to have irreligious books or dogs. cards and dice could be played only at christmas time. students still drank, swore, and rioted, but they were disallowed from going into town without special permission. those below a b.a. had to be accompanied by a tutor or an m.a. they were forbidden from taverns, boxing matches, dances, cock fights, and loitering in the street or market. sometimes a disputation between two colleges turned into a street brawl. punishment was by flogging. each university had a chancellor, usually a great nobleman or statesman, who represented the university in dealings with the government and initiated policies. the vice-chancellor was appointed for a year from the group of heads of college. he looked out for the government of halls, enforced the rules of the university, kept its courts, licensed wine shops, and shared control of the town with the mayor. tutors were common. they resided at the boy's house or took boys to board with them at their houses in england or on the continent. the tutor sometimes accompanied his student to grammar school or university. puritans frequently sent their sons to board in the house of some frenchman or swiss protestant to learn the calvinist doctrines or on tour with a tutor. certain halls in the universities were predominately puritan. catholics were required to have their children taught in a home of a protestant, a relative if possible. the inns of court were known as "the third university". it served the profession of law, and was a training ground for the sons of nobility and the gentry and for those entering the service of the commonwealth. the inns were self-governing and ruled by custom. students were to live within the inn, two to a room, but often there were not enough rooms, so some students lived outside the quadrangles. every student was supposed to partake of commons or meals for a certain fraction of the year from eight weeks to three months and there to argue issues in cases brought up by their seniors. in hall the students were not allowed to wear hats, though caps were permitted, nor were they to appear booted or spurred or carrying swords. for the first two years, they would read and talk much of the law, and were called clerks commoners. after two years they became mootmen or inner barristers. in five or six years they might be selected to be called to the bar as utter barristers, whose number was fixed. there was no formal examination. the utter barrister spent at least three more years performing exercises and assisting in directing the studies of the younger men. after this time, he could plead in the general courts at westminster, but usually carried on law work in the offices of other men and prepared cases for them. participating in moots (practice courts) was an important part of their education. lectures on statutes and their histories were given by readers. physicians were licensed by universities, by the local bishop, or in london, by the college of physicians and surgeons. most were university graduates, and because of the expense of the education, from well-to-do families. for the b.a., they emphasized greek. for the m.a., they studied the works of greek physicians galen and hippocrates, roman physician claudius, and perhaps some medieval authorities. after the m.a., they listened to lectures by the regius professor of medicine and saw a few dissections. three years of study gave them a m.b., and four more years beyond this the m.d. degree. a physician's examination of a patient cost 10s. the physician asked about his symptoms and feelings of pain, looked at his eyes, looked at his body for spots indicative of certain diseases, guessed whether he had a fever, felt his pulse, and examined his urine and stool. there were no laboratory tests. smallpox was quickly recognized. wrapping red cloth around the person and covering the windows with red cloth being promoted healing without scarring. gout was frequent. syphilis was common in london and other large centers, especially in court circles. it was ameliorated by mercury. an imbalance of the four humors: blood, phlegm, choler, bile was redressed by bloodletting, searing, draining, and/or purging. heart trouble was not easily diagnosed and cancer was not recognized as a life-threatening disease. childbirth was attended by physicians if the patient was well-to-do or the case was serious. otherwise women were attended only by midwives. they often died in childbirth, many in their twenties. the theory of nutrition was still based on the four humors and deficiency diseases were not understood as such. physician william harvey, son of a yeoman, discovered the circulation of the blood from heart to lungs to heart to body about 1617. he had studied anatomy at padua on the continent and received an m.d. there and later at cambridge. then he accepted a position at the hospital of st. bartholomew to treat the poor who came there at least once a week for a year. he agreed to give the poor full benefit of his knowledge, to prescribe only such medicines as should do the poor good without regard to the pecuniary interest of the apothecary accompanying him, to take no reward from patients, and to render account for any negligence on his part. he also dissected animals. one day he noted when stroking downward on the back of one hand with the finger of the other, that a vein seemed to disappear, but that it reappeared when he released his finger. he surmised that there was a valve preventing the bloodâ��s immediate return to the vein. then he ascertained that the heart was a pump that caused pulses, which had been thought to be caused by throbbing of the veins. he tied the arteries and found that the arterial blood flowed away from the heart. he tied the veins and found that venal blood flowed into the heart. he found that the blood flowed from the lungs to the left side of the heart, and from thence was pumped out to the body. blood also flowed from the body to the right side of the heart, from which it was pumped to the lungs. the two contractions closely followed one another, rather than occurring at the same time. the valves in the veins prevented backflow. it was now clear why all the blood could be drained away by a single opening in a vein. it was also clear why a tight ligature, which blocked the arteries, made a limb bloodless and pale and why a looser ligature, which pressed only on the veins, made a limb swell turgid with blood. multiplying an estimate of the amount of blood per beat with the number of beats, he concluded that the amount of blood did not change as it circulated. he concluded that the only purpose of the heart was to circulate the blood. this diminished the religious concept that the heart was the seat of the soul and that blood had a spiritual significance and was sacred. a visit by a physician cost 13s.4d. melancholia, which made one always fearful and full of dread, and mania, which made one think he could do supernatural things, were considered to be types of madness different from infirmities of the body. despite a belief held by some that anatomical investigation of the human body was a sin against the holy ghost, physicians were allowed to dissect corpses. so there were anatomy textbooks and anatomy was related to surgery. barber-surgeons extracted teeth and performed surgery. the white and red striped barber pole initially indicated a place of surgery; the red represented blood and the white bandages. the physicians turned surgery over to the surgeons, who received a charter in 1605 by which barbers were excluded from all surgical work except bloodletting and the drawing of teeth. surgeons dealt with skin disease, ulcers, hernia, bladder stones, and broken bones, which they had some skill in setting. they performed amputations, which were without antiseptics or anesthesia. internal operations usually resulted in death. caesarian section was attempted, but did not save the life of the mother. apprenticeship was the route to becoming a surgeon. a college of surgeons was founded. students learned anatomy, for which they received the corpses of four executed felons a year. the apothecaries and grocers received a charter in 1607, but in 1618, the apothecaries were given the sole right to purchase and sell potions, and to search the shops of grocers and stop the sale by them of any potions. in london, the apothecaries were looked over by the college of physicians to see that they were not selling evil potions or poisons. in 1618 was the first pharmacy book. there were three hospitals in london, two for the poor, and bedlam [bethlehem] hospital for the insane. others were treated at home or in the physician's home. theaters were shut down in times of plague to prevent spread of disease there. towndwellers who could afford it left to live in the country. shakespeare wrote most of his plays in this period. most popular reading was still bibles, prayer books, psalm books, and devotional works. also popular were almanacs, which started with a single sheet of paper. an almanac usually had a calendar; information on fairs, roads, and posts; farming hints; popularized scientific knowledge; historical information; sensational news; astrological predictions; and later, social, political, and religious comment. many households had an almanac. books tried to reconcile religion and science and religion and passion or sensuality. walter ralegh's "history of the world", written while he was in prison, was popular. ben johnson wrote poetry and satiric comedies. gentlemen read books of manners such as james cleland's "institution of a young noble man" (1607). in 1622, the first regular weekly newspaper was started. although there was a large advance in the quality of boys' education and in literacy, the great majority of the people were unable to read fluently. since writing was taught after one could read fluently, literacy was indicated by the ability to sign one's name. almost all gentlemen and professional men were literate. about half the yeomen and tradesmen and craftsmen were. only about 15% of husbandmen, laborers, servants, and women were literate. the royal postal system carried private as well as royal letters, to increase income to the crown. postmasters got regular pay for handling without charge the mail of letters that came from or went to the letter office in london. the postmaster kept horses which he let, with horn and guide, to persons riding "in post" at 3d. per mile. the post was to travel 7 mph in summer and 5 mph in winter and sound his horn four times in every mile or whenever he met travelers. wool and animals for butchering were sold in london with the sellers' agent in london taking the proceeds and paying out to their order, the origin of check writing. scriveners drew up legal documents, arranged mortgages, handled property transactions, and put borrowers in touch with lenders. they and the goldsmiths and merchants developed promissory notes, checks, and private paper money. the influx of silver from the new world was a major factor in the second great inflation in england and in the devaluation of money to about one third of what it had been. also contributing to the inflation was an outracing of demand over supply, and a debasement of the coinage. this inflation benefited tenants to the detriment of their lords because their rents could not be adjusted upward. there was an increase in bankruptcies. houses of correction were built. the elizabethan love of madrigal playing gradually gave way to a taste for instrumental music, including organs and flutes. the violin was introduced and popular with all classes. ballads were sung, such as "barbary allen", about a young man who died for love of her, after which she died of sorrow. when they were buried next to each other, a rose from his grave grew around a briar from her grave. the ballad "geordie" relates a story of a man hanged for stealing and selling sixteen of the king's royal deer. the ballad "matty groves" is about a great lord's fair young bride seducing a lad, who was then killed by the lord. in the ballad "henry martin", the youngest man of three brothers is chosen by lot to turn pirate to support his brothers. when his pirate ship tries to take a merchant ship, there is sea fight in which the merchant ship sinks and her men drown. the ballad "the trees they do grow high" tells of an arranged marriage between a 24 year old woman and the 14 year old son of a great lord. she tied blue ribbons on his head when he went to college to let the maidens know that he was married. but he died at age 16, after having sired a son. may day was a holiday with dancing around a maypole and people dressed up as characters such as queen of the may, robin hood, little john, friar tuck, maid marion, the fool, and the piper. new year's day was changed to january 1st. golf was played in scotland, and james introduced it into england. james i was the last monarch to engage in falconry. francis bacon wrote the "advancement of learning" and "novum organum" (new learning) in which he encouraged the use of the inductive method to find out scientific truths and also truths in general, that is reasoning from a sample to the whole. according to him, the only way to arrive at the truth was to observe and determine the correlations of facts. he advocated a process of elimination of hypothesized ideas. first, experiments were made, then general conclusions were drawn from them, and then these generalizations were tested in further experiments. his "new learning" showed the way out of the scholastic method and reverence for dogma into the experimental method. he wrote "natural and experimental history". he studied the effect of cold in preventing animal putrefaction. by this time, what was known about mathematics included fractional exponents, trigonometry in terms of arcs of angles, long division, square root symbol, decimal fractions, methods for solving cubic equations, trigonometry in terms of ratios of sides of a right triangle, equal sign, plus and minus signs, and a consistent theory imaginary numbers. galileo galilei was a professor of mathematics at the university of padua in italy and was later a protege of the powerful medici family. he conducted experiments, e.g. throwing objects off the tower of pisa in 1590 to show that all, whether light or heavy, fall at the same rate. this disproved the widely held belief that heavier objects fall faster than light objects. he reasoned by induction from experiments that the force of gravity has the same effect on all objects regardless of their size or weight. his law stated that the speed of their descent increases uniformly with the time of the fall, i.e. speed [velocity] = gravity's acceleration multiplied by time. this was a pioneering mathematization of a physical phenomenon. from his observation that an object sliding along a plane travels increasingly farther and slows down at a decreasing rate as the surfaces become smoother and more lubricated, he opined that the natural state of a body in motion is to stay in motion, and that it is slowed down by a resistant force (â��frictionâ��). he conceived of the air giving a frictional force to an object moving through the air. >from his experiments showing that a rolling ball rolls up a plane farther the lesser the slope of the plane, he intuited that if the plane were horizontal, the ball would never stop rolling except for friction. he opined that bodies that are at rest stay at rest and bodies that are in motion stay in uniform motion (â��inertiaâ��), unless and until acted upon by some force. this was a radical departure from aristotle's theory that any horizontal motion requires a prime mover. galileo drew a graph of distance versus time for the rolling ball, which indicated that the distance traveled was proportional to the square of the time elapsed. he put his ideas of vertical and horizontal motion together to explain the movement of projectiles, which travel horizontally, but also fall downward vertically. he realized that the movement of a projectile involved a horizontal impetus of projection and a vertical force of gravity, each being independent of the other, but acting simultaneously, instead of sequentially. he demonstrated that a projectile follows the path of a parabola, instead of a straight line, and that it descends a vertical distance which is proportional to the square of the time taken to fall. that is, a thrown object will strike the ground in the same amount of time as an object simply dropped from the same height. this suggested that gravity was a constant force. galilieo described mathematically the motion of a lever such as a seesaw in which the weight on one side multiplied by its distance from the fulcrum is equal to the weight on the other side multiplied by its distance from the fulcrum. galileo determined that a pendulum, such as a hanging lamp, swings back and forth in equal intervals of time. he measured this time with water running through a tube; the weight of the water was proportional to the time elapsed. also, pendulums with equal cord length swing at the same rate, regardless of the substance, weight, or shape of the material at the end. so a pendulum could be a mechanical clock. galileo knew that ice floated on water because ice is less dense and therefore lighter than water. it had formerly been thought that ice was heavier than water, but floated on water because of its shape, especially broad, flat-bottomed pieces of ice. the telescope was invented in 1608. the next year, galileo built a greatly improved telescope to observe bodies in the skies. he observed that the spots on the moon had shifting illumination and that the moon's perimeter had a jagged outline. from this he deduced that the surface of the moon had mountains, valleys, and craters much like the earth, and was illuminated by reflected light. he noticed that the planet jupiter had moons orbiting it in a manner similar to the orbit of the earth's moon. he observed that when the planet venus was very small it had a round shape and when it was very large (and therefore nearer the earth), it had a crescent shape. also, venus progressed through periodic phases of increasingly wide crescent shapes in a manner similar to the phases of crescent shapes of the earth's moon. he realized that these features of venus could be explained only if venus revolved around the sun, rather than around the earth. this finding added credence to the copernican theory that the earth and all planets revolve around the sun. but church doctrine that the sun revolved around the earth was supported by the biblical story of god making the sun stand still to give additional sunlight on a certain day so a certain task could be completed that day. galileo argued against a literal interpretation of the bible, so he was denounced by the church. his finding of sunspots on the sun conflicted with church doctrine that the celestial bodies such as the sun were perfect and unblemished. his observation that certain sun spots were on certain locations of the sun, but changed location over time, suggested that the sun might be rotating. he observed that when air was withdrawn by a suction pump from the top of a long glass tube whose lower open end was submerged in a pan of water, the water rose to a height of 34 feet and no higher. this result indicated that the evacuated space above the water was a vacuum: an empty space. the notion of a vacuum, a space where there is nothing or void, was difficult for philosophers to accept. they believed that nature abhored a vacuum and would prevent it. about 1600, galileo invented the first thermometer by heating air at the top of a tube whose open end was in a bowl of water; as the top end cooled, the air contracted and water rose part way up the tube; the column of water rose or fell with every change of temperature. galileo invented the compound refracting microscope, which used more than one lens, about 1612. galileo's book on the arguments for and against the copernican theory was unexpectedly popular when published in 1632. the general public was so persuaded by the arguments that the earth revolved around the sun that papal authority felt threatened. so galileo was tried and convicted of heresy and sentenced to prison as an example to others who might question church doctrine, even though the seventy year old galileo recanted and some of the inquisition judges who convicted him believed the copernican theory and their decision did not assert the contrary. john napier, a large calvinist landholder in scotland who had built his own castle, did mathematics in his older years. he explored imaginary numbers, which involve square roots of negative numbers. by 1614, he had started and developed the theory of logarithms: the relationships among positive and negative exponents of numbers. this simplified calculations because the multiplication and division of numbers with a common base could be done by addition and subtraction of their exponents. his table of logarithms, which took him twenty years to compile, was used in trigonometry, navigation, and astronomy. it reduced the enormous labor involved in trigonometric calculations. in 1622, willliam oughtred invented the slide rule for calculations. johannes kepler was a mathematician from germany who made his living as an astrologer. he was in contact with galileo by letter, as most scientists of europe were with each other. kepler was fascinated with perfect geometric shapes, which he tried to relate to celestial phenomenon. he discerned that the orbit of mars was not perfectly circular. he knew that the apparent path of the sun with respect to the constellation of fixed stars differed in speed at different times of the year. he opined that this showed that the speed of the earth revolving around the sun varied according to the time of year. then he measured the angles between the earth and the sun and the earth and mars as they changed through the martian year. he noted when the earth, mars, and the sun were on the same straight line. then he deduced the earth's true orbit, and from this the true orbits of the other planets. then by trial and error, he attempted to match this empirical data with regular mathematically defined shapes, until he discovered in 1609 that these paths were elliptical. also, the planets each move faster when they are nearer the sun and more slowly when they are farther from the sun so that in equal time intervals, a line from the planet to the sun will sweep out equal areas. this observation led him to opine that there is a force between the sun and each planet, and that this force is the same as that which keeps the moon in its orbit around the earth. thirdly, in 1619, he found that the square of the time for each planet's orbit about the sun is proportional to the cube of that planet's mean distance from the sun, so that the farther planets orbit at a slower speed. he connected the earth's tides with the gravitational pull of the moon. kepler also confirmed that the paths of comets were governed by a law and were farther from the earth than the moon. this contradicted the church's explanation that what lies within the moon's orbit pertains to the earth and is essentially transitory and evil, while what lies beyond belongs to the heavens and is permanent and pure. renee descartes, a french mathematician, scientist, and philosopher, had a revelation that the structure of the universe was mathematical and that nature obeyed mathematical rules. in 1637, he invented analytic [cartesian] geometry, in which lines and geometric shapes can be described by algebraic equations and vice-versa. all conic sections: circles, ellipses, parabolas, and hyperbolas, could be represented by equations with two unknowns, or variables, on a coordinate system in which each point is represented by a pair of numbers representing distances from the two axis lines. an algebraic equation with two unknowns, could be represented as a shape thereon. an algebraic equation with one unknown represented a straight line thereon. the points of intersection geometrically was equivalent to the common solution of the associated algebraic equations. he started the convention of representing unknown quantities by x, y, and z and known quantities by a, b, and c. so, for instance, a circle with center at point 2,3 and a radius of 4 was represented by the equation: (x-2) squared + (y-3) squared = 4. he pioneered the standard exponential notation for cubes and higher powers of numbers. analytic geometry aided in making good lenses for eyeglasses. the glass was first manufactured with attention to quality. then, after it cooled and solidified, the clearest pieces were picked and their surfaces ground into the proper curvature. descartes formulated the law of refraction of light, which deduces the angle of refraction [deflection] of light through a medium from the lights' angle of incidence and the speed of light in each media in which the light passes. this explained why a rainbow is circular. in 1644, he described the universe in terms of matter and motion and suggested that there were universal laws and an evolutionary explanation for such. he opined that all effects in nature could be explained by spatial extension and motion laws that 1) each part of matter retains the shape, size, motion, or rest unless collision with another part occurs; 2) one part of matter can only gain as much motion through collision as is lost by the part colliding with it; and 3) motion tends to be in a straight line. descartes feared persecution by the church because his ideas did not correlate with the biblical notion of god's creation of the universe in the order of light, then sky and oceans and dry land, then plants, then seasons and the sun and moon and stars, then fish and birds, then all animals, and finally man. descartes believed in a good and perfect god, and thought of the world as divided into matter and spirit. the human mind was spirit and could exist outside the human body. without the mind, human body was a machine. the human mind had knowledge without sense experience, e.g. the truths of mathematics and physics. ideas and imagination were innate. his observation that sensory appearances are often misleading, such as in dreams or hallucinations, led him to the conclusion that he could only conclude that: "i think, therefore i am." he rejected the doctrine that things had a proper behavior according to their natures, e.g. the nature of acorns is to develop into oak trees. as an example of erroneous forming of conceptions of substance with our senses alone, he pointed out that honeycomb has a certain taste, scent, and texture, but if exposed to fire, it loses all these forms and assumes others. he considered to be erroneous the belief that there are no bodies around us except those perceivable by our senses. he was a strong proponent of the deductive method of finding truths, e.g. arguing logically from a very few selfevident principles, known by intuition, to determine the nature of the universe. christian huygens, a dutch physicist, used the melting and the boiling point of water as fixed points in a scale of measurements, which first gave definiteness to thermometric tests. there was much mining of coal, tin, copper, lead, and iron in the 1600s. coal was transported from the coal pits down to the rivers to be loaded onto ships on coal wagons riding on wooden rails. the full coal cars could then be sent down by gravity and the empty wagons pulled up by horses. sheet metal, e.g. lead, was used for roofing. coal was much used for heating houses, and for laundry, cooking, and industrial use, such as extraction of salt, soap boilers, and manufacture of glass, bricks and tiles for buildings, anchors for ships, and tobacco pipes. it was used in the trades: bakers, confectioners, brewers, dyers, sugar refiners, coopers, starch makers, copper workers, alum makers, and iron workers. in 1604 the haberdashers, who sold imported felt for hats, got a charter of incorporation. a tapestry factory was established in 1619. flax-working machines came into existence. as attorney general, edward coke was impassioned and melodramatic. he once described the parts of the penalty of treason as follows: being drawn to the place of execution reflected the person's not being worthy any more to tread upon the face of the earth; being drawn backward at a horse tail was due to his retrograde nature; being drawn head downward on the ground indicated that he was unfit to breathe the common air; being hanged by the neck between heaven and earth indicated that he was unworthy of either; being cut down alive and his privy parts cut off and burnt before his face indicated he was unworthily begotten and unfit to leave any generation after him; having his bowels and inners taken out and burnt indicated he had inwardly conceived and harbored such horrible treason; his head cut off, which had imagined the treason, and his body to be quartered and the quarters set up to the view and detestation of men a prey for the fowls of the air. coke was subsequently elevated to the position of chief of common pleas and then to chief of the king's bench. but there coke propounded a doctrine of the supremacy of the law over the king as well as over parliament. for instance, coke would not agree to stay any case in which the king had a concern in power or profit, to consult with him. but the other eleven justices did agree. since james i believed in the divine right of kings, he therefore dismissed coke from his position as chief justice of the king's bench. james even believed that he could suspend any law for reasons known only to him and issue proclamations that were not limited to the reinforcement of old laws, but made new offenses with punishment of fine and/or imprisonment. coke then became a member of parliament and led the commons, where he exalted the authority of parliament vis a vis the king; that is, the king could not make any changes in law, religion, or taxation without consent of parliament. james arrested coke and two other members of the commons and put its leader john pym under house arrest for their outspoken opinions against the king's intended alliance with catholic spain and intended taking of a spanish wife. because of the deadlock that developed between the king and parliament, certain matters could not be addressed by legislation and were left to be decided judicially. this made judicial review of disputes important. james vastly increased the number of peerages, selling many, for example for 10,000 pounds. since there was a tacit understanding that members of parliament would not accept remuneration, this restricted eligibility for membership to the rich. the house of commons was composed mostly of attorneys, merchants from the large towns, and country gentlemen. the gentry members had 600 pounds [12,000s] annual income from land and the burgess members had 300 pounds [6,000s.] in addition to the two knights from every county (elected by men holding at least forty-shilling freeholds), four representatives from london, and one or two from every other borough (generally elected by the top business families), there was a representative from each of the two universities. for speaker, they always chose someone suggested to them by the crown. he decided who would talk and could hasten or delay bills, usually for the benefit of the crown. the clerk, a lifetime appointment of the crown, wrote out the bills and their amendments and kept track of proceedings. many in the commons were puritan in sympathy. in 1607, the house of commons developed a committee system to avoid being presided over by the royally designated speaker. a committee could consist of all the members of the house of commons with an elected chairman. an increasing number of issues were discussed in committee before coming to the commons and the commons came to ratify readily what had been done in committee. by 1610, there had developed in the house of commons an opposition to feudal tenures, purveyance, wardships, and impositions (special import and export duties on aliens set by the king without the consent of parliament that were supposed to be for the purpose of regulating trade instead of for revenue). there was also a call for free speech and an end to the king's habit at the end of parliament of imprisoning for a time those who had been too outspoken. the commons also asserted itself into foreign affairs by expressing an opinion against a treaty proposed by the king on which war could ensue. the treaty was abandoned. in london, organized groups such as the apothecaries, the skinners, and the grocers, were circulating printed statements of their cases to members of committees of the house of commons rather than just seeking out a friendly privy council member. in 1621, the protests made to committeemen about monopolies sold by james frightened him into canceling many of them. he had made many grants against competition in violation of law. the right of the commons to expel a member was asserted by the expulsion of a monopolist. by 1629, the speeches of prominent members and the course of proceedings were copied by stationers and sold in a weekly news report. the king's privy council dealt constantly with foreign affairs, and also with the great companies, and problems arising such as gold leaving the country, the dutch ships increased efficiency in transporting goods, the declining market for english cloth, strikes in the mining industry, decaying harbor works, the quality of food and drink, the wrongs done to the poor, and above all, the general peace and order. they formed commissions to study situations and sent orders to justices of the peace on methods to address certain problems and to sheriffs to carry out certain acts. about 1618, a group within the privy council began to concentrate on foreign affairs, especially "cabinet counsels", that is, with secret matters. james sold high offices of state to supplement his income. his income from customs had increased so much that it was now three times that from crown lands. the sheriff looked after crown lands and revenues in his county. he gathered the rents, the annuities, the stray animals, the deodands, the fees due to the king, the goods of felons and traitors. he was still a means of communication between the privy council and the county. he announced new statutes of parliament and proclamations by the king at the county courts and in the markets. he used posse comitatus to disperse riots. he was the functionary of the assize court, impaneling its juries, bringing accused men before it, and carrying out its penalties. he carried out elections of members of the house of commons. there were two high constables for each hundred. they were chosen by the justices of the peace at quarter sessions, and were usually small gentry or well-to-do yeomen. they were the intermediaries between the justices and the petty constables. the petty constable was the executive official of the village. he was usually elected by the suitors to the leet court of the manor for a year. he might be a farmer, an artisan, a carpenter, a shoemaker, or many times a tradesman, a butcher, or baker. he often visited the alehouse to learn of any trouble in the making. he would intervene in quarrels and riots and tell the participants to desist in the king's name. if they didn't, he could call on all bystanders to help him "force a quiet". he had to lead the rioters and causers of injuries to others, hold them there until he could bring him before the nearest justice. he would inform the justice of plots to trespass or forcibly enter land to take possession. he saw to it that no new cottages were built in the villages without due authority. he supervised markets and inns. he reported lapses of care for apprentices by their masters to the justice. at harvest time, he called upon all able bodied persons to assist and punished those who didn't respond by putting them in the stocks or fining them forty shillings. he arrested and whipped vagrants and sturdy rogues and sent them back to their place of birth through constables on the way. if a horse was stolen, he raised the hue and cry to all neighboring constables. he made inquiry into the paternity of the coming child of an unmarried pregnant girl to make him take responsibility for the child and pay her 8d. a week lest it fall into the responsibility of the village. in a town, he might have watchmen to help him see that the streets were peaceful at night. the constable assisted the justice of the peace, the high constable, and the sheriff. he pressed men into military service. he collected taxes for the sheriff and collected the money for purveyance, the money for the poor, maimed soldiers, and various kinds of prisoners, which the parish had to pay. he was often the spokesman for the village in village concerns, such as too many alehouses, brought to the attention of justices at quarter sessions. the constable and churchwardens together collected money for the parish, looked after the needy, and kept in close touch with the overseers of the poor, who cared for the sick and old, found work for the idle, took charge of bastards, apprenticed orphan children, and provided supplies for the workhouse. in 1609 the east india company was given a monopoly by the crown that was indefinitely long as long as it was profitable to the realm in the king's opinion. interlopers were to forfeit their ships and goods, one-half to the company and one-half to the crown. monopoly status made the company competitive with the dutch and portuguese monopoly companies. the crown received a gift or a loan from the company in return. at first, the company raised capital for each separate voyage. but voyages tried to undercut each other and rival factions squabbled over cargoes. so the company then raised a "terminable joint-stock" for a period of years. the first of these was issued in 1613-16 and financed a fleet every year for four years. subscriptions were called in by yearly installments and dividends paid out yearly. the voyage of 1613 brought shareholders a profit equivalent to about 11% a year. by 1620, the company operated thirty to forty "tall ships", many built in its own dockyards. these dockyards were so technologically advanced that they were daily viewed by visitors and ambassadors. here, besides wet and dry docks, there were timber yards, a foundry and cordage works for supplying the ships' hardware and a bakery and saltings for their provisioning. more than 200 craftsmen were directly employed in the yard. overall the company was one of london' largest employers. in 1606, the first charter of the virginia company was issued for trading purposes. it gave the settlers "all liberties, franchises, and immunities" they had in england. to oversee this colony, the crown appointed a council. virginia established the episcopal church by law. virginia became a joint-stock company in 1609. but exports were few (timber, soap ashes, pitch, tar, and dyes) for several years, and then tobacco emerged as a source of profit. king james imposed a heavy duties on imported tobacco because it corrupted man's breath with a stinking smoke. in 1607, the muscovy company, hired henry hudson to find a northwest passage through north america to the pacific ocean. life was difficult for puritan separatists, who wanted to separate from the established church. they were imprisoned and their houses were watched day and night for illegal meetings. in 1620, after trying holland and when there was a depression in england, a few puritan separatists, along with other pilgrims, left for virginia in the mayflower, but landed in new england and founded plymouth colony. they were led by william bradford and william brewster, their spiritual leader. they planted fields and made friends with the indians. in 1621, they secured a patent to the merchants and planters together for a voluntary joint-stock company in new england. later, it became the self-governing massachusetts bay colony. the canons of the church of 1604 provided for excommunication for anyone who propounded that the king did not have the same authority in ecclesiastical matters as the godly kings among the jews and christian emperors in the primitive church, that the church of england was not a true and apostolic church, that worship according the book of common prayer and administration of sacraments was corrupt or superstitious, or that other methods of the church were wicked, unchristian, or superstitious. church sanctuary was abolished for those accused of criminal offenses because it had been abused by thieves paying their rent by thieving at night. it remained available to those accused of civil offenses. the law churchwardens of every parish shall oversee the poor in their parish. they shall, with consent of the justices of the peace, set to work children whose parents cannot maintain them and also set to work married or unmarried persons who have no trade and no means to maintain themselves. churchwardens shall tax every inhabitant, including parson and vicar and every occupier of land and houses, as they shall think fit. there will be a convenient stock of flax, hemp, wool, thread, iron and other necessary ware and stuff to set the poor on work. there will be competent sums of money for the relief of the lame, impotent, old, blind, and others not able to work, and also for the putting out of children to be apprentices. child apprentices may be bound until 21 years of age or until time of marriage. they shall account to the justices of the peace for all money received and paid. the penalty for absence or neglect is 20s. if any parish cannot raise sufficient funds, the justices of the peace may tax other nearby parishes to pay, and then the hundred, and then the county. grandparents, parents, and children of every poor, old, blind, lame, or impotent person not able to work, being of sufficient ability, shall at their own charge, relieve and maintain every such poor person in that manner and according to that rate as justices of the peace of that county determine, or else forfeit 20s. per month. two justices of the peace may commit to gaol or house of correction persons refusing to work and disobedient churchwardens and overseers. the overseers may, with the consent of the lord of the manor, build houses on common or waste land for the poor at the expense of the parish, in which they may place more than one family in each house. every parish shall pay weekly 2-10d. toward the relief of sick, hurt, and maimed soldiers and mariners. counties with more than fifty parishes need pay only 2-6d. the county treasurer shall keep registers and accounts. soldiers begging shall lose their pension and shall be adjudged common rogues or vagabonds subject to imprisonment and punishment. sheriffs summoning defendants without a writ shall pay 200s. and damages to the defendant, and 400s. to the king. persons stealing crops from lands or fruit from trees shall be whipped. since administrators of goods of people dying intestate who fail to pay the creditors of the deceased often can't pay the debts from their own money, the people (who are not creditors) receiving the goods shall pay the creditors. every person shall receive the holy communion in church at least once a year or else forfeit 20 pounds for the first year and 40 pounds for the second year, and threescore pounds for every year after until he takes the said sacrament. no person convicted of catholicism may practice the common law as a counsellor, clerk, attorney, or solicitor, nor may practice civil law as advocate, or proctor, nor shall be justice, minister, clerk, or steward in any court, nor practice medicine, nor perform as apothecary, nor be officer in a town, in the army, or navy, or forfeit 100 pounds as punishment. nor may they be administrators of estates, or have custody of any child as guardian. nor may they possess any armor, gunpowder, or arms. nor may anyone print or import popish books rosaries, or else forfeit 40s. no merchant may dress black rabbit skins, nor export them, unless dressed by skinners and bought from them because the skinners have been thus deprived of their livelihoods to their impoverishment throughout the realm. beer may be exported when malt is at 16s. per quarter because exporting beer instead of barley and malt will (1) increase the export tax to the king, (2) increase income for coopers and brewers, and (3) provide more jobs in transporting beer, which is more voluminous, to the great comfort of the port towns. fish which are spawning and growing in harbors may not be taken by any net or weirs because this practice has hurt fishermen and the realm. london may make a trench to bring water to the north part of the city and shall compensate the owners of lands by agreement with them of an amount or an amount determined by commissioners. actors profaning god, jesus, or the holy ghost on stage are to be penalized 200s. no one shall sell beer or ale to an unlicensed alehousekeeper because abuses there have become intolerable. every person convicted of drunkenness shall be penalized 5s. or else placed in the stocks for six hours, because the loathsome and odious sin of drunkenness has grown into common use lately and it is the root of many other sins, such as bloodshed, stabbings, murder, swearing, fornication, and adultery, and is detrimental to the arts and manual trades and diverse workmen, who become impoverished. offenders convicted a second time shall be bound with two sureties to the sum of 200s. no person at least 18 years of age may be naturalized or restored in blood after being attainted unless he takes the sacrament and the oath of supremacy [of the king over the church of england], and oath of allegiance [to the king]. money given by will for the apprenticeship of poor children shall be managed by incorporated towns and unincorporated parishes. masters receiving such apprentices shall become bound with sufficient sureties. houses of correction shall be built in every county. lewd women, having bastards, chargeable to the parish, shall be committed to the house of correction to be punished and set to work for one year. persons deserting their families shall be deemed incorrigible rogues and punished as such. persons such as sorters who purloin or embezzle wool or yarn delivered to them by clothiers and the receivers thereof, knowing the same, shall recompense the party grieved or else be whipped and set in the stocks. all hospitals and abiding places for the poor, lame, maimed, and impotent persons or for houses of correction founded according to the statute of elizabeth shall be incorporated and have perpetual succession. only lands and hereditaments paying rents to the crown within the last sixty years shall be claimed by the crown; the title of all persons and corporation who have enjoyed uninterruptedly against the crown for the last sixty years are confirmed against the crown. a seminal patent-protection law was passed in 1624. it stated that all monopolies to any person or persons, bodies politic or corporate for the sole buying, selling, making, working, or using of anything within the realm are void. this does not include london or towns. parties aggrieved by such may recover treble damages in the superior courts, with double costs. excepted are existing patents, for 21 years or less, for new inventions and for future patents for 14 years or less. excepted also are patents for printing or making saltpeter, gunpowder, shot or ordinance, etc.; patents concerning allum mines or newcastle coal or glass making or export of calves' skins or making smalts [deep-blue pigment or glass] or melting iron ore; grants of office; and licenses for taverns. because benefit of clergy is not allowed to women convicted of felony by reason whereof many women suffer death for small causes, any woman convicted for the felonious taking of any money, goods or chattels greater than 12d. and less than 10s. other than burglary or robbery on the highway or from the person of any man or woman without their knowledge, shall be branded and marked in the hand upon the brawne of the left thumb with a "t" and imprisonment, whipping, stocking, or sending to the house of correction for a year or less. no one may take more than 8% interest on loans because 10% has caused many, including gentry, merchant, farmer, and tradesman, to sell their land and forsake their trade to pay their debts. mothers concealing the death of a bastard baby shall suffer as for murder, unless one witness proves the child was born dead. papists running a school must forfeit 40s. a day for such. anyone conveying a child beyond the seas to be educated in popery may not sue in the courts, may not hold any office, and shall forfeit 100 pounds and all lands. but the child returning may have his family lands restored to him if he receives the sacrament of the lord's supper in the established church after reaching 18 years of age. in 1604 it was decided that it was not necessary to prove that witchcraft caused the death of a person for there to be punishment for the witchcraftery. all that was necessary now was the practice of witchcraft. the punishment was death by hanging. also, consulting or feeding an evil spirit was felony. as attorney general, coke introduced the crime of "seditious libel" in a case before the star chamber in 1606. these written slanders or libels were viewed as incitements to disorder and private vengeance. because the tendency to cause quarrels was the essence of the crime, the truth of the libel was not a defense, but might be an aggravation of criminality. edward coke, former chief justice of both the court of common pleas and court of the queen's bench, wrote his reports on court cases of all kinds through forty years and his institutes on the law, in which he explained and systematized the common law and which was suitable for students. this included a commentary and update of littleton, published in 1627; old and current statutes; a description of the criminal law; and lastly an explanation of the court system, the last two published in 1644. coke declared that "a man's house is his castle". coke waged a long battle with his wife over her extensive property and the selection of a husband for their daughter. in his institutes, he described the doctrine of coverture as "with respect to such part of the wife's personality as is not in her possession, as money owing or bequeathed to her, or accrued to her in case of intestacy, or contingent interests, these are a qualified gift by law to the husband, on condition that he reduce them into possession during the coverture, for if he happen to die, in the lifetime of his wife, without reducing such property into possession, she and not his representative will be entitled to it. his disposing of it to another is the same as reducing it into his own possession." he further states that "the interest of the husband in, and his authority over, the personal estate of the wife, is, however, considerably modified by equity, in some particular circumstances. a settlement made upon the wife in contemplation of marriage, and in consideration of her fortune, will entitle the representatives of the husband, though he die before his wife, to the whole of her goods and chattels, whether reduced into possession or not during the coverture. ... a settlement made after marriage will entitle the representative of the husband to such an estate in preference to the wife. ... a court of equity will not interfere with the husband's right to receive the income during the coverture, though the wife resist the application." judicial procedure defendants may not petition to remove a case to the westminster courts after a jury is selected because such has resulted in unnecessary expense to plaintiffs and delay for defendants in which they suborn perjury by obtaining witnesses to perjure themselves. in 1619, by the writ of quo warranto, a government office or official could be made to explain by what right he performed certain acts. james i asserted an authority to determine the jurisdiction between the various courts. the court of high commission heard mostly matrimonial cases, but also moral offenses both of clergy and laity, and simony, plurality, drunkenness, and other clerical irregularities. the star chamber court still was primarily directed against force and fraud and defended the common people from over-mighty lords and over-pliable justices of the peace, for instance by deterring enclosure. it also enforced monopolies. however, there was a growing tendency for king james, who sat on it, to abuse its power with high fines. a lord accused with foul language by a huntsman of following hounds of a chase too closely threatened to use his horse whip on the huntsman's master when the huntsman threatened to complain to his master. the lord was fined 10,000 pounds. james' council used torture to obtain information from accused felons about possible conspiracies against him. the ordinary administrative court of first instance is formed by the single justices of the peace, who issue orders regarding public safety, order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, and fire, and particularly begging and vagrancy as well as regulations of wages, servants, apprentices, and day laborers. for more important resolutions, the special sessions of the justices of the peace of a hundred for a court of intermediate instance and appointed overseers of the poor. all justices of the peace were present at the quarter sessions, which were held at least four times a year, and were primarily a court of appeal from penal sentences, but also make the county rate, appoint county treasurers and county prison and house of correction governors, regulate prices and wages, settle fees of county officials, grant licenses for powder mills, and register dissenting chapels. it heard appeals expressly allowed by statute. the central courts also heard appeals by writ of certiorari as to whether an administrative act was in accordance with existing law, whether the court is competent, and whether the administrative law has been rightly interpreted. this writ of certiorari ceased in the 1700s. justices of the peace who have the power to give restitution of possession to tenants of any freehold estate of their lands or tenements which have been forcibly entered and withheld, shall have like power for tenants for term of years, tenants by copy of court roll, guardians by knight service, and tenants by elegit statute merchant and staple of lands or tenements [tenant-plaintiffs holding property to receive income therefrom for satisfaction of a debt of defendants.] the justices of the peace were chosen by the crown, usually by the chancellor. the qualifications were residence in the county, suitability of moral character, religious uniformity, and the possession of lands or tenements with twenty pounds a year. they were almost exclusively country gentlemen, except in the towns. in the corporate towns, the mayor, bailiff, recorder, and senior aldermen were ex officio [by virtue of the office] justices of the peace. their main duty was to keep the peace. if a justice heard of a riot in the making, he could compel individuals at the place to give bonds of good-a-bearing and cause a proclamation to be made in the king's name for them to disperse. two justices or more had the authority to arrest the rioters and send a record of it to the assizes and to the privy council. if the riot had taken place before their arrival, they could make an inquiry by a jury and certify the results to the king and his council. the justices had men brought before them on many kinds of charges, on their own summons, or on initiative of the petty constable. they tried to draw these men into confession by questioning. after indictment, a person had the choice of a petty jury trial or paying a fine. the justices of the peace could insist upon presentment juries or surveys of offenses by local officers, but, without the institution of policemen, not many crimes were prosecuted because victims were unwilling or could not afford to initiate judicial action. their unwillingness was partly due to the severity of penalties, e.g. death for the theft of over 12s. and whippings and fines for misdemeanors. further, the offender was frequently a neighbor with whom one would have to live. mediation by the local constable often took place. when there an outbreak of lawlessness in an area, a commission might be set up especially for that area to enforce the law. assault cases were common in courts of assize and courts of quarter sessions. the quarter sessions were those of a number of justices of the peace held for a couple of days four times a year for the more important cases in the jurisdiction of the justices of the peace. assault was violence or threat of imminent violence. fines were graduated according to the means of the offender, who was usually bound over to keep the peace. most involved offenders and victims who were neighbors and included people of substantial standing in the village. also, a sizable minority were directed against local officers such as constables, bailiffs, or taxcollectors. three-fourths of all assize indictments and many quarter-sessions indictments were for various types of theft, including petty larceny, grand larceny, housebreaking, burglary, sheep stealing, and robbery. these offenses were mostly opportunistic rather than planned, except for london's underworld of professional thieves and the cutpurses of country markets and highway robbers on lonely roads. there were substantial peaks in theft in periods of harvest failure and industrial depression, especially by vagrants. but most of the poor never stole. the justices of the peace usually deferred to the learned justices of assize for cases of felony, murder, rape, highway robbery, and witchcraft. most homicides were the result of an impassioned argument leading to blows inflicted by nearby commonplace items picked up and used as weapons. only 18% of homicides were within the family. men were still declared outlaw if they failed to come to court after repeated summons. the lord keeper regularly advised the assize justices, before each circuit departure, to relieve the poor, supply the markets, maintain the roads (which were frequently impassable in winter for wagons or coaches), enforce church attendance, suppress superfluous and disorderly alehouses, and put down riots, robberies, and vagrancy, and in times of dearth, to suppress speculation in foodstuffs, prevent famine, and preserve order. in fact, the justices were most attentive to offenses which affected them as rate payers for the poor. these were offenses against cottaging laws (e.g. erection of cottages which lacked the statutory four acres of land), harboring of "inmates", disputes of settlement of paupers, bastardy, vagrancy, church nonattendance, and above all, disorderly alehouses. alehousing had been a wellestablished means of poor employment since the 1200s, so it was hard to enforce licensing laws. further, alehouses were the centers of social life for the common people; both women and men met their friends there. if an attorney or solicitor delays his client's suits to work his own gain or over charges his client, the client can recover his costs and treble damages and the attorney and solicitor shall be disbarred. none may be admitted to any court of the king but such as have been brought up in the same court or is otherwise well-practiced in soliciting of causes and has been found by their dealings to be skillful and honest. an attorney who allows another to use his name shall forfeit 400 shillings and be disbarred. offenders shall pay the charge of their own conveyance to gaol or the sum shall be levied by sale of their goods so that the king's subjects will no longer be burdened thereby. plaintiffs' costs shall be paid by the defendants where there is a judgment against the defendant in all actions in which the plaintiff is entitled to costs on judgment for him, to discourage frivolous and unjust suits. by 1616, chancery could order injunctions to stop activities. in slade's case of 1602, the court of the queen's bench held that assumpsit may be brought in place of the action of debt. so assumpsit supplants debt for recovering liquidated sums and is then called "indebitatus assumpsit". a statute of 1623 gave rights for adverse possession. it provided that all writs of formedon [right to land by gift of an estate tail] in descender, formedon in remainder, and formedon in reverter for any manors, lands, tenements, or hereditaments shall be sued within twenty years, for the quieting of men's estates and avoiding of suits. in default thereof they shall be excluded from such entry except children under 21 years, women-covert, non compos mentis, imprisoned or overseas shall have an additional ten years after their disability ceases if the twenty years have expired. the limitation for bringing actions on the case (except slander), account, trespass, replevin, debt, detinue for goods and chattels and the action of trespass, quare clausum fregit [damages for unlawful entry on land], is within 6 years; for trespass of assault, battery, wounding, imprisonment is within 4 years; and for actions upon the case for words is within 2 years. the trial of sir walter ralegh in 1603 began a call for a right to confront and question one's accusers. before trial, privy counselors who in theory sat as impartial justices, cross-examined ralegh in prison. with a carefully selected jury present, the trial began with reading of the indictment, which ralegh had not yet seen. he was charged with treason in plotting with catholic spain to put arabella stuart on the throne. arabella was to write to spain promising peace, toleration of catholics in england, and direction by spain in her marriage choice. he pled not guilty and took no exception to any jurors, stating that he knew them all to be honest men. next, attorney general edward coke, his enemy and rival, and he engaged in a debate about who was right, with coke outright bullying him. coke then produced a signed confession by lord cobham that implicated him in the alleged conspiracy and accepting 10,000 crowns for his part. ralegh was given permission to speak. he said that cobham had retracted his confession. he ridiculed the idea that he would betray england to spain for gold after fighting against spain, including risking his life three times, and spending 4,000 pounds for the defeat of spain. he pointed to a treatise he had written to the king on the present state of spain and reasons against peace. then there was a discussion on the validity of cobham's confession. cecil gave an oration of ralegh. coke gave a speech. ralegh asked to have his accuser brought before him face to face. he cited law that two witnesses were necessary for a conviction for treason. chief justice popham replied that only one witness was necessary under common law, which applied to his case, and that the trial was properly conducted by examination of the defendant. coke added that it would be improper to call cobham because he was a party. then coke surprised ralegh with a letter from cobham stating that ralegh had asked cobham to procure him an annual pension of 1500 pounds from spain for disclosing intelligence. ralegh acknowledged that a pension was offered, but denied that he had ever intended to accept it. he admitted that it was a fault not to inform authorities of this offer. the jury deliberated for fifteen minutes and returned with a verdict of guilty. the chief justice delivered the sentence for treason: drawing, hanging, disemboweling, beheading, and quartering. the whole trial was not so much to access guilt, but to show the general public that the person was guilty. church courts were revived after a period of disuse. they could annul an unconsummated or legally invalid marriage (e.g. consanguinity, impotence, a witnessed precontract to marry) and order judicial separations in case of adultery, cruelty, or apostasy. annuled marriages made a person's children illegitimate. an action at common law for "criminal conversation" [adultery] with the plaintiff's spouse or for assault and battery could result in an order for separation. but only a private statute of parliament could grant a divorce, which allowed remarriage. it was granted in only a few cases and only to the very wealthy. church officials spied upon people's conduct to draw them into their courts and gain more money from the profits of justice. in 1610, edward coke, chief justice of the court of common pleas, decided that the statute giving the royal college of physicians power to imprison and fine those practicing without a license was invalid and unenforceable because it gave the college half of each fine awarded, which was a conflict of interest with its role as an adjudicator. coke said that a maxim of the common law was that no man ought to be judge in his own cause. by this decision, he asserted a court supremacy over parliament with respect to the validity of statutes. he opined that the courts should not only be independent of the crown, but should act as arbiter of the constitution to decide all disputed questions. in his words, "when an act of parliament is against common right and reason, the common law will control it and adjudge such act to be void." justices still explained and in some degree interpreted legislative acts of parliament as they had since the 1500s, but their right to do so was coming into question and was slowly lost. female scolds were still dunked into water as punishment. only barristers, who were called to the bar after being in long residence in one of the inns of court, could practice before the king's court. attorneys and solicitors prepared cases for barristers and practiced before minor courts. the king appointed the justices, with the advice of the chancellor. james i often intimidated the justices to see things his way. the oath of a justice was: "well and truly ye shall serve the king and his people. and ye shall take no fee or livery of none but the king, nor gift or reward of none that hath a do before you except it shall be meat or drink of small value, as long as the plea hangs before you. and ye shall do equal law and execution of right to all the king's subjects rich and poor, without regard to any person. ye shall counsel our sovereign lord the king in his need. and ye shall not delay any person of common right for the letters of the king or of any person or for any other cause ... so help you god." the courts of king's bench and common pleas, and the chancery all met simultaneously in westminster hall. throngs passed up and down the middle aisles between the courts, including booksellers, stationers, scriveners, and vendors of bread and hot meat. the hall was so cold that people kept on their coats and hats. the last court case concerning villeinage was in 1618. chapter 15 the times: 1625-1642 the entourage of charles i came to be called "cavaliers". they were named by their opponents for the spanish caballero who was a catholic who prosecuted protestants. their hair had long, curled, and flowing locks. they wore a broad-rimmed decorated hat. their fancy jackets and breeches were loose. boots were wide and folded over at the top. young men wore earrings and painted their faces. a lady wore her hair in ringlets on each side of her face. her dress was fitted at the waist, with a peaked bodice. it was low at the shoulders with a scoop neckline in front. she often wore much lace, especially at the neck down to the bust line. her outer dress and under-skirt that was revealed in front were full and made of satin and stiff silk or velvet. only hose of silk was worn at court. a majority of prosperous industrial towns and fee farmers, led sometimes by lords or old landed gentry were puritans. they dressed plainly and in somber colors such as black, grey, and buff, with no ornamentation except plain white collars and cuffs of linen rather than of lace. wool replaced silk and velvet. no jewelry was worn. the puritan women also wore long white aprons. the puritan men for a time had short-cut hair. the puritanparliamentarians were given the name "roundheads" after the cropheaded london apprentices whose rioting had marked every stage of the conflict between king and parliament. the puritan women smoothed their hair back into little knobs and covered their hair and head with a white covering. both puritan men and women wore broad-rimed hats and plain shoes. the ordinary country man wore a felt hat, broadcloth coat, woolen trousers, hand-knitted worsted stockings, and plain, strong shoes. nine-tenths of the people were protestant. religion was a favorite and serious topic of discussion, even among the illiterate. on the whole, they were more inclined to salvation by grace than to salvation by good works. popular reading included guides for good manners such as "the rich cabinet" by thomas gainsford, and "youths behavior" translated from the french by francis hawkins. it advised not to sit with one leg on the other, but with the feet even; not to spit on one's fingers; and not to sniffle in the sight of others. books for ladies such as "delights for ladies" by hugh platt told them how to adorn themselves, tables, closets, and rooms with beautiful objects, perfumes, and waters. it taught preserving and the making of candy preserved by sugar, cooking, and housewifery. gervase markham wrote advice for men in "hobsons horse-load of letters", which addressed serious negotiations, private businesses, amorous accomplishment, wanton merriment, and the defense of honor and reputation. "a helpe to discourse" primed a man to meet company with suggested questions and answers, epigrams, riddles, and jests. in henry peacham's "the compleat gentleman" (1622), the model cavalier is portrayed in terms of horsemanship, tilting, sports, choice of companions, reserved and dignified conduct, good scholarship, and responsibility. this popular book was a guide to university, where there was a seven year course of classroom lectures. it advised conversation with men of the soundest reputation for religion, life, and learning, but recreation with those of the same rank and quality. first place was to be given to religion, so that the foundation of all studies would be the service of god. following in importance were: speaking and writing in english or latin (grammar, syntax, and rhetoric), astronomy, astrology, geography (whose authorities were pliny, strabo, and the pagan writers of the first century), chorography [map-making], mathematics, including arithmetic and geometry, poetry (reading, writing, and criticizing), music, including part-music, drawing, limning [putting drawings in books], painting, art history, exercise (riding, running, leaping, tilting, throwing, wrestling, swimming, shooting, and falconry), logic and disputation if related to one's intended profession such as the law, philosophy (plato and aristotle), and some medicine and botany. richard brathwaite's "the english gentleman" portrays the somber puritan who accepts the gospel of work. he is a staid and serious businessman. "matrimonial honour" by daniel rogers opined that for success, a marriage must be godly, with the parties equally religious, worshipping together in private and in public. a hasty or worldly marriage would bring repentance. the spouses should agree, but keep to their spheres. children should not be spoiled. large households were more or less self-supporting and were managed by their ladies. work included ordering wool, hemp, and flax; making cloth and dying it; dairy work; brewing; malting; baking; preserving wines; extracting oils; distilling perfume; and putting on banquets. couches were coming into use in parlors. the flemish johann baptista van helmont demonstrated that metals dissolved in acid can be recovered through chemical means and enunciated the doctrine that each thing in nature has its own specific organization. the king and his court entourage settled for most of the year in whitehall instead of traveling around the country. the king let the public into hyde park for recreation. the city of london and westminster were still separate, but a mass of hovels was springing up in between them. the water carrier was still active and the night transport of sewage necessary. in certain areas there were houses crowded with those wanted for minor offenses, small thefts, and debt. bailiffs did not dare venture into these areas because the inhabitants hid and defended each other unless the offense was a major one. the penalty for stealing even small sums was still death. inigo jones was the first architect of consequence. he had studied in italy and designed and built the banqueting house at whitehall in london in 1622. it had classical proportions and nice shaping and dressing in stone. he was now an arbiter of taste for the king charles and his queen and built many structures for them, including the queen's chapel at st. james palace and her bedroom in the queen's hose in greenwich. all over london and the country he and his pupils built many classical buildings, including houses, churches, stables, lodgings, out-buildings, staircases, galleries, watergates, and archways. they stood in stark contrast to the tudor buildings around them. in the 1632, jones started town planning in london with covent garden fruit and vegetable market with terraced houses around a central piazza surrounded by open arcades with a tuscan church at one end. in 1634, a man from the suburb of hackney introduced a line of coaches rented at 1s. per hour. they soon became very popular. a large part of england was rebuilt as yeomen expanded their houses and others lower in rank replaced mud and wood hovels with brick and stone cottages. a separate kitchen appeared. the ground floors are boarded over to create bedrooms. permanent stairs replace ladders. glass appears in windows. glass and crockery replace wood and pewter, chairs replace benches. knives and forks become common. about 1640 began travel between towns by covered wagons called stage coaches. they carried passengers and goods and stopped at inns for stabling and repairs. work was begun in 1630 to make canals that would make marsh waters run to the sea. barges on canals were the most efficient mode of transportation. a barge could carry 50 tons on a canal and only 30 tons on a river. a single horse could haul an 8-ton wagon on iron rails or on a soft road, but only 1/8 of a ton on his back. real wages, which had been falling, reached their low point and the gap between the poor and others widened. there were depressions from 1629-32 and from 1636 to about 1640, which called for royal proclamations for the relief and distress, especially among the poor. the book of orders, for the relief of distress in earlier reigns, was to be reissued. the assize of beer and bread maintaining quality, prices, weights, and measures, was to be duly kept. hoarding of foodstuffs was to be punished. fish days and lent were to be observed to maintain the fishers. abstaining from suppers on fridays and on the eves of feasts was ordered in all taverns and commended to private families. city corporations were to give up their usual feasts and half the charge given to the poor. foreign ships were not to be supplied with food for long voyages. the revised book of orders also covered the regulation of beggary, the binding of apprentices, and the general relief of the poor. all magistrates were to enforce the rules and raise special rates from all parishes, the richer of these to help the poorer. a new trend of spring-sown crops led to better crop balance and reduced the risks of scarcity in a bad year. but the economy was still volatile. there were riots in london in 1640-1 from a complete breakdown in political consensus, the factions being the royalist city elite versus the middling and lesser merchants and craftsmen. in 1631, the clock makers broke away from the control of the blacksmiths. the gunmakers also broke away from the blacksmiths. the tinplate workers broke away from the ironmongers. "searching" for bad cloth became more difficult as the industry became more diversified. for instance, a new machine called a gigmill did the work of many hand finishers. in 1633, charles issued a commission for the reformation of the cloth industry with minute directions for the manufacture of cloth. but there were many disagreements over the details of manufacture and reform was difficult to enforce. by the 1630s, many parishes had a resident intellectual for the first time. the parish priests came from gentry, upper yeomanry, urban tradesmen and clerical families. they were educated and highly learned. they had libraries and were in touch with contemporary religious debates. they saw their role primarily as pastoral care. many wanted to improve the religious knowledge and moral conduct of their parishioners. puritan influence deepened as they forbade dancing, games, minstrels, and festivals. they punished superstitious conduct. they initiated prosecutions in church courts for sexual lapses and drunkenness. the church court had little coercive power and its punishments were restricted to penance or excommunication. many puritan sects espoused equality for women. by the 1640s women were preachers, e.g. in the baptist and anabaptist religions and, until 1660, prophetesses. these sects were mostly composed of the lower echelons of society. the poor people did not respond to sermons as did the well-to-do. nor were they as involved in church activity, attending church only for marriages, baptisms, and funerals. charles i not only believed in the divine right of kings and was authoritarian; he was the ultimate autocrat. he had an unalterable conviction that he was superior to other men, who were insignificant and privileged to revolve around him. he issued directives to reverse jury verdicts. parliamentarians oliver cromwell and other educated men opposed this view. the commons voted not to grant charles the usual custom-dues for life, making it instead renewable each year, conditioned on the king's behavior. charles dissolved parliament before this passed. he continued to take tonnage and poundage. he wanted money for war so he imposed many taxes, but without the consent of parliament. they included many of which had fallen into disuse. he imposed a compulsory "loan" on private individuals, which the courts held was illegal, and imprisoned those who refused. bail was denied to these men. simpler people who refused were threatened with impressment into the navy, which included being landed on shore to fight as marines and soldiers. they sought to revive the old writ of habeas corpus [produce the body] to get released, but to no avail. the old writ had been just to bring to court those persons needed for proceedings, but coke in 1614 had cited the writ with a new meaning "to have the body together with the cause of detention". charles billeted unpaid and unruly soldiers in private homes, which they plundered. it was customary to quarter them in inns and public houses at royal expense. martial law was declared and soldiers were executed. but the citizens did not want martial law either. the magna carta was now seen as a protector of basic liberties. both attorneys and laymen read "the pastyme of people" written by john rastell in 1529, which described the history of the magna carta from 1215 to 1225. also read was the "great abridgment" of the english law written by rastell in 1527, and coke's volume of his institutes which dealt with the magna carta, which the crown took to prevent being published until 1642, when parliament allowed it. broad-scale pamphleteering turned england into a school of political discussion. oxford university favored the established church and cambridge university was puritan. the estates of the members of the house of commons were three times the extent of the members' of the house of lords. bishops' estates had diminished considerably because of secularization. the members of the house of commons were elected [chosen] by the people. for these reasons, the house of commons asserted a preeminence to the house of lords. the house of commons drew up a petition of right in 1627, which expanded upon the principles of magna carta and sought to fix definite bounds between royal power and the power of the law. it protested the loans compelled under pain of imprisonment and stated that no tax or the like should be exacted without the common consent of parliament. it quoted previous law that "...no freeman may be taken or imprisoned, or be disseised of his freeholds or liberties, or his free customs, or be outlawed or exiled; or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land" and that "...no man of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned nor disinherited, nor put to death without being brought to answer by due process of law". it continued that "... divers of your subjects have of late been imprisoned without any cause showed; and when for their deliverance they were brought before your justices by your majesty's writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your majesty's special command, signified by the lords of your privy council, and yet were returned back to several prisons, without being charged with anything to which they might make answer according to the law." it also protested the billeting of soldiers in private houses and martial law trying soldiers and sailors. if these terms were agreed to by the king, he was to be given a good sum of money. since he needed the money, he yielded. he expected tonnage and poundage for the navy for life, as was the custom. but he got it only for one year, to be renewable yearly. the king agreed to the petition, quietly putting his narrow interpretation on it, and it was put into the statute book. in 1629 parliament distinguished between treason to the king and treason to the commonwealth. the chief justice held in 1638 that acts of parliament to take away the king's royal power in the defense of his kingdom were void; the king may command his subjects, their persons, their goods, and their money and acts of parliament make no difference. but the people refused to pay these taxes. charles thought of more ways to obtain money and disregarded his agreement to the petition of right. without the consent of parliament, he extended ship money to all the kingdom instead of just the ports. it was used to outfit ships for the protection of the coasts. hampden refused to pay it on principle and the courts ruled against him in the case of king v. john hampden and he was sent to prison. when distraints were tried, the common people used violence to prevent them. the bailiffs were pelted with rocks when they came to distrain. one man used his pitchfork to take back his steer being taken by the bailiff. if distraint were successful, people would refuse to buy the distrained property of their neighbors. charles revived the right of the crown to force knighthood on the landed gentry for a fee. charles sold monopolies in such goods as soap, leather, salt, wine, coal, and linen rags although they had been abolished in the last parliament of james. this made employment uncertain for workers and prices high for the public, and put masters in danger of loss of capital. fines were levied on people for the redress of defects in their title deeds. crown forest boundaries were arbitrarily extended and landowners near crown forests were heavily fined for their encroachments on them. money was extorted from london by an illegal proclamation by which every house had to pay three years' rental to the crown to save itself from demolition. but what incensed the people more than the money issue were the changes in the established church. high churchmen, called ritualists, enforced ceremonies offensive to puritan feeling in every parish. the centrally placed communion tables were to be placed at the east end within railings and called "altars", or "mercy seats" as if for mass. they were to be ornamented with crucifixes, images, pretty trifles, books, candles and rich tapestries. bowing was to be done when approaching them. clergymen were to be called "priests" and their authority treated as divine. worship was to be done in accordance with the prescribed forms of romish breviars, rituals, and mass-books. its ritual was to have pomp and ceremony, including kneeling for communion. rings were to be used in marriages and crosses used in baptisms. churches, fonts, tables, pulpits, chalices and the like were to be consecrated, thereby putting holiness in them. churches that did not do this but used unconsecrated or "polluted" articles were closed by interdiction. regard was to be had with regard to days, postures, meats, and vestments. the clergy was to wear supplices [white linen vestments flowing to the foot with lawn sleeves] and embroidered copes [vestment over the head]. a bishop wore a four-cornered cap, cope and surplice with lawn-sleeves, tippet (long, black scarf), hood, and canonical coat. churchwardens were to take oaths to inform against any who disobeyed. the law still required that all attend sunday sermons. but parishes had some control over who was their preacher, even though a minister could be assigned to a parish by the bishops without the consent of the patron of the church or parish people. by increasing the meager pay of a parish clergyman, they could chose one with a compatible theology or employ a lecturer from outside. the ritualists scolded clergymen for "gospel preaching" and suppressed puritan preaching in public meetings. preaching or printing matter concerning the controversy of free will versus predestination was forbidden. geneva bibles, which were popular among laymen, were prohibited from being imported. many were excommunicated for sitting instead of kneeling at communion. the clergy prohibited marriage if they liked by withholding their license, and they licensed marriages without banns. the ritualists encouraged certain sports to be played after church on sunday. the puritans protested vehemently to this because they wanted to strictly observe the sabbath. the puritans saw the high churchmen as wanting to return to the doctrine and customs they thought to be papist. the ritualists were absolutists in their political views and accepted the king's intervention in church matters. the ecclesiastical court of high commission enforced the edicts of the church, excommunicating those who did not conform and expelling clergymen who, for instance, did not bow at the name of jesus or wear the surplice. it was used against the puritans and imposed high fines and imprisonment for religious eccentricity and puritan preaching. charles supported the established church in this endeavor because it agreed that he had a divine right to rule. the universities and high churchmen were beginning to adopt the doctrine of free will over predestination. parliamentarian and puritan oliver cromwell and others feared this presaged a return to justification by works and the popish faith. in parliament, he spoke out against the tyranny of the bishops, whose offices he wanted abolished, and the elaborateness of church services. to avoid persecution, many puritans emigrated to virginia and new england. they were led by magistrates, country gentlemen, prominent businessmen, attorneys, and other professionals. in 1629, the massachusetts bay colony was chartered at the instigation of john winthrop as a puritan refuge. its leaders led a migration of puritans organized to include five each of armorers, bakers, blacksmiths, carpenters, shoemakers, merchants; three each of clothiers, chandlers, coopers, military officers, physicians, and tailors; two each of fishermen, herdsmen, and masons; on tanner, and one weaver. the fare was five pounds and an applicant was interviewed to make sure he was a puritan. he got 50 acres, or more for a larger family. but if he paid 50 pounds into the common stock he received 200 acres of land, plus 50 more for each dependent. maryland was founded in 1632 as a haven for catholics, but its charter precluded a government-established religion. it was granted to lord baltimore to hold in free socage and was named after king james ii's queen, who was overtly catholic. catholics in england could practice their religion only in their homes and could not carry arms. as hostility grew, censorship of books and plays accelerated and the number of authorized printers was reduced in 1637 by decree of the star chamber. in 1640s effective government control of the press collapsed. then there were many pamphlets and newspapers with all variety of interpretation of the bible and all sorts of political opinion, such as on taxation, law and the liberties of the subject, religion, land and trade, and authority and property. twenty-two pamphlets were published in 1640 and 1,996 in 1642. in 1640 the canons of the church included a requirement for parsons to exclaim divine right of kings every year. the commons soon resolved that this was contrary to the fundamental laws and liberties of the realm. the short parliament of 1640 was dissolved soon because the commons demanded redress of its grievances. the long parliament of 1640-1653 requested by the house of lords was agreed to by charles because he still wanted money. in election of members to the long parliament, voters wanted to know where contenders stood on certain political issues. in this parliament, the commons ceased to agree on all issues and started to rely on majority rule. the house of commons was led by john pym, a middle class landholder with extensive commercial interests. the commons treated the king's refusal to act with them as a relinquishment of his power to parliament. when it met at the long parliament, pym expressed the grievances of the king's actions against the privileges of parliament, against religion, and against the liberties of the subjects. specifically, he decried the disregard of free speech and of freedom from prosecution afterward, and the arbitrary dissolution of parliament. secondly, he alleged popery had been encouraged and the ecclesiastical jurisdiction enlarged. thirdly, he protested the patent monopolies given to favorites to the detriment of the buying public, the imposition of ship money levies beyond the need of national defense and without the consent of parliament, the revival of the feudal practice of imposing a fine for refusal to accept a knighthood with its attendant obligations, the enlargement of the king's forests and driving out from hence tenants with lucrative holdings, extra judicial declarations of justices without hearing of counsel or argument in many criminal matters, and the abuses of the prerogative courts in defending monopolies. parliament's assertion into religious matters and foreign affairs was unprecedented, those areas having been exclusively in the power of the king. the long parliament begun in 1640 removed many of the king's ministers and forbade clergy from sitting in parliament or exercising any temporal authority. it passed measures which were not agreed to by the king. it undid the lawless acts of the king and the court decision in the case of king v. hampden. ship money was declared illegal. the new concept that the present parliament should not be dissolved but by its own consent was adopted. the star chamber and court of high commission were abolished. the oath ex officio, an oath to answer all questions, was originally meant for facts at issue, but had been extended by these courts to opinions, beliefs, and religion and had led to abuses. the star chamber had been the only court which punished infractions of the kings' edicts, so now his proclamations were unenforceable. protection against self-incrimination was given by the provision that no person be forced "to confess or accuse him or herself of crime, offense, delinquency, or misdemeanor, or any neglect... or thing whereby, or by reason whereof, he or she shall or may be liable or exposed to any censure, pain, penalty, or punishment whatsoever, as had been the practice in the star chamber and the court of high commission. these measures were also adopted: no one may be compelled to take knighthood nor undergo any fine for not so doing. the forest boundaries are returned to their former place. all subjects may now import gunpowder; they may also make and sell gunpowder and import saltpeter. the root and branch petition of 1640 complained about pressure on ministers by bishops on threat of dismissal not to preach about predestination, free grace, perseverance, original sin remaining after baptism, the sabbath, doctrine against universal grace, election for faith foreseen, free-will against anti-christ, nonresidents, or human inventions in god's worship. it also complained about the great increase of idle, lewd, and dissolute, ignorant and erroneous men in the ministry who wanted only to wear a canonical coat, a surplice, and a hood, bow at the name of jesus, and be zealous of superstitious ceremonies. it also complained about the swarming of lascivious, idle, and unprofitable books, pamphlets, play-books, and ballads, such as ovid's "fits of love", "the parliament of women", barn's "poems", and parker's "ballads". further it opposed the restraint of reprinting books formerly licensed without relicensing. it protested the growth of popery and increase of priests and jesuits, the strict observance of saints' days whereby large fines were imposed on people working on them, the increase of whoredoms and adulteries because of the bishops' corrupt administration of justice and taking of bribes, and the practice of excommunicating for trivial matters such as working on a holy day or not paying a fee. it further protested the fining and imprisoning of many people; breaking up men's houses and studies; taking away men's books, letters, and writings; seizing upon their estates; removing them from their callings; and separating them from their wives, to the utter infringement of the laws and of people's liberties. it complained that these practices caused many clothiers, merchants, and others to flee to holland, thus undermining the wool industry. it finally complained of the multitude of monopolies and patents, large increase of customs, and ship-money. many londoners signed this petition. the house of commons decided to forbid bowing at the name of jesus. when the house of lords disagreed with this, the house of commons claimed that it represented all the people and didn't need the concurrence of the house of lords. the house of commons ordered that all communion tables be removed from the east end of churches, that the railings be taken away, and all candles and basins be removed from it. further, all crucifixes, images of the virgin mary, and pictures of any of the trinity were to be demolished, which was done to even those in markets and streets. further, all bowing at the name of jesus or toward the east end of the church or toward the communion table was forbidden. all dancing or other sports on sunday was forbidden. enforcement was to be done by justices of the peace and mayors. but these orders never became statutes. enforcement of the law for not coming to church was not now regularly enforced, so catholics had a respite. rebellion of irish catholics against england and english protestants broke out in ireland in 1641. parliament didn't trust the king with an army that he could use against themselves so it passed the following two measures expanding the navy and calling out the militia and naming certain persons to be lieutenants of each county. the admiral shall impress as many seamen as necessary for the defense of the realm. this includes mariners, sailors, watermen, ship carpenters, but no one over the age of 50 or masters or masters' mates. if one hides, he shall be imprisoned for three months without bail. justices of the peace shall impress as many soldiers as the king may order for war in ireland. this is despite the right of a citizen to be free from being compelled to go out of his county to be a soldier because the danger from ireland is imminent. excluded are clergymen, scholars, students, those rated at a subsidy of land of three pounds or goods of five pounds, esquires or above, the sons of such or their widows, those under eighteen or over sixty years of age, mariners, seamen, and fishermen. the penalty for disobeying is imprisonment, without bail or misprise, and a fine of ten pounds. if an offender can't pay the fine, he shall be imprisoned a year more, without bail or misprise. the right to call out the county militia had been a prerogative of the crown, so the king issued a proclamation ordering the soldiers to ignore this order and obey him. so parliament declared this proclamation void. the king accused five leaders of parliament, including pym, of trying to subvert the government of the kingdom, to deprive the king of his regal power, to alienate the affections of the people toward their king, forcing the parliament to their ends by foul aspersions, and inviting the scots to invade england. in 1642, the king entered parliament with 300 soldiers to arrest these five. they had flown, but parliament was shocked that the king had threatened the liberties of parliament with military force. the citizens of london, in their fear of popery, rose in arms against the king, who left the city. both sides raised big armies. the goal of the parliamentarians was to capture the king alive and force him to concessions. when the parliamentarians took oxford in 1648, they purged its faculty of royalists. the law >from 1625 to 1627 these statutes were passed: no one shall engage in sports or any pastimes outside his own parish or bearbaiting, bullbaiting, interludes, plays or other unlawful pastimes inside his parish on sundays because such has led to quarrels and bloodshed and nonattendance at church. the fine is 3s.4d. or if the offender does not have the money or goods to sell to pay, he shall be set in the public stocks for three hours. no carrier with any horse or wagon or cart or drover with cattle may travel on sunday or else forfeit 20s. no butcher may kill or sell any victual on sunday or else forfeit 6s.8d. every innkeeper, alehousekeeper, and other victualer permitting a patron who is not an inhabitant of the area to become drunk shall forfeit 5s. or be place in the stocks for six hours. offenders convicted a second time shall be bound by two sureties to the sum of 200s. as of 1627, a parent sending a child out of the country to go to a catholic school was to forfeit 100 pounds, one half to the informer and one half to the king. the petition of right herebefore described was passed as a statute in 1627. judicial procedure the star chamber decided cases as diverse as a case of subordination of witnesses, cases of counterfeiters of farthing tokens, and cases of apothecaries compounding ill medicines. it tried to keep down the prices of foodstuffs for the benefit of the poor; it repressed extortion and false accusations, and disbarred an attorney for sharp practices; it punished defamation, fraud, riots, forgery of wills; it forbade duels. a special virtue of its position was that it could handle without fear matters in which men of social or local influence might intimidate or overawe juries or even country justices. it punished a lord who caused records to be forged, unlawfully entered lands, and seized tithes. it disciplined a nobleman for drawing a sword on a lord hunting hare. in one of its cases, sir edward bullock, a knight wanting to enclose a common of a thousand acres threatened his neighbor blackhall when he would not sell his lands and rights. the knight hired a man to break down the hedges and open a gate that had been staked up, so that his neighbor's cattle would stray. he sued his neighbor three times for trespass, lost his cases, and threatened revenge on all the witnesses who testified against him. he had the house of one pulled down. the pregnant wife and a naked child were turned out and had to lie in the streets because no one dared to take them in, even when a justice so directed. the witness, his wife, and family took refuge in an unheated outbuilding in the winter. he and his wife and one child died there. the knight had another witness cudgeled so that she was black and blue from the waist up, and could not put on her clothes for a month. the knight threatened to set fire to the house of another witness, and sent his men to pull him out of doors and keep him prisoner for some hours. the star chamber imprisoned the knight and his men. the knight was fined 1,000 pounds and the men 50 pounds each. the knight also had to pay one witness 100 pounds in reparation to the surviving children of the family whose house had been pulled down. but the power of the star chamber was abused by king charles i. for instance, one lord was accused by another of calling him a base lord. the evidence was paltry. but he was fined 8,000 pounds, one-half going to the king. a lord who was accused of converting agricultural land to pasture was fined 4,000 pounds. a person who exported fuller's earth, contrary to the king's proclamation, was pilloried and fined 2,000 pounds. a man who defaced a stained-glass window in a church was fined 500 pounds and ordered to pay for a plain glass replacement. a man who became sheriff of a county and had taken the oath which bound him to remain in the county was elected to parliament and stood in opposition to the king on many matters. he was imprisoned for many years until he made a humble submission and had to pay a heavy fine. a london importer who was alleged to have said "that the merchants are in no part of the world so screwed and wrung as in england; that in turkey they have more encouragement" was fined 2,000 pounds for seditious and slanderous words against his majesty's happy government. a scottish minister circulated a book appealing to parliament to turn out the bishops and to resist its own dissolution by the king. in it he called the bishops men of blood, anti-christian, satanical, ravens, and magpies, preying on the state. he was against kneeling at the sacrament and denounced the queen for her catholic religion. he blamed the state for the death of citizens of a certain town by famine. for as he did "scandalize his majesties sacred person, his religious, wise, and just government, the person of his royal consort the queen, the persons of the lords and peers of this realm, especially the reverend bishops", he was fined 10,000 pounds, was to be unfrocked (which was done by the court of high commission), and was whipped, pilloried, one ear nailed to the pillory and cut off, his cheek branded, and his nose slit. then he was imprisoned for life, but only served ten years, being released by a statute of the long parliament. a puritan writer pyrnne wrote a book that included a condemnation of masks and plays, and all who took part, and all who looked on as sinful, pernicious, and unlawful. it opined that nero had attended plays and deserved to be murdered. since charles had attended plays and the queen had taken part in a mask, it was inferred that pyrnne meant them harm. his indictment alleged that "he hath presumed to cast aspersions upon the king, the queen, and the commonwealth, and endeavored to infuse an opinion onto the people that it is lawful to lay violent hands upon princes that are either actors, favorers, or spectators of stage plays". the justices saw in the book an attempt to undermine authority. the chief justice called the book a most wicked, infamous, scandalous, and seditious libel. pyrnne was sentenced to be degraded by oxford and disbarred by lincoln's inn, to be fined 5,000 pounds, to be pilloried and to have his ears cut off, and then to be imprisoned for life. three men who wrote attacks on the bishops and ecclesiastical courts, such as alleging that the bishops suppression of fasts and preaching had brought the pestilence upon the people and that the bishops had dishonored god and exercised papal jurisdiction in their own names, were each sentenced to 5,000 fine, the pillory, where their ears were cut off, and to life imprisonment. one, who had been convicted for libel before, was branded on both cheeks: "s.l." for seditious libeller. others printed similar material. in vain the star chamber limited the number of london printers to twenty, and made licensing stricter. these prisoners were set free by the long parliament. charles i intimidated justices to obey him in decision-making even more than james i. charles i so abused the power of the star chamber court that it was abolished by the long parliament and with it, the involvement of the king's council in civil and criminal cases. the regular church courts punished people for heresy, nonattendance at church, sexual immorality, working on the sabbath or a holy day, non-payment of tithes, and lending money at interest. the special ecclesiastical court, the court of high commission, was composed of clerics appointed by the king and decided cases of marriage annulment, alimony, adultery, married couples living separately, cruelty of husbands to wives, and habitual drunkenness. but it also took on cases of schismatics and extended its power over them to include staid and solid puritans, who uniformly believed that salvation was the only worthy earthly aim. acting on information attained through secret channels or from visitations, it would summon the accused, who was required to give, under oath, "full, true, and perfect" answers to broad and undetailed charges made by secret informants. refusal to take the oath resulted in commitment for contempt of court. if he denied the charges and fled, the court could hold the hearing without him. many fled out of the country or went into hiding in it. if the accused went to the hearing, he could not take an attorney with him. most of the issues involved clergy refusing to use the litany, to make the sign of the cross in baptism, to wear the surplice, or to publish the book of sports, and insistence on extempore prayer and preaching. other issues were clergy who from the pulpit inveighed against ship-money and unjust taxes, and spoke rudely against the bishops and tyrannical princes. one case is that of samuel ward, the town preacher of a large town, heard in 1635. he neglected bowing or kneeling on coming to his seat in church and preached against the book of sports. he did not read the set prayers from the official book, but said prayers he had himself conceived. to this he replied that a parrot could be taught to repeat forms and an ape to imitate gestures. but his most serious offenses had to do with his utterances from the pulpit derogatory to the tenets and discipline of the church. he was accused of saying that he believed that congregations still had the right of election of all officers, including ministers. also, he allegedly said that in preaching on the christmas holidays he told his people "that in the following days they might do their ordinary business, intending to cross that vulgar superstitious belief, that whoever works on any of those twelve days shall be lousy". he allegedly warned his people to beware of a relapse into popery. ward was convicted of depraving the liturgy, tending toward schism, frightening the people, and encouraging the overthrow of all manner of government. he was removed from his position, deprived of his ministerial function, suspended and silenced during the king's pleasure. he was ordered to make submission and recantation both in court and in his church and to give bond for 200 pounds. when he did not do this, he was sent to prison and lay there nearly four years, and died a few months later. in another case, a mrs. traske was imprisoned for at least eleven years for keeping saturday as her sabbath. many people were excommunicated and books censored for essentially political reasons. in 1637, the king proclaimed that the common law courts could not intervene in ecclesiastical courts. the court of high commission was abolished by the long parliament. justices of the peace had general and quarter sessions, the latter of which were held four times a year with all justices of the peace attending. it was primarily a court of appeal from penal sentences. but it was also an administrative body to determine taxes and make appointments of officials and grant licenses for businesses. in 1638, in distributing a deceased person's estate, the chancery court upheld a trust designed to hold the property for an heiress so that it did not become her husband's property. at the request of parliament, the king had all justices serve during their good behavior instead of serving at the king's will, which had been the practice for ages. this increased the independence of the judiciary. the rack was used for the last time in 1640 before the long parliament met. it was used to torture a rioter before hanging. men were still pressed to death for failure to plead, pickpockets still executed for the first offense, and husband murderers still burned. chapter 16 the times: 1642-1660 for four years, there was civil war between the king, backed generally by the upper class, the established church, and most of the gentry, against the parliamentarians, backed generally by middle class yeomen, town dwellers, some of the gentry, most of the great corporations, the city of london, the ports, the seamen, and the navy. oxford university was royalist, and cambridge university was puritan in sympathy. archery was not used, having become just sport by 1633. flint-lock pistols, which relied on flint striking steel to ignite the powder, as well as swords were used by horsemen in the civil war. footmen were musketeers using a match lock with a cord boiled in vinegar as the match and dressed in leather doublets and an iron-pot headpiece, or pikemen with long wooden poles with spearheads of iron or steel and short swords, and dressed in armor. this was the last time armor was used. the parliamentarians wore orange scarves to distinguish themselves from their enemy. cromwell, who had a natural aptitude for military matters, selected for his troops, puritan zealots with a puritan code of behavior which included no drinking or swearing. he selected horsemen based on ability rather than social class. he was regarded as one of the leaders of the independents, who wanted total abolition of the monarchy and of the aristocracy. when made a leader of the new model army, cromwell dressed all his foot men in red with only the facings being regimental colors. the new model army had been assembled because there had been disagreement about policy among the members of parliament who held commissions. almost all members gave up their commissions. for their continued support, many wives and also prostitutes put on men's clothing and followed the troops. they nursed the wounded. those many wives who stayed at home pleaded and answered in court; petitioned to the house of commons, e.g. for release of debtors from prison, high taxes, lack of work, and arbitrary government; and made other public appearances. puritan and royalist newspapers printed the news at least once weekly. poet john milton pled for civil and religious freedom, freedom of social life, and freedom of the press. he stated: "give me the liberty to know, to utter, and to argue freely, according to conscience, above all liberties." the mayor and citizens of london were given authority in 1642 to fortify all highways leading to the city and levy a tax on inhabitants for this purpose. when london was deprived of coal during the war, trees and flowers again flourished there. officers and seamen in navy ships were authorized in 1642 to take one-third of all prize goods captured, the other two-thirds going to the state. parliament approved certain persons to set forth ships at their own expense to defend the realm in 1643. they were allowed to keep any ships, goods, ammunition, or moneys they seized. saltpeter men were appointed by parliament in 1643 and later times to search and dig for saltpeter in pigeon houses, stables, and outhouses, but not dwelling, shops, or milkhouses. they had to repair any damage done to the contentment of the owners. complaints were made to parliament that there were scandalous and ill-affected fomenters of the civil war and disobeyers of the ordinaries of parliament and deserters of their ordinary places of residence. these complaints were made by members of the university of cambridge, students, clergy in surrounding counties, and schoolmasters. so a committee was established in 1643 to investigate and sequester their lands and goods, excepting onefifth of the estate for the wife and children. when charles was captured in 1646, the episcopacy of the bishops was abolished. when parliament was about to reinstate charles as king with weakened powers and establish a presbyterian state church, the soldiers, who were religious independents and who still had not been fully paid (the infantry pay was 18 weeks in arrears and the cavalry 43 weeks) despite plans to disband them, spontaneously took the king by force. they demanded liberty of conscience to practice their own religion and their pay. cromwell sided with the army and then became leader of the house of commons. charles dissembled in his negotiations with the army generals. he felt freed from his promises as soon as the pressure was removed. the army could not forgive charles' duplicity and deceitfulness and insisted upon his death as the only way to bring peace. cromwell gave up hope on negotiations with charles when he intercepted a letter by charles to his queen decreeing the final doom of the army adherents in favor of the scottish presbyterians. during protracted negotiations over months between the army and parliament over a new constitution, a renewed support for the king, which was inspired by him, necessitated a second civil war to put down this revolt and subdue its scot supporters. eventually the army took control of parliament by force, only allowing the few members who agreed with them on the trial of the king into parliamentary meetings. so charles was tried in 1649, found guilty of "an unlimited and tyrannical power to rule according to his will, and to overthrow the rights and liberties of the people ... which by the fundamental constitutions of this kingdom were reserved on the peoples' behalf in the right and power of frequent and successive parliaments or national meetings in council", and maintaining a war against his subjects, which amounted to treason. to prevent his adherents from trying to reinstate him, he was condemned to death and beheaded in january 1649. parishes had to give maintenance to maimed soldiers and provision for the livelihood to the wives and children of killed soldiers. masters of apprentices who became soldiers had to take them back as apprentices without loss for their absence in defense of the commonwealth. masters who received considerable loss by the absence of their apprentices received reasonable satisfaction from the public stock. to pay for the civil war, an assessment tax on the yearly value of rents, annuities, and offices was often levied. the main burden of this tax fell on the gentry rather than the merchants and smaller men of property, as previous taxes had. an excise tax, a tax on consumption, was begun on ale and beer and then extended to meat, salt, starch, soap, and paper. it was gradually extended to many goods. the excise taxes were paid, as was the customs tax, by manufacturers on goods made in england and by foreign manufacturers on goods at the ports. >from 1640-60, royalists were purged from oxford and a group of baconians moved into the university behind parliamentary armies. at the two universities, books were no longer chained to the bookcases. the universities were freed from taxation. after the civil wars, cromwell led the country. he was a military, political, and religious leader. he had become a puritan zealot after a youth of gambling, drinking, debauchery, and rioting. he believed that military success was a reflection of divine favor and he regarded himself as one the few elect preordained for salvation. those in power in the new commonwealth tended to explain their regime in terms of popular consent, and the takeover from charles i as due to his breaking of a contract with the people. most people dressed in puritan fashion. a puritan's favorite readings were the old testament, epistles of st. paul, and writings of john calvin. wealth and prosperity steadily increased in spite of the civil wars. during cromwell's tenure, there was a marked revival of economic prosperity. by the mid-1600s, landlords had been able to shorten their leases so that a lease of twenty-one years was the predominant form of landholding. patent protection was given in 1642 for seven years to the inventors of a device for salvaging ships' goods and cannons from the seas. with it they could convert to their own use one half of the items retrieved, the other half going to the navy and parliament. patent protection was given in 1650 to george manby on his new invention for boiling liquors and making salt with less coal and wood and iron, lead, and copper for fourteen years. patent protection was given in 1651 for fourteen years to jeromy buck for melting iron, lead, tin, copper, brass, and other metals with coal without burning charcoal. dutchman stevinus showed that the pressure at the bottom of a column of liquid is proportional to the height of the column, and not to its bulk, about 1634. he also studied oblique forces, and the balancing of such that could bring about "stable equilibrium". evangelista torricelli, an italian student of galileo, discovered in 1643 that any fluid will be supported at a definite height, according to its relative weight, as compared with air. he realized that a mercury column, 30 inches in height, in a long glass tube inverted in a cup of mercury, was being supported by air pressure exerted on the mercury in the cup. when he observed that this height changed with the weather, he had invented the mercury barometer. in his work, he created and used vacuums. blaise pascal, a french mathematician, physicist, and religious philosopher, was a child prodigy. at the age of 12, he proved euclid's 32nd theorem that the sum of the angles of a triangle is equal to two right angles. before age 16, he wrote a book on conic sections. he is famous for his theorem that a hexagon inscribed in a conic section has the property that the three meeting points of the opposed sides are always in a straight line. he constructed a calculator, which could handle nine-digit numbers, in 1644 to assist his father, also a gifted mathematician, in tax computations he did as a local government official. he had torricelli's mercury barometer carried up a mountain and found that the height of the column dropped as altitude increased, and thus that air pressure decreased with altitude. this showed that the attribution of these effects to nature's abhorrence of a vacuum were due instead solely to the weight and pressure of air. he determined that the height to which the mercury rose was the same regardless of the shape of the vessel containing it. around 1646, he did experiments with double vacuums and on the results formulated his principle that pressure applied to a confined liquid is transmitted undiminished through the liquid in all directions regardless of the area to which the pressure is applied. around 1653, he laid the foundations for the theory of probabilities after being asked by a gambling friend why, in playing dice, some frequencies came up more often than others. he developed a means of calculating probabilities with his "pascal's triangle" of coefficients of (a+b) raised to the nth power. each row represents the coefficients of a power one greater than the power of the previous row. each number is the sum of the nearest two numbers in the row above it. jean ray from france concluded from his experiments that every piece of material has a given weight, including air and fire. otto von guericke from germany discovered that, in a vacuum, sound does not travel, fire is extinguished, and animals stop breathing. at a time when mathematics was only a business of traders, merchants, seamen, carpenters, and surveyors, mathematician john wallis, the son of a minister, studied sections of cones [circles, ellipses, parabola, and hyperbolas] as curves of the second algebraic degree, i.e. with an exponent of two, i.e. y = (a (x squared)) + b. he also worked with negative and fractional exponents. around 1655 he invented the infinite arithmetic and introduced the symbol for infinity. he determined that the area under any curve defined by the equation y = (x to the nth power), was x to the (n+1)th power divided by n+1. he introduced the concept of the limit of a string of numbers. he wrote a treatise on algebra which was historical as well as practical. he also decoded enemy cyphers for the sovereign. some english gentlemen interested in the new scientific methods originated by galileo had meetings beginning about 1645 to discuss scientific topics. one group met at gresham college and was headed by wallis. another group was led by robert boyle, a philosopher, physicist, and chemist. they wrote in english instead of latin. these meetings later gave rise to the royal society for science. the merchant adventurers were incorporated again in 1643 to have a monopoly. it was required to admit into membership for 100 pounds anyone free of london and bred as a merchant, and for 50 pounds any non-inhabitant of london. the penalty for trading for one who was not free of the corporation was forfeiture of his goods. in 1648, the house of commons abolished the monarchy and in 1649 the house of lords. also in 1649 it declared that england "should thenceforth be governed as a commonwealth and free state by the supreme authority of this nation, the representatives of the people in parliament." it made a new constitution. john milton defended the commonwealth as superior to the monarchy because it could not deteriorate into tyranny in his books: "first defense of the people of england" in 1651, and "second defense" in 1654. he lauded cromwell as great in war and great in peace, and exemplifying the principle that "nature appoints that wise men should govern fools". thomas hobbes, the son of a clergyman, and tutor to students, wrote "leviathan" in 1651 on his theory of sovereignty. hobbes thought that states are formed as the only alternative to anarchy, barbarism, and war, so that supremacy and unity of a sovereign power is essential to a civilized life and the protection of the citizenry. a sovereign may be a man or body of men as long as his or its authority is generally recognized. there must be a social contract among the citizenry to obey a certain sovereign. to avoid religious conflict, there must be a complete subordination of the church to the state and the religion of a state must be dependent upon its secular sovereign. hobbes thought that knowledge of the world came through experience and not reason alone. only matter exists, and everything that happens can be predicted in accordance with exact, scientific laws. he regarded human societies as purely mechanical systems set in motion by human desires. he saw self interest as the mainspring of moral law. conflicting self interests transformed into a lawful system of agreements. hobbes opined that all power really originated in the people and that the end of all power was for the people's good. on the other hand, james harrington, who wrote "the commonwealth of oceana" in 1656, opined that a stable society depended on a direct relationship between the distribution of property and political power; no one with property worth more than 2,000 pounds should be allowed to acquire more and property should be divided among children. a senate of mature property owners were to make and debate the laws while an assembly elected by universal suffrage was to vote on them because "a popular assembly without a senate cannot be wise and a senate without a popular assembly will not be honest". a third of the senate would turn over every year. john milton defended the execution of the king in "the tenure of kings and magistrates" in which he maintained that the people may "as often as they shall judge it for the best either to choose him or reject him or depose him, though no tyrant, merely by the liberty and right of freeborn men to be governed as seems to the best". he also wrote in favor of liberty of the press. ordinary speech found its way into prose writing. lands of more than 700 royalists, including church lands, were confiscated and sold or leased by county committees. many royalists put their lands into trusts or turned them over to relatives or sold them outright to prevent confiscation. it was an upheaval comparable to the dissolution of the monasteries. also, specified papists who had taken up arms against the realm lost their lands, goods, money, rents, and two-thirds of their personal estates. but allowance was made for the maintenance of their wives and children. the book of common prayer was abolished because of its burdensome ceremonies. it was replaced by a directory for public worship. according to this, the sunday service was to include reading of the scriptures, prayer, and a sermon, ordinarily on some text of scripture which would be explained with reasons therefore and applied to peoples' lives so they could see it they had sinned or not. the ending of episcopal patronage gave some parishes the right to elect their own ministers. all festivals and holy days were abolished, e.g. christmas, easter, whitsuntide. instead, scholars, apprentices, and servants were to have recreation and stores were to be closed every second tuesday of the month. the usual merry-making, music, dancing, and sports after the sunday service were discontinued. a day for fasting: the last wednesday of every month, was declared by statute. this day was to be "kept with the more solemn humiliation, because it may call to remembrance our sins, and the sins of our forefathers, who have turned this feast, pretending the memory of christ into an extreme forgetfulness of him, by giving liberty to carnal and sensual delights, being contrary to the life which christ himself led here upon earth, ...". this statute lasted for only five years from 1644 because observance of it was not consistent throughout the country. educational opportunities such as in grammar schools were more widespread and stronger than ever before or since until the 1800s. about 78% of men in london were literate, and 30% of men nationwide. about half the women in london were literate by 1700. in 1645, the marshalls of the admiralty and five major ports were ordered to search all ships for stolen children since it had been a problem in london. the elderships of the church were given power in 1645 to suspend from the sacrament of the lord's supper all ignorant and scandalous persons. ignorance was lack of knowledge that there is a god and this is the one true god we worship, that this god is one, yet three persons" father, son, and holy ghost, that god created man in his own image, that all have sinned and therefore shall die, that there is one mediator between god and man: jesus christ, who died on the cross to save men from their sins, that he rose from the dead, ascended into heaven, sits at the right hand of god, and intercedes for us, that christ and his benefits are applied only by faith, that the souls of the faithful live with christ in blessedness, that non-believers and non-repenters shall perish eternally, that the sacraments are baptism and communion, and that there is a judgment day on which the righteous will be given life eternal and the wicked shall receive everlasting punishment. scandalous persons are those who blasphemously speak or write anything of god, his holy work or the sacraments; an incestuous person; an adulterer; a fornicator; a drunkard; a profane swearer or cursor; a murderer; a worshipper of images, crosses, crucifixes, relics, saints, or angels; makers of images of the trinity; one who professes not to be in charity with his neighbor; any challenging another to fight or accepting such challenge; on the lord's day, dancing, dicing, cards, masking, wake, shooting, bowling, football, wrestling, plays, interludes, fencing, bullbaiting, bearbaiting, hawking, hunting, coursing, fishing, fowling, selling wares, travel without reasonable cause; a brothel-house keeper; one who solicits the chastity of another; one who marries a papist or consents to the marriage of his child to a papist; own who goes for advice to a witch, wizard, or fortune-teller; one who assaults his parents, or any magistrate, minister, or elder in the execution of his office; and one attainted of barratry, forgery, extortion, or bribery. if such a person persists, he shall be excommunicated. cromwell did not disapprove of activities prohibited because of the recreation they provided, but thought that they had become too central to people's lives. he did not close the taverns or ale houses. in 1653 it was required that public preachers be approved by a commission nominated by the lord protector and parliament because there had been too many "weak, scandalous, popish, and illaffected" ones. in 1654 named persons were ejected as scandalous, ignorant and insufficient ministers and schoolmasters. in 1649 a corporation was established to teach the gospel of jesus christ in new england to indians. because the poorer parishes of london were having problems supporting their poor, a corporation for the poor of london was established in 1647 with authority to erect workhouses and houses of correction. imprisoned debtors who had less than five pounds and less that five pounds worth of trade tools and clothing and bedding for his family were ordered released in 1649. wardship was abolished. military tenures were abolished. feudal tenures were converted into freehold in 1646. in 1653 those living in crown forest land were given free socage in that land. the game laws were not enforced, so people could eat deer. enclosures were increasing and parliament was disinclined to protect copyholders against enclosures, favoring those with rights of ownership. enclosure was no longer deterred especially after abolition of the star chamber. the legal device of "strict settlement" evolved to prevent heirs from breaking up estates enabled families to concentrate land and capital into large units. the oldest son inherited the land and the younger sons now received money. clover seed was sold in london by 1650. it revolutionized the cultivation of barren land. england began to export instead of import grain. but vagrancy increased from people dispossessed of land. and the village artisan, when deprived of his field and of this rights of common, could not continue to work at home, but had to accept the wages offered to him in an employer's workshop. employers and entrepreneurs were now free from control by the crown. there were no more attempts to supervise quality of manufactures or to fix prices or regulate wages. there was greater freedom established in relations between employers and workers. the government no longer tried to compel employers to keep employees in times of economic slump. the requirement of seven year apprenticeships and being the son of a freeholder to be an apprentice were not enforced. the economy was still volatile due ostensibly to variable harvests, amount of gold and money in circulation, and balances of trade, and to periods of plague. wages rose steadily. the rise in prices ended about 1650, and prices remained stable until about 1775. there was more mobility of people. taxation became regular and it was controlled by representatives of the taxpayers. population growth gradually stabilized. capitalism was coming into being. for instance, the clothier was now a manufacturer. he had become a contractor, taking wool to the specialist spinner, the yarn to the specialist weaver, the rough cloth to be washed and stretched, and finally to the dyer. this cloth was sold at retail by the drapers. tin on the surface was exhausted, so capital was used to drive deep shafts in tin mines. no longer did a single man with a single ship sail around until he found a market, but company trading overseas had their ships, wharves, and depots furnished by men's savings put into a common stock. the first major capitalist industries were coal mining, iron mining, and foreign trade because they all needed large investments, and thus joint-stock company organization. cromwell reconstituted the east india company on a wider and more permanent basis. he gave it a new charter in 1657 which included authority to make stock permanent, thus ensuring a continuity of capital. this solved the problem of the competition of overlapping voyages which still occurred despite their terms of several years. the company became one of the first permanent joint-stock companies. now the stock was never wound up. the company had permanent capital which could grow. the absence of competition among voyages made the company stronger in the face of a common enemy, such as a rival trading country or indian groups. the charter also authorized the company to fortify and colonize any of its establishments and to transport to them settlers, stores, and ammunition. later in 1657, the company threw open the freedom of the company to the public for a nominal sum of five pounds. now the merchant adventurers and private traders could participate. it provided that dividends were to be paid only in cash and not in kind (goods). it also provided for appraisals of the company's property to be made every three years, so any shareholders could redeem their shares proportionately. his shares would then be resold. people began to buy and sell their shares among each other. the company made the minimum subscription 100 pounds. each person holding 500 pounds worth of shares had one vote. holding 1,000 pounds worth of shares qualified one for election to the committee of twenty-four. the seats of the members of this committee and of the governor and deputy governor could no longer be permanent, but had limited and staggered terms. the continuity of capital took the place of the permanence of the governing body in providing stability. there was a regular scale of salaries for employees, and rules of conduct such as the one disallowing any clerk of the india house from going to play houses, dancing schools, or taverns. the company established almshouses for its widows and orphans. in 1657 the muscovy company, renewed its charter for trade in russia and established a new general stock. if a man bought a share, he bought freedom of the company. an annual dividend was declared from the annual profits. commercial men regularly kept accounts with bankers. merchants used division to apportion profits or losses to the parties whose capital was involved. simple and compound interest were used. the concept of contract became a familiar one. regular private bankers of london emerged from the goldsmiths from 1640 to 1675. they issued bank notes and paid checks. cromwell increased trade by seizing territories, establishing colonies, and warring with competitors for master of the seas and trade. in 1649 it was provided that no one who paid his assessment for soldiers' pay would have to quarter any of them. authority was given in 1649 to impress seamen: mariners, sailors, watermen, surgeons, gunners, ship carpenters, caukers, coopers, whoymen, and carmen for carriage of victuals. english ships were embellished with decoration. their sail area was increased by triangular fore and aft sails. the navy increased from 39 to 80 vessels. after serving in foreign wars, ex-soldiers were allowed in 1654 to practice any trade without serving a seven year apprenticeship. colonies new hampshire and maine were established in 1635, connecticut in 1636, and rhode island in 1638, as offshoots from other colonies. about 1650, steel was hardened by repeated quenchings and temperings when the steel had reached certain colors. brass was made from copper and zinc alloyed together. there were power-driven rolls for the coinage from 1657. strips of silver were passed between engraved rolls. then coins were punched out and their edges serrated. in the 1650s, huygens made the first pendulum that worked practically in a mechanical clock. this new clock increased the accuracy of time-keeping tenfold. he also introduced the concept of mathematical expectation into probability theory. there was a thermometer which used liquid such as water or alcohol in a glass tube instead of air. dutchman stevinus showed that the pressure at the bottom of a column of liquid is proportional to the height of the column, and not to its bulk, about 1634. he also studied oblique forces, and the balancing of such that could bring about "stable equilibrium". blaise pascal, a french mathematician, physicist, and religious philosopher, constructed a calculator in 1644 to assist his father, who was involved in local administration, in tax computations. around 1646, he proved his law that pressure applied to a confined liquid is transmitted undiminished through the liquid in all directions regardless of the area to which the pressure is applied. around 1653, he laid the foundations for the theory of probabilities, including the creation of "pascal's triangle" of coefficients of (a=b) raised to the nth power. he and lawyer and mathematician pierre fermat invented the theory of probabilities. fermat also proved that the law for refraction (bending) of light results from light's following the path that takes the shortest time. he founded number theory, the study of properties of whole numbers, in 1640. fermat formulated the notion of a line tangent to a curve and started the development of differential calculus, in which a rate of change is expressed as a function of time in equation form and also as a tangent to the curve associated with that equation. this work helped lay the foundation for analysis. he and german gottfried leibniz formulated the principle that an equation with two unknown quantities can represent a curve. leibnitz believed that man's mind can arrive at truths about entities by pure thought. since the puritans forbade music in churches, but enjoyed it in domestic circumstances, much secular music was composed, published, and played. there were many musical clubs. the violin became very popular. solo songs were much sung. the first english opera: "the siege of rhodes" was written and performed with women on stage. writers of the time included john milton, political philosopher james harrington, poet edmund waller, thomas fuller, poet abraham cowley, and biographer issak walton. john aubrey wrote anecdotes about famous men. jeremy taylor, chaplain to charles i, wrote on theology. people still read french romances translated into english. dancing was still popular. coffee houses came into prominence as places of social discourse. the first coffee house was established in london in 1652; ten years later, there were 82 coffee houses in the city. there were elegant pleasure gardens, with a fee for access. they were used for promenades and picnics. ladies and their gallants rendezvoused there. cromwell introduced the habit of port drinking to england. in 1657, one general post offices was established with one postmaster general for all of england. no other person could have the horsing of the through-posts. it cost 2d. for a letter to or from 80 miles of london and 3d. for one outside 80 miles of london. there was continual problem with catholics. mayors, justices and capital burgesses of towns where papists or others had caused rebellion and insurrection and plundered, robbed, pillaged, murdered and raped, were given the power in 1642 to call, assemble, train, and arm soldiers for defense. the committee of the militia of london was given authority in 1647 to search all houses and places for papists and to search for and seize any arms, ammunition, and war materials in custody of such persons. in 1648, all papists and soldiers of fortune who had borne arms against parliament were ordered to depart from within twenty miles of london and westminster or be imprisoned as traitors. in 1657 convicted papists and people marrying convicted papists were required to take an oath renouncing the pope and catholic church or lose two-thirds of their lands and estate, retaining their house on the remaining one-third. if one went to mass in an ambassador's house, the fine was 100 pounds and imprisonment for six months, one half going to the informer. in 1659 all householders in london and westminster had to give a list of persons lodging in their house, and the horses and arms there. but the laws against catholics practicing their religion were not rigorously enforced, nor were those against adherents of the formerly established church of england. the society of friends was founded by the son of a weaver. they greeted everyone as "friend" and did not bow, remove their hat (as was the custom when before the king or an earl), or otherwise show any reverence to anyone. from 1650, they were called quakers because they trembled when religiously stirred. they reverted to the ancient "thou" and "thee" appellations. their dress was particularly simple, with no buttons, lace, ruffles, or embroidery. they hated ritual so much that they rejected baptism and communion. they did not observe the sabbath as a special day different from other days. they derided the holiness of churches. no clergy were admitted into their sect. when they met for divine worship, each rose to deliver extemporaneous inspirations of the holy ghost. women were admitted to teach the brethren and were considered proper vehicles to convey the dictates of the spirit. quakers believed that every man, in his own life, could be fully victorious over sin. the denied any clerical authority and all texts. they believed in the separation of church and state. they refused to swear to any oath, e.g. in court, or to participate in war. they refused to take off their hats to anyone but god. it was their practice to turn the other cheek when one cheek had been struck. if asked for his cloak, a quaker would give it. he never asked more for his wares than the precise sum which he was determined to accept. the quakers encouraged widows and widowers to provide for children from a first spouse when remarrying. they carefully selected masters and mistresses who wanted to take on child apprentices for their suitability for such responsibility. the education of quaker women did not decline, as it did for other women. from the fervor of their zeal, the quakers broke into churches, disturbed public worship, and harassed the clergyman and audience with railing and reproaches. when brought before a magistrate, they show no reverence but treated him as an equal. sometimes they were thrown into mad house or prisons and sometimes whipped or pilloried. they endured stoically under this suffering. mary fisher from yorkshire introduced quakerism to new england. in 1653 there were separation agreements between spouses as to property, e.g. support and maintenance. cromwell had bad experiences with parliaments. the rump parliament was a remnant of the long parliament. the army and then cromwell, although a member, came to believe that its members were selfinterested, preoccupied with perpetuating themselves in seats of power, and corrupt. they thought that their own hopes of reform in the law, in the church, and in public finances were being deliberately frustrated. cromwell came to doubt that it would ever give the people adequate government and protection. he started to believe that one man as chief executive could do this better. cromwell dismissed the rump parliament in 1653. a new constitution created a puritan "parliament of saints". these men were nominated in various ways, such as by church parishes, and selected by cromwell. this one-house parliament of saints in 1653 made cromwell lord protector for life with executive power of the state, with responsibility for making peace and establishing order after a decade of civil strife and political chaos. he was to administer the government and be the chief magistrate. it also provided for triennial parliaments (consisting of one house), and religious freedom for all except roman catholics and adherents of the formerly established church of england. cromwell did not tolerate the ritual of the formerly established english church nor allow any of its adherents to have any office under him. his was a purely puritan government. he did not sell offices. the parliament of saints challenged many vested interests in property such as sales of delinquents' and papists' lands. it clashed severely over the continuation of tithes to the church. it became disorderly when some declared the parliament dissolved and left. others remained in their seats. to avoid a parliamentary crisis, cromwell had soldiers close the parliament of saints and lock its doors. the people supported this action because they were dissatisfied with the state of public affairs. the next parliament that was tried was elected on a new constitutional basis of men with 200 pounds, but these men voted to make parliament sovereign without a chief executive, thereby abolishing the protectorate. cromwell was distressed that this parliament had also voted themselves to be the sole determinors of atheism and blasphemy instead of advancing liberty of religious conscience and religious toleration as cromwell had advocated. he dissolved this parliament, declaring that it was not acting for the public good. a last parliament was also dissolved by cromwell for tending to loosen the bonds of government and thereby threatening the peace of the nation. cromwell had first ruled as a democratic leader who did not believe in force, but preferred to persuade with reason. he initially believed that people would do the right thing according to their consciences, but was disillusioned and then became autocratic. he came to rule as a military dictator. payment of taxes was enforced by distraint. after 1654, he issued about 100 proclamations covering public amusements, roads, finances, the condition of prisons, the imprisonment of debtors, banning of dueling and cockfighting, law reform, control of religion and education, and reorganization of the army. the singing of ballads was banned. the court of chancery was reformed by proclamation. the established church was reformed and the power to interfere with different faiths was denied to it. each parish could choose its form of service, whether presbyterian, congregational, baptist, or any other seen as fundamental by the puritans. no one was compelled to attend any particular church or to accept the discipline of any particular minister. but the book of common prayer was forbidden. there was freedom of worship for presbyterians, independents, baptists, quakers, catholics, and jews (who had secretly migrated to england to avoid persecution on the continent), but not prelatists (those favoring government of the church by bishops). in 1655, cromwell placed major generals in charge of eleven newlyestablished provinces. as their governors, they had authority to levy troops, exact taxes imposed by the protector, disarm royalists and catholics, examine into the conduct of the clergy and schoolmasters, arrest dangerous and suspicious persons, and prevent unlawful assemblies, and to enforce the existing laws against immorality and blasphemy. the only appeal was to the protector. since they were puritans, they ordered public ale houses to close as dusk, banned idlers, minstrels, and actors, forbade exercising of horses on sunday and the holding of markets on saturday as well as sunday, censored the press, and proscribed newspapers. horse races, which meetings were used for seditious purposes, were closed. theaters were closed. dancing was discontinued. organs and choirs in churches prohibited. court masks continued because they provided soothing music. after a year, cromwell withdrew the major-generals. from this time, men of property hated the idea of a standing army. in 1657, the officers of a new parliament modified the constitution and cromwell approved it, to secure liberties of the people as they never before had. under the modified constitution, there were again two houses. the commons regained its old right of exclusively deciding on the qualification of its members. parliamentary restrictions were imposed on the choice of members of the council, officers of state, and officers of the army. a fixed revenue was voted to the protector. no moneys were to be raised except by consent of parliament. liberty of worship was guaranteed to all except papists, prelatists, socinians (who denied the divinity of jesus), for those who denied the inspiration of the scriptures. liberty of conscience was secured for all. in 1658, cromwell tried another parliament, but dissolved it because it wrangled without resolution. after cromwell died, the people demanded the return of a genuine and free parliament. the old constitution was restored and a new house of commons was elected. it called charles ii to return to be king if he promised religious freedom and backpay to the army, which had not recently been paid. when cromwell's puritan soldiers were disbanded, they did not drift into thievery as royalists soldiers had before, but took up honest work such as baker, mason, brewer, baker, or haberdasher. puritanism now made itself felt not by the sword, but in literature and politics. it affected the character of the english, who tend to be stoics, and imbued capitalists with a hard-working attitude. the law after the civil wars, the law against enclosure was not enforced. what was passed in parliament in cromwell's time were called statutes, but after cromwell's time, these statutes were not recognized as legitimate. "whereas public sports do not well agree with public calamities, not public stage-plays with the seasons of humiliation, this being an exercise of sad and pious solemnity, and the other being spectacles of pleasure, too commonly expressing lascivious mirth and levity ... public stage plays shall cease, and be forborne instead of which are recommended to the people of this land the profitable and seasonable considerations of repentance, reconciliation, and peace with god, ..." no book or pamphlet may be printed, bound, stitched, or sold or imported unless licensed and entered into the register book of the company of stationers. officials of this company and of parliament may search all places which they shall think meet for all unlicensed printing presses and all suspected printing houses, warehouses, and shops and other places for unlicensed books and pamphlets and papers and seize them and apprehend all authors, printers, and other involved people and bring them before parliament or the committee on examinations for punishment. justices of the peace and other officers may order doors and locks broken for this purpose. the fine is ten pounds for authors, five pounds for printers, two pounds for booksellers, and one pound for buyers who conceal a book bought. one half of each fine shall go to the person who discovers and prosecutes the offender, and the other half shall go to the poor. this law suppressed royalist newspapers but was enforced only with great difficulty. all shall observe sunday and days of thanksgiving in their "duties of piety and true religion publicly and privately" and none may sell wares or goods, including fruit or herbs upon pain of forfeiture of such. none may, without reasonable cause, travel, carry burdens, or do any worldly labors or work whatsoever or pay a fine of 10s. this work shall include grinding grain, fulling in mills, burning turf or earth, gathering taxes, melting wax for candles, brewing, baking, butchering cattle, tailors fitting or carrying clothes, barbers trimming hair, being present at fairs or markets, or washing, whiting, or drying clothes. nor may any one maintain or be present at wrestlings, shooting, bowling, ringing of bells for pleasure or pastime, masks, wake, church-ale, dancing, games, sport or, for those over 14, forfeit 5s., and for those having care or education of a child under 14, 12d. maypoles, a "heathenish vanity, generally abused to superstition and wickedness", shall be taken down by officers or else forfeit 5s. per week. if any offender can't pay his fine, he shall be put in the stocks for three hours. however meat maybe dressed in private families, and victual sold in inns and victualing houses in a moderate way, and milk sold before 9a.m. or after 4p.m. persons of the trinity, angels, or saints shall be demolished. altar and communion tables must not be raised but leveled. there may be no copes, surplices, superstitious vestments, or holy water fonts. there may be no crosses, crucifixes, pictures of the trinity, angels or saints on plates. all organs must be taken away. the fine for using the book of common prayer is five pounds for the first offense, ten pounds for the second offense, and one year imprisonment without bail for the third offense. the penalty for writing or preaching against the directory for public worship is five to fifty pounds. blasphemies and heresies such as teaching or writing or printing that there is no god, that god is not almighty, that jesus was not divine, that the resurrection of jesus did not occur, that the bible is not the word of god, or that there is no judgment day after death, are felony without benefit of clergy. if such an offender recants, he shall stay in gaol until he obtains two sureties. if he offends again after recantation, it is felony without benefit of clergy. in 1650 adultery was declared to be a felony, except for a wife whose husband had been beyond the seas for three years or had been reputed to be dead. incest was also declared to be a felony. it was defined as marrying or having carnal knowledge of one's grandparent, parent, sibling, mother's brother or sister, father's wife, mother's husband, son's wife, daughter's husband, wife's mother or daughter, or husband's father or son. fornication was given a punishment of three months imprisonment and until security was obtained for one year for good behavior. it was defined as carnal knowledge of a virgin, unmarried woman, or widow. a common bawd or one keeping a brothel or bawdy house was to be whipped, set in the pillory, marked in the forehead by a hot iron with the letter: b, and then imprisoned for three years without bail and until there were sureties for good behavior for life. the second offense was felony without benefit of clergy. there was to be no corruption of the blood. however, juries were reluctant to convict for adultery and incest. there shall be no profane swearing or cursing of forfeit by a lord 30s., a baronet or knight 20s., an esquire 10s., a gentleman 6s.8d., and all others 3s.4d.there is a double fine for the second offense. for the tenth offense, the offender shall be bound by sureties for good behavior for three years. a person equating himself or another with god or not believing in god shall be imprisoned for six months without bail. for the second offense, he shall be banished from the nation. no longer shall people be punished for nonattendance at church on sunday or days of thanksgiving, but may be at some other place of prayer, preaching, reading, or the scriptures. hawkers and ballad singers have been libelous, so are to be whipped as common rogues and then dismissed. also, their ballads and pamphlets are to be confiscated. vagrant, idle, loose, dissolute and disorderly persons and fiddlers in inns, alehouses, and taverns are to be punished as rogues, vagabonds, and sturdy beggars, that is, whipped. in 1649, treason against parliament was defined as writing, printing, or declaring that the government is tyrannical, usurped, or unlawful; or that parliament is not the supreme authority of the nation; or plot, contrive, or endeavor to stir up or raise force against the government. attainder for such would not work corruption of the blood. treason to the protector was defined the same as it was to the king. army deserters are to be corporally punished or executed. fellable wood and underwood, but no timber trees, may be cut within 60 miles of london because fuel is needed, especially by the poor. this will be supervised by overseers appointed by parliament. no one may import foreign hats or hatbands to relieve that industry in england. as of 1656, certain food could not be exported when the prices of such exceeded a stated amount. for instance, 5 pounds for a 36 gallon barrel of beef, 6d. for a pound of bacon, 4 pounds and 10s. for a 224 gallon barrel of butter, and 24s. for 64 pounds of rye, pease, or beans. the customs for such items was more for foreigners than for natives, for instance 3s. for natives and 5s. for foreigners for a barrel of beef. butter for sale must not be corrupt and be properly weighed. one must obtain a license to buy wheat or other grain and put it to sale in meal or flour or else forfeit three times the value. all books of the law, writs, pleadings, and patents shall be in english or else forfeit 20 pounds. no deer may be killed or else forfeit 15 pounds, half to the informer and half to the poor. interest may not exceed 6 pounds for a loan of 100 pounds yearly as of 1651. no goods are to be imported from america, asia, or africa except in english ships or else forfeit all goods and the ship, one half of which goes to the one who seizes the goods and prosecutes. none may be imported from europe except in english ships or ships from the country of origin of the goods. no salt fish may be imported or exported but in english vessels. there is a 10 pound reward for discovery of highwaymen and burglars or persons who break and enter into houses and there use violence. no cart or wagon or carriage on the road may be drawn by more than five horses or six oxen and a horse except for military vehicles. notice of intended marriages shall be published once a week for three weeks in a public meeting place called church or a public market place next to church. exceptions to the marriage shall be noted by the register and considered by the justice of the peace before the marriage is performed. the words used shall be: "...promise to be unto thee a loving and faithful husband..." and "promise to be unto thee a loving, faithful, and obedient wife...". there shall be no cock-fighting because it disturbs the peace and usually is accompanied by gaming, drinking, swearing, and quarreling. anyone challenging or accepting a challenge to duel shall be imprisoned for six months without bail, and must acquire two sureties for a year. anyone fighting a duel in which death ensues, shall be banished for life. horse races were forbidden in 1654 for six months to discourage mischievous plots and designs by enemies of the state. the penalty was forfeiting the horse. attendees were to be brought to justice. as of 1657, a house or building built within ten miles of the walls of the city of london not having at least four acres had to pay a fine of one year's rent. all houses within london or westminster or the suburbs must be brick or stone, and built straight up without protruding into the street or else forfeit 100 pounds. as of 1657 persons living extravagantly without visible estate or calling may be made by justices of the peace to acquire sureties for good behavior or go to gaol. they would also be sent to the house of correction to work for three months for the first offense and for a time specified by the justice of the peace for the second offense. anyone winning at betting or playing at cards, dice, tennis, and horse races shall forfeit double his winnings. excluded from pardon were buggery with man [sodomy] or animal [bestiality], carnal ravishment of women, and bigamy. drunkenness was much punished. husbands were responsible for their wives' oaths and fathers for their daughters'. judicial procedure the protector is the supreme magistrate of the commonwealth, with power to pardon all crimes, except murder and treason. parliament was no longer a court. use of the torture was proscribed in 1649. in 1652, the justices were given a salary of 1,000 pounds and forbidden to take fees or rewards. they also got tenure, thus freeing them from government pressure. now civil justice was honestly dispensed and justices were learned and honest. the jurisdiction of admiralty court was defined to include: ships and vessels with tackle, apparel and furniture thereof; repairing, victualing, and furnishing provisions of ships and vessels for sea; all cases of bottomry [ship-owner indemnified if the vessel were lost, but paid over a substantial share of the profits if it reached its destination safely], contracts beyond the seas concerning shipping or navigation; charter, parties, contracts for freight; bills of lading; mariners wages; damage of goods on board ships; and damage by one ship to another including by anchors or want of laying buoys. it did not include contracts between merchants. chapter 17 times: 1660-1702 the monarchy was restored and charles ii came to the throne. the episcopacy of the bishops and the book of common prayer were restored. this book retained all its ceremonies, despite opposition by the presbyterians. the confiscated royalist, church, and crown lands were ordered to be restored, and most were. charles ii was presented with the traditional rights of choosing his own privy council, ministers of state, and justices; making foreign policy; controlling the armed forces; and approving statutes. he was also presented with the power to call and dismiss parliament, but later, in 1694, a statute required that parliament be held at least once every three years, to avoid royal schemes of non-parliamentary government. the house of lords was reestablished and there were again bishops in it, though fewer than before (about 1/8 instead of about 1/3). there were 160 peers for the next century. the house of commons was elected in the usual way, but without a king's writ. the commons was composed mostly of royalist established church members. its leaders were important members of the king's privy council. the feudal tenures of the crown, such as knights' service, were converted into free socage. they were discharged of homage, reliefs, escuage, and aids. charles relinquished purveyance, wardships, and forfeitures of marriage. in return, parliament granted him a fixed yearly income of 100,000 pounds from excise tax on beer, cider, and tea. several hundreds of dissenter ministers and school teachers were ejected from their positions, but later those who were not baptists were returned by statute of parliament. (baptists did not believe in an established church.) charles ii was an easygoing and kindly man and hard to ruffle. he had a weariness in the folly of men and a cynical disbelief in human virtue. his wit and great sense of humor softened many a potentially tense situation. his restoration to the throne brought in a time of enjoyment of life in reaction to the puritanism of before. at his succession, the elected parliament was oriented toward royalty and the established church. he was voted an income of 1,200,000 pounds a year. he also sold many of the last crown lands. but he always had great debts, which he described as a "desperate but not serious" situation. this was in part due to his generous maintenance of several successive mistresses and more than about a dozen illegitimate children. his entourage also included physicians, surgeons, a librarian, a poet laureate, chaplains, painters, an historiographer, musicians, a royal composer, and an astronomer. charles even joked on his deathbed that "i am sorry gentlemen, for being such an unconscionable time a-dying." the day of charles ii's restoration and birthday was designated as a day of thanksgiving when all were to participate in prayers and the singing of psalms at some church or other suitable public place. charles initiated the return of sunday afternoon wrestling, archery, music, and dancing. theaters reopened with actresses playing women's parts, an audience only in front of the stage instead of around it, a drop curtain, and painted two-dimensional scenery. actresses were allowed pursuant to royal proclamation so that plays should become "useful and instructive representations of human life" rather than "harmless delights". charles went to plays regularly. actresses were assumed to be mistresses of patrons in return for their jobs, but one fourth were actually chaste women married to actors. comedies were the preferred plays. courtesans were sympathetically and even admirably treated in plays, which mocked all restraints and glorified immorality with the exception of pornography, which was banned. bad actors were hissed off the stage. henry purcell wrote religious music for churches, ceremonial music for the english court, and theater music for english opera. opera made music a vehicle for human emotions. the gentry sang to the lute and danced to string instruments. many owned and played musical instruments. humble people had folksongs and instruments like the pipe and tabor for dancing. singing in parts was popular in town and country. in 1672 john banister started the first regular series of public concerts in his house. there were lovely formal gardens in which to walk, to see fireworks, and to buy the new ice cream. charles did much garden and park planning and let the public enjoy the royal st. james park. he loved hunting too and had the royal forests replenished with deer after poaching during the cromwell era had greatly reduced their numbers. charles ii introduced sailing and yacht racing for pleasure. he also participated in and promoted horse racing. the breeding of thoroughbred horses began with breeding to arab mares. gelding horses were now preferred over stallions. there were trotters, cart horses, and some "fast" race horses. boxing (with no gloves nor ring) was a national sport. ice skating with iron blades was popular. valentine's day was celebrated. italian puppet shows played in london. dress returned to elaborateness. gentlemen wore cavalier-style long wigs with curls, despite the church's dislike of wigs. this could hide the short hair of a former puritan roundhead. in 1666, charles introduced a new mode of inexpensive court dress which was made entirely from english textiles. this gave rise to gentlemen's weskits to below the knee with a coat of the same length and full sleeves. stockings and shoes replaced the long fitted boots. charles set a court tradition of men wearing a scarf tied around the neck. ladies often wore their hair in masses of ringlets with little corkscrew curls on each side of their heads, and later piled their hair up elaborately on their heads. they wore satin or silk dresses fitted at the waist with a pointed bodice, and full skirt. the shoulder line was low and the sleeves full and open at the front with fastenings of jeweled clasps. the only fast colors were reds, blues, purple, and yellow, but not green. they kept their hands warm in muffs. women wore perfume, rouge, and face patches. some women put on a lot of make-up. many men dressed effeminately with rouge, face patches, heavily scented clothing, muffs, and many ribbons of many colors. the facial beauty patches were in shapes such as stars, crescent moons, and hearts; they diverted attention from the common smallpox scars. there were oxford shoes, which laced up the front through eyelets. the members of the house of commons dressed like the gentry and assumed their manners. there was exaggeration in all complimentary and ceremonial language. the gentry were beginning to be thought of as a "squirearchy". they owned about half the land of the country. the population according to class was as follows: number of social ranks, household household households degrees, titles size yearly income in pounds 160 temporal lords 40 3,200 26 spiritual lords 20 1,300 800 baronets 16 880 600 knights 13 650 3,000 esquires 10 450 12,000 gentlemen 8 280 5,000 persons in greater offices and places 8 240 5,000 persons in lesser offices and places 6 120 2,000 eminent merchants and traders by sea 8 400 8,000 lesser merchants and traders by sea 6 198 10,000 persons in the law 7 154 2,000 eminent clergymen 6 72 8,000 lesser clergymen 5 50 40,000 freeholders of the better sort 7 91 120,000 freeholders of the lesser sort 5.5 55 150,000 farmers 5 42.5 15,000 persons in liberal arts and sciences 5 60 50,000 shopkeepers and tradesmen 4.5 45 60,000 artisans and handicrafts 4 38 5,000 naval officers 4 80 4,000 military officers 4 60 50,000 common seamen 3 20 364,000 laboring people and out-servants 3.5 15 400,000 cottagers and paupers 3.25 6.5 35,000 common soldiers 2 14 25,000 vagrants, as gypsies, thieves, beggars as can be seen, agriculture is still the most common occupation. great houses now had a central dining chamber [saloon] for dining, with sets of lodgings [suites], usually for couples, around it. each lodging had an ante-chamber and/or drawing room, and then a bedchamber, off of which there was a servant's room and a closet [cabinet]. no longer did personal servants bed down in the drawing room or outside their master's door or in a truckle bed at his feet. the servant's room was connected to a back staircase for use by servants. secret guests also used it. the closet room was the innermost sanctum for privacy and gave its name to the later cabinet of the government. there were fewer servants and they were of a lower social status than before. they were often sons of merchants, clergymen, and army officers. gentlemen no longer advanced by service to a great man, but instead through grammar school and university education, commerce, the law, or the armed services. this change came about because the state now maintained reasonable law and order. there were more female servants, who were paid less to cook and to clean as well as doing laundry and nursing. servants were kept more in the background, preferably out of sight. the elaborate ceremonial ritual with sewer, carver, and cupbearer was gone. a butler replaced the yeomen of the buttery, ewery, and pantry, and footmen began to wait on the table at which the lord, his lady, and other couples sat. servants no longer had meals in the hall, which now had a grand staircase up to the dining chamber. the highest servants, the officers: clerk of the kitchen, clerk of the check [comptroller], head cook, butler, and groom of the chambers, and female housekeeper ate in the gentleman-of the-horse's room, although at a separate table. the kitchen staff ate in the kitchen. the footmen, underbutler, porters, coachmen, grooms, stable-boys, gardeners, maids ate in a servant's room. the steward was no longer the chief household officer, but had a room near the kitchen. the bulk of the servants slept in the basement or subordinate wings of the house. great houses of nobles had more rooms, such as a chapel, library, parlors, dressings rooms, and galleries; there was a variety of architectural floor plans. the structure of a noble household of an earl was as follows: the chief official was the receiver general. he had financial responsibility for the household and prepared accounts for the household and for the tenants' estates. these were checked by an auditor. the receiver general was often the son of a country gentleman and had a salary of 50 pounds raised to 100 pounds with longevity. he had a servant and an assistant. if married, he had a house on the property. there was perhaps an attorney on retainer (paid for a certain number of hours per week or month). the gentleman of the chamber [privy purse] kept the accounts of the family and bought them apparel and toiletries. he was in close personal attendance upon the earl. his salary was 20 pounds a year. besides the receiver general and the gentleman of the chamber, the tutor and chaplain had the closest personal contact with the family. the lady had a gentlewoman with a maid servant. the receiver general supervised most of the staff. there was a steward of 40 pounds a year. he supervised a clerk of the kitchen and a house bailiff of 20 pounds a year. the bailiff had responsibility for the produce of the estate, e.g. the gardens, the deer park, and the fish ponds. under the clerk of the kitchen was the cook man and kitchen boys, the latter of whom were clothed and fed but not paid. the steward also supervised the 4 pound yearly porters, who kept the gates; the watchmen outside; and the head housekeeper, usually a woman of 2 to 6 pounds yearly. she supervised the laundry maid and general maids, who spent much of their time sewing. the steward was also responsible for the wine cellar. a dozen footmen belonged partly to the house and partly to the stables and received 2 to 6 pounds yearly. they waited on the lord and lady in the house and accompanied them in travels and did errands for them. the gentleman of the horse supervised the stables, coach, dogs, kennels, and 16 pound yearly huntsman. boy pages also worked partly in the house and partly in the stables. they were clothed and fed, but not paid. the head gardener received 80 pounds for tending the flowers, vegetables, and fruit trees. he had casual workers as needed to assist him. the steward was also responsible for the london house. here there was a housekeeper, a watchman, and a 40 pound a year gardener, all there permanently. when the lord was there, bargemen were employed for his barge. the salaries for the family estate totaled about 600 pounds a year. sometimes married sons' or daughters' families stayed for months at the family estate; then they would pay for their part of the food. well-to-do people drank imported tea and coffee, sometimes from porcelain ware, and usually after dinner or supper. most tea leaves were brewed first for the family and guests and a second time for the servants; then they were given to the servants' relatives or friends. queen mary encouraged the fashion of collecting chinese porcelain. the rich had red or black and gilt lacquered cabinets and cupboards. oak gave way to walnut, with its variegated surfaces. there were grandfather clocks. some fireplaces now had cast-iron firebacks. stuffing began to be upholstered to woodwork benches. chairs were taller in the back. ladies did needlework to cover them and also made patchwork quilts. cane seats came into fashion. >from the spring of 1665 to the end of 1666 there was a great plague, mostly in london. it was the last and worst plague since the black death of 1348. it lasted over a year and about one-third died from it. households with a plague victim were walled up with its residents inside to reduce contagion, and then marked with a red cross. church bells tolling their requiems clanged in ceaseless discord. the mournful cry "bring out your dead" echoed in deserted streets. at night groups of people shoveled the corpses into open graves. to prepare for this revolting task, they often first became drunk out of their senses. people acquired wild beliefs in hope of avoiding the plague. for instance, at one time it was thought that syphilis would prevent it, so maddened hordes stormed the brothels. at another time, it was rumored that the plague could be burned out of the air, and all one day bonfires blazed outside every door and people sweltered in the heat. other localities posted sentries on the road to keep londoners out of their areas to prevent the plague from spreading there. since sneezing was thought to be the first sign of a person getting the plague, it became common to ask god to bless a person who sneezed. in london, statistics were collected on the number of plague victims and their places of death to try to determine the cause of the plague by correlation, a new method. this was a natural sequent to merchant john gaunt's 1662 book "natural and political observations made upon the bills of mortality", which compiled yearly vital statistics from which to analyze, for instance, causes of death due to particular diseases. it reached conclusions such as that fall was the most unhealthy season; females had longer life spans than males; and infant mortality was very high. in 1666 a fire destroyed three-fourths of the city of london. the blazing buildings were so hot that people with leather buckets of water, hand squirts, and manually operated water-pumping machines could not get near them. there was a lot of noise from falling buildings. panic and desperation were widespread. there was a lot of crying out and running about distractedly. people saved some of their possessions by burying them or removing them from the fire's path as they moved to different lodgings. the streets were full of carts piled high with furniture and merchandise. the thames river was thick with heavily laden barges. melting lead from st. paul's church ran down the streets in a stream. the tower of london, upwind of the fire, was saved by blowing up surrounding buildings. eventually the wind abated and the fire was put out. a fire court with royal justices was created to offer settlement terms about property that were free, fair, fast, and final. army tents and supplies, and soup kitchens sustained the citizens in the fields. after the fire, buildings had to be brick or stone rather than wood, except for doors and windows. also, more plaster and tile was used. all roofs had to be of tile or slate, rather than thatch. there was a general use of tile for roofing. about 1714, came slate for roofings. all buildings had to be at least two stories high, with flat facades rather than overhanging upper floors. they had to have wide brick walls around them to avoid the spread of fires. many streets, squares, and alleys were professionally planned, after the example of inigo jones, who had continued his town planning with lincoln's inn field's open square surrounded by houses with iron balconies. another example was leiscester square. main streets had to be wide enough to stop a fire. the street selling that had caused so much congestion was removed to new market places. the massive rebuilding of london ended the monopoly of the building trade claimed by the mason's company. astronomer and geometrician christopher wren designed and built a new st. paul's cathedral and many churches in london, thus becoming england's first architect. he worked up from a square base through all sorts of shapes to a circular double dome on top. the fire put an end to whitehall as a royal residence and st. james palace was used instead. but at least one fire hazard remained: the practice of lighting new fires by taking buckets of hot coals from one room or house to another. this was faster than the several minutes it took to use a tinder box to start a flame, i.e. striking a piece of flint upon a piece of steel making a spark which was dropped onto tinder and then blown upon. matches were invented in this period, but expensive and unsafe. nicholas barbon began fire insurance in the 1670s. if fire broke out on an insured premises, the insurance company's firemen would come with leather buckets and grappling irons, and later small hand pumps. barbon also redeveloped many districts in london, tearing down old buildings without hesitation. he started the system of selling off leases to individual builders, who hoped to recover their building costs by selling their houses before they were completed and before substantial payments on the lease became due. entrepreneurial master-builders subcontracted work to craftsmen and took a large profit or a large loss and debt. aristocrats bought large parcels of land on which they built their own mansions surrounded by lots to be rented to building contractors and speculators like barbon. the houses built on these lots were sold and the underlying land rented. these rentals of land made the mansions self-supporting. barbon built rows of identical townhouses. sometimes houses were built on all the lots around a square, which had gardens reserved for the use of those who lived on the square. most of the new building was beyond the old city walls. marine insurance for storms, shipwreck, piracy, mutiny, and enemy action was also initiated. before the fire, e.g. in tudor times, the writing of risks had been carried on as a sideline by merchants, bankers, and even money lenders in their private offices and was a private transaction between individuals. london was residential and commercial. around the outside were tenements of the poor. from 1520 to 1690, london's population had risen tenfold, while the nation's had only doubled. london went from 2% to 11% of the nation's population. in 1690, london's population was about half a million. after 1690, london's population grew at the same rate as the nation's. the first directory of addresses in london was published in 1677. business began to follow the clock more strictly and many people thought of their watches as a necessity. london coffee houses, which also sold wine, liquors, and meals, became specialty meeting places. they were quieter and cheaper than taverns; for a penny, one could sip a cup of coffee by the fire, read the newspapers, and engage in conversation. merchants, stock jobbers, politician groups, soldiers, doctors and clergymen, scholars, and literary men all had special coffee house meeting places. notices and letters of general interest were posted therein. many merchants, brokers, and underwriters, especially those whose houses had been burned in the fire, conducted their business at their coffee house and used it as their business address. men in marine insurance and shipping met at lloyd's coffeehouse, which was run by edward lloyd who established it for this purpose in 1687. lloyd provided reliable shipping news with a network of correspondents in the principal ports at home and on the continent and circulated a handwritten sheet of lists of vessels and their latest movements at his coffeehouse. the patrons cheered safe arrivals and shared their grief over ships lost. they insured their own risks at one moment and underwrote those of their friends the next. auctions of goods and of ships and ship materials which had been advertised in the newspapers were conducted from a pulpit in the coffeehouse. french wine was consumed less because of heavy taxation and spirits and beer were consumed more. the streets were alive with taverns, coffee houses, eating houses, and hackney coaches past 9 p.m. at night. coffee houses were suppressed by royal proclamation in 1675 because "malicious and scandalous reports" defaming his majesty's government were spread there, which disturbed the peace and quiet of the realm. but this provoked such an uproar that it was reduced to a responsibility of the owner to prevent scandalous papers and libels from being read and hindering any declarations any false and scandalous reports against the government or its ministers. london air was filthy with smoke from coal burning. in 1684 the streets were lit with improved lights which combined oil lamps with lenses and reflectors. groups of householders combined to hire lighting contractors to fulfill their statutory responsibility to hang candles or lights in some part of their houses near the street to light it for passengers until 9:00 p.m., and later to midnight. in 1694 a monopoly was sold to one lighting company. in 1663 a body of paid watchmen was established in london. an office of magistrate was created and filled with tradesmen and craftsmen, who could make a living from the fines and fees. this was to supplement the unpaid justices of the peace. the public was encouraged to assist in crime prevention, such as being witnesses, but most policing was left to the parishes. crowds punished those who transgressed community moral standards, threatened their economic or social interests, or offended their religious or patriotic beliefs. often a crowd would react before the call of "stop thief" or the hue and cry from the local constable. pickpockets would be drenched under a pump. cheats would be beaten up. dishonest shops and brothels would be ransacked or destroyed. the most common targets were promiscuous women and pregnant servants. there were many highway robberies and mob actions in london. mobs in the thousands would turn out against the catholics, especially at times of unemployment and trade depression. working people still saw demonstrations and violence as the best way to achieve their economic goals, since strikes didn't work. for example, the silk workers used street violence to get protective legislation against imports and mechanization in 1675. the manufacture of silk material had been brought to england by french workers driven from france. in 1697, three thousand london silk weavers demonstrated outside the commons and east india house against the importation of raw silks by the east india co., and a couple months later, they attacked a house in the city owned by a gentleman of the company. in 1701, heavy duties were imposed on the import of indian silks and wearing of indian silks was prohibited by statute. sometimes mobs would break open the prisons to release fellow rioters or take action against strike breakers or informers. parish constables elected by their neighbors could not control the mobs and stayed within their parishes. dueling was still prevalent, even though against the law. in london and westminster, it was hard to enforce the requirement that inhabitants keep the street in front of their house clean and store the filth until the daily raker or scavenger came with cart and dung pot. so a commission was made responsible for paving and keeping clean the streets, making and repairing vaults, sewers, drains, and gutters, and removing encroachments. it compensated those with encroachments of over 30 years. it assessed inhabitants of such streets 16d. per square yard from the front of their building to the center of the street. women continued to empty their pails and pans outside their doors and did their washing on stools in the streets. there was a penalty of 5d. for throwing filth in front of one's house, and 20d. for throwing it elsewhere in the streets. scavengers and rakers could lodge their coal ashes, dust, dirt, and other filth in such vacant public places as the commission deemed convenient for accommodating country carts returning otherwise empty after their loads were sold. however, this system did not work because people would not pay their assessments. so there was a return to the former system of requiring citizens to sweep and clean the streets in front of their buildings twice a week and keep the filth until a scavenger or raker came. the penalty for not doing so was 3s.4d., later raised to 10s. any one throwing coal ashes, dust, dirt, rubbish, or dung onto the streets or lanes incurred a fine of 5s. there was a fine of 20s. for hooping or washing any pipes or barrels in any lane or open passage or repairing coaches, sawing wood, or chiseling stones in the streets. pigs kept in or about one's house had to be forfeited. one way that people traveled was to be carried in sedan chairs held up by two horizontal poles with one man at the front ends and another man in back. there were so many sedan chairs and coaches for hire in london that the watermen lost business. all hackney coaches in london or westminster were required to be licensed and marked with their owner's distinctive mark so that complaints could be made. their maximum rate was 10s. for a 12 hour day, and 18d. for the first hour and 12d. for every hour thereafter. licensed coachmen were not allowed to practice any other trade. the coaches paid the commission 5 pounds yearly. hay sold along the road brought 6d. per load, and straw 2d. per load, to the commission. there had to by paid 3d. for every cart load of hay sold at the hay market and 1d. for every cart of straw, to go towards paving and repairing the hay market street. overall, agriculture improved. fields that would have been left fallow were planted with new crops which restored indispensable chemical elements to the soil. at the same time, they supplied winter food for stock. the size and weight of animals for slaughter grew. there was so much stock breeding that it was more economical for a family to buy meat, milk, and eggs, than to maintain its own animals. there was an explosion in the growing of beans, peas, lettuce, asparagus, artichokes, and clover. the demand for food in london and other urban areas made enclosure for crop cultivation even more profitable than for sheep grazing. the government made no more attempts to curtail the enclosure of farm lands. the number of enclosures grew because copyholders were not successful in obtaining the legal security of tenure. but most land was not enclosed. in 1661 in essex, the wages for mowing one acre of grass were 1s.10d.; for reaping, shearing, binding one acre of wheat 4s.; and for threshing a quarter of wheat or rye 1s. wives participated with their husbands in general agricultural chores and did the dairy work including making cheese. every householder kept chickens because egg production was cheap, their market price being only 1s. for a hundred. wives also took care of the gardening work and traditionally kept for their own the cash that came in from garden, dairy, and poultry products. a wife made jellies and preserves when the fruit trees, bushes, and vines were bearing. imported sugar enabled fruit to be preserved as jam in jars sealed with a layer of mutton fat to make them airtight. she was likely to concoct medications from her herbs. meat had to be smoked or salted when there was not enough fodder to keep animals alive through the winter. she saw to it that the soap was boiled and the candles molded. she cooked the daily meals, did the washing, produced cloth for the family's use, and sewed the family's clothing. women had less work and lower pay than men. since most cottages had a spinning wheel, spinning work was readily available to wives. in the 1670s, a female weaver or spinner was paid 2-4d. per day. a domestic servant, who was usually female, was paid 40-80s. a year. men in the trades objected to competition from lower-paid women. aristocratic ladies actively managed their family's household and estates. the only work available to a high middleclass woman who was waiting to get married was to be a governess in another household or a lady-in-waiting to a gentlewoman. children often worked; this was recommended so that they were under the direct supervision of their parents rather than getting into mischief in the village. the mother typically mingled severity with gentleness, but the father did not dare to err on the side of leniency. discipline was by whipping. children were treated as little adults. the lack of a conception of childhood innocence even extended to the practice of adults to tell bawdy jokes in their presence or play with their children's genitals. about 1660, the royal society of london for the promotion of natural knowledge was founded by charles ii, who became its patron. it was formed from discussion groups of the new experimental philosophy. it included the baconians formerly at oxford and cambridge, who were ejected at the restoration, and a group of gresham professors of geometry and astronomy. the royal society met at gresham college. its goal was to compare ideas in mathematics and science and identify specific aims of science. it published scientific reports to make its findings generally known. this was a great improvement over the private correspondence among scientists, which was limited by the use of various languages. charles himself had his own laboratory and dabbled in chemistry and anatomy. similar societies were formed in many places in the world. theologicians warned that scientific research was dangerous. but it's advances improved agriculture, manufactures, medicine, surgery, navigation, naval architecture, gunnery, and engineering. issac newton was a genius, who in his childhood designed and built model windmills, water wheels, water clocks, sundials, and kites. he came from a family which had risen from the yeomen ranks to the gentry. for a few years after graduating from cambridge university in 1665, he secluded himself in the countryside to study. here, using the work of john wallis, he formulated the binomial theorem that expands (a+b) raised to the nth exponent power, where n is an integer. he also worked with numbers that had exponents that were fractions, unending decimals, or negative numbers. certain patterns of numbers, such as the sum of doubling each number in a series as in: 1+2+4+8+...never terminates; the series is infinite. he then developed the notion of a number being the limit of the summation of an infinite converging series of a pattern of numbers, such as the limit of 1+(1/2)+(1/4)+(1/8)...= 2. by considering the state of motion of a mass-point in an infinitely short time under the influence of an external force, he developed rules for finding areas under algebraic curves [integration], such as the hyperbola, and finding tangents to algebraic curves [differentiation], which he recognized as inverse processes. that is, differentiating the integral of a function results in a return to that function. newton discovered that colors arose from the separation, rather than a modification, of white light, that is natural sunlight. he did this using a prism to dissect the white light into its spectrum of constituent colors and then using a prism and lens to recombine the colors to reconstitute white light. the spectrum was the same as that of a rainbow. he determined the angle of refraction of each color by beaming white light through a prism, and then through a hole in a board which isolated one color, to another prism. when he discovered that all colors reflect from a mirror at the same angle, he invented and built the reflecting telescope, which used a parabolic concave mirror and a flat mirror instead of a convex lens, thereby eliminating the distortions and rainbow coloring around the edges that resulted from the refraction of different colors at different angles. he deemed a ray of light to consist of a rapidly moving stream of atomic particles, rather than robert hooke's pulses or christian huygens' waves, because shadows showed a sharp boundary between the light and the absence of light. he reasoned that if light was made up of pulses or waves, it could spread around obstacles or corners as sound seemed to do. he approximated the speed of sound by timing echoes in corridors of various lengths. newton was methodical and combined the inductive and deductive methods of inquiry, first making observations, and then generalizing them into a theory, and finally deducing consequences from the theory which could be tested by observation. he carried mathematization of data from experiments as far as possible. newton theorized that the same gravity force that pulled an apple down from a tree extended out to the moon to hold it in its orbit around the earth. he saw a connection between these movements by imagining a cannon on a mountain shooting a series of cannonballs parallel to the earth's surface. the first shot has only a tiny charge of explosive, and the cannonball barely makes it out of the muzzle before falling to the ground. the second shot is propelled by a larger charge, and follows a parabolic arc as it falls. the next shots, fired with increasingly more propellant, eventually disappear over the horizon as they fall. lastly, with enough gunpowder, a speeding cannonball would completely circle the earth without hitting it. by extrapolating from these ever faster projectiles, he opined that the moon was held in its orbit by the same earth force that operated on the projectiles. he correlated the moon's orbit with the measured acceleration of gravity on the surface of the earth. he put various substances with different masses and weights into the shell of a pendulum and observed that the pendulum had the same period [time for one oscillation] and fell at the same rate as free-falling objects. then he formulated the idea that the ultimate agent of nature was a force acting between bodies rather than a moving body itself. gravity did not act in proportion to the surfaces of bodies, but in proportion to quantity of matter. gravity penetrated to the very center of all bodies without diminution by the body. gravity's force extended to immense distances and decreased in exact proportion to the square of the distance. newton opined that an object moves because of external forces on it rather than by forces internal to the object. he connected the concepts of force and acceleration with a new concept, that of mass. mass is a quantity intrinsic to an object that determines how it responds to forces, such as the force of gravity. the greater the mass of a body, the stronger the force of gravity on it, and the more difficult it is to get it moving. he found that the acceleration of a body by a force is inversely proportional to its mass, and formulated the equation that force equals mass multiplied by acceleration. so if a force acts on a planet, it produces a change in velocity that is proportional to the force and in the same direction as the force. his law of inertia is that any body, persists in its state of rest or of uniform motion in a straight line, unless affected by an outside force. his next law is that when a body a exerts a force on a body b, then b also exerts a force on a which is equal in amount but opposite in direction. this means that forces that operate between different parts of a planet produce no net force upon the whole planet, so that the mass of a planet can be treated as if it is concentrated at a point. these are his three laws of motion. his law of gravitation explains how the whole universe is held together. this law holds that every object in the universe attracts every other object with a single gravitational force that is directly proportional to the product of their masses and inversely proportional to the square of the distance between their centers. newton had first accepted the cartesian system of celestial vortices of aether that swirled the planets and comets around their orbits. he determined that kepler's law that areas were swept out in equal times implied that gravity acts in the direction of a line between the planet and the sun. the gross features of the universe and kepler's observations led to his recognition that the attraction between two bodies decreases inversely in proportion to the square of the distance between them. only one kind of force would satisfy kepler's requirement that the sun was a focus of an ellipse and still be consistent with kepler's law that the square of a planet's period was proportional to the cube of its mean distance from the sun; that was the inverse square law. then he came to accept robert hooke's hypothesis that planets are kept in their orbits by the combination of an attractive power of the sun and of motion in a straight line that was tangential to their orbits. from astronomical data, he calculated this centripetal acceleration of each planet towards the sun to be proportional to the inverse square of its distance from the sun. he also calculated the "centrifugal" accelerations in a straight line. his experiments showed that the centripetal force in a circular orbit was equal to the mass of the body multiplied by the square of its velocity, all divided by the radius of the circular path. he used calculus and differential equations to determine centripetal forces of elliptical orbits, where the distance from the sun, the velocity, and the acceleration were variables. newton showed that his single gravitational force could account for the way free-falling objects descend to the ground, the parabolic trajectory of projectiles, the path of the moon in its orbit around the earth, the course of the tides every twelve hours, the lower densities of the earth's atmosphere at greater heights, the paths of jupiter's moons, the paths of comets, and the elliptical paths of the planets in their orbits around the sun. this determination discredited the previous belief that invisible angels moved the planets. newton proved from his law of gravitation and his three laws of motion the truth of kepler's laws of elliptical planetary motion. newton demonstrated from data collected from the comet of 1680 that comets moved according to his law of gravitation. he showed that the path of a body traveling within the gravitational force of the sun is a circle, an ellipse, a parabola, or a hyperbola. he used the concept of a common center of gravity as a reference point for other motions. the fact that the center of gravity of the solar system was within the body of the sun verified that the sun was indeed at the center of the solar system. newton deduced that the tides were created by the rotation of the earth with bulges of water on the earth's surfaces that were closest and farthest from the moon. the moon "pulled" the water nearest to it with a greater force than average. it "pulled" the water farthest from it with a force weaker than average. these two moving bulges created two tides a day. newton's "principia mathematica philosophiae naturalis", was published in 1687. the established church denounced it as being against the scripture of the bible. newton did not agree with the established church on many points, such as the trinity, and was considered a heretic. he had his own interpretations of the bible and doubted the divinity of jesus. but it was accepted for dissenters like newton to qualify for full civil rights by maintaining an outward conformity and taking the sacrament in the established church once a year. newton was given a royal dispensation from taking holy orders as prescribed by the rules for tenure of fellows of his college at cambridge university. he did believe in a god who created the universe and who had a ubiquitous presence in all space. when catholic king james ii tried to have a catholic monk admitted to the degree of a master of arts at cambridge university without taking the oath of adherence to the established protestant church, so that he could participate in the business of the university, newton was active in the opposition that defeated this attempt. as a result, he was elected to parliament by cambridge. when olaus roemer, a danish astronomer, was applying newton's laws to the paths of the moons of jupiter to make a table of eclipses of jupiter's moons for use in determining one's longitude, he noticed that the eclipses were five hundred seconds ahead of average time at that time of year when the earth and jupiter were on the same side of the sun, and five hundred seconds behind average time six months later, when jupiter was on the other side of the sun. he reasoned that this difference was due to the light from jupiter's moons taking more time to reach the earth when jupiter was farther from the earth, i.e. on the other side of the sun. he concluded that light does not travel instantaneously, but at a certain speed. from the fact that it took 1000 seconds for light to travel the diameter of the earth's orbit, he calculated its speed in 1676. in 1668, christian huygens formulated the law of conservation of momentum [mass multiplied by velocity], which held that when objects collide, they may each change direction, but the sum of all their momenta will remain the same. huygens also recognized the conservation of what was later called "kinetic energy", which is associated with movement. he developed laws of centrifugal force for uniform motion in a circle. he derived the formula for computing the oscillations of a simple pendulum. in 1690, he posited the theory that light consists of a series of waves. it states that all points of a wave front of light in a vacuum may be regarded as new sources of wavelets that expand in every at a rate depending on their velocities. he thought this a better explanation of bending and interference of light than newton's particle theory. in 1661, robert boyle, called the father of modern chemistry, defined an element as a substance that cannot be further decomposed. he distinguished an element from both a mixture, which is easily separable, and a compound, which is not easily separable. he used an air pump he developed and a glass jar to create a confined vacuum space for experiments to find the properties of heat, light, and sound. he noted that burning objects such as candles and coal, when placed in the receiver of his air pump, went out after a time although air was still present. he opined that animals were dependent upon a fresh supply of air to live. he studied the relationship between the volume, density, and pressure of air and gases. he proved by experiment that the volume of a gas at a constant temperature varies in inverse proportion to the pressure applied to the gas. since gas is compressible, he opined that gases must be composed of discrete particles separated by void, and also that basic physical properties were due to motions of particles, or atoms, which was an ancient greek conjecture. this cast doubt on the long-held belief that everything was composed from four basic elements: air, water, fire, and earth. boyle's laboratory at oxford was denounced by the oxford clergy as destroying religion. in 1679, the steam pressure cooker was invented by denis papin from france. he invented the atmospheric engine in 1690. robert hooke helped boyle build his air pump. hooke was thirteen when his father, a minister, died. hooke was a genius with innate mechanical skill and was an able mathematician. he applied a spiral spring to regulate the balance of watches. a lord financed him as a gresham lecturer of geometry for 50 pounds a year. in 1666, he used a pendulum to measure the force of gravity and showed that the center of gravity of the earth and moon is a point describing an ellipse around the sun. in 1667, he explained the twinkling of the stars by irregular atmospheric refractions. he formulated the theory that light is composed of pulses. hooke's law states that the amount an elastic body such as a spring stretches out of shape is in direct proportion to the force acting on it: its tension. he invented the odometer, a wheel to measure distances. he constructed an arithmetical machine. he invented the universal joint, which can move in many angles. his book of drawings of microscopic animals is a classic. he proposed that fossils can be used as a source of information about the earth's history. hooke became rich from his inventions, but this was not known until his death, when thousands of pounds were found in his iron chest. in 1668, wallis postulated the correct theory of impacts of inelastic bodies, based on the principle of conservation of momentum. in 1685, he introduced the first graphical representation of complex numbers. royal astronomer and genius edmond halley, the son of a soap maker, studied tides, magnetism, and the paths of comets and stars. he went on voyages to study the heavens from different positions, thereby laying the foundations of physical geography. he showed that the stars change in position in relation to each other. with newton's help, he calculated the orbit of a comet he saw in 1682 to be elliptical rather than parabolic and then proved it was the same comet that had appeared in 1531 and 1607, indicating it's regularity; it was then named "halley's comet". however, the church of england still embraced the idea that comets and eclipses were evidence of god's wrath. greenwich observatory was built in 1675. halley used a barometer to measure the density of the atmosphere and related its readings to elevations into the atmosphere and to weather. he determined that the cause of the tropical trade winds was the sun warming the tropical air at the equator, causing it to rise and move north as it was replaced by cooler air from the north. this body of air was deflected by the rotation of the earth. he illustrated the tropical winds with the first meteorological map. he made a descent in a diving bell, which was used to try to reach wrecked treasure ships. he studied fossils and perceived them as remnants of living beings that had died long ago, and imagined a succession of living things. halley surveyed the tides and coasts of the british channel for the king in 1701. in 1675, apothecary nicolas lemery divided substances into mineral, vegetable, and animal. he wrote a dictionary of pharmaceuticals. john ray and francis willoughby were friends who traveled together to study plants and animals respectively. john ray started the science of zoology with his edition of francis willoughby's "ornithology" on birds and his own "history of fishes". he also attempted the first scientific classification of animals in his "synopsis of quadrupeds". ray compared anatomies and experimented on movements of plants and the ascent of sap. he knew that fossils were remnants of old animals. ray first suggested the concept of species in classification of animals and plants. he opined that the goodness and wisdom of god was shown not only by the usefulness of animals to man's uses as taught by the church, but also by the adaptation of animals to their own lives and surroundings. the vast array and dispersal of animals found by world explorers all over the world cast doubt on the biblical story of noah putting two of every kind of animal on an ark. the science of botany began with ray's "history of plants" and the researches of robert morrison, who was charles' physician and keeper of his gardens. nicholaus steno, a danish physician, diagrammed six levels of stratification on the earth's surface and demonstrated in 1669 that layers of strata of rock are always deposited with the oldest layers on the bottom and the youngest layers on the top. this began the science of geology. he argued that shifts in the earth's strata caused the formation of mountains. he identified fossils as ancient creatures. the idea that fossils were remnants of dead animals existing before man conflicted with the religious idea that adam's fall began sin and caused death. the idea from fossils that existing species of animals were modifications of predecessor animals conflicted with the religious belief that noah's ark had preserved all the varieties of animals. john aubrey described stonehenge, thus founding prehistoric archaeology. he thought it to be a druid temple. the telescope and compound microscope, which has an objective lens and an eyepiece lens for producing a wide range of magnifications, were further developed. the cellular basis of life was discovered and described by robert hooke. nehemia grew, the son of a grammar school master who became a physician, observed and drew plant anatomy, including leaves, flowers, fruits, seeds, ovules, pollen grains, and stamens. he was the first to observe the existence of plant sexuality. italian marcello malpighi, a physician, used the new compound microscope to study human skin, spleen, kidneys, and liver and also compared the livers of several types of animals. he discovered capillaries linking the arterial and venous circulation in the lungs. dutchman anton van leeuwenhock, a cloth manufacturer who made microscopes to inspect the quality of cloth, turned them to use in understanding the life cycles of mites, lice, and fleas. he correctly described human blood cells. when he found what he described as tiny animals (bacteria, protozoa, and rotifers), he sent clear descriptions of them to the royal society in london as proof against the theory of spontaneous generation, which held that lower forms of life could arise from nonliving matter. this started the science of bacteriology. with the discovery of the egg in the female reproductive system, the status of women was lifted. physician thomas willis, son of a farmer, dissected brains of men and animals to study the anatomical relations of nerves and arteries. excess urine had been associated with a wasting disease. willis identified diabetes mellitus with excess of urine that was sweet. physician thomas sydenham, son of a gentleman, observed epidemic diseases of london over successive years, thus founding epidemiology. he also furthered clinical medicine by emphasizing detailed observations of patients and maintaining accurate records. he wrote a treatise on gout and identified scarlet fever. he introduced a cooling method of treating smallpox. but he still relied on the big three treatments: bloodletting, purging, and sweating. bloodletting was to draw off bad blood so that it could be replaced by a better fluid. another treatment used was cupping, whereby a vacuum was created by heated glass cups to draw blood to the surface of the skin. john locke performed one of the first successful operations draining a kind of abscess of a man's liver. it was common for people who felt ill to take a laxative and rest at home. in 1690, physicians opened the first dispensaries, which gave treatment and medicine together, to take business away from their rivals: the apothecaries. london's apothecaries were released in 1694 from jury service and serving as constable, scavenger, or other parish or ward office because it was necessary that they be available to attend the sick at all times. peruvian bark which had quinine as its alkaloid had been introduced as a proven cure for the ague, a fever with chills usually due to malaria, in 1653. the english ceased to believe in holy wells, but went to spas such as bath for treatment for disease. there was more bathing because private homes in towns now had indoor baths. the public baths came into disuse. for childbirth, only rich women were attended by physicians. most physicians used talismen such as the eagle stone at deliveries. caesarian section almost always led to the death of the mother. midwives were licensed by the church and could baptize babies. jane sharp wrote "the midwives book" with anatomical illustrations. women over thirty had fewer children and the last child born was at an earlier age than before. this was in part due to birth control such as coitus-interruptus, long breast-feeding of a current child and/or the taboo against sex if the wife was still breast-feeding. rich women often employed wet-nurses to breastfeed their babies. babies seldom thrived, or even survived, without out a regular supply of breast milk. john locke, an oxford don, physician, and son of an attorney, expressed a view that the monarchy was not based on divine right, but rather on a contractual relationship with the people, who were reasonable, free, and equal by nature. this idea was first adopted by revolutionists and then became accepted as orthodoxy. also, he articulated the right of resistance, the supremacy of legislative assemblies, and the responsibility of rulers to answer to their subjects. he theorized that men turn to forming a civil government when there is a need to protect accumulated property from some unreasonable men. this, along with the protection of life and liberty, was the primary function of government, before royal pleasure, national pride, or foreign conquest. he wrote theories on the interaction of supply, demand, interest rates, rents, coinage, and foreign exchange rates. he believed that interest rates should be the natural ones determined by market forces rather than by the legislature, especially if there was an attempt to lower interest rates below their natural rate, which was not only undesirable but easily circumvented. he thought that attempting to legislate contrary to natural economic laws, e.g. prices, was doomed to failure from unexpected consequences. he agreed with most mercantilists that by maintaining a large inflow of precious metals through consistent export of surpluses in foreign trade would lead to low interest rates, increased trade, increased capital stock, high employment, and high prices, and therefore a healthy economy and enrichment of the nation. locke thought that knowledge comes primarily from experience, i.e. sensation and reflection, rather than from innate ideas placed in the mind by god, so that observation and experimentation are necessary to find truth. he theorized that propositions of truth have probability rather than certainty. probable propositions included opinion, belief, and revelation. his "thoughts on education" was a great book on the formation of character. locke also advocated the use of a large field for inventing labor-saving and economic devices for agriculture. he espoused freedom of thought in "letters on toleration" and wrote "an essay concerning human understanding", which described how the mind functions in learning about the world and which attempted to reconcile science and christianity. he was a great admirer and friend of newton and they shared religious views. he was also a member of the royal society. at oxford and cambridge universities, there were the most enlightened theologians, classicists, orientalists, philologists, mathematicians, chemists, architects, and musicians. there were professors of anglo-saxon, hebrew, and arabic. john locke's influence caused modern philosophy to supercede traditional scholasticism. there were no more disputations to qualify for degrees. some of the students were the sons of noblemen and sat at meals with the heads, tutors, and fellows of the colleges. most students were the sons of landowners, clergymen, professional men, or prosperous men of business. they were known as the gentlemen commoner students. the few poor students were known as servitors and paid for their education by menial work. corporal punishment ceased. instead there were fines, suspension, and expulsion. fellows of colleges had common rooms for drinking and smoking together as they had done in taverns outside college walls. the king had authority to grant licenses in sell or give land in perpetuity, to encourage founding and augmenting colleges and schools. the two universities were vested with the presentation of benefices that had belonged to papists. english nonconformists such as presbyterians were excluded from oxford and cambridge universities, so they were educated at glasgow in scotland. grammar schools were blamed for the past civil war by educating too many people above their station, so ecclesiastical control now stifled them. a few dissenting schools were established. charity was given to schools for children of the poor for placement as apprentices, but not to educate them above their stations. in the 1670s, about 70% of males in london were literate. by 1680, illiteracy was a special characteristic of the poor instead of a characteristic of the vast majority of common people as in 1580. fountain pens came into use. many books written tended to be about the author's experiences, for instance samuel pepys' "diary", gilbert burnet's "history of my own times", john evelyn's lifelong diary with vivid descriptions of striking events of the day, and nonconformist celia fiennes' description of her tour of england on horseback. there were many political biographies. historians did not yet study history as a continuous process, but narrated self-contained stories to instruct by example. william fleetwood wrote about economic history in "chronicon preciogum". george hicks put together a "thesaurus" of the northern languages. thomas hyde wrote on ancient persian religion. john spenser compared jewish rites with those of other semitic people, thus starting comparative religion. richard bentley, william's librarian, wrote a "dissertation" on the ancient greeks. he compared the ancient greek life with modern life. he also confuted atheism on the newtonian system. a translated version of "critical history of old testament" by frenchman richard simon identified the old testament as history instead of divine revelation. john milton wrote "paradise lost", which retells the biblical story of the creation and the fall of adam and eve against the backdrop of satan's rebellion and expulsion from heaven and emphasized god's justice in spite of everything. the poem deals with the puritan struggling against evil and the problem of sin and redemption. it has a cold and severe conception of moral virtue and stoical self-repression in its characters. there is no sympathy with the human condition. reading this book made the english more serious, earnest, and sober in life and conduct and more firm in the love of freedom. john bunyan wrote "pilgrim's progress" in which a tinker takes a journey to find the everlasting city of heaven and on the way meets people who try to harm him. but he derives strength from his adversities. the journey is a metaphor for the christian soul trying to find salvation. it is puritan in its sympathies and has insights into human nature. john dryden wrote on large social, political, and humanistic issues, often by political satire. william congreve wrote plays such as a comedy on manners. william wycherley wrote cynical satires and portrayed folly, affection, and vice. john vanbrugh wrote plays satirizing london high society and social institutions. john toland wrote "christianity and mysterious" on deism. "puss in boots", "red ridinghood", and "cinderella" became available in print. there were many female poets, bookwriters, and playwrights. anne finch, later vicountess conway, wrote the philosophical book: "principle of the most ancient and modern philosophy" to reconcile the new science with christian belief. in it every creature had a body and a spirit. mrs. aphra behn wrote "oroonoko", one of the first novels. basua makin, governess of the little sister of charles ii wrote an essay to revive the education of women, arguing that women's activity in wartime showed that they were fit to be educated. elizabeth elstob, who studied teutonic languages, was one of the founders of women's education. mary astell proposed a college for women. some women painted portraits. there were rigid censorship acts from 1662 to 1695. the first required that no one could print a book without first registering it with the company of stationers of london and having it licensed by appropriate authority: common law books by the lord chancellor or the lord keeper of the great seal, affairs of state and history books by the secretaries of state, heraldry books by the earl marshall or kings of arms garter, university books by the chancellor or vice chancellor of either of the universities, and all others including divinity, physics, and philosophy by the archbishop of canterbury, or bishop of london. books could be imported only into london and not sold until approved by the archbishop of canterbury or bishop of london after being opened and viewed by a scholar appointed by these bishops and a representative of the company of stationers. if heretical, seditious, scandalous, schismatic or otherwise dangerous or offensive, the importer could be punished. no one could print or import copies of any books without consent of the owner with right by letters patent. the penalty for not doing so was to forfeit 6s.9d. for each such book, of which the king would receive one half and the owner one half. printers had to set their own name to the books they printed and also the name of the author or else forfeit such book. only freemen of london who were members of the company of stationers could sell books. the company of stationers had the authority accompanied by a constable to search all houses and shops where they knew or had "probable reason" to suspect books were being printed. they could search houses of persons of other trades only by special warrant. they could examine books found to determine if they were licensed and, if not, to seize them. justices could imprison offenders. the first offense by offending printers was to be punished by suspension from printing for three years, the second offense by permanent disallowance from printing, fine, imprisonment, and corporal punishment not extending to life or limb. this statute was enforced by frequent prosecutions, such as of publishers of pornographic books. the only newspapers to appear between 1660 and 1679 were official government sheets. but in 1695 the requirement to license publications, including newspapers, was abolished, thereby giving some freedom to the press. locke had argued for this freedom, stating "i know not why a man should not have liberty to print whatever he would speak and to be answerable for the one just as he is for the other..." in 1702 the first daily newspaper in the world came into existence in england. the stationer's company monopoly of printing also ended in 1695. printing was not regulated and no longer criminal just because it was unauthorized. printing could now be done in other places than london, york, oxford, and cambridge. the rich got richer and the poor got poorer. many successful merchants and manufacturers bought landed estates and established a line of country squires or baronets or even peers. the fashion started in the nobility and the richest mercantile families that their wives should become ladies of leisure. for workers though, there was constant underemployment. in periods of economic crisis industrial workers lost their jobs. much work was seasonal. anyone who could work most of the time was fortunate. laboring and outservants, who comprised one fourth of the population, and cottagers and paupers, who comprised another fourth of the population, had to spend more than they earned. the poor rate collected from the parishes for the cottagers and paupers was 3d. per week. there was an agricultural depression that was deepest in the 1680s after the collapse of a boom. it was the only bad depression experienced in peace time. there was famine in 1698. any person receiving relief from any parish and his family members cohabiting with him was required to wear a badge with a "p" which identified his parish. this was to differentiate them from idle, sturdy, and disorderly beggars who were not entitled to relief. there were more poor people and, despite the poor laws, many became rogues or vagabonds or starved to death. many went from parish to parish to build cottages and consumed all the wood there and then went to another parish. so the parishes were allowed by statute to remove any person coming to settle in any tenement under the value of ten pounds who was likely to be chargeable to it. they were then removed to the last parish were they had resided for at least forty days. excepted were people temporarily moving to another parish to work at harvest time. the overall effect was to decrease the mobility of people. but a later statute permitted greater movement of poor people by allowing those who were poor for want of work to go to another parish where labor was wanted. they had to bring a certificate of their present parish membership to the new parish, where they could settle if they rented a tenement worth ten pounds a year or served in a parish office. later, settlement had to be given to inhabitants paying its parish's rates, and unmarried inhabitants hired for one year, and apprentices bound by indenture. but parishes were displeased with the requirement to give settlements to these people because they feared they would become poor and need parish assistance, thereby increasing the rates to be paid. parish poor houses were converted into spinning schools to obtain an income. parishes of large towns were combined to set up large workhouses, where the poor could be set to unskilled manufacture, but the managers lacked the character and education to make them work. because prisoners often died before trial and the poor prisoners became instructed in the practice of thievery in prison, they were set to work on materials provided to them at public expense. no parish was rated at more than 6d. per week for such. the president and governors of corporations oversaw rogues, vagrants, sturdy beggars, and idle or disorderly persons working in corporations or workhouses. assessments were made for building and repairing gaols in order to maintain the health and safe custody of the prisoners. also, gaol fever, a virulent form of typhus, was so prevalent in the large prisons for criminals and debtors that it frequently spread through the adjacent towns. during some assizes, it killed sheriffs, lawyers, and justices. in 1692, london lands were taxed for the relief of orphans. churchwardens could seize the goods and chattels of putative fathers and mothers deserting bastard children. >from 1691 to 1740, societies for the reformation of manners prosecuted poor people for moral offenses. all hackney coaches and stage coaches in all the realm became required to be licensed. the turnpike system came into use. tolls were paid for road upkeep and repair by private companies. the local parishes ceased to have this responsibility. john ogilby wrote the first road book based on actual surveys of the roads. stage coaches cost a shilling for every five miles and went 40-50 miles a day. the trip from london to oxford was twelve hours. the company of coach and coach harness makers was founded with the consent of the king. the body of a coach hung from the frame by leather braces. one axle pivoted for turns. plate glass was used in the windows. rivers improved so that most places were no more distant from navigable waters than a long day's haul on land. the several post offices were put under the authority of one postmaster general appointed by the king for the purpose of speed and safety of dispatches, which were carried by horseback. one sheet letter going less than 80 miles cost 2d., and more than 80 miles, 4d. when the army was disbanded after the restoration, its officers and soldiers were allowed return to their trades and their apprenticeships without serving the usual seven years. parishes were required to provide for poor and maimed officers and soldiers who served charles i or charles ii. the royal hospital founded by charles as a home for veteran soldiers opened in 1692. greenwich palace was converted to a hospital for seamen and their widows and children to encourage men to become seamen: mariner, seaman, waterman, fisherman, lighterman, bargeman, keelman, or seafaring man in the king's navy. also, children of disabled seamen were to be educated at the expense of the hospital. charles retained one regiment from which he started a small standing army, which slowly increased in size ever after. the army was primarily mercenary, as it had been in medieval times, with officers buying their commissions. colonels were the proprietors of their regiments and captains were the proprietors of their companies. the soldiers were ill mannered, swearing and cursing and stealing, sometimes from peoples' homes, and intimidating people with their swords. the bayonet was invented to attach onto a gun, which were muzzle-loading with a match lock. so pikemen with their long spears became obsolete. hand grenades and small explosive bombs came into use about 1670. explosives were also used in mines. mines for coal became deeper as coal replaced the use of increasingly expensive wood charcoal for brewing and for brick, glass, and china manufacture. flooding of coal, tin and copper mines became a problem. in 1698, thomas savery invented the miner's friend, a practical atmospheric steam engine without a piston. there was resort to many devices to fund wars. the land tax was still the primary tax. the customs and excise taxes were often extended to more goods and wares. sometimes there were duties imposed on marriages, births, and deaths. also, hawkers, peddlers, and other trading persons going from town to town to other men's houses on foot or on horse carrying wares had to buy a license. there were also loans from privileged companies such as the bank of england, east india co., and the south sea co. commissioners were appointed to take and state the account of all money in the public revenue. this discouraged the prevalent corruption of government officials and thereby the people were encouraged to pay their taxes. the goldsmiths loaned money to the king and to private persons and to the exchequer. receipts from goldsmiths for storage in strong boxes had become a de facto paper currency. but when the goldsmiths had no more money to lend, the bank of england was founded in 1694 under whig auspices to provide money for war. it was the first institution to issue notes in excess of its total deposits. however, it was not allowed to lend money to the crown without the consent of parliament. it was incorporated as the first english joint-stock bank and had about 1,300 shareholders. these original subscribers were individuals from london from many walks of life, including well-to-do tradesmen and about 12% of whom were women: wives, widows, or spinsters. not many corporations were original subscribers. holders of at least 500 pounds could vote, of 2000 pounds could be directors, and of 4000 pounds could be governor. the bank issued notes payable to bearer and discounted bills, but these were not legal tender. it lent at 8% to the crown and occasionally to corporations. money was also borrowed by offering annuities on single lives. this was the first time the government borrowed directly from the public on a longterm basis. in 1695 there was inflation due to over issue by the bank because of inexperience, pressure from government, and the bank's greed for business. after a dividend of 5% in 1695, the next year there was no dividend and so the bank stock price fell. in 1696, five pound and ten pound short term bonds were sold to the public. also in that year was the first run on the bank. this occurred two days after clipped money lost currency; people wanted the new recoined money, but the mint had not supplied the bank with sufficient supplies. interest instead of cash was given for notes. cash was short for months. the bank's credit was much shaken. it was then given a monopoly so that its notes would not have competition. thereafter, its dividends were good about 12% per year. because of its monopoly, its dividends were about 3% above the current going rate of interest. about this time, exchequer bills, with interest, were started by the exchequer and circulated by the bank of england. they were frequently endorsed many times by successive holders. the bank simply took over from the goldsmiths its main everyday business of deposit; running cash note [cashier's note, specie note, cash note], which was payable on demand and normally did not bear interest; and drawn note [precursor to the check, but not on special paper]. the bank gradually convinced many of its clients to use its "check" [cheque] paper when drawing. the check paper was unique to the bank and embellished with distinctive scroll work to serve as an obstacle to fraud. over time the running cash note tended to be for round sums of at least twenty pounds and multiples of five pounds. the bank of england had a monopoly on issuing notes in the london area. country banks arose and issued bearer notes payable on demand and interest-bearing notes in their areas. the bank of england gave to its depositors the service of paying annually to a designee without further order. a decision of the common law courts held that bills of exchange (written orders to pay a given a sum on a given date) were transferable to other people by successive endorsements. so long distance payments no longer had to be made in coin, with all the dangers of highway robbery. the financial revolution of the 1690s meant that the merchant elite could invest in government bonds or company bonds at 5-6%, or london leases at 10%, as opposed to income from landed estates, which was under 3%. shareholders were no longer personally liable for company losses. interest on loans was no longer considered sinful as long as it was not oppressive. the greater ability to borrow spurred the growth of capitalism. all brokers and stock jobbers in london and westminster of bank stock, bank bills, shares and interests in joint stock must be licensed by the mayor, which shall necessitate their taking an oath to exercise their office without fraud or collusion to the best of his skill and knowledge as of 1697. this is to avoid the collusion of fixing values to their own advantage. compilations of tables of mortality originated the science of life-statistics. this made life insurance possible. but it was administered by ad hoc offices rather than companies and was not reliable in making payments. william petty made a statistical study of economics and determined that the basic values of an economy derive not from its store of treasure, but from its capacity for production. trade was studied empirically by statistics by new offices such as the inspector general of imports and exports. charles instituted a hearth tax of 2s. per year in 1662, with constables and officers authorized to verify the number of hearths and stoves in houses. it was repealed in 1688 because it could not be enforced except by exposing every man's house to be entered and searched at pleasure by persons unknown to the people, which was oppressive and a badge of slavery. by bribes, charles built up a body of support in parliament which could be relied upon for a majority. they came to be called "tories" by their opponents. "tory" had been a term of abuse for irish catholic bandits. the tory and whig groups were known by their disagreement over the authoritarianism of the crown. the tories were sympathetic to the doctrine of divine right and favored a doctrinally high church. the tories represented landed property and the established church, and usually wore blue in contrast to the purple of royalty. many royalists became tories. the whigs refused to accept the sacrosanct character of the monarchy. the whigs opined that government depended upon consent of the people and that the people had a right of resistance. they subordinated the crown to parliament. the whigs represented the dissenters and the mercantile classes, and often wore red. many former puritans became whigs. "whig" had been a term of abuse for scots presbyterian rebels and horse thieves. the gout and venereal disease were common among political leaders. a primitive condom just introduced to the aristocracy from france helped deter syphilis, but was uncomfortable and unreliable. under charles ii, the treasury as a supreme financial body separated from the exchequer as a depository of revenue. a gold guinea coin was issued. from 1690, government policy was controlled by specific appropriations. money bills had to originate in the commons, and could not be amended by the house of lords. boards became independent of the king's privy council and answerable to the secretary of state. in the 1680s, charles compelled some of the livery companies in london to give up their charters to him and he called in many corporation charters of boroughs whenever some light excuse could be found to justify it. this was done by the use of the writ of quo warranto before a court. in london he had the tory mayor revive an ancient custom of selecting a sheriff by drinking to him at the annual feast. two tory sheriffs were installed into office. all these actions gave the king a voice in selection of the officers of london and boroughs, since royal commissioners would then determine who the officers would be. this was to assure london's representation in parliament by crown loyalists as london had been whig. it also allowed influenced selection of sympathetic jurors. criminal seditious libel was brought into the common law courts in 1664, when benjamin keach was tried for writing a book containing contradictions of the doctrine of the established church. he wrote against infant baptism and asserted that laymen might preach the gospel. the justice intimidated the jury to find him guilty. he was sentenced to be fined, to spend two hours in the pillory in two successive weeks, and his book to be burned before his face. he was to be imprisoned until he found sureties for his good behavior and renunciation of his doctrine and for his future appearance in court. juries were loath to find anyone guilty of seditious libel. james ii succeeded charles ii to the throne and fostered roman catholicism by appointments and by attempting to suspend laws unfavorable to catholics. he commanded all bishops to read in the churches his declaration of indulgence exempting both catholic and protestant dissenters from all penal statutes based on religion. seven bishops refused to obey and jointly petitioned him, stating that his action was illegal according to parliament. he prosecuted them for seditious libel in the petition. the jury found them not guilty. james discharged the two justices of the five who had rejected the seditious libel doctrine which had been created by the star chamber court. this roused the whigs and tories in turn to discharge him by joining in inviting protestants william of orange and mary to take the throne in his place. james was effectively chased out of england by william's advancing army in the glorious revolution of 1688-9, which took away the powers of final authority from the king, but without transferring them to any other body. a "bill of rights" stated that 1. the king may not suspend laws or dispense with them without consent of parliament. 2. the establishment of a court of commissioners and like bodies for ecclesiastical causes is illegal. 3. the king may not levy money or extend an authorized levy without consent of parliament. 4. subjects have a right to petition the king without prosecution. 5. the king may not raise or keep a standing army within the country in time of peace without the consent of parliament. 6. protestants may have arms for their defense as allowed by law. 7. the elections of members of parliament should be free. 8. the freedom of speech or debates or proceedings in parliament should not be impeached or questioned in any court or place outside of parliament. 9. excessive bail should not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted (so no more men were whipped to death) 10. jury selection should not be tampered with, and jurors who try men for high treason should be freeholders. 11. all grants and promises of fines and forfeiture of particular persons, before conviction, are illegal and void. 12. parliament should be held frequently for redress of grievances and for the amending, strengthening, and preserving of the laws. 13. all protestants may freely exercise their religion and the king will maintain the protestant religion and the law and liberty of the realm. the right of the peoples' representatives to select and depose the king and to change the order of succession was established. there was no divine right or hereditary right to the crown. an english monarch was created by an act of parliament. the king still called and dissolved parliaments, except that parliament continued for six months after the death of a king. from 1689, parliament sat every year. freedom of speech for members of parliament was established by a resolution overturning a king's bench felony conviction of sir john elliot. by the act of settlement of 1701, no officer or pensioner of the king could be a member of parliament. all resolutions by the privy council had to be signed by the members consenting to them. no one born outside the realm could be a member of the privy council or of parliament, or could have any civil or military office or place of trust, or any grants of land or tenements from the king. justices served during good behavior instead of at the pleasure of the king. after the glorious revolution, tories tended to accept of the whig principles of limited constitutional monarchy instead of rule by divine right. under william and mary, the ministers were first chosen by them but could be impeached by the commons and then removed by the parliament. the commons removed anyone who disagreed with them as soon as he made a mistake. but the king could pardon anyone convicted by parliamentary bill of attainder. this was inconsistent, so no one was allowed to plead pardon by the king in an impeachment by the commons. thus parliament gained control of who would be ministers. the glorious revolution favored the capitalists and the commercial magnates even though it had been started by the landed families, with whom they now intermarried. there were companies in the fishing, silk, baize [a coarse wool], sugar, rope, paper, iron, hardware, gunpowder, saw milling, and pottery trades. the largest pottery workshops employed about six men. one man shaped the pots, another made the handles and put them on, while the others did the decoration, the glazing, and the firing. new companies could be formed without royal or parliamentary consent. there were no more commercial monopolies. regulated companies declined. the merchant adventurers lost their last monopoly privileges; their entrance fees were abolished. their method of limiting the volume of their exports of english cloth to germany to keep up prices was obsolete. now they tried to capture the market by selling cheap. there were more joint-stock companies and on a larger scale. they also no longer restricted output to keep prices high, but geared to export many inexpensive goods. the stock exchange was incorporated about 1694. the domestic or "putting out" system came into use. in this system, the worker usually owned his own machinery and the capitalist owned the material, which he put out to the worker at home. the merchant manufacturer bought raw wool and had it carded, spun, woven, fulled, and dressed at his own expense. some farmers became spinners in the winter when outside work was impossible. the manufacture of nails was also done by this system. accordingly, the guilds and municipal corporations in towns ceased to control the recruiting, conditions of work, and pay of industries. new industries for the manufacture of silk, paper, and cutlery were organized on capitalist lines rather than being subject to guilds. that is, production was controlled by men with money and the means of manufacture. only a quarter of 200 towns had any organized guilds at all. the growing town of birmingham was not a chartered borough, so never was encumbered with guild regulations. overall, the guild and apprentice regulations were effectively enforced only in agriculture work. artisans became known as tradesmen. work was usually irregular, some seasonal. in bad years, when a worker had to borrow money, he used work tools, such as his loom, as security. in this way, one's work tools often became the property of a merchant. some merchant clothiers also owned a fulling mill and a shop where the cloth was sold. the capitalists first became owners of the materials, then of the implements, and then of the work places. but production was still confined to the known wants of its habitual market. men used to working at home were generally not inclined to go to work in a factory. so there was an assortment of unskilled factory labor, such as country people driven from their villages by the growth of large estates, disbanded soldiers, and paupers. they had to be taught, trained, and above all disciplined. in 1670, vauxhall glass works were opened with workmen brought from venice to blow their fine glass and make mirrors. the capitalist organization of the mining, glass manufacture, salt, soap, wire and other monopolized industries was made possible only by government support. >from the mid-1500s to 1700, coal production increased fourteen times. sir ambrose crowley, an iron maker with coal works, established disability and medical benefits and pensions for his workers. smiths used trip hammers powered by watermills which turned axles with cams on them. they made iron gates, fences, balconies, and staircases with hammer, anvil, and chisel. cast iron was made by running liquefied metal into molds. this was harder but more brittle than the tough but malleable wrought iron. tinkers went from house to house to repair metal items such as pots and pans. salt and glass manufacture expanded. glass drinking vessels were in common use. mirrors of blown plate glass were manufactured in england. some plate glass by casting was imported. plate glass was a large and strong glass piece, which was formed by the liquid glass being poured on a table. this glass was not distorted, so mirrors could be made perfectly reflective. then plate glass for coaches, mirrors, and windows became manufactured in england; this new industry was organized on capitalist lines. the east india company had about half the trade of the nation. its shares were frequently bought and sold. it responded to anger over its semi-monopoly status by granting liberty to all english subjects below the age of forty to live in its indian settlements and to trade practically everywhere. bombay, india became subject to the east india company. charters gave the east india company the right to coin money, to exercise jurisdiction over english subjects, to levy taxes, to build and command fortresses, to command english and indian troops, to make peace and war, and to enter into alliances with indian rulers. the company always paid high dividends and the market price of its shares generally rose. 100 pound stock was worth 130 pounds in 1669, 245 pounds in 1677, 280 pounds in 1681, 360 and even up to 500 pounds in 1683, and then fell to 190 pounds in 1692. in 1693 a new charter for the company included loss of monopoly status by resolution of the commons. with this resolution, parliament assumed the right of regulating commerce, now no longer the king's province. thereafter the commons regulated trade with india and determined who could participate in trade there. political issues developed, which initiated corruption at elections by entertainment and bribes to candidates, which were later proscribed. the trade opened up to many more traders and investors. ordinary investors came to include women and quakers. when there was a surplus of grain, it was exported. about 1696, the king set up a board of trade of eight paid members and great officers of state, who nominally belonged to it, and a staff. this was to achieve a favorable balance of trade. for instance, it imposed tariffs to protect internal markets and put restraints on imports of goods producible in the country, e.g. live cattle, dairy products, and woolen goods. it also restricted the export of raw wool. england led the way in protectionist measures. exports included grain, silk, metal wares, foodstuffs, lead, and tin. cloth and manufactures were exported to america. dyeing and dressing of cloth became the norm and undressed cloth exports fell sharply. imports included linen, flax, hemp, timber, iron, silk (raw, thrown, and woven), wine, brandy, fruit, coffee, chocolate (served as a drink or used in cooking), cauliflower, and oil. >from america came molasses, sugar, tobacco, and dyes. sugar was in great demand for tea, coffee, and chocolate. the east india company imported calico, silk, pepper, spices, china tea, potions, and saltpeter. tonnage of english shipping doubled by 1688 exports and imports increased 50% by 1700. parliament required an oath of allegiance to the new sovereigns william and mary from all those in public functions, including the clergy. by extending this rule to the clergy, parliament asserted a supremacy of parliament over the church. it also asserted a supremacy over the king by requiring all monarchs to take a coronation oath promising to govern according to the statutes, laws, and customs of parliament, to make judgments with law and justice in mercy, and to maintain the protestant religion established by law. drinking of gin, which had first been made by a flemish physician, became popular under king william, who was dutch. the year of his accession, the gin monopoly ended. england competed with other nations for land in the new world. carolina, named for charles ii, was colonized for commerce in 1663. the episcopal church, an analogue of the church of england, was established there by law. the whole coast became english after war with the netherlands gave new york, named for charles ii's brother the duke of york, and new jersey to england in 1667. presbyterians and baptists fled from religious tests and persecutions in england to colonize new jersey. for free passage to the english colonies, people became indentured servants, agreeing to serve the master of the ship or his assigns with a certain kind of labor for a term of a few years according to a written contract made before departure. also, various statutes made transportation to any part of america available to any person who would pay for his transportation, for a term of years, usually seven, as a new possible penalty for offenses. in 1636, harvard college was founded in new england to advance literature, arts, and sciences, as well as to train ministers. some american colonists sent their sons to be educated at the inns of court in london. in 1682, quaker william penn, son of an admiral, founded the colony of pennsylvania for quakers in a "holy experiment" in political and religious freedom. the king had granted proprietary rights to this land to him to discharge a crown debt to his father. when penn refused to take off his hat before king charles and asked why charles took off his own, charles, unruffled, replied that "it's the custom of this place that only one man should remain uncovered at a time". the pennsylvania charter of 1701 went beyond magna carta and england's law in guaranteeing right to counsel and giving a right to defendants to summon witnesses in all criminal cases. it gave penn absolute authority and he established liberty of conscience (freedom of religion) and freedom from arbitrary arrest. in 1751, some quakers founded a small hospital in pennsylvania as an asylum for the insane, where they would be treated humanely. proprietary colonies, in which an individual or syndicate held under the crown a sort of feudal overlordship, were founded in america: namely, virginia, maryland, carolina, new york and new jersey in 1663, and pennsylvania and delaware in 1682. new hampshire was made a royal province in 1680 to cut off the expansion of massachusetts, which had been avoiding the trade laws. these colonies were distinguished from the corporate colonies of massachusetts, plymouth, connecticut, and rhode island, which made their own arrangements for internal government without a royal executive. charles persuaded the chancery court to declare the charter of massachusetts void; it was given a new charter in 1691 which made it a royal province. new york was made a royal province in 1691. maryland's proprietor gave way to a royal governor in 1692. soon all colonies except rhode island, connecticut, pennsylvania were royal provinces, with governors nominated by the crown. this bringing of union to the colonies was done for maintenance of order, to coordinate defense, and to enforce trade laws. in 1670, the hudson's bay company was incorporated to engage in fur trade with indian trappers in the hudson bay and to find a northwest passage to china. in 1701 the founding of the "society for the propagation of the gospel in foreign parts" by the church of england created many missionaries in the colonies, where they called their churches "episcopalian". increase mather and his son cotton mather were puritan ministers in boston. increase was for a time the president of harvard college and participated in obtaining the new charter of massachusetts of 1691. he and his son tried to maintain the principles of the puritan founders of massachusetts, which included the theories of diabolical possession and witchcraft. but the thought of presbyterians, anglicans, and baptists became influential also. in 1692 in the small town of salem, massachusetts, some hysterical girls showing strange spasms and sounds charged they had been bewitched by certain other residents. victims were deceived, flogged, or tortured into forced confessions and then excommunicated from the church. they were then hanged and their property confiscated. one man endured being pressed to death for refusal to plead so that his property would be inherited by his family rather than confiscated due to being convicted. eventually, some prominent citizens including judges were accused. then the more thoughtful people began to doubt the whole phenomenon and admitted error. the excommunications were revoked. cotton mather came to accept newton's science and advocated inoculation. he encouraged puritanism into a simpler piety and charity. this influenced american protestantism toward a generalized concern with good works, morality, and social leadership. the law any sale of land or lease or estate of freehold or copyhold shall be in writing and signed. an interest in land given orally shall have only the force of estates at will. all contracts for sale of goods or merchandise for the price of at least 10 pounds shall be in writing and signed by the parties or shall be accompanied by part payment or partial acceptance of the goods. this is to deter fraud. this statute caused many small freeholders, including yeomen, who paid rent by custom to be dispossessed. mortgagees can hold the land of any mortgagor who borrows money upon security of the land or obtains another mortgage without prior notice to the initial mortgagee. the mortgagor has six months to pay off the mortgage and all interest and charges or vacate the land and lose his equity therein. but a widow's dower will not be affected if she did not join with her husband in the mortgage. if rent is not paid in a reasonable time, the renter's goods and grain may not only be distrained, but sold. one coparcener of a joint tenancy or tenancy in common may have a court partition the property without the presence of other coparceners, because such coparceners are often difficult to find. this is to avoid wasting of land lying uncultivated and unmanured. after the intestate death of a father of any sons or daughters without wives or children of their own in the life time of their mothers, the mother and every brother and sister shall share equally except the customs of london and york shall not be affected. administrators have to make an inventory. they have to account on request by an interested person. they must be bonded by two sureties. executors and administrators of estates of deceased persons must pay the debts of the deceased person rather than waste or convert the goods and chattels to their own use. creditors may recover their debts from heirs or devisees of the will of a debtor. men gone beyond the sea who could not be accounted for were deemed dead after seven years, so their life estates could be terminated. whereas lawful games are not to be used as constant callings for a livelihood, and young people are deceived and debauched and their money taken, anyone "winning" money by deceitful or fraudulent gambling shall forfeit three times his "winnings". when a bill of exchange drawn to at least five pounds is not paid on demand at the time it is made payable, the person who accepted it may make a protest in writing before a notary public, which shall be served on the maker of such bill, who must pay it and all interest and charges from the date of the protest. but if a bill of exchange is lost or miscarried, another shall be given in its place. no one may take more than 6 pounds in interest for a 100 pound loan. persons seeking election to parliament may not give or promise money, meat, drink, entertainment, present or gift to any elector. because the gaols were full of people in debt due to the late unhappy times such as the london fire, all prisoners for debt were to be released upon taking an oath that they had no property over ten pounds nor had disposed or conveyed property to defraud creditors. creditors not wanting them released had to contribute to their maintenance in gaol. the making or selling of fireworks is forbidden or else forfeit 5 pounds. firing or throwing such from one's house onto or across the street is a common nuisance with a penalty of 20s. this is to avoid the loss of life and of eyes. treason to the king is to compass, imagine, or intend death or any bodily harm tending to death, or maiming or wounding, or imprisonment, or restraint as well as trying to depose him or levy war against him. also included is printing, writing, preaching, or malicious speaking. traitors shall suffer death and forfeiture as in high treason. any malicious and willful burning or destroying of stacks of hay, grain, or barns, or killing any horses, sheep, or cattle at nighttime shall be felony and punished by transportation to the american colonies for seven years. any person apprehending a thief or robber on the highway will be rewarded 40 pounds from the local sheriff, to discourage the many robberies and murders which have made travel dangerous. also, executors of persons murdered while trying to apprehend a robber shall have the reward. no more than 20 people may petition the king nor more than 10 people may assemble to present a petition to the king, because more has been tumultuous and disorderly. anyone may without fee set up a hemp business including breaking, hatchelling [separating the coarse part and broken pieces of the stalk from the fine, fibrous parts by drawing the material through long iron teeth set in a board], and dressing it; or a flax business, including making and whitening thread, spinning, weaving, making, whitening, or bleaching hemp or flax cloth; making twine or nets for fishing or treating cordage for tapestry or hangings because the daily importation of such has in effect taken the work from the poor and unemployed of england. retailers of wine may not add to imported wines cider, honey, sugar, molasses, lime, raisin juice, or herbs. butter sold must be of one sort and not contain bad butter mixed in with good butter. butter pots must bear the name or mark of their potter. salt may be sold only by weight, to avoid deceit by retailers and wrong to buyers. no sheep, wool, woolfells, shearlings, yarn, fuller's earth, or fulling clay may be exported as has secretly been done, so that the poor of the realm may have work. fishermen may sell their fish to others than fishmongers at billingsgate fish market because the fishmongers have forestalled the market and set their own prices. the buyers of such fish may resell them in any other london market by retail, except than only fishmongers may sell in shops or houses. no tanned or untanned skin or hide of any ox, steer, bull, cow, or calf may be exported because the price of leather has risen excessively and leather workers can't get enough raw material to carry on their trade and because poor people cannot afford leather items they need. the newly incorporated company of silk throwers (drew the silk off the cocoon) employs many of the poor, but others practice the trade, so an apprenticeship of seven years is required to practice the trade in the realm. winders or doublers who purloin or embezzle and sell silk from the thrower who employs him and the buyer of such silk shall make such recompense as ordered by a justice of the peace or be whipped or set in the stocks for the first offense. the regulation of the silk throwers company restricting the number of spindles to be worked at one time is voided because it has taken livelihoods away and caused foreign thrown silk to be imported. buttons on garments must be made of silk, mohair, gimp, and thread and by needle to keep employed the many throwers, twisters, spinners, winders, and dyers preparing the materials for these buttons. no button may be made of cloth or wood. no tobacco maybe grown in england because the colonies would be discouraged from growing it and the king would not receive customs from it. no goods are to be imported to or exported from america, asia, or africa except in english ships, with masters and 3/4 of the mariners englishmen. no manufacture of europe may be imported into any colony or territory except shipped from england in english ships manned by englishmen. as of 1672, if bond is not given for colonial exports of sugar, ginger, tobacco, cotton, indigo, cacao nuts, or fustic [tree that yields a yellow dye] and other dyewoods going to england, a duty must be paid. as of 1696, no colonial goods are to be imported or exported or carried from one colony to another, except in ships owned and built in england, ireland, or the colonies with the masters and three fourths of the mariners from such places. these navigation acts were strictly enforced. only persons with lands and tenements or estate worth over 100 pounds per year or having a lease of at least 99 years worth 150 pounds per year and owners and keepers of forests or parks may have any guns, bows, greyhounds, hunting dogs such as setting dogs, snares, or other hunting equipment. these persons may kill hare, pheasants, partridges, and other game. gamekeepers authorized by justices of the peace may search houses and outhouses and seize unlawful hunting equipment. if hunting equipment or game is found in a house without good account to the justices of the peace, they shall impose a fine of 5s. to 20s., one-half going to the informer and one-half going to the poor of the parish. anyone killing, hurting, or taking away deer from any forest or park or other ground without consent of the owner or custodian shall pay a 20 pound fine. this was later increased to 20 pounds for hunting deer and 30 pounds for wounding or killing deer, with the pillory for one hour on market day and gaol for a year without bail for those who couldn't pay. any person privately and feloniously stealing any goods, including horses, by day or night, in any shop, warehouse, coach stable, or stable, whether there is a break-in or not, and whether or not the owner is present, or anyone assisting or hiring such person may not have benefit of clergy. any person who apprehends and prosecutes such person is excused from having to serve in parish and ward offices. an offender being out of prison who informs against two other offenders who are convicted is to be pardoned. any person convicted of theft or larceny and having benefit of clergy is to be burnt in the cheek nearest the nose instead of on the hand. army officers or soldiers who desert or mutiny shall suffer death or such other punishment as decided by a court martial of senior officers rather than the usual form of law, which is too slow. seamen not showing up on board after notice shall serve six months without pay, but shall not suffer as deserters. seamen do not have to perform service in the army. pirates may be punished by death and loss of all lands and chattels. any person aiding, advising, or concealing pirates may be likewise punished. officers and seamen killed or wounded in the defense of a ship or who seize or destroy pirates may be paid by the owners an amount up to 2 pounds per 100 pounds of freight as determined by a group of disinterested merchants and the judge. the amount due to a man killed will be paid to his widow and children. this is to be done when the ship arrives in port. any person who informs of any combinations or confederacies planning to run away with or to destroy a ship shall be rewarded by the commander or master of such 10 pounds for a ship 100 tons or under, and 15 pounds for a ship over 100 tons. the trial may be in england or the american colonies, whose authorities may issue warrants for arrest of alleged pirates. deserters from ships, because they often become pirates, shall forfeit all wages. masters forcing any man fit to travel to stay on shore or willfully leaves him behind shall suffer three months in prison without bail. persons may mine for ores on their own land, but must turn it over to the king who will give compensation for it, including gold, silver, copper (16 pounds per tun), lead (9 pounds per tun), tin (40s. per tun), and iron (40s. per tun). the fine for having, buying, or selling clipped coins is 500 pounds, one-half going to the informer, and one-half going to the king. the offender shall also be branded in the right cheek with the letter "r". he shall be imprisoned until he pays the 500 pounds. no hammered coins are lawful. anyone except a smith in the king's mint making tools or presses or other machines that can make counterfeit coins or having such which were stolen from the mint shall be guilty of high treason. by statutes of 1660 and 1662, when goods have been carried off ships without customs being paid, the chief magistrate of the place where the offense was committed or the adjoining place, or the lord treasurer, or a baron of the exchequer may, upon oath, issue out a warrant to any person to enter, with the assistance of a sheriff, constable or other public official, any house, shop, cellar, warehouse, or room in the day time where the contraband goods are "suspected to be concealed", and in case of resistance, to break open doors, chests, trunks, or other packages and to seize such goods, provided that if the information whereupon any house is searched proves to be false, the injured party shall recover his full damages and costs against the informer by action of trespass. this was extended to the colonies in 1696. the penalty for cursing or swearing by a servant, day laborer, soldier, or seaman is 1s. for others, it is 2s. the fine is doubled for the second offense, and tripled for the third offense. if an adult offender can't pay, he shall be put in the stocks for one hour. if a child offender can't pay, he shall be whipped by the constable or by a parent in the presence of the constable. the equity courts are now conceding limited proprietary rights to married women by enforcing premarital settlements or trust arrangements that designate certain property as a wife's separate estate and exempt it from control by the husband. such protective devices generally reflected a father's desire to shield his daughter from poverty and benefited only the landed aristocracy in practice. also, husbands are not allowed to punish and beat their wives as before. but the lower rank of men were slow to give this up. a wife could have the security of the peace against her husband. he could restrain her liberty only for gross misbehavior. in 1685, the courts ruled that apprenticeships were necessary only for servants hired by the year, thus exempting most wage laborers. there were many variations in religious practices for statutes to address. the quakers and baptists were opposed to any state church. the independents and presbyterians accepted the idea of a state church. the members of the established church and roman catholics adhered to their version the state church as they had experienced it in the past. atheism had a bad reputation. in 1662, the jews established the first synagogue in london. the privy council recognized their religious status as long as they were peaceful and obeyed the laws. they engaged in pawn-broking as well as money-lending. there were various statutes enacted over the course of time regarding religion, as follows: all ministers, school teachers, mayors and other town officials, including magistrates, were required to take the oaths of allegiance and supremacy [of the king over the church] or be removed from office. a great number of people refused to come to their parish church or other public place where common prayer and sacraments were administered and the word of god was preached according to the established church. the morning and afternoon sunday services with sermons, sometimes by guest preachers, continued. so factions and schisms developed. in response, the king changed the book of common prayer and its prayers were required by statute in 1662 to be read by some priest or deacon in all the churches and places of public worship wherever and whenever there was any preaching or lecturing. attendance at one's local parish church was never again required. as of 1665, no nonconformist minister, i.e. one who endeavored any alteration of government either in church or state, was allowed to live or visit within five miles of any corporate town or any place where he had acted as minister or else forfeit 40 pounds. persons not frequenting the established church were not allowed to teach in any public or private school or else forfeit 40 pounds. by statute of 1670, anyone at least sixteen years old who is present at any assembly, conventile [private meeting of religious dissidents to pray and expound scripture], or meeting under pretence of any exercise of religion in other manner than according to the established church of england at which there are at least five persons present shall be fined 5s. for the first offense and 10s. for the second offense. (this does not include members of the same household meeting in their home.) anyone who preaches or teaches at such a meeting shall pay 20 pounds for the first offense, and 40 pounds for further offenses. the householder who permits such a meeting shall pay 20 pounds. a justice or justice of the peace or chief magistrate may break open doors and enter by force any house or other place where they have been informed of any such meeting and take persons there into custody for prosecution. this is to discourage the growing of dangerous seditious persons under pretence of tender consciences. religious nonconformity continued especially among the humble people. the penal statutes caused hundreds of these nonconformists to be put in gaol. from time to time, the king would release them and suspend these laws. sometimes, charles ii allowed dissenters to meet in private for worship if they got a license from him. religious gatherings grew in numbers, size, and geographical extent. dissenters were then allowed by statute to meet behind locked or barred doors. but they had to pay tithes and could be prosecuted in the ecclesiastical courts for not doing so. by statute, all congregations and assemblies for religious worship had to register with the local bishop or archbishop. disturbers of religious worship were required to find two sureties for the amount of 50 pounds. attendance at the established church of england was never again required. nor was preaching or lecturing constrained. instead, a statute was passed in 1677 that: every person shall be pious and exercise religion publicly and privately on sunday. no work may be done or goods sold or else forfeit 5s. or the goods respectively. no one may travel or else forfeit 5-20s. in a further statute of 1688, because some ease to scrupulous consciences in the exercise of religion may be an effectual means to unite protestant subjects in interest and affection, protestant nonconformists who took the oaths (or declaration in the case of quakers) and a declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass were declared not liable for punishment in any ecclesiastical court by reason of their nonconformity to the church of england, except protestant dissenters meeting behind locked doors. but payment of tithes and performance of parish duties were still obligatory. non-conformist preachers had to subscribe to the tenets of belief listed in the first eighteen articles of religion, but were exempted from the articles on expounding inconsistencies in scripture, the traditions of the church, homilies, and consecration of bishops and ministers of the elizabethan statute and the statute on uniformity of prayers and sacraments of charles ii. quakers were active in the countryside. they were about one tenth of the population and did not believe in a state church. there were some quakers schools and some quaker workhouses to give work to the poor. for the reason that they met together in large numbers to the great endangering of public peace and safety and to the terror of the people, and because they had secret communications and separated themselves from the rest of the people and from the usual places of worship, a statute was passed in 1662, that any quakers who assembled to the number of five or more under the pretense of unauthorized religious worship and any person maintaining that taking an oath before a magistrate was unlawful and contrary to the word of god or refusing to take a required oath was to forfeit 5 pounds for the first offense or be imprisoned for 3 months if he couldn't pay. for the second offense, the penalty was 10 pounds or imprisonment for 6 months with hard labor. the third offense required abjuring the realm or being transported to a plantation of the king beyond the seas. the policy of charles ii was to allow quakers to meet undisturbed, to keep their hats on before magistrates, and to not come to the parish church. but this policy was only partially adopted in the country. from 1689, by statute, the quakers were allowed to affirm or declare instead of making the customary oath. many presbyterians became unitarians, who rejected the trinity of "father, son, and holy ghost" and doubted the divinity of jesus, but accepted revelation. this statute was then passed in 1697: any person having been educated in or having at any time made profession of the christian religion who, by writing, printing, teaching, or advised speaking, denies the holy trinity, asserts that there is more than one god, or that the bible is not of divine authority, shall be disabled for any ecclesiastical, civil, or military office. the penalty for a second offense is being disabled from suing or pleading any action in any court, being guardian of any child, or executor or administrator of any estate, or receiving any legacy or deed of gift and imprisonment for three years without bail or mainprize. catholicism was always disfavored. catholic priests were executed with little evidence. at times, charles commuted the death penalty for them to banishment. sometimes there were effigies of the pope burned in the streets. such burnings were later banned. at times charles allowed catholics to attend mass. by statute of 1672, all civil and military officers and king's officials must take the oaths of supremacy and allegiance and take the sacrament of the established church of england or be incapable of office. they also had to make a declaration that they believed that there is not any transubstantiation in the sacrament of the lord's supper, or in the elements of bread and wine, when they were consecrated. this is to prevent dangers from papists. as of 1678, no one may be a member of parliament if he has refused to take the oaths of allegiance and supremacy and the declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass. papists were made to pay higher taxes. every temporal and spiritual person, corporation, and guild had to pay taxes to subsidize the king in the amount of 2s.8d. for every pound's worth of personal property and money. but papists had to pay 5s.4d. for such. persons and corporations having land worth at least 20s. yearly, had to pay 4s. for every pounds' worth. but papists and aliens had to pay 8s. for such. but charles' successor, king james ii was catholic and gave many offices to catholics. this prompted a reaction against papists and more statutes restricting them. after james ii was chased out of england, a statute of 1688 required suspected papists in london to make a declaration that they were not catholic, did not adore the virgin mary or any saint, did not go to mass, or else stay ten miles outside of london. excluded were tradesmen and manual workers, who had only to register. all papists had to forfeit their arms and any horse worth more than 5 pounds. also, no king or queen or spouse of such could be a papist, but had to make the same declaration as members of parliament, and join in the communion of the established church of england. as of 1696, a person who was serjeant at law, counsellor at law, barrister, advocate, attorney, solicitor, proctor, clerk, or notary had to take the oath of supremacy and allegiance. as of 1698, papists who kept a school or tried to educate the young were threatened with perpetual imprisonment. also, popish parents were prohibited from forcing their children who were inclined towards protestantism to become catholic by refusing them suitable maintenance. as of 1699, a reward of 100 pounds was offered to any person who apprehended a popish bishop, priest, or jesuit saying mass. also, no papist was allowed to buy land. judicial procedure as of 1679, no man could be held in prison but on a charge or conviction of crime or for debt. every prisoner on a criminal charge could demand as a right from the court of the king's bench the issue of a writ of "habeas corpus" which bound his gaoler to produce the prisoner and the warrant on which he was imprisoned for review as to legality. this forced trials to be speedy, which they had not hitherto been. now it was impossible for the crown to detain a person for political reasons in defiance of both parliament and the courts, as charles i had done. the writ was suspended in times of war and domestic unrest: 1689,1696, 1708. in 1670, william penn was arrested for sedition for delivering a sermon in london, contrary to the statute that only the church of england could conduct meetings for worship. the jurors would not convict him, so were gaoled and fined by the justices. the jurors filed a writ of habeas corpus in the court of common pleas, which held in their favor. thereafter the english jury had full independence to decide to verdicts. by court decision of 1679, jurors were held not to be responsible to the justice for their verdict. after 1688, hearsay was inadmissible as evidence, which coke had recommended. the old system of original writs was abandoned, and the general concept or a wrong to person or property took its place. a person who was sergeant at law, counselor at law, barrister, advocate, attorney, solicitor, proctor, clerk, or notary in the courts had to take the required oaths of allegiance and supremacy. as of 1692, persons outlawed could appear by attorney as well as in person to argue reversal of such outlawry, except in cases of treason and felony. as of 1696, persons accused of high treason where there might be corruption of the blood or for misprison [concealing knowledge] of such treason had to be taken before a grand jury for indictment within three years of the offense. those indicted or outlawed for such were given a copy of the whole indictment, but not the names of witnesses, at least five days before trial in order to prepare their defense. they could have a copy of the panel of jurors at least two days before trial. they could be represented in their defense by not more than two counsel learned in the law and assigned by the court. their counsel had free access to them at all reasonable hours. they could make proof through lawful witnesses under oath. in a trial of commoners for their lives, a jury of twelve freeholders had to all agree on acquittal or conviction. in a trial of a peer, the others peers in parliament determined the outcome by a majority vote. jurors were required to have at least 20 pounds income from freehold land or rents in fee, fee tail, or for life. this increase in the quality of the jury enabled it to better discern the issues in dispute. jury sympathy was determined by the sheriff who chose the jury. so if a sheriff was popularly elected, as in london, he chose jurors who favored individual and corporate liberty. if the king selected the sheriff, he chose tories, who supported the crown. issues of bastardy or lawfulness of marriage had to be tried by a jury. the civil suit of trespass on the case has now branched into assumpsit, trover, deceit, negligence, and libel and slander. the latter supplements bad words punished by the local courts and defamation punished by the church courts. trover becomes the normal mode of trying the title to moveable goods as the courts oblige the defendant to answer the charge of conversion without permitting him to dispute the loss and finding of the goods by the plaintiff. this is an example of the initiation of a suit by a writ for trespass on the case: the king to the sheriff &c. as in trespass to show: wherefore (e.g.:___) he fixed piles across the water of plim along which, between the humber and gaunt, there is a common passage for ships and boats, whereby a certain ship, with thirty quarters of malt of him the said a, was sunk under water, and twenty quarters of the malt of the price of one hundred shillings perished; and other wrongs &c. as in trespass. this is an example of a writ for trespass on the case in assumpsit: the king to the sheriff greeting &c. as in trespass to show: wherefore whereas he the said x undertook well and competently to cure the right eye of the said a, which was accidentally injured, for a certain sum of money beforehand received, he the same x so negligently and carelessly applied his cure to the said eye, that the said a by the fault of him the said x totally lost the sight of the said eye, to the damage of him the said a of twenty pounds, as he saith, and have there &c. wherefore whereas he the said x undertook to make and build three carriages for conveying victuals of him the said a to parts beyond the sea for a certain sum of money beforehand received, within a certain term between them agreed; he the said x did not take care to make and build the carriages aforesaid within the term aforesaid, by which he the said a hath wholly lost divers his goods and chattels, to the value of one hundred marks, which ought to have been conveyed in the carriages aforesaid, for want thereof to the great damage of him the said a as it is said: and have there &c. this is an example of a writ for case on indebitatus assumpsit: the king to the sheriff &c. as in trespass to show: for that, whereas the said x heretofore, to wit (date and place) was indebted to the said a in the sum of for divers goods wares and merchandises by the said a before that time sold and delivered to the said x at his special instance and request, and being so indebted, he the said x in consideration thereof afterwards to wit (date and place aforesaid) undertook and faithfully promised the said a to pay him the said sum of money when he the said x should be thereto afterwards requested. yet the said x, not regarding his said promise and undertaking but contriving and fraudulently intending craftily and subtly to deceive and defraud the said a in this behalf, hath not yet paid the said sum of money or any part thereof to the said a (although oftentimes afterwards requested). but the said x to pay the same or any part thereof hath hitherto wholly refused and still refuses, to the damage of the said a of -----pounds as it is said. and have you there &c. this is an example of a writ for case for trover: the king to the sheriff greeting &c. as in trespass to show: for that, whereas the said a heretofore to wit [date and place] was lawfully possessed as of his own property, of certain goods and chattels to wit, twenty tables and twenty chairs of great value to wit of the value of ___ pounds of lawful money of great britain; and, being so possessed thereof he the said a afterwards, to wit (date and place aforesaid) casually lost the said goods and chattels out of his possession: and the same afterward, to wit (date and place aforesaid) came into the possession of the said x by finding; yet the said x well knowing the said goods and chattels to be the property of the said a and of right to belong and appertain to him, but, contriving and fraudulently intending craftily and subtly to deceive and defraud the said a in this behalf, hath not as yet delivered the said goods and chattels, or any part thereof, to the said a (although often requested so to do) but so to do hath hitherto wholly refused and still refuses; and afterwards to wit (date and place aforesaid) converted and disposed of the said goods and chattels to his the said x's own use, to the damage of the said a of ____ pounds as it is said; and have you there &c. the rigid writs with specific forms of action for common law cases started to fall into disuse. later, trespass on the case bifurcates into misdemeanor and the tort of trespass. persons in prison on suspicion of treason could not be released on bail as of 1688. if one of several defendants of a case was acquitted, all defendants recovered their costs from the plaintiffs. a person found guilty of malicious prosecution recovered his costs from his accuser. mercantile cases were decided in light of mercantile custom rather than according to the strict rules of the common law. merchants and traders could settle their trade disputes by arbitration, which decision could be enforced by court order. after the restoration, all legal decisions of the commonwealth and protectorate were confirmed subject to a right of appeal. the star chamber was not restored, and parliament assumed its control of the press. the king's bench succeeded to most of the star chamber's jurisdiction. no longer could the privy council influence criminal cases and the general supervision of legal processes through the star chamber. the high commission court was not restored, but church courts were, but with depleted powers. they accepted subordination to the common law courts. because the church's administration was inefficient and corrupt and its punishments inadequate, they gradually lost their power to the common law justices and justices of the peace. they had virtually no authority over laymen. they could still punish heresy, but lost jurisdiction over the law of libel and slander, which then were transformed by the civil courts, and over prostitution and scandalous lewdness. local ordinances for suppression of brothels, which were run by madams, were founded on breach of the peace. in 1678, the death sentence was taken away from the church courts. in 1697, church sanctuary was abolished. the county courts faded into insignificance, as the justices of the peace took on more jurisdiction. in 1668, new justices were issued patents with "at pleasure" instead of "during good behavior" describing their tenure. charles ii and james ii frequently dismissed justices not favorably disposed to the crown. in 1697, they were to have fixed salaries instead of the profits of justice. by statute of 1701, justices' commissions were to be made with an established salary determined by parliament and a tenure to last during good behavior. they could be removed only by the address of both houses of parliament. this gave them independence from the king. their tenure lasted for the life of the monarch. the chief justice could empower persons by commission to take affidavits from people in the country for court proceedings in westminster. judgments were docketed so they could easily be found e.g. by heirs, executors, administrators, purchasers, and mortgagees. court judgments and fines could be challenged for error only within twenty years. court decisions were still appealable to the house of lords. in 1668, skinner v. east india company held that the house of lords could not exercise original jurisdiction in civil cases between commoners as it had claimed, but retained its appellate jurisdiction. in 1675, the house of lords acquired the new judicial function of hearing appeals from the chancery court by virtue of the case of shirley vs. fagg. any gaol keeper allowing a prisoner to escape in return for money lost his office forever and had to forfeit 500 pounds. the last burning of a woman as a penalty for an offense, which had been only occasional, was in 1688. the last bill of attainder, which condemned a person to death, occurred in 1697. the pillory was still in use. benefit of clergy was taken away from those who stole cloth or woolen manufactures from their drying racks or who embezzled military stores or ammunition worth at least 20s, or stole goods of over 5s. value from a dwelling house with a person therein put in fear, a dwelling house in daytime with a person therein, or by day or night a shop or warehouse. a statute of 1661 gave jurisdiction to naval courts-martial to decide cases at sea, e.g. insubordination; failure to fight the enemy, a pirate, or rebels; not assisting a friend, mutiny, drunkenness, creating a disturbance to protest the quality of the food, quarreling, sleeping on watch, sodomy, murder, robbery, theft, and misdemeanors. usually the penalty was to be determined by the courts-martial, but sometimes death was decreed. in the american colonies, judges were still appointed by the royal governors and paid by the local legislatures. they still served at the pleasure of the king. chapter 18 times: 1702-1776 dress was plainer than before. gentlemen wore white linen shirts; waistcoats fitted at the waist and covering the trunk at least; long lawn ties wound around the throat and tied in front with the tails tucked in, knee-length coats that were wide in the skirts and in the sleeve cuffs and having large gold, silver, or bronze buttons which didn't reach to the buttonholes on the other side of the coat; knee breeches of cloth, knitted wool, thread, and silk; and silk stockings rolled up at the knee. some shoes had metal buckles. gold fobs with watches or seals hung from the breeches pocket. the clothes were made of silk, satin, or velvet and often in colors such as yellow, orange, scarlet, blue, violet, pink, and dull slate, and decorated with gold and silver trimmings. a slender sword was worn on the side. short wigs, often powdered with heavily scented white or gray wheat flour, with rolls over the ears with hair tied at the back, were worn for formal occasions. wigs were made of human, horse, goat, or cow hair, or mohair, worsted, silk, or wire. sometimes feathers and cork were also used. the hat was three-cornered, and usually of beaver or dark felt. there was often a rosette or such to show one's political opinion. there were new colors and cuts of dress for every season. by 1750, wearing a sword was just a symbol of gentility. gentlemen often had valets to help them dress. ladies wore fitted full-length dresses held out by hoops with shoulders hidden, sometimes with a laced bodice with stays, and lace at the neck. the waistline fashion fluctuated high and low and in tightness. the dress could be brocade, satin, velvet, silk, etc. some put jewels in their hair and had high elaborate hats with wide brims tilted forward. hair was in ringlets at the side or dressed close to the head with a small top knot covered with a laced cap. they also wore wigs when dressing up, decorated with ribbons and artificial flowers. hooded cloaks were used outdoors and hoods were used for sun or wind. they carried leather purses with gloves at elbow length. both gentlemen and ladies wore cosmetics and face patches and used tooth powders, breath sweeteners, lip salves, and choice perfume. some had false teeth of bone or ivory wired into place. they both had accessories such as fans, handkerchiefs, head scratchers, and elaborately designed snuff boxes, patch boxes, and perfume containers. both men and women sniffed tobacco snuff but only men smoked. they walked with tall, elegant canes, and women also carried parasols. hats were made of wool and hair of beaver, rabbit, or camel. straw hats were worn in the summer. there were ready-made clothes and shoes, especially for children. night gowns and night caps were worn to bed. about 1714, umbrellas for rain were introduced. they were made of waxed silk or taffeta. all but the poorest wore silk and lace. a prosperous countryman wore riding clothes consisting of breeches and boots, cut-away coat, and low top hat. the highest class were the peers and peeresses of the house of lords and their spouses and families. they were the nobility and held the high political offices, the high ranks in the army and navy, and owned large estates, usually scattered over the country. some were lawyers or merchants. there was much intermarriage among these families. indeed, many a noble family had salvaged its fortunes by marriage to a london merchant. the richest people in london were international merchants. these high class families lived in mansions with four or five living rooms, two to five acre gardens, and stables. the next class were the gentry. their family heads had land and were often justices of the peace. they were sometimes members of the house of commons. the oldest son took over from his father, while the other had to find a living such as in the church, law, medicine, or trade. they usually lived in mansions. the old yeoman class was disappearing due to their selling their land to larger landowners. farming on a large scale was more productive. the next class were the "middling sort". in this class were merchants, lawyers, substantial tenant farmers, smaller freeholders, millers, innkeepers, in town traders, shopkeepers (who now kept their wares inside and lived on the second floor), middlemen, clothiers, ironmongers, goldsmiths, grocers, linen drapers, apothecaries, school masters, clerks and civil servants, and customs and excise men. the town people lived in town houses of two stories plus an attic. the last class were the manual workers. these were wage earners or independent craftsmen, farriers, rural smiths (who shod horses and made stair rails, window-bars, torch extinguishers, lamp irons, bells, bolts, hinges, locks, and fire-grates), sawyers, carpenters, joiners, wheelwrights, nail makers, brick makers, plumbers (made lead cisterns, kitchen sinks, rainwater heads, drain pipes and lead flats for houses and ornaments), thatchers, spinners (silk, flax, hemp, wool, hair), dyers, wool combers, weavers, shoemakers, hat makers, belt and buckle makers, dressmakers, milliners (hats, caps, bonnets, cloaks, hoods, muffs), feather workers, button makers, lace makers, steel pin makers, brewers, cutlery makers, soap makers, candle makers (made from beeswax, tallow, mutton-fat, or beef-drippings), comb makers, barber/hairdressers (shaved, cut hair, made wigs and braids, and let blood), curriers, leather workers, carpet weavers, paper makers, tin-plate makers, printers, enamel workers, braziers and coppersmiths (made kettles, saucepans, canisters, milk pails, lanterns, candle boxes, candle sticks, and lamp lighters), basket makers, jewelers (made rings, perfumes, match boxes, buckles, and tops of canes), watch and clock makers, type founders, letter cutters, trunk and chest makers, cabinet makers, saddlers, coach body builders, coach carriage makers, shipwrights, rope makers, and sail makers. these workers typically worked in their stone or brick houses in a rural setting, with gardens, a cow, a horse, pigs, and poultry around them on 2-6 acres. they now ate wheaten bread instead of rye bread, much meat and cheese, and drank tea. these people also worked in the harvesting of grain. some consolidation of work was starting. for instance, the weaver, who had furnished himself with warp and weft, worked it up, and brought it to market himself was being displaced by weavers who worked under supervision for one merchant in a town on looms the merchant had acquired. many women and children were so employed. it was not unusual for a man to work 13 hours a day for 6 days a week. real wages were higher than at any time since the mid-1400s. the wage earners were well above the subsistence level as long as trade was good. working men could now afford leather shoes and white bread. but eventually, as the employer came to realize how dependent the weaver had become on him, wages tended to fall. in 1757 a gloucester weaver, with his wife to help him, could earn, when work was good, from 13s. to 18s. a week. a few years later, he could only earn about 11s. a woman spinner earned 10-15d. a day in 1764, but 3-5d. in 1780. in the same period, men's wages fell from 17d. to 10d. a day. only certain workers, whose special occupation needed greater skill, e.g. the wool-combers, whose wool was longer and of better quality than carded wool, and shearers, were better paid. in 1770, wool combers made 13s. a week; their wage was about the same all over the country because they traveled form town to town in search of work and always supported each other. also in 1770, newcastle miners earned 15s. a week, sheffield cutlers 13s.6d. a week, a rotherham blacksmith 13s. a week, a furnace keeper at horsehay about 12s. a week, a staffordshire potter from 8-12s., a witney blanket weaver or a wilton carpet weaver 11s. or more a week, a manchester cotton weaver from 7-10s. a week, and a leeds cloth weaver about 8s. in this class also were ploughmen, cowmen, dairymaids of the bigger farms. they had cottages of wood, clay, and straw, with clay floors and low ceilings, and a divided ground floor. a few had homes built of stone, covered with slate or thatch. wages of industry were higher than those of agriculture. in 1770, a day laborer earned 5-6s. a week in winter and 7-9s. in summer (without board or lodging). in the short harvest time, he could earn 12s. a week. lastly were the mass of the population of london: hordes of laborers who depended on casual employment and could be dismissed at will. about half the population had no resources but their labor, which was usually unskilled and lowly paid. in good times they had just enough to feed themselves. the gap between rich and poor became greater. marriage remained a main way to wealth. also, one trained in the law could aspire to have a successful career in high political office, which also brought wealth. but there was less social mobility than in the previous century and many landed families were consolidating their position. they expected their oldest son to take and preserve the family estate. industrialists who had made a fortune for example in steel, cotton, coal mining, porcelain, and merchants who wanted to turn themselves into landed gentlemen found it very difficult to buy such estates. old dissenter families, quakers in particular, who were highly esteemed as businessmen, as industrialists, and as model employers were excluded from the anglican landowning society. rich tradesmen, artists, actors, and writers found it difficult to buy substantial houses in the small market towns and countryside because of an entrenched hierarchical atmosphere there that didn't exist in london. the only gentlemen who were in household service were librarians, tutors, or chaplains. they ate with the family and did not consider themselves servants. servants were kept more at a distance. by the 1750s the servant class was clearly defined. their quarters were moved to the basement of the house and they ate together in the kitchen. but some householders still had special occasions when everyone would eat together in the dining room, with the servants at one end of the table. in 1767 about one tenth of the population in london had servants. even bricklayers and milk sellers had a servant. most families had just one servant. most wives employed some other woman or child to help in washing and scouring or in the minding of the children. london had grown beyond the locations of its walls around the city. london stretched ten miles along the thames, and was three miles wide in the center. on the east of the city was the port and industry. the west side ended at hyde park and regent's park and was residential. in 1710 it was still possible to shoot woodcock in regent street. in 1750, westminster bridge was opened. in 1760, the city walls were taken down to ease congestion. the typical london house, usually brick, was on a rectangular plan and had a basement to utilize all the space possible. walls were now more covered with hung damask, brocade, silk, and wallpaper or plain paint rather than by wood wainscoting. there were pictures on them. on the first floor was a front hall or parlor and a back parlor. one of these parlor rooms was the most important room, where the family entertained or spent leisure time. in it were sofas, armchairs, and stools of mahogany or white gilded wood. they were upholstered with damask or needlework. imported mahogany was replacing the favorite walnut that had replaced oak. much wood was inlaid with a variety of other types of woods. there was also a carved tripod table, china table, card table, and perhaps bookcases and/or tea-table. furniture with original designs made by the cabinet-maker chippendale was available. his genius was in combining various motifs into one harmonious design. cabinet makers had to keep abreast of his standards and to imitate them to conform with their customers' orders. cabriole legs with claw and ball feet came into fashion with queen anne about 1712. between windows were tall mirrors. there were pictures on the walls. from 1760, glass chandeliers hung from the ceiling to reflect candlelight coming from standing candlesticks or glazed hanging lanterns with brass frames. the fireplace had an elaborate mantel. the fire was kept going all day. it was lit by a tender box, which was unreliable. an iron fireback was behind the fire. the firewood was placed on andirons. fire grates were used from about 1712. at a corner of the building was added a closet. on the second floor was a dining room, continuation of the closet below, and a drawing room, dressing room, or bedroom, and perhaps a study or music room with harpsichord. the dining room had a fireplace, curtains over the windows looped up at the cornices, one or more mahogany tables, a set of mahogany chairs with leather or haircloth seats fixed with brass nails (perhaps with some sort of metal springing), two mahogany sideboards with marble tops, cupboards or shelves or cabinets with displays of china porcelain, a wine-cooler, a dumb-waiter, and a folding leather screen. the china, which was displayed, was mostly imported, but there was some english china. later, there was famous wedgwood stoneware and pottery with bright, unfading glaze, or with dull black and red surfaces, biscuit ware of pale green, blue or purple, upon which white designs stood out like cameos. they came from the pottery factory at staffordshire founded by potter josiah wedgwood in 1769. there were silver and pewter plates and serving pieces, silver candlesticks, and silver knives, spoons, and two and three pronged forks, glass saltcellars from 1724, and fingerbowls from which one rinsed one's mouth or cleaned one's fingers after dinner which were made of glass from about 1760. on the third floor were bedrooms and a nursery. in the bedrooms, there was a high bed with curtains, canopies, piles of blankets and pillows, and steps up to it; wardrobe; chairs; a hand wash stand; chests of drawers; writing bureau; dressing table with a couple drawers and a mirror; swing standing mirror; tin rush candle canister; and night commode. children and servants slept on low wooden bedsteads. walls were stucco, a form of cement that could be sculpted, or paneled or hung with silk and printed paper. servants, such as the page and footmen, slept in the attic and perhaps in the kitchen or cellar. there was a wood staircase for the family and a back staircase for the servants. the floors and stairs were protected with carpeting. servants had no right to free time or to holidays. the kitchen was in the basement or in a covered shed in the back. it had an open fire and a tin oven. the cold water tap over the stone sink could supply cold water from a cistern in the basement or hand-pumped to a roof cistern through wooden pipes at very low pressure at stated hours for a fee. there was a wash shed in back. water pumped from the thames into underground pipes was thus distributed to householders three times a week. some water came from a well or spring, rain, and street water sellers. water carriers were still employed at set fees. water was kept in lead cisterns. the wealthy had basement cisterns filled by a commercial company. the free public conduits of water were out of use by 1750. the pollution of the thames river grew, but it was still a salmon river. the front door of the house had two strong bolts on the inside and a heavy chain. the windows could be shuttered and barred. there were sash windows with cords and brass pulleys. at the back of the house was a garden and perhaps a coach house or stables. the latrine was usually not in the house, but somewhere in the back garden area. under it was a brick drain leading to a public sewer or to a cesspool. smelly gases arose from it. sometimes people gathered such waste up to sell to farmers returning home in an otherwise empty wagon. in 1760, patented inside toilets began to be used. each stood in its own room. a watchmaker named alexander cummings patented in 1775 the water-closet, which had a stink trap u-bend behind which, after flushing, water resided and prevented the backflow of noxious sewer gas. its pans and overhead cisterns were made of pottery. they were supported by wood structures. there were better cements for building. chinese porcelain, embroidery, and lacquer work were popular. landscaping to reproduce an idealized country scene replaced formal gardens. furniture and landscaped gardens were often done in a chinese style. foreign trees were imported. many of the well-to-do now lived in districts without as well as within the city limits. many streets east of the city were named after the governing families whose estates were there. their mansions had interior columns, archways, marble halls and fireplaces, carving, gilding, rich colors, and high ornamented ceilings. they each had a picture gallery, a library, stables with coachmen, grooms, and stableboys, and a still-room for concocting liquors and cordials such as cherry brandy, sloe gin, and elderberry wine. medicine and scents were also developed in the still-room. hands were washed in bowls held up by wooden stands. there were built-in bathtubs, but they usually lacked hot and cold running water, so hot water usually had to carried up to them. in these mansions, there were many private parties and balls. the standard for politeness here was high and gentlemen were expected to keep their tempers. this came about because impoliteness could easily lead to a quarrel and then a duel. the pistol was replacing the sword as the weapon of choice for duels. good manners developed for all occasions, with much less swearing and less rudeness. by gentlemen's agreements, men did favors for each other without a monetary price, but with the expectancy of a favor in return. the love of one man for another was recognized as the highest and noblest of human passions. people of high social standing left their country estates to spend the winter season in their townhouses in london with its many recreations such as receptions, routs, levies, masquerades, balls, dinner parties, clubs, pleasure gardens, theaters, shops, shows, taverns, and chocolate and coffee houses. coffee houses provided turkish coffee, west indian sugar and cocoa, chinese tea, virginia tobacco, and newspapers. they were frequented by learned scholars and wits, dandies, politicians, and professional newsmongers. men of fashion often engaged in wagers and gambling at their clubs and coffee houses. there were wagers on such matters as the longevity of friends and prominent people, fertility of female friends, wartime actions, and political matters. carriage by sedan-chair was common. gentlemen often had valets. in 1776, buckingham house was bought as a palace for the royal couple. people from different parts of london differed in ways of thinking, conversation, customs, manners, and interests. for instance there were sections where sailors lived, and where weavers, watchmakers, and cow keepers each lived and worked. there were many specialized craftsmen who worked with their own tools in their own shops or houses, for some superior who had contact with the market and who supervised the final processes of manufacture. these included the goldsmiths, upholsterers, coach makers, saddlers, and watchmakers, all of whom had many dependents. the watchmakers had specialists making wheels, pinions, springs, hands, dials, chains, keys, caps, and studs in their own houses. the type of industrial organization most common in london was that in which work was given out to be done in the homes of the workers: the putting out system. some industries, such as watchmaking, silk weaving, and shoemaking were on both a putting out system and a system of an apprenticeship to journeymen working on piece work. shoes were made to order and ready made. the customer was measured in a shop, the clicker cut out the upper leathers, which were given to the closer to be closed, and then to the maker for the sole and heel to be put on. another class of shoemaker worked alone or with an apprentice in a garret, cellar, or stall, using pieces of leather cut out for him by the currier or leather cutter. london industries included the making of bread, beer, spirits, and vinegar; sugar refining; tobacco refining and snuffmaking; spinning and/or weaving of woolens, worsteds, silk ribbons, tape, and cloth; and making printed calico, clothes, linens, laces, tassels, fancy embroidery, stays, stockings, hats, shoes, leather goods (boots, shoes, hats, gloves, harnesses, and saddles), jewelry, glass, candles, tapestry, musical instruments, cutlery, furniture, paint, varnish, paper, tools, swords, guns, heavy artillery, ships, sails, rope, carriages, precious and base metalwares such as brass and pewter ware, and printer's ink and glue; printing; and publishing. surgical instruments made included straight and curved knives and probes, lancets, scissors, spatulas, trepans (for cutting bone), and cupping cases. optical instruments made included eyeglasses, telescopes, and microscopes. in 1727 eyeglasses were held in place by frames that went over the ears, which replaced unreliable cords over the ears and leather straps tied behind one's head. also made were nautical instruments, quadrants, sundials, sectors, globes, scales, orrerys [model solar systems], and air pumps. in london, the old distinction between craftsmen and laborers was blurred by the existence of trades which employed workmen under a skilled foreman instead of journeymen who had served an apprenticeship. these trades were, on a large scale, new. among the most important of these trades were the distillers and brewers of liquors, the tobacconists and snuff makers, the sugar refiners and soap boilers, the vinegar makers, and makers of varnish, of glue, of printers' ink, and of colors. the latest chemical theories and the chemical explanation of dying brought about the invention of new colors and new processes in dying cloth. workers in these trades were considered as laborers, but their wages were high and their positions relatively secure. they learned their jobs by doing them. the older trades of a similar character, such as tallow melters and chandlers, wax chandlers, fellmongers, and the tanners, employed journeymen. there were buildings for boiling and distilling turpentine, for casting brass or iron, and for making glass for chemical works for sale. the skilled artisan who worked at home and either made goods for a master or sold to the trade verged into the shop keeping class. on the other hand, the lowest type of shopkeeper, the chandler, the dealer in old iron, the tripe shop, the milk retailer, the keeper of a cook shop or a green cellar belonged to the class of casual and unskilled labor. the lowly chimney sweep, paid 6d. a day, served an apprenticeship as a boy, and then was his own master. the watermen and lightermen, by virtue of their fellowship and their apprenticeship and often the ownership of a boat, belonged to the class of skilled laborers. craftsmen in the building trades and paviours had their laborers as smiths had their hammermen to do the heavy work at laborers' pay. the street ragpickers, the ballad sellers, and the match sellers belonged to the class of beggars. working women in london in 1750 were employed in domestic service: 25%, nursing and midwifery: 12%, cleaning and laundry: 10%, vitiating: 9%, shopkeeping: 8%, hawking: 6%, and textiles: 5%. those employed in domestic service were mostly young women who later married. some women were schoolteachers, innkeepers, or manufacturers, which were middle-class employments. many women in the realm engaged in a variety of occupations from fanmaking and hairdressing to catering, and, as widows, often carried on their husband's trade, including bookselling, hatmaking, building or ironmongery. although shops still had small frontages of about 15 feet and the windows had small panes of bottle glass which partly obscured the view of the goods, there were magnificent shops with large windows displaying fine goods, bookshops, and print shops with prints of political satire with caricatures. the shops were generally open six days a week from 7 a.m. to 8 p.m., and years later to 10 p.m. in 1675 josiah wedgwood opened a showroom in london for his high quality pottery from staffordshire. consumption was on a mass scale, many people buying what they wanted instead of just what they needed. there were circulating libraries, public concert halls, and professional boxing matches. at coffee houses, chocolate houses, and taverns, people played at dice and cards, gambled, talked politics and read daily newspapers, in which there was advertising, reports of marriages and deaths, grain prices, and book reviews. different professions and classes and groups, such as the whigs, the tories, classical scholars, scientists, clergymen, intellectuals, actors, writers, and journeymen of particular crafts, had their favorite meeting places. coffee houses reflected the character of their neighborhoods. they acted as postal centers, lost property offices, business addresses, physicians' consulting rooms, lawyers' and merchants' business transactions, matrimonial agencies, masonic lodges, auction rooms, and gambling dens. some retained a supply of prostitutes. many taverns had a rentable private room for the better-off to drink wine, have meals, meet friends, gamble, do business, and hold meetings of societies and clubs, especially political clubs. from this beginning sprang private clubs such as the blue stocking club in 1750 and the literary club in 1764; lloyd's for sale and insurance of ships in 1771; and the stock exchange in 1773. the blue stocking club was established by women who organized conversational parties with guests of intellect and wit. there was opera, playhouses, concerts usually with georg handel's oratorios such as the messiah or the foreigners bach and haydn, tea-gardens, fire works, balls, masquerades, wax works, beer shops, and bawdy houses, except on sunday. there were straight plays, comic operas, and melodramas. three-dimensional sets replaced the twodimensional backdrop. plays containing thinly veiled satires on politicians were becoming popular. some plays had crude and licentious material. theaters still shared a close association with brothels. unlicensed theaters were closed down by a statute of 1737, but most came to acquire patronage to get a license. this shaped the development of drama in london for a century. the beggar's opera depicting an immoral society unable to master its bandits was written by john gay as a powerful attack on a government which most of london hated. with its many ballads it became very popular. one such ballad goes: "through all the employments of life each neighbor abuses his brother; whore and rogue they call husband and wife; all professions be-rogue one another. the priest calls the lawyer a cheat, the lawyer be-knaves the divine; and the statesman, because he's so great, thinks his trade as honest as mine." another is: "a fox may steal your hens, sir, a whore your health and pence, sir, your daughter rob your chest, sir, your wife may steal your rest, sir, a thief your goods and plate. but this is all but picking, with rest, pence, chest and chicken, it ever was decreed, sir, if lawyer's hand is fee'd, sir, he steals your whole estate." the thames was crowded with sailing boats and with a line of boats waiting to unload. foreign and native ships lined the river banks in rows. theft of cargo from docked ships was still a problem and pirates were still executed at low tide on gallows. londoners went to the bridges across the thames to breathe fresh air. london air was so smoky and polluted by coal-burning in kitchens and factories that it gave a cough to newcomers. the river was so polluted by the sewers by 1760 that all the swans and most of the fish had disappeared. a mansion house was built for the mayor in 1753. the king's zoo had ten lions, one panther, two tigers, and four leopards. deer hunting in hyde park was now confined to its northwest corner, which was enclosed for the king, who occasionally hunted here. elsewhere in the park were laid out walks and fountains. gardens were now natural instead of formal. the streets were usually crowded with people and traffic. many people traveled by sedan chair. on the streets were barrows with goods such as lace, threads, fruits, and chickens; beggars, ballad singers, musicians, bands, street dancers, apple women, piemen, muffin men, fruit sellers, nut sellers, pudding sellers, milk maids selling milk from buckets, milk sold directly from the cow, vendors of asses' milk, hawkers, newspaper boys, scavengers with carts, postal collectors, lamplighters on their ladders, wenches, chimney sweeps, rat catchers, pick pockets, swaggering bravados, strolling strumpets, brawling watermen, card sharps, overdressed beaux, dancing dogs, and acrobatic monkeys. each trade had it own call. billingsgate open-air market was now exclusively for the sale of fish. small tradesmen such as dairymen, butchers, bakers, fishmongers, and chandlers delivered to regular customers food bought from distributing centers. workers by necessity lived near their place of work because there was no cheap transport and walking through the streets after dark was unpleasant and dangerous. hours of work for most craftsmen was from 6 a.m. to 8 p.m., six days a week. it was common for working class families in london to live in a single room of their house and rent the rest, furnished, to people of different degrees of prosperity and even of different social grades. servants and apprentices slept in the kitchen, the shop, or the garret. the very poor, such as casual laborers and street sellers, silk winders, charwomen, usually lived in damp cellars subject to floods from excessive rain, or in cold and windy garrets. tenancy was usually on a weekly basis because of the general uncertainty of life and trade. conditions were so cramped that cabinet makers made beds which masqueraded in the day time as tables, bureaus, cupboards, or bookcases. the very poor slept in common lodging houses, sleeping uncovered on the floor, twenty to a room. some poor families slept in small hovels made of mud and straw with their pigs, domestic fowl, dogs, and even asses and horses. homeless children slept on the streets. all classes lived so much at coffee houses, alehouses or clubs, which they often used as their addresses, that house room was a secondary consideration. there was an alehouse on almost every street in london to provide cheap food and beer, lodging, employment information, credit, newspapers, tobacco, and meeting places for tradesmen. some alehouses were recognized employment agencies for certain trades, such as the hatters, smiths, carpenters, weavers, boot and shoe makers, metal workers, bakers, tailors, plumbers, painter and glaziers, and bookbinders. they were often run by one of the trade, retired or otherwise. some alehouses catered to criminals and prostitutes. for cheap and simple eating there were chophouses, cookshops, and beef steak houses. there were about 10,000 english immigrants a year to london in the 1700s. they were mostly young people. london needed many immigrants because of its high death rate. over twenty london people a week died from starvation alone; they were mostly women. only about one-fourth of london's population had been born in london. especially welcome were sturdy country people for heavy manual labor, the better educated boys from the north for shops and offices, and the honest country people, as contrasted with london's poor, for domestic service. girls mostly looked for domestic service, but were sometimes made the mistress of the housekeeper or steered into prostitution as soon as they entered the city. an ambitious young man would seek an apprentice job, work hard, flatter his master, and try to marry his master's daughter. it was easier to find a place to live in london than in the villages, though there was much overcrowding. many shopkeepers and workshop owners in london were involved in leasing, purchases, and contracts. queen anne was authorized by parliament to build about 50 more churches in london and westminster and their suburbs, to be paid for by a coal tax on imports into the port of london. churches in london were to be rebuilt with money paid by funeral rates, rates for tolling the bells, and rates for the use of palls [altar cloths]. queen anne also appropriated all her revenues from the first fruits and tenths of ecclesiastical benefices: 16,500 pounds, to the clerical poor in 1704. there were fewer quarrels among passersby on the london streets; men were less likely to wear their swords. but there were fist fights by common men which gathered crowds and occasioned betting. most crime was petty theft, but mobs and riots were frequent, as there were no police. watchmen and constables were often old and physically incapacitated. the watchmen were householders taking their turn. this duty of householders watching the streets had evolved from the ancient obligation of wards to provide men to guard the walls at night. but few wanted these jobs by which they could offend their neighbors. many citizens paid a rate to be excused from watch and ward duty. constables were often tavern keepers. many riots were started when penal laws against the catholics were repealed. they began with the cries of "no popery", but then targeted rich men's houses. mobs sacked and pillaged at will, burned houses, and flung open the prisons to increase their numbers. there were political riots between tories and whigs. working men still used violence to protect their livelihoods, such as destroying the lodgings and public houses of cheap immigrant labor such as the irish. the stocking-knitters destroyed stocking-knitting frames so that the number of apprentices who could be employed would not reach the limit specified by its guild's regulations. parish workhouse children also provided a cheap supply of labor which forced down the wages of the stocking knitters. in 1720 a statute banned wearing of calico after mobs tore calico garments off women. in 1765, thousands marched on parliament and persuaded it to ban foreign silk imports. but when a mob destroyed engine-looms, the army was used against the rioters and two of them were hanged. this was the last major mob action. around the tower, there were still demagogues standing on upturned carts haranguing passing crowds. the tower area was a favorite place for demonstrators, and for unemployed and dissatisfied workmen, particularly coal heavers and underpaid seamen protesting their low pay and poor living conditions. there was more crime, especially at night, now with organized bands of men or gangs of children. bounty hunters made a lot of money catching offenders. in 1736, to deter the frequent robberies, burglaries, and other felonies at night, many glass lamps were set up in places determined by the mayor. they had to burn from sunset to sunrise. in 1736, a lighting rate was imposed by the city to pay for all night lighting all year by hired lamplighters. anyone breaking or damaging the lights of london would forfeit 40s. for the first offense, 50s. for the second offense, and 3 pounds for the third offense. the aldermen had to contract to pay for lighting, trimming, snuffing, cleaning, supplying, maintaining, and repairing them. to pay for this system, citizens paid according to the amount of rent their holdings were worth. if they didn't pay, they could not vote. bad areas of thieves and prostitutes and the slums east of the city were gradually being replaced by warehouses and offices. in 1757, london bridge was widened and the houses were cleared off it. there were lanes for carriages in the middle and for pedestrians on each side. its arches were also widened to make the passage of vessels underneath easier. lights were put on it to be lit all night. and watchmen were put on it for protection and safety of passengers. (this was paid for by tolls of 1/2 d. per horse, 1d. per carriage, and 2d.-1s. for vessels with goods passing underneath.) about 1762, a body of enterprising citizens secured private acts of parliament which allowed them to levy a house tax in return for providing paving and lighting, which then greatly improved, as did sanitation. sidewalks were raised between the street proper and the buildings, replacing the protective posts which had lined the roads. flat stones were put in place of the pebbles on the roadway. signs hanging in from of stores, which had blocked the sunlight, were placed flat in front of the buildings. this also made the streets more airy. the buildings were given numbered addresses and street names were placed on buildings. loading and unloading could not exceed one hour. nuisances like empty carts could be removed. cranes used in warehouses had to be stored in unobtrusive places. one who drove on the foot pavement had to forfeit 10s. for the first offense, 20s. for the second offense, and 40s. for other offenses. wells were dug and pumps erected for watering the streets. pavements were to be repaired on complaint. dust boxes and dust holes were built and had to be used for refuse awaiting pickup by the raker or else forfeit 10s. in 1762, the system of having every man responsible for cleaning the street in front of his door, which occasioned piles of rubbish in the central troughs of the streets waiting for the next rain to be washed away, was abandoned. but house occupants were required to keep the sidewalk in front of their house clean or else forfeit 2s. if one broke a light, he had to pay damages if it was accidental, and also 20s. if willful. wards were to choose substantial inhabitants to be collectors for a year at a time to collect the rates, which were not to exceed 1s.6d. per pound of rents. if one declined to be a collector, he had to forfeit 50 pounds. there were special stands for hackney coaches, which were 12s.6d. for a day of twelve hours. their regulations were extended to sundays. in london, the normal system of building was for builders to buy up leases, put up a new building, and sell it before the lease became due. the rules for party walls between buildings were made more stringent: 2 1/2 bricks thick in cellar, 2 bricks thick to the garret floor, and 1 1/2 bricks above the roofs or gutters. they had to be made of brick or stone. in 1772, rain water from roofs had to be carried to the streets in lead or other pipes that were affixed against the side of the building. in 1774, iron, copper, or other pipe or funnel for conveying smoke or steam were not to be near any inside timber, or in front of most any building or next to any public street, square, or court. in the 1720s firefighters had to fill a tank on a wagon by hand with buckets. on top of the tank was a hose that could spray water high. london parishes were authorized to place upon the water pipes underground stop-blocks of wood with a plug and firecocks to go into such pipe at various distances so that there would be no loss in time in digging down to the pipes to get water to fight fires. parishes were required to keep at known places, ladders and a large engine and a hand engine to throw up water to extinguish fires including one leather hose with socket fitting the plug or firecock, so that buckets would not be needed. the sun insurance company was incorporated for fire insurance in 1711. insurance offices were authorized to employ watermen with poles, hooks, and hatchets to be always ready at a call to extinguish fires. no more than 12 sacks of meal, 12 quarters of malt, 750 bricks, or 1 chalder of coal per load on wagons or carts with wheels bound with [narrow] iron tire are allowed within ten miles of london or westminster, or else forfeit one horse. this is to prevent decay of the roads. for every wagon and cart in london, there must be a person on foot to guide it to prevent the maiming, wounding, and killing of people, especially the old and children, when drivers ride on their wagons and carts. later, it was required that carts must display the name of the owner and be registered. still later, there was a penalty of 10s. for not having a person on foot to guide any cart. later still, in 1757, if a new owner of a cart did not put his name thereon, he had to forfeit 40s., and the cart and horse could be seized and sold to pay the forfeiture. persons willfully obstructing passage on streets with empty carts or barrels or pipes shall forfeit 5-12s. or do hard labor up to one month. the justices of london assessed rates and made regulations for carriage of goods. certain houses and buildings were bought and pulled down to widen several streets, lanes, and passages. in 1774, persons driving cattle in london, whose negligence or improper treatment of such cattle cause them to do mischief shall forfeit 5-20s. or else go to a house of correction for up to one month or be publicly whipped. the roads around london were neither very attractive nor very safe. along them was land covered with water from drains and refuse and dung heaps. hogs were kept in large numbers on the outskirts and fed on the garbage of the town. smoking brick kilns surrounded a great part of london. in the brickyards vagrants lived and slept, cooking their food at the kilns. queen anne's drinking of tea made it a popular drink, but it was still expensive. this habit improved health because to make tea, the water had to be boiled before drunk. breakfast included tea and bread and butter, and later toast with melted butter. the rich also had coffee and chocolate. the morning newspaper was often read at breakfast. the chief dinner dishes were roast beef, roast mutton, boiled beef or pork, with puddings and vegetables. roast meat was still the basic diet of town and country gentlemen. there were also fowls, tripes, rabbits, hares, pigeons, and venison. many elaborate sauces were made. the national dish was the pudding, a compound of steak, kidney, larks, and oyster. drinks included ginger beer, lemonade, barley water, coffee, chocolate, tea, and foreign wine. port from portugal was introduced about 1703, and rum about 1714. rum, made from sugar, first became popular as a medicine, well-whisked with butter. beer was drunk by the poorer and middle classes. the poor could afford very little meat now, unlike 200 years ago. their standard fare was cheese, bread, and tea, the latter of which was usually from used tea leaves bought from rich houses. households were smaller; a peer had a household of about 25-50. the proportion of women grew to one-third to one-half. dinner guests sat and were served in order of rank, with gentlemen on one side of the table and ladies on the other. later, a fashion came in to sit alternately by sex. dinner was in several courses and lasted a few hours. toasts might be made. it was bad manners to put one's elbows on the table, to sniff the food, to eat too slowly or too quickly, to scratch, spit, or blow one's nose at the table, or to pick one's teeth with a toothpick before the dishes were removed. after dinner, the men drank, smoked, and talked at the table. there was a chamber pot under the sideboard for their use. politics was a popular subject. the women talked together in the drawing room. later, the men joined the women for tea and coffee. the evening often finished with card games, reading newspapers, verse-making, fortune-telling, walks in the garden, impromptu dancing, perhaps gambling, and supper. the nobility and gentry became more mobile and now mixed together at parties. at these afternoon parties, there were a variety of simultaneous activities, instead of everyone participating in the same activities together as a group. guests could choose to engage in conversation, news, cards, tea-drinking, music, dancing, and even go into supper at different times. sometimes a man other than her husband escorted a lady to a party. having lovers outside marriage was socially accepted if discrete. single women were discouraged from thinking of their independent status as desirable. their single status was to be regarded as unfortunate. weddings were taking place in public in church instead of privately. brides wore a white silk or satin dress with a train. over one third of brides who were capable of having children were already pregnant when they married. in 1753 a marriage statute required licenses to marry, the consent of parents or guardians for minors to marry, the calling of banns [advance announcement so that anyone could give a reason why the marriage should not take place], and four weeks residence in the parish where the license was given by bishop or other authority. these requirements addressed the problems of the kidnapping of heiresses, prostitutes trapping unwary youths after getting them drunk, and priests performing marriages clandestinely and not in church, which required banns. two witnesses to the marriage were required to sign a certificate of marriage, which was then to be registered in the parish books. manufactured goods relieved ladies from baking of bread, brewing, and spinning. so they often visited with friends, wrote letters, embroidered, and supervised the servants. funerals ceremonies started with socializing at the house with refreshments, then going in a procession to the church for burial, and finally returning to the house for more socializing. it was possible for a woman-covert to be seized of land in fee simple or in tail general or special to her separate use, free from control or intermeddling of her husband. houses were warmed in winter by burning coal. furniture was still sparse. moderate homes had tent-beds in use, with which cloth was hung on all four sides of the bed from a light iron framework above the bed. the beds were warmed with a warming pan heated in a fire before use. there were often bed bugs and fleas. everyone wore nightcaps to bed. pewter tableware was used, but the poor used tinware instead. copper, brass, and iron pots and pans were increasingly common. most towns had a regular market once or twice a week. in them, street cleaning was still a responsibility of individual householders. water was still obtained from wells and pumps. there was no municipal government as such. public works were done by special commissions set up for particular purposes, such as lighting, cleaning and paving the streets, night watchmen, traffic regulation, removing nuisances, and improving local amenities. large towns had hospitals for the poor. in the larger manufacturing towns, there were literary and philosophical societies for debates and discussions. these put together libraries for use of their members. also in these large towns, there were booksellers' shops, printing houses, weekly newspapers, playhouses, concerts, and horseracing courses, the latter of which was mostly patronized by gentlemen. some private citizens of various towns followed the example of london and obtained from parliament the right to levy a house rate for paving and lighting. physicians and lawyers lived in two-story brick mansions with attics and sash windows that could be lifted up and down with the help of a pulley. they had rectangular wood panes each with a sheet of glass cut from a circle of blown glass. the old blown glass was not regular, but had a wrinkled appearance. the center of each pane of glass was thicker with a knot in the middle left from the blow pipe. in front of the house were railings which supported two lanterns at the doorway. towns tended to be known for certain specialties, such as seaside holiday resorts, spas like bath, cathedral towns, fashionable shopping for gentry, and towns with certain industries like glass and china manufacture, pinmaking, pottery, tanning, manufacture of linen, silk, cotton, and the knitting trade. certain towns were famous for certain varieties of wool cloth. before 1750, a town with more than 5,000 inhabitants was considered a large town. shop keeping was supplanting fairs and markets. certain industries were done on a large scale and required workers to be at the same site, e.g. brewing and distilling; building ships; printing fustians; making paper, soap (from animal fat) or candles; coal mining, iron production, mining and smelting of tin and copper, refining of salt, and digging of clay. certain other industries also required some kind of power or team work for their production, e.g. refining sugar; finishing cloth; making bricks; glassmaking; manufacture of ropes and sails, and processing of copper and brass into rods and sheets. often the manufacturer's house was surrounded by the many cottages of his workers. there the wife and children usually were busy carding and spinning. putting out work and subcontracting were widespread and created many small-scale capitalists. workers' hours were typically 6 a.m. to 8 p.m. drovers bought cattle in the countryside, drove them to big towns, and sold them to fattening graziers or fatted them themselves. then they were driven into town and sold to the wholesale butcher, who sold the carcass to the retail butcher, the hides to the tanner, and the bones to the glue maker. flocks of geese were also driven into towns, after their feet were given a protective covering of tar. there were also middlemen wholesalers for cheese, butter, cloth, and iron. there was a rage of distemper among the cattle so serious that to prevent its spread, the king was authorized by parliament to make regulations for prohibiting the removal or sale of cattle and for the burial of distempered cattle. later, the king was authorized to prohibit the killing of cow calves. no one was to sell any ox, bull, cow, calf, steer, or heifer until he had possession of such for forty days or else forfeit ten pounds, later, the king was authorized to regulate the movement of cattle from one place to another. the main industry of the country was still agriculture. in the countryside, about half the arable land was under the open field system, in which land was cultivated in common. enclosures of land were still taking place. the enclosures were now done by statutory commissions to ensure equitable allotments. agricultural improvements came first to enclosed land, which comprised about half of the agricultural land. in the 1733, jethro tull published a book about his 1701 invention of the seed-drill to first pulverize the soil for cultivation without manure and then to deposit seed at a uniform depth in regulated quantities and in rows instead of being thrown haphazardly. also explained was the horse-hoe to stir the soil about the roots of the plants to preserve moisture, promote aeration, admit warmth, and destroy weeds. there were more horses than oxen in use now in the fields. the horse-hoe was first used by large independent farmers on enclosed land. also invented was a threshing machine with a set of sticks to replace hand threshing with flails. under-drainage as well as irrigation was practiced. lord townshend alternated turnips, grasses, and grain in his fields, and thus provided winter food for his cattle. the two-field crop rotation with fallow periods was often displaced by the three-field system rotating grain crops, legumes, and fallowness. independent farming gave rise to the improvement of breeds of livestock by selective breeding. enclosed land produced 26 bushels of grain compared to 18 bushels for common field land. it produced 9 pounds of sheep fleece compared to 3 1/2 pounds for common field land. overall, soils were improved by being treated with clay, chalk, or lime. artificial pasture was extended and there was increased use of clover, sainfoin, and rye-grass. grain productivity was four times that of 1200. a fatted ox was 800 pounds compared to the former 400 pounds which it weighed from the 1300s to the 1600s. the fleece of sheep increased fourfold. by statute of 1756, persons having rights of common in certain land may, by the major part in number and in value of each's tenement, enclose such land for planting and growth of timber or underwood. every village had a smith, carpenter, and miller. the larger villages also had a potter, a turner, a malster, a weaver, a tanner, and perhaps a mercer or grocer middleman. wheelwrights made ploughs, harrows, carts, and wagons. ploughs had one, two, or no wheels. poor farming families took up extra work in the villages such as making gloves, knitting stockings, or spinning yarn. craftsmen still helped farmers at harvest time. much of the rural population was now dispersed over the countryside instead of being concentrated in villages because so many small holders had sold out due to enclosures of farm land, especially of common land and waste land. the rural working class lived in two room cottages, with low ceilings, small windows, and an earth floor. patience was required for those willing to wait for an existing cottage in a village to be vacated. most laborers did not marry unless and until they found a cottage. ancient custom that a person could build a home for himself on waste land if he did it in one night was ceasing to be respected. farmers usually preferred employing day-laborers than keeping servants. there were many migrant workers, mainly from ireland, for the busy summer haymaking and harvesting. the children of laborers and of small farmers had little schooling because they were needed for work. they scared the birds, weeded the fields, picked the stones, tended the poultry, set beans, combed the wool, and collected the rushes and dipped them in the tallow [sheep fat]. farm people relied on well water or rain water collected in lead cisterns. a farmhouse fireplace had pots hung from iron rods. saucepans sat on iron stands, which were stored above the mantel when not in use. spits were rotated by pulleys powered by the upward current of hot air or by a mechanical device. bacon was smoked in the chimney accessible by a staircase or upper floor. there still existed customary freeholders, who owned their land subject to certain customary obligations to the lord of a manor. the people displaced by enclosure became laborers dependent on wages or paupers. their discontent was expressed in this poem: "they hang the man and flog the woman that steals a goose from off the common but leave the greater criminal loose that steals the common from the goose." eventually there was some relief given to the poor workers. by statute of 1773, wastes, commons, and fields having several owners with different interests may by three-quarters vote in number and in value of the occupiers cultivate such for up to six years. however, cottagers and those with certain sheep walks, or cattle pasture, may not be excluded from their rights of common. by statute of 1776, the elizabethan statute restricting locations where cottages could be erected and their inhabitants was repealed because the industrious poor were under great difficulties to procure habitations. land could be rented out at ten times the original value. land was typically rented out for 7, 14, or 21 years. great fortunes were made by large landowners who built grand country estates. the manufacturers and merchants made much money, but agriculture was still the basis of the national wealth. as the population grew, the number of people in the manufacturing classes was almost that of the agriculturalists, but they had at least twice the income of the agriculturalists. the greatest industry after agriculture was cloth. most of this activity took places in the homes, but families could earn more if each family member was willing to exchange the informality of domestic work for the long hours and harsh discipline of the factory or workshop. more wool was made into cloth in the country. dyed and finished wool cloth and less raw wool and unfinished broadcloth, was exported. bleaching was done by protracted washing and open-air drying in "bleach fields". there were great advances in the technology of making cloth. thomas lombe, the son of a weaver, became a mercer and merchant in london. he went to italy to discover their secret in manufacturing silk so inexpensively. he not only found his way in to see their silk machines, but made some drawings and sent them to england hidden in pieces of silk. he got a patent in 1718 and he and his brother set up a mill using water power to twist together the silk fibers from the cocoons into thread [thrown silk] in 1719. his factory was five hundred feet long and about five stories high. one water wheel worked the vast number of parts on the machines. the machines inside were very tall, cylindrical in shape, and rotated on vertical axes. several rows of bobbins, set on the circumference, received the threads, and by a rapid rotary movement gave them the necessary twist. at the top the thrown silk was automatically wound on a winder, all ready to be made into hanks for sale. the workman's chief task was to reknot the threads whenever they broke. each man was in charge of sixty threads. there were three hundred workmen. lombe made a fortune of 120,000 pounds and was knighted and made an alderman of london. after his patent expired in 1732, his mill became the prototype for later cotton and wool spinning mills in the later 1700s. there were many woolen manufacture towns. clothiers might employ up to three thousand workers. at these, the spinning was done by unskilled labor, especially women and children in villages and towns. weaving, wool combing, and carding were skilled occupations. in 1733, clockmaker and weaver john kay invented a flying shuttle for weaving. it was fitted with small wheels and set in a kind of wooden groove. on either side there were two wooden hammers hung on horizontal rods to give the shuttle and to and fro action. the two hammers were bound together by two strings attached to a single handle, so that with one hand the shuttle could be driven either way. with a sharp tap by the weaver, first one and then the other hammer moved on its rod. it hit the shuttle, which slid along its groove. at the end of each rod there was a spring to stop the hammer and replace it in position. it doubled the weavers' output. now the broadest cloth could be woven by one man instead of two. this shuttle was used in a machine for cotton. but the manufacturers who used the flying shuttle combined together and refused to pay royalties to kay, who was ruined by legal expenses. now the price of thread rose because of increased demand for it. the weavers, who had to pay the spinners, then found it hard to make a living. but the process of spinning was soon to catch up. in 1738, john wyatt, a ship's carpenter who also invented the harpoon shot from a gun, patented a spinning machine whereby carded wool or cotton was joined together to make a long and narrow mass. one end of this mass was drawn in between a pair of rotating rollers, of which one surface was smooth and the other rough, indented, or covered with leather, cloth, shagg, hair, brushes, or points of metal. from here, the mass went between another set of rollers, which were moving faster than the first pair. this stretched the mass and drew it into any degree of fineness of thread by adjusting the speed of the second pair of rollers. then the thread went by a flier, which twisted it. after this the thread was wound off onto spindles or bobbins, whose rotation was regulated by the faster pair of rollers. or the mass could be drawn by rotating spindles directly from one pair of rollers. this machine was worked by two donkeys and was tended by ten female workers. because of bankruptcy in 1742, the invention was sold to edward cave, the editor of "gentleman's magazine". he set up a workshop with five machines, each fitted with fifty spindles and worked by water wheels. carding was done by cylindrical carding machines invented by lewis paul. in 1764, the plant was bought by carpenter and weaver james hargreaves. he was watching his wife spin when the spinning wheel tipped over onto its side. it continued to revolve, while the thread, held between two fingers, seemed to be spinning itself, even though the spindle was in a vertical instead of a horizontal position. it occurred to him that a large number of vertical spindles arranged side by side could be turned by the same wheel and that, therefore, many threads could be spun at once. he named his machine the "the jenny" after his wife. this "spinning jenny" could spin a hundred threads at a time. he patented it about 1770. the machine consisted of a rectangular frame on four legs. at one end was a row of vertical spindles. across the frame were two parallel wooden rails, lying close together, which were mounted on a sort of carriage and slid backwards and forwards as desired. the cotton, which had been previously carded, stretched, and twisted passed between the two rails and then was wound on spindles. with one hand the spinner worked the carriage backwards and forwards, and with the other he turned the handle which worked the spindles. in this way, the thread was drawn and twisted at the same time. the jenny did the work of about 30 spinning wheels. no longer did it take ten spinners to keep one weaver busy. but manufacturers refused to pay him royalties for his invention. he was offered 3,000 pounds for his rights in the jenny, but refused it. the courts held that the model of his jenny had been used in industry before it was patented and any rights he may have had were declared to have lapsed. nevertheless, he made over 4,000 pounds. the spinning jenny was used in many homes. richard arkwright came from a poor family and was taught to read by an uncle. he became a barber and made wigs. he taught himself crafts necessary to invent and patent in 1769 a spinning frame worked by a water wheel, which he called a" water frame". he strengthened cotton thread by adding rollers to the spinning process which were able to strengthen the cotton thread and make it of even thickness so that it could be used instead of costly linen as the warp. with capital from two rich hosiers, he set up a workshop next to a swift and powerful river running down a narrow gorge. then he turned his attention to weaving this thread with multiple spinning wheels in the first practical cotton mill factory. in 1773, he set up weaving workshops making pure cotton calicoes which were as good as indian calicoes. he confronted the problem of a statute of 1721 which proscribed wearing or using printed, painted, stained or dyed calicoes e.g. in apparel, bed, chair, cushion, window curtain, and furniture, except those dyed all in blue, or else forfeit 20 pounds by a seller, 5 pounds by a wearer, and 20 pounds by other users. the purpose was to provide wool-working jobs to the poor, whose numbers had been increasing excessively because of lack of work. arkwright argued that the statute should not include printed or painted cloth made in great britain in its ancient tradition of fustians with an all linen warp (for strength) and a cotton weft (for fineness). this statute was so "clarified" in 1735. when wool-weavers had expressed their opposition to imported printed cottons and calicoes by tearing them off people, a statute of 1720 provided that any one who willfully and maliciously assaulted a person in the public streets or highways with an intent to tear, spoil, cut, burn, or deface the garments or clothes of such person and carried this out was guilty of felony punishable by transportation for seven years. the prohibition against the manufacture and wearing and using of pure cotton fabrics came to an end in 1774 on arguments of arkwright made to parliament that his pure cottons would bleach, print, wash and wear better than fustians. this was the first all-cotton cloth made in england. in 1775, arkwright added machines to do work prefatory to spinning. raw cotton was first fed by a sloping hose to a feeder that was perpetually revolving. from here it went a carding machine of three rollers of different diameters covered with bent metal teeth. the first, with teeth bent in the direction of its revolution, caught up the cotton fibers. the second, revolving in the same direction but much faster, carded the fibers into the requisite fineness by contact with the third, whose teeth and motion were in the opposite direction. next, a crank and comb detached the carded cotton so that it came off as a continuous ribbon. then the ribbon went into a revolving cone, which twisted it on itself. eventually arkwright became rich from his creation of the modern factory, which was widely imitated. he established discipline in his mills and he made his presence felt everywhere there, watching his men and obtaining from them the steadiest and most careful work. he provided housing and services to attract workers. after cotton, the inventions of the spinning jenny and the waterpowered frame were applied to wool. silk and cotton manufacture led the way in using new machinery because they were recently imported industries so not bound down by tradition and legal restraint. yarn production so improved that weavers became very prosperous. cards with metal teeth were challenging the use of wood and horn cards with thistles on them in carding wool. merchants who traveled all over the world and saw new selling opportunities and therefore kept encouraging the manufacturers to increase their production and improve their methods. factory owners united to present suggestions to parliament. manufacturing broke loose from traditional confines in several ways. to avoid the monopolistic confines of chartered towns, many entrepreneurs set up new industries in birmingham or manchester, which grew enormously. manchester had no municipal corporation and was still under the jurisdiction of a manor court. it sent no representative to the house of commons. all over the country the justices of the peace had largely ceased regulating wages, especially in the newer industries such as cotton, where apprenticeship was optional. apprenticeship lapsed in many industries, excepting the older crafts. several legal decisions had declared seven years practice of a trade as good as an apprenticeship. apprentices still lived in their masters' houses and were still treated as family members. the regulations of the cutlers' company remained in force as its masters used their great manual skill to make cutlery in their own homes with the help of their children and apprentices. trades in some towns which had guild regulations that had the force of law hung on to their customs with difficulty. although there were few large factories in the country under effective management of a capitalist, trade unionism was beginning as two distinct classes of men were being formed in factories. the factory owner was so high above his workmen that he found himself on the same level as other capitalists, the banker, who gave him credit, and the merchant, who gave him customers. journeymen in factories could no longer aspire to become masters of their trade and no longer socialized with their employers. hard and fast rules replaced the freedom of the small workshops. each worker had his allotted place and his strictly defined and invariable duty. everyone had to work, steadily and without stopping, under the vigilant eye of a foreman who secured obedience by means of fines, physical means, or dismissals. work started, meals were eaten, and work stopped at fixed hours, signaled by the ringing of a bell. factory hours were typically fourteen hours or more. organized resistance, as usual, began not with those most ill-treated, but with those men who had some bargaining power through their skills. wool-combers, who worked next to a charcoal stove where they heated the teeth of the comb, were the most skilled of the cloth industry were hard to replace. since they were nomadic, they quickly organized nation-wide. they agreed that if any employer hired a comber not in their organization, none of them would work for him. they also would beat up and destroy the comb-pot of the outsider. in 1720 and 1749, the tiverton wool-combers objected to the import of combed wool from ireland by burning irish wool in clothiers' stores and attacking several houses. they had strike funds and went on strike in 1749. their bloody brawls caused the military to intervene. then many of them left town in a body, harming the local industry. the earnings of wool-combers was high, reaching from 10s. to 12s. a week in 1770, the highest rate of a weaver. in 1716, the colchester weavers accused their employers of taking on too many apprentices. when the weavers organized and sought to regulate the weaving trade, a statute was passed in 1725 making their combinations void. strike offenses such as housebreaking and destruction of goods or personal threats had penalties of transportation for seven years. still in 1728, the gloucester weavers protested against men being employed who had not served their apprenticeship. when the journeymen tailors in and around london organized, a statute made their agreements entering into combinations to advance their wages to unreasonable prices and to lessen their usual hours of work, illegal and void, because this had encouraged idleness and increased the number of poor. tailors' wages are not to exceed 2s. per day and their hours of work are to be 6 a.m. to 8 p.m. for the next three months, and 1s.8d. per day for the rest of the year. a master tailor paying more shall forfeit 5 pounds. a journeyman receiving more shall be sent to the house of correction for 2 months. justices of the peace may still alter these wages and hours depending on local scarcity or plenty. despite this statute, the journeymen tailors complained to parliament of their low wages and lack of work; their masters called them to work only about half the year. there was much seasonal fluctuation in their trade as there was in all trades. the slack period for the tailors was the winter, when the people of fashion retired to their country estates. after their complaint, their wages then rose from 1s.10d. per day in 1720, to 1s.8d.2s. in 1721, to 2s.2s.6d. in 1751, to 2s.2d.2s.6d. in 1763, to up to 2s.7 1/2 d. in 1767, and to 3s. in 1775. foremen were excluded from wage control. when they complained of their long hours, which were two hours longer than the 6 a.m. to 6 p.m. of most handicraft trades, their hours were reduced in 1767 by one hour to 6 a.m. to 7 p.m. and their pay was set at 6d. per hour for overtime work at night during periods of general mourning, e.g. mourning for a deceased courtier. their work hours were lowered another hour to 6 a.m. to 6 p.m. in 1768. the stocking frame-knitters guild, which had been chartered in 1663, went on strike to protest the use of workhouse children as an abuse of apprenticeship which lowered their wages. they broke many of their frames, which belonged to their employers, to limit their number. in 1749, combinations to advance wages, decrease hours of work, or regulate prices were declared void for journeymen dyers, journeyman hot pressers, all wool workers, brickmakers and tilemakers, journeymen servants, workmen, laborers, felt and hat makers, and silk, linen, cotton, iron, leather, and fur workers in and around london. the penalty was prison or hard labor at a house of correction for three months without bail. in 1756, justices of the peace were to determine the rates of wages of wool workers according to numbers of yards. but this was repealed the next year to prevent combinations of workers. wage agreements between clothiers and weavers were declared binding. clothiers not paying wages within two days of delivery of work were to forfeit 40s. in 1763 the silk weavers in east london drew up a scale of wages, and upon its being rejected, 2000 of them broke their tools, destroyed the materials, and left their workshops. a battalion of guards had to take possession of the area. in 1765, the silk weavers marched on westminster to stop the import of french silks. in 1768, the weavers rebelled against a 4d. per yard reduction in their wages, filling the streets in riotous crowds and pillaging houses. after the garrison of the tower came, the workmen resisted with cudgels and cutlasses, resulting in deaths and woundings. the throwsters [those who pulled the silk fibers from the cocoons of the silk worms and twisted them together to make a thread] and the handkerchief weavers also became discontent. a battle between soldiers and silk weavers at their meeting place resulted in several men on both sides being killed. in 1773, wages and prices for the work of journeymen silk weavers in and around london were designated to be regulated by the mayor and justices of the peace. foremen were excluded. no silk weaver was to more than two apprentices or else forfeit 20 pounds. journeymen weavers entering into combinations shall forfeit 40s. this statute satisfied the weavers, but they formed a union to ensure that it was followed. in 1750, 1761, and 1765, there were strikes which stopped the work of the coal industry and harbor at newcastle for weeks. in 1763, the keelmen formed a combination to force their employers to use the official measure fixed by statute for the measurement of loads of coals. the book "consideration upon the east-india trade" dating from 1701 advocated free foreign trade. it argued that the import of goods from india not only benefited the consumer but also the nation, because it was a waste of labor to use it in producing goods which could be bought cheap abroad. this labor could be better put to use in new industries, at easily learned plain work. also the low cost of imported goods would motivate the invention of machines in the nation which would be even more efficient in manufacturing these goods. but english manufacturers were still suspicious of free trade. making beer and distilling gin from barley were widespread. the pastimes of gambling and drinking were popular with all classes. in the trades, this was promoted by the uncertainties of life and work and a general sense of instability. many london tradesmen started their day with a breakfast of beer, bread, and cheese, the traditional breakfast of countrymen. gambling and dissipation reduced some london men with good businesses to destitution, the work house, or street begging. drunken gentlemen played pranks such as imitating a woman in distress or throwing a person in a horse trough. some innkeepers had "straw houses" where customers who were so drunk they were unable to walk home could sleep in fresh straw. a person could get drunk for a few pence. gambling with cards was a popular pastime after dinner. cricket matches were played by all classes instead of just by humbler people; there were county cricket matches. gentlemen often took their coachmen with them to public events such as cricket matches. tennis was a sport of the wealthy classes. billiards, chess, and games with cards or dice were played, especially in alehouses. there was horse racing on any open ground to which people brought their horses to race. jockeys tried to unseat each other. hunting of rabbits and then foxes replaced deer hunting. bird and duck hunting was usually with flint lock guns instead of hawks, as the hedges provided cover from hawks. there was fishing with line, hook, and bait. watching the hanging of felons, about 35 a year in london, was popular, as was going to bedlam to watch for a fee the insane being flogged. people went to the tower to try to get a glance at a famous prisoner looking through a window or taking a walk along the battlements. besides the grand pleasure gardens for gentry, there were lesser pleasure gardens in london for working families, which offered fresh air, tea, beer, swimming, fishing, courting, bowling, and cheap entertainment. running, vaulting, and leaping were still popular in the countryside. fairs had amusements such as fire swallowers, ventriloquists, puppet shows, acrobats, jugglers, animal performances, pantomimes, boxing, dwarfs, and albinos, but less trading. in 1769 was the first circus. circuses included feats of horsemanship and clowns. there was also eating and drinking competitions, foot races, football, archery, some wrestling, and some bowling on greens or alleys. in winter there was ice skating with blades and sliding. the right of public access to st. james park became entrenched by the 1700s. there was sailing, rowing, swimming, and hopscotch. george iii made sea-bathing popular and it was supposed to be good for one's health. there was steeple chasing as of 1752. horse-racing was given rules. on sunday, there was no singing, music playing, dancing, or games, but the bible was read aloud, prayers were said, and hymns were sung. sabbath-breakers were fined by magistrates. men often spent sunday in a tavern. in general, commodity prices were stable. but when harvests were poor, such as in 1709 when there was famine, and between 1765 and 1775, bread prices rose. the price of wheat in london, which since 1710 had been between 25s. and 45s., rose to 66s. in 1773. then the poor engaged in food riots. these riots were often accompanied by mob violence, burning, and looting of grain mills, shops, and markets. the english economy was so dependent on foreign trade, which had trebled since the 1710s, that the slightest disturbance in the maritime trade threatened the english with starvation. in many localities the men in need of parochial relief were sent around from one farm to another for employment, part of their wages being paid from the poor rates. the poor often went from parish to parish seeking poor relief. settled people tended to fear wandering people. parishes sought to keep down their poor rates by devices such as removing mothers in labor lest the infant be born in the parish. so a statute was passed that a child born to a wandering woman may not have the place of birth as his settlement, but takes the same settlement as his mother. another device to prevent others from establishing settlement in a parish was for its farmers to hire laborers for only fifty-one weeks. also, some apprentices were bound by means other than indenture to avoid settlement. laborers who came to work in industries were refused settlement and sent back to their original parishes whenever they seemed likely to become dependent on the rates. statutes then provided that a parish must give settlement to apprentices bound for forty days there, not only by indenture, but by deed, writings, or contracts not indented. in 1722, parishes were authorized to purchase houses in which to lodge or employ the poor and to contract with any person for the lodging, keeping, maintaining, and employing of the poor. these persons could take the benefit of the work, labor, and service of these poor, which would then be used for the relief of other poor. the poor refusing such lodging could not then get relief. many of the poor starved to death. the propertied classes turned a blind eye to the predicament of the poor, opining that they were idle or could save more and did not need higher earnings. charitable organizations gave to the poor and set up all day sunday schools to set wayward children on a moral path. the sunday schools could accommodate children who worked during the week. punishment of children by parents or others could be by whipping or even sitting in stocks. about half of the people were dependent on poor relief or charities. desertion by a man of his family was a common offense. parishes providing upkeep for the family sent men to find the errant husbands. the parish would ask unmarried mothers who was the father of their child and then force him to marry her or pay for the upkeep of the child. he often made a bargain with the parish to release him of his obligation for a sum of money paid to the parish. but many young parish children died of neglect, and later, parishes were required to list children under four to aid in accounting for them. divorces were still few and expensive, but increasing in number; there were more 60 in this period. it was easier for a man to get a divorce for one act of adultery by his wife, than for a wife to get one for habitual unfaithfulness. vagrants and other offenders could be committed to houses of correction as well as to county gaols, because of the expense of the latter. crime was exacerbated by orgies of liquor drinking by the common people, especially between 1730 and 1750, the sale of which did not have to be licensed as did ale. in 1736, it was required that retailers of brandy, rum, and other distilled spirituous liquors be licensed and to pay 50 pounds a year for their license, because excessive use had been detrimental to health, rendering persons unfit for useful labor and business, debauching their morals, and inciting them to vices. only persons keeping public victualing houses, inns, coffee houses, alehouses or brandy shops who exercised no other trade were allowed to obtain a license. this excluded employers who had sold liquors to their journeymen, workmen, servants, and laborers at exorbitant prices. street vendors who sold liquors had to forfeit 10 pounds. a duty of 20s. per gallon was imposed on the retailers. there were riots in london against this statute and its new duties. there had been a tremendous growth in liquor drinking, which did not stop but went underground after this statute. in 1753, a penalty of 10 pounds or hard labor for two months was made for selling spirituous liquors without a license. also licenses were restricted to people who were certified by four reputable and substantial householders to be of good fame and sober life and conversation. sellers had to maintain good order in their premises or else forfeit 10 pounds. about 1754 only innkeepers, victualers, and vendors paying rent of at least 200 shillings could sell gin at retail. the punishment for the second offense was whipping and imprisonment. that for the third offense was transportation. about 1754 only innkeepers, victualers, and vendors paying rent of at least 200 shillings could sell gin at retail. the punishment for the second offense was whipping and imprisonment. that for the third offense was transportation. in 1751, additional duties were placed on spirituous liquors to discourage immoderate drinking going on by people of the meanest and lowest sort to the detriment of the health and morals of the common people. in 1761, these duties were again raised. in 1768, officers were authorized to seize all horses, cattle, and carriages used to transport foreign spirituous liquors for which duties had been evaded. in 1773, the penalty for selling without a license was raised to 50 pounds, which could not be mitigated below 5 pounds. half the forfeiture was to go to the suer. the informer system for enforcing laws had its drawbacks. informers were not trained and were sometimes retaliated against for informing. sometimes this meant being tortured to death. sometimes there were schemes in which a leader of thieves, would take a profit in the stolen goods by posing as a good citizen who tracked down and returned them to the owners for a fee. also he might inform on his companions to get the reward for informing or to punish a troublesome one. sometimes the owner of goods was involved in a fake robbery. an effort in 1749 to turn the whole haphazard system of informers, into a specialized organization for the detection and apprehension of criminals had caused a mob to form and make threats; englishmen associated a police force with french tyranny. nevertheless, about 1750, sir john fielding, a bow street magistrate, and his half-brother picked men to police the street under the direct control of the bow street magistrates. this first police district made an impact on the increasing violence of the times. in 1753, a proposal before parliament to have a national census was also defeated by public fear of liberty being curtailed by having to make account of the number and circumstances of one's family and giving out information that could be used by enemies both in the realm and abroad. though grammar schools were endowed for the education of local poor boys, they sought fee-paying sons of gentlemen. they now taught arithmetic as well as reading and writing. translation and reading of latin was still important, e.g. aesop's fables, virgil, cicero's letters, caesar's commentaries, horace, pliny, juvenal, ovid, livy, and plautus. the "eton grammar" book replaced the "royal grammar" as the standard for latin and english grammar. the boys lived in boarding houses superintended by "dames" or older boys. there were usually two boys to a bed. there was bullying and initiation ceremonies such as tossing small boys up from a held blanket or having younger boys run naked in the snow. there were occasional rebellions by the boys and fights with the townspeople. flogging with a birch or caning with a rod until blood was drawn from the bare buttocks was the usual punishment. there were some national boys' boarding schools such as eton, winchester, and westminster. in these schools, boys could mix with sons of rich and powerful people, thus establishing important connections for their adult life. but there was more bullying of small boys by large boys at these schools and the smaller boys became menial servants of their seniors. occasionally there were student riots. however, most grammar schools were not residential. because the grammar schools were limited to boys, many boarding schools for girls were established. tradesmen's daughters were often sent to these to learn to act like ladies. most upper class girls were taught, at home or at school, english, writing, arithmetic, drawing, courtly dancing, needlework, music, and french. dissenting academies were established for those who did not pass the religious tests of the grammar schools. pencils were now in use. sons of gentlemen usually took "the grand tour" of the continent before going to university. these tours lasted for months or years, and always included paris and a protestant french university. the students went in groups with tutors. the chief purpose was now cultural, instead of practical. on these tours there was often misbehavior such as drinking and fighting. in 1720, travelers checks were developed for those on the grand tour. the universities began to teach science. the new professorships at cambridge university were: chemistry, astronomy, experimental philosophy, anatomy, botany, geology, geometry, and arabic. ideas in geology challenged the bible's description of the creation of the world and there was a controversy over the origin and nature of fossils. in 1715, a large pointed weapon of black flint was found in contact with the bones of an elephant in a gravel bed in london. oral and written examinations began to replace disputations. few professors lectured. dissenters were excluded from universities as well as from offices and grammar schools. oxford and cambridge universities were open only to members of the church of england, so other universities were established for dissenters. they taught geography, mathematics, science, physics, astronomy, mechanics, hydrostatics, and anatomy. at oxford and cambridge and harvard universities, students in science were relegated to different instructors, buildings, and degree ceremonies than students in literature, who often looked down on them as socially and intellectually inferior. the inns of court had ceased to provide residence. the period of education at law school at the inns of court was now reduced in 1760 from seven to five years for ordinary students and to three years for graduates of oxford or cambridge universities. the textbooks were: "doctor and student" by christopher saint-german (1518) and "institutes of the laws of england" by thomas wood (1720). most landed families tried to ensure that at least one member of the family in each generation was educated at the inns of court after going to oxford or cambridge. in 1739, attorneys formed a "society of gentlemen practitioners in the courts of law and equity". in order to earn a living, most attorneys had to attach themselves to some great patron and serve his interests. so it was hard for an ordinary person to find an impartial attorney or to find any attorney willing to contest a powerful family. the first encyclopedia came into existence in 1728. in 1740 was the first public circulating library in london. samuel johnson put together the first dictionary in 1755. it standardized spelling and pronunciation. then came dictionaries for the arts, sciences, and commerce. there were histories with political biases such as the earl of clarendon's "history of the great rebellion". alexander pope wrote witty satire on human faults of the period such as "rape of the lock". daniel defoe wrote "robinson crusoe", "moll flanders", and "the poor man's plea" protesting disparity of judicial treatment of rich and poor, for instance for drunkenness. henry fielding wrote one of the first novels: "tom jones". joseph addison wrote essays on social behavior. jonathan swift wrote the satire on the times, "gulliver's travels". samuel richardson wrote some of the first novels, such as "clarissa"; he wrote on values such as religious faith, moral virtue, and family closeness. catherine macaulay started writing her weighty and impressive "history of england". many schoolmistresses wrote textbooks on a variety of subjects. poet and essayist hester chapone wrote "letters on the improvement of the mind". elizabeth carter wrote poetry and translated greek works; her work was published in "the gentleman's magazine". hannah more wrote the play "the inflexible captive". the diaries of caroline girle powys daniel told of her extensive travels in the nation, and the various life styles of polite society she visited. defoe's newspaper was the first great political journal. he claimed that the people have a right to control the proceedings of parliament. essayists like richard steele, who introduced the periodical essay in his newspaper, and joseph addison, in his newspaper, wrote in a conversational style about the social life around them and the thoughts and behavior of common men and women in a light and good-humored way. they separated humor from the old-style farce and gave it taste and gentility. and with this came a moderation, reserve, and urbanity in matters of religion, politics, and society. religious issues even became a matter of indifference. fairies, witches, astrology, and alchemy were no longer taken seriously by educated men. tales of fairies, witches, ghosts, and miracles were deemed appropriate for children. childrens' stories were becoming a distinct literary form. nursery rhymes included "hush-a-bye baby on the tree top" and the five little piggies. "mother goose's melody" was published in 1765. there were picture books for children such as cinderella, red riding hood, and sleeping beauty. craftsmen made small models of their wares, such as dolls' china, dolls' furniture, silver, and flat lead soldiers. babies had rattles and teething rings. in 1710 copyrights for books was given for 14 years, renewable for another 14 years. alexander pope's translation of the iliad and odyssey made him financially independent. he collected advance payments from subscribers who would be listed in the book. a new book industry emerged in london with booksellers as master manufacturers who employed writers, authors, copyers, and subwriters. booksellers sold books of sermons, histories, political and literary satires, literary criticism, and dictionaries. there was a growing popularity of novels. books were expensive to buy. regular magazines on the new and strange were published. there were three daily, six weekly, and ten thrice yearly newspapers. newspapers increased in number from 8 founded in 1700 to a total of 25 in 1727. by 1753, there were over a million throughout the country. workmen usually began their day by reading a newspaper at a coffee house. authors of books which have been registered at the stationers hall shall have the sole liberty of printing and reprinting such book for 14 years. others who print or sell or publish such shall forfeit the books and pay one penny for each sheet found in their custody, 1/2 to the queen and 1/2 to the suer. the printer shall give a copy of each book printed to the company of stationers, the royal library, the libraries of the oxford and cambridge universities, and certain other libraries. in 1775, the two universities in england, the four universities in scotland, and the several colleges of eton, westminster, and winchester were given in perpetuity a copyright in books given or bequeathed to them. the british museum was incorporated to hold the collections of robert cotton of manuscripts, books, records, coins, and medals and of hans sloane, which contained rare books, coins, precious stones, pictures, plants, and mathematical instruments and had been left to the public. italian opera was introduced in 1706 by georg handel on his visit to england. his music became the standard music of georgian england. the academy of ancient music was founded in 1710. it set the standard of selection and performance. in existence were the violin (including ones made by stadivari), viola, cello, double bass, oboe, trumpet, clarinet, bassoon, trombone, horn, flute, harp, organ, harpsichord, in which the strings were plucked, and piano, in which the strings are struck by little hammers. orchestras had at least thirty members. many hymns were written. painting by artists developed. gentlemen had portraits painted of their horses and dogs as well as of family. joshua reynolds painted the wealth and beauty of england. painters such as gainsborough did landscapes and dramatic history paintings too, but neither of these sold as well as portraits. scenery was painted for the theater. places of business had signs painted which portrayed animals. coaches were painted with mythological creatures and such. gentlemen collected antique statuary and painting, such as by rembrandt and rubens. in 1711 an academy of painting was founded, which included women painters. the first public exhibition of paintings was in 1760. the society of artists was formed in 1761 and incorporated by royal charter in 1765. this differentiated them from the painter-stainers company of face painters, coach painters, and house painters. the royal academy of london was founded in 1768 to merge all private academies and societies into one official body and to recognize the best artistic work. joshua reynolds was its first president. it was at first financed by the king. under george i, sculptors became distinct from masons. they did monuments and portrait busts of the royal family, nobles, and great men. from italian influence, palladian architecture came into vogue. it was typified externally by a panoramic look achieved by horizontal lines, balanced alternatives of plain wall and openings, and portico with a heavy pediment like the front of a roman temple. stucco was often used to plaster housefronts, flute columns, and ornament pediments. architects took students. designers of engraved, etched, and historical prints were given the sole right to print them for 14 years. copiers had to forfeit 5s. per print. foreigners were now interested in learning about english life, philosophy, and opinion. they learned english to read english literature such as shakespeare. no longer were france and italy the only centers of culture and influence on other nations. by 1713, england was the leading sea power by far. the royal society was still the principal focus of scientific activity. issac newton was its president for several years and drew in more foreigners. its members were mathematicians, chemists, botanists, physicians, engineers, authors, poets, and theologians. papers given there generated much discussion at its meetings. newton opined that particles attract each other by some force in a similar way that large bodies attracted each other. this force in immediate contact was exceedingly strong, at small distances performed chemical interactions, and at greater distances had no effect. also there were local associations and societies. there were learned journals such as "philosophical transactions". in 1714, the mercury thermometer was invented by gabriel fahrenheit of germany; this was much more accurate than the alcohol and water thermometers. sweden's anders celcius invented the celsius scale. the hydrometer, which measures air humidity, was also invented. these made possible weather forecasting. in 1718, the french chemist etienne geoffroy published a table of affinities among chemical substances, a precursor to the periodic table of elements. carolus linneaus, a swedish naturalist and botanist, established the scientific method of naming plants and animals by genus and species. when he showed that there was a sexual system in plants, church authorities were so shocked that they suppressed this knowledge as they did other scientific knowledge. rev. stephen hales made ventilators for ships, prisons, and granaries, using the method of injecting air with bellows. this saved many lives in the prisons. in 1727, he discovered that water that plants lost by evaporation was restored by the roots up the stems. he found that gas could be obtained from plants by dry distillation and invented a way to collect gases by heating certain substances. hans sloane, the son of a receiver-general of taxes, who became a physician, had collected hundreds of species of plants in jamacia while physician to its governor. he became physician to george ii and was a benefactor to many hospitals and devised a botanic garden in london for the society of apothecaries. italian luigi marsigli started the science of oceanography with a treatise discussing topography, circulation, ocean plants and animals, along with many measurements. frenchman jean-etienne guettard prepared the first true geological maps, showing rocks and minerals. he identified heat as the causative factor of change in the earth's landforms. john mitchell studied earthquakes. in 1735, george hadley, a london lawyer and philosopher, determined that the cause of the prevailing westerly winds was the rotation of the earth to the east. benjamin franklin in 1743 observed that a particularly violent storm occurred in boston a day after a particularly violent occurred in philadelphia, and realized that they were the same storm, even though the storm's surface winds were from the northeast. he determined that atlantic coastal storms traveled from the southwest to the northeast. in 1770, he prepared the first scientific chart of the gulf stream. daniel bernoulli, a swiss university lecturer in physics, mechanics, medicine, and anatomy, proved his theorem that any degree of statistical accuracy can be obtained by sufficiently increasing the observations, thereby also representing the first application of calculus to probability theory. in 1738, he showed that as the velocity of horizontal fluid flow increases, its pressure decreases. this followed from his theorem that the total mechanical energy of a flowing liquid, comprising the energy associated with fluid pressure, the gravitational potential energy of elevation, and kinetic energy of fluid motion remains constant; that is, the mechanical energy is conserved. this was the first mathematical study of fluid flow. he demonstrated that the impact of molecules on a surface would explain pressure, and that assuming the constant random motion of molecules, pressure and motion will increase with temperature. he explained the behavior of gases with changing pressure and temperature, establishing the kinetic theory of gases. jean nollet from france discovered osmosis, the passage of a solution through a semi-permeable membrane separating two solutions with different concentrations. in 1754, scotsman physician joseph black identified carbon dioxide, the first gas recognized as distinct from everyday breathing air. he did this by using a balance to weigh alkalies before and after exposure to heat. they lost weight by losing carbon dioxide. his development of the concept of latent heat, the quantity of heat absorbed or released when a substance changes its physical phase at constant temperature, was the first application of quantitative analysis to chemical reactions. he ascertained the effects of carbon dioxide on animals and its production by respiration, fermentation, and burning of charcoal. at this time, all flammable materials were thought to contain "phlogiston", which was given off as they burned and was associated with the transfer of heat. plants were thought to remove phlogiston from the air and therefore burned when they were dry. in 1773, joseph priestly, a nonconformist minister, schoolmaster, and tutor, discovered oxygen by heating red oxide of mercury. he became interested in the study of gases by watching the process of fermentation in a brewery next to his house. his gas collection techniques enabled him to work with gases soluble in water. he showed that the processes of combustion, respiration, and putrefaction caused one-fifth of air exposed over water to disappear, and that plants restored air vitiated by these processes. when he isolated oxygen, he noted that it was better than air in supporting respiration and combustion produced by heating certain metallic nitrates. it was called "respirable air". hydrogen (inflammable air) and nitrogen were discovered. the differences between acids, bases, and salts and their relationship to one another became understood. there was some theoretical as well as empirical knowledge about metals, e.g. in boiling points, intermetallic compounds, and changes in properties. in 1742, benjamin frankin invented the franklin stove, which greatly improved heating efficiency. as a freestanding cast-iron fireplace, it supplied heat in all directions instead of only from the one direction of the usual wall fireplace. also, the heat absorbed by its cast-iron sides provided warmth even after the fire went out. static electricity was being discerned. it had been noticed that shaking a mercury barometer produced a strange glow in its "vacuum". experiments showed that a glass rubbed in vacuo would shine brightly and that an exhausted glass globe rapidly whirled on a spindle and rubbing against the hand produced a brilliant glow. and further, as newton wrote: "if at the same time a piece of white paper or white cloth, or the end of ones finger be held at the distance of about a quarter of an inch or half an inch from that part of the glass where it is most in motion, the electric vapor which is excited by the friction of the glass against the hand, will by dashing against the white paper, cloth, or finger, be put into such an agitation as to emit light, and make the white paper, cloth, or finger, appear lucid like a glowworm". in the study of electricity, conductors and insulators were recognized. there were demonstrations of electrical phenomena such as seeing the ignition of brandy by a spark shooting from a man's finger and the feeling the transfer of an electrical impulse created from a rubbed glass globe among a circle of people by their holding hands. in 1733, frenchman charles dufay discovered that there are two types of static electric charges, and that like charges repel each other while unlike charges attract, linking electricity to magnetism. in 1750, benjamin franklin "caught" lightning with a sharp pointed wire attached to the top of a kite which led down to a key at the other end. when a thunder cloud electrified the kite, a charge could be seen coming from the key to an approaching finger. this charge was then stored in an early type of capacitor (1745 leyden jar) and then reproduced to create the same feeling of transfer of electrical impulse among a circle of hand-holders, thereby illustrating that it was the same phenomenon as electricity. this countered the theological belief that thunder and lightning were signs of divine displeasure or the work of the devil. he invented the lightening rod, which was then used to protect houses. about ten years later, the first lightening rod on an english church was erected, which showed the church's acceptance of his theory. franklin theorized that there were electric charges everywhere and designated them as positive or negative. he observed that opposite charges attracted each other, but that like charges repelled each other. in 1766, joseph priestly did an experiment suggested by franklin and showed that electrical force follows the same law as gravitational force; that is, that the attraction or repulsion between two electrical charges varies inversely in proportion to the square of the distance between them. joseph-louis lagrange from france developed differential equations. natural history museums were established. a group split off from the royal society to show collections of curiosities. in 1754, a self-educated mechanic founded the society for the encouragement of arts, manufactures, and commerce. it had sections on agriculture, manufactures, mechanics, chemistry, liberal arts, and trade and colonies. it sponsored contests at which prizes were given, such as that in 1761 for the best invention of a machine that would spin six threads of wool, flax, cotton, or silk at onetime with only one person attending it. machines still mostly relied on human, animal, and water power. abraham darby was a quaker and millwright who made large cooking pots of iron, which cost less than bronze. around 1709, he experimented with various substances to take the place of wood charcoal in iron smelting. coal was a remote possibility. in forging or working metals coal had more or less the same qualities as wood charcoal, but this was not the case in smelting ores, especially iron ore. coal contained sulphur compounds which caused the iron ore to deteriorate. so he controlled the burning of coal to burn out these impurities, which produced coke. his son took over after his death and improved the methods of coking, strengthened the bellows, and added ore limestone and other reagents to the mixture. by 1756, his large blast furnace using both pit coal and wood charcoal was very productive. he made iron goods of such quality as those previously imported. in 1767, richard reynolds replaced the wooden rails connecting a blast furnace to mines with cast iron rails. he had apprenticed as a grocer and then became a partner in a large ironworks of darby with a man whose daughter he married. after darby died and before darby's sons became of age, reynolds was in charge of the ironworks. he cast cylinders of the early steam engines. in 1749 john roebuck, a physician and son of a prosperous manufacturer of sheffield goods, found a cheaper way to manufacture sulphuric acid. he did this by using leaden chambers instead of glass globes to collect the vapor from burning nitre and sulphur over water. this reduced the cost of sulfuric acid to one-fourth of its previous cost, so that sulfuric acid came to be used to bleach linen instead of sour milk. he also made cast iron into malleable iron by smelting iron using coke from pit-coal instead of charcoal. but flooding in his mines and further ventures resulted in his ruin and bankruptcy. thomas newcomen, a baptist ironmonger, blacksmith, and locksmith, supplied iron tools to mine workers. he was aware of the problem of flooding of mines and the awkward system of pumps which were used one above the other and were powered by teams of horses. he made a very valuable contribution to power generation by inventing the atmospheric pressure steam engine with piston around 1712. he did this by connecting theory with experiment, through the use of scientific knowledge, especially the royal society's investigation into atmospheric pressure. first cold water was poured on a cylinder in which a piston could move up and down. this caused steam inside the cylinder to cool and condense into water. the vacuum created inside the cylinder under the piston caused atmospheric pressure on top of the piston to push the piston down. the piston was attached by a rod to the end of a beam which end then swung down from a point on a vertical stand to which it was attached. when the beam swung, its other end, which was attached to a rod connected to a pump, rose, thus working the pump. then steam from water heated in a boiler under and communicating with the cylinder was allowed into the cylinder under the piston. this overcame the atmospheric pressure on the piston from above and allowed the piston to rise by a counterweight on the rod over and connecting to the pump. boys opened and closed the steam valve, which let steam into the cylinder from below, and the water valve, which let cold water pour on the cylinder from above. then the boys were replaced by the valves being connected to the swinging beam which caused them to open and close at perfectly regular intervals. a story gives the credit for this improvement to an inventive valve boy who wanted to play with his friends. in 1712, the mining industry used this steam engine to pump water out of mine-shafts which had flooded. these engines were also used to supply water to reservoirs locks at canals, and drinking water facilities in towns. one such engine developed power equivalent to fifty horses working at one sixth the cost. it was the first automatic machine since the clock. then james watt invented the steam engine which used steam as a force acting on the piston. watt made his living making scientific instruments for glasgow university. around 1764, he was fixing one of newcomen's engines belonging to the university, when he saw its inefficiencies, such as the loss of heat when the cylinder was cooled. he saved this heat energy by having the steam condensed in another vessel distinct but connected to the cylinder. this condenser was kept constantly cool by cold water. so the condensed steam was pumped back into the boiler and it circulated continuously, thus obviating the need for constant resupply of water. in order to avoid the necessity of using water to keep the piston air-tight, and also to prevent the air from cooling the cylinder during the descent of the piston, he used the expansion of the steam to push the piston instead of atmospheric pressure. then, in order to expand the use of the steam engine beyond that of a pump, he converted the oscillating motion of the beam into rotary motion. he formed a partnership with john roebuck, who had a two-thirds interest. but when roebuck needed money, he sold his interest to matthew boulton. boulton wanted better power that that of his watermill for his workshops that made metal buttons, watch chains, shoebuckles of engraved steel, ornamental bronzes, vases, chandeliers, tripods, silver and plated wares, and imitation gold and tortoiseshell work. in dry weather, about eight horses were needed to aid in driving the machinery. a steam pump could pump water from the bottom of the watermill to the top to be used again. he had built up this factory of five buildings and six hundred workers, with 9,000 pounds derived from his marriage to an heiress. by 1774, the partnership had built a model steam engine with rotary power whose design could be sold. the price of the engine was set as the amount of money saved on fuel costs in the first three years of its operation. this machine was a relatively economical user of energy, capable of performing almost any kind of work. about 1750, john wilkinson, the son of a farmer who also oversaw an iron furnace, substituted mineral coal for wood charcoal in the smelting and puddling of iron ore. in 1766, he made it possible to transport coal out of mines on rail wagons drawn by horses. as father of the iron industry, he made iron chairs, vats for breweries and distilleries, and iron pipes of all sizes. with his invention of the first precision boring machine, he provided watt with metal cylinders of perfectly accurate shape, which were necessary for the smooth working of watt's steam engine. in 1775 he bought a pumping steam engine from boulton and watt's company for his ironworks. it pumped three times as fast as newcomen's engine. watt's steam engine came to be used for power-loom weaving and then for all sorts of manufactures. it would put england ahead of every manufacturing country in the world. millwrights built, installed, and later designed not only steam engines but the machinery that they drove. these men were essential in setting up the first factories. they were the most imaginative and resourceful craftsmen. they knew how to use a turner's, a carpenter's and a blacksmith's tools and had supervised or done smith work, brick-laying or stone-mason's work in erecting and maintaining windmills with their many gears and bearings. there was a good deal of variety in mills, as well as in the structure and workmanship of them, some being worked by horses, some by wind, and others by water. they had some knowledge of arithmetic and practical mechanics. they could draw out a plan and calculate the speed and power of a wheel. although technically in a branch of carpentry, the millwrights learned to work with metal as well. metal was superior to wood not only because of its strength but because wood parts were irregular in motion and wore out rapidly. so iron and brass parts came to replace wood and leather parts. in 1728, j. paine got a patent for rolling iron instead of hammering it. the iron bars, being heated in a long hot arch or cavern passed between two large metal rollers, which had certain notches or furrows on their surfaces. clockmaker and quaker benjamin huntsman was struck with the difficulty of finding finely tempered steel for the springs of his watches and pendulums of his clocks. he experimented for years to find a homogeneous and flawless metal, and finally, in 1740, invented cast steel, which had high tensile strength and was much harder than ordinary steel. he did this by remelting refined high quality wrought iron bars at very high temperatures in sealed fireclay crucibles, together with small quantities of charcoal and ground glass as reagents. this distributed the carbon evenly in the metal, which hammering could not do. he approached the sheffield cutlers, who finally agreed to try his cast steel for fear of losing their business to some other manufacturers who were approaching huntsman. since huntsman had no patent, he worked at night and employed only men who would keep his secret. his steel was made at night. his factory became prosperous about 1770 and the excellence of his steel manufacture was never equaled. steel and wrought iron was scarce and expensive. around 1748, iron founder samuel walker, discovered huntsman's secret by appearing at huntsman's factory disguised as a shivering tramp who asked to warm himself by the furnace fire. he feigned sleep while watching the whole process. when he began to make cast steel, his annual output grew from 900 pounds in 1747 to 11,000 pounds in 1760 and he made a fortune. silver was plated over copper from 1751. white metal from tin and antimony was used from about 1770. the brass industry was beginning to produce brass from copper and zinc that was as good as foreign brass. the secret of plate-glass manufacture came to england in the 1770s. in 1773, a corporation was set up for the manufacture of plate glass. it could raise joint-stock because of the great risk and large expense of the undertaking. in 1775, chemist william cookworthy was given a fourteen year patent for the discovery of certain clay and stone in england from which he made england's first true porcelain, i.e. that which could sustain the most extreme degree of fire without melting, and also had grain as smooth and lustrous, and the transparency and beauty of color, equal in degree to the best chinese or dresden porcelain. the import duties on diamonds, pearls, rubies, emeralds and other precious stones and jewels was dropped to increase the business of cutting and polishing them. the world's first chocolate factory was set up in england in 1728. milk was added to chocolate. the fanmakers were incorporated in 1709. a linen company to sell cambricks [a fine white linen] and lawns [a thin and fine linen] was incorporated in 1763. a free market for fish was established in westminster to supplement the free fish market in london to prevent forestalling and monopolizing of the fish industry and to increase the number of fishermen. duties for its maintenance were paid by the fishermen. certain men were given the right to incorporate fisheries of white herring for twenty one years to improve the fisheries and give employment to the poor. they were authorized to sell subscriptions and to build ships provided the fishery employ 100,000 in such fishery. there were restrictions on taking fish from rivers during their breeding season. herring fishermen were allowed to land and dry their nets and erect tents and pickle, cure, and reload fish on uncultivated land up to 100 yards beyond the high water mark all any shore, forelands, harbors, and ports, without paying the landholder. later, a bounty of 30s. per ton was authorized to be given for vessels that were fitted out and used for white herring fishery. anyone wishing to be admitted to the levant (turkey) trading company was to be made free of such on paying 20 pounds, so that this trade might be increased. in the 1760s the first cooking school was established by mrs. elizabeth raffald, a servant. as for health, there were many occupational hazards. these included paralysis by mercury of refiners of silver and gold, paralysis by mercurial fumes of molten lead by plumbers, palsy of glaziers working with melted lead and of watch gilders, lead poisoning of painters, blinding by sawdust of sawyers, and the affects of fumes on pewterers and letter founders. particles of copper were breathed in by copper workers, whose hair and beards then turned green. braziers became deaf. hairdressers, bakers, masons, bricklayers' laborers, coal heavers, chimney sweeps, flax and feather dressers, and workers in leather warehouses suffered pulmonary diseases. chimney sweeps also had warty skin cancer from their bodies being habitually covered with soot and the lethal cancer of the scrotum. working with charcoal fires affected confectioners, chocolate makers, and sail-cloth makers. tanners, catgut makers, and tallow-candle makers became nauseous. heavy work weakened many bodies and caused hernias. bending over work for long hours caused stooped posture and hump backs. the association between dirt and disease was just beginning to be made. the principles of infection and hygiene were not well understood. bathing every couple of months was not unusual. there was some theological feeling that cleanliness betokened pride and filthiness humility. most houses had a bathtub that could be placed beside the fire in a bedroom. about 80% of the population had been getting smallpox, which blinded, maimed or disfigured many. deaths from smallpox were only occasional in the country, but constant in london, where about 13% of every generation died from it. making death commonplace, especially in the winter months when thick, dirty clothes were worn day and night, were typhus, which was carried by lice; typhoid, which was spread by flies from horse dung; tuberculosis; and influenza. dysentery and diarrhea made death commonplace especially in the summer when flies transmitted bacteria from filth to food and the water was its most foul. there was great meaning in the prayer "now i lay me down to sleep; i pray the lord my soul to keep; if i should die before i wake, i pray the lord my soul to take." thyphus spread easily in hospitals and gaols where vermin could live in the beds made of wood. colds and toothache were also common. venereal disease was not uncommon among the well-to-do in london. condoms were used to deter disease, but were still crude, coarse, uncomfortable, and unreliable. london had almost double the mortality rate of the nation. the number of baptisms in london were about 80% of its burials. about 40% of the deaths in london were among children under two, due to infantile diseases fostered by malnutrition, maternal ignorance such as giving babies adult food, ill-health, bad water, dirty food, poor hygiene, and overcrowding. many children died from diptheria, measles, scarlet fever, and smallpox. ten or twelve children with three or four surviving was a common family pattern. many well-to-do in london kept their children in the country for their better health. no matter what the ailment, physicians regularly bled patients and often gave them enemas with wooden funnels. sometimes a blister or irritant was applied to the skin to draw out the evil humors. cupping was used to provide suction to remove pressure from various parts of the body. also used were poultices, ointments, and herbal treatments, notably quinine. opium was given to deaden pain. there were about 70 drugs in use. charms, spells, astrology, and folk remedies still played a major role in medicine. a physician attended surgeries to give advice. physicians could visit apothecary shops once a year and throw away any drugs falling below an arbitrary standard of excellence. in 1703 the house of lords decided a jurisdictional contest between the college of physicians and the society of apothecaries. it permitted the apothecaries to direct the remedies as well as to prepare them, although they could only charge for the drugs they provided. the poor sought advice from apothecaries. there was progress in health. scurvy virtually disappeared as a cause of death due to the eating of more vegetables. people were cleaner when wearing cotton, which had to be washed. in 1721, free inoculations for smallpox began in england, pioneered by lady mary wortley montague, also a poet and letter writer. she led the way by having herself and her son inoculated. theologicians denounced this practice as a diabolical interference with disease sent by providence for the punishment of sin. sarah wallen mapp was a famous bone-setter. in 1727 surgeon william cheselden, whose master was specially licensed to perform the operation of removing stones in the hospital, reduced the death rate for removing stones due to hemorrhage, shock, and infection down to 17% by his invention of a lateral operation. he also published an anatomy book and treated certain kinds of blindness by forming an opening in the eye to serve as an artificial pupil. in 1736, claudius aymand conducted the first successful appendectomy. nutritional deficiency diseases were beginning to be understood. in 1753, james lind, a surgeon in the navy who noted that more men died of scurvy than in battle, published his work on his dietary controlled experiment on seamen showing that oranges, lemons, limes, green food, and onions cured scurvy. he published his methods of prevention and cure of malarial fevers and his method of disinfecting ships with the smoke of wood and gunpowder. in 1761, he discovered that steam from salt water was fresh, and proposed a method of distillation to supply ships with fresh water. in 1761 giovanni morgagni from italy opined that disease resulted from a breakdown of organs and tissues that was viewable on autopsy. he wrote an extensive book showing the anatomy of diseases, e.g. affections of pericardium and aorta, (e.g. aneurysm), valve diseases, ulceration, rupture, dilation, and hypertrophy. he associated clinical observation with anatomy of disease. for example, pain on the left upper chest, numbness of the left arm, and difficulty breathing occurring together with exertion were associated with dilation of the aorta and hardening of arteries, which caused delay of blood in the aorta, in the heart, and in the lung vessels. bernoulli showed that the living human body constantly changes so that all its particles are renewed in a certain number of years. stephen hale described the first quantitative estimate of blood pressure and fundamental characteristics of blood circulation. in 1728, frenchman dr. pierre fauchard, the father of dentistry, recommended rubbing one's teeth and gums with a piece of sponge. since three out of four babies died shortly after birth, beds in hospitals for pregnant women were established starting in 1739. the next year physicians began to replace midwives. a hospital was established for abandoned foundling children in 1739 so they wouldn't die, as they usually did, in the care of parishes or workhouses or be exposed in the streets or left on door steps of the wealthy. it was besieged by women with babies in their arms. in 1762 a statute made the principles of the foundling hospital obligatory for all london parish children under six; they were to be sent to nurses outside london who were to be paid at least 2s. a week by the parish. in 1766, this was extended to all parishes, and nurses who cared for a child well for a year was given a reward of at least 10s. also, parish children were not allowed to be apprenticed for more than seven years or until age 21 and an apprentice fee of at least 4 pounds, 2s. was to be paid to the master or mistress by the parish. after 1740, there was a steady growth of population due to improved midwifery. william smellie taught scientific midwifery in london from 1741 and wrote a "treatise on midwifery" in 1752, which had a clear explanation of the mechanism of labor. at this time there were several maternity hospitals. forceps existed for difficult deliveries. in 1750, dr. cadogan wrote his book: "an essay on the nursing and management of children, which made a great improvement in the care of young children. for instance, it recommended loose clothing, no tight swaddling clothes, and a simple diet. swaddling clothes were used to retain a baby's evacuations but produced discomfort and serious skin conditions. a hospital was founded for venereal diseases in 1746, another as an asylum for the penitent and orphaned girls who might otherwise be inclined to prostitution, and yet another for prostitutes in 1758. coitus interruptus was widely used for birth control. there were also clandestine abortions and intentional neglect of newborns. melancholy was widespread. suicides were frequent and drugs were sold for this purpose. in 1725, the mentally ill were classified as curable or incurable. there were many private asylums. a lunatic who was furiously mad and dangerous was required to be safely locked up or chained in his place of settlement. there were frequent and dangerous abuses in madhouses, so in 1774, no one was to keep or confine more than one lunatic without a license granted by the royal college of physicians or else forfeit 500 pounds. a justice of the peace and a physician inspected all madhouses to observe conditions and care of patients there. if refused admittance, the license was forfeited. in 1712 was the last time a monarch touched a person to cure him of a malady such as scrofula. in 1743 surgery students began to dissect corpses with their own hands to better learn anatomy. in 1744 the company of surgeons was separated out of the company of barber-surgeons. the barbers were proscribed from performing surgery and had to have a separate corporation from the surgeons because of the ignorance and unskillfulness of barbers healing wounds, blows, and hurts e.g. by blood letting and drawing of teeth. there was a surgeon's hall, officers chosen by the surgeons, and bylaws. the surgeons were required to examine candidates for the position of surgeon in the king's army and navy. they were exempted from parish, ward, and leet offices, and juries. in 1752, a statute provided that the corpses of murderers were to be sent to the surgeon's hall to be anatomized, for the purpose of deterring murders. the penalty for rescuing the corpse of a murderer was to suffer death. the first dispensary for the poor was established in 1769 to give free medicine and treatment to the infant poor, and then to the infants of the industrious poor. the progress of science was seen to threaten the authority of the church. there was a general belief in god, but not much attention to jesus. feared to come were free thought, rationalism, and atheism. there was still a big gap between local parsons and bishops, who were educated, well-off, and related to the aristocracy. on the whole, preachers talked about morality and christian belief. they stressed good works and benevolence. but many protestant clergy were more concerned with their own livings than with their parishioners. they were indolent and did not set a good example of moral living. >from 1715, freemasonry spread and swiftly provided a spiritual haven for those who believed in god and desired ritual and mysticism. about 1744, john wesley, the son of an anglican clergyman, became a religious leader for mining and industrial laborers, who were crowded into the slums of industrializing cities, and largely ignored by the church of england. he had been led to this by a profound religious experience. he led an evangelical revival with a promise of individual salvation. he lead an aesthetic life, eating bread, and sleeping on boards. the person to be saved from the horrors of eternal damnation in hell was to discipline himself to regular prayer, self-criticism, and hard work and to forsake worldly pleasures such as drinking, overeating, and even frivolous talk. this methodical regularity of living led to the movement being called methodist. wesley believed in witchcraft and magic. he opined that bodily diseases and insanity could be caused by devils and that some dreams are caused by occult powers of evil. the methodists engaged increasingly in philanthropic activities. they gave to the poor, and visited the sick and the imprisoned. wesley preached in the open air where all who wanted to attend could attend and also wear whatever clothes they had. large crowds of poor people gathered for these meetings. although crowds of poor people were generally feared because of their mob potential, these meetings were stormed as were quaker meetings, with shouts of "the church in danger". the methodists' homes were invaded and their belongings destroyed or taken or their persons beaten with tacit permission of authorities. some justices of the peace drafted preachers into the army or navy as vagabonds. eventually, however, the methodist revival imbued energy and piety into the lethargic clergy of the established church. a new moral enthusiasm and philanthropic energy grabbed the nation. prisons were reformed, penal laws made more wise, slave trade abolished, and popular education given momentum. in the established church, charity gained precedence over theology and comfort over self-examination and guilt. evangelist george whitfield preached calvinism and it split off from methodism. then calvinism went into full decline. presbyterianism collapsed into unitarianism and a general tendency towards deism developed. church sanctuary was abolished for those accused of civil offenses. there was much travel by scheduled coaches, which usually carried several passengers and were drawn by four horses. regular service of public vehicles to and from london went four miles an hour; it took two days to go from london to oxford. it was not unusual for a coach to bog down or overturn. sometimes it had to detour around an impassable stretch of road or borrow a couple of oxen from a nearby farm to get out of a quagmire. men and horses drowned in some of the potholes. robbery was endemic and some of the roads were so unsafe from highwaymen that bands of armed horsemen were hired to accompany the coaches. it was not unusual to come across gibbets for hanging at crossroads. in london inns at coach stops, there were casual workers who were associated with gangs of thieves specializing in passengers' goods. these workers would inform their associate thieves of specific goods that had been loaded onto certain coaches, which were then robbed selectively. traveling merchants preferred packhorses to carts because they could cross overland or through watercourses more easily. these pack horses traveled in regular caravans in single file. the leader had a bell around his neck to warn, from a distance, riders or carts coming in the opposite direction. carts traveled about two miles an hour. in 1711 the trustee system superseded administration by the justices of the peace of the turnpike system, including tolls and toll booths. the toll booths were frequently attacked by riotous mobs. so anyone pulling down or destroying turnpike gates at which tolls were to be paid was to go to prison or be put to hard labor in a house of correction for three months without bail. he was also to be whipped in the market place between 11:00 and 2:00. if he offended a second time, he was to be transported for seven years. later the penalty of prison up to three years was added as an alternative. the hundred was to pay the damages up to 20 pounds. the penalty for threatening the toll collector or forcibly passing through was 5 pounds for the first offense, and 10 pounds for the second offense with imprisonment for one year for those who couldn't pay. by 1750, about 60 miles could be made in a day. the turnpike trusts took over most of london's major highways during the 1700s. there was no travel on sundays until 1750. in 1745, shocked by the difficulty caused by bad roads in concentrating the royal army to stop the scottish invasion, the king began systematically to improve all the roads. there was much road and highway widening and repair, and also river bank and pier repair, going on all over the country. marsh lands were drained. harbors were deepened. there were numerous statutes trying to adjust the needs of travel with the condition of the roads. for instance, there had to be a pole between wheel horses or double shafts. carriages, wagons, or carts drawn by more horses, oxen, or animals, or with very heavy loads, or with wheels bound with iron tires were observed to cause more damage, so they were restricted or had to pay higher tolls. then broad and smooth iron tires were observed to not cause the amount of damage as did narrow or irregular iron tires and their use was encouraged. from 1741, weighing machines were kept at toll gates. by 1766, turnpike roads had to be at least 30 feet wide, and hedges and fences thereon had to be taken down by their owners. cartways to markets had to be at least 20 feet wide, and horseways 3 (later 8) feet wide. there were ditches, drains, and gutters to carry off water. names and abodes of owners were to be put on carriages, wagons, and carts or forfeit 2-5 pounds, except for carriages or coaches of a nobleman or gentleman for his private use or those drawn by only one horse or two oxen, or those with wide wheels and a light load. there were town name signs, direction posts, and milestones. in 1773, the surveyors and the commissioners of turnpikes were given authority to requisition local men, carts and draught animals for compulsory labor, or money instead, in maintaining the roads and making new ditches and drains. they could take any local sand, gravel, chalk, or stone from waste or common land or, if not needed by and satisfaction was made to the owner, from enclosed land. the surveyor was to be chosen locally for a year and could be given an allowance. new roads required the consent of the landowners and a negotiated price. a driver of a carriage, wagon, or cart on the public highway who by negligence or misbehavior caused any hurt or damage to a person or any other carriage or hindered free passage of any other carriage was to forfeit up to 20s. anyone leaving an empty cart or other obstruction on a public highway was to forfeit up to 20s. any cart, wagon, or carriage driven without a person on foot or on horseback leading it had a forfeiture up to 20s. any driver of an empty cart, wagon, or carriage who refused or neglected to make way for any coach or loaded cart, wagon, or carriage was to forfeit up to 20. any offender could be apprehended without warrant by anyone who saw his offense, and who was then to deliver him to a constable or other peace officer. by 1719, the mail service was well-regulated. letter rates within 80 miles of london were 3d. per piece of paper, then 12d. per ounce. within 60 miles of new york city in america there were 4d. per piece of paper, then 1s.4d. per ounce. letters were still carried by post horses. from london to new york, they were 1s. per piece of paper for the first three pieces, then 4s. per ounce. in 1765, this rate was extended to all colonial ports. in 1754, canals began to be constructed linking the main rivers. the barges were hauled by horses or men from the land near the river's edge. now goods of many inland towns cheapened and reached a national instead of just a local market. in 1761 an almost illiterate man called james brindley cut the first real canal at worsley for the duke of bridgewater, who owned the coal deposits there. he kept the line of the canal at one level to avoid having to make locks. it crossed one river as a forty foot high aqueduct. he refused to use the beds of small rivers, whose sluggish flow gave no adequate security against silting. coal at the destination point of manchester fell to half its former price. after wedgwood headed a campaign to persuade parliament to construct a certain canal, he bought adjacent land on which he built a great factory. in 1713, the maximum interest rate that could be charged was reduced to 5% for the advancement of trade and improvement of lands because that rate was the norm in foreign lands. thus the maximum interest rate fell from 10 to 8 to 6 and then to 5%. when issac newton was master of the mint, he noted that too restricted a currency caused a high interest rate to prevail, which was bad for commerce and the plans to set the poor to work, but that too large a quantity of money in circulation caused interest rates to fall, which encouraged luxury imports and the export of bullion. the bank of england provided a safer deposit and lower interest than goldsmiths or scriveners. it also issued notes for 10 and 15 (since 1759), and 20 pounds. outside retail trade and wages payments, business was conducted on a credit basis with a paper promise to pay at some future date. check use was still formal and rare. tradesmen typically authorized their apprentices to "write off or draw" from their accounts, bringing their bank books. depositors authorized other people such as certain servants, relatives, cashiers, or company secretaries to make use of their accounts. after 1721, the bank dividend was about 6% a year. promissory notes are assignable and endorsable and the holder may recover against the signer or any endorser as is the case with bills of exchange. in 1775, no more promissory or other notes, bills of exchange, draughts, or undertakings in writing and being negotiable or transferable may be made for under 20s., because it was hard for the poorer sort of manufacturer, artificer, laborer and others to use them without being subject to great extortion and abuse. (cash was to be used instead.) by 1711, government finances had become so chaotic that the chancellor of the exchequer sought to re-establish public credit by means of a chartered commercial company, the shares of which were offered in substitution for government stock. this south sea company was established in 1711 with a monopoly to trade in south america. the prospects of huge profits sent the share prices soaring. there was also an increase in the money supply. these factors led to a speculation bubble in 1720 in this stock. also, many stock-jobbers promoted companies of every description, such as one to extract gold from seawater. there was an insurance boom with about seventy insurance companies in existence, many virtually gambling in life contingencies. there was speculation in insurance for all types of occurrences, such as housebreaking, highway robbery, death by gin-drinking, and horses becoming disabled. the total capital invested in all these enterprises rose to over five times the cash resources of all europe. when the bubble burst, 100 pound south sea stock had gone up to 1050 pounds and back down again to 120. since the government had in effect bought this stock at a low price and paid off its debt with this stock at a high price, this bubble relieved the government of much of its massive debt. it also redistributed wealth. after the bubble burst, investors took refuge in investing in 3-4% government fixed-interest securities. a result of this bubble burst was the chartering of two corporations for marine insurance and prohibition of such by any partnership or firm. private persons could continue to write policies, and they chose lloyd's coffeehouse as their headquarters; it came to dominate the world of marine insurance after the two chartered companies came to concentrate on fire and life insurance. lloyd's list became the foundation for a new newspaper. there were specialty boxes at lloyd's such as on america or the baltic. many ships were reported captured by enemies or pirates, but underwriting insurance was a lucrative business for many. in 1717 the gold guinea was assigned a value of 21s. in 1774, the gold standard was introduced. in 1774, clipped and deficient gold coin was called in to be exchanged for new coin. local taxes were collected for the church, the poor, county courts of justice, borough administration, and highways. national taxes included the income, customs, and excise taxes. when the government tried to levy excise taxes on wine, tobacco, and then on cider, there was a public protest with mobs demonstrating against the power given to excise inspectors to search in people's homes. these excise taxes were no longer levied. duties were placed on items for encouraging industries within the country and to pay the expenses of government. there were more and higher duties to pay for war. at various times there were duties on hides, skins, seal skins, gilt and silver wire, malt, mum (strong beer made from malted wheat), cider, perry, spices, tea, coffee, cocoa nuts, chocolate, cocoa paste, snuff, chinaware, drugs, calicoes, herrings, apples, oysters, raw italian and chinese silk, gum arabic, gum senega, tallow, hogs-lard, grease, beaver skins and wool, imported brandy, raisins, coals and coal dust, coaches for one's own use or for hire (except licensed hackney coaches); silver plate owned by persons, corporations, and bodies politic; leases, bonds, and other deeds; licenses for retailing wine, beer, and ale; 5% of salaries, fees, and perquisites from office and employments including royal pensions and gratuities over 100 pounds. when the price of wheat was high, as in 1765, when it was 6s. per bushel, wheat products could not be exported. (at other times, they could not be imported.) duties on imported wheat, barley, rye, oats, beans, rice, indian corn were also dropped. the prohibition of importing salted beef, pork, bacon, and butter was dropped. in 1770, no live cattle, pigs, mutton, pork, beef, either fresh or salted could be exported or forfeit 50 pounds for every such animal or 5s. per pound of such meat. in 1773, peas, beans, bacon, hams, and cheese could be imported duty free, and in 1775 labrador codfish. in 1775, raw goat skins could be imported duty-free to improve the domestic manufacture of red, green, and blue leather. in 1773, there were given costs above which various commodities could not be exported: wheat at 44s. per quarter, rye, peas, or beans at 28s., barley and beer at 22s., oats at 14s. or else forfeit the goods, 20s. per bushel and the ship or boat in which laden. (there are 8 bushes in a quarter.) a window tax replaced the hearth tax. these duties were 2s. on dwelling houses, increased by 6d. per window for houses with 10-14 windows, and increased by 9d. per window for houses with 15-19 windows, and increased by 1s. per window for houses with 20 or more windows, per year to be paid by the occupant. these were increased three more times, until the dwelling house duty was 3s. and the duty for 25 or more windows was 2s. another duty for war was that on imported starch, certain imported clothes, cards, dice, soap, vellum, parchment, and paper made in the realm (4d.-1s.6d. per ream depending on quality) or imported (1-16s. per ream). for pamphlets and newspapers made in the realm there was a duty of 2d. per sheet and 12d. for every advertisement. when the duty was paid, the paper was stamped. the penalty for nonpayment was 10 pounds for sellers and 5 pounds for those writing or printing on the paper. later, there was a penalty of imprisonment in a house of correction up to three months for sellers or hawkers of pamphlets or newspapers, and the apprehender received a reward of 20s. a parson marrying a couple without publishing banns or license could forfeit 100 pounds. not paying duties was punishable by various forfeitures of money. officers for duties could search warehouses on suspicion of concealment of coffee, tea, chocolate, or cocoa beans with an intent to avoid duties after making an oath before a duty commissioner or justice of the peace setting forth the grounds of such suspicion. a special warrant could be issued authorizing the officer to seize such goods. wars were funded not only by some duties, but by lotteries and short-term funding purchased at 5% yearly interest from the bank of england and by long-term funding by the sale of annuities. county militias could be raised and called out to march together in order to be better prepared to suppress insurrections or invasions. their horsemen were to be provided with broad sword, a case of pistols with 12 inch barrels, a carabine with belt and bucket, a saddle, and a bit and bridle. each foot soldier was to be provided with a bayonet, a cartouch-box, and a sword. in the militia act of 1757, there were quotas for each parish, to be chosen by lot from lists of men 18-50 years old. after militia service for three years, one could not be called again until by rotation, and, if married, he was allowed to practice any trade in which he was able in any town or place. while he was in the militia, his parish had to pay an allowance to his family, if distressed, the usual price of an agricultural laborer, according to the number and ages of the children. quakers could provide a substitute or pay money to defray expenses of a substitute for three years. exempt were peers, commissioned officers in royal army or royal castle, other military personnel, members of either university, clergymen, teachers of any separate congregation, constables and peace officers, and watermen of the thames river. this militia act was due to an invasion scare in 1756 because great britain then had no allies on the continent. the old strategy of maintaining a small army of 17,000 men and relying on volunteers had really depended on england's allies to tie down france's land forces. the militia act of 1757 was designed to reassure squires they would not be used as adjuncts to the army. only those with much property would be officers. enlistees could still carry on their trades and jobs. costs were to be from general taxation rather than by locality. but it was almost impossible to get officers and there were many riots when parish authorities tried to draw up lists of those liable to serve. in 1759 the navy prevented french invasion. able-bodied men without a calling, employment, or visible means of maintenance or livelihood may be searched for and conscripted into the army. volunteers who enlist were to be paid 40s. and were not to be taken out of her majesty's service by any process other than for some criminal matter. king george ii was the last king to lead his troops into battle. later, parishes were given 20s. for every soldier they summoned. also, persons who had a vote for member of parliament were exempted. whipping was the usual punishment for offenses. a soldier who deserted or joined in any mutiny or sedition in the royal army within the realm was to suffer death or any other punishment determined by court martial. in 1760, a soldier (later, or a marine) who slept at his post, left his post before being relieved, communicated with any rebel or enemy, struck or disobeyed any superior officer could suffer death, including those soldiers in america. during war, chief officers of towns quartered and billeted royal army officers and soldiers in inns, livery stables, alehouses, and victualing houses for 4d. a day, but not in any private house without consent of the owner. from 1714 to 1739, the army regiments were split up and scattered among the ale-houses of small towns for maintenance; this was to disperse the soldiers. it was easier to count them, thereby keeping a check on their number, which might be exaggerated if they were in large groups in barracks. the towns protested having to maintain soldiers and town magistrates imposed severe penalties for small offenses by soldiers. their drunkenness and violence were not tolerated as it was for ordinary people. their officers not being with them, the soldiers retaliated with troublesomeness. as of 1763 english troops could be quartered in unoccupied houses or barns and supplied with necessities such as bedding, firewood, candles, vinegar, salt, cooking utensils, and beer or cider. the royal hospital gave pensions to maimed and worn out soldiers treated there. sailors had more status than soldiers because they had regular work as seamen in times of peace and they did not remind the people of the idea of a standing army, which they had hated especially since cromwell. justices of the peace, mayors, and other officers could bind boys as apprentices to sea service if they were at least ten and their parents were chargeable to the parish or begged for alms. this indenture to the masters or owners of ships lasted until the boy reached 21. the boy's parish paid 50s. for clothing and bedding for such sea service. no such apprentice could be impressed into the navy until at least 18 years of age. master and owners of ships that carried 30-50 tuns had to take one such apprentice and one more boy for the next 50 tuns, and one more boy for every 100 tuns over 100 tuns, or else forfeit 10 pounds to the boy's parish. boys voluntarily binding themselves to such sea service were exempt from impressment for the next three years. this was to increase the number of able and experience mariners and seamen for the navy and for the trade and commerce of the nation. no masters or commanders of merchant ships were to proceed on a voyage beyond the seas without first agreeing in writing on wages with the seamen, except for apprentices. such agreement had to be signed by the seamen. offenders were to forfeit 5 pounds per seaman, which sum went to the use of greenwich hospital. any seaman leaving the ship before being discharged in writing was to forfeit one month's pay because too many left the ship before it was unladen. there were some ships of 2000 tons. the steering wheel had been introduced because a sudden heavy sea could wrest a tiller from the hands of the helmsman. triangular head-sails with jib boom and stay-sails on stays between masts were in use so that ships could sail closer into the wind. the length of ships was still determined by the same length of trees that could be grown. sailing ships were still vulnerable to a lee shore. latitude was easy to determine using the reflecting octant invented by john hadley in 1731, and a sextant invented in 1757, with mirrors and a small telescope to measure the angle between a celestial body such as the sun or north star and the horizon. but longitude could not be determined with any degree of accuracy. one method relied on accurate predictions of the future position of the moon as observed from a fixed reference point, such as greenwich. by precisely observing the local time of the moon's occultation of a known star at a particular place, and looking up in a table the predicted time of the event at greenwich, one could approximate the time difference of the place from greenwich. there were so many shipwrecks on this account that the government offered a reward to anyone who found a way to measure longitude accurately. in 1763 carpenter and clockmaker john harrison made the chronometer to do this with an accuracy of 2 1/2 seconds per month, and received 5,000 pounds. he was promised 10,000 pounds to explain the principle of his timekeeper and build three more. the chronometer kept time with extreme accuracy and was mounted to remove the effect of the ship's motion. to find a ship's position, a navigator noted the time and measured the positions of certain stars. he compared these positions with tables that showed the stars' positions at greenwich mean time, and then calculated the ship's position. officer positions were no longer bought, but were subject to examination for a minimum of knowledge, especially in navigation. in 1729 the naval academy was established. boys entered at age 13 to 16 and spent two or three years there. only about 15% of the crew of navy ships were volunteers. many were gaolbirds, having chosen the navy over more gaol time for debt. press gangs seized men in the port towns and from ships coming into harbor. from 10% to 20% of the crew were foreigners, many of these pressed men. about 1756, the marine society was founded for training and placing poor boys in work in naval and merchant ships. this not only supplied men and boys for the navy, but saved boys from a life of vagrancy and crime. these boys usually became reliable and obedient sailors. the life of a sailor was a hard one, requiring much strength. sailors did not know how to swim, so falling overboard usually meant death. flogging was the usual punishment in the navy, even for small offenses. the amount of flogging due for each offense rose over time. if flogging were fatal, there would be an inquiry and occasionally punishment. a sailor's meals were usually hard bread invested with weevils and maggots, dried or salted meat or fish, and small quantities of oatmeal, butter, and cheese. many sailors had scurvy or other deficiency diseases. experiments with lime and lemon juice as remedies for scurvy were made around 1764, but were not used in the navy until about 1800. many more sailors died from these diseases than from battle. rum and water was a daily ration introduced in 1745. the ordinary sailor was paid about one pound a month, a rate established in 1650s and now out of date. this was not in cash, but in a ticket which entitled him to payment in full if he presented it at the pay office in london, but was subject to swinging deductions if he tried to cash it in another port. prize money from conquered ships was substantial. to encourage seamen to enter the navy, parliament provided that it be divided among flag officers, commanders, other officers, seamen, marines, and soldiers on board every ship of war, including private ships commissioned by the admiral, as directed by the king, or as agreed with the owner of a private ship. it included an enemy's ships, and goods and arms on the ships or in fortresses on the land. there was also bounty money for enemy ships taken or destroyed. for retaking or salvaging english goods taken by the enemy, 1/8th their value was to be paid. privateers colluding with others to fraudulently take their merchant ships by were to forfeit their ships, with 1/3rd going to the person who made the discovery and prosecuted. later, any able seaman volunteering for the navy was to receive 5 pounds bounty. any seaman volunteering for the navy was to receive a bounty of 3 pounds. if a navy seaman was killed or drowned, his widow was to receive a year's pay as bounty. no seaman in a merchant ship was to receive more than 35s. per month because of the present war. still later, anyone who has run goods or avoided customs was excused and indemnified if he enlisted in the navy as a common sailor for three years. those under 18 or over 55 were made exempt from impressment into the king's service. the time of service was limited to five years if the serviceman so demanded. worn out and decrepit seamen no longer being treated at the royal hospital for seamen at greenwich are to receive a pension as determined by the hospital. in war, the navy favored blockading tactics over attack by fireships, which grew obsolete. in peace, when not used in convoys to remote lands, many ships of war were used as cruisers to guard the coast, to trade, and to accompany merchant ships going out and returning home. about 1755, marine forces of the navy were raised and quartered on shore. no war ship may carry goods except gold, silver, and jewels and except the goods of a ship in danger of shipwreck or already shipwrecked. the king was authorized to prohibit the export of gunpowder, saltpeter, ammunition, and arms. when a ship had been forced on shore or stranded on the coast, it had been the practice for people to plunder it and to demand high payment for salvaging its goods. so a statute required that salvage only be done by sheriff, mayors, and other officials. a person who defaced the marks on goods or hindered the saving of the ship had to pay double satisfaction to the person aggrieved and spend 12 months at hard labor in a house of correction. if a person unduly carried off goods, he forfeited treble damages. if he made a hole in the ship or stole the pump from the ship, he was guilty of felony without benefit of clergy. the owner of the island of skerries was allowed to erect a lighthouse and charge passing ships other than navy ships 1d. per tun. only pilots examined and admitted into the society of pilots and, if no such pilot is readily available, a ship's own owner, master, or mate was to pilot ships up the thames river, or else forfeit 10 pounds for the first offense, 20 pounds for the second, and 40 pounds thereafter. any pilot losing a ship was no longer to be a pilot. there must be at least 120 qualified pilots. the prices of piloting were 3 pounds 10s. for ships drawing 7 feet of water, and 10s. more for each additional foot drawn up to 8 pounds 10s. for ships drawing 17 feet of water. to preserve navigation, ships are not to throw any ballast, filth, rubbish, gravel, earth, stone, or filth into rivers or ports where the tide or water flows or runs or else forfeit 50s.5 pounds. ships on the thames river could take as ballast to stabilize a ship without cargo: dung, compost, earth, or soil from laystalls in london. there was a toll on ships entering the port of london to pay for repairs to its walls. many persons insuring ships for large premiums became bankrupt, thus ruining or impoverishing many merchants and traders. so the king was authorized to grant charters to two distinct corporations for the insurance of ships, goods, and merchandise or going to sea or for lending money upon bottomry. each corporation had to pay 300,000 pounds to the exchequer and to have sufficient ready money to pay for losses insured by them. they were to raise capital stock and could make calls of money from their members in proportion to their stocks for any further money required. any owner, master, or mariner who cast away, burned, or otherwise destroyed a ship to the prejudice of underwriters of policies of insurance or of any merchants whose goods have been loaded on the ship was to suffer death. the owners of ships are not liable for losses by reason of theft without their knowledge by the master or mariners of goods beyond the value of the ship. this is to prevent the discouragement of owning ships. the insurance of merchant ships must give salvage rights [rights to take what may be left of the ships insured after paying the insurance on them] to the insurer. a lender on bottomry shall have benefit of salvage. no insurance may be for a greater amount than the value of one's interest in the ship or in the goods on board. no waterman carrying passengers or goods for hire e.g. by wherryboat, tiltboat, or rowbarge, on the thames river may take an apprentice unless he is a housekeeper or has some known place of abode where he may keep such apprentice or else forfeit ten pounds, and if he can't pay, do hard labor at the house of correction for 14-30 days. also he may not keep the apprentice bound to him. no apprentice may be entrusted with a vessel until he is 16 if a waterman's son and 17 if is he the son of a landman, and he has had at least two years' experience. none but freemen (i.e. one having served an apprenticeship of seven years) may row or work any vessel for hire or be subject to the same punishment. this is to avoid the mischiefs which happen by entrusting apprentices too weak, unable, and unskillful in the work, with the care of goods and lives of passengers. later amendment required that apprentices be age 14 to 20 and that there be no more than 40 passengers, with the penalty of transportation if there were over 40 and one drowned. no boat on the thames river may be used for selling liquors, tobacco, fruit, or gingerbread to seamen and laborers because such has led to theft of ropes, cables, goods, and stores from the ships. excepted are boats registered at the guilds of trinity and of st. clement, but they must show their owner's name and can only operate in daylight hours. the penalty is forfeiture of the boat. all ships coming from places infected with the plague shall be quarantined and any person leaving a quarantined ship shall return and later forfeit 20 pounds, of which 1/3 may go to the informer, the rest to the poor. this was later raised to 200 pounds and six months in prison, and if the person escaped, he was to suffer death. also later, a master of a ship coming from infected places or having infected people on board was guilty of felony and was to forfeit 200 pounds. if he did not take his vessel to the quarantine area on notice, he was to forfeit a further 200 pounds (later 500 pounds) and the ship, which could then be burned. the king was authorized to prohibit commerce for one year with any country infected by the plague and to forbid any persons of the realm from going to an infected place. by 1714, there was a clear distinction between a king's private income and the crown's public revenue. from 1714, the king's treasurer as a matter of routine submitted annual budgets to parliament. he was usually also the leader of the house of commons and the chancellor of the exchequer. proclamations by the crown were more restricted to colonial and foreign affairs, to executive orders, and to instructions to officials. the high offices included the chancellor, keeper, president of the council, privy seal, treasurer, and two secretaries of state, who were in charge of all foreign and domestic matters other than taxation, one for the north and one for the south. (wolsey had been the last chancellor to rule england; thereafter the chancellor had become more of a judge and less of a statesman.) other offices were: paymaster general, secretary of war, and treasurer of the navy. starting with the monarch, government positions were given by patronage to friends and relatives, or if none, to the highest bidder. these offices were usually milked for fees and employed deputies, clerks, and scribes who worked for long hours at very modest wages. most people believed that the offices of power and influence in the realm belonged to the nobility and gentry as indubitably as the throne belonged to the king. assaulting, wounding, striking, or trying to kill a member of the privy council engaged in his duties was punishable by death without benefit of clergy. civil and military commissions, patents, grants of any office or employment, including justice of assize, justice of the peace, court writs, court proceedings continued in force for six months after a king's death, unless superceded in the meantime. the king's ministers were those members of his privy council who carried out the work of government. by distributing patronage, the ministers acquired the influence to become leading members of the house of commons or the house of lords. they made policy, secured the king's consent, and then put through the necessary legislation. the king was to act only through his ministers and all public business was to be formally done in privy council with all its decisions signed by its members. the king gradually lost power. the last royal veto of a parliamentary bill was in 1708. by 1714, the privy council ceased making decisions of policy. instead a cabinet not identified with any particular party was chosen by the queen, who presided over their meetings, which were held every sunday. it dealt with parliament. in 1720, the number of peers in the house of lords was fixed, so that the crown could create no more. about 1720, robert walpole, son of a country squire, who came to be first minister of the crown and the leader of the whigs, organized the cabinet so that it was of one view. he led it for twenty years and thus became the first prime minister. he was brilliant at finance and lessened taxation. he restored trust in the government after the south sea bubble scandal. he was successful in preserving the peace with other nations and providing stability in england that led to prosperity. the whigs opposed a standing army and over-reaching influence of the crown. they espoused the liberty of individual subjects. their slogan was "liberty and property". they generally favored foreign wars. members of the parliament felt responsible for the good of the whole country instead of accounting to their electors, but selfinterest also played a part. leading commercial magnates of the realm sought to be members of parliament or governors of the bank of england so they could take up government loans at advantageous rates, snap up contracts to supply government departments at exorbitant prices, and play an important part in deciding what duties should be charged on what goods. about 5% of the population could vote. voting was open, rather than by secret ballot. seats in parliament could normally be bought either by coming to an arrangement with some landowner who had the right to nominate to a closed seat or by buying enough votes in constituencies where the electorate was larger and the contest more open. factory owners and leading landowners sat together on committees drawing up plans for public works such as canal building, obtained the necessary permits from public authorities and organized the whole enterprise. in 1714, parliament was allowed to last for seven years unless sooner dissolved by the king because of the expense and tumult of elections, which frequently occasioned riots, and sometimes battles in which men were killed and prisoners taken on both sides. politics had become a career. members of parliament could not be arrested while parliament was in session. as of 1710, electees to the commons had to have 600 pounds annual income for knights or 300 pounds annually for burgesses. this did not include the eldest son or heir apparent of any peer or lord of parliament or any person with the above qualifications. the universities were exempted. as of 1729, a person electing a member of the commons had to swear or affirm that he had not received any money, office, employment, or reward or promise of such for his vote. if he swore falsely, it was perjury and he was to forfeit 500 pounds and his right to vote. later, voters for member of parliament had to have residence for a year. still later, voters were required to have been freemen of the city or town for one year or else forfeit 100 pounds, except if entitled to freedom by birth, marriage, or servitude according to the custom of such city or town. voters were still required to have a freehold of land of 40s. a year income, but holders of estates by copy of court roll were specifically precluded from voting or else forfeit 50 pounds. in 1724, since unauthorized persons have intruded into assemblies of citizens of london and presumed to vote therein, the presiding officer shall appoint clerks to take the poll and oath required for elections for parliament, mayor, sheriffs, chamberlains, bridgemasters, and auditors of chamberlains. the oath is that one is a freeman of london, a liveryman of a certain named company, has been so for 12 months, and names his place of abode. the oath for alderman or common council elections is that the voter is a freeman of london and a householder in a named ward paying scot of at least a total of 30s. and bearing lot. a list of the voters and of persons disallowed is to be given to candidates by the presiding officer. soldiers may not be quartered within 20 miles of a place of election so that the election is kept free. voters in public corporations must have held their stock for six months before voting them to discourage splitting stock and making temporary conveyances thereof to give certain people more of a vote, e.g. in declaring dividends and choosing directors. ambassadors were made immune from arrest, prosecution and imprisonment to preserve their rights and privileges and protection by the queen and the law of nations. the supporters of the bill of rights society was founded and paid agents to give speeches throughout the country and used the press for its goals. james burgh demanded universal suffrage in his 1773 book: "political disquisitions". in 1707 there was union with scotland, in which their parliaments were combined into one. the country was known as great britain. the last scottish rebellion resulted in attainder of its leaders for levying war against the king. in 1746, they were given the chance to surrender by a certain date, and receive a pardon on condition of transportation. in 1747, anyone impeached by the commons of high treason whereby there may be corruption of the blood or for misprison of such treason may make his defense by up to two counsel learned in the law, who shall be assigned for that purpose on the application of the person impeached. in 1748, counsel may interrogate witnesses in such cases where testimony of witnesses are not reduced to writing. there was a steady flow of emigrants to the american colonies, including transported convicts and indentured servants. delaware became a colony in 1703. in 1729, the king bought carolina from its seven proprietors for 2,500 pounds apiece. person having estates, rights, titles, or interest there, except officers, were allowed by parliament to sue the king with the court establishing the value to be paid, but no more than at a rate of 2,500 pounds per 1/8 of the property. georgia was chartered in 1733 on request of james oglethorpe, who became its first governor, as a refuge for debtors and the poor and needy. it established the episcopal church by law. in 1730 carolina and 1735 georgia were allowed to sell rice directly to certain lands instead of to england only. later, sugar was allowed to be carried directly from america to european ports in english ships without first touching some english port. foreigners who had lived in the american colonies for seven years, and later foreigners who served two years in the royal army in america as soldiers or as engineers, were allowed to become citizens of great britain on taking oaths of loyalty and protestantism. this included quakers and jews. the jews could omit the phrase "upon the true faith of a christian." in 1756, indentured servants in america were allowed to volunteer as soldiers in the british army serving in america. if his proprietor objected, the servant was to be restored to him or reasonable compensation given in proportion to the original purchase price of his service and the time of his service remaining. there was much competition among countries for colonies. quebec and then montreal in 1760 in canada were captured from the french. about 1768 james cook discovered new zealand and australia; his maps greatly helped future voyages. the english east india company took over india as its mogul empire broke up. manufacturing in the american colonies that would compete with british industry was suppressed by great britain. there were increasing duties on goods imported into the colonies and restrictions on exports. in 1763, parliament imposed duties on foreign imports going to america via britain: to wit, sugar, indigo, coffee, certain wines, wrought silks, calicoes, and cambrick linen. foreign vessels at anchor or hovering on colonial coasts and not departing within 48 hours were made liable to be forfeited with their goods. uncustomed goods into or prohibited goods into or out of the colonies seized by customs officials on the ship or on land and any boats and cattle used to transport them occasioned a forfeiture of treble value, of which 1/3 went to the king, 1/3 went to the colonial governor, and 1/3 went to the suer. any officer making a collusive seizure or other fraud was to forfeit 500 pounds and his office. in 1765, there was imposed a duty on papers in the colonies to defray expenses of their defense by the british military. the duty on every skin, piece of vellum [calf skin] or parchment, and sheet of paper used in any law court was 3d.2 pounds. there were also duties on counselor or solicitor appointments of 10 pounds per sheet. duties extended to licenses for retailing spirituous liquors and wines, bonds for payment of money, warrants for surveying or setting out of any lands, grants and deeds of land, appointments to certain civil public offices, indentures, leases, conveyances, bills of sale, grants and certificates under public seal, insurance policies, mortgages, passports, pamphlets, newspapers (about 1s. per sheet), advertisements in papers (2s. each), cards, and dice. the papers taxed were to carry a stamp showing that the duties on them had been paid. parliament thought the tax to be fair because it fell on the colonies in proportion to their wealth. but the colonists saw this tax as improper because it was a departure from the nature of past duties in that it was an "internal tax". all of the original thirteen american colonies had adopted magna carta principles directly or indirectly into their law. the stamp duties seemed to the colonists to violate these principles of liberty. patrick henry asserted that only virginia could impose taxes in virginia. schoolmaster and lawyer john adams in massachusetts asserted that no freeman should be subject to any tax to which he had not assented. in theory, colonists had the same rights as englishmen per their charters, but in fact, they were not represented in parliament and englishmen in parliament made the laws which affected the colonists. they could not be members of the house of lords because they did not have property in england. there were demonstrations and intimidation of stamp agents by the sons of liberty. merchants agreed to buy no more goods from england. the stamp duty was repealed the same year it had been enacted because it had been "attended with many inconveniences and may be productive of consequences greatly detrimental to the commercial interests of these kingdoms". to counter the wide-scale running of goods to avoid the customs tax, the customs office was reorganized in 1766 to have commissions resident in the colonies and courts of admiralty established there to expedite cases of smuggling. this angered the colonists, especially boston. boston smuggling had become a common and respectable business. it was the port of entry for molasses from the west indies from which new england rum was made and exported. the entire molasses trade that was essential to the new england economy had been built upon massive customs evasions; royal customs officials had participated in this by taking only token customs for the sake of appearance in london and thereby had become rich. in 1766 parliament imposed a duty of 3d. per pound weight on tea and duties on reams of paper, glass, and lead into the colonies. these import duties were presented as external rather than internal taxes to counter the rationale the colonies gave against the stamp tax. but these items were of common use and their duties raised the cost of living. the king's customs officials were authorized to enter any house, warehouse, shop, or cellar to search for and seize prohibited or uncustomed goods by a general writ of assistance. these writs of assistance had been authorized before and had angered bostonians because they had been issued without probable cause. in paxton's case of 1761, the massachusetts superior court had declared legal the issuance of general writs of assistance to customs officers to search any house for specific goods for which customs had not been paid. the authority for this was based on the parliamentary statutes of 1660 and 1662 authorizing warrants to be given to any person to enter, with the assistance of a public official any house where contraband goods were suspected to be concealed, to search for and seize those goods, using force if necessary. they were called "writs of assistance" because the bearer could command the assistance of a local public official in making entry and seizure. a "general" writ of assistance differed from a "special" writ of assistance in that the latter was issued on a one-time basis. the general writ of assistance in boston was good for six months after the death of the issuing sovereign. authority relied on for such writs was a 1696 statute giving customs officers in the colonies the same powers as those in england, a 1699 act by the massachusetts provincial legislature giving the superior court of massachusetts the same such power as that of the exchequer, and the massachusetts' governor's direction about 1757 to the massachusetts superior court of judicature to perform the function of issuing such warrants. the massachusetts court issued them in the nature of the writs of assistance issued from the exchequer court in england, but had issued them routinely instead of requiring the showing of probable cause based on sworn information that the exchequer court required. few judges in the other american colonies granted the writ. seditious libel trials in england and the colonies were followed closely and their defendants broadly supported. john wilkes, a member of the house of commons, published a criticism of a new minister in 1763. he called king george's speech on a treaty "the most abandoned instance of ministerial effrontery ever attempted to be imposed on mankind". after being found guilty of seditious libel, he again ran for the house of commons, and was repeatedly elected and expelled. he was subsequently elected alderman, sheriff, and mayor of london. in 1770, alexander macdougall was voted guilty of seditious libel by the new york colonial assembly for authoring a handbill which denounced a collusive agreement by which the assembly voted to furnish supplies for the british troops in new york in exchange for the royal governor's signature to a paper-money bill. when he was arrested, the sons of liberty rallied to his support, demanding freedom of the press. benjamin franklin's brother had been imprisoned for a month by the massachusetts assembly for printing in his newspaper criticisms of the assembly. he was forbidden to print the paper. benjamin supported him by publishing extracts from other papers, such as "without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty without freedom of speech... whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech; a thing terrible to public traitors." by statute of 1766, the new york house of representatives was prohibited from meeting or voting until they provisioned the king's troops as required by law. in 1769, harvard college seated its students in class in alphabetical order instead of by social rank according to birth. by 1769, the colonies' boycott of british goods in protest of the new duties cause these imports to decline so much that british merchants protested. so the duties were dropped, except for that on tea, which was retained as a matter of principle to assert the power of the crown to tax the colonies. then in 1773 the east india company was allowed to sell tea directly to the colonies to help it avoid bankruptcy. the effect of this was to lower the cost of tea in the colonies by avoiding the english middleman, and the american middleman, but also to give the east india company a monopoly. the colonies felt threatened by this power of britain to give monopolies to traders. when the tea ships arrived in boston in late 1773, bostonians held a town meeting and decided not to let the tea be landed. they threw this cargo of tea, worth about 18,000 pounds, overboard. this boston tea party was a direct challenge to british authority. in response, parliament closed the port of boston until compensation was made to the east india company. by statute of 1774, no one was to enter or exit the port of boston or else forfeit goods, arms, stores, and boats that carried goods to ships. every involved wharf keeper was to forfeit treble the value of the goods and any boats, horses, cattle, or carriages used. ships hovering nearby were to depart within six hours of an order by a navy ship or customs officer or be forfeited with all goods aboard, except for ships carrying fuel or victuals brought coastwise for necessary use and sustenance of inhabitants after search by customs officers, and with a customs official and armed men for his defense on board. this statute was passed because of dangerous commotions and insurrections in boston to the subversion of the king's government and destruction of the public peace in which valuable cargoes of tea were destroyed. later, the governor was given the right to send colonists or magistrates charged with murder or other capital offenses, such as might be alleged to occur in the suppression of riots or enforcement of the revenue laws, to england or another colony for trial when he opined that an impartial trial could not be had in massachusetts bay. a later statute that year altered the charter of massachusetts bay province so that the choice of its council was transferred from the people to the king to serve at his pleasure, and the appointment and removal of judges and appointment of sheriffs was transferred to the governor to be made without the consent of the council. this was due to the open resistance to the execution of the laws in boston. further, no meeting of freeholders or inhabitants of townships was to be held without consent of the governor after expressing the special business of such meeting because there had been too many meetings that had passed dangerous and unwarranted resolutions. also, jurors were to be selected by sheriffs rather than elected by freeholders and inhabitants. the commander of the british troops in north america was made governor. king george thought that the colonists must be reduced to absolute obedience, even if ruthless force was necessary. the people of massachusetts were incensed. they were all familiar with the rights of magna carta since mandatory education taught them all to read and write. (every township of fifty households had to appoint one to teach all children to read and write. every one hundred families had to set up a grammar school.) the example in massachusetts showed other colonies what england was prepared to do to them. also disliked was the policy of restricting settlement west of the allegheny mountains; the take over of indian affairs by royal appointees; the maintenance of a standing army of about 6,000 men which was to be quartered, supplied, and transported by the colonists; and expanded restrictions on colonial paper currencies. the virginia house of burgesses set aside the effective date of the port bill as a day of prayer and fasting, and for this was dissolved by its governor. whereupon its members called a convention of delegates from the colonies to consider the "united interests of america". this congress met and decided to actively resist british policy. as opposition to british rule spread in the colonies, a statute was passed stating that because of the combinations and disorders in massachusetts, new hampshire, and connecticut, and rhode island to the destruction of commerce and violation of laws, these inhabitants should not enjoy the same privileges and benefits of trade as obedient subjects and that therefore no goods or wares were to be brought from there to any other colony, and exports to and imports from great britain were restricted, on pain of forfeiting the goods and the ship on which they were laden. there vessels were restricted from fishing off newfoundland. these conditions were to be in force until the governors were convinced that peace and obedience to laws was restored. later in 1775, these trade restrictions were extended to new jersey, pennsylvania, maryland, virginia, and south carolina. in 1776, since all the thirteen colonies had assembled an armed force and attacked british forces, these trade restrictions were extended to delaware, new york, georgia, and north carolina and expanded to prohibit all trade during the present rebellion to prevent assistance to them. war had started; the new rifle was used instead of the musket. by statute of 1775, anyone harboring of army or marine deserters in the colonies must forfeit 5 pounds, and persuading a soldier or marine to desert drew a forfeiture of 40 pounds or else up to six months in prison without bail and one hour in the pillory on market day. bounties were made available to vessels from and fitted out in great britain for newfoundland fishing. any shipmaster carrying as passengers any fisherman, sailor, or artificer to america shall forfeit 200 pounds because such men have been seduced from british fishing vessels in newfoundland, to the detriment of the fishing industry. the many years of significant achievements of the colonists, such as taming the wilderness and building cities, had given them confidence in their ability to govern themselves. the average colonial family had a better standard of living than the average family in england. many of its top citizenry had reached their positions by hard work applied to opportunities for upward mobility. with the confidence of success, the american colonies in 1776 declared their independence from britain, relying on the principles stated by john locke and jean jacques rousseau that man was naturally free and all men equal, and that society was only created with their consent. issac's newtons's unified laws of the universe had contributed to this idea of a natural law of rights of men. thomas jefferson wrote a declaration of independence which listed the colonies' grievances against the crown which reiterated many of the provisions of the petition of right and bill of rights, specifically dispensing with and suspending laws, maintaining a standing army and quartering troops without legislative consent, imposing arbitrary taxation, encouraging illegal prosecutions in strange courts, and corrupting the jury process. it was adopted on july 4, 1776. the law trade and the economy boomed in time of war, buttressed by the increased production in the coal, iron, steel, shipbuilding, and cloth industries. but peace brought depression and much misery, including the imprisonment of many debtors. when very many were imprisoned, statutes allowed release on certain conditions. after assets were paid to creditors in proportion to the amounts owed to them, debtors could be discharged from prison if they owed no party more than 100 pounds (later no restriction and still later, 50 pounds, and even later, 500 pounds, and in 1772, 1000 pounds, and in 1774, 2000 pounds) and take an oath that they have less than 10 pounds (20 in 1772) worth of property (including 40s. in money in 1774), because there were so many debtors in prison who were impoverished by war losses and other misfortunes in trades and professions, and were totally disabled from paying their creditors, and they and their families either starved or became a burden to their parishes and became an occasion of pestilence and other contagious diseases. exempted were those debtors for whom there was an objection by one of their creditors who paid for the maintenance of that debtor in prison. prisoners discharged were also discharged from chamber [cell] rent and gaolers' fees, but not from their debts to creditors. during war, no male prisoner could be discharged unless he enlisted in the royal army or navy until the end of the war. in 1774, the discoverer of any asset of a debtor not listed by that debtor was to receive a reward of 20 pounds per hundred, and anyone concealing an asset of a debtor was to forfeit 100 pounds as well as double the value of the asset. a person declared bankrupt shall subsequently be examined from time to time as to their goods, money, or other effects or estate to prevent the frauds frequently committed by bankrupts. a default or willful omission shall be deemed felony without benefit of clergy. a bankrupt or other person concealing goods to the value of at least 20 pounds or his books with intent to defraud is a felony without benefit of clergy. a debtor refusing to come to court for examination or hiding assets of more than 20 pounds is guilty of felony and his goods and estate shall be divided among his creditors. later, a bankrupt coming to an examination was allowed to keep 5 (or 7 1/2 or 10) pounds per 100, up to a maximum of 200 (or 250 or 300, respectively) pounds if he paid his creditors 10s. (or 12s.6d. or 15s. respectively) per pound. his future estate was still liable to creditors (excepting tools of trade, necessary household goods, bedding, furniture, and wearing apparel of the family up to 10 pounds) if it could pay every creditor 15s. per pound. if he didn't pay this, he could be imprisoned. bankrupts excepted from the benefits of this act are those who lost 5 pounds in any one day or 100 pounds in the preceding year from gambling or wagers. no goods or chattels on lands or tenements which are leased for life or lives or term of years or at will or otherwise "shall be liable to be taken by virtue of any execution on any pretence whatsoever unless the party at whose suit the said execution is sued out shall before the removal of such goods from off the said premises by virtue of such execution or extent pay to the landlord" all money due as rent. if the lessee fraudulently or clandestinely conveys or carries off his goods or chattels with intent to deprive the landlord or lessor from distraining the same for arrears of such rent, the lessor or landlord may, within five days, seize such goods and chattels as a distress for the arrears of rent and may sell them as if actually distrained on the premises. every person under 21 and every woman-covert who is entitled by descent or will to be admitted tenants of any copyhold lands or hereditaments may be ordered to appear by a guardian or attorney to be compelled to be so admitted and to pay such fines as are owing by the lands. if one is so admitted, but does not pay, the lord may enter the lands and receive its rents (but not sell timber) until the fine and costs are satisfied, after which the land is to be given back and may not be forfeited to the lord. tenants holding over any lands after their term expired and after demand for possession was made shall pay double the yearly value of such to the landlord. the landlord may reenter and eject a tenant if rent is in arrears for 1/2 year. landlords may distrain within 30 days and sell goods and chattels fraudulently or clandestinely carried off the premises by renters in arrears of rent. this applies to goods sold to others privy to the fraud. they may use force if necessary to break open houses upon giving a justice of the peace reasonable grounds to suspect and to break open other buildings in the presence of a constable. the renter is to forfeit double the value of such. the landlord may distrain the renter's cattle on any common or any growing grain, roots, or fruit. attornments of renters made to strangers who claim title and turn the landlord out of possession are void. chief leases may be renewed without surrendering all the under leases. this is to prevent subtenants from delaying the renewal of the principal lease by refusing to surrender their leases, notwithstanding that they have covenanted to do so. but the rents and duties of the new subleases may not exceed those of their former leases. any person claiming a remainder, reversion, or expectancy in any estate upon a person's death, who has cause to believe that that person is dead and that the death is being concealed by the person's guardian, trustee, husband, or other person, may request yearly an order in chancery for the production of such tenant for life. upon refusal, the tenant for life shall be deemed dead. as of 1752, all devices, legacies, and bequests made by will in great britain or the colonies had to be in writing and witnessed by three witnesses, or would be held void. no witness was to receive anything by the will that he witnessed. an accessory before or after the fact of felony may be prosecuted and tried not only if the principal accused felon has been convicted, but even if he stood mute or peremptorily challenged over 20 persons to serve on the jury. the accessories shall be punished the same as if the principal had been attainted. buyers and receivers of stolen goods may be prosecuted and punished if they knew the goods to be stolen, even if the principal felon has not been convicted. the punishment will be as for misdemeanor by fine and imprisonment. this is to deter the counselors and contrivers of theft and other felonies and the receivers of stolen goods from taking advantage of the former rule that an accessory could not be convicted or punished unless the principal had first been attainted. and if any captain or mariner or other officer belonging to any ship willfully casts away, burns, or otherwise destroys that ship to the prejudice of its owners or merchants loading goods onto the ship, he shall suffer death as a felon. journeymen shoemakers or employees of such who sell or pawn boots, shoes, slippers, cut leather or other materials for making such goods which are not his proper goods, or exchange for worse good leather which has been entrusted to them, shall for the first offense, recompense the injured person, or if his goods are insufficient for distress, may be whipped. for the second offense, he shall be sent to hard labor in a house of correction for 14-30 days. a person who buys or receives or takes in pawn such goods shall suffer the same penalties. justices of the peace may issue warrants to search houses and buildings in the daytime if there is "just cause to suspect" such goods therein based upon information given to him under oath. anyone employed in the working up of woolen, linen, fustian, cotton, or iron manufacture who embezzles or purloins any materials for their work shall forfeit double the value of the damages done and anyone convicted thereof may be put into the house of correction until he pays, or if he can't pay, to be publicly whipped and kept at hard labor for no more than 14 days. persons convicted of buying or receiving such materials shall suffer like penalties and forfeitures as one convicted of embezzling or purloining such materials. laborers employed in such manufacture must be paid in coin and not in cloth, victuals, or commodities in lieu thereof. leatherworkers were added with a penalty of up to double the value. later this statute was amended to include a penalty for the second offense of forfeiture of four times the value, or else hard labor at a house of correction for 1-3 months and whipping once or more in the market town. like penalties were given for buyers of such material knowing it to be false. one who neglected finishing and delivering such goods because he was leaving this employment was to be sent to the house of correction for up to one month. the penalty for possessing or offering to sell any hare, pheasant, partridge, moor or heath game or grouse by any carrier, innkeeper, victualer, or alehouse keeper is 5 pounds, 1/2 to the informer, and 1/2 to the poor of the parish. if unable to pay, the offender shall be placed in the house of correction for three months without bail. unauthorized persons keeping or using greyhounds, setting dogs, or any engine to kill game shall suffer the same penalties. in 1770, anyone killing hare at night or using any gun, dog, or other engine to take or kill or destroy any hare, pheasant, partridge, moor game, heath game, or grouse in the night shall be whipped and also go to gaol or the house of correction for 3-6 months without bail for the first offense, and for 6-12 months without bail for any further offense. if such occurs on a sunday, the offender must forfeit 20-30 pounds or go to gaol for 3-6 months. in 1773, no one may kill or take or possess any heath fowl or any grouse except at a limited period during the year. each manor may have only one gamekeeper allowed to kill game such as hare, pheasant, partridge and only for his household's use. this gamekeeper must be either qualified by law or a servant of the land's lord. other persons possessing game or keeping a greyhound or setting dogs or guns or other devices to kill game must forfeit them and five pounds. anyone killing or attempting to kill by shooting any house dove or pigeon shall forfeit 20s. or do hard labor for one to three months. excepted are owners of dove cotes or pigeon houses erected for the preservation and breeding of such. a gamekeeper or other officer of a forest or park who kills a deer without consent of the owner must forfeit 50 pounds per deer, to be taken by distress if necessary, and if he can't pay, he is to be imprisoned for three years without bail and set in the pillory for two hours on some market day. a later penalty was transportation for seven years. anyone pulling down walls of any forest or park where deer are kept, without the consent of the owner, must forfeit 30 pounds and if he can't pay, he is to be imprisoned for one year without bail and spend one hour in the pillory on market day. later, the killing of deer in open fields or forests was given the same penalties instead of only the monetary penalty prescribed by former law (former chapter). the penalty for a second offense was given as transportation for seven years. anyone beating or wounding a gamekeeper with an intent to kill any deer in an open or closed place was to be transported for seven years. anyone who apprehends and prosecutes a person guilty of burglary or felonious breaking and entering any house in the day time shall be rewarded 40 pounds in addition to being discharged from parish and ward offices. anyone who feloniously steals or aids in the stealing of goods, wares, or merchandise over 5s. from a shop, warehouse, coach house, or stable (by night or by day, whether the owner is present or not, whether there is a break in or not) may not have benefit of clergy. anyone stealing goods of 40s. worth from a ship on any river or in any port or creek or from any wharf may not have benefit of clergy. anyone receiving or buying goods they know to be stolen or who harbors or conceals any burglars, felons, or thieves knowing them to be such shall be taken as accessory to the felony and shall suffer death as punishment if the principal felon is convicted. a person taking money or reward for helping any other person to stolen goods or chattels is guilty of felony unless he brings the thief to trial. as of 1717, any person convicted of grand or petit larceny or any felonious stealing or taking of money, goods, or chattels, either from the person or from the house of any person who is entitled to benefit of clergy and who is liable only to whipping or burning in the hand may instead be transported to the american colonies to the use of any person who will pay for his transportation for seven years. any person convicted of an offense punishable by death and without benefit of clergy and buyers and receivers of stolen goods may be given mercy by the king on condition of transportation to any part of america to the use of any person who will pay for his transportation, for fourteen years or other term agreed upon. returning before the expiration of the term is punishable by death. anyone assaulting another with an offensive weapon with a design to rob may be transported for seven years. any person armed with swords, firearms, or other offensive weapons and having their faces blackened or otherwise being disguised, who appears in any forest, park, or grounds enclosed by a wall or fence wherein deer are kept (including the king's deer) or in any warren or place where hares or conies are kept or in any high road, open heath, common, or down, or who unlawfully hunts, wounds, kills, or steals any deer or steals any hare or rabbit or steals any fish out of any river or pond or who unlawfully and maliciously breaks down the head or mound of any fish pond, causing the loss of fish, or who unlawfully and maliciously kills, maims, or wounds any cattle, or who cuts down any trees planted in any avenue or growing in any garden or orchard for ornament, shelter, or profit, or who sets fire to any house, barn or out house [outer building], hovel, or stack of grain, straw, hay or wood, or who willfully and maliciously shoots any person in any dwelling house or other place, or who sends any letter with no signature or a fictitious signature, demanding money, venison, or other valuable thing, or who forcibly rescues any person lawfully in custody for any of these offenses, or who procures others by gift or promise of money or other reward to join with him in any such unlawful act is guilty of felony and shall suffer death without benefit of clergy. persons abetting them are also guilty of felony and shall suffer death without benefit of clergy. attainder shall not work corruption of the blood, loss of dower, or forfeiture of lands, goods, or chattel. the persons sustaining damages can recover 200 pounds or less from the hundred, with inhabitants paying proportionately, unless one of the offenders is convicted within six months. if other hundreds have not diligently followed the hue and cry, they shall pay half such damages. in 1735, it was required that there be notice to the constable or other officer or tythingman and public notice in the london gazette describing the robbery, offenders, and goods taken before the hundred had to pay damages. also, it did not have to pay damages if one offender was apprehended with 40 days of publication in the london gazette, but did have to pay the apprehender 10 pounds. in 1754 was also included letters threatening killing people or burning houses, barns or stacks of grain, hay, or straw, without any demand. also, persons who rescued such offenders from gaol were given the same penalty. later, persons obtaining money or goods by false pretenses with an intent to defraud or cheat or sending a letter without a true signature threatening to accuse any person of a crime with an intent to extort money or goods, are punishable by fine and prison, pillory, or whipping or transportation for seven years. later, no person may recover more than 200 pounds after a hue and cry unless there are at least two witnesses to the robbery. no one may advertise a reward for return of things stolen or lost with no questions asked, because this has resulted in thefts and robberies. justices of the peace may authorize constables and other peace officers to enter any house to search for stolen venison. any person apprehending an offender or causing such to be convicted who is killed or wounded so as to lose an eye or the use of a limb shall receive 50 pounds. any person buying suspect venison or skin of deer shall produce the seller or be punished the same as a deer killer: 30 pounds or, if he couldn't pay, one year in prison without bail and one hour in the pillory on market day. an offender who discloses his accomplices and their occupations and places of abode and discovers where they may be found and they are subsequently convicted, shall be pardoned. anyone stealing sheep or cattle or parts thereof is a felon and shall suffer death without benefit of clergy. persons who steal or aid in stealing any lead, iron bar, iron gate, palisade, or iron rail fixed to any house or its outhouses, garden, orchard, or courtyard is guilty of felony and may be transported for seven years. in 1756 also included was copper, brass, bell-metal, and solder; buyers and receivers; and mills, warehouses, workshops, wharves, ships, barges, and other vessels. search warrants were authorized in case of suspicion. officers and solicited buyers and receivers were required to take persons who at night were reasonably suspected of having or carrying such items, to an accounting before a justice of the peace. also a notice was put in the newspaper for any owners to claim such. if the person did not give a satisfactory account of the items, he was guilty of a misdemeanor punishable by forfeiture of 2 pounds or prison up to one month for the first offense, 4 pounds or prison for two months for the second offense, and 6 pounds or prison for any subsequent offense (without bail). an officer or solicited buyer or receiver who did not take a suspect to a justice of the peace was punishable by the same penalties except the amounts of forfeiture were 1 pound, 2 pounds, and 4 pounds respectively. a felon who brought two buyers or receivers to justice was to be pardoned. a description of any goods and the appearance of a rogue or vagabond or idle and disorderly person shall be advertised in a public paper for identification by the owner as stolen. pawning goods without consent of the owner is punishable by forfeiture of 20s. or hard labor for fourteen days with whipping there. maliciously destroying river banks resulting in lands being overflowed or damaged is a felony for which one shall suffer death without benefit of clergy. later, transportation for seven years was made an alternative. all persons pretending to be patent gatherers or collectors for prison gaols or hospitals and all fencers, bearwards, common players of interludes, minstrels, jugglers, and pretended gypsies, and those dressing like egyptians or pretending to have skill in physiognomy, palm-reading, or like crafty science, or pretending to tell fortunes, and beggars, and all persons able in body who run away and leave their wives or children to the parish shall be deemed rogues and vagabonds. apprehenders of such persons bringing them before a justice of the peace may be rewarded 2s. any constable not apprehending such shall forfeit 10s. persons wandering outside the place determined by a justice of the peace to be his settlement may be whipped on the back until it is bloody or sent to hard labor at a house of correction. if he was dangerous and incorrigible, for instance as indicated by swearing falsely before a justice of the peace, he could suffer both punishments with the whipping being on three market days. if he escaped from the house of correction, it was felony. if he has been absent for more than two years, he could be put out as an apprentice for seven years in the realm, in the colonies, or in a british factory beyond the seas. included later were performers for gain from outside their parish of any play, tragedy, comedy, opera, farce or other entertainment of the stage, including performances in public places where wine, ale, beer, or other liquors are sold, or else forfeit 50 pounds. exempted were performances authorized by the king in westminster. unlicensed places of entertainment are deemed disorderly (like bawdy houses and gaming houses) because they increase idleness, which produces mischief and inconvenience. persons therein may be seized by a constable. persons keeping such a place shall forfeit 100 pounds. no licensed place of entertainment may be opened until 5:00 p.m. later there was an award of 5s. for apprehending a person leaving his wife and children to the parish, living idly, refusing to work at going rates, or going from door or placing themselves in the streets to beg. this includes begging by persons who pretend to be soldiers, mariners, seafaring men, or harvest workers. these rogues and vagabonds shall be sent to hard labor at a house of correction for up to one month. the real soldiers, mariners, seafaring men, and harvest workers shall carry official documents indicating their route and limiting the time of such passage. persons pretending to be lame who beg are to be removed. if he comes back to beg, his back may be whipped until bloody. if a constable neglects this duty, he shall forfeit 10s. masters of ships bringing in vagabonds or beggars from ireland or the colonies shall forfeit five pounds for each one. this money shall be used for reconveying such people back at a price determined by a justice of the peace. a master of a ship refusing to take such a person shall forfeit five pounds. these vagabonds and beggars may be whipped. anyone who profanely curses or swears shall suffer the following penalties: day laborer, common soldier, common sailor, common seaman 1s., anyone else below the degree of gentleman 2s., gentlemen and above 5s., and for the second offense, a double fine, for further offense, a treble fine. if a person can't pay, he shall be put to hard labor at a house of correction for ten days, or if a common soldier, common sailor, or common seaman, he shall be set in the stocks for 1-2 hours. this is to prevent the provocation of divine vengeance. anyone setting up or maintaining lotteries or deceitful games must forfeit 200 pounds, or go to prison up to 6 months. any one who plays at such, such as by drawing lots or using cards or dice, must forfeit 50 pounds. sales of lottery items, such as houses, lands, plate, jewels, or ships, are void and these items will be forfeited to any person who sues. such have caused many families to become impoverished, especially through their children or through the servants of gentlemen, traders, and merchants. backgammon games are exempt. later, people who lost up to ten pounds in deceitful gaming were allowed to sue to recover this money from the winners. also, anyone winning or losing ten pounds at one time or twenty pounds within 24 hours shall be fined five times the value of such. offenders discovering others, who are convicted, are indemnified from all penalties and shall be admitted to give evidence. no one may run more than one horse, mare, or gelding in a horse race. no prize may be under 50 pounds value. this is because a great number of horse races for small prizes have contributed to idleness, to the impoverishment of the meaner sort of people, and has prejudiced the breed of strong and useful horses. wagers and agreements in the nature of puts and refusals relating to prices of stocks or securities are void. those making or executing such agreements must forfeit 500 pounds. those selling stock which one does not possess must forfeit 500 pounds. brokers negotiating such agreements must forfeit 100 pounds. only a person with an interest in the life or death of another may have insurance on this other, to prevent the mischievous kind of gaming that has been introduced. the punishment for forgery or counterfeiting or assisting in such or claiming a counterfeit item is good while knowing that it is not, with an intent to defraud is death without benefit of clergy. the punishment for perjury or subordination of perjury is hard labor in the house of correction for up to seven years or transportation for up to seven years. the punishment for altering numbers on bills of exchange or other payment papers is death. it is high treason to counterfeit the coinage. a person who tenders coin, knowing it to be false, shall spend six months in prison and acquire sureties for good behavior for the next six months. if he offends again, he shall spend two years in prison and acquire sureties for good behavior for the next two years. the third offense is felony without benefit of clergy. in 1773, making or possessing any frame, mould, or instrument for forging paper notes of the bank of england and putting this identification thereon is felony with penalty of death without benefit of clergy. anyone who forges promissory notes, bills of exchange, or inland bills of the bank of england by engraving or etching on metal or wood "bank of england" or "bank post bill" shall go to gaol for up to six months. anyone selling gold or silver ware, vessel, plate or other item large enough to be marked which has not been marked by its maker shall forfeit 10 pounds or be kept at hard labor up to six months. anyone counterfeiting such mark shall forfeit 100 pounds. later, vendors of these items were required to be licensed and the penalty for counterfeiting was raised to felony for which one shall suffer death without benefit of clergy. later still, transportation for fourteen years was allowed as an alternative. if an item was not all silver, e.g. had metal underneath, 100 pounds was to be forfeited. in 1769, receivers of stolen jewels and gold and silver plate and watches knowing them to be stolen, in cases of burglary and highway robbery, were subject to transportation for 14 years. apples and pears may not be sold by any measure other than a standard water measure, or else forfeit 10s., one-half to the informer, and one-half to the poor, except for measures sealed by the company of fruiterers. this is to decrease the suits between buyers and sellers. there shall be enough silver and gold on silver and gold plated silk thread and wire so that it does not crumble off, thereby wasting the bullion of the nation. this is also to encourage its export by making it competitive in trade with such foreign articles, which may not be imported. malt to be sold or exported must not be fraudulently mixed with unmalted grain to lower duties payable or else forfeit 5s. any one who adulterates coffee with water, grease, butter, and such shall forfeit 20 pounds, 1/2 to the king, and 1/2 to the suer. walnut tree leaves, hop leaves, sycamore leaves and such may not be made to imitate tobacco leaves for sale or else forfeit 5s. per pound. persons near london may not make unsound, hollow, or improperly heated bricks. makers of narrow woolen cloths must weave or set in the head of every piece his initials or else forfeit one pound. this is to prevent frauds and abuses, particularly in stretching and straining the cloth. the fulling mill owner must append his seal of lead with his name and with his measurements. the searcher to be appointed must measure such cloths when wet for conformity to standard measurements and append his seal with his measurements. he may also inspect any places he chooses. in 1774, any wool-making employee not returning all working tools and implements and wool and all materials with which entrusted back to his employer, or who fraudulently steams, damps, or waters such wool, or who takes off any mark on any piece of cloth, shall go to the house of correction for one month. if he absconds with or sells such or anyone fraudulently buys or receives such from him, a search warrant may be issued to seize any other such tools or material. if found, the possessor may be brought to account before a justice of the peace, and if his account is not satisfactory, he shall forfeit such. a search warrant may also be issued for houses on "just cause to suspect" by oath of a credible witness. for a second offense, the penalty is up to three months in a house of correction. for a third offense, the penalty is up to six months in a house of correction and public whipping. bakers must mark their bread with w for white, wh for wheaten, and h for household or else forfeit 20s. to the informer. in 1758, a new assize of bread set prices for rye, barley, oats, and beans by the bushel. the prices for the three qualities of wheat, for wheaten (prized and unprized), and for household grain by the bushel were to be determined from within a statutory range by the local mayor or justice of the peace. mayors and justices of the peace were to determine a fair profit for their local bakers for all the types of bread. a miller, mealman, or baker adulterating bread was to forfeit 40s. 10 pounds, part of which money could be used in publishing his name, abode, and offense in the local newspaper. later, there was a forfeiture of 1-5s. for every ounce underweight. household bread was to be 1/4 cheaper than wheaten or forfeit 10-40s. bread inferior to wheaten was not to be sold at a price higher than household or else forfeit up to 20s. if the forfeiture was not paid, it could be levied by distress, or otherwise the offender was to spend one month in gaol or a house of correction. straw to be sold in london must be sound, firmly bound in a truss, and of a given weight or else forfeit it and 20s. if no truss, and 1s. if in truss but underweight or of mixed quality. handlers must keep registers of sellers, buyers, weights, dates of sale, and prices or else forfeit 10-20s. frame-work knitted pieces and stockings shall be marked with the correct number of threads by the master, frame-work knitter, or master hosier, or forfeit the goods and 5 pounds. if a journeyman apprentice, or servant employ does not mark correctly, he shall forfeit the goods and 5s.-40s. sellers of such shall forfeit the goods and 5 pounds per piece. at every fishing season, the quantity of salt, foreign or domestic, used by a proprietor for curing fish for export shall be accounted and sworn to so that it can be compared with the quantity of fish exported by the proprietor to ensure that the salt duties are fully paid, or else forfeit 40 pounds. if such salt is sold for other uses than curing fish, the proprietor is to forfeit 20s. per bushel sold and the users thereof, to forfeit 20s. per bushel bought, delivered, or used. if one can't pay, he is to be whipped and put to hard labor in a house of correction for up to three months. agreements between coal owners, lightermen, fitters, master or owners of ships, hindering the free sale, loading, and unloading, navigating, or disposing of coals are illegal, null, and void. this is engrossing and has caused the price of coals to go up. no coal trader or dealer may use his own lighters, barges, or other vessels to carry coals on the thames river to and from any ship and to and from any wharf, dock, or creek because this has impaired the business of the watermen and wherrymen, whose vessels must now be registered and display such mark on their hulls. no lightermen nor buyers of coals may act as agent for any master or owner of a ship importing coals into london or else forfeit 200 pounds, because this combination has caused the price of coal to go up. selling one sort of coal for another is punishable by forfeiture of 500 pounds. only standard size coal sacks may be used for selling coal and they must be sealed and stamped by an official at the guildhouse before sale. the mayor and aldermen of london may set the price of coals coming into this port. in other areas, justices of the peace set the prices of coals which allowed "a competent profit". if a merchant refused to sell at that price, the justice of the peace could authorize seizure and sale by officers. later, coal measurers must give the coal cart driver a ticket with the name of the sellers and consumers, the quantity and quality of the coal, its price, the date of sale, and the name of the cart driver or else forfeit 5 pounds. the cart driver must give this ticket to the consumer or forfeit 5 pounds. if coal is carried by cart without a ticket, the seller forfeits 50 pounds and the driver 5 pounds. anyone who willfully and maliciously set on fire any mine or pit of coal is guilty of felony and shall suffer death without benefit of clergy. anyone who willfully and maliciously floods a coal work, mine pit or who makes underground cavities or passages with intent to destroy or damage such, or obstructs any sough or sewer made for draining such, which has been held in common for 50 years, shall forfeit treble damages. this is to deter these offenses, which have been done to enhance the price of coals and gain a monopoly thereof. if twelve or more people who riotously and tumultuously assemble and disturb the peace, do not disburse within an hour of an order to disburse by a justice or sheriff or mayor, they shall be deemed felons without benefit of clergy. any people pulling down or destroying a church, dwelling house, barn, stable, or other out house; any mill; any engine used for draining water from any coal, lead, tin, or copper mines, or for drawing coals from mines; or bridge, wagon, or fences used in such industry will be deemed felons without benefit of clergy and may be transported for seven years. the cost of repair is to be borne by the hundred or town. any owner of timber trees, fruit trees, and other trees used for shelter, ornament, or profit, which are cut down or otherwise destroyed shall be made good by his parish or town, as is an owner of hedges and dikes overthrown by persons in the night. in 1765, anyone cutting down or destroying any oak or other timber trees at night shall forfeit up to 20 pounds for the first offense, up to 30 pounds for the second offense, and shall be transported to the colonies for seven years for any further offense. anyone digging up or destroying or carrying away any root, shrub, or plant worth up to 5s. in a garden, nursery, or other enclosed ground at night shall forfeit up to 2 pounds for the first offense, up to 5 pounds for the second offense, and shall be transported to the colonies for seven years for any further offense. anyone not paying is to be gaoled. aiders and buyers who know the item was stolen shall incur the same penalties. later, many other types of trees, such as beach, ash, elm, cedar, and walnut were included as timber trees, and hollies, thorns, and quicksets included as plants. the previous statute that substituted burning in the cheek for burning in the hand is repealed because this not only did not deter offenders, but on the contrary, made them unfit for honest livelihoods and therefore more desperate. those convicted of theft or larceny shall be burnt in the hand and may be kept at hard labor in a house of correction for 2-24 months, without bail. any person using violence to hinder the purchase or transportation of grain, e.g. by beating or wounding a buyer; beating or wounding the driver or horse of a cart loaded with wheat, flour, meal, malt, or other grain, or cutting the harness of or driving away the horse, or cutting or carrying away the sacks of grain is to be put in the common gaol or house of correction with hard labor for 1-3 months, and whipped in the market place between 11:00 and 2:00. the penalty for a second offense or for destroying a storehouse or granary where grain is kept to be exported or for taking or spoiling such grain, or for throwing such off a ship or vessel is transportation for seven years. the hundreds concerned are to pay damages up to a total of 100 pounds, but only if notice is given to the constable within two days and there is an oath and examination before a justice of the peace within ten days of the owner or his servants. if any offender is convicted within a year, the hundreds are released. anyone who steals at night any cloth or wool or woolen goods set out to dry on racks shall forfeit treble damages, or if he can't pay, be sent to prison for three months without bail. for the second offense, he shall forfeit treble damages and be sent to prison for six months without bail. for the third offense, he shall be transported for seven years. upon complaint, a justice of the peace may authorize a constable or other peace officer to enter and search houses, outhouses, yards, and gardens of a person suspected by the owner. this person shall account to the justice of the peace and may bring a witness to his purchase of the items. if the account is unsatisfactory, he shall be penalized. anyone taking linens, fustians, or cottons set out for whitening, bleaching, or printing up to the value of 10s. in lands, grounds, or buildings may be transported for seven years. later, this penalty was increased to death without benefit of clergy or transportation for fourteen years. anyone stealing or maliciously pulling up or destroying any turnips on a person's land must pay damages or go to gaol for up to one month. he may be whipped. the penalty for a second offense is three months in a house of correction. this statute of 1750 was, in 1773, extended to include potatoes, cabbages, parsnips, peas, and carrots. a penalty up to 10s. was added. evidence of the owner was to be taken. in 1769, anyone who steals a dog or receives such knowing it to be stolen shall forfeit 20-30 pounds for the first offense, and 30-50 pounds for the second offense or go to gaol or the house of correction for 12-18 months and be publicly whipped there. search warrants may be issued to search for stolen dogs or their skins. one-half of the forfeiture will go to the informer. in 1712 was the last execution for witchcraft. by statute of 1736, witchcraft, sorcery, enchantment, and conjuration were abolished as crimes. persons pretending witchcraft, sorcery, enchantment, or conjuration; or telling fortunes; or pretending by occult knowledge to discover the location of stolen goods may be imprisoned for one year without bail and put in the pillory in the market place once in every quarter of such year. anyone stealing goods off shipwrecks, or putting out a false light to bring a ship to danger, or beating or wounding with an intent to kill or otherwise obstructing a person escaping from the ship to save his life shall suffer death without benefit of clergy. except that good of small value taken without violence shall be punished as petit larceny. the houses of suspect people may be searched by warrant. if there are goods found or if people are found offering goods to sell, they may be ordered by a justice to give an account of these goods. if the account is not satisfactory, the punishment is forfeiture of treble their value or six months in prison. a reasonable reward may be given to the discoverer. anyone assaulting a magistrate or officer involved in salvage work shall be transported for seven years. officers of the revenue who collude with importers to return to them goods which have been seized for nonpayment of duties shall forfeit 500 pounds and lose office, unless they disclose their accomplices within two months. the importer shall forfeit treble the value of such goods. armed persons up to three in number assembled to assist in illegal exporting or running, landing, or carrying away prohibited or uncustomed goods, and any person apprehended by any revenue officer, and anyone with his face blackened or masked who obstructs, assaults, opposes, or resists any revenue officer seizing such goods, or who shoots at or maims or wounds any revenue officer attempting to go on any ship shall suffer death as felons without benefit of clergy or serve as commons sailors in the navy for at least one year. harborers of such offenders will be transported for seven years. the hundreds shall pay 100 pounds for each revenue officer killed, and up to 40 pounds for each one beaten, wounded, or maimed, and damages up to 200 pounds for goods, unless an offender is caught and convicted in six months. there is a reward of 500 pounds to an apprehender, and 50 pounds for an attempt to apprehend in which one loses a limb or eye or is maimed or wounded, and 100 pounds to his family if he is killed. an offender who brings two of his accomplices to justice will be acquitted and rewarded 50 pounds for each such accomplice. later, an incentive was given to customs officers to have a portion of the proceeds of the sale of such goods seized by them, such as 2/3 for wrought silks and calicoes, and 1/3 for tea, coffee, foreign brandy, and rum. still later, any person could seize wrought silk, including ribbons, laces, and girdles containing it, from the importer or retailer, and the importer was to forfeit 100 pounds, and any import assistants 50 pounds, and retailers or concealers 50 pounds, with one half going to the suer. also, the goods were to be publicly burnt. still later, the penalty was increased to forfeiture of 200 pounds for all offenders, but not including wearers, and the goods were to be publicly sold for export rather than burnt. then the import of silk stockings, silk mitts, and silk gloves was prohibited for the support of the english silk industry. retailers, sellers, and concealers of such were to forfeit the goods and 200 pounds. search warrants could be issued. in 1765, importers, sellers, and manufacturing users of most foreign wrought silks or velvets were to forfeit the goods and 100 pounds. the goods were sold for export with the proceeds going 1/2 to the king, and 1/2 to the seizing officer. the wearer was not liable. the burden of proof of the place of manufacture was on the person prosecuted rather than on the prosecutor. persons breaking into houses or shops to destroy any wool or silk being made or tools or racks used shall suffer death as felons, to prevent combinations of workmen. in 1768, bounties were made available to american exporters of raw silk to great britain, whose climate was not conducive to the growing of mulberry trees on which silk worms feed. in 1774, cotton printed, stained, or dyed that has been manufactured in great britain may be worn and used, but must have a mark woven in the warp that it was manufactured in great britain. persons importing other such cloth shall forfeit it and ten pounds per piece. persons selling such with a counterfeit stamp with an intent to defraud shall suffer death without benefit of clergy. the protective measures for english silk manufacture did not work well. any ship not more than 50 tons hovering on the coast with customable or prohibited goods may be boarded by a customs officer, who may demand bond for treble the value of the goods. in 1724, persons contracting with artificers and manufacturers of wool, iron, steel, brass, and other metals, clockmakers, or watchmakers, to go to a foreign country and there receive greater wages and advantages shall forfeit 100 pounds and spend 3 months in prison for the first offense, and shall forfeit a sum determined by the court and spend 12 months in prison for the second offense. an artificer or manufacturer not returning after warning is given by the ambassador is to forfeit hereditaments, goods, and lands and to be deemed an alien. later, in 1750, cotton and silk were included and the penalty was increased to 500 pounds and 12 months in gaol for the first offense, and 1000 pounds and 2 years in prison for the second offense. also, anyone exporting tools of wool or silk manufacture was to forfeit the tools and 200 pounds. this statute was strictly enforced. in 1774, tools of cotton and linen manufacture were included. in 1772, all statutes against engrossing, forestalling, and regrating were repealed because they had prevented free trade and tended to increase prices, e.g. of grain, meal, flour, cattle, and other victuals. anyone assisting a felon (except for petty larceny) to try to escape from gaol, is guilty of felony and shall be transported for seven years. anyone assisting a person who owes or is to pay 100 pounds to try to escape from gaol is guilty of a misdemeanor. in 1772, prison keepers were indemnified from creditors for any escapes of debtors due to conspiracy and break out with weapons and firearms rather than due to negligence of the prison keeper, as had been occurring. any pirate, accessory to piracy, commander or master or other person of any ship or vessel who trades with a pirate or furnishes him with ammunition or provisions of fits out a ship to trade with pirates shall suffer death and loss of lands, goods, and chattels. seamen maimed in fighting pirates may be admitted into greenwich hospital. (this hospital received support from duties paid by vessels of the realm and of the colonies.) masters or seamen not fighting shall forfeit their wages and spend 6 months in prison if the ship is taken. masters shall not advance to any seamen above half his wages since deserting is the chief occasion of their turning into pirates. in london penalties for crimes against property rose so that by 1740, a child could be hanged for stealing a handkerchief worth 1s. from a person's body. no more than 600 pounds of gunpowder may be kept in any building in london or westminster or suburbs thereof. later, no more than 200 pounds of gunpowder were allowed to be kept therein for more than 24 hours. buildings may be searched on "reasonable cause" shown to a justice of the peace. later, no more than 400 pounds of gunpowder could be kept for more than 24 hours near any town, or more than 300 pounds for more than 24 hours in any place. then no gunpowder could be conveyed by land over 25 barrels or by water over 200 barrels. it was customary for officers to take the oaths of allegiance and supremacy to any new monarch. when george i became king in 1714, all civil and military officers, clergy, schoolmasters, and lawyers, solicitors, clerks, etc. living within 30 miles of london had to take an oath of allegiance and a new oath that the person was not papist and agreed that no foreigners had jurisdiction in the realm, such as to excommunicate someone and thus declaring he could be legitimately killed. soon after, it was required that papists had to register their names and real estates. commissioners were appointed to make inquiries. if a person did not take the oaths or did not register, he was to forfeit 2/3 of his land to the king and 1/3 to a protestant who sued for such. this was in order to deter future rebellions against the king and efforts to destroy the protestant religion. papists enlisting in the army are liable to corporal punishment, but not death, as determined by a court martial. any mayor, bailiff, or other magistrate who is present at any meeting for public worship other than the church of england will lose office and is barred from any public office or employment. as late as 1722, there was a papist conspiracy to take the tower of london and the king, and make a catholic king. this resulted in the imprisonment of the conspirators and a new statute: persons not taking the oath of allegiance and above oath that they were not papist shall register their lands and yearly rents and pay double the land tax and 100,000 pounds. after payment, they are discharged from forfeiting 2/3 of their lands' rents for one year. jews may not refuse suitable maintenance to their children who are christian to pressure them to convert back to judaism. black slaves were common for a time in london. this was a result of the voluminous triangle trade of manufactured goods from england, slaves from west africa, and sugar and tobacco from the west indies. slavery was largely abolished by judicial decision of chief justice mansfield in 1772. if a sheriff does not answer for money collected for the exchequer, he shall forfeit treble damages to the aggrieved person, double the sum missing to the aggrieved person, 100 pounds to the king, and 100 pounds to the party who sues. if a sheriff take a fee for levying or collecting money due to the king (except 4d. for an acquittance) or take a sum for not levying money due, he is guilty of extortion, injustice, and oppression and shall forfeit treble damages and costs to the aggrieved person, and double the sum extorted to the aggrieved person. a sheriff may not levy more than 12d. for every 20s. of yearly income of any manor for up to 100 pounds of income, and 6d. for value over 100 pounds. no one may cut pine trees that are fit for masts of ship in new england without license by the queen or else forfeit 100 pounds. later, pine trees on private property were exempted. citizens of great britain may sue colonial debtors by oath before british magistrates and a debtor's colonial lands and houses and negroes may be used to satisfy his debts. anyone pretending to act under a charter and taking subscriptions in great britain or the colonies must forfeit treble damages. no hats, including beaver hats, may be exported from any colony even to another colony because this has hurt british hat manufacture. the penalty is 500 pounds. no one in the colonies except present hatmakers who are householders and journeymen may make hats unless they serve a seven year apprenticeship. no hatmaker in the colonies may have more than two apprentices at once. whaling ships near greenland were prohibited from returning until their hulls were full. vessels built or fitted out in america may engage in whaling. pig iron from the colonies may be imported free, but there may be no mill for slitting or rolling iron and no plateing-forge or other engine to work with a tilt hammer and no furnace for making steel erected or used in the colonies or else forfeit 200 pounds. no paper bills of credit may be used in new england because such have depreciated. william blackstone lectured on law at oxford university in 1753. as a result, the first professorship of english law was established. his lectures were published in 1769 as the "commentaries on the laws of england". they greatly influenced the american colonists and were the basis of legal education in england and america for years. they were comprehensive and covered real property, crime and punishment, court procedure, contract, corporations, and commercial law. he wrote "the great charter and charter of the forest" in 1759. judicial procedure for actions under 10 pounds in a superior court and actions under 40s. in an inferior court, the offender shall be served with process to appear in court rather than being arrested. for money at issue, an affidavit shall be taken. no more money may be taken for bail than the amount at controversy. this is to prevent frivolous and vexatious arrests. perjurers, forgers, those involved in barratry or suborning perjury, and pretenders practicing as attorneys or solicitors in the courts of law or equity shall be transported for seven years to the american colonies. unqualified people acting as attorneys or solicitors in the county court shall forfeit 20 pounds. no one may practice as an attorney in the courts of king's bench, common pleas, or exchequer until he has been examined by a judge of such court on his fitness and qualifications and has taken the oath to honestly demean himself and practice according to his best knowledge and ability. the same applies to a solicitor in the equity courts. this shall not exclude persons who have been bound to an attorney or solicitor for four years. attorneys and solicitors, with consent of an attorney of another court, may participate in proceedings of such other court. no attorney may have more than two clerks bound to him at one time. attorneys may be admitted as solicitors and vice-versa. there were twelve common law justices of the court of the king's bench, court of common pleas, and court of the exchequer. the chief justices of all of these courts were paid partly from fees paid to the court. the other justices of these courts were paid completely by salary, which in 1759 was well over 500 pounds per year. these justices were to continue in office even after a king died and could be removed only for good cause upon the address of both houses of parliament. the officers of these courts were attorneys. there was one justice at doctors' commons. the two chancery justices (since edward i) were the lord chancellor and the master of the rolls. the salary of the eleven masters of the court of chancery in 1765 was 400 pounds per year. the officers of this court were solicitors. appeals from the exchequer could be made to a court of the king's bench and common pleas combined. appeals from common pleas could be made to the king's bench. decisions of the king's bench and other common law courts could be appealed to parliament. the common law courts rode circuit twice a year in five circuits and once a year in the north circuit. so an accused person could spend up to a year in gaol waiting for trial. few prisoners were granted bail. in each common law court, the law justices in banc would hear demurrers [contentions that the other party was wrong in the law]. no one with an interest in a suit, including the plaintiff and the defendant, could give evidence. there was no power to amend pleadings, so misspelling of the defendant's name, for instance, could result in dismissal of the suit. in 1730, the pleadings and indictments ceased to be in latin. compurgation still existed for debt and detinue. writs of error at variance from the original record or otherwise defective may be amended to correct the defect by the court where such writ is returnable. no judgment is to be reversed for any defect in any bill or writ, excepting an appeal of felony or murder, or misdemeanor. this is to prevent delays of justice. justices of the peace may correct defects of form on appeals to them. plaintiffs neglecting to go to trial after an issue has been joined may be nonsuited. the qualification for jury service is having land with an income over rents of at least 20 pounds, with leases for 500 years or more, or 99 years, or any term determinable on one or more lives. being a freeholder is not necessary. in london, the qualification is being a householder and having lands to the value of 100 pounds. no sheriff may excuse a qualified person from jury service for money or other reward. selection of jurors for each case is to be done by some impartial person pulling their names from a box. later, persons refusing jury service could be fined. poor persons may be paid up to 6d. to give evidence against felons. pirates may not be tried again for the same crime or for a certain crime and high treason. when the marine force was raised, the marines were also given protection from double jeopardy. in chancery, a plaintiff filed a complaint and interrogatories prepared by counsel. only in chancery could there be discovery, such as interrogatories [written questions]. court officials asked the questions of witnesses without the presence of the parties or their lawyers. officials wrote down the answers in their own terms so there was no cross-examination possible. most decrees took many years to be made. the ordinary administrative court of first instance is that of one or two justices of the peace who issued orders in matters of public safety, public order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, fire, begging, and vagrancy. they examined suspicious persons and issued warrants for the removal of any person likely to become a public charge. the justice of the peace also regulated wages, servants, apprentices, and day laborers. in his judicial capacity, he tried all crimes and felonies except treason, though in practice death penalty cases were transferred to the assize justices. the justices of the peace of a hundred hold special sessions such as for appointment of parochial officers, highway disputes, and the grant of wine, beer, and spirit licenses. the appointment of overseers of the poor, authorization of parish rates, and reading of the riot act to mobs to disperse them, required more than one of the justices of the peace of the hundred to participate. all the justices of the peace of the county met four times a year at quarter sessions to hear appeals from penal sentences, to determine the county rate of tax, to appoint treasurers of the county and governors of the county prison and house of correction, to issue regulations on prices of provisions and on wages, to settle fees of the county officials, to grant licenses for powder-mills and other industries, to hear nuisance complaints such as those against parishes failing to keep their roads in repair, to make regulations for the holding of markets, to hear complaints concerning local government, and to register dissenting chapels. in more and more matters specified by statute, the quarter sessions heard appeals from the orders of individual justices of the peace instead of common law courts hearing them by writ of certiorari. the writ of certiorari allowed administrative decisions to be reviewed by the common law courts for compliance with law, competency of the court, and interpretation of the administrative law. the writ of habeas corpus appealed administrative decisions to imprison not only after arrest for criminal proceedings, but any coercive measure for enforcing an administrative order. the writ of mandamus was available for enforcing the injunctions of administrative law against towns, corporations, and all other authorities and private persons, where the ordinary punishments were insufficient. justices of the peace in rural areas were squires and in towns aldermen. in 1747, justices of the peace were authorized to decide issues between masters and mistresses and their employees who were hired for at least one year. if a servant misbehaved, they could authorize reduction of wage, discharge, and hard labor at a house of correction up to one month. if a servant was not paid, he could authorize payment of wages up to 10 pounds for an agricultural servant, and up to 5 pounds for an artificer, handicraftsman, miner, collier, keelman, pitman, glassman, potter, or ordinary laborer. later, tinners and miners were added to the last category. in 1758, employees of less than a year were included. in 1775, justices of the peace were authorized to administer any oath for the purpose of levying penalties. to be a justice of the peace, one must have income of 100 pounds a year from a freehold, copyhold, or customary estate that is for life or for a term of at least 21 years, or be entitled to a reversion of lands leased for 1 or 2 or 3 lives, or for any term of years determinable on the death of 1 or 2 or 3 lives. excepted were peers, justices, and heads of colleges or vice chancellors at the universities. the justices of the peace were selected by the superintending sheriffs and lords lieutenant, the latter of whom were usually peer with a ministers' office or a high court official. no attorney or solicitor or proctor could be a justice of the peace unless the locality had justices of the peace by charter. a request for certiorari for removal of convictions, judgments, orders made by justices of the peace must be made within six months and after notice to the justice of the peace who may argue cause against granting certiorari. in the common law courts, trespass in ejectment served the purposes of most of the actions involving land. assumpsit covered the whole province of debt, and much more. trover more than covered the old province of detinue. trespass still served for all cases in which the defendant had been guilty of directly applying force to the plaintiff's body, goods or chattels. trespass on the case covered miscellaneous torts. replevin was still used. covenant remained in use for the enforcement of promises under seal. account gradually came under the equity jurisdiction of chancery. common law writs of dower are largely superseded by the relief given to the doweress in the courts of equity, where new and valuable rights were given to her and to her personal representatives against the heir and his representatives. the actions of indebitatus assumpsit is being extended to actions upon quasi-contract, in which the element of contract is not required e.g. quantum meruit, where a contract is implied from the facts of the case. mercantile law was developed by the common law courts, especially the king's bench. the king was to appoint the marshal of the king's bench. the marshal was to select his inferior officers to hold office as long as they "behave themselves well within". these offices had been sold by james i to a certain person, his heirs, and assigns. the marshal was to keep the prison of this court in good repair from his fees and profits of office. the office of sheriff was now an accessory department of the common law courts for summons, executions, summoning the jury, and carrying out the sentence of the law. summons for excise offenses may be left at a person's abode, workhouse, or shop as well as on his person. the coroner's office now investigated unusual deaths with a jury from the neighborhood elected by county freeholders. the last beheading was of a scottish lord in 1747; he had been involved in an attempt to restore the stuarts to the throne. so many people came that some overcrowded bleachers fell down and crushed about 20 spectators. henceforth, every sentence of death was by hanging, even for peers. in 1772, the process of pressing a man to death, if he refused to plead to an indictment was abolished. instead, persons accused or indicted, in great britain or america, of felony or piracy who stand mute shall be convicted of such charge. property of a felon was still forfeited to the crown. >from 1749 on were established special procedures for speedy decisions in local courts in some areas for debts or damages under 40s. and imprisonment for such was limited for up to three months. otherwise, sentences were longer, and debts grew during the time in prison. when prisons were overcrowded, parliament let the inmates out if they gave up their possessions. they could go to georgia. in 1763, the homes of john wilkes and others were searched for a seditious and treasonous published paper and all related papers because they had been rumored to have some relationship to the conception, writing, publication, or distribution of the paper. wilkes had such papers and was convicted of libel. he countersued for damages due to criminal trespass. the court held that general search warrants were subversive of the liberty of the subject of the search in violation of the british constitution, declared the statute void, and found for wilkes. the court of common pleas agreed on appeal and put the burden of proof on the persons searching to justify the search warrant. his decision gave support to william pitt's assertion that "every man's home is his castle". there were felons' prisons and debtors' prisons. sometimes they were one and the same. there was much fighting among inmates. the inmates slept on hay if lucky. there were no washing facilities and little light. counties or friends paid for their bread. they were also sold beer, which made them drunk and riotous. the sale of beer was a recognized and legitimate source of profit to the keeper. this was remedied by statute of 1760 that no sheriff or other officer may take an arrested person to a tavern or other public house or charge him for any wine, beer, ale, victuals, tobacco or other liquor without his consent and shall allow prisoners to be brought beer, ale, victuals, bedding, and linen as the prisoner sees fit. sheriffs often kept people imprisoned unless and until they paid all their fees due to the sheriff. in 1772 was founded the society for the discharge and relief of persons imprisoned for small debts for those inmates unfortunate instead of fraudulent or extravagant. legacies were often made to debtors. there was much gaol distemper fever with fatal consequences. when john howard, a grocer who had inherited wealth, but poor health, became a sheriff, he visited many gaols. when he saw the squalid conditions there, he advocated hygienic practices. in 1774, justices of the peace were authorized to order walls and ceilings of gaols to be scraped and washed, ventilators for supplies of fresh air, a separate room for the sick prisoners, commodious bathing tubs, provision of clothes for prisoners, keeping of prisoners not below the ground, and apothecaries at a stated salary to attend and to report the state of health of prisoners. in 1773, clergymen were employed in gaols to alleviate the distress of prisoners and to contribute to morality and religion. also, no longer may any fees be taken by gaol keepers or sheriffs because persons not indicted or found not guilty have been kept in prison pending payment of such fees. instead, the counties shall pay to gaol keepers up to 13s.4d. per prisoner so discharged. colonials acts which infringed upon the english common or statutory law, or were against the interests of other american colonies were submitted to the privy council, which allowed or disallowed them. appeals from the colonial courts came to the privy council. judges in the colonies were appointed by royal governors and paid by colonial legislatures. they served at the pleasure of the king. colonial courts included superior courts of judicature, courts of assize, general gaol delivery, general sessions of the peace, inferior court of common pleas, and commissions of oyer and terminer. there were also justices of the peace, marshals, provosts, and attorney generals. there were few cases of vagrancy, theft, or homicide. this may have been because the people were few and dependent on each other, and economic opportunities were great. in 1735 john peter zenger, printer of the new york weekly journal, was tried for seditious libel for its criticisms and satire of the new york governor, who exceeded his powers, such as by demanding that bills from the assembly be presented to him before the council, and by arbitrarily displacing judges. seditious libel was defined as "false, scandalous, and seditious" writings. traditionally, this word "false" could mean "disloyal". the prosecution argued that truth of such criticism was an aggravation of the crime because it was more provoking of sedition, as found by star chamber cases. the defense argued for a right publicly to remonstrate abuses of power by public officials to guard against violence and destruction of liberties by men in authority. the american jurors, who were supposed to be familiar with the facts pertinent to the case, knew the truth of the paper's criticisms. they agreed with the defense that the word "false" in the definition: "false, scandalous, and seditious" writings, to mean "untrue" instead of "disloyal". so truth became a defense to seditious libel. pamphletts describing the zenger trial and acquittal were published and republished in london and the colonies. benefit of clergy was available in the american colonies to all who could read and write. it could be used in trials for manslaughter. chapter 19: epilogue in the time period after 1776, there developed the fuel-saving kitchen range with closed-in-fire between oven and hot-water tank, hot and cold running water, the use of flushing toilets, edmund cartwright's power weaving machine, samuel crompton's mule for spinning many threads by waterpower in 1779, james watt's steam engine with steam pushing the piston both ways as well as rotary motion and used in many kinds of factories instead of water power, henry bessimer's inexpensive low carbon steel in 1856, iron and steel bridges and ships, drilling and use of oil and natural gas as fuel, adam smith's "wealth of nations" opining that competition of the market could distribute resources best, thomas paine's "rights of man", free trade, democracy, popular elections, secret ballots, universal suffrage, civil service without patronage, mary wollstonecraft's "vindication of the rights of women", university education for women (university of london), policemen (in london in 1829), clipper ships (the final development of sailing before steam), percussion caps on guns, periodic chart of chemical elements, college degrees in biology, chemistry, and physics, geology, maxwell's theory of electromagnetism, albert einstein's theory of relativity, quantum theory, laws of thermodynamics that the energy of the universe is a constant amount but entropy always increases, computers, decoding of the dna sequence, charles darwin's evolution, joseph lister's disinfectant in 1867, edward jenner's smallpox vaccine, louis pasteur's germ theory of disease, anesthetics, aspirin, insulin, penicillin, antibiotics, surgery to replace body parts, tampon, contraceptive pill, discovery of planet uranus by observation and thence of neptune and pluto by calculation from discrepancies in uranus' orbit, hubble space telescope, big bang theory, buses (horse-drawn from 1829 with 18 passengers), subways, trains (1804), public railway (1825, goods drawn by engine and passengers by horse), steam ships, steel ships, aircraft carriers, submarines, tanks, friction matches, chewing gum, pajamas, gas street lamps, traffic lights and signs, ambulances, concrete and asphalt highways, census in 1801, children's playgrounds, knee length dresses, chemical artificial fertilizers, substitution of steel for iron, trade unions, digital watches, wrist watches, compact disks, intelligence tests, personality tests, wool-combing machine, statistical analysis, bell curves, standard deviations, united nations, carpet sweeper, vacuum cleaner, central heating, apartment high rises, business skyscrapers, electricity, electric lights, sewing machines, water closets in richer houses (after 1778), cholera epidemics, sewers for waste disposal, industrial revolution factories, labor strikes, cars, tractors, charles dickens, ice boxes and refrigerators, telephones, central heating with radiators, hot water heaters by gas, gas ovens, humidifiers, canned food, fourpronged forks, suits of matching jackets and trousers, zippers, velcro, wall-to-wall carpeting, popular elections, airplanes, photography, record players, frozen food; cast iron kitchen range for cooking, baking, and boiling; radio, television, plastics, submarines, economics, multinational corporations, weather forecasting, braille, airplanes, space ship to moon, factory assembly lines, washing machines, dishwashers, sewing machine, microwave ovens, copier machines, dna evidence, nuclear bomb and nuclear energy, guided missiles, quartz watches, bicycles, artificial insemination and invitro fertilization, investment advice, retirement planning, amusement parks, catalogue buying, labor contracts, childrens' summer camps, teenage culture, synthetic materials, typewriters, cardboard boxes, marketing studies, factory assembly line, gene-mapping, animal cloning, internet, hiking and camping trips, world travel vacations, telegraph, word processing, gas, oil, research, credit cards, dental floss, camcorders, mass production, nursing homes, cameras, copy machines, wheelchairs, hospital operations, artificial limbs, organ transplants, pharmacies, public circulating libraries, children's playgrounds, cosmetic surgery, physical exercising equipment, vitamin pills, sports clubs, condominiums, molecules, chromosomes, observatories, radar, sonar, nutrition, supermarkets, disability insurance, liability insurance, chemical fertilizers, ddt, record players, video tape recorders, retirement homes, movies;, planned obsolescence, box-spring mattresses, brain scans, x-rays, organized professional sports, dry cleaners, foreign embassies, psychiatry, veterinarians, drug abuse, wage garnishment, tractors, lawnmowers, breeding zoos, world wars, nuclear deterrence, fingerprinting, forensic evidence, toxic waste, acid rain, elevators, picture windows, sewing machines, automation, cybernetics, pizza delivery, health insurance, walt disney, satellite transmission, radiocarbon dating, ice cream, air conditioning, ball point pens, school blackboards, bullets in 1890s, electronic mail, first law of thermodynamics: the conservation of energy, the second law of thermodynamics: potential energy turns into high-temperature thermal energy and finally into low-temperature thermal energy, but these processes are not reversible. the science of philology, on the meaning and history of words began the concept of a natural development of languages which conflicted with the theological view that god had created all the different languages when he punished man for trying to build an edifice to heaven by destroying the tower of babel and dispersing the people into all parts of the world with different languages derived from the original: hebrew, so that they could not communicate with each other. the science of geology developed the concept of tremendous changes in the earth's surface which altered horizontal layers of deposits, in which there were fossils, which challenged the biblical notion of a world and all its animals created in a week. in 1784, lord henry cavendish proved that the sole result of mixing hydrogen with oxygen was water, thus disproving the theory of the four elements of air, earth, fire, and water. in the united states, there was no king, a separation of the executive, the legislative, and the judicial; a separation of church and state, and no aristocratic titles. in this time period the development of law includes abandonment of common law crimes such as seditious libel in the united states, negligence and duty of due care in the united states replacing the english strict liability for torts, substitution of the caveat emptor doctrine for the english sound price doctrine in contract law in the united states, truth as a defense to charge of libel in the united states, repeal in england of seven year requirement for apprentices in 1814, married women's property acts beginning 1839: (1. right to sue and be sued, 2. right to her own earnings, 3. right to own real and personal property, 4. right to make contracts 5. right to stay in family homestead with children, right to custody of children if husband abandons her), divorce in england by courts in 1857, in united states extension of grounds for divorce beyond adultery, bigamy, and desertion to cruel treatment, habitual drunkenness, and conviction of a felony and finally no-fault divorce, decline of father's paramount claim to the custody of his minor children in the absence of a strong showing of misconduct or unfitness, tender years doctrine (in england in 1839 mother to have custody of child under seven and to have access over seven) and then best interests of child doctrine in custody disputes, legal obligation for parents to support their minor children, adoption about the 1850s; in england allowance of women attorneys in 1922, women to vote in 1928, adultery by a husband to be adjudged as culpable as adultery by a wife in 1923, the rights of a mother over her child to be equal to those of a father in 1924, and the rights of a woman to property to be the same as those of a man in 1926; child labor laws, full religious freedom with admission of nonconformists to the two universities in england in 1871, probable cause instead of suspicion for search and seizure, mandamus, rule against perpetuities, mandatory secondary education, kidnapping, false impersonation, liens, obscenity, estoppel for detrimental reliance on a promise, unjust enrichment, pensions, trademarks and unfair competition, antitrust, privacy, freedom of thought, freedom of speech, freedom of the press, bankruptcy, civil rights, union organizing laws, laws on discrimination due to race, sex, ethnic or national origin, disability, age, and sexual preference; sexual harassment and stalking laws, product liability, international law, environmental laws protecting air and water quality, workers compensation, unemployment compensation, controlled substances, intellectual property law; and contingency fees only in the united states, in england, there was an end of trial by combat in 1819, of compurgation in 1833, and of benefit of clergy. in 1820, there were 160 offenses in england with the death penalty, including stealing from a dwelling house to the value of 40s., stealing from a shop to a value of 5s., and stealing anything privily from the person. the penalty for treason was still drawing and quartering. it was a privilege of the peerage to be immune from any punishment upon a first conviction of felony. as of 1823, church courts could no longer decide cases of perjury; as of 1855, no cases of defamation, but only church matters. hearsay rules and exceptions were developed in the 1800s. in 1816, jurors were to have no knowledge except the evidence accepted at court. in 1837, counsel for a person indicted for high treason could examine and crossexamine witnesses. in 1839, a defendant could see the written record of evidence against him. in 1898, the accused was allowed to give evidence. pleaders do not have to specify the form of action relied on, but rather give facts which give rise to a cause of action. judicial procedure includes grand juries, which hear evidence, court transcript by court stenographers, discovery, depositions, and presumption of innocence (after salem witch trials in the united states). the united states changed judicial procedure in several respects: parties were allowed to testify, writ pleading was abandoned, and prisons were used for reforming prisoners. debtors prisons were abolished. also, the law was seen not as divinely inspired eternal law to be found by judges, but law made by man to suit the times. state judges served for life during good behavior; they could be removed by the procedure of impeachment. in some states, judges were elected. there were privileges on testimony such as attorney-client, priest-confessor, and husbandwife. appendix: sovereigns of england accession name 871 alfred the great 899 edward the elder son of alfred 924 aethelstan son of edward the elder 939 edmund son of edward the elder 946 eadred son of edward the elder 955 eadwig son of edmund 959 edgar son of edmund 975 edward the martyr son of edgar 978 aethelred the unready son of edgar 1016 edmund ironside son of aethelred the unready 1016 canute 1035 harold i harefoot son of canute 1040 hardicanute son of canute 1042 edward the confessor son of aethelred the unready 1066 harold ii 1066 william i, the conquerer 1087 william ii son of william i 1100 henry i (and matilda) son of william i 1135 stephen 1154 henry ii (and eleanor) grandson of henry i 1189 richard i, the lion-hearted son of henry ii 1199 john son of henry ii 1216 henry iii son of john 1272 edward i (and eleanor) son of henry iii 1307 edward ii son of edward i 1327 edward iii son of edward ii 1377 richard ii grandson of edward iii 1399 henry iv 1413 henry v son of henry iv 1422 henry vi son of henry v 1461 edward iv 1483 edward v son of edward iv 1483 richard iii 1485 henry vii (and elizabeth) 1509 henry viii son of henry vii 1547 edward vi son of henry viii 1553 mary daughter of henry viii 1558 elizabeth i daughter of henry viii 1603 james i 1625 charles i son of james i 1649 oliver cromwell 1660 charles ii son of charles i 1685 james ii son of charles i 1689 william and mary 1694 william iii 1702 anne granddaughter of james ii 1714 george i 1727 george ii son of george i 1760 george iii son of george 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england in the age of hogarth, derek jarrett, 1974 137. the first four georges, j.h. plumb, 1956 138. the review of american colonial legislation by the king in council, elmer russell, 1915 139. select pleas of the crown, f.w. maitland, 1888 140. select pleas in manorial and other seignorial courts, f.w. maitland, 1889 141. the forms of action at common law, f.w. maitland, 1909 142. equity, f.w. maitland 143. the story of the declaration of independence, ira g. corn, jr., 1977 144. internet medieval sourcebook 145. out of the fiery furnace video, robert raymond 146. a history of chemistry, charles reichen, 1963 147. seven ideas that shook the universe, nathan spielberg, 1987 148. a history of the warfare of science with theology in christendom, andrew white, 1955 149. american political and social history, harold faulkner, 1941 150. essays in science, albert einstein, 1934 151. the character of physical law, richard feynman, 1965 152. dictionary of national biography, george smith, 1882 153. elizabeth i: collected works, ed. leah marcus et al, 2000 154. the crime of galileo, giorgio de santillana, 1955 155. from copernicus to einstein, hans reichenbach, 1942 156. the horizon book of the elizabethan world, ed. richard ketchum, 1967 157. tower of london, christopher hibbert, 1971 158. tudor royal proclamations, ed. p.l. hughes & j.f. larkin, 1964 159. selected historical essays of f.w.maitland, ed. helen cam, 1957 160. lloyd's of london, raymond flower & michael jones, 1974 161. weather, philip thompson etc., 1965 162. constitutional history of england, william stubbs, 1891 163. hillforts of england and wales, james dyer, 1981 164. the last two million years, reader's digest association, 1973 165. london: the civic spirit, robert goldston, 1969 166. domestic life in england, norah lofts, 1976 167. descartes, tom sorell, 1987 168. life in the english country house, mark girouard, 1978 169. extraordinary origins of everyday things, charles panati, 1987 170. god's peace and king's peace: the laws of edward the confessor, bruce o'brien, 1999 171. the bill of rights, irving brant, 1965 172. issac newton, adventurer in thought; a. rupert hall, 1992 173. the life of issac newton, richard s. westfall, 1993 174. a history of the circle, ernest zebrowski, 1999 175. the world of water, j. gordon cook, 1957 176. the western intellectual tradition, j. bronowski & mazlish, 1960 177. human accomplishment, charles murray, 2003 178. magic, myth and medicine, d.t.atkinson, m.d., 1956 179. scientists who changed the world, lynn and gray poole, 1960 180. the new treasury of science, ed. harlow shapley, etc., 1965 181. food in history, reay tannahill, 1973 182. home, a short history of an idea, witold rybczynski, 1986 183. pelican history of england: 1. roman britain, i.a. richmond, 1955 2. the beginnings of english society, dorothy whitelock, 1952 3. english society in the early middle ages, doris stenton, 1951 4. england in the late middle ages, a.r. myers, 1952 5. tudor england, s.t. bindoff, 1950 6. england in the seventeenth century, maurice ashley, 1952 the end index abbey; abbot, abbess; abduction; accessory; account; administrator; admiralty; adultery; adverse possession; adulterated; advowson; aethelbert; aethelred; affidavit; agreement; agriculture; augustine. st.; aids; alderman; ale; alehouses; alfred; alienate; aliens; allegiance; alms; amerce; america; anabaptist; ancient; anglo-saxons; anglo-saxon chronicles; annulment; apothecaries; apparel laws; appeal; appellate; apprentices; appurtance; archbishop; architect; aristotle; arkwright, richard; arraign; arson; arthur; articles of religion; artificer; artisan; assault; assay; assign; assize; assizes; assumpsit; astrology; at pleasure; atheism; attainder; attaint; attorneys; babies; bachelor; bachelor of arts; back-berend; bacon, francis; bacon, roger; bacteriology; bail; bailiff; baker; ballads; bank of england; bankruptcy; baptist; bar; barber; barber-surgeon; bargain and sale; barons; baron court; barristers; bastard; bath; battery; beadle; beating; becket; beer; beggar; benefit of clergy; benevolence; beowulf; bequeath, bequest; bible; bigamy; bill; bill of attainder; bill of exchange; bill of rights; billet; birmingham; bishops; black death; blackstone, william; blinding; blodwite; blood-letting; book of common prayer; bordars; borough; boston; bot; boyle, robert; bracton, henry de; brass; brawling; breach; breach of the peace; bread; brewster; bribery; brick; bridge; bristol; brokers; bullock, case of; burgess; burglary; burh; burial; burning; butcher; butler; calais; calvin; cambridge university; canals; cannon; capitalism; carbon dioxide; carpenter; carriages; carucage; carver; castle; castle-guard; cathedral; catholics; cattle; cavaliers; cecil, william; censorship; ceorl; certiorari; challenge; champerty; chancellor; chancery; chancery court; charter; chattel; chaucer, geoffrey; chemistry; chevage; chief justice; chief justiciars; child; child abuse; children; childwyte; christian; chivalry; christmas; church; church of england; church sanctuary; cicero; circuit; citizen; city; civil; civil courts; civil war; claim; clans; class; clergy; clerics; cloth-maker; coaches; coal; coffee houses; coin; coke, edward; college of physicians and surgeons; colonies; commission; common land; common law; commons, house of; commonwealth; compurgation; compurgator; confession; congregationalists; conqueror; consideration; constable; constitution; contract; conventile; conveyance; conviction; cooper; copernicus; copper; copyhold; copyrights; cordwainer; coronation charter; coroner; corporation; corruption of the blood; council; counterfeit; county; county courts; courtesy; court of common pleas; court of high commission; court of king's bench; courtesy; court martial; covenant; coverture; coventry; craft; craft guild; cranmer, thomas; creditor; crime; criminal; cromwell, oliver; cromwell, thomas; crown; cupbearer; curfew; currier; custody; customary tenant; customs; damages; danegeld; danes; darrein presentment; daughter; death; death penalty; debt, debtors; deceased; decree; deed; deer; defamation; defendant; demesne; denizen; deodand; descendant; descartes, renee; desertion; detinue; devise; dispensary; disseisin; dissenter; distraint; distress; divorce; doctorate; dog; doomsday book; doublet; dower; dowery; drake, francis; drover; drunkenness; duel; during good behavior; duties; dwelling; dyers; earl; east india company; easter; ecclesiastic; edith; education; eleanor, wife of edward i; eleanor, wife of henry ii; election; electricity; elizabeth, wife of henry vii; embroiderer; enclosure; english; engrose; episcopal church; equity; equity court; erasmus; escape from gaol; escheat, escheator; escuage; esquire; established church; estate; estate administration; estate tail; euclid; exchequer; excommunication; excise tax; executor; export; extent; eyre; factory; fair; father; fealty; fee; fee simple; fee tail; felony; feme covert; feme sole; feoff; fermat, pierre; feudal; feudal tenures; fihtwite; fine; fire; fire-fighters; fishermen, fishmonger; flint; flogging; flying shuttle; folkmote; food riots; footmen; forced loans; forced marriage; forestall; forest charter; forestall; forests; forfeit; forgery; forms of action; fornication; fortifications; foster-lean; france; frank-almoin; franklin, benjamin; frankpledge; fraternity; fraud; freedom of speech; freehold, freeholder; freeman; freemason; freewoman; friar; frith guild; fuller; fustian; fyrd; fyrdwite; gage; galilei, galileo; gambling; games; gaols; gaol distemper; gawaine; gentleman; gentry; geology; georgia; german, christopher st., gift; gilbert, william; guildhall; guilds; gin; glanvill; glass; glorious revolution; gloves; god; godfather; gold; goldsmiths; good parliament; goods; government; grain; grammar schools; grand assize; grand jury; grand tour; grants; grave; gravitation; greek; gresham, thomas; grithbrice; guardian, guardianship; guenevere; hair; hall; halley, edmond; hamsocne; hand-habbende; harboring; harrington, james; harvard college; health; heir; heresy; heriot; hidage; hide; high commission court; hilda; hillforts; holidays, holydays; homage; homicide; hooke, robert; horse; horse racing; hospitals; house-breaking; house-holder; house of commons; house of lords; houses; houses of correction; hue and cry; humanism, humors; hundred rolls; huygens, christian; hundred; hundred courts; hunt; husband; hustings court; hut; illegitimacy; illness; illuminators; impeach; import; imprisonment; incest; income tax; independents; indenture; indictment; industry; infangthef; inflation; inheritance; innkeeper; inns of court; inoculation; inquest; insurance; interest; interrogatory; intestate; iron; itinerant; jail; jesus; jews; joan of arc; joint tenants; joint-stock companies; jointure; jones, inigo; journeyman; judge; jurisdiction; jurors; jury; justice; justices in eyre; justices of assize; justices of the peace; justiciar; kent county; keplar, johannes; kill; kin, kindred; king; king alfred the great; king charles i; king charles ii; king edward i; king edward the confessor; king george iii; king henry i; king henry ii; king henry vii; king henry viii; king james i; king james ii; king john; king richard the lion-hearted; king william and mary; king william i, the conqueror; king's peace; knight; knight's fee; knights' guild; knitting; laborer; ladies; land; landlord; land-owner; larceny; lastage; latin; law merchant; lawsuit; lawyer; laxton; lay; leap year; lease; leather; leet court; legacy; legislation; legitimacy; leibniz, christian; leicester; letters; libel; liberi quadripartitus; library; license; life; life-estate; lighthouse; limb; linen; lion of justice; literacy; literature; littleton, thomas; livery; lloyds; locke, john; london; long parliament; longitude; lord; lords, house of; loriner; lottery; loyalty; machine; magistrates; magna carta; magnate; maiden; mail; majic; malicious prosecution; maintenance; manchester; manor; manor courts; manufacturing; manumission; marco polo; market; marriage; marriage agreement; marriage portion; marshall; marquise; massachusetts; master of arts; masters; matilda; mayflower; mayor; maypole; mead; measures; meat; medicine; melee; member; merchandise; merchant; merchant adventurers; merchant guilds; merchet; merciless parliament; mercy; merton; mesne; methodists; microscope; middlesex; midwives; military service; militia; miller; minister; minor; minstrels; miskenning; moat; model parliament; monarchy; monasteries; money; moneyer; monks; monopoly; moot; more, thomas; morgen-gift; morning gift; mort d'ancestor; mortgage; mortmain; mother; murder; mutilation; napier, john; navy; newcastleon-tyne; new england; new model army; newspapers; newton, issac; new world; nobility; noblemen, nobles; nonconformists; normans; novel disseisin; nuisance; nun; oakham, william; oaths; offender; oil; one hundred year war; open field system; ordeal; ordinance; orphans; outlaw; oxford university; oxygen; papists; parent; parishes; parliament; parliament of saints; partition; party; pascal, blaise; passport; patents; pauper; pawn; peasant's revolt; peers; peine forte et dure; penalty; penitentiary; penn, william; pennsylvania; penny; per stirpes; perjury; personal injury; personal property; petit serjeanty; petition; petition of right; physicians; piers plowman; pigherds; pilgrim; pillory; pipe rolls; piracy; pirate; plague; plaintiff; plato; plays; pleading; pleas; police; pontage; poor; pope; popery; population; port; portreeve; portsoken ward; posse; possess; postal system; post mortem; pottery; praecipe in capite; pressing; presbyterians; prescription; presentment; priest; printing; prison; privy council; privy seal; probable cause; probate; proclamation; promise under seal; promissory note; property; prosecutor; prostitutes; protectorate; protestants; puritans; purveyance; putting out system; quakers; quaranteen, quarter sessions; queen; queen elizabeth i; queen mary; queen's bench; quo warranto; rack; ralegh, walter; rape; ray, john; real action; recognition; reeve; reformation; regrate; release; relief; religion; remainder; renaissance; rent; replevin; residence; restoration; reversion; revolt; reward; rights; riot; riot act; roads; robbery; robin hood; roemer, olaus; roman law; root and branch petition; roundheads; royal court; royal navy; royal society; royalists; rump parliament; russia; sacrament; sacrifice; sailor; sake and soke; sale; salt; saltworks; sanctuary; sandwich; saxon; scaetts; scavage; scholar; school; science; scolds; scot; scrofula; scutage; seal; seamen; searchers; search warrant; sedition, seditious; seisin; selfdefense; self-help; separatists; serf; serjeanty; servant; service; servitude; settlement; sewer; shakespeare, william; shaving; sheep; shelley's case; sheriff; sheriff's turn; shillings; ships; shipwreck; shire; shire courts; shire-gemot; shoemaker; short parliament; shrine; sickness; silver; slade's case; slander; slave; slingshot; smallpox; smith; smithfield; socage; sokemen; soldiers; solicitor; son; spanish armada; speedy pursuit; spinning; spinning jenny; spinning wheel; spinsters; spouse; st. augustine; st. germain; st. lazarus; st. paul's church; statute of laborers; squire; staple; star chamber court; strangers; steam; steel; stengesdint; stevinus; steward; stock-and-land lease; stocking-frame knitters; stocks; stolen goods; stone; stonehenge; straw; streets; subtenants; successor; sue; suit; summary; summon; sunday; supporters of the bill of rights society; surety; surgery; surname; swearing; swords; tale; tallage; tanner; tavern; tax; tea; team; ten commandments; tenancies; tenancy, tenant; tenants in common; tenement; tenure; term; testament; thames, river; theft; thegn; theodore; theology; theow; thermometer; thirty years' war; tile; tiler; tin; title; tolls; tories; torricelli, evangelista; tort; torture; tournament; tower hill; tower of london; town; town-reeve; trades, tradesmen; transportation; treason, high and petit; treasure trove; treasury; trespass; trespass on the case; trial by combat (battle); trover; turnpike; twelve; tyne; umbrella, unitarians; university; usury; use-trust; vagrants, vagrancy; vassal; verderer; verdict; vessels; vikings; vill; villages; villeinage; villeins; vintner; virginia; wall; wallis, john; war of the roses; ward, wardship; wardmoot; wardrobe; warrantor, warranty; waste; water; watermen; watermill; waterwheel; watt, james; wealthy; weapon; weaving, weavers; webs; wed; wedding; weights; weir; well; wer, wergeld; wesley, john; westminster; whigs; whipping; white tower; whitsuntide; widows; wife; wife-beating; wills; winchester; windmills; window tax; wine; witch; witchcraft; wite; witan; witanagemot; witnesses; wives; wolsey, thomas; wyclif, john; woman-covert; women; wool; wounding; writs; writs of assistance; writs of error; year books; yeomanry, yeomen note: this is an updated edition of pg#13376. copyright (c) 2004 s. a. reilly our legal heritage king aethelbert king george iii, 1776 600 a.d. 1776 by s. a. reilly, attorney 175 e. delaware place chicago, illinois 60611-7715 s-reilly@att.net copyright (c) 2004 preface this book was written to appreciate what laws have been in existence for a long time and therefore have proven their success in maintaining a stable society. its purpose is also to see the historical context in which our legal doctrines developed. it includes the inception of the common law system, which was praised because it made law which was not handed down by an absolutist king; the origin of the jury system; the meaning of the magna carta provisions in their historical context; and the emergence of attorneys. this book is a primer. one may read it without prior knowledge of history or law, although it will be more meaningful to attorneys than to others. it can serve as an introduction on which to base further reading in english legal history. it defines terms unique to english legal history. however, the meaning of some terms in king aethelbert's code in chapter 1 are unknown or inexact. in the table of contents, the title of each chapter denotes an important legal development in the given time period for that chapter. each chapter is divided into three sections: the times, the law, and judicial procedure. the times section sets a background and context in which to better understand the law of that period. the usual subject matter of history such as battles, wars, royal intrigues, periods of corruption, and international relations are omitted as not helping to understand the process of civilization and development of the law. standard practices are described, but there are often variations with locality. also, change did not come abruptly, but with vacillations, e.g. the change from pagan to christian belief and the change to allowance of loans for interest. the scientific revolution was accepted only slowly. there were often many attempts made for change before it actually occurred, e.g. gaining parliamentary power over the king's privileges, such as taxation. the law section describes the law governing the behavior and conduct of the populace. it includes law of that time which is the same, similar, or a building block to the law of today. in earlier times this is both statutory law and the common law of the courts. the magna carta, which is quoted in chapter 7, is the first statute of england and is listed first in the "statutes of the realm" and the "statutes at large". the law sections of chapters 7 18 mainly quote or paraphrase almost all of these statutes. excluded are statutes which do not help us understand the development of our law, such as statutes governing wales after its conquest and statutes on succession rights to the throne. the judicial procedure section describes the process of applying the law and trying cases, and jurisdictions. it also contains some examples of cases. for easy comparison, amounts of money expressed in pounds or marks [danish denomination] have often been converted to the smaller denominations of shillings and pence. there are twenty shillings in a pound. a mark in silver is two-thirds of a pound. shillings are abbreviated: "s." there are twelve pennies or pence in a norman shilling. pence are abbreviated "d." six shillings and two pence is denoted 6s.2d. a scaett was a coin of silver and copper of lesser denomination than a shilling. there were no coins of the denomination of shilling during anglo-saxon times. the sources and reference books from which information was obtained are listed in a bibliography instead of being contained in tedious footnotes. there is no index to pages because the electronic text will print out its pages differently on different computers with different computer settings. instead, a word search may be done on the electronic text. dedication and acknowledgements a vassar college faculty member once dedicated her book to her students, but for whom it would have been written much earlier. this book "our legal heritage" is dedicated to the faculty of vassar college, without whom it would never have been written. much appreciation goes to professor james curtin of loyola law school for his review and comments on this book's medieval period: chapters 4-10, and especially his comment that "i learned quite a bit about life in those days from your work." thanks go to loyola university law school professor george anastaplo for introducing me to professor curtin. much appreciation goes to professor lacey baldwin smith of northwestern university's history department for his review and comments on this book's tudor and stuart periods: chapters 11-17, especially his comment that he learned a lot. thanks go to northwestern university law school professor steven presser for introducing me to professor smith. finally, many thanks go to fellow mensan william wedgeworth for proof-reading the entire book. table of contents chapters: 1. tort law as the first written law: to 600 2. oaths and perjury: 600-900 3. marriage law: 900-1066 4. martial "law": 1066-1100 5. criminal law and prosecution: 1100-1154 6. common law for all freemen: 1154-1215 7. magna carta: the first statute: 1215-1272 8. land law: 1272-1348 9. legislating the economy: 1348-1399 10. equity from chancery court: 1399-1485 11. use-trust of land: 1485-1509 12. wills and testaments of lands and goods: 1509-1558 13. consideration and contract law: 1558-1601 14. welfare for the poor: 1601-1625 15. independence of the courts: 1625-1642 16. freedom of religion: 1642-1660 17. habeas corpus: 1660-1702 18. service of process instead of arrest: 1702-1776 19. epilogue: 1776-2000 appendix: sovereigns of england bibliography chapter 1 the times: before 600 a.d. the settlement of england goes back thousands of years. at first, people hunted and gathered their food. they wore animal skins over their bodies for warmth and around their feet for protection when walking. these skins were sewn together with bone needles and threads made from animal sinews. they carried small items by hooking them onto their belts. they used bone and stone tools, e.g. for preparing skins. their uncombed hair was held by thistlethorns, animal spines, or straight bone hair pins. they wore conical hats of bound rush and lived in rush shelters. early clans, headed by kings, lived in huts on top of hills or other high places and fortified by circular or contour earth ditches and banks behind which they could gather for protection. they were probably dug with antler picks and wood spades. the people lived in rectangular huts with four wood posts supporting a roof. the walls were made of saplings, and a mixture of mud and straw. cooking was in a clay oven inside or over an open fire on the outside. water was carried in animal skins or leather pouches from springs lower on the hill up to the settlement. forests abounded with wolves, bears, deer, wild boars, and wild cattle. they could more easily be seen from the hill tops. pathways extended through this camp of huts and for many miles beyond. for wives, men married women of their clan or bought or captured other women, perhaps with the help of a best man. they carried their unwilling wives over the thresholds of their huts, which were sometimes in places kept secret from her family. the first month of marriage was called the honeymoon because the couple was given mead, a drink with fermented honey and herbs, for the first month of their marriage. a wife wore a gold wedding band on the ring finger of her left hand to show that she was married. women usually stayed at home caring for children, preparing meals, and making baskets. they also made wool felt and spun and wove wool into a coarse cloth. flax was grown and woven into a coarse linen cloth. spinning the strands into one continuous thread was done on a stick, which the woman could carry about and spin at anytime when her hands were free. the weaving was done on an upright or warp-weighted loom. people of means draped the cloth around their bodies and fastened it with a metal brooch inlayed with gold, gems, and shell, which were glued on with glue that was obtained from melting animal hooves. people drank from hollowedout animal horns, which they could carry from belts. they could tie things with rawhide strips or rope braids they made. kings drank from animal horns decorated with gold or from cups of amber, shale, or pure gold. men and women wore pendants and necklaces of colorful stones, shells, amber beads, bones, and deer teeth. they skinned and cut animals with hand-axes and knives made of flint dug up from pits and formed by hitting flakes off. the speared fish with barbed bone prongs or wrapped bait around a flint, bone, or shell fish hook. on the coast, they made bone harpoons for deep-sea fish. the flint ax was used to shape wood and bone and was just strong enough to fell a tree, although the process was very slow. the king, who was tall and strong, led his men in hunting groups to kill deer and other wild animals in the forests and to fish in the streams. some men brought their hunting dogs on leashes to follow scent trails to the animal. the men threw stones and spears with flint points at the animals. they used wood clubs to beat them, at the same time using wood shields to protect their bodies. they watched the phases of the moon and learned to predict when it would be full and give the most light for night hunting. this began the concept of a month. circles of stone like stonehenge were built with alignments to paths of the moon. if hunting groups from two clans tried to follow the same deer, there might be a fight between the clans or a blood feud. after the battle, the clan would bring back its dead and wounded. a priest officiated over a funeral for a dead man. his wife would often also go on the funeral pyre with him. the priest also officiated over sacrifices of humans, who were usually offenders found guilty of transgressions. sacrifices were usually made in time of war or pestilence, and usually before the winter made food scarce. the clan ate deer that had been cooked on a spit over a fire, and fruits and vegetables which had been gathered by the women. they drank water from springs. in the spring, food was plentiful. there were eggs of different colors in nests and many hare to eat. the goddess easter was celebrated at this time. later, there was farming and domestication of animals such as horses, pigs, sheep, goats, chicken, and cattle. of these, the pig was the most important meat supply, being killed and salted for winter use. next in importance were the cattle. sheep were kept primarily for their wool. flocks and herds were taken to pastures. the male cattle, with wood yokes, pulled ploughs in the fields of barley and wheat. the female goat and cow provided milk, butter, and cheese. the chickens provided eggs. the hoe, spade, and grinding stone were used. thread was spun with a hand-held spindle which one hand held while the other hand alternately formed the thread from a mass and then wound it around the spindle. a coarse cloth was woven and worn as a tunic which had been cut from the cloth. kings wore tunics decorated with sheet gold. decorated pottery was made from clay and used to hold liquids and for food preparation and consumption. during the period of "lent" [from the word "lencten", which means spring], it was forbidden to eat any meat or fish. this was the season in which many animals were born and grew to maturity. wood carts with four wheels were used to transport produce and manure. horses were used for transportation of people or goods. wood dug-out boats and paddles were used to fish on rivers or on the seacoast. clans had settlements near rivers. each settlement had a meadow, for the mowing of hay, and a simple mill, with round timber huts, covered with branches or thatch or turf supported by a ring of posts. inside was a hearth with smoke going up through a hole in the roof, and a cauldron for cooking food. there was an upright loom in the darkness. the floor was swept clean. at the door were spears or bags of slingstones ready for immediate use. the king lived in the largest hut. gullies outside carried off excess water. each hut had a garden for fruit and vegetables. a goat or cow might be tied out of reach of the garden. there was a fence or hedge surrounding and protecting the garden area and dwelling. buckets and cauldrons which had originated from the mediterranean were used. querns with the top circular stone turned by hand over the bottom stone were used for grinding grain. there were ovens to dry and roast grain. grain was first eaten as a porridge or cereal. there were square wood granaries on stilts and wood racks on which to dry hay. grain was stored in concealed pits in the earth which were lined with drystone or basket work or clay and made airtight by sealing with clay or dung. old pits were converted into waste dumps, burials, or latrines. outside the fence were an acre or two of fields of wheat and barley, and sometimes oats and rye. wheat and rye were sown in the fall, and oats and barley in the spring. sowing was by men or two oxen drawing a simple scratch plough. the crops were all harvested in the summer. in this two-field system, land was held by peasants in units designed to support a single extended family. these fields were usually enclosed with a hedge to keep animals from eating the crop and to define the territory of the settlement from that of its neighbors. flax was grown and made into linen cloth. beyond the fields were pastures for cattle and sheep grazing. there was often an area for beehives. this was subsistence level farming. pottery was given symmetry when formed with use of a wheel and heated in increasingly hot kilns. from kilns used for pottery, it was noticed that lumps of gold or copper ore within would melt and assume the shape of what they had been resting on. these were the first metals, and could be beaten into various shapes, such as ornaments. then the liquid ore was poured into moulds carved out of stones to make axes [small pointed tool for piercing holes in leather, wood, or other soft materials] and daggers, which were reheated and hammered to become strong. copper-tipped drills, chisels, punches and awls were also made. the bodies of deceased were buried far away from any village in wood coffins, except for kings, who were placed in large stone coffins after being wrapped in linen. buried with them were a few personal items, such as copper daggers, flat copper axes, and awls. the deceased was buried in a coffin with a stone on top deep in the earth to keep the spirit of the dead from coming out to haunt the living. it was learned that tin added to the copper made a stronger metal: bronze. stone hammers, and bronze and iron tools, were used to make cooking pots, weapons, breast plates, and horse bits, which were formed from moulds and/or forged by bronze smiths and blacksmiths from iron extracted from iron ore heated in bowlshaped hearths. typically one man operated the bellows to keep the fire hot while another did the hammering. bronze was made into sickles for harvesting, razors for shaving, tweezers, straight hair pins, safety pins for clothes, armlets, neck-rings, and mirrors. weapons included bows and arrows, flint and copper daggers, bronze swords and spears, stone axes, and shields of wood with bronze mountings. the bows and arrows probably evolved from spear throwing rods. kings in body armor fought with chariots drawn by two horses. the horse harnesses had bronze fittings. the chariots had wood wheels, later with iron rims. when bronze came into use, there was a demand for its constituent parts: copper and tin, which were traded by rafts on waterways and the sea. when iron came into use, there were wrought iron axes, saws, adzes [ax with curved blade used to dress wood], files, ploughshares, harrows [set of spikes to break clods of earth on ploughed land and also to cover seed when sewn], scythes, billhooks [thick knife with hooked point used to prune shrubs], and spits for hearths. lead was mined. there was some glassmaking of beads. wrought iron bars were used as currency. hillforts now had wooden palisades on top of their banks to protect the enclosed farmsteads and villages from stock wandering off or being taken by rustlers, and from attacks by wild animals or other people. later a rampart was added from which sentries could patrol. these were supported by timber and/or stone structures. timbers were probably transported by carts or dragged by oxen. at the entrances were several openings only one of which really allowed entry. the others went between banks into dead ends and served as traps in which to kill the enemy from above. gates were of wood, some hung from hinges on posts which could be locked. later guard chambers were added, some with space for hearths and beds. sometimes further concentric circles of banks and ditches, and perhaps a second rampart, were added around these forts. they could reach to 14 acres. the ramparts are sufficiently widely spaced to make sling-shotting out from them highly effective, but to minimize the dangers from sling-shotting from without. the additional banks and ditches could be used to create cattle corridors or to protect against spear-thrown firebrands. however, few forts had springs of water within them, indicating that attacks on them were probably expected to be short. attacks usually began with warriors bristling with weapons and blowing war trumpets shouting insults to the foe, while their kings dashed about in chariots. sometimes champions from each side fought in single combat. they took the heads of those they killed to hang from their belts or place on wood spikes at the gates. prisoners, including women and children, might become slaves. kings sometimes lived in separate palisades where they kept their horses and chariots. circles of big stones like stonehenge were rebuilt so that the sun's position with respect to the stones would indicate the day of longest sunlight and the day of shortest sunlight. between these days there was an optimum time to harvest the crops before fall, when plants dried up and leaves fell from the trees. the winter solstice, when the days began to get longer was cause for celebration. in the next season, there was an optimum time to plant seeds so they could spring up from the ground as new growth. so farming gave rise to the concept of a year. certain changes of the year were celebrated, such as easter, named for the goddess of the dawn, which occurred in the east (after lent); may day celebrating the revival of life; lammas around july, when the wheat crop was ready for harvesting; and on october 31 the celtic eve of samhain, when the spirits of the dead came back to visit homes and demand food or else cast an evil spell on the refusing homes; and at which masked and costumed inhabitants representing the souls of the dead paraded to the outskirts of the settlements to lead the ghosts away from their homes; and at which animals and humans, who might be deemed to be possessed by spirits, were sacrificed or killed perhaps as examples, in huge bonfires [bonefires] as those assembled looked out for spirits and evil beings. there was an agricultural revolution from the two-field system in which one field was fallow to the three-field system, in which there were three large fields for the heavy and fertile land. each field was divided into long and narrow strips. each strip represented a day's work with the plough. one field had wheat, or perhaps rye, another had barley, oats, beans, or peas, and the third was fallow. it had been observed that legumes such as peas and beans restored the soil. these were rotated yearly. there was a newly invented plough that was heavy and made of wood and later had an attached iron blade. the plough had a mould-board which caught the soil stirred by the plough blade and threw it into a ridge alongside the furrow dug by the plough blade. this plough was too heavy for two oxen and was pulled by a team of about eight to ten oxen. each ox was owned by a different man as was the plough, because no one peasant could afford the complete set. each freeman was allotted certain strips in each field to bear crops. his strips were far from each other, which insured some very fertile and some only fair soil, and some land near his village dwelling and some far away. these strips he cultivated, sowed with seed, and harvested for himself and his family. after the harvest, they reverted to common ownership for grazing by pigs, sheep, and geese. as soon as haymaking was over, the meadows became common grazing land for horses, cows, and oxen. not just any inhabitant, but usually only those who owned a piece of land in the parish were entitled to graze their animals on the common land, and each owner had this right of pasture for a definite number of animals. the faster horse replaced the ox as the primary work animal. other farm implements were: coulters, which gave free passage to the plough by cutting weeds and turf, picks, spades and shovels, reaping hooks and scythes, and sledge hammers and anvils. strips of land for agriculture were added from waste land as the community grew. waste lands were moors bristling with brushwood, or gorse, heather and wanton weeds, reed-coated marshes, quaking peat-bogs, or woods grown haphazard on sand or rock. with iron axes, forests could be cleared to provide more arable land. some villages had a smith, a wheelwright, and a cooper. there were villages which had one or two market days in each week. cattle, sheep, pigs, poultry, calves, and hare were sold there. london was a town on the thames river under the protection of the celtic river god lud: lud's town. it's huts were probably built over the water, as was celtic custom. it was a port for foreign trade. near the town was ludhill. each celtic tribe in england made its own coinage. silver and bronze were first used, and then gold. the metal was put into a round form and then placed between two engraved dies, which were hit. flint workers mined with deer antler picks and ox shoulder blade shovels for flint to grind into axes, spearheads, and arrowheads. mine shafts were up to thirty feet deep and necessitated the use of chalk lamps fueled by animal fat with wicks of moss. the flint was hauled up in baskets. common men and women were now buried in tombs within memorial burial mounds of earth with stone entrances and interior chambers. a man's weapons and shield were buried with him and a woman's spindle and weaving baton, and perhaps beads or pottery with her. at times, mounds of earth would simply be covered over piles of corpses and ashes in urns. in these mass graves, some corpses had spear holes or sword cuts, indicating death by violence. the druid priests, the learned class of the celts, taught the celts to believe in reincarnation of the soul after death of one body into another body. they also threw prized possessions into lakes and rivers as sacrifices to water gods. they placed images of gods and goddesses in shrines, which were sometimes large enough to be temples. they thought of their gods as supernatural magicians. with the ability to grow food and the acquisition of land by conquest by invading groups, the population grew. there were different classes of men. the freemen were eorls [noble freemen] or ceorls [ordinary free farmers]. slaves were not free. freemen had long hair and beards. slaves' hair was shorn from their heads so that they were bald. slaves were chained and often traded. prisoners taken in battle, especially native britons taken by invading groups, became slaves. a slave who was captured or purchased was a "theow". an "esne" was a slave who worked for hire. a "weallas" was a welsh slave. criminals became slaves of the person wronged or of the king. sometimes a father pressed by need sold his children or his wife into bondage. debtors, who increased in number during famine, which occurred regularly, became slaves by giving up the freeman's sword and spear, picking up a slave's mattock [pick ax for the soils], and placing their head within a lord's or lady's hands. they were called witetheows. the original meaning of the word lord was "loaf-giver". children with a slave parent were slaves. the slaves lived in huts around the homes of big landholders, which were made of logs and consisted on one large room or hall. an open hearth was in the middle of the earthen floor of the hall, which was strewn with rushes. there was a hole in the roof to let out the smoke. here the landholder and his men would eat meat, bread, salt, hot spiced ale, and mead while listening to minstrels sing about the heroic deeds of their ancestors. richer men drank wine. there were festivals which lasted several days, in which warriors feasted, drank, gambled, boasted, and slept where they fell. physical strength and endurance in adversity were admired traits. slaves often were used as grain grinders, ploughmen, sowers, haywards, woodwards, shepherds, goatherds, swineherds, oxherds, cowherds, dairymaids, and barnmen. slaves had no legal rights. a lord could kill his slave at will. a wrong done to a slave was regarded as done to his owner. if a person killed another man's slave, he had to compensate him with the slave's purchase price. the slave owner had to answer for the offenses of his slaves against others, as for the mischief done by his cattle. since a slave had no property, he could not be fined for crimes, but was whipped, mutilated, or killed. during famine, acorns, beans, peas, and even bark were ground down to supplement flour when grain stocks grew low. people scoured the hedgerows for herbs, roots, nettles, and wild grasses, which were usually left for the pigs. sometimes people were driven to infanticide or group suicide by jumping together off a cliff or into the water. several large kingdoms came to replace the many small ones. the people were worshipping pagan gods when st. augustine came to england in 596 a.d. to christianize them. king aethelbert of kent [much later a county] and his wife, who had been raised christian on the continent, met him when he arrived. the king gave him land where there were ruins of an old city. augustine used stones from the ruins to build a church which was later called canterbury. he also built the first st. paul's church in london. aethelbert and his men who fought with him and ate and lived in his household [gesiths] became christian. a succession of princesses went out from kent to marry other saxon kings and convert them to christianity. augustine knew how to write, but king aethelbert did not. the king announced his laws at meetings of his people and his eorls would decide the punishments. there was a fine of 120s. for disregarding a command of the king. he and augustine decided to write down some of these laws, which now included the king's new law concerning the church. these laws concern personal injury, killing, theft, burglary, marriage, adultery, and inheritance. the blood feud's private revenge for killing had been replaced by payment of compensation to the dead man's kindred. one paid a man's "wergeld" [worth] to his kindred for causing his wrongful death. the wergeld [wer] of a king was an unpayable amount of about 7000s., of an aetheling [a king-worthy man of the extended royal family] was 1500s., of an eorl, 300s., of a ceorl, 100s., of a laet [agricultural worker in kent, which class was between free and slave], 40-80s., and of a slave nothing. at this time a shilling could buy a cow in kent or a sheep elsewhere. if a ceorl killed an eorl, he paid three times as much as an eorl would have paid as murderer. the penalty for slander was tearing out of the tongue. if an aetheling was guilty of this offense, his tongue was worth five times that of a coerl, so he had to pay proportionately more to ransom it. the crimes of murder, treachery to one's own lord, arson, house breaking, and open theft, were punishable by death and forfeiture of all property. the law "these are the dooms [decrees] which king aethelberht established in the days of augustine 1. [theft of] the property of god and of the church [shall be compensated], twelve fold; a bishop's property, eleven fold; a priest's property, nine fold; a deacon's property, six fold; a cleric's property, three fold; church frith [breach of the peace of the church; right of sanctuary and protection given to those within its precincts], two fold [that of ordinary breach of the public peace]; m......frith [breach of the peace of a meeting place], two fold. 2. if the king calls his leod [his people] to him, and any one there do them evil, [let him compensate with] a twofold bot [damages for the injury], and 50 shillings to the king. 3. if the king drink at any one's home, and any one there do any lyswe [evil deed], let him make twofold bot. 4. if a freeman steal from the king, let him repay nine fold. 5. if a man slay another in the king's tun [enclosed dwelling premises], let him make bot with 50 shillings. 6. if any one slay a freeman, 50 shillings to the king, as drihtin beah [payment to a lord in compensation for killing his freeman]. 7. if the king's ambiht smith [smith or carpenter] or laad rine [man who walks before the king or guide or escort], slay a man, let him pay a half leod geld. 8. [offenses against anyone or anyplace under] the king's mund byrd [protection or patronage], 50 shillings 9. if a freeman steal from a freeman, let him make threefold bot; and let the king have the wite [fine] and all the chattels [necessary to pay the fine]. (chattels was a variant of "cattle".) 10. if a man lie with the king's maiden [female servant], let him pay a bot of 50 shillings. 11. if she be a grinding slave, let him pay a bot of 25 shillings.the third [class of servant] 12 shillings. 12. let the king's fed esl [woman who serves him food or nurse] be paid for with 20 shillings. 13. if a man slay another in an eorl's tun [premises], let [him] make bot with 12 shillings. 14. if a man lie with an eorl's birele [female cupbearer], let him make bot with 12 shillings. 15. [offenses against a person or place under] a ceorl's mund byrd [protection], 6 shillings. 16. if a man lie with a ceorl's birele [female cupbearer], let him make bot with 6 shillings; with a slave of the second [class], 50 scaetts; with one of the third, 30 scaetts. 17. if any one be the first to invade a man's tun [premises], let him make bot with 6 shillings; let him who follows, with 3 shillings; after, each, a shilling. 18. if a man furnish weapons to another where there is a quarrel, though no injury results, let him make bot with 6 shillings. 19. if a weg reaf [highway robbery] be done [with weapons furnished by another], let him [the man who provided the weapons] make bot with 6 shillings. 20. if the man be slain, let him [the man who provided the weapons] make bot with 20 shillings. 21. if a [free] man slay another, let him make bot with a half leod geld [wergeld for manslaughter] of 100 shillings. 22. if a man slay another, at the open grave let him pay 20 shillings, and pay the whole leod within 40 days. 23. if the slayer departs from the land, let his kindred pay a half leod. 24. if any one bind a freeman, let him make bot with 20 shillings. 25. if any one slay a ceorl's hlaf aeta [loaf or bread eater; domestic or menial servant], let him make bot with 6 shillings. 26. if [anyone] slay a laet of the highest class, let him pay 80 shillings; of the second class, let him pay 60 shillings; of the third class, let him pay 40 shillings. 27. if a freeman commit edor breach [breaking through the fenced enclosure and forcibly entering a ceorl's dwelling], let him make bot with 6 shillings. 28. if any one take property from a dwelling, let him pay a threefold bot. 29. if a freeman goes with hostile intent through an edor [the fence enclosing a dwelling], let him make bot with 4 shillings. 30. if [in so doing] a man slay another, let him pay with his own money, and with any sound property whatever. 31. if a freeman lie with a freeman's wife, let him pay for it with his wer geld, and obtain another wife with his own money, and bring her to the other [man's dwelling]. 32. if any one thrusts through the riht ham scyld [legal means of protecting one's home], let him adequately compensate. 33. if there be feax fang [seizing someone by the hair], let there be 50 sceatts for bot. 34. if there be an exposure of the bone, let bot be made with 3 shillings. 35. if there be an injury to the bone, let bot be made with 4 shillings. 36. if the outer hion [outer membrane covering the brain] be broken, let bot be made with 10 shillings. 37. if it be both [outer and inner membranes covering the brain], let bot be made with 20 shillings. 38. if a shoulder be lamed, let bot be made with 30 shillings. 39. if an ear be struck off, let bot be made with 12 shillings. 40. if the other ear hear not, let bot be made with 25 shillings. 41. if an ear be pierced, let bot be made with 3 shillings. 42. if an ear be mutilated, let bot be made with 6 shillings. 43. if an eye be [struck] out, let bot be made with 50 shillings. 44. if the mouth or an eye be injured, let bot be made with 12 shillings. 45. if the nose be pierced, let bot be made with 9 shillings. 46. if it be one ala, let bot be made with 3 shillings. 47. if both be pierced, let bot be made with 6 shillings. 48. if the nose be otherwise mutilated, for each [cut, let] bot be made with 6 shillings. 49. if it be pierced, let bot be made with 6 shillings. 50. let him who breaks the jaw bone pay for it with 20 shillings. 51. for each of the four front teeth, 6 shillings; for the tooth which stands next to them 4 shillings; for that which stands next to that, 3 shillings; and then afterwards, for each a shilling. 52. if the speech be injured, 12 shillings. if the collar bone be broken, let bot be made with 6 shillings. 53. let him who stabs [another] through an arm, make bot with 6 shillings. if an arm be broken, let him make bot with 6 shillings. 54. if a thumb be struck off, 20 shillings. if a thumb nail be off, let bot be made with 3 shillings. if the shooting [fore] finger be struck off, let bot be made with 8 shillings. if the middle finger be struck off, let bot be made with 4 shillings. if the gold [ring] finger be struck off, let bot be made with 6 shillings. if the little finger be struck off, let bot be made with 11 shillings. 55. for every nail, a shilling. 56. for the smallest disfigurement of the face, 3 shillings; and for the greater, 6 shillings. 57. if any one strike another with his fist on the nose, 3 shillings. 58. if there be a bruise [on the nose], a shilling; if he receive a right hand bruise [from protecting his face with his arm], let him [the striker] pay a shilling. 59. if the bruise [on the arm] be black in a part not covered by the clothes, let bot be made with 30 scaetts. 60. if it be covered by the clothes, let bot for each be made with 20 scaetts. 61. if the belly be wounded, let bot be made with 12 shillings; if it be pierced through, let bot be made with 20 shillings. 62. if any one be gegemed [pregnant], let bot be made with 30 shillings. 63. if any one be cear wund [badly wounded], let bot be made with 3 shillings. 64. if any one destroy [another's] organ of generation [penis], let him pay him with 3 leod gelds: if he pierce it through, let him make bot with 6 shillings; if it be pierced within, let him make bot with 6 shillings. 65. if a thigh be broken, let bot be made with 12 shillings; if the man become halt [lame], then friends must arbitrate. 66. if a rib be broken, let bot be made with 3 shillings. 67. if [the skin of] a thigh be pierced through, for each stab 6 shillings; if [the wound be] above an inch [deep], a shilling; for two inches, 2; above three, 3 shillings. 68. if a sinew be wounded, let bot be made with 3 shillings. 69. if a foot be cut off, let 50 shillings be paid. 70. if a great toe be cut off, let 10 shillings be paid. 71. for each of the other toes, let one half that for the corresponding finger be paid. 72. if the nail of a great toe be cut off, 30 scaetts for bot; for each of the others, make bot with 10 scaetts. 73. if a freewoman loc bore [with long hair] commit any leswe [evil deed], let her make a bot of 30 shillings. 74. let maiden bot [compensation for injury to an unmarried woman] be as that of a freeman. 75. for [breach of] the mund [protection] of a widow of the best class, of an eorl's degree, let the bot be 50 shillings; of the second, 20 shillings; of the third, 12 shillings; of the fourth, 6 shillings. 76. if a man carry off a widow not under his own protection by right, let the mund be twofold. 77. if a man buy a maiden with cattle, let the bargain stand, if it be without fraud; but if there be fraud, let him bring her home again, and let his property be restored to him. 78. if she bear a live child, she shall have half the property, if the husband die first. 79. if she wish to go away with her children, she shall have half the property. 80. if the husband wish to keep them [the children], [she shall have the same portion] as one child. 81. if she bear no child, her paternal kindred shall have the fioh [her money and chattels] and the morgen gyfe [morning gift: a gift made to the bride by her husband on the morning following the consummation of the marriage]. 82. if a man carry off a maiden by force, let him pay 50 shillings to the owner, and afterwards buy [the object of] his will from the owner. 83. if she be betrothed to another man in money [at a bride price], let him [who carried her off] make bot with 20 shillings. 84. if she become gaengang [pregnant], 35 shillings; and 15 shillings to the king. 85. if a man lie with an esne's wife, her husband still living, let him make twofold bot. 86. if one esne slay another unoffending, let him pay for him at his full worth. 87. if an esne's eye and foot be struck out or off, let him be paid for at his full worth. 88. if any one bind another man's esne, let him make bot with 6 shillings. 89. let [compensation for] weg reaf [highway robbery] of a theow [slave] be 3 shillings. 90. if a theow steal, let him make twofold bot [twice the value of the stolen goods]." judicial procedure the king and his freemen would hear and decide cases of wrongful behavior such as breach of the peace. punishment would be given to the offender by the community. there were occasional meetings of "hundreds", which were 100 households, to settle widespread disputes. the chief officer was "hundreder" or "constable". he was responsible for keeping the peace of the hundred. the druid priests decided all disputes of the celts. chapter 2 the times: 600-900 the country was inhabited by anglo-saxons. the french called it "angleterre", which means the angle or end of the earth. it was called "angle land", which later became "england". a community was usually an extended family. its members lived a village in which a stone church was the most prominent building. they lived in one-room huts with walls and roofs made of wood, mud, and straw. hangings covered the cracks in the walls to keep the wind out. smoke from a fire in the middle of the room filtered out of cracks in the roof. grain was ground at home by rotating by hand one stone disk on another stone disk. some villages had a mill powered by the flow of water or by horses. all freeholders had the duty of watch [at night] and ward [during the day], of following the hue and cry to chase an offender, and of taking the oath of peace. these three duties were constant until 1195. farmland surrounded the villages and was farmed by the community as a whole under the direction of a lord. there was silver, copper, iron, tin, gold, and various types of stones from remote lead mines and quarries in the nation. silver pennies replaced the smaller scaetts. freemen paid "scot" and bore "lot" according to their means for local purposes. offa, the strongest of the saxon kings, minted high-quality silver pennies. he traded woolen coats for lava grindstones with emperor charlemagne, who used a silver denarius coin. there were 12 denarii to the solidus and 20 soldi to the pound of silver. these denominations were taken by england as 12 pennies to the shilling and 20 shillings to the pound. the pound sign, an "l" with a hash mark derived from the word libra, which meant weighing scales. everyone in the village went to church on sunday and brought gifts such as grain to the priest. later, contributions in the form of money became customary, and then expected. they were called "tithes" and were spent for church repair, the clergy, and poor and needy laborers. local custom determined the amount. there was also church-scot: a payment to the clergy in lieu of the first fruits of the land. the priest was the chaplain of a landlord and his parish was coextensive with that landlord's holding and could include one to several villages. the priest and other men who helped him, lived in the church building. some churches had lead roofs and iron hinges, latches, and locks on their doors. the land underneath had been given to the church by former kings and persons who wanted the church to say prayers to help their souls go from purgatory to heaven and who also selected the first priest. the priest conducted christianized easter ceremonies in the spring and (christ's mass) ceremonies in winter in place of the pagan yuletide festivities. burning incense took the place of pagan burnt animal offerings, which were accompanied by incense to disguise the odor of burning flesh. holy water replaced haunted wells and streams. christian incantations replaced sorcerer's spells. nuns assisted priests in celebrating mass and administering the sacraments. they alone consecrated new nuns. vestry meetings were community meetings held for church purposes. the people said their prayers in english, and the priest conducted the services in english. a person joined his hands in prayer as if to offer them for binding together in submission. the church baptized babies and officiated or gave blessings at marriage ceremonies. it also said prayers for the dying, gave them funerals, and buried them. there were burial service fees, candle dues, and plough alms. a piece of stone with the dead person's name marked his grave. it was thought that putting the name on the grave would assist identification of that person for being taken to heaven. the church heard the last wish or will of the person dying concerning who he wanted to have his property. the church taught that it was not necessary to bury possessions with the deceased. the church taught boys and girls. man carried a horn slung on his shoulder as he went about his work so that he could at once send out a warning to his fellow villagers or call them in chasing a thief or other offender. the forests were full of outlaws, so strangers who did not blow a horn to announce themselves were presumed to be fugitive offenders who could be shot on sight. an eorl could call upon the ceorl farmers for about forty days to fight off an invading group. there were several kingdoms, whose boundaries kept changing due to warfare, which was a sin according to the church. they were each governed by a king and witan of wise men who met at a witanegemot, which was usually held three times a year, mostly on great church festivals and at the end of the harvest. the king and witan chose the witan's members of bishops, eorldormen, and thegns [landholding farmers]. the king and hereditary claims played a major part in the selection of the eorldormen, who were the highest military leaders and often of the royal family. they were also chief magistrates of large jurisdictional areas of land. the witan included officers of the king's household and perhaps other of his retinue. there was little distinction then between his gesith, fighting men, guards, household companions, dependents, and servants. the king was sometimes accompanied by his wife and sons at the witanagemot. a king was selected by the witan according to his worthiness, usually from among the royal family, and could be deposed by it. the witan and king decided on laws, taxes, and transfers of land. they made determinations of war and peace and directed the army and the fleet. the king wore a crown or royal helmet. he extended certain protections by the king's peace. he could erect castles and bridges and could provide a special protection to strangers. a king had not only a wergeld to be paid to his family if he were killed, but a "cynebot" of equal amount that would be paid to his kingdom's people. a king's household had a chamberlain for the royal bedchamber, a marshall to oversee the horses and military equipment, a steward as head of household, and a cupbearer. the king had income from fines for breach of his peace; fines and forfeitures from courts dealing with criminal and civil cases; salvage from ship wrecks; treasure trove [assets hidden or buried in times of war]; treasures of the earth such as gold and silver; mines; saltworks; tolls and other dues of markets, ports, and the routes by land and by river generally; heriot from heirs of his special dependents for possession of land (usually in kind, principally in horses and weapons). he also had rights of purveyance [hospitality and maintenance when traveling]. the king had private lands, which he could dispose of by his will. he also had crown lands, which belonged to his office and could not be alienated without consent of the witan. crown lands often included palaces and their appendant farms, and burhs. it was a queen's duty to run the royal estate. also, a queen could possess, manage, and dispose of lands in her name. violent queens waged wars. kingdoms were often allied by marriage between their royal families. there were also royal marriages to royalty on the continent. the houses of the wealthy had ornamented silk hangings on the walls. some had fine white ox horn shaved so thin they were transparent for windows. brightly colored drapery, often purple, and fly nets surrounded their beds, which were covered with the fur of animals. they slept in bed clothes on pillows stuffed with straw. tables plated with silver and gems held silver candlesticks, gold and silver goblets and cups, and lamps of gold, silver, or glass. they used silver mirrors and silver writing pens. there were covered seats, benches, and footstools with the head and feet of animals at their extremities. they ate from a table covered with a cloth. servants brought in food on spits, from which they ate. food was boiled, broiled, or baked. the wealthy ate wheat bread and others ate barley bread. ale made from barley was passed around in a cup. mead made from honey was also drunk. men wore long-sleeved wool and linen garments reaching almost to the knee, around which they wore a belt tied in a knot. men often wore a gold ring on the fourth finger of the right hand. leather shoes were fastened with leather thongs around the ankle. their hair was parted in the middle and combed down each side in waving ringlets. the beard was parted in the middle of the chin, so that it ended in two points. the clergy did not wear beards. great men wore gold-embroidered clothes, gilt buckles and brooches, and drank from drinking horns mounted in silver gilt or in gold. wellto-do women wore brightly colored robes with waist bands, headbands, necklaces, gem bracelets, and rings. their long hair was in ringlets and they put rouge on their cheeks. they had beads, pins, needles, tweezers of bronze, and workboxes of bronze, some highly ornamented. they were often doing needlework. silk was affordable only by the wealthy. most families kept a pig and pork was the primary meat. there were also sheep, goats, cows, deer, hare, and fowl. fowl was obtained by fowlers who trapped them. the inland waters yielded eels, salmon, and trout. in the fall, meat was salted to preserve it for winter meals. there were orchards growing figs, nuts, grapes, almonds, pears, and apples. also produced were beans, lentils, onions, eggs, cheese, and butter. pepper and cinnamon were imported. fishing from the sea yielded herrings, sturgeon, porpoise, oysters, crabs, and other fish. sometimes a whale was driven into an inlet by a group of boats. whale skins were used to make ropes. the roads were not much more than trails. they were often so narrow that two pack horses could hardly pass each other. the pack horses each carried two bales or two baskets slung over their backs, which balanced each other. the soft soil was compacted into a deep ditch which rains, floods, and tides, if near the sea, soon turned into a river. traveling a far distance was unsafe as there were robbers on the roads. traveling strangers were distrusted. it was usual to wash one's feet in a hot tub after traveling and to dry them with a rough wool cloth. there were superstitions about the content of dreams, the events of the moon, and the flights and voices of birds were often seen as signs or omens of future events. herbal mixtures were drunk for sickness and maladies. from the witch hazel plant was made a mild alcoholic astringent, which was probably used to clean cuts and sooth abrasions. in the peaceful latter part of the 600s, theodore, who had been a monk in rome, was appointed archbishop and visited all the island speaking about the right rule of life and ordaining bishops to oversee the priests. each kingdom was split up into dioceses each with one bishop. thereafter, bishops were selected by the king and his witan, usually after consulting the clergy and even the people of the diocese. the bishops came to be the most permanent element of society. they had their sees in villages or rural monasteries. the bishops came to have the same wergeld as an eorldorman: 1200s., which was the price of about 500 oxen. a priest had the wergeld as a landholding farmer [thegn], or 300s. the bishops spoke latin, but the priests of the local parishes spoke english. theodore was the first archbishop whom all the english church obeyed. he taught sacred and secular literature, the books of holy writ, ecclesiastical poetry, astronomy, arithmetic, and sacred music. theodore discouraged slavery by denying christian burial to the kidnapper and forbidding the sale of children over the age of seven. a slave became entitled to two loaves a day and to his holydays. a slave was allowed to buy his or his children's freedom. in 673, theodore started annual national ecclesiastical assemblies, for instance for the witnessing of important actions. the bishops, some abbots, the king, and the eorldormen were usually present. from them the people learned the benefit of common national action. there were two archbishops: one of canterbury in the south and one of york in the north. they governed the bishops and could meet with them to issue canons that would be equally valid all over the land. a bishop's house contained some clerks, priests, monks, and nun and was a retreat for the weary missionary and a school for the young. the bishop had a deacon who acted as a secretary and companion in travel, and sometimes as an interpreter. ink was made from the outer husks of walnuts steeped in vinegar. the learned ecclesiastical life flourished in monastic communities, in which both monks and nuns lived. hilda, a noble's daughter, became the first nun in northumbria and abbess of one of its monasteries. there she taught justice, piety, chastity, peace, and charity. several monks taught there later became bishops. kings and princes often asked her advice. many abbesses came to run monastic communities; they were from royal families. women, especially from royal families, fled to monasteries to obtain shelter from unwanted marriage or to avoid their husbands. kings and eorldormen retired to them. danish vikings made several invasions in the 800s for which a danegeld tax on land was assessed on everyone every ten to twenty years. the amount was determined by the witan and was typically 2s. per hide of land. (a hide was probably the amount of land which could support a family or household for a year or as much land as could be tilled annually by a single plough.) it was stored in a strong box under the king's bed. king alfred the great, who had lived for awhile in rome, unified the country to defeat the invaders. he established fortifications called "burhs", usually on hill tops or other strategic locations on the borders to control the main road and river routes into his realm. the burhs were seminal towns. they were typically walled enclosures with towers and an outer ditch and mound, instead of the hedge or fence enclosure of a tun. inside were several wooden thatched huts and a couple of churches, which were lit by earthen oil lamps. the populace met at burhgemotes. the land area protected by each burh became known as a "shire", which means a share of a larger whole. the shire or local landowners were responsible for repairing the burh fortifications. there were about thirty shires. alfred gathered together fighting men who were at his disposal, which included eorldormen with their hearthbands (retinues of men each of whom had chosen to swear to fight to the death for their eorldorman, and some of whom were of high rank), the king's thegns, shire thegns (local landholding farmers, who were required to bring fighting equipment such as swords, helmets, chain mail, and horses), and ordinary freemen, i.e. ceorls (who carried food, dug fortifications, and sometimes fought). since the king was compelled to call out the whole population to arms, the distinction between the king's thegns from other landholders disappeared. some great lords organized men under them, whom they provisioned. these vassals took a personal oath to their lord "on condition that he keep me as i am willing to deserve, and fulfill all that was agreed on when i became his man, and chose his will as mine." alfred had a small navy of longships with 60 oars to fight the viking longships. alfred divided his army into two parts so that one half of the men were fighting while the other half was at home sowing and harvesting for those fighting. thus, any small-scale independent farming was supplanted by the open-field system, cultivation of common land, more large private estates headed by a lord, and a more stratified society in which the king and important families more powerful and the peasants more curtailed. the witan became mere witnesses. many free coerls of the older days became bonded. the village community tended to become a large private estate headed by a lord. but the lord does not have the power to encroach upon the rights of common that exist within the community. in 886, a treaty between alfred and the vikings divided the country along the war front and made the wergeld of every free farmer, whether english or viking, 200s. men of higher rank were given a wergeld of 4 1/2 marks of pure gold. a mark was probably a viking denomination and a mark of gold was equal to nine marks of silver in later times and probably in this time. the word "earl" replaced the word "eorldormen" and the word "thegn" replaced the word "aetheling" after the danish settlement. the ironed pleats of viking clothing indicated a high status of the wearer. the vikings brought combs and the practice of regular hair-combing to england. king alfred gave land with jurisdictional powers within its boundaries such as the following: "this is the bequest which king alfred make unequivocally to shaftesbury, to the praise of god and st. mary and all the saints of god, for the benefit of my soul, namely a hundred hides as they stand with their produce and their men, and my daughter aethelgifu to the convent along with the inheritance, since she took the veil on account of bad health; and the jurisdiction to the convent, which i myself possessed, namely obstruction and attacks on a man's house and breach of protection. and the estates which i have granted to the foundation are 40 hides at donhead and compton, 20 hides at handley and gussage 10 hides at tarrant, 15 hides at iwerve and 15 hides at fontmell. the witnesses of this are edward my son and archbishop aethelred and bishop ealhferth and bishop aethelhead and earl wulfhere and earl eadwulf and earl cuthred and abbot tunberht and milred my thegn and aethelwulf and osric and brihtulf and cyma. if anyone alters this, he shall have the curse of god and st. mary and all the saints of god forever to all eternity. amen." sons usually succeeded their fathers on the same land as shown by this lifetime lease: "bishop denewulf and the community at winchester lease to alfred for his lifetime 40 hides of land at alresford, in accordance with the lease which bishop tunbriht had granted to his parents and which had run out, on condition that he renders every year at the autumnal equinox three pounds as rent, and church dues, and the work connected with church dues; and when the need arises, his men shall be ready both for harvesting and hunting; and after his death the property shall pass undisputed to st. peter's. these are the signatures of the councilors and of the members of the community who gave their consent, namely ..." alfred invented a graduated candle with spaces indicating one hour of burning, which could be used as a clock. he used a ventilated cow's horn to put around the top of the candle to prevent its blowing out, and then devised a wooden lantern with a horn window. he described the world as like a yolk in the middle of an egg whose shell moves around it. this agreed with the position of ptolemy claudius of alexandria, who showed the curvature of the earth from north to south by observing that the polar star was higher in the north and lower in the south. that it was curved from east to west followed from the observation that two clocks placed one west and one east would record a different time for the same eclipse of the moon. alfred wrote poems on the worthiness of wisdom and knowledge in preference to material pleasures, pride, and fame, in dealing with life's sorrow and strife. his observations on human nature and his proverbs include: 1. as one sows, so will he mow. 2. every man's doom [judgment] returns to his door. 3. he who will not learn while young, will repent of it when old. 4. weal [prosperity] without wisdom is worthless. 5. though a man had 70 acres sown with red gold, and the gold grew like grass, yet he is not a whit the worthier unless he gain friends for himself. 6. gold is but a stone unless a wise man has it. 7. it's hard to row against the sea flood; so it is against misfortune. 8. he who toils in his youth to win wealth, so that he may enjoy ease in his old age, has well bestowed his toil. 9. many a man loses his soul through silver. 10. wealth may pass away, but wisdom will remain, and no man may perish who has it for his comrade. 11. don't choose a wife for her beauty nor for wealth, but study her disposition. 12. many an apple is bright without and bitter within. 13. don't believe the man of many words. 14. with a few words a wise man can compass much. 15. make friends at market, and at church, with poor and with rich. 16. though one man wielded all the world, and all the joy that dwells therein, he could not therewith keep his life. 17. don't chide with a fool. 18. a fool's bolt is soon shot. 19. if you have a child, teach it men's manners while it is little. if you let him have his own will, he will cause you much sorrow when he comes of age. 20. he who spares the rod and lets a young child rule, shall rue it when the child grows old. 21. either drinking or not drinking is, with wisdom, good. 22. relatives often quarrel together. 23. the barkless dog bites ill. 24. be wise of word and wary of speech, then all shall love you. 25. we may outride, but not outwit, the old man. 26. be not so mad as to tell your friend all your thoughts. 27. if you and your friend fall out, then your enemy will know what your friend knew before. 28. don't choose a deceitful man as a friend, for he will do you harm. 29. the false one will betray you when you least expect it. 30. don't choose a scornful false friend, for he will steal your goods and deny the theft. 31. take to yourself a steadfast man who is wise in word and deed; he will prove a true friend in need. to restore education and religion, alfred disseminated the anglosaxon chronicles; the venerable bede's ecclesiastical history of the english nation; the "consolidation of philosophy" by roman philosopher boethius, which related the use of adversity to develop the soul, and described the goodness of god and how the highest happiness comes from spiritual values and the soul, which are eternal, rather than from material or earthly pursuits, which are temporal; and pope gregory's pastoral care, which he had translated into english and was the fundamental book on the duty of a bishop, which included a duty to teach laymen; and orosius' history of the world, which he had translated into english. alfred's advice to pastors was to live as they had been taught from books and to teach this manner of life to others. to be avoided was pride, the mind's deception of seeking glory in the name of doing good works, and the corruption of high office. bede was england's first scholar, first theologian, and first historian. he wrote poetry, theological books, homilies, and textbooks on grammar, rhetoric [public speaking and debating], arithmetic, and astronomy. he adhered to the doctrine that death entered the world by the sin of adam, the first man. he began the practice of dating years from the birth of christ and believed that the earth was round. over the earth was a fiery spherical firmament. above this were the waters of the heavens. above this were the upper heavens, which contained the angels and was tempered with ice. he declared that comets portend downfalls of kingdoms, pestilence, war, winds, or heat. this reflected the church's view that a comet was a ball of fire flung from the right hand of an angry god as a warning to mankind, usually for disbelief. storms were begun by the devil. a famous poem, the oral legend of beowulf, a hero who led his men into adventures and performed great feats and fought monsters and dragons, was put into writing with a christian theme. in it, loyalty to one's lord is a paramount virtue. also available in writing was the story of king arthur's twelve victorious battles against the pagan saxons, authored by nennius. there were professional story tellers attached to great men. others wandered from court to court, receiving gifts for their story telling. men usually told oral legends of their own feats and those of their ancestors after supper. alfred had monasteries rebuilt with learned and moral men heading them. he built a nunnery which was headed by his daughter as prioress. he built a strong wall with four gates around london, which he had taken into his control. he appointed his son-in-law, who was one of his eorldormen, to be alderman [older man] to govern london and to be the shire's earl. a later king built a palace in london, although winchester was still the royal capital town. when the king traveled, he and his retinue were fed by the local people at their expense. after alfred's death, his daughter aethelflared ruled the country for seven years. she had more fortified burhs built and led soldiers to victories. under the royalty were the nobles. an earl headed each shire as representative of the king. the term "earl" came to denote an office instead of a nobleman. he led the array of his shire to do battle if the shire was attacked. he executed all royal commands. an earl received grants of land and could claim hospitality and maintenance for himself, his officers, and his servants. he presided over the shire court. he received one-third of the fines from the profits of justice and collected as well a third of the revenues derived from tolls and duties levied in the boroughs of his shire. the office tended to be hereditary. royal representatives called "reeves" started to assist them. the reeve took security from every person for the maintenance of the public peace. he also tracked cattle thieves, brought suspects to court, gave judgments according to the doom books, and delivered offenders to punishment. under the earls were the thegns. by service to the king, it was possible for a coerl to rise to become a thegn and to be given land by the king. other thegns performed functions of magistrates. a thegn was later identified as a person with five hides of land, a kitchen, a church, a bell house, a judicial place at the burhgemote [a right of magistracy], and an appointment in the king's hall. he was bound to service in war by virtue of his landholding instead of by his relationship to the king. nobility was now a territorial attribute, rather than one of birth. the wergeld of a thegn was 1200s. when that of a ceorl or ordinary freeman was 200s. the wergeld of an earl or bishop was four times that of a thegn: 5800s. the wergeld of a king or archbishop was six times that of a thegn: 7200s. the higher a man's wergeld, the higher was his legal status in the scale of punishment, giving credible evidence, and participation in legal proceedings. the sokemen were freemen who had inherited their own land, chose their own lord, and attended and were subject to their lord's court. that is, their lord has soke [soc] jurisdiction over them. a ceorl typically had a single hide of land. a smallholder rented land of about 30 acres from a landlord, which he paid by doing work on the lord's demesne [household or messuage] land, paying money rent, or paying a food rent such as in eggs or chickens. smallholders made up about two fifths of the population. a cottager had one to five acres of land and depended on others for his living. among these were shepherds, ploughmen, swineherds, and blacksmiths. they also participated in the agricultural work, especially at harvest time. it was possible for a thegn to become an earl, probably by the possession of forty hides. he might even acquire enough land to qualify him for the witan. women could be present at the witanagemot and shiregemote [meeting of the people of the shire]. they could sue and be sued in the courts. they could independently inherit, possess, and dispose of property. a wife's inheritance was her own and under no control of her husband. marriage required the consent of the lady and her friends. the man also had to arrange for the foster lean, that is, remuneration for rearing and support of expected children. he also declared the amount of money or land he would give the lady for her consent, that is, the morgengift, and what he would bequeath her in case of his death. it was given to her on the morning after the wedding night. the family of the bride was paid a "mund" for transferring the rightful protection they possessed over her to the family of the husband. if the husband died and his kindred did not accept the terms sanctioned by law, her kindred could repurchase the rightful protection. if she remarried within a year of his death, she had to forfeit the morgengift and his nearest kin received the lands and possessions she had. the word for man was "waepnedmenn" or weaponed person. a woman was "wifmenn" or wife person, with "wif" being derived from the word for weaving. great men and monasteries had millers, smiths, carpenters, architects, agriculturists, fishermen, weavers, embroiders, dyers, and illuminators. for entertainment, minstrels sang ballads about heroes or bible stories, harpers played, jesters joked, and tumblers threw and caught balls and knives. there was gambling, dice games, and chasing deer with hounds. fraternal guilds were established for mutual advantage and protection. a guild imposed fines for any injury of one member by another member. it assisted in paying any murder fine imposed on a member. it avenged the murder of a member and abided by the consequences. it buried its members and purchased masses for his soul. mercantile guilds in seaports carried out commercial speculations not possible by the capital of only one person. there were some ale houses, probably part of certain dwellings. the danegeld tax of 1s. and later 2s. upon every hide of land came to be imposed for maintaining forces sufficient to clear the british seas of danish pirates or to buy off the ravages of danish invaders. the law alfred issued a set of laws to cover the whole country, which were drawn from the best laws of each region. there was no real distinction between the concepts of law, morals, and religion. the importance of telling the truth and keeping one's word are expressed by this law: "1. at the first we teach that it is most needful that every man warily keep his oath and his wed. if any one be constrained to either of these wrongfully, either to treason against his lord, or to any unlawful aid; then it is juster to belie than to fulfill. but if he pledge himself to that which is lawful to fulfill, and in that belie himself, let him submissively deliver up his weapon and his goods to the keeping of his friends, and be in prison forty days in a king's tun: let him there suffer whatever the bishop may prescribe to him..." let his kinsmen feed him, if he has no food. if he escapes, let him be held a fugitive and be excommunicate of the church. the word of a bishop and of the king were incontrovertible without an oath. the ten commandments were written down as this law: "the lord spake these words to moses, and thus said: i am the lord thy god. i led thee out of the land of the egyptians, and of their bondage. 1. love thou not other strange gods above me. 2. utter thou not my name idly, for thou shalt not be guiltless towards me if thou utter my name idly. 3. remember that thou hallow the rest day. work for yourselves six days, and on the seventh rest. for in six days, christ wrought the heavens and the earth, the seas, and all creatures that are in them, and rested on the seventh day: and therefore the lord hallowed it. 4. honor thy father and thy mother whom the lord hath given thee,that thou mayst be the longer living on earth. 5. slay thou not. 6. commit thou not adultery. 7. steal thou not. 8. say thou not false witness. 9. covet thou not thy neighbor's goods unjustly. 10. make thou not to thyself golden or silver gods." if any one fights in the king's hall, or draws his weapon, and he be taken; be it in the king's doom, either death, or life, as he may be willing to grant him. if he escape, and be taken again, let him pay for himself according to his wergeld, and make bot for the offense, as well wer as wite, according as he may have wrought. if a man fights before a king's ealdorman in the gemot, let him make bot with wer and wite as it may be right; and before this 120s. to the ealdorman as wite. if he disturbs the folkmote by drawing his weapon, 120s. to the ealdorman as wite. if any of this happens before a king's ealdorman's junior, or a king's priest, 30s. as wite. if any one fights in a ceorlish man's dwelling, let him make bot of 6s. to the ceorl. if he draws his weapon but doesn't fight, let it be half of that. if, however, either of these happens to a man with a wergeld of 600s., let it increase threefold of the ceorlish bot; and if to a man with a wergeld of 1200s., let it increase twofold of the bot of the man with a wergeld of 600s. breach of the king's dwelling [breaking and entering] shall be 120s.; an archbishop's, 90s.; any other bishop's, and an ealdorman's, 60s.;. a 1200s. wergeld man's, 30s.; a 600s. wergeld man's, 15s.; and a ceorl's 5s. if any one plot against the king's life, of himself, or by harboring of exiles, or of his men; let him be liable with his life and in all that he has; or let him prove himself according to his lord's wer. if any one with a band or gang of men slays an unoffending man, let him who acknowledges the deathblow pay wer and wite. if the slain man had a wergeld of 200s, let every one who was of the gang pay 30s. as gangbot. if he had a wergeld of 600s., let every one pay 60s. as gangbot. if he had a wergeld of 1200s., let every one pay 120s. if a gang does this, and afterwards denies it on oath, let them all be accused, and let them then all pay the wer in common; and all, one wite, such as shall belong to the wer. if any one lends his weapon to another so he may kill some one with it, they may join together if they will in the wer. if they will not join together, let him who lent the weapon pay of the wer a third part, and of the wite a third part. with his lord a man may fight free of liability for homicide, if any one attack the lord: thus may the lord fight for his man. likewise, a man may fight with his born kinsman, if a man attack him wrongfully, except against his lord. and a man may fight free of liability for homicide, if he finds another with his lawful wife, within closed doors, or under one covering, or with his lawfully born daughter, or with his lawfully born sister, or with his mother, who was given to his father as his lawful wife. if a man knows his foe is sitting at his home, he may not fight with him before he demands justice of him. if he has such power that he can beset his foe, and besiege him within, let him keep him within for seven days, and not attack him if he will remains within. and, then, after seven days, if he surrenders, and gives up his weapons, let him be kept safe for thirty days, and let notice of him be given to his kinsmen and his friends. but if he does not have sufficient power to besiege him within, let him ride to the ealdorman, and beg aid of him. if he will not aid him, let him ride to the king before he fights. in like manner also, if a man come upon his foe, and he did not know beforehand that he was staying at his home; if he is willing to give up his weapons, let him be kept for thirty days, and let notice of him be given to his friends; if he will not give up his weapons, then he may attack him. if he is willing to surrender, and to give up his weapons, and any one after that attack him, let him pay as well wer as wound, as he may do, and wite, and let him have forfeited his compensation to his kin. every church shall have this peace: if a fugitive flee to one for sanctuary, no one may drag him out for seven days. if he is willing to give up his weapons to his foes, let him stay thirty days, and then let notice of him be given to his kinsmen. if any man confess in church any offenses which had not been before revealed, let him be half forgiven. if a man from one holdgetael wishes to seek a lord in another holdgetael, let him do it with the knowledge of the ealdorman whom he before followed in his shire. if he does it without his knowledge, let him who treats him as his man pay 120s. as wite, one-half to the king in the shire where he before followed and one-half in that into which he comes. if he has done anything wrong where he was before, let him make bot for it who has there received him as his man; and to the king 120s. as wite. "if any one steals so that his wife and children don't know it, he shall pay 60 shillings as wite. but if he steals with the knowledge of all his household, they shall all go into slavery. a boy of ten years may be privy to a theft." "if one who takes a thief, or holds him for the person who took him, lets the thief go, or conceals the theft, he shall pay for the thief according to his wer. if he is an eorldormen, he shall forfeit his shire, unless the king is willing to be merciful to him." if any one steal in a church, let him pay the lawful penalty and the wite, and let the hand be struck off with which he did it. if he will redeem the hand, and that be allowed him, let him pay as may belong to his wer. if a man slanders another, the penalty is no lighter thing than that his tongue be cut out; which must not be redeemed at any cheaper rate than it is estimated at according to his wer. if one deceives an unbetrothed woman and sleep with her, he must pay for her and have her afterwards to wife. but if her father not approve, he should pay money according to her dowry. "if a man seize hold of the breast of a ceorlish woman, let him make bot to her with 5 shillings. if he throw her down and do not lie with her, let him make bot with 10 shillings. if he lie with her, let him make bot with 60 shillings. if another man had before lain with her, then let the bot be half that. if this befall a woman more nobly born, let the bot increase according to the wer." "if any one, with libidinous intent, seize a nun either by her raiment or by her breast without her leave, let the bot be twofold, as we have before ordained concerning a laywoman." "if a man commit a rape upon a ceorl's female slave, he must pay bot to the ceorl of 5 shillings and a wite [fine to the king] of 60 shillings. if a male theow rape a female theow, let him make bot with his testicles." for the first dog bite, the owner pays 6 shillings, for the second, 12 shillings, for the third, 30 shillings. an ox which gores someone to death shall be stoned. if one steals or slays another's ox, he must give two oxen for it. the man who has land left to him by his kindred must not give it away from his kindred, if there is a writing or witness that such was forbidden by those men who at first acquired it, and by those who gave it to him; and then let that be declared in the presence of the king and of the bishop, before his kinsmen. judicial procedure cases were held at monthly meetings of the hundred court. the king or one of his reeves, conducted the trial by compurgation. in compurgation, the one complaining, called the "plaintiff", and the one defending, called the "defendant", each told their story and put his hand on the bible and swore "by god this oath is clean and true". a slip or a stammer would mean he lost the case. otherwise, community members would stand up to swear on behalf of the plaintiff or the defendant as to their reputation for veracity. the value of a man's oath was commensurate with his value or wergeld. a man's brothers were usually his compurgators. if these "compurgators" were too few, usually twelve in number, or recited poorly, their party lost. if this process was inconclusive, the parties could bring witnesses to declare such knowledge as they had as neighbors. these witnesses, male and female, swore to particular points determined by the court. if the witnesses failed, the defendant was told to go to church and to take the sacrament only if he or she were innocent. if he or she took the sacrament, he or she was tried by the process of "ordeal", which was administered by the church. in the ordeal by cold water, he was given a drink of holy water and then bound hand and foot and thrown into water. if he floated, he was guilty. if he sank, he was innocent. it was not necessary to drown to be deemed innocent. in the ordeal by hot water, he had to pick up a stone from inside a boiling cauldron. if his hand was healing in three days, he was innocent. if it was festering, he was guilty. a similar ordeal was that of hot iron, in which one had to carry in his hands a hot iron for a certain distance. the results of the ordeal were taken to indicate the will of god. presumably a person convicted of murder, i.e. killing by stealth, or robbery [taking from a person's robe, that is, his person or breaking into his home to steal] would be hung and his possessions confiscated. a bishop's oath was incontrovertible. accused archbishops and bishops could clear themselves with an oath that they were guiltless. lesser ranks could clear themselves with the oaths of three compurgators of their rank or, for more serious offenses, undergo the ordeal of the consecrated morsel. for this, one would swallow a morsel; if he choked on it, he was guilty. any inanimate or animate object or personal chattel which was found by a court to be the immediate cause of death was forfeited as "deodand", for instance, a tree from which a man fell to his death, a beast which killed a man, a sword of a third party not the slayer that was used to kill a man. the deodand was to go to the dead man's kin so they could wreak their vengeance on it, which in turn would cause the dead man to lie in peace. this is a lawsuit regarding rights to feed pigs in a certain woodland: "in the year 825 which had passed since the birth of christ, and in the course of the second indiction, and during the reign of beornwulf, king of mercia, a council meeting was held in the famous place called clofesho, and there the said king beornwulf and his bishops and his earls and all the councilors of this nation were assembled. then there was a very noteworthy suit about wood pasture at sinton, towards the west in scirhylte. the reeves in charge of the pigherds wished to extend the pasture farther, and take in more of the wood than the ancient rights permitted. then the bishop and the advisors of the community said that they would not admit liability for more than had been appointed in aethelbald's day, namely mast for 300 swine, and that the bishop and the community should have two thirds of the wood and of the mast. the archbishop wulfred and all the councilors determined that the bishop and the community might declare on oath that it was so appointed in aethelbald's time and that they were not trying to obtain more, and the bishop immediately gave security to earl eadwulf to furnish the oath before all the councilors, and it was produced in 30 days at the bishop's see at worcester. at that time hama was the reeve in charge of the pigherds at sinton, and he rode until he reached worcester, and watched and observed the oath, as earl eadwulf bade him, but did not challenge it. here are the names and designations of those who were assembled at the council meeting ..." chapter 3 the times: 900-1066 there were many large landholders such as the king, earls, and bishops. earls were noblemen by birth, and often relatives of the king. they were his army commanders and the highest civil officials, each responsible for a shire. a breach of the public peace of an earl would occasion a fine. lower in social status were freemen: sokemen, and then, in decreasing order, villani [villeins], bordarii, and cottarii. the servi were the slaves. probably all who were not slaves were freemen. kings typically granted land in exchange for services of military duties, maintaining fortresses, and repairing bridges. less common services required by landlords include equipping a guard ship and guarding the coast, guarding the lord, military watch, maintaining the deer fence at the king's residence, alms giving, and church dues. since this land was granted in return for service, there were limitations on its heritability and often an heir had to pay a heriot to the landlord to obtain the land. a heriot was originally the armor of a man killed, which went to the king. the heriot of a thegn who had soken [or jurisdiction over their own lands] came to be about 80s.; of a kings' thegn about four lances, two coats of mail, two swords, and 125s.; of an earl about eight horses, four saddled and four unsaddled, eight lances, four coats of mail, four swords, and 500s. there were several thousand thegns, rich and poor, who held land directly of the king. some thegns had soken and others did not. free farmers who had sought protection from thegns in time of war now took them as their lords. a freeman could chose his lord, following him in war and working his land in peace. all able-bodied freemen were liable to military service in the fyrd [national militia], but not in a lord's private wars. in return, the lord would protect him against encroaching neighbors, back him in the courts of law, and feed him in times of famine. but often, lords raided each other's farmers, who fled into the hills or woods for safety. often a lord's fighting men stayed with him at his large house, but later were given land with inhabitants on it, who became his tenants. the lords were the ruling class and the greatest of them sat in the king's council along with bishops, abbots, and officers of the king's household. the lesser lords were local magnates, who officiated at the shire and hundred courts. staghunting, foxhunting, and hawking were reserved for lords who did not work with their hands. every free born person had the right to hunt other game. there was a great expansion of arable land. some land had been specifically allocated to certain individuals. some was common land, held by communities. if a family came to pay the dues and fines on certain common land, it could become personal to that family and was then known as heirland. most land came to be privately held from community-witnessed allotments or inheritance. bookland was those holdings written down in books. this land was usually land that had been given to the church or monasteries because church clerics could write. so many thegns gave land to the church, usually a hide, that the church held 1/3 of the land of the realm. folkland was that land that was left over after allotments had been made to the freemen and which was not common land. it was public land and a national asset and could be converted to heirland or bookland only by action of the king and witan. it could also be rented by services to the state via charter. a holder of folkland might express a wish, e.g. by testamentary action, for a certain disposition of it, such as an estate for life or lives for a certain individual. but a distinct act by the king and witan was necessary for this wish to take effect. small private transactions of land could be done by "livery of seisin" in the presence of neighbors. all estates in land could be let, lent, or leased by its holders, and was then known as "loenland". ploughs and wagons could be drawn by four or more oxen or horses in sets of two behind each other. oxenshoes and horseshoes prevented lameness due to cracked hooves. horse collars especially fitted for horses, replaced oxen yoke that had been used on horses. the horse collar did not restrict breathing and enabled horses to use the same strength of oxen. also, horses had better endurance and faster speed. a free holder's house was wood, perhaps with a stone foundation, and roofed with thatch or tiles. there was a main room or hall, with bed chambers around it. beyond was the kitchen, perhaps outside under a lean-to. these buildings were surrounded by a bank or stiff hedge. simple people lived in huts made from wood and mud, with one door and no windows. they slept around a wood-burning fire in the middle of the earthen floor. they wore shapeless clothes of goat hair and unprocessed wool from their sheep. they ate rough brown bread, vegetable and grain broth, ale from barley, bacon, beans, milk, cabbage, onion, apples, plums, cherries, and honey for sweetening or mead. vegetables grown in the country included onions, leeks, celery, lettuce, radish, carrots, garlic, shallots, parsnip, dill, chervil, marigold, coriander, and poppy. in the summer, they ate boiled or raw veal and wild fowl such as ducks, geese, or pigeons, and game snared in the forest. poultry was a luxury food, but recognized as therapeutic for invalids, especially in broth form [chicken soup]. venison was highly prized. there were still some wild boar, which were hunted with long spears, a greyhound dog, and hunting horns. they sometimes mated with the domestic pigs which roamed the woodlands. in september, the old and infirm pigs were slaughtered and their sides of bacon smoked in the rafters for about a month. their intestines provided skin for sausages. in the fall, cattle were slaughtered and salted for food during the winter because there was no more pasture for them. however, some cows and breed animals were kept through the winter. for their meals, people used wooden platters, sometimes earthenware plates, drinking horns, drinking cups from ash or alderwood turned on a foot-peddled pole lathe, and bottles made of leather. their bowls, pans, and pitchers were made by the potter's wheel. water could be boiled in pots made of iron, brass, lead, or clay. water could be carried in leather bags because leather working preservative techniques improved so that tanning prevented stretching or decaying. at the back of each hut was a hole in the ground used as a latrine, which flies frequented. moss was used for toilet paper. parasitical worms in the stool were ubiquitous. most of the simple people lived in villages of about 20 homes circling a village green or lining a single winding lane. there were only first names, and these were usually passed down family lines. to grind their grain, the villagers used hand mills with crank and gear, or a communal mill, usually built of oak, driven by power transmitted through a solid oak shaft, banded with iron as reinforcement, to internal gear wheels of elm. almost every village had a watermill. it might be run by water shooting over or flowing under the wheel. clothing for men and women was made from coarse wool, silk, and linen and was usually brown in color. only the wealthy could afford to wear linen or silk. men also wore leather clothing, such as neckpieces, breeches, ankle leathers, shoes, and boots. boots were worn when fighting. they carried knives or axes under metal belts. they could carry items by tying leather pouches onto their belts with their drawstrings. they wore leather gloves for warmth and for heavy working with their hands. people were as tall, strong and healthy as in the late 1900s, not having yet endured the later malnourishment and overcrowding that was its worst in the 1700s and 1800s. their teeth were very healthy. most adults died in their 40s, after becoming arthritic from hard labor. people in their 50s were deemed venerable. boys of twelve were considered old enough to swear an oath of allegiance to the king. girls married in their early teens, often to men significantly older. the lands of the large landholding lords were administered by freemen. they had wheat, barley, oats, and rye fields, orchards, vineyards for wine, and beekeeping areas for honey. on this land lived not only farm laborers, cattle herders, shepherds, goatherds, and pigherds, but craftsmen such as goldsmiths, hawkkeepers, dogkeepers, horsekeepers, huntsmen, foresters, builders, weaponsmiths, embroiders, bronze smiths, blacksmiths, watermill wrights, wheelwrights, wagon wrights, iron nail makers, potters, soap makers (made from wood ashes reacting chemically with fats or oils), tailors, shoemakers, salters (made salt at the "wyches", which later became towns ending with '-wich'), bakers, cooks, and gardeners. most men did carpentry work. master carpenters worked with ax, hammer, and saw to make houses, doors, bridges, milk buckets, washtubs, and trunks. blacksmiths made gates, huge door hinges, locks, latches, bolts, and horseshoes. the lord loaned these people land on which to live for their life, called a "life estate", in return for their services. the loan could continue to their widows or children who took up the craft. mills were usually powered by water. candles were made from beeswax, which exuded a bright and steady light and pleasant smell, or from mutton fat, which had an unpleasant odor. the wheeled plough and iron-bladed plough made the furrows. one man held the plough and another walked with the oxen, coaxing them forward with a stick and shouts. seeds were held in an apron for seeding. farm implements included spades, shovels, rakes, hoes, buckets, barrels, flails, and sieves. plants were pruned to direct their growth and to increase their yield. everyone got together for feasts at key stages of the farming, such as the harvest. easter was the biggest feast. when the lord was in the field, his lady held their estate. there were common lands of these estates as well as of communities. any proposed new settler had to be admitted at the court of this estate. the land of some lords included fishing villages along the coasts. from the sea were caught herrings, salmon, porpoises, sturgeon, oysters, crabs, mussels, cockles, winkles, plaice, flounder, and lobsters. sometimes whales were driven into an inlet by many boats. river fish included eels, pike, minnows, burbot, trout, and lampreys. they were caught by brushwood weirs, net, bait, hooks, and baskets. oysters were so numerous that they were eaten by the poor. the king's peace extended over the waterways. if mills, fisheries, weirs, or other structures were set up to block them, they were to be destroyed and a penalty paid to the king. other lords had land with iron mining industries. ore was dug from the ground and combined with wood charcoal in a shaft furnace to be smelted into liquid form. wood charcoal was derived from controlled charring of the wood at high temperatures without using oxygen. this burned impurities from it and left a purer carbon, which burned better than wood. the pure iron was extracted from this liquid and formed into bars. to keep the fire hot, the furnaces were frequently placed at windswept crossings of valleys or on the tops of hills. some lords had markets on their land, for which they charged a toll for participation. there were about fifty markets in the nation. cattle and slaves (from the word "slav") were the usual medium of exchange. an ox was still worth about 30d. shaking hands was symbolic of an agreement for a sale, which had to be carried out in front of witnesses at the market for any property worth over 20d. the higher the value of the property, the more witnesses were required. witnesses were also required for the exchange of property and to vouch for cattle having being born on the property of a person claiming them. people traveled to markets on deep, sunken roads and narrow bridges kept in repair by certain men who did this work as their service to the king. the king's peace extended to a couple of high roads, i.e. highways, running the length of the country and a couple running its width. salt was used throughout the nation to preserve meat over the winter. inland saltworks had an elaborate and specialized organization. the chief one used saltpans and furnaces to extract salt from natural brine springs. they formed little manufacturing enclaves in the midst of agricultural land, and they were considered to be neither large private estates headed by a lord nor appurtenant to such. they belonged jointly to the king and the local earl, who shared, at a proportion of two to one, the proceeds of the tolls upon the sale of salt and methods of carriage on the ancient salt ways according to cartload, horse load, or man load. sometimes there were investors in a portion of the works who lived quite at distance away. the sales of salt were mostly retail, but some bought to resell. peddlers carried salt to sell from village to village. some smiths traveled for their work, for instance, stonewrights building arches and windows in churches, and lead workers putting lead roofs on churches. an example of a grant of hides of land is: "[god has endowed king edred with england], wherefore he enriches and honors men, both ecclesiastic and lay, who can justly deserve it. the truth of this can be acknowledged by the thegn aelfsige hunlafing through his acquisition of the estate of 5 hides at alwalton for himself and his heirs, free from every burden except the repair of fortifications, the building of bridges and military service; a prudent landowner church dues, burial fees and tithes. [this land] is to be held for all time and granted along with the things both great and small belonging to it." a bishop gave land to a faithful attendant for his life and two other lives as follows: "in 904 a.d., i, bishop werfrith, with the permission and leave of my honorable community in worcester, grant to wulfsige, my reeve, for his loyal efficiency and humble obedience, one hide of land at aston as herred held it, that is, surrounded by a dyke, for three lives and then after three lives the estate shall be given back without any controversy to worcester." at seaports on the coast, goods were loaded onto vessels owned by english merchants to be transported to other english seaports. london was a market town on the north side of the thames river and the primary port and trading center for foreign merchants. streets that probably date from this time include milk, bread, and wood streets, and honey lane. there were open air markets such as billingsgate. there were wooden quays over much of the river front. houses were made of wood, with one sunken floor, or a ground floor with a cellar beneath. some had central stone hearths and earth latrines. there were crude pottery cooking pots, beakers and lamps, wool cloth, a little silk, simple leather shoes, pewter jewelry, looms, and quernstones (for grinding flour). wool, skins, hides, wheat, meal, beer, lead, cheese, salt, and honey were exported. wine (mostly for the church), fish, timber, pitch, pepper, garlic, spices, copper, gems, gold, silk, dyes, oil, brass, sulphur, glass, slaves, and elephant and walrus ivory were imported. goods from the continent were sold at open stalls in certain streets. furs and slaves were traded. there was a royal levy on exports by foreigners merchants. southwark, across the thames river from london,was reachable by a bridge. southwark contained sleazy docks, prisons, gaming houses, and brothels. guilds in london were first associations of neighbors for the purposes of mutual assistance. they were fraternities of persons by voluntary compact to assist each other in poverty, including their widows or orphans and the portioning of poor maids, and to protect each other from injury. their essential features are and continue to be in the future: 1) oath of initiation, 2) entrance fee in money or in kind and a common fund, 3) annual feast and mass, 4) meetings at least three times yearly for guild business, 5) obligation to attend all funerals of members, to bear the body if need be from a distance, and to provide masses for the dead, 6) the duty of friendly help in cases of sickness, imprisonment, house burning, shipwreck, or robbery, 7) rules for decent behavior at meetings, and 8) provisions for settling disputes without recourse to the law. both the masses and the feast were attended by the women. frequently the guilds also had a religious ceremonial to affirm their bonds of fidelity. they readily became connected with the exercise of trades and with the training of apprentices. they promoted and took on public purposes such as the repairing of roads and bridges, the relief of pilgrims, the maintenance of schools and almshouses, and the periodic performance of pageants and miracle plays telling scriptural history, which could last for several days. the devil often was prominent in miracle plays. many of these london guilds were known by the name of their founding member. there were also frith guilds (peace guilds) and a knights' guild. the frith guild's main object was to enforce the king's laws, especially the prevalent problem of theft. they were especially established by bishops and reeves. members met monthly and contributed about 4d. to a common fund, which paid a compensation for items stolen. they each paid 1s. towards the pursuit of the thief. the members were grouped in tens. members with horses were to track the thief. members without horses worked in the place of the absent horse owners until their return. when caught, the thief was tried and executed. overwhelming force was used if his kindred tried to protect him. his property was used to compensate the victim for his loss and then divided between the thief's wife, if she was innocent, the king, and the guild. owners of slaves paid into a fund to give one half compensation to those who lost slaves by theft or escape, and recaptured slaves were to be stoned to death or hanged. the members of the peace guild also feasted and drank together. when one died, the others each sang a song or paid for the singing of fifty psalms for his soul and gave a loaf. the knights' guild was composed of thirteen military persons to whom king edgar granted certain waste land in the east of london, toward aldgate, and also portsoken, which ran outside the eastern wall of the city to the thames, for prescribed services performed, probably defense of the vulnerable east side of the city. this concession was confirmed by king edward the confessor in a charter at the suit of certain citizens of london, the successors of these knights. edward granted them sac and soke [cause and suit] jurisdiction over their men. edward the confessor made these rules for london: 1. be it known that within the space of three miles from all parts outside of the city a man ought not to hold or hinder another, and also should not do business with him if he wish to come to the city under its peace. but when he arrives in the city, then let the market be the same to the rich man as to the poor. 2. be it also known that a man who is from the court of the king or the barons ought not to lodge in the house of any citizen of london for three nights, either by privilege or by custom, except by consent of the host. for if he force the host to lodge him in his house and there be killed by the host, let the host choose six from his relatives and let him as the seventh swear that he killed him for the said cause. and thus he will remain quit of the murder of the deceased towards the king and relatives and lords of the deceased. 3. and after he has entered the city, let a foreign merchant be lodged wherever it please him. but if he bring dyed cloth, let him see to it that he does not sell his merchandise at retail, but that he sell not less than a dozen pieces at a time. and if he bring pepper, or cumin, or ginger, or alum, or brasil wood, or resin, or incense, let him sell not less than fifteen pounds at a time. but if he bring belts, let him sell not less than a thousand at a time. and if he bring cloths of silk, or wool or linen, let him see that he cut them not, but sell them whole. but if he bring wax, let him sell not less than one quartanum. also a foreign merchant may not buy dyed cloth, nor make the dye in the city, nor do any work which belongs by right to the citizens. 4. also no foreign merchant with his partner may set up any market within the city for reselling goods in the city, nor may he approach a citizen for making a bargain, nor may he stop longer in the city. every week in london there was a folkmote at st. paul's churchyard, where majority decision was a tradition. by 1032, it had lost much of its power to the husting [household assembly in danish] court. the folkmote then had responsibility for order and was the sole authority for proclaiming outlaws. it met three times a year at st. paul's churchyard and there acclaimed the sheriff and justiciar, or if the king had chosen his officer, heard who was chosen and listened to his charge. it also yearly arranged the watch and dealt with risks of fire. it was divided into wards, each governed by an alderman who presided over the wardmote, and represented his ward at the folkmote. each guild became a ward. the chief alderman was the portreeve. london paid one-eighth of all the taxes of england. later in the towns, merchant guilds grew out of charity associations whose members were bound by oath to each other and got together for a guild feast every month. some traders of these merchant guilds became so prosperous that they became landholders. many market places were dominated by a merchant guild, which had a monopoly of the local trade. in the great mercantile towns all the land and houses would be held by merchants and their dependents, all freeholders were connected with a trade, and everyone who had a claim on public office or magistry would be a member of the guild. the merchant guild could admit into their guild country villeins, who became freemen if unclaimed by their lords for a year and a day. every merchant who had made three long voyages on his own behalf and at his own cost ranked as a thegn. there were also some craft guilds composed of handicraftsmen or artisans. escaped bonded agricultural workers, poor people, and traders without land migrated to towns to live, but were not citizens. towns were largely self-sufficient, but salt and iron came from a distance. the king's established in every shire at least one town with a market place where purchases would be witnessed, and a mint where reliable money was coined by a moneyer, who put his name on his coins. there were eight moneyers in london. coins were issued to be of value for only a couple of years. then one had to exchange them for newly issued ones at a rate of about 10 old for 8 or 9 new. the difference constituted a tax. roughly 10% of the people lived in towns. some took surnames such as tanner, weaver, or carpenter. some had affectionate or derisive nicknames such as clear-hand, fresh friend, soft bread, foul beard, money taker, or penny purse. craftsmen in the 1000s included goldsmiths, embroiderers, illuminators of manuscripts, and armorers. edward the confessor, named such for his piety, was a king of 24 years who was widely respected for his intelligence, resourcefulness, good judgment, and wisdom. his educated queen edith, whom he relied on for advice and cheerful courage, was a stabilizing influence on him. they were served by a number of thegns, who had duties in the household, which was composed of the hall, the courtyard, and the bedchamber. they were important men thegns by rank. they were landholders, often in several areas, and held leading positions in the shires. they were also priests and clerics, who maintained the religious services and performed tasks for which literacy was necessary. edward was the first king to have a "chancellor". he kept a royal seal and was the chief royal chaplain. he did all the secretarial work of the household and court, drew up and sealed the royal writs, conducted the king's correspondence, and kept all the royal accounts. the word "chancellor" signified a screen behind which the secretarial work of the household was done. he had the special duty of securing and administering the royal revenue from vacant benefices. the most important royal officers were the chamberlains, who took care of the royal bedchamber and adjoining wardrobe used for dressing and storage of valuables, and the priests. these royal officers had at first been responsible only for domestic duties, but gradually came to assume public administrative tasks. edward wanted to avoid the pressures and dangers of living in the rich and powerful city of london. so he rebuilt a monastic church, an abbey, and a palace at westminster about two miles upstream. he started the growth of westminster as a center of royal and political power; kings' councils met there. royal coronations took place at the abbey. since edward traveled a lot, he established a storehouse-treasury at winchester to supplement his traveling wardrobe. at this time, spanish stallions were imported to improve english horses. london came to have the largest and best trained army in england. the court invited many of the greatest magnates and prelates [highest ecclesiastical officials, such as bishops] of the land to the great ecclesiastical festivals, when the king held more solemn courts and feasted with his vassals for several days. these included all the great earls, the majority of bishops, some abbots, and a number of thegns and clerics. edward had a witan of wise men to advise him, but sometimes the king would speak in the hall after dinner and listen to what comments were made from the mead-benches. as the court moved about the country, many men came to pay their respects and attend to local business. edward started the practice of king's touching people to cure them of scrofula, a disease which affected the glands, especially in the head and neck. it was done in the context of a religious ceremony. the main governmental activities were: war, collection of revenue, religious education, and administration of justice. for war, the shires had to provide a certain number of men and the ports quotas of ships with crews. the king was the patron of the english church. he gave the church peace and protection. he presided over church councils and appointed bishops. as for the administration of justice, the public courts were almost all under members of edward's court, bishops, earls, and reeves. edward's mind was often troubled and disturbed by the threat that law and justice would be overthrown, by the pervasiveness of disputes and discord, by the raging of wicked presumption, by money interfering with right and justice, and by avarice kindling all of these. he saw it as his duty to courageously oppose the wicked by taking good men as models, by enriching the churches of god, by relieving those oppressed by wicked judges, and by judging equitably between the powerful and the humble. he was so greatly revered that a comet was thought to accompany his death. the king established the office of the chancery to draft documents and keep records. it created the writ, which was a small piece of parchment [sheep skin] addressed to a royal official or dependent commanding him to perform some task for the king. by the 1000s a.d., the writ contained a seal: a lump of wax with the impress of the great seal of england which hung from the bottom of the document. writing was done with a sharpened goose-wing quill. ink was obtained from mixing fluid from the galls made by wasps for their eggs on oak trees, rainwater or vinegar, gum arabic, and iron salts for color. a king's grant of land entailed two documents: a charter giving boundaries and conditions and a writ, usually addressed to the shire court, listing the judicial and financial privileges conveyed with the land. these were usually sac and soke [possession of jurisdiction of a private court of a noble or institution to execute the laws and administer justice over inhabitants and tenants of the estate], toll [right to have a market and to collect a payment on the sale of cattle and other property on the estate] and team [probably the right to hold a court to determine the honesty of a man accused of illegal possession of cattle or of buying stolen cattle by inquiring of the alleged seller or a warrantor, even if an outsider], and infangenetheof [the authority to hang and take the chattels of a thief caught on the estate]. the town of coventry consisted of a large monastery estate and a large private estate headed by a lord. the monastery was granted by edward the confessor full freedom and these jurisdictions: sac and soke, toll and team, hamsocne [the authority to fine a person for breaking into and making entry by force into the dwelling of another], forestall [the authority to fine a person for robbing others on the road], bloodwite [the authority to impose a forfeiture for assault involving bloodshed], fightwite [the authority to fine for fighting], weordwite [the authority to fine for manslaughter, but not for willful murder], and mundbryce [the authority to fine for any breach of the peace, such as trespass on lands]. every man was expected to have a lord to whom he gave fealty. he swore by this fealty oath: "by the lord, before whom this relic is holy, i will be to faithful and true, and love all that he loves, and shun all that he shuns, according to god's law, and according to the world's principle, and never, by will nor by force, by word nor by work, do ought of what is loathful to him; on condition that he keep me as i am willing to deserve, and all that fulfill that our agreement was, when i to him submitted and chose his will." if a man was homeless or lordless, his brothers were expected to find him such, e.g. in the folkmote. otherwise, he was to be treated as a fugitive and could be slain, and anyone who had harbored him would pay a penalty. brothers were also expected to protect their minor kinsmen. marriages were determined by men asking women to marry them. if a woman said yes, he paid a sum to her kin for her "mund" [jurisdiction or protection over her] and gave his oath to them to maintain and support the woman and any children born. as security for this oath, he gave a valuable object or "wed". the couple were then betrothed. marriage ceremonies were performed by priests in churches. the groom had to bring friends to his wedding as sureties to guarantee his oath to maintain and support his wife and children. those who swore to take care of the children were called their "godfathers". the marriage was written into church records. after witnessing the wedding, friends ate the great loaf, or first bread made by the bride. this was the forerunner of the wedding cake. they drank special ale, the "bride ale" (from hence the work "bridal"), to the health of the couple. women could own land, houses, and furniture and other property. they could even make wills that disinherited their sons. this marriage agreement with an archbishop's sister provides her with land, money, and horsemen: "here in this document is stated the agreement which wulfric and the archbishop made when he obtained the archbishop's sister as his wife, namely he promised her the estates at orleton and ribbesford for her lifetime, and promised her that he would obtain the estate at knightwick for her for three lives from the community at winchcombe, and gave her the estate at alton to grant and bestow upon whomsoever she pleased during her lifetime or at her death, as she preferred, and promised her 50 mancuses of gold and 30 men and 30 horses. the witnesses that this agreement was made as stated were archbishop wulfstan and earl leofwine and bishop aethelstan and abbot aelfweard and the monk brihtheah and many good men in addition to them, both ecclesiastics and laymen. there are two copies of this agreement, one in the possession of the archbishop at worcester and the other in the possession of bishop aethelstan at hereford." this marriage agreement provided the wife with money, land, farm animals and farm laborers; it also names sureties, the survivor of whom would receive all this property: "here is declared in this document the agreement which godwine made with brihtric when he wooed his daughter. in the first place he gave her a pound's weight of gold, to induce her to accept his suit, and he granted her the estate at street with all that belongs to it, and 150 acres at burmarsh and in addition 30 oxen and 20 cows and 10 horses and 10 slaves. this agreement was made at kingston before king cnut, with the cognizance of archbishop lyfing and the community at christchurch, and abbot aelfmaer and the community at st. augustine's, and the sheriff aethelwine and sired the old and godwine, wulfheah's son, and aelfsige cild and eadmaer of burham and godwine, wulfstan's son, and carl, the king's cniht. and when the maiden was brought from brightling aelfgar, sired's son, and frerth, the priest of forlstone, and the priests leofwine and wulfsige from dover, and edred, eadhelm's son, and leofwine, waerhelm's son, and cenwold rust and leofwine, son of godwine of horton, and leofwine the red and godwine, eadgifu's son, and leofsunu his brother acted as security for all this. and whichever of them lives the longer shall succeed to all the property both in land and everything else which i have given them. every trustworthy man in kent and sussex, whether thegn or commoner, is cognizant of these terms. there are three of these documents; one is at christchurch, another at st. augustine's, and brihtric himself has the third." nuns and monks lived in segregated nunneries and monasteries on church land and grew their own food. the local bishop usually was also an abbot of a monastery. the priests and nuns wore long robes with loose belts and did not carry weapons. their life was ordered by the ringing of the bell to start certain activities, such as prayer; meals; meetings; work in the fields, gardens, or workshops; and copying and illuminating books. they chanted to pay homage and to communicate with god or his saints. they taught justice, piety, chastity, peace, and charity; and cared for the sick. caring for the sick entailed mostly praying to god as it was thought that only god could cure. they bathed a few times a year. they got their drinking water from upstream of where they had located their latrines over running water. the large monasteries had libraries, dormitories, guesthouses, kitchens, butteries to store wine, bakehouses, breweries, dairies, granaries, barns, fishponds, orchards, vineyards, gardens, workshops, laundries, lavatories with long stone or marble washing troughs, and towels. slavery was diminished by the church by excommunication for the sale of a child over seven. the clergy taught that manumission of slaves was good for the soul of the dead, so it became frequent in wills. the clergy were to abstain from red meat and wine and were to be celibate. but there were periods of laxity. punishment was by the cane or scourge. the archbishop of canterbury began anointing new kings at the time of coronation to emphasize that the king was ruler by the grace of god. as god's minister, the king could only do right. from 973, the new king swore to protect the christian church, to prevent inequities to all subjects, and to render good justice, which became a standard oath. it was believed that there was a celestial hierarchy, with heavenly hosts in specific places. the heavenly bodies revolved in circles around the earthly world on crystal spheres of their own, which were serene, harmonious, and eternal. this contrasted with the change, death, and decay that occurred in the earthly world. also in this world, aristotle's four elements of earth, air, fire, and water sought their natural places, e.g. bubbles of air rising through water. the planets were called wanderers because their motion did not fit the circular scheme. god intervened in daily life, especially if worshipped. saints such as bede and hilda performed miracles, especially ones of curing. their spirits could be contacted through their relics, which rested at the altars of churches. when someone was said to have the devil in him, people took it quite literally. a real jack frost nipped noses and fingers and made the ground too hard to work. little people, elves, trolls, and fairies inhabited the fears and imaginings of people. the forest was the mysterious home of spirits. people prayed to god to help them in their troubles and from the work of the devil. since natural causes of events were unknown, people attributed events to wills like their own. illness was thought to be caused by demons. people hung charms around their neck for cure and treatments of magic and herbs were given. some had hallucinogenic effects, which were probably useful for pain. for instance, the remedy for "mental vacancy and folly" was a drink of "fennel, agrimony, cockle, and marche". bloodletting by leeches and cautery were used for most maladies, which were thought to be caused by imbalance of the four bodily humors: sanguine, phlegmatic, choleric, and melancholic. these four humors reflected the four basic elements air, water, fire, and earth. blood was hot and moist like air; phlegm was cold and moist like water; choler or yellow bile was hot and dry like fire; and melancholy or black bile was cold and dry like earth. bede had explained that when blood predominates, it makes people joyful, glad, sociable, laughing, and talking a great deal. phlegm renders them slow, sleepy, and forgetful. red cholic makes them thin, though eating much, swift, bold, wrathful, and agile. black cholic makes them serious of settled disposition, even sad. to relieve brain pressure and/or maybe to exorcise evil spirits, holes were made in skulls by a drill with a metal tip that was caused to turn back and forth by a strap wrapped around a wooden handle. a king's daughter edith inspired a cult of holy wells, whose waters were thought to alleviate eye conditions. warmth and rest were also used for illness. agrimony boiled in milk was thought to relieve impotence in men. it was known that the liver casted out impurities in the blood. the stages of fetal growth were known. the soul was not thought to enter a fetus until after the third month, so presumably abortions within three months were allowable. the days of the week were sun day, moon day, tiw's day (viking god of war), woden's day (viking god of victory, master magician, calmer of storms, and raiser of the dead), thor's day (viking god of thunder), frig's day (viking goddess of fertility and growing things), and saturn's day (roman god). special days of the year were celebrated: christmas, the birthday of jesus christ; the twelve days of yuletide (a viking tradition) when candles were lit and houses decorated with evergreen and there were festivities around the burning of the biggest log available; plough monday for resumption of work after yuletide; february 14th with a feast celebrating saint valentinus, a roman bishop martyr who had married young lovers in secret when marriage was forbidden to encourage men to fight in war; new year's day on march 25th when seed was sown and people banged on drums and blew horns to banish spirits who destroy crops with disease; easter, the day of the resurrection of jesus christ; whitsunday, celebrating the descent of the holy spirit on the apostles of jesus and named for the white worn by baptismal candidates; may day when flowers and greenery was gathered from the woods to decorate houses and churches, morris dancers leapt through their villages with bells, hobby horses, and waving scarves, and people danced around a may pole holding colorful ribbons tied at the top so they became entwined around the pole; lammas on august 1st, when the first bread baked from the wheat harvest was consecrated; harvest home when the last harvest load was brought home while an effigy of a goddess was carried with reapers singing and piping behind, and october 31st, the eve of the christian designated all hallow day, which then became known as all hallow even, or halloween. people dressed as demons, hobgoblins, and witches to keep spirits away from possessing them. trick or treating began with christian beggars asking for "soul cake" biscuits in return for praying for dead relatives. ticktacktoe and backgammon were played. there were riddles such as: i am a strange creature, for i satisfy women ... i grow very tall, erect in a bed. i'm hairy underneath. from time to time a beautiful girl, the brave daughter of some fellow dares to hold me grips my reddish skin, robs me of my head and puts me in the pantry. at once that girl with plaited hair who has confined me remembers our meeting. her eye moistens. what am i? an onion. a man came walking where he knew she stood in a corner, stepped forwards; the bold fellow plucked up his own skirt by hand, stuck something stiff beneath her belt as she stood, worked his will. they both wiggled. the man hurried; his trusty helper plied a handy task, but tired at length, less strong than she, weary of the work. thick beneath her belt swelled the thing good men praise with their hearts and purses. what am i? a milk churn. the languages of invaders had produced a hybrid language that was roughly understood throughout the country. the existence of europe, africa, asia, and india were known. jerusalem was thought to be at the center of the world. there was an annual tax of a penny on every hearth, peter's pence, to be collected and sent to the pope in rome. ecclesiastical benefices were to pay churchscot, a payment in lieu of first fruits of the land, to the pope. the law the king and witan deliberated on the making of new laws, both secular and spiritual, at the regularly held witanagemot. there was a standard legal requirement of holding every man accountable, though expressed in different ways, such as the following three: every freeman who does not hold land must find a lord to answer for him. the act of homage was symbolized by holding his hands together between those of his lord. every lord shall be personally responsible as surety for the men of his household. [this included female lords.] (king athelstan) "and every man shall see that he has a surety, and this surety shall bring and keep him to [the performance of] every lawful duty. 1. and if anyone does wrong and escapes, his surety shall incur what the other should have incurred. 2. if the case be that of a thief and his surety can lay hold of him within twelve months, he shall deliver him up to justice, and what he has paid shall be returned to him." (king edgar) every freeman who holds land, except lords with considerable landed property, must be in a local tithing, usually ten to twelve men, in which they serve as personal sureties for each other's peaceful behavior. if one of the ten landholders in a tithing is accused of an offense, the others have to produce him in court or pay a fine plus pay the injured party for the offense, unless they could prove that they had no complicity in it. if the man is found guilty but can not pay, his tithing must pay his fine. the chief officer is the "tithing man" or "capital pledge". there were probably ten tithings in a hundred. (king edward the confessor). everyone was to take an oath not to steal, which one's surety would compel one to keep. no one may receive another lord's man without the permission of this lord and only if the man is blameless towards every hand. the penalty is the bot for disobedience. no lord was to dismiss any of his men who had been accused, until he had made compensation and done right. "no woman or maiden shall be forced to marry a man she dislikes or given for money." "violence to a widow or maiden is punishable by payment of one's wergeld." no man may have more wives than one. no man may marry among his own kin within six degrees of relationship or with the widow of a man as nearly related to him as that, or with a near relative of his first wife's, or his godmother, or a divorced woman. incest is punishable by payment of one's wergeld or a fine or forfeiture of all his possessions. grounds for divorce were mutual consent or adultery or desertion. adultery was prohibited for men as well as for women. the penalty was payment of a bot or denial of burial in consecrated ground. a law of canute provided that if a wife was guilty of adultery, she forfeited all her property to her husband and her nose and ears, but this law did not survive him. laymen may marry a second time, and a young widow may again take a husband, but they will not receive a blessing and must do penance for their incontinence. prostitutes were to be driven out of the land or destroyed in the land, unless they cease from their wickedness and make amends to the utmost of their ability. neither husband nor wife could sell family property without the other's consent. if there was a marriage agreement, it determined the wife's "dower", which would be hers upon his death. otherwise, if a man who held his land in socage [owned it freely and not subject to a larger landholder] died before his wife, she got half this property. if there were minor children, she received all this property. inheritance of land to adult children was by the custom of the land held. in some places, the custom was for the oldest son to take it and in other places, the custom was for the youngest son to take it. usually, the sons each took an equal portion by partition, but the eldest son had the right to buy out the others as to the chief messuage [manor; dwelling and supporting land and buildings] as long as he compensated them with property of equal value. if there were no legitimate sons, then each daughter took an equal share when she married. in london, one-third of the personal property of a decedent went to his wife, one-third went to his children in equal shares, and one-third he could bequeath as he wished. "if a man dies intestate [without a will], his lord shall have heriot [horses, weapons, shields, and helmets] of his property according to the deceased's rank and [the rest of] the property shall be divided among his wife, children, and near kinsmen." a man could justifiably kill an adulterer in the act with the man's wife, daughter, sister, or mother. in kent, a lord could fine any bondswoman of his who had become pregnant without his permission [childwyte]. a man could kill in defense of his own life, the life of his kinsmen, his lord, or a man whose lord he was. the offender was "caught red-handed" if the blood of his victim was still on him. self-help was available for hamsocne [breaking into a man's house to assault him]. murder is punished by death as follows: "if any man break the king's peace given by hand or seal, so that he slay the man to whom the peace was given, both his life and lands shall be in the king's power if he be taken, and if he cannot be taken he shall be held an outlaw by all, and if anyone shall be able to slay him he shall have his spoils by law." the king's peace usually extended to important designated individuals, churches, assemblies, those traveling to courts or assemblies, and particular times and places. often a king would extend his peace to fugitives from violent feuds if they asked the king, earls, and bishops for time to pay compensation for their misdeeds. from this came the practice of giving a portion of the "profits of justice" to such men who tried the fugitive. the king's peace came to be extended to those most vulnerable to violence: foreigners, strangers, and kinless persons. "if anyone by force break or enter any man's court or house to slay or wound or assault a man, he shall pay 100s. to the king as fine." "if anyone slay a man within his court or his house, himself and all his substance are at the king's will, save the dower of his wife if he have endowed her." if a person fights and wounds anyone, he is liable for his wer. if he fells a man to death, he is then an outlaw and is to be seized by raising the hue and cry. and if anyone kills him for resisting god's law or the king's, there will be no compensation for his death. a man could kill a thief over twelve years in the act of carrying off his property over 8d., e.g. the thief hand-habbende [a thief found with the stolen goods in his hand] or the thief back-berend [a thief found carrying stolen goods on his back]. cattle theft could be dealt with only by speedy pursuit. a person who had involuntarily lost possession of cattle is to at once raise the hue and cry. he was to inform the hundredman, who then called the tithingmen. all these neighbors had to then follow the trail of the cow to its taker, or pay 30d. to the hundred for the first offense; and 60d. for the second offense, half to the hundred and half to the lord; and half a pound [10s.] for the third offense; and forfeiture of all his property and declared outlaw for the fourth offense. if the hundred pursued a track into another hundred, notice was to be given to that hundredman. if he did not go with them, he had to pay 30s. to the king. if a thief was brought into prison, he was to be released after 40 days if he paid his fine of 120s. his kindred could become his sureties, to pay according to his wer if he stole again. if a thief forfeited his freedom and gave himself up, but his kindred forsook him, and he does not know of anyone who will make bot for him; let him then do theow-work, and let the wer abate for the kindred. measures and weights of goods for sale shall be correct. every man shall have a warrantor to his market transactions and no one shall buy and sell except in a market town; but he shall have the witness of the portreeve or of other men of credit, who can be trusted. moneyers accused of minting money outside a designated market were to go to the ordeal of the hot iron with the hand that was accused of doing the fraud. if he was found guilty, his hand that did the offense was to be struck off and be set up on the moneysmithy. no marketing, business, or hunting may be done on sundays. no one may bind a freeman, shave his head in derision, or shave off his beard. shaving was a sign of enslavement, which could be incurred by not paying one's fines for offenses committed. no clergy may gamble or participate in games of chance. the laws for london were: "1. the gates called aldersgate and cripplegate were in charge of guards. 2. if a small ship came to billingsgate, one halfpenny was paid as toll; if a larger ship with sails, one penny was paid. 1) if a hulk or merchantman arrives and lies there, four pence is paid as toll. 2) from a ship with a cargo of planks, one plank is given as toll. 3) on three days of the week toll for cloth [is paid] on sunday and tuesday and thursday. 4) a merchant who came to the bridge with a boat containing fish paid one halfpenny as toll, and for a larger ship one penny." 5 8) foreigners with wine or blubber fish or other goods and their tolls. (foreigners were allowed to buy wool, melted sheep fat [tallow], and three live pigs for their ships.) "3. if the town reeve or the village reeve or any other official accuses anyone of having withheld toll, and the man replies that he has kept back no toll which it was his legal duty to pay, he shall swear to this with six others and shall be quit of the charge. 1) if he declares that he has paid toll, he shall produce the man to whom he paid it, and shall be quit of the charge. 2) if, however, he cannot produce the man to whom he paid it, he shall pay the actual toll and as much again and five pounds to the king. 3) if he vouches the taxgatherer to warranty [asserting] that he paid toll to him, and the latter denies it, he shall clear himself by the ordeal and by no other means of proof. 4. and we [the king and his counselors] have decreed that a man who, within the town, makes forcible entry into another man's house without permission and commits a breach of the peace of the worst kind and he who assaults an innocent person on the king's highway, if he is slain, shall lie in an unhonored grave. 1) if, before demanding justice, he has recourse to violence, but does not lose his life thereby, he shall pay five pounds for breach of the king's peace. 2) if he values the goodwill of the town itself, he shall pay us thirty shillings as compensation, if the king will grant us this concession." 5. no base coin or coin defective in quality or weight, foreign or english, may be used by a foreigner or an englishman. (in 956, a person found guilty of illicit coining was punished by loss of a hand.) judicial procedure there were courts for different geographical communities. the arrangement of the whole kingdom into shires was completed by 975 after being united under king edgar. a shire was a larger area of land, headed by an earl. a shire reeve or "sheriff" represented the royal interests in the shires and in the shire courts. this officer came to be selected by the king and earl of the shire to be a judicial and financial deputy of the earl and to execute the law. the office of sheriff, which was not hereditary, was also responsible for the administration of royal lands and royal accounts. the sheriff summoned the freemen holding land in the shire, four men selected by each community or township, and all public officers to meet twice a year at their "shiremote". actually only the great lords the bishops, earls, and thegns attended. the shire court was primarily concerned with issues of the larger landholders. here the freemen interpreted the customary law of the locality. the earl declared the secular law and the bishop declared the spiritual law. they also declared the sentence of the judges. the earl usually took a third of the profits, such as fines and forfeits, of the shire court, and the bishop took a share. in time, the earls each came to supervise several shires and the sheriff became head of the shire and assumed the earl's duties there, such as heading the county fyrd. the shire court also heard cases which had been refused justice at the hundredmote and cases of keeping the peace of the shire. the hundred was a division of the shire, having come to refer to a geographical area rather than a number of households. the monthly hundredmote could be attended by any freeman holding land (or a lord's steward), but was usually attended only by reeve, thegns, parish priest, and four representatives selected by each agrarian community or village usually villeins. here transfers of land were witnessed. a reeve, sometimes the sheriff, presided over local criminal and peace and order issues ["leet jurisdiction", which derived from sac and soc jurisdiction] and civil cases at the hundred court. all residents were expected to attend the leet court. the sheriff usually held each hundred court in turn. the suitors to these courts were the same as those of the shire courts. they were the judges who declared the law and ordered the form of proof, such as compurgatory oath and ordeal. they were customarily thegns, often twelve in number. they, as well as the king and the earl, received part of the profits of justice. summary procedure was followed when a criminal was caught in the act or seized after a hue and cry. every freeman over age twelve had to be in a hundred and had to follow the hue and cry. "no one shall make distraint [seizure of personal property out of the possession of an alleged wrongdoer into the custody of the party injured, to procure a satisfaction for a wrong committed] of property until he has appealed for justice in the hundred court and shire court". in 997, king ethelred in a law code ordered the sheriff and twelve leading magnates of each shire to swear to accuse no innocent man, nor conceal any guilty one. this was the germ of the later assize, and later still the jury. the integrity of the judicial system was protected by certain penalties: for swearing a false oath, bot as determined by a cleric who has heard his confession, or, if he has not confessed, denial of burial in consecrated ground. also a perjurer lost his oath-worthiness. swearing a false oath or perjury was also punishable by loss of one's hand or half one's wergeld. a lord denying justice, as by upholding an evildoing thegn of his, had to pay 120s. to the king for his disobedience. furthermore, if a lord protected a theow of his who had stolen, he had to forfeit the theow and pay his wer, for the first offense, and he was liable for all he property, for subsequent offenses. there was a bot for anyone harboring a convicted offender. if anyone failed to attend the gemot thrice after being summoned, he was to pay the king a fine for his disobedience. if he did not pay this fine or do right, the chief men of the burh were to ride to him, and take all his property to put into surety. if he did not know of a person who would be his surety, he was to be imprisoned. failing that, he was to be killed. but if he escaped, anyone who harbored him, knowing him to be a fugitive, would be liable pay his wer. anyone who avenged a thief without wounding anyone, had to pay the king 120s. as wite for the assault. "and if anyone is so rich or belongs to so powerful a kindred, that he cannot be restrained from crime or from protecting and harboring criminals, he shall be led out of his native district with his wife and children, and all his goods, to any part of the kingdom which the king chooses, be he noble or commoner, whoever he may be with the provision that he shall never return to his native district. and henceforth, let him never be encountered by anyone in that district; otherwise he shall be treated as a thief caught in the act." this lawsuit between a son and his mother over land was heard at a shire meeting: "here it is declared in this document that a shire meeting sat at aylton in king cnut's time. there were present bishop aethelstan and earl ranig and edwin, the earl's son, and leofwine, wulfsige's son, and thurkil the white; and tofi the proud came there on the king's business, and bryning the sheriff was present, and aethelweard of frome and leofwine of frome and godric of stoke and all the thegns of herefordshire. then edwin, enneawnes son, came traveling to the meeting and sued his own mother for a certain piece of land, namely wellington and cradley. then the bishop asked whose business it was to answer for his mother, and thurkil the white replied that it was his business to do so, if he knew the claim. as he did not know the claim, three thegns were chosen from the meeting [to ride] to the place where she was, namely at fawley, and these were leofwine of frome and aethelsige the red and winsige the seaman, and when they came to her they asked her what claim she had to the lands for which her son was suing her. then she said that she had no land that in any way belonged to him, and was strongly incensed against her son, and summoned to her kinswoman, leofflaed, thurkil's wife, and in front of them said to her as follows: 'here sits leofflaed, my kinswoman, to whom, after my death, i grant my land and my gold, my clothing and my raiment and all that i possess.' and then she said to the thegns: 'act like thegns, and duly announce my message to the meeting before all the worthy men, and tell them to whom i have granted my land and all my property, and not a thing to my own son, and ask them to be witnesses of this.' and they did so; they rode to the meeting and informed all the worthy men of the charge that she had laid upon them. then thurkil the white stood up in the meeting and asked all the thegns to give his wife the lands unreservedly which her kinswoman had granted her, and they did so. then thurkil rode to st. aethelbert's minister, with the consent and cognizance of the whole assembly, and had it recorded in a gospel book." courts controlled by lords of large private estates had various kinds of jurisdiction recognized by the king: sac and soke [possession of legal powers of execution and profits of justice held by a noble or institution over inhabitants and tenants of the estate, exercised through a private court], toll [right to collect a payment on the sale of cattle and property] and team [right to hold a court to determine the honesty of a man accused of illegal possession of cattle], infangenetheof [the authority to judge and to hang and take the chattels of a thief caught on the property], and utfangenetheof [the authority to judge and to hand and take the chattels of a thief dwelling out of his liberty, and committing theft without the same, if he were caught within the lord's property]. some lords were even given jurisdiction over breach of the royal peace, ambush and treacherous manslaughter, harboring of outlaws, forced entry into a residence, and failure to answer a military summons. often this court's jurisdiction overlapped that of the hundred court and sometimes a whole hundred had passed under the jurisdiction of an abbot, bishop, or earl. a lord and his noble lady, or his steward, presided at this court. the law was administered here on the same principles as at the hundred court. judges of the leet of the court of a large private estate were chosen from the constables and four representatives selected from each community, village, or town. the vill [similar to village] was the smallest community for judicial purposes. there were several vills in a hundred. before a dispute went to the hundred court, it might be taken care of by the head tithing man, e.g. cases between vills, between neighbors, and some compensations and settlements, namely concerning pastures, meadows, harvests, and contests between neighbors. in london, the hustings court met weekly and decided such issues as wills and bequests and commerce matters. the folkmote of all citizens met three times a year. each ward had a leet court [for minor criminal matters]. the king and his witan decided the complaints and issues of the nobility and those cases which had not received justice in the hundred or shire court. the witan had a criminal jurisdiction and could imprison or outlaw a person. the witan could even compel the king to return any land he might have unjustly taken. specially punishable by the king was "oferhyrnesse": contempt of the king's law. it covered refusal of justice, neglect of summons to gemot or pursuit of thieves, disobedience to the king's officers, sounding the king's coin, accepting another man's dependent without his leave, buying outside markets, and refusing to pay peter's pence. the forests were peculiarly subject to the absolute will of the king. they were outside the common law. their unique customs and laws protected the peace of the animals rather than the king's subjects. only special officials on special commissions heard their cases. the form of oaths for compurgation were specified for theft of cattle, unsoundness of property bought, and money owed for a sale. the defendant denied the accusation by sweating that "by the lord, i am guiltless, both in deed and counsel, and of the charge of which ... accuses me." a compurgator swore that "by the lord, the oath is clean and unperjured which ... has sworn.". a witness swore that "in the name of almighty god, as i here for ... in true witness stand, unbidden and unbought, so i with my eyes oversaw, and with my ears overheard, that which i with him say." if a theow man was guilty at the ordeal, he was not only to give compensation, but was to be scourged thrice, or a second geld be given; and be the wite of half value for theows. chapter 4 the times: 1066-1100 william came from normandy to conquer england. he claimed that the former king, edward, the confessor, had promised the throne to him when they were growing up together in normandy, if edward became king of england and had no children. the conquerer's men and horses came in boats powered by oars and sails. the conquest did not take long because of the superiority of his military expertise to that of the english. he organized his army into three groups: archers with bows and arrows, horsemen with swords and stirrups, and footmen with hand weapons. each group played a specific role in a strategy planned in advance. the english army was only composed of footmen with hand weapons such as spears and shields. they fought in a line holding up their shields to overlap each other and form a shieldwall. the defeat of the english was thought to have been presaged by a comet. at westminster, he made an oath to defend god's holy churches and their rulers, to rule the whole people subject to him with righteousness and royal providence, to enact and hold fast right law, and to utterly forbid rapine and unrighteous judgments. this was in keeping with the traditional oath of a new king. declaring the english who fought against him to be traitors, the conquerer declared their land confiscated. but he allowed those who were willing to acknowledge him to redeem their land by a payment of money. as william conquered the land of the realm, he parceled it out among the barons who fought with him so that each baron was given the holdings of an anglo-saxon predecessor, scattered though they were. the barons again made oaths of personal loyalty to him [fealty]. they agreed to hold the land as his vassals with future military services to him and receipt of his protection. they gave him homage by placing their hands within his and saying "i become your man for the tenement i hold of you, and i will bear you faith in life and member [limb] and earthly honor against all men". they held their land "of their lord", the king, by knight's service. the king had "enfeoffed" them [given them a fief: a source of income] with land. the theory that by right all land was the king's and that land was held by others only at his gift and in return for specified service was new to english thought. the original duration of a knight's fee until about 1100 was for his life; thereafter it was heritable. the word "knight" came to replace the word "thegn" as a person who received his position and land by fighting for the king. the exact obligation of knight's service was to furnish a fully armed horseman to serve at his own expense for forty days in the year. this service was not limited to defense of the country, but included fighting abroad. the baron led his own knights under his banner. the foot soldiers were from the fyrd or were mercenaries. every free man was sworn to join in the defense of the king, his lands and his honor, within england and without. the saxon governing class was destroyed. the independent power of earls, who had been drawn from three great family houses, was curtailed. most died or fled the country. some men were allowed to redeem their land by money payment if they showed loyalty to the conquerer. well-born women crowded into nunneries to escape norman violence. the people were deprived of their most popular leaders, who were excluded from all positions of trust and profit, especially all the clergy. the earldoms became fiefs instead of magistracies. the conquerer was a stern and fierce man and ruled as an autocrat by terror. whenever the people revolted or resisted his mandates, he seized their lands or destroyed the crops and laid waste the countryside and so that they starved to death. this example pacified others. his rule was strong, resolute, wise, and wary. he was not arbitrary or oppressive. the conquerer had a strict system of policing the nation. instead of the anglo-saxon self-government throughout the districts and hundreds of resident authorities in local courts, he aimed at substituting for it the absolute rule of the barons under military rule so favorable to the centralizing power of the crown. he used secret police and spies and the terrorism this system involved. this especially curbed the minor barons and preserved the public peace. the english people, who outnumbered the normans by 300 to 1, were disarmed. curfew bells were rung at 7:00 pm when everyone had to remain in their own dwellings on pain of death and all fires and candles were to be put out. this prevented any nightly gatherings, assassinations, or seditions. order was brought to the kingdom so that no man dare kill another, no matter how great the injury he had received. the conquerer extended the king's peace on the highways, i.e. roads on high ground, to include the whole nation. any individual of any rank could travel from end to end of the land unharmed. before, prudent travelers would travel only in groups of twenty. the barons subjugated the english who were on their newly acquired land. there began a hierarchy of seisin [rightful occupation] of land so that there could be no land without its lord. also, every lord had a superior lord with the king as the overlord or supreme landlord. one piece of land may be held by several tenures. for instance, a, holding by barons' service of the king, may enfeoff b, a church, to hold of him on the terms of praying for the souls of his ancestors, and b may enfeoff a freeman c to hold of the church by giving it a certain percentage of his crops every year. there were about 200 barons who held land directly of the king. other fighting men were the knights, who were tenants or subtenants of a baron. knighthood began as a reward for valor on the field of battle by the king or a noble. the value of a knight's fee was 400s. [20 pounds] per year. altogether there were about 5000 fighting men holding land. the essence of norman feudalism was that the land remained under the lord, whatever the vassal might do. the lord had the duty to defend the vassals on his land. the vassal owed military service to the lord and also the service of attending the courts of the hundred and the county [formerly "shire"], which were courts of the king, administering old customary law. they were the king's courts on the principle that a crime anywhere was a breach of the king's peace. the king's peace that had covered his residence and household had extended to places where he might travel, such as highways, rivers, bridges, churches, monasteries, markets, and towns, and then encompassed every place, replacing the general public peace. infraction of the king's peace incurred fines to the king. this feudal bond based on occupancy of land rather than on personal ties was uniform throughout the realm. no longer could a man choose his lord and transfer his land with him to a new lord. he held his land at the will of his lord, to be terminated anytime the lord decided to do so. a tenant could not alienate his land without permission of his lord. in later eras, tenancies would be held for the life of the tenant, and even later, for his life and those of his heirs. this uniformity of land organization plus the new requirement that every freeman take an oath of loyalty directly to the king to assist him in preserving his lands and honor and defending him against his enemies, which oath would supersede any oath to any other man, gave the nation a new unity. the king could call men directly to the fyrd, summon them to his court, and tax them without intervention of their lords. and the people learned to look to the king for protection from abuse by their lords. english villani, bordarii, cottarii, and servi on the land of the barons were subjugated into a condition of "villeinage" servitude and became "tied to the land" so that they could not leave the land without their lord's permission, except to go on a pilgrimage. the villeins formed a new bottom class as the population's percentage of slaves declined dramatically. they held their land of their lord, the baron. to guard against uprisings of the conquered people, the barons used villein labor to build about a hundred great stone castles, with moats and walls with towers around them, at easily defensible positions such as hilltops all over the nation. a castle could be built only with permission of the king. a typical castle had a stone building of about four floors [a keep] on a small, steep hill. later it also had an open area surrounded by a stone curtain-wall with towers at the corners. around the outside of the wall were ditches and banks and perhaps a moat. one traveled over these via a drawbridge let down at the gatehouse of the enclosing wall. on either side of the gatehouse were chambers for the guards. arrows could be shot through slits in the enclosing walls. inside the enclosed area might be stables, a granary, barracks for the soldiers, and workshops. the only winter feed was hay, for which the horses, breeding animals, milkcow, and workoxen had a priority over other animals. the bulk of the cattle were usually slaughtered and salted. the castle building typically was entered by an outer wood staircase to the guard room on the second floor. the first [ground] floor had a well and was used as a storehouse and/or dungeons for prisoners. the second floor had a two-storied great hall, with small rooms and aisles around it within the thick walls. there was also a chapel area on the second floor. there were small areas of the third floor which could be used for sleeping. the floors were wood and were reached by a spiral stone staircase in one corner of the building. sometimes there was a reservoir of water on an upper level with pipes carrying the water to floors below. each floor had a fireplace with a slanted flue going through the wall to the outside. there were latrines in the corner walls with a pit or shaft down the exterior of the wall, sometimes to the moat. furs and wool clothes were hung on the walls there in the summer to deter the moths. the first floor had only arrow slits in the walls, but the higher floors had small windows. some curtain-wall castles did not have a central building. in these, the hall was built along the inside of the walls, as were other continuous buildings. the kitchens and chapels were in the towers. lodgings were in buildings along the curtain-walls, or on several floors of the towers. the great hall was the main room of the castle. the hall was used for meals and meetings at which the lord received homages, recovered fees, and held the view of frankpledge [free pledge in latin], in which freemen agreed to be sureties for each other. at the main table, the lord and his lady sat on benches with backs or chairs. the table was covered first with a wool cloth that reached to the floor, and then by a smaller white linen cloth. everyone else sat on benches at trestle tables, which consisted of planks on trestles and could be dismantled, e.g. at night. over the main door were the family arms. on the walls were swords ready for instant use. on the upper parts of the walls could be fox skins and perhaps a polecat skin, and keepers' and huntsmen's poles. there were often hawk perches overhead. at the midday dinner, courses were ceremonially brought in to music, and ritual bows were made to the lord. the food at the head table was often tasted first by a servant as a precaution against poison. hounds, spaniels, and terriers lay near the hearth and cats, often with litters, nestled nearby. they might share in dinner, but the lord may keep a short stick near him to defend morsels he meant for himself. hunting, dove cotes, and carp pools provided fresh meat. fish was compulsory eating on fridays, on fast days, and during lent. cooking was done outside on an open fire, roasting on spits and boiling in pots. some spits were mechanized with a cogged wheel and a weight at the end of a string. other spits were turned by a long handle, or a small boy shielded from the heat by a wet blanket, or by dogs on a treadmill. underneath the spit was a dripping pan to hold the falling juices and fat. mutton fat was used for candles. bread, pies, and pastry dishes were baked in an oven: a hole in a fireproof stone wall fitted with an iron door, in which wood was first burnt to heat the oven walls. it could also be used for drying fruit or melting tallow. fruits were also preserved in honey. salt was stored in a niche in the wall near the hearth and put on the table in a salt cellar which became more elaborate over the years. salt was very valuable and gave rise to the praise of a man as the salt of the earth. costly imported spices such as cinnamon, cloves, nutmeg, ginger, pepper, and a small quantity of sugar were kept in chests. pepper was always on the table to disguise the taste of tainted meat. spices were tried for medicinal use. drinks included wine, ale, cider from apples, perry from pears, and mead. people carried and used their own knives. there were no forks. spoons were of silver or wood. people also ate with their fingers and washed their hands before and after meals. it was impolite to dig into the salt bowl with a knife not previously wiped on bread or napkin, which was linen. it was unmannerly to wipe one's knife or one's greasy fingers on the tablecloth or, to use the tablecloth to blow one's nose. feasts were stately occasions with costly tables and splendid apparel. there were practical jokes, innocent frolics, and witty verbal debating with repartee. they played chess, checkers, and various games with cards and dice. most people could sing and some could play the lute. lighting of the hall at night was by oil lamps or candles on stands or on wall fixtures. for outside activities, a lantern [a candle shielded by a metal cage with panels of finely shaved horn: lant horn] was used. the residence of the lord's family and guests was at a screened off area at the extreme end of the hall or on a higher floor. chests stored garments and jewels. iron keys and locks were used for chests and doors. the great bed had a wooden frame and springs made of interlaced rope or strips of leather. it was covered with a feather mattress, sheets, quilts, fur covers, and pillows. drapery around the bed kept out cold drafts and provided privacy. there was a water bowl for washing in the morning. a chamber pot was kept under the bed for nighttime use. hay was used as toilet paper. the lord's personal servants slept nearby on benches or trundle beds. most of the gentlemen servants slept communally in a "knight's chamber". the floor of the hall was strewn with straw, on which common folk could sleep at night. there were stools on which to sit. cup boards (boards on which to store cups) and chests stored spices and plate. one-piece iron shears were available to cut cloth. handheld spindles were used for weaving; one hand held the spindle [a small stick weighted at one end] while the other hand alternately formed the thread and wound it around the spindle. on the roofs there were rampart walks for sentry patrols and parapets from which to shoot arrows or throw things at besiegers. each tenant of the demesne of the king where he had a castle had to perform a certain amount of castle guard duty for its continuing defense. these knights performing castle-guard duty slept at their posts. bathing was done in a wooden tub located in the garden in the summer and indoors near the fire in winter. the great bed and tub for bathing were taken on trips with the lord. the entire household was of men, except for the lord's lady with a few lady companions. the ladies rode pillion [on a cushion behind the saddle] or in litters suspended between two horses. markets grew up outside castle walls. any trade on a lord's land was subject to "passage", a payment on goods passing through, "stallage", a payment for setting up a stall or booth in a market, and "pontage", a payment for taking goods across a bridge. the norman man was clean shaven on his face and around his ears and at the nape of the neck. his hair was short. he wore a longsleeved under-tunic of linen or wool that reached to his ankles. over this the norman noble wore a tunic without sleeves, open at the sides, and fastened with a belt. over one shoulder was his cloak, which was fastened on the opposite shoulder by being drawn through a ring brooch and knotted. he wore tight thick cloth stockings to protect him from the mud and leather shoes. common men wore durable, but drab, wool tunics to the knee so as not to impede them in their work. they could roll up their stockings when working in the fields. a lady wore a high-necked, longsleeved linen or wool tunic fitted at the waist and laced at the side, but full in the skirt, which reached to her toes. she wore a jeweled belt, passed twice around her waist and knotted in front. her hair was often in two long braids, and her head and ears covered with a white round cloth held in place by a metal circlet like a small crown. its ends were wound around her neck. in winter, she wore over her tunic a cloak edged or lined with fur and fastened at the front with a cord. clothes of both men and ladies were brightly colored by dyes or embroidery. the norman knight wore an over-tunic of leather or heavy linen on which were sewn flat rings of iron and a conical iron helmet with nose cover. he wore a sword at his waist and a metal shield on his back, or he wore his sword and his accompanying retainers carried spear and shield. norman customs were adopted by the nation. as a whole, anglo-saxon men shaved their beards and whiskers from their faces, but they kept their custom of long hair flowing from their heads. but a few kept their whiskers and beards in protest of the normans. everyone had a permanent surname indicating parentage, place of birth, or residence, such as field, pitt, lane, bridge, ford, stone, burn, church, hill, brook, green. other names came from occupations such as shepherd, carter, parker, fowler, hunter, forester, smith. still other came from personal characteristics such as black, brown, and white, short, round, and long. some took their names from animals such as wolf, fox, lamb, bull, hogg, sparrow, crow, and swan. others were called after the men they served, such as king, bishop, abbot, prior, knight. a man's surname was passed on to his son. those few coerls whose land was not taken by a baron remained free and held their land "in socage" and became known as sokemen. they were not fighting men, and did not give homage, but might give fealty, i.e. fidelity. many free sokemen were caught up in the subjugation by baron landlords and were reduced almost to the condition of the unfree villein. the services they performed for their lords were often indistinguishable. they might also hold their land by villein tenure, although free as a person with the legal rights of a freeman. the freeman still had a place in court proceedings which the unfree villein did not. great stone cathedrals were built in fortified towns for the conquerer's norman bishops, who replaced the english bishops. most of the existing and new monasteries functioned as training grounds for scholars, bishops, and statesmen rather than as retreats from the world's problems to the security of religious observance. the number of monks grew as the best minds were recruited into the monasteries. the conquerer made the church subordinate to him. bishops were elected only subject to the king's consent. the bishops had to accept the status of barons. homage was exacted from them before they were consecrated, and fealty and an oath afterward. the conquerer imposed knight's service on bishoprics, abbeys, and monasteries, which was usually commuted to a monetary amount. bishops had to attend the king's court. bishops could not leave the realm without the king's consent. no royal tenant or royal servant could be excommunicated, nor his lands be placed under interdict, without the king's consent. interdict could demand, for instance, that the church be closed and the dead buried in unconsecrated ground. no church rules could be made without his agreement to their terms. no letters from the pope could be received without the king's permission. the archbishop of canterbury was still recognized as a primary advisor to the king. over the years, the selection for this office frequently became a source of contention among king, pope, and clergy. men continued to give land to the church for their souls, such as this grant which started the town of sandwich: "william, king of the english, to lanfranc the archbishop and hugoni de montfort and richard son of earl gilbert and haimo the sheriff and all the thegns of kent, french and english, greeting. know ye that the bishop of bayeux my brother for the love of god and for the salvation of my soul and his own, has given to st. trinity all houses with their appurtenances which he has at sandwich and that he has given what he has given by my license." many private owners of churches gave them to cathedrals or monastic communities, partly to ensure their long term survival, and partly because of church pressure. when the land was all divided out, the barons had about 3/7 of it and the church about 2/7. most of the barons had been royal servants. the king retained about 2/7, including forests for hunting, for himself and his family and household, on which he built many royal castles and hundreds of manor [large private estate headed by a lord] houses throughout the nation. he built the massive white tower in london. it was tall with four turrets on top, and commanded a view of the river and bridge, the city and the surrounding countryside. the only windows were slits from which arrows could be shot. on the fourth and top floor was the council chamber and the gallery of the chapel. on the third floor was the banqueting hall, the sword room, and the chapel. the king and his household slept in apartments on these upper floors. stairs went up to the gateway entrance on the second floor, which were hidden by a wall. the garrison's barracks were on the first floor (ground floor). any prisoners were kept in cells at a level below the first floor. the other castles were often built at the old fortification burhs of alfred. each had a constable in charge, who was a baron. barons and earls had castle-guard duty in the king's castles. the conquerer was constantly moving about the land among his and his barons' castles, where he met with his magnates and conducted public business, such as deciding disputes about holding of land. near his own castles and other of his property, he designated many areas as royal hunting forests. anyone who killed a deer in these forests was mutilated, for instance by blinding. people living within the boundaries of the designated forestland could no longer go into nearby woods to get meat or honey, dead wood for firing, or live wood for building. swineherds could no longer drive pigs into these woods to eat acorns they beat down from oak trees. making clearings and grazing livestock in the designated forestland were prohibited. most of the nation was either wooded or bog at this time. london was a walled town of one and two story houses made of mud, twigs, and straw, with thatched roofs. it included a bundle of communities, townships, parishes, and lordships. there were churches, a goods market, a fish market, quays on the river, and a bridge over the river. streets probably named by this time include bread street, milk street, honey lane, wood street, and ironmonger lane. fairs and games were held outside the town walls in a field called "smithfield". the great citizens had the land qualifications of knights and ranked as barons on the conquerer's council. the freemen were a small percentage of london's population. there was a butchers' guild, a pepperers' guild, a goldsmiths' guild, the guild of st. lazarus, which was probably a leper charity (of which there were many in the 1000s and 1100s), the pilgrims' guild, which helped people going on pilgrimages, and four bridge guilds, probably for keeping the wooden london bridge in repair. men told the time by sundials, some of which were portable and could be carried in one's pocket. london could defend itself, and a ringing of the bell of st. paul's church could shut every shop and fill the streets with armed horsemen and soldiers led by a soldier portreeve. across the thames from london on its south side was southwark, a small trading and fishing settlement. the conquerer did not interfere with landholding in london, but recognized its independence as a borough in this writ: "william the king greets william, bishop of london, and gosfrith the portreeve, and all the burgesses [citizens] of london friendly. know that i will that you be worthy of all the laws you were worthy of in the time of king edward. and i will that every child shall be his father's heir after his father's day. and i will not suffer any man to do you wrong. god preserve you." the norman word "mayor" replaced "portreeve". so london was not subjected to the norman feudal system. it had neither villeins nor slaves. whenever kings asserted authority over it, the citizens reacted until the king "granted" a charter reaffirming the freedoms of the city and its independence. under pressure from the ecclesiastical judges, the conquerer replaced the death penalty by that of the mutilation of blinding, chopping off hands, and castrating offenders. castration was the punishment for rape. but these mutilations usually led to a slow death by gangrene. the normans used the anglo-saxon concepts of jurisdictional powers. thus when the conquerer confirmed "customs" to the abbot of ely, these were understood to include the following: 1) sac and soke the right to hold a court of private jurisdiction and enjoy its profits, 2) toll a payment in towns, markets, and fairs for goods and chattel bought and sold, 3) team persons might be vouched to warranty in the court, the grant of which made a court capable of hearing suits arising from the transfer of land, 4) infangenthef right of trying and executing thieves on one's land, 4) hamsocne [jurisdiction over breach of the right of security and privacy in a manâ�s house, e.g. by forcible entry],, 5) grithbrice violation of the grantees' special peace, for instance that of the sheriff, 6) fightwite fine for a general breach of the peace, 7) fyrdwite fine for failure to appear in the fyrd. every shire, now called "county", had at least one burh, or defensible town. kings had appointed a royal moneyer in each burh to mint silver coins such as pennies for local use. on one side was the king's head in profile and on the other side was the name of the moneyer. when a new coinage was issued, all moneyers had to go to london to get the new dies. the conquerer's head faced frontally on his dies, instead of the usual profile used by former kings. the conquerer held and presided over his council three times a year, as was the custom, at easter, christmas, and whitsuntide, which coincided with the great christian festivals. this was an advisory council and consisted of the conquerer's wife and sons, earls, barons, knights, officers of the king's household, archbishops, and bishops. it replaced the witan of wise men. it dealt with fundamental matters of law, state, war, and church. earldoms and knighthoods were conferred and homages to the king were witnessed. bishops were nominated. attendance at the council, like attendance at courts, was regarded as a burden rather than a privilege. the conquerer's will was the motive force which under lay all the council's action. when it was administering royal justice, it was called the royal court. the justiciar was the head of all legal matters and he or the conquerer's wife represented the king at the royal court in his absence from the realm. the chamberlain was a financial officer of the household; his work was rather that of auditor or accountant. the chancellor headed the chancery and the chapel. other household offices were steward, butler, constable, and marshall. the treasurer was responsible for the collection and distribution of revenue and was the keeper of the royal treasure at the palace at winchester. he was also an important member of the household and sat in the exchequer at westminster, where he received the accounts of the sheriffs. the exchequer was composed of the justiciar as head, the chancellor, the constable, two chamberlains, the marshall and other experienced councilors. the word "exchequer" came from the chequered cloth on the table used to calculate in roman numerals the amount due and the amount paid. the word "calculate" derives from the word "calculi", meaning pebbles. it was a kind of abacus. the exchequer received yearly from the sheriffs of the counties taxes, fines, treasure trove, goods from wrecks, deodands, and movable property of felons, of persons executed, of fugitives, and of outlaws due to the crown. the conqueror presided yearly over feasts involving several thousand guests at westminster hall, which was 250 feet by 70 feet with a high ceiling, the largest hall in england. the conquerer's reign was a time of tentative expedients and simple solutions. he administered by issuing writs with commands or prohibitions. these were read aloud by the sheriffs in the county courts and other locations. administration was by the personal servants of his royal household, such as the chancellor, chamberlain, constable, marshals, steward, and butler. the language of government changed to latin. the chancellor was from the clergy and supervised the writers and clerks, who were literate, and appended the great seal before witnesses to documents. he also headed the staff of the royal chapel. the chamberlain was a financial officer who audited and accounted. the constable was responsible for supplies for the knights of the royal household. he also supervised the care of horses, hounds, hawks, and huntsmen, houndsmen, and foresters. the marshals came from less important families than the constable and they preserved order in the king's hall and recorded expenditures of the household officers on tallies. the steward was a great baron whose duties were chiefly ceremonial, such as placing the dishes before the king at banquets. sheriffs became powerful figures as the primary agents for enforcing royal edicts. there was no longer supervision of them by earls nor influence on them by bishops. they were customarily prominent barons. they collected the royal taxes, executed royal justice, and presided over and controlled the hundred and county courts. they were responsible for remitting a certain sum annually. if a sheriff received more than necessary, he retained the difference as his lawful profit of office. if he received less than necessary, he had to make up the difference from his own pocket. before rendering this account, he paid the royal benefactions to religious houses, provided for the maintenance of stock on crown lands, paid for the costs of provisions supplied to the court, and paid for traveling expenses of the king and his visitors. the payments were initially paid in kind: e.g. grain, cattle, horses, hounds, and hawks. sheriffs also took part in the keeping of castles and often managed the estates of the king. most royal writs were addressed to the sheriff and county courts. they also led the county militia in time of war or rebellion. at times, a sheriff usurped royal rights, used royal estates for his own purposes, encroached on private land and rights, extorted money, and collected revenues only for his own pockets. over the centuries, there was much competition for the authority to select the sheriff, e.g. by the king, the county court, the barons, and the exchequer. there was also much pressure to limit his term to one year. over time, the powers of the sheriffs slowly declined. royal income came from customary dues, profits of coinage and of justice, and revenues from the king's own estates. for war, there was no change in the custom that a man with five hides of land was required to furnish one heavy armed horseman for forty days service in a year. the fyrd was retained. a threat of a viking invasion caused the conquerer to reinstate the danegeld tax at 6s. per hide, which was three times its old rate. (the price of an ox was still about 30d.) to impose this tax uniformly, he sent commissioners to conduct surveys by sworn verdicts of appointed groups of local men. a detailed survey of land holdings and the productive worth of each was made in 1086. the english called it the "doomsday book" because there was no appeal from it. the survey revealed, for instance, that one estate had "on the home farm five plough teams: there are also 25 villeins and 6 cotters with 14 teams among them. there is a mill worth 2s. a year and one fishery, a church and four acres of meadow, wood for 150 pigs and two stone quarries, each worth 2s. a year, and two nests of hawks in the wood and 10 slaves." this estate was deemed to be worth 480s. a year. laxton "had 2 carucates of land [assessed] to the geld. [there is] land for 6 ploughs. there walter, a man of [the lord] geoffrey alselin's has 1 plough and 22 villeins and 7 bordars [a bordar had a cottage and a small amount land in return for supplying small provisions to his lord] having 5 ploughs and 5 serfs and 1 female serf and 40 acres of meadow. wood [land] for pannage [foraging by pigs] 1 league in length and half a league in breadth. in king edward's time it was worth 9 pounds; now [it is worth] 6 pounds." ilbert de laci has now this land, where he has twelve ploughs in the demesne; and forty-eight villani, and twelve bordars with fifteen ploughs, and three churches and three priests, and three mills of ten shillings. wood pastures two miles long, and one broad. the whole manor five miles long and two broad. value in king edward's time sixteen pounds, the same now. that manor of the town of coventry which was individually held was that of the countess of coventry, who was the wife of the earl of mercia. "the countess held in coventry. there are 5 hides. the arable land employs 20 ploughs. in the demesne lands there are 3 ploughs and 7 bondmen. there are 50 villeins and 12 bordars with 20 ploughs. the mill there pay[s] 3 shillings. the woodlands are 2 miles long and the same broad. in king edward's time and afterwards, it was worth 22 pounds [440 s.], now only 11 pounds by weight. these lands of the countess godiva nicholas holds to farm of the king." the survey shows a few manors and monasteries owned a salthouse or saltpit in the local saltworks, from which they were entitled to obtain salt. in total there were about 110,000 villani [former coerls regarded as customary, irremovable cultivator tenants]; 82,000 bordarii; 7,000 cotarii and cotseti [held land by service of labor or rent paid in produce], and 25,000 servi [landless laborers]. there are no more theows. this survey resulted in the first national tax system of about 6s. per hide of land. the survey also provided the conquerer with a summary of customs of areas. for instance, in oxfordshire, "anyone breaking the king's peace given under his hand and seal to the extent of committing homicide shall be at the king's mercy in respect of his life and members. that is if he be captured. and if he cannot be captured, he shall be considered as an outlaw, and anyone who kills him shall have all his possessions. the king shall take the possessions of any stranger who has elected to live in oxford and who dies in possession of a house in that town, and without any kinfolk. the king shall be entitled to the body and the possessions of any man who kills another within his own court or house excepting always the dower of his wife, if he has a wife who has received dower. the courts of the king and barons became schools of chivalry wherein seven year old noble boys became pages or valets, wore a dagger and waited upon the ladies of the household. at age fourteen, they were advanced to squires and admitted into more familiar association with the knights and ladies of the court. they perfected their skills in dancing, riding, fencing, hawking, hunting, jousting, and engaged in team sports in which the goal was to put the other side to rout. they learned the knightly art of war. enemy fighters were to be taken and held for ransom rather than killed. those engaging in rebellion were to be pardoned and restored to some or all of their lands and titles. lords' sons could be mutually exchanged with an enemy's as security for peace. after achieving knighthood, a man usually selected a wife from the court at which he grew up. parents tried to send their daughters to a household superior in social status not only to learn manners, but to make a good marriage. a girl who did not marry was often sent to a nunnery; a dowry was necessary before her acceptance. the following incidents of land tenure began (but were not firmly established until the reign of henry ii). each tenant, whether baron or subtenant, was to pay an "aid" in money for ransom if his lord was captured in war, for the knighthood of his lord's eldest son, and for the marriage of his lord's eldest daughter. the aid was theoretically voluntary. land could be held by an heir only if he could fight. the eldest son began to succeed to the whole of the lands in all military tenures. younger sons of great houses became bishops. an heir of a tenant had to pay a heavy "relief" on succession to his estate. the relief replaced the heriot. if there was a delay in proving heirship or paying relief, the lord would hold the land and receive its income in the meantime, often a year. if an heir was still a minor or female, he or she passed into his lord's wardship, in which the lord had guardianship of the heir and possession of the estate, with all its profits. the mother was not made a minor's guardian. no longer was the estate protected by the minor's kin as his birthright. a female heir was expected to marry a man acceptable to the lord. the estate of an heiress and her land was generally sold to the highest bidder. if there were no heirs, the land escheated to the lord. if a tenant committed felony, his land escheated to his lord. the word "felony" came from the latin word meaning "to deceive" and referred to the feudal crime of betraying or committing treachery against one's lord. astrologers resided with the families of the barons. people went to fortune tellers' shops. there was horse racing, steeple races, and chess for recreation. girls had dolls; boys had toy soldiers, spinning tops, toy horses, ships, and wooden models. the state of medicine is indicated by this medical advice brought to the nation by william's son after treatment on the continent: "if thou would have health and vigor shun cares and avoid anger. be temperate in eating and in the use of wine. after a heavy meal rise and take the air sleep not with an overloaded stomach and above all thou must respond to nature when she calls." the conquerer allowed jewish traders to follow him from normandy and settle in separate sections of the main towns. then engaged in long distance trade, money changing, and money lending. they loaned money for interest for the building of castles and cathedrals. christians were not allowed by the church to engage in this usury. the jews could not become citizens nor could they have standing in the local courts. instead, a royal justiciar secured justice for them. they could practice their own religion. william the conquerer was succeeded as king by his son william ii (rufus), who transgressed many of the customs of the nation to get more money for himself. he was killed by an arrow of a fellow hunter while they and william's younger brother henry were hunting together in a crown forest. henry then became king. the law the norman conquerors brought no written law, but affirmed the laws of the nation. two they especially enforced were: 1. anyone caught in the act of digging up the king's road, felling a tree across it, or attacking someone so that his blood spilled on it shall pay a fine to the king. 2. all freemen shall have a surety who would hand him over to justice for his offenses or pay the damages or fines due. if an accused man fled, his surety would have a year to find him to obtain reimbursement. the conquerer proclaimed that: no cattle shall be sold except in towns and before three witnesses. for the sale of ancient chattels, there must be a surety and a warrantor. no man shall be sold over the sea. (this ended the slave trade at the port of bristol.) the death penalty for persons tried by court is abolished. judicial procedure "ecclesiastical" courts were created for bishops to preside over cases concerning the cure of souls and criminal cases, in which the ordeal was used. when the conquerer did not preside over this court, an appeal could be made to him. the hundred and county courts now sat without clergy and handled only "civil" cases. they were conducted by the king's own appointed sheriff. only freemen and not bound villeins had standing in this court. they continued to transact their business in the english language. the local jurisdictions of thegns who had grants of sac and soke or who exercised judicial functions among their free neighbors were now called "manors" under their new owners, who conducted a manor court. the conquerer's royal court was called the "curia regis". when the conquerer wished to determine the national laws, he summoned twelve elected representatives of each county to declare on oath the ancient lawful customs and law as they existed in the time of the popular king edward the confessor. the recording of this law was begun. a person could spend months trying to catch up with the royal court to present a case. sometimes the conquerer sent the justiciar or commissioners to hold his royal court in the various districts. the commissioner appointed groups of local men to give a collective verdict upon oath for each trial he conducted. the conquerer allowed, on an ad hoc basis, certain high-level people such as bishops and abbots and those who made a large payment, to have land disputes decided by an inquiry of recognitors. besides royal issues, the curia regis heard appeals from lower court decisions. it used english, norman, feudal, roman, and canon law legal principles to reach a decision, and was flexible and expeditious. a dispute between a norman and an english man over land or a criminal act could be decided by trial by combat [battle]. each combatant first swore to the truth of his cause and undertook to prove by his body the truth of his cause by making the other surrender by crying "craven" [craving forgiveness]. the combatants used weapons like pickaxes and shields. presumably the man in the wrong would not fight as well because he was burdened with a guilty conscience. although this trial was thought to reflect god's will, it favored the physically fit and adept person. after losing the trial by combat, the guilty person would be punished appropriately. london had its own traditions. all london citizens met at its folkmote, which was held three times a year to determine its public officers, to raise matters of public concern, and to make ordinances. its criminal court had the power of outlawry as did the county courts. trade, land, and other civil issues were dealt with by the hustings court, which met every monday in the guildhall. the city was divided into wards, each of which was under the charge of an elected alderman [elder man]. (the election was by a small governing body and the most wealthy and reputable men and not a popular election.) the aldermen had special knowledge of the law and a duty to declare it at the hustings court. each alderman also conducted wardmotes in his ward and decided criminal and civil issues between its residents. within the wards were the guilds of the city. the normans, as foreigners, were protected by the king's peace. the entire hundred was the ultimate surety for murder and would have to pay a "murdrum" fine of 31 pounds [46 marks] for the murder of any norman, if the murderer was not apprehended by his lord within a few days. the reaction to this was that the murderer mutilated the corpse to make identification of ethnicity impossible. so the conquerer ordered that every murder victim was assumed to be norman unless proven english. this began a court custom in murder cases of first proving the victim to be english. the royal court decided this case: "at length both parties were summoned before the king's court, in which there sat many of the nobles of the land of whom geoffrey, bishop of coutances, was delegated by the king's authority as judge of the dispute, with ranulf the vicomte, neel, son of neel, robert de usepont, and many other capable judges who diligently and fully examined the origin of the dispute, and delivered judgment that the mill ought to belong to st. michael and his monks forever. the most victorious king william approved and confirmed this decision." chapter 5 the times: 1100-1154 king henry i, son of william the conquerer, furthered peace between the normans and native english by his marriage to a niece of king edward the confessor called matilda. she married him on condition that he grant a charter of rights undoing some practices of the past reigns of william i and william ii. peace was also furthered by the fact that henry i had been born in england and english was his native tongue. the private wars of lords were now replaced by less serious mock battles. henry was a shrewd judge of character and of the course of events, cautious before taking action, but decisive in carrying out his plans. he was faithful and generous to his friends. he showed a strong practical element of calculation and foresight. although illiterate, he was intelligent and a good administrator. he had an efficient intelligence gathering network and an uncanny knack of detecting hidden plans before they became conspiratorial action. he made many able men of inferior social position nobles, thus creating a class of career judges and administrators in opposition to the extant hereditary aristocracy. he loved books and built a palace at oxford to which he invited scholars for lively discussion. euclid's "elements" ", which deduced from axioms the properties of lines, circles, and spheres, was introduced into england. queen matilda served as regent of the kingdom in henry's absence, as william's queen had for him. both queens received special coronation apart from their husbands; they held considerable estates which they administered through their own officers, and were frequently composed of escheated honors. matilda was learned and a literary patron. she founded an important literary and scholastic center. her compassion was great and her charities extensive. in london she founded several almshouses and a caregiving infirmary for lepers. these were next to small monastic communities. she also had new roads and bridges built. henry issued charters restoring customs which had been subordinated to royal impositions by previous kings, which set a precedent for later kings. his coronation charter describes certain property rights he restored after the oppressive reign of his brother, william ii. "henry, king of the english, to samson the bishop, and urse of abbetot, and to all his barons and faithful vassals, both french and english, in worcestershire, greeting. [1.] know that by the mercy of god and by the common counsel of the barons of the whole kingdom of england i have been crowned king of this realm. and because the kingdom has been oppressed by unjust exactions, i now, being moved by reverence towards god and by the love i bear you all, make free the church of god; so that i will neither sell nor lease its property; nor on the death of an archbishop or a bishop or an abbot will i take anything from the demesne of the church or from its vassals during the period which elapses before a successor is installed. i abolish all the evil customs by which the kingdom of england has beunjustly oppressed. some of those evil customs are here set forth. [2.] if any of my barons or of my earls or of any other of my tenants shall die his heir shall not redeem his land as he was wont to do in the time of my brother, but he shall henceforth redeem it by means of a just and lawful 'relief`. similarly the men of my barons shall redeem their lands from their lords by means of a just and lawful 'relief`. [3.] if any of my barons or of my tenants shall wish to give in marriage his daughter or his sister or his niece or his cousin, he shall consult me about the matter; but i will neither seek payment for my consent, nor will i refuse my permission, unless he wishes to give her in marriage to one of my enemies. and if, on the death of one of my barons or of one of my tenants, a daughter should be his heir, i will dispose of her in marriage and of her lands according to the counsel given me by my barons. and if the wife of one of my tenants shall survive her husband and be without children, she shall have her dower and her marriage portion [that given to her by her parents], and i will not give her in marriage unless she herself consents. [4.] if a widow survives with children under age, she shall have her dower and her marriage portion, so long as she keeps her body chaste; and i will not give her in marriage except with her consent. and the guardian of the land, and of the children, shall be either the widow or another of their relations, as may seem more proper. and i order that my barons shall act likewise towards the sons and daughters and widows of their men. [5.] i utterly forbid that the common mintage [a forced levy to prevent loss to the king from depreciation of the coinage], which has been taken from the towns and counties, shall henceforth be levied, since it was not so levied in the time of king edward [the confessor]. if any moneyer or other person be taken with false money in his possession, let true justice be visited upon him. [6.] i forgive all pleas and all debts which were owing to my brother, except my own proper dues, and except those things which were agreed to belong to the inheritance of others, or to concern the property which justly belonged to others. and if anyone had promised anything for his heritage, i remit it, and i also remit all 'reliefs' which were promised for direct inheritance. [7.] if any of my barons or of my men, being ill, shall give away or bequeath his movable property, i will allow that it shall be bestowed according to his desires. but if, prevented either by violence or through sickness, he shall die intestate as far as concerns his movable property, his widow or his children, or his relatives or one his true men shall make such division for the sake of his soul, as may seem best to them. [8.] if any of my barons or of my men shall incur a forfeit, he shall not be compelled to pledge his movable property to an unlimited amount, as was done in the time of my father [william i] and my brother; but he shall only make payment according to the extent of his legal forfeiture, as was done before the time of my father and in the time of my earlier predecessors. nevertheless, if he be convicted of breach of faith or of crime, he shall suffer such penalty as is just. [9.] i remit all murder fines which were incurred before the day on which i was crowned king; and such murder fines as shall now be incurred shall be paid justly according to the law of king edward [by sureties]. [10.] by the common counsel of my barons i have retained the forests in my own hands as my father did before me. [11.] the knights, who in return for their estates perform military service equipped with a hauberk [long coat] of mail, shall hold their demesne lands quit of all gelds [money payments] and all work; i make this concession as my own free gift in order that, being thus relieved of so great a burden, they may furnish themselves so well with horses and arms that they may be properly equipped to discharge my service and to defend my kingdom. [12.] i establish a firm peace in all my kingdom, and i order that this peace shall henceforth be kept. [13.] i restore to you the law of king edward together with such emendations to it as my father [william i] made with the counsel of his barons. [14.] if since the death of my brother, king william [ii], anyone shall have seized any of my property, or the property of any other man, let him speedily return the whole of it. if he does this no penalty will be exacted, but if he retains any part of it he shall, when discovered, pay a heavy penalty to me. witness: maurice, bishop of london; william, bishop-elect of winchester; gerard, bishop of herefore; henry the earl; simon the earl; walter giffard; robert of montfort-sur-risle; roger bigot; eudo the steward; robert, son of haimo; and robert malet. at london when i was crowned. farewell." henry took these promises seriously, which resulted in peace and justice. royal justice became a force to be reckoned with by the multiplication of justices. henry had a great respect for legality and the forms of judicial action. he became known as the "lion of justice". the payment of queen's gold, that is of a mark of gold to the queen out of every hundred marks of silver paid, in the way of fine or other feudal incident, to the king, probably dates from henry i's reign. a woman could inherit a fief if she married. the primary way for a man to acquire control of land was to marry an heiress. if a man were in a lower station than she was, he had to pay for his new social status as well as have royal permission. a man could also be awarded land which had escheated to the king. if a noble woman wanted to hold land in her own right, she had to make a payment to the king. many widows bought their freedom from guardianship or remarriage from the king. women whose husbands were at war also ran the land of their husbands. barons were lords of large holdings of farmland called "manors". many of the lesser barons left their dark castles to live in semifortified stone houses, which usually were of two rooms with rug hangings for drafts, as well as the sparse furniture that had been common to the castle. there were shuttered windows to allow in light, but which also let in the wind and rain when open. the roof was of thatch or narrow overlapping wood shingles. the stone floor was strewn with hay and there was a hearth near the center of the floor, with a louvered smoke hole in the timber roof for escape of smoke. there were barns for grain and animals. beyond this area was a garden, orchard, and sometimes a vineyard. the area was circumscribed by a moat over which there was a drawbridge to a gatehouse. the smaller room was the lord and lady's bedroom. it had a canopied bed, chests for clothing, and wood frames on which clothes could be hung. life on the manor revolved around the larger room, or hall, where the public life of the household was passed. there, meals were served. the daily diet typically consisted of milk, soup, porridge, fish, vegetables, and bread. open hospitality accompanied this communal living. there was little privacy. manor household villeins carried the lord's sheaves of grain to the manor barn, shore his sheep, malted his grain, and chopped wood for his fire. at night some slept on the floor of the hall. others, who were cottars and bordars, had their own dwellings nearby. the manor house of lesser lords or knights was still built of wood, although it often had a stone foundation. about 35% of the land was arable land, about 25% was common pasture land (for grazing only) or meadow land (near a stream or river and used for hay or grazing), and about 15% was woodland. there were these types of land and wasteland on each manor. the arable land was allotted to the villeins in strips to equalize the best and worst land and their distance from the village where the villeins lived. there was three-way rotation of wheat or rye, oats or barley, and fallow land. cows, pigs, sheep, and fowl were kept. the meadow was allocated for hay for the lord's household and each villein's. the villeins held land of their lord for various services such as agricultural labor or raising domestic animals. the villeins worked about half of their time on their lord's fields [his demesne land], which was about a third of the farmland. this work was primarily to gather the harvest and to plough with oxen, using a yoke over their shoulders, and to sow in autumn and lent. they threshed grain on barn floors with flails cut from holly or thorn, and removed the kernels from the shafts by hand. work lasted from sunrise to sunset and included women and children. the older children could herd geese and pigs, and set snares for rabbits. the young children could gather nuts and berries in season and other wild edibles, and could pick up little tufts of wool shed by sheep. the old could stay in the hut and mind the children, keep the fire going and the black pot boiling, sew, spin, patch clothes, and cobble shoes. the old often suffered from rheumatism. many people had bronchitis. many children died of croup [inflammation of the respiratory passages]. life expectancy was probably below thirty-five. the villein retained his customary rights, his house and land and rights of wood and hay, and his right in the common land of his township. customary ways were maintained. the villeins of a manor elected a reeve to communicate their interests to their lord, usually through a bailiff, who directed the labor. sometimes there was a steward in charge of several of a lord's manors, who also held the manorial court for the lord. the steward held his land of the lord by serjeanty, which was a specific service to the lord. other serjeanty services were carrying the lord's shield and arms, finding attendants and esquires for knights, helping in the lord's hunting expeditions, looking after his hounds, bringing fuel, doing carpentry, and forging irons for ploughs. the woodward preserved the timber. the messer supervised the harvesting. the hayward removed any fences from the fields after harvest to allow grazing by cattle and sheep. the coward, bullard, and calvert tended the cows, bulls, and calves; the shepherd, the sheep; and the swineherds the pigs. the ponder impounded stray stock. there were varieties of horses: war horses, riding horses, courier horses, pack horses, and plough horses. the majority of manors were coextensive with a single village. the villeins lived in the village in one-room huts enclosed by a wood fence, hedge, or stone wall. in this yard was a garden of onions, leeks, mustard, peas, beans, parsley, garlic, herbs, and cabbage and apple, pear, cherry, quince, and plum trees, and beehives. the hut had a high-pitched roof thatched with reeds or straw and low eaves reaching almost to the ground. the walls are built of wood-framing overlaid with mud or plaster. narrow slits in the walls serve as windows, which have shutters and are sometimes covered with coarse cloth. the floor is dirt and may be covered with straw or rushes for warmth, but usually no hearth. in the middle is a wood fire burning on a hearthstone, which was lit by making a spark by striking flint and iron together. the smoke rose through a hole in the roof. at one end of the hut was the family living area, where the family ate on a collapsible trestle table with stools or benches. their usual food was beans and peas, oatmeal gruel, butter, cheese, vegetables, honey, rough bread made from a mixture of wheat, barley, and rye flour, herrings or other salt fish, and some salted or smoked bacon. butter had first been used for cooking and as a medicine to cure constipation. for puny children it could be salted down for the winter. the bread had been roasted on the stones of the fire; later there were communal ovens set up in villages. cooking was done over the fire by boiling in iron pots hung from an iron tripod, or sitting on the hot stones of the fire. they ate from wood bowls using a wood spoon. when they had fresh meat, it could be roasted on a spit. liquids were heated in a kettle. with drinking horns, they drank water, milk, buttermilk, apple cider, mead, ale made from barley malt, and bean and vegetable broth. they used jars and other earthenware, e.g. for storage of salt. they slept on straw mattresses or sacks on the floor or on benches. the villein regarded his bed area as the safest place in the house, as did people of all ranks, and kept his treasures there, which included his farm implements, as well as hens on the beams, roaming pigs, and stalled oxen, cattle, and horses, which were at the other end of the hut. fires were put out at night to guard against fire burning down the huts. the warmth of the animals then helped make the hut warm. around the room are a couple of chests to store salt, meal, flour, a broom made of birch twigs, some woven baskets, the distaff and spindle for spinning, and a simple loom for weaving. all clothes were homemade. they were often coarse, greasy wool and leather made from their own animals. the man wore a tunic of coarse linen embroidered on the sleeves and breast, around with he wore a girdle of rope, leather, or folded cloth. sometimes he also wore breeches reaching below the knee. the woman wore a loose short-sleeved gown, under which was a tight fitting garment with long loose sleeves, and which was short enough to be clear of the mud. if they wore shoes, they were clumsy and patched. some wore a hood-like cap. for really bad weather, a man wore on his head a hood with a very elongated point which could be wrapped around his neck. sometimes a short cape over the shoulders was attached. linen was too expensive for commoners. the absence of fresh food during the winter made scurvy prevalent; in the spring, people eagerly sought "scurvy grass" to eat. occasionally there would be an outbreak of a nervous disorder due to the ergot fungus growing in the rye used for bread. this manifested itself in apparent madness, frightening hallucinations, incoherent shouting, hysterical laughing, and constant scratching of itching and burning sensations. the villein and his wife and children worked from daybreak to dusk in the fields, except for sundays and holydays. he had certain land to farm for his own family, but had to have his grain milled at his lord's mill at the lord's price. he had to retrieve his wandering cattle from his lord's pound at the lord's price. he was expected to give a certain portion of his own produce, whether grain or livestock, to his lord. however, if he fell short, he was not put off his land. the villein, who worked the farm land as his ancestor ceorl had, now was so bound to the land that he could not leave or marry or sell an ox without his lord's consent. if the manor was sold, the villein was sold as a part of the manor. when his daughter or son married, he had to pay a "merchet" to his lord. he could not have a son educated without the lord's permission, and this usually involved a fee to the lord. his best beast at his death, or "heriot", went to his lord. if he wanted permission to live outside the manor, he paid "chevage" yearly. woodpenny was a yearly payment for gathering dead wood. sometimes a "tallage" payment was taken at the lord's will. the villein's oldest son usually took his place on his land and followed the same customs with respect to the lord. for an heir to take his dead ancestor's land, the lord demanded payment of a "relief", which was usually the amount of a year's income but sometimes as much as the heir was willing to pay to have the land. the usual aids were also expected to be paid. a large village also had a smith, a wheelwright, a millwright, a tiler and thatcher, a shoemaker and tanner, a carpenter wainwright and carter. markets were about twenty miles apart because a farmer from the outlying area could then carry his produce to the nearest town and walk back again in the daylight hours of one day. in this local market he could buy foodstuffs, livestock, household goods, fuels, skins, and certain varieties of cloth. the cloth was crafted by local weavers, dyers, and fullers. the weaver lived in a cottage with few and narrow windows and little furniture. he worked in the main, and sometimes the only, room. first the raw wool was washed with water at the front door to remove the grease. then its fibers were disentangled and made fine with hand cards with thistle teeth, usually by the children. then it was spun by a spinning wheel into thread, usually by the wife. on a double frame loom, a set of parallel threads was strung lengthwise. a device worked by a pedal lifted half of these threads --every other thread--while the other half remained in place. between the lifted threads and the stationary threads a shuttle was thrown by the weaver from one hand to another. then the threads which had remained stationary were raised by a second pedal and the shuttle thrown back. the shuttle carried a spool so that, as it moved, it left a thread behind it running crosswise or at right angles to the lengthwise threads and in and out between them. the lengthwise threads were called the "warp"; the shuttle thread was the "woof" or the "weft".in making cloth, it was the warp which, as the loom moved, took the worst beating. with the constant raising and lowering, these treads would wear and break, whereas the weft on which there was little strain remained intact. none of the cotton yarn which the old-fashioned wheels had spun was strong enough for warp. so it was necessary to use linen thread for the warp. since one loom could provide work for about six spinners, the weaver had his wool spun by other spinners in their cottages. sometimes the master weaver had an apprentice or workman working and living with him, who had free board and lodging and an annual wage. then a fuller made the cloth thick and dense by washing, soaping, beating, and agitating it, with the use of a community watermill which could be used by anyone for a fixed payment. the cloth dried through the night on a rack outside the cottage. the weaver then took his cloth, usually only one piece, to the weekly market to sell. the weavers stood at the market holding up their cloth. the cloth merchant who bought the cloth then had it dyed or dressed according to his requirements. its surface could be raised with teazleheads and cropped or sheared to make a nap. some cloth was sold to tailors to make into clothes. often a weaver had a horse for travel, a cow for milk, chickens for eggs, perhaps a few cattle, and some grazing land. butchers bought, slaughtered, and cut up animals to sell as meat. some was sold to cooks, who sold prepared foods. the hide was bought by the tanner to make into leather. the leather was sold to shoemakers and glovemakers. millers bought harvested grain to make into flour. flour was sold to bakers to make into breads. wood was bought by carpenters and by coopers, who made barrels, buckets, tubs, and pails. tilers, oilmakers and rope makers also bought raw material to make into finished goods for sale. wheelwrights made ploughs, harrows, carts, and later wagons. smiths and locksmiths worked over their hot fires. games with dice were sometimes played. in winter, youths iceskated with bones fastened to their shoes. they propelled themselves by striking the ice with staves shod with iron. on summer holydays, they exercised in leaping, shooting with the bow, wrestling, throwing stones, and darting a thrown spear. the maidens danced with timbrels. since at least 1133, children's toys included dolls, drums, hobby horses, pop guns, trumpets, and kites. the cold, indoors as well as outdoors, necessitated that people wear ample and warm garments. men and women of position dressed in long full cloaks reaching to their feet, sometimes having short full sleeves. the cloak generally had a hood and was fastened at the neck with a brooch. underneath the cloak was a simple gown with sleeves tight at the wrist but full at the armhole, as if cut from the same piece of cloth. a girdle or belt was worn at the waist. when the men were hunting or working, they wore gown and cloak of knee length. men wore stockings to the knee and shoes. the fashion of long hair on men returned. the nation grew with the increase of population, the development of towns, and the growing mechanization of craft industries. there were watermills for crafts and for supplying and draining water in all parts of the nation. in flat areas, slow rivers could be supplemented by creating artificial waterfalls, for which water was raised to the level of reservoirs. there were also some ironsmelting furnaces. coal mining underground began as a family enterprise. stone bridges over rivers could accommodate one person traveling by foot or by horseback and were steep and narrow. the wheelbarrow came into use to cart materials for building castles and cathedrals. merchants, who had come from the low end of the knightly class or high end of the villein class, settled around the open market areas, where main roads joined. they had plots narrow in frontage along the road and deep. their shops faced the road, with living space behind or above their stores. town buildings were typically part stone and part timber as a compromise between fire precautions and expense. towns, as distinct from villages, had permanent markets. as towns grew, they paid a fee to obtain a charter for self-government from the king giving the town judicial and commercial freedom. they were literate enough to do accounts. so they did their own valuation of the sum due to the crown so as not to pay the sheriff any more than that. these various rights were typically expanded in future times, and the towns received authority to collect the sum due to the crown rather than the sheriff. this they did by obtaining a charter renting the town to the burghers at a fee farm rent equal to the sum thus deducted from the amount due from the county. such a town was called a "borough" and its citizens or landholding freemen "burgesses". the freemen were â�free of the boroughâ�, which meant hey had exclusive rights and privileges with respect to it. selling wholesale could take place only in a borough. burgesses were free to marry. they were not subject to defense except of the borough. they were exempt from attendance at county and hundred courts. the king assessed a tallage [ad hoc tax] usually at ten per cent of property or income. in the boroughs, merchant and manufacturing guilds controlled prices and assured quality. the head officer of the guild usually controlled the borough, which excluded rival merchant guilds. a man might belong to more than one guild, e.g. one for his trade and another for religion. craft guilds grew up in the towns, such as the tanners at oxford, which later merged with the shoemakers into a cordwainers' guild. there were weavers' guilds in several towns, including london, which were given royal sanction and protection for annual payments (twelve pounds of silver for london). they paid an annual tribute and were given a monopoly of weaving cloth within a radius of several miles. guild rules covered attendance of the members at church services, the promotion of pilgrimages, celebration of masses for the dead, common meals, relief of poor brethren and sisters, the hours of labor, the process of manufacture, the wages of workmen, and technical education. king henry standardized the yard as the length of his own arm. trades and crafts, each of which had to be licensed, grouped together by specialty in the town. cloth makers, dyers, tanners, and fullers were near an accessible supply of running water, upon which their trade depended. streets were often named by the trade located there, such as butcher row, pot row, cordwainer row, ironmonger row, wheeler row, and fish row. hirers of labor and sellers of wheat, hay, livestock, dairy products, apples and wine, meat, poultry, fish and pies, timber and cloth all had a distinct location. some young men were apprenticed to craftsmen to assist them and learn their craft. london had at least twenty wards, each governed by its own alderman. most of them were named after people. london was ruled by sixteen families linked by business and marriage ties. these businesses supplied luxury goods to the rich and included the goldsmiths [sold cups, dishes, girdles, mirrors, purses knives, and metal wine containers with handle and spout], vintners [wine merchants], mercers [sold textiles, haberdashery, combs, mirrors, knives, toys, spices, ointments, and potions], drapers, and pepperers, which later merged with the spicers to become the "grocers", skinners, tanners, shoemakers, woolmen, weavers, fishmongers, armorers, and swordsmiths. there were bakehouses at which one could leave raw joints of meat to be cooked and picked up later. these businesses had in common four fears: royal interference, foreign competition, displacement by new crafts, and violence by the poor and escaped villeins who found their way to the city. when a non-freeholder stayed in london he had to find for frankpledge, three sureties for good behavior. failure to do so was a felony and the ward would eject him to avoid the charge of harboring him with its heavy fine. the arrival of ships with cargoes from continental ports and their departure with english exports was the regular waterside life below london bridge. many foreign merchants lived in london. imports included timber, hemp, fish, and furs. there was a fraternal organization of citizens who had possessed their own lands with sac and soke and other customs in the days of king edward. there were public bathhouses, but they were disreputable. a lady would take an occasional bath in a half cask in her home. the church warned of evils of exposing the flesh, even to bathe. middlesex county was london's territory for hunting and farming. all london craft work was suspended for one month at harvest time. london received this charter for self-government and freedom from the financial and judicial organization of the county: "henry, by the grace of god, king of england, to the archbishop of canterbury and the bishops, abbots, earls, barons, justiciars, sheriffs and all his loyal subjects, both french and english, throughout the whole of england greeting. 1. be it known to you that i have granted middlesex to my citizens of london to be held on lease by them and their heirs of me and my heirs for 300 pounds paid by tale [yearly], upon these terms: that the citizens themselves [may] appoint a sheriff, such as they desire, from among themselves, and a justiciar, such as they desire, from among themselves, to safeguard the pleas of my crown [criminal cases] and to conduct such pleas. and there shall be no other justiciar over the men of london. 2. and the citizens shall not take part in any [civil] case whatsoever outside the city walls. 1) and they shall be exempt from the payment of scot and danegeld and the murder fine. 2) and none of them shall take part in trial by combat. 3) and if any of the citizens has become involved in a plea of the crown, he shall clear himself, as a citizen of london, by an oath which has been decreed in the city. 4) and no one shall be billeted [lodged in a person's house by order of the king] within the walls of the city nor shall hospitality be forcibly exacted for anyone belonging to my household or to any other. 5) and all the citizens of london and all their effect [goods] shall be exempt and free, both throughout england and in the seaports, from toll and fees for transit and market fees and all other dues. 6) and the churches and barons and citizens shall have and hold in peace and security their rights of jurisdiction [in civil and criminal matters] along with all their dues, in such a way that lessees who occupy property in districts under private jurisdiction shall pay dues to no one except the man to whom the jurisdiction belongs, or to the official whom he has placed there. 7) and a citizen of london shall not be amerced [fined by a court when the penalty for an offense is not designated by statute] to forfeiture of a sum greater than his wergeld, [hereby assessed as] 100 shillings, in a case involving money. 8) and further there shall be no miskenning [false plea causing a person to be summoned to court] in a husting [weekly court] or in a folkmote [meeting of the community], or in any other court within the city. 9) and the hustings [court] shall sit once a week on monday. 10) and i assure to my citizens their lands and the property mortgaged to them and the debts due to them both within the city and without. 11) and with regard to lands about which they have pled in suit before me, i shall maintain justice on their behalf, according to the law of the city. 12) and if anyone has exacted toll or tax from citizens of london, the citizens of london within the city shall [have the right to] seize [by process of law] from the town or village where the toll or tax was exacted a sum equivalent to that which the citizen of london gave as toll and hence sustained as loss. 13) and all those who owe debts to citizens shall pay them or shall clear themselves in london from the charge of being in debt to them. 14) but if they have refused to pay or to come to clear themselves, then the citizens to whom they are in debt shall [have the right to] seize [by process of law] their goods [including those in the hands of a third party, and bring them] into the city from the [town, village or] county in which the debtor lives [as pledges to compel appearance in court]. 15) and the citizens shall enjoy as good and full hunting rights as their ancestors ever did, namely, in the chilterns, in middlesex, and in surrey. witnessed at westminster." the above right not to take part in any case outside the city relieved london citizens from the burden of traveling to wherever the king's court happened to be, the disadvantage of not knowing local customs, and the difficulty of speaking in the language of the king's court rather than in english. the right of redress for tolls exacted was new because the state of the law was that the property of the inhabitants was liable to the king or superior lord for the common debt. newcastle-on-tyne was recognized by the king as having certain customs, so the following was not called a grant: "these are the laws and customs which the burgesses of newcastle upon tyne had in the time of henry king of england and ought to have. [1] burgesses can distrain [take property of another until the other performs his obligation] upon foreigners within, or without their own market, within or without their own houses, and within or without their own borough without the leave of the reeve, unless the county court is being held in the borough, and unless [the foreigners are] on military service or guarding the castle. [2] a burgess cannot distrain upon a burgess without the leave of the reeve. [3] if a burgess have lent anything of his to a foreigner, let the debtor restore it in the borough if he admits the debt, if he denies it, let him justify himself in the borough. [4] pleas which arise in the borough shall be held and concluded there, except pleas of the crown. [5] if any burgess be appealed [sued] of any plaint, he shall not plead without the borough, unless for default of [the borough] court. [6] nor ought he to answer without day and term, unless he have fallen into 'miskenning' [error in pleading], except in matters which pertain to the crown. [7] if a ship have put in at tynemouth and wishes to depart, the burgesses may buy what they will [from it]. [8] if a plea arise between a burgess and a merchant, it shall be concluded before the third ebb of the tide. [9] whatever merchandise a ship has brought by sea must be landed, except salt; and herring ought to be sold in the ship. [10] if any man have held land in burgage for a year and a day, lawfully and without claim, he shall not answer a claimant, unless the claimant have been without the realm of england, or a child not of age to plead. [11] if a burgess have a son, he shall be included in his father's freedom if he be with his father. [12] if a villein come to dwell in the borough, and dwell there a year and a day as a burgess, he shall abide altogether, unless notice has been given by him or by his master that he is dwelling for a term. [13] if any man appeal [sue] a burgess of any thing, he cannot do [trial by] battle with the burgess, but the burgess shall defend himself by his law, unless it be of treason, whereof he is bound to defend himself by [trial by] battle. [14] neither can a burgess do [trial by] battle against a foreigner, unless he first go out of the borough. [15] no merchant, unless he be a burgess, may buy [outside] the town either wool or leather or other merchandise, nor within the borough except [from] burgesses. [16] if a burgess incur forfeit, he shall give six ounces [10s.] to the reeve. [17] in the borough there is no merchet [payment for marrying off a daughter] nor heriot nor bloodwite [fine for drawing blood] nor stengesdint [fine for striking with a stick]. [18] every burgess may have his own oven and handmill if he will, saving the right of the king's oven. [19] if a woman be in forfeit for bread or beer, no one ought to interfere but the reeve. if she forfeit twice, she shall be chastised by her forfeit. if three times, let justice be done on her. [20] no one but a burgess may buy webs [woven fabrics just taken off the loom] to dye, nor make nor cut them. [21] a burgess may give and sell his land and go whither he will freely and quietly unless there be a claim against him." the nation produced sufficient iron, but a primitive steel [iron with carbon added] was imported. it was scarce and expensive. steel was used for tools, instruments, weapons and armor. ships could carry about 300 people. navigation was by simple charts that included wind direction for different seasons and the direction of north. the direction of the ship could be generally determined when the sky was clear by the position of the sun during the day or the north star during the night. plays about miracles wrought by holy men or saints or the sufferings and fortitude of martyrs were performed, usually at the great church festivals. most nobles could read, though writing was still a specialized craft. there were books on animals, plants, and stones. the lives of the saints as told in the book "the golden legend" were popular. the story of the early king arthur was told in the book "the history of the kings of england". the story at this time stressed arthur as a hero and went as follows: arthur became king at age 15. he had an inborn goodness and generosity as well as courage. he and his knights won battles against foreign settlers and neighboring clans. once, he and his men surrounded a camp of foreigners until they gave up their gold and silver rather than starve. arthur married guenevere and established a court and retinue. leaving britain in the charge of his nephew modred, he fought battles on the continent for land to give to his noblemen who did him service in his household and fought with him. when arthur returned to britain, he made battle with his nephew modred who had crowned himself king. arthur's knight gawain, the son of his sister, and the enemy modred were killed and arthur was severely wounded. arthur told his kinsman constantine to rule britain as king in his place. the intellectual world included art, secular literature, law, and medicine. there were about 90 physicians. the center of government was a collection of tenants-in-chief, whose feudal duty included attendance when summoned, and certain selected household servants of the king. the exchequer became a separate body. the payments in kind, such as grain or manual services, from the royal demesnes had been turned into money payments. the great barons made their payments directly to the exchequer. the income from royal estates was received by the exchequer and then commingled with the other funds. each payment was indicated by notches on a stick, which was then split so that the payer and the receiver each had a half showing the notches. the exchequer was the great school for training statesmen, justices, and bishops. the chancellor managed the domestic matters of the crown's castles and lands. the great offices of state were sold for thousands of pounds, which caused their holders to be on their best behavior for fear of losing their money by being discharged from office. one chancellor paid henry about 3000 pounds for the office. henry brought sheriffs under his strict control, free from influence by the barons. he maintained order with a strong hand, but was no more severe than his security demanded. forests were still retained by kings for their hunting of boars and stags. a master forester maintained them. the boundaries of the royal forests were enlarged. they comprised almost one-third of the kingdom. certain inhabitants thereof supplied the royal foresters with meat and drink and received certain easements and rights of common therein. the forest law reached the extreme of severity and cruelty under henry i. punishments given included blinding, emasculation, and execution. offenders were rarely allowed to substitute a money payment. when fines were imposed they were heavy. a substantial number of barons and monasteries were heavily in debt to the jews. the interest rate was 43% (2d. per pound per week). the king taxed the jews at will. the law henry restored the death penalty (by hanging) for theft and robbery, but maintained william i's punishment of mutilation by blinding and severing of limbs for other offenses, for example, bad money. he decreed in 1108 that false and bad money should be amended, so that he who was caught passing bad denarii should not escape by redeeming himself but should lose his eyes and members. and since denarii were often picked out, bent, broken, and refused, he decreed that no denarius or obol, which he said were to be round, or even a quadrans, if it were whole, should be refused. (money then reached a higher level of perfection, which was maintained for the next century.) counterfeiting law required that "if any one be caught carrying false coin, the reeve shall give the bad money to the king however much there is, and it shall be charged in the render of his farm [payment] as good, and the body of the offender shall be handed over to the king for judgment, and the serjeants who took him shall have his clothes." the forest law stated that: "he that doth hunt a wild beast and doth make him pant, shall pay 10 shillings: if he be a freeman, then he shall pay double. if he be a bound man, he shall lose his skin." a "verderer" was responsible for enforcing this law, which also stated that: "if anyone does offer force to a verderer, if he be a freeman, he shall lose his freedom, and all that he hath. and if he be a villein, he shall lose his right hand." further, "if such an offender does offend so again, he shall lose his life." a wife's dower is one-third of all her husband's freehold land, unless his endowment of her at their marriage was less than onethird. debts to townsmen were recoverable by this law: "if a burgess has a gage [a valuable object held as security for carrying out an agreement] for money lent and holds this for a whole year and a day, and the debtor will not deny the debt or deliver the gage, and this is proved, the burgess may sell the gage before good witnesses for as much as he can, and deduct his money from the sum. if any money is over he shall return it to the debtor. but if there is not enough to pay him, he shall take distress again for the amount that is lacking." past due rent in a borough was punishable by payment of 10s. as fine. judicial activity encouraged the recording of royal legislation in writing which both looked to the past and attempted to set down law current in henry's own day. the "liberi quadripartitus" aimed to include all english law of the time. this showed an awareness of the ideal of written law as a statement of judicial principles as well as of the practice of kingship. in this way, concepts of roman law used by the normans found their way into english law. church law provided that only consent between a man and woman was necessary for marriage. there needn't be witnesses, ceremony, nor consummation. consent could not be coerced. penalties in marriage agreements for not going through with the marriage were deemed invalid. villeins and slaves could marry without their lords' or owners' permission. a couple living together could be deemed married. persons related by blood within certain degrees, which changed over time, of consanguinity were forbidden to marry. this was the only ground for annulment of a marriage. a legal separation could be given for adultery, cruelty, or heresy. annulment, but not separation, could result in remarriage. fathers were usually ordered to provide some sustenance and support for their illegitimate children. the court punished infanticide and abortion. counterfeiters of money, arsonists, and robbers of pilgrims and merchants were to be excommunicated. church sanctuary was to be given to fugitives of violent feuds until they could be given a fair trial. judicial procedure courts extant now are the royal court, the king's court of the exchequer, county courts, and hundred courts, which were under the control of the king. his appointed justices administered justice in these courts on regular circuits. the sheriff now only produced the proper people and preserved order at the county courts and presided over the nonroyal pleas and hundred courts. he impaneled recognitors, made arrests, and enforced the decisions of the royal courts. also there are manor courts, borough courts, and ecclesiastical courts. in the manor courts, the lord's reeve generally presided. the court consisted of the lord's vassals and declared the customs and law concerning such offenses as failure to perform services and trespass on manorial woods, meadow, and pasture. the king's royal court heard issues concerning the crown and breaches of the king's peace, which included almost all criminal matters. the most serious offenses: murder, robbery, rape, abduction, arson, treason, and breach of fealty, were now called felonies. other offenses were: housebreaking, ambush, certain kinds of theft, premeditated assault, and harboring outlaws or excommunicants. henry personally presided over hearings of important legal cases. he punished crime severely. offenders were brought to justice not only by the complaint of an individual or local community action, but by official prosecutors. a prosecutor was now at trials as well as a justice. trial is still by compurgation. trial by combat was relatively common. these offenses against the king placed merely personal property and sometimes land at the king's mercy. thus the crown increased the range of offenses subject to its jurisdiction and arrogated to itself profits from the penalties imposed. a murderer could be given royal pardon from the death penalty so that he could pay compensation to the relatives. the royal court also heard these offenses against the king: fighting in his dwelling, contempt of his writs or commands, encompassing the death or injury of his servants, contempt or slander of the king, and violation of his protection or his law. it heard these offenses against royal authority: complaints of default of justice or unjust judgment, pleas of shipwrecks, coinage, treasure trove [money buried when danger approached], forest prerogatives, and control of castle building. slander of the king, the government, or high officials was punishable as treason, felony, misprision of treason, or contempt, depending on the rank and office of the person slandered and the degree of guilt. henry began the use of writs to intervene in civil matters, such as inquiry by oath and recognition of rights as to land, the obligations of tenure, the legitimacy of heirs, and the enforcement of local justice. the crown used its superior coercive power to enforce the legal decisions of other courts. these writs allowed people to come to the royal court on certain issues. there was a vigorous interventionism in the land law subsequent to appeals to the king in landlord-tenant relations, brought by a lord or by an undertenant. assizes [those who sit together] of local people who knew relevant facts were put together to assist the court. henry appointed some locally based justices, called justiciars. also, he sent justices out on eyres [journeys] to hold assizes. this was done at special sessions of the county courts, hundred courts, and manor courts. records of the verdicts of the royal court were sent with these itinerant justices for use as precedent in these courts. thus royal authority was brought into the localities and served to check baronial power over the common people. these itinerant justices also transacted the local business of the exchequer in each county. henry created the office of chief justiciar, which carried out judicial and administrative functions. the royal court retained cases of gaol delivery [arrested person who had been held in gaol was delivered to the court] and amercements. it also decided cases in which the powers of the popular courts had been exhausted or had failed to do justice. the royal court also decided land disputes between barons who were too strong to submit to the county courts. the king's court of the exchequer reviewed the accounts of sheriffs, including receipts and expenditures on the crown's behalf as well as sums due to the treasury, located still at winchester. these sums included rent from royal estates, the danegeld land tax, the fines from local courts, and aid from baronial estates. its records were the "pipe rolls", so named because sheets of parchment were fastened at the top, each of which dropped into a roll at the bottom and so assumed the shape of a pipe. the county and hundred courts assessed the personal property of individuals and their taxes due to the king. the county court decided land disputes between people who had different barons as their respective lords. the free landholders were expected to attend county, hundred, and manor courts. they owed "suit" to it. the suitors found the dooms [laws] by which the presiding officer pronounced the sentence. the county courts heard cases of theft, brawling, beating, and wounding, for which the penalties could be exposure in the pillory or stocks. the pillory held an offender's head and hands in holes in boards, and the stocks held one's hands and feet. here the public could scorn and hit the offender or throw fruit, mud, and dead cats at him. for sex offenders and informers, stones were usually thrown. sometimes a person was stoned to death. the county courts met twice yearly. if an accused failed to appear after four successive county courts, he was declared outlaw at the fifth and forfeited his civil rights and all his property. he could be slain by anyone at will. the hundred court met once a month to hear neighborhood disputes, for instance concerning pastures, meadows and harvests. usually present was a priest, the reeve, four representative men, and sometimes the lord or his steward in his place. sometimes the chief pledges were present to represent all the men in their respective frankpledges. the bailiff presided over all these sessions except two, in which the sheriff presided over the full hundred court to take the view of frankpledge, which was required for those who did not have a lord to answer for him. the barons held court on their manors at a "hallmote" for issues arising between people living on the manor, such as bad ploughing on the lord's land or letting a cow get loose on the lord's land, and land disputes. this court also made the decision of whether a certain person was a villein or freeman. the manor court took over issues which had once been heard in the vill or hundred court. the baron charged a fee for hearing a case and received any fines he imposed, which amounted to significant "profits of justice". boroughs held court on trading and marketing issues in their towns such as measures and weights, as well as issues between people who lived in the borough. the borough court was presided over by a reeve who was a burgess as well as a royal official. wealthy men could employ professional pleader-attorneys to advise them and to speak for them in a court. the ecclesiastical courts dealt, until the time of henry viii, with family matters such as marriage, annulments, marriage portions, legitimacy, undue wifebeating, child abuse, orphans, bigamy, adultery, incest, fornication, personal possessions, defamation, slander which did not cause material loss (and therefore had no remedy in the temporal courts), libel, perjury, usury, mortuaries, sacrilege, blasphemy, heresy, tithe payments, church fees, certain offenses on consecrated ground, and breaches of promises under oath, e.g. to pay a debt, provide services, or deliver goods. they decided inheritance and will issues which did not concern land, but only personal property. this developed from the practice of a priest usually hearing a dying person's will as to the disposition of his goods and chattel when he made his last confession. it provided guardianship of infants during probate of their personal property. trial was basically by compurgation, with oath-helpers swearing to or against the veracity of the alleged offender's oath. an alleged offender could be required to answer questions under oath, thus giving evidence against himself. the ecclesiastical court's penalties were intended to reform and determined on a case-by-case basis. the canon law of christendom was followed, without much change by the english church or nation. penalties could include confession and public repentance of the sin before the parish, making apologies and reparation to persons affected, public embarrassment such as being dunked in water (e.g. for women scolds), walking a route barefoot and clad only in one's underwear, whippings, extra work, fines, and imprisonment in a "penitentiary" to do penance. the ultimate punishment was excommunication with social ostracism. then no one could give the person drink, food, or shelter and he could speak only to his spouse and servants. excommunication included denial of the sacraments of baptism, penance, mass, and extreme unction [prayers for spiritual healing] at death; which were necessary for salvation of the soul; and the sacrament of confirmation of one's belief in the tenets of christianity. a person could also be denied a christian burial in consecrated ground. however, the person could still marry and make a will. the king's court could order a recalcitrant excommunicant imprisoned until he satisfied the claims of the church. excommunication was usually imposed for failure to obey an order or showing contempt of the law or of the courts. it required a hearing and a written reason. if this measure failed, it was possible to turn the offender over to the state for punishment, e.g. for blasphemy or heresy. blasphemy [speaking ill of god] was thought to cause god's wrath expressed in famine, pestilence, and earthquake and was usually punished by a fine or corporal punishment, e.g. perforation or amputation of the tongue. it was tacitly understood that the punishment for heresy was death by burning. there were no heresy cases up to 1400 and few after that. the state usually assured itself the sentence was just before imposing it. the court of the rural dean was the ecclesiastical parallel of the hundred court of secular jurisdiction and usually had the same land boundaries. the archdeacons, who had been ministers of the bishop in all parts of his diocese alike, were now each assigned to one district, which usually had the same boundaries as the county. henry acknowledged occasional appellate authority of the pope, but expected his clergy to elect bishops of his choice. there was a separate judicial system for the laws of the forest. there were itinerant justices of the forests and four verderers of each forest county, who were elected by the votes of the full county court, twelve knights appointed to keep vert [everything bearing green leaves] and venison, and foresters of the king and of the lords who had lands within the limits of the forests. every three years, the officers visited the forests in preparation for the courts of the forest held by the itinerant justices. the inferior courts were the woodmote, held every forty days, and the swein [freeman or freeholder within the forest] mote, held three times yearly before the verderers as justices, in which all who were obliged to attend as suitors of the county court to serve on juries and inquests were to be present. chapter 6 the times: 1154-1215 king henry ii and queen eleanor, who was twelve years older, were both intelligent, educated, energetic, well-traveled, and experienced in affairs of state. henry was the first norman king to be fully literate and he learned latin. he had many books and maintained a school. eleanor often served as regent during henry's reign and the reigns of their two sons: richard i, the lionhearted, and john. she herself headed armies. henry ii was a modest, courteous, and patient man with an astonishing memory and strong personality. he was indifferent to rank and impatient of pomp to the point of being careless about his appearance. he usually dressed in riding clothes and was often unkempt. he was thrifty, but generous to the poor. he was an outstanding legislator and administrator. henry ii took the same coronation oath as edward the confessor regarding the church, laws, and justice. not only did he confirm the charter of his grandfather henry i, but he revived and augmented the laws and institutions of his grandfather and developed them to a new perfection. almost all legal and fiscal institutions appear in their first effective form during his reign. for instance, he institutionalized the assize for a specific function in judicial proceedings, whereas before it had been an ad hoc body used for various purposes. the term "assize" here means the sitting of a court or council. it came to denote the decisions, enactments, or instructions made at such. henry's government practiced a strict economy and he never exploited the growing wealth of the nation. he abhorred bloodshed and the sacrifice of men's lives. so he strove diligently to keep the peace, when possible by gifts of money, but otherwise with armed force. robbers were hanged and any man who raped a woman was castrated. foreign merchants with precious goods could journey safely through the land from fair to fair. these fairs were usually held in the early fall, after harvesting and sheep shearing. foreign merchants bought wool cloth and hides. frankpledge was revived, now applying to the unfree and villeins. no stranger could stay overnight (except for one night in a borough), unless sureties were given for his good behavior. a list of such strangers was to be given to itinerant justices. henry had character and the foresight to build up a centralized system of government that would survive him. he learned about the counties' and villages' varying laws and customs. then, using the model of roman law, he gave to english institutions that unity and system which in their casual patchwork development had been lacking. henry's government and courts forged permanent direct links between the king and his subjects which cut through the feudal structure of lords and vassals. he developed the methods and structure of government so that there was a great increase in the scope of administrative activity without a concurrent increase of personal power of the officials who discharged it. the government was self-regulating, with methods of accounting and control which meant that no official, however exalted, could entirely escape the surveillance of his colleagues and the king. at the same time, administrative and judicial procedures were perfected so that much which had previously required the king's personal attention was reduced to routine. the royal household translated the royal will into action. in the early 1100s, there had been very little machinery of central government that was not closely associated with the royal household. there was a chief justiciar for legal matters and a treasurer. royal government was largely built upon what had once been purely domestic offices. kings had called upon their chaplains to pen letters for them. by henry ii's reign, the chancery was a highly efficient writing office through which the king's will was expressed in a flow of writs, and the chancellor an important and highly rewarded official, but he was still responsible for organizing the services in the royal chapel. similarly, the chamberlains ran the household's financial departments. they arranged to have money brought in from a convenient castle treasury, collected money from sheriffs or the king's debtors, arranged loans with the usurers, and supervised the spending of it. it was spent for daily domestic needs, the king's almsgiving, and the mounting of a military campaign. but they were still responsible for personal attendance upon the king in his privy chamber, taking care of his valuable furs, jewels, and documents, and changing his bed linens. there were four other departments of the household. the steward presided over the hall and kitchens and was responsible for supplying the household and guests with food supplies. the butler had duties in the hall and cellars and was responsible for the supply of wine and ale. the marshall arranged lodgings for the king's court as it moved about from palaces to hunting lodges, arranged the pay of the household servants, and supervised the work of ushers, watchmen, fire tenders, messengers and huntsmen. the constable organized the bodyguard and escorts, arranged for the supply of castles, and mustered the royal army. the offices of steward, constable, chamberlain, butler were becoming confined to the household and hereditary. the justiciar, chancellor, and treasurer are becoming purely state offices. they were simply sold or rented, until public pressure resulted in a requirement of ability. henry's council included all his tenants-in-chief, which included archbishops, bishops, abbots, priors, earls, barons, knights and socage tenants of the crown, whether they made payments directly to him or through a sheriff. the higher ones were served with a writ addressed to them personally. knights and below were summoned by a general writ to the sheriff. henry brought order and unity by making the king's royal court the common court of the land. its purpose was to guard the king's peace by protecting all people of free status throughout the nation and correct the disparity in punishments given by local courts. heretofore, the scope of the king's peace had varied to cover as little as the king's presence, his land, and his highway. the royal demesne had shrunk to about 5% of the land. the common law for all the nation was established by example of the king's royal court. henry erected a basic, rational framework for legal processes which drew from tradition but lent itself to continuous expansion and adaptation. a system of writs originated well-defined actions in the royal courts. each court writ had to satisfy specific conditions for this court to have jurisdiction over an action or event. this system determined the royal court's jurisdiction over the church, lords, and sheriffs. it limited the jurisdiction of all other courts and subordinated them to the royal court. inquests into any misdeeds of sheriffs were held, which could result in their dismissal. henry and eleanor spoke many languages and liked discussing law, philosophy, and history. so they gathered wise and learned men about them, who became known as courtiers, rather than people of social rank. they lived in the great and strong tower of london, which had been extended beyond the original white tower, as had other castles, so that the whole castle and grounds were defended instead of just the main building. the tower of london was in the custody of one of the two justiciars. on the west were two strongly fortified castles surrounded by a high and deeply entrenched wall, which had seven double gates. towers were spaced along the north wall and the thames river flowed below the south wall. to the west was the city, where royal friends had residences with adjoining gardens near the royal palace at westminster. the court was a center of culture as well as of government. the game of backgammon was played. people wore belts with buckles, usually brass, instead of knotting their belts. london extended about a mile along the thames and about half a mile inland. it had narrow twisting lanes, some with a ditch down the middle for water runoff. most of its houses were two stories, the ground floor having booths and workshops, and the upper floor living space. most of the houses were wooden structures. the richer merchants' and knights' houses were built of stone. walls between houses had to be stone to a height of 16 feet and thatched roofs were banned because there had been many fires. there was poor compliance, but some roofs were tiled with red brick tiles. the population was about 40,000. there were over 126 churches for public worship, thirteen monasteries (including nunneries), and st. paul's cathedral. all were built of stone. the churches gave a place of worship for every 300 inhabitants and celebrated feast days, gave alms and hospitality to strangers, confirmed betrothals or agreements of marriage, celebrated weddings, conducted funerals, and buried the dead. the synod of westminster of 1175 prescribed that all marriages were to be performed by the church. church law required a warning prior to suspension or excommunication. monastic, cathedral, and parish schools taught young boys grammar so they could sing and read in church services. nuns taught girls. fish but no meat was eaten on fridays. there was dark rye bread and expensive white wheat bread. vegetables included onions, leeks, and cabbage. fruits included apples, pears, plums, cherries, and strawberries. water was obtained from streams running through the town to the thames and from springs. only the rich, palaces, and churches could afford beeswax candles; others had homemade tallow [cow or sheep fat] candles which smelled and gave off smoke. most people washed their bodies. even the poor had beds and bed clothes. the beds were often shared. few babies survived childhood. if a man reached 30, he could expect to live until age 50. thousands of londoners died during a hot summer from fevers, plague and the like. in london, bells heralded the start and finish of all organized business. the sellers of merchandise and hirers of labor were distributed every morning into their several localities according to their trade. vendors, craftsmen, and laborers had their customary places. some vendors walked the streets announcing their wares for sale. there were craft guilds of bakers, butchers, cloth workers, and saddlers, as well as of weavers. vendors on the thames river bank sold cooked fish caught from the river and wine from ships and wine cellars. cook shops sold roasted meats covered with hotly spiced sauces. london bridge was built of stone for the first time. it was supported by a series of stone arches standing on small man-made islands. it had such a width that a row of wood houses and a chapel was built on top of it. in the spring it was impassable by ships because the flow of water under it varied in height on either side of the bridge by several feet at half tide. the bridge had the effect of slowing down the flow upstream, which invited wherries and rowboats and stately barges of the nobility. in winters in which it froze over, there was ice skating, ice boating, and fishing through holes in the ice. outside each city gate were clusters of ragged buildings, small monasteries and hostelries, groups of huntsmen's kennels, and fencing schools. outside one of the gates, a horse market was held every week. horses wore horseshoes made of iron or of a crude steel. from the southwest gate of the city along the north river bank toward westminster, there was a gradually extending line of rich men's mansions and bishops' palaces. on the southern bank of the thames river was growing the disorderly suburb of southwark, with fishermen's and boatmens' hovels, and taverns and brothels that were frequented by drunkards, rakes, and whores. on the north side of the city was a great forest with fields and wells where students and other young men from the city took walks in the fresh evening air. in some fields, country folk sold pigs, cows, oxen and sheep. mill wheels turned at various streams. near london in the country was a glass factory. at sunset, the gates of london were closed for the night. all taverns had to be closed, all lights put out, and all fires banked or covered when the bell of the church of st. martin le grand rang at 9:00 p.m. anyone found on the streets after this curfew could be arrested. gangs of young nobles or gangs of thieves, cutpurses, and looters roamed the streets after dark and sometimes rioted. offenders were often beheaded and their heads placed on spikes on london bridge. men in london had begun weaving cloth, which formerly had been done by women. some of the cloth was exported. the weavers guild of london received a charter by the king in 1155, the first granted to any london craft: "know that i have conceded to the weavers of london to hold their guild in london with all the liberties and customs which they had in the time of king henry [i], my grandfather; and that none may intermeddle with the craft within the city, nor in southwark, nor in other places pertaining to london except through them and except he be in their guild, otherwise than was accustomed to be done in the time of king henry, my grandfather ...so that each year they render thence to me two marks [26s.8d.] of gold at the feast of st. michael. and i forbid that any shall do injury or contumely to them on this account under penalty of 10 pounds [200s.]. witness t[homas], chancellor, and warinus, son of gerard, chamberlain, at winchester." the liberties obtained were: 1) the weavers may elect bailiffs to supervise the work of the craft, to punish defaulters, and to collect the ferm [amount owed to the king]. the bailiffs were chosen from year to year and swore before the mayor of london to do and keep their office well and truly. 2) the bailiffs may hold court from week to week on pleas of debt, agreements, covenants [promises for certain performance], and minor trespasses. 3) if any of the guild members are sued in any other court on any of the above pleas, the guild may challenge that plea to bring it to the guild court. 4) if any member is behind in his share of the payment to the king, the bailiffs may distrain his loom until he has paid this. the weavers' guild punished members who used bad thread in their weaving or did defective weaving by showing the default to the mayor, with opportunity for the workman to make entreaty, and the mayor and twelve members of the guild then made a verdict of amercement of 1/2 mark [6s.8d.] and the workman of the cloth was also punished by the guild bailiffs according to guild custom.the weavers' guild tradition of brotherliness among members meant that injury to a fellow weaver incurred a severe penalty. if a weaver stole or eloigned [removed them to a distance where they were unreachable] any other weaver's goods falsely and maliciously, then he was dismissed from the guild and his loom was taken by the guild to fulfill his portion of the annual payment to the king. the weavers were allowed to buy and to sell in london freely and quietly. they had all the rights of other freemen of the city. paying an annual payment freed the weavers from liability to inconsequent royal fines. failure to make this payment promptly might have led to loss of the right, hence the rigorous penalty of distraint upon the looms of individual weavers who fell into arrears. thus from the middle of the 1100s, the weavers enjoyed the monopoly of their craft, rights of supervision which ensured a high standard of workmanship, power to punish infractions of their privileges, and full control of their members. in this they stand as the prototype of english medieval guilds. these rights represented the standard which all bodies of craftsmen desired to attain. the right of independent jurisdiction was exceptional. in henry ii's charter to london, london did not retain its right to appoint its own sheriff and justice given by henry i. london's chief magistrate was the mayor, who was appointed by the king, until 1191. then the mayor was elected yearly by the aldermen of the city wards and approved by the king. he was typically a rich prince chosen by the barons and chief merchants of london. the commoners had no voice in his selection, but they could still approve or disapprove of the actions of the city government at ward and folk motes. at certain periods, a king asserted royal power over the selection of mayor and governance of the city. there were three ways to become a citizen of london: being the son of a citizen, apprenticeship in a craft for seven years, and purchase of citizenship. london and westminster growth led to their replacing winchester as the capital. st. barthomew infirmary was established in london for the care of sick pilgrims traveling to the shrine of becket in canterbury. it had been inspired by a monk who saw a vision of st. barthomew telling him to build a church and an infirmary. trading was facilitated by the stabilization of the amount of silver metallic content of the english coinage, which was called "sterling" [strong] silver. the compass, a magnetic lodestone [leading stone] needle mounted on a cork and floated in a bowl of water, assisted the navigation of ships. with it, one could tell the general direction of a ship when the skies were cloudy as well as clear. and one could generally track one's route by using the direction and speed of travel to calculate one's new position. london became a major trading center for foreign goods from many lands. about 5% of the knights were literate. wealthy men sent their sons to school in monasteries to prepare them for a livelihood in a profession or in trade or to the town of oxford, whose individual scholars had migrated from paris and had attracted disciples for a long time. these schools grew up around st. mary's church, but had not been started by the church as there was no cathedral school in oxford. oxford had started as a burh and had a royal residence and many tradesmen. it was given its basic charter in 1155 by the king. this confirmed to it all the customs, laws and liberties [rights] as those enjoyed by london. it became a model charter for other towns. bachelors at oxford studied the arts of grammar, rhetoric, and logic, and then music, arithmetic, geometry, and astronomy, until they mastered their discipline and therefore were authorized to teach it. teaching would then provide an income sufficient to support a wife. the master of arts was analogous to the master craftsman of a guild. from 1190, the civil law was studied, and shortly thereafter, canon law. later came the study of medicine. the use of paper supplemented the use of parchment for writing. irregular edged paper was made from linen, cotton, straw, and/or wood beaten to a pulp and then spread out over a wire mesh to dry. theologicians taught that the universe was made for the sake and service of man, so man was placed at the center of the universe. man was made for the sake and service of god. every freeman holding land of a lord gave homage and fealty to him, swearing to bear him faith of the tenement held and to preserve his earthly honor in all things, saving the faith owed to the king. homage was done for lands, for free tenements, for services, and for rents precisely fixed in money or in kind. homage could be done to any free person, male or female, adult or minor, cleric or layman. a man could do several homages to different lords for different fees, but there had to be a chief homage to that lord of whom he held his chief tenement. homage was not due for dower, from the husband of a woman to whom a tenement was given as a marriage portion, for a fee given in free alms, or until the third heir, either for free maritagium [a marriage portion which is given with a daughter in marriage, that is not bound to service] or for the fee of younger sisters holding of the eldest. all fiefs to be inherited by the eldest son had to be intact. every lord could exact fealty from his servants. in this era, the english national race and character was formed. only a few barons still had lands in normandy. stories of good king arthur were popular and set ideals for behavior and justice in an otherwise barbaric age where force was supreme. his last battle in which he lay wounded and told a kinsman to rule in his place and uphold his laws was written in poem ("layamon's brut"). romantic stories were written and read in english. the custom of "bundling" was started by ladies with their knights, who would lie together in bed without undressing and with one in a sack the top of which was tied around his neck, as part of a romantic courtship. wealthy men often gave their daughters dowries in case they were widowed. this might be matched by a marriage settlement by a prospective husband. intermarriage had destroyed any distinction of normans by look or speech alone, except for the anglo-saxon manor villeins, who worked the farm land and composed about two-thirds of the population. villeins were bound to the land and could, on flight, be brought back to it. they could not give homage, but could give fealty. a villein had the equipment to farm, fish, make cheese, keep poultry, brew beer, hedge, and cut wood. although the villeins could not buy their freedom or be freed by their lord, they became less numerous because of the preference of landholders for tenants motivated to perform work by potential loss of tenure. also, the crown's protection of all its subjects in criminal matters blurred the distinction between free and unfree men. the boroughs were dominated by lords of local manors, who usually had a house in the borough. similarly, burgesses usually had farmland outside the borough. many boroughs were granted, by the king or manor lord, the right to have a common seal for the common business of the town. some boroughs were given the authority to confer freedom on the villein by enrolling him in their guild or allowing him to stay in the borough for a year and a day. the guilds met frequently in their drinking halls and drew up regulations for the management of their trade. each borough was represented by twelve reputable burgesses. each vill was represented by a reeve and four reputable men. certain towns sponsored great seasonal fairs for special goods, such as cloth. about 5% of the population lived in towns. in the early 1180s, the horizontal-axle windmill was invented, probably in eastern england, on the analogy of the horizontal-axle watermill. it was very useful in flat areas where streams were too slow for a watermill unless a dam were built. but a dam often flooded agricultural land. some watermill wheels were moved by tidal currents. london guilds of craftsmen such as weavers, fullers, bakers, loriners (makers of bits, spurs, and metal mountings of bridles and saddles), cordwainers (makers of leather goods such as shoes), pepperers, and goldsmiths were licensed by the king, for which they paid him a yearly fee. there were also five bridge guilds (probably raising money for the future construction of london bridge in stone) and st. lazarus' guild. the wealthy guilds, which included the goldsmiths, the pepperers, and three bridge guilds had landholding members who had been thegns or knights and now became a class of royal officials: the king's minters, his chamberlain, his takers of wines, his collectors of taxes. the weavers of oxford paid 27s. [two marks] to have a guild. the shoemakers paid 67s. [five marks]. in 1212, master carpenters, masons, and tilers made 3d. per day, their servers (the journeymen of a later time) made 1 1/2 d., free stone carvers 2 1/2 d., plasterers and daubers, diggers and sievers less. all received food in addition or 1 1/2 d. in its stead. sandwich was confirmed in its port rights by this charter: "henry ii to his sheriff and bailiffs of kent, greeting. i will and order that the monks of the holy trinity of canterbury shall have fully all those liberties and customs in sandwich which they had in the time of king henry my grandfather, as it was adjudged in pursuance of his command by the oath of twelve men of dover and twelve men of sandwich, to wit, that the aforesaid monks ought to have the port and the toll and all maritime customs in the same port, on either side of the water from eadburge gate as far as markesfliete and a ferryboat for passage. and no man has there any right except they and their ministers. wherefore i will and firmly command you and the men of sandwich that ye cause the aforesaid monks to have all their customs both in the port and in the town of sandwich, and i forbid any from vexing them on this account.and they shall have my firm peace." henry gave this charter to the town of bristol in 1164: "know ye, that i have granted to my burgesses of bristol, that they shall be quit both of toll [a reasonable sum of money or portion of the thing sold, due to the owner of the fair or market on the sale of things tollable therein. it was claimed by the lord of the fee where the fair or market was held, by virtue of a grant from the crown either ostensible or presumed] and passage [money paid for crossing a river or for crossing the sea as might be due to the crown] and all custom [customary payments] throughout my whole land of england, normandy, and wales, wherever they shall come, they and their goods. wherefore i will and strictly command, that they shall have all their liberties and acquittances and free customs fully and honorable, as my free and faithful men, and that they shall be quit of toll and passage and of every other customs: and i forbid any one to disturb them on this account contrary to this my charter, on forfeiture of ten pounds [200s.]." john, when he was an earl and before he became king, granted these liberties to bristol about 1188: 1) no burgess may sue or be sued out of bristol. 2) the burgesses are excused from the murder fine (imposed by the king or lord from the hundred or town where the murder was committed when the murderer had not been apprehended). 3) no burgess may wage duel [trial by combat], unless sued for death of a stranger. 4) no one may take possession of a lodging house by assignment or by livery of the marshall of the earl of gloucester against the will of the burgesses (so that the town would not be responsible for the good behavior of a stranger lodging in the town without first accepting the possessor of the lodging house). 5) no one shall be condemned in a matter of money, unless according to the law of the hundred, that is, forfeiture of 40s. 6) the hundred court shall be held only once a week. 7) no one in any plea may argue his cause in miskenning. 8) they may lawfully have their lands and tenures and mortgages and debts throughout my whole land, [from] whoever owes them [anything]. 9) with regard to debts which have been lent in bristol, and mortgages there made, pleas shall be held in the town according to the custom of the town. 10) if any one in any other place in my land shall take toll of the men of bristol, if he does not restore it after he is required to, the prepositor of bristol may take from him a distress at bristol, and force him to restore it. 11) no stranger tradesman may buy within the town from a man who is a stranger, leather, grain, or wool, but only from a burgess. 12) no stranger may have a shop, including one for selling wine, unless in a ship, nor shall sell cloth for cutting except at the fair. 13) no stranger may remain in the town with his goods for the purpose of selling his goods, but for forty days. 14) no burgess may be confined or distrained any where else within my land or power for any debt, unless he is a debtor or surety (to avoid a person owed a debt from distraining another person of the town of the debtor). 15) they shall be able to marry themselves, their sons, their daughters and their widows, without the license of their lords. (a lord had the right of preventing his tenants and their families from marrying without his consent.) 16) no one of their lords shall have the wardship or the disposal of their sons or daughters on account of their lands out of the town, but only the wardship of their tenements which belong to their own fee, until they become of age. 17) there shall be no recognition [acknowledgment that something done by another person in one's name had one's authority] in the town. 18) no one shall take tyne [wooden barrel with a certain quantity of ale, payable by the townsmen to the constable for the use of the castle] unless for the use of the lord earl, and that according to the custom of the town. 19) they may grind their grain wherever they may choose. 20) they may have their reasonable guilds, as well or better than they had them in the time of robert and his son william [john's wife's grandfather and father, who were earls of gloucester when the town and castle of bristol were part of the honor of gloucester]. 21) no burgess may be compelled to bail any man, unless he himself chooses it, although he may be dwelling on his land. we have also granted to them all their tenures, messuages [dwelling house with adjoining land and adjacent buildings], in copses [thicket from which wood was cut], in buildings on the water or elsewhere to be held in free burgage [tenant to pay only certain fixed services or payments to his lord, but not military service (like free socage)]. we have granted also that any of them may make improvements as much as he can in erecting buildings anywhere on the bank and elsewhere, as long as the borough and town are not damaged thereby. also, they shall have and possess all waste land and void grounds and places, to be built on at their pleasure. newcastle-on-tyne's taxes were simplified in 1175 as follows: "know ye that i have granted and by this present charter have confirmed to my burgesses of newcastle upon tyne, and to all their things which they can assure to be their own, acquittance from toll and passage and pontage and from the hanse and from all other customs throughout all my land. and i prohibit all persons from vexing or disturbing them therein upon forfeiture to me." we grant to our upright men on newcastle-on-tyne and their heirs our town of newcastle-on-tyne with all its appurtenances at fee farm for 100 pounds to be rendered yearly to us and our heirs at our exchequer by their own hand at the two terms, to wit, at easter 50 pounds and at michaelmas 50 pounds, saving to us our rents and prizes and assizes in the port of the same town. ranulph, earl of chester, made grants to his burgesses of coventry by this charter: "that the aforesaid burgesses and their heirs may well and honorably quietly and in free burgage hold of me and my heirs as ever in the time of my father and others of my ancestors they have held better more firmly and freer. in the second place i grant to them all the free and good laws which the burgesses of lincoln have better and freer. i prohibit and forbid my constables to draw them into the castle to plead for any cause, but they may freely have their portimote [leet court] in which all pleas belonging to me and them may be justly treated of. moreover they may choose from themselves one to act for me whom i approve, who a justice under me and over them may know the laws and customs, and keep them to my counsel in all things reasonable, every excuse put away, and may faithfully perform to me my rights. if any one happen to fall into my amercement he may be reasonably fined by my bailiff and the faithful burgesses of the court. furthermore, whatever merchants they have brought with them for the improvement of the town, i command that they have peace, and that none do them injury or unjustly send them into court. but if any foreign merchant shall have done anything improper in the town that same may be regulated in the portimote before the aforesaid justice without a suit at law." henry confirmed this charter of the earl's by 1189 as follows: i have confirmed all the liberties and free customs the earl of chester granted to them, namely, that the same burgesses may well and honorably hold in free burgage, as ever in the time of the father of the beforesaid earl, or other of his ancestors, they may have better or more firmly held; and they may have all the laws and customs which the citizens of lincoln have better and freer (e.g. their merchant guilds); all men brought to trade may be subject to the guild customs and assize of the town; those who lawfully hold land in the town for a year and a day without question and are able to prove that an accuser has been in the kingdom within the year without finding fault with them, from thence may hold the land well and in peace without pleading; those who have remained in the town a year and a day without question, and have submitted to the customs of the town and the citizens of the town are able to show through the laws and customs of the town that the accuser stood forth in the kingdom, and not a fault is found of them, then they may remain in peace in the town without question]; and that the constable of the aforesaid earl shall not bring them into the castle to plead in any case. but they may freely have their own portmanmote in which all pleas appertaining to the earl and to them may be justly treated of. moreover they may choose one from themselves to act for the earl, whom i approve, who may be a justice under the earl and over them, and who to the earl may faithfully perform his rights, and if anyone happen to fall into the earl's forfeiture he shall be acquit for 12 pence. if by the testimony of his neighbors he cannot pay 12 pence coins, by their advice it shall be so settled as he is able to pay, and besides, with other acquittances, that the burgesses shall not provide anything in corody [allowance in food] or otherwise whether for the said earl or his men, unless upon condition that their chattels shall be safe, and so rendered to them. furthermore, whatever merchants they have brought with them for the improvement of the town they may have peace, and none shall do them injury or unjustly send them into suit at law. but if any foreign merchant has done anything improper in the town that shall be amended [or tried] in the portmanmote before the aforesaid justice without a suit. and they who may be newcomers into the town, from the day on which they began to build in the town for the space of two years shall be acquit of all charges. mercantile privileges were granted to the shoemakers in oxford thus: "know ye that i have granted and confirmed to the corvesars of oxford all the liberties and customs which they had in the time of king henry my grandfather, and that they have their guild, so that none carry on their trade in the town of oxford, except he be of that guild. i grant also that the cordwainers who afterwards may come into the town of oxford shall be of the same guild and shall have the same liberties and customs which the corvesars have and ought to have. for this grant and confirmation, however, the corvesars and cordwainers ought to pay me every year an ounce of gold." a guild merchant for wool dominated and regulated the wool trade in many boroughs. in leicester, only guildsmen were permitted to buy and sell wool wholesale to whom they pleased or to wash their fells in borough waters. certain properties, such as those near running water, essential to the manufacture of wool were maintained for the use of guild members. the waterwheel was a technological advance replacing human labor whereby the cloth was fulled. the waterwheel turned a shaft which lifted hammers to pound the wet cloth in a trough. wool packers and washers could work only for guild members. the guild fixed wages, for instance to wool wrappers and flock pullers. strangers who brought wool to the town for sale could sell only to guild members. a guildsman could not sell wool retail to strangers nor go into partnership with a man outside the guild. each guild member had to swear the guildsman's oath, pay an entrance fee, and subject himself to the judgment of the guild in the guild court, which could fine or suspend a man from practicing his trade for a year. the advantages of guild membership extended beyond profit in the wool trade. members were free from the tolls that strangers paid. they alone were free to sell certain goods retail. they had the right to share in any bargain made in the presence of a guildsman, whether the transaction took place in leicester or in a distant market. in the general interest, the guild forbade the use of false weights and measures and the production of shoddy goods. it maintained a wool beam for weighing wool. it also forbade middlemen from profiting at the expense of the public. for instance, butchers' wives were forbidden from buying meat to sell again in the same market unless they cooked it. the moneys due to the king from the guilds of a town were collected by the town reeve. when the king wanted to raise an army, he summoned his major baron tenants-in-chief, who commanded their own armed dependent vassals, and he directed the sheriffs to command the minor tenants-in-chief and supply them with equipment. a baron could assemble an army in a day, but might use it to resist any perceived misgovernment by a king. armed conflict did not interfere much with daily life because the national wealth was still composed mostly of flocks and herds and simple buildings. machinery, furniture, and the stock of shops were still sparse. life would be back to normal within a week. henry wanted to check this power of the barons. so he took over or demolished their adulterine castles and restored the fyrd, which was a military draft of every freeman to serve in defense of the realm. at the king's call, barons were to appear in mail suit and helmet with sword and horse, knights and freeholders with 213s.[16 marks] of rent or chattels in coat of mail with shield and lance, freeholders of 133s.[10 marks] with lance and hauberk [coat of armor] and iron headpiece, burgesses and poorer freemen with lance and headpiece and wambais, and such as millers with pike and leather shirt. the spiritual and other baronies paid a commutation for personal service, called "scutage", at the rate of 27s. per knight's fee. barons and knights paid according to their knight's fee a scutage ranging from 10s. to 27s. as of 1181, the military obligations of villeins were defined. the master of a household was responsible for every villein in his household. others had to form groups of ten and swear obedience to the chief of the group. the sheriff was responsible for maintaining lists of men liable for military service and procuring supplies. this national militia could be used to maintain the peace. the sheriff could call upon the military array of the county as a â�posse comitatusâ� to take a band of thieves into custody or to quell disorder. for foreign wars, henry decided to use a mercenary army and a mercenary fleet. however, the nobility who were on the borders of the realm had to maintain their private armies for frequent border clashes. the other nobility now tended towards tournaments with mock foot battles between two sides. although subject to knightly rules, serious injury and death often resulted. for this reason, the church opposed them, but unsuccessfully. new taxes replaced the danegeld tax. freeholders of land paid taxes according to their ploughable land ("hidage", by the hide, and later "carucage", by the smaller norman carucate). the smaller measure curtailed estates and increased taxation. it was assessed from 2-5s. per carcuate [100 acres] and collected for the king by knights with little or no remuneration, and later by inquest of neighbors. the towns and demesne lands of the crown paid a tax based on their produce that was collected by the itinerant justices. merchants were taxed on their personal property, which was determined by an inquest of neighbors. clergy were also taxed. this new system of taxation increased the royal income about threefold. there was a standard for reliefs paid of 100s. [5 pounds] for a knight's fee and 2,000s. [100 pounds] for a barony. at the end of henry's reign, his treasure was over 900,000 pounds. every hide of land paid the sheriff 2s. annually for his services in the administration and defense of the county. barons and their tenants and subtenants were offered an alternative of paying shield money ["scutage"] of 26s.8d. per fee in commutation for and instead of military service for their fiefs. this enabled henry to hire soldiers who would be more directly under his own control and to organize a more efficient army. henry ii restored the silver coinage to its standard of purity. the first great inflation in england occurred between 1180 and 1220. most goods and services increased threefold over these forty years. great households, whether of baron, prelate, monastery, or college gave their officers and servants allowances of provisions and clothing called "liveries". the officer of such departments as the buttery [cellar storing butts of wine], the kitchen, the napery [for linen cloth], and the chandlery had his fixed allowances for every day and his livery of clothing at fixed times of the year or intervals of years. the administration of a great estate is indicated by the pipe roll of the bishopric of winchester, 1208-1209, as follows: "downton: william fitzgilbert, and joselyn the reeve, and aylward the cellarer render account of 7 pounds 12s.11d. for arrears of the previous year. they paid and are quit. and of 3 pounds 2s.2d. for landgafol. and of 12d. by increment of tax for a park which william of witherington held for nothing. and of 2s.6d. by increment of tax for half a virgate of land which james oisel held without service. and of 19s. for 19 assize pleas in the new market. and of 10s. by increment of tax for 10 other assize pleas in the market this year. sum of the whole tax 36 pounds 14s.8d. in quittance of one reeve, 5s. in quittance for repairing the bridge, 5s.; of one forester, 4s.; of two haywards from downton and wick, 4s.; of one hayward from witherington, 20d.; of fourteen drivers from downton, wick, and nunton, for the year, 28s.; of two drivers from witherington for the year, 4s.4d.; of two drivers for half the year, 2s.; of one swineherd, of one neaterd, of one cowherd, for the year, 6s.; of three shepherds from wick, barford, and nunton, for the year, 6s.; of one shepherd from witherington, for the year, 20d.; of four customary tenants, for the year, 8s. sum of the quittances, 74s.8d. remainder 33 pounds. livery: for livery to john the dean, for christmas tax, 7 pounds 10s. by one tally. to the same for easter tax, 8 pounds by one tally. to the same for st. john's tax, 8 pounds by one tally. to the same for st. michael's tax, 8 pounds 10s. by one tally. to the same for corn [grain] sold in the field 26 pounds by two tallies. to the same for standing corn [growing crops of grain], purchases, and cheeses, 20 pounds 16s.10d. to the same for wool, 6 pounds 13s.4d. by one tally. to the same for tallage 39 pounds by one tally. sum: 134 pounds 10s.2d. expenses: for ironwork of 8 carts for year and one cart for half the year, 32s.10d. for shoeing of 2 plough horses for the year, 2s.8d. for wheels for carts, 2s.9d. for 6 carts made over, 12d. before the arrival of the carpenter. for wages of the smith for the year, 8s.6d. for one cart bound in iron bought new, 5s.7d. for wheels purchased for one cart to haul dung, 12d. for leather harness and trappings, iron links, plates, halters, 14d. for purchase of 2 ropes, 3d. for purchase of 2 sacks, 8d. for purchase of 5 locks for the granary, 11d. for making 2 gates for the sheepfold, 2s. for one gate for the farm yard, 12d. for an ax and tallow purchased and for repairing the spindles of the mill for the year, 6s.10d. for one millstone purchased for the mill 24s. for making one gate near the mill, 12d. for meat prepared in the larder, 3s. for beer bought for cleaning carcasses, 2s.1d. for digging 158 perches of land around the pasture in the marsh, 32s.11d.; for each perch 2d.1ob. for the dovecote newly made, 22s.11d.1ob. for cutting 100 thick planks for flooring both dispensary and butlery, 6s.3d. for nails or pegs bought for planking beyond the cellar, 16d. for enclosing the garden by making 2 gates, 6s.7d.1ob. for digging in the gardens, 8s.5d. for the winter work of 55 carts, 9s.2d. for the lent work of 49 carts, 8s.6d. for spreading 6 acres with dung, 6d. for threshing 24 quarters of wheat at mardon for seed, 5s. for winnowing the same, 7d. for winnowing 36 quarters of grain for seed, 3s.9d. for threshing 192 quarters of grain 32s.; for each quarter 2d. for threshing 20 quarters of mixed corn [grain], 2s.6d. for threshing 42 quarters of barley, 3s.6d. for threshing 53 quarters of oats, 2s.2d.1ob. for hauling gravel to the bridge and causeway, 4d. for cost of dairy, viz., 3 tines of salt, cloth, and pots, 6s.10d. for purchase of 17 oxen, 5 pounds 13s. for hoeing 140 acres, 5s.10d. for wages of two carters, one neatherd, for the year, 9s. for wages of one carpenter for the year, 6s.8d. for wages of one dairy woman, 2s.6d. for payment of mowers of the meadow at nunton, 6d. for 8 sheep purchased, 8s. for wages of one neatherd from nunton, 12d. for carrying 2 casks of wine by walter locard, in the time of martinmas, 8s.2d. for the carrying of 2 casks of wine from southampton to downton by the seneschal, 3s.6d. at the feast of st. lawrence. for digging 22 perches in the farmyard, 6s.5d.; for each perch 3d.1ob. for allowance of food of robert of lurdon, who was sick for 21 days, with his man, 5s.3d. for allowance of food to sewal who was caring for 2 horses of the lord bishop for 3 weeks, 21d. for allowance of food for roger walselin, for the two times he made gifts to the lord king at clarendon, 4s.9d. by two tallies. for allowance of food of master robert basset, for 3 journeys, 9s.3d.1ob. for livery of william fitzgilbert, 60s.10d. for 30 ells of canvas purchased for laying over the wool, and 2 cushions prepared for the court, 5s. for 8 sheep purchased, with lambs, 8s. sum: 2 pounds.23d. sum of livery and expenses: 159 pounds 12s.1d. and there is owing: 5 pounds 9s.4d.1ob. produce of granary: the same render account of 221 and a half quarters and 1 strike from all the produce of grain; and of 24 quarters brought from mardon. sum: 245 and a half quarters and 1 strike. for sowing 351 acres, 127 quarters. for bread for the lord bishop, 18 and a half quarters delivered to john de dispensa by three tallies. for the balance sold, 110 quarters and 1 strike. the same render account of 38 and a half quarters from all the produce of small corn [grain]. for the balance sold, all. the same render account of 29 quarters and 1 strike from all the produce of mixed corn [grain]. for seeding 156 acres, 53 quarters and 1 strike. for bread for 3 autumnal works, 9 quarters. for the balance sold, 27 quarters. the same render account of 178 and a half quarters from all the produce of barley. for sowing 102 and a half acres, 49 and a half quarters. for payment for carts, 1 quarter. for payment for hauling dung, 2 quarters. for allowance of food of two carters, one carpenter, one neatherd, one dairy woman, for the year, 32 and a half quarters. for feeding hogs in the winter, 2 quarters. for the balance sold, 91 and a half quarters. it is quit. the same render account of 311 quarters and 2 bushels from all the produce of oats. in sowing 221 and a half acres, 110 and a half quarters. for prebends [revenues paid for a clergyman's salary] of the lord bishop and lord king, on many occasions, 131 and a half quarters and 2 bushels, by five tallies. for prebends of roger wakelin, 2 and a half quarters and 3 bushels. for prebends of master robert basset, 3 and a half quarters and 1 bushel. for provender [dry food for livestock] of 2 horses of the lord bishop and 1 horse of richard marsh, for 5 weeks, 5 and a half quarters and 2 bushels. for provender of 2 horses of the lord bishop who stayed 16 nights at downton, 4 quarters. for that sent to knoyle, 18 quarters. for provender of 1 horse of robert of lurdon for 3 weeks, 1 and a half quarters. for prebends of two carters 7 quarters and 2 bushels. for the balance sold, 12 quarters. and there remains 14 quarters and 1 strike. the same render account of 6 and a half quarters from the whole produce of beans. for planting in the garden half a quarter. for the balance sold, 6 quarters. it is quit. the same render account of 4 quarters and 1 strike from all the produce of peas. for sowing 6 acres, 1 and a half quarters. for the balance sold 2 and a half quarters and 1 strike. it is quit. the same render account of 4 quarters from all the produce of vetches [pea plants used for animal fodder]. for feeding pigs in the winter, all. it is quit. beasts of burden: the same render account of 104 oxen remaining from the previous year. and of 2 yoked from useless animals. and of 1 from the will of robert copp. and of 17 purchased. sum: 124. of living ones sold, 12. of dead, 21. sum: 33. and there remain 91 oxen. the same render account of 2 goats remaining from the previous year. all remain. the same render account of 19 cows remaining from the previous year. and of 7 yoked from useless animals, and of 1 found. sum: 27. by death, 1. by killing, brought for the need of the lord bishop at cranbourne, 2. sum: 3. and there remain 24 cows. the same render account of 7 heifers and 2 steers remaining from the previous year. in yoked cows, 7 heifers. in yoked oxen, 2 bulls. sum: 9. the same render account of 12 yearlings remaining from the previous year. by death, 1. there remain 11, of which 5 are female, 6 male. the same render account of 13 calves born this year from cows, because the rest were sterile. in tithes, 1. there remain 12. the same render account of 858 sheep remaining from the previous year. and of 47 sheep for the payment of herbage, after birth, and before clipping. and of 8 bought before birth. and of 137 young ewes mixed with two-year-olds. sum: 1050. in live ones sold at the time of martinmas, 46. in those dead before birth, 20. in those dead after birth and before shearing, 12. sum: 78. and there remain 972 sheep. the same render account of 584 wethers [castrated rams] remaining from the previous year. and of 163 wethers mixed with two-yearolds. and of 16 rams from lindsey, which came by brother walter before shearing. sum: 763. in living ones sold at the time of martinmas, 27 wethers, 10 rams. paid to the men of bishopton before shearing by writ of the seneschal, 20. by death, before shearing, 14. sum: 71. and there remain 692 sheep. the same render account of 322 old sheep remaining, with lambs from the previous year. by death before shearing, 22. and there remain 300; whence 137 are young ewes, mixed with sheep, and 163 males, mixed with wethers. the same render account of 750 lambs born from sheep this year because 20 were sterile, and 30 aborted. in payment of the smith, 2; of shepherds, 3. in tithes, 73. in those dead before shearing, 105. sum: 181. and there remain 569 lambs. the same render account of 1664 large sheepskins whence 16 were from the rams of lindsey. in tithes, 164. in payment of three shepherds, 3. in the balance sold 1497 skins with 16 skins from lindsey which made 11 pondera. the same render account of 569 lamb skins. in the balance sold, all, which made 1 and a half pondera. the same render account of 138 cheeses from arrears of the previous year. and of 19 small cheeses. and of 5 larger ones from the arrears of the previous year. and of 273 cheeses which were begun the 6th of april and finished on the feast of st. michael, both days being counted. and they made cheeses two by two for 96 days, viz. from the 27th april to the vigil of the feast of st. peter in chains, both days being counted. sum: 435 cheeses. in tithes 27. in payment of a shepherd, and mowers of the meadow from nunton, 2. in duty of a carter, 3. in autumnal work, 10. in expenses of the bishop in the kitchen, 2 by one tally. in the balance sold, 133 cheeses, which made 10 heads, from arrears of the previous year. in the balance sold, 177 cheeses, which made 18 heads in this year. in expenses of the lord king and lord bishop on the feasts of st. leonard and st. martin, 19 small cheeses, and 5 larger ones from the arrears of the previous year. and there remain 52 small cheeses which make one head. the same render account of 124 hogs remaining from the previous year. and of 29 that were born of sows. sum: 153 pigs. in tithes, 2. by death, 9. in those killed for the larder, 83. sum: 95 pigs. and there remain 58 pigs. also 19 suckling pigs. sum of the whole: 77 pigs. the same render account of 48 chickens from arrears of the previous year. and of 258 chickens for cheriset. sum: 306. in expenses of the lord bishop on the feast of st. martin, 36 by one tally. in expenses of the same on the feast of st. leonard, 106, by one tally. in expenses of the lord king and bishop on the feast of the apostles peter and paul, 131 chickens, by two tallies. in allowance for food for roger wakelin, 8. in allowance of food for master robert basset, 4. by death, 21. sum: 306 chickens. it is quit. the same render account of 273 chickens, 27 sticae of eels, 4 suckling pigs, freed for the expenses of the lord king and bishop. from the larder: the same freed for the expenses of the lord bishop meat of 2 cows taken to cranbourne. the same render account of 13 sides of bacon, arrears of the previous year. and of 5 oxen and 1 quarter of old beef from arrears of the previous year. and of 84 hogs from downton. and of 71 hogs from mardon. and of 10 hogs from overton. and of 9 hogs from high-clere. and of 14 hogs from harwell. and of 7 hogs from knoyle. sum: 203 hogs, and meat of 5 oxen and one quarter. in expenses of the lord bishop at the feast of st. martin, 8 sides of bacon. in expenses of the same at the feast of st. leonard, 17 sides of bacon, the meat of 5 oxen, and 1 quarter of an ox. in expenses of the same on the morrow of the feast of the holy cross, delivered to nicolas the cook, 27 sides of bacon. in expenses of the lord bishop delivered to the same cook at knoyle on the saturday before the feast of st. michael, 15 sides of bacon. in expenses of the same and of the lord king on the feast of the apostles peter and paul, 50 sides of bacon. in allowance of food to master robert basset on the feast of all saints, half a side of bacon. in allowance of food to the same on wednesday and thursday before pentecost, 1 side of bacon. in those sent to knoyle for autumnal work, 6 sides of bacon. in three autumnal festivals at downton, 9 and a half sides of bacon. sum: 134 sides of bacon. and there remain 74 sides of bacon. the same render account of skins, sausages, and offal of the said hogs. in expenses of the lord king and lord bishop at the feast of st. leonard, all. nothing remains." king richard the lion-hearted, unlike his father, was interested in warfare. he spent most of his term on crusade to recover jerusalem. for his expenses, he imposed a tax of one-tenth of rents and income from moveable goods. he also sold town charters, heiresses and heirs, widows, sheriffdoms, justiceships, earldoms, and licenses for tournaments. in 1198, the bishop barons had refused to pay for a campaign of richard's war in normandy arguing that military service was only due within the kingdom of england. when richard was captured, every person in the realm was required to pay a part of his ransom of 100,000 pounds, which was double the whole revenue of the crown. aids, tallages, and carucage were imposed. the heaviest impost was one-fourth of revenue or of goods from every person.the crusaders' contact with arabs brought to england an expansion of trade, arab horses, and arabic numerals, which included "zero" and greatly facilitated arithmetic, which was very difficult with roman numerals. the church decreed that those who went on these crusades would be remitted of their sins. at the end of this period was the reign of king john, a short man. after his mother eleanor's death in 1204, john ruled without her influence. he had no conscience and his oaths were no good. he trusted and was trusted by no one. he had a huge appetite for money. he imposed 2,000 pounds [3,000 marks] on london for confirmation of its charter. he imposed levies on the capital value of all personal and moveable goods. it began the occasional subsidies called "tenths and fifteenths" from all people on incomes from movables: one-tenth from boroughs and royal demesne land, and one-fifteenth elsewhere. he sold the wardships of minors and the marriages of heiresses to the highest bidder, no matter how base. he appointed unprincipled men to be both sheriff and justice, enabling them to blackmail property holders with vexatious writs and false accusations. writs were withheld or sold at exorbitant prices. crushing penalties were imposed to increase the profits of justice. he asserted over fowls of the air the same exclusive right as over beasts of the forest. the story of robin hood portrays john's attempt to gain the crown prematurely while richard was on the crusades to recover jerusalem for christendom.in 1213, strong northern barons refused a royal demand for service in france or scutage, arguing that the amount was not within custom or otherwise justified. john had private and public enemies. no one trusted him and he trusted no one. his heavy handed and arbitrary rule quickly alienated all sectors of the population: other barons, bishops, london, and the commons. they joined the barons to pressure him to sign the magna carta correcting his abuses. for instance, since john had extracted many heavy fines from barons by personally adjudging them blameworthy in disputes with others, the barons wanted judgment by their peers under the established law of the courts. in arms, the barons forced john to sign the magna carta correcting his abuses. the law no one, including the lord of a manor, may take land from anyone else, for instance, by the customary process of distress, without a judgment from the royal court. this did not apply to london, where a landlord leasing or renting land could take distress in his fee. no one, including the lord of a manor, shall deprive an heir of the land possessed by his father, i.e. his birthright. a tenant may marry off a daughter unless his lord shows some just cause for refusing to consent to the marriage. a tenant had to pay an "aid" to his lord when the lord's daughter married, when the lord's son was knighted, or when the lord's person was ransomed. a man [or woman] may not will away his land, but he may sell it during his lifetime. the land of a knight or other tenant of a military fee is inherited by his eldest son. the socage land of a free sokeman goes by its ancient custom before the norman conquest. if a man purchased land after his marriage, his wife's dower is still one-third of the land he had when they married, or less if he had endowed her with less. but he could then enlarge her dower to one-third of all of his lands. the same rule applied if the man had no land, but endowed his wife with chattel or money instead. dower law prevented a woman from selling her dower during the life of her husband. but he could sell it or give it away. on his death, its possessor had to give the widow the equivalent worth of the property. a widower had all his wife's lands by curtesy of the nation for his lifetime to the exclusion of her heirs. the capital messuage [chief manor] could not be given in dower or divided, but went in its entirety to its heir. heirs were firstly sons, then daughters, then grandsons per stirpes, then granddaughters per stirpes, then brothers, and then sisters of the decedent. [by taking "per stirpes" instead of "per capita", a person's share goes to that person's heirs if that person predeceases the ancestor-decedent.] male heirs of land held by military service or sons of knights who were under the age of twenty-one were considered to be in custody of their lords. the lord had wardship over the heir's land, excluding the third that was the widow's dower for her life. he had to maintain the heir in a manner suitable to his dignity and restore to him when he came of age his inheritance in good condition discharged from debts. male heirs of sokemen who were under the age of fifteen were in the custody of their nearest kindred. the son of a burgess came of age when he could count money, measure cloth, and manage his father's concerns. female heirs remained in the custody of their lords until they married. the lord was bound to find a marriage for his ward when she became fourteen years of age and then deliver her inheritance to her. she could not marry without her lord's consent, because her husband was expected to be the lord's ally and to do homage to him. but if a female heir lost her virginity, her inheritance escheated to her lord. a woman with property could not do homage because she could not perform military service, but she generally swore fealty. she could receive homage from men. bastards were not heirs, even if their father married their mother after birth. any adult inheriting land had to pay a "relief" to the lord of the land. for a knight's fee, this was 100s. for socage land, this was one year's value. the amount for a barony depended upon the king's pleasure. heirs (but not widows) were bound to pay the debts of their fathers and ancestors. a man who married a woman who had inherited land could not sell this land without the consent of its heirs. when a man dies, his wife shall take one-third and his heirs shall take one-third of his chattels [movables or personal property]. the other third he may dispose of by will. if he had no heirs and no will [intestate], all his chattels would escheat to his lord. any distribution of chattels would take place after all the decedent's debts were paid from the property. a will required two witnesses. the testator could name an executor, but if he did not, the next of kin was the executor. a will could not be made by a man on his death bed because he may well have lost his memory and reason. also, he could not give to a younger son if in so doing, he would deprive his lawful heir. but he could give a marriage gift to a daughter regardless of the lawful heir. usury was receiving back more than what was lent, such as interest on a loan of money. when a usurer died, all his movables went to the king. a villein may not buy his own freedom (because all that he has is his lord's), but may be set free by his lord or by someone else who buys his freedom for him. he shall also be freed if the lord seduced his wife, drew his blood, or refused to bail him either in a civil or criminal action in which he was afterwards cleared. but a freed villein did not have status to plead in court, even if he had been knighted. if his free status were tried in court, only a freeman who was a witness to his being set free could avail himself of trial by combat to decide the issue. however, if the villein remained peacefully in a privileged town a year and a day and was received into its guild as a citizen, then he was freed from villeinage in every way. a freeman who married a villein lost his freedom. if any parent of a child was a villein, then the child was also a villein. all shipwrecked persons shall be treated with kindness and none of their goods or merchandise shall be taken from them. if one kills another on a vessel, he shall be fastened to the dead body and thrown with it into the sea. if one steals from another on a vessel, he shall be shaven, tarred and feathered, and turned ashore at the first land. passage on the thames river may not be obstructed by damming up the river on each side leaving a narrow outlet to net fish. all such weirs shall be removed. judicial procedure henry ii wanted all freemen to be equally protected by one system of law and government. so he opened his court, the royal court, to all people of free tenure. a court of five justices professionally expert in the law, traveled with the king, and on points of difficulty consulted with him. justices began to be more than presiding officers; they, instead of those attending, rendered the judgments. the chief court was in westminster, where the weightiest decisions were made. other professional itinerant justices appeared periodically in all counties of the nation to hear certain criminal and civil cases and to hear citizens' private civil suits [common pleas]. they came to perform many other tasks, including promulgating and enforcing new legislation, seeking out encroachments on royal rights, reviewing the local communities' and officials' performance of their public duties, imposing penalties for failure to do them or for corruption, gathering information about outlaws and nonperformance of homage, and assessing feudal escheats to the crown, wardships to which the king was entitled, royal advowsons, feudal aids owed to the king, tallages of the burgesses, and debts owed to the jews. the decision-making of itinerant justices on circuits begins the process which makes the custom of the royal court the common law of the nation. the county courts, where the traveling justices heard all manner of business in the counties, adopted the doctrines of the royal court, which then acquired an appellate jurisdiction. the itinerant justices came from the same small group of royal justices who were on the royal court and the exchequer, which was headed by the justiciar. difficult cases were decided by the king and wise men of his council. tenants of manors and of escheats in royal hands, who had been excused from the monthly county court, were required to appear. side by side with the reeve and four men of the rural townships appeared the twelve legal men of each of the chartered boroughs which owed no suit to the ordinary county court. in the formation of the jury of presentment for criminal cases, each hundred sent twelve legal men and each township four to make report to the justices. women did not serve on juries. compurgation was not used; accused persons were sent directly to the ordeal. in 1194, twelve knights or legal men from each hundred answer before any itinerant justice for their hundred in all criminal, civil, and fiscal cases. all who are bound to attend before the itinerant justices are, in the forest counties, compelled to attend the forest courts. the royal court was chiefly concerned with 1) the due regulation and supervision of the conduct of local government, 2) the ownership and possession of land held by free tenure ("free tenement" was decided by justices to be one held for life or one held heritably [a fee]), 3) the repression of serious crime, and 4) the relations between the lay and the ecclesiastical courts. the doctrine of tenure applied universally to the land law formed the basis for judicial procedure in determining land rights. those who held lands "in fee" from the king in turn subinfeudated their land to men of lesser rank. the concept of tenure covered the earl, the knight (knight's service), the church (frank-almoin [free alms]), the tenant who performed labor services, and the tenant who paid a rent (socage). other tenures were: serjeanty [providing an implement of war or performing a nonmilitary office] and burgage. all hold the land of some lord and ultimately of the king. henry was determined to protect lawful seisin of land and issued assizes giving the royal court authority to decide land law issues which had not been given justice in the county or lord's court. but he did not ordain that all litigation respecting free tenements, e.g. right of seisin, should take place in the king's court. rather he gave protection to mere possession of land, which could be justified because possession was intimately associated with the maintenance of the king's peace. these assizes included issues of novel disseisin [recent ejectment] of a person's free tenement or of his common of pasture which belonged to his freehold. though the petty assize of disseisin only provided a swift preliminary action to protect possession pending the lengthy and involved grand assize on the issue of which party had the more just claim or ultimate right of seisin, the latter action was only infrequently invoked. the temptation of a strong man to seize a neighbor's land to reap its profits for a long time until the neighbor could prove and enforce his right was deterred. any such claim of recent dispossession [novel disseisin] had to be made within three years of the disseisin. an example of a writ of novel disseisin is: the king to the sheriff, greeting. n has complained to me that r unjustly and without a judgment has disseised him of his free tenement in [houndsditch] since my last voyage to normandy. therefore i command you that, if n gives you security for prosecuting his claim, you are to see that the chattels which were taken from the tenement are restored to it, and that the tenement and the chattels remain in peace until sunday after easter. and meanwhile you are to see that the tenement is viewed by twelve free and lawful men of the neighborhood, and their names endorsed on this writ. and summon them by good summoners to be before me or my justices on the sunday after easter, ready to make the recognition. and summon r. or his bailiff if he himself cannot be found, on the security of gage and reliable securities to be there then to hear the recognition. and have there the summoners, and this writ and the names of the sureties. witness etc. then an assize panel of recognition summoned concurrently with the defendant and before he had pleaded, viewed the land in question and answered, from their knowledge, these questions of fact: 1) was the plaintiff disseised of the freehold in question, unjustly and without judgment? 2) did the defendant commit the disseisin? testimony of a warrantor (or an attorney sent by him in his place) or a charter of warranty served to prove seisin by gift, sale, or exchange. no pleadings were necessary and the action could proceed and judgment given even without the presence of the defendant. the justices amerced the losing party with a monetary penalty. a successful plaintiff might be awarded damages to compensate for the loss of revenue. there was also a writ for issues of inheritance of land called "mort d'ancestor". by law the tenure of a person who died seised of a tenure in a lord's demesne which was hereditary [seisin of fee] returned to the lord, who had to give it to the heir of the decedent. if the lord refused and kept it for himself or gave it to someone else, the heir could sue in the royal court, which used an similar assize panel of twelve men to decide whether the ancestor was seised as of fee in his demesne, if the plaintiff was the nearest heir, and whether the ancestor had died, gone on a crusade but not returned, or had become a monk. then it could give possession to the heir. since about 1150, heiresses divided the land of their father if there was no son. the widow, of course, retained her dower rights. as of 1176, the widow held her dower from the heir instead of from the husband's lord. if the heir was a minor, the guardian lord would be in actual control of the land. a national policy was implemented that in the case of the death of a freeholder, the rights of the family, his will, and his debts were to be provided for before relief was paid to his lord. eventually royal justices acquired authority to decide the ultimate question of right to land using the grand assize as an alternative to the traditional procedures which ended in trial by combat. issues of the ultimate right of seisin were brought to the royal court by a contestant in a local court who "put himself [or herself] upon the king's grand assize". the assize consisted of twelve knights from the county or neighborhood who were elected by four knights of the same county or neighborhood (selected by the sheriff or the suitors) and who were known as truthful men and were likely to possess knowledge of the facts, either from personal seeing or hearing, or from statements which their fathers had made to them from their personal knowledge. the avenue by which a person who felt he had not had justice in the manor court on his claim for certain freehold land appealed to the king was by writ of right after the manor court's decision or by a writ praecipe during the manor court's proceeding. an example of a writ praecipe is: "the king to the sheriff greeting. command [praecipe] n. to render to r. justly and without delay one hide of land in a certain vill, which the said r. complains that the aforesaid n. is withholding from him. if he does not do so, summon him by good summoners to be before me or my justices on the day after the octaves of easter, to show why he has not done so. and have the summoners and this writ. witness." when the parties appeared in court, the claimant states his suit such as: "i claim against this n. the fee of half a knight and two carucates of land in a certain vill as my right and my inheritance, of which my father (or grandfather) was seized in his demesne as of fee in the time of king henry the first, and from which he took the profits to the value of five shillings at least, in grain and hay and other profits; and this i am ready to prove by this freeman of mine, h., and if any evil befalls him them by this other man or by this third man, who saw and heard it". then the defendant chose to deny the claim word for word with proof by combat or to put himself upon the grand assize of the king. if he chose trial by combat, the parties or their champions fought. the party losing, usually by crying craven, had to pay a fine of 60s. if the grand assize was chosen, the action was removed to the royal court. a writ of grand assize was issued as follows: "the king to the sheriff, greeting. summon by good summoners the following twelve, namely, a. b. ..., to be before me or my justices at a certain place on a certain day, ready to declare on oath whether n. or r. has the greater right in one hide of land (or other things claimed) which the aforesaid r. claims against the aforesaid n., who is tenant, and in respect of which the aforesaid n., who is tenant, has put himself upon my assize and has sought a recognition to determine which of them has the greater right in the things claimed. and meanwhile the twelve shall view the land (or tenements from which the services are demanded). and summon by good summoners n., who is tenant, to be there to hear the recognition. witness..." the claimant could object to any of the twelve knights for just cause as determined by the court. each of the twelve gave an oath as to whether the plaintiff's or the defendant's position was correct. this oath was not to speak falsehood nor conceal truth according to knowledge gained by eyewitness or "by the words of their fathers and by such words as they are bound to have such confidence in as if they were their own". if any did not know the truth of the matter, others were found until twelve agreed [the recognitors] on which party had the greater right. perjury was punished by forfeiture of all one's goods and chattels to the king and at least one year's imprisonment. if the tenant in court vouched another to warranty, such as the lord to whom he paid homage, that warrantor would stand in his place in the proceedings. if the warrantor lost, he would have to give to his vassal equivalent land in exchange. burgage tenure was not usually decided by assize. also, if the parties were relatives, neither the assize nor the combat was available to them, but the matter had to be decided by the law of inheritance. itinerant justices could conduct these assizes: petty and grand. in 1198, the hundred is empowered to act on all the business of the session, including all recognitions and petty assizes ordered by the king's writ, where the property in dispute was worth no more than 200s. [ten pounds] a year. the four knights came to be selected by the suitors of the county court rather than by the sheriff. this assize procedure extended in time to all other types of civil actions. also removable to the royal court from the county courts were issues of a lord's claim to a person as his villein (combat not available), service or relief due to a lord, dower rights, a creditor's refusal to restore a gage [something given as security] to a debtor who offered payment or a deposit, money due to a lender, a seller, or a person to whom one had an obligation under a charter, fish or harvest or cattle taken from lands unjustly occupied, cattle taken from pasture, rights to enjoy a common, to stop troubling someone's transport, to make restitution of land wrongfully occupied, to make a lord's bailiff account to him for the profits of the manor. the royal court also decided disputes regarding baronies, nuisance or encroachments on royal land or public ways or public waterways, such as diverting waters from their right course and issues of nuisance by the making or destroying of a ditch or the destruction of a pond by a mill to the injury of a person's freehold. other pleas of the crown were: insult to the royal dignity, treason, breaches of safe-conducts, and injury to the king's servants. henry involved the royal court in many criminal issues, using the agencies of the county and hundred courts. to detect crimes, he required royal justices to routinely ask selected representatives: knights or other landholders, of every neighborhood if any person were suspected of any murder, robbery, theft, etc. a traveling royal justice or a sheriff would then hold an inquest, in which the representatives answered by oath what people were reputed to have done certain crimes. they made such inquiries through assizes of presentment, usually composed of twelve men from each hundred and the four best men of each township. (these later evolved into grand juries). these assizes were an ancient institution in many parts of the country. they consisted of representatives of the hundreds, usually knights, and villages who testified under oath to all crimes committed in their neighborhood, and indicted those they suspected as responsible and those harboring them. what henry's assize did was to insist upon the adoption of a standard procedure everywhere systematically. the procedure was made more regular instead of depending on crime waves. if indicted, the suspected persons were then sent to the ordeal. there was no trial by compurgation in the royal courts, which was abolished by henry. if determined guilty, he forfeited his chattels to the king and his land reverted to his landlord. if a man failed at the ordeal, the penalty prescribed by the assize of clarendon of 1166 was loss of a foot and abjuring the realm. the assize of northhampton of 1176 added loss of the right hand. a man who had a bad reputation had to abjure the realm even if he had successfully undergone the ordeal. as before, a person could also be brought to trial by the accusation of the person wronged. if the accused still denied the charge after the accuser testified and the matter investigated by inquiries and interrogation and then analyzed, trial by combat was held, unless the accuser was over the age of sixty or maimed, in which case the accused went to the ordeal. the ordeal was abolished by the lateran council of 1215. criminal matters such as killing the king or sedition or betraying the nation or the army, fraudulent concealment of treasure trove [finding a hoard of coins which had been buried when danger approached], breach of the king's peace, homicide, murder (homicide for which there were no eyewitnesses), burning (a town, house, men, animals or other chattel for hatred or revenge), robbery, rape and falsifying (e.g. false charters or false measures or false money) were punishable by death or loss of limb. all murders were now punished alike because the applicability of the murdrum couldn't be determined since it was impossible to prove that the slain man had been english. trespass was a serious and forcible breach of the peace onto land that developed from the criminal law of felony. one found guilty of it could be fined and imprisoned as well as amerced. housebreaking, harboring outlaws, and interference with the royal perquisites of shipwreck and the beasts of the sea which were stranded on the coast [such as whales and sturgeon] were also punishable in the royal court. the royal court had grown substantially and was not always presided over by the king. to avoid court agents from having too much discretionary power, there was a systematic procedure for bringing cases to the royal court. first, a plaintiff had to apply to the king's chancery for a standardized writ into which the cause had to fit. the plaintiff had to pay a fee and provide a surety that the plea was brought in good faith. the progress of the suit was controlled at crucial points by precisely formulated writs to the sheriff, instructing him for instance, to put the disputed property under royal protection pending a decision, to impanel an assize and have it view the property in advance of the justices' arrival, to ascertain a point of fact material to the plea, or to summon a 'warrantor' to support a claim by the defendant. the royal court kept a record on its cases on parchment kept rolled up: its "rolls". the oldest roll of 1194 is almost completely comprised of land cases. anyone could appoint an agent, an "attorney", to appear in court on his behalf, it being assumed that the principal could not be present and royal authorization given. a wife could represent her husband. the principal was then bound by the actions of his agent. gradually men appeared who made a business of representing whoever would employ them. the common law system became committed to the "adversary system" with the parties struggling judicially against each other. the royal court took jurisdiction over issues of whether certain land was civil or ecclesiastical [assize utrum], and therefore whether the land owed services or payment to the crown or not. it also heard issues of disturbance of advowson, a complex of rights to income from a church and to the selection of a parson for the church [assize of darrein [last] presentment]. many churches had been built by a lord on his manor for his villeins. the lord had then appointed a parson and provided for his upkeep out of the income of the church. in later times, the lord's chosen parson was formally appointed by the bishop. by the 1100s, many lords had given their advowsons to abbeys. this procedure used twelve recognitors selected by the sheriff. as before, the land of any person who had been outlawed or convicted of a felony escheated to his lord. his moveable goods and chattels became the king's. if he was executed, his heirs received nothing because they were of the same blood as the felon, which was corrupt: "corruption of the blood". the loss of civil rights and capacities after a sentence of death for felony or treason, which resulted in forfeiture of property and corruption of the blood, was called "attainder". the manor court heard cases arising out of the unfree tenures of the lord's vassals. it also heard distraint, also called "distress", issues. distraint was a landlord's method of forcing a tenant to perform the services of his fief. to distrain by the fief, a lord first obtained a judgment of his court. otherwise, he distrained only by goods and chattels without judgment of his court. a distraint was merely a security to secure a person's services, if he agreed he owed them, or his attendance in court, if he did not agree that he owed them. law and custom restricted the type of goods and chattels distrainable, and the time and manner of distraint. for instance, neither clothes, household utensils, nor a riding horse was distrainable. the lord could not use the chattels taken while they were in his custody. if cattle in custody were not accessible to the tenant, the lord had to feed them at his expense. the lord, if he were not the king, could not sell the chattel. this court also determined inheritance and dower issues. the court of the vill enforced the village ordinances. the hundred court met twice a month and dealt with the petty crimes of lowly men in the neighborhood of a few vills. the county and borough courts heard cases of felonies, accusations against freemen, tort, and debts. the knights make the county courts work as legal and administrative agencies of the crown. the peace of the sheriff still exists for his county. the king's peace may still be specially given, but it will cease upon the death of the king. law required every good and lawful man to be bound to follow the hue and cry when it was raised against an offender who was fleeing. the village reeve was expected to lead the chase to the boundary of the next jurisdiction, which would then take the responsibility to catch the man. admiralty issues (since no assize could be summoned on the high seas), and tenement issues of land held in frankalmoin ["free alms" for the poor to relieve the king of this burden], where the tenant was a cleric were heard in the ecclesiastical courts. before henry's reign, the church, with the pope's backing, had become more powerful and asserted more authority. henry tried to return to the concept of the king being appointed by god and as the head of the church as well as of the state, as in henry i's time, and to include the church in his reform of the legal system, which would make the spiritual jurisdiction and temporal jurisdiction conform to a common justice. toward this end, he published the constitutions of clarendon. but the archbishop of canterbury, thomas becket, refused to agree to them, although as chancellor he had seen the beneficial effects on the kingdom of henry's legal measures. the disagreement came to a head in henry's attempt to establish the principle of "one law to all" by having church clerics punished by the civil courts as before, instead of having "benefit of clergy" to be tried and punished only in ecclesiastical courts, even for secular crimes. clerics composed about one-sixth the population. the church courts had characteristically punished with spiritual penalties of a fine or a penance, and at most defrocking. it could not impose a death penalty, even for murder. when archbishop becket was murdered and became a martyr, "benefit of clergy" became a standard right, except for offenses in the king's forests. appeals could be made to the pope without the king's permission. the king could take a criminal cleric's chattels, but not his life. however, though theoretically bishops were elected by the body of bishops with the approval of the king, as a practical matter, the king chose the bishops and the abbots. it was a constant matter of dispute, in which the pope would sometimes involve himself. selection of archbishops was also a frequent matter of contention between king and pope. the church copied the assize procedure developed by the royal court to detect ecclesiastical offenses. trial was still by compurgation. bishops could request the chancery to imprison an offender who had remained excommunicant for forty days, until he made amends. chancery complied as a matter of course. this went on for six centuries. the delineations of jurisdiction among these courts were confused and there was much competing and overlapping of jurisdictions. however, the court could appoint arbitrators or suggest to the parties to compromise to avoid the harshness of a decisive judgment which might drive the losing party to violent self-help. the office of coroner was established about 1194 to supplement the judicial investigations of crimes with local officers prior to the arrival of the itinerant justices. four knights who were residents of the county and possessed sufficient land were elected by the county court for life. sometimes they had county and royal connections instead. they received no pay. they determined if sudden deaths were accidental or due to murder and the cause of death of prisoners. they also held inquests on other crime such as bodily injury, rape, and prison break. they attached [arrested] the accused and evaluated and guarded his chattels until after the trial. if the accused was found guilty, his possessions went to the king. the coroner sat with the sheriff at every county court and went with him on his turns. this office and the forbidding of sheriffs to act as justices in their own counties reduced the power of the sheriffs. the responsibility of receiving the oath of the peace is changed from the sheriff to knights, the duty of the sheriffs being only to receive and keep the criminals taken by these knights until the justices came to try them. also, at this time, the constitution of the grand jury of the county was defined. first, four knights were to be chosen in the county court. these were to select on oath two knights from each hundred. these two, also on oath, are to add by co-optation ten more for the jury of the hundred. in london, if one of two witnesses for the defense died while an action was pending, the survivor, after offering his oath, could proceed to the grave of the dead witness, and there offer oath as to what the dead man would have sworn if he had been alive. if a foreigner was bound to make oath for debt or any misdeed, he could make it with six others, his own oath being the seventh; but if could not find six supporters, he alone could make the oath and take it in the six nearest churches. in london, the method of capital punishment was being confined to hanging, instead of also being in the form of beheading, burning, drowning, stoning, or hurling from a rock. in cases of drowning, the offender was first sewn up in a sack with a snake, a dog, an ape, and a cock. chief justiciar ranulph glanvill wrote a treatise on the writs which could be brought in the royal court and the way they could be used. it was a practical manual of procedure and of the law administered in the royal court. there are personal actions such as "debt" for specific chattel or specific sum of money. this splits into two actions. the detinue award is for the specific chattel or its value. the action of "replevin" is available to the tenant to recover personal property which had been wrongly distrained, usually cattle; the goods are "repledged" pending action. also, but rarely used, are "covenant" to protect termors for leases of land for terms of years, and "trespass": a semi-criminal action brought by a private party for an offense punishable by death (or in the 1100s by mutilation) such as murder, rape, robbery, or mayhem, that is done with force of arms and against the peace of the king. the use of trespass grew as private actions for felony were supplanted by public indictment. it occasioned outlawry in default of appearance. these personal actions were initiated in common law courts by their respective writs. these are some of the cases of novel disseisin brought to the king's court: woodbridge v. bardolf (1194, king's court): ralf of woodbridge seeks before the justices his free tenement in hebston by the assize of novel disseisin against hugh bardolf. against which assize hugh said that he had that seisin by judgment of his court for the default of the same ralf. and the court has recorded the summons and distraints reasonably made on the same ralf. and ralf himself has acknowledged the summons and distraints and said that he ought not hold anything from him in that land; rather, it is of another's fee. and because neither he nor anyone for him has complained to the justices that hugh unjustly drew him into a plea concerning a tenement which ralf himself held of the fee of another lord, it is considered that hugh hold in peace. and let ralf plead by writ of right if he want and be in mercy for his false claim. turroc v. fitz walter (1194, king's court): the assize came to recognize if clement son of walter unjustly and without judgment disseised matilda of turroc of her free tenement within the assize. clement comes and says that he disseised her by judgment of his court. the court is present and records that she occupied more of her lord's land than she had in dower by the sheriff and by order of the lord king, so that she was summoned and distrained to come in to court, and she so responded that she remained in mercy of 10s. by judgment, so that for that amercement and for other complaints she made fine with her lord for 1/2 mark [7s.] and put her land in pledge in his court and did not want to render the 1/2 mark [7s.]. and therefore by judgment of his court he seised it. matilda denies all word for word. and the same clement only produces two men from his court; and it is considered that it was no court. judgment: let matilda have her seisin and let clement be in mercy for disseisin. fitz hereward v. prior of lecton (1195, king's court): the assize came to recognize if the prior of lecton unjustly and without judgment disseised reginald son of hereward and essolda his wife of his free tenement in clapston after the first coronation of the lord king. the prior says that the assize ought not be taken thereof, because he seised that land by judgment of his court for default of his service and his rent, whereof he has his court present, which asserts the same thing. it is considered that the prior replevy [give back] to them their land and give them a day in his court concerning the arrears of rents and services. and let him treat them justly by judgment of his court. stanfeld v. brewes (1199, king's court): the assize comes to recognize if simon of brewes and luke cleric and peter of brewes unjustly and without a judgment disseised odo of stanfeld and juliana his wife of her free tenement in michehey within the assize. simon says that the assize ought not be taken thereof, because he took that land into his hand by judgment of his court -which he produced and which attests to this -for default of his service. and it was testified that odo holds that land from the same simon. simon was ordered to replevy that land to odo as well as the chattels and to treat him rightfully in his court. fitz william v. amice et al. (1200, king's court): the assize comes to recognize if amice who was the wife of richard earl of clare and hugh of ceriton, john of cornherd, william of wattevill, alexander son of gilbert, alexander son of matthew, bartholomew son of alexander, robert of cornherd, and geoffrey son of leveric unjustly and without judgment disseised richard son of william of sudbury of his free tenement in sudbury after the feast of st michael next before the coronation of the lord king. the countess says that, when she was separated by papal order from the earl of clare her husband by reason of consanguinity, to which husband the vill of sudbury had been given with her as marriage portion, she came to sudbury and convoked her court and made the same richard to be summoned to come to show by what warrant he held her land. he willingly entered into the plea and vouched the earl of clare her former husband to warrant and at the day given him to have [his warrantor] he did not have him. and thus by consideration of her court she seised her land and holds it. which court she produced and which attests this. richard comes and denies that he was ever summoned or came into her court by summons or vouched to warranty or so lost seisin by consideration of the court of the countess. and this he offers [to prove]. it is considered that he defend himself 12-handed that he did not willingly enter into the plea and vouch to warranty. let him wage his law [prove by the 12-handed oath, thus, by compurgation]. pledges of the law: hugh son of hugh, wido of sudbury. day is given them at the quindene of st. john. this is the suit of richard of sudbury: [there follow the names, but only of 10 men] against the countess amice who was the countess of clare, concerning whom he had complained concerning a novel disseisin of his free tenement in sudbury. she said that by judgment of her court for default of warranty which he had vouched did she make the [dis]seisin and thereof did she produce suit. and he denied against her and against the suit, and law was adjudged. and he comes with his law and makes it with the abovesaid suit. therefore it is considered that he recover thereof his seisin; let the countess be in mercy for unjust disseisin and also her men, of whom the same richard has complained. and let the same countess return to him the damages done thereof by a jury of law-worthy men of the vicinity. the names of the men of the countess are in the writ. a sample of crown pleas in several hundreds or wapentakes [danish name for a hundred] from 1201 to 1203 are: 1. denise, who was wife to anthony, appeals nicholas kam of the death of anthony, her husband, for that he wickedly slew her husband; and this she offers to prove against him under award of the court. and nicholas defends all of it. it is considered that denise's appeal is null, for in it she does not say that she saw the deed. the jurors being asked, say that they suspect him of it; the whole county likewise suspects him. let him purge himself by water [ordeal] under the assize. he has waged his law. 2. william de ros appeals ailward bere, roger bald, robert merchant, and nicholas parmenter, for that they came to his house and wickedly in the king's peace took away from him a certain villein of his whom he kept in chains because he wished to run away, and led him off, and in robbery carried away his wife's coffer with one mark of silver and other chattels; and this he offers to prove by his son, robert de ros, who saw it. and ailward and the others have come and defended the felony, robbery, and breach of the king's peace, and say that (as the custom is in cornwall) roger of prideaux, by the sheriff's orders, caused twelve men to come together and make oath about the said villein, whether he was the king's villein or william's and it was found that he was the king's villein, so the said roger the serjeant demanded that [william] should surrender him, and he refused, so [roger] sent to the sheriff, who then sent to deliver [the villein], who, however, had escaped and was not to be found, and william makes this appeal because he wishes to keep the chattels of thomas [the villein], to wit, two oxen, one cow, one mare, two pigs, nine sheep, eleven goats. and that this is so the jurors testify. judgment: william and robert in mercy for the false claim. william's amercement, a half-mark. robert's amercement, a half-mark. pledge for the mark, warin, robert's son. let the king have his chattels from william. pledge for the chattels, richard, hervey's son. 3. serlo of ennis-caven appeals osbert of dimiliock and jordan, walter's son, for that they in the king's peace wickedly assaulted, beat and seriously wounded him, so that by reason of the beating three bones were extracted from his head; and this he offers to prove against him under the court's award as a man maimed by that mayhem. and it is testified by the coroners that the wounds when fresh were shown in the county [court], and that [the bones were broken] as aforesaid. and osbert and jordan come and defend word by word. it is considered that osbert do purge himself by ordeal of iron on account of the appeal, for serlo betook himself against osbert in the first instance. and let jordan be in custody until it be known how osbert shall fare. and the other persons who are appealed as accessories are to be under pledge until [osbert's fate] be known. 4. the jurors say that they suspect william fisman of the death of agnes of chilleu, for the day before he had threatened her body and goods. and the four neighboring townships being sworn, suspect him of it. it is considered that he purge himself by water under the assize. 5. william burnell and luke of the well are suspected of the burglary at the house of richard palmer by the jurors of the hundred, and by the four neighboring townships, which are sworn. let them purge themselves by water under the assize. 6. malot crawe appeals robert, godfrey's son, of rape. he comes and defends. it is testified that he thus raped her and that she was seen bleeding. by leave of the justices they made concord on the terms of his espousing her. 7. walter wifin was burgled, and of his chattels taken from his house in the burglary certain boots were found in the house of lefchild of ranam, and the said walter pursues those boots as his. and lefchild said that he bought them in bodmin market for 2 1/2 pence, but he knows not from whom. and besides walter says that eleven ells of linen cloth, part of the stolen goods, were sold in lefchild's house, and all the other proceeds of the burglary, and that lefchild was the receiver of the burglars, namely, robert of hideford and alan the foresters, whom he [walter] had appealed of the crime. and lefchild defends. the jurors on being asked, say that they suspect lefchild of the said receipt. so let him purge himself by water under the assize. 8. eadmer of penwithen appeals martin, robert and thomas of penwithen, for that robert wounded him in the head so that twenty-eight pieces of bone were extracted, and meanwhile martin and thomas held him; and this he offers to deraign against the said robert as a man thereby maimed, under the court's award. and robert comes and defends all of it word by word. it is considered that he purge himself by ordeal of iron. let the others be in custody until it be known how robert shall fare. afterwards eadmer came and withdrew himself, and submitted to an amercement of one mark.pledges, reinfrid, gill's son, and philip his brother. let the other appellees go quit. 9. reginald le teinus accused of the receipt and fellowship of robert the outlaw comes and defends. the jurors say that they suspect him, and the four neighboring townships say that they suspect him of it. so let him purge himself by water under the assize. and there must be inquiry as to richard revel, who was sheriff when the said robert escaped from his custody. 10. osbert of reterth appeals odo hay, for that he assaulted him as he was returning from bodmin market, and in the king's peace and wickedly struck him on the hand with a stick, and afterwards struck him on the arm with his sword so that he is maimed; and this he offers to prove as a maimed man. and odo defends it all. and that [osbert] is maimed is testified by knights sent to see him. judgment: let [odo] purge himself by ordeal of iron because of this appeal. 11. wulward of wadebridge was burgled. and odo hay, lawrence smith, osbert mediciner, and benet his son, william miller, robert of frokemere, and maud his sister, are suspected of the burglary by the jurors of the hundred and by the four nearest townships, which are sworn. let the males purge themselves by water under the assize, and maud by ordeal of iron. roger morand fled for that burglary, and he was living in bodmin, [which town is] therefore in mercy. 12. robert, godfrey's son, appeals philip, william's son, for that he came on the land of [robert's] lord richard fortescue, and wickedly and in the king's peace and in robbery took eight oxen and a mantle, cape, and sword, and carried them off; and this he offers to prove against him by his body under award of the court. and philip comes and defends all of it word by word. it is considered that the appeal is null, for the oxen were not robert's, but richard's. the jurors being asked, say that [philip] did no robbery to [richard]. so richard fortescue is in mercy for a false appeal, and let philip be quit. 13. peter burel appeals anketil of wingely, for that he wickedly in the king's peace assaulted him in the field where he was pasturing his oxen, and beat him, and gave him four wounds in the head, and in robbery took from him an ax and a sword; and this he offers to prove against him; but he shows no wound. and anketil defends. and the county records that [peter] first appealed roger of tregadec of the same robbery and of the same wounds. therefore it is considered that the appeal is null, and let peter be in mercy for a false appeal. his amercement, a half-mark; pledge for it, ralph giffard. 14. the jurors are in mercy for a silly presentment, for they presented an appeal which was made in the hundred [court] and which was not presented in the county [court]. 15. lucy of morwinstow appeals robert de scaccis and roland of kellio and peter of lancarf of robbing her of twenty shillings and eight pence, and of a cloak, price a half-mark. and it is testified by the jurors that they did not rob her, and that she is a hireling, and that a man lay with her in a garden, and the boys hooted her, so that she left her cloak, and the boys took it and pawned it for two gallons of wine. it is considered that robert do give her three pence in respect of the wine and do go quit. and roland and peter neither come nor essoin [present an excuse for nonappearance] themselves. and their pledges were nicholas brother of alfred of bodmin and herbert reeve of bodmin, who are therefore in mercy. 16. osbert church accused of the death of roland, son of reginald of kennel, on the appeal of the said reginald, was detained in gaol and defends word by word. and reginald offers proof by the body of a certain freeman, arkald, who has his [reginald's] daughter to wife, who is to prove in his stead, since he has passed the age of sixty. osbert church defends all of it. the knights of the hundred of penwith say that they suspect him of the said death. the knights of kerrier [hundred] say the same. the knights of penwith [hundred] say the same. the knights of pyder [hundred] say the same. judgment: let him purge himself by water, and reginald is in mercy, for he does not allege sight and hearing, and because he has withdrawn himself, and put another in his place, who neither saw nor heard and yet offered to prove it, and so let both reginald and arkald be in mercy. osbert is purged by the water. osbert's pledges: henry little, henry of penant, ossulf black, roger of trevithow, john of glin, ralph of trelew. 17. roger of wick [was] appealed of the death of brictmer by the appeal of hawise, brictmer's wife, and was captured in flight, as say john of winielton and ralph of mertherin, but the flight is not testified by the hundred. kerier [hundred] says the same. penwith [hundred] says the same. so is considered that he purge himself by water. he is purged. roger's pledges: ralph of trelew, ogier of kurnick, richard, simon's son, alfred malvoisin, everwin of lande, john of kewerion, warin of tiwardeni, baldwin tirel, roger of trevithow, john of glin, william of dunham, thomas, osbert's son. 18. richard, william's son, appealed luke, richard's son, and william, the servant of alan clerk, of robbery and of binding him. the appellees have not come nor essoined themselves. the county together with the wapentake says that they were appealed, not of the king's peace, but of the sheriff's peace, so that the suit was and is in the county [court], and therefore they were not attached to come before the justices. therefore the jurors are in mercy for presenting what they ought not to have presented. 19. william, hawise's son, appeals richard, son of robert of somercotes, for that he came in the king's peace to his house at somercotes, and broke his house and robbed him of.[an abrasion] shillings, and a cape and surcoat, and twenty-five fowls, and twenty shillings worth of corn [grain], and wounded him in the head with the wound that he shows; and this he offers to prove against him as the court shall consider etc. and richard comes and defends the breach of the king's peace and the housebreaking, wounding and robbery, but confesses that he came to a certain house, which william asserts to be his [william's], as to his [richard's] own proper house, which escheated into his hand on the death of roger his villein, and there he took certain chattels which were his villein's and which on his villein's death were his [richard's] own: to wit, five thraves of oats, thirteen sheaves of barley, and twenty-five fowls; and he offers the king twenty shillings for an inquest [to find] whether this be so or no. and william says that richard says this unjustly, for the said roger never had that house nor dwelt therein, nor were those chattels roger's, but he [william] held that house as his own, and the chattels there seized were his. the jurors being questioned whether roger did thus hold the house of richard in villeinage, say, yes. also the coroners and the whole county testify that [william] never showed any wound until now; and the wound that he now shows is of recent date. therefore it is considered that the appeal is null, and let richard go quit, and william be in mercy for his false claim. pledges for the amercement, gilbert, robert's son, and richard, haldeng's son. 20. astin of wispington appeals simon of edlington, for that he wickedly and in the king's peace assaulted him in his meadows and put out his eye, so that he is maimed of that eye; and this he offers to prove etc. simon comes and defends all of it word by word. and the coroners and the county testify that hitherto the appeal has been duly sued, at first by [astin's] wife, and then by [astin himself]. judgment: let law be made, and let it be in the election of the appellee whether he or astin shall carry the iron. he has chosen that astin shall carry it. astin has waged the law. simon's pledges, william of land and his frankpledge and ralph of stures. astin's pledges, roger thorpe, osgot of wispington, and william, joel's brother. afterwards came [the appellor and appellee] and both put themselves in mercy. 21. gilbert of willingham appeals gilbert, geoffrey's son, for that he in the king's peace and wickedly set fire to his house and burned it, so that after the setting fire [the appellor] went forth and raised hue and cry so that his neighbors and the township of willingham came thither, and he showed them [the appellee] in flight and therefore they pursued him with the cry; and this he offers etc. and the appellee defends all of it word by word etc. and the neighbors and the township of willingham being questioned, say that they never saw him in flight, and that [the appellor] never showed him to them. likewise the jurors say that in their belief he appeals him out of spite rather than for just cause. therefore it is considered that the appeal is null, and the appellee is in mercy for a half-mark [7s.]. pledge for the amercement, robert walo. 22. william burel appeals walter morcock, for that he in the king's peace so struck and beat margery, [william's] wife, that he killed the child in her womb, and besides this beat her and drew blood. and william of manby, the beadle, testifies that he saw the wound while fresh and the blood in the wapentake [court]. and the serjeant of the riding and the coroners and the twelve knights testify that they never saw wound nor blood. and so it is considered that the appeal is null, for one part of the appeal being quashed, it is quashed altogether, and william burel is in mercy. let him be in custody. and william manby is in mercy for false testimony. pledges for william's amercement, richard of bilsby, elias of welton. 23. william marshall fled for the death of sigerid, denis' mother, whereof denis appeals him; and he was in the prior of sixhills' frankpledge of sixhills, which is in mercy, and his chattels were two cows and one bullock. afterwards came the prior of sixhills and undertook to have william to right before the justices. and he came, and then denis, sigerid's son, came and appealed him of his mother's death. and it was testified that [denis] had an elder brother, and that nine years are past since [sigerid] died, and that she lived almost a year after she was wounded, and that denis never appealed [william] before now. therefore it is considered that the appeal is null and that denis be in mercy. pledge for the amercement, his father, ralph, son of denis. 24. alice, wife of geoffrey of carlby, appealed william, roger's son, and william his son and roger his son of the death of william her brother. and alice does not prosecute.therefore let her be in mercy and let her be arrested. to judgment against the sheriff who did not imprison the said persons who were attached, whereas they are appealed of homicide, and to judgment also as to a writ which he ought to produce. 25. hawise, thurstan's daughter, appeals walter of croxby and william miller of the death of her father and of a wound given to herself. and she has a husband, robert franchenay, who will not stir in the matter. therefore it is considered that the appeal is null, for a woman has no appeal against anyone save for the death of her husband or for rape. and let robert be in mercy on his wife's account, for a half-mark [7s.], and let the appellees be quit. pledge for robert's amercement, richard dean of mareham, who has lay property. wapentake of aswardhurn. 26. juliana of creeton appeals adam of merle of battery and robbery. and adam does not come, but essoins himself as being in the king's service beyond seas. and for that it is not allowed to anyone appealed of the king's peace to leave the land without a warrant before he has been before justices learned in the law, his pledges are in mercy: to wit, segar of arceles, alan of renington, and robert of searby. adam himself is excused from the plea by the essoin that he has cast. 27. thomas, leofwin's son, appeals alan harvester, for that he in the king's peace assaulted him as he went on the highway, and with his force carried him into alan's house, and struck him on the arm so that he broke a small bone of his arm, whereby he is maimed, and robbed him of his cape and his knife, and held him while eimma, [alan's] wife, cut off one of his testicles and ralph pilate the other, and when he was thus dismembered and ill-treated, the said alan with his force carried him back into the road, whereupon as soon as might be he raised the cry, and the neighbors came to the cry, and saw him thus ill-treated, and then at once he sent to the king's serjeant, who came and found, so [thomas] says, the robbed things in alan's house and then as soon as might be [thomas] went to the wapentake [court] and to the county [court] and showed all this. so inquiry is made of the king's sergeant, who testifies that he came to alan's house and there found the knife and the testicles in a little cup, but found not the cape. also the whole county testifies that [thomas] never before now appealed alan of breaking a bone. and so it is considered that the appeal is null, and that [thomas] be in mercy, and that the other appellees be quit. thomas also appeals emma, alan's wife, for that she in the peace aforesaid after he was placed in her lord's house cut off one of his testicles. he also appeals ralph pilate, for that he cut off the other of his testicles. 28. the twelve jurors presented in their verdict that austin, rumfar's son, appealed ralph gille of the death of his brother, so that [ralph] fled, and that william, rumfar's son, appealed benet carter of the same death, and ranulf, ralph's son, appealed hugh of hyckham of the same death and baldwin of elsham and ralph hoth and colegrim as accessories. and the coroners by their rolls testify this also. but the county records otherwise, namely, that the said ralph gille, benet, hugh, baldwin, ralph [hoth] and gocegrim were all appealed by ranulf, ralph's son, and by no one else, so that four of them, to wit, ralph gille, hugh, benet and colegrim, were outlawed at the suit of the said ranulf, and that the said persons were not appealed by anyone other than the said ranulf. and for that the county could not [be heard to] contradict the coroners and the said jurors who have said their say upon oath, it is considered etc. thereupon the county forestalled the judgment and before judgment was pronounced made fine with 200 pounds [4,000s.] [to be collected throughout the county], franchises excepted. 29. hereward, william's son, appeals walter, hugh's son, for that he in the king's peace assaulted him and wounded him in the arm with an iron fork and gave him another wound in the head; and this he offers to prove by his body as the court shall consider. and walter defends all of it by his body. and it is testified by the coroners and by the whole county that hereward showed his wounds at the proper time and has made sufficient suit. therefore it is considered that there be battle. walter's pledges, peter of gosberton church, and richard hereward's son. hereward's pledges, william his father and the prior of pinchbeck. let them come armed in the quindene of st. swithin at leicester. 30. william gering appeals william cook of imprisonment, to wit, that he with his force in the king's peace and wickedly, while [gering] was in the service of his lord guy at the forge, took him and led him to freiston to the house of william longchamp, and there kept him in prison so that his lord could not get him replevied; and this he offers to prove as the court shall consider. and william cook comes and defends the felony and imprisonment, but confesses that whereas he had sent his lord's servants to seize the beasts of the said guy on account of a certain amercement which [guy] had incurred in the court of [cook's] lord [longchamp], and which though often summoned he had refused to pay, [gering] came and rescued the beasts that had been seized and wounded a servant of [cook's] lord, who had been sent to seize them, whereupon [cook] arrested [gering] until he should find pledges to stand to right touching both the wounding and the rescue, and when [gering's] lord [guy] came for him, [cook] offered to let him be replevied, but this [guy] refused, and afterwards he repeated the offer before the king's serjeant, but even then it was refused, and then [cook] let [gering] go without taking security. and guy says that he puts himself upon the wapentake, whether the imprisonment took place in manner aforesaid, and whether he [guy] at once showed the matter to the king's serjeant, or no. and william cook does the same. and the wapentake says that the alleged [imprisonment] took place in lent, and guy did not show the matter to the wapentake until a fortnight before st. botulph's day. and the county together with the coroners says that they never heard the suit in their court. therefore it is considered that the appeal is null, and guy is in mercy. and let william and those who are appealed as accessories go quit. 31. the jurors say that andrew, sureman's son, appealed peter, leofwin's son, thomas squire and william oildene of robbery. and he does not prosecute. so he and stephen despine and baldwin long are in mercy, and the appellees go without day. afterwards comes andrew and says that [the appellees] imprisoned him by the order of william malesoures in the said william's house, so that he sent to the sheriff that the sheriff might deliver him, whereupon the sheriff sent his serjeant and others thither, who on coming there found him imprisoned and delivered him and he produces witnesses, to wit, nicholas portehors and hugh, thurkill's son, who testify that they found him imprisoned, and he vouches the sheriff to warrant this. and the sheriff, on being questioned, says that in truth he sent thither four lawful men with the serjeant on a complaint made by nicholas portehors on andrew's behalf. and those who were sent thither by the sheriff testify that they found him at liberty and disporting himself in william's house. therefore it is considered that the appeal is null [and andrew is in mercy] for his false complaint and nicholas portehors and hugh, thurkill's son, are in mercy for false testimony. andrew and hugh are to be in custody until they have found pledges [for their amercement]. 32. the jurors say that geoffrey cardun has levied new customs other than he ought and other than have been usual, to wit, in taking from every cart crossing his land at winwick with eels, one stick of eels, and from a cart with greenfish, one greenfish, and from a cart with salmon, half a salmon, and from a cart with herrings, five herrings, whereas he ought to take no custom for anything save for salt crossing his land, to wit, for a cartload, one bole of salt, and in that case the salter ought to have a loaf in return for the salt, and also if the salter's cart breaks down, the salter's horses ought to have pasture on geoffrey's land without challenge while he repairs his cart. and geoffrey comes and confesses that he takes the said customs, and ought to take them, for he and his ancestors have taken them from the conquest of england, and he puts himself on the grand assize of our lord the king, and craves that a recognition be made whether he ought to take those customs or no. and afterwards he offers the king twenty shillings that this action may be put before sir geoffrey fitzpeter [the justiciar]. pledge for the twenty shillings, richard of hinton. 33. the jurors say that hugh, son of walter priest, was outlawed for the death of roger rombald at the suit of robert rombald, and afterwards returned under the [protection of the] king's writ, and afterwards was outlawed for the same death on the appeal of geoffrey, thurstan's son. the county therefore is asked by what warrant they outlawed the same man twice for the same death, and says that of a truth in king richard's time the said hugh was outlawed at the suit of one lucy, sister of the said roger, so that for a long time afterwards he hid himself; and at length he came into the county [court] and produced letters of sir geoffrey fitzpeter in the form following: "g. fitzpeter etc. to the sheriff of northamptonshire, greeting, know thou that the king hath pardoned to hugh, son of the priest of grafton, his flight and the outlawry adjudged to him for the death of a certain slain man, and hath signified to us by his letters that we be aiding to the said hugh in reestablishing the peace between him and the kinsfolk of the slain; wherefore we command thee that thou be aiding to the said hugh in making the peace aforesaid, and do us to wit by thy letters under seal what thou hast done in this matter, since we are bound to signify the same to the king. in witness etc. by the king's writ from beyond seas." and the said letters being read in full county [court] the county told the said hugh that he must find pledges that he would be in the king's peace, and he went away to find pledges, and afterwards did not appear. but the kinsfolk of the slain, having heard that hugh had returned after his outlawry, came to the next county [court] and robert rombald produced geoffrey, thurstan's son, who said that if he saw the said hugh he would sue against him the death of the said roger, who was [his kinsman]. and the county showed him how hugh had brought the justiciar's letters pardoning him the flight and outlawry, and that he was to find pledges to stand to the king's peace, but had not returned. whereupon the king's serjeant was ordered to seek hugh and bring him to a later county [court]. and at a later county [court] geoffrey offered himself against hugh, and hugh did not appear; whereupon the king's serjeant being questioned said that he had not found him, and the county advised [geoffrey] to come to another county [court], because if in the meantime hugh could be found, he would be brought to the county [court]. then at the third county [court] the said geoffrey offered himself, and it was testified by the serjeant that hugh had not yet been found, wherefore the county said that as hugh would not appear to the king's peace, he must bear the wolf's head as he had done before. to judgment against the coroners and the twelve jurors. 34. robert of herthale, arrested for having in self-defense slain roger, swein's son, who had slain five men in a fit of madness, is committed to the sheriff that he may be in custody as before, for the king must be consulted about this matter. the chattels of him who killed the five men were worth two shillings, for which richard [the sheriff must account]. 35. sibil, engelard's daughter, appeals ralph of sandford, for that he in the king's peace and wickedly and in breach of the peace given to her in the county [court] by the sheriff, came to the house of her lord [or husband] and broke her chests and carried off the chattels, and so treated her that he slew the child that was living in her womb. afterwards she came and said that they had made a compromise and she withdrew herself, for they have agreed that ralph shall satisfy her for the loss of the chattels upon the view and by the appraisement of lawful men; and ralph has assented to this. 36. william pipin slew william [or john] guldeneman and fled. he had no chattels. let him be exacted. and hugh fuller was taken for this death and put in gaol because the said john [or william] was slain in his house. and hugh gives to the king his chattels which were taken with him, that he may have an inquest [to find] whether he be guilty thereof or no. the jurors say that he is not guilty, and so let him go quit thereof. and william picot is in mercy for having sold hugh's chattels before he was convicted of the death, and for having sold them at an undervalue, for he sold them, as he says, for three shillings, and the jurors say that they were worth seventeen shillings, for which william picot and those who were his fellows ought to account. and william says that the chattels were sold by the advice of his fellows, and his fellows deny this. 37. robert white slew walter of hugeford and fled. the jurors say that he was outlawed for the death, and the county and the coroners say that he was not outlawed, because no one sued against him. and because the jurors cannot [be heard to] contradict the county and the coroners, therefore they are in mercy, and let robert be exacted. his chattels were [worth] fifteen shillings, for which r. of ambresleigh, the sheriff, must account. 38. elyas of lilleshall fled to church for the death of a woman slain at lilleshall. he had no chattels. he confessed the death and abjured the realm. alice crithecreche and eva of lilleshall and aldith and mabel, geoffrey and robert of lilleshall, and peter of hopton were taken for the death of the said woman slain at lilleshall. and alice, at once after the death, fled to the county of stafford with some of the chattels of the slain, so it is said, and was taken in that county and brought back into shropshire and there, as the king's serjeant and many knights and lawful men of the county testify, in their presence she said, that at night she heard a tumult in the house of the slain; whereupon she came to the door and looked in, and saw through the middle of the doorway four men in the house, and they came out and caught her, and threatened to kill her unless she would conceal them; and so they gave her the pelf [booty] that she had. and when she came before the [itinerant] justices she denied all this. therefore she has deserved death, but by way of dispensation [the sentence is mitigated, so] let her eyes be torn out. the others are not suspected, therefore let them be under pledges. 39. william, john's son, appeals walter, son of ralph hose, for that when [william's] lord guy of shawbury and [william] had come from attending the pleas of our lord the king in the county court of shropshire, there came five men in the forest of haughmond and there in the king's peace and wickedly assaulted his lord guy, and so that [walter], who was the fourth among those five, wounded guy and was accessory with the others in force as aid so that guy his lord was killed, and after having wounded his lord he [walter] came to william and held him so that he could not aid his lord; and this he offers to deraign [determine by personal combat] against him as the court shall consider. and walter comes and defends all of it word by word as the court etc. it is considered that there be battle [combat] between them. the battle [combat] is waged. day is given them, at oxford on the morrow of the octave of all saints, and then let them come armed. and ralph [walter's father] gives the king a half-mark that he may have the custody of his son, [for which sum] the pledges are john of knighton and reiner of acton, and he is committed to the custody of ralph hose, reiner of acton, john of knighton, reginald of leigh, adam of mcuklestone, william of bromley, stephen of ackleton, eudo of mark. 40. robert, son of robert of ferrers, appeals ranulf of tattesworth, for that he came into robert's garden and wickedly and in the king's peace assaulted robert's man roger, and beat and wounded him so that his life was despaired of, and robbed him [roger?] of a cloak, a sword, a bow and arrows: and the said roger offers to prove this by his body as the court shall consider. and ranulf comes and defends the whole of it, word by word, and offers the king one mark of silver that he may have an inquest of lawful knights [to say] whether he be guilty thereof or no. also he says that roger has never until now appealed him of this, and prays that this be allowed in his favor. [ranulf's] offering is accepted. the jurors say that in truth there was some quarrel between robert's gardener, osmund, and some footboys, but ranulf was not there, and they do not suspect him of any robbery or any tort done to robert or to osmund. also the county records that the knights who on robert's complaint were sent to view osmund's wounds found him unwounded and found no one else complaining, and that robert in his plaint spoke of osmund his gardener and never of roger, and that roger never came to the county [court] to make this appeal. therefore it is considered that ranulf be quit, and robert and roger in mercy. pledge for ranulf's mark, philip of draycot. pledges for the amercement, henry of hungerhill, and richard meverell. pledge for roger, the said robert. 41. one l. is suspected by the jurors of being present when reinild of hemchurch was slain, and of having aided and counseled her death. and she defends. therefore let her purge herself by the ordeal of iron; but as she is ill, the ordeal is respited until her recovery. 42. andrew of burwarton is suspected by the jurors of the death of one hervey, for that he concealed himself because of that death. therefore let him purge himself by ordeal of water. 43. godith, formerly wife of walter palmer, appeals richard of stonall, for that he in the king's peace wickedly and by night with his force came to her house and bound her and her husband, and afterwards slew the said walter her husband; and this she offers to prove against him as wife of the slain as the court shall consider. and he defends all of it. and the jurors and the whole neighborhood suspect him of that death. and so it is considered that he purge himself by ordeal of iron for he has elected to bear the iron. 44. the jurors of oflow hundred say that the bailiffs of tamworth have unjustly taken toll from the knights of staffordshire, to wit, for their oxen and other beasts. and the men of lichfield complain that likewise they have taken toll from them, more especially in staffordshire. and the bailiffs deny that they take anything from the knights in staffordshire. and for that they cannot [be heard to] contradict the jurors, the bailiffs are in mercy. as to the men of lichfield, [the tamworth bailiffs] say that they ought to have, and in king henry's time had, toll of them, more especially of the merchants, as well in staffordshire as in warwickshire. and the burgesses of lichfield offer the king a half-mark for an inquest by the county. and the county records that in king henry's time the men of lichfield did not pay toll in staffordshire. therefore the bailiffs are in mercy. chapter 7 the times 1215-1272 baron landholders' semi-fortified stone manor houses were improved and extended. many had been licensed to be embattled or crenelated [wall indented at top with shooting spaces]. they were usually quadrangular around a central courtyard. the central and largest room was the hall, where people ate and slept. the hall had a hearth for fire in the center of the room if the hall was one story high. sometimes the lord had a room with a sleeping loft above it. if the hall was more than one story high, it had a fireplace at one end so that the smoke could go up and out the roof. other rooms each had a fireplace. there were small windows around the top story and on the inside of the courtyard. they were usually covered with oiled paper. windows of large houses were of opaque glass supplied by a glassmaking craft. the glass was thick, uneven, distorted, and greenish in color. the walls were plastered. the floor was wood with some carpets. roofs were timbered with horizontal beams. many roofs had tiles supplied by the tile craft, which baked the tiles in kilns or over an open fire. because of the hazard of fire, the kitchen was often a separate building, with a covered way connecting it to the hall. it had one or two open fires in fireplaces, and ovens. sometimes there was a separate room for a dairy. furniture included heavy wood armchairs for the lord and lady, stools, benches, trestle tables, chests, and cupboards. outside was an enclosed garden with cabbages, peas, beans, beetroots, onions, garlic, leeks, lettuce, watercress, hops, herbs, nut trees for oil, some flowers, and a fish pond and well. bees were kept for their honey. nobles, doctors, and attorneys wore tunics to the ankle and an over-tunic almost as long, which was lined with fur and had long sleeves. a hood was attached to it. a man's hair was short and curled, with bangs on the forehead. the tunic of merchants and middle class men reached to the calf. the laborer wore a tunic that reached to the knee, cloth stockings, and shoes of heavy felt, cloth, or perhaps leather. ladies wore a full-length tunic with moderate fullness in the skirt, and a low belt, and tight sleeves. a lady's hair was concealed by a round hat tied on the top of her head. over her tunic, she wore a cloak. monks and nuns wore long black robes with hoods. the barons now managed and developed their estates to be as productive as possible, often using the successful management techniques of church estates. they kept records of their fields, tenants, and services owed by each tenant, and duties of the manor officers, such as supervision of the ploughing and harrowing. annually, the manor's profit or loss for the year was calculated. most manors were self-supporting except that iron for tools and horseshoes and salt for curing usually had to be obtained elsewhere. wine, tar, canvas and millstones were imports from other countries and bought at fairs, as was fish, furs, spices, and silks. sheep were kept in such large numbers that they were susceptible to a new disease "scab". every great household was bound to give alms. as feudalism became less military and less rough, daughters were permitted to inherit fiefs. it became customary to divide the property of a deceased man without a son equally among his daughters. lords were receiving homage from all the daughters and thereby acquiring marriage rights over all of them. also, if a son predeceased his father but left a child, that child would succeed to the father's land in the same way that the deceased would have. manors averaged about ten miles distance between each other, the land in between being unused and called "wasteland". statutes after a period of civil war proscribing the retaking of land discouraged the enclosure of waste land. husbandry land held in villeinage was inherited according to the custom of its manor as administered in the lordâ�s manorial court. (the royal courts had jurisdiction of land held in socage. i.e. free tenure.) the heir could be the oldest son, the youngest son, a son chosen by the father to succeed him, or divided among the sons. if there were no sons, one of the daughters inherited the land or it was divided among all the daughters. if there were no heirs, the land went back to the lord. land could not be sold or alienated so that the heir did not inherit, without the consent of the lord. manorial custom also determined the manner of descent of goods and chattels. a common custom for a villein was that his best beast go to his lord as heriot and his second best beast go to the parish priest as mortuary. then, after debts and burial expenses had been paid, a number of tools and utensils needed for husbandry and housekeeping went with the land to its heir. these were the â�heirloomsâ�, â�loomâ� in old english meaning tool. this usually included, for a holding of more than 5 acres, a coulter, a plowshare, a yoke, a cart, an axe, a cauldron, a pan, a dish, and a cask. finally, the remaining goods and chattels went one-third to the widow, one-third to his children except for the heir to the land, and one-third according to the deceasedâ�s last will and testament. a son might take his share before the death of his father in order to go out into the world and seek his fortune, for instance in the church or military, upon which event the father had to pay his lord a fine for his son permanently leaving the manor. many country boys became bound apprentices in nearby boroughs or farm laborers. others married heiresses of land. by the custom of â�curtesy of the nationâ�, he held this land for his lifetime, even if his wife predeceased him. if a man remained on the family land, he had no right to marry. often, there were agreements over land holdings that were recorded in the manor books. for instance, it was common for a father or mother to hand his or her holding over to the heir in exchange for sustenance in old age. an heir usually did not marry until after receiving his land. manorial custom determined whether a fatherâ�s consent was necessary for a son or daughter to marry, the nature of any agreement (â�trothplightâ�) between the families as to lands and goods brought to the marriage, the amount of her marriage portion, and the sonâ�s endowment (her â�dowerâ�) of lands and goods promised to the bride at the church door that would provide for her support after his death. if dower was not specified, it was understood to be one-third of all lands and tenements. at the next hallmote, if manorial custom required it, the son would pay a fine to his lord for entry onto the land and for license to marry. from 1246, priests taught that betrothal and consummation constituted irrevocable marriage. some villeins bought out their servitude by paying a substitute to do his service or paying his lord a firm (from hence, the words farm and farmer) sum to hire an agricultural laborer in his place. this made it possible for a farm laborer to till one continuous piece of land instead of scattered strips. looms were now mounted with two bars. women did embroidery. the clothing of most people was made at home, even sandals. the village tanner and bootmaker supplied long pieces of soft leather for more protection than sandals. tanning mills replaced some hand labor. the professional hunter of wolves, lynx, or otters supplied head coverings. every village had a smith and possibly a carpenter for construction of ploughs and carts. the smith obtained coal from coal fields for heating the metal he worked. horse harnesses were homemade from hair and hemp. there were watermills and/or windmills for grinding grain, for malt, and/or for fulling cloth. the position of the sails of the windmills was changed by manual labor when the direction of the wind changed. most men wore a knife because of the prevalence of murder and robbery. it was an every day event for a murderer to flee to sanctuary in a church, which would then be surrounded by his pursuers while the coroner was summoned. usually, the fugitive would confess, pay compensation, and agree to leave the nation permanently. county courts were the center of decision-making regarding judicial, fiscal, military, and general administrative matters. the writs for the conservation of the peace, directing the taking of the oath, the pursuit of malefactors, and the observance of watch and ward, were proclaimed in full county court; attachments were made in obedience to them in the county court. the county offices were: sheriff, coroner, escheator, and constable or bailiff. there were 28 sheriffs for 38 counties. the sheriff was usually a substantial landholder and a knight who had been prominent in the local court. he usually had a castle in which he kept persons he arrested. he no longer bought his office and collected certain rents for himself, but was a salaried political appointee of the king. he employed a deputy or undersheriff, who was an attorney, and clerks. if there was civil commotion or contempt of royal authority, the sheriff of the county had power to raise a posse of armed men to restore order. the coroner watched the interests of the crown and had duties in sudden deaths, treasure trove, and shipwreck cases. there were about five coroners per county and they served for a number of years. they were chosen by the county court. the escheator was appointed annually by the treasurer to administer the crown's rights in feudal land, which until 1242 had been the responsibility of the sheriff. he was usually chosen from the local gentry. the constable and bailiff operated at the hundred and parish [the geographical area of a churchâ�s members] level to detect crime and keep the peace. they assisted sheriffs and justices of the peace, organized watches for criminals and vagrants at the village level, and raised the hue and cry along the highway and from village to village in pursuit of offenders who had committed felony or robbery. the constables also kept the royal castles; they recruited, fed, and commanded the castle garrison. county knights served sheriffs, coroners, escheators, and justices on special royal commissions of gaol-delivery. they sat in judgment in the county court at its monthly meetings, attended the two great annual assemblies when the lord, knights and freeholders of the county gathered to meet the itinerant justices who came escorted by the sheriff and weapon bearers. they served on the committees which reviewed the presentments of the hundreds and village, and carried the record of the county court to westminster when summoned there by the kings' justices. they served on the grand assize. as elected representatives of their fellow knights of the county, they assessed any taxes due from each hundred. election might be by nomination by the sheriff from a fixed list, by choice, or in rotation. they investigated and reported on local abuses and grievances. the king's justices and council often called on them to answer questions put to them on oath. in the villages, humbler freeholders and sokemen were elected to assess the village taxes. six villeins answered for the village's offenses before the royal itinerant justice. reading and writing in the english language was taught. the use of english ceased to be a mark of vulgarity. in 1258 the first governmental document was issued in english as well as in latin and french, and later latin started falling into disuse. boys of noblemen were taught reading, writing, latin, a musical instrument, athletics, riding, and gentlemanly conduct. girls were taught reading, writing, music, dancing, and perhaps household nursing and first aid, spinning, embroidery, and gardening. girls of high social position were also taught riding and hawking. grammar schools taught, in latin, grammar, dialectic (ascertaining word meaning by looking at its origin, its sound (e.g. soft or harsh), its power (e.g. robust and strong sound), its inflection, and its order; and avoiding obscurity and ambiguity in statements), and rhetoric [art of public speaking, oratory, and debate]. the teacher possessed the only complete copy of the latin text, and most of the school work was done orally. though books were few and precious, the students read several latin works. girls and boys of high social position usually had private teachers for grammar school, while boys of lower classes were sponsored at grammar schools such as those at oxford. discipline was maintained by the birch or rod. there was no examination for admission as an undergraduate to oxford, but a knowledge of latin with some skill in speaking latin was a necessary background. the students came from all backgrounds. some had their expenses paid by their parents, while others had the patronage of a churchman, a religious house, or a wealthy layman. they studied the "liberal arts", which derived its name from "liber" or free, because they were for the free men of rome rather than for the economic purposes of those who had to work. the works of greek authors such as aristotle were now available; the european monk thomas aquinas had edited aristotle's works to reconcile them to church doctrine. he opined that man's intellectual use of reason did not conflict with the religious belief that revelation came only from god, because reason was given to man by god. he shared aristotle's belief that the earth was a sphere, and that the celestial bodies moved around it in perfect circles. latin learning had already been absorbed without detriment to the church. a student at oxford would become a master after graduating from a seven year course of study of the seven liberal arts: [grammar, rhetoric (the source of law), aristotelian logic (which differentiates the true from the false), arithmetic, including fractions and ratios, (the foundation of order), geometry, including methods of finding the length of lines, the area of surfaces, and the volume of solids, (the science of measurement), astronomy (the most noble of the sciences because it is connected with divinity and theology), music and also aristotle's philosophy of physics, metaphysics, and ethics; and then lecturing and leading disputations for two years. he also had to write a thesis on some chosen subject and defend it against the faculty. a master's degree gave one the right to teach. further study for four years led to a doctorate in one of the professions: theology and canon or civil law. there were about 1,500 students in oxford. they drank, played dice, quarreled a lot and begged at street corners. there were mob fights between students from the north and students from the south and between students and townsmen. but when the mayor of oxford hanged two students accused of being involved in the killing of a townswoman, many masters and students left for cambridge. in 1214, a charter created the office of chancellor of the university at oxford. he was responsible for law and order and, through his court, could fine, imprison, and excommunicate offenders and expel undesirables such as prostitutes from the town. he had authority over all crimes involving scholars, except murder and mayhem. the chancellor summoned and presided over meetings of the masters and came to be elected by indirect vote by the masters who had schools, usually no more than a room or hall with a central hearth which was hired for lectures. students paid for meals there. corners of the room were often partitioned off for private study. at night, some students slept on the straw on the floor. six hours of sleep were considered sufficient. in 1231, the king ordered that every student must have his name on the roll of a master and the masters had to keep a list of those attending his lectures. in 1221 the friars established their chief school at oxford. they were bound by oaths of poverty, obedience, and chastity, but were not confined within the walls of a monastery. they walked barefoot from place to lace preaching. they begged for their food and lodgings. they replaced monks, who had become self-indulgent, as the most vital spiritual force among the people. the first college was founded in 1264 by walter de merton, former chancellor to the king, at oxford. a college had the living arrangements of a hall, with the addition of monastic-type rules. a warden and about 30 scholars lived and ate meals together in the college buildings. merton college's founding documents provided that: [1] "the house shall be called the house of the scholars of merton, and it shall be the residence of the scholars forever. [2] there shall be a constant succession of scholars devoted to the study of letters, who shall be bound to employ themselves in the study of arts or philosophy, the canons or theology. let there also be one member of the collegiate body, who shall be a grammarian, and must entirely devote himself to the study of grammar; let him have the care of the students in grammar, and to him also let the more advanced have recourse without a blush, when doubts arise in their faculty. [3] there is to be one person in every chamber, where scholars are resident, of more mature age than the others, who is to make his report of their morals and advancement in learning to the warden [4] the scholars who are appointed to the duty of studying in the house are to have a common table, and a dress as nearly alike as possible. [5] the members of the college must all be present together, as far as their leisure serves, at the canonical hours and celebration of masses on holy and other days. [6] the scholars are to have a reader at meals, and in eating together they are to observe silence, and to listen to what is read. in their chambers, they must abstain from noise and interruption of their fellows; and when they speak they must use the latin language. [7] a scrutiny shall be held in the house by the warden and the seniors, and all the scholars there present, three times a year; a diligent inquiry is to be instituted into the life, conduct, morals, and progress in learning, of each and all; and what requires correction then is to be corrected, and excesses are to be visited with condign punishment. . ." educated men (and those of the 1200s through the 1500s), believed that the earth was the center of the universe and that it was surrounded by a giant spherical dome on which the stars were placed. the sun and moon and planets were each on a sphere around the earth that was responsible for their movements. the origin of the word "planet" meant "wanderer" because the motion of the planets changed in direction and speed. astrology explained how the position of the stars and planets influenced man and other earthly things. for instance, the position of the stars at a person's birth determined his character. the angle and therefore potency of the sun's rays influenced climate, temperament, and changes of mortal life such as disease and revolutions. unusual events such as the proximity of two planets, a comet, an eclipse, a meteor, or a nova were of great significance. a star often was thought to presage the birth of a great man or a hero. there was a propitious time to have a marriage, go on a journey, make war, and take herbal medicine or be bled by leeches, the latter of which was accompanied by religious ceremony. cure was by god, with medical practitioners only relieving suffering. but there were medical interventions such as pressure and binding were applied to bleeding. arrow and sword wounds to the skin or to any protruding intestine were washed with warm water and sewn up with needle and silk thread. ribs were spread apart by a wedge to remove arrow heads. fractured bones were splinted or encased in plaster. dislocations were remedied. hernias were trussed. bladder stones blocking urination were pushed back into the bladder or removed through an artificial opening in the bladder. surgery was performed by butchers, blacksmiths, and barbers. roger bacon, an oxford master, began the science of physics. he read arab writers on the source of light rays being from the object seen, the nature of refraction and reflection of light, and the properties of lenses. he studied the radiation of light and heat. he studied angles of reflection in plane, spherical, cylindrical, and conical mirrors, in both their concave and convex aspects. he did experiments in refraction in different media, e.g. air, water, and glass, and knew that the human cornea refracted light, and that the human eye lens was doubly convex. he comprehended the magnifying power of convex lenses and conceptualized the combination of lenses which would increase the power of vision by magnification. he realized that rays of light pass so much faster than those of sound or smell that the time is imperceptible to humans. he knew that rays of heat and sound penetrate all matter without our awareness and that opaque bodies offered resistance to passage of light rays. he knew the power of parabolic concave mirrors to cause parallel rays to converge after reflection to a focus and knew that a mirror could be produced that would start a fire at a fixed distance. these insights made it possible for jewelers and weavers to use lenses to view their work instead of glass globes full of water, which distorted all but the center of the image: "spherical aberration". the lens, whose opposite surfaces were sections of spheres, took the place of the central parts of the globe over the image. he knew about magnetic poles attracting, if different and repelling, if the same, and the relation of magnets' poles to those of the heavens and earth. he calculated the circumference of the world and the latitude and longitude of terrestrial positions. he foresaw sailing around the world. he studied the planetary motions and astronomical tables to forecast future events. he did calculations on days in a month and days in a year which later contributed to the legal definition of a leap year. his explanation of a rainbow as a result of natural laws was contrary to theological opinion that a rainbow was placed in the heavens to assure mankind that there was not to be another universal deluge. bacon began the science of chemistry when he took the empirical knowledge as to a few metals and their oxides and some of the principal alkalis, acids, and salts to the abstract level of metals as compound bodies the elements of which might be separated and recomposed and changed among the states of solid, liquid, and gas. when he studied man's physical nature, health, and disease, he opined that the usefulness of a talisman was not to bring about a physical change, but to bring the patient into a frame of mind more conducive to physical healing. he urged that there be experiments in chemistry to develop medicinal drugs. he studied different kinds of plants and the differences between arable land, forest land, pasture land, and garden land. bacon was an extreme proponent of the inductive method of finding truths, e.g. by categorizing all available facts on a certain subject to ascertain the natural laws governing it. his contribution to the development of science was abstracting the method of experiment from the concrete problem to see its bearing and importance as a universal method of research. he advocated changing education to include studies of the natural world using observation, exact measurement, and experiments. the making and selling of goods diverged e.g. as the cloth merchant severed from the tailor and the leather merchant severed from the butcher. these craftsmen formed themselves into guilds, which sought charters to require all craftsmen to belong to the guild of their craft, to have legal control of the craft work, and be able to expel any craftsman for disobedience. these guilds were composed of master craftsmen, their journeymen, and apprentices. these guilds determined the wages and working conditions of the craftsmen and petitioned the borough authorities for ordinances restraining trade, for instance by controlling the admission of outsiders to the craft, preventing foreigners from selling in the town except at fairs, limiting purchases of raw materials to suppliers within the town, forbidding night work, restricting the number of apprentices to each master craftsmen, and requiring a minimum number of years for apprenticeships. in return, these guilds assured quality control. in some boroughs, they did work for the town, such as maintaining certain defensive towers or walls of the town near their respective wards. in some boroughs, fines for infractions of these regulations were split between the guild and the government. in some towns, the merchant guilds attempted to directly regulate the craft guilds. crafts fought each other. there was a street battle with much bloodshed between the goldsmiths and the parmenters and between the tailors and the cordwainers in 1267 in london. there was also a major fight between the goldsmiths and the tailors in 1268. the parish clerks' company was chartered in 1233. the citizens of london had a common seal for the city. london merchants traveled throughout the nation with goods to sell exempt from tolls. most of the london aldermen were woolmongers, vintners, skinners, and grocers by turns or carried on all these branches of commerce at once. jews were allowed to make loans with interest up to 2d. a week for 20s. lent. there are three inns in london. inns typically had narrow facades, large courtyards, lodging and refreshment for the well-off, warehousing and marketing facilities for merchants, and stabling and repairs for wagons. caregiving infirmaries such as "bethlehem hospital" were established in london. one was a lunatic infirmary founded by the sheriff of london. only tiles were used for roofing in london, because wood shingles were fire hazards and fires in london had been frequent. some areas near london are disclaimed by the king to be royal forest land, so all citizens could hunt there and till their land there without interference by the royal foresters. the sheriff's court in london lost its old importance and handled mainly trespass and debt cases, while important cases went to the hustings, which was presided over by the mayor with the sheriffs and aldermen in attendance. from the early 1200s, the mayor's court took on the work which the weekly husting could not manage. this consisted mostly of assault and robbery cases. murder and manslaughter cases were left to the royal courts. london aldermen were elected by the citizens of their respective wards in wardmotes, in which was also arranged the watch, protection against fire, and probably also assessment of the taxes within the ward. there was much effort by the commoners to influence the governance of the city. in 1261 they forced their way into the townmote and by this brute show of strength, which threatened riot, they made their own candidate mayor. subsequent elections were tumultuous. the tower of london now had outer walls of fortress buildings surrounded by a wide and deep moat, over which was one stone causeway and wooden drawbridge. within this was an inner curtain wall with twelve towers and an inner moat. the palace within was a principal residence of english monarchs, whose retinue was extensive, including the chief officers of state: lord high steward, lord high chancellor, lord high treasurer, lord great chamberlain, lord high constable, keeper of the seals, and the king's marshall; lesser officials such as the chamberlain of the candles, keeper of the tents, master steward of the larder, usher of the spithouse, marshall of the trumpets, keeper of the books, keeper of the dishes and of the cups, and steward of the buttery; and numbers of cat hunters, wolf catchers, clerks and limners, carters, water carriers, washerwomen and laundresses, chaplains, lawyers, archers, huntsmen, hornblowers, barbers, minstrels, guards and servitors, and bakers and confectioners. the fortress also contained a garrison, armory, chapels, stables, forge, wardrobe for a tailor's workroom and secure storage of valuable clothes, silver plate, and expensive imports such as sugar, rice, almonds, dried fruits, cinnamon, saffron, ginger, galingale, zedoary, pepper, nutmeg, and mace. there was a kitchen with courtyard for cattle, poultry, and pigs; dairy, pigeon loft, brewery, beehives, fruit stores, gardens for vegetables and herbs; and sheds for gardeners. there was also a mint, which minted a gold penny worth 2s. of silver, a jewel house, and a menagerie (with leopards, lions, a bear, and an elephant). the fortress also served as a state prison. most prisoners there had opposed the royal will; they were usually permitted to live in quarters in the same style they were used to, including servants and visits by family and friends. but occasionally prisoners were confined in irons in dark and damp dungeons. the king's family, immediate circle, and most distinguished guests dined elegantly in the great hall at midday. they would first wash their hands in hot water poured by servants over bowls. the table had silver plate, silver spoons, and cups of horn, crystal, maple wood, or silver laid on a white cloth. each guest brought his own knife in a leather sheath attached to a belt or girdle. a procession of servitors brought the many dishes to which the gentlemen helped the ladies and the young their seniors by placing the food in scooped-out half-loaves of bread that were afterwards distributed to the poor. a wine cup was handed around the table. in the winter after dinner, there would often be games of chess or dice or songs of minstrels, and sometimes dancing, juggler or acrobat displays, or storytelling by a minstrel. in the summer there were outdoor games and tournaments. hunting with hounds or hawks was popular with both ladies and gentlemen. the king would go to bed on a feather mattress with fur coverlet that was surrounded by linen hangings. his grooms would sleep on trundle beds in the same room. the queen likewise shared her bedchamber with several of her ladies sleeping on trundle beds. breakfast was comprised of a piece of bread and a cup of wine taken after the daily morning mass in one of the chapels. sometimes a round and deep tub was brought into the bedchamber by servants who poured hot water onto the bather in the tub. baths were often taken in the times of henry iii, who believed in cleanliness and sanitation. henry iii was also noted for his luxurious tastes. he had a linen table cloth, goblets of mounted cocoa-nut, a glass cup set in crystal, and silk and velvet mattresses, cushions, and bolster. he had many rooms painted with gold stars, green and red lions, and painted flowers. to his sister on her marriage, he gave goldsmith's work, a chess table, chessmen in an ivory box, silver pans and cooking vessels, robes of cloth of gold, embroidered robes, robes of scarlet, blue, and green fine linen, genoese cloth of gold, two napkins, and thirteen towels. in the king's 1235 grant to oxford, the mayor and good men were authorized to take weekly for three years 1/2 d. on every cart entering the town loaded with goods, if it was from the county, or 1d. if it came from outside the county; 1/4 d. for every horse load, except for brushwood; 1/2 d. on every horse, mare, ox, or cow brought to sell; and 1/2 d. for every five sheep, goats, or pigs. english ships had one mast with a square sail. the hulls were made of planks overlapping each other. there was a high fore castle [tower] on the bow, a top castle on the mast, and a high stern castle from which to shoot arrows down on other ships. there were no rowing oars, but steering was still by an oar on the starboard side of the ship. the usual carrying capacity was 30 tuns [big casks of wine each with about 250 gallons]. on the coasts there were lights and beacons. harbors at river mouths were kept from silting up. ships were loaded from piers. the construction of london bridge had just been finished. bricks began to be imported for building. about 10% of the population lived in towns. churches had stained glass windows. newcastle-on-tyne received these new rights: 1. and that they shall justly have their lands and tenures and mortgages and debts, whoever owes them to them. 2. concerning their lands and tenures within the town, right shall be done to them according to the custom of the city winton. 3. and of all their debts which are lent in newcastle-on-tyne and of mortgages there made, pleas shall be held at newcastle-on-tyne. 4. none of them shall plead outside the walls of the city of newcastle-on-tyne on any plea, except pleas of tenures outside the city and except the minters and my ministers. 5. that none of them be distrained by any without the said city for the repayment of any debt to any person for which he is not capital debtor or surety. 6. that the burgesses shall be quit of toll and lastage [duty on a ship's cargo] and pontage [tax for repairing bridges] and have passage back and forth. 7. moreover, for the improvement of the city, i have granted them that they shall be quit of year's gift and of scotale [pressure to buy ale at the sheriff's tavern], so that my sheriff of newcastle-on-tyne or any other minister shall not make a scotale. 8. and whosoever shall seek that city with his merchandise, whether foreigners or others, of whatever place they may be, they may come sojourn and depart in my safe peace, on paying the due customs and debts, and any impediment to these rights is prohibited. 9. we have granted them also a merchant guild. 10. and that none of them [in the merchant guild] shall fight by combat. the king no longer lives on his own from income from his own lands, but takes money from the treasury. a tax of a percentage of 1/15 th of personal property was levied in 1225 for a war, in return for which the king signed the magna carta. it was to be paid by all tenants-in-chief, men of the royal domain, burgesses of the boroughs and cities, clerical tenants-in-chief, and religious houses. the percentage tax came to be used frequently and ranged from about 1/40 th to 1/5 th. in 1294, this tax was bifurcated into one percentage amount for the rural districts and a higher one for urban districts, because the burgesses had greater wealth and much of it was hard to uncover because it was in the possession of customers and debtors. it was usually 1/10 th for towns and royal domains and 1/15 th in the country. this amount of money collected by this tax increased with the wealth of the country. the king takes custody of lands of lunatics and idiots, as well as escheats of land falling by descent to aliens. henry iii took 20s. from his tenants-in-chief for the marriage of his daughter, and two pounds for the knighting of his son. by 1250, the king was hiring soldiers at 2s. per day for knights, and 9d. a day for less heavily armed soldiers, and 6d. a day for crossbowmen. some castle-guard was done by watchmen hired at 2d. a day. ships were impressed when needed. sometimes private ships were authorized to ravage the french coasts and take what spoil they could. while king henry iii was underage, there was much controversy as to who should be his ministers of state, such as justiciar, chancellor, and treasurer. this led to the concept that they should not be chosen by the king alone. after he came of age, elected men from the baronage fought to have meetings and his small council in several conferences called great councils or parliaments (from french "to speak the mind") to discuss the levying of taxes and the solution of difficult legal cases, the implementation of the magna carta, the appointment of the king's ministers and sheriffs, and the receipt and consideration of petitions. the barons paid 1/30 th tax on their moveable property to have three barons of their choice added to the council. statutes were enacted. landholders were given the duty of electing four of their members in every county to ensure that the sheriff observed the law and to report his misdemeanors to the justiciar. they were also given the duty of electing four men from the county from whom the exchequer was to choose the sheriff of the year. earl montfort and certain barons forced king henry iii to summon a great council or parliament in 1265 in which the common people were represented officially by two knights from every county, two burgesses from every borough, and two representatives from each major port. so the king's permanent small council became a separate body from parliament and its members took a specific councilor's oath in 1257 to give faithful counsel, to keep secrecy, to prevent alienation of ancient demesne, to procure justice for the rich and poor, to allow justice to be done on themselves and their friends, to abstain from gifts and misuse of patronage and influence, and to be faithful to the queen and to the heir. the law the barons forced successive kings to sign the magna carta until it became the law of the land. it became the first statute of the official statute book. its provisions express the principle that a king is bound by the law and is not above it. however, there is no redress if the king breaches the law. the magna carta was issued by john in 1215. a revised version was issued by henry iii in 1225 with the forest clauses separated out into a forest charter. the two versions are replicated together, with the formatting of each indicated in the titles below. {magna carta 1215} magna carta 1215 & 1225 magna carta 1225 {john, by the grace of god, king of england, lord of ireland, duke of normandy and aquitaine, and count of anjou: to the archbishops, bishops, abbots, earls, barons, justiciaries, foresters, sheriffs, reeves, ministers, and all bailiffs and others, his faithful subjects, greeting. know ye that in the presence of god, and for the health of our soul, and the souls of our ancestors and heirs, to the honor of god, and the exaltation of holy church, and amendment of our realm, by the advice of our reverend fathers, stephen, archbishop of canterbury, primate of all england, and cardinal of the holy roman church; henry, archbishop of dublin; william of london, peter of winchester, jocelin of bath and glastonbury, hugh of lincoln, walter of worcester, william of coventry, and benedict of rochester, bishops; master pandulph, the pope's subdeacon and familiar; brother aymeric, master of the knights of the temple in england; and the noble persons, william marshall, earl of pembroke; william, earl of salisbury; william, earl of warren; william, earl of arundel; alan de galloway, constable of scotland; warin fitz-gerald, peter fitz-herbert, hubert de burgh, seneshal of poitou, hugh de neville, matthew fitz-herbert, thomas basset, alan basset, philip daubeny, robert de roppelay, john marshall, john fitz-hugh, and others, our liegemen:} henry by the grace of god, king of england, lord of ireland, duke of normandy and guyan and earl of anjou, to all archbishops, bishops, abbots, priors, earls, barons, sheriffs, provosts, officers and to all bailiffs and other our faithful subjects which shall see this present charter, greeting. know ye that we, unto the honor of almighty god, and for the salvation of the souls of our progenitors and successors kings of england, to the advancement of holy church and amendment of our realm, of our mere and free will, have given and granted to all archbishops, bishops, abbots, priors, earls, barons, and to all free men of this our realm, these liberties following, to be kept in our kingdom of england forever. [i. a confirmation of liberties] first, we have granted to god, and by this our present charter confirmed, for us and our heirs forever, that the english church shall be free and enjoy her whole rights and her liberties inviolable. {and that we will this so to be observed appears from the fact that we of our own free will, before the outbreak of the dissensions between us and our barons, granted, confirmed, and procured to be confirmed by pope innocent iii the freedom of elections, which is considered most important and necessary to the english church, which charter we will both keep ourself and will it to be kept with good faith by our heirs forever.} we have also granted to all the free men of our realm, for us and our heirs forever, all the liberties underwritten, to have and to hold to them and their heirs of us and our heirs. [ii. the relief of the king's tenant of full age] if any of our earls, barons, or others who hold of us in chief by knight's service dies, and at the time of his death his heir is of full age and owes to us a relief, he shall have his inheritance on payment of [no more than] the old relief; to wit, the heir or heirs of an earl, for an entire earldom, 100 pounds [2,000s.]; the heir or heirs of a baron of an entire barony, {100 pounds} 100 marks [67 pounds or 1340s.]; the heir or heirs of an entire knight's fee, 100s. at the most [about 1/3 of a knight's annual income]; and he who owes less shall give less, according to the old custom of fees. [iii. the wardship of an heir within age. the heir a knight] but if the heir of such be under age, his lord shall not have the ward of him, nor of his land, before that he has taken of him homage. if, however, any such heir is under age and in ward, he shall have his inheritance without relief or fine when he comes of age, that is, twenty-one years of age. so that if such an heir not of age is made a knight, yet nevertheless his land shall remain in the keeping of his lord unto the aforesaid term. [iv. no waste shall be made by a guardian in ward's lands] the guardian of the land of any heir thus under age shall take therefrom only reasonable issues, customs, and services, without destruction or waste of men or goods. and if we commit the custody of any such land to the sheriff or any other person answerable to us for the issues of the same land, and he commits destruction or waste, we will take an amends from him and recompense therefore. and the land shall be committed to two lawful and discreet men of that fee, who shall be answerable for the issues of the same land to us or to whomsoever we shall have assigned them. and if we give or sell the custody of any such land to any man, and he commits destruction or waste, he shall lose the custody, which shall be committed to two lawful and discreet men of that fee, who shall, in like manner, be answerable to us as has been aforesaid. [v. guardians shall maintain the inheritance of their wards and of bishopricks, etc.] the guardian, so long as he shall have the custody of the land, shall keep up and maintain the houses, parks, fishponds, pools, mills, and other things pertaining thereto, out of the issues of the same, and shall restore to the heir when he comes of age, all his land stocked with {ploughs and tillage, according as the season may require and the issues of the land can reasonably bear} ploughs and all other things, at the least as he received it. all these things shall be observed in the custodies of vacant archbishopricks, bishopricks, abbeys, priories, churches, and dignities, which appertain to us; except this, that such custody shall not be sold. [vi. heirs shall be married without disparagement] heirs shall be married without loss of station. {and the marriage shall be made known to the heir's nearest of kin before it is agreed.} [vii. a widow shall have her marriage, inheritance, and querentine (period of forty days during which the widow has a privilege of remaining in the mansion house of which her husband died seized). the king's widow, etc.] a widow, after the death of her husband, shall immediately and without difficulty have her marriage portion [property given to her by her father] and inheritance. she shall not give anything for her marriage portion, dower, or inheritance which she and her husband held on the day of his death, and she may remain in her husband's house for forty days after his death, within which time her dower shall be assigned to her. if that house is a castle and she leaves the castle, then a competent house shall forthwith be provided for her, in which she may honestly dwell until her dower is assigned to her as aforesaid; and in the meantime her reasonable estovers of the common [necessaries or supplies such as wood], etc. no widow shall be compelled [by penalty of fine] to marry so long as she has a mind to live without a husband, provided, however, that she gives security that she will not marry without our assent, if she holds of us, or that of the lord of whom she holds, if she holds of another. [viii. how sureties shall be charged to the king] neither we nor our bailiffs shall seize any land or rent for any debt as long as the debtor's goods and chattels suffice to pay the debt and the debtor himself is ready to satisfy therefore. nor shall the debtor's sureties be distrained as long as the debtor is able to pay the debt. if the debtor fails to pay, not having the means to pay, or will not pay although able to pay, then the sureties shall answer the debt. and, if they desire, they shall hold the debtor's lands and rents until they have received satisfaction of that which they had paid for him, unless the debtor can show that he has discharged his obligation to them. {if anyone who has borrowed from the jews any sum of money, great or small, dies before the debt has been paid, the heir shall pay no interest on the debt as long as he remains under age, of whomsoever he may hold. if the debt falls into our hands, we will take only the principal sum named in the bond.} {and if any man dies indebted to the jews, his wife shall have her dower and pay nothing of that debt; if the deceased leaves children under age, they shall have necessaries provided for them in keeping with the estate of the deceased, and the debt shall be paid out of the residue, saving the service due to the deceased's feudal lords. so shall it be done with regard to debts owed persons other than jews.} [ix. the liberties of london and other cities and towns confirmed] the city of london shall have all her old liberties and free customs, both by land and water. moreover, we will and grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs. {no scutage or aid shall be imposed in our realm unless by common counsel thereof, except to ransom our person, make our eldest son a knight, and once to marry our eldest daughter, and for these only a reasonable aid shall be levied. so shall it be with regard to aids from the city of london.} {to obtain the common counsel of the realm concerning the assessment of aids (other than in the three aforesaid cases) or of scutage, we will have the archbishops, bishops, abbots, earls, and great barons individually summoned by our letters; we will also have our sheriffs and bailiffs summon generally all those who hold lands directly of us, to meet on a fixed day, but with at least forty days' notice, and at a fixed place. in all such letters of summons, we will explain the reason therefor. after summons has thus been made, the business shall proceed on the day appointed, according to the advice of those who are present, even though not all the persons summoned have come.} {we will not in the future grant permission to any man to levy an aid upon his free men, except to ransom his person, make his eldest son a knight, and once to marry his eldest daughter, and on each of these occasions only a reasonable aid shall be levied.} [x. none shall distrain for more service than is due.] no man shall be compelled to perform more service for a knight's fee nor any freehold than is due therefrom. [xi. common pleas shall not follow the king's court] people who have common pleas shall not follow our court traveling about the realm, but shall be heard in some certain place. [xii. where and before whom assizes shall be taken. adjournment for difficulty] {land assizes of novel disseisin, mort d'ancestor and darrein presentment shall be heard only in the county where the property is situated, and in this manner: we or, if we are not in the realm, our chief justiciary, shall send two justiciaries through each county four times a year [to clear and prevent backlog], and they, together with four knights elected out of each county by the people thereof, shall hold the said assizes in the county court, on the day and in the place where that court meets.} assizes of novel disseisin, mort d'ancestor shall be heard only in the county where the property is situated, and in this manner: we, or if we are not in the realm, our chief justiciary, shall send justiciaries through each county once a year, and they together with knights of that county shall hold the said assizes in the county. {if the said assizes cannot be held on the day appointed, so many of the knights and freeholders as were present on that day shall remain as will be sufficient for the administration of justice, according to the amount of business to be done.} and those things that at the coming of our foresaid justiciaries, being sent to take those assizes in the counties, cannot be determined, shall be ended by them in some other place in their circuit; and those things which for difficulty of some articles cannot be determined by them, shall be referred to our justices of the bench and there shall be ended. [xiii. assizes of darrein presentment] assizes of darrein presentment shall always be taken before our justices of the bench and there shall be determined. [xiv. how men of all sorts shall be amerced and by whom] a freeman shall be amerced [made to pay a fine to the king] for a small offense only according to the degree thereof, and for a serious offense according to its magnitude, saving his position and livelihood; and in like manner a merchant, saving his trade and merchandise, and a villein saving his tillage, if they should fall under our mercy. none of these amercements shall be imposed except by the oath of honest men of the neighborhood. earls and barons shall be amerced only by their peers, and only in accordance with the seriousness of the offense. {no amercement shall be imposed upon a cleric's lay tenement, except in the manner of the other persons aforesaid, and without regard to the value of his ecclesiastical benefice.} no man of the church shall be amerced except in accordance with the seriousness of the offense and after his lay tenement, but not after the quantity of his spiritual benefice. [xv. making of bridges and banks] no town or freeman shall be compelled to build bridges over rivers or banks except those bound by old custom and law to do so. [xvi. defending of banks] no banks [land near a river] shall be defended [used by the king alone, e.g. for hunting], from henceforth, but such as were in defense in the time of king henry [ii] our grandfather, by the same places and in the same bounds as in his time. [xvii. holding pleas of the crown] no sheriff, constable, coroners, or other of our bailiffs shall hold pleas of our crown [but only justiciars, to prevent disparity of punishments and corruption]. {all counties, hundreds, wapentakes, and tithings (except our demesne manors) shall remain at the old rents, without any increase.} [xviii. the king's debtor dying, the king shall be first paid] if anyone holding a lay fee of us dies, and our sheriff or our bailiff show our letters patent [public letter from a sovereign or one in authority] of summons for a debt due to us from the deceased, it shall be lawful for such sheriff or bailiff to attach and list the goods and chattels of the deceased found in the lay fee to the value of that debt, by the sight and testimony of lawful men [to prevent taking too much], so that nothing thereof shall be removed therefrom until our whole debt is paid; then the residue shall be given up to the executors to carry out the will of the deceased. if there is no debt due from him to us, all his chattels shall remain the property of the deceased, saving to his wife and children their reasonable shares. {if any freeman dies intestate, his chattels shall be distributed by his nearest kinfolk and friends, under supervision of the church, saving to each creditor the debts owed him by the deceased.} [xix. purveyance for a castle] no constable or other of our bailiffs shall take grain or other chattels of any man without immediate payment, unless the seller voluntarily consents to postponement of payment. this applies if the man is not of the town where the castle is. but if the man is of the same town as where the castle is, the price shall be paid to him within 40 days. [xx. doing of castle-guard] no constable shall compel any knight to give money for keeping of his castle in lieu of castle-guard when the knight is willing to perform it in person or, if reasonable cause prevents him from performing it himself, by some other fit man. further, if we lead or send him into military service, he shall be excused from castle-guard for the time he remains in service by our command. [xxi. taking of horses, carts, and wood] no sheriff or bailiff of ours, or any other man, shall take horses or carts of any freeman for carriage without the owner's consent. he shall pay the old price, that is, for carriage with two horses, 10d. a day; for three horses, 14d. a day. no demesne cart of any spiritual person or knight or any lord shall be taken by our bailiffs. neither we nor our bailiffs will take another man's wood for our castles or for other of our necessaries without the owner's consent. [xxii. how long felons' lands shall be held by the king] we will hold the lands of persons convicted of felony for only a year and a day [to remove the chattels and movables], after which they shall be restored to the lords of the fees. [xxiii. in what place weirs shall be removed] all fishweirs [obstructing navigation] shall be entirely removed by the thames and medway rivers, and throughout england, except upon the seacoast. [xxiv. in what case a praecipe in capite is not grantable] the [royal] writ called "praecipe in capite" [for tenements held in chief of the crown] shall not in the future be granted to anyone respecting any freehold if thereby a freeman [who has a mesne lord] may not be tried in his lord's court. [xxv. there shall be but one measure throughout the realm] there shall be one measure of wine throughout our realm, one measure of ale, and one measure of grain, to wit, the london quarter, and one breadth of dyed cloth, russets, and haberjets, to wit, two {ells} yards within the selvages. as with measures so shall it also be with weights. [xxvi. inquisition of life and limb] henceforth nothing shall be given or taken for a writ of inquisition upon life or limb, but it shall be granted freely and not denied. [xxvii. tenure of the king in socage and of another by knight's service. petit serjeanty.] if anyone holds of us by fee farm, socage, or burgage, and also holds land of another by knight's service, we will not by reason of that fee farm, socage, or burgage have the wardship of his heir, or the land which belongs to another man's fee. nor will we have the custody of such fee farm, socage, or burgage unless such fee farm owe knight's service. we will not have the wardship of any man's heir, or the land which he holds of another by knight's service, by reason of any petty serjeanty which he holds of us by service of rendering us knives, arrows, or the like. [xxviii. wages of law shall not be without witness] in the future no [royal] bailiff shall upon his own unsupported accusation put any man to trial or oath without producing credible witnesses to the truth of the accusation. [xxix. none shall be condemned without trial. justice shall not be sold or delayed.] no freeman shall be taken, imprisoned, disseised of his freehold or liberties or free customs, or be outlawed, banished, or in any way ruined, nor will we prosecute or condemn him, except by the lawful judgment of his peers or by the law of the land. to no one will we sell [by bribery], to none will we deny or delay, right or justice. [xxx. merchant strangers coming into this realm shall be well used] all merchants shall have safe conduct to go and come out of and into england, and to stay in and travel through england by land and water, to buy and sell, without evil tolls, in accordance with old and just customs, except, in time of war, such merchants as are of a country at war with us. if any such be found in our realm at the outbreak of war, they shall be detained, without harm to their bodies or goods, until it be known to us or our chief justiciary how our merchants are being treated in the country at war with us. and if our merchants are safe there, then theirs shall be safe with us. {henceforth anyone, saving his allegiance due to us, may leave our realm and return safely and securely by land and water, except for a short period in time of war, for the common benefit of the realm.} [xxxi. tenure of a barony coming into the king's hands by escheat] if anyone dies holding of any escheat, such as the honor of wallingford, nottingham, boulogne, {lancaster,} or other escheats which are in our hands and are baronies, his heir shall not give any relief or do any service to us other than he would owe to the baron, if such barony had been in the baron's hands. and we will hold the escheat in the same manner in which the baron held it. nor shall we have, by occasion of any barony or escheat, any escheat or keeping of any of our men, unless he who held the barony or escheat elsewhere held of us in chief. persons dwelling outside the forest [in the county] need not in the future come before our justiciaries of the forest in answer to a general summons unless they are impleaded or are sureties for any person or persons attached for breach of forest laws. [xxxii. lands shall not be aliened to the prejudice of the lord's service] no freeman from henceforth shall give or sell any more of his land, but so that of the residue of the lands the lord of the fee may have the service due to him which belongs to the fee. {we will appoint as justiciaries, constables, sheriffs, or bailiffs only such men as know the law of the land and will keep it well.} [xxxiii. patrons of abbeys shall have the custody of them when vacant] all barons who had founded abbeys of which they have charters of english kings or old tenure, shall have the custody of the same when vacant, as is their due. all forests which have been created in our time shall forthwith be disafforested. {so shall it be done with regard to river banks which have been enclosed by fences in our time.} {all evil customs concerning forests and warrens [livestock grounds in forests], foresters and warreners, sheriffs and their officers, or riverbanks and their conservators shall be immediately investigated in each county by twelve sworn knights of such county, who are chosen by honest men of that county, and shall within forty days after this inquest be completely and irrevocably abolished, provided always that the matter has first been brought to our knowledge, or that of our justiciars, if we are not in england.} {we will immediately return all hostages and charters delivered to us by englishmen as security for the peace or for the performance of loyal service.} {we will entirely remove from their offices the kinsmen of gerald de athyes, so that henceforth they shall hold no office in england: engelard de cigogne, peter, guy, and andrew de chanceaux, guy de cigogne, geoffrey de martigny and his brothers, philip mark and his brothers, and geoffrey his nephew, and all their followers.} {as soon as peace is restored, we will banish from our realm all foreign knights, crossbowmen, sergeants, and mercenaries, who have come with horses and arms, to the hurt of the realm.} {if anyone has been disseised or deprived by us, without the legal judgment of his peers, of lands, castles, liberties, or rights, we will immediately restore the same, and if any disagreement arises on this, the matter shall be decided by judgment of the twentyfive barons mentioned below in the clause for securing the peace. with regard to all those things, however, of which any man was disseised or deprived, without the legal judgment of his peers, by king henry [ii] our father or our brother king richard, and which remain in our hands or are held by others under our warranty, we shall have respite during the term commonly allowed to the crusaders, excepting those cases in which a plea was begun or inquest made on our order before we took the cross; when, however, we return from our pilgrimage, or if perhaps we do not undertake it, we will at once do full justice in these matters.} {likewise, we shall have the same respite in rendering justice with respect to the disafforestation or retention of those forests which henry [ii] our father or richard our brother afforested, and concerning custodies of lands which are of the fee of another, which we hitherto have held by reason of the fee which some person has held of us by knight's service, and to abbeys founded on fees other than our own, in which the lord of that fee asserts his right. when we return from our pilgrimage, or if we do not undertake it, we will forthwith do full justice to the complainants in these matters.} [xxxiv. in what only case a woman shall have an appeal of death] no one shall be arrested or imprisoned upon a woman's appeal for the death of any person other than her husband [since no woman was expected to personally engage in trial by combat]. [xxxv. at what time shall be kept a county court, sheriff's turn and a leet court (court of criminal jurisdiction excepting felonies)] no county court from henceforth shall be held, but from month to month; and where greater time has been used, there shall be greater. nor shall any sheriff, or his bailiff, keep his turn in the hundred but twice in the year; and no where but in due place and accustomed time, that is, once after easter, and again after the feast of saint michael. and the view of frankpledge [the right of assembling the whole male population over 12 years except clergy, earls, barons, knights, and the infirm, at the leet or soke court for the capital frankpledges to give account of the peace kept by individuals in their respective tithings] shall be likewise at the feast of saint michael without occasion, so that every man may have his liberties which he had, or used to have, in the time of king henry [ii] our grandfather, or which he has since purchased. the view of frankpledge shall be so done, that our peace may be kept; and that the tything be wholly kept as it has been accustomed; and that the sheriff seek no occasions, and that he be content with so much as the sheriff was wont to have for his view-making in the time of king henry our grandfather. [xxxvi. no land shall be given in mortmain] it shall not be lawful from henceforth to any to give his land to any religious house, and to take the same land again to hold of the same house [thereby extinguishing the feudal rights of the temporal lord]. nor shall it be lawful to any house of religion to take the lands of any, and to lease the same to him of whom he received it. if any from henceforth give his lands to any religious house, and thereupon be convicted, the gift shall be utterly void, and the land shall accrue to the lord of the fee. {all fines unjustly and unlawfully given to us, and all amercements levied unjustly and against the law of the land, shall be entirely remitted or the matter decided by judgment of the twenty-five barons mentioned below in the clause for securing the peace, or the majority of them, together with the aforesaid stephen, archbishop of canterbury, if he himself can be present, and any others whom he may wish to bring with him for the purpose; if he cannot be present, the business shall nevertheless proceed without him. if any one or more of the said twenty-five barons has an interest in a suit of this kind, he or they shall step down for this particular judgment, and be replaced by another or others, elected and sworn by the rest of the said barons, for this occasion only.} {if we have disseised or deprived the welsh of lands, liberties, or other things, without legal judgment of their peers, in england or wales, they shall immediately be restored to them, and if a disagreement arises thereon, the question shall be determined in the marches by judgment of their peers according to the law of england as to english tenements, the law of wales as to welsh tenements, the law of the marches as to tenements in the marches. the same shall the welsh do to us and ours.} {but with regard to all those things of which any welshman was disseised or deprived, without legal judgment of his peers, by king henry [ii] our father or our brother king richard, and which we hold in our hands or others hold under our warranty, we shall have respite during the term commonly allowed to the crusaders, except as to those matters whereon a suit had arisen or an inquisition had been taken by our command prior to our taking the cross. immediately after our return from our pilgrimage, or if by chance we do not undertake it, we will do full justice according to the laws of the welsh and the aforesaid regions.} {we will immediately return the son of llywelyn, all the welsh hostages, and the charters which were delivered to us as security for the peace.} {with regard to the return of the sisters and hostages of alexander, king of the scots, and of his liberties and rights, we will do the same as we would with regard to our other barons of england, unless it appears by the charters which we hold of william his father, late king of the scots, that it ought to be otherwise; this shall be determined by judgment of his peers in our court.} [xxxvii. subsidy in respect of this charter, and the charter of the forest, granted to the king.] escuage [service of the shield, a tenure in knightsâ� service] from henceforth shall be taken as it was wont to be in the time of king henry [ii] our grandfather; reserving to all archbishops, bishops, abbots, priors, templers, hospitallers, earls, barons, and all persons as well spiritual as temporal; all their free liberties and free customs, which they have had in time passed. and all these customs and liberties aforesaid, which we have granted to be held within this our realm, as much as pertains to us and our heirs, we shall observe. {all the customs and liberties aforesaid, which we have granted to be enjoyed, as far as it pertains to us towards our people throughout our realm, let all our subjects, whether clerics or laymen, observe, as far as it pertains toward their dependents.} and all men of this our realm, as well spiritual as temporal (as much as in them is) shall observe the same against all persons in like wise. and for this our gift and grant of these liberties, and of other constrained in our charter of liberties of our forest, the archbishops, bishops, abbots, priors, earls, barons, knights, freeholders, and our other subjects, have given unto us the fifteenth part of all their movables. and we have granted unto them on the other part, that neither we, nor our heirs, shall procure or do any thing whereby the liberties in this charter contained shall be infringed or broken. and if any thing be procured by any person contrary to the premises, it shall be had of no force nor effect. [enforcement] {whereas we, for the honor of god and the reform of our realm, and in order the better to allay the discord arisen between us and our barons, have granted all these things aforesaid. we, willing that they be forever enjoyed wholly and in lasting strength, do give and grant to our subjects the following security, to wit, that the barons shall elect any twenty-five barons of the realm they wish, who shall, with their utmost power, keep, hold, and cause to be kept the peace and liberties which we have granted unto them and by this our present charter have confirmed, so that if we, our justiciary, bailiffs, or any of our ministers offends in any respect against any man, or transgresses any of these articles of peace or security, and the offense is brought before four of the said twenty-five barons, those four barons shall come before us, or our chief justiciary if we are out of the realm, declaring the offense, and shall demand speedy amends for the same. if we or, in case of our being out of the realm, our chief justiciary fails to afford redress within forty days from the time the case was brought before us or, in the event of our having been out of the realm, our chief justiciary, the aforesaid four barons shall refer the matter to the rest of the twenty-five barons, who, together with the commonalty of the whole country, shall distrain and distress us to the utmost of their power, to wit, by capture of our castles, lands, and possessions and by all other possible means, until compensation is made according to their decision, saving our person and that of our queen and children; as soon as redress has been had, they shall return to their former allegiance. anyone in the realm may take oath that, for the accomplishment of all the aforesaid matters, he will obey the orders of the said twenty-five barons and distress us to the utmost of his power; and we give public and free leave to everyone wishing to take oath to do so, and to none will we deny the same. moreover, all such of our subjects who do not of their own free will and accord agree to swear to the said twenty-five barons, to distrain and distress us together with them, we will compel to do so by our command in the aforesaid manner. if any one of the twenty-five barons dies or leaves the country or is in any way hindered from executing the said office, the rest of the said twenty-five barons shall choose another in his stead, at their discretion, who shall be sworn in like manner as the others. in all cases which are referred to the said twenty-five barons to execute, and in which a difference arises among them, supposing them all to be present, or in which not all who have been summoned are willing or able to appear, the verdict of the majority shall be considered as firm and binding as if the whole number had been of one mind. the aforesaid twenty-five shall swear to keep faithfully all the aforesaid articles and, to the best of their power, to cause them to be kept by others. we will not procure, either by ourself or any other, anything from any man whereby any of these concessions or liberties may be revoked or abated. if any such procurement is made, let it be null and void; it shall never be made use of either by us or by any other.} [amnesty] {we have also fully forgiven and pardoned all ill-will, wrath, and malice which has arisen between us and our subjects, both clergy and laymen, during the disputes, to and with all men. moreover, we have fully forgiven and, as far as it pertains to us, wholly pardoned to and with all, clergy and laymen, all offenses made in consequence of the said disputes from easter in the sixteenth year of our reign until the restoration of peace. over and above this, we have caused letters patent to be made for stephen, archbishop of canterbury, henry, archbishop of dublin, the above-mentioned bishops, and master pandulph, for the aforesaid security and concessions.} {wherefore we will that, and firmly command that, the english church shall be free and all men in our realm shall have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely, quietly, fully, and wholly, to them and their heirs, of us and our heirs, in all things and places forever, as is aforesaid. it is moreover sworn, as will on our part as on the part of the barons, that all these matters aforesaid shall be kept in good faith and without deceit. witness the above-named and many others. given by our hand in the meadow which is called runnymede, between windsor and staines, on the fifteenth day of june in the seventeenth year of our reign.} these being witnesses: lord s. archbishop of canterbury, e. bishop of london, f. bishop of bathe, g. of wincester, h. of lincoln, r. of salisbury, w. of rochester, x. of worcester, f. of ely, h. of hereford, r. of chichester, w. of exeter, bishops; the abbot of st. edmonds, the abbot of st. albans, the abbot of bello, the abbot of st. augustines in canterbury, the abbot of evesham, the abbot of westminster, the abbot of bourgh st. peter, the abbot of reding, the abbot of abindon, the abbot of malmbury, the abbot of winchcomb, the abbot of hyde, the abbot of certesey, the abbot of sherburn, the abbot of cerne, the abbot of abborebir, the abbot of middleton, the abbot of seleby, the abbot of cirencester, h. de burgh justice, h. earl of chester and lincoln, w. earl of salisbury, w. earl of warren, g. de clare earl of gloucester and hereford, w. de ferrars earl of derby, w. de mandeville earl of essex, h. de bygod earl of norfolk, w. earl of albemarle, h. earl of hereford, f. constable of chester, g. de tos, h. fitzwalter, r. de byponte, w. de bruer, r. de montefichet, p. fitzherbert, w. de aubenie, f. gresly, f. de breus, f. de monemue, f. fitzallen, h. de mortimer, w. de beuchamp, w. de st. john, p. de mauli, brian de lisle, thomas de multon, r. de argenteyn, g. de nevil, w. de mauduit, f. de balun, and others. given at westminster the 11th day of february the 9th year of our reign. we, ratifying and approving these gifts and grants aforesaid, confirm and make strong all the same for us and our heirs perpetually, and by the tenour of these presents, do renew the same; willing and granting for us and our heirs, that this charter, and all singular his articles, forever shall be steadfastly, firmly, and inviolably observed; and if any article in the same charter contained, yet hitherto peradventure has not been kept, we will, and by royal authority, command, from henceforth firmly they be observed. statutes which were enacted after the magna carta follow: nuisance is recognized by this statute: "every freeman, without danger, shall make in his own wood, or in his land, or in his water, which he has within our forest, mills, springs, pools, clay pits, dikes, or arable ground, so that it does not annoy any of his neighbors." anyone taking a widow's dower after her husband's death must not only return the dower, but pay damages in the amount of the value of the dower from the time of death of the husband until her recovery of seisin. widows may bequeath the crop of their ground as well of their dowers as of their other lands and tenements. freeholders of tenements on manors shall have sufficient ingress and egress from their tenements to the common pasture and as much pasture as suffices for their tenements. "grain shall not be taken under the pretense of borrowing or the promise of after-payment without the permission of the owner." "a parent or other who forcefully leads away and withholds, or marries off, an heir who is a minor (under 14), shall yield the value of the marriage and be imprisoned until he has satisfied the king for the trespass. if an heir 14 years or older marries without his lord's permission to defraud him of the marriage and the lord offers him reasonable and convenient marriage, without disparagement, then the lord shall hold his land beyond the term of his age, that, of twenty one years, so long that he may receive double the value of the marriage as estimated by lawful men, or after as it has been offered before without fraud or collusion, and after as it may be proved in the king's court. any lord who marries off a ward of his who is a minor and cannot consent to marriage, to a villain or other, such as a burgess, whereby the ward is disparaged, shall lose the wardship and all its profits if the ward's friends complain of the lord. the wardship and profit shall be converted to the use of the heir, for the shame done to him, after the disposition and provision of his friends." (the "marriage" could be annulled by the church.) "if an heir of whatever age will not marry at the request of his lord, he shall not be compelled thereunto; but when he comes of age, he shall pay to his lord the value of the marriage before receiving his land, whether or not he himself marries." "interest shall not run against any minor, from the time of death of his ancestor until his lawful age; so nevertheless, that the payment of the principal debt, with the interest that was before the death of his ancestor shall not remain." the value of debts to be repaid to the king or to any man shall be reasonably determined by the debtor's neighbors and not by strangers. a debtors' plough cattle or sheep cannot be taken to satisfy a debt. the wards and escheats of the king shall be surveyed yearly by three people assigned by the king. the sheriffs, by their counsel, shall approve and let to farm such wards and escheats as they think most profitable for the king. the sheriffs shall be answerable for the issues thereof in the exchequer at designated times. the collectors of the customs on wool exports shall pay this money at the two designated times and shall make yearly accounts of all parcels in ports and all ships. by statute leap year was standardized throughout the nation, "the day increasing in the leap year shall be accounted in that year", "but it shall be taken and reckoned in the same month wherein it grew and that day and the preceding day shall be counted as one day." "an english penny [1 d.], called a sterling, round and without any clipping, shall weigh 32 wheat grains dry in the middle of the ear." measurements of distance were standardized to twelve inches to a foot, three feet to a yard, and so forth up to an acre of land. goods which could only be sold by the standard weights and measures (such as ounces, pounds, gallons, bushels) included sacks of wool, leather, skins, ropes, glass, iron, lead, canvas, linen cloth, tallow, spices, confections cheese, herrings, sugar, pepper, cinnamon, nutmeg, wheat, barley, oats, bread, and ale. the prices required for bread and ale were based on the market price for the wheat, barley, and oats from which they were made. the punishment for repeated violations of required measures, weights, or prices of bread and ale by a baker or brewer; selling of spoiled or unwholesome wine, meat, fish by brewers, butchers, or cooks; or a steward or bailiff receiving a bribe was reduced to placement in a pillory with a shaven head so that these men would still be fit for military service and not overcrowd the gaols. forest penalties were changed so that "no man shall lose either life or member [limb] for killing of our deer. but if any man be taken and convicted for taking our venison, he shall make a grievous fine, if he has anything. and if he has nothing to lose, he shall be imprisoned for a year and a day. and after that, if he can find sufficient sureties, he shall be delivered, and, if not, he shall abjure the realm of england." the forest charter provided that: every freeman may allow his pigs to eat in his own wood in the king's forest. he may also drive his pigs through the king's forest and tarry one night within the forest without losing any of his pigs. but people having greyhounds must keep them out of the forest so they don't maim the deer. the forest charter also allowed magnates traveling through the king's forest on the king's command to come to him, to kill one or two deer as long as it was in view of the forester if he was present, or while having a horn blown, so it did not seem to be theft. after a period of civil war, the following statutes were enacted: "all persons, as well of high as of low estate, shall receive justice in the king's court; and none shall take any such revenge or distress by his own authority, without award of our court, although he is damaged or injured, whereby he would have amends of his neighbor either higher or lower." the penalty is a fine according to the trespass. a fraudulent conveyance to a minor or lease for a term of years made to defraud a lord of a wardship shall be void. a lord who maliciously and wrongfully alleges this to a court shall pay damages and costs. if a lord will not render unto an heir his land when he comes of age or takes possession away from an heir of age or removes anything from the land, he shall pay damages. (the king retained the right to take possession of an heir's land for a year or, in lieu of this, to take one year's profit from the land in addition to the relief.) kinsmen of a minor heir who have custody of his land held in socage shall make no waste, sale, nor destruction of the inheritance and shall answer to the heir when he comes of age for the issues of the land, except for the reasonable costs of these guardians. no lord may distrain any of his tenants. no one may drive animals taken by distraint out of the county where they have been taken. "farmers during their terms, shall not make waste, sale, nor exile of house, woods, and men, nor of any thing else belonging to the tenements which they have to farm". church law required that planned marriages be publicly announced by the priest so that any impediment could be made known. if a marriage was clandestine or both parties knew of an impediment, or it was within the prohibited degrees of consanguinity, the children would be illegitimate. according to church rules, a man could bequeath his personal property subject to certain family rights. these were that if only the wife survived, she received half the property. similarly, if children survived, but no wife, they received half the property. when the wife and children survived, each party received one third. the church hoped that the remaining fraction would go to the church as a reward for praying for the deceased's soul. it taught that dying without a will was sinful. adults were to confess their sins at least yearly to their parish priest, which confession would be confidential. henry de bracton, a royal justice and the last great ecclesiastical attorney, wrote an unfinished treatise: a tract on the laws and customs of england, systematizing and organizing the law of the court rolls with definitions and general concepts and describing court practice and procedure. it was influenced by his knowledge of roman legal concepts, such as res judicata, and by his own opinions, such as that the law should go from precedent to precedent. he also argued that the will and intent to injure was the essence of murder, so that neither an infant nor a madman should be held liable for such and that degrees of punishment should vary with the level of moral guilt in a killing. he thought the deodand to be unreasonable. bracton defines the requirements of a valid and effective gift as: "it must be complete and absolute, free and uncoerced, extorted neither by fear nor through force. let money or service play no part, lest it fall into the category of purchase and sale, for if money is involved there will then be a sale, and if service, the remuneration for it. if a gift is to be valid the donor must be of full age, for if a minor makes a gift it will be ineffective since (if he so wishes) it shall be returned to him in its entirety when he reaches full age. also let the donor hold in his own name and not another's, otherwise his gift may be revoked. and let him, at the least, be of sound mind and good memory, though an invalid, ill and on his death bed, for a gift make under such conditions will be good if all the other [requirements] of a valid gift are met. for no one, provided he is of good memory, ought to be kept from the administration or disposition of his own property when affected by infirmity, since it is only then that he must make provision for his family, his household and relations, given stipends and settle his bequests; otherwise such persons might suffer damage without fault. but since charters are sometimes fraudulently drawn and gifts falsely taken to be made when they are not, recourse must therefore be had to the country and the neighborhood so that the truth may be declared." in bracton's view, a villein could buy his own freedom and the child of a mixed marriage was free unless he was born in the tenement of his villein parent. judicial procedure the royal court split up into several courts with different specialties and became more like departments of state than offices of the king's household. the justices were career civil servants knowledgeable in the civil and canon law. the court of the king's bench (a marble slab in westminster upon which the throne was placed) traveled with the king and heard criminal cases and pleas of the crown. any use of force, however trivial, was interpreted as breach of the royal peace and could be brought before the king's bench. its records were the coram rege rolls. the title of the chief justiciar of england changed to the chief justice of england. the court of common pleas heard civil cases brought by one subject against another. pursuant to the magna carta, it sat only at one place, the great hall in westminster. it had concurrent jurisdiction with the king's bench over trespass cases. its records were the de banco rolls. the court of the exchequer with its subsidiary department of the treasury was in almost permanent session at westminster, collecting the crown's revenue and enforcing the crown's rights. appeals from these courts could be made to the king and/or his small council, which was the curia regis and could hear any plea of the land. in 1234, the justiciar as the principal royal executive officers and chief presiding officer over the curia regis ended. in 1268, a chief justiciar was appointed the hold pleas before the king. henceforth, a justiciar was a royal officer who dealt only with judicial work. about the same time the presiding justice of the court of common pleas also came to be styled justiciar or chief justice. justices were no longer statesmen or politicians, but simply men learned in the law. membership in or attendance at the great council or parliament no longer rested upon feudal tenure, but upon a writ of summons which was, to a degree, dependent on the royal will. crown pleas included issues of the king's property, fines due to him, murder (a body found with no witnesses to a killing), homicide (a killing for which there were witnesses), rape, wounding, mayhem, consorting, larceny, robbery, burglary, arson, poaching, unjust imprisonment, selling cloth by nonstandard widths, selling wine by nonstandard weights. crown causes were pled by the king's serjeants or servants at law, who were not clerics. apprentices at law learned pleading from them. between the proprietary action and the possessory assizes there is growing use in the king's courts of writs of entry, by which a tenant may be ordered to give up land, e.g. by a recent flaw in a tenant's title, for a term which has expired, by a widow for her late husband's land, or by an heir who has become of full age from his guardian. for instance: " ...command tertius that ... he render to claimant, who is of full age, as it is said, ten acres ...which he claims to be his right and inheritance and into which the said tertius has no entry save by secundus, to whom primus demised [gaged] them, who had only the wardship thereof while the aforesaid claimant was under age, as he says...". but most litigation about land is still through the writ of right for proprietary issues and the assizes of novel disseisin and mort d'ancestor for possessory issues. royal itinerant justices traveled to the counties every seven years. there, they gave interrogatories to local assizes of twelve men to determine what had happened there since the last eyre. all boroughs had to send twelve burgesses who were to indict any burgesses suspected of breaking the royal law. every crime, every invasion of royal rights, and every neglect of police duties was to be presented and tried. suspects were held in gaol until their cases could be heard and gaol breaks were common. punishment after trial was prison for serious crimes, expulsion from the realm for less serious crimes, and pledges for good behavior for lesser crimes. the visitation of these justices was anticipated with trepidation. in 1237, the residents of cornwall hid in the woods rather than face the itinerant justices. royal coroners held inquests on all sudden deaths to determine whether they were accidental or not. if not, royal justices held trial. they also had duties in treasure trove and shipwreck cases. justices of assize, justices of the peace, and itinerant justices operated at the county level. the traditional county courts had lost much jurisdiction to the royal courts and were now limited to personal actions in causes involving usually no more than 40s. there were pleas of trespass and debt, unjust seizure and detention of beasts, rent collection, claims of fugitive villeins and their goods, nuisances, and encroachments. the sheriff still constitutes and conducts the court. the county court met every three or four weeks, usually in the sheriff's castle located in the chief borough of the county, but some met in the open air. twice a year the sheriff visited each hundred in the county to hold a turn [court for small offenses, such as encroachment of public land, brewing and baking contrary to government regulations, and use of dishonest weights and measures.]. everyone who held freehold land in the hundred except the greater magnates had to attend or be fined for absence. the sheriff annually viewed frankpledge, in which every layman without land that could be forfeited for felony, including villeins, were checked for being in a tithing, a group of neighbors responsible for each other's good conduct. this applied to every boy who had reached the age of twelve. he had to swear on the bible "i will be a lawful man and bear loyalty to our lord the king and his heirs, and i will be justiciable to my chief tithing man, so help me god and the saints." each tithing man paid a penny to the sheriff. the hundred court decided cases of theft, viewing of boundaries of land, claims for tenurial services, claims for homage, relief, and for wardship; enfeoffments made, battery and brawls not amounting to felony, wounding and maiming of beasts, collection of debts, trespass, detinue [detention of personal property which originally was rightfully acquired] and covenant, which now requires a sealed writing; defamation, and inquiries and presentments arising from the assizes of bread and ale and measures. a paid bailiff had responsibility for the hundred court, which met every three weeks. still in existence is the old self-help law of hamsocne, the thief hand-habbende, the thief back-berend, the old summary procedure where the thief is caught in the act, aethelstan's laws, edward the confessor's laws, and kent's childwyte [fine for begetting a bastard on a lord's female bond slave]. under the name of "actio furti" [appeal of larceny] is the old process by which a thief can be pursued and goods vindicated. as before and for centuries later, deodands were forfeited to the king to appease god's wrath. these chattel which caused the death of a person were usually carts, cart teams, horses, boats, or millwheels. then they were forfeited to the community, which paid the king their worth. sometimes the justices named the charitable purpose for which the deodand was to be spent, such as the price of a boat to go to the repair of a bridge. five cases are: case: "john croc was drowned from his horse and cart in the water of bickney. judgment: misadventure. the price of the horse and cart is 4s.6d. deodand." case: "willam ruffus was crushed to death by a certain trunk. the price of the trunk is 4d., for which the sheriff is to answer. 4d. deodand." case: "william le hauck killed edric le poter and fled, so he is to be exacted and outlawed. he was in the tithing of reynold horloc in clandon of the abbot of chertsey (west clandon), so it is in mercy. his chattels were 4 s., for which the bailiff of the abbot of chertsey is to answer." case: "richard de bregsells, accused of larceny, comes and denies the whole and puts himself on the country for good or ill. the twelve jurors and four vills say that he is not guilty, so he is quit." case: william le wimpler and william vintner sold wine contrary to the statute, so they are in mercy. other cases dealt with issues of entry, e.g. whether land was conveyed or just rented; issues of whether a man was free, for which his lineage was examined; issues of to which lord a villein belonged; issues of nuisance such as making or destroying a bank, ditch, or hedge; diverting a watercourse or damming it to make a pool; obstructing a road, and issues of what grazing rights were conveyed in pasture land, waste, woods, or arable fields between harvest and sowing. grazing right disputes usually arose from the ambiguous language in the grant of land "with appurtenances". courts awarded specific relief as well as money damages. if a landlord broke his covenant to lease land for a term of years, the court restored possession to the lessee. if a lord did not perform the services due to his superior lord, the court ordered him to perform the services. the courts also ordered repair by a lessee. debts of country knights and freeholders were heard in the local courts; debts of merchants and burgesses were heard in the courts of the fairs and boroughs; debts due under wills and testaments were heard in the ecclesiastical courts. the ecclesiastical courts deemed marriage to legitimize bastard children whose parents married, so they inherited personal property and money of their parents. proof was by compurgation. church law required excommunication to be in writing with the reasons therefore, and a copy given to the excommunicant. a church judge was required to employ a notary or two men to write down all acts of the judge and to give a copy to the parties to protect against unjust judges. no cleric was allowed to pronounce or execute a sentence of death or to take part in judicial tests or ordeals. anyone knowingly accepting a stolen article was required to restore it to its owner. heretics were to be excommunicated. trial by combat is still available, although it is extremely rare for it to take place. the manor court imposed penalties on those who did not perform their services to the manor and the lord wrote down the customs of the manor for future use in other courts. by statute, no fines could be taken of any man for fair pleading in the circuit of justiciars, county, hundred, or manor courts. various statutes relaxed the requirements for attendance at court of those who were not involved in a case as long as there were enough to make the inquests fully. and "every freeman who owes suit to the county, tything, hundred, and wapentake, or to the court of his lord, may freely make his attorney attend for him." all above the rank of knight were exempted from attendance on the sheriff's turn, unless specifically summoned. prelates and barons were generally excepted from the county courts by the charters of their estates. charters of boroughs often excepted their representatives at the county court when there were no justices. some barons and knights paid the sheriff to be excused. the king often relieved the simple knights by special license. there was frequently a problem of not having enough knights to hold the assizes. henry iii excused the attendance at hundred courts of all but those who were bound to special service, or who were concerned in suits. trespass has become a writ of course in the common law. it still involves violence, but its element of breach of the peace extends to those breaches which do not amount to felony. it can include assault and battery, physical force to land, and physical force to chattels, e.g. assaulting and beating the plaintiff, breaking into his close, or carrying off his goods. one found guilty is fined and imprisoned. as in criminal matters, if a defendant does not appear at court, his body can be seized and imprisoned, and if he cannot be found, he may be outlawed. trespass to goods results in damages, rather than the return of the goods, for goods carried off from the plaintiff's possession and can be brought by bailees. in chancery, the court of the chancellor, if there is a case with no remedy specified in the law, that is similar to a situation for which there is a writ, then a new writ may be made for that case. (by this will later be expanded the action of trespass called "trespass on the case".) various cases from the manors of the abbey of bec in 1248-1249 are: 1. ragenilda of bec gives 2s. for having married without licence. pledge, william of pinner. the same ragenilda demands against roger loft and juliana his wife a certain messuage which belonged to robert le beck, and a jury of twelve lawful men is granted her in consideration of the said fine, and if she recovers seisin she will give in all 5s. and twelve jurors are elected, to wit, john of hulle, william maureward, robert hale walter but, walter sigar, william brihtwin, richard horseman, richard leofred, william john's son, hugh cross, richard pontfret and robert croyser, john bisuthe and gilbert bisuthe who are sworn. and they say that the said ragenilda has the greater right. therefore let her have seisin. 2. richard guest gives 12d. and if he recovers will give 2s. to have a jury of twelve lawful men as to whether he has the greater right in a certain headland at eastcot which ragenilda widow of william andrews holds, or the said ragenilda. pledges for the fine, john brook and richard of pinner. and the said ragenilda comes and says that she has no power to bring that land into judgment because she has no right in it save by reason of the wardship of the son and heir of her husband, who is under age. and richard is not able to deny this. therefore let him await [the heir's] full age. 3. walter hulle gives 13s.4d. for licence to dwell on the land of the prior of harmondsworth so long as he shall live and as a condition finds pledges, to wit, william slipper, john bisuthe, gilbert bisuthe, hugh tree, william john's son, john hulle, who undertake that the said walter shall do to the lord all the services and customs which he would do if he dwelt on the lord's land and that his heriot shall be secured to the lord in case he dies there [i.e. at harmondsworth]. 4. geoffrey sweyn demands the moiety of one virgate of land which john crisp and alina hele hold, and he gives 2s. to have a jury, and if he recovers will give 20s. and the said jurors come and say upon their oath that the said geoffrey has no right in the said land. therefore let the said tenants go thence without day and let the said geoffrey pay 2s. pledges, hugh bussel and godfrey francis. 5. juliana saer's daughter demands as her right the moiety of one messuage with a croft, which messuage william snell and goda his wife, sister of the said juliana hold. and they have made accord by leave [of the court] to the effect that the said william and goda give to the said juliana a barn and the curtilage nearest the green and two selions [a ridge of land between two furrows] in the western part of the said croft [a small enclosed field]. and the said william put himself in mercy. fine, 12d. 6. hugh of stanbridge complains of gilbert vicar's son and william of stanbridge that the wife of the said gilbert who is of [gilbert's] mainpast and the said william unjustly etc. beat and unlawfully struck him and dragged him by his hair out of his own proper house, to his damage 40s. and to his dishonor 20s., and [of this] he produces suit. and gilbert and william come and defend all of it fully. therefore let each of them go to his law six-handed. afterwards they make accord to this effect that in case the said hugh shall hereafter in any manner offend against [gilbert and william] and thereof shall be convicted he will give the lord 6s.8d. by way of penalty and will make amends to [gilbert and william] according to the judgment of six lawful men, and the others on their part will do the like by him. and hugh put himself in mercy. fine, 3s. pledges, john tailor and walter brother. 7. breakers of the assize [of beer:] william idle (fined 6d.), maud carter's widow (6d.), walter carter. 8. john witriche in mercy for carrying off thorns. fine, 6d. 9. robert dochi in mercy (fine, 2d.) for divers trespasses. pledges, gilbert priest's son, ralph winbold and walter green. 10. ailwin crisp in mercy for his cow caught in the lord's pasture when ward had been made. fine, 12d. 11. john bernard in mercy for his beasts caught by night in the lord's meadow. fine, 2s. 12. richard love gives 12d. to have a jury of twelve touching a rod of land which robert of brockhole and juliana his wife hold. this action is respited to the next court [when the jurors are to come] without further delay. afterwards the jurors come and say upon their oath that the said richard has the greater right in the said land. therefore let him have seisin. 13. william blackbeard in mercy for not coming with his law as he was bound to do. pledges, geoffrey of wick and geoffrey payn. fine, 6d. 14. it was presented that stephen shepherd by night struck his sister with a knife and grievously wounded her. therefore let him be committed to prison. afterwards he made fine with 2s. pledge, geoffrey of wick. 15. it was presented that robert carter's son by night invaded the house of peter burgess and in felony threw stones at his door so that the said peter raised the hue.therefore let the said robert be committed to prison. afterwards he made fine with 2s. 16. nicholas drye, henry le notte (fine, 12d.) and thomas hogue (fine, 12d.) were convicted for that they by night invaded the house of sir thomas the chaplain and forcibly expelled thence a man and woman who had been taken in there as guests. therefore they are in mercy. pledges of the said thomas, richard of lortemere and jordan of paris. pledges of the said henry, richard pen...and richard butry. 17. adam moses gives half a sextary of wine to have an inquest as to whether henry ayulf accused him of the crime of larceny and used opprobrious and contumelious words of him. afterwards they made accord and henry finds security for an amercement. fine, 12d. 18. isabella sywards in mercy for having sold to richard bodenham land that she could not warrant him. 19. all the ploughmen of great ogbourne are convicted by the oath of twelve men....because by reason of their default [the land] of the lord was ill ploughed whereby the lord is damaged to the amount of 9s.... and walter reaper is in mercy for concealing [i.e. not giving information as to] the said bad ploughing. afterwards he made fine with the lord with 1 mark. 20. from ralph joce 6s.8d. for his son, because he [the son] unlawfully carried off grain from the lord's court. pledge,geoffrey joce. 21. from henry pink 12d. for a trespass by waylaying. 22. from eve corner 6d. for a trespass of her pigs. 23. from ralph scales 6d. for timber carried off. 24. from william cooper 12d. for ploughing his own land with the lord's plough without licence. 25. from hugh newman 12d. for trespass in the wood. 26. from richard penant 12d. for the same. 27. from helen widow of little ogbourne 6d. for the same. 28. from nicholas siward 6d. for a false complaint against william pafey. 29. from william pafey 12d. for fighting with the said nicholas. 30. from the widow of ralph shepherd 6d. for a trespass in pencombe. 31. richard blund gives a half-mark and if he recovers will give two marks and a half to have a jury of the whole court, to inquire whether he has the greater right in a virgate of land which hugh frith holds in wardship with cristiana daughter of simon white, or the said cristiana. pledges for the fine, richard dene, william hulle, john of senholt, hugh smith, and william ketelburn. and the whole court say upon their oath that the said richard has greater right in the said land than anyone else. therefore let him recover his seisin. 32 ....miller gives 2d. [the latin translates as 4s.] for a trespass against the assize of beer and because the lord's grain has been ill kept at the mill. pledges, john orped and joce serjeant. 33. noah gives 2s. in the same way for an inquest as to one acre. afterwards they submit themselves to arbitrators, who adjudge that the said robert shall pay 3s. to the said roger and 6s. to the said gilbert and 7s. to the said noah, and that he will do so [robert] finds pledges. 34. ralph bar in mercy for having beaten one of the lord's men. pledges, herbert rede and ralph brunild. 35. for the common fine of the township, a half-mark. 36. john boneffiant found pledges, to wit, william smith and william of bledlow, that he will not eloign himself from the lord's land and that he will be prompt to obey the lord's summons. chapter 8 the times: 1272-1348 king edward i was respected by the people for his good government, practical wisdom, and genuine concern for justice for everyone. he loved his people and wanted them to love him. he came to the throne with twenty years experience governing lesser lands on the continent which were given to him by his father henry iii. he spoke latin, english, and french. he gained a reputation as a lawgiver and as a peacemaker in disputes on the continent. his reputation was so high and agreement on him as the next king so strong that england was peaceful in the almost two years that it took him to arrive there from continental business. he was truthful, law-abiding, and kept his word. he had close and solid family relationships, especially with his father and with his wife eleanor, to whom he was faithful. he was loyal to his close circle of good friends. he valued honor and adhered reasonably well to the terms of the treaties he made. he was generous in carrying out the royal custom of subsidizing the feeding of paupers. he visited the sick. he was frugal and dressed in plain, ordinary clothes rather than extravagant or ostentatious ones. he disliked ceremony and display. at his accession, there was a firm foundation of a national law administered by a centralized judicial system, a centralized executive, and an organized system of local government in close touch with both the judicial and the executive system. to gain knowledge of his nation, he sent royal commissioners into every county to ask about any encroachments on the king's rights and about misdeeds by any of the king's officials: sheriffs, bailiffs, or coroners. the results were compiled as the "hundred rolls". they were the basis of reforms which improved justice at the local as well as the national level. they also rationalized the array of jurisdictions that had grown up with feudal government. statutes were passed by a parliament of two houses, that of peers (lords) and that of an elected [rather than appointed] commons, and the final form of the constitution was fixed. wardships of children and widows were sought because they were very profitable. a guardian could get one tenth of the income of the property during the wardship and a substantial marriage amount when the ward married. parents often made contracts to marry for their young children. this avoided a forced marriage by a ward should the parents die. most earldoms and many baronages came into the royal house by escheat or marriage. the royal house employed many people. the barons developed a class consciousness of aristocracy and became leaders of society. many men, no matter of whom they held land, sought knighthood. the king granted knighthood by placing his sword on the head of able-bodied and moral candidates who swore an oath of loyalty to the king and to defend "all ladies, gentlewomen, widows and orphans" and to "shun no adventure of your person in any war wherein you should happen to be". a code of knightly chivalry became recognized, such as telling the truth and setting wrongs right. about half of the knights were literate. in 1278, the king issued a writ ordering all freeholders who held land of the value of at least 400s. to receive knighthood at the king's hands. at the royal house and other great houses gentlemanly jousting competitions, with well-refined and specific rules, took the place of violent tournaments with general rules. edward forbade tournaments at which there was danger of a "melee". at these knights competed for the affection of ladies by jousting with each other while the ladies watched. courtly romances were common. if a man convinced a lady to marry him, the marriage ceremony took place in church, with feasting and dancing afterwards. romantic stories were at the height of their popularity. a usual theme was the lonely quest of a knight engaged in adventures which would impress his lady. riddles include: 1. i will make you a cross, and a thing will not touch you, and you will not be able to leave the house without breaking that cross. answer: stand before a post in your house, with your arms extended. 2. what you do not know, and i do not know, and no one can know after i have told you. answer: i will take a straw from the floor of the room, measure its inches, tell you the length, and break the straw. 3. a pear tree bears all the fruit a pear tree can bear and did not bear pears. answer: it bore only one pear. the dress of the higher classes was very changeable and subject to fashion as well as function. ladies no longer braided their hair in long tails, but rolled it up in a net under a veil, often topped with an elaborate and fanciful headdress. they wore nonfunctional long trains on their tunics and dainty shoes. men wore a long gown, sometimes clasped around the waist. overtunics were often lined or trimmed with native fur such as squirrel. people often wore solid red, blue, or green clothes. only monks and friars wore brown. the introduction of buttons and buttonholes to replace pins and laces made clothing warmer, and it could be made tighter. after edward i established the standard inch as three continuous dried barleycorns, shoes came in standard sizes and with a right one different from a left one. the spinning wheel came into existence to replace the handheld spindle. now one hand could be used to form the thread while the other hand turned a large upright wheel that caused the thread to wind around the spindle, which did not have to be held by hand. this resulted in an uninterrupted spinning motion which was not interrupted by alternately forming the thread and winding it on the spindle. in the 1300s, there were extremes of fashion in men's and women's clothing including tight garments, pendant sleeves down to the ground, coats so short they didn't reach the hips or so long they reached the heels, hoods so small they couldn't cover the head, and shoes with long curved peaks like claws at the toes. both men and women wore belts low on the hips. the skirt of a lady's tunic was fuller and the bodice more closely fitted than before. her hair was usually elaborately done up, e.g. with long curls or curled braids on either side of the face. a jeweled circlet was often worn around her head. ladies wore on their arms or belts, cloth handbags, which usually contained toiletries, such as combs made of ivory, horn, bone, or wood, and perhaps a little book of devotions. a man wore a knife and a bag on his belt. some women painted their faces and/or colored their hair. there were handheld glass mirrors. some people kept dogs purely as pets. there was a great development of heraldic splendor with for instance, crests, coat-armor, badges, pennons [long, triangular flag], and helmets. they descended through families. not only was it a mark of service to wear the badge of a lord, but lords wore each other's badges by way of compliment. lords surrounded themselves with people of the next lower rank, usually from nearby families, and had large households. for instance, the king had a circle of noblemen and ladies about him. a peer or great prelate had a household of about 100-200 people, among which were his inner circle, companions, administrators, secretaries, bodyguards and armed escort, chaplain, singing priests and choirboys, and servants. all officers of the household were gentlemen. the secretary was usually a clerk, who was literate because he had taken minor clerical orders. since the feudal obligation of the tenants was disappearing, a lord sometimes hired retainers to supplement his escort of fighting men. they proudly wore his livery of cloth or hat, which was in the nature of a uniform or badge of service. a nobleman and his lady had a circle of knights and gentlemen and their ladies. a knight had a circle of gentlemen and their ladies. the great barons lived in houses built within the walls of their castles. lesser barons lived in semi-fortified manors, many of which had been licensed to be embattled or crenelated. their halls were two stories high, and usually built on the first rather than on the second floor. windows came down almost to the floor. the hall had a raised floor at one end where the lord and lady and a few others sat at a high table. the hearth was in the middle of the room or on a wall. sometimes a cat was used to open and shut the louvers of the smoke outlet in the roof. the lord's bedroom was next to the hall on the second floor and could have windows into the hall and a spiral staircase connecting the two rooms. there was a chapel, in which the lord attended mass every morning. the many knights usually lived in unfortified houses with two rooms. in the great houses, there were more wall hangings, and ornaments for the tables. the tables were lit with candles or torches made of wax. plates were gold and silver. the lord, his lady, and their family and guests sat at the head table, which was raised on a dais. on this high table was a large and elaborate salt cellar. one's place in relationship to the salt cellar indicated one's status: above or below the salt. also, those of higher status at the table ate a superior bread. the almoner [alms giver] said grace. gentlemen poured the lord's drink [cupbearer], served his meat [carver], and supervised the serving of the food [sewer]. a yeoman ewery washed the hands of the lord and his guests and supplied the napkins, ewers [pitchers], and basins. a yeoman cellarer or butler served the wine and beer. the yeoman of the pantry served the bread, salt, and cutlery. the steward presided over the table of household officers of gentle birth. the marshall of the hall, clerk of the kitchen, or other yeomen officers supervised other tables. salt and spices were available at all tables. most people ate with their fingers, although there were knives and some spoons. drinking vessels were usually metal, horn, or wood. a marshall and ushers kept order. minstrels played musical instruments or recited histories of noble deeds or amusing anecdotes. reading aloud was a favorite pastime. the almoner collected the leftovers to distribute to the poor. in lesser houses people ate off trenchers [a four day old slab of coarse bread or a piece of wood with the middle scooped out like a bowl], or plates of wood or pewter [made from tin, copper, and lead]. they often shared plates and drinking vessels at the table. queen eleanor, a cultivated, intelligent, and educated lady from the continent, fostered culture and rewarded individual literary efforts, such as translations from latin, with grants of her own money. she patronized oxford and cambridge universities and left bequests to poor scholars there. she herself had read aristotle and commentaries thereon, and she especially patronized literature which would give cross-cultural perspectives on subjects. she was kind and thoughtful towards those about her and was also sympathetic to the afflicted and generous to the poor. she shared edward's career to a remarkable extent, even accompanying him on a crusade. she had an intimate knowledge of the people in edward's official circle and relied on the advice of two of them in managing her lands. she mediated disputes between earls and other nobility, as well as softened her husband's temper towards people. edward granted her many wardships and marriages and she arranged marriages with political advantages. she dealt with envoys coming to the court. her intellectual vitality and organized mentality allowed her to deal with arising situations well. edward held her in great esteem. she introduced to england the merino sheep, which, when bred with the english sheep, gave them a better quality of wool. she and edward often played games of chess and backgammon. farm efficiency was increased by the use of windmills in the fields to pump water and by allowing villeins their freedom and hiring them as laborers only when needed. customary service was virtually extinct. a man could earn 5d. for reaping, binding, and shocking into a pile, an acre of wheat. a strong man with a wife to do the binding could do this in a long harvest day. harvests were usually plentiful, with the exception of two periods of famine over the country due to weather conditions. then the price of wheat went way up and drove up the prices of all other goods correspondingly. the story of outlaw robin hood, who made a living by robbing, was passed around. this robin hood did not give to the poor. but generally, there was enough grain to store so that the population was no longer periodically devastated by famine. the population grew and all arable land in the nation came under the plough. the acre was standardized. about 1300, the price of an ox was 9s., a heifer or cow 7s., a hide 2s.6d., a cart horse 2 or 3 pounds. farm women went to nearby towns to sell eggs and dairy products, usually to town women. although manors needed the ploughmen, the carters and drivers, the herdsmen, and the dairymaid on a full-time basis, other tenants spent increasing time in crafts and became village carpenters, smiths, weavers or millers' assistants. trade and the towns grew. smiths used coal in their furnaces. money rents often replaced service due to a lord, such as fish silver, malt silver, or barley silver. the lord's rights are being limited to the rights declared on the extents [records showing service due from each tenant] and the rolls of the manor. sometimes land is granted to strangers because none of the kindred of the deceased will take it. often a manor court limited a fee in land to certain issue instead of being inheritable by all heirs. surveyors' poles marked boundaries declared by court in boundary disputes. this resulted in survey maps showing villages and cow pastures. the revival of trade and the appearance of a money economy was undermining the long-established relationship between the lord of the manor and his villeins. as a result, money payments were supplementing or replacing payments in service and produce as in martham, where thomas knight held twelve acres in villeinage, paid 16d. for it and 14d. in special aids. "he shall do sixteen working days in august and for every day he shall have one repast viz. bread and fish. he shall hoe ten days without the lord's food price of a day 1/2 d. he shall cart to norwich six cartings or shall give 9d., and he shall have for every carting one leaf and one lagena or gallon of ale. also for ditching 1d. he shall make malt 3 1/2 seams of barley or shall give 6d. also he shall flail for twelve days or give 12d. he shall plough if he has his own plough, and for every ploughing he shall have three loaves and nine herrings ... for carting manure he shall give 2." another example is this manor's holdings, when 3d. would buy food for a day: "extent of the manor of bernehorne, made on wednesday following the feast of st. gregory the pope, in the thirty-fifth year of the reign of king edward, in the presence of brother thomas, keeper of marley, john de la more, and adam de thruhlegh, clerks, on the oath of william de gocecoumbe, walter le parker, richard le knyst, richard the son of the latter, andrew of estone, stephen morsprich, thomas brembel, william of swynham, john pollard, roger le glide, john syward, and john de lillingewist, who say that there are all the following holdings:... john pollard holds a half acre in aldithewisse and owes 18d. at the four terms, and owes for it relief and heriot. john suthinton holds a house and 40 acres of land and owes 3s.6d. at easter and michaelmas. william of swynham holds one acre of meadow in the thicket of swynham and owes 1d. at the feast of michaelmas. ralph of leybourne holds a cottage and one acre of land in pinden and owes 3s. at easter and michaelmas, and attendance at the court in the manor every three weeks, also relief and heriot. richard knyst of swynham holds two acres and a half of land and owes yearly 4s. william of knelle holds two acres of land in aldithewisse and owes yearly 4s. roger le glede holds a cottage and three roods of land and owes 2s.6d. easter and michaelmas. alexander hamound holds a little piece of land near aldewisse and owes one goose of the value of 2d. the sum of the whole rent of the free tenants, with the value of the goose, is 18s.9d. they say, moreover, that john of cayworth holds a house and 30 acres of land, and owes yearly 2s. at easter and michaelmas; and he owes a cock and two hens at christmas of the value of 4d. and he ought to harrow for two days at the lenten sowing with one man and his own horse and his own harrow, the value of the work being 4d.; and he is to receive from the lord on each day three meals, of the value of 5d., and then the lord will be at a loss of 1d. thus his harrowing is of no value to the service of the lord. and he ought to carry the manure of the lord for two days with one cart, with his own two oxen, the value of the work being 8d.; and he is to receive from the lord each day three meals at the value as above. and thus the service is worth 3d. clear. and he shall find one man for two days, for mowing the meadow of the lord, who can mow, by estimation, one acre and a half, the value of the mowing of an acre being 6d.: the sum is therefore 9d. and he is to receive each day three meals of the value given above. and thus that mowing is worth 4d. clear. and he ought to gather and carry that same hay which he has cut, the price of the work being 3d. and he shall have from the lord two meals for one man, of the value of 1 1/2 d. thus the work will be worth 1 1/2 d. clear. and he ought to carry the hay of the lord for one day with a cart and three animals of his own, the price of the work being 6d. and he shall have from the lord three meals of the value of 2 1/2 d. and thus the work is worth 3 1/2 d. clear. and he ought to carry in autumn beans or oats for two days with a cart and three animals of his own, the value of the work being 12d. and he shall receive from the lord each day three meals of the value given above. and thus the work is worth 7d. clear. and he ought to carry wood from the woods of the lord as far as the manor, for two days in summer, with a cart and three animals of his own, the value of the work being 9d. and he shall receive from the lord each day three meals of the price given above. and thus the work is worth 4d. clear. and he ought to find one man for two days to cut heath, the value of the work being 4d., and he shall have three meals each day of the value given above: and thus the lord will lose, if he receives the service, 3d. thus that mowing is worth nothing to the service of the lord. and he ought to carry the heath which he has cut, the value of the work being 5d. and he shall receive from the lord three meals at the price of 2 1/2 d. and thus the work will be worth 2 1/2 d. clear. and he ought to carry to battle, twice in the summer season, each time half a load of grain, the value of the service being 4d. and he shall receive in the manor each time one meal of the value of 2d. and thus the work is worth 2d. clear. the totals of the rents, with the value of the hens, is 2s.4d. the total of the value of the works is 2s.3 1/2 d., being owed from the said john yearly. william of cayworth holds a house and 30 acres of land and owes at easter and michaelmas 2s. rent. and he shall do all customs just as the aforesaid john of cayworth. william atte grene holds a house and 30 acres of land and owes in all things the same as the said john. alan atte felde holds a house and 16 acres of land (for which the sergeant pays to the court of bixley 2s.), and he owes at easter and michaelmas 4s., attendance at the manor court, relief, and heriot. john lyllingwyst holds a house and four acres of land and owes at the two terms 2s., attendance at the manor court, relief, and heriot. the same john holds one acre of land in the fields of hoo and owes at the two periods 2s., attendance, relief, and heriot. reginald atte denne holds a house and 18 acres of land and owes at the said periods 18d., attendance, relief, and heriot. robert of northehou holds three acres of land at saltcote and owes at the said periods attendance, relief, and heriot. total of the rents of the villeins, with the value of the hens, 20s. total of all the works of these villeins, 6s.10 1/2 d. and it is to be noted that none of the above-mentioned villeins can give their daughters in marriage, nor cause their sons to be tonsured, nor can they cut down timber growing on the lands they hold, without licence of the bailiff or sergeant of the lord, and then for building purposes and not otherwise. and after the death of any one of the aforesaid villeins, the lord shall have as a heriot his best animal, if he had any; if, however, he have no living beast, the lord shall have no heriot, as they say. the sons or daughters of the aforesaid villeins shall give, for entrance into the holding after the death of their predecessors, as much as they give of rent per year. sylvester, the priest, holds one acre of meadow adjacent to his house and owes yearly 3s. total of the rent of tenants for life, 3s. petronilla atte holme holds a cottage and a piece of land and owes at easter and michaelmas ; also, attendance, relief, and heriot. walter herying holds a cottage and a piece of land and owes at easter and michaelmas 18d., attendance, relief, and heriot. isabella mariner holds a cottage and owes at the feast of st. michael 12d., attendance, relief, and heriot. jordan atte melle holds a cottage and 1 1/2 acres of land and owes at easter and michaelmas 2s., attendance, relief, and heriot. william of batelesmere holds one acre of land with a cottage and owes at the feast of st. michael 3d., and one cock and one hen at christmas of the value of 3d., attendance, relief, and heriot. john le man holds half an acre of land with a cottage and owes at the feast of st. michael 2s., attendance, relief, and heriot. hohn werthe holds one rood of land with a cottage and owes at the said term 18d., attendance, relief, and heriot. geoffrey caumbreis holds half an acre and a cottage and owes at the said term 18d., attendance, relief, and heriot. william hassok holds one rood of land and a cottage and owes at the said term 18d., attendance, relief, and heriot. the same man holds 3 1/2 acres of land and owes yearly at the feast of st. michael 3s. for all. roger doget holds half an acre of land and a cottage, which were those of r. the miller, and owes at the feast of st. michael 18d., attendance, relief, and heriot. thomas le brod holds one acre and a cottage and owes at the said term 3s., attendance, relief, and heriot. agnes of cayworth holds half an acre and a cottage and owes at the said term 18d., attendance, relief, and heriot. total of the rents of the said cottagers, with the value of the hens, 34s.6d. and it is to be noted that all the said cottagers shall do as regards giving their daughters in marriage, having their sons tonsured, cutting down timber, paying heriot, and giving fines for entrance, just as john of cayworth and the rest of the villeins above mentioned." the above fines and penalties, with heriots and reliefs, are worth 5s. yearly. often one village was divided up among two or more manors, so different manorial customs made living conditions different among the villagers. villages usually had carpenters, smiths, saddlers, thatchers, carters, fullers, dyers, soapmakers, tanners, needlers, and brassworkers. each villein had his own garden in which to grow fruit and vegetables next to his house, a pig (which fattened more quickly than other animals), strips in the common field, and sometimes an assart [a few acres of his own to cultivate as he pleased on originally rough uncultivated waste land beyond the common fields and the enclosed common pastures and meadows]. most villeins did not venture beyond their village except for about ten miles to a local shrine or great fair a couple times a year. at the fair might be fish, honey, spices, salt, garlic, oil, furs, silks, canvas, soap, pans, pots, grindstones, coal, nails, tar, iron, shovels, brushes, pails, horses, and packsaddles. early apothecaries might sell potions there. men and women looking for other employment might attend to indicate their availability. under edward i, villages were required to mount watches to protect life and property and were called upon to provide one man for the army and to pay his wages. people told time by counting the number of rings of the church bell, which rang on the hour. every sunday, the villagers went to church, which was typically the most elaborate and centrally located building in the village. the parishioners elected churchwardens, who might be women. this religion brought comfort and hope of going to heaven after judgment by god at death if sin was avoided. on festival days, bible stories, legends, and lives of saints were read or performed as miracle dramas. they learned to avoid the devil, who was influential in lonely places like forests and high mountains. at death, the corpse was washed, shrouded, and put into a rectangular coffin with a cross on its lid. priests sang prayers amid burning incense for the deliverance of the soul to god while interring the coffin into the ground. men who did not make a will risked the danger of an intestate and unconfessed death. the personal property of a man dying intestate now went to the church as a trust for the dead man's imperiled soul instead of to the man's lord. unqualified persons entered holy orders thereby obtaining "benefit of clergy", and then returned to secular employments retaining this protection. a villein could be forever set free from servitude by his lord as in this example: "to all the faithful of christ to whom the present writing shall come, richard, by the divine permission, abbot of peterborough and of the convent of the same place, eternal greeting in the lord: let all know that we have manumitted and liberated from all yoke of servitude william, the son of richard of wythington, whom previously we have held as our born bondman, with his whole progeny and all his chattels, so that neither we nor our successors shall be able to require or exact any right or claim in the said william, his progeny, or his chattels. but the same william, with his whole progeny and all his chattels, shall remain free and quit and without disturbance, exaction, or any claim on the part of us or our successors by reason of any servitude forever. we will, moreover, and concede that he and his heirs shall hold the messuages, land, rents, and meadows in wythington which his ancestors held from us and our predecessors, by giving and performing the fine which is called merchet for giving his daughter in marriage, and tallage from year to year according to our will, that he shall have and hold these for the future from us and our successors freely, quietly, peacefully, and hereditarily, by paying to us and our successors yearly 40s. sterling, at the four terms of the year, namely: at st. john the baptist's day 10s., at michaelmas 10s., at christmas 10s., and at easter 10s., for all service, exaction, custom, and secular demand; saving to us, nevertheless, attendance at our court of castre every three weeks, wardship, and relief, and outside service of our lord the king, when they shall happen. and if it shall happen that the said william or his heirs shall die at any time without an heir, the said messuage, land rents, and meadows with their appurtenances shall return fully and completely to us and our successors. nor will it be allowed to the said william or his heirs to give, sell, alienate, mortgage, or encumber in any way, the said messuage, land, rents, and meadows, or any part of them, by which the said messuage, land, rents, and meadows should not return to us and our successors in the form declared above. and if this should occur later, their deed shall be declared null, and what is thus alienated shall come to us and our successors... given at borough, for the love of lord robert of good memory, once abbot, our predecessor and maternal uncle of the said william, and at the instance of the good man, brother hugh of mutton, relative of the said abbot robert, a.d. 1278, on the eve of pentecost." villeins who were released from the manorial organization by commutation of their service for a money payment took the name of their craft as part of their name, such as, for the manufacture of textiles, weaver, draper, comber, fuller, napper, cissor, tailor, textor; for metalwork, faber, ironmonger; for leatherwork, tanner; for woodwork, building and carpentry, carpenter, cooper, mason, pictor; for food production, baker, pistor. iron, tin, lead, salt, and even coal were providing increasing numbers of people with a livelihood. many new boroughs were founded as grants of market rights by the king grew in number. these grants implied the advantage of the king's protection. in fact, one flooded town was replaced with a new town planned with square blocks. it was the charter which distinguished the borough community from the other communities existing in the country. it invested each borough with a distinct character. the privileges which the charter conferred were different in different places. it might give trading privileges: freedom from toll, a guild merchant, a right to hold a fair. it might give jurisdictional privileges: a right to hold court with greater or less franchises. it might give governmental privileges: freedom from the burden of attending the hundred and county courts, the return of writs, which meant the right to exclude the royal officials, the right to take the profits of the borough, paying for them a fixed sum to the crown or other lord of the borough, the right to elect their own officials rather than them being appointed by the king or a lord, and the right to provide for the government of the borough. it might give tenurial privileges: the power to make a will of lands, or freedom from the right of a lord to control his tenants' marriages. it might give procedural privileges: trial by combat is excluded, and trial by compurgation is secured and regulated. these medieval borough charters are very varied, and represent all stages of development and all grades of franchise. boroughs bought increasing rights and freedoms from their lord, who was usually the king. in the larger towns, where cathedrals and public building were built, there arose a system for teaching these technical skills and elaborate handicraft, wood, metal, stained glass, and stone work. a boy from the town would be bound over in apprenticeship to a particular craftsman, who supplied him with board and clothing. the craftsman might also employ men for just a day. these journeymen were not part of the craftsman's household as was the apprentice. after a few years of an apprenticeship, one became a journeyman and perfected his knowledge of his craft and its standards by seeing different methods and results in various towns. he was admitted as a master of his trade to a guild upon presenting an article of his work worthy of that guild's standard of workmanship: his "masterpiece". women, usually wives of brethren only, could be admitted. the tailors' guild and the skinners' guild are extant now. when guilds performed morality plays based on bible stories at town festivals, there was usually a tie between the bible story and the guild's craft. for instance, the story of the loaves and fishes would be performed by the bakers' or fishmongers' guild. the theme of the morality play was the fight of the seven cardinal virtues against the seven deadly sins for the human soul, a lifelong battle. the number seven was thought to have sacred power; there were seven sacraments, seven churches in the biblical apocalypse, seven liberal arts and seven devilish arts. the seven sacraments were: baptism, confirmation, lord's supper, penance, orders, matrimony, and extreme unction. a borough was run by a mayor elected usually for life. by being members of a guild, merchant-traders and craftsmen acquired the legal status of burgesses and had the freedom of the borough. each guild occupied a certain ward of the town headed by an alderman. the town aldermen, who were unpaid, made up the town council, which advised the mayor. the mayor of london received 40 pounds for hospitality, but in small towns, 20s. sufficed. often there were town police, bailiffs, beadles [messengers], a town crier, and a town clerk. london offices included recorder, prosecutor, common sergeant, and attorneys. in the center of town were the fine stone houses, a guildhall with a belfry tower, and the marketplace a square or broad street, where the town crier made public announcements with bell or horn. here too was the ducking stool for scandalmongers and the stocks which held offenders by their legs and perhaps their hands to be scorned and pelted by bystanders with, for instance, rotten fruit and filth. no longer were towns dominated by the local landholders. in london there were 4 royal princes, 6 great earls, 17 barons, 26 knights, and 11 female representatives of the peerage (counted in 1319). there was a wall with four towers surrounding the white tower, and this castle was known as the tower of london. another wall and a moat were built around it and it has reached its final form. hovels, shops, and waste patches alternated with high walls and imposing gateways protecting mansions. the mansions had orchards, gardens, stables, brewhouses, bakeries, guardrooms, and chapels. london streets were paved with cobbles and sand. each citizen was to keep the street in front of his tenement in good repair. later, each alderman appointed four reputable men to repair and clean the streets for wages. the repair of bishopsgate was the responsibility of the bishop because he received one stick from every cart of firewood passing through it. rules as to tiled roofs were enforced. a 1297 ordinance required all taverns to close at curfew, an hour that fluctuated. prostitutes were expelled from the city because the street with their bawdy houses had become very noisy. women huckster-retailers, nurses, servants, and loose women were limited to wearing hoods furred with lambskin or rabbitskin and forbidden to wear hoods furred with vair or miniver [grey or white squirrel] in the guise of good ladies. an infirmary for the blind was founded by a mercer, who became its first prior. the london mayoral elections were hotly fought over until in 1285, when the aldermen began to act with the aid of an elected council in each of the twenty-four wards, which decentralized the government of the city. each ward chose certain of its inhabitants to be councilors to the aldermen. this council was to be consulted by him and its advice to be followed. in 1291, the aldermen for the first time included a fishmonger. the fishmongers were the only guild at this time, besides the weavers, which had acquired independent jurisdiction by the transfer of control of their weekly hallmote from a public official to themselves. craftsmen began to take other public offices too. by the reign of edward ii, all the citizens were obliged to be enrolled among the trade guilds. a great quarrel between the weaver's guild and the magistracy began the control of the city by the craft guilds or city companies. admission to freedom of the city [citizenship] was controlled by the citizens, who decided that no man of english birth, and especially no english merchant, who followed any specific mistery [french word for a calling or trade] or craft, was to be admitted to the freedom of the city except on the security of six reputable men of that mistery or craft. no longer could one simply purchase citizenship. apprentices had to finish their terms before such admission, and often could not afford the citizenship fee imposed on them. only freemen could sell wares in the city, a custom of at least two hundred years. as economic activity in london became more complex and on a larger scale in the 1200s, some craftsmen were brought under the control of other crafts or merchants. the bakers fell under the control of the wholesale grain dealers; the weavers became pieceworkers for rich cloth merchants; the blademakers and shearers were employed by cutlers; coppersmiths were controlled by girdlers; fullers were controlled by entrepreneurial dyers; and the painters, joiners, and lorimers were controlled by the saddlers. guilds moved their meeting places from churches, which were now too small, to guild halls. the controlling officers of the large guilds met at the guildhall, which became the seat of mayoral authority. london streets in existence by this time include cordwainer, silver, cannon (candlewick), and roper. lanes included ironmonger, soper, spurrier, lad (ladles), distaff, needles, mede, limeburner, and hosier. fighting among groups was common in london. there was a street fight on a large scale in 1327 between the saddlers and a coalition of joiners, painters, and lorimers (makers of metal work of saddles). much blood was shed in the street battle between the skinners and the fishmongers in 1340. there was a city ordinance that no one except royal attendants, baronial valets, and city officials were to go about armed. disputes among neighbors that were brought to court included the use and upkeep of party walls, blocked and overflowing gutters, cesspits too close to a neighbor's property, noisy tenants, loss of light, and dangerous or overhanging structures. in 1275, a goldsmith was chief assay-master of the king's mint and keeper of the exchange at london. the king gave the goldsmiths' company the right of assay [determination of the quantity of gold or silver in an object] and required that no vessels of gold or silver should leave the maker's hands until they had been tested by the wardens and stamped appropriately. in 1279, goldsmith william farrington bought the soke of the ward containing the goldsmiths' shops. it remained in his family for 80 years. a patent of 1327 empowered the guild to elect a properly qualified governing body to superintend its affairs, and reform subjects of just complaint. it also prescribed, as a safeguard against a prevailing fraud and abuse, that all members of the trade should have their standing in cheapside or in the king's exchange, and that no gold or silver should be manufactured for export, except that which had been bought at the exchange or of the trade openly. some prices in london were: large wooden bedstead 18s., a small bedstead 2s., a large chest for household items 2s., feather beds 2-3s., a table 1s., a chair 4-6d., cloth gown lined with fur 1320s., plain coats and overcoats 2-8s., caps 2-8d., a pair of pencases with inkhorn 4d., a skin of parchment 1d., 24 sheets of paper 6d, a carcass of beef 15s., a pig 4s., a swan 5s., and a pheasant 4s. there was a problem with malefactors committing offenses in london and avoiding its jurisdiction by escaping to southwark across the thames. so southwark was given a royal charter which put it under the jurisdiction of london for peace and order matters and allowed london to appoint its tax collector. london forbade games being played because they had replaced practice in archery, which was necessary for defense. a royal inquiry into the state of the currency indicated much falsification and coin-clipping by the jews and others. about 280 jews and many englishmen were found guilty and hanged. the rest of the jews, about 16,000, were expelled in 1290. this was popular with the public because of the abuses of usury. there had been outbreaks of violence directed at the jews since about 1140. the king used italian bankers instead because he thought them more equitable in their dealings. the lepers were driven out of london in 1276. exports and imports were no longer a tiny margin in an economy just above the subsistence level. exports were primarily raw wool and cloth, but also grain, butter, eggs, herring, hides, leather goods such as bottles and boots, embroideries, metalware, horseshoes, daggers, tin, coal, and lead. imported were wine, silk, timber, furs, rubies, emeralds, fruits, raisins, currents, pepper, ginger, cloves, rice, cordovan leather, pitch, hemp, spars, fine iron, short rods of steel, bow-staves of yew, tar, oil, salt, cotton (for candlewicks), and alum (makes dyes hold). ships which transported them had one or two masts upon which sails could be furled, the recently invented rudder, and a carrying capacity of up to 200 tuns [about one ton]. many duties of sheriffs and coroners were transferred to county landholders by commissions. in coastal counties, there were such commissions for supervising coastal defense and maintaining the beacons. each maritime county maintained a coast guard, which was under the command of a knight. ports had well-maintained harbors, quays, and streets. by 1306 there was an office of admiral of the fleet of the ships of the southern ports. women could inherit land in certain circumstances. some tenants holding land in chief of the king were women. regulation of trade became national instead of local. trade was relatively free; almost the only internal transportation tolls were petty portages and viages levied to recoup the expense of a bridge or road which had been built by private enterprise. responsibility for the coinage was transferred from the individual moneyers working in different boroughs to a central official who was to become master of the mint. the round half penny and farthing [1/4 penny] were created so that the penny needn't be cut into halves and quarters anymore. edward i called meetings of representatives from all social and geographic sectors of the nation at one parliament to determine taxes due to the crown. he declared that "what touches all, should be approved by all". he wanted taxes from the burgesses in the towns and the clergy's ecclesiastical property as well as from landholders. he argued to the clergy that if barons had to both fight and pay, they who could do no fighting must at least pay. when the clergy refused to pay, he put them outside the royal protection and threatened outlawry and confiscation of their lands. then they agreed to pay and to renounce all papal orders contrary to the king's authority. the model parliament of 1295 was composed of the three communities. the first were the lords, which included seven earls and forty-one barons. because of the increase of lesser barons due to a long national peace and prosperity, the lords attending were reduced in numbers and peerage became dependent not on land tenure, but on royal writ of summons. the great barons were chosen by the king and received a special summons in their own names to the council or parliament. others were called by a general summons. the second community was the clergy, represented by the two archbishops, bishops from each of eighteen dioceses, and sixty-seven abbots. the third community was the commons. it was composed of two knights elected by the suitors who were then present at the county court, two burgesses elected by principal burgesses of each borough, and two representatives from each city. the country knights had a natural affinity with the towns in part because their younger sons sought their occupation, wife, and estate there. also, great lords recruited younger brothers of yeoman families for servants and fighting men, who ultimately settled down as tradesmen in the towns. the country people and the town people also had a community of interest by both being encompassed by the county courts. the peasants were not represented in the county courts nor in parliament. one had to have land to be entitled to vote because the landowner had a stake in the country, a material security for his good behavior. parliaments without knights and burgesses still met with the king. but it was understood that no extraordinary tax could be levied without the knights and burgesses present. ordinary taxes could be arranged with individuals, estates, or communities. the lower clergy ceased to attend parliament and instead considered taxes to pay to the king during their national church convocations, which were held at the same time as parliament. for collection purposes, their diocesan synod was analogous to the count court. the higher clergy remained in parliament because they were feudal vassals of the king. edward's council was the highest tribunal. it comprised the chancellor, treasurer and other great officers of state, the justices of the three courts, the master or chief clerks of the chancery, and certain selected prelates and barons. the council assisted the king in considering petitions. most petitions to the king were private grievances of individuals, including people of no social rank, such as prisoners. other petitions were from communities and groups, such as religious houses, the two universities, boroughs, and counties. these groups sometimes formed alliances in a common cause. women sometimes petitioned. from 1293, the petitions were placed in four stacks for examination by the king and council, by the chancery, by the exchequer, or by the justices. many hours were spent hearing and answering petitions. from 1305, the petitions were presented to the king in full parliament. the king still exercised a power of legislation without a full parliament. he might in his council issue proclamations. the chief justices still had, as members of the king's council, a real voice in the making of laws. the king and his justices might, after a statute has been made, put an authoritative interpretation upon it. royal proclamations had the same force as statutes while the king lived; sometimes there were demands that certain proclamations be made perpetual by being embodied in statutes, e.g. fixing wages. there was no convention that agreement or even the presence of representatives was required for legislation. the idea that the present can bind the absent and that the majority of those present may outvote the minority was beginning to take hold. edward i's councilors and justices took an oath to give, expedite, and execute faithful counsel; to maintain, recover, increase, and prevent the diminution of, royal rights; to do justice, honestly and unsparingly; to join in no engagements which may present the councilor from fulfilling his promise; and to take no gifts in the administration of justice, save meat and drink for the day. these were in addition to other matters sworn to by the councilors. parliament soon was required to meet at least once a year at the great hall at westminster located beside the royal palace. london paid its representatives 10s. per day for their attendance at parliament. from the time of edward ii, the counties paid their knightrepresentatives 4s. daily, and the boroughs paid their burgessrepresentatives 2s. daily. when it convened, the chancellor sat on the left and the archbishop of canterbury on the right of the king. just below and in front of the king his council sits on wool sacks brought in for their comfort from wool stored nearby. it answers questions. behind them on the wool sacks sit the justices, who may be called upon to give legal advice, e.g. in framing statutes. then come the spiritual and lay barons, then the knights, and lastly the elected burgesses and citizens. lawmaking became a function of parliament, of which the king's council is a part, instead of a function of the king with his council and justices. the common people now had a voice in lawmaking, though legislation could be passed without their consent. the first legislation proposed by the commons was alteration of the forest laws governing the royal pleasure parks. such a statute was passed in a bargain for taxes of a percentage of all movables, which were mostly foodstuffs and animals. the king offered to give up the royal right to tax merchandise for a new tax: customs on exports. the barons and knights of the county agreed to pay an 11th, the burgesses, a 7th, and the clergy a 10th on their other movables. in time, several boroughs sought to be included in the county representation so they could pay the lower rate. this new system of taxation began the decline of the imposition of feudal aids, knights' fees, scutages, carucage, and tallage, which had been negotiated by the exchequer with the reeves of each town, the sheriff and county courts of each county, and the bishops of each diocese. the staple [depot or mart, from the french "estaple"] system began when the export of wool had increased and parliament initiated customs duties of 6s.8d. on every sack of wool, woolfells [sheepskin with wool still on it], or skins exported in 1275. these goods had to be assessed and collected at certain designated ports. certain large wool merchants, the merchants of the staple, were allowed to have a monopoly on the purchase and export of wool. imports of wine were taxed as tunnage as before, that is there was a royal right to take from each wine ship one cask for every ten at the price of 20s. per cask. in 1297, edward i confirmed the magna carta and other items. judgments contrary to magna carta were nullified. the documents were to be read in cathedral churches as grants of edward and all violators were to be excommunicated. he also agreed not to impose taxes without the consent of parliament after baronial pressure had forced him to retreat from trying to increase, for a war in france, the customs tax on every exported sack of wool to 40s. from the 6s. 8d. per sack it had been since 1275. the customs tax was finally fixed at 10s. for every sack of wool, 2s. for each tun [casket] of wine, and 6d. for every pound's worth of other goods. the "tenths and fifteenths" tax levied on income from movables or chattels became regular every year. edward also confirmed the forest charter, which called for its earlier boundaries. and he agreed not to impound any grain or wool or and like against the will of the owners, as had been done before to collect taxes. also, the special prises or requisitions of goods for national emergency were not to be a precedent. lastly, he agreed not to impose penalties on two earls and their supporters for refusing to serve in the war in france when the king did not go. teh magna carta is the first statute. from 1299, statutes were recorded in a statute roll as they were enacted. by the end of the 1200s, the king's wardrobe, where confidential matters such as military affairs were discussed in his bedroom, became a department of state with the king's privy seal. the keeper of the privy seal was established as a new office by edward i in 1318. the wardrobe paid and provisioned the knights, squires, and sergeants of the king and was composed mostly of civil servants. it traveled with the king. the crown's treasure, plate, tents, hangings, beds, cooking utensils, wine, and legal and financial rolls were carried on pack horses or in two-wheeled carts drawn by oxen, donkeys, or dogs. the people in the entourage rode horses or walked. the other two specialized administrative bodies were the exchequer, which received most of the royal revenue and kept accounts at westminster, and the chancery, which wrote royal writs, charters, and letters, and kept records. the chief functions of administration in the 1300s were performed by the council, chancery, wardrobe, chamber [room off wardrobe for dressing and for storage], and exchequer. many of the chancellors had come from the wardrobe and chamber. in time, the chancellor ceased to be a part of the king's personal retinue and to follow the court. the chancery became primarily a department of central administration rather than a secretariat and record-keeping part of the royal household. the king used a privy seal to issue directives to the chancery. edward iii made some merchants earls and appointed them to be his ministers. he did not summon anyone to his council who did not have the confidence of the magnates [barons, earls, bishops, and abbots]. there was a recoinage due to debasement of the old coinage. this increased the number of coins in circulation. the price of wheat went from about 7s. in 1270 to about 5s. per quarter in 1280. also the price of an ox went from 14s. to 10s. then there were broad movements of prices, within which there were wide fluctuations, largely due to the state of the harvest. from 1280 to 1290, there was runaway inflation. in some places, both grain and livestock prices almost doubled between 1305 and 1310. wheat prices peaked at 15s.5d. a quarter in the famine year of 1316. in 1338, prices dropped and remained low for twenty years. the poor were hurt by high prices and the lords of the manors were hurt by low prices. as before, inadequate care and ignorance of nutrition caused many infant deaths. accidents and disease were so prevalent that death was always near and life insecure. many women died in childbirth. edward i always sought the agreement of parliament before assembling an army or taking actions of war, and parliamentary consent came to be expected for such. he completed the conquest and annexation of wales in 1284. the feudal army was summoned for the last time in the 100 year war with france, which began in 1337. in it the english longbow was used to pierce french knights' armor. there had been much competition between the strength of arrows to pierce and the heaviness of armor to resist. guns and cannon with gunpowder were introduced in 1338. a system to raise an army by contract was developed. contracts were made with nobles, knights, or esquires who undertook to enlist an agreed number of armored men-at-arms and archers, who were paid wages. the king provided transport for each contractor and his retinue, baggage, and horses. the title of "knight" now resumed its military character as well as being a social rank. after edward i died in 1307, there was a period of general lawlessness and contests for power between earls and barons and the irresponsible king edward ii, who was not a warrior king. he eventually was assassinated. also in 1307, parliament required the king to obtain its consent for any exchange or alteration of the currency. by 1319, the guilds of london had become so powerful that they extracted a charter from the king that to be a citizen of london one had to be a member of a guild. by 1326, scholars, the nobility, and the clergy had reading eyeglasses, which had been invented in italy, probably by the glass blowers. italy was famous for its glasswork. the first eyeglasses were fabricated by pouring molten glass into curved molds. the actual shape was difficult to control because thermal expansion and contraction resulted in bubbles and other optical imperfections. as of 1336, importing foreign cloth or fur, except for use by the king's family, was prohibited, as was the export of unwoven wool. later, this was relaxed and a customs tax of 33% was imposed on wool exported. foreign cloth workers were allowed by statute to come to live in the nation, be granted franchises, and be in the king's protection. but no cloth was to be exported until it was fulled. during the reign of edward iii, flanders weavers were encouraged to come to england to teach the english how to weave and finish fine cloth. a cloth industry grew with all the manufacturing processes under the supervision of one capitalist manufacturer, who set up his enterprise in the country to avoid the regulations of the towns. the best places were hilly areas where there were many streams and good pasture for flocks of sheep. he hired shearers to cut the nap as short as possible to give a smooth surface, then spinsters to card and spin the wool in their country cottages, then weavers, and then fullers and dyers to come to fulling mills established near streams for their waterpower. fulling became mechanized as heavy wooden hammers run by waterpower replaced feet trampling the cloth covered with soap or fuller's clay. the shaft loom was a technological advance in weaving. this loom was horizontal and its frames, which controlled the lifting of the warp threads, could each be raised by a foot treadle. this left both hands free to throw and catch the shuttle attached to the weft thread from side to side through the warp. also many more weaving patterns became possible through the use of different thread configurations on the frames. in 1341, the commons forced king edward iii and council to approve their petition when parliament was still in session so that they would draft the legislation in true accordance with the petition. this had not been done when drafting had been done after parliament ended, when the phrase "saving the prerogatives of the king" was often added. also the lords and commons consulted each other and joined in petitions. but they usually stated their conclusions to the king separately. it was considered a burden rather than a privilege to attend parliament and elections for such were not often contested. they were conducted according to local custom until 1600. in 1348, the commons voted a tax of 1/15 th on movables for three years with the proviso that it be spent only on the war against scotland. this began the practice of appropriation of funds. in 1381, began the practice of appointing treasurers of the subsidies to account to parliament for both receipts and disbursements. alien merchants were under the king's special protection. in return for paying extra import and export duties, edward iii gave alien merchants full rights of trade, travel, and residence in england free of all local tolls and restrictions, and guaranteed a fair hearing of their commercial and criminal cases in special pie powder (after french "pie poudrous" or dusty feet) courts at fairs. the law edward i remodeled the law in response to grievances and to problems which came up in the courts. the changes improved the efficiency of justice and served to accommodate it to the changing circumstances of the social system. "no man by force of arms, malice or menacing shall disturb anyone in making free election [of sheriffs, coroners, conservators of the peace by freeholders of the county]." "no city, borough, town, nor man shall be amerced without reasonable cause and according to the severity of his trespass. that is, every freeman saving his freehold, a merchant saving his merchandise, a villein saving his wainage [implements of agriculture], and that by his peers." no distress shall be taken of ploughing-cattle or sheep. no loan shall be made for interest. if an heir who is a minor is married off without the consent of the guardian, the value of the marriage will be lost and the wrongdoer imprisoned. if anyone marries off an heir over 14 years of age without the consent of the guardian, the guardian shall have double the value of the marriage. moreover, anyone who has withdrawn a marriage shall pay the full value thereof to the guardian for the trespass and make amends to the king. and if a lord refuses to marry off a female heir of full age and keep her unmarried because he covets the land, then he shall not have her lands more than two years after she reaches full age, at which time she can recover her inheritance without giving anything for the wardship or her marriage. however, if she maliciously refuses to be married by her lord, he may hold her land and inheritance until she is the age of a male heir, that is, 21 years old and further until he has taken the value of the marriage. aid to make one's son a knight or marry off his daughter of a whole knight's fee shall be taken 20s., and 400s. [yearly income from] land held in socage 20s. [5%], and of more, more; and of less, less; after the rate. and none shall levy such aid to make his son a knight until his son is 15 years old, nor to marry his daughter until she is seven year old. a conveyance of land which is the inheritance of a minor child by his guardian or lord to another is void. dower shall not abate because the widow has received dower of another man unless part of the first dower received was of the same tenant and in the same town. but a woman who leaves her husband for another man is barred from dower. a tenant for a term of years who has let land from a landlord shall not let it lie waste, nor shall a landlord attempt to oust a tenant for a term of years by fictitious recoveries. when two or more hold wood, turfland, or fishing or other such thing in common, wherein none knows his several, and one does waste against the minds of the others, he may be sued. lands which are given to a man and his wife upon condition that if they die without heirs, the land shall revert to the donor or his heir, may not be alienated to defeat this condition. if a man takes land in marriage with a wife, and she dies before him, the land will revert to the donor or his heir, unless the couple has a child, in which case the husband will have the land by the courtesy of the nation for his life before it reverts to the donor or his heir. young salmon shall not be taken from waters in the spring. the ecclesiastical law had a doctrine for women-covert, i.e. women under the protection or coverture of a husband. it held that chattels of a woman who married vested in her husband, but he could not dispose of them by will. her jewelry, but not her apparel, could go to his creditors if his assets didn't cover his debts. if she was a merchant when she married, she could still sell her goods in the open market. the husband also had the right to the rents and profits from his wife's real estate, but not the real estate itself, unless by the birth of a child he became tenant for life by courtesy. only the father, but not the mother had authority over their children. a father had a right to his child's services, and could sue a third party for abducting, enticing away, or injuring the child, just as he could for his servants. a husband was liable for the debts of his wife, even if incurred before the marriage. he was answerable for her torts and trespasses, except for battery. for this reason, he was allowed to chastise her, restrain her liberty for gross misbehavior, and punish her by beating for some misdemeanors. but the courts would protect her from death, serious bodily harm, or his failure to supply her the necessities of life. promises under oath by married women were not recognized. a conveyance or agreement of a married woman was void. these principles held only if she was under the protection of her husband, i.e. a woman-covert, and not if they lived separately, for instance if he went to sea. if separated, she had a right to alimony from him to maintain herself. a free tenant may alienate his land freely, but if the alienation was for an estate in fee simple [to a man and his heirs], the person acquiring the land would hold of the land's lord and not of the person alienating the land. (this halted the growth of subinfeudation and caused services as well as incidents of aids, relief, escheat, wardship, and marriage to go directly to the chief lord. it also advantaged the crown as overlord, which then acquired more direct tenants.) one may create an estate which will descend in unbroken succession down the line of inheritance prescribed in the original gift as long as that line should last, instead of descending to all heirs. this was called a fee simple conditional holding of land. the successive occupants might draw the rents and cut the wood, but on the death of each, his heir would take possession of an unencumbered interest, unfettered by any liability for the debt of his ancestor or by any disposition made by him during his lifetime e.g. a wife's estate in dower or a husband's estate in courtesy. if there was no issue, it reverted to the original donor. this curtailed the advantage of tenants of the greater barons who profited by increased wardships and reliefs from subinfeudation from subdivision and better cultivation of their land while still paying the greater barons fixed sums. this statute that protected reversionary estates incidentally established a system of entails. this new manner of holding land: "fee tail", is in addition to the concepts of land held in fee simple and land held for life. the donor could give directions that an estate of inheritance go to a man or woman and certain classes of particular heirs rather than reverting to himself. a fee tail was often given to a man and the issue of his body. no donee or nor his heirs could alienate the land held in fee tail.interests in remainder or reversion of estates in land replaced the lord's tenurial right to succeed to land by escheat if his tenant dies without heirs. anyone disseising another whereby he also robs him or uses force and arms in the disseisin shall be imprisoned and fined. the plaintiff shall recover seisin and damages. "all must be ready at the command and summons of sheriffs, and at the cry of the country, to sue and arrest felons as necessary as well within franchise as without." otherwise, he shall be fined. a lord defaulting shall lose his franchise to the king. a bailiff defaulting shall be imprisoned a year as well as fined, or be imprisoned two years if he cannot pay the fine. a sheriff, coroner, or any other bailiff who conceals a felony will be imprisoned for a year and pay a fine, or be imprisoned for three years if he cannot pay the fine. villeins must report felons, pursue felons, serve in the watch, and clear growth of concealing underwood from roads. they must join the military to fight on the borders when called. desertion from the army is punishable. accessories to a crime shall not be declared outlaw before the principal is proven guilty. (this made uniform the practice of the various counties.) only those imprisoned for the smaller offenses of a single incidence of petty larceny, receipt of felons, or accessory to a felony, or some other trespass not punishable by life or limb shall be let out by sufficient surety. prisoners who were outlawed or escaped from prison or are notorious thieves or were imprisoned for felonious house burning, passing false money, counterfeiting the king's seal, treason touching the king himself, or other major offenses or have been excommunicated by the church may not be released. killing in self-defense and by mischance shall be pardoned from the king's indictment. killing by a child or a person of unsound mind shall be pardoned from the king's indictment. (but a private accuser can still sue.) any man who ravishes [abducts] any woman without her consent or by force shall have the criminal penalty of loss of life or limb. (the criminal penalty used to be just two years in prison.) trespasses in parks or ponds shall be punished by imprisonment for three years and a fine as well as paying damages to the wronged person. after his imprisonment, he shall find a surety or leave the nation. "forasmuch as there have been often times found in the country devisors of tales, where discord, or occasion of discord, has many times arisen between the king and his people, or great men of this realm; for the damage that has and may thereof ensue, it is commanded, that from henceforth none be so hardy to tell or publish any false news or tales, whereby discord or occasion of discord or slander may grow between the king and his people, or the great men of the realm." anyone doing so shall be imprisoned until he brings into the court the first author of the tale. a system of registration and enforcement of commercial agreements was established by statute. merchants could obtain a writing of a debt sealed by the debtor and authenticated by royal seal or a seal of a mayor of certain towns, and kept by the creditor. failure to pay a such a debt was punishable by imprisonment and, after three months, the selling of borough tenements and chattels and of county lands. during the three months, the merchant held this property in a new tenure of "statute merchant". (prior to this, it was difficult for a foreign merchant to collect a debt because he could not appear in court which did not recognize him as one of its proper "suitors" or constituents, so he had to trust a local attorney. also, the remedy was inadequate because the history of the law of debt was based on debt as a substitute for the blood feud, so that failure to pay meant slavery or death. also a debtor's land was protected by feudal custom, which was contrary to the idea of imposing a new tenant on a lord.) "in no city, borough, town, market, or fair shall a person of the realm be distrained for a debt for which he is not the debtor or pledge." anyone making those passing with goods through their jurisdiction answer to them in excess of their jurisdiction shall be grievously amerced to the king. no market town shall take an outrageous toll contrary to the common custom of the nation. since good sterling money has been counterfeited with base and false metal outside the nation and then brought in, foreigners found in the nation's ports with this false money shall forfeit their lives. anyone bringing money into the nation must have it examined at his port of entry. payments of money shall be made only by coin of the appropriate weight delivered by the warden of the exchange and marked with the king's mark. (a currency exchange was established at dover for the exchange of foreign currency for english sterling.) the silver in craftwork must be sterling and marked with the leopard's head. the gold in craftwork must meet the standard of the touch of paris. the assize of bread and ale had been and was enforced locally by local inspectors. now, the crown appointed royal officers for the gauge of wines and measurement of cloths. edicts disallowed middlemen from raising prices against consumers by such practices as forestalling [intercepting goods before they reached the market and then reselling them] or engrossing [buying a large supply of a commodity to drive up the price] and price regulation was attempted. for instance, prices were set for poultry and lamb, in a period of plenty. maximum prices were set for cattle, pigs, sheep, poultry, and eggs in 1314, but these prices were hard to enforce. in london examples of prices set are: best hen 3d.2q., best wild goose 4d., best hare 4d., best kid 10d., best lamb 4d., best fresh herrings 12 for 1d., best pickled herrings 20 for 1d., best haddock 2d., best fresh salmon 3s. freemen may drive their swine through the king's demesne forest to feed in their own woods or elsewhere. no man shall lose his life or limb for killing deer in the forest, but instead shall be grievously fined or imprisoned for a year. the forest charter allowed a man to cut down and take wood from his own woods in the king's forest to repair his house, fences, and hedges. he may also enclose his woods in the king's forest with fences and hedges to grow new trees and keep cattle and beasts therefrom. after seven years growth of these new trees, he may cut them down for sale with the king's permission. each borough has its own civil and criminal ordinances and police jurisdiction. borough courts tended to deal with more laws than other local courts because of the borough's denser populations, which were composed of merchants, manufacturers, and traders, as well as those engaged in agriculture. only borough courts have jurisdiction over fairs. in some boroughs the villein who resides for a year and a day becomes free. there are special ordinances relating to apprentices. there are sometimes ordinances against enticing away servants bound by agreement to serve another. the wife who is a trader is regarded in many places as a feme sole [single woman rather than a feme covert [woman-covert], who was under the protection of a husband]. there may be special ordinances as to the liability of masters for the acts of their apprentices and agents, or as to brokers, debt, or earnest money binding a bargain. the criminal and police jurisdiction in the borough was organized upon the same model as in the country at large, and was controlled by the king's courts upon similar principles, though there are some survivals of old rules, such as mention of the bot and the wer. the crimes committed are similar to those of the country, such as violence, breaches of the assize of bread and beer, stirring up suits before the ecclesiastical courts, digging up or obstructing the highway, not being enrolled in a tithing, encroachments upon or obstructions of rights of common. the most striking difference with the country at large are the ordinances on the repair or demolition of buildings, encroachments on another's building, fires, and nuisances. specimens of other characteristic urban disputes are: selling bad food, using bad materials, unskillful or careless workmanship, fraudulent weights and measures, fraud in buying and selling, forestalling or regrating [buying in one market to resell in another market], acting in a way likely to endanger the liberties of the borough, usury, trading without being a citizen, assisting other unlicensed persons to trade, unlawfully forming a guild, complaints against various guilds in which trade might be organized. since the ordinances were always liable to be called in question before the king's courts, they tended to become uniform and in harmony with the principles of the common law. also, trading between boroughs kept them knowledgeable about each other's customs and conditions for trade, which then tended to standardize. boroughs often had seals to prove communal consent and tended to act as a corporate body. borough ordinances often include arson such as this one: "and if a street be set on fire by any one, his body shall be attached and cast into the midst of the fire." robbery by the miller was specially treated by an ordinance that "and if the miller be attainted [found guilty] of robbery of the grain or of the flour to the amount of 4d., he shall be hanged from the beam in his mill." in london, an ordinance prescribed for bakers for the first offense of making false bread a forfeiture of that bread. for the second offense was prescribed imprisonment, and for the third offense placement in the pillory. a london ordinance for millers who caused bread to be false prescribed for them to be carried in a tumbrel cart through certain streets, exposed to the derision of the people. by statute, no one may make a gift or alienation of land to the church. an attempt to do so will cause the land to escheat to the lord, or in his default, to the king. religious houses may not alienate land given to them by the king or other patrons because such gifts were for the sake of someone's soul. an attempt to do so will cause the land to revert to the donor or his heir. if the church did not say the prayers or do the other actions for which land was given to it, the land will revert to the donor or his heir. land may not be alienated to religious bodies in such a way that it would cease to render its due service to the king. (the church never died, never married, and never had children.) the church shall send no money out of the nation. (this statute of mortmain was neutralized by collusive lawsuits in which the intended grantor would sue the intended grantee claiming superior title and then would default, surrendering the land to the intended grantee by court judgment.) "concerning wrecks of the sea, where a man, a dog, or a cat escape alive out of the ship, that such ship nor barge nor anything within them shall be deemed wreck, but the goods shall be saved and kept by view of the sheriff, coroner, or the king's bailiff". if anyone proves the goods were his within a year and a day, they shall be restored to him without delay. otherwise, they shall be kept by the king. "and where wreck belongs to one other than the king, he shall have it in like manner". if he does otherwise, he shall be imprisoned and pay damages and fine. some statutes applied only to kent county, which had a unique position between london and the continent. money flowed between england and the continent through kent. so kent never developed a manorial system of land holding, but evolved from a system of clans and independent villages directly into a commercial system. in kent, all men are free and may give or sell their lands without permission of their lords, as before the conquest. one could sell or give away his land without the consent of one's lord. the services of the land, however, could only be sold to the chief lord. inheritance of land was to all sons by equal portions, and if there were no sons, then to all daughters in equal portions. the eldest brother has his choice of portion, then the next oldest, etc. the goods of a deceased person were divided into three parts after his funeral expenses and debts were paid. one third went to the surviving spouse. one third went to the deceased's sons and daughters. one third could be disposed by will of the decedent. if there were no children, one half went to the spouse and one half went according to will. if an heir was under 15 years old, his next of kin to whom inheritance could not descend was to be his guardian. a wife who remarried or bore a child lost her dower land. a husband lost his dower if he remarried. if a tenant withheld rent or services, his lord could seek award of court to find distress on his tenement and if he could find none, he could take the tenement for a year and a day in his hands without manuring it. it the tenant paid up in this time, he got the tenement back. if he didn't within a year and a day, however, the lord could manure the land. a felon forfeited his life and his goods, but not his lands or tenements. a wife of a felon had the dower of one half or her husband's lands and tenements. the common law recognized the tort of false imprisonment if a man arrested as a felon, a person who was not a felon. judicial procedure the writ of quo warranto [by what right] is created, by which all landholders exercising jurisdictions must bring their ancestors' charters before a traveling justice for the common pleas for examination and interpretation as to whether they were going beyond their charters and infringing upon the jurisdiction of the royal court. as a result, many manor courts were confined to manorial matters and could no longer view frankpledge or hear criminal cases, which were reserved for the royal courts. in the manor courts which retained criminal jurisdiction, there was a reassertion of the obligation to have present a royal coroner, whose duty it was to see that royal rights were not infringed and that the goods of felons were given to the crown and not kept by the lords. the supreme court was the king and his council in parliament. it heard the most important causes, important because they concern the king, or because they concern very great men (e.g. treason), or because they involve grave questions of public law, or because they are unprecedented. it has large, indefinite powers and provides new remedies for new wrongs. the office of great justiciar disappears and the chancellor becomes the head of the council. after the council were the royal courts of the king's bench, common pleas, and the exchequer, which had become separate, each with its own justices and records. the court of common pleas had its own chief justice and usually met at westminster. this disadvantaged the small farmer, who would have to travel to westminster to present a case. the king's council maintained a close connection with the court of the king's bench, which heard criminal cases and appeals from the court of common pleas. it traveled with the king. there were many trespass cases so heard by it in the reign of edward i. the king's council did a great deal of justice, for the more part criminal justice. it was supported by the populace because it dealt promptly and summarily with rebellion or some scandalous acquittal of a notorious criminal by bribed or partial jurors, and thereby prevented anarchy. its procedure was to send for the accused and compel him to answer upon oath written interrogatories. affidavits were then sworn upon both sides. with written depositions before them, the lords of the council, without any jury, acquit or convict. fines and imprisonments were meted out to rioters, conspirators, bribers, and perjured jurors. no loss of life or limb occurred because there had been no jury. in criminal cases, witnesses acquainted with particular facts were added to the general assize of twelve men from each hundred and four men from each town. the assize then bifurcated into the grand jury of twelve to twenty-four men and the petty jury or jury of verdict of twelve men, which replaced ordeal, compurgation, and trial by combat as the method of finding the truth. the men of the petty jury as well as those of the grand jury were expected to know or to acquaint themselves with the facts of the cases. the men of the petty jury tended to be the same men who were on the grand jury. felony included such crimes as homicide, arson, rape, robbery, burglary, and larceny. secret homicide was still murder. burglary was an offense committed in times of peace and consisted of breaking into churches, houses, and into the walls and gates of villages and boroughs. these six offenses could be prosecuted by indictment or private accusation by an individual. the penalties involved loss of life or limb or outlawry; a felon's goods were confiscated by the crown and his land was forfeited to the crown for a year and a day, after which it escheated to the felon's lord. the peace of the king now did not die with the king, but renewed automatically without an interval before the inauguration of a new king. notorious felons who would not consent or put themselves on inquests for felonies with which they were charged at royal courts were put in strong and hard imprisonment to persuade them to accept trial by assize. this inducement progressed into being loaded with heavy chains and placed on the ground in the worst part of the prison and being fed a only little water one day and a little bread the next. sometimes pieces of iron or stones were placed one another onto their prone bodies to persuade them to plead. this then developed into being loaded with as much iron as could be borne, and finally into being pressed to death ["peine forte et dure"]. many of these men chose to die by this pressing so that their families could inherit their property, which would have been forfeited if they had been convicted of serious crimes. the most common cases in the court of common pleas were "detinue" [wrongful detention of a good or chattel which had been loaned, rented, or left for safekeeping with a "bailee", but belonged to the plaintiff], "debt" [for money due from a sale, for money loaned, for rent upon a lease for years, from a surety, promised in a sealed document, or due to arbitrators to whom a dispute had been submitted] and "account" [e.g. against bailiffs of manors, a guardian in socage, and partners]. it also heard estovers [right to use during a lease] of wood, profit by gathering nuts, acorns, and other fruits in wood, corody [allowance of food], yearly delivery of grain, toll, tunnage, passage, keeping of parks, woods, forests, chases, warrens, gates, and other bailiwicks, and offices in fee. the itinerant justices gradually ceased to perform administrative duties on their journeys because landed society had objected to their intrusiveness. edward i substituted regular visitations of justices of assize for the irregular journeys of the itinerant justices. each one of four circuits had two justices of assize. from about 1299, these justices of assize heard cases of gaol delivery. their jurisdiction expanded to include serious criminal cases and breach of the king's peace. breaches of the forest charter laws were determined by justices of the king's forest, parks, and chases, along with men of assize. coroners' inquest procedures were delineated by statute and included describing in detail in the coroner's rolls every wound of a dead body, how many may be culpable, and people claiming to have found treasure who might be suspects. the precedent for punishment for treason was established by the conviction of a knight, david ab gruffydd, who had turned traitor to the welsh enemy, after fighting with edward and being rewarded with land, during the conquest of wales. he had plotted to kill the king. he was found guilty of treason by parliament and condemned to be dragged at the heels of horses for being a traitor to his knightly vows, hanged by the neck for his murders, cut down before consciousness left him to have his entrails cut out for committing his crimes during the holy week of easter, and his head cut off and his body divided into four parts for plotting against the king's life. the head was placed on the tower of london and his body sections were placed in public view at various other locations in england. this came to be known as "hanging, drawing, and quartering". prior to this the penalty had been imprisonment, usually followed by ransom. trial by combat is now limited to certain claims of enfeoffment of large land holding and is barred for land held in socage, burgage, or by marriage. assize is the usual manner of trial, but compurgation remains in the borough court long after it becomes obsolete in the royal courts. it came to be that defendants no longer request assizes but are automatically put to them. numerous statutes protect the integrity of the courts and king's offices by double and treble damages and imprisonment for offenses such as bribery, false informers, conspiracy to falsely move or maintain pleas, champerty [covenant between a litigant and another for the other to have a part or profit in the award in return for maintaining the suit], conflict of interest by court officers taking part in a quarrel pending in court or working any fraud whereby common right may be delayed or disturbed. there had been many abuses, the most common of which was extortion by sheriffs, who gaoled people without cause to make them pay to be released. the 1275 prohibition of maintenance of a quarrel of a party in court by a nonparty was extended in 1327 to all persons, including the king's councilors and ministers, and great men, e.g. by sending letters. in 1346, this prohibition specifically included prelates, earls, barons taking in hand quarrels other than their own, or maintaining them for gift, promise, amity, favor, doubt, or fear, in disturbance of law and hindrance of right. the reason given was that there had been persons disinherited, delayed or disturbed in their rights, and not guilty persons convicted or otherwise oppressed. all great men were required to put out of their service all maintainers who had been retained, and void their fees and robes, without giving them aid, favor, or comfort. this law was not obeyed. the king reserved to himself and his council in its judicial capacity the correction of all breaches of the law which the lower courts had failed to remedy, whether from weakness, partiality, corruption, or jury timidity, and especially when the powerful barons defied the courts. the chancery also sought to address causes which were impeded in their regular course, which often involved assaults, batteries, and forcible dispossessions. disputes within the royal household were administered by the king's steward. he received and determined complaints about acts or breaches of the peace within twelve miles around the king's person or "verge". he was assisted by the marshall in the "court of the hall" and by the clerk of the market when imposing fines for trading regulation violations in the "court of the market". ecclesiastical courts were successful in their competition with the secular courts for jurisdiction over testamentary matters [concerning wills] and succession [no will] to chattels. there were local courts of the vill, borough, manor, hundred, county, sheriff, escheator, and royal bailiff, with overlapping jurisdictions. the county court in its full session, that is, as it attended the itinerant justices on their visitation, contained the archbishops, bishops, priors, earls, barons, knights, and freeholders, and from each township four men and the reeve, and from each borough twelve burgesses. it was still the folkmote, the general assembly of the people. in 1293, suitors who could not spend 40s. a year within their county were not required to attend their county court. the most common plea in the hundred court was trespass. it also heard issues concerning services arising out of land, detention of chattels, small debts, wounding or maiming of animals, and personal assaults and brawls not amounting to felony. it met every three weeks. the sheriff held his turn twice a year and viewed frankpledge once a year. when edward i came to the throne, over half of the approximately 600 hundred courts had gone under the jurisdiction of a private lord owing to royal charter, prescriptive right, and usurpation. the sheriff's powers in these hundreds varied. in some, the sheriff had no right of entry. in the manor courts, actions of debt, detinue, and covenant were frequent. sometimes there are questions of a breach of warranty of title in agreements of sale of land. accusations of defamation were frequent; this offense could not be taken to the king's court, but it had been recognized as an offense in the anglo-saxon laws. in some cases, the damages caused are specifically stated. for instance, defamation of a lord's grain would cause other purchasers to forbear buying it. there are frequent cases of ordinary thefts, trespasses, and assaults. the courts did rough but substantial justice without distinction between concepts such as tort and contract. in fact, the action of covenant was the only form of agreement enforceable at common law. it required a writing under seal and awarded damages. manor court law was not technical, but elastic, and remedies could include injunctions, salary attachment, and performance of acts. the steward holding the manor court was often a lawyer. some pleas in the manors of the abbey of bec were: 1. hugh le pee in mercy (fine, 12d.) for concealing a sheep for half a year. pledges, simon of newmere, john of senholt 2. william ketelburn in mercy (fine, 13s.4d.) for divers trespasses. pledge, henry ketelburn. 3. hugh derwin for pasture, 6d. richard hulle for divers trespasses, 12d. henry stanhard for pasture, 6d. 4. william derwin for a trespass, 6d.; pledge, william sperling. 5. hugh hall gives the lord 12d. that he may have the judgment of the court as to a tenement and two acres of land, which he demands as of right, so he says. and it being asserted that the said land is not free[hold] let the court say its say. and the court says that the tenement and one of the two acres are of servile condition and that the other acre is of free condition. the case is reserved for the lord's presence. pledge, john brian. 6. john palmer is put in seisin of his father's tenement and gives the lord 53s.4d. as entry money. 7. william ketelburn gives the lord 6s.8d. that he may be removed from the office of reeve. pledge, robert serjeant. 8. william frith for subtraction of work, 6d. john reginald for the same, 6d. john of senholt, 12d. william ketelburn, 12d. 9. for the common fine to be paid on s. andrew's day, 100s. 10. it is presented by the chief pledges that godfrey serjeant has made default; also that john le pee has unlawfully thrown up a bank; therefore let it be set to rights. 11. robert smith is put in seisin of his father's tenement and gives the lord four pounds for entry money. pledge, robert serjeant. 12. william ketelburn for a trespass, 13s.4d. 13. william fleming gives four pounds for leave to contract [marriage] with widow susan. pledge, richard serjeant. 14. john mabely gives the lord 3s. to have the judgment of twelve men as to certain land whereof noah deforces him; pledges, richard smith, ralph bernard. the said jurors say that noah the fat has right; therefore etc. 15. agnes stampelove gives the lord 2s. for leave to come and go in the vill but to dwell outside the lord's land. pledge, richard smith. 16. godfrey tailor the younger for a trespass, 2s. 17. whereas godfrey tailor the younger has demanded against noah a farthing land, now the action is compromised in manner following: godfrey for himself and his heirs remises to the said noah and his heirs all right and claim which he has or can have in the said farthing land by reason of the gift made by his grandfather john tailor. 18. agnes mabely is put in seisin of a farthing land which her mother held, and gives the lord 33s.4d. for entry money. pledges, noah, william askil. 19. the full court declares that in case any woman shall have altogether quitted the lord's domain and shall marry a freeman, she may return and recover whatever right and claim she has in any land; but if she shall be joined to a serf, then she cannot do this during the serf's lifetime, but after his death she may. t 20. william alice's son is put in seisin of a bakehouse in the king's street, and shall keep up the house at his own cost and gives 12d. for entry money, and 10s. annual rent payable at three terms, viz. 3s.4d. at martinmas, 3s.4d. at lady day, 3s.4d. at christmas. pledges, adam clerk, john deboneir. 20. john son of alma demands a cottage which henry fleming holds and gives the lord 12d. for the oath and recognition of 12 men; pledge, richard jordan. the jurors say that henry fleming has the better right. 21. baldwin cobbler's son finds [as pledges] walter cobbler, roger of broadwater, robert linene, william frances, that notwithstanding his stay in london he will always make suit with his tithing and will at no time claim any liberty contrary to the lord's will and will come to the lord whenever the lord wills. 22. simon patrick gives the lord 12d. to have the judgment of the court as to a cottage of which the widow of geoffrey dogers deforces him; pledge, simon of strode. the said jurors say that the said simon has the better right. and the said simon remises and quitclaims all his right to his sister maud and her husband john horin, [who] gives the lord 10s. for entry money; pledges, simon patrick, john talk. 23. hugh wiking for not making suit at the lord's mill, 12d. 24. it was presented that william derwin and john derwin (fine, 12d.) committed a trespass against agnes dene, and the cry was raised, therefore etc. 25. hugh churchyard contracted [marriage] without the lord's leave; [fine] 12d. 26. let juliana forester be distrained for her default, also william moor. 27. john kulbel in mercy (fine, 12d.) for not producing gregory miller, and he is commanded to produce him at the next court. 28. hugh andrew's son gives the lord 4s. for leave to marry; pledge, robert serjeant. 29. juliana forester gives the lord 12d. in order that for the future no occasion may be taken against her for neglect of suit of court. 30. john franklain is put in seisin of his father's tenement and gives the lord 20s. for entry; pledge, robert serjeant. 31. henry cross gives the lord 4s. for license to marry; pledge, robert serjeant. 32. isabella warin gives the lord 4s. for leave to give her daughter mary in marriage; pledge, john serjeant. 33. it is presented by the whole township that ralph le war has disseised the lord of a moiety of a hedge, whereas it had often been adjudged by award of the court that the said hedge belongs as to one moiety to the lord and as to the other to ralph, and the said ralph claims and takes to his use the whole to the lord's damage etc. also they say that the said ralph holds overcolkescroft, which land by right is the lord's. 34. it is presented by unanimous verdict of the whole court that if anyone marries a woman who has right in any land according to the custom of the manor and is seised thereof by the will of the lord, and the said woman surrenders her right and her seisin into the hands of the lord and her husband receives that right and seisin from the hands of the lord, in such case the heirs of the woman are for ever barred from the said land and the said right remains to the husband and his heirs. therefore let william wood, whose case falls under this rule, hold his land in manner aforesaid. and for the making of this inquest the said william gives the lord 6s.8d. 35. the tenements of lucy mill are to be seized into the lord's hands because of the adultery which she has committed and the bailiff is to answer for them. the chief pledges present that cristina daughter of richard maleville has married at london without the lord's licence; therefore let the said richard be distrained. he has made fine with 12d. also that alice berde has done the same; therefore let her be distrained. also that robert fountain has committed a trespass against william gery; therefore the said robert is in mercy; pledge, humfrey; fine, 6d. also that richard maleville has drawn blood from stephen gust; therefore he is in mercy; fine, 2s. 36. geoffrey coterel in mercy for a battery; fine, 12d.; pledge, adam serjeant. geoffrey coterel for trespass in the hay; fine, 6d.; pledge, alan reaper. hugh of senholt in mercy for trespass in the green wood; fine, 6d. 37. hugh wiking in mercy for delay in doing his works; fine, 6d. hugh churchyard for trespass in [cutting] thorns; fine, 6d. thomas gold in mercy for trespass in the wood; fine, 3d.; pledge, robert grinder. 38. william dun in mercy for subtraction of his works due in autumn; fine, 2s. avice isaac for the same, 6d.; hugh wiking for the same, 6d.; agnes rede in mercy for her daughter's trespass in the corn [grain], 6d. 39. walter ash in mercy for not making suit to the lord's mill; fine, 6d. hugh pinel in mercy for diverting a watercourse to the nuisance of the neighbors; fine, 6d.; pledge, robert fresel. 40. john dun in mercy for carrying off corn [grain] in the autumn; pledge, adam white. alan reaper gives the lord 12d. on account of a sheep which was lost while in his custody. 41. adam white in mercy for bad mowing; fine, 6d. hugh harding in mercy for the same; fine, 6d. 42. the chief pledges present that henry blackstone (fine, 6d.), hugh churchyard (fine, 18d.), walter ash (fine, 6d.), henry of locksbarow (fine, 12d.), avice isaac (fine, 6d.), richard matthew (fine, 6d.), hugh wiking (fine,--), ralph dene (fine, 6d.), john palmer (fine, 12d.), john coterel (fine, 6d.), john moor (fine, 6d.), john cubbel (fine, 12d.), hugh andrew (fine, 6d.), philip chapman (fine, 6d.), john fellow (fine, 12d.), robert bailiff (fine, 6d.), alice squire (fine, 12d.), john grately (fine,--), richard hull (fine, 6d.), osbert reaper (fine, 6d.), and robert cross (fine, 6d.), have broken the assize of beer. also that henry of senholt, henry brown, hugh hayward, richard moor, juliana woodward, alice harding, peronel street, eleanor mead make default. also that walter ash (fine,--), john wiking (fine,--), john smart (fine,--), and henry coterel have married themselves without the lord's licence; therefore let them be distrained to do the will of the lord. 43. alan reaper for the trespass of his foal; fine, 6d. 44. philip chapman in mercy for refusing his gage to the lord's bailiff; fine, 3d. 45. william ash in mercy for trespass in the growing crop; fine, 6d. 46. john iremonger in mercy for contempt; fine, 6d. 47. the chief pledges present that william of ripley (fine, 6d.), walter smith (no goods), maud of pasmere (fine, 6d.), have received [strangers] contrary to the assize; therefore they are in mercy. 48. maud widow of reginald of challow has sufficiently proved that a certain sheep valued at 8d. is hers, and binds herself to restore it or its price in case it shall be demanded from her within year and day; pledges, john iremonger and john robertd; and she gives the lord 3d. for [his] custody [of it]. the court of hustings in london is empowered to award landlords their tenements for which rent or services are in arrears if the landlord could not distrain enough tenant possessions to cover the arrearages. wills are proven in the court of husting, the oldest court in london, which went back to the times of edward the confessor. one such proven will is: "tour (john de la) to robert his eldest son his capital messuage and wharf in the parish of berchingechurch near the land called 'berewardesland`. to agnes his wife his house called 'wyvelattestone', together with rents, reversions, etc. in the parish of s. dunstan towards the tower, for life; remainder to stephen his son. to peter and edmund his sons lands and rents in the parish of all hallows de berhyngechurch; remainders over in default of heirs. to agnes, wife of john le keu, fishmonger, a house situate in the same parish of berhyng, at a peppercorn [nominal] rent." the court of the mayor of london heard diverse cases, including disputes over goods, faulty or substandard goods, adulteration, selling food unfit for human consumption, enhancing the price of goods, using unlawful weighing beams, debts, theft, distraints, forgery, tavern brawling, bullying, and gambling. insulting or assaulting a city dignitary was a very serious crime; an attack on the mayor was once capitally punished. sacrilege, rape, and burglary were punished by death. apart from the death penalty, the punishment meted out the most was public exposure in the pillory, with some mark of ignominy slung round the neck. if the crime was selling bad food, it was burnt under the offender's nose. if it was sour wine, the offender was drenched in it. standing in the pillory for even one hour was very humiliating, and by the end of the day, it was known throughout the city. the offender's reputation was ruined. some men died in the pillory of shame and distress. a variation of the pillory was being dragged through the streets on a hurdle. prostitutes were carted through the streets in coarse rough cloth hoods, with penitential crosses in their hands. scolds were exposed in a "thewe" for women. in more serious cases, imprisonment for up to a year was added to the pillory. mutilation was rare, but there are cases of men losing their right hands for rescuing prisoners. the death penalty was usually by hanging. the following four london cases pertain to customs, bad grain, surgery, and apprenticeship, respectively. "john le paumer was summoned to answer richer de refham, sheriff, in a plea that, whereas the defendant and his society of bermen [carriers] in the city were sworn not to carry any wine, by land or water, for the use of citizens or others, without the sheriff's mark, nor lead nor cause it to be led, whereby the sheriff might be defrauded of his customs, nevertheless he caused four casks of wine belonging to ralph le mazun of westminster to be carried from the city of westminster without the sheriff's mark, thus defrauding the latter of his customs in contempt of the king etc. the defendant acknowledged the trespass. judgment that he remain in the custody of the sheriff till he satisfy the king and the court for offense." "walter atte belhaus, william atte belhous, robert le barber dwelling at ewelleshalle, john de lewes, gilbert le gras, john his son, roger le mortimer, william ballard atte hole, peter de sheperton, john brun and the wife of thomas the pelterer, stephen de haddeham, william de goryngg, margery de frydaiestrate, mariot, who dwells in the house of william de harwe, and william de hendone were attached to answer for forestalling all kinds of grain and exposing it, together with putrid grain, on the pavement, for sale by the bushel, through their men and women servants; and for buying their own grain from their own servants in deception of the people. the defendants denied that they were guilty and put themselves on their country. a jury of richard de hockeleye and others brought in a verdict of guilty, and the defendants were committed to prison till the next parliament." "peter the surgeon acknowledged himself bound to ralph de mortimer, by richard atte hill his attorney, in the sum of 20s., payable at certain terms, the said ralph undertaking to give peter a letter of acquittance [release from a debt]. this recognizance arose out of a covenant between them with regard to the effecting of a cure. both were amerced for coming to an agreement out of court. a precept was issued to summon all the surgeons of the city for friday, that an inquiry might be made as to whether the above peter was fitted to enjoy the profession of a surgeon." "thomas de kydemenstre, shoemaker, was summoned to answer william de beverlee, because he did not clothe, feed and instruct his apprentice thomas, william's son, but drove him away. the defendant said that the apprentice lent his master's goods to others and promised to restore them or their value, but went away against his wish; and he demanded a jury. subsequently, a jury of william de upton and others said the apprentice lent two pairs of shoes belonging to his master and was told to restore them, but, frightened by the beating which he received, ran away; further that the master did not feed and clothe his apprentice as he ought, being unable to do so, to the apprentice's damage 40d., but that he was now in a position to look after his apprentice. thereupon thomas de kydemenstre said he was willing to have the apprentice back and provide for him, and the father agreed. judgment that the master take back the apprentice and feed and instruct him, or that he repay to the father, the money paid to the latter, and that he pay the father the 40d. and be in mercy." a professional class of temporal attorneys whose business it is to appear on behalf of litigants is prominent in the nation. attorneys are now drawn from the knightly class of landed gentlemen, instead of ecclesiastical orders. since it was forbidden for ecclesiastics to act as advocates in the secular courts, those who left the clergy to become advocates adopted a close-fitting cap to hide their tonsures, which came to be called a "coif". the great litigation of the nation is conducted by a small group of men, as is indicated by the earliest year books of case decisions. they sit in court and will sometimes intervene as amicus curiae [friends of the court]. parliament refers difficult points of law to them as well as to the justices. these reports became so authoritative that they could be cited in the courts as precedent. groups of attorneys from the countryside who are appearing in london courts during term-time and living in temporary lodgings start to form guild-like fellowships and buy property where they dine and reside together, called the inns of court. they begin to think of themselves as belonging to a profession, with a feeling of responsibility for training the novices who sat in court to learn court procedures and attorney techniques. they invited these students to supper at the inns of court for the purpose of arguing about the day's cases. the inns of court evolved a scheme of legal education, which was oral and used disputations. thus they became educational institutions as well as clubs for practicing attorneys. the call to the bar of an inn was in effect a degree. to be an attorney one had to be educated and certified at the inns of court. they practice law full time. some are employed by the king. justices come to be recruited from among those who had passed their lives practicing law in court, instead of from the ecclesiastical orders. all attorneys were brought under the control of the justices. there are two types of attorney: one attorney appears in the place of his principal, who does not appear. the appointment of this attorney is an unusual and a solemn thing, only to be allowed on special grounds and with the proper formalities. for instance, a poor person may not be able to afford to travel to attend the royal court in person. the other one is the pleader-attorney, who accompanies his client to court and advocates his position with his knowledge of the law and his persuasiveness. in 1280, the city of london made regulations for the admission of both types of attorneys to practice before the civic courts, and for their due control. in 1292 the king directed the justices to provide a certain number of attorneys and apprentices to follow the court, who should have the exclusive right of practicing before it. this begins the process which will make the attorney for legal business an "officer of the court" which has appointed him. chapter 9 the times: 1348-1399 waves of the black death, named for the black spots on the body, swept over the nation. the black blotches were caused by extensive internal bleeding. the plague was carried in the blood of black rats and transmitted to humans by the bite of the rat flea, but this cause was then unknown. the first wave of this plague, in 1348, lasted for three years and desolated the nation by about one half the population in the towns and one third in the country. people tried to avoid the plague by flight. the agony and death of so many good people caused some to question their belief in god. also, it was hard to understand why priests who fled were less likely to die than priests who stayed with the dying to give them the last rites. legal and judicial, as well as other public business weere interrupted by theplague and ceased for two years. thus begins a long period of disorganization, unrest, and social instability. customary ways were so upset that authority and tradition were no longer automatically accepted. fields lay waste and sheep and cattle wandered over the countryside. local courts could seldom be held. some monasteries in need of cash sold annuities to be paid in the form of food, drink, clothing, and lodging during the annuitant's life, and sometimes that of his widow also. guilds and rich men made contributions to the poor and ships with provisions were sent to various parts of the country for the relief of starving people. in london, many tradesmen and artisans formed parish fraternities which united people of all social levels and women on almost equal terms with men, in communal devotion and mutual support, such as help in resolving disputes, moral guidance, money when needed, and burial and masses. farm workers were so rare that they were able to demand wages at double or triple the pre-plague rate. the pre-plague had been 4-6d. daily for masons, carpenters, plasterers, and tilers and 3d. for their laborers. these laborers could buy 12 cheap loaves, 3 gallons of ale, and a gallon of cheap wine or half a pair of shoes. prices did not go up nearly as much as wages. villeins relinquished their tenements, and deserted their manors, to get better wages elsewhere. they became nomadic, roaming from place to place, seeking day work for good wages where they could get it, and resorting to thievery on the highways or beggary where they could not. the robin hood legends were popular among them. in them, robin hood is pure outlaw and does not contribute money to the poor. nor does he court maid marion. villeins spread political songs among each other, such as: "to seek silver to the king, i my seed sold; wherefore my land lieth fallow and learneth to sleep. since they fetched my fair cattle in my fold; when i think of my old wealth, well nigh i weep. thus breedeth many beggars bold; and there wakeneth in the world dismay and woe, for as good is death anon as so for to toil." groups of armed men took lands, manors, goods, and women by force. the villeins agreed to assist each other in resisting by force their lords' efforts to return them to servitude. a statute of laborers passed in 1351 for wages to be set at the pre-plague rates was ineffectual. justices became afraid to administer the law. villeins, free peasants, and craftsmen joined together and learned to use the tactics of association and strikes against their employers. the office of justice of the peace was created for every county to deal with rioting and vagrants. cooperation by officials of other counties was mandated to deal with fugitives from its justice. the black death visited again in 1361 and in 1369. the black death reduced the population from about 5 million to about 2 1/2 million. it was to rise to about 4 million by 1600. when there were attempts to enforce the legal servitude of the villeins, they spread rhymes of their condition and need to revolt. a secret league, called the "great society" linked the centers of intrigue. a high poll tax, graduated from 20s. to 12d., that was to be raised for a war with france, touched off a spontaneous riot all over the nation in 1381. this tax included people not taxed before, such as laborers, the village smith, and the village tiler. each area had its own specific grievances. there was no common political motive, except maladministration in general. in this peasants' revolt, mobs overran the counties around london. the upper classes fled to the woods. written records of the servitude of villeins were burned in their halls, which were also looted. title deeds of landlords were burned. rate rolls of general taxation were destroyed. prisoners were released from gaols. men connected with tax collection, law enforcement, attorneys, and alien merchants were beheaded. the chief justice was murdered while fleeing. the archbishop, who was a notoriously exploitive landlord, the chancellor, and the treasurer were murdered. severed heads were posted on london bridge. a mob took control of the king's empty bedchamber in the tower. the villeins demanded that service to a lord be by agreement instead of by servitude, a commutation of villein service for rents of a maximum of 4d. per acre yearly, abolition of a lord's right for their work on demand (e.g. just before a hail storm so only his crops were saved), and the right to hunt and fish. the sokemen protested having to use the lord's mill and having to attend his court. the revolt was suppressed and its leaders punished. the king issued proclamations forbidding unauthorized gatherings and ordering tenants of land to perform their customary services. the poll tax was dropped. for the future, the duty to deal with rioting and vagrants was given to royal justices, sheriffs, mayors, bailiffs, and constables as well as the justices of the peace. there was a high justice of the peace in each hundred and a petty constable in each parish. justices of the peace could swear in neighbors as unpaid special constables when disorder broke out. the sheriff was responsible for seeing that men of the lower classes were organized into groups of ten for police and surety purposes, and for holding of hundred and county courts, arresting suspects, guarding prisoners awaiting trial, carrying out the penalties adjudged by the courts, and collecting crown revenue through his bailiffs. royal writs were addressed to the sheriff. because many sheriffs had taken fines and ransoms for their own use, a term limit of one year was imposed. sheriffs, hundreders, and bailiffs had to have lands in the same counties or bailiwicks [so they could be held answerable to the king]. efforts were made to keep laborers at the plough and cart rather than learn a craft or entering and being educated by the church. the new colleges at the universities ceased to accept villeins as students. due to the shortage of labor, landlords' returns had decreased from about 20% to about 5%. but some found new methods of using land that were more profitable than the customary services of villeins who had holdings of land or the paid labor of practically free men who paid a money rent for land holdings. one method was to turn the land to sheep breeding. others leased their demesne land, which transferred the burden of getting laborers from the landlord to the lessee-tenant. the payment was called a "farm" and the tenant a "farmer". first, there were stock-and-land leases, in which both the land and everything required to cultivate it were let together. after 50 years, when the farmers had acquired assets, there were pure land leases. landlords preferred to lease their land at will instead of for a term of years to prevent the tenant from depleting the soil with a few richer crops during the last years of his tenancy. the commutation of labor services into a money payment developed into a general commutation of virtually all services. lords in need of money gladly sold manumissions to their villeins. the lord and lady of some manors now ate with their family and entertained guests in a private parlor [from french word 'to speak"] or great chamber, where they could converse and which had its own fireplace. the great chamber was usually at the fireplace end of the great hall, where there was a high table. the great hall had been too noisy for conversation and now was little used. there were also separate chambers or bed-sitting rooms for guests or members the family or household, in which one slept, received visitors, played games, and occasionally ate. some farmers achieved enough wealth to employ others as laborers on their farms. the laborers lived with their employer in his barn, sleeping on hay in the loft, or in mud huts outside the barn. the farmer's family lived at one end of the barn around an open fire. their possessions typically were: livestock, a chest, a trestle table, benches, stools, an iron or bronze cauldron and pots, brooms, wooden platters, wooden bowls, spoons, knives, wooden or leather jugs, a salt box, straw mattresses, wool blankets, linen towels, iron tools, and rush candles [used the pith of a rush reed for the wick]. those who could not afford rush candles could get a dim light by using a little grease in a shallow container, with a few twisted strands of linen thread afloat in it. the peasants ate dark bread and beans and drank water from springs. milk and cheese were a luxury for them. those who could not afford bread instead ate oat cakes made of pounded beans and bran, cheese, and cabbage. they also had leeks, onions, and peas as vegetables. some farmers could afford to have a wooden four-posted bedstead, hens, geese, pigs, a couple of cows, a couple of sheep, or two-plough oxen. july was the month when the divide between rich and poor became most apparent. the rich could survive on the contents of their barns, but the poor tried to survive by grinding up the coarsest of wheat bran and shriveled peas and beans to make some sort of bread. grain and bread prices soared during july. farming still occupied the vast majority of the population. town inhabitants and university students went into the fields to help with the harvest in the summer. parliament was suspended during the harvest. town people had more wealth than country people. most townspeople slept in nightgowns and nightcaps in beds with mattresses, blankets, linen sheets, and pillows. beds were made every morning. bathing was by sponging hot water from a basin over the body, sometimes with herbs in it, rinsing with a splash of warm water, and drying off with a towel. tubs used only for baths came into use. there were drapery rugs hung around beds, handheld mirrors of glass, and salt cellars. the first meal of the day was a light breakfast, which broke the fast that had lasted the night. meals were often prepared according to recipes from cook books which involved several preparation procedures using flour, eggs, sugar, cheese, and grated bread, rather than just simple seasoning. menus were put together with foods that tasted well together and served on plates in several courses. children's sweets included gingerbread and peppermint drops. sheffield cutlery was world famous. table manners included not making sounds when eating, not playing with one's spoon or knife, not placing one's elbows on the table, keeping one's mouth clean with a napkin, and not being boisterous. there were courtesies such as saying "good morning" when meeting someone and not pointing one's finger at another person. king richard ii invented the handkerchief for sneezing and blowing one's nose. there were books on etiquette. cats were the object of superstition, but there was an ancient and honorable order of the men who stroke cats. new burgesses were recruited locally, usually from within a 20 mile radius of town. most of the freemen of the larger boroughs, like canterbury and london, came from smaller boroughs. an incoming burgess was required to buy his right to trade either by way of a seven year apprenticeship or by payment of an entry fee. to qualify, he needed both a skill and social respectability. towns started acquiring from the king the right to vacant sites and other waste places, which previously was the lord's right. the perpetuality of towns was recognized by statutes of 1391, which compared town-held property to church-held property. the right of london to pass ordinances was confirmed by charter. some towns had a town clerk, who was chief of full-time salaried officers. there was a guildhall to maintain, a weigh-house, prison, and other public buildings, municipal water supplies, wharves, cranes, quays, wash-houses, and public lavatories. after the experience of the black death, some sanitary measures were taken. the notorious offenders in matters of public hygiene in the towns, such as the butchers, the fishmongers, and the leather tanners were assigned specific localities where their trades would do least harm. the smiths and potters were excluded from the more densely populated areas because they were fire risks. in the town of salisbury, there was butcher row, ox row, fish row, ironmongers' row, wheelwrights' row, smiths' row, pot row, silver street, cheese market, and wool market. for water, most communities depended on rivers that ran near by or on public wells that were dug to reach the water underground. some towns had water public water supply systems. fresh water was brought into the town from a spring or pond above the town by wood or lead pipes or open conduits. sometimes tree trunks were hollowed out and tapered at the ends to fit into the funnel-shaped end of another. but they leaked a lot. in london, a conduit piped water underground to a lead tank, from which it was delivered to the public by means of pipes and brass taps in the stone framework. this was london's chief water supply. water carriers carried water in wooden devices on their backs to houses. the paving and proper drainage of the streets became a town concern. building contracts began specifying the provision of adequate cesspits for the privies at town houses, whether the latrines were built into the house or as an outhouse. also, in the better houses, there grew a practice of carting human and animal fecal matter at night to dung heaps outside the city walls. there was one public latrine in each ward and about twelve dung carts for the whole city. country manor houses had latrines on the ground floor and/or the basement level. in london, the goldsmiths, merchant taylors [tailors], skinners, and girdlers bought royal charters, which recognized their power of self-government as a company and their power to enforce their standards, perhaps throughout the country. the goldsmiths, the mercers, and the saddlers became in 1394 the first guilds to receive charters of incorporation, which gave them perpetual existence. as such they could hold land in "mortmain" [dead hand], thus depriving the king of rights that came to him on the death of a tenant-in-chief. they were authorized to bestow livery on their members and were called livery companies. the liverymen [freemen] of the trading companies elected london's representatives to parliament. in all towns, the organization of craft associations spread rapidly downwards through the trades. these associations sought self-government. craft guilds were gaining much power relative to the old merchant guilds in governing the towns. the greater crafts such as the fishmongers, skinners, and the corders (made rope, canvas, and pitch) organized and ultimately were recognized by town authorities as self-governing craft guilds. the building trade guilds such as the tilers, carpenters, masons, and joiners, became important. masons were still itinerant, going to sites of churches, public buildings, or commanded by the king to work on castles. the guild was not necessarily associated with a specific product. for instance, a saddle and bridle were the result of work of four crafts: joiner (woodworker), painter, saddler (leather), and lorimer (metal trappings). in london in 1392 craft guilds included: baker, fishmonger (cut up and sold fish), fruitier, brewer, butcher, bird dealer, cook, apothecary (sold potions he had ground up), cutler (made knives and spoons), barber, tailor, shoemaker, glover (made gloves), skinner (sold furs), girdler (made girdles of cloth to wear around one's waist), pouchmaker, armorer, sheathmaker, weaver, fuller, painter, carpenter, joiner (woodworker who finished interior woodwork such as doors and made furniture), tiler, mason (cut stone for buildings), smith (made metal tools for stonemasons and builders), tallow chandler (made candles and sometimes soap from the fat and grease the housewife supplied), wax chandler (made candles), stirrup maker, spurrier (made spurs), and hosteler (innkeeper). however, the merchant guilds of the goldsmiths, vintners (sold wine), mercers (sold cloth), grocers, and drapers (finished and sold english cloth) were still strong. it was a long custom in london that freemen in one company could practice the trade of another company. there were paint mills and saw mills replacing human labor. there were apothecary shops and women surgeons. women who earned their own living by spinning were called "spinsters". some prices in london were: a hen pastry 5d., a capon pastry 8d., a roast pheasant 13d., a roast heron 18d., roast goose 7d., a hen 4d., a capon 6d., three roast thrushes 2d., ten larks 3d., ten finches 1d, and ten cooked eggs 1d. many of the guilds bought sites on which they built a chapel, which was later used as a secular meeting place. the guild officers commonly included an alderman, stewards, a dean, and a clerk, who were elected. the guild officers sat as a guild court to determine discipline for offenses such as false weights or measures or false workmanship or work and decided trade disputes. the brethren in guild fraternity were classified as masters, journeymen, or apprentices. they were expected to contribute to the support of the sick and impoverished in their fellowship. their code required social action such as ostracizing a man of the craft who was living in adultery until he mended his ways. the rules of the company of glovers were: 1. none but a freeman of the city shall make or sell gloves. 2. no glover may be admitted to the freedom of the city unless with the assent of the wardens of the trade. 3. no one shall entice away the servant of another. 4. if a servant in the trade makes away with his master's chattels to the value of 12d., the wardens shall make good the loss; and if the servant refuses to be judged by the wardens, he shall be taken before the mayor and aldermen. 5. no one may sell his goods by candlelight. 6. any false work found shall be taken before the mayor and aldermen by the wardens. 7. all things touching the trade within the city between those who are not freemen shall be forfeited. 8. journeymen shall be paid their present rate of wages. 9. persons who entice away journeymen glovers to make gloves in their own houses shall be brought before the mayor and aldermen. 10. any one of the trade who refuses to obey these regulations shall be brought before the mayor and aldermen. cordwainers [workers in soft cordovan leather from spain, especially shoes] of good repute petitioned the city of london in 1375 for ordinances on their trade as follows: "to the mayor and aldermen of the city of london pray the good folks of the trade of cordwainers of the same city, that it may please you to grant unto them the articles that follow, for the profit of the common people; that so, what is good and right may be done unto all manner of folks, for saving the honor of the city and lawfully governing the said trade. in the first place that if any one of the trade shall sell to any person shoes of bazen [sheepskin tanned in oak or larch-bark] as being cordwain, or of calf-leather for ox-leather, in deceit of the common people, and to the scandal of the trade, he shall pay to the chamber of the guildhall, the first time that he shall be convicted thereof, forty pence; the second time, 7s. half a mark; and the third time the same, and further, at the discretion of the mayor and aldermen. also that no one of the trade shall keep house within the franchise if he be not free [invested with the rights or privileges] of the city and one knowing his trade, and that no one shall be admitted to the freedom without the presence of the wardens of the trade bearing witness to his standing, on the pain aforesaid. also if any one of the trade shall be found offending touching the trade, or rebellious against the wardens thereof, such person shall not make complaint to any one of another trade, by reason of the discord or dissension that may have arisen between them; but he shall be ruled by the good folks of his own trade. and if he shall differ from them as acting against right, then let the offense be adjudged upon before the mayor and aldermen; and if he be found rebellious against the ordinance, let him pay to the chamber the sum above mentioned. also that no one of the trade shall entice or purloin the servant of another from the service of his master by paying him more than is ordained by the trade, on the pain aforesaid. also that no one shall carry out of his house any wares connected with his trade for sale in market or elsewhere except only at a certain place situated between soperesland and the conduit; and that at a certain time of the day, that is to say, between prime [the first hour of the day] and noon. and that no shoes shall exceed the measure of seven inches, so that the wares may be surveyed by the good folks of the trade, because of the deceit upon the common people that might ensue and the scandal of the trade, on the pain aforesaid. also that no one shall expose his wares openly for sale in market on sundays at any place, but only within his own dwelling to serve the common people, on the pain aforesaid. also that if any one sells old shoes, he shall not mix new shoes among the old in deceit of the common people and to the scandal of the trade, on the pain aforesaid." smithfield was a field outside the city gates at which horses were sold and raced. in 1372, the horse dealers and drovers petitioned for a tax on animals sold there to pay for cleaning the field. the city ordinance reads as follows: "on wednesday next after the feast of st. margaret the virgin came reputable men, the horse dealers and drovers, and delivered unto the mayor and aldermen a certain petition in these words: 'to the mayor, recorder, and aldermen show the dealers of smithfield, that is to say, the coursers and drovers, that for the amendment of the said field they have granted and assented among them that for the term of three years next ensuing after the date of this petition for every horse sold in the said field there shall be paid one penny, for every ox and cow one halfpenny, for every eight sheep one penny, and for every swine one penny by the seller and the same by the purchaser who buys the same for resale.` afterwards, on the eleventh day of august in the same year, adam fernham, keeper of the gaol at newgate, hugh, averelle, bailiff of smithfield, and william godhewe, weaver, were chosen and sworn faithfully to collect and receive the said pennies in form aforesaid and to clean the field of smithfield from time to time during such term of three years when necessary." many london houses were being made from stone and timber and even brick and timber, instead of just timber and mud. however, chimneys were still a luxury of the rich. they were made of stone, tile, or plaster. there were windows of glass and a guild of glaziers was chartered by the king. a typical merchant's house had a cellar; a ground floor with a shop and storage space; a first floor with a parlor to receive guests, a spacious hall for dining, and perhaps a kitchen; and at the top, a large family bedroom and a servant's room. stairwells between floors had narrow and winding steps. many single-roomed houses added a second-floor room for sleeping, which was approached by a wooden or stone staircase from the outside. their goods were displayed on a booth outside the door of the house or hung in the windows. they were stored at night in the cellar. over the booths swung huge signs, which had to be nine feet above street level to allow a man on horseback to ride underneath. there were no sidewalks. street repair work for wages was supervised by a stone master. the streets sloped down from the middle so that the filth of the streets would run down the sides of the road. there were many wood chips in the streets due to cutting up of firewood before taking it indoors. people often threw the rubbish from their houses onto the street although they were supposed to cart it outside the city walls and to clean the frontage of their houses once a week. dustmen scavenged through the rubbish on the streets. pigs and geese were no longer allowed to run at large in the streets, but had to be fed at home. there were other city rules on building, public order, the use of fountains, precautions against fire, trading rights in various districts, closing time of taverns, and when refuse could be thrown into the streets, e.g. nighttime. aldermen were constantly making rounds to test measures and weights, wine cups, the height of tavern signs, and the mesh of the fishing nets, which had to be at least two inches wide. they saw that the taverns were shut when curfew was rung and arrested anyone on the street after curfew who had a weapon, for no one with a sword was allowed on the streets unless he was some great lord or other substantial person of good reputation. wards provided citizens to guard the gates in their respective neighborhood and keep its key. the city was so dense that nuisance was a common action brought in court, for instance, vegetable vendors near a church obstructing passageway on the street or plumbers melting their solder with a lower than usual shaft of the furnace so smoke was inhaled by people nearby. crime in london was rare. murder, burglary, highway robbery, and gross theft were punishable by hanging. forgery and fraud, were punishable by the placement in the pillory or stocks or by imprisonment. perjury was punished by confession from a high stool for the first offense, and the pillory for the second. slander and telling lies were punished by the pillory and wearing a whetstone around one's neck. there was an ordinance passed against prostitutes in 1351. london as well as other port towns had not only prostitutes, but syphilis. prominent londoners sought to elevate their social position by having their family marry into rural landholding families of position. for poor boys with talent, the main routes for advancement were the church, the law, and positions in great households. many master freemasons, who carved freestone or finely grained sandstone and limestone artistically with mallet and chisel, left the country for better wages after their wages were fixed by statute. the curvilinear gothic style of architecture was replaced by the perpendicular style, which was simpler and cheaper to build. church steeples now had clocks on them with dials and hands to supplement the church bell ringing on the hour. alabaster was often used for sepulchral monuments instead of metal or stone. with it, closer portraiture could be achieved. in the 1300s and 1400s the london population suffered from tuberculosis, typhus, influenza, leprosy, dysentery, smallpox, diphtheria, measles, heart disease, fevers, coughs, cramps, catarrhs and cataracts, scabs, boils, tumors, and "burning agues". there were also many deaths by fires, burning by candles near straw beds when drunk, falling downstairs when drunk, and drowning in the river or wells. children were often crushed by carts, trampled by horses, or mauled by pigs. towns recognized surgery as a livelihood subject to admission and oath to serve the social good. master surgeons were admitted to practice in 1369 in london in full husting before the mayor and the aldermen and swore to: [1] faithfully serve the people in undertaking their cures, [2] take reasonably from them, [3] faithfully follow their calling, [4] present to the said mayor and aldermen the defaults of others undertaking, so often as should be necessary, [5] to be ready, at all times when they should be warned, to attend the maimed or wounded and others, [6] to give truthful information to the officers of the city as to such maimed, wounded, or others whether they be in peril of death or not, and [7] to faithfully do all other things touching their calling. some young girls of good families were boarded at nunneries to be taught there. some upper class widows retired there. only women were allowed to be present at a birth, at which they spread the knowledge of midwifery. as usual, many women died giving birth. various ways to prevent pregnancy were tried. it was believed that a baby grew from a seed of the father planted in the woman's body. infant mortality was especially high in boroughs and burgess family lines usually died out. a three-generation family span was exceptional in the towns, despite family wealth. after the plague, gentlemen no longer had their children learn to speak norman. the grammar schools taught in english instead of norman as of 1362. bishops began to preach in english. english became the official language of parliament, in 1363, and in the courts, replacing norman and latin. the requirements of elementary and higher studies were adjusted in 1393 and began the public school system. william of wykeham's school, st. mary college of winchester in oxford was the prototype. the curriculum was civil law, canon law, medicine, with astronomical instruments that students made, theology, and the arts. the arts textbooks were still grammar, logic, donatus, and aristotle. many laymen were literate, for instance country gentry, merchants, and craftsmen. laymen instead of clerics were now appointed to the great offices of state. a will in 1389 in which a wealthy citizen arranges for one son to become an attorney and the other a merchant: "will of william de tonge, citizen of london: one hundred marks [1,333s.] each to my two sons. and i will that my said two sons shall live upon the profits of the money bequeathed to them above until the age of twenty years. and if my said two sons be well learned in grammar and adorned with good manners, which shall be known at the end of twenty years, and the elder son wish to practice common law, and if it is known that he would spend his time well in that faculty, i will that over and above the profit of the said one hundred marks he shall have yearly from my rents for the term of seven years five marks [67s.]. and if he should waste his time aforesaid, or if he should marry foolishly and unsuitably, i will that he receive nothing more of the said five marks. and if younger son wishes to attend the university of oxford or to establish himself well in the mystery of a merchant after the age of twenty years, and [if] there be knowledge of his praiseworthy progress in his faculty or his carefulness in trading ... i will that he shall receive five marks yearly in the manner described above for his maintenance, over and above the profit of the said one hundred marks to him bequeathed, for the space of seven years; and if he behave himself otherwise, i will that thereupon he be excluded from the said five marks. and in case the said bequest of 200 marks [2,667s.] to him and his brother shall be annulled so that he shall have nothing therefrom ... then the said 200 marks shall be spent upon all the yearly chaplains who can be had to celebrate divine service in the church of all hallows for my soul." most great lords were literate. many stories described good men, who set an example to be followed, and bad men, whose habits were to be avoided. stories were written about pilgrimage vacations of ordinary people to religious sites in england. will langland's poem "the vision of william concerning piers plowman" portrays a pilgrimage of common people to the shrine of truth led by a virtuous laborer. mystics wrote practical advice with transcendental teaching, for instance "scale of perfection" attributed to walter hilton and "cloud of unknowing". richard rolle wrote about spiritual matters, probably the "prick of conscience". richard de bury wrote "philobiblon" about book lovers. jean froissart wrote the "chronicles" on knights. courtly ideals were expressed in "sir gawaine and the grene knyght", wherein the adventures of the hero, an arthur knight, are allegorical in the struggle against the world, the flesh, and the devil (1370). "pearl" eulogized all that is pure and innocent on the event of the death of a two year old child. marco polo's book of discoveries on his journey to china was known. geoffrey chaucer was a squire and diplomat of the king. his "tales of the canterbury pilgrims" portrayed characters of every social class, including the knight with his squire, abbot, prioress, nun, priest, monk, friar, poor parson of the country, summoner (who enforced the jurisdiction and levied the dues of the church courts), pardoner (sold pardons from the pope), scholar, attorney, doctor, merchant, sailor, franklin, yeoman, haberdasher, tapestrymaker, ploughman, cook, weaver, dyer, upholsterer, miller, reeve, carpenter. there were chaucer stories about a beautiful and virtuous wife disliked by her mother-in-law, the difficulty of marriage between people of different religions, the hatred of a poor person by his brother and his neighbor, rich merchants who visited other kingdoms, the importance of a man himself following the rules he sets for other people's behavior, the spite of a man for a woman who rejected him, the relative lack of enthusiasm of a wife for sex as compared to her husband, a mother giving up her own comfort for that of her child, the revenge killing of a murderer by the dead man's friends, the joy of seeing a loved one after years of separation, that life is more sad than happy, that lost money can be retrieved, but time lost is lost forever. other stories in the canterbury tales were about two men who did not remain friends after they fell in love with the same woman, about a child who preferred to learn from an older child than from his schoolteacher, about a wife who convinced her husband not to avenge her beating for the sake of peace, about a man who woke up from bad dreams full of fear, about a man wanting to marry a beautiful woman but later realizing a plain wife would not be pursued by other men, about a man who drank so much wine that he lost his mental and physical powers, about a woman who married for money instead of love, about a man who said something in frustration which he didn't mean, about a person brought up in poverty who endured adversity better than one brought up in wealth, about a wife who was loving and wise, about a good marriage being more valuable than money, about a virgin who committed suicide rather than be raped, about a wife persuaded to adultery by a man who said he would otherwise kill himself, about three men who found a pile of gold and murdered each other to take it all, about an angry man who wanted to kill, about a malicious man who had joy in seeing other men in trouble and misfortune, about a man whose face turned red in shame, about a wife expecting to have half of what her husband owned. political songs and poems were written about the evil times of king edward ii, the military triumphs of king edward iii, and the complaints of the poor against their oppressors, such as "song of the husbandman". john gower wrote moralizing poems on the villein's revolt, the sins of the clergy and attorneys, and the bad rule of king richard ii, who in 1377 succeeded edward iii. robin hood ballads were popular. the minstrel, who was a honorable person, replaced the troubadour of older times. there were many colleges at oxford and cambridge due to the prohibition of gifts to the church. laymen instead of ecclesiastics were appointed as chancellor. the masters at oxford got rid of ecclesiastical supervision by a bishop and archdeacon by 1368. one could be admitted as a student at age thirteen. the rate of maintenance for a student was 10d. weekly. a bachelor of arts degree was granted after four years of study and an oral exam. required reading in 1340 for the bachelor's degree was the new logic of aristotle ("prior and posterior analytics" e.g. on syllogistic logic and deduction, the "topics", or the "sophistical refutations", e.g. logical fallacies such as from 'all a are b' to 'all b are a'), and a selection from these aristotle works on physics: "of heaven and earth", "on the soul", "of meteors", "of birth and decay", or "of feeling and what is felt" with "of memory and recollection" and "of sleep and waking", or "of the movement of animals" with "of minor points in natural history". a master of arts degree could be awarded after three more years of study and teaching. a doctorate degrees in theology required ten more years of study. a doctorate in civil or canon law required eight more years. a man with a degree in canon law who wanted to practice in a certain bishop's court had to first satisfy this bishop of his competence. another source of legal learning was in london, where the guilds gave rise to the inns of court. they used the register of writs, the case law of the year books, and disputation to teach their students. for a doctorate in medicine from oxford or cambridge, five more years plus two years of practice were required. surgery was not taught because it was considered manual labor, and there was some feeling that it was a sacrilege and dishonorable. urinalysis and pulse beat were used for diagnosis. epilepsy and apoplexy were understood as spasms inside the head. it was known what substances served as laxatives and diuretics. teeth were extracted, eye cataracts were removed with a silver needle, and skin from the arm was grafted onto a mutilated face. englishmen who had collected books on philosophy, medicine, astronomy, and history and literature books from the continent gave their collections to the universities, which started their libraries. paper supplemented parchment, so there were more books. england was still an agricultural rather than a manufacturing country. imported were cloth, silks, linen, velvets, furs, glass, wines, candles, millstones, amber, iron, and mercury. exported were wool, leather, lead, tin, and alabaster for sculpturing. merchant adventurers came to manufacture cloth good enough for export and began to buy up raw wool in such quantity that its export declined. they took their cloth abroad to sell, personally or by agents. an oxford theologian and preacher, john wyclif, voiced the popular resentment of the materialism of the church, benefit of clergy, immorality of priests, and the selling of indulgences and pardons. encouraged by the king, he argued against the supremacy of the papal law over the king's courts and against payments to the papacy. he opined that the church had no power to excommunicate. the friars had become mere beggars and the church was still wealthy. he proposed that all goods should be held in common by the righteous and that the church should hold no property but be entirely spiritual. he believed that people should rely on their individual consciences. he thought that the bible should be available to people who could read english so that the people could have a direct access to god without priests or the pope. towards this end, he translated it from latin into english in 1384. his preachers spread his views throughout the country. the church then possessed about one-third of the land of the nation. parliament met about twice a year and lasted from two weeks to several months. there was a well-defined group of about fifty barons and a few spiritual peers who were always summoned to parliament and who composed a house of lords. "peer" now meant a member of the house of lords. all peers had the right to approach the king with advice. the baron peers reasoned that the custom of regular attendance was a right that should be inherited by the eldest son, or by a female heir, if there were no male heirs. however, the theory of nobility by blood as conveying political privilege had no legal recognition. no female could attend parliament; the husband of a baroness attended parliament in her stead. edward iii and richard ii created new peers with various titles of dignity, such as duke and marquess, which were above barons and earls. the dukes and marquesses were identified with a territorial designation such as an english county or county town. whenever a parliament was assembled the commons were present. the commons was composed of representatives from 100 boroughs and 37 counties. each new parliament required an election of representatives. the members of the commons were generally the most prominent and powerful economic and political figures of the county and were repeatedly reelected. the electors were usually influenced by the sheriff or a powerful lord who suggested suitable men. the wealthy merchants typically represented the boroughs and paid much of the taxes. under edward iii, the commons took a leading part in the granting of taxes and the presentation of petitions and became a permanent and distinct body, the house of commons, with a spokesman or "speaker", chosen by the crown, and a clerk. the speaker came to be an intermediary between the commons and the king and between the commons and the lords. a clerk of parliament registered its acts and sat with the lords. a clerk of the crown superintended the issue of writs and the receipt of the returns and attested the signature of the king on statutes. it became a regular practice for the chancellor to open parliament with an opportunity to present petitions after his opening speech. the king then referred them to certain peers and justices, who decided to which court, or parliament, they should be sent. during the 1300s, the number of barons going to parliament gradually decreased. at the 1376 parliament, ("the good parliament") the commons, which formerly had only consented to taxes, took political action by complaining that the king's councilors had grown rich by war profiteering at the cost of impoverishing the nation and the people were too poor to endure any more taxation for the war and held a hearing on financial malfeasance and dishonesty of two ministers. the chamberlain had extorted enormous sums, had intercepted fines meant for the king's treasury, and had sold a castle to the enemy. the steward had bought debts of the king's. the house of lords, the high court of parliament, found the charges proved and dismissed them permanently from office. this established the constitutional means for impeachment and prosecution by the commons and removal by the house of lords of ministers. by this process, there could be no royal intimidation, as there could be in the ordinary courts. the commons demanded that its members be elected by county citizens rather than appointed by the sheriff. the roles of parliament and the king's council are starting to differentiate into legislative and executive, respectively. the legislative function is lawmaking, and the executive is regulation-making that refines and effectuates the laws of parliament. but the legislative, executive, and judicial authorities have not as yet become so completely separated that they cannot on occasion work together. sheriffs dealt directly with the king instead of through an earl. from 1150 to 1400, resistance was an ordinary remedy for political disagreements. if a popular leader raised his standard in a popular cause, an irregular army could be assembled in a day. (there was no regular army, since england was protected by the sea from invasion.) so misgovernment by a king would be quickly restrained. society recovered quickly from conflict and civil war because the national wealth consisted chiefly in flocks and herds and in the simple buildings inhabited by the people. in a week after armed resistance, the agricultural worker was driving his team. there was little furniture, stock of shops, manufactured goods, or machinery that could be destroyed. to support a war with france, the staple was reinstated by statute of 1353 after an experiment without it in which profits of a staple went to staples outside the nation. wool exports were inspected for quality and taxed through his officials only at the designated staple ports. these officials included collectors, controllers, searchers [inspectors], surveyors, clerks, weighers, and crane-keepers. wool, woolfells, leather, and lead sold for export had to go through the staple town. the penalty was forfeiture of lands, tenements, goods, and chattel. the mayor and constables of the staple were elected annually by the native and foreign merchants of the place. the mayor gave validity to contracts for a set fee, by seal of his office. he and the constables had jurisdiction over all persons and things touching the staple, which was regulated by the law merchant in all matters of contract, covenant, debt, and felonies against foreign merchants. a hue and cry was required to be raised and followed for anyone taking a cart of merchandise or slaying a merchant, denizen [resident alien] or alien, or the town would answer for the robbery and damage done. in 1363, calais, a continental town held by the english, became the staple town for lead, tin, cloth, and wool and was placed under a group of london capitalists: the merchants of the staple. all exports of these had to pass through calais, where customs tax was collected. the staple statute remained basically unchanged for the next 200 years. guns and cannon were common by 1372. in the 1300s and 1400s, the king relied on mercenaries hired directly or by contract with his great nobles for foreign wars. the king reimbursed the contractors with the profits of war, such as the ransoms paid by the families of rich prisoners. the fighting men supplemented their pay by plunder. featherbeds and blooded horses were favorite spoils of war brought back to england from the continent. as new techniques with footmen came into being, the footmen became the core of the army and the knightly abilities of the feudal tenants-in-chief became less valuable. many lords got men to fight with them by livery and maintenance employment agreements such as this one of 1374: "bordeaux, february 15. this indenture, made between our lord king john [of gaunt, of castile, etc.] of the one part and symkyn molyneux, esquire, of the other part, witnesses that the said symkyn is retained and will remain with our said lord for peace and for war for the term of his life, as follows: that is to say, the said symkyn shall be bound to serve our said lord as well in time of peace as of war in whatsoever parts it shall please our said lord, well and fitly arrayed. and he shall be boarded as well in time of peace as of war. and he shall take for his fees by the year, as well in time of peace as of war, ten marks sterling [133s.] from the issues of the duchy of lancaster by the hands of the receiver there who now is or shall be in time to come, at the terms of easter and michaelmas by even portions yearly for the whole of his life. and, moreover, our lord has granted to him by the year in time of war five marks sterling [67s.] by the hands of the treasurer of war for the time being. and his year of war shall begin the day when he shall move from his inn towards our said lord by letters which shall be sent to him thereof, and thenceforward he shall take wages coming and returning by reasonable daily [payments] and he shall have fitting freightage for him, his men, horses, and other harness within reason, and in respect of his war horses taken and lost in the service of our said lord, and also in respect to prisoners and other profits of war taken or gained by him or any of his men, the said our lord will do to him as to other squires of his rank." forecastles and stern castles on ships were lower and broader. underneath them were cabins. the english ship was still single masted with a single square sail. a fleet was formed with over 200 ships selected by the english admirals acting for the king at the ports. men were seized and pressed into service and criminals were pardoned from crimes to become sailors in the fleet, which was led by the king's ship. they used the superior longbow against the french sailor's crossbow. in 1372, the tower of london had four mounted fortress cannon and the port of dover had six. the war's disruption of shipping caused trade to decline. but the better policing of the narrow seas made piracy almost disappear. english merchants may carry their merchandise in foreign ships if there are no english ships available. anyone may ship or carry grain out of the nation, except to enemies, after paying duties. but the council may restrain this passage when necessary for the good of the nation. any merchant, privy or stranger, who was robbed of goods on the sea or lost his ship by tempest or other misfortune on the sea banks, his goods coming to shore could not be declared wreck, but were to be delivered to the merchant after he proves ownership in court by his marks on the goods or by good and lawful merchants. all stakes and obstacles set up in rivers impeding the passage of boats shall be removed. waterpower was replacing foot power in driving the mills where cloth was cleaned and fulled. a boundary dispute between two barons resulted in the first true survey map. nine cow pastures were divided by a boundary marked by a shield on a pole which the commission of true and sworn men had set up. king richard ii, an irresponsible sovereign, asserted an absolute supremacy of the king over parliament and declared certain statutes which he claimed to have been forced on him to be revoked. he interfered with county elections of knights to parliament by directing sheriffs to return certain named persons. he wanted to dispense altogether with parliament and instead have a committee of representatives. he claimed that the goods of his subjects were his own and illegally taxed the counties. there were many disputes as to who should be his ministers. high treason was extended to include making a riot and rumor, compassing or purposing to depose the king, revoking one's homage or liege to the king, or attempting to repeal a statute. when henry bolingbroke reported to parliament that another lord had cast doubt on the king's trustworthiness, a duel between them was arranged. but richard, probably fearing the gain of power of the lord who won, instead exiled the two lords. he took possession of the lancaster estates to which bolingbroke was heir and forbade this inheritance. this made all propertied men anxious and they united behind bolingbroke in taking up arms against richard. richard was not a warrior king and offered to resign the crown. the "merciless parliament" of 1388 swept out richard's friends. parliament deposed and imprisoned richard. it revoked the extensions to the definition of high treason. it elected bolingbroke, who claimed to be a descendant of henry iii, to be king henry iv. this action established clearly that royal decrees were subordinate to parliamentary statutes, that parliament was the ultimate legal arbiter of the realm, and that the consent of parliament was necessary in determining kingship. the house of commons became very powerful. it was responsible for the major part of legislation. it's members began to assert the privilege of free speech. that is, they wanted to discuss other matters than what was on the king's agenda and they opposed punishment for what they said unless it was treasonable. henry iv agreed to their request not to consider reports of proceedings unless they came to him through official channels. the law high treason was defined by statute in 1352 as levying war against the king, aiding the king's enemies, compassing or imagining the death of the king, queen, or their eldest son and heir, or violating the queen or the eldest unmarried daughter or the wife of the king's eldest son and heir; making or knowingly using counterfeits of the king's great or privy seal or coinage; or slaying the chancellor, treasurer, or any justice in the exercise of their duty. the penalty was forfeit of life and lands. petit treason was defined by statute and included a servant slaying his master, a wife her husband, or a man his lord, to whom was owed faith and obedience. no one shall tell false news or lies about prelates, dukes, earls, barons, and other nobles and great men or the chancellor, treasurer, a justice, clerk of the privy seal, steward of the king's house whereby debates and discords might arise between these lords or between the lords and the commons. cases shall be tried by the king's council, which included the chancellor, treasurer, and chief justices. preachers drawing crowds by ingenious sermons and inciting them to riot shall be arrested by sheriffs and tried by the ecclesiastical court. any stranger passing at night of whom any have suspicion shall be arrested and taken to the sheriff. no man shall ride with a spear, upon pain of forfeiting it. no servant of agriculture or laborer shall carry any sword or dagger, or else forfeit it, except in time of war in defense of the nation. he may carry bow and arrow [for practice] on sundays and holy days, when he should not play games such as tennis, football, or dice. no one may enter another's land and tenements by strong hand nor with a mob, upon pain of imprisonment and ransom at the king's will. charters, releases, obligations, quitclaim deeds and other deeds burnt or destroyed in uprisings shall be reissued without fee, after trial by the king and his council. manumissions, obligations, releases and other bonds and feoffments in land made by force, coercion or duress during mob uprisings are void. men who rape and women consenting after a rape shall lose their inheritance and dower and joint feoffments. the husbands, or father or next of kin of such women may sue the rapist by inquisition, but not by trial by combat. the penalty is loss of life and member. the statute of laborers of 1351 required all workers, from tailors to ploughmen, to work only at pre-plague wage rates and forced the vagrant peasant to work for anyone who claimed him or her. it also encouraged longer terms of employment as in the past rather than for a day at a time. statutory price controls on food limited profits to reasonable ones according to the distance of the supply. later, wages were determined in each county by justices of the peace according to the dearth of victuals while allowing a victualer a reasonable profit and a penalty was specified as paying the value of the excess wages given or received for the first offense, double this for the second offense, and treble this or forty days imprisonment for the third offense. a fugitive laborer will be outlawed, and when found, shall be burnt in the forehead with the letter "f" for falsity. children who labored at the plough and cart or other agriculture shall continue in that labor and may not go into a craft. a statute of 1363 designed to stop hoarding various types of merchandise until a type became scarce so to sell it at high prices, required merchants to deal in only one type of merchandise. it also required craftsmen to work in only one craft as before (except women who traditionally did several types of handiwork). this was repealed a year later. where scarcity has made the price of poultry high, it shall be lowered to 8d. for a young capon, 7d. for an old capon or a goose, 9d. for a hen, and 10d. for a pullet. the fares for passage on boats on fresh waters and from dover to the continent shall remain at their old rate. any merchant selling at a fair after it has ended will forfeit to the king twice the value of that sold. anyone finding and proving cloth contrary to the assize of cloth shall have one-third of it for his labor. no shoemaker nor cordwainer shall tan their leather and no tanner shall make shoes, in order that tanning not be false or poorly done. all denizen [foreigner permitted to reside in the realm with certain rights and privileges] and alien merchants may buy and sell goods and merchandise, in gross, in any part of the country, despite town charters or franchises, to anyone except an enemy of the king. they may also sell small wares: victuals, fur, silk, coverchiefs [an item of woman's apparel], silver wire, and gold wire in retail, but not cloth or wine. they must sell their goods within three months of arrival. any alien bringing goods to the nation to sell must buy goods of the nation to the value of at least one-half that of his merchandise sold. these merchants must engage in no collusion to lower the price of merchandise bought, take merchandise bought to the staple, and promise to hold no staple beyond the sea for the same merchandise. an amendment disallowed denizens from taking wools, leather, woolfells, or lead for export, but only strangers. towns failing to bring disturbers of this right to justice shall forfeit their franchise to the king and pay double damages to the merchant. the disturber shall be imprisoned for a year. cloth may not be tacked nor folded for sale to merchants unless they are opened to the buyers for inspection, for instance for concealed inferior wool. workers, weavers, and fullers shall put their seals to every cloth. anyone may bring his own wools, woolfells, leather, and lead to the staple to sell without being compelled to sell them in the country. special streets or warehouses were appointed with warehouse rent fixed by the mayor and constables with four of the principal inhabitants. customs duties were regulated and machinery provided for their collection. no one may forestall or regrate, that is, buy at one price and sell at a higher price in the same locale. forestallers were those who bought raw material on its way to market. regrators were those who tried to create a "corner" in the article in the market itself. imported cloth shall be inspected by the king's officials for nonstandard measurements or defects [despite town franchises]. no one shall leave the nation except at designated ports, on pain of one year's imprisonment. social distinctions by attire were mandated by statute of 1363. a servant, his wife, son, or daughter, shall only wear cloth worth no more than 27s. and shall not have more than one dish of meat or fish a day. carters, ploughmen, drivers of the plough, oxherds, cowherds, shepherds, and all other people owning less than 40s. of goods and chattels shall only wear blanket and russet worth no more than 12d. and girdles of linen according to their estate. craftsmen and free peasants shall only wear cloth worth no more than 40s. esquires and gentlemen below the rank of knight with no land nor rent over 2,000s. a year shall only wear cloth worth no more than 60s., no gold, silver, stone, fur, or the color purple. esquires with land up to 2,667s. per year may wear 67s. cloth, cloth of silk and silver, miniver [grey squirrel] fur and stones, except stones on the head. merchants, citizens, burgesses, artificers, and people of handicraft having goods and chattels worth 10,000s. shall wear cloth the same value as that worn by esquires and gentlemen with land or rent within 2,000s. per year. the same merchants and burgesses with goods and chattels worth 13,333s. and esquires and gentlemen with land or rent within 400s. per year may not wear gold cloth, miniver fur, ermine [white] fur, or embroidered stones. a knight with land or rents within 2,667s. yearly are limited to cloth of 80s., but his wife may wear a stone on her head. knights and ladies with land or rents within 8,000s. to 20,000s. yearly may not wear fur of ermine or of letuse, but may wear gold, and such ladies may wear pearls as well as stones on their heads. the penalty is forfeiture of such apparel. this statute is necessary because of "outrageous and excessive apparel of diverse persons against their estate and degree, to the great destruction and impoverishment of all the land". if anyone finds a hawk [used to hunt birds, ducks, and pheasant] that a lord has lost, he must take it to the sheriff for keeping for the lord to claim. if there is no claim after four months, the finder may have it only if he is a gentleman. if one steals a hawk from a lord or conceals from him the fact that it has been found, he shall pay the price of the hawk and be imprisoned for two years. no laborer or any other man who does not have lands and tenements of the value of 40s. per year shall keep a greyhound or other hound or dog to hunt, nor shall they use nets or cords or other devices to take deer, hare, rabbits, nor other gentlemen's game, upon pain of one year imprisonment. (the rabbit had been introduced by the normans.) this 1390 law was primarily intended to stop the meetings of laborers and artificers. no man shall eat more than two courses of meat or fish in his house or elsewhere, except at festivals, when three are allowed [because great men ate costly meats to excess and the lesser people were thereby impoverished]. no one may export silver, whether bullion or coinage, or wine except foreign merchants may carry back the portion of their money not used to buy english commodities. the penalty for bringing false or counterfeit money into the nation is loss of life and member. an assigned searcher [inspector] for coinage of the nation on the sea passing out of the nation or bad money in the nation shall have one third of it. no foreign money may be used in the nation. each goldsmith shall have an identifying mark, which shall be placed on his vessel or work only after inspection by the king's surveyor. no one shall give anything to a beggar who is capable of working. vagrants begging in london were banned by this 1359 ordinance: "forasmuch as many men and women, and others, of divers counties, who might work, to the help of the common people, have betaken themselves from out of their own country to the city of london and do go about begging there so as to have their own ease and repose, not wishing to labor or work for their sustenance, to the great damage of the common people; and also do waste divers alms which would otherwise be given to many poor folks, such as lepers, blind, halt, and persons oppressed with old age and divers other maladies, to the destruction of the support of the same we do command on behalf of our lord the king, whom may god preserve and bless, that all those who go about begging in the said city and who are able to labor and work for the profit of the common people shall quit the said city between now and monday next ensuing. and if any such shall be found begging after the day aforesaid, the same shall be taken and put in the stocks on cornhill for half a day the first time, and the second time he shall remain in the stocks one whole day, and the third time he shall be taken and shall remain in prison for forty days and shall then forswear the said city forever. and every constable and the beadle of every ward of the said city shall be empowered to arrest such manner of folks and to put them in the stocks in manner aforesaid." the hundred year cry to "let the king live on his own" found fruition in a 1352 statute requiring consent of the parliament before any commission of array for militia could be taken and a 1362 statute requiring purchases of goods and means of conveyance for the king and his household to be made only by agreement with the seller and with payment to him before the king traveled on, instead of at the low prices determined unilaterally by the king's purveyor. every man who has wood within the forest may take houseboot [right to take wood for repair of one's house] and heyboot [right to take material for the maintenance of hedges and fences, and the making of farming utensils] in his wood without being arrested so long as it take such within the view of the foresters. no fecal matter, dung, garbage, or entrails of animals killed shall be put into ditches or rivers or other waters, so that maladies and diseases will not be caused by corrupted and infected air. the penalty is 400s. to the king after trial by the chancellor. gifts or alienation of land to guilds, fraternities, or towns are forbidden. instead, it escheats to its lord, or in his default, to the king. no man will be charged to go out of his county to do military service except in case of an enemy invasion of the nation. men who chose to go into the king's service outside the nation shall be paid wages by the king until their return. admiralty law came into being when ancient naval manners and customs were written down as the "black book of the admiralty". this included the organization of the fleet under the admiral, sea-maneuver rules such as not laying anchor until the admiral's ship had, engagement rules, and the distribution of captured goods: one-fourth to the vessel owner, one-fourth to the king if the seamen were paid by the king's wages, and the rest divided among the crew and admiral. stealing a boat or an anchor holding a boat was punishable by hanging. stealing an oar or an anchor was punishable by forty days imprisonment for the first offense, six months imprisonment for the second, and hanging for the third. desertion was punishable by loss of double the amount of wages earned and imprisonment for one year. cases were tried by jury in the admiral's court. wines, vinegar, oil and honey imported shall be gauged by the king's appointees. judicial procedure the office of justice of the peace was developed and filled by knights, esquires and gentlemen who were closely associated with the magnates. there was no salary nor any requirement of knowledge of the law. they were to pursue, restrain, arrest, imprison, try, and duly punish felons, trespassers, and rioters according to the law. they were expected to arrest vagrants who would not work and imprison them until sureties for good behavior was found for them. they also were empowered to inspect weights and measures. trespass included forcible offenses of breaking of a fence enclosing private property, assault and battery, false imprisonment, and taking away goods and chattels. the action of trespass was replacing private suits for murder and for personal injury. pardons may be given only for slaying another in one's own defense or by misfortune [accident], and not for slaying by lying in wait, assault, or malice aforethought. justices of assize, sheriffs, and justices of the peace and mayors shall have power to inquire of all vagabonds and compel them to find surety of their good bearing or be imprisoned. a reversioner shall be received in court to defend his right when a tenant for a term of life, tenant in dower, or by curtesy of the nation, or in [fee] tail after possibility of issue extinct are sued in court for the land, so as to prevent collusion by the demandants. a person in debt may not avoid his creditors by giving his tenements or chattels to his friends in collusion to have the profits at his will. where there was a garnishment given touching a plea of land, a writ of deceit is also maintainable. actions of debt will be heard only in the county where the contract was made. the action of debt includes enforcement of contracts executed or under seal, e.g. rent due on a lease, hire of an archer, contract of sale or repair of an item. thus there is a growing connection between the actions of debt and contract. executors have an action for trespass to their testators' goods and chattels in like manner as did the testator when alive. if a man dies intestate, his goods shall be administered by his next and most lawful friends appointed. such administrators shall have the same powers and duties as executors and be accountable as are executors to the ecclesiastical court. children born to english parents in parts beyond the sea may inherit from their ancestors in the same manner as those born in the nation. a person grieved by a false oath in a town court proceeding may appeal to the king's bench or common pleas, regardless of any town franchise. it was exceptional for the king to sit on the court of the king's bench, which worked independently of the king.and became confined to the established common law. decisions of the common law courts are appealable to the house of lords. the king's council members who are not peers, in particular the justices and the masters of the chancery, are summoned by the house of lords only as mere assistants. parliament may change the common law by statute. the right of a peer to be tried for capital crimes by a court composed of his peers was established. there was a widespread belief that all the peers are by right the king's councilors. no attorney may practice law and also be a justice of assize. no justice may take any gift except from the king nor give counsel to any litigant before him. in 1390, there was a statute against maintainers, instigators, barretors, procurers, and embracers of quarrels and inquests because of great and outrageous oppressions of parties in court. because this encouraged maintenance by the retinue of lords with fees, robes, and other liveries, such maintainers were to be put out of their lords' service, and could not be retained by another lord. no one was to give livery to anyone else, except household members and those retained for life for peace or for war. justices of the peace were authorized to inquire about yeomen, or other of lower estate than squire, bearing livery of any lord. whereas it is contained in the magna carta that none shall be imprisoned nor put out of his freehold, nor of his franchises nor free custom, unless it be by the law of the land; it is established that from henceforth none shall be taken by petition or suggestion made to the king unless by indictment of good and lawful people of the same neighborhood where such deeds be done, in due manner, or by process made by writ original at the common law; nor that none be out of his franchise, nor of his freeholds, unless he be duly brought into answer and before judges of the same by the course of law. the chancery came to have a separate and independent equitable jurisdiction. it heard petitions of misconduct of government officials or of powerful oppressors, fraud, accident, abuse of trust, wardship of infants, dower, and rent charges. because the common law and its procedures had become technical and rigid, the chancery was given equity jurisdiction by statute in 1285. king edward iii proclaimed that petitions for remedies that the common law didn't cover be addressed to the chancellor, who was not bound by established law, but could do equity. in chancery, if there is a case that is similar to a case for which there is a writ, but is not in technical conformity with the requirements of the common law for a remedy, then a new writ may be made for that case by the chancellor. these were called "actions on the case". also, parliament may create new remedies. there were so many cases that were similar to a case with no remedy specified in the common law, that litigants were flowing into the chancery. the chancellor gave swift and equitable relief, which was summary. with the backing of the council, the chancellor made decisions implementing the policy of the statute of laborers. most of these concerned occupational competency, for instance negligent activity of carriers, builders, shepherds, doctors, cloth workers, smiths, innkeepers, and gaolers. for instance, the common law action of detinue could force return of cloth bailed for fulling or sheep bailed for pasturing, but could not address damages due to faulty work. the chancellor addressed issues of loss of wool, dead lambs, and damaged sheep, as well as dead sheep. he imposed a legal duty on innkeepers to prevent injury or damage to a patron or his goods from third parties. a dog bite or other damage by a dog known by its owner to be vicious was made a more serious offense than general damage by any dog. a person starting a fire was given a duty to prevent the fire from damaging property of others. the king will fine instead of seize the land of his tenants who sell or alienate their land, such fine to be determined by the chancellor by due process. only barons who were peers of the house of lords were entitled to trial in the house of lords. in practice, however, this pertained only to major crimes. treason was tried by the lords in parliament, by bill of "attainder". it was often used for political purposes. most attainders were reversed as a term of peace made between competing factions. the king's coroner and a murderer who had taken sanctuary in a church often agreed to the penalty of confession and perpetual banishment from the nation as follows: "memorandum that on july 6, [1347], henry de roseye abjured the realm of england before john bernard, the king's coroner, at the church of tendale in the county of kent in form following: 'hear this, o lord the coroner, that i, henry de roseye, have stolen an ox and a cow of the widow of john welsshe of retherfeld; and i have stolen eighteen beasts from divers men in the said county. and i acknowledge that i have feloniously killed roger le swan in the town of strete in the hundred of strete in the rape [a division of a county] of lewes and that i am a felon of the lord king of england. and because i have committed many ill deeds and thefts in his land, i abjure the land of the lord edward king of england, and [i acknowledge] that i ought to hasten to the port of hastings, which thou hast given me, and that i ought not to depart from the way, and if i do so i am willing to be taken as a thief and felon of the lord king, and that at hastings i will diligently seek passage, and that i will not wait there save for the flood and one ebb if i can have passage; and if i cannot have passage within that period, i will go up to the knees into the sea every day, endeavoring to cross; and unless i can do so within forty days, i will return at once to the church, as a thief and a felon of the lord king, so help me god." property damage by a tenant of a london building was assessed in a 1374 case: "john parker, butcher, was summoned to answer clement spray in a plea of trespass, wherein the latter complained that the said john, who had hired a tavern at the corner of st. martinle-grand from him for fifteen months, had committed waste and damage therein, although by the custom of the city no tenant for a term of years was entitled to destroy any portion of the buildings or fixtures let to him. he alleged that the defendant had taken down the door post of the tavern and also of the shop, the boarded door of a partition of the tavern, a seat in the tavern, a plastered partition wall, the stone flooring in the chamber, the hearth of the kitchen, and the mantelpiece above it, a partition in the kitchen, two doors and other partitions, of a total value of 21s. four pounds, 1s. 8d., and to his damage, 400s. [20 pounds]. the defendant denied the trespass and put himself on the country. afterwards a jury [panel]... found the defendant guilty of the aforesaid trespass to the plaintiff's damage, 40d. judgment was given for that amount and a fine of 1s. to the king, which the defendant paid immediately in court." the innkeeper's duty to safeguard the person and property of his lodgers was applied in this case: "john trentedeus of southwark was summoned to answer william latymer touching a plea why, whereas according to the law and custom of the realm of england, innkeepers who keep a common inn are bound to keep safely by day and by night without reduction or loss men who are passing through the parts where such inns are and lodging their goods within those inns, so that, by default of the innkeepers or their servants, no damage should in any way happen to such their guests ... on monday after the feast of the purification of the virgin mary in the fourth year of the now king by default of the said john, certain malefactors took and carried away two small portable chests with 533s. and also with charters and writings, to wit two writings obligatory, in the one of which is contained that a certain robert bour is bound to the said william in 2,000s. and in the other that a certain john pusele is bound to the same william in 800s. 40 pounds ... and with other muniments [writings defending claims or rights] of the same william, to wit his return of all the writs of the lord king for the counties of somerset and dorset, whereof the same william was then sheriff, for the morrow of the purification of the blessed mary the virgin in the year aforesaid, as well before the same lord the king in his chancery and in his bench as before the justices of the king's common bench and his barons of his exchequer, returnable at westminster on the said morrow, and likewise the rolls of the court of cranestock for all the courts held there from the first year of the reign of the said lord the king until the said monday, contained in the same chests being lodged within the inn of the same john at southwark and the said john ... says that on the said monday about the second hour after noon the said william entered his inn to be lodged there, and at once when he entered, the same john assigned to the said william a certain chamber being in that inn, fitting for his rank, with a door and a lock affixed to the same door with sufficient nails, so that he should lie there and put and keep his things there, and delivered to the said william the key to the door of the said chamber, which chamber the said william accepted... william says that ... when the said john had delivered to him the said chamber and key as above, the same william, being occupied about divers businesses to be done in the city of london, went out from the said inn into the city to expedite the said businesses and handed over the key of the door to a certain servant of the said william to take care of in meantime, ordering the servant to remain in the inn meanwhile and to take care of his horses there; and afterwards, when night was falling, the same william being in the city and the key still in the keeping of the said servant, the wife of the said john called unto her into her hall the said servant who had the key, giving him food and drink with a merry countenance and asking him divers questions and occupying him thus for a long time, until the staple of the lock of the door aforesaid was thrust on one side out of its right place and the door of the chamber was thereby opened and his goods, being in the inn of the said john, were taken and carried off by the said malefactors ... the said john says ...[that his wife did not call the servant into the hall, but that] when the said servant came into the said hall and asked his wife for bread and ale and other necessaries to be brought to the said chamber of his master, his wife immediately and without delay delivered to the same servant the things for which he asked ... protesting that no goods of the same william in the said inn were carried away by the said john his servant or any strange malefactors other than the persons of the household of the said william." on the coram rege roll of 1395 is a case on the issue of whether a court crier can be seized by officers of a staple: "edmund hikelyng, 'crier', sues william baddele and wife maud, john olney, and william knyghtbrugge for assault and imprisonment at westminster, attacking him with a stick and imprisoning him for one hour on wednesday before st. martin, 19 richard ii. baddele says mark faire of winchester was prosecuting a bill of debt for 18s. against edmund and john more before william brampton, mayor of the staple of westminster, and thomas alby and william askham, constables of the said staple, and on that day the mayor and the constables issued a writ of capias against edmund and john to answer mark and be before the mayor and the constables at the next court. this writ was delivered to baddele as sergeant of the staple, and by virtue of it he took and imprisoned edmund in the staple. maud and the others say they aided baddele by virtue of the said writ. edmund does not acknowledge baddele to be sergeant of the staple or mark a merchant of the staple or that he was taken in the staple. he is minister of the king's court of his bench and is crier under thomas thorne, the chief crier, his master. every servant of the court is under special protection while doing his duty or on his way to do it. on the day in question, he was at westminster carrying his master's staff of office before hugh huls, one of the king's justices, and william took him in the presence of the said justice and imprisoned him. the case is adjourned for consideration from hilary to easter." a law of equity began to be developed from decisions by the chancellor in his court of conscience from around 1370. one such case was that of godwyne v. profyt sometime after 1393. this petition was made to the chancellor: to the most reverend father in god, and most gracious lord, the bishop of exeter, chancellor of england. thomas godwyne and joan his wife, late wife of peter at more of southwerk, most humbly beseech that, whereas at michaelmas in the 17th year of our most excellent lord king richard who now is, the said peter at more in his lifetime enfeoffed thomas profyt parson of st. george's church southwerk, richard saundre, and john denewey, in a tenement with the appurtenances situated in southwerk and 24 acres of land 6 acres of meadow in the said parish of st. george and in the parish of our lady of newington, on the conditions following, to wit, that the said three feoffees should, immediately after the death of the said peter, enfeoff the said joan in all the said lands and tenements with all their appurtenances for the life of the said joan, with remainder after her decease to one nicholas at more, brother of the said peter, to hold to him and the heirs of his body begotten, and for default of issue, then to be sold by four worthy people of the said parish, and the money to be received for the same to be given to holy church for his soul; whereupon the said peter died. and after his death two of the said feoffees, richard and john, by the procurement of one john solas, released all their estate in the said lands and tenements to the said thomas profyt, on the said conditions, out of the great trust that they had in the said thomas profyt, who was their confessor, that he would perform the will of the said peter [at more] in the form aforesaid; and this well and lawfully to do the said thomas profyt swore on his verbum dei and to perform the said conditions on all points. and since the release was so made, the said thomas profyt, through the scheming and false covin of the said john solas, has sold all the lands and tenements aforesaid to the same john solas for ever. and the said john solas is bound to the said thomas profyt in 100 pounds by a bond to make defense of the said lands and tenements by the bribery and maintenance against every one; and so by their false interpretation and conspiracy the said joan, nicholas, and holy church are like to be disinherited and put out of their estate and right, as is abovesaid, for ever, tortiously, against the said conditions, and contrary to the will of the said peter [at more]. may it please your most righteous lordship to command the said thomas profyt, richard saundre, and john denewy to come before you, and to examine them to tell the truth of all the said matter, so that the said joan, who has not the wherewithal to live, may have her right in the said lands and tenements, as by the examination before you, most gracious lord, shall be found and proved; for god and in way of holy charity. chapter 10 the times: 1399-1485 this period, which begins with the reign of the usurper king, henry iv, is dominated by war: the last half of the 100 year war with france, which, with the help of joan of arc, took all english land on the continent except the port of calais, and the war of the roses over the throne in england. the ongoing border fights with wales and scotland were fought by england's feudal army. but for fighting in france, the king paid barons and earls to raise their own fighting forces. when they returned to england, they fought to put their candidate on its throne, which had been unsteady since its usurpation by henry iv. all the great houses kept bands of armed retainers. these retainers were given land or pay or both as well as liveries [uniforms or badges] bearing the family crest. in the system of "livery and maintenance", if the retainer was harassed by the law or by enemies, the lord protected him. the liveries became the badges of the factions engaged in the war of the roses. the white rose was worn by the supporters of the house of york, and the red rose by supporters of the house of lancaster. great lords fought each other for property and made forcible entries usurping private property. nobles employed men who had returned from fighting in war to use their fighting skill in local defense.henry iv was the last true warrior king. in both wars, the musket was used as well as the longbow. to use it, powder was put into the barrel, then a ball rammed down the barrel with a rod, and then the powder lit by a hot rod held with one hand while the other hand was used to aim the musket. cannon were used to besiege castles and destroy their walls, so many castles were allowed to deteriorate. the existence of cannon also limited the usefulness of town walls for defense. but townspeople did not take part in the fighting. since the power of the throne changed from one faction to another, political and personal vindictiveness gave rise to many bills of attainder that resulted in lords being beheaded and losing their lands to the king. however, these were done by the form of law; there were no secret executions in england. families engaged in blood feuds. roving bands ravaged the country, plundering the people, holding the forests, and robbing collectors of crown revenue. some men made a living by fighting for others in quarrels. individual life and property were insecure. whole districts were in a permanent alarm of riot and robbery. the roads were not safe. there was fighting between lords and gangs of ruffians holding the roads, breaking into and seizing manor houses, and openly committing murders. peace was never well-kept nor was law ever well-executed, though fighting was suspended by agreement during the harvest. local administration was paralyzed by party faction or lodged in some great lord or some clique of courtiers. the elections of members to parliament was interfered with and parliament was rarely held. barons and earls fought their disputes in the field rather than in the royal courts. litigation was expensive, so men relied increasingly on the protection of the great men of their neighborhood and less on the king's courts for the safety of their lives and land. local men involved in court functions usually owed allegiance to a lord which compromised the exercise of justice. men serving in an assize often lied to please their lord instead of telling the truth. lords maintained, supported, or promoted litigation with money or aid supplied to one party to the detriment of justice. it was not unusual for lords to attend court with a great force of retainers behind them. many justices of the peace wore liveries of magnates and accepted money from them. royal justices were flouted or bribed. the king's writ was denied or perverted. for 6-8s., a lord could have the king instruct his sheriff to impanel a jury which would find in his favor. a statute against riots, forcible entries, and, excepting the king, magnates' liveries of uniform, food, and badges to their retainers, except in war outside the nation, was passed, but was difficult to enforce because the offenders were lords, who dominated the parliament and the council. with men so often gone to fight, their wives managed the household alone. the typical wife had maidens of equal class to whom she taught household management, spinning, weaving, carding wool with iron wool-combs, heckling flax, embroidery, and making garments. there were foot-treadles for spinning wheels. she taught the children. each day she scheduled the activities of the household including music, conversation, dancing, chess, reading, playing ball, and gathering flowers. she organized picnics, rode horseback and went hunting, hawking to get birds, and hare-ferreting. she was nurse to all around her. if her husband died, she usually continued to manage the household because most men named their wife as executor of their will with full power to act as she thought best. the wives of barons shared their right of immunity from arrest by the processes of common law and to be tried by their peers. for ladies, close-fitting jackets came to be worn over closefitting long gowns with low, square-cut necklines and flowing sleeves, under which was worn a girdle or corset of stout linen reinforced by stiff leather or even iron. her skirt was provocatively slit from knee to ankle. all her hair was confined by a hair net. headdresses were very elaborate and heavy, trailing streamers of linen. some were in the shape of hearts, butterflies, crescents, double horns, steeples, or long cones. men also wore hats rather than hoods. they wore huge hats of velvet, fur, or leather. their hair was cut into a cap-like shape on their heads, and later was shoulder-length. they wore doublets with thick padding over the shoulders or short tunics over the trucks of their bodies and tightened at the waist to emphasize the shoulders. their collars were high. their sleeves were long concoctions of velvet, damask, and satin, sometimes worn wrapped around their arms in layers. their legs and hips were covered with hosen, often in different colors. codpieces worn between the legs emphasized the sensuality of the age as did ladies' tight and lowcut gowns. men's shoes were pointed with upward pikes at the toes that impeded walking. at another time, their shoes were broad with blunt toes. both men and women wore much jewelry and ornamentation. but, despite the fancy dress, the overall mood was a macabre preoccupation with mortality, despair, and a lack of confidence in the future. cannon and mercenaries had reduced the military significance of knighthood, so its chivalric code deteriorated into surface politeness, ostentation, and extravagance. master and servants ceased to eat together in the same hall, except for great occasions, on feast days, and for plays. the lord, and his lady, family, and guests took their meals in a great chamber, usually up beneath the roof next to the upper floor of the great hall. the chimney-pieces and windows were often richly decorated with paneled stonework, tracery and carving. there was often a bay or oriel window with still expensive glass. tapestries, damask, and tablecloths covered the tables. the standard number of meals was three: breakfast, dinner, and supper. there was much formality and ceremonial ritual, more elaborate than before, during dinners at manorial households, including processions bringing and serving courses, and bowing, kneeling, and curtseying. there were many courses of a variety of meats, fish, stews, and soups, with a variety of spices and elaborately cooked. barons, knights, and their ladies sat to the right of the lord above the salt and were served by the lord's sewer [served the food] and carver and gentlemen waiters; their social inferiors such as "gentlemen of worship" sat below the salt and were served by another sewer and yeomen. the lord's cupbearer looked after the lord alone. a knightsâ� table was waited on by yeomen. the gentlemen officers, gentlemen servants and yeomen officers were waited on by their own servants. the amount of food dished out to each person varied according to his rank. the almoner said grace and distributed the leftovers to the poor gathered at the gate. the superior people's hands were washed by their inferiors. lastly, the trestle tables were removed while sweet wine and spices were consumed standing. then the musicians were called into the hall and dancing began. the lord usually slept in a great bed in this room. the diet of an ordinary family such as that of a small shopholder or yeoman farmer included beef, mutton, pork, a variety of fish, both fresh and salted, venison, nuts, peas, oatmeal, honey, grapes, apples, pears, and fresh vegetables. cattle and sheep were driven from wales to english markets. this droving lasted for five centuries. many types of people besides the nobility and knights now had property and thus were considered gentry: female lines of the nobility, merchants and their sons, attorneys, auditors, squires, and peasant-yeomen. the burgess grew rich as the knight dropped lower. the great merchants lived in mansions which could occupy whole blocks. in towns these mansions were entered through a gate through a row of shops on the street.typically, there would be an oak-paneled great hall, with adjoining kitchen, pantry, and buttery on one end and a great parlor to receive guests, bedrooms, wardrobes, servants' rooms, and a chapel on the other end or on a second floor. a lesser dwelling would have these rooms on three floors over a shop on the first floor. an average londoner would have a shop, a storeroom, a hall, a kitchen, and a buttery on the first floor, and three bedrooms on the second floor. artisans and shopkeepers of more modest means lived in rows of dwellings, each with a shop and small storage room on the first floor, and a combination parlor-bedroom on the second floor. the humblest residents crowded their shop and family into one 6 by 10 foot room for rent of a few shillings a year. all except the last would also have a small garden. the best gardens had a fruit tree, herbs, flowers, a well, and a latrine area. there were common and public privies for those without their own. kitchen slops and casual refuse continued to be thrown into the street. floors of stone or planks were strewn with rushes. there was some tile flooring. most dwellings had glass windows. candles were used for lighting at night. torches and oil-burning lanterns were portable lights. furnishings were still sparse. men sat on benches or joint stools and women sat on cushions on the floor. hall and parlor had a table and benches and perhaps one chair. bedrooms had beds that were surrounded by heavy draperies to keep out cold drafts. the beds had pillows, blankets, and sheets. clothes were stored in a chest, sometimes with sweet-smelling herbs such as lavender, rosemary, and southernwood. better homes had wall hanging and cupboards displaying plate. laundresses washed clothes in the streams, rivers, and public conduits. country peasants still lived in wood, straw, and mud huts with earth floors and a smoky hearth in the center or a kitchen area under the eaves of the hut. in 1442, bricks began to be manufactured in the nation and so there was more use of bricks in buildings. chimneys were introduced into manor houses where stone had been too expensive. this was necessary if a second floor was added, so the smoke would not damage the floor above it and would eventually go out of the house. nobles and their retinue moved from manor to manor, as they had for centuries, to keep watch upon their lands and to consume the produce thereof; it was easier to bring the household to the estate than to transport the yield of the estate to the household. also, at regular intervals sewage had to be removed from the cellar pits. often a footman walked or ran on foot next to his master or mistress when they rode out on horseback or in a carriage. he was there primarily for prestige. jousting tournaments were held for entertainment purposes only and were followed by banquets of several courses of food served on dishes of gold, silver, pewter, or wood on a linen cloth covering the table. hands were washed before and after the meal. people washed their faces every morning after getting up. teeth were cleaned with powders. fragrant leaves were chewed for bad breath. garlic was used for indigestion and other ailments. feet were rubbed with salt and vinegar to remove calluses. good manners included not slumping against a post, fidgeting, sticking one's finger into one's nose, putting one's hands into one's hose to scratch the privy parts, spitting over the table or too far, licking one's plate, picking one's teeth, breathing stinking breath into the face of the lord, blowing on one's food, stuffing masses of bread into one's mouth, scratching one's head, loosening one's girdle to belch, and probing one's teeth with a knife. fishing and hunting were reserved for the nobility rather than just the king. as many lords became less wealthy because of the cost of war, some peasants, villein and free, became prosperous, especially those who also worked at a craft, e.g. butchers, bakers, smiths, shoemakers, tailors, carpenters, and cloth workers. an agricultural slump caused poorer soils to fall back into waste. the better soils were leased by peasants, who, with their families, were in a better position to farm it than a great lord, who found it hard to hire laborers at a reasonable cost. further, peasants' sheep, hens, pigs, ducks, goats, cattle, bees, and crop made them almost self-sufficient in foodstuffs. they lived in a huddle of cottages, pastured their animals on common land, and used common meadows for haymaking. they subsisted mainly on boiled bacon, an occasional chicken, worts and beans grown in the cottage garden, and cereals. they wore fine wool cloth in all their apparel. brimless hats were replacing hoods. they had an abundance of bed coverings in their houses. and they had more free time. village entertainment included traveling jesters, acrobats, musicians, and bear-baiters. playing games and gambling were popular pastimes. most villeins were now being called "customary tenants" or "copyholders" of land because they held their acres by a copy of the court-roll of the manor, which listed the number of teams, the fines, the reliefs, and the services due to the lord for each landholder. the chancery court interpreted many of these documents to include rights of inheritance. the common law courts followed the lead of the chancery and held that copyhold land could be inherited as was land at common law. evictions by lords decreased. the difference between villein and freeman lessened but landlords usually still had profits of villein bondage, such as heriot, merchet, and chevage. social mobility was most possible in the towns, where distinctions were usually only of wealth. so a poor apprentice could aspire to become a master, a member of the livery of his company, a member of the council, an alderman, a mayor, and then an esquire for life. the distance between baron and a country knight and between a yeoman and knight was wider. manor custom was strong. but a yeoman could give his sons a chance to become gentlemen by entering them in a trade in a town, sending them to university, or to war. every freeman was to some extent a soldier, and to some extent a lawyer, serving in the county or borough courts. a burgess, with his workshop or warehouse, was trained in warlike exercises, and he could keep his own accounts, and make his own will and other legal documents, with the aid of a scrivener or a chaplain, who could supply an outline of form. but law was growing as a profession. old-established london families began to choose the law as a profession for their sons, in preference to an apprenticeship in trade. many borough burgesses in parliament were attorneys. a class of laborers was arising who depended entirely on the wages of industry for their subsistence. the cloth workers in rural areas were isolated and weak and often at the mercy of middlemen for employment and the amount of their wages. when rural laborers went to towns to seek employment in the new industries, they would work at first for any rate. this deepened the cleavage of the classes in the towns. the artificers in the town and the cottagers and laborers in the country lived from hand to mouth, on the edge of survival, but better off than the old, the diseased, the widows, and the orphans. however, the 1400s were the most prosperous time for laborers considering their wages and the prices of food. meat and poultry were plentiful and grain prices low. in london, shopkeepers appealed to passersby to buy their goods, sometimes even seizing people by the sleeve. the drapers had several roomy shops containing shelves piled with cloths of all colors and grades, tapestries, pillows, blankets, bed draperies, and â�bankers and dorsersâ� to soften hard wooden benches. a rear storeroom held more cloth for import or export. many shops of skinners were on fur row. there were shops of leather sellers, hosiers, gold and silver cups, and silks. at the stocks market were fishmongers, butchers, and poulterers. london grocers imported spices, canvas, ropery, potions, unguents, soap, confections, garlic, cabbages, onions, apples, oranges, almonds, figs, dates, raisins, dyestuffs, woad, madder (plant for medicine and dye), scarlet grains, saffron, iron, and a primitive steel. they were retailers as well as wholesalers and had shops selling honey, licorice, salt, vinegar, rice, sugar loaves, syrups, spices, garden seeds, dyes, alum, soap, brimstone, paper, varnish, canvas, rope, musk, incense, treacle of genoa, and mercury. the grocers did some money lending, usually at 12% interest. the guilds did not restrict themselves to dealing in the goods for which they had a right of inspection, and so many dealt in wine that it was a medium of exchange. there was no sharp distinction between retail and wholesale trading. london grocers sold herbs for medicinal as well as eating purposes. breadcarts sold penny wheat loaves. foreigners set up stalls on certain days of the week to sell meat, canvas, linen, cloth, ironmongery, and lead. there were great houses, churches, monasteries, inns, guildhalls, warehouses, and the king's beam for weighing wool to be exported. in 1410, the guildhall of london was built through contributions, proceeds of fines, and lastly, to finish it, special fees imposed on apprenticeships, deeds, wills, and letters-patent. the mercers and goldsmiths were in the prosperous part of town. the goldsmiths' shops sold gold and silver plate, jewels, rings, water pitchers, drinking goblets, basins to hold water for the hands, and covered saltcellars. the grain market was on cornhill. halfway up the street, there was a supply of water which had been brought up in pipes. on the top of the hill was a cage where riotous folk had been incarcerated by the night watch and the stocks and pillory, where fraudulent schemers were exposed to ridicule. no work was to be done on sundays, but some did work surreptitiously. the barbers kept their shops open in defiance of the church. outside the london city walls were tenements, the smithfield cattle market, westminster hall, green fields of crops, and some marsh land. on the thames river to london were large ships with cargoes; small boats rowed by tough boatmen offering passage for a penny; small private barges of great men with carved wood, gay banners, and oarsmen with velvet gowns; the banks covered with masts and tackle; the nineteen arch london bridge supporting a street of shops and houses and a drawbridge in the middle; quays; warehouses, and great cranes lifting bales from ship to wharf. merchant guilds which imported or exported each had their own wharves and warehouses. downstream, pirates hung on gallows at the low-water mark to remain until three tides had overflowed their bodies. a climate change of about 1 1/2 degree celcius lower caused the thames to regularly freeze over in winter. the large scale of london trade promoted the specialization of the manufacturer versus the merchant versus the shipper. merchants had enough wealth to make loans to the government or for new commercial enterprises. local reputation on general, depended upon a combination of wealth, trustworthiness of character, and public spirit; it rose and fell with business success. some london merchants were knighted by the king. many bought country estates thereby turning themselves into gentry. the king granted london all common soils, improvements, wastes, streets, and ways in london and in the adjacent waters of the thames river and all the profits and rents to be derived therefrom. later the king granted london the liberty to purchase lands and tenements worth up to 2,667s. yearly. with this power, london had obtained all the essential features of a corporation: a seal, the right to make by-laws, the power to purchase lands and hold them "to them and their successors" (not simply their heirs, which is an individual and hereditary succession only), the power to sue and be sued in its own name, and the perpetual succession implied in the power of filling up vacancies by election. since these powers were not granted by charters, london is a corporation by prescription. in 1446, the liverymen obtained the right with the council to elect the mayor, the sheriff, and certain other corporate officers. many boroughs sought and obtained formal incorporation with the same essential features as london. this tied up the loose language of their early charters of liberties. often, a borough would have its own resident justice of the peace. each incorporation involved a review by a justice of the peace to make sure the charter of incorporation rule didn't conflict with the law of the nation. a borough typically had a mayor accompanied by his personal swordbearer and serjeants-at-mace bearing the borough regalia, bailiffs, a sheriff, and chamberlains or a steward for financial assistance. at many boroughs, aldermen, assisted by their constables, kept the peace in their separate wards. there might be coroners, a recorder, and a town clerk, with a host of lesser officials including beadles [a messenger of a court], aletasters, sealers, searchers [inspectors], weighers and keepers of the market, ferrymen and porters, clock-keepers and criers [cries out public announcements through the streets], paviors [maintained the roads], scavengers and other street cleaners, gatekeepers and watchmen of several ranks and kinds. a wealthy borough would have a chaplain and two or three minstrels. the mayor replaced the bailiffs as the chief magistracy. in all towns, the wealthiest and most influential guilds were the merchant traders of mercers, drapers, grocers, and goldsmiths. from their ranks came most of the mayors, and many began to intermarry with the country knights and gentry. next came the shopholders of skinners, tailors, ironmongers, and corvisors [shoemakers]. thirdly came the humbler artisans, the sellers of victuals, small shopkeepers, apprentices, and journeymen on the rise. lastly came unskilled laborers, who lived in crowded tenements and hired themselves out. the first three groups were the free men who voted, paid scot and bore lot, and belonged to guilds. scot was a ratable proportion in the payments levied from the town for local or national purposes. merchant guilds in some towns merged their existence into the town corporation, and their guild halls became the common halls of the town, and their property became town property. in london, the cutlers' company was chartered in 1415, the haberdashers' company in 1417, the grocers' company in 1428, the drapers' and cordwainers' companies in 1429, the vintners' and brewers' companies in 1437, the leathersellers' company in 1444, the girdlers' company in 1448, the armourers' and brassiers' companies in 1453, the barbers' company in 1461, the tallow chandlers' company in 1462, the ironmongers' company in 1464, the dyers' company in 1471, the musicians' company in 1472, the carpenters' company in 1477, the cooks' company in 1481, and the waxchandlers' company in 1483. the fishmongers, which had been chartered in 1399, were incorporated in 1433, the cordwainers in 1439, and the pewterers in 1468. there were craft guilds in the towns, at least 65 in london. in fact, every london trade of twenty men had its own guild. the guild secured good work for its members and the members maintained the reputation of the work standards of the guild. bad work was punished and night work prohibited as leading to bad work. the guild exercised moral control over its members and provided sickness and death benefits for them. there was much overlapping in the two forms of association: the craft guild and the religious fraternity. apprentices were taken in to assure an adequate supply of competent workers for the future. the standard indenture of an apprentice bound him to live in his master's house; serve him diligently; obey reasonable commands; keep his master's secrets; protect him from injury; abstain from dice, cards and haunting of taverns; not marry; commit no fornication, and not absent himself without permission. in return the master undertook to provide the boy or girl with bed, board, and lodging and to instruct him or her in the trade, craft, or mystery. when these apprentices had enough training they were made journeymen with a higher rate of pay. journeymen traveled to see the work of their craft in other towns. those journeymen rising to master had the highest pay rate. occupations free of guild restrictions included horse dealers, marbelers, bookbinders, jewelers, organ makers, feathermongers, pie makers, basket makers, mirrorers, quilters, and parchment makers. non-citizens of london could not be prevented from selling leather, metalwares, hay, meat, fruit, vegetables, butter, cheese, poultry, and fish from their boats, though they had to sell in the morning and sell all their goods before the market closed. in the towns, many married women had independent businesses and wives also played an active part in the businesses of their husbands. wives of well-to-do london merchants embroidered, sewed jewelry onto clothes, and made silk garments. widows often continued in their husband's businesses, such as managing a large import-export trade, tailoring, brewing, and metal shop. socially lower women often ran their own breweries, bakeries, and taverns. it was possible for wives to be free burgesses in their own right in some towns. some ladies were patrons of writers. some women were active in prison reform in matters of reviews to insure that no man was in gaol without due cause, overcharges for bed and board, brutality, and regulation of prisoners being placed in irons. many men and women left money in their wills for food and clothing for prisoners, especially debtors. wills often left one-third of the wealth to the church, the poor, prisoners, infirmaries, young girls' education; road, wall, and bridge repair; water supply, markets and almshouses. some infirmaries were for the insane, who were generally thought to be possessed by the devil or demons. their treatment was usually by scourging the demons out of their body by flogging. if this didn't work, torture could be used to drive the demons from the body. the guilds were being replaced by associations for the investment of capital. in associations, journeymen were losing their chance of rising to be a master. competition among associations was starting to supplant custom as the mainspring of trade. the cloth exporters, who were mostly mercers, were unregulated and banded together for mutual support and protection under the name of merchant adventurers of london. the merchant adventurers was chartered in 1407. it was the first and a prototype of regulated companies. that is the company regulated the trade. each merchant could ship on his own a certain number of cloths each year, the number depending on the length of his membership in the company. he could sell them himself or by his factor at the place where the company had privileges of market. strict rules governed the conduct of each member. he was to make sales only at certain hours on specified days. all disagreements were to be settled by the company's governor, or his deputy in residence, and those officials dealt with such disputes as arose between members of the company and continental officials and buyers. a share in the ownership of one of their vessels was a common form of investment by prosperous merchants. by 1450, the merchant adventurers were dealing in linen cloths, buckrams [a stiffened, coarse cloth], fustians [coarse cloth made of cotton threads going in one direction and linen threads the other], satins, jewels, fine woolen and linen wares, threads, potions, wood, oil, wine, salt, copper, and iron. they began to replace trade by alien traders. the history of the "merchant adventurers" was associated with the growth of the mercantile system for more than 300 years. it eventually replaced the staples system. paved roads in towns were usually gravel and sometimes cobble. they were frequently muddy because of rain and spillage of water being carried. iron-shod wheels and overloaded carts made them very uneven. london was the first town with paviors. they cleaned and repaired the streets, filling up potholes with wood chips and compacting them with hand rams. the paviors were organized as a city company in 1479. about 1482, towns besides london began appointing salaried road paviors to repair roads and collect their expenses from the householders because the policy of placing the burden on individual householders didn't work well. london streets were lighted at night by public lanterns, under the direction of the mayor. the residents were to light these candle lanterns in winter from dusk to the 9 p.m. curfew. there were fire-engines composed of a circular cistern with a pump and six feet of inflexible hose on wheels pulled by two men on one end and pushed by two men on the other end. in 1480 the city walls were rebuilt with a weekly tax of 5d. per head. in schools, there was a renaissance of learning from original sources of knowledge written in greek and rebirth of the greek pursuit of the truth and scientific spirit of inquiry. there was a striking increase in the number of schools founded by wealthy merchants or town guilds. every cathedral, monastery, and college had a grammar school. merchants tended to send their sons to private boarding schools, instead of having them tutored at home as did the nobility. well-to-do parents still sent sons to live in the house of some noble to serve them as pages in return for being educated with the noble's son by the household priest. they often wore their master's coat of arms and became their squires as part of their knightly education. sometimes girls were sent to live in another house to receive education from a tutor there under the supervision of the lady of the house. every man, free or villein, could send his sons and daughters to school. in every village, there were some who could read and write. in 1428, lincoln's inn required barristers normally resident in london and the county of middlesex to remain in residence and pay commons during the periods between sessions of court and during vacations, so that the formal education of students would be continuous. in 1442, a similar requirement was extended to all members. the book "sir gawain and the green knight" was written about an incident in the court of king arthur and queen guenevere in which a green knight challenges arthur's knights to live up to their reputation for valor and awesome deeds. the knight gawain answers the challenge, but is shown that he could be false and cowardly when death seemed to be imminent. thereafter, he wears a green girdle around his waist to remind him not to be proud. other literature read included "london lickpenny", a satire on london and its expensive services and products, "fall of princes" by john lydgate, social history by thomas hoccleve, "the cuckoo and the nightengale", and "the flower and leaf" on morality as secular common sense. king james i of scotland wrote a book about how he fell in love. chaucer, cicero, ovid, and aesops's fables were widely read. malory's new version of the arthurian stories was popular. margery kempe wrote the first true autobiography. she was a woman who had a normal married life with children, but one day had visions and voices which led her to leave her husband to take up a life of wandering and praying in holy possession. there were religious folk ballads such as "the cherry tree carol", about the command of jesus from mary's womb for a cherry tree to bend down so that mary could have some cherries from it. the common people developed ballads, e.g. about their love of the forest, their wish to hunt, and their hatred of the forest laws. about 30% of londoners could read english. books were bought in london in such quantities by 1403 that the craft organizations of text-letter writers, illuminators, bookbinders, and book sellers was sanctioned by ordinance. "unto the honorable lords, and wise, the mayor and aldermen of the city of london, pray very humbly all the good folks, freemen of the said city, of the trades of writers of text-letter, limners [illuminator of books], and other folks of london who are wont to bind and to sell books, that it may please your great sagenesses to grant unto them that they may elect yearly two reputable men, the one a limner, the other a textwriter, to be wardens of the said trades, and that the names of the wardens so elected may be presented each year before the mayor for the time being, and they be there sworn well and diligently to oversee that good rule and governance is had and exercised by all folks of the same trades in all works unto the said trades pertaining, to the praise and good fame of the loyal good men of the said trades and to the shame and blame of the bad and disloyal men of the same. and that the same wardens may call together all the men of the said trades honorably and peacefully when need shall be, as well for the good rule and governance of the said city as of the trades aforesaid. and that the same wardens, in performing their due office, may present from time to time all the defaults of the said bad and disloyal men to the chamberlain at the guildhall for the time being, to the end that the same may there, according to the wise and prudent discretion of the governors of the said city, be corrected, punished, and duly redressed. and that all who are rebellious against the said wardens as to the survey and good rule of the same trades may be punished according to the general ordinance made as to rebellious persons in trades of the said city [fines and imprisonment]. and that it may please you to command that this petition, by your sagenesses granted, may be entered of record for time to come, for the love of god and as a work of charity." gutenberg's printing press, which used movable type of small blocks with letters on them, was brought to london in 1476 by a mercer: william caxton. it supplemented the text-writer and monastic copyist. it was a wood and iron frame with a mounted platform on which were placed small metal frames into which words with small letters of lead had been set up. each line of text had to be carried from the type case to the press. beside the press were pots filled with ink and inking balls. when enough lines of type to make a page had been assembled on the press, the balls would be dipped in ink and drawn over the type. then a sheet of paper would be placed on the form and a lever pulled to press the paper against the type. linen usually replaced the more expensive parchment for the book pages. the printing press made books more accessible to all literate people. caxton printed major english texts and some translations from french and latin. he commended different books to various kinds of readers, for instance, for gentlemen who understand gentleness and science, or for ladies and gentlewomen, or to all good folk. there were many cook books in use. there were convex eyeglasses for reading and concave ones for distance to correct near-sightedness. the first public library in london was established from a bequest in a will in 1423. many carols were sung at the christian festival of christmas. ballads were sung on many features of social life of this age of disorder, hatred of sheriffs, but faith in the king. the legend of robin hood was popular, as were town miracle plays on leading incidents of the bible and morality plays. vintners portrayed the miracle of cana where water was turned into wine and goldsmiths ornately dressed the three kings coming from the east. in york, the building of noah's ark was performed by the shipwrights and the flood performed by the fishery and mariners. short pantomimes and disguising, forerunners of costume parties, were good recreation. games of cards became popular as soon as cards were introduced. the king, queen, and jack were dressed in contemporary clothes. men bowled, kicked footballs, and played tennis. in london, christmas was celebrated with masques and mummings. there was a great tree in the main market place and evergreen decorations in churches, houses, and streets. there were also games, dances, street bonfires in front of building doors, and general relaxation of social controls. sometimes there was drunken licentiousness and revelry, with peasants gathering together to make demands of lords for the best of his goods. may day was celebrated with crowns and garlands of spring flowers. the village may day pageant was often presided over by robin hood and maid marion. people turned to mysticism to escape from the everyday violent world. they read works of mystics, such as "scale of perfection" and "cloud of unknowing", the latter describing how one may better know god. they believed in magic and sorcery, but had no religious enthusiasm because the church was engendering more disrespect. monks and nuns had long ago resigned spiritual leadership to the friars; now the friars too lost much of their good reputation. the monks became used to life with many servants such as cooks, butlers, bakers, brewers, barbers, laundresses, tailors, carpenters, and farm hands. the austerity of their diet had vanished. the schedule of divine services was no longer followed by many and the fostering of learning was abandoned. into monasteries drifted the lazy and miserable. nunneries had become aristocratic boarding houses. the practice of taking sanctuary was abused; criminals and debtors sought it and were allowed to overstay the 40-day restriction and to leave at night to commit robberies. there were numerous chaplains, who were ordained because they received pay from private persons for saying masses for the dead; they had much leisure time for mischief because they had to forego wife and family. church courts became corrupt, but jealously guarded their jurisdiction from temporal court encroachment. peter's pence was no longer paid by the people, so the burden of papal exaction fell wholly on the clergy. but the church was rich and powerful, paying almost a third of the whole taxation of the nation and forming a majority in the house of lords. many families had kinsmen in the clergy. even the lowest cleric or clerk could read and write in latin. people relied on saint's days as reference points in the year, because they did not know dates of the year. but townspeople knew the hour and minute of each day, because clocks driven by a descending weight on a cord were in all towns and in the halls of the well-to-do. this increased the sense of punctuality and lifted standards of efficiency. these weight-driven clocks replaced water clocks, which had a problem of water freezing, and sandclocks, which could measure only small time intervals. a linguistic unity and national pride was developing. london english became the norm and predominated over rural dialects. important news was announced and spread by word of mouth in market squares and sometimes in churches. as usual, traders provided one of the best sources of news; they maintained an informal network of speedy messengers and accurate reports because political changes so affected their ventures. news also came from peddlers, who visited villages and farms to sell items that could not be bought in the local village. these often included scissors, eyeglasses, colored handkerchiefs, calendars, fancy leather goods, watches, and clocks. peddling was fairly profitable because of the lack of competition. but peddlers were often viewed as tramps and suspected of engaging in robbery as well as peddling. a royal post service was established by relays of mounted messengers. the first route was between london and the scottish border, where there were frequent battles for land between the scotch and english. the inland roads from town to town were still rough and without signs. a horseman could make up to 40 miles a day. common carriers took passengers and parcels from various towns to london on scheduled journeys. now the common yeoman could order goods from the london market, communicate readily with friends in london, and receive news of the world frequently. trade with london was so great and the common carrier so efficient in transporting goods that the medieval fair began to decline. first the grocers and then the mercers refused to allow their members to sell goods at fairs. there was much highway robbery. most goods were still transported by boats along the coasts, with trading at the ports. embroidery was exported. imported were timber, pitch, tar, potash [for cloth dying], furs, silk, satin, gold cloth, damask cloth, furred gowns, gems, fruit, spices, and sugar. imports were restricted by national policy for the purpose of protecting native industries. english single-masted ships began to be replaced by two or three masted ships with high pointed bows to resist waves and sails enabling the ship to sail closer to the wind. 200 tuns was the usual carrying capacity. the increase in trade made piracy, even by merchants, profitable and frequent until merchant vessels began sailing in groups for their mutual protection. the astrolabe, which took altitude of sun and stars, was used for navigation. consuls were appointed to assist english traders abroad. henry iv appointed the first admiral of the entire nation and resolved to create a national fleet of warships instead of using merchant ships. in 1417, the war navy had 27 ships. in 1421, portsmouth was fortified as a naval base. henry v issued the orders that formed the basic law of english admiralty and appointed surgeons to the navy and army. for defense of the nation, especially the safeguard of the seas, parliament allotted the king for life, 3s. for every tun of wine imported and an additional 3s. for every tun of sweet wine imported. >from about 1413, tunnage on wine [tax per tun] and poundage [tax per pound] on merchandise were duties on goods of merchants which were regularly granted by parliament to the king for life for upkeep of the navy. before this time, such duties had been sporadic and temporary. the most common ailments were eye problems, aching teeth, festering ears, joint swelling and sudden paralysis of the bowels. epidemics broke out occasionally in the towns in the summers. the plague swept london in 1467 and the nation in 1407, 1445, and 1471. leprosy disappeared. infirmaries were supported by a tax of the king levied on nearby counties. the walls, ditches, gutters, sewers, and bridges on waterways and the coast were kept in repair by laborers hired by commissions appointed by the chancellor. those who benefited from these waterways were taxed for the repairs in proportion to their use thereof. alabaster was sculptured into tombs surmounted with a recumbent effigy of the deceased, and effigies of mourners on the sides. few townsmen choose to face death alone and planned memorial masses to be sung to lift their souls beyond purgatory. chantries were built by wealthy men for this purpose. chemical experimentation was still thought to be akin to sorcery, so was forbidden by king henry iv in 1404. gold was minted into coins: noble, half noble, and farthing. king henry iv lost power to the commons and the lords because he needed revenue from taxes and as a usurper king, he did not carry the natural authority of a king. the commons acquired the right to elect its own speaker. the lords who helped the usurpation felt they should share the natural power of the kingship. the council became the instrument of the lords. also, the commons gained power compared to the nobility because many nobles had died in war. the consent of the commons to legislation became so usual that the justices declared that it was necessary. the commons began to see itself as representative of the entire commons of the realm instead of just their own counties. its members had the freedom to consider and debate every matter of public interest, foreign or domestic, except for church matters. the commons, the poorest of the three estates, established an exclusive right to originate all money grants to the king in 1407. the speaker of the commons announced its money grant to the king only on the last day of the parliamentary session, after the answers to its petitions had been declared, and after the lords had agreed to the money grant. it tied its grants by rule rather than just practice to certain appropriations. for instance, tunnage and poundage were appropriated for naval defenses. wool customs went to the maintenance of calais, a port on the continent, and defense of the nation. it also put the petitions in statutory form, called "bills", to be enacted after consideration and amendment by all without alteration. each house had a right to deliberate in privacy. in the commons, members spoke in the order in which they stood up bareheaded. any member of parliament or either house or the king could initiate a bill. both houses had the power to amend or reject a bill. there were conferences between select committees of both houses to settle their differences. the commons required the appointment of auditors to audit the king's accounts to ensure past grants had been spent according to their purpose. it forced the king's council appointees to be approved by parliament and to be paid salaries. about 1430, kings' councilors were required to take an oath not to accept gifts of land, not to maintain private suits, not to reveal secrets, and not to neglect the kingâ�s business. a quorum was fixed and rules made for removal from the council. for the next fifty years, the council was responsible both to the king and to parliament. this was the first encroachment on the king's right to summon, prorogue, or dismiss a parliament at his pleasure, determine an agenda of parliament, veto or amend its bills, exercise his discretion as to which lords he summoned to parliament, and create new peers by letters patent [official public letters]. parliament was affected by the factionalism of the times. the speaker of the commons was often an officer of some great lord. in 1426, the retainers of the barons in parliament were forbidden to bear arms, so they appeared with clubs on their shoulders. when the clubs were forbidden, they came with stones concealed in their clothing. kings created dukes and marquesses to be peers. a duke was given creation money or allowance of 40 pounds a year. a marquess was given 35 pounds. these new positions could not descend to an heiress, unlike a barony or earldom. an earl was given 20 pounds, which probably took the place of his one-third from the county. king henry vi gave the title of viscount to several people; it had an allowance of 13.3 pounds and was above baron. it allowed them to be peers. there were about 55 peers. in king edward iv's reign, the king's retinue had about 16 knights, 160 squires, 240 yeomen, clerks, grooms, and stablemen. the suitable annual expense of the household of the king was 13,000 pounds for his retinue of about 516 people, a duke 4,000 pounds for about 230 people, a marquess 3,000 pounds for about 224 people, an earl 2,000 pounds for about 130 people, a viscount 1,000 pounds for about 84 people, a baron 500 pounds for about 26 people, a banneret [a knight made in the field, who had a banner] 200 pounds for about 24 people, a knight bachelor 100 pounds for about 16 people, and a squire 50 pounds for about 16 people. of a squire's 50 pounds, about 25 pounds were spent in food, repairs and furniture 5, on horses, hay, and carriage 4, on clothes, alms and oblations 4, wages 9, livery of dress 3, and the rest on hounds and the charges of harvest and hay time. many servants of the household of the country gentleman were poor relations. they might by education and accomplishment rise into the service of a baron who could take him to court, where he could make his fortune. barons' households also included steward, chaplains, treasurer, accountants, chamberlain, carvers, servers, cupbearers, pages, and even chancellor. they were given wages and clothing allowances and had meals in the hall at tables according to their degree. the authority of the king's privy seal had become a great office of state which transmitted the king's wishes to the chancery and exchequer, rather than the king's personal instrument for sealing documents. now the king used a signet kept by his secretary as his personal seal. edward iv made the household office of secretary, who had custody the king's signet seal, a public office. the secretary was generally a member of the council. edward iv invented the benevolence, a gift wrung from wealthy subjects. king edward iv introduced an elaborate spy system, the use of the rack to torture people to give information, and other interferences with justice, all of which the tudor sovereigns later used. torture was used to discover facts, especially about coconspirators, rather than to elicit a confession, as on the continent. it was only used on prisoners held in the tower of london involved in state trials and could only be authorized by the king's closest councilors in virtue of the royal prerogative. the rack stretched the supine body by the wrists and legs with increasing agony at the joints until the limbs were dislocated. some victims were permanently crippled by it; others died on it. most told what they knew, often at the very sight of the rack. torture was forbidden in the common law, which favored an accusatorial system, in which the accuser had to prove guilt, rather than an inquisitional system, in which the accused had to prove innocence. edward iv applied martial law to ordinary cases of high treason by extending the jurisdiction of the politicallyappointed high constable of england to these cases, thus depriving the accused of trial by jury. he executed many for treason and never restored their forfeited land to their families, as had been the usual practice. king richard iii prohibited the seizure of goods before conviction of felony. he also liberated the unfree villeins on royal estates. it was declared under parliamentary authority that there was a preference for the crown to pass to a king's eldest son, and to his male issue after him. formerly, a man could ascend to the throne through his female ancestry as well. the law the forcible entry statute is expanded to include peaceful entry with forcible holding after the justices arrived and to forcible holding with departure before the justices arrived. penalties are triple damages, fine, and ransom to the king. a forceful possession lasting three years is exempt. by common law, a tenant could not take away buildings or fixtures he built on land because it would be wasteful. this applied to agricultural fixtures, but not to other trade fixtures. also at common law, if a person had enjoyed light next to his property for at least 20 years, no one could build up the adjacent land so that the light would be blocked. women of age fourteen or over shall have livery of their lands and tenements by inheritance without question or difficulty. purposely cutting out another's tongue or putting out another's eyes is a felony, the penalty for which is loss of all property]. no one may keep swans unless he has lands and tenements of the estate of freehold to a yearly value of 67s., because swans of the king, lords, knights, and esquires have been stolen by yeomen and husbandmen. the wage ceiling for servants is: bailiff of agriculture 23s.4d. per year, and clothing up to 5s., with meat and drink; chief peasant, a carter, chief shepherd 20s. and clothing up to 4s., with meat and drink; common servant of agriculture 15s., and clothing up to 3s.4d.; woman servant 10s., and clothing up to 4s., with meat and drink; infant under fourteen years 6s., and clothing up to 3s., with meat and drink. such as deserve less or where there is a custom of less, that lesser amount shall be given. for laborers at harvest time: mower 4d. with meat and drink or 6d. without; reaper or carter: 3d. with or 5d. without; woman laborer and other laborers: 2d with and 4d. without. the ceiling wage rate for craftsmen per day is: free mason or master carpenter 4d. with meat and drink or 5d. without; master tiler or slater, rough mason, and mesne [intermediary] carpenter and other artificiers in building 3d. with meat and drink or 4d. without; every other laborer 2d. with meat and drink or 3d. without. in winter the respective wages were less: mason category: 3d. with or 4d. without; master tiler category: 2d. with or 4d. without; others: 1d. with or 3d. without meat and drink. any servant of agriculture who is serving a term with a master and covenants to serve another man at the end of this term and that other man shall notify the master by the middle of his term so he can get a replacement worker. otherwise, the servant shall continue to serve the first master. no man or woman may put their son or daughter to serve as an apprentice in a craft within any borough, but may send the child to school, unless he or she has land or rent to the value of 20s. per year.this was because of scarcity of laborers and other servants of agriculture. no laborer may be hired by the week. masons may no longer congregate yearly, because it has led to violation of the statute of laborers. no games may be played by laborers because they lead to [gambling and] murders and robberies. apparel worn must be appropriate to one's status to preserve the industry of agriculture. the following list of classes shows the lowest class, which could wear certain apparel: 1. lords gold cloth, gold corses, sable fur, purple silk 2. knights velvet, branched satin, ermine fur 3. esquires and gentlemen with possessions to the value of 800s. per year, daughters of a person who has possessions to the value of 2,000s. a year damask, silk, kerchiefs up to 5s. in value. 4. esquires and gentlemen with possessions to the yearly value of 800s. 40 pounds fur of martron or letuse, gold or silver girdles, silk corse not made in the nation, kerchief up to 3s.4d in value 5. men with possessions of the yearly value of 40s. excluding the above three classes fustian, bustian, scarlet cloth in grain 6. men with possessions under the yearly value of 40s. excluding the first three classes black or white lamb fur, stuffing of wool, cotton, or cadas. 7. yeomen cloth up to the value of 2s., hose up to the value of 14s., a girdle with silver, kerchief up to 12d. 8. servants of agriculture, laborer, servant, country craftsman none of the above clothes gowns and jackets must cover the entire trunk of the body, including the private parts. shoes may not have pikes over two inches. every town shall have at its cost a common balance with weights according to the standard of the exchequer. all citizens may weigh goods for free. all cloth to be sold shall be sealed according to this measure. there is a standard bushel of grain throughout the nation. there are standard measures for plain tile, roof tile, and gutter tile throughout the nation. no gold or silver may be taken out of the nation. the price of silver is fixed at 30s. for a pound, to increase the value of silver coinage, which has become scarce due to its higher value when in plate or masse. a designee of the king will inspect and seal cloth with lead to prevent deceit. cloth may not be tacked together before inspection. no cloth may be sold until sealed. heads of arrows shall be hardened at the points with steel and marked with the mark of the arrowsmith who made it, so they are not faulty. shoemakers and cordwainers may tan their leather, but all leather must be inspected and marked by a town official before it is sold. to prevent deceitful tanning, cordwainers shall not tan leather. tanners who make a notorious default in leather which is found by a cordwainer shall make a forfeiture. defective embroidery for sale shall be forfeited. no fishing net may be fastened or tacked to posts, boats, or anchors, but may be used by hand, so that fish are preserved and vessels may pass. no one may import any articles which could be made in the nation, including silks, bows, woolen cloths, iron and hardware goods, harness and saddlery, except printed books. the following merchandise shall not be brought into the nation already wrought: woolen cloth or caps, silk laces, ribbons, fringes, and embroidery, gold laces, saddles, stirrups, harnesses, spurs, bridles, gridirons, locks, hammers, fire tongs, dripping pans, dice, tennis balls, points, purses, gloves, girdles, harness for girdles of iron steel or of tin, any thing wrought of any treated leather, towed furs, shoes, galoshes, corks, knives, daggers, woodknives, thick blunt needles, sheers for tailors, scissors, razors, sheaths, playing cards, pins, pattens [wooden shoes on iron supports worn in wet weather], pack needles, painted ware, forcers, caskets, rings of copper or of gilt sheet metal, chaffing dishes, hanging candlesticks, chaffing balls, mass bells, rings for curtains, ladles, skimmers, counterfeit felt hat moulds, water pitchers with wide spouts, hats, brushes, cards for wool, white iron wire, upon pain of their forfeiture. one half this forfeiture goes to the king and the other half to the person seizing the wares. no sheep may be exported, because being shorn elsewhere would deprive the king of customs. no wheat, rye, or barley may be imported unless the prices are such that national agriculture is not hurt. clothmakers must pay their laborers, such as carders and spinsters, in current coin and not in pins and girdles and the like. the term "freemen" in the magna carta includes women. the election of a knight from a county to go to parliament shall be proclaimed by the sheriff in the full county so all may attend and none shall be commanded to do something else at that time. election is to be by majority of the votes and its results will be sealed and sent to parliament. electors and electees to parliament must reside in the county or be citizens or burgesses of a borough. to be an elector to parliament, a knight must reside in the county and have a freehold of land or tenements there of the value of at least 40s. per year, because participation in elections of too many people of little substance or worth had led to homicides, assaults, and feuds. (these "yeomen" were about one sixth of the population. most former electors and every leaseholder and every copyholder were now excluded. those elected for parliament were still gentry chosen by substantial freeholders.) london ordinances forbade placing rubbish or dung in the thames river or any town ditch or casting water or anything else out of a window. the roads were maintained with tolls on carts and horses bringing victuals or grains into the city and on merchandise unloaded from ships at the port. no carter shall drive his cart more quickly when it is unloaded than when it is loaded. no pie bakers shall sell beef pies as venison pies, or make any meat pie with entrails. to assist the poor, bread and ale shall be sold by the farthing. desertion by a soldier is penalized by forfeiture of all land and property. the common law held that a bailee is entitled to possession against all persons except the owner of the bailed property. former justice sir thomas littleton wrote a legal textbook describing tenancies in dower; the tenures of socage, knight's service, serjeanty, and burgage; estates in fee simple, fee tail, and fee conditional; inheritance and alienation of land. for instance, "also, if feoffment be made upon such condition, that if the feoffor pay to the feofee at a certain day, etc., 800s. forty pounds of money, that then the feoffor may reenter, etc., in this case the feoffee is called tenant in mortgage, ... and if he doth not pay, then the land which he puts in pledge upon condition for the payment of the money is gone from him for ever, and so dead as to the tenant, etc." joint tenants are distinguished from tenants in common by littleton thus: "joint-tenants are, as if a man be seised of certain lands or tenements, etc., and thereof enfeoffeth two, or three, or four, or more, to have and to hold to them (and to their heirs, or letteth to them) for term of their lives, or for term of another's life; by force of which feoffment or lease they are seised, such are joint-tenants. ... and it is to be understood, that the nature of joint-tenancy is, that he that surviveth shall have solely the entire tenancy, according to such estate as he hath, ..." "tenants in common are they that have lands or tenements in fee-simple, fee-tail, or for term of life, etc., the which have such lands and tenements by several title, and not by joint title, and neither of them knoweth thereof his severalty, but they ought by the law to occupy such lands or tenements in common pro indiviso [undivided], to take the profits in common. ...as if a man enfeoff two joint-tenants in fee, and the one of them alien that which to him belongeth to another in fee, now the other joint-tenant and the alienee are tenants in common, because they are in such tenements by several titles, ..." there are legal maxims and customs of ancient origin which have become well established and known though not written down as statutes. some delineated by christopher st. germain in "doctor and student" in 1518 are: 1. the spouse of a deceased person takes all personal and real chattels of the deceased. 2. for inheritance of land, if there are no descendant children, the brothers and sisters take alike, and if there are none, the next blood kin of the whole blood take, and if none, the land escheats to the lord. land may never ascend from a son to his father or mother. 3. a child born before espousals is a bastard and may not inherit, even if his father is the husband. 4. if a middle brother purchases lands in fee and dies without heirs of his body, his eldest brother takes his lands and not the younger brother. the next possible heir in line is the younger brother, and the next after him, the father's brother. 5. for lands held in socage, if the heir is under 14, the next friend to the heir, to whom inheritance may not descend, shall have the ward of his body and lands until the heir is 14, at which time the heir may enter. 6. for lands held by knight's service, if the heir is under 14, then the lord shall have the ward and marriage of the heir until the heir is 21, if male, or 14 (changed to 16 in 1285), if female. when of age, the heir shall pay relief. 7. a lease for a term of years is a real chattel rather than a free tenement, and may pass without livery of seisin. 8. he who has possession of land, though it is by disseisin, has right against all men but against him who has right. 9. if a tenant is past due his rent, the lord may distrain his beasts which are on the land. 10. all birds, fowls, and wild beasts of the forest and warren are excepted out of the law and custom of property. no property may be had of them unless they are tame. however, the eggs of hawks and herons and the like belong to the man whose land they are on. 11. if a man steals goods to the value of 12d., or above, it is felony, and he shall die for it. if it is under the value of 12d., then it is but petit larceny, and he shall not die for it, but shall be punished at the discretion of the judges. this not apply to goods taken from the person, which is robbery, a felony punishable by death. 12. if the son is attainted [convicted of treason or felony with the death penalty and forfeiture of all lands and goods] in the life of the father, and after he purchases his charter of pardon of the king, and after the father dies; in this case the land shall escheat to the lord of the fee, insomuch that though he has a younger brother, yet the land shall not descend to him: for by the attainder of the elder brother the blood is corrupt, and the father in the law died without heir. 13. a man declared outlaw forfeits his profits from land and his goods to the king. 14. he who is arraigned upon an indictment of felony shall be admitted, in favor of life, to challenge thirty-five inquirers (three whole inquests would have thirty-six) peremptorily. with cause, he may challenge as many as he has cause to challenge if he can prove it. such peremptory challenge shall not be admitted in a private suit. 15. an accessory shall not be put to answer before the principal. 16. if a man commands another to commit a trespass, and he does it, the one who made the command is a trespasser. 17. the land of every man is in the law enclosed from other, though it lies in the open field, and a trespasser in it may be brought to court. 18. every man is bound to make recompense for such hurt as his beasts do in the growing grain or grass of his neighbor, though he didn't know that they were there. 19. if two titles are concurrent together, the oldest title shall be preferred. 20. he who recovers debt or damages in the king's court when the person charged is not in custody, may within a year after the judgment take the body of the defendant, and commit him to prison until he has paid the debt and damages. 21. if the demandant or plaintiff, hanging his writ (writ pending in court), will enter into the thing demanded, his writ shall abate. 22. by the alienation of the tenant, hanging the writ, or his entry into religion, or if he is made a knight, or she is a woman and takes a husband hanging the writ, the writ shall not abate. 23. the king may disseise no man and no man may disseise the king, nor pull any reversion or remainder out of him. judicial procedure the prohibition against maintenance was given penalties in 1406 of 100s. per person for a knight or lower giving livery of cloth or hats, and of 40s. for the receiver of such. a person who brought such suit to court was to be given half the penalty. the justices of assize and king's bench were authorized to inquire about such practices. the statute explicitly included ladies and any writing, oath, or promise as well as indenture. excepted were guilds, fraternities, and craftsmen of cities and boroughs which were founded on a good purpose; universities; the mayor and sheriffs of london; and also lords, knights, and esquires in time of war. a penalty of one year in prison without bail was given. in 1468, there was a penalty of 100s. per livery to the giver of such, 100s. per month to the retainer or taker of such, and 100s. per month to the person retained. still this law was seldom obeyed. people took grievances outside the confines of the rigid common law to the chancellor, who could give equitable remedies under authority of a statute of 1285 (described in chapter 8). the chancery heard many cases of breach of faith in the "use", a form of trust in which three parties were involved: the holder of land, feofees to whom the holder had made it over by conveyance or "bargain and sale", and the beneficiary or receiver of the profits of the land, who was often the holder, his children, relatives, friends, an institution, or a corporation. this system of using land had been created by the friars to get around the prohibition against holding property. lords and gentry quickly adopted it. the advantages of the use were that 1) there was no legal restriction to will away the beneficial interest of the use although the land itself could not be conveyed by will; 2) it was hard for the king to collect feudal incidents because the feoffees were often unknown 3) the original holder was protected from forfeiture of his land in case of conviction of treason if the crown went to someone he had not supported. chancery gave a remedy for dishonest or defaulting feofees. chancery also provided the equitable relief of specific performance in disputes over agreements, for instance, conveyance of certain land, whereas the common law courts awarded only monetary damages by the writ of covenant. chancery ordered accounts to be made in matters of foreign trade because the common law courts were limited to accounts pursuant to transactions made within the nation. it also involved itself in the administration of assets and accounting of partners to each other. the chancellor took jurisdiction of cases of debt, detinue, and account which had been decided in other courts with oath-helping by the defendant. he did not trust the reliance on friends of the defendant swearing that his statement made in his defense was true. an important evidentiary difference between procedures of the chancery and the common law courts was that the chancellor could orally question the plaintiff and the defendant under oath. he also could order persons to appear at his court by subpoena, under pain of punishment, such as a heavy fine. whereas the characteristic award of the common law courts was seisin of land or monetary damages, chancery often enjoined certain action. because malicious suits were a problem, the chancery identified such suits and issued injunctions against taking them to any court. the chancery was given jurisdiction by statute over men of great power taking by force women who had lands and tenements or goods and not setting them free unless they bound themselves to pay great sums to the offenders or to marry them. a statute also gave chancery jurisdiction over servants taking their masters' goods at his death. justices of the peace, appointed by the crown, investigated all riots and arrested rioters, by authority of statute. if they had departed, the justices certified the case to the king. the case was then set for trial first before the king and his council and then at the king's bench. if the suspected rioters did not appear at either trial, they could be convicted for default of appearance. if a riot was not investigated and the rioters sought, the justice of the peace nearest forfeited 2,000s. justices of the peace were not paid. for complex cases and criminal cases with defendants of high social status, they deferred to the justices of assize, who rode on circuit once or twice a year. since there was no requirement of legal knowledge for a justice of the peace, many referred to the "boke of the justice of the peas" compiled about 1422 for them to use. manor courts still formally admitted new tenants, registered titles, sales of land and exchanges of land, and commutation of services, enrolled leases and rules of succession, settled boundary disputes, and regulated the village agriculture. all attorneys shall be examined by the royal justices for their learnedness in the law and, at their discretion, those that are good and virtuous shall be received to make any suit in any royal court. these attorneys shall be sworn to serve well and truly in their offices. attorneys may plead on behalf of parties in the hundred courts. a qualification for jurors was to have an estate to one's own use or one of whom other persons had estates of fee simple, fee tail, or freehold in lands and tenements, which were at least 40s. per year in value. in a plea of land worth at least 40s. yearly or a personal plea with relief sought at least 800s., jurors had to have land in the bailiwick to the value of at least 400s., because perjury was considered less likely in the more sufficient men. in criminal cases, there were many complaints made that the same men being on the grand assize and petty assize was unfair because prejudicial. so it became possible for a defendant to challenge an indictor for cause before the indictor was put on the petty assize. then the petty assize came to be drawn from the country at large and was a true petty or trial jury. jurors were separated from witnesses. justices of the peace were to have lands worth 267s. yearly, because those with less had used the office for extortion and lost the respect and obedience of the people. a sheriff was not to arrest, but to transfer indictments to the justices of the peace of the county. he had to reside in his bailiwick. the sheriff could be sued for misfeasance such as bribery in the king's court. impeachment was replaced with bill of attainder during the swift succession of parliaments during the civil war. this was a more rapid and efficient technique of bringing down unpopular ministers or political foes. there was no introduction of evidence, nor opportunity for the person accused to defend himself, nor any court procedure, as there was with impeachment. an example of a case of common law decided by court of king's bench is russell's case (1482) as follows: in the king's bench one thomas russell and alice his wife brought a writ of trespass for goods taken from alice while she was single. the defendant appeared and pleaded not guilty but was found guilty by a jury at nisi prius, which assessed the damages at 20 pounds. before the case was next to be heard in the king's court an injunction issued out of the chancery to the plaintiffs not to proceed to judgment, on pain of 100 pounds, and for a long time judgment was not asked for. then hussey cjkb. asked spelman and fincham, who appeared for the plaintiff if they wanted to ask for judgment according to the verdict. fincham [p]: we would ask for judgment, except for fear of the penalty provided for in the injunction, for fear that our client will be imprisoned by the chancellor if he disobeys. fairfax, jkb: he can ask for judgment in spite of the injunction, for if it is addressed to the plaintiff his attorney can ask for judgment, and vice versa. hussey, cjkb: we have consulted together on this matter among ourselves and we see no harm which can come to the plaintiff if he proceeds to judgment. the law will not make him pay the penalty provided in the injunction. if the chancellor wants to imprison him he must send him to the fleet prison, and, as soon as you are there you will inform us and we shall issue a habeas corpus returnable before us, and when you appear before us we shall discharge you, so you will not come to much harm, and we shall do all we can for you. nevertheless, fairfax said he would go to the chancellor and ask him if he would discharge the injunction. and they asked for judgment and it was held that they should recover their damages as assessed by the jury, but they would not give judgment for damages caused by the vexation the plaintiff suffered through the chancery injunction. and they said that if the chancellor would not discharge the injunction, they would give judgment if the plaintiff would ask for it. an example of a petition to chancery in the 1400s is hulkere v. alcote, as follows: to the right reverend father in god and gracious lord bishop of bath, chancellor of england, your poor and continual bedwoman lucy hulkere, widow of westminster, most meekly and piteously beseeches: that whereas she has sued for many years in the king's bench and in the common pleas for withholding diverse charters and evidences of land, leaving and delaying her dower of the manor of manthorpe in lincolnshire and also of the manor of gildenburton in northamptonshire, together with the withdrawing of her true goods which her husband gave her on his deathbed to the value of 100 pounds and more, under record of notary, sued against harry alcote and elizabeth of the foresaid gildenburton within the same county of northampton. and by collusion and fickle counsel of the foresaid harry and elizabeth his mother there was led and shown for him within the common pleas a false release, sealed, to void and exclude all her true suit by record of true clerks and attorneys of the aforesaid common pleas. of the which false release proved she has a copy to show. [all this is] to her great hindrance and perpetual destruction unless she have help and remedy by your righteous and gracious lordship in this matter at this time. that it please your noble grace and pity graciously to grant a writ subpoena to command the foresaid henry alcote and elizabeth alcote to come before your presence by a certain day by you limited in all haste that they may come to westminster to answer to this matter abovesaid, for love of god and a deed of charity, considering graciously that the foresaid harry alcote, with another fellow of his affinity who is not lately hanged for a thief in franceled her into a garden at gildenburton and put her down on the ground, laying upon her body a board and a summer saddle and great stones upon the board, the foresaid harry alcote sitting across her feet and the other at her head for to have slain her and murdered her, and by grace of our lady her motherin-law out walking heard a piteous voice crying and by her goodness she was saved and delivered, and otherwise would be dead. pledges to prosecute: john devenshire of berdevyle in essex and james kelom of london. returnable in michaelmas term. chapter 11 the times: 1485-1509 henry tudor and other exiles defeated and killed richard iii on bosworth field, which ends the civil war of the roses between the lancaster and york factions. as king, henry vii restored order to the nation. he was readily accepted as king because he was descended from the lancaster royal line and he married a woman from the york royal line. henry was intelligent and sensitive. he weighed alternatives and possible consequences before taking action. he was convinced by reason on what plans to make. in his reign of 24 years, henry applied himself diligently to the details of the work of government to make it work well. he strengthened the monarchy, shored up the legal system to work again, and provided a peace in the land in which a renaissance of the arts and sciences, culture, and the intellectual life could flourish. his primary strategy was enacting and enforcing statutes to shore up the undermined legal system, which includes the establishment of a new court: the court of the star chamber, to obtain punishment of persons whom juries were afraid to convict. it had no jury and no grand jury indictment. for speed and certainty, it tried people "ex officio": by virtue of its office. suspects were required to take an oath ex officio, by which they swore to truthfully answer all questions put to them. a man could not refuse to answer on the grounds of self-incrimination. the star chamber was the room in which the king's council had met since the 1300s. the most prevalent problems were: murder, robbery, rape or forced marriage of wealthy women, counterfeiting of coin, extortion, misdemeanors by sheriffs and escheators, bribing of sheriffs and jurors, perjury, livery and maintenance agreements, idleness, unlawful plays, and riots. interference with the course of justice was not committed only by lords on behalf of their retainers; men of humbler station were equally prone to help their friends in court or to give assistance in return for payment. rural juries were intimidated by the old baronage and their armed retinues. juries in municipal courts were subverted by gangs of townsmen. justices of the peace didn't enforce the laws. the agricultural work of the nation had been adversely affected. henry made policy with the advice of his council and had parliament enact it into legislation. he dominated parliament by having selected most of its members. many of his council were sons of burgesses and had been trained in universities. he chose competent and especially trusted men for his officers and commanders of castles and garrison. the fact that only the king had artillery deterred barons from revolting. also, the baronial forces were depleted due to the civil war of the roses. if henry thought a magnate was exercising his territorial power to the king's detriment, he confronted him with an army and forced him to bind his whole family in recognizances for large sums of money to ensure future good conduct. since the king had the authority to interpret these pledges, they were a formidable check on any activity which could be considered to be disloyal. the earl of kent, whose debts put him entirely at the king's mercy, was bound to "be seen daily once in the day within the king's house". henry also required recognizances from men of all classes, including clergy, captains of royal castles, and receivers of land. the higher nobility now consisted of about twenty families. the heavy fines by the star court put an end to conspiracies to defraud, champerty [an agreement with a litigant to pay costs of litigation for a share in the damages awarded], livery, and maintenance. the ties between the nobility and the justices of the peace had encouraged corruption of justice. so henry appointed many of the lesser gentry and attorneys as justices of the peace. also he appointed a few of his councilors as nonresident justices of the peace. there were a total of about thirty justices of the peace per county. their appointments were indefinite and most remained until retirement or death. henry instituted the yeomen of the guard to be his personal bodyguards night and day. many bills of attainder caused lords to lose their land to the king. most of these lords had been chronic disturbers of the peace. henry required retainers to be licensed, which system lasted until about 1600. henry was also known to exhaust the resources of barons he suspected of disloyalty by accepting their hospitality for himself and his household for an extended period of time. henry built up royal funds by using every available procedure of government to get money, by maximizing income from royal estates by transferring authority over them from the exchequer to knowledgeable receivers, and from forfeitures of land and property due to attainders of treason. he also personally reviewed all accounts and initialed every page, making sure that all payments were made. he regularly ordered all men with an income of 800s. [40 pounds] yearly from lands or revenue in hand to receive knighthoods, which were avoided by those who did not want to fight, or pay a high fee. as a result, the crown became rich and therefore powerful. henry's queen, elizabeth, was a good influence on his character. her active beneficence was a counteracting influence to his avaricious predisposition. when henry and his queen traveled through the nation, they often stopped to talk to the common people. they sometimes gave away money, such as to a man who had lost his hand. henry paid for an intelligent boy he met to go to school. henry had the first paper mill erected in the nation. he fostered the reading of books and the study of roman law, the classics, and the bible. he had his own library and gave books to other libraries. the age of entry to university was between 13 and 16. it took four years' study of grammar, logic, and rhetoric to achieve the bachelor of arts degree and another five before a master could begin a specialized study of the civil law, canon law, theology, or medicine. humanist studies were espoused by individual scholars at the three centers of higher learning: oxford university, cambridge university, and the inns of court in london. the inns of court attracted the sons of gentry and merchants pursuing practical and social accomplishments. the text of â�readingsâ� to members of the inns survive from this time. in the legalistic climate of these times, attorneys were prosperous. the enclosure of land by hedges for sheep farming continued, especially by rich merchants who bought country land for this purpose. often this was land that had been under the plough. any villeins were given their freedom and they and the tenants at will were thrown off it immediately. that land held by copyholders of land who had only a life estate, was withheld from their sons. only freeholders and copyholders with the custom of the manor in their favor were secure against eviction. but they could be pressured to sell by tactics such as breeding rabbits or keeping geese on adjoining land to the detriment of their crops, or preventing them from taking their traditional short cuts across the now enclosed land to their fields. the real line of distinction between rural people was one of material means instead of legal status: free or unfree. on one extreme was the well-to-do yeoman farmer farming his own land. on the other extreme was the agricultural laborer working for wages. henry made several proclamations ordering certain enclosures to be destroyed and tillage to be restored. other land put to use for sheep breeding was waste land. there were three sheep to every person. the nearby woodlands no longer had wolves or lynx who could kill the sheep. bears and elk are also gone.there were still deer, wild boar, wildcats and wild cattle in vast forests for the lords to hunt. wood was used for houses, arms, carts, bridges, and ships. the villages were still isolated from each other, so that a visitor from miles away was treated as warily as a foreigner. most people lived and died where they had been born. a person's dialect indicated his place of origin. the life of the village still revolved around the church. in some parishes, its activities were highly organized, with different groups performing different functions. for example, the matrons looked after a certain altar; the maidens raised money for a chapel or saw to the gilding of the images; the older men collected money for church repair; and the younger men organized the church ales and the church plays. wills often left property or rents from leased land to the church. church cows and sheep given could be leased out to villagers. church buildings given could be leased out, turned over to the poor, used to brew ale or bake bread for church ales, or used in general as a place for church activities. church ales would usually a good source of income; alehouses would be closed during the ceremonies and parishioners would contribute malt for the ale and grain, eggs, butter, cheese, and fruits. the largest town, london, had a population of about 70,000. other towns had a population less than 20,000. the population was increasing, but did not reach the level of the period just before the black death. in most large towns, there were groups of tailors and hatmakers, glovers, and other leatherworkers. some towns had a specialization due to their proximity to the sources of raw materials, such as nails, cutlery, and effigies and altars. despite the spread of wool manufacturing to the countryside, there was a marked increase of industry and prosperity in the towns. the principal streets of the larger towns were paved with gravel. guild halls became important and imposing architecturally. a large area of london was taken up by walled gardens of the monasteries and large mansions. there were some houses of stone and timber and some mansions of brick and timber clustered around palaces. in these, bedrooms increased in number, with rich bed hangings, linen sheets, and bolsters. bedspreads were introduced. nightgowns were worn. fireplaces became usual in all the rooms. tapestries covered the walls. carpets were used in the private rooms. some of the great halls had tiled floors. the old trestle tables were replaced by tables with legs. benches and stools had backs to lean on. a long gallery was used for exercise, recreation such as music and dancing, and private conversations. women and men wore elaborate headdresses. on the outer periphery are taverns and brothels, both made of mud and straw. houses are beginning to be built outside the walls of london along the thames because the collapse of the power of the great feudal lords decreased the fear of an armed attack on london. the merchants introduced this idea of living at a distance from the place of work so that they could escape living in the narrow, damp, and dark lanes of the city and have more light and space. indeed no baronial army ever threatened the king again. east of london were cattle pastures, flour mills, bakers, cloth-fulling mills, lime burners, brick and tile makers, bell founders, and ship repairing. there was a drawbridge on the south part of london bridge for defense and to let ships through. water sports were played on the thames such as tilting at each other with lances from different boats. the tailors' and linen armorers' guild received a charter in 1503 from the king as the "merchant tailors" to use all wares and merchandise, especially wool cloth, as well wholesale as retail, throughout the nation. some schooling was now being made compulsory in certain trades; the goldsmiths' company made a rule that all apprentices had to be able to read and write. there are guilds of ironmongers, salters, and haberdashers [hats and caps] a yeoman was the second-rank person of some importance, below a knight, below a gentleman, below a full member of a guild. in london, it meant the journeyman or second adult in a small workshop. these yeomen had their own fraternities and were often on strike. some yeomen in the large london industries, e.g. goldsmiths, tailors, cloth workers, who had served an apprenticeship started their own businesses in london suburbs outside the jurisdiction of their craft to search them. the merchant adventurers created a london fellowship confederacy to make membership of their society and compliance with its regulations binding on all cloth traders and to deal with common interests and difficulties such as taxation, relations with rulers, and dangers at sea. they made and enforced trading rules, chartered fleets, and organized armed convoys when the seas were unsafe and coordinated policies with henry vii. membership could be bought for a large fee or gained by apprenticeship or by being the son of a member. tudor government was paternalistic, curtailing cutthroat competition, fixing prices and wages, and licensing production under grants of monopoly to achieve a stable and contented society and a fair living for all. foreign trade was revived because it was a period of comparative peace. the nation sought to sell as much as possible to foreign nations and to buy at little as possible and thereby increase its wealth in gold and silver, which could be used for currency. ships weighed 200 tons and had twice the cargo space they had previously. their bows were more pointed and their high prows made them better able to withstand gales. the mariners' compass with a pivoting needle and circular dial with a scale was introduced. the scale gave precision to directions. ships had three masts. on the first was a square sail. on the second was a square sail with a small rectangular sail above it. on the third was a three cornered lateen sail. these sails make it possible to sail in almost any direction. this opened the seas of the world to navigation. at this time navigators kept their knowledge and expertise secret from others. adventurous seamen went on voyages of discovery, such as john cabot to north america in 1497, following italian christopher columbus' discovery of the new world in 1492. ferdinand magellan of portugal circumnavigated the world in 1519, proving uncontrovertedly that the earth was spherical rather than flat. theologians had to admit that jerusalem was not the center of the world. sailors overcame their fear of tumbling into one of the openings into hell that they believed were far out into the atlantic ocean and ceased to believe that a red sunset in the morning was due to a reflection from hell. seamen could venture forth into the darkness of the broad atlantic ocean with a fair expectation of finding their way home again. they gradually learned that there were no sea serpents or monsters that would devour foolhardy mariners. they learned to endure months at sea on a diet of salt beef, beans, biscuits, and stale water and the bare deck for a bed. but there were still mutinies and disobedient pilots. mortality rates among seamen were high. there are more navy ships, and they have some cannon. the blast furnace was introduced in the iron industry. a blast of hot air was constantly forced from a stove into the lower part of the furnace which was heating at high temperature a mixture of the iron ore and a reducing agent that combined with the oxygen released. after the iron was extracted, it was allowed to harden and then reheated and hammered on an anvil to shape it and to force out the hard, brittle impurities. blast furnace heat was maintained by bellows worked by water wheels. alchemists sought to make gold from the baser metals and to make a substance that would give them immortality. there was some thought that suffocation in mines, caverns, wells, and cellars was not due to evil spirits, but to bad air such as caused by "exhalation of metals". in 1502, german peter henlein invented the pocket watch and the mainspring inside it. there were morality plays in which the seven deadly sins: pride, covetousness, lust, anger, gluttony, envy, and sloth, fought the seven cardinal virtues: faith, hope, charity, prudence, temperance, justice, and strength, respectively, for the human soul. the play "everyman" demonstrates that every man can get to heaven only by being virtuous and doing good deeds in his lifetime. it emphasizes that death may come anytime to every man, when his deeds will be judged as to their goodness or sinfulness. card games were introduced. the legend of robin hood was written down. the commons gained the stature of the lords and statutes were regularly enacted by the "assent of the lords spiritual and temporal and the commons". the commons now assented instead merely requested enactments. the law royal proclamations clarifying, refining or amplifying the law had the force of parliamentary statutes. in 1486, the king proclaimed that "forasmuch as many of the king our sovereign lord's subjects [have] been disposed daily to hear feigned, contrived, and forged tidings and tales, and the same tidings and tales, neither dreading god nor his highness, utter and tell again as though they were true, to the great hurt of divers of his subjects and to his grievous displeasure: therefore, in eschewing of such untrue and forged tidings and tales, the king our said sovereign lord straitly chargeth and commandeth that no manner person, whatsoever he be, utter nor tell any such tidings or tales but he bring forth the same person the which was author and teller of the said tidings or tales, upon pain to be set on the pillory, there to stand as long as it shall be thought convenient to the mayor, bailiff, or other official of any city, borough, or town where it shall happen any such person to be taken and accused for any such telling or reporting of any such tidings or tales. furthermore the same our sovereign lord straitly chargeth and commandeth that all mayors, bailiffs, and other officers diligently search and inquire of all such persons tellers of such tidings and tales not bringing forth the author of the same, and them set on the pillory as it is above said." he also proclaimed in 1487 that no one, except peace officers, may carry a weapon, e.g. bows, arrows, or swords, in any town or city unless on a journey. he proclaimed in 1498 that no one may refuse to receive silver pennies or other lawful coin as payment regardless of their condition as clipped, worn, thin, or old, on pain of imprisonment and further punishment. a statute provided that: lords holding castles, manors, lands and tenements by knight's service of the king shall have a writ of right for wardship of the body as well as of the land of any minor heir of a deceased person who had the use [beneficial enjoyment of a trust] of the land for himself and his heirs as if the land had been in the possession of the deceased person. and if such an heir is of age, he shall pay relief to the lord as if he had inherited possession of the land. an heir in ward shall have an action of waste against his lord as if his ancestor had died seised of the land. that is, lands of "those who use" shall be liable for execution of his debt and to the chief lord for his relief and heriot, and if he is a bondsman, they may be seized by the lord. the king tried to retain the benefits of feudal incidents on land by this statute of uses, but attorneys sought to circumvent it by drafting elaborate and technical instruments to convey land free of feudal burdens. any woman who has an estate in dower, or for a term of life, or in [fee] tail, jointly with her husband, or only to herself, or to her use, in any manors, lands, tenements, or other hereditaments of the inheritance or purchase of her husband, or given to the said husband and wife in tail, or for term of life, by any of the ancestors of the said husband, or by any other person seised to the use of the said husband, or of his ancestors, who, by herself or with any after taken husband; discontinue, alienate, release, confirm with warranty or, by collusion, allow any recovery of the same against them or any other seised to their use, such action shall be void. then, the person to whom the interest, title, or inheritance would go after the death of such woman may enter and possess such premises. this does not affect the common law that a woman who is single or remarried may give, sell, or make discontinuance of any lands for the term of her life only. all deeds of gift of goods and chattels made of trust, to the use of the giver [grantor and beneficiary of trust], to defraud creditors are void. it is a felony to carry off against her will, a woman with lands and tenements or movable goods, or who is heir-apparent to an ancestor. this includes taking, procuring, abetting, or knowingly receiving a woman taken against her will. a vagabond, idle, or suspected person shall be put in the stocks for three days with only bread and water, and then be put out of the town. if he returns, he shall spend six days in the stocks. (a few years later this was changed to one and three days, respectively.) every beggar who is not able to work, shall return to the hundred where he last dwelled, is best known, or was born and stay there. no one may take pheasants or partridges by net snares or other devices from his own warren [breeding ground], upon the freehold of any other person, or else forfeit 200s., one half to the owner of the land and the other half to the suer. no one may take eggs of any falcon, hawk, or swan out of their nest, whether it is on his land or any other man's land, on pain of imprisonment for one year and fine at the king's will, one half to the king, and the other half to the holder of the land, or owner of the swan. no man shall bear any english hawk, but shall have a certificate for any imported hawk, on pain for forfeiture of such. no one shall drive falcons or hawks from their customary breeding place to another place to breed or slay any for hurting him, or else forfeit 200s. after examination by a justice of the peace, one half going to the king and one half to the suer. any person without a forest of his own who has a net device with which to catch deer shall pay 200s. for each month of possession. anyone stalking a deer with beasts anywhere not in his own forest shall forfeit 200s. anyone taking any heron by device other than a hawk or long bow shall forfeit 6s.8d. no one shall take a young heron from its nest or pay 10s. for each such heron. two justices may decide such an issue, and one tenth of the fine shall go to them. no man shall shoot a crossbow except in defense of his house, other than a lord or one having 2,667s. of land because their use had resulted in too many deer being killed. (the longbow was not forbidden.) no beasts may be slaughtered or cut up by butchers within the walls of a town, or pay 12d. for every ox and 8d. for every cow or other beast, so that people will not be annoyed and distempered by foul air, which may cause them sickness. no tanner may be a currier [dressed, dyed, and finished tanned leather] and no currier may be a tanner. no shoemaker [cordwainer] may be a currier and no currier may be a shoemaker. no currier shall curry hides which have not been tanned. no tanner shall sell other than red leather. no tanner may sell a hide before it is dried. no tanner may tan sheepskins. no long bow shall be sold over the price of 3s.4d. good wood for making bows may be imported without paying customs. no grained cloth of the finest making shall be sold for more than 16s., nor any other colored cloth for more than 11s. per yard, or else forfeit 40s. for every yard so sold. no hat shall be sold for more than 20d. and no cap shall be sold for more than 2s.8d., or else forfeit 40s. for each so sold. silver may not be sold or used for any use but goldsmithery or amending of plate to make it good as sterling, so that there will be enough silver with which to make coinage. each feather bed, bolster, or pillow for sale shall be stuffed with one type of stuffing, that is, dry pulled feathers or with clean down alone, and with no sealed feathers nor marsh grass, nor any other corrupt stuffings. each quilt, mattress, or cushion for sale shall be stuffed with one type of stuffing, that is, clean wool, or clean flocks alone, and with no horsehair, marsh grass, neatshair, deershair, or goatshair, which is wrought in lime fats and gives off an abominable and contagious odor when heated by a man's body, on pain of forfeiture of such. salmon shall be sold by standard volume butts and barrels. large salmon shall be sold without any small fish or broken-bellied salmon and the small fish shall be packed by themselves only, or else forfeit 6s.8d. herring shall be sold at standard volumes. the herring shall be as good in the middle and in every part of the package as at the ends of the package, or else forfeit 3s.4d. eels shall be sold at standard volumes, and good eels shall not be mixed with lesser quality eels, or else forfeit 10s. the fish shall be packed in the manner prescribed or else forfeit 3s.4d. for each vessel. fustians shall always be shorn with the long shear, so that it can be worn for at least two years. if an iron or anything else used to dress such injures the cloth so that it wears out after four months, 20s. shall be forfeited for each default, one half to the king and the other half to the suer. pewter and brass ware for sale shall be of the quality of that of london and marked by its maker, on pain of forfeiture of such, and may be sold only at open fairs and markets or in the seller's home, or else forfeit 200s. if such false ware is sold, its maker shall forfeit its value, one half to the king and one half to the searchers. anyone using false weights of such wares shall forfeit 20s., one half to the king and one half to the suer, or if he cannot pay this fine, to be put in the stocks until market day and then be put in the pillory all the market time. no alien nor denizen [foreigner allowed to reside in the nation with certain rights and privileges] may carry out of the nation any raw wool or any woolen cloth which has not been barbed, rowed, and shorn. silk ribbons, laces, and girdles of silk may not be imported, since they can be made in the nation. no one shall import wine into the nation, but on english ships, or else forfeit the wine, one half to the king and one half to the seizer of the wine. no one may take out of the nation any [male] horse or any mare worth more than 6s.8s. or under the age of three years, upon pain of forfeiture of such. however, a denizen may take a horse for his own use and not to sell. this is to stop losing horses needed for defense of the nation and to stop the price of a horse from going up. freemen of london may go to fairs and markets with wares to sell, despite the london ordinance to the contrary. merchants residing in the nation but outside london shall have free access to foreign markets without exaction taken of more than 133s. sterling by the confederacy of london merchants, which have increased their fee so much, 400s., that merchants not in the confederacy have been driven to sell their goods in london for less than they would get at a foreign market. exacting more is punishable by a fine of 400s. and damages to the grieved party of ten times the excess amount taken. for the privilege of selling merchandise, a duty of scavage shall be taken of merchant aliens, but not of denizens. any town official who allows disturbing of a person trying to sell his merchandise because he has not paid scavage, shall pay a fine of 400s. coin clipped or diminished shall not be current in payment, but may be converted at the king's mint into plate or bullion. anyone refusing to take coins with only normal wear may be imprisoned by the mayor, sheriff, bailiff, constable or other chief officer. new coins, which have a circle or inscription around the outer edge, will be deemed clipped if this circle or inscription is interfered with. the penalty for usury is placement in the pillory, imprisonment for half a year, and a fine of 400s. (the penalty was later changed to one half thereof.) lawbooks in use at the inns of court included "the books of magna carta with diverse old statutes", "doctor and student" by st. germain, "grand abridgment" by fitzherbert, and "new natura brevium" by lombard. judicial procedure this stastute made changes in the judicial process: the chancellor, treasurer, keeper of the king's privy seal, or two of them, with a bishop selected by them, and a temporal lord of the king's council selected by them, and the two chief justices of the king's bench shall constitute the court of the star chamber. it shall have the authority to call before it by writ or by privy seal anyone accused of "unlawful maintenances, giving of liveries, signs and tokens, and retainers by indentures, promises, oaths, writings, or otherwise embraceries of his subjects" and witnesses, and impose punishment as if convicted under due process of law. these laws shall now be enforced: if a town does not punish the murderer of a man murdered in the town, the town shall be punished. a town shall hold any man who wounds another in peril of death, until there is perfect knowledge whether the man hurt should live or die. upon viewing a dead body, the coroner should inquire of the killers, their abettors, and anyone present at the killing and certify these names. in addition, the murderer and accessories indicted shall be tried at the king's suit within a year of the murder, which trial will not be delayed until a private suit is taken. if acquitted at the king's suit, he shall go back to prison or let out with bail for the remainder of the year, in which time the slain man's wife or next of kin may sue. for every inquiry made upon viewing a slain body coroners shall be paid 13s.4d. out of the goods of the slayer or from a town not taking a murderer, but letting him escape. if the coroner does not make inquiry upon viewing a dead body, he shall be fined 100s. to the king. if a party fails to appear for trial after a justice has taken bail from him, a record of such shall be sent to the king. henry sat on the star chamber up to 1600, it heard many cases of forgery, perjury, riot, maintenance, fraud, libel, and conspiracy. it could mete out any punishment, except death or any dismemberment. this included life imprisonment, fines, pillory, whipping, branding, and mutilation. henry vii sat on it. if a justice of the peace does not act on any person's complaint, that person may take that complaint to another justice of the peace, and if there is no remedy then, he may take his complaint to a justice of assize, and if there is not remedy then, he may take his complaint to the king or the chancellor. there shall then be inquiry into why the other justices did not remedy the situation. if it is found that they were in default in executing the laws, they shall forfeit their commissions and be punished according to their demerits. justices of the peace shall make inquiry of all offenses in unlawful retaining, examine all suspects, and certify them to the king's bench for trial there or in the king's council, and the latter might also proceed against suspects on its own initiative on information given. perjury committed by unlawful maintenance, embracing, or corruption of officers, or in the chancery, or before the king's council, shall be punished in the discretion of the chancellor, treasurer, both the chief justices, and the clerk of the rolls. the star chamber, chancellor, king's bench and king and council have the power to examine all defendants, by oath or otherwise, to adjudge them convicted or attainted. they can also be found guilty by confession, examination, or otherwise. if a defendant denied doing the acts of which he is convicted, he was subject to an additional fine to the king and imprisonment. violations of statutes may be heard by the justices of assize or the justices of the peace, except treason, murder, and other felony. actions on the case shall be treated as expeditiously in the courts of the king's bench and common pleas as actions of trespass or debt. proclamation at four court terms of a levy of a fine shall be a final end to an issue of land, tenements, or other hereditaments and the decision shall bind persons and their heirs, whether they have knowledge or not of the decision, except for women-covert who were not parties, persons under the age of twenty-one, in prison, out of the nation, or not of whole mind, who are not parties. these may sue within five years of losing such condition. also, anyone not a party may claim a right, title, claim, or interest in the said lands, tenements, or other hereditaments at the time of such fine recorded, within five years after proclamations of the fine. a defendant who appeals a decision for the purpose of delaying execution of such shall pay costs and damages to the plaintiff for the delay. no sheriff, undersheriff, or county clerk shall enter any complaints in their books unless the complaining party is present. and no more complaints than the complaining party knows about shall be entered. the penalty is 40s. for each such false complaint, one half to the king and the other half to the suer after examination by a justice of the peace. this is to prevent extortion of defendants by false complaints. the justice shall certify this examination to the king, on pain of a fine of 40s. a bailiff of a hundred who does not do his duty to summon defendants shall pay a fine of 40s. for each such default, after examination by a justice of the peace. sheriffs' records of fines imposed and bailiffs' records of fines collected may be reviewed by a justice of the peace to examine for deceit. any sheriff allowing a prisoner to escape, whether from negligence or for a bribe, shall be fined, if the prisoner was indicted of high treason, at least 1,333s. for each escape. however, if the prisoner was in their keeping because of a suspicion of high treason, the fine shall be at least 800s.; and if indicted of murder or petite treason, at least 400s.; and if suspected of murder or petite treason, 200s.; and if suspected of other felonies, 100s. petite treason was that by a wife to her husband or a man to his lord. any person not responding to a summons for jury service shall be fined 12d. for the first default, and 2s. for the second, and double for each subsequent default. a pauper may sue in any court and be assigned a attorney at no cost to him. a justice of the peace to whom has been reported hunting by persons disguised with painted faces or visors or otherwise, may issue a warrant for the sheriff or other county officer to arrest such persons and bring them before the justice. such hunting in disguise or hunting at night or disobeying such warrant is a felony. this is to stop large mobs of disguised people from hunting together and then causing riots, robberies, and murders. benefit of clergy may be used only once, since this privilege has made clerics more bold in committing murder, rape, robbery, and theft. however, there will be no benefit of clergy in the case of murder of one's immediate lord, master, or sovereign. (this begins the gradual restriction over many years of benefit of clergy until it disappears. also, benefit of clergy was often disregarded in unpeaceful times.) for an issue of riot or unlawful assembly, the sheriff shall call 24 jurors, each of lands and tenements at least 20s. of charter land or freehold or 26s.8d. of copyhold or of both. for each default of the sheriff, he shall pay 400s. and if the jury acquits, then the justice, sheriff, and under-sheriff shall certify the names of any jurors maintained or embraced and their misdemeanors, or else forfeit 400s. any person proved to be a maintainer or embracer shall forfeit 400s. to the king and be committed to ward. the principal leaders of any riot or unlawful assembly shall be imprisoned and fined and be bound to the peace with sureties at a sum determined by the justices of the peace. if the riot is by forty people or heinous, the justices of peace shall certify such and send the record of conviction to the king. the king's steward, treasurer, and comptroller have authority to question by twelve discreet persons any servant of the king about making any confederacies, compassings, conspiracies, or imaginations with any other person to destroy or murder the king or one of his council or a lord. trial shall be by twelve men of the king's household and punishment as by felony in the common law. ohanges in the judicial process other than those made by statute were made by court decision. for instance, the royal justices decided that only the king could grant sanctuary for treason and not the church. after this, the church withdrew the right of sanctuary from second time offenders. the king's council has practically limited itself to cases in which the state has an interest, especially the maintenance of public order. chancery became an independent court rather than the arm of the king and his council. in chancery and the king's bench, the intellectual revival brought by humanism inspires novel procedures to be devised to meet current problems in disputed titles to land, inheritance, debt, breach of contract, promises to perform acts or services, deceit, nuisance, defamation, and the sale of goods. a new remedy is specific performance, that is, performance of an act rather than money damages. evidence is now taken from witnesses. various courts had overlapping jurisdiction. for instance, trespass could be brought in the court of common pleas because it was a civil action between two private persons. it could also be brought in the court of the king's bench because it broke the king's peace. it was advantageous for a party to sue for trespass in the king's court because there a defendant could be made to pay a fine to the king or be imprisoned, or declared outlaw if he did not appear at court. a wrongful step on the defendant's land, a wrongful touch to his person or chattels could be held to constitute sufficient force and an adequate breach of the king's peace to sustain a trespass action. a new form of action is trespass on the case, which did not require the element of force or of breach of the peace that the trespass offense requires. trespass on the case [or "case" for short] expands in usage to cover many types of situations. stemming from it is "assumpsit", which provided damages for breach of an oral agreement and for a written agreement without a seal. parliament's supremacy over all regular courts of law was firmly established and it was called "the high court of parliament", paradoxically, since it rarely came to function as a law court. when a land holder enfeoffs his land and tenements to people unknown to the remainderman in [fee] tail, so that he does not know who to sue, he may sue the receiver of the profits of the land and tenements for a remedy. and the receivers shall have the same advantages and defenses as the feoffees or as if they were tenants. and if any deceased person had the use for himself and his heirs, then any of his heirs shall have the same advantages and defenses as if his ancestor had died seised of the land and tenements. and all recoveries shall be good against all receivers and their heirs, and the feofees and their heirs, and the cofeoffees of the receivers and their heirs, as though the receivers were tenants indeed, or feofees to their use, or their heirs of the freehold of the land and tenements. if a person feoffs his land to other persons while retaining the use thereof for himself, it shall be treated as if he were still seised of the land. thus, relief and heriot will still be paid for land in socage. and debts and executions of judgments may be had upon the land and tenements. the penalty for not paying customs is double the value of the goods. the town of london shall have jurisdiction over flooding and unlawful fishing nets in that part of the thames river that flows next to it. the city of london shall have jurisdiction to enforce free passage of boats on the thames river in the city, interruption of which carries a fine of 400s., two-thirds to the king and one third to the suer. jurors impaneled in london shall be of lands, tenements, or goods and chattels, to the value of 133s. and if the case concerns debt or damages at least 133s, the jurors shall have lands, tenements, goods, or chattels, to the value of 333s. this is to curtail the perjury that has gone on with jurors of little substance, discretion, and reputation. a party grieved by a false verdict of any court in london may appeal to the hustings court of london, which hears common pleas before the mayor and aldermen. each of the twelve alderman shall pick from his ward four jurors of the substance of at least 2,000s. to be impaneled. if twenty-four of them find that the jurors of the petty jury has given an untrue verdict, each such juror shall pay a fine of at least 400s. and imprisonment not more than six months without release on bail or surety. however, if it is found that the verdict was true, then the grand jury may inquire if any juror was bribed. if so, such juror bribed and the defendant who bribed him shall each pay ten times the amount of the bribe to the plaintiff and be imprisoned not more than six months without release on bail or surety. the bishop's court in london had nine offenders a week by 1500. half of these cases were for adultery and sexual offenses, and the rest were for slander, blasphemy, missing church services, and breach of faith. punishment was penance by walking barefoot before the cross in the sunday procession dressed in a sheet and holding a candle. chapter 12 the times: 1509-1558 renaissance humanism came into being in the nation. in this development, scholars in london, oxford, and cambridge emphasized the value of classical learning, especially platonism and the study of greek literature as the means of better understanding and writing. they studied the original greek texts and became disillusioned with the filtered interpretations of the church, for example of the bible and aristotle. there had long been displeasure with the priests of the church. they were supposed to preach four times yearly, visit the sick, say the daily liturgies, and hear confessions at least yearly. but there were many lapses. many were not celibate, and some openly lived with a woman and had children. complaints about them included not residing within their parish community, doing other work such as raising crops, and taking too much in probate, mortuary fees, and marriage fees. probate fees had risen from at most 5s. to 60s. in the last hundred years. mortuary fees ranged from 1/3 to 1/9 of a deceased person's goods. sanctuary was abused. people objected to the right of arrest by ecclesiastical authorities. also, most parish priests did not have a theology degree or even a bachelor's degree, as did many laymen. in fact, many laymen were better educated than the parish priests. no one other than a laborer was illiterate in the towns. humanist grammar [secondary] schools were established in london by merchants and guilds. in 1510, the founder and dean of st. paul's school placed its management in the hands of london "citizens of established reputation" because he had lost confidence in the good faith of priests and noblemen. the sons of the nobility, attorneys, and merchants were starting to go to grammar school now instead of being taught at home by a tutor. at school, they mingled with sons of yeomen, farmers, and tradesmen, who were usually poor. the usual age of entry was six or seven. classical latin and greek were taught and the literature of the best classical authors was read. secondary education teachers were expected to know latin and have studied the ancient philosophers, history, and geography. the method of teaching was for the teacher to read textbooks to the class from a prepared curriculum. the students were taught in latin and expected not to speak english in school. they learned how to read and to write latin, to develop and amplify a theme by logical analysis, and to essay on the same subject in the narrative, persuasive, argumentative, commending, consoling, and inciting styles. they had horn books with the alphabet and perhaps a biblical verse on them. this was a piece of wood with a paper on it held down by a sheet of transparent horn. they also learned arithmetic (solving arithmetical problems and casting accounts). disobedience incurred flogging by teacher as well as by parents. spare the rod and spoil the child was the philosophy. schools now guarded the morals and behavior of students. there were two week vacations at christmas and at easter. royal grammar books for english and latin were proclaimed by henry in 1543 to be the only grammar book authorized for students. in 1545, he proclaimed a certain primer of prayers in english to be the only one to be used by students. the first school of humanist studies arose in oxford with the foundation of corpus christi college in 1516 by bishop richard fox. it had the first permanent reader or professor in greek. the professor of humanity was to extirpate all barbarisms by the study of cicero, sallust, valerius maximus, and quintilian. the reader of theology was to read texts of the holy fathers but not those of their commentators. oxford university was granted a charter which put the greater part of the town under control of the chancellor and scholars. the mayor of oxford was required to take an oath at his election to maintain the privileges and customs of the university. roman law and other regius professorships were founded by the king at oxford and cambridge. teaching of undergraduates was the responsibility of the university rather than of the colleges, though some colleges had live-in teachers. most colleges were exclusively for graduate fellows, though this was beginning to change. the university took responsibility for the student's morals and behavior and tutors sometimes whipped the undergraduates. for young noblemen, a more important part of their education than going to university was travel on the continent with a tutor. this exposure to foreign fields was no longer readily available through war or pilgrimage. the purpose was practical to learn about foreign people and their languages, countries, and courts. knowledge of the terrain, resources, prosperity, and stability of their countries was particularly useful to a future diplomatic or political career. understanding of the celestial world began to change. contemporary thought was that the nature of all things was to remain at rest, so that movement and motion had to be explained by causes. the earth was stationary and the heavens were spherical and revolved around the earth every twenty-four hours. the universe was finite. the firmament extended outward in a series of rotating, crystalline, ethereal spheres to which were attached the various points of celestial geography. first came the circle of the moon. the sun orbited the earth. the fixed stars rotated on an outer firmament. finally, there was the abode of god and his heavenly hosts. different principles ruled the celestial world; it was orderly, stable, ageless, and enduring. but the world of man changed constantly due to its mixed four elements of air, earth, fire, and water each trying to disentangle itself from the others and seeking to find its natural location. the heavenly spheres could affect the destinies of men, such as through fate, fortune, intelligence, cherubim, seraphim, angels, and archangels. astrologers read the celestial signs and messages. then a seed of doubt was cast on this theory by nicholaus copernicus, a timid monk in poland, who found inconsistencies in ptolemy's work, but saw similarity in the movements of the earth and other planets. he inferred from the "wandering" planetary movements with loops that their motion could be explained simply if they were revolving in circular paths around the sun, rather than around the earth. in his book of 1543, he also expressed his belief that the earth also revolved around the sun. this idea so shocked the world that the word "revolution" became associated with radical change. he thought it more likely that the earth rotated than that the stars moved with great speed in their large orbits. he proposed that the earth spins on its own axis about once every twenty-four hours, with a spin axis at about a 23 1/2 degree tilt from the orbital axis, thus explaining a slow change in the overall appearances of the fixed stars which had been observed since the time of ptolemy. he deduced from astronomical measurements that the correct order of the planets from the sun was: mercury, venus, earth, mars, jupiter, and saturn. the church considered his ideas heretical because contradictory to its dogma that man and the earth were the center of the universe. a central sun evoked images of pagan practices of sun worship. news of new ideas in science traveled quickly to english scholars and professionals the physicians of london were incorporated to oversee and govern the practice of medicine. a faculty of physicians was established at oxford and cambridge. a royal college of physicians was founded in london in 1518 by the king's physician. the college of physicians taught more practical medicine and anatomy than the universities. only graduates of the college of physicians or of oxford or cambridge were allowed to practice medicine or surgery. medical texts were hippocrates and galen. these viewed disease as only part of the process of nature without anything divine. they stressed empiricism, experience, collections of facts, evidences of the senses, and avoidance of philosophical speculations. some observations of hippocrates were: â�when sleep puts an end to delirium, it is a hopeful sign.â� â�when on a starvation diet, the patient should not be allowed to become fatigued.â� â�old men usually have less illness than young ones, but such as they have last, as a rule, till death.â� â�pleurisy, pneumonia, colds, sore throat, and headache are more likely to occur during winter seasons.â� â�when one oversleeps, or fails to sleep, the condition suggests disease." hippocrates had asserted that madness was simply a disease of the brain and then galen had agreed and advocated merciful treatment of the insane. galen's great remedies were proper diet, exercise, massage, and bathing. he taught the importance of a good water supply and good drainage. he advised that baking bread in a large oven was superior to cooking in a small oven, over ashes, or in a pan in wholesomeness, digestibility, and flavor. greek medicinal doctrines were assumed, such as that preservation of the health of the body was dependent on air, food, drink, movement and repose, sleeping and waking, excretion and retention, and the passions. it was widely known that sleep was restorative and that bad news or worry could spoil one's digestion. an italian book of 1507 showed that post-mortem examinations could show cause of death by gallstones, heart disease, thrombosis of the veins, or abscesses. in 1540 began the practice of giving bodies of hanged felons to surgeons to dissect. this was to deter the commission of felony. there was some feeling that dissection was a sacrilege, that the practice of medicine was a form of sorcery, and that illness and disease should be dealt with by prayer and/or atonement because caused by sin, the wrath of god, or by the devil. food that was digested was thought to turn into a vapor which passed along the veins and was concreted as blood, flesh, and fat. after 1546, there was a book listing hundreds of drugs with preparation directions, but their use and application was by trial and error. flemish physician andreas vesalius, secretly dissected human corpses, finding them hanging on public gibbets or competing with dogs for those incompletely buried in cemeteries. he begged doctors to allow him to examine the bodies of their fatal cases. he ingratiated himself with judges who determined the time and place of execution of criminals. in 1543 he published the first finely detailed description of human anatomy. in it, there was no missing rib on one side of man, and this challenged the theory of the woman eve having been made from a rib of the man adam. in the 1540s, ambroise pare from france, a barber-surgeon who was the son of a servant, was an army surgeon. wounds at this time were treated with boiling oil and spurting vessels were closed by being seared with a red-hot iron. after he ran out of boiling oil, he observed that the soldiers without this treatment were healing better than those with this treatment. so he advocated ceasing the practice of cauterizing wounds. he also began tying arteries with cord to stop their bleeding after amputation many other surgical techniques. in switzerland, theophrastus paracelsus, an astrologer and alchemist who later became a physician, did not believe that humor imbalance caused disease nor in treatment by bloodletting or purging. he believed that there were external causes of disease, e.g. toxic matter in food, contagion, defective physical or mental constitution, cosmic influences differing with climate and country, or affliction sent providence. he urged that wounds be kept clean rather than given poultices. in 1530, he pioneered the application of chemistry to physiology, pathology, and the treatment of disease by starting clinical diagnosis and treatment of disease by highly specific medicines, instead of by cure-alls. for instance, he used alkalis to treat disease, such as gout, indicated by certain substances in the urine, which also started urinalysis. he perceived that syphilis was caused by contagion and used mercury to cure it. he found curative powers also in opium, sulphur, iron, and arsenic. opium was made by drying and cooking the capsule of the poppy and was one of the few really effective early drugs. paracelsus urged alchemists to try to prepare drugs from minerals for the relief of suffering. he claimed to acquire knowledge of cures through spiritual contacts to occult wisdom. he believed that a human being has an invisible body as well as a visible one and that it is closely attuned to imagination and the spiritual aspect of an individual. he noticed that one's attitudes and emotions, such as anger, could affect one's health. he sometimes used suggestion and signs to help a patient form mental images, which translated into cures. he saw insanity as illness instead of possession by evil spirits. students were beginning to read for the bar by their own study of the newly available printed texts, treatises, and collections of statute law and of cases, instead of listening in court and talking with attorneys. in 1523, anthony fitzherbert wrote "boke of husbandry", which set forth the most current methods of arable farming, giving details of tools and equipment, advice on capital outlay, methods of manuring, draining, ploughing, and rick-building. it was used by many constantly, and was often carried around in the pocket. this began a new way to disseminate new methods in agriculture. he also wrote a "boke of surveying", which relied on the perch rod and compass dial, and gave instruction on how to set down the results of a survey. in 1533, gemma frisius laid down the principles of topographical survey by triangulation. this improved the quality of surveys and produced accurate plots. geoffrey chaucer's "canterbury tales" was a popular book. through chaucer, london english became a national standard and the notion of "correct pronunciation" came into being.the discoveries and adventures of amerigo vespucci, a portuguese explorer, were widely read. the north and south american continents were named for him. london merchant guilds began to be identified mainly with hospitality and benevolence instead of being trading organizations. twelve great companies dominated city politics and effectively chose the mayor and aldermen. they were, in order of precedence, mercers, grocers, drapers, fishmongers, goldsmiths, skinners, tailors, haberdashers, ironmongers, salters, vintners, and the clothworkers (composed from leading fullers and shearmen). the leading men of these guilds were generally aldermen and the guilds acted like municipal committees of trade and manufactures. then they superintended the trade and manufactures of london much like a government department. they were called livery companies and categorized their memberships in three grades: mere membership, livery membership, and placement on the governing body. livery members were distinguished by having the clothing of the brotherhood [its livery] and all privileges, and proprietary and municipal rights, in the fullest degree. they generally had a right to a place at the company banquets. they were invited by the governing body, as a matter of favor, to other entertainments. these liverymen were usually those who had bought membership and paid higher fees because they were richer. their pensions were larger than those of mere members. those with mere membership were freemen who had only the simple freedom of the trade. the masters were usually householders. the journeymen, yeomanry, bachelors were simple freemen. most of these companies had almshouses attached to their halls for the impoverished, disabled, and elderly members and their widows and children. for instance, many members of the goldsmiths had been blinded by the fire and smoke of quicksilver and some members had been rendered crazed and infirm by working in that trade. the freedom and rights of citizenship of the city could only be obtained through membership in a livery company. a lesser guild, the leathersellers, absorbed the glovers, pursers, and pouchmakers, some of whom became wage earners of the leathersellers. but others of these craftsmen remained independent. the whittawyers, who treated horse, deer, and sheep hides with alum and oil, had become wage earners for the skinners. londoners went to the fields outside the city for recreation and games. when farmers enclosed some suburban common fields in 1514, a crowd of young men marched out to them and, crying "shovels and spades", uprooted the hedges and filled in the ditches, thus reclaiming the land for their traditional games. the last major riot in london was aroused by a speaker on may day in 1517 when a thousand disorderly young men, mostly apprentices, defied the curfew and looted shops and houses of aliens. a duke with two thousand soldiers put it down in mid-afternoon, after which the king executed fifteen of the rioters. many english migrated to london. there were ambitious young men and women hopeful of betterment through employment, apprenticeship, higher wages, or successful marriage. on the other hand, there were subsistence migrants forced to leave their homes for food, work, or somewhere to live. there was much social mobility. for instance, between 1551 and 1553, of 881 persons admitted as freemen of london, 46 were the sons of gentlemen, 136 the sons of yeomen, and 289 the sons of farm workers. london grew in population about twice as fast as the nation. there are 26 wards of london as of 1550. this is the number for the next four centuries. each ward has an alderman, a clerk, and a chief constable. there are also in each ward about 100 to 300 elected officials including prickers, benchers, blackbootmen, fewellers [keepers of greyhounds], scribes, a halter-cutter, introducers, upperspeakers, under speakers, butlers, porters, inquestmen, scavengers, constables, watchmen, a beadle, jurymen, and common councilmen. the wardmote had inquest jurisdiction over immorality or bad behavior such as vagrancy, delinquency, illegitimacy, and disputes. this contributed greatly to social stability. in 1546, henry ordered the london brothels closed. a small gaol was established in the clink district of southwark, giving the name "clink" to any small gaol. london ordinances required journeymen to work from 6 a.m. to 6 p.m. in winter, with a total of 90 minutes breaks for breakfast, dinner, and an afternoon drink, for 7d. in the summer they had to work for two hours longer for 8d. at its peak in the 1540s the court employed about 200 gentlemen, which was about half the peerage and one-fifth of the greater gentry. henry issued a proclamation ordering noblemen and gentlemen in london not employed by the court to return to their country homes to perform their service to the king. though there was much agreement on the faults of the church and the need to reform it, there were many disagreements on what philosophy of life should take the place of church teachings. the humanist thomas more was a university trained intellectual. his book "utopia", idealized an imaginary society living according to the principles of natural virtue. in it, everything is owned in common and there is no need for money. all believe that there is a god who created the world and all good things and who guides men, and that the soul is immortal. but otherwise people choose their religious beliefs and their priests. from this perspective, the practices of other christians, scholastic theologians, priests and monks, superstition, and ritual looked absurd. more encouraged a religious revival. aristotle's position that virtuous men would rule best is successfully debated against plato's position that intellectuals and philosophers would be the ideal rulers. more believed the new humanistic studies should be brought to women as well as to men. he had tutors teach all his children latin, greek, logic, theology, philosophy, mathematics, and astronomy from an early age. his eldest daughter margaret became a recognized scholar and translated his treatise on the lord's prayer. other high class women became highly educated. they voiced their opinions on religious matters. in the 1530s, the duchess of suffolk spoke out for reform of the clergy and against images, relics, shrines, pilgrimages, and services in latin. she and the countess of sussex supported ministers and established seminaries for the spread of the reformed faith. more pled for proportion between punishment and crime. he urged that theft no longer be punished by death because this only encouraged the thief to murder his victim to eliminate evidence of the theft. he opined that the purpose of punishment was to reform offenders. he advocated justice for the poor to the standard of justice received by the rich. erasmus, a former monk, visited the nation for a couple of years and argued that reason should prevail over religious belief. he wrote the book "in praise of folly", which noted man's elaborate pains in misdirected efforts to gain the wrong thing. for instance, it questioned what man would stick his head into the halter of marriage if he first weighed the inconveniences of that life? or what woman would ever embrace her husband if she foresaw or considered the dangers of childbirth and the drudgery of motherhood? childhood and senility are the most pleasant stages of life because ignorance is bliss. old age forgetfulness washes away the cares of the mind. a foolish and doting old man is freed from the miseries that torment the wise and has the chief joy of life: garrulousness. the seekers of wisdom are the farthest from happiness; they forget the human station to which they were born and use their arts as engines with which to attack nature. the least unhappy are those who approximate the naiveness of the beasts and who never attempt what is beyond men. as an example, is anyone happier than a moron or fool? their cheerful confusion of the mind frees the spirit from care and gives it many-sided delights. fools are free from the fear of death and from the pangs of conscience. they are not filled with vain worries and hopes. they are not troubled by the thousand cares to which this life is subject. they experience no shame, fear, ambition, envy, or love. in a world where men are mostly at odds, all agree in their attitude towards these innocents. they are sought after and sheltered; everyone permits them to do and say what they wish with impunity. however, the usual opinion is that nothing is more lamentable than madness. the christian religion has some kinship with folly, while it has none at all with wisdom. for proof of this, notice that children, old people, women, and fools take more delight than anyone else in holy and religious things, led no doubt solely by instinct. next, notice that the founders of religion have prized simplicity and have been the bitterest foes of learning. finally, no people act more foolishly than those who have been truly possessed with christian piety. they give away whatever is theirs; they overlook injuries, allow themselves to be cheated, make no distinction between friends and enemies, shun pleasure, and feast on hunger, vigils, tears, labors, and scorn. they disdain life, and utterly prefer death. in short, they have become altogether indifferent to ordinary interests, as if their souls lived elsewhere and not in their bodies. what is this, if not to be mad? the life of christians is run over with nonsense. they make elaborate funeral arrangements, with candles, mourners, singers, and pallbearers. they must think that their sight will be returned to them after they are dead, or that their corpses will fall ashamed at not being buried grandly. christian theologians, in order to prove a point, will pluck four or five words out from different places, even falsifying the sense of them if necessary, and disregard the fact that their context was relevant or even contradicted their points. they do this with such brazen skill that our attorneys are often jealous of them. attorney christopher st. german wrote the legal treatise "doctor and student", in which he deems the law of natural reason to be supreme and eternal. the law of god and the law of man, as enunciated by the church and royalty, merely supplement the law of natural reason and may change from time to time. examples of the law of reason are: it is good to be loved. evil is to be avoided. do onto others as you would have them do unto you. do nothing against the truth. live peacefully with others. justice is to be done to every man. no one is to wrong another. a trespasser should be punished. from these is deduced that a man should love his benefactor. it is lawful to put away force with force. it is lawful for every man to defend himself and his goods against an unlawful power. like his father, henry viii dominated parliament. he used this power to reform the church of england in the 1530's. the protestant reformation cause, started in germany in 1517 by martin luther posting his thesis, had become identified with henry's efforts to have his marriage of eighteen years to the virtuous catherine annulled so he could marry a much younger woman: anne and have a son. the end of his six successive wives was: annulled, beheaded, died; annulled, beheaded, survived. henry viii was egotistical, arrogant, and selfindulgent. this nature allowed him to declare himself the head of the church of england instead of the pope. henry used and then discarded officers of state. one such was thomas wolsey, the son of a town grazier [one who pastures cattle and rears them for market] and butcher, who was another supporter of classical learning. he rose through the church, the gateway to advancement in a diversity of occupations of clergy such as secretary, librarian, teacher, attorney, doctor, author, civil servant, diplomat, and statesman. he was a court priest when he aligned himself with henry, both of whom wanted power and glory and dressed extravagantly. but he was brilliant and more of a strategist than henry. wolsey called himself a reformer and started a purge of criminals, vagrants and prostitutes within london, bringing many before the council. but most of his reforming plans were not brought to fruition, but ended after his campaign resulted in more power for himself. wolsey rose to be chancellor to the king and also archbishop of york. as the representative of the pope for england, he exercised almost full papal authority there. but he controlled the church in england in the king's interest. he was second only to the king and he strengthened the crown by consolidating power and income that had been scattered among nobles and officeholders. he also came to control the many courts. wolsey centralized the church in england and dissolved the smaller monasteries, the proceeds of which he used to build colleges at oxford and his home town. he was an impartial and respected justice. when wolsey was not able to convince the pope to give henry an annulment of his marriage, henry dismissed him and took his property, shortly after which wolsey died on his way to be imprisoned in the tower to be tried for treason. thomas. cromwell, a top royal official, was a self-taught attorney, arbitrator, merchant, and accountant. he was the son of a clothworker/blacksmith/brewer/innkeeper, like wolsey, he was a natural orator. he drafted and had passed legislation that created a new church of england. he had all men swear an oath to the terms of the succession statute. thomas more, the successor chancelllor to wolsey, was known for his honesty and was a highly respected man. more did not yield to henry's bullying for support for his statute declaring the succession to be vested in the children of his second marriage, and his statute declaring himself the supreme head of the church of england, instead of the pope. he did not expressly deny this supremacy statute, so was not guilty of treason under its terms. but silence did not save him. he was attainted for treason on specious grounds and beheaded. his conviction rested on the testimony of one perjured witness, who misquoted more as saying that parliament did not have the power to require assent to the supremacy statute because it was repugnant to the common law of christendom. henry ruled with an iron fist. in 1536, he issued a proclamation that "any rioters or those in an unlawful assembly shall return to their houses" or "we will proceed against them with all our royal force and destroy them and their wives and children." in 1538, he proclaimed that anyone hurting or maiming an officer while trying to make an arrest "shall lose and forfeit all their lands, goods, and chattel" and shall suffer perpetual imprisonment. moreover, if one murdered such an officer, he would suffer death without privilege of sanctuary or of clergy. in 1540, he proclaimed that there would be no shooting by handgun except on a shooting range. henry had parliament pass bills of attainder against many people. for the first time, harsh treatment of prisoners in the tower, such as placement in dungeons with little food, no bed, and no change of clothes, became almost a matter of policy. through his host of spies, cromwell heard what men said to their closest friends. words idly spoken were distorted into treasonable utterances. fear spread through the people. silence was a person's only possibility of safety. cromwell developed a technique for the management of the house of commons which lasted for generations. he promulgated books in defense of royal spiritual authority, which argued that canon law was not divine but merely human and that clerical authority had no foundation in the bible. a reformed english bible was put in all parish churches. reformers were licensed to preach. cromwell ordered sermons to be said which proclaimed the supremacy of the king. he instituted registers to record baptisms, marriages, and burials in every county, for the purpose of reducing disputes over descent and inheritance. he dissolved all the lesser monasteries. when cromwell procured a foreign wife for henry whom henry found unattractive, he was attainted and executed. henry now reconstructed his council to have a fixed membership, an official hierarchy based on rank, a secretariat, an official record, and formal powers to summon individuals before it by legal process. because it met in the king's privy lodgings, it was called the "privy council". it met daily instead of just during the terms of the westminster courts from late autumn to early summer. it communicated with the king through intermediaries, of whom the most important was the king's secretary. because it was a court council, part of it traveled with the king, while the other part conducted london business. when henry went to war in france, part of the council went with him, and part of it stayed to attend the queen regent. thomas cranmer, archbishop of canterbury, wrote the first english common book of prayer. with its use beginning in 1549, church services were to be held in english instead of latin. the celebration of the lord's supper was a communion among the parishioners and minister all sharing wine and bread. it replaced the mass, in which the priests were thought to perform a miraculous change of the substance of bread and wine into the body and blood of christ, which the priest then offered as a sacrifice for remission of pain or guilt. this reflected the blood sacrifice of christ dying on the cross. in the mass, only the priests drank the wine. the mass, miracles, the worship of saints, prayers for souls in purgatory, and pilgrimages to shrines such as that of thomas becket, were all to be discontinued. imprisonment or exile rather than death was made the penalty for heresy and blasphemy, and also for adultery. after the king dissolved the greater monasteries, he took and sold their ornaments, silver plate and jewelry, lead from roofs of their buildings, and finally much of the land itself. many maps of manors and lands were made at this time. three monasteries were converted into the first three treating hospitals in london, one for the diseased, one for the poor, and one, bethlehem (or "bedlam" for short), for the mentally ill. but there were still many poor, sick, blind, aged, and impotent people in the streets since the closure of the monasteries. in 1552, there were 2,100 people in need of relief, including 300 orphans, 600 sick or aged, 350 poor men overburdened with their children, 650 decayed householders, and 200 idle vagabonds. the poor often begged at parishes, where they spread disease. london then set up a poor relief scheme. the bridewell was established to set to work the idle, vagabonds, and prostitutes making feather bed ticks and wool-cards, drawing of wire, carding, knitting, and winding of silk. parishes were required to give money for the poor in 1563. other towns followed london's lead in levying a poor rate. henry used the proceeds from the sale of the monasteries for building many new palaces and wood ships for his navy. in war, these navy ships had heavy guns which could sink other ships. in peace time, these ships were hired out to traders. large ships were constructed in docks, made partly by digging and partly by building walls. in 1545, henry issued a proclamation ordering all vagabonds, ruffians, masterless men, and evil-disposed persons to serve him in his navy. the former land of the monasteries, about 30% of the country's land, was sold and resold, usually to great landowners, or leased. title deeds became important as attorneys sought the security that title could give. some land went to entrepreneurial cloth manufacturers, who converted the buildings for the manufacture of cloth. they bought the raw wool and hired craftsmen for every step of the manufacturing process to be done in one continuous process. this was faster than buying and selling the wool material between craftsmen who lived in different areas. also, it was more efficient because the amount of raw wool bought could be adjusted to the demand for cloth. many landowners now could live in towns exclusively off the rents of their rural land. rents were increased so much that tenants could not pay and were evicted. they usually became beggars or thieves. much of their former land was converted from crop raising to pasture for large herds of sheep. arable farming required many workers, whereas sheep farming required only one shepherd and herdsman. there were exceptional profits made from the export of wool cloth. but much raw wool was still exported. its price went up from 6s.8d. per tod [about 28 pounds] in 1340 to 20s.8d. in 1546. villeinage was now virtually extinct. but a lord could usually claim a small money-rent from the freeholder, sometimes a relief when his land was sold or passed at death, and occasionally a heriot from his heir. there was steady inflation. landlords made their leases short term so that they could raise rents as prices rose. copyholders gradually acquired a valuable right in their holdings: their rent became light less that a shilling an acre. the knights had 70% of the land, the nobles 10%, the church 10%, and king 5%. at least 85% of the population still lived in the country. rich traders built town or country houses in which the emphasis was on comfort and privacy. there was more furniture, bigger windows filled with glass, thick wallpaper, and formal gardens. use of thick, insulating wallpaper rose with the rise of paper mills. it was stenciled, hand-painted, or printed. some floors were tiled instead of stone or wood. they were still strewn with straw. the owners ate in a private dining room and slept in their own rooms with down quilts. their soap was white. they had clothing of white linen and white wool, leather slippers, and felt hats. men wore long tunics open at the neck and filled in with pleated linen and enormous puffed sleeves. the fortunes of landowners varied; some went into aristocratic debt by ostentatiously spending on building, clothes, food, and drink, and some became indebted by inefficient management. some had to sell their manors and dismiss their servants. all people generally had enough food because of the commercialization of agriculture. even the standard meal of the peasant was bread, bacon, cheese, and beer or cider, with beef about twice a week. also, roads were good enough for the transport of foodstuffs thereon. four-wheeled wagons for carrying people as well as goods. goods were also transported by the pulling of barges on the rivers from paths along the river. a plough with wheels was used as well as those without. henry made proclamations reminding people of the apparel laws, but they were difficult to enforce. henry also made a proclamation limiting the consumption of certain meat according to status. seven dishes were allowed to bishops, dukes, marquises, and earls; six to other temporal lords; five to justices, the king's council, sheriffs, and persons with an income of at least 200 pounds yearly or goods worth 2000 pounds; four to persons with an income of at least 100 pounds or goods worth 1000 pounds; and three dishes to persons with an income of at least 100 pounds or goods worth 500 pounds. there were limits on types of meat served, such as a maximum of one dish of great fowl such as crane, swan, and peacock; eight quail per dish; and twelve larks in a dish. people used tin or pewter dishes, platters, goblets, saucers, spoons, saltcellars, pots, and basins. they used soap to wash themselves, their clothes, and their dishes. a solid, waxy soap was from evaporating a mixture of goat fat, water, and ash high in potassium carbonate. they had bedcovers on their beds. cloth bore the mark of its weaver and came in many colors. cloth could be held together with pins that had a shank with a hook by which they were closed. they burned wood logs in the fireplaces in their houses. so much wood was used that young trees were required by statute to be given enough lateral space to spread their limbs and were not cut down until mature. the organ and the harp, precursor to the piano, were played. people went to barbers to cut their hair and to extract teeth. they went to people experienced with herbs, roots, and waters for treatment of skin conditions such as sores, cuts, burns, swellings, irritated eyes or scaly faces. for more complicated ailments, they went to physicians, who prescribed potions and medicines. they bought potions and medicines from apothecaries and pharmacists. the king, earls, who ruled counties, and barons, who had land and a place in the house of lords, still lived in the most comfort. the king's house had courtyards, gardens, orchards, wood-yards, tennis courts, and bowling alleys. the walls of the towns were manned by the citizens themselves, with police and watchmen at their disposal. in inns, travelers slept ten to a bed and there were many fleas and an occasional rat or mouse running through the rushes strewn on the floor. the inn provided a bed and ale, but travelers brought their own food. each slept with his purse under his pillow. in markets, sellers set up booths for their wares. they sold grain for making oatmeal or for sowing one's own ground. wine, butter, cheese, fish, chicken, and candles could also be bought. butchers bought killed sheep, lambs, calves, and pigs to cut up for selling. tanned leather was sold to girdlemakers and shoemakers. goods bought in markets were presumed not to be stolen, so that a purchaser could not be dispossessed of goods bought unless he had knowledge that they were stolen. the ruling group of the towns came to be composed mostly of merchants, manufacturers, attorneys, and physicians. some townswomen were independent traders. the governed class contained small master craftsmen and journeyman artisans, small traders, and dependent servants. the major streets of london were paved with stone, with a channel in the middle. more water conduits from hills, heaths, and springs were built to provide the citizens of london with more water. the sewers carried only surface water away. households were forbidden to use the sewers. privies emptied into cesspools. the merchant adventurers' fellowship brought virtually all adventurers under its control and organized and regulated the national cloth trade. it had a general court of the adventurers sitting in the london mercers' hall. various companies were granted monopolies for trade in certain areas of the world such as turkey, spain, france, venice, the baltic, and africa. these were regulated companies. that is they obtained complete control of a particular foreign market, but any merchant who cared to join the company, pay its dues, and obey its regulations, might share in the benefits of its monopoly. the companies generally confined trade to men who were primarily merchants and not shopkeepers. in 1553 explorer sebastian cabot formed the muscovy company, which was granted a monopoly in its charter for trade with north russia. it was oriented primarily to export english woolen cloth. it was the first company trading on a joint stock, which was arranged as a matter of convenience and safety. the risks were too great for any few individuals. it hired ships and assigned space to each member to ship his goods at his own risk. the dividend was returned to the subscribers of the capital they put in plus an appropriate share of any profits made on the voyage. the members began leaving their money with the company for the next voyage. a general stock grew up. in 1568 were the first industrial companies: mines royal, and mineral and battery works. the cloth, mining, iron, and woodcraft industries employed full-time workers on wages. in the ironworks and foundries, the furnace blowing engines were worked by water wheels or by a gear attached to donkeys or horses. the forge hammers were worked at first by levers and later by water wheels. the day and night hammering filled the neighborhood with their noise. land held in common was partitioned. there were leases of mansion houses, smaller dwelling houses, houses with a wharf having a crane, houses with a timber yard, houses with a garden, houses with a shed, shops, warehouses, cellars, and stables. lands with a dye-house or a brew-house were devised by will along with their dying or brewing implements. there were dairies making butter and cheese. citizens paid taxes to the king amounting to one tenth of their annual income from land or wages. merchants paid "forced loans" and benevolences. the national government was much centralized and had full-time workers on wages. a national commission of sewers continually surveyed walls, ditches, banks, gutters, sewers, ponds, bridges, rivers, streams, mills, locks, trenches, fishbreeding ponds, and flood gates. when low places were threatened with flooding, it hired laborers, bought timber, and hired carts with horses or oxen for necessary work. mayors of cities repaired water conduits and pipes under their cities' ground. the matchlock musket came into use, but did not replace the bow because its matchcord didn't remain lit in rainy weather. the matchlock was an improvement over the former musket because both hands could be used to hold and aim the matchlock musket because the powder was ignited by a device that touched a slow-burning cord to the powder when a trigger was pulled with one finger. after the break with rome, cooperation among villagers in church activities largely ceased. the altars and images previously taken care of by them disappeared and the paintings on the walls were covered with white or erased, and scripture texts put in their place. people now read the new bible, the "paraphrases" of erasmus, foxe's "book of martyrs", and the works of bishop jewel. the book of martyrs taught the duty and splendor of rising above all physical danger or suffering. the canon law of the church was abolished and its study prohibited. professorships of the civil law were founded at the two universities. the inns of court grew. attorneys had more work with the new laws passed to replace the church canons of the church. they played an important role in town government and many became wealthy. they acquired town houses in addition to their rural estates. church reforms included abolishing church sanctuaries. benefit of clergy was restricted more. parsons were allowed to marry. archbishops were selected by the king without involvement by the pope. decisions by archbishops in testamentary, matrimonial, and marriage annulment matters were appealable to the court of chancery instead of to the pope. the clergy's canons were subject to the king's approval. the control of the church added to the powers of the crown to summon and dissolve parliament, coin money, create peers [members of the house of lords who received individual writs of summons to parliament], pardon criminals, order the arrest of dangerous persons without customary process of law in times of likely insurrection, tax and call men to arms without the consent of parliament if the country were threatened with invasion. about 1550 there began indictments and executions for witchcraftery which lasted for about a century. one of the reasons for suspecting a woman to be a witch was that she lived alone, which was very unusual. henry ordered all alien anabaptists, who denied the validity of infant baptism, to leave the realm. the law offices may not be bought and sold, but only granted by justices of the royal courts. the king's proclamations shall be observed and kept as though they were acts of parliament. the penalty shall not be more than that stated in the proclamation, except for heresy. a person having land in socage or fee simple may will and devise his land by will or testament in writing. a person holding land by knight's service may will and devise by his last will and testament in writing part of his land to his wife and other parts of his land to his children, as long as 1/3 of entailed land is left to the king. anyone serving the king in war may alienate his lands for the performance of his will, and if he dies, his feoffees or executors shall have the wardship of his heir and land. a person who leases land for a term of years, even if by indenture or without a writing, may have a court remedy as do tenants of freehold for any expulsion by the lessor which is contrary to the lease, covenant, or agreement. these termers, their executors and assigns, shall hold and enjoy their terms against the lessors, their heirs and assigns. the lessor shall have a remedy for rents due or waste by a termer after recovering the land as well as if he had not recovered the land. a lord may distrain land within his fee for rents, customs, or services due without naming the tenant, because of the existence of secret feoffments and leases made by their tenants to unknown persons. anyone seised of land to the use or trust of other persons by reason of a will or conveyance shall be held to have lawful seisin and possession of the land, because by common law, land is not devisable by will or testament, yet land has been so conveyed, which has deprived married men of their courtesy, women of their dower, the king of the lands of persons attainted, the king of a year's profits from felons' lands, and lords of their escheats. (this was difficult to enforce.) a woman may not have both a jointure [promise of husband to wife of property or income for life after his death] and dower of her husband's land. (persons had purchased land to hold jointly with their wives) a sale of land must be in writing, sealed, and registered in its county with the clerk of that county. if the land is worth less than 40s. per year, the clerk is paid 12d. if the land exceeds 40s. yearly, the clerk is paid 2s.6d. an adult may lease his lands or tenements only by a writing under his seal for a term of years or a term of life, because many people who had taken leases of lands and tenements for a term of years or a term of lives had to spend a lot for repair and were then evicted by heirs of their lessors. a husband may not lease out his wife's land. no woman-covert, child, idiot, or person of insane memory may devise land by will or testament. the land of tenants-in-common may be partitioned by them so that each holds a certain part. no bishop or other official having authority to take probate of testaments may take a fee for probating a testament where the goods of the testator are under 100s., except that the scribe writing the probate of the testament may take 6d., and for the commission of administration of the goods of any man dying intestate, being up to 100s, may be charged 6d. where the goods are over 100s. but up to 800s. sterling, probate fees may be 3s.6d. at most, whereof the official may take 2s.6d. at most, with 12d. residue to the scribe for registering the testament. where the goods are over 800s. sterling, probate fees may be 5s. at most, whereof the official may take 2s.6d. at most, with 2s.6d. residue to the scribe, or the scribe may choose to take 1d. per 10 lines of writing of the testament. if the deceased had willed by his testament any land to be sold, the money thereof coming nor the profits of the land shall not be counted as the goods or chattel of the deceased. where probate fees have customarily been less, they shall remain the same. the official shall approve and seal the testament without delay and deliver it to the executors named in such testaments for the said sum. if a person dies intestate or executors refuse to prove the testament, then the official shall grant the administration of the goods to the widow of the deceased person, or to the next of kin, or to both, in the discretion of the official, taking surety of them for the true administration of the goods, chattels, and debts. where kin of unequal degree request the administration, it shall be given to the wife and, at his discretion, other requestors. the executors or administrators, along with at least two persons to whom the deceased was indebted, or to whom legacies were made, or, upon their refusal or absence, two honest kinsmen, shall make an inventory of the deceased's goods, chattels, ware, merchandise, as well moveable as not moveable, and take it upon their oaths to the official. no parish clergyman or other spiritual person shall take a mortuary fee or money from a deceased person with movable goods under the value of 133s., a deceased woman-covert, a child, a person keeping no house, or a traveler. only one mortuary fee may be taken of each deceased and that in the place where he most dwelled and lived. where the deceased's moveable goods are to the value of 133s. or more, above his debts paid, and under 600s., a mortuary up to 3s. 4d. may be taken. where such goods are 600s. or more and under 800s., mortuary up to 6s.8d. may be taken. where such goods are 800s. or above, mortuary up to 10s. may be taken. but where mortuaries have customarily been less, they shall remain the same. executors of a will declaring land to be sold for the payment of debts, performance of legacies to wife and children, and charitable deeds for the health of souls, may sell the land despite the refusal of other executors to agree to such sale. a man may not marry his mother, stepmother, sister, niece, aunt, or daughter. any clergy preaching contrary to the king's religious doctrine shall recant for the first offense. he shall abjure and bear a faggot (a badge resembling a faggot of wood which would have been used for burning him as a heretic) for the second offense. if he refuses to abjure or bear a faggot or offends a third time, he shall be burned and lose all his goods. if a layperson teaches, defends, or maintains a religious doctrine other than the king's, he shall recant and be imprisoned for twenty days for the first offense. he shall abjure and bear a faggot if he does not recant or offends a second time. he shall forfeit his goods and suffer perpetual imprisonment if he does not abjure or bear a faggot or offends a third time. the entry of an apprentice into a craft shall not cost more than 2s.6d. after his term, his entry shall not be more than 3s.4d. this replaced the various fees ranging from this to 40s. no master of a craft may require his apprentice to make an oath not to compete with him by setting up a shop after the term of his apprenticeship. no alien may take up a craft or occupation in the nation. no brewer of ale or beer to sell shall make wood vessels or barrels, and coopers shall use only good and seasonable wood to make barrels and shall put their mark thereon. every ale or beer barrel shall contain 32 of the king's standard gallons. the price of beer barrels sold to ale or beer brewers or others shall be 9d. an ale-brewer may employ in his service one cooper only to bind, hoop and pin, but not to make, his master's ale vessels. no butcher may keep a tanning-house. tanned leather shall be sold only in open fairs and markets and after it is inspected and sealed. only people living in designated towns may make cloth to sell, to prevent the ruin of these towns by people taking up both agriculture and cloth-making outside these towns. no one making cloth for sale may have more than one woolen loom or else forfeit 20s. this to protect the weavers' ability to maintain themselves and their families from rich clothiers who keep many looms and employ journeymen and unskillful persons at low wages. no one owning a fulling mill may own a weaving loom. no weaver may own a fulling mill. no one shall shoot in or keep in his house any handgun or crossbow unless he has 2,000s. yearly. no one may hunt or kill hare in the snow since their killing in great numbers by men other than the king and noblemen has depleted them. no one shall take an egg or bird of any falcon or hawk out of its nest on the king's land. no one may disguise himself with hidden or painted face to enter a forest or park enclosed with a wall for keeping deer to steal any deer or hare. ducks and geese shall not be taken with any net or device during the summer, when they haven't enough feathers to fly. but a freeholder of 40s. yearly may hunt and take such with long bow and spaniels. no one may sell or buy any pheasant except the king's officers may buy such for the king. no butcher may kill any calf born in the spring. no grain, beef, mutton, veal, or pork may be sold outside the nation. every person with 36 acres of agricultural land, shall sow one quarter acre with flax or hemp-feed. all persons shall kill crows on their land to prevent them from eating so much grain at sowing and ripening time and destroying hay stacks and the thatched roofs of houses and barns. they shall assemble yearly to survey all the land to decide how best to destroy all the young breed of crows for that year. every village and town with at least ten households shall put up and maintain crow nets for the destruction of crows. no land used for raising crops may be converted to pasture. no woods may be converted to agriculture or pasture. the efforts to enforce these proved these prohibitions were not successful. no one shall cut down or break up dikes holding salt water and fresh water from flooding houses and pastures. no one shall dump tin-mining debris, dung, or rubbish into rivers flowing into ports or take any wood from the walls of the port, so that ships may always enter at low tide. a person may lay out a new highway on his land where the old one has been so damaged by waterways that horses with carriages cannot pass, with the consent of local officials. only poor, aged, and disabled persons may beg. begging without a license is punishable by whipping or setting in the stocks 3 days with only bread and water. alien palm readers shall no longer be allowed into the nation, because they have been committing felonies and robberies. butchers may not sell beef, pork, mutton, or veal from carcasses for more than 1/2 penny and 1/2 farthing [1/4 penny] per pound. french wines may not sell at retail for more than 8d. per gallon. a barrel maker or cooper may sell a beer barrel for 10d. no longer may aliens bring books into the nation to sell because now there are sufficient printers and bookbinders in the nation. no one may buy fresh fish other than sturgeon, porpoise, or seal from an alien to put to sale in the nation. every person with an enclosed park where there are deer, shall keep two tall and strong mares in such park and shall not allow them to be mounted by any short horse, because the breeding of good, swift, and strong horses has diminished. a man may have only as many trotting horses for the saddle as are appropriate to his degree. no one may maintain for a living a house for unlawful games such as bowling, tennis, dice, or cards. no artificer, craftsman, husbandman, apprentice, laborer, journeyman, mariner, fisherman may play these games except at christmas under his master's supervision. noblemen and others with a yearly income of at least 2,000s. may allow his servants to play these games at his house. hemp or flax may not be watered in any river or stream where animals are watered. no one shall sell merchandise to another and then buy back the same merchandise within three months at a lower price. no one shall sell merchandise to be paid for in a year above the sum of 200s. per 2000s. worth of merchandise. no one shall sell or mortgage any land upon condition of payment of a sum of money before a certain date above the sum of 200s. per 2000s. per year. no one shall commit forgery by counterfeiting a letter made in another person's name to steal any money, goods, or jewels. no one shall libel by accusing another of treason in writing and leaving it in an open place without subscribing his own name to it. if any servant converts to his own use more than 40s. worth of jewels, money, or goods from caskets entrusted to him for safekeeping by a nobleman or other master or mistress, it shall be a felony. if a person breaks into a dwelling house by night to commit burglary or murder, is killed by anyone in that house, or a person is killed in self-defense, the killer shall not forfeit any lands or goods for the killing. killing by poisoning shall be deemed murder and is punishable by death. a person who has committed a murder, robbery, or other felony he has committed shall be imprisoned for his natural life and be burned on the hand, because those who have been exiled have disclosed their knowledge of the commodities and secrets of this nation and gathered together to practice archery for the benefit of the foreign realm. if he escapes such imprisonment, he shall forfeit his life. a person convicted or outlawed shall be penalized by loss of life, but not loss of lands or goods, which shall go to his wife as dower and his heirs. buggery may not be committed on any person or beast. no one shall slander or libel the king by speeches or writing or printing or painting. no one shall steal fish from a pond on another's land by using nets or hooks with bait or by drying up the pond. the mayor of london shall appoint householders to supervise watermen rowing people across the thames river because many people have been robbed and drowned by these rowers. all such boats must be at least 23 feet long and 5 feet wide. no man shall take away or marry any maiden under 16 years of age with an inheritance against the will of her father. any marriage solemnized in church and consummated shall be valid regardless of any prior agreement for marriage. sheriffs shall not lose their office because they have not collected enough money for the exchequer, but shall have allowances sufficient to perform their duties. butchers, brewers, and bakers shall not conspire together to sell their victuals only at certain prices. artificers, workmen and laborers shall not conspire to work only at a certain rate or only at certain hours of the day. no one shall sell any woolen cloth that shrinks when it is wet. no one shall use a rope or device to stretch cloth for sale so to make it appear as more in quantity than it is. no one may sell cloth at retail unless the town where it was dressed, dyed, and pressed has placed its seal on the cloth. cloth may not be pressed with a hot press, but only with a cold press. only artificers using the cutting of leather, may buy and sell tanned leather and only for the purpose of converting it into made wares. a beggar's child above five years may be taken into service by anyone that will. cattle may be bought only in the open fair or market and only by a butcher or for a household, team, or dairy, but not for resale live. butter and cheese shall not be bought to be sold again except at retail in open shop, fair, or market. no man may enter a craft of cloth-making until he has been an apprentice for seven years or has married a clothiers' wife and practicing the trade for years with her and her servants sorting the wool. no country person shall sell wares such as linen drapery, wool drapery, hats, or groceries by retail in any incorporated town, but only in open fairs. for every 60 sheep there shall be kept one milk cow because of the scarcity of cattle. no clothier may keep more than one wool loom in his house, because many weavers do not have enough work to support their families. no weaver may have more than two wool looms. no clothmaker, fuller, shearman, weaver, tailor, or shoemaker shall retain a journeyman to work by the piece for less than a three month period. every craftsman who has three apprentices shall have one journeyman. servants in agriculture and bargemen shall serve by the whole year and not by day wages. there shall be a sales tax of 12d. per pound of wool cloth goods for the crown. all people shall attend church on sundays to remember god's benefits and goodness to all and to give thanks for these with prayers and to pray to be given daily necessities. anyone fighting in church shall be excluded from the fellowship of the parish community. no one going from house to house to repair metal goods or sell small goods he is carrying may do this trade outside the town where he lives. no one may sell ale or beer without a license, because there have been too many disorders in common alehouses. offenders may be put in the town or county gaol for three days. only persons with yearly incomes of 1,333s. or owning goods worth 13,333s. may store wine in his house and only for the use of his household. no one may sell forged iron, calling it steel, because the edged tools and weapons made from it are useless. parish communities shall repair the highways for four days each year using oxen, cart, plough, shovels, and spades. the children of priests are declared legitimate so they may inherit their ancestor's lands. the priests may be tenants by courtesy after the death of their wives of such land and tenements that their wives happened to be seized of in fee simple or in fee tail, during the spousals. as of 1541, it was felony to practice witchcraft, sorcery, enchantment, or conjuration for the purpose 1) of obtaining money, or 2) to consume any person in his body, members, or goods, or 3) to provoke any person to unlawful love or lucre of money, or 4) to declare where stolen goods be, or 5) to despite christ, or 6) to pull down any cross. the year books of case decisions ceased in 1535. judicial procedure by royal proclamation of 1546, only those admitted by the chancellor and two chief justices may practice as counsel or in legal pleading in any of the king's courts. also, such a person must be serjeant-at-law, reader, utter barrister, or an eight-year fellow of one of the four houses of court, except in the court of common pleas. doctors of the civil law may practice in the church or chancery courts. justices shall tax inhabitants of the county for building gaols throughout the nation, for imprisonment of felons, to be kept by the sheriffs and repaired out of the exchequer. piracy at sea or in river or creek or port are adjudicated in counties because of the difficulty of obtaining witnesses from the ship, who might be murdered or who are on other voyages on the sea, for adjudication by the admiral. piracy and murder on ships is punishable by death only after confession or proof by disinterested witnesses. land held by tenants in common may be partitioned by court order, because some of these tenants have cut down all the trees to take the wood and pulled down the houses to convert the material to their own use. persons worth 800s. a year in goods shall be admitted in trials of felons in corporate towns although they have no freehold of land. each justice of the high courts may employ one chaplain. the privy council took the authority of the star chamber court, which organized itself as a specialty court. also, a specific group of full-time councilors heard pleas of private suitors. the bishops, nobility, and justices of the peace were commanded to imprison clergy who taught papal authority. justices of the peace and sheriffs were to watch over the bishops. the justices of assize were to assess the effectiveness of the justices of the peace as well as enforce the treason statute on circuit. the criminal court went outside the common law to prosecute political enemies, e.g. by dispensing with a jury. since the nation was now peaceful, expediency was no longer needed, so judicial procedures again became lengthy and formal with records. the chancery court enforced the obligations known as trusts, in the name of equity and good conscience. it adopted every analogy that the common law presented. its procedure was to force the defendant to answer on oath the charges that were brought against him. all pleadings and usually testimony was put into writing. much evidence consisted of written affidavits. there was no jury. the chancery court did not record its decisions apparently because it did not see itself s bound by precedents. witnesses could be sworn in to state pertinent facts necessary for full understanding and adjudication of cases, because they are reliable now that there is no unlicensed livery and maintenance and because jurors no longer necessarily know all the relevant facts. when acting as the highest court, the house of lords was presided over by the chancellor, who sat on his prescribed place on the wool sacks. it had the following jurisdiction: trial of peers for high treason and serious felony, appeals on writs of error from courts of the common law, and impeachment. the house of lords served as judge of impeachment cases, whereas the house of commons served as fact finders. the leet court and sheriff's turn court have much less jurisdiction. they may dispose of presentments of trespasses and nuisances, but not felony or question of freehold. such presentments are made by a set of at least twelve men, and the presented person is amerced there and then. the humanist intellectual revival caused the church courts to try to eliminate contradictions with state law, for instance in debt, restitution, illegitimacy, and the age of legal majority. chapter 13 the times: 1558-1601 queen elizabeth i was intelligent, educated, and wise about human nature. when young, she was a brilliant student and studied the bible, philosophy, literature, oratory, and greek and roman history. she wrote in english, latin, french, and italian. she read greek, including the greek testament, greek orators, and greek dramatists, at age seven, when the first professorship of greek was founded at cambridge university. learning from books was one of her highest values throughout her life. she read so much and was so influenced by cicero that she acquired his style of writing. her chief secretary william cecil was so guided by cicero's "offices" that he carried a copy in his pocket. cicero opined that government officials had a duty to make the safety and interest of citizens its greatest aim and to influence all their thoughts and endeavors without ever considering personal advantage. government was not to serve the interest of any one group to the prejudice or neglect of the rest, for then discord and sedition would occur. furthermore, a ruler should try to become loved and not feared, because men hated those whom they feared, and wished themdead. therefore obedience proceeding from fear could not last, whereas that which was the effect of love would last forever. an oppressor ruling by terror would be resented by the citizens, who in secret would choose a worthier person. then liberty, having been chained up, would be unleashed more fiercely than otherwise. to obtain the peoples' love, a ruler should be kind and bountiful. to obtain the peoples' trust, a ruler should be just, wise, and faithful. to demonstrate this, a ruler should be eloquent in showing the people an understanding better than theirs, the wisdom to anticipate events, and the ability to deal with adverse events. and this demonstration should be done with modesty. one cannot get the peoples' trust by vain shows, hypocritical pretenses, composed countenances, and studied forms of words. the first goal of a ruler is to take care that each individual is secured in the quiet enjoyment of his own property. the second goal is to impose taxes that are not burdensome. the third goal is to furnish the people with necessaries. the law should be enforced keeping in mind that its fundamental purpose is to keep up agreement and union among citizens. elizabeth cared deeply for the welfare of all citizens of whatever class. she was sensitive to public opinion and was loved by her people. she respected truth and was sincere, avoiding guile or fraud. she claimed that she had never dishonored her tongue with a falsehood to anyone. she expected that any covert manipulations by monarchs would be found out and therefore would damage their credibility. "it becometh therefor all of our rank to deal sincerely; lest if we use it not, when we do it we be hardly believed." she was frugal and diplomatically avoided unnecessary wars, saying that her purse was the pockets of her people. her credit reputation was so good that she could always get loans at small rates of interest from other countries. england was a small protestant nation threatened by the larger catholic nations of france and spain. when elizabeth flirted and talked of marriage with foreign princes, they laid aside any thoughts of conquering england by war, hoping to obtain it my marriage. not only did she not seek to conquer other lands, but she turned down an invitation to rule the netherlands. elizabeth prayed for divine guidance as in this prayer: "almighty god and king of all kings, lord of heaven and earth, by whose leave earthly princes rule over mortals, when the most prudent of kings who administered a kingdom, solomon, frankly confessed that he was not capable enough unless thou broughtst him power and help, how much less am i, thy handmaid, in my unwarlike sex and feminine nature, adequate to administer these thy kingdoms of england and of ireland, and to govern an innumerable and warlike people, or able to bear the immense magnitude of such a burden, if thou, most merciful father didst not provide for me (undeserving of a kingdom) freely and against the opinion of many men. instruct me from heaven, and give help so that i reign by thy grace, without which even the wisest among the sons of men can think nothing rightly. send therefore, o inexhaustible fount of all wisdom, from thy holy heaven and the most high throne of thy majesty, thy wisdom to be ever with me, that it may keep watch with me in governing the commonwealth, and that it may take pains, that it may teach me, thy handmaid, and may train me that i may be able to distinguish between good and evil, equity and iniquity, so as rightly to judge thy people, justly to impose deserved punishments on those who do harm, mercifully to protect the innocent, freely to encourage those who are industrious and useful to the commonwealth. and besides, that i may know what is acceptable to thee alone, vouchsafe that i wish, dare, and can perform it without paying respect to any earthly persons or things. so that when thou thyself, the just judge, who askest many and great things from those to whom many and great things are entrusted, when thou requirest an exact accounting, charge me not with badly administering my commonwealth and kingdom. but if by human thoughtlessness or infirmity thy handmaid strays from the right in some thing, absolve me of it by thy mercy, most high king and most mild father, for the sake of thy son jesus christ; and at the same time grant that after this worldly kingdom has been exacted of me, i may enjoy with thee an eternity in thy heavenly and unending kingdom, through the same jesus christ, thy son and the assessor of thy kingdom, our lord and mediator. to whom with thee and with the holy spirit, one everlasting king, immortal, invisible, only-wise god, be all honor and glory forever and ever, amen.â� elizabeth promoted commercial speculations, which diffused a vast increase of wealth among her people. the elizabethan era was one of general prosperity. her good spirits and gayness created a happy mood in the nation. she loved dancing and madrigal music was popular. she came to dress elaborately and fancifully. her dresses were fitted not only at the waist, but along the torso by a long and pointed bodice stiffened with wood, steel, or whalebone. her skirt was held out with a petticoat with progressively larger hoops. there were two layers of skirt with the top one parted to show the bottom one. the materials used were silks, satins, velvets, and brocades. on her dress were quiltings, slashings, and embroidery. it was covered with gold ornaments, pearls, gems, and unusual stones from america. she wore decorated gloves. ladies copied her and discarded their simple over-tunics for elaborate dresses. the under-tunic became a petticoat and the over-tunic a dress. often they also wore a fan with a mirror, a ball of scent, a miniature portrait of someone dear to them, and sometimes a watch. single ladies did not wear hats, but had long, flowing hair and low cut dresses showing their bosoms. married ladies curled their hair and wore it in high masses on their heads with jewels interwoven into it. both gentlemen and ladies wore hats both indoors and outside and large, pleated collars around their necks (with the newly discovered starch), perfume, rings with stones or pearls, and high-heeled shoes. gentlemen's' tight sleeves, stiffened and fitted doublet with short skirt, and short cloak were ornamented and their silk or velvet hats flamboyant, with feathers. at their leather belts they hung pouches and perhaps a watch. they wore both rapiers [swords with cutting edges] and daggers daily as there were many quarrels. there were various artistic beard cuts and various lengths of hair, which was often curled and worn in ringlets. barbers sought to give a man a haircut that would favor his appearance, for instance a long slender beard for a round face to make it seem narrower and a broad and large cut for a lean and straight face. men now wore stuffed breeches and stockings instead of long hosen. some wore a jeweled and embroidered codpiece between their legs to emphasize their virility. both gentlemen and ladies wore silk stockings and socks over them and then boots. coats dipped in boiled linseed oil with resin served as raincoats. both men and women wore velvet or wool full length nightgowns with long sleeves and fur lining and trimming to bed, which was the custom for the next 150 years. fashions changed every year due to the introduction of cheaper, lighter, and less durable cloths by immigrant craftsmen. when elizabeth became old, she had a wig made to match her youthful long red hair. other ladies then began wearing wigs. every few years, elizabeth issued a proclamation reminding people of the apparel laws and reiterating certain provisions which had been disregarded. for instance, only the royal family and dukes and marquises in mantles [cloaks] of the garter could wear the color purple. one had to be at least an earl to wear gold or silver or sable. only dukes, marquises, earls and their children, barons, and knights of the order could wear imported wool, velvet, crimson, scarlet, or blue, or certain furs., except that barons' sons, knights, or men who could dispend at least 200 pounds yearly could wear velvet in gowns or coats, embroidery, and furs of leopards. spurs, swords, rapiers, daggers, and woodknives were restricted to knights and barons' sons or higher. a man who could dispend at least 100 pounds per year could wear taffeta, satin, damask, or cloth made of camels' hair and silk, in his outer garments. one had to be the son and heir or the daughter of a knight or wife of said son or a man who could dispend 20 pounds yearly or had 200 pounds worth in goods to wear silk in one's hat, bonnet, nightcap, girdle, scabbard, or hose. yeomen, husbandmen, serving men, and craftsmen were very restricted in what they could wear. poor men wore skirted fustian tunics, loose breeches, and coarse stockings or canvas leggings. children wore the same type of apparel as their elders. they were given milk at meals for good growth. it was recognized that sickness could be influenced by diet and herbs. sickness was still viewed as an imperfect balance of the four humors. women spent much of their time doing needlework and embroidery. since so many of the women who spent their days spinning were single, unmarried women became known as "spinsters". there were many lifestyle possibilities in the nation: gentleman, that is one who owned land or was in a profession such as a attorney, physician, priest or who was a university graduate, government official, or a military officer; employment in agriculture, arts, sciences; employment in households and offices of noblemen and gentlemen; self-sufficient farmers with their own farm; fisherman or mariner on the sea or apprentice of such; employment by carriers of grain into cities, by market towns, or for digging, seeking, finding, getting, melting, fining, working, trying, making of any silver, tin, lead, iron, copper, stone, coal; glassmaker. typical wages in the country were: field-workers 2-3d. a day, ploughmen 1s. a week with board, shepherd 6d. a week and board, his boy 2 1/2 d., hedgers 6d. a day, threshers 3-7d. depending on the grain, thatching for five days 2d., master mason or carpenter or joiner 4d. a day and food or 8d. without food, a smith 2d. a day with food, a bricklayer 2 1/2 d. a day with food, a shoemaker 2d. a day with food. these people lived primarily on food from their own ground. there was typical work for each month of the year in the country: january ditching and hedging after the frost broke, february catch moles in the meadows, march protect the sheep from prowling dogs, april put up hop poles, sell bark to the tanner before the timber is felled, fell elm and ash for carts and ploughs, fell hazel for forks, fell sallow for rakes, fell horn for flails, may weed and hire children to pick up stones from the fallow land, june wash and shear the sheep, july hay harvest, august wheat harvest, september and october gather the fruit, sell the wool from the summer shearing, stack logs for winter, buy salt fish for lent in the town and lay it up to dry, november have the chimneys swept before winter, thresh grain in the barn, december grind tools, repair yokes, forks, and farm implements, cover strawberry and flower beds with straw to protect them from the cold, split kindling wood with beetle and wedge, tan their leather, make leather jugs, make baskets for catching fish, and carve wood spoons, plates, and bowls. there was a wave of building and renovation activity in town and country. housing is now, for the first time, purely for dwelling and not for defense. houses were designed symmetrically with decorative features instead of a haphazard addition of rooms. windows were large and put on the outer walls instead of just inside the courtyard. a scarcity of timber caused proportionally more stone to be used for dwelling houses and proportionately more brick to be used for royal palaces and mansions. the rest of the house was plaster painted white interspersed with vertical, horizontal, and sloping timber, usually oak, painted black. there were locks and bolts for protection from intruders. the hall was still the main room, and usually extended up to the roof. richly carved screens separated the hall from the kitchen. the floors were stone or wood, and sometimes tile. they were often covered with rushes or plaited rush mats, on which incomers could remove the mud from their boots. some private rooms had carpets on the floor. walls were smoothly plastered or had carved wood paneling to control drafts. painted cloths replaced tapestries on walls. family portraits decorated some walls, usually in the dining room. iron stands with candles were hung from the ceiling and used on tables. plastered ceilings and a lavish use of glass made rooms lighter and cozy. broad and gracious open stairways with carved wood banisters replaced the narrow winding stone steps of a circular stairwell. most houses had several ornamented brick chimneys and clear, but uneven, glass in the windows. there were fireplaces in living rooms, dining rooms, kitchen, and bedrooms, as well as in the hall and great chamber. parlors were used for eating and sitting only, but not for sleeping. closets were rooms off bedrooms in which one could read and write on a writing table, and store one's books, papers, maps, calendar, medals, collections, rarities, and oddities. sometimes there was a study room or breakfast room as well. a gentleman used his study not only to read and to write, but to hold collections of early chronicles, charters, deeds, copied manuscripts, and coins that reflected the budding interest in antiquarianism; and to study his family genealogy, for which he had hired someone to make an elaborate diagram. he was inclined to have a few classical, religious, medical, legal, and political books there. rooms were more spacious than before and contained oak furniture such as enclosed cupboards; cabinets; buffets from which food could be served; tables, chairs and benches with backs and cushions, and sometimes with arms; lidded chests for storing clothes and linens, and occasionally chests of drawers or wardrobes, either hanging or with shelves, for clothes. chests of drawers developed from a drawer at the bottom of a wardrobe. carpeting covered tables, chests, and beds. great houses had a wardrobe chamber with a fireplace in front of which the yeoman of the wardrobe and his assistants could repair clothes and hangings. separate bedchambers replaced bed-sitting rooms. bedrooms all led out of each other. the lady's chamber was next to her lord's chamber, and her ladies' chambers were close to her chamber. but curtains on the four-poster beds with tops provided privacy and warmth. beds had elaborately carved bedsteads, sheets, and a feather cover as well as a feather mattress. often family members, servants, and friends shared the same bed for warmth or convenience. each bedroom typically had a cabinet with a mirror, e.g. of burnished metal or crystal, and comb on top. one brushed his teeth with tooth soap and a linen cloth, as physicians advised. each bedroom had a pitcher and water bowl, usually silver or pewter, for washing in the morning, and a chamber pot or a stool with a hole over a bucket for nighttime use, and also fragrant flowers to override the unpleasant odors. the chamber pots and buckets were emptied into cesspits. a large set of lodgings had attached to it latrines consisting of a small cell in which a seat with a hole was placed over a shaft which connected to a pit or a drain. the servants slept in turrets or attics. elizabeth had a room just for her bath. breakfast was substantial, with meat, and usually eaten in one's bedroom. the great hall, often hung around with bows, pikes, swords, and guns, was not abandoned, but the family took meals there only on rare occasions. instead they withdrew to a parlor, for domestic use, or the great chamber, for entertaining. parlors were situated on the ground floor: the family lived and relaxed there, and had informal meals in a dining parlor. more than medieval castles and manor houses, mansions were designed with privacy in mind. the formal or "state" rooms were on the first floor above the ground floor, usually comprising a great chamber, a withdrawing chamber, one or more bedchambers, and a long gallery. each room had carved chairs and cabinets. taking a meal in the great chamber involved the same ceremonial ritual as in the manorial great chamber dating from the 1400s. the table was covered with a linen cloth. the lady of the house sat in a chair at the upper end of the table and was served first. people of high rank sat at her end of the table "above" the fancy silver salt cellar and pepper. people of low rank sat "below" it near the other end of the table. grace was said before the meal. noon dinner and supper were served by cupbearer, sewer, carver, and assistants. fine clear italian glass drinking vessels replaced even gold and silver goblets. food was eaten from silver dishes with silver spoons. some gentry used two-pronged forks. meats were plentiful and varied: e.g. beef, mutton, veal, lamb, kid, pork, hare, capon, red deer, fish and wild fowl as well as the traditional venison and brawn [boar]. kitchen gardens and orchards supplied apricots, almonds, gooseberries, raspberries, melons, currants, oranges, and lemons as well as the traditional apples, pears, plums, mulberries, quinces, pomegranates, figs, cherries, walnuts, chestnuts, hazel nuts, filberts, almonds, strawberries, blackberries, dewberries, blueberries, and peaches. also grown were sweet potatoes, artichokes, cabbages, turnips, broad beans, peas, pumpkins, cucumbers, radishes, carrots, celery, parsnips, onions, garlic, leeks, endive, capers, spinach, sorrel, lettuce, parsley, mustard, cress, sage, tarragon, fennel, thyme, mint, savory, rhubarb, and medicinal herbs. the well-to-do started to grow apricots, peaches, and oranges under glass. sugar was used to make sweet dishes. toothpicks made of brass or silver or merely a stiff quill were used. after the meal, some men and women were invited for conversation in a withdrawing or drawing chamber. some might take a walk in the gardens. after the upper table was served, the food was sent to the great hall to the steward and high household officers at the high table and other servants: serving men and women, bakers, brewers, cooks, pot cleaners, laundresses, shepherds, hogherds, dairy maids, falconers, huntsmen, and stable men. what was left was given to the poor at the gates of the house. great chambers were used primarily for meals, but also for music; dancing; plays; masques; playing cards, dice, backgammon, or chess; and daily prayers if there was no chapel. without the necessity of fortifications, the estate of a noble or gentleman could spread out to include not only a garden for the kitchen, but extensive orchards and beautiful formal gardens of flowers and scrubs, sometimes with fountains and maybe a maze of hedges. trees were planted, pruned, and grafted onto each other. householders had the responsibility to teach their family and servants religion and morals, and often read from the bible to them. many thought that the writers of the bible wrote down the exact words of god, so the passages of the bible should be taken literally. a noble lord made written rules with penalties for his country household, which numbered about a hundred, including family, retainers, and servants. he enforced them by fines, flogging, and threats of dismissal. the lady of the house saw that the household held together as an economic and social unit. the noble's family, retainers, guests, and the head servants, such as chaplain and children's tutor, and possibly a musician, dined together at one table. the family included step children and married sons and daughters with their spouses. young couples often lived with the parents of one of them. chandeliers of candles lit rooms. there were sandglass clocks. popular home activities included reading, conversation, gardening, and music-making. smoking tobacco from a clay pipe and taking snuff became popular with men. for amusement, one of the lord's household would take his place in managing the estate for twelve days. he was called the "lord of misrule", and mimicked his lord, and issued comic orders. clothes were washed in rivers and wells. at spring cleanings, windows were opened, every washable surface washed, and feather beds and pillows exposed to the sun. most dwellings were of brick and stone. only a few were of wood or mud and straw. the average house was now four rooms instead of three. yeomen might have six rooms. a weaver's house had a hall, two bedrooms, and a kitchen besides the shop. farmers might have two instead of one room. a joiner had a one-room house with a feather bed and bolster. even craftsmen, artificers and simple farmers slept on feather beds on bed frames with pillows, sheets, blankets, and coverlets. loom tapestry and painted cloth was hung to keep out the cold in their single story homes. they also had pewter spoons and plates, instead of just wood or earthenware ones. even the poorer class had glass drinking vessels, though of a coarse grade. the poor still used wooden plates and spoons. laborers had canvas sheets. richer farmers would build a chamber above the hall, replacing the open hearth with a fireplace and chimney at a wall. poorer people favored ground floor extensions, adding a kitchen or second bedchamber to their cottages. kitchens were often separate buildings to reduce the risk of fire. roasting was done on a spit and baking in irons boxes placed in the fire or in a brick oven at the side of the fireplace. sometimes dogs were used to turn a spit by continual running in a treadmill. some people lived in hovels due to the custom in many places that a person could live in a home he built on village waste land if he could build it in one night. yeomen farmers still worked from dawn to dusk. mixed farming began. in this, some of the arable land produced food for man and the rest produced food for sheep, cattle, pigs, and poultry. this was made possible by the introduction of clover, artificial grasses, and turnip and other root crops for the animals. since the sheep ate these crops in the field, they provided manure to maintain the fertility of the soil. this meant that many animals could be maintained throughout the winter instead of being slaughtered and salted. so salted meat and salted fish were no longer the staple food of the poorer people during the winter. farm laborers ate soup, porridge, milk, cheese, bacon, and beer or mead (depending on the district), and dark barley or rye bread, which often served as his plate. gentlemen ate wheat bread. there was a scarcity of fruits and vegetables that adversely affected the health of the affluent as well as of the poor due to the overall decline in farming. during winter, there were many red noses and coughing. farmers' wives used looms as well as spinning wheels with foot treadles. the value of grain and meat rose compared to wool. grain became six times its value in the previous reign. wool fell from 20s.8d. per tod to 16s. so sheep farming, which had taken about 5% of the arable land, was supplanted somewhat by crop raising, and the rural population could be employed for agriculture. in some places, the threefold system of rotation was replaced by alternating land used for crops with that used for pasture. the necessity of manuring and the rotation of crops and grasses such as clover for enrichment of the soil were recognized. wheat, rye, barley, peas, and beans were raised. there was much appropriation of common land by individual owners by sale or force. many farms were enclosed by fences or hedges so that each holder could be independent of his neighbors. red and black currants, rhubarb, apricots, and oranges were now grown. these independent farmers could sell wool to clothiers, and butter, cheese, and meat to the towns. they also often did smithwork and ironwork, making nails, horseshoes, keys, locks, and agricultural implements to sell. a laborer could earn 6d. a day in winter and 7d. a day in summer. unfree villeinage ceased on the royal estates. but most land was still farmed in common and worked in strips without enclosure. elizabeth made several proclamations ordering the enclosure of certain enclosed land to be destroyed and the land returned to tillage. windmills now had vanes replacing manual labor to change the position of their sails when the wind direction changed. prosperous traders and farmers who owned their own land assumed local offices as established members of the community. the population of the nation was about five million. population expansion had allowed landlords to insist on shorter leases and higher rents, instead of having to choose between accepting a long lease and good rent or allowing their estates to pass out of cultivation. over 50% of the population were on the margin of subsistence. 90% of the population lived in the countryside and 5% in the london and 5% in the other towns. life expectancy was about 40 years of age. over 50% were under the age of 23, while only about 9% were over 60. fluctuations in rates of population growth were traceable back to bad harvests and to epidemics and the two were still closely related to each other: "first dirth and then plague". most of london was confined within the city wall. there were orchards and gardens both inside and outside the walls, and fields outside. flower gardens and nurseries came into existence. no part of the city was more than a ten minute walk to the fields. some wealthy merchants had four story mansions or country houses outside the city walls. the suburbs of the city of london grew in a long line along the river; on the west side were noblemen's houses on both sides of the strand. east of the tower was a seafaring and industrial population. goldsmiths' row was replete with four story houses. a few wealthy merchants became moneylenders for interest, despite the law against usury. the mayor of london was typically a rich merchant prince. each trade occupied its own section of the town and every shop had its own signboard, for instance, hat and cap sellers, cloth sellers, grocers, butchers, cooks, taverns, and booksellers. many of the london wards were associated with a craft, such as candlewick ward, bread st. ward, vintry ward, and cordwainer ward. some wards were associated with their location in the city, such as bridge ward, tower ward, aldgate ward, queenhithe ward, and billingsgate ward. people lived at the back or on the second floor of their shops. in the back yard, they grew vegetables such as melons, carrots, turnips, cabbages, pumpkins, parsnips, and cucumbers; herbs; and kept a pig. the pigs could still wander through the streets. hyde park was the queen's hunting ground. london had a small zoo of ten animals, including a lion, tiger, lynx, and wolf. london was england's greatest manufacturing city. by 1600 the greatest trading companies in london ceased to be associated only with their traditional goods and were dominated by merchants whose main interest was in the cloth trade. ambitious merchants joined a livery company to become freemen of the city and for the status and social benefits of membership. the companies still made charitable endowments, had funeral feasts, cared for the welfare of guild members, and made lavish displays of pageantry. they were intimately involved with the government of the city. they supplied members for the court of aldermen, which relied on the companies to maintain the city's emergency grain stores, to assess and collect taxes, to provide loans to the crown, to control prices and markets, to provide armed men when trouble was expected, and to raise armies for the crown at times of rebellion, war, or visits from foreign monarchs. from about 1540 to 1700, there were 23% involved in cloth or clothing industries such as weavers, tailors, hosiers, haberdashers, and cappers. 9% were leatherworkers such as skinners; tanners; those in the heavy leather crafts such as shoemakers, saddlers, and cobblers; and those in the light leather crafts such as glovers and pursers. another 9% worked in metals, such as the armorers, smiths, cutlers, locksmiths, and coppersmiths. 8% worked in the building trades. the victualing trades, such as bakers, brewers, butchers, costermongers [sold fruit and vegetables from a cart or street stand], millers, fishmongers, oystermen, and tapsters [bartender], grew from 9% before 1600 to 16% by 1700. of london's workforce, 60% were involved in production; 13% were merchants before 1600; 7% were merchants by 1700; 7% were transport workers such as watermen, sailors, porters, coachmen, and shipwrights; and 5-9% were professionals and officials (this number declining). life in london was lived in the open air in the streets. the merchant transacted business agreements and the attorney saw his clients in the street or at certain pillars at st. paul's church, where there was a market for all kinds of goods and services, including gentlemen's valets, groceries, spirits, books, and loans, which continued even during the daily service. some gentlemen had offices distant from their dwelling houses such as attorneys, who had a good income from trade disputes and claims to land, which often changed hands. plays and recreation also occurred in the streets, such as performances by dancers, musicians, jugglers, clowns, tumblers, magicians, and men who swallowed fire. the churches were continuously open and used by trades and peddlers, including tailors and letter-writers. water carriers carried water in wood vessels on their shoulders from the thames river or its conduits to the inhabitants three gallons at a time. a gentleman concocted an engine to convey thames water by lead pipes up into men's houses in a certain section of the city. in 1581, a man took out a lease on one of the arches of london bridge. there he built a waterwheel from which he pumped water to residents who lived beside the bridge. soldiers, adventurers, physicians, apprentices, prostitutes, and cooks were all distinguishable by their appearances. an ordinance required apprentices to wear long blue gowns and white breeches with stockings, with no ornamentation of silk, lace, gold or silver and no jewelry. they could wear a meat knife, but not a sword or dagger. apprentices lived with their masters and worked from 6 or 7 a.m. to 9 p.m. some people knitted wool caps as they walked to later sell. there were sections of town for booksellers, butchers, brewers, hosiers, shoemakers, curriers, cooks, poulters, bow makers, textwriters, pattenmakers, and horse and oxen sellers. large merchant companies had great halls for trade, such as the mercers, grocers, drapers, fishmongers, and goldsmiths. the other great guilds were the skinners, merchant tailers, salters, haberdashers, ironmongers, vintners, and clothworkers. smaller guilds were those of the bakers, weavers, fruiterers, dyers, thames watermen and lightermen, carpenters, joiners, turners, and parish clerks. the guilds insured quality by inspecting goods for a fee. about 1571, mercer and merchant adventurer thomas gresham established the royal exchange as a place for merchants and brokers to meet for business purposes. it became the center of london's business life. its great bell rang at midday and at 6 p.m. its courtyard was lined with shops that rented at 50s. yearly and became a popular social and recreational area. gresham formulated his law that when two kinds of money of equal denomination but unequal intrinsic value are in circulation at the same time, the one of greater value will tend to be hoarded or exported, i.e. bad money will drive good money out of circulation. the work-saving knitting frame was invented in 1589 by minister william lee; it knit crosswise loops using one continuous yarn and was operated by hand. the stocking knitters, who knitted by hand, put up a bitter struggle against its use and chased lee out of the country. but it did come into use. some framework stocking knitters paid frame rent for the use of their knitting frames. frame knitting became a scattered industry. by 1600 basement services were frequently found in town houses built on restricted sites in london. lastly, provision of water supplies and improved sanitary arrangements reflected concern with private and public health. there was virtually no drainage. in the case of town houses, some owners would go to considerable effort to solve drainage problems, often paying cash to the civic authorities, but sometimes performing some service for the town at court or at westminster, in return for unlimited water or some drainage. most affluent households, including the queen's, moved from house to house, so their cesspits could be cleaned out and the vacated buildings aired after use. a few cesspits were made air tight. otherwise, there was extensive burning of incense. refuse was emptied out of front doors and shoveled into heaps on street corners. it was then dumped into the thames or along the highways leading out of town. people put on perfume to avoid the stench. by 1600, the first toilet and water closet, where water flushed away the waste, was built. this provided a clean toilet area all year round. but these toilets were not much used because of sewer smells coming from them. the sky above london was darkened somewhat by the burning of coal in houses. taverns served meals as well as ale. they were popular meeting places for both men and women of all backgrounds to met their friends. men went to taverns for camaraderie and to conduct business. women usually went to taverns with each other. two taverns in particular were popular with the intelligentsia. music was usually played in the background and games were sometimes played. beer made with hops and malt was introduced and soon there were beer drinking contests. drunkenness became a problem. at night, the gates of the city were closed and citizens were expected to hang out lanterns. the constable and his watchmen carried lanterns and patrolled the streets asking anyone they saw why they were out so late at night. crime was rampant in the streets and criminals were executed near to the crime scene. there were a few horse-drawn coaches with leather flaps or curtains in the unglazed windows to keep out the weather. the main thoroughfare in london was still the thames river. nobles, peers, and dignitaries living on the thames had their own boats and landings. also at the banks, merchants of all nations had landing places where ships unloaded, warehouses, and cellars for goods and merchandise. swans swam in the clear bright water. watermen rowed people across the thames for a fee. in southwark were theaters, outlaws, cutpurses, prostitutes, and prisons. in 1550 southwark became the 26th and last ward of london. in the summer, people ate supper outside in public. as of old times, brokers approved by the mayor and aldermen made contracts with merchants concerning their wares. some contracts included holding wares as security. some craftsmen and manual workers extended this idea to used garments and household articles, which they took as pawns, or security for money loaned. this began pawn brokerage, which was lucrative. the problem was that many of the items pawned had been stolen. elizabeth had good judgment in selecting her ministers and advisors for her privy council, which was organized like henry viii's privy council. the queen's privy council of about twelve ministers handled foreign affairs, drafted official communiques, issued proclamations, supervised the county offices: the 1500 justices of the peace, chief constables, sheriffs, lord lieutenants, and the county militias. it fixed wages and prices in london, advised justices of the peace on wages elsewhere, and controlled exports of grain to keep prices down and supplies ample. it banned the eating of meat two days a week so that the fishing industry and port towns would prosper. when grain was scarce in 1596, elizabeth made a proclamation against those ingrossers, forestallers, and ingraters of grain who increased its price by spreading false rumors that it was scarce because much of it was being exported, which was forbidden. there were labor strikes in some towns for higher wages after periods of inflation. in 1591, london authorities rounded up the sturdy vagabonds and set them to work cleaning out the city ditches for 4d. per day. elizabeth did not allow any gentleman to live in london purely for pleasure, but sent those not employed by the court back to their country manors to take care of and feed the poor of their parishes. her proclamation stated that "sundry persons of ability that had intended to save their charges by living privately in london or towns corporate, thereby leaving their hospitality and the relief of their poor neighbors, are charged not to break up their households; and all others that have of late time broken up their households to return to their houses again without delay." she never issued a license for more than 100 retainers. she was partially successful in stopping justices of the peace and sheriffs from wearing the liveries of great men. she continued the policy of henry vii to replace the rule of force by the rule of law. service of the crown and influence at court became a better route to power and fortune than individual factions based on local power structures. at the lowest level, bribery became more effective than bullying. the qualities of the courtier, such as wit, and the lawyer became more fashionable than the qualities of the soldier. most of the men in elizabeth's court had attended a university, such as francis bacon, son of the lord keeper, who became a writer, attorney, member of the commons, and experimental philosopher; and walter ralegh, the writer and sea fighter, who had a humble origin. many wives and daughters of privy councilors attended the queen in her privy chamber. most of the knights or gentlemen of the royal household were also members of parliament or justices of the peace for certain districts in the counties. instead of the office of chancellor, which was the highest legal office, elizabeth appointed a man of common birth to be lord keeper of the great seal; she never made a lord keeper a peer. elizabeth encouraged her lords to frankly make known their views to her, in public or in private, before she decided on a course of action. she had affectionate nicknames for her closest courtiers, and liked to make puns. the rooms of the queen were arranged as they had been under henry viii: the great hall was the main dining room where the servants ate and which elizabeth attended on high days and holidays; the great chamber was the main reception room, where her gentlemen and yeomen of the guard waited; the presence chamber was where she received important visitors; beyond lay her privy chamber and her bedchamber. she ate her meals in the privy chamber attended only by her ladies. she believed that a light supper was conducive to good health. the lord chamberlain attended the queen's person and managed her privy chamber and her well-born grooms and yeomen and ladies-in-waiting. the lord steward managed the domestic servants below the stairs, from the lord treasurer to the cooks and grooms of the stable. the court did not travel as much as in the past, but became associated with london. elizabeth took her entire court on summer visits to the country houses of leading nobility and gentry. courtiers adopted symbolic "devices" as statements of their reaction to life or events, e.g. a cupid firing arrows at a unicorn signified chastity under attack by sexual desire. they carried them enameled on jewels, had them painted in the background of their portraits, and sometimes had them expressed on furniture, plate, buildings, or food. the authority of the queen was the authority of the state. elizabeth's experience led her to believe that it was most important for a monarch to have justice, temperance, magnanimity, and judgment. she claimed that she never set one person before another, but upon just cause, and had never preferred anyone to office for the preferrer's sake, but only when she believed the person worthy and fit for the office. she never blamed those who did their best and never discharged anyone form office except for cause. further, she had never been partial or prejudiced nor had listened to any person contrary to law to pervert her verdicts. she never credited a tale that was first told to her and never corrupted her judgment with a censure before she had heard the cause. she did not think that the glory of the title of monarch made all she did lawful. to her, clemency was as eminent in supreme authority as justice and severity. secular education and especially the profession of law was now the route for an able but poor person to rise to power, rather than as formerly through military service or through the church. the first stage of education was primary education, which was devoted to learning to read and write in english. this was carried out at endowed schools or at home by one's mother or a tutor. the children of the gentry were usually taught in their homes by private teachers of small classes. many of the poor became literate enough to read the bible and to write letters. however, most agricultural workers and laborers remained illiterate. they signed with an "x", which represented the christian cross and signified its solemnity. children of the poor were expected to work from the age of 6 or 7. the next stage of education was grammar [secondary] school or a private tutor. a student was taught rhetoric (e.g. poetry, history, precepts of rhetoric, and classical oratory), some logic, and latin and greek grammar. english grammar was learned through latin grammar and english style through translation from latin. as a result, they wrote english in a latin style. literary criticism was learned through rhetoric. there were disputations on philosophical questions such as how many angels could sit on a pin's point, and at some schools, orations. the students sat in groups around the hall for their lessons. the boys and some girls were also taught hawking, hunting and archery. there were no playgrounds. the grammar student and the undergraduate were tested for proficiency by written themes and oral disputations, both in latin. the middle classes from the squire to the petty tradesman were brought into contact with the works of the best greek and roman writers. the best schools and many others had the students read cicero the "de officiis", the epistles and orations; and some of ovid, terence, sallust, virgil, some medieval latin works, the "distichs" of cato, and sometimes erasmus and sir thomas more. the students also had to repeat prayers, recite the lord's prayer and the ten commandments, and to memorize catechisms. because the students came from the various social classes such as gentlemen, parsons, yeomen, mercers, and masons, they learned to be on friendly and natural terms with other classes. a typical school-day lasted from 7:00 am to 5:00 pm. there were so many grammar schools founded and financed by merchants and guilds such as the mercers and fishmongers that every incorporated town had at least one. grammar schools were headed by schoolmasters, who were licensed by the bishop and paid by the town. flogging with a birch rod was used for discipline. however, the grammar schools did not become the breeding grounds for humanist ideas because the sovereigns were faced with religious atomism and political unrest, so used the grammar schools to maintain public order and achieve political and religious conformity. many grammar schools had preparatory classes called "petties" for boys and girls who could not read and write to learn to do so. the girls did not usually stay beyond the age of nine. this was done by a schoolmaster's assistant, a parish clerk, or some older boys. some founders of grammar schools linked their schools with particular colleges in the universities following the example of winchester being associated with new college, oxford; and eton with king's college, cambridge. the new charter of westminster in 1560 associated the school with christ church, oxford and trinity college, cambridge. the government of oxford university, which had been catholic, was taken from the resident teachers and put into the hands of the vice-chancellor, doctors, heads of colleges, and proctors. cambridge already had a strong reformed element from erasmus' influence. oxford university and cambridge university were incorporated to have a perpetual existence for the virtuous education of youth and maintenance of good literature. the chancellors, masters, and scholars had a common seal. oxford was authorized to and did acquire its own printing press. undergraduate students entered about age 16 and resided in rooms in colleges rather than in scattered lodgings. the graduate fellows of the college who were m.a.s of under three years standing had the responsibility, instead of the university, for teaching the undergraduates. this led many to regard their fellowship as a position for life rather than until they completed their post-graduate studies. but they were still required to resign on marrying or taking up an ecclesiastical benefice. the undergraduates were fee-paying members of the college or poor scholars. some of the fee-paying members or gentlemen-commoners or fellow-commoners were the sons of the nobility and gentry and even shared the fellows' table. the undergraduate students were required to have a particular tutors, who were responsible for their moral behavior as well as their academic studies. it was through the tutors that modern studies fit for the education of a renaissance gentleman became the norm. those students not seeking a degree could devise their own courses of study with their tutorsâ� permission. less than about 40% stayed long enough to get a degree. many students who were working on the seven year program for a master's degree went out of residence at college after the four year's "bachelor" course. students had text books to read rather than simply listening to a teacher read books to them. in addition to the lecturing of the m.a.s and the endowed university lectureships, the university held exercises every monday, wednesday, and friday in which the student was meant through disputation, to apply the formal precepts in logic and rhetoric to the practical business of public speaking and debate. final examinations were still by disputation. the students came to learn to read latin easily. students acted in latin plays. if a student went to a tavern, he could be flogged. for too elaborate clothing, he could be fined. fines for absence from class were imposed. however, from this time until 1945, a young man's university days were regarded as a period for the "sowing of wild oats". all students had to reside in a college or hall, subscribe to the 39 articles of the university, the queen's supremacy, and the prayer book. meals were taken together in the college halls. the universities were divided into three tables: a fellows' table of earls, barons, gentlemen, and doctors; a second table of masters of arts, bachelors, and eminent citizens, and a third table of people of low condition. professors, doctors, masters of arts and students were all distinguishable by their gowns. undergraduate education was considered to be for the purpose of good living as well as good learning. it was to affect the body, mind, manners, sentiment, and business, instead of just leading to becoming a better disputant. the emphasis on manners came mostly from an italian influence. the university curriculum included latin and greek languages and was for four years. the student spent at least one year on logic (syllogizing, induction, deduction, fallacies, and the application of logic to other studies), at least one year on rhetoric, and at least one year on philosophy. the latter included physics, metaphysics, history, law, moral and political philosophy, modern languages, and ethics (domestic principles of government, military history, diplomatic history, and public principles of government), and mathematics (arithmetic, geometry, algebra, music, optics, astronomy). the astronomy taught was that of ptolemy, whose view was that the celestial bodies revolved around a spherical earth, on which he had laid out lines of longitude and latitude. there were lectures on greek and latin literature, including aristotle, plato, and cicero. there were no courses on english history in the universities. about 1564, the curriculum was changed to two terms of grammar, four terms of rhetoric, five terms of dialectic (examining ideas and opinions logically, e.g. ascertaining truth by analyzing words in their context and equivocations), three terms of arithmetic, and two terms of music. there were now negative numbers, irrational numbers such as square roots of non-integers, and imaginary numbers such as square roots of negative numbers. the circumference and area of a circle could be computed from its radius, and the pythagorean theorem related the three sides of a right triangle. also available were astrology, alchemy (making various substances such as acids and alcohols), cultivation of gardens, and breeding of stock, especially dogs and horses. astronomy, geometry, natural and moral philosophy, and metaphysics were necessary for a master's degree. the university libraries of theological manuscripts in latin were supplemented with many non-religious books. there were graduate studies in theology, medicine, music, and law, which was a merging of civil and canon law together with preparatory work for studying common law at the inns of court in london. in london, legal training was given at the four inns of court. students were called to dinner by a horn. only young gentry were admitted there. a year's residence there after university gave a gentleman's son enough law to decide disputes of tenants on family estates or to act as justice of the peace in his home county. a full legal education gave him the ability to handle all family legal matters, including property matters. many later became justices of the peace or members of parliament. students spent two years in the clerks' commons, and two in the masters' commons. besides reading textbooks in latin, the students observed at court and did work for practicing attorneys. after about four more years' apprenticeship, a student could be called to the outer bar. there was a real bar of iron or wood separating the justices from the attorneys and litigants. as "utter barrister" or attorney, he would swear to "do no falsehood in the court, increase no fees but be contented with the old fees accustomed, delay no man for lucre or malice, but use myself in the office of an attorney within the court according to my learning and discretion, so help me god, amen". students often also studied and attended lectures on astronomy, geography, history, mathematics, theology, music, navigation, foreign languages, and lectures on anatomy and medicine sponsored by the college of physicians. a tour of the continent became a part of every gentleman's education. after about eight years' experience, attorneys could become readers, who gave lecturess; or benchers, who made the rules. benchers, who were elected by other benchers, were entrusted with the government of their inn of court, and usually were king's counsel. five to ten years later, a few of these were picked by the queen for serjeant at law, and therefore eligible to plead at the bar of common pleas. justices were chosen from the serjeants at law. gresham left the royal exchange to the city and the mercer's company on condition that they use some of its profits to appoint and pay seven lecturers in law, rhetoric, divinity, music, physics, geometry, and astronomy to teach at his mansion, which was called gresham college. they were installed in 1598 according to his will. their lectures were free, open to all, and often in english. they embraced mathematics and new scientific ideas and emphasized their practical applications. a tradition of research and teaching was established in mathematics and astronomy. there were language schools teaching french, italian, and spanish to the aspiring merchant and to gentlemen's sons and daughters. many people kept diaries. letter writing was frequent at court. most forms of english literature were now available in print. many ladies read aloud to each other in reading circles and to their households. some wrote poetry and did translations. correctness of spelling was beginning to be developed. printers tended to standardize it. there was much reading of romances, jest books, histories, plays, prayer collections, and encyclopedias, as well as the bible. in schools and gentry households, favorite reading was edmund spenser's "faerie queen" about moral virtues and the faults and errors which beset them; erasmus' new testament, "paraphrases", "colloquies", and "adages"; sir thomas north's edition of plutarch's "lives of the noble grecians and romans"; elyot's "the book named the governor"; and hoby's translation of "the courtier". gentlemen read books on the ideals of gentlemanly conduct, such as "institucion of a gentleman" (1555), and laurence humphrey's "the nobles: or of nobilites". francis bacon's "essays or counsels civil and moral" were popular for their wisdom. in them he commented on many subjects from marriage to atheism. he cautioned against unworthy authority, mass opinion, custom, and ostentation of apparent wisdom. he urged the use of words with their correct meaning. at a more popular level were caxton's "the golden legend", baldwin's "mirror for magistrates", foxe's "book of martyrs" about english protestant who suffered at the stake, sensational stories and pamphlets, printed sermons (including those of switzerland's calvin), chronicles, travel books, almanacs, herbals, and medical works. english fiction began and was read. there were some books for children. books were copyrighted, although non-gentlemen writers needed a patron. at the lowest level of literacy were ballads. next to sermons, the printing press was kept busiest with rhymed ballads about current events. printed broadsheets on political issues could be distributed quickly. in london, news was brought to the governor of the news staple, who classified it as authentic, apocryphal, barber's news, tailor's news, etc. and stamped it. books were also censored for matter against the state church. this was carried out through the stationers' company. this company was now, by charter, the official authority over the entire book trade, with almost sole rights of printing. (schools had rights of printing). it could burn other books and imprison their printers. italian business techniques were set forth in textbooks for merchants, using italian terms of business: debit (debito), credit (credito), inventory (inventorio), journal (giornal), and cash (cassa). the arithmetic of accounting operations, including multiplication, was described in "an introduction for to lerne to reckonwith the penne or counters" in 1537. accounting advice was extended to farmers as well as merchants in the 1569 "the pathway to perfectness in the accomptes of debitor and creditor" by james peele, a salter of london. it repeated the age-old maxim: ...receive before you write, and write before you pay, so shall no part of your accompt in any wise decay. the 1589 "marchants avizo" by johne browne, merchant of bristol, gave information on foreign currencies and keeping of accounts, and included specimens of various business documents such as insurance policies, and bills of exchange. it also advised: take heed of using a false balance or measure...covet not over familiarity amongst men it maketh thee spend much loss of time. be not hasty in giving credit to every man, but take heed to a man that is full of words, that hath red eyes, that goeth much to law, and that is suspected to live unchaste ... when thou promiseth anything be not stuck to perform it, for he that giveth quickly giveth double ... fear god...know thy prince...love thy parents ...give reverence to thy betters ...be courteous and lowly to all men... be not wise in thine own conceit. the old prohibitions of the now declining canon law were still observed. that is, one should not seek wealth for its own sake or beyond what was requisite for a livelihood in one's station, exploit a customer's difficulties to extract an extravagant price, charge excessive interest, or engross to "corner the market". the printing press had made possible the methodizing of knowledge and its dissemination to a lay public. knowledge associated with the various professions, occupations, and trades was no longer secret or guarded as a mystery, to be passed on only to a chosen few. the sharing of knowledge was to benefit the community at large. reading became an out-of-school activity, for instruction as well as for pleasure. in 1565, graphite was discovered in england, and gave rise to the pencil. surveying accuracy was improved with the new theodolite, which determined directions and measured angles and used a telescope that pivoted horizontally and vertically. scientists had the use of an air thermometer, in which a column of air in a glass tube sitting in a dish of water contracted or expanded with changes in the temperature, causing the water to move up or down the tube. william shakespeare, a glovemaker's son, wrote plays about historical events and plays which portrayed various human personalities and their interactions with each other. they were enjoyed by all classes of people. his histories were especially popular. the queen and various earls each employed players and actors, who went on tour as a troupe and performed on a round open-air stage, with people standing around to watch. in london, theaters such as the globe were built specifically for the performance of plays, which before had been performed at inns. the audience applauded and hissed. there were costumes, but no sets. ordinary admission was 2d. before being performed, a play had to be licensed by the master of the revels to make sure that there was nothing detrimental to the peace and public order. elizabeth issued a proclamation forbidding unlicensed interludes or plays, especially concerning religion or government policy on pain of imprisonment for at least fourteen days. the common people still went to morality plays, but also to plays in which historical personages were portrayed, such as richard ii, henry iv, and henry v. some plays were on contemporary issues. musicians played together as orchestras. music with singing was a popular pastime after supper; everyone was expected to participate. dancing was popular with all classes. gentlemen played cards, dice, chess, billiards, and tennis. they fenced and had games on horseback. their deer-hunting diminished as forests were cut down for agriculture and the deer were viewed as an enemy eating crops. falconry diminished as hedges and enclosures displaced the broad expanses of land. country people enjoyed music, dancing, pantomime shows with masks, hurling, running, swimming, leap frog, blind man's buff, shovelboard played with the hands, and football between villages with the goal to get the ball into one's own village. football and shin-kicking matches often resulted in injuries. they bought ballads from traveling peddlers. early morning dew gathered in may and early june was thought to have special curative powers. there were many tales involving fairies, witches, devils, ghosts, evil spirits, angels, and monsters which were enjoyed by adults as well as children. many people still believed in charms, curses, divination, omens, fate, and advice from astrologers. the ghosts of the earth walked the earth, usually because of some foul play to be disclosed, wrong to be set right, to warn those dear to them of peril, or to watch over hidden treasure. good witches cured and healed. fairies blessed homes, rewarded minor virtues, and punished mild wrongdoing. when fairies were unhappy, the weather was bad. there were parties for children. the merry guild feast was no longer a feature of village life. there were fewer holydays and festivals. the most prosperous period of the laborer was closing. an agricultural laborer's yearly wage was about 154s., but his cost of living, which now included house rent, was about 160s. a year. in 1533, daily wages in the summer for an agricultural laborer were about 4d. and for an artisan 6d. in 1563 in the county of rutland, daily wages for laborers were 7d. in summer and 6d. in winter; and for artisans were 9d. in summer and 8d. in winter. unemployment was widespread. there were endowed hospitals in london for the sick and infirm. there were others for orphans, for derelict children, and for the destitute. they worked at jobs in the hospital according to their abilities. there was also a house of correction for discipline of the idle and vicious by productive work. elizabeth continued the practice of touching people to cure scrofula, although she could not bring herself to fully believe in the reality of such cures, contrary to her chaplain and her physician. in the towns, shop shutters were let down to form a counter at the front of the shop. goods were made and/or stored inside the shop. towns held a market once a week. fairs occurred once or twice a year. at given times in the towns, everyone was to throw buckets of water onto the street to cleanse it. during epidemics in towns, there was quarantine of those affected to stay in their houses unless going out on business. their houses were marked and they had to carry a white rod when outside. the quarantine of a person lasted for forty days. the straw in his house was burned and his clothes treated. people who died had to be buried under six feet of ground. there was an outbreak of plague in london roughly every ten years. there was a pity for the distressed that resulted in towns voting money for a people of a village that had burned down or been decimated by the plague. communities were taxed for the upkeep and relief of the prisoners in the gaols in their communities. queen elizabeth was puzzling over the proper relationship between the crown and the church when richard hooker, a humble scholar, theologian, and clergyman, attempted to find a justification in reason for the establishment of the church of england as an official part of the governing apparatus of the nation. his thinking was a turning point from the medieval notion that god ordered society, including the designation of its monarch and its natural laws, and the belief in a divine structure with a great chain of being, beginning with god and working down through the hierarchy of angels and saints to men, beasts, and vegetables, which structure fostered order in society. hooker restated the concept of aristotle that the purpose of society is to enable men to live well. he wrote that although the monarch was head of state and head of religion, the highest authority in civil affairs was parliament, and in religion, the convocation. the monarch had to maintain divine law, but could not make it. from this later came the idea that the state derives its authority from the will of the people and the consent of the governed. protestant women had more freedom in marriage and were allowed to participate in more church activities compared to catholic women, but they were not generally allowed to become pastors. due to sensitivities on the part of both catholics and protestants about a female being the head of the church, elizabeth was given the title of "supreme governor" of the church instead of "supreme head". elizabeth was not doctrinaire in religious matters, but pragmatic. she always looked for ways to accommodate all views on what religious aspects to adopt or decline. images, relics, pilgrimages, and rosaries were discouraged. but the catholic practice of kneeling at prayer, and bowing and doffing caps at the name of jesus were retained. also retained was the place of the altar or communion table at the east end of churches, special communion wafers instead of common bread, and elaborate clergy vestments. the communion prayer contained words expressing both the catholic view that the wafer and wine contained the real presence of the body and blood of christ, and the protestant view that they were commemorative only. communion was celebrated only at easter and other great festivals. church services included a sermon and were in accordance with a reformed prayer book and in english, as was the bible. care was even taken not to use words that would offend the scots, lutherans, calvinists, or huguenots. people could hold what religious beliefs they would, even atheism, as long as they maintained an outward conformity. attendance at state church services on sunday mornings and evenings and holydays was enforced by a fine of 12d. imposed by the church wardens. babies were to be baptized before they were one month old or the parents would be punished. the new religion had to be protected. members of the house of commons, lawyers, schoolmasters were to take the oath of supremacy or be imprisoned and make a forfeiture; a second refusal brought death. when numerous anabaptists came from the continent to live in the port towns, the queen issued a proclamation ordering them to leave the realm because their pernicious opinions could corrupt the church. the new church still accepted the theory of the devil causing storms, but opposed ringing the holy church bells to attempt to drive him away. the sins of people were also thought to cause storms, and also plagues. in 1562, the church of england wrote down its christian protestant beliefs in thirty-nine articles of religion, which specifically excluded certain catholic beliefs. they were incorporated into statute in 1571 establishing them as the tenets of the official religion of england. the first eighteen endorsed the ideas of one god, christ as the son of god who was sacrificed for all the sins of men, the resurrection of christ from the dead and ascension into heaven, the holy ghost proceeding from the father and the son, the books of the bible, the original sin of adam and his offspring, justification of man by faith in christ rather than by good works, goods works as the inspired fruit and proof of faith in christ, christ in the flesh as like man except for the absence of sin, the chance for sinners who have been baptised to be forgiven if they truly repent and amend their lives, the predestination of some to be brought by christ to eternal salvation and their minds to be drawn up to high and heavenly things, and salvation only by the name of christ and not by a sect. other tenets described the proper functions of the church, distinguishing them from roman catholic practice. specifically, the church was not to expound one place of scripture so that it was inconsistent with another place of scripture. because man can err, the church was not to ordain or enforce anything to be believed for necessity of salvation. explicitly renounced were the romish doctrine concerning purgatory, pardons, worshipping, adoration of images or relics, invocation of saints, and the use in church of any language, such as latin, not understood by the people. only the sacraments of baptism and the lord's supper were recognized. the lord's supper was to be a sign of the love that christians ought to have among themselves and a sacrament of redemption by christ's death. the wine in the cup of blessing as well as the bread of the lord's supper was to be taken by laypeople and to be a partaking of christ; there was no romish mass. excommunication was limited to those who openly denounced the church. anyone openly breaking the traditions or ceremonies of the church which were approved by common authority were to be rebuked. elizabeth told the bishops that she wished certain homilies to be read in church, which encouraged good works such as fasting, prayer, alms-giving, christian behavior, repentance, and which discouraged idolatry, gluttony, drunkenness, excess of apparel, idleness, rebellion, and wife-beating, however provoked. she considered homilies more instructive and learned than ministers' sermons, which were often influenced by various gentlemen and were inconsistent with each other. consecration of bishops and ministers was regulated. they were allowed to marry. the standard prayer was designated thus: "our father who art in heaven, hallowed be thy name. thy kingdom come. thy will be done, on earth as it is in heaven. give us this day our daily bread, and forgive us our offenses as we forgive those who have offended against us. and lead us not into temptation, but deliver us from evil. for thine is the kingdom, the power, and the glory forever and ever, amen." there was difficulty persuading educated and moral men to be church ministers, even though elizabeth expressed to the bishops her preference for ministers who were honest and wise instead of learned in religious matters. the bible was read at home and familiar to everyone. this led to the growth of the puritan movement. the puritans believed in the right of the individual christian to interpret the scriptures for himself by spiritual illumination. they opposed the mystical interpretation of the communion service. the puritans complained that the church exerted insufficient control over the morals of the congregation. their ideas of morality were very strict and even plays were thought to be immoral. the independent puritans were those protestants who had fled from mary's catholic reign to the continent, where they were persuaded to the ideas of john calvin of geneva. he stressed the old idea of predestination in the salvation of souls, which had in the past been accepted by nearly all english christian leaders, thinkers, and teachers, but not stressed. the act of conversion was a common experience among the early puritans. the concomitant hatred of past sins and love of god which was felt in thankfulness for mercy were proof of selection for salvation. the good works that followed were merely an obligation showing that one's faith was real, but not a way to salvation. the puritans also accepted calvin's idea of independent church government. they therefore thought that ministers and lay elders of each parish should regulate religious affairs and that the bishops, who were "petty popes", should be reduced to an equality with the rest of the clergy, since they did not rule by divine right. the office of archbishop should be eliminated and the head of state should not necessarily be governor of the church. these ideas were widely disseminated in books and pamphlets. the puritans disrupted the established church's sunday services, tearing the surplice off the minister's back and the wafers and wine from the altar rail. the puritans arranged "lectures" on sunday afternoons and on weekdays. these were given gratuitously or funded by boroughs. they were strict about not working on the sabbath, which day they gave to spiritual exercises, meditations, and works of mercy. the only work allowed was preparing meals for themselves, caring for their animals, and milking the cows. they enforced a strict moral discipline on themselves. the puritans formed a party in the house of commons. the puritan movement included william brewster, an assistant to a court official who was disciplined for delivering, upon pressure from the council, the queen's signed execution order for mary of scotland after the queen had told him to hold it until she directed otherwise. after exhausting every other alternative, the queen had reluctantly agreed with her privy council on the execution in 1572 of mary, queen of scots, who had been involved in a plot to assassinate her and claim the throne of england. elizabethâ�s council had persuaded her that it was impossible for her to live in safety otherwise. the debased coinage was replaced by a recoinage of newly minted coins with a true silver weight. goldsmiths, who also worked silver, often acted as guardians of clients' wealth. they began to borrow at interest at one rate in order to lend out to traders at a higher rate. this began banking. patents were begun to encourage the new merchant lords to develop local manufactures or to expand import and export trade. patents were for a new manufacture or an improved older one and determined the wages of its trades. there was chartering of merchant companies and granting of exclusive rights to new industries as monopolies. some monopolies or licenses were patents or copyrights of inventors. others established trading companies for trade to certain foreign lands and supporting consular services. people holding monopolies were accountable to the government. there were monopolies on certain smoked fish, fish oil, seal oil, oil of blubber, vinegar, salt, currants, aniseed, juniper berry liquor, bottles, glasses, brushes, pots, bags, cloth, starch, steel, tin, iron, cards, horn, ox shinbones, ashes, leather pieces, earth coal, calamite stone, powder, saltpeter, and lead manufacturing by-products. for far-flung enterprises and those where special arrangements with foreign countries was required, there was sharing of stock of companies, usually by merchants of the same type of goods. in joint-stock companies each member took a certain number of shares and all the selling of the goods of each merchant was carried on by the officials of the company. the device of joint stock might take the form of a fully incorporated body or of a less formal and unincorporated syndicate. the greatest joint-stock company was east india company, chartered in 1600 to trade there in competition with the dutch east india company. it was given a fifteen year monopoly on trade east of the southern tip of africa. unlike the muscovy company, and merchants of the staple, individual members could not trade on their own account, but only through the corporate body on its voyages. each particular voyage was regulated and assisted by the crown and privy council, for instance when further subscriptions were needed, or when carpenters were needed to be pressed into service for fitting out ships, or to deal with an unsuccessful captain. its charter retained many of the aspects of the medieval trade guild: power to purchase lands, to sue and be sued, to make by-laws, and to punish offenders by fine or imprisonment. admission was by purchase of a share in a voyage, redemption, presentation, patrimony (adult sons of members), and apprenticeship. purchase of a share in a voyage was the most common method. a share for the first ship cost one hundred pounds. cash payments for less than the price of a share could be invested for ultimate redemption. occasionally presentation or a faculty "for the making of a freeman" was granted to some nobleman or powerful member. members' liability was limited to their individual subscriptions. each voyage had 1) a royal commission authorizing the company to undertake the expedition and vesting in its commanders powers for punishing offenses during the voyage, and quenching any mutiny, quarrels, or dissension that might arise; 2) a code of instructions from the company to the admiral and to commanders of ships setting forth in great detail the scope and objects of the voyage together with minute regulations for its conduct and trade; 3) authorization for coinage of money or export of specie (gold or silver); and 4) letters missive from the sovereign to foreign rulers at whose ports the ships were to trade. the first voyage brought back spices that were sold at auction in london for ten times their price in the indies and brought to shareholders a profit equivalent to 9 1/2% yearly for the ten years when the going interest rate was 8% a year. town government was often controlled by a few merchant wholesalers. the entire trade of a town might be controlled by its drapers or by a company of the merchant adventurers of london. the charter of the latter as of 1564 allowed a common seal, perpetual existence, liberty to purchase lands, and liberty to exercise their government in any part of the nation. it was controlled by a group of rich londoners, no more than 50, who owned the bulk of the cloth exported. there were policies of insurance given by groups of people for losses of ships and their goods. marine insurance was regulated. new companies were incorporated for many trades. they were associations of employers rather than the old guilds which were associations of actual workers. the ostensible reason was the supervision of the quality of the wares produced in that trade, though shoemakers, haberdashers, saddlers, and curriers exercised close supervision over these wares.companies paid heavily for their patents or charters. there was no sharp line between craftsman and shopkeeper or between shopkeeper and wholesale merchant. in london, an enterprising citizen could pass freely from one occupation to another. borrowing money for a new enterprise was common. industrial suburbs grew up around london and some towns became known as specialists in certain industries. the building crafts in the towns often joined together into one company, e.g. wrights, carpenters, slaters, and sawyers, or joiners, turners, carvers, bricklayers, tilers, wallers, plasterers, and paviors. these companies included small contractors, independent masters, and journeymen. the master craftsman often was a tradesman as well, who supplied timber, bricks, or lime for the building being constructed. the company of painters was chartered with a provision prohibiting painting by persons not apprenticed for seven years. the prosperous merchants began to form a capitalistic class as capitalism grew. competition for renting farm land, previously unknown, caused these rents to rise. the price of wheat rose to an average of 14s. per quarter, thereby encouraging tillage once more. there was steady inflation. with enclosure of agricultural land there could be more innovation and more efficiency, e.g. the time for sowing could be chosen. it was easier to prevent over-grazing and half-starved animals as a result. the complications of the open system with its endless quarrels and lawsuits were avoided. now noblemen talked about manure and drainage, rotation of crops, clover, and turnips instead of hunting, horses, and dogs. the breed of horses and cattle was improved. there were specializations such as the hunting horse and the coach horse. by royal proclamation of 1562, there were requirements for the keeping of certain horses. for instance, everyone with lands of at least 1,000 pounds had to keep six horses or geldings able for demi-lances [rider bearing a light lance] and ten horses or geldings for light horsemen [rode to battle, but fought on foot]. one with under 100 pounds but over 100 marks yearly had to keep one gelding for a light horseman. dogs had been bred into various types of hounds for hunting, water and land spaniels for falconry, and other dogs as house dogs or toy dogs. there were no longer any wild boar or wild cattle. the turkey joined the cocks, hens, geese, ducks, pigeons, and peacocks in the farmyard. manure and dressings were used to fertilize the soil. hay became a major crop because it could be grown on grazing lands and required little care. there are new and bigger industries such as glassware, iron, brasswares, alum and coppers, gunpowder, paper, coal, and sugar. the coal trade was given a monopoly. coal was used for fuel as well as wood, which was becoming scarce. iron smelters increasingly used coal instead of charcoal, which was limited. iron was used for firebacks, pots, and boilers. good quality steel was first produced in 1565 with the help of german craftsmen, and a slitting mill was opened in 1588. small metal goods, especially cutlery, were made, as well as nails, bolts, hinges, locks, ploughing and harrowing equipment, rakes, pitch forks, shovels, spades, and sickles. lead was used for windows and roofs. copper and brass were used to make pots and pans. pewter was used for plates, drinking vessels, and candlesticks. competition was the mainspring of trade and therefore of town life. the mode of travel of the gentry was riding horses, but most people traveled by walking. people carried passes for travel that certified they were of good conduct and not a vagrant or sturdy rogue. bands of roving vagabonds terrorized the countryside. after a land survey completed in 1579 there arose travel books with maps, itineraries, and mileage between towns in england and wales. also, the queen sent her official mail by four royal postal routes along high roads from london to various corners of the nation. horses are posted along the way for the mail-deliverer's use. however, private mail still goes by packman or common carrier. the nation's inland trade developed a lot. there were many more wayfaring traders operating from town inns. in 1564, the first canal was built with locks at exeter. more locks and canals facilitated river travel. at london bridge, waterwheels and pumps were installed. new sea navigation techniques improved voyages. seamen learned to fix their positions, using an astrolabe or quadrant to take the altitude of the sun and stars and to reckon by the north star. they used a nocturnal, which was read by touch, to help keep time at night by taking the altitude of the stars. they calculated tides. to measure distances, they invented the traverse board, which was bored with holes upon lines, showing the points of the compass; by means of pegs, the steersman kept an account of the course steered. a log tied to a rope with knots at equal intervals was used to measure speed. there were compasses with a bearing dial on a circular plate with degrees up to 360 noted thereon. seamen had access to compilations of arab mathematicians and astronomers and to navigational manuals and technical works on the science of navigation and the instruments necessary for precision sailing. for merchants there were maps, books about maps, cosmographical surveys, and books on the newly discovered lands. in 1569 john mercator produced a map taking into account the converging of the meridians towards the pole. on this chart, a straight line course would correspond to a mariner's actual course through the water on the earth's sphere, instead of having the inaccuracies of a straight line on a map which suggested that the world was flat. it was in use by 1600. in 1600 william gilbert, son of a gentleman, and physician to queen elizabeth, wrote a book on the magnetic properties of the earth. he cultivated the method of experiment and of inductive reasoning from observation and insisted on the need for a search for knowledge not in books but in things themselves. he showed that the earth was a great magnet with a north pole and a south pole, by comparing it to lodestones made into spheres in which a north and south pole could be found by intersecting lines of magnetism indicated by a needle on the stone. the vertical dip of the needle was explained by the magnetic attraction of the north pole. he showed how a lodestone's declination could be used to determine latitude at sea. he showed how the charge of a body could be retained for a period of time by covering the body with some non-conducting substance, such as silk. he distinguished magnetism from electricity, giving the latter its name. he discovered that atmospheric conditions affected the production of electricity, dryness decreasing it, and moisture increasing it. he expounded the idea of copernicus that the earth revolves around the sun in a solar system. however, the prevailing belief was still that the earth was at the center of the universe. christmas was an especially festive time of good fellowship. people greeted each other with "good cheer", "god be with you", or "against the new year". carols were often sung and musicians played many tunes. there was dancing and gambling. there were big dinners with many kinds of meat and drink. a hearty fire heated all the house. many alms were given to beggars. parliament enacted laws and voted taxes. the queen, house of lords, and house of commons cooperated together. there was relatively little dissension or debating. bills in the house of lords were read, voted on, discussed, and passed with the lords, peers, bishops, and justices sitting in their places according to their degree. the justices sat on the wool sacks. a bar separated this area from the rest of the room, where the members of the commons stood. there were many bills concerning personal, local, or sectional interests, but priority consideration was given to public measures. the house of lords still had 55 members. the queen appointed and paid the speaker, clerk, and sergeant at arms of the commons. the knights in the commons were almost invariably from the county's leading families and chosen by consensus of knights with free land of at least 40s. in the county court. in the towns, the electors might be the town corporation, holders of certain properties, all the freemen, all the rate-payers, or all the male inhabitants. disputed elections were not usually concerned with political issues, but were rivalries for power. the commons gradually won for its members freedom from arrest without its permission and the right of punishing and expelling members for crimes committed. tax on land remained at 10% of its estimated yearly income. the queen deferred to the church convocation to define christian faith and religion, thus separating church and state functions. the treasury sought to keep a balanced budget by selling royal land and keeping crown expenditures down. the crown carried a slight debt incurred before the queen's accession. violence was still a part of the texture of everyday life. private armories and armed gangs were not uncommon. agricultural laborers kept sword and bow in a corner of their fields. non-political brutal crime and homicides were commonplace. there were frequent local riots and disturbances, in the country and in the towns. occasionally there were large-scale rebellions. but the rebellion of the earl of essex in 1601 had no aftermath in violence. in 1590, the queen issued a proclamation enforcing curfew for london apprentices, who had been misruly. the queen issued proclamations to certain counties to place vagrant soldiers or vagrants under martial law because of numerous robberies. she ordered the deportation of vagrant irishmen in 1594. theft and robbery were so usual that there were names for various techniques used. a ruffler went with a weapon to seek service, saying that he was a servitor in the wars, but his chief "trade" was to rob poor wayfaring men and market women. a prigman went with a stick in his hand like an idle person, but stole clothes off hedges. a whipjack begged like a mariner, but with a counterfeit license (called a "gibe"); he mostly robbed booths in fairs or pilfered ware from stalls, which was called "heaving of the booth". a frater had a counterfeit license to beg for some hospital, but preyed upon poor women coming and going to market. a quire bird was a person recently let out of prison, and was commonly a horse stealer. an upright man carried a truncheon of a staff and called others to account to him and give him a share or "snap" of all that they had gained in one month, and he often beat them. he took the chief place at any market walk and other assemblies. workers at inns often teamed up with robbers, telling them of wares or money travelers were carrying so the robber could profitably rob them after they left the inn. francis drake sailed around the world from 1577 to 1580. walter ralegh made an expedition to north america in 1584 with the queen's authority to "discover barbarous countries, not actually possessed of any christian prince and inhabited by christian people, to occupy and enjoy". he found and named the land of virginia in honor of the queen, who was a virgin, and started a colony on roanoke island there. drake and ralegh plundered spanish ships for cargo such as american gold and silver, much of which was used to pay for the war with spain and much going to investors. seamen on navy and pirate ships raided captured vessels to seize personal possessions of the spanish on board. the experience fighting spanish ships led to improvements in ship design; building ships was no longer merely by copying another ship or a small model. when the seas were unsafe because of the war with spain, the export of english wool was disturbed and later replaced by trading from world ports. many london merchants grew rich from using their ships for pirating. in 1588, a spanish armada came to invade england, return it to catholicism, and stop the pirating of spanish ships. in that battle off england's shores, drake and other experienced sea fighters led two hundred english ships, of which about 20 were built to sink other ships rather than to board and capture them. these new english ships were longer and narrower and did away with the towering superstructures at bow and stern. this made them more maneuverable and easier to sail. also, the english guns were lighter, more numerous, and outranged the spanish guns. so the smaller english ships were able to get close enough to fire broadside after broadside against the big spanish troop-transport galleons, without being fired upon. the english sent fire ships into the spanish fleet when it was anchored, causing it's ships to disperse in a panic. then the direction of the wind forced the spanish galleons northward, where most of them were destroyed by storms. the english seamen had been arbitrarily pressed into this service. a royal proclamation of 1601 offered a reward of 100 pounds for information on libels against the queen. there had been mounting demonstrations against her monopolies, which mostly affected household items. there had been abuses of monopolies, such as the steel monopoly had been sold for 12 pounds 10s., but steel was then sold at 5d. per pound instead of the former 2 1/2 d. per pound. further the steel was mixed and of a lesser quality. this so damaged the knife and sword industry that about 2000 workers lost their jobs from it and became beggars. monopoly was a severe burden to the middle and poorer classes. also, the power of patent holders to arrest and imprison persons charged with infringing upon their rights was extended to any disliked person. when the house of commons protested against monopolies in 1601, elizabeth reduced them. she addressed her council and the commons saying that "mr. speaker, you give me thanks, but i doubt me that i have more cause to thank you all than you me; and i charge you to thank them of the lower house from me. for had i not received a knowledge from you, i might have fallen into the lapse of an error only for lack of true information. since i was queen yet did i never put my pen to any grant but that upon pretext and semblance made unto me, it was both good and beneficial to the subject in general, though a private profit to some of my ancient servants who had deserved well. but the contrary being found by experience, i am exceedingly beholding to such subjects as would move the same at the first. and i am not so simple to suppose but that there be some of the lower house whom these grievances never touched; and for them i think they speak out of zeal to their countries and not out of spleen or malevolent affection, as being parties grieved. and i take it exceedingly gratefully from them, because it gives us to know that no respects or interests had moved them other than the minds they bear to suffer no diminution of our honor and our subjects' love unto us, the zeal of which affection tending to ease my people and knit their hearts unto me, i embrace with a princely care. for above all earthly treasures i esteem my people's love, more than which i desire not to merit. that my grants should be grievous unto my people and oppressions to be privileged under color of our patents, our kingly dignity shall not suffer it. yea, when i heard it i could give no rest unto my thoughts until i had reformed it. shall they (think you) escape unpunished that have thus oppressed you, and i have been respectless of their duty and regardless of our honor? no, no, mr. speaker, i assure you, were it not more for conscience' sake than for any glory or increase of love that i desire, these errors, troubles, vexations, and oppressions done by these varlets and low persons (not worthy the name of subjects) should not escape without condign punishment. but i perceive they dealt with me like physicians who, ministering a drug, make it more acceptable by giving it a good aromatical savor; or when they give pills, do gild them all over. i have ever used to set the last judgment day before my eyes and so to rule as i shall be judged, to answer before a higher judge. to whose judgment seat i do appeal that never thought was cherished in my heart that tended not unto my people's good. and now if my kingly bounties have been abused and my grants turned to the hurts of my people, contrary to my will and meaning, or if any in authority under me have neglected or perverted what i have committed to them, i hope good will not lay their culps [sins] and offenses to my charge. who, though there were danger in repealing our grants, yet what danger would i not rather incur for your good than i would suffer them still to continue? i know the title of a king is a glorious title, but assure yourself that the shining glory of princely authority hath not so dazzled the eyes of our understanding but that we well know and remember that we also are to yield an account of our actions before the great judge. to be a king and wear a crown is a thing more glorious to them that see it than it is pleasant to them that bear it. for myself, i was never so much enticed with the glorious name of a king or royal authority of a queen as delighted that god hath made me his instrument to maintain his truth and glory, and to defend this kingdom from peril, dishonor, tyranny, and oppression. there will never queen sit in my seat with more zeal to my country, care to my subjects, and that will sooner with willingness venture her life for your good and safety, than myself. for it is not my desire to live or reign longer than my life and reign shall be for your good. and though you have had and may have many princes more mighty and wise sitting in this seat, yet you never had or shall have any that will be more careful and loving." about 1584, richard hakluyt, a bristol clergyman, wrote "a particular discourse concerning western discoveries". this was to become the classic statement of the case for english colonization. it held out hope that the english would find needed timber for masts, pitch, tar, and ashes for soap. in rome in 1600, giordano bruno, an italian monk and priest, was burned alive at the stake by a court of the inquisition for not recanting, although tortured, his heretical and blasphemous philosophy. he had opined that christianity was irrational and had no scientific basis. he declared that christ was only a skillful magician, that the bible could not be taken literally, that god and nature were not separate as taught by genesis, that the catholic church encouraged ignorance from the instinct of self-preservation, and that the earth and planets revolved around the sun, as did other planets around the "fixed" stars and other suns. the jesuits, a new catholic order brimming with zeal, sent missionaries to england to secretly convert people to catholicism. the practice of catholicism had gone underground in england, and some catholic householders maintained catholic priests in hidden places in their homes. although estate tails (estates descendible only to the heirs of the body of the original feofee) by law could not be sold or given away, this was circumvented by the fraudulent use of a "straw man". in collaboration with the possessor of the property, this straw man sued the possessor asserting that the property had been wrongfully taken from the straw man. the possessor pleaded that the crier of the court who had warranted the title should be called to defend the action. he failed to appear until after judgment had been given to the straw man. then the straw man conveyed it to the possessor or his nominee in fee simple. the law the following statute of artificers regulated labor for the next two centuries: no master or mistress may employ a servant for a term less than one year in the crafts of clothiers, woolen cloth weavers, tuckers, fullers, clothworkers, shearmen, dyers, hosiers, tailors, shoemakers, glovemakers, tanners, pewterers, bakers, brewers, cutlers, smith, farriers, curriers, saddlers, spurriers, turners, cappers, hatmakers, feltmakers, bow-makers, arrow-makers, arrowhead-makers, butchers, cooks, or millers. also, every craftsman unmarried or under age 30 who is not working must accept employment by any person needing the craft work. also, any common person between 12 and 60 who is not working must accept employment in agriculture. and, unmarried women between 12 and 40 may be required by town officials to work by the year, the week, or day for wages they determine. all artificers and laborers hired by the day or week shall work from 5 am to 7 pm. all artificers must labor at agriculture at haytime and harvest to avoid the loss of grain or hay. every householder who raises crops may receive as an apprentice a child between 10 and 18 to serve in agriculture until he is age 21. a householder in a town may receive a child as an apprentice for 7 years, but merchants may only take as apprentices children of parents with 40s. freehold. no one may be a craftsman until he has served seven years as an apprentice. these artificers may have children as apprentices: smith, wheelmaker, ploughmaker, millmaker, miller, carpenter, rough mason, plasterer, a timber sawer, an ore burner, a lime burner, brickmaker, bricklayer, tilemaker, tiler, layer of slate roofs, layer of wood shingle roofs, layer of straw roofs, cooper, earthen potter, linen weaver, housewife who weaves wool for sale or for household use. purposes of the statute of artificiers were to advance agriculture, diminish idleness, and inhibit migration to the towns. it excluded three fourths of the rural population.) troops of vagabonds with weapons in the highways who pretend to be soldiers or mariners have committed robberies and murders. so all vagabonds shall settle down in some service or labor or trade. a vagabond or mighty strong beggar [able to work] shall be whipped. incorrigible and dangerous rogues shall be branded with an "r" mark on the left shoulder and be put to labor, because banishment did not work as they came back undetected. if one is caught again begging, he shall be deemed a felon. if a person marries a second time while the first spouse is still living, it shall be a felony and thus punishable by death. no attainder shall result in the forfeiture of dower by the offender's wife nor disinheritance of his heirs. no one shall forge a deed of land, charter, sealed writing, court roll or will. no one shall libel or slander so as to cause a rebellion. embezzlement or theft by a servant of his master's goods of 40s. or more is a felony. cut-purses and pick-purses shall not have benefit of clergy. a person robbing a house of 5s. by day when no one is there shall not have benefit of clergy, because too many poor persons who cannot hire a servant to look after their house when they go to work have been robbed. benefit of clergy may not be had for stabbing a person who has no weapon drawn, if he dies within six months. fraudulent and secret conveyances made to retain the use of one's land when one sells the land to a bona fide purchaser for value in fee simple, fee tail, for life, for lives, or for years are void. crown officials such as treasurers, receivers, accountants, and revenue collectors shall not embezzle crown funds and shall be personally liable for arrears. persons forcibly taking others across county lines to hold them for ransom and those taking or giving blackmail money and those who burn barns or stacks of grain shall be declared felons and shall suffer death, without any benefit of clergy or sanctuary. any person killing any pheasant, partridge, dove, pigeon, duck or the like with any gun, crossbow, stonebow, or longbow, or with dogs and nets or snares, or taking the eggs of such from their nests, or tracing or taking hares in the snow shall be imprisoned for three months unless he pays 20s. per head or, after one month's imprisonment, have two sureties bound for 400s. this is because the past penalty of payment hasn't deterred offenders, who frequently cannot pay. persons affected by the plague may not leave their houses or be deemed felons and suffer death. this is to avoid further infection. the towns may tax their inhabitants for the relief of infected persons. devising or speaking seditious rumors are penalized by the pillory and loss of both ears for the first offense; and 200 pounds and six months imprisonment for the second offense. slandering the queen is penalized by the pillory and loss of one ear, or by [1,333s.] 100 marks and three months imprisonment, at the choice of the offender. the second offense is a felony. printing, writing, or publishing seditious books is a felony without benefit of clergy. wishing the queen dead, prophesying when she would die, or who would succeed her to the crown is a felony without benefit of clergy. attainders for these felonies shall not work corruption of the blood [heirs may inherit the property of the felon]. a debtor may not engage in a fraudulent collusion to sell his land and goods in order to avoid his creditors. this was designed to remedy the following problem: a native or denizen merchant in wholesale or retail goods who leaves the nation to defraud his creditors shall be declared a bankrupt. the chancellor may conduct an investigation to ascertain his land, house, and goods, no matter who may hold them. they shall be appraised and sold to satisfy his debts. lands, tenements, goods and chattels of accountants teller, or receiver who are in debt may be obtained by court order to satisfy the debt by garnishing the heir of the debtor after the heir has reached 21 and for the 8 years next ensuing. loan contracts for money lent may not be for more than 200s. for each 2000s. yearly (i.e. 10% interest). all loans of money or forbearing of money in sales of goods not meeting this requirement shall be punishable by forfeit of the interest only. pawn brokers accepting stolen goods shall forfeit twice their value to the owner from whom stolen. when the hue and cry is raised for a robbery in a hundred, and other hundreds have been negligent, faulty, or defective in pursuit of the robber, then they must pay half the damages to the person robbed, while the hundred in which the robbery occurred pays the other half. robbers shall be pursued by horse and by foot. the mother and reputed father of any bastard who has been left to be kept at the parish where born must pay weekly for the upkeep and relief of such child, so that the true aged and disabled of the parish get their relief and to punish the lewd life. any innkeeper, victualer, or alehouse keeper who allows drinking by persons other than those invited by a traveler who accompanies him during his necessary abode there or other than laborers and handicraftsmen in towns upon the usual working days for one hour at dinner time to take their diet in an alehouse or other than laborers and workmen following their work to any given town to sojourn, lodge, or victual in any inn, alehouse or victualing house shall forfeit 10s. for each offense. this is because the use of inns, alehouses, and victualing houses was intended for relief and lodgings of traveling people and people not able to provide their own victuals, but not for entertainment and harboring of lewd and idle people who become drunk. no butcher may cut any hide or any ox, bull, steer, or cow so that it is impaired or may kill any calf under five weeks old. no butcher may be a tanner. no one may be a tanner unless that person has apprenticed as such for seven years, or is the son or wife of a tanner who has tanned for four years, or is a son or daughter of a tanner who inherits his tanhouse. tanners may not be shoemakers, curriers, butchers, or leatherworkers. only tanners may buy raw hides. only leatherworkers may buy leather. only sufficiently strong and substantial leather may be used for sole-leather. curriers may not be tanners. curriers may not refuse to curry leather. london searchers shall inspect leather, seal and mark that which is sufficient, and seize any that is insufficiently tanned, curried, wrought, or used. the incorporated company of ship masters may erect beacons and marks on the seashores and hills above, because certain steeples and other marks used for navigation have fallen down and ships therefore have been lost in the sea. there shall be one sheriff per county, because now there are enough able men to supply one per county. no one shall bribe an elector to vote for a certain person for fellow, scholar, or officer of a college, school, or hall or hospital so that the fittest persons will be elected, though lacking in money or friends, and learning will therefore be advanced. no master at a university may lease any land unless 1/3 of it is retained for raising crops to supply the colleges and halls for food for their scholars. fish, but no meat, may be eaten on wednesdays so that there will be more fishermen and mariners and repair of ports. (this was done because fishing had declined since the dissolution of the monasteries, where fissh was eaten eveery friday. eating fish instead of meat in lent in the springtime remained a tradition.) every person over 6 years of age shall wear on sundays a wool knitted cap made by the cappers, except for maidens, ladies, gentlewomen, noble persons, and every lord, knight, and gentlemen with 2,667s. of land, since the practice of not wearing caps has damaged the capping industry. this employed cappers and poor people they had employed and the decrepit and lame as carders, spinners, knitters, parters, forsers, thickers, dressers, dyers, battelers, shearers, pressers, edgers, liners, and bandmakers. no man under the degree of knight may wear a hat or cap of velvet. caps may not be made of felt, but only knit wool. only hats may be made of felt. this is to assist the craft of making wool caps. no one may make any hat unless he has served as apprentice for at least seven years. this is to prevent false and deceitful hatmaking by unskillful persons. no one shall make false linen by stretching it and adding little pieces of wood, which is so weak that it comes apart after five washings. timber shall not be felled to make logs for fires for the making of iron. no one may take small fish to feed to dogs and pigs. only nets with mesh leaving three inches spaces may be used to catch fish. cottage and dwelling houses for workmen or laborers in mineral works, coal mines, or quarries of stone or slate for the making of brick, tile, lime, or coals shall be built only within a mile from such works. dwelling houses beyond this must be supported by four acres of land to be continually occupied and manured as long as the dwelling house is inhabited or else forfeit 40s. per month to the queen. cottages and dwelling houses for sailors or laborers working on ships for the sea shall be built only within a mile of the sea. a cottage may be built in a forest or park for a game keeper of the deer. a cottage may be built for a herdman or shepherd for the keeping of cattle or sheep of the town. a cottage may be built for a poor, lame, sick, aged, or disabled person on waste or common land. more families than one may not be placed in one cottage or dwelling house. (this is a zoning law.) any person with land in fee-simple may establish a hospital, abiding place, or house of correction to have continuance forever as a corporation for the sustenance and relief of the maimed, poor, or disabled people as to set the poor to work. the net income shall not exceed 40,000s. yearly. no new iron mills or furnaces for making or working of any iron or iron metal shall be established in the country around london and the owners of carriages of coals, mines and iron which have impaired or destroyed the highways shall also carry coal ashes, gravel, or stone to repair these highways or else make a payment of 2s.6d. for each cart load not carried. for repairing of highways, the supervisors may take the rubbish or smallest stones of any quarry along the road in their precinct. persons with 100s. in goods or 40s. in lands shall find two able men in their parish community to repair the highways yearly. landowners of oxford shall be taxed for the repair of the highway and bridge there. the price of barrels shall be set by mayors of the towns where they are sold. rugs shall weigh 44 pounds at least and be 35 yards at least in length and at most 3/4 yard wide. no cattle may be put in any enclosed woods that have been growing less than five years. at the end of five years growth, calves may be put in. at the end of six years growth, cattle may be put in. woods around london shall not be felled to be converted to coals for iron-works because london needs the wood to make buildings and for fireplaces. every melter and maker of wax from honeycombs shall put his mark on every piece of his wax to be sold. wrought wax such as in lights, staff-torches, red wax or sealing wax, book candles, or searing candles shall bear its maker's mark. all barrels of honey shall bear the mark of the honeymaker. wool cloth, cotton cloth, flannel cloth, hose-yarn, hats, and caps shall be dyed black only with dye from the woad plant and not with any false black dye. no one shall take or kill any pheasants with nets or devices at nighttime because such have become scarce. pontage [toll for upkeep and repair of bridges] shall be taken at certain bridges: carts 2d., horse and pack 1d., a flock of sheep 2d. no bishop may lease land for more than twenty-one years or longer than the lives of three designated persons. no bishop may alienate any possession of their sees to the crown. such are void. watermen transporting people on the thames river shall have served as apprentice to a waterman for five years or have been the son of a waterman. this is to prevent the loss of lives and goods by inexperienced watermen. spices and potions, including pepper, cloves, mace, nutmeg, cinnamon, ginger, almonds, and dates, which have usually been garbled [cleaned or sorted by sifting] shall be garbled, cleaned, sorted, and sealed by the garbler before sale. this is to prevent mingled, corrupt, and unclean spices and potions from being sold. plasterers shall cease painting because it has intruded upon the livelihoods of painters who have been apprenticed as such. fishermen and their guides may continue to use the coastland for their fishing activities despite the trespass to landowners. since sails for ships in recent years have been made in the realm instead of imported, none shall make such cloth unless he has been apprenticed in such or brought up in the trade for seven years. this is to stop the badness of such cloth. tonnage and poundage on goods exported and imported shall be taken to provide safeguard of the seas for such goods. all persons must go to the established church on sundays and holy days. the penalty was at first forfeiture 12d. along with church punishment, and later, 20 pounds per month and being bound by two sureties for 200 pounds for good behavior, and if the 20 pounds is not paid, then forfeiture of all goods to be applied to the amount due and two-thirds of one's land. these laws were directed against catholicism, but were laxly enforced as long as worship was not open and no one wore priestly clothes: 1) the writing, preaching, or maintaining of any foreign spiritual jurisdiction shall be punished by forfeiture of goods or, if the goods are not worth 20 pounds, one year imprisonment, for the first offense; forfeiture of goods and lands and the king's protection, for the second offense; and the penalty for high treason for the third offense. 2) any person leading others to the romish [catholic] religion is guilty of high treason. the penalty for saying mass is [2,667s.] 200 marks and one year's imprisonment. the penalty for hearing mass is [1,333s.] 100 marks and one year's imprisonment. if one is suspected of being a jesuit or priest giving mass, one must answer questions on examination or be imprisoned. 3) papists [those who in conscience refused to take the oath of supremacy of the crown over the church] must stay in their place of abode and not go five miles from it, unless licensed to do so for business, or else forfeit one's goods and profits of land for life. if a copyholder, land is forfeited to one's lord. but if the goods are not worth 800s. or the land is not worth at least 267s., the realm must be abjured. otherwise, the papist is declared a felon without benefit of clergy. 4) if a child is sent to a foreign land for catholic education, he cannot inherit lands or goods or money, unless he conforms to the established church on his return. there is also a 100 pound penalty for the persons who sent him. judicial procedure trials of noblemen for treason shall be by their peers. stewards of leet and baron courts may no longer receive, in their own names, profits of the court over 12d. since they have vexed subjects with grievous fines and amercements so that profits of justice have grown much jurors shall be selected from those people who have at least 80s. annual income instead of 40s. because sheriffs have been taking bribes by the most able and sufficient freeholders to be spared at home and the poorer and simpler people, who are least able to discern the causes in question, and most unable to bear the charges of appearance and attendance in such cases have been the jurors. also there had been inflation. defendants sued or informed against upon penal statutes may appear by attorney so that they may avoid the inconvenience of traveling a long distance to attend and put to bail. not only sheriffs, but their employees who impanel juries or execute process in the courts shall take an oath of office. a hundred shall answer for any robbery therein only if there has been negligence or fault in pursuit of the robber after a hue and cry is made because the past law has been too harsh and required payment for offenses from people unable to pay who have done everything reasonable to catch the robber. the star chamber became the central criminal court after 1560, and punished perjury, corruption, malfeasance throughout the legal system such as jury corruption and judicial bribery, rioting, slander, and libel. its procedure was inquisitory rather than accusative. it heard witnesses in camera [not in the presence of the suspected]. trial was by systematic interrogation of the suspected on oath, with torture if necessary in treason cases. silence could be taken for a confession of guilt. there was no jury. queen elizabeth chose not to sit on this court. punishments were imprisonment, fines, the pillory, ear cropping or tacking, whipping, stigmata on the face, but not death or any dismemberment except for the ears. (the gentry was exempt from whipping.) because the publication of many books and pamphlets against the government, especially the church, had led to discontents with the established church and to the spreading of sects and schisms, the star chamber in 1585 held that the printing trade was to be confined to london, except for one press at oxford and one at cambridge. no book or pamphlet could be printed unless the text was first seen, examined, and allowed by the archbishop of canterbury or the bishop of london. book publishers in violation were to be imprisoned for six months and banned from printing; their equipment was to be destroyed. wardens were authorized to search wherever "they shall have reasonable cause of suspicion", and to seize all such books and pamphlets printed. but printers continued to print unlicensed material. the ecclesiastical high commission [later called the court of high commission or high court of ecclesiastical causes] took over criminal cases formerly heard by the church courts. it also heard matters of domestic morals. it was led by bishops and privy council members who in 1559 were authorized by a statute of parliament to keep order within the church, discipline the clergy, and punish such lay offenses as were included in the ecclesiastical jurisdiction. obstinate heresy is still a capital crime, but practically the bishops have little power of forcing heretics to stand trial. if anyone maintains papal authority, he forfeits his goods; on a third conviction, he is a traitor. the clergyman who adopts a prayer book other that the prescribed one commits a crime. excommunication has imprisonment behind it. elizabeth gave this court the power to fine and imprison, which the former church courts had not had. at first, the chief work was depriving papists of their benefices. suits on titles to land were restricted to the common law courts and no longer to be heard in the star chamber, chancery court, or in the court of requests (equity for poor people). the queen's privy council investigated sedition and treason, security of the regime, major economic offenses, international problems, civil commotion, officials abusing their positions, and persons perverting the course of justice. it frequently issued orders to justices of the peace, for instance to investigate riots and crimes, to enforce the statutes against vagrancy and illegal games, to regulate alehouses, to ensure that butchers, innkeepers, and victualers did not sell meat on fish days, and to gather information needed from the counties. the justices of the peace decided misdemeanors such as abduction of heiresses, illegal entry, petty thievery, damage to crops, fence-breaking, brawling, personal feuds, drunken pranks, swearing, profanation of the sabbath, alehouse nuisances, drunkenness, perjury, and malfeasance by officials. they held petty and quarter sessions. the justices of the peace had administrative duties in control of vagrancy, upkeep of roads and bridges, and arbitration of lawsuits referred to them by courts. they listed the poor in each parish community, assessed rates for their maintenance, and appointed overseers to administer the welfare system, deploying surplus funds to provide houses of correction for vagrants. raw materials such as wool, flax, hemp, and iron were bought upon which the able-bodied unemployed could be set to work at the parochial level. they determined wages in their districts, with no statutory ceiling on them, for all laborers, weavers, spinsters, workmen and workwomen working by the day, week, month, or year, or taking any work at any person's hand. there were about 50 justices of the peace per county. all were unpaid. they performed these duties for the next 200 years. the justices of assize rode on circuit twice a year to enforce the criminal law and reported their assessment of the work of the justices of the peace back to the privy council. the duty to hear and determine felonies was taken from justices of the peace by 1590. the justices of assize did this work. accused people could wait for years in gaol before their case was heard. felonies included breach of prison, hunting by night with painted faces, taking horses to scotland, stealing of hawks' eggs, stealing cattle, highway robbery, robbing on the sea, robbing houses, letting out of ponds, cutting of purses, deer-stealing at night, conjuring and witchcraft, diminution of coin, counterfeiting of coins, and impenitent roguery and idleness. the penalty was death. many people were hanged for the felony of theft over 12d. some bold men accused of felony refused to plead so that they could not be tried and found guilty. they died of heavy weights being placed on their bodies. but then their property could go to their heirs. the court of queen's bench and exchequer indirectly expanded their jurisdiction to include suits between citizens, formerly heard only the court of common pleas or chancery. chancery interrogated defendants. chancery often issued injunctions against suits in the common law courts. trial by combat was very rare. pleadings had to be in writing and oral testimony was given by sworn witnesses. case decisions are in books compiled by various reporters who sit in on court hearings rather than in year books. in the common law, trespass has given rise to the offshoot branch of "ejectment", which becomes the common means of recovering possession of land, no matter what kind of title the claimant asserts. trespass on the case has given rise to the offshoot branch of "trover" [finding another's goods and converting them to one's own use]. the use of the action of trover gradually supplants the action of detinue, which involves compurgation. in the common law courts, the action of assumpsit for enforcing certain promises is used more than the action of debt in those cases where there is a debt based on an agreement. the essential nature of "consideration" in contract is evolving from the procedural requirements for the action of assumpsit. consideration may consist in mutual promises, a precedent debt, or a detriment incurred by one who has simultaneously received a promise related to the detrimental action. consideration must be something, an act, or forbearance of an act that is of value. for instance, forbearance to sue a worthless claim is not consideration. the abstract concept of contract as an agreement between two parties which is supported by consideration is developing as the number of various agreements that are court enforceable expands. for instance the word "consideration" is used in hayward's case in 1595 in the court of wards on the construction of a deed. sir rowland hayward was seised in fee of the doddington manor and other lands and tenements, whereof part was in demesne, part in lease for years with rents reserved, and part in copyhold, by indenture, "in consideration of a certain sum of money" paid to him by richard warren and others, to whom he demised, granted, bargained and sold the said manor, lands and tenements, and the reversions and remainders of them, with all the rents reserved upon any demise, to have and to hold to them and their assigns, presently after the decease of sir rowland, for the term of 17 years. it was held that the grantees could elect to take by bargain and sale or by demise, each of which had different consequences. in another case, a delivered 400s. to b to the use of c, a woman, to be delivered to her on the day of her marriage. before this day, a countermanded it, and called home the money. it was held in the chancery court that c could not recover because "there is no consideration why she should have it". in a case concerning a deed, a sold land to b for 400s., with confidence, that it would be to the use of a. this bargain "hath a consideration in itself ... and such a consideration is an indenture of bargain and sale". it was held that the transaction was not examinable except for fraud and that a was therefore estopped. a court reporter at the king's bench formulated two principles on consideration of the case of wilkes against leuson as: "the heir is estopped from falsifying the consideration acknowledged in the deed of feoffment of his ancestor. where a tenant in capite made a feoffment without consideration, but falsely alleged one in the deed on an office finding his dying seised, the master of the wards cannot remove the feoffees on examining into the consideration, and retain the land until &c. and though the heir tended, still if he do not prosecute his livery, the queen must admit the feoffees to their traverse, and to have the farm, &c." the court reporter summarized this case as follows: wilkes, who was merchant of the staple, who died in february last past, made a feoffment in the august before his death to one leuson, a knight, and his brother, and another, of the manor of hodnel in the county of warwick; and the deed, (seen) for seven thousand pounds [140,000s.] to him paid by the feoffees, of which sum he made acquittance in the same deed (although in fact and in truth not a half-penny was paid), gave, granted, and confirmed &c "habendum eir et hoeredibus suis in perpetuum, ad proprium opus et usum ipsorum a. b. et c. in perpetuum," and not "hoeredum suorum," together with a clause of warranty to them, their heirs and assigns, in forma proedicta: and notwithstanding this feoffment he occupied the land with sheep, and took other profits during his life; and afterwards his death was found on a diem clausit extremum by office, that he died seised of the said manor in fee, and one i. wilkes his brother of full age found his next heir, and a tenure in capite found, and now within the three months the said feoffees sued in the court of wards to be admitted to their traverse, and also to have the manor in farm until &c. and although the said i. wilkes the brother had tendered a livery, yet he had not hitherto prosecuted it, but for cause had discontinued. and whether now the master of the wards at his discretion could remove the feoffees by injunction out of possession upon examination of the said consideration of the said feoffment which was false, and none such in truth, and retain it in the hands of the queen donec et quousque &c. was a great question. and by the opinion of the learned counsel of that court he cannot do it, but the queen is bound in justice to give livery to him who is found heir by the office, or if he will not proceed with that, to grant to the tenderers the traverse, and to have the farm, &c. the request above mentioned. and this by the statutes ... and note, that no averment can be allowed to the heir, that the said consideration was false against the deed and acknowledgment of his ancestor, for that would be to admit an inconvenience. and note the limitation of the use above, for divers doubted whether the feoffees shall have a fee-simple in the sue, because the use is not expressed, except only "to themselves (by their names) for ever;" but if those words had been wanting, it would have been clear enough that the consideration of seven thousand pounds had been sufficient, &c. for the law intends a sufficient consideration by reason of the said sum; but when the use is expressed otherwise by the party himself, it is otherwise. and also the warranty in the deed was "to them, their heirs, and assigns, in form aforesaid," which is a declaration of the intent of wilkes, that the feoffees shall not have the use in fee simple; and it may be that the use, during their three lives, is worth seven thousand pounds, and more &c. and suppose that the feoffment had been "to have to them and their heirs to the proper use and behoof of them the feoffees for the term of their lives for ever for seven thousand pounds," would they have any other estate than for the term of their lives in the use? i believe not; and so in the other case. a last example of a case concerning consideration is that of assaby and others against lady anne manners and others. the court reporter characterized the principle of the case as: "a. in consideration of his daughter's marriage covenants to stand seised to his own use for life, and that at his death she and her husband shall have the land in [fee] tail, and that all persons should stand seised to those uses, and also for further assurance. after the marriage he bargains and sell with fine and recovery to one with full notice of the covenants and use; this is of no avail, but on the death of a. the daughter and her husband may enter." the court reporter summarized this case as follows: a. was seised of land in fee, and in consideration of a marriage to be had between his daughter and heir apparent, and b. son and heir apparent of c. he covenanted and agreed by indenture with c. that he himself would have, hold, and retain the land to himself, and the profits of during his life, and that after his decease the said son and daughter should have the land to them and to the heirs of their two bodies lawfully begotten, and that all persons then or afterwards seised of the land should stand and be seised immediately after the marriage solemnized to the use of the said a. for the term of his life, and after his death to the use of the said son and daughter in tail as above, and covenanted further to make an assurance of the land before a certain day accordingly &c. and then the marriage took effect; and afterwards a. bargained and sold the land for two hundred marks [2,667s.](of which not a penny is paid) to a stranger, who had notice of the first agreements, covenants, and use, and enfeoffed divers persons to this last use, against whom a common recovery was had to his last use; and also a. levied a fine to the recoverers before any execution had, and notwithstanding all these things a. continued possession in taking the profits during his life; and afterwards died; and the son and daughter entered, and made a feoffment to their first use. and all this matter was found in assize by assaby and others against lady anne manners and others. and judgment was given that the entry and feoffment were good and lawful, and the use changed by the first indenture and agreement. yet error was alleged. the judgment in the assize is affirmed. the famous shelley's case stands for the principle that where in any instrument an estate for life is given to the ancestor, and afterwards by the same instrument, the inheritance is limited whether mediately, or immediately, to his heirs, or heirs of his body, as a class to take in succession as heirs to him, the word "heirs" is a word of limitation, and the ancestor takes the whole estate. for example, where property goes to a for life and the remainder goes to a's heirs, a's life estate and the remainder merge into a fee in a. a can sell or devise this interest. edward shelley was a tenant in fee tail general. he had two sons. the older son predeceased his father, leaving a daughter and his wife pregnant with a son. edward had a common recovery (the premises being in lease for years) to the use of himself for term of his life, after his decease to the use of the male heirs of his body, and of the male heirs of the body of such heirs, remainder over. after judgment and the awarding of the writ of seisin, but before its execution, edward died. after his death, and before the birth of his older son's son, the writ of seisin was executed. the younger son entered the land and leased it to a third party. afterwards, the son of the older son was born. he entered the land and ejected the third party. it was held that the younger son had taken quasi by descent until the birth of the older son's son. the entry by the older son's son was lawful. the third party was lawfully ejected. (shelley's case, king's bench, 1581, english reports full reprint, vol. 76, page 206.) about 1567, london authorities punished nicholas jennings alias blunt for using elaborate disguises to present himself as an epileptic to beg for handouts from the public. he was pilloried, whipped, and pulled behind a cart through the streets. he was kept at the bridewell and was set to work at a mill. chapter 14 the times: 1601-1625 due in part to increasing population, the prices of foodstuffs had risen sixfold from the later 1400s, during which it had been stable. this inflation gradually impoverished those living on fixed wages. landlords could insist on even shorter leases and higher rents. london quadrupled in population. many lands that were in scattered strips, pasture lands, waste lands, and lands gained from drainage and disafforestation were enclosed for the introduction of convertible agriculture (e.g. market-oriented specialization) and only sometimes for sheep. the accompanying extinguishment of common rights was devastating to small tenants and cottagers. gentry and yeomen benefited greatly. there was a gradual consolidation of the land into fewer hands and demise of the small family farm. in towns, the mass of poor, unskilled workers with irregular work grew. prices finally flattened out in the 1620s. society became polarized with a wealthy few growing wealthier and a mass of poor growing poorer. this social stratification became a permanent fixture of english society. poverty was no longer due to death of a spouse or parent, sickness or injury, or a phase in the life cycle such as youth or old age. many full-time wage earners were in constant danger of destitution. more subdivided land holdings in the country made holdings of cottagers minuscule. but these were eligible for parish relief under the poor laws. beside them were substantial numbers of rogues and vagabonds wandering the roads. these vagrants were usually young unmarried men. there were no more licensed liveries of lords. during the time 1580 to 1680, there were distinct social classes in england which determined dress, convention in comportment which determined face-to-face contacts between superiors and inferiors, order of seating in church, place arrangement at tables, and rank order in public processions. it was influenced by power, wealth, life-style, educational level, and birth. the various classes lived in separate worlds; their paths did not cross each other. people moved only within their own class. each class had a separate existence as well as a different life style from the other classes. so each class developed a wariness of other classes. however, there was much social mobility between adjacent classes. at the top were the gentry, about 2% of the population. theirs was a landed wealth with large estate mansions. they employed many servants and could live a life of leisure. their lady wives often managed the household with many servants and freely visited friends and went out shopping, riding, or walking. they conversed with neighbors and made merry with them at childbirths, christenings, churchings, and funerals. gentlemen usually had positions of responsibility such as lords of manors and leaders in their parishes. these families often sent the oldest son to university to become a justice of the peace and then a member of parliament. they also served as county officers such as high constable of their hundred and grand jury member. their social, economic, and family ties were at least countywide. they composed about 700 gentle families, including the peers, who had even more landed wealth, which was geographically dispersed. after the peers were: baronets (created in 1611), knights, esquires, and then ordinary gentlemen. these titles were acquired by being the son of such or by purchase. most gentry had a house in london, where they spent most of their time, as well as country mansions. about 4/5 of the land was in the hands of 7,000 of the nobility and landed gentry due in part to estate tails constructed by attorneys to favor hereditary interests. the gentry had also profited by commerce and possessions in the colonies. the country life of a country squire or gentleman dealt with all the daily affairs of a farm. he had men plough, sow, and reap. he takes part in the haying and getting cut grass under cover when a rain came. his sow farrows; his horse is gelded; a first lamb is born. he drags his pond and takes out great carps. his horses stray and he finds them in the pound. boys are bound to him for service. he hires servants, and some work out their time and some run away. knaves steal his sheep. his hog is stabbed. he and a neighbor argue about the setting up of a cottage. he borrows money for a daughter's dowry. he holds a leet court. he attends church on sunday and reads the lesson when called upon. he visits the local tavern to hear from his neighbors. country folk brawl. wenches get pregnant. men commit suicide, usually by hanging. many gentlemen spent their fortunes and died poor. new gentlemen from the lower classes took their places. the second class included the wealthier merchants and professional men of the towns. these men were prominent in town government. they usually had close family ties with the gentry, especially as sons. when wealthy enough, they often bought a country estate. the professional men included military officers, civil service officials, attorneys, some physicians, and a few clergymen. the instabilities of trade, high mortality rates in the towns, and high turnover rate among the leading urban families prevented any separate urban interest group arising that would be opposed to the landed gentry. also included in this second group were the most prosperous yeomanry of the countryside. the third class was the yeomanry at large, which included many more than the initial group who possessed land in freehold of at least 40s., partly due to inflation. freehold was the superior form of holding land because one was free to sell, exchange, or devise the land and had a political right to vote in parliamentary elections. other yeomen were those who possessed enough land, as copyholder or leaseholder, to be protected from fluctuations in the amount of the annual harvest, that is, at least 50 acres. a copyholder rented land from a lord for a period of years or lives, usually three lives including that of the widow, and paid a substantial amount whenever the copyhold came up for renewal. the copyholder and leaseholder were distinguished from the mere tenant-at-will, whose only right was to gather his growing crop when his landlord decided to terminate his tenancy. the average yeoman had a one and a half story house, with a milkhouse, a malthouse, and other small buildings attached to the dwelling. the house would contain a main living room, a parlor, where there would be one or more beds, and several other rooms with beds. no longer was there a central great hall. cooking was done in a kitchen or over the open fire in the fireplace of the main room. furniture included large oak tables, stools, long bencches with or without backs, chests, cupboards, and a few hard-backed simple chairs. dishware was wood or pewter. the yeomen often became sureties for recognizances, witnesses to wills, parish managers, churchwardens, vestrymen, the chief civil officers of parishes and towns, overseers of the poor, surveyors of bridges and highways, jurymen and constables for the justices of the peace, and sheriffs' bailiffs. the families and servants of these yeomen ate meat, fish, wheaten bread, beer, cheese, milk, butter, and fruit. their wives were responsible for the dairy, poultry, orchard, garden, and perhaps pigs. they smoked and cured hams and bacon, salted fish, dried herbs for the kitchen or lavender and pot-pourri for sweetening the linen, and arranged apples and roots in lofts or long garrets under the roof to last the winter. they preserved fruits candied or in syrup. they preserved wines; made perfumes, washes for preserving the hair and complexion, rosemary to cleanse the hair, and elder-flower water for sunburn; distilled beverages; ordered wool hemp, and flax to spin for cloth (the weaving was usually done in the village); fashioned and sewed clothes and house linens; embroidered; dyed; malted oats; brewed; baked; and extracted oils. many prepared herb medicines and treated injuries, such as dressing wounds, binding arteries, and setting broken bones. wives also ploughed and sowed, weeded the crops, and sheared sheep. they sometimes cared for the poor and sold produce at the market. some yeomen were also tanners, painters, carpenters, or blacksmiths; and as such they were frequently brought before the justices of the peace for exercising a craft without having served an apprenticeship. the third class also included the freemen of the towns, who could engage independently in trade and had political rights. these freemen were about one-third of the male population of the town. the fourth class included the ordinary farmer leasing by copyhold, for usually 21 years, five to fifty acres. from this class were drawn sidesmen [assistants to churchwardens] and constables. they had neither voice nor authority in government. their daily diet was bacon, beer, bread, and cheese. also in this class were the independent urban craftsmen who were not town freemen. their only voice in government was at the parish level. the fifth and lowest class included the laborers and cottagers, who were usually tenants at will. they were dependent on day labor. they started work at dawn, had breakfast for half an hour at six, worked until dinner, and then until supper at about six; in the summer they would then do chores around the barns until eight or nine. some were hedgers, ditchers, ploughmen, reapers, shepherds, and herdsmen. the cottagers' typical earnings of about 1s. a day amounted to about 200 shillings a year, which was almost subsistence level. accordingly they also farmed a little on their four acres of land with garden. some also had a few animals. they lived in one or two room cottages of clay and branches of trees or wood, sometimes with a brick fireplace and chimney, and few windows. they ate bread, cheese, lard, soup, and greens. if a laborer was unmarried, he lived with the farmer. theirs was a constant battle for survival. they often moved, because of deprivation, to seek opportunity elsewhere. the town wage-earning laborers ranged from journeymen craftsmen to poor casual laborers. the mass of workers in london were not members of guilds, and the crime rate was high. the last three classes also contained rural craftsmen and tradesmen, who also farmed. the variety of trades became very large, e.g. tinsmiths, chain smiths, pewterers, violin makers, and glass painters. the curriers, who prepared hides for shoemakers, coachmakers, saddlers, and bookbinders, were incorporated. the fourth and fifth classes comprised about three fourths of the population. then there were the maritime groups: traders, ship owners, master and seamen, and the fishers. over one fourth of all households had servants. they were the social equals of day laborers, but materially better off with food and clothing plus an allowance of money of two pounds [40s.] a year. those who sewed got additional pay for this work. there was no great chasm between the family and the servants. they did not segregate into a parlor class and a kitchen class. the top servants were as educated as their masters and ate at the same table. great households had a chaplain and a steward to oversee the other servants. there was usually a cook. lower servants ate together. servants were disciplined by cuffs and slaps and by the rod by master or mistress. maids wore short gowns, a large apron, and a gypsy hat tied down over a cap. chamber maids helped to dress their mistresses. servants might sleep on trundle beds stored under their master's or mistress's bed, in a separate room, or on the straw loft over the stables. a footman wore a blue tunic or skirted coat with corded loop fasteners, knee-britches, and white stockings. he walked or ran on foot by the side of his master or mistress when they rode out on horseback or in a carriage and ran errands for him, such as leading a lame horse home or running messages. a good footman is described in this reference letter: "sir, you wrote me lately for a footman, and i think this bearer will fit you: i know he can run well, for he has run away twice from me, but he knew the way back again: yet, though he has a running head as well as running heels (and who will expect a footman to be a stayed man) i would not part with him were i not to go post to the north. there be some things in him that answer for his waggeries: he will come when you call him, go when you bid him, and shut the door after him; he is faithful and stout, and a lover of his master. he is a great enemy to all dogs, if they bark at him in his running; for i have seen him confront a huge mastiff, and knock him down. when you go a country journey, or have him run with you a-hunting, you must spirit him with liquor; you must allow him also something extraordinary for socks, else you must not have him wait at your table; when his grease melts in running hard, it is subject to fall into his toes. i send him to you but for trial, if he be not for your turn, turn him over to me again when i come back..." dress was not as elaborate as in elizabethan times. for instance, fewer jewels were worn. ladies typically wore a brooch, earrings, and pearl necklaces. men also wore earrings. watches with elaborate cases were common. women's dresses were of satin, taffeta, and velvet, and were made by dressmakers. pockets were carried in the hand, fastened to the waist by a ribbon, or sewn in petticoats and accessible by a placket opening. the corset was greatly reduced. women's hair was in little natural-looking curls, a few small tendrils on the forehead with soft ringlets behind the ears, and the back coiled into a simple knot. men also wore their hair in ringlets. they had pockets in their trousers, first as a cloth pouch inserted into an opening in the side seam, and later sewn into the side seam. the bereaved wore black, and widows wore a black veil over their head until they remarried or died. rouge was worn by lower class women. toothbrushes, made with horsehair, were a new and costly luxury. the law dictating what classes could wear what clothes was difficult to enforce and the last such law was in 1597. merchants who had become rich by pirating could now afford to extend their trading ventures well beyond the atlantic sea. cotton chintzes, calicoes, taffetas, muslins, and ginghams from india now became fashionable as dress fabrics. simple cotton replaced linen as the norm for napkins, tablecloths, bed sheets, and underwear. then it became the fashion to use calicoes for curtains, cushions, chairs, and beds. its inexpensiveness made these items affordable for many. there was a cotton-weaving industry in england from about 1621, established by cotton workmen who fled to england in 1585 from antwerp, which had been captured. by 1616, there were automatic weaving looms in london which could be operated by a novice. even large houses now tended to do without a courtyard and became compacted into one soaring and stately whole. a typical country house had deep-set windows of glass looking into a walled green court with a sundial in it and fringed around with small trees. the gables roofs were steep and full of crooks and angles, and covered with rough slate if there was a source for such nearby. there was an extensive use of red tile, either rectangular or other shapes and with design such as fishscales. the rooms are broad and spacious and include hall, great parlor, little parlor, matted chamber, and study. in the hall was still the great, heavy table. dining tables were covered with cloth, carpet, or printed leather. meals were increasingly eaten in a parlor. noble men now preferred to be waited upon by pages and grooms instead of by their social equals as before. after dinner, they deserted the parlor to retire into drawing rooms for conversation and desserts of sweet wine and spiced delicacies supplemented by fruit. afterward, there might be dancing and then supper. in smaller parlors, there was increasing use of oval oak tables with folding leaves. chests of drawers richly carved or inlaid and with brass handles were coming into increased use. walls were lined with panels and had pictures or were hung with tapestry. carpets, rugs, and curtains kept people warm. there were many stools to sit on, and some arm chairs. wide and handsome open staircases separated the floors. upstairs, the sitting and bedrooms open into each other with broad, heavy doors. bedrooms had four-post beds and wardrobes with shelves and pegs. under the roof are garrets, apple-lofts, and root-chambers. underneath is a cellar. outside is a farmyard with outbuildings such as bake house, dairy, cheese-press house, brewery, stilling house, malt house, fowl house, dove cot, pig stye, slaughter-house, wood house, barns, stable, and sometimes a mill. there were stew-ponds for fish and a park with a decoy for wild fowl. there was also a laundry, carpenter's bench, blacksmith's forge, and pots and equipment of a house painter. in the 1600s, towns were fortified by walled ditches instead of relying on castles, which couldn't contain enough men to protect the townspeople. also in towns, water was supplied by local pumps and wells. in 1613, a thirty-eight-mile aqueduct brought spring water into london. in the country, floors were of polished wood or stone and strewn with rushes. a ladies' attendant might sleep the same bedroom on a bed which slid under the ladies' bed. apprentices and shop boys had to sleep under the counter. country laborers slept in a loft on straw. bread was made in each household. there were bedroom chairs with enclosed chamber pots. wood fires were the usual type. coal was coming into use in the towns and near coal mines. charcoal was also used. food was roasted on a spit over a fire, baked, or broiled. people still licked their fingers at meals. the well-to-do had wax candles. tallow dips were used by the poor and for the kitchen. people drank cordials and homemade wines made with grapes, currants, oranges, or ginger. some mead was also drunk. tobacco, potatoes, tea, asparagus, kidney beans, scarlet runners, cardoons (similar to artichokes), horseradish, sugarcane, and turkeys for christmas, were introduced from the new world, china, and india. tea was a rare and expensive luxury. coffee was a new drink. with the cane sugar was made sweetened puddings, pies, and drinks. the potato caused the advent of distillation of concentrated alcohol from fermented potato mashes. there was a distiller's company by 1638. distilleries' drinks had higher alcoholic content than wine or beer. the merchant adventurers sold in town stores silks, satins, diamonds, pearls, silver, and gold. there were women peddlers selling hats and hosiery from door to door and women shopkeepers, booksellers, alehouse keepers, linen drapers, brewers, and alewives. london had polluted air and water, industrial noise, and traffic congestion. work on farms was still year-round. in january and february, fields were ploughed and harrowed and the manure spread. also, trees and hedges were set, fruit trees pruned, and timber lopped. in march and april, the fields were stirred again and the wheat and rye sown. in may gardens were planted, hop vines trained to poles, ditches scoured, lambs weaned, and sheep watched for "rot". in june sheep were washed and sheared, and fields were spread with lime and clay, and manured. in july hay was cut, dried, and stacked. in august crops were harvested, which called for extra help from neighbors and townsmen who took holidays at harvesting. then there was threshing, and the sowing of winter wheat and rye. in the autumn, cider from apples and perry from pears might be made. by november the fall planting was finished and the time had come for the killing of cattle and hanging up their salted carcasses for winter meat. straw would be laid down with dung, to be spread next spring on the fields. stock that could not live outdoors in winter were brought into barns. government regulated the economy. in times of dearth, it ordered justices of the peace to buy grain and sell it below cost. it forbade employers to lay off workers whose products they could not sell. it used the star chamber court to enforce economic regulations. enclosures of land were made to carry on improved methods of tillage, which yielded more grain and more sheep fleece. drainage of extensive marsh land created more land for agriculture. waste land was used to breed game and "fowling" contributed to farmers' and laborers' livelihoods. killing game was not the exclusive right of landowners, but was a common privilege. the agricultural laborer, who worked for wages and composed most of the wageearning population, found it hard to make ends meet. there were food riots usually during years of harvest failure, in which organized groups seized foodstuffs being transported or in markets. also, there were enclosure riots, in which organized groups destroyed hedges and fences erected in agrarian reorganization to restrict access to or to subdivide former common pasture land. these selfhelp riots were last resorts to appeals. they were relatively orderly and did not expand into random violence. the rioters were seldom punished more than a fining or whipping of the leaders and action was taken to satisfy their legitimate grievances. the poor came to resent the rich and there was a rise in crime among the poor. penal laws were frequently updated in an effort to bring more order. in 1610, weekly wages for a mason were 8s. or 5s., for a laborer were 6s. or 4s., for a carpenter 8s. or 6s. an unskilled laborer received 1s. a day. there were conventions of paternalism and deference between neighbors of unequal social status. a social superior often protected his lessers from impoverishment for instance, the landlord lessened rents in times of harvest failure. a social superior would help find employment for a lesser person or his children, stand surety for a recognizance, intervene in a court case, or have his wife tend a sick member of his lesser's family. a social obligation was felt by most of the rich, the landlords, the yeomen farmers, and the clergy. this system of paternalism and social deference was expressed and reinforced at commonly attended village sports and games, dances, wakes and "ales" (the proceeds of which went to the relief of a certain person in distress), "rush-bearings", parish feasts, weddings, christenings, "churchings" to give thanks for births, and funerals. even the poor were buried in coffins. also there was social interaction at the local alehouse, where neighbors drank, talked, sang, and played at bowls or "shove goat" together. quarrelling was commonplace. for instance, borough authorities would squabble over the choice of a schoolmaster; the parson would carry on a long fight with parishioners over tithe hens and pigs; two country gentlemen would continue a vendetta started by their great-grandfathers over a ditch or hunting rights; the parishioners would wrangle with the churchwardens over the allocation of pews. the position of one's pew reflected social position. men tried to keep the pews of their ancestors and the newly prosperous wanted the recognition in the better pews, for which they had to pay a higher amount. but, on the other hand, farmers were full of good will toward their neighbors. they lent farm and kitchen equipment, helped raise timbers for a neighbor's new barn, sent food and cooked dishes to those providing a funeral feast and to the sick and incurable. village standards of behavior required that a person not to drink to excess, quarrel, argue, profane, gossip, cause a nuisance, abuse wife or children, or harbor suspicious strangers, and to pay scot and bear lot as he was asked. neighbors generally got along well and frequently borrowed and loaned small sums of money to each other without interest for needs that suddenly arose. bad behavior was addressed by the church by mediation and, if this failed, by exclusion from holy communion. there was also whipping and the stocks. marital sex was thought to be good for the health and happiness of the husband and enjoyable by wives. the possibility of female orgasm was encouraged. both women and men were thought to have "seed" and drank certain potions to cause pregnancy or to prevent birth. some argued that orgasm of both partners was necessary for the "seed" of the male and female to mix to produce pregnancy. most women were in a virtual state of perpetual pregnancy. both catholics and protestants thought that god wanted them to multiply and cover the earth. catholics thought that the only goal of sex was procreation. men were considered ready for marriage only when they could support a family, which was usually at about age 30. brides were normally virgins, but there was bridal pregnancy of about 20%. women usually married at about age 25. marriages were usually within one's own class and religion. the aristocracy often initiated matches of their children for the sake of continuity in the family estates and tried to obtain the consent of their children for the match in mind. the age of consent to marry was 14 for boys and 12 for girls. girls in arranged marriages often married at 13, and boys before they went to university. but the girls usually stayed with their parents for a couple of years before living with their husbands. if married before puberty, consummation of the marriage waited for such time. in other classes, the initiative was usually taken by the child. dowries and marriage portions usually were given by the parents of the bride. wet-nurses frequently were used, even by puritans. there were no baby bottles. many babies died, causing their parents much grief. about 1/4 of women's deaths occurred during childbirth. a child was deemed to be the husband's if he was within the four seas, i.e. not in foreign lands, for an agreed length of time. illegitimacy was infrequent, and punished by church-mandated public penance by the mother and lesser penance and maintenance by the father. the church court punished adultery and defamation for improper sexual conduct. the established church still taught that the husband was to be the authority in marriage and had the duty to provide for, protect, and maintain his wife. wives were to obey their husbands, but could also admonish and advise their husbands without reproach. in literature, women were portrayed as inferior to men intellectually and morally as well as physically. in reality wives did not fit the image of women portrayed by the church and literature. quarrels between husband and wife were not uncommon and were not stopped by a husband's assertion of authority. wives were very active in the harvesting and did casual labor of washing, weeding, and stone-picking. farmers' and tradesmen's wives kept accounts, looked after the garden, orchard, pigs, and poultry; brewed beer; spun wool and flax; and acted as agents in business affairs. wives of craftsmen and tradesmen participated actively in their husbands' shops. wives of weavers spun for their husband's employers. wives of the gentry ran their households with their husbands. the lady of a large mansion superintended the household, ordering and looking after the servants, and seeing to the education of her children. mothers handed down their recipes to their daughters. women still did much needlework and embroidering for clothing and house, such as cushions, screens, bed curtains, window curtains, hangings, footstools, book covers, and small chests of drawers for valuables. liking simplicity, puritan women did less of this work. naming one's wife as executor of one's will was the norm. jointures [property for a widow] were negotiated at the betrothal of ladies. widows of manorial tenants were guaranteed by law one-third of family real property, despite creditors. but most testators went beyond this and gave a life interest in the farm or family house. so it was customary for a widow to remain in occupation of the land until her death or remarriage. few widows or widowers lived with one of their children. widows usually had their husband's guild rights and privileges conferred upon them, e.g. to receive apprentices. in london, custom gave 1/3 of a deceased husband's estate to his wife on his death, but 2/3 if there were no children. the other part went according to his will. if a widow did not remarry in memory of her husband, she was esteemed. but remarriage was common because the life expectancy after birth was about 35 years. sons of the well-to-do went into law, the church, the army, or the navy. if not fit for such, they usually went into a trade, apprenticing, for instance, with a draper, silk merchant, or goldsmith. sometimes a son was sent to the house of a great man as a page or esquire to learn the ways of courtiers and perhaps become a diplomat. the guild with its master and their employees was being replaced by a company of masters. james i ruled over both england and scotland. he had come from scotland, so was unfamiliar with english love of their rights, passion for liberty and justice, and extensive discussing of religion and quoting scripture. when he came to the throne, he had a conference with a group of puritans who asked for certain reforms: ceremonies such as the cross in baptism and the ring in marriage should not be used, only educated men competent to preach should be made ministers, bishops should not be allowed to hold benefices that they did not administer, and minor officials should not excommunicate for trifles and twelve-penny matters. he not only denied their requests, but had the english bible revised into the king james version, which was published in 1611. this was to replace the popular geneva bible written by english protestant refugees from catholic queen mary's reign, which he did not like because some of its commentary was not highly favorable to kings. james didn't believe a king had to live by the law; he hadn't as king of scotland. he tried to imbue into england the idea of a divine right of kings to rule that he had held in scotland. the established church quickly endorsed and preached this idea. the selection of the clergy of the parish churches was now often in the hands of the parishioners, having been sold to them by the patron lord of the manor. some patrons sold the right of selection to a tradesman or yeoman who wished to select his son or a relative. some rights of selection were in the hands of bishops, the colleges, and the crown. the parish clergyman was appointed for life and removed only for grave cause. most parishioners wanted a sermon created by their minister instead of repetitious homilies and constant prayer. they thought that the object of worship in church was to rouse men to think and act about the problems of the world. in 1622, the king mandated that clergymen quote scripture only in context of the book of articles of religion of 1562 or the two books of homilies and not preach any sermon on sunday afternoon except on some part of the catechism or some text out of the creed, ten commandments, or the lord's prayer. the puritan movement grew. about 5% of the protestants were puritans. these included country gentlemen and wealthier traders. they dressed simply in gray or other drab colors and wore their hair short to protest the fashion of long curls. they lived simply and disapproved of dancing because it induced lasciviousness and of theater because of its lewdness. theaters and brothels still shared the same neighborhoods, the same customers, and sometimes the same employees. prostitutes went to plays to find customers; men shouldered and shoved each other in competing to sit next to attractive women to get to know them. the puritans also disapproved of cock fights because they led to gambling and disorder, and maypole celebrations because of their paganism. there was less humor. many became stoics. the puritan church ceremonies were plain, with no ornamentation. puritans prayed several times a day and read the bible to each other in family groups to look for guidance in their conduct and life. they asked for god to intervene in personal matters and looked for signs of his pleasure or displeasure in happenings such as a tree falling close but not touching him, or his horse throwing him without injury to him. when there was an illness in the family or misfortune, they examined their past life for sins and tried to correct shortcomings. they circulated records of puritan lives including spiritual diaries. they believed in the equality of men and that a good man was better than a bad peer, bishop, or king. puritan influence made families closer and not merely dependent on the will of the husband or father. there was a sense of spiritual fellowship among family members as individuals. they emphasized the real need of a lasting love relationship between husband and wife, so a mutual liking that could develop into love between a young couple in an arranged match was essential. most puritans felt that the bishops were as tyrannical as the pope had been and that more reform was needed. they favored the presbyterian form of church government developed by john calvin in switzerland. the presbyter was the position below bishop. parishes were governed by boards consisting of a minister and lay elders elected by the parishioners. these boards sent elected representatives to councils. all lay elders and ministers had equal rank with each other. the calvinist god preordained salvation only for the elect and damnation and everlasting punishment for the rest of humanity, but the puritans had an optimism about avoiding this damnation. they believed that at his conversion a person received grace, which was a sign that he was predestined for salvation. they rejected all ecclesiastical institutions except as established by each parish over its own elected pastor and members. they rejected the established church's control from the top by bishops. they believed in negotiating directly with god for the welfare of the soul without the priest or church organization. the fear of witchcraft grew with puritanism. poor decrepit old defenseless women, often deformed and feeble-minded, were thought to be witches. their warts and tumors were thought to be teats for the devil to suck or the devil's mark. cursing or ill-tempers, probably from old age pains, or having cats were further indications of witchery. when the king learned in 1618 that the english puritans had prevented certain recreations after the sunday service, he proclaimed that the people should not be restrained from lawful recreations and exercise such as dancing, may-games, whitsunales, morris-dances, may-pole sports, archery for men, leaping, and vaulting. also women could carry rushes to decorate the church as they had done in the past. his stated purpose was to prevent people such as catholics from being deterred from conversion, to promote physical fitness for war, and to keep people from drinking and making discontented speeches in their ale houses. still unlawful on sunday were bear and bull baitings and bowlings. besides the puritans, there were other independent sects, such as the congregationalists, whose churches gathered together by the inspiration of jesus. this sect was started by english merchants residing in holland who set up congregations of englishmen under their patronage there; they kept minister and elders well under their control. the baptists emerged out of the independents. they believed that only adults, who were capable of full belief, and not children, could be baptized. they also believed that it was the right of any man to seek god's truth for himself in the scriptures and that obedience to the state should not extend beyond personal conscience. one fourth of all children born did not live to the age of ten, most dying in their first year. babies had close caps over their head, a rattle, and slept in a sturdy wood cradle that rocked on the floor, usually near the hearth. babies of wealthier families had nurses. the babies of ladies were suckled by wet nurses. parents raised children with affection and tried to prepare them to become independent self-sustaining adults. there was less severity than in tudor times, although the maxim "spare the rod and spoil the child" was generally believed, especially by puritans, and applied to even very young children. in disciplining a child, an admonition was first used, and the rod as a last resort, with an explanation of the reasons for its use. there were nursery rhymes and stories such as "little bo-peep", "jack and the beanstalk", "tom thumb", "chicken little", and robin hood and king arthur tales, and probably also "puss in boots", "red ridinghood", "cinderella", "beauty and the beast", "bluebeard" and aesop's fables. "little jack horner" who sat in a corner was a satire on the puritan aversion to christmas pudding and sense of conscious virtue. toys included dolls, balls, drums, and hobby horses. children played "hide and seek", "here we go around the mulberry bush", and other group games. school children were taught by "horn books". this was a piece of paper with the alphabet and perhaps a religious verse, such as the paternoster prayer, that was mounted on wood and covered with thin horn to prevent tearing. little girls cross-stitched the alphabet and numerals on samplers. block alphabets were coming into use. most market towns had a grammar school which would qualify a student for university. they were attended by sons of noblemen, country squires [poor gentlemen], merchants, and substantial yeomen, and in some free schools, the poor. school hours were from 6:00 a.m. to noon or later. multiplication was taught. if affordable, families had their children involved in education after they were small until they left home at about fifteen for apprenticeship or service. otherwise, children worked with their families from the age of seven, e.g. carding and spinning wool, until leaving home at about fifteen. there were boarding schools such as winchester, eton, westminster, st. paul's, and merchant taylors'. there, senior boys selected for conduct and ability supervised younger boys. they thereby got experience for a future in public life. the system was also a check on bullying of the weak by the strong. the curriculum included lilly's "grammar"; aesop; terence's roman comic plays; virgil's "aeneid", the national epic of rome; cicero's "letters" reflecting roman life; sallust's histories showing people and their motives; caesar's "commentaries" on the gallic and civil wars; horace's "epistles" about life and poetry; poet ovid's "metamorphoses" on adventures and love affairs of deities and heroes, "fasti" on roman religious festivals and customs; donatus' grammar book; and other ancient latin authors. football, with hog bladders, and tennis were played. these schools were self-supporting and did their own farming. private schools for girls were founded in and around london. they were attended by daughters of the well-to-do merchant class, nobility, and gentry. they were taught singing, playing of instruments, dancing, french, fine sewing, embroidery, and sometimes arithmetic. there were not many girls' boarding schools. fewer served in the house of some noble lady as before. most commonly, the sons and daughters of gentlemen and nobles were taught by private tutors. a tutor in the house educated the girls to the same extent as the boys. frequently, the mother educated her daughters. a considerable number of girls of other backgrounds such as the yeomanry and the town citizenry somehow learned to read and write. boys began at university usually from age 14 to 18, but sometimes as young as 12. the universities provided a broad-based education in the classics, logic and rhetoric, history, theology, and modern languages for gentlemen and gave a homogenous national culture to the ruling class. there was a humanist ideal of a gentleman scholar. the method of study was based largely on lectures and disputations. each fellow had about five students to tutor. in many cases, he took charge of the finances of his students, paying his bills to tradesmen and the college. his reimbursement by the students' fathers put them into friendly contact with the family. the students slept in trundle beds around his bed and had an adjacent room for study. aristotle, whose authority was paramount, remained the lynch pin of university studies, especially for logic and dialectic. the study of rhetoric was based on quintilian, the latin writer, and the greek treatise of hermogenes of tarsus. also studied was cicero's orations as models of style. examination for degrees was by disputation over a thesis of the student. the b.a. degree was given after four years of study, and the m.a. after three more. there were advanced degrees in civil law, which required seven more years of study, medicine, seven years, divinity, more than seven years, and music. many of the men who continued for advanced degrees became fellows and took part in the teaching. most fellowships were restricted to clerics. oxford and cambridge universities operated under a tutorial system. access to grammar schools and universities was closed to girls of whatever class. oxford university now had the bodleian library. in the universities, there were three types of students: poor scholars, who received scholarships and also performed various kinds of service such as kitchen work and did errands for fellows such as carrying water and waiting on tables; commoners, who paid low fees and were often the sons of economical gentlemen or businessmen; and the fellow commoners, a privileged and well-to-do minority, usually sons of noblemen or great country gentlemen. the fellow commoners paid high fees, had large rooms, sometimes had a personal tutor or servant, and had the right to eat with the fellows at high table. here, gentlemen made friends with their social equals from all over the country. students wore newfashioned gowns of many colors and colored stockings. they put on stage plays in latin and english. the students played at running, jumping, and pitching the bar, and at the forbidden swimming and football. they were not to have irreligious books or dogs. cards and dice could be played only at christmas time. students still drank, swore, and rioted, but they were disallowed from going into town without special permission. those below a b.a. had to be accompanied by a tutor or an m.a. they were forbidden from taverns, boxing matches, dances, cock fights, and loitering in the street or market. sometimes a disputation between two colleges turned into a street brawl. punishment was by flogging. each university had a chancellor, usually a great nobleman or statesman, who represented the university in dealings with the government and initiated policies. the vice-chancellor was appointed for a year from the group of heads of college. he looked out for the government of halls, enforced the rules of the university, kept its courts, licensed wine shops, and shared control of the town with the mayor. tutors were common. they resided at the boy's house or took boys to board with them at their houses in england or on the continent. the tutor sometimes accompanied his student to grammar school or university. puritans frequently sent their sons to board in the house of some frenchman or swiss protestant to learn the calvinist doctrines or on tour with a tutor. certain halls in the universities were predominately puritan. catholics were required to have their children taught in a home of a protestant, a relative if possible. the inns of court were known as "the third university". it served the profession of law, and was a training ground for the sons of nobility and the gentry and for those entering the service of the commonwealth. the inns were self-governing and ruled by custom. students were to live within the inn, two to a room, but often there were not enough rooms, so some students lived outside the quadrangles. every student was supposed to partake of commons or meals for a certain fraction of the year from eight weeks to three months and there to argue issues in cases brought up by their seniors. in hall the students were not allowed to wear hats, though caps were permitted, nor were they to appear booted or spurred or carrying swords. for the first two years, they would read and talk much of the law, and were called clerks commoners. after two years they became mootmen or inner barristers. in five or six years they might be selected to be called to the bar as utter barristers, whose number was fixed. there was no formal examination. the utter barrister spent at least three more years performing exercises and assisting in directing the studies of the younger men. after this time, he could plead in the general courts at westminster, but usually carried on law work in the offices of other men and prepared cases for them. participating in moots (practice courts) was an important part of their education. lectures on statutes and their histories were given by readers. physicians were licensed by universities, by the local bishop, or in london, by the college of physicians and surgeons. most were university graduates, and because of the expense of the education, from well-to-do families. for the b.a., they emphasized greek. for the m.a., they studied the works of greek physicians galen and hippocrates, roman physician claudius, and perhaps some medieval authorities. after the m.a., they listened to lectures by the regius professor of medicine and saw a few dissections. three years of study gave them a m.b., and four more years beyond this the m.d. degree. a physician's examination of a patient cost 10s. the physician asked about his symptoms and feelings of pain, looked at his eyes, looked at his body for spots indicative of certain diseases, guessed whether he had a fever, felt his pulse, and examined his urine and stool. there were no laboratory tests. smallpox was quickly recognized. wrapping red cloth around the person and covering the windows with red cloth being promoted healing without scarring. gout was frequent. syphilis was common in london and other large centers, especially in court circles. it was ameliorated by mercury. an imbalance of the four humors: blood, phlegm, choler, bile was redressed by bloodletting, searing, draining, and/or purging. heart trouble was not easily diagnosed and cancer was not recognized as a life-threatening disease. childbirth was attended by physicians if the patient was well-to-do or the case was serious. otherwise women were attended only by midwives. they often died in childbirth, many in their twenties. a visit by a physician cost 13s.4d. melancholia, which made one always fearful and full of dread, and mania, which made one think he could do supernatural things, were considered to be types of madness different from infirmities of the body. despite a belief held by some that anatomical investigation of the human body was a sin against the holy ghost, physicians were allowed to dissect corpses. so there were anatomy textbooks and anatomy was related to surgery. barber-surgeons extracted teeth and performed surgery. the white and red striped barber pole initially indicated a place of surgery; the red represented blood and the white bandages. the theory of nutrition was still based on the four humors and deficiency diseases were not understood as such. physician william harvey, son of a yeoman, discovered the circulation of the blood from heart to lungs to heart to body about 1617. he had studied anatomy at padua on the continent and received an m.d. there and later at cambridge. then he accepted a position at the hospital of st. bartholomew to treat the poor who came there at least once a week for a year. he agreed to give the poor full benefit of his knowledge, to prescribe only such medicines as should do the poor good without regard to the pecuniary interest of the apothecary accompanying him, to take no reward from patients, and to render account for any negligence on his part. he also dissected animals. one day he noted when stroking downward on the back of one hand with the finger of the other, that a vein seemed to disappear, but that it reappeared when he released his finger. he surmised that there was a valve preventing the bloodâ�s immediate return to the vein. then he ascertained that the heart was a pump that caused pulses, which had been thought to be caused by throbbing of the veins. he tied the arteries and found that the arterial blood flowed away from the heart. he tied the veins and found that venal blood flowed into the heart. he found that the blood flowed from the lungs to the left side of the heart, and from thence was pumped out to the body. blood also flowed from the body to the right side of the heart, from which it was pumped to the lungs. the two contractions closely followed one another, rather than occurring at the same time. the valves in the veins prevented backflow. it was now clear why all the blood could be drained away by a single opening in a vein. it was also clear why a tight ligature, which blocked the arteries, made a limb bloodless and pale and why a looser ligature, which pressed only on the veins, made a limb swell turgid with blood. multiplying an estimate of the amount of blood per beat with the number of beats, he concluded that the amount of blood did not change as it circulated. he concluded that the only purpose of the heart was to circulate the blood. this diminished the religious concept that the heart was the seat of the soul and that blood had a spiritual significance and was sacred. the physicians turned surgery over to the surgeons, who received a charter in 1605 by which barbers were excluded from all surgical work except bloodletting and the drawing of teeth. surgeons dealt with skin disease, ulcers, hernia, bladder stones, and broken bones, which they had some skill in setting. they performed amputations, which were without antiseptics or anesthesia. internal operations usually resulted in death. caesarian section was attempted, but did not save the life of the mother. apprenticeship was the route to becoming a surgeon. a college of surgeons was founded. students learned anatomy, for which they received the corpses of four executed felons a year. the apothecaries and grocers received a charter in 1607, but in 1618, the apothecaries were given the sole right to purchase and sell potions, and to search the shops of grocers and stop the sale by them of any potions. in london, the apothecaries were looked over by the college of physicians to see that they were not selling evil potions or poisons. in 1618 was the first pharmacy book. there were three hospitals in london, two for the poor, and bedlam [bethlehem] hospital for the insane. others were treated at home or in the physician's home. theaters were shut down in times of plague to prevent spread of disease there. towndwellers who could afford it left to live in the country. shakespeare wrote most of his plays in this period. most popular reading was still bibles, prayer books, psalm books, and devotional works. also popular were almanacs, which started with a single sheet of paper. an almanac usually had a calendar; information on fairs, roads, and posts; farming hints; popularized scientific knowledge; historical information; sensational news; astrological predictions; and later, social, political, and religious comment. many households had an almanac. books tried to reconcile religion and science as well as religion and passion or sensuality. walter ralegh's "history of the world", written while he was in prison, was popular. ben johnson wrote poetry and satiric comedies. gentlemen read books of manners such as james cleland's "institution of a young noble man" (1607). in 1622, the first regular weekly newspaper was started. although there was a large advance in the quality of boys' education and in literacy, the great majority of the people were unable to read fluently. since writing was taught after one could read fluently, literacy was indicated by the ability to sign one's name. almost all gentlemen and professional men were literate. about half the yeomen and tradesmen and craftsmen were. only about 15% of husbandmen, laborers, servants, and women were literate. the elizabethan love of madrigal playing gradually gave way to a taste for instrumental music, including organs and flutes. the violin was introduced and popular with all classes. ballads were sung, such as "barbary allen", about a young man who died for love of her, after which she died of sorrow. when they were buried next to each other, a rose from his grave grew around a briar from her grave. the ballad "geordie" relates a story of a man hanged for stealing and selling sixteen of the king's royal deer. the ballad "matty groves" is about a great lord's fair young bride seducing a lad, who was then killed by the lord. in the ballad "henry martin", the youngest man of three brothers is chosen by lot to turn pirate to support his brothers. when his pirate ship tries to take a merchant ship, there is sea fight in which the merchant ship sinks and her men drown. the ballad "the trees they do grow high" tells of an arranged marriage between a 24 year old woman and the 14 year old son of a great lord. she tied blue ribbons on his head when he went to college to let the maidens know that he was married. but he died at age 16, after having sired a son. may day was a holiday with dancing around a maypole and people dressed up as characters such as queen of the may, robin hood, little john, friar tuck, maid marion, the fool, and the piper. new year's day was changed to january 1st. golf was played in scotland, and james introduced it into england. james i was the last monarch to engage in falconry. francis bacon wrote the "advancement of learning" and "novum organum" (new learning) in which he encouraged the use of the inductive method to find out scientific truths and also truths in general, that is reasoning from a sample to the whole. according to him, the only way to arrive at the truth was to observe and determine the correlations of facts. he advocated a process of elimination of hypothesized ideas. first, experiments were made, then general conclusions were drawn from them, and then these generalizations were tested in further experiments. his "new learning" showed the way out of the scholastic method and reverence for dogma into the experimental method. he wrote "natural and experimental history". he studied the effect of cold in preventing animal putrefaction. by this time, what was known about mathematics included fractional exponents, trigonometry in terms of arcs of angles, long division, square root symbol, decimal fractions, methods for solving cubic equations, trigonometry in terms of ratios of sides of a right triangle, equal sign, plus and minus signs, and a consistent theory of imaginary numbers. john napier, a large calvinist landholder in scotland who had built his own castle, did mathematics in his older years. he explored imaginary numbers, which involve square roots of negative numbers. by 1614, he had started and developed the theory of logarithms: the relationships among positive and negative exponents of numbers. this simplified calculations because the multiplication and division of numbers with a common base could be done by addition and subtraction of their exponents. his table of logarithms, which took him twenty years to compile, was used in trigonometry, navigation, and astronomy. it reduced the enormous labor involved in trigonometric calculations. in 1622, willliam oughtred invented the slide rule for calculations. galileo galilei was a professor of mathematics at the university of padua in italy and was later a protege of the powerful medici family. he conducted experiments, e.g. throwing objects off the tower of pisa in 1590 to show that all, whether light or heavy, fall at the same rate. this disproved the widely held belief that heavier objects fall faster than light objects. he reasoned by induction from experiments that the force of gravity has the same effect on all objects regardless of their size or weight. his law stated that the speed of their descent increases uniformly with the time of the fall, i.e. speed [velocity] = gravity's acceleration multiplied by time. this was a pioneering mathematization of a physical phenomenon. from his observation that an object sliding along a plane travels increasingly farther and slows down at a decreasing rate as the surfaces become smoother and more lubricated, he opined that the natural state of a body in motion is to stay in motion, and that it is slowed down by a resistant force, which he called â�frictionâ�. he conceived of the air giving a frictional force to an object moving through the air. from his experiments showing that a rolling ball rolls up a plane farther the lesser the slope of the plane, he intuited that if the plane were horizontal, the ball would never stop rolling except for friction. he opined that bodies that are at rest stay at rest and bodies that are in motion stay in uniform motion (â�inertiaâ�), unless and until acted upon by some force. this was a radical departure from aristotle's theory that any horizontal motion requires a prime mover. galileo drew a graph of distance versus time for the rolling ball, which indicated that the distance traveled was proportional to the square of the time elapsed. he put his ideas of vertical and horizontal motion together to explain the movement of projectiles, which travel horizontally, but also fall downward vertically. he realized that the movement of a projectile involved a horizontal impetus of projection and a vertical force of gravity, each being independent of the other, but acting simultaneously, instead of sequentially. he demonstrated that a projectile follows the path of a parabola, instead of a straight line, and that it descends a vertical distance which is proportional to the square of the time taken to fall. that is, a thrown object will strike the ground in the same amount of time as an object simply dropped from the same height. this suggested that gravity was a constant force. galilieo described mathematically the motion of a lever such as a seesaw in which the weight on one side multiplied by its distance from the fulcrum is equal to the weight on the other side multiplied by its distance from the fulcrum. galileo determined that a pendulum, such as a hanging lamp, swings back and forth in equal intervals of time. he measured this time with water running through a tube; the weight of the water was proportional to the time elapsed. also, pendulums with equal cord length swing at the same rate, regardless of the substance, weight, or shape of the material at the end. so a pendulum could be a mechanical clock. galileo knew that ice floated on water because ice is less dense and therefore lighter than water. it had formerly been thought that ice was heavier than water, but floated on water because of its shape, especially broad, flat-bottomed pieces of ice. the telescope was invented in 1608. the next year, galileo built a greatly improved telescope to observe bodies in the skies. he observed that the spots on the moon had shifting illumination and that the moon's perimeter had a jagged outline. from this he deduced that the surface of the moon had mountains, valleys, and craters much like the earth, and was illuminated by reflected light. he noticed that the planet jupiter had moons orbiting it in a manner similar to the orbit of the earth's moon. he observed that when the planet venus was very small it had a round shape and when it was very large, and therefore nearer the earth, it had a crescent shape. also, venus progressed through periodic phases of increasingly wide crescent shapes in a manner similar to the phases of crescent shapes of the earth's moon. he realized that these features of venus could be explained only if venus revolved around the sun, rather than around the earth. this finding added credence to the copernican theory that the earth and all planets revolve around the sun. but church doctrine that the sun revolved around the earth was supported by the biblical story of god making the sun stand still to give additional sunlight on a certain day so a certain task could be completed that day. galileo argued against a literal interpretation of the bible, so he was denounced by the church. his finding of sunspots on the sun conflicted with church doctrine that the celestial bodies such as the sun were perfect and unblemished. his observation that certain sun spots were on certain locations of the sun, but changed location over time, suggested that the sun might be rotating. he observed that when air was withdrawn by a suction pump from the top of a long glass tube whose lower open end was submerged in a pan of water, the water rose to a height of 34 feet and no higher. this result indicated that the evacuated space above the water was a vacuum: an empty space. the notion of a vacuum, a space where there is nothing or void, was difficult for philosophers to accept. they believed that nature abhored a vacuum and would prevent it. about 1600, galileo invented the first thermometer by heating air at the top of a tube whose open end was in a bowl of water; as the top end cooled, the air contracted and water rose part way up the tube; the column of water rose or fell with every change of temperature. galileo invented the compound refracting microscope, which used more than one lens, about 1612. galileo's book on the arguments for and against the copernican theory was unexpectedly popular when published in 1632. the general public was so persuaded by the arguments that the earth revolved around the sun that papal authority felt threatened. so galileo was tried and convicted of heresy and sentenced to house arrest as an example to others who might question church doctrine, even though the seventy year old galileo recanted and some of the inquisition judges who convicted him believed the copernican theory and their decision did not assert the contrary. johannes kepler was a mathematician from germany who made his living as an astrologer. he was in contact with galileo by letter, as most scientists of europe were with each other. kepler was fascinated with perfect geometric shapes, which he tried to relate to celestial phenomenon. he discerned that the orbit of mars was not perfectly circular. he knew that the apparent path of the sun with respect to the constellation of fixed stars differed in speed at different times of the year. he opined that this showed that the speed of the earth revolving around the sun varied according to the time of year. then he measured the angles between the earth and the sun and the earth and mars as they changed through the martian year. he noted when the earth, mars, and the sun were on the same straight line. then he deduced the earth's true orbit, and from this the true orbits of the other planets. then by trial and error, he attempted to match this empirical data with regular mathematically defined shapes, until he discovered in 1609 that these paths were elliptical. also, the planets each move faster when they are nearer the sun and more slowly when they are farther from the sun so that in equal time intervals, a line from the planet to the sun will sweep out equal areas. this observation led him to opine that there is a force between the sun and each planet, and that this force is the same as that which keeps the moon in its orbit around the earth. thirdly, in 1619, he found that the square of the time for each planet's orbit about the sun is proportional to the cube of that planet's mean distance from the sun, so that the farther planets orbit at a slower speed. he connected the earth's tides with the gravitational pull of the moon. kepler also confirmed that the paths of comets were governed by a law and were farther from the earth than the moon. this contradicted the church's explanation that what lies within the moon's orbit pertains to the earth and is essentially transitory and evil, while what lies beyond belongs to the heavens and is permanent and pure. renee descartes, a french mathematician, scientist, and philosopher, had a revelation that the structure of the universe was mathematical and that nature obeyed mathematical rules. in 1637, he invented analytic [cartesian] geometry, in which lines and geometric shapes can be described by algebraic equations and vice-versa. all conic sections: circles, ellipses, parabolas, and hyperbolas, could be represented by equations with two unknowns, or variables, on a coordinate system in which each point is represented by a pair of numbers representing distances from the two axis lines. an algebraic equation with two unknowns, could be represented as a shape thereon. an algebraic equation with one unknown represented a straight line thereon. the points of intersection geometrically were equivalent to the common solution of the associated algebraic equations. he started the convention of representing unknown quantities by x, y, and z and known quantities by a, b, and c. so, for instance, a circle with center at point 2,3 and a radius of 4 was represented by the equation: (x-2) squared + (y-3) squared = 4. he pioneered the standard exponential notation for cubes and higher powers of numbers. analytic geometry aided in making good lenses for eyeglasses. the glass was first manufactured with attention to quality. then, after it cooled and solidified, the clearest pieces were picked and their surfaces ground into the proper curvature. descartes formulated the law of refraction of light, which deduces the angle of refraction [deflection] of light through a medium from the lights' angle of incidence and the speed of light in each media in which the light passes. this explained why a rainbow is circular. in 1644, he described the universe in terms of matter and motion and suggested that there were universal laws and an evolutionary explanation for such. he opined that all effects in nature could be explained by spatial extension and motion laws that 1) each part of matter retains the shape, size, motion, or rest unless collision with another part occurs; 2) one part of matter can only gain as much motion through collision as is lost by the part colliding with it; and 3) motion tends to be in a straight line. descartes feared persecution by the church because his ideas did not correlate with the biblical notion of god's creation of the universe in the order of light, then sky and oceans and dry land, then plants, then seasons and the sun and moon and stars, then fish and birds, then all animals, and finally man. descartes believed in a good and perfect god, and thought of the world as divided into matter and spirit. the human mind was spirit and could exist outside the human body. without the mind, human body was a machine. the human mind had knowledge without sense experience, e.g. the truths of mathematics and physics. ideas and imagination were innate. his observation that sensory appearances are often misleading, such as in dreams or hallucinations, led him to the conclusion that he could only conclude that: "i think, therefore i am." he rejected the doctrine that things had a proper behavior according to their natures, e.g. the nature of acorns is to develop into oak trees. as an example of erroneous forming of conceptions of substance with our senses alone, he pointed out that honeycomb has a certain taste, scent, and texture, but if exposed to fire, it loses all these forms and assumes others. he considered to be erroneous the belief that there are no bodies around us except those perceivable by our senses. he was a strong proponent of the deductive method of finding truths, e.g. arguing logically from a very few selfevident principles, known by intuition, to determine the nature of the universe. christian huygens, a dutch physicist, used the melting and the boiling point of water as fixed points in a scale of measurements, which first gave definiteness to thermometric tests. there was much mining of coal, tin, copper, lead, and iron in the 1600s. coal was transported from the coal pits down to the rivers to be loaded onto ships on coal wagons riding on wooden rails. the full coal cars could then be sent down by gravity and the empty wagons pulled up by horses. sheet metal, e.g. lead, was used for roofing. coal was much used for heating houses, and for laundry, cooking, and industrial use, such as extraction of salt, soap boilers, and manufacture of glass, bricks and tiles for buildings, anchors for ships, and tobacco pipes. it was used in the trades: bakers, confectioners, brewers, dyers, sugar refiners, coopers, starch makers, copper workers, alum makers, and iron workers. in 1604 the haberdashers, who sold imported felt for hats, got a charter of incorporation. a tapestry factory was established in 1619. flax-working machines came into existence. the royal postal system carried private as well as royal letters, to increase income to the crown. postmasters got regular pay for handling without charge the mail of letters that came from or went to the letter office in london. the postmaster kept horses which he let, with horn and guide, to persons riding "in post" at 3d. per mile. the post was to travel 7 mph in summer and 5 mph in winter and sound his horn four times in every mile or whenever he met travelers. wool and animals for butchering were sold in london with the sellers' agent in london taking the proceeds and paying out to their order, the origin of check writing. scriveners drew up legal documents, arranged mortgages, handled property transactions, and put borrowers in touch with lenders. they and the goldsmiths and merchants developed promissory notes, checks, and private paper money. the influx of silver from the new world was a major factor in the second great inflation in england and in the devaluation of money to about one third of what it had been. also contributing to the inflation was an outracing of demand over supply, and a debasement of the coinage. this inflation benefited tenants to the detriment of their lords because their rents could not be adjusted upward. there was an increase in bankruptcies. houses of correction were built. as attorney general, edward coke was impassioned and melodramatic. he once described the parts of the penalty of treason as follows: being drawn to the place of execution reflected the person's not being worthy any more to tread upon the face of the earth; being drawn backward at a horse tail was due to his retrograde nature; being drawn head downward on the ground indicated that he was unfit to breathe the common air; being hanged by the neck between heaven and earth indicated that he was unworthy of either; being cut down alive and his privy parts cut off and burnt before his face indicated he was unworthily begotten and unfit to leave any generation after him; having his bowels and inners taken out and burnt indicated he had inwardly conceived and harbored such horrible treason; his head cut off, which had imagined the treason, and his body to be quartered and the quarters set up to the view and detestation of men a prey for the fowls of the air. coke was subsequently elevated to the position of chief of common pleas and then to chief of the king's bench. but there coke propounded a doctrine of the supremacy of the law over the king as well as over parliament. for instance, coke would not agree to stay any case in which the king had a concern in power or profit, to consult with him. but the other eleven justices did agree. since james i believed in the divine right of kings, he therefore dismissed coke from his position as chief justice of the king's bench. james even believed that he could suspend any law for reasons known only to him and issue proclamations that were not limited to the reinforcement of old laws, but made new offenses with punishment of fine and/or imprisonment. the old writ of habeas corpus [produce the body] had been just to bring to court those persons needed for proceedings, but coke in 1614 had cited the writ with a new meaning "to have the body together with the cause of detention". coke then became a member of parliament and led the commons, where he exalted the authority of parliament vis a vis the king; that is, the king could not make any changes in law, religion, or taxation without consent of parliament. james arrested coke and two other members of the commons and put its leader john pym under house arrest for their outspoken opinions against the king's intended alliance with catholic spain and intended taking of a spanish wife. because of the deadlock that developed between the king and parliament, certain matters could not be addressed by legislation and were left to be decided judicially. this made judicial review of disputes important. james vastly increased the number of peerages, selling many, for example for 10,000 pounds. since there was a tacit understanding that members of parliament would not accept remuneration, this restricted eligibility for membership to the rich. the house of commons was composed mostly of attorneys, merchants from the large towns, and country gentlemen. the gentry members had 600 pounds [12,000s] annual income from land and the burgess members had 300 pounds [6,000s.]. there were two knights from every county, elected by men holding at least forty-shilling freeholds; four representatives from london, and one or two from every other borough, generally elected by the top business familiesâ�; and a representative from each of the two universities. for speaker, they always chose someone suggested to them by the crown. he decided who would talk and could hasten or delay bills, usually for the benefit of the crown. the clerk, a lifetime appointment of the crown, wrote out the bills and their amendments and kept track of proceedings. many in the commons were puritan in sympathy. in 1607, the house of commons developed a committee system to avoid being presided over by the royally designated speaker. a committee could consist of all the members of the house of commons with an elected chairman. an increasing number of issues were discussed in committee before coming to the commons and the commons came to ratify readily what had been done in committee. by 1610, there had developed in the house of commons an opposition to feudal tenures, purveyance, wardships, and impositions (special import and export duties on aliens set by the king without the consent of parliament that were supposed to be for the purpose of regulating trade instead of for revenue). there was also a call for free speech and an end to the king's habit at the end of parliament of imprisoning for a time those who had been too outspoken. the commons also asserted itself into foreign affairs by expressing an opinion against a treaty proposed by the king on which war could ensue. the treaty was abandoned. in london, organized groups such as the apothecaries, the skinners, and the grocers, were circulating printed statements of their cases to members of committees of the house of commons rather than just seeking out a friendly privy council member. in 1621, the protests made to committeemen about monopolies sold by james frightened him into canceling many of them. he had made many grants against competition in violation of law. the right of the commons to expel a member was asserted by the expulsion of a monopolist. by 1629, the speeches of prominent members and the course of proceedings were copied by stationers and sold in a weekly news report. the king's privy council dealt constantly with foreign affairs, and also with the great companies, and problems arising such as gold leaving the country, the dutch ships increased efficiency in transporting goods, the declining market for english cloth, strikes in the mining industry, decaying harbor works, the quality of food and drink, the wrongs done to the poor, and above all, the general peace and order. they formed commissions to study situations and sent orders to justices of the peace on methods to address certain problems and to sheriffs to carry out certain acts. about 1618, a group within the privy council began to concentrate on foreign affairs, especially "cabinet counsels", that is, with secret matters. james sold high offices of state to supplement his income. his income from customs had increased so much that it was now three times that from crown lands. the sheriff looked after crown lands and revenues in his county. he gathered the rents, the annuities, the stray animals, the deodands, the fees due to the king, the goods of felons and traitors. he was still a means of communication between the privy council and the county. he announced new statutes of parliament and proclamations by the king at the county courts and in the markets. he used posse comitatus to disperse riots. he was the functionary of the assize court, impaneling its juries, bringing accused men before it, and carrying out its penalties. he carried out elections of members of the house of commons. there were two high constables for each hundred. they were chosen by the justices of the peace at quarter sessions, and were usually small gentry or well-to-do yeomen. they were the intermediaries between the justices and the petty constables. the petty constable was the executive official of the village. he was usually elected by the suitors to the leet court of the manor for a year. he might be a farmer, an artisan, a carpenter, a shoemaker, or many times a tradesman, a butcher, or baker. he often visited the alehouse to learn of any trouble in the making. he would intervene in quarrels and riots and tell the participants to desist in the king's name. if they didn't, he could call on all bystanders to help him "force a quiet". he had to lead the rioters and causers of injuries to others, hold them there until he could bring him before the nearest justice. he would inform the justice of plots to trespass or forcibly enter land to take possession. he saw to it that no new cottages were built in the villages without due authority. he supervised markets and inns. he reported lapses of care for apprentices by their masters to the justice. at harvest time, he called upon all able bodied persons to assist and punished those who didn't respond by putting them in the stocks or fining them forty shillings. he arrested and whipped vagrants and sturdy rogues and sent them back to their place of birth through constables on the way. if a horse was stolen, he raised the hue and cry to all neighboring constables. he made inquiry into the paternity of the coming child of an unmarried pregnant girl to make him take responsibility for the child and pay her 8d. a week lest it fall into the responsibility of the village. in a town, he might have watchmen to help him see that the streets were peaceful at night. the constable assisted the justice of the peace, the high constable, and the sheriff. he pressed men into military service. he collected taxes for the sheriff and collected the money for purveyance, the money for the poor, maimed soldiers, and various kinds of prisoners, which the parish had to pay. he was often the spokesman for the village in village concerns, such as too many alehouses, brought to the attention of justices at quarter sessions. the constable and churchwardens together collected money for the parish, looked after the needy, and kept in close touch with the overseers of the poor, who cared for the sick and old, found work for the idle, took charge of bastards, apprenticed orphan children, and provided supplies for the workhouse. in 1609 the east india company was given a monopoly by the crown that was indefinitely long as long as it was profitable to the realm in the king's opinion. interlopers were to forfeit their ships and goods, one-half to the company and one-half to the crown. monopoly status made the company competitive with the dutch and portuguese monopoly companies. the crown received a gift or a loan from the company in return. at first, the company raised capital for each separate voyage. but voyages tried to undercut each other and rival factions squabbled over cargoes. so the company then raised a "terminable joint-stock" for a period of years. the first of these was issued in 1613-16 and financed a fleet every year for four years. subscriptions were called in by yearly installments and dividends paid out yearly. the voyage of 1613 brought shareholders a profit equivalent to about 11% a year. by 1620, the company operated thirty to forty "tall ships", many built in its own dockyards. these dockyards were so technologically advanced that they were daily viewed by visitors and ambassadors. here, besides wet and dry docks, there were timber yards, a foundry and cordage works for supplying the ships' hardware and a bakery and saltings for their provisioning. more than 200 craftsmen were directly employed in the yard. overall the company was one of london' largest employers. in 1607, the muscovy company, hired henry hudson to find a northwest passage through north america to the pacific ocean. i n 1606, the first charter of the virginia company was issued for trading purposes. it gave the settlers "all liberties, franchises, and immunities" they had in england. to oversee this colony, the crown appointed a council. virginia established the episcopal church by law. virginia became a joint-stock company in 1609. but exports were few (timber, soap ashes, pitch, tar, and dyes) for several years, and then tobacco emerged as a source of profit. king james imposed a heavy duties on imported tobacco because it corrupted man's breath with a stinking smoke. life was difficult for puritan separatists, who wanted to separate from the established church. they were imprisoned and their houses were watched day and night for illegal meetings. in 1620, after trying holland and when there was a depression in england, a few puritan separatists, along with other pilgrims, left for virginia in the mayflower, but landed in new england and founded plymouth colony. they were led by william bradford and william brewster, their spiritual leader. they planted fields and made friends with the indians. in 1621, they secured a patent to the merchants and planters together for a voluntary joint-stock company in new england. later, it became the self-governing massachusetts bay colony. the canons of the church of 1604 provided for excommunication for anyone who propounded that the king did not have the same authority in ecclesiastical matters as the godly kings among the jews and christian emperors in the primitive church, that the church of england was not a true and apostolic church, that worship according the book of common prayer and administration of sacraments was corrupt or superstitious, or that other methods of the church were wicked, unchristian, or superstitious. church sanctuary was abolished for those accused of criminal offenses because it had been abused by thieves paying their rent by thieving at night. it remained available to those accused of civil offenses. about 5% of the population was catholic, although it was against the law to practice this religion. indeed it long been the practice to sequester their lands, punish them for going to mass, fine them for not attending the established church, banish their priests, and imprison those who aided priests. there was a catholic plot in 1605 to blow up parliament and the king with gunpowder and to restore catholicism as the state religion with a catholic king. it was discovered and the conspirators were executed. then there was a crackdown on catholics, with houses being searched for hiding places for priests. also, legislation was passed barring catholics from many offices. the law churchwardens of every parish shall oversee the poor in their parish. they shall, with consent of the justices of the peace, set to work children whose parents cannot maintain them and also set to work married or unmarried persons who have no trade and no means to maintain themselves. churchwardens shall tax every inhabitant, including parson and vicar and every occupier of land and houses, as they shall think fit. there will be a convenient stock of flax, hemp, wool, thread, iron and other necessary ware and stuff to set the poor on work. there will be competent sums of money for the relief of the lame, impotent, old, blind, and others not able to work, and also for the putting out of children to be apprentices. child apprentices may be bound until 21 years of age or until time of marriage. they shall account to the justices of the peace for all money received and paid. the penalty for absence or neglect is 20s. if any parish cannot raise sufficient funds, the justices of the peace may tax other nearby parishes to pay, and then the hundred, and then the county. grandparents, parents, and children of every poor, old, blind, lame, or impotent person not able to work, being of sufficient ability, shall at their own charge, relieve and maintain every such poor person in that manner and according to that rate as justices of the peace of that county determine, or else forfeit 20s. per month. two justices of the peace may commit to gaol or house of correction persons refusing to work and disobedient churchwardens and overseers. the overseers may, with the consent of the lord of the manor, build houses on common or waste land for the poor at the expense of the parish, in which they may place more than one family in each house. every parish shall pay weekly 2-10d. toward the relief of sick, hurt, and maimed soldiers and mariners. counties with more than fifty parishes need pay only 2-6d. the county treasurer shall keep registers and accounts. soldiers begging shall lose their pension and shall be adjudged common rogues or vagabonds subject to imprisonment and punishment. a seminal patent-protection law was passed in 1624. it stated that all monopolies to any person or persons, bodies politic or corporate for the sole buying, selling, making, working, or using of anything within the realm are void. this does not include london or towns. parties aggrieved by such may recover treble damages in the superior courts, with double costs. excepted are existing patents, for 21 years or less, for new inventions and for future patents for 14 years or less. excepted also are patents for printing or making saltpeter, gunpowder, shot or ordinance, etc.; patents concerning allum mines or newcastle coal or glass making or export of calves' skins or making smalts [deep-blue pigment or glass] or melting iron ore; grants of office; and licenses for taverns. persons stealing crops from lands or fruit from trees shall be whipped. every person shall receive the holy communion in church at least once a year or else forfeit 20 pounds for the first year and 40 pounds for the second year, and threescore pounds for every year after until he takes the said sacrament. every person convicted of drunkenness shall be penalized 5s. or else placed in the stocks for six hours, because the loathsome and odious sin of drunkenness has grown into common use lately and it is the root of many other sins, such as bloodshed, stabbings, murder, swearing, fornication, and adultery, and is detrimental to the arts and manual trades and diverse workmen, who become impoverished. offenders convicted a second time shall be bound with two sureties to the sum of 200s. lewd women, having bastards, chargeable to the parish, shall be committed to the house of correction to be punished and set to work for one year. mothers concealing the death of a bastard baby shall suffer as for murder, unless one witness proves the child was born dead. persons deserting their families shall be deemed incorrigible rogues and punished as such. persons such as sorters who purloin or embezzle wool or yarn delivered to them by clothiers and the receivers thereof, knowing the same, shall recompense the party grieved or else be whipped and set in the stocks. because benefit of clergy is not allowed to women convicted of felony by reason whereof many women suffer death for small causes, any woman convicted for the felonious taking of any money, goods or chattels greater than 12d. and less than 10s. other than burglary or robbery on the highway or from the person of any man or woman without their knowledge, shall be branded and marked in the hand upon the brawne of the left thumb with a "t" and imprisonment, whipping, stocking, or sending to the house of correction for a year or less. actors profaning god, jesus, or the holy ghost on stage are to be penalized 200s. in 1604 it was decided that it was not necessary to prove that witchcraft caused the death of a person for there to be punishment for the witchcraftery. all that was necessary now was the practice of witchcraft. the punishment was death by hanging. also, consulting or feeding an evil spirit was felony. sheriffs summoning defendants without a writ shall pay 200s. and damages to the defendant, and 400s. to the king. since administrators of goods of people dying intestate who fail to pay the creditors of the deceased often can't pay the debts from their own money, the people (who are not creditors) receiving the goods shall pay the creditors. no merchant may dress black rabbit skins, nor export them, unless dressed by skinners and bought from them because the skinners have been thus deprived of their livelihoods to their impoverishment throughout the realm. beer may be exported when malt is at 16s. per quarter because exporting beer instead of barley and malt will (1) increase the export tax to the king, (2) increase income for coopers and brewers, and (3) provide more jobs in transporting beer, which is more voluminous, to the great comfort of the port towns. fish which are spawning and growing in harbors may not be taken by any net or weirs because this practice has hurt fishermen and the realm. no one shall sell beer or ale to an unlicensed alehousekeeper because abuses there have become intolerable. no person at least 18 years of age may be naturalized or restored in blood after being attainted unless he takes the sacrament and the oath of supremacy [of the king over the church of england], and oath of allegiance [to the king]. money given by will for the apprenticeship of poor children shall be managed by incorporated towns and unincorporated parishes. masters receiving such apprentices shall become bound with sufficient sureties. houses of correction shall be built in every county. london may make a trench to bring water to the north part of the city and shall compensate the owners of lands by agreement with them of an amount or an amount determined by commissioners. all hospitals and abiding places for the poor, lame, maimed, and impotent persons or for houses of correction founded according to the statute of elizabeth shall be incorporated and have perpetual succession. only lands and hereditaments paying rents to the crown within the last sixty years shall be claimed by the crown; the title of all persons and corporation who have enjoyed uninterruptedly against the crown for the last sixty years are confirmed against the crown. no one may take more than 8% interest on loans because 10% has caused many, including gentry, merchant, farmer, and tradesman, to sell their land and forsake their trade to pay their debts. as attorney general, edward coke introduced the crime of "seditious libel" in a case before the star chamber in 1606. these written slanders or libels were viewed as incitements to disorder and private vengeance. because the tendency to cause quarrels was the essence of the crime, the truth of the libel was not a defense, but might be an aggravation of criminality. edward coke, former chief justice of both the court of common pleas and court of the queen's bench, wrote his reports on court cases of all kinds through forty years and his institutes on the law, in which he explained and systematized the common law and which was suitable for students. this included a commentary and update of littleton, published in 1627; old and current statutes; a description of the criminal law; and lastly an explanation of the court system, the last two published in 1644. coke declared that "a man's house is his castle". coke waged a long battle with his wife over her extensive property and the selection of a husband for their daughter. in his institutes, he described the doctrine of coverture as "with respect to such part of the wife's personality as is not in her possession, as money owing or bequeathed to her, or accrued to her in case of intestacy, or contingent interests, these are a qualified gift by law to the husband, on condition that he reduce them into possession during the coverture, for if he happen to die, in the lifetime of his wife, without reducing such property into possession, she and not his representative will be entitled to it. his disposing of it to another is the same as reducing it into his own possession." he further states that "the interest of the husband in, and his authority over, the personal estate of the wife, is, however, considerably modified by equity, in some particular circumstances. a settlement made upon the wife in contemplation of marriage, and in consideration of her fortune, will entitle the representatives of the husband, though he die before his wife, to the whole of her goods and chattels, whether reduced into possession or not during the coverture. ... a settlement made after marriage will entitle the representative of the husband to such an estate in preference to the wife. ... a court of equity will not interfere with the husband's right to receive the income during the coverture, though the wife resist the application." no person convicted of catholicism may practice the common law as a counsellor, clerk, attorney, or solicitor, nor may practice civil law as advocate, or proctor, nor shall be justice, minister, clerk, or steward in any court, nor practice medicine, nor perform as apothecary, nor be officer in a town, in the army, or navy, or forfeit 100 pounds as punishment. nor may they be administrators of estates, or have custody of any child as guardian. nor may they possess any armor, gunpowder, or arms. nor may anyone print or import popish books rosaries, or else forfeit 40s papists running a school must forfeit 40s. a day for such. anyone conveying a child beyond the seas to be educated in popery may not sue in the courts, may not hold any office, and shall forfeit 100 pounds and all lands. but the child returning may have his family lands restored to him if he receives the sacrament of the lord's supper in the established church after reaching 18 years of age. judicial procedure defendants may not petition to remove a case to the westminster courts after a jury is selected because such has resulted in unnecessary expense to plaintiffs and delay for defendants in which they suborn perjury by obtaining witnesses to perjure themselves. in 1619, by the writ of quo warranto, a government office or official could be made to explain by what right he performed certain acts. james i asserted an authority to determine the jurisdiction between the various courts. the court of high commission heard mostly matrimonial cases, but also moral offenses both of clergy and laity, and simony [buying or selling ecclesiastical preferment, eclectically pardons, or other things regarded as sacred or spirtual], plurality, drunkenness, and other clerical irregularities. the star chamber court still was primarily directed against force and fraud and defended the common people from over-mighty lords and over-pliable justices of the peace, for instance by deterring enclosure. it also enforced monopolies. however, there was a growing tendency for king james, who sat on it, to abuse its power with high fines. for instance, a lord accused with foul language by a huntsman of following hounds of a chase too closely threatened to use his horse whip on the huntsman's master when the huntsman threatened to complain to his master. the lord was fined 10,000 pounds. james' council used torture to obtain information from accused felons about possible conspiracies against him. the ordinary administrative court of first instance is formed by the single justices of the peace, who issue orders regarding public safety, order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, and fire, and particularly begging and vagrancy as well as regulations of wages, servants, apprentices, and day laborers. for more important resolutions, the special sessions of the justices of the peace of a hundred for a court of intermediate instance and appointed overseers of the poor. all justices of the peace were present at the quarter sessions, which were held at least four times a year, and were primarily a court of appeal from penal sentences, but also make the county rate, appoint county treasurers and county prison and house of correction governors, regulate prices and wages, settle fees of county officials, grant licenses for powder mills, and register dissenting chapels. it heard appeals expressly allowed by statute. the central courts also heard appeals by writ of certiorari as to whether an administrative act was in accordance with existing law, whether the court is competent, and whether the administrative law has been rightly interpreted. this writ of certiorari ceased in the 1700s. justices of the peace who have the power to give restitution of possession to tenants of any freehold estate of their lands or tenements which have been forcibly entered and withheld, shall have like power for tenants for term of years, tenants by copy of court roll, guardians by knight service, and tenants by elegit statute merchant and staple of lands or tenements [tenant-plaintiffs holding property to receive income therefrom for satisfaction of a debt of defendants]. the justices of the peace were chosen by the crown, usually by the chancellor. the qualifications were residence in the county, suitability of moral character, religious uniformity, and the possession of lands or tenements with twenty pounds a year. they were almost exclusively country gentlemen, except in the towns. in the corporate towns, the mayor, bailiff, recorder, and senior aldermen were ex officio [by virtue of the office] justices of the peace. their main duty was to keep the peace. if a justice heard of a riot in the making, he could compel individuals at the place to give bonds of â�good-a-bearingâ� and cause a proclamation to be made in the king's name for them to disperse. two justices or more had the authority to arrest the rioters and send a record of it to the assizes and to the privy council. if the riot had taken place before their arrival, they could make an inquiry by a jury and certify the results to the king and his council. the justices had men brought before them on many kinds of charges, on their own summons, or on initiative of the petty constable. they tried to draw these men into confession by questioning. after indictment, a person had the choice of a petty jury trial or paying a fine. the justices of the peace could insist upon presentment juries or surveys of offenses by local officers, but, without the institution of policemen, not many crimes were prosecuted because victims were unwilling or could not afford to initiate judicial action. their unwillingness was partly due to the severity of penalties, e.g. death for the theft of over 12s. and whippings and fines for misdemeanors. further, the offender was frequently a neighbor with whom one would have to live. mediation by the local constable often took place. when there an outbreak of lawlessness in an area, a commission might be set up especially for that area to enforce the law. assault cases were common in courts of assize and courts of quarter sessions. the quarter sessions were those of a number of justices of the peace held for a couple of days four times a year for the more important cases in the jurisdiction of the justices of the peace. assault was violence or threat of imminent violence. fines were graduated according to the means of the offender, who was usually bound over to keep the peace. most involved offenders and victims who were neighbors and included people of substantial standing in the village. also, a sizable minority were directed against local officers such as constables, bailiffs, or taxcollectors. three-fourths of all assize indictments and many quarter-sessions indictments were for various types of theft, including petty larceny, grand larceny, housebreaking, burglary, sheep stealing, and robbery. these offenses were mostly opportunistic rather than planned, except for london's underworld of professional thieves and the cutpurses of country markets and highway robbers on lonely roads. there were substantial peaks in theft in periods of harvest failure and industrial depression, especially by vagrants. but most of the poor never stole. the justices of the peace usually deferred to the learned justices of assize for cases of felony, murder, rape, highway robbery, and witchcraft. most homicides were the result of an impassioned argument leading to blows inflicted by nearby commonplace items picked up and used as weapons. only 18% of homicides were within the family. men were still declared outlaw if they failed to come to court after repeated summons. the lord keeper regularly advised the assize justices, before each circuit departure, to relieve the poor, supply the markets, maintain the roads (which were frequently impassable in winter for wagons or coaches), enforce church attendance, suppress superfluous and disorderly alehouses, and put down riots, robberies, and vagrancy, and in times of dearth, to suppress speculation in foodstuffs, prevent famine, and preserve order. in fact, the justices were most attentive to offenses which affected them as rate payers for the poor. these were offenses against cottaging laws (e.g. erection of cottages which lacked the statutory four acres of land), harboring of "inmates", disputes of settlement of paupers, bastardy, vagrancy, church nonattendance, and above all, disorderly alehouses. alehousing had been a wellestablished means of poor employment since the 1200s, so it was hard to enforce licensing laws. further, alehouses were the centers of social life for the common people; both women and men met their friends there. if an attorney or solicitor delays his client's suits to work his own gain or over charges his client, the client can recover his costs and treble damages and the attorney and solicitor shall be disbarred. none may be admitted to any court of the king but such as have been brought up in the same court or is otherwise well-practiced in soliciting of causes and has been found by their dealings to be skillful and honest. an attorney who allows another to use his name shall forfeit 400 shillings and be disbarred. offenders shall pay the charge of their own conveyance to gaol or the sum shall be levied by sale of their goods so that the king's subjects will no longer be burdened thereby. plaintiffs' costs shall be paid by the defendants only where there is a judgment against the defendant in all actions in which the plaintiff is entitled to costs on judgment for him, to discourage frivolous and unjust suits. by 1616, chancery could order injunctions to stop activities. in slade's case of 1602, the court of the queen's bench held that assumpsit may be brought in place of the action of debt. so assumpsit supplants debt for recovering liquidated sums and is then called "indebitatus assumpsit". the trial of sir walter ralegh in 1603 began a call by people for a right to confront and question one's accusers. before trial, privy counselors who in theory sat as impartial justices, cross-examined ralegh in prison. with a carefully selected jury present, the trial began with reading of the indictment, which ralegh had not yet seen. he was charged with treason in plotting with catholic spain to put arabella stuart on the throne. arabella was to write to spain promising peace, toleration of catholics in england, and direction by spain in her marriage choice. he pled not guilty and took no exception to any jurors, stating that he knew them all to be honest men. next, attorney general edward coke, his enemy and rival, and he engaged in a debate about who was right, with coke outright bullying him. coke then produced a signed confession by lord cobham that implicated him in the alleged conspiracy and accepting 10,000 crowns for his part. ralegh was given permission to speak. he said that cobham had retracted his confession. he ridiculed the idea that he would betray england to spain for gold after fighting against spain, including risking his life three times, and spending 4,000 pounds for the defeat of spain. he pointed to a treatise he had written to the king on the present state of spain and reasons against peace. then there was a discussion on the validity of cobham's confession. cecil gave an oration of ralegh. coke gave a speech. ralegh asked to have his accuser brought before him face to face. he cited law that two witnesses were necessary for a conviction for treason. chief justice popham replied that only one witness was necessary under common law, which applied to his case, and that the trial was properly conducted by examination of the defendant. coke added that it would be improper to call cobham because he was a party. then coke surprised ralegh with a letter from cobham stating that ralegh had asked cobham to procure him an annual pension of 1500 pounds from spain for disclosing intelligence. ralegh acknowledged that a pension was offered, but denied that he had ever intended to accept it. he admitted that it was a fault not to inform authorities of this offer. the jury deliberated for fifteen minutes and returned with a verdict of guilty. the chief justice delivered the sentence for treason: drawing, hanging, disemboweling, beheading, and quartering. the whole trial was not so much to access guilt, but to show the general public that the person was guilty. church courts were revived after a period of disuse. they could annul an unconsummated or legally invalid marriage (e.g. consanguinity, impotence, a witnessed precontract to marry) and order judicial separations in case of adultery, cruelty, or apostasy. annuled marriages made a person's children illegitimate. an action at common law for "criminal conversation" [adultery] with the plaintiff's spouse or for assault and battery could result in an order for separation. but only a private statute of parliament could grant a divorce, which allowed remarriage. it was granted in only a few cases and only to the very wealthy. church officials spied upon people's conduct to draw them into their courts and gain more money from the profits of justice. in 1610, edward coke, chief justice of the court of common pleas, decided that the statute giving the royal college of physicians power to imprison and fine those practicing without a license was invalid and unenforceable because it gave the college half of each fine awarded, which was a conflict of interest with its role as an adjudicator. coke said that a maxim of the common law was that no man ought to be judge in his own cause. by this decision, he asserted a court supremacy over parliament with respect to the validity of statutes. he opined that the courts should not only be independent of the crown, but should act as arbiter of the constitution to decide all disputed questions. in his words, "when an act of parliament is against common right and reason, the common law will control it and adjudge such act to be void." justices still explained and in some degree interpreted legislative acts of parliament as they had since the 1500s, but their right to do so was coming into question and was slowly lost. female scolds were still dunked into water as punishment. only barristers, who were called to the bar after being in long residence in one of the inns of court, could practice before the king's court. attorneys and solicitors prepared cases for barristers and practiced before minor courts. the king appointed the justices, with the advice of the chancellor. james i often intimidated the justices to see things his way. the oath of a justice was: "well and truly ye shall serve the king and his people. and ye shall take no fee or livery of none but the king, nor gift or reward of none that hath a do before you except it shall be meat or drink of small value, as long as the plea hangs before you. and ye shall do equal law and execution of right to all the king's subjects rich and poor, without regard to any person. ye shall counsel our sovereign lord the king in his need. and ye shall not delay any person of common right for the letters of the king or of any person or for any other cause ... so help you god." the courts of king's bench and common pleas, and the chancery all met simultaneously in westminster hall. throngs passed up and down the middle aisles between the courts, including booksellers, stationers, scriveners, and vendors of bread and hot meat. the hall was so cold that people kept on their coats and hats. the last court case concerning villeinage was in 1618. chapter 15 the times: 1625-1642 the entourage of charles i came to be called "cavaliers". they were named by their opponents for the spanish caballero who was a catholic who prosecuted protestants. their hair had long, curled, and flowing locks. they wore a broad-rimmed decorated hat. their fancy jackets and breeches were loose. boots were wide and folded over at the top. young men wore earrings and painted their faces. a lady wore her hair in ringlets on each side of her face. her dress was fitted at the waist, with a peaked bodice. it was low at the shoulders with a scoop neckline in front. she often wore much lace, especially at the neck down to the bust line. her outer dress and under-skirt that was revealed in front, were full and made of satin and stiff silk or velvet. only hose of silk were worn at court. a majority of prosperous industrial towns and fee farmers, led sometimes by lords or old landed gentry, were puritans. they dressed plainly and in somber colors such as black, grey, and buff, with no ornamentation except plain white collars and cuffs of linen rather than of lace. wool replaced silk and velvet. no jewelry was worn. the puritan women also wore long white aprons. the puritan women smoothed their hair back into little knobs and covered their hair and head with a white covering. both puritan men and women wore broad-rimed hats and plain shoes. the ordinary country man wore a felt hat, broadcloth coat, woolen trousers, hand-knitted worsted stockings, and plain, strong shoes. the puritan men for a time had short-cut hair. the puritanparliamentarians were given the name "roundheads" after the cropheaded london apprentices whose rioting had marked every stage of the conflict between king and parliament. religion was a favorite and serious topic of discussion, even among the illiterate. nine-tenths of the people were protestant. on the whole, they were more inclined to salvation by grace than to salvation by good works. popular reading included guides for good manners such as "the rich cabinet" by thomas gainsford, and "youths behavior" translated from the french by francis hawkins. it advised not to sit with one leg on the other, but with the feet even; not to spit on one's fingers; and not to sniffle in the sight of others. books for ladies such as "delights for ladies" by hugh platt told them how to adorn themselves, tables, closets, and rooms with beautiful objects, perfumes, and waters. it taught preserving and the making of candy preserved by sugar, cooking, and housewifery. gervase markham wrote advice for men in "hobsons horse-load of letters", which addressed serious negotiations, private businesses, amorous accomplishment, wanton merriment, and the defense of honor and reputation. "a helpe to discourse" primed a man to meet company with suggested questions and answers, epigrams, riddles, and jests. in henry peacham's "the compleat gentleman" (1622), the model cavalier is portrayed in terms of horsemanship, tilting, sports, choice of companions, reserved and dignified conduct, good scholarship, and responsibility. this popular book was a guide to university, where there was a seven year course of classroom lectures. it advised conversation with men of the soundest reputation for religion, life, and learning, but recreation with those of the same rank and quality. first place was to be given to religion, so that the foundation of all studies would be the service of god. following in importance were: speaking and writing in english or latin (grammar, syntax, and rhetoric), astronomy, astrology, geography (whose authorities were pliny, strabo, and the pagan writers of the first century), chorography [map-making], mathematics (including arithmetic and geometry), poetry, (reading, writing, and criticizing), music (including part-music), drawing, limning [putting drawings in books], painting, art history, exercise (riding, running, leaping, tilting, throwing, wrestling, swimming, shooting, and falconry), logic and disputation (if related to one's intended profession such as the law), philosophy (plato and aristotle), and some medicine and botany. richard brathwaite's "the english gentleman" portrays the somber puritan who accepts the gospel of work. he is a staid and serious businessman. "matrimonial honour" by daniel rogers opined that for success, a marriage must be godly, with the parties equally religious, worshipping together in private and in public. a hasty or worldly marriage would bring repentance. the spouses should agree, but keep to their spheres. children should not be spoiled. large households were more or less self-supporting and were managed by their ladies. work included ordering wool, hemp, and flax; making cloth and dying it; dairy work; brewing; malting; baking; preserving wines; extracting oils; distilling perfume; and putting on banquets. couches were coming into use in parlors. the king and his court entourage settled for most of the year in whitehall instead of traveling around the country. the king let the public into hyde park, the kingâ�s private hunting park, for recreation. the city of london and westminster were still separate, but a mass of hovels was springing up in between them. in certain areas there were houses crowded with those wanted for minor offenses, small thefts, and debt. bailiffs did not dare venture into these areas because the inhabitants hid and defended each other unless the offense was a major one. the penalty for stealing even small sums was still death. the water carrier was still active and the night transport of sewage necessary. inigo jones was the first architect of consequence. he had studied in italy and designed and built the banqueting house at whitehall, near westminster, in london in 1622. it had classical proportions and nice shaping and dressing in stone. he was now an arbiter of taste for the king charles and his queen and built many structures for them, including the queen's chapel at st. james palace and her bedroom in the queen's hose in greenwich. all over london and the country he and his pupils built many classical buildings, including houses, churches, stables, lodgings, out-buildings, staircases, galleries, watergates, and archways. they stood in stark contrast to the tudor buildings around them. in the 1632, jones started town planning in london with covent garden fruit and vegetable market and terraced houses around a central piazza surrounded by open arcades with a tuscan church at one end. in 1634, a man from the suburb of hackney introduced a line of coaches rented at 1s. per hour. they soon became very popular. the flemish johann baptista van helmont demonstrated that metals dissolved in acid can be recovered through chemical means and enunciated the doctrine that each thing in nature has its own specific organization. a large part of england was rebuilt as yeomen expanded their houses and others lower in rank replaced mud and wood hovels with brick and stone cottages. a separate kitchen appeared. the ground floors are boarded over to create bedrooms. permanent stairs replace ladders. glass appears in windows. glass and crockery replace wood and pewter, chairs replace benches. knives and forks become common. about 1640 began travel between towns by covered wagons called stage coaches. they carried passengers and goods and stopped at inns for stabling and repairs. work was begun in 1630 to make canals that would make marsh waters run to the sea. barges on canals were the most efficient mode of transportation. a barge could carry 50 tons on a canal and only 30 tons on a river. a single horse could haul an 8-ton wagon on iron rails or on a soft road, but only 1/8 of a ton on his back. a new trend of spring-sown crops led to better crop balance and reduced the risks of scarcity in a bad year. but the economy was still volatile. there were riots in london in 1640-1 from a complete breakdown in political consensus, the factions being the royalist city elite versus the middling and lesser merchants and craftsmen. in 1631, the clock makers broke away from the control of the blacksmiths. the gunmakers also broke away from the blacksmiths. the tinplate workers broke away from the ironmongers. "searching" for bad cloth became more difficult as the industry became more diversified. for instance, a new machine called a gigmill did the work of many hand finishers. in 1633, charles issued a commission for the reformation of the cloth industry with minute directions for the manufacture of cloth. but there were many disagreements over the details of manufacture and reform was difficult to enforce. by the 1630s, many parishes had a resident intellectual for the first time. the parish priests came from gentry, upper yeomanry, urban tradesmen and clerical families. they were educated and highly learned. they had libraries and were in touch with contemporary religious debates. they saw their role primarily as pastoral care. many wanted to improve the religious knowledge and moral conduct of their parishioners. puritan influence deepened as they forbade dancing, games, minstrels, and festivals. they punished superstitious conduct. they initiated prosecutions in church courts for sexual lapses and drunkenness. the church court had little coercive power and its punishments were restricted to penance or excommunication. many puritan sects espoused equality for women. by the 1640s women were preachers, e.g. in the baptist and anabaptist religions and, until 1660, prophetesses. these sects were mostly composed of the lower echelons of society. poor people did not respond to sermons as did the well-to-do. nor were they as involved in church activity, attending church only for marriages, baptisms, and funerals. charles i not only believed in the divine right of kings and was authoritarian; he was the ultimate autocrat. he had an unalterable conviction that he was superior to other men, who were insignificant and privileged to revolve around him. he issued directives to reverse jury verdicts. parliamentarians oliver cromwell and other educated men opposed this view. the commons voted not to grant charles the usual custom-dues for life, making it instead renewable each year, conditioned on the king's behavior. charles dissolved parliament before this passed. he continued to take tonnage and poundage. charles wanted money for war so he imposed many taxes, but without the consent of parliament. they included many of which had fallen into disuse. he imposed a compulsory "loan" on private individuals, which the courts held was illegal, and imprisoned those who refused. bail was denied to these men. simpler people who refused were threatened with impressment into the navy, which included being landed on shore to fight as marines and soldiers. they sought to revive the old writ of habeas corpus to get released, but to no avail. charles billeted unpaid and unruly soldiers in private homes, which they plundered. it was customary to quarter them in inns and public houses at royal expense. martial law was declared and soldiers were executed. but the citizens did not want martial law either. the magna carta was now seen as a protector of basic liberties, instead of a restoration of certain past rights.. both attorneys and laymen read "the pastyme of people" written by john rastell in 1529, which described the history of the magna carta from 1215 to 1225. also read was the "great abridgment" of the english law written by rastell in 1527, and coke's volume of his institutes which dealt with the magna carta, which the crown took to prevent being published until 1642, when parliament allowed it. broad-scale pamphleteering turned england into a school of political discussion. oxford university favored the established church and cambridge university was puritan. the house of commons asserted a preeminence to the house of lords for the following reasons: the estates of the members of the house of commons were three times the extent of the members' of the house of lords. bishops' estates had diminished considerably because of secularization. the members of the house of commons were elected [chosen] by the people. the house of commons drew up a petition of right in 1627, which expanded upon the principles of magna carta and sought to fix definite bounds between royal power and the power of the law. it protested the loans compelled under pain of imprisonment and stated that no tax or the like should be exacted without the common consent of parliament. it quoted previous law that "...no freeman may be taken or imprisoned, or be disseised of his freeholds or liberties, or his free customs, or be outlawed or exiled; or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land" and that "...no man of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned nor disinherited, nor put to death without being brought to answer by due process of law". it continued that "... divers of your subjects have of late been imprisoned without any cause showed; and when for their deliverance they were brought before your justices by your majesty's writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your majesty's special command, signified by the lords of your privy council, and yet were returned back to several prisons, without being charged with anything to which they might make answer according to the law." it also protested the billeting of soldiers in private houses and martial law trying soldiers and sailors. if these terms were agreed to by the king, he was to be given a good sum of money. since he needed the money, he yielded. he expected tonnage and poundage for the navy for life, as was the custom. but he got it only for one year, to be renewable yearly. the king agreed to the petition, quietly putting his narrow interpretation on it, and it was put into the statute book. in 1629 parliament distinguished between treason to the king and treason to the commonwealth. the chief justice held in 1638 that acts of parliament to take away the king's royal power in the defense of his kingdom were void; the king may command his subjects, their persons, their goods, and their money and acts of parliament make no difference. but the people refused to pay these taxes. charles thought of more ways to obtain money and disregarded his agreement to the petition of right. without the consent of parliament, charles extended ship money to all the kingdom instead of just the ports. it was used to outfit ships for the protection of the coasts. hampden refused to pay it on principle and the courts ruled against him in the case of king v. john hampden and he was sent to prison. when distraints were tried, the common people used violence to prevent them. the bailiffs were pelted with rocks when they came to distrain property. one man used his pitchfork to take back his steer being taken by the bailiff. if a distraint was successful, people would refuse to buy the distrained property of their neighbors. charles revived the right of the crown to force knighthood on the landed gentry for a fee. charles sold monopolies in such goods as soap, leather, salt, wine, coal, and linen rags although they had been abolished in the last parliament of james. this made employment uncertain for workers and prices high for the public, and put masters in danger of loss of capital. fines were levied on people for the redress of defects in their title deeds. crown forest boundaries were arbitrarily extended and landowners near crown forests were heavily fined for their encroachments on them. money was extorted from london by an illegal proclamation by which every house had to pay three years' rental to the crown to save itself from demolition. but what incensed the people more than the money issue were the changes in the established church. high churchmen, called ritualists, enforced ceremonies offensive to puritan feeling in every parish. the centrally placed communion tables were to be placed at the east end within railings and called "altars", or "mercy seats" as if for mass. they were to be ornamented with crucifixes, images, pretty trifles, books, candles and rich tapestries. bowing was to be done when approaching them. clergymen were to be called "priests" and their authority treated as divine. worship was to be done in accordance with the prescribed forms of romish breviars, rituals, and mass-books. its ritual was to have pomp and ceremony, including kneeling for communion. rings were to be used in marriages and crosses used in baptisms. churches, fonts, tables, pulpits, chalices and the like were to be consecrated, thereby putting holiness in them. churches that did not do this but used unconsecrated or "polluted" articles were closed by interdiction [a catholic censure withdrawing most sacraments and christian burial]. days, postures, meats, and vestments were to be regarded. the clergy was to wear supplices [white linen vestments flowing to the foot with lawn sleeves] and embroidered copes [vestment over the head]. a bishop wore a four-cornered cap, cope and surplice with lawn-sleeves, tippet (long, black scarf), hood, and canonical coat. churchwardens were to take oaths to inform against any who disobeyed. the law still required that all attend sunday sermons. but parishes had some control over who was their preacher, even though a minister could be assigned to a parish by the bishops without the consent of the patron of the church or parish people. by increasing the meager pay of a parish clergyman, they could choose one with a compatible theology or employ a lecturer from outside. the ritualists scolded clergymen for "gospel preaching" and suppressed puritan preaching in public meetings. preaching or printing matter concerning the controversy of free will versus predestination was forbidden. geneva bibles, which were popular among laymen, were prohibited from being imported. many were excommunicated for sitting instead of kneeling at communion. the clergy prohibited marriage if they liked by withholding their license, and they licensed marriages without banns. the ritualists encouraged certain sports to be played after church on sunday. the puritans protested vehemently to this because they wanted to strictly observe the sabbath. the puritans saw the high churchmen as wanting to return to the doctrine and customs they thought to be papist. the ritualists were absolutists in their political views and accepted the king's intervention in church matters. the ecclesiastical court of high commission enforced the edicts of the church, excommunicating those who did not conform and expelling clergymen who, for instance, did not bow at the name of jesus or wear the surplice. it was used against the puritans and imposed high fines and imprisonment for religious eccentricity and puritan preaching. charles supported the established church in this endeavor because it agreed that he had a divine right to rule. the universities and high churchmen were beginning to adopt the doctrine of free will over predestination. parliamentarian and puritan oliver cromwell and others feared this presaged a return to justification by works and the popish faith. in parliament, he spoke out against the tyranny of the bishops, whose offices he wanted abolished, and the elaborateness of church services. to avoid persecution, many puritans emigrated to virginia and new england. they were led by magistrates, country gentlemen, prominent businessmen, attorneys, and other professionals. in 1629, the massachusetts bay colony was chartered at the instigation of john winthrop as a puritan refuge. its leaders led a migration of puritans organized to include five each of armorers, bakers, blacksmiths, carpenters, shoemakers, merchants; three each of clothiers, chandlers, coopers, military officers, physicians, and tailors; two each of fishermen, herdsmen, and masons; on tanner, and one weaver. the fare was five pounds and an applicant was interviewed to make sure he was a puritan. he got 50 acres, or more for a larger family. but if he paid 50 pounds into the common stock he received 200 acres of land, plus 50 more for each dependent. maryland was founded in 1632 as a haven for catholics, but its charter precluded a government-established religion. it was granted to lord baltimore to hold in free socage and was named after charlesâ� wife, who was catholic. catholics in england could practice their religion only in their homes and could not carry arms. as hostility grew, censorship of books and plays accelerated and the number of authorized printers was reduced in 1637 by decree of the star chamber. in 1640s effective government control of the press collapsed. then there were many pamphlets and newspapers with all variety of interpretation of the bible and all sorts of political opinion, such as on taxation; law and the liberties of the subject; religion; land and trade; and authority and property. twenty-two pamphlets were published in 1640 and 1,996 in 1642. in 1640 the canons of the church included a requirement for parsons to exclaim divine right of kings every year. the commons soon resolved that this was contrary to the fundamental laws and liberties of the realm. the short parliament of 1640 was dissolved soon because the commons demanded redress of its grievances. the long parliament of 1640-1653 requested by the house of lords was agreed to by charles because he still wanted money. in election of members to the long parliament, voters wanted to know where contenders stood on certain political issues. in this parliament, the commons ceased to agree on all issues and started to rely on majority rule. the house of commons was led by john pym, a middle class landholder with extensive commercial interests. the commons treated the king's refusal to act with them as a relinquishment of his power to parliament. when it met at the long parliament, pym expressed the grievances of the king's actions against the privileges of parliament, against religion, and against the liberties of the subjects. specifically, he decried the disregard of free speech and of freedom from prosecution afterward, and the arbitrary dissolution of parliament. secondly, he alleged popery had been encouraged and the ecclesiastical jurisdiction enlarged. thirdly, he protested the patent monopolies given to favorites to the detriment of the buying public, the imposition of ship money levies beyond the need of national defense and without the consent of parliament, the revival of the feudal practice of imposing a fine for refusal to accept a knighthood with its attendant obligations, the enlargement of the king's forests and driving out from hence tenants with lucrative holdings, extra judicial declarations of justices without hearing of counsel or argument in many criminal matters, and the abuses of the prerogative courts in defending monopolies. parliament's assertion into religious matters and foreign affairs was unprecedented, those areas having been exclusively in the power of the king. the long parliament begun in 1640 removed many of the king's ministers and forbade clergy from sitting in parliament or exercising any temporal authority. it passed measures which were not agreed to by the king. it undid the lawless acts of the king and the court decision in the case of king v. hampden. ship money was declared illegal. the new concept that the present parliament should not be dissolved but by its own consent was adopted. the star chamber and court of high commission were abolished. the oath ex officio, an oath to answer all questions, was originally meant for facts at issue, but had been extended by these courts to opinions, beliefs, and religion and had led to abuses. the star chamber had been the only court which punished infractions of the kings' edicts, so now his proclamations were unenforceable. protection against self-incrimination was given by the provision that no person be forced "to confess or accuse him or herself of crime, offense, delinquency, or misdemeanor, or any neglect... or thing whereby, or by reason whereof, he or she shall or may be liable or exposed to any censure, pain, penalty, or punishment whatsoever, as had been the practice in the star chamber and the court of high commission. these measures were also adopted: no one may be compelled to take knighthood nor undergo any fine for not so doing. the forest boundaries are returned to their former place. all subjects may now import gunpowder; they may also make and sell gunpowder and import saltpeter. the root and branch petition of 1640 to abolish episcopacy roots and branches complained about pressure on ministers by bishops on threat of dismissal not to preach about predestination, free grace, perseverance, original sin remaining after baptism, the sabbath, doctrine against universal grace, election for faith foreseen, free-will against anti-christ, nonresidents, nor human inventions in god's worship. it also complained about the great increase of idle, lewd, and dissolute, ignorant and erroneous men in the ministry who wanted only to wear a canonical coat, a surplice, and a hood, bow at the name of jesus, and be zealous of superstitious ceremonies. it also complained about the swarming of lascivious, idle, and unprofitable books, pamphlets, play-books, and ballads, such as ovid's "fits of love", "the parliament of women", barn's "poems", and parker's "ballads". further it opposed the restraint of reprinting books formerly licensed without relicensing. it protested the growth of popery and increase of priests and jesuits, the strict observance of saints' days whereby large fines were imposed on people working on them, the increase of whoredoms and adulteries because of the bishops' corrupt administration of justice and taking of bribes, and the practice of excommunicating for trivial matters such as working on a holy day or not paying a fee. it further protested the fining and imprisoning of many people; breaking up men's houses and studies; taking away men's books, letters, and writings; seizing upon their estates; removing them from their callings; and separating them from their wives, to the utter infringement of the laws and of people's liberties. it complained that these practices caused many clothiers, merchants, and others to flee to holland, thus undermining the wool industry. it finally complained of the multitude of monopolies and patents, large increase of customs, and ship-money. many londoners signed this petition. the house of commons decided to forbid bowing at the name of jesus. when the house of lords disagreed with this, the house of commons claimed that it represented all the people and didn't need the concurrence of the house of lords. the house of commons ordered that all communion tables be removed from the east end of churches, that the railings be taken away, and all candles and basins be removed from it. further, all crucifixes, images of the virgin mary, and pictures of any of the trinity were to be demolished, including those in markets and streets. further, all bowing at the name of jesus or toward the east end of the church or toward the communion table was forbidden. all dancing or other sports on sunday was forbidden. enforcement was to be done by justices of the peace and mayors. but these orders never became statutes. enforcement of the law for not coming to church was not now regularly enforced, so catholics had a respite. rebellion of irish catholics against england and english protestants broke out in ireland in 1641. parliament didn't trust the king with an army that he could use against themselves so it passed the following two measures expanding the navy and calling out the militia and naming certain persons to be lieutenants of each county. the admiral shall impress as many seamen as necessary for the defense of the realm. this includes mariners, sailors, watermen, ship carpenters, but no one over the age of 50 or masters or masters' mates. if one hides, he shall be imprisoned for three months without bail. justices of the peace shall impress as many soldiers as the king may order for war in ireland. this is despite the right of a citizen to be free from being compelled to go out of his county to be a soldier because the danger from ireland is imminent. excluded are clergymen, scholars, students, those rated at a subsidy of land of three pounds or goods of five pounds, esquires or above, the sons of such or their widows, those under eighteen or over sixty years of age, mariners, seamen, and fishermen. the penalty for disobeying is imprisonment, without bail or misprise, and a fine of ten pounds. if an offender can't pay the fine, he shall be imprisoned a year more, without bail or misprise. the right to call out the county militia had been a prerogative of the crown, so the king issued a proclamation ordering the soldiers to ignore this order and obey him. so parliament declared this proclamation void. the king accused five leaders of parliament, including pym, of trying to subvert the government of the kingdom, to deprive the king of his regal power, to alienate the affections of the people toward their king, forcing the parliament to their ends by foul aspersions, and inviting the scots to invade england. in 1642, the king entered parliament with 300 soldiers to arrest these five. they had flown, but parliament was shocked that the king had threatened the liberties of parliament with military force. the citizens of london, in their fear of popery, rose in arms against the king, who left the city. both sides raised big armies. the goal of the parliamentarians was to capture the king alive and force him to concessions. when the parliamentarians took oxford in 1648, they purged its faculty of royalists. the law real wages, which had been falling, reached their low point and the gap between the poor and others widened. there were depressions from 1629-32 and from 1636 to about 1640, which called for royal proclamations for the relief and distress, especially among the poor. the book of orders, for the relief of distress in earlier reigns, was to be reissued. the assize of beer and bread maintaining quality, prices, weights, and measures, was to be duly kept. hoarding of foodstuffs was to be punished. fish days and lent were to be observed to maintain the fishers. abstaining from suppers on fridays and on the eves of feasts was ordered in all taverns and commended to private families. city corporations were to give up their usual feasts and half the charge given to the poor. foreign ships were not to be supplied with food for long voyages. the revised book of orders also covered the regulation of beggary, the binding of apprentices, and the general relief of the poor. all magistrates were to enforce the rules and raise special rates from all parishes, the richer of these to help the poorer. from 1625 to 1627 these statutes were passed: no one shall engage in sports or any pastimes outside his own parish or bearbaiting, bullbaiting, interludes, plays or other unlawful pastimes inside his parish on sundays because such has led to quarrels and bloodshed and nonattendance at church. the fine is 3s.4d. or if the offender does not have the money or goods to sell to pay, he shall be set in the public stocks for three hours. no carrier with any horse or wagon or cart or drover with cattle may travel on sunday or else forfeit 20s. no butcher may kill or sell any victual on sunday or else forfeit 6s.8d. every innkeeper, alehousekeeper, and other victualer permitting a patron who is not an inhabitant of the area to become drunk shall forfeit 5s. or be place in the stocks for six hours. offenders convicted a second time shall be bound by two sureties to the sum of 200s. as of 1627, a parent sending a child out of the country to go to a catholic school was to forfeit 100 pounds, one half to the informer and one half to the king. the petition of right herebefore described was passed as a statute in 1627. judicial procedure the star chamber decided cases as diverse as a case of subordination of witnesses, cases of counterfeiters of farthing tokens, and cases of apothecaries compounding ill medicines. it tried to keep down the prices of foodstuffs for the benefit of the poor; it repressed extortion and false accusations, and disbarred an attorney for sharp practices; it punished defamation, fraud, riots, forgery of wills; it forbade duels. a special virtue of its position was that it could handle without fear matters in which men of social or local influence might intimidate or overawe juries or even country justices. it punished a lord who caused records to be forged, unlawfully entered lands, and seized tithes. it disciplined a nobleman for drawing a sword on a lord hunting hare. in one of its cases, sir edward bullock, a knight wanting to enclose a common of a thousand acres threatened his neighbor blackhall when he would not sell his lands and rights. the knight hired a man to break down the hedges and open a gate that had been staked up, so that his neighbor's cattle would stray. he sued his neighbor three times for trespass, lost his cases, and threatened revenge on all the witnesses who testified against him. he had the house of one pulled down. the pregnant wife and a naked child were turned out and had to lie in the streets because no one dared to take them in, even when a justice so directed. the witness, his wife, and family took refuge in an unheated outbuilding in the winter. he and his wife and one child died there. the knight had another witness cudgeled so that she was black and blue from the waist up, and could not put on her clothes for a month. the knight threatened to set fire to the house of another witness, and sent his men to pull him out of doors and keep him prisoner for some hours. the star chamber imprisoned the knight and his men. the knight was fined 1,000 pounds and the men 50 pounds each. the knight also had to pay one witness 100 pounds in reparation to the surviving children of the family whose house had been pulled down. but the power of the star chamber was abused by king charles i. for instance, one lord was accused by another of calling him a base lord. the evidence was paltry. but he was fined 8,000 pounds, one-half going to the king. a lord who was accused of converting agricultural land to pasture was fined 4,000 pounds. a person who exported fuller's earth, contrary to the king's proclamation, was pilloried and fined 2,000 pounds. a man who defaced a stained-glass window in a church was fined 500 pounds and ordered to pay for a plain glass replacement. a man who became sheriff of a county and had taken the oath which bound him to remain in the county was elected to parliament and stood in opposition to the king on many matters. he was imprisoned for many years until he made a humble submission and had to pay a heavy fine. a london importer who was alleged to have said "that the merchants are in no part of the world so screwed and wrung as in england; that in turkey they have more encouragement" was fined 2,000 pounds for seditious and slanderous words against his majesty's happy government. a scottish minister circulated a book appealing to parliament to turn out the bishops and to resist its own dissolution by the king. in it he called the bishops men of blood, anti-christian, satanical, ravens, and magpies, preying on the state. he was against kneeling at the sacrament and denounced the queen for her catholic religion. he blamed the state for the death of citizens of a certain town by famine. for as he did "scandalize his majesties sacred person, his religious, wise, and just government, the person of his royal consort the queen, the persons of the lords and peers of this realm, especially the reverend bishops", he was fined 10,000 pounds, was to be unfrocked (which was done by the court of high commission), and was whipped, pilloried, one ear nailed to the pillory and cut off, his cheek branded, and his nose slit. then he was imprisoned for life, but only served ten years, being released by a statute of the long parliament. a puritan writer pyrnne wrote a book that included a condemnation of masks and plays, and all who took part, and all who looked on as sinful, pernicious, and unlawful. it opined that nero had attended plays and deserved to be murdered. since charles had attended plays and the queen had taken part in a mask, it was inferred that pyrnne meant them harm. his indictment alleged that "he hath presumed to cast aspersions upon the king, the queen, and the commonwealth, and endeavored to infuse an opinion onto the people that it is lawful to lay violent hands upon princes that are either actors, favorers, or spectators of stage plays". the justices saw in the book an attempt to undermine authority. the chief justice called the book a most wicked, infamous, scandalous, and seditious libel. pyrnne was sentenced to be degraded by oxford and disbarred by lincoln's inn, to be fined 5,000 pounds, to be pilloried and to have his ears cut off, and then to be imprisoned for life. three men who wrote attacks on the bishops and ecclesiastical courts, such as alleging that the bishops suppression of fasts and preaching had brought the pestilence upon the people and that the bishops had dishonored god and exercised papal jurisdiction in their own names, were each sentenced to 5,000 fine, the pillory, where their ears were cut off, and to life imprisonment. one, who had been convicted for libel before, was branded on both cheeks: "s.l." for seditious libeller. others printed similar material. in vain the star chamber limited the number of london printers to twenty, and made licensing stricter. these prisoners were set free by the long parliament. charles i intimidated justices to obey him in decision-making even more than james i. charles i so abused the power of the star chamber court that it was abolished by the long parliament and with it, the involvement of the king's council in civil and criminal cases. the regular church courts punished people for heresy, nonattendance at church, sexual immorality, working on the sabbath or a holy day, non-payment of tithes, and lending money at interest. the special ecclesiastical court, the court of high commission, was composed of clerics appointed by the king and decided cases of marriage annulment, alimony, adultery, married couples living separately, cruelty of husbands to wives, and habitual drunkenness. but it also took on cases of schismatics and extended its power over them to include staid and solid puritans, who uniformly believed that salvation was the only worthy earthly aim. acting on information attained through secret channels or from visitations, it would summon the accused, who was required to give, under oath, "full, true, and perfect" answers to broad and undetailed charges made by secret informants. refusal to take the oath resulted in commitment for contempt of court. if he denied the charges and fled, the court could hold the hearing without him. many fled out of the country or went into hiding in it. if the accused went to the hearing, he could not take an attorney with him. most of the issues involved clergy refusing to use the litany, to make the sign of the cross in baptism, to wear the surplice, or to publish the book of sports, and insistence on extempore prayer and preaching. other issues were clergy who, from the pulpit, inveighed against ship-money and unjust taxes, and spoke rudely against the bishops and tyrannical princes. one case is that of samuel ward, the town preacher of a large town, heard in 1635. he neglected bowing or kneeling on coming to his seat in church and preached against the book of sports. he did not read the set prayers from the official book, but said prayers he had himself conceived. to this he replied that a parrot could be taught to repeat forms and an ape to imitate gestures. but his most serious offenses had to do with his utterances from the pulpit derogatory to the tenets and discipline of the church. he was accused of saying that he believed that congregations still had the right of election of all officers, including ministers. also, he allegedly said that in preaching on the christmas holidays he told his people "that in the following days they might do their ordinary business, intending to cross that vulgar superstitious belief, that whoever works on any of those twelve days shall be lousy". he allegedly warned his people to beware of a relapse into popery. ward was convicted of depraving the liturgy, tending toward schism, frightening the people, and encouraging the overthrow of all manner of government. he was removed from his position, deprived of his ministerial function, suspended and silenced during the king's pleasure. he was ordered to make submission and recantation both in court and in his church and to give bond for 200 pounds. when he did not do this, he was sent to prison and lay there nearly four years, and died a few months later. in another case, a mrs. traske was imprisoned for at least eleven years for keeping saturday as her sabbath. many people were excommunicated and books censored for essentially political reasons. in 1637, the king proclaimed that the common law courts could not intervene in ecclesiastical courts. the court of high commission was abolished by the long parliament. justices of the peace had general and quarter sessions, the latter of which were held four times a year with all justices of the peace attending. it was primarily a court of appeal from penal sentences. but it was also an administrative body to determine taxes and make appointments of officials and grant licenses for businesses. in 1638, in distributing a deceased person's estate, the chancery court upheld a trust designed to hold the property for an heiress so that it did not become her husband's property. at the request of parliament, the king had all justices serve during their good behavior instead of serving at the king's will, which had been the practice for ages. this increased the independence of the judiciary. the rack was used for the last time in 1640 before the long parliament met. it was used to torture a rioter before hanging. men were still pressed to death for failure to plead, pickpockets still executed for the first offense, and husband murderers still burned. chapter 16 the times: 1642-1660 for four years, there was civil war between the king, backed generally by the upper class, the established church, and most of the gentry, against the parliamentarians, backed generally by middle class yeomen, town dwellers, some of the gentry, most of the great corporations, the city of london, the ports, the seamen, and the navy. oxford university was royalist, and cambridge university was puritan in sympathy. archery was not used in the war, having become just sport by 1633. flint-lock pistols, which relied on flint striking steel to ignite the powder, as well as swords were used by horsemen in the civil war. footmen were musketeers using a match lock with a cord boiled in vinegar as the match, and dressed in leather doublets and an iron-pot headpiece; or pikemen with long wooden poles with spearheads of iron or steel and short swords, and dressed in armor. this was the last time armor was used. the parliamentarians wore orange scarves to distinguish themselves from their enemy. cromwell, who had a natural aptitude for military matters, selected for his troops, puritan zealots with a puritan code of behavior which included no drinking or swearing. he selected horsemen based on ability rather than social class. he was regarded as one of the leaders of the independents, who wanted total abolition of the monarchy and of the aristocracy. when made a leader of the new model army, cromwell dressed all his foot men in red with only the facings being regimental colors. the new model army had been assembled because there had been disagreement about policy among the members of parliament who held commissions. almost all members gave up their commissions. for their continued support, many wives and also prostitutes put on men's clothing and followed the troops. they nursed the wounded. those many wives who stayed at home pleaded and answered in court; petitioned to the house of commons, e.g. for release of debtors from prison, high taxes, lack of work, and arbitrary government; and made other public appearances. puritan and royalist newspapers printed the news at least once weekly. poet john milton pled for civil and religious freedom, freedom of social life, and freedom of the press. he stated: "give me the liberty to know, to utter, and to argue freely, according to conscience, above all liberties." the mayor and citizens of london were given authority in 1642 to fortify all highways leading to the city and levy a tax on inhabitants for this purpose. when london was deprived of coal during the war, trees and flowers again flourished there. officers and seamen in navy ships were authorized in 1642 to take one-third of all prize goods captured, the other two-thirds going to the state. parliament approved certain persons to set forth ships at their own expense to defend the realm in 1643. they were allowed to keep any ships, goods, ammunition, or moneys they seized. saltpeter men were appointed by parliament in 1643 and later times to search and dig for saltpeter in pigeon houses, stables, and outhouses, but not dwelling, shops, or milkhouses. they had to repair any damage done to the contentment of the owners. complaints were made to parliament that there were scandalous and ill-affected fomenters of the civil war and disobeyers of the ordinaries of parliament and deserters of their ordinary places of residence. these complaints were made by members of the university of cambridge, students, clergy in surrounding counties, and schoolmasters. so a committee was established in 1643 to investigate and sequester their lands and goods, excepting onefifth of the estate for the wife and children. when charles was captured in 1646, the episcopacy of the bishops was abolished. when parliament was about to reinstate charles as king with weakened powers and establish a presbyterian state church, the soldiers, who were religious independents and who still had not been fully paid (the infantry pay was 18 weeks in arrears and the cavalry 43 weeks) despite plans to disband them, spontaneously took the king by force. they demanded liberty of conscience to practice their own religion and their pay. cromwell sided with the army and then became leader of the house of commons. charles dissembled in his negotiations with the army generals. he felt freed from his promises as soon as the pressure was removed. the army could not forgive charles' duplicity and deceitfulness and insisted upon his death as the only way to bring peace. cromwell gave up hope on negotiations with charles when he intercepted a letter by charles to his queen decreeing the final doom of the army adherents in favor of the scottish presbyterians. during protracted negotiations over months between the army and parliament over a new constitution, a renewed support for the king, which was inspired by him, necessitated a second civil war to put down this revolt and subdue its scot supporters. eventually the army took control of parliament by force, only allowing the few members who agreed with them on the trial of the king into parliamentary meetings. so charles was tried in 1649, found guilty of "an unlimited and tyrannical power to rule according to his will, and to overthrow the rights and liberties of the people ... which by the fundamental constitutions of this kingdom were reserved on the peoples' behalf in the right and power of frequent and successive parliaments or national meetings in council", and maintaining a war against his subjects, which amounted to treason. to prevent his adherents from trying to reinstate him, he was condemned to death and beheaded in january 1649. to pay for the civil war, an assessment tax on the yearly value of rents, annuities, and offices was often levied. the main burden of this tax fell on the gentry rather than the merchants and smaller men of property, as previous taxes had. an excise tax, a tax on consumption, was begun on ale and beer and then extended to meat, salt, starch, soap, and paper. it was gradually extended to many goods. the excise taxes were paid, as was the customs tax, by manufacturers on goods made in england and by foreign manufacturers on goods at the ports. parishes had to give maintenance to maimed soldiers and provision for the livelihood to the wives and children of killed soldiers. masters of apprentices who became soldiers had to take them back as apprentices without loss for their absence in defense of the commonwealth. masters who received considerable loss by the absence of their apprentices received reasonable satisfaction from the public stock. from 1640-60, royalists were purged from oxford and a group of baconians moved into the university behind parliamentary armies. at the two universities, books were no longer chained to the bookcases. the universities were freed from taxation. after the civil wars, cromwell led the country. he was a military, political, and religious leader. he had become a puritan zealot after a youth of gambling, drinking, debauchery, and rioting. he believed that military success was a reflection of divine favor and he regarded himself as one the few elect preordained for salvation. those in power in the new commonwealth tended to explain their regime in terms of popular consent, and the takeover from charles i as due to his breaking of a contract with the people. most people dressed in puritan fashion. a puritan's favorite readings were the old testament, epistles of st. paul, and writings of john calvin. wealth and prosperity steadily increased in spite of the civil wars. during cromwell's tenure, there was a marked revival of economic prosperity. by the mid-1600s, landlords had been able to shorten their leases so that a lease of twenty-one years was the predominant form of landholding. patent protection was given in 1642 for seven years to the inventors of a device for salvaging ships' goods and cannons from the seas. with it they could convert to their own use one half of the items retrieved, the other half going to the navy and parliament. patent protection was given in 1650 to george manby on his new invention for boiling liquors and making salt with less coal and wood and iron, lead, and copper for fourteen years. patent protection was given in 1651 for fourteen years to jeromy buck for melting iron, lead, tin, copper, brass, and other metals with coal without burning charcoal. the merchant adventurers were incorporated again in 1643 to have a monopoly. it was required to admit into membership for 100 pounds anyone free of london and bred as a merchant, and for 50 pounds any non-inhabitant of london. the penalty for trading for one who was not free of the corporation was forfeiture of his goods. in 1648, the house of commons abolished the monarchy and in 1649 the house of lords. also in 1649 it declared that england "should thenceforth be governed as a commonwealth and free state by the supreme authority of this nation, the representatives of the people in parliament." it made a new constitution. john milton defended the commonwealth as superior to the monarchy because it could not deteriorate into tyranny in his books: "first defense of the people of england" in 1651, and "second defense" in 1654. he lauded cromwell as great in war and great in peace, and exemplifying the principle that "nature appoints that wise men should govern fools". thomas hobbes, the son of a clergyman, and tutor to students, wrote "leviathan" in 1651 on his theory of sovereignty. hobbes thought that states are formed as the only alternative to anarchy, barbarism, and war, so that supremacy and unity of a sovereign power is essential to a civilized life and the protection of the citizenry. a sovereign may be a man or body of men as long as his or its authority is generally recognized. there must be a social contract among the citizenry to obey a certain sovereign. to avoid religious conflict, there must be a complete subordination of the church to the state and the religion of a state must be dependent upon its secular sovereign. hobbes thought that knowledge of the world came through experience and not reason alone. only matter exists, and everything that happens can be predicted in accordance with exact, scientific laws. he regarded human societies as purely mechanical systems set in motion by human desires. he saw self interest as the mainspring of moral law. conflicting self interests transformed into a lawful system of agreements. hobbes opined that all power really originated in the people and that the end of all power was for the people's good. on the other hand, james harrington, who wrote "the commonwealth of oceana" in 1656, opined that a stable society depended on a direct relationship between the distribution of property and political power; no one with property worth more than 2,000 pounds should be allowed to acquire more and property should be divided among children. a senate of mature property owners were to make and debate the laws while an assembly elected by universal suffrage was to vote on them because "a popular assembly without a senate cannot be wise and a senate without a popular assembly will not be honest". a third of the senate would turn over every year. john milton defended the execution of the king in "the tenure of kings and magistrates" in which he maintained that the people may "as often as they shall judge it for the best either to choose him or reject him or depose him, though no tyrant, merely by the liberty and right of freeborn men to be governed as seems to the best". he also wrote in favor of liberty of the press. ordinary speech found its way into prose writing. lands of more than 700 royalists, including church lands, were confiscated and sold or leased by county committees. many royalists put their lands into trusts or turned them over to relatives or sold them outright to prevent confiscation. it was an upheaval comparable to the dissolution of the monasteries. also, specified papists who had taken up arms against the realm lost their lands, goods, money, rents, and two-thirds of their personal estates. but allowance was made for the maintenance of their wives and children. the book of common prayer was abolished because of its burdensome ceremonies. it was replaced by a directory for public worship. according to this, the sunday service was to include reading of the scriptures, prayer, and a sermon, ordinarily on some text of scripture which would be explained with reasons therefore and applied to peoples' lives so they could see if they had sinned or not. the ending of episcopal patronage gave some parishes the right to elect their own ministers. all festivals and holy days were abolished, e.g. christmas, easter, whitsuntide. instead, scholars, apprentices, and servants were to have recreation and stores were to be closed every second tuesday of the month. the usual merry-making, music, dancing, and sports after the sunday service were discontinued. a day for fasting: the last wednesday of every month, was declared by statute. this day was to be "kept with the more solemn humiliation, because it may call to remembrance our sins, and the sins of our forefathers, who have turned this feast, pretending the memory of christ into an extreme forgetfulness of him, by giving liberty to carnal and sensual delights, being contrary to the life which christ himself led here upon earth, ...". this statute lasted for only five years from 1644 because observance of it was not consistent throughout the country. educational opportunities such as in grammar schools were more widespread and stronger than ever before or since until the 1800s. about 78% of men in london were literate, and 30% of men nationwide. about half the women in london were literate by 1700. in 1645, the marshalls of the admiralty and five major ports were ordered to search all ships for stolen children since it had been a problem in london. the elderships of the church were given power in 1645 to suspend from the sacrament of the lord's supper all ignorant and scandalous persons. ignorance was lack of knowledge that there is a god and this is the one true god we worship, that this god is one, yet three persons: father, son, and holy ghost, that god created man in his own image, that all have sinned and therefore shall die, that there is one mediator between god and man: jesus christ, who died on the cross to save men from their sins, that he rose from the dead, ascended into heaven, sits at the right hand of god, and intercedes for us, that christ and his benefits are applied only by faith, that the souls of the faithful live with christ in blessedness, that non-believers and non-repenters shall perish eternally, that the sacraments are baptism and communion, and that there is a judgment day on which the righteous will be given life eternal and the wicked shall receive everlasting punishment. scandalous persons are those who blasphemously speak or write anything of god, his holy work or the sacraments; an incestuous person; an adulterer; a fornicator; a drunkard; a profane swearer or cursor; a murderer; a worshipper of images, crosses, crucifixes, relics, saints, or angels; makers of images of the trinity; one who professes not to be in charity with his neighbor; any challenging another to fight or accepting such challenge; on the lord's day, dancing, dicing, cards, masking, wake, shooting, bowling, football, wrestling, plays, interludes, fencing, bullbaiting, bearbaiting, hawking, hunting, coursing [hunting with hounds], fishing, fowling, selling wares, travel without reasonable cause; a brothel-house keeper; one who solicits the chastity of another; one who marries a papist or consents to the marriage of his child to a papist; own who goes for advice to a witch, wizard, or fortune-teller; one who assaults his parents, or any magistrate, minister, or elder in the execution of his office; and one attainted of barratry [purchase or sale of office or preferment], forgery, extortion, or bribery. if such a person persists, he shall be excommunicated. cromwell did not disapprove of activities prohibited because of the recreation they provided, but thought that they had become too central to people's lives. he did not close the taverns or ale houses. in 1653 it was required that public preachers be approved by a commission nominated by the lord protector and parliament because there had been too many "weak, scandalous, popish, and illaffected" ones. in 1654 named persons were ejected as scandalous, ignorant and insufficient ministers and schoolmasters. because the poorer parishes of london were having problems supporting their poor, a corporation for the poor of london was established in 1647 with authority to erect workhouses and houses of correction. imprisoned debtors who had less than five pounds and less that five pounds worth of trade tools and clothing and bedding for his family were ordered released in 1649. wardship was abolished. military tenures were abolished. feudal tenures were converted into freehold in 1646. in 1653 those living in crown forest land were given free socage in that land. the game laws were not enforced, so people could eat deer. enclosures were increasing and parliament was disinclined to protect copyholders against enclosures, favoring those with rights of ownership. enclosure was no longer deterred especially after abolition of the star chamber. the legal device of "strict settlement" evolved to prevent heirs from breaking up estates enabled families to concentrate land and capital into large units. the oldest son inherited the land and the younger sons now received money. clover seed was sold in london by 1650. it revolutionized the cultivation of barren land. england began to export instead of import grain. but vagrancy increased from people dispossessed of land. and the village artisan, when deprived of his field and of his rights of common, could not continue to work at home, but had to accept the wages offered to him in an employer's workshop. employers and entrepreneurs were now free from control by the crown. there were no more attempts to supervise quality of manufactures or to fix prices or regulate wages. there was greater freedom established in relations between employers and workers. the government no longer tried to compel employers to keep employees in times of economic slump. the requirement of seven year apprenticeships and being the son of a freeholder to be an apprentice were not enforced. the economy was still volatile due ostensibly to variable harvests, amount of gold and money in circulation, and balances of trade, and to periods of plague. wages rose steadily. the rise in prices ended about 1650, and prices remained stable until about 1775. there was more mobility of people. taxation became regular and it was controlled by representatives of the taxpayers. population growth gradually stabilized. capitalism was coming into being. for instance, the clothier was now a manufacturer. he had become a contractor, taking wool to the specialist spinner, the yarn to the specialist weaver, the rough cloth to be washed and stretched, and finally to the dyer. this cloth was sold at retail by the drapers. tin on the surface was exhausted, so capital was used to drive deep shafts in tin mines. no longer did a single man with a single ship sail around until he found a market, but companies trading overseas had their ships, wharves, and depots furnished by men's savings put into a common stock. the first major capitalist industries were coal mining, iron mining, and foreign trade because they all needed large investments, and thus joint-stock company organization. cromwell reconstituted the east india company on a wider and more permanent basis. he gave it a new charter in 1657 which included authority to make stock permanent, thus ensuring a continuity of capital. this solved the problem of the competition of overlapping voyages which still occurred despite their terms of several years. the company became one of the first permanent joint-stock companies. now the stock was never wound up. the company had permanent capital which could grow. the absence of competition among voyages made the company stronger in the face of a common enemy, such as a rival trading country or indian groups. the charter also authorized the company to fortify and colonize any of its establishments and to transport to them settlers, stores, and ammunition. later in 1657, the company threw open the freedom of the company to the public for a nominal sum of five pounds. now the merchant adventurers and private traders could participate. it provided that dividends were to be paid only in cash and not in kind (goods). it also provided for appraisals of the company's property to be made every three years, so any shareholders could redeem their shares proportionately. his shares would then be resold. people began to buy and sell their shares among each other. the company made the minimum subscription 100 pounds. each person holding 500 pounds worth of shares had one vote. holding 1,000 pounds worth of shares qualified one for election to the committee of twenty-four. the seats of the members of this committee and of the governor and deputy governor could no longer be permanent, but had limited and staggered terms. the continuity of capital took the place of the permanence of the governing body in providing stability. there was a regular scale of salaries for employees, and rules of conduct such as the one disallowing any clerk of the india house from going to play houses, dancing schools, or taverns. the company established almshouses for its widows and orphans. in 1657 the muscovy company, renewed its charter for trade in russia and established a new general stock. if a man bought a share, he bought freedom of the company. an annual dividend was declared from the annual profits. commercial men regularly kept accounts with bankers. merchants used division to apportion profits or losses to the parties whose capital was involved. simple and compound interest were used. the concept of contract became a familiar one. regular private bankers of london emerged from the goldsmiths from 1640 to 1675. they issued bank notes and paid checks. cromwell increased trade by seizing territories, establishing colonies, and warring with competitors for master of the seas and trade. in 1649 it was provided that no one who paid his assessment for soldiers' pay would have to quarter any of them. authority was given in 1649 to impress seamen: mariners, sailors, watermen, surgeons, gunners, ship carpenters, caukers, coopers, whoymen, and carmen for carriage of victuals. english ships were embellished with decoration. their sail area was increased by triangular fore and aft sails. the navy increased from 39 to 80 vessels. after serving in foreign wars, ex-soldiers were allowed in 1654 to practice any trade without serving a seven year apprenticeship. colonies new hampshire and maine were established in 1635, connecticut in 1636, and rhode island in 1638, as offshoots from other colonies. in 1649 a corporation was established to teach the gospel of jesus christ in new england to indians. about 1650, steel was hardened by repeated quenchings and temperings when the steel had reached certain colors. brass was made from copper and zinc alloyed together. there were power-driven rolls for the coinage from 1657. strips of silver were passed between engraved rolls. then coins were punched out and their edges serrated. in the 1650s, huygens made the first pendulum that worked practically in a mechanical clock. this new clock increased the accuracy of time-keeping tenfold. he also introduced the concept of mathematical expectation into probability theory. there was a thermometer which used liquid such as water or alcohol in a glass tube instead of air. dutchman stevinus showed that the pressure at the bottom of a column of liquid is proportional to the height of the column, and not to its bulk, about 1634. he also studied oblique forces, and the balancing of such that could bring about "stable equilibrium". evangelista torricelli, an italian student of galileo, discovered in 1643 that any fluid will be supported at a definite height, according to its relative weight, as compared with air. he realized that a mercury column, 30 inches in height, in a long glass tube inverted in a cup of mercury, was being supported by air pressure exerted on the mercury in the cup. when he observed that this height changed with the weather, he had invented the mercury barometer. in his work, he created and used vacuums. blaise pascal, a french mathematician, physicist, and religious philosopher, was a child prodigy. at the age of 12, he proved euclid's 32nd theorem that the sum of the angles of a triangle is equal to two right angles. before age 16, he wrote a book on conic sections. he is famous for his theorem that a hexagon inscribed in a conic section has the property that the three meeting points of the opposed sides are always in a straight line. he constructed a calculator, which could handle nine-digit numbers, in 1644 to assist his father, also a gifted mathematician, in tax computations he did as a local government official. he had torricelli's mercury barometer carried up a mountain and found that the height of the column dropped as altitude increased, and thus that air pressure decreased with altitude. this showed that the attribution of these effects to nature's abhorrence of a vacuum were due instead solely to the weight and pressure of air. he determined that the height to which the mercury rose was the same regardless of the shape of the vessel containing it. around 1646, he did experiments with double vacuums and on the results formulated his principle that pressure applied to a confined liquid is transmitted undiminished through the liquid in all directions regardless of the area to which the pressure is applied. around 1653, he laid the foundations for the theory of probabilities after being asked by a gambling friend why, in playing dice, some frequencies came up more often than others. he developed a means of calculating probabilities with his "pascal's triangle" of coefficients of (a+b) raised to the nth power. each row represents the coefficients of a power one greater than the power of the previous row. each number is the sum of the nearest two numbers in the row above it. he and lawyer and mathematician pierre fermat invented the theory of probabilities. fermat also proved that the law for refraction (bending) of light results from light's following the path that takes the shortest time. he founded number theory, the study of properties of whole numbers, in 1640. fermat formulated the notion of a line tangent to a curve and started the development of differential calculus, in which a rate of change is expressed as a function of time in equation form and also as a tangent to the curve associated with that equation. this work helped lay the foundation for the mathematics field of analysis. he and german gottfried leibniz formulated the principle that an equation with two unknown quantities can represent a curve. leibnitz believed that man's mind can arrive at truths about entities by pure thought. jean ray from france concluded from his experiments that every piece of material has a given weight, including air and fire. otto von guericke from germany discovered that, in a vacuum, sound does not travel, fire is extinguished, and animals stop breathing. at a time when mathematics was only a business of traders, merchants, seamen, carpenters, and surveyors, mathematician john wallis, the son of a minister, studied sections of cones [circles, ellipses, parabola, and hyperbolas] as curves of the second algebraic degree, i.e. with an exponent of two, i.e. y = (a (x squared)) + b. he also worked with negative and fractional exponents. around 1655 he invented the infinite arithmetic and introduced the symbol for infinity. he determined that the area under any curve defined by the equation y = (x to the nth power), was x to the (n+1)th power divided by n+1. he introduced the concept of the limit of a string of numbers. he wrote a treatise on algebra which was historical as well as practical. he also decoded enemy cyphers for the sovereign. some english gentlemen interested in the new scientific methods originated by galileo had meetings beginning about 1645 to discuss scientific topics. one group met at gresham college and was headed by wallis. another group was led by robert boyle, a philosopher, physicist, and chemist. they wrote in english instead of latin. these meetings later gave rise to the royal society for science. since the puritans forbade music in churches, but enjoyed it in domestic circumstances, much secular music was composed, published, and played. there were many musical clubs. the violin became very popular. solo songs were much sung. the first english opera: "the siege of rhodes" was written and performed with women on stage. writers of the time included john milton, political philosopher james harrington, poet edmund waller, thomas fuller, poet abraham cowley, and biographer issak walton. john aubrey wrote anecdotes about famous men. jeremy taylor, chaplain to charles i, wrote on theology. people still read french romances translated into english. dancing was still popular. coffee houses came into prominence as places of social discourse. the first coffee house was established in london in 1652; ten years later, there were 82 coffee houses in the city. there were elegant pleasure gardens, with a fee for access. they were used for promenades and picnics. ladies and their gallants rendezvoused there. cromwell introduced the habit of port drinking to england. in 1657, one general post offices was established with one postmaster general for all of england. no other person could have the horsing of the through-posts. it cost 2d. for a letter to or from 80 miles of london and 3d. for one outside 80 miles of london. the society of friends was founded by the son of a weaver. they greeted everyone as "friend" and did not bow; remove their hat, as was the custom when before the king or an earl; or otherwise show any reverence to anyone. from 1650, they were called quakers because they trembled when religiously stirred. they reverted to the ancient "thou" and "thee" appellations. their dress was particularly simple, with no buttons, lace, ruffles, or embroidery. they hated ritual so much that they rejected baptism and communion. they did not observe the sabbath as a special day different from other days. they derided the holiness of churches. no clergy were admitted into their sect. when they met for divine worship, each rose to deliver extemporaneous inspirations of the holy ghost. women were admitted to teach the brethren and were considered proper vehicles to convey the dictates of the spirit. quakers believed that every man, in his own life, could be fully victorious over sin. they denied any clerical authority and all texts. they believed in the separation of church and state. they refused to swear to any oath, e.g. in court, or to participate in war. they refused to take off their hats to anyone but god. it was their practice to turn the other cheek when one cheek had been struck. if asked for his cloak, a quaker would give it. he never asked more for his wares than the precise sum which he was determined to accept. the quakers encouraged widows and widowers to provide for children from a first spouse when remarrying. they carefully selected masters and mistresses who wanted to take on child apprentices for their suitability for such responsibility. the education of quaker women did not decline, as it did for other women. from the fervor of their zeal, the quakers broke into churches, disturbed public worship, and harassed the clergyman and audience with railing and reproaches. when brought before a magistrate, they show no reverence but treated him as an equal. sometimes they were thrown into mad house or prisons and sometimes whipped or pilloried. they endured stoically under this suffering. mary fisher from yorkshire introduced quakerism to colonial new england. in 1653 there were separation agreements between spouses as to property, e.g. support and maintenance. cromwell had bad experiences with parliaments. the rump parliament was a remnant of the long parliament. the army and then cromwell, although a member, came to believe that its members were selfinterested, preoccupied with perpetuating themselves in seats of power, and corrupt. they thought that their own hopes of reform in the law, in the church, and in public finances were being deliberately frustrated. cromwell came to doubt that it would ever give the people adequate government and protection. he started to believe that one man as chief executive could do this better. cromwell dismissed the rump parliament in 1653. a new constitution created a puritan "parliament of saints". these men were nominated in various ways, such as by church parishes, and selected by cromwell. this one-house parliament of saints in 1653 made cromwell lord protector for life with executive power of the state, with responsibility for making peace and establishing order after a decade of civil strife and political chaos. he was to administer the government and be the chief magistrate. it also provided for triennial parliaments consisting of one house, and religious freedom for all except roman catholics and adherents of the formerly established church of england. cromwell did not tolerate the ritual of the formerly established english church nor allow any of its adherents to have any office under him. his was a purely puritan government. he did not sell offices. the parliament of saints challenged many vested interests in property such as sales of delinquents' and papists' lands. it clashed severely over the continuation of tithes to the church. it became disorderly when some declared the parliament dissolved and left. others remained in their seats. to avoid a parliamentary crisis, cromwell had soldiers close the parliament of saints and lock its doors. the people supported this action because they were dissatisfied with the state of public affairs. the next parliament that was tried was elected on a new constitutional basis of men with 200 pounds, but these men voted to make parliament sovereign without a chief executive, thereby abolishing the protectorate. cromwell was distressed that this parliament had also voted themselves to be the sole determinors of atheism and blasphemy instead of advancing liberty of religious conscience and religious toleration as cromwell had advocated. he dissolved this parliament, declaring that it was not acting for the public good. a last parliament was also dissolved by cromwell for tending to loosen the bonds of government and thereby threatening the peace of the nation. cromwell had first ruled as a democratic leader who did not believe in force, but preferred to persuade with reason. he initially believed that people would do the right thing according to their consciences, but was disillusioned and then became autocratic. he came to rule as a military dictator. payment of taxes was enforced by distraint. after 1654, he issued about 100 proclamations covering public amusements, roads, finances, the condition of prisons, the imprisonment of debtors, banning of dueling and cockfighting, law reform, control of religion and education, and reorganization of the army. the singing of ballads was banned. the court of chancery was reformed by proclamation. the established church was reformed and the power to interfere with different faiths was denied to it. each parish could choose its form of service, whether presbyterian, congregational, baptist, or any other seen as fundamental by the puritans. no one was compelled to attend any particular church or to accept the discipline of any particular minister. but the book of common prayer was forbidden. there was freedom of worship for presbyterians, independents, baptists, quakers, catholics, and jews who had secretly migrated to england to avoid persecution on the continent, but not prelatists , who favored government of the church by bishops). in 1655, cromwell placed major generals in charge of eleven newlyestablished provinces. as their governors, they had authority to levy troops, exact taxes imposed by the protector, disarm royalists and catholics, examine into the conduct of the clergy and schoolmasters, arrest dangerous and suspicious persons, prevent unlawful assemblies, and to enforce the existing laws against immorality and blasphemy. the only appeal was to the protector. since they were puritans, they ordered public ale houses to close as dusk, banned idlers, minstrels, and actors, forbade exercising of horses on sunday and the holding of markets on saturday as well as sunday, censored the press, and proscribed newspapers. horse races, which meetings were used for seditious purposes, were closed. theaters were closed. dancing was discontinued. organs and choirs in churches were prohibited. court masks continued because they provided soothing music. after a year, cromwell withdrew the major-generals. from this time, men of property hated the idea of a standing army. in 1657, the officers of a new parliament modified the constitution and cromwell approved it. it was to secure liberties of the people as they never before had. under the modified constitution, there were again two houses. the commons regained its old right of exclusively deciding on the qualification of its members. parliamentary restrictions were imposed on the choice of members of the council, officers of state, and officers of the army. a fixed revenue was voted to the protector. no moneys were to be raised except by consent of parliament. liberty of worship was guaranteed to all except papists; prelatists; socinians, who denied the divinity of jesus; for those who denied the inspiration of the scriptures. liberty of conscience was secured for all. in 1658, cromwell tried another parliament, but dissolved it because it wrangled without resolution. there was continual problem with catholics. mayors, justices and capital burgesses of towns where papists or others had caused rebellion and insurrection and plundered, robbed, pillaged, murdered and raped, were given the power in 1642 to call, assemble, train, and arm soldiers for defense. the committee of the militia of london was given authority in 1647 to search all houses and places for papists and to search for and seize any arms, ammunition, and war materials in custody of such persons. in 1648, all papists and soldiers of fortune who had borne arms against parliament were ordered to depart from within twenty miles of london and westminster or be imprisoned as traitors. in 1657 convicted papists and people marrying convicted papists were required to take an oath renouncing the pope and catholic church or lose two-thirds of their lands and estate, retaining their house on the remaining one-third. if one went to mass in an ambassador's house, the fine was 100 pounds and imprisonment for six months, one half going to the informer. in 1659 all householders in london and westminster had to give a list of persons lodging in their house, and the horses and arms there. but the laws against catholics practicing their religion were not rigorously enforced, nor were those against adherents of the formerly established church of england. after cromwell died, the people demanded the return of a genuine and free parliament. the old constitution was restored and a new house of commons was elected. it called charles ii to return to be king if he promised religious freedom and backpay to the army, which had not recently been paid. when cromwell's puritan soldiers were disbanded, they did not drift into thievery as royalists soldiers had before, but took up honest work such as baker, mason, brewer, baker, or haberdasher. puritanism now made itself felt not by the sword, but in literature and politics. it affected the character of the english, who tend to be stoics, and imbued capitalists with a hard-working attitude. the law after the civil wars, the law against enclosure was not enforced. what was passed in parliament in cromwell's time were called statutes, but after cromwell's time, these statutes were not recognized as legitimate. "whereas public sports do not well agree with public calamities, not public stage-plays with the seasons of humiliation, this being an exercise of sad and pious solemnity, and the other being spectacles of pleasure, too commonly expressing lascivious mirth and levity ... public stage plays shall cease, and be forborne instead of which are recommended to the people of this land the profitable and seasonable considerations of repentance, reconciliation, and peace with god, ..." no book or pamphlet may be printed, bound, stitched, or sold or imported unless licensed and entered into the register book of the company of stationers. officials of this company and of parliament may search all places which they shall think meet for all unlicensed printing presses and all suspected printing houses, warehouses, and shops and other places for unlicensed books and pamphlets and papers and seize them and apprehend all authors, printers, and other involved people and bring them before parliament or the committee on examinations for punishment. justices of the peace and other officers may order doors and locks broken for this purpose. the fine is ten pounds for authors, five pounds for printers, two pounds for booksellers, and one pound for buyers who conceal a book bought. one half of each fine shall go to the person who discovers and prosecutes the offender, and the other half shall go to the poor. this law suppressed royalist newspapers but was enforced only with great difficulty. all shall observe sunday and days of thanksgiving in their "duties of piety and true religion publicly and privately" and none may sell wares or goods, including fruit or herbs upon pain of forfeiture of such. none may, without reasonable cause, travel, carry burdens, or do any worldly labors or work whatsoever or pay a fine of 10s. this work shall include grinding grain, fulling in mills, burning turf or earth, gathering taxes, melting wax for candles, brewing, baking, butchering cattle, tailors fitting or carrying clothes, barbers trimming hair, being present at fairs or markets, or washing, whiting, or drying clothes. nor may any one maintain or be present at wrestlings, shooting, bowling, ringing of bells for pleasure or pastime, masks, wake, church-ale, dancing, games, sport or, for those over 14, forfeit 5s., and for those having care or education of a child under 14, 12d. maypoles, a "heathenish vanity, generally abused to superstition and wickedness", shall be taken down by officers or else forfeit 5s. per week. if any offender can't pay his fine, he shall be put in the stocks for three hours. however meat maybe dressed in private families, and victual sold in inns and victualing houses in a moderate way, and milk sold before 9a.m. or after 4p.m. persons of the trinity, angels, or saints shall be demolished. altar and communion tables must not be raised but leveled. there may be no copes, surplices, superstitious vestments, or holy water fonts. there may be no crosses, crucifixes, pictures of the trinity, angels or saints on plates. all organs must be taken away. the fine for using the book of common prayer is five pounds for the first offense, ten pounds for the second offense, and one year imprisonment without bail for the third offense. the penalty for writing or preaching against the directory for public worship is five to fifty pounds. blasphemies and heresies such as teaching or writing or printing that there is no god, that god is not almighty, that jesus was not divine, that the resurrection of jesus did not occur, that the bible is not the word of god, or that there is no judgment day after death, are felony without benefit of clergy. if such an offender recants, he shall stay in gaol until he obtains two sureties. if he offends again after recantation, it is felony without benefit of clergy. in 1650 adultery was declared to be a felony, except for a wife whose husband had been beyond the seas for three years or had been reputed to be dead. incest was also declared to be a felony. it was defined as marrying or having carnal knowledge of one's grandparent, parent, sibling, mother's brother or sister, father's wife, mother's husband, son's wife, daughter's husband, wife's mother or daughter, or husband's father or son. fornication was given a punishment of three months imprisonment and until security was obtained for one year for good behavior. it was defined as carnal knowledge of a virgin, unmarried woman, or widow. a common bawd or one keeping a brothel or bawdy house was to be whipped, set in the pillory, marked in the forehead by a hot iron with the letter: b, and then imprisoned for three years without bail and until there were sureties for good behavior for life. the second offense was felony without benefit of clergy. there was to be no corruption of the blood. however, juries were reluctant to convict for adultery and incest. there shall be no profane swearing or cursing of forfeit by a lord 30s., a baronet or knight 20s., an esquire 10s., a gentleman 6s.8d., and all others 3s.4d. there is a double fine for the second offense. for the tenth offense, the offender shall be bound by sureties for good behavior for three years. a person equating himself or another with god or not believing in god shall be imprisoned for six months without bail. for the second offense, he shall be banished from the nation. no longer shall people be punished for nonattendance at church on sunday or days of thanksgiving, but may be at some other place of prayer, preaching, reading, or the scriptures. hawkers and ballad singers have been libelous, so are to be whipped as common rogues and then dismissed. also, their ballads and pamphlets are to be confiscated. vagrant, idle, loose, dissolute and disorderly persons and fiddlers in inns, alehouses, and taverns are to be punished as rogues, vagabonds, and sturdy beggars, that is, whipped. in 1649, treason against parliament was defined as writing, printing, or declaring that the government is tyrannical, usurped, or unlawful; or that parliament is not the supreme authority of the nation; or plot, contrive, or endeavor to stir up or raise force against the government. attainder for such would not work corruption of the blood. treason to the protector was defined the same as it was to the king. army deserters are to be corporally punished or executed. fellable wood and underwood, but no timber trees, may be cut within 60 miles of london because fuel is needed, especially by the poor. this will be supervised by overseers appointed by parliament. no one may import foreign hats or hatbands to relieve that industry in england. as of 1656, certain food could not be exported when the prices of such exceeded a stated amount. for instance, 5 pounds for a 36 gallon barrel of beef, 6d. for a pound of bacon, 4 pounds and 10s. for a 224 gallon barrel of butter, and 24s. for 64 pounds of rye, pease, or beans. the customs for such items was more for foreigners than for natives, for instance 3s. for natives and 5s. for foreigners for a barrel of beef. butter for sale must not be corrupt and be properly weighed. one must obtain a license to buy wheat or other grain and put it to sale in meal or flour or else forfeit three times the value. all books of the law, writs, pleadings, and patents shall be in english or else forfeit 20 pounds. no deer may be killed or else forfeit 15 pounds, half to the informer and half to the poor. interest may not exceed 6 pounds for a loan of 100 pounds yearly as of 1651. no goods are to be imported from america, asia, or africa except in english ships or else forfeit all goods and the ship, one half of which goes to the one who seizes the goods and prosecutes. none may be imported from europe except in english ships or ships from the country of origin of the goods. no salt fish may be imported or exported but in english vessels. there is a 10 pound reward for discovery of highwaymen and burglars or persons who break and enter into houses and there use violence. no cart or wagon or carriage on the road may be drawn by more than five horses or six oxen and a horse except for military vehicles. notice of intended marriages shall be published once a week for three weeks in a public meeting place called church or a public market place next to church. exceptions to the marriage shall be noted by the register and considered by the justice of the peace before the marriage is performed. the words used shall be: "...promise to be unto thee a loving and faithful husband..." and "promise to be unto thee a loving, faithful, and obedient wife...". there shall be no cock-fighting because it disturbs the peace and usually is accompanied by gaming, drinking, swearing, and quarreling. anyone challenging or accepting a challenge to duel shall be imprisoned for six months without bail, and must acquire two sureties for a year. anyone fighting a duel in which death ensues, shall be banished for life. horse races were forbidden in 1654 for six months to discourage mischievous plots and designs by enemies of the state. the penalty was forfeiting the horse. attendees were to be brought to justice. as of 1657, a house or building built within ten miles of the walls of the city of london not having at least four acres had to pay a fine of one year's rent. all houses within london or westminster or the suburbs must be brick or stone, and built straight up without protruding into the street or else forfeit 100 pounds. as of 1657 persons living extravagantly without visible estate or calling may be made by justices of the peace to acquire sureties for good behavior or go to gaol. they would also be sent to the house of correction to work for three months for the first offense and for a time specified by the justice of the peace for the second offense. anyone winning at betting or playing at cards, dice, tennis, and horse races shall forfeit double his winnings. excluded from pardon were buggery with man [sodomy] or animal [bestiality], carnal ravishment of women, and bigamy. husbands were responsible for their wives' oaths and fathers for their daughters'. drunkenness was much punished. judicial procedure the protector is the supreme magistrate of the commonwealth, with power to pardon all crimes, except murder and treason. parliament was no longer a court. use of the torture was proscribed in 1649. in 1652, the justices were given a salary of 1,000 pounds and forbidden to take fees or rewards. they also got tenure, thus freeing them from government pressure. now civil justice was honestly dispensed and justices were learned and honest. the jurisdiction of admiralty court was defined to include: ships and vessels with tackle, apparel and furniture thereof; repairing, victualing, and furnishing provisions of ships and vessels for sea; all cases of bottomry [ship-owner indemnified if the vessel were lost, but paid over a substantial share of the profits if it reached its destination safely], contracts beyond the seas concerning shipping or navigation; charter, parties, contracts for freight; bills of lading; mariners wages; damage of goods on board ships; and damage by one ship to another including by anchors or want of laying buoys. it did not include contracts between merchants. chapter 17 times: 1660-1702 the monarchy was restored and charles ii came to the throne. the episcopacy of the bishops and the book of common prayer were restored. this book retained all its ceremonies, despite opposition by the presbyterians. the confiscated royalist, church, and crown lands were ordered to be restored, and most were. charles ii was presented with the traditional rights of choosing his own privy council, ministers of state, and justices; making foreign policy; controlling the armed forces; and approving statutes. he was also presented with the power to call and dismiss parliament, but later, in 1694, a statute required that parliament be held at least once every three years, to avoid royal schemes of non-parliamentary government. the house of lords was reestablished and there were again bishops in it, though fewer than before about 1/8 instead of about 1/3. there were 160 peers for the next century. the house of commons was elected in the usual way, but without a king's writ. the commons was composed mostly of royalist established church members. its leaders were important members of the king's privy council. the feudal tenures of the crown, such as knights' service, were converted into free socage. they were discharged of homage, reliefs, escuage, and aids. charles relinquished purveyance, wardships, and forfeitures of marriage. in return, parliament granted him a fixed yearly income of 100,000 pounds from excise tax on beer, cider, and tea. several hundreds of dissenter ministers and school teachers were ejected from their positions, but later those who were not baptists were returned by statute of parliament because baptists did not believe in an established church. charles ii was an easygoing and kindly man and hard to ruffle. he had a weariness in the folly of men and a cynical disbelief in human virtue. his wit and great sense of humor softened many a potentially tense situation. his restoration to the throne brought in a time of enjoyment of life in reaction to the puritanism of before. at his succession, the elected parliament was oriented toward royalty and the established church. he was voted an income of 1,200,000 pounds a year. he also sold many of the last crown lands. but he always had great debts, which he described as a "desperate but not serious" situation. this was in part due to his generous maintenance of several successive mistresses and more than about a dozen illegitimate children. his entourage also included physicians, surgeons, a librarian, a poet laureate, chaplains, painters, an historiographer, musicians, a royal composer, and an astronomer. charles even joked on his deathbed that "i am sorry gentlemen, for being such an unconscionable time a-dying." the day of charles ii's restoration and birthday was designated as a day of thanksgiving when all were to participate in prayers and the singing of psalms at some church or other suitable public place. charles initiated the return of sunday afternoon wrestling, archery, music, and dancing. theaters reopened with actresses playing women's parts, an audience only in front of the stage instead of around it, a drop curtain, and painted two-dimensional scenery. actresses were allowed pursuant to royal proclamation so that plays should become "useful and instructive representations of human life" rather than "harmless delights". charles went to plays regularly. actresses were assumed to be mistresses of patrons in return for their jobs, but one fourth were actually chaste women married to actors. comedies were the preferred plays. courtesans were sympathetically and even admirably treated in plays, which mocked all restraints and glorified immorality with the exception of pornography, which was banned. bad actors were hissed off the stage. henry purcell wrote religious music for churches, ceremonial music for the english court, and theater music for english opera. opera made music a vehicle for human emotions. the gentry sang to the lute and danced to string instruments. many owned and played musical instruments. humble people had folksongs and instruments like the pipe and tabor for dancing. singing in parts was popular in town and country. in 1672 john banister started the first regular series of public concerts in his house. there were lovely formal gardens in which to walk, to see fireworks, and to buy the new ice cream. charles did much garden and park planning and let the public enjoy the royal st. james park. he loved hunting too and had the royal forests replenished with deer after poaching during the cromwell era had greatly reduced their numbers. charles ii introduced sailing and yacht racing for pleasure. he also participated in and promoted horse racing. the breeding of thoroughbred horses began with breeding to arab mares. gelding horses were now preferred over stallions. there were trotters, cart horses, and some "fast" race horses. boxing (with no gloves nor ring) was a national sport. ice skating with iron blades was popular. valentine's day was celebrated. italian puppet shows played in london. dress returned to elaborateness. gentlemen wore cavalier-style long wigs with curls, despite the church's dislike of wigs. this could hide the short hair of a former puritan roundhead. in 1666, charles introduced a new mode of inexpensive court dress which was made entirely from english textiles. this gave rise to gentlemen's weskits to below the knee with a coat of the same length and full sleeves. stockings and shoes replaced the long fitted boots. charles set a court tradition of men wearing a scarf tied around the neck. ladies often wore their hair in masses of ringlets with little corkscrew curls on each side of their heads, and later piled their hair up elaborately on their heads. they wore satin or silk dresses fitted at the waist with a pointed bodice, and full skirt. the shoulder line was low and the sleeves full and open at the front with fastenings of jeweled clasps. the only fast colors were reds, blues, purple, and yellow, but not green. they kept their hands warm in muffs. women wore perfume, rouge, and face patches. some women put on a lot of make-up. many men dressed effeminately with rouge, face patches, heavily scented clothing, muffs, and many ribbons of many colors. the facial beauty patches were in shapes such as stars, crescent moons, and hearts; they diverted attention from the common smallpox scars. there were oxford shoes, which laced up the front through eyelets. the members of the house of commons dressed like the gentry and assumed their manners. there was exaggeration in all complimentary and ceremonial language. the gentry were beginning to be thought of as a "squirearchy". they owned about half the land of the country. the population according to class was as follows: number of social ranks, household household households degrees, titles size yearly income in pounds 160 temporal lords 40 3,200 26 spiritual lords 20 1,300 800 baronets 16 880 600 knights 13 650 3,000 esquires 10 450 12,000 gentlemen 8 280 5,000 persons in greater offices and places 8 240 5,000 persons in lesser offices and places 6 120 2,000 eminent merchants and traders by sea 8 400 8,000 lesser merchants and traders by sea 6 198 10,000 persons in the law 7 154 2,000 eminent clergymen 6 72 8,000 lesser clergymen 5 50 40,000 freeholders of the better sort 7 91 120,000 freeholders of the lesser sort 5.5 55 150,000 farmers 5 42.5 15,000 persons in liberal arts and sciences 5 60 50,000 shopkeepers and tradesmen 4.5 45 60,000 artisans and handicrafts 4 38 5,000 naval officers 4 80 4,000 military officers 4 60 50,000 common seamen 3 20 364,000 laboring people and out-servants 3.5 15 400,000 cottagers and paupers 3.25 6.5 35,000 common soldiers 2 14 25,000 vagrants, as gypsies, thieves, beggar as can be seen, agriculture is still the most common occupation. great houses now had a central dining chamber for dining, with sets of suites, usually for couples, around it. each suite had an ante-chamber and/or drawing room, and then a bedchamber, off of which there was a servant's room and a closet [cabinet]. no longer did personal servants bed down in the drawing room or outside their master's door or in a truckle bed at his feet. the servant's room was connected to a back staircase for use by servants. secret guests also used it. the csbinet room was the innermost sanctum for privacy and gave its name to the later cabinet of the government. there were fewer servants and they were of a lower social status than before. they were often sons of merchants, clergymen, and army officers. gentlemen no longer advanced by service to a great man, but instead through grammar school and university education, commerce, the law, or the armed services. this change came about because the state now maintained reasonable law and order. there were more female servants, who were paid less to cook and to clean as well as do laundry and nursing. servants were kept more in the background, preferably out of sight. the elaborate ceremonial ritual with sewer, carver, and cupbearer was gone. a butler replaced the yeomen of the buttery, ewery, and pantry, and footmen began to wait on the table at which the lord, his lady, and other couples sat. servants no longer had meals in the hall, which now had a grand staircase up to the dining chamber. the highest servants, the officers: clerk of the kitchen, clerk of the check [comptroller], head cook, butler, and groom of the chambers, and female housekeeper ate in the gentleman-of the-horse's room, although at a separate table. the kitchen staff ate in the kitchen. the footmen, underbutler, porters, coachmen, grooms, stable-boys, gardeners, maids ate in a servantsâ� room. the steward was no longer the chief household officer, but had a room near the kitchen. the bulk of the servants slept in the basement or subordinate wings of the house. great houses of nobles had more rooms, such as a chapel, library, parlors, dressings rooms, and galleries; there was a variety of architectural floor plans. the structure of a noble household of an earl was as follows: the chief official was the receiver general. he had financial responsibility for the household and prepared accounts for the household and for the tenants' estates. these were checked by an auditor. the receiver general was often the son of a country gentleman and had a salary of 50 pounds raised to 100 pounds with longevity. he had a servant and an assistant. if married, he had a house on the property. there was perhaps an attorney on retainer who were paid for a certain number of hours per week or month. the gentleman of the privy purse kept the accounts of the family and bought them apparel and toiletries. he was in close personal attendance upon the earl. his salary was 20 pounds a year. besides the receiver general and the gentleman of the chamber, the tutor and chaplain had the closest personal contact with the family. the lady had a gentlewoman with a maid servant. the receiver general supervised most of the staff. there was a steward of 40 pounds a year. he supervised a clerk of the kitchen and a house bailiff of 20 pounds a year. the bailiff had responsibility for the produce of the estate, e.g. the gardens, the deer park, and the fish ponds. under the clerk of the kitchen was the cook man and kitchen boys, the latter of whom were clothed and fed, but not paid. the steward also supervised the 4 pound yearly porters, who kept the gates; the watchmen outside; and the head housekeeper, usually a woman of 2 to 6 pounds yearly. she supervised the laundry maid and general maids, who spent much of their time sewing. the steward was also responsible for the wine cellar. a dozen footmen belonged partly to the house and partly to the stables and received 2 to 6 pounds yearly. they waited on the lord and lady in the house and accompanied them in travels and did errands for them. the gentleman of the horse supervised the stables, coach, dogs, kennels, and 16 pound yearly huntsman. boy pages also worked partly in the house and partly in the stables. they were clothed and fed, but not paid. the head gardener received 80 pounds for tending the flowers, vegetables, and fruit trees. he had casual workers as needed to assist him. the steward was also responsible for the london house. here there was a housekeeper, a watchman, and a 40 pound a year gardener, all there permanently. when the lord was there, bargemen were employed for his barge. the salaries for the family estate totaled about 600 pounds a year. sometimes married sons' or daughters' families stayed for months at the family estate; then they would pay for their part of the food. well-to-do people drank imported tea and coffee, sometimes from porcelain ware, and usually after dinner or supper. most tea leaves were brewed first for the family and guests and a second time for the servants; then they were given to the servants' relatives or friends. queen mary encouraged the fashion of collecting chinese porcelain. the rich had red or black and gilt lacquered cabinets and cupboards. oak gave way to walnut, with its variegated surfaces. there were grandfather clocks. some fireplaces now had cast-iron firebacks. stuffing began to be upholstered to woodwork benches. chairs were taller in the back. ladies did needlework to cover them and also made patchwork quilts. cane seats came into fashion. from the spring of 1665 to the end of 1666 there was a great plague, mostly in london. it was the last and worst plague since the black death of 1348. it lasted over a year and about one-third died from it. households with a plague victim were walled up with its residents inside to reduce contagion, and then marked with a red cross. church bells tolling their requiems clanged in ceaseless discord. the mournful cry "bring out your dead" echoed in deserted streets. at night groups of people shoveled the corpses into open graves. to prepare for this revolting task, they often first became drunk out of their senses. people acquired wild beliefs in hope of avoiding the plague. for instance, at one time it was thought that syphilis would prevent it, so maddened hordes stormed the brothels. at another time, it was rumored that the plague could be burned out of the air, and all one day bonfires blazed outside every door and people sweltered in the heat. other localities posted sentries on the road to keep londoners out of their areas to prevent the plague from spreading there. since sneezing was thought to be the first sign of a person getting the plague, it became common to ask god to bless a person who sneezed. in london, statistics were collected on the number of plague victims and their places of death to try to determine the cause of the plague by correlation, a new method. this was a natural sequent to merchant john gaunt's 1662 book "natural and political observations made upon the bills of mortality", which compiled yearly vital statistics from which to analyze, for instance, causes of death due to particular diseases. it reached conclusions such as that fall was the most unhealthy season; females had longer life spans than males; and infant mortality was very high. in 1666 a fire destroyed three-fourths of the city of london. the blazing buildings were so hot that people with leather buckets of water, hand squirts, and manually operated water-pumping machines could not get near them. there was a lot of noise from falling buildings. panic and desperation were widespread. there was a lot of crying out and running about distractedly. people saved some of their possessions by burying them or removing them from the fire's path as they moved to different lodgings. the streets were full of carts piled high with furniture and merchandise. the thames river was thick with heavily laden barges. melting lead from st. paul's church ran down the streets in a stream. the tower of london, upwind of the fire, was saved by blowing up surrounding buildings. eventually the wind abated and the fire was put out. a fire court with royal justices was created to offer settlement terms about property that were free, fair, fast, and final. army tents and supplies, and soup kitchens sustained the citizens in the fields. after the fire, buildings had to be brick or stone rather than wood, except for doors and windows. also, more plaster and tile was used. all roofs had to be of tile or slate, rather than thatch. there was a general use of tile for roofing. about 1714, came slate for roofings. all buildings had to be at least two stories high, with flat facades rather than overhanging upper floors. they had to have wide brick walls around them to avoid the spread of fires. many streets, squares, and alleys were professionally planned, after the example of inigo jones, who had continued his town planning with lincoln's inn field's open square surrounded by houses with iron balconies. another example was leiscester square. main streets had to be wide enough to stop a fire. the street selling that had caused so much congestion was removed to new market places. the massive rebuilding of london ended the monopoly of the building trade claimed by the mason's company. astronomer and geometrician christopher wren designed and built a new st. paul's cathedral and many churches in london, thus becoming england's first architect. he worked up from a square base through all sorts of shapes to a circular double dome on top. the fire put an end to whitehall as a royal residence and st. james palace was used instead. but at least one fire hazard remained: the practice of lighting new fires by taking buckets of hot coals from one room or house to another. this was faster than the several minutes it took to use a tinder box to start a flame, i.e. striking a piece of flint upon a piece of steel making a spark which was dropped onto tinder and then blown upon. matches were invented in this period, but expensive and unsafe. nicholas barbon began fire insurance in the 1670s. if fire broke out on an insured premises, the insurance company's firemen would come with leather buckets and grappling irons, and later small hand pumps. barbon also redeveloped many districts in london, tearing down old buildings without hesitation. he started the system of selling off leases to individual builders, who hoped to recover their building costs by selling their houses before they were completed and before substantial payments on the lease became due. entrepreneurial master-builders subcontracted work to craftsmen and took a large profit or a large loss and debt. aristocrats bought large parcels of land on which they built their own mansions surrounded by lots to be rented to building contractors and speculators like barbon. the houses built on these lots were sold and the underlying land rented. these rentals of land made the mansions self-supporting. barbon built rows of identical townhouses. sometimes houses were built on all the lots around a square, which had gardens reserved for the use of those who lived on the square. most of the new building was beyond the old city walls. marine insurance for storms, shipwreck, piracy, mutiny, and enemy action was also initiated. before the fire, e.g. in tudor times, the writing of risks had been carried on as a sideline by merchants, bankers, and even money lenders in their private offices and was a private transaction between individuals. london was residential and commercial. around the outside were tenements of the poor. from 1520 to 1690, london's population had risen tenfold, while the nation's had only doubled. london went from 2% to 11% of the nation's population. in 1690, london's population was about half a million. after 1690, london's population grew at the same rate as the nation's. the first directory of addresses in london was published in 1677. business began to follow the clock more strictly and many people thought of their watches as a necessity. london coffee houses, which also sold wine, liquors, and meals, became specialty meeting places. they were quieter and cheaper than taverns; for a penny, one could sip a cup of coffee by the fire, read the newspapers, and engage in conversation. merchants, stock jobbers, politician groups, soldiers, doctors and clergymen, scholars, and literary men all had special coffee house meeting places. notices and letters of general interest were posted therein. many merchants, brokers, and underwriters, especially those whose houses had been burned in the fire, conducted their business at their coffee house and used it as their business address. men in marine insurance and shipping met at lloyd's coffeehouse, which was run by edward lloyd who established it for this purpose in 1687. lloyd provided reliable shipping news with a network of correspondents in the principal ports at home and on the continent and circulated a handwritten sheet of lists of vessels and their latest movements at his coffeehouse. the patrons cheered safe arrivals and shared their grief over ships lost. they insured their own risks at one moment and underwrote those of their friends the next. auctions of goods and of ships and ship materials which had been advertised in the newspapers were conducted from a pulpit in the coffeehouse. french wine was consumed less because of heavy taxation and spirits and beer were consumed more. the streets were alive with taverns, coffee houses, eating houses, and hackney coaches past 9 p.m. at night. coffee houses were suppressed by royal proclamation in 1675 because "malicious and scandalous reports" defaming his majesty's government were spread there, which disturbed the peace and quiet of the realm. but this provoked such an uproar that it was reduced to a responsibility of the owner to prevent scandalous papers and libels from being read and hindering any declarations any false and scandalous reports against the government or its ministers. london air was filthy with smoke from coal burning. in 1684 the streets were lit with improved lights which combined oil lamps with lenses and reflectors. groups of householders combined to hire lighting contractors to fulfill their statutory responsibility to hang candles or lights in some part of their houses near the street to light it for passengers until 9:00 p.m., and later to midnight. in 1694 a monopoly was sold to one lighting company. in 1663 a body of paid watchmen was established in london. an office of magistrate was created and filled with tradesmen and craftsmen, who could make a living from the fines and fees. this was to supplement the unpaid justices of the peace. the public was encouraged to assist in crime prevention, such as being witnesses, but most policing was left to the parishes. crowds punished those who transgressed community moral standards, threatened their economic or social interests, or offended their religious or patriotic beliefs. often a crowd would react before the call of "stop thief" or the hue and cry from the local constable. pickpockets would be drenched under a pump. cheats would be beaten up. dishonest shops and brothels would be ransacked or destroyed. the most common targets were promiscuous women and pregnant servants. there were many highway robberies and mob actions in london. mobs in the thousands would turn out against the catholics, especially at times of unemployment and trade depression. working people still saw demonstrations and violence as the best way to achieve their economic goals, since strikes didn't work. for example, the silk workers used street violence to get protective legislation against imports and mechanization in 1675. the manufacture of silk material had been brought to england by french workers driven from france. in 1697, three thousand london silk weavers demonstrated outside the commons and east india house against the importation of raw silks by the east india co., and a couple months later, they attacked a house in the city owned by a gentleman of the company. in 1701, heavy duties were imposed on the import of indian silks and wearing of indian silks was prohibited by statute. sometimes mobs would break open the prisons to release fellow rioters or take action against strike breakers or informers. parish constables elected by their neighbors could not control the mobs and stayed within their parishes. dueling was still prevalent, even though against the law. in london and westminster, it was hard to enforce the requirement that inhabitants keep the street in front of their house clean and store the filth until the daily raker or scavenger came with cart and dung pot. so a commission was made responsible for paving and keeping clean the streets, making and repairing vaults, sewers, drains, and gutters, and removing encroachments. it compensated those with encroachments of over 30 years. it assessed inhabitants of such streets 16d. per square yard from the front of their building to the center of the street. women continued to empty their pails and pans outside their doors and did their washing on stools in the streets. there was a penalty of 5d. for throwing filth in front of one's house, and 20d. for throwing it elsewhere in the streets. scavengers and rakers could lodge their coal ashes, dust, dirt, and other filth in such vacant public places as the commission deemed convenient for accommodating country carts returning otherwise empty after their loads were sold. however, this system did not work because people would not pay their assessments. so there was a return to the former system of requiring citizens to sweep and clean the streets in front of their buildings twice a week and keep the filth until a scavenger or raker came. the penalty for not doing so was 3s.4d., later raised to 10s. any one throwing coal ashes, dust, dirt, rubbish, or dung onto the streets or lanes incurred a fine of 5s. there was a fine of 20s. for hooping or washing any pipes or barrels in any lane or open passage or repairing coaches, sawing wood, or chiseling stones in the streets. pigs kept in or about one's house had to be forfeited. one way that people traveled was to be carried in sedan chairs held up by two horizontal poles with one man at the front ends and another man in back. there were so many sedan chairs and coaches for hire in london that the watermen lost business. all hackney coaches in london or westminster were required to be licensed and marked with their owner's distinctive mark so that complaints could be made. their maximum rate was 10s. for a 12 hour day, and 18d. for the first hour and 12d. for every hour thereafter. licensed coachmen were not allowed to practice any other trade. the coaches paid the commission 5 pounds yearly. hay sold along the road brought 6d. per load, and straw 2d. per load, to the commission. there had to by paid 3d. for every cart load of hay sold at the hay market and 1d. for every cart of straw, to go towards paving and repairing the hay market street. overall, agriculture improved. fields that would have been left fallow were planted with new crops which restored indispensable chemical elements to the soil. at the same time, they supplied winter food for stock. the size and weight of animals for slaughter grew. there was so much stock breeding that it was more economical for a family to buy meat, milk, and eggs, than to maintain its own animals. there was an explosion in the growing of beans, peas, lettuce, asparagus, artichokes, and clover. the demand for food in london and other urban areas made enclosure for crop cultivation even more profitable than for sheep grazing. the government made no more attempts to curtail the enclosure of farm lands. the number of enclosures grew because copyholders were not successful in obtaining the legal security of tenure. but most land was not enclosed. in 1661 in the county of essex, the wages for mowing one acre of grass were 1s.10d.; for reaping, shearing, binding one acre of wheat 4s.; and for threshing a quarter of wheat or rye 1s. wives participated with their husbands in general agricultural chores and did the dairy work including making cheese. every householder kept chickens because egg production was cheap, their market price being only 1s. for a hundred. wives also took care of the gardening work and traditionally kept for their own the cash that came in from garden, dairy, and poultry products. a wife made jellies and preserves when the fruit trees, bushes, and vines were bearing. imported sugar enabled fruit to be preserved as jam in jars sealed with a layer of mutton fat to make them airtight. she was likely to concoct medications from her herbs. meat had to be smoked or salted when there was not enough fodder to keep animals alive through the winter. she saw to it that the soap was boiled and the candles molded. she cooked the daily meals, did the washing, produced cloth for the family's use, and sewed the family's clothing. women had less work and lower pay than men. since most cottages had a spinning wheel, spinning work was readily available to wives. in the 1670s, a female weaver or spinner was paid 2-4d. per day. a domestic servant, who was usually female, was paid 40-80s. a year. men in the trades objected to competition from lower-paid women. aristocratic ladies actively managed their family's household and estates. the only work available to a high middleclass woman who was waiting to get married was to be a governess in another household or a lady-in-waiting to a gentlewoman. children often worked; this was recommended so that they were under the direct supervision of their parents rather than getting into mischief in the village. the mother typically mingled severity with gentleness, but the father did not dare to err on the side of leniency. discipline was by whipping. children were treated as little adults. the lack of a conception of childhood innocence even extended to the practice of adults to tell bawdy jokes in their presence or play with their children's genitals. about 1660, the royal society of london for the promotion of natural knowledge was founded by charles ii, who became its patron. it was formed from discussion groups of the new experimental philosophy. it included the baconians formerly at oxford and cambridge, who were ejected at the restoration, and a group of gresham professors of geometry and astronomy. the royal society met at gresham college. its goal was to compare ideas in mathematics and science and identify specific aims of science. it published scientific reports to make its findings generally known. this was a great improvement over the private correspondence among scientists, which was limited by the use of various languages. charles himself had his own laboratory and dabbled in chemistry and anatomy. similar societies were formed in many places in the world. theologicians warned that scientific research was dangerous. but it's advances improved agriculture, manufactures, medicine, surgery, navigation, naval architecture, gunnery, and engineering. issac newton was a genius, who in his childhood designed and built model windmills, water wheels, water clocks, sundials, and kites. he came from a family which had risen from the yeomen ranks to the gentry. for a few years after graduating from cambridge university in 1665, he secluded himself in the countryside to study. here, using the work of john wallis, he formulated the binomial theorem that expands (a+b) raised to the nth exponent power, where n is an integer. he also worked with numbers that had exponents that were fractions, unending decimals, or negative numbers. certain patterns of numbers, such as the sum of doubling each number in a series as in: 1+2+4+8+...never terminates; the series is infinite. he then developed the notion of a number being the limit of the summation of an infinite converging series of a pattern of numbers, such as the limit of 1+(1/2)+(1/4)+(1/8)...= 2. by considering the state of motion of a mass-point in an infinitely short time under the influence of an external force, he developed rules for finding areas under algebraic curves [integration], such as the hyperbola, and finding tangents to algebraic curves [differentiation], which he recognized as inverse processes. that is, differentiating the integral of a function results in a return to that function. newton discovered that colors arose from the separation, rather than a modification, of white light, that is natural sunlight. he did this using a prism to dissect the white light into its spectrum of constituent colors and then using a prism and lens to recombine the colors to reconstitute white light. the spectrum was the same as that of a rainbow. he determined the angle of refraction of each color by beaming white light through a prism, and then through a hole in a board which isolated one color, to another prism. when he discovered that all colors reflect from a mirror at the same angle, he invented and built the reflecting telescope, which used a parabolic concave mirror and a flat mirror instead of a convex lens, thereby eliminating the distortions and rainbow coloring around the edges that resulted from the refraction of different colors at different angles. he deemed a ray of light to consist of a rapidly moving stream of atomic particles, rather than robert hooke's pulses or christian huygens' waves, because shadows showed a sharp boundary between the light and the absence of light. he reasoned that if light was made up of pulses or waves, it could spread around obstacles or corners as sound seemed to do. he approximated the speed of sound by timing echoes in corridors of various lengths. newton was methodical and combined the inductive and deductive methods of inquiry, first making observations, and then generalizing them into a theory, and finally deducing consequences from the theory which could be tested by observation. he carried mathematization of data from experiments as far as possible. newton theorized that the same gravity force that pulled an apple down from a tree extended out to the moon to hold it in its orbit around the earth. he saw a connection between these movements by imagining a cannon on a mountain shooting a series of cannonballs parallel to the earth's surface. the first shot has only a tiny charge of explosive, and the cannonball barely makes it out of the muzzle before falling to the ground. the second shot is propelled by a larger charge, and follows a parabolic arc as it falls. the next shots, fired with increasingly more propellant, eventually disappear over the horizon as they fall. lastly, with enough gunpowder, a speeding cannonball would completely circle the earth without hitting it. by extrapolating from these ever faster projectiles, he opined that the moon was held in its orbit by the same earth force that operated on the projectiles. he correlated the moon's orbit with the measured acceleration of gravity on the surface of the earth. he put various substances with different masses and weights into the shell of a pendulum and observed that the pendulum had the same period [time for one oscillation] and fell at the same rate as free-falling objects. then he formulated the idea that the ultimate agent of nature was a force acting between bodies rather than a moving body itself. gravity did not act in proportion to the surfaces of bodies, but in proportion to quantity of matter. gravity penetrated to the very center of all bodies without diminution by the body. gravity's force extended to immense distances and decreased in exact proportion to the square of the distance. newton opined that an object moves because of external forces on it rather than by forces internal to the object. these are his three laws of motion. 1) he connected the concepts of force and acceleration with a new concept, that of mass. mass is a quantity intrinsic to an object that determines how it responds to forces, such as the force of gravity. the greater the mass of a body, the stronger the force of gravity on it, and the more difficult it is to get it moving. he found that the acceleration of a body by a force is inversely proportional to its mass, and formulated the equation that force equals mass multiplied by acceleration. so if a force acts on a planet, it produces a change in velocity that is proportional to the force and in the same direction as the force.2) his law of inertia is that any body, persists in its state of rest or of uniform motion in a straight line, unless affected by an outside force. 3) his next law is that when a body a exerts a force on a body b, then b also exerts a force on a which is equal in amount but opposite in direction. this means that forces that operate between different parts of a planet produce no net force upon the whole planet, so that the mass of a planet can be treated as if it is concentrated at a point. his law of gravitation explains how the whole universe is held together. this law holds that every object in the universe attracts every other object with a single gravitational force that is directly proportional to the product of their masses and inversely proportional to the square of the distance between their centers. newton had at first accepted the cartesian system of celestial vortices of aether that swirled the planets and comets around their orbits. he determined that kepler's law that areas were swept out in equal times implied that gravity acts in the direction of a line between the planet and the sun. the gross features of the universe and kepler's observations led to his recognition that the attraction between two bodies decreases inversely in proportion to the square of the distance between them. only one kind of force would satisfy kepler's requirement that the sun was a focus of an ellipse and still be consistent with kepler's law that the square of a planet's period was proportional to the cube of its mean distance from the sun; that was the inverse square law. then he came to accept robert hooke's hypothesis that planets are kept in their orbits by the combination of an attractive power of the sun and of motion in a straight line that was tangential to their orbits. from astronomical data, he calculated this centripetal acceleration of each planet towards the sun to be proportional to the inverse square of its distance from the sun. he also calculated the "centrifugal" accelerations in a straight line. his experiments showed that the centripetal force in a circular orbit was equal to the mass of the body multiplied by the square of its velocity, all divided by the radius of the circular path. he used calculus and differential equations to determine centripetal forces of elliptical orbits, where the distance from the sun, the velocity, and the acceleration were variables. newton showed that his single gravitational force could account for the way free-falling objects descend to the ground, the parabolic trajectory of projectiles, the path of the moon in its orbit around the earth, the course of the tides every twelve hours, the lower densities of the earth's atmosphere at greater heights, the paths of jupiter's moons, the paths of comets, and the elliptical paths of the planets in their orbits around the sun. this determination discredited the previous belief that invisible angels moved the planets. newton proved from his law of gravitation and his three laws of motion the truth of kepler's laws of elliptical planetary motion. newton demonstrated from data collected from the comet of 1680 that comets moved according to his law of gravitation. he showed that the path of a body traveling within the gravitational force of the sun is a circle, an ellipse, a parabola, or a hyperbola. he used the concept of a common center of gravity as a reference point for other motions. the fact that the center of gravity of the solar system was within the body of the sun verified that the sun was indeed at the center of the solar system. newton deduced that the tides were created by the rotation of the earth with bulges of water on the earth's surfaces that were closest and farthest from the moon. the moon "pulled" the water nearest to it with a greater force than average. it "pulled" the water farthest from it with a force weaker than average. these two moving bulges created two tides a day. newton's "principia mathematica philosophiae naturalis", was published in 1687. the established church denounced it as being against the scripture of the bible. newton did not agree with the established church on many points, such as the trinity, and was considered a heretic. he had his own interpretations of the bible and doubted the divinity of jesus. but it was accepted for dissenters like newton to qualify for full civil rights by maintaining an outward conformity and taking the sacrament in the established church once a year. newton was given a royal dispensation from taking holy orders as prescribed by the rules for tenure of fellows of his college at cambridge university. he did believe in a god who created the universe and who had a ubiquitous presence in all space. when catholic king james ii tried to have a catholic monk admitted to the degree of a master of arts at cambridge university without taking the oath of adherence to the established protestant church, so that he could participate in the business of the university, newton was active in the opposition that defeated this attempt. as a result, he was elected to parliament by cambridge. when olaus roemer, a danish astronomer, was applying newton's laws to the paths of the moons of jupiter to make a table of eclipses of jupiter's moons for use in determining one's longitude, he noticed that the eclipses were five hundred seconds ahead of average time at that time of year when the earth and jupiter were on the same side of the sun, and five hundred seconds behind average time six months later, when jupiter was on the other side of the sun. he reasoned that this difference was due to the light from jupiter's moons taking more time to reach the earth when jupiter was farther from the earth, i.e. on the other side of the sun. he concluded that light does not travel instantaneously, but at a certain speed. from the fact that it took 1000 seconds for light to travel the diameter of the earth's orbit, he calculated its speed in 1676. in 1668, christian huygens formulated the law of conservation of momentum [mass multiplied by velocity], which held that when objects collide, they may each change direction, but the sum of all their momenta will remain the same. huygens also recognized the conservation of what was later called "kinetic energy", which is associated with movement. he developed laws of centrifugal force for uniform motion in a circle. he derived the formula for computing the oscillations of a simple pendulum. in 1690, he posited the theory that light consists of a series of waves. it states that all points of a wave front of light in a vacuum may be regarded as new sources of wavelets that expand in every at a rate depending on their velocities. he thought this a better explanation of bending and interference of light than newton's particle theory. in 1661, robert boyle, called the father of modern chemistry, defined an element as a substance that cannot be further decomposed. he distinguished an element from both a mixture, which is easily separable, and a compound, which is not easily separable. he used an air pump he developed and a glass jar to create a confined vacuum space for experiments to find the properties of heat, light, and sound. he noted that burning objects such as candles and coal, when placed in the receiver of his air pump, went out after a time although air was still present. he opined that animals were dependent upon a fresh supply of air to live. he studied the relationship between the volume, density, and pressure of air and gases. he proved by experiment that the volume of a gas at a constant temperature varies in inverse proportion to the pressure applied to the gas. since gas is compressible, he opined that gases must be composed of discrete particles separated by void, and also that basic physical properties were due to motions of particles, or atoms, which was an ancient greek conjecture. this cast doubt on the long-held belief that everything was composed from four basic elements: air, water, fire, and earth. boyle's laboratory at oxford was denounced by the oxford clergy as destroying religion. in 1679, the steam pressure cooker was invented by denis papin from france. he invented the atmospheric engine in 1690. robert hooke helped boyle build his air pump. hooke was thirteen when his father, a minister, died. hooke was a genius with innate mechanical skill and was an able mathematician. he applied a spiral spring to regulate the balance of watches. a lord financed him as a gresham lecturer of geometry for 50 pounds a year. in 1666, he used a pendulum to measure the force of gravity and showed that the center of gravity of the earth and moon is a point describing an ellipse around the sun. in 1667, he explained the twinkling of the stars by irregular atmospheric refractions. he formulated the theory that light is composed of pulses. hooke's law states that the amount an elastic body such as a spring stretches out of shape is in direct proportion to the force acting on it: its tension. he invented the odometer, a wheel to measure distances. he constructed an arithmetical machine. he invented the universal joint, which can move in many angles. his book of drawings of microscopic animals is a classic. he proposed that fossils can be used as a source of information about the earth's history. hooke became rich from his inventions, but this was not known until his death, when thousands of pounds were found in his iron chest. in 1668, wallis postulated the correct theory of impacts of inelastic bodies, based on the principle of conservation of momentum. in 1685, he introduced the first graphical representation of complex numbers. royal astronomer and genius edmond halley, the son of a soap maker, studied tides, magnetism, and the paths of comets and stars. he went on voyages to study the heavens from different positions, thereby laying the foundations of physical geography. he showed that the stars change in position in relation to each other. with newton's help, he calculated the orbit of a comet he saw in 1682 to be elliptical rather than parabolic and then proved it was the same comet that had appeared in 1531 and 1607, indicating it's regularity; it was then named "halley's comet". however, the church of england still embraced the idea that comets and eclipses were evidence of god's wrath. greenwich observatory was built in 1675. halley used a barometer to measure the density of the atmosphere and related its readings to elevations into the atmosphere and to weather. he determined that the cause of the tropical trade winds was the sun warming the tropical air at the equator, causing it to rise and move north as it was replaced by cooler air from the north. this body of air was deflected by the rotation of the earth. he illustrated the tropical winds with the first meteorological map. he made a descent in a diving bell, which was used to try to reach wrecked treasure ships. he studied fossils and perceived them as remnants of living beings that had died long ago, and imagined a succession of living things. halley surveyed the tides and coasts of the british channel for the king in 1701. in 1675, apothecary nicolas lemery divided substances into mineral, vegetable, and animal. he wrote a dictionary of pharmaceuticals. john ray and francis willoughby were friends who traveled together to study plants and animals respectively. john ray started the science of zoology with his edition of francis willoughby's "ornithology" on birds and his own "history of fishes". he also attempted the first scientific classification of animals in his "synopsis of quadrupeds". ray compared anatomies and experimented on movements of plants and the ascent of sap. he knew that fossils were remnants of old animals. ray first suggested the concept of species in classification of animals and plants. he opined that the goodness and wisdom of god was shown not only by the usefulness of animals to man's uses as taught by the church, but also by the adaptation of animals to their own lives and surroundings. the vast array and dispersal of animals found by world explorers all over the world cast doubt on the biblical story of noah putting two of every kind of animal on an ark. the science of botany began with ray's "history of plants" and the researches of robert morrison, who was charles' physician and keeper of his gardens. nicholaus steno, a danish physician, diagrammed six levels of stratification on the earth's surface and demonstrated in 1669 that layers of strata of rock are always deposited with the oldest layers on the bottom and the youngest layers on the top. this began the science of geology. he argued that shifts in the earth's strata caused the formation of mountains. he identified fossils as ancient creatures. the idea that fossils were remnants of dead animals existing before man conflicted with the religious idea that adam's fall began sin and caused death. the idea from fossils that existing species of animals were modifications of predecessor animals conflicted with the religious belief that noah's ark had preserved all the varieties of animals. john aubrey described stonehenge, thus founding prehistoric archaeology. he thought it to be a druid temple. the telescope and compound microscope, which has an objective lens and an eyepiece lens for producing a wide range of magnifications, were further developed. the cellular basis of life was discovered and described by robert hooke. nehemia grew, the son of a grammar school master who became a physician, observed and drew plant anatomy, including leaves, flowers, fruits, seeds, ovules, pollen grains, and stamens. he was the first to observe the existence of plant sexuality. italian marcello malpighi, a physician, used the new compound microscope to study human skin, spleen, kidneys, and liver and also compared the livers of several types of animals. he discovered capillaries linking the arterial and venous circulation in the lungs. dutchman anton van leeuwenhock, a cloth manufacturer who made microscopes to inspect the quality of cloth, turned them to use in understanding the life cycles of mites, lice, and fleas. he correctly described human blood cells. when he found what he described as tiny animals (bacteria, protozoa, and rotifers), he sent clear descriptions of them to the royal society in london as proof against the theory of spontaneous generation, which held that lower forms of life could arise from nonliving matter. this started the science of bacteriology. with the discovery of the egg in the female reproductive system, the status of women was lifted. physician thomas willis, son of a farmer, dissected brains of men and animals to study the anatomical relations of nerves and arteries. excess urine had been associated with a wasting disease. willis identified diabetes mellitus with excess of urine that was sweet. physician thomas sydenham, son of a gentleman, observed epidemic diseases of london over successive years, thus founding epidemiology. he also furthered clinical medicine by emphasizing detailed observations of patients and maintaining accurate records. he wrote a treatise on gout and identified scarlet fever. he introduced a cooling method of treating smallpox. but he still relied on the big three treatments: bloodletting, purging, and sweating. bloodletting was to draw off bad blood so that it could be replaced by a better fluid. another treatment used was cupping, whereby a vacuum was created by heated glass cups to draw blood to the surface of the skin. john locke performed one of the first successful operations draining a kind of abscess of a man's liver. it was common for people who felt ill to take a laxative and rest at home. in 1690, physicians opened the first dispensaries, which gave treatment and medicine together, to take business away from their rivals: the apothecaries. london's apothecaries were released in 1694 from jury service and service as constable, scavenger, or other parish or ward office because it was necessary that they be available to attend the sick at all times. peruvian bark which had quinine as its alkaloid had been introduced as a proven cure for the ague, a fever with chills usually due to malaria, in 1653. the english ceased to believe in holy wells, but went to spas such as bath for treatment of disease. there was more bathing because private homes in towns now had indoor baths. the public baths came into disuse. for childbirth, only rich women were attended by physicians. most physicians used talismen such as the eagle stone at deliveries. caesarian section almost always led to the death of the mother. midwives were licensed by the church and could baptize babies. jane sharp wrote "the midwives book" with anatomical illustrations. women over thirty had fewer children and the last child born was at an earlier age than before. this was in part due to birth control such as coitus-interruptus, long breast-feeding of a current child and/or the taboo against sex if the wife was still breast-feeding. rich women often employed wet-nurses to breastfeed their babies. babies seldom thrived, or even survived, without out a regular supply of breast milk. john locke, an oxford don, physician, and son of an attorney, expressed a view that the monarchy was not based on divine right, but rather on a contractual relationship with the people, who were reasonable, free, and equal by nature. this idea was first adopted by revolutionists and then became accepted as orthodoxy. also, he articulated the right of resistance, the supremacy of legislative assemblies, and the responsibility of rulers to answer to their subjects. he theorized that men turn to forming a civil government when there is a need to protect accumulated property from some unreasonable men. this, along with the protection of life and liberty, was the primary function of government, before royal pleasure, national pride, or foreign conquest. he wrote theories on the interaction of supply, demand, interest rates, rents, coinage, and foreign exchange rates. he believed that interest rates should be the natural ones determined by market forces rather than by the legislature, especially if there was an attempt to lower interest rates below their natural rate, which was not only undesirable but easily circumvented. he thought that attempting to legislate contrary to natural economic laws, e.g. prices, was doomed to failure from unexpected consequences. he agreed with most mercantilists that by maintaining a large inflow of precious metals through consistent export of surpluses in foreign trade would lead to low interest rates, increased trade, increased capital stock, high employment, and high prices, and therefore a healthy economy and enrichment of the nation. locke thought that knowledge comes primarily from experience, i.e. sensation and reflection, rather than from innate ideas placed in the mind by god, so that observation and experimentation are necessary to find truth. he theorized that propositions of truth have probability rather than certainty. probable propositions included opinion, belief, and revelation. his "thoughts on education" was a great book on the formation of character. locke also advocated the use of a large field for inventing labor-saving and economic devices for agriculture. he espoused freedom of thought in "letters on toleration" and wrote "an essay concerning human understanding", which described how the mind functions in learning about the world and which attempted to reconcile science and christianity. he was a great admirer and friend of newton and they shared religious views. he was also a member of the royal society. at oxford and cambridge universities, there were the most enlightened theologians, classicists, orientalists, philologists, mathematicians, chemists, architects, and musicians. there were professors of anglo-saxon, hebrew, and arabic. john locke's influence caused modern philosophy to supercede traditional scholasticism. there were no more disputations to qualify for degrees. some of the students were the sons of noblemen and sat at meals with the heads, tutors, and fellows of the colleges. most students were the sons of landowners, clergymen, professional men, or prosperous men of business. they were known as the gentlemen commoner students. the few poor students were known as servitors and paid for their education by menial work. corporal punishment ceased. instead there were fines, suspension, and expulsion. fellows of colleges had common rooms for drinking and smoking together as they had done in taverns outside college walls. the king had authority to grant licenses in sell or give land in perpetuity, to encourage founding and augmenting colleges and schools. the two universities were vested with the presentation of benefices that had belonged to papists. english nonconformists such as presbyterians were excluded from oxford and cambridge universities, so they were educated at glasgow in scotland. grammar schools were blamed for the past civil war by educating too many people above their station, so ecclesiastical control now stifled them. a few dissenting schools were established. charity was given to schools for children of the poor for placement as apprentices, but not to educate them above their stations. in the 1670s, about 70% of males in london were literate. by 1680, illiteracy was a special characteristic of the poor instead of a characteristic of the vast majority of common people as in 1580. fountain pens came into use. many books written tended to be about the author's experiences, for instance samuel pepys' "diary", gilbert burnet's "history of my own times", john evelyn's lifelong diary with vivid descriptions of striking events of the day, and nonconformist celia fiennes' description of her tour of england on horseback. there were many political biographies. historians did not yet study history as a continuous process, but narrated self-contained stories to instruct by example. william fleetwood wrote about economic history in "chronicon preciogum". george hicks put together a "thesaurus" of the northern languages. thomas hyde wrote on ancient persian religion. john spenser compared jewish rites with those of other semitic people, thus starting comparative religion. richard bentley, william's librarian, wrote a "dissertation" on the ancient greeks. he compared the ancient greek life with modern life. he also confuted atheism on the newtonian system. a translated version of "critical history of old testament" by frenchman richard simon identified the old testament as history instead of divine revelation. john milton wrote "paradise lost", which retells the biblical story of the creation and the fall of adam and eve against the backdrop of satan's rebellion and expulsion from heaven and emphasized god's justice in spite of everything. the poem deals with the puritan struggling against evil and the problem of sin and redemption. it has a cold and severe conception of moral virtue and stoical self-repression in its characters. there is no sympathy with the human condition. reading this book made the english more serious, earnest, and sober in life and conduct and more firm in the love of freedom. john bunyan wrote "pilgrim's progress" in which a tinker takes a journey to find the everlasting city of heaven and on the way meets people who try to harm him. but he derives strength from his adversities. the journey is a metaphor for the christian soul trying to find salvation. it is puritan in its sympathies and has insights into human nature. john dryden wrote on large social, political, and humanistic issues, often by political satire. william congreve wrote plays such as a comedy on manners. william wycherley wrote cynical satires and portrayed folly, affection, and vice. john vanbrugh wrote plays satirizing london high society and social institutions. john toland wrote "christianity and mysterious" on deism. "puss in boots", "red ridinghood", and "cinderella" became available in print. there were many female poets, bookwriters, and playwrights. anne finch, later vicountess conway, wrote the philosophical book: "principle of the most ancient and modern philosophy" to reconcile the new science with christian belief. in it every creature had a body and a spirit. mrs. aphra behn wrote "oroonoko", one of the first novels. basua makin, governess of the little sister of charles ii wrote an essay to revive the education of women, arguing that women's activity in wartime showed that they were fit to be educated. elizabeth elstob, who studied teutonic languages, was one of the founders of women's education. mary astell proposed a college for women. some women painted portraits. there were rigid censorship acts from 1662 to 1695. the first required that no one could print a book without first registering it with the company of stationers of london and having it licensed by appropriate authority: common law books by the lord chancellor or the lord keeper of the great seal, affairs of state and history books by the secretaries of state, heraldry books by the earl marshall or kings of arms garter, university books by the chancellor or vice chancellor of either of the universities, and all others including divinity, physics, and philosophy by the archbishop of canterbury, or bishop of london. books could be imported only into london and not sold until approved by the archbishop of canterbury or bishop of london after being opened and viewed by a scholar appointed by these bishops and a representative of the company of stationers. if heretical, seditious, scandalous, schismatic or otherwise dangerous or offensive, the importer could be punished. no one could print or import copies of any books without consent of the owner with right by letters patent. the penalty for not doing so was to forfeit 6s.9d. for each such book, of which the king would receive one half and the owner one half. printers had to set their own name to the books they printed and also the name of the author or else forfeit such book. only freemen of london who were members of the company of stationers could sell books. the company of stationers had the authority accompanied by a constable to search all houses and shops where they knew or had "probable reason" to suspect books were being printed. they could search houses of persons of other trades only by special warrant. they could examine books found to determine if they were licensed and, if not, to seize them. justices could imprison offenders. the first offense by offending printers was to be punished by suspension from printing for three years, the second offense by permanent disallowance from printing, fine, imprisonment, and corporal punishment not extending to life or limb. this statute was enforced by frequent prosecutions, such as of publishers of pornographic books. the only newspapers to appear between 1660 and 1679 were official government sheets. but in 1695 the requirement to license publications, including newspapers, was abolished, thereby giving some freedom to the press. locke had argued for this freedom, stating "i know not why a man should not have liberty to print whatever he would speak and to be answerable for the one just as he is for the other..." in 1702 the first daily newspaper in the world came into existence in england. the stationer's company monopoly of printing also ended in 1695. printing was not regulated and no longer criminal just because it was unauthorized. printing could now be done in other places than london, york, oxford, and cambridge. the rich got richer and the poor got poorer. many successful merchants and manufacturers bought landed estates and established a line of country squires or baronets or even peers. the fashion started in the nobility and the richest mercantile families that their wives should become ladies of leisure. for workers though, there was constant underemployment. in periods of economic crisis industrial workers lost their jobs. much work was seasonal. anyone who could work most of the time was fortunate. laboring and outservants, who comprised one fourth of the population, and cottagers and paupers, who comprised another fourth of the population, had to spend more than they earned. the poor rate collected from the parishes for the cottagers and paupers was 3d. per week. there was an agricultural depression that was deepest in the 1680s after the collapse of a boom. it was the only bad depression experienced in peace time. there was famine in 1698. any person receiving relief from any parish and his family members cohabiting with him was required to wear a badge with a "p" which identified his parish. this was to differentiate them from idle, sturdy, and disorderly beggars who were not entitled to relief. there were more poor people and, despite the poor laws, many became rogues or vagabonds or starved to death. many went from parish to parish to build cottages and consumed all the wood there and then went to another parish. so the parishes were allowed by statute to remove any person coming to settle in any tenement under the value of ten pounds who was likely to be chargeable to it. they were then removed to the last parish were they had resided for at least forty days. excepted were people temporarily moving to another parish to work at harvest time. the overall effect was to decrease the mobility of people. but a later statute permitted greater movement of poor people by allowing those who were poor for want of work to go to another parish where labor was wanted. they had to bring a certificate of their present parish membership to the new parish, where they could settle if they rented a tenement worth ten pounds a year or served in a parish office. later, settlement had to be given to inhabitants paying its parish's rates, and unmarried inhabitants hired for one year, and apprentices bound by indenture. but parishes were displeased with the requirement to give settlements to these people because they feared they would become poor and need parish assistance, thereby increasing the rates to be paid. parish poor houses were converted into spinning schools to obtain an income. parishes of large towns were combined to set up large workhouses, where the poor could be set to unskilled manufacture, but the managers lacked the character and education to make them work. because prisoners often died before trial and the poor prisoners became instructed in the practice of thievery in prison, they were set to work on materials provided to them at public expense. no parish was rated at more than 6d. per week for such. the president and governors of corporations oversaw rogues, vagrants, sturdy beggars, and idle or disorderly persons working in corporations or workhouses. assessments were made for building and repairing gaols in order to maintain the health and safe custody of the prisoners. also, gaol fever, a virulent form of typhus, was so prevalent in the large prisons for criminals and debtors that it frequently spread through the adjacent towns. during some assizes, it killed sheriffs, lawyers, and justices. in 1692, london lands were taxed for the relief of orphans. churchwardens could seize the goods and chattels of putative fathers and mothers deserting bastard children. from 1691 to 1740, societies for the reformation of manners prosecuted poor people for moral offenses. all hackney coaches and stage coaches in all the realm became required to be licensed. the turnpike system came into use. tolls were paid for road upkeep and repair by private companies. the local parishes ceased to have this responsibility. john ogilby wrote the first road book based on actual surveys of the roads. stage coaches cost a shilling for every five miles and went 40-50 miles a day. the trip from london to oxford was twelve hours. the company of coach and coach harness makers was founded with the consent of the king. the body of a coach hung from the frame by leather braces. one axle pivoted for turns. plate glass was used in the windows. rivers improved so that most places were no more distant from navigable waters than a long day's haul on land. the several post offices were put under the authority of one postmaster general appointed by the king for the purpose of speed and safety of dispatches, which were carried by horseback. one sheet letter going less than 80 miles cost 2d., and more than 80 miles, 4d. when the army was disbanded after the restoration, its officers and soldiers were allowed return to their trades and their apprenticeships without serving the usual seven years. parishes were required to provide for poor and maimed officers and soldiers who served charles i or charles ii. the royal hospital founded by charles as a home for veteran soldiers opened in 1692. greenwich palace was converted to a hospital for seamen and their widows and children to encourage men to become seamen: mariner, seaman, waterman, fisherman, lighterman, bargeman, keelman, or seafaring man in the king's navy. also, children of disabled seamen were to be educated at the expense of the hospital. charles retained one regiment from which he started a small standing army, which slowly increased in size ever after. the army was primarily mercenary, as it had been in medieval times, with officers buying their commissions. colonels were the proprietors of their regiments and captains were the proprietors of their companies. the soldiers were ill mannered, swearing and cursing and stealing, sometimes from peoples' homes, and intimidating people with their swords. the bayonet was invented to attach onto a gun, which were muzzle-loading with a match lock. so pikemen with their long spears became obsolete. hand grenades and small explosive bombs came into use about 1670. explosives were also used in mines. mines for coal became deeper as coal replaced the use of increasingly expensive wood charcoal for brewing and for brick, glass, and china manufacture. flooding of coal, tin and copper mines became a problem. in 1698, thomas savery invented the miner's friend, a practical atmospheric steam engine without a piston. there was resort to many devices to fund wars. the land tax was still the primary tax. the customs and excise taxes were often extended to more goods and wares. sometimes there were duties imposed on marriages, births, and deaths. also, hawkers, peddlers, and other trading persons going from town to town to other men's houses on foot or on horse carrying wares had to buy a license. there were also loans from privileged companies such as the bank of england, east india co., and the south sea co. commissioners were appointed to take and state the account of all money in the public revenue. this discouraged the prevalent corruption of government officials and thereby the people were encouraged to pay their taxes. the goldsmiths loaned money to the king and to private persons and to the exchequer. receipts from goldsmiths for storage in strong boxes had become a de facto paper currency. but when the goldsmiths had no more money to lend, the bank of england was founded in 1694 under whig auspices to provide money for war. it was the first institution to issue notes in excess of its total deposits. however, it was not allowed to lend money to the crown without the consent of parliament. it was incorporated as the first english joint-stock bank and had about 1,300 shareholders. these original subscribers were individuals from london from many walks of life, including well-to-do tradesmen and about 12% of whom were women: wives, widows, or spinsters. not many corporations were original subscribers. holders of at least 500 pounds could vote, of 2000 pounds could be directors, and of 4000 pounds could be governor. the bank issued notes payable to bearer and discounted bills, but these were not legal tender. it lent at 8% to the crown and occasionally to corporations. money was also borrowed by offering annuities on single lives. this was the first time the government borrowed directly from the public on a longterm basis. in 1695 there was inflation due to over issue by the bank because of inexperience, pressure from government, and the bank's greed for business. after a dividend of 5% in 1695, the next year there was no dividend and so the bank stock price fell. in 1696, five pound and ten pound short term bonds were sold to the public. also in that year was the first run on the bank. this occurred two days after clipped money lost currency; people wanted the new recoined money, but the mint had not supplied the bank with sufficient supplies. interest instead of cash was given for notes. cash was short for months. the bank's credit was much shaken. it was then given a monopoly so that its notes would not have competition. thereafter, its dividends were good about 12% per year. because of its monopoly, its dividends were about 3% above the current going rate of interest. about this time, exchequer bills, with interest, were started by the exchequer and circulated by the bank of england. they were frequently endorsed many times by successive holders. the bank simply took over from the goldsmiths its main everyday business of deposit, with a running cash note [cashier's note, specie note, cash note], which was payable on demand and normally did not bear interest; and a drawn note [precursor to the check, but not on special paper]. the bank gradually convinced many of its clients to use its "check" [cheque] paper when drawing. the check paper was unique to the bank and embellished with distinctive scroll work to serve as an obstacle to fraud. over time the running cash note tended to be for round sums of at least twenty pounds and multiples of five pounds. the bank of england had a monopoly on issuing notes in the london area. country banks arose and issued bearer notes payable on demand and interest-bearing notes in their areas. the bank of england gave to its depositors the service of paying annually to a designee without further order. a decision of the common law courts held that bills of exchange (written orders to pay a given a sum on a given date) were transferable to other people by successive endorsements. so long distance payments no longer had to be made in coin, with all the dangers of highway robbery. the financial revolution of the 1690s meant that the merchant elite could invest in government bonds or company bonds at 5-6%, or london leases at 10%, as opposed to income from landed estates, which was under 3%. shareholders were no longer personally liable for company losses. interest on loans was no longer considered sinful as long as it was not oppressive. the greater ability to borrow spurred the growth of capitalism. all brokers and stock jobbers in london and westminster of bank stock, bank bills, shares and interests in joint stock must be licensed by the mayor, which shall necessitate their taking an oath to exercise their office without fraud or collusion to the best of his skill and knowledge as of 1697. this is to avoid the collusion of fixing values to their own advantage. compilations of tables of mortality originated the science of life-statistics. this made life insurance possible. but it was administered by ad hoc offices rather than companies and was not reliable in making payments. william petty made a statistical study of economics and determined that the basic values of an economy derive not from its store of treasure, but from its capacity for production. trade was studied empirically by statistics by new offices such as the inspector general of imports and exports. charles instituted a hearth tax of 2s. per year in 1662, with constables and officers authorized to verify the number of hearths and stoves in houses. it was repealed in 1688 because it could not be enforced except by exposing every man's house to be entered and searched at pleasure by persons unknown to the people, which was oppressive and a badge of slavery. by bribes, charles built up a body of support in parliament which could be relied upon for a majority. they came to be called "tories" by their opponents. "tory" had been a term of abuse for irish catholic bandits. the tory and whig groups were known by their disagreement over the authoritarianism of the crown. the tories were sympathetic to the doctrine of divine right and favored a doctrinally high church. the tories represented landed property and the established church, and usually wore blue in contrast to the purple of royalty. many royalists became tories. the whigs refused to accept the sacrosanct character of the monarchy. the whigs opined that government depended upon consent of the people and that the people had a right of resistance. they subordinated the crown to parliament. the whigs represented the dissenters and the mercantile classes, and often wore red. many former puritans became whigs. "whig" had been a term of abuse for scots presbyterian rebels and horse thieves. the gout and venereal disease were common among political leaders. a primitive condom just introduced to the aristocracy from france helped deter syphilis, but was uncomfortable and unreliable. under charles ii, the treasury as a supreme financial body separated from the exchequer as a depository of revenue. a gold guinea coin was issued. from 1690, government policy was controlled by specific appropriations. money bills had to originate in the commons, and could not be amended by the house of lords. boards became independent of the king's privy council and answerable to the secretary of state. in the 1680s, charles compelled some of the livery companies in london to give up their charters to him and he called in many corporation charters of boroughs whenever some light excuse could be found to justify it. this was done by the use of the writ of quo warranto [by what authority] before a court. in london he had the tory mayor revive an ancient custom of selecting a sheriff by drinking to him at the annual feast. two tory sheriffs were installed into office. all these actions gave the king a voice in selection of the officers of london and boroughs, since royal commissioners would then determine who the officers would be. this was to assure london's representation in parliament by crown loyalists as london had been whig. it also allowed influenced selection of sympathetic jurors. criminal seditious libel was brought into the common law courts in 1664, when benjamin keach was tried for writing a book containing contradictions of the doctrine of the established church. he wrote against infant baptism and asserted that laymen might preach the gospel. the justice intimidated the jury to find him guilty. he was sentenced to be fined, to spend two hours in the pillory in two successive weeks, and his book to be burned before his face. he was to be imprisoned until he found sureties for his good behavior and renunciation of his doctrine and for his future appearance in court. juries were loath to find anyone guilty of seditious libel. james ii succeeded charles ii to the throne and fostered roman catholicism by appointments and by attempting to suspend laws unfavorable to catholics. he commanded all bishops to read in the churches his declaration of indulgence exempting both catholic and protestant dissenters from all penal statutes based on religion. seven bishops refused to obey and jointly petitioned him, stating that his action was illegal according to parliament. he prosecuted them for seditious libel in the petition. the jury found them not guilty. james discharged the two justices of the five who had rejected the seditious libel doctrine which had been created by the star chamber court. this roused the whigs and tories in turn to discharge him by joining in inviting protestants william of orange and mary to take the throne in his place. james was effectively chased out of england by william's advancing army in the glorious revolution of 1688-9, which took away the powers of final authority from the king, but without transferring them to any other body. a "bill of rights" stated that 1. the king may not suspend laws or dispense with them without consent of parliament. 2. the establishment of a court of commissioners and like bodies for ecclesiastical causes is illegal. 3. the king may not levy money or extend an authorized levy without consent of parliament. 4. subjects have a right to petition the king without prosecution. 5. the king may not raise or keep a standing army within the country in time of peace without the consent of parliament. 6. protestants may have arms for their defense as allowed by law. 7. the elections of members of parliament should be free. 8. the freedom of speech or debates or proceedings in parliament should not be impeached or questioned in any court or place outside of parliament. 9. excessive bail should not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted (so no more men were whipped to death). 10. jury selection should not be tampered with, and jurors who try men for high treason should be freeholders. 11. all grants and promises of fines and forfeiture of particular persons, before conviction, are illegal and void. 12. parliament should be held frequently for redress of grievances and for the amending, strengthening, and preserving of the laws. 13. all protestants may freely exercise their religion and the king will maintain the protestant religion and the law and liberty of the realm. the right of the peoples' representatives to select and depose the king and to change the order of succession was established. there was no divine right or hereditary right to the crown. an english monarch was created by an act of parliament. the king still called and dissolved parliaments, except that parliament continued for six months after the death of a king. from 1689, parliament sat every year. freedom of speech for members of parliament was established by a resolution overturning a king's bench felony conviction of sir john elliot. by the act of settlement of 1701, no officer or pensioner of the king could be a member of parliament. all resolutions by the privy council had to be signed by the members consenting to them. no one born outside the realm could be a member of the privy council or of parliament, or could have any civil or military office or place of trust, or any grants of land or tenements from the king. justices served during good behavior instead of at the pleasure of the king. after the glorious revolution, tories tended to accept of the whig principles of limited constitutional monarchy instead of rule by divine right. under william and mary, the ministers were first chosen by them but could be impeached by the commons and then removed by the parliament. the commons removed anyone who disagreed with them as soon as he made a mistake. but the king could pardon anyone convicted by parliamentary bill of attainder. this was inconsistent, so no one was allowed to plead pardon by the king in an impeachment by the commons. thus parliament gained control of who would be ministers. the glorious revolution favored the capitalists and the commercial magnates even though it had been started by the landed families, with whom they now intermarried. there were companies in the fishing, silk, baize [a coarse wool], sugar, rope, paper, iron, hardware, cutlery, gunpowder, saw milling, and pottery trades. these industries for manufacturing were organized on capitalist lines rather than being subject to guilds. that is, production was controlled by men with money and the means of manufacture. the largest pottery workshops employed about six men. one man shaped the pots, another made the handles and put them on, while the others did the decoration, the glazing, and the firing. new companies could be formed without royal or parliamentary consent. regulated companies declined. there were no more commercial monopolies. the merchant adventurers lost their last monopoly privileges and their entrance fees were abolished. their method of limiting the volume of their exports of english cloth to germany to keep up prices was obsolete. now they tried to capture the market by selling cheap. there were more joint-stock companies and on a larger scale. they also no longer restricted output to keep prices high, but geared to export many inexpensive goods. drinking of gin, which had first been made by a flemish physician, became popular under king william, who was dutch. the year of his accession, the gin monopoly ended. from the mid-1500s to 1700, coal production increased fourteen times. sir ambrose crowley, an iron maker with coal works, established disability and medical benefits and pensions for his workers. the capitalist organization of the mining, glass manufacture, salt, soap, wire and other monopolized industries was made possible only by government support. salt and glass manufacture expanded. glass drinking vessels were in common use. mirrors of blown plate glass were manufactured in england. in 1670, vauxhall glass works were opened with workmen brought from venice to blow their fine glass and make mirrors. some plate glass by casting was imported. plate glass was a large and strong glass piece, which was formed by the liquid glass being poured on a table. this glass was not distorted, so mirrors could be made perfectly reflective. then plate glass for coaches, mirrors, and windows became manufactured in england; this new industry was organized on capitalist lines. the domestic or "putting out" system came into use. in this system, the worker usually owned his own machinery and the capitalist owned the material, which he put out to the worker at home. the merchant manufacturer bought raw wool and had it carded, spun, woven, fulled, and dressed at his own expense. some farmers became spinners in the winter when outside work was impossible. the manufacture of nails was also done by this system. accordingly, the guilds and municipal corporations in towns ceased to control the recruiting, conditions of work, and pay of industries. only a quarter of 200 towns had any organized guilds at all. the growing town of birmingham was not a chartered borough, so never was encumbered with guild regulations. overall, the guild and apprentice regulations were effectively enforced only in agriculture work. artisans became known as tradesmen. work was usually irregular, some seasonal. in bad years, when a worker had to borrow money, he used work tools, such as his loom, as security. in this way, one's work tools often became the property of a merchant. some merchant clothiers also owned a fulling mill and a shop where the cloth was sold. the capitalists first became owners of the materials, then of the implements, and then of the work places. but production was still confined to the known wants of its habitual market. men used to working at home were generally not inclined to go to work in a factory. so there was an assortment of unskilled factory labor, such as country people driven from their villages by the growth of large estates, disbanded soldiers, and paupers. they had to be taught, trained, and above all disciplined. smiths used trip hammers powered by watermills which turned axles with cams on them. they made iron gates, fences, balconies, and staircases with hammer, anvil, and chisel. cast iron was made by running liquefied metal into molds. this was harder but more brittle than the tough but malleable wrought iron. tinkers went from house to house to repair metal items such as pots and pans. the east india company had about half the trade of the nation. its shares were frequently bought and sold. it responded to anger over its semi-monopoly status by granting liberty to all english subjects below the age of forty to live in its indian settlements and to trade practically everywhere. bombay, india became subject to the east india company. charters gave the east india company the right to coin money, to exercise jurisdiction over english subjects, to levy taxes, to build and command fortresses, to command english and indian troops, to make peace and war, and to enter into alliances with indian rulers. the company always paid high dividends and the market price of its shares generally rose. 100 pound stock was worth 130 pounds in 1669, 245 pounds in 1677, 280 pounds in 1681, 360 and even up to 500 pounds in 1683, and then fell to 190 pounds in 1692. in 1693 a new charter for the company included loss of monopoly status by resolution of the commons. with this resolution, parliament assumed the right of regulating commerce, now no longer the king's province. thereafter the commons regulated trade with india and determined who could participate in trade there. political issues developed, which initiated corruption at elections by entertainment and bribes to candidates, which were later proscribed. the trade opened up to many more traders and investors. ordinary investors came to include women and quakers. the stock exchange was incorporated about 1694. exports included grain, silk, metal wares, foodstuffs, lead, and tin. cloth and manufactures were exported to america. dyeing and dressing of cloth became the norm and undressed cloth exports fell sharply. imports included linen; flax; hemp; timber; iron; raw, thrown, and woven silk; wine; brandy; fruit; coffee; chocolate, served as a drink or used in cooking; cauliflower; and oil. from america came molasses, sugar, tobacco, and dyes. sugar was in great demand for tea, coffee, and chocolate. the east india company imported calico, silk, pepper, spices, china tea, potions, and saltpeter. tonnage of english shipping doubled by 1688 exports and imports increased 50% by 1700. when there was a surplus of grain, it was exported. about 1696, the king set up a board of trade of eight paid members and great officers of state, who nominally belonged to it, and a staff. this was to achieve a favorable balance of trade. for instance, it imposed tariffs to protect internal markets and put restraints on imports of goods producible in the country, e.g. live cattle, dairy products, and woolen goods. it also restricted the export of raw wool. england led the way in protectionist measures. parliament required an oath of allegiance to the new sovereigns william and mary from all those in public functions, including the clergy. by extending this rule to the clergy, parliament asserted a supremacy of parliament over the church. it also asserted a supremacy over the king by requiring all monarchs to take a coronation oath promising to govern according to the statutes, laws, and customs of parliament, to make judgments with law and justice in mercy, and to maintain the protestant religion established by law. england competed with other nations for land in the new world. carolina, named for charles ii, was colonized for commerce in 1663. the episcopal church, an analogue of the church of england, was established there by law. the whole coast became english after war with the netherlands gave new york, named for charles ii's brother the duke of york, and new jersey to england in 1667. presbyterians and baptists fled from religious tests and persecutions in england to colonize new jersey. for free passage to the english colonies, people became indentured servants, agreeing to serve the master of the ship or his assigns with a certain kind of labor for a term of a few years according to a written contract made before departure. also, various statutes made transportation to any part of america available to any person who would pay for his transportation, for a term of years, usually seven, as a new possible penalty for offenses. in 1636, harvard college was founded in new england to advance literature, arts, and sciences, as well as to train ministers. some american colonists sent their sons to be educated at the inns of court in london. in 1682, quaker william penn, son of an admiral, founded the colony of pennsylvania for quakers in a "holy experiment" in political and religious freedom. the king had granted proprietary rights to this land to him to discharge a crown debt to his father. when penn refused to take off his hat before king charles and asked why charles took off his own, charles, unruffled, replied that "it's the custom of this place that only one man should remain uncovered at a time". the pennsylvania charter of 1701 went beyond magna carta and england's law in guaranteeing right to counsel and giving a right to defendants to summon witnesses in all criminal cases. it gave penn absolute authority and he established liberty of conscience, i.e.freedom of religion, and freedom from arbitrary arrest. in 1751, some quakers founded a small hospital in pennsylvania as an asylum for the insane, where they would be treated humanely. proprietary colonies, in which an individual or syndicate held under the crown a sort of feudal overlordship, were founded in america: namely, virginia, maryland, carolina, new york and new jersey in 1663, and pennsylvania and delaware in 1682. new hampshire was made a royal province in 1680 to cut off the expansion of massachusetts, which had been avoiding the trade laws. these colonies were distinguished from the corporate colonies of massachusetts, plymouth, connecticut, and rhode island, which made their own arrangements for internal government without a royal executive. charles persuaded the chancery court to declare the charter of massachusetts void; it was given a new charter in 1691 which made it a royal province. new york was made a royal province in 1691. maryland's proprietor gave way to a royal governor in 1692. soon all colonies except rhode island, connecticut, pennsylvania were royal provinces, with governors nominated by the crown. this bringing of union to the colonies was done for maintenance of order, to coordinate defense, and to enforce trade laws. in 1670, the hudson's bay company was incorporated to engage in fur trade with indian trappers in the hudson bay and to find a northwest passage to china. in 1701 the founding of the "society for the propagation of the gospel in foreign parts" by the church of england created many missionaries in the colonies, where they called their churches "episcopalian". increase mather and his son cotton mather were puritan ministers in colonial boston. increase was for a time the president of harvard college and participated in obtaining the new charter of colonial massachusetts of 1691. he and his son tried to maintain the principles of the puritan founders of massachusetts, which included the theories of diabolical possession and witchcraft. but the thought of presbyterians, anglicans, and baptists became influential also. in 1692 in the small town of salem, massachusetts, some hysterical girls showing strange spasms and sounds charged they had been bewitched by certain other residents. victims were deceived, flogged, or tortured into forced confessions and then excommunicated from the church. they were then hanged and their property confiscated. one man endured being pressed to death for refusal to plead so that his property would be inherited by his family rather than confiscated due to being convicted. eventually, some prominent citizens including judges were accused. then the more thoughtful people began to doubt the whole phenomenon and admitted error. the excommunications were revoked. cotton mather came to accept newton's science and advocated inoculation. he encouraged puritanism into a simpler piety and charity. this influenced american protestantism toward a generalized concern with good works, morality, and social leadership. the law treason to the king is to compass, imagine, or intend death or any bodily harm tending to death, or maiming or wounding, or imprisonment, or restraint as well as trying to depose him or levy war against him. also included is printing, writing, preaching, or malicious speaking. traitors shall suffer death and forfeiture as in high treason. the fine for having, buying, or selling clipped coins is 500 pounds, one-half going to the informer, and one-half going to the king. the offender shall also be branded in the right cheek with the letter "r". he shall be imprisoned until he pays the 500 pounds. no hammered coins are lawful. anyone except a smith in the king's mint making tools or presses or other machines that can make counterfeit coins or having such which were stolen from the mint shall be guilty of high treason. any malicious and willful burning or destroying of stacks of hay, grain, or barns, or killing any horses, sheep, or cattle at nighttime shall be felony and punished by transportation to the american colonies for seven years. any person apprehending a thief or robber on the highway will be rewarded 40 pounds from the local sheriff, to discourage the many robberies and murders which have made travel dangerous. also, executors of persons murdered while trying to apprehend a robber shall have the reward. anyone killing, hurting, or taking away deer from any forest or park or other ground without consent of the owner or custodian shall pay a 20 pound fine. this was later increased to 20 pounds for hunting deer and 30 pounds for wounding or killing deer, with the pillory for one hour on market day and gaol for a year without bail for those who couldn't pay. any person privately and feloniously stealing any goods, including horses, by day or night, in any shop, warehouse, coach stable, or stable, whether there is a break-in or not, and whether or not the owner is present, or anyone assisting or hiring such person may not have benefit of clergy. any person who apprehends and prosecutes such person is excused from having to serve in parish and ward offices. an offender being out of prison who informs against two other offenders who are convicted is to be pardoned. any person convicted of theft or larceny and having benefit of clergy is to be burnt in the cheek nearest the nose instead of on the hand. when a bill of exchange drawn to at least five pounds is not paid on demand at the time it is made payable, the person who accepted it may make a protest in writing before a notary public, which shall be served on the maker of such bill, who must pay it and all interest and charges from the date of the protest. but if a bill of exchange is lost or miscarried, another shall be given in its place. no one may take more than 6 pounds in interest for a 100 pound loan. persons seeking election to parliament may not give or promise money, meat, drink, entertainment, present or gift to any elector. because the gaols were full of people in debt due to the late unhappy times such as the london fire, all prisoners for debt were released upon taking an oath that they had no property over ten pounds nor had disposed or conveyed property to defraud creditors. creditors not wanting them released had to contribute to their maintenance in gaol. any sale of land or lease or estate of freehold or copyhold shall be in writing and signed. an interest in land given orally shall have only the force of estates at will. all contracts for sale of goods or merchandise for the price of at least 10 pounds shall be in writing and signed by the parties or shall be accompanied by part payment or partial acceptance of the goods. this is to deter fraud. this statute caused many small freeholders, including yeomen, who paid rent by custom to be dispossessed. mortgagees can hold the land of any mortgagor who borrows money upon security of the land or obtains another mortgage without prior notice to the initial mortgagee. the mortgagor has six months to pay off the mortgage and all interest and charges or vacate the land and lose his equity therein. but a widow's dower will not be affected if she did not join with her husband in the mortgage. if rent is not paid in a reasonable time, the renter's goods and grain may not only be distrained, but sold. one coparcener of a joint tenancy or tenancy in common may have a court partition the property without the presence of other coparceners, because such coparceners are often difficult to find. this is to avoid wasting of land lying uncultivated and unmanured. after the intestate death of a father of any sons or daughters without wives or children of their own in the life time of their mothers, the mother and every brother and sister shall share equally except the customs of london and york shall not be affected. administrators have to make an inventory. they have to account on request by an interested person. they must be bonded by two sureties. executors and administrators of estates of deceased persons must pay the debts of the deceased person rather than waste or convert the goods and chattels to their own use. creditors may recover their debts from heirs or devisees of the will of a debtor. men gone beyond the sea who could not be accounted for were deemed dead after seven years, so their life estates could be terminated. whereas lawful games are not to be used as constant callings for a livelihood, and young people are deceived and debauched and their money taken, anyone "winning" money by deceitful or fraudulent gambling shall forfeit three times his "winnings". the making or selling of fireworks is forbidden or else forfeit 5 pounds. firing or throwing such from one's house onto or across the street is a common nuisance with a penalty of 20s. this is to avoid the loss of life and of eyes. no more than 20 people may petition the king nor more than 10 people may assemble to present a petition to the king, because more has been tumultuous and disorderly. anyone may without fee set up a hemp business including breaking, hatchelling [separating the coarse part and broken pieces of the stalk from the fine, fibrous parts by drawing the material through long iron teeth set in a board], and dressing it; or a flax business, including making and whitening thread, spinning, weaving, making, whitening, or bleaching hemp or flax cloth; making twine or nets for fishing or treating cordage for tapestry or hangings, because the daily importation of such has in effect taken the work from the poor and unemployed of england. no sheep, wool, woolfells, shearlings, yarn, fuller's earth, or fulling clay may be exported as has secretly been done, so that the poor of the realm may have work. fishermen may sell their fish to others than fishmongers at billingsgate fish market because the fishmongers have forestalled the market and set their own prices. the buyers of such fish may resell them in any other london market by retail, except than only fishmongers may sell in shops or houses. no tanned or untanned skin or hide of any ox, steer, bull, cow, or calf may be exported because the price of leather has risen excessively and leather workers can't get enough raw material to carry on their trade and because poor people cannot afford leather items they need. the newly incorporated company of silk throwers (drew the silk off the cocoon) employs many of the poor, but others practice the trade, so an apprenticeship of seven years is required to practice the trade in the realm. winders or doublers who purloin or embezzle and sell silk from the thrower who employs him and the buyer of such silk shall make such recompense as ordered by a justice of the peace or be whipped or set in the stocks for the first offense. the regulation of the silk throwers company restricting the number of spindles to be worked at one time is voided because it has taken livelihoods away and caused foreign thrown silk [silk twisted from cocoons into thread] to be imported. buttons on garments must be made of silk, mohair, gimp, and thread and by needle to keep employed the many throwers, twisters, spinners, winders, and dyers preparing the materials for these buttons. no button may be made of cloth or wood. when a bill of exchange drawn to at least five pounds is not paid on demand at the time it is made payable, the person who accepted it may make a protest in writing before a notary public, which shall be served on the maker of such bill, who must pay it and all interest and charges from the date of the protest. but if a bill of exchange is lost or miscarried, another shall be given in its place. no one may take more than 6 pounds in interest for a 100 pound loan. persons seeking election to parliament may not give or promise money, meat, drink, entertainment, present or gift to any elector. because the gaols were full of people in debt due to the late unhappy times such as the london fire, all prisoners for debt were released upon taking an oath that they had no property over ten pounds nor had disposed or conveyed property to defraud creditors. creditors not wanting them released had to contribute to their maintenance in gaol. retailers of wine may not add to imported wines cider, honey, sugar, molasses, lime, raisin juice, or herbs. butter sold must be of one sort and not contain bad butter mixed in with good butter. butter pots must bear the name or mark of their potter. salt may be sold only by weight, to avoid deceit by retailers and wrong to buyers. no tobacco maybe grown in england because the colonies would be discouraged from growing it and the king would not receive customs from it. no goods are to be imported to or exported from america, asia, or africa except in english ships, with masters and 3/4 of the mariners englishmen. no manufacture of europe may be imported into any colony or territory except shipped from england in english ships manned by englishmen. as of 1672, if bond is not given for colonial exports of sugar, ginger, tobacco, cotton, indigo, cacao nuts, or fustic [tree that yields a yellow dye] and other dyewoods going to england, a duty must be paid. as of 1696, no colonial goods are to be imported or exported or carried from one colony to another, except in ships owned and built in england, ireland, or the colonies with the masters and three fourths of the mariners from such places. these navigation acts were strictly enforced. only persons with lands and tenements or estate worth over 100 pounds per year or having a lease of at least 99 years worth 150 pounds per year and owners and keepers of forests or parks may have any guns, bows, greyhounds, hunting dogs such as setting dogs, snares, or other hunting equipment. these persons may kill hare, pheasants, partridges, and other game. gamekeepers authorized by justices of the peace may search houses and outhouses and seize unlawful hunting equipment. if hunting equipment or game is found in a house without good account to the justices of the peace, they shall impose a fine of 5s. to 20s., one-half going to the informer and one-half going to the poor of the parish. army officers or soldiers who desert or mutiny shall suffer death or such other punishment as decided by a court martial of senior officers rather than the usual form of law, which is too slow. seamen not showing up on board after notice shall serve six months without pay, but shall not suffer as deserters. seamen do not have to perform service in the army. pirates may be punished by death and loss of all lands and chattels. any person aiding, advising, or concealing pirates may be likewise punished. officers and seamen killed or wounded in the defense of a ship or who seize or destroy pirates may be paid by the owners an amount up to 2 pounds per 100 pounds of freight as determined by a group of disinterested merchants and the judge. the amount due to a man killed will be paid to his widow and children. this is to be done when the ship arrives in port. any person who informs of any combinations or confederacies planning to run away with or to destroy a ship shall be rewarded by the commander or master of such 10 pounds for a ship 100 tons or under, and 15 pounds for a ship over 100 tons. the trial may be in england or the american colonies, whose authorities may issue warrants for arrest of alleged pirates. deserters from ships, because they often become pirates, shall forfeit all wages. masters forcing any man fit to travel to stay on shore or willfully leaves him behind shall suffer three months in prison without bail. persons may mine for ores on their own land, but must turn it over to the king who will give compensation for it, including gold, silver, copper (16 pounds per tun), lead (9 pounds per tun), tin (40s. per tun), and iron (40s. per tun). by statutes of 1660 and 1662, when goods have been carried off ships without customs being paid, the chief magistrate of the place where the offense was committed or the adjoining place, or the lord treasurer, or a baron of the exchequer may, upon oath, issue out a warrant to any person to enter, with the assistance of a sheriff, constable or other public official, any house, shop, cellar, warehouse, or room in the day time where the contraband goods are "suspected to be concealed", and in case of resistance, to break open doors, chests, trunks, or other packages and to seize such goods, provided that if the information whereupon any house is searched proves to be false, the injured party shall recover his full damages and costs against the informer by action of trespass. this was extended to the colonies in 1696. the penalty for cursing or swearing by a servant, day laborer, soldier, or seaman is 1s. for others, it is 2s. the fine is doubled for the second offense, and tripled for the third offense. if an adult offender can't pay, he shall be put in the stocks for one hour. if a child offender can't pay, he shall be whipped by the constable or by a parent in the presence of the constable. the equity courts are now conceding limited proprietary rights to married women by enforcing premarital settlements or trust arrangements that designate certain property as a wife's separate estate and exempt it from control by the husband. such protective devices generally reflected a father's desire to shield his daughter from poverty and benefited only the landed aristocracy in practice. also, husbands are not allowed to punish and beat their wives as before. but the lower rank of men were slow to give this up. a wife could have the security of the peace against her husband. he could restrain her liberty only for gross misbehavior. in 1685, the courts ruled that apprenticeships were necessary only for servants hired by the year, thus exempting most wage laborers. there were many variations in religious practices for statutes to address. the quakers and baptists were opposed to any state church. the independents and presbyterians accepted the idea of a state church. the members of the established church and roman catholics adhered to their version the state church as they had experienced it in the past. atheism had a bad reputation. in 1662, the jews established the first synagogue in london. the privy council recognized their religious status as long as they were peaceful and obeyed the laws. they engaged in pawn-broking as well as money-lending. there were various statutes enacted over the course of time regarding religion, as follows: all ministers, school teachers, mayors and other town officials, including magistrates, were required to take the oaths of allegiance and supremacy [of the king over the church] or be removed from office. a great number of people refused to come to their parish church or other public place where common prayer and sacraments were administered and the word of god was preached according to the established church. the morning and afternoon sunday services with sermons, sometimes by guest preachers, continued. so factions and schisms developed. in response, the king changed the book of common prayer and its prayers were required by statute in 1662 to be read by some priest or deacon in all the churches and places of public worship wherever and whenever there was any preaching or lecturing. attendance at one's local parish church was never again required. attendance at the established church of england was never again required. nor was preaching or lecturing constrained. instead, a statute was passed in 1677 that: every person shall be pious and exercise religion publicly and privately on sunday. no work may be done or goods sold or else forfeit 5s. or the goods respectively. no one may travel or else forfeit 5-20s. in a further statute of 1688, because some ease to scrupulous consciences in the exercise of religion may be an effectual means to unite protestant subjects in interest and affection, protestant nonconformists who took the oaths, or declaration in the case of quakers, and a declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass were declared not liable for punishment in any ecclesiastical court by reason of their nonconformity to the church of england, except protestant dissenters meeting behind locked doors. but payment of tithes and performance of parish duties were still obligatory. non-conformist preachers had to subscribe to the tenets of belief listed in the first eighteen articles of religion, but were exempted from the articles on expounding inconsistencies in scripture, the traditions of the church, homilies, and consecration of bishops and ministers of the elizabethan statute and the statute on uniformity of prayers and sacraments of charles ii. as of 1665, no nonconformist minister, i.e. one who endeavored any alteration of government either in church or state, was allowed to live or visit within five miles of any corporate town or any place where he had acted as minister or else forfeit 40 pounds. persons not frequenting the established church were not allowed to teach in any public or private school or else forfeit 40 pounds. by statute of 1670, anyone at least sixteen years old who is present at any assembly, conventile [private meeting of religious dissidents to pray and expound scripture], or meeting under pretence of any exercise of religion in other manner than according to the established church of england at which there are at least five persons present shall be fined 5s. for the first offense and 10s. for the second offense. this does not include members of the same household meeting in their home. anyone who preaches or teaches at such a meeting shall pay 20 pounds for the first offense, and 40 pounds for further offenses. the householder who permits such a meeting shall pay 20 pounds. a justice or justice of the peace or chief magistrate may break open doors and enter by force any house or other place where they have been informed of any such meeting and take persons there into custody for prosecution. this is to discourage the growing of dangerous seditious persons under pretence of tender consciences. religious nonconformity continued especially among the humble people. the penal statutes caused hundreds of these nonconformists to be put in gaol. from time to time, the king would release them and suspend these laws. sometimes, charles ii allowed dissenters to meet in private for worship if they got a license from him. religious gatherings grew in numbers, size, and geographical extent. dissenters were then allowed by statute to meet behind locked or barred doors. but they had to pay tithes and could be prosecuted in the ecclesiastical courts for not doing so. by statute, all congregations and assemblies for religious worship had to register with the local bishop or archbishop. disturbers of religious worship were required to find two sureties for the amount of 50 pounds. quakers were active in the countryside. they were about one tenth of the population and did not believe in a state church. there were some quakers schools and some quaker workhouses to give work to the poor. for the reason that they met together in large numbers to the great endangering of public peace and safety and to the terror of the people, and because they had secret communications and separated themselves from the rest of the people and from the usual places of worship, a statute was passed in 1662, that any quakers who assembled to the number of five or more under the pretense of unauthorized religious worship and any person maintaining that taking an oath before a magistrate was unlawful and contrary to the word of god or refusing to take a required oath was to forfeit 5 pounds for the first offense or be imprisoned for 3 months if he couldn't pay. for the second offense, the penalty was 10 pounds or imprisonment for 6 months with hard labor. the third offense required abjuring the realm or being transported to a plantation of the king beyond the seas. the policy of charles ii was to allow quakers to meet undisturbed, to keep their hats on before magistrates, and to not come to the parish church. but this policy was only partially adopted in the country. from 1689, by statute, the quakers were allowed to affirm or declare instead of making the customary oath. many presbyterians became unitarians, who rejected the trinity of "father, son, and holy ghost" and doubted the divinity of jesus, but accepted revelation. this statute was then passed in 1697: any person having been educated in or having at any time made profession of the christian religion who, by writing, printing, teaching, or advised speaking, denies the holy trinity, asserts that there is more than one god, or that the bible is not of divine authority, shall be disabled for any ecclesiastical, civil, or military office. the penalty for a second offense is being disabled from suing or pleading any action in any court, being guardian of any child, or executor or administrator of any estate, or receiving any legacy or deed of gift and imprisonment for three years without bail or mainprize. catholicism was always disfavored. catholic priests were executed with little evidence. at times, charles commuted the death penalty for them to banishment. sometimes there were effigies of the pope burned in the streets. such burnings were later banned. at times charles allowed catholics to attend mass. by statute of 1672, all civil and military officers and king's officials must take the oaths of supremacy and allegiance and take the sacrament of the established church of england or be incapable of office. they also had to make a declaration that they believed that there is not any transubstantiation in the sacrament of the lord's supper, or in the elements of bread and wine, when they were consecrated. this is to prevent dangers from papists. as of 1678, no one may be a member of parliament if he has refused to take the oaths of allegiance and supremacy and the declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass. papists were made to pay higher taxes. every temporal and spiritual person, corporation, and guild had to pay taxes to subsidize the king in the amount of 2s.8d. for every pound's worth of personal property and money. but papists had to pay 5s.4d. for such. persons and corporations having land worth at least 20s. yearly, had to pay 4s. for every pounds' worth. but papists and aliens had to pay 8s. for such. but charles' successor, king james ii was catholic and gave many offices to catholics. this prompted a reaction against papists and more statutes restricting them. after james ii was chased out of england, a statute of 1688 required suspected papists in london to make a declaration that they were not catholic, did not adore the virgin mary or any saint, did not go to mass, or else stay ten miles outside of london. excluded were tradesmen and manual workers, who had only to register. all papists had to forfeit their arms and any horse worth more than 5 pounds. also, no king or queen or spouse of such could be a papist, but had to make the same declaration as members of parliament, and join in the communion of the established church of england. as of 1696, a person who was serjeant at law, counsellor at law, barrister, advocate, attorney, solicitor, proctor, clerk, or notary had to take the oath of supremacy and allegiance. as of 1698, papists who kept a school or tried to educate the young were threatened with perpetual imprisonment. also, popish parents were prohibited from forcing their children who were inclined towards protestantism to become catholic by refusing them suitable maintenance. as of 1699, a reward of 100 pounds was offered to any person who apprehended a popish bishop, priest, or jesuit saying mass. also, no papist was allowed to buy land. judicial procedure as of 1679, no man could be held in prison but on a charge or conviction of crime or for debt. every prisoner on a criminal charge could demand as a right from the court of the king's bench the issue of a writ of habeas corpus which bound his gaoler to produce the prisoner and the warrant on which he was imprisoned for review as to legality. this forced trials to be speedy, which they had not hitherto been. now it was impossible for the crown to detain a person for political reasons in defiance of both parliament and the courts, as charles i had done. the writ was suspended in times of war and domestic unrest: 1689, 1696, 1708. in 1670, william penn was arrested for sedition for delivering a sermon in london, contrary to the statute that only the church of england could conduct meetings for worship. the jurors would not convict him, so were gaoled and fined by the justices. the jurors filed a writ of habeas corpus in the court of common pleas, which held in their favor. thereafter the english jury had full independence to decide verdicts. by court decision of 1679, jurors were held not to be responsible to the justice for their verdict. after 1688, hearsay was inadmissible as evidence, which coke had recommended. the old system of original writs was abandoned, and the general concept or a wrong to person or property took its place. a person who was sergeant at law, counselor at law, barrister, advocate, attorney, solicitor, proctor [supervisor of students taking an eexam], clerk, or notary in the courts had to take the required oaths of allegiance and supremacy. as of 1692, persons outlawed could appear by attorney as well as in person to argue reversal of such outlawry, except in cases of treason and felony. as of 1696, persons accused of high treason where there might be corruption of the blood or for misprison [concealing knowledge] of such treason had to be taken before a grand jury for indictment within three years of the offense. those indicted or outlawed for such were given a copy of the whole indictment, but not the names of witnesses, at least five days before trial in order to prepare their defense. they could have a copy of the panel of jurors at least two days before trial. they could be represented in their defense by not more than two counsel learned in the law and assigned by the court. their counsel had free access to them at all reasonable hours. they could make proof through lawful witnesses under oath. in a trial of commoners for their lives, a jury of twelve freeholders had to all agree on acquittal or conviction. in a trial of a peer, the others peers in parliament determined the outcome by a majority vote. jurors were required to have at least 20 pounds income from freehold land or rents in fee, fee tail, or for life. this increase in the quality of the jury enabled it to better discern the issues in dispute. jury sympathy was determined by the sheriff who chose the jury. so if a sheriff was popularly elected, as in london, he chose jurors who favored individual and corporate liberty. if the king selected the sheriff, he chose tories, who supported the crown. issues of bastardy or lawfulness of marriage had to be tried by a jury. the civil suit of trespass on the case branched into assumpsit [a promise], trover [to recover goods converted to the use of another], deceit, negligence, and libel and slander. the latter supplements bad words punished by the local courts and defamation punished by the church courts. trover becomes the normal mode of trying the title to moveable goods as the courts oblige the defendant to answer the charge of conversion without permitting him to dispute the loss and finding of the goods by the plaintiff. this is an example of the initiation of a suit by a writ for trespass on the case: the king to the sheriff &c. as in trespass to show: wherefore (e.g.:___) he fixed piles across the water of plim along which, between the humber and gaunt, there is a common passage for ships and boats, whereby a certain ship, with thirty quarters of malt of him the said a, was sunk under water, and twenty quarters of the malt of the price of one hundred shillings perished; and other wrongs &c. as in trespass. this is an example of a writ for trespass on the case in assumpsit: the king to the sheriff greeting &c. as in trespass to show: wherefore whereas he the said x undertook well and competently to cure the right eye of the said a, which was accidentally injured, for a certain sum of money beforehand received, he the same x so negligently and carelessly applied his cure to the said eye, that the said a by the fault of him the said x totally lost the sight of the said eye, to the damage of him the said a of twenty pounds, as he saith, and have there &c. wherefore whereas he the said x undertook to make and build three carriages for conveying victuals of him the said a to parts beyond the sea for a certain sum of money beforehand received, within a certain term between them agreed; he the said x did not take care to make and build the carriages aforesaid within the term aforesaid, by which he the said a hath wholly lost divers his goods and chattels, to the value of one hundred marks, which ought to have been conveyed in the carriages aforesaid, for want thereof to the great damage of him the said a as it is said: and have there &c. this is an example of a writ for case on indebitatus assumpsit: the king to the sheriff &c. as in trespass to show: for that, whereas the said x heretofore, to wit (date and place) was indebted to the said a in the sum of for divers goods wares and merchandises by the said a before that time sold and delivered to the said x at his special instance and request, and being so indebted, he the said x in consideration thereof afterwards to wit (date and place aforesaid) undertook and faithfully promised the said a to pay him the said sum of money when he the said x should be thereto afterwards requested. yet the said x, not regarding his said promise and undertaking but contriving and fraudulently intending craftily and subtly to deceive and defraud the said a in this behalf, hath not yet paid the said sum of money or any part thereof to the said a (although oftentimes afterwards requested). but the said x to pay the same or any part thereof hath hitherto wholly refused and still refuses, to the damage of the said a of -----pounds as it is said. and have you there &c. this is an example of a writ for case for trover: the king to the sheriff greeting &c. as in trespass to show: for that, whereas the said a heretofore to wit [date and place] was lawfully possessed as of his own property, of certain goods and chattels to wit, twenty tables and twenty chairs of great value to wit of the value of ___ pounds of lawful money of great britain; and, being so possessed thereof he the said a afterwards, to wit (date and place aforesaid) casually lost the said goods and chattels out of his possession: and the same afterward, to wit (date and place aforesaid) came into the possession of the said x by finding; yet the said x well knowing the said goods and chattels to be the property of the said a and of right to belong and appertain to him, but, contriving and fraudulently intending craftily and subtly to deceive and defraud the said a in this behalf, hath not as yet delivered the said goods and chattels, or any part thereof, to the said a (although often requested so to do) but so to do hath hitherto wholly refused and still refuses; and afterwards to wit (date and place aforesaid) converted and disposed of the said goods and chattels to his the said x's own use, to the damage of the said a of ____ pounds as it is said; and have you there &c. the rigid writs with specific forms of action for common law cases started to fall into disuse. later, trespass on the case bifurcates into misdemeanor and the tort of trespass. persons in prison on suspicion of treason could not be released on bail as of 1688. if one of several defendants of a case was acquitted, all defendants recovered their costs from the plaintiffs. a person found guilty of malicious prosecution recovered his costs from his accuser. mercantile cases were decided in light of mercantile custom rather than according to the strict rules of the common law. merchants and traders could settle their trade disputes by arbitration, which decision could be enforced by court order. after the restoration, all legal decisions of the commonwealth and protectorate were confirmed subject to a right of appeal. the star chamber was not restored, and parliament assumed its control of the press. the king's bench succeeded to most of the star chamber's jurisdiction. no longer could the privy council influence criminal cases and the general supervision of legal processes through the star chamber. the high commission court was not restored, but church courts were, but with depleted powers. they accepted subordination to the common law courts. because the church's administration was inefficient and corrupt and its punishments inadequate, they gradually lost their power to the common law justices and justices of the peace. they had virtually no authority over laymen. they could still punish heresy, but lost jurisdiction over the law of libel and slander, which then were transformed by the civil courts, and over prostitution and scandalous lewdness. local ordinances for suppression of brothels, which were run by madams, were founded on breach of the peace. in 1678, the death sentence was taken away from the church courts. in 1697, church sanctuary was abolished. the county courts faded into insignificance, as the justices of the peace took on more jurisdiction. in 1668, new justices were issued patents with "at pleasure" instead of "during good behavior" describing their tenure. charles ii and james ii frequently dismissed justices not favorably disposed to the crown. in 1697, they were to have fixed salaries instead of the profits of justice. by statute of 1701, justices' commissions were to be made with an established salary determined by parliament and a tenure to last during good behavior. they could be removed only by the address of both houses of parliament. this gave them independence from the king. their tenure lasted for the life of the monarch. the chief justice could empower persons by commission to take affidavits from people in the country for court proceedings in westminster. judgments were docketed so they could easily be found e.g. by heirs, executors, administrators, purchasers, and mortgagees. court judgments and fines could be challenged for error only within twenty years. court decisions were still appealable to the house of lords. in 1668, skinner v. east india company held that the house of lords could not exercise original jurisdiction in civil cases between commoners as it had claimed, but retained its appellate jurisdiction. in 1675, the house of lords acquired the new judicial function of hearing appeals from the chancery court by virtue of the case of shirley vs. fagg. any gaol keeper allowing a prisoner to escape in return for money lost his office forever and had to forfeit 500 pounds. the last burning of a woman as a penalty for an offense, which had been only occasional, was in 1688. the last bill of attainder, which condemned a person to death, occurred in 1697. the pillory was still in use. benefit of clergy was taken away from those who stole cloth or woolen manufactures from their drying racks or who embezzled military stores or ammunition worth at least 20s, or stole goods of over 5s. value from a dwelling house with a person therein put in fear, a dwelling house in daytime with a person therein, or by day or night a shop or warehouse. a statute of 1661 gave jurisdiction to naval courts-martial to decide cases at sea, e.g. insubordination; failure to fight the enemy, a pirate, or rebels; not assisting a friend, mutiny, drunkenness, creating a disturbance to protest the quality of the food, quarreling, sleeping on watch, sodomy, murder, robbery, theft, and misdemeanors. usually the penalty was to be determined by the courts-martial, but sometimes death was decreed. in the american colonies, judges were still appointed by the royal governors and paid by the local legislatures. they still served at the pleasure of the king. chapter 18 times: 1702-1776 dress was plainer than before. gentlemen wore white linen shirts; waistcoats fitted at the waist and covering the trunk at least; long lawn ties wound around the throat and tied in front with the tails tucked in, knee-length coats that were wide in the skirts and in the sleeve cuffs and having large gold, silver, or bronze buttons which didn't reach to the buttonholes on the other side of the coat; knee breeches of cloth, knitted wool, thread, and silk; and silk stockings rolled up at the knee. some shoes had metal buckles. gold fobs with watches or seals hung from the breeches pocket. the clothes were made of silk, satin, or velvet and often in colors such as yellow, orange, scarlet, blue, violet, pink, and dull slate, and decorated with gold and silver trimmings. a slender sword was worn on the side. short wigs, often powdered with heavily scented white or gray wheat flour, with rolls over the ears and hair tied at the back, were worn for formal occasions. wigs were made of human, horse, goat, or cow hair, or mohair, worsted, silk, or wire. sometimes feathers and cork were also used. there were new colors and cuts of dress for every season. by 1750, wearing a sword was just a symbol of gentility. gentlemen often had valets to help them dress. ladies wore fitted full-length dresses held out by hoops with shoulders hidden, sometimes with a laced bodice with stays, and lace at the neck. the waistline fashion fluctuated between high and low and in tightness. the dress could be brocade, satin, velvet, silk, etc. some put jewels in their hair and had high elaborate hats with wide brims tilted forward. hair was in ringlets at the side or dressed close to the head with a small top knot covered with a laced cap. they also wore wigs when dressing up, decorated with ribbons and artificial flowers. hooded cloaks were used outdoors and hoods were used for sun or wind. they carried leather purses with gloves at elbow length. both gentlemen and ladies wore cosmetics and face patches and used tooth powders, breath sweeteners, lip salves, and choice perfume. some had false teeth of bone or ivory wired into place. both gentlemen and ladies had accessories such as fans, handkerchiefs, head scratchers, and elaborately designed snuff boxes, patch boxes, and perfume containers. both sniffed tobacco snuff but only men smoked it. they walked with tall, elegant canes, and women also carried parasols. hats were made of wool and hair of beaver, rabbit, or camel. a popular hat was three-cornered, and usually of beaver or dark felt. there was often a rosette or such to show one's political opinion. straw hats were worn in the summer. there were ready-made clothes and shoes, especially for children. night gowns and night caps were worn to bed. about 1714, umbrellas for rain were introduced. they were made of waxed silk or taffeta. all but the poorest wore silk and lace. a prosperous countryman wore riding clothes consisting of breeches and boots, cut-away coat, and low top hat. the highest class were the peers and peeresses of the house of lords and their spouses and families. they were the nobility and held the high political offices, the high ranks in the army and navy, and owned large estates, usually scattered over the country. some were lawyers or merchants. there was much intermarriage among these families. indeed, many a noble family had salvaged its fortunes by marriage to a london merchant. the richest people in london were international merchants. these high class families lived in mansions with four or five living rooms, two to five acre gardens, and stables. the next class were the gentry. their family heads had land and were often justices of the peace. they were sometimes members of the house of commons. the oldest son took over from his father, while the others had to find a living such as in the church, law, medicine, or trade. the gentry usually lived in mansions. the old yeoman class was disappearing due to their selling their land to larger landowners. farming on a large scale was more productive. the next class were the "middling sort". in this class were merchants, lawyers, substantial tenant farmers, smaller freeholders, millers, innkeepers, in town traders, middlemen, clothiers, ironmongers, goldsmiths, grocers, linen drapers, apothecaries, school masters, clerks and civil servants, customs and excise men, and .shopkeepers, who now kept their wares inside and lived on the second floor. the town people lived in town houses of two stories plus an attic. the next class were the manual workers. these were wage earners or independent craftsmen, farriers, rural smiths (who shod horses and made stair rails, window-bars, torch extinguishers, lamp irons, bells, bolts, hinges, locks, and fire-grates), sawyers, carpenters, joiners, wheelwrights, nail makers, brick makers, plumbers (made lead cisterns, kitchen sinks, rainwater heads, drain pipes and lead flats for houses and ornaments), thatchers, spinners (silk, flax, hemp, wool, hair), dyers, wool combers, weavers, shoemakers, hat makers, belt and buckle makers, dressmakers, milliners (hats, caps, bonnets, cloaks, hoods, muffs), feather workers, button makers, lace makers, steel pin makers, brewers, cutlery makers, soap makers, candle makers (made from beeswax, tallow, mutton-fat, or beef-drippings), comb makers, barber/hairdressers (shaved, cut hair, made wigs and braids, and let blood), curriers, leather workers, carpet weavers, paper makers, tin-plate makers, printers, enamel workers, braziers and coppersmiths (made kettles, saucepans, canisters, milk pails, lanterns, candle boxes, candle sticks, and lamp lighters), basket makers, jewelers (made rings, perfumes, match boxes, buckles, and tops of canes), watch and clock makers, type founders, letter cutters, trunk and chest makers, cabinet makers, saddlers, coach body builders, coach carriage makers, shipwrights, rope makers, and sail makers. these workers typically worked in their stone or brick houses in a rural setting, with gardens, a cow, a horse, pigs, and poultry around them on 2-6 acres. they now ate white or wheaten bread instead of rye bread, much meat and cheese, and drank tea. working men could now afford leather shoes. these people also worked in the harvesting of grain. some consolidation of work was starting. for instance, the weaver, who had furnished himself with warp and weft, worked it up, and brought it to market himself was being displaced by weavers who worked under supervision for one merchant in a town on looms the merchant had acquired. many women and children were so employed. it was not unusual for a man to work 13 hours a day for 6 days a week. the wage earners were well above the subsistence level as long as trade was good. real wages were higher than at any time since the mid-1400s. but eventually, as the employer came to realize how dependent the weaver had become on him, wages tended to fall. in 1757 a gloucester weaver, with his wife to help him, could earn, when work was good, from 13s. to 18s. a week. a few years later, he could only earn about 11s. a woman spinner earned 10-15d. a day in 1764, but 3-5d. in 1780. in the same period, men's wages fell from 17d. to 10d. a day. only certain workers, whose special occupation needed greater skill, e.g. the wool-combers, whose wool was longer and of better quality than carded wool, and shearers, were better paid. in 1770, wool combers made 13s. a week; their wage was about the same all over the country because they traveled form town to town in search of work and always supported each other. also in 1770, newcastle miners earned 15s. a week, sheffield cutlers 13s.6d. a week, a rotherham blacksmith 13s. a week, a furnace keeper at horsehay about 12s. a week, a staffordshire potter from 8-12s., a witney blanket weaver or a wilton carpet weaver 11s. or more a week, a manchester cotton weaver from 7-10s. a week, and a leeds cloth weaver about 8s. in this class also were ploughmen, cowmen, dairymaids of the bigger farms. they had cottages of wood, clay, and straw, with clay floors and low ceilings, and a divided ground floor. a few had homes built of stone, covered with slate or thatch. wages of industry were higher than those of agriculture. in 1770, a day laborer earned 5-6s. a week in winter and 7-9s. in summer, without board or lodging. in the short harvest time, he could earn 12s. a week. lastly were the mass of the population of london: hordes of laborers who depended on casual employment and could be dismissed at will. about half the population had no resources but their labor, which was usually unskilled and lowly paid. in good times they had just enough to feed themselves. the gap between rich and poor became greater. marriage remained a main way to wealth. also, one trained in the law could aspire to have a successful career in high political office, which also brought wealth. but there was less social mobility than in the previous century and many landed families were consolidating their position. industrialists who had made a fortune for example, in steel, cotton, coal mining, and porcelain, and merchants who wanted to turn themselves into landed gentlemen found it very difficult to buy landed estates. old dissenter families, quakers in particular, who were highly esteemed as businessmen, as industrialists, and as model employers were excluded from the anglican landowning society. rich tradesmen, artists, actors, and writers found it difficult to buy substantial houses in the small market towns and countryside because of an entrenched hierarchical atmosphere there that didn't exist in london. the only gentlemen who were in household service were librarians, tutors, or chaplains. they ate with the family and did not consider themselves servants. servants were kept more at a distance. by the 1750s the servant class was clearly defined. their quarters were moved to the basement of the house and they ate together in the kitchen. but some householders still had special occasions when everyone ate together in the dining room, with the servants at one end of the table. servants had no right to free time or to holidays. in 1767 about one tenth of the population in london had servants. even bricklayers and milk sellers had a servant. most families had just one servant. most wives employed some other woman or child to help in washing and scouring or in the minding of the children. london had grown beyond the locations of its walls around the city. london stretched ten miles along the thames, and was three miles wide in the center. on the east of the city was the port and industry. the west side ended at hyde park and regent's park and was residential. in 1710 it was still possible to shoot woodcock in regent street. in 1750, westminster bridge was opened. in 1760, the city walls were taken down to ease congestion. the typical london house, usually brick, was on a rectangular plan and had a basement to utilize all the space possible. walls were now more covered with hung damask, brocade, silk, and wallpaper or plain paint rather than by wood paneling. there were pictures on the walls. on the first floor was a front hall or parlor and a back parlor. one of these parlor rooms was the most important room, where the family entertained or spent leisure time. in it were sofas, armchairs, and stools of mahogany or white gilded wood. they were upholstered with damask or needlework. imported mahogany was replacing the favorite walnut that had replaced oak. much wood was inlaid with a variety of other types of woods. there was also a carved tripod table, china table, card table, and perhaps bookcases and/or tea-table. furniture with original designs made by the cabinet-maker chippendale was available. his genius was in combining various motifs into one harmonious design. cabinet makers had to keep abreast of his standards and to imitate them to conform with their customers' orders. cabriole legs with claw and ball feet came into fashion with queen anne about 1712. between windows were tall mirrors. from 1760, glass chandeliers hung from the ceiling to reflect candlelight coming from standing candlesticks or glazed hanging lanterns with brass frames. the fireplace had an elaborate mantel. the fire was kept going all day. it was lit by a tender box, which was unreliable. an iron fireback was behind the fire. the firewood was placed on andirons. fire grates were used from about 1712. at a corner of the building was added a closet. on the second floor was a dining room, continuation of the closet below, and a drawing room, dressing room, or bedroom, and perhaps a study or music room with harpsichord. the dining room had a fireplace; curtains over the windows looped up at the cornices; one or more mahogany tables; a set of mahogany chairs with leather or haircloth seats fixed with brass nails, perhaps with some sort of metal springing; two mahogany sideboards with marble tops; cupboards or shelves or cabinets with displays of china porcelain; a wine-cooler; a dumb-waiter; and a folding leather screen. the china, which was displayed, was mostly imported, but there was some english china. later, there was famous wedgwood stoneware and pottery with bright, unfading glaze, or with dull black and red surfaces, biscuit ware of pale green, blue or purple, upon which white designs stood out like cameos. they came from the pottery factory at staffordshire founded by potter josiah wedgwood in 1769. there were silver and pewter plates and serving pieces, silver candlesticks, silver knives, spoons, and two and three pronged forks, glass saltcellars from 1724, and fingerbowls from which one rinsed one's mouth or cleaned one's fingers after dinner which were made of glass from about 1760. on the third floor were bedrooms and a nursery. in the bedrooms, there was a high bed with curtains, canopies, piles of blankets and pillows, and steps up to it; wardrobe; chairs; a hand wash stand; chests of drawers; writing bureau; dressing table with a couple drawers and a mirror; swing standing mirror; tin rush candle canister; and night commode. children and servants slept on low wooden bedsteads. walls were stucco, a form of cement that could be sculpted, or paneled or hung with silk and printed paper. servants, such as the page and footmen, slept in the attic and perhaps in the kitchen or cellar. there was a wood staircase for the family and a back staircase for the servants. the floors and stairs were protected with carpeting. the kitchen was in the basement or in a covered shed in the back. it had an open fire and a tin oven. the cold water tap over the stone sink could supply cold water from a cistern in the basement or hand-pumped to a roof cistern through wooden pipes at very low pressure at stated hours for a fee. there was a wash shed in back. water pumped from the thames into underground pipes was thus distributed to householders three times a week. some water came from a well or spring, rain, and street water sellers. water carriers were still employed at set fees. water was kept in lead cisterns. the wealthy had basement cisterns filled by a commercial company. the free public conduits of water were out of use by 1750. the front door of the house had two strong bolts on the inside and a heavy chain. the windows could be shuttered and barred. there were sash windows with cords and brass pulleys. at the back of the house was a garden and perhaps a coach house or stables. landscaping to reproduce an idealized country scene replaced formal gardens. foreign trees were imported. the latrine was usually not in the house, but somewhere in the back garden area. under it was a brick drain leading to a public sewer or to a cesspool. smelly gases arose from it. sometimes people gathered such waste up to sell to farmers returning home in an otherwise empty wagon. in 1760, patented inside toilets began to be used. each stood in its own room. a watchmaker named alexander cummings patented in 1775 the water-closet, which had a stink trap u-bend behind which, after flushing, water resided and prevented the backflow of noxious sewer gas. its pans and overhead cisterns were made of pottery. they were supported by wood structures. there were better cements for building. chinese porcelain, embroidery, and lacquer work were popular. furniture and landscaped gardens were often done in a chinese style. many of the well-to-do now lived in districts without as well as within the city limits. many streets east of the city were named after the governing families whose estates were there. their mansions had interior columns, archways, marble halls and fireplaces, carving, gilding, rich colors, and high ornamented ceilings. they each had a picture gallery, a library, stables with coachmen, grooms, and stableboys, and a still-room for concocting liquors and cordials such as cherry brandy, sloe gin, and elderberry wine. medicine and scents were also developed in the still-room. hands were washed in bowls held up by wooden stands. there were built-in bathtubs, but they usually lacked hot and cold running water, so hot water usually had to carried up to them. in these mansions, there were many private parties and balls. the standard for politeness here was high and gentlemen were expected to keep their tempers. this came about because impoliteness could easily lead to a quarrel and then a duel. the pistol was replacing the sword as the weapon of choice for duels. good manners developed for all occasions, with much less swearing and less rudeness. by gentlemen's agreements, men did favors for each other without a monetary price, but with the expectancy of a favor in return. the love of one man for another was recognized as the highest and noblest of human passions. people of high social standing left their country estates to spend the winter season in their townhouses in london with its many recreations such as receptions, routs ]fashionable gatherings], levies, masquerades, balls, dinner parties, clubs, pleasure gardens, theaters, shops, shows, taverns, and chocolate and coffee houses. coffee houses provided turkish coffee, west indian sugar and cocoa, chinese tea, virginia tobacco, and newspapers. they were frequented by learned scholars and wits, dandies, politicians, and professional newsmongers. men of fashion often engaged in wagers and gambling at their clubs and coffee houses. there were wagers on such matters as the longevity of friends and prominent people, fertility of female friends, wartime actions, and political matters. gentlemen often had valets. carriage by sedan-chair was common. in 1776, buckingham house was bought as a palace for the royal couple. physicians and lawyers lived in two-story brick mansions with attics and sash windows that could be lifted up and down with the help of a pulley. they had rectangular wood panes each with a sheet of glass cut from a circle of blown glass. the old blown glass was not regular, but had a wrinkled appearance. the center of each pane of glass was thicker with a knot in the middle left from the blow pipe. in front of the house were railings which supported two lanterns at the doorway. people from different parts of london differed in ways of thinking, conversation, customs, manners, and interests. for instance there were sections where sailors lived, and where weavers, watchmakers, and cow keepers each lived and worked. there were many specialized craftsmen who worked with their own tools in their own shops or houses, for some superior who had contact with the market and who supervised the final processes of manufacture. these included the goldsmiths, upholsterers, coach makers, saddlers, and watchmakers, all of whom had many dependents. the watchmakers had specialists making wheels, pinions, springs, hands, dials, chains, keys, caps, and studs in their own houses. the type of industrial organization most common in london was that in which work was given out to be done in the homes of the workers: the putting out system. some industries, such as watchmaking, silk weaving, and shoemaking were on both a putting out system and a system of an apprenticeship to journeymen working on piece work. shoes were made to order and ready made. the customer was measured in a shop, the clicker cut out the upper leathers, which were given to the closer to be closed, and then to the maker for the sole and heel to be put on. another class of shoemaker worked alone or with an apprentice in a garret, cellar, or stall, using pieces of leather cut out for him by the currier or leather cutter. london industries included the making of bread, beer, spirits, and vinegar; sugar refining; tobacco refining and snuffmaking; spinning and/or weaving of woolens, worsteds, silk ribbons, tape, and cloth; and making printed calico, clothes, linens, laces, tassels, fancy embroidery, stays, stockings, hats, shoes, leather goods such as boots, shoes, hats, gloves, harnesses, and saddles, jewelry, glass, candles, tapestry, musical instruments, cutlery, furniture, paint, varnish, paper, tools, swords, guns, heavy artillery, ships, sails, rope, carriages, precious and base metalwares such as brass and pewter ware, and printer's ink and glue; printing; and publishing. surgical instruments made included straight and curved knives and probes, lancets, scissors, spatulas, trepans (for cutting bone), and cupping cases. optical instruments made included eyeglasses, telescopes, and microscopes. in 1727 eyeglasses were held in place by frames that went over the ears, which replaced unreliable cords over the ears and leather straps tied behind one's head. also made were nautical instruments, quadrants, sundials, sectors, globes, scales, model solar systems, and air pumps. in london, the old distinction between craftsmen and laborers was blurred by the existence of trades which employed workmen under a skilled foreman instead of journeymen who had served an apprenticeship. these trades were, on a large scale, new. among the most important of these trades were the distillers and brewers of liquors, the tobacconists and snuff makers, the sugar refiners and soap boilers, the vinegar makers, and makers of varnish, glue, printers' ink, and colors. the latest chemical theories and the chemical explanation of dying brought about the invention of new colors and new processes in dying cloth. workers in these trades were considered as laborers, but their wages were high and their positions relatively secure. they learned their jobs by doing them. the older trades of a similar character, such as tallow melters and chandlers, wax chandlers, fellmongers [removed hair or wool from hides in preparation for leather making], and the tanners, employed journeymen. the skilled artisan who worked at home and either made goods for a master or sold to the trade verged into the shopkeeping class. on the other hand, the lowest type of shopkeeper, the chandler, the dealer in old iron, the tripe shop, the milk retailer, the keeper of a cook shop or a green cellar belonged to the class of casual and unskilled labor. the lowly chimney sweep, paid 6d. a day, served an apprenticeship as a boy, and then was his own master. the watermen and lightermen, by virtue of their fellowship and their apprenticeship and often the ownership of a boat, belonged to the class of skilled laborers. craftsmen in the building trades and paviours had their laborers as smiths had their hammermen to do the heavy work at laborers' pay. the street ragpickers, the ballad sellers, and the match sellers belonged to the class of beggars. there were buildings for boiling and distilling turpentine, for casting brass or iron, and for making glass for chemical works for sale. working women in london in 1750 were employed in domestic service: 25%, nursing and midwifery: 12%, cleaning and laundry: 10%, vitiating: 9%, shopkeeping: 8%, hawking: 6%, and textiles: 5%. those employed in domestic service were mostly young women who later married. some women were schoolteachers, innkeepers, or manufacturers, which were middle-class employments. many women in the realm engaged in a variety of occupations from fanmaking and hairdressing to catering, and, as widows, often carried on their husband's trade, including bookselling, hatmaking, building or ironmongery. although shops still had small frontages of about 15 feet and the windows had small panes of bottle glass which partly obscured the view of the goods, there were magnificent shops with large windows displaying fine goods. there were bookshops, and print shops with prints of political satire with caricatures. the shops were generally open six days a week from 7 a.m. to 8 p.m., and years later to 10 p.m. in 1675 josiah wedgwood opened a showroom in london for his high quality pottery from staffordshire. consumption was on a mass scale, many people buying what they wanted instead of just what they needed. there were circulating libraries, public concert halls, and professional boxing matches. at coffee houses, chocolate houses, and taverns, people played at dice and cards, gambled, talked politics and read daily newspapers, in which there was advertising, reports of marriages and deaths, grain prices, and book reviews. different professions and classes and groups, such as the whigs, the tories, classical scholars, scientists, clergymen, intellectuals, actors, writers, and journeymen of particular crafts, had their favorite meeting places. coffee houses reflected the character of their neighborhoods. they acted as postal centers, lost property offices, business addresses, physicians' consulting rooms, lawyers' and merchants' businesses, matrimonial agencies, masonic lodges, auction rooms, and gambling dens. some retained a supply of prostitutes. many taverns had a rentable private room for the better-off to drink wine, have meals, meet friends, gamble, do business, and hold meetings of societies and clubs, especially political clubs. from this beginning sprang private clubs such as the blue stocking club in 1750 and the literary club in 1764, lloyd's for sale and insurance of ships in 1771, and the stock exchange in 1773. the blue stocking club was established by women who organized conversational parties with guests of intellect and wit. there was opera, playhouses, concerts usually with georg handel's oratorios such as the messiah or the foreigners bach and haydn, tea-gardens, fire works, balls, masquerades, wax works, beer shops, and bawdy houses, except on sunday. there were straight plays, comic operas, and melodramas. three-dimensional sets replaced the twodimensional backdrop. plays containing thinly veiled satires on politicians were becoming popular. some plays had crude and licentious material. theaters still shared a close association with brothels. unlicensed theaters were closed down by a statute of 1737, but most came to acquire patronage to get a license. this shaped the development of drama in london for a century. the beggar's opera depicting an immoral society unable to master its bandits was written by john gay as a powerful attack on a government which most of london hated. with its many ballads it became very popular. one such ballad goes: "through all the employments of life each neighbor abuses his brother; whore and rogue they call husband and wife; all professions be-rogue one another. the priest calls the lawyer a cheat, the lawyer be-knaves the divine; and the statesman, because he's so great, thinks his trade as honest as mine." another is: "a fox may steal your hens, sir, a whore your health and pence, sir, your daughter rob your chest, sir, your wife may steal your rest, sir, a thief your goods and plate. but this is all but picking, with rest, pence, chest and chicken, it ever was decreed, sir, if lawyer's hand is fee'd, sir, he steals your whole estate." the thames was crowded with sailing boats and with a line of boats waiting to unload. foreign and native ships lined the river banks in rows. theft of cargo from docked ships was still a problem and pirates were still executed at low tide on gallows. londoners went to the bridges crossing the thames to breathe fresh air. london air was so smoky and polluted by coal-burning in kitchens and factories that it gave a cough to newcomers. the river was so polluted by the sewers by 1760 that all the swans and most of the fish had disappeared. a mansion house was built for the mayor in 1753. the king's zoo had ten lions, one panther, two tigers, and four leopards. deer hunting in hyde park was now confined to its northwest corner, which was enclosed for the king, who occasionally hunted there. elsewhere in the park were laid out walks and fountains. gardens were now natural instead of formal. the streets were usually crowded with people and traffic. many people traveled by sedan chair. on the streets were barrows with goods such as lace, threads, fruits, and chickens; beggars, ballad singers, musicians, bands, street dancers, apple women, piemen, muffin men, fruit sellers, nut sellers, pudding sellers, milk maids selling milk from buckets, milk sold directly from the cow, vendors of asses' milk, hawkers, newspaper boys, scavengers with carts, postal collectors, lamplighters on their ladders, wenches, chimney sweeps, rat catchers, pick pockets, swaggering bravados, strolling strumpets, brawling watermen, card sharps, overdressed beaux, dancing dogs, and acrobatic monkeys. each trade had it own call. billingsgate open-air market was now exclusively for the sale of fish. small tradesmen such as dairymen, butchers, bakers, fishmongers, and chandlers delivered to regular customers food bought from distributing centers. workers by necessity lived near their place of work because there was no cheap transport and walking through the streets after dark was unpleasant and dangerous. hours of work for most craftsmen was from 6 a.m. to 8 p.m., six days a week. it was common for working class families in london to live in a single room of their house and rent the rest, furnished, to people of different degrees of prosperity and even of different social grades. servants and apprentices slept in the kitchen, the shop, or the garret. the very poor, such as casual laborers and street sellers, silk winders, charwomen, usually lived in damp cellars subject to floods from excessive rain, or in cold and windy garrets. tenancy was usually on a weekly basis because of the general uncertainty of life and trade. conditions were so cramped that cabinet makers made beds which masqueraded in the day time as tables, bureaus, cupboards, or bookcases. the very poor slept in common lodging houses, sleeping uncovered on the floor, twenty to a room. some poor families slept in small hovels made of mud and straw with their pigs, domestic fowl, dogs, and even asses and horses. homeless children slept on the streets. all classes lived so much at coffee houses, alehouses or clubs, which they often used as their addresses, that house room was a secondary consideration. there was an alehouse on almost every street in london to provide cheap food and beer, lodging, employment information, credit, newspapers, tobacco, and meeting places for tradesmen. some alehouses were recognized employment agencies for certain trades, such as the hatters, smiths, carpenters, weavers, boot and shoe makers, metal workers, bakers, tailors, plumbers, painter and glaziers, and bookbinders. they were often run by one of the trade, retired or otherwise. some alehouses catered to criminals and prostitutes. for cheap and simple eating there were chophouses, cookshops, and beef steak houses. there were about 10,000 english immigrants a year to london in the 1700s. they were mostly young people. london needed many immigrants because of its high death rate. over twenty london people a week died from starvation alone; they were mostly women. only about one-fourth of london's population had been born in london. especially welcome were sturdy country people for heavy manual labor, the better educated boys from the north for shops and offices, and the honest country people, as contrasted with london's poor, for domestic service. girls mostly looked for domestic service, but were sometimes made the mistress of the housekeeper or steered into prostitution as soon as they entered the city. an ambitious young man would seek an apprentice job, work hard, flatter his master, and try to marry his master's daughter. it was easier to find a place to live in london than in the villages, though there was much overcrowding. many shopkeepers and workshop owners in london were involved in leasing, purchases, and contracts. queen anne was authorized by parliament to build about 50 more churches in london and westminster and their suburbs, to be paid for by a coal tax on imports into the port of london. churches in london were to be rebuilt with money paid by funeral rates, rates for tolling the bells, and rates for the use of palls [altar cloths]. queen anne also appropriated all her revenues from the first fruits and tenths of ecclesiastical benefices: 16,500 pounds, to the clerical poor in 1704. there were fewer quarrels among passersby on the london streets; men were less likely to wear their swords. but there were fist fights by common men which gathered crowds and occasioned betting. most crime was petty theft, but mobs and riots were frequent, as there were no police. watchmen and constables were often old and physically incapacitated. the watchmen were householders taking their turn. this duty of householders watching the streets had evolved from the ancient obligation of wards to provide men to guard the walls at night. but few wanted these jobs by which they could offend their neighbors. many citizens paid a rate to be excused from watch and ward duty. constables were often tavern keepers. many riots were started when penal laws against the catholics were repealed. they began with the cries of "no popery", but then targeted rich men's houses. mobs sacked and pillaged at will, burned houses, and flung open the prisons to increase their numbers. there were political riots between tories and whigs. working men still used violence to protect their livelihoods, such as destroying the lodgings and public houses of cheap immigrant labor such as the irish. the stocking-knitters destroyed stocking-knitting frames so that the number of apprentices who could be employed would not reach the limit specified by its guild's regulations. parish workhouse children also provided a cheap supply of labor which forced down the wages of the stocking knitters. in 1720 a statute banned wearing of calico after mobs tore calico garments off women. in 1765, thousands marched on parliament and persuaded it to ban foreign silk imports. but when a mob destroyed engine-looms, the army was used against the rioters and two of them were hanged. this was the last major mob action. around the tower, there were still demagogues standing on upturned carts haranguing passing crowds. the tower area was a favorite place for demonstrators, and for unemployed and dissatisfied workmen, particularly coal heavers and underpaid seamen protesting their low pay and poor living conditions. there was more crime, especially at night, now with organized bands of men or gangs of children. bounty hunters made a lot of money catching offenders. in 1736, to deter the frequent robberies, burglaries, and other felonies at night, many glass lamps were set up in places determined by the mayor. they had to burn from sunset to sunrise. in 1736, a lighting rate was imposed by the city to pay for all night lighting all year by hired lamplighters. anyone breaking or damaging the lights of london would forfeit 40s. for the first offense, 50s. for the second offense, and 3 pounds for the third offense. the aldermen had to contract to pay for lighting, trimming, snuffing, cleaning, supplying, maintaining, and repairing them. to pay for this system, citizens paid according to the amount of rent their holdings were worth. if they didn't pay, they could not vote. bad areas of thieves and prostitutes and the slums east of the city were gradually being replaced by warehouses and offices. in 1757, london bridge was widened and the houses were cleared off it. there were lanes for carriages in the middle and for pedestrians on each side. its arches were also widened to make the passage of vessels underneath easier. lights were put on it to be lit all night. and watchmen were put on it for protection and safety of passengers. this was paid for by tolls of 1/2 d. per horse, 1d. per carriage, and 2d.-1s. for vessels with goods passing underneath. about 1762, a body of enterprising citizens secured private acts of parliament which allowed them to levy a house tax in return for providing paving and lighting, which then greatly improved, as did sanitation. sidewalks were raised between the street proper and the buildings, replacing the protective posts which had lined the roads. flat stones were put in place of the pebbles on the roadway. signs hanging out from stores, which had blocked the sunlight, were placed flat on the front of the buildings. this also made the streets more airy. the buildings were given numbered addresses and street names were placed on buildings. loading and unloading could not exceed one hour. nuisances like empty carts could be removed. cranes used in warehouses had to be stored in unobtrusive places. one who drove on the foot pavement had to forfeit 10s. for the first offense, 20s. for the second offense, and 40s. for other offenses. wells were dug and pumps erected for watering the streets. pavements were to be repaired on complaint. dust boxes and dust holes were built and had to be used for refuse awaiting pickup by the raker or else forfeit 10s. in 1762, the system of having every man responsible for cleaning the street in front of his door, which occasioned piles of rubbish in the central troughs of the streets waiting for the next rain to be washed away, was abandoned. but house occupants were required to keep the sidewalk in front of their house clean or else forfeit 2s. if one broke a light, he had to pay damages if it was accidental, and also 20s. if willful. wards were to choose substantial inhabitants to be collectors for a year at a time to collect the rates, which were not to exceed 1s.6d. per pound of rents. if one declined to be a collector, he had to forfeit 50 pounds. there were special stands for hackney coaches, which were 12s.6d. for a day of twelve hours. their regulations were extended to sundays. in london, the normal system of building was for builders to buy up leases, put up a new building, and sell it before the lease became due. the rules for party walls between buildings were made more stringent: 2 1/2 bricks thick in cellar, 2 bricks thick to the garret floor, and 1 1/2 bricks above the roofs or gutters. they had to be made of brick or stone. in 1772, rain water from roofs had to be carried to the streets in lead or other pipes that were affixed against the side of the building. in 1774, iron, copper, or other pipe or funnel for conveying smoke or steam were not to be near any inside timber, or in front of most any building or next to any public street, square, or court. in the 1720s firefighters had to fill a tank on a wagon by hand with buckets. on top of the tank was a hose that could spray water high. london parishes were authorized to place upon the water pipes underground stop-blocks of wood with a plug and firecocks to go into such pipe at various distances so that there would be no loss in time in digging down to the pipes to get water to fight fires. parishes were required to keep at known places, ladders and a large engine and a hand engine to throw up water to extinguish fires including one leather hose with socket fitting the plug or firecock, so that buckets would not be needed. the sun insurance company was incorporated for fire insurance in 1711. insurance offices were authorized to employ watermen with poles, hooks, and hatchets to be always ready at a call to extinguish fires. no more than 12 sacks of meal, 12 quarters of malt, 750 bricks, or 1 chalder of coal per load on wagons or carts with wheels bound with [narrow] iron tire are allowed within ten miles of london or westminster, or else forfeit one horse. this is to prevent decay of the roads. for every wagon and cart in london, there must be a person on foot to guide it to prevent the maiming, wounding, and killing of people, especially the old and children, when drivers ride on their wagons and carts. later, it was required that carts must display the name of the owner and be registered. still later, there was a penalty of 10s. for not having a person on foot to guide any cart. later still, in 1757, if a new owner of a cart did not put his name thereon, he had to forfeit 40s., and the cart and horse could be seized and sold to pay the forfeiture. persons willfully obstructing passage on streets with empty carts or barrels or pipes shall forfeit 5-12s. or do hard labor up to one month. the justices of london assessed rates and made regulations for carriage of goods. certain houses and buildings were bought and pulled down to widen several streets, lanes, and passages. in 1774, persons driving cattle in london, whose negligence or improper treatment of such cattle cause them to do mischief shall forfeit 5-20s. or else go to a house of correction for up to one month or be publicly whipped. the roads around london were neither very attractive nor very safe. along them was land covered with water from drains and refuse and dung heaps. hogs were kept in large numbers on the outskirts and fed on the garbage of the town. smoking brick kilns surrounded a great part of london. in the brickyards vagrants lived and slept, cooking their food at the kilns. queen anne's drinking of tea made it a popular drink, but it was still expensive. this habit improved health because to make tea, the water had to be boiled before drunk. breakfast included tea and bread and butter, and later toast with melted butter. the rich also had coffee and chocolate. the morning newspaper was often read at breakfast. the chief dinner dishes were roast beef, roast mutton, boiled beef or pork, with puddings and vegetables. roast meat was still the basic diet of town and country gentlemen. there were also fowls, tripes, rabbits, hares, pigeons, and venison. many elaborate sauces were made. the national dish was the pudding, a compound of steak, kidney, larks, and oyster. drinks included ginger beer, lemonade, barley water, coffee, chocolate, tea, and foreign wine. port from portugal was introduced about 1703, and rum about 1714. rum, made from sugar, first became popular as a medicine, well-whisked with butter. beer was drunk by the poorer and middle classes. the poor could afford very little meat now, unlike 200 years ago. their standard fare was cheese, bread, and tea, the latter of which was usually from used tea leaves bought from rich houses. households were smaller; a peer had a household of about 25-50. the proportion of women in a household grew to one-third to one-half. dinner guests sat and were served in order of rank, with gentlemen on one side of the table and ladies on the other. later, a fashion came in to sit alternately by sex. dinner was in several courses and lasted a few hours. toasts might be made. it was bad manners to put one's elbows on the table, to sniff the food, to eat too slowly or too quickly, to scratch, spit, or blow one's nose at the table, or to pick one's teeth with a toothpick before the dishes were removed. after dinner, the men drank, smoked, and talked at the table. there was a chamber pot under the sideboard for their use. politics was a popular subject. the women talked together in the drawing room. later, the men joined the women for tea and coffee. the evening often finished with card games, reading newspapers, verse-making, fortune-telling, walks in the garden, impromptu dancing, perhaps gambling, and supper. the nobility and gentry became more mobile and now mixed together at parties. at these afternoon parties, there were a variety of simultaneous activities, instead of everyone participating in the same activities together as a group. guests could choose to engage in conversation, news, cards, tea-drinking, music, dancing, and even go into supper at different times. sometimes a man other than her husband escorted a lady to a party. having lovers outside marriage was socially accepted if discrete. single women were discouraged from thinking of their independent status as desirable. their single status was to be regarded as unfortunate. weddings took place in public in church instead of privately. there were banns, or announcements, publicized before the wedding so that anyone who knew of a reason why the marriage should not take place could speak up. brides wore a white silk or satin dress with a train. over one third of brides who were capable of having children were already pregnant when they married. in 1753 a marriage statute required licenses to marry, the consent of parents or guardians for minors to marry, the calling of banns, and four weeks residence in the parish where the license was given by bishop or other authority. these requirements addressed the problems of the kidnapping of heiresses, prostitutes trapping unwary youths after getting them drunk, and priests performing marriages clandestinely and not in church, which required banns. two witnesses to the marriage were required to sign a certificate of marriage, which was then to be registered in the parish books. manufactured goods relieved ladies from baking of bread, brewing, and spinning. so they often visited with friends, wrote letters, embroidered, and supervised the servants. funerals ceremonies started with socializing at the house with refreshments, then going in a procession to the church for burial, and finally returning to the house for more socializing. it was possible for a woman-covert to be seized of land in fee simple or in tail general or special to her separate use, free from control or intermeddling of her husband. houses were warmed in winter by burning coal. moderate homes had tent-beds in use, with which cloth was hung on all four sides of the bed from a light iron framework above the bed. the beds were warmed with a warming pan heated in a fire before use. there were often bed bugs and fleas. everyone wore nightcaps to bed. pewter tableware was used, but the poor used tinware instead. copper, brass, and iron pots and pans were increasingly common. most towns had a regular market once or twice a week. in them, street cleaning was still a responsibility of individual householders. water was still obtained from wells and pumps. there was no municipal government as such. public works were done by special commissions set up for particular purposes, such as lighting, cleaning and paving the streets, night watchmen, traffic regulation, removing nuisances, and improving local amenities. large towns had hospitals for the poor. in the larger manufacturing towns, there were literary and philosophical societies for debates and discussions. these put together libraries for use of their members. also in these large towns, there were booksellers' shops, printing houses, weekly newspapers, playhouses, concerts, and horseracing courses, the latter of which was mostly patronized by gentlemen. some private citizens of various towns followed the example of london and obtained from parliament the right to levy a house rate for paving and lighting. towns tended to be known for certain specialties, such as seaside holiday resorts, spas like bath, cathedral towns, fashionable shopping for gentry, and towns with certain industries like glass and china manufacture, pinmaking, pottery, tanning, manufacture of linen, silk, cotton, and the knitting trade. certain towns were famous for certain varieties of wool cloth. before 1750, a town with more than 5,000 inhabitants was considered a large town. shopkeeping was supplanting fairs and markets. certain industries were done on a large scale and required workers to be at the same site, e.g. brewing and distilling; building ships; printing fustians; making paper, soap from animal fat or candles; coal mining, iron production, mining and smelting of tin and copper, refining of salt, and digging of clay. certain other industries also required some kind of power or team work for their production, e.g. refining sugar; finishing cloth; making bricks; glassmaking; manufacture of ropes and sails, and processing of copper and brass into rods and sheets. often the manufacturer's house was surrounded by the many cottages of his workers. there the wife and children usually were busy carding and spinning. putting out work and subcontracting were widespread and created many small-scale capitalists. workers' hours were typically 6 a.m. to 8 p.m. though grammar schools were endowed for the education of local poor boys, they sought fee-paying sons of gentlemen. they taught arithmetic as well as reading and writing. translation and reading of latin was still important, e.g. aesop's fables, virgil, cicero's letters, caesar's commentaries, horace, pliny, juvenal, ovid, livy, and plautus. the "eton grammar" book replaced the "royal grammar" as the standard for latin and english grammar. the boys lived in boarding houses superintended by "dames" or older boys. there were usually two boys to a bed. there was bullying and initiation ceremonies such as tossing small boys up from a held blanket or having younger boys run naked in the snow. there were occasional rebellions by the boys and fights with the townspeople. flogging with a birch or caning with a rod until blood was drawn from the bare buttocks was the usual punishment. there were some national boys' boarding schools such as eton, winchester, and westminster. in these schools, boys could mix with sons of rich and powerful people, thus establishing important connections for their adult life. but there was more bullying of small boys by large boys at these schools and the smaller boys became menial servants of their seniors. occasionally there were student riots. however, most grammar schools were not residential. because the grammar schools were limited to boys, many boarding schools for girls were established. tradesmen's daughters were often sent to these to learn to act like ladies. most upper class girls were taught, at home or at school, english, writing, arithmetic, drawing, courtly dancing, needlework, music, and french. dissenting academies were established for those who did not pass the religious tests of the grammar schools. pencils were now in use. sons of gentlemen usually took "the grand tour" of the continent before going to university. these tours lasted for months or years, and always included paris and a protestant french university. the students went in groups with tutors. the chief purpose was now cultural, instead of practical. on these tours there was often misbehavior such as drinking and fighting. in 1720, travelers checks were developed for those on the grand tour. the universities began to teach science. the new professorships at cambridge university were: chemistry, astronomy, experimental philosophy, anatomy, botany, geology, geometry, and arabic. ideas in geology challenged the bible's description of the creation of the world and there was a controversy over the origin and nature of fossils. in 1715, a large pointed weapon of black flint was found in contact with the bones of an elephant in a gravel bed in london. oral and written examinations began to replace disputations. few professors lectured. dissenters were excluded from universities as well as from offices and grammar schools. oxford and cambridge universities were open only to members of the church of england, so other universities were established for dissenters. they taught geography, mathematics, science, physics, astronomy, mechanics, hydrostatics, and anatomy. at oxford and cambridge and harvard universities, students in science were relegated to different instructors, buildings, and degree ceremonies than students in literature, who often looked down on them as socially and intellectually inferior. the inns of court had ceased to provide residence. the period of education at law school at the inns of court was now reduced in 1760 from seven to five years for ordinary students and to three years for graduates of oxford or cambridge universities. the textbooks were: "doctor and student" by christopher saint-german in 1518 and "institutes of the laws of england" by thomas wood in 1720. most landed families tried to ensure that at least one member of the family in each generation was educated at the inns of court after going to oxford or cambridge. in 1739, attorneys formed a "society of gentlemen practitioners in the courts of law and equity". in order to earn a living, most attorneys had to attach themselves to some great patron and serve his interests. so it was hard for an ordinary person to find an impartial attorney or to find any attorney willing to contest a powerful family. the first encyclopedia came into existence in 1728. in 1740 was the first public circulating library in london. samuel johnson put together the first dictionary in 1755. it standardized spelling and pronunciation. then came dictionaries for the arts, sciences, and commerce. there were histories with political biases such as the earl of clarendon's "history of the great rebellion". alexander pope wrote witty satire on human faults of the period such as "rape of the lock". daniel defoe wrote "robinson crusoe", "moll flanders", and "the poor man's plea" protesting disparity of judicial treatment of rich and poor, for instance for drunkenness. henry fielding wrote one of the first novels: "tom jones". joseph addison wrote essays on social behavior. jonathan swift wrote the satire on the times, "gulliver's travels". samuel richardson wrote some of the first novels, such as "clarissa"; he wrote on values such as religious faith, moral virtue, and family closeness. catherine macaulay started writing her weighty and impressive "history of england". many schoolmistresses wrote textbooks on a variety of subjects. poet and essayist hester chapone wrote "letters on the improvement of the mind". elizabeth carter wrote poetry and translated greek works; her work was published in "the gentleman's magazine". hannah more wrote the play "the inflexible captive". the diaries of caroline girle powys daniel told of her extensive travels in the nation, and the various life styles of polite society she visited. defoe's newspaper was the first great political journal. he claimed that the people have a right to control the proceedings of parliament. essayists like richard steele, who introduced the periodical essay in his newspaper, and joseph addison, in his newspaper, wrote in a conversational style about the social life around them and the thoughts and behavior of common men and women in a light and good-humored way. they separated humor from the old-style farce and gave it taste and gentility. and with this came a moderation, reserve, and urbanity in matters of religion, politics, and society. religious issues even became a matter of indifference. fairies, witches, astrology, and alchemy were no longer taken seriously by educated men. tales of fairies, witches, ghosts, and miracles were deemed appropriate for children. childrens' stories were becoming a distinct literary form. nursery rhymes included "hush-a-bye baby on the tree top" and the five little piggies. "mother goose's melody" was published in 1765. there were picture books for children such as cinderella, red riding hood, and sleeping beauty. craftsmen made small models of their wares, such as dolls' china, dolls' furniture, silver, and flat lead soldiers. babies had rattles and teething rings. in 1710 copyrights for books was given for 14 years, renewable for another 14 years. alexander pope's translation of the iliad and odyssey made him financially independent. he collected advance payments from subscribers who would be listed in the book. a new book industry emerged in london with booksellers as master manufacturers who employed writers, authors, copyers, and subwriters. booksellers sold books of sermons, histories, political and literary satires, literary criticism, and dictionaries. there was a growing popularity of novels. books were expensive to buy. regular magazines on the new and strange were published. there were three daily, six weekly, and ten thrice yearly newspapers. newspapers increased in number from 8 founded in 1700 to a total of 25 in 1727. by 1753, there were over a million throughout the country. workmen usually began their day by reading a newspaper at a coffee house. authors of books which have been registered at the stationers hall had the sole liberty of printing and reprinting such book for 14 years. others who printed or sold or published such forfeited the books and paid one penny for each sheet found in their custody, 1/2 to the queen and 1/2 to the suer. the printer had to give a copy of each book printed to the company of stationers, the royal library, the libraries of the oxford and cambridge universities, and certain other libraries. in 1775, the two universities in england, the four universities in scotland, and the several colleges of eton, westminster, and winchester were given in perpetuity a copyright in books given or bequeathed to them. the british museum was incorporated to hold the collections of robert cotton of manuscripts, books, records, coins, and medals and of hans sloane, which contained rare books, coins, precious stones, pictures, plants, and mathematical instruments and had been left to the public. italian opera was introduced in 1706 by georg handel on his visit to england. his music became the standard music of georgian england. the academy of ancient music was founded in 1710. it set the standard of selection and performance. in existence were the violin (including ones made by stadivari), viola, cello, double bass, oboe, trumpet, clarinet, bassoon, trombone, horn, flute, harp, organ, harpsichord, in which the strings were plucked, and piano, in which the strings are struck by little hammers. orchestras had at least thirty members. many hymns were written. painting by artists developed. gentlemen had portraits painted of their horses and dogs as well as of family. joshua reynolds painted the wealth and beauty of england. painters such as gainsborough did landscapes and dramatic history paintings too, but neither of these sold as well as portraits. scenery was painted for the theater. places of business had signs painted which portrayed animals. coaches were painted with mythological creatures and such. gentlemen collected antique statuary and painting, such as by rembrandt and rubens. in 1711 an academy of painting was founded, which included women painters. the first public exhibition of paintings was in 1760. the society of artists was formed in 1761 and incorporated by royal charter in 1765. this differentiated them from the painter-stainers company of face painters, coach painters, and house painters. the royal academy of london was founded in 1768 to merge all private academies and societies into one official body and to recognize the best artistic work. joshua reynolds was its first president. it was at first financed by the king. under george i, sculptors became distinct from masons. they did monuments and portrait busts of the royal family, nobles, and great men. from italian influence, palladian architecture came into vogue. it was typified externally by a panoramic look achieved by horizontal lines, balanced alternatives of plain wall and openings, and portico with a heavy pediment like the front of a roman temple. stucco was often used to plaster housefronts, flute columns, and ornament pediments. architects took students. designers of engraved, etched, and historical prints were given the sole right to print them for 14 years. copiers had to forfeit 5s. per print. foreigners were now interested in learning about english life, philosophy, and opinion. they learned english to read english literature such as shakespeare. no longer were france and italy the only centers of culture and influence on other nations. by 1713, england was the leading sea power by far. the royal society was still the principal focus of scientific activity. issac newton was its president for several years and drew in more foreigners. its members were mathematicians, chemists, botanists, physicians, engineers, authors, poets, and theologians. papers given there generated much discussion at its meetings. newton opined that small particles attract each other by some force in a similar way that large bodies attracted each other. this force in immediate contact was exceedingly strong and performed chemical interactions, but at greater distances had no effect. also there were local associations and societies. there were learned journals such as "philosophical transactions". drovers bought cattle in the countryside, drove them to big towns, and sold them to fattening graziers or fatted them themselves. then they were driven into town and sold to the wholesale butcher, who sold the carcass to the retail butcher, the hides to the tanner, and the bones to the glue maker. flocks of geese were also driven into towns, after their feet were given a protective covering of tar. there were also middlemen wholesalers for cheese, butter, cloth, and iron. there was a rage of distemper among the cattle so serious that to prevent its spread, the king was authorized by parliament to make regulations for prohibiting the removal or sale of cattle and for the burial of distempered cattle. later, the king was authorized to prohibit the killing of cow calves. no one was to sell any ox, bull, cow, calf, steer, or heifer until he had possession of such for forty days or else forfeit ten pounds, later, the king was authorized to regulate the movement of cattle from one place to another. the main industry of the country was still agriculture. in the countryside, about half the arable land was under the open field system, in which land was cultivated in common. enclosures of land were still taking place. the enclosures were now done by statutory commissions to ensure equitable allotments. agricultural improvements came first to enclosed land, which comprised about half of the agricultural land. in the 1733, jethro tull published a book about his 1701 invention of the seed-drill to first pulverize the soil for cultivation without manure and then to deposit seed at a uniform depth in regulated quantities and in rows instead of being thrown haphazardly. also explained was the horse-hoe to stir the soil about the roots of the plants to preserve moisture, promote aeration, admit warmth, and destroy weeds. there were more horses than oxen in use now in the fields. the horse-hoe was first used by large independent farmers on enclosed land. also invented was a threshing machine with a set of sticks to replace hand threshing with flails. under-drainage as well as irrigation was practiced. lord townshend alternated turnips, grasses, and grain in his fields, and thus provided winter food for his cattle. the two-field crop rotation with fallow periods was often displaced by the three-field system rotating grain crops, legumes, and fallowness. independent farming gave rise to the improvement of breeds of livestock by selective breeding. enclosed land produced 26 bushels of grain compared to 18 bushels for common field land. it produced 9 pounds of sheep fleece compared to 3 1/2 pounds for common field land. overall, soils were improved by being treated with clay, chalk, or lime. artificial pasture was extended and there was increased use of clover, sainfoin, and rye-grass. grain productivity was four times that of 1200. a fatted ox was 800 pounds compared to the former 400 pounds which it weighed from the 1300s to the 1600s. the fleece of sheep increased fourfold. by statute of 1756, persons having rights of common in certain land may, by the major part in number and in value of each's tenement, enclose such land for planting and growth of timber or underwood. every village had a smith, carpenter, and miller. the larger villages also had a potter, a turner, a malster, a weaver, a tanner, and perhaps a mercer or grocer middleman. wheelwrights made ploughs, harrows, carts, and wagons. ploughs had one, two, or no wheels. poor farming families took up extra work in the villages such as making gloves, knitting stockings, or spinning yarn. craftsmen still helped farmers at harvest time. much of the rural population was now dispersed over the countryside instead of being concentrated in villages because so many small holders had sold out due to enclosures of farm land, especially of common land and waste land. the rural working class lived in two room cottages, with low ceilings, small windows, and an earth floor. patience was required for those willing to wait for an existing cottage in a village to be vacated. most laborers did not marry unless and until they found a cottage. ancient custom that a person could build a home for himself on waste land if he did it in one night was ceasing to be respected. farmers usually preferred employing day-laborers than keeping servants. there were many migrant workers, mainly from ireland, for the busy summer haymaking and harvesting. the children of laborers and of small farmers had little schooling because they were needed for work. they scared the birds, weeded the fields, picked the stones, tended the poultry, set beans, combed the wool, and collected the rushes and dipped them in the tallow. farm people relied on well water or rain water collected in lead cisterns. a farmhouse fireplace had pots hung from iron rods. saucepans sat on iron stands, which were stored above the mantel when not in use. spits were rotated by pulleys powered by the upward current of hot air or by a mechanical device. bacon was smoked in the chimney accessible by a staircase or upper floor. there still existed customary freeholders, who owned their land subject to certain customary obligations to the lord of a manor. the people displaced by enclosure became laborers dependent on wages or paupers. their discontent was expressed in this poem: "they hang the man and flog the woman that steals a goose from off the common but leave the greater criminal loose that steals the common from the goose." eventually there was some relief given to the poor workers. by statute of 1773, wastes, commons, and fields having several owners with different interests might by three-quarters vote in number and in value of the occupiers cultivate such for up to six years. however, cottagers and those with certain sheep walks, or cattle pasture, could not be excluded from their rights of common. by statute of 1776, the elizabethan statute restricting locations where cottages could be erected and their inhabitants was repealed because the industrious poor were under great difficulties to procure habitations. land could be rented out at ten times the original value. land was typically rented out for 7, 14, or 21 years. great fortunes were made by large landowners who built grand country estates. the manufacturers and merchants made much money, but agriculture was still the basis of the national wealth. as the population grew, the number of people in the manufacturing classes was almost that of the agriculturalists, but they had at least twice the income of the agriculturalists. the greatest industry after agriculture was cloth. most of this activity took places in the homes, but families could earn more if each family member was willing to exchange the informality of domestic work for the long hours and harsh discipline of the factory or workshop. more wool was made into cloth in the country. dyed and finished wool cloth and less raw wool and unfinished broadcloth, was exported. bleaching was done by protracted washing and open-air drying in "bleach fields". there were great advances in the technology of making cloth. thomas lombe, the son of a weaver, became a mercer and merchant in london. he went to italy to discover their secret in manufacturing silk so inexpensively. he not only found his way in to see their silk machines, but made some drawings and sent them to england hidden in pieces of silk. he got a patent in 1718 and he and his brother set up a mill using water power to twist together the silk fibers from the cocoons into thread in 1719. his factory was five hundred feet long and about five stories high. one water wheel worked the vast number of parts on the machines. the machines inside were very tall, cylindrical in shape, and rotated on vertical axes. several rows of bobbins, set on the circumference, received the threads, and by a rapid rotary movement gave them the necessary twist. at the top the thrown silk was automatically wound on a winder, all ready to be made into hanks [coils] for sale. the workman's chief task was to reknot the threads whenever they broke. each man was in charge of sixty threads. there were three hundred workmen. lombe made a fortune of 120,000 pounds and was knighted and made an alderman of london. after his patent expired in 1732, his mill became the prototype for later cotton and wool spinning mills in the later 1700s. there were many woolen manufacture towns. clothiers might employ up to three thousand workers. at these, the spinning was done by unskilled labor, especially women and children in villages and towns. weaving, wool combing, and carding were skilled occupations. in 1733, clockmaker and weaver john kay invented a flying shuttle for weaving. it was fitted with small wheels and set in a kind of wooden groove. on either side there were two wooden hammers hung on horizontal rods to give the shuttle and to and fro action. the two hammers were bound together by two strings attached to a single handle, so that with one hand the shuttle could be driven either way. with a sharp tap by the weaver, first one and then the other hammer moved on its rod. it hit the shuttle, which slid along its groove. at the end of each rod there was a spring to stop the hammer and replace it in position. the flying shuttle doubled the weavers' output. now the broadest cloth could be woven by one man instead of two. this shuttle was used in a machine for cotton. but the manufacturers who used the flying shuttle combined together and refused to pay royalties to kay, who was ruined by legal expenses. now the price of thread rose because of increased demand for it. the weavers, who had to pay the spinners, then found it hard to make a living. but the process of spinning was soon to catch up. in 1738, john wyatt, a ship's carpenter who also invented the harpoon shot from a gun, patented a spinning machine whereby carded wool or cotton was joined together to make a long and narrow mass. one end of this mass was drawn in between a pair of rotating rollers, of which one surface was smooth and the other rough, indented, or covered with leather, cloth, shagg, hair, brushes, or points of metal. from here, the mass went between another set of rollers, which were moving faster than the first pair. this stretched the mass and drew it into any degree of fineness of thread by adjusting the speed of the second pair of rollers. then the thread went by a flier, which twisted it. after this the thread was wound off onto spindles or bobbins, whose rotation was regulated by the faster pair of rollers. or the mass could be drawn by rotating spindles directly from one pair of rollers. this machine was worked by two donkeys and was tended by ten female workers. because of bankruptcy in 1742, the invention was sold to edward cave, the editor of "gentleman's magazine". he set up a workshop with five machines, each fitted with fifty spindles and worked by water wheels. carding was done by cylindrical carding machines invented by lewis paul. in 1764, the plant was bought by carpenter and weaver james hargreaves. he was watching his wife spin when the spinning wheel tipped over onto its side. it continued to revolve, while the thread, held between two fingers, seemed to be spinning itself, even though the spindle was in a vertical instead of a horizontal position. it occurred to him that a large number of vertical spindles arranged side by side could be turned by the same wheel and that, therefore, many threads could be spun at once. he named his machine the "the jenny" after his wife. this "spinning jenny" could spin a hundred threads at a time. he patented it about 1770. the machine consisted of a rectangular frame on four legs. at one end was a row of vertical spindles. across the frame were two parallel wooden rails, lying close together, which were mounted on a sort of carriage and slid backwards and forwards as desired. the cotton, which had been previously carded, stretched, and twisted passed between the two rails and then was wound on spindles. with one hand the spinner worked the carriage backwards and forwards, and with the other he turned the handle which worked the spindles. in this way, the thread was drawn and twisted at the same time. the jenny did the work of about 30 spinning wheels. no longer did it take ten spinners to keep one weaver busy. but manufacturers refused to pay him royalties for his invention. he was offered 3,000 pounds for his rights in the jenny, but refused it. the courts held that the model of his jenny had been used in industry before it was patented and any rights he may have had were declared to have lapsed. nevertheless, he made over 4,000 pounds. the spinning jenny was used in many homes. richard arkwright came from a poor family and was taught to read by an uncle. he became a barber and made wigs. he taught himself crafts necessary to invent and patent in 1769 a spinning frame worked by a water wheel, which he called a" water frame". he strengthened cotton thread by adding rollers to the spinning process which were able to strengthen the cotton thread and make it of even thickness so that it could be used instead of costly linen as the warp. with capital from two rich hosiers, he set up a workshop next to a swift and powerful river running down a narrow gorge. then he turned his attention to weaving this thread with multiple spinning wheels in the first practical cotton mill factory. in 1773, he set up weaving workshops making pure cotton calicoes which were as good as indian calicoes. this was the first all-cotton cloth made in england. he had confronted and solved the problem of a statute of 1721 which proscribed wearing or using printed, painted, stained or dyed calicoes e.g. in apparel, bed, chair, cushion, window curtain, and furniture, except those dyed all in blue, or else forfeit 20 pounds by a seller, 5 pounds by a wearer, and 20 pounds by other users. the purpose was to provide wool-working jobs to the poor, whose numbers had been increasing excessively because of lack of work. arkwright argued that the statute should not include printed or painted cloth made in great britain in its ancient tradition of fustians with an all linen warp for strength and a cotton weft for fineness. this statute was so "clarified" in 1735. when wool-weavers had expressed their opposition to imported printed cottons and calicoes by tearing them off people, a statute of 1720 provided that any one who willfully and maliciously assaulted a person in the public streets or highways with an intent to tear, spoil, cut, burn, or deface the garments or clothes of such person and carried this out was guilty of felony punishable by transportation for seven years. the prohibition against the manufacture and wearing and using of pure cotton fabrics came to an end in 1774 on arguments of arkwright made to parliament that his pure cottons would bleach, print, wash and wear better than fustians. in 1775, arkwright added machines to do work prefatory to spinning. raw cotton was first fed by a sloping hose to a feeder that was perpetually revolving. from here it went a carding machine of three rollers of different diameters covered with bent metal teeth. the first, with teeth bent in the direction of its revolution, caught up the cotton fibers. the second, revolving in the same direction but much faster, carded the fibers into the requisite fineness by contact with the third, whose teeth and motion were in the opposite direction. next, a crank and comb detached the carded cotton so that it came off as a continuous ribbon. then the ribbon went into a revolving cone, which twisted it on itself. eventually arkwright became rich from his creation of the modern factory, which was widely copied. he established discipline in his mills and he made his presence felt everywhere there, watching his men and obtaining from them the steadiest and most careful work. he provided housing and services to attract workers. after cotton, the inventions of the spinning jenny and the waterpowered frame were applied to wool. silk and cotton manufacture led the way in using new machinery because they were recently imported industries so not bound down by tradition and legal restraint. yarn production so improved that weavers became very prosperous. cards with metal teeth challenged the use of wood and horn cards with thistles on them in carding wool. merchants who traveled all over the world and saw new selling opportunities, and therefore kept encouraging the manufacturers to increase their production and improve their methods. factory owners united to present suggestions to parliament. manufacturing broke loose from traditional confines in several ways. to avoid the monopolistic confines of chartered towns, many entrepreneurs set up new industries in birmingham or manchester, which grew enormously. manchester had no municipal corporation and was still under the jurisdiction of a manor court. it sent no representative to the house of commons. all over the country the justices of the peace had largely ceased regulating wages, especially in the newer industries such as cotton, where apprenticeship was optional. apprenticeship lapsed in many industries, excepting the older crafts. several legal decisions had declared seven years practice of a trade as good as an apprenticeship. apprentices still lived in their masters' houses and were still treated as family members. the regulations of the cutlers' company remained in force as its masters used their great manual skill to make cutlery in their own homes with the help of their children and apprentices. trades in some towns which had guild regulations that had the force of law hung on to their customs with difficulty. although there were few large factories in the country under effective management of a capitalist, trade unionism was beginning as two distinct classes of men were being formed in factories. the factory owner was so high above his workmen that he found himself on the same level as other capitalists, the banker, who gave him credit, and the merchant, who gave him customers. journeymen in factories could no longer aspire to become masters of their trade and no longer socialized with their employers. hard and fast rules replaced the freedom of the small workshops. each worker had his allotted place and his strictly defined and invariable duty. everyone had to work, steadily and without stopping, under the vigilant eye of a foreman who secured obedience by means of fines, physical means, or dismissals. work started, meals were eaten, and work stopped at fixed hours, signaled by the ringing of a bell. factory hours were typically fourteen hours or more. organized resistance, as usual, began not with those most ill-treated, but with those men who had some bargaining power through their skills. wool-combers, who worked next to a charcoal stove where they heated the teeth of the comb, were the most skilled of the cloth industry were hard to replace. since they were nomadic, they quickly organized nation-wide. they agreed that if any employer hired a comber not in their organization, none of them would work for him. they also would beat up and destroy the comb-pot of the outsider. in 1720 and 1749, the tiverton wool-combers objected to the import of combed wool from ireland by burning irish wool in clothiers' stores and attacking several houses. they had strike funds and went on strike in 1749. their bloody brawls caused the military to intervene. then many of them left town in a body, harming the local industry. the earnings of wool-combers was high, reaching from 10s. to 12s. a week in 1770, the highest rate of a weaver. in 1716, the colchester weavers accused their employers of taking on too many apprentices. when the weavers organized and sought to regulate the weaving trade, a statute was passed in 1725 making their combinations void. strike offenses such as housebreaking and destruction of goods or personal threats had penalties of transportation for seven years. still in 1728, the gloucester weavers protested against men being employed who had not served their apprenticeship. when the journeymen tailors in and around london organized a union, a statute made their agreements entering into combinations to advance their wages to unreasonable prices and to lessen their usual hours of work, illegal and void, because this had encouraged idleness and increased the number of poor. tailors' wages were not to exceed 2s. per day and their hours of work were to be 6 a.m. to 8 p.m. for the next three months, and 1s.8d. per day for the rest of the year. a master tailor paying more would forfeit 5 pounds. a journeyman receiving more was sent to the house of correction for 2 months. justices of the peace could still alter these wages and hours depending on local scarcity or plenty. despite this statute, the journeymen tailors complained to parliament of their low wages and lack of work due to their masters calling them to work only about half the year. there was much seasonal fluctuation in their trade as there was in all trades. the slack period for the tailors was the winter, when the people of fashion retired to their country estates. after their complaint, their wages then rose from 1s.10d. per day in 1720, to 1s.8d.2s. in 1721, to 2s.2s.6d. in 1751, to 2s.2d.2s.6d. in 1763, to up to 2s.7 1/2 d. in 1767, and to 3s. in 1775. foremen were excluded from wage control. when they complained of their long hours, which were two hours longer than the 6 a.m. to 8 p.m. of most handicraft trades, their hours were reduced in 1767 by one hour to 6 a.m. to 7 p.m. and their pay was set at 6d. per hour for overtime work at night during periods of general mourning, e.g. mourning for a deceased courtier. their work hours were lowered another hour to 6 a.m. to 6 p.m. in 1768. the stocking frame-knitters guild, which had been chartered in 1663, went on strike to protest the use of workhouse children as an abuse of apprenticeship which lowered their wages. they broke many of their frames, which belonged to their employers, to limit their number. in 1749, combinations to advance wages, decrease hours of work, or regulate prices were declared void for journeymen dyers, journeyman hot pressers, all wool workers, brickmakers and tilemakers, journeymen servants, workmen, laborers, felt and hat makers, and silk, linen, cotton, iron, leather, and fur workers in and around london. the penalty was prison or hard labor at a house of correction for three months without bail. in 1756, justices of the peace were to determine the rates of wages of wool workers according to numbers of yards. but this was repealed the next year to prevent combinations of workers. wage agreements between clothiers and weavers were declared binding. clothiers not paying wages within two days of delivery of work forfeited 40s. in 1763 the silk weavers in east london drew up a scale of wages, and upon its being rejected, 2000 of them broke their tools, destroyed the materials, and left their workshops. a battalion of guards had to take possession of the area. in 1765, the silk weavers marched on westminster to stop the import of french silks. in 1768, the weavers rebelled against a 4d. per yard reduction in their wages, filling the streets in riotous crowds and pillaging houses. after the garrison of the tower came, the workmen resisted with cudgels and cutlasses, resulting in deaths and woundings. the throwsters [those who pulled the silk fibers from the cocoons of the silk worms and twisted them together to make a thread] and the handkerchief weavers also became discontent. a battle between soldiers and silk weavers at their meeting place resulted in several men on both sides being killed. in 1773, wages and prices for the work of journeymen silk weavers in and around london were designated to be regulated by the mayor and justices of the peace. foremen were excluded. no silk weaver could have more than two apprentices or else forfeit 20 pounds. journeymen weavers entering into combinations forfeited 40s. this statute satisfied the weavers, but they formed a union to ensure that it was followed. in 1750, 1761, and 1765, there were strikes which stopped the work of the coal industry and harbor at newcastle for weeks. in 1763, the keelmen formed a combination to force their employers to use the official measure fixed by statute for the measurement of loads of coals. the book "consideration upon the east-india trade" dating from 1701 advocated free foreign trade. it argued that the import of goods from india not only benefited the consumer but also the nation, because it was a waste of labor to use it in producing goods which could be bought cheap abroad. this labor could be better put to use at easily learned plain work in the new industries. also the low cost of imported goods would motivate the invention of machines in the nation which would be even more efficient in manufacturing these goods. but english manufacturers were still suspicious of free trade. making beer and distilling gin from barley were widespread. the pastimes of gambling and drinking were popular with all classes. in the trades, this was promoted by the uncertainties of life and work and a general sense of instability. many london tradesmen started their day with a breakfast of beer, bread, and cheese, the traditional breakfast of countrymen. gambling and dissipation reduced some london men with good businesses to destitution, the work house, or street begging. drunken gentlemen played pranks such as imitating a woman in distress or throwing a person in a horse trough. some innkeepers had "straw houses" where customers who were so drunk they were unable to walk home could sleep in fresh straw. a person could get drunk for a few pence. gambling with cards was a popular pastime after dinner. cricket matches were played by all classes instead of just by humbler people; there were county cricket matches. gentlemen often took their coachmen with them to public events such as cricket matches. tennis was a sport of the wealthy classes. billiards, chess, and games with cards or dice were played, especially in alehouses. there was horse racing on any open ground to which people brought their horses to race. jockeys tried to unseat each other. hunting of rabbits and then foxes replaced deer hunting. bird and duck hunting was usually with flint lock guns instead of hawks, as the hedges provided cover from hawks. there was fishing with line, hook, and bait. watching the hanging of felons, about 35 a year in london, was popular, as was going to bedlam to watch for a fee the insane being flogged. people went to the tower to try to get a glance at a famous prisoner looking through a window or taking a walk along the battlements. besides the grand pleasure gardens for gentry, there were lesser pleasure gardens in london for working families, which offered fresh air, tea, beer, swimming, fishing, courting, bowling, and cheap entertainment. running, vaulting, and leaping were still popular in the countryside. fairs had amusements such as fire swallowers, ventriloquists, puppet shows, acrobats, jugglers, animal performances, pantomimes, boxing, dwarfs, and albinos, but less trading. in 1769 was the first circus. circuses included feats of horsemanship and clowns. there was also eating and drinking competitions, foot races, football, archery, some wrestling, and some bowling on greens or alleys. in winter there was ice skating with blades and sliding. the right of public access to st. james park became entrenched by the 1700s. there was sailing, rowing, swimming, and hopscotch. george iii made sea-bathing popular and it was supposed to be good for one's health. there was steeple chasing as of 1752. horse-racing was given rules. on sunday, there was no singing, music playing, dancing, or games, but the bible was read aloud, prayers were said, and hymns were sung. sabbath-breakers were fined by magistrates. men often spent sunday in a tavern. in general, commodity prices were stable. but when harvests were poor, such as in 1709 when there was famine, and between 1765 and 1775, bread prices rose. the price of wheat in london, which since 1710 had been between 25s. and 45s., rose to 66s. in 1773. then the poor engaged in food riots. these riots were often accompanied by mob violence, burning, and looting of grain mills, shops, and markets. the english economy was so dependent on foreign trade, which had trebled since the 1710s, that the slightest disturbance in the maritime trade threatened the english with starvation. in many localities the men in need of parochial relief were sent around from one farm to another for employment, part of their wages being paid from the poor rates. the poor often went from parish to parish seeking poor relief. settled people tended to fear wandering people. parishes sought to keep down their poor rates by devices such as removing mothers in labor lest the infant be born in the parish. so a statute was passed that a child born to a wandering woman could not have the place of birth as his settlement, but takes the same settlement as his mother. another device to prevent others from establishing settlement in a parish was for its farmers to hire laborers for only fifty-one weeks. also, some apprentices were bound by means other than indenture to avoid settlement. laborers who came to work in industries were refused settlement and sent back to their original parishes whenever they seemed likely to become dependent on the rates. statutes then provided that a parish must give settlement to apprentices bound for forty days there, not only by indenture, but by deed, writings, or contracts not indented. in 1722, parishes were authorized to purchase houses in which to lodge or employ the poor and to contract with any person for the lodging, keeping, maintaining, and employing of the poor. these persons could take the benefit of the work, labor, and service of these poor, which was then used for the relief of other poor. the poor refusing such lodging could not then get relief. many of the poor starved to death. the propertied classes turned a blind eye to the predicament of the poor, opining that they were idle or could save more and did not need higher earnings. charitable organizations gave to the poor and set up all day sunday schools to set wayward children on a moral path. the sunday schools could accommodate children who worked during the week. punishment of children by parents or others could be by whipping or even sitting in stocks. about half of the people were dependent on poor relief or charities. desertion by a man of his family was a common offense. parishes providing upkeep for the family sent men to find the errant husbands. the parish would ask unmarried mothers who was the father of their child and then force him to marry her or pay for the upkeep of the child. he often made a bargain with the parish to release him of his obligation for a sum of money paid to the parish. but many young parish children died of neglect, and later, parishes were required to list children under four to aid in accounting for them. divorces were still few and expensive, but increasing in number; there were more 60 in this period. it was easier for a man to get a divorce for one act of adultery by his wife, than for a wife to get one for habitual unfaithfulness. vagrants and other offenders could be committed to houses of correction as well as to county gaols, because of the expense of the latter. crime was exacerbated by orgies of liquor drinking by the common people, especially between 1730 and 1750, the sale of which did not have to be licensed as did ale. in 1736, it was required that retailers of brandy, rum, and other distilled spirituous liquors be licensed and to pay 50 pounds a year for their license, because excessive use had been detrimental to health, rendering persons unfit for useful labor and business, debauching their morals, and inciting them to vices. only persons keeping public victualing houses, inns, coffee houses, alehouses or brandy shops who exercised no other trade were allowed to obtain a license. this excluded employers who had sold liquors to their journeymen, workmen, servants, and laborers at exorbitant prices. street vendors who sold liquors had to forfeit 10 pounds. a duty of 20s. per gallon was imposed on the retailers. there were riots in london against this statute and its new duties. there had been a tremendous growth in liquor drinking, which did not stop but went underground after this statute. in 1753, a penalty of 10 pounds or hard labor for two months was made for selling spirituous liquors without a license. also licenses were restricted to people who were certified by four reputable and substantial householders to be of good fame and sober life and conversation. sellers had to maintain good order in their premises or else forfeit 10 pounds. about 1754 only innkeepers, victualers, and vendors paying rent of at least 200 shillings could sell gin at retail. the punishment for the second offense was whipping and imprisonment. that for the third offense was transportation out of the country. in 1751, additional duties were placed on spirituous liquors to discourage immoderate drinking going on by people of the meanest and lowest sort to the detriment of the health and morals of the common people. in 1761, these duties were again raised. in 1768, officers were authorized to seize all horses, cattle, and carriages used to transport foreign spirituous liquors for which duties had been evaded. in 1773, the penalty for selling without a license was raised to 50 pounds, which could not be mitigated below 5 pounds. half the forfeiture was to go to the suer. the informer system for enforcing laws had its drawbacks. informers were not trained and were sometimes retaliated against for informing. sometimes this meant being tortured to death. sometimes there were schemes in which a leader of thieves, would take a profit in the stolen goods by posing as a good citizen who tracked down and returned them to the owners for a fee. also he might inform on his companions to get the reward for informing or to punish a troublesome one. sometimes the owner of goods was involved in a fake robbery. an effort in 1749 to turn the whole haphazard system of informers, into a specialized organization for the detection and apprehension of criminals had caused a mob to form and make threats. englishmen associated a police force with french tyranny. nevertheless, about 1750, sir john fielding, a bow street magistrate, and his half-brother picked men to police the street under the direct control of the bow street magistrates. this first police district made an impact on the increasing violence of the times. in 1753, a proposal before parliament to have a national census was also defeated by public fear of liberty being curtailed by having to make account of the number and circumstances of one's family and giving out information that could be used by enemies both in the realm and abroad. in 1714, the mercury thermometer was invented by gabriel fahrenheit of germany; this was much more accurate than the alcohol and water thermometers. sweden's anders celcius invented the celsius scale. the hydrometer, which measures air humidity, was also invented. these made possible weather forecasting. in 1718, the french chemist etienne geoffroy published a table of affinities among chemical substances, a precursor to the periodic table of elements. carolus linneaus, a swedish naturalist and botanist, established the scientific method of naming plants and animals by genus and species. when he showed that there was a sexual system in plants, church authorities were so shocked that they suppressed this knowledge as they did other scientific knowledge. rev. stephen hales made ventilators for ships, prisons, and granaries, using the method of injecting air with bellows. this saved many lives in the prisons. in 1727, he discovered that water that plants lost by evaporation was restored by the roots up the stems. he found that gas could be obtained from plants by dry distillation and invented a way to collect gases by heating certain substances. hans sloane, the son of a receiver-general of taxes, who became a physician, had collected hundreds of species of plants in jamacia while physician to its governor. he became physician to george ii and was a benefactor to many hospitals and devised a botanic garden in london for the society of apothecaries. italian luigi marsigli started the science of oceanography with a treatise discussing topography, circulation, ocean plants and animals, along with many measurements. frenchman jean-etienne guettard prepared the first true geological maps, showing rocks and minerals. he identified heat as the causative factor of change in the earth's landforms. john mitchell studied earthquakes. in 1735, george hadley, a london lawyer and philosopher, determined that the cause of the prevailing westerly winds was the rotation of the earth to the east. benjamin franklin in 1743 observed that a particularly violent storm occurred in boston a day after a particularly violent occurred in philadelphia, and realized that they were the same storm, even though the storm's surface winds were from the northeast. he determined that atlantic coastal storms traveled from the southwest to the northeast. in 1770, he prepared the first scientific chart of the gulf stream. daniel bernoulli, a swiss university lecturer in physics, mechanics, medicine, and anatomy, proved his theorem that any degree of statistical accuracy can be obtained by sufficiently increasing the observations, thereby also representing the first application of calculus to probability theory. in 1738, he showed that as the velocity of horizontal fluid flow increases, its pressure decreases. this followed from his theorem that the total mechanical energy of a flowing liquid, comprising the energy associated with fluid pressure, the gravitational potential energy of elevation, and kinetic energy of fluid motion remains constant; that is, the mechanical energy is conserved. this was the first mathematical study of fluid flow. he demonstrated that the impact of molecules on a surface would explain pressure, and that assuming the constant random motion of molecules, pressure and motion will increase with temperature. he explained the behavior of gases with changing pressure and temperature, establishing the kinetic theory of gases. jean nollet from france discovered osmosis, the passage of a solution through a semi-permeable membrane separating two solutions with different concentrations. in 1754, scotsman physician joseph black identified carbon dioxide, the first gas recognized as distinct from everyday breathing air. he did this by using a balance to weigh alkalies before and after exposure to heat. they lost weight by losing carbon dioxide. his development of the concept of latent heat, the quantity of heat absorbed or released when a substance changes its physical phase at constant temperature, was the first application of quantitative analysis to chemical reactions. he ascertained the effects of carbon dioxide on animals and its production by respiration, fermentation, and burning of charcoal. at this time, all flammable materials were thought to contain "phlogiston", which was given off as they burned and was associated with the transfer of heat. plants were thought to remove phlogiston from the air and therefore burned when they were dry. in 1773, joseph priestly, a nonconformist minister, schoolmaster, and tutor, discovered oxygen by heating red oxide of mercury. he became interested in the study of gases by watching the process of fermentation in a brewery next to his house. his gas collection techniques enabled him to work with gases soluble in water. he showed that the processes of combustion, respiration, and putrefaction caused one-fifth of air exposed over water to disappear, and that plants restored air vitiated by these processes. when he isolated oxygen, he noted that it was better than air in supporting respiration and combustion produced by heating certain metallic nitrates. it was called "respirable air". hydrogen (inflammable air) and nitrogen were discovered. the differences between acids, bases, and salts and their relationship to one another became understood. there was some theoretical as well as empirical knowledge about metals, e.g. in boiling points, intermetallic compounds, and changes in properties. in 1742, benjamin frankin invented the franklin stove, which greatly improved heating efficiency. as a freestanding cast-iron fireplace, it supplied heat in all directions instead of only from the one direction of the usual wall fireplace. also, the heat absorbed by its cast-iron sides provided warmth even after the fire went out. static electricity was being discerned. it had been noticed that shaking a mercury barometer produced a strange glow in its "vacuum". experiments showed that a glass rubbed in vacuo would shine brightly and that an exhausted glass globe rapidly whirled on a spindle and rubbing against the hand produced a brilliant glow. and further, as newton wrote: "if at the same time a piece of white paper or white cloth, or the end of ones finger be held at the distance of about a quarter of an inch or half an inch from that part of the glass where it is most in motion, the electric vapor which is excited by the friction of the glass against the hand, will by dashing against the white paper, cloth, or finger, be put into such an agitation as to emit light, and make the white paper, cloth, or finger, appear lucid like a glowworm". in the study of electricity, conductors and insulators were recognized. there were demonstrations of electrical phenomena such as seeing the ignition of brandy by a spark shooting from a man's finger and the feeling the transfer of an electrical impulse created from a rubbed glass globe among a circle of people by their holding hands. in 1733, frenchman charles dufay discovered that there are two types of static electric charges, and that like charges repel each other while unlike charges attract, linking electricity to magnetism. in 1750, benjamin franklin "caught" lightning with a sharp pointed wire attached to the top of a kite which led down to a key at the other end. when a thunder cloud electrified the kite, a charge was seen coming from the key to an approaching finger. this charge was then stored in an early type of capacitosr, a1745 leyden jar, and then reproduced to create the same feeling of transfer of electrical impulse among a circle of hand-holders, thereby illustrating that it was the same phenomenon as electricity. this countered the theological belief that thunder and lightning were signs of divine displeasure or the work of the devil. franklin invented the lightening rod, which was then used to protect buildings. about ten years later, the first lightening rod on an english church was erected, which showed the church's acceptance of his theory. franklin theorized that there were electric charges everywhere and designated them as positive or negative. he observed that opposite charges attracted each other, but that like charges repelled each other. in 1766, joseph priestly did an experiment suggested by franklin and showed that electrical force follows the same law as gravitational force; that is, that the attraction or repulsion between two electrical charges varies inversely in proportion to the square of the distance between them. joseph-louis lagrange from france developed differential equations. natural history museums were established. a group split off from the royal society to show collections of curiosities. in 1754, a self-educated mechanic founded the society for the encouragement of arts, manufactures, and commerce. it had sections on agriculture, manufactures, mechanics, chemistry, liberal arts, and trade and colonies. it sponsored contests at which prizes were given, such as that in 1761 for the best invention of a machine that would spin six threads of wool, flax, cotton, or silk at one time with only one person attending it. machines still mostly relied on human, animal, and water power. abraham darby was a quaker and millwright who made large cooking pots of iron, which cost less than bronze. around 1709, he experimented with various substances to take the place of wood charcoal in iron smelting. coal was a remote possibility. in forging or working metals coal had more or less the same qualities as wood charcoal, but this was not the case in smelting ores, especially iron ore. coal contained sulphur compounds which caused the iron ore to deteriorate. so he controlled the burning of coal to burn out these impurities, which produced coke. his son took over after his death and improved the methods of coking, strengthened the bellows, and added ore limestone and other reagents to the mixture. by 1756, his large blast furnace using both pit coal and wood charcoal was very productive. he made iron goods of such quality as those imported. in 1767, richard reynolds replaced the wooden rails connecting a blast furnace to mines with cast iron rails. he had apprenticed as a grocer and then became a partner in a large ironworks of darby with a man whose daughter he married. after darby died and before darby's sons became of age, reynolds was in charge of the ironworks. he cast cylinders of the early steam engines. in 1749 john roebuck, a physician and son of a prosperous manufacturer of sheffield goods, found a cheaper way to manufacture sulphuric acid. he did this by using leaden chambers instead of glass globes to collect the vapor from burning nitre and sulphur over water. this reduced the cost of sulfuric acid to one-fourth of its previous cost, so that sulfuric acid came to be used to bleach linen instead of sour milk. he also made cast iron into malleable iron by smelting iron using coke from pit-coal instead of charcoal. but flooding in his mines and further ventures resulted in his ruin and bankruptcy. thomas newcomen, a baptist ironmonger, blacksmith, and locksmith, supplied iron tools to mine workers. he was aware of the problem of flooding of mines and the awkward system of pumps which were used one above the other and were powered by teams of horses. he made a very valuable contribution to power generation by inventing the atmospheric pressure steam engine with piston around 1712. he did this by connecting theory with experiment, through the use of scientific knowledge, especially the royal society's investigation into atmospheric pressure. first cold water was poured on a cylinder in which a piston could move up and down. this caused steam inside the cylinder to cool and condense into water. the vacuum created inside the cylinder under the piston caused atmospheric pressure on top of the piston to push the piston down. the piston was attached by a rod to the end of a beam which end then swung down from a point on a vertical stand to which it was attached. when the beam swung, its other end, which was attached to a rod connected to a pump, rose, thus working the pump. then steam from water heated in a boiler under and communicating with the cylinder was allowed into the cylinder under the piston. this overcame the atmospheric pressure on the piston from above and allowed the piston to rise by a counterweight on the rod over and connecting to the pump. boys opened and closed the steam valve, which let steam into the cylinder from below, and the water valve, which let cold water pour on the cylinder from above. then the boys were replaced by the valves being connected to the swinging beam which caused them to open and close at perfectly regular intervals. a story gives the credit for this improvement to an inventive valve boy who wanted to play with his friends. in 1712, the mining industry used this steam engine to pump water out of mine-shafts which had flooded. these engines were also used to supply water to reservoirsâ� locks at canals, and drinking water facilities in towns. one such engine developed power equivalent to fifty horses working at one sixth the cost. it was the first automatic machine since the clock. then james watt invented the steam engine which used steam as a force acting on the piston. watt made his living making scientific instruments for glasgow university. around 1764, he was fixing one of newcomen's engines belonging to the university, when he saw its inefficiencies, such as the loss of heat when the cylinder was cooled. he saved this heat energy by having the steam condensed in another vessel distinct but connected to the cylinder. this condenser was kept constantly cool by cold water. so the condensed steam was pumped back into the boiler and it circulated continuously, thus obviating the need for constant resupply of water. in order to avoid the necessity of using water to keep the piston air-tight, and also to prevent the air from cooling the cylinder during the descent of the piston, he used the expansion of the steam to push the piston instead of atmospheric pressure. then, in order to expand the use of the steam engine beyond that of a pump, he converted the oscillating motion of the beam into rotary motion. he formed a partnership with john roebuck, who had a two-thirds interest. but when roebuck needed money, he sold his interest to matthew boulton. boulton wanted better power that that of his watermill for his workshops that made metal buttons, watch chains, shoebuckles of engraved steel, ornamental bronzes, vases, chandeliers, tripods, silver and plated wares, and imitation gold and tortoiseshell work. in dry weather, about eight horses were needed to aid in driving the machinery. a steam pump could pump water from the bottom of the watermill to the top to be used again. he had built up this factory of five buildings and six hundred workers, with 9,000 pounds derived from his marriage to an heiress. by 1774, the partnership had built a model steam engine with rotary power whose design could be sold. the price of the engine was set as the amount of money saved on fuel costs in the first three years of its operation. this machine was a relatively economical user of energy, capable of performing almost any kind of work. about 1750, john wilkinson, the son of a farmer who also oversaw an iron furnace, substituted mineral coal for wood charcoal in the smelting and puddling of iron ore. in 1766, he made it possible to transport coal out of mines on rail wagons drawn by horses. as father of the iron industry, he made iron chairs, vats for breweries and distilleries, and iron pipes of all sizes. with his invention of the first precision boring machine, he provided watt with metal cylinders of perfectly accurate shape, which were necessary for the smooth working of watt's steam engine. in 1775 he bought a pumping steam engine from boulton and watt's company for his ironworks. it pumped three times as fast as newcomen's engine. watt's steam engine came to be used for power-loom weaving and then for all sorts of manufactures. it would put england ahead of every manufacturing country in the world. millwrights built, installed, and later designed not only steam engines but the machinery that they drove. these men were essential in setting up the first factories. they were the most imaginative and resourceful craftsmen. they knew how to use a turner's, a carpenter's and a blacksmith's tools and had supervised or done smith work, brick-laying or stone-mason's work in erecting and maintaining windmills with their many gears and bearings. there was a good deal of variety in mills, as well as in the structure and workmanship of them, some being worked by horses, some by wind, and others by water. they had some knowledge of arithmetic and practical mechanics. they could draw out a plan and calculate the speed and power of a wheel. although technically in a branch of carpentry, the millwrights learned to work with metal as well. metal was superior to wood not only because of its strength but because wood parts were irregular in motion and wore out rapidly. so iron and brass parts came to replace wood and leather parts. in 1728, j. paine got a patent for rolling iron instead of hammering it. the iron bars, being heated in a long hot arch or cavern passed between two large metal rollers, which had certain notches or furrows on their surfaces. clockmaker and quaker benjamin huntsman was struck with the difficulty of finding finely tempered steel for the springs of his watches and pendulums of his clocks. he experimented for years to find a homogeneous and flawless metal, and finally, in 1740, invented cast steel, which had high tensile strength and was much harder than ordinary steel. he did this by remelting refined high quality wrought iron bars at very high temperatures in sealed fireclay crucibles, together with small quantities of charcoal and ground glass as reagents. this distributed the carbon evenly in the metal, which hammering could not do. he approached the sheffield cutlers, who finally agreed to try his cast steel for fear of losing their business to some other manufacturers who were approaching huntsman. since huntsman had no patent, he worked at night and employed only men who would keep his secret. his steel was made at night. his factory became prosperous about 1770 and the excellence of his steel manufacture was never equaled. steel and wrought iron was scarce and expensive. around 1748, iron founder samuel walker, discovered huntsman's secret by appearing at huntsman's factory disguised as a shivering tramp who asked to warm himself by the furnace fire. he feigned sleep while watching the whole process. when he began to make cast steel, his annual output grew from 900 pounds in 1747 to 11,000 pounds in 1760 and he made a fortune. silver was plated over copper from 1751. white metal from tin and antimony was used from about 1770. the brass industry was beginning to produce brass from copper and zinc that was as good as foreign brass. the secret of plate-glass manufacture came to england in the 1770s. in 1773, a corporation was set up for the manufacture of plate glass. it could raise joint-stock because of the great risk and large expense of the undertaking. in 1775, chemist william cookworthy was given a fourteen year patent for the discovery of certain clay and stone in england from which he made england's first true porcelain, i.e. that which could sustain the most extreme degree of fire without melting, and also had grain as smooth and lustrous, and the transparency and beauty of color, equal in degree to the best chinese or dresden porcelain. the import duties on diamonds, pearls, rubies, emeralds and other precious stones and jewels was dropped to increase the business of cutting and polishing them. the world's first chocolate factory was set up in england in 1728. milk was added to chocolate. the fanmakers were incorporated in 1709. a linen company to sell cambricks [a fine white linen] and lawns [a thin and fine linen] was incorporated in 1763. a free market for fish was established in westminster to supplement the free fish market in london to prevent forestalling and monopolizing of the fish industry and to increase the number of fishermen. duties for its maintenance were paid by the fishermen. certain men were given the right to incorporate fisheries of white herring for twenty one years to improve the fisheries and give employment to the poor. they were authorized to sell subscriptions and to build ships provided the fishery employ 100,000 in such fishery. there were restrictions on taking fish from rivers during their breeding season. herring fishermen were allowed to land and dry their nets and erect tents and pickle, cure, and reload fish on uncultivated land up to 100 yards beyond the high water mark all any shore, forelands, harbors, and ports, without paying the landholder. later, a bounty of 30s. per ton was authorized to be given for vessels that were fitted out and used for white herring fishery. anyone wishing to be admitted to the levant (turkey) trading company was to be made free of such on paying 20 pounds, so that this trade might be increased. in the 1760s the first cooking school was established by mrs. elizabeth raffald, a servant. as for health, there were many occupational hazards. these included paralysis by mercury of refiners of silver and gold, paralysis by mercurial fumes of molten lead by plumbers, palsy of glaziers working with melted lead and of watch gilders, lead poisoning of painters, blinding by sawdust of sawyers, and the affects of fumes on pewterers and letter founders. particles of copper were breathed in by copper workers, whose hair and beards then turned green. braziers became deaf. hairdressers, bakers, masons, bricklayers' laborers, coal heavers, chimney sweeps, flax and feather dressers, and workers in leather warehouses suffered pulmonary diseases. chimney sweeps also had warty skin cancer from their bodies being habitually covered with soot and the lethal cancer of the scrotum. working with charcoal fires affected confectioners, chocolate makers, and sail-cloth makers. tanners, catgut makers, and tallow-candle makers became nauseous. heavy work weakened many bodies and caused hernias. bending over work for long hours caused stooped posture and hump backs. the association between dirt and disease was just beginning to be made. the principles of infection and hygiene were not well understood. bathing every couple of months was not unusual. there was some theological feeling that cleanliness betokened pride and filthiness humility. most houses had a bathtub that could be placed beside the fire in a bedroom. about 80% of the population had been getting smallpox, which blinded, maimed or disfigured many. deaths from smallpox were only occasional in the country, but constant in london, where about 13% of every generation died from it. making death commonplace, especially in the winter months when thick, dirty clothes were worn day and night, were typhus, which was carried by lice; typhoid, which was spread by flies from horse dung; tuberculosis; and influenza. dysentery and diarrhea made death commonplace especially in the summer when flies transmitted bacteria from filth to food and the water was its most foul. there was great meaning in the prayer "now i lay me down to sleep; i pray the lord my soul to keep; if i should die before i wake, i pray the lord my soul to take." thyphus spread easily in hospitals and gaols where vermin could live in the beds made of wood. colds and toothache were also common. venereal disease was not uncommon among the well-to-do in london. condoms were used to deter disease, but were still crude, coarse, uncomfortable, and unreliable. london had almost double the mortality rate of the nation. the number of baptisms in london were about 80% of its burials. about 40% of the deaths in london were among children under two, due to infantile diseases fostered by malnutrition, maternal ignorance such as giving babies adult food, ill-health, bad water, dirty food, poor hygiene, and overcrowding. many children died from diptheria, measles, scarlet fever, and smallpox. ten or twelve children with three or four surviving was a common family pattern. many well-to-do in london kept their children in the country for their better health. no matter what the ailment, physicians regularly bled patients and often gave them enemas with wooden funnels. sometimes a blister or irritant was applied to the skin to draw out the evil humors. cupping was used to provide suction to remove pressure from various parts of the body. also used were poultices, ointments, and herbal treatments, notably quinine. opium was given to deaden pain. there were about 70 drugs in use. charms, spells, astrology, and folk remedies still played a major role in medicine. a physician attended surgeries to give advice. physicians could visit apothecary shops once a year and throw away any drugs falling below an arbitrary standard of excellence. in 1703 the house of lords decided a jurisdictional contest between the college of physicians and the society of apothecaries. it permitted the apothecaries to direct the remedies as well as to prepare them, although they could only charge for the drugs they provided. the poor sought advice from apothecaries. there was progress in health. scurvy virtually disappeared as a cause of death due to the eating of more vegetables. people were cleaner when wearing cotton, which had to be washed. in 1721, free inoculations for smallpox began in england, pioneered by lady mary wortley montague, also a poet and letter writer. she led the way by having herself and her son inoculated. theologicians denounced this practice as a diabolical interference with disease sent by providence for the punishment of sin. sarah wallen mapp was a famous bone-setter. in 1727 surgeon william cheselden, whose master was specially licensed to perform the operation of removing stones in the hospital, reduced the death rate for removing stones due to hemorrhage, shock, and infection down to 17% by his invention of a lateral operation. he also published an anatomy book and treated certain kinds of blindness by forming an opening in the eye to serve as an artificial pupil. in 1736, claudius aymand conducted the first successful appendectomy. nutritional deficiency diseases were beginning to be understood. in 1753, james lind, a surgeon in the navy who noted that more men died of scurvy than in battle, published his work on his dietary controlled experiment on seamen showing that oranges, lemons, limes, green food, and onions cured scurvy. he published his methods of prevention and cure of malarial fevers and his method of disinfecting ships with the smoke of wood and gunpowder. in 1761, he discovered that steam from salt water was fresh, and proposed a method of distillation to supply ships with fresh water. in 1761 giovanni morgagni from italy opined that disease resulted from a breakdown of organs and tissues that was viewable on autopsy. he wrote an extensive book showing the anatomy of diseases, e.g. affections of pericardium and aorta, (e.g. aneurysm), valve diseases, ulceration, rupture, dilation, and hypertrophy. he associated clinical observation with anatomy of disease. for example, pain on the left upper chest, numbness of the left arm, and difficulty breathing occurring together with exertion were associated with dilation of the aorta and hardening of arteries, which caused delay of blood in the aorta, in the heart, and in the lung vessels. bernoulli showed that the living human body constantly changes so that all its particles are renewed in a certain number of years. stephen hale described the first quantitative estimate of blood pressure and fundamental characteristics of blood circulation. in 1728, frenchman dr. pierre fauchard, the father of dentistry, recommended rubbing one's teeth and gums with a piece of sponge. since three out of four babies died shortly after birth, beds in hospitals for pregnant women were established starting in 1739. the next year physicians began to replace midwives. a hospital was established for abandoned foundling children in 1739 so they wouldn't die, as they usually did, in the care of parishes or workhouses or be exposed in the streets or left on door steps of the wealthy. it was besieged by women with babies in their arms. in 1762 a statute made the principles of the foundling hospital obligatory for all london parish children under six; they were to be sent to nurses outside london who were to be paid at least 2s. a week by the parish. in 1766, this was extended to all parishes, and nurses who cared for a child well for a year was given a reward of at least 10s. also, parish children were not allowed to be apprenticed for more than seven years or until age 21 and an apprentice fee of at least 4 pounds, 2s. was to be paid to the master or mistress by the parish. after 1740, there was a steady growth of population due to improved midwifery. william smellie taught scientific midwifery in london from 1741 and wrote a "treatise on midwifery" in 1752, which had a clear explanation of the mechanism of labor. at this time there were several maternity hospitals. forceps existed for difficult deliveries. in 1750, dr. cadogan wrote his book: "an essay on the nursing and management of children, which made a great improvement in the care of young children. for instance, it recommended loose clothing, no tight swaddling clothes, and a simple diet. swaddling clothes were used to retain a baby's evacuations but produced discomfort and serious skin conditions. a hospital was founded for venereal diseases in 1746, another as an asylum for the penitent and orphaned girls who might otherwise be inclined to prostitution, and yet another for prostitutes in 1758. coitus interruptus was widely used for birth control. there were also clandestine abortions and intentional neglect of newborns. melancholy was widespread. suicides were frequent and drugs were sold for this purpose. in 1725, the mentally ill were classified as curable or incurable. there were many private asylums. a lunatic who was furiously mad and dangerous was required to be safely locked up or chained in his place of settlement. there were frequent and dangerous abuses in madhouses, so in 1774, no one was to keep or confine more than one lunatic without a license granted by the royal college of physicians or else forfeit 500 pounds. a justice of the peace and a physician inspected all madhouses to observe conditions and care of patients there. if refused admittance, the license was forfeited. in 1712 was the last time a monarch touched a person to cure him of a malady such as scrofula. in 1743 surgery students began to dissect corpses with their own hands to better learn anatomy. in 1744 the company of surgeons was separated out of the company of barber-surgeons. the barbers were proscribed from performing surgery and had to have a separate corporation from the surgeons because of the ignorance and unskillfulness of barbers healing wounds, blows, and hurts e.g. by blood letting and drawing of teeth. there was a surgeon's hall, officers chosen by the surgeons, and bylaws. the surgeons were required to examine candidates for the position of surgeon in the king's army and navy. they were exempted from parish, ward, and leet offices, and juries. in 1752, a statute provided that the corpses of murderers were to be sent to the surgeon's hall to be anatomized, for the purpose of deterring murders. the penalty for rescuing the corpse of a murderer was to suffer death. the first dispensary for the poor was established in 1769 to give free medicine and treatment to the infant poor, and then to the infants of the industrious poor. the progress of science was seen to threaten the authority of the church. there was a general belief in god, but not much attention to jesus. feared to come were free thought, rationalism, and atheism. there was still a big gap between local parsons and bishops, who were educated, well-off, and related to the aristocracy. on the whole, preachers talked about morality and christian belief. they stressed good works and benevolence. but many protestant clergy were more concerned with their own livings than with their parishioners. they were indolent and did not set a good example of moral living. from 1715, freemasonry spread and swiftly provided a spiritual haven for those who believed in god and desired ritual and mysticism. about 1744, john wesley, the son of an anglican clergyman, became a religious leader for mining and industrial laborers, who were crowded into the slums of industrializing cities, and largely ignored by the church of england. he had been led to this by a profound religious experience. he led an evangelical revival with a promise of individual salvation. he lead an aesthetic life, eating bread, and sleeping on boards. the person to be saved from the horrors of eternal damnation in hell was to discipline himself to regular prayer, self-criticism, and hard work and to forsake worldly pleasures such as drinking, overeating, and even frivolous talk. this methodical regularity of living led to the movement being called methodist. wesley believed in witchcraft and magic. he opined that bodily diseases and insanity could be caused by devils and that some dreams are caused by occult powers of evil. the methodists engaged increasingly in philanthropic activities. they gave to the poor, and visited the sick and the imprisoned. wesley preached in the open air where all who wanted to attend could attend and also wear whatever clothes they had. large crowds of poor people gathered for these meetings. crowds of poor people were generally feared because of their mob potential. these methodist meetings were stormed as were quaker meetings, with shouts of "the church in danger". the methodists' homes were invaded and their belongings destroyed or taken or their persons beaten with tacit permission of authorities. some justices of the peace drafted preachers into the army or navy as vagabonds. eventually, however, the methodist revival imbued energy and piety into the lethargic clergy of the established church. a new moral enthusiasm and philanthropic energy grabbed the nation. prisons were reformed, penal laws made more wise, slave trade abolished, and popular education given momentum. in the established church, charity gained precedence over theology and comfort over self-examination and guilt. evangelist george whitfield preached calvinism and it split off from methodism. then calvinism went into full decline. presbyterianism collapsed into unitarianism and a general tendency towards deism developed. church sanctuary was abolished for those accused of civil offenses. there was much travel by scheduled coaches, which usually carried several passengers and were drawn by four horses. regular service of public vehicles to and from london went four miles an hour; it took two days to go from london to oxford. it was not unusual for a coach to bog down or overturn. sometimes it had to detour around an impassable stretch of road or borrow a couple of oxen from a nearby farm to get out of a quagmire. men and horses drowned in some of the potholes. robbery was endemic and some of the roads were so unsafe from highwaymen that bands of armed horsemen were hired to accompany the coaches. it was not unusual to come across gibbets for hanging at crossroads. in london inns at coach stops, there were casual workers who were associated with gangs of thieves specializing in passengers' goods. these workers would inform their associate thieves of specific goods that had been loaded onto certain coaches, which were then robbed selectively. traveling merchants preferred packhorses to carts because they could cross overland or through watercourses more easily. these pack horses traveled in regular caravans in single file. the leader had a bell around his neck to warn, from a distance, riders or carts coming in the opposite direction. carts traveled about two miles an hour. in 1711 the trustee system superseded administration by the justices of the peace of the turnpike system, including tolls and toll booths. the toll booths were frequently attacked by riotous mobs. so anyone pulling down or destroying turnpike gates at which tolls were to be paid went to prison or was put to hard labor in a house of correction for three months without bail. he was also whipped in the market place between 11:00 and 2:00. if he offended a second time, he was transported for seven years. later the penalty of prison up to three years was added as an alternative. the hundred had to pay the damages up to 20 pounds. the penalty for threatening the toll collector or forcibly passing through was 5 pounds for the first offense, and 10 pounds for the second offense with imprisonment for one year for those who couldn't pay. by 1750, about 60 miles could be made in a day. the turnpike trusts took over most of london's major highways during the 1700s. there was no travel on sundays until 1750. in 1745, shocked by the difficulty caused by bad roads in concentrating the royal army to stop the scottish invasion, the king began systematically to improve all the roads. there was much road and highway widening and repair, and also river bank and pier repair, going on all over the country. marsh lands were drained. harbors were deepened. there were numerous statutes trying to adjust the needs of travel with the condition of the roads. for instance, there had to be a pole between wheel horses or double shafts. carriages, wagons, or carts drawn by more horses, oxen, or animals, or with very heavy loads, or with wheels bound with iron tires were observed to cause more damage, so they were restricted or had to pay higher tolls. then broad and smooth iron tires were observed to not cause the amount of damage as did narrow or irregular iron tires and their use was encouraged. from 1741, weighing machines were kept at toll gates. by 1766, turnpike roads had to be at least 30 feet wide, and hedges and fences thereon had to be taken down by their owners. cartways to markets had to be at least 20 feet wide, and horseways 3 (later 8) feet wide. there were ditches, drains, and gutters to carry off water. names and abodes of owners were to be put on carriages, wagons, and carts or forfeit 2-5 pounds, except for carriages or coaches of a nobleman or gentleman for his private use or those drawn by only one horse or two oxen, or those with wide wheels and a light load. there were town name signs, direction posts, and milestones. in 1773, the surveyors and the commissioners of turnpikes were given authority to requisition local men, carts and draught animals for compulsory labor, or money instead, in maintaining the roads and making new ditches and drains. they could take any local sand, gravel, chalk, or stone from waste or common land or, if not needed by and satisfaction was made to the owner, from enclosed land. the surveyor was to be chosen locally for a year and could be given an allowance. new roads required the consent of the landowners and a negotiated price. a driver of a carriage, wagon, or cart on the public highway who by negligence or misbehavior caused any hurt or damage to a person or any other carriage or hindered free passage of any other carriage was to forfeit up to 20s. anyone leaving an empty cart or other obstruction on a public highway was to forfeit up to 20s. any cart, wagon, or carriage driven without a person on foot or on horseback leading it had a forfeiture up to 20s. any driver of an empty cart, wagon, or carriage who refused or neglected to make way for any coach or loaded cart, wagon, or carriage was to forfeit up to 20. any offender could be apprehended without warrant by anyone who saw his offense, and who was then to deliver him to a constable or other peace officer. by 1719, the mail service was well-regulated. letter rates within 80 miles of london were 3d. per piece of paper, then 12d. per ounce. within 60 miles of new york city in america there were 4d. per piece of paper, then 1s.4d. per ounce. letters were still carried by post horses. from london to new york, they were 1s. per piece of paper for the first three pieces, then 4s. per ounce. in 1765, this rate was extended to all colonial ports. in 1754, canals began to be constructed linking the main rivers. the barges were hauled by horses or men from the land near the river's edge. now goods of many inland towns cheapened and reached a national instead of just a local market. in 1761 an almost illiterate man called james brindley cut the first real canal at worsley for the duke of bridgewater, who owned the coal deposits there. he kept the line of the canal at one level to avoid having to make locks. it crossed one river as a forty foot high aqueduct. he refused to use the beds of small rivers, whose sluggish flow gave no adequate security against silting. coal at the destination point of manchester fell to half its former price. after wedgwood headed a campaign to persuade parliament to construct a certain canal, he bought adjacent land on which he built his great factory. in 1713, the maximum interest rate that could be charged was reduced to 5% for the advancement of trade and improvement of lands because that rate was the norm in foreign lands. thus the maximum interest rate fell from 10 to 8 to 6 and then to 5%. when issac newton was master of the mint, he noted that too restricted a currency caused a high interest rate to prevail, which was bad for commerce and the plans to set the poor to work, but that too large a quantity of money in circulation caused interest rates to fall, which encouraged luxury imports and the export of bullion. the bank of england provided a safer deposit and lower interest than goldsmiths or scriveners. it also issued notes for 10 and 15 (since 1759), and 20 pounds. outside retail trade and wages payments, business was conducted on a credit basis with a paper promise to pay at some future date. check use was still formal and rare. tradesmen typically authorized their apprentices to "write off or draw" from their accounts, bringing their bank books. depositors authorized other people such as certain servants, relatives, cashiers, or company secretaries to make use of their accounts. after 1721, the bank dividend was about 6% a year. promissory notes were assignable and endorsable and the holder could recover against the signer or any endorser as was the case with bills of exchange. in 1775, no more promissory or other notes, bills of exchange, draughts, or undertakings in writing and being negotiable or transferable could be made for under 20s., because it was hard for the poorer sort of manufacturer, artificer, laborer and others to use them without being subject to great extortion and abuse. cash was to be used instead. by 1711, government finances had become so chaotic that the chancellor of the exchequer sought to re-establish public credit by means of a chartered commercial company, the shares of which were offered in substitution for government stock. this south sea company was established in 1711 with a monopoly to trade in south america. the prospects of huge profits sent the share prices soaring. there was also an increase in the money supply. these factors led to a speculation bubble in 1720 in this stock. also, many stock-jobbers promoted companies of every description, such as one to extract gold from seawater. there was an insurance boom with about seventy insurance companies in existence, many virtually gambling in life contingencies. there was speculation in insurance for all types of occurrences, such as housebreaking, highway robbery, death by gin-drinking, and horses becoming disabled. the total capital invested in all these enterprises rose to over five times the cash resources of all europe. when the bubble burst, 100 pound south sea stock had gone up to 1050 pounds and back down again to 120. since the government had in effect bought this stock at a low price and paid off its debt with this stock at a high price, this bubble relieved the government of much of its massive debt. it also redistributed wealth. after the bubble burst, investors took refuge in investing in 3-4% government fixed-interest securities. a result of this bubble burst was the chartering of two corporations for marine insurance and prohibition of such by any partnership or firm. private persons could continue to write policies, and they chose lloyd's coffeehouse as their headquarters; it came to dominate the world of marine insurance after the two chartered companies came to concentrate on fire and life insurance. lloyd's list became the foundation for a new newspaper. there were specialty boxes at lloyd's such as on america or the baltic. many ships were reported captured by enemies or pirates, but underwriting insurance was a lucrative business for many. in 1717 the gold guinea was assigned a value of 21s. in 1774, the gold standard was introduced. in 1774, clipped and deficient gold coin was called in to be exchanged for new coin. local taxes were collected for the church, the poor, county courts of justice, borough administration, and highways. national taxes included the income, customs, and excise taxes. when the government tried to levy excise taxes on wine, tobacco, and then on cider, there was a public protest with mobs demonstrating against the power given to excise inspectors to search in people's homes. these excise taxes were no longer levied. duties were placed on items for encouraging industries within the country and to pay the expenses of government. there were more and higher duties to pay for war. at various times there were duties on hides, skins, seal skins, gilt and silver wire, malt, mum [strong beer made from malted wheat], cider, perry, spices, tea, coffee, cocoa nuts, chocolate, cocoa paste, snuff, chinaware, drugs, calicoes, herrings, apples, oysters, raw italian and chinese silk, gum arabic, gum senega, tallow, hogs-lard, grease, beaver skins and wool, imported brandy, raisins, coals and coal dust, coaches for one's own use or for hire, except licensed hackney coaches; silver plate owned by persons, corporations, and bodies politic; leases, bonds, and other deeds; licenses for retailing wine, beer, and ale; 5% of salaries, fees, and perquisites from office and employments including royal pensions and gratuities over 100 pounds. when the price of wheat was high, as in 1765, when it was 6s. per bushel, wheat products could not be exported. at other times, they could not be imported. duties on imported wheat, barley, rye, oats, beans, rice, indian corn were also dropped. the prohibition of importing salted beef, pork, bacon, and butter was dropped. in 1770, no live cattle, pigs, mutton, pork, beef, either fresh or salted could be exported or forfeit 50 pounds for every such animal or 5s. per pound of such meat. in 1773, peas, beans, bacon, hams, and cheese could be imported duty free, and in 1775 labrador codfish. in 1775, raw goat skins could be imported duty-free to improve the domestic manufacture of red, green, and blue leather. in 1773, there were given costs above which various commodities could not be exported: wheat at 44s. per quarter, rye, peas, or beans at 28s., barley and beer at 22s., oats at 14s. or else forfeit the goods, 20s. per bushel and the ship or boat in which laden. (there are 8 bushes in a quarter.) a window tax replaced the hearth tax. these duties were 2s. on dwelling houses, increased by 6d. per window for houses with 10-14 windows, and increased by 9d. per window for houses with 15-19 windows, and increased by 1s. per window for houses with 20 or more windows, per year to be paid by the occupant. these were increased three more times, until the dwelling house duty was 3s. and the duty for 25 or more windows was 2s. another duty for war was that on imported starch, certain imported clothes, cards, dice, soap, vellum, parchment, and paper made in the realm (4d.-1s.6d. per ream depending on quality) or imported (1-16s. per ream). for pamphlets and newspapers made in the realm there was a duty of 2d. per sheet and 12d. for every advertisement. when the duty was paid, the paper was stamped. the penalty for nonpayment was 10 pounds for sellers and 5 pounds for those writing or printing on the paper. later, there was a penalty of imprisonment in a house of correction up to three months for sellers or hawkers of pamphlets or newspapers, and the apprehender received a reward of 20s. a parson marrying a couple without publishing banns or license could forfeit 100 pounds. not paying duties was punishable by various forfeitures of money. officers for duties could search warehouses on suspicion of concealment of coffee, tea, chocolate, or cocoa beans with an intent to avoid duties after making an oath before a duty commissioner or justice of the peace setting forth the grounds of such suspicion. a special warrant could be issued authorizing the officer to seize such goods. wars were funded not only by some duties, but by lotteries and short-term funding purchased at 5% yearly interest from the bank of england and by long-term funding by the sale of annuities. county militias could be raised and called out to march together in order to be better prepared to suppress insurrections or invasions. their horsemen were to be provided with broad sword, a case of pistols with 12 inch barrels, a carabine with belt and bucket, a saddle, and a bit and bridle. each foot soldier was to be provided with a bayonet, a cartouch-box, and a sword. in the militia act of 1757, there were quotas for each parish, to be chosen by lot from lists of men 18-50 years old. after militia service for three years, one could not be called again until by rotation, and, if married, he was allowed to practice any trade in which he was able in any town or place. while he was in the militia, his parish had to pay an allowance to his family, if distressed, the usual price of an agricultural laborer, according to the number and ages of the children. quakers could provide a substitute or pay money to defray expenses of a substitute for three years. exempt were peers, commissioned officers in royal army or royal castle, other military personnel, members of either university, clergymen, teachers of any separate congregation, constables and peace officers, and watermen of the thames river. this militia act was due to an invasion scare in 1756 because great britain then had no allies on the continent. the old strategy of maintaining a small army of 17,000 men and relying on volunteers had really depended on england's allies to tie down france's land forces. the militia act of 1757 was designed to reassure squires they would not be used as adjuncts to the army. only those with much property could be officers. enlistees could still carry on their trades and jobs. costs were to be from general taxation rather than by locality. but it was almost impossible to get officers and there were many riots when parish authorities tried to draw up lists of those liable to serve. in 1759 the navy prevented french invasion. able-bodied men without a calling, employment, or visible means of maintenance or livelihood could be searched for and conscripted into the army. volunteers who enlisted were paid 40s. and were not taken out of her majesty's service by any process other than for some criminal matter. king george ii was the last king to lead his troops into battle. later, parishes were given 20s. for every soldier they summoned. also, persons who had a vote for member of parliament were exempted. whipping was the usual punishment for offenses. a soldier who deserted or joined in any mutiny or sedition in the royal army within the realm was to suffer death or any other punishment determined by court martial. in 1760, a soldier (later, or a marine) who slept at his post, left his post before being relieved, communicated with any rebel or enemy, struck or disobeyed any superior officer could suffer death, including those soldiers in america. during war, chief officers of towns quartered and billeted royal army officers and soldiers in inns, livery stables, alehouses, and victualing houses for 4d. a day, but not in any private house without consent of the owner. from 1714 to 1739, the army regiments were split up and scattered among the ale-houses of small towns for maintenance; this was to disperse the soldiers. it was easier to count them, thereby keeping a check on their number, which might be exaggerated if they were in large groups in barracks. the towns protested having to maintain soldiers and town magistrates imposed severe penalties for small offenses by soldiers. their drunkenness and violence were not tolerated as they were for ordinary people. their officers not being with them, the soldiers retaliated with troublesomeness. as of 1763 english troops could be quartered in unoccupied houses or barns and supplied with necessities such as bedding, firewood, candles, vinegar, salt, cooking utensils, and beer or cider. the royal hospital gave pensions to maimed and worn out soldiers treated there. sailors had more status than soldiers because they had regular work as seamen in times of peace and they did not remind the people of the idea of a standing army, which they had hated especially since cromwell. justices of the peace, mayors, and other officers could bind boys as apprentices to sea service if they were at least ten and their parents were chargeable to the parish or begged for alms. this indenture to the masters or owners of ships lasted until the boy reached 21. the boy's parish paid 50s. for clothing and bedding for such sea service. no such apprentice could be impressed into the navy until at least 18 years of age. master and owners of ships that carried 30-50 tuns had to take one such apprentice and one more boy for the next 50 tuns, and one more boy for every 100 tuns over 100 tuns, or else forfeit 10 pounds to the boy's parish. boys voluntarily binding themselves to such sea service were exempt from impressment for the next three years. this was to increase the number of able and experience mariners and seamen for the navy and for the trade and commerce of the nation. no masters or commanders of merchant ships were to proceed on a voyage beyond the seas without first agreeing in writing on wages with the seamen, except for apprentices. such agreement had to be signed by the seamen. offenders were to forfeit 5 pounds per seaman, which sum went to the use of greenwich hospital. any seaman leaving the ship before being discharged in writing was to forfeit one month's pay because too many left the ship before it was unladen. there were some ships of 2000 tons. the steering wheel had been introduced because a sudden heavy sea could wrest a tiller from the hands of a helmsman. triangular head-sails with jib boom and stay-sails on stays between masts were in use so that ships could sail closer into the wind. the length of ships was still determined by the same length of trees that could be grown. sailing ships were still vulnerable to a lee shore. latitude was easy to determine using the reflecting octant invented by john hadley in 1731, and a sextant invented in 1757, with mirrors and a small telescope to measure the angle between a celestial body such as the sun or north star and the horizon. but longitude could not be determined with any degree of accuracy. one method relied on accurate predictions of the future position of the moon as observed from a fixed reference point, such as greenwich. by precisely observing the local time of the moon's occultation of a known star at a particular place, and looking up in a table the predicted time of the event at greenwich, one could approximate the time difference of the place from greenwich. there were so many shipwrecks on this account that the government offered a reward to anyone who found a way to measure longitude accurately. in 1763 carpenter and clockmaker john harrison made the chronometer to do this with an accuracy of 2 1/2 seconds per month, and received 5,000 pounds. he was promised 10,000 pounds to explain the principle of his timekeeper and build three more. the chronometer kept time with extreme accuracy and was mounted to remove the effect of the ship's motion. to find a ship's position, a navigator noted the time and measured the positions of certain stars. he compared these positions with tables that showed the stars' positions at greenwich mean time, and then calculated the ship's position. officer positions were no longer bought, but were subject to examination for a minimum of knowledge, especially in navigation. in 1729 the naval academy was established. boys entered at age 13 to 16 and spent two or three years there. only about 15% of the crew of navy ships were volunteers. many were gaolbirds, having chosen the navy over more gaol time for debt. press gangs seized men in the port towns and from ships coming into harbor. >from 10% to 20% of the crew were foreigners, many of these pressed men. about 1756, the marine society was founded for training and placing poor boys in work in naval and merchant ships. this not only supplied men and boys for the navy, but saved boys from a life of vagrancy and crime. these boys usually became reliable and obedient sailors. the life of a sailor was a hard one, requiring much strength. sailors did not know how to swim, so falling overboard usually meant death. flogging was the usual punishment in the navy, even for small offenses. the amount of flogging due for each offense rose over time. if flogging were fatal, there would be an inquiry and occasionally punishment. a sailor's meals were usually hard bread invested with weevils and maggots, dried or salted meat or fish, and small quantities of oatmeal, butter, and cheese. many sailors had scurvy or other deficiency diseases. experiments with lime and lemon juice as remedies for scurvy were made around 1764, but were not used in the navy until about 1800. many more sailors died from these diseases than from battle. rum and water was a daily ration introduced in 1745. the ordinary sailor was paid about one pound a month, a rate established in 1650s which became outdated. this was not in cash, but in a ticket which entitled him to payment in full if he presented it at the pay office in london, but was subject to swinging deductions if he tried to cash it in another port. prize money from conquered ships was substantial. to encourage seamen to enter the navy, parliament provided that the prizes be divided among flag officers, commanders, other officers, seamen, marines, and soldiers on board every ship of war, including private ships commissioned by the admiral, as directed by the king, or as agreed with the owner of a private ship. it included an enemy's ships, and goods and arms on the ships or in fortresses on the land. there was also bounty money for enemy ships taken or destroyed. for retaking or salvaging english goods taken by the enemy, 1/8th their value was paid. privateers colluding with others to fraudulently take their merchant ships forfeited their ships, with 1/3rd going to the person who made the discovery and prosecuted. later, any able seaman volunteering for the navy was to receive 5 pounds bounty. any seaman volunteering for the navy was to receive a bounty of 3 pounds. if a navy seaman was killed or drowned, his widow was to receive a year's pay as bounty. no seaman in a merchant ship was to receive more than 35s. per month because of war at that time. still later, anyone who ran goods or avoided customs was excused and indemnified if he enlisted in the navy as a common sailor for three years. those under 18 or over 55 were made exempt from impressment into the king's service. the time of service was limited to five years if the serviceman so demanded. worn out and decrepit seamen no longer being treated at the royal hospital for seamen at greenwich received a pension as determined by the hospital. in war, the navy favored blockading tactics over attack by fireships, which grew obsolete. in peace, when not used in convoys to remote lands, many ships of war were used as cruisers to guard the coast, to trade, and to accompany merchant ships going out and returning home. about 1755, marine forces of the navy were raised and quartered on shore. no war ship could carry goods except gold, silver, and jewels and except the goods of a ship in danger of shipwreck or already shipwrecked. the king was authorized to prohibit the export of gunpowder, saltpeter, ammunition, and arms. when a ship had been forced on shore or stranded on the coast, it had been the practice for people to plunder it and to demand high payment for salvaging its goods. so a statute required that salvage only be done by sheriff, mayors, and other officials. a person who defaced the marks on goods or hindered the saving of the ship had to pay double satisfaction to the person aggrieved and spend 12 months at hard labor in a house of correction. if a person unduly carried off goods, he forfeited treble damages. if he made a hole in the ship or stole the pump from the ship, he was guilty of felony without benefit of clergy. the owner of the island of skerries was allowed to erect a lighthouse and charge passing ships other than navy ships 1d. per tun. only pilots examined and admitted into the society of pilots and, if no such pilot was readily available, a ship's own owner, master, or mate could pilot ships up the thames river, or else forfeit 10 pounds for the first offense, 20 pounds for the second, and 40 pounds thereafter. any pilot losing a ship could no longer be a pilot. there had to be at least 120 qualified pilots. the prices of piloting were 3 pounds 10s. for ships drawing 7 feet of water, and 10s. more for each additional foot drawn up to 8 pounds 10s. for ships drawing 17 feet of water. to preserve navigation, ships were not to throw any ballast, filth, rubbish, gravel, earth, stone, or filth into rivers or ports where the tide or water flowed or ran or else forfeit 50s.5 pounds. ships on the thames river could take as ballast to stabilize a ship without cargo: dung, compost, earth, or soil from laystalls in london. there was a toll on ships entering the port of london to pay for repairs to its walls. many persons insuring ships for large premiums became bankrupt, thus ruining or impoverishing many merchants and traders. so the king was authorized to grant charters to two distinct corporations for the insurance of ships, goods, and merchandise or going to sea or for lending money upon bottomry [borrowing money and and pledging the ship as security]. each corporation had to pay 300,000 pounds to the exchequer and to have sufficient ready money to pay for losses insured by them. they were to raise capital stock and could make calls of money from their members in proportion to their stocks for any further money required. any owner, master, or mariner who cast away, burned, or otherwise destroyed a ship to the prejudice of underwriters of policies of insurance or of any merchants whose goods have been loaded on the ship was to suffer death. the owners of ships were not liable for losses by reason of theft without their knowledge by the master or mariners of goods beyond the value of the ship. this was to prevent the discouragement of owning ships. the insurance of merchant ships must give salvage rights [rights to take what may be left of the ships insured after paying the insurance on them] to the insurer. a lender on bottomry had benefit of salvage. no insurance could be for a greater amount than the value of one's interest in the ship or in the goods on board. no waterman carrying passengers or goods for hire e.g. by wherryboat, tiltboat, or rowbarge, on the thames river could take an apprentice unless he was a housekeeper or had some known place of abode where he could keep such apprentice or else forfeit ten pounds, and if he couldn't pay, do hard labor at the house of correction for 14-30 days. also he could not keep the apprentice bound to him. no apprentice could be entrusted with a vessel until he was 16 if a waterman's son and 17 if was he the son of a landman, and he had at least two years' experience. none but freemen, i.e. one having served an apprenticeship of seven years, could row or work any vessel for hire or be subject to the same punishment. this was to avoid the mischiefs which happen by entrusting apprentices too weak, unable, and unskillful in the work, with the care of goods and lives of passengers. later amendment required that apprentices be age 14 to 20 and that there be no more than 40 passengers, with the penalty of transportation if there were over 40 and one drowned. no boat on the thames river could be used for selling liquors, tobacco, fruit, or gingerbread to seamen and laborers because such had led to theft of ropes, cables, goods, and stores from the ships. excepted were boats registered at the guilds of trinity and of st. clement, but they had to show their owner's name and could only operate in daylight hours. the penalty was forfeiture of the boat. all ships coming from places infected with the plague had to be quarantined and any person leaving a quarantined ship had to return and later forfeit 20 pounds, of which 1/3 could go to the informer, the rest to the poor. this was later raised to 200 pounds and six months in prison, and if the person escaped, he was to suffer death. also later, a master of a ship coming from infected places or having infected people on board was guilty of felony and forfeited 200 pounds. if he did not take his vessel to the quarantine area on notice, he forfeited a further 200 pounds (later 500 pounds) and the ship, which could then be burned. the king was authorized to prohibit commerce for one year with any country infected by the plague and to forbid any persons of the realm from going to an infected place. by 1714, there was a clear distinction between a king's private income and the crown's public revenue. from 1714, the king's treasurer as a matter of routine submitted annual budgets to parliament. he was usually also the leader of the house of commons and the chancellor of the exchequer. proclamations by the crown were more restricted to colonial and foreign affairs, to executive orders, and to instructions to officials. the high offices included the chancellor, keeper, president of the council, privy seal, treasurer, and two secretaries of state, who were in charge of all foreign and domestic matters other than taxation, one for the north and one for the south. with thomas more, the chancellor had become more of a judge and less of a statesman. other offices were: paymaster general, secretary of war, and treasurer of the navy. starting with the monarch, government positions were given by patronage to friends and relatives, or if none, to the highest bidder. these offices were usually milked for fees and employed deputies, clerks, and scribes who worked for long hours at very modest wages. most people believed that the offices of power and influence in the realm belonged to the nobility and gentry as indubitably as the throne belonged to the king. assaulting, wounding, striking, or trying to kill a member of the privy council engaged in his duties was punishable by death without benefit of clergy. civil and military commissions, patents, grants of any office or employment, including justice of assize, justice of the peace, court writs, court proceedings continued in force for six months after a king's death, unless superceded in the meantime. the king's ministers were those members of his privy council who carried out the work of government. by distributing patronage, the ministers acquired the influence to become leading members of the house of commons or the house of lords. they made policy, secured the king's consent, and then put through the necessary legislation. the king was to act only through his ministers and all public business was to be formally done in privy council with all its decisions signed by its members. the king gradually lost power. the last royal veto of a parliamentary bill was in 1708. by 1714, the privy council ceased making decisions of policy. instead a cabinet not identified with any particular party was chosen by the queen, who presided over their meetings, which were held every sunday. it dealt with parliament. in 1720, the number of peers in the house of lords was fixed, so that the crown could create no more. about 1720, robert walpole, son of a country squire, who came to be first minister of the crown and the leader of the whigs, organized the cabinet so that it was of one view. he led it for twenty years and thus became the first prime minister. he was brilliant at finance and lessened taxation. he restored trust in the government after the south sea bubble scandal. he was successful in preserving the peace with other nations and providing stability in england that led to prosperity. the whigs opposed a standing army and over-reaching influence of the crown. they espoused the liberty of individual subjects. their slogan was "liberty and property". they generally favored foreign wars. members of the parliament felt responsible for the good of the whole country instead of accounting to their electors, but selfinterest also played a part. leading commercial magnates of the realm sought to be members of parliament or governors of the bank of england so they could take up government loans at advantageous rates, snap up contracts to supply government departments at exorbitant prices, and play an important part in deciding what duties should be charged on what goods. about 5% of the population could vote. voting was open, rather than by secret ballot. seats in parliament could normally be bought either by coming to an arrangement with some landowner who had the right to nominate to a closed seat or by buying enough votes in constituencies where the electorate was larger and the contest more open. factory owners and leading landowners sat together on committees drawing up plans for public works such as canal building, obtained the necessary permits from public authorities and organized the whole enterprise. in 1714, parliament was allowed to last for seven years unless sooner dissolved by the king because of the expense and tumult of elections, which frequently occasioned riots, and sometimes battles in which men were killed and prisoners taken on both sides. politics had become a career. members of parliament could not be arrested while parliament was in session. as of 1710, electees to the commons had to have 600 pounds annual income for knights or 300 pounds annually for burgesses. this did not include the eldest son or heir apparent of any peer or lord of parliament or any person with the above qualifications. the universities were exempted. as of 1729, a person electing a member of the commons had to swear or affirm that he had not received any money, office, employment, or reward or promise of such for his vote. if he swore falsely, it was perjury and he was to forfeit 500 pounds and his right to vote. later, voters for member of parliament had to have residence for a year. still later, voters were required to have been freemen of the city or town for one year or else forfeit 100 pounds, except if entitled to freedom by birth, marriage, or servitude according to the custom of such city or town. voters were still required to have a freehold of land of 40s. a year income, but holders of estates by copy of court roll were specifically precluded from voting or else forfeit 50 pounds. in 1724, since unauthorized persons had intruded into assemblies of citizens of london and presumed to vote therein, the presiding officer appointed clerks to take the poll and oath required for elections for parliament, mayor, sheriffs, chamberlains, bridgemasters, and auditors of chamberlains. the oath was that one was a freeman of london, a liveryman of a certain named company, had been so for 12 months, and had named his place of abode. the oath for alderman or common council elections was that the voter was a freeman of london and a householder in a named ward who had paid scot of at least a total of 30s. and bore lot. a list of the voters and of persons disallowed was given to candidates by the presiding officer. soldiers could not be quartered within 20 miles of a place of election so that the election was kept free. voters in public corporations must have held their stock for six months before voting them to discourage splitting stock and making temporary conveyances thereof to give certain people more of a vote, e.g. in declaring dividends and choosing directors. ambassadors were made immune from arrest, prosecution and imprisonment to preserve their rights and privileges and protection by the queen and the law of nations. the supporters of the bill of rights society was founded and paid agents to give speeches throughout the country and used the press for its goals. james burgh demanded universal suffrage in his 1773 book: "political disquisitions". in 1707 there was union with scotland, in which their parliaments were combined into one. the country was known as great britain. the last scottish rebellion resulted in attainder of its leaders for levying war against the king. in 1746, they were given the chance to surrender by a certain date, and receive a pardon on condition of transportation. in 1747, anyone impeached by the commons of high treason whereby there could be corruption of the blood or for misprison of such treason could make his defense by up to two counsel learned in the law, who were assigned for that purpose on the application of the person impeached. in 1748, counsel could interrogate witnesses in such cases where testimony of witnesses were not reduced to writing. there was a steady flow of emigrants to the american colonies, including transported convicts and indentured servants. delaware became a colony in 1703. in 1729, the king bought carolina from its seven proprietors for 2,500 pounds apiece. person having estates, rights, titles, or interest there, except officers, were allowed by parliament to sue the king with the court establishing the value to be paid, but no more than at a rate of 2,500 pounds per 1/8 of the property. georgia was chartered in 1733 on request of james oglethorpe, who became its first governor, as a refuge for debtors and the poor and needy. it established the episcopal church by law. in 1730 carolina and 1735 georgia were allowed to sell rice directly to certain lands instead of to england only. later, sugar was allowed to be carried directly from america to european ports in english ships without first touching some english port. foreigners who had lived in the american colonies for seven years, and later foreigners who served two years in the royal army in america as soldiers or as engineers, were allowed to become citizens of great britain on taking oaths of loyalty and protestantism. this included quakers and jews. the jews could omit the phrase "upon the true faith of a christian." in 1756, indentured servants in america were allowed to volunteer as soldiers in the british army serving in america. if his proprietor objected, the servant was to be restored to him or reasonable compensation given in proportion to the original purchase price of his service and the time of his service remaining. there was much competition among countries for colonies. quebec and then montreal in 1760 in canada were captured from the french. about 1768 james cook discovered new zealand and australia; his maps greatly helped future voyages. the english east india company took over india as its mogul empire broke up. manufacturing in the american colonies that would compete with british industry was suppressed by great britain. there were increasing duties on goods imported into the colonies and restrictions on exports. in 1763, parliament imposed duties on foreign imports going to america via britain: to wit, sugar, indigo, coffee, certain wines, wrought silks, calicoes, and cambrick linen. foreign vessels at anchor or hovering on colonial coasts and not departing within 48 hours were made liable to be forfeited with their goods. uncustomed goods into or prohibited goods into or out of the colonies seized by customs officials on the ship or on land and any boats and cattle used to transport them occasioned a forfeiture of treble value, of which 1/3 went to the king, 1/3 went to the colonial governor, and 1/3 went to the suer. any officer making a collusive seizure or other fraud was to forfeit 500 pounds and his office. in 1765, there was imposed a duty on papers in the colonies to defray expenses of their defense by the british military. the duty on every skin, piece of vellum [calf skin] or parchment, and sheet of paper used in any law court was 3d.2 pounds. there were also duties on counselor or solicitor appointments of 10 pounds per sheet. duties extended to licenses for retailing spirituous liquors and wines, bonds for payment of money, warrants for surveying or setting out of any lands, grants and deeds of land, appointments to certain civil public offices, indentures, leases, conveyances, bills of sale, grants and certificates under public seal, insurance policies, mortgages, passports, pamphlets, newspapers (about 1s. per sheet), advertisements in papers (2s. each), cards, and dice. the papers taxed were to carry a stamp showing that the duties on them had been paid. parliament thought the tax to be fair because it fell on the colonies in proportion to their wealth. but the colonists saw this tax as improper because it was a departure from the nature of past duties in that it was an "internal tax". all of the original thirteen american colonies had adopted magna carta principles directly or indirectly into their law. the stamp duties seemed to the colonists to violate these principles of liberty. patrick henry asserted that only virginia could impose taxes in virginia. schoolmaster and lawyer john adams in massachusetts asserted that no freeman should be subject to any tax to which he had not assented. in theory, colonists had the same rights as englishmen per their charters, but in fact, they were not represented in parliament and englishmen in parliament made the laws which affected the colonists. they could not be members of the house of lords because they did not have property in england. there were demonstrations and intimidation of stamp agents by the sons of liberty. merchants agreed to buy no more goods from england. the stamp duty was repealed the same year it had been enacted because it had been "attended with many inconveniences and may be productive of consequences greatly detrimental to the commercial interests of these kingdoms". to counter the wide-scale running of goods to avoid the customs tax, the customs office was reorganized in 1766 to have commissions resident in the colonies and courts of admiralty established there to expedite cases of smuggling. this angered the colonists, especially boston. boston smuggling had become a common and respectable business. it was the port of entry for molasses from the west indies from which new england rum was made and exported. the entire molasses trade that was essential to the new england economy had been built upon massive customs evasions; royal customs officials had participated in this by taking only token customs for the sake of appearance in london and thereby had become rich. in 1766 parliament imposed a duty of 3d. per pound weight on tea and duties on reams of paper, glass, and lead into the colonies. these import duties were presented as external rather than internal taxes to counter the rationale the colonies gave against the stamp tax. but these items were of common use and their duties raised the cost of living. the king's customs officials were authorized to enter any house, warehouse, shop, or cellar to search for and seize prohibited or uncustomed goods by a general writ of assistance. these writs of assistance had been authorized before and had angered bostonians because they had been issued without probable cause. in paxton's case of 1761, the massachusetts superior court had declared legal the issuance of general writs of assistance to customs officers to search any house for specific goods for which customs had not been paid. the authority for this was based on the parliamentary statutes of 1660 and 1662 authorizing warrants to be given to any person to enter, with the assistance of a public official any house where contraband goods were suspected to be concealed, to search for and seize those goods, using force if necessary. they were called "writs of assistance" because the bearer could command the assistance of a local public official in making entry and seizure. a "general" writ of assistance differed from a "special" writ of assistance in that the latter was issued on a one-time basis. the general writ of assistance in boston was good for six months after the death of the issuing sovereign. authority relied on for such writs was a 1696 statute giving customs officers in the colonies the same powers as those in england, a 1699 act by the massachusetts provincial legislature giving the superior court of massachusetts the same such power as that of the exchequer, and the massachusetts' governor's direction about 1757 to the massachusetts superior court of judicature to perform the function of issuing such warrants. the massachusetts court issued them in the nature of the writs of assistance issued from the exchequer court in england, but had issued them routinely instead of requiring the showing of probable cause based on sworn information that the exchequer court required. few judges in the other american colonies granted the writ. seditious libel trials in england and the colonies were followed closely and their defendants broadly supported. john wilkes, a member of the house of commons, published a criticism of a new minister in 1763. he called king george's speech on a treaty "the most abandoned instance of ministerial effrontery ever attempted to be imposed on mankind". after being found guilty of seditious libel, he again ran for the house of commons, and was repeatedly elected and expelled. he was subsequently elected alderman, sheriff, and mayor of london. in 1770, alexander macdougall was voted guilty of seditious libel by the new york colonial assembly for authoring a handbill which denounced a collusive agreement by which the assembly voted to furnish supplies for the british troops in new york in exchange for the royal governor's signature to a paper-money bill. when he was arrested, the sons of liberty rallied to his support, demanding freedom of the press. benjamin franklin's brother had been imprisoned for a month by the massachusetts assembly for printing in his newspaper criticisms of the assembly. he was forbidden to print the paper. benjamin supported him by publishing extracts from other papers, such as "without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty without freedom of speech... whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech; a thing terrible to public traitors." by statute of 1766, the new york house of representatives was prohibited from meeting or voting until they provisioned the king's troops as required by law. in 1769, harvard college seated its students in class in alphabetical order instead of by social rank according to birth. by 1769, the colonies' boycott of british goods in protest of the new duties cause these imports to decline so much that british merchants protested. so the duties were dropped, except for that on tea, which was retained as a matter of principle to assert the power of the crown to tax the colonies. then in 1773 the east india company was allowed to sell tea directly to the colonies to help it avoid bankruptcy. the effect of this was to lower the cost of tea in the colonies by avoiding the english middleman, and the american middleman, but also to give the east india company a monopoly. the colonies felt threatened by this power of britain to give monopolies to traders. when the tea ships arrived in boston in late 1773, bostonians held a town meeting and decided not to let the tea be landed. they threw this cargo of tea, worth about 18,000 pounds, overboard. this boston tea party was a direct challenge to british authority. in response, parliament closed the port of boston until compensation was made to the east india company. by statute of 1774, no one was to enter or exit the port of boston or else forfeit goods, arms, stores, and boats that carried goods to ships. every involved wharf keeper was to forfeit treble the value of the goods and any boats, horses, cattle, or carriages used. ships hovering nearby were to depart within six hours of an order by a navy ship or customs officer or be forfeited with all goods aboard, except for ships carrying fuel or victuals brought coastwise for necessary use and sustenance of inhabitants after search by customs officers, and with a customs official and armed men for his defense on board. this statute was passed because of dangerous commotions and insurrections in boston to the subversion of the king's government and destruction of the public peace in which valuable cargoes of tea were destroyed. later, the governor was given the right to send colonists or magistrates charged with murder or other capital offenses, such as might be alleged to occur in the suppression of riots or enforcement of the revenue laws, to england or another colony for trial when he opined that an impartial trial could not be had in massachusetts bay. a later statute that year altered the charter of massachusetts bay province so that the choice of its council was transferred from the people to the king to serve at his pleasure, and the appointment and removal of judges and appointment of sheriffs was transferred to the governor to be made without the consent of the council. this was due to the open resistance to the execution of the laws in boston. further, no meeting of freeholders or inhabitants of townships was to be held without consent of the governor after expressing the special business of such meeting because there had been too many meetings that had passed dangerous and unwarranted resolutions. also, jurors were to be selected by sheriffs rather than elected by freeholders and inhabitants. the commander of the british troops in north america was made governor of massachuseetts. king george thought that the colonists must be reduced to absolute obedience, even if ruthless force was necessary. the people of massachusetts were incensed. they were all familiar with the rights of magna carta since mandatory education taught them all to read and write. mandatory education every township of fifty households had to appoint one person to teach all children to read and write. every one hundred families had to set up a grammar school.) the example in massachusetts showed other colonies what england was prepared to do to them. also disliked was the policy of restricting settlement west of the allegheny mountains; the take over of indian affairs by royal appointees; the maintenance of a standing army of about 6,000 men which was to be quartered, supplied, and transported by the colonists; and expanded restrictions on colonial paper currencies. the virginia house of burgesses set aside the effective date of the port bill as a day of prayer and fasting, and for this was dissolved by its governor. whereupon its members called a convention of delegates from the colonies to consider the "united interests of america". this congress met and decided to actively resist british policy. as opposition to british rule spread in the colonies, a statute was passed stating that because of the combinations and disorders in massachusetts, new hampshire, and connecticut, and rhode island to the destruction of commerce and violation of laws, these inhabitants should not enjoy the same privileges and benefits of trade as obedient subjects and that therefore no goods or wares were to be brought from there to any other colony, and exports to and imports from great britain were restricted, on pain of forfeiting the goods and the ship on which they were laden. there vessels were restricted from fishing off newfoundland. these conditions were to be in force until the governors were convinced that peace and obedience to laws was restored. later in 1775, these trade restrictions were extended to new jersey, pennsylvania, maryland, virginia, and south carolina. in 1776, since all the thirteen colonies had assembled an armed force and attacked british forces, these trade restrictions were extended to delaware, new york, georgia, and north carolina and expanded to prohibit all trade during the present rebellion to prevent assistance to them. war had started; the new rifle was used instead of the musket. by statute of 1775, anyone harboring of army or marine deserters in the colonies forfeited 5 pounds anyone persuading a soldier or marine to desert drew a forfeiture of 40 pounds or else up to six months in prison without bail and one hour in the pillory on market day. bounties were made available to vessels from and fitted out in great britain for newfoundland fishing. any shipmaster carrying as passengers any fisherman, sailor, or artificer to america forfeited 200 pounds because such men had been seduced from british fishing vessels in newfoundland, to the detriment of the fishing industry. the many years of significant achievements of the colonists, such as taming the wilderness and building cities, had given them confidence in their ability to govern themselves. the average colonial family had a better standard of living than the average family in england. many of its top citizenry had reached their positions by hard work applied to opportunities for upward mobility. with the confidence of success, the american colonies in 1776 declared their independence from britain, relying on the principles stated by john locke and jean jacques rousseau that man was naturally free and all men equal, and that society was only created with their consent. issac's newtons's unified laws of the universe had contributed to this idea of a natural law of rights of men. thomas jefferson wrote a declaration of independence which listed the colonies' grievances against the crown which reiterated many of the provisions of the petition of right and bill of rights, specifically dispensing with and suspending laws, maintaining a standing army and quartering troops without legislative consent, imposing arbitrary taxation, encouraging illegal prosecutions in strange courts, and corrupting the jury process. it was adopted about july 4, 1776. thereafter, the american colonies did not follow english law. past english law became the legal heritage of the united states of america. the law anyone who feloniously steals or aids in the stealing of goods, wares, or merchandise over 5s. from a shop, warehouse, coach house, or stable, by night or by day, whether the owner is present or not, whether there is a break in or not, may not have benefit of clergy. anyone stealing goods of 40s. worth from a ship on any river or in any port or creek or from any wharf may not have benefit of clergy. anyone receiving or buying goods they know to be stolen or who harbors or conceals any burglars, felons, or thieves knowing them to be such shall be taken as accessory to the felony and shall suffer death as punishment if the principal felon is convicted. a person taking money or reward for helping any other person to stolen goods or chattels is guilty of felony unless he brings the thief to trial. as of 1717, any person convicted of grand or petit larceny or any felonious stealing or taking of money, goods, or chattels, either from the person or from the house of any person who is entitled to benefit of clergy and who is liable only to whipping or burning in the hand may instead be transported to the american colonies to the use of any person who will pay for his transportation for seven years. any person convicted of an offense punishable by death and without benefit of clergy and buyers and receivers of stolen goods may be given mercy by the king on condition of transportation to any part of america to the use of any person who will pay for his transportation, for fourteen years or other term agreed upon. returning before the expiration of the term is punishable by death. anyone assaulting another with an offensive weapon with a design to rob may be transported for seven years. any person armed with swords, firearms, or other offensive weapons and having their faces blackened or otherwise being disguised, who appears in any forest, park, or grounds enclosed by a wall or fence wherein deer are kept (including the king's deer) or in any warren or place where hares or conies are kept or in any high road, open heath, common, or down, or who unlawfully hunts, wounds, kills, or steals any deer or steals any hare or rabbit or steals any fish out of any river or pond or who unlawfully and maliciously breaks down the head or mound of any fish pond, causing the loss of fish, or who unlawfully and maliciously kills, maims, or wounds any cattle, or who cuts down any trees planted in any avenue or growing in any garden or orchard for ornament, shelter, or profit, or who sets fire to any house, barn or out house [outer building], hovel, or stack of grain, straw, hay or wood, or who willfully and maliciously shoots any person in any dwelling house or other place, or who sends any letter with no signature or a fictitious signature, demanding money, venison, or other valuable thing, or who forcibly rescues any person lawfully in custody for any of these offenses, or who procures others by gift or promise of money or other reward to join with him in any such unlawful act is guilty of felony and shall suffer death without benefit of clergy. persons abetting them are also guilty of felony and shall suffer death without benefit of clergy. attainder shall not work corruption of the blood, loss of dower, or forfeiture of lands, goods, or chattel. the persons sustaining damages can recover 200 pounds or less from the hundred, with inhabitants paying proportionately, unless one of the offenders is convicted within six months. if other hundreds have not diligently followed the hue and cry, they shall pay half such damages. in 1735, it was required that there be notice to the constable or other officer or tythingman and public notice in the london gazette describing the robbery, offenders, and goods taken before the hundred had to pay damages. also, it did not have to pay damages if one offender was apprehended with 40 days of publication in the london gazette, but did have to pay the apprehender 10 pounds. in 1754 was also included letters threatening killing people or burning houses, barns or stacks of grain, hay, or straw, without any demand. also, persons who rescued such offenders from gaol were given the same penalty. later, persons obtaining money or goods by false pretenses with an intent to defraud or cheat or sending a letter without a true signature threatening to accuse any person of a crime with an intent to extort money or goods, are punishable by fine and prison, pillory, or whipping or transportation for seven years. later, no person may recover more than 200 pounds after a hue and cry unless there are at least two witnesses to the robbery. no one may advertise a reward for return of things stolen or lost with no questions asked, because this has resulted in thefts and robberies. anyone stealing sheep or cattle or parts thereof is a felon and shall suffer death without benefit of clergy. persons who steal or aid in stealing any lead, iron bar, iron gate, palisade, or iron rail fixed to any house or its outhouses, garden, orchard, or courtyard is guilty of felony and may be transported for seven years. in 1756 also included was copper, brass, bell-metal, and solder; buyers and receivers; and mills, warehouses, workshops, wharves, ships, barges, and other vessels. search warrants were authorized in case of suspicion. officers and solicited buyers and receivers were required to take persons who at night were reasonably suspected of having or carrying such items, to an accounting before a justice of the peace. also a notice was put in the newspaper for any owners to claim such. if the person did not give a satisfactory account of the items, he was guilty of a misdemeanor punishable by forfeiture of 2 pounds or prison up to one month for the first offense, 4 pounds or prison for two months for the second offense, and 6 pounds or prison for any subsequent offense (without bail). an officer or solicited buyer or receiver who did not take a suspect to a justice of the peace was punishable by the same penalties except the amounts of forfeiture were 1 pound, 2 pounds, and 4 pounds respectively. a felon who brought two buyers or receivers to justice was to be pardoned. a description of any goods and the appearance of a rogue or vagabond or idle and disorderly person shall be advertised in a public paper for identification by the owner as stolen. pawning goods without consent of the owner is punishable by forfeiture of 20s. or hard labor for fourteen days with whipping there. maliciously destroying river banks resulting in lands being overflowed or damaged is a felony for which one shall suffer death without benefit of clergy. later, transportation for seven years was made an alternative. the punishment for forgery or counterfeiting or assisting in such or claiming a counterfeit item is good while knowing that it is not, with an intent to defraud is death without benefit of clergy. the punishment for perjury or subordination of perjury is hard labor in the house of correction for up to seven years or transportation for up to seven years. the punishment for altering numbers on bills of exchange or other payment papers is death. it is high treason to counterfeit the coinage. a person who tenders coin, knowing it to be false, shall spend six months in prison and acquire sureties for good behavior for the next six months. if he offends again, he shall spend two years in prison and acquire sureties for good behavior for the next two years. the third offense is felony without benefit of clergy. in 1773, making or possessing any frame, mould, or instrument for forging paper notes of the bank of england and putting this identification thereon is felony with penalty of death without benefit of clergy. anyone who forges promissory notes, bills of exchange, or inland bills of the bank of england by engraving or etching on metal or wood "bank of england" or "bank post bill" shall go to gaol for up to six months. anyone selling gold or silver ware, vessel, plate or other item large enough to be marked which has not been marked by its maker shall forfeit 10 pounds or be kept at hard labor up to six months. anyone counterfeiting such mark shall forfeit 100 pounds. later, vendors of these items were required to be licensed and the penalty for counterfeiting was raised to felony for which one shall suffer death without benefit of clergy. later still, transportation for fourteen years was allowed as an alternative. if an item was not all silver, e.g. had metal underneath, 100 pounds was to be forfeited. in 1769, receivers of stolen jewels and gold and silver plate and watches knowing them to be stolen, in cases of burglary and highway robbery, were subject to transportation for 14 years. anyone who willfully and maliciously set on fire any mine or pit of coal is guilty of felony and shall suffer death without benefit of clergy. anyone who willfully and maliciously floods a coal work, mine pit or who makes underground cavities or passages with intent to destroy or damage such, or obstructs any sough or sewer made for draining such, which has been held in common for 50 years, shall forfeit treble damages. this is to deter these offenses, which have been done to enhance the price of coals and gain a monopoly thereof. if twelve or more people who riotously and tumultuously assemble and disturb the peace, do not disburse within an hour of an order to disburse by a justice or sheriff or mayor, they shall be deemed felons without benefit of clergy. any people pulling down or destroying a church, dwelling house, barn, stable, or other out house; any mill; any engine used for draining water from any coal, lead, tin, or copper mines, or for drawing coals from mines; or bridge, wagon, or fences used in such industry will be deemed felons without benefit of clergy and may be transported for seven years. the cost of repair is to be borne by the hundred or town. the earlier statute that substituted burning in the cheek for burning in the hand is repealed because this not only did not deter offenders, but on the contrary, made them unfit for honest livelihoods and therefore more desperate. those convicted of theft or larceny shall be burnt in the hand and may be kept at hard labor in a house of correction for 2-24 months, without bail. anyone stealing goods off shipwrecks, or putting out a false light to bring a ship to danger, or beating or wounding with an intent to kill or otherwise obstructing a person escaping from the ship to save his life shall suffer death without benefit of clergy. except that good of small value taken without violence shall be punished as petit larceny. the houses of suspect people may be searched by warrant. if there are goods found or if people are found offering goods to sell, they may be ordered by a justice to give an account of these goods. if the account is not satisfactory, the punishment is forfeiture of treble their value or six months in prison. a reasonable reward may be given to the discoverer. anyone assaulting a magistrate or officer involved in salvage work shall be transported for seven years. armed persons up to three in number assembled to assist in illegal exporting or running, landing, or carrying away prohibited or uncustomed goods, and any person apprehended by any revenue officer, and anyone with his face blackened or masked who obstructs, assaults, opposes, or resists any revenue officer seizing such goods, or who shoots at or maims or wounds any revenue officer attempting to go on any ship shall suffer death as felons without benefit of clergy or serve as commons sailors in the navy for at least one year. harborers of such offenders will be transported for seven years. the hundreds shall pay 100 pounds for each revenue officer killed, and up to 40 pounds for each one beaten, wounded, or maimed, and damages up to 200 pounds for goods, unless an offender is caught and convicted in six months. there is a reward of 500 pounds to an apprehender, and 50 pounds for an attempt to apprehend in which one loses a limb or eye or is maimed or wounded, and 100 pounds to his family if he is killed. an offender who brings two of his accomplices to justice will be acquitted and rewarded 50 pounds for each such accomplice. later, an incentive was given to customs officers to have a portion of the proceeds of the sale of such goods seized by them, such as 2/3 for wrought silks and calicoes, and 1/3 for tea, coffee, foreign brandy, and rum. still later, any person could seize wrought silk, including ribbons, laces, and girdles containing it, from the importer or retailer, and the importer was to forfeit 100 pounds, and any import assistants 50 pounds, and retailers or concealers 50 pounds, with one half going to the suer. also, the goods were to be publicly burnt. still later, the penalty was increased to forfeiture of 200 pounds for all offenders, but not including wearers, and the goods were to be publicly sold for export rather than burnt. then the import of silk stockings, silk mitts, and silk gloves was prohibited for the support of the english silk industry. retailers, sellers, and concealers of such were to forfeit the goods and 200 pounds. search warrants could be issued. in 1765, importers, sellers, and manufacturing users of most foreign wrought silks or velvets were to forfeit the goods and 100 pounds. the goods were sold for export with the proceeds going 1/2 to the king, and 1/2 to the seizing officer. the wearer was not liable. the burden of proof of the place of manufacture was on the person prosecuted rather than on the prosecutor. persons breaking into houses or shops to destroy any wool or silk being made or tools or racks used shall suffer death as felons, to prevent combinations of workmen. in 1768, bounties were made available to american exporters of raw silk to great britain, whose climate was not conducive to the growing of mulberry trees on which silk worms feed. in 1774, cotton printed, stained, or dyed that has been manufactured in great britain may be worn and used, but must have a mark woven in the warp that it was manufactured in great britain. persons importing other such cloth shall forfeit it and ten pounds per piece. persons selling such with a counterfeit stamp with an intent to defraud shall suffer death without benefit of clergy. the protective measures for english silk manufacture did not work well. any pirate, accessory to piracy, commander or master or other person of any ship or vessel who trades with a pirate or furnishes him with ammunition or provisions of fits out a ship to trade with pirates shall suffer death and loss of lands, goods, and chattels. seamen maimed in fighting pirates may be admitted into greenwich hospital. (this hospital received support from duties paid by vessels of the realm and of the colonies.) masters or seamen not fighting shall forfeit their wages and spend 6 months in prison if the ship is taken. masters shall not advance to any seamen above half his wages since deserting is the chief occasion of their turning into pirates. in london penalties for crimes against property rose so that by 1740, a child could be hanged for stealing a handkerchief worth 1s. from a person's body. trade and the economy boomed in time of war, buttressed by the increased production in the coal, iron, steel, shipbuilding, and cloth industries. but peace brought depression and much misery, including the imprisonment of many debtors. when very many were imprisoned, statutes allowed release on certain conditions. after assets were paid to creditors in proportion to the amounts owed to them, debtors could be discharged from prison if they owed no party more than 100 pounds (later no restriction and still later, 50 pounds, and even later, 500 pounds, and in 1772, 1000 pounds, and in 1774, 2000 pounds) and take an oath that they have less than 10 pounds (20 in 1772) worth of property (including 40s. in money in 1774), because there were so many debtors in prison who were impoverished by war losses and other misfortunes in trades and professions, and were totally disabled from paying their creditors, and they and their families either starved or became a burden to their parishes and became an occasion of pestilence and other contagious diseases. exempted were those debtors for whom there was an objection by one of their creditors who paid for the maintenance of that debtor in prison. prisoners discharged were also discharged from chamber [cell] rent and gaolers' fees, but not from their debts to creditors. during war, no male prisoner could be discharged unless he enlisted in the royal army or navy until the end of the war. in 1774, the discoverer of any asset of a debtor not listed by that debtor was to receive a reward of 20 pounds per hundred, and anyone concealing an asset of a debtor was to forfeit 100 pounds as well as double the value of the asset. a person declared bankrupt shall subsequently be examined from time to time as to their goods, money, or other effects or estate to prevent the frauds frequently committed by bankrupts. a default or willful omission shall be deemed felony without benefit of clergy. a bankrupt or other person concealing goods to the value of at least 20 pounds or his books with intent to defraud is a felony without benefit of clergy. a debtor refusing to come to court for examination or hiding assets of more than 20 pounds is guilty of felony and his goods and estate shall be divided among his creditors. later, a bankrupt coming to an examination was allowed to keep 5 (or 7 1/2 or 10) pounds per 100, up to a maximum of 200 (or 250 or 300, respectively) pounds if he paid his creditors 10s. (or 12s.6d. or 15s. respectively) per pound. his future estate was still liable to creditors, excepting tools of trade, necessary household goods, bedding, furniture, and wearing apparel of the family up to 10 pounds, if it could pay every creditor 15s. per pound. if he didn't pay this, he could be imprisoned. bankrupts excepted from the benefits of this act are those who lost 5 pounds in any one day or 100 pounds in the preceding year from gambling or wagers. no goods or chattels on lands or tenements which are leased for life or lives or term of years or at will or otherwise "shall be liable to be taken by virtue of any execution on any pretence whatsoever unless the party at whose suit the said execution is sued out shall before the removal of such goods from off the said premises by virtue of such execution or extent pay to the landlord" all money due as rent. if the lessee fraudulently or clandestinely conveys or carries off his goods or chattels with intent to deprive the landlord or lessor from distraining the same for arrears of such rent, the lessor or landlord may, within five days, seize such goods and chattels as a distress for the arrears of rent and may sell them as if actually distrained on the premises. every person under 21 and every woman-covert who is entitled by descent or will to be admitted tenants of any copyhold lands or hereditaments may be ordered to appear by a guardian or attorney to be compelled to be so admitted and to pay such fines as are owing by the lands. if one is so admitted, but does not pay, the lord may enter the lands and receive its rents, but not sell timber, until the fine and costs are satisfied, after which the land is to be given back and may not be forfeited to the lord. tenants holding over any lands after their term expired and after demand for possession was made shall pay double the yearly value of such to the landlord. the landlord may reenter and eject a tenant if rent is in arrears for 1/2 year. landlords may distrain within 30 days and sell goods and chattels fraudulently or clandestinely carried off the premises by renters in arrears of rent. this applies to goods sold to others privy to the fraud. they may use force if necessary to break open houses upon giving a justice of the peace reasonable grounds to suspect and to break open other buildings in the presence of a constable. the renter is to forfeit double the value of such. the landlord may distrain the renter's cattle on any common or any growing grain, roots, or fruit. attornments of renters made to strangers who claim title and turn the landlord out of possession are void. chief leases may be renewed without surrendering all the under leases. this is to prevent subtenants from delaying the renewal of the principal lease by refusing to surrender their leases, notwithstanding that they have covenanted to do so. but the rents and duties of the new subleases may not exceed those of their former leases. any person claiming a remainder, reversion, or expectancy in any estate upon a person's death, who has cause to believe that that person is dead and that the death is being concealed by the person's guardian, trustee, husband, or other person, may request yearly an order in chancery for the production of such tenant for life. upon refusal, the tenant for life shall be deemed dead. as of 1752, all devices, legacies, and bequests made by will in great britain or the colonies had to be in writing and witnessed by three witnesses, or would be held void. no witness was to receive anything by the will that he witnessed. an accessory before or after the fact of felony may be prosecuted and tried not only if the principal accused felon has been convicted, but even if he stood mute or peremptorily challenged over 20 persons to serve on the jury. the accessories shall be punished the same as if the principal had been attainted. buyers and receivers of stolen goods may be prosecuted and punished if they knew the goods to be stolen, even if the principal felon has not been convicted. the punishment will be as for misdemeanor by fine and imprisonment. this is to deter the counselors and contrivers of theft and other felonies and the receivers of stolen goods from taking advantage of the former rule that an accessory could not be convicted or punished unless the principal had first been attainted. and if any captain or mariner or other officer belonging to any ship willfully casts away, burns, or otherwise destroys that ship to the prejudice of its owners or merchants loading goods onto the ship, he shall suffer death as a felon. journeymen shoemakers or employees of such who sell or pawn boots, shoes, slippers, cut leather or other materials for making such goods which are not his proper goods, or exchange for worse good leather which has been entrusted to them, shall for the first offense, recompense the injured person, or if his goods are insufficient for distress, may be whipped. for the second offense, he shall be sent to hard labor in a house of correction for 14-30 days. a person who buys or receives or takes in pawn such goods shall suffer the same penalties. justices of the peace may issue warrants to search houses and buildings in the daytime if there is "just cause to suspect" such goods therein based upon information given to him under oath. anyone employed in the working up of woolen, linen, fustian, cotton, or iron manufacture who embezzles or purloins any materials for their work shall forfeit double the value of the damages done and anyone convicted thereof may be put into the house of correction until he pays, or if he can't pay, to be publicly whipped and kept at hard labor for no more than 14 days. persons convicted of buying or receiving such materials shall suffer like penalties and forfeitures as one convicted of embezzling or purloining such materials. laborers employed in such manufacture must be paid in coin and not in cloth, victuals, or commodities in lieu thereof. leatherworkers were added with a penalty of up to double the value. later this statute was amended to include a penalty for the second offense of forfeiture of four times the value, or else hard labor at a house of correction for 1-3 months and whipping once or more in the market town. like penalties were given for buyers of such material knowing it to be false. one who neglected finishing and delivering such goods because he was leaving this employment was to be sent to the house of correction for up to one month. the penalty for possessing or offering to sell any hare, pheasant, partridge, moor or heath game or grouse by any carrier, innkeeper, victualer, or alehouse keeper is 5 pounds, 1/2 to the informer, and 1/2 to the poor of the parish. if unable to pay, the offender shall be placed in the house of correction for three months without bail. unauthorized persons keeping or using greyhounds, setting dogs, or any engine to kill game shall suffer the same penalties. in 1770, anyone killing hare at night or using any gun, dog, or other engine to take or kill or destroy any hare, pheasant, partridge, moor game, heath game, or grouse in the night shall be whipped and also go to gaol or the house of correction for 3-6 months without bail for the first offense, and for 6-12 months without bail for any further offense. if such occurs on a sunday, the offender must forfeit 20-30 pounds or go to gaol for 3-6 months. in 1773, no one may kill or take or possess any heath fowl or any grouse except at a limited period during the year. each manor may have only one gamekeeper allowed to kill game such as hare, pheasant, partridge and only for his household's use. this gamekeeper must be either qualified by law or a servant of the land's lord. other persons possessing game or keeping a greyhound or setting dogs or guns or other devices to kill game must forfeit them and five pounds. anyone killing or attempting to kill by shooting any house dove or pigeon shall forfeit 20s. or do hard labor for one to three months. excepted are owners of dove cotes or pigeon houses erected for the preservation and breeding of such. a gamekeeper or other officer of a forest or park who kills a deer without consent of the owner must forfeit 50 pounds per deer, to be taken by distress if necessary, and if he can't pay, he is to be imprisoned for three years without bail and set in the pillory for two hours on some market day. a later penalty was transportation for seven years. anyone pulling down walls of any forest or park where deer are kept, without the consent of the owner, must forfeit 30 pounds and if he can't pay, he is to be imprisoned for one year without bail and spend one hour in the pillory on market day. later, the killing of deer in open fields or forests was given the same penalties instead of only the monetary penalty prescribed by former law (former chapter). the penalty for a second offense was given as transportation for seven years. anyone beating or wounding a gamekeeper with an intent to kill any deer in an open or closed place was to be transported for seven years. anyone who apprehends and prosecutes a person guilty of burglary or felonious breaking and entering any house in the day time shall be rewarded 40 pounds in addition to being discharged from parish and ward offices. justices of the peace may authorize constables and other peace officers to enter any house to search for stolen venison. any person apprehending an offender or causing such to be convicted who is killed or wounded so as to lose an eye or the use of a limb shall receive 50 pounds. any person buying suspect venison or skin of deer shall produce the seller or be punished the same as a deer killer: 30 pounds or, if he couldn't pay, one year in prison without bail and one hour in the pillory on market day. an offender who discloses his accomplices and their occupations and places of abode and discovers where they may be found and they are subsequently convicted, shall be pardoned. all persons pretending to be patent gatherers or collectors for prison gaols or hospitals and all fencers, bearwards, common players of interludes, minstrels, jugglers, and pretended gypsies, and those dressing like egyptians or pretending to have skill in physiognomy, palm-reading, or like crafty science, or pretending to tell fortunes, and beggars, and all persons able in body who run away and leave their wives or children to the parish shall be deemed rogues and vagabonds. apprehenders of such persons bringing them before a justice of the peace may be rewarded 2s. any constable not apprehending such shall forfeit 10s. persons wandering outside the place determined by a justice of the peace to be his settlement may be whipped on the back until it is bloody or sent to hard labor at a house of correction. if he was dangerous and incorrigible, for instance as indicated by swearing falsely before a justice of the peace, he could suffer both punishments with the whipping being on three market days. if he escaped from the house of correction, it was felony. if he has been absent for more than two years, he could be put out as an apprentice for seven years in the realm, in the colonies, or in a british factory beyond the seas. included later were performers for gain from outside their parish of any play, tragedy, comedy, opera, farce or other entertainment of the stage, including performances in public places where wine, ale, beer, or other liquors are sold, or else forfeit 50 pounds. exempted were performances authorized by the king in westminster. unlicensed places of entertainment are deemed disorderly (like bawdy houses and gaming houses) because they increase idleness, which produces mischief and inconvenience. persons therein may be seized by a constable. persons keeping such a place shall forfeit 100 pounds. no licensed place of entertainment may be opened until 5:00 p.m. later there was an award of 5s. for apprehending a person leaving his wife and children to the parish, living idly, refusing to work at going rates, or going from door or placing themselves in the streets to beg. this includes begging by persons who pretend to be soldiers, mariners, seafaring men, or harvest workers. these rogues and vagabonds shall be sent to hard labor at a house of correction for up to one month. the real soldiers, mariners, seafaring men, and harvest workers shall carry official documents indicating their route and limiting the time of such passage. persons pretending to be lame who beg are to be removed. if he comes back to beg, his back may be whipped until bloody. if a constable neglects this duty, he shall forfeit 10s. masters of ships bringing in vagabonds or beggars from ireland or the colonies shall forfeit five pounds for each one. this money shall be used for reconveying such people back at a price determined by a justice of the peace. a master of a ship refusing to take such a person shall forfeit five pounds. these vagabonds and beggars may be whipped. anyone who profanely curses or swears shall suffer the following penalties: day laborer, common soldier, common sailor, common seaman 1s., anyone else below the degree of gentleman 2s., gentlemen and above 5s., and for the second offense, a double fine, for further offense, a treble fine. if a person can't pay, he shall be put to hard labor at a house of correction for ten days, or if a common soldier, common sailor, or common seaman, he shall be set in the stocks for 1-2 hours. this is to prevent the provocation of divine vengeance. anyone setting up or maintaining lotteries or deceitful games must forfeit 200 pounds, or go to prison up to 6 months. any one who plays at such, such as by drawing lots or using cards or dice, must forfeit 50 pounds. sales of lottery items, such as houses, lands, plate, jewels, or ships, are void and these items will be forfeited to any person who sues. such have caused many families to become impoverished, especially through their children or through the servants of gentlemen, traders, and merchants. backgammon games are exempt. later, people who lost up to ten pounds in deceitful gaming were allowed to sue to recover this money from the winners. also, anyone winning or losing ten pounds at one time or twenty pounds within 24 hours shall be fined five times the value of such. offenders discovering others, who are convicted, are indemnified from all penalties and shall be admitted to give evidence. no one may run more than one horse, mare, or gelding in a horse race. no prize may be under 50 pounds value. this is because a great number of horse races for small prizes have contributed to idleness, to the impoverishment of the meaner sort of people, and has prejudiced the breed of strong and useful horses. wagers and agreements in the nature of puts and refusals relating to prices of stocks or securities are void. those making or executing such agreements must forfeit 500 pounds. those selling stock which one does not possess must forfeit 500 pounds. brokers negotiating such agreements must forfeit 100 pounds. only a person with an interest in the life or death of another may have insurance on this other, to prevent the mischievous kind of gaming that has been introduced. apples and pears may not be sold by any measure other than a standard water measure, or else forfeit 10s., one-half to the informer, and one-half to the poor, except for measures sealed by the company of fruiterers. this is to decrease the suits between buyers and sellers. there shall be enough silver and gold on silver and gold plated silk thread and wire so that it does not crumble off, thereby wasting the bullion of the nation. this is also to encourage its export by making it competitive in trade with such foreign articles, which may not be imported. malt to be sold or exported must not be fraudulently mixed with unmalted grain to lower duties payable or else forfeit 5s. any one who adulterates coffee with water, grease, butter, and such shall forfeit 20 pounds, 1/2 to the king, and 1/2 to the suer. walnut tree leaves, hop leaves, sycamore leaves and such may not be made to imitate tobacco leaves for sale or else forfeit 5s. per pound. persons near london may not make unsound, hollow, or improperly heated bricks. makers of narrow woolen cloths must weave or set in the head of every piece his initials or else forfeit one pound. this is to prevent frauds and abuses, particularly in stretching and straining the cloth. the fulling mill owner must append his seal of lead with his name and with his measurements. the searcher to be appointed must measure such cloths when wet for conformity to standard measurements and append his seal with his measurements. he may also inspect any places he chooses. in 1774, any wool-making employee not returning all working tools and implements and wool and all materials with which entrusted back to his employer, or who fraudulently steams, damps, or waters such wool, or who takes off any mark on any piece of cloth, shall go to the house of correction for one month. if he absconds with or sells such or anyone fraudulently buys or receives such from him, a search warrant may be issued to seize any other such tools or material. if found, the possessor may be brought to account before a justice of the peace, and if his account is not satisfactory, he shall forfeit such. a search warrant may also be issued for houses on "just cause to suspect" by oath of a credible witness. for a second offense, the penalty is up to three months in a house of correction. for a third offense, the penalty is up to six months in a house of correction and public whipping. bakers must mark their bread with w for white, wh for wheaten, and h for household or else forfeit 20s. to the informer. in 1758, a new assize of bread set prices for rye, barley, oats, and beans by the bushel. the prices for the three qualities of wheat, for wheaten (prized and unprized), and for household grain by the bushel were to be determined from within a statutory range by the local mayor or justice of the peace. mayors and justices of the peace were to determine a fair profit for their local bakers for all the types of bread. a miller, mealman, or baker adulterating bread was to forfeit 40s. 10 pounds, part of which money could be used in publishing his name, abode, and offense in the local newspaper. later, there was a forfeiture of 1-5s. for every ounce underweight. household bread was to be 1/4 cheaper than wheaten or forfeit 10-40s. bread inferior to wheaten was not to be sold at a price higher than household or else forfeit up to 20s. if the forfeiture was not paid, it could be levied by distress, or otherwise the offender was to spend one month in gaol or a house of correction. straw to be sold in london must be sound, firmly bound in a truss, and of a given weight or else forfeit it and 20s. if no truss, and 1s. if in truss but underweight or of mixed quality. handlers must keep registers of sellers, buyers, weights, dates of sale, and prices or else forfeit 10-20s. frame-work knitted pieces and stockings shall be marked with the correct number of threads by the master, frame-work knitter, or master hosier, or forfeit the goods and 5 pounds. if a journeyman apprentice, or servant employ does not mark correctly, he shall forfeit the goods and 5s.-40s. sellers of such shall forfeit the goods and 5 pounds per piece. at every fishing season, the quantity of salt, foreign or domestic, used by a proprietor for curing fish for export shall be accounted and sworn to so that it can be compared with the quantity of fish exported by the proprietor to ensure that the salt duties are fully paid, or else forfeit 40 pounds. if such salt is sold for other uses than curing fish, the proprietor is to forfeit 20s. per bushel sold and the users thereof, to forfeit 20s. per bushel bought, delivered, or used. if one can't pay, he is to be whipped and put to hard labor in a house of correction for up to three months. agreements between coal owners, lightermen, fitters, master or owners of ships, hindering the free sale, loading, and unloading, navigating, or disposing of coals are illegal, null, and void. this is engrossing and has caused the price of coals to go up. no coal trader or dealer may use his own lighters, barges, or other vessels to carry coals on the thames river to and from any ship and to and from any wharf, dock, or creek because this has impaired the business of the watermen and wherrymen, whose vessels must now be registered and display such mark on their hulls. no lightermen nor buyers of coals may act as agent for any master or owner of a ship importing coals into london or else forfeit 200 pounds, because this combination has caused the price of coal to go up. selling one sort of coal for another is punishable by forfeiture of 500 pounds. only standard size coal sacks may be used for selling coal and they must be sealed and stamped by an official at the guildhouse before sale. the mayor and aldermen of london may set the price of coals coming into this port. in other areas, justices of the peace set the prices of coals which allowed "a competent profit". if a merchant refused to sell at that price, the justice of the peace could authorize seizure and sale by officers. later, coal measurers must give the coal cart driver a ticket with the name of the sellers and consumers, the quantity and quality of the coal, its price, the date of sale, and the name of the cart driver or else forfeit 5 pounds. the cart driver must give this ticket to the consumer or forfeit 5 pounds. if coal is carried by cart without a ticket, the seller forfeits 50 pounds and the driver 5 pounds. any owner of timber trees, fruit trees, and other trees used for shelter, ornament, or profit, which are cut down or otherwise destroyed shall be made good by his parish or town, as is an owner of hedges and dikes overthrown by persons in the night. in 1765, anyone cutting down or destroying any oak or other timber trees at night shall forfeit up to 20 pounds for the first offense, up to 30 pounds for the second offense, and shall be transported to the colonies for seven years for any further offense. anyone digging up or destroying or carrying away any root, shrub, or plant worth up to 5s. in a garden, nursery, or other enclosed ground at night shall forfeit up to 2 pounds for the first offense, up to 5 pounds for the second offense, and shall be transported to the colonies for seven years for any further offense. anyone not paying is to be gaoled. aiders and buyers who know the item was stolen shall incur the same penalties. later, many other types of trees, such as beach, ash, elm, cedar, and walnut were included as timber trees, and hollies, thorns, and quicksets included as plants. any person using violence to hinder the purchase or transportation of grain, e.g. by beating or wounding a buyer; beating or wounding the driver or horse of a cart loaded with wheat, flour, meal, malt, or other grain, or cutting the harness of or driving away the horse, or cutting or carrying away the sacks of grain is to be put in the common gaol or house of correction with hard labor for 1-3 months, and whipped in the market place between 11:00 and 2:00. the penalty for a second offense or for destroying a storehouse or granary where grain is kept to be exported or for taking or spoiling such grain, or for throwing such off a ship or vessel is transportation for seven years. the hundreds concerned are to pay damages up to a total of 100 pounds, but only if notice is given to the constable within two days and there is an oath and examination before a justice of the peace within ten days of the owner or his servants. if any offender is convicted within a year, the hundreds are released. anyone who steals at night any cloth or wool or woolen goods set out to dry on racks shall forfeit treble damages, or if he can't pay, be sent to prison for three months without bail. for the second offense, he shall forfeit treble damages and be sent to prison for six months without bail. for the third offense, he shall be transported for seven years. upon complaint, a justice of the peace may authorize a constable or other peace officer to enter and search houses, outhouses, yards, and gardens of a person suspected by the owner. this person shall account to the justice of the peace and may bring a witness to his purchase of the items. if the account is unsatisfactory, he shall be penalized. anyone taking linens, fustians, or cottons set out for whitening, bleaching, or printing up to the value of 10s. in lands, grounds, or buildings may be transported for seven years. later, this penalty was increased to death without benefit of clergy or transportation for fourteen years. anyone stealing or maliciously pulling up or destroying any turnips on a person's land must pay damages or go to gaol for up to one month. he may be whipped. the penalty for a second offense is three months in a house of correction. this statute of 1750 was, in 1773, extended to include potatoes, cabbages, parsnips, peas, and carrots. a penalty up to 10s. was added. evidence of the owner was to be taken. in 1769, anyone who steals a dog or receives such knowing it to be stolen shall forfeit 20-30 pounds for the first offense, and 30-50 pounds for the second offense or go to gaol or the house of correction for 12-18 months and be publicly whipped there. search warrants may be issued to search for stolen dogs or their skins. one-half of the forfeiture will go to the informer. officers of the revenue who collude with importers to return to them goods which have been seized for nonpayment of duties shall forfeit 500 pounds and lose office, unless they disclose their accomplices within two months. the importer shall forfeit treble the value of such goods. any ship not more than 50 tons hovering on the coast with customable or prohibited goods may be boarded by a customs officer, who may demand bond for treble the value of the goods. in 1724, persons contracting with artificers and manufacturers of wool, iron, steel, brass, and other metals, clockmakers, or watchmakers, to go to a foreign country and there receive greater wages and advantages shall forfeit 100 pounds and spend 3 months in prison for the first offense, and shall forfeit a sum determined by the court and spend 12 months in prison for the second offense. an artificer or manufacturer not returning after warning is given by the ambassador is to forfeit hereditaments, goods, and lands and to be deemed an alien. later, in 1750, cotton and silk were included and the penalty was increased to 500 pounds and 12 months in gaol for the first offense, and 1000 pounds and 2 years in prison for the second offense. also, anyone exporting tools of wool or silk manufacture was to forfeit the tools and 200 pounds. this statute was strictly enforced. in 1774, tools of cotton and linen manufacture were included. in 1772, all statutes against engrossing, forestalling, and regrating were repealed because they had prevented free trade and tended to increase prices, e.g. of grain, meal, flour, cattle, and other victuals. anyone assisting a felon (except for petty larceny) to try to escape from gaol, is guilty of felony and shall be transported for seven years. anyone assisting a person who owes or is to pay 100 pounds to try to escape from gaol is guilty of a misdemeanor. in 1772, prison keepers were indemnified from creditors for any escapes of debtors due to conspiracy and break out with weapons and firearms rather than due to negligence of the prison keeper, as had been occurring. no more than 600 pounds of gunpowder may be kept in any building in london or westminster or suburbs thereof. later, no more than 200 pounds of gunpowder were allowed to be kept therein for more than 24 hours. buildings may be searched on "reasonable cause" shown to a justice of the peace. later, no more than 400 pounds of gunpowder could be kept for more than 24 hours near any town, or more than 300 pounds for more than 24 hours in any place. then no gunpowder could be conveyed by land over 25 barrels or by water over 200 barrels. it was customary for officers to take the oaths of allegiance and supremacy to any new monarch. when george i became king in 1714, all civil and military officers, clergy, schoolmasters, and lawyers, solicitors, clerks, etc. living within 30 miles of london had to take an oath of allegiance and a new oath that the person was not papist and agreed that no foreigners had jurisdiction in the realm, such as to excommunicate someone and thus declaring he could be legitimately killed. soon after, it was required that papists had to register their names and real estates. commissioners were appointed to make inquiries. if a person did not take the oaths or did not register, he was to forfeit 2/3 of his land to the king and 1/3 to a protestant who sued for such. this was in order to deter future rebellions against the king and efforts to destroy the protestant religion. as late as 1722, there was a papist conspiracy to take the tower of london and the king, and make a catholic king. this resulted in the imprisonment of the conspirators and a new statute: persons not taking the oath of allegiance and above oath that they were not papist shall register their lands and yearly rents and pay double the land tax and 100,000 pounds. after payment, they are discharged from forfeiting 2/3 of their lands' rents for one year. papists enlisting in the army are liable to corporal punishment, but not death, as determined by a court martial. any mayor, bailiff, or other magistrate who is present at any meeting for public worship other than the church of england will lose office and is barred from any public office or employment. jews may not refuse suitable maintenance to their children who are christian to pressure them to convert back to judaism. black slaves were common for a time in london. this was a result of the voluminous triangle trade of manufactured goods from england, slaves from west africa, and sugar and tobacco from the west indies. slavery was largely abolished by judicial decision of chief justice mansfield in 1772. if a sheriff does not answer for money collected for the exchequer, he shall forfeit treble damages to the aggrieved person, double the sum missing to the aggrieved person, 100 pounds to the king, and 100 pounds to the party who sues. if a sheriff take a fee for levying or collecting money due to the king (except 4d. for an acquittance) or take a sum for not levying money due, he is guilty of extortion, injustice, and oppression and shall forfeit treble damages and costs to the aggrieved person, and double the sum extorted to the aggrieved person. a sheriff may not levy more than 12d. for every 20s. of yearly income of any manor for up to 100 pounds of income, and 6d. for value over 100 pounds. no one may cut pine trees that are fit for masts of ship in new england without license by the queen or else forfeit 100 pounds. later, pine trees on private property were exempted. citizens of great britain may sue colonial debtors by oath before british magistrates and a debtor's colonial lands and houses and negroes may be used to satisfy his debts. anyone pretending to act under a charter and taking subscriptions in great britain or the colonies must forfeit treble damages. no hats, including beaver hats, may be exported from any colony even to another colony because this has hurt british hat manufacture. the penalty is 500 pounds. no one in the colonies except present hatmakers who are householders and journeymen may make hats unless they serve a seven year apprenticeship. no hatmaker in the colonies may have more than two apprentices at once. whaling ships near greenland were prohibited from returning until their hulls were full. vessels built or fitted out in america may engage in whaling. pig iron from the colonies may be imported free, but there may be no mill for slitting or rolling iron and no plateing-forge or other engine to work with a tilt hammer and no furnace for making steel erected or used in the colonies or else forfeit 200 pounds. no paper bills of credit may be used in new england because such have depreciated. william blackstone lectured on law at oxford university in 1753. as a result, the first professorship of english law was established. his lectures were published in 1769 as the "commentaries on the laws of england". they greatly influenced the american colonists and were the basis of legal education in england and america for years. they were comprehensive and covered real property, crime and punishment, court procedure, contract, corporations, and commercial law. he wrote "the great charter and charter of the forest" in 1759. judicial procedure for actions under 10 pounds in a superior court and actions under 40s. in an inferior court, the offender shall be served with process to appear in court rather than being arrested. for money at issue, an affidavit shall be taken. no more money may be taken for bail than the amount at controversy. this is to prevent frivolous and vexatious arrests. perjurers, forgers, those involved in barratry or suborning perjury, and pretenders practicing as attorneys or solicitors in the courts of law or equity shall be transported for seven years to the american colonies. unqualified people acting as attorneys or solicitors in the county court shall forfeit 20 pounds. no one may practice as an attorney in the courts of king's bench, common pleas, or exchequer until he has been examined by a judge of such court on his fitness and qualifications and has taken the oath to honestly demean himself and practice according to his best knowledge and ability. the same applies to a solicitor in the equity courts. this shall not exclude persons who have been bound to an attorney or solicitor for four years. attorneys and solicitors, with consent of an attorney of another court, may participate in proceedings of such other court. no attorney may have more than two clerks bound to him at one time. attorneys may be admitted as solicitors and vice-versa. there were twelve common law justices of the court of the king's bench, court of common pleas, and court of the exchequer. the chief justices of all of these courts were paid partly from fees paid to the court. the other justices of these courts were paid completely by salary, which in 1759 was well over 500 pounds per year. these justices were to continue in office even after a king died and could be removed only for good cause upon the address of both houses of parliament. the officers of these courts were attorneys. there was one justice at doctors' commons. the two chancery justices (since edward i) were the lord chancellor and the master of the rolls. the salary of the eleven masters of the court of chancery in 1765 was 400 pounds per year. the officers of this court were solicitors. appeals from the exchequer could be made to a court of the king's bench and common pleas combined. appeals from common pleas could be made to the king's bench. decisions of the king's bench and other common law courts could be appealed to parliament. the common law courts rode circuit twice a year in five circuits and once a year in the north circuit. so an accused person could spend up to a year in gaol waiting for trial. few prisoners were granted bail. in each common law court, the law justices in banc would hear demurrers [contentions that the other party was wrong in the law]. no one with an interest in a suit, including the plaintiff and the defendant, could give evidence. there was no power to amend pleadings, so misspelling of the defendant's name, for instance, could result in dismissal of the suit. in 1730, the pleadings and indictments ceased to be in latin. compurgation still existed for debt and detinue. writs of error at variance from the original record or otherwise defective may be amended to correct the defect by the court where such writ is returnable. no judgment is to be reversed for any defect in any bill or writ, excepting an appeal of felony or murder, or misdemeanor. this is to prevent delays of justice. justices of the peace may correct defects of form on appeals to them. plaintiffs neglecting to go to trial after an issue has been joined may be nonsuited. the qualification for jury service is having land with an income over rents of at least 20 pounds, with leases for 500 years or more, or 99 years, or any term determinable on one or more lives. being a freeholder is not necessary. in london, the qualification is being a householder and having lands to the value of 100 pounds. no sheriff may excuse a qualified person from jury service for money or other reward. selection of jurors for each case is to be done by some impartial person pulling their names from a box. later, persons refusing jury service could be fined. poor persons may be paid up to 6d. to give evidence against felons. pirates may not be tried again for the same crime or for a certain crime and high treason. when the marine force was raised, the marines were also given protection from double jeopardy. in chancery, a plaintiff filed a complaint and interrogatories prepared by counsel. only in chancery could there be discovery, such as interrogatories [written questions]. court officials asked the questions of witnesses without the presence of the parties or their lawyers. officials wrote down the answers in their own terms so there was no cross-examination possible. most decrees took many years to be made. the ordinary administrative court of first instance is that of one or two justices of the peace who issued orders in matters of public safety, public order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, fire, begging, and vagrancy. they examined suspicious persons and issued warrants for the removal of any person likely to become a public charge. the justice of the peace also regulated wages, servants, apprentices, and day laborers. in his judicial capacity, he tried all crimes and felonies except treason, though in practice death penalty cases were transferred to the assize justices. the justices of the peace of a hundred hold special sessions such as for appointment of parochial officers, highway disputes, and the grant of wine, beer, and spirit licenses. the appointment of overseers of the poor, authorization of parish rates, and reading of the riot act to mobs to disperse them, required more than one of the justices of the peace of the hundred to participate. all the justices of the peace of the county met four times a year at quarter sessions to hear appeals from penal sentences, to determine the county rate of tax, to appoint treasurers of the county and governors of the county prison and house of correction, to issue regulations on prices of provisions and on wages, to settle fees of the county officials, to grant licenses for powder-mills and other industries, to hear nuisance complaints such as those against parishes failing to keep their roads in repair, to make regulations for the holding of markets, to hear complaints concerning local government, and to register dissenting chapels. in more and more matters specified by statute, the quarter sessions heard appeals from the orders of individual justices of the peace instead of common law courts hearing them by writ of certiorari. the writ of certiorari allowed administrative decisions to be reviewed by the common law courts for compliance with law, competency of the court, and interpretation of the administrative law. the writ of habeas corpus appealed administrative decisions to imprison not only after arrest for criminal proceedings, but any coercive measure for enforcing an administrative order. the writ of mandamus was available for enforcing the injunctions of administrative law against towns, corporations, and all other authorities and private persons, where the ordinary punishments were insufficient. justices of the peace in rural areas were squires and in towns aldermen. in 1747, justices of the peace were authorized to decide issues between masters and mistresses and their employees who were hired for at least one year. if a servant misbehaved, they could authorize reduction of wage, discharge, and hard labor at a house of correction up to one month. if a servant was not paid, he could authorize payment of wages up to 10 pounds for an agricultural servant, and up to 5 pounds for an artificer, handicraftsman, miner, collier, keelman, pitman, glassman, potter, or ordinary laborer. later, tinners and miners were added to the last category. in 1758, employees of less than a year were included. in 1775, justices of the peace were authorized to administer any oath for the purpose of levying penalties. to be a justice of the peace, one must have income of 100 pounds a year from a freehold, copyhold, or customary estate that is for life or for a term of at least 21 years, or be entitled to a reversion of lands leased for 1 or 2 or 3 lives, or for any term of years determinable on the death of 1 or 2 or 3 lives. excepted were peers, justices, and heads of colleges or vice chancellors at the universities. the justices of the peace were selected by the superintending sheriffs and lords lieutenant, the latter of whom were usually peer with a ministers' office or a high court official. no attorney or solicitor or proctor could be a justice of the peace unless the locality had justices of the peace by charter. a request for certiorari for removal of convictions, judgments, orders made by justices of the peace must be made within six months and after notice to the justice of the peace who may argue cause against granting certiorari. in the common law courts, trespass in ejectment served the purposes of most of the actions involving land. assumpsit covered the whole province of debt, and much more. trover more than covered the old province of detinue. trespass still served for all cases in which the defendant had been guilty of directly applying force to the plaintiff's body, goods or chattels. trespass on the case covered miscellaneous torts. replevin was still used. covenant remained in use for the enforcement of promises under seal. account gradually came under the equity jurisdiction of chancery. common law writs of dower are largely superseded by the relief given to the doweress in the courts of equity, where new and valuable rights were given to her and to her personal representatives against the heir and his representatives. the actions of indebitatus assumpsit is being extended to actions upon quasi-contract, in which the element of contract is not required e.g. quantum meruit, where a contract is implied from the facts of the case. mercantile law was developed by the common law courts, especially the king's bench. the king was to appoint the marshal of the king's bench. the marshal was to select his inferior officers to hold office as long as they "behave themselves well within". these offices had been sold by james i to a certain person, his heirs, and assigns. the marshal was to keep the prison of this court in good repair from his fees and profits of office. the office of sheriff was now an accessory department of the common law courts for summons, executions, summoning the jury, and carrying out the sentence of the law. summons for excise offenses may be left at a person's abode, workhouse, or shop as well as on his person. the coroner's office now investigated unusual deaths with a jury from the neighborhood elected by county freeholders. the last beheading was of a scottish lord in 1747; he had been involved in an attempt to restore the stuarts to the throne. so many people came that some overcrowded bleachers fell down and crushed about 20 spectators. henceforth, every sentence of death was by hanging, even for peers. in 1772, the process of pressing a man to death, if he refused to plead to an indictment was abolished. instead, persons accused or indicted, in great britain or america, of felony or piracy who stand mute shall be convicted of such charge. property of a felon was still forfeited to the crown. from 1749 on were established special procedures for speedy decisions in local courts in some areas for debts or damages under 40s. and imprisonment for such was limited for up to three months. otherwise, sentences were longer, and debts grew during the time in prison. when prisons were overcrowded, parliament let the inmates out if they gave up their possessions. they could go to georgia. in 1763, the homes of john wilkes and others were searched for a seditious and treasonous published paper and all related papers because they had been rumored to have some relationship to the conception, writing, publication, or distribution of the paper. wilkes had such papers and was convicted of libel. he countersued for damages due to criminal trespass. the court held that general search warrants were subversive of the liberty of the subject of the search in violation of the british constitution, declared the statute void, and found for wilkes. the court of common pleas agreed on appeal and put the burden of proof on the persons searching to justify the search warrant. his decision gave support to william pitt's assertion that "every man's home is his castle". there were felons' prisons and debtors' prisons. sometimes they were one and the same. there was much fighting among inmates. the inmates slept on hay if lucky. there were no washing facilities and little light. counties or friends paid for their bread. they were also sold beer, which made them drunk and riotous. the sale of beer was a recognized and legitimate source of profit to the keeper. this was remedied by statute of 1760 that no sheriff or other officer may take an arrested person to a tavern or other public house or charge him for any wine, beer, ale, victuals, tobacco or other liquor without his consent and shall allow prisoners to be brought beer, ale, victuals, bedding, and linen as the prisoner sees fit. sheriffs often kept people imprisoned unless and until they paid all their fees due to the sheriff. in 1772 was founded the society for the discharge and relief of persons imprisoned for small debts for those inmates unfortunate instead of fraudulent or extravagant. legacies were often made to debtors. there was much gaol distemper fever with fatal consequences. when john howard, a grocer who had inherited wealth, but poor health, became a sheriff, he visited many gaols. when he saw the squalid conditions there, he advocated hygienic practices. in 1774, justices of the peace were authorized to order walls and ceilings of gaols to be scraped and washed, ventilators for supplies of fresh air, a separate room for the sick prisoners, commodious bathing tubs, provision of clothes for prisoners, keeping of prisoners not below the ground, and apothecaries at a stated salary to attend and to report the state of health of prisoners. in 1773, clergymen were employed in gaols to alleviate the distress of prisoners and to contribute to morality and religion. also, no longer may any fees be taken by gaol keepers or sheriffs because persons not indicted or found not guilty have been kept in prison pending payment of such fees. instead, the counties shall pay to gaol keepers up to 13s.4d. per prisoner so discharged. colonials acts which infringed upon the english common or statutory law, or were against the interests of other american colonies were submitted to the privy council, which allowed or disallowed them. appeals from the colonial courts came to the privy council. judges in the colonies were appointed by royal governors and paid by colonial legislatures. they served at the pleasure of the king. colonial courts included superior courts of judicature, courts of assize, general gaol delivery, general sessions of the peace, inferior court of common pleas, and commissions of oyer and terminer. there were also justices of the peace, marshals, provosts, and attorney generals. there were few cases of vagrancy, theft, or homicide. this may have been because the people were few and dependent on each other, and economic opportunities were great. in 1735 john peter zenger, printer of the new york weekly journal, was tried for seditious libel for its criticisms and satire of the new york governor, who exceeded his powers, such as by demanding that bills from the assembly be presented to him before the council, and by arbitrarily displacing judges. seditious libel was defined as "false, scandalous, and seditious" writings. traditionally, this word "false" could mean "disloyal". the prosecution argued that truth of such criticism was an aggravation of the crime because it was more provoking of sedition, as found by star chamber cases. the defense argued for a right publicly to remonstrate abuses of power by public officials to guard against violence and destruction of liberties by men in authority. the american jurors, who were supposed to be familiar with the facts pertinent to the case, knew the truth of the paper's criticisms. they agreed with the defense that the word "false" in the definition: "false, scandalous, and seditious" writings, to mean "untrue" instead of "disloyal". so truth became a defense to seditious libel. pamphletts describing the zenger trial and acquittal were published and republished in london and the colonies. benefit of clergy for certain crimes was available in the american colonies to all who could read and write. for instance, t could be used in trials for manslaughter. chapter 19: epilogue in the time period after 1776, there developed the fuel-saving kitchen range with closed-in-fire between oven and hot-water tank, hot and cold running water, the use of flushing toilets, edmund cartwright's power weaving machine, samuel crompton's mule for spinning many threads by waterpower in 1779, james watt's steam engine with steam pushing the piston both ways as well as rotary motion and used in many kinds of factories instead of water power, henry bessimer's inexpensive low carbon steel in 1856, iron and steel bridges and ships, drilling and use of oil and natural gas as fuel, adam smith's "wealth of nations" opining that competition of the market could distribute resources best, thomas paine's "rights of man", free trade, democracy, popular elections, secret ballots, universal suffrage, civil service without patronage, mary wollstonecraft's "vindication of the rights of women", university education for women (university of london), policemen (in london in 1829), clipper ships (the final development of sailing before steam), percussion caps on guns, periodic chart of chemical elements, college degrees in biology, chemistry, and physics, geology, maxwell's theory of electromagnetism, albert einstein's theory of relativity, quantum theory, laws of thermodynamics that the energy of the universe is a constant amount but entropy always increases, computers, decoding of the dna sequence, charles darwin's evolution, joseph lister's disinfectant in 1867, edward jenner's smallpox vaccine, louis pasteur's germ theory of disease, anesthetics, aspirin, insulin, penicillin, antibiotics, surgery to replace body parts, tampon, contraceptive pill, discovery of planet uranus by observation and thence of neptune and pluto by calculation from discrepancies in uranus' orbit, hubble space telescope, big bang theory, buses (horse-drawn from 1829 with 18 passengers), subways, trains (1804), public railway (1825, goods drawn by engine and passengers by horse), steam ships, steel ships, aircraft carriers, submarines, tanks, friction matches, chewing gum, pajamas, gas street lamps, traffic lights and signs, ambulances, concrete and asphalt highways, census in 1801, children's playgrounds, knee length dresses, chemical artificial fertilizers, substitution of steel for iron, trade unions, digital watches, wrist watches, compact disks, intelligence tests, personality tests, wool-combing machine, statistical analysis, bell curves, standard deviations, united nations, carpet sweeper, vacuum cleaner, central heating, apartment high rises, business skyscrapers, electricity, electric lights, sewing machines, water closets in richer houses (after 1778), cholera epidemics, sewers for waste disposal, industrial revolution factories, labor strikes, cars, tractors, charles dickens, ice boxes and refrigerators, telephones, central heating with radiators, hot water heaters by gas, gas ovens, humidifiers, canned food, fourpronged forks, suits of matching jackets and trousers, zippers, velcro, wall-to-wall carpeting, popular elections, airplanes, photography, record players, frozen food; cast iron kitchen range for cooking, baking, and boiling; radio, television, plastics, submarines, economics, multinational corporations, weather forecasting, braille, airplanes, space ship to moon, factory assembly lines, washing machines, dishwashers, sewing machine, microwave ovens, copier machines, dna evidence, nuclear bomb and nuclear energy, guided missiles, quartz watches, bicycles, artificial insemination and invitro fertilization, investment advice, retirement planning, amusement parks, catalogue buying, labor contracts, childrens' summer camps, teenage culture, synthetic materials, typewriters, cardboard boxes, marketing studies, factory assembly line, gene-mapping, animal cloning, internet, hiking and camping trips, world travel vacations, telegraph, word processing, gas, oil, research, credit cards, dental floss, camcorders, mass production, nursing homes, cameras, copy machines, wheelchairs, hospital operations, artificial limbs, organ transplants, pharmacies, public circulating libraries, children's playgrounds, cosmetic surgery, physical exercising equipment, vitamin pills, sports clubs, condominiums, molecules, chromosomes, observatories, radar, sonar, nutrition, supermarkets, disability insurance, liability insurance, chemical fertilizers, ddt, record players, video tape recorders, retirement homes, movies;, planned obsolescence, box-spring mattresses, brain scans, x-rays, organized professional sports, dry cleaners, foreign embassies, psychiatry, veterinarians, drug abuse, wage garnishment, tractors, lawnmowers, breeding zoos, world wars, nuclear deterrence, fingerprinting, forensic evidence, toxic waste, acid rain, elevators, picture windows, sewing machines, automation, cybernetics, pizza delivery, health insurance, walt disney, satellite transmission, radiocarbon dating, ice cream, air conditioning, ball point pens, school blackboards, bullets in 1890s, electronic mail, first law of thermodynamics: the conservation of energy, the second law of thermodynamics: potential energy turns into high-temperature thermal energy and finally into low-temperature thermal energy, but these processes are not reversible. the science of philology, on the meaning and history of words began the concept of a natural development of languages which conflicted with the theological view that god had created all the different languages when he punished man for trying to build an edifice to heaven by destroying the tower of babel and dispersing the people into all parts of the world with different languages derived from the original: hebrew, so that they could not communicate with each other. the science of geology developed the concept of tremendous changes in the earth's surface which altered horizontal layers of deposits, in which there were fossils, which challenged the biblical notion of a world and all its animals created in a week. in 1784, lord henry cavendish proved that the sole result of mixing hydrogen with oxygen was water, thus disproving the theory of the four elements of air, earth, fire, and water. in the united states, there was no king, a separation of the executive, the legislative, and the judicial; a separation of church and state, and no aristocratic titles. in this time period the development of law includes abandonment of common law crimes such as seditious libel in the united states, negligence and duty of due care in the united states replacing the english strict liability for torts, substitution of the caveat emptor doctrine for the english sound price doctrine in contract law in the united states, truth as a defense to charge of libel in the united states, repeal in england of seven year requirement for apprentices in 1814, married women's property acts beginning 1839: (1. right to sue and be sued, 2. right to her own earnings, 3. right to own real and personal property, 4. right to make contracts 5. right to stay in family homestead with children, right to custody of children if husband abandons her), divorce in england by courts in 1857, in united states extension of grounds for divorce beyond adultery, bigamy, and desertion to cruel treatment, habitual drunkenness, and conviction of a felony and finally no-fault divorce, decline of father's paramount claim to the custody of his minor children in the absence of a strong showing of misconduct or unfitness, tender years doctrine (in england in 1839 mother to have custody of child under seven and to have access over seven) and then best interests of child doctrine in custody disputes, legal obligation for parents to support their minor children, adoption about the 1850s; in england allowance of women attorneys in 1922, women to vote in 1928, adultery by a husband to be adjudged as culpable as adultery by a wife in 1923, the rights of a mother over her child to be equal to those of a father in 1924, and the rights of a woman to property to be the same as those of a man in 1926; child labor laws, full religious freedom with admission of nonconformists to the two universities in england in 1871, probable cause instead of suspicion for search and seizure, mandamus, rule against perpetuities, mandatory secondary education, kidnapping, false impersonation, liens, obscenity, estoppel for detrimental reliance on a promise, unjust enrichment, pensions, trademarks and unfair competition, antitrust, privacy, freedom of thought, freedom of speech, freedom of the press, bankruptcy, civil rights, union organizing laws, laws on discrimination due to race, sex, ethnic or national origin, disability, age, and sexual preference; sexual harassment and stalking laws, product liability, international law, environmental laws protecting air and water quality, workers compensation, unemployment compensation, controlled substances, intellectual property law; and contingency fees only in the united states, in england, there was an end of trial by combat in 1819, of compurgation in 1833, and of benefit of clergy. in 1820, there were 160 offenses in england with the death penalty, including stealing from a dwelling house to the value of 40s., stealing from a shop to a value of 5s., and stealing anything privily from the person. the penalty for treason was still drawing and quartering. it was a privilege of the peerage to be immune from any punishment upon a first conviction of felony. as of 1823, church courts could no longer decide cases of perjury; as of 1855, no cases of defamation, but only church matters. hearsay rules and exceptions were developed in the 1800s. in 1816, jurors were to have no knowledge except the evidence accepted at court. in 1837, counsel for a person indicted for high treason could examine and crossexamine witnesses. in 1839, a defendant could see the written record of evidence against him. in 1898, the accused was allowed to give evidence. pleaders do not have to specify the form of action relied on, but rather give facts which give rise to a cause of action. judicial procedure includes grand juries, which hear evidence, court transcript by court stenographers, discovery, depositions, and presumption of innocence (after salem witch trials in the united states). the united states changed judicial procedure in several respects: parties were allowed to testify, writ pleading was abandoned, and prisons were used for reforming prisoners. debtors prisons were abolished. also, the law was seen not as divinely inspired eternal law to be found by judges, but law made by man to suit the times. state judges served for life during good behavior; they could be removed by the procedure of impeachment. in some states, judges were elected. there were privileges on testimony such as attorney-client, priest-confessor, and husbandwife. appendix: sovereigns of england accession name 871 alfred the great 899 edward the elder son of alfred 924 aethelstan son of edward the elder 939 edmund son of edward the elder 946 eadred son of edward the elder 955 eadwig son of edmund 959 edgar son of edmund 975 edward the martyr son of edgar 978 aethelred the unready son of edgar 1016 edmund ironside son of aethelred the unready 1016 canute 1035 harold i harefoot son of canute 1040 hardicanute son of canute 1042 edward the confessor son of aethelred the unready 1066 harold ii 1066 william i, the conquerer 1087 william ii son of william i 1100 henry i (and matilda) son of william i 1135 stephen 1154 henry ii (and eleanor) grandson of henry i 1189 richard i, the lion-hearted son of henry ii 1199 john son of henry ii 1216 henry iii son of john 1272 edward i (and eleanor) son of henry iii 1307 edward ii son of edward i 1327 edward iii son of edward ii 1377 richard ii grandson of edward iii 1399 henry iv 1413 henry v son of henry iv 1422 henry vi son of henry v 1461 edward iv 1483 edward v son of edward iv 1483 richard iii 1485 henry vii (and elizabeth) 1509 henry viii son of henry vii 1547 edward vi son of henry viii 1553 mary daughter of henry viii 1558 elizabeth i daughter of henry viii 1603 james i 1625 charles i son of james i 1649 oliver cromwell 1660 charles ii son of charles i 1685 james ii son of charles i 1689 william and mary 1694 william iii 1702 anne granddaughter of james ii 1714 george i 1727 george ii son of george i 1760 george iii son of george ii bibliography 1. ancient laws and institutes of england, printed by command of his late majesty king william iv under the direction of the commissioners of the public records of the kingdom, vol 1; 1840. 2. the laws of the kings of england from edmund to henry i, a.j. robertson, 1925. 3. the statutes of the realm 4. statutes at large 5. a treatise of the lawes of the forest, john manwood, 1615 6. history of english law; william holdsworth 7. history of english law, pollack and maitland, 1895 8. anglo-saxon charters, a. j. robertson, 1939 9. franchises of the city of london, george norton, 1829 10. borough customs vol. 1, selden society, 1904 11. royal writs in england from the conquest to glanvill, selden society, 1959 12. lawsuits in time of wm i, selden society 13. treatise on the laws and customs of the realm of england, ranulph d. glanvill, 1189 14. calendar of wills, court of husting, london; ed. reginald r.sharpe 15. calendar of early mayor's court rolls of the city of london, ad 1298-1307, ed. a. h. thomas 16. legislation of edward i, t.f.t. plunkett, 1949 17. english historical documents, ed. david douglas 18. bracton on the laws and customs of england, henry of bratton,1257 19. chaucer's world, edith richert, 1948 20. john, king of england, john t. appleby, 1958 21. a collection of eighteen rare and curious historical tracts and pamphletts, edinburgh, priv. print. 22. doctor and student, christopher st. germain, 1518 23. readings in western civilization, george kuoles, 1954 24. social england, ed.: h.d. traill, st. john's college, oxford; vol. 1 and 2, 1894. 25. augustine of canterbury, margaret deanesly, 1964 26. the venerable bede, ecclesiastical history of the english nation 27. political history of england; t. hodgkin 28. alfred the great, helm, 1965 29. domesday, a search for the roots of england, m. wood, 1988 30. the english church 1000-1066; f. barlow, 1979 31. life on the english manor; h.s. bennet; 1967 32. the english medieval town; colin platt; 1976 33. london weavers' company, francis consitt, 1933 34. the gild merchant, charles gross, 1890 35. life and times of roger bacon 36. oxford book of oxford, jan morris, 1978 37. a history of oxford university, vivian green, 1974 38. lives of the lord chancellors, campbell, 1880 39. gilds and companies of london, george unwin, 1966 40. a history of technology, charles singer, 1954-1978 41. edward i, michael prestwich, 1988 42. franchises of the city of london, george norton, 1829 43. the works of alfred 44. salisbury plain, r. whitlock, 1955 45. william the conqueror, f.m. stenton, 1967 46. life of william the conqueror, t. roscoe, 1846 47. elizabeth i, anne somerset, 1992 48. queen elizabeth, katherine anthony, 1929 49. industry in england, h.deb. gibbons, 1897 50. henry ii, w. l. warren, 1973 51. edward i, l.f. salzman, 1968 52. the yorkist age, paul kendall, 1962 53. edward the confessor, frank barlow, 1970 54. the livery companies of the city of london, w. carew hazlitt, 1892 55. parliamentary representation of the city of coventry, thomas whitley, 1894 56. the government of england under henry i, judith green, 1986 57. lives of the queens of england, agnes strickland, 1878 58. the oldest version of the customs of newcastle, c. johnson, 1925 59. charter of henry ii to the burgesses of newcastle, a. m. oliver, 1175 60. the charters and letters patent granted by the kings and queens of england to bristol, samuel seyer, 1812 61. magna carta, legend and legacy, william swindler, 1965 62. chronicles and memorials of great britain and ireland during the middle ages: letters and papers of richard iii and henry vii 63. sons of the conqueror, g. slocombe, 1960 64. the spirit of the classical canon law, richard helmholz, 1996 65. open fields, charles orwin, 1938 66. the medieval foundation of england, arthur bryant, 1967 67. from alfred to henry iii, 871-1272, christopher brooks, 1961 68. the anglo-norman nobility in the reign of henry i: the second generation, charlotte newman, 1988 69. the birth of britain vol. 1, winston s. churchill, 1956 70. medieval london, gordon hoime, 1927 71. a history of london, stephen inwood, 1998 72. tudor england, john guy, 1988 73. reign of henry vii, r. storey, 1968 74. elizabethan life in town and country, m. st. claire byrne, 1925 75. the elizabethan world, edited by norman kotner, 1967 76. the evolution of modern medicine, william osler, 1921 77. shakespeare's england, oxford university press, 1916 78. the lion and the throne, catherine bowen, 1956 79. johnson's england, ed. a.s. turberville, 1933 80. education in renaissance england, kenneth charlton, 1965 81. the scholastic curriculum of early seventeenth-century cambridge, william costello, 1958. 82. english people on the eve of colonization 1603-1630, wallace notestein, 1954 83. sir walter ralegh, willard wallace, 1959 84. sir walter ralegh, robert lacey, 1974 85. constitutional documents of the reign of james i, j.r. tanner, 1961 86. history of the english people, volumes iii and iv, green 1890 87. hume's history of england, volumes v and vi, david hume 88. english society 1580-1680, keith wrightson, 1982 89. the century of revolution 1603-1714, christopher hill, 1961 90. charles i and the puritan upheaval, allen french, 1955 91. charles i, christopher hibbert, 1968 92. constitutional documents of the puritan revolution 1625-1660, samuel gardiner, 1927 93. life and work of the people of england in the 17th century, dorothy hartley et al, 1929 94. home life under the stuarts, elizabeth godfrey, 1903 95. cromwell the lord protector, antonia fraser, 1973 96. the greatness of oliver cromwell, maurice ashley, 1957 97. acts and ordinances of the interregnum 1642-1660, c.h.firth & r.s.rait, 1911 98. history of the english people, john r. green, 1916. 99. a social and industrial history of england, f.w. tickner, 1929 100. a history of everyday things in england, marjorie and chb quennell, 1919 101. the english, norman f. cantor, 1967 102. a concise economic history of britain, john clapham, 1951 103. world book encyclopedia 104. encyclopedia britannica 105. history of the english constitution, rudolph gneist, 1889 106. the life of the law, alfred knight, 1996 107. norton anthology of english literature, ed. m.h.abrams, 1962 108. the bank of england, john clapham, 1945 109. the honorable company, a history of the east india company,john keay, 1991 110. a history of british india, w.w. hunter, 1966 111. the bank of england, john clapham, 1945 112. early speculative bubbles and increase in the supply of money, m.a. thesis, douglas e. french, 1992 113. royal charles, antonia fraser, 1980 114. charles ii, ronald hutton, 1989 115. the life and times of charles ii, christopher falkus, 1972 116. life in a noble household 1641-1700, gladys thomson, 1959 117. the weaker vessel, antonia fraser, 1984 118. a constitutional and legal history of medieval england, bryce lyon, 1960 119. the laws respecting women, j. johnson, 1777 120. mediaeval england, mary bateson, 1904 121. elizabeth: the struggle for the throne, david starkey, 2001 122. a social history of england, asa briggs, 1983 123. the year 1000, robert lacey, 1999 124. a history of chemistry, charles-albert reichen, 1963 125. john locke, economist and social scientist, karen vaughn, 1980 126. becoming visible, women in european history, ed. bridenthal & koonz, 1977 127. wonder book of the world's progress; inventions and customs, henry williams, 1935 128. industrial revolution in the eighteenth century, paul mantoux, 1961 129. eighteenth century england, dorothy marshall, 1962 130. georgian england, a.e. richardson, 1931 131. the pageant of georgian england, elizabeth burton, 1967 132. the georgian gentleman, michael brander, 1973 133. england in the eighteenth century, j.h. plumb, 1950 134. london life in the eighteenth century, m. dorothy george, 1925 135. law and jurisprudence in american history, stephen presser & jamil zainaldin, 1995 136. england in the age of hogarth, derek jarrett, 1974 137. the first four georges, j.h. plumb, 195 138. the review of american colonial legislation by the king in council, elmer russell, 1915 139. select pleas of the crown, f.w. maitland, 1888 140. select pleas in manorial and other seignorial courts, f.w.maitland, 1889 141. the forms of action at common law, f.w. maitland, 1909 142. equity, f.w. maitland 143. the story of the declaration of independence, ira g. corn, jr., 1977 144. internet medieval sourcebook 145. out of the fiery furnace video, robert raymond 146. a history of chemistry, charles reichen, 1963 147. seven ideas that shook the universe, nathan spielberg, 1987 148. a history of the warfare of science with theology in christendom, andrew white, 1955 149. american political and social history, harold faulkner, 1941 150. essays in science, albert einstein, 1934 151. the character of physical law, richard feynman, 1965 152. dictionary of national biography, george smith, 1882 153. elizabeth i: collected works, ed. leah marcus et al, 2000 154. the crime of galileo, giorgio de santillana, 1955 155. from copernicus to einstein, hans reichenbach, 1942 156. the horizon book of the elizabethan world, ed. richard ketchum, 1967 157. tower of london, christopher hibbert, 1971 158. tudor royal proclamations, ed. p.l. hughes & j.f. larkin, 1964 159. selected historical essays of f.w.maitland, ed. helen cam, 1957 160. lloyd's of london, raymond flower & michael jones, 1974 161. weather, philip thompson etc., 1965 162. constitutional history of england, william stubbs, 1891 163. hillforts of england and wales, james dyer, 1981 164. the last two million years, reader's digest association, 1973 165. london: the civic spirit, robert goldston, 1969 166. domestic life in england, norah lofts, 1976 167. descartes, tom sorell, 1987 168. life in the english country house, mark girouard, 1978 169. extraordinary origins of everyday things, charles panati,1987 170. god's peace and king's peace: the laws of edward the confessor, bruce o'brien, 1999 171. the bill of rights, irving brant, 1965 172. issac newton, adventurer in thought; a. rupert hall, 1992 173. the life of issac newton, richard s. westfall, 1993 174. a history of the circle, ernest zebrowski, 1999 175. the world of water, j. gordon cook, 1957 176. the western intellectual tradition, j. bronowski & mazlish, 1960 177. human accomplishment, charles murray, 2003 178. magic, myth and medicine, d.t.atkinson, m.d., 1956 179. scientists who changed the world, lynn and gray poole, 1960 180. the new treasury of science, ed. harlow shapley, etc., 1965 181. food in history, reay tannahill, 1973 182. home, a short history of an idea, witold rybczynski, 1986 183. english villagers of the thirteenth century, george c. homans, 1941 184. pelican history of england: 1. roman britain, i.a. richmond, 1955 2. the beginnings of english society, dorothy whitelock, 1952 3. english society in the early middle ages, doris stenton, 1951 4. england in the late middle ages, a.r. myers, 1952 5. tudor england, s.t. bindoff, 1950 6. england in the seventeenth century, maurice ashley, 1952 the end index abbey; abbot, abbess; abduction; accessory; account; administrator; admiralty; adultery; adverse possession; adulterated; advowson; aethelbert; aethelred; affidavit; agreement; agriculture; augustine. st.; aids; alderman; ale; alehouses; alfred; alienate; aliens; allegiance; alms; amerce; america; anabaptist; ancient; anglo-saxons; anglo-saxon chronicles; annulment; apothecaries; apparel laws; appeal; appellate; apprentices; appurtance; archbishop; architect; aristotle; arkwright, richard; arraign; arson; arthur; articles of religion; artificer; artisan; assault; assay; assign; assize; assizes; assumpsit; astrology; at pleasure; atheism; attainder; attaint; attorneys; babies; bachelor; bachelor of arts; back-berend; bacon, francis; bacon, roger; bacteriology; bail; bailiff; baker; ballads; bank of england; bankruptcy; baptist; bar; barber; barber-surgeon; bargain and sale; barons; baron court; barristers; bastard; bath; battery; beadle; beating; becket; beer; beggar; benefit of clergy; benevolence; beowulf; bequeath, bequest; bible; bigamy; bill; bill of attainder; bill of exchange; bill of rights; billet; birmingham; bishops; black death; blackstone, william; blinding; blodwite; blood-letting; book of common prayer; bordars; borough; boston; bot; boyle, robert; bracton, henry de; brass; brawling; breach; breach of the peace; bread; brewster; bribery; brick; bridge; bristol; brokers; bullock, case of; burgess; burglary; burh; burial; burning; butcher; butler; calais; calvin; cambridge university; canals; cannon; capitalism; carbon dioxide; carpenter; carriages; carucage; carver; castle; castle-guard; cathedral; catholics; cattle; cavaliers; cecil, william; censorship; ceorl; certiorari; challenge; champerty; chancellor; chancery; chancery court; charter; chattel; chaucer, geoffrey; chemistry; chevage; chief justice; chief justiciars; child; child abuse; children; childwyte; christian; chivalry; christmas; church; church of england; church sanctuary; cicero; circuit; citizen; city; civil; civil courts; civil war; claim; clans; class; clergy; clerics; cloth-maker; coaches; coal; coffee houses; coin; coke, edward; college of physicians and surgeons; colonies; commission; common land; common law; commons, house of; commonwealth; compurgation; compurgator; confession; congregationalists; conqueror; consideration; constable; constitution; contract; conventile; conveyance; conviction; cooper; copernicus; copper; copyhold; copyrights; cordwainer; coronation charter; coroner; corporation; corruption of the blood; council; counterfeit; county; county courts; courtesy; court of common pleas; court of high commission; court of king's bench; courtesy; court martial; covenant; coverture; coventry; craft; craft guild; cranmer, thomas; creditor; crime; criminal; cromwell, oliver; cromwell, thomas; crown; cupbearer; curfew; currier; custody; customary tenant; customs; damages; danegeld; danes; darrein presentment; daughter; death; death penalty; debt, debtors; deceased; decree; deed; deer; defamation; defendant; demesne; denizen; deodand; descendant; descartes, renee; desertion; detinue; devise; dispensary; disseisin; dissenter; distraint; distress; divorce; doctorate; dog; doomsday book; doublet; dower; dowery; drake, francis; drover; drunkenness; duel; during good behavior; duties; dwelling; dyers; earl; east india company; easter; ecclesiastic; edith; education; eleanor, wife of edward i; eleanor, wife of henry ii; election; electricity; elizabeth, wife of henry vii; embroiderer; enclosure; english; engrose; episcopal church; equity; equity court; erasmus; escape from gaol; escheat, escheator; escuage; esquire; established church; estate; estate administration; estate tail; euclid; exchequer; excommunication; excise tax; executor; export; extent; eyre; factory; fair; father; fealty; fee; fee simple; fee tail; felony; feme covert; feme sole; feoff; fermat, pierre; feudal; feudal tenures; fihtwite; fine; fire; fire-fighters; fishermen, fishmonger; flint; flogging; flying shuttle; folkmote; food riots; footmen; forced loans; forced marriage; forestall; forest charter; forestall; forests; forfeit; forgery; forms of action; fornication; fortifications; foster-lean; france; frank-almoin; franklin, benjamin; frankpledge; fraternity; fraud; freedom of speech; freehold, freeholder; freeman; freemason; freewoman; friar; frith guild; fuller; fustian; fyrd; fyrdwite; gage; galilei, galileo; gambling; games; gaols; gaol distemper; gawaine; gentleman; gentry; geology; georgia; german, christopher st., gift; gilbert, william; guildhall; guilds; gin; glanvill; glass; glorious revolution; gloves; god; godfather; gold; goldsmiths; good parliament; goods; government; grain; grammar schools; grand assize; grand jury; grand tour; grants; grave; gravitation; greek; gresham, thomas; grithbrice; guardian, guardianship; guenevere; hair; hall; halley, edmond; hamsocne; hand-habbende; harboring; harrington, james; harvard college; health; heir; heresy; heriot; hidage; hide; high commission court; hilda; hillforts; holidays, holydays; homage; homicide; hooke, robert; horse; horse racing; hospitals; house-breaking; house-holder; house of commons; house of lords; houses; houses of correction; hue and cry; humanism, humors; hundred rolls; huygens, christian; hundred; hundred courts; hunt; husband; hustings court; hut; illegitimacy; illness; illuminators; impeach; import; imprisonment; incest; income tax; independents; indenture; indictment; industry; infangthef; inflation; inheritance; innkeeper; inns of court; inoculation; inquest; insurance; interest; interrogatory; intestate; iron; itinerant; jail; jesus; jews; joan of arc; joint tenants; joint-stock companies; jointure; jones, inigo; journeyman; judge; jurisdiction; jurors; jury; justice; justices in eyre; justices of assize; justices of the peace; justiciar; kent county; keplar, johannes; kill; kin, kindred; king; king alfred the great; king charles i; king charles ii; king edward i; king edward the confessor; king george iii; king henry i; king henry ii; king henry vii; king henry viii; king james i; king james ii; king john; king richard the lion-hearted; king william and mary; king william i, the conqueror; king's peace; knight; knight's fee; knights' guild; knitting; laborer; ladies; land; landlord; land-owner; larceny; lastage; latin; law merchant; lawsuit; lawyer; laxton; lay; leap year; lease; leather; leet court; legacy; legislation; legitimacy; leibniz, christian; leicester; letters; libel; liberi quadripartitus; library; license; life; life-estate; lighthouse; limb; linen; lion of justice; literacy; literature; littleton, thomas; livery; lloyds; locke, john; london; long parliament; longitude; lord; lords, house of; loriner; lottery; loyalty; machine; magistrates; magna carta; magnate; maiden; mail; majic; malicious prosecution; maintenance; manchester; manor; manor courts; manufacturing; manumission; marco polo; market; marriage; marriage agreement; marriage portion; marshall; marquise; massachusetts; master of arts; masters; matilda; mayflower; mayor; maypole; mead; measures; meat; medicine; melee; member; merchandise; merchant; merchant adventurers; merchant guilds; merchet; merciless parliament; mercy; merton; mesne; methodists; microscope; middlesex; midwives; military service; militia; miller; minister; minor; minstrels; miskenning; moat; model parliament; monarchy; monasteries; money; moneyer; monks; monopoly; moot; more, thomas; morgen-gift; morning gift; mort d'ancestor; mortgage; mortmain; mother; murder; mutilation; napier, john; navy; newcastleon-tyne; new england; new model army; newspapers; newton, issac; new world; nobility; noblemen, nobles; nonconformists; normans; novel disseisin; nuisance; nun; oakham, william; oaths; offender; oil; one hundred year war; open field system; ordeal; ordinance; orphans; outlaw; oxford university; oxygen; papists; parent; parishes; parliament; parliament of saints; partition; party; pascal, blaise; passport; patents; pauper; pawn; peasant's revolt; peers; peine forte et dure; penalty; penitentiary; penn, william; pennsylvania; penny; per stirpes; perjury; personal injury; personal property; petit serjeanty; petition; petition of right; physicians; piers plowman; pigherds; pilgrim; pillory; pipe rolls; piracy; pirate; plague; plaintiff; plato; plays; pleading; pleas; police; pontage; poor; pope; popery; population; port; portreeve; portsoken ward; posse; possess; postal system; post mortem; pottery; praecipe in capite; pressing; presbyterians; prescription; presentment; priest; printing; prison; privy council; privy seal; probable cause; probate; proclamation; promise under seal; promissory note; property; prosecutor; prostitutes; protectorate; protestants; puritans; purveyance; putting out system; quakers; quaranteen, quarter sessions; queen; queen elizabeth i; queen mary; queen's bench; quo warranto; rack; ralegh, walter; rape; ray, john; real action; recognition; reeve; reformation; regrate; release; relief; religion; remainder; renaissance; rent; replevin; residence; restoration; reversion; revolt; reward; rights; riot; riot act; roads; robbery; robin hood; roemer, olaus; roman law; root and branch petition; roundheads; royal court; royal navy; royal society; royalists; rump parliament; russia; sacrament; sacrifice; sailor; sake and soke; sale; salt; saltworks; sanctuary; sandwich; saxon; scaetts; scavage; scholar; school; science; scolds; scot; scrofula; scutage; seal; seamen; searchers; search warrant; sedition, seditious; seisin; selfdefense; self-help; separatists; serf; serjeanty; servant; service; servitude; settlement; sewer; shakespeare, william; shaving; sheep; shelley's case; sheriff; sheriff's turn; shillings; ships; shipwreck; shire; shire courts; shire-gemot; shoemaker; short parliament; shrine; sickness; silver; slade's case; slander; slave; slingshot; smallpox; smith; smithfield; socage; sokemen; soldiers; solicitor; son; spanish armada; speedy pursuit; spinning; spinning jenny; spinning wheel; spinsters; spouse; st. augustine; st. germain; st. lazarus; st. paul's church; statute of laborers; squire; staple; star chamber court; strangers; steam; steel; stengesdint; stevinus; steward; stock-and-land lease; stocking-frame knitters; stocks; stolen goods; stone; stonehenge; straw; streets; subtenants; successor; sue; suit; summary; summon; sunday; supporters of the bill of rights society; surety; surgery; surname; swearing; swords; tale; tallage; tanner; tavern; tax; tea; team; ten commandments; tenancies; tenancy, tenant; tenants in common; tenement; tenure; term; testament; thames, river; theft; thegn; theodore; theology; theow; thermometer; thirty years' war; tile; tiler; tin; title; tolls; tories; torricelli, evangelista; tort; torture; tournament; tower hill; tower of london; town; town-reeve; trades, tradesmen; transportation; treason, high and petit; treasure trove; treasury; trespass; trespass on the case; trial by combat (battle); trover; turnpike; twelve; tyne; umbrella, unitarians; university; usury; use-trust; vagrants, vagrancy; vassal; verderer; verdict; vessels; vikings; vill; villages; villeinage; villeins; vintner; virginia; wall; wallis, john; war of the roses; ward, wardship; wardmoot; wardrobe; warrantor, warranty; waste; water; watermen; watermill; waterwheel; watt, james; wealthy; weapon; weaving, weavers; webs; wed; wedding; weights; weir; well; wer, wergeld; wesley, john; westminster; whigs; whipping; white tower; whitsuntide; widows; wife; wife-beating; wills; winchester; windmills; window tax; wine; witch; witchcraft; wite; witan; witanagemot; witnesses; wives; wolsey, thomas; wyclif, john; woman-covert; women; wool; wounding; writs; writs of assistance; writs of error; year books; yeomanry, yeomen copyright (c) 2004, 2012 by s. a. reilly our legal heritage king aethelbert king george iii, 1776, 600 a.d. 1776 by s. a. reilly, attorney 175 e. delaware place chicago, illinois 60611-7715 s-reilly@att.net copyright (c) 2004, 2012 preface this book was written for people with an interest in english legal history who don't know where to start reading, as i didn't. its purpose is also to look at history through its laws, which do not lend themselves to interpretation, and thus points of view, as does conventional history; one cannot argue with the black letter of the law. attorneys will be interested in reading about the historical context in which the legal doctrines they learned in law school developed. this book includes the complete law codes of king alfred and of king aethelbert, the law code of king canute, paraphrased, excerpts from the law code of henry i, the entire magna carta, and the statutes of england relevant to english life, but excluding such topics as scottish affairs and wars with ireland. it also includes the inception of the common law system, which was praised because it made law which was not handed down by an absolutist king; the origin of the jury system; the meaning of the magna carta provisions in their historical context; and the emergence of attorneys. this book is a primer. one may read it without prior knowledge of history or law, although it will be more meaningful to attorneys than to others. it can serve as an introduction on which to base further reading in english legal history. it defines terms unique to english legal history. however, the meaning of some terms in king aethelbert's code in chapter 1 are unknown or inexact. in the table of contents, the title of each chapter denotes an important legal development in the given time period for that chapter. each chapter is divided into three sections: the times, the law, and judicial procedure. the times section sets a background and context in which to better understand the law of that period. the usual subject matter of history such as battles, wars, royal intrigues, periods of corruption, and international relations are omitted as not helping to understand the process of civilization and development of the law. standard practices are described, but there are often variations with locality. also, change did not come abruptly, but with vacillations, e.g. the change from pagan to christian belief and the change to allowance of loans for interest. the scientific revolution was accepted only slowly. there were often many attempts made for change before it actually occurred, e.g. gaining parliamentary power over the king's privileges, such as taxation. the law section describes the law governing the behavior and conduct of the populace. it includes law of that time which is the same, similar, or a building block to the law of today. in earlier times this is both statutory law and the common law of the courts. the magna carta, which is quoted in chapter 7, is the first statute of england and is listed first in the "statutes of the realm" and the "statutes at large". the law sections of chapters 7 18 mainly quote or paraphrase almost all of these statutes. excluded are statutes which do not help us understand the development of our law, such as statutes governing wales after its conquest and statutes on succession rights to the throne. the judicial procedure section describes the process of applying the law and trying cases, and jurisdictions. it also contains some examples of cases. money is expressed in pounds, shillings, pence, scaetts, or marks, which is a danish denomination. there are twenty shillings in a pound. a mark in silver is two-thirds of a pound. shillings are abbreviated: "s." the pre-norman english shilling was divided into 4 pence or pennies. in henry i's time, the shilling was divided into 5 pence. the norman shilling was introduced by henry ii and was divided into 12 pennies. this penny was literally one pennyweight of silver, so a pound sterling thus weighed 240 pennyweights. pence are abbreviated "d.", for the roman denarius. for example, six shillings and two pence is denoted 6s.2d. a scaett was a coin of silver and copper of lesser denomination; there were 20 scaetts to one shilling. there were no coins of the denomination of shilling during pre-norman times. dedication and acknowledgements a vassar college faculty member once dedicated her book to her students, but for whom it would have been written much earlier. this book "our legal heritage" is dedicated to the faculty of vassar college, without whom it would never have been written. much appreciation goes to professor james curtin of loyola law school for his review and comments on this book's medieval period: chapters 4-10, and especially his comment that "i learned quite a bit about life in those days from your work." thanks go to loyola university law school professor george anastaplo for introducing me to professor curtin. much appreciation goes to professor lacey baldwin smith of northwestern university's history department for his review and comments on this book's tudor and stuart periods: chapters 11-17, especially his comment that he learned a lot. thanks go to northwestern university law school professor steven presser for introducing me to professor smith. finally, many thanks go to fellow mensan william wedgeworth for proof-reading the entire book. table of contents chapters: 1. tort law as the first written law: to 600 2. oaths and perjury: 600-900 3. marriage law: 900-1066 4. martial "law": 1066-1100 5. criminal law and prosecution: 1100-1154 6. common law for all freemen: 1154-1215 7. magna carta: the first statute: 1215-1272 8. land law: 1272-1348 9. legislating the economy: 1348-1399 10. equity from chancery court: 1399-1485 11. use-trust of land: 1485-1509 12. wills and testaments of lands and goods: 1509-1558 13. consideration and contract law: 1558-1601 14. welfare for the poor: 1601-1625 15. independence of the courts: 1625-1642 16. freedom of religion: 1642-1660 17. habeas corpus: 1660-1702 18. service of process instead of arrest: 1702-1776 appendix: sovereigns of england bibliography chapter 1 the times: before 600 a.d. the settlement of england goes back thousands of years. at first, people hunted and gathered their food. they wore animal skins over their bodies for warmth and around their feet for protection when walking. these skins were sewn together with bone needles and threads made from animal sinews. they carried small items by hooking them onto their belts. they used bone and stone tools, e.g. for preparing skins. their uncombed hair was held by thistlethorns, animal spines, or straight bone hair pins. they wore conical hats of bound rush and lived in rush shelters. early clans, headed by kings, lived in huts on top of hills or other high places and fortified by circular or contour earth ditches and banks behind which they could gather for protection. they were probably dug with antler picks and wood spades. the people lived in rectangular huts with four wood posts supporting a roof. the walls were made of saplings, and a mixture of mud and straw. cooking was in a clay oven inside or over an open fire on the outside. water was carried in animal skins or leather pouches from springs lower on the hill up to the settlement. forests abounded with wolves, bears, deer, wild boars, and wild cattle. they could more easily be seen from the hill tops. pathways extended through this camp of huts and for many miles beyond. for wives, men married women of their clan or bought or captured other women, perhaps with the help of a best man. they carried their unwilling wives over the thresholds of their huts, which were sometimes in places kept secret from her family. the first month of marriage was called the honeymoon because the couple was given mead, a drink with fermented honey and herbs, for the first month of their marriage. a wife wore a gold wedding band on the ring finger of her left hand to show that she was married. women usually stayed at home caring for children, preparing meals, and making baskets. they also made wool felt and spun and wove wool into a coarse cloth. flax was grown and woven into a coarse linen cloth. spinning the strands into one continuous thread was done on a stick, which the woman could carry about and spin at anytime when her hands were free. the weaving was done on an upright or warp-weighted loom. people of means draped the cloth around their bodies and fastened it with a metal brooch inlayed with gold, gems, and shell, which were glued on with glue that was obtained from melting animal hooves. people drank from hollowedout animal horns, which they could carry from belts. they could tie things with rawhide strips or rope braids they made. kings drank from animal horns decorated with gold or from cups of amber, shale, or pure gold. men and women wore pendants and necklaces of colorful stones, shells, amber beads, bones, and deer teeth. they skinned and cut animals with hand-axes and knives made of flint dug up from pits and formed by hitting flakes off. the speared fish with barbed bone prongs or wrapped bait around a flint, bone, or shell fish hook. on the coast, they made bone harpoons for deep-sea fish. the flint ax was used to shape wood and bone and was just strong enough to fell a tree, although the process was very slow. the king, who was tall and strong, led his men in hunting groups to kill deer and other wild animals in the forests and to fish in the streams. some men brought their hunting dogs on leashes to follow scent trails to the animal. the men threw stones and spears with flint points at the animals. they used wood clubs to beat them, at the same time using wood shields to protect their bodies. they watched the phases of the moon and learned to predict when it would be full and give the most light for night hunting. this began the concept of a month. circles of stone like stonehenge were built with alignments to paths of the moon. if hunting groups from two clans tried to follow the same deer, there might be a fight between the clans or a blood feud. after the battle, the clan would bring back its dead and wounded. a priest officiated over a funeral for a dead man. his wife would often also go on the funeral pyre with him. the priest also officiated over sacrifices of humans, who were usually offenders found guilty of transgressions. sacrifices were usually made in time of war or pestilence, and usually before the winter made food scarce. the clan ate deer that had been cooked on a spit over a fire, and fruits and vegetables which had been gathered by the women. they drank water from springs. in the spring, food was plentiful. there were eggs of different colors in nests and many hare to eat. the goddess easter was celebrated at this time. later, there was farming and domestication of animals such as horses, pigs, sheep, goats, chicken, and cattle. of these, the pig was the most important meat supply, being killed and salted for winter use. next in importance were the cattle. sheep were kept primarily for their wool. flocks and herds were taken to pastures. the male cattle, with wood yokes, pulled ploughs in the fields of barley and wheat. the female goat and cow provided milk, butter, and cheese. the chickens provided eggs. the hoe, spade, and grinding stone were used. thread was spun with a hand-held spindle which one hand held while the other hand alternately formed the thread from a mass and then wound it around the spindle. a coarse cloth was woven and worn as a tunic which had been cut from the cloth. kings wore tunics decorated with sheet gold. decorated pottery was made from clay and used to hold liquids and for food preparation and consumption. during the period of "lent" [from the word "lencten", which means spring], it was forbidden to eat any meat or fish. this was the season in which many animals were born and grew to maturity. wood carts with four wheels were used to transport produce and manure. horses were used for transportation of people or goods. wood dug-out boats and paddles were used to fish on rivers or on the seacoast. clans had settlements near rivers. each settlement had a meadow, for the mowing of hay, and a simple mill, with round timber huts, covered with branches or thatch or turf supported by a ring of posts. inside was a hearth with smoke going up through a hole in the roof, and a cauldron for cooking food. there was an upright loom in the darkness. the floor was swept clean. at the door were spears or bags of slingstones ready for immediate use. the king lived in the largest hut. gullies outside carried off excess water. each hut had a garden for fruit and vegetables. a goat or cow might be tied out of reach of the garden. there was a fence or hedge surrounding and protecting the garden area and dwelling. buckets and cauldrons which had originated from the mediterranean were used. querns with the top circular stone turned by hand over the bottom stone were used for grinding grain. there were ovens to dry and roast grain. grain was first eaten as a porridge or cereal. there were square wood granaries on stilts and wood racks on which to dry hay. grain was stored in concealed pits in the earth which were lined with drystone or basket work or clay and made airtight by sealing with clay or dung. old pits were converted into waste dumps, burials, or latrines. outside the fence were an acre or two of fields of wheat and barley, and sometimes oats and rye. wheat and rye were sown in the fall, and oats and barley in the spring. sowing was by men or two oxen drawing a simple scratch plough. the crops were all harvested in the summer. in this two-field system, land was held by peasants in units designed to support a single extended family. these fields were usually enclosed with a hedge to keep animals from eating the crop and to define the territory of the settlement from that of its neighbors. flax was grown and made into linen cloth. beyond the fields were pastures for cattle and sheep grazing. there was often an area for beehives. this was subsistence level farming. pottery was given symmetry when formed with use of a wheel and heated in increasingly hot kilns. from kilns used for pottery, it was noticed that lumps of gold or copper ore within would melt and assume the shape of what they had been resting on. these were the first metals, and could be beaten into various shapes, such as ornaments. then the liquid ore was poured into moulds carved out of stones to make axes [small pointed tool for piercing holes in leather, wood, or other soft materials] and daggers, which were reheated and hammered to become strong. copper-tipped drills, chisels, punches and awls were also made. the bodies of deceased were buried far away from any village in wood coffins, except for kings, who were placed in large stone coffins after being wrapped in linen. buried with them were a few personal items, such as copper daggers, flat copper axes, and awls. the deceased was buried in a coffin with a stone on top deep in the earth to keep the spirit of the dead from coming out to haunt the living. it was learned that tin added to the copper made a stronger metal: bronze. stone hammers, and bronze and iron tools, were used to make cooking pots, weapons, breast plates, and horse bits, which were formed from moulds and/or forged by bronze smiths and blacksmiths from iron extracted from iron ore heated in bowlshaped hearths. typically one man operated the bellows to keep the fire hot while another did the hammering. bronze was made into sickles for harvesting, razors for shaving, tweezers, straight hair pins, safety pins for clothes, armlets, neck-rings, and mirrors. weapons included bows and arrows, flint and copper daggers, bronze swords and spears, stone axes, and shields of wood with bronze mountings. the bows and arrows probably evolved from spear throwing rods. kings in body armor fought with chariots drawn by two horses. the horse harnesses had bronze fittings. the chariots had wood wheels, later with iron rims. when bronze came into use, there was a demand for its constituent parts: copper and tin, which were traded by rafts on waterways and the sea. when iron came into use, there were wrought iron axes, saws, adzes [ax with curved blade used to dress wood], files, ploughshares, harrows [set of spikes to break clods of earth on ploughed land and also to cover seed when sewn], scythes, billhooks [thick knife with hooked point used to prune shrubs], and spits for hearths. lead was mined. there was some glassmaking of beads. wrought iron bars were used as currency. hillforts now had wooden palisades on top of their banks to protect the enclosed farmsteads and villages from stock wandering off or being taken by rustlers, and from attacks by wild animals or other people. later a rampart was added from which sentries could patrol. these were supported by timber and/or stone structures. timbers were probably transported by carts or dragged by oxen. at the entrances were several openings only one of which really allowed entry. the others went between banks into dead ends and served as traps in which to kill the enemy from above. gates were of wood, some hung from hinges on posts which could be locked. later guard chambers were added, some with space for hearths and beds. sometimes further concentric circles of banks and ditches, and perhaps a second rampart, were added around these forts. they could reach to 14 acres. the ramparts are sufficiently widely spaced to make sling-shotting out from them highly effective, but to minimize the dangers from sling-shotting from without. the additional banks and ditches could be used to create cattle corridors or to protect against spear-thrown firebrands. however, few forts had springs of water within them, indicating that attacks on them were probably expected to be short. attacks usually began with warriors bristling with weapons and blowing war trumpets shouting insults to the foe, while their kings dashed about in chariots. sometimes champions from each side fought in single combat. they took the heads of those they killed to hang from their belts or place on wood spikes at the gates. prisoners, including women and children, might become slaves. kings sometimes lived in separate palisades where they kept their horses and chariots. circles of big stones like stonehenge were rebuilt so that the sun's position with respect to the stones would indicate the day of longest sunlight and the day of shortest sunlight. between these days there was an optimum time to harvest the crops before fall, when plants dried up and leaves fell from the trees. the winter solstice, when the days began to get longer was cause for celebration. in the next season, there was an optimum time to plant seeds so they could spring up from the ground as new growth. so farming gave rise to the concept of a year. certain changes of the year were celebrated, such as easter, named for the goddess of the dawn, which occurred in the east (after lent); may day celebrating the revival of life; lammas around july, when the wheat crop was ready for harvesting; and on october 31 the celtic eve of samhain, when the spirits of the dead came back to visit homes and demand food or else cast an evil spell on the refusing homes; and at which masked and costumed inhabitants representing the souls of the dead paraded to the outskirts of the settlements to lead the ghosts away from their homes; and at which animals and humans, who might be deemed to be possessed by spirits, were sacrificed or killed perhaps as examples, in huge bonfires [bonefires] as those assembled looked out for spirits and evil beings. there was an agricultural revolution from the two-field system in which one field was fallow to the three-field system, in which there were three large fields for the heavy and fertile land. each field was divided into long and narrow strips. each strip represented a day's work with the plough. one field had wheat, or perhaps rye, another had barley, oats, beans, or peas, and the third was fallow. it had been observed that legumes such as peas and beans restored the soil. these were rotated yearly. there was a newly invented plough that was heavy and made of wood and later had an attached iron blade. the plough had a mould-board which caught the soil stirred by the plough blade and threw it into a ridge alongside the furrow dug by the plough blade. this plough was too heavy for two oxen and was pulled by a team of about eight to ten oxen. each ox was owned by a different man as was the plough, because no one peasant could afford the complete set. each freeman was allotted certain strips in each field to bear crops. his strips were far from each other, which insured some very fertile and some only fair soil, and some land near his village dwelling and some far away. these strips he cultivated, sowed with seed, and harvested for himself and his family. after the harvest, they reverted to common ownership for grazing by pigs, sheep, and geese. as soon as haymaking was over, the meadows became common grazing land for horses, cows, and oxen. not just any inhabitant, but usually only those who owned a piece of land in the parish were entitled to graze their animals on the common land, and each owner had this right of pasture for a definite number of animals. the faster horse replaced the ox as the primary work animal. other farm implements were: coulters, which gave free passage to the plough by cutting weeds and turf, picks, spades and shovels, reaping hooks and scythes, and sledge hammers and anvils. strips of land for agriculture were added from waste land as the community grew. waste lands were moors bristling with brushwood, or gorse, heather and wanton weeds, reed-coated marshes, quaking peat-bogs, or woods grown haphazard on sand or rock. with iron axes, forests could be cleared to provide more arable land. some villages had a smith, a wheelwright, and a cooper. there were villages which had one or two market days in each week. cattle, sheep, pigs, poultry, calves, and hare were sold there. london was a town on the thames river under the protection of the celtic river god lud: lud's town. it's huts were probably built over the water, as was celtic custom. it was a port for foreign trade. near the town was ludhill. each celtic tribe in england made its own coinage. silver and bronze were first used, and then gold. the metal was put into a round form and then placed between two engraved dies, which were hit. flint workers mined with deer antler picks and ox shoulder blade shovels for flint to grind into axes, spearheads, and arrowheads. mine shafts were up to thirty feet deep and necessitated the use of chalk lamps fueled by animal fat with wicks of moss. the flint was hauled up in baskets. common men and women were now buried in tombs within memorial burial mounds of earth with stone entrances and interior chambers. a man's weapons and shield were buried with him and a woman's spindle and weaving baton, and perhaps beads or pottery with her. at times, mounds of earth would simply be covered over piles of corpses and ashes in urns. in these mass graves, some corpses had spear holes or sword cuts, indicating death by violence. the druid priests, the learned class of the celts, taught the celts to believe in reincarnation of the soul after death of one body into another body. they also threw prized possessions into lakes and rivers as sacrifices to water gods. they placed images of gods and goddesses in shrines, which were sometimes large enough to be temples. they thought of their gods as supernatural magicians. with the ability to grow food and the acquisition of land by conquest by invading groups, the population grew. there were different classes of men. the freemen were eorls [noble freemen] or ceorls [ordinary free farmers]. slaves were not free. freemen had long hair and beards. slaves' hair was shorn from their heads so that they were bald. slaves were chained and often traded. prisoners taken in battle, especially native britons taken by invading groups, became slaves. a slave who was captured or purchased was a "theow". an "esne" was a slave who worked for hire. a "weallas" was a welsh slave. criminals became slaves of the person wronged or of the king. sometimes a father pressed by need sold his children or his wife into bondage. debtors, who increased in number during famine, which occurred regularly, became slaves by giving up the freeman's sword and spear, picking up a slave's mattock [pick ax for the soils], and placing their head within a lord's or lady's hands. they were called witetheows. the original meaning of the word lord was "loaf-giver". children with a slave parent were slaves. the slaves lived in huts around the homes of big landholders, which were made of logs and consisted on one large room or hall. an open hearth was in the middle of the earthen floor of the hall, which was strewn with rushes. there was a hole in the roof to let out the smoke. here the landholder and his men would eat meat, bread, salt, hot spiced ale, and mead while listening to minstrels sing about the heroic deeds of their ancestors. richer men drank wine. there were festivals which lasted several days, in which warriors feasted, drank, gambled, boasted, and slept where they fell. physical strength and endurance in adversity were admired traits. slaves often were used as grain grinders, ploughmen, sowers, haywards, woodwards, shepherds, goatherds, swineherds, oxherds, cowherds, dairymaids, and barnmen. slaves had no legal rights. a lord could kill his slave at will. a wrong done to a slave was regarded as done to his owner. if a person killed another man's slave, he had to compensate him with the slave's purchase price. the slave owner had to answer for the offenses of his slaves against others, as for the mischief done by his cattle. since a slave had no property, he could not be fined for crimes, but was whipped, mutilated, or killed. during famine, acorns, beans, peas, and even bark were ground down to supplement flour when grain stocks grew low. people scoured the hedgerows for herbs, roots, nettles, and wild grasses, which were usually left for the pigs. sometimes people were driven to infanticide or group suicide by jumping together off a cliff or into the water. several large kingdoms came to replace the many small ones. the people were worshipping pagan gods when st. augustine came to england in 596 a.d. to christianize them. king aethelbert of kent and his wife, who had been raised christian on the continent, met him when he arrived. the king gave him land where there were ruins of an old city. augustine used stones from the ruins to build a church which was later called canterbury. he also built the first st. paul's church in london. aethelbert and his men who fought with him and ate and lived in his household [gesiths] became christian. a succession of princesses went out from kent to marry other saxon kings and convert them to christianity. augustine knew how to write, but king aethelbert did not. the king announced his laws at meetings of his people and his eorls would decide the punishments. there was a fine of 120s. for disregarding a command of the king. he and augustine decided to write down some of these laws, which now included the king's new law concerning the church. these laws concern personal injury, killing, theft, burglary, marriage, adultery, and inheritance. the blood feud's private revenge for killing had been replaced by payment of compensation to the dead man's kindred. one, or one's blood kindred, paid a man's "wergeld" [worth] to his blood kindred for causing his wrongful death. the wergeld [wer] of a king was an unpayable amount of about 7000s., of an aetheling [a king-worthy man of the extended royal family] was 1500s., of an eorl, 300s., of a ceorl, 100s., of a laet [agricultural worker in kent, which class was between free and slave], 40-80s., and of a slave nothing. at this time a shilling could buy a cow in kent or a sheep elsewhere. if a ceorl killed an eorl, he paid three times as much as an eorl would have paid as murderer. personal injury was compensated by a "bot". the penalty for slander was tearing out of the tongue. if an aetheling was guilty of this offense, his tongue was worth five times that of a coerl, so he had to pay proportionately more to ransom it. the crimes of murder, treachery to one's own lord, arson [burning a house], house breaking, and open theft, were punishable by death and forfeiture of all property. the law "these are the dooms [decrees] which king aethelberht established in the days of augustine 1. [theft of] the property of god and of the church [shall be compensated], twelve fold; a bishop's property, eleven fold; a priest's property, nine fold; a deacon's property, six fold; a cleric's property, three fold; church frith [breach of the peace of the church; right of sanctuary and protection given to those within its precincts], two fold [that of ordinary breach of the public peace]; maethl-frith [breach of the peace of a meeting place], two fold. 2. if the king calls his leod [his people] to him, and any one there do them evil, [let him compensate with] a twofold bot [damages for the injury], and 50 shillings fine to the king. 3. if the king drink at any one's home, and any one there do any lyswe [evil deed], let him make twofold bot. 4. if a freeman steal from the king, let him repay nine fold. 5. if a man slay another in the king's tun [enclosed dwelling premises], let him make bot with 50 shillings. 6. if any one slay a freeman, 50 shillings to the king, as drihtin beah [payment to a lord in compensation for killing his freeman]. 7. if the king's ambiht-smith [smith or carpenter] or laad-rine [man who walks before the king or guide or escort], slay a man, let him pay a half wergeld. 8. [offenses against anyone or any place under] the king's mund byrd [protection or patronage], 50 shillings fine 9. if a freeman steal from a freeman, let him make threefold bot; and let the king have the wite [fine] and all the chattels [necessary to pay the fine]. (chattels was a variant of "cattle" and was usually a beast, though it could mean any personal property.) 10. if a man lie with the one of the king's female servants, let him pay a bot of 50 shillings. 11. if she be a corn-grinding slave, let him pay a bot of 25 shillings. the third [class of servant] 12 shillings. 12. let the king's fedesl [tenant or boarder] be paid for with 20 shillings. 13. if a man slay another in an eorl's tun [premises], let [him] make bot with 12 shillings. 14. if a man lie with an eorl's birele [female cupbearer], let him make bot with 20 shillings. 15. [offenses against a person or place under] a ceorl's mund byrd [protection], 6 shillings. 16. if a man lie with a ceorl's birele [female cupbearer], let him make bot with 6 shillings; with a slave of the second [class], 50 scaetts; with one of the third, 30 scaetts. 17. if any one be the first to invade a man's tun [premises], let him make bot with 6 shillings; let him who follows, with 3 shillings; after, each, a shilling. 18. if a man furnish weapons to another where there is a quarrel, though no injury results, let him make bot with 6 shillings. 19. if a weg-reaf [highway robbery] be done [with weapons furnished by another], let him [the man who provided the weapons] make bot with 6 shillings. 20. if the man be slain, let him [the man who provided the weapons] make bot with 20 shillings. 21. if a [free] man slay another, let him make bot with a half wergeld of 100 shillings. 22. if a man slay another, at the open grave let him pay 20 shillings, and pay the whole wergeld within 40 days. 23. if the slayer departs from the land, let his kindred pay a half leod. 24. if any one bind a freeman, let him make bot with 20 shillings. 25. if any one slay a ceorl's half-aeta [loaf or bread eater; domestic or menial servant], let him make bot with 6 shillings. 26. if [anyone] slay a laet [semi-slave] of the highest class, let him pay 80 shillings; of the second class, let him pay 60 shillings; of the third class, let him pay 40 shillings. 27. if a freeman commit edor-breach [breaking through the fenced enclosure and forcibly entering a ceorl's dwelling], let him make bot with 6 shillings. 28. if any one take property from a dwelling, let him pay a three-fold bot. 29. if a freeman goes with hostile intent through an edor [the fence enclosing a dwelling], let him make bot with 4 shillings. 30. if [in so doing] a man slay another, let him pay with his own money, and with any sound property whatever. 31. if a freeman lie with a freeman's wife, let him pay for it with his wergeld, and obtain another wife with his own money, and bring her to the other [man's dwelling]. 32. if any one thrusts through the riht-ham-scyld [legal means of protecting one's home; the perimeter of a homestead], let him adequately compensate. 33. if there be feax-fang [seizing someone by the hair], let there be 50 sceatts for bot. 34. if there be an exposure of the bone, let bot be made with 3 shillings. 35. if there be a cutting of the bone, let bot be made with 4 shillings. 36. if the outer hion [outer membrane covering the brain] be broken, let bot be made with 10 shillings. 37. if it be both [outer and inner membranes covering the brain], let bot be made with 20 shillings. 38. if a shoulder be lamed, let bot be made with 30 shillings. 39. if an ear be struck off, let bot be made with 12 shillings. 40. if the other ear hear not, let bot be made with 25 shillings. 41. if an ear be pierced, let bot be made with 3 shillings. 42. if an ear be mutilated, let bot be made with 6 shillings. 43. if an eye be [struck] out, let bot be made with 50 shillings. 44. if the mouth or an eye be injured, let bot be made with 12 shillings. 45. if the nose be pierced, let bot be made with 9 shillings. 46. if it be one ala, let bot be made with 3 shillings. 47. if both be pierced, let bot be made with 6 shillings. 48. if the nose be otherwise mutilated, for each [cut, let] bot be made with 6 shillings. 49. if it be pierced, let bot be made with 6 shillings. 50. let him who breaks the jaw bone pay for it with 20 shillings. 51. for each of the four front teeth, 6 shillings; for the tooth which stands next to them 4 shillings; for that which stands next to that, 3 shillings; and then afterwards, for each a shilling. 52. if the speech be injured, 12 shillings. if the collar bone be broken, let bot be made with 6 shillings. 53. let him who stabs [another] through an arm, make bot with 6 shillings. if an arm be broken, let him make bot with 6 shillings. 54. if a thumb be struck off, 20 shillings. if a thumb nail be off, let bot be made with 3 shillings. if the shooting [fore] finger be struck off, let bot be made with 8 shillings. if the middle finger be struck off, let bot be made with 4 shillings. if the gold [ring] finger be struck off, let bot be made with 6 shillings. if the little finger be struck off, let bot be made with 11 shillings. 55. for every nail, a shilling. 56. for the smallest disfigurement of the face, 3 shillings; and for the greater, 6 shillings. 57. if any one strike another with his fist on the nose, 3 shillings. 58. if there be a bruise [on the nose], a shilling; if he receive a right hand bruise [from protecting his face with his arm], let him [the striker] pay a shilling. 59. if the bruise [on the arm] be black in a part not covered by the clothes, let bot be made with 30 scaetts. 60. if it be covered under the clothes, let bot for each be made with 20 scaetts. 61. if the belly be wounded, let bot be made with 12 shillings; if it be pierced through, let bot be made with 20 shillings. 62. if any one needs medical attention, let bot be made with 30 shillings. 63. if any one be cearwund [badly wounded], let bot be made with 3 shillings. 64. if any one destroy [another's] organ of generation [penis], let him pay him with 3 wergelds: if he pierce it through, let him make bot with 6 shillings; if it be pierced within, let him make bot with 6 shillings. 65. if a thigh be broken, let bot be made with 12 shillings; if the man become halt [lame], then friends must arbitrate. 66. if a rib be broken, let bot be made with 3 shillings. 67. if [the skin of] a thigh be pierced through, for each stab 6 shillings; if [the wound be] above an inch [deep], a shilling; for two inches, 2; above three, 3 shillings. 68. if a sinew be wounded, let bot be made with 3 shillings. 69. if a foot be cut off, let 50 shillings be paid. 70. if a great toe be cut off, let 10 shillings be paid. 71. for each of the other toes, let one half that for the corresponding finger be paid. 72. if the nail of a great toe be cut off, 30 scaetts for bot; for each of the others, make bot with 10 scaetts. 73. if a freewoman loc-bore [with long hair] commit any leswe [evil deed], let her make a bot of 30 shillings. 74. let maiden bot [compensation for injury to an unmarried woman] be as that of a freeman. 75. for [breach of] the mund [protection] of a widow of the best class, of an eorl's degree, let the bot be 50 shillings; of the second, 20 shillings; of the third, 12 shillings; of the fourth, 6 shillings. 76. if a man carry off a widow not under his own protection by right, let the mund be twofold. 77. if a man buy a maiden as wife, let the bargain stand, if it be without fraud; but if there be fraud, let him bring her home again, and let his property be restored to him. 78. if she bear a live child, she shall have half the property, if the husband die first. 79. if she wish to go away with her children, she shall have half the property. 80. if the husband wish to keep them [the children], [she shall have the same portion] as one child. 81. if she bear no child, her paternal kindred shall have the fioh [her money and chattels] and the morgen-gyfe [morning gift: a gift made to the bride by her husband on the morning following the consummation of the marriage]. 82. if a man carry off a maiden by force, let him pay 50 shillings to her controller, and afterwards buy the consent of the controller [to the marriage]. 83. if she be betrothed to another man and money has changed hands, let him [who carried her off] make bot [to the intended bridegroom] with 20 shillings. 84. if restitution [of the girl] is made, bot of 35 shillings; and 15 shillings to the king. 85. if a man lie with an esne's [slave's]wife, her husband still living, let him make twofold bot. 86. if one esne [slave] slay another unoffending, let him pay for him at his full worth. 87. if an esne's [slave's] eye and foot be struck out or off, let him be paid for at his full worth. 88. if any one bind another man's esne [slave], let him make bot with 6 shillings. 89. let [compensation for] weg-reaf [highway robbery] of a theow [slave] be 3 shillings. 90. if a theow steal, let him [the owner] make twofold bot [twice the value of the stolen goods]." judicial procedure the king and his freemen would hear and decide cases of wrongful behavior such as breach of the peace. punishment would be given to the offender by the community. the bots, wers, and wites were high and often could not be paid. if a man could not or would not pay, he could be outlawed, to be killed by anyone with impunity or punished by hanging; beheading; burning; drowning; stoning; precipitation from a cliff; loss of ears, nose, upper-lip, hands and feet; castration; flogging; or sale into slavery. there were occasional meetings of "hundreds", which were 100 households, to settle widespread disputes. the chief officer was "hundreder" or "constable". he was responsible for keeping the peace of the hundred. the concept of a wrong to a person or his kindred is still primary and that of offense to the community secondary. very slowly did the concept emerge that that members of the community must be content with legal remedies and must not seek private vengeance and that public offenses cannot be altered by private agreement. the druid priests decided all disputes of the celts. chapter 2 the times: 600-900 the country was inhabited by anglo-saxons. the french called it "angleterre", which means the angle or end of the earth. it was called "angle land", which later became "england". a community was usually an extended family. its members lived a village in which a stone church was the most prominent building. they lived in one-room huts with walls and roofs made of wood, mud, and straw. hangings covered the cracks in the walls to keep the wind out. smoke from a fire in the middle of the room filtered out of cracks in the roof. grain was ground at home by rotating by hand one stone disk on another stone disk. some villages had a mill powered by the flow of water or by horses. all freeholders had the duty of watch [at night] and ward [during the day], of following the hue and cry to chase an offender, and of taking the oath of peace. these three duties were constant until 1195. farmland surrounded the villages and was farmed by the community as a whole under the direction of a lord. there was silver, copper, iron, tin, gold, and various types of stones from remote lead mines and quarries in the nation. silver pennies replaced the smaller scaetts. freemen paid "scot" and bore "lot" according to their means for local purposes. offa, the strongest of the saxon kings, minted high-quality silver pennies. he traded woolen coats for lava grindstones with emperor charlemagne, who used a silver denarius coin. there were 12 denarii to the solidus and 20 soldi to the pound of silver. these denominations were taken by england as 12 pennies to the shilling and 20 shillings to the pound. the pound sign, an "l" with a hash mark derived from the word libra, which meant weighing scales. everyone in the village went to church on sunday and brought gifts such as grain to the priest. later, contributions in the form of money became customary, and then expected. these "tithes" were spent for church repair, the clergy, and poor and needy laborers. the church fixed the amount to be one-tenth, but local custom determined the amount. there was also church-scot: a payment to the clergy in lieu of the first fruits of the land. there were also offerings, originally voluntary but afterwards compulsory, for sacraments. the priest was the chaplain of a landlord and his parish was coextensive with that landlord's holding and could include one to several villages. the priest and other men who helped him, lived in the church building. some churches had lead roofs and iron hinges, latches, and locks on their doors. the land underneath had been given to the church by former kings and persons who wanted the church to say prayers to help their souls go from purgatory to heaven and who also selected the first priest. the priest conducted christianized easter ceremonies in the spring and (christ's mass) ceremonies in winter in place of the pagan yuletide festivities. burning incense took the place of pagan burnt animal offerings, which were accompanied by incense to disguise the odor of burning flesh. holy water replaced haunted wells and streams. christian incantations replaced sorcerer's spells. nuns assisted priests in celebrating mass and administering the sacraments. they alone consecrated new nuns. vestry meetings were community meetings held for church purposes. the people said their prayers in english, and the priest conducted the services in english. a person joined his hands in prayer as if to offer them for binding together in submission. the church baptized babies and officiated or gave blessings at marriage ceremonies. it also said prayers for the dying, gave them funerals, and buried them. there were burial service fees, candle dues, and plough alms. a piece of stone with the dead person's name marked his grave. it was thought that putting the name on the grave would assist identification of that person for being taken to heaven. the church heard the last wish or will of the person dying concerning who he wanted to have his property. the church taught that it was not necessary to bury possessions with the deceased. the church taught boys and girls. every man carried a horn slung on his shoulder as he went about his work so that he could at once send out a warning to his fellow villagers or call them in chasing a thief or other offender. the forests were full of outlaws, so strangers who did not blow a horn to announce themselves were presumed to be fugitive offenders who could be shot on sight with impunity. an eorl could call upon the ceorl farmers for about forty days to fight off an invading group. there were several kingdoms, whose boundaries kept changing due to warfare, which was a sin according to the church. they were each governed by a king and witan of wise men who met at a witanegemot, which was usually held three times a year, mostly on great church festivals and at the end of the harvest. the king and witan chose the witan's members of bishops, eorldormen, and thegns [landholding farmers]. the king and hereditary claims played a major part in the selection of the eorldormen, who were the highest military leaders and often of the royal family. they were also chief magistrates of large jurisdictional areas of land. the witan included officers of the king's household and perhaps other of his retinue. there was little distinction then between his gesith, fighting men, guards, household companions, dependents, and servants. the king was sometimes accompanied by his wife and sons at the witanagemot. a king was selected by the witan according to his worthiness, usually from among the royal family, and could be deposed by it. the witan and king decided on laws, taxes, and transfers of land. they made determinations of war and peace and directed the army and the fleet. the king wore a crown or royal helmet. he extended certain protections by the king's peace. he could erect castles and bridges and could provide a special protection to strangers. a king had not only a wergeld to be paid to his family if he were killed, but a "cynebot" of equal amount that would be paid to his kingdom's people. a king's household had a chamberlain for the royal bedchamber, a marshall to oversee the horses and military equipment, a steward as head of household, and a cupbearer. the king had income from fines for breach of his peace; fines and forfeitures from courts dealing with criminal and civil cases; salvage from ship wrecks; treasure trove [assets hidden or buried in times of war]; treasures of the earth such as gold and silver; mines; saltworks; tolls and other dues of markets, ports, and the routes by land and by river generally; heriot from heirs of his special dependents for possession of land (usually in kind, principally in horses and weapons). he also had rights of purveyance [hospitality and maintenance when traveling]. the king had private lands, which he could dispose of by his will. he also had crown lands, which belonged to his office and could not be alienated without consent of the witan. crown lands often included palaces and their appendant farms, and burhs. it was a queen's duty to run the royal estate. also, a queen could possess, manage, and dispose of lands in her name. violent queens waged wars. kingdoms were often allied by marriage between their royal families. there were also royal marriages to royalty on the continent. the houses of the wealthy had ornamented silk hangings on the walls. some had fine white ox horn shaved so thin they were transparent for windows. brightly colored drapery, often purple, and fly nets surrounded their beds, which were covered with the fur of animals. they slept in bed clothes on pillows stuffed with straw. tables plated with silver and gems held silver candlesticks, gold and silver goblets and cups, and lamps of gold, silver, or glass. they used silver mirrors and silver writing pens. there were covered seats, benches, and footstools with the head and feet of animals at their extremities. they ate from a table covered with a cloth. servants brought in food on spits, from which they ate. food was boiled, broiled, or baked. the wealthy ate wheat bread and others ate barley bread. ale made from barley was passed around in a cup. mead made from honey was also drunk. men wore long-sleeved wool and linen garments reaching almost to the knee, around which they wore a belt tied in a knot. men often wore a gold ring on the fourth finger of the right hand. leather shoes were fastened with leather thongs around the ankle. their hair was parted in the middle and combed down each side in waving ringlets. the beard was parted in the middle of the chin, so that it ended in two points. the clergy did not wear beards. great men wore gold-embroidered clothes, gilt buckles and brooches, and drank from drinking horns mounted in silver gilt or in gold. wellto-do women wore brightly colored robes with waist bands, headbands, necklaces, gem bracelets, and rings. their long hair was in ringlets and they put rouge on their cheeks. they had beads, pins, needles, tweezers of bronze, and workboxes of bronze, some highly ornamented. they were often doing needlework. silk was affordable only by the wealthy. most families kept a pig and pork was the primary meat. there were also sheep, goats, cows, deer, hare, and fowl. fowl was obtained by fowlers who trapped them. the inland waters yielded eels, salmon, and trout. in the fall, meat was salted to preserve it for winter meals. there were orchards growing figs, nuts, grapes, almonds, pears, and apples. also produced were beans, lentils, onions, eggs, cheese, and butter. pepper and cinnamon were imported. fishing from the sea yielded herrings, sturgeon, porpoise, oysters, crabs, and other fish. sometimes a whale was driven into an inlet by a group of boats. whale skins were used to make ropes. the roads were not much more than trails. they were often so narrow that two pack horses could hardly pass each other. the pack horses each carried two bales or two baskets slung over their backs, which balanced each other. the soft soil was compacted into a deep ditch which rains, floods, and tides, if near the sea, soon turned into a river. traveling a far distance was unsafe as there were robbers on the roads. traveling strangers were distrusted. it was usual to wash one's feet in a hot tub after traveling and to dry them with a rough wool cloth. there were superstitions about the content of dreams, the events of the moon, and the flights and voices of birds were often seen as signs or omens of future events. herbal mixtures were drunk for sickness and maladies. from the witch hazel plant was made a mild alcoholic astringent, which was probably used to clean cuts and sooth abrasions. in the peaceful latter part of the 600s, theodore, who had been a monk in rome, was appointed archbishop and visited all the island speaking about the right rule of life and ordaining bishops to oversee the priests. each kingdom was split up into dioceses each with one bishop. thereafter, bishops were selected by the king and his witan, usually after consulting the clergy and even the people of the diocese. the bishops came to be the most permanent element of society. they had their sees in villages or rural monasteries. the bishops came to have the same wergeld as an eorldorman: 1200s., which was the price of about 500 oxen. a priest had the wergeld as a landholding farmer [thegn], or 300s. the bishops spoke latin, but the priests of the local parishes spoke english. theodore was the first archbishop whom all the english church obeyed. he taught sacred and secular literature, the books of holy writ, ecclesiastical poetry, astronomy, arithmetic, and sacred music. theodore discouraged slavery by denying christian burial to the kidnapper and forbidding the sale of children over the age of seven. a slave became entitled to two loaves a day and to his holydays. a slave was allowed to buy his or his children's freedom. in 673, theodore started annual national ecclesiastical assemblies, for instance for the witnessing of important actions. the bishops, some abbots, the king, and the eorldormen were usually present. from them the people learned the benefit of common national action. there were two archbishops: one of canterbury in the south and one of york in the north. they governed the bishops and could meet with them to issue canons that would be equally valid all over the land. a bishop's house contained some clerks, priests, monks, and nun and was a retreat for the weary missionary and a school for the young. the bishop had a deacon who acted as a secretary and companion in travel, and sometimes as an interpreter. ink was made from the outer husks of walnuts steeped in vinegar. the learned ecclesiastical life flourished in monastic communities, in which both monks and nuns lived. hilda, a noble's daughter, became the first nun in northumbria and abbess of one of its monasteries. there she taught justice, piety, chastity, peace, and charity. several monks taught there later became bishops. kings and princes often asked her advice. many abbesses came to run monastic communities; they were from royal families. women, especially from royal families, fled to monasteries to obtain shelter from unwanted marriage or to avoid their husbands. kings and eorldormen retired to them. danish vikings made several invasions in the 800s, so the witan imposed a danegeld tax on land that was assessed on everyone every ten to twenty years for maintaining forces sufficient to clear the british seas of danish pirates or to buy off the ravages of the danish it was 1s. and later 2s. upon every hide of land, where a hide was probably the amount of land which could support a family or household for a year or as much land as could be tilled annually by a single plough. it was stored in a strong box under the king's bed. king alfred the great, who had lived for awhile in rome, unified the country to defeat the invaders. he established fortifications called "burhs", usually on hill tops or other strategic locations on the borders to control the main road and river routes into his realm. the burhs were seminal towns. they were typically walled enclosures with towers and an outer ditch and mound, instead of the hedge or fence enclosure of a tun. inside were several wooden thatched huts and a couple of churches, which were lit by earthen oil lamps. the populace met at burhgemotes. the land area protected by each burh became known as a "shire", which means a share of a larger whole. the shire or local landowners were responsible for repairing the burh fortifications. there were about thirty shires. alfred gathered together fighting men who were at his disposal, which included eorldormen with their hearthbands (retinues of men each of whom had chosen to swear to fight to the death for their eorldorman, and some of whom were of high rank), the king's thegns, shire thegns (local landholding farmers, who were required to bring fighting equipment such as swords, helmets, chain mail, and horses), and ordinary freemen, i.e. ceorls (who carried food, dug fortifications, and sometimes fought). since the king was compelled to call out the whole population to arms, the distinction between the king's thegns from other landholders disappeared. some great lords organized men under them, whom they provisioned. these vassals took a personal oath to their lord "on condition that he keep me as i am willing to deserve, and fulfill all that was agreed on when i became his man, and chose his will as mine." alfred had a small navy of longships with 60 oars to fight the viking longships. alfred divided his army into two parts so that one half of the men were fighting while the other half was at home sowing and harvesting for those fighting. thus, any small-scale independent farming was supplanted by the open-field system, cultivation of common land, more large private estates headed by a lord, and a more stratified society in which the king and important families more powerful and the peasants more curtailed. the witan became mere witnesses. many free coerls of the older days became bonded. the village community tended to become a large private estate headed by a lord. but the lord does not have the power to encroach upon the rights of common that exist within the community. in 886, a treaty between alfred and the vikings divided the country along the war front and made the wergeld of every free farmer, whether english or viking, 200s. men of higher rank were given a wergeld of 4 1/2 marks of pure gold. a mark was probably a viking denomination and a mark of gold was equal to nine marks of silver in later times and probably in this time. the word "earl" replaced the word "eorldormen" and the word "thegn" replaced the word "aetheling" after the danish settlement. the ironed pleats of viking clothing indicated a high status of the wearer. the vikings brought combs and the practice of regular hair-combing to england. king alfred gave land with jurisdictional powers within its boundaries such as the following: "this is the bequest which king alfred make unequivocally to shaftesbury, to the praise of god and st. mary and all the saints of god, for the benefit of my soul, namely a hundred hides as they stand with their produce and their men, and my daughter aethelgifu to the convent along with the inheritance, since she took the veil on account of bad health; and the jurisdiction to the convent, which i myself possessed, namely obstruction and attacks on a man's house and breach of protection. and the estates which i have granted to the foundation are 40 hides at donhead and compton, 20 hides at handley and gussage 10 hides at tarrant, 15 hides at iwerve and 15 hides at fontmell. the witnesses of this are edward my son and archbishop aethelred and bishop ealhferth and bishop aethelhead and earl wulfhere and earl eadwulf and earl cuthred and abbot tunberht and milred my thegn and aethelwulf and osric and brihtulf and cyma. if anyone alters this, he shall have the curse of god and st. mary and all the saints of god forever to all eternity. amen." sons usually succeeded their fathers on the same land as shown by this lifetime lease: "bishop denewulf and the community at winchester lease to alfred for his lifetime 40 hides of land at alresford, in accordance with the lease which bishop tunbriht had granted to his parents and which had run out, on condition that he renders every year at the autumnal equinox three pounds as rent, and church dues, and the work connected with church dues; and when the need arises, his men shall be ready both for harvesting and hunting; and after his death the property shall pass undisputed to st. peter's. these are the signatures of the councilors and of the members of the community who gave their consent, namely ..." alfred invented a graduated candle with spaces indicating one hour of burning, which could be used as a clock. he used a ventilated cow's horn to put around the top of the candle to prevent its blowing out, and then devised a wooden lantern with a horn window. he described the world as like a yolk in the middle of an egg whose shell moves around it. this agreed with the position of ptolemy claudius of alexandria, who showed the curvature of the earth from north to south by observing that the polar star was higher in the north and lower in the south. that it was curved from east to west followed from the observation that two clocks placed one west and one east would record a different time for the same eclipse of the moon. alfred wrote poems on the worthiness of wisdom and knowledge in preference to material pleasures, pride, and fame, in dealing with life's sorrow and strife. his observations on human nature and his proverbs include: 1. as one sows, so will he mow. 2. every man's doom [judgment] returns to his door. 3. he who will not learn while young, will repent of it when old. 4. weal [prosperity] without wisdom is worthless. 5. though a man had 70 acres sown with red gold, and the gold grew like grass, yet he is not a whit the worthier unless he gain friends for himself. 6. gold is but a stone unless a wise man has it. 7. it's hard to row against the sea flood; so it is against misfortune. 8. he who toils in his youth to win wealth, so that he may enjoy ease in his old age, has well bestowed his toil. 9. many a man loses his soul through silver. 10. wealth may pass away, but wisdom will remain, and no man may perish who has it for his comrade. 11. don't choose a wife for her beauty nor for wealth, but study her disposition. 12. many an apple is bright without and bitter within. 13. don't believe the man of many words. 14. with a few words a wise man can compass much. 15. make friends at market, and at church, with poor and with rich. 16. though one man wielded all the world, and all the joy that dwells therein, he could not therewith keep his life. 17. don't chide with a fool. 18. a fool's bolt is soon shot. 19. if you have a child, teach it men's manners while it is little. if you let him have his own will, he will cause you much sorrow when he comes of age. 20. he who spares the rod and lets a young child rule, shall rue it when the child grows old. 21. either drinking or not drinking is, with wisdom, good. 22. relatives often quarrel together. 23. the barkless dog bites ill. 24. be wise of word and wary of speech, then all shall love you. 25. we may outride, but not outwit, the old man. 26. be not so mad as to tell your friend all your thoughts. 27. if you and your friend fall out, then your enemy will know what your friend knew before. 28. don't choose a deceitful man as a friend, for he will do you harm. 29. the false one will betray you when you least expect it. 30. don't choose a scornful false friend, for he will steal your goods and deny the theft. 31. take to yourself a steadfast man who is wise in word and deed; he will prove a true friend in need. to restore education and religion, alfred disseminated the anglosaxon chronicles; the venerable bede's ecclesiastical history of the english nation; the "consolidation of philosophy" by roman philosopher boethius, which related the use of adversity to develop the soul, and described the goodness of god and how the highest happiness comes from spiritual values and the soul, which are eternal, rather than from material or earthly pursuits, which are temporal; and pope gregory's pastoral care, which he had translated into english and was the fundamental book on the duty of a bishop, which included a duty to teach laymen; and orosius' history of the world, which he had translated into english. alfred's advice to pastors was to live as they had been taught from books and to teach this manner of life to others. to be avoided was pride, the mind's deception of seeking glory in the name of doing good works, and the corruption of high office. bede was england's first scholar, first theologian, and first historian. he wrote poetry, theological books, homilies, and textbooks on grammar, rhetoric [public speaking and debating], arithmetic, and astronomy. he adhered to the doctrine that death entered the world by the sin of adam, the first man. he began the practice of dating years from the birth of christ and believed that the earth was round. over the earth was a fiery spherical firmament. above this were the waters of the heavens. above this were the upper heavens, which contained the angels and was tempered with ice. he declared that comets portend downfalls of kingdoms, pestilence, war, winds, or heat. this reflected the church's view that a comet was a ball of fire flung from the right hand of an angry god as a warning to mankind, usually for disbelief. storms were begun by the devil. a famous poem, the oral legend of beowulf, a hero who led his men into adventures and performed great feats and fought monsters and dragons, was put into writing with a christian theme. in it, loyalty to one's lord is a paramount virtue. also available in writing was the story of king arthur's twelve victorious battles against the pagan saxons, authored by nennius. there were professional story tellers attached to great men. others wandered from court to court, receiving gifts for their story telling. men usually told oral legends of their own feats and those of their ancestors after supper. alfred had monasteries rebuilt with learned and moral men heading them. he built a nunnery which was headed by his daughter as prioress. he built a strong wall with four gates around london, which he had taken into his control. he appointed his son-in-law, who was one of his eorldormen, to be alderman [older man] to govern london and to be the shire's earl. a later king built a palace in london, although winchester was still the royal capital town. when the king traveled, he and his retinue were fed by the local people at their expense. after alfred's death, his daughter aethelflared ruled the country for seven years. she had more fortified burhs built and led soldiers to victories. burhs grew into towns and some towns into boroughs by obtaining a charter from the king. their citizens were landholding freemen called."burgesses". a borough typically was a place of refuge with earth works, and perhaps a garrrison; it had a market place in which men could buy cattle and other goods and have the sale attested by official witnesses and toll was taken from them; and it had a meeting place at which a court was held. under the royalty were the nobles. an earl headed each shire as representative of the king. the term "earl" came to denote an office instead of a nobleman. he led the array of his shire to do battle if the shire was attacked. he executed all royal commands. an earl received grants of land and could claim hospitality and maintenance for himself, his officers, and his servants. he collected a third of the revenues derived from tolls and duties levied in the boroughs of his shire. the office tended to be hereditary. royal representatives called "reeves" started to assist them. the reeve took security from every person for the maintenance of the public peace. he also tracked cattle thieves, brought suspects to court, gave judgments according to the doom books, and delivered offenders to punishment. under the earls were the thegns. by service to the king, it was possible for a coerl to rise to become a thegn and to be given land by the king. other thegns performed functions of magistrates. a thegn was later identified as a person with five hides of land, a kitchen, a church, a bell house, a judicial place at the burhgemote [a right of magistracy], and an appointment in the king's hall. he was bound to service in war by virtue of his landholding instead of by his relationship to the king. nobility was now a territorial attribute, rather than one of birth. the wergeld of a thegn was 1200s. when that of a ceorl or ordinary freeman was 200s. the wergeld of an earl or bishop was four times that of a thegn: 5800s. the wergeld of a king or archbishop was six times that of a thegn: 7200s. the higher a man's wergeld, the higher was his legal status in the scale of punishment, giving credible evidence, and participation in legal proceedings. the sokemen were freemen who had inherited their own land, chose their own lord, and attended and were subject to their lord's court. that is, their lord has sake [sac] and soke [soc] jurisdiction over them the right to hold a court and to receive the profits of jurisdiction. a ceorl typically had a single hide of land. a smallholder rented land of about 30 acres from a landlord, which he paid by doing work on the lord's demesne [land held by the one lowest in the scale of holding who has a general right of doing with it what he pleases] land, paying money rent, or paying a food rent such as in eggs or chickens. smallholders made up about two fifths of the population. a cottager had one to five acres of land and depended on others for his living. among these were shepherds, ploughmen, swineherds, and blacksmiths. they also participated in the agricultural work, especially at harvest time. it was possible for a thegn to become an earl, probably by the possession of forty hides. he might even acquire enough land to qualify him for the witan. women could be present at the witanagemot and shiregemote [meeting of the people of the shire]. they could sue and be sued in the courts. they could independently inherit, possess, and dispose of property. a wife's inheritance was her own and under no control of her husband. marriage required the consent of the lady and her friends. the man also had to arrange for the foster lean, that is, remuneration for rearing and support of expected children. he also declared the amount of money or land he would give the lady for her consent, that is, the morgengift, and what he would bequeath her in case of his death. it was given to her on the morning after the wedding night. the family of the bride was paid a "mund" for transferring the rightful protection they possessed over her to the family of the husband. if the husband died and his kindred did not accept the terms sanctioned by law, her kindred could repurchase the rightful protection. if she remarried within a year of his death, she had to forfeit the morgengift and his nearest kin received the lands and possessions she had. the word for man was "waepnedmenn" or weaponed person. a woman was "wifmenn" or wife person, with "wif" being derived from the word for weaving. great men and monasteries had millers, smiths, carpenters, architects, agriculturists, fishermen, weavers, embroiders, dyers, and illuminators. for entertainment, minstrels sang ballads about heroes or bible stories, harpers played, jesters joked, and tumblers threw and caught balls and knives. there was gambling, dice games, and chasing deer with hounds. fraternal guilds were established for mutual advantage and protection. a guild imposed fines for any injury of one member by another member. it assisted in paying any murder fine imposed on a member. it avenged the murder of a member and abided by the consequences. it buried its members and purchased masses for his soul. mercantile guilds in seaports carried out commercial speculations not possible by the capital of only one person. there were some ale houses, probably part of certain dwellings. it was usual for a dying man to confess his sins to a priest. for the sake of his soul, the priest often suggested the man give some of his chattel to the church, the poor, or other pious uses. by the 700s, the words of a dying man giving chattel for the sake of his soul were expected to be carried out. later is the "post obit gift" by which a man gives land to the church, with the king's consent, but enjoys the land during his lifetime by stating in writing "i give certain land after my death" in a special "book". the church takes possession of the land after his death. he may make a conditional such gift, leaving the land to his wife for her life with a rent paid to the church and the church taking possession of the land on her death. these two procedures coalesce into one written will used in the 800s, 900s, and 1000s. this will also includes distributions to family and kinsmen and perhaps to creditors. if the will is made by the very great people: kings, queens, king's sons, bishops, earldormen, and king's thegns, it requires the king's consent, which may be bought by a large heriot. and a bishop usually sets his cross to the will, denouncing any who infringe it to the torments of hell. the dead man's parish church is paid a mortuary when he is buried. the law the special authority of the king and his peace gradually superseded the customary jurisdiction of the local courts as to preservation of the peace and punishment of offenses. all criminal offenses became breaches of the king's peace and were deemed acts of personal disobedience and made an offender the king's enemy. this notion developed from the special sanctity of the king's house and his special protection of his attendants and servants. an offender made fines to the king for breach of his peace and fines and forfeitures to him from court decisions in criminal and civil cases. offenses especially dealt with in various parts of the anglo-saxon laws were treason, homicide, wounding, assault, and theft. treason to one's lord, especially to the king, was punishable by death. compassing or imagining the king's death was treason. king alfred collected regulations from various church synods and commanded that many of them which english forefathers had observed to be written out those which appealed to him; and many of those that did not appeal to him he rejected, with the consent of his witan or commanded them to be observed in a different way. "these are the regulations which the almighty god himself spoke to moses and ordered him to observe and subsequently the only-born son of the lord, our god, that is the savior christ confirmed ...": 1. do not love other strange gods before me. 2. do not speak my name idly, for you will not be guiltless with me if you idly speak my name. 3. remember to hallow the rest-day. work for yourselves six days, and on the seventh day rest yourselves. for in six days, god the father made the heavens and the earth, the seas and all creatures that are in them, and rested himself on the seventh day, and therefore god has sanctified it. 4. honour your father and your mother that god gave you so that you may be the longer living on earth. 5. do not kill. 6. do not lie in sexual union secretly. 7. do not steal. 8. do not speak false evidence. 9. do not wish for your neighbour's property unrightfully. 10. do not make yourselves golden or silver gods. 11. if anyone buy a christian slave, let him serve for six years and on the seventh let him be free without payment. with such clothes as he entered into service, let him leave with. if he has a wife of his own providing, let her leave with him. if the master provided him with a wife, both she and her children shall belong to the master. if the slave then says `i do not want to leave my master or my wife or my child or my property', let his master bring him to the door of the temple and perforate his ear with an awl as a sign that he shall ever afterwards be a slave. 12. though someone sell his daughter into slavery do not let her be a slave entirely as are other maid servants. he has not the right to sell her abroad among foreign people. but if he who bought her does not care for her, let her be free among a foreign people. but if he i.e. the purchaser allows his son to cohabit with her, give her the morning gift and ensure that she has clothing and that she has the value of her maidenhood, that is the dowry let him give her that. if he does none of those things for her, then she shall be free. 13. the person who slays another deliberately shall suffer death. he that has killed another in self defense or involuntarily or unintentionally, as god delivered him i.e. the victim into his hands and providing he i.e. the killer did not set a trap for him in that case let him be worthy of his life, and of settling by customary compensation, if he should seek asylum. if however anyone deliberately and intentionally kills his neighbour treacherously, pluck him from my altar so that he should suffer death. 14. he that attacks his father or his mother shall suffer death. 15. he that abducts a freeman and sell him, and it is proved so that he cannot absolve himself, let him suffer death. he that curses his father or his mother, let him suffer death. 16. if someone attacks his neighbour with a stone or with his fist, but he i.e. the victim can still get about with the aid of a staff, let him i.e. the aggressor provide him with a doctor and do his i.e. the victim's work for him for as long as he i.e. the victim cannot himself. 17. he that attacks his own non-free servant or his maidservant, and they are not dead as a result of the attack but live two or three days, he i.e. the aggressor shall not be so entirely guilty, because it was his own property he damaged. but if the slave be dead the same day, then the guilt rests on him i.e. the aggressor. 18. if anyone in the course of a dispute injure a pregnant woman, let him make compensation for the hurt as judges decide in his case. if she be dead, let him give life for life. 19. if anyone put out another's eye, let him give his own for it. tooth for tooth. hand for hand. foot for foot. burn for burn. wound for wound. bruise for bruise. 20. if anyone strike the eye of his slave or maidservant out and so makes them one-eyed, let him free them for that. if he strike out a tooth, let him do the same. 21. if an ox gore a man or woman so that they are dead, it it be stoned to death and do not let the flesh be eaten. the owner shall not be liable if the ox was butting two days before that or even three and the owner did not know of it. but if he knew of it and would not shut it i.e. the animal in, and then it killed a man or woman, let it be stoned to death and let the master be killed or made to pay as the witan consider proper. if it gore a son or daughter, let the same penalty apply. but if it gore a slave or serving-woman, let the owner give 30 shillings of silver and let the ox be stoned to death. 22. if anyone dig a well or open up a closed one and does not close it up again, let him pay for whatever cattle fall in; but let him have the dead animal for his own use. 23. if an ox wound another man's ox so it is dead, let them sell the live ox and share the proceeds, and also the flesh of the dead ox. but if the owner knew the ox was butting and would not restrain it, let him hand over the other i.e. live ox for it but let him have all the flesh of the dead ox for his own use. 24. if anyone steal another man's ox and kill or sell it, let him give two oxen in restitution. and four sheep for one stolen. if he i.e. the thief does not have anything to give in restitution, let him be sold himself to raise the money. 25. if a thief break into a man's house by night and is killed there, he i.e. the house-owner shall not be guilty of manslaughter. but if he i.e. the house-owner does this after sunrise, he is guilty of manslaughter, and shall himself perish, unless he acted in self-defence. if there is found in the possession of the living thief things he had already stolen, let him make restitution for it two-fold. 26. if anyone damage another man's vineyard or his crops or any part of his estate, let him pay compensation according to how it is assessed. 27. if a fire is lit in order to burn rubbish, let him who started the fire pay compensation for any consequent damage. 28. if anyone entrusts any possession to his friend and the friend appropriates it for himself, let him i.e. the friend clear himself and prove that he committed no fraud in the matter. if it was livestock, and he says that raiders took it, or it perished of itself, and if he has proof, he need not pay up. but if he has no proof, and the original owner does not believe him, let him make an oath to clear himself. 29. if anyone seduce an uncommitted woman and sleeps with her, let him pay for her and take her then as his wife. but if the woman's father is unwilling to let her go, then let the seducer hand over money in proportion to her dowry. 30. the women who are accustomed to harbour enchanters and wizards and witches do not allow them to live. 31. and he that has intercourse with animals shall suffer death. 32. and he that sacrifices to idols, rather than to god alone, let him suffer death. 33. do not harass visitors from abroad and foreigners, for you were formerly strangers on the land of the egyptians. 34. do not harm widows and step-children, neither do them any injury. if you do otherwise, they will call upon me and i will listen to them, and then i will slay you with my sword and i will ensure that your wives shall be widows and your children orphans. 35. if you hand over money as a loan to your comrade who wishes to live with you, do not coerce him like an underling and do not oppress him with the interest. 36. if someone has only a single garment to cover and clothe himself with and he hands it over as a pledge, let it be returned before the sun sets. if you do not do so then he will call unto me, and i will listen to him because i am very clement. 37. do not reproach you lord, nor curse the lord of the people. 38. your tithe i.e. tenth-part of profit and your first-fruits of moving animals and growing crops, offer to god. 39. all the flesh that wild animals leave, do not eat it but give it to the dogs. 40. do not bother to give credence to the word of a false man, and do not approve his opinions; do not repeat any of his assertions. 41. do not join in the false judgment and evil aspirations of the many nor join in their rumours and outcry, against your own conscience, at the incitement of some ignorant person. do not support them. 42. if the stray cattle of another man come into your possession, though it be the property of your enemy, let him know about it. 43. judge equably, do not lay down one rule for the rich, another for the poor; do not decide one way for a friend, another for a foe. 44. always shun falsehood. 45. never slay a righteous and innocent man. 46. never accept bribes, for they very often blind the minds of wise men and pervert their words. 47. do not behave unkindly to foreigners and visitors from abroad; do not harass them with unjust acts. 48. never swear an oath by heathen gods, nor in any circumstances call upon them. alfred also issued a set of laws to cover the whole country that he derived from laws of various regional kings in england as follows: "1. first we insist that there is particular need that each person shall keep his oath and his pledge carefully. if anyone be compelled to give either of these wrongly, either to support treachery to his lord or to provide any unlawful aid, then it is better to forswear than to fulfil. but if he pledge himself to that which it is right for him to fulfil and fails, let him submissively hand over his weapons and his possessions to his friends to keep, and stay forty days in prison in a property of the king. let him undergo there whatever the bishop prescribes as penance, and let his kinsmen feed him if he himself has no food. if he has no kin or has no food, let the king's officer feed him. if one has to compel him to this i.e. to surrender, and otherwise he is unwilling to co-operate if they have to bind him he shall forfeit his weapons and his possessions. if he is slain while resisting, let him lie uncompensated. if he makes an escape before the time is up, and he is recaptured, let him stay forty days in prison as he would have previously. but if he gets away, let him be banished and excommunicated from all the churches of christ. further, if someone has provided surety for him, let him compensate for the breach of surety as custom require him, and atone for the breach of pledge as his confessor imposes in his case. 2. if anyone seek out as sanctuary for any offence any of the monastic houses to which the king's revenue applies, or any other exempt community that is worthy of respect he shall have a period of three days of immunity, unless he wants to negotiate before that. if someone harms him during that period, either by assault or by fettering him,, or by a penetrating wound, let the aggressor pay compensation for each of such attacks according to proper practice, both with wergeld and with a fine, and 120 shillings to that community, as compensation for breach of sanctuary, and let his own possessions be forfeit. 3. if anyone violate the king's surety, let him pay compensation for the original charge as customary law direct, and for the violation of surety with five pounds of the purer pennies. in the case of breach of an archbishop's surety or protection, let him compensate with three pounds. for violation of the surety or protection of another bishop or official [earldorman], let him make compensation with two pounds. 4. if anyone plot against the king's life, either directly or by harbouring outlaws or indirectly through the agency of his men, let him be liable with his life and with all that he owns. if he desire to prove himself loyal, let him do that by paying a king's wergeld. similar protection we ordain for all ranks, both common and noble [earl]: whoever plots against his master's life shall be liable with his life and with all that he owns or let him show his loyalty by paying his master's wergeld. 5. also we appoint to every church that a bishop has consecrated this right of sanctuary: that if a party to a feud run or ride to the church, then no one may drag him forth for seven days. if however anyone does that, then let him be liable at the rate of breach of a king's protection and at the rate of breach of church sanctuary more if he take more from the site. [and the sanctuary seeker shall be safe] if he can survive hunger, and unless he himself try to fight his way out. if the community have greater need of their church, let them keep him in another building, and let that not have the more doors than the church itself; let the church official ensure that no one give the sanctuary-seeker food during that period. if he himself is willing to hand over his weapons to his foes, let them keep him for 30 days and inform his kin about him. also it shall count as sanctuary if some man seek out a church about any offence that had not previously been revealed, and there confess himself in god's name let the penalty be half remitted. he that steal on sunday or at yule or at easter or on holy thursday or on the rogation days for each of those we intend that there should be a double-penalty, as during lent. 6. if anyone steal something in a church, let him pay a plain compensation and the fine such as they consider appropriate to the plain compensation, and let them strike the hand off with which he did it i.e. the deed. if he wishes to redeem his hand, and they consent to that, let him pay in proportion to his wergeld. 7. if anyone fights in the king's hall or draw his weapon, and he is seized, let the penalty be at the king's judgement, either death or life, as he is willing to grant him. if he escapes and is captured later, let him pay in proportion to his wergeld, and atone for the offence with wergeld and fine, as he may deserve by his act. 8. if anyone abducts a nun of a nunnery without the king's or the bishop's leave, let him pay 120 shillings, half to the king, half to the bishop and the church patron who had charge of the nun. if she lives longer than he that abducted her, let her not have any of his estate. if she bears a child, let that not have any more of the estate than the mother. if anyone slay her child let him pay the king the maternal kindred's share; to the paternal kin let him pay their share. 9. if anyone slay a woman with child, while the child still be within her, let him pay full compensation for the woman and half compensation for the child according to the wergeld of the father's kin. let the fine payable to the king always be 60 shillings, until the corresponding simple compensation rises to 30 shillings. when the simple compensation rises to that level, then let the fine be 120 shillings. formerly there was a defined fine for a gold-thief, and a horse-thief and a bee-thief and many special fines greater than others. now all are alike except for an illegal slayer and that is 120 shillings. 10. if a man has intercourse with the wife of a 1200 shilling wergeld man, let him pay in compensation 120 shillings to the husband. for a 600 shilling wergeld man i.e. husband, let him pay in compensation 100 shillings. for a common man [ceorl] i.e. husband, let him make compensation of 40 shillings. 11. if someone grabs the breast of a common woman, let him compensate with five shillings. if he throws her to the ground but does not have sexual intercourse with her, let him compensate with 60 shillings. if he has sexual intercourse with her let him compensate with sixty shillings. if some other man had previously lain with her, then let the compensation be half that. if someone accuse her of complicity, let her clear herself with an oath guaranteed by sixty hides of land, or forfeit half the compensation. if this happens to a nobly born woman, let the compensation increase in proportion to the wergeld. 12. if someone burns or cuts down another person's trees without permission, let him pay over 5 shillings for each substantial tree, and thereafter, no matter how many there are, five pence for each tree, and thirty shillings as a fine. 13. in the course of their joint work felling trees, if someone is killed by accident, let the tree involved be given to his kin, and let them remove it off the property within 30 days; otherwise let him possess it that owns the forest. 14. if someone is born dumb or deaf, so that he can neither deny or confess his sins, let the father make compensation for his misdeeds. 15. if someone fights or draws his weapon in the presence of an archbishop, let him make compensation with 150 shillings. if this occurs before another bishop or royal official [earldorman] let him make compensation with 100 shillings. 16. if someone steals a cow or mare and drives off a foal or calf, let him pay over one shilling as well as paying compensation for the adult animals according to their value. 17. if anyone entrust a child into the keeping of others, and he i.e. the offspring die while in that guardianship, let him that did the fostering prove his innocence of any crime if anyone accuse him of it. 18. if anyone grabs at a nun's clothing or breast with sexual intent, unless with her consent, let him pay double the rate of compensation we previously arranged for a lay-person. if she commit adultery and she is a betrothed woman, if she is a commoner, let 60 shillings be paid in compensation to the guarantor, and let that be in livestock or cattle, but let no one give any human as part of it. if she be of 600 shilling wergeld, let 100 shillings be paid in compensation to the guarantor. if she be of 1200 shilling wergeld, let compensation of 120 shillings be paid to the guarantor. 19. if anyone lends his weapon to another so that he may kill with it, they may combine, if they are willing, in the matter of paying the wergeld. if they are unwilling to co-operate, let him that proffered the weapon pay a third part of the wergeld and a third part of the fine. if he i.e. the loaner of the weapon prefer to clear himself and assert that he knew of no evil-intent in making the loan, he may do so. 20. if someone entrust cattle to another man's monk, without the approval of the patron if that monk, and it gets lost, let he that originally owned it suffer the loss. 21. if a priest slay another man, let all that he i.e. the priest brought into the monastic community be turned over to the possession of the victim's representatives, and let the bishop unfrock him; then he shall be removed from the monastery, unless the civil patron interceded for him. 22. if someone wishes in the local assembly to declare a claim for debt to the king's officer, and then wishes to cancel it, let him impute i.e. transfer it to a truer source if he can. if he cannot, let him forfeit the single value. 23. if a dog rends or bites someone, for the first misdeed let the owner hand over 6 shillings, if he is still giving it food. for as second occurrence, let him give 12 shillings, and for a third 30 shillings. if, upon any of these misdeeds, the dog escapes, nonetheless the penalty proceeds. if the dog commit more misdeeds and he i.e. the owner still keeps him, let him pay compensation at the level of a full wergeld as well as wound-compensation according to what he i.e. the dog has done. 24. if an ox wounds someone, let him i.e. the owner hand the animal over or come forward with some solution. 25. if someone forces a commoner's slave-woman to sexual intercourse, let him compensate the owner with 5 shillings and pay 60 shillings fine. if a male slave compel a female slave to sexual intercourse, let him atone with his testicles. 26. if someone force an underage woman into sexual intercourse, let the compensation be as that of an adult person. 27. if someone without kin on his father's side gets into a fight and kills someone, if he has maternal relatives, let them pay a third part of the wergeld; and a third part his guild-brethren; for a third part unpaid let him flee. if he has no maternal relatives, let the guild-brethren pay a half; for a half unpaid let him flee. 28. if someone kill a man so circumstanced and if he has no kinfolk, let them pay half the wergeld to the king, half to his guild-brethren. 29. if anyone in a group kills a 200 shilling wergeld man who is guiltless, let him that acknowledges the blow pay over wergeld and fine, and let every man who was of the party hand over 30 shillings in token of his complicity. 30. if it is a case of a 600 shilling wergeld man, let each of them pay 60 shillings as a token of their complicity, and let him that struck the fatal blow pay wergeld and fine. 31. if he that is killed is a 1200 shilling wergeld man, let each of them pay 120 shillings, and let the one who struck the fatal blow pay wergeld and fine. if a group commit this sort of killing, and later deny responsibility on oath, let them all be accused, and let them pay over the wergeld as a group, and together pay one fine such as corresponds to the wergeld. 32. if someone commits slander and it is proved against him, let him make atonement with no lighter penalty than having is tongue cut out. it i.e. the tongue must not be redeemed for any lesser value than would be reckoned in proportion to the wergeld. 33. if someone reproach another with breach of church-witnessed pledge and wishes to accuse him of not fulfilling any of those pledges that he gave him, let the accuser make his preliminary oath in four churches, and the other i.e. the accused, if he wishes to assert his good faith let him do that in twelve churches. 34. also it is laid down for traders that they should produce before the king's officer at the local assembly those people that they are taking inland with them, and let it be established how many of them there are. and let them take only such men as they can afterward be accountable for at the local assembly. an if they have need of more men along with them on their journey, let it always be declared, as often as is necessary, to the king's officer before the assembly. 35. if someone restrains a free man who is innocent, let him pay compensation of ten shillings. if he flogs him, compensation of twenty shillings. if he put him to torture compensation of thirty shillings. if as a humiliation he shave his head like a homolan, let him pay compensation of ten shillings. if he shaves him i.e. his head like a priest's, without binding him let him pay compensation of thirty shillings. if he shaves off his beard, let him pay compensation of twenty shillings. if he ties him up and then shaves his head like a priest's, let him pay compensation of sixty shillings. 36. it is established that if someone has a spear over his shoulder and someone else impales himself upon it, he i.e. the spear-carrier shall pay the wergeld without any fine. if he is impaled from in front, let him i.e. the spear-carrier pay the wergeld. if someone accuses him i.e. the spear-carrier of deliberately doing it, let him assert his innocence at a rate corresponding to the fine, and by that finish with the fine. and this applies if the point is above the rest of the shaft; if they are both level, point and shaft, let it count as no risk. 37. if someone wants to seek a new lord, transferring from one district to another district, let him do it with the knowledge of the chief officer to whom he was originally responsible in his shire. if he does it without his i.e. the officer's knowledge, let him who harbours him as his follower pay over 120 shillings as a fine. but let him divide it, paying the king half in the shire where the man was originally answerable, and half in that he has moved to. if he i.e. the man who moves had done anything wrong where he came from, let him who receives him as his follower pay the compensation and a fine of 120 shillings to the king. 38. if someone starts a fight in front of the king's officer at an assembly, let him pay compensation of wergeld and a fine, as it is customary; and as a priority a fine of 120 shillings to the officer [earldorman] concerned. if he disturb the assembly by drawing a weapon, let him pay 120 shillings to the officer by way of fine. if something of this sort occurs before the king's officer's deputy or a royal priest, let him pay 30 shillings by way of fine. 39. if someone starts a fight on the floor of a free man's house, let him pay compensation of six shillings to the freeman. if he draws his weapon but does not fight, let the compensation be half that. if either of these offences takes place in the house of a 600 shilling wergeld man, let the rate rise to triple the compensation due the freeman. in the case of a 1200 shilling wergeld man, a rate twice that of the compensation of the 600 shilling wergeld man. 40. for breaking into a royal residence the penalty shall be 120 shillings. into an archbishop's, ninety shillings. into another bishop's or a royal officer's, 60 shillings. into a 1200 shilling werwgeld man's, thirty shillings. into a 600 shilling wergeld man's fifteen shillings. for breaking into a freeman's property the penalty shall be five shillings. if something of this kind takes place while the levy [fyrd] is on duty elsewhere, or during lent, let it be a double compensation. if someone sets aside holy custom publicly in lent without an exemption, let him pay a compensation of 120 shillings. 41. the man who has charter land [bocland] which his kin left him, is not allowed, we enact, to part with it outside his kin-group, if there is written evidence or spoken witness that it was forbidden to be done by those people who originally acquired it or by those who passed it to him. let him i.e. the one who opposes the alienation process declare any such stipulation in the presence of the king and the bishop, with his own kin attending. 42. also we command that the man who knows his enemy is quiescent at home should not start a fight before he has asked him for justice. if he has the strength to surround his enemy and besiege him, let him contain him for 7 days within and not attack him if he i.e. the enemy is willing to abide within. after seven days if he is willing to surrender and hand over his weapons, let him i.e. the avenger keep him unharmed for thirty days and inform his kinsmen and his friends about him. but if he i.e. the enemy flee to a church, let the matter be resolved according to the privilege of the church, as we detailed above. but if he i.e. the avenger does not have the resources to besiege him i.e. the enemy, let him ride to the royal officer and ask him for help. if he i.e. the officer is unwilling to assist, let him ride and ask the king, before he mounts an attack. further, if someone happen upon his enemy and did not know beforehand that he was quiescent at home, if he i.e. the enemy is willing to hand over his weapons, let him be held for thirty days and inform his friends about him; if he is not willing to hand over his weapons then he i.e. the avenger may attack him. if he i.e. the enemy is willing to surrender and hand over his weapons and yet someone still attacks him, let the aggressor pay over wergeld and wound compensation, according to what he has done, and pay a fine, and lose his kin-status. we also declare someone may fight in support of his lord without blame, if anyone has attacked the lord; so too the lord may fight in support of his follower. in the same way, someone may fight on behalf of his blood relative if someone attack him wrongfully, but not take the side of a kinsman against his lord that we do not permit. someone may fight blamelessly if he discovers another with his lawful wife behind closed doors or under the one cover, or with his legitimate daughter, or with his legitimate sister or with his mother if she was given lawfully to his father. 43. to all free people let these following days be granted as holidays but not to slaves and servile workers; twelve days at christmas and the day that christ overcame the devil, and st. gregory's commemoration day, and seven days before easter and seven after, and one day at the celebration of st. peter and st. paul and the full week in harvest before st. mary's mass, and one day for the celebration of all hallows. the four wednesdays in the ember weeks shall be granted to all slaves to sell to anyone that pleases them to anything either that any man will give them in god's name or what they in any spare time can manage." 44.-77. the compensations for wounds is as follows: head if both bones of the head be pierced 30s., head if the outer bone only be pierced 15s.; an inch long wound in the area of the hair 1s., an inch long wound in the front of the hair 2s.; striking off the other ear 30s., if the hearing be affected so that he cannot hear 60s.; putting out an eye 60s. 6 1/3 d., if the eye stay in the head but he can see nothing with it 1/3 of the compensation be remitted; striking off a nose 60s.; striking a front tooth 8s., a back tooth 4s., a canine tooth 15s.; severing cheeks 15s., breaking a chin bone 12s.; perforating a windpipe 12s.; removing a tongue the same compensatin for any eye; wounding in the shoulder so that the muscle fluid flows out 30s.; shattering the arm above the elbow 15s.; shattering both arm bones 30s.; striking off the thumb 30s., if the nail is struck off 5s.; striking off the forefinger 15s., for the nail 4s.; striking off the middle finger 12s., for the nail 2s.; striking off the ring finger 17s., for the nail 4s.; striking off the little finger 9s., for the nail 1s.; wounding in the belly 30s., if the wound go through the body 20s. for each opening; perforating the thigh or hip 30s., if it be disabled 30s.; piercing the leg below the knee 12s., if he is disabled below the knee 30s.; striking off the great toe 20s., the second toe 15s., the middle toe 9s., the fourth toe 6s., the little toe 5s.; wounding in the testicles so that he cannot bear children 80s.; cutting off the arm below the elbow with the hand cut off 80s., wounding before the hair-line and below the sleeve and below the knee twice the value; permanently damaging the loins 60s., it they are stabbed 15s., if they are pierced through 30s.; wounding in the shoulder if the victim be alive 80s.; maiming a hand outwardly, providing it can be treated effectively 20s., if half the hand be lost 40s.; breaking a rib without breaking the skin 10s., if the skin be broken and the bone be extruded 15s.; cutting away an eye hand or foot 66s.6 1/3 d.; cutting off the leg at the knee 80s.; breaking a shoulder 20s.; hacking into a shoulder so that the bone extrudes 15s.; severing the tendon of the foot and if it can be treated so that will be sound again 12s., but if he is lame on account of the wound and he cannot be cured 30s.; severing the lesser tendon 6s.; severing the muscles up by the neck and damage them so severely that he has no control over them and however lives on thus maimed 100s., unless the witan appoint him a juster and greater sum. judicial procedure cases were held at monthly meetings of the hundred court. the king or one of his reeves, conducted the trial by compurgation, which was an appeal to the supernatural. in compurgation, the one complaining, called the "plaintiff", and the one defending, called the "defendant", each told their story and put his hand on the bible and swore "by god this oath is clean and true". a slip or a stammer would mean he lost the case. otherwise, community members would stand up to swear on behalf of the plaintiff or the defendant as to their reputation for veracity. the value of a man's oath was commensurate with his value or wergeld. a man's brothers were usually his compurgators. the number of compurgators varied according to the nature of the case and the rank of the persons concerned. if there were too few "compurgators", usually twelve in number, or recited poorly, their party lost. if this process was inconclusive, the parties could bring witnesses to declare such knowledge as they had as neighbors. these witnesses, male and female, swore to particular points determined by the court. if compurgation failed, the defendant was told to go to church and to take the sacrament only if he was innocent. if he took the sacrament, he was tried by the process of "ordeal", which was administered by the church. in the ordeal by cold water, he was given a drink of holy water and then bound hand and foot and thrown into water. if he floated, he was guilty beccause the holy water had rejected him. if he sank, he was innocent. it was not necessary to drown to be deemed innocent. in the ordeal by hot water, he had to pick up a stone from inside a boiling cauldron. if his hand was healing in three days, he was innocent. if it was festering, he was guilty. a similar ordeal was that of hot iron, in which one had to carry in his hands a hot iron for a certain distance. in the ordeal of the consecrated morsel, one would swallow a morsel; if he choked on it, he was guilty. the results of the ordeal were taken to indicate the will of god. an archbishop's or bishop's oath was incontrovertible. if they were accused, they could clear themselves with an oath that they were guiltless. lesser ranks could clear themselves with the oaths of at least three compurgators of their rank or, for more serious offenses, undergo the ordeal. the shire and hundred courts were held for free tenants of a lord and the judges were the tenants themselves. the feudal courts were held for unfree tenants and the lord or his steward was the judge. the earl presided over the shire court. he received one-third of the profits of justice. the judges were the owners of certain pieces of land. the shire court was held twice a year. there was little distinction between secular and spiritual jurisdiction. a bishop sat on the shire court. the shire court fulfilled all three functions of government: judicial, legislative, and executive. the courts had no efficient mode of compelling attendance or enforcing their orders, except by outlawing the offender, that is, putting him outside the protection of the law, so that anyone might kill him with impunity. in grave cases, a special expedition could be called against an offender. the individual wronged had his choice of payment in money or engaging in a blood feud. the sums of money of the system of bot, wer, and wite were enormous, and often could not be paid. then a man could be declared outlaw or sold as a slave. if a person was outlawed, he also forfeited all his goods to the king. cases of general importance concerned mayslaying, wounding, and cattle-stealing. a person convicted of murder, i.e. killing by stealth or robbery [taking from a person's robe, that is, his person or breaking into his home to steal] could be hung and his possessions confiscated. a man had a self-help right to arrest a thief hand-habbende [a thief found with the stolen goods in his hands] and a thief back-berend [a thief found with the stolen goods on his back or about his person]. any inanimate or animate object or personal chattel which was found by a court to be the immediate cause of death was forfeited as "deodand", for instance, a tree from which a man fell to his death, a beast which killed a man, a sword of a third party not the slayer that was used to kill a man. the deodand was to go to the dead man's kin so they could wreak their vengeance on it, which in turn would cause the dead man to lie in peace. this is a lawsuit regarding rights to feed pigs in a certain woodland: "in the year 825 which had passed since the birth of christ, and in the course of the second indiction, and during the reign of beornwulf, king of mercia, a council meeting was held in the famous place called clofesho, and there the said king beornwulf and his bishops and his earls and all the councilors of this nation were assembled. then there was a very noteworthy suit about wood pasture at sinton, towards the west in scirhylte. the reeves in charge of the pigherds wished to extend the pasture farther, and take in more of the wood than the ancient rights permitted. then the bishop and the advisors of the community said that they would not admit liability for more than had been appointed in aethelbald's day, namely mast for 300 swine, and that the bishop and the community should have two thirds of the wood and of the mast. the archbishop wulfred and all the councilors determined that the bishop and the community might declare on oath that it was so appointed in aethelbald's time and that they were not trying to obtain more, and the bishop immediately gave security to earl eadwulf to furnish the oath before all the councilors, and it was produced in 30 days at the bishop's see at worcester. at that time hama was the reeve in charge of the pigherds at sinton, and he rode until he reached worcester, and watched and observed the oath, as earl eadwulf bade him, but did not challenge it. here are the names and designations of those who were assembled at the council meeting ..." chapter 3 the times: 900-1066 there were many large landholders such as the king, earls, and bishops. earls were noblemen by birth, and often relatives of the king. they were his army commanders and the highest civil officials, each responsible for a shire. a breach of the public peace of an earl would occasion a fine. lower in social status were freemen: sokemen, and then, in decreasing order, villani [villeins], bordarii, and cottarii. the servi were the slaves. probably all who were not slaves were freemen. kings typically granted land in exchange for services of military duties, maintaining fortresses, and repairing bridges. less common services required by landlords include equipping a guard ship and guarding the coast, guarding the lord, military watch, maintaining the deer fence at the king's residence, alms giving, and church dues. since this land was granted in return for service, there were limitations on its heritability and often an heir had to pay a heriot to the landlord to obtain the land. a heriot was originally the weapons and armor of a man killed, which went to the king. the heriot of a thegn who had soken [or jurisdiction over their own lands] came to be about 80s.; of a kings' thegn about four lances, two coats of mail, two swords, and 125s.; of an earl about eight horses, four saddled and four unsaddled, eight lances, four coats of mail, four swords, and 500s. there were several thousand thegns, rich and poor, who held land directly of the king. some thegns had soken and others did not. free farmers who had sought protection from thegns in time of war now took them as their lords. a freeman could chose his lord, following him in war and working his land in peace. all able-bodied freemen were liable to military service in the fyrd [national militia], but not in a lord's private wars. in return, the lord would protect him against encroaching neighbors, back him in the courts of law, and feed him in times of famine. but often, lords raided each other's farmers, who fled into the hills or woods for safety. often a lord's fighting men stayed with him at his large house, but later were given land with inhabitants on it, who became his tenants. the lords were the ruling class and the greatest of them sat in the king's council along with bishops, abbots, and officers of the king's household. the lesser lords were local magnates, who officiated at the shire and hundred courts. staghunting, foxhunting, and hawking were reserved for lords who did not work with their hands. every free born person had the right to hunt other game. there was a great expansion of arable land. some land had been specifically allocated to certain individuals. some was common land, held by communities. if a family came to pay the dues and fines on certain common land, it could become personal to that family and was then known as heirland. most land came to be privately held from community-witnessed allotments or inheritance. bookland was those holdings written down in books. this land was usually land that had been given to the church or monasteries because church clerics could write. so many thegns gave land to the church, usually a hide, that the church held 1/3 of the land of the realm. folkland was that land that was left over after allotments had been made to the freemen and which was not common land. it was public land and a national asset and could be converted to heirland or bookland only by action of the king and witan. it could also be rented by services to the state via charter. a holder of folkland might express a wish, e.g. by testamentary action, for a certain disposition of it, such as an estate for life or lives for a certain individual. but a distinct act by the king and witan was necessary for this wish to take effect. small private transactions of land could be done by "livery of seisin" in the presence of neighbors. "seisin" is rightful possession. a man in possession of land is presumed to have "seisin", unless and until someone else can establish a better title by legal process. all estates in land could be let, lent, or leased by its holders, and was then known as "loenland". ploughs and wagons could be drawn by four or more oxen or horses in sets of two behind each other. oxenshoes and horseshoes prevented lameness due to cracked hooves. horse collars especially fitted for horses, replaced oxen yoke that had been used on horses. the horse collar did not restrict breathing and enabled horses to use the same strength of oxen. also, horses had better endurance and faster speed. a free holder's house was wood, perhaps with a stone foundation, and roofed with thatch or tiles. there was a main room or hall, with bed chambers around it. beyond was the kitchen, perhaps outside under a lean-to. these buildings were surrounded by a bank or stiff hedge. simple people lived in huts made from wood and mud, with one door and no windows. they slept around a wood-burning fire in the middle of the earthen floor. they wore shapeless clothes of goat hair and unprocessed wool from their sheep. they ate rough brown bread, vegetable and grain broth, ale from barley, bacon, beans, milk, cabbage, onion, apples, plums, cherries, and honey for sweetening or mead. vegetables grown in the country included onions, leeks, celery, lettuce, radish, carrots, garlic, shallots, parsnip, dill, chervil, marigold, coriander, and poppy. in the summer, they ate boiled or raw veal and wild fowl such as ducks, geese, or pigeons, and game snared in the forest. poultry was a luxury food, but recognized as therapeutic for invalids, especially in broth form [chicken soup]. venison was highly prized. there were still some wild boar, which were hunted with long spears, a greyhound dog, and hunting horns. they sometimes mated with the domestic pigs which roamed the woodlands. in september, the old and infirm pigs were slaughtered and their sides of bacon smoked in the rafters for about a month. their intestines provided skin for sausages. in the fall, cattle were slaughtered and salted for food during the winter because there was no more pasture for them. however, some cows and breed animals were kept through the winter. for their meals, people used wooden platters, sometimes earthenware plates, drinking horns, drinking cups from ash or alderwood turned on a foot-peddled pole lathe, and bottles made of leather. their bowls, pans, and pitchers were made by the potter's wheel. water could be boiled in pots made of iron, brass, lead, or clay. water could be carried in leather bags because leather working preservative techniques improved so that tanning prevented stretching or decaying. at the back of each hut was a hole in the ground used as a latrine, which flies frequented. moss was used for toilet paper. parasitical worms in the stool were ubiquitous. most of the simple people lived in villages of about 20 homes circling a village green or lining a single winding lane. there were only first names, and these were usually passed down family lines. to grind their grain, the villagers used hand mills with crank and gear, or a communal mill, usually built of oak, driven by power transmitted through a solid oak shaft, banded with iron as reinforcement, to internal gear wheels of elm. almost every village had a watermill. it might be run by water shooting over or flowing under the wheel. clothing for men and women was made from coarse wool, silk, and linen and was usually brown in color. only the wealthy could afford to wear linen or silk. men also wore leather clothing, such as neckpieces, breeches, ankle leathers, shoes, and boots. boots were worn when fighting. they carried knives or axes under metal belts. they could carry items by tying leather pouches onto their belts with their drawstrings. they wore leather gloves for warmth and for heavy working with their hands. people were as tall, strong and healthy as in the late 1900s, not having yet endured the later malnourishment and overcrowding that was its worst in the 1700s and 1800s. their teeth were very healthy. most adults died in their 40s, after becoming arthritic from hard labor. people in their 50s were deemed venerable. boys of twelve were considered old enough to swear an oath of allegiance to the king. girls married in their early teens, often to men significantly older. the lands of the large landholding lords were administered by freemen. they had wheat, barley, oats, and rye fields, orchards, vineyards for wine, and beekeeping areas for honey. on this land lived not only farm laborers, cattle herders, shepherds, goatherds, and pigherds, but craftsmen such as goldsmiths, hawkkeepers, dogkeepers, horsekeepers, huntsmen, foresters, builders, weaponsmiths, embroiders, bronze smiths, blacksmiths, watermill wrights, wheelwrights, wagon wrights, iron nail makers, potters, soap makers (made from wood ashes reacting chemically with fats or oils), tailors, shoemakers, salters (made salt at the "wyches", which later became towns ending with '-wich'), bakers, cooks, and gardeners. most men did carpentry work. master carpenters worked with ax, hammer, and saw to make houses, doors, bridges, milk buckets, washtubs, and trunks. blacksmiths made gates, huge door hinges, locks, latches, bolts, and horseshoes. the lord loaned these people land on which to live for their life, called a "life estate", in return for their services. the loan could continue to their widows or children who took up the craft. mills were usually powered by water. candles were made from beeswax, which exuded a bright and steady light and pleasant smell, or from mutton fat, which had an unpleasant odor. the wheeled plough and iron-bladed plough made the furrows. one man held the plough and another walked with the oxen, coaxing them forward with a stick and shouts. seeds were held in an apron for seeding. farm implements included spades, shovels, rakes, hoes, buckets, barrels, flails, and sieves. plants were pruned to direct their growth and to increase their yield. everyone got together for feasts at key stages of the farming, such as the harvest. easter was the biggest feast. when the lord was in the field, his lady held their estate. there were common lands of these estates as well as of communities. any proposed new settler had to be admitted at the court of this estate. the land of some lords included fishing villages along the coasts. from the sea were caught herrings, salmon, porpoises, sturgeon, oysters, crabs, mussels, cockles, winkles, plaice, flounder, and lobsters. sometimes whales were driven into an inlet by many boats. river fish included eels, pike, minnows, burbot, trout, and lampreys. they were caught by brushwood weirs, net, bait, hooks, and baskets. oysters were so numerous that they were eaten by the poor. the king's peace extended over the waterways. if mills, fisheries, weirs, or other structures were set up to block them, they were to be destroyed and a penalty paid to the king. other lords had land with iron mining industries. ore was dug from the ground and combined with wood charcoal in a shaft furnace to be smelted into liquid form. wood charcoal was derived from controlled charring of the wood at high temperatures without using oxygen. this burned impurities from it and left a purer carbon, which burned better than wood. the pure iron was extracted from this liquid and formed into bars. to keep the fire hot, the furnaces were frequently placed at windswept crossings of valleys or on the tops of hills. some lords had markets on their land, for which they charged a toll for participation. there were about fifty markets in the nation. cattle and slaves (from the word "slav") were the usual medium of exchange. an ox was still worth about 30d. shaking hands was symbolic of an agreement for a sale, which had to be carried out in front of witnesses at the market for any property worth over 20d. the higher the value of the property, the more witnesses were required. witnesses were also required for the exchange of property and to vouch for cattle having being born on the property of a person claiming them. people traveled to markets on deep, sunken roads and narrow bridges kept in repair by certain men who did this work as their service to the king. the king's peace extended to a couple of high roads, i.e. highways, running the length of the country and a couple running its width. salt was used throughout the nation to preserve meat over the winter. inland saltworks had an elaborate and specialized organization. the chief one used saltpans and furnaces to extract salt from natural brine springs. they formed little manufacturing enclaves in the midst of agricultural land, and they were considered to be neither large private estates headed by a lord nor appurtenant to such. they belonged jointly to the king and the local earl, who shared, at a proportion of two to one, the proceeds of the tolls upon the sale of salt and methods of carriage on the ancient salt ways according to cartload, horse load, or man load. sometimes there were investors in a portion of the works who lived quite at distance away. the sales of salt were mostly retail, but some bought to resell. peddlers carried salt to sell from village to village. some smiths traveled for their work, for instance, stonewrights building arches and windows in churches, and lead workers putting lead roofs on churches. an example of a grant of hides of land is: "[god has endowed king edred with england], wherefore he enriches and honors men, both ecclesiastic and lay, who can justly deserve it. the truth of this can be acknowledged by the thegn aelfsige hunlafing through his acquisition of the estate of 5 hides at alwalton for himself and his heirs, free from every burden except the repair of fortifications, the building of bridges and military service; a prudent landowner church dues, burial fees and tithes. [this land] is to be held for all time and granted along with the things both great and small belonging to it." a bishop gave land to a faithful attendant for his life and two other lives as follows: "in 904 a.d., i, bishop werfrith, with the permission and leave of my honorable community in worcester, grant to wulfsige, my reeve, for his loyal efficiency and humble obedience, one hide of land at aston as herred held it, that is, surrounded by a dyke, for three lives and then after three lives the estate shall be given back without any controversy to worcester." at seaports on the coast, goods were loaded onto vessels owned by english merchants to be transported to other english seaports. london was a market town on the north side of the thames river and the primary port and trading center for foreign merchants. streets that probably date from this time include milk, bread, and wood streets, and honey lane. there were open air markets such as billingsgate. there were wooden quays over much of the river front. houses were made of wood, with one sunken floor, or a ground floor with a cellar beneath. some had central stone hearths and earth latrines. there were crude pottery cooking pots, beakers and lamps, wool cloth, a little silk, simple leather shoes, pewter jewelry, looms, and quernstones (for grinding flour). wool, skins, hides, wheat, meal, beer, lead, cheese, salt, and honey were exported. wine (mostly for the church), fish, timber, pitch, pepper, garlic, spices, copper, gems, gold, silk, dyes, oil, brass, sulphur, glass, slaves, and elephant and walrus ivory were imported. goods from the continent were sold at open stalls in certain streets. furs and slaves were traded. there was a royal levy on exports by foreigners merchants. southwark, across the thames river from london,was reachable by a bridge. southwark contained sleazy docks, prisons, gaming houses, and brothels. guilds in london were first associations of neighbors for the purposes of mutual assistance. they were fraternities of persons by voluntary compact to assist each other in poverty, including their widows or orphans and the portioning of poor maids, and to protect each other from injury. their essential features are and continue to be in the future: 1) oath of initiation, 2) entrance fee in money or in kind and a common fund, 3) annual feast and mass, 4) meetings at least three times yearly for guild business, 5) obligation to attend all funerals of members, to bear the body if need be from a distance, and to provide masses for the dead, 6) the duty of friendly help in cases of sickness, imprisonment, house burning, shipwreck, or robbery, 7) rules for decent behavior at meetings, and 8) provisions for settling disputes without recourse to the law. both the masses and the feast were attended by the women. frequently the guilds also had a religious ceremonial to affirm their bonds of fidelity. they readily became connected with the exercise of trades and with the training of apprentices. they promoted and took on public purposes such as the repairing of roads and bridges, the relief of pilgrims, the maintenance of schools and almshouses, and the periodic performance of pageants and miracle plays telling scriptural history, which could last for several days. the devil often was prominent in miracle plays. many of these london guilds were known by the name of their founding member. there were also frith guilds (peace guilds) and a knights' guild. the frith guild's main object was to enforce the king's laws, especially the prevalent problem of theft. they were especially established by bishops and reeves. members met monthly and contributed about 4d. to a common fund, which paid a compensation for items stolen. they each paid 1s. towards the pursuit of the thief. the members were grouped in tens. members with horses were to track the thief. members without horses worked in the place of the absent horse owners until their return. when caught, the thief was tried and executed. overwhelming force was used if his kindred tried to protect him. his property was used to compensate the victim for his loss and then divided between the thief's wife, if she was innocent, the king, and the guild. owners of slaves paid into a fund to give one half compensation to those who lost slaves by theft or escape, and recaptured slaves were to be stoned to death or hanged. the members of the peace guild also feasted and drank together. when one died, the others each sang a song or paid for the singing of fifty psalms for his soul and gave a loaf. the knights' guild was composed of thirteen military persons to whom king edgar granted certain waste land in the east of london, toward aldgate, and also portsoken, which ran outside the eastern wall of the city to the thames, for prescribed services performed, probably defense of the vulnerable east side of the city. this concession was confirmed by king edward the confessor in a charter at the suit of certain citizens of london, the successors of these knights. edward granted them sake and soke, the right to hold a court for the offender and to receive the profits of jurisdiction, over their men. edward the confessor made these rules for london: 1. be it known that within the space of three miles from all parts outside of the city a man ought not to hold or hinder another, and also should not do business with him if he wish to come to the city under its peace. but when he arrives in the city, then let the market be the same to the rich man as to the poor. 2. be it also known that a man who is from the court of the king or the barons ought not to lodge in the house of any citizen of london for three nights, either by privilege or by custom, except by consent of the host. for if he force the host to lodge him in his house and there be killed by the host, let the host choose six from his relatives and let him as the seventh swear that he killed him for the said cause. and thus he will remain quit of the murder of the deceased towards the king and relatives and lords of the deceased. 3. and after he has entered the city, let a foreign merchant be lodged wherever it please him. but if he bring dyed cloth, let him see to it that he does not sell his merchandise at retail, but that he sell not less than a dozen pieces at a time. and if he bring pepper, or cumin, or ginger, or alum, or brasil wood, or resin, or incense, let him sell not less than fifteen pounds at a time. but if he bring belts, let him sell not less than a thousand at a time. and if he bring cloths of silk, or wool or linen, let him see that he cut them not, but sell them whole. but if he bring wax, let him sell not less than one quartanum. also a foreign merchant may not buy dyed cloth, nor make the dye in the city, nor do any work which belongs by right to the citizens. 4. also no foreign merchant with his partner may set up any market within the city for reselling goods in the city, nor may he approach a citizen for making a bargain, nor may he stop longer in the city. every week in london there was a folkmote at st. paul's churchyard, where majority decision was a tradition. by 1032, it had lost much of its power to the husting [household assembly in danish] court. the folkmote then had responsibility for order and was the sole authority for proclaiming outlaws. it met three times a year at st. paul's churchyard and there acclaimed its sheriff and its justiciar, or if the king had chosen his officer, heard who was chosen and listened to his charge. it also yearly arranged the watch and dealt with risks of fire. it was divided into wards, each governed by an alderman who presided over the wardmote, and represented his ward at the folkmote. each guild became a ward. the chief alderman was the portreeve. london paid one-eighth of all the taxes of england. later in the towns, merchant guilds grew out of charity associations whose members were bound by oath to each other and got together for a guild feast every month. some traders of these merchant guilds became so prosperous that they became landholders. many market places were dominated by a merchant guild, which had a monopoly of the local trade. in the great mercantile towns all the land and houses would be held by merchants and their dependents, all freeholders were connected with a trade, and everyone who had a claim on public office or magistry would be a member of the guild. the merchant guild could admit into their guild country villeins, who became freemen if unclaimed by their lords for a year and a day. every merchant who had made three long voyages on his own behalf and at his own cost ranked as a thegn. there were also some craft guilds composed of handicraftsmen or artisans. escaped bonded agricultural workers, poor people, and traders without land migrated to towns to live, but were not citizens. towns were largely self-sufficient, but salt and iron came from a distance. the king's established in every shire at least one town with a market place where purchases would be witnessed, and a mint where reliable money was coined by a moneyer, who put his name on his coins. there were eight moneyers in london. coins were issued to be of value for only a couple of years. then one had to exchange them for newly issued ones at a rate of about 10 old for 8 or 9 new. the difference constituted a tax. roughly 10% of the people lived in towns. some took surnames such as tanner, weaver, or carpenter. some had affectionate or derisive nicknames such as clear-hand, fresh friend, soft bread, foul beard, money taker, or penny purse. craftsmen in the 1000s included goldsmiths, embroiderers, illuminators of manuscripts, and armorers. edward the confessor, named such for his piety, was a king of 24 years who was widely respected for his intelligence, resourcefulness, good judgment, and wisdom. his educated queen edith, whom he relied on for advice and cheerful courage, was a stabilizing influence on him. they were served by a number of thegns, who had duties in the household, which was composed of the hall, the courtyard, and the bedchamber. they were important men thegns by rank. they were landholders, often in several areas, and held leading positions in the shires. they were also priests and clerics, who maintained the religious services and performed tasks for which literacy was necessary. edward was the first king to have a "chancellor", who was the first great officer of state. he kept a royal seal and was the chief royal chaplain. he did all the secretarial work of the household and court, drew up and sealed the royal writs, conducted the king's correspondence, and kept all the royal accounts. the word "chancellor" signified a screen behind which the secretarial work of the household was done. he had the special duty of securing and administering the royal revenue from vacant benefices. the second great office was that of treasurer, who headed the exchequer. the most important royal officers were the chamberlains, who took care of the royal bedchamber and adjoining wardrobe used for dressing and storage of valuables, and the priests. these royal officers had at first been responsible only for domestic duties, but gradually came to assume public administrative tasks. edward wanted to avoid the pressures and dangers of living in the rich and powerful city of london. so he rebuilt a monastic church, an abbey, and a palace at westminster about two miles upstream. he started the growth of westminster as a center of royal and political power; kings' councils met there. royal coronations took place at the abbey. since edward traveled a lot, he established a storehouse-treasury at winchester to supplement his traveling wardrobe. at this time, spanish stallions were imported to improve english horses. london came to have the largest and best trained army in england. the court invited many of the greatest magnates and prelates [highest ecclesiastical officials, such as bishops] of the land to the great ecclesiastical festivals, when the king held more solemn courts and feasted with his vassals for several days. these included all the great earls, the majority of bishops, some abbots, and a number of thegns and clerics. edward had a witan of wise men to advise him, but sometimes the king would speak in the hall after dinner and listen to what comments were made from the mead-benches. as the court moved about the country, many men came to pay their respects and attend to local business. edward started the practice of king's touching people to cure them of scrofula, a disease which affected the glands, especially in the head and neck. it was done in the context of a religious ceremony. the main governmental activities were: war, collection of revenue, religious education, and administration of justice. for war, the shires had to provide a certain number of men and the ports quotas of ships with crews. the king was the patron of the english church. he gave the church peace and protection. he presided over church councils and appointed bishops. as for the administration of justice, the public courts were almost all under members of edward's court, bishops, earls, and reeves. edward's mind was often troubled and disturbed by the threat that law and justice would be overthrown, by the pervasiveness of disputes and discord, by the raging of wicked presumption, by money interfering with right and justice, and by avarice kindling all of these. he saw it as his duty to courageously oppose the wicked by taking good men as models, by enriching the churches of god, by relieving those oppressed by wicked judges, and by judging equitably between the powerful and the humble. he was so greatly revered that a comet was thought to accompany his death. the king established the office of the chancery to draft documents and keep records. it created the writ, which was a small piece of parchment [sheep skin] addressed to a royal official or dependent commanding him to perform some task for the king. by the 1000s a.d., the writ contained a seal: a lump of wax with the impress of the great seal of england which hung from the bottom of the document. writing was done with a sharpened goose-wing quill. ink was obtained from mixing fluid from the galls made by wasps for their eggs on oak trees, rainwater or vinegar, gum arabic, and iron salts for color. a king's grant of land entailed two documents: a charter giving boundaries and conditions and a writ, usually addressed to the shire court, listing the judicial and financial privileges conveyed with the land. these were usually sac [jurisdiction of a lord to hold court and to impose fines and amercements] and soke [jurisdiction of a private court of a noble or institution to execute the laws and administer justice over inhabitants and tenants of the estate], toll [right to have a market and to collect a payment on the sale of cattle and other property on one's own estate] and team [a privilege granted by royal charter to the lord of a manor for the having, restraining, and judging of villeins with their children, goods, and chattels], and infangenetheof [the authority to hang and take the chattels of a thief caught on his estate]. the town of coventry consisted of a large monastery estate, headed by an abbot, and a large private estate headed by a lord. the monastery was granted by edward the confessor full freedom and these jurisdictions: sac and soke, toll and team, hamsocne [the authority to fine a person for breaking into and making entry by force into the dwelling of another], forestall [the authority to fine a person for robbing others on the road], bloodwite [the authority to impose a forfeiture for assault involving bloodshed], fightwite [the authority to fine for fighting], weordwite [the authority to fine for manslaughter, but not for willful murder], and mundbryce [the authority to fine for any breach of the peace, such as trespass on lands]. every man was expected to have a lord to whom he gave fealty. he swore by a fealty oath such as: "by the lord, before whom this relic is holy, i will be to faithful and true, and love all that he loves, and shun all that he shuns, according to god's law, and according to the world's principle, and never, by will nor by force, by word nor by work, do ought of what is loathful to him; on condition that he keep me as i am willing to deserve, and all that fulfill that our agreement was, when i to him submitted and chose his will." if a man was homeless or lordless, his brothers were expected to find him such, e.g. in the folkmote. otherwise, he was to be treated as a fugitive and could be slain, and anyone who had harbored him would pay a penalty. brothers were also expected to protect their minor kinsmen. when the oath of fealty was sworn, the man usually did homage to this lord symbolized by holding his hands together between those of his lord. marriages were determined by men asking women to marry them. if a woman said yes, he paid a sum to her kin for her "mund" [jurisdiction or protection over her] and gave his oath to them to maintain and support the woman and any children born. as security for this oath, he gave a valuable object or "wed". the couple were then betrothed. marriage ceremonies were performed by priests in churches. the groom had to bring friends to his wedding as sureties to guarantee his oath to maintain and support his wife and children. those who swore to take care of the children were called their "godfathers". the marriage was written into church records. after witnessing the wedding, friends ate the great loaf, or first bread made by the bride. this was the forerunner of the wedding cake. they drank special ale, the "bride ale" (from hence the work "bridal"), to the health of the couple. women could own land, houses, and furniture and other property. they could even make wills that disinherited their sons. this marriage agreement with an archbishop's sister provides her with land, money, and horsemen: "here in this document is stated the agreement which wulfric and the archbishop made when he obtained the archbishop's sister as his wife, namely he promised her the estates at orleton and ribbesford for her lifetime, and promised her that he would obtain the estate at knightwick for her for three lives from the community at winchcombe, and gave her the estate at alton to grant and bestow upon whomsoever she pleased during her lifetime or at her death, as she preferred, and promised her 50 mancuses of gold and 30 men and 30 horses. the witnesses that this agreement was made as stated were archbishop wulfstan and earl leofwine and bishop aethelstan and abbot aelfweard and the monk brihtheah and many good men in addition to them, both ecclesiastics and laymen. there are two copies of this agreement, one in the possession of the archbishop at worcester and the other in the possession of bishop aethelstan at hereford." this marriage agreement provided the wife with money, land, farm animals and farm laborers; it also names sureties, the survivor of whom would receive all this property: "here is declared in this document the agreement which godwine made with brihtric when he wooed his daughter. in the first place he gave her a pound's weight of gold, to induce her to accept his suit, and he granted her the estate at street with all that belongs to it, and 150 acres at burmarsh and in addition 30 oxen and 20 cows and 10 horses and 10 slaves. this agreement was made at kingston before king cnut, with the cognizance of archbishop lyfing and the community at christchurch, and abbot aelfmaer and the community at st. augustine's, and the sheriff aethelwine and sired the old and godwine, wulfheah's son, and aelfsige cild and eadmaer of burham and godwine, wulfstan's son, and carl, the king's cniht. and when the maiden was brought from brightling aelfgar, sired's son, and frerth, the priest of forlstone, and the priests leofwine and wulfsige from dover, and edred, eadhelm's son, and leofwine, waerhelm's son, and cenwold rust and leofwine, son of godwine of horton, and leofwine the red and godwine, eadgifu's son, and leofsunu his brother acted as security for all this. and whichever of them lives the longer shall succeed to all the property both in land and everything else which i have given them. every trustworthy man in kent and sussex, whether thegn or commoner, is cognizant of these terms. there are three of these documents; one is at christchurch, another at st. augustine's, and brihtric himself has the third." nuns and monks lived in segregated nunneries and monasteries on church land and grew their own food. the local bishop usually was also an abbot of a monastery. the priests and nuns wore long robes with loose belts and did not carry weapons. their life was ordered by the ringing of the bell to start certain activities, such as prayer; meals; meetings; work in the fields, gardens, or workshops; and copying and illuminating books. they chanted to pay homage and to communicate with god or his saints. they taught justice, piety, chastity, peace, and charity; and cared for the sick. caring for the sick entailed mostly praying to god as it was thought that only god could cure. they bathed a few times a year. they got their drinking water from upstream of where they had located their latrines over running water. the large monasteries had libraries, dormitories, guesthouses, kitchens, butteries to store wine, bakehouses, breweries, dairies, granaries, barns, fishponds, orchards, vineyards, gardens, workshops, laundries, lavatories with long stone or marble washing troughs, and towels. slavery was diminished by the church by excommunication for the sale of a child over seven. the clergy taught that manumission of slaves was good for the soul of the dead, so it became frequent in wills. the clergy were to abstain from red meat and wine and were to be celibate. but there were periods of laxity. punishment was by the cane or scourge. the archbishop of canterbury began anointing new kings at the time of coronation to emphasize that the king was ruler by the grace of god. as god's minister, the king could only do right. from 973, the new king swore to protect the christian church, to prevent inequities to all subjects, and to render good justice, which became a standard oath. it was believed that there was a celestial hierarchy, with heavenly hosts in specific places. the heavenly bodies revolved in circles around the earthly world on crystal spheres of their own, which were serene, harmonious, and eternal. this contrasted with the change, death, and decay that occurred in the earthly world. also in this world, aristotle's four elements of earth, air, fire, and water sought their natural places, e.g. bubbles of air rising through water. the planets were called wanderers because their motion did not fit the circular scheme. god intervened in daily life, especially if worshipped. jesus christ, his mother the virgin mary and saints were also worshipped. saints such as bede and hilda performed miracles, especially ones of curing. their spirits could be contacted through their relics, which rested at the altars of churches. sin resulted in misfortune. when someone was said to have the devil in him, people took it quite literally. omens fortold events. a real jack frost nipped noses and fingers and made the ground too hard to work. little people, elves, trolls, and fairies inhabited the fears and imaginings of people. the forest was the mysterious home of spirits. people prayed to god to help them in their troubles and from the work of the devil. prayer was often a charm to conjure up friendly spirits rather than an act of supplication. sorcerers controlled the forces of nature with the aid of spirits. since natural causes of events were unknown, people attributed events to wills like their own. illness and disease were thought to be caused by demons and witches. to cure illness, people hung charms around their neck and went to good witches for treatments of magic and herbs. for instance, the remedy for "mental vacancy and folly" was a drink of "fennel, agrimony, cockle, and marche".some herbs had hallucinogenic effects, which were probably useful for pain. bloodletting by leeches and cautery were used for most maladies, which were thought to be caused by imbalance of the four bodily humors: sanguine, phlegmatic, choleric, and melancholic. these four humors reflected the four basic elements air, water, fire, and earth. blood was hot and moist like air; phlegm was cold and moist like water; choler or yellow bile was hot and dry like fire; and melancholy or black bile was cold and dry like earth. bede had explained that when blood predominates, it makes people joyful, glad, sociable, laughing, and talking a great deal. phlegm renders them slow, sleepy, and forgetful. red cholic makes them thin, though eating much, swift, bold, wrathful, and agile. black cholic makes them serious of settled disposition, even sad. to relieve brain pressure and/or maybe to exorcise evil spirits, holes were made in skulls by a drill with a metal tip that was caused to turn back and forth by a strap wrapped around a wooden handle. a king's daughter edith inspired a cult of holy wells, whose waters were thought to alleviate eye conditions. warmth and rest were also used for illness. agrimony boiled in milk was thought to relieve impotence in men. it was known that the liver casted out impurities in the blood. the stages of fetal growth were known. the soul was not thought to enter a fetus until after the third month, so presumably abortions within three months were allowable. the days of the week were sun day, moon day, tiw's day (viking god of war), woden's day (viking god of victory, master magician, calmer of storms, and raiser of the dead), thor's day (viking god of thunder), frig's day (viking goddess of fertility and growing things), and saturn's day (roman god). special days of the year were celebrated: christmas, the birthday of jesus christ; the twelve days of yuletide (a viking tradition) when candles were lit and houses decorated with evergreen and there were festivities around the burning of the biggest log available; plough monday for resumption of work after yuletide; february 14th with a feast celebrating saint valentinus, a roman bishop martyr who had married young lovers in secret when marriage was forbidden to encourage men to fight in war; new year's day on march 25th when seed was sown and people banged on drums and blew horns to banish spirits who destroy crops with disease; easter, the day of the resurrection of jesus christ; whitsunday, celebrating the descent of the holy spirit on the apostles of jesus and named for the white worn by baptismal candidates; may day when flowers and greenery was gathered from the woods to decorate houses and churches, morris dancers leapt through their villages with bells, hobby horses, and waving scarves, and people danced around a may pole holding colorful ribbons tied at the top so they became entwined around the pole; lammas on august 1st, when the first bread baked from the wheat harvest was consecrated; harvest home when the last harvest load was brought home while an effigy of a goddess was carried with reapers singing and piping behind, and october 31st, the eve of the christian designated all hallow day, which then became known as all hallow even, or halloween. people dressed as demons, hobgoblins, and witches to keep spirits away from possessing them. trick or treating began with christian beggars asking for "soul cake" biscuits in return for praying for dead relatives. ticktacktoe and backgammon were played. the languages of invaders had produced a hybrid language that was roughly understood throughout the country. the existence of europe, africa, asia, and india were known. jerusalem was thought to be at the center of the world. there was an annual tax of a penny on every hearth, peter's pence, to be collected and sent to the pope in rome yearly. ecclesiastical benefices were to pay church-scot, a payment in lieu of first fruits of the land, to the pope. the law there were several kings in this period. the king and witan deliberated on the making of new laws, both secular and spiritual, at the regularly held witanagemot. there was a standard legal requirement of holding every man accountable, though expressed in different ways, such as the following three: every freeman who does not hold land must find a lord to answer for him. every lord shall be personally responsible as surety for the men of his household. [this included female lords.] (king athelstan) "and every man shall see that he has a surety, and this surety shall bring and keep him to [the performance of] every lawful duty. 1. -and if anyone does wrong and escapes, his surety shall incur what the other should have incurred. 2. -if the case be that of a thief and his surety can lay hold of him within twelve months, he shall deliver him up to justice, and what he has paid shall be returned to him." (king edgar) every freeman who holds land, except lords with considerable landed property, must be in a local tithing, usually ten to twelve men, in which they serve as personal sureties for each other's peaceful behavior. if one of the ten landholders in a tithing is accused of an offense, the others have to produce him in court or pay a fine plus pay the injured party for the offense, unless they could prove that they had no complicity in it. if the man is found guilty but can not pay, his tithing must pay his fine. the chief officer is the "tithing man" or "capital pledge". there were probably ten tithings in a hundred. (king edward the confessor). canute reigned from 1016 to 1035. the following are substantially all the laws of canute with an * before ones of special interest. proclamations of canute are: all my reeves, under pain of forfeiting my friendship and all that they possess and their own lives, shall govern my people justly everywhere, and to pronounce just judgments with the cognizance of the bishops of the dioceses, and to inflict such mitigated penalties as the bishop may approve and the man himself may be able to bear. i enjoin upon all the sheriffs and reeves throughout my kingdom that, as they desire to retain my friendship and their own sercurity, they employ no unjust force towards any man, either rich or poor, but that all, both nobles and commoners, rich and poor, shall have their right of just possession, which shall not be infringed upon in any way, either for the sake of obtaining the favour of the king or of gratifying any powerful person or of collecting money for me; and i have no need that monoey should be collected for me by any unust exactions. ecclesiastical laws of canute are: above all else, love and honour one god, and uphold one christian faith, and love king canute with due fidlity. *maintain the security and sanctity of the churches of god, and frequently attend them for the salvation of our souls and our own benefit. he who violates the protection given by the church of god within its walls, or the protection granted by a christian king in person shall lose both land and life, unless the king is willing to pardon him. homicide within the church's walls shall not be atoned for by any payment of compensation, and everyone shall pursue the miscreant, unless it happen that he escapes from there and reaches so inviolable a sanctuary that the king, because of that, grants him his life, upon condition that he makes full amends both towards god and towards men. the first conditon is that he shall give his own wergeld to christ and to the king and by that means obtain the legal right to offer compensation. and if the king allows compensation, amends for the violation of the protection of the church shall be made by the payment to the church of the full fine for breach of the king's mund, and the purification of the church shall be carried out as is fiting, and compensation both to the kin and to the lord of the slain man shall be fully psid, and supplication shall earnestly be made to god. if the protection of the church is broken by offenses such as fighting or robbery, without the taking of life, amends shall diligently be made in accordance with the nature of the offense. the penalty for violation of the protection of a principal church is 5 pounds, for a church of medium rank is 120s., for a church with a graveyard 60s., and for a country chapel where there is no graveyard, 30s. maintain the security and sanctity of holy things and priests according to their rank, for they drive away devils, baptize anyone, hallow the eucharist, and intercede to christ for the needs of the people. if an accusation of evil practices is made against a priest and he knows himself to be guiltless, he shall say mass, if he dares, and thus clear himelf by the holy communion in the cases of a simple accusation, and by the holy communion with two supporters of the same ecclesiastical rank in the case of a triple accusation. if he has no supporters, he shall go to the ordeal of consecrated bread. no monk who belongs to a monastery may demand or pay compensation incurred by vendetta because he leaves the law of his kindred behind when he accepts monastic rule. if a priest is concerned in false witness or perjury or is the accessory and accomplice of thieves, he shall be cast out from the fellowship of those in holy orders and forfeit every privilege, unless he make amends both towards god and towards men, as the bishop shall prescribe, and find surtey for future behavior. servants of god shall call upon christ to intercede for all christian people and practice celibacy. those who turn away from marriage and observe celibacy shall enjoy the privileges of a thegn. *no christian man shall marry among his own kin within six degress of relationship or with the widow of a man as nearly related to him as that, or with a near relative of his first wife's. no man shall marry his god-mother, a nun, or a divorced woman. he shall not commit adultery. he shall have no more wives that one, with whom he shall remain as long as she lives. ecclesiastical dues shall be paid yearly, namely, plough alms 15 days after easter, the tithe [tenth] of young animals at pentecost, and the tithe of the fruits of the earth at all saints. otherwise the king's reeve, the bishop's reeve, and the lord's reeve shall take what is due and assign him the next tenth, and the eight remaining parts shall go half to the lord and half to the bishop. peter's pence shall be paid by st. peter's day or pay the bishop the penny and 30d. in addition and 120s. to the king. church dues shall be paid at martinmas, or pay the biship eleven fold and 120s. to the king. any thegn with a church with attached graveyard on his land shall give a third part of his own tithes to his church. if he has a church without a graveyard, he shall give his priest whatever he desires from the nine remaining parts. light dues shall be paid a halfpenny worth of wax from every hide three times a year. payment for the souls of the dead should be rendered before the grave is closed. *all festivals and fasts, such as lent, shall be observed. the festival of every sunday shall be observed from noon on saturday till dawn on monday. no trading, public gatherings, hunting, or secular occupations shall be done on sunday. we forbid ordeals and oaths during festivals and fasts. to avoid the torment of hell, let us turn away from sin and confess our misdeeds to out confessors and cease from evil and make amends. each of us shall treat others as we desire to be treated. every christian man shall prepare himself for the sacrament at least three times a year. every friend shall abide by his oath and pledge. every injustice shall be cast out from this land. let us be faithful and true to our lord and promote his honour and carry out his will. and likewise, it is the duty of every lord to treat his men justly. men of every estate shall readily submit to the duty which befits them. every christian man shall learn the creed and the pater noster, the sacred prayer taught by christ to his disciples which contains all the petitions necessary for this life and the life to come. he who does not learn it may not sponsor another man at baptism or at confirmation. *guard against grievous sins and devilish deeds and make amends according to one's confessor's advice. fear god, be in terror of sin, and dread the day of judgment. the bishops shall give example of our duty towards god. secular laws of canute are: all men, both rich and poor, shall be entitled to the benefit of the law, and just decisions shall be pronounced on their behalf. those in authority to give judgment shall consider very earnestly "and forgive us our trespasses as we forgive them that trespass against us." christian people shall not be condemned to death for trivial offenses. we forbid the all too prevalent practice of selling christian people out of the country, especially into heathen lands. care shall be taken that the souls which christ bought with his own life be not destroyed. *any wizards or sorcerers, those who secretly compass death, prostitutes, thieves, and robbers shall be destroyed unless they cease and make amends. we forbid heathen practices, namely the worship of idols, heathen gods, and the sun or moon, fire or water, springs or stones or any kind of forest trees, or indulgence in witchcraft or the compassing of death in any way, either by sacrifice or by divinations or by the practice of any such delusions. *murderers and perjurers, injurers of the clergy, and adulterers shall submit and make amends or depart with their sins from their native land. *hypocrites and liars, robbers and plunderers shall incur the wrath of god, unless they desist and make amends. *there shall be one currency free from all adulteration throughout the land and no one shall refuse it. he who coins false money shall forfeit the hand with which he made it, and he shall not redeem it in any way, either with gold or silver. if the reeve is accused of having granted his permission to the man who coined the false money, he shall clear himself by the triple oath of exculpation and, if it fails, he shall have the same sentence as the man who coined the false money. *measures and weights shall be diligently corrected and an end put to all unjust practices. the repair of fortifications and bridges, and the preparation of ships and the equipment of military forces shall be diligently undertaken for the common need, whenever the occasion arises. *in wessex and mercia, the king is entitled to payments for violation of his mund, attacks on people's houses, assault, and neglecting military service. in the danelaw, he is entitled to payments for fighting, breach of the peace and attacks on people's houses, and neglect of military service. *if anyone does the deed of an outlaw, the king alone shall have power to grant him security. he shall forfeit all his land to the king without regard to whose vassal he is. whoever feeds or harbours the fugitive shall pay 5 pounds to the king, unless he clears himself by a declaration that he did not know that he was a fugitive. *he who promotes injustice or pronounces unjust judgments, as a result of malice or bribery, shall forfeit 120s. to the king, in districts under english law, unless he declares on oath that he did not know how to give a more just verdict, and he shall lose forever his rank as a thegn, unless he redeem it from the king, provided the latter is willing to allow him to do so. in the danelaw he shall forfeit his lahslit. *he who refuses to observe just laws and judgments shall forfeit, in districts under english law, a fine to the party entitled thereto either 120s. to the king, 60s. to the earl, or 30s. to the hundred, or to all of them if they were all concerned. *if a man seeks to accuse another man falsely in such a way as to injure him in property or in reputation, and if the latter can refute the accusation brought against him, the first shall forfeit his tongue, unless he redeems himself with his wergeld. no one shall appeal to the king, unless he fails to obtain justice within his hundred. everyone shall attend the hundred court, under pain of fine, whenever he is required by law to attend it. the borough court shall be held at least three times and the shire court at least twice, under pain of fine. the bishop of the diocese and the earldorman shall attend and they shall direct the administration of both ecclesiastical and secular law. *no one shall make distraint [seizure of personal property out of the possession of an alleged wrongdoer into the custody of the party injured, to procure a satisfaction for a wrong committed] of property either within the shire or outside it, until he has appealed for justice three times in the hundred court. if on the third occasion he does not obtain justice, he shall go on the fourth occasion to the shire court, and the shire court shall appoint a day when he shall issue his summons for the fourth time. and if this summons fails, he shall get leave from the one court or the other, to take his own measures for the recovery of his property. *every freeman over age 12 must be in a tithing if he desires to have the right of exculpation and of being atoned for by the payment of his wergeld, if he is slain, and to be entitled to the rights of a freeman, whether he has an establishment of his own or is in the service of another. everyone shall be brought within a hundred and under surety, and his surety shall hold and bring him to the performance of every legal duty. *everyone over age 12 shall take an oath that he will not be a thief or a thief's accomplice. every trustworthy man, who has never earned a bad reputation and who has never failed either in oath or in ordeal, shall be entitled to clear himself within the hundred by the simple oath of exculpation. for an untrustworthy man compurgators for the simple oath shall be selected within three hundreds, and for the triple oath, throughout the district under the jurisdiction of the borough court; otherwise he shall go to the ordeal. when a simple oath of exculpation is involved, the case shall be begun with a simple oath of accusation; but where a triple oath of exculpation is involved, it shall be begun with a triple oath of accusation. a thegn may have a trustworthy man give his oath of accusation for him. no man may vouch to warranty unless he has three trustworthy witnesses to declare whence he acquired the stock which is attached in his possession. the witnesses shall declare that, in bearing testimony on his behalf to the effect that he acquired it legally, they are speaking the truth, in accordance with what they saw with their eyes and heard with their ears. *no one shall buy anything over 4d. in value, either livestock or other property, unless he has four men as trustworthy witnesses, whether the purchase be made within a town or in the open country. if, however, any property is attached, and he who is in possession of it has no such witnesses, no vouching to warranty shall be allowed, but the property shall be given up to its rightful owner and also the supplementary payment, and the fine to the party who is entitled thereto. and if he has witnesses in accordance with what we have declared above, vouching to warranty shall take place three times. on the fourth occasion he shall prove his claim to it or give it back to its rightful owner. no one shall claim ownership where fraud is involved. *if anyone who is of bad reputation and unworthy of public confidence fails to attend the court meetings three times, men shall be chosen from the fourth meeting who shall ride to him, and he may then still find a surety, if he can. if he cannot, they shall seize him either alive or dead, and they shall take all that he has. and they shall pay to the accuser the value of his goods, and the lord shall take half of what remains and the hundred half. and if anyone, either kinsman or stranger, refuses to ride against him, he shall pay the king 120s. *the proved thief and he who has been discovered in treason against his lord, whatever sanctuary he seeks, shall never be able to save his life. he who in court tries to protect himself or one of his men by bringing a countercharge shall have wasted his words, and shall meet the charge brought by his opponent in such a way as the hundred court shall determine. no one shall entertain any man for more than three days, unless he is committed to this charge by the man whom he has been serving. and no one shall dismiss one of his men from his service until he is quit of every accusation which has been brought against him. *if anyone comes upon a thief and of his own accord lets him escape without raising the hue and cry, he shall make compensation by the payment of the thief's wergeld, or clear himself with the full oath, asserting that he did not know him to be guilty of any crime. and if anyone hears the hue and cry and neglects it, he shall pay the full fine for insubordination [120s] to the king, or clear himself by the full oath. *regarding thoroughly untrustworthy men, if anyone has forfeited the confidence of the hundred, and he has charges brought against him to such an extent that he is accused by three men at once, no other course shall be open to him but to go to the triple ordeal. if, however, his lord asserts that he has failed neither in oath nor in ordeal since the assembly was held at winchester, the lord shall choose two trustworthy men within the hundred unless he has a reeve who is qualified to discharge this duty and they shall swear that he has never failed in oath or ordeal or been convicted of stealing. if the oath is forthcoming, the man who is accused there shall choose whichever he will either the simple ordeal or an oath equivalent to a pound in value, supported by compurgators found within the three hundreds, in the case of an object over 30d. in value. if they dare not give the oath, the accused shall go to the triple ordeal, which shall be opened by five compurgators selected by the accuser and he himself shall make a sixth. if the accused is proved guilty, on the first occasion he shall pay double value to the accuser and his wergeld to the lord who is entitled to receive his fine, and he shall appoint trustworthy sureties, that hence forth he will desist from all wrong-doing. and on the second occasion, if he is proved guilty, there shall be no compensation but to have his hands or his feet cut off or both, according to the nature of the offense. and if has wrought still greater crime, he shall have his eyes put out and his nose and ears and upper lip cut off or his scalp removed, whichever of these penalties is determined by those with whom rests the decision of the case; and thus punishment shall be inflicted, while, at the same time, the soul is preserved from injury. if, however, he escapes and avoids the ordeal, his surety shall pay the value of his goods to the plaintiff and the wergeld of the accused to the king or to the man who is entitled to receive his wergeld. and if the lord is accused of advising the man who had done wrong to escape, he shall choose five trustworthy men, and shall himself make a sixth, and shall clear himself of the accusation. if he succeeds in clearing himself, he shall be entitled to the wergeld. and if he fails, the king shall take the wergeld, and the thief shall be treated as an outlaw by the whole nation. every lord shall be personally responsible as surety for the men of his own household. and if any accusation is brought against one of them, he shall answer if within the hundred in which he is accused. and if he is accused and escapes, the lord shall pay the man's wergeld to the king. and if the lord is accused of advising him to escape, he shall clear himself with the help of five thegns, himself making a sixth. and if he fails to clear himself, he shall pay his own wergeld to the king, and the man shall be an outlaw towards the king. if a slave is found guilty at the ordeal, he shall be branded on the first occasion. and on the second occasion, he shall not be able to make any amends except by his head. *concerning untrustworthy men, if there is anyone who is regarded with suspicion by the general public, the king's reeve shall go and place him under surety so that he a may be brought to do justice to those who have made charges against him. if he has no surety, he shall be slain and buried in unconsecrated ground. and if anyone interposes in his defense, they shall both incur the same punishment. and he who ignores this and will not further what we have all determined upon shall pay 120s. to the king. the various boroughs shall have one common law with regard to exculpation. if a friendless man or one come from afar is so utterly destitute of friends as not to be able to produce a surety, on the first occasion that he is accused he shall go to prison, and wait there until he goes to god's ordeal where he shall experience whatever he can. verily, he who pronounces a more severe judgment upon whom is friendless or come from afar than upon one of his own acquaintances injures himself. *concerning perjury, if anyone swears a false oath on the relics and is convicted, he shall lose his hand or half his wergeld which shall be divided between the lord and the bishop. and henceforth he shall not be entitled to swear an oath, unless he makes amends to the best of his ability before god, and finds surety that ever afterwards he will desist from such perjury. *concerning false witness, if anyone has given testimony which is manifestly false, and is convicted thereof, his testimony henceforth shall be valueless, and he shall pay to the king or to the lord of the manor a sum equivalent to his healsfang [payment due only to those very closely related to a killed man]. special care must be taken to prevent lawlessness at sacred seasons and in sacred places. the greater a man is and the higher his rank, the more stringent shall be the amends which he shall be required to make to god and to men for lawless behavior. and ecclesiastical amends shall be diligently exacted in accordance with the directions contained in the canon law, and secular amends in accordance with secular law. if anyone slays a priest of the altar, he shall be both excommunicated and outlawed, unless he make amends to the best of his ability by pilgrimage, and likewise by the payment of compensation to the kin of the slain man, or else he shall clear himself by an oath equal in value to his wergeld. he shall begin to make amends to god and men within 30 days, under pain of forfeiting all that he possesses. if an attempt is made to deprive a man in orders or a stranger of his goods or his life, the king shall act as his kinsman and protector unless he has some other. and such compensation as is fitting shall be paid to the king, or he shall avenge the deed to the uttermost. if a minister of the altar commits homicide or any other great crime, he shall be deprived of his ecclesiastical office and banished, and shall travel as a pilgrim as far as the pope appoints for him and zealously make amends. if he seeks to clear himself, he shall do so by the triple mode of proof. if he does not begin to make amends both to god and men within 30 days, he shall be outlawed. if anyone binds or beats or deeply insults a man in holy orders, he shall make amends towards him and shall pay the fine due to the bishop for sacrilege, in accordance with the rank of the injured man, and to his lord or to the king the full fine for breach of his mund, or he shall clear himself by the full process of exculpation. if a man in holy orders commits a capital crime, he shall be arrested, and his cases shall be reserved for the bishop's decision. if a condemned man desires confession, he shall never be refused him or pay the king 120s. or he shall clear himself by selecting five men and be himself the sixth. *no condemned man shall be put to death during the sunday festival, unless he flees or fights, but he shall be arrested and kept in custody until the festival is over. if a freeman works during a church festival, he shall make amends by payment of his healsfang and make amends to god according to the directions given him. if as slave works, he shall undergo the lash or pay the fine, according to the nature of the offense. if a lord compels his slave to work during a church festival, he shall lose the slave, who shall then obtain the rights of a freeman and the lord shall pay a fine or clear himself. if a freeman breaks an ordained fast, he shall pay a fine. if a slave does so, he shall undergo the lash or pay the fine in accordance with the nature of the deed. if anyone openly causes a breach of the fast of lent by fighting or by intercourse with women or by robbery or by any great misdeed, he shall pay double compensation just as he must do during a high festival. if he denies the charge, he shall clear himself by the triple process of exculpation. *if anyone refuses by force the payment of ecclesiastical dues, he shall pay the full fine or he shall clear himself: he shall select 11 men and himself make a twelfth. if he wounds anyone, he shall make amends and pay the full fine to the lord and redeem his hands from the bishop or lose them. if he kills a man, he shall be outlawed and pursued with hostility. if he so acts as to bring about his own death by setting himself against the law, no compensation shall be paid for him. if anyone injures one of the clergy, he shall make amends according to the rank of the person injured, either by the payment of his wergeld or a fine or by the forfeiture of all his property. *if anyone commits adultery, he shall make amends according to the nature of the offense. it is wicked adultery for a pious man to commit fornication with an unmarried woman, and much worse with the wife of another man or with any woman who has taken religious vows. *if anyone commits incest, he shall make amends according to the degree of relationship between them, either by the payment of wergeld or of a fine, or by the forfeiture of all his possessions. *if anyone does violence to a widow or maiden, he shall pay his wergeld. *if a woman commits adultery, her husband shall have all she possesses and she shall lose her nose and her ears. if a married man commits adultery with his own slave, he shall lose her and make amends to god and to men. *if anyone has a lawful wife and also a concubine, no priest shall perform for him any of the offices which must be performed for a christian man, until he desists and makes amends as the bishop shall direct. foreigners, if they will not regularize their unions, shall be driven from the land with their possessions, and shall depart in sin. *any murderer shall be given up to the kinsmen of the slain man. the bishop shall pronounce judgment. *if anyone plots against the king or his own lord, he shall forfeit his life and all that he possesses, unless he proves himself innocent by the triple ordeal. *if anyone violates the protection or a king, archbishop or bishop, he shall pay 5, 3, or 2 pounds respectively as compensation. *anyone who fights at the king's court shall lose his life, unless pardoned by the king. *if a man unjustly disarms another, he shall compensate him by the payment of his healsfang. if he binds him, he shall compensate by the payment of half his wergeld. if anyone is guilty of a capital deed of violence while serving in the army, he shall lose his life or his wergeld. *if a man makes forcible entry into another man's house, he shall pay 5 pounds to the king. if he is slain in such a case, no compensation shall be paid for his death. *anyone guilty of robbery shall restore the stolen goods and pay the injured man as much again and forfeit his wergeld to the king. *according to secular law, assaults upon houses, arson, theft which cannot be disproved, murder which cannot be denied, and treachery towards a man's lord are crimes for which no compensation can be paid. if anyone neglects the repair of fortifications or bridges or military service, he shall pay 120s. to the king or he shall clear himself with the support of 11 compurgators out of 14 nominated by the court. the whole nation shall assist in the repair of churches. if anyone unlawfully maintains an excommunicated person, he shall deliver him up in accordance with the law, and pay compensation to him to whom it belongs, and to the king his wergeld. anyone keeping and maintaining as excommunicated man or an outlaw shall risk losing his life and all his property. greater leniency shall be shown in passing judgment and in imposing penance on the weak than on the strong because they cannot bear an equally heavy burden. so we distinguish between age and youth, wealth and poverty, freemen and slaves, the sound and the weak. *when a man is an involuntary agent in evil-doing or does something unintentionally, he is more entitled to clemency. all my reeves shall provide for me from my own property and no man need give them anything as purveyance. if any of my reeves demands a fine, he shall forfeit his wergeld to me. the public has been so far too greatly oppressed by this. *if a man dies intestate [without a will], whether through negligence or sudden death, his lord shall take no more than his legal heriot. the property shall be divided among his wife and children and near kinsmen according to the share which belongs to him. heriots shall be fixed with regard to the rank of the person for whom they are paid. the heriot of any earl is eight horses, four saddled and four unsaddled, four helmets, four coats of chainmail, eight spears, eight shields, four swords, and 200 mancuses of gold. the heriot of a king's thegn is four horses, two saddled and two unsaddled, two swords, four spears, four shields, four helmets, four coats of chain mail and 50 mancuses of gold, but among the danes who possess rights of jurisdiction 4 pounds. the heriot of an ordinary thegn is a horse and its trappings and his weapons or his healsfang in wessex, and in mercia 2 pounds, and in east anglia 2 pounds. the heriot of a man who stands in a more intimate relationship to the king shall be two horses, one saddled and one unsaddled, one sword, two spears, two shields, and 50 mancuses of gold. the heriot of a man who is inferior in wealth is 2 pounds. when a householder has dwelt all his time free from claims and charges, his wife and children shall dwell there unmolested by litigation. *every widow who remains a year without a husband shall do what she herself desires. if within the space of a year, she chooses a husband, she shall lose her morning gift and all the property she had from her first husband, and his nearest relatives shall take the land and property which she had held. and the second husband shall forfeit his wergeld to the king or the lord to whom it has been granted. and although she has been married by force, she shall lose her possessions, unless she leaves the man and returns home. and no widow shall be too hastily consecrated as a nun. and every widow shall pay heriots within a year without incurring a fine, if it has not been convenient for her to pay earlier. *no woman or maiden shall be forced to marry a man whom she dislikes, nor shall she be given for money, except the suitor desires of his own freewill to give something. if anyone sets his spear at the door to another man's house, he himself having an errand inside, or if anyone carefully lays any other weapons where they might remain quietly, and another seizes the weapon and works mischief with it, he shall pay compensation for it. he who owns the weapon may clear himself by asserting that the mischief was done without his desire or authority or advice or cognizance. *if anyone carries stolen goods home to his cottage and is detected, the owner shall have what he has tracked. the wife shall be clear of any charge of complicity unless the goods had been put under her lock and key or in her storeroom, her chest, or her cupboard. but no wife can forbid her husband from depositing anything in his cottage. until now it has been the custom for grasping persons to treat a child which lay in the cradle, even though it had never tasted food, as being guilty as though it were fully intelligent. i forbid this practice. the man who, through cowardice, deserts his lord or his comrades in an expedition, either by sea or by land, shall lose all he possesses and his own life, and the lord shall take back the property and the land which he had given him. and if he has land held by title-deed it shall pass into the king's hands. the heriots of the man who falls before his lord during a campaign, whether within the country or abroad, shall be remitted, and the heirs shall succeed to his land and property and make a very just division of the same. he who, with the cognisance of the shire, has performed the services demanded from a landowner on expedition, either by sea or by land, shall hold his land unmolested by litigation during his life, and at his death shall have the right of disposing of it or giving it to whomsoever he pleases. *every man is entitled to hunt in the woods and fields on his own property. but everyone, under pain of incurring the full penalty, shall avoid hunting on my preserves. there shall never be any interference with bargains successfully concluded or with the legal gifts made by a lord. every man shall be entitled to protection in going to and from assemblies, unless he is a notorious thief. *he who violates the law shall forfeit his wergeld to the king. and he who violates it again, shall pay his wergeld twice over. and if he is so presumptuous as to break it a third time, shall lose all he possesses. love god and follow his law and obey our spiritual leaders, for it is their duty to lead us to the judgment of god according to our works wrought. do what is right and good and guard against the hot fire of hell. god almighty have mercy upon us all, as his will may be. amen. the laws for london were: "1. the gates called aldersgate and cripplegate were in charge of guards. 2. if a small ship came to billingsgate, one halfpenny was paid as toll; if a larger ship with sails, one penny was paid. 1) if a hulk or merchantman arrives and lies there, four pence is paid as toll. 2) from a ship with a cargo of planks, one plank is given as -toll. 3) on three days of the week toll for cloth [is paid] on sunday and tuesday and thursday. 4) a merchant who came to the bridge with a boat containing fish paid one halfpenny as toll, and for a larger ship one penny." 5) 8) foreigners with wine or blubber fish or other goods and their tolls. (foreigners were allowed to buy wool, melted sheep fat [tallow], and three live pigs for their ships.) "3. if the town reeve or the village reeve or any other official accuses anyone of having withheld toll, and the man replies that he has kept back no toll which it was his legal duty to pay, he shall swear to this with six others and shall be quit of the charge. 1) if he declares that he has paid toll, he shall produce the -man to whom he paid it, and shall be quit of the charge. 2) if, however, he cannot produce the man to whom he paid it, he shall pay the actual toll and as much again and five pounds to the king. 3) if he vouches the taxgatherer to warranty [asserting] that he paid toll to him, and the latter denies it, he shall clear himself by the ordeal and by no other means of proof. 4. and we [the king and his counselors] have decreed that a man who, within the town, makes forcible entry into another man's -house without permission and commits a breach of the peace of the worst kind and he who assaults an innocent person on the king's highway, if he is slain, shall lie in an unhonored grave. 1) if, before demanding justice, he has recourse to violence, but does not lose his life thereby, he shall pay five pounds for breach of the king's peace. 2) if he values the goodwill of the town itself, he shall pay us thirty shillings as compensation, if the king will grant us -this concession." 5. no base coin or coin defective in quality or weight, foreign or english, may be used by a foreigner or an englishman. (in 956, a person found guilty of illicit coining was punished by loss of a hand.) judicial procedure there were courts for different geographical communities: shires, hundreds, and vills. the arrangement of the whole kingdom into shires was completed by 975 after being united under king edgar. a shire was a large area of land, headed by an earl. a shire reeve or "sheriff" represented the royal interests in the shires and in the shire courts. this officer came to be selected by the king and earl of the shire to be a judicial and financial deputy of the earl and to execute the law. the office of sheriff, which was not hereditary, was also responsible for the administration of royal lands and royal accounts. the sheriff summoned the freemen holding land in the shire, four men selected by each community or township, and all public officers to meet twice a year at their "shiremotes". actually only the great lords the bishops, earls, and thegns attended. the shire court was primarily concerned with issues of the larger landholders. here the freemen interpreted the customary law of the locality. the earl declared the secular law and the bishop declared the spiritual law. they also declared the sentence of the judges. the earl usually took a third of the profits, such as fines and forfeits, of the shire court, and the bishop took a share. in time, the earls each came to supervise several shires and the sheriff became head of the shire and assumed the earl's duties there, such as heading the shire fyrd. the shire court also heard cases which had been refused justice at the hundredmote and cases of keeping the peace of the shire. the hundred was a division of the shire, having come to refer to a geographical area rather than a number of households. the monthly hundredmote could be attended by any freeman holding land (or a lord's steward), but was usually attended only by reeve, thegns, parish priest, and four representatives selected by each agrarian community or village usually villeins. here transfers of land were witnessed. the sheriff, or a reeve in his place, presided over minor local criminal and peace and order issues. when the jurisdiction was in the hands of a sheriff, it was called the sheriff's tourn. all residents were expected to attend this court. when the jurisdiction was in private hands, it was called a leet court. leet jurisdiction derived from sac and soke jurisdiction. sac and soc jurisdiction was possession of legal powers of execution and profits of justice held by a noble or institution over inhabitants and tenants of the estate, exercised through a private court. the sheriff usually held each hundred court, which heard civil cases. the suitors to these courts were the same as those of the shire courts. they were the judges who declared the law and ordered the form of proof, such as compurgatory oath and ordeal. they were customarily thegns, often twelve in number. they, as well as the king and the earl, received part of the profits of justice. summary procedure was followed when a criminal was caught in the act or seized after a hue and cry. every freeman over age twelve had to be in a hundred and had to follow the hue and cry. in 997, king ethelred in a law code ordered the sheriff and twelve leading magnates of each shire to swear to accuse no innocent man, nor conceal any guilty one. this was the germ of the later assize, and later still the jury. the integrity of the judicial system was protected by certain penalties: for swearing a false oath, bot as determined by a cleric who has heard his confession, or, if he has not confessed, denial of burial in consecrated ground. also a perjurer lost his oath-worthiness. swearing a false oath or perjury was also punishable by loss of one's hand or half one's wergeld. a lord denying justice, as by upholding an evildoing thegn of his, had to pay 120s. to the king for his disobedience. furthermore, if a lord protected a theow of his who had stolen, he had to forfeit the theow and pay his wer, for the first offense, and he was liable for all he property, for subsequent offenses. there was a bot for anyone harboring a convicted offender. if anyone failed to attend the gemot thrice after being summoned, he was to pay the king a fine for his disobedience. if he did not pay this fine or do right, the chief men of the burh were to ride to him, and take all his property to put into surety. if he did not know of a person who would be his surety, he was to be imprisoned. failing that, he was to be killed. but if he escaped, anyone who harbored him, knowing him to be a fugitive, would be liable pay his wer. anyone who avenged a thief without wounding anyone, had to pay the king 120s. as wite for the assault. "and if anyone is so rich or belongs to so powerful a kindred, that he cannot be restrained from crime or from protecting and harboring criminals, he shall be led out of his native district with his wife and children, and all his goods, to any part of the kingdom which the king chooses, be he noble or commoner, whoever he may be with the provision that he shall never return to his native district. and henceforth, let him never be encountered by anyone in that district; otherwise he shall be treated as a thief caught in the act." courts controlled by lords of large private estates had various kinds of jurisdiction recognized by the king: sac and soke [possession of legal powers of execution and profits of justice held by a noble or institution over inhabitants and tenants of the estate, exercised through a private court], toll [right to collect a payment on the sale of cattle and property] and team [right to hold a court to determine the honesty of a man accused of illegal possession of cattle], infangenetheof [the authority to judge and to hang and take the chattels of a thief caught on the property], and utfangenetheof [the authority to judge, punish, and take the chattels of a thief dwelling out of his liberty, and committing theft without the same, if he were caught within the lord's property]. some lords were even given jurisdiction over breach of the royal peace, ambush and treacherous manslaughter, harboring of outlaws, forced entry into a residence, and failure to answer a military summons. often this court's jurisdiction overlapped that of the hundred court and sometimes a whole hundred had passed under the jurisdiction of an abbot, bishop, or earl. a lord and his noble lady, or his steward, presided at this court. the law was administered here on the same principles as at the hundred court. judges of the leet [minor criminal jurisdiction] of the court of a large private estate were chosen from the constables and four representatives selected from each community, village, or town. the vill [similar to village] was the smallest community for judicial purposes. there were several vills in a hundred. before a dispute went to the hundred court, it might be taken care of by the head tithing man, e.g. cases between vills, between neighbors, and some compensations and settlements, namely concerning pastures, meadows, harvests, and contests between neighbors. in london, the hustings court met weekly and decided such issues as wills and bequests and commerce matters. the folkmote of all citizens met three times a year. each ward had a leet court. the king and his witan decided the complaints and issues of the nobility and those cases which had not received justice in the hundred or shire court. the witan had a criminal jurisdiction and could imprison or outlaw a person. the witan could even compel the king to return any land he might have unjustly taken. especially punishable by the king was "oferhyrnesse": contempt of the king's law. it covered refusal of justice, neglect of summons to gemot or pursuit of thieves, disobedience to the king's officers, sounding the king's coin, accepting another man's dependent without his leave, buying outside markets, and refusing to pay peter's pence. the forests were peculiarly subject to the absolute will of the king. they were outside the common law. their unique customs and laws protected the peace of the animals rather than the king's subjects. only special officials on special commissions heard their cases. the form of oaths for compurgation were specified for theft of cattle, unsoundness of property bought, and money owed for a sale. the defendant denied the accusation by sweating that "by the lord, i am guiltless, both in deed and counsel, and of the charge of which ... accuses me." a compurgator swore that "by the lord, the oath is clean and unperjured which ... has sworn.". a witness swore that "in the name of almighty god, as i here for ... in true witness stand, unbidden and unbought, so i with my eyes oversaw, and with my ears overheard, that which i with him say." if a theow man was guilty at the ordeal, he was not only to give compensation, but was to be scourged thrice, or a second geld [compensation] be given; and be the wite of half value for theows. this lawsuit between a son and his mother over land was heard at a shire meeting: "here it is declared in this document that a shire meeting sat at aylton in king cnut's time. there were present bishop aethelstan and earl ranig and edwin, the earl's son, and leofwine, wulfsige's son, and thurkil the white; and tofi the proud came there on the king's business, and bryning the sheriff was present, and aethelweard of frome and leofwine of frome and godric of stoke and all the thegns of herefordshire. then edwin, enneawnes son, came traveling to the meeting and sued his own mother for a certain piece of land, namely wellington and cradley. then the bishop asked whose business it was to answer for his mother, and thurkil the white replied that it was his business to do so, if he knew the claim. as he did not know the claim, three thegns were chosen from the meeting [to ride] to the place where she was, namely at fawley, and these were leofwine of frome and aethelsige the red and winsige the seaman, and when they came to her they asked her what claim she had to the lands for which her son was suing her. then she said that she had no land that in any way belonged to him, and was strongly incensed against her son, and summoned to her kinswoman, leofflaed, thurkil's wife, and in front of them said to her as follows: 'here sits leofflaed, my kinswoman, to whom, after my death, i grant my land and my gold, my clothing and my raiment and all that i possess.' and then she said to the thegns: 'act like thegns, and duly announce my message to the meeting before all the worthy men, and tell them to whom i have granted my land and all my property, and not a thing to my own son, and ask them to be witnesses of this.' and they did so; they rode to the meeting and informed all the worthy men of the charge that she had laid upon them. then thurkil the white stood up in the meeting and asked all the thegns to give his wife the lands unreservedly which her kinswoman had granted her, and they did so. then thurkil rode to st. aethelbert's minister, with the consent and cognizance of the whole assembly, and had it recorded in a gospel book." chapter 4 the times: 1066-1100 william came from normandy, france, to conquer england. he claimed that the former king, edward, the confessor, had promised the throne to him when they were growing up together in normandy, if edward became king of england and had no children. the conquerer's men and horses came in boats powered by oars and sails. the conquest did not take long because of the superiority of his military expertise to that of the english. he organized his army into three groups: archers with bows and arrows, horsemen with swords and stirrups, and footmen with hand weapons. each group played a specific role in a strategy planned in advance. the english army was only composed of footmen with hand weapons such as spears and shields. they fought in a line holding up their shields to overlap each other and form a shieldwall. the defeat of the english was thought to have been presaged by a comet. at westminster, he made an oath to defend god's holy churches and their rulers, to rule the whole people subject to him with righteousness and royal providence, to enact and hold fast right law, and to utterly forbid rapine and unrighteous judgments. this was in keeping with the traditional oath of a new king. declaring the english who fought against him to be traitors, the conquerer declared their land confiscated. but he allowed those who were willing to acknowledge him to redeem their land by a payment of money. as william conquered the land of the realm, he parceled it out among the barons who fought with him so that each baron was given the holdings of an anglo-saxon predecessor, scattered though they were. the barons again made oaths of personal loyalty to him [fealty]. they agreed to hold the land as his vassals with future military services to him and receipt of his protection. they gave him homage by folding their hands within his and saying "i become your man for the tenement i hold of you, and i will bear you faith in life and member [limb] and earthly honor against all men". they held their land "of their lord", the king, by knight's service. the king had "enfeoffed" them [given them a fief: a source of income] with land. the theory that by right all land was the king's and that land was held by others only at his gift and in return for specified service was new to english thought. the original duration of a knight's fee until about 1100 was for his life; thereafter it was heritable. the word "knight" came to replace the word "thegn" as a person who received his position and land by fighting for the king. the exact obligation of knight's service was to furnish a fully armed horseman to serve at his own expense for forty days in the year. this service was not limited to defense of the country, but included fighting abroad. the baron led his own knights under his banner. the foot soldiers were from the fyrd or were mercenaries. every free man was sworn to join in the defense of the king, his lands and his honor, within england and without. the saxon governing class was destroyed. the independent power of earls, who had been drawn from three great family houses, was curtailed. most died or fled the country. some men were allowed to redeem their land by money payment if they showed loyalty to the conquerer. well-born women crowded into nunneries to escape norman violence. the people were deprived of their most popular leaders, who were excluded from all positions of trust and profit, especially all the clergy. the earldoms became fiefs instead of magistracies. the conquerer was a stern and fierce man and ruled as an autocrat by terror. whenever the people revolted or resisted his mandates, he seized their lands or destroyed the crops and laid waste the countryside and so that they starved to death. this example pacified others. his rule was strong, resolute, wise, and wary. he was not arbitrary or oppressive. the conquerer had a strict system of policing the nation. instead of the anglo-saxon self-government throughout the districts and hundreds of resident authorities in local courts, he aimed at substituting for it the absolute rule of the barons under military rule so favorable to the centralizing power of the crown. he used secret police and spies and the terrorism this system involved. this especially curbed the minor barons and preserved the public peace. the english people, who outnumbered the normans by 300 to 1, were disarmed. curfew bells were rung at 7:00 pm when everyone had to remain in their own dwellings on pain of death and all fires and candles were to be put out. this prevented any nightly gatherings, assassinations, or seditions. order was brought to the kingdom so that no man dare kill another, no matter how great the injury he had received. the conquerer extended the king's peace on the highways, i.e. roads on high ground, to include the whole nation. any individual of any rank could travel from end to end of the land unharmed. before, prudent travelers would travel only in groups of twenty. the barons subjugated the english who were on their newly acquired land. there began a hierarchy of seisin of land so that there could be no land without its lord. also, every lord had a superior lord with the king as the overlord or supreme landlord. one piece of land may be held by several tenures. for instance, a, holding by barons' service of the king, may enfeoff b, a church, to hold of him on the terms of praying for the souls of his ancestors, and b may enfeoff a freeman c to hold of the church by giving it a certain percentage of his crops every year. there were about 200 barons who held land directly of the king. other fighting men were the knights, who were tenants or subtenants of a baron. knighthood began as a reward for valor on the field of battle by the king or a noble. the value of a knight's fee was 400s. [20 pounds] per year. altogether there were about 5000 fighting men holding land. the essence of norman feudalism was that the land remained under the lord, whatever the vassal might do. the lord had the duty to defend the vassals on his land. the vassal owed military service to the lord and also the service of attending the courts of the hundred and the county [formerly "shire"], which were courts of the king, administering old customary law. they were the king's courts on the principle that a crime anywhere was a breach of the king's peace. the king's peace that had covered his residence and household had extended to places where he might travel, such as highways, rivers, bridges, churches, monasteries, markets, and towns, and then encompassed every place, replacing the general public peace. infraction of the king's peace incurred fines to the king. this feudal bond based on occupancy of land rather than on personal ties was uniform throughout the realm. no longer could a man choose his lord and transfer his land with him to a new lord. he held his land at the will of his lord, to be terminated anytime the lord decided to do so. a tenant could not alienate his land without permission of his lord. in later eras, tenancies would be held for the life of the tenant, and even later, for his life and those of his heirs. this uniformity of land organization plus the new requirement that every freeman take an oath of loyalty directly to the king to assist him in preserving his lands and honor and defending him against his enemies, which oath would supersede any oath to any other man, gave the nation a new unity. the king could call men directly to the fyrd, summon them to his court, and tax them without intervention of their lords. and the people learned to look to the king for protection from abuse by their lords. english villani, bordarii, cottarii, and servi on the land of the barons were subjugated into a condition of "villeinage" servitude and became "tied to the land" so that they could not leave the land without their lord's permission, except to go on a pilgrimage. the villeins formed a new bottom class as the population's percentage of slaves declined dramatically. they held their land of their lord, the baron. to guard against uprisings of the conquered people, the barons used villein labor to build about a hundred great stone castles, with moats and walls with towers around them, at easily defensible positions such as hilltops all over the nation. a castle could be built only with permission of the king. a typical castle had a stone building of about four floors [a keep] on a small, steep hill. later it also had an open area surrounded by a stone curtain-wall with towers at the corners. around the outside of the wall were ditches and banks and perhaps a moat. one traveled over these via a drawbridge let down at the gatehouse of the enclosing wall. on either side of the gatehouse were chambers for the guards. arrows could be shot through slits in the enclosing walls. inside the enclosed area might be stables, a granary, barracks for the soldiers, and workshops. the only winter feed was hay, for which the horses, breeding animals, milkcow, and workoxen had a priority over other animals. the bulk of the cattle were usually slaughtered and salted. the castle building typically was entered by an outer wood staircase to the guard room on the second floor. the first [ground] floor had a well and was used as a storehouse and/or dungeons for prisoners. the second floor had a two-storied great hall, with small rooms and aisles around it within the thick walls. there was also a chapel area on the second floor. there were small areas of the third floor which could be used for sleeping. the floors were wood and were reached by a spiral stone staircase in one corner of the building. sometimes there was a reservoir of water on an upper level with pipes carrying the water to floors below. each floor had a fireplace with a slanted flue going through the wall to the outside. there were latrines in the corner walls with a pit or shaft down the exterior of the wall, sometimes to the moat. furs and wool clothes were hung on the walls there in the summer to deter the moths. the first floor had only arrow slits in the walls, but the higher floors had small windows. some curtain-wall castles did not have a central building. in these, the hall was built along the inside of the walls, as were other continuous buildings. the kitchens and chapels were in the towers. lodgings were in buildings along the curtain-walls, or on several floors of the towers. the great hall was the main room of the castle. the hall was used for meals and meetings at which the lord received homages, recovered fees, and held the view of frankpledge [free pledge in latin], in which freemen agreed to be sureties for each other and pay a claim directed at one of them if that man escaped. at the main table, the lord and his lady sat on benches with backs or chairs. the table was covered first with a wool cloth that reached to the floor, and then by a smaller white linen cloth. everyone else sat on benches at trestle tables, which consisted of planks on trestles and could be dismantled, e.g. at night. over the main door were the family arms. on the walls were swords ready for instant use. on the upper parts of the walls could be fox skins and perhaps a polecat skin, and keepers' and huntsmen's poles. there were often hawk perches overhead. at the midday dinner, courses were ceremonially brought in to music, and ritual bows were made to the lord. the food at the head table was often tasted first by a servant as a precaution against poison. hounds, spaniels, and terriers lay near the hearth and cats, often with litters, nestled nearby. they might share in dinner, but the lord may keep a short stick near him to defend morsels he meant for himself. hunting, dove cotes, and carp pools provided fresh meat. fish was compulsory eating on fridays, on fast days, and during lent. cooking was done outside on an open fire, roasting on spits and boiling in pots. some spits were mechanized with a cogged wheel and a weight at the end of a string. other spits were turned by a long handle, or a small boy shielded from the heat by a wet blanket, or by dogs on a treadmill. underneath the spit was a dripping pan to hold the falling juices and fat. mutton fat was used for candles. bread, pies, and pastry dishes were baked in an oven: a hole in a fireproof stone wall fitted with an iron door, in which wood was first burnt to heat the oven walls. it could also be used for drying fruit or melting tallow. fruits were also preserved in honey. salt was stored in a niche in the wall near the hearth and put on the table in a salt cellar which became more elaborate over the years. salt was very valuable and gave rise to the praise of a man as the salt of the earth. costly imported spices such as cinnamon, cloves, nutmeg, ginger, pepper, and a small quantity of sugar were kept in chests. pepper was always on the table to disguise the taste of tainted meat. spices were tried for medicinal use. drinks included wine, ale, cider from apples, perry from pears, and mead. people carried and used their own knives. there were no forks. spoons were of silver or wood. people also ate with their fingers and washed their hands before and after meals. it was impolite to dig into the salt bowl with a knife not previously wiped on bread or napkin, which was linen. it was unmannerly to wipe one's knife or one's greasy fingers on the tablecloth or, to use the tablecloth to blow one's nose. feasts were stately occasions with costly tables and splendid apparel. there were practical jokes, innocent frolics, and witty verbal debating with repartee. they played chess, checkers, and various games with cards and dice. most people could sing and some could play the lute. lighting of the hall at night was by oil lamps or candles on stands or on wall fixtures. for outside activities, a lantern [a candle shielded by a metal cage with panels of finely shaved horn: lant horn] was used. the residence of the lord's family and guests was at a screened off area at the extreme end of the hall or on a higher floor. chests stored garments and jewels. iron keys and locks were used for chests and doors. the great bed had a wooden frame and springs made of interlaced rope or strips of leather. it was covered with a feather mattress, sheets, quilts, fur covers, and pillows. drapery around the bed kept out cold drafts and provided privacy. there was a water bowl for washing in the morning. a chamber pot was kept under the bed for nighttime use. hay was used as toilet paper. the lord's personal servants slept nearby on benches or trundle beds. most of the gentlemen servants slept communally in a "knight's chamber". the floor of the hall was strewn with straw, on which common folk could sleep at night. there were stools on which to sit. cup boards (boards on which to store cups) and chests stored spices and plate. one-piece iron shears were available to cut cloth. handheld spindles were used for weaving; one hand held the spindle [a small stick weighted at one end] while the other hand alternately formed the thread and wound it around the spindle. on the roofs there were rampart walks for sentry patrols and parapets from which to shoot arrows or throw things at besiegers. each tenant of the demesne [household or messuage] of the king where he had a castle had to perform a certain amount of castle guard duty for its continuing defense. these knights performing castle-guard duty slept at their posts. bathing was done in a wooden tub located in the garden in the summer and indoors near the fire in winter. the great bed and tub for bathing were taken on trips with the lord. the entire household was of men, except for the lord's lady with a few lady companions. the ladies rode pillion [on a cushion behind the saddle] or in litters suspended between two horses. markets grew up outside castle walls. any trade on a lord's land was subject to "passage", a payment on goods passing through, "stallage", a payment for setting up a stall or booth in a market, and "pontage", a payment for taking goods across a bridge. the norman man was clean shaven on his face and around his ears and at the nape of the neck. his hair was short. he wore a longsleeved under-tunic of linen or wool that reached to his ankles. over this the norman noble wore a tunic without sleeves, open at the sides, and fastened with a belt. over one shoulder was his cloak, which was fastened on the opposite shoulder by being drawn through a ring brooch and knotted. he wore tight thick cloth stockings to protect him from the mud and leather shoes. common men wore durable, but drab, wool tunics to the knee so as not to impede them in their work. they could roll up their stockings when working in the fields. a lady wore a high-necked, longsleeved linen or wool tunic fitted at the waist and laced at the side, but full in the skirt, which reached to her toes. she wore a jeweled belt, passed twice around her waist and knotted in front. her hair was often in two long braids, and her head and ears covered with a white round cloth held in place by a metal circlet like a small crown. its ends were wound around her neck. in winter, she wore over her tunic a cloak edged or lined with fur and fastened at the front with a cord. clothes of both men and ladies were brightly colored by dyes or embroidery. the norman knight wore an over-tunic of leather or heavy linen on which were sewn flat rings of iron and a conical iron helmet with nose cover. he wore a sword at his waist and a metal shield on his back, or he wore his sword and his accompanying retainers carried spear and shield. norman customs were adopted by the nation. as a whole, anglo-saxon men shaved their beards and whiskers from their faces, but they kept their custom of long hair flowing from their heads. but a few kept their whiskers and beards in protest of the normans. everyone had a permanent surname indicating parentage, place of birth, or residence, such as field, pitt, lane, bridge, ford, stone, burn, church, hill, brook, green. other names came from occupations such as shepherd, carter, parker, fowler, hunter, forester, smith. still other came from personal characteristics such as black, brown, and white, short, round, and long. some took their names from animals such as wolf, fox, lamb, bull, hogg, sparrow, crow, and swan. others were called after the men they served, such as king, bishop, abbot, prior, knight. a man's surname was passed on to his son. those few coerls whose land was not taken by a baron remained free and held their land "in socage" and became known as sokemen. they were not fighting men, and did not give homage, but might give fealty, i.e. fidelity. many free sokemen were caught up in the subjugation by baron landlords and were reduced almost to the condition of the unfree villein. the services they performed for their lords were often indistinguishable. they might also hold their land by villein tenure, although free as a person with the legal rights of a freeman. the freeman still had a place in court proceedings which the unfree villein did not. great stone cathedrals were built in fortified towns for the conquerer's norman bishops, who replaced the english bishops. bishops periodically inspected the parishes in their dioceses to maintain discipline aqnd settle any matters that were beyond the local priest's competence, for instance the sacrament of confirmation, in which was conferred upon a christian soul a special strengthening grace after he confirmed his belief in the tenets of christianity. most of the existing and new monasteries functioned as training grounds for scholars, bishops, and statesmen rather than as retreats from the world's problems to the security of religious observance. the number of monks grew as the best minds were recruited into the monasteries. the conquerer made the church subordinate to him. bishops were elected only subject to the king's consent. the bishops had to accept the status of barons. homage was exacted from them before they were consecrated, and fealty and an oath afterward. the conquerer imposed knight's service on bishoprics, abbeys, and monasteries, which was usually commuted to a monetary amount. bishops had to attend the king's court. bishops could not leave the realm without the king's consent. no royal tenant or royal servant could be excommunicated, nor his lands be placed under interdict, without the king's consent. interdict could demand, for instance, that the church be closed and the dead buried in unconsecrated ground. no church rules could be made without his agreement to their terms. no letters from the pope could be received without the king's permission. the archbishop of canterbury was still recognized as a primary advisor to the king. over the years, the selection for this office frequently became a source of contention among king, pope, and clergy. men continued to give land to the church for their souls, such as this grant which started the town of sandwich: "william, king of the english, to lanfranc the archbishop and hugoni de montfort and richard son of earl gilbert and haimo the sheriff and all the thegns of kent, french and english, greeting. know ye that the bishop of bayeux my brother for the love of god and for the salvation of my soul and his own, has given to st. trinity all houses with their appurtenances which he has at sandwich and that he has given what he has given by my license." many private owners of churches gave them to cathedrals or monastic communities, partly to ensure their long term survival, and partly because of church pressure. when the land was all divided out, the barons had about 3/7 of it and the church about 2/7. most of the barons had been royal servants. the king retained about 2/7, including forests for hunting, for himself and his family and household, on which he built many royal castles and hundreds of manor [large private estate headed by a lord] houses throughout the nation. he built the massive white tower in london. it was tall with four turrets on top, and commanded a view of the river and bridge, the city and the surrounding countryside. the only windows were slits from which arrows could be shot. on the fourth and top floor was the council chamber and the gallery of the chapel. on the third floor was the banqueting hall, the sword room, and the chapel. the king and his household slept in apartments on these upper floors. stairs went up to the gateway entrance on the second floor, which were hidden by a wall. the garrison's barracks were on the first floor (ground floor). any prisoners were kept in cells at a level below the first floor. the other castles were often built at the old fortification burhs of alfred. each had a constable in charge, who was a baron. barons and earls had castle-guard duty in the king's castles. the conquerer was constantly moving about the land among his and his barons' castles, where he met with his magnates and conducted public business, such as deciding disputes about holding of land. near his own castles and other of his property, he designated many areas as royal hunting forests. anyone who killed a deer in these forests was mutilated, for instance by blinding. people living within the boundaries of the designated forestland could no longer go into nearby woods to get meat or honey, dead wood for firing, or live wood for building. swineherds could no longer drive pigs into these woods to eat acorns they beat down from oak trees. making clearings and grazing livestock in the designated forestland were prohibited. most of the nation was either wooded or bog at this time. london was a walled town of one and two story houses made of mud, twigs, and straw, with thatched roofs. it included a bundle of communities, townships, parishes, and lordships. there were churches, a goods market, a fish market, quays on the river, and a bridge over the river. streets probably named by this time include bread street, milk street, honey lane, wood street, and ironmonger lane. fairs and games were held outside the town walls in a field called "smithfield". the great citizens had the land qualifications of knights and ranked as barons on the conquerer's council. the freemen were a small percentage of london's population. there was a butchers' guild, a pepperers' guild, a goldsmiths' guild, the guild of st. lazarus, which was probably a leper charity (of which there were many in the 1000s and 1100s), the pilgrims' guild, which helped people going on pilgrimages, and four bridge guilds, probably for keeping the wooden london bridge in repair. men told the time by sundials, some of which were portable and could be carried in one's pocket. london could defend itself, and a ringing of the bell of st. paul's church could shut every shop and fill the streets with armed horsemen and soldiers led by a soldier portreeve. across the thames from london on its south side was southwark, a small trading and fishing settlement. the conquerer did not interfere with landholding in london, but recognized its independence as a borough in this writ: "william the king greets william, bishop of london, and gosfrith the portreeve, and all the burgesses [citizens] of london friendly. know that i will that you be worthy of all the laws you were worthy of in the time of king edward. and i will that every child shall be his father's heir after his father's day. and i will not suffer any man to do you wrong. god preserve you." so london was not subjected to the norman feudal system. it had neither villeins nor slaves. whenever kings asserted authority over it, the citizens reacted until the king "granted" a charter reaffirming the freedoms of the city and its independence. under pressure from the ecclesiastical judges, the conquerer replaced the death penalty by that of the mutilation of blinding, chopping off hands, and castrating offenders. castration was the punishment for rape. but these mutilations usually led to a slow death by gangrene. the normans used the anglo-saxon concepts of jurisdictional powers. thus when the conquerer confirmed "customs" to the abbot of ely, these were understood to include the following: 1) sac and soke the right to hold a court of private jurisdiction and enjoy its profits, 2) toll a payment in towns, markets, and fairs for goods and chattel bought and sold, 3) team persons might be vouched to warranty in the court, the grant of which made a court capable of hearing suits arising from the transfer of land, 4) infangenthef right of trying and executing thieves on one's land, 4) hamsocne [jurisdiction over breach of the right of security and privacy in a man's house, e.g. by forcible entry], 5) grithbrice violation of the grantees' special peace, for instance that of the sheriff, 6) fightwite fine for a general breach of the peace, 7) fyrdwite fine for failure to appear in the fyrd. every shire, now called "county", had at least one burh, or defensible town. kings had appointed a royal moneyer in each burh to mint silver coins such as pennies for local use. on one side was the king's head in profile and on the other side was the name of the moneyer. when a new coinage was issued, all moneyers had to go to london to get the new dies. the conquerer's head faced frontally on his dies, instead of the usual profile used by former kings. the conquerer held and presided over his council three times a year, as was the custom, at easter, christmas, and whitsuntide, which coincided with the great christian festivals. this was an advisory council and consisted of the conquerer's wife and sons, earls, barons, knights, officers of the king's household, archbishops, and bishops. it replaced the witan of wise men. it dealt with fundamental matters of law, state, war, and church. earldoms and knighthoods were conferred and homages to the king were witnessed. bishops were nominated. attendance at the council, like attendance at courts, was regarded as a burden rather than a privilege. the conquerer's will was the motive force which under lay all the council's action. when it was administering royal justice, it was called the royal court. the justiciar was the head of all legal matters and he or the conquerer's wife represented the king at the royal court in his absence from the realm. the chamberlain was a financial officer of the household; his work was rather that of auditor or accountant. the chancellor headed the chancery and the chapel. other household offices were steward, butler, constable, and marshall. the treasurer was responsible for the collection and distribution of revenue and was the keeper of the royal treasure at the palace at winchester. he was also an important member of the household and sat in the exchequer at westminster, where he received the accounts of the sheriffs. the exchequer was composed of the justiciar as head, the chancellor, the constable, two chamberlains, the marshall and other experienced councilors. the word "exchequer" came from the chequered cloth on the table used to calculate in roman numerals the amount due and the amount paid. the word "calculate" derives from the word "calculi", meaning pebbles. it was a kind of abacus. the exchequer received yearly from the sheriffs of the counties taxes, fines, treasure trove, goods from wrecks, deodands, and movable property of felons, of persons executed, of fugitives, and of outlaws due to the crown. the conqueror presided yearly over feasts involving several thousand guests at westminster hall, which was 250 feet by 70 feet with a high ceiling, the largest hall in england. the conquerer's reign was a time of tentative expedients and simple solutions. he administered by issuing writs with commands or prohibitions. these were read aloud by the sheriffs in the county courts and other locations. administration was by the personal servants of his royal household, such as the chancellor, chamberlain, constable, marshals, steward, and butler. the language of government changed to latin. the chancellor was from the clergy and supervised the writers and clerks, who were literate, and appended the great seal before witnesses to documents. he also headed the staff of the royal chapel. the chamberlain was a financial officer who audited and accounted. the constable was responsible for supplies for the knights of the royal household. he also supervised the care of horses, hounds, hawks, and huntsmen, houndsmen, and foresters. the marshals came from less important families than the constable and they preserved order in the king's hall and recorded expenditures of the household officers on tallies. the steward was a great baron whose duties were chiefly ceremonial, such as placing the dishes before the king at banquets. sheriffs, who had first been head of shires, became powerful figures as the primary agents for enforcing royal edicts. there was no longer supervision of them by earls nor influence on them by bishops. they were customarily prominent barons. they collected the royal taxes, executed royal justice, and presided over and controlled the hundred and county courts. they were responsible for remitting a certain sum annually. if a sheriff received more than necessary, he retained the difference as his lawful profit of office. if he received less than necessary, he had to make up the difference from his own pocket. before rendering this account, he paid the royal benefactions to religious houses, provided for the maintenance of stock on crown lands, paid for the costs of provisions supplied to the court, and paid for traveling expenses of the king and his visitors. the payments were initially paid in kind: e.g. grain, cattle, horses, hounds, and hawks. sheriffs also took part in the keeping of castles and often managed the estates of the king. most royal writs were addressed to the sheriff and county courts. they also led the county militia in time of war or rebellion. at times, a sheriff usurped royal rights, used royal estates for his own purposes, encroached on private land and rights, extorted money, and collected revenues only for his own pockets. over the centuries, there was much competition for the authority to select the sheriff, e.g. by the king, the county court, the barons, and the exchequer. there was also much pressure to limit his term to one year. over time, the powers of the sheriffs slowly declined. royal income came from customary dues, profits of coinage and of justice, and revenues from the king's own estates. for war, there was no change in the custom that a man with five hides of land was required to furnish one heavy armed horseman for forty days service in a year. the fyrd was retained. a threat of a viking invasion caused the conquerer to reinstate the danegeld tax at 6s. per hide, which was three times its old rate. (the price of an ox was still about 30d.) to impose this tax uniformly, he sent commissioners to conduct surveys by sworn verdicts of appointed groups of local men. a detailed survey of land holdings and the productive worth of each was made in 1086. the english called it the "doomsday book" because there was no appeal from it. the survey revealed, for instance, that one estate had "on the home farm five plough teams: there are also 25 villeins and 6 cotters with 14 teams among them. there is a mill worth 2s. a year and one fishery, a church and four acres of meadow, wood for 150 pigs and two stone quarries, each worth 2s. a year, and two nests of hawks in the wood and 10 slaves." this estate was deemed to be worth 480s. a year. laxton "had 2 carucates of land [assessed] to the geld. [there is] land for 6 ploughs. there walter, a man of [the lord] geoffrey alselin's has 1 plough and 22 villeins and 7 bordars [a bordar had a cottage and a small amount land in return for supplying small provisions to his lord] having 5 ploughs and 5 serfs and 1 female serf and 40 acres of meadow. wood [land] for pannage [foraging by pigs] 1 league in length and half a league in breadth. in king edward's time it was worth 9 pounds; now [it is worth] 6 pounds." ilbert de laci has now this land, where he has twelve ploughs in the demesne; and forty-eight villani, and twelve bordars with fifteen ploughs, and three churches and three priests, and three mills of ten shillings. wood pastures two miles long, and one broad. the whole manor five miles long and two broad. value in king edward's time sixteen pounds, the same now. that manor of the town of coventry which was individually held was that of the countess of coventry, who was the wife of the earl of mercia. "the countess held in coventry. there are 5 hides. the arable land employs 20 ploughs. in the demesne lands there are 3 ploughs and 7 bondmen. there are 50 villeins and 12 bordars with 20 ploughs. the mill there pay[s] 3 shillings. the woodlands are 2 miles long and the same broad. in king edward's time and afterwards, it was worth 22 pounds [440 s.], now only 11 pounds by weight. these lands of the countess godiva nicholas holds to farm of the king." the survey shows a few manors and monasteries owned a salthouse or saltpit in the local saltworks, from which they were entitled to obtain salt. in total there were about 110,000 villani [former coerls regarded as customary, irremovable cultivator tenants]; 82,000 bordarii; 7,000 cotarii and cotseti [held land by service of labor or rent paid in produce], and 25,000 servi [landless laborers]. there are no more theows. this survey resulted in the first national tax system of about 6s. per hide of land. the survey also provided the conquerer with a summary of customs of areas. for instance, in oxfordshire, "anyone breaking the king's peace given under his hand and seal to the extent of committing homicide shall be at the king's mercy in respect of his life and members. that is if he be captured. and if he cannot be captured, he shall be considered as an outlaw, and anyone who kills him shall have all his possessions. the king shall take the possessions of any stranger who has elected to live in oxford and who dies in possession of a house in that town, and without any kinfolk. the king shall be entitled to the body and the possessions of any man who kills another within his own court or house excepting always the dower of his wife, if he has a wife who has received dower. the courts of the king and barons became schools of chivalry wherein seven year old noble boys became pages or valets, wore a dagger and waited upon the ladies of the household. at age fourteen, they were advanced to squires and admitted into more familiar association with the knights and ladies of the court. they perfected their skills in dancing, riding, fencing, hawking, hunting, jousting, and engaged in team sports in which the goal was to put the other side to rout. they learned the knightly art of war. enemy fighters were to be taken and held for ransom rather than killed. those engaging in rebellion were to be pardoned and restored to some or all of their lands and titles. lords' sons could be mutually exchanged with an enemy's as security for peace. after achieving knighthood, a man usually selected a wife from the court at which he grew up. parents tried to send their daughters to a household superior in social status not only to learn manners, but to make a good marriage. a girl who did not marry was often sent to a nunnery; a dowry was necessary before her acceptance. the following incidents of land tenure began (but were not firmly established until the reign of henry ii). each tenant, whether baron or subtenant, was to pay an "aid" in money for ransom if his lord was captured in war, for the knighthood of his lord's eldest son, and for the marriage of his lord's eldest daughter. the aid was theoretically voluntary. land could be held by an heir only if he could fight. the eldest son began to succeed to the whole of the lands in all military tenures. actually, william and his sons insisted on undivided succession rather than a strict application of the primogeniture rule that the eldest son inherit.younger sons of great houses became bishops. an heir of a tenant had to pay a heavy "relief" on succession to his estate. the relief replaced the heriot. if there was a delay in proving heirship or paying relief, the lord would hold the land and receive its income in the meantime, often a year. if an heir was still a minor or female, he or she passed into his lord's wardship, in which the lord had guardianship of the heir and possession of the estate, with all its profits. the mother was not made a minor's guardian. no longer was the estate protected by the minor's kin as his birthright. a female heir was expected to marry a man acceptable to the lord. the estate of an heiress and her land was generally sold to the highest bidder. if there were no heirs, the land escheated [reverted] to the lord. if a tenant committed felony, his land escheated to his lord. the word "felony" came from the latin word meaning "to deceive" and referred to the feudal crime of betraying or committing treachery against one's lord. astrologers resided with the families of the barons. people went to fortune tellers' shops. there was horse racing, steeple races, and chess for recreation. girls had dolls; boys had toy soldiers, spinning tops, toy horses, ships, and wooden models. the state of medicine is indicated by this medical advice brought to the nation by william's son after treatment on the continent: "if thou would have health and vigor shun cares and avoid anger. be temperate in eating and in the use of wine. after a heavy meal rise and take the air sleep not with an overloaded stomach and above all thou must respond to nature when she calls." the conquerer allowed jewish traders to follow him from normandy and settle in separate sections of the main towns. then engaged in long distance trade, money changing, and money lending. they loaned money for interest for the building of castles and cathedrals. christians were not allowed by the church to engage in this usury. the jews could not become citizens nor could they have standing in the local courts. instead, a royal justiciar secured justice for them. they could practice their own religion. william the conquerer was succeeded as king by his son william ii (rufus), who transgressed many of the customs of the nation to get more money for himself. he was killed by an arrow of a fellow hunter while they and william's younger brother henry were hunting together in a crown forest. henry then became king. the law the notion of the king's peace extended until it was the normal and general safeguard of the public order. the norman conquerors brought no code of written law. william's laws largely affirmed the laws of the nation as they were in the times of edward i. these are substantially all of the laws of william i: all freemen shall swear an oath of loyalty to william i and shall uphold his lands and honors and defend them against enemies and aliens. william will protect them and exact no more than legally owed service. if a frenchman summons an englishman for perjury, murder, theft, homicide or open robbery, the englishman shall defend himself by whichever method he prefers, either the ordeal of iron or trial by combat. the person defeated shall pay a fine to the king. if an englishman summons a frenchman and declines to prove the charge by ordeal or by combat, the frenchman shall clear himself by a comprehensive oath. for a charge of outlawry, an englishman shall clear himself by the ordeal of iron. when an englishman brings a charge of outlawry against a frenchman, the frechman will defend himself by combat or by a comprehensive oath, at the choice of the englishman. all the men whom i brought with me [normans] or who come after me shall enjoy my protection. if any of them is slain, his lord shall arrest the slayer within five days, if he can. if not, he shall begin to pay me a "murdrum" fine of 46 marks of silver from the property of that lord as long as it lasts. if the property of the lord fails, the whole hundred in which the murder was committed shall pay in common what remains. all freemen shall be in a frankpledge, so that the frankpledge may bring him to justice, if he has committed an offense or the members of the frankpledge shall pay the claim unless clearing themselves of the charge of any knowledge of fraud by the runaway. the hundred and county courts shall be attended as before. those who are required to appear shall be summoned once. ad if they refuse to appear on the second summons, as ox [worth 30d.] shall be confiscated. and so for the third summons, another ox. and if they refuse the fourth summons, the "ceapgeld" [120s.] shall be paid and also the fine for insubordination. "everyone who wishes to be admitted to the benefit of the law and to be qualified to obtain legal rights shall be in frankpledge." in mercia, a surety has a month and a day to find an escaped person accused of larceny or robbery, or else shall swear with eleven compurgators that he had not known him to be a thief, that he was not accessory to his flight, and that he cannot find him. then he shall pay for the stolen goods and 20s. in lieu of the head of the accused man and 4d. to the jailor, a farthing for the spade, and 40s. to the king. every lord shall be personally responsible as surety for his servant so that, it an accusation is brought against him, he shall bring him for trial in the hundred court. and if he escapes while he is under the accusation, the lord shall pay his wergeld. and if the lord is accused of being an accessory to his flight, he shall clear himself with 5 compurgators, and if he cannot, he shall pay compensation to the king; and the man shall be an outlaw. all freemen shall keep themselves supplied with arms and horses or pay the full fine of insubordination. all earls, barons, knights, tenants by serjeanty and all free men shall be ready to perform their service defending me against enemies and aliens, by virtue of their fiefs, which are hereditary. or pay the fine for insubordination. the heriot of an earl, which falls to the king, is 8 horses 4 of them bridled and saddled 4 coats of mail, 4 helmets, 4 shields, 4 lances and 4 swords. of the other 4 horses, 2 shall be hunters and 2 riding horses with bridlos and halters. the heriot of a baron is 4 horses 2 bridled and saddled 2 coats of mail, 2 helmets, 2 shields, 2 swords and 2 lances. and of the other 2 horses, 1 shall be a hunter and 1 a riding horse with bridles and halters. the heriot of a thegn of lower rank to his liege lord shall be discharged by (delivering up) his father's horse, as it was in the day of his death, his helmet, his shield, his coat of mail, and lance and his sword. and if he was without equipment, having neither horse nor arms, it shall be discharged by the payment of 100 s. the heriot of a villain: he shall give to this lord the best animal that he has, either a horse, an ox, or a cow. and further all villeins shall be in frankpledge. for those who hold their land by the payment of rent, the legal heriot shall be the equivalent of a year's rent. no one shall entertain a man for more than 3 days, unless he is committed to this charge by the man with whom he was formerly serving. and no one shall let any of his men leave him after an accusation has all men shall keep the law of edward relating to the tenure of estates. been brought against him. i prohibit the slaying or hanging of anyone for any offense, but his eyes shall be put out and he shall suffer castration, so the trunk remains alive as a sign of his treachery and wickedness. if a person violates this, he shall pay the insubordination fee. all cities, boroughs, castles, hundreds and wapentakes shall be guarded every night on all sides against malefactors and enemies, as our sheriffs, earldormen, reeves and other officials and servants best provide. the protection of the church is inviolable. whatever crime a man has committed, if he can make his way to a holy church, he shall have protection for life and limb. and if anyone lays hands on him there, he shall pay for anything he has taken and a fine of 100s. for a bishop's church, abbey or monastery, 20s. for a parish church, and 10s. for a chapel. "if a man wishes to prove against his lord that he has an agreement for his land, he must do so by means of his fellow-tenants whom he summons as witnesses, for he cannot do so by means of strangers." if a man slays another he shall pay manbot to the lord of the slain man in the amount of 10s. for a free man and 20s. for a slave. the wergeld of a thegn is 20 pounds in mercia and 25 pounds in wessex. the wergeld of a villain is 100s. (20s. would buy a stallion, 10s. a bull and 5s. a boar.) 10s. of the wergeld shall be paid to the widow and children and the relatives and orphans shall divide what remains among themselves. the archbishop shall have as compensation for breach of his protection 40s. in mercia, a bishop 20s., an earl 20s., a baron 10s.,and a sokeman 40d. if a man wounds another he shall pay for medical attendance and if he is wounded on the face, or a part which is visible, for every inch 8d., on the head or any hidden place, for every inch 4d., for every piece of bone drawn out of the wound 4d. if a man cuts off the hand or foot of another, he shall pay half his wergeld according to his inherited rank. for the thumb he shall pay half the value of his hand, for the finger next the thumb, 15s. according to the english reckoning (i.e. 4d. to the shilling), for the middle finger 16s., for the ring-finger 17s., for the little finger 5s., for the nail if it is cut away from the flesh, 5 english s., for the nail of the little finger 4d. "if a man poisons another, he shall be slain or sent into permanent exile." there is a 100s. fine for violation of the king's peace or attack on people's houses or for premeditated waylaying. if anyone slays or assaults anyone who is traveling through the country on any of the following four highways, namely, watling street, ermine street, the fosse way, the icknied way, he violates the king's peace. (two of these streets extended the length of the kingdom and two extended across its width.) for the guarding of roads, every 10 hides of the hundred shall supply a man between michaelmas and martinmas, or pay compensation for any livestock taken over the road, unless they have raised the hue and cry of been subject to force. a peasant is not to be harassed or ejected except for not performing his legal services. a peasant leaving the estate where he was born must be returned to it. if a father finds his daughter in adultery in his own or in his son-in-laws house, he may slay the adulterer. the same holds for a son and his mother during the father's lifetime. "he who assaults the wife of another man shall forfeit his wergeld to his lord." "if anyone assaults a woman he shall suffer castration as a penalty." "if a woman who is pregnant is sentenced to death or to mutilation, the sentence shall not be carried out until she is delivered." if anyone knocks out a man's eye by any kind of accident, he shall pay 70 english shillings as compensation. and if he destroys the sight without displacing the pupil, he shall pay only half the sum. "if a man dies intestate [without a will], his children shall divide the inheritance equally among themselves." and if anyone comes upon a thief and of his own accord lets him escape, without raising the hue and cry, he shall make compensation by the payment of the thief's value or clear himself. "and if anyone hears the hue and cry and neglects it, he shall pay the fine for neglecting it to the king, or clear himself." if a man captures a thief without the hue and cry being given, the injured man shall pay 10s. as a fine for neglecting to arrest the thief. if theft is discovered on anyone's land and the thief is discovered, the lord of the estate and the thief's wife shall have half of his property and the claimants shall have their goods, if they find them. and with regard to the other half, if the theft is discovered in a district over which the lord has rights of jurisdiction, the wife shall lose her share and it shall pass to the lord. "further, we forbid the buying or selling of any livestock except within towns and before three trustworthy witnesses, likewise that of any second-hand goods without a surety and warrantor." the penalty is twice the value of the goods and the fine for insubordination. no one shall buy anything of 4d. in value, either livestock or other property, unless he has 4 men as witnesses either from a town or a village. if anyone claims it and he has no witnesses and no warrantor, the goods shall be given up to the claimant and the fine shall be paid to the party who is entitled thereto. and if he has such witnesses, vouching to warranty shall take place three times; and on the fourth occasion he shall prove his ownership of it or deliver it up. if anyone has taken livestock into his care, whether horses or oxen or cows or sheep or pigs, the man who claims them shall pay 8d. and no more in return for the care of them, however many there are up to a hundred head of cattle. as for one pig, 1d, for one sheep, 1d., and so on up to 8d. and he shall give pledge and find surety, that if another man comes forward within a year and a day to claim them, he will bring it for decision to the court of the man who had taken them into his own care. strayed livestock and found property shall be exhibited in three parts of the neighborhood. anyone who claims it shall give pledge and surety and if another claims it within a year and a day, he will bring it for decision to the court of the man who found it. the attachment of livestock: if anyone desires to claim it as stolen, and is willing to give pledge and find surety for prosecuting his claim, he who has possession of it must name his warrantor if he has one. if not, he shall name his surety and his witnesses, and produce them at the appointed day and time, if he has them, and the claimant shall give a pledge with 5 compurgators, and the other shall give the livestock into the hands of his warrantor or his surety, whichever of these he has. and if he has neither but has witnesses that he bought it in the public market and that he does not know whether his warrantor or his pledge is dead or alive, he shall swear to this along with his witnesses with a simple oath. in this way he shall lose his goods, but escape punishment, if they bear witness that he obtained a surety for them. and, in mercia, if he can produce neither warrantor nor witness, he shall lose the goods and pay in addition compensation to the claimant and forfeit is wergeld to his lord. and if he can prove that it is of his own breeding by means of witnesses drawn from three parts of his neighborhood he shall have won his case. there shall be no market or fair except in boroughs or castles or other enclosed or well-guarded places. weights and measures shall be stamped and reliable as before. "likewise if slaves have remained for a year and a day, without being claimed, in our cities or in our walled boroughs or in our castles, from that day they shall become free men." i forbid anyone to sell a christian out of the country, especially into heathen lands, or pay the fine for insubordination to me. anyone can set free a slave of his by presenting him to the sheriff in the county court and giving him the arms of a freeman, namely a lance and sword. if i cast your things overboard from a ship in fear of death, then you cannot bring a charge against me. the things that remained in the ship shall be divided in common according to the value of the goods originally belonging to each person. he who possesses livestock of the value of 30 d. shall pay peter's pence, and then his laborers, herdsmen, and servants shall be exempt. otherwise he shall pay a fine of 30d. to the bishop and 40s. to the king. if a man accuses another of theft and the latter is a free man and can produce witnesses to prove that he is entitled to the benefit of the law, he shall clear himself by the simple oath (of exculpation). and those who have been (previously) accused shall clear themselves by the oath with selected compurgators, that is by means of 14 qualified men nominated (by the court) of whom 11 must act as the accused man's compurgators to clear him of the charge, if he can find as many to do so. and if he cannot find them, he shall defend himself against the charge by the ordeal. and the plaintiff shall swear by means of 7 men nominated (by the court), of whom 5 must act as his compurgators, that he does nothing through malice or for any other reason than to obtain his legal right. and if anyone is accused of breaking into a church or a treasury, and has no previous convictions, he shall clear himself with 11 compurgators found among 14 qualified men nominated (by the court). and if he has been previously accused, he shall clear himself with three times as many, namely with 35 compurgators found among 42 qualified men nominated (by the court). and if he cannot find them, he shall go to the triple ordeal, just as he had (to produce) a triple oath. and if he has previously paid compensation for theft, he shall go to the water ordeal. he who gives a false judgment shall forfeit his wergeld to his lord, unless he can swear on the holy relics that he did not know how to give a better decision. no one shall be condemned to death for a trivial crime, but another penalty shall be devised according to the nature and magnitude of the crime. he who makes an unjust judgment because of rage, malice, or bribery forfeits 40s. to the king and loses his right of jurisdiction. a judgment given in a case between those concerned cannot affect injuriously others who are not present. he who refuses to observe just law and just judgment shall forfeit a fine to the party who is entitled thereto, the king 6 pounds, an earl 40s. and to all those who have a court in england. no one shall appeal to the king until he fails to obtain justice in the hundred or county courts. "when a man carries on a suit in any court other than that in which the king is present in person, and it is maintained against him that he has said something which he will not acknowledge if he can prove by means of a trustworthy man, who has seen and heard all the suit, that he did not say it, then the validity of his word shall be admitted." "and if anyone who has charges brought against him in the hundred court to such an extent that 4 men accuse him, he shall clear himself with 11 compurgators." "no one shall make distraint of property whether in the county court or outside it, until he has demanded justice three times in the hundred or in the county courts." if the man against whom he is bringing his charge fails to appear the fourth time, he shall get leave to make distraint for what is his own. if anyone who is accused and against whom evidence of untrustworthiness is given fails three times to attend the court proceedings, and if, at the fourth meeting of the court, the summoners bring forward his three defections, he shall once more be asked to find a surety and appear before the court. and if he refuses, he shall be seized, alive or dead, and all that he has shall be taken, and the value of his goods shall be paid to the claimant, and the lord of the thief shall take half of what remains and the hundred half. one god shall be honored throughtout the kingdom. by charter, william granted to londoners all the rights they had in the time of king edward and willed that every child should be his father's heir. judicial procedure "ecclesiastical" courts were created for bishops to preside over cases concerning the cure of souls and criminal cases, in which the ordeal was used. when the conqueror did not preside over this court, an appeal could be made to him. the hundred and county courts now sat without clergy and handled only "civil" cases. they were conducted by the king's own appointed sheriff. only freemen and not bound villeins had standing in this court. they continued to transact their business in the english language. the local jurisdictions of thegns who had grants of sac and soke or who exercised judicial functions among their free neighbors were now called "manors" and their owners conducted a manor court. the conqueror's royal court ["curia regis"] replaced the witan. it was composed of those to whom william had made grants of land on the understanding that they should perform certain feudal services to him. when the conqueror wished to determine the national laws, he summoned twelve elected representatives of each county to declare on oath the ancient lawful customs and law as they existed in the time of the popular king edward the confessor. the recording of this law was begun. a person could spend months trying to catch up with the royal court to present a case. sometimes the conqueror sent the justiciar or commissioners to hold his royal court in the various districts. the commissioner appointed groups of local men to give a collective verdict upon oath for each trial he conducted. the conqueror allowed, on an ad hoc basis, certain high-level people such as bishops and abbots and those who made a large payment, to have land disputes decided by an inquiry of recognitors. besides royal issues, the royal court heard appeals from lower court decisions. it used english, norman, feudal, roman, and canon law legal principles to reach a decision, and was flexible and expeditious. the powers of the shire court were lessened by the expanding authority of the royal court. trial by combat could be used in two instances: 1) a dispute between a frenchman and an englishman over seisin of land initiated by a writ of right, or 2) a criminal appeal of felony brought by an englishman or frenchman against the other. each combatant first swore to the truth of his cause and undertook to prove by his body the truth of his cause by making the other surrender by crying "craven" [craving forgiveness]. the combatants used weapons like pickaxes and shields. presumably the man in the wrong would not fight as well because he was burdened with a guilty conscience. although this trial was thought to reflect god's will, it favored the physically fit and adept person. after losing the trial by combat, the guilty person would be punished appropriately. london had its own traditions. all london citizens met at its folkmote, which was held three times a year to determine its public officers, to raise matters of public concern, and to make ordinances. its criminal court had the power of outlawry as did the county courts. trade, land, and other civil issues were dealt with by the hustings court, which met every monday in the guildhall. the city was divided into wards, each of which was under the charge of an elected alderman [elder man]. (the election was by a small governing body and the most wealthy and reputable men and not a popular election.) the aldermen had special knowledge of the law and a duty to declare it at the hustings court. each alderman also conducted wardmotes in his ward and decided criminal and civil issues between its residents. within the wards were the guilds of the city. king william i decided a lawsuit regarding land on the basis of testimony of the county thus: "william, by god's grace king of the english, to bishop walkelin, {sheriff} hugh de port and his lieges of hampshire, greeting. i notify you that i have restored to archbishop thomas of york one hide of land pertaining to the church of mottisfont, as archbishop ealdred best had it at the time of king edward, in meadows and wood and pasture and in common pasturage for as many animals as the maximum he could have there at the time of king edward, as was testified before bishop [william] of durham and bertram de verdun and devised by the men of the county. farewell. witnesses: bishop william of durham and bertram de verdun." the royal court decided this case: "at length both parties were summoned before the king's court, in which there sat many of the nobles of the land of whom geoffrey, bishop of coutances, was delegated by the king's authority as judge of the dispute, with ranulf the vicomte, neel, son of neel, robert de usepont, and many other capable judges who diligently and fully examined the origin of the dispute, and delivered judgment that the mill ought to belong to st. michael and his monks forever. the most victorious king william approved and confirmed this decision." chapter 5 the times: 1100-1154 king henry i, son of william the conquerer, furthered peace between the normans and native english by his marriage to a niece of king edward the confessor called matilda. she married him on condition that he grant a charter of rights undoing some practices of the past reigns of william i and william ii. peace was also furthered by the fact that henry i had been born in england and english was his native tongue. the private wars of lords were now replaced by less serious mock battles. henry was a shrewd judge of character and of the course of events, cautious before taking action, but decisive in carrying out his plans. he was faithful and generous to his friends. he showed a strong practical element of calculation and foresight. although illiterate, he was intelligent and a good administrator. he had an efficient intelligence gathering network and an uncanny knack of detecting hidden plans before they became conspiratorial action. he made many able men of inferior social position nobles, thus creating a class of career judges and administrators in opposition to the extant hereditary aristocracy. he loved books and built a palace at oxford to which he invited scholars for lively discussion. euclid's "elements" ", which deduced from axioms the properties of lines, circles, and spheres, was introduced into england. queen matilda served as regent of the kingdom in henry's absence, as william's queen had for him. both queens received special coronation apart from their husbands; they held considerable estates which they administered through their own officers, and were frequently composed of escheated honors. matilda was learned and a literary patron. she founded an important literary and scholastic center. her compassion was great and her charities extensive. in london she founded several almshouses and a caregiving infirmary for lepers. these were next to small monastic communities. she also had new roads and bridges built. henry issued charters restoring customs which had been subordinated to royal impositions by previous kings, which set a precedent for later kings. his coronation charter describes certain property rights he restored after the oppressive reign of his brother, william ii. "henry, king of the english, to samson the bishop, and urse of abbetot, and to all his barons and faithful vassals, both french and english, in worcestershire, greeting. [1.] know that by the mercy of god and by the common counsel of the barons of the whole kingdom of england i have been crowned king of this realm. and because the kingdom has been oppressed by unjust exactions, i now, being moved by reverence towards god and by the love i bear you all, make free the church of god; so that i will neither sell nor lease its property; nor on the death of an archbishop or a bishop or an abbot will i take anything from the demesne of the church or from its vassals during the period which elapses before a successor is installed. i abolish all the evil customs by which the kingdom of england has be unjustly oppressed. some of those evil customs are here set forth. [2.] if any of my barons or of my earls or of any other of my tenants shall die his heir shall not redeem his land as he was wont to do in the time of my brother, but he shall henceforth redeem it by means of a just and lawful relief. similarly the men of my barons shall redeem their lands from their lords by means of a just and lawful relief. [3.] if any of my barons or of my tenants shall wish to give -in marriage his daughter or his sister or his niece or his cousin, he shall consult me about the matter; but i will neither seek payment for my consent, nor will i refuse my permission, unless he wishes to give her in marriage to one of my enemies. and if, on the death of one of my barons or of one of my tenants, a daughter should be his heir, i will dispose of her in marriage and of her lands according to the counsel given me by my barons. and if the wife of one of my tenants shall survive her husband and be without children, she shall have her dower and her marriage portion [that given to her by her parents], and i will not give her in marriage unless she herself consents. [4.] if a widow survives with children under age, she shall have her dower and her marriage portion, so long as she keeps her body chaste; and i will not give her in marriage except with her consent. and the guardian of the land, and of the children, shall be either the widow or another of their relations, as may seem more proper. and i order that -my barons shall act likewise towards the sons and daughters -and widows of their men. [5.] i utterly forbid that the common mintage [a forced levy to prevent loss to the king from depreciation of the -coinage], which has been taken from the towns and counties, shall henceforth be levied, since it was not so levied in the time of king edward [the confessor]. if any moneyer or other person be taken with false money in his possession, let true justice be visited upon him. [6.] i forgive all pleas and all debts which were owing to my brother, except my own proper dues, and except those things which were agreed to belong to the inheritance of others, or to concern the property which justly belonged to others. and if anyone had promised anything for his heritage, i remit it, and i also remit all 'reliefs' which were promised for direct inheritance. [7.] if any of my barons or of my men, being ill, shall give away or bequeath his movable property, i will allow that it shall be bestowed according to his desires. but if, prevented either by violence or through sickness, he shall die intestate as far as concerns his movable property, his widow or his children, or his relatives or one his true men shall make such division for the sake of his soul, as may seem best to them. [8.] if any of my barons or of my men shall incur a forfeit, he shall not be compelled to pledge his movable property to an unlimited amount, as was done in the time of my father [william i] and my brother; but he shall only make payment -according to the extent of his legal forfeiture, as was done before the time of my father and in the time of my earlier predecessors. nevertheless, if he be convicted of breach of faith or of crime, he shall suffer such penalty as is just. [9.] i remit all murder fines which were incurred before the day on which i was crowned king; and such murder fines as shall now be incurred shall be paid justly according to the law of king edward [by sureties]. [10.] by the common counsel of my barons i have retained the forests in my own hands as my father did before me. [11.] the knights, who in return for their estates perform military service equipped with a hauberk [long coat] of mail, shall hold their demesne lands quit of all gelds [money payments] and all labor services; i make this concession as my own free gift in order that, being thus relieved of so great a burden, they may furnish themselves so well with horses and arms that they may be properly equipped to discharge my service and to defend my kingdom. [12.] i establish a firm peace in all my kingdom, and i order that this peace shall henceforth be kept. [13.] i restore to you the law of king edward together with such emendations to it as my father [william i] made with the counsel of his barons. [14.] if since the death of my brother, king william [ii], anyone shall have seized any of my property, or the property of any other man, let him speedily return the whole of it. if he does this no penalty will be exacted, but if he retains any part of it he shall, when discovered, pay a heavy penalty to me. witness: maurice, bishop of london; william, bishop-elect of winchester; gerard, bishop of herefore; henry the earl; simon the earl; walter giffard; robert of montfort-sur-risle; roger bigot; eudo the steward; robert, son of haimo; and robert malet. at london when i was crowned. farewell." henry took these promises seriously, which resulted in peace and justice. royal justice became a force to be reckoned with by the multiplication of justices. henry had a great respect for legality and the forms of judicial action. he became known as the "lion of justice". the payment of queen's gold, that is of a mark of gold to the queen out of every hundred marks of silver paid, in the way of fine or other feudal incident, to the king, probably dates from henry i's reign. a woman could inherit a fief if she married. the primary way for a man to acquire control of land was to marry an heiress. if a man were in a lower station than she was, he had to pay for his new social status as well as have royal permission. a man could also be awarded land which had escheated to the king. if a noble woman wanted to hold land in her own right, she had to make a payment to the king. many widows bought their freedom from guardianship or remarriage from the king. women whose husbands were at war also ran the land of their husbands. barons were lords of large holdings of farmland called "manors". many of the lesser barons left their dark castles to live in semifortified stone houses, which usually were of two rooms with rug hangings for drafts, as well as the sparse furniture that had been common to the castle. there were shuttered windows to allow in light, but which also let in the wind and rain when open. the roof was of thatch or narrow overlapping wood shingles. the stone floor was strewn with hay and there was a hearth near the center of the floor, with a louvered smoke hole in the timber roof for escape of smoke. there were barns for grain and animals. beyond this area was a garden, orchard, and sometimes a vineyard. the area was circumscribed by a moat over which there was a drawbridge to a gatehouse. the smaller room was the lord and lady's bedroom. it had a canopied bed, chests for clothing, and wood frames on which clothes could be hung. life on the manor revolved around the larger room, or hall, where the public life of the household was passed. there, meals were served. the daily diet typically consisted of milk, soup, porridge, fish, vegetables, and bread. open hospitality accompanied this communal living. there was little privacy. manor household villeins carried the lord's sheaves of grain to the manor barn, shore his sheep, malted his grain, and chopped wood for his fire. at night some slept on the floor of the hall. others, who were cottars and bordars, had their own dwellings nearby. the manor house of lesser lords or knights was still built of wood, although it often had a stone foundation. about 35% of the land was arable land, about 25% was common pasture land (for grazing only) or meadow land (near a stream or river and used for hay or grazing), and about 15% was woodland. there were these types of land and wasteland on each manor. the arable land was allotted to the villeins in strips to equalize the best and worst land and their distance from the village where the villeins lived. there was three-way rotation of wheat or rye, oats or barley, and fallow land. cows, pigs, sheep, and fowl were kept. the meadow was allocated for hay for the lord's household and each villein's. the villeins held land of their lord for various services such as agricultural labor or raising domestic animals. the villeins worked about half of their time on their lord's fields [his demesne land], which was about a third of the farmland. this work was primarily to gather the harvest and to plough with oxen, using a yoke over their shoulders, and to sow in autumn and lent. they threshed grain on barn floors with flails cut from holly or thorn, and removed the kernels from the shafts by hand. work lasted from sunrise to sunset and included women and children. the older children could herd geese and pigs, and set snares for rabbits. the young children could gather nuts and berries in season and other wild edibles, and could pick up little tufts of wool shed by sheep. the old could stay in the hut and mind the children, keep the fire going and the black pot boiling, sew, spin, patch clothes, and cobble shoes. the old often suffered from rheumatism. many people had bronchitis. many children died of croup [inflammation of the respiratory passages]. life expectancy was probably below thirty-five. the villein retained his customary rights, his house and land and rights of wood and hay, and his right in the common land of his township. customary ways were maintained. the villeins of a manor elected a reeve to communicate their interests to their lord, usually through a bailiff, who directed the labor. sometimes there was a steward in charge of several of a lord's manors, who also held the manorial court for the lord. the steward held his land of the lord by petty serjeanty, which was a specific service to the lord. other serjeanty services were carrying the lord's shield and arms, finding attendants and esquires for knights, helping in the lord's hunting expeditions, looking after his hounds, bringing fuel, doing carpentry, and forging irons for ploughs. the woodward preserved the timber. the messer supervised the harvesting. the hayward removed any fences from the fields after harvest to allow grazing by cattle and sheep. the coward, bullard, and calvert tended the cows, bulls, and calves; the shepherd, the sheep; and the swineherds the pigs. the ponder impounded stray stock. there were varieties of horses: war horses, riding horses, courier horses, pack horses, and plough horses. the majority of manors were coextensive with a single village. the villeins lived in the village in one-room huts enclosed by a wood fence, hedge, or stone wall. in this yard was a garden of onions, leeks, mustard, peas, beans, parsley, garlic, herbs, and cabbage and apple, pear, cherry, quince, and plum trees, and beehives. the hut had a high-pitched roof thatched with reeds or straw and low eaves reaching almost to the ground. the walls are built of wood-framing overlaid with mud or plaster. narrow slits in the walls serve as windows, which have shutters and are sometimes covered with coarse cloth. the floor is dirt and may be covered with straw or rushes for warmth, but usually no hearth. in the middle is a wood fire burning on a hearthstone, which was lit by making a spark by striking flint and iron together. the smoke rose through a hole in the roof. at one end of the hut was the family living area, where the family ate on a collapsible trestle table with stools or benches. their usual food was beans and peas, oatmeal gruel, butter, cheese, vegetables, honey, rough bread made from a mixture of wheat, barley, and rye flour, herrings or other salt fish, and some salted or smoked bacon. butter had first been used for cooking and as a medicine to cure constipation. for puny children it could be salted down for the winter. the bread had been roasted on the stones of the fire; later there were communal ovens set up in villages. cooking was done over the fire by boiling in iron pots hung from an iron tripod, or sitting on the hot stones of the fire. they ate from wood bowls using a wood spoon. when they had fresh meat, it could be roasted on a spit. liquids were heated in a kettle. with drinking horns, they drank water, milk, buttermilk, apple cider, mead, ale made from barley malt, and bean and vegetable broth. they used jars and other earthenware, e.g. for storage of salt. they slept on straw mattresses or sacks on the floor or on benches. the villein regarded his bed area as the safest place in the house, as did people of all ranks, and kept his treasures there, which included his farm implements, as well as hens on the beams, roaming pigs, and stalled oxen, cattle, and horses, which were at the other end of the hut. fires were put out at night to guard against fire burning down the huts. the warmth of the animals then helped make the hut warm. around the room are a couple of chests to store salt, meal, flour, a broom made of birch twigs, some woven baskets, the distaff and spindle for spinning, and a simple loom for weaving. all clothes were homemade. they were often coarse, greasy wool and leather made from their own animals. the man wore a tunic of coarse linen embroidered on the sleeves and breast, around with he wore a girdle of rope, leather, or folded cloth. sometimes he also wore breeches reaching below the knee. the woman wore a loose short-sleeved gown, under which was a tight fitting garment with long loose sleeves, and which was short enough to be clear of the mud. if they wore shoes, they were clumsy and patched. some wore a hood-like cap. for really bad weather, a man wore on his head a hood with a very elongated point which could be wrapped around his neck. sometimes a short cape over the shoulders was attached. linen was too expensive for commoners. the absence of fresh food during the winter made scurvy prevalent; in the spring, people eagerly sought "scurvy grass" to eat. occasionally there would be an outbreak of a nervous disorder due to the ergot fungus growing in the rye used for bread. this manifested itself in apparent madness, frightening hallucinations, incoherent shouting, hysterical laughing, and constant scratching of itching and burning sensations. the villein and his wife and children worked from daybreak to dusk in the fields, except for sundays and holydays. he had certain land to farm for his own family, but had to have his grain milled at his lord's mill at the lord's price. he had to retrieve his wandering cattle from his lord's pound at the lord's price. he was expected to give a certain portion of his own produce, whether grain or livestock, to his lord. however, if he fell short, he was not put off his land. the villein, who worked the farm land as his ancestor ceorl had, now was so bound to the land that he could not leave or marry or sell an ox without his lord's consent. if the manor was sold, the villein was sold as a part of the manor. when his daughter or son married or if he sent his son to school,he had to pay a "merchet" to his lord. he could not have a son educated without the lord's permission, and this usually involved a fee to the lord. his best beast at his death, or "heriot", went to his lord. if he wanted permission to live outside the manor, he paid "chevage" yearly. woodpenny was a yearly payment for gathering dead wood. sometimes a "tallage" payment was taken at the lord's will. the villein's oldest son usually took his place on his land and followed the same customs with respect to the lord. for an heir to take his dead ancestor's land, the lord demanded payment of a "relief", which was usually the amount of a year's income but sometimes as much as the heir was willing to pay to have the land. the usual aids were also expected to be paid. a large village also had a smith, a wheelwright, a millwright, a tiler and thatcher, a shoemaker and tanner, a carpenter wainwright and carter. markets were about twenty miles apart because a farmer from the outlying area could then carry his produce to the nearest town and walk back again in the daylight hours of one day. in this local market he could buy foodstuffs, livestock, household goods, fuels, skins, and certain varieties of cloth. the cloth was crafted by local weavers, dyers, and fullers. the weaver lived in a cottage with few and narrow windows and little furniture. he worked in the main, and sometimes the only, room. first the raw wool was washed with water at the front door to remove the grease. then its fibers were disentangled and made fine with hand cards with thistle teeth, usually by the children. then it was spun by a spinning wheel into thread, usually by the wife. on a double frame loom, a set of parallel threads was strung lengthwise. a device worked by a pedal lifted half of these threads --every other thread--while the other half remained in place. between the lifted threads and the stationary threads a shuttle was thrown by the weaver from one hand to another. then the threads which had remained stationary were raised by a second pedal and the shuttle thrown back. the shuttle carried a spool so that, as it moved, it left a thread behind it running crosswise or at right angles to the lengthwise threads and in and out between them. the lengthwise threads were called the "warp"; the shuttle thread was the "woof" or the "weft".in making cloth, it was the warp which, as the loom moved, took the worst beating. with the constant raising and lowering, these treads would wear and break, whereas the weft on which there was little strain remained intact. none of the cotton yarn which the old-fashioned wheels had spun was strong enough for warp. so it was necessary to use linen thread for the warp. since one loom could provide work for about six spinners, the weaver had his wool spun by other spinners in their cottages. sometimes the master weaver had an apprentice or workman working and living with him, who had free board and lodging and an annual wage. then a fuller made the cloth thick and dense by washing, soaping, beating, and agitating it, with the use of a community watermill which could be used by anyone for a fixed payment. the cloth dried through the night on a rack outside the cottage. the weaver then took his cloth, usually only one piece, to the weekly market to sell. the weavers stood at the market holding up their cloth. the cloth merchant who bought the cloth then had it dyed or dressed according to his requirements. its surface could be raised with teazleheads and cropped or sheared to make a nap. some cloth was sold to tailors to make into clothes. often a weaver had a horse for travel, a cow for milk, chickens for eggs, perhaps a few cattle, and some grazing land. butchers bought, slaughtered, and cut up animals to sell as meat. some was sold to cooks, who sold prepared foods. the hide was bought by the tanner to make into leather. the leather was sold to shoemakers and glovemakers. millers bought harvested grain to make into flour. flour was sold to bakers to make into breads. wood was bought by carpenters and by coopers, who made barrels, buckets, tubs, and pails. tilers, oilmakers and rope makers also bought raw material to make into finished goods for sale. wheelwrights made ploughs, harrows, carts, and later wagons. smiths and locksmiths worked over their hot fires. games with dice were sometimes played. in winter, youths iceskated with bones fastened to their shoes. they propelled themselves by striking the ice with staves shod with iron. on summer holydays, they exercised in leaping, shooting with the bow, wrestling, throwing stones, and darting a thrown spear. the maidens danced with timbrels. since at least 1133, children's toys included dolls, drums, hobby horses, pop guns, trumpets, and kites. the cold, indoors as well as outdoors, necessitated that people wear ample and warm garments. men and women of position dressed in long full cloaks reaching to their feet, sometimes having short full sleeves. the cloak generally had a hood and was fastened at the neck with a brooch. underneath the cloak was a simple gown with sleeves tight at the wrist but full at the armhole, as if cut from the same piece of cloth. a girdle or belt was worn at the waist. when the men were hunting or working, they wore gown and cloak of knee length. men wore stockings to the knee and shoes. the fashion of long hair on men returned. the nation grew with the increase of population, the development of towns, and the growing mechanization of craft industries. there were watermills for crafts and for supplying and draining water in all parts of the nation. in flat areas, slow rivers could be supplemented by creating artificial waterfalls, for which water was raised to the level of reservoirs. there were also some ironsmelting furnaces. coal mining underground began as a family enterprise. stone bridges over rivers could accommodate one person traveling by foot or by horseback and were steep and narrow. the wheelbarrow came into use to cart materials for building castles and cathedrals. merchants, who had come from the low end of the knightly class or high end of the villein class, settled around the open market areas, where main roads joined. they had plots narrow in frontage along the road and deep. their shops faced the road, with living space behind or above their stores. town buildings were typically part stone and part timber as a compromise between fire precautions and expense. towns, as distinct from villages, had permanent markets. as towns grew, some became boroughs by paying a fee to obtain a charter for self-government from the king giving the town judicial and commercial freedom. they were literate enough to do accounts. so they did their own valuation of the sum due to the crown so as not to pay the sheriff any more than that. these various rights were typically expanded in future times, and the towns received authority to collect the sum due to the crown rather than the sheriff. this they did by obtaining a charter renting the town to the burgesses at a fee farm rent equal to the sum thus deducted from the amount due from the county. the freemen were "free of the borough", which meant they had exclusive rights and privileges with respect to it. selling wholesale could take place only in a borough. burgesses were free to marry. they were not subject to defense except of the borough. they were exempt from attendance at county and hundred courts. the king assessed a tallage [ad hoc tax] usually at ten per cent of property or income. in the boroughs, merchant and manufacturing guilds controlled prices and assured quality. the head officer of the guild usually controlled the borough, which excluded rival merchant guilds. a man might belong to more than one guild, e.g. one for his trade and another for religion. the frankpledge system prevailed in the boroughs. craft guilds grew up in the towns, such as the tanners at oxford, which later merged with the shoemakers into a cordwainers' guild. there were weavers' guilds in several towns, including london, which were given royal sanction and protection for annual payments (twelve pounds of silver for london). they paid an annual tribute and were given a monopoly of weaving cloth within a radius of several miles. guild rules covered attendance of the members at church services, the promotion of pilgrimages, celebration of masses for the dead, common meals, relief of poor brethren and sisters, the hours of labor, the process of manufacture, the wages of workmen, and technical education. king henry standardized the yard as the length of his own arm. trades and crafts, each of which had to be licensed, grouped together by specialty in the town. cloth makers, dyers, tanners, and fullers were near an accessible supply of running water, upon which their trade depended. streets were often named by the trade located there, such as butcher row, pot row, cordwainer row, ironmonger row, wheeler row, and fish row. hirers of labor and sellers of wheat, hay, livestock, dairy products, apples and wine, meat, poultry, fish and pies, timber and cloth all had a distinct location. some young men were apprenticed to craftsmen to assist them and learn their craft. london had bought the right to have an elected mayor. the norman word "mayor" replaced "portreeve". henry i granted the londoners the right to elect a sheriff and a justiciar from among themselves. london had at least twenty wards, each governed by its own alderman. most of them were named after people. london was ruled by sixteen families linked by business and marriage ties. these businesses supplied luxury goods to the rich and included the goldsmiths [sold cups, dishes, girdles, mirrors, purses knives, and metal wine containers with handle and spout], vintners [wine merchants], mercers [sold textiles, haberdashery, combs, mirrors, knives, toys, spices, ointments, and potions], drapers, and pepperers, which later merged with the spicers to become the "grocers", skinners, tanners, shoemakers, woolmen, weavers, fishmongers, armorers, and swordsmiths. there were bakehouses at which one could leave raw joints of meat to be cooked and picked up later. these businesses had in common four fears: royal interference, foreign competition, displacement by new crafts, and violence by the poor and escaped villeins who found their way to the city. when a non-freeholder stayed in london he had to find for frankpledge, three sureties for good behavior. failure to do so was a felony and the ward would eject him to avoid the charge of harboring him with its heavy fine. the arrival of ships with cargoes from continental ports and their departure with english exports was the regular waterside life below london bridge. many foreign merchants lived in london. imports included timber, hemp, fish, and furs. there was a fraternal organization of citizens who had possessed their own lands with sac and soke and other customs in the days of king edward. there were public bathhouses, but they were disreputable. a lady would take an occasional bath in a half cask in her home. the church warned of evils of exposing the flesh, even to bathe. middlesex county was london's territory for hunting and farming. all london craft work was suspended for one month at harvest time. london received this charter for self-government and freedom from the financial and judicial organization of the county: "henry, by the grace of god, king of england, to the archbishop of canterbury and the bishops, abbots, earls, barons, justiciars, sheriffs and all his loyal subjects, both french and english, throughout the whole of england greeting. 1. -be it known to you that i have granted middlesex to my citizens of london to be held on lease by them and their heirs of me and my heirs for 300 pounds paid by tale [yearly], upon these terms: that the citizens themselves [may] appoint a sheriff, such as they desire, from among themselves, and a justiciar, such as they desire, from among themselves, to safeguard the pleas of my crown [criminal cases] and to conduct such pleas. and there shall be no other justiciar over the men of london. 2. -and the citizens shall not take part in any [civil] case whatsoever outside the city walls. -1) and they shall be exempt from the payment of scot and danegeld and the murder fine. -2) and none of them shall take part in trial by combat. -3) and if any of the citizens has become involved in a plea of the crown, he shall clear himself, as a citizen of london, by an oath which has been decreed in the city. -4) and no one shall be billeted [lodged in a person's house by order of the king] within the walls of the city nor shall hospitality be forcibly exacted for anyone belonging to my household or to any other. -5) and all the citizens of london and all their effect [goods] shall be exempt and free, both throughout england and in the seaports, from toll and fees for transit and market fees and all other dues. -6) and the churches and barons and citizens shall have and hold in peace and security their rights of jurisdiction [in civil and criminal matters] along with all their dues, in such a way that lessees who occupy property in districts under private jurisdiction shall pay dues to no one except the man to whom the jurisdiction belongs, or to the official whom he has placed there. -7) and a citizen of london shall not be amerced [fined by a court when the penalty for an offense is not designated by statute] to forfeiture of a sum greater than his wergeld, [hereby assessed as] 100 shillings, in a case involving money. -8) and further there shall be no miskenning [false plea causing a person to be summoned to court] in a husting [weekly court] or in a folkmote [meeting of the community], or in any other court within the city. -9) and the hustings [court] shall sit once a week on monday. -10) and i assure to my citizens their lands and the property mortgaged to them and the debts due to them both within the city and without. -11) and with regard to lands about which they have pled in suit before me, i shall maintain justice on their behalf, according to the law of the city. -12) and if anyone has exacted toll or tax from citizens of london, the citizens of london within the city shall [have the right to] seize [by process of law] from the town or village where the toll or tax was exacted a sum equivalent to that which the citizen of london gave as toll and hence sustained as loss. -13) and all those who owe debts to citizens shall pay them or shall clear themselves in london from the charge of being in debt to them. -14) but if they have refused to pay or to come to clear themselves, then the citizens to whom they are in debt shall [have the right to] seize [by process of law] their goods [including those in the hands of a third party, and bring them] into the city from the [town, village or] county in which the debtor lives [as pledges to compel appearance in court]. -15) and the citizens shall enjoy as good and full hunting rights as their ancestors ever did, namely, in the chilterns, in middlesex, and in surrey. witnessed at westminster." the above right not to take part in any case outside the city relieved london citizens from the burden of traveling to wherever the king's court happened to be, the disadvantage of not knowing local customs, and the difficulty of speaking in the language of the king's court rather than in english. the right of redress for tolls exacted was new because the state of the law was that the property of the inhabitants was liable to the king or superior lord for the common debt. newcastle-on-tyne was recognized by the king as having certain customs, so the following was not called a grant: "these are the laws and customs which the burgesses of newcastle upon tyne had in the time of henry king of england and ought to have. [1] -burgesses can distrain [take property of another until the other performs his obligation] upon foreigners within, or without their own market, within or without their own houses, and within or without their own borough without the leave of the reeve, unless the county court is being held in the borough, and unless [the foreigners are] on military service or guarding the castle. [2] -a burgess cannot distrain upon a burgess without the leave of the reeve. [3] -if a burgess have lent anything of his to a foreigner, let the debtor restore it in the borough if he admits the debt, if he denies it, let him justify himself in the borough. [4] -pleas which arise in the borough shall be held and -concluded there, except pleas of the crown. [5] -if any burgess be appealed [sued] of any plaint, he shall not plead without the borough, unless for default of [the borough] court. [6] -nor ought he to answer without day and term, unless he have fallen into 'miskenning' [error in pleading], except in matters which pertain to the crown. [7] -if a ship have put in at tynemouth and wishes to depart, the burgesses may buy what they will [from it]. [8] -if a plea arise between a burgess and a merchant, it shall be concluded before the third ebb of the tide. [9] -whatever merchandise a ship has brought by sea must be landed, except salt; and herring ought to be sold in the ship. [10] if any man have held land in burgage for a year and a day, lawfully and without claim, he shall not answer a claimant, unless the claimant have been without the realm of -england, or a child not of age to plead. [11] if a burgess have a son, he shall be included in his father's freedom if he be with his father. [12] if a villein come to dwell in the borough, and dwell there a year and a day as a burgess, he shall abide altogether, unless notice has been given by him or by his master that he is dwelling for a term. [13] if any man appeal [sue] a burgess of any thing, he cannot do [trial by] battle with the burgess, but the burgess shall defend himself by his law, unless it be of treason, whereof he is bound to defend himself by [trial by] battle. [14] neither can a burgess do [trial by] battle against a foreigner, unless he first go out of the borough. [15] no merchant, unless he be a burgess, may buy [outside] the town either wool or leather or other merchandise, nor within the borough except [from] burgesses. [16] if a burgess incur forfeit, he shall give six ounces [10s.] to the reeve. [17] in the borough there is no merchet [payment for marrying off a daughter] nor heriot nor bloodwite [fine for drawing blood] nor stengesdint [fine for striking with a stick]. [18] every burgess may have his own oven and handmill if he will, saving the right of the king's oven. [19] if a woman be in forfeit for bread or beer, no one ought to interfere but the reeve. if she forfeit twice, she shall be chastised by her forfeit. if three times, let justice be done on her. [20] no one but a burgess may buy webs [woven fabrics just taken off the loom] to dye, nor make nor cut them. [21] a burgess may give and sell his land and go whither he will freely and quietly unless there be a claim against him." the nation produced sufficient iron, but a primitive steel [iron with carbon added] was imported. it was scarce and expensive. steel was used for tools, instruments, weapons and armor. ships could carry about 300 people. navigation was by simple charts that included wind direction for different seasons and the direction of north. the direction of the ship could be generally determined when the sky was clear by the position of the sun during the day or the north star during the night. plays about miracles wrought by holy men or saints or the sufferings and fortitude of martyrs were performed, usually at the great church festivals. most nobles could read, though writing was still a specialized craft. there were books on animals, plants, and stones. the lives of the saints as told in the book "the golden legend" were popular. the story of the early king arthur was told in the book "the history of the kings of england". the story at this time stressed arthur as a hero and went as follows: arthur became king at age 15. he had an inborn goodness and generosity as well as courage. he and his knights won battles against foreign settlers and neighboring clans. once, he and his men surrounded a camp of foreigners until they gave up their gold and silver rather than starve. arthur married guenevere and established a court and retinue. leaving britain in the charge of his nephew modred, he fought battles on the continent for land to give to his noblemen who did him service in his household and fought with him. when arthur returned to britain, he made battle with his nephew modred who had crowned himself king. arthur's knight gawain, the son of his sister, and the enemy modred were killed and arthur was severely wounded. arthur told his kinsman constantine to rule britain as king in his place. the intellectual world included art, secular literature, law, and medicine. there were about 90 physicians. the center of government was a collection of tenants-in-chief, whose feudal duty included attendance when summoned, and certain selected household servants of the king. the exchequer became a separate body. the payments in kind, such as grain or manual services, from the royal demesnes had been turned into money payments. the great barons made their payments directly to the exchequer. the income from royal estates was received by the exchequer and then commingled with the other funds. each payment was indicated by notches on a stick, which was then split so that the payer and the receiver each had a half showing the notches. the exchequer was the great school for training statesmen, justices, and bishops. the chancellor managed the domestic matters of the crown's castles and lands. the great offices of state were sold for thousands of pounds, which caused their holders to be on their best behavior for fear of losing their money by being discharged from office. one chancellor paid henry about 3000 pounds for the office. henry brought sheriffs under his strict control, free from influence by the barons. he maintained order with a strong hand, but was no more severe than his security demanded. forests were still retained by kings for their hunting of boars and stags. a master forester maintained them. the boundaries of the royal forests were enlarged. they comprised almost one-third of the kingdom. certain inhabitants thereof supplied the royal foresters with meat and drink and received certain easements and rights of common therein. the forest law reached the extreme of severity and cruelty under henry i. punishments given included blinding, emasculation, and execution. offenders were rarely allowed to substitute a money payment. when fines were imposed they were heavy. a substantial number of barons and monasteries were heavily in debt to the jews. the interest rate was 43% (2d. per pound per week). the king taxed the jews at will. the law henry restored the death penalty (by hanging) for theft and robbery, but maintained william i's punishment of mutilation by blinding and severing of limbs for other offenses, for example, bad money. he decreed in 1108 that false and bad money should be amended, so that he who was caught passing bad denarii should not escape by redeeming himself but should lose his eyes and members. and since denarii were often picked out, bent, broken, and refused, he decreed that no denarius or obol, which he said were to be round, or even a quadrans, if it were whole, should be refused. (money then reached a higher level of perfection, which was maintained for the next century.) counterfeiting law required that "if any one be caught carrying false coin, the reeve shall give the bad money to the king however much there is, and it shall be charged in the render of his farm [payment] as good, and the body of the offender shall be handed over to the king for judgment, and the serjeants who took him shall have his clothes." the forest law stated that: "he that doth hunt a wild beast and doth make him pant, shall pay 10 shillings: if he be a freeman, then he shall pay double. if he be a bound man, he shall lose his skin." a "verderer" was responsible for enforcing this law, which also stated that: "if anyone does offer force to a verderer, if he be a freeman, he shall lose his freedom, and all that he hath. and if he be a villein, he shall lose his right hand." further, "if such an offender does offend so again, he shall lose his life." a wife's dower is one-third of all her husband's freehold land, unless his endowment of her at their marriage was less than onethird. debts to townsmen were recoverable by this law: "if a burgess has a gage [a valuable object held as security for carrying out an agreement] for money lent and holds this for a whole year and a day, and the debtor will not deny the debt or deliver the gage, and this is proved, the burgess may sell the gage before good witnesses for as much as he can, and deduct his money from the sum. if any money is over he shall return it to the debtor. but if there is not enough to pay him, he shall take distress again for the amount that is lacking." past due rent in a borough was punishable by payment of 10s. as fine. judicial activity encouraged the recording of royal legislation in writing which both looked to the past and attempted to set down law current in henry's own day in the leges henrici primi. this showed an awareness of the ideal of written law as a statement of judicial principles as well as of the practice of kingship. in this way, concepts of roman law used by the normans found their way into english law. the laws of henry i in the leges henrici primi have as subjects judicial procedure, proper judging, conduct of people involved in litigation, litigation procedure, required witnesses, evidence, credibility, quotes from legal references, oaths, perjury, geographical divisions of england, court sessions and attendance, order of court proceedings, adjournments, frankpledge, strangers, types of causes and their manner of hearing, royal jurisdiction, ecclesiastical pleas of the king, offenses, compensations, penalties, reliefs, the king's peace, forest pleas, exculpation, soke, jurisdiction of royal judges, the king's judges, summons, oathhelpers, transfer of cases, trials of pleas, unjust judgments, sureties, lords who sue, accusations, court procedure, pleadings, postponements, record of proceedings, failure to appear, counsel, summoning the hundred, summoning the county court, distraints, partners of common property, rights of jurisdiction of a lord over his man, holdings in farm, disputes between neighbors, trial by battle, slaves, pleas between a lord's reeve and those who are subject to him, suits by royal judges, wergelds, murdrum fine, letting go of a thief, slaying of or by a cleric, confessions, men of ill repute, ordeals, compensations, bondmen, intent, inheritance, dowries, homicide by magicians, definition of homicide, killing one's lord, foreigners, debtors, illegitimacy, foundlings, the king's peace, homicide in the king's court, royal highways, self-defense, drinking assemblies, mutual enemies, leading into wrong-doing, lent arms, marauders, weapons, killing a relative, pledge, negligence, and wounds to body parts. a sampling of the laws of henry i follows: "these are the jurisdictional rights which the king of england has in his land solely and over all men, reserved through a proper ordering of peace and security: breach of the king's peace given by his hand or writ; danegeld; the pleas of contempt of his writs or commands; the death or injury of his servants wherever occurring; breach of fealty and treason; any contempt or slander of him; fortifications consisting of three walls; outlawry; theft punishable by death; murdrum; counterfeiting his coinage; arson; hamsocn [breach of the right of security and privacy in a man's house by forcible entry into it]; forestel [attacking an enemy unexpectedly or lying in wait for him on the road and attacking him] passenger on the king's highway]; fyrding [action regarding the military array or land force of the whole country]; flymenfyrm [the reception or relief of a fugitive or outlaw]; premeditated assault; robbery; stretbreche [destroying a road by closing it off or diverting it or digging it up]; unlawful appropriation of the king's land or money; treasure-trove; wreck of the sea; things cast up by the sea; rape; abduction; forests; the reliefs of barons; fighting in the king's dwelling or household; breach of the peace in the king's troop; failure to perform burgbot [a contribution to the repair of castles or walls of defense, or of a borough]; or brigbot [a tribute or contribution to the repair of bridges]; or firdfare [a summoning forth to a military expedition]; receiving and maintaining an excommunicated person or an outlaw; violation of the king's protection; flight in a military or naval battle; false judgment; failure of justice; violation of the king's law." "some pleas cannot be compensated for with money; these are: husbreche [housebreaking or burglary], arson, manifest theft, palpable murder, treachery towards one's lord, and violation of the peace of the church or the protection of the king through the commission of homicide." "compensation is effected by the payment of one hundred shillings for the following: grithbreche [breach of the peace], stretbreche, forestel, violation of the king's protection, hamsocn, and flymenfyrm." hamsocn is an attack on a house and occurs if anyone assaults another in his own house or the house of someone else with a band of men or pursues him so that he hits the door or the house with arrows or stones or produces a perceptible blow from any source. it also is committed if anyone goes with premeditation to a house where he knows his enemy to be and attacks him there, whether he does this by day or by night. it also occurs if anyone pursues a person fleeing into a mill or sheephold. if in a court of house dissension has arisen and fighting follows as well, and someone pursues another person fleeing into the other house, it shall be considered hamsocn if there are two roofs there. the following place a man in the king's mercy: breach of his peace which he gives to anyone by his own hand; contempt of his writs and anything which slanders injuriously his own person or his commands; causing the death of his servants in a town or fortress or anywhere else; breach of fealty and treason; contempt of him; construction of fortifications without permission; the incurring of outlawry (anyone who suffers this shall fall into the king's hand, and if he has any bocland [lands held by deed or other written evidence of title]; manifest theft punishable by death." if any englishman is slain without fault on his part, compensation shall be paid to his relatives according to this wergeld. wite and manbot shall be paid to the appropriate lords in accordance with the amount of the wergeld. where a wergeld of 200s. is payable, then 30s. must be paid as manbot, which equals 5 mancuses; where the wergeld is 1200s., that is, for a thegn, the manbot is 120s, which amounts to 20 mancuses. "for the oath of a thegn equals the oaths of six villeins; if he is killed he is fully avenged by the slaying of six villeins and if compensation is paid for him, his wergeld is the wergeld for six villeins." some freemen are 200 men, some 600 men, and others 1200 men. a 200 man has a wergeld of 200s., which equal 4 pounds. a 1200 man is a person of noble rank, that is, a thegn, whose wergeld is 1200s., which equal 25 pounds. his healsfang is 120s., which today equals 50s. (40 sheep are worth 20s., as is one horse.) homicide by a magical potion or witchcraft or sorcery practiced with images or by any kind of enchantment cannot be compensated. if the bewitched person does not die, but suffers some change of the skin or demonstrable physical sickness, compensation shall be paid as prescribed by the ancient provisions of wise men, in accordance with the circumstances. "if anyone kills his lord, then if in his guilt he is seized, he shall in no manner redeem himself but shall be condemned to scalping or disemboweling or to human punishment which in the end is so harsh that while enduring the dreadful agonies of his tortures and the miseries of his vile manner of death he may appear to have yielded up his wretched life before in fact he has won an end to his sufferings, and so that he may declare, if it were possible, that he had found more mercy in hell than had been shown to him on earth." "if anyone kills his man without his having merited death, he shall just the same pay compensation for him to his relatives according to the amount of his wergeld, because the man was his to render service, not to be killed." "a person who breaks the king's peace which he confers on anyone with his own hand shall, if he is seized, suffer the loss of his limbs." "if anyone has the king's peace given by the sheriff or other official and a breach of it is committed against him, then this is a case of grithbreche and compensation of one hundred shillings shall be paid, if settlement can be effected by payment of compensation." "on whosoever's land a slaying takes place, the lord who has his rights of soke and sake shall, if the slayer, when caught on the spot, is released on providing security or is detained after being charged, receive the fihtwite." if anyone is slain in an attack by a band of marauders, the slayer shall pay the wergeld to the relatives, and manbot to the lord, and all who were present shall pay hlothbot, that is to say, they shall pay compensation of 30s. for a 200 man, 60s. for a 600 man, and 120s. for a 1200 man. in the case of every payment of wergeld for a slaying, two parts are the responsibility of the paternal kindred, and one third part is the responsibility of the maternal kin. if the kindred of a man who slays another abandons him and will not pay compensation for him, then all the kindred shall be free from the feud except the wrongdoer alone, if they thereafter provide him with neither food nor protection. "if a woman commits homicide, vengeance shall be taken against her or her descendants or her blood relatives (or she shall pay compensation for it), not against her husband or his innocent household." amends shall nonetheless be made whether these things are done intentionally or unintentionally. however, the possibility of a friendly settlement or of clemency is to be treated as the more likely or the more remote depending on the degree of blame attaching to the person who has been slain, and according to the circumstances. if a woman is slain, compensation is to be paid according to her wergeld, which is decided by her paternal relationship. the manbot shall be determined by the standing of the lord. "any person may aid his lord without incurring a wite if anyone attacks him, and may obey him in all lawful matters except in the case of breach of feudal loyalty, theft, murder, and similar offences, the commission of which has in absolutely no way been permitted, and which are branded as crimes by the laws." in the same way a lord must in the appropriate circumstances keep his man with advice as well as support, and may do so in all ways without penalty. "anyone who fights in the king's dwelling shall forfeit his life." "if anyone commits the offence of blodwite [an amercement for bloodshed], fihtwite [a fine for making a quarrel to the disturbance of the peace], legerwite [fine for unlawful cohabitation], or anything of that nature, and he escapes from the scene without being obliged to provide security for future appearance in court or without a charge being laid there, the jurisdiction at law belongs to his own lord." infiht or insocna is the offense committed by those who are living in community in a house; this is compensated for by a payment of the wite to the head of the household, if he has jurisdiction over accuser and accused. if anyone leaps to arms and disturbs the peace of a house, but does not strike anyone, his liability is half the penalty. compensation for wounds are as follows: on the head if both bones have been pierced 30s.; on the head if only the outer bone has been pierced 15s.; a wound under the hair one inch long 5d., that is, 1s.; a wound in front of the hair 10d, that is 2s.; injury to the throat 12s.; injury on the neck causing a curvature or stiffness or a lasting disability 100s. plus whatever has been paid out for medical treatment.; external injury to the hand 20s.; if half the hand flies off 60s.; rib broken but the skin remains whole 10s.; rib broken and the skin is broken and the bone is drawn out 15s.; loss of any eye or hand or foot or tongue 66s.6d. and a third part of a penny; loss of sight but with the eye remaining in the head 22s.2d.; wound on the shoulder if the person lives 80s.; shoulder wound so that the fluid from the joints runs out 30s.; shoulder maimed 20s.; an injury within a shoulder so that a bone is drawn out 15s.; arm broken above the elbow 15s.; both bones in the arm broken 30s.; arm cut off below the elbow 80s.; wound in the belly 30s.; pierced through the belly 20s. for each opening; a thigh pierced or broken 30s.; shin struck off below the knee 80s.; the shin broken 30s.; shin pierced below the knee 12s.; broken shinbone 12s.; wound in the genitals so that there is loss of the capacity to procreate 80s.; loins maimed 60s.; loins pierced through 30s.; loins punctured 15s.; injury to the great sinews of another's lower leg if they recover through response to medical treatment 12s.; injury to the sinews which cauces lameness 30s.; injury to the small sinews 6s.; striking a blow without causing blood to flow 5d. for each blow up to a total of three blows, no matter how many blows are actually struck, for a total of 15d.; knocking out first teeth or incisors 8s.; canines or `cheek' teeth 4s.; molars 15s.; broken cheeks 15s.; a thumb cut off 30s.; a thumbnail cut off 5s.; an index finger 15s; an index fingernail 3s.; a middle or `unchaste' finger 121s; a middle fingernail 2s.; a ring finger or `medical' finger 17s.; a ring fingernail 4s.; an `ear' finger 9s.; an `ear' fingernail 1s., that is 5d.; the big toe cut off 20s.; the second toe 15s.; the third toe 9s.; the fourth toe 6s., the fifth toe 5s.; "if anyone suffers a wound, not involving the cutting off or maiming or breaking of a limb, on an uncovered and visible place (for example, in front of the hair or below the sleeve or beneath the knees), the compensation to be paid shall be double what would be due in the case of a wound inflicted on the head under the hair or on the limbs beneath the clothes, that is, on a concealed place." "anyone who commits a theft, who betrays his lord, who deserts him in a hostile encounter or military engagement, who is defeated in trial by battle or who commits a breach of the feudal bond shall forfeit his land." in the case of stolen property worth more than 30d., the accused shall choose which of the two he wishes, either the simple ordeal or an oath of the value of one pound with oath helpers taken from three hundreds. "if anyone dares to dig up or despoil, in scandalous and criminal fashion, a body buried in the ground or in a coffin or a rock or a pyramid or any structure, he shall be regarded as an outlaw." "if a person condemned to death wishes to confess, it shall never be refused him." "if anyone who is a father dies and leaves as son or daughter to inherit, they shall not maintain an action or submit to a court judgment before reaching fifteen years of age; but they shall remain seised, under guardians and trustees in the lawful custody of their relatives, just as their father was on the day when he was alive and dead." "if anyone dies without children, his father or mother shall succeed to the inheritance, or his brother or sister, if neither father nor mother is living." if he does not possess these relatives, then his father's or mother's sister, and thereafter relatives up to the fifth `joint', whoever are the nearest in relationship, shall succeed by the law of inheritance. while the male line subsists, and the inheritance descends from that side, a woman shall not succeed. "the first born son shall have the father's ancestral fee' the latter shall give any purchases or subsequent acquisitions of his to whomever he pleases." if a person has bocland which his kinsmen have left him, he shall not dispose of it outside his kindred. "if a wife survives her husband she shall have in permanent ownership her dowry and her maritagium which had been settled on her by written documents or in the presence of witnesses and her morning-gift and a third part of all their jointly acquired property in addition to her clothing and her bed." "if a woman dies without children, her blood relatives shall divide up her share with her husband." a man may fight against as person whom he finds with his wedded wife, after the second or third prohibition, behind closed doors or under the one covering, or with his daughter whom he begot on his wife, or with his sister who was legitimately born, or with his mother who was lawfully wedded to his father. there is pecuniary compensation if a married woman commits fornication and she is of the rank of ceorl or belongs to the 600s. class or the 1200s. class, and physical mutilation has been prescribed for those persisting in the offence. "women who commit fornication and destroy their embryos, and those who are accessories with them, so that they abort the foetus from the womb, are by an ancient ordinance excommunicated from the church until death." a milder provision has now been introduced: they shall do penance for ten years. "if anyone kills or while sleeping crushes another person's child who has been entrusted to him for rearing or instruction, he shall pay compensation for him just as if he had killed an adult person." the county meetings shall be attended by the bishops, earls, sheriffs, deputies, hundredmen, aldermen, stewards, reeves, barons, vavassors [those who hold of a baron], village reeves, and the other lords of lands who shall with diligence see to it that failure to punish evildoers or the viciousness of officials or the corruption of judges shall not destroy those suffering under their accustomed afflictions. every cause shall be determined in the hundred court or county court or the hallmoot of those who have soke or in the courts of feudal lords or in the boundary courts of feudal equals or as it pertains to established places for court proceedings. "in the case of soke of pleas, some of these profits belong peculiarly and exclusively to the royal treasury, some are shared by it with others, some belong to the sheriffs and royal officials in their farm, and some belong to the lords who have soke and sake." "the king's judges shall be the barons of the county and those who hold free lands in the counties, by whom the causes and of individuals must be dealt with by the presentation in turn of complaint and defense." anyone who violates or subverts the written law shall forfeit his wergeld on the first occasion; on the second occasion the penalty is twice the wergeld; and anyone who ventures to do it a third time shall lose whatever he possesses. "each person is to be judged by men who are of equal status and from the same district as himself." "no one of high status shall be condemned by the judgment of lesser men." "whoever gives an unjust judgment shall forfeit one hundred and twenty shillings and shall lose his judicial authority unless he redeems it from the king." if there are contrary opinions among the judges in serious pleas, the decision of the most substantial men and that with which the royal justice has concurred shall prevail. "some persons are slaves by birth, others become slaves subsequently; of the latter, some are enslaved by purchase, some by way of satisfaction for an offence, some give themselves in slavery or are given by another person, and some become slave by falling under any other classifications, all of which we may wish nevertheless to be included in that one category of slavery, for which we propound the description `accident' so that the position has been expressed in this way: some are slaves by accident, others by birth." church law provided that only consent between a man and woman was necessary for marriage. there needn't be witnesses, ceremony, nor consummation. consent could not be coerced. penalties in marriage agreements for not going through with the marriage were deemed invalid. villeins and slaves could marry without their lords' or owners' permission. a couple living together could be deemed married. persons related by blood within certain degrees, which changed over time, of consanguinity were forbidden to marry. this was the only ground for annulment of a marriage. a legal separation could be given for adultery, cruelty, or heresy. annulment, but not separation, could result in remarriage. fathers were usually ordered to provide some sustenance and support for their illegitimate children. the court punished infanticide and abortion. counterfeiters of money, arsonists, and robbers of pilgrims and merchants were to be excommunicated. church sanctuary was to be given to fugitives of violent feuds until they could be given a fair trial. judicial procedure courts extant now are the royal court, the king's court of the exchequer, county courts, and hundred courts, all of which were under the control of the king. his appointed justices administered justice in these courts on regular circuits. instead of being the presiding official at the county court, the sheriff now only produced the proper people and preserved order at the county courts and presided over the nonroyal pleas and hundred courts. he impaneled recognitors, made arrests, and enforced the decisions of the royal courts. also there are manor courts, borough courts, and ecclesiastical courts. in the manor courts, the lord's reeve generally presided. the court consisted of the lord's vassals and declared the customs and law concerning such offenses as failure to perform services and trespass on manorial woods, meadow, and pasture. the king's royal court heard issues concerning the crown and breaches of the king's peace, which included almost all criminal matters: murder, robbery, rape, abduction, arson, treason, breach of fealty, housebreaking, ambush, certain kinds of theft, premeditated assault, and harboring outlaws or excommunicants. henry personally presided over hearings of important legal cases. he punished crime severely. he hanged homicides, exiled traitors, and frequenly used loss of hand and foot. in comparison, william had no one hanged, but used emasculation and exoculation frequently. offenders were brought to justice not only by the complaint of an individual or local community action, but by official prosecutors. a prosecutor was now at trials as well as a justice. trial is still mostly by compurgation but trial by combat was relatively common. these offenses against the king placed merely personal property and sometimes land at the king's mercy. thus the crown increased the range of offenses subject to its jurisdiction and arrogated to itself profits from the penalties imposed. the death penalty could be imposed for murder and replaced the old wergeld. but a murderer could be given royal pardon from the death penalty so that he could pay compensation to the relatives. the royal court also heard these offenses against the king: fighting in his dwelling, contempt of his writs or commands, encompassing the death or injury of his servants, contempt or slander of the king, and violation of his protection or his law. it heard these offenses against royal authority: complaints of default of justice or unjust judgment, pleas of shipwrecks, coinage, treasure trove [money buried when danger approached], forest prerogatives, and control of castle building. slander of the king, the government, or high officials was punishable as treason, felony, misprision of treason, or contempt, depending on the rank and office of the person slandered and the degree of guilt. henry began the use of writs to intervene in civil matters such as inquiry by oath and recognition of rights as to land, the obligations of tenure, the legitimacy of heirs, and the enforcement of local justice. writs were requested by people who wanted to come to the royal court. the royal court used its superior coercive power to enforce the legal decisions of the county, hundred, and private courts. it also reviewed miscarriages of justice and unlawful procedures in these courts. there was a vigorous interventionism in the land law subsequent to appeals to the king in landlord-tenant relations, brought by a lord or by an undertenant. assizes [those who sit together] of local people who knew relevant facts were put together to assist the court. henry appointed some locally based justices. also, he sent justices from the royal court out on eyres [journeys] to hold assizes. this was done at special sessions of the county courts, hundred courts, and manor courts. records of the verdicts of the royal court were sent with these itinerant justices for use as precedent in these courts. thus royal authority was brought into the localities and served to check baronial power over the common people. these itinerant justices also transacted the local business of the exchequer in each county. henry created the office of chief justiciar, which carried out judicial and administrative functions and could travel anywhere in the country and make legal decisions in the king's name. the royal court retained cases of gaol delivery [arrested person who had been held in gaol was delivered to the court] and amercements [discretionary money payments which took the place of the old wites]. it also decided cases in which the powers of the popular courts had been exhausted or had failed to do justice. the royal court also decided land disputes between barons who were too strong to submit to the county courts. the king's court of the exchequer reviewed the accounts of sheriffs, including receipts and expenditures on the crown's behalf as well as sums due to the treasury, located still at winchester. these sums included rent from royal estates, the danegeld land tax, the fines from local courts, and aid from baronial estates. its records were the "pipe rolls", so named because sheets of parchment were fastened at the top, each of which dropped into a roll at the bottom and so assumed the shape of a pipe. the county and hundred courts assessed the personal property of individuals and their taxes due to the king. the county court decided land disputes between people who had different barons as their respective lords. the free landholders were expected to attend county, hundred, and manor courts. they owed "suit" to it. the suitors found the dooms [laws] by which the presiding officer pronounced the sentence. the county courts heard cases of theft, brawling, beating, and wounding, for which the penalties could be exposure in the pillory or stocks. the pillory held an offender's head and hands in holes in boards, and the stocks held one's hands and feet. here the public could scorn and hit the offender or throw fruit, mud, and dead cats at him. for sex offenders and informers, stones were usually thrown. sometimes a person was stoned to death. damages in money replaced the old bots. the county courts met twice yearly. if an accused failed to appear after four successive county courts, he was declared outlaw at the fifth and forfeited his civil rights and all his property. he could be slain by anyone at will. the hundred court met once a month to hear neighborhood disputes, for instance concerning pastures, meadows and harvests. usually present was a priest, the reeve, four representative men, and sometimes the lord or his steward in his place. sometimes the chief pledges were present to represent all the men in their respective frankpledges. the bailiff presided over all these sessions except two, in which the sheriff presided over the full hundred court to take the view of frankpledge, which was required for those who did not have a lord to answer for him. the barons held court on their manors at a "hallmote" for issues arising between people living on the manor, such as bad ploughing on the lord's land or letting a cow get loose on the lord's land, and land disputes. this court also made the decision of whether a certain person was a villein or freeman. the manor court took over issues which had once been heard in the vill or hundred court. the baron charged a fee for hearing a case and received any fines he imposed, which amounted to significant "profits of justice". boroughs held court on trading and marketing issues in their towns such as measures and weights, as well as issues between people who lived in the borough. the borough court was presided over by a reeve who was a burgess as well as a royal official. wealthy men could employ professional pleader-attorneys to advise them and to speak for them in a court. the ecclesiastical courts, until the time when henry viii took over the church, dealt with family matters such as marriage, annulments, marriage portions and settlements of money or goods, legitimacy, undue wifebeating, child abuse, orphans, bigamy, adultery, incest, fornication, and separations between husband and wife. there were no divorces. they also dealt during this time with drunkenness, personal possessions, defamation, slander which did not cause material loss (and therefore had no remedy in the temporal courts), libel, perjury, usury, mortuaries [the second best beast or fees at death], sacrilege, sorcery, witchcraft, blasphemy [speaking ill of god], heresy [a belief by a baptized person that is knowingly contrary to the doctrine of the church], tithe payments, oblations for performing the eucharist including expenses for the bread and wine, church fees such as for the clergy and the poor, simony [buying or selling ecclesiastical preferment or pardons], pensions, certain offenses on consecrated ground, and breaches of promises under oath, e.g. to pay a debt, provide services, or deliver goods. they decided inheritance and will issues which did not concern land, but only personal property. this developed from the practice of a priest usually hearing a dying person's will as to the disposition of his goods and chattel when he made his last confession. so the church court came to determine the validity of wills, interpret them, regulate their created testamentary executors, and determine the legatees. it also came to determine intestate matters. it provided guardianship of infants during probate of their personal property. trial was first by compurgation, with oath-helpers swearing to or against the veracity of the alleged offender's oath. the ecclesiastical court's penalties were intended to reform and determined on a case-by-case basis. the canon law of christendom was followed, without much change by the english church or nation. a penitent who was sincerely contrite was first expected to confess his sin to a priest, who gave him god's forgiveness. this removed the guilt of the sin and eternal punishment in hell. but then justice required a "satisfaction", which could be met in this world or in the next. accordingly, the priest or ecclesiastical court then imposed a "penance", i.e. some act of a religious nature. penance could include confession and public repentance of the sin before the parish, making apologies and reparation to persons affected, public embarrassment such as being dunked in water (e.g. for women scolds), walking a route barefoot and clad only in one's underwear, whippings, extra work, fasting, vigils, prayers for help to live righteously, reading, meditation, solitary life, a diet of bread and water for a specified time, fines, gifts to the church, alms to the poor, various kinds of good deeds, and imprisonment in a "penitentiary". for more serious sins, there could be a long fast, a diet of bread and water for a number of years, or a distant pilgrimage, for instance to rome or jerusalem. for those whose penance was incomplete at the time of their death, there was a temporary state of purgatory wherein some sort of suffering fulflled the remaining debt. souls in purgatory could be aided by the prayers of the faithful on earth. the truly penitent could hope for the remission of all or part of their purgation by obtaining an indulgence from a higher authority than the priest. the ultimate penalty of the church was excommunication, a social ostracism in which no one could give the person drink, food, or shelter and he could speak only to his spouse and servants. excommunication included denial of the sacraments of baptism, penance, mass [lord's supper}, and extreme unction [prayers for spiritual healing] at death; which were necessary for salvation of the soul; and the sacrament of confirmation. a person could also be denied a christian burial in consecrated ground. however, the person could still marry and make a will. the purpose of excommunication was to restore the person to spiritual health rather than to punish him. excommunication was usually imposed for failure to obey an order or for showing contempt of the law or of the courts. it required a hearing and a written reason. the king's court could order a recalcitrant excommunicant imprisoned until he satisfied the claims of the church. if this measure failed, it was possible to turn the offender over to the state for punishment, e.g. for blasphemy or heresy. blasphemy was thought to cause god's wrath expressed in famine, pestilence, and earthquake and was usually punished by a fine or corporal punishment, e.g. perforation or amputation of the tongue. it was tacitly understood that the punishment for heresy was death by burning. there were no heresy cases up to 1400 and few after that. the state usually assured itself the sentence was just before imposing it. the court of the rural dean was the ecclesiastical parallel of the hundred court of secular jurisdiction and usually had the same land boundaries. the archdeacons, who had been ministers of the bishop in all parts of his diocese alike, were now each assigned to one district, which usually had the same boundaries as the county. each bishop headed a diocese. over the bishops were the two archbishops of canterbury and of york. the ecclesiastical court had one judge and no jury. most cases dealt with offenses against the church, such as working on sunday, and sexual mores. the court used teatimony and depositions of witnesses, oaths of the parties, confessions, physical and written evidence, presumptions of common knowledge, and inquests of impartial, sworn men who made unanimous determinations. the accuser had to meet the burden of proof. the accused could be required to answer questions under oath, thus giving evidence against himself. it was not necessary to have an accuser; a judge could open a case based on public rumor. the judge made a written decision that did not incude his reasoning. he read the decision aloud in a public session of the court. if an accused disobeyed a court order to appear or to do penance, he could be excommunicated. common law held that ecclesiastical courts could not give money damages. but costs were paid by the loser and included expenses of producing witnesses, writing of documents, and fees of lawyers. an appeal could be made from the archdeacon to the bishop to the metropolitan to the pope. henry acknowledged occasional appellate authority of the pope, but expected his clergy to elect bishops of his choice. there was a separate judicial system for the laws of the forest. there were itinerant justices of the forests and four verderers of each forest county, who were elected by the votes of the full county court, twelve knights appointed to keep vert [everything bearing green leaves] and venison, and foresters of the king and of the lords who had lands within the limits of the forests. every three years, the officers visited the forests in preparation for the courts of the forest held by the itinerant justices. the inferior courts were the woodmote, held every forty days, and the swein [freeman or freeholder within the forest] mote, held three times yearly before the verderers as justices, in which all who were obliged to attend as suitors of the county court to serve on juries and inquests were to be present. in this lawsuit, king henry i decided that since the abbots and monks of battle had proved before him that certain lands, belonging to the manor of alciston, are no possession of theirs, so they are to be quit of the services due there: " henry, king of the english, to ralph, bishop of chichester, and all his ministers of sussex, greeting. know that as the abbot of battle and the monks deraigned [proved] before me that they do not have those lands which you said they had, namely, ovington, coding ( in hove), batsford (in warbleton), daningawurde, shuyswell ( in etchingham), boarzell ( in ticehurst), winenham, wertesce, brembreshoc and seuredeswelle, which of old belonged to alciston and contain seven hides of land of the fifty hides in alciston and its appurtenances, i order that they shall be free and quit on this account and that none shall molest them any further, but concerning these lands and these hides they shall be completely free and quit as concerning lands which they do not have and of which they are not seised. i also order by royal authority that their manor called alciston, which my father gave to the church of battle with other lands for his soul, shall be so free and quit of shires and hundreds and all customs of land-service as my father himself held it most freely and quietly, and namely concerning the work on london bridge and on the castle of pevensey. this i command upon my forfeiture. witness: william de pont de l'arche. at westbourne. in this lawsuit, king henry i ordered a bishop and sheriff to put another bishop in possession of certain churches according to the verdict of twelve men: " henry, by god's grace, etc. to h(erbert), bishop of norwich, and robert the sheriff, greeting. i order that you let richard, bishop of london, have the churches of blythburgh and stowe with all the customs that belong to them as twelve among the better men of the hundred will be able to swear and as i ordered in my other writ. and let this not be left undone because of my voyage to normandy, and let him hold them in peace and honour with suit, soke, toll and team and infangthief and with all other customs, as ever any of my predecessors most honourably and most quietly held them. witness, etc." in this lawsuit, king henry i grants that an abbot should continue to have his mint after his moneyer suffered punishment like all the others in england: "henry, king of the english, to everard bishop of norwich, robert fitz walter and all his barons and lieges, french and english, of suffolk, greeting. i grant that, justice having been done to his moneyer as was done to the other moneyers of england, the abbot of st. edmunds shall have in the vill of st. edmunds his mint, moneyer and exchange as he used to have it before. witnesses: (john), bishop of lisieux, (bernard), bishop of st. david's and robert de sigillo, at rouen." in this lawsuit, king henry i held proven the ownership of certain wood and land: "henry, king of the english, to the bishop of lincoln and the sheriff and the barons and faithful, french and english, of bedfordshire, greeting. know that abbot reginald of ramsey has deraigned in my court to the advantage of the church of ramsey the wood of crawley and the land pertaining to it against simon de beauchamp, about which they were in dispute, and the aforesaid abbot gave to simon 20 marks of silver and two palfreys [riding horses] so that simon granted them to him out of goodwill and gave up his claim. and i will and firmly order that the aforesaid church of ramsey shall hold that wood and the aforesaid land belonging to the wood well and in peace, honourably and by perpetual right. witnesses: bishop roger of salisbury and bishop alexander of lincoln, king david of scotland, geoffrey the chancellor, earl robert of leicester, adam de port, hugh bigod, william d'aubigny the butler, geoffrey de clinton, william of d'aubigny brito." chapter 6 the times: 1154-1215 king henry ii and queen eleanor, who was twelve years older, were both intelligent, educated, energetic, well-traveled, and experienced in affairs of state. henry was the first norman king to be fully literate and he learned latin. he had many books and maintained a school. eleanor often served as regent during henry's reign and the reigns of their two sons: richard i, the lionhearted, and john. she herself headed armies. henry ii was a modest, courteous, and patient man with an astonishing memory and strong personality. he was indifferent to rank and impatient of pomp to the point of being careless about his appearance. he usually dressed in riding clothes and was often unkempt. he was thrifty, but generous to the poor. he was an outstanding legislator and administrator. henry ii took the same coronation oath as edward the confessor regarding the church, laws, and justice. not only did he confirm the charter of his grandfather henry i, but he revived and augmented the laws and institutions of his grandfather and developed them to a new perfection. almost all legal and fiscal institutions appear in their first effective form during his reign. for instance, he institutionalized the assize for a specific function in judicial proceedings, whereas before it had been an ad hoc body used for various purposes. the term "assize" here means the sitting of a court or council. it came to denote the decisions, enactments, or instructions made at such. henry's government practiced a strict economy and he never exploited the growing wealth of the nation. he abhorred bloodshed and the sacrifice of men's lives. so he strove diligently to keep the peace, when possible by gifts of money, but otherwise with armed force. robbers were hanged and any man who raped a woman was castrated. foreign merchants with precious goods could journey safely through the land from fair to fair. these fairs were usually held in the early fall, after harvesting and sheep shearing. foreign merchants bought wool cloth and hides. frankpledge was revived, now applying to the unfree and villeins. no stranger could stay overnight (except for one night in a borough), unless sureties were given for his good behavior. a list of such strangers was to be given to itinerant justices. henry had character and the foresight to build up a centralized system of government that would survive him. he learned about the counties' and villages' varying laws and customs. then, using the model of roman law, he gave to english institutions that unity and system which in their casual patchwork development had been lacking. henry's government and courts forged permanent direct links between the king and his subjects which cut through the feudal structure of lords and vassals. he developed the methods and structure of government so that there was a great increase in the scope of administrative activity without a concurrent increase of personal power of the officials who discharged it. the government was self-regulating, with methods of accounting and control which meant that no official, however exalted, could entirely escape the surveillance of his colleagues and the king. at the same time, administrative and judicial procedures were perfected so that much which had previously required the king's personal attention was reduced to routine. the royal household translated the royal will into action. in the early 1100s, there had been very little machinery of central government that was not closely associated with the royal household. there was a chief justiciar for legal matters and a treasurer. royal government was largely built upon what had once been purely domestic offices. kings had called upon their chaplains to pen letters for them. by henry ii's reign, the chancery was a highly efficient writing office through which the king's will was expressed in a flow of writs, and the chancellor an important and highly rewarded official, but he was still responsible for organizing the services in the royal chapel. similarly, the chamberlains ran the household's financial departments. they arranged to have money brought in from a convenient castle treasury, collected money from sheriffs or the king's debtors, arranged loans with the usurers, and supervised the spending of it. it was spent for daily domestic needs, the king's almsgiving, and the mounting of a military campaign. but they were still responsible for personal attendance upon the king in his privy chamber, taking care of his valuable furs, jewels, and documents, and changing his bed linens. there were four other departments of the household. the steward presided over the hall and kitchens and was responsible for supplying the household and guests with food supplies. the butler had duties in the hall and cellars and was responsible for the supply of wine and ale. the marshall arranged lodgings for the king's court as it moved about from palaces to hunting lodges, arranged the pay of the household servants, and supervised the work of ushers, watchmen, fire tenders, messengers and huntsmen. the constable organized the bodyguard and escorts, arranged for the supply of castles, and mustered the royal army. the offices of steward, constable, chamberlain, butler were becoming confined to the household and hereditary. the justiciar, chancellor, and treasurer are becoming purely state offices. they were simply sold or rented, until public pressure resulted in a requirement of ability. henry's council included all his tenants-in-chief, which included archbishops, bishops, abbots, priors, earls, barons, knights and socage tenants of the crown, whether they made payments directly to him or through a sheriff. the higher ones were served with a writ addressed to them personally. knights and below were summoned by a general writ to the sheriff. henry brought order and unity by making the king's royal court the common court of the land. its purpose was to guard the king's peace by protecting all people of free status throughout the nation and correct the disparity in punishments given by local courts. the doctrine of felony developed, with punishment by death relacing the old wites. heretofore, the scope of the king's peace had varied to cover as little as the king's presence, his land, and his highway. the royal demesne had shrunk to about 5% of the land. the common law for all the nation was established by example of the king's royal court. henry erected a basic, rational framework for legal processes which drew from tradition but lent itself to continuous expansion and adaptation. a system of writs originated well-defined actions in the royal courts. each court writ had to satisfy specific conditions for this court to have jurisdiction over an action or event. this system determined the royal court's jurisdiction over the church, lords, and sheriffs. it limited the jurisdiction of all other courts and subordinated them to the royal court. inquests into any misdeeds of sheriffs were held, which could result in their dismissal. henry and eleanor spoke many languages and liked discussing law, philosophy, and history. so they gathered wise and learned men about them, who became known as courtiers, rather than people of social rank. they lived in the great and strong tower of london, which had been extended beyond the original white tower, as had other castles, so that the whole castle and grounds were defended instead of just the main building. the tower of london was in the custody of one of the two justiciars. on the west were two strongly fortified castles surrounded by a high and deeply entrenched wall, which had seven double gates. towers were spaced along the north wall and the thames river flowed below the south wall. to the west was the city, where royal friends had residences with adjoining gardens near the royal palace at westminster. the court was a center of culture as well as of government. the game of backgammon was played. people wore belts with buckles, usually brass, instead of knotting their belts. london extended about a mile along the thames and about half a mile inland. it had narrow twisting lanes, some with a ditch down the middle for water runoff. most of its houses were two stories, the ground floor having booths and workshops, and the upper floor living space. most of the houses were wooden structures. the richer merchants' and knights' houses were built of stone. walls between houses had to be stone to a height of 16 feet and thatched roofs were banned because there had been many fires. there was poor compliance, but some roofs were tiled with red brick tiles. the population was about 40,000. there were over 126 churches for public worship, thirteen monasteries (including nunneries), and st. paul's cathedral. all were built of stone. the churches gave a place of worship for every 300 inhabitants and celebrated feast days, gave alms and hospitality to strangers, confirmed betrothals or agreements of marriage, celebrated weddings, conducted funerals, and buried the dead. the synod of westminster of 1175 prescribed that all marriages were to be performed by the church. a bare exchange of words was sufficient to constitute a marriage. church law required a warning prior to suspension or excommunication. monastic, cathedral, and parish schools taught young boys grammar so they could sing and read in church services. nuns taught girls. fish but no meat was eaten on fridays. there was dark rye bread and expensive white wheat bread. vegetables included onions, leeks, and cabbage. fruits included apples, pears, plums, cherries, and strawberries. water was obtained from streams running through the town to the thames and from springs. only the rich, palaces, and churches could afford beeswax candles; others had homemade tallow [cow or sheep fat] candles which smelled and gave off smoke. most people washed their bodies. even the poor had beds and bed clothes. the beds were often shared. few babies survived childhood. if a man reached 30, he could expect to live until age 50. thousands of londoners died during a hot summer from fevers, plague and the like. in london, bells heralded the start and finish of all organized business. the sellers of merchandise and hirers of labor were distributed every morning into their several localities according to their trade. vendors, craftsmen, and laborers had their customary places. some vendors walked the streets announcing their wares for sale. there were craft guilds of bakers, butchers, cloth workers, and saddlers, as well as of weavers. vendors on the thames river bank sold cooked fish caught from the river and wine from ships and wine cellars. cook shops sold roasted meats covered with hotly spiced sauces. london bridge was built of stone for the first time. it was supported by a series of stone arches standing on small man-made islands. it had such a width that a row of wood houses and a chapel was built on top of it. in the spring it was impassable by ships because the flow of water under it varied in height on either side of the bridge by several feet at half tide. the bridge had the effect of slowing down the flow upstream, which invited wherries and rowboats and stately barges of the nobility. in winters in which it froze over, there was ice skating, ice boating, and fishing through holes in the ice. outside each city gate were clusters of ragged buildings, small monasteries and hostelries, groups of huntsmen's kennels, and fencing schools. outside one of the gates, a horse market was held every week. horses wore horseshoes made of iron or of a crude steel. from the southwest gate of the city along the north river bank toward westminster, there was a gradually extending line of rich men's mansions and bishops' palaces. on the southern bank of the thames river was growing the disorderly suburb of southwark, with fishermen's and boatmens' hovels, and taverns and brothels that were frequented by drunkards, rakes, and whores. on the north side of the city was a great forest with fields and wells where students and other young men from the city took walks in the fresh evening air. in some fields, country folk sold pigs, cows, oxen and sheep. mill wheels turned at various streams. near london in the country was a glass factory. at sunset, the gates of london were closed for the night. all taverns had to be closed, all lights put out, and all fires banked or covered when the bell of the church of st. martin le grand rang at 9:00 p.m. anyone found on the streets after this curfew could be arrested. gangs of young nobles or gangs of thieves, cutpurses, and looters roamed the streets after dark and sometimes rioted. offenders were often beheaded and their heads placed on spikes on london bridge. men in london had begun weaving cloth, which formerly had been done by women. some of the cloth was exported. the weavers guild of london received a charter by the king in 1155, the first granted to any london craft: "know that i have conceded to the weavers of london to hold their guild in london with all the liberties and customs which they had in the time of king henry [i], my grandfather; and that none may intermeddle with the craft within the city, nor in southwark, nor in other places pertaining to london except through them and except he be in their guild, otherwise than was accustomed to be done in the time of king henry, my grandfather ...so that each year they render thence to me two marks of gold at the feast of st. michael. and i forbid that any shall do injury or contumely to them on this account under penalty of 10 pounds [200s.]. witness t[homas], chancellor, and warinus, son of gerard, chamberlain, at winchester." the liberties obtained were: 1) the weavers may elect bailiffs to supervise the work of the craft, to punish defaulters, and to collect the ferm [amount owed to the king]. the bailiffs were chosen from year to year and swore before the mayor of london to do and keep their office well and truly. 2) the bailiffs may hold court from week to week on pleas of debt, agreements, covenants [promises for certain performance], and minor trespasses. 3) if any of the guild members are sued in any other court on any of the above pleas, the guild may challenge that plea to bring it to the guild court. 4) if any member is behind in his share of the payment to the king, the bailiffs may distrain his loom until he has paid this. the weavers' guild punished members who used bad thread in their weaving or did defective weaving by showing the default to the mayor, with opportunity for the workman to make entreaty, and the mayor and twelve members of the guild then made a verdict of amercement of 1/2 mark and the workman of the cloth was also punished by the guild bailiffs according to guild custom.the weavers' guild tradition of brotherliness among members meant that injury to a fellow weaver incurred a severe penalty. if a weaver stole or eloigned [removed them to a distance where they were unreachable] any other weaver's goods falsely and maliciously, then he was dismissed from the guild and his loom was taken by the guild to fulfill his portion of the annual payment to the king. the weavers were allowed to buy and to sell in london freely and quietly. they had all the rights of other freemen of the city. paying an annual payment freed the weavers from liability to inconsequent royal fines. failure to make this payment promptly might have led to loss of the right, hence the rigorous penalty of distraint upon the looms of individual weavers who fell into arrears. thus from the middle of the 1100s, the weavers enjoyed the monopoly of their craft, rights of supervision which ensured a high standard of workmanship, power to punish infractions of their privileges, and full control of their members. in this they stand as the prototype of english medieval guilds. these rights represented the standard which all bodies of craftsmen desired to attain. the right of independent jurisdiction was exceptional. in henry ii's charter to london, london did not retain its right to appoint its own sheriff and justice given by henry i. london's chief magistrate was the mayor, who was appointed by the king, until 1191. then the mayor was elected yearly by the aldermen of the city wards and approved by the king. he was typically a rich prince chosen by the barons and chief merchants of london. the commoners had no voice in his selection, but they could still approve or disapprove of the actions of the city government at ward and folk motes. at certain periods, a king asserted royal power over the selection of mayor and governance of the city. there were three ways to become a citizen of london: being the son of a citizen, apprenticeship in a craft for seven years, and purchase of citizenship. london and westminster growth led to their replacing winchester as the capital. st. barthomew infirmary was established in london for the care of sick pilgrims traveling to the shrine of becket in canterbury. it had been inspired by a monk who saw a vision of st. barthomew telling him to build a church and an infirmary. trading was facilitated by the stabilization of the amount of silver metallic content of the english coinage, which was called "sterling" [strong] silver. the compass, a magnetic lodestone [leading stone] needle mounted on a cork and floated in a bowl of water, assisted the navigation of ships. with it, one could tell the general direction of a ship when the skies were cloudy as well as clear. and one could generally track one's route by using the direction and speed of travel to calculate one's new position. london became a major trading center for foreign goods from many lands. about 5% of the knights were literate. wealthy men sent their sons to school in monasteries to prepare them for a livelihood in a profession or in trade or to the town of oxford, whose individual scholars had migrated from paris and had attracted disciples for a long time. these schools grew up around st. mary's church, but had not been started by the church as there was no cathedral school in oxford. oxford had started as a burh and had a royal residence and many tradesmen. it was given its basic charter in 1155 by the king. this confirmed to it all the customs, laws and liberties [rights] as those enjoyed by london. it became a model charter for other towns. bachelors at oxford studied the arts of grammar, rhetoric, and logic, and then music, arithmetic, geometry, and astronomy, until they mastered their discipline and therefore were authorized to teach it. teaching would then provide an income sufficient to support a wife. the master of arts was analogous to the master craftsman of a guild. from 1190, the civil law was studied, and shortly thereafter, canon law. later came the study of medicine. the use of paper supplemented the use of parchment for writing. irregular edged paper was made from linen, cotton, straw, and/or wood beaten to a pulp and then spread out over a wire mesh to dry. theologicians taught that the universe was made for the sake and service of man, so man was placed at the center of the universe. man was made for the sake and service of god. every freeman holding land of a lord gave homage and fealty to him, swearing to bear him faith of the tenement held and to preserve his earthly honor in all things, saving the faith owed to the king. homage was done for lands, for free tenements [including meadows, pastures, woods, and wastes], for services, and for rents precisely fixed in money or in kind. homage could be done to any free person, male or female, adult or minor, cleric or layman. a man could do several homages to different lords for different fees, but there had to be a chief homage to that lord of whom he held his chief tenement. homage was not due for dower, from the husband of a woman to whom a tenement was given as a marriage portion, for a fee given in free alms, or until the third heir, either for free maritagium [a marriage portion of land which is given with a daughter in marriage, that is not bound to service and passes to the daughter's heirs in whatever way had been stipulated by her family when the grant was made] or for the fee of younger sisters holding of the eldest. all fiefs to be inherited by the eldest son had to be intact. every lord could exact fealty from his servants. in this era, the english national race and character was formed. only a few barons still had lands in normandy. stories of good king arthur were popular and set ideals for behavior and justice in an otherwise barbaric age where force was supreme. his last battle in which he lay wounded and told a kinsman to rule in his place and uphold his laws was written in poem ("layamon's brut"). romantic stories were written and read in english. the custom of "bundling" was started by ladies with their knights, who would lie together in bed without undressing and with one in a sack the top of which was tied around his neck, as part of a romantic courtship. wealthy men often gave their daughters dowries in case they were widowed. this might be matched by a marriage settlement by a prospective husband. intermarriage had destroyed any distinction of normans by look or speech alone, except for the anglo-saxon manor villeins, who worked the farm land and composed about two-thirds of the population. villeins were bound to the land and could, on flight, be brought back to it. they could not give homage, but could give fealty. a villein had the equipment to farm, fish, make cheese, keep poultry, brew beer, hedge, and cut wood. although the villeins could not buy their freedom or be freed by their lord, they became less numerous because of the preference of landholders for tenants motivated to perform work by potential loss of tenure. also, the crown's protection of all its subjects in criminal matters blurred the distinction between free and unfree men. the boroughs were dominated by lords of local manors, who usually had a house in the borough. similarly, burgesses usually had farmland outside the borough. many boroughs were granted, by the king or manor lord, the right to have a common seal for the common business of the town. some boroughs were given the authority to confer freedom on the villein by enrolling him in their guild or allowing him to stay in the borough for a year and a day. the guilds met frequently in their drinking halls and drew up regulations for the management of their trade. each borough was represented by twelve reputable burgesses. each vill was represented by a reeve and four reputable men. certain towns sponsored great seasonal fairs for special goods, such as cloth. about 5% of the population lived in towns. in the early 1180s, the horizontal-axle windmill was invented, probably in eastern england, on the analogy of the horizontal-axle watermill. it was very useful in flat areas where streams were too slow for a watermill unless a dam were built. but a dam often flooded agricultural land. some watermill wheels were moved by tidal currents. london guilds of craftsmen such as weavers, fullers, bakers, loriners (makers of bits, spurs, and metal mountings of bridles and saddles), cordwainers (makers of leather goods such as shoes), pepperers, and goldsmiths were licensed by the king, for which they paid him a yearly fee. there were also five bridge guilds (probably raising money for the future construction of london bridge in stone) and st. lazarus' guild. the wealthy guilds, which included the goldsmiths, the pepperers, and three bridge guilds had landholding members who had been thegns or knights and now became a class of royal officials: the king's minters, his chamberlain, his takers of wines, his collectors of taxes. the weavers of oxford paid 27s. [two marks] to have a guild. the shoemakers paid 67s. [five marks]. in 1212, master carpenters, masons, and tilers made 3d. per day, their servers (the journeymen of a later time) made 1 1/2 d., free stone carvers 2 1/2 d., plasterers and daubers, diggers and sievers less. all received food in addition or 1 1/2 d. in its stead. sandwich was confirmed in its port rights by this charter: "henry ii to his sheriff and bailiffs of kent, greeting. i will and order that the monks of the holy trinity of canterbury shall have fully all those liberties and customs in sandwich which they had in the time of king henry my grandfather, as it was adjudged in pursuance of his command by the oath of twelve men of dover and twelve men of sandwich, to wit, that the aforesaid monks ought to have the port and the toll and all maritime customs in the same port, on either side of the water from eadburge gate as far as markesfliete and a ferryboat for passage. and no man has there any right except they and their ministers. wherefore i will and firmly command you and the men of sandwich that ye cause the aforesaid monks to have all their customs both in the port and in the town of sandwich, and i forbid any from vexing them on this account.and they shall have my firm peace." henry gave this charter to the town of bristol in 1164: "know ye, that i have granted to my burgesses of bristol, that they shall be quit both of toll [a reasonable sum of money or portion of the thing sold, due to the owner of the fair or market on the sale of things tollable therein. it was claimed by the lord of the fee where the fair or market was held, by virtue of a grant from the crown either ostensible or presumed] and passage [money paid for crossing a river or for crossing the sea as might be due to the crown] and all custom [customary payments] throughout my whole land of england, normandy, and wales, wherever they shall come, they and their goods. wherefore i will and strictly command, that they shall have all their liberties and acquittances and free customs fully and honorable, as my free and faithful men, and that they shall be quit of toll and passage and of every other customs: and i forbid any one to disturb them on this account contrary to this my charter, on forfeiture of ten pounds [200s.]." john, when he was an earl and before he became king, granted these liberties to bristol about 1188: 1) -no burgess may sue or be sued out of bristol. 2) -the burgesses are excused from the murdrum fine. 3) -no burgess may wage duel [trial by combat], unless sued for death of a stranger. 4) -no one may take possession of a lodging house by assignment or by livery of the marshall of the earl of gloucester against the will of the burgesses (so that the town would not be responsible for the good behavior of a stranger lodging in the town without first accepting the possessor of the lodging house). 5) -no one shall be condemned in a matter of money, unless -according to the law of the hundred, that is, forfeiture of 40s. 6) -the hundred court shall be held only once a week. 7) -no one in any plea may argue his cause in miskenning. 8) -they may lawfully have their lands and tenures and mortgages and debts throughout my whole land, [from] whoever owes them [anything]. 9) -with regard to debts which have been lent in bristol, and mortgages there made, pleas shall be held in the town according to the custom of the town. 10) if any one in any other place in my land shall take toll of the men of bristol, if he does not restore it after he is required to, the prepositor of bristol may take from him a distress at bristol, and force him to restore it. 11) no stranger tradesman may buy within the town from a man who is a stranger, leather, grain, or wool, but only from a burgess. 12) no stranger may have a shop, including one for selling wine, unless in a ship, nor shall sell cloth for cutting except at the fair. 13) no stranger may remain in the town with his goods for the purpose of selling his goods, but for forty days. 14) no burgess may be confined or distrained any where else within my land or power for any debt, unless he is a debtor or surety (to avoid a person owed a debt from distraining another person of the town of the debtor). 15) they shall be able to marry themselves, their sons, their daughters and their widows, without the license of their lords. (a lord had the right of preventing his tenants and their families from marrying without his consent.) 16) no one of their lords shall have the wardship or the disposal of their sons or daughters on account of their lands out of the town, but only the wardship of their tenements which belong to their own fee, until they become of age. 17) there shall be no recognition [acknowledgment that something done by another person in one's name had one's authority] in the town. 18) no one shall take tyne [wooden barrel with a certain quantity of ale, payable by the townsmen to the constable for the use of the castle] unless for the use of the lord earl, and that according to the custom of the town. 19) they may grind their grain wherever they may choose. 20) they may have their reasonable guilds, as well or better than they had them in the time of robert and his son william [john's wife's grandfather and father, who were earls of gloucester when the town and castle of bristol were part of the honor of gloucester]. 21) no burgess may be compelled to bail any man, unless he himself chooses it, although he may be dwelling on his land. we have also granted to them all their tenures, messuages [dwelling house with adjoining land and adjacent buildings], in copses [thicket from which wood was cut], in buildings on the water or elsewhere to be held in free burgage [tenant to pay only certain fixed services or payments to his lord, but not military service (like free socage)]. we have granted also that any of them may make improvements as much as he can in erecting buildings anywhere on the bank and elsewhere, as long as the borough and town are not damaged thereby. also, they shall have and possess all waste land and void grounds and places, to be built on at their pleasure. newcastle-on-tyne's taxes were simplified in 1175 as follows: "know ye that i have granted and by this present charter have confirmed to my burgesses of newcastle upon tyne, and to all their things which they can assure to be their own, acquittance from toll and passage and pontage and from the hanse and from all other customs throughout all my land. and i prohibit all persons from vexing or disturbing them therein upon forfeiture to me." we grant to our upright men on newcastle-on-tyne and their heirs our town of newcastle-on-tyne with all its appurtenances at fee farm for 100 pounds to be rendered yearly to us and our heirs at our exchequer by their own hand at the two terms, to wit, at easter 50 pounds and at michaelmas 50 pounds, saving to us our rents and prizes and assizes in the port of the same town. ranulph, earl of chester, made grants to his burgesses of coventry by this charter: "that the aforesaid burgesses and their heirs may well and honorably quietly and in free burgage hold of me and my heirs as ever in the time of my father and others of my ancestors they have held better more firmly and freer. in the second place i grant to them all the free and good laws which the burgesses of lincoln have better and freer. i prohibit and forbid my constables to draw them into the castle to plead for any cause, but they may freely have their portimote [leet court] in which all pleas belonging to me and them may be justly treated of. moreover they may choose from themselves one to act for me whom i approve, who a justice under me and over them may know the laws and customs, and keep them to my counsel in all things reasonable, every excuse put away, and may faithfully perform to me my rights. if any one happen to fall into my amercement he may be reasonably fined by my bailiff and the faithful burgesses of the court. furthermore, whatever merchants they have brought with them for the improvement of the town, i command that they have peace, and that none do them injury or unjustly send them into court. but if any foreign merchant shall have done anything improper in the town that same may be regulated in the portimote before the aforesaid justice without a suit at law." henry confirmed this charter of the earl's by 1189 as follows: i have confirmed all the liberties and free customs the earl of chester granted to them, namely, that the same burgesses may well and honorably hold in free burgage, as ever in the time of the father of the beforesaid earl, or other of his ancestors, they may have better or more firmly held; and they may have all the laws and customs which the citizens of lincoln have better and freer (e.g. their merchant guilds); all men brought to trade may be subject to the guild customs and assize of the town; those who lawfully hold land in the town for a year and a day without question and are able to prove that an accuser has been in the kingdom within the year without finding fault with them, from thence may hold the land well and in peace without pleading; those who have remained in the town a year and a day without question, and have submitted to the customs of the town and the citizens of the town are able to show through the laws and customs of the town that the accuser stood forth in the kingdom, and not a fault is found of them, then they may remain in peace in the town without question]; and that the constable of the aforesaid earl shall not bring them into the castle to plead in any case. but they may freely have their own portmanmote in which all pleas appertaining to the earl and to them may be justly treated of. moreover they may choose one from themselves to act for the earl, whom i approve, who may be a justice under the earl and over them, and who to the earl may faithfully perform his rights, and if anyone happen to fall into the earl's forfeiture he shall be acquit for 12 pence. if by the testimony of his neighbors he cannot pay 12 pence coins, by their advice it shall be so settled as he is able to pay, and besides, with other acquittances, that the burgesses shall not provide anything in corody [allowance in food] or otherwise whether for the said earl or his men, unless upon condition that their chattels shall be safe, and so rendered to them. furthermore, whatever merchants they have brought with them for the improvement of the town they may have peace, and none shall do them injury or unjustly send them into suit at law. but if any foreign merchant has done anything improper in the town that shall be amended [or tried] in the portmanmote before the aforesaid justice without a suit. and they who may be newcomers into the town, from the day on which they began to build in the town for the space of two years shall be acquit of all charges. mercantile privileges were granted to the shoemakers in oxford thus: "know ye that i have granted and confirmed to the corvesars of oxford all the liberties and customs which they had in the time of king henry my grandfather, and that they have their guild, so that none carry on their trade in the town of oxford, except he be of that guild. i grant also that the cordwainers who afterwards may come into the town of oxford shall be of the same guild and shall have the same liberties and customs which the corvesars have and ought to have. for this grant and confirmation, however, the corvesars and cordwainers ought to pay me every year an ounce of gold." a guild merchant for wool dominated and regulated the wool trade in many boroughs. in leicester, only guildsmen were permitted to buy and sell wool wholesale to whom they pleased or to wash their fells in borough waters. certain properties, such as those near running water, essential to the manufacture of wool were maintained for the use of guild members. the waterwheel was a technological advance replacing human labor whereby the cloth was fulled. the waterwheel turned a shaft which lifted hammers to pound the wet cloth in a trough. wool packers and washers could work only for guild members. the guild fixed wages, for instance to wool wrappers and flock pullers. strangers who brought wool to the town for sale could sell only to guild members. a guildsman could not sell wool retail to strangers nor go into partnership with a man outside the guild. each guild member had to swear the guildsman's oath, pay an entrance fee, and subject himself to the judgment of the guild in the guild court, which could fine or suspend a man from practicing his trade for a year. the advantages of guild membership extended beyond profit in the wool trade. members were free from the tolls that strangers paid. they alone were free to sell certain goods retail. they had the right to share in any bargain made in the presence of a guildsman, whether the transaction took place in leicester or in a distant market. in the general interest, the guild forbade the use of false weights and measures and the production of shoddy goods. it maintained a wool beam for weighing wool. it also forbade middlemen from profiting at the expense of the public. for instance, butchers' wives were forbidden from buying meat to sell again in the same market unless they cooked it. the moneys due to the king from the guilds of a town were collected by the town reeve. when the king wanted to raise an army, he summoned his major baron tenants-in-chief, who commanded their own armed dependent vassals, and he directed the sheriffs to command the minor tenants-in-chief and supply them with equipment. a baron could assemble an army in a day, but might use it to resist any perceived misgovernment by a king. armed conflict did not interfere much with daily life because the national wealth was still composed mostly of flocks and herds and simple buildings. machinery, furniture, and the stock of shops were still sparse. life would be back to normal within a week. henry wanted to check this power of the barons. so he took over or demolished their adulterine castles and restored the fyrd, which was a military draft of every freeman to serve in defense of the realm. at the king's call, barons were to appear in mail suit and helmet with sword and horse, knights and freeholders with 213s.[16 marks] of rent or chattels in coat of mail with shield and lance, freeholders of 133s.[10 marks] with lance and hauberk [coat of armor] and iron headpiece, burgesses and poorer freemen with lance and headpiece and wambais, and such as millers with pike and leather shirt. the spiritual and other baronies paid a commutation for personal service, called "scutage", at the rate of 27s. per knight's fee. barons and knights paid according to their knight's fee a scutage ranging from 10s. to 27s. as of 1181, the military obligations of villeins were defined. the master of a household was responsible for every villein in his household. others had to form groups of ten and swear obedience to the chief of the group. the sheriff was responsible for maintaining lists of men liable for military service and procuring supplies. this national militia could be used to maintain the peace. the sheriff could call upon the military array of the county as a "posse comitatus" to take a band of thieves into custody or to quell disorder. for foreign wars, henry decided to use a mercenary army and a mercenary fleet. however, the nobility who were on the borders of the realm had to maintain their private armies for frequent border clashes. the other nobility now tended towards tournaments with mock foot battles between two sides. although subject to knightly rules, serious injury and death often resulted. for this reason, the church opposed them, but unsuccessfully. new taxes replaced the danegeld tax. freeholders of land paid taxes according to their ploughable land ("hidage", by the hide, and later "carucage", by the smaller norman carucate). the smaller measure curtailed estates and increased taxation. it was assessed from 2-5s. per carcuate [100 acres] and collected for the king by knights with little or no remuneration, and later by inquest of neighbors. the towns and demesne lands of the crown paid a tax based on their produce that was collected by the itinerant justices. merchants were taxed on their personal property, which was determined by an inquest of neighbors. clergy were also taxed. this new system of taxation increased the royal income about threefold. there was a standard for reliefs paid of 100s. [5 pounds] for a knight's fee and 2,000s. [100 pounds] for a barony. at the end of henry's reign, his treasure was over 900,000 pounds. every hide of land paid the sheriff 2s. annually for his services in the administration and defense of the county. barons and their tenants and subtenants were offered an alternative of paying shield money ["scutage"] of 26s.8d. per fee in commutation for and instead of military service for their fiefs. this enabled henry to hire soldiers who would be more directly under his own control and to organize a more efficient army. henry ii restored the silver coinage to its standard of purity. the first great inflation in england occurred between 1180 and 1220. most goods and services increased threefold over these forty years. great households, whether of baron, prelate, monastery, or college gave their officers and servants allowances of provisions and clothing called "liveries". the officer of such departments as the buttery [cellar storing butts of wine], the kitchen, the napery [for linen cloth], and the chandlery had his fixed allowances for every day and his livery of clothing at fixed times of the year or intervals of years. the administration of a great estate is indicated by the pipe roll of the bishopric of winchester, 1208-1209, as follows: "downton: william fitzgilbert, and joselyn the reeve, and aylward the cellarer render account of 7 pounds 12s.11d. for arrears of the previous year. they paid and are quit. and of 3 pounds 2s.2d. for landgafol. and of 12d. by increment of tax for a park which william of witherington held for nothing. and of 2s.6d. by increment of tax for half a virgate of land which james oisel held without service. and of 19s. for 19 assize pleas in the new market. and of 10s. by increment of tax for 10 other assize pleas in the market this year. sum of the whole tax 36 pounds 14s.8d. in quittance of one reeve, 5s. in quittance for repairing the bridge, 5s.; of one forester, 4s.; of two haywards from downton and wick, 4s.; of one hayward from witherington, 20d.; of fourteen drivers from downton, wick, and nunton, for the year, 28s.; of two drivers from witherington for the year, 4s.4d.; of two drivers for half the year, 2s.; of one swineherd, of one neaterd, of one cowherd, for the year, 6s.; of three shepherds from wick, barford, and nunton, for the year, 6s.; of one shepherd from witherington, for the year, 20d.; of four customary tenants, for the year, 8s. sum of the quittances, 74s.8d. remainder 33 pounds. livery: for livery to john the dean, for christmas tax, 7 pounds 10s. by one tally. to the same for easter tax, 8 pounds by one tally. to the same for st. john's tax, 8 pounds by one tally. to the same for st. michael's tax, 8 pounds 10s. by one tally. to the same for corn [grain] sold in the field 26 pounds by two tallies. to the same for standing corn [growing crops of grain], purchases, and cheeses, 20 pounds 16s.10d. to the same for wool, 6 pounds 13s.4d. by one tally. to the same for tallage 39 pounds by one tally. sum: 134 pounds 10s.2d. expenses: for ironwork of 8 carts for year and one cart for half the year, 32s.10d. for shoeing of 2 plough horses for the year, 2s.8d. for wheels for carts, 2s.9d. for 6 carts made over, 12d. before the arrival of the carpenter. for wages of the smith for the year, 8s.6d. for one cart bound in iron bought new, 5s.7d. for wheels purchased for one cart to haul dung, 12d. for leather harness and trappings, iron links, plates, halters, 14d. for purchase of 2 ropes, 3d. for purchase of 2 sacks, 8d. for purchase of 5 locks for the granary, 11d. for making 2 gates for the sheepfold, 2s. for one gate for the farm yard, 12d. for an ax and tallow purchased and for repairing the spindles of the mill for the year, 6s.10d. for one millstone purchased for the mill 24s. for making one gate near the mill, 12d. for meat prepared in the larder, 3s. for beer bought for cleaning carcasses, 2s.1d. for digging 158 perches of land around the pasture in the marsh, 32s.11d.; for each perch 2d.1ob. for the dovecote newly made, 22s.11d.1ob. for cutting 100 thick planks for flooring both dispensary and butlery, 6s.3d. for nails or pegs bought for planking beyond the cellar, 16d. for enclosing the garden by making 2 gates, 6s.7d.1ob. for digging in the gardens, 8s.5d. for the winter work of 55 carts, 9s.2d. for the lent work of 49 carts, 8s.6d. for spreading 6 acres with dung, 6d. for threshing 24 quarters of wheat at mardon for seed, 5s. for winnowing the same, 7d. for winnowing 36 quarters of grain for seed, 3s.9d. for threshing 192 quarters of grain 32s.; for each quarter 2d. for threshing 20 quarters of mixed corn [grain], 2s.6d. for threshing 42 quarters of barley, 3s.6d. for threshing 53 quarters of oats, 2s.2d.1ob. for hauling gravel to the bridge and causeway, 4d. for cost of dairy, viz., 3 tines of salt, cloth, and pots, 6s.10d. for purchase of 17 oxen, 5 pounds 13s. for hoeing 140 acres, 5s.10d. for wages of two carters, one neatherd, for the year, 9s. for wages of one carpenter for the year, 6s.8d. for wages of one dairy woman, 2s.6d. for payment of mowers of the meadow at nunton, 6d. for 8 sheep purchased, 8s. for wages of one neatherd from nunton, 12d. for carrying 2 casks of wine by walter locard, in the time of martinmas, 8s.2d. for the carrying of 2 casks of wine from southampton to downton by the seneschal, 3s.6d. at the feast of st. lawrence. for digging 22 perches in the farmyard, 6s.5d.; for each perch 3d.1ob. for allowance of food of robert of lurdon, who was sick for 21 days, with his man, 5s.3d. for allowance of food to sewal who was caring for 2 horses of the lord bishop for 3 weeks, 21d. for allowance of food for roger walselin, for the two times he made gifts to the lord king at clarendon, 4s.9d. by two tallies. for allowance of food of master robert basset, for 3 journeys, 9s.3d.1ob. for livery of william fitzgilbert, 60s.10d. for 30 ells of canvas purchased for laying over the wool, and 2 cushions prepared for the court, 5s. for 8 sheep purchased, with lambs, 8s. sum: 2 pounds.23d. sum of livery and expenses: 159 pounds 12s.1d. and there is owing: 5 pounds 9s.4d.1ob. produce of granary: the same render account of 221 and a half quarters and 1 strike from all the produce of grain; and of 24 quarters brought from mardon. sum: 245 and a half quarters and 1 strike. for sowing 351 acres, 127 quarters. for bread for the lord bishop, 18 and a half quarters delivered to john de dispensa by three tallies. for the balance sold, 110 quarters and 1 strike. the same render account of 38 and a half quarters from all the produce of small corn [grain]. for the balance sold, all. the same render account of 29 quarters and 1 strike from all the produce of mixed corn [grain]. for seeding 156 acres, 53 quarters and 1 strike. for bread for 3 autumnal works, 9 quarters. for the balance sold, 27 quarters. the same render account of 178 and a half quarters from all the produce of barley. for sowing 102 and a half acres, 49 and a half quarters. for payment for carts, 1 quarter. for payment for hauling dung, 2 quarters. for allowance of food of two carters, one carpenter, one neatherd, one dairy woman, for the year, 32 and a half quarters. for feeding hogs in the winter, 2 quarters. for the balance sold, 91 and a half quarters. it is quit. the same render account of 311 quarters and 2 bushels from all the produce of oats. in sowing 221 and a half acres, 110 and a half quarters. for prebends [revenues paid for a clergyman's salary] of the lord bishop and lord king, on many occasions, 131 and a half quarters and 2 bushels, by five tallies. for prebends of roger wakelin, 2 and a half quarters and 3 bushels. for prebends of master robert basset, 3 and a half quarters and 1 bushel. for provender [dry food for livestock] of 2 horses of the lord bishop and 1 horse of richard marsh, for 5 weeks, 5 and a half quarters and 2 bushels. for provender of 2 horses of the lord bishop who stayed 16 nights at downton, 4 quarters. for that sent to knoyle, 18 quarters. for provender of 1 horse of robert of lurdon for 3 weeks, 1 and a half quarters. for prebends of two carters 7 quarters and 2 bushels. for the balance sold, 12 quarters. and there remains 14 quarters and 1 strike. the same render account of 6 and a half quarters from the whole produce of beans. for planting in the garden half a quarter. for the balance sold, 6 quarters. it is quit. the same render account of 4 quarters and 1 strike from all the produce of peas. for sowing 6 acres, 1 and a half quarters. for the balance sold 2 and a half quarters and 1 strike. it is quit. the same render account of 4 quarters from all the produce of vetches [pea plants used for animal fodder]. for feeding pigs in the winter, all. it is quit. beasts of burden: the same render account of 104 oxen remaining from the previous year. and of 2 yoked from useless animals. and of 1 from the will of robert copp. and of 17 purchased. sum: 124. of living ones sold, 12. of dead, 21. sum: 33. and there remain 91 oxen. the same render account of 2 goats remaining from the previous year. all remain. the same render account of 19 cows remaining from the previous year. and of 7 yoked from useless animals, and of 1 found. sum: 27. by death, 1. by killing, brought for the need of the lord bishop at cranbourne, 2. sum: 3. and there remain 24 cows. the same render account of 7 heifers and 2 steers remaining from the previous year. in yoked cows, 7 heifers. in yoked oxen, 2 bulls. sum: 9. the same render account of 12 yearlings remaining from the previous year. by death, 1. there remain 11, of which 5 are female, 6 male. the same render account of 13 calves born this year from cows, because the rest were sterile. in tithes, 1. there remain 12. the same render account of 858 sheep remaining from the previous year. and of 47 sheep for the payment of herbage, after birth, and before clipping. and of 8 bought before birth. and of 137 young ewes mixed with two-year-olds. sum: 1050. in live ones sold at the time of martinmas, 46. in those dead before birth, 20. in those dead after birth and before shearing, 12. sum: 78. and there remain 972 sheep. the same render account of 584 wethers [castrated rams] remaining from the previous year. and of 163 wethers mixed with two-yearolds. and of 16 rams from lindsey, which came by brother walter before shearing. sum: 763. in living ones sold at the time of martinmas, 27 wethers, 10 rams. paid to the men of bishopton before shearing by writ of the seneschal, 20. by death, before shearing, 14. sum: 71. and there remain 692 sheep. the same render account of 322 old sheep remaining, with lambs from the previous year. by death before shearing, 22. and there remain 300; whence 137 are young ewes, mixed with sheep, and 163 males, mixed with wethers. the same render account of 750 lambs born from sheep this year because 20 were sterile, and 30 aborted. in payment of the smith, 2; of shepherds, 3. in tithes, 73. in those dead before shearing, 105. sum: 181. and there remain 569 lambs. the same render account of 1664 large sheepskins whence 16 were from the rams of lindsey. in tithes, 164. in payment of three shepherds, 3. in the balance sold 1497 skins with 16 skins from lindsey which made 11 pondera. the same render account of 569 lamb skins. in the balance sold, all, which made 1 and a half pondera. the same render account of 138 cheeses from arrears of the previous year. and of 19 small cheeses. and of 5 larger ones from the arrears of the previous year. and of 273 cheeses which were begun the 6th of april and finished on the feast of st. michael, both days being counted. and they made cheeses two by two for 96 days, viz. from the 27th april to the vigil of the feast of st. peter in chains, both days being counted. sum: 435 cheeses. in tithes 27. in payment of a shepherd, and mowers of the meadow from nunton, 2. in duty of a carter, 3. in autumnal work, 10. in expenses of the bishop in the kitchen, 2 by one tally. in the balance sold, 133 cheeses, which made 10 heads, from arrears of the previous year. in the balance sold, 177 cheeses, which made 18 heads in this year. in expenses of the lord king and lord bishop on the feasts of st. leonard and st. martin, 19 small cheeses, and 5 larger ones from the arrears of the previous year. and there remain 52 small cheeses which make one head. the same render account of 124 hogs remaining from the previous year. and of 29 that were born of sows. sum: 153 pigs. in tithes, 2. by death, 9. in those killed for the larder, 83. sum: 95 pigs. and there remain 58 pigs. also 19 suckling pigs. sum of the whole: 77 pigs. the same render account of 48 chickens from arrears of the previous year. and of 258 chickens for cheriset. sum: 306. in expenses of the lord bishop on the feast of st. martin, 36 by one tally. in expenses of the same on the feast of st. leonard, 106, by one tally. in expenses of the lord king and bishop on the feast of the apostles peter and paul, 131 chickens, by two tallies. in allowance for food for roger wakelin, 8. in allowance of food for master robert basset, 4. by death, 21. sum: 306 chickens. it is quit. the same render account of 273 chickens, 27 sticae of eels, 4 suckling pigs, freed for the expenses of the lord king and bishop. from the larder: the same freed for the expenses of the lord bishop meat of 2 cows taken to cranbourne. the same render account of 13 sides of bacon, arrears of the previous year. and of 5 oxen and 1 quarter of old beef from arrears of the previous year. and of 84 hogs from downton. and of 71 hogs from mardon. and of 10 hogs from overton. and of 9 hogs from high-clere. and of 14 hogs from harwell. and of 7 hogs from knoyle. sum: 203 hogs, and meat of 5 oxen and one quarter. in expenses of the lord bishop at the feast of st. martin, 8 sides of bacon. in expenses of the same at the feast of st. leonard, 17 sides of bacon, the meat of 5 oxen, and 1 quarter of an ox. in expenses of the same on the morrow of the feast of the holy cross, delivered to nicolas the cook, 27 sides of bacon. in expenses of the lord bishop delivered to the same cook at knoyle on the saturday before the feast of st. michael, 15 sides of bacon. in expenses of the same and of the lord king on the feast of the apostles peter and paul, 50 sides of bacon. in allowance of food to master robert basset on the feast of all saints, half a side of bacon. in allowance of food to the same on wednesday and thursday before pentecost, 1 side of bacon. in those sent to knoyle for autumnal work, 6 sides of bacon. in three autumnal festivals at downton, 9 and a half sides of bacon. sum: 134 sides of bacon. and there remain 74 sides of bacon. the same render account of skins, sausages, and offal of the said hogs. in expenses of the lord king and lord bishop at the feast of st. leonard, all. nothing remains." king richard the lion-hearted, unlike his father, was interested in warfare. he spent most of his term on crusade to recover jerusalem. for his expenses, he imposed a tax of one-tenth of rents and income from personal property and goods. he also sold town charters, heiresses and heirs, widows, sheriffdoms, justiceships, earldoms, and licenses for tournaments. in 1198, the bishop barons had refused to pay for a campaign of richard's war in normandy arguing that military service was only due within the kingdom of england. when richard was captured, every person in the realm was required to pay a part of his ransom of 100,000 pounds, which was double the whole revenue of the crown. aids, tallages, and carucage were imposed. the heaviest impost was one-fourth of revenue or of goods from every person.the crusaders' contact with arabs brought to england an expansion of trade, arab horses, and arabic numerals, which included "zero" and greatly facilitated arithmetic, which was very difficult with roman numerals. the church decreed that those who went on these crusades would be remitted of their sins. at the end of this period was the reign of king john, a short man. after his mother eleanor's death in 1204, john ruled without her influence. he had no conscience and his oaths were no good. he trusted and was trusted by no one. he had a huge appetite for money. he imposed 2,000 pounds [3,000 marks] on london for confirmation of its charter. he imposed levies on the capital value of all personal property and goods. it began the occasional subsidies called "tenths and fifteenths" from all people on incomes from movables: one-tenth from boroughs and royal demesne land, and one-fifteenth elsewhere. he sold the wardships of minors and the marriages of heiresses to the highest bidder, no matter how base. he appointed unprincipled men to be both sheriff and justice, enabling them to blackmail property holders with vexatious writs and false accusations. writs were withheld or sold at exorbitant prices. crushing penalties were imposed to increase the profits of justice. he asserted over fowls of the air the same exclusive right as over beasts of the forest. the story of robin hood portrays john's attempt to gain the crown prematurely while richard was on the crusades to recover jerusalem for christendom. in 1213, strong northern barons refused a royal demand for service in france or scutage, arguing that the amount was not within custom or otherwise justified. john had private and public enemies. no one trusted him and he trusted no one. his heavy handed and arbitrary rule quickly alienated all sectors of the population: other barons, bishops, london, and the commons. they joined the barons to pressure him to sign the magna carta, much of which restated henry ii's work. since john had extracted many heavy fines from barons by personally adjudging them blameworthy in disputes with others, the barons wanted judgment by their peers under the established law of the courts. in arms, the barons forced john to sign the magna carta correcting his abuses. the law during the 1100s and 1200s, changes took place with regard to wills which gradually established a definite common law. they were: the king's court condemns the post obit gift of land because it was rung from a man in the agony of dying when he had most probably lost his memory and his reason, and it disappeared in the late 1100s, except for burgage tenements. the primogeniture scheme for the descent of land had been well established in the course of the 1100s and the concept of a definite heir as appointed by god was now established. heirship now has nothing to do with chattels. the church takes jurisdiction by 1200 over succession of chattels and succession assumes a testamentary character with witnesses and with an executor to carry out the dead man's will and pay his debts. a will only dealt with the dead man's part of his chattels, the law providing parts for the wife and children. if there were both wife and children, the wife took one-third and the children, except for the heir, one-third and the man could will the remaining third. if there is a wife but no child or a child but no wife, one half went to the surviving wife or children, except for the heir, and one-half was governed by the will. if there was no will, which was rare, the situation was unsettled, but usually the church distributed the remaining portion for the good of the dead man's soul. by statute, no one, including the lord of a manor, may take land from anyone else, for instance, by the customary process of distress, without a judgment from the royal court. this did not apply to london, where a landlord leasing or renting land could take distress in his fee. no one, including the lord of a manor, shall deprive an heir of the land possessed by his father, i.e. his birthright. a tenant may marry off a daughter unless his lord shows some just cause for refusing to consent to the marriage. a tenant had to pay an "aid" to his lord when the lord's daughter married, when the lord's son was knighted, or when the lord's person was ransomed. a man [or woman] may not will away his land, but he may sell it during his lifetime. the land of a knight or other tenant of a military fee is inherited by his eldest son. the socage land of a free sokeman goes by its ancient custom before the norman conquest. if a man purchased land after his marriage, his wife's dower is still one-third of the land he had when they married, or less if he had endowed her with less. but he could then enlarge her dower to one-third of all of his lands. the same rule applied if the man had no land, but endowed his wife with chattel or money instead. dower law prevented a woman from selling her dower during the life of her husband. but he could sell it or give it away. on his death, its possessor had to give the widow the equivalent worth of the property. a widower with a child born of the marriage had all his wife's lands by curtesy of the nation for his lifetime to the exclusion of her heirs. the capital messuage [chief manor] could not be given in dower or divided, but went in its entirety to its heir. heirs were firstly sons, then daughters jointly, then grandsons per stirpes, then granddaughters per stirpes, then brothers, and then sisters of the decedent. [by taking "per stirpes" instead of "per capita", a person's share goes to that person's heirs if that person predeceases the ancestor-decedent.] male heirs of land held by military service or sons of knights who were under the age of twenty-one were considered to be in custody of their lords. the lord had wardship over the heir's land, excluding the third that was the widow's dower for her life. he also had wardship over the heir's body or person and had the right to arrange the ward's marriage, which he did as early ass when the ward was age 6. both wardships were lucrative and could be bought and sold. the heir's guardian had to maintain the heir in a manner suitable to his dignity and restore to him when he came of age his inheritance in good condition discharged from debts. otherwise the lord could take the profits of the land. the guardianship was not fiduciary. the ward lived with his guardian and was taught to fight. when he came of age, he did homage and fealty for the land. the mother did not have a right to the guardianship of a son who was an heir. male heirs of sokemen who were under the age of fifteen were in the custody of their nearest kindred. the son of a burgess came of age when he could count money, measure cloth, and manage his father's concerns. female heirs remained in the custody of their lords until they married. the lord was bound to find a marriage for his ward when she became fourteen years of age and then deliver her inheritance to her. she could not marry without her lord's consent, because her husband was expected to be the lord's ally and to do homage to him. but if a female heir lost her virginity, her inheritance escheated to her lord. a woman with property could not do homage because she could not perform military service, but she generally swore fealty. she could receive homage from men. bastards were not heirs, even if their father married their mother after birth. any adult inheriting land had to pay a "relief" to the lord of the land. for a knight's fee, this was 100s. for socage land, this was one year's value. the amount for a barony depended upon the king's pleasure. heirs (but not widows) were bound to pay the debts of their fathers and ancestors. a man who married a woman who had inherited land could not sell this land without the consent of its heirs. when a man dies, his wife shall take one-third and his heirs shall take one-third of his chattels [movables or personal property]. the other third he may dispose of by will. if he had no heirs and no will, all his chattels would escheat to his lord. any distribution of chattels would take place after all the decedent's debts were paid from the property. a will required two witnesses. the testator could name an executor, but if he did not, the next of kin was the executor. a will could not be made by a man on his death bed because he may well have lost his memory and reason. also, he could not give to a younger son if in so doing, he would deprive his lawful heir. but he could give a marriage gift to a daughter regardless of the lawful heir. usury was receiving back more than what was lent, such as interest on a loan of money. when a usurer died, all his movables went to the king. a villein may not buy his own freedom (because all that he has is his lord's), but may be set free by his lord or by someone else who buys his freedom for him. he shall also be freed if the lord seduced his wife, drew his blood, or refused to bail him either in a civil or criminal action in which he was afterwards cleared. but a freed villein did not have status to plead in court, even if he had been knighted. if his free status were tried in court, only a freeman who was a witness to his being set free could avail himself of trial by combat to decide the issue. however, if the villein remained peacefully in a privileged town a year and a day and was received into its guild as a citizen, then he was freed from villeinage in every way. a freeman who married a villein lost his freedom. if any parent of a child was a villein, then the child was also a villein. all shipwrecked persons shall be treated with kindness and none of their goods or merchandise shall be taken from them. if one kills another on a vessel, he shall be fastened to the dead body and thrown with it into the sea. if one steals from another on a vessel, he shall be shaven, tarred and feathered, and turned ashore at the first land. passage on the thames river may not be obstructed by damming up the river on each side leaving a narrow outlet to net fish. all such weirs shall be removed. judicial procedure henry ii wanted all freemen to be equally protected by one system of law and government. so he opened his court, the royal court, to all people of free tenure. a court of five justices professionally expert in the law (rather than earls and barons), traveled with the king, and on points of difficulty consulted with him. justices began to be more than presiding officers; they, instead of the lay and clerical tenants-in-chief who attended, rendered the judgments. the chief court was in westminster, where the weightiest decisions were made. other professional itinerant justices appeared periodically in all counties of the nation to hear certain criminal and civil cases and to hear citizens' private civil suits [common pleas]. they came to perform many other tasks, including promulgating and enforcing new legislation, seeking out encroachments on royal rights, reviewing the local communities' and officials' performance of their public duties, imposing penalties for failure to do them or for corruption, gathering information about outlaws and nonperformance of homage, and assessing feudal escheats to the crown, wardships to which the king was entitled, royal advowsons, feudal aids owed to the king, tallages of the burgesses, and debts owed to the jews. the decision-making of itinerant justices on circuits begins the process which makes the custom of the royal court the common law of the nation. the county courts, where the traveling justices heard all manner of business in the counties, adopted the doctrines of the royal court, which then acquired an appellate jurisdiction. the itinerant justices came from the same small group of royal justices who were on the royal court and the exchequer, which was headed by the justiciar. difficult cases were decided by the king and wise men of his council. the royal court was chiefly concerned with 1) the due regulation and supervision of the conduct of local government, 2) the ownership and possession of land held by free tenure ("free tenement" was decided by justices to be one held for life or one held heritably [a fee]), and 3) the repression of serious crime, including homicide, mayhem [injuring a limb so as to make it useless], robbery, arson, and rape. henry was determined to protect lawful seisin of land and issued assizes giving the royal court authority to decide land law issues which had not been given justice in the county or lord's court. but he did not ordain that all litigation respecting free tenements, e.g. right of seisin, should take place in the king's court. rather he gave protection to mere possession of land, which could be justified because possession was intimately associated with the maintenance of the king's peace. these assizes included issues of novel disseisin [recent ejectment] of a person's free tenement or of his common of pasture which belonged to his freehold. by the assize of novel disseisin, an ejected possessor could have a jury of recognitors decide whether the ejectment had been just or not. though the petty assize of disseisin only provided a swift preliminary action to protect possession pending the lengthy and involved grand assize on the issue of which party had the more just claim or ultimate right of seisin, the latter action was only infrequently invoked. the temptation of a strong man to seize a neighbor's land to reap its profits for a long time until the neighbor could prove and enforce his right was deterred. any such claim of recent dispossession [novel disseisin] had to be made within three years of the disseisin. an example of a writ of novel disseisin is: the king to the sheriff, greeting. n has complained to me that r unjustly and without a judgment has disseised him of his free tenement in [houndsditch] since my last voyage to normandy. therefore i command you that, if n gives you security for prosecuting his claim, you are to see that the chattels which were taken from the tenement are restored to it, and that the tenement and the chattels remain in peace until sunday after easter. and meanwhile you are to see that the tenement is viewed by twelve free and lawful men of the neighborhood, and their names endorsed on this writ. and summon them by good summoners to be before me or my justices on the sunday after easter, ready to make the recognition. and summon r. or his bailiff if he himself cannot be found, on the security of gage [something given as secuxrity for performance] and reliable securities to be there then to hear the recognition. and have there the summoners, and this writ and the names of the sureties. witness etc. then an assize panel of recognition summoned concurrently with the defendant and before he had pleaded, viewed the land in question and answered, from their knowledge, these questions of fact: 1) was the plaintiff disseised of the freehold in question, unjustly and without judgment? 2) did the defendant commit the disseisin? testimony of a warrantor (or an attorney sent by him in his place) or a charter of warranty served to prove seisin by gift, sale, or exchange. no pleadings were necessary and the action could proceed and judgment given even without the presence of the defendant. the justices amerced the losing party with a monetary penalty. a successful plaintiff might be awarded damages to compensate for the loss of revenue. there was also a writ for issues of inheritance of land called "mort d'ancestor". by the assize of mort d'ancestor, an heir of a tenant who died and who was refused the land by the lord could have this refusal determined to be just or unjust. for this issue, the royal court used an similar assize panel of twelve men to decide whether the ancestor was seised as of fee in his demesne, if the plaintiff was the nearest heir, and whether the ancestor had died, gone on a crusade but not returned, or had become a monk. then it could give possession to the heir. since about 1150, heiresses divided the land of their father if there was no son. the widow, of course, retained her dower rights. as of 1176, the widow held her dower from the heir instead of from the husband's lord. if the heir was a minor, the guardian lord would be in actual control of the land. a national policy was implemented that in the case of the death of a freeholder, the rights of the family, his will, and his debts were to be provided for before relief was paid to his lord. eventually royal justices acquired authority to decide the ultimate question of right to land using the grand assize as an alternative to the traditional procedures which ended in trial by combat. issues of the ultimate right of seisin were brought to the royal court by a contestant in a local court who "put himself [or herself] upon the king's grand assize". the assize consisted of twelve knights from the county or neighborhood who were elected by four knights of the same county or neighborhood (selected by the sheriff or the suitors) and who were known as truthful men and were likely to possess knowledge of the facts, either from personal seeing or hearing, or from statements which their fathers had made to them from their personal knowledge. the avenue by which a person who felt he had not had justice in the manor court on his claim for certain freehold land appealed to the king was by writ of right after the manor court's decision or by a writ praecipe during the manor court's proceeding. an example of a writ praecipe is: "the king to the sheriff greeting. command [praecipe] n. to render to r. justly and without delay one hide of land in a certain vill, which the said r. complains that the aforesaid n. is withholding from him. if he does not do so, summon him by good summoners to be before me or my justices on the day after the octaves of easter, to show why he has not done so. and have the summoners and this writ. witness." when the parties appeared in court, the claimant states his suit such as: "i claim against this n. the fee of half a knight and two carucates of land in a certain vill as my right and my inheritance, of which my father (or grandfather) was seized in his demesne as of fee in the time of king henry the first, and from which he took the profits to the value of five shillings at least, in grain and hay and other profits; and this i am ready to prove by this freeman of mine, h., and if any evil befalls him them by this other man or by this third man, who saw and heard it". then the defendant chose to deny the claim word for word with proof by combat or to put himself upon the grand assize of the king. if he chose trial by combat, the parties or their champions fought. the party losing, usually by crying craven, had to pay a fine of 60s. if the grand assize was chosen, the action was removed to the royal court. a writ of grand assize was issued as follows: "the king to the sheriff, greeting. summon by good summoners the following twelve, namely, a. b. ..., to be before me or my justices at a certain place on a certain day, ready to declare on oath whether n. or r. has the greater right in one hide of land (or other things claimed) which the aforesaid r. claims against the aforesaid n., who is tenant, and in respect of which the aforesaid n., who is tenant, has put himself upon my assize and has sought a recognition to determine which of them has the greater right in the things claimed. and meanwhile the twelve shall view the land (or tenements [including meadows, pastures, woods, wastes, and rights of common] from which the services are demanded). and summon by good summoners n., who is tenant, to be there to hear the recognition. witness..." the claimant could object to any of the twelve knights for just cause as determined by the court. each of the twelve gave an oath as to whether the plaintiff's or the defendant's position was correct. this oath was not to speak falsehood nor conceal truth according to knowledge gained by eyewitness or "by the words of their fathers and by such words as they are bound to have such confidence in as if they were their own". if any did not know the truth of the matter, others were found until twelve agreed [the recognitors] on which party had the greater right. perjury was punished by forfeiture of all one's goods and chattels to the king and at least one year's imprisonment. if the tenant in court vouched another to warranty, such as the lord to whom he paid homage, that warrantor would stand in his place in the proceedings. if the warrantor lost, he would have to give to his vassal equivalent land in exchange. burgage tenure was not usually decided by assize. also, if the parties were relatives, neither the assize nor the combat was available to them, but the matter had to be decided by the law of inheritance. itinerant justices could conduct these assizes: petty and grand. in 1198, the hundred is empowered to act on all the business of the session, including all recognitions and petty assizes ordered by the king's writ, where the property in dispute was worth no more than 200s. [ten pounds] a year. the four knights came to be selected by the suitors of the county court rather than by the sheriff. this assize procedure extended in time to all other types of civil actions. removable to the royal court from the county courts were issues of a lord's claim to a person as his villein, service or relief due to a lord, dower rights, a creditor's refusal to restore a gage [something given as security] to a debtor who offered payment or a deposit, money due to a lender, a seller, or a person to whom one had an obligation under a charter, fish or harvest or cattle taken from lands unjustly occupied, cattle taken from pasture, rights to enjoy a common, to stop troubling someone's transport, to make restitution of land wrongfully occupied, to make a lord's bailiff account to him for the profits of the manor. as of 1187, pleas concerning amounts of money less than 40s. were not heard by the royal court. the royal court also decided disputes regarding baronies, nuisance or encroachments on royal land or public ways or public waterways, such as diverting waters from their right course and issues of nuisance by the making or destroying of a ditch or the destruction of a pond by a mill to the injury of a person's freehold. other pleas of the crown were: insult to the royal dignity, treason, breaches of safe-conducts, and injury to the king's servants. henry involved the royal court in many criminal issues, using the agencies of the county and hundred courts. to detect crimes, he required itinerant royal justices to form juries of presentment {indictment] composed of usually 12 knights or other landholders of every neighborhood and 4 respectable men of each township and ask them if any person were suspected of any murder, robbery, theft, etc. (these later evolved into grand juries). these assizes were an ancient institution in many parts of the country. what henry's assize did was to insist upon the adoption of a standard procedure everywhere systematically. the procedure was made more regular instead of depending on crime waves. if indicted, the suspected persons were then sent directly to the ordeal. henry abolished trial by compurgation in the royal courts. if determined guilty, the offender forfeited his chattels to the king and his land reverted to his landlord. the penalty prescribed by the assize of clarendon of 1166 was loss of a foot and abjuring the realm. the assize of northhampton of 1176 added loss of the right hand. often, a man who had a bad reputation had to abjure the realm even if he had successfully undergone the ordeal. the most serious criminal matters such as killing the king or sedition or betraying the nation or the army, fraudulent concealment of treasure trove [finding a hoard of coins which had been buried when danger approached], breach of the king's peace, homicide, murder (homicide for which there were no eyewitnesses), burning (a town, house, men, animals or other chattel for hatred or revenge), robbery, rape and falsifying (e.g. false charters or false measures or false money) were punishable by death or loss of limb. murders were now punished alike because the applicability of the murdrum fine couldn't be determined since it was impossible to prove that the slain man had been english since he would have been mutilated to hide his nationality. women did not serve on juries. having the jury of presentment precluded free men from being sent to the ordeal by compurgation oaths of the villeins. as of 1194, this jury of presentment procedure applied not only to criminal cases, but also to civil, and fiscal cases. as before, a person could also be brought to trial by the accusation of the person wronged by a felony ["appeal"]. if the accused still denied the charge after the accuser testified and the matter investigated by inquiries and interrogation and then analyzed, trial by combat was held, unless the accuser was over the age of sixty or maimed, in which case the accused went to the ordeal. the procedure of henry ii's assizes was extended from case to case as men lost faith in the older types of proof. the ordeal fell into disuse when the church prohibited blessing of ordeals in its lateran council of 1215. henry introduced the petty or trial jury of 12 reputable men to provide a workable alternative to the ordeal, compurgation, and combat. these jurors were expected to know or to find out the facts that could lead to a decision. gradually, witnesses had to be brought in to tesify to facts the jurors didn't know. housebreaking, harboring outlaws, and interference with the royal perquisites of shipwreck and the beasts of the sea which were stranded on the coast [such as whales and sturgeon] were also punishable in the royal court. trespass was a serious and forcible breach of the peace onto land that developed from the criminal law of felony. trespass becomes a general term for almost all wrongful acts and defaults against a person, land, or chattels. it covered only direct damages due to physical contact. there are two main punishments: 1) amercement of a sum of money deetermined by at least two peers of the offender and 2) imprisonment in gaol redeemable by agreement to a fine after a couple of years in gaol. another punishment was abjuration of a town or of the realm. in boroughs, an offending burgess may lose liberties or have to abjure their trade or craft. pillory and tumbrel [e.g.ducking stool] was usual for bakers and alewives who broke the assizes of bread and beer, which was often. the royal court had grown substantially and was not always presided over by the king. to avoid court agents from having too much discretionary power, there was a systematic procedure for bringing cases to the royal court. first, a plaintiff had to apply to the king's chancery for a standardized writ into which the cause had to fit. the plaintiff had to pay a fee and provide a surety that the plea was brought in good faith. the progress of the suit was controlled at crucial points by precisely formulated writs to the sheriff, instructing him for instance, to put the disputed property under royal protection pending a decision, to impanel an assize and have it view the property in advance of the justices' arrival, to ascertain a point of fact material to the plea, or to summon a 'warrantor' to support a claim by the defendant. the royal court kept a record on its cases on parchment kept rolled up: its "rolls". the oldest roll of 1194 is almost completely comprised of land cases. anyone could appoint an agent, an "attorney", to appear in court on his behalf, it being assumed that the principal could not be present and royal authorization given. a wife could represent her husband. the principal was then bound by the actions of his agent. gradually men appeared who made a business of representing whoever would employ them. the common law system became committed to the "adversary system" with the parties struggling judicially against each other. the royal court took jurisdiction over issues of whether certain land was civil or ecclesiastical [assize utrum], and therefore whether the land owed services or payment to the crown or not. it also heard issues of disturbance of advowson, a complex of rights to income from a church and to the selection of a parson for the church [assize of darrein [last] presentment]. by this assize, the identity of the patron who last presented an incumbent to a particular church could be discovered. many churches had been built by a lord on his manor for his villeins. the lord had then appointed a parson and provided for his upkeep out of the income of the church. in later times, the lord's chosen parson was formally appointed by the bishop. by the 1100s, many lords had given their advowsons to abbeys. this procedure used twelve recognitors selected by the sheriff. as before, the land of any person who had been outlawed or convicted of a felony escheated to his lord. his personal property, goods, and chattels became the king's. if he was executed, his heirs received nothing because they were of the same blood as the felon, which was corrupt: "corruption of the blood". the loss of civil rights and capacities after a sentence of death for felony or treason, which resulted in forfeiture of property and corruption of the blood, was called "attainder". there were two courts of the sheriff: the shire court for civil and criminal matters and the sheriff's tourn for petty crime only. the shire and borough courts heard cases of felonies, accusations against freemen, tort, and debts. the knights made the county courts work as legal and administrative agencies of the crown. the manor court heard cases arising out of the unfree tenures of the lord's vassals. it also heard distraint, also called "distress", issues. distraint was a landlord's method of forcing a tenant to perform the services of his fief. to distrain by the fief, a lord first obtained a judgment of his court. otherwise, he distrained only by goods and chattels without judgment of his court. a distraint was merely a security to secure a person's services, if he agreed he owed them, or his attendance in court, if he did not agree that he owed them. law and custom restricted the type of goods and chattels distrainable, and the time and manner of distraint. for instance, neither clothes, household utensils, nor a riding horse was distrainable. the lord could not use the chattels taken while they were in his custody. if cattle in custody were not accessible to the tenant, the lord had to feed them at his expense. the lord, if he were not the king, could not sell the chattel. this court also determined inheritance and dower issues. the court of the vill enforced the village ordinances. the hundred court met twice a month and dealt with the petty crimes of lowly men in the neighborhood of a few vills. franchise courts had jurisdiction given by special royal grant, such as the courts of the chancellors of oxford and cambridge universities. the peace of the sheriff still exists for his county. the king's peace may still be specially given, but it will cease upon the death of the king. law required every good and lawful man to be bound to follow the hue and cry when it was raised against an offender who was fleeing. the village reeve was expected to lead the chase to the boundary of the next jurisdiction, which would then take the responsibility to catch the man. before henry's reign, the church, with the pope's backing, had become more powerful and asserted more authority. henry tried to return to the concept of the king being appointed by god and as the head of the church as well as of the state, as in henry i's time, and to include the church in his reform of the legal system, which would make the spiritual jurisdiction and temporal jurisdiction conform to a common justice. toward this end, he published the constitutions of clarendon. but the archbishop of canterbury, thomas becket, refused to agree to them, although as chancellor he had seen the beneficial effects on the kingdom of henry's legal measures. the disagreement came to a head in henry's attempt to establish the principle of "one law to all" by having church clerics punished by the civil courts as before, instead of having "benefit of clergy" to be tried and punished only in ecclesiastical courts, even for secular crimes. clerics composed about one-sixth the population. the church courts had characteristically punished with spiritual penalties of a fine or a penance, and at most defrocking. it could not impose a death penalty, even for murder. when archbishop becket was murdered and became a martyr, "benefit of clergy" became a standard right, except for offenses in the king's forests. appeals could be made to the pope without the king's permission. the king could take a criminal cleric's chattels, but not his life. however, though theoretically bishops were elected by the body of bishops with the approval of the king, as a practical matter, the king chose the bishops and the abbots. it was a constant matter of dispute, in which the pope would sometimes involve himself. selection of archbishops was also a frequent matter of contention between king and pope. the church copied the assize procedure developed by the royal court to detect ecclesiastical offenses though it retained trial by compurgation. bishops could request the chancery to imprison an offender who had remained excommunicant for forty days, until he made amends. chancery complied as a matter of course. this went on for six centuries. the delineations of jurisdiction among these courts were confused and there was much competing and overlapping of jurisdictions. however, the court could appoint arbitrators or suggest to the parties to compromise to avoid the harshness of a decisive judgment which might drive the losing party to violent self-help. the office of coroner was established about 1194 to supplement the judicial investigations of crimes with local officers prior to the arrival of the itinerant justices. four knights who were residents of the county and possessed sufficient land were elected by the county court for life. sometimes they had county and royal connections instead. they received no pay. they determined if sudden deaths were accidental or due to murder and the cause of death of prisoners. they also held inquests on other crime such as bodily injury, rape, and prison break. they attached [arrested] the accused and evaluated and guarded his chattels until after the trial. if the accused was found guilty, his possessions went to the king. the coroner sat with the sheriff at every county court and went with him on his turns. this office and the forbidding of sheriffs to act as justices in their own counties reduced the power of the sheriffs. the responsibility of receiving the oath of the peace is changed from the sheriff to knights, the duty of the sheriffs being only to receive and keep the criminals taken by these knights until the justices came to try them. also, at this time, the constitution of the grand jury of the county was defined. first, four knights were to be chosen in the county court. these were to select on oath two knights from each hundred. these two, also on oath, are to add by co-optation ten more for the jury of the hundred. in london, if one of two witnesses for the defense died while an action was pending, the survivor, after offering his oath, could proceed to the grave of the dead witness, and there offer oath as to what the dead man would have sworn if he had been alive. if a foreigner was bound to make oath for debt or any misdeed, he could make it with six others, his own oath being the seventh; but if could not find six supporters, he alone could make the oath and take it in the six nearest churches. in london, the method of capital punishment was being confined to hanging, instead of also being in the form of beheading, burning, drowning, stoning, or hurling from a cliff. in cases of drowning, the offender was first sewn up in a sack with a snake, a dog, an ape, and a cock. chief justiciar ranulph glanvill wrote a treatise on the writs which could be brought in the royal court and the way they could be used. it was a practical manual of procedure and of the law administered in the royal court. there are personal actions such as "debt" for specific chattel or specific sum of money. the action for debt splits into two actions. the "detinue" action is for wrongful detention of personal property which originally was rightfully acquired as by loan, rent, or left for safe-keeping and its award is for the specific chattel detained or its value. the action of "replevin" is available to the tenant to recover personal property which had been wrongly distrained, usually cattle; the goods are "repledged" pending action. also, but rarely used, are "covenant" to protect termors for leases of land for terms of years, and "trespass": a semi-criminal action brought by a private party for an offense punishable by death (or in the 1100s by mutilation) such as murder, rape, robbery, or mayhem, that is done with force of arms and against the peace of the king. the use of trespass grew as private actions for felony were supplanted by public indictment. it occasioned outlawry in default of appearance. about 1200, outlawry was not used for crimes falling short of felony. these personal actions were initiated in common law courts by their respective writs. these are some of the cases of novel disseisin brought to the king's court: woodbridge v. bardolf (1194, king's court): ralf of woodbridge seeks before the justices his free tenement in hebston by the assize of novel disseisin against hugh bardolf. against which assize hugh said that he had that seisin by judgment of his court for the default of the same ralf. and the court has recorded the summons and distraints reasonably made on the same ralf. and ralf himself has acknowledged the summons and distraints and said that he ought not hold anything from him in that land; rather, it is of another's fee. and because neither he nor anyone for him has complained to the justices that hugh unjustly drew him into a plea concerning a tenement which ralf himself held of the fee of another lord, it is considered that hugh hold in peace. and let ralf plead by writ of right if he want and be in mercy for his false claim. turroc v. fitz walter (1194, king's court): the assize came to recognize if clement son of walter unjustly and without judgment disseised matilda of turroc of her free tenement within the assize. clement comes and says that he disseised her by judgment of his court. the court is present and records that she occupied more of her lord's land than she had in dower by the sheriff and by order of the lord king, so that she was summoned and distrained to come in to court, and she so responded that she remained in mercy of 10s. by judgment, so that for that amercement and for other complaints she made fine with her lord for 1/2 mark and put her land in pledge in his court and did not want to render the 1/2 mark. and therefore by judgment of his court he seised it. matilda denies all word for word. and the same clement only produces two men from his court; and it is considered that it was no court. judgment: let matilda have her seisin and let clement be in mercy for disseisin. fitz hereward v. prior of lecton (1195, king's court): the assize came to recognize if the prior of lecton unjustly and without judgment disseised reginald son of hereward and essolda his wife of his free tenement in clapston after the first coronation of the lord king. the prior says that the assize ought not be taken thereof, because he seised that land by judgment of his court for default of his service and his rent, whereof he has his court present, which asserts the same thing. it is considered that the prior replevy [give back] to them their land and give them a day in his court concerning the arrears of rents and services. and let him treat them justly by judgment of his court. stanfeld v. brewes (1199, king's court): the assize comes to recognize if simon of brewes and luke cleric and peter of brewes unjustly and without a judgment disseised odo of stanfeld and juliana his wife of her free tenement in michehey within the assize. simon says that the assize ought not be taken thereof, because he took that land into his hand by judgment of his court -which he produced and which attests to this -for default of his service. and it was testified that odo holds that land from the same simon. simon was ordered to replevy that land to odo as well as the chattels and to treat him rightfully in his court. fitz william v. amice et al. (1200, king's court): the assize comes to recognize if amice who was the wife of richard earl of clare and hugh of ceriton, john of cornherd, william of wattevill, alexander son of gilbert, alexander son of matthew, bartholomew son of alexander, robert of cornherd, and geoffrey son of leveric unjustly and without judgment disseised richard son of william of sudbury of his free tenement in sudbury after the feast of st michael next before the coronation of the lord king. the countess says that, when she was separated by papal order from the earl of clare her husband by reason of consanguinity, to which husband the vill of sudbury had been given with her as marriage portion, she came to sudbury and convoked her court and made the same richard to be summoned to come to show by what warrant he held her land. he willingly entered into the plea and vouched the earl of clare her former husband to warrant and at the day given him to have [his warrantor] he did not have him. and thus by consideration of her court she seised her land and holds it. which court she produced and which attests this. richard comes and denies that he was ever summoned or came into her court by summons or vouched to warranty or so lost seisin by consideration of the court of the countess. and this he offers [to prove]. it is considered that he defend himself 12-handed that he did not willingly enter into the plea and vouch to warranty. let him wage his law [prove by the 12-handed oath, thus, by compurgation]. pledges of the law: hugh son of hugh, wido of sudbury. day is given them at the quindene of st. john. this is the suit of richard of sudbury: [there follow the names, but only of 10 men] against the countess amice who was the countess of clare, concerning whom he had complained concerning a novel disseisin of his free tenement in sudbury. she said that by judgment of her court for default of warranty which he had vouched did she make the [dis]seisin and thereof did she produce suit. and he denied against her and against the suit, and law was adjudged. and he comes with his law and makes it with the abovesaid suit. therefore it is considered that he recover thereof his seisin; let the countess be in mercy for unjust disseisin and also her men, of whom the same richard has complained. and let the same countess return to him the damages done thereof by a jury of law-worthy men of the vicinity. the names of the men of the countess are in the writ. a sample of crown pleas in several hundreds or wapentakes [danish name for a hundred] from 1201 to 1203 are: 1. -denise, who was wife to anthony, appeals nicholas kam of the death of anthony, her husband, for that he wickedly slew her husband; and this she offers to prove against him under award of the court. and nicholas defends all of it. it is considered that denise's appeal is null, for in it she does not say that she saw the deed. the jurors being asked, say that they suspect him of it; the whole county likewise suspects him. let him purge himself by water [ordeal] under the assize. he has waged his law. 2. -william de ros appeals ailward bere, roger bald, robert merchant, and nicholas parmenter, for that they came to his house and wickedly in the king's peace took away from him a certain villein of his whom he kept in chains because he wished to run away, and led him off, and in robbery carried away his wife's coffer with one mark of silver and other chattels; and this he offers to prove by his son, robert de ros, who saw it. and ailward and the others have come and defended the felony, robbery, and breach of the king's peace, and say that (as the custom is in cornwall) roger of prideaux, by the sheriff's orders, caused twelve men to come together and make oath about the said villein, whether he was the king's villein or william's and it was found that he was the king's villein, so the said roger the serjeant demanded that [william] should surrender him, and he -refused, so [roger] sent to the sheriff, who then sent to deliver [the villein], who, however, had escaped and was not to be found, and william makes this appeal because he wishes to keep the chattels of thomas [the villein], to wit, two oxen, one cow, one mare, two pigs, nine sheep, eleven goats. and that this is so the jurors testify. judgment: william and robert in mercy for the false claim. william's amercement, a half-mark. robert's amercement, a half-mark. pledge for the mark, warin, robert's son. let the king have his chattels from william. pledge for the chattels, richard, hervey's son. 3. -serlo of ennis-caven appeals osbert of dimiliock and jordan, walter's son, for that they in the king's peace wickedly assaulted, beat and seriously wounded him, so that by reason of the beating three bones were extracted from his head; and this he offers to prove against him under the court's award as a man maimed by that mayhem. and it is testified by the coroners that the wounds when fresh were shown in the county [court], and that [the bones were broken] as aforesaid. and osbert and jordan come and defend word by word. it is considered that osbert do purge himself by ordeal of iron on account of the appeal, for serlo betook himself against osbert in the first instance. and let jordan be in custody until it be known how osbert shall fare. and the other persons who are appealed as accessories are to be under pledge until [osbert's fate] be known. 4. -the jurors say that they suspect william fisman of the death of agnes of chilleu, for the day before he had threatened her body and goods. and the four neighboring townships being sworn, suspect him of it. it is considered that he purge himself by water under the assize. 5. -william burnell and luke of the well are suspected of the burglary at the house of richard palmer by the jurors of the hundred, and by the four neighboring townships, which are sworn. let them purge themselves by water under the assize. 6. -malot crawe appeals robert, godfrey's son, of rape. he comes and defends. it is testified that he thus raped her and that she was seen bleeding. by leave of the justices they made concord on the terms of his espousing her. 7. -walter wifin was burgled, and of his chattels taken from his house in the burglary certain boots were found in the house of lefchild of ranam, and the said walter pursues those boots as his. and lefchild said that he bought them in bodmin market for 2 1/2 pence, but he knows not from whom. and besides walter says that eleven ells of linen cloth, part of the stolen goods, were sold in lefchild's house, and all the other proceeds of the burglary, and that lefchild was the receiver of the burglars, namely, robert of hideford -and alan the foresters, whom he [walter] had appealed of the -crime. and lefchild defends. the jurors on being asked, say that they suspect lefchild of the said receipt. so let him purge himself by water under the assize. 8. -eadmer of penwithen appeals martin, robert and thomas of penwithen, for that robert wounded him in the head so that twenty-eight pieces of bone were extracted, and meanwhile martin and thomas held him; and this he offers to deraign against the said robert as a man thereby maimed, under the court's award. and robert comes and defends all of it word by word. it is considered that he purge himself by ordeal of iron. let the others be in custody until it be known how robert shall fare. afterwards eadmer came and withdrew himself, and submitted to an amercement of one mark.pledges, reinfrid, gill's son, and philip his brother. let the other appellees go quit. 9. -reginald le teinus accused of the receipt and fellowship of robert the outlaw comes and defends. the jurors say that they suspect him, and the four neighboring townships say that they suspect him of it. so let him purge himself by water under the assize. and there must be inquiry as to richard revel, who was sheriff when the said robert escaped from his custody. 10. osbert of reterth appeals odo hay, for that he assaulted him as he was returning from bodmin market, and in the king's peace and wickedly struck him on the hand with a stick, and afterwards struck him on the arm with his sword -so that he is maimed; and this he offers to prove as a maimed man. and odo defends it all. and that [osbert] is maimed is testified by knights sent to see him. judgment: let [odo] purge himself by ordeal of iron because of this appeal. 11. wulward of wadebridge was burgled. and odo hay, lawrence smith, osbert mediciner, and benet his son, william miller, robert of frokemere, and maud his sister, are suspected of the burglary by the jurors of the hundred and by the four nearest townships, which are sworn. let the males purge themselves by water under the assize, and maud by ordeal of iron. roger morand fled for that burglary, and he was living in bodmin, [which town is] therefore in mercy. 12. robert, godfrey's son, appeals philip, william's son, for that he came on the land of [robert's] lord richard fortescue, and wickedly and in the king's peace and in robbery took eight oxen and a mantle, cape, and sword, and carried them off; and this he offers to prove against him by his body under award of the court. and philip comes and defends all of it word by word. it is considered that the appeal is null, for the oxen were not robert's, but richard's. the jurors being asked, say that [philip] did no robbery to [richard]. so richard fortescue is in mercy for a false appeal, and let philip be quit. 13. peter burel appeals anketil of wingely, for that he wickedly in the king's peace assaulted him in the field where he was pasturing his oxen, and beat him, and gave him four wounds in the head, and in robbery took from him an ax and a sword; and this he offers to prove against him; but he shows no wound. and anketil defends. and the county records that [peter] first appealed roger of tregadec of the same robbery and of the same wounds. therefore it is considered that the appeal is null, and let peter be in mercy for a false appeal. his amercement, a half-mark; pledge for it, ralph giffard. 14. the jurors are in mercy for a silly presentment, for they presented an appeal which was made in the hundred [court] and which was not presented in the county [court]. 15. lucy of morwinstow appeals robert de scaccis and roland -of kellio and peter of lancarf of robbing her of twenty shillings and eight pence, and of a cloak, price a half-mark. and it is testified by the jurors that they did not rob her, and that she is a hireling, and that a man lay with her in a garden, and the boys hooted her, so that she left her cloak, and the boys took it and pawned it for two gallons of wine. it is considered that robert do give her three pence in respect of the wine and do go quit. and roland and peter neither come nor essoin [present an excuse for nonappearance] themselves. and their pledges were nicholas brother of alfred of bodmin and herbert reeve of bodmin, who are therefore in mercy. 16. osbert church accused of the death of roland, son of reginald of kennel, on the appeal of the said reginald, was detained in gaol and defends word by word. and reginald offers proof by the body of a certain freeman, arkald, who has his [reginald's] daughter to wife, who is to prove in his stead, since he has passed the age of sixty. osbert church defends all of it. the knights of the hundred of penwith say that they suspect him of the said death. the knights of kerrier [hundred] say the same. the knights of penwith [hundred] say the same. the knights of pyder [hundred] say the same. judgment: let him purge himself by water, and reginald is in mercy, for he does not allege sight and hearing, and because he has withdrawn himself, and put another in his place, who neither saw nor heard and yet offered to prove it, and so let both reginald and arkald be in mercy. osbert is purged by the water. osbert's pledges: henry little, henry of penant, ossulf black, roger of trevithow, john of glin, ralph of trelew. 17. roger of wick [was] appealed of the death of brictmer by the appeal of hawise, brictmer's wife, and was captured in flight, as say john of winielton and ralph of mertherin, but the flight is not testified by the hundred. kerier [hundred] says the same. penwith [hundred] says the same. so is considered that he purge himself by water. he is purged. roger's pledges: ralph of trelew, ogier of kurnick, richard, simon's son, alfred malvoisin, everwin of lande, john of kewerion, warin of tiwardeni, baldwin tirel, roger of trevithow, john of glin, william of dunham, thomas, osbert's son. 18. richard, william's son, appealed luke, richard's son, and william, the servant of alan clerk, of robbery and of binding him. the appellees have not come nor essoined themselves. the county together with the wapentake says that they were appealed, not of the king's peace, but of the sheriff's peace, so that the suit was and is in the county [court], and therefore they were not attached to come before the justices. therefore the jurors are in mercy for presenting what they ought not to have presented. 19. william, hawise's son, appeals richard, son of robert of somercotes, for that he came in the king's peace to his house at somercotes, and broke his house and robbed him of.[an abrasion] shillings, and a cape and surcoat, and twenty-five fowls, and twenty shillings worth of corn [grain], and wounded him in the head with the wound that he shows; and this he offers to prove against him as the court shall consider etc. and richard comes and defends the breach of the king's peace and the housebreaking, wounding and -robbery, but confesses that he came to a certain house, which william asserts to be his [william's], as to his -[richard's] own proper house, which escheated into his hand on the death of roger his villein, and there he took certain chattels which were his villein's and which on his villein's death were his [richard's] own: to wit, five thraves of oats, thirteen sheaves of barley, and twenty-five fowls; and he offers the king twenty shillings for an inquest [to find] whether this be so or no. and william says that richard says this unjustly, for the said roger never had that house nor dwelt therein, nor were those chattels roger's, but he [william] held that house as his own, and the chattels there seized were his. the jurors being questioned whether roger did thus hold the house of richard in villeinage, say, yes. also the coroners and the whole county testify that [william] never showed any wound until now; and the wound that he now shows is of recent date. therefore it is considered that the appeal is null, and let richard go quit, and william be in mercy for his false claim. pledges for the amercement, gilbert, robert's son, and richard, haldeng's son. 20. astin of wispington appeals simon of edlington, for that he wickedly and in the king's peace assaulted him in his meadows and put out his eye, so that he is maimed of that eye; and this he offers to prove etc. simon comes and defends all of it word by word. and the coroners and the county testify that hitherto the appeal has been duly sued, at first by [astin's] wife, and then by [astin himself]. judgment: let law be made, and let it be in the election of the appellee whether he or astin shall carry the iron. he has chosen that astin shall carry it. astin has waged the law. simon's pledges, william of land and his frankpledge and ralph of stures. astin's pledges, roger thorpe, osgot of wispington, and william, joel's brother. afterwards came [the appellor and appellee] and both put themselves in mercy. 21. gilbert of willingham appeals gilbert, geoffrey's son, for that he in the king's peace and wickedly set fire to his house and burned it, so that after the setting fire [the appellor] went forth and raised hue and cry so that his neighbors and the township of willingham came thither, and he showed them [the appellee] in flight and therefore they pursued him with the cry; and this he offers etc. and the appellee defends all of it word by word etc. and the neighbors and the township of willingham being questioned, say that they never saw him in flight, and that [the appellor] never showed him to them. likewise the jurors say that in their belief he appeals him out of spite rather than for just cause. therefore it is considered that the appeal is null, and the appellee is in mercy for a half-mark [7s.]. pledge for the amercement, robert walo. 22. william burel appeals walter morcock, for that he in the king's peace so struck and beat margery, [william's] wife, that he killed the child in her womb, and besides this beat her and drew blood. and william of manby, the beadle, testifies that he saw the wound while fresh and the blood in the wapentake [court]. and the serjeant of the riding and the coroners and the twelve knights testify that they never saw wound nor blood. and so it is considered that the appeal is null, for one part of the appeal being quashed, it is quashed altogether, and william burel is in mercy. let him be in custody. and william manby is in mercy for false testimony. pledges for william's amercement, richard of bilsby, elias of welton. 23. william marshall fled for the death of sigerid, denis' mother, whereof denis appeals him; and he was in the prior of sixhills' frankpledge of sixhills, which is in mercy, and his chattels were two cows and one bullock. afterwards came the prior of sixhills and undertook to have william to right before the justices. and he came, and then denis, sigerid's son, came and appealed him of his mother's death. and it was testified that [denis] had an elder brother, and that nine years are past since [sigerid] died, and that she lived almost a year after she was wounded, and that denis never appealed [william] before now. therefore it is considered that the appeal is null and that denis be in mercy. pledge for the amercement, his father, ralph, son of denis. 24. alice, wife of geoffrey of carlby, appealed william, roger's son, and william his son and roger his son of the death of william her brother. and alice does not prosecute.therefore let her be in mercy and let her be arrested. to -judgment against the sheriff who did not imprison the said persons who were attached, whereas they are appealed of homicide, and to judgment also as to a writ which he ought to produce. 25. hawise, thurstan's daughter, appeals walter of croxby -and william miller of the death of her father and of a wound -given to herself. and she has a husband, robert franchenay, who will not stir in the matter. therefore it is considered that the appeal is null, for a woman has no appeal against anyone save for the death of her husband or for rape. and let robert be in mercy on his wife's account, for a half-mark [7s.], and let the appellees be quit. pledge for robert's amercement, richard dean of mareham, who has lay property. wapentake of aswardhurn. 26. juliana of creeton appeals adam of merle of battery and robbery. and adam does not come, but essoins himself as being in the king's service beyond seas. and for that it is not allowed to anyone appealed of the king's peace to leave the land without a warrant before he has been before justices learned in the law, his pledges are in mercy: to wit, segar of arceles, alan of renington, and robert of searby. adam himself is excused from the plea by the essoin that he has cast. 27. thomas, leofwin's son, appeals alan harvester, for that he in the king's peace assaulted him as he went on the highway, and with his force carried him into alan's house, and struck him on the arm so that he broke a small bone of his arm, whereby he is maimed, and robbed him of his cape and his knife, and held him while eimma, [alan's] wife, cut off one of his testicles and ralph pilate the other, and when he was thus dismembered and ill-treated, the said alan with his force carried him back into the road, whereupon as soon as might be he raised the cry, and the neighbors came to the cry, and saw him thus ill-treated, and then at once he sent to the king's serjeant, who came and found, so [thomas] says, the robbed things in alan's house and then as soon as might be [thomas] went to the wapentake [court] and to the county [court] and showed all this. so inquiry is made of the king's sergeant, who testifies that he came to alan's house and there found the knife and the testicles in a little cup, but found not the cape. also the whole county testifies that [thomas] never before now appealed alan of breaking a bone. and so it is considered that the appeal is null, and that [thomas] be in mercy, and that the other appellees be quit. thomas also appeals emma, alan's wife, for that she in the peace aforesaid after he was placed in her lord's house cut off one of his testicles. he also appeals ralph pilate, for that he cut off the other of his testicles. 28. the twelve jurors presented in their verdict that austin, rumfar's son, appealed ralph gille of the death of his brother, so that [ralph] fled, and that william, rumfar's son, appealed benet carter of the same death, and ranulf, ralph's son, appealed hugh of hyckham of the same death and baldwin of elsham and ralph hoth and colegrim as accessories. and the coroners by their rolls testify this also. but the county records otherwise, namely, that the said ralph gille, benet, hugh, baldwin, ralph [hoth] and gocegrim were all appealed by ranulf, ralph's son, and by no one else, so that four of them, to wit, ralph gille, hugh, benet and colegrim, were outlawed at the suit of the said ranulf, and that the said persons were not appealed by anyone other than the said ranulf. and for that the county could not [be heard to] contradict the coroners and the said jurors who have said their say upon oath, it is considered etc. thereupon the county forestalled the judgment and before judgment was pronounced made fine with 200 pounds [4,000s.] [to be collected throughout the county], franchises excepted. 29. hereward, william's son, appeals walter, hugh's son, for that he in the king's peace assaulted him and wounded him in -the arm with an iron fork and gave him another wound in the head; and this he offers to prove by his body as the court shall consider. and walter defends all of it by his body. and it is testified by the coroners and by the whole county that hereward showed his wounds at the proper time and has made sufficient suit. therefore it is considered that there be battle. walter's pledges, peter of gosberton church, and richard hereward's son. hereward's pledges, william his father and the prior of pinchbeck. let them come armed in the quindene of st. swithin at leicester. 30. william gering appeals william cook of imprisonment, to wit, that he with his force in the king's peace and wickedly, while [gering] was in the service of his lord guy at the forge, took him and led him to freiston to the house of william longchamp, and there kept him in prison so that his lord could not get him replevied; and this he offers to prove as the court shall consider. and william cook comes and defends the felony and imprisonment, but confesses that whereas he had sent his lord's servants to seize the beasts of the said guy on account of a certain amercement which [guy] had incurred in the court of [cook's] lord [longchamp], and which though often summoned he had refused to pay, [gering] came and rescued the beasts that had been seized and wounded a servant of [cook's] lord, who had been sent to seize them, whereupon [cook] arrested [gering] until -he should find pledges to stand to right touching both the wounding and the rescue, and when [gering's] lord [guy] came -for him, [cook] offered to let him be replevied, but this [guy] refused, and afterwards he repeated the offer before the king's serjeant, but even then it was refused, and then [cook] let [gering] go without taking security. and guy says that he puts himself upon the wapentake, whether the imprisonment took place in manner aforesaid, and whether he [guy] at once showed the matter to the king's serjeant, or no. and william cook does the same. and the wapentake says that the alleged [imprisonment] took place in lent, and guy did not show the matter to the wapentake until a fortnight before st. botulph's day. and the county together with the coroners says that they never heard the suit in their court. therefore it is considered that the appeal is null, and guy is in mercy. and let william and those who are appealed as accessories go quit. 31. the jurors say that andrew, sureman's son, appealed peter, leofwin's son, thomas squire and william oildene of robbery. and he does not prosecute. so he and stephen despine and baldwin long are in mercy, and the appellees go without day. afterwards comes andrew and says that [the appellees] imprisoned him by the order of william malesoures in the said william's house, so that he sent to the sheriff that the sheriff might deliver him, whereupon the sheriff sent his serjeant and others thither, who on coming there found him imprisoned and delivered him and he produces witnesses, to wit, nicholas portehors and hugh, thurkill's son, who testify that they found him imprisoned, and he vouches the sheriff to warrant this. and the sheriff, on being questioned, says that in truth he sent thither four lawful men with the serjeant on a complaint made by nicholas portehors on andrew's behalf. and those who were sent thither by the sheriff testify that they found him at liberty and disporting himself in william's house. therefore it is considered that the appeal is null [and andrew is in mercy] for his false complaint and nicholas portehors and hugh, thurkill's son, are in mercy for false testimony. andrew and hugh are to be in custody until they have found pledges [for their amercement]. 32. the jurors say that geoffrey cardun has levied new customs other than he ought and other than have been usual, to wit, in taking from every cart crossing his land at winwick with eels, one stick of eels, and from a cart with greenfish, one greenfish, and from a cart with salmon, half a salmon, and from a cart with herrings, five herrings, whereas he ought to take no custom for anything save for salt crossing his land, to wit, for a cartload, one bole of salt, and in that case the salter ought to have a loaf in return for the salt, and also if the salter's cart breaks down, the salter's horses ought to have pasture on geoffrey's land without challenge while he repairs his cart. and geoffrey comes and confesses that he takes the said customs, and ought to take them, for he and his ancestors have taken them from the conquest of england, and he puts himself on the grand assize of our lord the king, and craves that a recognition be made whether he ought to take those customs or no. and afterwards he offers the king twenty shillings that this action may be put before sir geoffrey fitzpeter [the justiciar]. pledge for the twenty shillings, richard of hinton. 33. the jurors say that hugh, son of walter priest, was outlawed for the death of roger rombald at the suit of robert rombald, and afterwards returned under the [protection of the] king's writ, and afterwards was outlawed for the same death on the appeal of geoffrey, thurstan's son. the county therefore is asked by what warrant they outlawed the same man twice for the same death, and says that of a truth in king richard's time the said hugh was outlawed at the suit of one lucy, sister of the said roger, so that for a long time afterwards he hid himself; and at length he came into the county [court] and produced letters of sir geoffrey fitzpeter in the form following: "g. fitzpeter etc. to the sheriff of northamptonshire, greeting, know thou that the king hath pardoned to hugh, son of the priest of grafton, his flight and the outlawry adjudged to him for the death of a certain slain man, and hath signified to us by his letters that we be aiding to the said hugh in reestablishing the peace between him and the kinsfolk of the slain; wherefore we command thee that thou be aiding to the said hugh in making the peace aforesaid, and do us to wit by thy letters under seal what thou hast done in this matter, since we are bound to signify the same to the king. in witness etc. by the king's writ from beyond seas." and the said letters being read in full county [court] the county told the said hugh that he must find pledges that he would be in the king's peace, and he went away to find pledges, and afterwards did not appear. but the kinsfolk of the slain, having heard that hugh had returned after his outlawry, came to the next county [court] and robert rombald produced geoffrey, thurstan's son, who said that if he saw the said hugh he would sue against him the death of the said roger, who was [his kinsman]. and the county showed him how hugh had brought the justiciar's letters pardoning him the flight and outlawry, and that he was to find pledges to stand to the king's peace, but had not returned. whereupon the king's serjeant was ordered to seek hugh and bring him to a later county [court]. and at a later county [court] geoffrey offered himself against hugh, and hugh did not appear; whereupon the king's serjeant being questioned said that he had not found him, and the county advised [geoffrey] to come to another county [court], because if in the meantime hugh could be found, he would be brought to the county [court]. then at the third county [court] the said geoffrey offered himself, and it was testified by the serjeant that hugh had not yet been found, wherefore the county said that as hugh would not appear to the king's peace, he must bear the wolf's head as he had done before. to judgment against the coroners and the twelve jurors. 34. robert of herthale, arrested for having in self-defense slain roger, swein's son, who had slain five men in a fit of madness, is committed to the sheriff that he may be in custody as before, for the king must be consulted about this matter. the chattels of him who killed the five men were worth two shillings, for which richard [the sheriff must account]. 35. sibil, engelard's daughter, appeals ralph of sandford, for that he in the king's peace and wickedly and in breach of the peace given to her in the county [court] by the sheriff, came to the house of her lord [or husband] and broke her chests and carried off the chattels, and so treated her that he slew the child that was living in her womb. afterwards she came and said that they had made a compromise and she withdrew herself, for they have agreed that ralph shall satisfy her for the loss of the chattels upon the view and by the appraisement of lawful men; and ralph has assented to this. 36. william pipin slew william [or john] guldeneman and fled. he had no chattels. let him be exacted. and hugh fuller was taken for this death and put in gaol because the said john [or william] was slain in his house. and hugh gives to the king his chattels which were taken with him, that he may have an inquest [to find] whether he be guilty thereof or no. the jurors say that he is not guilty, and so let him go quit thereof. and william picot is in mercy for having sold hugh's chattels before he was convicted of the death, and for having sold them at an undervalue, for he sold them, as he says, for three shillings, and the jurors say that they were worth seventeen shillings, for which william picot and those who were his fellows ought to account. and william says that the chattels were sold by the advice of his fellows, and his fellows deny this. 37. robert white slew walter of hugeford and fled. the jurors say that he was outlawed for the death, and the county and the coroners say that he was not outlawed, because no one sued against him. and because the jurors cannot [be heard to] contradict the county and the coroners, therefore they are in mercy, and let robert be exacted. his chattels were [worth] fifteen shillings, for which r. of ambresleigh, the sheriff, must account. 38. elyas of lilleshall fled to church for the death of a woman slain at lilleshall. he had no chattels. he confessed the death and abjured the realm. alice crithecreche and eva of lilleshall and aldith and mabel, geoffrey and robert of lilleshall, and peter of hopton were taken for the death of the said woman slain at lilleshall. and alice, at once after the death, fled to the county of stafford with some of the chattels of the slain, so it is said, and was taken in that county and brought back into shropshire and there, as the king's serjeant and many knights and lawful men of the county testify, in their presence she said, that at night she heard a tumult in the house of the slain; whereupon she came to the door and looked in, and saw through the middle of the doorway four men in the house, and they came out and caught her, and threatened to kill her unless she would conceal them; and so they gave her the pelf [booty] that she had. and when she came before the [itinerant] justices she denied all this. therefore she has deserved death, but by way of dispensation [the sentence is mitigated, so] let her -eyes be torn out. the others are not suspected, therefore let them be under pledges. 39. william, john's son, appeals walter, son of ralph hose, for that when [william's] lord guy of shawbury and [william] had come from attending the pleas of our lord the king in the county court of shropshire, there came five men in the forest of haughmond and there in the king's peace and wickedly assaulted his lord guy, and so that [walter], who was the fourth among those five, wounded guy and was accessory with the others in force as aid so that guy his lord was killed, and after having wounded his lord he [walter] came to william and held him so that he could not aid his lord; and this he offers to deraign [determine by personal combat] against him as the court shall consider. and walter comes and defends all of it word by word as the court etc. it is considered that there be battle [combat] between them. the battle [combat] is waged. day is given them, at oxford on the morrow of the octave of all saints, and then let them come armed. and ralph [walter's father] gives the king a half-mark that he may have the custody of his son, [for which sum] the pledges are john of knighton and reiner of acton, and he is committed to the custody of ralph hose, reiner of acton, john of knighton, reginald of leigh, adam of mcuklestone, william of bromley, stephen of ackleton, eudo of mark. 40. robert, son of robert of ferrers, appeals ranulf of tattesworth, for that he came into robert's garden and wickedly and in the king's peace assaulted robert's man roger, and beat and wounded him so that his life was despaired of, and robbed him [roger?] of a cloak, a sword, a bow and arrows: and the said roger offers to prove this by his body as the court shall consider. and ranulf comes and defends the whole of it, word by word, and offers the king one mark of silver that he may have an inquest of lawful knights [to say] whether he be guilty thereof or no. also he says that roger has never until now appealed him of this, and prays that this be allowed in his favor. [ranulf's] offering is accepted. the jurors say that in truth there was some quarrel between robert's gardener, osmund, and some footboys, but ranulf was not there, and they do not suspect him of any robbery or any tort done to robert or to osmund. also the county records that the knights who on robert's complaint were sent to view osmund's wounds found him unwounded and found no one else complaining, and that robert in his plaint spoke of osmund his gardener and never of roger, and that roger never came to the county [court] to make this appeal. therefore it is considered that ranulf be quit, and robert and roger in mercy. pledge for ranulf's mark, philip of draycot. pledges for the amercement, henry of hungerhill, and richard meverell. pledge for roger, the said robert. 41. one l. is suspected by the jurors of being present when reinild of hemchurch was slain, and of having aided and counseled her death. and she defends. therefore let her purge herself by the ordeal of iron; but as she is ill, the ordeal is respited until her recovery. 42. andrew of burwarton is suspected by the jurors of the death of one hervey, for that he concealed himself because of that death. therefore let him purge himself by ordeal of water. 43. godith, formerly wife of walter palmer, appeals richard of stonall, for that he in the king's peace wickedly and by night with his force came to her house and bound her and her husband, and afterwards slew the said walter her husband; and this she offers to prove against him as wife of the slain as the court shall consider. and he defends all of it. and the jurors and the whole neighborhood suspect him of that death. and so it is considered that he purge himself by ordeal of iron for he has elected to bear the iron. 44. the jurors of oflow hundred say that the bailiffs of tamworth have unjustly taken toll from the knights of staffordshire, to wit, for their oxen and other beasts. and the men of lichfield complain that likewise they have taken toll from them, more especially in staffordshire. and the bailiffs deny that they take anything from the knights in staffordshire. and for that they cannot [be heard to] contradict the jurors, the bailiffs are in mercy. as to the men of lichfield, [the tamworth bailiffs] say that they ought to have, and in king henry's time had, toll of them, more especially of the merchants, as well in staffordshire as in warwickshire. and the burgesses of lichfield offer the king a half-mark for an inquest by the county. and the county records that in king henry's time the men of lichfield did not pay toll in staffordshire. therefore the bailiffs are in mercy. chapter 7 the times 1215-1272 tenures in land were free or not free; the free tenures were (1) military service, (2) grand serjeanty, (3) free socage, and (4) frankalmoin. for military service, in general, every man knows his place, knows how many days he must fight and with what arms. but this institution is becoming unstable. sometimes a substantial payment called scutage is taken instead. as feudalism became less military and less rough, daughters were permitted to inherit fiefs. it became customary to divide the property of a deceased man without a son equally among his daughters. lords were receiving homage from all the daughters and thereby acquiring marriage rights over all of them. also, if a son predeceased his father but left a child, that child would succeed to the father's land in the same way that the deceased would have. the ill, the aged, women, and ecclesiastics could send a substitute to military service. there are certain reliefs, and wardship and marriage fees associated with military tenure. grand serjeanty was various and included carrying the banner of the king, or his lance, carrying his sword at his coronation, carrying his letters, summoning his barons, conveying his treasure from place to place, being his steward, marshal, chamberlain or constable. many serjeanties were connected with warfare, such as light horsemen, infantry, bowmen, captains of the national militia, leading the infantry of certain hundreds, military transport, carriage of armour on a horse, munitions of war such as lances, arrows or knives. a man could hold by serjeanty of a mesne lord, such as presiding over the lord's court, riding with the lord or on his errands, feeding his hounds, or supplying bows and arrows. tenure in free socage may involve a nominal service to a lord, such as the gift every year of a rose, a sparrowhawk, a pair of gloves, a pair of gilt spurs, or a pound of pepper, or of incense or of wax. tenure in socage may originate by a gift of land to a daughter or younger son, or to some dependant for past services, or a purchase with a gross sum. there were no wardship or marriage or other fees associated with a tenure in free socage. tenure in frankalmoin ["free alms" for the poor to relieve the king of this burden] was land held by ecclesiastics in right of their churches and of god. this service was spiritual, often for saying prayers for the deceased donor so that he could go from purgatory to heaven, and it was an indefinite service. in general, land could be alienated or subinfeudated without the lord's consent and thus come to be held in another tenure. land escheated [returned] to the lord if there were no heirs, or in case of felony after the king has possessed and taken the profits of the land for year and day. in case of treason, a tenant's lands were all forfeited to the king. the tenure of socage obligated the tenant to fixed agricultural services, for which a nominal payment called a "quit rent" could be substituted. socage did not entail rights of wardship or marriage. socage grew at the expense of the other tenures. the unfree tenure was villein tenure. villeins were tied to a piece of land and were bound to perform for their lord indefinite agricultural services and could be physically recovered in case they left the land. villeins were subject to a lord's court and were not protected by the king's court. the major types of freemen were: nobles, knights, ecclesiastics, jews, and women. the nobles were the earls and barons. they did not have noble blood, but were tenants in chief of certain land by the king's will. the king consulted them and they obeyed his summons and gave him counsel. they were entitled to be judged in cases of treason or felony, by their peers, that is, each other. lower in status are the knights. they were active in royal justice, making thedecisions in the most important cases. ecclesiatics were bishops; abbots; and monks, nuns, and friars, who had taken vows of poverty and obedience; and clergy. the difference between a monk and a friar was a cloistered life versus an active life. jews came to england after the conquest and were under the special protection of the king. all they had belonged to the king. a jew could lend money for interest, which was disallowed for christians. jews were subject to the courts of justice, but could also settle their disputes by their own hebrew law, they were expelled in 1290. women could hold land, even by military tenure, own chattels typically beasts and coins], make a will, make a contract, and could sue and be sued. they could give evidence in court, but could not be jurors or judges. women who had husbands had to defer to them in certain property matters. nobles, doctors, and attorneys wore tunics to the ankle and an over-tunic almost as long, which was lined with fur and had long sleeves. a hood was attached to it. a man's hair was short and curled, with bangs on the forehead. the tunic of merchants and middle class men reached to the calf. the laborer wore a tunic that reached to the knee, cloth stockings, and shoes of heavy felt, cloth, or perhaps leather. ladies wore a full-length tunic with moderate fullness in the skirt, and a low belt, and tight sleeves. a lady's hair was concealed by a round hat tied on the top of her head. over her tunic, she wore a cloak. monks and nuns wore long black robes with hoods. baron landholders' semi-fortified stone manor houses were improved and extended. many had been licensed to be embattled or crenelated [wall indented at top with shooting spaces]. they were usually quadrangular around a central courtyard. the central and largest room was the hall, where people ate and slept. the hall had a hearth for fire in the center of the room if the hall was one story high. sometimes the lord had a room with a sleeping loft above it. if the hall was more than one story high, it had a fireplace at one end so that the smoke could go up and out the roof. other rooms each had a fireplace. there were small windows around the top story and on the inside of the courtyard. they were usually covered with oiled paper. windows of large houses were of opaque glass supplied by a glassmaking craft. the glass was thick, uneven, distorted, and greenish in color. the walls were plastered. the floor was wood with some carpets. roofs were timbered with horizontal beams. many roofs had tiles supplied by the tile craft, which baked the tiles in kilns or over an open fire. because of the hazard of fire, the kitchen was often a separate building, with a covered way connecting it to the hall. it had one or two open fires in fireplaces, and ovens. sometimes there was a separate room for a dairy. furniture included heavy wood armchairs for the lord and lady, stools, benches, trestle tables, chests, and cupboards. outside was an enclosed garden with cabbages, peas, beans, beetroots, onions, garlic, leeks, lettuce, watercress, hops, herbs, nut trees for oil, some flowers, and a fish pond and well. bees were kept for their honey. the barons now managed and developed their estates to be as productive as possible, often using the successful management techniques of church estates. they kept records of their fields, tenants, and services owed by each tenant, and duties of the manor officers, such as supervision of the ploughing and harrowing. annually, the manor's profit or loss for the year was calculated. most manors were self-supporting except that iron for tools and horseshoes and salt for curing usually had to be obtained elsewhere. wine, tar, canvas and millstones were imports from other countries and bought at fairs, as was fish, furs, spices, and silks. sheep were kept in such large numbers that they were susceptible to a new disease "scab". every great household was bound to give alms. manors averaged about ten miles distance between each other, the land in between being unused and called "wasteland". statutes after a period of civil war proscribing the retaking of land discouraged the enclosure of waste land. husbandry land held in villeinage was inherited according to the custom of its manor as administered in the lord's manorial court. (the royal courts had jurisdiction of land held in socage. i.e. free tenure.) the heir could be the oldest son, the youngest son, a son chosen by the father to succeed him, or divided among the sons. if there were no sons, one of the daughters inherited the land or it was divided among all the daughters. if there were no heirs, the land went back to the lord. land could not be sold or alienated so that the heir did not inherit, without the consent of the lord. manorial custom also determined the manner of descent of goods and chattels. a common custom for a villein was that his best beast go to his lord as heriot and his second best beast go to the parish priest as mortuary. then, after debts and burial expenses had been paid, a number of tools and utensils needed for husbandry and housekeeping went with the land to its heir. these were the "heirlooms", `loom" in old english meaning tool. this usually included, for a holding of more than 5 acres, a coulter, a plowshare, a yoke, a cart, an axe, a cauldron, a pan, a dish, and a cask. finally, the remaining goods and chattels went one-third to the widow, one-third to his children except for the heir to the land, and one-third according to the deceased's last will and testament. a son might take his share before the death of his father in order to go out into the world and seek his fortune, for instance in the church or military, upon which event the father had to pay his lord a fine for his son permanently leaving the manor. many country boys became bound apprentices in nearby boroughs or farm laborers. others married heiresses of land. by the custom of "curtesy of the nation", he held this land for his lifetime if he had a child born of the marriage, even if his wife predeceased him. if a man remained on the family land, he had no right to marry. often, there were agreements over land holdings that were recorded in the manor books. for instance, it was common for a father or mother to hand his or her holding over to the heir in exchange for sustenance in old age. an heir usually did not marry until after receiving his land. manorial custom determined whether a father's consent was necessary for a son or daughter to marry, the nature of any agreement ("trothplight") between the families as to lands and goods brought to the marriage, the amount of her marriage portion, and the son's endowment (her "dower") of lands and goods promised to the bride at the church door that would provide for her support after his death. if dower was not specified, it was understood to be one-third of all lands and tenements. at the next hallmote, if manorial custom required it, the son would pay a fine to his lord for entry onto the land and for license to marry. from 1246, priests taught that betrothal and consummation constituted irrevocable marriage. some villeins bought out their servitude by paying a substitute to do his service or paying his lord a firm (from hence, the words farm and farmer) sum to hire an agricultural laborer in his place. this made it possible for a farm laborer to till one continuous piece of land instead of scattered strips. looms were now mounted with two bars. women did embroidery. the clothing of most people was made at home, even sandals. the village tanner and bootmaker supplied long pieces of soft leather for more protection than sandals. tanning mills replaced some hand labor. the professional hunter of wolves, lynx, or otters supplied head coverings. every village had a smith and possibly a carpenter for construction of ploughs and carts. the smith obtained coal from coal fields for heating the metal he worked. horse harnesses were homemade from hair and hemp. there were watermills and/or windmills for grinding grain, for malt, and/or for fulling cloth. the position of the sails of the windmills was changed by manual labor when the direction of the wind changed. most men wore a knife because of the prevalence of murder and robbery. it was an every day event for a murderer to flee to sanctuary in a church, which would then be surrounded by his pursuers while the coroner was summoned. usually, the fugitive would confess, pay compensation, and agree to leave the nation permanently. county courts were the center of decision-making regarding judicial, fiscal, military, and general administrative matters. the writs for the conservation of the peace, directing the taking of the oath, the pursuit of malefactors, and the observance of watch and ward, were proclaimed in full county court; attachments were made in obedience to them in the county court. the county offices were: sheriff, coroner, escheator, and constable or bailiff. there were 28 sheriffs for 38 counties. the sheriff was usually a substantial landholder and a knight who had been prominent in the local court. he usually had a castle in which he kept persons he arrested. he no longer bought his office and collected certain rents for himself, but was a salaried political appointee of the king. he employed a deputy or undersheriff, who was an attorney, and clerks. if there was civil commotion or contempt of royal authority, the sheriff of the county had power to raise a posse of armed men to restore order. the coroner watched the interests of the crown and had duties in sudden deaths, treasure trove, and shipwreck cases. there were about five coroners per county and they served for a number of years. they were chosen by the county court. the escheator was appointed annually by the treasurer to administer the crown's rights in feudal land, which until 1242 had been the responsibility of the sheriff. he was usually chosen from the local gentry. the constable and bailiff operated at the hundred and parish [the geographical area of a church's members] level to detect crime and keep the peace. they assisted sheriffs and justices of the peace, organized watches for criminals and vagrants at the village level, and raised the hue and cry along the highway and from village to village in pursuit of offenders who had committed felony or robbery. the constables also kept the royal castles; they recruited, fed, and commanded the castle garrison. county knights served sheriffs, coroners, escheators, and justices on special royal commissions of gaol-delivery. they sat in judgment in the county court at its monthly meetings, attended the two great annual assemblies when the lord, knights and freeholders of the county gathered to meet the itinerant justices who came escorted by the sheriff and weapon bearers. they served on the committees which reviewed the presentments of the hundreds and village, and carried the record of the county court to westminster when summoned there by the kings' justices. they served on the grand assize. as elected representatives of their fellow knights of the county, they assessed any taxes due from each hundred. election might be by nomination by the sheriff from a fixed list, by choice, or in rotation. they investigated and reported on local abuses and grievances. the king's justices and council often called on them to answer questions put to them on oath. in the villages, humbler freeholders and sokemen were elected to assess the village taxes. six villeins answered for the village's offenses before the royal itinerant justice. reading and writing in the english language was taught. the use of english ceased to be a mark of vulgarity. in 1258 the first governmental document was issued in english as well as in latin and french, and later latin started falling into disuse. boys of noblemen were taught reading, writing, latin, a musical instrument, athletics, riding, and gentlemanly conduct. girls were taught reading, writing, music, dancing, and perhaps household nursing and first aid, spinning, embroidery, and gardening. girls of high social position were also taught riding and hawking. grammar schools taught, in latin, grammar, dialectic (ascertaining word meaning by looking at its origin, its sound (e.g. soft or harsh), its power (e.g. robust and strong sound), its inflection, and its order; and avoiding obscurity and ambiguity in statements), and rhetoric [art of public speaking, oratory, and debate]. the teacher possessed the only complete copy of the latin text, and most of the school work was done orally. though books were few and precious, the students read several latin works. girls and boys of high social position usually had private teachers for grammar school, while boys of lower classes were sponsored at grammar schools such as those at oxford. discipline was maintained by the birch or rod. there was no examination for admission as an undergraduate to oxford, but a knowledge of latin with some skill in speaking latin was a necessary background. the students came from all backgrounds. some had their expenses paid by their parents, while others had the patronage of a churchman, a religious house, or a wealthy layman. they studied the "liberal arts", which derived its name from "liber" or free, because they were for the free men of rome rather than for the economic purposes of those who had to work. the works of greek authors such as aristotle were now available; the european monk thomas aquinas had edited aristotle's works to reconcile them to church doctrine. he opined that man's intellectual use of reason did not conflict with the religious belief that revelation came only from god, because reason was given to man by god. he shared aristotle's belief that the earth was a sphere, and that the celestial bodies moved around it in perfect circles. latin learning had already been absorbed without detriment to the church. a student at oxford would become a master after graduating from a seven year course of study of the seven liberal arts: [grammar, rhetoric (the source of law), aristotelian logic (which differentiates the true from the false), arithmetic, including fractions and ratios, (the foundation of order), geometry, including methods of finding the length of lines, the area of surfaces, and the volume of solids, (the science of measurement), astronomy (the most noble of the sciences because it is connected with divinity and theology), music and also aristotle's philosophy of physics, metaphysics, and ethics; and then lecturing and leading disputations for two years. he also had to write a thesis on some chosen subject and defend it against the faculty. a master's degree gave one the right to teach. further study for four years led to a doctorate in one of the professions: theology and canon or civil law. there were about 1,500 students in oxford. they drank, played dice, quarreled a lot and begged at street corners. there were mob fights between students from the north and students from the south and between students and townsmen. but when the mayor of oxford hanged two students accused of being involved in the killing of a townswoman, many masters and students left for cambridge. in 1214, a charter created the office of chancellor of the university at oxford. he was responsible for law and order and, through his court, could fine, imprison, and excommunicate offenders and expel undesirables such as prostitutes from the town. he had authority over all crimes involving scholars, except murder and mayhem. the chancellor summoned and presided over meetings of the masters and came to be elected by indirect vote by the masters who had schools, usually no more than a room or hall with a central hearth which was hired for lectures. students paid for meals there. corners of the room were often partitioned off for private study. at night, some students slept on the straw on the floor. six hours of sleep were considered sufficient. in 1231, the king ordered that every student must have his name on the roll of a master and the masters had to keep a list of those attending his lectures. in 1221 the friars established their chief school at oxford. they were bound by oaths of poverty, obedience, and chastity, but were not confined within the walls of a monastery. they walked barefoot from place to lace preaching. they begged for their food and lodgings. they replaced monks, who had become self-indulgent, as the most vital spiritual force among the people. the first college was founded in 1264 by walter de merton, former chancellor to the king, at oxford. a college had the living arrangements of a hall, with the addition of monastic-type rules. a warden and about 30 scholars lived and ate meals together in the college buildings. merton college's founding documents provided that: [1] "the house shall be called the house of the scholars of merton, and it shall be the residence of the scholars forever. [2] there shall be a constant succession of scholars devoted to the study of letters, who shall be bound to employ themselves in the study of arts or philosophy, the canons or theology. let there also be one member of the collegiate body, who shall be a grammarian, and must entirely devote himself to the study of grammar; let him have the care of the students in grammar, and to him also let the more advanced have recourse without a blush, when doubts arise in their faculty. [3] there is to be one person in every chamber, where scholars are resident, of more mature age than the others, who is to make his report of their morals and advancement in learning to the warden [4] the scholars who are appointed to the duty of studying in the house are to have a common table, and a dress as nearly alike as possible. [5] the members of the college must all be present together, as far as their leisure serves, at the canonical hours and celebration of masses on holy and other days. [6] the scholars are to have a reader at meals, and in eating together they are to observe silence, and to listen to what is read. in their chambers, they must abstain from noise and interruption of their fellows; and when they speak they must use the latin language. [7] a scrutiny shall be held in the house by the warden and the seniors, and all the scholars there present, three times a year; a diligent inquiry is to be instituted into the life, conduct, morals, and progress in learning, of each and all; and what requires correction then is to be corrected, and excesses are to be visited with condign punishment. . ." educated men (and those of the 1200s through the 1500s), believed that the earth was the center of the universe and that it was surrounded by a giant spherical dome on which the stars were placed. the sun and moon and planets were each on a sphere around the earth that was responsible for their movements. the origin of the word "planet" meant "wanderer" because the motion of the planets changed in direction and speed. astrology explained how the position of the stars and planets influenced man and other earthly things. for instance, the position of the stars at a person's birth determined his character. the angle and therefore potency of the sun's rays influenced climate, temperament, and changes of mortal life such as disease and revolutions. unusual events such as the proximity of two planets, a comet, an eclipse, a meteor, or a nova were of great significance. a star often was thought to presage the birth of a great man or a hero. there was a propitious time to have a marriage, go on a journey, make war, and take herbal medicine or be bled by leeches, the latter of which was accompanied by religious ceremony. cure was by god, with medical practitioners only relieving suffering. but there were medical interventions such as pressure and binding were applied to bleeding. arrow and sword wounds to the skin or to any protruding intestine were washed with warm water and sewn up with needle and silk thread. ribs were spread apart by a wedge to remove arrow heads. fractured bones were splinted or encased in plaster. dislocations were remedied. hernias were trussed. bladder stones blocking urination were pushed back into the bladder or removed through an artificial opening in the bladder. surgery was performed by butchers, blacksmiths, and barbers. roger bacon, an oxford master, began the science of physics. he read arab writers on the source of light rays being from the object seen, the nature of refraction and reflection of light, and the properties of lenses. he studied the radiation of light and heat. he studied angles of reflection in plane, spherical, cylindrical, and conical mirrors, in both their concave and convex aspects. he did experiments in refraction in different media, e.g. air, water, and glass, and knew that the human cornea refracted light, and that the human eye lens was doubly convex. he comprehended the magnifying power of convex lenses and conceptualized the combination of lenses which would increase the power of vision by magnification. he realized that rays of light pass so much faster than those of sound or smell that the time is imperceptible to humans. he knew that rays of heat and sound penetrate all matter without our awareness and that opaque bodies offered resistance to passage of light rays. he knew the power of parabolic concave mirrors to cause parallel rays to converge after reflection to a focus and knew that a mirror could be produced that would start a fire at a fixed distance. these insights made it possible for jewelers and weavers to use lenses to view their work instead of glass globes full of water, which distorted all but the center of the image: "spherical aberration". the lens, whose opposite surfaces were sections of spheres, took the place of the central parts of the globe over the image. he knew about magnetic poles attracting, if different and repelling, if the same, and the relation of magnets' poles to those of the heavens and earth. he calculated the circumference of the world and the latitude and longitude of terrestrial positions. he foresaw sailing around the world. he studied the planetary motions and astronomical tables to forecast future events. he did calculations on days in a month and days in a year which later contributed to the legal definition of a leap year. his explanation of a rainbow as a result of natural laws was contrary to theological opinion that a rainbow was placed in the heavens to assure mankind that there was not to be another universal deluge. bacon began the science of chemistry when he took the empirical knowledge as to a few metals and their oxides and some of the principal alkalis, acids, and salts to the abstract level of metals as compound bodies the elements of which might be separated and recomposed and changed among the states of solid, liquid, and gas. when he studied man's physical nature, health, and disease, he opined that the usefulness of a talisman was not to bring about a physical change, but to bring the patient into a frame of mind more conducive to physical healing. he urged that there be experiments in chemistry to develop medicinal drugs. he studied different kinds of plants and the differences between arable land, forest land, pasture land, and garden land. bacon was an extreme proponent of the inductive method of finding truths, e.g. by categorizing all available facts on a certain subject to ascertain the natural laws governing it. his contribution to the development of science was abstracting the method of experiment from the concrete problem to see its bearing and importance as a universal method of research. he advocated changing education to include studies of the natural world using observation, exact measurement, and experiments. the making and selling of goods diverged e.g. as the cloth merchant severed from the tailor and the leather merchant severed from the butcher. these craftsmen formed themselves into guilds, which sought charters to require all craftsmen to belong to the guild of their craft, to have legal control of the craft work, and be able to expel any craftsman for disobedience. these guilds were composed of master craftsmen, their journeymen, and apprentices. these guilds determined the wages and working conditions of the craftsmen and petitioned the borough authorities for ordinances restraining trade, for instance by controlling the admission of outsiders to the craft, preventing foreigners from selling in the town except at fairs, limiting purchases of raw materials to suppliers within the town, forbidding night work, restricting the number of apprentices to each master craftsmen, and requiring a minimum number of years for apprenticeships. in return, these guilds assured quality control. in some boroughs, they did work for the town, such as maintaining certain defensive towers or walls of the town near their respective wards. in some boroughs, fines for infractions of these regulations were split between the guild and the government. in some towns, the merchant guilds attempted to directly regulate the craft guilds. crafts fought each other. there was a street battle with much bloodshed between the goldsmiths and the parmenters and between the tailors and the cordwainers in 1267 in london. there was also a major fight between the goldsmiths and the tailors in 1268. the parish clerks' company was chartered in 1233. the citizens of london had a common seal for the city. london merchants traveled throughout the nation with goods to sell exempt from tolls. most of the london aldermen were woolmongers, vintners, skinners, and grocers by turns or carried on all these branches of commerce at once. jews were allowed to make loans with interest up to 2d. a week for 20s. lent. there are three inns in london. inns typically had narrow facades, large courtyards, lodging and refreshment for the well-off, warehousing and marketing facilities for merchants, and stabling and repairs for wagons. caregiving infirmaries such as "bethlehem hospital" were established in london. one was a lunatic infirmary founded by the sheriff of london. benefactors conveyed plots of land with houses to the city for the benefit and use of the franciscan friars who came to london as missionaries because the friars' law forbade them from owning anything. the city held the land in trust for the beneficiaries, the friars. only tiles were used for roofing in london, because wood shingles were fire hazards and fires in london had been frequent. some areas near london are disclaimed by the king to be royal forest land, so all citizens could hunt there and till their land there without interference by the royal foresters. the sheriff's court in london lost its old importance and handled mainly trespass and debt cases, while important cases went to the hustings, which was presided over by the mayor with the sheriffs and aldermen in attendance. from the early 1200s, the mayor's court took on the work which the weekly husting could not manage. this consisted mostly of assault and robbery cases. murder and manslaughter cases were left to the royal courts. london aldermen were elected by the citizens of their respective wards in wardmotes, in which was also arranged the watch, protection against fire, and probably also assessment of the taxes within the ward. there was much effort by the commoners to influence the governance of the city. in 1261 they forced their way into the townmote and by this brute show of strength, which threatened riot, they made their own candidate mayor. subsequent elections were tumultuous. the tower of london now had outer walls of fortress buildings surrounded by a wide and deep moat, over which was one stone causeway and wooden drawbridge. within this was an inner curtain wall with twelve towers and an inner moat. the palace within was a principal residence of english monarchs, whose retinue was extensive, including the chief officers of state: lord high steward, lord high chancellor, lord high treasurer, lord great chamberlain, lord high constable, keeper of the seals, and the king's marshall; lesser officials such as the chamberlain of the candles, keeper of the tents, master steward of the larder, usher of the spithouse, marshall of the trumpets, keeper of the books, keeper of the dishes and of the cups, and steward of the buttery; and numbers of cat hunters, wolf catchers, clerks and limners, carters, water carriers, washerwomen and laundresses, chaplains, lawyers, archers, huntsmen, hornblowers, barbers, minstrels, guards and servitors, and bakers and confectioners. the fortress also contained a garrison, armory, chapels, stables, forge, wardrobe for a tailor's workroom and secure storage of valuable clothes, silver plate, and expensive imports such as sugar, rice, almonds, dried fruits, cinnamon, saffron, ginger, galingale, zedoary, pepper, nutmeg, and mace. there was a kitchen with courtyard for cattle, poultry, and pigs; dairy, pigeon loft, brewery, beehives, fruit stores, gardens for vegetables and herbs; and sheds for gardeners. there was also a mint, which minted a gold penny worth 2s. of silver, a jewel house, and a menagerie (with leopards, lions, a bear, and an elephant). the fortress also served as a state prison. most prisoners there had opposed the royal will; they were usually permitted to live in quarters in the same style they were used to, including servants and visits by family and friends. but occasionally prisoners were confined in irons in dark and damp dungeons. the king's family, immediate circle, and most distinguished guests dined elegantly in the great hall at midday. they would first wash their hands in hot water poured by servants over bowls. the table had silver plate, silver spoons, and cups of horn, crystal, maple wood, or silver laid on a white cloth. each guest brought his own knife in a leather sheath attached to a belt or girdle. a procession of servitors brought the many dishes to which the gentlemen helped the ladies and the young their seniors by placing the food in scooped-out half-loaves of bread that were afterwards distributed to the poor. a wine cup was handed around the table. in the winter after dinner, there would often be games of chess or dice or songs of minstrels, and sometimes dancing, juggler or acrobat displays, or storytelling by a minstrel. in the summer there were outdoor games and tournaments. hunting with hounds or hawks was popular with both ladies and gentlemen. the king would go to bed on a feather mattress with fur coverlet that was surrounded by linen hangings. his grooms would sleep on trundle beds in the same room. the queen likewise shared her bedchamber with several of her ladies sleeping on trundle beds. breakfast was comprised of a piece of bread and a cup of wine taken after the daily morning mass in one of the chapels. sometimes a round and deep tub was brought into the bedchamber by servants who poured hot water onto the bather in the tub. baths were often taken in the times of henry iii, who believed in cleanliness and sanitation. henry iii was also noted for his luxurious tastes. he had a linen table cloth, goblets of mounted cocoa-nut, a glass cup set in crystal, and silk and velvet mattresses, cushions, and bolster. he had many rooms painted with gold stars, green and red lions, and painted flowers. to his sister on her marriage, he gave goldsmith's work, a chess table, chessmen in an ivory box, silver pans and cooking vessels, robes of cloth of gold, embroidered robes, robes of scarlet, blue, and green fine linen, genoese cloth of gold, two napkins, and thirteen towels. in the king's 1235 grant to oxford, the mayor and good men were authorized to take weekly for three years 1/2 d. on every cart entering the town loaded with goods, if it was from the county, or 1d. if it came from outside the county; 1/4 d. for every horse load, except for brushwood; 1/2 d. on every horse, mare, ox, or cow brought to sell; and 1/2 d. for every five sheep, goats, or pigs. english ships had one mast with a square sail. the hulls were made of planks overlapping each other. there was a high fore castle [tower] on the bow, a top castle on the mast, and a high stern castle from which to shoot arrows down on other ships. there were no rowing oars, but steering was still by an oar on the starboard side of the ship. the usual carrying capacity was 30 tuns [big casks of wine each with about 250 gallons]. on the coasts there were lights and beacons. harbors at river mouths were kept from silting up. ships were loaded from piers. the construction of london bridge had just been finished. bricks began to be imported for building. about 10% of the population lived in towns. churches had stained glass windows. newcastle-on-tyne received these new rights: 1. -and that they shall justly have their lands and tenures and mortgages and debts, whoever owes them to them. 2. -concerning their lands and tenures within the town, right shall be done to them according to the custom of the city winton. 3. -and of all their debts which are lent in newcastle-on-tyne and of mortgages there made, pleas shall be held at newcastle-on-tyne. 4. -none of them shall plead outside the walls of the city of newcastle-on-tyne on any plea, except pleas of tenures outside the city and except the minters and my ministers. 5. -that none of them be distrained by any without the said city for the repayment of any debt to any person for which he is not capital debtor or surety. 6. -that the burgesses shall be quit of toll and lastage [duty on a ship's cargo] and pontage [tax for repairing bridges] and have passage back and forth. 7. -moreover, for the improvement of the city, i have granted them that they shall be quit of year's gift and of scotale [pressure to buy ale at the sheriff's tavern], so that my sheriff of newcastle-on-tyne or any other minister shall not make a scotale. 8. -and whosoever shall seek that city with his merchandise, whether foreigners or others, of whatever place they may be, they may come sojourn and depart in my safe peace, on paying the due customs and debts, and any impediment to these rights is prohibited. 9. -we have granted them also a merchant guild. 10. and that none of them [in the merchant guild] shall fight by combat. the king no longer lives on his own from income from his own lands, but takes money from the treasury. a tax of a percentage of 1/15 the of personal property was levied in 1225 for a war, in return for which the king signed the magna carta. it was to be paid by all tenants-in-chief, men of the royal domain, burgesses of the boroughs and cities, clerical tenants-in-chief, and religious houses. the percentage tax came to be used frequently and ranged from about 1/40 th to 1/5 th. in 1294, this tax was bifurcated into one percentage amount for the rural districts and a higher one for urban districts, because the burgesses had greater wealth and much of it was hard to uncover because it was in the possession of customers and debtors. it was usually 1/10 th for towns and royal domains and 1/15 th in the country. this amount of money collected by this tax increased with the wealth of the country. the king takes custody of lands of lunatics and idiots, as well as escheats of land falling by descent to aliens. henry iii took 20s. from his tenants-in-chief for the marriage of his daughter, and two pounds for the knighting of his son. by 1250, the king was hiring soldiers at 2s. per day for knights, and 9d. a day for less heavily armed soldiers, and 6d. a day for crossbowmen. some castle-guard was done by watchmen hired at 2d. a day. ships were impressed when needed. sometimes private ships were authorized to ravage the french coasts and take what spoil they could. while king henry iii was underage, there was much controversy as to who should be his ministers of state, such as justiciar, chancellor, and treasurer. this led to the concept that they should not be chosen by the king alone. after he came of age, elected men from the baronage fought to have meetings and his small council in several conferences called great councils or parliaments (from french "to speak the mind") to discuss the levying of taxes and the solution of difficult legal cases, the implementation of the magna carta, the appointment of the king's ministers and sheriffs, and the receipt and consideration of petitions. the barons paid 1/30 the tax on their personal property to have three barons of their choice added to the council. statutes were enacted. landholders were given the duty of electing four of their members in every county to ensure that the sheriff observed the law and to report his misdemeanors to the justiciar. they were also given the duty of electing four men from the county from whom the exchequer was to choose the sheriff of the year. earl montfort and certain barons forced king henry iii to summon a great council or parliament in 1265 in which the common people were represented officially by two knights from every county, two burgesses from every borough, and two representatives from each major port. so the king's permanent small council became a separate body from parliament and its members took a specific councilor's oath in 1257 to give faithful counsel, to keep secrecy, to prevent alienation of ancient demesne, to procure justice for the rich and poor, to allow justice to be done on themselves and their friends, to abstain from gifts and misuse of patronage and influence, and to be faithful to the queen and to the heir. the law the barons forced successive kings to sign the magna carta until it became the law of the land. it became the first statute of the official statute book. its provisions express the principle that a king is bound by the law and is not above it. however, there is no redress if the king breaches the law. the magna carta was issued by john in 1215. a revised version was issued by henry iii in 1225 with the forest clauses separated out into a forest charter. the two versions are replicated together, with the formatting of each indicated in the titles below. {magna carta 1215} magna carta 1215 & 1225 magna carta 1225 {john, by the grace of god, king of england, lord of ireland, duke of normandy and aquitaine, and count of anjou: to the archbishops, bishops, abbots, earls, barons, justiciaries, foresters, sheriffs, reeves, ministers, and all bailiffs and others, his faithful subjects, greeting. know ye that in the presence of god, and for the health of our soul, and the souls of our ancestors and heirs, to the honor of god, and the exaltation of holy church, and amendment of our realm, by the advice of our reverend fathers, stephen, archbishop of canterbury, primate of all england, and cardinal of the holy roman church; henry, archbishop of dublin; william of london, peter of winchester, jocelin of bath and glastonbury, hugh of lincoln, walter of worcester, william of coventry, and benedict of rochester, bishops; master pandulph, the pope's subdeacon and familiar; brother aymeric, master of the knights of the temple in england; and the noble persons, william marshall, earl of pembroke; william, earl of salisbury; william, earl of warren; william, earl of arundel; alan de galloway, constable of scotland; warin fitz-gerald, peter fitz-herbert, hubert de burgh, seneshal of poitou, hugh de neville, matthew fitz-herbert, thomas basset, alan basset, philip daubeny, robert de roppelay, john marshall, john fitz-hugh, and others, our liegemen:} henry by the grace of god, king of england, lord of ireland, duke of normandy and guyan and earl of anjou, to all archbishops, bishops, abbots, priors, earls, barons, sheriffs, provosts, officers and to all bailiffs and other our faithful subjects which shall see this present charter, greeting. know ye that we, unto the honor of almighty god, and for the salvation of the souls of our progenitors and successors kings of england, to the advancement of holy church and amendment of our realm, of our mere and free will, have given and granted to all archbishops, bishops, abbots, priors, earls, barons, and to all free men of this our realm, these liberties following, to be kept in our kingdom of england forever. [i. a confirmation of liberties] first, we have granted to god, and by this our present charter confirmed, for us and our heirs forever, that the english church shall be free and enjoy her whole rights and her liberties inviolable. {and that we will this so to be observed appears from the fact that we of our own free will, before the outbreak of the dissensions between us and our barons, granted, confirmed, and procured to be confirmed by pope innocent iii the freedom of elections, which is considered most important and necessary to the english church, which charter we will both keep ourself and will it to be kept with good faith by our heirs forever.} we have also granted to all the free men of our realm, for us and our heirs forever, all the liberties underwritten, to have and to hold to them and their heirs of us and our heirs. [ii. the relief of the king's tenant of full age] if any of our earls, barons, or others who hold of us in chief by knight's service dies, and at the time of his death his heir is of full age and owes to us a relief, he shall have his inheritance on payment of [no more than] the old relief; to wit, the heir or heirs of an earl, for an entire earldom, 100 pounds [2,000s.]; the heir or heirs of a baron of an entire barony, {100 pounds} 100 marks; the heir or heirs of an entire knight's fee, 100s. at the most [about 1/3 of a knight's annual income]; and he who owes less shall give less, according to the old custom of fees. [iii. the wardship of an heir within age. the heir a knight] but if the heir of such be under age, his lord shall not have the ward of him, nor of his land, before that he has taken of him homage. if, however, any such heir is under age and in ward, he shall have his inheritance without relief or fine when he comes of age, that is, twenty-one years of age. so that if such an heir not of age is made a knight, yet nevertheless his land shall remain in the keeping of his lord unto the aforesaid term. [iv. no waste shall be made by a guardian in ward's lands] the guardian of the land of any heir thus under age shall take therefrom only reasonable issues, customs, and services, without destruction or waste of men or goods. and if we commit the custody of any such land to the sheriff or any other person answerable to us for the issues of the same land, and he commits destruction or waste, we will take an amends from him and recompense therefore. and the land shall be committed to two lawful and discreet men of that fee, who shall be answerable for the issues of the same land to us or to whomsoever we shall have assigned them. and if we give or sell the custody of any such land to any man, and he commits destruction or waste, he shall lose the custody, which shall be committed to two lawful and discreet men of that fee, who shall, in like manner, be answerable to us as has been aforesaid. [v. guardians shall maintain the inheritance of their wards and of bishopricks, etc.] the guardian, so long as he shall have the custody of the land, shall keep up and maintain the houses, parks, fishponds, pools, mills, and other things pertaining thereto, out of the issues of the same, and shall restore to the heir when he comes of age, all his land stocked with {ploughs and tillage, according as the season may require and the issues of the land can reasonably bear} ploughs and all other things, at the least as he received it. all these things shall be observed in the custodies of vacant archbishopricks, bishopricks, abbeys, priories, churches, and dignities, which appertain to us; except this, that such custody shall not be sold. [vi. heirs shall be married without disparagement] heirs shall be married without loss of station. {and the marriage shall be made known to the heir's nearest of kin before it is agreed.} [vii. a widow shall have her marriage, inheritance, and querentine (period of forty days during which the widow has a privilege of remaining in the mansion house of which her husband died seized). the king's widow, etc.] a widow, after the death of her husband, shall immediately and without difficulty have her marriage portion [property given to her by her father] and inheritance. she shall not give anything for her marriage portion, dower, or inheritance which she and her husband held on the day of his death, and she may remain in her husband's house for forty days after his death, within which time her dower shall be assigned to her. if that house is a castle and she leaves the castle, then a competent house shall forthwith be provided for her, in which she may honestly dwell until her dower is assigned to her as aforesaid; and in the meantime her reasonable estovers of the common [necessaries or supplies such as wood], etc. no widow shall be compelled [by penalty of fine] to marry so long as she has a mind to live without a husband, provided, however, that she gives security that she will not marry without our assent, if she holds of us, or that of the lord of whom she holds, if she holds of another. [viii. how sureties shall be charged to the king] neither we nor our bailiffs shall seize any land or rent for any debt as long as the debtor's goods and chattels suffice to pay the debt and the debtor himself is ready to satisfy therefore. nor shall the debtor's sureties be distrained as long as the debtor is able to pay the debt. if the debtor fails to pay, not having the means to pay, or will not pay although able to pay, then the sureties shall answer the debt. and, if they desire, they shall hold the debtor's lands and rents until they have received satisfaction of that which they had paid for him, unless the debtor can show that he has discharged his obligation to them. {if anyone who has borrowed from the jews any sum of money, great or small, dies before the debt has been paid, the heir shall pay no interest on the debt as long as he remains under age, of whomsoever he may hold. if the debt falls into our hands, we will take only the principal sum named in the bond.} {and if any man dies indebted to the jews, his wife shall have her dower and pay nothing of that debt; if the deceased leaves children under age, they shall have necessaries provided for them in keeping with the estate of the deceased, and the debt shall be paid out of the residue, saving the service due to the deceased's feudal lords. so shall it be done with regard to debts owed persons other than jews.} [ix. the liberties of london and other cities and towns confirmed] the city of london shall have all her old liberties and free customs, both by land and water. moreover, we will and grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs. {no scutage or aid shall be imposed in our realm unless by common counsel thereof, except to ransom our person, make our eldest son a knight, and once to marry our eldest daughter, and for these only a reasonable aid shall be levied. so shall it be with regard to aids from the city of london.} {to obtain the common counsel of the realm concerning the assessment of aids (other than in the three aforesaid cases) or of scutage, we will have the archbishops, bishops, abbots, earls, and great barons individually summoned by our letters; we will also have our sheriffs and bailiffs summon generally all those who hold lands directly of us, to meet on a fixed day, but with at least forty days' notice, and at a fixed place. in all such letters of summons, we will explain the reason therefor. after summons has thus been made, the business shall proceed on the day appointed, according to the advice of those who are present, even though not all the persons summoned have come.} {we will not in the future grant permission to any man to levy an aid upon his free men, except to ransom his person, make his eldest son a knight, and once to marry his eldest daughter, and on each of these occasions only a reasonable aid shall be levied.} [x. none shall distrain for more service than is due.] no man shall be compelled to perform more service for a knight's fee nor any freehold than is due therefrom. [xi. common pleas shall not follow the king's court] people who have common pleas shall not follow our court traveling about the realm, but shall be heard in some certain place. [xii. where and before whom assizes shall be taken. adjournment for difficulty] {land assizes of novel disseisin, mort d'ancestor and darrein presentment shall be heard only in the county where the property is situated, and in this manner: we or, if we are not in the realm, our chief justiciary, shall send two justiciaries through each county four times a year [to clear and prevent backlog], and they, together with four knights elected out of each county by the people thereof, shall hold the said assizes in the county court, on the day and in the place where that court meets.} assizes of novel disseisin, mort d'ancestor shall be heard only in the county where the property is situated, and in this manner: we, or if we are not in the realm, our chief justiciary, shall send justiciaries through each county once a year, and they together with knights of that county shall hold the said assizes in the county. {if the said assizes cannot be held on the day appointed, so many of the knights and freeholders as were present on that day shall remain as will be sufficient for the administration of justice, according to the amount of business to be done.} and those things that at the coming of our foresaid justiciaries, being sent to take those assizes in the counties, cannot be determined, shall be ended by them in some other place in their circuit; and those things which for difficulty of some articles cannot be determined by them, shall be referred to our justices of the bench and there shall be ended. [xiii. assizes of darrein presentment] assizes of darrein presentment shall always be taken before our justices of the bench and there shall be determined. [xiv. how men of all sorts shall be amerced and by whom] a freeman shall be amerced [made to pay a fine to the king] for a small offense only according to the degree thereof, and for a serious offense according to its magnitude, saving his position and livelihood; and in like manner a merchant, saving his trade and merchandise, and a villein saving his tillage, if they should fall under our mercy. none of these amercements shall be imposed except by the oath of honest men of the neighborhood. earls and barons shall be amerced only by their peers, and only in accordance with the seriousness of the offense. {no amercement shall be imposed upon a cleric's lay tenement, except in the manner of the other persons aforesaid, and without regard to the value of his ecclesiastical benefice.} no man of the church shall be amerced except in accordance with the seriousness of the offense and after his lay tenement, but not after the quantity of his spiritual benefice. [xv. making of bridges and banks] no town or freeman shall be compelled to build bridges over rivers or banks except those bound by old custom and law to do so. [xvi. defending of banks] no banks [land near a river] shall be defended [used by the king alone, e.g. for hunting], from henceforth, but such as were in defense in the time of king henry [ii] our grandfather, by the same places and in the same bounds as in his time. [xvii. holding pleas of the crown] no sheriff, constable, coroners, or other of our bailiffs shall hold pleas of our crown [but only justiciars, to prevent disparity of punishments and corruption]. {all counties, hundreds, wapentakes, and tithings (except our demesne manors) shall remain at the old rents, without any increase.} [xviii. the king's debtor dying, the king shall be first paid] if anyone holding a lay fee of us dies, and our sheriff or our bailiff show our letters patent [public letter from a sovereign or one in authority] of summons for a debt due to us from the deceased, it shall be lawful for such sheriff or bailiff to attach and list the goods and chattels of the deceased found in the lay fee to the value of that debt, by the sight and testimony of lawful men [to prevent taking too much], so that nothing thereof shall be removed therefrom until our whole debt is paid; then the residue shall be given up to the executors to carry out the will of the deceased. if there is no debt due from him to us, all his chattels shall remain the property of the deceased, saving to his wife and children their reasonable shares. {if any freeman dies intestate, his chattels shall be distributed by his nearest kinfolk and friends, under supervision of the church, saving to each creditor the debts owed him by the deceased.} [xix. purveyance for a castle] no constable or other of our bailiffs shall take grain or other chattels of any man without immediate payment, unless the seller voluntarily consents to postponement of payment. this applies if the man is not of the town where the castle is. but if the man is of the same town as where the castle is, the price shall be paid to him within 40 days. [xx. doing of castle-guard] no constable shall compel any knight to give money for keeping of his castle in lieu of castle-guard when the knight is willing to perform it in person or, if reasonable cause prevents him from performing it himself, by some other fit man. further, if we lead or send him into military service, he shall be excused from castle-guard for the time he remains in service by our command. [xxi. taking of horses, carts, and wood] no sheriff or bailiff of ours, or any other man, shall take horses or carts of any freeman for carriage without the owner's consent. he shall pay the old price, that is, for carriage with two horses, 10d. a day; for three horses, 14d. a day. no demesne cart of any spiritual person or knight or any lord shall be taken by our bailiffs. neither we nor our bailiffs will take another man's wood for our castles or for other of our necessaries without the owner's consent. [xxii. how long felons' lands shall be held by the king] we will hold the lands of persons convicted of felony for only a year and a day [to remove the chattels and movables], after which they shall be restored to the lords of the fees. [xxiii. in what place weirs shall be removed] all fishweirs [obstructing navigation] shall be entirely removed by the thames and medway rivers, and throughout england, except upon the seacoast. [xxiv. in what case a praecipe in capite is not grantable] the [royal] writ called "praecipe in capite" [for tenements held in chief of the crown] shall not in the future be granted to anyone respecting any freehold if thereby a freeman [who has a mesne lord] may not be tried in his lord's court. [xxv. there shall be but one measure throughout the realm] there shall be one measure of wine throughout our realm, one measure of ale, and one measure of grain, to wit, the london quarter, and one breadth of dyed cloth, russets, and haberjets, to wit, two {ells} yards within the selvages. as with measures so shall it also be with weights. [xxvi. inquisition of life and limb] henceforth nothing shall be given or taken for a writ of inquisition upon life or limb, but it shall be granted freely and not denied. [xxvii. tenure of the king in socage and of another by knight's service. petty serjeanty.] if anyone holds of us by fee farm, socage, or burgage, and also holds land of another by knight's service, we will not by reason of that fee farm, socage, or burgage have the wardship of his heir, or the land which belongs to another man's fee. nor will we have the custody of such fee farm, socage, or burgage unless such fee farm owe knight's service. we will not have the wardship of any man's heir, or the land which he holds of another by knight's service, by reason of any petty serjeanty which he holds of us by service of rendering us knives, arrows, or the like. [xxviii. wages of law shall not be without witness] in the future no [royal] bailiff shall upon his own unsupported accusation put any man to trial or oath without producing credible witnesses to the truth of the accusation. [xxix. none shall be condemned without trial. justice shall not be sold or delayed.] no freeman shall be taken, imprisoned, disseised of his freehold or liberties or free customs, or be outlawed, banished, or in any way ruined, nor will we prosecute or condemn him, except by the lawful judgment of his peers or by the law of the land. to no one will we sell [by bribery], to none will we deny or delay, right or justice. [xxx. merchant strangers coming into this realm shall be well used] all merchants shall have safe conduct to go and come out of and into england, and to stay in and travel through england by land and water, to buy and sell, without evil tolls, in accordance with old and just customs, except, in time of war, such merchants as are of a country at war with us. if any such be found in our realm at the outbreak of war, they shall be detained, without harm to their bodies or goods, until it be known to us or our chief justiciary how our merchants are being treated in the country at war with us. and if our merchants are safe there, then theirs shall be safe with us. {henceforth anyone, saving his allegiance due to us, may leave our realm and return safely and securely by land and water, except for a short period in time of war, for the common benefit of the realm.} [xxxi. tenure of a barony coming into the king's hands by escheat] if anyone dies holding of any escheat, such as the honor of wallingford, nottingham, boulogne, {lancaster,} or other escheats which are in our hands and are baronies, his heir shall not give any relief or do any service to us other than he would owe to the baron, if such barony had been in the baron's hands. and we will hold the escheat in the same manner in which the baron held it. nor shall we have, by occasion of any barony or escheat, any escheat or keeping of any of our men, unless he who held the barony or escheat elsewhere held of us in chief. persons dwelling outside the forest [in the county] need not in the future come before our justiciaries of the forest in answer to a general summons unless they are impleaded or are sureties for any person or persons attached for breach of forest laws. [xxxii. lands shall not be aliened to the prejudice of the lord's service] no freeman from henceforth shall give or sell any more of his land, but so that of the residue of the lands the lord of the fee may have the service due to him which belongs to the fee. {we will appoint as justiciaries, constables, sheriffs, or bailiffs only such men as know the law of the land and will keep it well.} [xxxiii. patrons of abbeys shall have the custody of them when vacant] all barons who had founded abbeys of which they have charters of english kings or old tenure, shall have the custody of the same when vacant, as is their due. all forests which have been created in our time shall forthwith be disafforested. {so shall it be done with regard to river banks which have been enclosed by fences in our time.} {all evil customs concerning forests and warrens [livestock grounds in forests], foresters and warreners, sheriffs and their officers, or riverbanks and their conservators shall be immediately investigated in each county by twelve sworn knights of such county, who are chosen by honest men of that county, and shall within forty days after this inquest be completely and irrevocably abolished, provided always that the matter has first been brought to our knowledge, or that of our justiciars, if we are not in england.} {we will immediately return all hostages and charters delivered to us by englishmen as security for the peace or for the performance of loyal service.} {we will entirely remove from their offices the kinsmen of gerald de athyes, so that henceforth they shall hold no office in england: engelard de cigogne, peter, guy, and andrew de chanceaux, guy de cigogne, geoffrey de martigny and his brothers, philip mark and his brothers, and geoffrey his nephew, and all their followers.} {as soon as peace is restored, we will banish from our realm all foreign knights, crossbowmen, sergeants, and mercenaries, who have come with horses and arms, to the hurt of the realm.} {if anyone has been disseised or deprived by us, without the legal judgment of his peers, of lands, castles, liberties, or rights, we will immediately restore the same, and if any disagreement arises on this, the matter shall be decided by judgment of the twentyfive barons mentioned below in the clause for securing the peace. with regard to all those things, however, of which any man was disseised or deprived, without the legal judgment of his peers, by king henry [ii] our father or our brother king richard, and which remain in our hands or are held by others under our warranty, we shall have respite during the term commonly allowed to the crusaders, excepting those cases in which a plea was begun or inquest made on our order before we took the cross; when, however, we return from our pilgrimage, or if perhaps we do not undertake it, we will at once do full justice in these matters.} {likewise, we shall have the same respite in rendering justice with respect to the disafforestation or retention of those forests which henry [ii] our father or richard our brother afforested, and concerning custodies of lands which are of the fee of another, which we hitherto have held by reason of the fee which some person has held of us by knight's service, and to abbeys founded on fees other than our own, in which the lord of that fee asserts his right. when we return from our pilgrimage, or if we do not undertake it, we will forthwith do full justice to the complainants in these matters.} [xxxiv. in what only case a woman shall have an appeal of death] no one shall be arrested or imprisoned upon a woman's appeal for the death of any person other than her husband [since no woman was expected to personally engage in trial by combat]. [xxxv. at what time shall be kept a county court, sheriff's turn and a leet court (courts of criminal jurisdiction excepting felonies)] no county court from henceforth shall be held, but from month to month; and where greater time has been used, there shall be greater. nor shall any sheriff, or his bailiff, keep his turn in the hundred but twice in the year; and no where but in due place and accustomed time, that is, once after easter, and again after the feast of saint michael. and the view of frankpledge [the right of assembling the whole male population over 12 years except clergy, earls, barons, knights, and the infirm, at the leet or soke court for the capital frankpledges to give account of the peace kept by individuals in their respective tithings] shall be likewise at the feast of saint michael without occasion, so that every man may have his liberties which he had, or used to have, in the time of king henry [ii] our grandfather, or which he has since purchased. the view of frankpledge shall be so done, that our peace may be kept; and that the tything be wholly kept as it has been accustomed; and that the sheriff seek no occasions, and that he be content with so much as the sheriff was wont to have for his view-making in the time of king henry our grandfather. [xxxvi. no land shall be given in mortmain] it shall not be lawful from henceforth to any to give his land to any religious house, and to take the same land again to hold of the same house [thereby extinguishing the feudal rights of the temporal lord]. nor shall it be lawful to any house of religion to take the lands of any, and to lease the same to him of whom he received it. if any from henceforth give his lands to any religious house, and thereupon be convicted, the gift shall be utterly void, and the land shall accrue to the lord of the fee. {all fines unjustly and unlawfully given to us, and all amercements levied unjustly and against the law of the land, shall be entirely remitted or the matter decided by judgment of the twenty-five barons mentioned below in the clause for securing the peace, or the majority of them, together with the aforesaid stephen, archbishop of canterbury, if he himself can be present, and any others whom he may wish to bring with him for the purpose; if he cannot be present, the business shall nevertheless proceed without him. if any one or more of the said twenty-five barons has an interest in a suit of this kind, he or they shall step down for this particular judgment, and be replaced by another or others, elected and sworn by the rest of the said barons, for this occasion only.} {if we have disseised or deprived the welsh of lands, liberties, or other things, without legal judgment of their peers, in england or wales, they shall immediately be restored to them, and if a disagreement arises thereon, the question shall be determined in the marches by judgment of their peers according to the law of england as to english tenements, the law of wales as to welsh tenements, the law of the marches as to tenements in the marches. the same shall the welsh do to us and ours.} {but with regard to all those things of which any welshman was disseised or deprived, without legal judgment of his peers, by king henry [ii] our father or our brother king richard, and which we hold in our hands or others hold under our warranty, we shall have respite during the term commonly allowed to the crusaders, except as to those matters whereon a suit had arisen or an inquisition had been taken by our command prior to our taking the cross. immediately after our return from our pilgrimage, or if by chance we do not undertake it, we will do full justice according to the laws of the welsh and the aforesaid regions.} {we will immediately return the son of llywelyn, all the welsh hostages, and the charters which were delivered to us as security for the peace.} {with regard to the return of the sisters and hostages of alexander, king of the scots, and of his liberties and rights, we will do the same as we would with regard to our other barons of england, unless it appears by the charters which we hold of william his father, late king of the scots, that it ought to be otherwise; this shall be determined by judgment of his peers in our court.} [xxxvii. subsidy in respect of this charter, and the charter of the forest, granted to the king.] escuage [service of the shield, a tenure in knights' service] from henceforth shall be taken as it was wont to be in the time of king henry [ii] our grandfather; reserving to all archbishops, bishops, abbots, priors, templers, hospitallers, earls, barons, and all persons as well spiritual as temporal; all their free liberties and free customs, which they have had in time passed. and all these customs and liberties aforesaid, which we have granted to be held within this our realm, as much as pertains to us and our heirs, we shall observe. {all the customs and liberties aforesaid, which we have granted to be enjoyed, as far as it pertains to us towards our people throughout our realm, let all our subjects, whether clerics or laymen, observe, as far as it pertains toward their dependents.} and all men of this our realm, as well spiritual as temporal (as much as in them is) shall observe the same against all persons in like wise. and for this our gift and grant of these liberties, and of other constrained in our charter of liberties of our forest, the archbishops, bishops, abbots, priors, earls, barons, knights, freeholders, and our other subjects, have given unto us the fifteenth part of all their movables. and we have granted unto them on the other part, that neither we, nor our heirs, shall procure or do any thing whereby the liberties in this charter contained shall be infringed or broken. and if any thing be procured by any person contrary to the premises, it shall be had of no force nor effect. [enforcement] {whereas we, for the honor of god and the reform of our realm, and in order the better to allay the discord arisen between us and our barons, have granted all these things aforesaid. we, willing that they be forever enjoyed wholly and in lasting strength, do give and grant to our subjects the following security, to wit, that the barons shall elect any twenty-five barons of the realm they wish, who shall, with their utmost power, keep, hold, and cause to be kept the peace and liberties which we have granted unto them and by this our present charter have confirmed, so that if we, our justiciary, bailiffs, or any of our ministers offends in any respect against any man, or transgresses any of these articles of peace or security, and the offense is brought before four of the said twenty-five barons, those four barons shall come before us, or our chief justiciary if we are out of the realm, declaring the offense, and shall demand speedy amends for the same. if we or, in case of our being out of the realm, our chief justiciary fails to afford redress within forty days from the time the case was brought before us or, in the event of our having been out of the realm, our chief justiciary, the aforesaid four barons shall refer the matter to the rest of the twenty-five barons, who, together with the commonalty of the whole country, shall distrain and distress us to the utmost of their power, to wit, by capture of our castles, lands, and possessions and by all other possible means, until compensation is made according to their decision, saving our person and that of our queen and children; as soon as redress has been had, they shall return to their former allegiance. anyone in the realm may take oath that, for the accomplishment of all the aforesaid matters, he will obey the orders of the said twenty-five barons and distress us to the utmost of his power; and we give public and free leave to everyone wishing to take oath to do so, and to none will we deny the same. moreover, all such of our subjects who do not of their own free will and accord agree to swear to the said twenty-five barons, to distrain and distress us together with them, we will compel to do so by our command in the aforesaid manner. if any one of the twenty-five barons dies or leaves the country or is in any way hindered from executing the said office, the rest of the said twenty-five barons shall choose another in his stead, at their discretion, who shall be sworn in like manner as the others. in all cases which are referred to the said twenty-five barons to execute, and in which a difference arises among them, supposing them all to be present, or in which not all who have been summoned are willing or able to appear, the verdict of the majority shall be considered as firm and binding as if the whole number had been of one mind. the aforesaid twenty-five shall swear to keep faithfully all the aforesaid articles and, to the best of their power, to cause them to be kept by others. we will not procure, either by ourself or any other, anything from any man whereby any of these concessions or liberties may be revoked or abated. if any such procurement is made, let it be null and void; it shall never be made use of either by us or by any other.} [amnesty] {we have also fully forgiven and pardoned all ill-will, wrath, and malice which has arisen between us and our subjects, both clergy and laymen, during the disputes, to and with all men. moreover, we have fully forgiven and, as far as it pertains to us, wholly pardoned to and with all, clergy and laymen, all offenses made in consequence of the said disputes from easter in the sixteenth year of our reign until the restoration of peace. over and above this, we have caused letters patent to be made for stephen, archbishop of canterbury, henry, archbishop of dublin, the above-mentioned bishops, and master pandulph, for the aforesaid security and concessions.} {wherefore we will that, and firmly command that, the english church shall be free and all men in our realm shall have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely, quietly, fully, and wholly, to them and their heirs, of us and our heirs, in all things and places forever, as is aforesaid. it is moreover sworn, as will on our part as on the part of the barons, that all these matters aforesaid shall be kept in good faith and without deceit. witness the above-named and many others. given by our hand in the meadow which is called runnymede, between windsor and staines, on the fifteenth day of june in the seventeenth year of our reign.} these being witnesses: lord s. archbishop of canterbury, e. bishop of london, f. bishop of bathe, g. of wincester, h. of lincoln, r. of salisbury, w. of rochester, x. of worcester, f. of ely, h. of hereford, r. of chichester, w. of exeter, bishops; the abbot of st. edmonds, the abbot of st. albans, the abbot of bello, the abbot of st. augustines in canterbury, the abbot of evesham, the abbot of westminster, the abbot of bourgh st. peter, the abbot of reding, the abbot of abindon, the abbot of malmbury, the abbot of winchcomb, the abbot of hyde, the abbot of certesey, the abbot of sherburn, the abbot of cerne, the abbot of abborebir, the abbot of middleton, the abbot of seleby, the abbot of cirencester, h. de burgh justice, h. earl of chester and lincoln, w. earl of salisbury, w. earl of warren, g. de clare earl of gloucester and hereford, w. de ferrars earl of derby, w. de mandeville earl of essex, h. de bygod earl of norfolk, w. earl of albemarle, h. earl of hereford, f. constable of chester, g. de tos, h. fitzwalter, r. de byponte, w. de bruer, r. de montefichet, p. fitzherbert, w. de aubenie, f. gresly, f. de breus, f. de monemue, f. fitzallen, h. de mortimer, w. de beuchamp, w. de st. john, p. de mauli, brian de lisle, thomas de multon, r. de argenteyn, g. de nevil, w. de mauduit, f. de balun, and others. given at westminster the 11th day of february the 9th year of our reign. we, ratifying and approving these gifts and grants aforesaid, confirm and make strong all the same for us and our heirs perpetually, and by the tenour of these presents, do renew the same; willing and granting for us and our heirs, that this charter, and all singular his articles, forever shall be steadfastly, firmly, and inviolably observed; and if any article in the same charter contained, yet hitherto peradventure has not been kept, we will, and by royal authority, command, from henceforth firmly they be observed. felonies are serious crimes which can be punished by loss of life or member. by common law, they now consist of homicide, mayhem, wounding, false imprisonment, arson, rape, robbery, burglary, and larceny. a felon's lands go to his lord or to the king and his chattels are confiscated. if a man accused of felony flies, he can be outlawed. treason was a special felony, which was punishable by hanging after being drawn behind a horse along the rough road to the gibbet. petty treason was treason to one's lord and included adultery with the lord's wife, violation of his daughter, and forgery of his seal. high treason was to the king and include clipping of the king's coin and making counterfeit money. a traitor's land was forfeited to the king. treason had no benefit of clergy. statutes which were enacted after the magna carta follow: nuisance is recognized by this statute: "every freeman, without danger, shall make in his own wood, or in his land, or in his water, which he has within our forest, mills, springs, pools, clay pits, dikes, or arable ground, so that it does not annoy any of his neighbors." anyone taking a widow's dower after her husband's death must not only return the dower, but pay damages in the amount of the value of the dower from the time of death of the husband until her recovery of seisin. widows may bequeath the crop of their ground as well of their dowers as of their other lands and tenements. freeholders of tenements on manors shall have sufficient ingress and egress from their tenements to the common pasture and as much pasture as suffices for their tenements. "grain shall not be taken under the pretense of borrowing or the promise of after-payment without the permission of the owner." "a parent or other who forcefully leads away and withholds, or marries off, an heir who is a minor (under 14), shall yield the value of the marriage and be imprisoned until he has satisfied the king for the trespass. if an heir 14 years or older marries without his lord's permission to defraud him of the marriage and the lord offers him reasonable and convenient marriage, without disparagement, then the lord shall hold his land beyond the term of his age, that, of twenty one years, so long that he may receive double the value of the marriage as estimated by lawful men, or after as it has been offered before without fraud or collusion, and after as it may be proved in the king's court. any lord who marries off a ward of his who is a minor and cannot consent to marriage, to a villain or other, such as a burgess, whereby the ward is disparaged, shall lose the wardship and all its profits if the ward's friends complain of the lord. the wardship and profit shall be converted to the use of the heir, for the shame done to him, after the disposition and provision of his friends." (the "marriage" could be annulled by the church.) "if an heir of whatever age will not marry at the request of his lord, he shall not be compelled thereunto; but when he comes of age, he shall pay to his lord the value of the marriage before receiving his land, whether or not he himself marries." "interest shall not run against any minor, from the time of death of his ancestor until his lawful age; so nevertheless, that the payment of the principal debt, with the interest that was before the death of his ancestor shall not remain." the value of debts to be repaid to the king or to any man shall be reasonably determined by the debtor's neighbors and not by strangers. a debtors' plough cattle or sheep cannot be taken to satisfy a debt. the wards and escheats of the king shall be surveyed yearly by three people assigned by the king. the sheriffs, by their counsel, shall approve and let to farm such wards and escheats as they think most profitable for the king. the sheriffs shall be answerable for the issues thereof in the exchequer at designated times. the collectors of the customs on wool exports shall pay this money at the two designated times and shall make yearly accounts of all parcels in ports and all ships. by statute leap year was standardized throughout the nation, "the day increasing in the leap year shall be accounted in that year", "but it shall be taken and reckoned in the same month wherein it grew and that day and the preceding day shall be counted as one day." "an english penny [1 d.], called a sterling, round and without any clipping, shall weigh 32 wheat grains dry in the middle of the ear." measurements of distance were standardized to twelve inches to a foot, three feet to a yard, and so forth up to an acre of land. goods which could only be sold by the standard weights and measures (such as ounces, pounds, gallons, bushels) included sacks of wool, leather, skins, ropes, glass, iron, lead, canvas, linen cloth, tallow, spices, confections cheese, herrings, sugar, pepper, cinnamon, nutmeg, wheat, barley, oats, bread, and ale. the prices required for bread and ale were based on the market price for the wheat, barley, and oats from which they were made. the punishment for repeated violations of required measures, weights, or prices of bread and ale by a baker or brewer; selling of spoiled or unwholesome wine, meat, fish by brewers, butchers, or cooks; or a steward or bailiff receiving a bribe was reduced to placement in a pillory with a shaven head so that these men would still be fit for military service and not overcrowd the gaols. forest penalties were changed so that "no man shall lose either life or member [limb] for killing of our deer. but if any man be taken and convicted for taking our venison, he shall make a grievous fine, if he has anything. and if he has nothing to lose, he shall be imprisoned for a year and a day. and after that, if he can find sufficient sureties, he shall be delivered, and, if not, he shall abjure the realm of england." the forest charter provided that: every freeman may allow his pigs to eat in his own wood in the king's forest. he may also drive his pigs through the king's forest and tarry one night within the forest without losing any of his pigs. but people having greyhounds must keep them out of the forest so they don't maim the deer. the forest charter also allowed magnates traveling through the king's forest on the king's command to come to him, to kill one or two deer as long as it was in view of the forester if he was present, or while having a horn blown, so it did not seem to be theft. after a period of civil war, the following statutes were enacted: "all persons, as well of high as of low estate, shall receive justice in the king's court; and none shall take any such revenge or distress by his own authority, without award of our court, although he is damaged or injured, whereby he would have amends of his neighbor either higher or lower." the penalty is a fine according to the trespass. a fraudulent conveyance to a minor or lease for a term of years made to defraud a lord of a wardship shall be void. a lord who maliciously and wrongfully alleges this to a court shall pay damages and costs. if a lord will not render unto an heir his land when he comes of age or takes possession away from an heir of age or removes anything from the land, he shall pay damages. (the king retained the right to take possession of an heir's land for a year or, in lieu of this, to take one year's profit from the land in addition to the relief.) kinsmen of a minor heir who have custody of his land held in socage shall make no waste, sale, nor destruction of the inheritance and shall answer to the heir when he comes of age for the issues of the land, except for the reasonable costs of these guardians. no lord may distrain any of his tenants. no one may drive animals taken by distraint out of the county where they have been taken. "farmers during their terms, shall not make waste, sale, nor exile of house, woods, and men, nor of any thing else belonging to the tenements which they have to farm". church law required that planned marriages be publicly announced [banns]by the priest so that any impediment could be made known. if a marriage was clandestine or both parties knew of an impediment, or it was within the prohibited degrees of consanguinity, the children would be illegitimate. according to church rules, a man could bequeath his personal property subject to certain family rights. these were that if only the wife survived, she received half the property. similarly, if children survived, but no wife, they received half the property. when the wife and children survived, each party received one third. the church hoped that the remaining fraction would go to the church as a reward for praying for the deceased's soul. it taught that dying without a will was sinful. adults were to confess their sins at least yearly to their parish priest, which confession would be confidential. ecclesiastical offenses included fornication, adultery, incest, and bigamy, for which the punishment was usually whipping or a money payment. heresy and sorcery were so infrequent that there was no machinery aptly suited for their suppression. henry de bracton, a royal justice and the last great ecclesiastical attorney, wrote an unfinished treatise: a tract on the laws and customs of england, systematizing and organizing the law of the court rolls with definitions and general concepts and describing court practice and procedure. it was influenced by his knowledge of roman legal concepts, such as res judicata, and by his own opinions, such as that the law should go from precedent to precedent. he also argued that the will and intent to injure was the essence of murder, so that neither an infant nor a madman should be held liable for such and that degrees of punishment should vary with the level of moral guilt in a killing. he thought the deodand to be unreasonable. bracton defines the requirements of a valid and effective gift, still applicable in 2000, as: "it must be complete and absolute, free and uncoerced, extorted neither by fear nor through force. let money or service play no part, lest it fall into the category of purchase and sale, for if money is involved there will then be a sale, and if service, the remuneration for it. if a gift is to be valid the donor must be of full age, for if a minor makes a gift it will be ineffective since (if he so wishes) it shall be returned to him in its entirety when he reaches full age. also let the donor hold in his own name and not another's, otherwise his gift may be revoked. and let him, at the least, be of sound mind and good memory, though an invalid, ill and on his death bed, for a gift make under such conditions will be good if all the other [requirements] of a valid gift are met. for no one, provided he is of good memory, ought to be kept from the administration or disposition of his own property when affected by infirmity, since it is only then that he must make provision for his family, his household and relations, given stipends and settle his bequests; otherwise such persons might suffer damage without fault. but since charters are sometimes fraudulently drawn and gifts falsely taken to be made when they are not, recourse must therefore be had to the country and the neighborhood so that the truth may be declared." in bracton's view, a villein could buy his own freedom and the child of a mixed marriage was free unless he was born in the tenement of his villein parent. judicial procedure the royal court spawned several courts with different specialties and became more like departments of state than offices of the king's household. the justices were career civil servants knowledgeable in the civil and canon law. the court of the king's bench (a marble slab in westminster upon which the throne was placed) traveled with the king and primarily heard criminal cases and pleas of the crown. any use of force, however trivial, was interpreted as breach of the royal peace and could be brought before the king's bench. its records were the coram rege rolls. the court of common pleas primarily heard civil cases brought by one subject against another. pursuant to the magna carta, it sat only at one place, the great hall in westminster. it had concurrent jurisdiction with the king's bench over trespass cases. its records were the de banco rolls. the court of the exchequer with its subsidiary department of the treasury was in almost permanent session at westminster, primarily collecting the crown's revenue and enforcing the crown's rights. a department of the exchequer watched over the affairs of the jews. there was no sharp line demarking the jurisdictions of these courts. no pleas could be brought against the king; rather a petition was addressed to him, which he would answer by an executive writ. appeals from these courts could be made to the king and/or his small council. in 1234, the justiciar as the principal royal executive officer and chief presiding officer over the royal court ended. in 1268, a chief justiciar was appointed to hold pleas before the king. about the same time the presiding justice of the court of common pleas also came to be styled chief justice. henceforth, a justiciar was a royal officer who dealt only with judicial work. the justiciars were no longer statesmen or politicians, but rather men learned in the law. membership in or attendance at the great council or parliament no longer rested upon feudal tenure, but upon a writ of summons which was, to a degree, dependent on the royal will. crown pleas included issues of the king's property, fines due to him, murder (a body found with no witnesses to a killing), homicide (a killing for which there were witnesses), rape, wounding, mayhem, consorting, larceny, robbery, burglary, arson, poaching, unjust imprisonment, selling cloth by nonstandard widths, selling wine by nonstandard weights. crown causes were pled by the king's serjeants or servants at law, who were not clerics. apprentices at law learned pleading from them. between the proprietary action and the possessory assizes there is growing use in the king's courts of writs of entry, by which a tenant may be ordered to give up land, e.g. by a recent flaw in a tenant's title, for a term which has expired, by a widow for her late husband's land, or by an heir who has become of full age from his guardian. for instance: " ...command tertius that ... he render to claimant, who is of full age, as it is said, ten acres ...which he claims to be his right and inheritance and into which the said tertius has no entry save by secundus, to whom primus demised [gaged] them, who had only the wardship thereof while the aforesaid claimant was under age, as he says...". but most litigation about land is still through the writ of right for proprietary issues and the assizes of novel disseisin and mort d'ancestor for possessory issues. actions for debt; covenant; and account, e.g by a lord to his bailiff and receiver of his money, were actions in the king's court. royal itinerant justices, who were members of the royal courts, traveled on eyre on regular circuits to the counties every seven years. they had an administrative function as well as a judicial function. they gave interrogatories to local assizes of twelve men to determine what had happened there since the last eyre. information was aquired on royal proprietary rights, escheats, wardships, treasury matters, and official misdoings of royal officers, sheriffs, coroners, and bailiffs, which could be dealt with in an administrative way. (these administrative duties ceased in the first half of the 1300s.) all boroughs had to send twelve burgesses who were to indict any burgesses suspected of breaking the royal law. every crime, every invasion of royal rights, and every neglect of police duties was to be presented and tried. suspects were held in gaol until their cases could be heard and gaol breaks were common. punishment after trial was prison for serious crimes, expulsion from the realm for less serious crimes, and pledges for good behavior for lesser crimes. fines and amercements both for individual criminal offenses and local communities' faults brought revenue into the exchequer as profits of justice. the king could increase fines and amercements or pardon a person found guilty. the visitation of these justices was anticipated with trepidation. in 1237, the residents of cornwall hid in the woods rather than face the itinerant justices. (the court of the justices in eyre lasted until 1971.) royal coroners held inquests on all sudden deaths to determine whether they were accidental or not. if not, royal justices held trial. they also had duties in treasure trove and shipwreck cases. justices of assize, justices of the peace, and itinerant justices operated at the county level. the traditional county courts had lost much jurisdiction to the royal courts and were now limited to personal actions in causes involving usually no more than 40s. the great majority of cases had to do with 1) writ of right for recovery of land, 2) the possessory assizes for the protection of possession, 3) debt for recovery of money owed, such as rent 4) detinue for detention of a chattel, such as beasts and 5) convenant for breach of a contract, later to be limited to contracts under seal. there were also pleas of trespass and claims of fugitive villeins and their goods, nuisances, and encroachments. the action of trespass had broken free of the criminal law, which had been divided into the two categories of felony and trespass. but then the field of tort began to separate itself from that of crime and the more serious trespasses remained criminal while the less serious attached themselves to the civil sphere. the sheriff still constitutes and conducts the court, assisted by elected coroners. the earl of the county had little to do with its court except to take one-third of its profits of justice.the county court met every three or four weeks, usually in the sheriff's castle located in the chief borough of the county, but some met in the open air. it is attended by suitors, certain freeholders of the county who are bound to attend it, that is, to do suit to it. they are the judges of the court. the hundred court decided cases of theft, viewing of boundaries of land, claims for tenurial services, claims for homage, relief, and for wardship; enfeoffments made, battery and brawls not amounting to felony, wounding and maiming of beasts, collection of debts, trespass, detinue, and covenant, which now requires a sealed writing; defamation, and inquiries and presentments arising from the assizes of bread and ale and measures. the action of debt was used for five main purposes: 1) money lent, 2) the price of goods sold, 3) arrears of rent due upon a lease for years, 4) money due from a surety, and 5) a debt confessed by a sealed document. a paid bailiff had responsibility for the hundred court, which met every three weeks. freeholders of these hundreds owe suit to it; these suitors are the judges. twice a year the sheriff visited each hundred in the county to hold a turn, a court for small offenses, such as encroachment of public land, brewing and baking contrary to government regulations, and use of dishonest weights and measures. everyone who held freehold land in the hundred except the greater magnates had to attend or be fined for absence. the sheriff annually viewed frankpledge, in which every layman without land that could be forfeited for felony, including villeins, were checked for being in a tithing, a group of neighbors responsible for each other's good conduct. this applied to every boy who had reached the age of twelve. he had to swear on the bible "i will be a lawful man and bear loyalty to our lord the king and his heirs, and i will be justiciable to my chief tithing man, so help me god and the saints." each tithing man paid a penny to the sheriff. the sheriff was the judge in his turn. coordinate with the sheriff's turn was a leet court, which had private jurisdiction over the same small offences. if a county or a hundred court gave a false judgment, it had to pay a fine. manorial courts were those in which a lord had for his tenants. it was presided over by the lord, or his steward, who decided the outcomes of cases, with or without the villeins attending it, based on the customs of the manor. it had a civil jurisdiction, and dealt typically with land issues and minor offenses, such as, actions when the amount at stake is less than 40 s., of debt, detinue, trespass and covenant. 40s. was the equivalent of around 13 oxen or 80 sheep. usually, the lord's court had a single manor with a single vill. the cities and boroughs, having a degree of organization and independence, had municipal courts whose jurisdiction was determined by privileges.given by charter from the king or by prescription of ancient origin. court was held by the sheriff, and after a time by its mayor, at the borough's weekly meeting of its burgesses. the burgesses would take the profits of the court and the tolls and house-rents that had been paid to the sheriff. still in existence is the old self-help law of hamsocne, the thief hand-habbende, the thief back-berend, the old summary procedure where the thief is caught in the act, aethelstan's laws, and edward the confessor's laws. under the name of "actio furti" [appeal of larceny] is the old process by which a thief can be pursued and goods vindicated. as before and for centuries later, deodands were forfeited to the king to appease god's wrath. these chattel which caused the death of a person were usually oxen, carts, cart teams, horses, boats, cauldrons, or millwheels. then they were forfeited to the community, which paid the king their worth. sometimes the justices named the charitable purpose for which the deodand was to be spent, such as the price of a boat to go to the repair of a bridge. five cases from a county court are: 1) "john croc was drowned from his horse and cart in the water of bickney. judgment: misadventure. the price of the horse and cart is 4s.6d. deodand." 2) "willam ruffus was crushed to death by a certain trunk. the price of the trunk is 4d., for which the sheriff is to answer. 4d. deodand." 3) "william le hauck killed edric le poter and fled, so he is -to be exacted and outlawed. he was in the tithing of reynold horloc in clandon of the abbot of chertsey (west clandon), so it is in mercy. his chattels were 4 s., for which the bailiff of the abbot of chertsey is to answer." 4) "richard de bregsells, accused of larceny, comes and denies the whole and puts himself on the country for good or ill. the twelve jurors and four vills say that he is not guilty, -so he is quit." 5) william le wimpler and william vintner sold wine contrary to the statute, so they are in mercy. other cases dealt with issues of entry, e.g. whether land was conveyed or just rented; issues of whether a man was free, for which his lineage was examined; issues of to which lord a villein belonged; issues of nuisance such as making or destroying a bank, ditch, or hedge; diverting a watercourse or damming it to make a pool; obstructing a road, and issues of what grazing rights were conveyed in pasture land, waste, woods, or arable fields between harvest and sowing. grazing right disputes usually arose from the ambiguous language in the grant of land "with appurtenances". courts awarded specific relief as well as money damages. if a landlord broke his covenant to lease land for a term of years, the court restored possession to the lessee. if a lord did not perform the services due to his superior lord, the court ordered him to perform the services. the courts also ordered repair by a lessee. debts of country knights and freeholders were heard in the local courts; debts of merchants and burgesses were heard in the courts of the fairs and boroughs; debts due under wills and testaments were heard in the ecclesiastical courts. the ecclesiastical courts deemed marriage to legitimize bastard children whose parents married, so they inherited personal property and money of their parents. proof was by compurgation. church law required excommunication to be in writing with the reasons therefore, and a copy given to the excommunicant. a church judge was required to employ a notary or two men to write down all acts of the judge and to give a copy to the parties to protect against unjust judges. no cleric was allowed to pronounce or execute a sentence of death or to take part in judicial tests or ordeals. anyone knowingly accepting a stolen article was required to restore it to its owner. heretics were to be excommunicated. trial by combat is still available, although it is extremely rare for it to take place. in the appeal of felony, when offered combat, a defendant could choose between combat and recourse to a verdict of his neighbors. the manor court imposed penalties on those who did not perform their services to the manor and the lord wrote down the customs of the manor for future use in other courts. by statute, no fines could be taken of any man for fair pleading in the circuit of justiciars, county, hundred, or manor courts. various statutes relaxed the requirements for attendance at court of those who were not involved in a case as long as there were enough to make the inquests fully. and "every freeman who owes suit to the county, tything, hundred, and wapentake, or to the court of his lord, may freely make his attorney attend for him." all above the rank of knight were exempted from attendance on the sheriff's turn, unless specifically summoned. prelates and barons were generally excepted from the county courts by the charters of their estates. charters of boroughs often excepted their representatives at the county court when there were no justices. some barons and knights paid the sheriff to be excused. the king often relieved the simple knights by special license. there was frequently a problem of not having enough knights to hold the assizes. henry iii excused the attendance at hundred courts of all but those who were bound to special service, or who were concerned in suits. trespass has become a writ of course in the common law. it still involves violence, but its element of breach of the peace extends to those breaches which do not amount to felony. it can include assault and battery, physical force to land, and physical force to chattels, e.g. assaulting and beating the plaintiff, breaking into his close, or carrying off his goods. one found guilty is fined and imprisoned. as in criminal matters, if a defendant does not appear at court, his body can be seized and imprisoned, and if he cannot be found, he may be outlawed. trespass to goods results in damages, rather than the return of the goods. various cases from the manors of the abbey of bec in 1248-1249 are: 1. ragenilda of bec gives 2s. for having married without licence. pledge, william of pinner. the same ragenilda demands against roger loft and juliana his wife a certain messuage which belonged to robert le beck, and a jury of -twelve lawful men is granted her in consideration of the said fine, and if she recovers seisin she will give in all 5s. and twelve jurors are elected, to wit, john of hulle, william maureward, robert hale walter but, walter sigar, william brihtwin, richard horseman, richard leofred, william john's son, hugh cross, richard pontfret and robert croyser, john bisuthe and gilbert bisuthe who are sworn. and they say that the said ragenilda has the greater right. therefore let her have seisin. 2. richard guest gives 12d. and if he recovers will give 2s. to have a jury of twelve lawful men as to whether he has the greater right in a certain headland at eastcot which ragenilda widow of william andrews holds, or the said ragenilda. pledges for the fine, john brook and richard of pinner. and the said ragenilda comes and says that she has no power to bring that land into judgment because she has no right in it save by reason of the wardship of the son and heir of her husband, who is under age. and richard is not able to deny this. therefore let him await [the heir's] full age. 3. walter hulle gives 13s.4d. for licence to dwell on the land of the prior of harmondsworth so long as he shall live and as a condition finds pledges, to wit, william slipper, john bisuthe, gilbert bisuthe, hugh tree, william john's son, john hulle, who undertake that the said walter shall do to the lord all the services and customs which he would do if he dwelt on the lord's land and that his heriot shall be secured to the lord in case he dies there [i.e. at harmondsworth]. 4. geoffrey sweyn demands the moiety of one virgate of land which john crisp and alina hele hold, and he gives 2s. to have a jury, and if he recovers will give 20s. and the said jurors come and say upon their oath that the said geoffrey has no right in the said land. therefore let the said tenants go thence without day and let the said geoffrey pay 2s. pledges, hugh bussel and godfrey francis. 5. juliana saer's daughter demands as her right the moiety of one messuage with a croft, which messuage william snell and goda his wife, sister of the said juliana hold. and they have made accord by leave [of the court] to the effect that the said william and goda give to the said juliana a barn and the curtilage nearest the green and two selions [a ridge of land between two furrows] in the western part of the said croft [a small enclosed field]. and the said william put himself in mercy. fine, 12d. 6. hugh of stanbridge complains of gilbert vicar's son and william of stanbridge that the wife of the said gilbert who is of [gilbert's] mainpast and the said william unjustly etc. beat and unlawfully struck him and dragged him by his hair out of his own proper house, to his damage 40s. and to his dishonor 20s., and [of this] he produces suit. and gilbert and william come and defend all of it fully. therefore let each of them go to his law six-handed. afterwards they make accord to this effect that in case the said hugh shall hereafter in any manner offend against [gilbert and william] and thereof shall be convicted he will give the lord 6s.8d. by way of penalty and will make amends to [gilbert and william] according to the judgment of six lawful men, and the others on their part will do the like by him. and hugh put himself in mercy. fine, 3s. pledges, john tailor and walter brother. 7. breakers of the assize [of beer:] william idle (fined 6d.), maud carter's widow (6d.), walter carter. 8. john witriche in mercy for carrying off thorns. fine, 6d. 9. robert dochi in mercy (fine, 2d.) for divers trespasses. pledges, gilbert priest's son, ralph winbold and walter green. 10. ailwin crisp in mercy for his cow caught in the lord's pasture when ward had been made. fine, 12d. 11. john bernard in mercy for his beasts caught by night in the lord's meadow. fine, 2s. 12. richard love gives 12d. to have a jury of twelve touching a rod of land which robert of brockhole and juliana his wife hold. this action is respited to the next court [when the jurors are to come] without further delay. afterwards the jurors come and say upon their oath that the said richard has the greater right in the said land. therefore let him have seisin. 13. william blackbeard in mercy for not coming with his law as he was bound to do. pledges, geoffrey of wick and geoffrey payn. fine, 6d. 14. it was presented that stephen shepherd by night struck his sister with a knife and grievously wounded her. therefore let him be committed to prison. afterwards he made -fine with 2s. pledge, geoffrey of wick. 15. it was presented that robert carter's son by night invaded the house of peter burgess and in felony threw stones at his door so that the said peter raised the hue. therefore let the said robert be committed to prison. afterwards he made fine with 2s. 16. nicholas drye, henry le notte (fine, 12d.) and thomas hogue (fine, 12d.) were convicted for that they by night invaded the house of sir thomas the chaplain and forcibly expelled thence a man and woman who had been taken in there as guests. therefore they are in mercy. pledges of the said thomas, richard of lortemere and jordan of paris. pledges of the said henry, richard pen...and richard butry. 17. adam moses gives half a sextary of wine to have an inquest as to whether henry ayulf accused him of the crime of larceny and used opprobrious and contumelious words of him. afterwards they made accord and henry finds security for an amercement. fine, 12d. 18. isabella sywards in mercy for having sold to richard bodenham land that she could not warrant him. 19. all the ploughmen of great ogbourne are convicted by the oath of twelve men....because by reason of their default [the land] of the lord was ill ploughed whereby the lord is damaged to the amount of 9s.... and walter reaper is in mercy for concealing [i.e. not giving information as to] the said bad ploughing. afterwards he made fine with the lord with 1 mark. 20. from ralph joce 6s.8d. for his son, because he [the son] unlawfully carried off grain from the lord's court. pledge,geoffrey joce. 21. from henry pink 12d. for a trespass by waylaying. 22. from eve corner 6d. for a trespass of her pigs. 23. from ralph scales 6d. for timber carried off. 24. from william cooper 12d. for ploughing his own land with the lord's plough without licence. 25. from hugh newman 12d. for trespass in the wood. 26. from richard penant 12d. for the same. 27. from helen widow of little ogbourne 6d. for the same. 28. from nicholas siward 6d. for a false complaint against william pafey. 29. from william pafey 12d. for fighting with the said nicholas. 30. from the widow of ralph shepherd 6d. for a trespass in pencombe. 31. richard blund gives a half-mark and if he recovers will -give two marks and a half to have a jury of the whole court, to inquire whether he has the greater right in a virgate of land which hugh frith holds in wardship with cristiana daughter of simon white, or the said cristiana. pledges for the fine, richard dene, william hulle, john of senholt, hugh smith, and william ketelburn. and the whole court say upon their oath that the said richard has greater right in the said land than anyone else. therefore let him recover his seisin. 32 -....miller gives 2d. [the latin translates as 4s.] for a trespass against the assize of beer and because the lord's grain has been ill kept at the mill. pledges, john orped and joce serjeant. 33. noah gives 2s. in the same way for an inquest as to one acre. afterwards they submit themselves to arbitrators, who adjudge that the said robert shall pay 3s. to the said roger and 6s. to the said gilbert and 7s. to the said noah, and that he will do so [robert] finds pledges. 34. ralph bar in mercy for having beaten one of the lord's men. pledges, herbert rede and ralph brunild. 35. for the common fine of the township, a half-mark. 36. john boneffiant found pledges, to wit, william smith and william of bledlow, that he will not eloign himself from the lord's land and that he will be prompt to obey the lord's summons. chapter 8 the times: 1272-1348 king edward i was respected by the people for his good government, practical wisdom, and genuine concern for justice for everyone. he loved his people and wanted them to love him. he came to the throne with twenty years experience governing lesser lands on the continent which were given to him by his father henry iii. he spoke latin, english, and french. he gained a reputation as a lawgiver and as a peacemaker in disputes on the continent. his reputation was so high and agreement on him as the next king so strong that england was peaceful in the almost two years that it took him to arrive there from continental business. he was truthful, law-abiding, and kept his word. he had close and solid family relationships, especially with his father and with his wife eleanor, to whom he was faithful. he was loyal to his close circle of good friends. he valued honor and adhered reasonably well to the terms of the treaties he made. he was generous in carrying out the royal custom of subsidizing the feeding of paupers. he visited the sick. he was frugal and dressed in plain, ordinary clothes rather than extravagant or ostentatious ones. he disliked ceremony and display. at his accession, there was a firm foundation of a national law administered by a centralized judicial system, a centralized executive, and an organized system of local government in close touch with both the judicial and the executive system. to gain knowledge of his nation, he sent royal commissioners into every county to ask about any encroachments on the king's rights and about misdeeds by any of the king's officials: sheriffs, bailiffs, or coroners. the results were compiled as the "hundred rolls". they were the basis of reforms which improved justice at the local as well as the national level. they also rationalized the array of jurisdictions that had grown up with feudal government. statutes were passed by a parliament of two houses, that of peers (lords) and that of an elected [rather than appointed] commons, and the final form of the constitution was fixed. a wife was expected to obey her husband. a husband was deemed the guardian of his wife. if he starved or mistreated her, he was subject to punishment by the church court, even excommunication if necessary. the king's court punished a husband who killed or maimed his wife. the common law as to husband and wife took a final shape with six basic principles: 1. a husband, but not the wife, could alienate his wife's land during the marriage, but not to take effect after his death, e.g. by will. 2. a widow was entitled for her life a dower of one-third of any land by her husband. 3. the husband can take possession of the wife's chattels and can alienate them during his life without her permission. he can sue for all debts due her without her permission. if he survives her, he is entitled to be administrator of her estate. she can make no will without his permission. 4. the husband can give away all his chattels, except for her necessary clothes and her jewelry and paraphernalia. 5. the husband is liable for debts incurred or wrongs committed by his wife even before their marriage. 6. a wife cannot contract on her own behalf, but may purchase on credit certain necessaries and household goods. the church elaborated on these principles with a doctrine for women-covert, i.e. women under the protection or coverture of a husband, and not living separately such as when a man went to sea or to war. she had a right to the necessities of life. her jewelry, but not her apparel, could go to his creditors if his assets didn't cover his debts. the husband also had the right to the rents and profits from his wife's real estate, but not the real estate itself, unless by the birth of a child he became tenant for life by courtesy. only the father, but not the mother had authority over their children. a father had a right to his child's services, and could sue a third party for abducting, enticing away, or injuring the child, just as he could for his servants. a husband was answerable for a wife's torts and trespasses, except for battery. for this reason, he was allowed to chastise her, restrain her liberty for gross misbehavior, and punish her by beating for some misdemeanors. if she was a merchant when she married, she could still sell her goods in the open market. there could be no divorce, but only separation. if separated, she had a right to alimony from him to maintain herself. there were many conveyances of land to husband and wife and their heirs. this created a tenancy by the entirety. this land could not be alienated by only one spouse without the other. on the death of one spouse, the surviving spouse became the sole tenant of the whole. wardships of children and widows were sought because they were very profitable. a guardian could get one tenth of the income of the property during the wardship and a substantial marriage amount when the ward married. parents often made contracts to marry for their young children. this avoided a forced marriage by a ward should the parents die. most earldoms and many baronages came into the royal house by escheat or marriage. the royal house employed many people. the barons developed a class consciousness of aristocracy and became leaders of society. many men, no matter of whom they held land, sought knighthood. the king granted knighthood by placing his sword on the head of able-bodied and moral candidates who swore an oath of loyalty to the king and to defend "all ladies, gentlewomen, widows and orphans" and to "shun no adventure of your person in any war wherein you should happen to be". a code of knightly chivalry became recognized, such as telling the truth and setting wrongs right. about half of the knights were literate. in 1278, the king issued a writ ordering all freeholders who held land of the value of at least 400s. to receive knighthood at the king's hands. at the royal house and other great houses gentlemanly jousting competitions, with well-refined and specific rules, took the place of violent tournaments with general rules. edward forbade tournaments at which there was danger of a "melee". at these knights competed for the affection of ladies by jousting with each other while the ladies watched. courtly romances were common. if a man convinced a lady to marry him, the marriage ceremony took place in church, with feasting and dancing afterwards. romantic stories were at the height of their popularity. a usual theme was the lonely quest of a knight engaged in adventures which would impress his lady. riddles include: 1. i will make you a cross, and a thing will not touch you, and you will not be able to leave the house without breaking that cross. answer: stand before a post in your house, with your arms extended. 2. what you do not know, and i do not know, and no one can know after i have told you. answer: i will take a straw from the floor of the room, measure its inches, tell you the length, and break the straw. 3. a pear tree bears all the fruit a pear tree can bear and did not bear pears. answer: it bore only one pear. the dress of the higher classes was very changeable and subject to fashion as well as function. ladies no longer braided their hair in long tails, but rolled it up in a net under a veil, often topped with an elaborate and fanciful headdress. they wore nonfunctional long trains on their tunics and dainty shoes. men wore a long gown, sometimes clasped around the waist. overtunics were often lined or trimmed with native fur such as squirrel. people often wore solid red, blue, or green clothes. only monks and friars wore brown. the introduction of buttons and buttonholes to replace pins and laces made clothing warmer, and it could be made tighter. after edward i established the standard inch as three continuous dried barleycorns, shoes came in standard sizes and with a right one different from a left one. the spinning wheel came into existence to replace the handheld spindle. now one hand could be used to form the thread while the other hand turned a large upright wheel that caused the thread to wind around the spindle, which did not have to be held by hand. this resulted in an uninterrupted spinning motion which was not interrupted by alternately forming the thread and winding it on the spindle. in the 1300s, there were extremes of fashion in men's and women's clothing including tight garments, pendant sleeves down to the ground, coats so short they didn't reach the hips or so long they reached the heels, hoods so small they couldn't cover the head, and shoes with long curved peaks like claws at the toes. both men and women wore belts low on the hips. the skirt of a lady's tunic was fuller and the bodice more closely fitted than before. her hair was usually elaborately done up, e.g. with long curls or curled braids on either side of the face. a jeweled circlet was often worn around her head. ladies wore on their arms or belts, cloth handbags, which usually contained toiletries, such as combs made of ivory, horn, bone, or wood, and perhaps a little book of devotions. a man wore a knife and a bag on his belt. some women painted their faces and/or colored their hair. there were handheld glass mirrors. some people kept dogs purely as pets. there was a great development of heraldic splendor with for instance, crests, coat-armor, badges, pennons [long, triangular flag], and helmets. they descended through families. not only was it a mark of service to wear the badge of a lord, but lords wore each other's badges by way of compliment. lords surrounded themselves with people of the next lower rank, usually from nearby families, and had large households. for instance, the king had a circle of noblemen and ladies about him. a peer or great prelate had a household of about 100-200 people, among which were his inner circle, companions, administrators, secretaries, bodyguards and armed escort, chaplain, singing priests and choirboys, and servants. all officers of the household were gentlemen. the secretary was usually a clerk, who was literate because he had taken minor clerical orders. since the feudal obligation of the tenants was disappearing, a lord sometimes hired retainers to supplement his escort of fighting men. they proudly wore his livery of cloth or hat, which was in the nature of a uniform or badge of service. a nobleman and his lady had a circle of knights and gentlemen and their ladies. a knight had a circle of gentlemen and their ladies. the great barons lived in houses built within the walls of their castles. lesser barons lived in semi-fortified manors, many of which had been licensed to be embattled or crenelated. their halls were two stories high, and usually built on the first rather than on the second floor. windows came down almost to the floor. the hall had a raised floor at one end where the lord and lady and a few others sat at a high table. the hearth was in the middle of the room or on a wall. sometimes a cat was used to open and shut the louvers of the smoke outlet in the roof. the lord's bedroom was next to the hall on the second floor and could have windows into the hall and a spiral staircase connecting the two rooms. there was a chapel, in which the lord attended mass every morning. the many knights usually lived in unfortified houses with two rooms. in the great houses, there were more wall hangings, and ornaments for the tables. the tables were lit with candles or torches made of wax. plates were gold and silver. the lord, his lady, and their family and guests sat at the head table, which was raised on a dais. on this high table was a large and elaborate salt cellar. one's place in relationship to the salt cellar indicated one's status: above or below the salt. also, those of higher status at the table ate a superior bread. the almoner [alms giver] said grace. gentlemen poured the lord's drink [cupbearer], served his meat [carver], and supervised the serving of the food [sewer]. a yeoman ewery washed the hands of the lord and his guests and supplied the napkins, ewers [pitchers], and basins. a yeoman cellarer or butler served the wine and beer. the yeoman of the pantry served the bread, salt, and cutlery. the steward presided over the table of household officers of gentle birth. the marshall of the hall, clerk of the kitchen, or other yeomen officers supervised other tables. salt and spices were available at all tables. most people ate with their fingers, although there were knives and some spoons. drinking vessels were usually metal, horn, or wood. a marshall and ushers kept order. minstrels played musical instruments or recited histories of noble deeds or amusing anecdotes. reading aloud was a favorite pastime. the almoner collected the leftovers to distribute to the poor. in lesser houses people ate off trenchers [a four day old slab of coarse bread or a piece of wood with the middle scooped out like a bowl], or plates of wood or pewter [made from tin, copper, and lead]. they often shared plates and drinking vessels at the table. queen eleanor, a cultivated, intelligent, and educated lady from the continent, fostered culture and rewarded individual literary efforts, such as translations from latin, with grants of her own money. she patronized oxford and cambridge universities and left bequests to poor scholars there. she herself had read aristotle and commentaries thereon, and she especially patronized literature which would give cross-cultural perspectives on subjects. she was kind and thoughtful towards those about her and was also sympathetic to the afflicted and generous to the poor. she shared edward's career to a remarkable extent, even accompanying him on a crusade. she had an intimate knowledge of the people in edward's official circle and relied on the advice of two of them in managing her lands. she mediated disputes between earls and other nobility, as well as softened her husband's temper towards people. edward granted her many wardships and marriages and she arranged marriages with political advantages. she dealt with envoys coming to the court. her intellectual vitality and organized mentality allowed her to deal with arising situations well. edward held her in great esteem. she introduced to england the merino sheep, which, when bred with the english sheep, gave them a better quality of wool. she and edward often played games of chess and backgammon. farm efficiency was increased by the use of windmills in the fields to pump water and by allowing villeins their freedom and hiring them as laborers only when needed. customary service was virtually extinct. a man could earn 5d. for reaping, binding, and shocking into a pile, an acre of wheat. a strong man with a wife to do the binding could do this in a long harvest day. harvests were usually plentiful, with the exception of two periods of famine over the country due to weather conditions. then the price of wheat went way up and drove up the prices of all other goods correspondingly. the story of outlaw robin hood, who made a living by robbing, was passed around. this robin hood did not give to the poor. but generally, there was enough grain to store so that the population was no longer periodically devastated by famine. the population grew and all arable land in the nation came under the plough. the acre was standardized. about 1300, the price of an ox was 9s., a heifer or cow 7s., a hide 2s.6d., a cart horse 2 or 3 pounds. farm women went to nearby towns to sell eggs and dairy products, usually to town women. although manors needed the ploughmen, the carters and drivers, the herdsmen, and the dairymaid on a full-time basis, other tenants spent increasing time in crafts and became village carpenters, smiths, weavers or millers' assistants. trade and the towns grew. smiths used coal in their furnaces. money rents often replaced service due to a lord, such as fish silver, malt silver, or barley silver. the lord's rights are being limited to the rights declared on the extents [records showing service due from each tenant] and the rolls of the manor. sometimes land is granted to strangers because none of the kindred of the deceased will take it. often a manor court limited a fee in land to certain issue instead of being inheritable by all heirs. surveyors' poles marked boundaries declared by court in boundary disputes. this resulted in survey maps showing villages and cow pastures. the revival of trade and the appearance of a money economy was undermining the long-established relationship between the lord of the manor and his villeins. as a result, money payments were supplementing or replacing payments in service and produce as in martham, where thomas knight held twelve acres in villeinage, paid 16d. for it and 14d. in special aids. "he shall do sixteen working days in august and for every day he shall have one repast viz. bread and fish. he shall hoe ten days without the lord's food price of a day 1/2 d. he shall cart to norwich six cartings or shall give 9d., and he shall have for every carting one leaf and one lagena or gallon of ale. also for ditching 1d. he shall make malt 3 1/2 seams of barley or shall give 6d. also he shall flail for twelve days or give 12d. he shall plough if he has his own plough, and for every ploughing he shall have three loaves and nine herrings ... for carting manure he shall give 2." another example is this manor's holdings, when 3d. would buy food for a day: "extent of the manor of bernehorne, made on wednesday following the feast of st. gregory the pope, in the thirty-fifth year of the reign of king edward, in the presence of brother thomas, keeper of marley, john de la more, and adam de thruhlegh, clerks, on the oath of william de gocecoumbe, walter le parker, richard le knyst, richard the son of the latter, andrew of estone, stephen morsprich, thomas brembel, william of swynham, john pollard, roger le glide, john syward, and john de lillingewist, who say that there are all the following holdings:... john pollard holds a half acre in aldithewisse and owes 18d. at the four terms, and owes for it relief and heriot. john suthinton holds a house and 40 acres of land and owes 3s.6d. at easter and michaelmas. william of swynham holds one acre of meadow in the thicket of swynham and owes 1d. at the feast of michaelmas. ralph of leybourne holds a cottage and one acre of land in pinden and owes 3s. at easter and michaelmas, and attendance at the court in the manor every three weeks, also relief and heriot. richard knyst of swynham holds two acres and a half of land and owes yearly 4s. william of knelle holds two acres of land in aldithewisse and owes yearly 4s. roger le glede holds a cottage and three roods of land and owes 2s.6d. easter and michaelmas. alexander hamound holds a little piece of land near aldewisse and owes one goose of the value of 2d. the sum of the whole rent of the free tenants, with the value of the goose, is 18s.9d. they say, moreover, that john of cayworth holds a house and 30 acres of land, and owes yearly 2s. at easter and michaelmas; and he owes a cock and two hens at christmas of the value of 4d. and he ought to harrow for two days at the lenten sowing with one man and his own horse and his own harrow, the value of the work being 4d.; and he is to receive from the lord on each day three meals, of the value of 5d., and then the lord will be at a loss of 1d. thus his harrowing is of no value to the service of the lord. and he ought to carry the manure of the lord for two days with one cart, with his own two oxen, the value of the work being 8d.; and he is to receive from the lord each day three meals at the value as above. and thus the service is worth 3d. clear. and he shall find one man for two days, for mowing the meadow of the lord, who can mow, by estimation, one acre and a half, the value of the mowing of an acre being 6d.: the sum is therefore 9d. and he is to receive each day three meals of the value given above. and thus that mowing is worth 4d. clear. and he ought to gather and carry that same hay which he has cut, the price of the work being 3d. and he shall have from the lord two meals for one man, of the value of 1 1/2 d. thus the work will be worth 1 1/2 d. clear. and he ought to carry the hay of the lord for one day with a cart and three animals of his own, the price of the work being 6d. and he shall have from the lord three meals of the value of 2 1/2 d. and thus the work is worth 3 1/2 d. clear. and he ought to carry in autumn beans or oats for two days with a cart and three animals of his own, the value of the work being 12d. and he shall receive from the lord each day three meals of the value given above. and thus the work is worth 7d. clear. and he ought to carry wood from the woods of the lord as far as the manor, for two days in summer, with a cart and three animals of his own, the value of the work being 9d. and he shall receive from the lord each day three meals of the price given above. and thus the work is worth 4d. clear. and he ought to find one man for two days to cut heath, the value of the work being 4d., and he shall have three meals each day of the value given above: and thus the lord will lose, if he receives the service, 3d. thus that mowing is worth nothing to the service of the lord. and he ought to carry the heath which he has cut, the value of the work being 5d. and he shall receive from the lord three meals at the price of 2 1/2 d. and thus the work will be worth 2 1/2 d. clear. and he ought to carry to battle, twice in the summer season, each time half a load of grain, the value of the service being 4d. and he shall receive in the manor each time one meal of the value of 2d. and thus the work is worth 2d. clear. the totals of the rents, with the value of the hens, is 2s.4d. the total of the value of the works is 2s.3 1/2 d., being owed from the said john yearly. william of cayworth holds a house and 30 acres of land and owes at easter and michaelmas 2s. rent. and he shall do all customs just as the aforesaid john of cayworth. william atte grene holds a house and 30 acres of land and owes in all things the same as the said john. alan atte felde holds a house and 16 acres of land (for which the sergeant pays to the court of bixley 2s.), and he owes at easter and michaelmas 4s., attendance at the manor court, relief, and heriot. john lyllingwyst holds a house and four acres of land and owes at the two terms 2s., attendance at the manor court, relief, and heriot. the same john holds one acre of land in the fields of hoo and owes at the two periods 2s., attendance, relief, and heriot. reginald atte denne holds a house and 18 acres of land and owes at the said periods 18d., attendance, relief, and heriot. robert of northehou holds three acres of land at saltcote and owes at the said periods attendance, relief, and heriot. total of the rents of the villeins, with the value of the hens, 20s. total of all the works of these villeins, 6s.10 1/2 d. and it is to be noted that none of the above-mentioned villeins can give their daughters in marriage, nor cause their sons to be tonsured, nor can they cut down timber growing on the lands they hold, without licence of the bailiff or sergeant of the lord, and then for building purposes and not otherwise. and after the death of any one of the aforesaid villeins, the lord shall have as a heriot his best animal, if he had any; if, however, he have no living beast, the lord shall have no heriot, as they say. the sons or daughters of the aforesaid villeins shall give, for entrance into the holding after the death of their predecessors, as much as they give of rent per year. sylvester, the priest, holds one acre of meadow adjacent to his house and owes yearly 3s. total of the rent of tenants for life, 3s. petronilla atte holme holds a cottage and a piece of land and owes at easter and michaelmas ; also, attendance, relief, and heriot. walter herying holds a cottage and a piece of land and owes at easter and michaelmas 18d., attendance, relief, and heriot. isabella mariner holds a cottage and owes at the feast of st. michael 12d., attendance, relief, and heriot. jordan atte melle holds a cottage and 1 1/2 acres of land and owes at easter and michaelmas 2s., attendance, relief, and heriot. william of batelesmere holds one acre of land with a cottage and owes at the feast of st. michael 3d., and one cock and one hen at christmas of the value of 3d., attendance, relief, and heriot. john le man holds half an acre of land with a cottage and owes at the feast of st. michael 2s., attendance, relief, and heriot. hohn werthe holds one rood of land with a cottage and owes at the said term 18d., attendance, relief, and heriot. geoffrey caumbreis holds half an acre and a cottage and owes at the said term 18d., attendance, relief, and heriot. william hassok holds one rood of land and a cottage and owes at the said term 18d., attendance, relief, and heriot. the same man holds 3 1/2 acres of land and owes yearly at the feast of st. michael 3s. for all. roger doget holds half an acre of land and a cottage, which were those of r. the miller, and owes at the feast of st. michael 18d., attendance, relief, and heriot. thomas le brod holds one acre and a cottage and owes at the said term 3s., attendance, relief, and heriot. agnes of cayworth holds half an acre and a cottage and owes at the said term 18d., attendance, relief, and heriot. total of the rents of the said cottagers, with the value of the hens, 34s.6d. and it is to be noted that all the said cottagers shall do as regards giving their daughters in marriage, having their sons tonsured, cutting down timber, paying heriot, and giving fines for entrance, just as john of cayworth and the rest of the villeins above mentioned." the above fines and penalties, with heriots and reliefs, are worth 5s. yearly. often one village was divided up among two or more manors, so different manorial customs made living conditions different among the villagers. villages usually had carpenters, smiths, saddlers, thatchers, carters, fullers, dyers, soapmakers, tanners, needlers, and brassworkers. each villein had his own garden in which to grow fruit and vegetables next to his house, a pig (which fattened more quickly than other animals), strips in the common field, and sometimes an assart [a few acres of his own to cultivate as he pleased on originally rough uncultivated waste land beyond the common fields and the enclosed common pastures and meadows]. most villeins did not venture beyond their village except for about ten miles to a local shrine or great fair a couple times a year. at the fair might be fish, honey, spices, salt, garlic, oil, furs, silks, canvas, soap, pans, pots, grindstones, coal, nails, tar, iron, shovels, brushes, pails, horses, and packsaddles. early apothecaries might sell potions there. men and women looking for other employment might attend to indicate their availability. under edward i, villages were required to mount watches to protect life and property and were called upon to provide one man for the army and to pay his wages. people told time by counting the number of rings of the church bell, which rang on the hour. every sunday, the villagers went to church, which was typically the most elaborate and centrally located building in the village. the parishioners elected churchwardens, who might be women. this religion brought comfort and hope of going to heaven, rather than hell, after judgment by god at death if sin was avoided or forgiven. on festival days, bible stories, legends, and lives of saints were read or performed as miracle dramas. they learned to avoid the devil, who was influential in lonely places like forests and high mountains. at death, the corpse was washed, shrouded, and put into a rectangular coffin with a cross on its lid. priests sang prayers amid burning incense for the deliverance of the soul to god while interring the coffin into the ground. men who did not make a will risked the danger of an intestate and unconfessed death. the personal property of a man dying intestate now went to the church as a trust for the dead man's imperiled soul instead of to the man's lord. unqualified persons entered holy orders thereby obtaining "benefit of clergy", and then returned to secular employments retaining this protection. a villein could be forever set free from servitude by his lord as in this example: "to all the faithful of christ to whom the present writing shall come, richard, by the divine permission, abbot of peterborough and of the convent of the same place, eternal greeting in the lord: let all know that we have manumitted and liberated from all yoke of servitude william, the son of richard of wythington, whom previously we have held as our born bondman, with his whole progeny and all his chattels, so that neither we nor our successors shall be able to require or exact any right or claim in the said william, his progeny, or his chattels. but the same william, with his whole progeny and all his chattels, shall remain free and quit and without disturbance, exaction, or any claim on the part of us or our successors by reason of any servitude forever. we will, moreover, and concede that he and his heirs shall hold the messuages, land, rents, and meadows in wythington which his ancestors held from us and our predecessors, by giving and performing the fine which is called merchet for giving his daughter in marriage, and tallage from year to year according to our will, that he shall have and hold these for the future from us and our successors freely, quietly, peacefully, and hereditarily, by paying to us and our successors yearly 40s. sterling, at the four terms of the year, namely: at st. john the baptist's day 10s., at michaelmas 10s., at christmas 10s., and at easter 10s., for all service, exaction, custom, and secular demand; saving to us, nevertheless, attendance at our court of castre every three weeks, wardship, and relief, and outside service of our lord the king, when they shall happen. and if it shall happen that the said william or his heirs shall die at any time without an heir, the said messuage, land rents, and meadows with their appurtenances shall return fully and completely to us and our successors. nor will it be allowed to the said william or his heirs to give, sell, alienate, mortgage, or encumber in any way, the said messuage, land, rents, and meadows, or any part of them, by which the said messuage, land, rents, and meadows should not return to us and our successors in the form declared above. and if this should occur later, their deed shall be declared null, and what is thus alienated shall come to us and our successors... given at borough, for the love of lord robert of good memory, once abbot, our predecessor and maternal uncle of the said william, and at the instance of the good man, brother hugh of mutton, relative of the said abbot robert, a.d. 1278, on the eve of pentecost." villeins who were released from the manorial organization by commutation of their service for a money payment took the name of their craft as part of their name, such as, for the manufacture of textiles, weaver, draper, comber, fuller, napper, cissor, tailor, textor; for metalwork, faber, ironmonger; for leatherwork, tanner; for woodwork, building and carpentry, carpenter, cooper, mason, pictor; for food production, baker, pistor. iron, tin, lead, salt, and even coal were providing increasing numbers of people with a livelihood. many new boroughs were founded as grants of market rights by the king grew in number. these grants implied the advantage of the king's protection. in fact, one flooded town was replaced with a new town planned with square blocks. it was the charter which distinguished the borough community from the other communities existing in the country. it invested each borough with a distinct character. the privileges which the charter conferred were different in different places. it might give trading privileges: freedom from toll, a guild merchant, a right to hold a fair. it might give jurisdictional privileges: a right to hold court with greater or less franchises. it might give governmental privileges: freedom from the burden of attending the hundred and county courts, the return of writs, which meant the right to exclude the royal officials, the right to take the profits of the borough, paying for them a fixed sum to the crown or other lord of the borough, the right to elect their own officials rather than them being appointed by the king or a lord, and the right to provide for the government of the borough. it might give tenurial privileges: the power to make a will of lands, or freedom from the right of a lord to control his tenants' marriages. it might give procedural privileges: trial by combat is excluded, and trial by compurgation is secured and regulated. these medieval borough charters are very varied, and represent all stages of development and all grades of franchise. boroughs bought increasing rights and freedoms from their lord, who was usually the king. in the larger towns, where cathedrals and public building were built, there arose a system for teaching these technical skills and elaborate handicraft, wood, metal, stained glass, and stone work. a boy from the town would be bound over in apprenticeship to a particular craftsman, who supplied him with board and clothing. the craftsman might also employ men for just a day. these journeymen were not part of the craftsman's household as was the apprentice. after a few years of an apprenticeship, one became a journeyman and perfected his knowledge of his craft and its standards by seeing different methods and results in various towns. he was admitted as a master of his trade to a guild upon presenting an article of his work worthy of that guild's standard of workmanship: his "masterpiece". women, usually wives of brethren only, could be admitted. the tailors' guild and the skinners' guild are extant now. when guilds performed morality plays based on bible stories at town festivals, there was usually a tie between the bible story and the guild's craft. for instance, the story of the loaves and fishes would be performed by the bakers' or fishmongers' guild. the theme of the morality play was the fight of the seven cardinal virtues against the seven deadly sins for the human soul, a lifelong battle. the number seven was thought to have sacred power; there were seven sacraments, seven churches in the biblical apocalypse, seven liberal arts and seven devilish arts. the seven sacraments were: baptism, confirmation, lord's supper, penance, orders, matrimony, and extreme unction. a borough was run by a mayor elected usually for life. by being members of a guild, merchant-traders and craftsmen acquired the legal status of burgesses and had the freedom of the borough. each guild occupied a certain ward of the town headed by an alderman. the town aldermen, who were unpaid, made up the town council, which advised the mayor. the mayor of london received 40 pounds for hospitality, but in small towns, 20s. sufficed. often there were town police, bailiffs, beadles [messengers], a town crier, and a town clerk. london offices included recorder, prosecutor, common sergeant, and attorneys. in the center of town were the fine stone houses, a guildhall with a belfry tower, and the marketplace a square or broad street, where the town crier made public announcements with bell or horn. here too was the ducking stool for scandalmongers and the stocks which held offenders by their legs and perhaps their hands to be scorned and pelted by bystanders with, for instance, rotten fruit and filth. no longer were towns dominated by the local landholders. in london there were 4 royal princes, 6 great earls, 17 barons, 26 knights, and 11 female representatives of the peerage (counted in 1319). there was a wall with four towers surrounding the white tower, and this castle was known as the tower of london. another wall and a moat were built around it and it has reached its final form. hovels, shops, and waste patches alternated with high walls and imposing gateways protecting mansions. the mansions had orchards, gardens, stables, brewhouses, bakeries, guardrooms, and chapels. london streets were paved with cobbles and sand. each citizen was to keep the street in front of his tenement in good repair. later, each alderman appointed four reputable men to repair and clean the streets for wages. the repair of bishopsgate was the responsibility of the bishop because he received one stick from every cart of firewood passing through it. rules as to tiled roofs were enforced. a 1297 ordinance required all taverns to close at curfew, an hour that fluctuated. prostitutes were expelled from the city because the street with their bawdy houses had become very noisy. women huckster-retailers, nurses, servants, and loose women were limited to wearing hoods furred with lambskin or rabbitskin and forbidden to wear hoods furred with vair or miniver [grey or white squirrel] in the guise of good ladies. an infirmary for the blind was founded by a mercer, who became its first prior. the london mayoral elections were hotly fought over until in 1285, when the aldermen began to act with the aid of an elected council in each of the twenty-four wards, which decentralized the government of the city. each ward chose certain of its inhabitants to be councilors to the aldermen. this council was to be consulted by him and its advice to be followed. in 1291, the aldermen for the first time included a fishmonger. the fishmongers were the only guild at this time, besides the weavers, which had acquired independent jurisdiction by the transfer of control of their weekly hallmote from a public official to themselves. craftsmen began to take other public offices too. by the reign of edward ii, all the citizens were obliged to be enrolled among the trade guilds. a great quarrel between the weaver's guild and the magistracy began the control of the city by the craft guilds or city companies. admission to freedom of the city [citizenship] was controlled by the citizens, who decided that no man of english birth, and especially no english merchant, who followed any specific mistery [french word for a calling or trade] or craft, was to be admitted to the freedom of the city except on the security of six reputable men of that mistery or craft. no longer could one simply purchase citizenship. apprentices had to finish their terms before such admission, and often could not afford the citizenship fee imposed on them. only freemen could sell wares in the city, a custom of at least two hundred years. as economic activity in london became more complex and on a larger scale in the 1200s, some craftsmen were brought under the control of other crafts or merchants. the bakers fell under the control of the wholesale grain dealers; the weavers became pieceworkers for rich cloth merchants; the blademakers and shearers were employed by cutlers; coppersmiths were controlled by girdlers; fullers were controlled by entrepreneurial dyers; and the painters, joiners, and lorimers were controlled by the saddlers. guilds moved their meeting places from churches, which were now too small, to guild halls. the controlling officers of the large guilds met at the guildhall, which became the seat of mayoral authority. london streets in existence by this time include cordwainer, silver, cannon (candlewick), and roper. lanes included ironmonger, soper, spurrier, lad (ladles), distaff, needles, mede, limeburner, and hosier. fighting among groups was common in london. there was a street fight on a large scale in 1327 between the saddlers and a coalition of joiners, painters, and lorimers (makers of metal work of saddles). much blood was shed in the street battle between the skinners and the fishmongers in 1340. there was a city ordinance that no one except royal attendants, baronial valets, and city officials were to go about armed. disputes among neighbors that were brought to court included the use and upkeep of party walls, blocked and overflowing gutters, cesspits too close to a neighbor's property, noisy tenants, loss of light, and dangerous or overhanging structures. in 1275, a goldsmith was chief assay-master of the king's mint and keeper of the exchange at london. the king gave the goldsmiths' company the right of assay [determination of the quantity of gold or silver in an object] and required that no vessels of gold or silver should leave the maker's hands until they had been tested by the wardens and stamped appropriately. in 1279, goldsmith william farrington bought the soke of the ward containing the goldsmiths' shops. it remained in his family for 80 years. a patent of 1327 empowered the guild to elect a properly qualified governing body to superintend its affairs, and reform subjects of just complaint. it also prescribed, as a safeguard against a prevailing fraud and abuse, that all members of the trade should have their standing in cheapside or in the king's exchange, and that no gold or silver should be manufactured for export, except that which had been bought at the exchange or of the trade openly. some prices in london were: large wooden bedstead 18s., a small bedstead 2s., a large chest for household items 2s., feather beds 2-3s., a table 1s., a chair 4-6d., cloth gown lined with fur 1320s., plain coats and overcoats 2-8s., caps 2-8d., a pair of pencases with inkhorn 4d., a skin of parchment 1d., 24 sheets of paper 6d, a carcass of beef 15s., a pig 4s., a swan 5s., and a pheasant 4s. there was a problem with malefactors committing offenses in london and avoiding its jurisdiction by escaping to southwark across the thames. so southwark was given a royal charter which put it under the jurisdiction of london for peace and order matters and allowed london to appoint its tax collector. london forbade games being played because they had replaced practice in archery, which was necessary for defense. a royal inquiry into the state of the currency indicated much falsification and coin-clipping by the jews and others. about 280 jews and many englishmen were found guilty and hanged. the rest of the jews, about 16,000, were expelled in 1290. this was popular with the public because of the abuses of usury. there had been outbreaks of violence directed at the jews since about 1140. the king used italian bankers instead because he thought them more equitable in their dealings. the lepers were driven out of london in 1276. exports and imports were no longer a tiny margin in an economy just above the subsistence level. exports were primarily raw wool and cloth, but also grain, butter, eggs, herring, hides, leather goods such as bottles and boots, embroideries, metalware, horseshoes, daggers, tin, coal, and lead. imported were wine, silk, timber, furs, rubies, emeralds, fruits, raisins, currents, pepper, ginger, cloves, rice, cordovan leather, pitch, hemp, spars, fine iron, short rods of steel, bow-staves of yew, tar, oil, salt, cotton (for candlewicks), and alum (makes dyes hold). ships which transported them had one or two masts upon which sails could be furled, the recently invented rudder, and a carrying capacity of up to 200 tuns [about one ton]. many duties of sheriffs and coroners were transferred to county landholders by commissions. in coastal counties, there were such commissions for supervising coastal defense and maintaining the beacons. each maritime county maintained a coast guard, which was under the command of a knight. ports had well-maintained harbors, quays, and streets. by 1306 there was an office of admiral of the fleet of the ships of the southern ports. women could inherit land in certain circumstances. some tenants holding land in chief of the king were women. regulation of trade became national instead of local. trade was relatively free; almost the only internal transportation tolls were petty portages and viages levied to recoup the expense of a bridge or road which had been built by private enterprise. responsibility for the coinage was transferred from the individual moneyers working in different boroughs to a central official who was to become master of the mint. the round half penny and farthing [1/4 penny] were created so that the penny needn't be cut into halves and quarters anymore. edward i called meetings of representatives from all social and geographic sectors of the nation at one parliament to determine taxes due to the crown that would replace feudal aids. he declared that "what touches all, should be approved by all". he wanted taxes from the burgesses in the towns and the clergy's ecclesiastical property as well as from landholders. he argued to the clergy that if barons had to both fight and pay, they who could do no fighting must at least pay. when the clergy refused to pay, he put them outside the royal protection and threatened outlawry and confiscation of their lands. then they agreed to pay and to renounce all papal orders contrary to the king's authority. edward i wanted to bring all his subjects undder hisimmediate aujthority by the process of bringing all together to the same assembly under his common presidency. so his model parliament of 1295 was composed of the three communities. the first were the lords, which included seven earls and forty-one barons. because of the increase of lesser barons due to a long national peace and prosperity, the lords attending were reduced in numbers and peerage became dependent not on land tenure, but on royal writ of summons. the great barons were chosen by the king and received a special summons in their own names to the council or parliament. others were called by a general summons. the second community was the clergy, represented by the two archbishops, bishops from each of eighteen dioceses, and sixty-seven abbots. the third community was the commons. it was composed of two knights elected by the suitors who were then present at the county court, two burgesses elected by principal burgesses of each borough, and two representatives from each city. the country knights had a natural affinity with the towns in part because their younger sons sought their occupation, wife, and estate there. also, great lords recruited younger brothers of yeoman families for servants and fighting men, who ultimately settled down as tradesmen in the towns. the country people and the town people also had a community of interest by both being encompassed by the county courts. the peasants were not represented in the county courts nor in parliament. one had to have land to be entitled to vote in parliament because the landowner had a stake in the country, a material security for his good behavior. parliaments without knights and burgesses still met with the king. but it was understood that no extraordinary tax could be levied without the knights and burgesses present. ordinary taxes could be arranged with individuals, estates, or communities. the lower clergy ceased to attend parliament and instead considered taxes to pay to the king during their national church convocations, which were held at the same time as parliament. for collection purposes, their diocesan synod was analogous to the county court. the higher clergy remained in parliament because they were feudal vassals of the king. edward's council was the highest tribunal. it comprised the chancellor, treasurer and other great officers of state, the justices of the three courts, the master or chief clerks of the chancery, and certain selected prelates and barons. the council assisted the king in considering petitions. most petitions to the king were private grievances of individuals, including people of no social rank, such as prisoners. other petitions were from communities and groups, such as religious houses, the two universities, boroughs, and counties. these groups sometimes formed alliances in a common cause. women sometimes petitioned. from 1293, the petitions were placed in four stacks for examination by the king and council, by the chancery, by the exchequer, or by the justices. many hours were spent hearing and answering petitions. from 1305, the petitions were presented to the king in full parliament. the king still exercised a power of legislation without a full parliament. he might in his council issue proclamations. the chief justices still had, as members of the king's council, a real voice in the making of laws. the king and his justices might, after a statute has been made, put an authoritative interpretation upon it. royal proclamations had the same force as statutes while the king lived; sometimes there were demands that certain proclamations be made perpetual by being embodied in statutes, e.g. fixing wages. there was no convention that agreement or even the presence of representatives was required for legislation. the idea that the present can bind the absent and that the majority of those present may outvote the minority was beginning to take hold. edward i's councilors and justices took an oath to give, expedite, and execute faithful counsel; to maintain, recover, increase, and prevent the diminution of, royal rights; to do justice, honestly and unsparingly; to join in no engagements which may present the councilor from fulfilling his promise; and to take no gifts in the administration of justice, save meat and drink for the day. these were in addition to other matters sworn to by the councilors. parliament soon was required to meet at least once a year at the great hall at westminster located beside the royal palace. london paid its representatives 10s. per day for their attendance at parliament. from the time of edward ii, the counties paid their knightrepresentatives 4s. daily, and the boroughs paid their burgessrepresentatives 2s. daily. when it convened, the chancellor sat on the left and the archbishop of canterbury on the right of the king. just below and in front of the king his council sits on wool sacks brought in for their comfort from wool stored nearby. it answers questions. behind them on the wool sacks sit the justices, who may be called upon to give legal advice, e.g. in framing statutes. then come the spiritual and lay barons, then the knights, and lastly the elected burgesses and citizens. lawmaking became a function of parliament, of which the king's council is a part, instead of a function of the king with his council and justices. the common people now had a voice in lawmaking, though legislation could be passed without their consent. the first legislation proposed by the commons was alteration of the forest laws governing the royal pleasure parks. such a statute was passed in a bargain for taxes of a percentage of all movables, which were mostly foodstuffs and animals. the king offered to give up the royal right to tax merchandise for a new tax: customs on exports. the barons and knights of the county agreed to pay an 11th, the burgesses, a 7th, and the clergy a 10th on their other movables. in time, several boroughs sought to be included in the county representation so they could pay the lower rate. this new system of taxation began the decline of the imposition of feudal aids, knights' fees, scutages, carucage, and tallage, which had been negotiated by the exchequer with the reeves of each town, the sheriff and county courts of each county, and the bishops of each diocese. the staple [depot or mart, from the french "estaple"] system began when the export of wool had increased and parliament initiated customs duties of 6s.8d. on every sack of wool, woolfells [sheepskin with wool still on it], or skins exported in 1275. these goods had to be assessed and collected at certain designated ports. certain large wool merchants, the merchants of the staple, were allowed to have a monopoly on the purchase and export of wool. imports of wine were taxed as tunnage as before, that is there was a royal right to take from each wine ship one cask for every ten at the price of 20s. per cask. in 1297, edward i confirmed the magna carta and other items. judgments contrary to magna carta were nullified. the documents were to be read in cathedral churches as grants of edward and all violators were to be excommunicated. he also agreed not to impose taxes without the consent of parliament after baronial pressure had forced him to retreat from trying to increase, for a war in france, the customs tax on every exported sack of wool to 40s. from the 6s. 8d. per sack it had been since 1275. the customs tax was finally fixed at 10s. for every sack of wool, 2s. for each tun [casket] of wine, and 6d. for every pound's worth of other goods. the "tenths and fifteenths" tax levied on income from movables or chattels became regular every year. edward also confirmed the forest charter, which called for its earlier boundaries. and he agreed not to impound any grain or wool or and like against the will of the owners, as had been done before to collect taxes. also, the special prises or requisitions of goods for national emergency were not to be a precedent. lastly, he agreed not to impose penalties on two earls and their supporters for refusing to serve in the war in france when the king did not go. the magna carta is the first statute. from 1299, statutes were recorded in a statute roll as they were enacted. by the end of the 1200s, the king's wardrobe, where confidential matters such as military affairs were discussed in his bedroom, became a department of state with the king's privy seal. the keeper of the privy seal was established as a new office by edward i in 1318. the wardrobe paid and provisioned the knights, squires, and sergeants of the king and was composed mostly of civil servants. it traveled with the king. the crown's treasure, plate, tents, hangings, beds, cooking utensils, wine, and legal and financial rolls were carried on pack horses or in two-wheeled carts drawn by oxen, donkeys, or dogs. the people in the entourage rode horses or walked. the other two specialized administrative bodies were the exchequer, which received most of the royal revenue and kept accounts at westminster, and the chancery, which wrote royal writs, charters, and letters, and kept records. the chief functions of administration in the 1300s were performed by the council, chancery, wardrobe, chamber [room off wardrobe for dressing and for storage], and exchequer. many of the chancellors had come from the wardrobe and chamber. in time, the chancellor ceased to be a part of the king's personal retinue and to follow the court. the chancery became primarily a department of central administration rather than a secretariat and record-keeping part of the royal household. the king used a privy seal to issue directives to the chancery. edward iii made some merchants earls and appointed them to be his ministers. he did not summon anyone to his council who did not have the confidence of the magnates [barons, earls, bishops, and abbots]. there was a recoinage due to debasement of the old coinage. this increased the number of coins in circulation. the price of wheat went from about 7s. in 1270 to about 5s. per quarter in 1280. also the price of an ox went from 14s. to 10s. then there were broad movements of prices, within which there were wide fluctuations, largely due to the state of the harvest. from 1280 to 1290, there was runaway inflation. in some places, both grain and livestock prices almost doubled between 1305 and 1310. wheat prices peaked at 15s.5d. a quarter in the famine year of 1316. in 1338, prices dropped and remained low for twenty years. the poor were hurt by high prices and the lords of the manors were hurt by low prices. as before, inadequate care and ignorance of nutrition caused many infant deaths. accidents and disease were so prevalent that death was always near and life insecure. many women died in childbirth. edward i always sought the agreement of parliament before assembling an army or taking actions of war, and parliamentary consent came to be expected for such. he completed the conquest and annexation of wales in 1284. the feudal army was summoned for the last time in the 100 year war with france, which began in 1337. in it the english longbow was used to pierce french knights' armor. there had been much competition between the strength of arrows to pierce and the heaviness of armor to resist. guns and cannon with gunpowder were introduced in 1338. a system to raise an army by contract was developed. contracts were made with nobles, knights, or esquires who undertook to enlist an agreed number of armored men-at-arms and archers, who were paid wages. the king provided transport for each contractor and his retinue, baggage, and horses. the title of "knight" now resumed its military character as well as being a social rank. after edward i died in 1307, there was a period of general lawlessness and contests for power between earls and barons and the irresponsible king edward ii, who was not a warrior king. he eventually was assassinated. also in 1307, parliament required the king to obtain its consent for any exchange or alteration of the currency. by 1319, the guilds of london had become so powerful that they extracted a charter from the king that to be a citizen of london one had to be a member of a guild. by 1326, scholars, the nobility, and the clergy had reading eyeglasses, which had been invented in italy, probably by the glass blowers. italy was famous for its glasswork. the first eyeglasses were fabricated by pouring molten glass into curved molds. the actual shape was difficult to control because thermal expansion and contraction resulted in bubbles and other optical imperfections. as of 1336, importing foreign cloth or fur, except for use by the king's family, was prohibited, as was the export of unwoven wool. later, this was relaxed and a customs tax of 33% was imposed on wool exported. foreign cloth workers were allowed by statute to come to live in the nation, be granted franchises, and be in the king's protection. but no cloth was to be exported until it was fulled. during the reign of edward iii, flanders weavers were encouraged to come to england to teach the english how to weave and finish fine cloth. a cloth industry grew with all the manufacturing processes under the supervision of one capitalist manufacturer, who set up his enterprise in the country to avoid the regulations of the towns. the best places were hilly areas where there were many streams and good pasture for flocks of sheep. he hired shearers to cut the nap as short as possible to give a smooth surface, then spinsters to card and spin the wool in their country cottages, then weavers, and then fullers and dyers to come to fulling mills established near streams for their waterpower. fulling became mechanized as heavy wooden hammers run by waterpower replaced feet trampling the cloth covered with soap or fuller's clay. the shaft loom was a technological advance in weaving. this loom was horizontal and its frames, which controlled the lifting of the warp threads, could each be raised by a foot treadle. this left both hands free to throw and catch the shuttle attached to the weft thread from side to side through the warp. also many more weaving patterns became possible through the use of different thread configurations on the frames. in 1341, the commons forced king edward iii and council to approve their petition when parliament was still in session so that they would draft the legislation in true accordance with the petition. this had not been done when drafting had been done after parliament ended, when the phrase "saving the prerogatives of the king" was often added. also the lords and commons consulted each other and joined in petitions. but they usually stated their conclusions to the king separately. it was considered a burden rather than a privilege to attend parliament and elections for such were not often contested. they were conducted according to local custom until 1600. in 1348, the commons voted a tax of 1/15 th on movables for three years with the proviso that it be spent only on the war against scotland. this began the practice of appropriation of funds. in 1381, began the practice of appointing treasurers of the subsidies to account to parliament for both receipts and disbursements. alien merchants were under the king's special protection. in return for paying extra import and export duties, edward iii gave alien merchants full rights of trade, travel, and residence in england free of all local tolls and restrictions, and guaranteed a fair hearing of their commercial and criminal cases in special pie powder (after french "pie poudrous" or dusty feet) courts at fairs. the law edward i remodeled the law in response to grievances and to problems which came up in the courts. the changes improved the efficiency of justice and served to accommodate it to the changing circumstances of the social system. "no man by force of arms, malice or menacing shall disturb anyone in making free election [of sheriffs, coroners, conservators of the peace by freeholders of the county]." "no city, borough, town, nor man shall be amerced without reasonable cause and according to the severity of his trespass. that is, every freeman saving his freehold, a merchant saving his merchandise, a villein saving his wainage [implements of agriculture], and that by his peers." no distress shall be taken of ploughing-cattle or sheep. no loan shall be made for interest. if an heir who is a minor is married off without the consent of the guardian, the value of the marriage will be lost and the wrongdoer imprisoned. if anyone marries off an heir over 14 years of age without the consent of the guardian, the guardian shall have double the value of the marriage. moreover, anyone who has withdrawn a marriage shall pay the full value thereof to the guardian for the trespass and make amends to the king. and if a lord refuses to marry off a female heir of full age and keep her unmarried because he covets the land, then he shall not have her lands more than two years after she reaches full age, at which time she can recover her inheritance without giving anything for the wardship or her marriage. however, if she maliciously refuses to be married by her lord, he may hold her land and inheritance until she is the age of a male heir, that is, 21 years old and further until he has taken the value of the marriage. aid to make one's son a knight or marry off his daughter of a whole knight's fee shall be taken 20s., and 400s. [yearly income from] land held in socage 20s. [5%], and of more, more; and of less, less; after the rate. and none shall levy such aid to make his son a knight until his son is 15 years old, nor to marry his daughter until she is seven year old. the common law of inheritance for land has assumed its final form with six rules. 1) a living descendant excludes his or her own descendants. 2) a dead descendant is represented by his or her own descendants. 3) males exclude females of equal degree. 4) among males of equal degree, only the eldest inherits. 6) the rule that a dead descendant is represented by his or her descendants overrides the preference for the male sex. if there were no descendants, the land escheated to its lord. by statute, a conveyance of land which is the inheritance of a minor child by his guardian or lord to another is void. dower shall not abate because the widow has received dower of another man unless part of the first dower received was of the same tenant and in the same town. but a woman who leaves her husband for another man is barred from dower. a tenant for a term of years who has let land from a landlord shall not let it lie waste, nor shall a landlord attempt to oust a tenant for a term of years by fictitious recoveries. when two or more hold wood, turfland, or fishing or other such thing in common, wherein none knows his several, and one does waste against the minds of the others, he may be sued. lands which are given to a man and his wife upon condition that if they die without heirs, the land shall revert to the donor or his heir, may not be alienated to defeat this condition. if a man takes land in marriage with a wife, and she dies before him, the land will revert to the donor or his heir, unless the couple has a child, in which case the husband will have the land by the courtesy of the nation for his life before it reverts to the donor or his heir. young salmon shall not be taken from waters in the spring. a free tenant may alienate his land freely, but if the alienation was for an estate in fee simple [to a man and his heirs, with a full right of alienation by the man otherwise than on his death], the person acquiring the land would hold of the land's lord and not of the person alienating the land. (this halted the growth of subinfeudation and caused services as well as incidents of aids, relief, escheat, wardship, and marriage to go directly to the chief lord. it also advantaged the crown as overlord, which then acquired more direct tenants.) one may create an estate which will descend in unbroken succession down the line of inheritance prescribed in the original gift as long as that line should last, instead of descending to all heirs. this was called a "fee simple conditional" holding of land. the successive occupants might draw the rents and cut the wood, but on the death of each, his heir would take possession of an unencumbered interest, unfettered by any liability for the debt of his ancestor or by any disposition made by him during his lifetime e.g. a wife's estate in dower or a husband's estate in courtesy. if there was no issue, it reverted to the original donor. this curtailed the advantage of tenants of the greater barons who profited by increased wardships and reliefs from subinfeudation from subdivision and better cultivation of their land while still paying the greater barons fixed sums. this statute that protected reversionary estates incidentally established a system of entails. this new manner of holding land: "fee tail", is in addition to the concepts of land held in fee simple and land held for life. the donor could give directions that an estate of inheritance go to a man or woman and certain classes of particular heirs rather than reverting to himself. a fee tail was often given to a man and the issue of his body. no donee or nor his heirs could alienate the land held in fee tail.interests in remainder or reversion of estates in land replaced the lord's tenurial right to succeed to land by escheat if his tenant dies without heirs. anyone disseising another whereby he also robs him or uses force and arms in the disseisin shall be imprisoned and fined. the plaintiff shall recover seisin and damages. "all must be ready at the command and summons of sheriffs, and at the cry of the country, to sue and arrest felons as necessary as well within franchise as without." otherwise, he shall be fined. a lord defaulting shall lose his franchise to the king. a bailiff defaulting shall be imprisoned a year as well as fined, or be imprisoned two years if he cannot pay the fine. a sheriff, coroner, or any other bailiff who conceals a felony will be imprisoned for a year and pay a fine, or be imprisoned for three years if he cannot pay the fine. villeins must report felons, pursue felons, serve in the watch, and clear growth of concealing underwood from roads. they must join the military to fight on the borders when called. desertion from the army is punishable. accessories to a crime shall not be declared outlaw before the principal is proven guilty. (this made uniform the practice of the various counties.) only those imprisoned for the smaller offenses of a single incidence of petty larceny, receipt of felons, or accessory to a felony, or some other trespass not punishable by life or limb shall be let out by sufficient surety. prisoners who were outlawed or escaped from prison or are notorious thieves or were imprisoned for felonious house burning, passing false money, counterfeiting the king's seal, treason touching the king himself, or other major offenses or have been excommunicated by the church may not be released. killing in self-defense and by mischance shall be pardoned from the king's indictment. killing by a child or a person of unsound mind shall be pardoned from the king's indictment. (but a private accuser can still sue.) any man who ravishes [abducts] any woman without her consent or by force shall have the criminal penalty of loss of life or limb. (the criminal penalty used to be just two years in prison.) trespasses in parks or ponds shall be punished by imprisonment for three years and a fine as well as paying damages to the wronged person. after his imprisonment, he shall find a surety or leave the nation. "forasmuch as there have been often times found in the country devisors of tales, where discord, or occasion of discord, has many times arisen between the king and his people, or great men of this realm; for the damage that has and may thereof ensue, it is commanded, that from henceforth none be so hardy to tell or publish any false news or tales, whereby discord or occasion of discord or slander may grow between the king and his people, or the great men of the realm." anyone doing so shall be imprisoned until he brings into the court the first author of the tale. a system of registration and enforcement of commercial agreements was established by statute. merchants could obtain a writing of a debt sealed by the debtor and authenticated by royal seal or a seal of a mayor of certain towns, and kept by the creditor. failure to pay a such a debt was punishable by imprisonment and, after three months, the selling of borough tenements and chattels and of county lands. during the three months, the merchant held this property in a new tenure of "statute merchant". (prior to this, it was difficult for a foreign merchant to collect a debt because he could not appear in court which did not recognize him as one of its proper "suitors" or constituents, so he had to trust a local attorney. also, the remedy was inadequate because the history of the law of debt was based on debt as a substitute for the blood feud, so that failure to pay meant slavery or death. also a debtor's land was protected by feudal custom, which was contrary to the idea of imposing a new tenant on a lord.) "in no city, borough, town, market, or fair shall a person of the realm be distrained for a debt for which he is not the debtor or pledge." anyone making those passing with goods through their jurisdiction answer to them in excess of their jurisdiction shall be grievously amerced to the king. no market town shall take an outrageous toll contrary to the common custom of the nation. since good sterling money has been counterfeited with base and false metal outside the nation and then brought in, foreigners found in the nation's ports with this false money shall forfeit their lives. anyone bringing money into the nation must have it examined at his port of entry. payments of money shall be made only by coin of the appropriate weight delivered by the warden of the exchange and marked with the king's mark. (a currency exchange was established at dover for the exchange of foreign currency for english sterling.) the silver in craftwork must be sterling and marked with the leopard's head. the gold in craftwork must meet the standard of the touch of paris. the assize of bread and ale had been and was enforced locally by local inspectors. now, the crown appointed royal officers for the gauge of wines and measurement of cloths. edicts disallowed middlemen from raising prices against consumers by such practices as forestalling [intercepting goods before they reached the market and then reselling them] or engrossing [buying a large supply of a commodity to drive up the price] and price regulation was attempted. for instance, prices were set for poultry and lamb, in a period of plenty. maximum prices were set for cattle, pigs, sheep, poultry, and eggs in 1314, but these prices were hard to enforce. in london examples of prices set are: best hen 3d.2q., best wild goose 4d., best hare 4d., best kid 10d., best lamb 4d., best fresh herrings 12 for 1d., best pickled herrings 20 for 1d., best haddock 2d., best fresh salmon 3s. freemen may drive their swine through the king's demesne forest to feed in their own woods or elsewhere. no man shall lose his life or limb for killing deer in the forest, but instead shall be grievously fined or imprisoned for a year. the forest charter allowed a man to cut down and take wood from his own woods in the king's forest to repair his house, fences, and hedges. he may also enclose his woods in the king's forest with fences and hedges to grow new trees and keep cattle and beasts therefrom. after seven years growth of these new trees, he may cut them down for sale with the king's permission. each borough has its own civil and criminal ordinances and police jurisdiction. borough courts tended to deal with more laws than other local courts because of the borough's denser populations, which were composed of merchants, manufacturers, and traders, as well as those engaged in agriculture. only borough courts have jurisdiction over fairs. in some boroughs the villein who resides for a year and a day becomes free, a right first given by henry ii in his charter for nottingham. there are special ordinances relating to apprentices. there are sometimes ordinances against enticing away servants bound by agreement to serve another. the wife who is a trader is regarded in many places as a feme sole [single woman rather than a woman covert, who was under the protection of a husband]. there may be special ordinances as to the liability of masters for the acts of their apprentices and agents, or as to brokers, debt, or earnest money binding a bargain. the criminal and police jurisdiction in the borough was organized upon the same model as in the country at large, and was controlled by the king's courts upon similar principles, though there are some survivals of old rules, such as mention of the bot and the wer. the crimes committed are similar to those of the country, such as violence, breaches of the assize of bread and beer, stirring up suits before the ecclesiastical courts, digging up or obstructing the highway, not being enrolled in a tithing, encroachments upon or obstructions of rights of common. the most striking difference with the country at large are the ordinances on the repair or demolition of buildings, encroachments on another's building, fires, and nuisances. specimens of other characteristic urban disputes are: selling bad food, using bad materials, unskillful or careless workmanship, fraudulent weights and measures, fraud in buying and selling, forestalling or regrating [buying in one market to resell in another market], acting in a way likely to endanger the liberties of the borough, usury, trading without being a citizen, assisting other unlicensed persons to trade, unlawfully forming a guild, complaints against various guilds in which trade might be organized. since the ordinances were always liable to be called in question before the king's courts, they tended to become uniform and in harmony with the principles of the common law. also, trading between boroughs kept them knowledgeable about each other's customs and conditions for trade, which then tended to standardize. boroughs often had seals to prove communal consent and tended to act as a corporate body. borough ordinances often include arson such as this one: "and if a street be set on fire by any one, his body shall be attached and cast into the midst of the fire." robbery by the miller was specially treated by an ordinance that "and if the miller be attainted [found guilty] of robbery of the grain or of the flour to the amount of 4d., he shall be hanged from the beam in his mill." in london, an ordinance prescribed for bakers for the first offense of making false bread a forfeiture of that bread. for the second offense was prescribed imprisonment, and for the third offense placement in the pillory. a london ordinance for millers who caused bread to be false prescribed for them to be carried in a tumbrel cart through certain streets, exposed to the derision of the people. by statute, no one may make a gift or alienation of land to the church. an attempt to do so will cause the land to escheat to the lord, or in his default, to the king. religious houses may not alienate land given to them by the king or other patrons because such gifts were for the sake of someone's soul. an attempt to do so will cause the land to revert to the donor or his heir. if the church did not say the prayers or do the other actions for which land was given to it, the land will revert to the donor or his heir. land may not be alienated to religious bodies in such a way that it would cease to render its due service to the king. (the church never died, never married, and never had children.) the church shall send no money out of the nation. (this statute of mortmain was neutralized by collusive lawsuits in which the intended grantor would sue the intended grantee claiming superior title and then would default, surrendering the land to the intended grantee by court judgment.) "concerning wrecks of the sea, where a man, a dog, or a cat escape alive out of the ship, that such ship nor barge nor anything within them shall be deemed wreck, but the goods shall be saved and kept by view of the sheriff, coroner, or the king's bailiff". if anyone proves the goods were his within a year and a day, they shall be restored to him without delay. otherwise, they shall be kept by the king. "and where wreck belongs to one other than the king, he shall have it in like manner". if he does otherwise, he shall be imprisoned and pay damages and fine. some statutes applied only to kent county, which had a unique position between london and the continent. money flowed between england and the continent through kent. so kent never developed a manorial system of land holding, but evolved from a system of clans and independent villages directly into a commercial system. in kent, all men are free and may give or sell their lands without permission of their lords, as before the conquest. one could sell or give away his land without the consent of one's lord. the services of the land, however, could only be sold to the chief lord. inheritance of land was to all sons by equal portions, and if there were no sons, then to all daughters in equal portions. the eldest brother has his choice of portion, then the next oldest, etc. the goods of a deceased person were divided into three parts after his funeral expenses and debts were paid. one third went to the surviving spouse. one third went to the deceased's sons and daughters. one third could be disposed by will of the decedent. if there were no children, one half went to the spouse and one half went according to will. if an heir was under 15 years old, his next of kin to whom inheritance could not descend was to be his guardian. a wife who remarried or bore a child lost her dower land. a husband lost his dower if he remarried. if a tenant withheld rent or services, his lord could seek award of court to find distress on his tenement and if he could find none, he could take the tenement for a year and a day in his hands without manuring it. it the tenant paid up in this time, he got the tenement back. if he didn't within a year and a day, however, the lord could manure the land. a felon forfeited his life and his goods, but not his lands or tenements. a wife of a felon had the dower of one half or her husband's lands and tenements. the common law recognized the tort of false imprisonment if a man arrested as a felon, a person who was not a felon. judicial procedure the highest court was the king and his council in parliament. it heard the most important causes, important because they concern the king, or because they concern very great men (e.g. treason), or because they involve grave questions of public law, or because they are unprecedented. it has large, indefinite powers and provides new remedies for new wrongs. the office of great justiciar disappears and the chancellor becomes the head of the council. the chancellor heads the chancery, which is the secretarial department of the royal court. a litigant could not proceed without first obtaining a writ from chancery. the chancellor could form new writs. after the council were the royal courts of the king's bench, common pleas, and the exchequer, which had become separate, each with its own justices and records. the court of common pleas had its own chief justice and usually met at westminster. this disadvantaged the small farmer, who would have to travel to westminster to present a case. the king's council maintained a close connection with the court of the king's bench, which heard criminal cases and appeals from the court of common pleas. it traveled with the king. there were many trespass cases so heard by it in the reign of edward i. the king's council did a great deal of justice, for the more part criminal justice. it was supported by the populace because it dealt promptly and summarily with rebellion or some scandalous acquittal of a notorious criminal by bribed or partial jurors, and thereby prevented anarchy. its procedure was to send for the accused and compel him to answer upon oath written interrogatories. affidavits were then sworn upon both sides. with written depositions before them, the lords of the council, without any jury, acquit or convict. fines and imprisonments were meted out to rioters, conspirators, bribers, and perjured jurors. no loss of life or limb occurred because there had been no jury. in criminal cases, witnesses acquainted with particular facts were added to the general assize of twelve lawful men from each hundred and four lawful men from each town to testify to facts unknown by the assize men. the assize was bifurcated into the grand jury of twelve to twenty-four knights and the petty jury or trial jury of twelve free and lawful men, which replaced ordeal, compurgation, and trial by combat as the method of finding the truth. the men of the petty jury as well as those of the grand jury were expected to know or to acquaint themselves with the facts of the cases. the men of the petty jury tended to be the same men who were on the grand jury. felony was determined by common law to be one of seven offenses: treason, homicide, arson, rape, robbery, burglary, and grand larceny, the last of which involved over 12d., where 12d. was enough to keep a man from starvation for eight days. high treaason included covered the making of counterfeit money and the clipping if coin. burglary was an offense committed in times of peace and consisted of breaking into churches, houses, and into the walls and gates of villages and boroughs. these seven offenses could be prosecuted by indictment or private accusation by an individual. they were appealable, that is, the accuser must in general offer trial by battle. the penalties involved loss of life or limb or, if he fled, outlawry. actually, the death penalty was replacing loss of life or limb. death by hanging was the usual punishment. a felon's goods were confiscated by the crown and his land was forfeited to the crown for a year and a day and waste, after which it escheated to the felon's lord. the crimes of wounding, mayhem, and false imprisonment were not now felonies. the peace of the king now did not die with the king, but renewed automatically without an interval before the inauguration of a new king. notorious felons who would not consent or put themselves on inquests for felonies with which they were charged at royal courts were put in strong and hard imprisonment to persuade them to accept trial by assize. this inducement progressed into being loaded with heavy chains and placed on the ground in the worst part of the prison and being fed a only little water one day and a little bread the next. sometimes pieces of iron or stones were placed one another onto their prone bodies to persuade them to plead. this then developed into being loaded with as much iron as could be borne, and finally into being pressed to death ["peine forte et dure"]. many of these men chose to die by this pressing so that their families could inherit their property, which would have been forfeited if they had been convicted of serious crimes. the most common cases in the court of common pleas were detinue, "debt" [for money due from a sale, for money loaned, for rent upon a lease for years, from a surety, promised in a sealed document, or due to arbitrators to whom a dispute had been submitted] and "account" [e.g. against bailiffs of manors, a guardian in socage, and partners]. it also heard estovers [right to use during a lease] of wood, profit by gathering nuts, acorns, and other fruits in wood, corody [allowance of food], yearly delivery of grain, toll, tunnage, passage, keeping of parks, woods, forests, chases, warrens, gates, and other bailiwicks, and offices in fee. the itinerant justices gradually ceased to perform administrative duties on their journeys because landed society had objected to their intrusiveness. edward i substituted regular visitations of justices of assize for the irregular journeys of the itinerant justices. each one of four circuits had two justices of assize. from about 1299, these justices of assize heard cases of gaol delivery. their jurisdiction expanded to include serious criminal cases and breach of the king's peace. one woman was indicted to every 9 men. 16% of the women who were indicted were convicted compared to 30% of the men. breaches of the forest charter laws were determined by justices of the king's forest, parks, and chases, along with men of assize. coroners' inquest procedures were delineated by statute and included describing in detail in the coroner's rolls every wound of a dead body, how many may be culpable, and people claiming to have found treasure who might be suspects. the precedent for punishment for treason was established by the conviction of a knight, david ab gruffydd, who had turned traitor to the welsh enemy, after fighting with edward and being rewarded with land, during the conquest of wales. he had plotted to kill the king. he was found guilty of treason by parliament and condemned to be dragged at the heels of horses for being a traitor to his knightly vows, hanged by the neck for his murders, cut down before consciousness left him to have his entrails cut out for committing his crimes during the holy week of easter, and his head cut off and his body divided into four parts for plotting against the king's life. the head was placed on the tower of london and his body sections were placed in public view at various other locations in england. this came to be known as "hanging, drawing, and quartering". prior to this the penalty had usually been imprisonment followed by ransom. the penalty for a woman of treason, e.g. killing her husband, who was her lord, was burning at the stake. trial by combat is now limited to certain claims of enfeoffment of large land holding and is barred for land held in socage, burgage, or by marriage. (trial by combat eventually fell into disuse, but was not abolished until 1819.) assize is the usual manner of trial, but compurgation remains in the borough court long after it becomes obsolete in the royal courts. it came to be that defendants no longer request assizes but are automatically put to them. numerous statutes protect the integrity of the courts and king's offices by double and treble damages and imprisonment for offenses such as bribery, false informers, conspiracy to falsely move or maintain pleas, champerty [covenant between a litigant and another for the other to have a part or profit in the award in return for maintaining the suit], conflict of interest by court officers taking part in a quarrel pending in court or working any fraud whereby common right may be delayed or disturbed. there had been many abuses, the most common of which was extortion by sheriffs, who gaoled people without cause to make them pay to be released. the 1275 prohibition of maintenance of a quarrel of a party in court by a nonparty was extended in 1327 to all persons, including the king's councilors and ministers, and great men, e.g. by sending letters. in 1346, this prohibition specifically included prelates, earls, barons taking in hand quarrels other than their own, or maintaining them for gift, promise, amity, favor, doubt, or fear, in disturbance of law and hindrance of right. the reason given was that there had been persons disinherited, delayed or disturbed in their rights, and not guilty persons convicted or otherwise oppressed. all great men were required to put out of their service all maintainers who had been retained, and void their fees and robes, without giving them aid, favor, or comfort. this law was not obeyed. the king reserved to himself and his council in its judicial capacity the correction of all breaches of the law which the lower courts had failed to remedy, whether from weakness, partiality, corruption, or jury timidity, and especially when the powerful barons defied the courts. the chancery also sought to address causes which were impeded in their regular course, which often involved assaults, batteries, and forcible dispossessions. disputes within the royal household were administered by the king's steward. he received and determined complaints about acts or breaches of the peace within twelve miles around the king's person or "verge". he was assisted by the marshall in the "court of the hall" and by the clerk of the market when imposing fines for trading regulation violations in the "court of the market". ecclesiastical courts were successful in their competition with the secular courts for jurisdiction over testamentary matters [concerning wills] and intestate succession [no will] to chattels. there were local courts of the vill, borough, manor, hundred, county, sheriff, escheator, and royal bailiff, with overlapping jurisdictions. the county court in its full session, that is, as it attended the itinerant justices on their visitation, contained the archbishops, bishops, priors, earls, barons, knights, and freeholders, and from each township four men and the reeve, and from each borough twelve burgesses. it was still the folkmote, the general assembly of the people. in 1293, suitors who could not spend 40s. a year within their county were not required to attend their county court. the most common plea in the hundred court was trespass. it also heard issues concerning services arising out of land, detention of chattels, small debts, wounding or maiming of animals, and personal assaults and brawls not amounting to felony. it met every three weeks. the sheriff held his turn twice a year and viewed frankpledge once a year. in chancery, the court of the chancellor, if there is a case with no remedy specified in the law, that is similar to a situation for which there is a writ, then a new writ may be made for that case. this was called "trespass on the case". this covered indirect as well as direct contact with a person, land, or chattels. an example is that trespasss would not apply to a boat whose rope attaching it to land was cut because the trespass did not have contact with the boat. only the rope would be the result of the trespass. trespass on the case would include the boat. the two chancery justices were the lord chancellor and the master of the rolls. when edward i came to the throne, over half of the approximately 600 hundred courts had gone under the jurisdiction of a private lord owing to royal charter, prescriptive right, and usurpation. the sheriff's powers in these hundreds varied. in some, the sheriff had no right of entry. so edward i created the writ of quo warranto [by what right], by which all landholders exercising manor or franchise jurisdictions must bring their ancestors' charters before a traveling justice for the common pleas for examination and interpretation as to whether they had a charter or were going beyond their charters and infringing upon the jurisdiction of the royal court. as a result, many manor courts were confined to manorial matters and could no longer view frankpledge or hear criminal cases, which were reserved for the royal courts. in the manor courts which retained criminal jurisdiction, there was a reassertion of the obligation to have present a royal coroner, whose duty it was to see that royal rights were not infringed and that the goods of felons were given to the crown and not kept by the lords. some who could not produce a charter lost it; but later, uninterrupted use of a jursdiction since 1189 sufficed to retain that jurisdiction. in the manor courts, actions of debt, detinue, and covenant were frequent. sometimes there are questions of a breach of warranty of title in agreements of sale of land. accusations of defamation were frequent; this offense could not be taken to the king's court, but it had been recognized as an offense in the anglo-saxon laws. in some cases, the damages caused are specifically stated. for instance, defamation of a lord's grain would cause other purchasers to forbear buying it. there are frequent cases of ordinary thefts, trespasses, and assaults. the courts did rough but substantial justice without distinction between concepts such as tort and contract. in fact, the action of covenant was the only form of agreement enforceable at common law. it required a writing under seal and awarded damages. manor court law was not technical, but elastic, and remedies could include injunctions, salary attachment, and performance of acts. the steward holding the manor court was often a lawyer. some pleas in the manors of the abbey of bec were: 1. -hugh le pee in mercy (fine, 12d.) for concealing a sheep for half a year. pledges, simon of newmere, john of senholt 2. -william ketelburn in mercy (fine, 13s.4d.) for divers trespasses. pledge, henry ketelburn. 3. -hugh derwin for pasture, 6d. richard hulle for divers trespasses, 12d. henry stanhard for pasture, 6d. 4. -william derwin for a trespass, 6d.; pledge, william sperling. 5. -hugh hall gives the lord 12d. that he may have the judgment of the court as to a tenement and two acres of land, which he demands as of right, so he says. and it being asserted that the said land is not free[hold] let the court say its say. and the court says that the tenement and one of the two acres are of servile condition and that the other acre is of free condition. the case is reserved for the lord's presence. pledge, john brian. 6. -john palmer is put in seisin of his father's tenement and -gives the lord 53s.4d. as entry money. 7. -william ketelburn gives the lord 6s.8d. that he may be removed from the office of reeve. pledge, robert serjeant. 8. -william frith for subtraction of work, 6d. john reginald -for the same, 6d. john of senholt, 12d. william ketelburn, 12d. 9. -for the common fine to be paid on s. andrew's day, 100s. 10. it is presented by the chief pledges that godfrey serjeant has made default; also that john le pee has unlawfully thrown up a bank; therefore let it be set to rights. 11. robert smith is put in seisin of his father's tenement and gives the lord four pounds for entry money. pledge, robert serjeant. 12. william ketelburn for a trespass, 13s.4d. 13. william fleming gives four pounds for leave to contract [marriage] with widow susan. pledge, richard serjeant. 14. john mabely gives the lord 3s. to have the judgment of twelve men as to certain land whereof noah deforces him; pledges, richard smith, ralph bernard. the said jurors say that noah the fat has right; therefore etc. 15. agnes stampelove gives the lord 2s. for leave to come and go in the vill but to dwell outside the lord's land. pledge, richard smith. 16. godfrey tailor the younger for a trespass, 2s. 17. whereas godfrey tailor the younger has demanded against noah a farthing land, now the action is compromised in manner following: godfrey for himself and his heirs remises to the said noah and his heirs all right and claim which he has or can have in the said farthing land by reason of the gift made by his grandfather john tailor. 18. agnes mabely is put in seisin of a farthing land which her mother held, and gives the lord 33s.4d. for entry money. pledges, noah, william askil. 19. the full court declares that in case any woman shall have altogether quitted the lord's domain and shall marry a freeman, she may return and recover whatever right and claim she has in any land; but if she shall be joined to a serf, then she cannot do this during the serf's lifetime, but after his death she may. t 20. william alice's son is put in seisin of a bakehouse in the king's street, and shall keep up the house at his own cost and gives 12d. for entry money, and 10s. annual rent payable at three terms, viz. 3s.4d. at martinmas, 3s.4d. at lady day, 3s.4d. at christmas. pledges, adam clerk, john deboneir. 20. john son of alma demands a cottage which henry fleming holds and gives the lord 12d. for the oath and recognition of 12 men; pledge, richard jordan. the jurors say that henry fleming has the better right. 21. baldwin cobbler's son finds [as pledges] walter cobbler, roger of broadwater, robert linene, william frances, that notwithstanding his stay in london he will always make suit with his tithing and will at no time claim any liberty contrary to the lord's will and will come to the lord whenever the lord wills. 22. simon patrick gives the lord 12d. to have the judgment of the court as to a cottage of which the widow of geoffrey dogers deforces him; pledge, simon of strode. the said -jurors say that the said simon has the better right. and the said simon remises and quitclaims all his right to his sister maud and her husband john horin, [who] gives the lord 10s. for entry money; pledges, simon patrick, john talk. 23. hugh wiking for not making suit at the lord's mill, 12d. 24. it was presented that william derwin and john derwin (fine, 12d.) committed a trespass against agnes dene, and the cry was raised, therefore etc. 25. hugh churchyard contracted [marriage] without the lord's leave; [fine] 12d. 26. let juliana forester be distrained for her default, also william moor. 27. john kulbel in mercy (fine, 12d.) for not producing gregory miller, and he is commanded to produce him at the next court. 28. hugh andrew's son gives the lord 4s. for leave to marry; pledge, robert serjeant. 29. juliana forester gives the lord 12d. in order that for the future no occasion may be taken against her for neglect of suit of court. 30. john franklain is put in seisin of his father's tenement and gives the lord 20s. for entry; pledge, robert serjeant. 31. henry cross gives the lord 4s. for license to marry; pledge, robert serjeant. 32. isabella warin gives the lord 4s. for leave to give her daughter mary in marriage; pledge, john serjeant. 33. it is presented by the whole township that ralph le war has disseised the lord of a moiety of a hedge, whereas it had often been adjudged by award of the court that the said hedge belongs as to one moiety to the lord and as to the other to ralph, and the said ralph claims and takes to his use the whole to the lord's damage etc. also they say that the said ralph holds overcolkescroft, which land by right is the lord's. 34. it is presented by unanimous verdict of the whole court that if anyone marries a woman who has right in any land according to the custom of the manor and is seised thereof by the will of the lord, and the said woman surrenders her right and her seisin into the hands of the lord and her husband receives that right and seisin from the hands of the lord, in such case the heirs of the woman are for ever barred from the said land and the said right remains to the husband and his heirs. therefore let william wood, whose case falls under this rule, hold his land in manner aforesaid. and for the making of this inquest the said william gives the lord 6s.8d. 35. the tenements of lucy mill are to be seized into the lord's hands because of the adultery which she has committed and the bailiff is to answer for them. -the chief pledges present that cristina daughter of richard maleville has married at london without the lord's licence; therefore let the said richard be distrained. he has made fine with 12d. also that alice berde has done the same; therefore let her be distrained. also that robert fountain -has committed a trespass against william gery; therefore the said robert is in mercy; pledge, humfrey; fine, 6d. also that richard maleville has drawn blood from stephen gust; therefore he is in mercy; fine, 2s. 36. geoffrey coterel in mercy for a battery; fine, 12d.; pledge, adam serjeant. geoffrey coterel for trespass in the hay; fine, 6d.; pledge, alan reaper. hugh of senholt in mercy for trespass in the green wood; fine, 6d. 37. hugh wiking in mercy for delay in doing his works; fine, 6d. hugh churchyard for trespass in [cutting] thorns; fine, 6d. thomas gold in mercy for trespass in the wood; fine, 3d.; pledge, robert grinder. 38. william dun in mercy for subtraction of his works due in autumn; fine, 2s. avice isaac for the same, 6d.; hugh wiking -for the same, 6d.; agnes rede in mercy for her daughter's trespass in the corn [grain], 6d. 39. walter ash in mercy for not making suit to the lord's mill; fine, 6d. hugh pinel in mercy for diverting a watercourse to the nuisance of the neighbors; fine, 6d.; pledge, robert fresel. 40. john dun in mercy for carrying off corn [grain] in the autumn; pledge, adam white. alan reaper gives the lord 12d. on account of a sheep which was lost while in his custody. 41. adam white in mercy for bad mowing; fine, 6d. hugh harding in mercy for the same; fine, 6d. 42. the chief pledges present that henry blackstone (fine, 6d.), hugh churchyard (fine, 18d.), walter ash (fine, 6d.), henry of locksbarow (fine, 12d.), avice isaac (fine, 6d.), richard matthew (fine, 6d.), hugh wiking (fine,--), ralph dene (fine, 6d.), john palmer (fine, 12d.), john coterel (fine, 6d.), john moor (fine, 6d.), john cubbel (fine, 12d.), hugh andrew (fine, 6d.), philip chapman (fine, 6d.), john fellow (fine, 12d.), robert bailiff (fine, 6d.), alice squire (fine, 12d.), john grately (fine,--), richard hull (fine, 6d.), osbert reaper (fine, 6d.), and robert cross (fine, 6d.), have broken the assize of beer. also that henry of senholt, henry brown, hugh hayward, richard moor, juliana woodward, alice harding, peronel street, eleanor mead make default. also that walter ash (fine,--), john wiking (fine,--), john smart (fine,--), and henry coterel have married themselves without the lord's licence; therefore let them be distrained to do the will of the lord. 43. alan reaper for the trespass of his foal; fine, 6d. 44. philip chapman in mercy for refusing his gage to the lord's bailiff; fine, 3d. 45. william ash in mercy for trespass in the growing crop; fine, 6d. 46. john iremonger in mercy for contempt; fine, 6d. 47. the chief pledges present that william of ripley (fine, 6d.), walter smith (no goods), maud of pasmere (fine, 6d.), have received [strangers] contrary to the assize; therefore they are in mercy. 48. maud widow of reginald of challow has sufficiently proved that a certain sheep valued at 8d. is hers, and binds herself to restore it or its price in case it shall be demanded from her within year and day; pledges, john iremonger and john robertd; and she gives the lord 3d. for [his] custody [of it]. the court of hustings in london is empowered to award landlords their tenements for which rent or services are in arrears if the landlord could not distrain enough tenant possessions to cover the arrearages. wills are proven in the court of husting, the oldest court in london, which went back to the times of edward the confessor. one such proven will is: "tour (john de la) to robert his eldest son his capital messuage and wharf in the parish of berchingechurch near the land called 'berewardesland`. to agnes his wife his house called 'wyvelattestone', together with rents, reversions, etc. in the parish of s. dunstan towards the tower, for life; remainder to stephen his son. to peter and edmund his sons lands and rents in the parish of all hallows de berhyngechurch; remainders over in default of heirs. to agnes, wife of john le keu, fishmonger, a house situate in the same parish of berhyng, at a peppercorn [nominal] rent." the court of the mayor of london heard diverse cases, including disputes over goods, faulty or substandard goods, adulteration, selling food unfit for human consumption, enhancing the price of goods, using unlawful weighing beams, debts, theft, distraints, forgery, tavern brawling, bullying, and gambling. insulting or assaulting a city dignitary was a very serious crime; an attack on the mayor was once capitally punished. sacrilege, rape, and burglary were punished by death. apart from the death penalty, the punishment meted out the most was public exposure in the pillory, with some mark of ignominy slung round the neck. if the crime was selling bad food, it was burnt under the offender's nose. if it was sour wine, the offender was drenched in it. standing in the pillory for even one hour was very humiliating, and by the end of the day, it was known throughout the city. the offender's reputation was ruined. some men died in the pillory of shame and distress. a variation of the pillory was being dragged through the streets on a hurdle. prostitutes were carted through the streets in coarse rough cloth hoods, with penitential crosses in their hands. scolds were exposed in a "thewe" for women. in more serious cases, imprisonment for up to a year was added to the pillory. mutilation was rare, but there are cases of men losing their right hands for rescuing prisoners. the death penalty was usually by hanging. the following four london cases pertain to customs, bad grain, surgery, and apprenticeship, respectively. this is a lawsuit: "john le paumer was summoned to answer richer de refham, sheriff, in a plea that, whereas the defendant and his society of bermen [carriers] in the city were sworn not to carry any wine, by land or water, for the use of citizens or others, without the sheriff's mark, nor lead nor cause it to be led, whereby the sheriff might be defrauded of his customs, nevertheless he caused four casks of wine belonging to ralph le mazun of westminster to be carried from the city of westminster without the sheriff's mark, thus defrauding the latter of his customs in contempt of the king etc. the defendant acknowledged the trespass. judgment that he remain in the custody of the sheriff till he satisfy the king and the court for offense." this is a lawsuit: "walter atte belhaus, william atte belhous, robert le barber dwelling at ewelleshalle, john de lewes, gilbert le gras, john his son, roger le mortimer, william ballard atte hole, peter de sheperton, john brun and the wife of thomas the pelterer, stephen de haddeham, william de goryngg, margery de frydaiestrate, mariot, who dwells in the house of william de harwe, and william de hendone were attached to answer for forestalling all kinds of grain and exposing it, together with putrid grain, on the pavement, for sale by the bushel, through their men and women servants; and for buying their own grain from their own servants in deception of the people. the defendants denied that they were guilty and put themselves on their country. a jury of richard de hockeleye and others brought in a verdict of guilty, and the defendants were committed to prison till the next parliament." this is a lawsuit: "peter the surgeon acknowledged himself bound to ralph de mortimer, by richard atte hill his attorney, in the sum of 20s., payable at certain terms, the said ralph undertaking to give peter a letter of acquittance [release from a debt]. this recognizance arose out of a covenant between them with regard to the effecting of a cure. both were amerced for coming to an agreement out of court. a precept was issued to summon all the surgeons of the city for friday, that an inquiry might be made as to whether the above peter was fitted to enjoy the profession of a surgeon." this is a lawsuit: "thomas de kydemenstre, shoemaker, was summoned to answer william de beverlee, because he did not clothe, feed and instruct his apprentice thomas, william's son, but drove him away. the defendant said that the apprentice lent his master's goods to others and promised to restore them or their value, but went away against his wish; and he demanded a jury. subsequently, a jury of william de upton and others said the apprentice lent two pairs of shoes belonging to his master and was told to restore them, but, frightened by the beating which he received, ran away; further that the master did not feed and clothe his apprentice as he ought, being unable to do so, to the apprentice's damage 40d., but that he was now in a position to look after his apprentice. thereupon thomas de kydemenstre said he was willing to have the apprentice back and provide for him, and the father agreed. judgment that the master take back the apprentice and feed and instruct him, or that he repay to the father, the money paid to the latter, and that he pay the father the 40d. and be in mercy." a professional class of temporal attorneys whose business it is to appear on behalf of litigants is prominent in the nation. the idea of representation has spread outwards from a king who has so many affairs that he can not conduct them in person. men often appear to defend themselves in the king's court by attorney. but attorneys do not conduct prospective litigation for a client. attorneys are now drawn from the knightly class of landed gentlemen, instead of ecclesiastical orders. since it was forbidden for ecclesiastics to act as advocates in the secular courts, those who left the clergy to become advocates adopted a close-fitting cap to hide their tonsures, which came to be called a "coif". the great litigation of the nation is conducted by a small group of men, as is indicated by the earliest year books of case decisions compiled by attorneys and students attending the court. these attorneys sit in court and will sometimes intervene as amicus curiae [friends of the court]. parliament refers difficult points of law to them as well as to the justices. these reports became so authoritative that they could be cited in the courts as precedent. groups of attorneys from the countryside who are appearing in london courts during term-time and living in temporary lodgings start to form guild-like fellowships and buy property where they dine and reside together, called the inns of court. they begin to think of themselves as belonging to a profession, with a feeling of responsibility for training the novices who sat in court to learn court procedures and attorney techniques. they invited these students to supper at the inns of court for the purpose of arguing about the day's cases. the inns of court evolved a scheme of legal education, which was oral and used disputations. thus they became educational institutions as well as clubs for practicing attorneys. the call to the bar of an inn was in effect a degree. to be an attorney one had to be educated and certified at the inns of court. they practice law full time. some are employed by the king. justices come to be recruited from among those who had passed their lives practicing law in court, instead of from the ecclesiastical orders. all attorneys were brought under the control of the justices. there are two types of attorney: one attorney appears in the place of his principal, who does not appear. the appointment of this attorney is an unusual and a solemn thing, only to be allowed on special grounds and with the proper formalities. for instance, a poor person may not be able to afford to travel to attend the royal court in person. the other one is the pleader-attorney, who accompanies his client to court and advocates his position with his knowledge of the law and his persuasiveness. the king came to retain a number of attorneys, called his serjeants at law, to plead his causes for him. edward directed his justices to provide for every county attorneys from among the best, the most lawful, and the most teachable, so the king and people would be well served. thereby were attorneys brought under the control of the justices. in 1280, the city of london made regulations for the admission of both types of attorneys to practice before the civic courts, and for their due control. in 1292 the king directed the justices to provide a certain number of attorneys and apprentices to follow the court, who should have the exclusive right of practicing before it. this begins the process which will make the attorney for legal business an "officer of the court" which has appointed him. chapter 9 the times: 1348-1399 waves of the black death, named for the black spots on the body, swept over the nation. the black blotches were caused by extensive internal bleeding. the plague was carried in the blood of black rats and transmitted to humans by the bite of the rat flea, but this cause was then unknown. the first wave of this plague, in 1348, lasted for three years and desolated the nation by about one half the population in the towns and one third in the country. people tried to avoid the plague by flight. the agony and death of so many good people caused some to question their belief in god. also, it was hard to understand why priests who fled were less likely to die than priests who stayed with the dying to give them the last rites. legal and judicial, as well as other public business weere interrupted by theplague and ceased for two years. thus begins a long period of disorganization, unrest, and social instability. customary ways were so upset that authority and tradition were no longer automatically accepted. fields lay waste and sheep and cattle wandered over the countryside. local courts could seldom be held. some monasteries in need of cash sold annuities to be paid in the form of food, drink, clothing, and lodging during the annuitant's life, and sometimes that of his widow also. guilds and rich men made contributions to the poor and ships with provisions were sent to various parts of the country for the relief of starving people. in london, many tradesmen and artisans formed parish fraternities which united people of all social levels and women on almost equal terms with men, in communal devotion and mutual support, such as help in resolving disputes, moral guidance, money when needed, and burial and masses. farm workers were so rare that they were able to demand wages at double or triple the pre-plague rate. the pre-plague had been 4-6d. daily for masons, carpenters, plasterers, and tilers and 3d. for their laborers. these laborers could buy 12 cheap loaves, 3 gallons of ale, and a gallon of cheap wine or half a pair of shoes. prices did not go up nearly as much as wages. villeins relinquished their tenements, and deserted their manors, to get better wages elsewhere. they became nomadic, roaming from place to place, seeking day work for good wages where they could get it, and resorting to thievery on the highways or beggary where they could not. the robin hood legends were popular among them. in them, robin hood is pure outlaw and does not contribute money to the poor. nor does he court maid marion. villeins spread political songs among each other, such as: "to seek silver to the king, i my seed sold; wherefore my land lieth fallow and learneth to sleep. since they fetched my fair cattle in my fold; when i think of my old wealth, well nigh i weep. thus breedeth many beggars bold; and there wakeneth in the world dismay and woe, for as good is death anon as so for to toil." groups of armed men took lands, manors, goods, and women by force. the villeins agreed to assist each other in resisting by force their lords' efforts to return them to servitude. a statute of laborers passed in 1351 for wages to be set at the pre-plague rates was ineffectual. justices became afraid to administer the law. villeins, free peasants, and craftsmen joined together and learned to use the tactics of association and strikes against their employers. the office of justice of the peace was created for every county to deal with rioting and vagrants. this office required no education and was filled by volunteers. cooperation by officials of other counties was mandated to deal with fugitives from its justice. the black death visited again in 1361 and in 1369. the black death reduced the population from about 5 million to about 2 1/2 million. it was to rise to about 4 million by 1600. when there were attempts to enforce the legal servitude of the villeins, they spread rhymes of their condition and need to revolt. a secret league, called the "great society" linked the centers of intrigue. a high poll tax, graduated from 20s. to 12d., that was to be raised for a war with france, touched off a spontaneous riot all over the nation in 1381. this tax included people not taxed before, such as laborers, the village smith, and the village tiler. each area had its own specific grievances. there was no common political motive, except maladministration in general. in this peasants' revolt, mobs overran the counties around london. the upper classes fled to the woods. written records of the servitude of villeins were burned in their halls, which were also looted. title deeds of landlords were burned. rate rolls of general taxation were destroyed. prisoners were released from gaols. men connected with tax collection, law enforcement, attorneys, and alien merchants were beheaded. the chief justice was murdered while fleeing. the archbishop, who was a notoriously exploitive landlord, the chancellor, and the treasurer were murdered. severed heads were posted on london bridge. a mob took control of the king's empty bedchamber in the tower. the villeins demanded that service to a lord be by agreement instead of by servitude, a commutation of villein service for rents of a maximum of 4d. per acre yearly, abolition of a lord's right for their work on demand (e.g. just before a hail storm so only his crops were saved), and the right to hunt and fish. the sokemen protested having to use the lord's mill and having to attend his court. the revolt was suppressed and its leaders punished. the king issued proclamations forbidding unauthorized gatherings and ordering tenants of land to perform their customary services. the poll tax was dropped. for the future, the duty to deal with rioting and vagrants was given to royal justices, sheriffs, mayors, bailiffs, and constables as well as the justices of the peace. there was a high justice of the peace in each hundred and a petty constable in each parish. justices of the peace could swear in neighbors as unpaid special constables when disorder broke out. the sheriff was responsible for seeing that men of the lower classes were organized into groups of ten for police and surety purposes, and for holding of hundred and county courts, arresting suspects, guarding prisoners awaiting trial, carrying out the penalties adjudged by the courts, and collecting crown revenue through his bailiffs. royal writs were addressed to the sheriff. because many sheriffs had taken fines and ransoms for their own use, a term limit of one year was imposed. sheriffs, hundreders, and bailiffs had to have lands in the same counties or bailiwicks [so they could be held answerable to the king]. efforts were made to keep laborers at the plough and cart rather than learn a craft or entering and being educated by the church. the new colleges at the universities ceased to accept villeins as students. due to the shortage of labor, landlords' returns had decreased from about 20% to about 5%. but some found new methods of using land that were more profitable than the customary services of villeins who had holdings of land or the paid labor of practically free men who paid a money rent for land holdings. one method was to turn the land to sheep breeding. others leased their demesne land, which transferred the burden of getting laborers from the landlord to the lessee-tenant. the payment was called a "farm" and the tenant a "farmer". first, there were stock-and-land leases, in which both the land and everything required to cultivate it were let together. after 50 years, when the farmers had acquired assets, there were pure land leases. landlords preferred to lease their land at will instead of for a term of years to prevent the tenant from depleting the soil with a few richer crops during the last years of his tenancy. the commutation of labor services into a money payment developed into a general commutation of virtually all services. lords in need of money gladly sold manumissions to their villeins. the lord and lady of some manors now ate with their family and entertained guests in a private parlor [from french word 'to speak"] or great chamber, where they could converse and which had its own fireplace. the great chamber was usually at the fireplace end of the great hall, where there was a high table. the great hall had been too noisy for conversation and now was little used. there were also separate chambers or bed-sitting rooms for guests or members the family or household, in which one slept, received visitors, played games, and occasionally ate. some farmers achieved enough wealth to employ others as laborers on their farms. the laborers lived with their employer in his barn, sleeping on hay in the loft, or in mud huts outside the barn. the farmer's family lived at one end of the barn around an open fire. their possessions typically were: livestock, a chest, a trestle table, benches, stools, an iron or bronze cauldron and pots, brooms, wooden platters, wooden bowls, spoons, knives, wooden or leather jugs, a salt box, straw mattresses, wool blankets, linen towels, iron tools, and rush candles [used the pith of a rush reed for the wick]. those who could not afford rush candles could get a dim light by using a little grease in a shallow container, with a few twisted strands of linen thread afloat in it. the peasants ate dark bread and beans and drank water from springs. milk and cheese were a luxury for them. those who could not afford bread instead ate oat cakes made of pounded beans and bran, cheese, and cabbage. they also had leeks, onions, and peas as vegetables. some farmers could afford to have a wooden four-posted bedstead, hens, geese, pigs, a couple of cows, a couple of sheep, or two-plough oxen. july was the month when the divide between rich and poor became most apparent. the rich could survive on the contents of their barns, but the poor tried to survive by grinding up the coarsest of wheat bran and shriveled peas and beans to make some sort of bread. grain and bread prices soared during july. farming still occupied the vast majority of the population. town inhabitants and university students went into the fields to help with the harvest in the summer. parliament was suspended during the harvest. town people had more wealth than country people. most townspeople slept in nightgowns and nightcaps in beds with mattresses, blankets, linen sheets, and pillows. beds were made every morning. bathing was by sponging hot water from a basin over the body, sometimes with herbs in it, rinsing with a splash of warm water, and drying off with a towel. tubs used only for baths came into use. there were drapery rugs hung around beds, handheld mirrors of glass, and salt cellars. the first meal of the day was a light breakfast, which broke the fast that had lasted the night. meals were often prepared according to recipes from cook books which involved several preparation procedures using flour, eggs, sugar, cheese, and grated bread, rather than just simple seasoning. menus were put together with foods that tasted well together and served on plates in several courses. children's sweets included gingerbread and peppermint drops. sheffield cutlery was world famous. table manners included not making sounds when eating, not playing with one's spoon or knife, not placing one's elbows on the table, keeping one's mouth clean with a napkin, and not being boisterous. there were courtesies such as saying "good morning" when meeting someone and not pointing one's finger at another person. king richard ii invented the handkerchief for sneezing and blowing one's nose. there were books on etiquette. cats were the object of superstition, but there was an ancient and honorable order of the men who stroke cats. new burgesses were recruited locally, usually from within a 20 mile radius of town. most of the freemen of the larger boroughs, like canterbury and london, came from smaller boroughs. an incoming burgess was required to buy his right to trade either by way of a seven year apprenticeship or by payment of an entry fee. to qualify, he needed both a skill and social respectability. towns started acquiring from the king the right to vacant sites and other waste places, which previously was the lord's right. the perpetuality of towns was recognized by statutes of 1391, which compared town-held property to church-held property. the right of london to pass ordinances was confirmed by charter. some towns had a town clerk, who was chief of full-time salaried officers. there was a guildhall to maintain, a weigh-house, prison, and other public buildings, municipal water supplies, wharves, cranes, quays, wash-houses, and public lavatories. after the experience of the black death, some sanitary measures were taken. the notorious offenders in matters of public hygiene in the towns, such as the butchers, the fishmongers, and the leather tanners were assigned specific localities where their trades would do least harm. the smiths and potters were excluded from the more densely populated areas because they were fire risks. in the town of salisbury, there was butcher row, ox row, fish row, ironmongers' row, wheelwrights' row, smiths' row, pot row, silver street, cheese market, and wool market. for water, most communities depended on rivers that ran near by or on public wells that were dug to reach the water underground. some towns had water public water supply systems. fresh water was brought into the town from a spring or pond above the town by wood or lead pipes or open conduits. sometimes tree trunks were hollowed out and tapered at the ends to fit into the funnel-shaped end of another. but they leaked a lot. in london, a conduit piped water underground to a lead tank, from which it was delivered to the public by means of pipes and brass taps in the stone framework. this was london's chief water supply. water carriers carried water in wooden devices on their backs to houses. the paving and proper drainage of the streets became a town concern. building contracts began specifying the provision of adequate cesspits for the privies at town houses, whether the latrines were built into the house or as an outhouse. also, in the better houses, there grew a practice of carting human and animal fecal matter at night to dung heaps outside the city walls. there was one public latrine in each ward and about twelve dung carts for the whole city. country manor houses had latrines on the ground floor and/or the basement level. in london, the goldsmiths, merchant taylors [tailors], skinners, and girdlers bought royal charters, which recognized their power of self-government as a company and their power to enforce their standards, perhaps throughout the country. the goldsmiths, the mercers, and the saddlers became in 1394 the first guilds to receive charters of incorporation, which gave them perpetual existence. as such they could hold land in "mortmain" [dead hand], thus depriving the king of rights that came to him on the death of a tenant-in-chief. they were authorized to bestow livery on their members and were called livery companies. the liverymen [freemen] of the trading companies elected london's representatives to parliament. in all towns, the organization of craft associations spread rapidly downwards through the trades. these associations sought self-government. craft guilds were gaining much power relative to the old merchant guilds in governing the towns. the greater crafts such as the fishmongers, skinners, and the corders (made rope, canvas, and pitch) organized and ultimately were recognized by town authorities as self-governing craft guilds. the building trade guilds such as the tilers, carpenters, masons, and joiners, became important. masons were still itinerant, going to sites of churches, public buildings, or commanded by the king to work on castles. the guild was not necessarily associated with a specific product. for instance, a saddle and bridle were the result of work of four crafts: joiner (woodworker), painter, saddler (leather), and lorimer (metal trappings). in london in 1392 craft guilds included: baker, fishmonger (cut up and sold fish), fruitier, brewer, butcher, bird dealer, cook, apothecary (sold potions he had ground up), cutler (made knives and spoons), barber, tailor, shoemaker, glover (made gloves), skinner (sold furs), girdler (made girdles of cloth to wear around one's waist), pouchmaker, armorer, sheathmaker, weaver, fuller, painter, carpenter, joiner (woodworker who finished interior woodwork such as doors and made furniture), tiler, mason (cut stone for buildings), smith (made metal tools for stonemasons and builders), tallow chandler (made candles and sometimes soap from the fat and grease the housewife supplied), wax chandler (made candles), stirrup maker, spurrier (made spurs), and hosteler (innkeeper). however, the merchant guilds of the goldsmiths, vintners (sold wine), mercers (sold cloth), grocers, and drapers (finished and sold english cloth) were still strong. it was a long custom in london that freemen in one company could practice the trade of another company. there were paint mills and saw mills replacing human labor. there were apothecary shops and women surgeons. women who earned their own living by spinning were called "spinsters". some prices in london were: a hen pastry 5d., a capon pastry 8d., a roast pheasant 13d., a roast heron 18d., roast goose 7d., a hen 4d., a capon 6d., three roast thrushes 2d., ten larks 3d., ten finches 1d, and ten cooked eggs 1d. many of the guilds bought sites on which they built a chapel, which was later used as a secular meeting place. the guild officers commonly included an alderman, stewards, a dean, and a clerk, who were elected. the guild officers sat as a guild court to determine discipline for offenses such as false weights or measures or false workmanship or work and decided trade disputes. the brethren in guild fraternity were classified as masters, journeymen, or apprentices. they were expected to contribute to the support of the sick and impoverished in their fellowship. their code required social action such as ostracizing a man of the craft who was living in adultery until he mended his ways. the rules of the company of glovers were: 1. -none but a freeman of the city shall make or sell gloves. 2. -no glover may be admitted to the freedom of the city unless with the assent of the wardens of the trade. 3. -no one shall entice away the servant of another. 4. -if a servant in the trade makes away with his master's chattels to the value of 12d., the wardens shall make good the loss; and if the servant refuses to be judged by the wardens, he shall be taken before the mayor and aldermen. 5. -no one may sell his goods by candlelight. 6. -any false work found shall be taken before the mayor and aldermen by the wardens. 7. -all things touching the trade within the city between those who are not freemen shall be forfeited. 8. -journeymen shall be paid their present rate of wages. 9. -persons who entice away journeymen glovers to make gloves in their own houses shall be brought before the mayor and aldermen. 10. any one of the trade who refuses to obey these regulations shall be brought before the mayor and aldermen. cordwainers [workers in soft cordovan leather from spain, especially shoes] of good repute petitioned the city of london in 1375 for ordinances on their trade as follows: "to the mayor and aldermen of the city of london pray the good folks of the trade of cordwainers of the same city, that it may please you to grant unto them the articles that follow, for the profit of the common people; that so, what is good and right may be done unto all manner of folks, for saving the honor of the city and lawfully governing the said trade. in the first place that if any one of the trade shall sell to any person shoes of bazen [sheepskin tanned in oak or larch-bark] as being cordwain, or of calf-leather for ox-leather, in deceit of the common people, and to the scandal of the trade, he shall pay to the chamber of the guildhall, the first time that he shall be convicted thereof, forty pence; the second time, 7s. half a mark; and the third time the same, and further, at the discretion of the mayor and aldermen. also that no one of the trade shall keep house within the franchise if he be not free [invested with the rights or privileges] of the city and one knowing his trade, and that no one shall be admitted to the freedom without the presence of the wardens of the trade bearing witness to his standing, on the pain aforesaid. also if any one of the trade shall be found offending touching the trade, or rebellious against the wardens thereof, such person shall not make complaint to any one of another trade, by reason of the discord or dissension that may have arisen between them; but he shall be ruled by the good folks of his own trade. and if he shall differ from them as acting against right, then let the offense be adjudged upon before the mayor and aldermen; and if he be found rebellious against the ordinance, let him pay to the chamber the sum above mentioned. also that no one of the trade shall entice or purloin the servant of another from the service of his master by paying him more than is ordained by the trade, on the pain aforesaid. also that no one shall carry out of his house any wares connected with his trade for sale in market or elsewhere except only at a certain place situated between soperesland and the conduit; and that at a certain time of the day, that is to say, between prime [the first hour of the day] and noon. and that no shoes shall exceed the measure of seven inches, so that the wares may be surveyed by the good folks of the trade, because of the deceit upon the common people that might ensue and the scandal of the trade, on the pain aforesaid. also that no one shall expose his wares openly for sale in market on sundays at any place, but only within his own dwelling to serve the common people, on the pain aforesaid. also that if any one sells old shoes, he shall not mix new shoes among the old in deceit of the common people and to the scandal of the trade, on the pain aforesaid." smithfield was a field outside the city gates at which horses were sold and raced. in 1372, the horse dealers and drovers petitioned for a tax on animals sold there to pay for cleaning the field. the city ordinance reads as follows: "on wednesday next after the feast of st. margaret the virgin came reputable men, the horse dealers and drovers, and delivered unto the mayor and aldermen a certain petition in these words: 'to the mayor, recorder, and aldermen show the dealers of smithfield, that is to say, the coursers and drovers, that for the amendment of the said field they have granted and assented among them that for the term of three years next ensuing after the date of this petition for every horse sold in the said field there shall be paid one penny, for every ox and cow one halfpenny, for every eight sheep one penny, and for every swine one penny by the seller and the same by the purchaser who buys the same for resale.` afterwards, on the eleventh day of august in the same year, adam fernham, keeper of the gaol at newgate, hugh, averelle, bailiff of smithfield, and william godhewe, weaver, were chosen and sworn faithfully to collect and receive the said pennies in form aforesaid and to clean the field of smithfield from time to time during such term of three years when necessary." many london houses were being made from stone and timber and even brick and timber, instead of just timber and mud. however, chimneys were still a luxury of the rich. they were made of stone, tile, or plaster. there were windows of glass and a guild of glaziers was chartered by the king. a typical merchant's house had a cellar; a ground floor with a shop and storage space; a first floor with a parlor to receive guests, a spacious hall for dining, and perhaps a kitchen; and at the top, a large family bedroom and a servant's room. stairwells between floors had narrow and winding steps. many single-roomed houses added a second-floor room for sleeping, which was approached by a wooden or stone staircase from the outside. their goods were displayed on a booth outside the door of the house or hung in the windows. they were stored at night in the cellar. over the booths swung huge signs, which had to be nine feet above street level to allow a man on horseback to ride underneath. there were no sidewalks. street repair work for wages was supervised by a stone master. the streets sloped down from the middle so that the filth of the streets would run down the sides of the road. there were many wood chips in the streets due to cutting up of firewood before taking it indoors. people often threw the rubbish from their houses onto the street although they were supposed to cart it outside the city walls and to clean the frontage of their houses once a week. dustmen scavenged through the rubbish on the streets. pigs and geese were no longer allowed to run at large in the streets, but had to be fed at home. there were other city rules on building, public order, the use of fountains, precautions against fire, trading rights in various districts, closing time of taverns, and when refuse could be thrown into the streets, e.g. nighttime. aldermen were constantly making rounds to test measures and weights, wine cups, the height of tavern signs, and the mesh of the fishing nets, which had to be at least two inches wide. they saw that the taverns were shut when curfew was rung and arrested anyone on the street after curfew who had a weapon, for no one with a sword was allowed on the streets unless he was some great lord or other substantial person of good reputation. wards provided citizens to guard the gates in their respective neighborhood and keep its key. the city was so dense that nuisance was a common action brought in court, for instance, vegetable vendors near a church obstructing passageway on the street or plumbers melting their solder with a lower than usual shaft of the furnace so smoke was inhaled by people nearby. crime in london was rare. murder, burglary, highway robbery, and gross theft were punishable by hanging. forgery and fraud, were punishable by the placement in the pillory or stocks or by imprisonment. perjury was punished by confession from a high stool for the first offense, and the pillory for the second. slander and telling lies were punished by the pillory and wearing a whetstone around one's neck. there was an ordinance passed against prostitutes in 1351. london as well as other port towns had not only prostitutes, but syphilis. prominent londoners sought to elevate their social position by having their family marry into rural landholding families of position. for poor boys with talent, the main routes for advancement were the church, the law, and positions in great households. many master freemasons, who carved freestone or finely grained sandstone and limestone artistically with mallet and chisel, left the country for better wages after their wages were fixed by statute. the curvilinear gothic style of architecture was replaced by the perpendicular style, which was simpler and cheaper to build. church steeples now had clocks on them with dials and hands to supplement the church bell ringing on the hour. alabaster was often used for sepulchral monuments instead of metal or stone. with it, closer portraiture could be achieved. in the 1300s and 1400s the london population suffered from tuberculosis, typhus, influenza, leprosy, dysentery, smallpox, diphtheria, measles, heart disease, fevers, coughs, cramps, catarrhs and cataracts, scabs, boils, tumors, and "burning agues". there were also many deaths by fires, burning by candles near straw beds when drunk, falling downstairs when drunk, and drowning in the river or wells. children were often crushed by carts, trampled by horses, or mauled by pigs. towns recognized surgery as a livelihood subject to admission and oath to serve the social good. master surgeons were admitted to practice in 1369 in london in full husting before the mayor and the aldermen and swore to: [1] faithfully serve the people in undertaking their cures, [2] take reasonably from them, [3] faithfully follow their calling, [4] present to the said mayor and aldermen the defaults of others undertaking, so often as should be necessary, [5] to be ready, at all times when they should be warned, to attend the maimed or wounded and others, [6] to give truthful information to the officers of the city as to such maimed, wounded, or others whether they be in peril of death or not, and [7] to faithfully do all other things touching their calling. some young girls of good families were boarded at nunneries to be taught there. some upper class widows retired there. only women were allowed to be present at a birth, at which they spread the knowledge of midwifery. as usual, many women died giving birth. various ways to prevent pregnancy were tried. it was believed that a baby grew from a seed of the father planted in the woman's body. infant mortality was especially high in boroughs and burgess family lines usually died out. a three-generation family span was exceptional in the towns, despite family wealth. after the plague, gentlemen no longer had their children learn to speak norman. the grammar schools taught in english instead of norman as of 1362. bishops began to preach in english. english became the official language of parliament, in 1363, and in the courts, replacing norman and latin. the requirements of elementary and higher studies were adjusted in 1393 and began the public school system. william of wykeham's school, st. mary college of winchester in oxford was the prototype. the curriculum was civil law, canon law, medicine, with astronomical instruments that students made, theology, and the arts. the arts textbooks were still grammar, logic, donatus, and aristotle. many laymen were literate, for instance country gentry, merchants, and craftsmen. laymen instead of clerics were now appointed to the great offices of state. a will in 1389 in which a wealthy citizen arranges for one son to become an attorney and the other a merchant: "will of william de tonge, citizen of london: one hundred marks each to my two sons. and i will that my said two sons shall live upon the profits of the money bequeathed to them above until the age of twenty years. and if my said two sons be well learned in grammar and adorned with good manners, which shall be known at the end of twenty years, and the elder son wish to practice common law, and if it is known that he would spend his time well in that faculty, i will that over and above the profit of the said one hundred marks he shall have yearly from my rents for the term of seven years five marks. and if he should waste his time aforesaid, or if he should marry foolishly and unsuitably, i will that he receive nothing more of the said five marks. and if younger son wishes to attend the university of oxford or to establish himself well in the mystery of a merchant after the age of twenty years, and [if] there be knowledge of his praiseworthy progress in his faculty or his carefulness in trading ... i will that he shall receive five marks yearly in the manner described above for his maintenance, over and above the profit of the said one hundred marks to him bequeathed, for the space of seven years; and if he behave himself otherwise, i will that thereupon he be excluded from the said five marks. and in case the said bequest of 200 marks to him and his brother shall be annulled so that he shall have nothing therefrom ... then the said 200 marks shall be spent upon all the yearly chaplains who can be had to celebrate divine service in the church of all hallows for my soul." most great lords were literate. many stories described good men, who set an example to be followed, and bad men, whose habits were to be avoided. stories were written about pilgrimage vacations of ordinary people to religious sites in england. will langland's poem "the vision of william concerning piers plowman" portrays a pilgrimage of common people to the shrine of truth led by a virtuous laborer. mystics wrote practical advice with transcendental teaching, for instance "scale of perfection" attributed to walter hilton and "cloud of unknowing". richard rolle wrote about spiritual matters, probably the "prick of conscience". richard de bury wrote "philobiblon" about book lovers. jean froissart wrote the "chronicles" on knights. courtly ideals were expressed in "sir gawaine and the grene knyght", wherein the adventures of the hero, an arthur knight, are allegorical in the struggle against the world, the flesh, and the devil (1370). "pearl" eulogized all that is pure and innocent on the event of the death of a two year old child. marco polo's book of discoveries on his journey to china was known. geoffrey chaucer was a squire and diplomat of the king. his "tales of the canterbury pilgrims" portrayed characters of every social class, including the knight with his squire, abbot, prioress, nun, priest, monk, friar, poor parson of the country, summoner (who enforced the jurisdiction and levied the dues of the church courts), pardoner (sold pardons from the pope), scholar, attorney, doctor, merchant, sailor, franklin, yeoman, haberdasher, tapestrymaker, ploughman, cook, weaver, dyer, upholsterer, miller, reeve, carpenter. there were chaucer stories about a beautiful and virtuous wife disliked by her mother-in-law, the difficulty of marriage between people of different religions, the hatred of a poor person by his brother and his neighbor, rich merchants who visited other kingdoms, the importance of a man himself following the rules he sets for other people's behavior, the spite of a man for a woman who rejected him, the relative lack of enthusiasm of a wife for sex as compared to her husband, a mother giving up her own comfort for that of her child, the revenge killing of a murderer by the dead man's friends, the joy of seeing a loved one after years of separation, that life is more sad than happy, that lost money can be retrieved, but time lost is lost forever. other stories in the canterbury tales were about two men who did not remain friends after they fell in love with the same woman, about a child who preferred to learn from an older child than from his schoolteacher, about a wife who convinced her husband not to avenge her beating for the sake of peace, about a man who woke up from bad dreams full of fear, about a man wanting to marry a beautiful woman but later realizing a plain wife would not be pursued by other men, about a man who drank so much wine that he lost his mental and physical powers, about a woman who married for money instead of love, about a man who said something in frustration which he didn't mean, about a person brought up in poverty who endured adversity better than one brought up in wealth, about a wife who was loving and wise, about a good marriage being more valuable than money, about a virgin who committed suicide rather than be raped, about a wife persuaded to adultery by a man who said he would otherwise kill himself, about three men who found a pile of gold and murdered each other to take it all, about an angry man who wanted to kill, about a malicious man who had joy in seeing other men in trouble and misfortune, about a man whose face turned red in shame, about a wife expecting to have half of what her husband owned. political songs and poems were written about the evil times of king edward ii, the military triumphs of king edward iii, and the complaints of the poor against their oppressors, such as "song of the husbandman". john gower wrote moralizing poems on the villein's revolt, the sins of the clergy and attorneys, and the bad rule of king richard ii, who in 1377 succeeded edward iii. robin hood ballads were popular. the minstrel, who was a honorable person, replaced the troubadour of older times. there were many colleges at oxford and cambridge due to the prohibition of gifts to the church. laymen instead of ecclesiastics were appointed as chancellor. the masters at oxford got rid of ecclesiastical supervision by a bishop and archdeacon by 1368. one could be admitted as a student at age thirteen. the rate of maintenance for a student was 10d. weekly. a bachelor of arts degree was granted after four years of study and an oral exam. required reading in 1340 for the bachelor's degree was the new logic of aristotle ("prior and posterior analytics" e.g. on syllogistic logic and deduction, the "topics", or the "sophistical refutations", e.g. logical fallacies such as from 'all a are b' to 'all b are a'), and a selection from these aristotle works on physics: "of heaven and earth", "on the soul", "of meteors", "of birth and decay", or "of feeling and what is felt" with "of memory and recollection" and "of sleep and waking", or "of the movement of animals" with "of minor points in natural history". a master of arts degree could be awarded after three more years of study and teaching. a doctorate degrees in theology required ten more years of study. a doctorate in civil or canon law required eight more years. a man with a degree in canon law who wanted to practice in a certain bishop's court had to first satisfy this bishop of his competence. another source of legal learning was in london, where the guilds gave rise to the inns of court. they used the register of writs, the case law of the year books, and disputation to teach their students. for a doctorate in medicine from oxford or cambridge, five more years plus two years of practice were required. surgery was not taught because it was considered manual labor, and there was some feeling that it was a sacrilege and dishonorable. urinalysis and pulse beat were used for diagnosis. epilepsy and apoplexy were understood as spasms inside the head. it was known what substances served as laxatives and diuretics. teeth were extracted, eye cataracts were removed with a silver needle, and skin from the arm was grafted onto a mutilated face. englishmen who had collected books on philosophy, medicine, astronomy, and history and literature books from the continent gave their collections to the universities, which started their libraries. paper supplemented parchment, so there were more books. england was still an agricultural rather than a manufacturing country. imported were cloth, silks, linen, velvets, furs, glass, wines, candles, millstones, amber, iron, and mercury. exported were wool, leather, lead, tin, and alabaster for sculpturing. merchant adventurers came to manufacture cloth good enough for export and began to buy up raw wool in such quantity that its export declined. they took their cloth abroad to sell, personally or by agents. an oxford theologian and preacher, john wyclif, voiced the popular resentment of the materialism of the church, benefit of clergy, immorality of priests, and the selling of indulgences and pardons. encouraged by the king, he argued against the supremacy of the papal law over the king's courts and against payments to the papacy. he opined that the church had no power to excommunicate. the friars had become mere beggars and the church was still wealthy. he proposed that all goods should be held in common by the righteous and that the church should hold no property but be entirely spiritual. he believed that people should rely on their individual consciences. he thought that the bible should be available to people who could read english so that the people could have a direct access to god without priests or the pope. towards this end, he translated it from latin into english in 1384. his preachers spread his views throughout the country. the church then possessed about one-third of the land of the nation. parliament met about twice a year and lasted from two weeks to several months. there was a well-defined group of about fifty barons and a few spiritual peers who were always summoned to parliament and who composed a house of lords. "peer" now meant a member of the house of lords. all peers had the right to approach the king with advice. the baron peers reasoned that the custom of regular attendance was a right that should be inherited by the eldest son, or by a female heir, if there were no male heirs. however, the theory of nobility by blood as conveying political privilege had no legal recognition. no female could attend parliament; the husband of a baroness attended parliament in her stead. edward iii and richard ii created new peers with various titles of dignity, such as duke and marquess, which were above barons and earls. the dukes and marquesses were identified with a territorial designation such as an english county or county town. whenever a parliament was assembled the commons were present. the commons was composed of representatives from 100 boroughs and 37 counties. each new parliament required an election of representatives. the members of the commons were generally the most prominent and powerful economic and political figures of the county and were repeatedly reelected. the electors were usually influenced by the sheriff or a powerful lord who suggested suitable men. the wealthy merchants typically represented the boroughs and paid much of the taxes. under edward iii, the commons took a leading part in the granting of taxes and the presentation of petitions and became a permanent and distinct body, the house of commons, with a spokesman or "speaker", chosen by the crown, and a clerk. the speaker came to be an intermediary between the commons and the king and between the commons and the lords. a clerk of parliament registered its acts and sat with the lords. a clerk of the crown superintended the issue of writs and the receipt of the returns and attested the signature of the king on statutes. it became a regular practice for the chancellor to open parliament with an opportunity to present petitions after his opening speech. the king then referred them to certain peers and justices, who decided to which court, or parliament, they should be sent. during the 1300s, the number of barons going to parliament gradually decreased. at the 1376 parliament, ("the good parliament") the commons, which formerly had only consented to taxes, took political action by complaining that the king's councilors had grown rich by war profiteering at the cost of impoverishing the nation and the people were too poor to endure any more taxation for the war and held a hearing on financial malfeasance and dishonesty of two ministers. the chamberlain had extorted enormous sums, had intercepted fines meant for the king's treasury, and had sold a castle to the enemy. the steward had bought debts of the king's. the house of lords, the high court of parliament, found the charges proved and dismissed them permanently from office. this established the constitutional means for impeachment and prosecution by the commons and removal by the house of lords of ministers. by this process, there could be no royal intimidation, as there could be in the ordinary courts. the commons demanded that its members be elected by county citizens rather than appointed by the sheriff. the roles of parliament and the king's council are starting to differentiate into legislative and executive, respectively. the legislative function is lawmaking, and the executive is regulation-making that refines and effectuates the laws of parliament. but the legislative, executive, and judicial authorities have not as yet become so completely separated that they cannot on occasion work together. sheriffs dealt directly with the king instead of through an earl. from 1150 to 1400, resistance was an ordinary remedy for political disagreements. if a popular leader raised his standard in a popular cause, an irregular army could be assembled in a day. (there was no regular army, since england was protected by the sea from invasion.) so misgovernment by a king would be quickly restrained. society recovered quickly from conflict and civil war because the national wealth consisted chiefly in flocks and herds and in the simple buildings inhabited by the people. in a week after armed resistance, the agricultural worker was driving his team. there was little furniture, stock of shops, manufactured goods, or machinery that could be destroyed. to support a war with france, the staple was reinstated by statute of 1353 after an experiment without it in which profits of a staple went to staples outside the nation. wool exports were inspected for quality and taxed through his officials only at the designated staple ports. these officials included collectors, controllers, searchers [inspectors], surveyors, clerks, weighers, and crane-keepers. wool, woolfells, leather, and lead sold for export had to go through the staple town. the penalty was forfeiture of lands, tenements, goods, and chattel. the mayor and constables of the staple were elected annually by the native and foreign merchants of the place. the mayor gave validity to contracts for a set fee, by seal of his office. he and the constables had jurisdiction over all persons and things touching the staple, which was regulated by the law merchant in all matters of contract, covenant, debt, and felonies against foreign merchants. a hue and cry was required to be raised and followed for anyone taking a cart of merchandise or slaying a merchant, denizen [resident alien] or alien, or the town would answer for the robbery and damage done. in 1363, calais, a continental town held by the english, became the staple town for lead, tin, cloth, and wool and was placed under a group of london capitalists: the merchants of the staple. all exports of these had to pass through calais, where customs tax was collected. the staple statute remained basically unchanged for the next 200 years. guns and cannon were common by 1372. in the 1300s and 1400s, the king relied on mercenaries hired directly or by contract with his great nobles for foreign wars. the king reimbursed the contractors with the profits of war, such as the ransoms paid by the families of rich prisoners. the fighting men supplemented their pay by plunder. featherbeds and blooded horses were favorite spoils of war brought back to england from the continent. as new techniques with footmen came into being, the footmen became the core of the army and the knightly abilities of the feudal tenants-in-chief became less valuable. many lords got men to fight with them by livery and maintenance employment agreements such as this one of 1374: "bordeaux, february 15. this indenture, made between our lord king john [of gaunt, of castile, etc.] of the one part and symkyn molyneux, esquire, of the other part, witnesses that the said symkyn is retained and will remain with our said lord for peace and for war for the term of his life, as follows: that is to say, the said symkyn shall be bound to serve our said lord as well in time of peace as of war in whatsoever parts it shall please our said lord, well and fitly arrayed. and he shall be boarded as well in time of peace as of war. and he shall take for his fees by the year, as well in time of peace as of war, ten marks sterling from the issues of the duchy of lancaster by the hands of the receiver there who now is or shall be in time to come, at the terms of easter and michaelmas by even portions yearly for the whole of his life. and, moreover, our lord has granted to him by the year in time of war five marks sterling by the hands of the treasurer of war for the time being. and his year of war shall begin the day when he shall move from his inn towards our said lord by letters which shall be sent to him thereof, and thenceforward he shall take wages coming and returning by reasonable daily [payments] and he shall have fitting freightage for him, his men, horses, and other harness within reason, and in respect of his war horses taken and lost in the service of our said lord, and also in respect to prisoners and other profits of war taken or gained by him or any of his men, the said our lord will do to him as to other squires of his rank." forecastles and stern castles on ships were lower and broader. underneath them were cabins. the english ship was still single masted with a single square sail. a fleet was formed with over 200 ships selected by the english admirals acting for the king at the ports. men were seized and pressed into service and criminals were pardoned from crimes to become sailors in the fleet, which was led by the king's ship. they used the superior longbow against the french sailor's crossbow. in 1372, the tower of london had four mounted fortress cannon and the port of dover had six. the war's disruption of shipping caused trade to decline. but the better policing of the narrow seas made piracy almost disappear. english merchants may carry their merchandise in foreign ships if there are no english ships available. anyone may ship or carry grain out of the nation, except to enemies, after paying duties. but the council may restrain this passage when necessary for the good of the nation. any merchant, privy or stranger, who was robbed of goods on the sea or lost his ship by tempest or other misfortune on the sea banks, his goods coming to shore could not be declared wreck, but were to be delivered to the merchant after he proves ownership in court by his marks on the goods or by good and lawful merchants. all stakes and obstacles set up in rivers impeding the passage of boats shall be removed. waterpower was replacing foot power in driving the mills where cloth was cleaned and fulled. a boundary dispute between two barons resulted in the first true survey map. nine cow pastures were divided by a boundary marked by a shield on a pole which the commission of true and sworn men had set up. king richard ii, an irresponsible sovereign, asserted an absolute supremacy of the king over parliament and declared certain statutes which he claimed to have been forced on him to be revoked. he interfered with county elections of knights to parliament by directing sheriffs to return certain named persons. he wanted to dispense altogether with parliament and instead have a committee of representatives. he claimed that the goods of his subjects were his own and illegally taxed the counties. there were many disputes as to who should be his ministers. high treason was extended to include making a riot and rumor, compassing or purposing to depose the king, revoking one's homage or liege to the king, or attempting to repeal a statute. when henry bolingbroke reported to parliament that another lord had cast doubt on the king's trustworthiness, a duel between them was arranged. but richard, probably fearing the gain of power of the lord who won, instead exiled the two lords. he took possession of the lancaster estates to which bolingbroke was heir and forbade this inheritance. this made all propertied men anxious and they united behind bolingbroke in taking up arms against richard. richard was not a warrior king and offered to resign the crown. the "merciless parliament" of 1388 swept out richard's friends. parliament deposed and imprisoned richard. it revoked the extensions to the definition of high treason. it elected bolingbroke, who claimed to be a descendant of henry iii, to be king henry iv. this action established clearly that royal decrees were subordinate to parliamentary statutes, that parliament was the ultimate legal arbiter of the realm, and that the consent of parliament was necessary in determining kingship. the house of commons became very powerful. it was responsible for the major part of legislation. it's members began to assert the privilege of free speech. that is, they wanted to discuss other matters than what was on the king's agenda and they opposed punishment for what they said unless it was treasonable. henry iv agreed to their request not to consider reports of proceedings unless they came to him through official channels. the law high treason was defined by statute in 1352 as levying war against the king, aiding the king's enemies, compassing or imagining the death of the king, queen, or their eldest son and heir, or violating the queen or the eldest unmarried daughter or the wife of the king's eldest son and heir; making or knowingly using counterfeits of the king's great or privy seal or coinage; or slaying the chancellor, treasurer, or any justice in the exercise of their duty. the penalty was forfeit of life and lands. petty treason was defined by statute and included a servant slaying his master, a wife her husband, or a man his lord, to whom was owed faith and obedience. no one shall tell false news or lies about prelates, dukes, earls, barons, and other nobles and great men or the chancellor, treasurer, a justice, clerk of the privy seal, steward of the king's house whereby debates and discords might arise between these lords or between the lords and the commons. cases shall be tried by the king's council, which included the chancellor, treasurer, and chief justices. preachers drawing crowds by ingenious sermons and inciting them to riot shall be arrested by sheriffs and tried by the ecclesiastical court. any stranger passing at night of whom any have suspicion shall be arrested and taken to the sheriff. no man shall ride with a spear, upon pain of forfeiting it. no servant of agriculture or laborer shall carry any sword or dagger, or else forfeit it, except in time of war in defense of the nation. he may carry bow and arrow [for practice] on sundays and holy days, when he should not play games such as tennis, football, or dice. no one may enter another's land and tenements by strong hand nor with a mob, upon pain of imprisonment and ransom at the king's will. charters, releases, obligations, quitclaim deeds and other deeds burnt or destroyed in uprisings shall be reissued without fee, after trial by the king and his council. manumissions, obligations, releases and other bonds and feoffments in land made by force, coercion or duress during mob uprisings are void. men who rape and women consenting after a rape shall lose their inheritance and dower and joint feoffments. the husbands, or father or next of kin of such women may sue the rapist by inquisition, but not by trial by combat. the penalty is loss of life and member. the statute of laborers of 1351 required all workers, from tailors to ploughmen, to work only at pre-plague wage rates and forced the vagrant peasant to work for anyone who claimed him or her. it also encouraged longer terms of employment as in the past rather than for a day at a time. statutory price controls on food limited profits to reasonable ones according to the distance of the supply. later, wages were determined in each county by justices of the peace according to the dearth of victuals while allowing a victualer a reasonable profit and a penalty was specified as paying the value of the excess wages given or received for the first offense, double this for the second offense, and treble this or forty days imprisonment for the third offense. a fugitive laborer will be outlawed, and when found, shall be burnt in the forehead with the letter "f" for falsity. children who labored at the plough and cart or other agriculture shall continue in that labor and may not go into a craft. a statute of 1363 designed to stop hoarding various types of merchandise until a type became scarce so to sell it at high prices, required merchants to deal in only one type of merchandise. it also required craftsmen to work in only one craft as before (except women who traditionally did several types of handiwork). this was repealed a year later. where scarcity has made the price of poultry high, it shall be lowered to 8d. for a young capon, 7d. for an old capon or a goose, 9d. for a hen, and 10d. for a pullet. the fares for passage on boats on fresh waters and from dover to the continent shall remain at their old rate. any merchant selling at a fair after it has ended will forfeit to the king twice the value of that sold. anyone finding and proving cloth contrary to the assize of cloth shall have one-third of it for his labor. no shoemaker nor cordwainer shall tan their leather and no tanner shall make shoes, in order that tanning not be false or poorly done. all denizen [foreigner permitted to reside in the realm with certain rights and privileges] and alien merchants may buy and sell goods and merchandise, in gross, in any part of the country, despite town charters or franchises, to anyone except an enemy of the king. they may also sell small wares: victuals, fur, silk, coverchiefs [an item of woman's apparel], silver wire, and gold wire in retail, but not cloth or wine. they must sell their goods within three months of arrival. any alien bringing goods to the nation to sell must buy goods of the nation to the value of at least one-half that of his merchandise sold. these merchants must engage in no collusion to lower the price of merchandise bought, take merchandise bought to the staple, and promise to hold no staple beyond the sea for the same merchandise. an amendment disallowed denizens from taking wools, leather, woolfells, or lead for export, but only strangers. towns failing to bring disturbers of this right to justice shall forfeit their franchise to the king and pay double damages to the merchant. the disturber shall be imprisoned for a year. cloth may not be tacked nor folded for sale to merchants unless they are opened to the buyers for inspection, for instance for concealed inferior wool. workers, weavers, and fullers shall put their seals to every cloth. anyone may bring his own wools, woolfells, leather, and lead to the staple to sell without being compelled to sell them in the country. special streets or warehouses were appointed with warehouse rent fixed by the mayor and constables with four of the principal inhabitants. customs duties were regulated and machinery provided for their collection. no one may forestall or regrate, that is, buy at one price and sell at a higher price in the same locale. forestallers were those who bought raw material on its way to market. regrators were those who tried to create a "corner" in the article in the market itself. imported cloth shall be inspected by the king's officials for nonstandard measurements or defects [despite town franchises]. no one shall leave the nation except at designated ports, on pain of one year's imprisonment. social distinctions by attire were mandated by statute of 1363. a servant, his wife, son, or daughter, shall only wear cloth worth no more than 27s. and shall not have more than one dish of meat or fish a day. carters, ploughmen, drivers of the plough, oxherds, cowherds, shepherds, and all other people owning less than 40s. of goods and chattels shall only wear blanket and russet worth no more than 12d. and girdles of linen according to their estate. craftsmen and free peasants shall only wear cloth worth no more than 40s. esquires and gentlemen below the rank of knight with no land nor rent over 2,000s. a year shall only wear cloth worth no more than 60s., no gold, silver, stone, fur, or the color purple. esquires with land up to 2,667s. per year may wear 67s. cloth, cloth of silk and silver, miniver [grey squirrel] fur and stones, except stones on the head. merchants, citizens, burgesses, artificers, and people of handicraft having goods and chattels worth 10,000s. shall wear cloth the same value as that worn by esquires and gentlemen with land or rent within 2,000s. per year. the same merchants and burgesses with goods and chattels worth 13,333s. and esquires and gentlemen with land or rent within 400s. per year may not wear gold cloth, miniver fur, ermine [white] fur, or embroidered stones. a knight with land or rents within 2,667s. yearly are limited to cloth of 80s., but his wife may wear a stone on her head. knights and ladies with land or rents within 8,000s. to 20,000s. yearly may not wear fur of ermine or of letuse, but may wear gold, and such ladies may wear pearls as well as stones on their heads. the penalty is forfeiture of such apparel. this statute is necessary because of "outrageous and excessive apparel of diverse persons against their estate and degree, to the great destruction and impoverishment of all the land". if anyone finds a hawk [used to hunt birds, ducks, and pheasant] that a lord has lost, he must take it to the sheriff for keeping for the lord to claim. if there is no claim after four months, the finder may have it only if he is a gentleman. if one steals a hawk from a lord or conceals from him the fact that it has been found, he shall pay the price of the hawk and be imprisoned for two years. no laborer or any other man who does not have lands and tenements of the value of 40s. per year shall keep a greyhound or other hound or dog to hunt, nor shall they use nets or cords or other devices to take deer, hare, rabbits, nor other gentlemen's game, upon pain of one year imprisonment. (the rabbit had been introduced by the normans.) this 1390 law was primarily intended to stop the meetings of laborers and artificers. no man shall eat more than two courses of meat or fish in his house or elsewhere, except at festivals, when three are allowed [because great men ate costly meats to excess and the lesser people were thereby impoverished]. no one may export silver, whether bullion or coinage, or wine except foreign merchants may carry back the portion of their money not used to buy english commodities. the penalty for bringing false or counterfeit money into the nation is loss of life and member. an assigned searcher [inspector] for coinage of the nation on the sea passing out of the nation or bad money in the nation shall have one third of it. no foreign money may be used in the nation. each goldsmith shall have an identifying mark, which shall be placed on his vessel or work only after inspection by the king's surveyor. no one shall give anything to a beggar who is capable of working. vagrants begging in london were banned by this 1359 ordinance: "forasmuch as many men and women, and others, of divers counties, who might work, to the help of the common people, have betaken themselves from out of their own country to the city of london and do go about begging there so as to have their own ease and repose, not wishing to labor or work for their sustenance, to the great damage of the common people; and also do waste divers alms which would otherwise be given to many poor folks, such as lepers, blind, halt, and persons oppressed with old age and divers other maladies, to the destruction of the support of the same we do command on behalf of our lord the king, whom may god preserve and bless, that all those who go about begging in the said city and who are able to labor and work for the profit of the common people shall quit the said city between now and monday next ensuing. and if any such shall be found begging after the day aforesaid, the same shall be taken and put in the stocks on cornhill for half a day the first time, and the second time he shall remain in the stocks one whole day, and the third time he shall be taken and shall remain in prison for forty days and shall then forswear the said city forever. and every constable and the beadle of every ward of the said city shall be empowered to arrest such manner of folks and to put them in the stocks in manner aforesaid." the hundred year cry to "let the king live on his own" found fruition in a 1352 statute requiring consent of the parliament before any commission of array for militia could be taken and a 1362 statute requiring purchases of goods and means of conveyance for the king and his household to be made only by agreement with the seller and with payment to him before the king traveled on, instead of at the low prices determined unilaterally by the king's purveyor. every man who has wood within the forest may take houseboot [right to take wood for repair of one's house] and heyboot [right to take material for the maintenance of hedges and fences, and the making of farming utensils] in his wood without being arrested so long as it take such within the view of the foresters. no fecal matter, dung, garbage, or entrails of animals killed shall be put into ditches or rivers or other waters, so that maladies and diseases will not be caused by corrupted and infected air. the penalty is 400s. to the king after trial by the chancellor. gifts or alienation of land to guilds, fraternities, or towns are forbidden. instead, it escheats to its lord, or in his default, to the king. no man will be charged to go out of his county to do military service except in case of an enemy invasion of the nation. men who chose to go into the king's service outside the nation shall be paid wages by the king until their return. admiralty law came into being when ancient naval manners and customs were written down as the "black book of the admiralty". this included the organization of the fleet under the admiral, sea-maneuver rules such as not laying anchor until the admiral's ship had, engagement rules, and the distribution of captured goods: one-fourth to the vessel owner, one-fourth to the king if the seamen were paid by the king's wages, and the rest divided among the crew and admiral. stealing a boat or an anchor holding a boat was punishable by hanging. stealing an oar or an anchor was punishable by forty days imprisonment for the first offense, six months imprisonment for the second, and hanging for the third. desertion was punishable by loss of double the amount of wages earned and imprisonment for one year. cases were tried by jury in the admiral's court. wines, vinegar, oil and honey imported shall be gauged by the king's appointees. judicial procedure the office of justice of the peace was developed and filled by knights, esquires and gentlemen who were closely associated with the magnates. there was no salary nor any requirement of knowledge of the law. they were to pursue, restrain, arrest, imprison, try, and duly punish felons, trespassers, and rioters according to the law. they were expected to arrest vagrants who would not work and imprison them until sureties for good behavior was found for them. they also were empowered to inspect weights and measures. the writ of trespass developed into three kinds according to the type of injury: to person, land, or chattels. trespass included forcible offenses of assault and battery, false imprisonment, breaking of a fence enclosing private property, and taking away goods and chattels. the action of trespass was replacing private suits for murder and for personal injury. pardons may be given only for slaying another in one's own defense or by misfortune [accident], and not for slaying by lying in wait, assault, or malice aforethought. justices of assize, sheriffs, and justices of the peace and mayors shall have power to inquire of all vagabonds and compel them to find surety of their good bearing or be imprisoned. a reversioner shall be received in court to defend his right when a tenant for a term of life, tenant in dower, or by curtesy of the nation, or in [fee] tail after possibility of issue extinct are sued in court for the land, so as to prevent collusion by the demandants. a person in debt may not avoid his creditors by giving his tenements or chattels to his friends in collusion to have the profits at his will. where there was a garnishment given touching a plea of land, a writ of deceit is also maintainable. actions of debt will be heard only in the county where the contract was made. the action of debt includes enforcement of contracts executed or under seal, e.g. rent due on a lease, hire of an archer, contract of sale or repair of an item. thus there is a growing connection between the actions of debt and contract. executors have an action for trespass to their testators' goods and chattels in like manner as did the testator when alive. if a man dies intestate, his goods shall be administered by his next and most lawful friends appointed. such administrators shall have the same powers and duties as executors and be accountable as are executors to the ecclesiastical court. children born to english parents in parts beyond the sea may inherit from their ancestors in the same manner as those born in the nation. a person grieved by a false oath in a town court proceeding may appeal to the king's bench or common pleas, regardless of any town franchise. it was exceptional for the king to sit on the court of the king's bench, which worked independently of the king and became confined to the established common law. the court of common pleas had three types of jurisdiction: 1) common law jurisdiction between person and person, including actions regarding land, which was exclusive, 2) personal actions of debt, detinue, account and covenant, and 3) mixed actions, both personal and regarding land, e.g. ejectment. it had shared jurisdiction with the court of the king's bench in maintenance, conspiracy, other breaches of statute, trespass, trespass on the case, and their derivatives. most of its business had to do with recovery of debt, from 40s. to thousands of pounds. the king's bench and common pleas courts vied with each other for cases in order to get more profits of justice. grand juries were summoned by the sheriff to decide whether, on the evidence of the prosecution, there was a case to go to trial. the petty or trial jury heard all parties to a lawsuit and determined the facts. in 1351 a statute required that no member of a grand jury could sit on a petty jury if so challenged by the accused. decisions of the common law courts are appealable to the house of lords. the king's council members who are not peers, in particular the justices and the masters of the chancery, are summoned by the house of lords only as mere assistants. parliament may change the common law by statute. the right of a peer to be tried for capital crimes by a court composed of his peers was established. there was a widespread belief that all the peers are by right the king's councilors. no attorney may practice law and also be a justice of assize. no justice may take any gift except from the king nor give counsel to any litigant before him. in 1390, there was a statute against maintainers, instigators, barretors, procurers, and embracers of quarrels and inquests because of great and outrageous oppressions of parties in court. because this encouraged maintenance by the retinue of lords with fees, robes, and other liveries, such maintainers were to be put out of their lords' service, and could not be retained by another lord. no one was to give livery to anyone else, except household members and those retained for life for peace or for war. justices of the peace were authorized to inquire about yeomen, or other of lower estate than squire, bearing livery of any lord. whereas it is contained in the magna carta that none shall be imprisoned nor put out of his freehold, nor of his franchises nor free custom, unless it be by the law of the land; it is established that from henceforth none shall be taken by petition or suggestion made to the king unless by indictment of good and lawful people of the same neighborhood where such deeds be done, in due manner, or by process made by writ original at the common law; nor that none be out of his franchise, nor of his freeholds, unless he be duly brought into answer and before judges of the same by the course of law. the chancery came to have a separate and independent equitable jurisdiction. it heard petitions of misconduct of government officials or of powerful oppressors, fraud, accident, abuse of trust, wardship of infants, dower, and rent charges. because the common law and its procedures had become technical and rigid, the chancery was given equity jurisdiction by statute in 1285. king edward iii proclaimed that petitions for remedies that the common law didn't cover be addressed to the chancellor, who was not bound by established law, but could do equity. in chancery, if there is a case that is similar to a case for which there is a writ, but is not in technical conformity with the requirements of the common law for a remedy, then a new writ may be made for that case by the chancellor. these were "actions on the case". also, parliament may create new remedies. there were so many cases that were similar to a case with no remedy specified in the common law, that litigants were flowing into the chancery. the chancellor gave swift and equitable relief, which was summary. the chancery court had no jury. with the backing of the council, the chancellor made decisions implementing the policy of the statute of laborers. most of these concerned occupational competency, for instance negligent activity of carriers, builders, shepherds, doctors, cloth workers, smiths, innkeepers, and gaolers. for instance, the common law action of detinue could force return of cloth bailed for fulling or sheep bailed for pasturing, but could not address damages due to faulty work. the chancellor addressed issues of loss of wool, dead lambs, and damaged sheep, as well as dead sheep. he imposed a legal duty on innkeepers to prevent injury or damage to a patron or his goods from third parties. a dog bite or other damage by a dog known by its owner to be vicious was made a more serious offense than general damage by any dog. a person starting a fire was given a duty to prevent the fire from damaging property of others. the king will fine instead of seize the land of his tenants who sell or alienate their land, such fine to be determined by the chancellor by due process. the chancery is now a court side by side with the common law courts of common pleas, king's bench, and exchequer. only barons who were peers of the house of lords were entitled to trial in the house of lords. in practice, however, this pertained only to major crimes. treason was tried by the lords in parliament, by bill of "attainder". it was often used for political purposes. most attainders were reversed as a term of peace made between competing factions. attorneys presided over manorial courts and made decisions with or without the villeins in attendance based on the custom of the manor. the king's coroner and a murderer who had taken sanctuary in a church often agreed to the penalty of confession and perpetual banishment from the nation as follows: "memorandum that on july 6, [1347], henry de roseye abjured the realm of england before john bernard, the king's coroner, at the church of tendale in the county of kent in form following: 'hear this, o lord the coroner, that i, henry de roseye, have stolen an ox and a cow of the widow of john welsshe of retherfeld; and i have stolen eighteen beasts from divers men in the said county. and i acknowledge that i have feloniously killed roger le swan in the town of strete in the hundred of strete in the rape [a division of a county] of lewes and that i am a felon of the lord king of england. and because i have committed many ill deeds and thefts in his land, i abjure the land of the lord edward king of england, and [i acknowledge] that i ought to hasten to the port of hastings, which thou hast given me, and that i ought not to depart from the way, and if i do so i am willing to be taken as a thief and felon of the lord king, and that at hastings i will diligently seek passage, and that i will not wait there save for the flood and one ebb if i can have passage; and if i cannot have passage within that period, i will go up to the knees into the sea every day, endeavoring to cross; and unless i can do so within forty days, i will return at once to the church, as a thief and a felon of the lord king, so help me god." property damage by a tenant of a london building was assessed in a 1374 case: "john parker, butcher, was summoned to answer clement spray in a plea of trespass, wherein the latter complained that the said john, who had hired a tavern at the corner of st. martinle-grand from him for fifteen months, had committed waste and damage therein, although by the custom of the city no tenant for a term of years was entitled to destroy any portion of the buildings or fixtures let to him. he alleged that the defendant had taken down the door post of the tavern and also of the shop, the boarded door of a partition of the tavern, a seat in the tavern, a plastered partition wall, the stone flooring in the chamber, the hearth of the kitchen, and the mantelpiece above it, a partition in the kitchen, two doors and other partitions, of a total value of 21s. four pounds, 1s. 8d., and to his damage, 400s. [20 pounds]. the defendant denied the trespass and put himself on the country. afterwards a jury [panel]... found the defendant guilty of the aforesaid trespass to the plaintiff's damage, 40d. judgment was given for that amount and a fine of 1s. to the king, which the defendant paid immediately in court." the innkeeper's duty to safeguard the person and property of his lodgers was applied in this case: "john trentedeus of southwark was summoned to answer william latymer touching a plea why, whereas according to the law and custom of the realm of england, innkeepers who keep a common inn are bound to keep safely by day and by night without reduction or loss men who are passing through the parts where such inns are and lodging their goods within those inns, so that, by default of the innkeepers or their servants, no damage should in any way happen to such their guests ... on monday after the feast of the purification of the virgin mary in the fourth year of the now king by default of the said john, certain malefactors took and carried away two small portable chests with 533s. and also with charters and writings, to wit two writings obligatory, in the one of which is contained that a certain robert bour is bound to the said william in 2,000s. and in the other that a certain john pusele is bound to the same william in 800s. 40 pounds ... and with other muniments [writings defending claims or rights] of the same william, to wit his return of all the writs of the lord king for the counties of somerset and dorset, whereof the same william was then sheriff, for the morrow of the purification of the blessed mary the virgin in the year aforesaid, as well before the same lord the king in his chancery and in his bench as before the justices of the king's common bench and his barons of his exchequer, returnable at westminster on the said morrow, and likewise the rolls of the court of cranestock for all the courts held there from the first year of the reign of the said lord the king until the said monday, contained in the same chests being lodged within the inn of the same john at southwark and the said john ... says that on the said monday about the second hour after noon the said william entered his inn to be lodged there, and at once when he entered, the same john assigned to the said william a certain chamber being in that inn, fitting for his rank, with a door and a lock affixed to the same door with sufficient nails, so that he should lie there and put and keep his things there, and delivered to the said william the key to the door of the said chamber, which chamber the said william accepted... william says that ... when the said john had delivered to him the said chamber and key as above, the same william, being occupied about divers businesses to be done in the city of london, went out from the said inn into the city to expedite the said businesses and handed over the key of the door to a certain servant of the said william to take care of in meantime, ordering the servant to remain in the inn meanwhile and to take care of his horses there; and afterwards, when night was falling, the same william being in the city and the key still in the keeping of the said servant, the wife of the said john called unto her into her hall the said servant who had the key, giving him food and drink with a merry countenance and asking him divers questions and occupying him thus for a long time, until the staple of the lock of the door aforesaid was thrust on one side out of its right place and the door of the chamber was thereby opened and his goods, being in the inn of the said john, were taken and carried off by the said malefactors ... the said john says ...[that his wife did not call the servant into the hall, but that] when the said servant came into the said hall and asked his wife for bread and ale and other necessaries to be brought to the said chamber of his master, his wife immediately and without delay delivered to the same servant the things for which he asked ... protesting that no goods of the same william in the said inn were carried away by the said john his servant or any strange malefactors other than the persons of the household of the said william." on the coram rege roll of 1395 is a case on the issue of whether a court crier can be seized by officers of a staple: "edmund hikelyng, 'crier', sues william baddele and wife maud, john olney, and william knyghtbrugge for assault and imprisonment at westminster, attacking him with a stick and imprisoning him for one hour on wednesday before st. martin, 19 richard ii. baddele says mark faire of winchester was prosecuting a bill of debt for 18s. against edmund and john more before william brampton, mayor of the staple of westminster, and thomas alby and william askham, constables of the said staple, and on that day the mayor and the constables issued a writ of capias against edmund and john to answer mark and be before the mayor and the constables at the next court. this writ was delivered to baddele as sergeant of the staple, and by virtue of it he took and imprisoned edmund in the staple. maud and the others say they aided baddele by virtue of the said writ. edmund does not acknowledge baddele to be sergeant of the staple or mark a merchant of the staple or that he was taken in the staple. he is minister of the king's court of his bench and is crier under thomas thorne, the chief crier, his master. every servant of the court is under special protection while doing his duty or on his way to do it. on the day in question, he was at westminster carrying his master's staff of office before hugh huls, one of the king's justices, and william took him in the presence of the said justice and imprisoned him. the case is adjourned for consideration from hilary to easter." a law of equity began to be developed from decisions by the chancellor in his court of conscience from around 1370. one such case was that of godwyne v. profyt sometime after 1393. this petition was made to the chancellor: to the most reverend father in god, and most gracious lord, the bishop of exeter, chancellor of england. thomas godwyne and joan his wife, late wife of peter at more of southwerk, most humbly beseech that, whereas at michaelmas in the 17th year of our most excellent lord king richard who now is, the said peter at more in his lifetime enfeoffed thomas profyt parson of st. george's church southwerk, richard saundre, and john denewey, in a tenement with the appurtenances situated in southwerk and 24 acres of land 6 acres of meadow in the said parish of st. george and in the parish of our lady of newington, on the conditions following, to wit, that the said three feoffees should, immediately after the death of the said peter, enfeoff the said joan in all the said lands and tenements with all their appurtenances for the life of the said joan, with remainder after her decease to one nicholas at more, brother of the said peter, to hold to him and the heirs of his body begotten, and for default of issue, then to be sold by four worthy people of the said parish, and the money to be received for the same to be given to holy church for his soul; whereupon the said peter died. and after his death two of the said feoffees, richard and john, by the procurement of one john solas, released all their estate in the said lands and tenements to the said thomas profyt, on the said conditions, out of the great trust that they had in the said thomas profyt, who was their confessor, that he would perform the will of the said peter [at more] in the form aforesaid; and this well and lawfully to do the said thomas profyt swore on his verbum dei and to perform the said conditions on all points. and since the release was so made, the said thomas profyt, through the scheming and false covin of the said john solas, has sold all the lands and tenements aforesaid to the same john solas for ever. and the said john solas is bound to the said thomas profyt in 100 pounds by a bond to make defense of the said lands and tenements by the bribery and maintenance against every one; and so by their false interpretation and conspiracy the said joan, nicholas, and holy church are like to be disinherited and put out of their estate and right, as is abovesaid, for ever, tortiously, against the said conditions, and contrary to the will of the said peter [at more]. may it please your most righteous lordship to command the said thomas profyt, richard saundre, and john denewy to come before you, and to examine them to tell the truth of all the said matter, so that the said joan, who has not the wherewithal to live, may have her right in the said lands and tenements, as by the examination before you, most gracious lord, shall be found and proved; for god and in way of holy charity. chapter 10 the times: 1399-1485 this period, which begins with the reign of the usurper king, henry iv, is dominated by war: the last half of the 100 year war with france, which, with the help of joan of arc, took all english land on the continent except the port of calais, and the war of the roses over the throne in england. the ongoing border fights with wales and scotland were fought by england's feudal army. but for fighting in france, the king paid barons and earls to raise their own fighting forces. when they returned to england, they fought to put their candidate on its throne, which had been unsteady since its usurpation by henry iv. all the great houses kept bands of armed retainers. these retainers were given land or pay or both as well as liveries [uniforms or badges] bearing the family crest. in the system of "livery and maintenance", if the retainer was harassed by the law or by enemies, the lord protected him. the liveries became the badges of the factions engaged in the war of the roses. the white rose was worn by the supporters of the house of york, and the red rose by supporters of the house of lancaster. great lords fought each other for property and made forcible entries usurping private property. nobles employed men who had returned from fighting in war to use their fighting skill in local defense.henry iv was the last true warrior king. in both wars, the musket was used as well as the longbow. to use it, powder was put into the barrel, then a ball rammed down the barrel with a rod, and then the powder lit by a hot rod held with one hand while the other hand was used to aim the musket. cannon were used to besiege castles and destroy their walls, so many castles were allowed to deteriorate. the existence of cannon also limited the usefulness of town walls for defense. but townspeople did not take part in the fighting. since the power of the throne changed from one faction to another, political and personal vindictiveness gave rise to many bills of attainder that resulted in lords being beheaded and losing their lands to the king. however, these were done by the form of law; there were no secret executions in england. families engaged in blood feuds. roving bands ravaged the country, plundering the people, holding the forests, and robbing collectors of crown revenue. some men made a living by fighting for others in quarrels. individual life and property were insecure. whole districts were in a permanent alarm of riot and robbery. the roads were not safe. there was fighting between lords and gangs of ruffians holding the roads, breaking into and seizing manor houses, and openly committing murders. peace was never well-kept nor was law ever well-executed, though fighting was suspended by agreement during the harvest. local administration was paralyzed by party faction or lodged in some great lord or some clique of courtiers. the elections of members to parliament were interfered with and parliament was rarely held. barons and earls fought their disputes in the field rather than in the royal courts. litigation was expensive, so men relied increasingly on the protection of the great men of their neighborhood and less on the king's courts for the safety of their lives and land. local men involved in court functions usually owed allegiance to a lord which compromised the exercise of justice. men serving in an assize often lied to please their lord instead of telling the truth. lords maintained, supported, or promoted litigation with money or aid supplied to one party to the detriment of justice. it was not unusual for lords to attend court with a great force of retainers behind them. many justices of the peace wore liveries of magnates and accepted money from them. royal justices were flouted or bribed. the king's writ was denied or perverted. for 6-8s., a lord could have the king instruct his sheriff to impanel a jury which would find in his favor. a statute against riots, forcible entries, and, excepting the king, magnates' liveries of uniform, food, and badges to their retainers, except in war outside the nation, was passed, but was difficult to enforce because the offenders were lords, who dominated the parliament and the council. with men so often gone to fight, their wives managed the household alone. the typical wife had maidens of equal class to whom she taught household management, spinning, weaving, carding wool with iron wool-combs, heckling flax, embroidery, and making garments. there were foot-treadles for spinning wheels. she taught the children. each day she scheduled the activities of the household including music, conversation, dancing, chess, reading, playing ball, and gathering flowers. she organized picnics, rode horseback and went hunting, hawking to get birds, and hare-ferreting. she was nurse to all around her. if her husband died, she usually continued to manage the household because most men named their wife as executor of their will with full power to act as she thought best. the wives of barons shared their right of immunity from arrest by the processes of common law and to be tried by their peers. for ladies, close-fitting jackets came to be worn over closefitting long gowns with low, square-cut necklines and flowing sleeves, under which was worn a girdle or corset of stout linen reinforced by stiff leather or even iron. her skirt was provocatively slit from knee to ankle. all her hair was confined by a hair net. headdresses were very elaborate and heavy, trailing streamers of linen. some were in the shape of hearts, butterflies, crescents, double horns, steeples, or long cones. men also wore hats rather than hoods. they wore huge hats of velvet, fur, or leather. their hair was cut into a cap-like shape on their heads, and later was shoulder-length. they wore doublets with thick padding over the shoulders or short tunics over the trucks of their bodies and tightened at the waist to emphasize the shoulders. their collars were high. their sleeves were long concoctions of velvet, damask, and satin, sometimes worn wrapped around their arms in layers. their legs and hips were covered with hosen, often in different colors. codpieces worn between the legs emphasized the sensuality of the age as did ladies' tight and lowcut gowns. men's shoes were pointed with upward pikes at the toes that impeded walking. at another time, their shoes were broad with blunt toes. both men and women wore much jewelry and ornamentation. but, despite the fancy dress, the overall mood was a macabre preoccupation with mortality, despair, and a lack of confidence in the future. cannon and mercenaries had reduced the military significance of knighthood, so its chivalric code deteriorated into surface politeness, ostentation, and extravagance. master and servants ceased to eat together in the same hall, except for great occasions, on feast days, and for plays. the lord, and his lady, family, and guests took their meals in a great chamber, usually up beneath the roof next to the upper floor of the great hall. the chimney-pieces and windows were often richly decorated with paneled stonework, tracery and carving. there was often a bay or oriel window with still expensive glass. tapestries, damask, and tablecloths covered the tables. the standard number of meals was three: breakfast, dinner, and supper. there was much formality and ceremonial ritual, more elaborate than before, during dinners at manorial households, including processions bringing and serving courses, and bowing, kneeling, and curtseying. there were many courses of a variety of meats, fish, stews, and soups, with a variety of spices and elaborately cooked. barons, knights, and their ladies sat to the right of the lord above the salt and were served by the lord's sewer [served the food] and carver and gentlemen waiters; their social inferiors such as "gentlemen of worship" sat below the salt and were served by another sewer and yeomen. the lord's cupbearer looked after the lord alone. a knights' table was waited on by yeomen. the gentlemen officers, gentlemen servants and yeomen officers were waited on by their own servants. the amount of food dished out to each person varied according to his rank. the almoner said grace and distributed the leftovers to the poor gathered at the gate. the superior people's hands were washed by their inferiors. lastly, the trestle tables were removed while sweet wine and spices were consumed standing. then the musicians were called into the hall and dancing began. the lord usually slept in a great bed in this room. the diet of an ordinary family such as that of a small shopholder or yeoman farmer included beef, mutton, pork, a variety of fish, both fresh and salted, venison, nuts, peas, oatmeal, honey, grapes, apples, pears, and fresh vegetables. cattle and sheep were driven from wales to english markets. this droving lasted for five centuries. many types of people besides the nobility and knights now had property and thus were considered gentry: female lines of the nobility, merchants and their sons, attorneys, auditors, squires, and peasant-yeomen. the burgess grew rich as the knight dropped lower. the great merchants lived in mansions which could occupy whole blocks. in towns these mansions were entered through a gate through a row of shops on the street.typically, there would be an oak-paneled great hall, with adjoining kitchen, pantry, and buttery on one end and a great parlor to receive guests, bedrooms, wardrobes, servants' rooms, and a chapel on the other end or on a second floor. a lesser dwelling would have these rooms on three floors over a shop on the first floor. an average londoner would have a shop, a storeroom, a hall, a kitchen, and a buttery on the first floor, and three bedrooms on the second floor. artisans and shopkeepers of more modest means lived in rows of dwellings, each with a shop and small storage room on the first floor, and a combination parlor-bedroom on the second floor. the humblest residents crowded their shop and family into one 6 by 10 foot room for rent of a few shillings a year. all except the last would also have a small garden. the best gardens had a fruit tree, herbs, flowers, a well, and a latrine area. there were common and public privies for those without their own. kitchen slops and casual refuse continued to be thrown into the street. floors of stone or planks were strewn with rushes. there was some tile flooring. most dwellings had glass windows. candles were used for lighting at night. torches and oil-burning lanterns were portable lights. furnishings were still sparse. men sat on benches or joint stools and women sat on cushions on the floor. hall and parlor had a table and benches and perhaps one chair. bedrooms had beds that were surrounded by heavy draperies to keep out cold drafts. the beds had pillows, blankets, and sheets. clothes were stored in a chest, sometimes with sweet-smelling herbs such as lavender, rosemary, and southernwood. better homes had wall hanging and cupboards displaying plate. laundresses washed clothes in the streams, rivers, and public conduits. country peasants still lived in wood, straw, and mud huts with earth floors and a smoky hearth in the center or a kitchen area under the eaves of the hut. in 1442, bricks began to be manufactured in the nation and so there was more use of bricks in buildings. chimneys were introduced into manor houses where stone had been too expensive. this was necessary if a second floor was added, so the smoke would not damage the floor above it and would eventually go out of the house. nobles and their retinue moved from manor to manor, as they had for centuries, to keep watch upon their lands and to consume the produce thereof; it was easier to bring the household to the estate than to transport the yield of the estate to the household. also, at regular intervals sewage had to be removed from the cellar pits. often a footman walked or ran on foot next to his master or mistress when they rode out on horseback or in a carriage. he was there primarily for prestige. jousting tournaments were held for entertainment purposes only and were followed by banquets of several courses of food served on dishes of gold, silver, pewter, or wood on a linen cloth covering the table. hands were washed before and after the meal. people washed their faces every morning after getting up. teeth were cleaned with powders. fragrant leaves were chewed for bad breath. garlic was used for indigestion and other ailments. feet were rubbed with salt and vinegar to remove calluses. good manners included not slumping against a post, fidgeting, sticking one's finger into one's nose, putting one's hands into one's hose to scratch the privy parts, spitting over the table or too far, licking one's plate, picking one's teeth, breathing stinking breath into the face of the lord, blowing on one's food, stuffing masses of bread into one's mouth, scratching one's head, loosening one's girdle to belch, and probing one's teeth with a knife. fishing and hunting were reserved for the nobility rather than just the king. as many lords became less wealthy because of the cost of war, some peasants, villein and free, became prosperous, especially those who also worked at a craft, e.g. butchers, bakers, smiths, shoemakers, tailors, carpenters, and cloth workers. an agricultural slump caused poorer soils to fall back into waste. the better soils were leased by peasants, who, with their families, were in a better position to farm it than a great lord, who found it hard to hire laborers at a reasonable cost. further, peasants' sheep, hens, pigs, ducks, goats, cattle, bees, and crop made them almost self-sufficient in foodstuffs. they lived in a huddle of cottages, pastured their animals on common land, and used common meadows for haymaking. they subsisted mainly on boiled bacon, an occasional chicken, worts and beans grown in the cottage garden, and cereals. they wore fine wool cloth in all their apparel. brimless hats were replacing hoods. they had an abundance of bed coverings in their houses. and they had more free time. village entertainment included traveling jesters, acrobats, musicians, and bear-baiters. playing games and gambling were popular pastimes. most villeins were now being called "customary tenants" or "copyholders" of land because they held their acres by a copy of the court-roll of the manor, which listed the number of teams, the fines, the reliefs, and the services due to the lord for each landholder. the chancery court interpreted many of these documents to include rights of inheritance. the common law courts followed the lead of the chancery and held that marriage land could be inherited as was land at common law. evictions by lords decreased. the difference between villein and freeman lessened but landlords usually still had profits of villein bondage, such as heriot, merchet, and chevage. social mobility was most possible in the towns, where distinctions were usually only of wealth. so a poor apprentice could aspire to become a master, a member of the livery of his company, a member of the council, an alderman, a mayor, and then an esquire for life. the distance between baron and a country knight and between a yeoman and knight was wider. manor custom was strong. but a yeoman could give his sons a chance to become gentlemen by entering them in a trade in a town, sending them to university, or to war. every freeman was to some extent a soldier, and to some extent a lawyer, serving in the county or borough courts. a burgess, with his workshop or warehouse, was trained in warlike exercises, and he could keep his own accounts, and make his own will and other legal documents, with the aid of a scrivener or a chaplain, who could supply an outline of form. but law was growing as a profession. old-established london families began to choose the law as a profession for their sons, in preference to an apprenticeship in trade. many borough burgesses in parliament were attorneys. a class of laborers was arising who depended entirely on the wages of industry for their subsistence. the cloth workers in rural areas were isolated and weak and often at the mercy of middlemen for employment and the amount of their wages. when rural laborers went to towns to seek employment in the new industries, they would work at first for any rate. this deepened the cleavage of the classes in the towns. the artificers in the town and the cottagers and laborers in the country lived from hand to mouth, on the edge of survival, but better off than the old, the diseased, the widows, and the orphans. however, the 1400s were the most prosperous time for laborers considering their wages and the prices of food. meat and poultry were plentiful and grain prices low. in london, shopkeepers appealed to passersby to buy their goods, sometimes even seizing people by the sleeve. the drapers had several roomy shops containing shelves piled with cloths of all colors and grades, tapestries, pillows, blankets, bed draperies, and "bankers and dorsers" to soften hard wooden benches. a rear storeroom held more cloth for import or export. many shops of skinners were on fur row. there were shops of leather sellers, hosiers, gold and silver cups, and silks. at the stocks market were fishmongers, butchers, and poulterers. london grocers imported spices, canvas, ropery, potions, unguents, soap, confections, garlic, cabbages, onions, apples, oranges, almonds, figs, dates, raisins, dyestuffs, woad, madder (plant for medicine and dye), scarlet grains, saffron, iron, and a primitive steel. they were retailers as well as wholesalers and had shops selling honey, licorice, salt, vinegar, rice, sugar loaves, syrups, spices, garden seeds, dyes, alum, soap, brimstone, paper, varnish, canvas, rope, musk, incense, treacle of genoa, and mercury. the grocers did some money lending, usually at 12% interest. the guilds did not restrict themselves to dealing in the goods for which they had a right of inspection, and so many dealt in wine that it was a medium of exchange. there was no sharp distinction between retail and wholesale trading. london grocers sold herbs for medicinal as well as eating purposes. breadcarts sold penny wheat loaves. foreigners set up stalls on certain days of the week to sell meat, canvas, linen, cloth, ironmongery, and lead. there were great houses, churches, monasteries, inns, guildhalls, warehouses, and the king's beam for weighing wool to be exported. in 1410, the guildhall of london was built through contributions, proceeds of fines, and lastly, to finish it, special fees imposed on apprenticeships, deeds, wills, and letters-patent. the mercers and goldsmiths were in the prosperous part of town. the goldsmiths' shops sold gold and silver plate, jewels, rings, water pitchers, drinking goblets, basins to hold water for the hands, and covered saltcellars. the grain market was on cornhill. halfway up the street, there was a supply of water which had been brought up in pipes. on the top of the hill was a cage where riotous folk had been incarcerated by the night watch and the stocks and pillory, where fraudulent schemers were exposed to ridicule. no work was to be done on sundays, but some did work surreptitiously. the barbers kept their shops open in defiance of the church. outside the london city walls were tenements, the smithfield cattle market, westminster hall, green fields of crops, and some marsh land. on the thames river to london were large ships with cargoes; small boats rowed by tough boatmen offering passage for a penny; small private barges of great men with carved wood, gay banners, and oarsmen with velvet gowns; the banks covered with masts and tackle; the nineteen arch london bridge supporting a street of shops and houses and a drawbridge in the middle; quays; warehouses, and great cranes lifting bales from ship to wharf. merchant guilds which imported or exported each had their own wharves and warehouses. downstream, pirates hung on gallows at the low-water mark to remain until three tides had overflowed their bodies. a climate change of about 1 1/2 degree celcius lower caused the thames to regularly freeze over in winter. the large scale of london trade promoted the specialization of the manufacturer versus the merchant versus the shipper. merchants had enough wealth to make loans to the government or for new commercial enterprises. local reputation on general, depended upon a combination of wealth, trustworthiness of character, and public spirit; it rose and fell with business success. some london merchants were knighted by the king. many bought country estates thereby turning themselves into gentry. the king granted london all common soils, improvements, wastes, streets, and ways in london and in the adjacent waters of the thames river and all the profits and rents to be derived therefrom. later the king granted london the liberty to purchase lands and tenements worth up to 2,667s. yearly. with this power, london had obtained all the essential features of a corporation: a seal, the right to make by-laws, the power to purchase lands and hold them "to them and their successors" (not simply their heirs, which is an individual and hereditary succession only), the power to sue and be sued in its own name, and the perpetual succession implied in the power of filling up vacancies by election. since these powers were not granted by charters, london is a corporation by prescription. in 1446, the liverymen obtained the right with the council to elect the mayor, the sheriff, and certain other corporate officers. many boroughs sought and obtained formal incorporation with the same essential features as london. this tied up the loose language of their early charters of liberties. often, a borough would have its own resident justice of the peace. each incorporation involved a review by a justice of the peace to make sure the charter of incorporation rule didn't conflict with the law of the nation. a borough typically had a mayor accompanied by his personal swordbearer and serjeants-at-mace bearing the borough regalia, bailiffs, a sheriff, and chamberlains or a steward for financial assistance. at many boroughs, aldermen, assisted by their constables, kept the peace in their separate wards. there might be coroners, a recorder, and a town clerk, with a host of lesser officials including beadles [a messenger of a court], aletasters, sealers, searchers [inspectors], weighers and keepers of the market, ferrymen and porters, clock-keepers and criers [cries out public announcements through the streets], paviors [maintained the roads], scavengers and other street cleaners, gatekeepers and watchmen of several ranks and kinds. a wealthy borough would have a chaplain and two or three minstrels. the mayor replaced the bailiffs as the chief magistracy. in all towns, the wealthiest and most influential guilds were the merchant traders of mercers, drapers, grocers, and goldsmiths. from their ranks came most of the mayors, and many began to intermarry with the country knights and gentry. next came the shopholders of skinners, tailors, ironmongers, and corvisors [shoemakers]. thirdly came the humbler artisans, the sellers of victuals, small shopkeepers, apprentices, and journeymen on the rise. lastly came unskilled laborers, who lived in crowded tenements and hired themselves out. the first three groups were the free men who voted, paid scot and bore lot, and belonged to guilds. scot was a ratable proportion in the payments levied from the town for local or national purposes. merchant guilds in some towns merged their existence into the town corporation, and their guild halls became the common halls of the town, and their property became town property. in london, the cutlers' company was chartered in 1415, the haberdashers' company in 1417, the grocers' company in 1428, the drapers' and cordwainers' companies in 1429, the vintners' and brewers' companies in 1437, the leathersellers' company in 1444, the girdlers' company in 1448, the armourers' and brassiers' companies in 1453, the barbers' company in 1461, the tallow chandlers' company in 1462, the ironmongers' company in 1464, the dyers' company in 1471, the musicians' company in 1472, the carpenters' company in 1477, the cooks' company in 1481, and the waxchandlers' company in 1483. the fishmongers, which had been chartered in 1399, were incorporated in 1433, the cordwainers in 1439, and the pewterers in 1468. there were craft guilds in the towns, at least 65 in london. in fact, every london trade of twenty men had its own guild. the guild secured good work for its members and the members maintained the reputation of the work standards of the guild. bad work was punished and night work prohibited as leading to bad work. the guild exercised moral control over its members and provided sickness and death benefits for them. there was much overlapping in the two forms of association: the craft guild and the religious fraternity. apprentices were taken in to assure an adequate supply of competent workers for the future. the standard indenture of an apprentice bound him to live in his master's house; serve him diligently; obey reasonable commands; keep his master's secrets; protect him from injury; abstain from dice, cards and haunting of taverns; not marry; commit no fornication, and not absent himself without permission. in return the master undertook to provide the boy or girl with bed, board, and lodging and to instruct him or her in the trade, craft, or mystery. when these apprentices had enough training they were made journeymen with a higher rate of pay. journeymen traveled to see the work of their craft in other towns. those journeymen rising to master had the highest pay rate. occupations free of guild restrictions included horse dealers, marbelers, bookbinders, jewelers, organ makers, feathermongers, pie makers, basket makers, mirrorers, quilters, and parchment makers. non-citizens of london could not be prevented from selling leather, metalwares, hay, meat, fruit, vegetables, butter, cheese, poultry, and fish from their boats, though they had to sell in the morning and sell all their goods before the market closed. in the towns, many married women had independent businesses and wives also played an active part in the businesses of their husbands. wives of well-to-do london merchants embroidered, sewed jewelry onto clothes, and made silk garments. widows often continued in their husband's businesses, such as managing a large import-export trade, tailoring, brewing, and metal shop. socially lower women often ran their own breweries, bakeries, and taverns. it was possible for wives to be free burgesses in their own right in some towns. some ladies were patrons of writers. some women were active in prison reform in matters of reviews to insure that no man was in gaol without due cause, overcharges for bed and board, brutality, and regulation of prisoners being placed in irons. many men and women left money in their wills for food and clothing for prisoners, especially debtors. wills often left one-third of the wealth to the church, the poor, prisoners, infirmaries, young girls' education; road, wall, and bridge repair; water supply, markets and almshouses. some infirmaries were for the insane, who were generally thought to be possessed by the devil or demons. their treatment was usually by scourging the demons out of their body by flogging. if this didn't work, torture could be used to drive the demons from the body. the guilds were being replaced by associations for the investment of capital. in associations, journeymen were losing their chance of rising to be a master. competition among associations was starting to supplant custom as the mainspring of trade. the cloth exporters, who were mostly mercers, were unregulated and banded together for mutual support and protection under the name of merchant adventurers of london. the merchant adventurers was chartered in 1407. it was the first and a prototype of regulated companies. that is the company regulated the trade. each merchant could ship on his own a certain number of cloths each year, the number depending on the length of his membership in the company. he could sell them himself or by his factor at the place where the company had privileges of market. strict rules governed the conduct of each member. he was to make sales only at certain hours on specified days. all disagreements were to be settled by the company's governor, or his deputy in residence, and those officials dealt with such disputes as arose between members of the company and continental officials and buyers. a share in the ownership of one of their vessels was a common form of investment by prosperous merchants. by 1450, the merchant adventurers were dealing in linen cloths, buckrams [a stiffened, coarse cloth], fustians [coarse cloth made of cotton threads going in one direction and linen threads the other], satins, jewels, fine woolen and linen wares, threads, potions, wood, oil, wine, salt, copper, and iron. they began to replace trade by alien traders. the history of the "merchant adventurers" was associated with the growth of the mercantile system for more than 300 years. it eventually replaced the staples system. paved roads in towns were usually gravel and sometimes cobble. they were frequently muddy because of rain and spillage of water being carried. iron-shod wheels and overloaded carts made them very uneven. london was the first town with paviors. they cleaned and repaired the streets, filling up potholes with wood chips and compacting them with hand rams. the paviors were organized as a city company in 1479. about 1482, towns besides london began appointing salaried road paviors to repair roads and collect their expenses from the householders because the policy of placing the burden on individual householders didn't work well. london streets were lighted at night by public lanterns, under the direction of the mayor. the residents were to light these candle lanterns in winter from dusk to the 9 p.m. curfew. there were fire-engines composed of a circular cistern with a pump and six feet of inflexible hose on wheels pulled by two men on one end and pushed by two men on the other end. in 1480 the city walls were rebuilt with a weekly tax of 5d. per head. in schools, there was a renaissance of learning from original sources of knowledge written in greek and rebirth of the greek pursuit of the truth and scientific spirit of inquiry. there was a striking increase in the number of schools founded by wealthy merchants or town guilds. every cathedral, monastery, and college had a grammar school. merchants tended to send their sons to private boarding schools, instead of having them tutored at home as did the nobility. well-to-do parents still sent sons to live in the house of some noble to serve them as pages in return for being educated with the noble's son by the household priest. they often wore their master's coat of arms and became their squires as part of their knightly education. sometimes girls were sent to live in another house to receive education from a tutor there under the supervision of the lady of the house. every man, free or villein, could send his sons and daughters to school. in every village, there were some who could read and write. in 1428, lincoln's inn required barristers normally resident in london and the county of middlesex to remain in residence and pay commons during the periods between sessions of court and during vacations, so that the formal education of students would be continuous. in 1442, a similar requirement was extended to all members. the book "sir gawain and the green knight" was written about an incident in the court of king arthur and queen guenevere in which a green knight challenges arthur's knights to live up to their reputation for valor and awesome deeds. the knight gawain answers the challenge, but is shown that he could be false and cowardly when death seemed to be imminent. thereafter, he wears a green girdle around his waist to remind him not to be proud. other literature read included "london lickpenny", a satire on london and its expensive services and products, "fall of princes" by john lydgate, social history by thomas hoccleve, "the cuckoo and the nightengale", and "the flower and leaf" on morality as secular common sense. king james i of scotland wrote a book about how he fell in love. chaucer, cicero, ovid, and aesops's fables were widely read. malory's new version of the arthurian stories was popular. margery kempe wrote the first true autobiography. she was a woman who had a normal married life with children, but one day had visions and voices which led her to leave her husband to take up a life of wandering and praying in holy possession. there were religious folk ballads such as "the cherry tree carol", about the command of jesus from mary's womb for a cherry tree to bend down so that mary could have some cherries from it. the common people developed ballads, e.g. about their love of the forest, their wish to hunt, and their hatred of the forest laws. about 30% of londoners could read english. books were bought in london in such quantities by 1403 that the craft organizations of text-letter writers, illuminators, bookbinders, and book sellers was sanctioned by ordinance. "unto the honorable lords, and wise, the mayor and aldermen of the city of london, pray very humbly all the good folks, freemen of the said city, of the trades of writers of text-letter, limners [illuminator of books], and other folks of london who are wont to bind and to sell books, that it may please your great sagenesses to grant unto them that they may elect yearly two reputable men, the one a limner, the other a textwriter, to be wardens of the said trades, and that the names of the wardens so elected may be presented each year before the mayor for the time being, and they be there sworn well and diligently to oversee that good rule and governance is had and exercised by all folks of the same trades in all works unto the said trades pertaining, to the praise and good fame of the loyal good men of the said trades and to the shame and blame of the bad and disloyal men of the same. and that the same wardens may call together all the men of the said trades honorably and peacefully when need shall be, as well for the good rule and governance of the said city as of the trades aforesaid. and that the same wardens, in performing their due office, may present from time to time all the defaults of the said bad and disloyal men to the chamberlain at the guildhall for the time being, to the end that the same may there, according to the wise and prudent discretion of the governors of the said city, be corrected, punished, and duly redressed. and that all who are rebellious against the said wardens as to the survey and good rule of the same trades may be punished according to the general ordinance made as to rebellious persons in trades of the said city [fines and imprisonment]. and that it may please you to command that this petition, by your sagenesses granted, may be entered of record for time to come, for the love of god and as a work of charity." gutenberg's printing press, which used movable type of small blocks with letters on them, was brought to london in 1476 by a mercer: william caxton. it supplemented the text-writer and monastic copyist. it was a wood and iron frame with a mounted platform on which were placed small metal frames into which words with small letters of lead had been set up. each line of text had to be carried from the type case to the press. beside the press were pots filled with ink and inking balls. when enough lines of type to make a page had been assembled on the press, the balls would be dipped in ink and drawn over the type. then a sheet of paper would be placed on the form and a lever pulled to press the paper against the type. linen usually replaced the more expensive parchment for the book pages. the printing press made books more accessible to all literate people. caxton printed major english texts and some translations from french and latin. he commended different books to various kinds of readers, for instance, for gentlemen who understand gentleness and science, or for ladies and gentlewomen, or to all good folk. there were many cook books in use. there were convex eyeglasses for reading and concave ones for distance to correct near-sightedness. the first public library in london was established from a bequest in a will in 1423. many carols were sung at the christian festival of christmas. ballads were sung on many features of social life of this age of disorder, hatred of sheriffs, but faith in the king. the legend of robin hood was popular, as were town miracle plays on leading incidents of the bible and morality plays. vintners portrayed the miracle of cana where water was turned into wine and goldsmiths ornately dressed the three kings coming from the east. in york, the building of noah's ark was performed by the shipwrights and the flood performed by the fishery and mariners. short pantomimes and disguising, forerunners of costume parties, were good recreation. games of cards became popular as soon as cards were introduced. the king, queen, and jack were dressed in contemporary clothes. men bowled, kicked footballs, and played tennis. in london, christmas was celebrated with masques and mummings. there was a great tree in the main market place and evergreen decorations in churches, houses, and streets. there were also games, dances, street bonfires in front of building doors, and general relaxation of social controls. sometimes there was drunken licentiousness and revelry, with peasants gathering together to make demands of lords for the best of his goods. may day was celebrated with crowns and garlands of spring flowers. the village may day pageant was often presided over by robin hood and maid marion. people turned to mysticism to escape from the everyday violent world. they read works of mystics, such as "scale of perfection" and "cloud of unknowing", the latter describing how one may better know god. they believed in magic and sorcery, but had no religious enthusiasm because the church was engendering more disrespect. monks and nuns had long ago resigned spiritual leadership to the friars; now the friars too lost much of their good reputation. the monks became used to life with many servants such as cooks, butlers, bakers, brewers, barbers, laundresses, tailors, carpenters, and farm hands. the austerity of their diet had vanished. the schedule of divine services was no longer followed by many and the fostering of learning was abandoned. into monasteries drifted the lazy and miserable. nunneries had become aristocratic boarding houses. the practice of taking sanctuary was abused; criminals and debtors sought it and were allowed to overstay the 40-day restriction and to leave at night to commit robberies. there were numerous chaplains, who were ordained because they received pay from private persons for saying masses for the dead; they had much leisure time for mischief because they had to forego wife and family. church courts became corrupt, but jealously guarded their jurisdiction from temporal court encroachment. peter's pence was no longer paid by the people, so the burden of papal exaction fell wholly on the clergy. but the church was rich and powerful, paying almost a third of the whole taxation of the nation and forming a majority in the house of lords. many families had kinsmen in the clergy. even the lowest cleric or clerk could read and write in latin. people relied on saint's days as reference points in the year, because they did not know dates of the year. but townspeople knew the hour and minute of each day, because clocks driven by a descending weight on a cord were in all towns and in the halls of the well-to-do. this increased the sense of punctuality and lifted standards of efficiency. these weight-driven clocks replaced water clocks, which had a problem of water freezing, and sandclocks, which could measure only small time intervals. a linguistic unity and national pride was developing. london english became the norm and predominated over rural dialects. important news was announced and spread by word of mouth in market squares and sometimes in churches. as usual, traders provided one of the best sources of news; they maintained an informal network of speedy messengers and accurate reports because political changes so affected their ventures. news also came from peddlers, who visited villages and farms to sell items that could not be bought in the local village. these often included scissors, eyeglasses, colored handkerchiefs, calendars, fancy leather goods, watches, and clocks. peddling was fairly profitable because of the lack of competition. but peddlers were often viewed as tramps and suspected of engaging in robbery as well as peddling. a royal post service was established by relays of mounted messengers. the first route was between london and the scottish border, where there were frequent battles for land between the scotch and english. the inland roads from town to town were still rough and without signs. a horseman could make up to 40 miles a day. common carriers took passengers and parcels from various towns to london on scheduled journeys. now the common yeoman could order goods from the london market, communicate readily with friends in london, and receive news of the world frequently. trade with london was so great and the common carrier so efficient in transporting goods that the medieval fair began to decline. first the grocers and then the mercers refused to allow their members to sell goods at fairs. there was much highway robbery. most goods were still transported by boats along the coasts, with trading at the ports. embroidery was exported. imported were timber, pitch, tar, potash [for cloth dying], furs, silk, satin, gold cloth, damask cloth, furred gowns, gems, fruit, spices, and sugar. imports were restricted by national policy for the purpose of protecting native industries. english single-masted ships began to be replaced by two or three masted ships with high pointed bows to resist waves and sails enabling the ship to sail closer to the wind. 200 tuns was the usual carrying capacity. the increase in trade made piracy, even by merchants, profitable and frequent until merchant vessels began sailing in groups for their mutual protection. the astrolabe, which took altitude of sun and stars, was used for navigation. consuls were appointed to assist english traders abroad. henry iv appointed the first admiral of the entire nation and resolved to create a national fleet of warships instead of using merchant ships. in 1417, the war navy had 27 ships. in 1421, portsmouth was fortified as a naval base. henry v issued the orders that formed the basic law of english admiralty and appointed surgeons to the navy and army. for defense of the nation, especially the safeguard of the seas, parliament allotted the king for life, 3s. for every tun of wine imported and an additional 3s. for every tun of sweet wine imported. from about 1413, tunnage on wine [tax per tun] and poundage [tax per pound] on merchandise were duties on goods of merchants which were regularly granted by parliament to the king for life for upkeep of the navy. before this time, such duties had been sporadic and temporary. the most common ailments were eye problems, aching teeth, festering ears, joint swelling and sudden paralysis of the bowels. epidemics broke out occasionally in the towns in the summers. the plague swept london in 1467 and the nation in 1407, 1445, and 1471. leprosy disappeared. infirmaries were supported by a tax of the king levied on nearby counties. the walls, ditches, gutters, sewers, and bridges on waterways and the coast were kept in repair by laborers hired by commissions appointed by the chancellor. those who benefited from these waterways were taxed for the repairs in proportion to their use thereof. alabaster was sculptured into tombs surmounted with a recumbent effigy of the deceased, and effigies of mourners on the sides. few townsmen choose to face death alone and planned memorial masses to be sung to lift their souls beyond purgatory. chantries were built by wealthy men for this purpose. chemical experimentation was still thought to be akin to sorcery, so was forbidden by king henry iv in 1404. gold was minted into coins: noble, half noble, and farthing. king henry iv lost power to the commons and the lords because he needed revenue from taxes and as a usurper king, he did not carry the natural authority of a king. the commons acquired the right to elect its own speaker. the lords who helped the usurpation felt they should share the natural power of the kingship. the council became the instrument of the lords. also, the commons gained power compared to the nobility because many nobles had died in war. the consent of the commons to legislation became so usual that the justices declared that it was necessary. the commons began to see itself as representative of the entire commons of the realm instead of just their own counties. its members had the freedom to consider and debate every matter of public interest, foreign or domestic, except for church matters. the commons, the poorest of the three estates, established an exclusive right to originate all money grants to the king in 1407. the speaker of the commons announced its money grant to the king only on the last day of the parliamentary session, after the answers to its petitions had been declared, and after the lords had agreed to the money grant. it tied its grants by rule rather than just practice to certain appropriations. for instance, tunnage and poundage were appropriated for naval defenses. wool customs went to the maintenance of calais, a port on the continent, and defense of the nation. it also put the petitions in statutory form, called "bills", to be enacted after consideration and amendment by all without alteration. each house had a right to deliberate in privacy. in the commons, members spoke in the order in which they stood up bareheaded. any member of parliament or either house or the king could initiate a bill. both houses had the power to amend or reject a bill. there were conferences between select committees of both houses to settle their differences. the commons required the appointment of auditors to audit the king's accounts to ensure past grants had been spent according to their purpose. it forced the king's council appointees to be approved by parliament and to be paid salaries. about 1430, kings' councilors were required to take an oath not to accept gifts of land, not to maintain private suits, not to reveal secrets, and not to neglect the king's business. a quorum was fixed and rules made for removal from the council. for the next fifty years, the council was responsible both to the king and to parliament. this was the first encroachment on the king's right to summon, prorogue, or dismiss a parliament at his pleasure, determine an agenda of parliament, veto or amend its bills, exercise his discretion as to which lords he summoned to parliament, and create new peers by letters patent [official public letters]. parliament was affected by the factionalism of the times. the speaker of the commons was often an officer of some great lord. in 1426, the retainers of the barons in parliament were forbidden to bear arms, so they appeared with clubs on their shoulders. when the clubs were forbidden, they came with stones concealed in their clothing. kings created dukes and marquesses to be peers. a duke was given creation money or allowance of 40 pounds a year. a marquess was given 35 pounds. these new positions could not descend to an heiress, unlike a barony or earldom. an earl was given 20 pounds, which probably took the place of his one-third from the county. king henry vi gave the title of viscount to several people; it had an allowance of 13.3 pounds and was above baron. it allowed them to be peers. there were about 55 peers. henry vi also began the offices of keeper of the great seal, keeper of the privy seal, chamberlain, steward of the household, to be great offices of state besides chancellor and treasurer. they were members of his council along with the archbishops of canterbury and york and about 15 other members. in king edward iv's reign, the king's retinue had about 16 knights, 160 squires, 240 yeomen, clerks, grooms, and stablemen. the suitable annual expense of the household of the king was 13,000 pounds for his retinue of about 516 people, a duke 4,000 pounds for about 230 people, a marquess 3,000 pounds for about 224 people, an earl 2,000 pounds for about 130 people, a viscount 1,000 pounds for about 84 people, a baron 500 pounds for about 26 people, a banneret [a knight made in the field, who had a banner] 200 pounds for about 24 people, a knight bachelor 100 pounds for about 16 people, and a squire 50 pounds for about 16 people. of a squire's 50 pounds, about 25 pounds were spent in food, repairs and furniture 5, on horses, hay, and carriage 4, on clothes, alms and oblations 4, wages 9, livery of dress 3, and the rest on hounds and the charges of harvest and hay time. many servants of the household of the country gentleman were poor relations. they might by education and accomplishment rise into the service of a baron who could take him to court, where he could make his fortune. barons' households also included steward, chaplains, treasurer, accountants, chamberlain, carvers, servers, cupbearers, pages, and even chancellor. they were given wages and clothing allowances and had meals in the hall at tables according to their degree. the authority of the king's privy seal had become a great office of state which transmitted the king's wishes to the chancery and exchequer, rather than the king's personal instrument for sealing documents. now the king used a signet kept by his secretary as his personal seal. edward iv made the household office of secretary, who had custody the king's signet seal, a public office. the secretary was generally a member of the council. edward iv invented the benevolence, a gift wrung from wealthy subjects. king edward iv introduced an elaborate spy system, the use of the rack to torture people to give information, and other interferences with justice, all of which the tudor sovereigns later used. torture was used to discover facts, especially about coconspirators, rather than to elicit a confession, as on the continent. it was only used on prisoners held in the tower of london involved in state trials and could only be authorized by the king's closest councilors in virtue of the royal prerogative. the rack stretched the supine body by the wrists and legs with increasing agony at the joints until the limbs were dislocated. some victims were permanently crippled by it; others died on it. most told what they knew, often at the very sight of the rack. torture was forbidden in the common law, which favored an accusatorial system, in which the accuser had to prove guilt, rather than an inquisitional system, in which the accused had to prove innocence. edward iv applied martial law to ordinary cases of high treason by extending the jurisdiction of the politicallyappointed high constable of england to these cases, thus depriving the accused of trial by jury. he executed many for treason and never restored their forfeited land to their families, as had been the usual practice. king richard iii prohibited the seizure of goods before conviction of felony. he also liberated the unfree villeins on royal estates. it was declared under parliamentary authority that there was a preference for the crown to pass to a king's eldest son, and to his male issue after him. formerly, a man could ascend to the throne through his female ancestry as well. the law the forcible entry statute is expanded to include peaceful entry with forcible holding after the justices arrived and to forcible holding with departure before the justices arrived. penalties are triple damages, fine, and ransom to the king. a forceful possession lasting three years is exempt. by common law, a tenant could not take away buildings or fixtures he built on land because it would be wasteful. this applied to agricultural fixtures, but not to other trade fixtures. also at common law, if a person had enjoyed light next to his property for at least 20 years, no one could build up the adjacent land so that the light would be blocked. women of age fourteen or over shall have livery of their lands and tenements by inheritance without question or difficulty. purposely cutting out another's tongue or putting out another's eyes is a felony, the penalty for which is loss of all property]. no one may keep swans unless he has lands and tenements of the estate of freehold to a yearly value of 67s., because swans of the king, lords, knights, and esquires have been stolen by yeomen and husbandmen. the wage ceiling for servants is: bailiff of agriculture 23s.4d. per year, and clothing up to 5s., with meat and drink; chief peasant, a carter, chief shepherd 20s. and clothing up to 4s., with meat and drink; common servant of agriculture 15s., and clothing up to 3s.4d.; woman servant 10s., and clothing up to 4s., with meat and drink; infant under fourteen years 6s., and clothing up to 3s., with meat and drink. such as deserve less or where there is a custom of less, that lesser amount shall be given. for laborers at harvest time: mower 4d. with meat and drink or 6d. without; reaper or carter: 3d. with or 5d. without; woman laborer and other laborers: 2d with and 4d. without. the ceiling wage rate for craftsmen per day is: free mason or master carpenter 4d. with meat and drink or 5d. without; master tiler or slater, rough mason, and mesne [intermediary] carpenter and other artificiers in building 3d. with meat and drink or 4d. without; every other laborer 2d. with meat and drink or 3d. without. in winter the respective wages were less: mason category: 3d. with or 4d. without; master tiler category: 2d. with or 4d. without; others: 1d. with or 3d. without meat and drink. any servant of agriculture who is serving a term with a master and covenants to serve another man at the end of this term and that other man shall notify the master by the middle of his term so he can get a replacement worker. otherwise, the servant shall continue to serve the first master. no man or woman may put their son or daughter to serve as an apprentice in a craft within any borough, but may send the child to school, unless he or she has land or rent to the value of 20s. per year.this was because of scarcity of laborers and other servants of agriculture. no laborer may be hired by the week. masons may no longer congregate yearly, because it has led to violation of the statute of laborers. no games may be played by laborers because they lead to [gambling and] murders and robberies. apparel worn must be appropriate to one's status to preserve the industry of agriculture. the following list of classes shows the lowest class, which could wear certain apparel: 1. -lords gold cloth, gold corses, sable fur, purple silk 2. -knights velvet, branched satin, ermine fur 3. -esquires and gentlemen with possessions to the value of 800s. per year, daughters of a person who has possessions to the value of 2,000s. a year damask, silk, kerchiefs up to 5s. in value. 4. -esquires and gentlemen with possessions to the yearly value of 800s. 40 pounds fur of martron or letuse, gold or silver girdles, silk corse not made in the nation, kerchief up to 3s.4d in value 5. -men with possessions of the yearly value of 40s. excluding the above three classes fustian, bustian, scarlet cloth in grain 6. -men with possessions under the yearly value of 40s. excluding the first three classes black or white lamb fur, stuffing of wool, cotton, or cadas. 7. -yeomen cloth up to the value of 2s., hose up to the value of 14s., a girdle with silver, kerchief up to 12d. 8. -servants of agriculture, laborer, servant, country craftsman none of the above clothes gowns and jackets must cover the entire trunk of the body, including the private parts. shoes may not have pikes over two inches. every town shall have at its cost a common balance with weights according to the standard of the exchequer. all citizens may weigh goods for free. all cloth to be sold shall be sealed according to this measure. there is a standard bushel of grain throughout the nation. there are standard measures for plain tile, roof tile, and gutter tile throughout the nation. no gold or silver may be taken out of the nation. the price of silver is fixed at 30s. for a pound, to increase the value of silver coinage, which has become scarce due to its higher value when in plate or masse. a designee of the king will inspect and seal cloth with lead to prevent deceit. cloth may not be tacked together before inspection. no cloth may be sold until sealed. heads of arrows shall be hardened at the points with steel and marked with the mark of the arrowsmith who made it, so they are not faulty. shoemakers and cordwainers may tan their leather, but all leather must be inspected and marked by a town official before it is sold. to prevent deceitful tanning, cordwainers shall not tan leather. tanners who make a notorious default in leather which is found by a cordwainer shall make a forfeiture. defective embroidery for sale shall be forfeited. no fishing net may be fastened or tacked to posts, boats, or anchors, but may be used by hand, so that fish are preserved and vessels may pass. no one may import any articles which could be made in the nation, including silks, bows, woolen cloths, iron and hardware goods, harness and saddlery, except printed books. the following merchandise shall not be brought into the nation already wrought: woolen cloth or caps, silk laces, ribbons, fringes, and embroidery, gold laces, saddles, stirrups, harnesses, spurs, bridles, gridirons, locks, hammers, fire tongs, dripping pans, dice, tennis balls, points, purses, gloves, girdles, harness for girdles of iron steel or of tin, any thing wrought of any treated leather, towed furs, shoes, galoshes, corks, knives, daggers, woodknives, thick blunt needles, sheers for tailors, scissors, razors, sheaths, playing cards, pins, pattens [wooden shoes on iron supports worn in wet weather], pack needles, painted ware, forcers, caskets, rings of copper or of gilt sheet metal, chaffing dishes, hanging candlesticks, chaffing balls, mass bells, rings for curtains, ladles, skimmers, counterfeit felt hat moulds, water pitchers with wide spouts, hats, brushes, cards for wool, white iron wire, upon pain of their forfeiture. one half this forfeiture goes to the king and the other half to the person seizing the wares. no sheep may be exported, because being shorn elsewhere would deprive the king of customs. no wheat, rye, or barley may be imported unless the prices are such that national agriculture is not hurt. clothmakers must pay their laborers, such as carders and spinsters, in current coin and not in pins and girdles and the like. the term "freemen" in the magna carta includes women. the election of a knight from a county to go to parliament shall be proclaimed by the sheriff in the full county so all may attend and none shall be commanded to do something else at that time. election is to be by majority of the votes and its results will be sealed and sent to parliament. electors and electees to parliament must reside in the county or be citizens or burgesses of a borough. to be an elector to parliament, a knight must reside in the county and have a freehold of land or tenements there of the value of at least 40s. per year, because participation in elections of too many people of little substance or worth had led to homicides, assaults, and feuds. (these "yeomen" were about one sixth of the population. most former electors and every leaseholder and every copyholder were now excluded. those elected for parliament were still gentry chosen by substantial freeholders.) london ordinances forbade placing rubbish or dung in the thames river or any town ditch or casting water or anything else out of a window. the roads were maintained with tolls on carts and horses bringing victuals or grains into the city and on merchandise unloaded from ships at the port. no carter shall drive his cart more quickly when it is unloaded than when it is loaded. no pie bakers shall sell beef pies as venison pies, or make any meat pie with entrails. to assist the poor, bread and ale shall be sold by the farthing. desertion by a soldier is penalized by forfeiture of all land and property. the common law held that a bailee is entitled to possession against all persons except the owner of the bailed property. former justice sir thomas littleton wrote a legal textbook describing tenancies in dower; the tenures of socage, knight's service, serjeanty, and burgage; estates in fee simple, fee tail, and fee conditional; inheritance and alienation of land. for instance, "also, if feoffment be made upon such condition, that if the feoffor pay to the feofee at a certain day, etc., 800s. forty pounds of money, that then the feoffor may reenter, etc., in this case the feoffee is called tenant in mortgage, ... and if he doth not pay, then the land which he puts in pledge upon condition for the payment of the money is gone from him for ever, and so dead as to the tenant, etc." joint tenants are distinguished from tenants in common by littleton thus: "joint-tenants are, as if a man be seised of certain lands or tenements, etc., and thereof enfeoffeth two, or three, or four, or more, to have and to hold to them (and to their heirs, or letteth to them) for term of their lives, or for term of another's life; by force of which feoffment or lease they are seised, such are joint-tenants. ... and it is to be understood, that the nature of joint-tenancy is, that he that surviveth shall have solely the entire tenancy, according to such estate as he hath, ..." "tenants in common are they that have lands or tenements in fee-simple, fee-tail, or for term of life, etc., the which have such lands and tenements by several title, and not by joint title, and neither of them knoweth thereof his severalty, but they ought by the law to occupy such lands or tenements in common pro indiviso [undivided], to take the profits in common. ...as if a man enfeoff two joint-tenants in fee, and the one of them alien that which to him belongeth to another in fee, now the other joint-tenant and the alienee are tenants in common, because they are in such tenements by several titles, ..." there are legal maxims and customs of ancient origin which have become well established and known though not written down as statutes. some delineated by christopher st. germain in "doctor and student" in 1518 are: 1. -the spouse of a deceased person takes all personal and real chattels of the deceased. 2. -for inheritance of land, if there are no descendant children, the brothers and sisters take alike, and if there are none, the next blood kin of the whole blood take, and if none, the land escheats to the lord. land may never ascend from a son to his father or mother. 3. -a child born before espousals is a bastard and may not inherit, even if his father is the husband. 4. -if a middle brother purchases lands in fee and dies without heirs of his body, his eldest brother takes his lands and not the younger brother. the next possible heir in line is the younger brother, and the next after him, the father's brother. 5. -for lands held in socage, if the heir is under 14, the next friend to the heir, to whom inheritance may not descend, shall have the ward of his body and lands until the heir is 14, at which time the heir may enter. 6. -for lands held by knight's service, if the heir is under 14, then the lord shall have the ward and marriage of the heir until the heir is 21, if male, or 14 (changed to 16 in 1285), if female. when of age, the heir shall pay relief. by the right of marriage, a lord could give his ward-heirs in marriage to a suitable match. should this match be refused, its value, determined by a judge, was forfeited to the lord. 7. -a lease for a term of years is a real chattel rather than a free tenement, and may pass without livery of seisin. 8. -he who has possession of land, though it is by disseisin, has right against all men but against him who has right. 9. -if a tenant is past due his rent, the lord may distrain his beasts which are on the land. 10. -all birds, fowls, and wild beasts of the forest and warren are excepted out of the law and custom of property. no property may be had of them unless they are tame. however, the eggs of hawks and herons and the like belong to the man whose land they are on. 11. if a man steals goods to the value of 12d., or above, it is felony, and he shall die for it. if it is under the value of 12d., then it is but petty larceny, and he shall not die for it, but shall be punished at the discretion of the judges. this not apply to goods taken from the person, which is robbery, a felony punishable by death. 12. if the son is attainted [convicted of treason or felony with the death penalty and forfeiture of all lands and goods] in the life of the father, and after he purchases his -charter of pardon of the king, and after the father dies; in this case the land shall escheat to the lord of the fee, insomuch that though he has a younger brother, yet the land shall not descend to him: for by the attainder of the elder brother the blood is corrupt, and the father in the law died -without heir. 13. a man declared outlaw forfeits his profits from land and his goods to the king. 14. he who is arraigned upon an indictment of felony shall be admitted, in favor of life, to challenge thirty-five inquirers (three whole inquests would have thirty-six) peremptorily. with cause, he may challenge as many as he has cause to challenge if he can prove it. such peremptory challenge shall not be admitted in a private suit. 15. an accessory shall not be put to answer before the principal. 16. if a man commands another to commit a trespass, and he does it, the one who made the command is a trespasser. 17. the land of every man is in the law enclosed from other, though it lies in the open field, and a trespasser in it may be brought to court. 18. every man is bound to make recompense for such hurt as his beasts do in the growing grain or grass of his neighbor, though he didn't know that they were there. 19. if two titles are concurrent together, the oldest title shall be preferred. 20. he who recovers debt or damages in the king's court when the person charged is not in custody, may within a year after the judgment take the body of the defendant, and commit him to prison until he has paid the debt and damages. 21. if the demandant or plaintiff, hanging his writ (writ pending in court), will enter into the thing demanded, his writ shall abate. 22. by the alienation of the tenant, hanging the writ, or his entry into religion, or if he is made a knight, or she is a woman and takes a husband hanging the writ, the writ shall not abate. 23. the king may disseise no man and no man may disseise the king, nor pull any reversion or remainder out of him. judicial procedure the prohibition against maintenance was given penalties in 1406 of 100s. per person for a knight or lower giving livery of cloth or hats, and of 40s. for the receiver of such. a person who brought such suit to court was to be given half the penalty. the justices of assize and king's bench were authorized to inquire about such practices. the statute explicitly included ladies and any writing, oath, or promise as well as indenture. excepted were guilds, fraternities, and craftsmen of cities and boroughs which were founded on a good purpose; universities; the mayor and sheriffs of london; and also lords, knights, and esquires in time of war. a penalty of one year in prison without bail was given. in 1468, there was a penalty of 100s. per livery to the giver of such, 100s. per month to the retainer or taker of such, and 100s. per month to the person retained. still this law was seldom obeyed. people took grievances outside the confines of the rigid common law to the chancellor, who could give equitable remedies under authority of a statute of 1285 (described in chapter 8). the chancery heard many cases of breach of faith in the "use", a form of trust in which three parties were involved: the holder of land, feofees to whom the holder had made it over by conveyance or "bargain and sale", and the beneficiary or receiver of the profits of the land, who was often the holder, his children, relatives, friends, an institution, or a corporation. this system of using land had been created by the friars to get around the prohibition against holding property. lords and gentry quickly adopted it. the advantages of the use were that 1) there was no legal restriction to will away the beneficial interest of the use although the land itself could not be conveyed by will; 2) it was hard for the king to collect feudal incidents because the feoffees were often unknown 3) the original holder was protected from forfeiture of his land in case of conviction of treason if the crown went to someone he had not supported. chancery gave a remedy for dishonest or defaulting feofees. chancery also provided the equitable relief of specific performance in disputes over agreements, for instance, conveyance of certain land, whereas the common law courts awarded only monetary damages by the writ of covenant. chancery ordered accounts to be made in matters of foreign trade because the common law courts were limited to accounts pursuant to transactions made within the nation. it also involved itself in the administration of assets and accounting of partners to each other. the chancellor took jurisdiction of cases of debt, detinue, and account which had been decided in other courts with oath-helping by the defendant. he did not trust the reliance on friends of the defendant swearing that his statement made in his defense was true. an important evidentiary difference between procedures of the chancery and the common law courts was that the chancellor could orally question the plaintiff and the defendant under oath. he also could order persons to appear at his court by subpoena, under pain of punishment, such as a heavy fine. the court of common pleas had three types of jurisdiction: 1) common law jurisdiction between person and person, including actions regarding land, which was exclusive, 2) personal actions of debt, detinue, account and covenant, and 3) mixed actions, both personal and regarding land, e.g. ejectment. it had shared jurisdiction with the court of the king's bench in maintenance, conspiracy, other breaches of statute, trespass, trespass on the case, and their derivatives. most of its business had to do with recovery of debt, from 40s. to thousands of pounds. whereas the characteristic award of the common law courts was seisin of land or monetary damages, chancery often enjoined certain action. because malicious suits were a problem, the chancery identified such suits and issued injunctions against taking them to any court. the chancery was given jurisdiction by statute over men of great power taking by force women who had lands and tenements or goods and not setting them free unless they bound themselves to pay great sums to the offenders or to marry them. a statute also gave chancery jurisdiction over servants taking their masters' goods at his death. chancery could issue writs of habeas corpus [produce the body] to bring a person before a court or judge. justices of the peace, appointed by the crown, investigated all riots and arrested rioters, by authority of statute. if they had departed, the justices certified the case to the king. the case was then set for trial first before the king and his council and then at the king's bench. if the suspected rioters did not appear at either trial, they could be convicted for default of appearance. if a riot was not investigated and the rioters sought, the justice of the peace nearest forfeited 2,000s. justices of the peace were not paid. for complex cases and criminal cases with defendants of high social status, they deferred to the justices of assize, who rode on circuit once or twice a year. since there was no requirement of legal knowledge for a justice of the peace, many referred to the "boke of the justice of the peas" compiled about 1422 for them to use. manor courts still formally admitted new tenants, registered titles, sales of land and exchanges of land, and commutation of services, enrolled leases and rules of succession, settled boundary disputes, and regulated the village agriculture. all attorneys shall be examined by the royal justices for their learnedness in the law and, at their discretion, those that are good and virtuous shall be received to make any suit in any royal court. these attorneys shall be sworn to serve well and truly in their offices. attorneys may plead on behalf of parties in the hundred courts. a qualification for jurors was to have an estate to one's own use or one of whom other persons had estates of fee simple, fee tail, or freehold in lands and tenements, which were at least 40s. per year in value. in a plea of land worth at least 40s. yearly or a personal plea with relief sought at least 800s., jurors had to have land in the bailiwick to the value of at least 400s., because perjury was considered less likely in the more sufficient men. in criminal cases, there were many complaints made that the same men being on the grand assize and petty assize was unfair because prejudicial. so it became possible for a defendant to challenge an indictor for cause before the indictor was put on the petty assize. then the petty assize came to be drawn from the country at large and was a true petty or trial jury. jurors were separated from witnesses. in the 1700s, the principle was established that a juror should not sit on a case of which he had previous knowledge. justices of the peace were to have lands worth 267s. yearly, because those with less had used the office for extortion and lost the respect and obedience of the people. a sheriff was not to arrest, but to transfer indictments to the justices of the peace of the county. he had to reside in his bailiwick. the sheriff could be sued for misfeasance such as bribery in the king's court. impeachment was replaced with bill of attainder during the swift succession of parliaments during the civil war. this was a more rapid and efficient technique of bringing down unpopular ministers or political foes. there was no introduction of evidence, nor opportunity for the person accused to defend himself, nor any court procedure, as there was with impeachment. an example of a case of common law decided by court of king's bench is russell's case (1482) as follows: in the king's bench one thomas russell and alice his wife brought a writ of trespass for goods taken from alice while she was single. the defendant appeared and pleaded not guilty but was found guilty by a jury at nisi prius, which assessed the damages at 20 pounds. before the case was next to be heard in the king's court an injunction issued out of the chancery to the plaintiffs not to proceed to judgment, on pain of 100 pounds, and for a long time judgment was not asked for. then hussey cjkb. asked spelman and fincham, who appeared for the plaintiff if they wanted to ask for judgment according to the verdict. fincham [p]: we would ask for judgment, except for fear of the penalty provided for in the injunction, for fear that our client will be imprisoned by the chancellor if he disobeys. fairfax, jkb: he can ask for judgment in spite of the injunction, for if it is addressed to the plaintiff his attorney can ask for judgment, and vice versa. hussey, cjkb: we have consulted together on this matter among ourselves and we see no harm which can come to the plaintiff if he proceeds to judgment. the law will not make him pay the penalty provided in the injunction. if the chancellor wants to imprison him he must send him to the fleet prison, and, as soon as you are there you will inform us and we shall issue a habeas corpus returnable before us, and when you appear before us we shall discharge you, so you will not come to much harm, and we shall do all we can for you. nevertheless, fairfax said he would go to the chancellor and ask him if he would discharge the injunction. and they asked for judgment and it was held that they should recover their damages as assessed by the jury, but they would not give judgment for damages caused by the vexation the plaintiff suffered through the chancery injunction. and they said that if the chancellor would not discharge the injunction, they would give judgment if the plaintiff would ask for it. an example of a petition to chancery in the 1400s is hulkere v. alcote, as follows: to the right reverend father in god and gracious lord bishop of bath, chancellor of england, your poor and continual bedwoman lucy hulkere, widow of westminster, most meekly and piteously beseeches: that whereas she has sued for many years in the king's bench and in the common pleas for withholding diverse charters and evidences of land, leaving and delaying her dower of the manor of manthorpe in lincolnshire and also of the manor of gildenburton in northamptonshire, together with the withdrawing of her true goods which her husband gave her on his deathbed to the value of 100 pounds and more, under record of notary, sued against harry alcote and elizabeth of the foresaid gildenburton within the same county of northampton. and by collusion and fickle counsel of the foresaid harry and elizabeth his mother there was led and shown for him within the common pleas a false release, sealed, to void and exclude all her true suit by record of true clerks and attorneys of the aforesaid common pleas. of the which false release proved she has a copy to show. [all this is] to her great hindrance and perpetual destruction unless she have help and remedy by your righteous and gracious lordship in this matter at this time. that it please your noble grace and pity graciously to grant a writ subpoena to command the foresaid henry alcote and elizabeth alcote to come before your presence by a certain day by you limited in all haste that they may come to westminster to answer to this matter abovesaid, for love of god and a deed of charity, considering graciously that the foresaid harry alcote, with another fellow of his affinity who is not lately hanged for a thief in franceled her into a garden at gildenburton and put her down on the ground, laying upon her body a board and a summer saddle and great stones upon the board, the foresaid harry alcote sitting across her feet and the other at her head for to have slain her and murdered her, and by grace of our lady her motherin-law out walking heard a piteous voice crying and by her goodness she was saved and delivered, and otherwise would be dead. pledges to prosecute: john devenshire of berdevyle in essex and james kelom of london. returnable in michaelmas term. chapter 11 the times: 1485-1509 henry tudor and other exiles defeated and killed richard iii on bosworth field, which ends the civil war of the roses between the lancaster and york factions. as king, henry vii restored order to the nation. he was readily accepted as king because he was descended from the lancaster royal line and he married a woman from the york royal line. henry was intelligent and sensitive. he weighed alternatives and possible consequences before taking action. he was convinced by reason on what plans to make. in his reign of 24 years, henry applied himself diligently to the details of the work of government to make it work well. he strengthened the monarchy, shored up the legal system to work again, and provided a peace in the land in which a renaissance of the arts and sciences, culture, and the intellectual life could flourish. his primary strategy was enacting and enforcing statutes to shore up the undermined legal system, which includes the establishment of a new court: the court of the star chamber, to obtain punishment of persons whom juries were afraid to convict. it had no jury and no grand jury indictment. for speed and certainty, it tried people "ex officio": by virtue of its office. suspects were required to take an oath ex officio, by which they swore to truthfully answer all questions put to them. a man could not refuse to answer on the grounds of self-incrimination. the star chamber was the room in which the king's council had met since the 1300s. the most prevalent problems were: murder, robbery, rape or forced marriage of wealthy women, counterfeiting of coin, extortion, misdemeanors by sheriffs and escheators, bribing of sheriffs and jurors, perjury, livery and maintenance agreements, idleness, unlawful plays, and riots. interference with the course of justice was not committed only by lords on behalf of their retainers; men of humbler station were equally prone to help their friends in court or to give assistance in return for payment. rural juries were intimidated by the old baronage and their armed retinues. juries in municipal courts were subverted by gangs of townsmen. justices of the peace didn't enforce the laws. the agricultural work of the nation had been adversely affected. henry made policy with the advice of his council and had parliament enact it into legislation. he dominated parliament by having selected most of its members. many of his council were sons of burgesses and had been trained in universities. he chose competent and especially trusted men for his officers and commanders of castles and garrison. the fact that only the king had artillery deterred barons from revolting. also, the baronial forces were depleted due to the civil war of the roses. if henry thought a magnate was exercising his territorial power to the king's detriment, he confronted him with an army and forced him to bind his whole family in recognizances for large sums of money to ensure future good conduct. since the king had the authority to interpret these pledges, they were a formidable check on any activity which could be considered to be disloyal. the earl of kent, whose debts put him entirely at the king's mercy, was bound to "be seen daily once in the day within the king's house". henry also required recognizances from men of all classes, including clergy, captains of royal castles, and receivers of land. the higher nobility now consisted of about twenty families. the heavy fines by the star court put an end to conspiracies to defraud, champerty [an agreement with a litigant to pay costs of litigation for a share in the damages awarded], livery, and maintenance. the ties between the nobility and the justices of the peace had encouraged corruption of justice. so henry appointed many of the lesser gentry and attorneys as justices of the peace. also he appointed a few of his councilors as nonresident justices of the peace. there were a total of about thirty justices of the peace per county. their appointments were indefinite and most remained until retirement or death. henry instituted the yeomen of the guard to be his personal bodyguards night and day. many bills of attainder caused lords to lose their land to the king. most of these lords had been chronic disturbers of the peace. henry required retainers to be licensed, which system lasted until about 1600. henry was also known to exhaust the resources of barons he suspected of disloyalty by accepting their hospitality for himself and his household for an extended period of time. henry built up royal funds by using every available procedure of government to get money, by maximizing income from royal estates by transferring authority over them from the exchequer to knowledgeable receivers, and from forfeitures of land and property due to attainders of treason. he also personally reviewed all accounts and initialed every page, making sure that all payments were made. he regularly ordered all men with an income of 800s. [40 pounds] yearly from lands or revenue in hand to receive knighthoods, which were avoided by those who did not want to fight, or pay a high fee. as a result, the crown became rich and therefore powerful. henry's queen, elizabeth, was a good influence on his character. her active beneficence was a counteracting influence to his avaricious predisposition. when henry and his queen traveled through the nation, they often stopped to talk to the common people. they sometimes gave away money, such as to a man who had lost his hand. henry paid for an intelligent boy he met to go to school. henry had the first paper mill erected in the nation. he fostered the reading of books and the study of roman law, the classics, and the bible. he had his own library and gave books to other libraries. the age of entry to university was between 13 and 16. it took four years' study of grammar, logic, and rhetoric to achieve the bachelor of arts degree and another five before a master could begin a specialized study of the civil law, canon law, theology, or medicine. humanist studies were espoused by individual scholars at the three centers of higher learning: oxford university, cambridge university, and the inns of court in london. the inns of court attracted the sons of gentry and merchants pursuing practical and social accomplishments. the text of "readings" to members of the inns survive from this time. in the legalistic climate of these times, attorneys were prosperous. the enclosure of land by hedges for sheep farming continued, especially by rich merchants who bought country land for this purpose. often this was land that had been under the plough. any villeins were given their freedom and they and the tenants at will were thrown off it immediately. that land held by copyholders of land who had only a life estate, was withheld from their sons. only freeholders and copyholders with the custom of the manor in their favor were secure against eviction. but they could be pressured to sell by tactics such as breeding rabbits or keeping geese on adjoining land to the detriment of their crops, or preventing them from taking their traditional short cuts across the now enclosed land to their fields. the real line of distinction between rural people was one of material means instead of legal status: free or unfree. on one extreme was the well-to-do yeoman farmer farming his own land. on the other extreme was the agricultural laborer working for wages. henry made several proclamations ordering certain enclosures to be destroyed and tillage to be restored. other land put to use for sheep breeding was waste land. there were three sheep to every person. the nearby woodlands no longer had wolves or lynx who could kill the sheep. bears and elk are also gone.there were still deer, wild boar, wildcats and wild cattle in vast forests for the lords to hunt. wood was used for houses, arms, carts, bridges, and ships. the villages were still isolated from each other, so that a visitor from miles away was treated as warily as a foreigner. most people lived and died where they had been born. a person's dialect indicated his place of origin. the life of the village still revolved around the church. in some parishes, its activities were highly organized, with different groups performing different functions. for example, the matrons looked after a certain altar; the maidens raised money for a chapel or saw to the gilding of the images; the older men collected money for church repair; and the younger men organized the church ales and the church plays. wills often left property or rents from leased land to the church. church cows and sheep given could be leased out to villagers. church buildings given could be leased out, turned over to the poor, used to brew ale or bake bread for church ales, or used in general as a place for church activities. church ales would usually a good source of income; alehouses would be closed during the ceremonies and parishioners would contribute malt for the ale and grain, eggs, butter, cheese, and fruits. the largest town, london, had a population of about 70,000. other towns had a population less than 20,000. the population was increasing, but did not reach the level of the period just before the black death. in most large towns, there were groups of tailors and hatmakers, glovers, and other leatherworkers. some towns had a specialization due to their proximity to the sources of raw materials, such as nails, cutlery, and effigies and altars. despite the spread of wool manufacturing to the countryside, there was a marked increase of industry and prosperity in the towns. the principal streets of the larger towns were paved with gravel. guild halls became important and imposing architecturally. a large area of london was taken up by walled gardens of the monasteries and large mansions. there were some houses of stone and timber and some mansions of brick and timber clustered around palaces. in these, bedrooms increased in number, with rich bed hangings, linen sheets, and bolsters. bedspreads were introduced. nightgowns were worn. fireplaces became usual in all the rooms. tapestries covered the walls. carpets were used in the private rooms. some of the great halls had tiled floors. the old trestle tables were replaced by tables with legs. benches and stools had backs to lean on. a long gallery was used for exercise, recreation such as music and dancing, and private conversations. women and men wore elaborate headdresses. on the outer periphery are taverns and brothels, both made of mud and straw. houses are beginning to be built outside the walls of london along the thames because the collapse of the power of the great feudal lords decreased the fear of an armed attack on london. the merchants introduced this idea of living at a distance from the place of work so that they could escape living in the narrow, damp, and dark lanes of the city and have more light and space. indeed no baronial army ever threatened the king again. east of london were cattle pastures, flour mills, bakers, cloth-fulling mills, lime burners, brick and tile makers, bell founders, and ship repairing. there was a drawbridge on the south part of london bridge for defense and to let ships through. water sports were played on the thames such as tilting at each other with lances from different boats. the tailors' and linen armorers' guild received a charter in 1503 from the king as the "merchant tailors" to use all wares and merchandise, especially wool cloth, as well wholesale as retail, throughout the nation. some schooling was now being made compulsory in certain trades; the goldsmiths' company made a rule that all apprentices had to be able to read and write. there are guilds of ironmongers, salters, and haberdashers [hats and caps] a yeoman was the second-rank person of some importance, below a knight, below a gentleman, below a full member of a guild. in london, it meant the journeyman or second adult in a small workshop. these yeomen had their own fraternities and were often on strike. some yeomen in the large london industries, e.g. goldsmiths, tailors, cloth workers, who had served an apprenticeship started their own businesses in london suburbs outside the jurisdiction of their craft to search them. the merchant adventurers created a london fellowship confederacy to make membership of their society and compliance with its regulations binding on all cloth traders and to deal with common interests and difficulties such as taxation, relations with rulers, and dangers at sea. they made and enforced trading rules, chartered fleets, and organized armed convoys when the seas were unsafe and coordinated policies with henry vii. membership could be bought for a large fee or gained by apprenticeship or by being the son of a member. tudor government was paternalistic, curtailing cutthroat competition, fixing prices and wages, and licensing production under grants of monopoly to achieve a stable and contented society and a fair living for all. foreign trade was revived because it was a period of comparative peace. the nation sought to sell as much as possible to foreign nations and to buy at little as possible and thereby increase its wealth in gold and silver, which could be used for currency. ships weighed 200 tons and had twice the cargo space they had previously. their bows were more pointed and their high prows made them better able to withstand gales. the mariners' compass with a pivoting needle and circular dial with a scale was introduced. the scale gave precision to directions. ships had three masts. on the first was a square sail. on the second was a square sail with a small rectangular sail above it. on the third was a three cornered lateen sail. these sails make it possible to sail in almost any direction. this opened the seas of the world to navigation. at this time navigators kept their knowledge and expertise secret from others. adventurous seamen went on voyages of discovery, such as john cabot to north america in 1497, following italian christopher columbus' discovery of the new world in 1492. ferdinand magellan of portugal circumnavigated the world in 1519, proving uncontrovertedly that the earth was spherical rather than flat. theologians had to admit that jerusalem was not the center of the world. sailors overcame their fear of tumbling into one of the openings into hell that they believed were far out into the atlantic ocean and ceased to believe that a red sunset in the morning was due to a reflection from hell. seamen could venture forth into the darkness of the broad atlantic ocean with a fair expectation of finding their way home again. they gradually learned that there were no sea serpents or monsters that would devour foolhardy mariners. they learned to endure months at sea on a diet of salt beef, beans, biscuits, and stale water and the bare deck for a bed. but there were still mutinies and disobedient pilots. mortality rates among seamen were high. there are more navy ships, and they have some cannon. the blast furnace was introduced in the iron industry. a blast of hot air was constantly forced from a stove into the lower part of the furnace which was heating at high temperature a mixture of the iron ore and a reducing agent that combined with the oxygen released. after the iron was extracted, it was allowed to harden and then reheated and hammered on an anvil to shape it and to force out the hard, brittle impurities. blast furnace heat was maintained by bellows worked by water wheels. alchemists sought to make gold from the baser metals and to make a substance that would give them immortality. there was some thought that suffocation in mines, caverns, wells, and cellars was not due to evil spirits, but to bad air such as caused by "exhalation of metals". in 1502, german peter henlein invented the pocket watch and the mainspring inside it. there were morality plays in which the seven deadly sins: pride, covetousness, lust, anger, gluttony, envy, and sloth, fought the seven cardinal virtues: faith, hope, charity, prudence, temperance, justice, and strength, respectively, for the human soul. the play "everyman" demonstrates that every man can get to heaven only by being virtuous and doing good deeds in his lifetime. it emphasizes that death may come anytime to every man, when his deeds will be judged as to their goodness or sinfulness. card games were introduced. the legend of robin hood was written down. the commons gained the stature of the lords and statutes were regularly enacted by the "assent of the lords spiritual and temporal and the commons". the commons now assented instead merely requested enactments. the law royal proclamations clarifying, refining or amplifying the law had the force of parliamentary statutes. in 1486, the king proclaimed that "forasmuch as many of the king our sovereign lord's subjects [have] been disposed daily to hear feigned, contrived, and forged tidings and tales, and the same tidings and tales, neither dreading god nor his highness, utter and tell again as though they were true, to the great hurt of divers of his subjects and to his grievous displeasure: therefore, in eschewing of such untrue and forged tidings and tales, the king our said sovereign lord straitly chargeth and commandeth that no manner person, whatsoever he be, utter nor tell any such tidings or tales but he bring forth the same person the which was author and teller of the said tidings or tales, upon pain to be set on the pillory, there to stand as long as it shall be thought convenient to the mayor, bailiff, or other official of any city, borough, or town where it shall happen any such person to be taken and accused for any such telling or reporting of any such tidings or tales. furthermore the same our sovereign lord straitly chargeth and commandeth that all mayors, bailiffs, and other officers diligently search and inquire of all such persons tellers of such tidings and tales not bringing forth the author of the same, and them set on the pillory as it is above said." he also proclaimed in 1487 that no one, except peace officers, may carry a weapon, e.g. bows, arrows, or swords, in any town or city unless on a journey. he proclaimed in 1498 that no one may refuse to receive silver pennies or other lawful coin as payment regardless of their condition as clipped, worn, thin, or old, on pain of imprisonment and further punishment. a statute provided that: lords holding castles, manors, lands and tenements by knight's service of the king shall have a writ of right for wardship of the body as well as of the land of any minor heir of a deceased person who had the use [beneficial enjoyment of a trust] of the land for himself and his heirs as if the land had been in the possession of the deceased person. and if such an heir is of age, he shall pay relief to the lord as if he had inherited possession of the land. an heir in ward shall have an action of waste against his lord as if his ancestor had died seised of the land. that is, lands of "those who use" shall be liable for execution of his debt and to the chief lord for his relief and heriot, and if he is a bondsman, they may be seized by the lord. the king tried to retain the benefits of feudal incidents on land by this statute of uses, but attorneys sought to circumvent it by drafting elaborate and technical instruments to convey land free of feudal burdens. any woman who has an estate in dower, or for a term of life, or in [fee] tail, jointly with her husband, or only to herself, or to her use, in any manors, lands, tenements, or other hereditaments of the inheritance or purchase of her husband, or given to the said husband and wife in tail, or for term of life, by any of the ancestors of the said husband, or by any other person seised to the use of the said husband, or of his ancestors, who, by herself or with any after taken husband; discontinue, alienate, release, confirm with warranty or, by collusion, allow any recovery of the same against them or any other seised to their use, such action shall be void. then, the person to whom the interest, title, or inheritance would go after the death of such woman may enter and possess such premises. this does not affect the common law that a woman who is single or remarried may give, sell, or make discontinuance of any lands for the term of her life only. all deeds of gift of goods and chattels made of trust, to the use of the giver [grantor and beneficiary of trust], to defraud creditors are void. it is a felony to carry off against her will, a woman with lands and tenements or movable goods, or who is heir-apparent to an ancestor. this includes taking, procuring, abetting, or knowingly receiving a woman taken against her will. a vagabond, idle, or suspected person shall be put in the stocks for three days with only bread and water, and then be put out of the town. if he returns, he shall spend six days in the stocks. (a few years later this was changed to one and three days, respectively.) every beggar who is not able to work, shall return to the hundred where he last dwelled, is best known, or was born and stay there. no one may take pheasants or partridges by net snares or other devices from his own warren [breeding ground], upon the freehold of any other person, or else forfeit 200s., one half to the owner of the land and the other half to the suer. no one may take eggs of any falcon, hawk, or swan out of their nest, whether it is on his land or any other man's land, on pain of imprisonment for one year and fine at the king's will, one half to the king, and the other half to the holder of the land, or owner of the swan. no man shall bear any english hawk, but shall have a certificate for any imported hawk, on pain for forfeiture of such. no one shall drive falcons or hawks from their customary breeding place to another place to breed or slay any for hurting him, or else forfeit 200s. after examination by a justice of the peace, one half going to the king and one half to the suer. any person without a forest of his own who has a net device with which to catch deer shall pay 200s. for each month of possession. anyone stalking a deer with beasts anywhere not in his own forest shall forfeit 200s. anyone taking any heron by device other than a hawk or long bow shall forfeit 6s.8d. no one shall take a young heron from its nest or pay 10s. for each such heron. two justices may decide such an issue, and one tenth of the fine shall go to them. no man shall shoot a crossbow except in defense of his house, other than a lord or one having 2,667s. of land because their use had resulted in too many deer being killed. (the longbow was not forbidden.) no beasts may be slaughtered or cut up by butchers within the walls of a town, or pay 12d. for every ox and 8d. for every cow or other beast, so that people will not be annoyed and distempered by foul air, which may cause them sickness. no tanner may be a currier [dressed, dyed, and finished tanned leather] and no currier may be a tanner. no shoemaker [cordwainer] may be a currier and no currier may be a shoemaker. no currier shall curry hides which have not been tanned. no tanner shall sell other than red leather. no tanner may sell a hide before it is dried. no tanner may tan sheepskins. no long bow shall be sold over the price of 3s.4d. good wood for making bows may be imported without paying customs. no grained cloth of the finest making shall be sold for more than 16s., nor any other colored cloth for more than 11s. per yard, or else forfeit 40s. for every yard so sold. no hat shall be sold for more than 20d. and no cap shall be sold for more than 2s.8d., or else forfeit 40s. for each so sold. silver may not be sold or used for any use but goldsmithery or amending of plate to make it good as sterling, so that there will be enough silver with which to make coinage. each feather bed, bolster, or pillow for sale shall be stuffed with one type of stuffing, that is, dry pulled feathers or with clean down alone, and with no sealed feathers nor marsh grass, nor any other corrupt stuffings. each quilt, mattress, or cushion for sale shall be stuffed with one type of stuffing, that is, clean wool, or clean flocks alone, and with no horsehair, marsh grass, neatshair, deershair, or goatshair, which is wrought in lime fats and gives off an abominable and contagious odor when heated by a man's body, on pain of forfeiture of such. salmon shall be sold by standard volume butts and barrels. large salmon shall be sold without any small fish or broken-bellied salmon and the small fish shall be packed by themselves only, or else forfeit 6s.8d. herring shall be sold at standard volumes. the herring shall be as good in the middle and in every part of the package as at the ends of the package, or else forfeit 3s.4d. eels shall be sold at standard volumes, and good eels shall not be mixed with lesser quality eels, or else forfeit 10s. the fish shall be packed in the manner prescribed or else forfeit 3s.4d. for each vessel. fustians shall always be shorn with the long shear, so that it can be worn for at least two years. if an iron or anything else used to dress such injures the cloth so that it wears out after four months, 20s. shall be forfeited for each default, one half to the king and the other half to the suer. pewter and brass ware for sale shall be of the quality of that of london and marked by its maker, on pain of forfeiture of such, and may be sold only at open fairs and markets or in the seller's home, or else forfeit 200s. if such false ware is sold, its maker shall forfeit its value, one half to the king and one half to the searchers. anyone using false weights of such wares shall forfeit 20s., one half to the king and one half to the suer, or if he cannot pay this fine, to be put in the stocks until market day and then be put in the pillory all the market time. no alien nor denizen [foreigner allowed to reside in the nation with certain rights and privileges] may carry out of the nation any raw wool or any woolen cloth which has not been barbed, rowed, and shorn. silk ribbons, laces, and girdles of silk may not be imported, since they can be made in the nation. no one shall import wine into the nation, but on english ships, or else forfeit the wine, one half to the king and one half to the seizer of the wine. no one may take out of the nation any [male] horse or any mare worth more than 6s.8s. or under the age of three years, upon pain of forfeiture of such. however, a denizen may take a horse for his own use and not to sell. this is to stop losing horses needed for defense of the nation and to stop the price of a horse from going up. freemen of london may go to fairs and markets with wares to sell, despite the london ordinance to the contrary. merchants residing in the nation but outside london shall have free access to foreign markets without exaction taken of more than 133s. sterling by the confederacy of london merchants, which have increased their fee so much, 400s., that merchants not in the confederacy have been driven to sell their goods in london for less than they would get at a foreign market. exacting more is punishable by a fine of 400s. and damages to the grieved party of ten times the excess amount taken. for the privilege of selling merchandise, a duty of scavage shall be taken of merchant aliens, but not of denizens. any town official who allows disturbing of a person trying to sell his merchandise because he has not paid scavage, shall pay a fine of 400s. coin clipped or diminished shall not be current in payment, but may be converted at the king's mint into plate or bullion. anyone refusing to take coins with only normal wear may be imprisoned by the mayor, sheriff, bailiff, constable or other chief officer. new coins, which have a circle or inscription around the outer edge, will be deemed clipped if this circle or inscription is interfered with. the penalty for usury is placement in the pillory, imprisonment for half a year, and a fine of 400s. (the penalty was later changed to one half thereof.) lawbooks in use at the inns of court included "the books of magna carta with diverse old statutes", "doctor and student" by st. germain, "grand abridgment" by fitzherbert, and "new natura brevium" by lombard. judicial procedure this statute made changes in the judicial process: the chancellor, treasurer, keeper of the king's privy seal, or two of them, with a bishop selected by them, and a temporal lord of the king's council selected by them, and the two chief justices of the king's bench shall constitute the court of the star chamber. it shall have the authority to call before it by writ or by privy seal anyone accused of "unlawful maintenances, giving of liveries, signs and tokens, and retainers by indentures, promises, oaths, writings, or otherwise embraceries of his subjects" and witnesses, and impose punishment as if convicted under due process of law. these laws shall now be enforced: if a town does not punish the murderer of a man murdered in the town, the town shall be punished. a town shall hold any man who wounds another in peril of death, until there is perfect knowledge whether the man hurt should live or die. upon viewing a dead body, the coroner should inquire of the killers, their abettors, and anyone present at the killing and certify these names. in addition, the murderer and accessories indicted shall be tried at the king's suit within a year of the murder, which trial will not be delayed until a private suit is taken. if acquitted at the king's suit, he shall go back to prison or let out with bail for the remainder of the year, in which time the slain man's wife or next of kin may sue. for every inquiry made upon viewing a slain body, coroners shall be paid 13s.4d. out of the goods of the slayer or from a town not taking a murderer, but letting him escape. if the coroner does not make inquiry upon viewing a dead body, he shall be fined 100s. to the king. if a party fails to appear for trial after a justice has taken bail from him, a record of such shall be sent to the king. henry sat on the star chamber. up to 1600, it heard many cases of forgery, perjury, riot, maintenance, fraud, libel, and conspiracy. it could mete out any punishment, except death or any dismemberment. this included life imprisonment, fines, pillory, whipping, branding, and mutilation. if a justice of the peace does not act on any person's complaint, that person may take that complaint to another justice of the peace, and if there is no remedy then, he may take his complaint to a justice of assize, and if there is not remedy then, he may take his complaint to the king or the chancellor. there shall then be inquiry into why the other justices did not remedy the situation. if it is found that they were in default in executing the laws, they shall forfeit their commissions and be punished according to their demerits. justices of the peace shall make inquiry of all offenses in unlawful retaining, examine all suspects, and certify them to the king's bench for trial there or in the king's council, and the latter might also proceed against suspects on its own initiative on information given. perjury committed by unlawful maintenance, embracing, or corruption of officers, or in the chancery, or before the king's council, shall be punished in the discretion of the chancellor, treasurer, both the chief justices, and the clerk of the rolls. the star chamber, chancellor, king's bench and king and council have the power to examine all defendants, by oath or otherwise, to adjudge them convicted or attainted. they can also be found guilty by confession, examination, or otherwise. if a defendant denied doing the acts of which he is convicted, he was subject to an additional fine to the king and imprisonment. violations of statutes may be heard by the justices of assize or the justices of the peace, except treason, murder, and other felony. actions on the case shall be treated as expeditiously in the courts of the king's bench and common pleas as actions of trespass or debt. proclamation at four court terms of a levy of a fine shall be a final end to an issue of land, tenements, or other hereditaments and the decision shall bind persons and their heirs, whether they have knowledge or not of the decision, except for women-covert who were not parties, persons under the age of twenty-one, in prison, out of the nation, or not of whole mind, who are not parties. these may sue within five years of losing such condition. also, anyone not a party may claim a right, title, claim, or interest in the said lands, tenements, or other hereditaments at the time of such fine recorded, within five years after proclamations of the fine. a defendant who appeals a decision for the purpose of delaying execution of such shall pay costs and damages to the plaintiff for the delay. no sheriff, undersheriff, or county clerk shall enter any complaints in their books unless the complaining party is present. and no more complaints than the complaining party knows about shall be entered. the penalty is 40s. for each such false complaint, one half to the king and the other half to the suer after examination by a justice of the peace. this is to prevent extortion of defendants by false complaints. the justice shall certify this examination to the king, on pain of a fine of 40s. a bailiff of a hundred who does not do his duty to summon defendants shall pay a fine of 40s. for each such default, after examination by a justice of the peace. sheriffs' records of fines imposed and bailiffs' records of fines collected may be reviewed by a justice of the peace to examine for deceit. any sheriff allowing a prisoner to escape, whether from negligence or for a bribe, shall be fined, if the prisoner was indicted of high treason, at least 1,333s. for each escape. however, if the prisoner was in their keeping because of a suspicion of high treason, the fine shall be at least 800s.; and if indicted of murder or petite treason, at least 400s.; and if suspected of murder or petite treason, 200s.; and if suspected of other felonies, 100s. petite treason was that by a wife to her husband or a man to his lord. any person not responding to a summons for jury service shall be fined 12d. for the first default, and 2s. for the second, and double for each subsequent default. a pauper may sue in any court and be assigned a attorney at no cost to him. a justice of the peace to whom has been reported hunting by persons disguised with painted faces or visors or otherwise, may issue a warrant for the sheriff or other county officer to arrest such persons and bring them before the justice. such hunting in disguise or hunting at night or disobeying such warrant is a felony. this is to stop large mobs of disguised people from hunting together and then causing riots, robberies, and murders. benefit of clergy may be used only once, since this privilege has made clerics more bold in committing murder, rape, robbery, and theft. however, there will be no benefit of clergy in the case of murder of one's immediate lord, master, or sovereign. (this begins the gradual restriction over many years of benefit of clergy until it disappears. also, benefit of clergy was often disregarded in unpeaceful times.) for an issue of riot or unlawful assembly, the sheriff shall call 24 jurors, each of lands and tenements at least 20s. of charter land or freehold or 26s.8d. of copyhold or of both. for each default of the sheriff, he shall pay 400s. and if the jury acquits, then the justice, sheriff, and under-sheriff shall certify the names of any jurors maintained or embraced and their misdemeanors, or else forfeit 400s. any person proved to be a maintainer or embracer shall forfeit 400s. to the king and be committed to ward. the principal leaders of any riot or unlawful assembly shall be imprisoned and fined and be bound to the peace with sureties at a sum determined by the justices of the peace. if the riot is by forty people or heinous, the justices of peace shall certify such and send the record of conviction to the king. the king's steward, treasurer, and comptroller have authority to question by twelve discreet persons any servant of the king about making any confederacies, compassings, conspiracies, or imaginations with any other person to destroy or murder the king or one of his council or a lord. trial shall be by twelve men of the king's household and punishment as by felony in the common law. ohanges in the judicial process other than those made by statute were made by court decision. for instance, the royal justices decided that only the king could grant sanctuary for treason and not the church. after this, the church withdrew the right of sanctuary from second time offenders. the king's council has practically limited itself to cases in which the state has an interest, especially the maintenance of public order. chancery became an independent court rather than the arm of the king and his council. in chancery and the king's bench, the intellectual revival brought by humanism inspires novel procedures to be devised to meet current problems in disputed titles to land, inheritance, debt, breach of contract, promises to perform acts or services, deceit, nuisance, defamation, and the sale of goods. a new remedy is specific performance, that is, performance of an act rather than money damages. evidence is now taken from witnesses. various courts had overlapping jurisdiction. for instance, trespass could be brought in the court of common pleas because it was a civil action between two private persons. it could also be brought in the court of the king's bench because it broke the king's peace. it was advantageous for a party to sue for trespass in the king's court because there a defendant could be made to pay a fine to the king or be imprisoned, or declared outlaw if he did not appear at court. a wrongful step on the defendant's land, a wrongful touch to his person or chattels could be held to constitute sufficient force and an adequate breach of the king's peace to sustain a trespass action. trespass on the case did not require the element of force or of breach of the peace that the trespass offense requires. trespass on the case expands in usage to cover many types of situations. stemming from it is "assumpsit", which provided damages for breach of an oral agreement and for a written agreement without a seal. parliament's supremacy over all regular courts of law was firmly established and it was called "the high court of parliament", paradoxically, since it rarely came to function as a law court. when a land holder enfeoffs his land and tenements to people unknown to the remainderman in [fee] tail, so that he does not know who to sue, he may sue the receiver of the profits of the land and tenements for a remedy. and the receivers shall have the same advantages and defenses as the feoffees or as if they were tenants. and if any deceased person had the use for himself and his heirs, then any of his heirs shall have the same advantages and defenses as if his ancestor had died seised of the land and tenements. and all recoveries shall be good against all receivers and their heirs, and the feofees and their heirs, and the cofeoffees of the receivers and their heirs, as though the receivers were tenants indeed, or feofees to their use, or their heirs of the freehold of the land and tenements. if a person feoffs his land to other persons while retaining the use thereof for himself, it shall be treated as if he were still seised of the land. thus, relief and heriot will still be paid for land in socage. and debts and executions of judgments may be had upon the land and tenements. the penalty for not paying customs is double the value of the goods. the town of london shall have jurisdiction over flooding and unlawful fishing nets in that part of the thames river that flows next to it. the city of london shall have jurisdiction to enforce free passage of boats on the thames river in the city, interruption of which carries a fine of 400s., two-thirds to the king and one third to the suer. jurors impaneled in london shall be of lands, tenements, or goods and chattels, to the value of 133s. and if the case concerns debt or damages at least 133s, the jurors shall have lands, tenements, goods, or chattels, to the value of 333s. this is to curtail the perjury that has gone on with jurors of little substance, discretion, and reputation. a party grieved by a false verdict of any court in london may appeal to the hustings court of london, which hears common pleas before the mayor and aldermen. each of the twelve alderman shall pick from his ward four jurors of the substance of at least 2,000s. to be impaneled. if twenty-four of them find that the jurors of the petty jury has given an untrue verdict, each such juror shall pay a fine of at least 400s. and imprisonment not more than six months without release on bail or surety. however, if it is found that the verdict was true, then the grand jury may inquire if any juror was bribed. if so, such juror bribed and the defendant who bribed him shall each pay ten times the amount of the bribe to the plaintiff and be imprisoned not more than six months without release on bail or surety. the bishop's court in london had nine offenders a week by 1500. half of these cases were for adultery and sexual offenses, and the rest were for slander, blasphemy, missing church services, and breach of faith. punishment was penance by walking barefoot before the cross in the sunday procession dressed in a sheet and holding a candle. the following is an example of a case in the chancery court. "a subpoena was sued against sir william capell in chancery because the plaintiff in the subpoena had borrowed 60 pounds from him in plate, which he sold for 40 pounds, and was also bound by a statute-merchant to the aforesaid sir william in 80 pounds for payment of this money, and had also made a feoffment to certain persons of certain land and by indenture willed that if he paid the 60 pounds the feoffees should be feooffees to his use, but otherwise they should be feoffees to the use of the said sir william; and he did not pay the money and so sir william took the profits of the land and sued execution of the statute-merchant. kebell thought he could have this land in conscience, even though he had execution of the statute-merchant, because he does not have this land in return for the money in such a way that he is paid twice, but has it by way of penalty; and (the plaintiff) may bind himself to that, just as he may give the land away for nothing. if someone holds of me in return for one penny of rent, he may bind himself in 100 pounds for payment of this rent and if he fails i may have this penalty in conscience. the chancellor. when someone is beholden in another in a principal debt, the debtee cannot in conscience take anything in respect of this indebtedness except the principal debt, even if the debtor is bound to him in twenty penalties. kebell. in that case you might do much good to those who are bound in this court to keep the peace and are to forfeit their bonds. the chancellor. the sum which is forfeited for breaking the peace may be taken in conscience, for nothing can be well done nor can the realm be governed without peace. this court could not be held without peace. therefore it is right that whoever acts against the peace should be punished. and by breaking the peace a crime is committed, and therefore it is right that he should pay this forfeiture. (but the chancellor held in this case that the debtee may in conscience take so much of the penalty as represents his damage by the withholding of the debt.)" this is the case of the earl of suffolk v. berney in the common pleas court: " if the parker of a park licences a man to kill deer in the park, and he kills a deer by virtue of this licence, both of them commit trespass; for he has no authority to do this, his authority being to keep and not to give or sell. but if someone has a warrant to take a deer, and he is a gentleman, he may take company with him and hunt there for the same deer according to his degree (but not otherwise). and it was held that if a parker has a warrant for a deer, and by virtue of that he requests various people to help him kill this deer, everyone who goes with him may chase after it by licence from the parker by parol, without writing." an example of a manorial case is: "and they present that margaret edmond, who held of the lord according to the custom of the manor one cottage with curtilage, four acres of land and one acre of meadow lately in the tenure of william crosse, took as her husband a certain unknown outsider without the lord's licence. therefore she forfeited her estate in the aforesaid cottage and land, by reason of which there accrues to the lord as a heriot one heifer, price 4s. and thereupon william staunton came and took the said cottage, land and meadow from the lord, to hold to himself and his according to the custom of the manor, rendering 3s. therein to the lord yearly at the terms usual there, thus 3d. yearly of increment for rent. and he will give the lord 2s. in the name of heriot when it should accrue.. and he gives nothing to the lord as a fine, but he did fealty to the lord. another manorial case is: and that john mille, who held of the lord for the term of his life according to the custom of the aforesaid manor as of the part of thomas long, knight, one messuage and three yardlands of land there by the rent and services therein owed, has ended his last day since the last court, whereof there accrues to the lord as heriot one horse, price 10s. and that edith, the wife of the said john, claims to hold the aforesaid messuage and land with the appurtenances while she should keep herself single and chaste according to the custom of the aforesaid manor. and she did fealty to the lord. and she was admitted as tenant therein by the pledge of william spenser and john smyth, both for the matter and for repair of the aforesaid tenement etc."` chapter 12 the times: 1509-1558 renaissance humanism came into being in the nation. in this development, scholars in london, oxford, and cambridge emphasized the value of classical learning, especially platonism and the study of greek literature as the means of better understanding and writing. they studied the original greek texts and became disillusioned with the filtered interpretations of the church, for example of the bible and aristotle. there had long been displeasure with the priests of the church. they were supposed to preach four times yearly, visit the sick, say the daily liturgies, and hear confessions at least yearly. but there were many lapses. many were not celibate, and some openly lived with a woman and had children. complaints about them included not residing within their parish community, doing other work such as raising crops, and taking too much in probate, mortuary fees, and marriage fees. probate fees had risen from at most 5s. to 60s. in the last hundred years. mortuary fees ranged from 1/3 to 1/9 of a deceased person's goods. sanctuary was abused. people objected to the right of arrest by ecclesiastical authorities. also, most parish priests did not have a theology degree or even a bachelor's degree, as did many laymen. in fact, many laymen were better educated than the parish priests. no one other than a laborer was illiterate in the towns. humanist grammar [secondary] schools were established in london by merchants and guilds. in 1510, the founder and dean of st. paul's school placed its management in the hands of london "citizens of established reputation" because he had lost confidence in the good faith of priests and noblemen. the sons of the nobility, attorneys, and merchants were starting to go to grammar school now instead of being taught at home by a tutor. at school, they mingled with sons of yeomen, farmers, and tradesmen, who were usually poor. the usual age of entry was six or seven. classical latin and greek were taught and the literature of the best classical authors was read. secondary education teachers were expected to know latin and have studied the ancient philosophers, history, and geography. the method of teaching was for the teacher to read textbooks to the class from a prepared curriculum. the students were taught in latin and expected not to speak english in school. they learned how to read and to write latin, to develop and amplify a theme by logical analysis, and to essay on the same subject in the narrative, persuasive, argumentative, commending, consoling, and inciting styles. they had horn books with the alphabet and perhaps a biblical verse on them. this was a piece of wood with a paper on it held down by a sheet of transparent horn. they also learned arithmetic (solving arithmetical problems and casting accounts). disobedience incurred flogging by teacher as well as by parents. spare the rod and spoil the child was the philosophy. schools now guarded the morals and behavior of students. there were two week vacations at christmas and at easter. royal grammar books for english and latin were proclaimed by henry in 1543 to be the only grammar book authorized for students. in 1545, he proclaimed a certain primer of prayers in english to be the only one to be used by students. the first school of humanist studies arose in oxford with the foundation of corpus christi college in 1516 by bishop richard fox. it had the first permanent reader or professor in greek. the professor of humanity was to extirpate all barbarisms by the study of cicero, sallust, valerius maximus, and quintilian. the reader of theology was to read texts of the holy fathers but not those of their commentators. oxford university was granted a charter which put the greater part of the town under control of the chancellor and scholars. the mayor of oxford was required to take an oath at his election to maintain the privileges and customs of the university. roman law and other regius professorships were founded by the king at oxford and cambridge. teaching of undergraduates was the responsibility of the university rather than of the colleges, though some colleges had live-in teachers. most colleges were exclusively for graduate fellows, though this was beginning to change. the university took responsibility for the student's morals and behavior and tutors sometimes whipped the undergraduates. for young noblemen, a more important part of their education than going to university was travel on the continent with a tutor. this exposure to foreign fields was no longer readily available through war or pilgrimage. the purpose was practical to learn about foreign people and their languages, countries, and courts. knowledge of the terrain, resources, prosperity, and stability of their countries was particularly useful to a future diplomatic or political career. understanding of the celestial world began to change. contemporary thought was that the nature of all things was to remain at rest, so that movement and motion had to be explained by causes. the earth was stationary and the heavens were spherical and revolved around the earth every twenty-four hours. the universe was finite. the firmament extended outward in a series of rotating, crystalline, ethereal spheres to which were attached the various points of celestial geography. first came the circle of the moon. the sun orbited the earth. the fixed stars rotated on an outer firmament. finally, there was the abode of god and his heavenly hosts. different principles ruled the celestial world; it was orderly, stable, ageless, and enduring. but the world of man changed constantly due to its mixed four elements of air, earth, fire, and water each trying to disentangle itself from the others and seeking to find its natural location. the heavenly spheres could affect the destinies of men, such as through fate, fortune, intelligence, cherubim, seraphim, angels, and archangels. astrologers read the celestial signs and messages. then a seed of doubt was cast on this theory by nicholaus copernicus, a timid monk in poland, who found inconsistencies in ptolemy's work, but saw similarity in the movements of the earth and other planets. he inferred from the "wandering" planetary movements with loops that their motion could be explained simply if they were revolving in circular paths around the sun, rather than around the earth. in his book of 1543, he also expressed his belief that the earth also revolved around the sun. this idea so shocked the world that the word "revolution" became associated with radical change. he thought it more likely that the earth rotated than that the stars moved with great speed in their large orbits. he proposed that the earth spins on its own axis about once every twenty-four hours, with a spin axis at about a 23 1/2 degree tilt from the orbital axis, thus explaining a slow change in the overall appearances of the fixed stars which had been observed since the time of ptolemy. he deduced from astronomical measurements that the correct order of the planets from the sun was: mercury, venus, earth, mars, jupiter, and saturn. the church considered his ideas heretical because contradictory to its dogma that man and the earth were the center of the universe. a central sun evoked images of pagan practices of sun worship. news of new ideas in science traveled quickly to english scholars and professionals. the physicians of london were incorporated to oversee and govern the practice of medicine. medicine consisted largely of magical remedies of sorcerers and astrologers and herbal remedies administered by quacks. people still generally believed that disease was caused by witches and demons. a faculty of physicians was established at oxford and cambridge. a royal college of physicians was founded in london in 1518 by the king's physician. the college of physicians taught more practical medicine and anatomy than the universities. only graduates of the college of physicians or of oxford or cambridge were allowed to practice medicine or surgery. medical texts were hippocrates and galen. these viewed disease as only part of the process of nature without anything divine. they stressed empiricism, experience, collections of facts, evidences of the senses, and avoidance of philosophical speculations. some observations of hippocrates were: -"when sleep puts an end to delirium, it is a hopeful sign." -"when on a starvation diet, the patient should not be allowed to become fatigued." "old men usually have less illness than young ones, but such as they have last, as a rule, till death." "pleurisy, pneumonia, colds, sore throat, and headache are more likely to occur during winter seasons." "when one oversleeps, or fails to sleep, the condition suggests disease." hippocrates had asserted that madness was simply a disease of the brain and then galen had agreed and advocated merciful treatment of the insane. galen's great remedies were proper diet, exercise, massage, and bathing. he taught the importance of a good water supply and good drainage. he advised that baking bread in a large oven was superior to cooking in a small oven, over ashes, or in a pan in wholesomeness, digestibility, and flavor. greek medicinal doctrines were assumed, such as that preservation of the health of the body was dependent on air, food, drink, movement and repose, sleeping and waking, excretion and retention, and the passions. it was widely known that sleep was restorative and that bad news or worry could spoil one's digestion. an italian book of 1507 showed that post-mortem examinations could show cause of death by gallstones, heart disease, thrombosis of the veins, or abscesses. in 1540 began the practice of giving bodies of hanged felons to surgeons to dissect. this was to deter the commission of felony. there was some feeling that dissection was a sacrilege, that the practice of medicine was a form of sorcery, and that illness and disease should be dealt with by prayer and/or atonement because caused by sin, the wrath of god, or by the devil. food that was digested was thought to turn into a vapor which passed along the veins and was concreted as blood, flesh, and fat. after 1546, there was a book listing hundreds of drugs with preparation directions, but their use and application was by trial and error. flemish physician andreas vesalius, secretly dissected human corpses, finding them hanging on public gibbets or competing with dogs for those incompletely buried in cemeteries. he begged doctors to allow him to examine the bodies of their fatal cases. he ingratiated himself with judges who determined the time and place of execution of criminals. in 1543 he published the first finely detailed description of human anatomy. in it, there was no missing rib on one side of man, and this challenged the theory of the woman eve having been made from a rib of the man adam. in the 1540s, ambroise pare from france, a barber-surgeon who was the son of a servant, was an army surgeon. wounds at this time were treated with boiling oil and spurting vessels were closed by being seared with a red-hot iron. after he ran out of boiling oil, he observed that the soldiers without this treatment were healing better than those with this treatment. so he advocated ceasing the practice of cauterizing wounds. he also began tying arteries with cord to stop their bleeding after amputation many other surgical techniques. in switzerland, theophrastus paracelsus, an astrologer and alchemist who later became a physician, did not believe that humor imbalance caused disease nor in treatment by bloodletting or purging. he believed that there were external causes of disease, e.g. toxic matter in food, contagion, defective physical or mental constitution, cosmic influences differing with climate and country, or affliction sent providence. he urged that wounds be kept clean rather than given poultices. in 1530, he pioneered the application of chemistry to physiology, pathology, and the treatment of disease by starting clinical diagnosis and treatment of disease by highly specific medicines, instead of by cure-alls. for instance, he used alkalis to treat disease, such as gout, indicated by certain substances in the urine, which also started urinalysis. he perceived that syphilis was caused by contagion and used mercury to cure it. he found curative powers also in opium, sulphur, iron, and arsenic. opium was made by drying and cooking the capsule of the poppy and was one of the few really effective early drugs. paracelsus urged alchemists to try to prepare drugs from minerals for the relief of suffering. he claimed to acquire knowledge of cures through spiritual contacts to occult wisdom. he believed that a human being has an invisible body as well as a visible one and that it is closely attuned to imagination and the spiritual aspect of an individual. he noticed that one's attitudes and emotions, such as anger, could affect one's health. he sometimes used suggestion and signs to help a patient form mental images, which translated into cures. he saw insanity as illness instead of possession by evil spirits. students were beginning to read for the bar by their own study of the newly available printed texts, treatises, and collections of statute law and of cases, instead of listening in court and talking with attorneys. in 1523, anthony fitzherbert wrote "boke of husbandry", which set forth the most current methods of arable farming, giving details of tools and equipment, advice on capital outlay, methods of manuring, draining, ploughing, and rick-building. it was used by many constantly, and was often carried around in the pocket. this began a new way to disseminate new methods in agriculture. he also wrote a "boke of surveying", which relied on the perch rod and compass dial, and gave instruction on how to set down the results of a survey. in 1533, gemma frisius laid down the principles of topographical survey by triangulation. this improved the quality of surveys and produced accurate plots. geoffrey chaucer's "canterbury tales" was a popular book. through chaucer, london english became a national standard and the notion of "correct pronunciation" came into being.the discoveries and adventures of amerigo vespucci, a portuguese explorer, were widely read. the north and south american continents were named for him. london merchant guilds began to be identified mainly with hospitality and benevolence instead of being trading organizations. twelve great companies dominated city politics and effectively chose the mayor and aldermen. they were, in order of precedence, mercers, grocers, drapers, fishmongers, goldsmiths, skinners, tailors, haberdashers, ironmongers, salters, vintners, and the clothworkers (composed from leading fullers and shearmen). the leading men of these guilds were generally aldermen and the guilds acted like municipal committees of trade and manufactures. then they superintended the trade and manufactures of london much like a government department. they were called livery companies and categorized their memberships in three grades: mere membership, livery membership, and placement on the governing body. livery members were distinguished by having the clothing of the brotherhood [its livery] and all privileges, and proprietary and municipal rights, in the fullest degree. they generally had a right to a place at the company banquets. they were invited by the governing body, as a matter of favor, to other entertainments. these liverymen were usually those who had bought membership and paid higher fees because they were richer. their pensions were larger than those of mere members. those with mere membership were freemen who had only the simple freedom of the trade. the masters were usually householders. the journeymen, yeomanry, bachelors were simple freemen. most of these companies had almshouses attached to their halls for the impoverished, disabled, and elderly members and their widows and children. for instance, many members of the goldsmiths had been blinded by the fire and smoke of quicksilver and some members had been rendered crazed and infirm by working in that trade. the freedom and rights of citizenship of the city could only be obtained through membership in a livery company. a lesser guild, the leathersellers, absorbed the glovers, pursers, and pouchmakers, some of whom became wage earners of the leathersellers. but others of these craftsmen remained independent. the whittawyers, who treated horse, deer, and sheep hides with alum and oil, had become wage earners for the skinners. londoners went to the fields outside the city for recreation and games. when farmers enclosed some suburban common fields in 1514, a crowd of young men marched out to them and, crying "shovels and spades", uprooted the hedges and filled in the ditches, thus reclaiming the land for their traditional games. the last major riot in london was aroused by a speaker on may day in 1517 when a thousand disorderly young men, mostly apprentices, defied the curfew and looted shops and houses of aliens. a duke with two thousand soldiers put it down in mid-afternoon, after which the king executed fifteen of the rioters. many english migrated to london. there were ambitious young men and women hopeful of betterment through employment, apprenticeship, higher wages, or successful marriage. on the other hand, there were subsistence migrants forced to leave their homes for food, work, or somewhere to live. there was much social mobility. for instance, between 1551 and 1553, of 881 persons admitted as freemen of london, 46 were the sons of gentlemen, 136 the sons of yeomen, and 289 the sons of farm workers. london grew in population about twice as fast as the nation. there are 26 wards of london as of 1550. this is the number for the next four centuries. each ward has an alderman, a clerk, and a chief constable. there are also in each ward about 100 to 300 elected officials including prickers, benchers, blackbootmen, fewellers [keepers of greyhounds], scribes, a halter-cutter, introducers, upperspeakers, under speakers, butlers, porters, inquestmen, scavengers, constables, watchmen, a beadle, jurymen, and common councilmen. the wardmote had inquest jurisdiction over immorality or bad behavior such as vagrancy, delinquency, illegitimacy, and disputes. this contributed greatly to social stability. in 1546, henry ordered the london brothels closed. a small gaol was established in the clink district of southwark, giving the name "clink" to any small gaol. london ordinances required journeymen to work from 6 a.m. to 6 p.m. in winter, with a total of 90 minutes breaks for breakfast, dinner, and an afternoon drink, for 7d. in the summer they had to work for two hours longer for 8d. at its peak in the 1540s the court employed about 200 gentlemen, which was about half the peerage and one-fifth of the greater gentry. henry issued a proclamation ordering noblemen and gentlemen in london not employed by the court to return to their country homes to perform their service to the king. though there was much agreement on the faults of the church and the need to reform it, there were many disagreements on what philosophy of life should take the place of church teachings. the humanist thomas more was a university trained intellectual. his book "utopia", idealized an imaginary society living according to the principles of natural virtue. in it, everything is owned in common and there is no need for money. all believe that there is a god who created the world and all good things and who guides men, and that the soul is immortal. but otherwise people choose their religious beliefs and their priests. from this perspective, the practices of other christians, scholastic theologians, priests and monks, superstition, and ritual looked absurd. more encouraged a religious revival. aristotle's position that virtuous men would rule best is successfully debated against plato's position that intellectuals and philosophers would be the ideal rulers. more believed the new humanistic studies should be brought to women as well as to men. he had tutors teach all his children latin, greek, logic, theology, philosophy, mathematics, and astronomy from an early age. his eldest daughter margaret became a recognized scholar and translated his treatise on the lord's prayer. other high class women became highly educated. they voiced their opinions on religious matters. in the 1530s, the duchess of suffolk spoke out for reform of the clergy and against images, relics, shrines, pilgrimages, and services in latin. she and the countess of sussex supported ministers and established seminaries for the spread of the reformed faith. more pled for proportion between punishment and crime. he urged that theft no longer be punished by death because this only encouraged the thief to murder his victim to eliminate evidence of the theft. he opined that the purpose of punishment was to reform offenders. he advocated justice for the poor to the standard of justice received by the rich. erasmus, a former monk, visited the nation for a couple of years and argued that reason should prevail over religious belief. he wrote the book "in praise of folly", which noted man's elaborate pains in misdirected efforts to gain the wrong thing. for instance, it questioned what man would stick his head into the halter of marriage if he first weighed the inconveniences of that life? or what woman would ever embrace her husband if she foresaw or considered the dangers of childbirth and the drudgery of motherhood? childhood and senility are the most pleasant stages of life because ignorance is bliss. old age forgetfulness washes away the cares of the mind. a foolish and doting old man is freed from the miseries that torment the wise and has the chief joy of life: garrulousness. the seekers of wisdom are the farthest from happiness; they forget the human station to which they were born and use their arts as engines with which to attack nature. the least unhappy are those who approximate the naiveness of the beasts and who never attempt what is beyond men. as an example, is anyone happier than a moron or fool? their cheerful confusion of the mind frees the spirit from care and gives it many-sided delights. fools are free from the fear of death and from the pangs of conscience. they are not filled with vain worries and hopes. they are not troubled by the thousand cares to which this life is subject. they experience no shame, fear, ambition, envy, or love. in a world where men are mostly at odds, all agree in their attitude towards these innocents. they are sought after and sheltered; everyone permits them to do and say what they wish with impunity. however, the usual opinion is that nothing is more lamentable than madness. the christian religion has some kinship with folly, while it has none at all with wisdom. for proof of this, notice that children, old people, women, and fools take more delight than anyone else in holy and religious things, led no doubt solely by instinct. next, notice that the founders of religion have prized simplicity and have been the bitterest foes of learning. finally, no people act more foolishly than those who have been truly possessed with christian piety. they give away whatever is theirs; they overlook injuries, allow themselves to be cheated, make no distinction between friends and enemies, shun pleasure, and feast on hunger, vigils, tears, labors, and scorn. they disdain life, and utterly prefer death. in short, they have become altogether indifferent to ordinary interests, as if their souls lived elsewhere and not in their bodies. what is this, if not to be mad? the life of christians is run over with nonsense. they make elaborate funeral arrangements, with candles, mourners, singers, and pallbearers. they must think that their sight will be returned to them after they are dead, or that their corpses will fall ashamed at not being buried grandly. christian theologians, in order to prove a point, will pluck four or five words out from different places, even falsifying the sense of them if necessary, and disregard the fact that their context was relevant or even contradicted their points. they do this with such brazen skill that our attorneys are often jealous of them. attorney christopher st. german wrote the legal treatise "doctor and student", in which he deems the law of natural reason to be supreme and eternal. the law of god and the law of man, as enunciated by the church and royalty, merely supplement the law of natural reason and may change from time to time. examples of the law of reason are: it is good to be loved. evil is to be avoided. do onto others as you would have them do unto you. do nothing against the truth. live peacefully with others. justice is to be done to every man. no one is to wrong another. a trespasser should be punished. from these is deduced that a man should love his benefactor. it is lawful to put away force with force. it is lawful for every man to defend himself and his goods against an unlawful power. like his father, henry viii dominated parliament. he used this power to reform the church of england in the 1530's. the protestant reformation cause, started in germany in 1517 by martin luther posting his thesis, had become identified with henry's efforts to have his marriage of eighteen years to the virtuous catherine annulled so he could marry a much younger woman: anne and have a son. the end of his six successive wives was: annulled, beheaded, died; annulled, beheaded, survived. henry viii was egotistical, arrogant, and selfindulgent. this nature allowed him to declare himself the head of the church of england instead of the pope. henry used and then discarded officers of state. one such was thomas wolsey, the son of a town grazier [one who pastures cattle and rears them for market] and butcher, who was another supporter of classical learning. he rose through the church, the gateway to advancement in a diversity of occupations of clergy such as secretary, librarian, teacher, attorney, doctor, author, civil servant, diplomat, and statesman. he was a court priest when he aligned himself with henry, both of whom wanted power and glory and dressed extravagantly. but he was brilliant and more of a strategist than henry. wolsey called himself a reformer and started a purge of criminals, vagrants and prostitutes within london, bringing many before the council. but most of his reforming plans were not brought to fruition, but ended after his campaign resulted in more power for himself. wolsey rose to be chancellor to the king and also archbishop of york. as the representative of the pope for england, he exercised almost full papal authority there. but he controlled the church in england in the king's interest. he was second only to the king and he strengthened the crown by consolidating power and income that had been scattered among nobles and officeholders. he also came to control the many courts. wolsey centralized the church in england and dissolved the smaller monasteries, the proceeds of which he used to build colleges at oxford and his home town. he was an impartial and respected justice. when wolsey was not able to convince the pope to give henry an annulment of his marriage, henry dismissed him and took his property, shortly after which wolsey died on his way to be imprisoned in the tower to be tried for treason. thomas. cromwell, a top royal official, was a self-taught attorney, arbitrator, merchant, and accountant. he was the son of a clothworker/blacksmith/brewer/innkeeper, like wolsey, he was a natural orator. he drafted and had passed legislation that created a new church of england. he had all men swear an oath to the terms of the succession statute. thomas more, the successor chancellor to wolsey, was known for his honesty and was a highly respected man. more did not yield to henry's bullying for support for his statute declaring the succession to be vested in the children of his second marriage, and his statute declaring himself the supreme head of the church of england, instead of the pope. he did not expressly deny this supremacy statute, so was not guilty of treason under its terms. but silence did not save him. he was attainted for treason on specious grounds and beheaded. his conviction rested on the testimony of one perjured witness, who misquoted more as saying that parliament did not have the power to require assent to the supremacy statute because it was repugnant to the common law of christendom. henry ruled with an iron fist. in 1536, he issued a proclamation that "any rioters or those in an unlawful assembly shall return to their houses" or "we will proceed against them with all our royal force and destroy them and their wives and children." in 1538, he proclaimed that anyone hurting or maiming an officer while trying to make an arrest "shall lose and forfeit all their lands, goods, and chattel" and shall suffer perpetual imprisonment. moreover, if one murdered such an officer, he would suffer death without privilege of sanctuary or of clergy. in 1540, he proclaimed that there would be no shooting by handgun except on a shooting range. henry had parliament pass bills of attainder against many people. for the first time, harsh treatment of prisoners in the tower, such as placement in dungeons with little food, no bed, and no change of clothes, became almost a matter of policy. through his host of spies, cromwell heard what men said to their closest friends. words idly spoken were distorted into treasonable utterances. fear spread through the people. silence was a person's only possibility of safety. cromwell developed a technique for the management of the house of commons which lasted for generations. he promulgated books in defense of royal spiritual authority, which argued that canon law was not divine but merely human and that clerical authority had no foundation in the bible. a reformed english bible was put in all parish churches. reformers were licensed to preach. cromwell ordered sermons to be said which proclaimed the supremacy of the king. he instituted registers to record baptisms, marriages, and burials in every county, for the purpose of reducing disputes over descent and inheritance. he dissolved all the lesser monasteries. when cromwell procured a foreign wife for henry whom henry found unattractive, he was attainted and executed. henry now reconstructed his council to have a fixed membership, an official hierarchy based on rank, a secretariat, an official record, and formal powers to summon individuals before it by legal process. because it met in the king's privy lodgings, it was called the "privy council". it had an executive function and met daily instead of just during the terms of the westminster courts from late autumn to early summer. it communicated with the king through intermediaries, of whom the most important was the king's secretary. the judicial part of the council was the court of the star chamber, which met at westminster. when henry went to war in france, part of the council went with him, and part of it stayed to attend the queen regent. thomas cranmer, archbishop of canterbury, wrote the first english common book of prayer. with its use beginning in 1549, church services were to be held in english instead of latin. the celebration of the lord's supper was a communion among the parishioners and minister all sharing wine and bread. it replaced the mass, in which the priests were thought to perform a miraculous change of the substance of bread and wine into the body and blood of christ, which the priest then offered as a sacrifice for remission of pain or guilt. this reflected the blood sacrifice of christ dying on the cross. in the mass, only the priests drank the wine. the mass, miracles, the worship of saints, prayers for souls in purgatory, and pilgrimages to shrines such as that of thomas becket, were all to be discontinued. imprisonment or exile rather than death was made the penalty for heresy and blasphemy, and also for adultery. after the king dissolved the greater monasteries, he took and sold their ornaments, silver plate and jewelry, lead from roofs of their buildings, and finally much of the land itself. many maps of manors and lands were made at this time. three monasteries were converted into the first three treating hospitals in london, one for the diseased, one for the poor, and one, bethlehem (or "bedlam" for short), for the mentally ill. but there were still many poor, sick, blind, aged, and impotent people in the streets since the closure of the monasteries. in 1552, there were 2,100 people in need of relief, including 300 orphans, 600 sick or aged, 350 poor men overburdened with their children, 650 decayed householders, and 200 idle vagabonds. the poor often begged at parishes, where they spread disease. london then set up a poor relief scheme. the bridewell was established to set to work the idle, vagabonds, and prostitutes making feather bed ticks and wool-cards, drawing of wire, carding, knitting, and winding of silk. parishes were required to give money for the poor in 1563. other towns followed london's lead in levying a poor rate. henry used the proceeds from the sale of the monasteries for building many new palaces and wood ships for his navy. in war, these navy ships had heavy guns which could sink other ships. in peace time, these ships were hired out to traders. large ships were constructed in docks, made partly by digging and partly by building walls. in 1545, henry issued a proclamation ordering all vagabonds, ruffians, masterless men, and evil-disposed persons to serve him in his navy. the former land of the monasteries, about 30% of the country's land, was sold and resold, usually to great landowners, or leased. title deeds became important as attorneys sought the security that title could give. some land went to entrepreneurial cloth manufacturers, who converted the buildings for the manufacture of cloth. they bought the raw wool and hired craftsmen for every step of the manufacturing process to be done in one continuous process. this was faster than buying and selling the wool material between craftsmen who lived in different areas. also, it was more efficient because the amount of raw wool bought could be adjusted to the demand for cloth. many landowners now could live in towns exclusively off the rents of their rural land. rents were increased so much that tenants could not pay and were evicted. they usually became beggars or thieves. much of their former land was converted from crop raising to pasture for large herds of sheep. arable farming required many workers, whereas sheep farming required only one shepherd and herdsman. there were exceptional profits made from the export of wool cloth. but much raw wool was still exported. its price went up from 6s.8d. per tod [about 28 pounds] in 1340 to 20s.8d. in 1546. villeinage was now virtually extinct. but a lord could usually claim a small money-rent from the freeholder, sometimes a relief when his land was sold or passed at death, and occasionally a heriot from his heir. there was steady inflation. landlords made their leases short term so that they could raise rents as prices rose. copyholders gradually acquired a valuable right in their holdings: their rent became light less that a shilling an acre. the knights had 70% of the land, the nobles 10%, the church 10%, and king 5%. at least 85% of the population still lived in the country. rich traders built town or country houses in which the emphasis was on comfort and privacy. there was more furniture, bigger windows filled with glass, thick wallpaper, and formal gardens. use of thick, insulating wallpaper rose with the rise of paper mills. it was stenciled, hand-painted, or printed. some floors were tiled instead of stone or wood. they were still strewn with straw. the owners ate in a private dining room and slept in their own rooms with down quilts. their soap was white. they had clothing of white linen and white wool, leather slippers, and felt hats. men wore long tunics open at the neck and filled in with pleated linen and enormous puffed sleeves. the fortunes of landowners varied; some went into aristocratic debt by ostentatiously spending on building, clothes, food, and drink, and some became indebted by inefficient management. some had to sell their manors and dismiss their servants. all people generally had enough food because of the commercialization of agriculture. even the standard meal of the peasant was bread, bacon, cheese, and beer or cider, with beef about twice a week. also, roads were good enough for the transport of foodstuffs thereon. four-wheeled wagons for carrying people as well as goods. goods were also transported by the pulling of barges on the rivers from paths along the river. a plough with wheels was used as well as those without. henry made proclamations reminding people of the apparel laws, but they were difficult to enforce. henry also made a proclamation limiting the consumption of certain meat according to status. seven dishes were allowed to bishops, dukes, marquises, and earls; six to other temporal lords; five to justices, the king's council, sheriffs, and persons with an income of at least 200 pounds yearly or goods worth 2000 pounds; four to persons with an income of at least 100 pounds or goods worth 1000 pounds; and three dishes to persons with an income of at least 100 pounds or goods worth 500 pounds. there were limits on types of meat served, such as a maximum of one dish of great fowl such as crane, swan, and peacock; eight quail per dish; and twelve larks in a dish. people used tin or pewter dishes, platters, goblets, saucers, spoons, saltcellars, pots, and basins. they used soap to wash themselves, their clothes, and their dishes. a solid, waxy soap was from evaporating a mixture of goat fat, water, and ash high in potassium carbonate. they had bedcovers on their beds. cloth bore the mark of its weaver and came in many colors. cloth could be held together with pins that had a shank with a hook by which they were closed. they burned wood logs in the fireplaces in their houses. so much wood was used that young trees were required by statute to be given enough lateral space to spread their limbs and were not cut down until mature. the organ and the harp, precursor to the piano, were played. people went to barbers to cut their hair and to extract teeth. they went to people experienced with herbs, roots, and waters for treatment of skin conditions such as sores, cuts, burns, swellings, irritated eyes or scaly faces. for more complicated ailments, they went to physicians, who prescribed potions and medicines. they bought potions and medicines from apothecaries and pharmacists. the king, earls, who ruled counties, and barons, who had land and a place in the house of lords, still lived in the most comfort. the king's house had courtyards, gardens, orchards, wood-yards, tennis courts, and bowling alleys. the walls of the towns were manned by the citizens themselves, with police and watchmen at their disposal. in inns, travelers slept ten to a bed and there were many fleas and an occasional rat or mouse running through the rushes strewn on the floor. the inn provided a bed and ale, but travelers brought their own food. each slept with his purse under his pillow. in markets, sellers set up booths for their wares. they sold grain for making oatmeal or for sowing one's own ground. wine, butter, cheese, fish, chicken, and candles could also be bought. butchers bought killed sheep, lambs, calves, and pigs to cut up for selling. tanned leather was sold to girdlemakers and shoemakers. goods bought in markets were presumed not to be stolen, so that a purchaser could not be dispossessed of goods bought unless he had knowledge that they were stolen. the ruling group of the towns came to be composed mostly of merchants, manufacturers, attorneys, and physicians. some townswomen were independent traders. the governed class contained small master craftsmen and journeyman artisans, small traders, and dependent servants. the major streets of london were paved with stone, with a channel in the middle. more water conduits from hills, heaths, and springs were built to provide the citizens of london with more water. the sewers carried only surface water away. households were forbidden to use the sewers. privies emptied into cesspools. the merchant adventurers' fellowship brought virtually all adventurers under its control and organized and regulated the national cloth trade. it had a general court of the adventurers sitting in the london mercers' hall. various companies were granted monopolies for trade in certain areas of the world such as turkey, spain, france, venice, the baltic, and africa. these were regulated companies. that is they obtained complete control of a particular foreign market, but any merchant who cared to join the company, pay its dues, and obey its regulations, might share in the benefits of its monopoly. the companies generally confined trade to men who were primarily merchants and not shopkeepers. in 1553 explorer sebastian cabot formed the muscovy company, which was granted a monopoly in its charter for trade with north russia. it was oriented primarily to export english woolen cloth. it was the first company trading on a joint stock, which was arranged as a matter of convenience and safety. the risks were too great for any few individuals. it hired ships and assigned space to each member to ship his goods at his own risk. the dividend was returned to the subscribers of the capital they put in plus an appropriate share of any profits made on the voyage. the members began leaving their money with the company for the next voyage. a general stock grew up. in 1568 were the first industrial companies: mines royal, and mineral and battery works. the cloth, mining, iron, and woodcraft industries employed full-time workers on wages. in the ironworks and foundries, the furnace blowing engines were worked by water wheels or by a gear attached to donkeys or horses. the forge hammers were worked at first by levers and later by water wheels. the day and night hammering filled the neighborhood with their noise. land held in common was partitioned. there were leases of mansion houses, smaller dwelling houses, houses with a wharf having a crane, houses with a timber yard, houses with a garden, houses with a shed, shops, warehouses, cellars, and stables. lands with a dye-house or a brew-house were devised by will along with their dying or brewing implements. there were dairies making butter and cheese. citizens paid taxes to the king amounting to one tenth of their annual income from land or wages. merchants paid "forced loans" and benevolences. the national government was much centralized and had full-time workers on wages. a national commission of sewers continually surveyed walls, ditches, banks, gutters, sewers, ponds, bridges, rivers, streams, mills, locks, trenches, fishbreeding ponds, and flood gates. when low places were threatened with flooding, it hired laborers, bought timber, and hired carts with horses or oxen for necessary work. mayors of cities repaired water conduits and pipes under their cities' ground. the matchlock musket came into use, but did not replace the bow because its matchcord didn't remain lit in rainy weather. the matchlock was an improvement over the former musket because both hands could be used to hold and aim the matchlock musket because the powder was ignited by a device that touched a slow-burning cord to the powder when a trigger was pulled with one finger. after the break with rome, cooperation among villagers in church activities largely ceased. the altars and images previously taken care of by them disappeared and the paintings on the walls were covered with white or erased, and scripture texts put in their place. people now read the new bible, the "paraphrases" of erasmus, foxe's "book of martyrs", and the works of bishop jewel. the book of martyrs taught the duty and splendor of rising above all physical danger or suffering. the canon law of the church was abolished and its study prohibited. professorships of the civil law were founded at the two universities. the inns of court grew. attorneys had more work with the new laws passed to replace the church canons of the church. they played an important role in town government and many became wealthy. they acquired town houses in addition to their rural estates. church reforms included abolishing church sanctuaries. benefit of clergy was restricted more. parsons were allowed to marry. archbishops were selected by the king without involvement by the pope. decisions by archbishops in testamentary, matrimonial, and marriage annulment matters were appealable to the court of chancery instead of to the pope. the clergy's canons were subject to the king's approval. the control of the church added to the powers of the crown to summon and dissolve parliament, coin money, create peers [members of the house of lords who received individual writs of summons to parliament], pardon criminals, order the arrest of dangerous persons without customary process of law in times of likely insurrection, tax and call men to arms without the consent of parliament if the country were threatened with invasion. about 1550 there began indictments and executions for witchcraftery which lasted for about a century. one of the reasons for suspecting a woman to be a witch was that she lived alone, which was very unusual. henry ordered all alien anabaptists, who denied the validity of infant baptism, to leave the realm. the law offices may not be bought and sold, but only granted by justices of the royal courts. the king's proclamations shall be observed and kept as though they were acts of parliament. the penalty shall not be more than that stated in the proclamation, except for heresy. a person having land in socage or fee simple may will and devise his land by will or testament in writing. a person holding land by knight's service may will and devise by his last will and testament in writing part of his land to his wife and other parts of his land to his children, as long as 1/3 of entailed land is left to the king. anyone serving the king in war may alienate his lands for the performance of his will, and if he dies, his feoffees or executors shall have the wardship of his heir and land. a person who leases land for a term of years, even if by indenture or without a writing, may have a court remedy as do tenants of freehold for any expulsion by the lessor which is contrary to the lease, covenant, or agreement. these termers, their executors and assigns, shall hold and enjoy their terms against the lessors, their heirs and assigns. the lessor shall have a remedy for rents due or waste by a termer after recovering the land as well as if he had not recovered the land. a lord may distrain land within his fee for rents, customs, or services due without naming the tenant, because of the existence of secret feoffments and leases made by their tenants to unknown persons. anyone seised of land to the use or trust of other persons by reason of a will or conveyance shall be held to have lawful seisin and possession of the land, because by common law, land is not devisable by will or testament, yet land has been so conveyed, which has deprived married men of their courtesy, women of their dower, the king of the lands of persons attainted, the king of a year's profits from felons' lands, and lords of their escheats. (this was difficult to enforce.) a woman may not have both a jointure [promise of husband to wife of property or income for life after his death] and dower of her husband's land. (persons had purchased land to hold jointly with their wives) a sale of land must be in writing, sealed, and registered in its county with the clerk of that county. if the land is worth less than 40s. per year, the clerk is paid 12d. if the land exceeds 40s. yearly, the clerk is paid 2s.6d. an adult may lease his lands or tenements only by a writing under his seal for a term of years or a term of life, because many people who had taken leases of lands and tenements for a term of years or a term of lives had to spend a lot for repair and were then evicted by heirs of their lessors. a husband may not lease out his wife's land. no woman-covert, child, idiot, or person of insane memory may devise land by will or testament. the land of tenants-in-common may be partitioned by them so that each holds a certain part. no bishop or other official having authority to take probate of testaments may take a fee for probating a testament where the goods of the testator are under 100s., except that the scribe writing the probate of the testament may take 6d., and for the commission of administration of the goods of any man dying intestate, being up to 100s, may be charged 6d. where the goods are over 100s. but up to 800s. sterling, probate fees may be 3s.6d. at most, whereof the official may take 2s.6d. at most, with 12d. residue to the scribe for registering the testament. where the goods are over 800s. sterling, probate fees may be 5s. at most, whereof the official may take 2s.6d. at most, with 2s.6d. residue to the scribe, or the scribe may choose to take 1d. per 10 lines of writing of the testament. if the deceased had willed by his testament any land to be sold, the money thereof coming nor the profits of the land shall not be counted as the goods or chattel of the deceased. where probate fees have customarily been less, they shall remain the same. the official shall approve and seal the testament without delay and deliver it to the executors named in such testaments for the said sum. if a person dies intestate or executors refuse to prove the testament, then the official shall grant the administration of the goods to the widow of the deceased person, or to the next of kin, or to both, in the discretion of the official, taking surety of them for the true administration of the goods, chattels, and debts. where kin of unequal degree request the administration, it shall be given to the wife and, at his discretion, other requestors. the executors or administrators, along with at least two persons to whom the deceased was indebted, or to whom legacies were made, or, upon their refusal or absence, two honest kinsmen, shall make an inventory of the deceased's personal property, goods, chattels, ware, merchandise, and take it upon their oaths to the official. no parish clergyman or other spiritual person shall take a mortuary fee or money from a deceased person with movable goods under the value of 133s., a deceased woman-covert, a child, a person keeping no house, or a traveler. only one mortuary fee may be taken of each deceased and that in the place where he most dwelled and lived. where the deceased's personal property and goods are to the value of 133s. or more, above his debts paid, and under 600s., a mortuary up to 3s. 4d. may be taken. where such goods are 600s. or more and under 800s., mortuary up to 6s.8d. may be taken. where such goods are 800s. or above, mortuary up to 10s. may be taken. but where mortuaries have customarily been less, they shall remain the same. executors of a will declaring land to be sold for the payment of debts, performance of legacies to wife and children, and charitable deeds for the health of souls, may sell the land despite the refusal of other executors to agree to such sale. a man may not marry his mother, stepmother, sister, niece, aunt, or daughter. any clergy preaching contrary to the king's religious doctrine shall recant for the first offense. he shall abjure and bear a faggot (a badge resembling a faggot of wood which would have been used for burning him as a heretic) for the second offense. if he refuses to abjure or bear a faggot or offends a third time, he shall be burned and lose all his goods. if a layperson teaches, defends, or maintains a religious doctrine other than the king's, he shall recant and be imprisoned for twenty days for the first offense. he shall abjure and bear a faggot if he does not recant or offends a second time. he shall forfeit his goods and suffer perpetual imprisonment if he does not abjure or bear a faggot or offends a third time. the entry of an apprentice into a craft shall not cost more than 2s.6d. after his term, his entry shall not be more than 3s.4d. this replaced the various fees ranging from this to 40s. no master of a craft may require his apprentice to make an oath not to compete with him by setting up a shop after the term of his apprenticeship. no alien may take up a craft or occupation in the nation. no brewer of ale or beer to sell shall make wood vessels or barrels, and coopers shall use only good and seasonable wood to make barrels and shall put their mark thereon. every ale or beer barrel shall contain 32 of the king's standard gallons. the price of beer barrels sold to ale or beer brewers or others shall be 9d. an ale-brewer may employ in his service one cooper only to bind, hoop and pin, but not to make, his master's ale vessels. no butcher may keep a tanning-house. tanned leather shall be sold only in open fairs and markets and after it is inspected and sealed. only people living in designated towns may make cloth to sell, to prevent the ruin of these towns by people taking up both agriculture and cloth-making outside these towns. no one making cloth for sale may have more than one woolen loom or else forfeit 20s. this to protect the weavers' ability to maintain themselves and their families from rich clothiers who keep many looms and employ journeymen and unskillful persons at low wages. no one owning a fulling mill may own a weaving loom. no weaver may own a fulling mill. no one shall shoot in or keep in his house any handgun or crossbow unless he has 2,000s. yearly. no one may hunt or kill hare in the snow since their killing in great numbers by men other than the king and noblemen has depleted them. no one shall take an egg or bird of any falcon or hawk out of its nest on the king's land. no one may disguise himself with hidden or painted face to enter a forest or park enclosed with a wall for keeping deer to steal any deer or hare. ducks and geese shall not be taken with any net or device during the summer, when they haven't enough feathers to fly. but a freeholder of 40s. yearly may hunt and take such with long bow and spaniels. no one may sell or buy any pheasant except the king's officers may buy such for the king. no butcher may kill any calf born in the spring. no grain, beef, mutton, veal, or pork may be sold outside the nation. every person with 36 acres of agricultural land, shall sow one quarter acre with flax or hemp-feed. all persons shall kill crows on their land to prevent them from eating so much grain at sowing and ripening time and destroying hay stacks and the thatched roofs of houses and barns. they shall assemble yearly to survey all the land to decide how best to destroy all the young breed of crows for that year. every village and town with at least ten households shall put up and maintain crow nets for the destruction of crows. no land used for raising crops may be converted to pasture. no woods may be converted to agriculture or pasture. the efforts to enforce these proved these prohibitions were not successful. no one shall cut down or break up dikes holding salt water and fresh water from flooding houses and pastures. no one shall dump tin-mining debris, dung, or rubbish into rivers flowing into ports or take any wood from the walls of the port, so that ships may always enter at low tide. a person may lay out a new highway on his land where the old one has been so damaged by waterways that horses with carriages cannot pass, with the consent of local officials. only poor, aged, and disabled persons may beg. begging without a license is punishable by whipping or setting in the stocks 3 days with only bread and water. alien palm readers shall no longer be allowed into the nation, because they have been committing felonies and robberies. butchers may not sell beef, pork, mutton, or veal from carcasses for more than 1/2 penny and 1/2 farthing [1/4 penny] per pound. french wines may not sell at retail for more than 8d. per gallon. a barrel maker or cooper may sell a beer barrel for 10d. no longer may aliens bring books into the nation to sell because now there are sufficient printers and bookbinders in the nation. no one may buy fresh fish other than sturgeon, porpoise, or seal from an alien to put to sale in the nation. every person with an enclosed park where there are deer, shall keep two tall and strong mares in such park and shall not allow them to be mounted by any short horse, because the breeding of good, swift, and strong horses has diminished. a man may have only as many trotting horses for the saddle as are appropriate to his degree. no one may maintain for a living a house for unlawful games such as bowling, tennis, dice, or cards. no artificer, craftsman, husbandman, apprentice, laborer, journeyman, mariner, fisherman may play these games except at christmas under his master's supervision. noblemen and others with a yearly income of at least 2,000s. may allow his servants to play these games at his house. hemp or flax may not be watered in any river or stream where animals are watered. no one shall sell merchandise to another and then buy back the same merchandise within three months at a lower price. no one shall sell merchandise to be paid for in a year above the sum of 200s. per 2000s. worth of merchandise. no one shall sell or mortgage any land upon condition of payment of a sum of money before a certain date above the sum of 200s. per 2000s. per year. no one shall commit forgery by counterfeiting a letter made in another person's name to steal any money, goods, or jewels. no one shall libel by accusing another of treason in writing and leaving it in an open place without subscribing his own name to it. if any servant converts to his own use more than 40s. worth of jewels, money, or goods from caskets entrusted to him for safekeeping by a nobleman or other master or mistress, it shall be a felony. if a person breaks into a dwelling house by night to commit burglary or murder, is killed by anyone in that house, or a person is killed in self-defense, the killer shall not forfeit any lands or goods for the killing. killing by poisoning shall be deemed murder and is punishable by death. a person who has committed a murder, robbery, or other felony he has committed shall be imprisoned for his natural life and be burned on the hand, because those who have been exiled have disclosed their knowledge of the commodities and secrets of this nation and gathered together to practice archery for the benefit of the foreign realm. if he escapes such imprisonment, he shall forfeit his life. a person convicted or outlawed shall be penalized by loss of life, but not loss of lands or goods, which shall go to his wife as dower and his heirs. buggery may not be committed on any person or beast. no one shall slander or libel the king by speeches or writing or printing or painting. no one shall steal fish from a pond on another's land by using nets or hooks with bait or by drying up the pond. the mayor of london shall appoint householders to supervise watermen rowing people across the thames river because many people have been robbed and drowned by these rowers. all such boats must be at least 23 feet long and 5 feet wide. no man shall take away or marry any maiden under 16 years of age with an inheritance against the will of her father. any marriage solemnized in church and consummated shall be valid regardless of any prior agreement for marriage. sheriffs shall not lose their office because they have not collected enough money for the exchequer, but shall have allowances sufficient to perform their duties. butchers, brewers, and bakers shall not conspire together to sell their victuals only at certain prices. artificers, workmen and laborers shall not conspire to work only at a certain rate or only at certain hours of the day. no one shall sell any woolen cloth that shrinks when it is wet. no one shall use a rope or device to stretch cloth for sale so to make it appear as more in quantity than it is. no one may sell cloth at retail unless the town where it was dressed, dyed, and pressed has placed its seal on the cloth. cloth may not be pressed with a hot press, but only with a cold press. only artificers using the cutting of leather, may buy and sell tanned leather and only for the purpose of converting it into made wares. a beggar's child above five years may be taken into service by anyone that will. cattle may be bought only in the open fair or market and only by a butcher or for a household, team, or dairy, but not for resale live. butter and cheese shall not be bought to be sold again except at retail in open shop, fair, or market. no man may enter a craft of cloth-making until he has been an apprentice for seven years or has married a clothiers' wife and practicing the trade for years with her and her servants sorting the wool. no country person shall sell wares such as linen drapery, wool drapery, hats, or groceries by retail in any incorporated town, but only in open fairs. for every 60 sheep there shall be kept one milk cow because of the scarcity of cattle. no clothier may keep more than one wool loom in his house, because many weavers do not have enough work to support their families. no weaver may have more than two wool looms. no clothmaker, fuller, shearman, weaver, tailor, or shoemaker shall retain a journeyman to work by the piece for less than a three month period. every craftsman who has three apprentices shall have one journeyman. servants in agriculture and bargemen shall serve by the whole year and not by day wages. there shall be a sales tax of 12d. per pound of wool cloth goods for the crown. all people shall attend church on sundays to remember god's benefits and goodness to all and to give thanks for these with prayers and to pray to be given daily necessities. anyone fighting in church shall be excluded from the fellowship of the parish community. no one going from house to house to repair metal goods or sell small goods he is carrying may do this trade outside the town where he lives. no one may sell ale or beer without a license, because there have been too many disorders in common alehouses. offenders may be put in the town or county gaol for three days. only persons with yearly incomes of 1,333s. or owning goods worth 13,333s. may store wine in his house and only for the use of his household. no one may sell forged iron, calling it steel, because the edged tools and weapons made from it are useless. parish communities shall repair the highways for four days each year using oxen, cart, plough, shovels, and spades. the children of priests are declared legitimate so they may inherit their ancestor's lands. the priests may be tenants by courtesy after the death of their wives of such land and tenements that their wives happened to be seized of in fee simple or in fee tail, during the spousals. as of 1541, it was felony to practice witchcraft, sorcery, enchantment, or conjuration [invocation of spirits] for the purpose 1) of obtaining money, or 2) to consume any person in his body, members, or goods, or 3) to provoke any person to unlawful love or lucre of money, or 4) to declare where stolen goods be, or 5) to despite christ, or 6) to pull down any cross. the year books of case decisions ceased in 1535. judicial procedure since the nation was now peaceful, expediency was no longer needed, so judicial procedures again became lengthy and formal with records. the privy council took the authority of the star chamber court, which organized itself as a specialty court. a specific group of full-time councilors heard pleas of private suitors. by royal proclamation of 1546, only those admitted by the chancellor and two chief justices may practice as counsel or in legal pleading in any of the king's courts. also, such a person must be serjeant-at-law, reader, utter barrister, or an eight-year fellow of one of the four houses of court, except in the court of common pleas. doctors of the civil law may practice in the church or chancery courts. the chancery court enforced the obligations known as trusts, in the name of equity and good conscience. it adopted every analogy that the common law presented. its procedure was to force the defendant to answer on oath the charges that were brought against him. all pleadings and usually testimony was put into writing. much evidence consisted of written affidavits. there was no jury. the chancery court did not record its decisions apparently because it did not see itself as bound by precedents. when acting as the highest court, the house of lords was presided over by the chancellor, who sat on his prescribed place on the wool sacks. it had the following jurisdiction: trial of peers for high treason and serious felony, appeals on writs of error from courts of the common law, and impeachment. the house of lords served as judge of impeachment cases, whereas the house of commons served as fact finders. witnesses could be sworn in to state pertinent facts necessary for full understanding and adjudication of cases, because they are reliable now that there is no unlicensed livery and maintenance and because jurors no longer necessarily know all the relevant facts. justices shall tax inhabitants of the county for building gaols throughout the nation, for imprisonment of felons, to be kept by the sheriffs and repaired out of the exchequer. piracy at sea or in river or creek or port are adjudicated in counties because of the difficulty of obtaining witnesses from the ship, who might be murdered or who are on other voyages on the sea, for adjudication by the admiral. piracy and murder on ships is punishable by death only after confession or proof by disinterested witnesses. land held by tenants in common may be partitioned by court order, because some of these tenants have cut down all the trees to take the wood and pulled down the houses to convert the material to their own use. persons worth 800s. a year in goods shall be admitted in trials of felons in corporate towns although they have no freehold of land. each justice of the high courts may employ one chaplain. the bishops, nobility, and justices of the peace were commanded to imprison clergy who taught papal authority. justices of the peace and sheriffs were to watch over the bishops. the justices of assize were to assess the effectiveness of the justices of the peace as well as enforce the treason statute on circuit. the criminal court went outside the common law to prosecute political enemies, e.g. by dispensing with a jury. the leet court and sheriff's turn court have much less jurisdiction. they may dispose of presentments of trespasses and nuisances, but not felony or question of freehold. such presentments are made by a set of at least twelve men, and the presented person is amerced there and then. the humanist intellectual revival caused the church courts to try to eliminate contradictions with state law, for instance in debt, restitution, illegitimacy, and the age of legal majority. an example of a case in the king's bench is this: "a french priest was indicted in kent for bringing false ducats into the realm in order to make payment, knowing them to be false. he was thereupon arraigned and found guilty, and the judgment was respited and the record sent into the king's bench. and there he was discharged; for the statute of 25 edw. 3 is for bringing (in) false money counterfeiting coin of the realm, and the ducats are not coin of the realm" in the case of r. v. thorpe "a man robbed a church in essex and was indicted for it in essex; and he went to ipswich in suffolk and a goldsmith received him; and they were both indicted in suffolk, one as principal and the other as accessory, because the principal had brought part of the stolen goods to ipswich. and the justices in essex sent a writ for the principal, whereby he was there arraigned and found guilty and hanged. then the other indictment in suffolk was removed into the king's bench, and upon process the sheriff returned the principal dead; so the accessory came by process and pleaded the death of the principal, and the attorney for the king confessed it, and therefore he was discharged." in the case of r. v. more, "and then on thursday, the first day of july, sir thomas more, knight (who had earlier been chancellor of england and was afterwards discharged from the same office) was arraigned before the said sir thomas audley, chancellor and the other commissioners, for treason, in that he was an aider, counsellor and abettor to the said fisher, and also that he falsely, maliciously, and traitorously desiring, willing, and scheming, contrived, practised and attempted to deprive the king of his dignity, name and title of supreme head on earth of the church of england. (he was) found guilty, and the said chancellor gave judgment. and the said more stood firmly upon the statute of 26 hen 8, for he said that the parliament could not make the king supreme head, etc. he was beheaded at tower hill," chapter 13 the times: 1558-1601 queen elizabeth i was intelligent, educated, and wise about human nature. when young, she was a brilliant student and studied the bible, philosophy, literature, oratory, and greek and roman history. she wrote in english, latin, french, and italian. she read greek, including the greek testament, greek orators, and greek dramatists, at age seven, when the first professorship of greek was founded at cambridge university. learning from books was one of her highest values throughout her life. she read so much and was so influenced by cicero that she acquired his style of writing. her chief secretary william cecil was so guided by cicero's "offices" that he carried a copy in his pocket. cicero opined that government officials had a duty to make the safety and interest of citizens its greatest aim and to influence all their thoughts and endeavors without ever considering personal advantage. government was not to serve the interest of any one group to the prejudice or neglect of the rest, for then discord and sedition would occur. furthermore, a ruler should try to become loved and not feared, because men hated those whom they feared, and wished them dead. therefore obedience proceeding from fear could not last, whereas that which was the effect of love would last forever. an oppressor ruling by terror would be resented by the citizens, who in secret would choose a worthier person. then liberty, having been chained up, would be unleashed more fiercely than otherwise. to obtain the peoples' love, a ruler should be kind and bountiful. to obtain the peoples' trust, a ruler should be just, wise, and faithful. to demonstrate this, a ruler should be eloquent in showing the people an understanding better than theirs, the wisdom to anticipate events, and the ability to deal with adverse events. and this demonstration should be done with modesty. one cannot get the peoples' trust by vain shows, hypocritical pretenses, composed countenances, and studied forms of words. the first goal of a ruler is to take care that each individual is secured in the quiet enjoyment of his own property. the second goal is to impose taxes that are not burdensome. the third goal is to furnish the people with necessaries. the law should be enforced keeping in mind that its fundamental purpose is to keep up agreement and union among citizens. elizabeth cared deeply for the welfare of all citizens of whatever class. she was sensitive to public opinion and was loved by her people. she respected truth and was sincere, avoiding guile or fraud. she claimed that she had never dishonored her tongue with a falsehood to anyone. she expected that any covert manipulations by monarchs would be found out and therefore would damage their credibility. "it becometh therefor all of our rank to deal sincerely; lest if we use it not, when we do it we be hardly believed." she was frugal and diplomatically avoided unnecessary wars, saying that her purse was the pockets of her people. her credit reputation was so good that she could always get loans at small rates of interest from other countries. england was a small protestant nation threatened by the larger catholic nations of france and spain. when elizabeth flirted and talked of marriage with foreign princes, they laid aside any thoughts of conquering england by war, hoping to obtain it my marriage. not only did she not seek to conquer other lands, but she turned down an invitation to rule the netherlands. elizabeth prayed for divine guidance as in this prayer: "almighty god and king of all kings, lord of heaven and earth, by whose leave earthly princes rule over mortals, when the most prudent of kings who administered a kingdom, solomon, frankly confessed that he was not capable enough unless thou broughtst him power and help, how much less am i, thy handmaid, in my unwarlike sex and feminine nature, adequate to administer these thy kingdoms of england and of ireland, and to govern an innumerable and warlike people, or able to bear the immense magnitude of such a burden, if thou, most merciful father didst not provide for me (undeserving of a kingdom) freely and against the opinion of many men. instruct me from heaven, and give help so that i reign by thy grace, without which even the wisest among the sons of men can think nothing rightly. send therefore, o inexhaustible fount of all wisdom, from thy holy heaven and the most high throne of thy majesty, thy wisdom to be ever with me, that it may keep watch with me in governing the commonwealth, and that it may take pains, that it may teach me, thy handmaid, and may train me that i may be able to distinguish between good and evil, equity and iniquity, so as rightly to judge thy people, justly to impose deserved punishments on those who do harm, mercifully to protect the innocent, freely to encourage those who are industrious and useful to the commonwealth. and besides, that i may know what is acceptable to thee alone, vouchsafe that i wish, dare, and can perform it without paying respect to any earthly persons or things. so that when thou thyself, the just judge, who askest many and great things from those to whom many and great things are entrusted, when thou requirest an exact accounting, charge me not with badly administering my commonwealth and kingdom. but if by human thoughtlessness or infirmity thy handmaid strays from the right in some thing, absolve me of it by thy mercy, most high king and most mild father, for the sake of thy son jesus christ; and at the same time grant that after this worldly kingdom has been exacted of me, i may enjoy with thee an eternity in thy heavenly and unending kingdom, through the same jesus christ, thy son and the assessor of thy kingdom, our lord and mediator. to whom with thee and with the holy spirit, one everlasting king, immortal, invisible, only-wise god, be all honor and glory forever and ever, amen." elizabeth promoted commercial speculations, which diffused a vast increase of wealth among her people. the elizabethan era was one of general prosperity. her good spirits and gayness created a happy mood in the nation. she loved dancing and madrigal music was popular. she came to dress elaborately and fancifully. her dresses were fitted not only at the waist, but along the torso by a long and pointed bodice stiffened with wood, steel, or whalebone. her skirt was held out with a petticoat with progressively larger hoops. there were two layers of skirt with the top one parted to show the bottom one. the materials used were silks, satins, velvets, and brocades. on her dress were quiltings, slashings, and embroidery. it was covered with gold ornaments, pearls, gems, and unusual stones from america. she wore decorated gloves. ladies copied her and discarded their simple over-tunics for elaborate dresses. the under-tunic became a petticoat and the over-tunic a dress. often they also wore a fan with a mirror, a ball of scent, a miniature portrait of someone dear to them, and sometimes a watch. single ladies did not wear hats, but had long, flowing hair and low cut dresses showing their bosoms. married ladies curled their hair and wore it in high masses on their heads with jewels interwoven into it. both gentlemen and ladies wore hats both indoors and outside and large, pleated collars around their necks (with the newly discovered starch), perfume, rings with stones or pearls, and high-heeled shoes. gentlemen's' tight sleeves, stiffened and fitted doublet with short skirt, and short cloak were ornamented and their silk or velvet hats flamboyant, with feathers. at their leather belts they hung pouches and perhaps a watch. they wore both rapiers [swords with cutting edges] and daggers daily as there were many quarrels. there were various artistic beard cuts and various lengths of hair, which was often curled and worn in ringlets. barbers sought to give a man a haircut that would favor his appearance, for instance a long slender beard for a round face to make it seem narrower and a broad and large cut for a lean and straight face. men now wore stuffed breeches and stockings instead of long hosen. some wore a jeweled and embroidered codpiece between their legs to emphasize their virility. both gentlemen and ladies wore silk stockings and socks over them and then boots. coats dipped in boiled linseed oil with resin served as raincoats. both men and women wore velvet or wool full length nightgowns with long sleeves and fur lining and trimming to bed, which was the custom for the next 150 years. fashions changed every year due to the introduction of cheaper, lighter, and less durable cloths by immigrant craftsmen. when elizabeth became old, she had a wig made to match her youthful long red hair. other ladies then began wearing wigs. every few years, elizabeth issued a proclamation reminding people of the apparel laws and reiterating certain provisions which had been disregarded. for instance, only the royal family and dukes and marquises in mantles [cloaks] of the garter could wear the color purple. one had to be at least an earl to wear gold or silver or sable. only dukes, marquises, earls and their children, barons, and knights of the order could wear imported wool, velvet, crimson, scarlet, or blue, or certain furs., except that barons' sons, knights, or men who could dispend at least 200 pounds yearly could wear velvet in gowns or coats, embroidery, and furs of leopards. spurs, swords, rapiers, daggers, and woodknives were restricted to knights and barons' sons or higher. a man who could dispend at least 100 pounds per year could wear taffeta, satin, damask, or cloth made of camels' hair and silk, in his outer garments. one had to be the son and heir or the daughter of a knight or wife of said son or a man who could dispend 20 pounds yearly or had 200 pounds worth in goods to wear silk in one's hat, bonnet, nightcap, girdle, scabbard, or hose. yeomen, husbandmen, serving men, and craftsmen were very restricted in what they could wear. poor men wore skirted fustian tunics, loose breeches, and coarse stockings or canvas leggings. children wore the same type of apparel as their elders. they were given milk at meals for good growth. it was recognized that sickness could be influenced by diet and herbs. sickness was still viewed as an imperfect balance of the four humors. women spent much of their time doing needlework and embroidery. since so many of the women who spent their days spinning were single, unmarried women became known as "spinsters". there were many lifestyle possibilities in the nation: gentleman, that is one who owned land or was in a profession such as a attorney, physician, priest or who was a university graduate, government official, or a military officer; employment in agriculture, arts, sciences; employment in households and offices of noblemen and gentlemen; self-sufficient farmers with their own farm; fisherman or mariner on the sea or apprentice of such; employment by carriers of grain into cities, by market towns, or for digging, seeking, finding, getting, melting, fining, working, trying, making of any silver, tin, lead, iron, copper, stone, coal; glassmaker. typical wages in the country were: field-workers 2-3d. a day, ploughmen 1s. a week with board, shepherd 6d. a week and board, his boy 2 1/2 d., hedgers 6d. a day, threshers 3-7d. depending on the grain, thatching for five days 2d., master mason or carpenter or joiner 4d. a day and food or 8d. without food, a smith 2d. a day with food, a bricklayer 2 1/2 d. a day with food, a shoemaker 2d. a day with food. these people lived primarily on food from their own ground. there was typical work for each month of the year in the country: january ditching and hedging after the frost broke, february catch moles in the meadows, march protect the sheep from prowling dogs, april put up hop poles, sell bark to the tanner before the timber is felled, fell elm and ash for carts and ploughs, fell hazel for forks, fell sallow for rakes, fell horn for flails, may weed and hire children to pick up stones from the fallow land, june wash and shear the sheep, july hay harvest, august wheat harvest, september and october gather the fruit, sell the wool from the summer shearing, stack logs for winter, buy salt fish for lent in the town and lay it up to dry, november have the chimneys swept before winter, thresh grain in the barn, december grind tools, repair yokes, forks, and farm implements, cover strawberry and flower beds with straw to protect them from the cold, split kindling wood with beetle and wedge, tan their leather, make leather jugs, make baskets for catching fish, and carve wood spoons, plates, and bowls. there was a wave of building and renovation activity in town and country. housing is now, for the first time, purely for dwelling and not for defense. houses were designed symmetrically with decorative features instead of a haphazard addition of rooms. windows were large and put on the outer walls instead of just inside the courtyard. a scarcity of timber caused proportionally more stone to be used for dwelling houses and proportionately more brick to be used for royal palaces and mansions. the rest of the house was plaster painted white interspersed with vertical, horizontal, and sloping timber, usually oak, painted black. there were locks and bolts for protection from intruders. the hall was still the main room, and usually extended up to the roof. richly carved screens separated the hall from the kitchen. the floors were stone or wood, and sometimes tile. they were often covered with rushes or plaited rush mats, on which incomers could remove the mud from their boots. some private rooms had carpets on the floor. walls were smoothly plastered or had carved wood paneling to control drafts. painted cloths replaced tapestries on walls. family portraits decorated some walls, usually in the dining room. iron stands with candles were hung from the ceiling and used on tables. plastered ceilings and a lavish use of glass made rooms lighter and cozy. broad and gracious open stairways with carved wood banisters replaced the narrow winding stone steps of a circular stairwell. most houses had several ornamented brick chimneys and clear, but uneven, glass in the windows. there were fireplaces in living rooms, dining rooms, kitchen, and bedrooms, as well as in the hall and great chamber. parlors were used for eating and sitting only, but not for sleeping. closets were rooms off bedrooms in which one could read and write on a writing table, and store one's books, papers, maps, calendar, medals, collections, rarities, and oddities. sometimes there was a study room or breakfast room as well. a gentleman used his study not only to read and to write, but to hold collections of early chronicles, charters, deeds, copied manuscripts, and coins that reflected the budding interest in antiquarianism; and to study his family genealogy, for which he had hired someone to make an elaborate diagram. he was inclined to have a few classical, religious, medical, legal, and political books there. rooms were more spacious than before and contained oak furniture such as enclosed cupboards; cabinets; buffets from which food could be served; tables, chairs and benches with backs and cushions, and sometimes with arms; lidded chests for storing clothes and linens, and occasionally chests of drawers or wardrobes, either hanging or with shelves, for clothes. chests of drawers developed from a drawer at the bottom of a wardrobe. carpeting covered tables, chests, and beds. great houses had a wardrobe chamber with a fireplace in front of which the yeoman of the wardrobe and his assistants could repair clothes and hangings. separate bedchambers replaced bed-sitting rooms. bedrooms all led out of each other. the lady's chamber was next to her lord's chamber, and her ladies' chambers were close to her chamber. but curtains on the four-poster beds with tops provided privacy and warmth. beds had elaborately carved bedsteads, sheets, and a feather cover as well as a feather mattress. often family members, servants, and friends shared the same bed for warmth or convenience. each bedroom typically had a cabinet with a mirror, e.g. of burnished metal or crystal, and comb on top. one brushed his teeth with tooth soap and a linen cloth, as physicians advised. each bedroom had a pitcher and water bowl, usually silver or pewter, for washing in the morning, and a chamber pot or a stool with a hole over a bucket for nighttime use, and also fragrant flowers to override the unpleasant odors. the chamber pots and buckets were emptied into cesspits. a large set of lodgings had attached to it latrines consisting of a small cell in which a seat with a hole was placed over a shaft which connected to a pit or a drain. the servants slept in turrets or attics. elizabeth had a room just for her bath. breakfast was substantial, with meat, and usually eaten in one's bedroom. the great hall, often hung around with bows, pikes, swords, and guns, was not abandoned, but the family took meals there only on rare occasions. instead they withdrew to a parlor, for domestic use, or the great chamber, for entertaining. parlors were situated on the ground floor: the family lived and relaxed there, and had informal meals in a dining parlor. more than medieval castles and manor houses, mansions were designed with privacy in mind. the formal or "state" rooms were on the first floor above the ground floor, usually comprising a great chamber, a withdrawing chamber, one or more bedchambers, and a long gallery. each room had carved chairs and cabinets. taking a meal in the great chamber involved the same ceremonial ritual as in the manorial great chamber dating from the 1400s. the table was covered with a linen cloth. the lady of the house sat in a chair at the upper end of the table and was served first. people of high rank sat at her end of the table "above" the fancy silver salt cellar and pepper. people of low rank sat "below" it near the other end of the table. grace was said before the meal. noon dinner and supper were served by cupbearer, sewer, carver, and assistants. fine clear italian glass drinking vessels replaced even gold and silver goblets. food was eaten from silver dishes with silver spoons. some gentry used two-pronged forks. meats were plentiful and varied: e.g. beef, mutton, veal, lamb, kid, pork, hare, capon, red deer, fish and wild fowl as well as the traditional venison and brawn [boar]. kitchen gardens and orchards supplied apricots, almonds, gooseberries, raspberries, melons, currants, oranges, and lemons as well as the traditional apples, pears, plums, mulberries, quinces, pomegranates, figs, cherries, walnuts, chestnuts, hazel nuts, filberts, almonds, strawberries, blackberries, dewberries, blueberries, and peaches. also grown were sweet potatoes, artichokes, cabbages, turnips, broad beans, peas, pumpkins, cucumbers, radishes, carrots, celery, parsnips, onions, garlic, leeks, endive, capers, spinach, sorrel, lettuce, parsley, mustard, cress, sage, tarragon, fennel, thyme, mint, savory, rhubarb, and medicinal herbs. the well-to-do started to grow apricots, peaches, and oranges under glass. sugar was used to make sweet dishes. toothpicks made of brass or silver or merely a stiff quill were used. after the meal, some men and women were invited for conversation in a withdrawing or drawing chamber. some might take a walk in the gardens. after the upper table was served, the food was sent to the great hall to the steward and high household officers at the high table and other servants: serving men and women, bakers, brewers, cooks, pot cleaners, laundresses, shepherds, hogherds, dairy maids, falconers, huntsmen, and stable men. what was left was given to the poor at the gates of the house. great chambers were used primarily for meals, but also for music; dancing; plays; masques; playing cards, dice, backgammon, or chess; and daily prayers if there was no chapel. without the necessity of fortifications, the estate of a noble or gentleman could spread out to include not only a garden for the kitchen, but extensive orchards and beautiful formal gardens of flowers and scrubs, sometimes with fountains and maybe a maze of hedges. trees were planted, pruned, and grafted onto each other. householders had the responsibility to teach their family and servants religion and morals, and often read from the bible to them. many thought that the writers of the bible wrote down the exact words of god, so the passages of the bible should be taken literally. a noble lord made written rules with penalties for his country household, which numbered about a hundred, including family, retainers, and servants. he enforced them by fines, flogging, and threats of dismissal. the lady of the house saw that the household held together as an economic and social unit. the noble's family, retainers, guests, and the head servants, such as chaplain and children's tutor, and possibly a musician, dined together at one table. the family included step children and married sons and daughters with their spouses. young couples often lived with the parents of one of them. chandeliers of candles lit rooms. there were sandglass clocks. popular home activities included reading, conversation, gardening, and music-making. smoking tobacco from a clay pipe and taking snuff became popular with men. for amusement, one of the lord's household would take his place in managing the estate for twelve days. he was called the "lord of misrule", and mimicked his lord, and issued comic orders. clothes were washed in rivers and wells. at spring cleanings, windows were opened, every washable surface washed, and feather beds and pillows exposed to the sun. most dwellings were of brick and stone. only a few were of wood or mud and straw. the average house was now four rooms instead of three. yeomen might have six rooms. a weaver's house had a hall, two bedrooms, and a kitchen besides the shop. farmers might have two instead of one room. a joiner had a one-room house with a feather bed and bolster. even craftsmen, artificers and simple farmers slept on feather beds on bed frames with pillows, sheets, blankets, and coverlets. loom tapestry and painted cloth was hung to keep out the cold in their single story homes. they also had pewter spoons and plates, instead of just wood or earthenware ones. even the poorer class had glass drinking vessels, though of a coarse grade. the poor still used wooden plates and spoons. laborers had canvas sheets. richer farmers would build a chamber above the hall, replacing the open hearth with a fireplace and chimney at a wall. poorer people favored ground floor extensions, adding a kitchen or second bedchamber to their cottages. kitchens were often separate buildings to reduce the risk of fire. roasting was done on a spit and baking in irons boxes placed in the fire or in a brick oven at the side of the fireplace. sometimes dogs were used to turn a spit by continual running in a treadmill. some people lived in hovels due to the custom in many places that a person could live in a home he built on village waste land if he could build it in one night. yeomen farmers still worked from dawn to dusk. mixed farming began. in this, some of the arable land produced food for man and the rest produced food for sheep, cattle, pigs, and poultry. this was made possible by the introduction of clover, artificial grasses, and turnip and other root crops for the animals. since the sheep ate these crops in the field, they provided manure to maintain the fertility of the soil. this meant that many animals could be maintained throughout the winter instead of being slaughtered and salted. so salted meat and salted fish were no longer the staple food of the poorer people during the winter. farm laborers ate soup, porridge, milk, cheese, bacon, and beer or mead (depending on the district), and dark barley or rye bread, which often served as his plate. gentlemen ate wheat bread. there was a scarcity of fruits and vegetables that adversely affected the health of the affluent as well as of the poor due to the overall decline in farming. during winter, there were many red noses and coughing. farmers' wives used looms as well as spinning wheels with foot treadles. the value of grain and meat rose compared to wool. grain became six times its value in the previous reign. wool fell from 20s.8d. per tod to 16s. so sheep farming, which had taken about 5% of the arable land, was supplanted somewhat by crop raising, and the rural population could be employed for agriculture. in some places, the threefold system of rotation was replaced by alternating land used for crops with that used for pasture. the necessity of manuring and the rotation of crops and grasses such as clover for enrichment of the soil were recognized. wheat, rye, barley, peas, and beans were raised. there was much appropriation of common land by individual owners by sale or force. many farms were enclosed by fences or hedges so that each holder could be independent of his neighbors. red and black currants, rhubarb, apricots, and oranges were now grown. these independent farmers could sell wool to clothiers, and butter, cheese, and meat to the towns. they also often did smithwork and ironwork, making nails, horseshoes, keys, locks, and agricultural implements to sell. a laborer could earn 6d. a day in winter and 7d. a day in summer. unfree villeinage ceased on the royal estates. but most land was still farmed in common and worked in strips without enclosure. elizabeth made several proclamations ordering the enclosure of certain enclosed land to be destroyed and the land returned to tillage. windmills now had vanes replacing manual labor to change the position of their sails when the wind direction changed. prosperous traders and farmers who owned their own land assumed local offices as established members of the community. the population of the nation was about five million. population expansion had allowed landlords to insist on shorter leases and higher rents, instead of having to choose between accepting a long lease and good rent or allowing their estates to pass out of cultivation. over 50% of the population were on the margin of subsistence. 90% of the population lived in the countryside and 5% in the london and 5% in the other towns. life expectancy was about 40 years of age. over 50% were under the age of 23, while only about 9% were over 60. fluctuations in rates of population growth were traceable back to bad harvests and to epidemics and the two were still closely related to each other: "first dirth and then plague". most of london was confined within the city wall. there were orchards and gardens both inside and outside the walls, and fields outside. flower gardens and nurseries came into existence. no part of the city was more than a ten minute walk to the fields. some wealthy merchants had four story mansions or country houses outside the city walls. the suburbs of the city of london grew in a long line along the river; on the west side were noblemen's houses on both sides of the strand. east of the tower was a seafaring and industrial population. goldsmiths' row was replete with four story houses. a few wealthy merchants became moneylenders for interest, despite the law against usury. the mayor of london was typically a rich merchant prince. each trade occupied its own section of the town and every shop had its own signboard, for instance, hat and cap sellers, cloth sellers, grocers, butchers, cooks, taverns, and booksellers. many of the london wards were associated with a craft, such as candlewick ward, bread st. ward, vintry ward, and cordwainer ward. some wards were associated with their location in the city, such as bridge ward, tower ward, aldgate ward, queenhithe ward, and billingsgate ward. people lived at the back or on the second floor of their shops. in the back yard, they grew vegetables such as melons, carrots, turnips, cabbages, pumpkins, parsnips, and cucumbers; herbs; and kept a pig. the pigs could still wander through the streets. hyde park was the queen's hunting ground. london had a small zoo of ten animals, including a lion, tiger, lynx, and wolf. london was england's greatest manufacturing city. by 1600 the greatest trading companies in london ceased to be associated only with their traditional goods and were dominated by merchants whose main interest was in the cloth trade. ambitious merchants joined a livery company to become freemen of the city and for the status and social benefits of membership. the companies still made charitable endowments, had funeral feasts, cared for the welfare of guild members, and made lavish displays of pageantry. they were intimately involved with the government of the city. they supplied members for the court of aldermen, which relied on the companies to maintain the city's emergency grain stores, to assess and collect taxes, to provide loans to the crown, to control prices and markets, to provide armed men when trouble was expected, and to raise armies for the crown at times of rebellion, war, or visits from foreign monarchs. from about 1540 to 1700, there were 23% involved in cloth or clothing industries such as weavers, tailors, hosiers, haberdashers, and cappers. 9% were leatherworkers such as skinners; tanners; those in the heavy leather crafts such as shoemakers, saddlers, and cobblers; and those in the light leather crafts such as glovers and pursers. another 9% worked in metals, such as the armorers, smiths, cutlers, locksmiths, and coppersmiths. 8% worked in the building trades. the victualing trades, such as bakers, brewers, butchers, costermongers [sold fruit and vegetables from a cart or street stand], millers, fishmongers, oystermen, and tapsters [bartender], grew from 9% before 1600 to 16% by 1700. of london's workforce, 60% were involved in production; 13% were merchants before 1600; 7% were merchants by 1700; 7% were transport workers such as watermen, sailors, porters, coachmen, and shipwrights; and 5-9% were professionals and officials (this number declining). life in london was lived in the open air in the streets. the merchant transacted business agreements and the attorney saw his clients in the street or at certain pillars at st. paul's church, where there was a market for all kinds of goods and services, including gentlemen's valets, groceries, spirits, books, and loans, which continued even during the daily service. some gentlemen had offices distant from their dwelling houses such as attorneys, who had a good income from trade disputes and claims to land, which often changed hands. plays and recreation also occurred in the streets, such as performances by dancers, musicians, jugglers, clowns, tumblers, magicians, and men who swallowed fire. the churches were continuously open and used by trades and peddlers, including tailors and letter-writers. water carriers carried water in wood vessels on their shoulders from the thames river or its conduits to the inhabitants three gallons at a time. a gentleman concocted an engine to convey thames water by lead pipes up into men's houses in a certain section of the city. in 1581, a man took out a lease on one of the arches of london bridge. there he built a waterwheel from which he pumped water to residents who lived beside the bridge. soldiers, adventurers, physicians, apprentices, prostitutes, and cooks were all distinguishable by their appearances. an ordinance required apprentices to wear long blue gowns and white breeches with stockings, with no ornamentation of silk, lace, gold or silver and no jewelry. they could wear a meat knife, but not a sword or dagger. apprentices lived with their masters and worked from 6 or 7 a.m. to 9 p.m. some people knitted wool caps as they walked to later sell. there were sections of town for booksellers, butchers, brewers, hosiers, shoemakers, curriers, cooks, poulters, bow makers, textwriters, pattenmakers, and horse and oxen sellers. large merchant companies had great halls for trade, such as the mercers, grocers, drapers, fishmongers, and goldsmiths. the other great guilds were the skinners, merchant tailers, salters, haberdashers, ironmongers, vintners, and clothworkers. smaller guilds were those of the bakers, weavers, fruiterers, dyers, thames watermen and lightermen, carpenters, joiners, turners, and parish clerks. the guilds insured quality by inspecting goods for a fee. about 1571, mercer and merchant adventurer thomas gresham established the royal exchange as a place for merchants and brokers to meet for business purposes. it became the center of london's business life. its great bell rang at midday and at 6 p.m. its courtyard was lined with shops that rented at 50s. yearly and became a popular social and recreational area. gresham formulated his law that when two kinds of money of equal denomination but unequal intrinsic value are in circulation at the same time, the one of greater value will tend to be hoarded or exported, i.e. bad money will drive good money out of circulation. the work-saving knitting frame was invented in 1589 by minister william lee; it knit crosswise loops using one continuous yarn and was operated by hand. the stocking knitters, who knitted by hand, put up a bitter struggle against its use and chased lee out of the country. but it did come into use. some framework stocking knitters paid frame rent for the use of their knitting frames. frame knitting became a scattered industry. by 1600 basement services were frequently found in town houses built on restricted sites in london. lastly, provision of water supplies and improved sanitary arrangements reflected concern with private and public health. there was virtually no drainage. in the case of town houses, some owners would go to considerable effort to solve drainage problems, often paying cash to the civic authorities, but sometimes performing some service for the town at court or at westminster, in return for unlimited water or some drainage. most affluent households, including the queen's, moved from house to house, so their cesspits could be cleaned out and the vacated buildings aired after use. a few cesspits were made air tight. otherwise, there was extensive burning of incense. refuse was emptied out of front doors and shoveled into heaps on street corners. it was then dumped into the thames or along the highways leading out of town. people put on perfume to avoid the stench. by 1600, the first toilet and water closet, where water flushed away the waste, was built. this provided a clean toilet area all year round. but these toilets were not much used because of sewer smells coming from them. the sky above london was darkened somewhat by the burning of coal in houses. taverns served meals as well as ale. they were popular meeting places for both men and women of all backgrounds to met their friends. men went to taverns for camaraderie and to conduct business. women usually went to taverns with each other. two taverns in particular were popular with the intelligentsia. music was usually played in the background and games were sometimes played. beer made with hops and malt was introduced and soon there were beer drinking contests. drunkenness became a problem. at night, the gates of the city were closed and citizens were expected to hang out lanterns. the constable and his watchmen carried lanterns and patrolled the streets asking anyone they saw why they were out so late at night. crime was rampant in the streets and criminals were executed near to the crime scene. there were a few horse-drawn coaches with leather flaps or curtains in the unglazed windows to keep out the weather. the main thoroughfare in london was still the thames river. nobles, peers, and dignitaries living on the thames had their own boats and landings. also at the banks, merchants of all nations had landing places where ships unloaded, warehouses, and cellars for goods and merchandise. swans swam in the clear bright water. watermen rowed people across the thames for a fee. in southwark were theaters, outlaws, cutpurses, prostitutes, and prisons. in 1550 southwark became the 26th and last ward of london. in the summer, people ate supper outside in public. as of old times, brokers approved by the mayor and aldermen made contracts with merchants concerning their wares. some contracts included holding wares as security. some craftsmen and manual workers extended this idea to used garments and household articles, which they took as pawns, or security for money loaned. this began pawn brokerage, which was lucrative. the problem was that many of the items pawned had been stolen. elizabeth had good judgment in selecting her ministers and advisors for her privy council, which was organized like henry viii's privy council. the queen's privy council of about twelve ministers handled foreign affairs, drafted official communiques, issued proclamations, supervised the county offices: the 1500 justices of the peace, chief constables, sheriffs, lord lieutenants, and the county militias. it fixed wages and prices in london, advised justices of the peace on wages elsewhere, and controlled exports of grain to keep prices down and supplies ample. it banned the eating of meat two days a week so that the fishing industry and port towns would prosper. when grain was scarce in 1596, elizabeth made a proclamation against those ingrossers, forestallers, and ingraters of grain who increased its price by spreading false rumors that it was scarce because much of it was being exported, which was forbidden. there were labor strikes in some towns for higher wages after periods of inflation. in 1591, london authorities rounded up the sturdy vagabonds and set them to work cleaning out the city ditches for 4d. per day. during the tudor period, the office of secretary of state was established. elizabeth did not allow any gentleman to live in london purely for pleasure, but sent those not employed by the court back to their country manors to take care of and feed the poor of their parishes. her proclamation stated that "sundry persons of ability that had intended to save their charges by living privately in london or towns corporate, thereby leaving their hospitality and the relief of their poor neighbors, are charged not to break up their households; and all others that have of late time broken up their households to return to their houses again without delay." she never issued a license for more than 100 retainers. she was partially successful in stopping justices of the peace and sheriffs from wearing the liveries of great men. she continued the policy of henry vii to replace the rule of force by the rule of law. service of the crown and influence at court became a better route to power and fortune than individual factions based on local power structures. at the lowest level, bribery became more effective than bullying. the qualities of the courtier, such as wit, and the lawyer became more fashionable than the qualities of the soldier. most of the men in elizabeth's court had attended a university, such as francis bacon, son of the lord keeper, who became a writer, attorney, member of the commons, and experimental philosopher; and walter ralegh, the writer and sea fighter, who had a humble origin. many wives and daughters of privy councilors attended the queen in her privy chamber. most of the knights or gentlemen of the royal household were also members of parliament or justices of the peace for certain districts in the counties. instead of the office of chancellor, which was the highest legal office, elizabeth appointed a man of common birth to be lord keeper of the great seal; she never made a lord keeper a peer. elizabeth encouraged her lords to frankly make known their views to her, in public or in private, before she decided on a course of action. she had affectionate nicknames for her closest courtiers, and liked to make puns. the rooms of the queen were arranged as they had been under henry viii: the great hall was the main dining room where the servants ate and which elizabeth attended on high days and holidays; the great chamber was the main reception room, where her gentlemen and yeomen of the guard waited; the presence chamber was where she received important visitors; beyond lay her privy chamber and her bedchamber. she ate her meals in the privy chamber attended only by her ladies. she believed that a light supper was conducive to good health. the lord chamberlain attended the queen's person and managed her privy chamber and her well-born grooms and yeomen and ladies-in-waiting. the lord steward managed the domestic servants below the stairs, from the lord treasurer to the cooks and grooms of the stable. the court did not travel as much as in the past, but became associated with london. elizabeth took her entire court on summer visits to the country houses of leading nobility and gentry. courtiers adopted symbolic "devices" as statements of their reaction to life or events, e.g. a cupid firing arrows at a unicorn signified chastity under attack by sexual desire. they carried them enameled on jewels, had them painted in the background of their portraits, and sometimes had them expressed on furniture, plate, buildings, or food. the authority of the queen was the authority of the state. elizabeth's experience led her to believe that it was most important for a monarch to have justice, temperance, magnanimity, and judgment. she claimed that she never set one person before another, but upon just cause, and had never preferred anyone to office for the preferrer's sake, but only when she believed the person worthy and fit for the office. she never blamed those who did their best and never discharged anyone form office except for cause. further, she had never been partial or prejudiced nor had listened to any person contrary to law to pervert her verdicts. she never credited a tale that was first told to her and never corrupted her judgment with a censure before she had heard the cause. she did not think that the glory of the title of monarch made all she did lawful. to her, clemency was as eminent in supreme authority as justice and severity. secular education and especially the profession of law was now the route for an able but poor person to rise to power, rather than as formerly through military service or through the church. the first stage of education was primary education, which was devoted to learning to read and write in english. this was carried out at endowed schools or at home by one's mother or a tutor. the children of the gentry were usually taught in their homes by private teachers of small classes. many of the poor became literate enough to read the bible and to write letters. however, most agricultural workers and laborers remained illiterate. they signed with an "x", which represented the christian cross and signified its solemnity. children of the poor were expected to work from the age of 6 or 7. the next stage of education was grammar [secondary] school or a private tutor. a student was taught rhetoric (e.g. poetry, history, precepts of rhetoric, and classical oratory), some logic, and latin and greek grammar. english grammar was learned through latin grammar and english style through translation from latin. as a result, they wrote english in a latin style. literary criticism was learned through rhetoric. there were disputations on philosophical questions such as how many angels could sit on a pin's point, and at some schools, orations. the students sat in groups around the hall for their lessons. the boys and some girls were also taught hawking, hunting and archery. there were no playgrounds. the grammar student and the undergraduate were tested for proficiency by written themes and oral disputations, both in latin. the middle classes from the squire to the petty tradesman were brought into contact with the works of the best greek and roman writers. the best schools and many others had the students read cicero the "de officiis", the epistles and orations; and some of ovid, terence, sallust, virgil, some medieval latin works, the "distichs" of cato, and sometimes erasmus and sir thomas more. the students also had to repeat prayers, recite the lord's prayer and the ten commandments, and to memorize catechisms. because the students came from the various social classes such as gentlemen, parsons, yeomen, mercers, and masons, they learned to be on friendly and natural terms with other classes. a typical school-day lasted from 7:00 am -to 5:00 pm. there were so many grammar schools founded and financed by merchants and guilds such as the mercers and fishmongers that every incorporated town had at least one. grammar schools were headed by schoolmasters, who were licensed by the bishop and paid by the town. flogging with a birch rod was used for discipline. however, the grammar schools did not become the breeding grounds for humanist ideas because the sovereigns were faced with religious atomism and political unrest, so used the grammar schools to maintain public order and achieve political and religious conformity. many grammar schools had preparatory classes called "petties" for boys and girls who could not read and write to learn to do so. the girls did not usually stay beyond the age of nine. this was done by a schoolmaster's assistant, a parish clerk, or some older boys. some founders of grammar schools linked their schools with particular colleges in the universities following the example of winchester being associated with new college, oxford; and eton with king's college, cambridge. the new charter of westminster in 1560 associated the school with christ church, oxford and trinity college, cambridge. the government of oxford university, which had been catholic, was taken from the resident teachers and put into the hands of the vice-chancellor, doctors, heads of colleges, and proctors. cambridge already had a strong reformed element from erasmus' influence. oxford university and cambridge university were incorporated to have a perpetual existence for the virtuous education of youth and maintenance of good literature. the chancellors, masters, and scholars had a common seal. oxford was authorized to and did acquire its own printing press. undergraduate students entered about age 16 and resided in rooms in colleges rather than in scattered lodgings. the graduate fellows of the college who were m.a.s of under three years standing had the responsibility, instead of the university, for teaching the undergraduates. this led many to regard their fellowship as a position for life rather than until they completed their post-graduate studies. but they were still required to resign on marrying or taking up an ecclesiastical benefice. the undergraduates were fee-paying members of the college or poor scholars. some of the fee-paying members or gentlemen-commoners or fellow-commoners were the sons of the nobility and gentry and even shared the fellows' table. the undergraduate students were required to have a particular tutors, who were responsible for their moral behavior as well as their academic studies. it was through the tutors that modern studies fit for the education of a renaissance gentleman became the norm. those students not seeking a degree could devise their own courses of study with their tutors' permission. less than about 40% stayed long enough to get a degree. many students who were working on the seven year program for a master's degree went out of residence at college after the four year's "bachelor" course. students had text books to read rather than simply listening to a teacher read books to them. in addition to the lecturing of the m.a.s and the endowed university lectureships, the university held exercises every monday, wednesday, and friday in which the student was meant through disputation, to apply the formal precepts in logic and rhetoric to the practical business of public speaking and debate. final examinations were still by disputation. the students came to learn to read latin easily. students acted in latin plays. if a student went to a tavern, he could be flogged. for too elaborate clothing, he could be fined. fines for absence from class were imposed. however, from this time until 1945, a young man's university days were regarded as a period for the "sowing of wild oats". all students had to reside in a college or hall, subscribe to the 39 articles of the university, the queen's supremacy, and the prayer book. meals were taken together in the college halls. the universities were divided into three tables: a fellows' table of earls, barons, gentlemen, and doctors; a second table of masters of arts, bachelors, and eminent citizens, and a third table of people of low condition. professors, doctors, masters of arts and students were all distinguishable by their gowns. undergraduate education was considered to be for the purpose of good living as well as good learning. it was to affect the body, mind, manners, sentiment, and business, instead of just leading to becoming a better disputant. the emphasis on manners came mostly from an italian influence. the university curriculum included latin and greek languages and was for four years. the student spent at least one year on logic (syllogizing, induction, deduction, fallacies, and the application of logic to other studies), at least one year on rhetoric, and at least one year on philosophy. the latter included physics, metaphysics, history, law, moral and political philosophy, modern languages, and ethics (domestic principles of government, military history, diplomatic history, and public principles of government), and mathematics (arithmetic, geometry, algebra, music, optics, astronomy). the astronomy taught was that of ptolemy, whose view was that the celestial bodies revolved around a spherical earth, on which he had laid out lines of longitude and latitude. there were lectures on greek and latin literature, including aristotle, plato, and cicero. there were no courses on english history in the universities. about 1564, the curriculum was changed to two terms of grammar, four terms of rhetoric, five terms of dialectic (examining ideas and opinions logically, e.g. ascertaining truth by analyzing words in their context and equivocations), three terms of arithmetic, and two terms of music. there were now negative numbers, irrational numbers such as square roots of non-integers, and imaginary numbers such as square roots of negative numbers. the circumference and area of a circle could be computed from its radius, and the pythagorean theorem related the three sides of a right triangle. also available were astrology, alchemy (making various substances such as acids and alcohols), cultivation of gardens, and breeding of stock, especially dogs and horses. astronomy, geometry, natural and moral philosophy, and metaphysics were necessary for a master's degree. the university libraries of theological manuscripts in latin were supplemented with many non-religious books. there were graduate studies in theology, medicine, music, and law, which was a merging of civil and canon law together with preparatory work for studying common law at the inns of court in london. in london, legal training was given at the four inns of court. students were called to dinner by a horn. only young gentry were admitted there. a year's residence there after university gave a gentleman's son enough law to decide disputes of tenants on family estates or to act as justice of the peace in his home county. a full legal education gave him the ability to handle all family legal matters, including property matters. many later became justices of the peace or members of parliament. students spent two years in the clerks' commons, and two in the masters' commons. besides reading textbooks in latin, the students observed at court and did work for practicing attorneys. after about four more years' apprenticeship, a student could be called to the outer bar. there was a real bar of iron or wood separating the justices from the attorneys and litigants. as "utter barrister" or attorney, he would swear to "do no falsehood in the court, increase no fees but be contented with the old fees accustomed, delay no man for lucre or malice, but use myself in the office of an attorney within the court according to my learning and discretion, so help me god, amen". students often also studied and attended lectures on astronomy, geography, history, mathematics, theology, music, navigation, foreign languages, and lectures on anatomy and medicine sponsored by the college of physicians. a tour of the continent became a part of every gentleman's education. after about eight years' experience, attorneys could become readers, who gave lecturess; or benchers, who made the rules. benchers, who were elected by other benchers, were entrusted with the government of their inn of court, and usually were king's counsel. five to ten years later, a few of these were picked by the queen for serjeant at law, and therefore eligible to plead at the bar of common pleas. justices were chosen from the serjeants at law. gresham left the royal exchange to the city and the mercer's company on condition that they use some of its profits to appoint and pay seven lecturers in law, rhetoric, divinity, music, physics, geometry, and astronomy to teach at his mansion, which was called gresham college. they were installed in 1598 according to his will. their lectures were free, open to all, and often in english. they embraced mathematics and new scientific ideas and emphasized their practical applications. a tradition of research and teaching was established in mathematics and astronomy. there were language schools teaching french, italian, and spanish to the aspiring merchant and to gentlemen's sons and daughters. many people kept diaries. letter writing was frequent at court. most forms of english literature were now available in print. many ladies read aloud to each other in reading circles and to their households. some wrote poetry and did translations. correctness of spelling was beginning to be developed. printers tended to standardize it. there was much reading of romances, jest books, histories, plays, prayer collections, and encyclopedias, as well as the bible. in schools and gentry households, favorite reading was edmund spenser's "faerie queen" about moral virtues and the faults and errors which beset them; erasmus' new testament, "paraphrases", "colloquies", and "adages"; sir thomas north's edition of plutarch's "lives of the noble grecians and romans"; elyot's "the book named the governor"; and hoby's translation of "the courtier". gentlemen read books on the ideals of gentlemanly conduct, such as "institucion of a gentleman" (1555), and laurence humphrey's "the nobles: or of nobilites". francis bacon's "essays or counsels civil and moral" were popular for their wisdom. in them he commented on many subjects from marriage to atheism. he cautioned against unworthy authority, mass opinion, custom, and ostentation of apparent wisdom. he urged the use of words with their correct meaning. at a more popular level were caxton's "the golden legend", baldwin's "mirror for magistrates", foxe's "book of martyrs" about english protestant who suffered at the stake, sensational stories and pamphlets, printed sermons (including those of switzerland's calvin), chronicles, travel books, almanacs, herbals, and medical works. english fiction began and was read. there were some books for children. books were copyrighted, although non-gentlemen writers needed a patron. at the lowest level of literacy were ballads. next to sermons, the printing press was kept busiest with rhymed ballads about current events. printed broadsheets on political issues could be distributed quickly. in london, news was brought to the governor of the news staple, who classified it as authentic, apocryphal, barber's news, tailor's news, etc. and stamped it. books were also censored for matter against the state church. this was carried out through the stationers' company. this company was now, by charter, the official authority over the entire book trade, with almost sole rights of printing. (schools had rights of printing). it could burn other books and imprison their printers. italian business techniques were set forth in textbooks for merchants, using italian terms of business: debit (debito), credit (credito), inventory (inventorio), journal (giornal), and cash (cassa). the arithmetic of accounting operations, including multiplication, was described in "an introduction for to lerne to reckonwith the penne or counters" in 1537. accounting advice was extended to farmers as well as merchants in the 1569 "the pathway to perfectness in the accomptes of debitor and creditor" by james peele, a salter of london. it repeated the age-old maxim: ...receive before you write, and write before you pay, so shall no part of your accompt in any wise decay. the 1589 "marchants avizo" by johne browne, merchant of bristol, gave information on foreign currencies and keeping of accounts, and included specimens of various business documents such as insurance policies, and bills of exchange. it also advised: take heed of using a false balance or measure...covet not over familiarity amongst men it maketh thee spend much loss of time. be not hasty in giving credit to every man, but take heed to a man that is full of words, that hath red eyes, that goeth much to law, and that is suspected to live unchaste ... when thou promiseth anything be not stuck to perform it, for he that giveth quickly giveth double ... fear god...know thy prince...love thy parents ...give reverence to thy betters ...be courteous and lowly to all men... be not wise in thine own conceit. the old prohibitions of the now declining canon law were still observed. that is, one should not seek wealth for its own sake or beyond what was requisite for a livelihood in one's station, exploit a customer's difficulties to extract an extravagant price, charge excessive interest, or engross to "corner the market". the printing press had made possible the methodizing of knowledge and its dissemination to a lay public. knowledge associated with the various professions, occupations, and trades was no longer secret or guarded as a mystery, to be passed on only to a chosen few. the sharing of knowledge was to benefit the community at large. reading became an out-of-school activity, for instruction as well as for pleasure. in 1565, graphite was discovered in england, and gave rise to the pencil. surveying accuracy was improved with the new theodolite, which determined directions and measured angles and used a telescope that pivoted horizontally and vertically. scientists had the use of an air thermometer, in which a column of air in a glass tube sitting in a dish of water contracted or expanded with changes in the temperature, causing the water to move up or down the tube. william shakespeare, a glovemaker's son, wrote plays about historical events and plays which portrayed various human personalities and their interactions with each other. they were enjoyed by all classes of people. his histories were especially popular. the queen and various earls each employed players and actors, who went on tour as a troupe and performed on a round open-air stage, with people standing around to watch. in london, theaters such as the globe were built specifically for the performance of plays, which before had been performed at inns. the audience applauded and hissed. there were costumes, but no sets. ordinary admission was 2d. before being performed, a play had to be licensed by the master of the revels to make sure that there was nothing detrimental to the peace and public order. elizabeth issued a proclamation forbidding unlicensed interludes or plays, especially concerning religion or government policy on pain of imprisonment for at least fourteen days. the common people still went to morality plays, but also to plays in which historical personages were portrayed, such as richard ii, henry iv, and henry v. some plays were on contemporary issues. musicians played together as orchestras. music with singing was a popular pastime after supper; everyone was expected to participate. dancing was popular with all classes. gentlemen played cards, dice, chess, billiards, and tennis. they fenced and had games on horseback. their deer-hunting diminished as forests were cut down for agriculture and the deer were viewed as an enemy eating crops. falconry diminished as hedges and enclosures displaced the broad expanses of land. country people enjoyed music, dancing, pantomime shows with masks, hurling, running, swimming, leap frog, blind man's buff, shovelboard played with the hands, and football between villages with the goal to get the ball into one's own village. football and shin-kicking matches often resulted in injuries. they bought ballads from traveling peddlers. early morning dew gathered in may and early june was thought to have special curative powers. there were many tales involving fairies, witches, devils, ghosts, evil spirits, angels, and monsters which were enjoyed by adults as well as children. many people still believed in charms, curses, divination, omens, fate, and advice from astrologers. the ghosts of the earth walked the earth, usually because of some foul play to be disclosed, wrong to be set right, to warn those dear to them of peril, or to watch over hidden treasure. good witches cured and healed. fairies blessed homes, rewarded minor virtues, and punished mild wrongdoing. when fairies were unhappy, the weather was bad. there were parties for children. the merry guild feast was no longer a feature of village life. there were fewer holydays and festivals. the most prosperous period of the laborer was closing. an agricultural laborer's yearly wage was about 154s., but his cost of living, which now included house rent, was about 160s. a year. in 1533, daily wages in the summer for an agricultural laborer were about 4d. and for an artisan 6d. in 1563 in the county of rutland, daily wages for laborers were 7d. in summer and 6d. in winter; and for artisans were 9d. in summer and 8d. in winter. unemployment was widespread. there were endowed hospitals in london for the sick and infirm. there were others for orphans, for derelict children, and for the destitute. they worked at jobs in the hospital according to their abilities. there was also a house of correction for discipline of the idle and vicious by productive work. elizabeth continued the practice of touching people to cure scrofula, although she could not bring herself to fully believe in the reality of such cures, contrary to her chaplain and her physician. in the towns, shop shutters were let down to form a counter at the front of the shop. goods were made and/or stored inside the shop. towns held a market once a week. fairs occurred once or twice a year. at given times in the towns, everyone was to throw buckets of water onto the street to cleanse it. during epidemics in towns, there was quarantine of those affected to stay in their houses unless going out on business. their houses were marked and they had to carry a white rod when outside. the quarantine of a person lasted for forty days. the straw in his house was burned and his clothes treated. people who died had to be buried under six feet of ground. there was an outbreak of plague in london roughly every ten years. there was a pity for the distressed that resulted in towns voting money for a people of a village that had burned down or been decimated by the plague. communities were taxed for the upkeep and relief of the prisoners in the gaols in their communities. queen elizabeth was puzzling over the proper relationship between the crown and the church when richard hooker, a humble scholar, theologian, and clergyman, attempted to find a justification in reason for the establishment of the church of england as an official part of the governing apparatus of the nation. his thinking was a turning point from the medieval notion that god ordered society, including the designation of its monarch and its natural laws, and the belief in a divine structure with a great chain of being, beginning with god and working down through the hierarchy of angels and saints to men, beasts, and vegetables, which structure fostered order in society. hooker restated the concept of aristotle that the purpose of society is to enable men to live well. he wrote that although the monarch was head of state and head of religion, the highest authority in civil affairs was parliament, and in religion, the convocation. the monarch had to maintain divine law, but could not make it. from this later came the idea that the state derives its authority from the will of the people and the consent of the governed. protestant women had more freedom in marriage and were allowed to participate in more church activities compared to catholic women, but they were not generally allowed to become pastors. due to sensitivities on the part of both catholics and protestants about a female being the head of the church, elizabeth was given the title of "supreme governor" of the church instead of "supreme head". elizabeth was not doctrinaire in religious matters, but pragmatic. she always looked for ways to accommodate all views on what religious aspects to adopt or decline. images, relics, pilgrimages, and rosaries were discouraged. but the catholic practice of kneeling at prayer, and bowing and doffing caps at the name of jesus were retained. also retained was the place of the altar or communion table at the east end of churches, special communion wafers instead of common bread, and elaborate clergy vestments. the communion prayer contained words expressing both the catholic view that the wafer and wine contained the real presence of the body and blood of christ, and the protestant view that they were commemorative only. communion was celebrated only at easter and other great festivals. church services included a sermon and were in accordance with a reformed prayer book and in english, as was the bible. care was even taken not to use words that would offend the scots, lutherans, calvinists, or huguenots. people could hold what religious beliefs they would, even atheism, as long as they maintained an outward conformity. attendance at state church services on sunday mornings and evenings and holydays was enforced by a fine of 12d. imposed by the church wardens. babies were to be baptized before they were one month old or the parents would be punished. the new religion had to be protected. members of the house of commons, lawyers, schoolmasters were to take the oath of supremacy or be imprisoned and make a forfeiture; a second refusal brought death. when numerous anabaptists came from the continent to live in the port towns, the queen issued a proclamation ordering them to leave the realm because their pernicious opinions could corrupt the church. the new church still accepted the theory of the devil causing storms, but opposed ringing the holy church bells to attempt to drive him away. the sins of people were also thought to cause storms, and also plagues. in 1562, the church of england wrote down its christian protestant beliefs in thirty-nine articles of religion, which specifically excluded certain catholic beliefs. they were incorporated into statute in 1571 establishing them as the tenets of the official religion of england. the first eighteen endorsed the ideas of one god, christ as the son of god who was sacrificed for all the sins of men, the resurrection of christ from the dead and ascension into heaven, the holy ghost proceeding from the father and the son, the books of the bible, the original sin of adam and his offspring, justification of man by faith in christ rather than by good works, goods works as the inspired fruit and proof of faith in christ, christ in the flesh as like man except for the absence of sin, the chance for sinners who have been baptised to be forgiven if they truly repent and amend their lives, the predestination of some to be brought by christ to eternal salvation and their minds to be drawn up to high and heavenly things, and salvation only by the name of christ and not by a sect. other tenets described the proper functions of the church, distinguishing them from roman catholic practice. specifically, the church was not to expound one place of scripture so that it was inconsistent with another place of scripture. because man can err, the church was not to ordain or enforce anything to be believed for necessity of salvation. explicitly renounced were the romish doctrine concerning purgatory, pardons, worshipping, adoration of images or relics, invocation of saints, and the use in church of any language, such as latin, not understood by the people. only the sacraments of baptism and the lord's supper were recognized. the lord's supper was to be a sign of the love that christians ought to have among themselves and a sacrament of redemption by christ's death. the wine in the cup of blessing as well as the bread of the lord's supper was to be taken by laypeople and to be a partaking of christ; there was no romish mass. excommunication was limited to those who openly denounced the church. anyone openly breaking the traditions or ceremonies of the church which were approved by common authority were to be rebuked. elizabeth told the bishops that she wished certain homilies to be read in church, which encouraged good works such as fasting, prayer, alms-giving, christian behavior, repentance, and which discouraged idolatry, gluttony, drunkenness, excess of apparel, idleness, rebellion, and wife-beating, however provoked. she considered homilies more instructive and learned than ministers' sermons, which were often influenced by various gentlemen and were inconsistent with each other. consecration of bishops and ministers was regulated. they were allowed to marry. the standard prayer was designated thus: "our father who art in heaven, hallowed be thy name. thy kingdom come. thy will be done, on earth as it is in heaven. give us this day our daily bread, and forgive us our offenses as we forgive those who have offended against us. and lead us not into temptation, but deliver us from evil. for thine is the kingdom, the power, and the glory forever and ever, amen." there was difficulty persuading educated and moral men to be church ministers, even though elizabeth expressed to the bishops her preference for ministers who were honest and wise instead of learned in religious matters. the bible was read at home and familiar to everyone. this led to the growth of the puritan movement. the puritans believed in the right of the individual christian to interpret the scriptures for himself by spiritual illumination. they opposed the mystical interpretation of the communion service. the puritans complained that the church exerted insufficient control over the morals of the congregation. their ideas of morality were very strict and even plays were thought to be immoral. the independent puritans were those protestants who had fled from mary's catholic reign to the continent, where they were persuaded to the ideas of john calvin of geneva. he stressed the old idea of predestination in the salvation of souls, which had in the past been accepted by nearly all english christian leaders, thinkers, and teachers, but not stressed. the act of conversion was a common experience among the early puritans. the concomitant hatred of past sins and love of god which was felt in thankfulness for mercy were proof of selection for salvation. the good works that followed were merely an obligation showing that one's faith was real, but not a way to salvation. the puritans also accepted calvin's idea of independent church government. they therefore thought that ministers and lay elders of each parish should regulate religious affairs and that the bishops, who were "petty popes", should be reduced to an equality with the rest of the clergy, since they did not rule by divine right. the office of archbishop should be eliminated and the head of state should not necessarily be governor of the church. these ideas were widely disseminated in books and pamphlets. the puritans disrupted the established church's sunday services, tearing the surplice off the minister's back and the wafers and wine from the altar rail. the puritans arranged "lectures" on sunday afternoons and on weekdays. these were given gratuitously or funded by boroughs. they were strict about not working on the sabbath, which day they gave to spiritual exercises, meditations, and works of mercy. the only work allowed was preparing meals for themselves, caring for their animals, and milking the cows. they enforced a strict moral discipline on themselves. the puritans formed a party in the house of commons. the puritan movement included william brewster, an assistant to a court official who was disciplined for delivering, upon pressure from the council, the queen's signed execution order for mary of scotland after the queen had told him to hold it until she directed otherwise. after exhausting every other alternative, the queen had reluctantly agreed with her privy council on the execution in 1572 of mary, queen of scots, who had been involved in a plot to assassinate her and claim the throne of england. elizabeth's council had persuaded her that it was impossible for her to live in safety otherwise. the debased coinage was replaced by a recoinage of newly minted coins with a true silver weight. goldsmiths, who also worked silver, often acted as guardians of clients' wealth. they began to borrow at interest at one rate in order to lend out to traders at a higher rate. this began banking. patents were begun to encourage the new merchant lords to develop local manufactures or to expand import and export trade. patents were for a new manufacture or an improved older one and determined the wages of its trades. there was chartering of merchant companies and granting of exclusive rights to new industries as monopolies. some monopolies or licenses were patents or copyrights of inventors. others established trading companies for trade to certain foreign lands and supporting consular services. people holding monopolies were accountable to the government. there were monopolies on certain smoked fish, fish oil, seal oil, oil of blubber, vinegar, salt, currants, aniseed, juniper berry liquor, bottles, glasses, brushes, pots, bags, cloth, starch, steel, tin, iron, cards, horn, ox shinbones, ashes, leather pieces, earth coal, calamite stone, powder, saltpeter, and lead manufacturing by-products. for far-flung enterprises and those where special arrangements with foreign countries was required, there was sharing of stock of companies, usually by merchants of the same type of goods. in joint-stock companies each member took a certain number of shares and all the selling of the goods of each merchant was carried on by the officials of the company. the device of joint stock might take the form of a fully incorporated body or of a less formal and unincorporated syndicate. the greatest joint-stock company was east india company, chartered in 1600 to trade there in competition with the dutch east india company. it was given a fifteen year monopoly on trade east of the southern tip of africa. unlike the muscovy company, and merchants of the staple, individual members could not trade on their own account, but only through the corporate body on its voyages. each particular voyage was regulated and assisted by the crown and privy council, for instance when further subscriptions were needed, or when carpenters were needed to be pressed into service for fitting out ships, or to deal with an unsuccessful captain. its charter retained many of the aspects of the medieval trade guild: power to purchase lands, to sue and be sued, to make by-laws, and to punish offenders by fine or imprisonment. admission was by purchase of a share in a voyage, redemption, presentation, patrimony (adult sons of members), and apprenticeship. purchase of a share in a voyage was the most common method. a share for the first ship cost one hundred pounds. cash payments for less than the price of a share could be invested for ultimate redemption. occasionally presentation or a faculty "for the making of a freeman" was granted to some nobleman or powerful member. members' liability was limited to their individual subscriptions. each voyage had 1) a royal commission authorizing the company to undertake the expedition and vesting in its commanders powers for punishing offenses during the voyage, and quenching any mutiny, quarrels, or dissension that might arise; 2) a code of instructions from the company to the admiral and to commanders of ships setting forth in great detail the scope and objects of the voyage together with minute regulations for its conduct and trade; 3) authorization for coinage of money or export of specie (gold or silver); and 4) letters missive from the sovereign to foreign rulers at whose ports the ships were to trade. the first voyage brought back spices that were sold at auction in london for ten times their price in the indies and brought to shareholders a profit equivalent to 9 1/2% yearly for the ten years when the going interest rate was 8% a year. town government was often controlled by a few merchant wholesalers. the entire trade of a town might be controlled by its drapers or by a company of the merchant adventurers of london. the charter of the latter as of 1564 allowed a common seal, perpetual existence, liberty to purchase lands, and liberty to exercise their government in any part of the nation. it was controlled by a group of rich londoners, no more than 50, who owned the bulk of the cloth exported. there were policies of insurance given by groups of people for losses of ships and their goods. marine insurance was regulated. new companies were incorporated for many trades. they were associations of employers rather than the old guilds which were associations of actual workers. the ostensible reason was the supervision of the quality of the wares produced in that trade, though shoemakers, haberdashers, saddlers, and curriers exercised close supervision over these wares.companies paid heavily for their patents or charters. there was no sharp line between craftsman and shopkeeper or between shopkeeper and wholesale merchant. in london, an enterprising citizen could pass freely from one occupation to another. borrowing money for a new enterprise was common. industrial suburbs grew up around london and some towns became known as specialists in certain industries. the building crafts in the towns often joined together into one company, e.g. wrights, carpenters, slaters, and sawyers, or joiners, turners, carvers, bricklayers, tilers, wallers, plasterers, and paviors. these companies included small contractors, independent masters, and journeymen. the master craftsman often was a tradesman as well, who supplied timber, bricks, or lime for the building being constructed. the company of painters was chartered with a provision prohibiting painting by persons not apprenticed for seven years. the prosperous merchants began to form a capitalistic class as capitalism grew. competition for renting farm land, previously unknown, caused these rents to rise. the price of wheat rose to an average of 14s. per quarter, thereby encouraging tillage once more. there was steady inflation. with enclosure of agricultural land there could be more innovation and more efficiency, e.g. the time for sowing could be chosen. it was easier to prevent over-grazing and half-starved animals as a result. the complications of the open system with its endless quarrels and lawsuits were avoided. now noblemen talked about manure and drainage, rotation of crops, clover, and turnips instead of hunting, horses, and dogs. the breed of horses and cattle was improved. there were specializations such as the hunting horse and the coach horse. by royal proclamation of 1562, there were requirements for the keeping of certain horses. for instance, everyone with lands of at least 1,000 pounds had to keep six horses or geldings able for demi-lances [rider bearing a light lance] and ten horses or geldings for light horsemen [rode to battle, but fought on foot]. one with under 100 pounds but over 100 marks yearly had to keep one gelding for a light horseman. dogs had been bred into various types of hounds for hunting, water and land spaniels for falconry, and other dogs as house dogs or toy dogs. there were no longer any wild boar or wild cattle. the turkey joined the cocks, hens, geese, ducks, pigeons, and peacocks in the farmyard. manure and dressings were used to fertilize the soil. hay became a major crop because it could be grown on grazing lands and required little care. there are new and bigger industries such as glassware, iron, brasswares, alum and coppers, gunpowder, paper, coal, and sugar. the coal trade was given a monopoly. coal was used for fuel as well as wood, which was becoming scarce. iron smelters increasingly used coal instead of charcoal, which was limited. iron was used for firebacks, pots, and boilers. good quality steel was first produced in 1565 with the help of german craftsmen, and a slitting mill was opened in 1588. small metal goods, especially cutlery, were made, as well as nails, bolts, hinges, locks, ploughing and harrowing equipment, rakes, pitch forks, shovels, spades, and sickles. lead was used for windows and roofs. copper and brass were used to make pots and pans. pewter was used for plates, drinking vessels, and candlesticks. competition was the mainspring of trade and therefore of town life. the mode of travel of the gentry was riding horses, but most people traveled by walking. people carried passes for travel that certified they were of good conduct and not a vagrant or sturdy rogue. bands of roving vagabonds terrorized the countryside. after a land survey completed in 1579 there arose travel books with maps, itineraries, and mileage between towns in england and wales. also, the queen sent her official mail by four royal postal routes along high roads from london to various corners of the nation. horses are posted along the way for the mail-deliverer's use. however, private mail still goes by packman or common carrier. the nation's inland trade developed a lot. there were many more wayfaring traders operating from town inns. in 1564, the first canal was built with locks at exeter. more locks and canals facilitated river travel. at london bridge, waterwheels and pumps were installed. new sea navigation techniques improved voyages. seamen learned to fix their positions, using an astrolabe or quadrant to take the altitude of the sun and stars and to reckon by the north star. they used a nocturnal, which was read by touch, to help keep time at night by taking the altitude of the stars. they calculated tides. to measure distances, they invented the traverse board, which was bored with holes upon lines, showing the points of the compass; by means of pegs, the steersman kept an account of the course steered. a log tied to a rope with knots at equal intervals was used to measure speed. there were compasses with a bearing dial on a circular plate with degrees up to 360 noted thereon. seamen had access to compilations of arab mathematicians and astronomers and to navigational manuals and technical works on the science of navigation and the instruments necessary for precision sailing. for merchants there were maps, books about maps, cosmographical surveys, and books on the newly discovered lands. in 1569 john mercator produced a map taking into account the converging of the meridians towards the pole. on this chart, a straight line course would correspond to a mariner's actual course through the water on the earth's sphere, instead of having the inaccuracies of a straight line on a map which suggested that the world was flat. it was in use by 1600. in 1600 william gilbert, son of a gentleman, and physician to queen elizabeth, wrote a book on the magnetic properties of the earth. he cultivated the method of experiment and of inductive reasoning from observation and insisted on the need for a search for knowledge not in books but in things themselves. he showed that the earth was a great magnet with a north pole and a south pole, by comparing it to lodestones made into spheres in which a north and south pole could be found by intersecting lines of magnetism indicated by a needle on the stone. the vertical dip of the needle was explained by the magnetic attraction of the north pole. he showed how a lodestone's declination could be used to determine latitude at sea. he showed how the charge of a body could be retained for a period of time by covering the body with some non-conducting substance, such as silk. he distinguished magnetism from electricity, giving the latter its name. he discovered that atmospheric conditions affected the production of electricity, dryness decreasing it, and moisture increasing it. he expounded the idea of copernicus that the earth revolves around the sun in a solar system. however, the prevailing belief was still that the earth was at the center of the universe. christmas was an especially festive time of good fellowship. people greeted each other with "good cheer", "god be with you", or "against the new year". carols were often sung and musicians played many tunes. there was dancing and gambling. there were big dinners with many kinds of meat and drink. a hearty fire heated all the house. many alms were given to beggars. parliament enacted laws and voted taxes. the queen, house of lords, and house of commons cooperated together. there was relatively little dissension or debating. bills in the house of lords were read, voted on, discussed, and passed with the lords, peers, bishops, and justices sitting in their places according to their degree. the justices sat on the wool sacks. a bar separated this area from the rest of the room, where the members of the commons stood. there were many bills concerning personal, local, or sectional interests, but priority consideration was given to public measures. the house of lords still had 55 members. the queen appointed and paid the speaker, clerk, and sergeant at arms of the commons. the knights in the commons were almost invariably from the county's leading families and chosen by consensus of knights with free land of at least 40s. in the county court. in the towns, the electors might be the town corporation, holders of certain properties, all the freemen, all the rate-payers, or all the male inhabitants. disputed elections were not usually concerned with political issues, but were rivalries for power. the commons gradually won for its members freedom from arrest without its permission and the right of punishing and expelling members for crimes committed. tax on land remained at 10% of its estimated yearly income. the queen deferred to the church convocation to define christian faith and religion, thus separating church and state functions. the treasury sought to keep a balanced budget by selling royal land and keeping crown expenditures down. the crown carried a slight debt incurred before the queen's accession. violence was still a part of the texture of everyday life. private armories and armed gangs were not uncommon. agricultural laborers kept sword and bow in a corner of their fields. non-political brutal crime and homicides were commonplace. there were frequent local riots and disturbances, in the country and in the towns. occasionally there were large-scale rebellions. but the rebellion of the earl of essex in 1601 had no aftermath in violence. in 1590, the queen issued a proclamation enforcing curfew for london apprentices, who had been misruly. the queen issued proclamations to certain counties to place vagrant soldiers or vagrants under martial law because of numerous robberies. she ordered the deportation of vagrant irishmen in 1594. theft and robbery were so usual that there were names for various techniques used. a ruffler went with a weapon to seek service, saying that he was a servitor in the wars, but his chief "trade" was to rob poor wayfaring men and market women. a prigman went with a stick in his hand like an idle person, but stole clothes off hedges. a whipjack begged like a mariner, but with a counterfeit license (called a "gibe"); he mostly robbed booths in fairs or pilfered ware from stalls, which was called "heaving of the booth". a frater had a counterfeit license to beg for some hospital, but preyed upon poor women coming and going to market. a quire bird was a person recently let out of prison, and was commonly a horse stealer. an upright man carried a truncheon of a staff and called others to account to him and give him a share or "snap" of all that they had gained in one month, and he often beat them. he took the chief place at any market walk and other assemblies. workers at inns often teamed up with robbers, telling them of wares or money travelers were carrying so the robber could profitably rob them after they left the inn. francis drake sailed around the world from 1577 to 1580. walter ralegh made an expedition to north america in 1584 with the queen's authority to "discover barbarous countries, not actually possessed of any christian prince and inhabited by christian people, to occupy and enjoy". he found and named the land of virginia in honor of the queen, who was a virgin, and started a colony on roanoke island there. drake and ralegh plundered spanish ships for cargo such as american gold and silver, much of which was used to pay for the war with spain and much going to investors. seamen on navy and pirate ships raided captured vessels to seize personal possessions of the spanish on board. the experience fighting spanish ships led to improvements in ship design; building ships was no longer merely by copying another ship or a small model. when the seas were unsafe because of the war with spain, the export of english wool was disturbed and later replaced by trading from world ports. many london merchants grew rich from using their ships for pirating. in 1588, a spanish armada came to invade england, return it to catholicism, and stop the pirating of spanish ships. in that battle off england's shores, drake and other experienced sea fighters led two hundred english ships, of which about 20 were built to sink other ships rather than to board and capture them. these new english ships were longer and narrower and did away with the towering superstructures at bow and stern. this made them more maneuverable and easier to sail. also, the english guns were lighter, more numerous, and outranged the spanish guns. so the smaller english ships were able to get close enough to fire broadside after broadside against the big spanish troop-transport galleons, without being fired upon. the english sent fire ships into the spanish fleet when it was anchored, causing it's ships to disperse in a panic. then the direction of the wind forced the spanish galleons northward, where most of them were destroyed by storms. the english seamen had been arbitrarily pressed into this service. a royal proclamation of 1601 offered a reward of 100 pounds for information on libels against the queen. there had been mounting demonstrations against her monopolies, which mostly affected household items. there had been abuses of monopolies, such as the steel monopoly had been sold for 12 pounds 10s., but steel was then sold at 5d. per pound instead of the former 2 1/2 d. per pound. further the steel was mixed and of a lesser quality. this so damaged the knife and sword industry that about 2000 workers lost their jobs from it and became beggars. monopoly was a severe burden to the middle and poorer classes. also, the power of patent holders to arrest and imprison persons charged with infringing upon their rights was extended to any disliked person. when the house of commons protested against monopolies in 1601, elizabeth reduced them. she addressed her council and the commons saying that "mr. speaker, you give me thanks, but i doubt me that i have more cause to thank you all than you me; and i charge you to thank them of the lower house from me. for had i not received a knowledge from you, i might have fallen into the lapse of an error only for lack of true information. since i was queen yet did i never put my pen to any grant but that upon pretext and semblance made unto me, it was both good and beneficial to the subject in general, though a private profit to some of my ancient servants who had deserved well. but the contrary being found by experience, i am exceedingly beholding to such subjects as would move the same at the first. and i am not so simple to suppose but that there be some of the lower house whom these grievances never touched; and for them i think they speak out of zeal to their countries and not out of spleen or malevolent affection, as being parties grieved. and i take it exceedingly gratefully from them, because it gives us to know that no respects or interests had moved them other than the minds they bear to suffer no diminution of our honor and our subjects' love unto us, the zeal of which affection tending to ease my people and knit their hearts unto me, i embrace with a princely care. for above all earthly treasures i esteem my people's love, more than which i desire not to merit. that my grants should be grievous unto my people and oppressions to be privileged under color of our patents, our kingly dignity shall not suffer it. yea, when i heard it i could give no rest unto my thoughts until i had reformed it. shall they (think you) escape unpunished that have thus oppressed you, and i have been respectless of their duty and regardless of our honor? no, no, mr. speaker, i assure you, were it not more for conscience' sake than for any glory or increase of love that i desire, these errors, troubles, vexations, and oppressions done by these varlets and low persons (not worthy the name of subjects) should not escape without condign punishment. but i perceive they dealt with me like physicians who, ministering a drug, make it more acceptable by giving it a good aromatical savor; or when they give pills, do gild them all over. i have ever used to set the last judgment day before my eyes and so to rule as i shall be judged, to answer before a higher judge. to whose judgment seat i do appeal that never thought was cherished in my heart that tended not unto my people's good. and now if my kingly bounties have been abused and my grants turned to the hurts of my people, contrary to my will and meaning, or if any in authority under me have neglected or perverted what i have committed to them, i hope good will not lay their culps [sins] and offenses to my charge. who, though there were danger in repealing our grants, yet what danger would i not rather incur for your good than i would suffer them still to continue? i know the title of a king is a glorious title, but assure yourself that the shining glory of princely authority hath not so dazzled the eyes of our understanding but that we well know and remember that we also are to yield an account of our actions before the great judge. to be a king and wear a crown is a thing more glorious to them that see it than it is pleasant to them that bear it. for myself, i was never so much enticed with the glorious name of a king or royal authority of a queen as delighted that god hath made me his instrument to maintain his truth and glory, and to defend this kingdom from peril, dishonor, tyranny, and oppression. there will never queen sit in my seat with more zeal to my country, care to my subjects, and that will sooner with willingness venture her life for your good and safety, than myself. for it is not my desire to live or reign longer than my life and reign shall be for your good. and though you have had and may have many princes more mighty and wise sitting in this seat, yet you never had or shall have any that will be more careful and loving." about 1584, richard hakluyt, a bristol clergyman, wrote "a particular discourse concerning western discoveries". this was to become the classic statement of the case for english colonization. it held out hope that the english would find needed timber for masts, pitch, tar, and ashes for soap. in rome in 1600, giordano bruno, an italian monk and priest, was burned alive at the stake by a court of the inquisition for not recanting, although tortured, his heretical and blasphemous philosophy. he had opined that christianity was irrational and had no scientific basis. he declared that christ was only a skillful magician, that the bible could not be taken literally, that god and nature were not separate as taught by genesis, that the catholic church encouraged ignorance from the instinct of self-preservation, and that the earth and planets revolved around the sun, as did other planets around the "fixed" stars and other suns. the jesuits, a new catholic order brimming with zeal, sent missionaries to england to secretly convert people to catholicism. the practice of catholicism had gone underground in england, and some catholic householders maintained catholic priests in hidden places in their homes. although estate tails (estates descendible only to the heirs of the body of the original feofee) by law could not be sold or given away, this was circumvented by the fraudulent use of a "straw man". in collaboration with the possessor of the property, this straw man sued the possessor asserting that the property had been wrongfully taken from the straw man. the possessor pleaded that the crier of the court who had warranted the title should be called to defend the action. he failed to appear until after judgment had been given to the straw man. then the straw man conveyed it to the possessor or his nominee in fee simple. the law the following statute of artificers regulated labor for the next two centuries: no master or mistress may employ a servant for a term less than one year in the crafts of clothiers, woolen cloth weavers, tuckers, fullers, clothworkers, shearmen, dyers, hosiers, tailors, shoemakers, glovemakers, tanners, pewterers, bakers, brewers, cutlers, smith, farriers, curriers, saddlers, spurriers, turners, cappers, hatmakers, feltmakers, bow-makers, arrow-makers, arrowhead-makers, butchers, cooks, or millers. also, every craftsman unmarried or under age 30 who is not working must accept employment by any person needing the craft work. also, any common person between 12 and 60 who is not working must accept employment in agriculture. and, unmarried women between 12 and 40 may be required by town officials to work by the year, the week, or day for wages they determine. all artificers and laborers hired by the day or week shall work from 5 am to 7 pm. all artificers must labor at agriculture at haytime and harvest to avoid the loss of grain or hay. every householder who raises crops may receive as an apprentice a child between 10 and 18 to serve in agriculture until he is age 21. a householder in a town may receive a child as an apprentice for 7 years, but merchants may only take as apprentices children of parents with 40s. freehold. no one may be a craftsman until he has served seven years as an apprentice. these artificers may have children as apprentices: smith, wheelmaker, ploughmaker, millmaker, miller, carpenter, rough mason, plasterer, a timber sawer, an ore burner, a lime burner, brickmaker, bricklayer, tilemaker, tiler, layer of slate roofs, layer of wood shingle roofs, layer of straw roofs, cooper, earthen potter, linen weaver, housewife who weaves wool for sale or for household use. purposes of the statute of artificiers were to advance agriculture, diminish idleness, and inhibit migration to the towns. it excluded three fourths of the rural population.) troops of vagabonds with weapons in the highways who pretend to be soldiers or mariners have committed robberies and murders. so all vagabonds shall settle down in some service or labor or trade. a vagabond or mighty strong beggar [able to work] shall be whipped. incorrigible and dangerous rogues shall be branded with an "r" mark on the left shoulder and be put to labor, because banishment did not work as they came back undetected. if one is caught again begging, he shall be deemed a felon. if a person marries a second time while the first spouse is still living, it shall be a felony and thus punishable by death. no attainder shall result in the forfeiture of dower by the offender's wife nor disinheritance of his heirs. no one shall forge a deed of land, charter, sealed writing, court roll or will. no one shall libel or slander so as to cause a rebellion. embezzlement or theft by a servant of his master's goods of 40s. or more is a felony. cut-purses and pick-purses shall not have benefit of clergy. a person robbing a house of 5s. by day when no one is there shall not have benefit of clergy, because too many poor persons who cannot hire a servant to look after their house when they go to work have been robbed. benefit of clergy may not be had for stabbing a person who has no weapon drawn, if he dies within six months. fraudulent and secret conveyances made to retain the use of one's land when one sells the land to a bona fide purchaser for value in fee simple, fee tail, for life, for lives, or for years are void. crown officials such as treasurers, receivers, accountants, and revenue collectors shall not embezzle crown funds and shall be personally liable for arrears. persons forcibly taking others across county lines to hold them for ransom and those taking or giving blackmail money and those who burn barns or stacks of grain shall be declared felons and shall suffer death, without any benefit of clergy or sanctuary. any person killing any pheasant, partridge, dove, pigeon, duck or the like with any gun, crossbow, stonebow, or longbow, or with dogs and nets or snares, or taking the eggs of such from their nests, or tracing or taking hares in the snow shall be imprisoned for three months unless he pays 20s. per head or, after one month's imprisonment, have two sureties bound for 400s. this is because the past penalty of payment hasn't deterred offenders, who frequently cannot pay. persons affected by the plague may not leave their houses or be deemed felons and suffer death. this is to avoid further infection. the towns may tax their inhabitants for the relief of infected persons. devising or speaking seditious rumors are penalized by the pillory and loss of both ears for the first offense; and 200 pounds and six months imprisonment for the second offense. slandering the queen is penalized by the pillory and loss of one ear, or by 100 marks and three months imprisonment, at the choice of the offender. the second offense is a felony. printing, writing, or publishing seditious books is a felony without benefit of clergy. wishing the queen dead, prophesying when she would die, or who would succeed her to the crown is a felony without benefit of clergy. attainders for these felonies shall not work corruption of the blood [heirs may inherit the property of the felon]. a debtor may not engage in a fraudulent collusion to sell his land and goods in order to avoid his creditors. this was designed to remedy the following problem: a native or denizen merchant in wholesale or retail goods who leaves the nation to defraud his creditors shall be declared a bankrupt. the chancellor may conduct an investigation to ascertain his land, house, and goods, no matter who may hold them. they shall be appraised and sold to satisfy his debts. lands, tenements, goods and chattels of accountants teller, or receiver who are in debt may be obtained by court order to satisfy the debt by garnishing the heir of the debtor after the heir has reached 21 and for the 8 years next ensuing. loan contracts for money lent may not be for more than 200s. for each 2000s. yearly (i.e. 10% interest). all loans of money or forbearing of money in sales of goods not meeting this requirement shall be punishable by forfeit of the interest only. pawn brokers accepting stolen goods shall forfeit twice their value to the owner from whom stolen. when the hue and cry is raised for a robbery in a hundred, and other hundreds have been negligent, faulty, or defective in pursuit of the robber, then they must pay half the damages to the person robbed, while the hundred in which the robbery occurred pays the other half. robbers shall be pursued by horse and by foot. the mother and reputed father of any bastard who has been left to be kept at the parish where born must pay weekly for the upkeep and relief of such child, so that the true aged and disabled of the parish get their relief and to punish the lewd life. any innkeeper, victualer, or alehouse keeper who allows drinking by persons other than those invited by a traveler who accompanies him during his necessary abode there or other than laborers and handicraftsmen in towns upon the usual working days for one hour at dinner time to take their diet in an alehouse or other than laborers and workmen following their work to any given town to sojourn, lodge, or victual in any inn, alehouse or victualing house shall forfeit 10s. for each offense. this is because the use of inns, alehouses, and victualing houses was intended for relief and lodgings of traveling people and people not able to provide their own victuals, but not for entertainment and harboring of lewd and idle people who become drunk. no butcher may cut any hide or any ox, bull, steer, or cow so that it is impaired or may kill any calf under five weeks old. no butcher may be a tanner. no one may be a tanner unless that person has apprenticed as such for seven years, or is the son or wife of a tanner who has tanned for four years, or is a son or daughter of a tanner who inherits his tanhouse. tanners may not be shoemakers, curriers, butchers, or leatherworkers. only tanners may buy raw hides. only leatherworkers may buy leather. only sufficiently strong and substantial leather may be used for sole-leather. curriers may not be tanners. curriers may not refuse to curry leather. london searchers shall inspect leather, seal and mark that which is sufficient, and seize any that is insufficiently tanned, curried, wrought, or used. the incorporated company of ship masters may erect beacons and marks on the seashores and hills above, because certain steeples and other marks used for navigation have fallen down and ships therefore have been lost in the sea. there shall be one sheriff per county, because now there are enough able men to supply one per county. no one shall bribe an elector to vote for a certain person for fellow, scholar, or officer of a college, school, or hall or hospital so that the fittest persons will be elected, though lacking in money or friends, and learning will therefore be advanced. no master at a university may lease any land unless 1/3 of it is retained for raising crops to supply the colleges and halls for food for their scholars. fish, but no meat, may be eaten on wednesdays so that there will be more fishermen and mariners and repair of ports. (this was done because fishing had declined since the dissolution of the monasteries, where fissh was eaten eveery friday. eating fish instead of meat in lent in the springtime remained a tradition.) every person over 6 years of age shall wear on sundays a wool knitted cap made by the cappers, except for maidens, ladies, gentlewomen, noble persons, and every lord, knight, and gentlemen with 2,667s. of land, since the practice of not wearing caps has damaged the capping industry. this employed cappers and poor people they had employed and the decrepit and lame as carders, spinners, knitters, parters, forsers, thickers, dressers, dyers, battelers, shearers, pressers, edgers, liners, and bandmakers. no man under the degree of knight may wear a hat or cap of velvet. caps may not be made of felt, but only knit wool. only hats may be made of felt. this is to assist the craft of making wool caps. no one may make any hat unless he has served as apprentice for at least seven years. this is to prevent false and deceitful hatmaking by unskillful persons. no one shall make false linen by stretching it and adding little pieces of wood, which is so weak that it comes apart after five washings. timber shall not be felled to make logs for fires for the making of iron. no one may take small fish to feed to dogs and pigs. only nets with mesh leaving three inches spaces may be used to catch fish. cottage and dwelling houses for workmen or laborers in mineral works, coal mines, or quarries of stone or slate for the making of brick, tile, lime, or coals shall be built only within a mile from such works. dwelling houses beyond this must be supported by four acres of land to be continually occupied and manured as long as the dwelling house is inhabited or else forfeit 40s. per month to the queen. cottages and dwelling houses for sailors or laborers working on ships for the sea shall be built only within a mile of the sea. a cottage may be built in a forest or park for a game keeper of the deer. a cottage may be built for a herdman or shepherd for the keeping of cattle or sheep of the town. a cottage may be built for a poor, lame, sick, aged, or disabled person on waste or common land. more families than one may not be placed in one cottage or dwelling house. (this is a zoning law.) any person with land in fee-simple may establish a hospital, abiding place, or house of correction to have continuance forever as a corporation for the sustenance and relief of the maimed, poor, or disabled people as to set the poor to work. the net income shall not exceed 40,000s. yearly. no new iron mills or furnaces for making or working of any iron or iron metal shall be established in the country around london and the owners of carriages of coals, mines and iron which have impaired or destroyed the highways shall also carry coal ashes, gravel, or stone to repair these highways or else make a payment of 2s.6d. for each cart load not carried. for repairing of highways, the supervisors may take the rubbish or smallest stones of any quarry along the road in their precinct. persons with 100s. in goods or 40s. in lands shall find two able men in their parish community to repair the highways yearly. landowners of oxford shall be taxed for the repair of the highway and bridge there. the price of barrels shall be set by mayors of the towns where they are sold. rugs shall weigh 44 pounds at least and be 35 yards at least in length and at most 3/4 yard wide. no cattle may be put in any enclosed woods that have been growing less than five years. at the end of five years growth, calves may be put in. at the end of six years growth, cattle may be put in. woods around london shall not be felled to be converted to coals for iron-works because london needs the wood to make buildings and for fireplaces. every melter and maker of wax from honeycombs shall put his mark on every piece of his wax to be sold. wrought wax such as in lights, staff-torches, red wax or sealing wax, book candles, or searing candles shall bear its maker's mark. all barrels of honey shall bear the mark of the honeymaker. wool cloth, cotton cloth, flannel cloth, hose-yarn, hats, and caps shall be dyed black only with dye from the woad plant and not with any false black dye. no one shall take or kill any pheasants with nets or devices at nighttime because such have become scarce. pontage [toll for upkeep and repair of bridges] shall be taken at certain bridges: carts 2d., horse and pack 1d., a flock of sheep 2d. no bishop may lease land for more than twenty-one years or longer than the lives of three designated persons. no bishop may alienate any possession of their sees to the crown. such are void. watermen transporting people on the thames river shall have served as apprentice to a waterman for five years or have been the son of a waterman. this is to prevent the loss of lives and goods by inexperienced watermen. spices and potions, including pepper, cloves, mace, nutmeg, cinnamon, ginger, almonds, and dates, which have usually been garbled [cleaned or sorted by sifting] shall be garbled, cleaned, sorted, and sealed by the garbler before sale. this is to prevent mingled, corrupt, and unclean spices and potions from being sold. plasterers shall cease painting because it has intruded upon the livelihoods of painters who have been apprenticed as such. fishermen and their guides may continue to use the coastland for their fishing activities despite the trespass to landowners. since sails for ships in recent years have been made in the realm instead of imported, none shall make such cloth unless he has been apprenticed in such or brought up in the trade for seven years. this is to stop the badness of such cloth. tonnage and poundage on goods exported and imported shall be taken to provide safeguard of the seas for such goods. all persons must go to the established church on sundays and holy days. the penalty was at first forfeiture 12d. along with church punishment, and later, 20 pounds per month and being bound by two sureties for 200 pounds for good behavior, and if the 20 pounds is not paid, then forfeiture of all goods to be applied to the amount due and two-thirds of one's land. these laws were directed against catholicism, but were laxly enforced as long as worship was not open and no one wore priestly clothes: 1) the writing, preaching, or maintaining of any foreign spiritual jurisdiction shall be punished by forfeiture of goods or, if the goods are not worth 20 pounds, one year imprisonment, for the first offense; forfeiture of goods and lands and the king's protection, for the second offense; and the penalty for high treason for the third offense. 2) any person leading others to the romish [catholic] religion is guilty of high treason. the penalty for saying mass is 200 marks and one year's imprisonment. the penalty for hearing mass is 100 marks and one year's imprisonment. if one is suspected of being a jesuit or priest giving mass, one must answer questions on examination or be imprisoned. 3) papists [those who in conscience refused to take the oath of supremacy of the crown over the church] must stay in their place of abode and not go five miles from it, unless licensed to do so for business, or else forfeit one's goods and profits of land for life. if a copyholder, land is forfeited to one's lord. but if the goods are not worth 800s. or the land is not worth at least 267s., the realm must be abjured. otherwise, the papist is declared a felon without benefit of clergy. 4) if a child is sent to a foreign land for catholic education, he cannot inherit lands or goods or money, unless he conforms to the established church on his return. there is also a 100 pound penalty for the persons who sent him. judicial procedure the star chamber became the central criminal court after 1560, and punished perjury, corruption, malfeasance throughout the legal system such as jury corruption and judicial bribery, rioting, slander, and libel. its procedure was inquisitory rather than accusative. it heard witnesses in camera [not in the presence of the suspected]. trial was by systematic interrogation of the suspected on oath, with torture if necessary in treason cases. silence could be taken for a confession of guilt. there was no jury. queen elizabeth chose not to sit on this court. punishments were imprisonment, fines, the pillory, ear cropping or tacking, whipping, stigmata on the face, but not death or any dismemberment except for the ears. (the gentry was exempt from whipping.) because the publication of many books and pamphlets against the government, especially the church, had led to discontents with the established church and to the spreading of sects and schisms, the star chamber in 1585 held that the printing trade was to be confined to london, except for one press at oxford and one at cambridge. no book or pamphlet could be printed unless the text was first seen, examined, and allowed by the archbishop of canterbury or the bishop of london. book publishers in violation were to be imprisoned for six months and banned from printing; their equipment was to be destroyed. wardens were authorized to search wherever "they shall have reasonable cause of suspicion", and to seize all such books and pamphlets printed. but printers continued to print unlicensed material. the ecclesiastical high commission [later called the court of high commission or high court of ecclesiastical causes] took over criminal cases formerly heard by the church courts. it also heard matters of domestic morals. it was led by bishops and privy council members who in 1559 were authorized by a statute of parliament to keep order within the church, discipline the clergy, and punish such lay offenses as were included in the ecclesiastical jurisdiction. obstinate heresy is still a crime punished by death, but practically, the bishops have little power of forcing heretics to stand trial. if anyone maintains papal authority, he forfeits his goods; on a third conviction, he is a traitor. the clergyman who adopts a prayer book other that the prescribed one commits a crime. excommunication has imprisonment behind it. elizabeth gave this court the power to fine and imprison, which the former church courts had not had. at first, the chief work was depriving papists of their benefices. suits on titles to land were restricted to the common law courts and no longer to be heard in the star chamber, chancery court, or in the court of requests (equity for poor people). the queen's privy council investigated sedition and treason, security of the regime, major economic offenses, international problems, civil commotion, officials abusing their positions, and persons perverting the course of justice. it frequently issued orders to justices of the peace, for instance to investigate riots and crimes, to enforce the statutes against vagrancy and illegal games, to regulate alehouses, to ensure that butchers, innkeepers, and victualers did not sell meat on fish days, and to gather information needed from the counties. the justices of the peace decided misdemeanors such as abduction of heiresses, illegal entry, petty thievery, damage to crops, fence-breaking, brawling, personal feuds, drunken pranks, swearing, profanation of the sabbath, alehouse nuisances, drunkenness, perjury, and malfeasance by officials. they held petty and quarter sessions. the justices of the peace had administrative duties in control of vagrancy, upkeep of roads and bridges, and arbitration of lawsuits referred to them by courts. they listed the poor in each parish community, assessed rates for their maintenance, and appointed overseers to administer the welfare system, deploying surplus funds to provide houses of correction for vagrants. raw materials such as wool, flax, hemp, and iron were bought upon which the able-bodied unemployed could be set to work at the parochial level. they determined wages in their districts, with no statutory ceiling on them, for all laborers, weavers, spinsters, workmen and workwomen working by the day, week, month, or year, or taking any work at any person's hand. there were about 50 justices of the peace per county. all were unpaid. they performed these duties for the next 200 years. the court of queen's bench and exchequer indirectly expanded their jurisdiction to include suits between citizens, formerly heard only the court of common pleas or chancery. chancery interrogated defendants. chancery often issued injunctions against suits in the common law courts. trial by combat was very rare. the justices of assize rode on circuit twice a year to enforce the criminal law and reported their assessment of the work of the justices of the peace back to the privy council. the duty to hear and determine felonies was taken from justices of the peace by 1590. the justices of assize did this work. accused people could wait for years in gaol before their case was heard. felonies included breach of prison, hunting by night with painted faces, taking horses to scotland, stealing of hawks' eggs, stealing cattle, highway robbery, robbing on the sea, robbing houses, letting out of ponds, cutting of purses, deer-stealing at night, conjuring and witchcraft, diminution of coin, counterfeiting of coins, and impenitent roguery and idleness. the penalty was death. many people were hanged for the felony of theft over 12d. some bold men accused of felony refused to plead so that they could not be tried and found guilty. they died of heavy weights being placed on their bodies. but then their property could go to their heirs. trials of noblemen for treason shall be by their peers. stewards of leet and baron courts may no longer receive, in their own names, profits of the court over 12d. since they have vexed subjects with grievous fines and amercements so that profits of justice have grown much. jurors shall be selected from those people who have at least 80s. annual income instead of 40s. because sheriffs have been taking bribes by the most able and sufficient freeholders to be spared at home and the poorer and simpler people, who are least able to discern the causes in question, and most unable to bear the charges of appearance and attendance in such cases have been the jurors. also there had been inflation. defendants sued or informed against upon penal statutes may appear by attorney so that they may avoid the inconvenience of traveling a long distance to attend and put to bail. not only sheriffs, but their employees who impanel juries or execute process in the courts shall take an oath of office. a hundred shall answer for any robbery therein only if there has been negligence or fault in pursuit of the robber after a hue and cry is made because the past law has been too harsh and required payment for offenses from people unable to pay who have done everything reasonable to catch the robber. pleadings had to be in writing and oral testimony was given by sworn witnesses. case decisions are in books compiled by various reporters who sit in on court hearings rather than in year books. in the common law, trespass has given rise to the offshoot branch of "ejectment", which becomes the common means of recovering possession of land, no matter what kind of title the claimant asserts. trespass on the case has given rise to the offshoot branch of "trover" [finding another's goods and converting them to one's own use]. the use of the action of trover gradually supplants the action of detinue, which involves compurgation. in the common law courts, the action of assumpsit for enforcing certain promises is used more than the action of debt in those cases where there is a debt based on an agreement. the essential nature of "consideration" in contract is evolving from the procedural requirements for the action of assumpsit. consideration may consist in mutual promises, a precedent debt, or a detriment incurred by one who has simultaneously received a promise related to the detrimental action. consideration must be something, an act, or forbearance of an act that is of value. for instance, forbearance to sue a worthless claim is not consideration. the abstract concept of contract as an agreement between two parties which is supported by consideration is developing as the number of various agreements that are court enforceable expands. for instance the word "consideration" is used in hayward's case in 1595 in the court of wards on the construction of a deed. sir rowland hayward was seised in fee of the doddington manor and other lands and tenements, whereof part was in demesne, part in lease for years with rents reserved, and part in copyhold, by indenture, "in consideration of a certain sum of money" paid to him by richard warren and others, to whom he demised, granted, bargained and sold the said manor, lands and tenements, and the reversions and remainders of them, with all the rents reserved upon any demise, to have and to hold to them and their assigns, presently after the decease of sir rowland, for the term of 17 years. it was held that the grantees could elect to take by bargain and sale or by demise, each of which had different consequences. in another case, a delivered 400s. to b to the use of c, a woman, to be delivered to her on the day of her marriage. before this day, a countermanded it, and called home the money. it was held in the chancery court that c could not recover because "there is no consideration why she should have it". in a case concerning a deed, a sold land to b for 400s., with confidence, that it would be to the use of a. this bargain "hath a consideration in itself ... and such a consideration is an indenture of bargain and sale". it was held that the transaction was not examinable except for fraud and that a was therefore estopped. a court reporter at the king's bench formulated two principles on consideration of the case of wilkes against leuson as: "the heir is estopped from falsifying the consideration acknowledged in the deed of feoffment of his ancestor. where a tenant in capite made a feoffment without consideration, but falsely alleged one in the deed on an office finding his dying seised, the master of the wards cannot remove the feoffees on examining into the consideration, and retain the land until &c. and though the heir tended, still if he do not prosecute his livery, the queen must admit the feoffees to their traverse, and to have the farm, &c." the court reporter summarized this case as follows: wilkes, who was merchant of the staple, who died in february last past, made a feoffment in the august before his death to one leuson, a knight, and his brother, and another, of the manor of hodnel in the county of warwick; and the deed, (seen) for seven thousand pounds [140,000s.] to him paid by the feoffees, of which sum he made acquittance in the same deed (although in fact and in truth not a half-penny was paid), gave, granted, and confirmed &c "habendum eir et hoeredibus suis in perpetuum, ad proprium opus et usum ipsorum a. b. et c. in perpetuum," and not "hoeredum suorum," together with a clause of warranty to them, their heirs and assigns, in forma proedicta: and notwithstanding this feoffment he occupied the land with sheep, and took other profits during his life; and afterwards his death was found on a diem clausit extremum by office, that he died seised of the said manor in fee, and one i. wilkes his brother of full age found his next heir, and a tenure in capite found, and now within the three months the said feoffees sued in the court of wards to be admitted to their traverse, and also to have the manor in farm until &c. and although the said i. wilkes the brother had tendered a livery, yet he had not hitherto prosecuted it, but for cause had discontinued. and whether now the master of the wards at his discretion could remove the feoffees by injunction out of possession upon examination of the said consideration of the said feoffment which was false, and none such in truth, and retain it in the hands of the queen donec et quousque &c. was a great question. and by the opinion of the learned counsel of that court he cannot do it, but the queen is bound in justice to give livery to him who is found heir by the office, or if he will not proceed with that, to grant to the tenderers the traverse, and to have the farm, &c. the request above mentioned. and this by the statutes ... and note, that no averment can be allowed to the heir, that the said consideration was false against the deed and acknowledgment of his ancestor, for that would be to admit an inconvenience. and note the limitation of the use above, for divers doubted whether the feoffees shall have a fee-simple in the sue, because the use is not expressed, except only "to themselves (by their names) for ever;" but if those words had been wanting, it would have been clear enough that the consideration of seven thousand pounds had been sufficient, &c. for the law intends a sufficient consideration by reason of the said sum; but when the use is expressed otherwise by the party himself, it is otherwise. and also the warranty in the deed was "to them, their heirs, and assigns, in form aforesaid," which is a declaration of the intent of wilkes, that the feoffees shall not have the use in fee simple; and it may be that the use, during their three lives, is worth seven thousand pounds, and more &c. and suppose that the feoffment had been "to have to them and their heirs to the proper use and behoof of them the feoffees for the term of their lives for ever for seven thousand pounds," would they have any other estate than for the term of their lives in the use? i believe not; and so in the other case. a last example of a case concerning consideration is that of assaby and others against lady anne manners and others. the court reporter characterized the principle of the case as: "a. in consideration of his daughter's marriage covenants to stand seised to his own use for life, and that at his death she and her husband shall have the land in [fee] tail, and that all persons should stand seised to those uses, and also for further assurance. after the marriage he bargains and sell with fine and recovery to one with full notice of the covenants and use; this is of no avail, but on the death of a. the daughter and her husband may enter." the court reporter summarized this case as follows: a. was seised of land in fee, and in consideration of a marriage to be had between his daughter and heir apparent, and b. son and heir apparent of c. he covenanted and agreed by indenture with c. that he himself would have, hold, and retain the land to himself, and the profits of during his life, and that after his decease the said son and daughter should have the land to them and to the heirs of their two bodies lawfully begotten, and that all persons then or afterwards seised of the land should stand and be seised immediately after the marriage solemnized to the use of the said a. for the term of his life, and after his death to the use of the said son and daughter in tail as above, and covenanted further to make an assurance of the land before a certain day accordingly &c. and then the marriage took effect; and afterwards a. bargained and sold the land for two hundred marks (of which not a penny is paid) to a stranger, who had notice of the first agreements, covenants, and use, and enfeoffed divers persons to this last use, against whom a common recovery was had to his last use; and also a. levied a fine to the recoverers before any execution had, and notwithstanding all these things a. continued possession in taking the profits during his life; and afterwards died; and the son and daughter entered, and made a feoffment to their first use. and all this matter was found in assize by assaby and others against lady anne manners and others. and judgment was given that the entry and feoffment were good and lawful, and the use changed by the first indenture and agreement. yet error was alleged. the judgment in the assize is affirmed. the famous shelley's case stands for the principle that where in any instrument an estate for life is given to the ancestor, and afterwards by the same instrument, the inheritance is limited whether mediately, or immediately, to his heirs, or heirs of his body, as a class to take in succession as heirs to him, the word "heirs" is a word of limitation, and the ancestor takes the whole estate. for example, where property goes to a for life and the remainder goes to a's heirs, a's life estate and the remainder merge into a fee in a. a can sell or devise this interest. edward shelley was a tenant in fee tail general. he had two sons. the older son predeceased his father, leaving a daughter and his wife pregnant with a son. edward had a common recovery (the premises being in lease for years) to the use of himself for term of his life, after his decease to the use of the male heirs of his body, and of the male heirs of the body of such heirs, remainder over. after judgment and the awarding of the writ of seisin, but before its execution, edward died. after his death, and before the birth of his older son's son, the writ of seisin was executed. the younger son entered the land and leased it to a third party. afterwards, the son of the older son was born. he entered the land and ejected the third party. it was held that the younger son had taken quasi by descent until the birth of the older son's son. the entry by the older son's son was lawful. the third party was lawfully ejected. (shelley's case, king's bench, 1581, english reports full reprint, vol. 76, page 206.) about 1567, london authorities punished nicholas jennings alias blunt for using elaborate disguises to present himself as an epileptic to beg for handouts from the public. he was pilloried, whipped, and pulled behind a cart through the streets. he was kept at the bridewell and was set to work at a mill. chapter 14 the times: 1601-1625 due in part to increasing population, the prices of foodstuffs had risen sixfold from the later 1400s, during which it had been stable. this inflation gradually impoverished those living on fixed wages. landlords could insist on even shorter leases and higher rents. london quadrupled in population. many lands that were in scattered strips, pasture lands, waste lands, and lands gained from drainage and disafforestation were enclosed for the introduction of convertible agriculture (e.g. market-oriented specialization) and only sometimes for sheep. the accompanying extinguishment of common rights was devastating to small tenants and cottagers. gentry and yeomen benefited greatly. there was a gradual consolidation of the land into fewer hands and demise of the small family farm. in towns, the mass of poor, unskilled workers with irregular work grew. prices finally flattened out in the 1620s. society became polarized with a wealthy few growing wealthier and a mass of poor growing poorer. this social stratification became a permanent fixture of english society. poverty was no longer due to death of a spouse or parent, sickness or injury, or a phase in the life cycle such as youth or old age. many full-time wage earners were in constant danger of destitution. more subdivided land holdings in the country made holdings of cottagers minuscule. but these were eligible for parish relief under the poor laws. beside them were substantial numbers of rogues and vagabonds wandering the roads. these vagrants were usually young unmarried men. there were no more licensed liveries of lords. during the time 1580 to 1680, there were distinct social classes in england which determined dress, convention in comportment which determined face-to-face contacts between superiors and inferiors, order of seating in church, place arrangement at tables, and rank order in public processions. it was influenced by power, wealth, life-style, educational level, and birth. the various classes lived in separate worlds; their paths did not cross each other. people moved only within their own class. each class had a separate existence as well as a different life style from the other classes. so each class developed a wariness of other classes. however, there was much social mobility between adjacent classes. at the top were the gentry, about 2% of the population. theirs was a landed wealth with large estate mansions. they employed many servants and could live a life of leisure. their lady wives often managed the household with many servants and freely visited friends and went out shopping, riding, or walking. they conversed with neighbors and made merry with them at childbirths, christenings, churchings, and funerals. gentlemen usually had positions of responsibility such as lords of manors and leaders in their parishes. these families often sent the oldest son to university to become a justice of the peace and then a member of parliament. they also served as county officers such as high constable of their hundred and grand jury member. their social, economic, and family ties were at least countywide. they composed about 700 gentle families, including the peers, who had even more landed wealth, which was geographically dispersed. after the peers were: baronets (created in 1611), knights, esquires, and then ordinary gentlemen. these titles were acquired by being the son of such or by purchase. most gentry had a house in london, where they spent most of their time, as well as country mansions. about 4/5 of the land was in the hands of 7,000 of the nobility and landed gentry due in part to estate tails constructed by attorneys to favor hereditary interests. the gentry had also profited by commerce and possessions in the colonies. the country life of a country squire or gentleman dealt with all the daily affairs of a farm. he had men plough, sow, and reap. he takes part in the haying and getting cut grass under cover when a rain came. his sow farrows; his horse is gelded; a first lamb is born. he drags his pond and takes out great carps. his horses stray and he finds them in the pound. boys are bound to him for service. he hires servants, and some work out their time and some run away. knaves steal his sheep. his hog is stabbed. he and a neighbor argue about the setting up of a cottage. he borrows money for a daughter's dowry. he holds a leet court. he attends church on sunday and reads the lesson when called upon. he visits the local tavern to hear from his neighbors. country folk brawl. wenches get pregnant. men commit suicide, usually by hanging. many gentlemen spent their fortunes and died poor. new gentlemen from the lower classes took their places. the second class included the wealthier merchants and professional men of the towns. these men were prominent in town government. they usually had close family ties with the gentry, especially as sons. when wealthy enough, they often bought a country estate. the professional men included military officers, civil service officials, attorneys, some physicians, and a few clergymen. the instabilities of trade, high mortality rates in the towns, and high turnover rate among the leading urban families prevented any separate urban interest group arising that would be opposed to the landed gentry. also included in this second group were the most prosperous yeomanry of the countryside. the third class was the yeomanry at large, which included many more than the initial group who possessed land in freehold of at least 40s., partly due to inflation. freehold was the superior form of holding land because one was free to sell, exchange, or devise the land and had a political right to vote in parliamentary elections. other yeomen were those who possessed enough land, as copyholder or leaseholder, to be protected from fluctuations in the amount of the annual harvest, that is, at least 50 acres. a copyholder rented land from a lord for a period of years or lives, usually three lives including that of the widow, and paid a substantial amount whenever the copyhold came up for renewal. the copyholder and leaseholder were distinguished from the mere tenant-at-will, whose only right was to gather his growing crop when his landlord decided to terminate his tenancy. the average yeoman had a one and a half story house, with a milkhouse, a malthouse, and other small buildings attached to the dwelling. the house would contain a main living room, a parlor, where there would be one or more beds, and several other rooms with beds. no longer was there a central great hall. cooking was done in a kitchen or over the open fire in the fireplace of the main room. furniture included large oak tables, stools, long bencches with or without backs, chests, cupboards, and a few hard-backed simple chairs. dishware was wood or pewter. the yeomen often became sureties for recognizances, witnesses to wills, parish managers, churchwardens, vestrymen, the chief civil officers of parishes and towns, overseers of the poor, surveyors of bridges and highways, jurymen and constables for the justices of the peace, and sheriffs' bailiffs. the families and servants of these yeomen ate meat, fish, wheaten bread, beer, cheese, milk, butter, and fruit. their wives were responsible for the dairy, poultry, orchard, garden, and perhaps pigs. they smoked and cured hams and bacon, salted fish, dried herbs for the kitchen or lavender and pot-pourri for sweetening the linen, and arranged apples and roots in lofts or long garrets under the roof to last the winter. they preserved fruits candied or in syrup. they preserved wines; made perfumes, washes for preserving the hair and complexion, rosemary to cleanse the hair, and elder-flower water for sunburn; distilled beverages; ordered wool hemp, and flax to spin for cloth (the weaving was usually done in the village); fashioned and sewed clothes and house linens; embroidered; dyed; malted oats; brewed; baked; and extracted oils. many prepared herb medicines and treated injuries, such as dressing wounds, binding arteries, and setting broken bones. wives also ploughed and sowed, weeded the crops, and sheared sheep. they sometimes cared for the poor and sold produce at the market. some yeomen were also tanners, painters, carpenters, or blacksmiths; and as such they were frequently brought before the justices of the peace for exercising a craft without having served an apprenticeship. the third class also included the freemen of the towns, who could engage independently in trade and had political rights. these freemen were about one-third of the male population of the town. the fourth class included the ordinary farmer leasing by copyhold, for usually 21 years, five to fifty acres. from this class were drawn sidesmen [assistants to churchwardens] and constables. they had neither voice nor authority in government. their daily diet was bacon, beer, bread, and cheese. also in this class were the independent urban craftsmen who were not town freemen. their only voice in government was at the parish level. the fifth and lowest class included the laborers and cottagers, who were usually tenants at will. they were dependent on day labor. they started work at dawn, had breakfast for half an hour at six, worked until dinner, and then until supper at about six; in the summer they would then do chores around the barns until eight or nine. some were hedgers, ditchers, ploughmen, reapers, shepherds, and herdsmen. the cottagers' typical earnings of about 1s. a day amounted to about 200 shillings a year, which was almost subsistence level. accordingly they also farmed a little on their four acres of land with garden. some also had a few animals. they lived in one or two room cottages of clay and branches of trees or wood, sometimes with a brick fireplace and chimney, and few windows. they ate bread, cheese, lard, soup, and greens. if a laborer was unmarried, he lived with the farmer. theirs was a constant battle for survival. they often moved, because of deprivation, to seek opportunity elsewhere. the town wage-earning laborers ranged from journeymen craftsmen to poor casual laborers. the mass of workers in london were not members of guilds, and the crime rate was high. the last three classes also contained rural craftsmen and tradesmen, who also farmed. the variety of trades became very large, e.g. tinsmiths, chain smiths, pewterers, violin makers, and glass painters. the curriers, who prepared hides for shoemakers, coachmakers, saddlers, and bookbinders, were incorporated. the fourth and fifth classes comprised about three fourths of the population. then there were the maritime groups: traders, ship owners, master and seamen, and the fishers. over one fourth of all households had servants. they were the social equals of day laborers, but materially better off with food and clothing plus an allowance of money of two pounds [40s.] a year. those who sewed got additional pay for this work. there was no great chasm between the family and the servants. they did not segregate into a parlor class and a kitchen class. the top servants were as educated as their masters and ate at the same table. great households had a chaplain and a steward to oversee the other servants. there was usually a cook. lower servants ate together. servants were disciplined by cuffs and slaps and by the rod by master or mistress. maids wore short gowns, a large apron, and a gypsy hat tied down over a cap. chamber maids helped to dress their mistresses. servants might sleep on trundle beds stored under their master's or mistress's bed, in a separate room, or on the straw loft over the stables. a footman wore a blue tunic or skirted coat with corded loop fasteners, knee-britches, and white stockings. he walked or ran on foot by the side of his master or mistress when they rode out on horseback or in a carriage and ran errands for him, such as leading a lame horse home or running messages. a good footman is described in this reference letter: "sir, you wrote me lately for a footman, and i think this bearer will fit you: i know he can run well, for he has run away twice from me, but he knew the way back again: yet, though he has a running head as well as running heels (and who will expect a footman to be a stayed man) i would not part with him were i not to go post to the north. there be some things in him that answer for his waggeries: he will come when you call him, go when you bid him, and shut the door after him; he is faithful and stout, and a lover of his master. he is a great enemy to all dogs, if they bark at him in his running; for i have seen him confront a huge mastiff, and knock him down. when you go a country journey, or have him run with you a-hunting, you must spirit him with liquor; you must allow him also something extraordinary for socks, else you must not have him wait at your table; when his grease melts in running hard, it is subject to fall into his toes. i send him to you but for trial, if he be not for your turn, turn him over to me again when i come back..." dress was not as elaborate as in elizabethan times. for instance, fewer jewels were worn. ladies typically wore a brooch, earrings, and pearl necklaces. men also wore earrings. watches with elaborate cases were common. women's dresses were of satin, taffeta, and velvet, and were made by dressmakers. pockets were carried in the hand, fastened to the waist by a ribbon, or sewn in petticoats and accessible by a placket opening. the corset was greatly reduced. women's hair was in little natural-looking curls, a few small tendrils on the forehead with soft ringlets behind the ears, and the back coiled into a simple knot. men also wore their hair in ringlets. they had pockets in their trousers, first as a cloth pouch inserted into an opening in the side seam, and later sewn into the side seam. the bereaved wore black, and widows wore a black veil over their head until they remarried or died. rouge was worn by lower class women. toothbrushes, made with horsehair, were a new and costly luxury. the law dictating what classes could wear what clothes was difficult to enforce and the last such law was in 1597. merchants who had become rich by pirating could now afford to extend their trading ventures well beyond the atlantic sea. cotton chintzes, calicoes, taffetas, muslins, and ginghams from india now became fashionable as dress fabrics. simple cotton replaced linen as the norm for napkins, tablecloths, bed sheets, and underwear. then it became the fashion to use calicoes for curtains, cushions, chairs, and beds. its inexpensiveness made these items affordable for many. there was a cotton-weaving industry in england from about 1621, established by cotton workmen who fled to england in 1585 from antwerp, which had been captured. by 1616, there were automatic weaving looms in london which could be operated by a novice. even large houses now tended to do without a courtyard and became compacted into one soaring and stately whole. a typical country house had deep-set windows of glass looking into a walled green court with a sundial in it and fringed around with small trees. the gables roofs were steep and full of crooks and angles, and covered with rough slate if there was a source for such nearby. there was an extensive use of red tile, either rectangular or other shapes and with design such as fishscales. the rooms are broad and spacious and include hall, great parlor, little parlor, matted chamber, and study. in the hall was still the great, heavy table. dining tables were covered with cloth, carpet, or printed leather. meals were increasingly eaten in a parlor. noble men now preferred to be waited upon by pages and grooms instead of by their social equals as before. after dinner, they deserted the parlor to retire into drawing rooms for conversation and desserts of sweet wine and spiced delicacies supplemented by fruit. afterward, there might be dancing and then supper. in smaller parlors, there was increasing use of oval oak tables with folding leaves. chests of drawers richly carved or inlaid and with brass handles were coming into increased use. walls were lined with panels and had pictures or were hung with tapestry. carpets, rugs, and curtains kept people warm. there were many stools to sit on, and some arm chairs. wide and handsome open staircases separated the floors. upstairs, the sitting and bedrooms open into each other with broad, heavy doors. bedrooms had four-post beds and wardrobes with shelves and pegs. under the roof are garrets, apple-lofts, and root-chambers. underneath is a cellar. outside is a farmyard with outbuildings such as bake house, dairy, cheese-press house, brewery, stilling house, malt house, fowl house, dove cot, pig stye, slaughter-house, wood house, barns, stable, and sometimes a mill. there were stew-ponds for fish and a park with a decoy for wild fowl. there was also a laundry, carpenter's bench, blacksmith's forge, and pots and equipment of a house painter. in the 1600s, towns were fortified by walled ditches instead of relying on castles, which couldn't contain enough men to protect the townspeople. also in towns, water was supplied by local pumps and wells. in 1613, a thirty-eight-mile aqueduct brought spring water into london. in the country, floors were of polished wood or stone and strewn with rushes. a ladies' attendant might sleep the same bedroom on a bed which slid under the ladies' bed. apprentices and shop boys had to sleep under the counter. country laborers slept in a loft on straw. bread was made in each household. there were bedroom chairs with enclosed chamber pots. wood fires were the usual type. coal was coming into use in the towns and near coal mines. charcoal was also used. food was roasted on a spit over a fire, baked, or broiled. people still licked their fingers at meals. the well-to-do had wax candles. tallow dips were used by the poor and for the kitchen. people drank cordials and homemade wines made with grapes, currants, oranges, or ginger. some mead was also drunk. tobacco, potatoes, tea, asparagus, kidney beans, scarlet runners, cardoons (similar to artichokes), horseradish, sugarcane, and turkeys for christmas, were introduced from the new world, china, and india. tea was a rare and expensive luxury. coffee was a new drink. with the cane sugar was made sweetened puddings, pies, and drinks. the potato caused the advent of distillation of concentrated alcohol from fermented potato mashes. there was a distiller's company by 1638. distilleries' drinks had higher alcoholic content than wine or beer. the merchant adventurers sold in town stores silks, satins, diamonds, pearls, silver, and gold. there were women peddlers selling hats and hosiery from door to door and women shopkeepers, booksellers, alehouse keepers, linen drapers, brewers, and alewives. london had polluted air and water, industrial noise, and traffic congestion. work on farms was still year-round. in january and february, fields were ploughed and harrowed and the manure spread. also, trees and hedges were set, fruit trees pruned, and timber lopped. in march and april, the fields were stirred again and the wheat and rye sown. in may gardens were planted, hop vines trained to poles, ditches scoured, lambs weaned, and sheep watched for "rot". in june sheep were washed and sheared, and fields were spread with lime and clay, and manured. in july hay was cut, dried, and stacked. in august crops were harvested, which called for extra help from neighbors and townsmen who took holidays at harvesting. then there was threshing, and the sowing of winter wheat and rye. in the autumn, cider from apples and perry from pears might be made. by november the fall planting was finished and the time had come for the killing of cattle and hanging up their salted carcasses for winter meat. straw would be laid down with dung, to be spread next spring on the fields. stock that could not live outdoors in winter were brought into barns. government regulated the economy. in times of dearth, it ordered justices of the peace to buy grain and sell it below cost. it forbade employers to lay off workers whose products they could not sell. it used the star chamber court to enforce economic regulations. enclosures of land were made to carry on improved methods of tillage, which yielded more grain and more sheep fleece. drainage of extensive marsh land created more land for agriculture. waste land was used to breed game and "fowling" contributed to farmers' and laborers' livelihoods. killing game was not the exclusive right of landowners, but was a common privilege. the agricultural laborer, who worked for wages and composed most of the wageearning population, found it hard to make ends meet. there were food riots usually during years of harvest failure, in which organized groups seized foodstuffs being transported or in markets. also, there were enclosure riots, in which organized groups destroyed hedges and fences erected in agrarian reorganization to restrict access to or to subdivide former common pasture land. these selfhelp riots were last resorts to appeals. they were relatively orderly and did not expand into random violence. the rioters were seldom punished more than a fining or whipping of the leaders and action was taken to satisfy their legitimate grievances. the poor came to resent the rich and there was a rise in crime among the poor. penal laws were frequently updated in an effort to bring more order. in 1610, weekly wages for a mason were 8s. or 5s., for a laborer were 6s. or 4s., for a carpenter 8s. or 6s. an unskilled laborer received 1s. a day. there were conventions of paternalism and deference between neighbors of unequal social status. a social superior often protected his lessers from impoverishment for instance, the landlord lessened rents in times of harvest failure. a social superior would help find employment for a lesser person or his children, stand surety for a recognizance, intervene in a court case, or have his wife tend a sick member of his lesser's family. a social obligation was felt by most of the rich, the landlords, the yeomen farmers, and the clergy. this system of paternalism and social deference was expressed and reinforced at commonly attended village sports and games, dances, wakes and "ales" (the proceeds of which went to the relief of a certain person in distress), "rush-bearings", parish feasts, weddings, christenings, "churchings" to give thanks for births, and funerals. even the poor were buried in coffins. also there was social interaction at the local alehouse, where neighbors drank, talked, sang, and played at bowls or "shove goat" together. quarrelling was commonplace. for instance, borough authorities would squabble over the choice of a schoolmaster; the parson would carry on a long fight with parishioners over tithe hens and pigs; two country gentlemen would continue a vendetta started by their great-grandfathers over a ditch or hunting rights; the parishioners would wrangle with the churchwardens over the allocation of pews. the position of one's pew reflected social position. men tried to keep the pews of their ancestors and the newly prosperous wanted the recognition in the better pews, for which they had to pay a higher amount. but, on the other hand, farmers were full of good will toward their neighbors. they lent farm and kitchen equipment, helped raise timbers for a neighbor's new barn, sent food and cooked dishes to those providing a funeral feast and to the sick and incurable. village standards of behavior required that a person not to drink to excess, quarrel, argue, profane, gossip, cause a nuisance, abuse wife or children, or harbor suspicious strangers, and to pay scot and bear lot as he was asked. neighbors generally got along well and frequently borrowed and loaned small sums of money to each other without interest for needs that suddenly arose. bad behavior was addressed by the church by mediation and, if this failed, by exclusion from holy communion. there was also whipping and the stocks. marital sex was thought to be good for the health and happiness of the husband and enjoyable by wives. the possibility of female orgasm was encouraged. both women and men were thought to have "seed" and drank certain potions to cause pregnancy or to prevent birth. some argued that orgasm of both partners was necessary for the "seed" of the male and female to mix to produce pregnancy. most women were in a virtual state of perpetual pregnancy. both catholics and protestants thought that god wanted them to multiply and cover the earth. catholics thought that the only goal of sex was procreation. men were considered ready for marriage only when they could support a family, which was usually at about age 30. brides were normally virgins, but there was bridal pregnancy of about 20%. women usually married at about age 25. marriages were usually within one's own class and religion. the aristocracy often initiated matches of their children for the sake of continuity in the family estates and tried to obtain the consent of their children for the match in mind. the age of consent to marry was 14 for boys and 12 for girls. girls in arranged marriages often married at 13, and boys before they went to university. but the girls usually stayed with their parents for a couple of years before living with their husbands. if married before puberty, consummation of the marriage waited for such time. in other classes, the initiative was usually taken by the child. dowries and marriage portions usually were given by the parents of the bride. wet-nurses frequently were used, even by puritans. there were no baby bottles. many babies died, causing their parents much grief. about 1/4 of women's deaths occurred during childbirth. a child was deemed to be the husband's if he was within the four seas, i.e. not in foreign lands, for an agreed length of time. illegitimacy was infrequent, and punished by church-mandated public penance by the mother and lesser penance and maintenance by the father. the church court punished adultery and defamation for improper sexual conduct. the established church still taught that the husband was to be the authority in marriage and had the duty to provide for, protect, and maintain his wife. wives were to obey their husbands, but could also admonish and advise their husbands without reproach. in literature, women were portrayed as inferior to men intellectually and morally as well as physically. in reality wives did not fit the image of women portrayed by the church and literature. quarrels between husband and wife were not uncommon and were not stopped by a husband's assertion of authority. wives were very active in the harvesting and did casual labor of washing, weeding, and stone-picking. farmers' and tradesmen's wives kept accounts, looked after the garden, orchard, pigs, and poultry; brewed beer; spun wool and flax; and acted as agents in business affairs. wives of craftsmen and tradesmen participated actively in their husbands' shops. wives of weavers spun for their husband's employers. wives of the gentry ran their households with their husbands. the lady of a large mansion superintended the household, ordering and looking after the servants, and seeing to the education of her children. mothers handed down their recipes to their daughters. women still did much needlework and embroidering for clothing and house, such as cushions, screens, bed curtains, window curtains, hangings, footstools, book covers, and small chests of drawers for valuables. liking simplicity, puritan women did less of this work. naming one's wife as executor of one's will was the norm. jointures [property for a widow] were negotiated at the betrothal of ladies. widows of manorial tenants were guaranteed by law one-third of family real property, despite creditors. but most testators went beyond this and gave a life interest in the farm or family house. so it was customary for a widow to remain in occupation of the land until her death or remarriage. few widows or widowers lived with one of their children. widows usually had their husband's guild rights and privileges conferred upon them, e.g. to receive apprentices. in london, custom gave 1/3 of a deceased husband's estate to his wife on his death, but 2/3 if there were no children. the other part went according to his will. if a widow did not remarry in memory of her husband, she was esteemed. but remarriage was common because the life expectancy after birth was about 35 years. sons of the well-to-do went into law, the church, the army, or the navy. if not fit for such, they usually went into a trade, apprenticing, for instance, with a draper, silk merchant, or goldsmith. sometimes a son was sent to the house of a great man as a page or esquire to learn the ways of courtiers and perhaps become a diplomat. the guild with its master and their employees was being replaced by a company of masters. james i ruled over both england and scotland. he had come from scotland, so was unfamiliar with english love of their rights, passion for liberty and justice, and extensive discussing of religion and quoting scripture. when he came to the throne, he had a conference with a group of puritans who asked for certain reforms: ceremonies such as the cross in baptism and the ring in marriage should not be used, only educated men competent to preach should be made ministers, bishops should not be allowed to hold benefices that they did not administer, and minor officials should not excommunicate for trifles and twelve-penny matters. he not only denied their requests, but had the english bible revised into the king james version, which was published in 1611. this was to replace the popular geneva bible written by english protestant refugees from catholic queen mary's reign, which he did not like because some of its commentary was not highly favorable to kings. james didn't believe a king had to live by the law; he hadn't as king of scotland. he tried to imbue into england the idea of a divine right of kings to rule that he had held in scotland. the established church quickly endorsed and preached this idea. the selection of the clergy of the parish churches was now often in the hands of the parishioners, having been sold to them by the patron lord of the manor. some patrons sold the right of selection to a tradesman or yeoman who wished to select his son or a relative. some rights of selection were in the hands of bishops, the colleges, and the crown. the parish clergyman was appointed for life and removed only for grave cause. most parishioners wanted a sermon created by their minister instead of repetitious homilies and constant prayer. they thought that the object of worship in church was to rouse men to think and act about the problems of the world. in 1622, the king mandated that clergymen quote scripture only in context of the book of articles of religion of 1562 or the two books of homilies and not preach any sermon on sunday afternoon except on some part of the catechism or some text out of the creed, ten commandments, or the lord's prayer. the puritan movement grew. about 5% of the protestants were puritans. these included country gentlemen and wealthier traders. they dressed simply in gray or other drab colors and wore their hair short to protest the fashion of long curls. they lived simply and disapproved of dancing because it induced lasciviousness and of theater because of its lewdness. theaters and brothels still shared the same neighborhoods, the same customers, and sometimes the same employees. prostitutes went to plays to find customers; men shouldered and shoved each other in competing to sit next to attractive women to get to know them. the puritans also disapproved of cock fights because they led to gambling and disorder, and maypole celebrations because of their paganism. there was less humor. many became stoics. the puritan church ceremonies were plain, with no ornamentation. puritans prayed several times a day and read the bible to each other in family groups to look for guidance in their conduct and life. they asked for god to intervene in personal matters and looked for signs of his pleasure or displeasure in happenings such as a tree falling close but not touching him, or his horse throwing him without injury to him. when there was an illness in the family or misfortune, they examined their past life for sins and tried to correct shortcomings. they circulated records of puritan lives including spiritual diaries. they believed in the equality of men and that a good man was better than a bad peer, bishop, or king. puritan influence made families closer and not merely dependent on the will of the husband or father. there was a sense of spiritual fellowship among family members as individuals. they emphasized the real need of a lasting love relationship between husband and wife, so a mutual liking that could develop into love between a young couple in an arranged match was essential. most puritans felt that the bishops were as tyrannical as the pope had been and that more reform was needed. they favored the presbyterian form of church government developed by john calvin in switzerland. the presbyter was the position below bishop. parishes were governed by boards consisting of a minister and lay elders elected by the parishioners. these boards sent elected representatives to councils. all lay elders and ministers had equal rank with each other. the calvinist god preordained salvation only for the elect and damnation and everlasting punishment for the rest of humanity, but the puritans had an optimism about avoiding this damnation. they believed that at his conversion a person received grace, which was a sign that he was predestined for salvation. they rejected all ecclesiastical institutions except as established by each parish over its own elected pastor and members. they rejected the established church's control from the top by bishops. they believed in negotiating directly with god for the welfare of the soul without the priest or church organization. the fear of witchcraft grew with puritanism. poor decrepit old defenseless women, often deformed and feeble-minded, were thought to be witches. their warts and tumors were thought to be teats for the devil to suck or the devil's mark. cursing or ill-tempers, probably from old age pains, or having cats were further indications of witchery. when the king learned in 1618 that the english puritans had prevented certain recreations after the sunday service, he proclaimed that the people should not be restrained from lawful recreations and exercise such as dancing, may-games, whitsunales, morris-dances, may-pole sports, archery for men, leaping, and vaulting. also women could carry rushes to decorate the church as they had done in the past. his stated purpose was to prevent people such as catholics from being deterred from conversion, to promote physical fitness for war, and to keep people from drinking and making discontented speeches in their ale houses. still unlawful on sunday were bear and bull baitings and bowlings. besides the puritans, there were other independent sects, such as the congregationalists, whose churches gathered together by the inspiration of jesus. this sect was started by english merchants residing in holland who set up congregations of englishmen under their patronage there; they kept minister and elders well under their control. the baptists emerged out of the independents. they believed that only adults, who were capable of full belief, and not children, could be baptized. they also believed that it was the right of any man to seek god's truth for himself in the scriptures and that obedience to the state should not extend beyond personal conscience. one fourth of all children born did not live to the age of ten, most dying in their first year. babies had close caps over their head, a rattle, and slept in a sturdy wood cradle that rocked on the floor, usually near the hearth. babies of wealthier families had nurses. the babies of ladies were suckled by wet nurses. parents raised children with affection and tried to prepare them to become independent self-sustaining adults. there was less severity than in tudor times, although the maxim "spare the rod and spoil the child" was generally believed, especially by puritans, and applied to even very young children. in disciplining a child, an admonition was first used, and the rod as a last resort, with an explanation of the reasons for its use. there were nursery rhymes and stories such as "little bo-peep", "jack and the beanstalk", "tom thumb", "chicken little", and robin hood and king arthur tales, and probably also "puss in boots", "red ridinghood", "cinderella", "beauty and the beast", "bluebeard" and aesop's fables. "little jack horner" who sat in a corner was a satire on the puritan aversion to christmas pudding and sense of conscious virtue. toys included dolls, balls, drums, and hobby horses. children played "hide and seek", "here we go around the mulberry bush", and other group games. school children were taught by "horn books". this was a piece of paper with the alphabet and perhaps a religious verse, such as the paternoster prayer, that was mounted on wood and covered with thin horn to prevent tearing. little girls cross-stitched the alphabet and numerals on samplers. block alphabets were coming into use. most market towns had a grammar school which would qualify a student for university. they were attended by sons of noblemen, country squires [poor gentlemen], merchants, and substantial yeomen, and in some free schools, the poor. school hours were from 6:00 a.m. to noon or later. multiplication was taught. if affordable, families had their children involved in education after they were small until they left home at about fifteen for apprenticeship or service. otherwise, children worked with their families from the age of seven, e.g. carding and spinning wool, until leaving home at about fifteen. there were boarding schools such as winchester, eton, westminster, st. paul's, and merchant taylors'. there, senior boys selected for conduct and ability supervised younger boys. they thereby got experience for a future in public life. the system was also a check on bullying of the weak by the strong. the curriculum included lilly's "grammar"; aesop; terence's roman comic plays; virgil's "aeneid", the national epic of rome; cicero's "letters" reflecting roman life; sallust's histories showing people and their motives; caesar's "commentaries" on the gallic and civil wars; horace's "epistles" about life and poetry; poet ovid's "metamorphoses" on adventures and love affairs of deities and heroes, "fasti" on roman religious festivals and customs; donatus' grammar book; and other ancient latin authors. football, with hog bladders, and tennis were played. these schools were self-supporting and did their own farming. private schools for girls were founded in and around london. they were attended by daughters of the well-to-do merchant class, nobility, and gentry. they were taught singing, playing of instruments, dancing, french, fine sewing, embroidery, and sometimes arithmetic. there were not many girls' boarding schools. fewer served in the house of some noble lady as before. most commonly, the sons and daughters of gentlemen and nobles were taught by private tutors. a tutor in the house educated the girls to the same extent as the boys. frequently, the mother educated her daughters. a considerable number of girls of other backgrounds such as the yeomanry and the town citizenry somehow learned to read and write. boys began at university usually from age 14 to 18, but sometimes as young as 12. the universities provided a broad-based education in the classics, logic and rhetoric, history, theology, and modern languages for gentlemen and gave a homogenous national culture to the ruling class. there was a humanist ideal of a gentleman scholar. the method of study was based largely on lectures and disputations. each fellow had about five students to tutor. in many cases, he took charge of the finances of his students, paying his bills to tradesmen and the college. his reimbursement by the students' fathers put them into friendly contact with the family. the students slept in trundle beds around his bed and had an adjacent room for study. aristotle, whose authority was paramount, remained the lynch pin of university studies, especially for logic and dialectic. the study of rhetoric was based on quintilian, the latin writer, and the greek treatise of hermogenes of tarsus. also studied was cicero's orations as models of style. examination for degrees was by disputation over a thesis of the student. the b.a. degree was given after four years of study, and the m.a. after three more. there were advanced degrees in civil law, which required seven more years of study, medicine, seven years, divinity, more than seven years, and music. many of the men who continued for advanced degrees became fellows and took part in the teaching. most fellowships were restricted to clerics. oxford and cambridge universities operated under a tutorial system. access to grammar schools and universities was closed to girls of whatever class. oxford university now had the bodleian library. in the universities, there were three types of students: poor scholars, who received scholarships and also performed various kinds of service such as kitchen work and did errands for fellows such as carrying water and waiting on tables; commoners, who paid low fees and were often the sons of economical gentlemen or businessmen; and the fellow commoners, a privileged and well-to-do minority, usually sons of noblemen or great country gentlemen. the fellow commoners paid high fees, had large rooms, sometimes had a personal tutor or servant, and had the right to eat with the fellows at high table. here, gentlemen made friends with their social equals from all over the country. students wore newfashioned gowns of many colors and colored stockings. they put on stage plays in latin and english. the students played at running, jumping, and pitching the bar, and at the forbidden swimming and football. they were not to have irreligious books or dogs. cards and dice could be played only at christmas time. students still drank, swore, and rioted, but they were disallowed from going into town without special permission. those below a b.a. had to be accompanied by a tutor or an m.a. they were forbidden from taverns, boxing matches, dances, cock fights, and loitering in the street or market. sometimes a disputation between two colleges turned into a street brawl. punishment was by flogging. each university had a chancellor, usually a great nobleman or statesman, who represented the university in dealings with the government and initiated policies. the vice-chancellor was appointed for a year from the group of heads of college. he looked out for the government of halls, enforced the rules of the university, kept its courts, licensed wine shops, and shared control of the town with the mayor. tutors were common. they resided at the boy's house or took boys to board with them at their houses in england or on the continent. the tutor sometimes accompanied his student to grammar school or university. puritans frequently sent their sons to board in the house of some frenchman or swiss protestant to learn the calvinist doctrines or on tour with a tutor. certain halls in the universities were predominately puritan. catholics were required to have their children taught in a home of a protestant, a relative if possible. the inns of court were known as "the third university". it served the profession of law, and was a training ground for the sons of nobility and the gentry and for those entering the service of the commonwealth. the inns were self-governing and ruled by custom. students were to live within the inn, two to a room, but often there were not enough rooms, so some students lived outside the quadrangles. every student was supposed to partake of commons or meals for a certain fraction of the year from eight weeks to three months and there to argue issues in cases brought up by their seniors. in hall the students were not allowed to wear hats, though caps were permitted, nor were they to appear booted or spurred or carrying swords. for the first two years, they would read and talk much of the law, and were called clerks commoners. after two years they became mootmen or inner barristers. in five or six years they might be selected to be called to the bar as utter barristers, whose number was fixed. there was no formal examination. the utter barrister spent at least three more years performing exercises and assisting in directing the studies of the younger men. after this time, he could plead in the general courts at westminster, but usually carried on law work in the offices of other men and prepared cases for them. participating in moots (practice courts) was an important part of their education. lectures on statutes and their histories were given by readers. physicians were licensed by universities, by the local bishop, or in london, by the college of physicians and surgeons. most were university graduates, and because of the expense of the education, from well-to-do families. for the b.a., they emphasized greek. for the m.a., they studied the works of greek physicians galen and hippocrates, roman physician claudius, and perhaps some medieval authorities. after the m.a., they listened to lectures by the regius professor of medicine and saw a few dissections. three years of study gave them a m.b., and four more years beyond this the m.d. degree. a physician's examination of a patient cost 10s. the physician asked about his symptoms and feelings of pain, looked at his eyes, looked at his body for spots indicative of certain diseases, guessed whether he had a fever, felt his pulse, and examined his urine and stool. there were no laboratory tests. smallpox was quickly recognized. wrapping red cloth around the person and covering the windows with red cloth being promoted healing without scarring. gout was frequent. syphilis was common in london and other large centers, especially in court circles. it was ameliorated by mercury. an imbalance of the four humors: blood, phlegm, choler, bile was redressed by bloodletting, searing, draining, and/or purging. heart trouble was not easily diagnosed and cancer was not recognized as a life-threatening disease. childbirth was attended by physicians if the patient was well-to-do or the case was serious. otherwise women were attended only by midwives. they often died in childbirth, many in their twenties. a visit by a physician cost 13s.4d. melancholia, which made one always fearful and full of dread, and mania, which made one think he could do supernatural things, were considered to be types of madness different from infirmities of the body. despite a belief held by some that anatomical investigation of the human body was a sin against the holy ghost, physicians were allowed to dissect corpses. so there were anatomy textbooks and anatomy was related to surgery. barber-surgeons extracted teeth and performed surgery. the white and red striped barber pole initially indicated a place of surgery; the red represented blood and the white bandages. the theory of nutrition was still based on the four humors and deficiency diseases were not understood as such. physician william harvey, son of a yeoman, discovered the circulation of the blood from heart to lungs to heart to body about 1617. he had studied anatomy at padua on the continent and received an m.d. there and later at cambridge. then he accepted a position at the hospital of st. bartholomew to treat the poor who came there at least once a week for a year. he agreed to give the poor full benefit of his knowledge, to prescribe only such medicines as should do the poor good without regard to the pecuniary interest of the apothecary accompanying him, to take no reward from patients, and to render account for any negligence on his part. he also dissected animals. one day he noted when stroking downward on the back of one hand with the finger of the other, that a vein seemed to disappear, but that it reappeared when he released his finger. he surmised that there was a valve preventing the blood's immediate return to the vein. then he ascertained that the heart was a pump that caused pulses, which had been thought to be caused by throbbing of the veins. he tied the arteries and found that the arterial blood flowed away from the heart. he tied the veins and found that venal blood flowed into the heart. he found that the blood flowed from the lungs to the left side of the heart, and from thence was pumped out to the body. blood also flowed from the body to the right side of the heart, from which it was pumped to the lungs. the two contractions closely followed one another, rather than occurring at the same time. the valves in the veins prevented backflow. it was now clear why all the blood could be drained away by a single opening in a vein. it was also clear why a tight ligature, which blocked the arteries, made a limb bloodless and pale and why a looser ligature, which pressed only on the veins, made a limb swell turgid with blood. multiplying an estimate of the amount of blood per beat with the number of beats, he concluded that the amount of blood did not change as it circulated. he concluded that the only purpose of the heart was to circulate the blood. this diminished the religious concept that the heart was the seat of the soul and that blood had a spiritual significance and was sacred. the physicians turned surgery over to the surgeons, who received a charter in 1605 by which barbers were excluded from all surgical work except bloodletting and the drawing of teeth. surgeons dealt with skin disease, ulcers, hernia, bladder stones, and broken bones, which they had some skill in setting. they performed amputations, which were without antiseptics or anesthesia. internal operations usually resulted in death. caesarian section was attempted, but did not save the life of the mother. apprenticeship was the route to becoming a surgeon. a college of surgeons was founded. students learned anatomy, for which they received the corpses of four executed felons a year. the apothecaries and grocers received a charter in 1607, but in 1618, the apothecaries were given the sole right to purchase and sell potions, and to search the shops of grocers and stop the sale by them of any potions. in london, the apothecaries were looked over by the college of physicians to see that they were not selling evil potions or poisons. in 1618 was the first pharmacy book. there were three hospitals in london, two for the poor, and bedlam [bethlehem] hospital for the insane. others were treated at home or in the physician's home. theaters were shut down in times of plague to prevent spread of disease there. towndwellers who could afford it left to live in the country. shakespeare wrote most of his plays in this period. most popular reading was still bibles, prayer books, psalm books, and devotional works. also popular were almanacs, which started with a single sheet of paper. an almanac usually had a calendar; information on fairs, roads, and posts; farming hints; popularized scientific knowledge; historical information; sensational news; astrological predictions; and later, social, political, and religious comment. many households had an almanac. books tried to reconcile religion and science as well as religion and passion or sensuality. walter ralegh's "history of the world", written while he was in prison, was popular. ben johnson wrote poetry and satiric comedies. gentlemen read books of manners such as james cleland's "institution of a young noble man" (1607). in 1622, the first regular weekly newspaper was started. although there was a large advance in the quality of boys' education and in literacy, the great majority of the people were unable to read fluently. since writing was taught after one could read fluently, literacy was indicated by the ability to sign one's name. almost all gentlemen and professional men were literate. about half the yeomen and tradesmen and craftsmen were. only about 15% of husbandmen, laborers, servants, and women were literate. the elizabethan love of madrigal playing gradually gave way to a taste for instrumental music, including organs and flutes. the violin was introduced and popular with all classes. ballads were sung, such as "barbary allen", about a young man who died for love of her, after which she died of sorrow. when they were buried next to each other, a rose from his grave grew around a briar from her grave. the ballad "geordie" relates a story of a man hanged for stealing and selling sixteen of the king's royal deer. the ballad "matty groves" is about a great lord's fair young bride seducing a lad, who was then killed by the lord. in the ballad "henry martin", the youngest man of three brothers is chosen by lot to turn pirate to support his brothers. when his pirate ship tries to take a merchant ship, there is sea fight in which the merchant ship sinks and her men drown. the ballad "the trees they do grow high" tells of an arranged marriage between a 24 year old woman and the 14 year old son of a great lord. she tied blue ribbons on his head when he went to college to let the maidens know that he was married. but he died at age 16, after having sired a son. may day was a holiday with dancing around a maypole and people dressed up as characters such as queen of the may, robin hood, little john, friar tuck, maid marion, the fool, and the piper. new year's day was changed to january 1st. golf was played in scotland, and james introduced it into england. james i was the last monarch to engage in falconry. francis bacon wrote the "advancement of learning" and "novum organum" (new learning) in which he encouraged the use of the inductive method to find out scientific truths and also truths in general, that is reasoning from a sample to the whole. according to him, the only way to arrive at the truth was to observe and determine the correlations of facts. he advocated a process of elimination of hypothesized ideas. first, experiments were made, then general conclusions were drawn from them, and then these generalizations were tested in further experiments. his "new learning" showed the way out of the scholastic method and reverence for dogma into the experimental method. he wrote "natural and experimental history". he studied the effect of cold in preventing animal putrefaction. by this time, what was known about mathematics included fractional exponents, trigonometry in terms of arcs of angles, long division, square root symbol, decimal fractions, methods for solving cubic equations, trigonometry in terms of ratios of sides of a right triangle, equal sign, plus and minus signs, and a consistent theory of imaginary numbers. john napier, a large calvinist landholder in scotland who had built his own castle, did mathematics in his older years. he explored imaginary numbers, which involve square roots of negative numbers. by 1614, he had started and developed the theory of logarithms: the relationships among positive and negative exponents of numbers. this simplified calculations because the multiplication and division of numbers with a common base could be done by addition and subtraction of their exponents. his table of logarithms, which took him twenty years to compile, was used in trigonometry, navigation, and astronomy. it reduced the enormous labor involved in trigonometric calculations. in 1622, willliam oughtred invented the slide rule for calculations. galileo galilei was a professor of mathematics at the university of padua in italy and was later a protege of the powerful medici family. he pioneered the scientific method of theory building by observation of phenomena instead of resort to sources such as aristotle. he conducted experiments, e.g. throwing objects off the tower of pisa in 1590 to show that all, whether light or heavy, fall at the same rate. this disproved the widely held belief that heavier objects fall faster than light objects. he reasoned by induction from experiments that the force of gravity has the same effect on all objects regardless of their size or weight. his law stated that the speed of their descent increases uniformly with the time of the fall, i.e. speed [velocity] = gravity's acceleration multiplied by time. this was a pioneering mathematization of a physical phenomenon. from his observation that an object sliding along a plane travels increasingly farther and slows down at a decreasing rate as the surfaces become smoother and more lubricated, he opined that the natural state of a body in motion is to stay in motion, and that it is slowed down by a resistant force, which he called "friction". he conceived of the air giving a frictional force to an object moving through the air. from his experiments showing that a rolling ball rolls up a plane farther the lesser the slope of the plane, he intuited that if the plane were horizontal, the ball would never stop rolling except for friction. he opined that bodies that are at rest stay at rest and bodies that are in motion stay in uniform motion ("inertia"), unless and until acted upon by some force. this was a radical departure from aristotle's theory that any horizontal motion requires a prime mover. galileo drew a graph of distance versus time for the rolling ball, which indicated that the distance traveled was proportional to the square of the time elapsed. he put his ideas of vertical and horizontal motion together to explain the movement of projectiles, which travel horizontally, but also fall downward vertically. he realized that the movement of a projectile involved a horizontal impetus of projection and a vertical force of gravity, each being independent of the other, but acting simultaneously, instead of sequentially. he demonstrated that a projectile follows the path of a parabola, instead of a straight line, and that it descends a vertical distance which is proportional to -the square of the time taken to fall. that is, a thrown object will strike the ground in the same amount of time as an object simply dropped from the same height. this suggested that gravity was a constant force. galilieo described mathematically the motion of a lever such as a seesaw in which the weight on one side multiplied by its distance from the fulcrum is equal to the weight on the other side multiplied by its distance from the fulcrum. galileo determined that a pendulum, such as a hanging lamp, swings back and forth in equal intervals of time. he measured this time with water running through a tube; the weight of the water was proportional to the time elapsed. also, pendulums with equal cord length swing at the same rate, regardless of the substance, weight, or shape of the material at the end. so a pendulum could be a mechanical clock. galileo knew that ice floated on water because ice is less dense and therefore lighter than water. it had formerly been thought that ice was heavier than water, but floated on water because of its shape, especially broad, flat-bottomed pieces of ice. the telescope was invented in 1608. the next year, galileo built a greatly improved telescope to observe bodies in the skies. he observed that the spots on the moon had shifting illumination and that the moon's perimeter had a jagged outline. from this he deduced that the surface of the moon had mountains, valleys, and craters much like the earth, and was illuminated by reflected light. he noticed that the planet jupiter had moons orbiting it in a manner similar to the orbit of the earth's moon. he observed that when the planet venus was very small it had a round shape and when it was very large, and therefore nearer the earth, it had a crescent shape. also, venus progressed through periodic phases of increasingly wide crescent shapes in a manner similar to the phases of crescent shapes of the earth's moon. he realized that these features of venus could be explained only if venus revolved around the sun, rather than around the earth. this finding added credence to the copernican theory that the earth and all planets revolve around the sun. but church doctrine that the sun revolved around the earth was supported by the biblical story of god making the sun stand still to give additional sunlight on a certain day so a certain task could be completed that day. galileo argued against a literal interpretation of the bible, so he was denounced by the church. his finding of sunspots on the sun conflicted with church doctrine that the celestial bodies such as the sun were perfect and unblemished. his observation that certain sun spots were on certain locations of the sun, but changed location over time, suggested that the sun might be rotating. he observed that when air was withdrawn by a suction pump from the top of a long glass tube whose lower open end was submerged in a pan of water, the water rose to a height of 34 feet and no higher. this result indicated that the evacuated space above the water was a vacuum: an empty space. the notion of a vacuum, a space where there is nothing or void, was difficult for philosophers to accept. they believed that nature abhored a vacuum and would prevent it. about 1600, galileo invented the first thermometer by heating air at the top of a tube whose open end was in a bowl of water; as the top end cooled, the air contracted and water rose part way up the tube; the column of water rose or fell with every change of temperature. galileo invented the compound refracting microscope, which used more than one lens, about 1612. galileo's book on the arguments for and against the copernican theory was unexpectedly popular when published in 1632. the general public was so persuaded by the arguments that the earth revolved around the sun that papal authority felt threatened. so galileo was tried and convicted of heresy and sentenced to house arrest as an example to others who might question church doctrine, even though the seventy year old galileo recanted and some of the inquisition judges who convicted him believed the copernican theory and their decision did not assert the contrary. johannes kepler was a mathematician from germany who made his living as an astrologer. he was in contact with galileo by letter, as most scientists of europe were with each other. kepler was fascinated with perfect geometric shapes, which he tried to relate to celestial phenomenon. he discerned that the orbit of mars was not perfectly circular. he knew that the apparent path of the sun with respect to the constellation of fixed stars differed in speed at different times of the year. he opined that this showed that the speed of the earth revolving around the sun varied according to the time of year. then he measured the angles between the earth and the sun and the earth and mars as they changed through the martian year. he noted when the earth, mars, and the sun were on the same straight line. then he deduced the earth's true orbit, and from this the true orbits of the other planets. then by trial and error, he attempted to match this empirical data with regular mathematically defined shapes, until he discovered in 1609 that these paths were elliptical. also, the planets each move faster when they are nearer the sun and more slowly when they are farther from the sun so that in equal time intervals, a line from the planet to the sun will sweep out equal areas. this observation led him to opine that there is a force between the sun and each planet, and that this force is the same as that which keeps the moon in its orbit around the earth. thirdly, in 1619, he found that the square of the time for each planet's orbit about the sun is proportional to the cube of that planet's mean distance from the sun, so that the farther planets orbit at a slower speed. he connected the earth's tides with the gravitational pull of the moon. kepler also confirmed that the paths of comets were governed by a law and were farther from the earth than the moon. this contradicted the church's explanation that what lies within the moon's orbit pertains to the earth and is essentially transitory and evil, while what lies beyond belongs to the heavens and is permanent and pure. renee descartes, a french mathematician, scientist, and philosopher, had a revelation that the structure of the universe was mathematical and that nature obeyed mathematical rules. in 1637, he invented analytic [cartesian] geometry, in which lines and geometric shapes can be described by algebraic equations and vice-versa. all conic sections: circles, ellipses, parabolas, and hyperbolas, could be represented by equations with two unknowns, or variables, on a coordinate system in which each point is represented by a pair of numbers representing distances from the two axis lines. an algebraic equation with two unknowns, could be represented as a shape thereon. an algebraic equation with one unknown represented a straight line thereon. the points of intersection geometrically were equivalent to the common solution of the associated algebraic equations. he started the convention of representing unknown quantities by x, y, and z and known quantities by a, b, and c. so, for instance, a circle with center at point 2,3 and a radius of 4 was represented by the equation: (x-2) squared + (y-3) squared = 4. he pioneered the standard exponential notation for cubes and higher powers of numbers. analytic geometry aided in making good lenses for eyeglasses. the glass was first manufactured with attention to quality. then, after it cooled and solidified, the clearest pieces were picked and their surfaces ground into the proper curvature. descartes formulated the law of refraction of light, which deduces the angle of refraction [deflection] of light through a medium from the lights' angle of incidence and the speed of light in each media in which the light passes. this explained why a rainbow is circular. in 1644, he described the universe in terms of matter and motion and suggested that there were universal laws and an evolutionary explanation for such. he opined that all effects in nature could be explained by spatial extension and motion laws that 1) each part of matter retains the shape, size, motion, or rest unless collision with another part occurs; 2) one part of matter can only gain as much motion through collision as is lost by the part colliding with it; and 3) motion tends to be in a straight line. descartes feared persecution by the church because his ideas did not correlate with the biblical notion of god's creation of the universe in the order of light, then sky and oceans and dry land, then plants, then seasons and the sun and moon and stars, then fish and birds, then all animals, and finally man. descartes believed in a good and perfect god, and thought of the world as divided into matter and spirit. the human mind was spirit and could exist outside the human body. without the mind, human body was a machine. the human mind had knowledge without sense experience, e.g. the truths of mathematics and physics. ideas and imagination were innate. his observation that sensory appearances are often misleading, such as in dreams or hallucinations, led him to the conclusion that he could only conclude that: "i think, therefore i am." he rejected the doctrine that things had a proper behavior according to their natures, e.g. the nature of acorns is to develop into oak trees. as an example of erroneous forming of conceptions of substance with our senses alone, he pointed out that honeycomb has a certain taste, scent, and texture, but if exposed to fire, it loses all these forms and assumes others. he considered to be erroneous the belief that there are no bodies around us except those perceivable by our senses. he was a strong proponent of the deductive method of finding truths, e.g. arguing logically from a very few selfevident principles, known by intuition, to determine the nature of the universe. christian huygens, a dutch physicist, used the melting and the boiling point of water as fixed points in a scale of measurements, which first gave definiteness to thermometric tests. there was much mining of coal, tin, copper, lead, and iron in the 1600s. coal was transported from the coal pits down to the rivers to be loaded onto ships on coal wagons riding on wooden rails. the full coal cars could then be sent down by gravity and the empty wagons pulled up by horses. sheet metal, e.g. lead, was used for roofing. coal was much used for heating houses, and for laundry, cooking, and industrial use, such as extraction of salt, soap boilers, and manufacture of glass, bricks and tiles for buildings, anchors for ships, and tobacco pipes. it was used in the trades: bakers, confectioners, brewers, dyers, sugar refiners, coopers, starch makers, copper workers, alum makers, and iron workers. in 1604 the haberdashers, who sold imported felt for hats, got a charter of incorporation. a tapestry factory was established in 1619. flax-working machines came into existence. the royal postal system carried private as well as royal letters, to increase income to the crown. postmasters got regular pay for handling without charge the mail of letters that came from or went to the letter office in london. the postmaster kept horses which he let, with horn and guide, to persons riding "in post" at 3d. per mile. the post was to travel 7 mph in summer and 5 mph in winter and sound his horn four times in every mile or whenever he met travelers. wool and animals for butchering were sold in london with the sellers' agent in london taking the proceeds and paying out to their order, the origin of check writing. scriveners drew up legal documents, arranged mortgages, handled property transactions, and put borrowers in touch with lenders. they and the goldsmiths and merchants developed promissory notes, checks, and private paper money. the influx of silver from the new world was a major factor in the second great inflation in england and in the devaluation of money to about one third of what it had been. also contributing to the inflation was an outracing of demand over supply, and a debasement of the coinage. this inflation benefited tenants to the detriment of their lords because their rents could not be adjusted upward. there was an increase in bankruptcies. houses of correction were built. as attorney general, edward coke was impassioned and melodramatic. he once described the parts of the penalty of treason as follows: being drawn to the place of execution reflected the person's not being worthy any more to tread upon the face of the earth; being drawn backward at a horse tail was due to his retrograde nature; being drawn head downward on the ground indicated that he was unfit to breathe the common air; being hanged by the neck between heaven and earth indicated that he was unworthy of either; being cut down alive and his privy parts cut off and burnt before his face indicated he was unworthily begotten and unfit to leave any generation after him; having his bowels and inners taken out and burnt indicated he had inwardly conceived and harbored such horrible treason; his head cut off, which had imagined the treason, and his body to be quartered and the quarters set up to the view and detestation of men a prey for the fowls of the air. coke was subsequently elevated to the position of chief of common pleas and then to chief of the king's bench. but there coke propounded a doctrine of the supremacy of the law over the king as well as over parliament. for instance, coke would not agree to stay any case in which the king had a concern in power or profit, to consult with him. but the other eleven justices did agree. since james i believed in the divine right of kings, he therefore dismissed coke from his position as chief justice of the king's bench. james even believed that he could suspend any law for reasons known only to him and issue proclamations that were not limited to the reinforcement of old laws, but made new offenses with punishment of fine and/or imprisonment. the old writ of habeas corpus [produce the body] had been just to bring to court those persons needed for proceedings, but coke in 1614 had cited the writ with a new meaning "to have the body together with the cause of detention". coke then became a member of parliament and led the commons, where he exalted the authority of parliament vis a vis the king; that is, the king could not make any changes in law, religion, or taxation without consent of parliament. james arrested coke and two other members of the commons and put its leader john pym under house arrest for their outspoken opinions against the king's intended alliance with catholic spain and intended taking of a spanish wife. because of the deadlock that developed between the king and parliament, certain matters could not be addressed by legislation and were left to be decided judicially. this made judicial review of disputes important. james vastly increased the number of peerages, selling many, for example for 10,000 pounds. since there was a tacit understanding that members of parliament would not accept remuneration, this restricted eligibility for membership to the rich. the house of commons was composed mostly of attorneys, merchants from the large towns, and country gentlemen. the gentry members had 600 pounds [12,000s] annual income from land and the burgess members had 300 pounds [6,000s.]. there were two knights from every county, elected by men holding at least forty-shilling freeholds; four representatives from london, and one or two from every other borough, generally elected by the top business families'; and a representative from each of the two universities. for speaker, they always chose someone suggested to them by the crown. he decided who would talk and could hasten or delay bills, usually for the benefit of the crown. the clerk, a lifetime appointment of the crown, wrote out the bills and their amendments and kept track of proceedings. many in the commons were puritan in sympathy. in 1607, the house of commons developed a committee system to avoid being presided over by the royally designated speaker. a committee could consist of all the members of the house of commons with an elected chairman. an increasing number of issues were discussed in committee before coming to the commons and the commons came to ratify readily what had been done in committee. by 1610, there had developed in the house of commons an opposition to feudal tenures, purveyance, wardships, and impositions (special import and export duties on aliens set by the king without the consent of parliament that were supposed to be for the purpose of regulating trade instead of for revenue). there was also a call for free speech and an end to the king's habit at the end of parliament of imprisoning for a time those who had been too outspoken. the commons also asserted itself into foreign affairs by expressing an opinion against a treaty proposed by the king on which war could ensue. the treaty was abandoned. in london, organized groups such as the apothecaries, the skinners, and the grocers, were circulating printed statements of their cases to members of committees of the house of commons rather than just seeking out a friendly privy council member. in 1621, the protests made to committeemen about monopolies sold by james frightened him into canceling many of them. he had made many grants against competition in violation of law. the right of the commons to expel a member was asserted by the expulsion of a monopolist. by 1629, the speeches of prominent members and the course of proceedings were copied by stationers and sold in a weekly news report. the king's privy council dealt constantly with foreign affairs, and also with the great companies, and problems arising such as gold leaving the country, the dutch ships increased efficiency in transporting goods, the declining market for english cloth, strikes in the mining industry, decaying harbor works, the quality of food and drink, the wrongs done to the poor, and above all, the general peace and order. they formed commissions to study situations and sent orders to justices of the peace on methods to address certain problems and to sheriffs to carry out certain acts. about 1618, a group within the privy council began to concentrate on foreign affairs, especially "cabinet counsels", that is, with secret matters. james sold high offices of state to supplement his income. his income from customs had increased so much that it was now three times that from crown lands. the sheriff looked after crown lands and revenues in his county. he gathered the rents, the annuities, the stray animals, the deodands, the fees due to the king, the goods of felons and traitors. he was still a means of communication between the privy council and the county. he announced new statutes of parliament and proclamations by the king at the county courts and in the markets. he used posse comitatus to disperse riots. he was the functionary of the assize court, impaneling its juries, bringing accused men before it, and carrying out its penalties. he carried out elections of members of the house of commons. there were two high constables for each hundred. they were chosen by the justices of the peace at quarter sessions, and were usually small gentry or well-to-do yeomen. they were the intermediaries between the justices and the petty constables. the petty constable was the executive official of the village. he was usually elected by the suitors to the leet court of the manor for a year. he might be a farmer, an artisan, a carpenter, a shoemaker, or many times a tradesman, a butcher, or baker. he often visited the alehouse to learn of any trouble in the making. he would intervene in quarrels and riots and tell the participants to desist in the king's name. if they didn't, he could call on all bystanders to help him "force a quiet". he had to lead the rioters and causers of injuries to others, hold them there until he could bring him before the nearest justice. he would inform the justice of plots to trespass or forcibly enter land to take possession. he saw to it that no new cottages were built in the villages without due authority. he supervised markets and inns. he reported lapses of care for apprentices by their masters to the justice. at harvest time, he called upon all able bodied persons to assist and punished those who didn't respond by putting them in the stocks or fining them forty shillings. he arrested and whipped vagrants and sturdy rogues and sent them back to their place of birth through constables on the way. if a horse was stolen, he raised the hue and cry to all neighboring constables. he made inquiry into the paternity of the coming child of an unmarried pregnant girl to make him take responsibility for the child and pay her 8d. a week lest it fall into the responsibility of the village. in a town, he might have watchmen to help him see that the streets were peaceful at night. the constable assisted the justice of the peace, the high constable, and the sheriff. he pressed men into military service. he collected taxes for the sheriff and collected the money for purveyance, the money for the poor, maimed soldiers, and various kinds of prisoners, which the parish had to pay. he was often the spokesman for the village in village concerns, such as too many alehouses, brought to the attention of justices at quarter sessions. the constable and churchwardens together collected money for the parish, looked after the needy, and kept in close touch with the overseers of the poor, who cared for the sick and old, found work for the idle, took charge of bastards, apprenticed orphan children, and provided supplies for the workhouse. in 1609 the east india company was given a monopoly by the crown that was indefinitely long as long as it was profitable to the realm in the king's opinion. interlopers were to forfeit their ships and goods, one-half to the company and one-half to the crown. monopoly status made the company competitive with the dutch and portuguese monopoly companies. the crown received a gift or a loan from the company in return. at first, the company raised capital for each separate voyage. but voyages tried to undercut each other and rival factions squabbled over cargoes. so the company then raised a "terminable joint-stock" for a period of years. the first of these was issued in 1613-16 and financed a fleet every year for four years. subscriptions were called in by yearly installments and dividends paid out yearly. the voyage of 1613 brought shareholders a profit equivalent to about 11% a year. by 1620, the company operated thirty to forty "tall ships", many built in its own dockyards. these dockyards were so technologically advanced that they were daily viewed by visitors and ambassadors. here, besides wet and dry docks, there were timber yards, a foundry and cordage works for supplying the ships' hardware and a bakery and saltings for their provisioning. more than 200 craftsmen were directly employed in the yard. overall the company was one of london' largest employers. in 1607, the muscovy company, hired henry hudson to find a northwest passage through north america to the pacific ocean. in 1606, the first charter of the virginia company was issued for trading purposes. it gave the settlers "all liberties, franchises, and immunities" they had in england. to oversee this colony, the crown appointed a council. virginia established the episcopal church by law. virginia became a joint-stock company in 1609. but exports were few (timber, soap ashes, pitch, tar, and dyes) for several years, and then tobacco emerged as a source of profit. king james imposed a heavy duties on imported tobacco because it corrupted man's breath with a stinking smoke. life was difficult for puritan separatists, who wanted to separate from the established church. they were imprisoned and their houses were watched day and night for illegal meetings. in 1620, after trying holland and when there was a depression in england, a few puritan separatists, along with other pilgrims, left for virginia in the mayflower, but landed in new england and founded plymouth colony. they were led by william bradford and william brewster, their spiritual leader. they planted fields and made friends with the indians. in 1621, they secured a patent to the merchants and planters together for a voluntary joint-stock company in new england. later, it became the self-governing massachusetts bay colony. the canons of the church of 1604 provided for excommunication for anyone who propounded that the king did not have the same authority in ecclesiastical matters as the godly kings among the jews and christian emperors in the primitive church, that the church of england was not a true and apostolic church, that worship according the book of common prayer and administration of sacraments was corrupt or superstitious, or that other methods of the church were wicked, unchristian, or superstitious. church sanctuary was abolished for those accused of criminal offenses because it had been abused by thieves paying their rent by thieving at night. it remained available to those accused of civil offenses. about 5% of the population was catholic, although it was against the law to practice this religion. indeed it long been the practice to sequester their lands, punish them for going to mass, fine them for not attending the established church, banish their priests, and imprison those who aided priests. there was a catholic plot in 1605 to blow up parliament and the king with gunpowder and to restore catholicism as the state religion with a catholic king. it was discovered and the conspirators were executed. then there was a crackdown on catholics, with houses being searched for hiding places for priests. also, legislation was passed barring catholics from many offices. the law churchwardens of every parish shall oversee the poor in their parish. they shall, with consent of the justices of the peace, set to work children whose parents cannot maintain them and also set to work married or unmarried persons who have no trade and no means to maintain themselves. churchwardens shall tax every inhabitant, including parson and vicar and every occupier of land and houses, as they shall think fit. there will be a convenient stock of flax, hemp, wool, thread, iron and other necessary ware and stuff to set the poor on work. there will be competent sums of money for the relief of the lame, impotent, old, blind, and others not able to work, and also for the putting out of children to be apprentices. child apprentices may be bound until 21 years of age or until time of marriage. they shall account to the justices of the peace for all money received and paid. the penalty for absence or neglect is 20s. if any parish cannot raise sufficient funds, the justices of the peace may tax other nearby parishes to pay, and then the hundred, and then the county. grandparents, parents, and children of every poor, old, blind, lame, or impotent person not able to work, being of sufficient ability, shall at their own charge, relieve and maintain every such poor person in that manner and according to that rate as justices of the peace of that county determine, or else forfeit 20s. per month. two justices of the peace may commit to gaol or house of correction persons refusing to work and disobedient churchwardens and overseers. the overseers may, with the consent of the lord of the manor, build houses on common or waste land for the poor at the expense of the parish, in which they may place more than one family in each house. every parish shall pay weekly 2-10d. toward the relief of sick, hurt, and maimed soldiers and mariners. counties with more than fifty parishes need pay only 2-6d. the county treasurer shall keep registers and accounts. soldiers begging shall lose their pension and shall be adjudged common rogues or vagabonds subject to imprisonment and punishment. a seminal patent-protection law was passed in 1624. it stated that all monopolies to any person or persons, bodies politic or corporate for the sole buying, selling, making, working, or using of anything within the realm are void. this does not include london or towns. parties aggrieved by such may recover treble damages in the superior courts, with double costs. excepted are existing patents, for 21 years or less, for new inventions and for future patents for 14 years or less. excepted also are patents for printing or making saltpeter, gunpowder, shot or ordinance, etc.; patents concerning allum mines or newcastle coal or glass making or export of calves' skins or making smalts [deep-blue pigment or glass] or melting iron ore; grants of office; and licenses for taverns. persons stealing crops from lands or fruit from trees shall be whipped. every person shall receive the holy communion in church at least once a year or else forfeit 20 pounds for the first year and 40 pounds for the second year, and threescore pounds for every year after until he takes the said sacrament. every person convicted of drunkenness shall be penalized 5s. or else placed in the stocks for six hours, because the loathsome and odious sin of drunkenness has grown into common use lately and it is the root of many other sins, such as bloodshed, stabbings, murder, swearing, fornication, and adultery, and is detrimental to the arts and manual trades and diverse workmen, who become impoverished. offenders convicted a second time shall be bound with two sureties to the sum of 200s. lewd women, having bastards, chargeable to the parish, shall be committed to the house of correction to be punished and set to work for one year. mothers concealing the death of a bastard baby shall suffer as for murder, unless one witness proves the child was born dead. persons deserting their families shall be deemed incorrigible rogues and punished as such. persons such as sorters who purloin or embezzle wool or yarn delivered to them by clothiers and the receivers thereof, knowing the same, shall recompense the party grieved or else be whipped and set in the stocks. because benefit of clergy is not allowed to women convicted of felony by reason whereof many women suffer death for small causes, any woman convicted for the felonious taking of any money, goods or chattels greater than 12d. and less than 10s. other than burglary or robbery on the highway or from the person of any man or woman without their knowledge, shall be branded and marked in the hand upon the brawne of the left thumb with a "t" and imprisonment, whipping, stocking, or sending to the house of correction for a year or less. actors profaning god, jesus, or the holy ghost on stage are to be penalized 200s. in 1604 it was decided that it was not necessary to prove that witchcraft caused the death of a person for there to be punishment for the witchcraftery. all that was necessary now was the practice of witchcraft. the punishment was death by hanging. also, consulting or feeding an evil spirit was felony. sheriffs summoning defendants without a writ shall pay 200s. and damages to the defendant, and 400s. to the king. since administrators of goods of people dying intestate who fail to pay the creditors of the deceased often can't pay the debts from their own money, the people (who are not creditors) receiving the goods shall pay the creditors. no merchant may dress black rabbit skins, nor export them, unless dressed by skinners and bought from them because the skinners have been thus deprived of their livelihoods to their impoverishment throughout the realm. beer may be exported when malt is at 16s. per quarter because exporting beer instead of barley and malt will (1) increase the export tax to the king, (2) increase income for coopers and brewers, and (3) provide more jobs in transporting beer, which is more voluminous, to the great comfort of the port towns. fish which are spawning and growing in harbors may not be taken by any net or weirs because this practice has hurt fishermen and the realm. no one shall sell beer or ale to an unlicensed alehousekeeper because abuses there have become intolerable. no person at least 18 years of age may be naturalized or restored in blood after being attainted unless he takes the sacrament and the oath of supremacy [of the king over the church of england], and oath of allegiance [to the king]. money given by will for the apprenticeship of poor children shall be managed by incorporated towns and unincorporated parishes. masters receiving such apprentices shall become bound with sufficient sureties. houses of correction shall be built in every county. london may make a trench to bring water to the north part of the city and shall compensate the owners of lands by agreement with them of an amount or an amount determined by commissioners. all hospitals and abiding places for the poor, lame, maimed, and impotent persons or for houses of correction founded according to the statute of elizabeth shall be incorporated and have perpetual succession. only lands and hereditaments paying rents to the crown within the last sixty years shall be claimed by the crown; the title of all persons and corporation who have enjoyed uninterruptedly against the crown for the last sixty years are confirmed against the crown. no one may take more than 8% interest on loans because 10% has caused many, including gentry, merchant, farmer, and tradesman, to sell their land and forsake their trade to pay their debts. as attorney general, edward coke introduced the crime of "seditious libel" in a case before the star chamber in 1606. these written slanders or libels were viewed as incitements to disorder and private vengeance. because the tendency to cause quarrels was the essence of the crime, the truth of the libel was not a defense, but might be an aggravation of criminality. edward coke, former chief justice of both the court of common pleas and court of the queen's bench, wrote his reports on court cases of all kinds through forty years and his institutes on the law, in which he explained and systematized the common law and which was suitable for students. this included a commentary and update of littleton, published in 1627; old and current statutes; a description of the criminal law; and lastly an explanation of the court system, the last two published in 1644. coke declared that "a man's house is his castle". coke waged a long battle with his wife over her extensive lands and personal property and the selection of a husband for their daughter. in his institutes, he described the doctrine of coverture as "with respect to such part of the wife's personality as is not in her possession, as money owing or bequeathed to her, or accrued to her in case of intestacy, or contingent interests, these are a qualified gift by law to the husband, on condition that he reduce them into possession during the coverture, for if he happen to die, in the lifetime of his wife, without reducing such property into possession, she and not his representative will be entitled to it. his disposing of it to another is the same as reducing it into his own possession." he further states that "the interest of the husband in, and his authority over, the personal estate of the wife, is, however, considerably modified by equity, in some particular circumstances. a settlement made upon the wife in contemplation of marriage, and in consideration of her fortune, will entitle the representatives of the husband, though he die before his wife, to the whole of her goods and chattels, whether reduced into possession or not during the coverture. ... a settlement made after marriage will entitle the representative of the husband to such an estate in preference to the wife. ... a court of equity will not interfere with the husband's right to receive the income during the coverture, though the wife resist the application." no person convicted of catholicism may practice the common law as a counsellor, clerk, attorney, or solicitor, nor may practice civil law as advocate, or proctor, nor shall be justice, minister, clerk, or steward in any court, nor practice medicine, nor perform as apothecary, nor be officer in a town, in the army, or navy, or forfeit 100 pounds as punishment. nor may they be administrators of estates, or have custody of any child as guardian. nor may they possess any armor, gunpowder, or arms. nor may anyone print or import popish books rosaries, or else forfeit 40s papists running a school must forfeit 40s. a day for such. anyone conveying a child beyond the seas to be educated in popery may not sue in the courts, may not hold any office, and shall forfeit 100 pounds and all lands. but the child returning may have his family lands restored to him if he receives the sacrament of the lord's supper in the established church after reaching 18 years of age. judicial procedure james i asserted an authority to determine the jurisdiction between the various courts. the court of the king's bench had the major part of the civil business of the courts. the star chamber court still was primarily directed against force and fraud and defended the common people from over-mighty lords and over-pliable justices of the peace, for instance by deterring enclosure. it also enforced monopolies. however, there was a growing tendency for king james, who sat on it, to abuse its power with high fines. for instance, a lord accused with foul language by a huntsman of following hounds of a chase too closely threatened to use his horse whip on the huntsman's master when the huntsman threatened to complain to his master. the lord was fined 10,000 pounds. james' council used torture to obtain information from accused felons about possible conspiracies against him. the ordinary administrative court of first instance is formed by the single justices of the peace, who issue orders regarding public safety, order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, and fire, and particularly begging and vagrancy as well as regulations of wages, servants, apprentices, and day laborers. for more important resolutions, the special sessions of the justices of the peace of a hundred for a court of intermediate instance and appointed overseers of the poor. all justices of the peace were present at the quarter sessions, which were held at least four times a year, and were primarily a court of appeal from penal sentences, but also make the county rate, appoint county treasurers and county prison and house of correction governors, regulate prices and wages, settle fees of county officials, grant licenses for powder mills, and register dissenting chapels. it heard appeals expressly allowed by statute. the central courts also heard appeals by writ of certiorari as to whether an administrative act was in accordance with existing law, whether the court is competent, and whether the administrative law has been rightly interpreted. this writ of certiorari ceased in the 1700s. justices of the peace who have the power to give restitution of possession to tenants of any freehold estate of their lands or tenements which have been forcibly entered and withheld, shall have like power for tenants for term of years, tenants by copy of court roll, guardians by knight service, and tenants by elegit statute merchant and staple of lands or tenements [tenant-plaintiffs holding property to receive income therefrom for satisfaction of a debt of defendants]. the justices of the peace were chosen by the crown, usually by the chancellor. the qualifications were residence in the county, suitability of moral character, religious uniformity, and the possession of lands or tenements with twenty pounds a year. they were almost exclusively country gentlemen, except in the towns. in the corporate towns, the mayor, bailiff, recorder, and senior aldermen were ex officio [by virtue of the office] justices of the peace. their main duty was to keep the peace. if a justice heard of a riot in the making, he could compel individuals at the place to give bonds of "good-a-bearing" and cause a proclamation to be made in the king's name for them to disperse. two justices or more had the authority to arrest the rioters and send a record of it to the assizes and to the privy council. if the riot had taken place before their arrival, they could make an inquiry by a jury and certify the results to the king and his council. the justices had men brought before them on many kinds of charges, on their own summons, or on initiative of the petty constable. they tried to draw these men into confession by questioning. after indictment, a person had the choice of a petty jury trial or paying a fine. the justices of the peace could insist upon presentment juries or surveys of offenses by local officers, but, without the institution of policemen, not many crimes were prosecuted because victims were unwilling or could not afford to initiate judicial action. their unwillingness was partly due to the severity of penalties, e.g. death for the theft of over 12s. and whippings and fines for misdemeanors. further, the offender was frequently a neighbor with whom one would have to live. mediation by the local constable often took place. when there an outbreak of lawlessness in an area, a commission might be set up especially for that area to enforce the law. assault cases were common in courts of assize and courts of quarter sessions. the quarter sessions were those of a number of justices of the peace held for a couple of days four times a year for the more important cases in the jurisdiction of the justices of the peace. assault was violence or threat of imminent violence. fines were graduated according to the means of the offender, who was usually bound over to keep the peace. most involved offenders and victims who were neighbors and included people of substantial standing in the village. also, a sizable minority were directed against local officers such as constables, bailiffs, or taxcollectors. three-fourths of all assize indictments and many quarter-sessions indictments were for various types of theft, including petty larceny, grand larceny, housebreaking, burglary, sheep stealing, and robbery. these offenses were mostly opportunistic rather than planned, except for london's underworld of professional thieves and the cutpurses of country markets and highway robbers on lonely roads. there were substantial peaks in theft in periods of harvest failure and industrial depression, especially by vagrants. but most of the poor never stole. the justices of the peace usually deferred to the learned justices of assize for cases of felony, murder, rape, highway robbery, and witchcraft. most homicides were the result of an impassioned argument leading to blows inflicted by nearby commonplace items picked up and used as weapons. only 18% of homicides were within the family. men were still declared outlaw if they failed to come to court after repeated summons. the lord keeper regularly advised the assize justices, before each circuit departure, to relieve the poor, supply the markets, maintain the roads (which were frequently impassable in winter for wagons or coaches), enforce church attendance, suppress superfluous and disorderly alehouses, and put down riots, robberies, and vagrancy, and in times of dearth, to suppress speculation in foodstuffs, prevent famine, and preserve order. in fact, the justices were most attentive to offenses which affected them as rate payers for the poor. these were offenses against cottaging laws (e.g. erection of cottages which lacked the statutory four acres of land), harboring of "inmates", disputes of settlement of paupers, bastardy, vagrancy, church nonattendance, and above all, disorderly alehouses. alehousing had been a wellestablished means of poor employment since the 1200s, so it was hard to enforce licensing laws. further, alehouses were the centers of social life for the common people; both women and men met their friends there. if an attorney or solicitor delays his client's suits to work his own gain or over charges his client, the client can recover his costs and treble damages and the attorney and solicitor shall be disbarred. none may be admitted to any court of the king but such as have been brought up in the same court or is otherwise well-practiced in soliciting of causes and has been found by their dealings to be skillful and honest. an attorney who allows another to use his name shall forfeit 400 shillings and be disbarred. offenders shall pay the charge of their own conveyance to gaol or the sum shall be levied by sale of their goods so that the king's subjects will no longer be burdened thereby. plaintiffs' costs shall be paid by the defendants only where there is a judgment against the defendant in all actions in which the plaintiff is entitled to costs on judgment for him, to discourage frivolous and unjust suits. defendants may not petition to remove a case to the westminster courts after a jury is selected because such has resulted in unnecessary expense to plaintiffs and delay for defendants in which they suborn perjury by obtaining witnesses to perjure themselves. in 1619, by the writ of quo warranto, a government office or official could be made to explain by what right he performed certain acts. the court of high commission heard mostly matrimonial cases, but also moral offenses both of clergy and laity, and simony [buying or selling ecclesiastical preferment, ecclesiastical pardons, or other things regarded as sacred or spirtual], plurality, drunkenness, and other clerical irregularities. by 1616, chancery could order injunctions to stop activities. in slade's case of 1602, the court of the queen's bench held that assumpsit may be brought in place of the action of debt. so assumpsit supplants debt for recovering liquidated sums and is then called "indebitatus assumpsit". the trial of sir walter ralegh in 1603 began a call by people for a right to confront and question one's accusers. before trial, privy counselors who in theory sat as impartial justices, cross-examined ralegh in prison. with a carefully selected jury present, the trial began with reading of the indictment, which ralegh had not yet seen. he was charged with treason in plotting with catholic spain to put arabella stuart on the throne. arabella was to write to spain promising peace, toleration of catholics in england, and direction by spain in her marriage choice. he pled not guilty and took no exception to any jurors, stating that he knew them all to be honest men. next, attorney general edward coke, his enemy and rival, and he engaged in a debate about who was right, with coke outright bullying him. coke then produced a signed confession by lord cobham that implicated him in the alleged conspiracy and accepting 10,000 crowns for his part. ralegh was given permission to speak. he said that cobham had retracted his confession. he ridiculed the idea that he would betray england to spain for gold after fighting against spain, including risking his life three times, and spending 4,000 pounds for the defeat of spain. he pointed to a treatise he had written to the king on the present state of spain and reasons against peace. then there was a discussion on the validity of cobham's confession. cecil gave an oration of ralegh. coke gave a speech. ralegh asked to have his accuser brought before him face to face. he cited law that two witnesses were necessary for a conviction for treason. chief justice popham replied that only one witness was necessary under common law, which applied to his case, and that the trial was properly conducted by examination of the defendant. coke added that it would be improper to call cobham because he was a party. then coke surprised ralegh with a letter from cobham stating that ralegh had asked cobham to procure him an annual pension of 1500 pounds from spain for disclosing intelligence. ralegh acknowledged that a pension was offered, but denied that he had ever intended to accept it. he admitted that it was a fault not to inform authorities of this offer. the jury deliberated for fifteen minutes and returned with a verdict of guilty. the chief justice delivered the sentence for treason: drawing, hanging, disemboweling, beheading, and quartering. the whole trial was not so much to access guilt, but to show the general public that the person was guilty. church courts were revived after a period of disuse. they could annul an unconsummated or legally invalid marriage (e.g. consanguinity, impotence, a witnessed precontract to marry) and order judicial separations in case of adultery, cruelty, or apostasy. annuled marriages made a person's children illegitimate. an action at common law for "criminal conversation" [adultery] with the plaintiff's spouse or for assault and battery could result in an order for separation. but only a private statute of parliament could grant a divorce, which allowed remarriage. it was granted in only a few cases and only to the very wealthy. church officials spied upon people's conduct to draw them into their courts and gain more money from the profits of justice. in 1610, edward coke, chief justice of the court of common pleas, decided that the statute giving the royal college of physicians power to imprison and fine those practicing without a license was invalid and unenforceable because it gave the college half of each fine awarded, which was a conflict of interest with its role as an adjudicator. coke said that a maxim of the common law was that no man ought to be judge in his own cause. by this decision, he asserted a court supremacy over parliament with respect to the validity of statutes. he opined that the courts should not only be independent of the crown, but should act as arbiter of the constitution to decide all disputed questions. in his words, "when an act of parliament is against common right and reason, the common law will control it and adjudge such act to be void." justices still explained and in some degree interpreted legislative acts of parliament as they had since the 1500s, but their right to do so was coming into question and was slowly lost. female scolds were still dunked into water as punishment. only barristers, who were called to the bar after being in long residence in one of the inns of court, could practice before the king's court. attorneys and solicitors prepared cases for barristers and practiced before minor courts. the king appointed the justices, with the advice of the chancellor. james i often intimidated the justices to see things his way. the oath of a justice was: "well and truly ye shall serve the king and his people. and ye shall take no fee or livery of none but the king, nor gift or reward of none that hath a do before you except it shall be meat or drink of small value, as long as the plea hangs before you. and ye shall do equal law and execution of right to all the king's subjects rich and poor, without regard to any person. ye shall counsel our sovereign lord the king in his need. and ye shall not delay any person of common right for the letters of the king or of any person or for any other cause ... so help you god." the courts of king's bench and common pleas, and the chancery all met simultaneously in westminster hall. throngs passed up and down the middle aisles between the courts, including booksellers, stationers, scriveners, and vendors of bread and hot meat. the hall was so cold that people kept on their coats and hats. the last court case concerning villeinage was in 1618. chapter 15 the times: 1625-1642 the entourage of charles i came to be called "cavaliers". they were named by their opponents for the spanish caballero who was a catholic who prosecuted protestants. their hair had long, curled, and flowing locks. they wore a broad-rimmed decorated hat. their fancy jackets and breeches were loose. boots were wide and folded over at the top. young men wore earrings and painted their faces. a lady wore her hair in ringlets on each side of her face. her dress was fitted at the waist, with a peaked bodice. it was low at the shoulders with a scoop neckline in front. she often wore much lace, especially at the neck down to the bust line. her outer dress and under-skirt that was revealed in front, were full and made of satin and stiff silk or velvet. only hose of silk were worn at court. a majority of prosperous industrial towns and fee farmers, led sometimes by lords or old landed gentry, were puritans. they dressed plainly and in somber colors such as black, grey, and buff, with no ornamentation except plain white collars and cuffs of linen rather than of lace. wool replaced silk and velvet. no jewelry was worn. the puritan women also wore long white aprons. the puritan women smoothed their hair back into little knobs and covered their hair and head with a white covering. both puritan men and women wore broad-rimed hats and plain shoes. the ordinary country man wore a felt hat, broadcloth coat, woolen trousers, hand-knitted worsted stockings, and plain, strong shoes. the puritan men for a time had short-cut hair. the puritanparliamentarians were given the name "roundheads" after the cropheaded london apprentices whose rioting had marked every stage of the conflict between king and parliament. religion was a favorite and serious topic of discussion, even among the illiterate. nine-tenths of the people were protestant. on the whole, they were more inclined to salvation by grace than to salvation by good works. popular reading included guides for good manners such as "the rich cabinet" by thomas gainsford, and "youths behavior" translated from the french by francis hawkins. it advised not to sit with one leg on the other, but with the feet even; not to spit on one's fingers; and not to sniffle in the sight of others. books for ladies such as "delights for ladies" by hugh platt told them how to adorn themselves, tables, closets, and rooms with beautiful objects, perfumes, and waters. it taught preserving and the making of candy preserved by sugar, cooking, and housewifery. gervase markham wrote advice for men in "hobsons horse-load of letters", which addressed serious negotiations, private businesses, amorous accomplishment, wanton merriment, and the defense of honor and reputation. "a helpe to discourse" primed a man to meet company with suggested questions and answers, epigrams, riddles, and jests. in henry peacham's "the compleat gentleman" (1622), the model cavalier is portrayed in terms of horsemanship, tilting, sports, choice of companions, reserved and dignified conduct, good scholarship, and responsibility. this popular book was a guide to university, where there was a seven year course of classroom lectures. it advised conversation with men of the soundest reputation for religion, life, and learning, but recreation with those of the same rank and quality. first place was to be given to religion, so that the foundation of all studies would be the service of god. following in importance were: speaking and writing in english or latin (grammar, syntax, and rhetoric), astronomy, astrology, geography (whose authorities were pliny, strabo, and the pagan writers of the first century), chorography [map-making], mathematics (including arithmetic and geometry), poetry, (reading, writing, and criticizing), music (including part-music), drawing, limning [putting drawings in books], painting, art history, exercise (riding, running, leaping, tilting, throwing, wrestling, swimming, shooting, and falconry), logic and disputation (if related to one's intended profession such as the law), philosophy (plato and aristotle), and some medicine and botany. richard brathwaite's "the english gentleman" portrays the somber puritan who accepts the gospel of work. he is a staid and serious businessman. "matrimonial honour" by daniel rogers opined that for success, a marriage must be godly, with the parties equally religious, worshipping together in private and in public. a hasty or worldly marriage would bring repentance. the spouses should agree, but keep to their spheres. children should not be spoiled. large households were more or less self-supporting and were managed by their ladies. work included ordering wool, hemp, and flax; making cloth and dying it; dairy work; brewing; malting; baking; preserving wines; extracting oils; distilling perfume; and putting on banquets. couches were coming into use in parlors. the king and his court entourage settled for most of the year in whitehall instead of traveling around the country. the king let the public into hyde park, the king's private hunting park, for recreation. the city of london and westminster were still separate, but a mass of hovels was springing up in between them. in certain areas there were houses crowded with those wanted for minor offenses, small thefts, and debt. bailiffs did not dare venture into these areas because the inhabitants hid and defended each other unless the offense was a major one. the penalty for stealing even small sums was still death. the water carrier was still active and the night transport of sewage necessary. inigo jones was the first architect of consequence. he had studied in italy and designed and built the banqueting house at whitehall, near westminster, in london in 1622. it had classical proportions and nice shaping and dressing in stone. he was now an arbiter of taste for the king charles and his queen and built many structures for them, including the queen's chapel at st. james palace and her bedroom in the queen's hose in greenwich. all over london and the country he and his pupils built many classical buildings, including houses, churches, stables, lodgings, out-buildings, staircases, galleries, watergates, and archways. they stood in stark contrast to the tudor buildings around them. in the 1632, jones started town planning in london with covent garden fruit and vegetable market and terraced houses around a central piazza surrounded by open arcades with a tuscan church at one end. in 1634, a man from the suburb of hackney introduced a line of coaches rented at 1s. per hour. they soon became very popular. the flemish johann baptista van helmont demonstrated that metals dissolved in acid can be recovered through chemical means and enunciated the doctrine that each thing in nature has its own specific organization. a large part of england was rebuilt as yeomen expanded their houses and others lower in rank replaced mud and wood hovels with brick and stone cottages. a separate kitchen appeared. the ground floors are boarded over to create bedrooms. permanent stairs replace ladders. glass appears in windows. glass and crockery replace wood and pewter, chairs replace benches. knives and forks become common. about 1640 began travel between towns by covered wagons called stage coaches. they carried passengers and goods and stopped at inns for stabling and repairs. work was begun in 1630 to make canals that would make marsh waters run to the sea. barges on canals were the most efficient mode of transportation. a barge could carry 50 tons on a canal and only 30 tons on a river. a single horse could haul an 8-ton wagon on iron rails or on a soft road, but only 1/8 of a ton on his back. a new trend of spring-sown crops led to better crop balance and reduced the risks of scarcity in a bad year. but the economy was still volatile. there were riots in london in 1640-1 from a complete breakdown in political consensus, the factions being the royalist city elite versus the middling and lesser merchants and craftsmen. in 1631, the clock makers broke away from the control of the blacksmiths. the gunmakers also broke away from the blacksmiths. the tinplate workers broke away from the ironmongers. "searching" for bad cloth became more difficult as the industry became more diversified. for instance, a new machine called a gigmill did the work of many hand finishers. in 1633, charles issued a commission for the reformation of the cloth industry with minute directions for the manufacture of cloth. but there were many disagreements over the details of manufacture and reform was difficult to enforce. by the 1630s, many parishes had a resident intellectual for the first time. the parish priests came from gentry, upper yeomanry, urban tradesmen and clerical families. they were educated and highly learned. they had libraries and were in touch with contemporary religious debates. they saw their role primarily as pastoral care. many wanted to improve the religious knowledge and moral conduct of their parishioners. puritan influence deepened as they forbade dancing, games, minstrels, and festivals. they punished superstitious conduct. they initiated prosecutions in church courts for sexual lapses and drunkenness. the church court had little coercive power and its punishments were restricted to penance or excommunication. many puritan sects espoused equality for women. by the 1640s women were preachers, e.g. in the baptist and anabaptist religions and, until 1660, prophetesses. these sects were mostly composed of the lower echelons of society. poor people did not respond to sermons as did the well-to-do. nor were they as involved in church activity, attending church only for marriages, baptisms, and funerals. charles i not only believed in the divine right of kings and was authoritarian; he was the ultimate autocrat. he had an unalterable conviction that he was superior to other men, who were insignificant and privileged to revolve around him. he issued directives to reverse jury verdicts. parliamentarians oliver cromwell and other educated men opposed this view. the commons voted not to grant charles the usual custom-dues for life, making it instead renewable each year, conditioned on the king's behavior. charles dissolved parliament before this passed. he continued to take tonnage and poundage. charles wanted money for war so he imposed many taxes, but without the consent of parliament. they included many of which had fallen into disuse. he imposed a compulsory "loan" on private individuals, which the courts held was illegal, and imprisoned those who refused. bail was denied to these men. simpler people who refused were threatened with impressment into the navy, which included being landed on shore to fight as marines and soldiers. they sought to revive the old writ of habeas corpus to get released, but to no avail. charles billeted unpaid and unruly soldiers in private homes, which they plundered. it was customary to quarter them in inns and public houses at royal expense. martial law was declared and soldiers were executed. but the citizens did not want martial law either. the magna carta was now seen as a protector of basic liberties, instead of a restoration of certain past rights.. both attorneys and laymen read "the pastyme of people" written by john rastell in 1529, which described the history of the magna carta from 1215 to 1225. also read was the "great abridgment" of the english law written by rastell in 1527, and coke's volume of his institutes which dealt with the magna carta, which the crown took to prevent being published until 1642, when parliament allowed it. broad-scale pamphleteering turned england into a school of political discussion. oxford university favored the established church and cambridge university was puritan. the house of commons asserted a preeminence to the house of lords for the following reasons: the estates of the members of the house of commons were three times the extent of the members' of the house of lords. bishops' estates had diminished considerably because of secularization. the members of the house of commons were elected [chosen] by the people. the house of commons drew up a petition of right in 1627, which expanded upon the principles of magna carta and sought to fix definite bounds between royal power and the power of the law. it protested the loans compelled under pain of imprisonment and stated that no tax or the like should be exacted without the common consent of parliament. it quoted previous law that "...no freeman may be taken or imprisoned, or be disseised of his freeholds or liberties, or his free customs, or be outlawed or exiled; or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land" and that "...no man of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned nor disinherited, nor put to death without being brought to answer by due process of law". it continued that "... divers of your subjects have of late been imprisoned without any cause showed; and when for their deliverance they were brought before your justices by your majesty's writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your majesty's special command, signified by the lords of your privy council, and yet were returned back to several prisons, without being charged with anything to which they might make answer according to the law." it also protested the billeting of soldiers in private houses and martial law trying soldiers and sailors. if these terms were agreed to by the king, he was to be given a good sum of money. since he needed the money, he yielded. he expected tonnage and poundage for the navy for life, as was the custom. but he got it only for one year, to be renewable yearly. the king agreed to the petition, quietly putting his narrow interpretation on it, and it was put into the statute book. in 1629 parliament distinguished between treason to the king and treason to the commonwealth. the chief justice held in 1638 that acts of parliament to take away the king's royal power in the defense of his kingdom were void; the king may command his subjects, their persons, their goods, and their money and acts of parliament make no difference. but the people refused to pay these taxes. charles thought of more ways to obtain money and disregarded his agreement to the petition of right. without the consent of parliament, charles extended ship money to all the kingdom instead of just the ports. it was used to outfit ships for the protection of the coasts. hampden refused to pay it on principle and the courts ruled against him in the case of king v. john hampden and he was sent to prison. when distraints were tried, the common people used violence to prevent them. the bailiffs were pelted with rocks when they came to distrain property. one man used his pitchfork to take back his steer being taken by the bailiff. if a distraint was successful, people would refuse to buy the distrained property of their neighbors. charles revived the right of the crown to force knighthood on the landed gentry for a fee. charles sold monopolies in such goods as soap, leather, salt, wine, coal, and linen rags although they had been abolished in the last parliament of james. this made employment uncertain for workers and prices high for the public, and put masters in danger of loss of capital. fines were levied on people for the redress of defects in their title deeds. crown forest boundaries were arbitrarily extended and landowners near crown forests were heavily fined for their encroachments on them. money was extorted from london by an illegal proclamation by which every house had to pay three years' rental to the crown to save itself from demolition. but what incensed the people more than the money issue were the changes in the established church. high churchmen, called ritualists, enforced ceremonies offensive to puritan feeling in every parish. the centrally placed communion tables were to be placed at the east end within railings and called "altars", or "mercy seats" as if for mass. they were to be ornamented with crucifixes, images, pretty trifles, books, candles and rich tapestries. bowing was to be done when approaching them. clergymen were to be called "priests" and their authority treated as divine. worship was to be done in accordance with the prescribed forms of romish breviars, rituals, and mass-books. its ritual was to have pomp and ceremony, including kneeling for communion. rings were to be used in marriages and crosses used in baptisms. churches, fonts, tables, pulpits, chalices and the like were to be consecrated, thereby putting holiness in them. churches that did not do this but used unconsecrated or "polluted" articles were closed by interdiction [a catholic censure withdrawing most sacraments and christian burial]. days, postures, meats, and vestments were to be regarded. the clergy was to wear supplices [white linen vestments flowing to the foot with lawn sleeves] and embroidered copes [vestment over the head]. a bishop wore a four-cornered cap, cope and surplice with lawn-sleeves, tippet (long, black scarf), hood, and canonical coat. churchwardens were to take oaths to inform against any who disobeyed. the law still required that all attend sunday sermons. but parishes had some control over who was their preacher, even though a minister could be assigned to a parish by the bishops without the consent of the patron of the church or parish people. by increasing the meager pay of a parish clergyman, they could choose one with a compatible theology or employ a lecturer from outside. the ritualists scolded clergymen for "gospel preaching" and suppressed puritan preaching in public meetings. preaching or printing matter concerning the controversy of free will versus predestination was forbidden. geneva bibles, which were popular among laymen, were prohibited from being imported. many were excommunicated for sitting instead of kneeling at communion. the clergy prohibited marriage if they liked by withholding their license, and they licensed marriages without banns. the ritualists encouraged certain sports to be played after church on sunday. the puritans protested vehemently to this because they wanted to strictly observe the sabbath. the puritans saw the high churchmen as wanting to return to the doctrine and customs they thought to be papist. the ritualists were absolutists in their political views and accepted the king's intervention in church matters. the ecclesiastical court of high commission enforced the edicts of the church, excommunicating those who did not conform and expelling clergymen who, for instance, did not bow at the name of jesus or wear the surplice. it was used against the puritans and imposed high fines and imprisonment for religious eccentricity and puritan preaching. charles supported the established church in this endeavor because it agreed that he had a divine right to rule. the universities and high churchmen were beginning to adopt the doctrine of free will over predestination. parliamentarian and puritan oliver cromwell and others feared this presaged a return to justification by works and the popish faith. in parliament, he spoke out against the tyranny of the bishops, whose offices he wanted abolished, and the elaborateness of church services. to avoid persecution, many puritans emigrated to virginia and new england. they were led by magistrates, country gentlemen, prominent businessmen, attorneys, and other professionals. in 1629, the massachusetts bay colony was chartered at the instigation of john winthrop as a puritan refuge. its leaders led a migration of puritans organized to include five each of armorers, bakers, blacksmiths, carpenters, shoemakers, merchants; three each of clothiers, chandlers, coopers, military officers, physicians, and tailors; two each of fishermen, herdsmen, and masons; on tanner, and one weaver. the fare was five pounds and an applicant was interviewed to make sure he was a puritan. he got 50 acres, or more for a larger family. but if he paid 50 pounds into the common stock he received 200 acres of land, plus 50 more for each dependent. maryland was founded in 1632 as a haven for catholics, but its charter precluded a government-established religion. it was granted to lord baltimore to hold in free socage and was named after charles' wife, who was catholic. catholics in england could practice their religion only in their homes and could not carry arms. as hostility grew, censorship of books and plays accelerated and the number of authorized printers was reduced in 1637 by decree of the star chamber. in 1640s effective government control of the press collapsed. then there were many pamphlets and newspapers with all variety of interpretation of the bible and all sorts of political opinion, such as on taxation; law and the liberties of the subject; religion; land and trade; and authority and property. twenty-two pamphlets were published in 1640 and 1,996 in 1642. in 1640 the canons of the church included a requirement for parsons to exclaim divine right of kings every year. the commons soon resolved that this was contrary to the fundamental laws and liberties of the realm. the short parliament of 1640 was dissolved soon because the commons demanded redress of its grievances. the long parliament of 1640-1653 requested by the house of lords was agreed to by charles because he still wanted money. in election of members to the long parliament, voters wanted to know where contenders stood on certain political issues. in this parliament, the commons ceased to agree on all issues and started to rely on majority rule. the house of commons was led by john pym, a middle class landholder with extensive commercial interests. the commons treated the king's refusal to act with them as a relinquishment of his power to parliament. when it met at the long parliament, pym expressed the grievances of the king's actions against the privileges of parliament, against religion, and against the liberties of the subjects. specifically, he decried the disregard of free speech and of freedom from prosecution afterward, and the arbitrary dissolution of parliament. secondly, he alleged popery had been encouraged and the ecclesiastical jurisdiction enlarged. thirdly, he protested the patent monopolies given to favorites to the detriment of the buying public, the imposition of ship money levies beyond the need of national defense and without the consent of parliament, the revival of the feudal practice of imposing a fine for refusal to accept a knighthood with its attendant obligations, the enlargement of the king's forests and driving out from hence tenants with lucrative holdings, extra judicial declarations of justices without hearing of counsel or argument in many criminal matters, and the abuses of the prerogative courts in defending monopolies. parliament's assertion into religious matters and foreign affairs was unprecedented, those areas having been exclusively in the power of the king. the long parliament begun in 1640 removed many of the king's ministers and forbade clergy from sitting in parliament or exercising any temporal authority. it passed measures which were not agreed to by the king. it undid the lawless acts of the king and the court decision in the case of king v. hampden. ship money was declared illegal. the new concept that the present parliament should not be dissolved but by its own consent was adopted. the star chamber and court of high commission were abolished. the oath ex officio, an oath to answer all questions, was originally meant for facts at issue, but had been extended by these courts to opinions, beliefs, and religion and had led to abuses. the star chamber had been the only court which punished infractions of the kings' edicts, so now his proclamations were unenforceable. protection against self-incrimination was given by the provision that no person be forced "to confess or accuse him or herself of crime, offense, delinquency, or misdemeanor, or any neglect... or thing whereby, or by reason whereof, he or she shall or may be liable or exposed to any censure, pain, penalty, or punishment whatsoever, as had been the practice in the star chamber and the court of high commission. these measures were also adopted: no one may be compelled to take knighthood nor undergo any fine for not so doing. the forest boundaries are returned to their former place. all subjects may now import gunpowder; they may also make and sell gunpowder and import saltpeter. the root and branch petition of 1640 to abolish episcopacy roots and branches complained about pressure on ministers by bishops on threat of dismissal not to preach about predestination, free grace, perseverance, original sin remaining after baptism, the sabbath, doctrine against universal grace, election for faith foreseen, free-will against anti-christ, nonresidents, nor human inventions in god's worship. it also complained about the great increase of idle, lewd, and dissolute, ignorant and erroneous men in the ministry who wanted only to wear a canonical coat, a surplice, and a hood, bow at the name of jesus, and be zealous of superstitious ceremonies. it also complained about the swarming of lascivious, idle, and unprofitable books, pamphlets, play-books, and ballads, such as ovid's "fits of love", "the parliament of women", barn's "poems", and parker's "ballads". further it opposed the restraint of reprinting books formerly licensed without relicensing. it protested the growth of popery and increase of priests and jesuits, the strict observance of saints' days whereby large fines were imposed on people working on them, the increase of whoredoms and adulteries because of the bishops' corrupt administration of justice and taking of bribes, and the practice of excommunicating for trivial matters such as working on a holy day or not paying a fee. it further protested the fining and imprisoning of many people; breaking up men's houses and studies; taking away men's books, letters, and writings; seizing upon their estates; removing them from their callings; and separating them from their wives, to the utter infringement of the laws and of people's liberties. it complained that these practices caused many clothiers, merchants, and others to flee to holland, thus undermining the wool industry. it finally complained of the multitude of monopolies and patents, large increase of customs, and ship-money. many londoners signed this petition. the house of commons decided to forbid bowing at the name of jesus. when the house of lords disagreed with this, the house of commons claimed that it represented all the people and didn't need the concurrence of the house of lords. the house of commons ordered that all communion tables be removed from the east end of churches, that the railings be taken away, and all candles and basins be removed from it. further, all crucifixes, images of the virgin mary, and pictures of any of the trinity were to be demolished, including those in markets and streets. further, all bowing at the name of jesus or toward the east end of the church or toward the communion table was forbidden. all dancing or other sports on sunday was forbidden. enforcement was to be done by justices of the peace and mayors. but these orders never became statutes. enforcement of the law for not coming to church was not now regularly enforced, so catholics had a respite. rebellion of irish catholics against england and english protestants broke out in ireland in 1641. parliament didn't trust the king with an army that he could use against themselves so it passed the following two measures expanding the navy and calling out the militia and naming certain persons to be lieutenants of each county. the admiral shall impress as many seamen as necessary for the defense of the realm. this includes mariners, sailors, watermen, ship carpenters, but no one over the age of 50 or masters or masters' mates. if one hides, he shall be imprisoned for three months without bail. justices of the peace shall impress as many soldiers as the king may order for war in ireland. this is despite the right of a citizen to be free from being compelled to go out of his county to be a soldier because the danger from ireland is imminent. excluded are clergymen, scholars, students, those rated at a subsidy of land of three pounds or goods of five pounds, esquires or above, the sons of such or their widows, those under eighteen or over sixty years of age, mariners, seamen, and fishermen. the penalty for disobeying is imprisonment, without bail or misprise, and a fine of ten pounds. if an offender can't pay the fine, he shall be imprisoned a year more, without bail or misprise. the right to call out the county militia had been a prerogative of the crown, so the king issued a proclamation ordering the soldiers to ignore this order and obey him. so parliament declared this proclamation void. the king accused five leaders of parliament, including pym, of trying to subvert the government of the kingdom, to deprive the king of his regal power, to alienate the affections of the people toward their king, forcing the parliament to their ends by foul aspersions, and inviting the scots to invade england. in 1642, the king entered parliament with 300 soldiers to arrest these five. they had flown, but parliament was shocked that the king had threatened the liberties of parliament with military force. the citizens of london, in their fear of popery, rose in arms against the king, who left the city. both sides raised big armies. the goal of the parliamentarians was to capture the king alive and force him to concessions. when the parliamentarians took oxford in 1648, they purged its faculty of royalists. the law real wages, which had been falling, reached their low point and the gap between the poor and others widened. there were depressions from 1629-32 and from 1636 to about 1640, which called for royal proclamations for the relief and distress, especially among the poor. the book of orders, for the relief of distress in earlier reigns, was to be reissued. the assize of beer and bread maintaining quality, prices, weights, and measures, was to be duly kept. hoarding of foodstuffs was to be punished. fish days and lent were to be observed to maintain the fishers. abstaining from suppers on fridays and on the eves of feasts was ordered in all taverns and commended to private families. city corporations were to give up their usual feasts and half the charge given to the poor. foreign ships were not to be supplied with food for long voyages. the revised book of orders also covered the regulation of beggary, the binding of apprentices, and the general relief of the poor. all magistrates were to enforce the rules and raise special rates from all parishes, the richer of these to help the poorer. from 1625 to 1627 these statutes were passed: no one shall engage in sports or any pastimes outside his own parish or bearbaiting, bullbaiting, interludes, plays or other unlawful pastimes inside his parish on sundays because such has led to quarrels and bloodshed and nonattendance at church. the fine is 3s.4d. or if the offender does not have the money or goods to sell to pay, he shall be set in the public stocks for three hours. no carrier with any horse or wagon or cart or drover with cattle may travel on sunday or else forfeit 20s. no butcher may kill or sell any victual on sunday or else forfeit 6s.8d. every innkeeper, alehousekeeper, and other victualer permitting a patron who is not an inhabitant of the area to become drunk shall forfeit 5s. or be place in the stocks for six hours. offenders convicted a second time shall be bound by two sureties to the sum of 200s. as of 1627, a parent sending a child out of the country to go to a catholic school was to forfeit 100 pounds, one half to the informer and one half to the king. the petition of right herebefore described was passed as a statute in 1627. judicial procedure the star chamber decided cases as diverse as a case of subordination of witnesses, cases of counterfeiters of farthing tokens, and cases of apothecaries compounding ill medicines. it tried to keep down the prices of foodstuffs for the benefit of the poor; it repressed extortion and false accusations, and disbarred an attorney for sharp practices; it punished defamation, fraud, riots, forgery of wills; it forbade duels. a special virtue of its position was that it could handle without fear matters in which men of social or local influence might intimidate or overawe juries or even country justices. it punished a lord who caused records to be forged, unlawfully entered lands, and seized tithes. it disciplined a nobleman for drawing a sword on a lord hunting hare. in one of its cases, sir edward bullock, a knight wanting to enclose a common of a thousand acres threatened his neighbor blackhall when he would not sell his lands and rights. the knight hired a man to break down the hedges and open a gate that had been staked up, so that his neighbor's cattle would stray. he sued his neighbor three times for trespass, lost his cases, and threatened revenge on all the witnesses who testified against him. he had the house of one pulled down. the pregnant wife and a naked child were turned out and had to lie in the streets because no one dared to take them in, even when a justice so directed. the witness, his wife, and family took refuge in an unheated outbuilding in the winter. he and his wife and one child died there. the knight had another witness cudgeled so that she was black and blue from the waist up, and could not put on her clothes for a month. the knight threatened to set fire to the house of another witness, and sent his men to pull him out of doors and keep him prisoner for some hours. the star chamber imprisoned the knight and his men. the knight was fined 1,000 pounds and the men 50 pounds each. the knight also had to pay one witness 100 pounds in reparation to the surviving children of the family whose house had been pulled down. but the power of the star chamber was abused by king charles i. for instance, one lord was accused by another of calling him a base lord. the evidence was paltry. but he was fined 8,000 pounds, one-half going to the king. a lord who was accused of converting agricultural land to pasture was fined 4,000 pounds. a person who exported fuller's earth, contrary to the king's proclamation, was pilloried and fined 2,000 pounds. a man who defaced a stained-glass window in a church was fined 500 pounds and ordered to pay for a plain glass replacement. a man who became sheriff of a county and had taken the oath which bound him to remain in the county was elected to parliament and stood in opposition to the king on many matters. he was imprisoned for many years until he made a humble submission and had to pay a heavy fine. a london importer who was alleged to have said "that the merchants are in no part of the world so screwed and wrung as in england; that in turkey they have more encouragement" was fined 2,000 pounds for seditious and slanderous words against his majesty's happy government. a scottish minister circulated a book appealing to parliament to turn out the bishops and to resist its own dissolution by the king. in it he called the bishops men of blood, anti-christian, satanical, ravens, and magpies, preying on the state. he was against kneeling at the sacrament and denounced the queen for her catholic religion. he blamed the state for the death of citizens of a certain town by famine. for as he did "scandalize his majesties sacred person, his religious, wise, and just government, the person of his royal consort the queen, the persons of the lords and peers of this realm, especially the reverend bishops", he was fined 10,000 pounds, was to be unfrocked (which was done by the court of high commission), and was whipped, pilloried, one ear nailed to the pillory and cut off, his cheek branded, and his nose slit. then he was imprisoned for life, but only served ten years, being released by a statute of the long parliament. a puritan writer pyrnne wrote a book that included a condemnation of masks and plays, and all who took part, and all who looked on as sinful, pernicious, and unlawful. it opined that nero had attended plays and deserved to be murdered. since charles had attended plays and the queen had taken part in a mask, it was inferred that pyrnne meant them harm. his indictment alleged that "he hath presumed to cast aspersions upon the king, the queen, and the commonwealth, and endeavored to infuse an opinion onto the people that it is lawful to lay violent hands upon princes that are either actors, favorers, or spectators of stage plays". the justices saw in the book an attempt to undermine authority. the chief justice called the book a most wicked, infamous, scandalous, and seditious libel. pyrnne was sentenced to be degraded by oxford and disbarred by lincoln's inn, to be fined 5,000 pounds, to be pilloried and to have his ears cut off, and then to be imprisoned for life. three men who wrote attacks on the bishops and ecclesiastical courts, such as alleging that the bishops suppression of fasts and preaching had brought the pestilence upon the people and that the bishops had dishonored god and exercised papal jurisdiction in their own names, were each sentenced to 5,000 fine, the pillory, where their ears were cut off, and to life imprisonment. one, who had been convicted for libel before, was branded on both cheeks: "s.l." for seditious libeller. others printed similar material. in vain the star chamber limited the number of london printers to twenty, and made licensing stricter. these prisoners were set free by the long parliament. charles i intimidated justices to obey him in decision-making even more than james i. charles i so abused the power of the star chamber court that it was abolished by the long parliament and with it, the involvement of the king's council in civil and criminal cases. the regular church courts punished people for heresy, nonattendance at church, sexual immorality, working on the sabbath or a holy day, non-payment of tithes, and lending money at interest. the special ecclesiastical court, the court of high commission, was composed of clerics appointed by the king and decided cases of marriage annulment, alimony, adultery, married couples living separately, cruelty of husbands to wives, and habitual drunkenness. but it also took on cases of schismatics and extended its power over them to include staid and solid puritans, who uniformly believed that salvation was the only worthy earthly aim. acting on information attained through secret channels or from visitations, it would summon the accused, who was required to give, under oath, "full, true, and perfect" answers to broad and undetailed charges made by secret informants. refusal to take the oath resulted in commitment for contempt of court. if he denied the charges and fled, the court could hold the hearing without him. many fled out of the country or went into hiding in it. if the accused went to the hearing, he could not take an attorney with him. most of the issues involved clergy refusing to use the litany, to make the sign of the cross in baptism, to wear the surplice, or to publish the book of sports, and insistence on extempore prayer and preaching. other issues were clergy who, from the pulpit, inveighed against ship-money and unjust taxes, and spoke rudely against the bishops and tyrannical princes. one case is that of samuel ward, the town preacher of a large town, heard in 1635. he neglected bowing or kneeling on coming to his seat in church and preached against the book of sports. he did not read the set prayers from the official book, but said prayers he had himself conceived. to this he replied that a parrot could be taught to repeat forms and an ape to imitate gestures. but his most serious offenses had to do with his utterances from the pulpit derogatory to the tenets and discipline of the church. he was accused of saying that he believed that congregations still had the right of election of all officers, including ministers. also, he allegedly said that in preaching on the christmas holidays he told his people "that in the following days they might do their ordinary business, intending to cross that vulgar superstitious belief, that whoever works on any of those twelve days shall be lousy". he allegedly warned his people to beware of a relapse into popery. ward was convicted of depraving the liturgy, tending toward schism, frightening the people, and encouraging the overthrow of all manner of government. he was removed from his position, deprived of his ministerial function, suspended and silenced during the king's pleasure. he was ordered to make submission and recantation both in court and in his church and to give bond for 200 pounds. when he did not do this, he was sent to prison and lay there nearly four years, and died a few months later. in another case, a mrs. traske was imprisoned for at least eleven years for keeping saturday as her sabbath. many people were excommunicated and books censored for essentially political reasons. in 1637, the king proclaimed that the common law courts could not intervene in ecclesiastical courts. the court of high commission was abolished by the long parliament. justices of the peace had general and quarter sessions, the latter of which were held four times a year with all justices of the peace attending. it was primarily a court of appeal from penal sentences. but it was also an administrative body to determine taxes and make appointments of officials and grant licenses for businesses. in 1638, in distributing a deceased person's estate, the chancery court upheld a trust designed to hold the property for an heiress so that it did not become her husband's property. at the request of parliament, the king had all justices serve during their good behavior instead of serving at the king's will, which had been the practice for ages. this increased the independence of the judiciary. the rack was used for the last time in 1640 before the long parliament met. it was used to torture a rioter before hanging. men were still pressed to death for failure to plead, pickpockets still executed for the first offense, and husband murderers still burned. chapter 16 the times: 1642-1660 for four years, there was civil war between the king, backed generally by the upper class, the established church, and most of the gentry, against the parliamentarians, backed generally by middle class yeomen, town dwellers, some of the gentry, most of the great corporations, the city of london, the ports, the seamen, and the navy. oxford university was royalist, and cambridge university was puritan in sympathy. archery was not used in the war, having become just sport by 1633. flint-lock pistols, which relied on flint striking steel to ignite the powder, as well as swords were used by horsemen in the civil war. footmen were musketeers using a match lock with a cord boiled in vinegar as the match, and dressed in leather doublets and an iron-pot headpiece; or pikemen with long wooden poles with spearheads of iron or steel and short swords, and dressed in armor. this was the last time armor was used. the parliamentarians wore orange scarves to distinguish themselves from their enemy. cromwell, who had a natural aptitude for military matters, selected for his troops, puritan zealots with a puritan code of behavior which included no drinking or swearing. he selected horsemen based on ability rather than social class. he was regarded as one of the leaders of the independents, who wanted total abolition of the monarchy and of the aristocracy. when made a leader of the new model army, cromwell dressed all his foot men in red with only the facings being regimental colors. the new model army had been assembled because there had been disagreement about policy among the members of parliament who held commissions. almost all members gave up their commissions. for their continued support, many wives and also prostitutes put on men's clothing and followed the troops. they nursed the wounded. those many wives who stayed at home pleaded and answered in court; petitioned to the house of commons, e.g. for release of debtors from prison, high taxes, lack of work, and arbitrary government; and made other public appearances. puritan and royalist newspapers printed the news at least once weekly. poet john milton pled for civil and religious freedom, freedom of social life, and freedom of the press. he stated: "give me the liberty to know, to utter, and to argue freely, according to conscience, above all liberties." the mayor and citizens of london were given authority in 1642 to fortify all highways leading to the city and levy a tax on inhabitants for this purpose. when london was deprived of coal during the war, trees and flowers again flourished there. officers and seamen in navy ships were authorized in 1642 to take one-third of all prize goods captured, the other two-thirds going to the state. parliament approved certain persons to set forth ships at their own expense to defend the realm in 1643. they were allowed to keep any ships, goods, ammunition, or moneys they seized. saltpeter men were appointed by parliament in 1643 and later times to search and dig for saltpeter in pigeon houses, stables, and outhouses, but not dwelling, shops, or milkhouses. they had to repair any damage done to the contentment of the owners. complaints were made to parliament that there were scandalous and ill-affected fomenters of the civil war and disobeyers of the ordinaries of parliament and deserters of their ordinary places of residence. these complaints were made by members of the university of cambridge, students, clergy in surrounding counties, and schoolmasters. so a committee was established in 1643 to investigate and sequester their lands and goods, excepting onefifth of the estate for the wife and children. when charles was captured in 1646, the episcopacy of the bishops was abolished. when parliament was about to reinstate charles as king with weakened powers and establish a presbyterian state church, the soldiers, who were religious independents and who still had not been fully paid (the infantry pay was 18 weeks in arrears and the cavalry 43 weeks) despite plans to disband them, spontaneously took the king by force. they demanded liberty of conscience to practice their own religion and their pay. cromwell sided with the army and then became leader of the house of commons. charles dissembled in his negotiations with the army generals. he felt freed from his promises as soon as the pressure was removed. the army could not forgive charles' duplicity and deceitfulness and insisted upon his death as the only way to bring peace. cromwell gave up hope on negotiations with charles when he intercepted a letter by charles to his queen decreeing the final doom of the army adherents in favor of the scottish presbyterians. during protracted negotiations over months between the army and parliament over a new constitution, a renewed support for the king, which was inspired by him, necessitated a second civil war to put down this revolt and subdue its scot supporters. eventually the army took control of parliament by force, only allowing the few members who agreed with them on the trial of the king into parliamentary meetings. so charles was tried in 1649, found guilty of "an unlimited and tyrannical power to rule according to his will, and to overthrow the rights and liberties of the people ... which by the fundamental constitutions of this kingdom were reserved on the peoples' behalf in the right and power of frequent and successive parliaments or national meetings in council", and maintaining a war against his subjects, which amounted to treason. to prevent his adherents from trying to reinstate him, he was condemned to death and beheaded in january 1649. to pay for the civil war, an assessment tax on the yearly value of rents, annuities, and offices was often levied. the main burden of this tax fell on the gentry rather than the merchants and smaller men of property, as previous taxes had. an excise tax, a tax on consumption, was begun on ale and beer and then extended to meat, salt, starch, soap, and paper. it was gradually extended to many goods. the excise taxes were paid, as was the customs tax, by manufacturers on goods made in england and by foreign manufacturers on goods at the ports. parishes had to give maintenance to maimed soldiers and provision for the livelihood to the wives and children of killed soldiers. masters of apprentices who became soldiers had to take them back as apprentices without loss for their absence in defense of the commonwealth. masters who received considerable loss by the absence of their apprentices received reasonable satisfaction from the public stock. from 1640-60, royalists were purged from oxford and a group of baconians moved into the university behind parliamentary armies. at the two universities, books were no longer chained to the bookcases. the universities were freed from taxation. after the civil wars, cromwell led the country. he was a military, political, and religious leader. he had become a puritan zealot after a youth of gambling, drinking, debauchery, and rioting. he believed that military success was a reflection of divine favor and he regarded himself as one the few elect preordained for salvation. those in power in the new commonwealth tended to explain their regime in terms of popular consent, and the takeover from charles i as due to his breaking of a contract with the people. most people dressed in puritan fashion. a puritan's favorite readings were the old testament, epistles of st. paul, and writings of john calvin. wealth and prosperity steadily increased in spite of the civil wars. during cromwell's tenure, there was a marked revival of economic prosperity. by the mid-1600s, landlords had been able to shorten their leases so that a lease of twenty-one years was the predominant form of landholding. patent protection was given in 1642 for seven years to the inventors of a device for salvaging ships' goods and cannons from the seas. with it they could convert to their own use one half of the items retrieved, the other half going to the navy and parliament. patent protection was given in 1650 to george manby on his new invention for boiling liquors and making salt with less coal and wood and iron, lead, and copper for fourteen years. patent protection was given in 1651 for fourteen years to jeromy buck for melting iron, lead, tin, copper, brass, and other metals with coal without burning charcoal. the merchant adventurers were incorporated again in 1643 to have a monopoly. it was required to admit into membership for 100 pounds anyone free of london and bred as a merchant, and for 50 pounds any non-inhabitant of london. the penalty for trading for one who was not free of the corporation was forfeiture of his goods. in 1648, the house of commons abolished the monarchy and in 1649 the house of lords. also in 1649 it declared that england "should thenceforth be governed as a commonwealth and free state by the supreme authority of this nation, the representatives of the people in parliament." it made a new constitution. john milton defended the commonwealth as superior to the monarchy because it could not deteriorate into tyranny in his books: "first defense of the people of england" in 1651, and "second defense" in 1654. he lauded cromwell as great in war and great in peace, and exemplifying the principle that "nature appoints that wise men should govern fools". thomas hobbes, the son of a clergyman, and tutor to students, wrote "leviathan" in 1651 on his theory of sovereignty. hobbes thought that states are formed as the only alternative to anarchy, barbarism, and war, so that supremacy and unity of a sovereign power is essential to a civilized life and the protection of the citizenry. a sovereign may be a man or body of men as long as his or its authority is generally recognized. there must be a social contract among the citizenry to obey a certain sovereign. to avoid religious conflict, there must be a complete subordination of the church to the state and the religion of a state must be dependent upon its secular sovereign. hobbes thought that knowledge of the world came through experience and not reason alone. only matter exists, and everything that happens can be predicted in accordance with exact, scientific laws. he regarded human societies as purely mechanical systems set in motion by human desires. he saw self interest as the mainspring of moral law. conflicting self interests transformed into a lawful system of agreements. hobbes opined that all power really originated in the people and that the end of all power was for the people's good. on the other hand, james harrington, who wrote "the commonwealth of oceana" in 1656, opined that a stable society depended on a direct relationship between the distribution of property and political power; no one with property worth more than 2,000 pounds should be allowed to acquire more and property should be divided among children. a senate of mature property owners were to make and debate the laws while an assembly elected by universal suffrage was to vote on them because "a popular assembly without a senate cannot be wise and a senate without a popular assembly will not be honest". a third of the senate would turn over every year. john milton defended the execution of the king in "the tenure of kings and magistrates" in which he maintained that the people may "as often as they shall judge it for the best either to choose him or reject him or depose him, though no tyrant, merely by the liberty and right of freeborn men to be governed as seems to the best". he also wrote in favor of liberty of the press. ordinary speech found its way into prose writing. lands of more than 700 royalists, including church lands, were confiscated and sold or leased by county committees. many royalists put their lands into trusts or turned them over to relatives or sold them outright to prevent confiscation. it was an upheaval comparable to the dissolution of the monasteries. also, specified papists who had taken up arms against the realm lost their lands, goods, money, rents, and two-thirds of their personal estates. but allowance was made for the maintenance of their wives and children. the book of common prayer was abolished because of its burdensome ceremonies. it was replaced by a directory for public worship. according to this, the sunday service was to include reading of the scriptures, prayer, and a sermon, ordinarily on some text of scripture which would be explained with reasons therefore and applied to peoples' lives so they could see if they had sinned or not. the ending of episcopal patronage gave some parishes the right to elect their own ministers. all festivals and holy days were abolished, e.g. christmas, easter, whitsuntide. instead, scholars, apprentices, and servants were to have recreation and stores were to be closed every second tuesday of the month. the usual merry-making, music, dancing, and sports after the sunday service were discontinued. a day for fasting: the last wednesday of every month, was declared by statute. this day was to be "kept with the more solemn humiliation, because it may call to remembrance our sins, and the sins of our forefathers, who have turned this feast, pretending the memory of christ into an extreme forgetfulness of him, by giving liberty to carnal and sensual delights, being contrary to the life which christ himself led here upon earth, ...". this statute lasted for only five years from 1644 because observance of it was not consistent throughout the country. educational opportunities such as in grammar schools were more widespread and stronger than ever before or since until the 1800s. about 78% of men in london were literate, and 30% of men nationwide. about half the women in london were literate by 1700. in 1645, the marshalls of the admiralty and five major ports were ordered to search all ships for stolen children since it had been a problem in london. the elderships of the church were given power in 1645 to suspend from the sacrament of the lord's supper all ignorant and scandalous persons. ignorance was lack of knowledge that there is a god and this is the one true god we worship, that this god is one, yet three persons: father, son, and holy ghost, that god created man in his own image, that all have sinned and therefore shall die, that there is one mediator between god and man: jesus christ, who died on the cross to save men from their sins, that he rose from the dead, ascended into heaven, sits at the right hand of god, and intercedes for us, that christ and his benefits are applied only by faith, that the souls of the faithful live with christ in blessedness, that non-believers and non-repenters shall perish eternally, that the sacraments are baptism and communion, and that there is a judgment day on which the righteous will be given life eternal and the wicked shall receive everlasting punishment. scandalous persons are those who blasphemously speak or write anything of god, his holy work or the sacraments; an incestuous person; an adulterer; a fornicator; a drunkard; a profane swearer or cursor; a murderer; a worshipper of images, crosses, crucifixes, relics, saints, or angels; makers of images of the trinity; one who professes not to be in charity with his neighbor; any challenging another to fight or accepting such challenge; on the lord's day, dancing, dicing, cards, masking, wake, shooting, bowling, football, wrestling, plays, interludes, fencing, bullbaiting, bearbaiting, hawking, hunting, coursing [hunting with hounds], fishing, fowling, selling wares, travel without reasonable cause; a brothel-house keeper; one who solicits the chastity of another; one who marries a papist or consents to the marriage of his child to a papist; own who goes for advice to a witch, wizard, or fortune-teller; one who assaults his parents, or any magistrate, minister, or elder in the execution of his office; and one attainted of barratry [purchase or sale of office or preferment], forgery, extortion, or bribery. if such a person persists, he shall be excommunicated. cromwell did not disapprove of activities prohibited because of the recreation they provided, but thought that they had become too central to people's lives. he did not close the taverns or ale houses. in 1653 it was required that public preachers be approved by a commission nominated by the lord protector and parliament because there had been too many "weak, scandalous, popish, and illaffected" ones. in 1654 named persons were ejected as scandalous, ignorant and insufficient ministers and schoolmasters. because the poorer parishes of london were having problems supporting their poor, a corporation for the poor of london was established in 1647 with authority to erect workhouses and houses of correction. imprisoned debtors who had less than five pounds and less that five pounds worth of trade tools and clothing and bedding for his family were ordered released in 1649. wardship was abolished. military tenures were abolished. feudal tenures were converted into freehold in 1646. in 1653 those living in crown forest land were given free socage in that land. the game laws were not enforced, so people could eat deer. enclosures were increasing and parliament was disinclined to protect copyholders against enclosures, favoring those with rights of ownership. enclosure was no longer deterred especially after abolition of the star chamber. the legal device of "strict settlement" evolved to prevent heirs from breaking up estates enabled families to concentrate land and capital into large units. the oldest son inherited the land and the younger sons now received money. clover seed was sold in london by 1650. it revolutionized the cultivation of barren land. england began to export instead of import grain. but vagrancy increased from people dispossessed of land. and the village artisan, when deprived of his field and of his rights of common, could not continue to work at home, but had to accept the wages offered to him in an employer's workshop. employers and entrepreneurs were now free from control by the crown. there were no more attempts to supervise quality of manufactures or to fix prices or regulate wages. there was greater freedom established in relations between employers and workers. the government no longer tried to compel employers to keep employees in times of economic slump. the requirement of seven year apprenticeships and being the son of a freeholder to be an apprentice were not enforced. the economy was still volatile due ostensibly to variable harvests, amount of gold and money in circulation, and balances of trade, and to periods of plague. wages rose steadily. the rise in prices ended about 1650, and prices remained stable until about 1775. there was more mobility of people. taxation became regular and it was controlled by representatives of the taxpayers. population growth gradually stabilized. capitalism was coming into being. for instance, the clothier was now a manufacturer. he had become a contractor, taking wool to the specialist spinner, the yarn to the specialist weaver, the rough cloth to be washed and stretched, and finally to the dyer. this cloth was sold at retail by the drapers. tin on the surface was exhausted, so capital was used to drive deep shafts in tin mines. no longer did a single man with a single ship sail around until he found a market, but companies trading overseas had their ships, wharves, and depots furnished by men's savings put into a common stock. the first major capitalist industries were coal mining, iron mining, and foreign trade because they all needed large investments, and thus joint-stock company organization. cromwell reconstituted the east india company on a wider and more permanent basis. he gave it a new charter in 1657 which included authority to make stock permanent, thus ensuring a continuity of capital. this solved the problem of the competition of overlapping voyages which still occurred despite their terms of several years. the company became one of the first permanent joint-stock companies. now the stock was never wound up. the company had permanent capital which could grow. the absence of competition among voyages made the company stronger in the face of a common enemy, such as a rival trading country or indian groups. the charter also authorized the company to fortify and colonize any of its establishments and to transport to them settlers, stores, and ammunition. later in 1657, the company threw open the freedom of the company to the public for a nominal sum of five pounds. now the merchant adventurers and private traders could participate. it provided that dividends were to be paid only in cash and not in kind (goods). it also provided for appraisals of the company's property to be made every three years, so any shareholders could redeem their shares proportionately. his shares would then be resold. people began to buy and sell their shares among each other. the company made the minimum subscription 100 pounds. each person holding 500 pounds worth of shares had one vote. holding 1,000 pounds worth of shares qualified one for election to the committee of twenty-four. the seats of the members of this committee and of the governor and deputy governor could no longer be permanent, but had limited and staggered terms. the continuity of capital took the place of the permanence of the governing body in providing stability. there was a regular scale of salaries for employees, and rules of conduct such as the one disallowing any clerk of the india house from going to play houses, dancing schools, or taverns. the company established almshouses for its widows and orphans. in 1657 the muscovy company, renewed its charter for trade in russia and established a new general stock. if a man bought a share, he bought freedom of the company. an annual dividend was declared from the annual profits. commercial men regularly kept accounts with bankers. merchants used division to apportion profits or losses to the parties whose capital was involved. simple and compound interest were used. the concept of contract became a familiar one. regular private bankers of london emerged from the goldsmiths from 1640 to 1675. they issued bank notes and paid checks. cromwell increased trade by seizing territories, establishing colonies, and warring with competitors for master of the seas and trade. in 1649 it was provided that no one who paid his assessment for soldiers' pay would have to quarter any of them. authority was given in 1649 to impress seamen: mariners, sailors, watermen, surgeons, gunners, ship carpenters, caukers, coopers, whoymen, and carmen for carriage of victuals. english ships were embellished with decoration. their sail area was increased by triangular fore and aft sails. the navy increased from 39 to 80 vessels. after serving in foreign wars, ex-soldiers were allowed in 1654 to practice any trade without serving a seven year apprenticeship. colonies new hampshire and maine were established in 1635, connecticut in 1636, and rhode island in 1638, as offshoots from other colonies. in 1649 a corporation was established to teach the gospel of jesus christ in new england to indians. about 1650, steel was hardened by repeated quenchings and temperings when the steel had reached certain colors. brass was made from copper and zinc alloyed together. there were power-driven rolls for the coinage from 1657. strips of silver were passed between engraved rolls. then coins were punched out and their edges serrated. in the 1650s, huygens made the first pendulum that worked practically in a mechanical clock. this new clock increased the accuracy of time-keeping tenfold. he also introduced the concept of mathematical expectation into probability theory. there was a thermometer which used liquid such as water or alcohol in a glass tube instead of air. dutchman stevinus showed that the pressure at the bottom of a column of liquid is proportional to the height of the column, and not to its bulk, about 1634. he also studied oblique forces, and the balancing of such that could bring about "stable equilibrium". evangelista torricelli, an italian student of galileo, discovered in 1643 that any fluid will be supported at a definite height, according to its relative weight, as compared with air. he realized that a mercury column, 30 inches in height, in a long glass tube inverted in a cup of mercury, was being supported by air pressure exerted on the mercury in the cup. when he observed that this height changed with the weather, he had invented the mercury barometer. in his work, he created and used vacuums. blaise pascal, a french mathematician, physicist, and religious philosopher, was a child prodigy. at the age of 12, he proved euclid's 32nd theorem that the sum of the angles of a triangle is equal to two right angles. before age 16, he wrote a book on conic sections. he is famous for his theorem that a hexagon inscribed in a conic section has the property that the three meeting points of the opposed sides are always in a straight line. he constructed a calculator, which could handle nine-digit numbers, in 1644 to assist his father, also a gifted mathematician, in tax computations he did as a local government official. he had torricelli's mercury barometer carried up a mountain and found that the height of the column dropped as altitude increased, and thus that air pressure decreased with altitude. this showed that the attribution of these effects to nature's abhorrence of a vacuum were due instead solely to the weight and pressure of air. he determined that the height to which the mercury rose was the same regardless of the shape of the vessel containing it. around 1646, he did experiments with double vacuums and on the results formulated his principle that pressure applied to a confined liquid is transmitted undiminished through the liquid in all directions regardless of the area to which the pressure is applied. around 1653, he laid the foundations for the theory of probabilities after being asked by a gambling friend why, in playing dice, some frequencies came up more often than others. he developed a means of calculating probabilities with his "pascal's triangle" of coefficients of (a+b) raised to the nth power. each row represents the coefficients of a power one greater than the power of the previous row. each number is the sum of the nearest two numbers in the row above it. he and lawyer and mathematician pierre fermat invented the theory of probabilities. fermat also proved that the law for refraction (bending) of light results from light's following the path that takes the shortest time. he founded number theory, the study of properties of whole numbers, in 1640. fermat formulated the notion of a line tangent to a curve and started the development of differential calculus, in which a rate of change is expressed as a function of time in equation form and also as a tangent to the curve associated with that equation. this work helped lay the foundation for the mathematics field of analysis. he and german gottfried leibniz formulated the principle that an equation with two unknown quantities can represent a curve. leibnitz believed that man's mind can arrive at truths about entities by pure thought. jean ray from france concluded from his experiments that every piece of material has a given weight, including air and fire. otto von guericke from germany discovered that, in a vacuum, sound does not travel, fire is extinguished, and animals stop breathing. at a time when mathematics was only a business of traders, merchants, seamen, carpenters, and surveyors, mathematician john wallis, the son of a minister, studied sections of cones [circles, ellipses, parabola, and hyperbolas] as curves of the second algebraic degree, i.e. with an exponent of two, i.e. y = (a (x squared)) + b. he also worked with negative and fractional exponents. around 1655 he invented the infinite arithmetic and introduced the symbol for infinity. he determined that the area under any curve defined by the equation y = (x to the nth power), was x to the (n+1)th power divided by n+1. he introduced the concept of the limit of a string of numbers. he wrote a treatise on algebra which was historical as well as practical. he also decoded enemy cyphers for the sovereign. some english gentlemen interested in the new scientific methods originated by galileo had meetings beginning about 1645 to discuss scientific topics. one group met at gresham college and was headed by wallis. another group was led by robert boyle, a philosopher, physicist, and chemist. they wrote in english instead of latin. these meetings later gave rise to the royal society for science. since the puritans forbade music in churches, but enjoyed it in domestic circumstances, much secular music was composed, published, and played. there were many musical clubs. the violin became very popular. solo songs were much sung. the first english opera: "the siege of rhodes" was written and performed with women on stage. writers of the time included john milton, political philosopher james harrington, poet edmund waller, thomas fuller, poet abraham cowley, and biographer issak walton. john aubrey wrote anecdotes about famous men. jeremy taylor, chaplain to charles i, wrote on theology. people still read french romances translated into english. dancing was still popular. coffee houses came into prominence as places of social discourse. the first coffee house was established in london in 1652; ten years later, there were 82 coffee houses in the city. there were elegant pleasure gardens, with a fee for access. they were used for promenades and picnics. ladies and their gallants rendezvoused there. cromwell introduced the habit of port drinking to england. in 1657, one general post offices was established with one postmaster general for all of england. no other person could have the horsing of the through-posts. it cost 2d. for a letter to or from 80 miles of london and 3d. for one outside 80 miles of london. the society of friends was founded by the son of a weaver. they greeted everyone as "friend" and did not bow; remove their hat, as was the custom when before the king or an earl; or otherwise show any reverence to anyone. from 1650, they were called quakers because they trembled when religiously stirred. they reverted to the ancient "thou" and "thee" appellations. their dress was particularly simple, with no buttons, lace, ruffles, or embroidery. they hated ritual so much that they rejected baptism and communion. they did not observe the sabbath as a special day different from other days. they derided the holiness of churches. no clergy were admitted into their sect. when they met for divine worship, each rose to deliver extemporaneous inspirations of the holy ghost. women were admitted to teach the brethren and were considered proper vehicles to convey the dictates of the spirit. quakers believed that every man, in his own life, could be fully victorious over sin. they denied any clerical authority and all texts. they believed in the separation of church and state. they refused to swear to any oath, e.g. in court, or to participate in war. they refused to take off their hats to anyone but god. it was their practice to turn the other cheek when one cheek had been struck. if asked for his cloak, a quaker would give it. he never asked more for his wares than the precise sum which he was determined to accept. the quakers encouraged widows and widowers to provide for children from a first spouse when remarrying. they carefully selected masters and mistresses who wanted to take on child apprentices for their suitability for such responsibility. the education of quaker women did not decline, as it did for other women. from the fervor of their zeal, the quakers broke into churches, disturbed public worship, and harassed the clergyman and audience with railing and reproaches. when brought before a magistrate, they show no reverence but treated him as an equal. sometimes they were thrown into mad house or prisons and sometimes whipped or pilloried. they endured stoically under this suffering. mary fisher from yorkshire introduced quakerism to colonial new england. in 1653 there were separation agreements between spouses as to property, e.g. support and maintenance. cromwell had bad experiences with parliaments. the rump parliament was a remnant of the long parliament. the army and then cromwell, although a member, came to believe that its members were selfinterested, preoccupied with perpetuating themselves in seats of power, and corrupt. they thought that their own hopes of reform in the law, in the church, and in public finances were being deliberately frustrated. cromwell came to doubt that it would ever give the people adequate government and protection. he started to believe that one man as chief executive could do this better. cromwell dismissed the rump parliament in 1653. a new constitution created a puritan "parliament of saints". these men were nominated in various ways, such as by church parishes, and selected by cromwell. this one-house parliament of saints in 1653 made cromwell lord protector for life with executive power of the state, with responsibility for making peace and establishing order after a decade of civil strife and political chaos. he was to administer the government and be the chief magistrate. it also provided for triennial parliaments consisting of one house, and religious freedom for all except roman catholics and adherents of the formerly established church of england. cromwell did not tolerate the ritual of the formerly established english church nor allow any of its adherents to have any office under him. his was a purely puritan government. he did not sell offices. the parliament of saints challenged many vested interests in property such as sales of delinquents' and papists' lands. it clashed severely over the continuation of tithes to the church. it became disorderly when some declared the parliament dissolved and left. others remained in their seats. to avoid a parliamentary crisis, cromwell had soldiers close the parliament of saints and lock its doors. the people supported this action because they were dissatisfied with the state of public affairs. the next parliament that was tried was elected on a new constitutional basis of men with 200 pounds, but these men voted to make parliament sovereign without a chief executive, thereby abolishing the protectorate. cromwell was distressed that this parliament had also voted themselves to be the sole determinors of atheism and blasphemy instead of advancing liberty of religious conscience and religious toleration as cromwell had advocated. he dissolved this parliament, declaring that it was not acting for the public good. a last parliament was also dissolved by cromwell for tending to loosen the bonds of government and thereby threatening the peace of the nation. cromwell had first ruled as a democratic leader who did not believe in force, but preferred to persuade with reason. he initially believed that people would do the right thing according to their consciences, but was disillusioned and then became autocratic. he came to rule as a military dictator. payment of taxes was enforced by distraint. after 1654, he issued about 100 proclamations covering public amusements, roads, finances, the condition of prisons, the imprisonment of debtors, banning of dueling and cockfighting, law reform, control of religion and education, and reorganization of the army. the singing of ballads was banned. the court of chancery was reformed by proclamation. the established church was reformed and the power to interfere with different faiths was denied to it. each parish could choose its form of service, whether presbyterian, congregational, baptist, or any other seen as fundamental by the puritans. no one was compelled to attend any particular church or to accept the discipline of any particular minister. but the book of common prayer was forbidden. there was freedom of worship for presbyterians, independents, baptists, quakers, catholics, and jews who had secretly migrated to england to avoid persecution on the continent, but not prelatists , who favored government of the church by bishops). in 1655, cromwell placed major generals in charge of eleven newlyestablished provinces. as their governors, they had authority to levy troops, exact taxes imposed by the protector, disarm royalists and catholics, examine into the conduct of the clergy and schoolmasters, arrest dangerous and suspicious persons, prevent unlawful assemblies, and to enforce the existing laws against immorality and blasphemy. the only appeal was to the protector. since they were puritans, they ordered public ale houses to close as dusk, banned idlers, minstrels, and actors, forbade exercising of horses on sunday and the holding of markets on saturday as well as sunday, censored the press, and proscribed newspapers. horse races, which meetings were used for seditious purposes, were closed. theaters were closed. dancing was discontinued. organs and choirs in churches were prohibited. court masks continued because they provided soothing music. after a year, cromwell withdrew the major-generals. from this time, men of property hated the idea of a standing army. in 1657, the officers of a new parliament modified the constitution and cromwell approved it. it was to secure liberties of the people as they never before had. under the modified constitution, there were again two houses. the commons regained its old right of exclusively deciding on the qualification of its members. parliamentary restrictions were imposed on the choice of members of the council, officers of state, and officers of the army. a fixed revenue was voted to the protector. no moneys were to be raised except by consent of parliament. liberty of worship was guaranteed to all except papists; prelatists; socinians, who denied the divinity of jesus; for those who denied the inspiration of the scriptures. liberty of conscience was secured for all. in 1658, cromwell tried another parliament, but dissolved it because it wrangled without resolution. there was continual problem with catholics. mayors, justices and capital burgesses of towns where papists or others had caused rebellion and insurrection and plundered, robbed, pillaged, murdered and raped, were given the power in 1642 to call, assemble, train, and arm soldiers for defense. the committee of the militia of london was given authority in 1647 to search all houses and places for papists and to search for and seize any arms, ammunition, and war materials in custody of such persons. in 1648, all papists and soldiers of fortune who had borne arms against parliament were ordered to depart from within twenty miles of london and westminster or be imprisoned as traitors. in 1657 convicted papists and people marrying convicted papists were required to take an oath renouncing the pope and catholic church or lose two-thirds of their lands and estate, retaining their house on the remaining one-third. if one went to mass in an ambassador's house, the fine was 100 pounds and imprisonment for six months, one half going to the informer. in 1659 all householders in london and westminster had to give a list of persons lodging in their house, and the horses and arms there. but the laws against catholics practicing their religion were not rigorously enforced, nor were those against adherents of the formerly established church of england. after cromwell died, the people demanded the return of a genuine and free parliament. the old constitution was restored and a new house of commons was elected. it called charles ii to return to be king if he promised religious freedom and backpay to the army, which had not recently been paid. when cromwell's puritan soldiers were disbanded, they did not drift into thievery as royalists soldiers had before, but took up honest work such as baker, mason, brewer, baker, or haberdasher. puritanism now made itself felt not by the sword, but in literature and politics. it affected the character of the english, who tend to be stoics, and imbued capitalists with a hard-working attitude. the law after the civil wars, the law against enclosure was not enforced. what was passed in parliament in cromwell's time were called statutes, but after cromwell's time, these statutes were not recognized as legitimate. "whereas public sports do not well agree with public calamities, not public stage-plays with the seasons of humiliation, this being an exercise of sad and pious solemnity, and the other being spectacles of pleasure, too commonly expressing lascivious mirth and levity ... public stage plays shall cease, and be forborne instead of which are recommended to the people of this land the profitable and seasonable considerations of repentance, reconciliation, and peace with god, ..." no book or pamphlet may be printed, bound, stitched, or sold or imported unless licensed and entered into the register book of the company of stationers. officials of this company and of parliament may search all places which they shall think meet for all unlicensed printing presses and all suspected printing houses, warehouses, and shops and other places for unlicensed books and pamphlets and papers and seize them and apprehend all authors, printers, and other involved people and bring them before parliament or the committee on examinations for punishment. justices of the peace and other officers may order doors and locks broken for this purpose. the fine is ten pounds for authors, five pounds for printers, two pounds for booksellers, and one pound for buyers who conceal a book bought. one half of each fine shall go to the person who discovers and prosecutes the offender, and the other half shall go to the poor. this law suppressed royalist newspapers but was enforced only with great difficulty. all shall observe sunday and days of thanksgiving in their "duties of piety and true religion publicly and privately" and none may sell wares or goods, including fruit or herbs upon pain of forfeiture of such. none may, without reasonable cause, travel, carry burdens, or do any worldly labors or work whatsoever or pay a fine of 10s. this work shall include grinding grain, fulling in mills, burning turf or earth, gathering taxes, melting wax for candles, brewing, baking, butchering cattle, tailors fitting or carrying clothes, barbers trimming hair, being present at fairs or markets, or washing, whiting, or drying clothes. nor may any one maintain or be present at wrestlings, shooting, bowling, ringing of bells for pleasure or pastime, masks, wake, church-ale, dancing, games, sport or, for those over 14, forfeit 5s., and for those having care or education of a child under 14, 12d. maypoles, a "heathenish vanity, generally abused to superstition and wickedness", shall be taken down by officers or else forfeit 5s. per week. if any offender can't pay his fine, he shall be put in the stocks for three hours. however meat maybe dressed in private families, and victual sold in inns and victualing houses in a moderate way, and milk sold before 9a.m. or after 4p.m. persons of the trinity, angels, or saints shall be demolished. altar and communion tables must not be raised but leveled. there may be no copes, surplices, superstitious vestments, or holy water fonts. there may be no crosses, crucifixes, pictures of the trinity, angels or saints on plates. all organs must be taken away. the fine for using the book of common prayer is five pounds for the first offense, ten pounds for the second offense, and one year imprisonment without bail for the third offense. the penalty for writing or preaching against the directory for public worship is five to fifty pounds. blasphemies and heresies such as teaching or writing or printing that there is no god, that god is not almighty, that jesus was not divine, that the resurrection of jesus did not occur, that the bible is not the word of god, or that there is no judgment day after death, are felony without benefit of clergy. if such an offender recants, he shall stay in gaol until he obtains two sureties. if he offends again after recantation, it is felony without benefit of clergy. in 1650 adultery was declared to be a felony, except for a wife whose husband had been beyond the seas for three years or had been reputed to be dead. incest was also declared to be a felony. it was defined as marrying or having carnal knowledge of one's grandparent, parent, sibling, mother's brother or sister, father's wife, mother's husband, son's wife, daughter's husband, wife's mother or daughter, or husband's father or son. fornication was given a punishment of three months imprisonment and until security was obtained for one year for good behavior. it was defined as carnal knowledge of a virgin, unmarried woman, or widow. a common bawd or one keeping a brothel or bawdy house was to be whipped, set in the pillory, marked in the forehead by a hot iron with the letter: b, and then imprisoned for three years without bail and until there were sureties for good behavior for life. the second offense was felony without benefit of clergy. there was to be no corruption of the blood. however, juries were reluctant to convict for adultery and incest. there shall be no profane swearing or cursing of forfeit by a lord 30s., a baronet or knight 20s., an esquire 10s., a gentleman 6s.8d., and all others 3s.4d. there is a double fine for the second offense. for the tenth offense, the offender shall be bound by sureties for good behavior for three years. a person equating himself or another with god or not believing in god shall be imprisoned for six months without bail. for the second offense, he shall be banished from the nation. no longer shall people be punished for nonattendance at church on sunday or days of thanksgiving, but may be at some other place of prayer, preaching, reading, or the scriptures. hawkers and ballad singers have been libelous, so are to be whipped as common rogues and then dismissed. also, their ballads and pamphlets are to be confiscated. vagrant, idle, loose, dissolute and disorderly persons and fiddlers in inns, alehouses, and taverns are to be punished as rogues, vagabonds, and sturdy beggars, that is, whipped. in 1649, treason against parliament was defined as writing, printing, or declaring that the government is tyrannical, usurped, or unlawful; or that parliament is not the supreme authority of the nation; or plot, contrive, or endeavor to stir up or raise force against the government. attainder for such would not work corruption of the blood. treason to the protector was defined the same as it was to the king. army deserters are to be corporally punished or executed. fellable wood and underwood, but no timber trees, may be cut within 60 miles of london because fuel is needed, especially by the poor. this will be supervised by overseers appointed by parliament. no one may import foreign hats or hatbands to relieve that industry in england. as of 1656, certain food could not be exported when the prices of such exceeded a stated amount. for instance, 5 pounds for a 36 gallon barrel of beef, 6d. for a pound of bacon, 4 pounds and 10s. for a 224 gallon barrel of butter, and 24s. for 64 pounds of rye, pease, or beans. the customs for such items was more for foreigners than for natives, for instance 3s. for natives and 5s. for foreigners for a barrel of beef. butter for sale must not be corrupt and be properly weighed. one must obtain a license to buy wheat or other grain and put it to sale in meal or flour or else forfeit three times the value. all books of the law, writs, pleadings, and patents shall be in english or else forfeit 20 pounds. no deer may be killed or else forfeit 15 pounds, half to the informer and half to the poor. interest may not exceed 6 pounds for a loan of 100 pounds yearly as of 1651. no goods are to be imported from america, asia, or africa except in english ships or else forfeit all goods and the ship, one half of which goes to the one who seizes the goods and prosecutes. none may be imported from europe except in english ships or ships from the country of origin of the goods. no salt fish may be imported or exported but in english vessels. there is a 10 pound reward for discovery of highwaymen and burglars or persons who break and enter into houses and there use violence. no cart or wagon or carriage on the road may be drawn by more than five horses or six oxen and a horse except for military vehicles. notice of intended marriages shall be published once a week for three weeks in a public meeting place called church or a public market place next to church. exceptions to the marriage shall be noted by the register and considered by the justice of the peace before the marriage is performed. the words used shall be: "...promise to be unto thee a loving and faithful husband..." and "promise to be unto thee a loving, faithful, and obedient wife...". there shall be no cock-fighting because it disturbs the peace and usually is accompanied by gaming, drinking, swearing, and quarreling. anyone challenging or accepting a challenge to duel shall be imprisoned for six months without bail, and must acquire two sureties for a year. anyone fighting a duel in which death ensues, shall be banished for life. horse races were forbidden in 1654 for six months to discourage mischievous plots and designs by enemies of the state. the penalty was forfeiting the horse. attendees were to be brought to justice. as of 1657, a house or building built within ten miles of the walls of the city of london not having at least four acres had to pay a fine of one year's rent. all houses within london or westminster or the suburbs must be brick or stone, and built straight up without protruding into the street or else forfeit 100 pounds. as of 1657 persons living extravagantly without visible estate or calling may be made by justices of the peace to acquire sureties for good behavior or go to gaol. they would also be sent to the house of correction to work for three months for the first offense and for a time specified by the justice of the peace for the second offense. anyone winning at betting or playing at cards, dice, tennis, and horse races shall forfeit double his winnings. excluded from pardon were buggery with man [sodomy] or animal [bestiality], carnal ravishment of women, and bigamy. husbands were responsible for their wives' oaths and fathers for their daughters'. drunkenness was much punished. judicial procedure the protector is the supreme magistrate of the commonwealth, with power to pardon all crimes, except murder and treason. parliament was no longer a court. use of the torture was proscribed in 1649. in 1652, the justices were given a salary of 1,000 pounds and forbidden to take fees or rewards. they also got tenure, thus freeing them from government pressure. now civil justice was honestly dispensed and justices were learned and honest. the jurisdiction of admiralty court was defined to include: ships and vessels with tackle, apparel and furniture thereof; repairing, victualing, and furnishing provisions of ships and vessels for sea; all cases of bottomry [ship-owner indemnified if the vessel were lost, but paid over a substantial share of the profits if it reached its destination safely], contracts beyond the seas concerning shipping or navigation; charter, parties, contracts for freight; bills of lading; mariners wages; damage of goods on board ships; and damage by one ship to another including by anchors or want of laying buoys. it did not include contracts between merchants. military tenure was abolished in 1660. chapter 17 the times: 1660-1702 the monarchy was restored and charles ii came to the throne. the episcopacy of the bishops and the book of common prayer were restored. this book retained all its ceremonies, despite opposition by the presbyterians. the confiscated royalist, church, and crown lands were ordered to be restored, and most were. charles ii was presented with the traditional rights of choosing his own privy council, ministers of state, and justices; making foreign policy; controlling the armed forces; and approving statutes. he was also presented with the power to call and dismiss parliament, but later, in 1694, a statute required that parliament be held at least once every three years, to avoid royal schemes of non-parliamentary government. the house of lords was reestablished and there were again bishops in it, though fewer than before about 1/8 instead of about 1/3. there were 160 peers for the next century. the house of commons was elected in the usual way, but without a king's writ. the commons was composed mostly of royalist established church members. its leaders were important members of the king's privy council. the feudal tenures of the crown, such as knights' service, were converted into free socage. they were discharged of homage, reliefs, escuage, and aids. charles relinquished purveyance, wardships, and forfeitures of marriage. in return, parliament granted him a fixed yearly income of 100,000 pounds from excise tax on beer, cider, and tea. several hundreds of dissenter ministers and school teachers were ejected from their positions, but later those who were not baptists were returned by statute of parliament because baptists did not believe in an established church. charles ii was an easygoing and kindly man and hard to ruffle. he had a weariness in the folly of men and a cynical disbelief in human virtue. his wit and great sense of humor softened many a potentially tense situation. his restoration to the throne brought in a time of enjoyment of life in reaction to the puritanism of before. at his succession, the elected parliament was oriented toward royalty and the established church. he was voted an income of 1,200,000 pounds a year. he also sold many of the last crown lands. but he always had great debts, which he described as a "desperate but not serious" situation. this was in part due to his generous maintenance of several successive mistresses and more than about a dozen illegitimate children. his entourage also included physicians, surgeons, a librarian, a poet laureate, chaplains, painters, an historiographer, musicians, a royal composer, and an astronomer. charles even joked on his deathbed that "i am sorry gentlemen, for being such an unconscionable time a-dying." the day of charles ii's restoration and birthday was designated as a day of thanksgiving when all were to participate in prayers and the singing of psalms at some church or other suitable public place. charles initiated the return of sunday afternoon wrestling, archery, music, and dancing. theaters reopened with actresses playing women's parts, an audience only in front of the stage instead of around it, a drop curtain, and painted two-dimensional scenery. actresses were allowed pursuant to royal proclamation so that plays should become "useful and instructive representations of human life" rather than "harmless delights". charles went to plays regularly. actresses were assumed to be mistresses of patrons in return for their jobs, but one fourth were actually chaste women married to actors. comedies were the preferred plays. courtesans were sympathetically and even admirably treated in plays, which mocked all restraints and glorified immorality with the exception of pornography, which was banned. bad actors were hissed off the stage. henry purcell wrote religious music for churches, ceremonial music for the english court, and theater music for english opera. opera made music a vehicle for human emotions. the gentry sang to the lute and danced to string instruments. many owned and played musical instruments. humble people had folksongs and instruments like the pipe and tabor for dancing. singing in parts was popular in town and country. in 1672 john banister started the first regular series of public concerts in his house. there were lovely formal gardens in which to walk, to see fireworks, and to buy the new ice cream. charles did much garden and park planning and let the public enjoy the royal st. james park. he loved hunting too and had the royal forests replenished with deer after poaching during the cromwell era had greatly reduced their numbers. charles ii introduced sailing and yacht racing for pleasure. he also participated in and promoted horse racing. the breeding of thoroughbred horses began with breeding to arab mares. gelding horses were now preferred over stallions. there were trotters, cart horses, and some "fast" race horses. boxing (with no gloves nor ring) was a national sport. ice skating with iron blades was popular. valentine's day was celebrated. italian puppet shows played in london. dress returned to elaborateness. gentlemen wore cavalier-style long wigs with curls, despite the church's dislike of wigs. this could hide the short hair of a former puritan roundhead. in 1666, charles introduced a new mode of inexpensive court dress which was made entirely from english textiles. this gave rise to gentlemen's weskits to below the knee with a coat of the same length and full sleeves. stockings and shoes replaced the long fitted boots. charles set a court tradition of men wearing a scarf tied around the neck. ladies often wore their hair in masses of ringlets with little corkscrew curls on each side of their heads, and later piled their hair up elaborately on their heads. they wore satin or silk dresses fitted at the waist with a pointed bodice, and full skirt. the shoulder line was low and the sleeves full and open at the front with fastenings of jeweled clasps. the only fast colors were reds, blues, purple, and yellow, but not green. they kept their hands warm in muffs. women wore perfume, rouge, and face patches. some women put on a lot of make-up. many men dressed effeminately with rouge, face patches, heavily scented clothing, muffs, and many ribbons of many colors. the facial beauty patches were in shapes such as stars, crescent moons, and hearts; they diverted attention from the common smallpox scars. there were oxford shoes, which laced up the front through eyelets. the members of the house of commons dressed like the gentry and assumed their manners. there was exaggeration in all complimentary and ceremonial language. the gentry were beginning to be thought of as a "squirearchy". they owned about half the land of the country. the population according to class was as follows: n: number of households. t: titles, degrees. social ranks, h: household size, and y: household yearly income in pounds. ___n_______________t______________________________s___________y__16 temporal lords 40 3,200 26 spiritual lords 20 1,300 800 baronets 16 880 600 knights 13 650 3,000 esquires 10 450 12,000 gentlemen 8 280 5,000 persons in greater offices and places 8 240 5,000 persons in lesser offices and places 6 120 2,000 eminent merchants and traders by sea 8 400 8,000 lesser merchants and traders by sea 6 198 10,000 persons in the law 7 154 2,000 eminent clergymen 6 72 8,000 lesser clergymen 5 50 40,000 freeholders of the better sort 7 91 120,000 freeholders of the lesser sort 5.5 55 150,000 farmers 5 42.5 15,000 persons in liberal arts and sciences 5 60 50,000 shopkeepers and tradesmen 4.5 45 60,000 artisans and handicrafts 4 38 5,000 naval officers 4 80 4,000 military officers 4 60 50,000 common seamen 3 20 364,000 laboring people and out-servants 3.5 15 400,000 cottagers and paupers 3.25 6.5 35,000 common soldiers 2 14 25,000 vagrants, as gypsies, thieves, beggars as can be seen, agriculture is still the most common occupation. great houses now had a central dining chamber for dining, with sets of suites, usually for couples, around it. each suite had an ante-chamber and/or drawing room, and then a bedchamber, off of which there was a servant's room and a closet [cabinet]. no longer did personal servants bed down in the drawing room or outside their master's door or in a truckle bed at his feet. the servant's room was connected to a back staircase for use by servants. secret guests also used it. the csbinet room was the innermost sanctum for privacy and gave its name to the later cabinet of the government. there were fewer servants and they were of a lower social status than before. they were often sons of merchants, clergymen, and army officers. gentlemen no longer advanced by service to a great man, but instead through grammar school and university education, commerce, the law, or the armed services. this change came about because the state now maintained reasonable law and order. there were more female servants, who were paid less to cook and to clean as well as do laundry and nursing. servants were kept more in the background, preferably out of sight. the elaborate ceremonial ritual with sewer, carver, and cupbearer was gone. a butler replaced the yeomen of the buttery, ewery, and pantry, and footmen began to wait on the table at which the lord, his lady, and other couples sat. servants no longer had meals in the hall, which now had a grand staircase up to the dining chamber. the highest servants, the officers: clerk of the kitchen, clerk of the check [comptroller], head cook, butler, and groom of the chambers, and female housekeeper ate in the gentleman-of the-horse's room, although at a separate table. the kitchen staff ate in the kitchen. the footmen, underbutler, porters, coachmen, grooms, stable-boys, gardeners, maids ate in a servants' room. the steward was no longer the chief household officer, but had a room near the kitchen. the bulk of the servants slept in the basement or subordinate wings of the house. great houses of nobles had more rooms, such as a chapel, library, parlors, dressings rooms, and galleries; there was a variety of architectural floor plans. the structure of a noble household of an earl was as follows: the chief official was the receiver general. he had financial responsibility for the household and prepared accounts for the household and for the tenants' estates. these were checked by an auditor. the receiver general was often the son of a country gentleman and had a salary of 50 pounds raised to 100 pounds with longevity. he had a servant and an assistant. if married, he had a house on the property. there was perhaps an attorney on retainer who were paid for a certain number of hours per week or month. the gentleman of the privy purse kept the accounts of the family and bought them apparel and toiletries. he was in close personal attendance upon the earl. his salary was 20 pounds a year. besides the receiver general and the gentleman of the chamber, the tutor and chaplain had the closest personal contact with the family. the lady had a gentlewoman with a maid servant. the receiver general supervised most of the staff. there was a steward of 40 pounds a year. he supervised a clerk of the kitchen and a house bailiff of 20 pounds a year. the bailiff had responsibility for the produce of the estate, e.g. the gardens, the deer park, and the fish ponds. under the clerk of the kitchen was the cook man and kitchen boys, the latter of whom were clothed and fed, but not paid. the steward also supervised the 4 pound yearly porters, who kept the gates; the watchmen outside; and the head housekeeper, usually a woman of 2 to 6 pounds yearly. she supervised the laundry maid and general maids, who spent much of their time sewing. the steward was also responsible for the wine cellar. a dozen footmen belonged partly to the house and partly to the stables and received 2 to 6 pounds yearly. they waited on the lord and lady in the house and accompanied them in travels and did errands for them. the gentleman of the horse supervised the stables, coach, dogs, kennels, and 16 pound yearly huntsman. boy pages also worked partly in the house and partly in the stables. they were clothed and fed, but not paid. the head gardener received 80 pounds for tending the flowers, vegetables, and fruit trees. he had casual workers as needed to assist him. the steward was also responsible for the london house. here there was a housekeeper, a watchman, and a 40 pound a year gardener, all there permanently. when the lord was there, bargemen were employed for his barge. the salaries for the family estate totaled about 600 pounds a year. sometimes married sons' or daughters' families stayed for months at the family estate; then they would pay for their part of the food. well-to-do people drank imported tea and coffee, sometimes from porcelain ware, and usually after dinner or supper. most tea leaves were brewed first for the family and guests and a second time for the servants; then they were given to the servants' relatives or friends. queen mary encouraged the fashion of collecting chinese porcelain. the rich had red or black and gilt lacquered cabinets and cupboards. oak gave way to walnut, with its variegated surfaces. there were grandfather clocks. some fireplaces now had cast-iron firebacks. stuffing began to be upholstered to woodwork benches. chairs were taller in the back. ladies did needlework to cover them and also made patchwork quilts. cane seats came into fashion. from the spring of 1665 to the end of 1666 there was a great plague, mostly in london. it was the last and worst plague since the black death of 1348. it lasted over a year and about one-third died from it. households with a plague victim were walled up with its residents inside to reduce contagion, and then marked with a red cross. church bells tolling their requiems clanged in ceaseless discord. the mournful cry "bring out your dead" echoed in deserted streets. at night groups of people shoveled the corpses into open graves. to prepare for this revolting task, they often first became drunk out of their senses. people acquired wild beliefs in hope of avoiding the plague. for instance, at one time it was thought that syphilis would prevent it, so maddened hordes stormed the brothels. at another time, it was rumored that the plague could be burned out of the air, and all one day bonfires blazed outside every door and people sweltered in the heat. other localities posted sentries on the road to keep londoners out of their areas to prevent the plague from spreading there. since sneezing was thought to be the first sign of a person getting the plague, it became common to ask god to bless a person who sneezed. in london, statistics were collected on the number of plague victims and their places of death to try to determine the cause of the plague by correlation, a new method. this was a natural sequent to merchant john gaunt's 1662 book "natural and political observations made upon the bills of mortality", which compiled yearly vital statistics from which to analyze, for instance, causes of death due to particular diseases. it reached conclusions such as that fall was the most unhealthy season; females had longer life spans than males; and infant mortality was very high. in 1666 a fire destroyed three-fourths of the city of london. the blazing buildings were so hot that people with leather buckets of water, hand squirts, and manually operated water-pumping machines could not get near them. there was a lot of noise from falling buildings. panic and desperation were widespread. there was a lot of crying out and running about distractedly. people saved some of their possessions by burying them or removing them from the fire's path as they moved to different lodgings. the streets were full of carts piled high with furniture and merchandise. the thames river was thick with heavily laden barges. melting lead from st. paul's church ran down the streets in a stream. the tower of london, upwind of the fire, was saved by blowing up surrounding buildings. eventually the wind abated and the fire was put out. a fire court with royal justices was created to offer settlement terms about property that were free, fair, fast, and final. army tents and supplies, and soup kitchens sustained the citizens in the fields. after the fire, buildings had to be brick or stone rather than wood, except for doors and windows. also, more plaster and tile was used. all roofs had to be of tile or slate, rather than thatch. there was a general use of tile for roofing. about 1714, came slate for roofings. all buildings had to be at least two stories high, with flat facades rather than overhanging upper floors. they had to have wide brick walls around them to avoid the spread of fires. many streets, squares, and alleys were professionally planned, after the example of inigo jones, who had continued his town planning with lincoln's inn field's open square surrounded by houses with iron balconies. another example was leiscester square. main streets had to be wide enough to stop a fire. the street selling that had caused so much congestion was removed to new market places. the massive rebuilding of london ended the monopoly of the building trade claimed by the mason's company. astronomer and geometrician christopher wren designed and built a new st. paul's cathedral and many churches in london, thus becoming england's first architect. he worked up from a square base through all sorts of shapes to a circular double dome on top. the fire put an end to whitehall as a royal residence and st. james palace was used instead. but at least one fire hazard remained: the practice of lighting new fires by taking buckets of hot coals from one room or house to another. this was faster than the several minutes it took to use a tinder box to start a flame, i.e. striking a piece of flint upon a piece of steel making a spark which was dropped onto tinder and then blown upon. matches were invented in this period, but expensive and unsafe. nicholas barbon began fire insurance in the 1670s. if fire broke out on an insured premises, the insurance company's firemen would come with leather buckets and grappling irons, and later small hand pumps. barbon also redeveloped many districts in london, tearing down old buildings without hesitation. he started the system of selling off leases to individual builders, who hoped to recover their building costs by selling their houses before they were completed and before substantial payments on the lease became due. entrepreneurial master-builders subcontracted work to craftsmen and took a large profit or a large loss and debt. aristocrats bought large parcels of land on which they built their own mansions surrounded by lots to be rented to building contractors and speculators like barbon. the houses built on these lots were sold and the underlying land rented. these rentals of land made the mansions self-supporting. barbon built rows of identical townhouses. sometimes houses were built on all the lots around a square, which had gardens reserved for the use of those who lived on the square. most of the new building was beyond the old city walls. marine insurance for storms, shipwreck, piracy, mutiny, and enemy action was also initiated. before the fire, e.g. in tudor times, the writing of risks had been carried on as a sideline by merchants, bankers, and even money lenders in their private offices and was a private transaction between individuals. london was residential and commercial. around the outside were tenements of the poor. from 1520 to 1690, london's population had risen tenfold, while the nation's had only doubled. london went from 2% to 11% of the nation's population. in 1690, london's population was about half a million. after 1690, london's population grew at the same rate as the nation's. the first directory of addresses in london was published in 1677. business began to follow the clock more strictly and many people thought of their watches as a necessity. london coffee houses, which also sold wine, liquors, and meals, became specialty meeting places. they were quieter and cheaper than taverns; for a penny, one could sip a cup of coffee by the fire, read the newspapers, and engage in conversation. merchants, stock jobbers, politician groups, soldiers, doctors and clergymen, scholars, and literary men all had special coffee house meeting places. notices and letters of general interest were posted therein. many merchants, brokers, and underwriters, especially those whose houses had been burned in the fire, conducted their business at their coffee house and used it as their business address. men in marine insurance and shipping met at lloyd's coffeehouse, which was run by edward lloyd who established it for this purpose in 1687. lloyd provided reliable shipping news with a network of correspondents in the principal ports at home and on the continent and circulated a handwritten sheet of lists of vessels and their latest movements at his coffeehouse. the patrons cheered safe arrivals and shared their grief over ships lost. they insured their own risks at one moment and underwrote those of their friends the next. auctions of goods and of ships and ship materials which had been advertised in the newspapers were conducted from a pulpit in the coffeehouse. french wine was consumed less because of heavy taxation and spirits and beer were consumed more. the streets were alive with taverns, coffee houses, eating houses, and hackney coaches past 9 p.m. at night. coffee houses were suppressed by royal proclamation in 1675 because "malicious and scandalous reports" defaming his majesty's government were spread there, which disturbed the peace and quiet of the realm. but this provoked such an uproar that it was reduced to a responsibility of the owner to prevent scandalous papers and libels from being read and hindering any declarations any false and scandalous reports against the government or its ministers. london air was filthy with smoke from coal burning. in 1684 the streets were lit with improved lights which combined oil lamps with lenses and reflectors. groups of householders combined to hire lighting contractors to fulfill their statutory responsibility to hang candles or lights in some part of their houses near the street to light it for passengers until 9:00 p.m., and later to midnight. in 1694 a monopoly was sold to one lighting company. in 1663 a body of paid watchmen was established in london. an office of magistrate was created and filled with tradesmen and craftsmen, who could make a living from the fines and fees. this was to supplement the unpaid justices of the peace. the public was encouraged to assist in crime prevention, such as being witnesses, but most policing was left to the parishes. crowds punished those who transgressed community moral standards, threatened their economic or social interests, or offended their religious or patriotic beliefs. often a crowd would react before the call of "stop thief" or the hue and cry from the local constable. pickpockets would be drenched under a pump. cheats would be beaten up. dishonest shops and brothels would be ransacked or destroyed. the most common targets were promiscuous women and pregnant servants. there were many highway robberies and mob actions in london. mobs in the thousands would turn out against the catholics, especially at times of unemployment and trade depression. working people still saw demonstrations and violence as the best way to achieve their economic goals, since strikes didn't work. for example, the silk workers used street violence to get protective legislation against imports and mechanization in 1675. the manufacture of silk material had been brought to england by french workers driven from france. in 1697, three thousand london silk weavers demonstrated outside the commons and east india house against the importation of raw silks by the east india co., and a couple months later, they attacked a house in the city owned by a gentleman of the company. in 1701, heavy duties were imposed on the import of indian silks and wearing of indian silks was prohibited by statute. sometimes mobs would break open the prisons to release fellow rioters or take action against strike breakers or informers. parish constables elected by their neighbors could not control the mobs and stayed within their parishes. dueling was still prevalent, even though against the law. in london and westminster, it was hard to enforce the requirement that inhabitants keep the street in front of their house clean and store the filth until the daily raker or scavenger came with cart and dung pot. so a commission was made responsible for paving and keeping clean the streets, making and repairing vaults, sewers, drains, and gutters, and removing encroachments. it compensated those with encroachments of over 30 years. it assessed inhabitants of such streets 16d. per square yard from the front of their building to the center of the street. women continued to empty their pails and pans outside their doors and did their washing on stools in the streets. there was a penalty of 5d. for throwing filth in front of one's house, and 20d. for throwing it elsewhere in the streets. scavengers and rakers could lodge their coal ashes, dust, dirt, and other filth in such vacant public places as the commission deemed convenient for accommodating country carts returning otherwise empty after their loads were sold. however, this system did not work because people would not pay their assessments. so there was a return to the former system of requiring citizens to sweep and clean the streets in front of their buildings twice a week and keep the filth until a scavenger or raker came. the penalty for not doing so was 3s.4d., later raised to 10s. any one throwing coal ashes, dust, dirt, rubbish, or dung onto the streets or lanes incurred a fine of 5s. there was a fine of 20s. for hooping or washing any pipes or barrels in any lane or open passage or repairing coaches, sawing wood, or chiseling stones in the streets. pigs kept in or about one's house had to be forfeited. one way that people traveled was to be carried in sedan chairs held up by two horizontal poles with one man at the front ends and another man in back. there were so many sedan chairs and coaches for hire in london that the watermen lost business. all hackney coaches in london or westminster were required to be licensed and marked with their owner's distinctive mark so that complaints could be made. their maximum rate was 10s. for a 12 hour day, and 18d. for the first hour and 12d. for every hour thereafter. licensed coachmen were not allowed to practice any other trade. the coaches paid the commission 5 pounds yearly. hay sold along the road brought 6d. per load, and straw 2d. per load, to the commission. there had to by paid 3d. for every cart load of hay sold at the hay market and 1d. for every cart of straw, to go towards paving and repairing the hay market street. overall, agriculture improved. fields that would have been left fallow were planted with new crops which restored indispensable chemical elements to the soil. at the same time, they supplied winter food for stock. the size and weight of animals for slaughter grew. there was so much stock breeding that it was more economical for a family to buy meat, milk, and eggs, than to maintain its own animals. there was an explosion in the growing of beans, peas, lettuce, asparagus, artichokes, and clover. the demand for food in london and other urban areas made enclosure for crop cultivation even more profitable than for sheep grazing. the government made no more attempts to curtail the enclosure of farm lands. the number of enclosures grew because copyholders were not successful in obtaining the legal security of tenure. but most land was not enclosed. in 1661 in the county of essex, the wages for mowing one acre of grass were 1s.10d.; for reaping, shearing, binding one acre of wheat 4s.; and for threshing a quarter of wheat or rye 1s. wives participated with their husbands in general agricultural chores and did the dairy work including making cheese. every householder kept chickens because egg production was cheap, their market price being only 1s. for a hundred. wives also took care of the gardening work and traditionally kept for their own the cash that came in from garden, dairy, and poultry products. a wife made jellies and preserves when the fruit trees, bushes, and vines were bearing. imported sugar enabled fruit to be preserved as jam in jars sealed with a layer of mutton fat to make them airtight. she was likely to concoct medications from her herbs. meat had to be smoked or salted when there was not enough fodder to keep animals alive through the winter. she saw to it that the soap was boiled and the candles molded. she cooked the daily meals, did the washing, produced cloth for the family's use, and sewed the family's clothing. women had less work and lower pay than men. since most cottages had a spinning wheel, spinning work was readily available to wives. in the 1670s, a female weaver or spinner was paid 2-4d. per day. a domestic servant, who was usually female, was paid 40-80s. a year. men in the trades objected to competition from lower-paid women. aristocratic ladies actively managed their family's household and estates. the only work available to a high middleclass woman who was waiting to get married was to be a governess in another household or a lady-in-waiting to a gentlewoman. children often worked; this was recommended so that they were under the direct supervision of their parents rather than getting into mischief in the village. the mother typically mingled severity with gentleness, but the father did not dare to err on the side of leniency. discipline was by whipping. children were treated as little adults. the lack of a conception of childhood innocence even extended to the practice of adults to tell bawdy jokes in their presence or play with their children's genitals. about 1660, the royal society of london for the promotion of natural knowledge was founded by charles ii, who became its patron. it was formed from discussion groups of the new experimental philosophy. it included the baconians formerly at oxford and cambridge, who were ejected at the restoration, and a group of gresham professors of geometry and astronomy. the royal society met at gresham college. its goal was to compare ideas in mathematics and science and identify specific aims of science. it published scientific reports to make its findings generally known. this was a great improvement over the private correspondence among scientists, which was limited by the use of various languages. charles himself had his own laboratory and dabbled in chemistry and anatomy. similar societies were formed in many places in the world. theologicians warned that scientific research was dangerous. but it's advances improved agriculture, manufactures, medicine, surgery, navigation, naval architecture, gunnery, and engineering. issac newton was a genius, who in his childhood designed and built model windmills, water wheels, water clocks, sundials, and kites. he came from a family which had risen from the yeomen ranks to the gentry. for a few years after graduating from cambridge university in 1665, he secluded himself in the countryside to study. here, using the work of john wallis, he formulated the binomial theorem that expands (a+b) raised to the nth exponent power, where n is an integer. he also worked with numbers that had exponents that were fractions, unending decimals, or negative numbers. certain patterns of numbers, such as the sum of doubling each number in a series as in: 1+2+4+8+...never terminates; the series is infinite. he then developed the notion of a number being the limit of the summation of an infinite converging series of a pattern of numbers, such as the limit of 1+(1/2)+(1/4)+(1/8)...= 2. by considering the state of motion of a mass-point in an infinitely short time under the influence of an external force, he developed rules for finding areas under algebraic curves [integration], such as the hyperbola, and finding tangents to algebraic curves [differentiation], which he recognized as inverse processes. that is, differentiating the integral of a function results in a return to that function. newton discovered that colors arose from the separation, rather than a modification, of white light, that is natural sunlight. he did this using a prism to dissect the white light into its spectrum of constituent colors and then using a prism and lens to recombine the colors to reconstitute white light. the spectrum was the same as that of a rainbow. he determined the angle of refraction of each color by beaming white light through a prism, and then through a hole in a board which isolated one color, to another prism. when he discovered that all colors reflect from a mirror at the same angle, he invented and built the reflecting telescope, which used a parabolic concave mirror and a flat mirror instead of a convex lens, thereby eliminating the distortions and rainbow coloring around the edges that resulted from the refraction of different colors at different angles. he deemed a ray of light to consist of a rapidly moving stream of atomic particles, rather than robert hooke's pulses or christian huygens' waves, because shadows showed a sharp boundary between the light and the absence of light. he reasoned that if light was made up of pulses or waves, it could spread around obstacles or corners as sound seemed to do. he approximated the speed of sound by timing echoes in corridors of various lengths. newton was methodical and combined the inductive and deductive methods of inquiry, first making observations, and then generalizing them into a theory, and finally deducing consequences from the theory which could be tested by experimentation. this was the first clear expression of the basis of the "scientific method". he carried mathematization of data from experiments as far as possible. newton theorized that the same gravity force that pulled an apple down from a tree extended out to the moon to hold it in its orbit around the earth. he saw a connection between these movements by imagining a cannon on a mountain shooting a series of cannonballs parallel to the earth's surface. the first shot has only a tiny charge of explosive, and the cannonball barely makes it out of the muzzle before falling to the ground. the second shot is propelled by a larger charge, and follows a parabolic arc as it falls. the next shots, fired with increasingly more propellant, eventually disappear over the horizon as they fall. lastly, with enough gunpowder, a speeding cannonball would completely circle the earth without hitting it. by extrapolating from these ever faster projectiles, he opined that the moon was held in its orbit by the same earth force that operated on the projectiles. he correlated the moon's orbit with the measured acceleration of gravity on the surface of the earth. he put various substances with different masses and weights into the shell of a pendulum and observed that the pendulum had the same period [time for one oscillation] and fell at the same rate as free-falling objects. then he formulated the idea that the ultimate agent of nature was a force acting between bodies rather than a moving body itself. gravity did not act in proportion to the surfaces of bodies, but in proportion to quantity of matter. gravity penetrated to the very center of all bodies without diminution by the body. gravity's force extended to immense distances and decreased in exact proportion to the square of the distance. newton opined that an object moves because of external forces on it rather than by forces internal to the object. these are his three laws of motion. 1) he connected the concepts of force and acceleration with a new concept, that of mass. mass is a quantity intrinsic to an object that determines how it responds to forces, such as the force of gravity. the greater the mass of a body, the stronger the force of gravity on it, and the more difficult it is to get it moving. he found that the acceleration of a body by a force is inversely proportional to its mass, and formulated the equation that force equals mass multiplied by acceleration. so if a force acts on a planet, it produces a change in velocity that is proportional to the force and in the same direction as the force.2) his law of inertia is that any body, persists in its state of rest or of uniform motion in a straight line, unless affected by an outside force. 3) his next law is that when a body a exerts a force on a body b, then b also exerts a force on a which is equal in amount but opposite in direction. this means that forces that operate between different parts of a planet produce no net force upon the whole planet, so that the mass of a planet can be treated as if it is concentrated at a point. his law of gravitation explains how the whole universe is held together. this law holds that every object in the universe attracts every other object with a single gravitational force that is directly proportional to the product of their masses and inversely proportional to the square of the distance between their centers. newton had at first accepted the cartesian system of celestial vortices of aether that swirled the planets and comets around their orbits. he determined that kepler's law that areas were swept out in equal times implied that gravity acts in the direction of a line between the planet and the sun. the gross features of the universe and kepler's observations led to his recognition that the attraction between two bodies decreases inversely in proportion to the square of the distance between them. only one kind of force would satisfy kepler's requirement that the sun was a focus of an ellipse and still be consistent with kepler's law that the square of a planet's period was proportional to the cube of its mean distance from the sun; that was the inverse square law. then he came to accept robert hooke's hypothesis that planets are kept in their orbits by the combination of an attractive power of the sun and of motion in a straight line that was tangential to their orbits. from astronomical data, he calculated this centripetal acceleration of each planet towards the sun to be proportional to the inverse square of its distance from the sun. he also calculated the "centrifugal" accelerations in a straight line. his experiments showed that the centripetal force in a circular orbit was equal to the mass of the body multiplied by the square of its velocity, all divided by the radius of the circular path. he used calculus and differential equations to determine centripetal forces of elliptical orbits, where the distance from the sun, the velocity, and the acceleration were variables. newton showed that his single gravitational force could account for the way free-falling objects descend to the ground, the parabolic trajectory of projectiles, the path of the moon in its orbit around the earth, the course of the tides every twelve hours, the lower densities of the earth's atmosphere at greater heights, the paths of jupiter's moons, the paths of comets, and the elliptical paths of the planets in their orbits around the sun. this determination discredited the previous belief that invisible angels moved the planets. newton proved from his law of gravitation and his three laws of motion the truth of kepler's laws of elliptical planetary motion. newton demonstrated from data collected from the comet of 1680 that comets moved according to his law of gravitation. he showed that the path of a body traveling within the gravitational force of the sun is a circle, an ellipse, a parabola, or a hyperbola. he used the concept of a common center of gravity as a reference point for other motions. the fact that the center of gravity of the solar system was within the body of the sun verified that the sun was indeed at the center of the solar system. newton deduced that the tides were created by the rotation of the earth with bulges of water on the earth's surfaces that were closest and farthest from the moon. the moon "pulled" the water nearest to it with a greater force than average. it "pulled" the water farthest from it with a force weaker than average. these two moving bulges created two tides a day. newton's "principia mathematica philosophiae naturalis", was published in 1687. the established church denounced it as being against the scripture of the bible. newton did not agree with the established church on many points, such as the trinity, and was considered a heretic. he had his own interpretations of the bible and doubted the divinity of jesus. but it was accepted for dissenters like newton to qualify for full civil rights by maintaining an outward conformity and taking the sacrament in the established church once a year. newton was given a royal dispensation from taking holy orders as prescribed by the rules for tenure of fellows of his college at cambridge university. he did believe in a god who created the universe and who had a ubiquitous presence in all space. when catholic king james ii tried to have a catholic monk admitted to the degree of a master of arts at cambridge university without taking the oath of adherence to the established protestant church, so that he could participate in the business of the university, newton was active in the opposition that defeated this attempt. as a result, he was elected to parliament by cambridge. when olaus roemer, a danish astronomer, was applying newton's laws to the paths of the moons of jupiter to make a table of eclipses of jupiter's moons for use in determining one's longitude, he noticed that the eclipses were five hundred seconds ahead of average time at that time of year when the earth and jupiter were on the same side of the sun, and five hundred seconds behind average time six months later, when jupiter was on the other side of the sun. he reasoned that this difference was due to the light from jupiter's moons taking more time to reach the earth when jupiter was farther from the earth, i.e. on the other side of the sun. he concluded that light does not travel instantaneously, but at a certain speed. from the fact that it took 1000 seconds for light to travel the diameter of the earth's orbit, he calculated its speed in 1676. in 1668, christian huygens formulated the law of conservation of momentum [mass multiplied by velocity], which held that when objects collide, they may each change direction, but the sum of all their momenta will remain the same. huygens also recognized the conservation of what was later called "kinetic energy", which is associated with movement. he developed laws of centrifugal force for uniform motion in a circle. he derived the formula for computing the oscillations of a simple pendulum. in 1690, he posited the theory that light consists of a series of waves. it states that all points of a wave front of light in a vacuum may be regarded as new sources of wavelets that expand in every at a rate depending on their velocities. he thought this a better explanation of bending and interference of light than newton's particle theory. in 1661, robert boyle, called the father of modern chemistry, defined an element as a substance that cannot be further decomposed. he distinguished an element from both a mixture, which is easily separable, and a compound, which is not easily separable. he used an air pump he developed and a glass jar to create a confined vacuum space for experiments to find the properties of heat, light, and sound. he noted that burning objects such as candles and coal, when placed in the receiver of his air pump, went out after a time although air was still present. he opined that animals were dependent upon a fresh supply of air to live. he studied the relationship between the volume, density, and pressure of air and gases. he proved by experiment that the volume of a gas at a constant temperature varies in inverse proportion to the pressure applied to the gas. since gas is compressible, he opined that gases must be composed of discrete particles separated by void, and also that basic physical properties were due to motions of particles, or atoms, which was an ancient greek conjecture. this cast doubt on the long-held belief that everything was composed from four basic elements: air, water, fire, and earth. boyle's laboratory at oxford was denounced by the oxford clergy as destroying religion. in 1679, the steam pressure cooker was invented by denis papin from france. he invented the atmospheric engine in 1690. robert hooke helped boyle build his air pump. hooke was thirteen when his father, a minister, died. hooke was a genius with innate mechanical skill and was an able mathematician. he applied a spiral spring to regulate the balance of watches. a lord financed him as a gresham lecturer of geometry for 50 pounds a year. in 1666, he used a pendulum to measure the force of gravity and showed that the center of gravity of the earth and moon is a point describing an ellipse around the sun. in 1667, he explained the twinkling of the stars by irregular atmospheric refractions. he formulated the theory that light is composed of pulses. hooke's law states that the amount an elastic body such as a spring stretches out of shape is in direct proportion to the force acting on it: its tension. he invented the odometer, a wheel to measure distances. he constructed an arithmetical machine. he invented the universal joint, which can move in many angles. his book of drawings of microscopic animals is a classic. he proposed that fossils can be used as a source of information about the earth's history. hooke became rich from his inventions, but this was not known until his death, when thousands of pounds were found in his iron chest. in 1668, wallis postulated the correct theory of impacts of inelastic bodies, based on the principle of conservation of momentum. in 1685, he introduced the first graphical representation of complex numbers. royal astronomer and genius edmond halley, the son of a soap maker, studied tides, magnetism, and the paths of comets and stars. he went on voyages to study the heavens from different positions, thereby laying the foundations of physical geography. he showed that the stars change in position in relation to each other. with newton's help, he calculated the orbit of a comet he saw in 1682 to be elliptical rather than parabolic and then proved it was the same comet that had appeared in 1531 and 1607, indicating it's regularity; it was then named "halley's comet". however, the church of england still embraced the idea that comets and eclipses were evidence of god's wrath. greenwich observatory was built in 1675. halley used a barometer to measure the density of the atmosphere and related its readings to elevations into the atmosphere and to weather. he determined that the cause of the tropical trade winds was the sun warming the tropical air at the equator, causing it to rise and move north as it was replaced by cooler air from the north. this body of air was deflected by the rotation of the earth. he illustrated the tropical winds with the first meteorological map. he made a descent in a diving bell, which was used to try to reach wrecked treasure ships. he studied fossils and perceived them as remnants of living beings that had died long ago, and imagined a succession of living things. halley surveyed the tides and coasts of the british channel for the king in 1701. in 1675, apothecary nicolas lemery divided substances into mineral, vegetable, and animal. he wrote a dictionary of pharmaceuticals. john ray and francis willoughby were friends who traveled together to study plants and animals respectively. john ray started the science of zoology with his edition of francis willoughby's "ornithology" on birds and his own "history of fishes". he also attempted the first scientific classification of animals in his "synopsis of quadrupeds". ray compared anatomies and experimented on movements of plants and the ascent of sap. he knew that fossils were remnants of old animals. ray first suggested the concept of species in classification of animals and plants. he opined that the goodness and wisdom of god was shown not only by the usefulness of animals to man's uses as taught by the church, but also by the adaptation of animals to their own lives and surroundings. the vast array and dispersal of animals found by world explorers all over the world cast doubt on the biblical story of noah putting two of every kind of animal on an ark. the science of botany began with ray's "history of plants" and the researches of robert morrison, who was charles' physician and keeper of his gardens. nicholaus steno, a danish physician, diagrammed six levels of stratification on the earth's surface and demonstrated in 1669 that layers of strata of rock are always deposited with the oldest layers on the bottom and the youngest layers on the top. this began the science of geology. he argued that shifts in the earth's strata caused the formation of mountains. he identified fossils as ancient creatures. the idea that fossils were remnants of dead animals existing before man conflicted with the religious idea that adam's fall began sin and caused death. the idea from fossils that existing species of animals were modifications of predecessor animals conflicted with the religious belief that noah's ark had preserved all the varieties of animals. john aubrey described stonehenge, thus founding prehistoric archaeology. he thought it to be a druid temple. the telescope and compound microscope, which has an objective lens and an eyepiece lens for producing a wide range of magnifications, were further developed. the cellular basis of life was discovered and described by robert hooke. nehemia grew, the son of a grammar school master who became a physician, observed and drew plant anatomy, including leaves, flowers, fruits, seeds, ovules, pollen grains, and stamens. he was the first to observe the existence of plant sexuality. italian marcello malpighi, a physician, used the new compound microscope to study human skin, spleen, kidneys, and liver and also compared the livers of several types of animals. he discovered capillaries linking the arterial and venous circulation in the lungs. dutchman anton van leeuwenhock, a cloth manufacturer who made microscopes to inspect the quality of cloth, turned them to use in understanding the life cycles of mites, lice, and fleas. he correctly described human blood cells. when he found what he described as tiny animals (bacteria, protozoa, and rotifers), he sent clear descriptions of them to the royal society in london as proof against the theory of spontaneous generation, which held that lower forms of life could arise from nonliving matter. this started the science of bacteriology. with the discovery of the egg in the female reproductive system, the status of women was lifted. physician thomas willis, son of a farmer, dissected brains of men and animals to study the anatomical relations of nerves and arteries. excess urine had been associated with a wasting disease. willis identified diabetes mellitus with excess of urine that was sweet. physician thomas sydenham, son of a gentleman, observed epidemic diseases of london over successive years, thus founding epidemiology. he also furthered clinical medicine by emphasizing detailed observations of patients and maintaining accurate records. he wrote a treatise on gout and identified scarlet fever. he introduced a cooling method of treating smallpox. but he still relied on the big three treatments: bloodletting, purging, and sweating. bloodletting was to draw off bad blood so that it could be replaced by a better fluid. another treatment used was cupping, whereby a vacuum was created by heated glass cups to draw blood to the surface of the skin. john locke performed one of the first successful operations draining a kind of abscess of a man's liver. it was common for people who felt ill to take a laxative and rest at home. in 1690, physicians opened the first dispensaries, which gave treatment and medicine together, to take business away from their rivals: the apothecaries. london's apothecaries were released in 1694 from jury service and service as constable, scavenger, or other parish or ward office because it was necessary that they be available to attend the sick at all times. peruvian bark which had quinine as its alkaloid had been introduced as a proven cure for the ague, a fever with chills usually due to malaria, in 1653. the english ceased to believe in holy wells, but went to spas such as bath for treatment of disease. there was more bathing because private homes in towns now had indoor baths. the public baths came into disuse. for childbirth, only rich women were attended by physicians. most physicians used talismen such as the eagle stone at deliveries. caesarian section almost always led to the death of the mother. midwives were licensed by the church and could baptize babies. jane sharp wrote "the midwives book" with anatomical illustrations. women over thirty had fewer children and the last child born was at an earlier age than before. this was in part due to birth control such as coitus-interruptus, long breast-feeding of a current child and/or the taboo against sex if the wife was still breast-feeding. rich women often employed wet-nurses to breastfeed their babies. babies seldom thrived, or even survived, without out a regular supply of breast milk. john locke, an oxford don, physician, and son of an attorney, expressed a view that the monarchy was not based on divine right, but rather on a contractual relationship with the people, who were reasonable, free, and equal by nature. this idea was first adopted by revolutionists and then became accepted as orthodoxy. also, he articulated the right of resistance, the supremacy of legislative assemblies, and the responsibility of rulers to answer to their subjects. he theorized that men turn to forming a civil government when there is a need to protect accumulated property from some unreasonable men. this, along with the protection of life and liberty, was the primary function of government, before royal pleasure, national pride, or foreign conquest. he wrote theories on the interaction of supply, demand, interest rates, rents, coinage, and foreign exchange rates. he believed that interest rates should be the natural ones determined by market forces rather than by the legislature, especially if there was an attempt to lower interest rates below their natural rate, which was not only undesirable but easily circumvented. he thought that attempting to legislate contrary to natural economic laws, e.g. prices, was doomed to failure from unexpected consequences. he agreed with most mercantilists that by maintaining a large inflow of precious metals through consistent export of surpluses in foreign trade would lead to low interest rates, increased trade, increased capital stock, high employment, and high prices, and therefore a healthy economy and enrichment of the nation. locke thought that knowledge comes primarily from experience, i.e. sensation and reflection, rather than from innate ideas placed in the mind by god, so that observation and experimentation are necessary to find truth. he theorized that propositions of truth have probability rather than certainty. probable propositions included opinion, belief, and revelation. his "thoughts on education" was a great book on the formation of character. locke also advocated the use of a large field for inventing labor-saving and economic devices for agriculture. he espoused freedom of thought in "letters on toleration" and wrote "an essay concerning human understanding", which described how the mind functions in learning about the world and which attempted to reconcile science and christianity. he was a great admirer and friend of newton and they shared religious views. he was also a member of the royal society. at oxford and cambridge universities, there were the most enlightened theologians, classicists, orientalists, philologists, mathematicians, chemists, architects, and musicians. there were professors of anglo-saxon, hebrew, and arabic. john locke's influence caused modern philosophy to supercede traditional scholasticism. there were no more disputations to qualify for degrees. some of the students were the sons of noblemen and sat at meals with the heads, tutors, and fellows of the colleges. most students were the sons of landowners, clergymen, professional men, or prosperous men of business. they were known as the gentlemen commoner students. the few poor students were known as servitors and paid for their education by menial work. corporal punishment ceased. instead there were fines, suspension, and expulsion. fellows of colleges had common rooms for drinking and smoking together as they had done in taverns outside college walls. the king had authority to grant licenses in sell or give land in perpetuity, to encourage founding and augmenting colleges and schools. the two universities were vested with the presentation of benefices that had belonged to papists. english nonconformists such as presbyterians were excluded from oxford and cambridge universities, so they were educated at glasgow in scotland. grammar schools were blamed for the past civil war by educating too many people above their station, so ecclesiastical control now stifled them. a few dissenting schools were established. charity was given to schools for children of the poor for placement as apprentices, but not to educate them above their stations. in the 1670s, about 70% of males in london were literate. by 1680, illiteracy was a special characteristic of the poor instead of a characteristic of the vast majority of common people as in 1580. fountain pens came into use. many books written tended to be about the author's experiences, for instance samuel pepys' "diary", gilbert burnet's "history of my own times", john evelyn's lifelong diary with vivid descriptions of striking events of the day, and nonconformist celia fiennes' description of her tour of england on horseback. there were many political biographies. historians did not yet study history as a continuous process, but narrated self-contained stories to instruct by example. william fleetwood wrote about economic history in "chronicon preciogum". george hicks put together a "thesaurus" of the northern languages. thomas hyde wrote on ancient persian religion. john spenser compared jewish rites with those of other semitic people, thus starting comparative religion. richard bentley, william's librarian, wrote a "dissertation" on the ancient greeks. he compared the ancient greek life with modern life. he also confuted atheism on the newtonian system. a translated version of "critical history of old testament" by frenchman richard simon identified the old testament as history instead of divine revelation. john milton wrote "paradise lost", which retells the biblical story of the creation and the fall of adam and eve against the backdrop of satan's rebellion and expulsion from heaven and emphasized god's justice in spite of everything. the poem deals with the puritan struggling against evil and the problem of sin and redemption. it has a cold and severe conception of moral virtue and stoical self-repression in its characters. there is no sympathy with the human condition. reading this book made the english more serious, earnest, and sober in life and conduct and more firm in the love of freedom. john bunyan wrote "pilgrim's progress" in which a tinker takes a journey to find the everlasting city of heaven and on the way meets people who try to harm him. but he derives strength from his adversities. the journey is a metaphor for the christian soul trying to find salvation. it is puritan in its sympathies and has insights into human nature. john dryden wrote on large social, political, and humanistic issues, often by political satire. william congreve wrote plays such as a comedy on manners. william wycherley wrote cynical satires and portrayed folly, affection, and vice. john vanbrugh wrote plays satirizing london high society and social institutions. john toland wrote "christianity and mysterious" on deism. "puss in boots", "red ridinghood", and "cinderella" became available in print. there were many female poets, bookwriters, and playwrights. anne finch, later vicountess conway, wrote the philosophical book: "principle of the most ancient and modern philosophy" to reconcile the new science with christian belief. in it every creature had a body and a spirit. mrs. aphra behn wrote "oroonoko", one of the first novels. basua makin, governess of the little sister of charles ii wrote an essay to revive the education of women, arguing that women's activity in wartime showed that they were fit to be educated. elizabeth elstob, who studied teutonic languages, was one of the founders of women's education. mary astell proposed a college for women. some women painted portraits. there were rigid censorship acts from 1662 to 1695. the first required that no one could print a book without first registering it with the company of stationers of london and having it licensed by appropriate authority: common law books by the lord chancellor or the lord keeper of the great seal, affairs of state and history books by the secretaries of state, heraldry books by the earl marshall or kings of arms garter, university books by the chancellor or vice chancellor of either of the universities, and all others including divinity, physics, and philosophy by the archbishop of canterbury, or bishop of london. books could be imported only into london and not sold until approved by the archbishop of canterbury or bishop of london after being opened and viewed by a scholar appointed by these bishops and a representative of the company of stationers. if heretical, seditious, scandalous, schismatic or otherwise dangerous or offensive, the importer could be punished. no one could print or import copies of any books without consent of the owner with right by letters patent. the penalty for not doing so was to forfeit 6s.9d. for each such book, of which the king would receive one half and the owner one half. printers had to set their own name to the books they printed and also the name of the author or else forfeit such book. only freemen of london who were members of the company of stationers could sell books. the company of stationers had the authority accompanied by a constable to search all houses and shops where they knew or had "probable reason" to suspect books were being printed. they could search houses of persons of other trades only by special warrant. they could examine books found to determine if they were licensed and, if not, to seize them. justices could imprison offenders. the first offense by offending printers was to be punished by suspension from printing for three years, the second offense by permanent disallowance from printing, fine, imprisonment, and corporal punishment not extending to life or limb. this statute was enforced by frequent prosecutions, such as of publishers of pornographic books. the only newspapers to appear between 1660 and 1679 were official government sheets. but in 1695 the requirement to license publications, including newspapers, was abolished, thereby giving some freedom to the press. locke had argued for this freedom, stating "i know not why a man should not have liberty to print whatever he would speak and to be answerable for the one just as he is for the other..." in 1702 the first daily newspaper in the world came into existence in england. the stationer's company monopoly of printing also ended in 1695. printing was not regulated and no longer criminal just because it was unauthorized. printing could now be done in other places than london, york, oxford, and cambridge. the rich got richer and the poor got poorer. many successful merchants and manufacturers bought landed estates and established a line of country squires or baronets or even peers. the fashion started in the nobility and the richest mercantile families that their wives should become ladies of leisure. for workers though, there was constant underemployment. in periods of economic crisis industrial workers lost their jobs. much work was seasonal. anyone who could work most of the time was fortunate. laboring and outservants, who comprised one fourth of the population, and cottagers and paupers, who comprised another fourth of the population, had to spend more than they earned. the poor rate collected from the parishes for the cottagers and paupers was 3d. per week. there was an agricultural depression that was deepest in the 1680s after the collapse of a boom. it was the only bad depression experienced in peace time. there was famine in 1698. any person receiving relief from any parish and his family members cohabiting with him was required to wear a badge with a "p" which identified his parish. this was to differentiate them from idle, sturdy, and disorderly beggars who were not entitled to relief. there were more poor people and, despite the poor laws, many became rogues or vagabonds or starved to death. many went from parish to parish to build cottages and consumed all the wood there and then went to another parish. so the parishes were allowed by statute to remove any person coming to settle in any tenement under the value of ten pounds who was likely to be chargeable to it. they were then removed to the last parish were they had resided for at least forty days. excepted were people temporarily moving to another parish to work at harvest time. the overall effect was to decrease the mobility of people. but a later statute permitted greater movement of poor people by allowing those who were poor for want of work to go to another parish where labor was wanted. they had to bring a certificate of their present parish membership to the new parish, where they could settle if they rented a tenement worth ten pounds a year or served in a parish office. later, settlement had to be given to inhabitants paying its parish's rates, and unmarried inhabitants hired for one year, and apprentices bound by indenture. but parishes were displeased with the requirement to give settlements to these people because they feared they would become poor and need parish assistance, thereby increasing the rates to be paid. parish poor houses were converted into spinning schools to obtain an income. parishes of large towns were combined to set up large workhouses, where the poor could be set to unskilled manufacture, but the managers lacked the character and education to make them work. because prisoners often died before trial and the poor prisoners became instructed in the practice of thievery in prison, they were set to work on materials provided to them at public expense. no parish was rated at more than 6d. per week for such. the president and governors of corporations oversaw rogues, vagrants, sturdy beggars, and idle or disorderly persons working in corporations or workhouses. assessments were made for building and repairing gaols in order to maintain the health and safe custody of the prisoners. also, gaol fever, a virulent form of typhus, was so prevalent in the large prisons for criminals and debtors that it frequently spread through the adjacent towns. during some assizes, it killed sheriffs, lawyers, and justices. in 1692, london lands were taxed for the relief of orphans. churchwardens could seize the goods and chattels of putative fathers and mothers deserting bastard children. from 1691 to 1740, societies for the reformation of manners prosecuted poor people for moral offenses. all hackney coaches and stage coaches in all the realm became required to be licensed. the turnpike system came into use. tolls were paid for road upkeep and repair by private companies. the local parishes ceased to have this responsibility. john ogilby wrote the first road book based on actual surveys of the roads. stage coaches cost a shilling for every five miles and went 40-50 miles a day. the trip from london to oxford was twelve hours. the company of coach and coach harness makers was founded with the consent of the king. the body of a coach hung from the frame by leather braces. one axle pivoted for turns. plate glass was used in the windows. rivers improved so that most places were no more distant from navigable waters than a long day's haul on land. the several post offices were put under the authority of one postmaster general appointed by the king for the purpose of speed and safety of dispatches, which were carried by horseback. one sheet letter going less than 80 miles cost 2d., and more than 80 miles, 4d. when the army was disbanded after the restoration, its officers and soldiers were allowed return to their trades and their apprenticeships without serving the usual seven years. parishes were required to provide for poor and maimed officers and soldiers who served charles i or charles ii. the royal hospital founded by charles as a home for veteran soldiers opened in 1692. greenwich palace was converted to a hospital for seamen and their widows and children to encourage men to become seamen: mariner, seaman, waterman, fisherman, lighterman, bargeman, keelman, or seafaring man in the king's navy. also, children of disabled seamen were to be educated at the expense of the hospital. charles retained one regiment from which he started a small standing army, which slowly increased in size ever after. the army was primarily mercenary, as it had been in medieval times, with officers buying their commissions. colonels were the proprietors of their regiments and captains were the proprietors of their companies. the soldiers were ill mannered, swearing and cursing and stealing, sometimes from peoples' homes, and intimidating people with their swords. the bayonet was invented to attach onto a gun, which were muzzle-loading with a match lock. so pikemen with their long spears became obsolete. hand grenades and small explosive bombs came into use about 1670. explosives were also used in mines. mines for coal became deeper as coal replaced the use of increasingly expensive wood charcoal for brewing and for brick, glass, and china manufacture. flooding of coal, tin and copper mines became a problem. in 1698, thomas savery invented the miner's friend, a practical atmospheric steam engine without a piston. there was resort to many devices to fund wars. the land tax was still the primary tax. the customs and excise taxes were often extended to more goods and wares. sometimes there were duties imposed on marriages, births, and deaths. also, hawkers, peddlers, and other trading persons going from town to town to other men's houses on foot or on horse carrying wares had to buy a license. there were also loans from privileged companies such as the bank of england, east india co., and the south sea co. commissioners were appointed to take and state the account of all money in the public revenue. this discouraged the prevalent corruption of government officials and thereby the people were encouraged to pay their taxes. the goldsmiths loaned money to the king and to private persons and to the exchequer. receipts from goldsmiths for storage in strong boxes had become a de facto paper currency. but when the goldsmiths had no more money to lend, the bank of england was founded in 1694 under whig auspices to provide money for war. it was the first institution to issue notes in excess of its total deposits. however, it was not allowed to lend money to the crown without the consent of parliament. it was incorporated as the first english joint-stock bank and had about 1,300 shareholders. these original subscribers were individuals from london from many walks of life, including well-to-do tradesmen and about 12% of whom were women: wives, widows, or spinsters. not many corporations were original subscribers. holders of at least 500 pounds could vote, of 2000 pounds could be directors, and of 4000 pounds could be governor. the bank issued notes payable to bearer and discounted bills, but these were not legal tender. it lent at 8% to the crown and occasionally to corporations. money was also borrowed by offering annuities on single lives. this was the first time the government borrowed directly from the public on a longterm basis. in 1695 there was inflation due to over issue by the bank because of inexperience, pressure from government, and the bank's greed for business. after a dividend of 5% in 1695, the next year there was no dividend and so the bank stock price fell. in 1696, five pound and ten pound short term bonds were sold to the public. also in that year was the first run on the bank. this occurred two days after clipped money lost currency; people wanted the new recoined money, but the mint had not supplied the bank with sufficient supplies. interest instead of cash was given for notes. cash was short for months. the bank's credit was much shaken. it was then given a monopoly so that its notes would not have competition. thereafter, its dividends were good about 12% per year. because of its monopoly, its dividends were about 3% above the current going rate of interest. about this time, exchequer bills, with interest, were started by the exchequer and circulated by the bank of england. they were frequently endorsed many times by successive holders. the bank simply took over from the goldsmiths its main everyday business of deposit, with a running cash note [cashier's note, specie note, cash note], which was payable on demand and normally did not bear interest; and a drawn note [precursor to the check, but not on special paper]. the bank gradually convinced many of its clients to use its "check" [cheque] paper when drawing. the check paper was unique to the bank and embellished with distinctive scroll work to serve as an obstacle to fraud. over time the running cash note tended to be for round sums of at least twenty pounds and multiples of five pounds. the bank of england had a monopoly on issuing notes in the london area. country banks arose and issued bearer notes payable on demand and interest-bearing notes in their areas. the bank of england gave to its depositors the service of paying annually to a designee without further order. a decision of the common law courts held that bills of exchange (written orders to pay a given a sum on a given date) were transferable to other people by successive endorsements. so long distance payments no longer had to be made in coin, with all the dangers of highway robbery. the financial revolution of the 1690s meant that the merchant elite could invest in government bonds or company bonds at 5-6%, or london leases at 10%, as opposed to income from landed estates, which was under 3%. shareholders were no longer personally liable for company losses. interest on loans was no longer considered sinful as long as it was not oppressive. the greater ability to borrow spurred the growth of capitalism. all brokers and stock jobbers in london and westminster of bank stock, bank bills, shares and interests in joint stock must be licensed by the mayor, which shall necessitate their taking an oath to exercise their office without fraud or collusion to the best of his skill and knowledge as of 1697. this is to avoid the collusion of fixing values to their own advantage. compilations of tables of mortality originated the science of life-statistics. this made life insurance possible. but it was administered by ad hoc offices rather than companies and was not reliable in making payments. william petty made a statistical study of economics and determined that the basic values of an economy derive not from its store of treasure, but from its capacity for production. trade was studied empirically by statistics by new offices such as the inspector general of imports and exports. charles instituted a hearth tax of 2s. per year in 1662, with constables and officers authorized to verify the number of hearths and stoves in houses. it was repealed in 1688 because it could not be enforced except by exposing every man's house to be entered and searched at pleasure by persons unknown to the people, which was oppressive and a badge of slavery. by bribes, charles built up a body of support in parliament which could be relied upon for a majority. they came to be called "tories" by their opponents. "tory" had been a term of abuse for irish catholic bandits. the tory and whig groups were known by their disagreement over the authoritarianism of the crown. the tories were sympathetic to the doctrine of divine right and favored a doctrinally high church. the tories represented landed property and the established church, and usually wore blue in contrast to the purple of royalty. many royalists became tories. the whigs refused to accept the sacrosanct character of the monarchy. the whigs opined that government depended upon consent of the people and that the people had a right of resistance. they subordinated the crown to parliament. the whigs represented the dissenters and the mercantile classes, and often wore red. many former puritans became whigs. "whig" had been a term of abuse for scots presbyterian rebels and horse thieves. the gout and venereal disease were common among political leaders. a primitive condom just introduced to the aristocracy from france helped deter syphilis, but was uncomfortable and unreliable. under charles ii, the treasury as a supreme financial body separated from the exchequer as a depository of revenue. a gold guinea coin was issued. from 1690, government policy was controlled by specific appropriations. money bills had to originate in the commons, and could not be amended by the house of lords. boards became independent of the king's privy council and answerable to the secretary of state. in the 1680s, charles compelled some of the livery companies in london to give up their charters to him and he called in many corporation charters of boroughs whenever some light excuse could be found to justify it. this was done by the use of the writ of quo warranto [by what authority] before a court. in london he had the tory mayor revive an ancient custom of selecting a sheriff by drinking to him at the annual feast. two tory sheriffs were installed into office. all these actions gave the king a voice in selection of the officers of london and boroughs, since royal commissioners would then determine who the officers would be. this was to assure london's representation in parliament by crown loyalists as london had been whig. it also allowed influenced selection of sympathetic jurors. criminal seditious libel was brought into the common law courts in 1664, when benjamin keach was tried for writing a book containing contradictions of the doctrine of the established church. he wrote against infant baptism and asserted that laymen might preach the gospel. the justice intimidated the jury to find him guilty. he was sentenced to be fined, to spend two hours in the pillory in two successive weeks, and his book to be burned before his face. he was to be imprisoned until he found sureties for his good behavior and renunciation of his doctrine and for his future appearance in court. juries were loath to find anyone guilty of seditious libel. james ii succeeded charles ii to the throne and fostered roman catholicism by appointments and by attempting to suspend laws unfavorable to catholics. he commanded all bishops to read in the churches his declaration of indulgence exempting both catholic and protestant dissenters from all penal statutes based on religion. seven bishops refused to obey and jointly petitioned him, stating that his action was illegal according to parliament. he prosecuted them for seditious libel in the petition. the jury found them not guilty. james discharged the two justices of the five who had rejected the seditious libel doctrine which had been created by the star chamber court. this roused the whigs and tories in turn to discharge him by joining in inviting protestants william of orange and mary to take the throne in his place. james was effectively chased out of england by william's advancing army in the glorious revolution of 1688-9, which took away the powers of final authority from the king, but without transferring them to any other body. a "bill of rights" stated that 1. -the king may not suspend laws or dispense with them without consent of parliament. 2. -the establishment of a court of commissioners and like bodies for ecclesiastical causes is illegal. 3. -the king may not levy money or extend an authorized levy without consent of parliament. 4. -subjects have a right to petition the king without prosecution. 5. -the king may not raise or keep a standing army within the country in time of peace without the consent of parliament. 6. -protestants may have arms for their defense as allowed by law. 7. -the elections of members of parliament should be free. 8. -the freedom of speech or debates or proceedings in parliament should not be impeached or questioned in any court or place outside of parliament. 9. -excessive bail should not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted (so no more men were whipped to death). 10. jury selection should not be tampered with, and jurors who try men for high treason should be freeholders. 11. all grants and promises of fines and forfeiture of particular persons, before conviction, are illegal and void. 12. parliament should be held frequently for redress of grievances and for the amending, strengthening, and preserving of the laws. 13. all protestants may freely exercise their religion and the king will maintain the protestant religion and the law and liberty of the realm. the right of the peoples' representatives to select and depose the king and to change the order of succession was established. there was no divine right or hereditary right to the crown. an english monarch was created by an act of parliament. the king still called and dissolved parliaments, except that parliament continued for six months after the death of a king. from 1689, parliament sat every year. freedom of speech for members of parliament was established by a resolution overturning a king's bench felony conviction of sir john elliot. by the act of settlement of 1701, no officer or pensioner of the king could be a member of parliament. all resolutions by the privy council had to be signed by the members consenting to them. no one born outside the realm could be a member of the privy council or of parliament, or could have any civil or military office or place of trust, or any grants of land or tenements from the king. justices served during good behavior instead of at the pleasure of the king. after the glorious revolution, tories tended to accept of the whig principles of limited constitutional monarchy instead of rule by divine right. under william and mary, the ministers were first chosen by them but could be impeached by the commons and then removed by the parliament. the commons removed anyone who disagreed with them as soon as he made a mistake. but the king could pardon anyone convicted by parliamentary bill of attainder. this was inconsistent, so no one was allowed to plead pardon by the king in an impeachment by the commons. thus parliament gained control of who would be ministers. the glorious revolution favored the capitalists and the commercial magnates even though it had been started by the landed families, with whom they now intermarried. there were companies in the fishing, silk, baize [a coarse wool], sugar, rope, paper, iron, hardware, cutlery, gunpowder, saw milling, and pottery trades. these industries for manufacturing were organized on capitalist lines rather than being subject to guilds. that is, production was controlled by men with money and the means of manufacture. the largest pottery workshops employed about six men. one man shaped the pots, another made the handles and put them on, while the others did the decoration, the glazing, and the firing. new companies could be formed without royal or parliamentary consent. regulated companies declined. there were no more commercial monopolies. the merchant adventurers lost their last monopoly privileges and their entrance fees were abolished. their method of limiting the volume of their exports of english cloth to germany to keep up prices was obsolete. now they tried to capture the market by selling cheap. there were more joint-stock companies and on a larger scale. they also no longer restricted output to keep prices high, but geared to export many inexpensive goods. drinking of gin, which had first been made by a flemish physician, became popular under king william, who was dutch. the year of his accession, the gin monopoly ended. from the mid-1500s to 1700, coal production increased fourteen times. sir ambrose crowley, an iron maker with coal works, established disability and medical benefits and pensions for his workers. the capitalist organization of the mining, glass manufacture, salt, soap, wire and other monopolized industries was made possible only by government support. salt and glass manufacture expanded. glass drinking vessels were in common use. mirrors of blown plate glass were manufactured in england. in 1670, vauxhall glass works were opened with workmen brought from venice to blow their fine glass and make mirrors. some plate glass by casting was imported. plate glass was a large and strong glass piece, which was formed by the liquid glass being poured on a table. this glass was not distorted, so mirrors could be made perfectly reflective. then plate glass for coaches, mirrors, and windows became manufactured in england; this new industry was organized on capitalist lines. the domestic or "putting out" system came into use. in this system, the worker usually owned his own machinery and the capitalist owned the material, which he put out to the worker at home. the merchant manufacturer bought raw wool and had it carded, spun, woven, fulled, and dressed at his own expense. some farmers became spinners in the winter when outside work was impossible. the manufacture of nails was also done by this system. accordingly, the guilds and municipal corporations in towns ceased to control the recruiting, conditions of work, and pay of industries. only a quarter of 200 towns had any organized guilds at all. the growing town of birmingham was not a chartered borough, so never was encumbered with guild regulations. overall, the guild and apprentice regulations were effectively enforced only in agriculture work. artisans became known as tradesmen. work was usually irregular, some seasonal. in bad years, when a worker had to borrow money, he used work tools, such as his loom, as security. in this way, one's work tools often became the property of a merchant. some merchant clothiers also owned a fulling mill and a shop where the cloth was sold. the capitalists first became owners of the materials, then of the implements, and then of the work places. but production was still confined to the known wants of its habitual market. men used to working at home were generally not inclined to go to work in a factory. so there was an assortment of unskilled factory labor, such as country people driven from their villages by the growth of large estates, disbanded soldiers, and paupers. they had to be taught, trained, and above all disciplined. smiths used trip hammers powered by watermills which turned axles with cams on them. they made iron gates, fences, balconies, and staircases with hammer, anvil, and chisel. cast iron was made by running liquefied metal into molds. this was harder but more brittle than the tough but malleable wrought iron. tinkers went from house to house to repair metal items such as pots and pans. the east india company had about half the trade of the nation. its shares were frequently bought and sold. it responded to anger over its semi-monopoly status by granting liberty to all english subjects below the age of forty to live in its indian settlements and to trade practically everywhere. bombay, india became subject to the east india company. charters gave the east india company the right to coin money, to exercise jurisdiction over english subjects, to levy taxes, to build and command fortresses, to command english and indian troops, to make peace and war, and to enter into alliances with indian rulers. the company always paid high dividends and the market price of its shares generally rose. 100 pound stock was worth 130 pounds in 1669, 245 pounds in 1677, 280 pounds in 1681, 360 and even up to 500 pounds in 1683, and then fell to 190 pounds in 1692. in 1693 a new charter for the company included loss of monopoly status by resolution of the commons. with this resolution, parliament assumed the right of regulating commerce, now no longer the king's province. thereafter the commons regulated trade with india and determined who could participate in trade there. political issues developed, which initiated corruption at elections by entertainment and bribes to candidates, which were later proscribed. the trade opened up to many more traders and investors. ordinary investors came to include women and quakers. the stock exchange was incorporated about 1694. exports included grain, silk, metal wares, foodstuffs, lead, and tin. cloth and manufactures were exported to america. dyeing and dressing of cloth became the norm and undressed cloth exports fell sharply. imports included linen; flax; hemp; timber; iron; raw, thrown, and woven silk; wine; brandy; fruit; coffee; chocolate, served as a drink or used in cooking; cauliflower; and oil. from america came molasses, sugar, tobacco, and dyes. sugar was in great demand for tea, coffee, and chocolate. the east india company imported calico, silk, pepper, spices, china tea, potions, and saltpeter. tonnage of english shipping doubled by 1688 exports and imports increased 50% by 1700. when there was a surplus of grain, it was exported. about 1696, the king set up a board of trade of eight paid members and great officers of state, who nominally belonged to it, and a staff. this was to achieve a favorable balance of trade. for instance, it imposed tariffs to protect internal markets and put restraints on imports of goods producible in the country, e.g. live cattle, dairy products, and woolen goods. it also restricted the export of raw wool. england led the way in protectionist measures. parliament required an oath of allegiance to the new sovereigns william and mary from all those in public functions, including the clergy. by extending this rule to the clergy, parliament asserted a supremacy of parliament over the church. it also asserted a supremacy over the king by requiring all monarchs to take a coronation oath promising to govern according to the statutes, laws, and customs of parliament, to make judgments with law and justice in mercy, and to maintain the protestant religion established by law. england competed with other nations for land in the new world. carolina, named for charles ii, was colonized for commerce in 1663. the episcopal church, an analogue of the church of england, was established there by law. the whole coast became english after war with the netherlands gave new york, named for charles ii's brother the duke of york, and new jersey to england in 1667. presbyterians and baptists fled from religious tests and persecutions in england to colonize new jersey. for free passage to the english colonies, people became indentured servants, agreeing to serve the master of the ship or his assigns with a certain kind of labor for a term of a few years according to a written contract made before departure. also, various statutes made transportation to any part of america available to any person who would pay for his transportation, for a term of years, usually seven, as a new possible penalty for offenses. in 1636, harvard college was founded in new england to advance literature, arts, and sciences, as well as to train ministers. some american colonists sent their sons to be educated at the inns of court in london. in 1682, quaker william penn, son of an admiral, founded the colony of pennsylvania for quakers in a "holy experiment" in political and religious freedom. the king had granted proprietary rights to this land to him to discharge a crown debt to his father. when penn refused to take off his hat before king charles and asked why charles took off his own, charles, unruffled, replied that "it's the custom of this place that only one man should remain uncovered at a time". the pennsylvania charter of 1701 went beyond magna carta and england's law in guaranteeing right to counsel and giving a right to defendants to summon witnesses in all criminal cases. it gave penn absolute authority and he established liberty of conscience, i.e.freedom of religion, and freedom from arbitrary arrest. in 1751, some quakers founded a small hospital in pennsylvania as an asylum for the insane, where they would be treated humanely. proprietary colonies, in which an individual or syndicate held under the crown a sort of feudal overlordship, were founded in america: namely, virginia, maryland, carolina, new york and new jersey in 1663, and pennsylvania and delaware in 1682. new hampshire was made a royal province in 1680 to cut off the expansion of massachusetts, which had been avoiding the trade laws. these colonies were distinguished from the corporate colonies of massachusetts, plymouth, connecticut, and rhode island, which made their own arrangements for internal government without a royal executive. charles persuaded the chancery court to declare the charter of massachusetts void; it was given a new charter in 1691 which made it a royal province. new york was made a royal province in 1691. maryland's proprietor gave way to a royal governor in 1692. soon all colonies except rhode island, connecticut, pennsylvania were royal provinces, with governors nominated by the crown. this bringing of union to the colonies was done for maintenance of order, to coordinate defense, and to enforce trade laws. in 1670, the hudson's bay company was incorporated to engage in fur trade with indian trappers in the hudson bay and to find a northwest passage to china. in 1701 the founding of the "society for the propagation of the gospel in foreign parts" by the church of england created many missionaries in the colonies, where they called their churches "episcopalian". increase mather and his son cotton mather were puritan ministers in colonial boston. increase was for a time the president of harvard college and participated in obtaining the new charter of colonial massachusetts of 1691. he and his son tried to maintain the principles of the puritan founders of massachusetts, which included the theories of diabolical possession and witchcraft. but the thought of presbyterians, anglicans, and baptists became influential also. in 1692 in the small town of salem, massachusetts, some hysterical girls showing strange spasms and sounds charged they had been bewitched by certain other residents. victims were deceived, flogged, or tortured into forced confessions and then excommunicated from the church. they were then hanged and their property confiscated. one man endured being pressed to death for refusal to plead so that his property would be inherited by his family rather than confiscated due to being convicted. eventually, some prominent citizens including judges were accused. then the more thoughtful people began to doubt the whole phenomenon and admitted error. the excommunications were revoked. cotton mather came to accept newton's science and advocated inoculation. he encouraged puritanism into a simpler piety and charity. this influenced american protestantism toward a generalized concern with good works, morality, and social leadership. the law treason to the king is to compass, imagine, or intend death or any bodily harm tending to death, or maiming or wounding, or imprisonment, or restraint as well as trying to depose him or levy war against him. also included is printing, writing, preaching, or malicious speaking. traitors shall suffer death and forfeiture as in high treason. the fine for having, buying, or selling clipped coins is 500 pounds, one-half going to the informer, and one-half going to the king. the offender shall also be branded in the right cheek with the letter "r". he shall be imprisoned until he pays the 500 pounds. no hammered coins are lawful. anyone except a smith in the king's mint making tools or presses or other machines that can make counterfeit coins or having such which were stolen from the mint shall be guilty of high treason. any malicious and willful burning or destroying of stacks of hay, grain, or barns, or killing any horses, sheep, or cattle at nighttime shall be felony and punished by transportation to the american colonies for seven years. any person apprehending a thief or robber on the highway will be rewarded 40 pounds from the local sheriff, to discourage the many robberies and murders which have made travel dangerous. also, executors of persons murdered while trying to apprehend a robber shall have the reward. anyone killing, hurting, or taking away deer from any forest or park or other ground without consent of the owner or custodian shall pay a 20 pound fine. this was later increased to 20 pounds for hunting deer and 30 pounds for wounding or killing deer, with the pillory for one hour on market day and gaol for a year without bail for those who couldn't pay. any person privately and feloniously stealing any goods, including horses, by day or night, in any shop, warehouse, coach stable, or stable, whether there is a break-in or not, and whether or not the owner is present, or anyone assisting or hiring such person may not have benefit of clergy. any person who apprehends and prosecutes such person is excused from having to serve in parish and ward offices. an offender being out of prison who informs against two other offenders who are convicted is to be pardoned. any person convicted of theft or larceny and having benefit of clergy is to be burnt in the cheek nearest the nose instead of on the hand. when a bill of exchange drawn to at least five pounds is not paid on demand at the time it is made payable, the person who accepted it may make a protest in writing before a notary public, which shall be served on the maker of such bill, who must pay it and all interest and charges from the date of the protest. but if a bill of exchange is lost or miscarried, another shall be given in its place. no one may take more than 6 pounds in interest for a 100 pound loan. persons seeking election to parliament may not give or promise money, meat, drink, entertainment, present or gift to any elector. because the gaols were full of people in debt due to the late unhappy times such as the london fire, all prisoners for debt were released upon taking an oath that they had no property over ten pounds nor had disposed or conveyed property to defraud creditors. creditors not wanting them released had to contribute to their maintenance in gaol. any sale of land or lease or estate of freehold or copyhold shall be in writing and signed. an interest in land given orally shall have only the force of estates at will. all contracts for sale of goods or merchandise for the price of at least 10 pounds shall be in writing and signed by the parties or shall be accompanied by part payment or partial acceptance of the goods. this is to deter fraud. this statute caused many small freeholders, including yeomen, who paid rent by custom to be dispossessed. mortgagees can hold the land of any mortgagor who borrows money upon security of the land or obtains another mortgage without prior notice to the initial mortgagee. the mortgagor has six months to pay off the mortgage and all interest and charges or vacate the land and lose his equity therein. but a widow's dower will not be affected if she did not join with her husband in the mortgage. if rent is not paid in a reasonable time, the renter's goods and grain may not only be distrained, but sold. one coparcener [one person of two or more persons who inherit as co-owners of land] of a joint tenancy [land held that descends to the heir of a co-owner who dies] or tenancy in common [land held that accrues to the surviving co-owner if one dies] may have a court partition the property without the presence of other coparceners, because such coparceners are often difficult to find. this is to avoid wasting of land lying uncultivated and unmanured. after the intestate death of a father of any sons or daughters without wives or children of their own in the life time of their mothers, the mother and every brother and sister shall share equally except the customs of london and york shall not be affected. administrators have to make an inventory. they have to account on request by an interested person. they must be bonded by two sureties. executors and administrators of estates of deceased persons must pay the debts of the deceased person rather than waste or convert the goods and chattels to their own use. creditors may recover their debts from heirs or devisees of the will of a debtor. men gone beyond the sea who could not be accounted for were deemed dead after seven years, so their life estates could be terminated. whereas lawful games are not to be used as constant callings for a livelihood, and young people are deceived and debauched and their money taken, anyone "winning" money by deceitful or fraudulent gambling shall forfeit three times his "winnings". the making or selling of fireworks is forbidden or else forfeit 5 pounds. firing or throwing such from one's house onto or across the street is a common nuisance with a penalty of 20s. this is to avoid the loss of life and of eyes. no more than 20 people may petition the king nor more than 10 people may assemble to present a petition to the king, because more has been tumultuous and disorderly. anyone may without fee set up a hemp business including breaking, hatchelling [separating the coarse part and broken pieces of the stalk from the fine, fibrous parts by drawing the material through long iron teeth set in a board], and dressing it; or a flax business, including making and whitening thread, spinning, weaving, making, whitening, or bleaching hemp or flax cloth; making twine or nets for fishing or treating cordage for tapestry or hangings, because the daily importation of such has in effect taken the work from the poor and unemployed of england. no sheep, wool, woolfells, shearlings, yarn, fuller's earth, or fulling clay may be exported as has secretly been done, so that the poor of the realm may have work. fishermen may sell their fish to others than fishmongers at billingsgate fish market because the fishmongers have forestalled the market and set their own prices. the buyers of such fish may resell them in any other london market by retail, except than only fishmongers may sell in shops or houses. no tanned or untanned skin or hide of any ox, steer, bull, cow, or calf may be exported because the price of leather has risen excessively and leather workers can't get enough raw material to carry on their trade and because poor people cannot afford leather items they need. the newly incorporated company of silk throwers (drew the silk off the cocoon) employs many of the poor, but others practice the trade, so an apprenticeship of seven years is required to practice the trade in the realm. winders or doublers who purloin or embezzle and sell silk from the thrower who employs him and the buyer of such silk shall make such recompense as ordered by a justice of the peace or be whipped or set in the stocks for the first offense. the regulation of the silk throwers company restricting the number of spindles to be worked at one time is voided because it has taken livelihoods away and caused foreign thrown silk [silk twisted from cocoons into thread] to be imported. buttons on garments must be made of silk, mohair, gimp, and thread and by needle to keep employed the many throwers, twisters, spinners, winders, and dyers preparing the materials for these buttons. no button may be made of cloth or wood. when a bill of exchange drawn to at least five pounds is not paid on demand at the time it is made payable, the person who accepted it may make a protest in writing before a notary public, which shall be served on the maker of such bill, who must pay it and all interest and charges from the date of the protest. but if a bill of exchange is lost or miscarried, another shall be given in its place. no one may take more than 6 pounds in interest for a 100 pound loan. persons seeking election to parliament may not give or promise money, meat, drink, entertainment, present or gift to any elector. because the gaols were full of people in debt due to the late unhappy times such as the london fire, all prisoners for debt were released upon taking an oath that they had no property over ten pounds nor had disposed or conveyed property to defraud creditors. creditors not wanting them released had to contribute to their maintenance in gaol. retailers of wine may not add to imported wines cider, honey, sugar, molasses, lime, raisin juice, or herbs. butter sold must be of one sort and not contain bad butter mixed in with good butter. butter pots must bear the name or mark of their potter. salt may be sold only by weight, to avoid deceit by retailers and wrong to buyers. no tobacco maybe grown in england because the colonies would be discouraged from growing it and the king would not receive customs from it. no goods are to be imported to or exported from america, asia, or africa except in english ships, with masters and 3/4 of the mariners englishmen. no manufacture of europe may be imported into any colony or territory except shipped from england in english ships manned by englishmen. as of 1672, if bond is not given for colonial exports of sugar, ginger, tobacco, cotton, indigo, cacao nuts, or fustic [tree that yields a yellow dye] and other dyewoods going to england, a duty must be paid. as of 1696, no colonial goods are to be imported or exported or carried from one colony to another, except in ships owned and built in england, ireland, or the colonies with the masters and three fourths of the mariners from such places. these navigation acts were strictly enforced. only persons with lands and tenements or estate worth over 100 pounds per year or having a lease of at least 99 years worth 150 pounds per year and owners and keepers of forests or parks may have any guns, bows, greyhounds, hunting dogs such as setting dogs, snares, or other hunting equipment. these persons may kill hare, pheasants, partridges, and other game. gamekeepers authorized by justices of the peace may search houses and outhouses and seize unlawful hunting equipment. if hunting equipment or game is found in a house without good account to the justices of the peace, they shall impose a fine of 5s. to 20s., one-half going to the informer and one-half going to the poor of the parish. army officers or soldiers who desert or mutiny shall suffer death or such other punishment as decided by a court martial of senior officers rather than the usual form of law, which is too slow. seamen not showing up on board after notice shall serve six months without pay, but shall not suffer as deserters. seamen do not have to perform service in the army. pirates may be punished by death and loss of all lands and chattels. any person aiding, advising, or concealing pirates may be likewise punished. officers and seamen killed or wounded in the defense of a ship or who seize or destroy pirates may be paid by the owners an amount up to 2 pounds per 100 pounds of freight as determined by a group of disinterested merchants and the judge. the amount due to a man killed will be paid to his widow and children. this is to be done when the ship arrives in port. any person who informs of any combinations or confederacies planning to run away with or to destroy a ship shall be rewarded by the commander or master of such 10 pounds for a ship 100 tons or under, and 15 pounds for a ship over 100 tons. the trial may be in england or the american colonies, whose authorities may issue warrants for arrest of alleged pirates. deserters from ships, because they often become pirates, shall forfeit all wages. masters forcing any man fit to travel to stay on shore or willfully leaves him behind shall suffer three months in prison without bail. persons may mine for ores on their own land, but must turn it over to the king who will give compensation for it, including gold, silver, copper (16 pounds per tun), lead (9 pounds per tun), tin (40s. per tun), and iron (40s. per tun). by statutes of 1660 and 1662, when goods have been carried off ships without customs being paid, the chief magistrate of the place where the offense was committed or the adjoining place, or the lord treasurer, or a baron of the exchequer may, upon oath, issue out a warrant to any person to enter, with the assistance of a sheriff, constable or other public official, any house, shop, cellar, warehouse, or room in the day time where the contraband goods are "suspected to be concealed", and in case of resistance, to break open doors, chests, trunks, or other packages and to seize such goods, provided that if the information whereupon any house is searched proves to be false, the injured party shall recover his full damages and costs against the informer by action of trespass. this was extended to the colonies in 1696. the penalty for cursing or swearing by a servant, day laborer, soldier, or seaman is 1s. for others, it is 2s. the fine is doubled for the second offense, and tripled for the third offense. if an adult offender can't pay, he shall be put in the stocks for one hour. if a child offender can't pay, he shall be whipped by the constable or by a parent in the presence of the constable. the equity courts are now conceding limited proprietary rights to married women by enforcing premarital settlements or trust arrangements that designate certain property as a wife's separate estate and exempt it from control by the husband. such protective devices generally reflected a father's desire to shield his daughter from poverty and benefited only the landed aristocracy in practice. also, husbands are not allowed to punish and beat their wives as before. but the lower rank of men were slow to give this up. a wife could have the security of the peace against her husband. he could restrain her liberty only for gross misbehavior. in 1685, the courts ruled that apprenticeships were necessary only for servants hired by the year, thus exempting most wage laborers. there were many variations in religious practices for statutes to address. the quakers and baptists were opposed to any state church. the independents and presbyterians accepted the idea of a state church. the members of the established church and roman catholics adhered to their version the state church as they had experienced it in the past. atheism had a bad reputation. in 1662, the jews established the first synagogue in london. the privy council recognized their religious status as long as they were peaceful and obeyed the laws. they engaged in pawn-broking as well as money-lending. there were various statutes enacted over the course of time regarding religion, as follows: all ministers, school teachers, mayors and other town officials, including magistrates, were required to take the oaths of allegiance and supremacy [of the king over the church] or be removed from office. a great number of people refused to come to their parish church or other public place where common prayer and sacraments were administered and the word of god was preached according to the established church. the morning and afternoon sunday services with sermons, sometimes by guest preachers, continued. so factions and schisms developed. in response, the king changed the book of common prayer and its prayers were required by statute in 1662 to be read by some priest or deacon in all the churches and places of public worship wherever and whenever there was any preaching or lecturing. attendance at one's local parish church was never again required. attendance at the established church of england was never again required. nor was preaching or lecturing constrained. instead, a statute was passed in 1677 that: every person shall be pious and exercise religion publicly and privately on sunday. no work may be done or goods sold or else forfeit 5s. or the goods respectively. no one may travel or else forfeit 5-20s. in a further statute of 1688, because some ease to scrupulous consciences in the exercise of religion may be an effectual means to unite protestant subjects in interest and affection, protestant nonconformists who took the oaths, or declaration in the case of quakers, and a declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass were declared not liable for punishment in any ecclesiastical court by reason of their nonconformity to the church of england, except protestant dissenters meeting behind locked doors. but payment of tithes and performance of parish duties were still obligatory. non-conformist preachers had to subscribe to the tenets of belief listed in the first eighteen articles of religion, but were exempted from the articles on expounding inconsistencies in scripture, the traditions of the church, homilies, and consecration of bishops and ministers of the elizabethan statute and the statute on uniformity of prayers and sacraments of charles ii. as of 1665, no nonconformist minister, i.e. one who endeavored any alteration of government either in church or state, was allowed to live or visit within five miles of any corporate town or any place where he had acted as minister or else forfeit 40 pounds. persons not frequenting the established church were not allowed to teach in any public or private school or else forfeit 40 pounds. by statute of 1670, anyone at least sixteen years old who is present at any assembly, conventile [private meeting of religious dissidents to pray and expound scripture], or meeting under pretence of any exercise of religion in other manner than according to the established church of england at which there are at least five persons present shall be fined 5s. for the first offense and 10s. for the second offense. this does not include members of the same household meeting in their home. anyone who preaches or teaches at such a meeting shall pay 20 pounds for the first offense, and 40 pounds for further offenses. the householder who permits such a meeting shall pay 20 pounds. a justice or justice of the peace or chief magistrate may break open doors and enter by force any house or other place where they have been informed of any such meeting and take persons there into custody for prosecution. this is to discourage the growing of dangerous seditious persons under pretence of tender consciences. religious nonconformity continued especially among the humble people. the penal statutes caused hundreds of these nonconformists to be put in gaol. from time to time, the king would release them and suspend these laws. sometimes, charles ii allowed dissenters to meet in private for worship if they got a license from him. religious gatherings grew in numbers, size, and geographical extent. dissenters were then allowed by statute to meet behind locked or barred doors. but they had to pay tithes and could be prosecuted in the ecclesiastical courts for not doing so. by statute, all congregations and assemblies for religious worship had to register with the local bishop or archbishop. disturbers of religious worship were required to find two sureties for the amount of 50 pounds. quakers were active in the countryside. they were about one tenth of the population and did not believe in a state church. there were some quakers schools and some quaker workhouses to give work to the poor. for the reason that they met together in large numbers to the great endangering of public peace and safety and to the terror of the people, and because they had secret communications and separated themselves from the rest of the people and from the usual places of worship, a statute was passed in 1662, that any quakers who assembled to the number of five or more under the pretense of unauthorized religious worship and any person maintaining that taking an oath before a magistrate was unlawful and contrary to the word of god or refusing to take a required oath was to forfeit 5 pounds for the first offense or be imprisoned for 3 months if he couldn't pay. for the second offense, the penalty was 10 pounds or imprisonment for 6 months with hard labor. the third offense required abjuring the realm or being transported to a plantation of the king beyond the seas. the policy of charles ii was to allow quakers to meet undisturbed, to keep their hats on before magistrates, and to not come to the parish church. but this policy was only partially adopted in the country. from 1689, by statute, the quakers were allowed to affirm or declare instead of making the customary oath. many presbyterians became unitarians, who rejected the trinity of "father, son, and holy ghost" and doubted the divinity of jesus, but accepted revelation. this statute was then passed in 1697: any person having been educated in or having at any time made profession of the christian religion who, by writing, printing, teaching, or advised speaking, denies the holy trinity, asserts that there is more than one god, or that the bible is not of divine authority, shall be disabled for any ecclesiastical, civil, or military office. the penalty for a second offense is being disabled from suing or pleading any action in any court, being guardian of any child, or executor or administrator of any estate, or receiving any legacy or deed of gift and imprisonment for three years without bail or mainprize. catholicism was always disfavored. catholic priests were executed with little evidence. at times, charles commuted the death penalty for them to banishment. sometimes there were effigies of the pope burned in the streets. such burnings were later banned. at times charles allowed catholics to attend mass. by statute of 1672, all civil and military officers and king's officials must take the oaths of supremacy and allegiance and take the sacrament of the established church of england or be incapable of office. they also had to make a declaration that they believed that there is not any transubstantiation in the sacrament of the lord's supper, or in the elements of bread and wine, when they were consecrated. this is to prevent dangers from papists. as of 1678, no one may be a member of parliament if he has refused to take the oaths of allegiance and supremacy and the declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass. papists were made to pay higher taxes. every temporal and spiritual person, corporation, and guild had to pay taxes to subsidize the king in the amount of 2s.8d. for every pound's worth of personal property and money. but papists had to pay 5s.4d. for such. persons and corporations having land worth at least 20s. yearly, had to pay 4s. for every pounds' worth. but papists and aliens had to pay 8s. for such. but charles' successor, king james ii was catholic and gave many offices to catholics. this prompted a reaction against papists and more statutes restricting them. after james ii was chased out of england, a statute of 1688 required suspected papists in london to make a declaration that they were not catholic, did not adore the virgin mary or any saint, did not go to mass, or else stay ten miles outside of london. excluded were tradesmen and manual workers, who had only to register. all papists had to forfeit their arms and any horse worth more than 5 pounds. also, no king or queen or spouse of such could be a papist, but had to make the same declaration as members of parliament, and join in the communion of the established church of england. as of 1696, a person who was serjeant at law, counsellor at law, barrister, advocate, attorney, solicitor, proctor, clerk, or notary had to take the oath of supremacy and allegiance. as of 1698, papists who kept a school or tried to educate the young were threatened with perpetual imprisonment. also, popish parents were prohibited from forcing their children who were inclined towards protestantism to become catholic by refusing them suitable maintenance. as of 1699, a reward of 100 pounds was offered to any person who apprehended a popish bishop, priest, or jesuit saying mass. also, no papist was allowed to buy land. judicial procedure after the restoration, all legal decisions of the commonwealth and protectorate were confirmed subject to a right of appeal. the star chamber was not restored, and parliament assumed its control of the press. the king's bench succeeded to most of the star chamber's jurisdiction. no longer could the privy council influence criminal cases and the general supervision of legal processes through the star chamber. the high commission court was not restored, but church courts were, but with depleted powers. they accepted subordination to the common law courts. because the church's administration was inefficient and corrupt and its punishments inadequate, they gradually lost their power to the common law justices and justices of the peace. they had virtually no authority over laymen. they could still punish heresy, but lost jurisdiction over the law of libel and slander, which then were transformed by the civil courts, and over prostitution and scandalous lewdness. local ordinances for suppression of brothels, which were run by madams, were founded on breach of the peace. in 1678, the death sentence was taken away from the church courts. in 1697, church sanctuary was abolished. the county courts faded into insignificance, as the justices of the peace took on more jurisdiction. in 1668, new justices were issued patents with "at pleasure" instead of "during good behavior" describing their tenure. charles ii and james ii frequently dismissed justices not favorably disposed to the crown. in 1697, they were to have fixed salaries instead of the profits of justice. by statute of 1701, justices' commissions were to be made with an established salary determined by parliament and a tenure to last during good behavior. they could be removed only by the address of both houses of parliament. this gave them independence from the king. their tenure lasted for the life of the monarch. as of 1679, no man could be held in prison but on a charge or conviction of crime or for debt. every prisoner on a criminal charge could demand as a right from the court of the king's bench the issue of a writ of habeas corpus which bound his gaoler to produce the prisoner and the warrant on which he was imprisoned for review as to legality. this forced trials to be speedy, which they had not hitherto been. now it was impossible for the crown to detain a person for political reasons in defiance of both parliament and the courts, as charles i had done. the writ was suspended in times of war and domestic unrest: 1689, 1696, 1708. in 1670, william penn was arrested for sedition for delivering a sermon in london, contrary to the statute that only the church of england could conduct meetings for worship. the jurors would not convict him, so were gaoled and fined by the justices. the jurors filed a writ of habeas corpus in the court of common pleas, which held in their favor. thereafter the english jury had full independence to decide verdicts. by court decision of 1679, jurors were held not to be responsible to the justice for their verdict. after 1688, hearsay was inadmissible as evidence, which coke had recommended. the old system of original writs was abandoned, and the general concept or a wrong to person or property took its place. a person who was sergeant at law, counselor at law, barrister, advocate, attorney, solicitor, proctor [supervisor of students taking an eexam], clerk, or notary in the courts had to take the required oaths of allegiance and supremacy. as of 1692, persons outlawed could appear by attorney as well as in person to argue reversal of such outlawry, except in cases of treason and felony. as of 1696, persons accused of high treason where there might be corruption of the blood or for misprison [concealing knowledge] of such treason had to be taken before a grand jury for indictment within three years of the offense. those indicted or outlawed for such were given a copy of the whole indictment, but not the names of witnesses, at least five days before trial in order to prepare their defense. they could have a copy of the panel of jurors at least two days before trial. they could be represented in their defense by not more than two counsel learned in the law and assigned by the court. their counsel had free access to them at all reasonable hours. they could make proof through lawful witnesses under oath. in a trial of commoners for their lives, a jury of twelve freeholders had to all agree on acquittal or conviction. in a trial of a peer, the others peers in parliament determined the outcome by a majority vote. jurors were required to have at least 20 pounds income from freehold land or rents in fee, fee tail, or for life. this increase in the quality of the jury enabled it to better discern the issues in dispute. jury sympathy was determined by the sheriff who chose the jury. so if a sheriff was popularly elected, as in london, he chose jurors who favored individual and corporate liberty. if the king selected the sheriff, he chose tories, who supported the crown. issues of bastardy or lawfulness of marriage had to be tried by a jury. the civil suit of trespass on the case branched into assumpsit [a promise], trover [to recover goods converted to the use of another], deceit, negligence, and libel and slander. the latter supplements bad words punished by the local courts and defamation punished by the church courts. trover becomes the normal mode of trying the title to personal property and goods as the courts oblige the defendant to answer the charge of conversion without permitting him to dispute the loss and finding of the goods by the plaintiff. this is an example of the initiation of a suit by a writ for trespass on the case: "the king to the sheriff &c. as in trespass to show: wherefore (e.g.:___) he fixed piles across the water of plim along which, between the humber and gaunt, there is a common passage for ships and boats, whereby a certain ship, with thirty quarters of malt of him the said a, was sunk under water, and twenty quarters of the malt of the price of one hundred shillings perished; and other wrongs &c. as in trespass." this is an example of a writ for trespass on the case in assumpsit: "the king to the sheriff greeting &c. as in trespass to show: wherefore whereas he the said x undertook well and competently to cure the right eye of the said a, which was accidentally injured, for a certain sum of money beforehand received, he the same x so negligently and carelessly applied his cure to the said eye, that the said a by the fault of him the said x totally lost the sight of the said eye, to the damage of him the said a of twenty pounds, as he saith, and have there &c. wherefore whereas he the said x undertook to make and build three carriages for conveying victuals of him the said a to parts beyond the sea for a certain sum of money beforehand received, within a certain term between them agreed; he the said x did not take care to make and build the carriages aforesaid within the term aforesaid, by which he the said a hath wholly lost divers his goods and chattels, to the value of one hundred marks, which ought to have been conveyed in the carriages aforesaid, for want thereof to the great damage of him the said a as it is said: and have there &c." this is an example of a writ for case on indebitatus assumpsit: "the king to the sheriff &c. as in trespass to show: for that, whereas the said x heretofore, to wit (date and place) was indebted to the said a in the sum of for divers goods wares and merchandises by the said a before that time sold and delivered to the said x at his special instance and request, and being so indebted, he the said x in consideration thereof afterwards to wit (date and place aforesaid) undertook and faithfully promised the said a to pay him the said sum of money when he the said x should be thereto afterwards requested. yet the said x, not regarding his said promise and undertaking but contriving and fraudulently intending craftily and subtly to deceive and defraud the said a in this behalf, hath not yet paid the said sum of money or any part thereof to the said a (although oftentimes afterwards requested). but the said x to pay the same or any part thereof hath hitherto wholly refused and still refuses, to the damage of the said a of -----pounds as it is said. and have you there &c." this is an example of a writ for case for trover: "the king to the sheriff greeting &c. as in trespass to show: for that, whereas the said a heretofore to wit [date and place] was lawfully possessed as of his own property, of certain goods and chattels to wit, twenty tables and twenty chairs of great value to wit of the value of ___ pounds of lawful money of great britain; and, being so possessed thereof he the said a afterwards, to wit (date and place aforesaid) casually lost the said goods and chattels out of his possession: and the same afterward, to wit (date and place aforesaid) came into the possession of the said x by finding; yet the said x well knowing the said goods and chattels to be the property of the said a and of right to belong and appertain to him, but, contriving and fraudulently intending craftily and subtly to deceive and defraud the said a in this behalf, hath not as yet delivered the said goods and chattels, or any part thereof, to the said a (although often requested so to do) but so to do hath hitherto wholly refused and still refuses; and afterwards to wit (date and place aforesaid) converted and disposed of the said goods and chattels to his the said x's own use, to the damage of the said a of ____ pounds as it is said; and have you there &c." the rigid writs with specific forms of action for common law cases started to fall into disuse. later, trespass on the case bifurcates into misdemeanor and the tort of trespass. persons in prison on suspicion of treason could not be released on bail as of 1688. if one of several defendants of a case was acquitted, all defendants recovered their costs from the plaintiffs. a person found guilty of malicious prosecution recovered his costs from his accuser. mercantile cases were decided in light of mercantile custom rather than according to the strict rules of the common law. merchants and traders could settle their trade disputes by arbitration, which decision could be enforced by court order. the chief justice could empower persons by commission to take affidavits from people in the country for court proceedings in westminster. judgments were docketed so they could easily be found e.g. by heirs, executors, administrators, purchasers, and mortgagees. court judgments and fines could be challenged for error only within twenty years. court decisions were still appealable to the house of lords. in 1668, skinner v. east india company held that the house of lords could not exercise original jurisdiction in civil cases between commoners as it had claimed, but retained its appellate jurisdiction. in 1675, the house of lords acquired the new judicial function of hearing appeals from the chancery court by virtue of the case of shirley vs. fagg. any gaol keeper allowing a prisoner to escape in return for money lost his office forever and had to forfeit 500 pounds. the last burning of a woman as a penalty for an offense, which had been only occasional, was in 1688. the last bill of attainder, which condemned a person to death, occurred in 1697. the pillory was still in use. benefit of clergy was taken away from those who stole cloth or woolen manufactures from their drying racks or who embezzled military stores or ammunition worth at least 20s, or stole goods of over 5s. value from a dwelling house with a person therein put in fear, a dwelling house in daytime with a person therein, or by day or night a shop or warehouse. a statute of 1661 gave jurisdiction to naval courts-martial to decide cases at sea, e.g. insubordination; failure to fight the enemy, a pirate, or rebels; not assisting a friend, mutiny, drunkenness, creating a disturbance to protest the quality of the food, quarreling, sleeping on watch, sodomy, murder, robbery, theft, and misdemeanors. usually the penalty was to be determined by the courts-martial, but sometimes death was decreed. in the american colonies, judges were still appointed by the royal governors and paid by the local legislatures. they still served at the pleasure of the king. chapter 18 the times: 1702-1776 dress was plainer than before. gentlemen wore white linen shirts; waistcoats fitted at the waist and covering the trunk at least; long lawn ties wound around the throat and tied in front with the tails tucked in, knee-length coats that were wide in the skirts and in the sleeve cuffs and having large gold, silver, or bronze buttons which didn't reach to the buttonholes on the other side of the coat; knee breeches of cloth, knitted wool, thread, and silk; and silk stockings rolled up at the knee. some shoes had metal buckles. gold fobs with watches or seals hung from the breeches pocket. the clothes were made of silk, satin, or velvet and often in colors such as yellow, orange, scarlet, blue, violet, pink, and dull slate, and decorated with gold and silver trimmings. a slender sword was worn on the side. short wigs, often powdered with heavily scented white or gray wheat flour, with rolls over the ears and hair tied at the back, were worn for formal occasions. wigs were made of human, horse, goat, or cow hair, or mohair, worsted, silk, or wire. sometimes feathers and cork were also used. there were new colors and cuts of dress for every season. by 1750, wearing a sword was just a symbol of gentility. gentlemen often had valets to help them dress. ladies wore fitted full-length dresses held out by hoops with shoulders hidden, sometimes with a laced bodice with stays, and lace at the neck. the waistline fashion fluctuated between high and low and in tightness. the dress could be brocade, satin, velvet, silk, etc. some put jewels in their hair and had high elaborate hats with wide brims tilted forward. hair was in ringlets at the side or dressed close to the head with a small top knot covered with a laced cap. they also wore wigs when dressing up, decorated with ribbons and artificial flowers. hooded cloaks were used outdoors and hoods were used for sun or wind. they carried leather purses with gloves at elbow length. both gentlemen and ladies wore cosmetics and face patches and used tooth powders, breath sweeteners, lip salves, and choice perfume. some had false teeth of bone or ivory wired into place. both gentlemen and ladies had accessories such as fans, handkerchiefs, head scratchers, and elaborately designed snuff boxes, patch boxes, and perfume containers. both sniffed tobacco snuff but only men smoked it. they walked with tall, elegant canes, and women also carried parasols. hats were made of wool and hair of beaver, rabbit, or camel. a popular hat was three-cornered, and usually of beaver or dark felt. there was often a rosette or such to show one's political opinion. straw hats were worn in the summer. there were ready-made clothes and shoes, especially for children. night gowns and night caps were worn to bed. about 1714, umbrellas for rain were introduced. they were made of waxed silk or taffeta. all but the poorest wore silk and lace. a prosperous countryman wore riding clothes consisting of breeches and boots, cut-away coat, and low top hat. the highest class were the peers and peeresses of the house of lords and their spouses and families. they were the nobility and held the high political offices, the high ranks in the army and navy, and owned large estates, usually scattered over the country. some were lawyers or merchants. there was much intermarriage among these families. indeed, many a noble family had salvaged its fortunes by marriage to a london merchant. the richest people in london were international merchants. these high class families lived in mansions with four or five living rooms, two to five acre gardens, and stables. the next class were the gentry. their family heads had land and were often justices of the peace. they were sometimes members of the house of commons. the oldest son took over from his father, while the others had to find a living such as in the church, law, medicine, or trade. the gentry usually lived in mansions. the old yeoman class was disappearing due to their selling their land to larger landowners. farming on a large scale was more productive. the next class were the "middling sort". in this class were merchants, lawyers, substantial tenant farmers, smaller freeholders, millers, innkeepers, in town traders, middlemen, clothiers, ironmongers, goldsmiths, grocers, linen drapers, apothecaries, school masters, clerks and civil servants, customs and excise men, and .shopkeepers, who now kept their wares inside and lived on the second floor. the town people lived in town houses of two stories plus an attic. the next class were the manual workers. these were wage earners or independent craftsmen, farriers, rural smiths (who shod horses and made stair rails, window-bars, torch extinguishers, lamp irons, bells, bolts, hinges, locks, and fire-grates), sawyers, carpenters, joiners, wheelwrights, nail makers, brick makers, plumbers (made lead cisterns, kitchen sinks, rainwater heads, drain pipes and lead flats for houses and ornaments), thatchers, spinners (silk, flax, hemp, wool, hair), dyers, wool combers, weavers, shoemakers, hat makers, belt and buckle makers, dressmakers, milliners (hats, caps, bonnets, cloaks, hoods, muffs), feather workers, button makers, lace makers, steel pin makers, brewers, cutlery makers, soap makers, candle makers (made from beeswax, tallow, mutton-fat, or beef-drippings), comb makers, barber/hairdressers (shaved, cut hair, made wigs and braids, and let blood), curriers, leather workers, carpet weavers, paper makers, tin-plate makers, printers, enamel workers, braziers and coppersmiths (made kettles, saucepans, canisters, milk pails, lanterns, candle boxes, candle sticks, and lamp lighters), basket makers, jewelers (made rings, perfumes, match boxes, buckles, and tops of canes), watch and clock makers, type founders, letter cutters, trunk and chest makers, cabinet makers, saddlers, coach body builders, coach carriage makers, shipwrights, rope makers, and sail makers. these workers typically worked in their stone or brick houses in a rural setting, with gardens, a cow, a horse, pigs, and poultry around them on 2-6 acres. they now ate white or wheaten bread instead of rye bread, much meat and cheese, and drank tea. working men could now afford leather shoes. these people also worked in the harvesting of grain. some consolidation of work was starting. for instance, the weaver, who had furnished himself with warp and weft, worked it up, and brought it to market himself was being displaced by weavers who worked under supervision for one merchant in a town on looms the merchant had acquired. many women and children were so employed. it was not unusual for a man to work 13 hours a day for 6 days a week. the wage earners were well above the subsistence level as long as trade was good. real wages were higher than at any time since the mid-1400s. but eventually, as the employer came to realize how dependent the weaver had become on him, wages tended to fall. in 1757 a gloucester weaver, with his wife to help him, could earn, when work was good, from 13s. to 18s. a week. a few years later, he could only earn about 11s. a woman spinner earned 10-15d. a day in 1764, but 3-5d. in 1780. in the same period, men's wages fell from 17d. to 10d. a day. only certain workers, whose special occupation needed greater skill, e.g. the wool-combers, whose wool was longer and of better quality than carded wool, and shearers, were better paid. in 1770, wool combers made 13s. a week; their wage was about the same all over the country because they traveled form town to town in search of work and always supported each other. also in 1770, newcastle miners earned 15s. a week, sheffield cutlers 13s.6d. a week, a rotherham blacksmith 13s. a week, a furnace keeper at horsehay about 12s. a week, a staffordshire potter from 8-12s., a witney blanket weaver or a wilton carpet weaver 11s. or more a week, a manchester cotton weaver from 7-10s. a week, and a leeds cloth weaver about 8s. in this class also were ploughmen, cowmen, dairymaids of the bigger farms. they had cottages of wood, clay, and straw, with clay floors and low ceilings, and a divided ground floor. a few had homes built of stone, covered with slate or thatch. wages of industry were higher than those of agriculture. in 1770, a day laborer earned 5-6s. a week in winter and 7-9s. in summer, without board or lodging. in the short harvest time, he could earn 12s. a week. lastly were the mass of the population of london: hordes of laborers who depended on casual employment and could be dismissed at will. about half the population had no resources but their labor, which was usually unskilled and lowly paid. in good times they had just enough to feed themselves. the gap between rich and poor became greater. marriage remained a main way to wealth. also, one trained in the law could aspire to have a successful career in high political office, which also brought wealth. but there was less social mobility than in the previous century and many landed families were consolidating their position. industrialists who had made a fortune for example, in steel, cotton, coal mining, and porcelain, and merchants who wanted to turn themselves into landed gentlemen found it very difficult to buy landed estates. old dissenter families, quakers in particular, who were highly esteemed as businessmen, as industrialists, and as model employers were excluded from the anglican landowning society. rich tradesmen, artists, actors, and writers found it difficult to buy substantial houses in the small market towns and countryside because of an entrenched hierarchical atmosphere there that didn't exist in london. the only gentlemen who were in household service were librarians, tutors, or chaplains. they ate with the family and did not consider themselves servants. servants were kept more at a distance. by the 1750s the servant class was clearly defined. their quarters were moved to the basement of the house and they ate together in the kitchen. but some householders still had special occasions when everyone ate together in the dining room, with the servants at one end of the table. servants had no right to free time or to holidays. in 1767 about one tenth of the population in london had servants. even bricklayers and milk sellers had a servant. most families had just one servant. most wives employed some other woman or child to help in washing and scouring or in the minding of the children. london had grown beyond the locations of its walls around the city. london stretched ten miles along the thames, and was three miles wide in the center. on the east of the city was the port and industry. the west side ended at hyde park and regent's park and was residential. in 1710 it was still possible to shoot woodcock in regent street. in 1750, westminster bridge was opened. in 1760, the city walls were taken down to ease congestion. the typical london house, usually brick, was on a rectangular plan and had a basement to utilize all the space possible. walls were now more covered with hung damask, brocade, silk, and wallpaper or plain paint rather than by wood paneling. there were pictures on the walls. on the first floor was a front hall or parlor and a back parlor. one of these parlor rooms was the most important room, where the family entertained or spent leisure time. in it were sofas, armchairs, and stools of mahogany or white gilded wood. they were upholstered with damask or needlework. imported mahogany was replacing the favorite walnut that had replaced oak. much wood was inlaid with a variety of other types of woods. there was also a carved tripod table, china table, card table, and perhaps bookcases and/or tea-table. furniture with original designs made by the cabinet-maker chippendale was available. his genius was in combining various motifs into one harmonious design. cabinet makers had to keep abreast of his standards and to imitate them to conform with their customers' orders. cabriole legs with claw and ball feet came into fashion with queen anne about 1712. between windows were tall mirrors. from 1760, glass chandeliers hung from the ceiling to reflect candlelight coming from standing candlesticks or glazed hanging lanterns with brass frames. the fireplace had an elaborate mantel. the fire was kept going all day. it was lit by a tender box, which was unreliable. an iron fireback was behind the fire. the firewood was placed on andirons. fire grates were used from about 1712. at a corner of the building was added a closet. on the second floor was a dining room, continuation of the closet below, and a drawing room, dressing room, or bedroom, and perhaps a study or music room with harpsichord. the dining room had a fireplace; curtains over the windows looped up at the cornices; one or more mahogany tables; a set of mahogany chairs with leather or haircloth seats fixed with brass nails, perhaps with some sort of metal springing; two mahogany sideboards with marble tops; cupboards or shelves or cabinets with displays of china porcelain; a wine-cooler; a dumb-waiter; and a folding leather screen. the china, which was displayed, was mostly imported, but there was some english china. later, there was famous wedgwood stoneware and pottery with bright, unfading glaze, or with dull black and red surfaces, biscuit ware of pale green, blue or purple, upon which white designs stood out like cameos. they came from the pottery factory at staffordshire founded by potter josiah wedgwood in 1769. there were silver and pewter plates and serving pieces, silver candlesticks, silver knives, spoons, and two and three pronged forks, glass saltcellars from 1724, and fingerbowls from which one rinsed one's mouth or cleaned one's fingers after dinner which were made of glass from about 1760. on the third floor were bedrooms and a nursery. in the bedrooms, there was a high bed with curtains, canopies, piles of blankets and pillows, and steps up to it; wardrobe; chairs; a hand wash stand; chests of drawers; writing bureau; dressing table with a couple drawers and a mirror; swing standing mirror; tin rush candle canister; and night commode. children and servants slept on low wooden bedsteads. walls were stucco, a form of cement that could be sculpted, or paneled or hung with silk and printed paper. servants, such as the page and footmen, slept in the attic and perhaps in the kitchen or cellar. there was a wood staircase for the family and a back staircase for the servants. the floors and stairs were protected with carpeting. the kitchen was in the basement or in a covered shed in the back. it had an open fire and a tin oven. the cold water tap over the stone sink could supply cold water from a cistern in the basement or hand-pumped to a roof cistern through wooden pipes at very low pressure at stated hours for a fee. there was a wash shed in back. water pumped from the thames into underground pipes was thus distributed to householders three times a week. some water came from a well or spring, rain, and street water sellers. water carriers were still employed at set fees. water was kept in lead cisterns. the wealthy had basement cisterns filled by a commercial company. the free public conduits of water were out of use by 1750. the front door of the house had two strong bolts on the inside and a heavy chain. the windows could be shuttered and barred. there were sash windows with cords and brass pulleys. at the back of the house was a garden and perhaps a coach house or stables. landscaping to reproduce an idealized country scene replaced formal gardens. foreign trees were imported. the latrine was usually not in the house, but somewhere in the back garden area. under it was a brick drain leading to a public sewer or to a cesspool. smelly gases arose from it. sometimes people gathered such waste up to sell to farmers returning home in an otherwise empty wagon. in 1760, patented inside toilets began to be used. each stood in its own room. a watchmaker named alexander cummings patented in 1775 the water-closet, which had a stink trap u-bend behind which, after flushing, water resided and prevented the backflow of noxious sewer gas. its pans and overhead cisterns were made of pottery. they were supported by wood structures. there were better cements for building. chinese porcelain, embroidery, and lacquer work were popular. furniture and landscaped gardens were often done in a chinese style. many of the well-to-do now lived in districts without as well as within the city limits. many streets east of the city were named after the governing families whose estates were there. their mansions had interior columns, archways, marble halls and fireplaces, carving, gilding, rich colors, and high ornamented ceilings. they each had a picture gallery, a library, stables with coachmen, grooms, and stableboys, and a still-room for concocting liquors and cordials such as cherry brandy, sloe gin, and elderberry wine. medicine and scents were also developed in the still-room. hands were washed in bowls held up by wooden stands. there were built-in bathtubs, but they usually lacked hot and cold running water, so hot water usually had to carried up to them. in these mansions, there were many private parties and balls. the standard for politeness here was high and gentlemen were expected to keep their tempers. this came about because impoliteness could easily lead to a quarrel and then a duel. the pistol was replacing the sword as the weapon of choice for duels. good manners developed for all occasions, with much less swearing and less rudeness. by gentlemen's agreements, men did favors for each other without a monetary price, but with the expectancy of a favor in return. the love of one man for another was recognized as the highest and noblest of human passions. people of high social standing left their country estates to spend the winter season in their townhouses in london with its many recreations such as receptions, routs ]fashionable gatherings], levies, masquerades, balls, dinner parties, clubs, pleasure gardens, theaters, shops, shows, taverns, and chocolate and coffee houses. coffee houses provided turkish coffee, west indian sugar and cocoa, chinese tea, virginia tobacco, and newspapers. they were frequented by learned scholars and wits, dandies, politicians, and professional newsmongers. men of fashion often engaged in wagers and gambling at their clubs and coffee houses. there were wagers on such matters as the longevity of friends and prominent people, fertility of female friends, wartime actions, and political matters. gentlemen often had valets. carriage by sedan-chair was common. in 1776, buckingham house was bought as a palace for the royal couple. physicians and lawyers lived in two-story brick mansions with attics and sash windows that could be lifted up and down with the help of a pulley. they had rectangular wood panes each with a sheet of glass cut from a circle of blown glass. the old blown glass was not regular, but had a wrinkled appearance. the center of each pane of glass was thicker with a knot in the middle left from the blow pipe. in front of the house were railings which supported two lanterns at the doorway. people from different parts of london differed in ways of thinking, conversation, customs, manners, and interests. for instance there were sections where sailors lived, and where weavers, watchmakers, and cow keepers each lived and worked. there were many specialized craftsmen who worked with their own tools in their own shops or houses, for some superior who had contact with the market and who supervised the final processes of manufacture. these included the goldsmiths, upholsterers, coach makers, saddlers, and watchmakers, all of whom had many dependents. the watchmakers had specialists making wheels, pinions, springs, hands, dials, chains, keys, caps, and studs in their own houses. the type of industrial organization most common in london was that in which work was given out to be done in the homes of the workers: the putting out system. some industries, such as watchmaking, silk weaving, and shoemaking were on both a putting out system and a system of an apprenticeship to journeymen working on piece work. shoes were made to order and ready made. the customer was measured in a shop, the clicker cut out the upper leathers, which were given to the closer to be closed, and then to the maker for the sole and heel to be put on. another class of shoemaker worked alone or with an apprentice in a garret, cellar, or stall, using pieces of leather cut out for him by the currier or leather cutter. london industries included the making of bread, beer, spirits, and vinegar; sugar refining; tobacco refining and snuffmaking; spinning and/or weaving of woolens, worsteds, silk ribbons, tape, and cloth; and making printed calico, clothes, linens, laces, tassels, fancy embroidery, stays, stockings, hats, shoes, leather goods such as boots, shoes, hats, gloves, harnesses, and saddles, jewelry, glass, candles, tapestry, musical instruments, cutlery, furniture, paint, varnish, paper, tools, swords, guns, heavy artillery, ships, sails, rope, carriages, precious and base metalwares such as brass and pewter ware, and printer's ink and glue; printing; and publishing. surgical instruments made included straight and curved knives and probes, lancets, scissors, spatulas, trepans (for cutting bone), and cupping cases. optical instruments made included eyeglasses, telescopes, and microscopes. in 1727 eyeglasses were held in place by frames that went over the ears, which replaced unreliable cords over the ears and leather straps tied behind one's head. also made were nautical instruments, quadrants, sundials, sectors, globes, scales, model solar systems, and air pumps. in london, the old distinction between craftsmen and laborers was blurred by the existence of trades which employed workmen under a skilled foreman instead of journeymen who had served an apprenticeship. these trades were, on a large scale, new. among the most important of these trades were the distillers and brewers of liquors, the tobacconists and snuff makers, the sugar refiners and soap boilers, the vinegar makers, and makers of varnish, glue, printers' ink, and colors. the latest chemical theories and the chemical explanation of dying brought about the invention of new colors and new processes in dying cloth. workers in these trades were considered as laborers, but their wages were high and their positions relatively secure. they learned their jobs by doing them. the older trades of a similar character, such as tallow melters and chandlers, wax chandlers, fellmongers [removed hair or wool from hides in preparation for leather making], and the tanners, employed journeymen. the skilled artisan who worked at home and either made goods for a master or sold to the trade verged into the shopkeeping class. on the other hand, the lowest type of shopkeeper, the chandler, the dealer in old iron, the tripe shop, the milk retailer, the keeper of a cook shop or a green cellar belonged to the class of casual and unskilled labor. the lowly chimney sweep, paid 6d. a day, served an apprenticeship as a boy, and then was his own master. the watermen and lightermen, by virtue of their fellowship and their apprenticeship and often the ownership of a boat, belonged to the class of skilled laborers. craftsmen in the building trades and paviours had their laborers as smiths had their hammermen to do the heavy work at laborers' pay. the street ragpickers, the ballad sellers, and the match sellers belonged to the class of beggars. there were buildings for boiling and distilling turpentine, for casting brass or iron, and for making glass for chemical works for sale. working women in london in 1750 were employed in domestic service: 25%, nursing and midwifery: 12%, cleaning and laundry: 10%, vitiating: 9%, shopkeeping: 8%, hawking: 6%, and textiles: 5%. those employed in domestic service were mostly young women who later married. some women were schoolteachers, innkeepers, or manufacturers, which were middle-class employments. many women in the realm engaged in a variety of occupations from fanmaking and hairdressing to catering, and, as widows, often carried on their husband's trade, including bookselling, hatmaking, building or ironmongery. although shops still had small frontages of about 15 feet and the windows had small panes of bottle glass which partly obscured the view of the goods, there were magnificent shops with large windows displaying fine goods. there were bookshops, and print shops with prints of political satire with caricatures. the shops were generally open six days a week from 7 a.m. to 8 p.m., and years later to 10 p.m. in 1675 josiah wedgwood opened a showroom in london for his high quality pottery from staffordshire. consumption was on a mass scale, many people buying what they wanted instead of just what they needed. there were circulating libraries, public concert halls, and professional boxing matches. at coffee houses, chocolate houses, and taverns, people played at dice and cards, gambled, talked politics and read daily newspapers, in which there was advertising, reports of marriages and deaths, grain prices, and book reviews. different professions and classes and groups, such as the whigs, the tories, classical scholars, scientists, clergymen, intellectuals, actors, writers, and journeymen of particular crafts, had their favorite meeting places. coffee houses reflected the character of their neighborhoods. they acted as postal centers, lost property offices, business addresses, physicians' consulting rooms, lawyers' and merchants' businesses, matrimonial agencies, masonic lodges, auction rooms, and gambling dens. some retained a supply of prostitutes. many taverns had a rentable private room for the better-off to drink wine, have meals, meet friends, gamble, do business, and hold meetings of societies and clubs, especially political clubs. from this beginning sprang private clubs such as the blue stocking club in 1750 and the literary club in 1764, lloyd's for sale and insurance of ships in 1771, and the stock exchange in 1773. the blue stocking club was established by women who organized conversational parties with guests of intellect and wit. there was opera, playhouses, concerts usually with georg handel's oratorios such as the messiah or the foreigners bach and haydn, tea-gardens, fire works, balls, masquerades, wax works, beer shops, and bawdy houses, except on sunday. there were straight plays, comic operas, and melodramas. three-dimensional sets replaced the twodimensional backdrop. plays containing thinly veiled satires on politicians were becoming popular. some plays had crude and licentious material. theaters still shared a close association with brothels. unlicensed theaters were closed down by a statute of 1737, but most came to acquire patronage to get a license. this shaped the development of drama in london for a century. the beggar's opera depicting an immoral society unable to master its bandits was written by john gay as a powerful attack on a government which most of london hated. with its many ballads it became very popular. one such ballad goes: "through all the employments of life each neighbor abuses his brother; whore and rogue they call husband and wife; all professions be-rogue one another. the priest calls the lawyer a cheat, the lawyer be-knaves the divine; and the statesman, because he's so great, thinks his trade as honest as mine." another is: "a fox may steal your hens, sir, a whore your health and pence, sir, your daughter rob your chest, sir, your wife may steal your rest, sir, a thief your goods and plate. but this is all but picking, with rest, pence, chest and chicken, it ever was decreed, sir, if lawyer's hand is fee'd, sir, he steals your whole estate." the thames was crowded with sailing boats and with a line of boats waiting to unload. foreign and native ships lined the river banks in rows. theft of cargo from docked ships was still a problem and pirates were still executed at low tide on gallows. londoners went to the bridges crossing the thames to breathe fresh air. london air was so smoky and polluted by coal-burning in kitchens and factories that it gave a cough to newcomers. the river was so polluted by the sewers by 1760 that all the swans and most of the fish had disappeared. a mansion house was built for the mayor in 1753. the king's zoo had ten lions, one panther, two tigers, and four leopards. deer hunting in hyde park was now confined to its northwest corner, which was enclosed for the king, who occasionally hunted there. elsewhere in the park were laid out walks and fountains. gardens were now natural instead of formal. the streets were usually crowded with people and traffic. many people traveled by sedan chair. on the streets were barrows with goods such as lace, threads, fruits, and chickens; beggars, ballad singers, musicians, bands, street dancers, apple women, piemen, muffin men, fruit sellers, nut sellers, pudding sellers, milk maids selling milk from buckets, milk sold directly from the cow, vendors of asses' milk, hawkers, newspaper boys, scavengers with carts, postal collectors, lamplighters on their ladders, wenches, chimney sweeps, rat catchers, pick pockets, swaggering bravados, strolling strumpets, brawling watermen, card sharps, overdressed beaux, dancing dogs, and acrobatic monkeys. each trade had it own call. billingsgate open-air market was now exclusively for the sale of fish. small tradesmen such as dairymen, butchers, bakers, fishmongers, and chandlers delivered to regular customers food bought from distributing centers. workers by necessity lived near their place of work because there was no cheap transport and walking through the streets after dark was unpleasant and dangerous. hours of work for most craftsmen was from 6 a.m. to 8 p.m., six days a week. it was common for working class families in london to live in a single room of their house and rent the rest, furnished, to people of different degrees of prosperity and even of different social grades. servants and apprentices slept in the kitchen, the shop, or the garret. the very poor, such as casual laborers and street sellers, silk winders, charwomen, usually lived in damp cellars subject to floods from excessive rain, or in cold and windy garrets. tenancy was usually on a weekly basis because of the general uncertainty of life and trade. conditions were so cramped that cabinet makers made beds which masqueraded in the day time as tables, bureaus, cupboards, or bookcases. the very poor slept in common lodging houses, sleeping uncovered on the floor, twenty to a room. some poor families slept in small hovels made of mud and straw with their pigs, domestic fowl, dogs, and even asses and horses. homeless children slept on the streets. all classes lived so much at coffee houses, alehouses or clubs, which they often used as their addresses, that house room was a secondary consideration. there was an alehouse on almost every street in london to provide cheap food and beer, lodging, employment information, credit, newspapers, tobacco, and meeting places for tradesmen. some alehouses were recognized employment agencies for certain trades, such as the hatters, smiths, carpenters, weavers, boot and shoe makers, metal workers, bakers, tailors, plumbers, painter and glaziers, and bookbinders. they were often run by one of the trade, retired or otherwise. some alehouses catered to criminals and prostitutes. for cheap and simple eating there were chophouses, cookshops, and beef steak houses. there were about 10,000 english immigrants a year to london in the 1700s. they were mostly young people. london needed many immigrants because of its high death rate. over twenty london people a week died from starvation alone; they were mostly women. only about one-fourth of london's population had been born in london. especially welcome were sturdy country people for heavy manual labor, the better educated boys from the north for shops and offices, and the honest country people, as contrasted with london's poor, for domestic service. girls mostly looked for domestic service, but were sometimes made the mistress of the housekeeper or steered into prostitution as soon as they entered the city. an ambitious young man would seek an apprentice job, work hard, flatter his master, and try to marry his master's daughter. it was easier to find a place to live in london than in the villages, though there was much overcrowding. many shopkeepers and workshop owners in london were involved in leasing, purchases, and contracts. queen anne was authorized by parliament to build about 50 more churches in london and westminster and their suburbs, to be paid for by a coal tax on imports into the port of london. churches in london were to be rebuilt with money paid by funeral rates, rates for tolling the bells, and rates for the use of palls [altar cloths]. queen anne also appropriated all her revenues from the first fruits and tenths of ecclesiastical benefices: 16,500 pounds, to the clerical poor in 1704. there were fewer quarrels among passersby on the london streets; men were less likely to wear their swords. but there were fist fights by common men which gathered crowds and occasioned betting. most crime was petty theft, but mobs and riots were frequent, as there were no police. watchmen and constables were often old and physically incapacitated. the watchmen were householders taking their turn. this duty of householders watching the streets had evolved from the ancient obligation of wards to provide men to guard the walls at night. but few wanted these jobs by which they could offend their neighbors. many citizens paid a rate to be excused from watch and ward duty. constables were often tavern keepers. many riots were started when penal laws against the catholics were repealed. they began with the cries of "no popery", but then targeted rich men's houses. mobs sacked and pillaged at will, burned houses, and flung open the prisons to increase their numbers. there were political riots between tories and whigs. working men still used violence to protect their livelihoods, such as destroying the lodgings and public houses of cheap immigrant labor such as the irish. the stocking-knitters destroyed stocking-knitting frames so that the number of apprentices who could be employed would not reach the limit specified by its guild's regulations. parish workhouse children also provided a cheap supply of labor which forced down the wages of the stocking knitters. in 1720 a statute banned wearing of calico after mobs tore calico garments off women. in 1765, thousands marched on parliament and persuaded it to ban foreign silk imports. but when a mob destroyed engine-looms, the army was used against the rioters and two of them were hanged. this was the last major mob action. around the tower, there were still demagogues standing on upturned carts haranguing passing crowds. the tower area was a favorite place for demonstrators, and for unemployed and dissatisfied workmen, particularly coal heavers and underpaid seamen protesting their low pay and poor living conditions. there was more crime, especially at night, now with organized bands of men or gangs of children. bounty hunters made a lot of money catching offenders. in 1736, to deter the frequent robberies, burglaries, and other felonies at night, many glass lamps were set up in places determined by the mayor. they had to burn from sunset to sunrise. in 1736, a lighting rate was imposed by the city to pay for all night lighting all year by hired lamplighters. anyone breaking or damaging the lights of london would forfeit 40s. for the first offense, 50s. for the second offense, and 3 pounds for the third offense. the aldermen had to contract to pay for lighting, trimming, snuffing, cleaning, supplying, maintaining, and repairing them. to pay for this system, citizens paid according to the amount of rent their holdings were worth. if they didn't pay, they could not vote. bad areas of thieves and prostitutes and the slums east of the city were gradually being replaced by warehouses and offices. in 1757, london bridge was widened and the houses were cleared off it. there were lanes for carriages in the middle and for pedestrians on each side. its arches were also widened to make the passage of vessels underneath easier. lights were put on it to be lit all night. and watchmen were put on it for protection and safety of passengers. this was paid for by tolls of 1/2 d. per horse, 1d. per carriage, and 2d.-1s. for vessels with goods passing underneath. about 1762, a body of enterprising citizens secured private acts of parliament which allowed them to levy a house tax in return for providing paving and lighting, which then greatly improved, as did sanitation. sidewalks were raised between the street proper and the buildings, replacing the protective posts which had lined the roads. flat stones were put in place of the pebbles on the roadway. signs hanging out from stores, which had blocked the sunlight, were placed flat on the front of the buildings. this also made the streets more airy. the buildings were given numbered addresses and street names were placed on buildings. loading and unloading could not exceed one hour. nuisances like empty carts could be removed. cranes used in warehouses had to be stored in unobtrusive places. one who drove on the foot pavement had to forfeit 10s. for the first offense, 20s. for the second offense, and 40s. for other offenses. wells were dug and pumps erected for watering the streets. pavements were to be repaired on complaint. dust boxes and dust holes were built and had to be used for refuse awaiting pickup by the raker or else forfeit 10s. in 1762, the system of having every man responsible for cleaning the street in front of his door, which occasioned piles of rubbish in the central troughs of the streets waiting for the next rain to be washed away, was abandoned. but house occupants were required to keep the sidewalk in front of their house clean or else forfeit 2s. if one broke a light, he had to pay damages if it was accidental, and also 20s. if willful. wards were to choose substantial inhabitants to be collectors for a year at a time to collect the rates, which were not to exceed 1s.6d. per pound of rents. if one declined to be a collector, he had to forfeit 50 pounds. there were special stands for hackney coaches, which were 12s.6d. for a day of twelve hours. their regulations were extended to sundays. in london, the normal system of building was for builders to buy up leases, put up a new building, and sell it before the lease became due. the rules for party walls between buildings were made more stringent: 2 1/2 bricks thick in cellar, 2 bricks thick to the garret floor, and 1 1/2 bricks above the roofs or gutters. they had to be made of brick or stone. in 1772, rain water from roofs had to be carried to the streets in lead or other pipes that were affixed against the side of the building. in 1774, iron, copper, or other pipe or funnel for conveying smoke or steam were not to be near any inside timber, or in front of most any building or next to any public street, square, or court. in the 1720s firefighters had to fill a tank on a wagon by hand with buckets. on top of the tank was a hose that could spray water high. london parishes were authorized to place upon the water pipes underground stop-blocks of wood with a plug and firecocks to go into such pipe at various distances so that there would be no loss in time in digging down to the pipes to get water to fight fires. parishes were required to keep at known places, ladders and a large engine and a hand engine to throw up water to extinguish fires including one leather hose with socket fitting the plug or firecock, so that buckets would not be needed. the sun insurance company was incorporated for fire insurance in 1711. insurance offices were authorized to employ watermen with poles, hooks, and hatchets to be always ready at a call to extinguish fires. no more than 12 sacks of meal, 12 quarters of malt, 750 bricks, or 1 chalder of coal per load on wagons or carts with wheels bound with [narrow] iron tire are allowed within ten miles of london or westminster, or else forfeit one horse. this is to prevent decay of the roads. for every wagon and cart in london, there must be a person on foot to guide it to prevent the maiming, wounding, and killing of people, especially the old and children, when drivers ride on their wagons and carts. later, it was required that carts must display the name of the owner and be registered. still later, there was a penalty of 10s. for not having a person on foot to guide any cart. later still, in 1757, if a new owner of a cart did not put his name thereon, he had to forfeit 40s., and the cart and horse could be seized and sold to pay the forfeiture. persons willfully obstructing passage on streets with empty carts or barrels or pipes shall forfeit 5-12s. or do hard labor up to one month. the justices of london assessed rates and made regulations for carriage of goods. certain houses and buildings were bought and pulled down to widen several streets, lanes, and passages. in 1774, persons driving cattle in london, whose negligence or improper treatment of such cattle cause them to do mischief shall forfeit 5-20s. or else go to a house of correction for up to one month or be publicly whipped. the roads around london were neither very attractive nor very safe. along them was land covered with water from drains and refuse and dung heaps. hogs were kept in large numbers on the outskirts and fed on the garbage of the town. smoking brick kilns surrounded a great part of london. in the brickyards vagrants lived and slept, cooking their food at the kilns. queen anne's drinking of tea made it a popular drink, but it was still expensive. this habit improved health because to make tea, the water had to be boiled before drunk. breakfast included tea and bread and butter, and later toast with melted butter. the rich also had coffee and chocolate. the morning newspaper was often read at breakfast. the chief dinner dishes were roast beef, roast mutton, boiled beef or pork, with puddings and vegetables. roast meat was still the basic diet of town and country gentlemen. there were also fowls, tripes, rabbits, hares, pigeons, and venison. many elaborate sauces were made. the national dish was the pudding, a compound of steak, kidney, larks, and oyster. drinks included ginger beer, lemonade, barley water, coffee, chocolate, tea, and foreign wine. port from portugal was introduced about 1703, and rum about 1714. rum, made from sugar, first became popular as a medicine, well-whisked with butter. beer was drunk by the poorer and middle classes. the poor could afford very little meat now, unlike 200 years ago. their standard fare was cheese, bread, and tea, the latter of which was usually from used tea leaves bought from rich houses. households were smaller; a peer had a household of about 25-50. the proportion of women in a household grew to one-third to one-half. dinner guests sat and were served in order of rank, with gentlemen on one side of the table and ladies on the other. later, a fashion came in to sit alternately by sex. dinner was in several courses and lasted a few hours. toasts might be made. it was bad manners to put one's elbows on the table, to sniff the food, to eat too slowly or too quickly, to scratch, spit, or blow one's nose at the table, or to pick one's teeth with a toothpick before the dishes were removed. after dinner, the men drank, smoked, and talked at the table. there was a chamber pot under the sideboard for their use. politics was a popular subject. the women talked together in the drawing room. later, the men joined the women for tea and coffee. the evening often finished with card games, reading newspapers, verse-making, fortune-telling, walks in the garden, impromptu dancing, perhaps gambling, and supper. the nobility and gentry became more mobile and now mixed together at parties. at these afternoon parties, there were a variety of simultaneous activities, instead of everyone participating in the same activities together as a group. guests could choose to engage in conversation, news, cards, tea-drinking, music, dancing, and even go into supper at different times. sometimes a man other than her husband escorted a lady to a party. having lovers outside marriage was socially accepted if discrete. single women were discouraged from thinking of their independent status as desirable. their single status was to be regarded as unfortunate. weddings took place in public in church instead of privately. there were banns, or announcements, publicized before the wedding so that anyone who knew of a reason why the marriage should not take place could speak up. brides wore a white silk or satin dress with a train. over one third of brides who were capable of having children were already pregnant when they married. in 1753 a marriage statute required licenses to marry, the consent of parents or guardians for minors to marry, the calling of banns, and four weeks residence in the parish where the license was given by bishop or other authority. these requirements addressed the problems of the kidnapping of heiresses, prostitutes trapping unwary youths after getting them drunk, and priests performing marriages clandestinely and not in church, which required banns. two witnesses to the marriage were required to sign a certificate of marriage, which was then to be registered in the parish books. manufactured goods relieved ladies from baking of bread, brewing, and spinning. so they often visited with friends, wrote letters, embroidered, and supervised the servants. funerals ceremonies started with socializing at the house with refreshments, then going in a procession to the church for burial, and finally returning to the house for more socializing. it was possible for a woman-covert to be seized of land in fee simple or in tail general or special to her separate use, free from control or intermeddling of her husband. houses were warmed in winter by burning coal. moderate homes had tent-beds in use, with which cloth was hung on all four sides of the bed from a light iron framework above the bed. the beds were warmed with a warming pan heated in a fire before use. there were often bed bugs and fleas. everyone wore nightcaps to bed. pewter tableware was used, but the poor used tinware instead. copper, brass, and iron pots and pans were increasingly common. most towns had a regular market once or twice a week. in them, street cleaning was still a responsibility of individual householders. water was still obtained from wells and pumps. there was no municipal government as such. public works were done by special commissions set up for particular purposes, such as lighting, cleaning and paving the streets, night watchmen, traffic regulation, removing nuisances, and improving local amenities. large towns had hospitals for the poor. in the larger manufacturing towns, there were literary and philosophical societies for debates and discussions. these put together libraries for use of their members. also in these large towns, there were booksellers' shops, printing houses, weekly newspapers, playhouses, concerts, and horseracing courses, the latter of which was mostly patronized by gentlemen. some private citizens of various towns followed the example of london and obtained from parliament the right to levy a house rate for paving and lighting. towns tended to be known for certain specialties, such as seaside holiday resorts, spas like bath, cathedral towns, fashionable shopping for gentry, and towns with certain industries like glass and china manufacture, pinmaking, pottery, tanning, manufacture of linen, silk, cotton, and the knitting trade. certain towns were famous for certain varieties of wool cloth. before 1750, a town with more than 5,000 inhabitants was considered a large town. shopkeeping was supplanting fairs and markets. certain industries were done on a large scale and required workers to be at the same site, e.g. brewing and distilling; building ships; printing fustians; making paper, soap from animal fat or candles; coal mining, iron production, mining and smelting of tin and copper, refining of salt, and digging of clay. certain other industries also required some kind of power or team work for their production, e.g. refining sugar; finishing cloth; making bricks; glassmaking; manufacture of ropes and sails, and processing of copper and brass into rods and sheets. often the manufacturer's house was surrounded by the many cottages of his workers. there the wife and children usually were busy carding and spinning. putting out work and subcontracting were widespread and created many small-scale capitalists. workers' hours were typically 6 a.m. to 8 p.m. though grammar schools were endowed for the education of local poor boys, they sought fee-paying sons of gentlemen. they taught arithmetic as well as reading and writing. translation and reading of latin was still important, e.g. aesop's fables, virgil, cicero's letters, caesar's commentaries, horace, pliny, juvenal, ovid, livy, and plautus. the "eton grammar" book replaced the "royal grammar" as the standard for latin and english grammar. the boys lived in boarding houses superintended by "dames" or older boys. there were usually two boys to a bed. there was bullying and initiation ceremonies such as tossing small boys up from a held blanket or having younger boys run naked in the snow. there were occasional rebellions by the boys and fights with the townspeople. flogging with a birch or caning with a rod until blood was drawn from the bare buttocks was the usual punishment. there were some national boys' boarding schools such as eton, winchester, and westminster. in these schools, boys could mix with sons of rich and powerful people, thus establishing important connections for their adult life. but there was more bullying of small boys by large boys at these schools and the smaller boys became menial servants of their seniors. occasionally there were student riots. however, most grammar schools were not residential. because the grammar schools were limited to boys, many boarding schools for girls were established. tradesmen's daughters were often sent to these to learn to act like ladies. most upper class girls were taught, at home or at school, english, writing, arithmetic, drawing, courtly dancing, needlework, music, and french. dissenting academies were established for those who did not pass the religious tests of the grammar schools. pencils were now in use. sons of gentlemen usually took "the grand tour" of the continent before going to university. these tours lasted for months or years, and always included paris and a protestant french university. the students went in groups with tutors. the chief purpose was now cultural, instead of practical. on these tours there was often misbehavior such as drinking and fighting. in 1720, travelers checks were developed for those on the grand tour. the universities began to teach science. the new professorships at cambridge university were: chemistry, astronomy, experimental philosophy, anatomy, botany, geology, geometry, and arabic. ideas in geology challenged the bible's description of the creation of the world and there was a controversy over the origin and nature of fossils. in 1715, a large pointed weapon of black flint was found in contact with the bones of an elephant in a gravel bed in london. oral and written examinations began to replace disputations. few professors lectured. dissenters were excluded from universities as well as from offices and grammar schools. oxford and cambridge universities were open only to members of the church of england, so other universities were established for dissenters. they taught geography, mathematics, science, physics, astronomy, mechanics, hydrostatics, and anatomy. at oxford and cambridge and harvard universities, students in science were relegated to different instructors, buildings, and degree ceremonies than students in literature, who often looked down on them as socially and intellectually inferior. the inns of court had ceased to provide residence. the period of education at law school at the inns of court was now reduced in 1760 from seven to five years for ordinary students and to three years for graduates of oxford or cambridge universities. the textbooks were: "doctor and student" by christopher saint-german in 1518 and "institutes of the laws of england" by thomas wood in 1720. most landed families tried to ensure that at least one member of the family in each generation was educated at the inns of court after going to oxford or cambridge. in 1739, attorneys formed a "society of gentlemen practitioners in the courts of law and equity". in order to earn a living, most attorneys had to attach themselves to some great patron and serve his interests. so it was hard for an ordinary person to find an impartial attorney or to find any attorney willing to contest a powerful family. the first encyclopedia came into existence in 1728. in 1740 was the first public circulating library in london. samuel johnson put together the first dictionary in 1755. it standardized spelling and pronunciation. then came dictionaries for the arts, sciences, and commerce. there were histories with political biases such as the earl of clarendon's "history of the great rebellion". alexander pope wrote witty satire on human faults of the period such as "rape of the lock". daniel defoe wrote "robinson crusoe", "moll flanders", and "the poor man's plea" protesting disparity of judicial treatment of rich and poor, for instance for drunkenness. henry fielding wrote one of the first novels: "tom jones". joseph addison wrote essays on social behavior. jonathan swift wrote the satire on the times, "gulliver's travels". samuel richardson wrote some of the first novels, such as "clarissa"; he wrote on values such as religious faith, moral virtue, and family closeness. catherine macaulay started writing her weighty and impressive "history of england". many schoolmistresses wrote textbooks on a variety of subjects. poet and essayist hester chapone wrote "letters on the improvement of the mind". elizabeth carter wrote poetry and translated greek works; her work was published in "the gentleman's magazine". hannah more wrote the play "the inflexible captive". the diaries of caroline girle powys daniel told of her extensive travels in the nation, and the various life styles of polite society she visited. defoe's newspaper was the first great political journal. he claimed that the people have a right to control the proceedings of parliament. essayists like richard steele, who introduced the periodical essay in his newspaper, and joseph addison, in his newspaper, wrote in a conversational style about the social life around them and the thoughts and behavior of common men and women in a light and good-humored way. they separated humor from the old-style farce and gave it taste and gentility. and with this came a moderation, reserve, and urbanity in matters of religion, politics, and society. religious issues even became a matter of indifference. fairies, witches, astrology, and alchemy were no longer taken seriously by educated men. tales of fairies, witches, ghosts, and miracles were deemed appropriate for children. childrens' stories were becoming a distinct literary form. nursery rhymes included "hush-a-bye baby on the tree top" and the five little piggies. "mother goose's melody" was published in 1765. there were picture books for children such as cinderella, red riding hood, and sleeping beauty. craftsmen made small models of their wares, such as dolls' china, dolls' furniture, silver, and flat lead soldiers. babies had rattles and teething rings. in 1710 copyrights for books was given for 14 years, renewable for another 14 years. alexander pope's translation of the iliad and odyssey made him financially independent. he collected advance payments from subscribers who would be listed in the book. a new book industry emerged in london with booksellers as master manufacturers who employed writers, authors, copyers, and subwriters. booksellers sold books of sermons, histories, political and literary satires, literary criticism, and dictionaries. there was a growing popularity of novels. books were expensive to buy. regular magazines on the new and strange were published. there were three daily, six weekly, and ten thrice yearly newspapers. newspapers increased in number from 8 founded in 1700 to a total of 25 in 1727. by 1753, there were over a million throughout the country. workmen usually began their day by reading a newspaper at a coffee house. authors of books which have been registered at the stationers hall had the sole liberty of printing and reprinting such book for 14 years. others who printed or sold or published such -forfeited the books and paid one penny for each sheet found in their custody, 1/2 to the queen and 1/2 to the suer. the printer had to give a copy of each book printed to the company of stationers, the royal library, the libraries of the oxford and cambridge universities, and certain other libraries. in 1775, the two universities in england, the four universities in scotland, and the several colleges of eton, westminster, and winchester were given in perpetuity a copyright in books given or bequeathed to them. the british museum was incorporated to hold the collections of robert cotton of manuscripts, books, records, coins, and medals and of hans sloane, which contained rare books, coins, precious stones, pictures, plants, and mathematical instruments and had been left to the public. italian opera was introduced in 1706 by georg handel on his visit to england. his music became the standard music of georgian england. the academy of ancient music was founded in 1710. it set the standard of selection and performance. in existence were the violin (including ones made by stadivari), viola, cello, double bass, oboe, trumpet, clarinet, bassoon, trombone, horn, flute, harp, organ, harpsichord, in which the strings were plucked, and piano, in which the strings are struck by little hammers. orchestras had at least thirty members. many hymns were written. painting by artists developed. gentlemen had portraits painted of their horses and dogs as well as of family. joshua reynolds painted the wealth and beauty of england. painters such as gainsborough did landscapes and dramatic history paintings too, but neither of these sold as well as portraits. scenery was painted for the theater. places of business had signs painted which portrayed animals. coaches were painted with mythological creatures and such. gentlemen collected antique statuary and painting, such as by rembrandt and rubens. in 1711 an academy of painting was founded, which included women painters. the first public exhibition of paintings was in 1760. the society of artists was formed in 1761 and incorporated by royal charter in 1765. this differentiated them from the painter-stainers company of face painters, coach painters, and house painters. the royal academy of london was founded in 1768 to merge all private academies and societies into one official body and to recognize the best artistic work. joshua reynolds was its first president. it was at first financed by the king. under george i, sculptors became distinct from masons. they did monuments and portrait busts of the royal family, nobles, and great men. from italian influence, palladian architecture came into vogue. it was typified externally by a panoramic look achieved by horizontal lines, balanced alternatives of plain wall and openings, and portico with a heavy pediment like the front of a roman temple. stucco was often used to plaster housefronts, flute columns, and ornament pediments. architects took students. designers of engraved, etched, and historical prints were given the sole right to print them for 14 years. copiers had to forfeit 5s. per print. foreigners were now interested in learning about english life, philosophy, and opinion. they learned english to read english literature such as shakespeare. no longer were france and italy the only centers of culture and influence on other nations. by 1713, england was the leading sea power by far. the royal society was still the principal focus of scientific activity. issac newton was its president for several years and drew in more foreigners. its members were mathematicians, chemists, botanists, physicians, engineers, authors, poets, and theologians. papers given there generated much discussion at its meetings. newton opined that small particles attract each other by some force in a similar way that large bodies attracted each other. this force in immediate contact was exceedingly strong and performed chemical interactions, but at greater distances had no effect. also there were local associations and societies. there were learned journals such as "philosophical transactions". drovers bought cattle in the countryside, drove them to big towns, and sold them to fattening graziers or fatted them themselves. then they were driven into town and sold to the wholesale butcher, who sold the carcass to the retail butcher, the hides to the tanner, and the bones to the glue maker. flocks of geese were also driven into towns, after their feet were given a protective covering of tar. there were also middlemen wholesalers for cheese, butter, cloth, and iron. there was a rage of distemper among the cattle so serious that to prevent its spread, the king was authorized by parliament to make regulations for prohibiting the removal or sale of cattle and for the burial of distempered cattle. later, the king was authorized to prohibit the killing of cow calves. no one was to sell any ox, bull, cow, calf, steer, or heifer until he had possession of such for forty days or else forfeit ten pounds, later, the king was authorized to regulate the movement of cattle from one place to another. the main industry of the country was still agriculture. in the countryside, about half the arable land was under the open field system, in which land was cultivated in common. enclosures of land were still taking place. the enclosures were now done by statutory commissions to ensure equitable allotments. agricultural improvements came first to enclosed land, which comprised about half of the agricultural land. in the 1733, jethro tull published a book about his 1701 invention of the seed-drill to first pulverize the soil for cultivation without manure and then to deposit seed at a uniform depth in regulated quantities and in rows instead of being thrown haphazardly. also explained was the horse-hoe to stir the soil about the roots of the plants to preserve moisture, promote aeration, admit warmth, and destroy weeds. there were more horses than oxen in use now in the fields. -the horse-hoe was first used by large independent farmers on enclosed land. also invented was a threshing machine with a set of sticks to replace hand threshing with flails. under-drainage as well as irrigation was practiced. lord townshend alternated turnips, grasses, and grain in his fields, and thus provided winter food for his cattle. the two-field crop rotation with fallow periods was often displaced by the three-field system rotating grain crops, legumes, and fallowness. independent farming gave rise to the improvement of breeds of livestock by selective breeding. enclosed land produced 26 bushels of grain compared to 18 bushels for common field land. it produced 9 pounds of sheep fleece compared to 3 1/2 pounds for common field land. overall, soils were improved by being treated with clay, chalk, or lime. artificial pasture was extended and there was increased use of clover, sainfoin, and rye-grass. grain productivity was four times that of 1200. a fatted ox was 800 pounds compared to the former 400 pounds which it weighed from the 1300s to the 1600s. the fleece of sheep increased fourfold. by statute of 1756, persons having rights of common in certain land may, by the major part in number and in value of each's tenement, enclose such land for planting and growth of timber or underwood. every village had a smith, carpenter, and miller. the larger villages also had a potter, a turner, a malster, a weaver, a tanner, and perhaps a mercer or grocer middleman. wheelwrights made ploughs, harrows, carts, and wagons. ploughs had one, two, or no wheels. poor farming families took up extra work in the villages such as making gloves, knitting stockings, or spinning yarn. craftsmen still helped farmers at harvest time. much of the rural population was now dispersed over the countryside instead of being concentrated in villages because so many small holders had sold out due to enclosures of farm land, especially of common land and waste land. the rural working class lived in two room cottages, with low ceilings, small windows, and an earth floor. patience was required for those willing to wait for an existing cottage in a village to be vacated. most laborers did not marry unless and until they found a cottage. ancient custom that a person could build a home for himself on waste land if he did it in one night was ceasing to be respected. farmers usually preferred employing day-laborers than keeping servants. there were many migrant workers, mainly from ireland, for the busy summer haymaking and harvesting. the children of laborers and of small farmers had little schooling because they were needed for work. they scared the birds, weeded the fields, picked the stones, tended the poultry, set beans, combed the wool, and collected the rushes and dipped them in the tallow. farm people relied on well water or rain water collected in lead cisterns. a farmhouse fireplace had pots hung from iron rods. saucepans sat on iron stands, which were stored above the mantel when not in use. spits were rotated by pulleys powered by the upward current of hot air or by a mechanical device. bacon was smoked in the chimney accessible by a staircase or upper floor. there still existed customary freeholders, who owned their land subject to certain customary obligations to the lord of a manor. the people displaced by enclosure became laborers dependent on wages or paupers. their discontent was expressed in this poem: "they hang the man and flog the woman that steals a goose from off the common but leave the greater criminal loose that steals the common from the goose." eventually there was some relief given to the poor workers. by statute of 1773, wastes, commons, and fields having several owners with different interests might by three-quarters vote in number and in value of the occupiers cultivate such for up to six years. however, cottagers and those with certain sheep walks, or cattle pasture, could not be excluded from their rights of common. by statute of 1776, the elizabethan statute restricting locations where cottages could be erected and their inhabitants was repealed because the industrious poor were under great difficulties to procure habitations. land could be rented out at ten times the original value. land was typically rented out for 7, 14, or 21 years. great fortunes were made by large landowners who built grand country estates. the manufacturers and merchants made much money, but agriculture was still the basis of the national wealth. as the population grew, the number of people in the manufacturing classes was almost that of the agriculturalists, but they had at least twice the income of the agriculturalists. the greatest industry after agriculture was cloth. most of this activity took places in the homes, but families could earn more if each family member was willing to exchange the informality of domestic work for the long hours and harsh discipline of the factory or workshop. more wool was made into cloth in the country. dyed and finished wool cloth and less raw wool and unfinished broadcloth, was exported. bleaching was done by protracted washing and open-air drying in "bleach fields". there were great advances in the technology of making cloth. thomas lombe, the son of a weaver, became a mercer and merchant in london. he went to italy to discover their secret in manufacturing silk so inexpensively. he not only found his way in to see their silk machines, but made some drawings and sent them to england hidden in pieces of silk. he got a patent in 1718 and he and his brother set up a mill using water power to twist together the silk fibers from the cocoons into thread -in 1719. his factory was five hundred feet long and about five stories high. one water wheel worked the vast number of parts on the machines. the machines inside were very tall, cylindrical in shape, and rotated on vertical axes. several rows of bobbins, set on the circumference, received the threads, and by a rapid rotary movement gave them the necessary twist. at the top the thrown silk was automatically wound on a winder, all ready to be made into hanks [coils] for sale. the workman's chief task was to reknot the threads whenever they broke. each man was in charge of sixty threads. there were three hundred workmen. lombe made a fortune of 120,000 pounds and was knighted and made an alderman of london. after his patent expired in 1732, his mill became the prototype for later cotton and wool spinning mills in the later 1700s. there were many woolen manufacture towns. clothiers might employ up to three thousand workers. at these, the spinning was done by unskilled labor, especially women and children in villages and towns. weaving, wool combing, and carding were skilled occupations. in 1733, clockmaker and weaver john kay invented a flying shuttle for weaving. it was fitted with small wheels and set in a kind of wooden groove. on either side there were two wooden hammers hung on horizontal rods to give the shuttle and to and fro action. the two hammers were bound together by two strings attached to a single handle, so that with one hand the shuttle could be driven either way. with a sharp tap by the weaver, first one and then the other hammer moved on its rod. it hit the shuttle, which slid along its groove. at the end of each rod there was a spring to stop the hammer and replace it in position. the flying shuttle doubled the weavers' output. now the broadest cloth could be woven by one man instead of two. this shuttle was used in a machine for cotton. but the manufacturers who used the flying shuttle combined together and refused to pay royalties to kay, who was ruined by legal expenses. now the price of thread rose because of increased demand for it. the weavers, who had to pay the spinners, then found it hard to make a living. but the process of spinning was soon to catch up. in 1738, john wyatt, a ship's carpenter who also invented the harpoon shot from a gun, patented a spinning machine whereby carded wool or cotton was joined together to make a long and narrow mass. one end of this mass was drawn in between a pair of rotating rollers, of which one surface was smooth and the other rough, indented, or covered with leather, cloth, shagg, hair, brushes, or points of metal. from here, the mass went between another set of rollers, which were moving faster than the first pair. this stretched the mass and drew it into any degree of fineness of thread by adjusting the speed of the second pair of rollers. then the thread went by a flier, which twisted it. after this the thread was wound off onto spindles or bobbins, whose rotation was regulated by the faster pair of rollers. or the mass could be drawn by rotating spindles directly from one pair of rollers. this machine was worked by two donkeys and was tended by ten female workers. because of bankruptcy in 1742, the invention was sold to edward cave, the editor of "gentleman's magazine". he set up a workshop with five machines, each fitted with fifty spindles and worked by water wheels. carding was done by cylindrical carding machines invented by lewis paul. in 1764, the plant was bought by carpenter and weaver james hargreaves. he was watching his wife spin when the spinning wheel tipped over onto its side. it continued to revolve, while the thread, held between two fingers, seemed to be spinning itself, even though the spindle was in a vertical instead of a horizontal position. it occurred to him that a large number of vertical spindles arranged side by side could be turned by the same wheel and that, therefore, many threads could be spun at once. he named his machine the "the jenny" after his wife. this "spinning jenny" could spin a hundred threads at a time. he patented it about 1770. the machine consisted of a rectangular frame on four legs. at one end was a row of vertical spindles. across the frame were two parallel wooden rails, lying close together, which were mounted on a sort of carriage and slid backwards and forwards as desired. the cotton, which had been previously carded, stretched, and twisted passed between the two rails and then was wound on spindles. with one hand the spinner worked the carriage backwards and forwards, and with the other he turned the handle which worked the spindles. in this way, the thread was drawn and twisted at the same time. the jenny did the work of about 30 spinning wheels. no longer did it take ten spinners to keep one weaver busy. but manufacturers refused to pay him royalties for his invention. he was offered 3,000 pounds for his rights in the jenny, but refused it. the courts held that the model of his jenny had been used in industry before it was patented and any rights he may have had were declared to have lapsed. nevertheless, he made over 4,000 pounds. the spinning jenny was used in many homes. richard arkwright came from a poor family and was taught to read by an uncle. he became a barber and made wigs. he taught himself crafts necessary to invent and patent in 1769 a spinning frame worked by a water wheel, which he called a" water frame". he strengthened cotton thread by adding rollers to the spinning process which were able to strengthen the cotton thread and make it of even thickness so that it could be used instead of costly linen as the warp. with capital from two rich hosiers, he set up a workshop next to a swift and powerful river running down a narrow gorge. then he turned his attention to weaving this thread with multiple spinning wheels in the first practical cotton mill factory. in 1773, he set up weaving workshops making pure cotton calicoes which were as good as indian calicoes. this was the first all-cotton cloth made in england. he had confronted and solved the problem of a statute of 1721 which proscribed wearing or using printed, painted, stained or dyed calicoes e.g. in apparel, bed, chair, cushion, window curtain, and furniture, except those dyed all in blue, or else forfeit 20 pounds by a seller, 5 pounds by a wearer, and 20 pounds by other users. the purpose was to provide wool-working jobs to the poor, whose numbers had been increasing excessively because of lack of work. arkwright argued that the statute should not include printed or painted cloth made in great britain in its ancient tradition of fustians with an all linen warp for strength and a cotton weft for fineness. this statute was so "clarified" in 1735. when wool-weavers had expressed their opposition to imported printed cottons and calicoes by tearing them off people, a statute of 1720 provided that any one who willfully and maliciously assaulted a person in the public streets or highways with an intent to tear, spoil, cut, burn, or deface the garments or clothes of such person and carried this out was guilty of felony punishable by transportation for seven years. the prohibition against the manufacture and wearing and using of pure cotton fabrics came to an end in 1774 on arguments of arkwright made to parliament that his pure cottons would bleach, print, wash and wear better than fustians. in 1775, arkwright added machines to do work prefatory to spinning. raw cotton was first fed by a sloping hose to a feeder that was perpetually revolving. from here it went a carding machine of three rollers of different diameters covered with bent metal teeth. the first, with teeth bent in the direction of its revolution, caught up the cotton fibers. the second, revolving in the same direction but much faster, carded the fibers into the requisite fineness by contact with the third, whose teeth and motion were in the opposite direction. next, a crank and comb detached the carded cotton so that it came off as a continuous ribbon. then the ribbon went into a revolving cone, which twisted it on itself. eventually arkwright became rich from his creation of the modern factory, which was widely copied. he established discipline in his mills and he made his presence felt everywhere there, watching his men and obtaining from them the steadiest and most careful work. he provided housing and services to attract workers. after cotton, the inventions of the spinning jenny and the waterpowered frame were applied to wool. silk and cotton manufacture led the way in using new machinery because they were recently imported industries so not bound down by tradition and legal restraint. yarn production so improved that weavers became very prosperous. cards with metal teeth challenged the use of wood and horn cards with thistles on them in carding wool. merchants who traveled all over the world and saw new selling opportunities, and therefore kept encouraging the manufacturers to increase their production and improve their methods. factory owners united to present suggestions to parliament. manufacturing broke loose from traditional confines in several ways. to avoid the monopolistic confines of chartered towns, many entrepreneurs set up new industries in birmingham or manchester, which grew enormously. manchester had no municipal corporation and was still under the jurisdiction of a manor court. it sent no representative to the house of commons. all over the country the justices of the peace had largely ceased regulating wages, especially in the newer industries such as cotton, where apprenticeship was optional. apprenticeship lapsed in many industries, excepting the older crafts. several legal decisions had declared seven years practice of a trade as good as an apprenticeship. apprentices still lived in their masters' houses and were still treated as family members. the regulations of the cutlers' company remained in force as its masters used their great manual skill to make cutlery in their own homes with the help of their children and apprentices. trades in some towns which had guild regulations that had the force of law hung on to their customs with difficulty. although there were few large factories in the country under effective management of a capitalist, trade unionism was beginning as two distinct classes of men were being formed in factories. the factory owner was so high above his workmen that he found himself on the same level as other capitalists, the banker, who gave him credit, and the merchant, who gave him customers. journeymen in factories could no longer aspire to become masters of their trade and no longer socialized with their employers. hard and fast rules replaced the freedom of the small workshops. each worker had his allotted place and his strictly defined and invariable duty. everyone had to work, steadily and without stopping, under the vigilant eye of a foreman who secured obedience by means of fines, physical means, or dismissals. work started, meals were eaten, and work stopped at fixed hours, signaled by the ringing of a bell. factory hours were typically fourteen hours or more. organized resistance, as usual, began not with those most ill-treated, but with those men who had some bargaining power through their skills. wool-combers, who worked next to a charcoal stove where they heated the teeth of the comb, were the most skilled of the cloth industry were hard to replace. since they were nomadic, they quickly organized nation-wide. they agreed that if any employer hired a comber not in their organization, none of them would work for him. they also would beat up and destroy the comb-pot of the outsider. in 1720 and 1749, the tiverton wool-combers objected to the import of combed wool from ireland by burning irish wool in clothiers' stores and attacking several houses. they had strike funds and went on strike in 1749. their bloody brawls caused the military to intervene. then many of them left town in a body, harming the local industry. the earnings of wool-combers was high, reaching from 10s. to 12s. a week in 1770, the highest rate of a weaver. in 1716, the colchester weavers accused their employers of taking on too many apprentices. when the weavers organized and sought to regulate the weaving trade, a statute was passed in 1725 making their combinations void. strike offenses such as housebreaking and destruction of goods or personal threats had penalties of transportation for seven years. still in 1728, the gloucester weavers protested against men being employed who had not served their apprenticeship. when the journeymen tailors in and around london organized a union, a statute made their agreements entering into combinations to advance their wages to unreasonable prices and to lessen their usual hours of work, illegal and void, because this had encouraged idleness and increased the number of poor. tailors' wages were not to exceed 2s. per day and their hours of work were to be 6 a.m. to 8 p.m. for the next three months, and 1s.8d. per day for the rest of the year. a master tailor paying more would forfeit 5 pounds. a journeyman receiving more was sent to the house of correction for 2 months. justices of the peace could still alter these wages and hours depending on local scarcity or plenty. despite this statute, the journeymen tailors complained to parliament of their low wages and lack of work due to their masters calling them to work only about half the year. there was much seasonal fluctuation in their trade as there was in all trades. the slack period for the tailors was the winter, when the people of fashion retired to their country estates. after their complaint, their wages then rose from 1s.10d. per day in 1720, to 1s.8d.2s. in 1721, to 2s.2s.6d. in 1751, to 2s.2d.2s.6d. in 1763, to up to 2s.7 1/2 d. in 1767, and to 3s. in 1775. foremen were excluded from wage control. when they complained of their long hours, which were two hours longer than the 6 a.m. to 8 p.m. of most handicraft trades, their hours were reduced in 1767 by one hour to 6 a.m. to 7 p.m. and their pay was set at 6d. per hour for overtime work at night during periods of general mourning, e.g. mourning for a deceased courtier. their work hours were lowered another hour to 6 a.m. to 6 p.m. in 1768. the stocking frame-knitters guild, which had been chartered in 1663, went on strike to protest the use of workhouse children as an abuse of apprenticeship which lowered their wages. they broke many of their frames, which belonged to their employers, to limit their number. in 1749, combinations to advance wages, decrease hours of work, or regulate prices were declared void for journeymen dyers, journeyman hot pressers, all wool workers, brickmakers and tilemakers, journeymen servants, workmen, laborers, felt and hat makers, and silk, linen, cotton, iron, leather, and fur workers in and around london. the penalty was prison or hard labor at a house of correction for three months without bail. in 1756, justices of the peace were to determine the rates of wages of wool workers according to numbers of yards. but this was repealed the next year to prevent combinations of workers. wage agreements between clothiers and weavers were declared binding. clothiers not paying wages within two days of delivery of work forfeited 40s. in 1763 the silk weavers in east london drew up a scale of wages, and upon its being rejected, 2000 of them broke their tools, destroyed the materials, and left their workshops. a battalion of guards had to take possession of the area. in 1765, the silk weavers marched on westminster to stop the import of french silks. in 1768, the weavers rebelled against a 4d. per yard reduction in their wages, filling the streets in riotous crowds and pillaging houses. after the garrison of the tower came, the workmen resisted with cudgels and cutlasses, resulting in deaths and woundings. the throwsters [those who pulled the silk fibers from the cocoons of the silk worms and twisted them together to make a thread] and the handkerchief weavers also became discontent. a battle between soldiers and silk weavers at their meeting place resulted in several men on both sides being killed. in 1773, wages and prices for the work of journeymen silk weavers in and around london were designated to be regulated by the mayor and justices of the peace. foremen were excluded. no silk weaver could have more than two apprentices or else forfeit 20 pounds. journeymen weavers entering into combinations forfeited 40s. this statute satisfied the weavers, but they formed a union to ensure that it was followed. in 1750, 1761, and 1765, there were strikes which stopped the work of the coal industry and harbor at newcastle for weeks. in 1763, the keelmen formed a combination to force their employers to use the official measure fixed by statute for the measurement of loads of coals. the book "consideration upon the east-india trade" dating from 1701 advocated free foreign trade. it argued that the import of goods from india not only benefited the consumer but also the nation, because it was a waste of labor to use it in producing goods which could be bought cheap abroad. this labor could be better put to use at easily learned plain work in the new industries. also the low cost of imported goods would motivate the invention of machines in the nation which would be even more efficient in manufacturing these goods. but english manufacturers were still suspicious of free trade. making beer and distilling gin from barley were widespread. the pastimes of gambling and drinking were popular with all classes. in the trades, this was promoted by the uncertainties of life and work and a general sense of instability. many london tradesmen started their day with a breakfast of beer, bread, and cheese, the traditional breakfast of countrymen. gambling and dissipation reduced some london men with good businesses to destitution, the work house, or street begging. drunken gentlemen played pranks such as imitating a woman in distress or throwing a person in a horse trough. some innkeepers had "straw houses" where customers who were so drunk they were unable to walk home could sleep in fresh straw. a person could get drunk for a few pence. gambling with cards was a popular pastime after dinner. cricket matches were played by all classes instead of just by humbler people; there were county cricket matches. gentlemen often took their coachmen with them to public events such as cricket matches. tennis was a sport of the wealthy classes. billiards, chess, and games with cards or dice were played, especially in alehouses. there was horse racing on any open ground to which people brought their horses to race. jockeys tried to unseat each other. hunting of rabbits and then foxes replaced deer hunting. bird and duck hunting was usually with flint lock guns instead of hawks, as the hedges provided cover from hawks. there was fishing with line, hook, and bait. watching the hanging of felons, about 35 a year in london, was popular, as was going to bedlam to watch for a fee the insane being flogged. people went to the tower to try to get a glance at a famous prisoner looking through a window or taking a walk along the battlements. besides the grand pleasure gardens for gentry, there were lesser pleasure gardens in london for working families, which offered fresh air, tea, beer, swimming, fishing, courting, bowling, and cheap entertainment. running, vaulting, and leaping were still popular in the countryside. fairs had amusements such as fire swallowers, ventriloquists, puppet shows, acrobats, jugglers, animal performances, pantomimes, boxing, dwarfs, and albinos, but less trading. in 1769 was the first circus. circuses included feats of horsemanship and clowns. there was also eating and drinking competitions, foot races, football, archery, some wrestling, and some bowling on greens or alleys. in winter there was ice skating with blades and sliding. the right of public access to st. james park became entrenched by the 1700s. there was sailing, rowing, swimming, and hopscotch. george iii made sea-bathing popular and it was supposed to be good for one's health. there was steeple chasing as of 1752. horse-racing was given rules. on sunday, there was no singing, music playing, dancing, or games, but the bible was read aloud, prayers were said, and hymns were sung. sabbath-breakers were fined by magistrates. men often spent sunday in a tavern. in general, commodity prices were stable. but when harvests were poor, such as in 1709 when there was famine, and between 1765 and 1775, bread prices rose. the price of wheat in london, which since 1710 had been between 25s. and 45s., rose to 66s. in 1773. then the poor engaged in food riots. these riots were often accompanied by mob violence, burning, and looting of grain mills, shops, and markets. the english economy was so dependent on foreign trade, which had trebled since the 1710s, that the slightest disturbance in the maritime trade threatened the english with starvation. in many localities the men in need of parochial relief were sent around from one farm to another for employment, part of their wages being paid from the poor rates. the poor often went from parish to parish seeking poor relief. settled people tended to fear wandering people. parishes sought to keep down their poor rates by devices such as removing mothers in labor lest the infant be born in the parish. so a statute was passed that a child born to a wandering woman could not have the place of birth as his settlement, but takes the same settlement as his mother. another device to prevent others from establishing settlement in a parish was for its farmers to hire laborers for only fifty-one weeks. also, some apprentices were bound by means other than indenture to avoid settlement. laborers who came to work in industries were refused settlement and sent back to their original parishes whenever they seemed likely to become dependent on the rates. statutes then provided that a parish must give settlement to apprentices bound for forty days there, not only by indenture, but by deed, writings, or contracts not indented. in 1722, parishes were authorized to purchase houses in which to lodge or employ the poor and to contract with any person for the lodging, keeping, maintaining, and employing of the poor. these persons could take the benefit of the work, labor, and service of these poor, which was then used for the relief of other poor. the poor refusing such lodging could not then get relief. many of the poor starved to death. the propertied classes turned a blind eye to the predicament of the poor, opining that they were idle or could save more and did not need higher earnings. charitable organizations gave to the poor and set up all day sunday schools to set wayward children on a moral path. the sunday schools could accommodate children who worked during the week. punishment of children by parents or others could be by whipping or even sitting in stocks. about half of the people were dependent on poor relief or charities. desertion by a man of his family was a common offense. parishes providing upkeep for the family sent men to find the errant husbands. the parish would ask unmarried mothers who was the father of their child and then force him to marry her or pay for the upkeep of the child. he often made a bargain with the parish to release him of his obligation for a sum of money paid to the parish. but many young parish children died of neglect, and later, parishes were required to list children under four to aid in accounting for them. divorces were still few and expensive, but increasing in number; there were more 60 in this period. it was easier for a man to get a divorce for one act of adultery by his wife, than for a wife to get one for habitual unfaithfulness. vagrants and other offenders could be committed to houses of correction as well as to county gaols, because of the expense of the latter. crime was exacerbated by orgies of liquor drinking by the common people, especially between 1730 and 1750, the sale of which did not have to be licensed as did ale. in 1736, it was required that retailers of brandy, rum, and other distilled spirituous liquors be licensed and to pay 50 pounds a year for their license, because excessive use had been detrimental to health, rendering persons unfit for useful labor and business, debauching their morals, and inciting them to vices. only persons keeping public victualing houses, inns, coffee houses, alehouses or brandy shops who exercised no other trade were allowed to obtain a license. this excluded employers who had sold liquors to their journeymen, workmen, servants, and laborers at exorbitant prices. street vendors who sold liquors had to forfeit 10 pounds. a duty of 20s. per gallon was imposed on the retailers. there were riots in london against this statute and its new duties. there had been a tremendous growth in liquor drinking, which did not stop but went underground after this statute. in 1753, a penalty of 10 pounds or hard labor for two months was made for selling spirituous liquors without a license. also licenses were restricted to people who were certified by four reputable and substantial householders to be of good fame and sober life and conversation. sellers had to maintain good order in their premises or else forfeit 10 pounds. about 1754 only innkeepers, victualers, and vendors paying rent of at least 200 shillings could sell gin at retail. the punishment for the second offense was whipping and imprisonment. that for the third offense was transportation out of the country. in 1751, additional duties were placed on spirituous liquors to discourage immoderate drinking going on by people of the meanest and lowest sort to the detriment of the health and morals of the common people. in 1761, these duties were again raised. in 1768, officers were authorized to seize all horses, cattle, and carriages used to transport foreign spirituous liquors for which duties had been evaded. in 1773, the penalty for selling without a license was raised to 50 pounds, which could not be mitigated below 5 pounds. half the forfeiture was to go to the suer. the informer system for enforcing laws had its drawbacks. informers were not trained and were sometimes retaliated against for informing. sometimes this meant being tortured to death. sometimes there were schemes in which a leader of thieves, would take a profit in the stolen goods by posing as a good citizen who tracked down and returned them to the owners for a fee. also he might inform on his companions to get the reward for informing or to punish a troublesome one. sometimes the owner of goods was involved in a fake robbery. an effort in 1749 to turn the whole haphazard system of informers, into a specialized organization for the detection and apprehension of criminals had caused a mob to form and make threats. englishmen associated a police force with french tyranny. nevertheless, about 1750, sir john fielding, a bow street magistrate, and his half-brother picked men to police the street under the direct control of the bow street magistrates. this first police district made an impact on the increasing violence of the times. in 1753, a proposal before parliament to have a national census was also defeated by public fear of liberty being curtailed by having to make account of the number and circumstances of one's family and giving out information that could be used by enemies both in the realm and abroad. in 1714, the mercury thermometer was invented by gabriel fahrenheit of germany; this was much more accurate than the alcohol and water thermometers. sweden's anders celcius invented the celsius scale. the hydrometer, which measures air humidity, was also invented. these made possible weather forecasting. in 1718, the french chemist etienne geoffroy published a table of affinities among chemical substances, a precursor to the periodic table of elements. carolus linneaus, a swedish naturalist and botanist, established the scientific method of naming plants and animals by genus and species. when he showed that there was a sexual system in plants, church authorities were so shocked that they suppressed this knowledge as they did other scientific knowledge. rev. stephen hales made ventilators for ships, prisons, and granaries, using the method of injecting air with bellows. this saved many lives in the prisons. in 1727, he discovered that water that plants lost by evaporation was restored by the roots up the stems. he found that gas could be obtained from plants by dry distillation and invented a way to collect gases by heating certain substances. hans sloane, the son of a receiver-general of taxes, who became a physician, had collected hundreds of species of plants in jamacia while physician to its governor. he became physician to george ii and was a benefactor to many hospitals and devised a botanic garden in london for the society of apothecaries. italian luigi marsigli started the science of oceanography with a treatise discussing topography, circulation, ocean plants and animals, along with many measurements. frenchman jean-etienne guettard prepared the first true geological maps, showing rocks and minerals. he identified heat as the causative factor of change in the earth's landforms. john mitchell studied earthquakes. in 1735, george hadley, a london lawyer and philosopher, determined that the cause of the prevailing westerly winds was the rotation of the earth to the east. benjamin franklin in 1743 observed that a particularly violent storm occurred in boston a day after a particularly violent occurred in philadelphia, and realized that they were the same storm, even though the storm's surface winds were from the northeast. he determined that atlantic coastal storms traveled from the southwest to the northeast. in 1770, he prepared the first scientific chart of the gulf stream. daniel bernoulli, a swiss university lecturer in physics, mechanics, medicine, and anatomy, proved his theorem that any degree of statistical accuracy can be obtained by sufficiently increasing the observations, thereby also representing the first application of calculus to probability theory. in 1738, he showed that as the velocity of horizontal fluid flow increases, its pressure decreases. this followed from his theorem that the total mechanical energy of a flowing liquid, comprising the energy associated with fluid pressure, the gravitational potential energy of elevation, and kinetic energy of fluid motion remains constant; that is, the mechanical energy is conserved. this was the first mathematical study of fluid flow. he demonstrated that the impact of molecules on a surface would explain pressure, and that assuming the constant random motion of molecules, pressure and motion will increase with temperature. he explained the behavior of gases with changing pressure and temperature, establishing the kinetic theory of gases. jean nollet from france discovered osmosis, the passage of a solution through a semi-permeable membrane separating two solutions with different concentrations. in 1754, scotsman physician joseph black identified carbon dioxide, the first gas recognized as distinct from everyday breathing air. he did this by using a balance to weigh alkalies before and after exposure to heat. they lost weight by losing carbon dioxide. his development of the concept of latent heat, the quantity of heat absorbed or released when a substance changes its physical phase at constant temperature, was the first application of quantitative analysis to chemical reactions. he ascertained the effects of carbon dioxide on animals and its production by respiration, fermentation, and burning of charcoal. at this time, all flammable materials were thought to contain "phlogiston", which was given off as they burned and was associated with the transfer of heat. plants were thought to remove phlogiston from the air and therefore burned when they were dry. in 1773, joseph priestley, a nonconformist minister, schoolmaster, and tutor, identified oxygen by heating red oxide of mercury. he had become interested in the study of gases by watching the process of fermentation in a brewery next to his house. using a candle, mice, and plants in jars sealed over water, he showed that the processes of combustion, respiration, and putrefaction caused one-fifth of air exposed over water to disappear, and that plants restored air vitiated by these processes. this discovery of where breathable air comes from helped explain the system of life on the planet. when he isolated oxygen, he noted that it was better than air in supporting respiration and combustion. hydrogen (inflammable air) and nitrogen were discovered. the differences between acids, bases, and salts and their relationship to one another became understood. there was some theoretical as well as empirical knowledge about metals, e.g. in boiling points, intermetallic compounds, and changes in properties. in 1742, benjamin frankin invented the franklin stove, which greatly improved heating efficiency. as a freestanding cast-iron fireplace, it supplied heat in all directions instead of only from the one direction of the usual wall fireplace. also, the heat absorbed by its cast-iron sides provided warmth even after the fire went out. static electricity was being discerned. it had been noticed that shaking a mercury barometer produced a strange glow in its "vacuum". experiments showed that a glass rubbed in vacuo would shine brightly and that an exhausted glass globe rapidly whirled on a spindle and rubbing against the hand produced a brilliant glow. and further, as newton wrote: "if at the same time a piece of white paper or white cloth, or the end of ones finger be held at the distance of about a quarter of an inch or half an inch from that part of the glass where it is most in motion, the electric vapor which is excited by the friction of the glass against the hand, will by dashing against the white paper, cloth, or finger, be put into such an agitation as to emit light, and make the white paper, cloth, or finger, appear lucid like a glowworm". in the study of electricity, conductors and insulators were recognized. there were demonstrations of electrical phenomena such as seeing the ignition of brandy by a spark shooting from a man's finger and the feeling the transfer of an electrical impulse created from a rubbed glass globe among a circle of people by their holding hands. in 1733, frenchman charles dufay discovered that there are two types of static electric charges, and that like charges repel each other while unlike charges attract, linking electricity to magnetism. in 1750, benjamin franklin "caught" lightning with a sharp pointed wire attached to the top of a kite which led down to a key at the other end. when a thunder cloud electrified the kite, a charge was seen coming from the key to an approaching finger. this charge was then stored in an early type of capacitosr, a1745 leyden jar, and then reproduced to create the same feeling of transfer of electrical impulse among a circle of hand-holders, thereby illustrating that it was the same phenomenon as electricity. this countered the theological belief that thunder and lightning were signs of divine displeasure or the work of the devil. franklin invented the lightening rod, which was then used to protect buildings. about ten years later, the first lightening rod on an english church was erected, which showed the church's acceptance of his theory. franklin theorized that there were electric charges everywhere and designated them as positive or negative. he observed that opposite charges attracted each other, but that like charges repelled each other. in 1766, joseph priestly did an experiment suggested by franklin and showed that electrical force follows the same law as gravitational force; that is, that the attraction or repulsion between two electrical charges varies inversely in proportion to the square of the distance between them. joseph-louis lagrange from france developed differential equations. natural history museums were established. a group split off from the royal society to show collections of curiosities. in 1754, a self-educated mechanic founded the society for the encouragement of arts, manufactures, and commerce. it had sections on agriculture, manufactures, mechanics, chemistry, liberal arts, and trade and colonies. it sponsored contests at which prizes were given, such as that in 1761 for the best invention of a machine that would spin six threads of wool, flax, cotton, or silk at one time with only one person attending it. machines still mostly relied on human, animal, and water power. abraham darby was a quaker and millwright who made large cooking pots of iron, which cost less than bronze. around 1709, he experimented with various substances to take the place of wood charcoal in iron smelting. coal was a remote possibility. in forging or working metals coal had more or less the same qualities as wood charcoal, but this was not the case in smelting ores, especially iron ore. coal contained sulphur compounds which caused the iron ore to deteriorate. so he controlled the burning of coal to burn out these impurities, which produced coke. his son took over after his death and improved the methods of coking, strengthened the bellows, and added ore limestone and other reagents to the mixture. by 1756, his large blast furnace using both pit coal and wood charcoal was very productive. he made iron goods of such quality as those imported. in 1767, richard reynolds replaced the wooden rails connecting a blast furnace to mines with cast iron rails. he had apprenticed as a grocer and then became a partner in a large ironworks of darby with a man whose daughter he married. after darby died and before darby's sons became of age, reynolds was in charge of the ironworks. he cast cylinders of the early steam engines. in 1749 john roebuck, a physician and son of a prosperous manufacturer of sheffield goods, found a cheaper way to manufacture sulphuric acid. he did this by using leaden chambers instead of glass globes to collect the vapor from burning nitre and sulphur over water. this reduced the cost of sulfuric acid to one-fourth of its previous cost, so that sulfuric acid came to be used to bleach linen instead of sour milk. he also made cast iron into malleable iron by smelting iron using coke from pit-coal instead of charcoal. but flooding in his mines and further ventures resulted in his ruin and bankruptcy. thomas newcomen, a baptist ironmonger, blacksmith, and locksmith, supplied iron tools to mine workers. he was aware of the problem of flooding of mines and the awkward system of pumps which were used one above the other and were powered by teams of horses. he made a very valuable contribution to power generation by inventing the atmospheric pressure steam engine with piston around 1712. he did this by connecting theory with experiment, through the use of scientific knowledge, especially the royal society's investigation into atmospheric pressure. first cold water was poured on a cylinder in which a piston could move up and down. this caused steam inside the cylinder to cool and condense into water. the vacuum created inside the cylinder under the piston caused atmospheric pressure on top of the piston to push the piston down. the piston was attached by a rod to the end of a beam which end then swung down from a point on a vertical stand to which it was attached. when the beam swung, its other end, which was attached to a rod connected to a pump, rose, thus working the pump. then steam from water heated in a boiler under and communicating with the cylinder was allowed into the cylinder under the piston. this overcame the atmospheric pressure on the piston from above and allowed the piston to rise by a counterweight on the rod over and connecting to the pump. boys opened and closed the steam valve, which let steam into the cylinder from below, and the water valve, which let cold water pour on the cylinder from above. then the boys were replaced by the valves being connected to the swinging beam which caused them to open and close at perfectly regular intervals. a story gives the credit for this improvement to an inventive valve boy who wanted to play with his friends. in 1712, the mining industry used this steam engine to pump water out of mine-shafts which had flooded. these engines were also used to supply water to reservoirs' locks at canals, and drinking water facilities in towns. one such engine developed power equivalent to fifty horses working at one sixth the cost. it was the first automatic machine since the clock. then james watt invented the steam engine which used steam as a force acting on the piston. watt made his living making scientific instruments for glasgow university. around 1764, he was fixing one of newcomen's engines belonging to the university, when he saw its inefficiencies, such as the loss of heat when the cylinder was cooled. he saved this heat energy by having the steam condensed in another vessel distinct but connected to the cylinder. this condenser was kept constantly cool by cold water. so the condensed steam was pumped back into the boiler and it circulated continuously, thus obviating the need for constant resupply of water. in order to avoid the necessity of using water to keep the piston air-tight, and also to prevent the air from cooling the cylinder during the descent of the piston, he used the expansion of the steam to push the piston instead of atmospheric pressure. then, in order to expand the use of the steam engine beyond that of a pump, he converted the oscillating motion of the beam into rotary motion. he formed a partnership with john roebuck, who had a two-thirds interest. but when roebuck needed money, he sold his interest to matthew boulton. boulton wanted better power that that of his watermill for his workshops that made metal buttons, watch chains, shoebuckles of engraved steel, ornamental bronzes, vases, chandeliers, tripods, silver and plated wares, and imitation gold and tortoiseshell work. in dry weather, about eight horses were needed to aid in driving the machinery. a steam pump could pump water from the bottom of the watermill to the top to be used again. he had built up this factory of five buildings and six hundred workers, with 9,000 pounds derived from his marriage to an heiress. by 1774, the partnership had built a model steam engine with rotary power whose design could be sold. the price of the engine was set as the amount of money saved on fuel costs in the first three years of its operation. this machine was a relatively economical user of energy, capable of performing almost any kind of work. about 1750, john wilkinson, the son of a farmer who also oversaw an iron furnace, substituted mineral coal for wood charcoal in the smelting and puddling of iron ore. in 1766, he made it possible to transport coal out of mines on rail wagons drawn by horses. as father of the iron industry, he made iron chairs, vats for breweries and distilleries, and iron pipes of all sizes. with his invention of the first precision boring machine, he provided watt with metal cylinders of perfectly accurate shape, which were necessary for the smooth working of watt's steam engine. in 1775 he bought a pumping steam engine from boulton and watt's company for his ironworks. it pumped three times as fast as newcomen's engine. watt's steam engine came to be used for power-loom weaving and then for all sorts of manufactures. it would put england ahead of every manufacturing country in the world. millwrights built, installed, and later designed not only steam engines but the machinery that they drove. these men were essential in setting up the first factories. they were the most imaginative and resourceful craftsmen. they knew how to use a turner's, a carpenter's and a blacksmith's tools and had supervised or done smith work, brick-laying or stone-mason's work in erecting and maintaining windmills with their many gears and bearings. there was a good deal of variety in mills, as well as in the structure and workmanship of them, some being worked by horses, some by wind, and others by water. they had some knowledge of arithmetic and practical mechanics. they could draw out a plan and calculate the speed and power of a wheel. although technically in a branch of carpentry, the millwrights learned to work with metal as well. metal was superior to wood not only because of its strength but because wood parts were irregular in motion and wore out rapidly. so iron and brass parts came to replace wood and leather parts. in 1728, j. paine got a patent for rolling iron instead of hammering it. the iron bars, being heated in a long hot arch or cavern passed between two large metal rollers, which had certain notches or furrows on their surfaces. clockmaker and quaker benjamin huntsman was struck with the difficulty of finding finely tempered steel for the springs of his watches and pendulums of his clocks. he experimented for years to find a homogeneous and flawless metal, and finally, in 1740, invented cast steel, which had high tensile strength and was much harder than ordinary steel. he did this by remelting refined high quality wrought iron bars at very high temperatures in sealed fireclay crucibles, together with small quantities of charcoal and ground glass as reagents. this distributed the carbon evenly in the metal, which hammering could not do. he approached the sheffield cutlers, who finally agreed to try his cast steel for fear of losing their business to some other manufacturers who were approaching huntsman. since huntsman had no patent, he worked at night and employed only men who would keep his secret. his steel was made at night. his factory became prosperous about 1770 and the excellence of his steel manufacture was never equaled. steel and wrought iron was scarce and expensive. around 1748, iron founder samuel walker, discovered huntsman's secret by appearing at huntsman's factory disguised as a shivering tramp who asked to warm himself by the furnace fire. he feigned sleep while watching the whole process. when he began to make cast steel, his annual output grew from 900 pounds in 1747 to 11,000 pounds in 1760 and he made a fortune. silver was plated over copper from 1751. white metal from tin and antimony was used from about 1770. the brass industry was beginning to produce brass from copper and zinc that was as good as foreign brass. the secret of plate-glass manufacture came to england in the 1770s. in 1773, a corporation was set up for the manufacture of plate glass. it could raise joint-stock because of the great risk and large expense of the undertaking. in 1775, chemist william cookworthy was given a fourteen year patent for the discovery of certain clay and stone in england from which he made england's first true porcelain, i.e. that which could sustain the most extreme degree of fire without melting, and also had grain as smooth and lustrous, and the transparency and beauty of color, equal in degree to the best chinese or dresden porcelain. the import duties on diamonds, pearls, rubies, emeralds and other precious stones and jewels was dropped to increase the business of cutting and polishing them. the world's first chocolate factory was set up in england in 1728. milk was added to chocolate. the fanmakers were incorporated in 1709. a linen company to sell cambricks [a fine white linen] and lawns [a thin and fine linen] was incorporated in 1763. a free market for fish was established in westminster to supplement the free fish market in london to prevent forestalling and monopolizing of the fish industry and to increase the number of fishermen. duties for its maintenance were paid by the fishermen. certain men were given the right to incorporate fisheries of white herring for twenty one years to improve the fisheries and give employment to the poor. they were authorized to sell subscriptions and to build ships provided the fishery employ 100,000 in such fishery. there were restrictions on taking fish from rivers during their breeding season. herring fishermen were allowed to land and dry their nets and erect tents and pickle, cure, and reload fish on uncultivated land up to 100 yards beyond the high water mark all any shore, forelands, harbors, and ports, without paying the landholder. later, a bounty of 30s. per ton was authorized to be given for vessels that were fitted out and used for white herring fishery. anyone wishing to be admitted to the levant (turkey) trading company was to be made free of such on paying 20 pounds, so that this trade might be increased. in the 1760s the first cooking school was established by mrs. elizabeth raffald, a servant. as for health, there were many occupational hazards. these included paralysis by mercury of refiners of silver and gold, paralysis by mercurial fumes of molten lead by plumbers, palsy of glaziers working with melted lead and of watch gilders, lead poisoning of painters, blinding by sawdust of sawyers, and the affects of fumes on pewterers and letter founders. particles of copper were breathed in by copper workers, whose hair and beards then turned green. braziers became deaf. hairdressers, bakers, masons, bricklayers' laborers, coal heavers, chimney sweeps, flax and feather dressers, and workers in leather warehouses suffered pulmonary diseases. chimney sweeps also had warty skin cancer from their bodies being habitually covered with soot and the lethal cancer of the scrotum. working with charcoal fires affected confectioners, chocolate makers, and sail-cloth makers. tanners, catgut makers, and tallow-candle makers became nauseous. heavy work weakened many bodies and caused hernias. bending over work for long hours caused stooped posture and hump backs. the association between dirt and disease was just beginning to be made. the principles of infection and hygiene were not well understood. bathing every couple of months was not unusual. there was some theological feeling that cleanliness betokened pride and filthiness humility. most houses had a bathtub that could be placed beside the fire in a bedroom. about 80% of the population had been getting smallpox, which blinded, maimed or disfigured many. deaths from smallpox were only occasional in the country, but constant in london, where about 13% of every generation died from it. making death commonplace, especially in the winter months when thick, dirty clothes were worn day and night, were typhus, which was carried by lice; typhoid, which was spread by flies from horse dung; tuberculosis; and influenza. dysentery and diarrhea made death commonplace especially in the summer when flies transmitted bacteria from filth to food and the water was its most foul. there was great meaning in the prayer "now i lay me down to sleep; i pray the lord my soul to keep; if i should die before i wake, i pray the lord my soul to take." thyphus spread easily in hospitals and gaols where vermin could live in the beds made of wood. colds and toothache were also common. venereal disease was not uncommon among the well-to-do in london. condoms were used to deter disease, but were still crude, coarse, uncomfortable, and unreliable. london had almost double the mortality rate of the nation. the number of baptisms in london were about 80% of its burials. about 40% of the deaths in london were among children under two, due to infantile diseases fostered by malnutrition, maternal ignorance such as giving babies adult food, ill-health, bad water, dirty food, poor hygiene, and overcrowding. many children died from diptheria, measles, scarlet fever, and smallpox. ten or twelve children with three or four surviving was a common family pattern. many well-to-do in london kept their children in the country for their better health. no matter what the ailment, physicians regularly bled patients and often gave them enemas with wooden funnels. sometimes a blister or irritant was applied to the skin to draw out the evil humors. cupping was used to provide suction to remove pressure from various parts of the body. also used were poultices, ointments, and herbal treatments, notably quinine. opium was given to deaden pain. there were about 70 drugs in use. charms, spells, astrology, and folk remedies still played a major role in medicine. a physician attended surgeries to give advice. physicians could visit apothecary shops once a year and throw away any drugs falling below an arbitrary standard of excellence. in 1703 the house of lords decided a jurisdictional contest between the college of physicians and the society of apothecaries. it permitted the apothecaries to direct the remedies as well as to prepare them, although they could only charge for the drugs they provided. the poor sought advice from apothecaries. there was progress in health. scurvy virtually disappeared as a cause of death due to the eating of more vegetables. people were cleaner when wearing cotton, which had to be washed. in 1721, free inoculations for smallpox began in england, pioneered by lady mary wortley montague, also a poet and letter writer. she led the way by having herself and her son inoculated. theologicians denounced this practice as a diabolical interference with disease sent by providence for the punishment of sin. sarah wallen mapp was a famous bone-setter. in 1727 surgeon william cheselden, whose master was specially licensed to perform the operation of removing stones in the hospital, reduced the death rate for removing stones due to hemorrhage, shock, and infection down to 17% by his invention of a lateral operation. he also published an anatomy book and treated certain kinds of blindness by forming an opening in the eye to serve as an artificial pupil. in 1736, claudius aymand conducted the first successful appendectomy. nutritional deficiency diseases were beginning to be understood. in 1753, james lind, a surgeon in the navy who noted that more men died of scurvy than in battle, published his work on his dietary controlled experiment on seamen showing that oranges, lemons, limes, green food, and onions cured scurvy. he published his methods of prevention and cure of malarial fevers and his method of disinfecting ships with the smoke of wood and gunpowder. in 1761, he discovered that steam from salt water was fresh, and proposed a method of distillation to supply ships with fresh water. in 1761 giovanni morgagni from italy opined that disease resulted from a breakdown of organs and tissues that was viewable on autopsy. he wrote an extensive book showing the anatomy of diseases, e.g. affections of pericardium and aorta, (e.g. aneurysm), valve diseases, ulceration, rupture, dilation, and hypertrophy. he associated clinical observation with anatomy of disease. for example, pain on the left upper chest, numbness of the left arm, and difficulty breathing occurring together with exertion were associated with dilation of the aorta and hardening of arteries, which caused delay of blood in the aorta, in the heart, and in the lung vessels. bernoulli showed that the living human body constantly changes so that all its particles are renewed in a certain number of years. stephen hale described the first quantitative estimate of blood pressure and fundamental characteristics of blood circulation. in 1728, frenchman dr. pierre fauchard, the father of dentistry, recommended rubbing one's teeth and gums with a piece of sponge. since three out of four babies died shortly after birth, beds in hospitals for pregnant women were established starting in 1739. the next year physicians began to replace midwives. a hospital was established for abandoned foundling children in 1739 so they wouldn't die, as they usually did, in the care of parishes or workhouses or be exposed in the streets or left on door steps of the wealthy. it was besieged by women with babies in their arms. in 1762 a statute made the principles of the foundling hospital obligatory for all london parish children under six; they were to be sent to nurses outside london who were to be paid at least 2s. a week by the parish. in 1766, this was extended to all parishes, and nurses who cared for a child well for a year was given a reward of at least 10s. also, parish children were not allowed to be apprenticed for more than seven years or until age 21 and an apprentice fee of at least 4 pounds, 2s. was to be paid to the master or mistress by the parish. after 1740, there was a steady growth of population due to improved midwifery. william smellie taught scientific midwifery in london from 1741 and wrote a "treatise on midwifery" in 1752, which had a clear explanation of the mechanism of labor. at this time there were several maternity hospitals. forceps existed for difficult deliveries. in 1750, dr. cadogan wrote his book: "an essay on the nursing and management of children, which made a great improvement in the care of young children. for instance, it recommended loose clothing, no tight swaddling clothes, and a simple diet. swaddling clothes were used to retain a baby's evacuations but produced discomfort and serious skin conditions. a hospital was founded for venereal diseases in 1746, another as an asylum for the penitent and orphaned girls who might otherwise be inclined to prostitution, and yet another for prostitutes in 1758. coitus interruptus was widely used for birth control. there were also clandestine abortions and intentional neglect of newborns. melancholy was widespread. suicides were frequent and drugs were sold for this purpose. in 1725, the mentally ill were classified as curable or incurable. there were many private asylums. a lunatic who was furiously mad and dangerous was required to be safely locked up or chained in his place of settlement. there were frequent and dangerous abuses in madhouses, so in 1774, no one was to keep or confine more than one lunatic without a license granted by the royal college of physicians or else forfeit 500 pounds. a justice of the peace and a physician inspected all madhouses to observe conditions and care of patients there. if refused admittance, the license was forfeited. in 1712 was the last time a monarch touched a person to cure him of a malady such as scrofula. in 1743 surgery students began to dissect corpses with their own hands to better learn anatomy. in 1744 the company of surgeons was separated out of the company of barber-surgeons. the barbers were proscribed from performing surgery and had to have a separate corporation from the surgeons because of the ignorance and unskillfulness of barbers healing wounds, blows, and hurts e.g. by blood letting and drawing of teeth. there was a surgeon's hall, officers chosen by the surgeons, and bylaws. the surgeons were required to examine candidates for the position of surgeon in the king's army and navy. they were exempted from parish, ward, and leet offices, and juries. in 1752, a statute provided that the corpses of murderers were to be sent to the surgeon's hall to be anatomized, for the purpose of deterring murders. the penalty for rescuing the corpse of a murderer was to suffer death. the first dispensary for the poor was established in 1769 to give free medicine and treatment to the infant poor, and then to the infants of the industrious poor. the progress of science was seen to threaten the authority of the church. there was a general belief in god, but not much attention to jesus. feared to come were free thought, rationalism, and atheism. there was still a big gap between local parsons and bishops, who were educated, well-off, and related to the aristocracy. on the whole, preachers talked about morality and christian belief. they stressed good works and benevolence. but many protestant clergy were more concerned with their own livings than with their parishioners. they were indolent and did not set a good example of moral living. from 1715, freemasonry spread and swiftly provided a spiritual haven for those who believed in god and desired ritual and mysticism. about 1744, john wesley, the son of an anglican clergyman, became a religious leader for mining and industrial laborers, who were crowded into the slums of industrializing cities, and largely ignored by the church of england. he had been led to this by a profound religious experience. he led an evangelical revival with a promise of individual salvation. he lead an aesthetic life, eating bread, and sleeping on boards. the person to be saved from the horrors of eternal damnation in hell was to discipline himself to regular prayer, self-criticism, and hard work and to forsake worldly pleasures such as drinking, overeating, and even frivolous talk. this methodical regularity of living led to the movement being called methodist. wesley believed in witchcraft and magic. he opined that bodily diseases and insanity could be caused by devils and that some dreams are caused by occult powers of evil. the methodists engaged increasingly in philanthropic activities. they gave to the poor, and visited the sick and the imprisoned. wesley preached in the open air where all who wanted to attend could attend and also wear whatever clothes they had. large crowds of poor people gathered for these meetings. crowds of poor people were generally feared because of their mob potential. these methodist meetings were stormed as were quaker meetings, with shouts of "the church in danger". the methodists' homes were invaded and their belongings destroyed or taken or their persons beaten with tacit permission of authorities. some justices of the peace drafted preachers into the army or navy as vagabonds. eventually, however, the methodist revival imbued energy and piety into the lethargic clergy of the established church. a new moral enthusiasm and philanthropic energy grabbed the nation. prisons were reformed, penal laws made more wise, slave trade abolished, and popular education given momentum. in the established church, charity gained precedence over theology and comfort over self-examination and guilt. evangelist george whitfield preached calvinism and it split off from methodism. then calvinism went into full decline. presbyterianism collapsed into unitarianism and a general tendency towards deism developed. church sanctuary was abolished for those accused of civil offenses. there was much travel by scheduled coaches, which usually carried several passengers and were drawn by four horses. regular service of public vehicles to and from london went four miles an hour; it took two days to go from london to oxford. it was not unusual for a coach to bog down or overturn. sometimes it had to detour around an impassable stretch of road or borrow a couple of oxen from a nearby farm to get out of a quagmire. men and horses drowned in some of the potholes. robbery was endemic and some of the roads were so unsafe from highwaymen that bands of armed horsemen were hired to accompany the coaches. it was not unusual to come across gibbets for hanging at crossroads. in london inns at coach stops, there were casual workers who were associated with gangs of thieves specializing in passengers' goods. these workers would inform their associate thieves of specific goods that had been loaded onto certain coaches, which were then robbed selectively. traveling merchants preferred packhorses to carts because they could cross overland or through watercourses more easily. these pack horses traveled in regular caravans in single file. the leader had a bell around his neck to warn, from a distance, riders or carts coming in the opposite direction. carts traveled about two miles an hour. in 1711 the trustee system superseded administration by the justices of the peace of the turnpike system, including tolls and toll booths. the toll booths were frequently attacked by riotous mobs. so anyone pulling down or destroying turnpike gates at which tolls were to be paid went to prison or was put to hard labor in a house of correction for three months without bail. he was also whipped in the market place between 11:00 and 2:00. if he offended a second time, he was transported for seven years. later the penalty of prison up to three years was added as an alternative. the hundred had to pay the damages up to 20 pounds. the penalty for threatening the toll collector or forcibly passing through was 5 pounds for the first offense, and 10 pounds for the second offense with imprisonment for one year for those who couldn't pay. by 1750, about 60 miles could be made in a day. the turnpike trusts took over most of london's major highways during the 1700s. there was no travel on sundays until 1750. in 1745, shocked by the difficulty caused by bad roads in concentrating the royal army to stop the scottish invasion, the king began systematically to improve all the roads. there was much road and highway widening and repair, and also river bank and pier repair, going on all over the country. marsh lands were drained. harbors were deepened. there were numerous statutes trying to adjust the needs of travel with the condition of the roads. for instance, there had to be a pole between wheel horses or double shafts. carriages, wagons, or carts drawn by more horses, oxen, or animals, or with very heavy loads, or with wheels bound with iron tires were observed to cause more damage, so they were restricted or had to pay higher tolls. then broad and smooth iron tires were observed to not cause the amount of damage as did narrow or irregular iron tires and their use was encouraged. from 1741, weighing machines were kept at toll gates. by 1766, turnpike roads had to be at least 30 feet wide, and hedges and fences thereon had to be taken down by their owners. cartways to markets had to be at least 20 feet wide, and horseways 3 (later 8) feet wide. there were ditches, drains, and gutters to carry off water. names and abodes of owners were to be put on carriages, wagons, and carts or forfeit 2-5 pounds, except for carriages or coaches of a nobleman or gentleman for his private use or those drawn by only one horse or two oxen, or those with wide wheels and a light load. there were town name signs, direction posts, and milestones. in 1773, the surveyors and the commissioners of turnpikes were given authority to requisition local men, carts and draught animals for compulsory labor, or money instead, in maintaining the roads and making new ditches and drains. they could take any local sand, gravel, chalk, or stone from waste or common land or, if not needed by and satisfaction was made to the owner, from enclosed land. the surveyor was to be chosen locally for a year and could be given an allowance. new roads required the consent of the landowners and a negotiated price. a driver of a carriage, wagon, or cart on the public highway who by negligence or misbehavior caused any hurt or damage to a person or any other carriage or hindered free passage of any other carriage was to forfeit up to 20s. anyone leaving an empty cart or other obstruction on a public highway was to forfeit up to 20s. any cart, wagon, or carriage driven without a person on foot or on horseback leading it had a forfeiture up to 20s. any driver of an empty cart, wagon, or carriage who refused or neglected to make way for any coach or loaded cart, wagon, or carriage was to forfeit up to 20. any offender could be apprehended without warrant by anyone who saw his offense, and who was then to deliver him to a constable or other peace officer. by 1719, the mail service was well-regulated. letter rates within 80 miles of london were 3d. per piece of paper, then 12d. per ounce. within 60 miles of new york city in america there were 4d. per piece of paper, then 1s.4d. per ounce. letters were still carried by post horses. from london to new york, they were 1s. per piece of paper for the first three pieces, then 4s. per ounce. in 1765, this rate was extended to all colonial ports. in 1754, canals began to be constructed linking the main rivers. the barges were hauled by horses or men from the land near the river's edge. now goods of many inland towns cheapened and reached a national instead of just a local market. in 1761 an almost illiterate man called james brindley cut the first real canal at worsley for the duke of bridgewater, who owned the coal deposits there. he kept the line of the canal at one level to avoid having to make locks. it crossed one river as a forty foot high aqueduct. he refused to use the beds of small rivers, whose sluggish flow gave no adequate security against silting. coal at the destination point of manchester fell to half its former price. after wedgwood headed a campaign to persuade parliament to construct a certain canal, he bought adjacent land on which he built his great factory. in 1713, the maximum interest rate that could be charged was reduced to 5% for the advancement of trade and improvement of lands because that rate was the norm in foreign lands. thus the maximum interest rate fell from 10 to 8 to 6 and then to 5%. when issac newton was master of the mint, he noted that too restricted a currency caused a high interest rate to prevail, which was bad for commerce and the plans to set the poor to work, but that too large a quantity of money in circulation caused interest rates to fall, which encouraged luxury imports and the export of bullion. the bank of england provided a safer deposit and lower interest than goldsmiths or scriveners. it also issued notes for 10 and 15 (since 1759), and 20 pounds. outside retail trade and wages payments, business was conducted on a credit basis with a paper promise to pay at some future date. check use was still formal and rare. tradesmen typically authorized their apprentices to "write off or draw" from their accounts, bringing their bank books. depositors authorized other people such as certain servants, relatives, cashiers, or company secretaries to make use of their accounts. after 1721, the bank dividend was about 6% a year. promissory notes were assignable and endorsable and the holder could recover against the signer or any endorser as was the case with bills of exchange. in 1775, no more promissory or other notes, bills of exchange, draughts, or undertakings in writing and being negotiable or transferable could be made for under 20s., because it was hard for the poorer sort of manufacturer, artificer, laborer and others to use them without being subject to great extortion and abuse. cash was to be used instead. by 1711, government finances had become so chaotic that the chancellor of the exchequer sought to re-establish public credit by means of a chartered commercial company, the shares of which were offered in substitution for government stock. this south sea company was established in 1711 with a monopoly to trade in south america. the prospects of huge profits sent the share prices soaring. there was also an increase in the money supply. these factors led to a speculation bubble in 1720 in this stock. also, many stock-jobbers promoted companies of every description, such as one to extract gold from seawater. there was an insurance boom with about seventy insurance companies in existence, many virtually gambling in life contingencies. there was speculation in insurance for all types of occurrences, such as housebreaking, highway robbery, death by gin-drinking, and horses becoming disabled. the total capital invested in all these enterprises rose to over five times the cash resources of all europe. when the bubble burst, 100 pound south sea stock had gone up to 1050 pounds and back down again to 120. since the government had in effect bought this stock at a low price and paid off its debt with this stock at a high price, this bubble relieved the government of much of its massive debt. it also redistributed wealth. after the bubble burst, investors took refuge in investing in 3-4% government fixed-interest securities. a result of this bubble burst was the chartering of two corporations for marine insurance and prohibition of such by any partnership or firm. private persons could continue to write policies, and they chose lloyd's coffeehouse as their headquarters; it came to dominate the world of marine insurance after the two chartered companies came to concentrate on fire and life insurance. lloyd's list became the foundation for a new newspaper. there were specialty boxes at lloyd's such as on america or the baltic. many ships were reported captured by enemies or pirates, but underwriting insurance was a lucrative business for many. in 1717 the gold guinea was assigned a value of 21s. in 1774, the gold standard was introduced. in 1774, clipped and deficient gold coin was called in to be exchanged for new coin. local taxes were collected for the church, the poor, county courts of justice, borough administration, and highways. national taxes included the income, customs, and excise taxes. when the government tried to levy excise taxes on wine, tobacco, and then on cider, there was a public protest with mobs demonstrating against the power given to excise inspectors to search in people's homes. these excise taxes were no longer levied. duties were placed on items for encouraging industries within the country and to pay the expenses of government. there were more and higher duties to pay for war. at various times there were duties on hides, skins, seal skins, gilt and silver wire, malt, mum [strong beer made from malted wheat], cider, perry, spices, tea, coffee, cocoa nuts, chocolate, cocoa paste, snuff, chinaware, drugs, calicoes, herrings, apples, oysters, raw italian and chinese silk, gum arabic, gum senega, tallow, hogs-lard, grease, beaver skins and wool, imported brandy, raisins, coals and coal dust, coaches for one's own use or for hire, except licensed hackney coaches; silver plate owned by persons, corporations, and bodies politic; leases, bonds, and other deeds; licenses for retailing wine, beer, and ale; 5% of salaries, fees, and perquisites from office and employments including royal pensions and gratuities over 100 pounds. when the price of wheat was high, as in 1765, when it was 6s. per bushel, wheat products could not be exported. at other times, they could not be imported. duties on imported wheat, barley, rye, oats, beans, rice, indian corn were also dropped. the prohibition of importing salted beef, pork, bacon, and butter was dropped. in 1770, no live cattle, pigs, mutton, pork, beef, either fresh or salted could be exported or forfeit 50 pounds for every such animal or 5s. per pound of such meat. in 1773, peas, beans, bacon, hams, and cheese could be imported duty free, and in 1775 labrador codfish. in 1775, raw goat skins could be imported duty-free to improve the domestic manufacture of red, green, and blue leather. in 1773, there were given costs above which various commodities could not be exported: wheat at 44s. per quarter, rye, peas, or beans at 28s., barley and beer at 22s., oats at 14s. or else forfeit the goods, 20s. per bushel and the ship or boat in which laden. (there are 8 bushes in a quarter.) a window tax replaced the hearth tax. these duties were 2s. on dwelling houses, increased by 6d. per window for houses with 10-14 windows, and increased by 9d. per window for houses with 15-19 windows, and increased by 1s. per window for houses with 20 or more windows, per year to be paid by the occupant. these were increased three more times, until the dwelling house duty was 3s. and the duty for 25 or more windows was 2s. another duty for war was that on imported starch, certain imported clothes, cards, dice, soap, vellum, parchment, and paper made in the realm (4d.-1s.6d. per ream depending on quality) or imported (1-16s. per ream). for pamphlets and newspapers made in the realm there was a duty of 2d. per sheet and 12d. for every advertisement. when the duty was paid, the paper was stamped. the penalty for nonpayment was 10 pounds for sellers and 5 pounds for those writing or printing on the paper. later, there was a penalty of imprisonment in a house of correction up to three months for sellers or hawkers of pamphlets or newspapers, and the apprehender received a reward of 20s. a parson marrying a couple without publishing banns or license could forfeit 100 pounds. not paying duties was punishable by various forfeitures of money. officers for duties could search warehouses on suspicion of concealment of coffee, tea, chocolate, or cocoa beans with an intent to avoid duties after making an oath before a duty commissioner or justice of the peace setting forth the grounds of such suspicion. a special warrant could be issued authorizing the officer to seize such goods. wars were funded not only by some duties, but by lotteries and short-term funding purchased at 5% yearly interest from the bank of england and by long-term funding by the sale of annuities. county militias could be raised and called out to march together in order to be better prepared to suppress insurrections or invasions. their horsemen were to be provided with broad sword, a case of pistols with 12 inch barrels, a carabine with belt and bucket, a saddle, and a bit and bridle. each foot soldier was to be provided with a bayonet, a cartouch-box, and a sword. in the militia act of 1757, there were quotas for each parish, to be chosen by lot from lists of men 18-50 years old. after militia service for three years, one could not be called again until by rotation, and, if married, he was allowed to practice any trade in which he was able in any town or place. while he was in the militia, his parish had to pay an allowance to his family, if distressed, the usual price of an agricultural laborer, according to the number and ages of the children. quakers could provide a substitute or pay money to defray expenses of a substitute for three years. exempt were peers, commissioned officers in royal army or royal castle, other military personnel, members of either university, clergymen, teachers of any separate congregation, constables and peace officers, and watermen of the thames river. this militia act was due to an invasion scare in 1756 because great britain then had no allies on the continent. the old strategy of maintaining a small army of 17,000 men and relying on volunteers had really depended on england's allies to tie down france's land forces. the militia act of 1757 was designed to reassure squires they would not be used as adjuncts to the army. only those with much property could be officers. enlistees could still carry on their trades and jobs. costs were to be from general taxation rather than by locality. but it was almost impossible to get officers and there were many riots when parish authorities tried to draw up lists of those liable to serve. in 1759 the navy prevented french invasion. able-bodied men without a calling, employment, or visible means of maintenance or livelihood could be searched for and conscripted into the army. volunteers who enlisted were paid 40s. and were not taken out of her majesty's service by any process other than for some criminal matter. king george ii was the last king to lead his troops into battle. later, parishes were given 20s. for every soldier they summoned. also, persons who had a vote for member of parliament were exempted. whipping was the usual punishment for offenses. a soldier who deserted or joined in any mutiny or sedition in the royal army within the realm was to suffer death or any other punishment determined by court martial. in 1760, a soldier (later, or a marine) who slept at his post, left his post before being relieved, communicated with any rebel or enemy, struck or disobeyed any superior officer could suffer death, including those soldiers in america. during war, chief officers of towns quartered and billeted royal army officers and soldiers in inns, livery stables, alehouses, and victualing houses for 4d. a day, but not in any private house without consent of the owner. from 1714 to 1739, the army regiments were split up and scattered among the ale-houses of small towns for maintenance; this was to disperse the soldiers. it was easier to count them, thereby keeping a check on their number, which might be exaggerated if they were in large groups in barracks. the towns protested having to maintain soldiers and town magistrates imposed severe penalties for small offenses by soldiers. their drunkenness and violence were not tolerated as they were for ordinary people. their officers not being with them, the soldiers retaliated with troublesomeness. as of 1763 english troops could be quartered in unoccupied houses or barns and supplied with necessities such as bedding, firewood, candles, vinegar, salt, cooking utensils, and beer or cider. the royal hospital gave pensions to maimed and worn out soldiers treated there. sailors had more status than soldiers because they had regular work as seamen in times of peace and they did not remind the people of the idea of a standing army, which they had hated especially since cromwell. justices of the peace, mayors, and other officers could bind boys as apprentices to sea service if they were at least ten and their parents were chargeable to the parish or begged for alms. this indenture to the masters or owners of ships lasted until the boy reached 21. the boy's parish paid 50s. for clothing and bedding for such sea service. no such apprentice could be impressed into the navy until at least 18 years of age. master and owners of ships that carried 30-50 tuns had to take one such apprentice and one more boy for the next 50 tuns, and one more boy for every 100 tuns over 100 tuns, or else forfeit 10 pounds to the boy's parish. boys voluntarily binding themselves to such sea service were exempt from impressment for the next three years. this was to increase the number of able and experience mariners and seamen for the navy and for the trade and commerce of the nation. no masters or commanders of merchant ships were to proceed on a voyage beyond the seas without first agreeing in writing on wages with the seamen, except for apprentices. such agreement had to be signed by the seamen. offenders were to forfeit 5 pounds per seaman, which sum went to the use of greenwich hospital. any seaman leaving the ship before being discharged in writing was to forfeit one month's pay because too many left the ship before it was unladen. there were some ships of 2000 tons. the steering wheel had been introduced because a sudden heavy sea could wrest a tiller from the hands of a helmsman. triangular head-sails with jib boom and stay-sails on stays between masts were in use so that ships could sail closer into the wind. the length of ships was still determined by the same length of trees that could be grown. sailing ships were still vulnerable to a lee shore. latitude was easy to determine using the reflecting octant invented by john hadley in 1731, and a sextant invented in 1757, with mirrors and a small telescope to measure the angle between a celestial body such as the sun or north star and the horizon. but longitude could not be determined with any degree of accuracy. one method relied on accurate predictions of the future position of the moon as observed from a fixed reference point, such as greenwich. by precisely observing the local time of the moon's occultation of a known star at a particular place, and looking up in a table the predicted time of the event at greenwich, one could approximate the time difference of the place from greenwich. there were so many shipwrecks on this account that the government offered a reward to anyone who found a way to measure longitude accurately. in 1763 carpenter and clockmaker john harrison made the chronometer to do this with an accuracy of 2 1/2 seconds per month, and received 5,000 pounds. he was promised 10,000 pounds to explain the principle of his timekeeper and build three more. the chronometer kept time with extreme accuracy and was mounted to remove the effect of the ship's motion. to find a ship's position, a navigator noted the time and measured the positions of certain stars. he compared these positions with tables that showed the stars' positions at greenwich mean time, and then calculated the ship's position. officer positions were no longer bought, but were subject to examination for a minimum of knowledge, especially in navigation. in 1729 the naval academy was established. boys entered at age 13 to 16 and spent two or three years there. only about 15% of the crew of navy ships were volunteers. many were gaolbirds, having chosen the navy over more gaol time for debt. press gangs seized men in the port towns and from ships coming into harbor. from 10% to 20% of the crew were foreigners, many of these pressed men. about 1756, the marine society was founded for training and placing poor boys in work in naval and merchant ships. this not only supplied men and boys for the navy, but saved boys from a life of vagrancy and crime. these boys usually became reliable and obedient sailors. the life of a sailor was a hard one, requiring much strength. sailors did not know how to swim, so falling overboard usually meant death. flogging was the usual punishment in the navy, even for small offenses. the amount of flogging due for each offense rose over time. if flogging were fatal, there would be an inquiry and occasionally punishment. a sailor's meals were usually hard bread invested with weevils and maggots, dried or salted meat or fish, and small quantities of oatmeal, butter, and cheese. many sailors had scurvy or other deficiency diseases. experiments with lime and lemon juice as remedies for scurvy were made around 1764, but were not used in the navy until about 1800. many more sailors died from these diseases than from battle. rum and water was a daily ration introduced in 1745. the ordinary sailor was paid about one pound a month, a rate established in 1650s which became outdated. this was not in cash, but in a ticket which entitled him to payment in full if he presented it at the pay office in london, but was subject to swinging deductions if he tried to cash it in another port. prize money from conquered ships was substantial. to encourage seamen to enter the navy, parliament provided that the prizes be divided among flag officers, commanders, other officers, seamen, marines, and soldiers on board every ship of war, including private ships commissioned by the admiral, as directed by the king, or as agreed with the owner of a private ship. it included an enemy's ships, and goods and arms on the ships or in fortresses on the land. there was also bounty money for enemy ships taken or destroyed. for retaking or salvaging english goods taken by the enemy, 1/8th their value was paid. privateers colluding with others to fraudulently take their merchant ships forfeited their ships, with 1/3rd going to the person who made the discovery and prosecuted. later, any able seaman volunteering for the navy was to receive 5 pounds bounty. any seaman volunteering for the navy was to receive a bounty of 3 pounds. if a navy seaman was killed or drowned, his widow was to receive a year's pay as bounty. no seaman in a merchant ship was to receive more than 35s. per month because of war at that time. still later, anyone who ran goods or avoided customs was excused and indemnified if he enlisted in the navy as a common sailor for three years. those under 18 or over 55 were made exempt from impressment into the king's service. the time of service was limited to five years if the serviceman so demanded. worn out and decrepit seamen no longer being treated at the royal hospital for seamen at greenwich received a pension as determined by the hospital. in war, the navy favored blockading tactics over attack by fireships, which grew obsolete. in peace, when not used in convoys to remote lands, many ships of war were used as cruisers to guard the coast, to trade, and to accompany merchant ships going out and returning home. about 1755, marine forces of the navy were raised and quartered on shore. no war ship could carry goods except gold, silver, and jewels and except the goods of a ship in danger of shipwreck or already shipwrecked. the king was authorized to prohibit the export of gunpowder, saltpeter, ammunition, and arms. when a ship had been forced on shore or stranded on the coast, it had been the practice for people to plunder it and to demand high payment for salvaging its goods. so a statute required that salvage only be done by sheriff, mayors, and other officials. a person who defaced the marks on goods or hindered the saving of the ship had to pay double satisfaction to the person aggrieved and spend 12 months at hard labor in a house of correction. if a person unduly carried off goods, he forfeited treble damages. if he made a hole in the ship or stole the pump from the ship, he was guilty of felony without benefit of clergy. the owner of the island of skerries was allowed to erect a lighthouse and charge passing ships other than navy ships 1d. per tun. only pilots examined and admitted into the society of pilots and, if no such pilot was readily available, a ship's own owner, master, or mate could pilot ships up the thames river, or else forfeit 10 pounds for the first offense, 20 pounds for the second, and 40 pounds thereafter. any pilot losing a ship could no longer be a pilot. there had to be at least 120 qualified pilots. the prices of piloting were 3 pounds 10s. for ships drawing 7 feet of water, and 10s. more for each additional foot drawn up to 8 pounds 10s. for ships drawing 17 feet of water. to preserve navigation, ships were not to throw any ballast, filth, rubbish, gravel, earth, stone, or filth into rivers or ports where the tide or water flowed or ran or else forfeit 50s.5 pounds. ships on the thames river could take as ballast to stabilize a ship without cargo: dung, compost, earth, or soil from laystalls in london. there was a toll on ships entering the port of london to pay for repairs to its walls. many persons insuring ships for large premiums became bankrupt, thus ruining or impoverishing many merchants and traders. so the king was authorized to grant charters to two distinct corporations for the insurance of ships, goods, and merchandise or going to sea or for lending money upon bottomry [borrowing money and and pledging the ship as security]. each corporation had to pay 300,000 pounds to the exchequer and to have sufficient ready money to pay for losses insured by them. they were to raise capital stock and could make calls of money from their members in proportion to their stocks for any further money required. any owner, master, or mariner who cast away, burned, or otherwise destroyed a ship to the prejudice of underwriters of policies of insurance or of any merchants whose goods have been loaded on the ship was to suffer death. the owners of ships were not liable for losses by reason of theft without their knowledge by the master or mariners of goods beyond the value of the ship. this was to prevent the discouragement of owning ships. the insurance of merchant ships must give salvage rights [rights to take what may be left of the ships insured after paying the insurance on them] to the insurer. a lender on bottomry had benefit of salvage. no insurance could be for a greater amount than the value of one's interest in the ship or in the goods on board. no waterman carrying passengers or goods for hire e.g. by wherryboat, tiltboat, or rowbarge, on the thames river could take an apprentice unless he was a housekeeper or had some known place of abode where he could keep such apprentice or else forfeit ten pounds, and if he couldn't pay, do hard labor at the house of correction for 14-30 days. also he could not keep the apprentice bound to him. no apprentice could be entrusted with a vessel until he was 16 if a waterman's son and 17 if was he the son of a landman, and he had at least two years' experience. none but freemen, i.e. one having served an apprenticeship of seven years, could row or work any vessel for hire or be subject to the same punishment. this was to avoid the mischiefs which happen by entrusting apprentices too weak, unable, and unskillful in the work, with the care of goods and lives of passengers. later amendment required that apprentices be age 14 to 20 and that there be no more than 40 passengers, with the penalty of transportation if there were over 40 and one drowned. no boat on the thames river could be used for selling liquors, tobacco, fruit, or gingerbread to seamen and laborers because such had led to theft of ropes, cables, goods, and stores from the ships. excepted were boats registered at the guilds of trinity and of st. clement, but they had to show their owner's name and could only operate in daylight hours. the penalty was forfeiture of the boat. all ships coming from places infected with the plague had to be quarantined and any person leaving a quarantined ship had to return and later forfeit 20 pounds, of which 1/3 could go to the informer, the rest to the poor. this was later raised to 200 pounds and six months in prison, and if the person escaped, he was to suffer death. also later, a master of a ship coming from infected places or having infected people on board was guilty of felony and forfeited 200 pounds. if he did not take his vessel to the quarantine area on notice, he forfeited a further 200 pounds (later 500 pounds) and the ship, which could then be burned. the king was authorized to prohibit commerce for one year with any country infected by the plague and to forbid any persons of the realm from going to an infected place. by 1714, there was a clear distinction between a king's private income and the crown's public revenue. from 1714, the king's treasurer as a matter of routine submitted annual budgets to parliament. he was usually also the leader of the house of commons and the chancellor of the exchequer. proclamations by the crown were more restricted to colonial and foreign affairs, to executive orders, and to instructions to officials. the high offices included the chancellor, treasurer, keeper, president of the council, privy seal, and two secretaries of state, who were in charge of all foreign and domestic matters other than taxation, one for the north and one for the south. with thomas more, the chancellor had become more of a judge and less of a statesman. other offices were: paymaster general, secretary of war, and treasurer of the navy. starting with the monarch, government positions were given by patronage to friends and relatives, or if none, to the highest bidder. these offices were usually milked for fees and employed deputies, clerks, and scribes who worked for long hours at very modest wages. most people believed that the offices of power and influence in the realm belonged to the nobility and gentry as indubitably as the throne belonged to the king. assaulting, wounding, striking, or trying to kill a member of the privy council engaged in his duties was punishable by death without benefit of clergy. civil and military commissions, patents, grants of any office or employment, including justice of assize, justice of the peace, court writs, court proceedings continued in force for six months after a king's death, unless superceded in the meantime. the king's ministers were those members of his privy council who carried out the work of government. by distributing patronage, the ministers acquired the influence to become leading members of the house of commons or the house of lords. they made policy, secured the king's consent, and then put through the necessary legislation. the king was to act only through his ministers and all public business was to be formally done in privy council with all its decisions signed by its members. the king gradually lost power. the last royal veto of a parliamentary bill was in 1708. by 1714, the privy council ceased making decisions of policy. instead a cabinet not identified with any particular party was chosen by the queen, who presided over their meetings, which were held every sunday. it dealt with parliament. in 1720, the number of peers in the house of lords was fixed, so that the crown could create no more. about 1720, robert walpole, son of a country squire, who came to be first minister of the crown and the leader of the whigs, organized the cabinet so that it was of one view. he led it for twenty years and thus became the first prime minister. a prime minister was needed because the king spoke no english. walpole was brilliant at finance and lessened taxation. he restored trust in the government after the south sea bubble scandal. he was successful in preserving the peace with other nations and providing stability in england that led to prosperity. the whigs opposed a standing army and over-reaching influence of the crown. they espoused the liberty of individual subjects. their slogan was "liberty and property". they generally favored foreign wars. members of the parliament felt responsible for the good of the whole country instead of accounting to their electors, but selfinterest also played a part. leading commercial magnates of the realm sought to be members of parliament or governors of the bank of england so they could take up government loans at advantageous rates, snap up contracts to supply government departments at exorbitant prices, and play an important part in deciding what duties should be charged on what goods. about 5% of the population could vote. voting was open, rather than by secret ballot. seats in parliament could normally be bought either by coming to an arrangement with some landowner who had the right to nominate to a closed seat or by buying enough votes in constituencies where the electorate was larger and the contest more open. factory owners and leading landowners sat together on committees drawing up plans for public works such as canal building, obtained the necessary permits from public authorities and organized the whole enterprise. in 1714, parliament was allowed to last for seven years unless sooner dissolved by the king because of the expense and tumult of elections, which frequently occasioned riots, and sometimes battles in which men were killed and prisoners taken on both sides. politics had become a career. members of parliament could not be arrested while parliament was in session. as of 1710, electees to the commons had to have 600 pounds annual income for knights or 300 pounds annually for burgesses. this did not include the eldest son or heir apparent of any peer or lord of parliament or any person with the above qualifications. the universities were exempted. as of 1729, a person electing a member of the commons had to swear or affirm that he had not received any money, office, employment, or reward or promise of such for his vote. if he swore falsely, it was perjury and he was to forfeit 500 pounds and his right to vote. later, voters for member of parliament had to have residence for a year. still later, voters were required to have been freemen of the city or town for one year or else forfeit 100 pounds, except if entitled to freedom by birth, marriage, or servitude according to the custom of such city or town. voters were still required to have a freehold of land of 40s. a year income, but holders of estates by copy of court roll were specifically precluded from voting or else forfeit 50 pounds. in 1724, since unauthorized persons had intruded into assemblies of citizens of london and presumed to vote therein, the presiding officer -appointed clerks to take the poll and oath required for elections for parliament, mayor, sheriffs, chamberlains, bridgemasters, and auditors of chamberlains. the oath was that one was a freeman of london, a liveryman of a certain named company, had been so for 12 months, and had named his place of abode. the oath for alderman or common council elections was that the voter was a freeman of london and a householder in a named ward who had paid scot of at least a total of 30s. and bore lot. a list of the voters and of persons disallowed was given to candidates by the presiding officer. soldiers could not be quartered within 20 miles of a place of election so that the election was kept free. voters in public corporations must have held their stock for six months before voting them to discourage splitting stock and making temporary conveyances thereof to give certain people more of a vote, e.g. in declaring dividends and choosing directors. ambassadors were made immune from arrest, prosecution and imprisonment to preserve their rights and privileges and protection by the queen and the law of nations. the supporters of the bill of rights society was founded and paid agents to give speeches throughout the country and used the press for its goals. james burgh demanded universal suffrage in his 1773 book: "political disquisitions". in 1707 there was union with scotland, in which their parliaments were combined into one. the country was known as great britain. the last scottish rebellion resulted in attainder of its leaders for levying war against the king. in 1746, they were given the chance to surrender by a certain date, and receive a pardon on condition of transportation. in 1747, anyone impeached by the commons of high treason whereby there could be corruption of the blood or for misprison of such treason could make his defense by up to two counsel learned in the law, who were assigned for that purpose on the application of the person impeached. in 1748, counsel could interrogate witnesses in such cases where testimony of witnesses were not reduced to writing. there was a steady flow of emigrants to the american colonies, including transported convicts and indentured servants. delaware became a colony in 1703. in 1729, the king bought carolina from its seven proprietors for 2,500 pounds apiece. person having estates, rights, titles, or interest there, except officers, were allowed by parliament to sue the king with the court establishing the value to be paid, but no more than at a rate of 2,500 pounds per 1/8 of the property. georgia was chartered in 1733 on request of james oglethorpe, who became its first governor, as a refuge for debtors and the poor and needy. it established the episcopal church by law. in 1730 carolina and 1735 georgia were allowed to sell rice directly to certain lands instead of to england only. later, sugar was allowed to be carried directly from america to european ports in english ships without first touching some english port. foreigners who had lived in the american colonies for seven years, and later foreigners who served two years in the royal army in america as soldiers or as engineers, were allowed to become citizens of great britain on taking oaths of loyalty and protestantism. this included quakers and jews. the jews could omit the phrase "upon the true faith of a christian." in 1756, indentured servants in america were allowed to volunteer as soldiers in the british army serving in america. if his proprietor objected, the servant was to be restored to him or reasonable compensation given in proportion to the original purchase price of his service and the time of his service remaining. there was much competition among countries for colonies. quebec and then montreal in 1760 in canada were captured from the french. about 1768 james cook discovered new zealand and australia; his maps greatly helped future voyages. the english east india company took over india as its mogul empire broke up. manufacturing in the american colonies that would compete with british industry was suppressed by great britain. there were increasing duties on goods imported into the colonies and restrictions on exports. in 1763, parliament imposed duties on foreign imports going to america via britain: to wit, sugar, indigo, coffee, certain wines, wrought silks, calicoes, and cambrick linen. foreign vessels at anchor or hovering on colonial coasts and not departing within 48 hours were made liable to be forfeited with their goods. uncustomed goods into or prohibited goods into or out of the colonies seized by customs officials on the ship or on land and any boats and cattle used to transport them occasioned a forfeiture of treble value, of which 1/3 went to the king, 1/3 went to the colonial governor, and 1/3 went to the suer. any officer making a collusive seizure or other fraud was to forfeit 500 pounds and his office. in 1765, there was imposed a duty on papers in the colonies to defray expenses of their defense by the british military. the duty on every skin, piece of vellum [calf skin] or parchment, and sheet of paper used in any law court was 3d.2 pounds. there were also duties on counselor or solicitor appointments of 10 pounds per sheet. duties extended to licenses for retailing spirituous liquors and wines, bonds for payment of money, warrants for surveying or setting out of any lands, grants and deeds of land, appointments to certain civil public offices, indentures, leases, conveyances, bills of sale, grants and certificates under public seal, insurance policies, mortgages, passports, pamphlets, newspapers (about 1s. per sheet), advertisements in papers (2s. each), cards, and dice. the papers taxed were to carry a stamp showing that the duties on them had been paid. parliament thought the tax to be fair because it fell on the colonies in proportion to their wealth. but the colonists saw this tax as improper because it was a departure from the nature of past duties in that it was an "internal tax". all of the original thirteen american colonies had adopted magna carta principles directly or indirectly into their law. the stamp duties seemed to the colonists to violate these principles of liberty. patrick henry asserted that only virginia could impose taxes in virginia. schoolmaster and lawyer john adams in massachusetts asserted that no freeman should be subject to any tax to which he had not assented. in theory, colonists had the same rights as englishmen per their charters, but in fact, they were not represented in parliament and englishmen in parliament made the laws which affected the colonists. they could not be members of the house of lords because they did not have property in england. there were demonstrations and intimidation of stamp agents by the sons of liberty. merchants agreed to buy no more goods from england. the stamp duty was repealed the same year it had been enacted because it had been "attended with many inconveniences and may be productive of consequences greatly detrimental to the commercial interests of these kingdoms". to counter the wide-scale running of goods to avoid the customs tax, the customs office was reorganized in 1766 to have commissions resident in the colonies and courts of admiralty established there to expedite cases of smuggling. this angered the colonists, especially boston. boston smuggling had become a common and respectable business. it was the port of entry for molasses from the west indies from which new england rum was made and exported. the entire molasses trade that was essential to the new england economy had been built upon massive customs evasions; royal customs officials had participated in this by taking only token customs for the sake of appearance in london and thereby had become rich. in 1766 parliament imposed a duty of 3d. per pound weight on tea and duties on reams of paper, glass, and lead into the colonies. these import duties were presented as external rather than internal taxes to counter the rationale the colonies gave against the stamp tax. but these items were of common use and their duties raised the cost of living. the king's customs officials were authorized to enter any house, warehouse, shop, or cellar to search for and seize prohibited or uncustomed goods by a general writ of assistance. these writs of assistance had been authorized before and had angered bostonians because they had been issued without probable cause. in paxton's case of 1761, the massachusetts superior court had declared legal the issuance of general writs of assistance to customs officers to search any house for specific goods for which customs had not been paid. the authority for this was based on the parliamentary statutes of 1660 and 1662 authorizing warrants to be given to any person to enter, with the assistance of a public official any house where contraband goods were suspected to be concealed, to search for and seize those goods, using force if necessary. they were called "writs of assistance" because the bearer could command the assistance of a local public official in making entry and seizure. a "general" writ of assistance differed from a "special" writ of assistance in that the latter was issued on a one-time basis. the general writ of assistance in boston was good for six months after the death of the issuing sovereign. authority relied on for such writs was a 1696 statute giving customs officers in the colonies the same powers as those in england, a 1699 act by the massachusetts provincial legislature giving the superior court of massachusetts the same such power as that of the exchequer, and the massachusetts' governor's direction about 1757 to the massachusetts superior court of judicature to perform the function of issuing such warrants. the massachusetts court issued them in the nature of the writs of assistance issued from the exchequer court in england, but had issued them routinely instead of requiring the showing of probable cause based on sworn information that the exchequer court required. few judges in the other american colonies granted the writ. seditious libel trials in england and the colonies were followed closely and their defendants broadly supported. john wilkes, a member of the house of commons, published a criticism of a new minister in 1763. he called king george's speech on a treaty "the most abandoned instance of ministerial effrontery ever attempted to be imposed on mankind". after being found guilty of seditious libel, he again ran for the house of commons, and was repeatedly elected and expelled. he was subsequently elected alderman, sheriff, and mayor of london. in 1770, alexander macdougall was voted guilty of seditious libel by the new york colonial assembly for authoring a handbill which denounced a collusive agreement by which the assembly voted to furnish supplies for the british troops in new york in exchange for the royal governor's signature to a paper-money bill. when he was arrested, the sons of liberty rallied to his support, demanding freedom of the press. benjamin franklin's brother had been imprisoned for a month by the massachusetts assembly for printing in his newspaper criticisms of the assembly. he was forbidden to print the paper. benjamin supported him by publishing extracts from other papers, such as "without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty without freedom of speech... whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech; a thing terrible to public traitors." by statute of 1766, the new york house of representatives was prohibited from meeting or voting until they provisioned the king's troops as required by law. in 1769, harvard college seated its students in class in alphabetical order instead of by social rank according to birth. by 1769, the colonies' boycott of british goods in protest of the new duties cause these imports to decline so much that british merchants protested. so the duties were dropped, except for that on tea, which was retained as a matter of principle to assert the power of the crown to tax the colonies. then in 1773 the east india company was allowed to sell tea directly to the colonies to help it avoid bankruptcy. the effect of this was to lower the cost of tea in the colonies by avoiding the english middleman, and the american middleman, but also to give the east india company a monopoly. the colonies felt threatened by this power of britain to give monopolies to traders. when the tea ships arrived in boston in late 1773, bostonians held a town meeting and decided not to let the tea be landed. they threw this cargo of tea, worth about 18,000 pounds, overboard. this boston tea party was a direct challenge to british authority. in response, parliament closed the port of boston until compensation was made to the east india company. by statute of 1774, no one was to enter or exit the port of boston or else forfeit goods, arms, stores, and boats that carried goods to ships. every involved wharf keeper was to forfeit treble the value of the goods and any boats, horses, cattle, or carriages used. ships hovering nearby were to depart within six hours of an order by a navy ship or customs officer or be forfeited with all goods aboard, except for ships carrying fuel or victuals brought coastwise for necessary use and sustenance of inhabitants after search by customs officers, and with a customs official and armed men for his defense on board. this statute was passed because of dangerous commotions and insurrections in boston to the subversion of the king's government and destruction of the public peace in which valuable cargoes of tea were destroyed. later, the governor was given the right to send colonists or magistrates charged with murder or other capital offenses, such as might be alleged to occur in the suppression of riots or enforcement of the revenue laws, to england or another colony for trial when he opined that an impartial trial could not be had in massachusetts bay. a later statute that year altered the charter of massachusetts bay province so that the choice of its council was transferred from the people to the king to serve at his pleasure, and the appointment and removal of judges and appointment of sheriffs was transferred to the governor to be made without the consent of the council. this was due to the open resistance to the execution of the laws in boston. further, no meeting of freeholders or inhabitants of townships was to be held without consent of the governor after expressing the special business of such meeting because there had been too many meetings that had passed dangerous and unwarranted resolutions. also, jurors were to be selected by sheriffs rather than elected by freeholders and inhabitants. the commander of the british troops in north america was made governor of massachuseetts. king george thought that the colonists must be reduced to absolute obedience, even if ruthless force was necessary. the people of massachusetts were incensed. they were all familiar with the rights of magna carta since mandatory education taught them all to read and write. mandatory education every township of fifty households had to appoint one person to teach all children to read and write. every one hundred families had to set up a grammar school.) the example in massachusetts showed other colonies what england was prepared to do to them. also disliked was the policy of restricting settlement west of the allegheny mountains; the take over of indian affairs by royal appointees; the maintenance of a standing army of about 6,000 men which was to be quartered, supplied, and transported by the colonists; and expanded restrictions on colonial paper currencies. the virginia house of burgesses set aside the effective date of the port bill as a day of prayer and fasting, and for this was dissolved by its governor. whereupon its members called a convention of delegates from the colonies to consider the "united interests of america". this congress met and decided to actively resist british policy. as opposition to british rule spread in the colonies, a statute was passed stating that because of the combinations and disorders in massachusetts, new hampshire, and connecticut, and rhode island to the destruction of commerce and violation of laws, these inhabitants should not enjoy the same privileges and benefits of trade as obedient subjects and that therefore no goods or wares were to be brought from there to any other colony, and exports to and imports from great britain were restricted, on pain of forfeiting the goods and the ship on which they were laden. there vessels were restricted from fishing off newfoundland. these conditions were to be in force until the governors were convinced that peace and obedience to laws was restored. later in 1775, these trade restrictions were extended to new jersey, pennsylvania, maryland, virginia, and south carolina. in 1776, since all the thirteen colonies had assembled an armed force and attacked british forces, these trade restrictions were extended to delaware, new york, georgia, and north carolina and expanded to prohibit all trade during the present rebellion to prevent assistance to them. war had started; the new rifle was used instead of the musket. by statute of 1775, anyone harboring of army or marine deserters in the colonies forfeited 5 pounds anyone persuading a soldier or marine to desert drew a forfeiture of 40 pounds or else up to six months in prison without bail and one hour in the pillory on market day. bounties were made available to vessels from and fitted out in great britain for newfoundland fishing. any shipmaster carrying as passengers any fisherman, sailor, or artificer to america forfeited 200 pounds because such men had been seduced from british fishing vessels in newfoundland, to the detriment of the fishing industry. the many years of significant achievements of the colonists, such as taming the wilderness and building cities, had given them confidence in their ability to govern themselves. the average colonial family had a better standard of living than the average family in england. many of its top citizenry had reached their positions by hard work applied to opportunities for upward mobility. with the confidence of success, the american colonies in 1776 declared their independence from britain, relying on the principles stated by john locke and jean jacques rousseau that man was naturally free and all men equal, and that society was only created with their consent. issac's newtons's unified laws of the universe had contributed to this idea of a natural law of rights of men. thomas jefferson wrote a declaration of independence which listed the colonies' grievances against the crown which reiterated many of the provisions of the petition of right and bill of rights, specifically dispensing with and suspending laws, maintaining a standing army and quartering troops without legislative consent, imposing arbitrary taxation, encouraging illegal prosecutions in strange courts, and corrupting the jury process. it was adopted about july 4, 1776. thereafter, the american colonies did not follow english law. past english law became the legal heritage of the united states of america. the law anyone who feloniously steals or aids in the stealing of goods, wares, or merchandise over 5s. from a shop, warehouse, coach house, or stable, by night or by day, whether the owner is present or not, whether there is a break in or not, may not have benefit of clergy. anyone stealing goods of 40s. worth from a ship on any river or in any port or creek or from any wharf may not have benefit of clergy. anyone receiving or buying goods they know to be stolen or who harbors or conceals any burglars, felons, or thieves knowing them to be such shall be taken as accessory to the felony and shall suffer death as punishment if the principal felon is convicted. a person taking money or reward for helping any other person to stolen goods or chattels is guilty of felony unless he brings the thief to trial. as of 1717, any person convicted of grand or petty larceny or any felonious stealing or taking of money, goods, or chattels, either from the person or from the house of any person who is entitled to benefit of clergy and who is liable only to whipping or burning in the hand may instead be transported to the american colonies to the use of any person who will pay for his transportation for seven years. any person convicted of an offense punishable by death and without benefit of clergy and buyers and receivers of stolen goods may be given mercy by the king on condition of transportation to any part of america to the use of any person who will pay for his transportation, for fourteen years or other term agreed upon. returning before the expiration of the term is punishable by death. anyone assaulting another with an offensive weapon with a design to rob may be transported for seven years. any person armed with swords, firearms, or other offensive weapons and having their faces blackened or otherwise being disguised, who appears in any forest, park, or grounds enclosed by a wall or fence wherein deer are kept (including the king's deer) or in any warren or place where hares or conies are kept or in any high road, open heath, common, or down, or who unlawfully hunts, wounds, kills, or steals any deer or steals any hare or rabbit or steals any fish out of any river or pond or who unlawfully and maliciously breaks down the head or mound of any fish pond, causing the loss of fish, or who unlawfully and maliciously kills, maims, or wounds any cattle, or who cuts down any trees planted in any avenue or growing in any garden or orchard for ornament, shelter, or profit, or who sets fire to any house, barn or out house [outer building], hovel, or stack of grain, straw, hay or wood, or who willfully and maliciously shoots any person in any dwelling house or other place, or who sends any letter with no signature or a fictitious signature, demanding money, venison, or other valuable thing, or who forcibly rescues any person lawfully in custody for any of these offenses, or who procures others by gift or promise of money or other reward to join with him in any such unlawful act is guilty of felony and shall suffer death without benefit of clergy. persons abetting them are also guilty of felony and shall suffer death without benefit of clergy. attainder shall not work corruption of the blood, loss of dower, or forfeiture of lands, goods, or chattel. the persons sustaining damages can recover 200 pounds or less from the hundred, with inhabitants paying proportionately, unless one of the offenders is convicted within six months. if other hundreds have not diligently followed the hue and cry, they shall pay half such damages. in 1735, it was required that there be notice to the constable or other officer or tythingman and public notice in the london gazette describing the robbery, offenders, and goods taken before the hundred had to pay damages. also, it did not have to pay damages if one offender was apprehended with 40 days of publication in the london gazette, but did have to pay the apprehender 10 pounds. in 1754 was also included letters threatening killing people or burning houses, barns or stacks of grain, hay, or straw, without any demand. also, persons who rescued such offenders from gaol were given the same penalty. later, persons obtaining money or goods by false pretenses with an intent to defraud or cheat or sending a letter without a true signature threatening to accuse any person of a crime with an intent to extort money or goods, are punishable by fine and prison, pillory, or whipping or transportation for seven years. later, no person may recover more than 200 pounds after a hue and cry unless there are at least two witnesses to the robbery. no one may advertise a reward for return of things stolen or lost with no questions asked, because this has resulted in thefts and robberies. anyone stealing sheep or cattle or parts thereof is a felon and shall suffer death without benefit of clergy. persons who steal or aid in stealing any lead, iron bar, iron gate, palisade, or iron rail fixed to any house or its outhouses, garden, orchard, or courtyard is guilty of felony and may be transported for seven years. in 1756 also included was copper, brass, bell-metal, and solder; buyers and receivers; and mills, warehouses, workshops, wharves, ships, barges, and other vessels. search warrants were authorized in case of suspicion. officers and solicited buyers and receivers were required to take persons who at night were reasonably suspected of having or carrying such items, to an accounting before a justice of the peace. also a notice was put in the newspaper for any owners to claim such. if the person did not give a satisfactory account of the items, he was guilty of a misdemeanor punishable by forfeiture of 2 pounds or prison up to one month for the first offense, 4 pounds or prison for two months for the second offense, and 6 pounds or prison for any subsequent offense (without bail). an officer or solicited buyer or receiver who did not take a suspect to a justice of the peace was punishable by the same penalties except the amounts of forfeiture were 1 pound, 2 pounds, and 4 pounds respectively. a felon who brought two buyers or receivers to justice was to be pardoned. a description of any goods and the appearance of a rogue or vagabond or idle and disorderly person shall be advertised in a public paper for identification by the owner as stolen. pawning goods without consent of the owner is punishable by forfeiture of 20s. or hard labor for fourteen days with whipping there. maliciously destroying river banks resulting in lands being overflowed or damaged is a felony for which one shall suffer death without benefit of clergy. later, transportation for seven years was made an alternative. the punishment for forgery or counterfeiting or assisting in such or claiming a counterfeit item is good while knowing that it is not, with an intent to defraud is death without benefit of clergy. the punishment for perjury or subordination of perjury is hard labor in the house of correction for up to seven years or transportation for up to seven years. the punishment for altering numbers on bills of exchange or other payment papers is death. it is high treason to counterfeit the coinage. a person who tenders coin, knowing it to be false, shall spend six months in prison and acquire sureties for good behavior for the next six months. if he offends again, he shall spend two years in prison and acquire sureties for good behavior for the next two years. the third offense is felony without benefit of clergy. in 1773, making or possessing any frame, mould, or instrument for forging paper notes of the bank of england and putting this identification thereon is felony with penalty of death without benefit of clergy. anyone who forges promissory notes, bills of exchange, or inland bills of the bank of england by engraving or etching on metal or wood "bank of england" or "bank post bill" shall go to gaol for up to six months. anyone selling gold or silver ware, vessel, plate or other item large enough to be marked which has not been marked by its maker shall forfeit 10 pounds or be kept at hard labor up to six months. anyone counterfeiting such mark shall forfeit 100 pounds. later, vendors of these items were required to be licensed and the penalty for counterfeiting was raised to felony for which one shall suffer death without benefit of clergy. later still, transportation for fourteen years was allowed as an alternative. if an item was not all silver, e.g. had metal underneath, 100 pounds was to be forfeited. in 1769, receivers of stolen jewels and gold and silver plate and watches knowing them to be stolen, in cases of burglary and highway robbery, were subject to transportation for 14 years. anyone who willfully and maliciously set on fire any mine or pit of coal is guilty of felony and shall suffer death without benefit of clergy. anyone who willfully and maliciously floods a coal work, mine pit or who makes underground cavities or passages with intent to destroy or damage such, or obstructs any sough or sewer made for draining such, which has been held in common for 50 years, shall forfeit treble damages. this is to deter these offenses, which have been done to enhance the price of coals and gain a monopoly thereof. if twelve or more people who riotously and tumultuously assemble and disturb the peace, do not disburse within an hour of an order to disburse by a justice or sheriff or mayor, they shall be deemed felons without benefit of clergy. any people pulling down or destroying a church, dwelling house, barn, stable, or other out house; any mill; any engine used for draining water from any coal, lead, tin, or copper mines, or for drawing coals from mines; or bridge, wagon, or fences used in such industry will be deemed felons without benefit of clergy and may be transported for seven years. the cost of repair is to be borne by the hundred or town. the earlier statute that substituted burning in the cheek for burning in the hand is repealed because this not only did not deter offenders, but on the contrary, made them unfit for honest livelihoods and therefore more desperate. those convicted of theft or larceny shall be burnt in the hand and may be kept at hard labor in a house of correction for 2-24 months, without bail. anyone stealing goods off shipwrecks, or putting out a false light to bring a ship to danger, or beating or wounding with an intent to kill or otherwise obstructing a person escaping from the ship to save his life shall suffer death without benefit of clergy. except that goods of small value taken without violence shall be punished as petty larceny. the houses of suspect people may be searched by warrant. if there are goods found or if people are found offering goods to sell, they may be ordered by a justice to give an account of these goods. if the account is not satisfactory, the punishment is forfeiture of treble their value or six months in prison. a reasonable reward may be given to the discoverer. anyone assaulting a magistrate or officer involved in salvage work shall be transported for seven years. armed persons up to three in number assembled to assist in illegal exporting or running, landing, or carrying away prohibited or uncustomed goods, and any person apprehended by any revenue officer, and anyone with his face blackened or masked who obstructs, assaults, opposes, or resists any revenue officer seizing such goods, or who shoots at or maims or wounds any revenue officer attempting to go on any ship shall suffer death as felons without benefit of clergy or serve as commons sailors in the navy for at least one year. harborers of such offenders will be transported for seven years. the hundreds shall pay 100 pounds for each revenue officer killed, and up to 40 pounds for each one beaten, wounded, or maimed, and damages up to 200 pounds for goods, unless an offender is caught and convicted in six months. there is a reward of 500 pounds to an apprehender, and 50 pounds for an attempt to apprehend in which one loses a limb or eye or is maimed or wounded, and 100 pounds to his family if he is killed. an offender who brings two of his accomplices to justice will be acquitted and rewarded 50 pounds for each such accomplice. later, an incentive was given to customs officers to have a portion of the proceeds of the sale of such goods seized by them, such as 2/3 for wrought silks and calicoes, and 1/3 for tea, coffee, foreign brandy, and rum. still later, any person could seize wrought silk, including ribbons, laces, and girdles containing it, from the importer or retailer, and the importer was to forfeit 100 pounds, and any import assistants 50 pounds, and retailers or concealers 50 pounds, with one half going to the suer. also, the goods were to be publicly burnt. still later, the penalty was increased to forfeiture of 200 pounds for all offenders, but not including wearers, and the goods were to be publicly sold for export rather than burnt. then the import of silk stockings, silk mitts, and silk gloves was prohibited for the support of the english silk industry. retailers, sellers, and concealers of such were to forfeit the goods and 200 pounds. search warrants could be issued. in 1765, importers, sellers, and manufacturing users of most foreign wrought silks or velvets were to forfeit the goods and 100 pounds. the goods were sold for export with the proceeds going 1/2 to the king, and 1/2 to the seizing officer. the wearer was not liable. the burden of proof of the place of manufacture was on the person prosecuted rather than on the prosecutor. persons breaking into houses or shops to destroy any wool or silk being made or tools or racks used shall suffer death as felons, to prevent combinations of workmen. in 1768, bounties were made available to american exporters of raw silk to great britain, whose climate was not conducive to the growing of mulberry trees on which silk worms feed. in 1774, cotton printed, stained, or dyed that has been manufactured in great britain may be worn and used, but must have a mark woven in the warp that it was manufactured in great britain. persons importing other such cloth shall forfeit it and ten pounds per piece. persons selling such with a counterfeit stamp with an intent to defraud shall suffer death without benefit of clergy. the protective measures for english silk manufacture did not work well. any pirate, accessory to piracy, commander or master or other person of any ship or vessel who trades with a pirate or furnishes him with ammunition or provisions of fits out a ship to trade with pirates shall suffer death and loss of lands, goods, and chattels. seamen maimed in fighting pirates may be admitted into greenwich hospital. (this hospital received support from duties paid by vessels of the realm and of the colonies.) masters or seamen not fighting shall forfeit their wages and spend 6 months in prison if the ship is taken. masters shall not advance to any seamen above half his wages since deserting is the chief occasion of their turning into pirates. in london penalties for crimes against property rose so that by 1740, a child could be hanged for stealing a handkerchief worth 1s. from a person's body. trade and the economy boomed in time of war, buttressed by the increased production in the coal, iron, steel, shipbuilding, and cloth industries. but peace brought depression and much misery, including the imprisonment of many debtors. when very many were imprisoned, statutes allowed release on certain conditions. after assets were paid to creditors in proportion to the amounts owed to them, debtors could be discharged from prison if they owed no party more than 100 pounds (later no restriction and still later, 50 pounds, and even later, 500 pounds, and in 1772, 1000 pounds, and in 1774, 2000 pounds) and take an oath that they have less than 10 pounds (20 in 1772) worth of property (including 40s. in money in 1774), because there were so many debtors in prison who were impoverished by war losses and other misfortunes in trades and professions, and were totally disabled from paying their creditors, and they and their families either starved or became a burden to their parishes and became an occasion of pestilence and other contagious diseases. exempted were those debtors for whom there was an objection by one of their creditors who paid for the maintenance of that debtor in prison. prisoners discharged were also discharged from chamber [cell] rent and gaolers' fees, but not from their debts to creditors. during war, no male prisoner could be discharged unless he enlisted in the royal army or navy until the end of the war. in 1774, the discoverer of any asset of a debtor not listed by that debtor was to receive a reward of 20 pounds per hundred, and anyone concealing an asset of a debtor was to forfeit 100 pounds as well as double the value of the asset. a person declared bankrupt shall subsequently be examined from time to time as to their goods, money, or other effects or estate to prevent the frauds frequently committed by bankrupts. a default or willful omission shall be deemed felony without benefit of clergy. a bankrupt or other person concealing goods to the value of at least 20 pounds or his books with intent to defraud is a felony without benefit of clergy. a debtor refusing to come to court for examination or hiding assets of more than 20 pounds is guilty of felony and his goods and estate shall be divided among his creditors. later, a bankrupt coming to an examination was allowed to keep 5 (or 7 1/2 or 10) pounds per 100, up to a maximum of 200 (or 250 or 300, respectively) pounds if he paid his creditors 10s. (or 12s.6d. or 15s. respectively) per pound. his future estate was still liable to creditors, excepting tools of trade, necessary household goods, bedding, furniture, and wearing apparel of the family up to 10 pounds, if it could pay every creditor 15s. per pound. if he didn't pay this, he could be imprisoned. bankrupts excepted from the benefits of this act are those who lost 5 pounds in any one day or 100 pounds in the preceding year from gambling or wagers. no goods or chattels on lands or tenements which are leased for life or lives or term of years or at will or otherwise "shall be liable to be taken by virtue of any execution on any pretence whatsoever unless the party at whose suit the said execution is sued out shall before the removal of such goods from off the said premises by virtue of such execution or extent pay to the landlord" all money due as rent. if the lessee fraudulently or clandestinely conveys or carries off his goods or chattels with intent to deprive the landlord or lessor from distraining the same for arrears of such rent, the lessor or landlord may, within five days, seize such goods and chattels as a distress for the arrears of rent and may sell them as if actually distrained on the premises. every person under 21 and every woman-covert who is entitled by descent or will to be admitted tenants of any copyhold lands or hereditaments may be ordered to appear by a guardian or attorney to be compelled to be so admitted and to pay such fines as are owing by the lands. if one is so admitted, but does not pay, the lord may enter the lands and receive its rents, but not sell timber, until the fine and costs are satisfied, after which the land is to be given back and may not be forfeited to the lord. tenants holding over any lands after their term expired and after demand for possession was made shall pay double the yearly value of such to the landlord. the landlord may reenter and eject a tenant if rent is in arrears for 1/2 year. landlords may distrain within 30 days and sell goods and chattels fraudulently or clandestinely carried off the premises by renters in arrears of rent. this applies to goods sold to others privy to the fraud. they may use force if necessary to break open houses upon giving a justice of the peace reasonable grounds to suspect and to break open other buildings in the presence of a constable. the renter is to forfeit double the value of such. the landlord may distrain the renter's cattle on any common or any growing grain, roots, or fruit. attornments of renters made to strangers who claim title and turn the landlord out of possession are void. chief leases may be renewed without surrendering all the under leases. this is to prevent subtenants from delaying the renewal of the principal lease by refusing to surrender their leases, notwithstanding that they have covenanted to do so. but the rents and duties of the new subleases may not exceed those of their former leases. any person claiming a remainder, reversion, or expectancy in any estate upon a person's death, who has cause to believe that that person is dead and that the death is being concealed by the person's guardian, trustee, husband, or other person, may request yearly an order in chancery for the production of such tenant for life. upon refusal, the tenant for life shall be deemed dead. as of 1752, all devices, legacies, and bequests made by will in great britain or the colonies had to be in writing and witnessed by three witnesses, or would be held void. no witness was to receive anything by the will that he witnessed. an accessory before or after the fact of felony may be prosecuted and tried not only if the principal accused felon has been convicted, but even if he stood mute or peremptorily challenged over 20 persons to serve on the jury. the accessories shall be punished the same as if the principal had been attainted. buyers and receivers of stolen goods may be prosecuted and punished if they knew the goods to be stolen, even if the principal felon has not been convicted. the punishment will be as for misdemeanor by fine and imprisonment. this is to deter the counselors and contrivers of theft and other felonies and the receivers of stolen goods from taking advantage of the former rule that an accessory could not be convicted or punished unless the principal had first been attainted. and if any captain or mariner or other officer belonging to any ship willfully casts away, burns, or otherwise destroys that ship to the prejudice of its owners or merchants loading goods onto the ship, he shall suffer death as a felon. journeymen shoemakers or employees of such who sell or pawn boots, shoes, slippers, cut leather or other materials for making such goods which are not his proper goods, or exchange for worse good leather which has been entrusted to them, shall for the first offense, recompense the injured person, or if his goods are insufficient for distress, may be whipped. for the second offense, he shall be sent to hard labor in a house of correction for 14-30 days. a person who buys or receives or takes in pawn such goods shall suffer the same penalties. justices of the peace may issue warrants to search houses and buildings in the daytime if there is "just cause to suspect" such goods therein based upon information given to him under oath. anyone employed in the working up of woolen, linen, fustian, cotton, or iron manufacture who embezzles or purloins any materials for their work shall forfeit double the value of the damages done and anyone convicted thereof may be put into the house of correction until he pays, or if he can't pay, to be publicly whipped and kept at hard labor for no more than 14 days. persons convicted of buying or receiving such materials shall suffer like penalties and forfeitures as one convicted of embezzling or purloining such materials. laborers employed in such manufacture must be paid in coin and not in cloth, victuals, or commodities in lieu thereof. leatherworkers were added with a penalty of up to double the value. later this statute was amended to include a penalty for the second offense of forfeiture of four times the value, or else hard labor at a house of correction for 1-3 months and whipping once or more in the market town. like penalties were given for buyers of such material knowing it to be false. one who neglected finishing and delivering such goods because he was leaving this employment was to be sent to the house of correction for up to one month. the penalty for possessing or offering to sell any hare, pheasant, partridge, moor or heath game or grouse by any carrier, innkeeper, victualer, or alehouse keeper is 5 pounds, 1/2 to the informer, and 1/2 to the poor of the parish. if unable to pay, the offender shall be placed in the house of correction for three months without bail. unauthorized persons keeping or using greyhounds, setting dogs, or any engine to kill game shall suffer the same penalties. in 1770, anyone killing hare at night or using any gun, dog, or other engine to take or kill or destroy any hare, pheasant, partridge, moor game, heath game, or grouse in the night shall be whipped and also go to gaol or the house of correction for 3-6 months without bail for the first offense, and for 6-12 months without bail for any further offense. if such occurs on a sunday, the offender must forfeit 20-30 pounds or go to gaol for 3-6 months. in 1773, no one may kill or take or possess any heath fowl or any grouse except at a limited period during the year. each manor may have only one gamekeeper allowed to kill game such as hare, pheasant, partridge and only for his household's use. this gamekeeper must be either qualified by law or a servant of the land's lord. other persons possessing game or keeping a greyhound or setting dogs or guns or other devices to kill game must forfeit them and five pounds. anyone killing or attempting to kill by shooting any house dove or pigeon shall forfeit 20s. or do hard labor for one to three months. excepted are owners of dove cotes or pigeon houses erected for the preservation and breeding of such. a gamekeeper or other officer of a forest or park who kills a deer without consent of the owner must forfeit 50 pounds per deer, to be taken by distress if necessary, and if he can't pay, he is to be imprisoned for three years without bail and set in the pillory for two hours on some market day. a later penalty was transportation for seven years. anyone pulling down walls of any forest or park where deer are kept, without the consent of the owner, must forfeit 30 pounds and if he can't pay, he is to be imprisoned for one year without bail and spend one hour in the pillory on market day. later, the killing of deer in open fields or forests was given the same penalties instead of only the monetary penalty prescribed by former law (former chapter). the penalty for a second offense was given as transportation for seven years. anyone beating or wounding a gamekeeper with an intent to kill any deer in an open or closed place was to be transported for seven years. anyone who apprehends and prosecutes a person guilty of burglary or felonious breaking and entering any house in the day time shall be rewarded 40 pounds in addition to being discharged from parish and ward offices. justices of the peace may authorize constables and other peace officers to enter any house to search for stolen venison. any person apprehending an offender or causing such to be convicted who is killed or wounded so as to lose an eye or the use of a limb shall receive 50 pounds. any person buying suspect venison or skin of deer shall produce the seller or be punished the same as a deer killer: 30 pounds or, if he couldn't pay, one year in prison without bail and one hour in the pillory on market day. an offender who discloses his accomplices and their occupations and places of abode and discovers where they may be found and they are subsequently convicted, shall be pardoned. all persons pretending to be patent gatherers or collectors for prison gaols or hospitals and all fencers, bearwards, common players of interludes, minstrels, jugglers, and pretended gypsies, and those dressing like egyptians or pretending to have skill in physiognomy, palm-reading, or like crafty science, or pretending to tell fortunes, and beggars, and all persons able in body who run away and leave their wives or children to the parish shall be deemed rogues and vagabonds. apprehenders of such persons bringing them before a justice of the peace may be rewarded 2s. any constable not apprehending such shall forfeit 10s. persons wandering outside the place determined by a justice of the peace to be his settlement may be whipped on the back until it is bloody or sent to hard labor at a house of correction. if he was dangerous and incorrigible, for instance as indicated by swearing falsely before a justice of the peace, he could suffer both punishments with the whipping being on three market days. if he escaped from the house of correction, it was felony. if he has been absent for more than two years, he could be put out as an apprentice for seven years in the realm, in the colonies, or in a british factory beyond the seas. included later were performers for gain from outside their parish of any play, tragedy, comedy, opera, farce or other entertainment of the stage, including performances in public places where wine, ale, beer, or other liquors are sold, or else forfeit 50 pounds. exempted were performances authorized by the king in westminster. unlicensed places of entertainment are deemed disorderly (like bawdy houses and gaming houses) because they increase idleness, which produces mischief and inconvenience. persons therein may be seized by a constable. persons keeping such a place shall forfeit 100 pounds. no licensed place of entertainment may be opened until 5:00 p.m. later there was an award of 5s. for apprehending a person leaving his wife and children to the parish, living idly, refusing to work at going rates, or going from door or placing themselves in the streets to beg. this includes begging by persons who pretend to be soldiers, mariners, seafaring men, or harvest workers. these rogues and vagabonds shall be sent to hard labor at a house of correction for up to one month. the real soldiers, mariners, seafaring men, and harvest workers shall carry official documents indicating their route and limiting the time of such passage. persons pretending to be lame who beg are to be removed. if he comes back to beg, his back may be whipped until bloody. if a constable neglects this duty, he shall forfeit 10s. masters of ships bringing in vagabonds or beggars from ireland or the colonies shall forfeit five pounds for each one. this money shall be used for reconveying such people back at a price determined by a justice of the peace. a master of a ship refusing to take such a person shall forfeit five pounds. these vagabonds and beggars may be whipped. anyone who profanely curses or swears shall suffer the following penalties: day laborer, common soldier, common sailor, common seaman 1s., anyone else below the degree of gentleman 2s., gentlemen and above 5s., and for the second offense, a double fine, for further offense, a treble fine. if a person can't pay, he shall be put to hard labor at a house of correction for ten days, or if a common soldier, common sailor, or common seaman, he shall be set in the stocks for 1-2 hours. this is to prevent the provocation of divine vengeance. anyone setting up or maintaining lotteries or deceitful games must forfeit 200 pounds, or go to prison up to 6 months. any one who plays at such, such as by drawing lots or using cards or dice, must forfeit 50 pounds. sales of lottery items, such as houses, lands, plate, jewels, or ships, are void and these items will be forfeited to any person who sues. such have caused many families to become impoverished, especially through their children or through the servants of gentlemen, traders, and merchants. backgammon games are exempt. later, people who lost up to ten pounds in deceitful gaming were allowed to sue to recover this money from the winners. also, anyone winning or losing ten pounds at one time or twenty pounds within 24 hours shall be fined five times the value of such. offenders discovering others, who are convicted, are indemnified from all penalties and shall be admitted to give evidence. no one may run more than one horse, mare, or gelding in a horse race. no prize may be under 50 pounds value. this is because a great number of horse races for small prizes have contributed to idleness, to the impoverishment of the meaner sort of people, and has prejudiced the breed of strong and useful horses. wagers and agreements in the nature of puts and refusals relating to prices of stocks or securities are void. those making or executing such agreements must forfeit 500 pounds. those selling stock which one does not possess must forfeit 500 pounds. brokers negotiating such agreements must forfeit 100 pounds. only a person with an interest in the life or death of another may have insurance on this other, to prevent the mischievous kind of gaming that has been introduced. apples and pears may not be sold by any measure other than a standard water measure, or else forfeit 10s., one-half to the informer, and one-half to the poor, except for measures sealed by the company of fruiterers. this is to decrease the suits between buyers and sellers. there shall be enough silver and gold on silver and gold plated silk thread and wire so that it does not crumble off, thereby wasting the bullion of the nation. this is also to encourage its export by making it competitive in trade with such foreign articles, which may not be imported. malt to be sold or exported must not be fraudulently mixed with unmalted grain to lower duties payable or else forfeit 5s. any one who adulterates coffee with water, grease, butter, and such shall forfeit 20 pounds, 1/2 to the king, and 1/2 to the suer. walnut tree leaves, hop leaves, sycamore leaves and such may not be made to imitate tobacco leaves for sale or else forfeit 5s. per pound. persons near london may not make unsound, hollow, or improperly heated bricks. makers of narrow woolen cloths must weave or set in the head of every piece his initials or else forfeit one pound. this is to prevent frauds and abuses, particularly in stretching and straining the cloth. the fulling mill owner must append his seal of lead with his name and with his measurements. the searcher to be appointed must measure such cloths when wet for conformity to standard measurements and append his seal with his measurements. he may also inspect any places he chooses. in 1774, any wool-making employee not returning all working tools and implements and wool and all materials with which entrusted back to his employer, or who fraudulently steams, damps, or waters such wool, or who takes off any mark on any piece of cloth, shall go to the house of correction for one month. if he absconds with or sells such or anyone fraudulently buys or receives such from him, a search warrant may be issued to seize any other such tools or material. if found, the possessor may be brought to account before a justice of the peace, and if his account is not satisfactory, he shall forfeit such. a search warrant may also be issued for houses on "just cause to suspect" by oath of a credible witness. for a second offense, the penalty is up to three months in a house of correction. for a third offense, the penalty is up to six months in a house of correction and public whipping. bakers must mark their bread with w for white, wh for wheaten, and h for household or else forfeit 20s. to the informer. in 1758, a new assize of bread set prices for rye, barley, oats, and beans by the bushel. the prices for the three qualities of wheat, for wheaten (prized and unprized), and for household grain by the bushel were to be determined from within a statutory range by the local mayor or justice of the peace. mayors and justices of the peace were to determine a fair profit for their local bakers for all the types of bread. a miller, mealman, or baker adulterating bread was to forfeit 40s. 10 pounds, part of which money could be used in publishing his name, abode, and offense in the local newspaper. later, there was a forfeiture of 1-5s. for every ounce underweight. household bread was to be 1/4 cheaper than wheaten or forfeit 10-40s. bread inferior to wheaten was not to be sold at a price higher than household or else forfeit up to 20s. if the forfeiture was not paid, it could be levied by distress, or otherwise the offender was to spend one month in gaol or a house of correction. straw to be sold in london must be sound, firmly bound in a truss, and of a given weight or else forfeit it and 20s. if no truss, and 1s. if in truss but underweight or of mixed quality. handlers must keep registers of sellers, buyers, weights, dates of sale, and prices or else forfeit 10-20s. frame-work knitted pieces and stockings shall be marked with the correct number of threads by the master, frame-work knitter, or master hosier, or forfeit the goods and 5 pounds. if a journeyman apprentice, or servant employ does not mark correctly, he shall forfeit the goods and 5s.-40s. sellers of such shall forfeit the goods and 5 pounds per piece. at every fishing season, the quantity of salt, foreign or domestic, used by a proprietor for curing fish for export shall be accounted and sworn to so that it can be compared with the quantity of fish exported by the proprietor to ensure that the salt duties are fully paid, or else forfeit 40 pounds. if such salt is sold for other uses than curing fish, the proprietor is to forfeit 20s. per bushel sold and the users thereof, to forfeit 20s. per bushel bought, delivered, or used. if one can't pay, he is to be whipped and put to hard labor in a house of correction for up to three months. agreements between coal owners, lightermen, fitters, master or owners of ships, hindering the free sale, loading, and unloading, navigating, or disposing of coals are illegal, null, and void. this is engrossing and has caused the price of coals to go up. no coal trader or dealer may use his own lighters, barges, or other vessels to carry coals on the thames river to and from any ship and to and from any wharf, dock, or creek because this has impaired the business of the watermen and wherrymen, whose vessels must now be registered and display such mark on their hulls. no lightermen nor buyers of coals may act as agent for any master or owner of a ship importing coals into london or else forfeit 200 pounds, because this combination has caused the price of coal to go up. selling one sort of coal for another is punishable by forfeiture of 500 pounds. only standard size coal sacks may be used for selling coal and they must be sealed and stamped by an official at the guildhouse before sale. the mayor and aldermen of london may set the price of coals coming into this port. in other areas, justices of the peace set the prices of coals which allowed "a competent profit". if a merchant refused to sell at that price, the justice of the peace could authorize seizure and sale by officers. later, coal measurers must give the coal cart driver a ticket with the name of the sellers and consumers, the quantity and quality of the coal, its price, the date of sale, and the name of the cart driver or else forfeit 5 pounds. the cart driver must give this ticket to the consumer or forfeit 5 pounds. if coal is carried by cart without a ticket, the seller forfeits 50 pounds and the driver 5 pounds. any owner of timber trees, fruit trees, and other trees used for shelter, ornament, or profit, which are cut down or otherwise destroyed shall be made good by his parish or town, as is an owner of hedges and dikes overthrown by persons in the night. in 1765, anyone cutting down or destroying any oak or other timber trees at night shall forfeit up to 20 pounds for the first offense, up to 30 pounds for the second offense, and shall be transported to the colonies for seven years for any further offense. anyone digging up or destroying or carrying away any root, shrub, or plant worth up to 5s. in a garden, nursery, or other enclosed ground at night shall forfeit up to 2 pounds for the first offense, up to 5 pounds for the second offense, and shall be transported to the colonies for seven years for any further offense. anyone not paying is to be gaoled. aiders and buyers who know the item was stolen shall incur the same penalties. later, many other types of trees, such as beach, ash, elm, cedar, and walnut were included as timber trees, and hollies, thorns, and quicksets included as plants. any person using violence to hinder the purchase or transportation of grain, e.g. by beating or wounding a buyer; beating or wounding the driver or horse of a cart loaded with wheat, flour, meal, malt, or other grain, or cutting the harness of or driving away the horse, or cutting or carrying away the sacks of grain is to be put in the common gaol or house of correction with hard labor for 1-3 months, and whipped in the market place between 11:00 and 2:00. the penalty for a second offense or for destroying a storehouse or granary where grain is kept to be exported or for taking or spoiling such grain, or for throwing such off a ship or vessel is transportation for seven years. the hundreds concerned are to pay damages up to a total of 100 pounds, but only if notice is given to the constable within two days and there is an oath and examination before a justice of the peace within ten days of the owner or his servants. if any offender is convicted within a year, the hundreds are released. anyone who steals at night any cloth or wool or woolen goods set out to dry on racks shall forfeit treble damages, or if he can't pay, be sent to prison for three months without bail. for the second offense, he shall forfeit treble damages and be sent to prison for six months without bail. for the third offense, he shall be transported for seven years. upon complaint, a justice of the peace may authorize a constable or other peace officer to enter and search houses, outhouses, yards, and gardens of a person suspected by the owner. this person shall account to the justice of the peace and may bring a witness to his purchase of the items. if the account is unsatisfactory, he shall be penalized. anyone taking linens, fustians, or cottons set out for whitening, bleaching, or printing up to the value of 10s. in lands, grounds, or buildings may be transported for seven years. later, this penalty was increased to death without benefit of clergy or transportation for fourteen years. anyone stealing or maliciously pulling up or destroying any turnips on a person's land must pay damages or go to gaol for up to one month. he may be whipped. the penalty for a second offense is three months in a house of correction. this statute of 1750 was, in 1773, extended to include potatoes, cabbages, parsnips, peas, and carrots. a penalty up to 10s. was added. evidence of the owner was to be taken. in 1769, anyone who steals a dog or receives such knowing it to be stolen shall forfeit 20-30 pounds for the first offense, and 30-50 pounds for the second offense or go to gaol or the house of correction for 12-18 months and be publicly whipped there. search warrants may be issued to search for stolen dogs or their skins. one-half of the forfeiture will go to the informer. officers of the revenue who collude with importers to return to them goods which have been seized for nonpayment of duties shall forfeit 500 pounds and lose office, unless they disclose their accomplices within two months. the importer shall forfeit treble the value of such goods. any ship not more than 50 tons hovering on the coast with customable or prohibited goods may be boarded by a customs officer, who may demand bond for treble the value of the goods. in 1724, persons contracting with artificers and manufacturers of wool, iron, steel, brass, and other metals, clockmakers, or watchmakers, to go to a foreign country and there receive greater wages and advantages shall forfeit 100 pounds and spend 3 months in prison for the first offense, and shall forfeit a sum determined by the court and spend 12 months in prison for the second offense. an artificer or manufacturer not returning after warning is given by the ambassador is to forfeit hereditaments, goods, and lands and to be deemed an alien. later, in 1750, cotton and silk were included and the penalty was increased to 500 pounds and 12 months in gaol for the first offense, and 1000 pounds and 2 years in prison for the second offense. also, anyone exporting tools of wool or silk manufacture was to forfeit the tools and 200 pounds. this statute was strictly enforced. in 1774, tools of cotton and linen manufacture were included. in 1772, all statutes against engrossing, forestalling, and regrating were repealed because they had prevented free trade and tended to increase prices, e.g. of grain, meal, flour, cattle, and other victuals. anyone assisting a felon (except for petty larceny) to try to escape from gaol, is guilty of felony and shall be transported for seven years. anyone assisting a person who owes or is to pay 100 pounds to try to escape from gaol is guilty of a misdemeanor. in 1772, prison keepers were indemnified from creditors for any escapes of debtors due to conspiracy and break out with weapons and firearms rather than due to negligence of the prison keeper, as had been occurring. no more than 600 pounds of gunpowder may be kept in any building in london or westminster or suburbs thereof. later, no more than 200 pounds of gunpowder were allowed to be kept therein for more than 24 hours. buildings may be searched on "reasonable cause" shown to a justice of the peace. later, no more than 400 pounds of gunpowder could be kept for more than 24 hours near any town, or more than 300 pounds for more than 24 hours in any place. then no gunpowder could be conveyed by land over 25 barrels or by water over 200 barrels. it was customary for officers to take the oaths of allegiance and supremacy to any new monarch. when george i became king in 1714, all civil and military officers, clergy, schoolmasters, and lawyers, solicitors, clerks, etc. living within 30 miles of london had to take an oath of allegiance and a new oath that the person was not papist and agreed that no foreigners had jurisdiction in the realm, such as to excommunicate someone and thus declaring he could be legitimately killed. soon after, it was required that papists had to register their names and real estates. commissioners were appointed to make inquiries. if a person did not take the oaths or did not register, he was to forfeit 2/3 of his land to the king and 1/3 to a protestant who sued for such. this was in order to deter future rebellions against the king and efforts to destroy the protestant religion. as late as 1722, there was a papist conspiracy to take the tower of london and the king, and make a catholic king. this resulted in the imprisonment of the conspirators and a new statute: persons not taking the oath of allegiance and above oath that they were not papist shall register their lands and yearly rents and pay double the land tax and 100,000 pounds. after payment, they are discharged from forfeiting 2/3 of their lands' rents for one year. papists enlisting in the army are liable to corporal punishment, but not death, as determined by a court martial. any mayor, bailiff, or other magistrate who is present at any meeting for public worship other than the church of england will lose office and is barred from any public office or employment. jews may not refuse suitable maintenance to their children who are christian to pressure them to convert back to judaism. black slaves were common for a time in london. this was a result of the voluminous triangle trade of manufactured goods from england, slaves from west africa, and sugar and tobacco from the west indies. slavery was largely abolished by judicial decision of chief justice mansfield in 1772. if a sheriff does not answer for money collected for the exchequer, he shall forfeit treble damages to the aggrieved person, double the sum missing to the aggrieved person, 100 pounds to the king, and 100 pounds to the party who sues. if a sheriff take a fee for levying or collecting money due to the king (except 4d. for an acquittance) or take a sum for not levying money due, he is guilty of extortion, injustice, and oppression and shall forfeit treble damages and costs to the aggrieved person, and double the sum extorted to the aggrieved person. a sheriff may not levy more than 12d. for every 20s. of yearly income of any manor for up to 100 pounds of income, and 6d. for value over 100 pounds. no one may cut pine trees that are fit for masts of ship in new england without license by the queen or else forfeit 100 pounds. later, pine trees on private property were exempted. citizens of great britain may sue colonial debtors by oath before british magistrates and a debtor's colonial lands and houses and negroes may be used to satisfy his debts. anyone pretending to act under a charter and taking subscriptions in great britain or the colonies must forfeit treble damages. no hats, including beaver hats, may be exported from any colony even to another colony because this has hurt british hat manufacture. the penalty is 500 pounds. no one in the colonies except present hatmakers who are householders and journeymen may make hats unless they serve a seven year apprenticeship. no hatmaker in the colonies may have more than two apprentices at once. whaling ships near greenland were prohibited from returning until their hulls were full. vessels built or fitted out in america may engage in whaling. pig iron from the colonies may be imported free, but there may be no mill for slitting or rolling iron and no plateing-forge or other engine to work with a tilt hammer and no furnace for making steel erected or used in the colonies or else forfeit 200 pounds. no paper bills of credit may be used in new england because such have depreciated. william blackstone lectured on law at oxford university in 1753. as a result, the first professorship of english law was established. his lectures were published in 1769 as the "commentaries on the laws of england". they greatly influenced the american colonists and were the basis of legal education in england and america for years. they were comprehensive and covered real property, crime and punishment, court procedure, contract, corporations, and commercial law. he wrote "the great charter and charter of the forest" in 1759. judicial procedure there were twelve common law justices of the court of the king's bench, court of common pleas, and court of the exchequer. the chief justices of all of these courts were paid partly from fees paid to the court. the other justices of these courts were paid completely by salary, which in 1759 was well over 500 pounds per year. these justices were to continue in office even after a king died and could be removed only for good cause upon the address of both houses of parliament. the officers of these courts were attorneys. there was one justice at doctors' commons. the two chancery justices (since edward i) were the lord chancellor and the master of the rolls. the salary of the eleven masters of the court of chancery in 1765 was 400 pounds per year. the officers of this court were solicitors. appeals from the exchequer could be made to a court of the king's bench and common pleas combined. appeals from common pleas could be made to the king's bench. decisions of the king's bench and other common law courts could be appealed to parliament's house of lords. the common law courts rode circuit twice a year in five circuits and once a year in the north circuit. so an accused person could spend up to a year in gaol waiting for trial. few prisoners were granted bail. in each common law court, the law justices in banc would hear demurrers [contentions that the other party was wrong in the law]. no one with an interest in a suit, including the plaintiff and the defendant, could give evidence. there was no power to amend pleadings, so misspelling of the defendant's name, for instance, could result in dismissal of the suit. in 1730, the pleadings and indictments ceased to be in latin. in the common law courts, trespass in ejectment served the purposes of most of the actions involving land. assumpsit covered the whole province of debt, for which compurgation still existed, and much more. trover more than covered the old province of detinue, for which compurgation still existed. trespass still served for all cases in which the defendant had been guilty of directly applying force to the plaintiff's body, goods or chattels. trespass on the case covered miscellaneous torts. replevin was still used. covenant remained in use for the enforcement of promises under seal. account gradually came under the equity jurisdiction of chancery. common law writs of dower are largely superseded by the relief given to the doweress in the courts of equity, where new and valuable rights were given to her and to her personal representatives against the heir and his representatives. the actions of indebitatus assumpsit is being extended to actions upon quasi-contract, in which the element of contract is not required e.g. quantum meruit, where a contract is implied from the facts of the case. the deodand doctrine is still in force. in chancery, a plaintiff filed a complaint and interrogatories prepared by counsel. only in chancery could there be discovery, such as interrogatories [written questions]. court officials asked the questions of witnesses without the presence of the parties or their lawyers. officials wrote down the answers in their own terms. so there was no cross-examination possible. most decrees took many years to be made. the ordinary administrative court of first instance is that of one or two justices of the peace who issued orders in matters of public safety, public order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, fire, begging, and vagrancy. they examined suspicious persons and issued warrants for the removal of any person likely to become a public charge. the justice of the peace also regulated wages, servants, apprentices, and day laborers. in his judicial capacity, he tried all crimes and felonies except treason, though in practice death penalty cases were transferred to the assize justices. the justices of the peace of a hundred hold special sessions such as for appointment of parochial officers, highway disputes, and the grant of wine, beer, and spirit licenses. the appointment of overseers of the poor, authorization of parish rates, and reading of the riot act to mobs to disperse them, required more than one of the justices of the peace of the hundred to participate. all the justices of the peace of the county met four times a year at quarter sessions to hear appeals from penal sentences, to determine the county rate of tax, to appoint treasurers of the county and governors of the county prison and house of correction, to issue regulations on prices of provisions and on wages, to settle fees of the county officials, to grant licenses for powder-mills and other industries, to hear nuisance complaints such as those against parishes failing to keep their roads in repair, to make regulations for the holding of markets, to hear complaints concerning local government, and to register dissenting chapels. in more and more matters specified by statute, the quarter sessions heard appeals from the orders of individual justices of the peace instead of common law courts hearing them by writ of certiorari. the writ of certiorari allowed administrative decisions to be reviewed by the common law courts for compliance with law, competency of the court, and interpretation of the administrative law. the writ of habeas corpus appealed administrative decisions to imprison not only after arrest for criminal proceedings, but any coercive measure for enforcing an administrative order. the writ of mandamus was available for enforcing the injunctions of administrative law against towns, corporations, and all other authorities and private persons, where the ordinary punishments were insufficient. justices of the peace in rural areas were squires and in towns aldermen. in 1747, justices of the peace were authorized to decide issues between masters and mistresses and their employees who were hired for at least one year. if a servant misbehaved, they could authorize reduction of wage, discharge, and hard labor at a house of correction up to one month. if a servant was not paid, he could authorize payment of wages up to 10 pounds for an agricultural servant, and up to 5 pounds for an artificer, handicraftsman, miner, collier, keelman, pitman, glassman, potter, or ordinary laborer. later, tinners and miners were added to the last category. in 1758, employees of less than a year were included. in 1775, justices of the peace were authorized to administer any oath for the purpose of levying penalties. to be a justice of the peace, one must have income of 100 pounds a year from a freehold, copyhold, or customary estate that is for life or for a term of at least 21 years, or be entitled to a reversion of lands leased for 1 or 2 or 3 lives, or for any term of years determinable on the death of 1 or 2 or 3 lives. excepted were peers, justices, and heads of colleges or vice chancellors at the universities. the justices of the peace were selected by the superintending sheriffs and lords lieutenant, the latter of whom were usually peer with a ministers' office or a high court official. no attorney or solicitor or proctor could be a justice of the peace unless the locality had justices of the peace by charter. no one may practice as an attorney in the courts of king's bench, common pleas, or exchequer until he has been examined by a judge of such court on his fitness and qualifications and has taken the oath to honestly demean himself and practice according to his best knowledge and ability. the same applies to a solicitor in the equity courts. this shall not exclude persons who have been bound to an attorney or solicitor for four years. attorneys and solicitors, with consent of an attorney of another court, may participate in proceedings of such other court. no attorney may have more than two clerks bound to him at one time. attorneys may be admitted as solicitors and vice-versa. the qualification for jury service is having land with an income over rents of at least 20 pounds, with leases for 500 years or more, or 99 years, or any term determinable on one or more lives. being a freeholder is not necessary. in london, the qualification is being a householder and having lands to the value of 100 pounds. no sheriff may excuse a qualified person from jury service for money or other reward. selection of jurors for each case is to be done by some impartial person pulling their names from a box. later, persons refusing jury service could be fined. in 1763, the homes of john wilkes and others were searched for a seditious and treasonous published paper and all related papers because they had been rumored to have some relationship to the conception, writing, publication, or distribution of the paper. wilkes had such papers and was convicted of libel. he countersued for damages due to criminal trespass. the court held that general search warrants were subversive of the liberty of the subject of the search in violation of the british constitution, declared the statute void, and found for wilkes. the court of common pleas agreed on appeal and put the burden of proof on the persons searching to justify the search warrant. his decision gave support to william pitt's assertion that "every man's home is his castle". for actions under 10 pounds in a superior court and actions under 40s. in an inferior court, the offender shall be served with process to appear in court rather than being arrested. for money at issue, an affidavit shall be taken. no more money may be taken for bail than the amount at controversy. this is to prevent frivolous and vexatious arrests. perjurers, forgers, those involved in barratry or suborning perjury, and pretenders practicing as attorneys or solicitors in the courts of law or equity shall be transported for seven years to the american colonies. unqualified people acting as attorneys or solicitors in the county court shall forfeit 20 pounds. writs of error at variance from the original record or otherwise defective may be amended to correct the defect by the court where such writ is returnable. no judgment is to be reversed for any defect in any bill or writ, excepting an appeal of felony or murder, or misdemeanor. this is to prevent delays of justice. justices of the peace may correct defects of form on appeals to them. plaintiffs neglecting to go to trial after an issue has been joined may be nonsuited. poor persons may be paid up to 6d. to give evidence against felons. pirates may not be tried again for the same crime or for a certain crime and high treason. when the marine force was raised, the marines were also given protection from double jeopardy. a request for certiorari for removal of convictions, judgments, orders made by justices of the peace must be made within six months and after notice to the justice of the peace who may argue cause against granting certiorari. mercantile law was developed by the common law courts, especially the king's bench. the king was to appoint the marshal of the king's bench. the marshal was to select his inferior officers to hold office as long as they "behave themselves well within". these offices had been sold by james i to a certain person, his heirs, and assigns. the marshal was to keep the prison of this court in good repair from his fees and profits of office. the office of sheriff was now an accessory department of the common law courts for summons, executions, summoning the jury, and carrying out the sentence of the law. summons for excise offenses may be left at a person's abode, workhouse, or shop as well as on his person. the coroner's office now investigated unusual deaths with a jury from the neighborhood elected by county freeholders. the last beheading was of a scottish lord in 1747; he had been involved in an attempt to restore the stuarts to the throne. so many people came that some overcrowded bleachers fell down and crushed about 20 spectators. henceforth, every sentence of death was by hanging, even for peers. in 1772, the process of pressing a man to death, if he refused to plead to an indictment was abolished. instead, persons accused or indicted, in great britain or america, of felony or piracy who stand mute shall be convicted of such charge. property of a felon was still forfeited to the crown. from 1749 on were established special procedures for speedy decisions in local courts in some areas for debts or damages under 40s. and imprisonment for such was limited for up to three months. otherwise, sentences were longer, and debts grew during the time in prison. when prisons were overcrowded, parliament let the inmates out if they gave up their possessions. they could go to georgia. there were felons' prisons and debtors' prisons. sometimes they were one and the same. there was much fighting among inmates. the inmates slept on hay if lucky. there were no washing facilities and little light. counties or friends paid for their bread. they were also sold beer, which made them drunk and riotous. the sale of beer was a recognized and legitimate source of profit to the keeper. this was remedied by statute of 1760 that no sheriff or other officer may take an arrested person to a tavern or other public house or charge him for any wine, beer, ale, victuals, tobacco or other liquor without his consent and shall allow prisoners to be brought beer, ale, victuals, bedding, and linen as the prisoner sees fit. sheriffs often kept people imprisoned unless and until they paid all their fees due to the sheriff. in 1772 was founded the society for the discharge and relief of persons imprisoned for small debts for those inmates unfortunate instead of fraudulent or extravagant. legacies were often made to debtors. there was much gaol distemper fever with fatal consequences. when john howard, a grocer who had inherited wealth, but poor health, became a sheriff, he visited many gaols. when he saw the squalid conditions there, he advocated hygienic practices. in 1774, justices of the peace were authorized to order walls and ceilings of gaols to be scraped and washed, ventilators for supplies of fresh air, a separate room for the sick prisoners, commodious bathing tubs, provision of clothes for prisoners, keeping of prisoners not below the ground, and apothecaries at a stated salary to attend and to report the state of health of prisoners. in 1773, clergymen were employed in gaols to alleviate the distress of prisoners and to contribute to morality and religion. also, no longer may any fees be taken by gaol keepers or sheriffs because persons not indicted or found not guilty have been kept in prison pending payment of such fees. instead, the counties shall pay to gaol keepers up to 13s.4d. per prisoner so discharged. colonials acts which infringed upon the english common or statutory law, or were against the interests of other american colonies were submitted to the privy council, which allowed or disallowed them. appeals from the colonial courts came to the privy council. judges in the colonies were appointed by royal governors and paid by colonial legislatures. they served at the pleasure of the king. colonial courts included superior courts of judicature, courts of assize, general gaol delivery, general sessions of the peace, inferior court of common pleas, and commissions of oyer and terminer. there were also justices of the peace, marshals, provosts, and attorney generals. there were few cases of vagrancy, theft, or homicide. this may have been because the people were few and dependent on each other, and economic opportunities were great. benefit of clergy for certain crimes was available in the american colonies to all who could read and write. for instance, it could be used in trials for manslaughter. appendix: sovereigns of england accession name relation 871 alfred the great 899 edward the elder son of alfred 924 aethelstan son of edward the elder 939 edmund son of edward the elder 946 eadred son of edward the elder 955 eadwig son of edmund 959 edgar son of edmund 975 edward the martyr son of edgar 978 aethelred the unready son of edgar 1016 edmund ironside son of aethelred the unready 1016 canute 1035 harold i harefoot son of canute 1040 hardicanute son of canute 1042 edward the confessor -son of aethelred the unready 1066 harold ii 1066 william i, the conquerer 1087 william ii -son of william i 1100 henry i (and matilda) son of william i 1135 stephen 1154 henry ii(and eleanor) grandson of henry i 1189 richard i, the lion-hearted son of henry ii 1199 john son of henry ii 1216 henry iii son of john 1272 edward i (and eleanor) son of henry iii 1307 edward ii son of edward i 1327 edward iii son of edward ii 1377 richard ii grandson of edward iii 1399 henry iv 1413 henry v son of henry iv 1422 henry vi son of henry v 1461 edward iv 1483 edward v son of edward iv 1483 richard iii 1485 henry vii (and elizabeth) 1509 henry viii son of henry vii 1547 edward vi son of henry viii 1553 mary daughter of henry viii 1558 elizabeth i daughter of henry viii 1603 james i 1625 charles i son of james i 1649 oliver cromwell 1660 charles ii -son of charles i 1685 james ii -son of charles i 1689 william and mary 1694 william iii 1702 anne granddaughter of james ii 1714 george i 1727 george ii son of george i 1760 george iii son of george ii bibliography 1. ancient laws and institutes of england, printed by command of his late majesty king william iv under the direction of the commissioners of the public records of the kingdom, vol 1; 1840. 2. the laws of the kings of england from edmund to henry i, a.j. robertson, 1925. 3. the statutes of the realm 4. statutes at large 5. a treatise of the laws of the forest, john manwood, 1615 6. history of english law; william holdsworth 7. history of english law, pollack and maitland, 1895 8. anglo-saxon charters, a. j. robertson, 1939 9. franchises of the city of london, george norton, 1829 10. -borough customs vol. 1, selden society, 1904 11. -royal writs 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letters and papers of richard iii and henry vii 63. -sons of the conqueror, g. slocombe, 1960 64. -the spirit of the classical canon law, richard helmholz, 1996 65. -open fields, charles orwin, 1938 66. -the medieval foundation of england, arthur bryant, 1967 67. -from alfred to henry iii, 871-1272, christopher brooks, 1961 68. -the anglo-norman nobility in the reign of henry i: the second generation, charlotte newman, 1988 69. -the birth of britain vol. 1, winston s. churchill, 1956 70. -medieval london, gordon hoime, 1927 71. -a history of london, stephen inwood, 1998 72. -tudor england, john guy, 1988 73. -reign of henry vii, r. storey, 1968 74. -elizabethan life in town and country, m. st. claire byrne, 1925 75. -the elizabethan world, edited by norman kotner, 1967 76. -the evolution of modern medicine, william osler, 1921 77. -shakespeare's england, oxford university press, 1916 78. -the lion and the throne, catherine bowen, 1956 79. -johnson's england, ed. a.s. turberville, 1933 80. -education in renaissance england, kenneth charlton, 1965 81. -the scholastic curriculum of early seventeenth-century cambridge, william -costello, 1958. 82. -english people on the eve of colonization 1603-1630, wallace notestein, 1954 83. -sir walter ralegh, willard wallace, 1959 84. -sir walter ralegh, robert lacey, 1974 85. -constitutional documents of the reign of james i, j.r. tanner, 1961 86. -history of the english people, volumes iii and iv, green 1890 87. -hume's history of england, volumes v and vi, david hume 88. -english society 1580-1680, keith wrightson, 1982 89. -the century of revolution 1603-1714, christopher hill, 1961 90. -charles i and the puritan upheaval, allen french, 1955 91. -charles i, christopher hibbert, 1968 92. -constitutional documents of the puritan revolution 1625-1660, samuel gardiner, 1927 93. -life and work of the people of england in the 17th century, dorothy hartley et al, 1929 94. -home life under the stuarts, elizabeth godfrey, 1903 95. -cromwell the lord protector, antonia fraser, 1973 96. -the greatness of oliver cromwell, maurice ashley, 1957 97. -acts and ordinances of the interregnum 1642-1660, c.h.firth & r.s.rait, 1911 98. -history of the english people, john r. green, 1916. 99. -a social and industrial history of england, f.w. tickner, 1929 100. a history of everyday things in england, marjorie and chb quennell, 1919 101. the english, norman f. cantor, 1967 102. a concise economic history of britain, john clapham, 1951 103. world book encyclopedia 104. encyclopedia britannica 105. history of the english constitution, rudolph gneist, 1889 106. the life of the law, alfred knight, 1996 107. norton anthology of english literature, ed. m.h.abrams, 1962 108. the bank of england, john clapham, 1945 109. the honorable company, a history of the east india company,john keay, 1991 110. a history of british india, w.w. hunter, 1966 111. the bank of england, john clapham, 1945 112. early speculative bubbles and increase in the supply of money, m.a. thesis, douglas e. french, 1992 113. royal charles, antonia fraser, 1980 114. charles ii, ronald hutton, 1989 115. the life and times of charles ii, christopher falkus, 1972 116. life in a noble household 1641-1700, gladys thomson, 1959 117. the weaker vessel, antonia fraser, 1984 118. a constitutional and legal history of medieval england, bryce lyon, 1960 119. the laws respecting women, j. johnson, 1777 120. mediaeval england, mary bateson, 1904 121. elizabeth: the struggle for the throne, david starkey, 2001 122. a social history of england, asa briggs, 1983 123. the year 1000, robert lacey, 1999 124. a history of chemistry, charles-albert reichen, 1963 125. john locke, economist and social scientist, karen vaughn, 1980 126. becoming visible, women in european history, ed. bridenthal & koonz, 1977 127. wonder book of the world's progress; inventions and customs, henry williams, 1935 128. industrial revolution in the eighteenth century, paul mantoux, 1961 129. eighteenth century england, dorothy marshall, 1962 130. georgian england, a.e. richardson, 1931 131. the pageant of georgian england, elizabeth burton, 1967 132. the georgian gentleman, michael brander, 1973 133. england in the eighteenth century, j.h. plumb, 1950 134. london life in the eighteenth century, m. dorothy george, 1925 135. law and jurisprudence in american history, stephen presser & -jamil zainaldin, 1995 136. england in the age of hogarth, derek jarrett, 1974 137. the first four georges, j.h. plumb, 195 138. the review of american colonial legislation by the king in council, elmer russell, 1915 139. select pleas of the crown, f.w. maitland, 1888 140. select pleas in manorial and other seignorial courts, f.w.maitland, 1889 141. the forms of action at common law, f.w. maitland, 1909 142. equity, f.w. maitland 143. the story of the declaration of independence, ira g. corn, jr., 1977 144. internet medieval sourcebook 145. out of the fiery furnace video, robert raymond 146. a history of chemistry, charles reichen, 1963 147. seven ideas that shook the universe, nathan spielberg, 1987 148. a history of the warfare of science with theology in christendom, andrew white, 1955 149. american political and social history, harold faulkner, 1941 150. essays in science, albert einstein, 1934 151. the character of physical law, richard feynman, 1965 152. dictionary of national biography, george smith, 1882 153. elizabeth i: collected works, ed. leah marcus et al, 2000 154. the crime of galileo, giorgio de santillana, 1955 155. from copernicus to einstein, hans reichenbach, 1942 156. the horizon book of the elizabethan world, ed. richard ketchum, 1967 157. tower of london, christopher hibbert, 1971 158. tudor royal proclamations, ed. p.l. hughes & j.f. larkin, 1964 159. selected historical essays of f.w.maitland, ed. helen cam, 1957 160. lloyd's of london, raymond flower & michael jones, 1974 161. weather, philip thompson etc., 1965 162. constitutional history of england, william stubbs, 1891 163. hillforts of england and wales, james dyer, 1981 164. the last two million years, reader's digest association, 1973 165. london: the civic spirit, robert goldston, 1969 166. domestic life in england, norah lofts, 1976 167. descartes, tom sorell, 1987 168. life in the english country house, mark girouard, 1978 169. extraordinary origins of everyday things, charles panati,1987 170. god's peace and king's peace: the laws of edward the confessor, bruce o'brien, 1999 171. the bill of rights, irving brant, 1965 172. issac newton, adventurer in thought; a. rupert hall, 1992 173. the life of issac newton, richard s. westfall, -1993 174. a history of the circle, ernest zebrowski, 1999 175. the world of water, j. gordon cook, 1957 176. the western intellectual tradition, j. bronowski & mazlish, 1960 177. human accomplishment, charles murray, 2003 178. magic, myth and medicine, d.t.atkinson, m.d., 1956 179. scientists who changed the world, lynn and gray poole, 1960 180. the new treasury of science, ed. harlow shapley, etc., 1965 181. food in history, reay tannahill, 1973 182. home, a short history of an idea, witold rybczynski, 1986 183. english villagers of the thirteenth century, george c. homans, 1941 184. english lawsuits from william i to richard i, selden society, 1990 185. the notebook of sir john port, selden society 186. spellman's reports, selden society 187. the mediaeval church, marshall baldwin, 1953 188. the court of common pleas in fifteenth century england, margaret hastings, 1947 189. english courts of law, hanbury and yardley, 1979 190. the jury, w. r. cornish, 1968 191. women in medieval society, susan stuart, 1976 192. the king and his courts john and henry iii, ralph turner, 1968 193. oxford history of the laws of england. vol 1, r. h. helmholz, 2004 194. leges henrici primi, l.j. downer, 1972 195. black's law dictionary, henry black, 1968 196. webster's dictionary, noah webster, 1983 197. an introduction to early english law, bill griffiths, 1995 198. pelican history of england: 1) roman britain, i.a. richmond, 1955 2) the beginnings of english society, dorothy whitelock, 1952 3) english society in the early middle ages, doris stenton, 1951 4) england in the late middle ages, a.r. myers, 1952 5) tudor england, s.t. bindoff, 1950 6) england in the seventeenth century, maurice ashley, 1952 -the end index abbey; abbot, abbess; abduction; accessory; account; administrator; admiralty; adultery; adverse possession; adulterated; advowson; aethelbert; aethelred; affidavit; agreement; agriculture; augustine. st.; aids; alderman; ale; alehouses; alfred; alienate; aliens; allegiance; alms; amerce; america; anabaptist; ancient; anglo-saxons; anglo-saxon chronicles; annulment; apothecaries; apparel laws; appeal; appellate; apprentices; appurtance; archbishop; architect; aristotle; arkwright, richard; arraign; arson; arthur; articles of religion; artificer; artisan; assault; assay; assign; assize; assizes; assumpsit; astrology; at pleasure; atheism; attainder; attaint; attorneys; babies; bachelor; bachelor of arts; back-berend; bacon, francis; bacon, roger; bacteriology; bail; bailiff; baker; ballads; bank of england; bankruptcy; baptist; bar; barber; barber-surgeon; bargain and sale; barons; baron court; barristers; bastard; bath; battery; beadle; beating; becket; beer; beggar; benefit of clergy; benevolence; beowulf; bequeath, bequest; bible; bigamy; bill; bill of attainder; bill of exchange; bill of rights; billet; birmingham; bishops; black death; blackstone, william; blinding; blodwite; blood-letting; bocland; book of common prayer; bordars; borough; boston; bot; boyle, robert; bracton, henry de; brass; brawling; breach; breach of the peace; bread; brewster; bribery; brick; bridge; bridgebot; bristol; brokers; bullock, case of; burgbot; burgess; burglary; burh; burial; burning; butcher; butler; calais; calvin; cambridge university; canals; cannon; capitalism; carbon dioxide; carpenter; carriages; carucage; carver; castle; castle-guard; cathedral; catholics; cattle; cavaliers; cecil, william; censorship; ceorl; certiorari; challenge; champerty; chancellor; chancery; chancery court; charter; chattel; chaucer, geoffrey; chemistry; chevage; chief justice; chief justiciars; child; child abuse; children; childwyte; christian; chivalry; christmas; church; church of england; church sanctuary; cicero; circuit; citizen; city; civil; civil courts; civil war; claim; clans; class; clergy; clerics; cloth-maker; coaches; coal; coffee houses; coin; coke, edward; college of physicians and surgeons; colonies; commission; common land; common law; commons, house of; commonwealth; compurgation; compurgator; confession; congregationalists; conqueror; consideration; constable; constitution; contract; conventile; conveyance; conviction; cooper; copernicus; copper; copyhold; copyrights; cordwainer; coronation charter; coroner; corporation; corruption of the blood; council; counterfeit; county; county courts; courtesy; court of common pleas; court of high commission; court of king's bench; courtesy; court martial; covenant; coverture; coventry; craft; craft guild; cranmer, thomas; creditor; crime; criminal; cromwell, oliver; cromwell, thomas; crown; cupbearer; curfew; currier; custody; customary tenant; customs; damages; danegeld; danes; darrein presentment; daughter; death; death penalty; debt, debtors; deceased; decree; deed; deer; defamation; defendant; demesne; denizen; deodand; descendant; descartes, renee; desertion; detinue; devise; dispensary; disseisin; dissenter; distraint; distress; divorce; doctorate; dog; doomsday book; doublet; dower; dowery; drake, francis; drover; drunkenness; duel; during good behavior; duties; dwelling; dyers; earl; east india company; easter; ecclesiastic; edith; education; eleanor, wife of edward i; eleanor, wife of henry ii; election; electricity; elizabeth, wife of henry vii; embroiderer; enclosure; english; engrose; episcopal church; equity; equity court; erasmus; escape from gaol; escheat, escheator; escuage; esquire; established church; estate; estate administration; estate tail; euclid; exchequer; excommunication; excise tax; executor; export; extent; eyre; factory; fair; father; fealty; fee; fee simple; fee tail; felony; feme covert; feme sole; feoff; fermat, pierre; feudal; feudal tenures; fihtwite; fine; fire; firdfare; fire-fighters; fishermen, fishmonger; flint; flogging; flymenfyrm; flying shuttle; folkmote; food riots; footmen; forced loans; forced marriage; forestall; forest charter; forestall; forestel; forests; forfeit; forgery; forms of action; fornication; fortifications; foster-lean; france; frank-almoin; franklin, benjamin; frankpledge; fraternity; fraud; freedom of speech; freehold, freeholder; freeman; freemason; freewoman; friar; frith guild; fuller; fustian; fyrd; fyrding; fyrdwite; gage; galilei, galileo; gambling; games; gaols; gaol distemper; gawaine; gentleman; gentry; geology; georgia; german, christopher st., gift; gilbert, william; guildhall; guilds; gin; glanvill; glass; glorious revolution; gloves; god; godfather; gold; goldsmiths; good parliament; goods; government; grain; grammar schools; grand assize; grand jury; grand tour; grants; grave; gravitation; greek; gresham, thomas; grithbrice; guardian, guardianship; guenevere; hair; hall; halley, edmond; hamsocne; hand-habbende; harboring; harrington, james; harvard college; health; heir; heresy; heriot; hidage; hide; high commission court; hilda; hillforts; holidays, holydays; homage; homicide; hooke, robert; horse; horse racing; hospitals; house-breaking; house-holder; house of commons; house of lords; houses; houses of correction; hue and cry; humanism, humors; hundred rolls; husbreche; huygens, christian; hundred; hundred courts; hunt; husband; hustings court; hut; illegitimacy; illness; illuminators; impeach; import; imprisonment; incest; income tax; independents; indenture; indictment; industry; infangthef; infiht; inflation; inheritance; innkeeper; inns of court; inoculation; inquest; insocna; insurance; interest; interrogatory; intestate; iron; itinerant; jail; jesus; jews; joan of arc; joint tenants; joint-stock companies; jointure; jones, inigo; journeyman; judge; jurisdiction; jurors; jury; justice; justices in eyre; justices of assize; justices of the peace; justiciar; kent county; keplar, johannes; kill; kin, kindred; king; king alfred the great; king charles i; king charles ii; king edward i; king edward the confessor; king george iii; king henry i; king henry ii; king henry vii; king henry viii; king james i; king james ii; king john; king richard the lion-hearted; king william and mary; king william i, the conqueror; king's peace; knight; knight's fee; knights' guild; knitting; laborer; ladies; land; landlord; land-owner; larceny; lastage; latin; law merchant; lawsuit; lawyer; laxton; lay; leap year; lease; leather; leet court; legacy; legerwite; legislation; legitimacy; leibniz, christian; leicester; letters; libel; liberi quadripartitus; library; license; life; life-estate; lighthouse; limb; linen; lion of justice; literacy; literature; littleton, thomas; livery; lloyds; locke, john; london; long parliament; longitude; lord; lords, house of; loriner; lottery; loyalty; machine; magistrates; magna carta; magnate; maiden; mail; magic; malicious prosecution; maintenance; manchester; manor; manor courts; manufacturing; manumission; marco polo; market; marriage; marriage agreement; marriage portion; marshall; marquise; massachusetts; master of arts; masters; matilda; mayflower; mayor; maypole; mead; measures; meat; medicine; melee; member; merchandise; merchant; merchant adventurers; merchant guilds; merchet; merciless parliament; mercy; merton; mesne; methodists; microscope; middlesex; midwives; military service; militia; miller; minister; minor; minstrels; miskenning; moat; model parliament; monarchy; monasteries; money; moneyer; monks; monopoly; moot; more, thomas; morgen-gift; morning gift; mort d'ancestor; mortgage; mortmain; mother; murder; murdrum; mutilation; napier, john; navy; newcastleon-tyne; new england; new model army; newspapers; newton, issac; new world; nobility; noblemen, nobles; nonconformists; normans; novel disseisin; nuisance; nun; oakham, william; oaths; offender; oil; one hundred year war; open field system; ordeal; ordinance; orphans; outlaw; oxford university; oxygen; papists; parent; parishes; parliament; parliament of saints; partition; party; pascal, blaise; passport; patents; pauper; pawn; peasant's revolt; peers; peine forte et dure; penalty; penitentiary; penn, william; pennsylvania; penny; per stirpes; perjury; personal injury; personal property; petty serjeanty; petition; petition of right; physicians; piers plowman; pigherds; pilgrim; pillory; pipe rolls; piracy; pirate; plague; plaintiff; plato; plays; pleading; pleas; police; pontage; poor; pope; popery; population; port; portreeve; portsoken ward; posse; possess; postal system; post mortem; pottery; praecipe in capite; pressing; presbyterians; prescription; presentment; priest; printing; prison; privy council; privy seal; probable cause; probate; proclamation; promise under seal; promissory note; property; prosecutor; prostitutes; protectorate; protestants; puritans; purveyance; putting out system; quakers; quaranteen, quarter sessions; queen; queen elizabeth i; queen mary; queen's bench; quo warranto; rack; ralegh, walter; rape; ray, john; real action; recognition; reeve; reformation; regrate; release; relief; religion; remainder; renaissance; rent; replevin; residence; restoration; reversion; revolt; reward; rights; riot; riot act; roads; robbery; robin hood; roemer, olaus; roman law; root and branch petition; roundheads; royal court; royal navy; royal society; royalists; rump parliament; russia; sacrament; sacrifice; sailor; sake and soke; sale; salt; saltworks; sanctuary; sandwich; saxon; scaetts; scavage; scholar; school; science; scolds; scot; scrofula; scutage; seal; seamen; searchers; search warrant; sedition, seditious; seisin; selfdefense; self-help; separatists; serf; serjeanty; servant; service; servitude; settlement; sewer; shakespeare, william; shaving; sheep; shelley's case; sheriff; sheriff's turn; shillings; ships; shipwreck; shire; shire courts; shire-gemot; shoemaker; short parliament; shrine; sickness; silver; slade's case; slander; slave; slingshot; smallpox; smith; smithfield; socage; sokemen; soldiers; solicitor; son; spanish armada; speedy pursuit; spinning; spinning jenny; spinning wheel; spinsters; spouse; st. augustine; st. germain; st. lazarus; st. paul's church; statute of laborers; squire; staple; star chamber court; strangers; steam; steel; stengesdint; stevinus; steward; stock-and-land lease; stocking-frame knitters; stocks; stolen goods; stone; stonehenge; straw; streets; stretbreche; subtenants; successor; sue; suit; summary; summon; sunday; supporters of the bill of rights society; surety; surgery; surname; swearing; swords; tale; tallage; tanner; tavern; tax; tea; team; ten commandments; tenancies; tenancy, tenant; tenants in common; tenement; tenure; term; testament; thames, river; theft; thegn; theodore; theology; theow; thermometer; thirty years' war; tile; tiler; tin; title; tolls; tories; torricelli, evangelista; tort; torture; tournament; tower hill; tower of london; town; town-reeve; trades, tradesmen; transportation; treason, high and petit; treasure trove; treasury; trespass; trespass on the case; trial by combat (battle); trover; turnpike; twelve; tyne; umbrella, unitarians; university; usury; use-trust; vagrants, vagrancy; vassal; verderer; verdict; vessels; vikings; vill; villages; villeinage; villeins; vintner; virginia; wall; wallis, john; war of the roses; ward, wardship; wardmoot; wardrobe; warrantor, warranty; waste; water; watermen; watermill; waterwheel; watt, james; wealthy; weapon; weaving, weavers; webs; wed; wedding; weights; weir; well; wer, wergeld; wesley, john; westminster; whigs; whipping; white tower; whitsuntide; widows; wife; wife-beating; wills; winchester; windmills; window tax; wine; witch; witchcraft; wite; witan; witanagemot; witnesses; wives; wolsey, thomas; wyclif, john; woman-covert; women; wool; wounding; writs; writs of assistance; writs of error; year books; yeomanry, yeomen